author: ROBERTS, Judge.

text:
    Felix M. HERNANDEZ v. The STATE of Texas, Appellee.
    No. 52874.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Gerald H. Goldstein and George Whitfield Baugh, San Antonio (court-appointed), for appellant.
    Ted Butler, Dist. Atty., Gordon V. Armstrong and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of heroin. Appellant was found guilty in a bench trial upon his plea of not guilty and his punishment was assessed at 20 years’ confinement in the Texas Department of Corrections.

Appellant’s sole complaint is that the manner in which the heroin was recovered “shocks the conscience.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 96 L.Ed. 183 (1952). His motion to suppress was overruled.

The record reflects that as two San Antonio police officers who were acting on a tip that appellant was in possession of heroin approached the appellant they “saw his hand come to his mouth and try to put something in his mouth . . . Believing the appellant to be secreting the heroin that they had been informed he was in possession of, the two officers rushed the appellant and wrestled him to the ground. While one officer held appellant’s arms, the other choked him until he spit out four balloons. Heroin was found in the balloons.

California decisions, People v. Parham, 60 Cal.2d 378, 33 Cal.Rptr. 497, 384 P.2d 1001 (1963); People v. Sanders, 268 Cal.2d 802, 74 Cal.Rptr. 350 (Cal.App.1969); People v. Erickson, 210 Cal.App.2d 177, 26 Cal.Rptr. 546 (Cal.App.1962); People v. Taylor, 191 Cal.App.2d 817, 13 Cal.Rptr. 73 (Cal.App.1961); People v. Brinson, 191 Cal.App.2d 253, 12 Cal.Rptr. 625 (Cal.App.1961); People v. Martinez, 130 Cal.App.2d 54, 278 P.2d 26 (Cal.App.1955); see also, People v. Bracamonte, 15 Cal.3d 394, 124 Cal.Rptr. 528, 540 P.2d 634 (Cal.Sup.1975), notwithstanding, the law is well settled in this jurisdiction that when an officer has probable cause to believe that an offense is being committed in his presence, see, Article 14.01, V.A.C. C.P., he has the right to take reasonable measures to insure that the incriminating evidence is not destroyed and that reasonable physical contact is one of these measures. McLeod v. State, 450 S.W.2d 321 (Tex.Cr.App.1970); Donley v. State, 435 S.W.2d 518 (Tex.Cr.App.1969); Johnson v. State, 397 S.W.2d 441 (Tex.Cr.App.1965); accord, Espinoza v. United States, 278 F.2d 802 (5th Circuit), cert. denied, 364 U.S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960).

Appellant’s ground of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Ex parte Billy Frederick ALLEN.
    No. 53477.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., Jerome L. Cro-ston, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Petitioner was convicted of the offense of robbery and sentenced to a fifteen (15) year term of imprisonment on March 22, 1973. The conviction was affirmed on appeal. See Allen v. State, 511 S.W.2d 53 (Tex.Cr.App.1974).

In this application for writ of habeas corpus, petitioner alleges that he has been denied certain jail time credit for time spent in jail prior to trial and during the pendency of his appeal. The trial court entered findings of fact and conclusions of law recommending that petitioner receive partial credit for certain jail time and recommended denial of credit for other periods of time. For this reason, :,we must review the history of this case as set out by the following chronological order of events:

(1) Petitioner was originally arrested on April 22, 1970, remaining in custody until July 1, 1970, at which time he posted bail pending trial.
(2) On July 28, 1970, petitioner was convicted and assessed a fifteen (15) year sentence, at which time he was recommitted to jail “pending appeal” even though he had not yet been formally sentenced. He remained in jail until December 12,1970, when he made an appeal bond.
(3) Petitioner was rearrested on May 18, 1971, apparently after his bond was forfeited. Thereafter, it appears from the records before this Court that petitioner was formally sentenced twice once on November 27, 1972, and again on March 22, 1973. Then formal notice of appeal was given.
(4) Petitioner remained in custody until July 3, 1973, at which time he was once again released on appeal bond.
(5) On June 26,1974, this Court affirmed petitioner’s conviction; and according to the records of the trial court, petitioner was rearrested on that date and has remained in continuous confinement since that date. The trial court ordered that petitioner’s sentence begin as of June 26, 1974.

Initially, it is noted that petitioner’s original sentence does not reflect that the trial court awarded him any pre-sentence jail time credit. In the trial court’s findings of fact and conclusions of law, there are no findings indicating that the failure to grant any pre-sentence credit was a clerical error; therefore, petitioner is not entitled to any pre-sentence jail time credit. See Ex parte Vessels, 467 S.W.2d 259 (Tex.Cr.App.1971); Ex parte Washburn, 459 S.W.2d 637 (Tex.Cr.App.1970); Ex parte Freeman, 486 S.W.2d 556 (Tex.Cr.App.1973). Compare Article 42.03, Sec. 2, V.A. C.C.P., as amended August 28, 1973.

Petitioner is, however, entitled to credit for all the time spent in jail pending appeal. See Robinson v. Beto, 426 F.2d 797 (5th Cir. 1970); Ex parte Griffith, 457 S.W.2d 60 (Tex.Cr.App.1970); Gardner v. State, 542 S.W.2d 127 (Tex.Cr.App.1976); and Ex parte Freeman, supra.

From the record before this Court, the trial court has made findings that:

“Although no notice of appeal was given until March 22, 1973, in Cause No. C70-2694-LJ to the extent the court approved the petitioner’s release on ‘appeal bond’ . on December 12,1970, the court treated the case as being on appeal on that date.”

It appears that due to certain clerical errors committed in the trial court formal sentence was never passed in a timely fashion, but all the parties assumed that the case was “pending appeal” at least as early as December 12, 1970. There is no showing that petitioner was at fault in bringing about these delays. Compare Ex parte Iglehart, 535 S.W.2d 185 (Tex.Cr.App.1976). Since the trial court is given the primary authority to determine credit for time spent in jail, we accept the trial court’s determination that petitioner’s conviction was “pending appeal” as of this date. See Ex parte Griffith, supra; Curlin v. State, 505 S.W.2d 889 (Tex.Cr.App.1974); Ex parte Bates, 538 S.W.2d 790 (Tex.Cr.App.1976).

Therefore, petitioner is entitled to credit for all time spent in jail from December 12, 1970, pending his appeal. Robinson v. Beto, supra. However, since petitioner was out of custody, on bond, from December 12, 1970, until May 18, 1971, and from July 3, 1973, until June 26, 1974, petitioner is not entitled to credit for these time periods out of custody. See Shaw v. State, 539 S.W.2d 887 (Tex.Cr.App.1976); Ex parte Francis, 510 S.W.2d 345 (Tex.Cr.App.1974); Ex parte Bates, supra.

Additionally, we note that since petitioner’s appeal was not affirmed until June 26,1974, petitioner would also be entitled to consideration for “good time” credit for time spent in jail pending appeal pursuant to the provisions of Article 61847, V.A.C.S. See Pruett v. State of Texas, 468 F.2d 51, aff’d en banc, 470 F.2d 1182 (5th Cir. 1973), aff’d in 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973); Gardner v. State, supra.

For the reasons stated, petitioner is entitled to “flat time” credit and “good time” credit consideration for time spent in jail pending his appeal from May 18, 1971, until July 3, 1973, and from June 26, 1974, until the present. The relief is partially granted to this extent. A copy of this opinion shall be delivered to the Texas Department of Corrections.

Opinion approved by the Court.


text:
    Alfred Maurice MALONE, Appellant, v. The STATE of Texas, Appellee.
    No. 54065.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    William C. Denton, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults, Ned B. Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for aggravated robbery. Appellant entered a plea of guilty and the jury assessed punishment at five years.

The record reflects that appellant was charged in separate indictments for two separate offenses of aggravated robbery which allegedly occurred in Houston on March 25, 1975. One robbery took place at a Stop’N’Go convenience store and another occurred at the Alston Produce Store. On September 2, 1975, appellant entered pleas of guilty to both offenses. The robbery at the Alston Produce Store is the gravamen of this prosecution.

Prior to entering his plea of guilty before the jury, appellant was properly admonished of the consequences of his plea as required by Art. 26.13, V.A.C.C.P. After the State rested its case, appellant testified in his own behalf. He related on cross-examination by the State that he and Nathan Grimes entered the Alston Produce Store on the night of March 25, 1975, and both made purchases. After leaving the store, appellant and Nathan were heading for appellant’s house when they encountered William Grimes, Nathan’s brother. William told the two that he needed to go to the produce store, and appellant and Nathan went back part of the way with him. William came out of the store with a coke, and the boys again headed home when William related that he was going back to “hold the place up.” Appellant testified that he thought William was joking, and he and Nathan told William they weren’t waiting on him. William returned to the store, and a few minutes later caught up with them. William told them that he “robbed the store” and showed appellant and Nathan some one dollar bills. Appellant testified that at that time he still thought William was joking until subsequently told by the police that a robbery had taken place. Appellant related that he was pleading guilty because he was involved in the robbery in that William had told him he was going to rob the store and did rob it. Appellant testified that he was not in the store during the robbery, that he did not see the robbery take place, and that he did not participate in the robbery.

In rebuttal, the State offered testimony of Marshall Ray Watson, who was working in the produce store on March 25, that appellant and another boy robbed him of $122.75 and of a .22 caliber pistol. Watson related that the other boy, not appellant, pointed a pistol at him and did all the talking.

No effort was made by defense counsel at any time during trial to withdraw the plea and no objection was made to the court’s charge to the jury instructing that a finding of guilty be rendered. The record reflects that appellant was represented by appointed counsel at trial and by separate appointed counsel on appeal.

In Gates v. State, 543 S.W.2d 360, we cited Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460, and stated:

“. . . The rule now appears to be that, where a plea of guilty is entered in a felony case, before a jury, and evidence is introduced which makes evident the innocence of the accused, or which reasonably and fairly raises an issue as to such fact, such evidence should be withdrawn or a plea of not guilty entered. At any and all events, the case should not proceed to final judgment under the plea of guilty.”

See also Woodberry v. State, Tex.Cr.App., 547 S.W.2d 629 (1977).

Both Gates, supra, and Woodberry, supra, involved pleas of guilty before juries on charges of aggravated robbery. In each case, the defendants admitted confronting the complaining witness with a pistol with the intent to rob, but denied that the robbery was completed as no property or money was taken. In both cases, the defendants failed to object to the court’s charge instructing the jury to enter a verdict of guilty and did not request to withdraw the guilty plea. This Court reversed the convictions in both cases, holding that from a review of the totality of the circumstances, the defendant was not voluntarily pleading guilty to the offense charged in the indictment. Our holdings in those cases dictate that the instant case must be reversed.

Appellant’s testimony raised a fact issue as to whether appellant entered the produce store and participated in the actual robbery or as to whether appellant was criminally responsible for an offense committed by another person.

The trial court instructed the jury to return a verdict of guilty. This was reversible error as a fact issue had been raised as to appellant’s guilt and the case should not have proceeded to final judgment under a plea of guilty.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Ex parte Virgil Lee FUQUA, III.
    No. 54183.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an application for writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P., in which petitioner attacked his 1972 conviction for robbery by assault with firearms in the 54th Judicial District Court of McLennan County in Cause No. 72-185-C. The convicting court found that the indictment under which appellant was convicted was fundamentally defective. We agree and order appellant discharged from further confinement as a result of that conviction.

In September, 1972, appellant was convicted by a jury in Cause No. 72-185-C of robbery by assault with firearms and they assessed his punishment at imprisonment for fifty (50) years. An examination of the indictment in that cause reveals that it is fundamentally defective because it fails to allege the ownership of the property alleged to have been taken. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App.1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Pittman v. State, 532 S.W.2d 97 (Tex.Cr.App.1976); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Franks v. State, 532 S.W.2d 631 (Tex.Cr.App.1973); Jones v. State, 535 S.W.2d 184 (Tex.Cr.App.1976); Sellers v. State, 536 S.W.2d 564 (Tex.Cr.App.1976); Adams v. State, 540 S.W.2d 733 (Tex.Cr.App.1976). Moreover, we have held that a fundamentally defective robbery indictment, such as the one in the instant case, may be challenged by way of a post conviction application for writ of habeas corpus. Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976).

Consequently, the writ of habeas corpus is granted; petitioner is ordered released from further confinement under Cause No. 72-185-C; the conviction in that cause is set aside and the indictment is ordered dismissed.


author: GREEN, Commissioner.

text:
    Ex parte Willie B. WILLIAMS.
    No. 54509.
    Court of Criminal Appeals of Texas.
    April 6, 1977.

      Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is a post-conviction application for the writ of habeas corpus brought by an inmate in the Texas Department of Corrections pursuant to Article 11.07, V.A.C.C.P., and originally filed in the district court of Harrison County, 71st Judicial District of Texas.

Petitioner was convicted on pleas of guilty in that court in 1963 for rape in trial court Cause No. 19,756, and for robbery by assault in No. 19,758. In both cases the indigent petitioner was represented by court-appointed counsel. Punishment was assessed at ninety-nine years for rape, and fifty years for robbery. Petitioner’s claim in his application for the writ of habeas corpus that his convictions were void and his subsequent confinement was illegal is based on his contention that in his trials he was deprived of due process since he was not afforded competent legal counsel to assist him in his defense.

The record of the hearing conducted by the trial court on the application reflects that in his 1963 trials, supra, petitioner was represented by the same court-appointed attorney of whom we wrote in Ex parte Greer, Tex.Cr.App., 505 S.W.2d 295, and in Ex parte Love, Tex.Cr.App., 468 S.W.2d 836, and the evidence concerning the lack of competency of said attorney was very similar at the instant hearing as is recited in our opinions in those cases. In the instant cause and based on the testimony of the district attorney who prosecuted in the 1963 trials, the court reporter who reported the proceedings of those trials, of petitioner who testified at the instant hearing, and of a letter from the Harrison County sheriff to the Board of Pardons and Paroles recommending clemency because of the inadequacy of the legal representation accorded petitioner, the trial judge who conducted the instant hearing made fact findings similar to those reflected in our opinions in Greer and Love, supra. Consistent with these findings, the court concluded as a matter of law:

“The court finds from the foregoing facts: The defendant, Willie B. Williams, did not have adequate counsel to represent and safeguard his rights; therefore, the convictions in Cause 19756 and 19758 should be reversed and a new trial granted.”

What we stated in Greer v. State, supra, applies also to the evidence and the court’s findings and concluMons in the instant proceeding:

“While we are not bound by the findings and conclusions of the court in such a situation, see Ex Parte Marez, 464 S.W.2d 866 (Tex.Cr.App.1971), those findings have adequate support in the record of this case. Additionally, the evidence in this case is almost exactly like that in Ex Parte Love, 468 S.W.2d 836 (Tex.Cr.App.1971), the same witnesses having appeared and the State having stipulated the testimony of the court reporter.
“If we are to be consistent, we must conclude as did the Court in Ex Parte Love, supra, that the petitioner’s trial was a sham.”

We find that the court’s findings and conclusions are fully supported by the record, and that petitioner is entitled to the relief he seeks. Consequently, the writ is granted. Petitioner is ordered discharged from confinement under the convictions stated above, and returned to the custody of the sheriff of Harrison County, to answer to the indictments pending against him.

Opinion approved by the Court.

      . At the instant hearing, the court reporter testified in person as a witness for petitioner.


author: ONION, Presiding Justice.

text:
    Billy Joe TYRA v. The STATE of Texas, Appellee.
    No. 51276.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Charles Warren Van Cleve, Arlington, for appellant.
    Henry Wade, Dist. Atty., James B. Scott, Gerald A. Banks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Justice.

The conviction is for fondling the sexual parts of a female child under the age of fourteen (14) years in violation of Art. 535d, Vernon’s Ann.P.C. (1925), as amended. The punishment, enhanced by two prior felony convictions under Art. 63, Vernon’s Ann. P.C., was assessed at life imprisonment.

In June of 1973 appellant was convicted by a jury of fondling the sexual parts of a female child under the age of fourteen (14) years. The court assessed punishment at life imprisonment, having found that appellant had been convicted of two prior felonies. On appeal to this Court we overruled all of appellant’s contentions as they related to the determination of his guilt; however, because there was error during the punishment phase of the trial and the court had assessed the punishment, we set aside appellant’s life sentence and remanded the case to the trial court for a new hearing or trial on the issue of the punishment to be assessed by the court. Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976). In June of 1976, a new punishment hearing was held in the trial court. After hearing evidence the trial court again found that appellant had two prior felony convictions and again assessed appellant’s punishment at life imprisonment. The court then “re-sentenced” appellant and notice of appeal was given.

An examination of the record reveals that the trial court did not enter a new judgment after the June 1976 punishment hearing. The only judgment found in the record is the one that was entered after appellant’s trial and conviction in June of 1973. Although not specifically stated in our opinion in Tyra v. State, supra, the effect of our holding was at least to set aside or reverse that part of the 1973 judgment which had assessed appellant’s punishment at life imprisonment. Consequently, in the record before us we have no completed judgment upon which the trial court could pronounce sentence or a “re-sentence” after the 1976 punishment hearing. For this reason we have concluded that the present appeal must be dismissed.

Art. 42.01, Vernon’s Ann.C.C.P., sets out the requisites of a judgment. Sec. 1(10) of that statute provides that a judgment must show the punishment assessed against the defendant. This is an essential part of a judgment. Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.1976); Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.1975). Without a recitation in an instrument purporting to be a judgment of the penalty assessed and ordering the defendant to be punished “as has been determined” the instrument does not comport with the requirements of Art. 42.01, supra. Savant v. State, 535 S.W.2d 190 (Tex.Cr.App.1976).

Art. 40.09, Sec. 1, Vernon’s Ann.C. C.P., provides that the record on appeal shall always include, whether designated by the parties or not, a copy of the judgment. Without a judgment as defined by Art. 42.01, supra, the pronouncement of sentence under Art. 42.02, Vernon’s Ann.C.C.P., is unauthorized. Scott v. State, 461 S.W.2d 619 (Tex.Cr.App.1971); Morgan v. State, 515 S.W.2d 278 (Tex.Cr.App.1974). The sentence must be based upon the judgment. Scott v. State, supra; Morgan v. State, supra. Because our decision in Tyra v. State, supra, set aside the 1973 judgment which assessed appellant’s punishment at life imprisonment, that judgment could no longer support the 1976 “re-sentence” which ordered appellant confined in the Department of Corrections for life.

Upon receipt by the clerk of the trial court of our mandate of dismissal, the trial court should enter a new judgment which contains all the requisites of Art. 42.01, supra. See Savant v. State, supra, and compare Mendez v. State, 535 S.W.2d 365 (Tex.Cr.App.1976). After the entry of that judgment sentence may then be pronounced within the time provided by Art. 42.03, Vernon’s Ann.C.C.P., and appellant may again perfect an appeal by giving notice of appeal within the time provided by Art. 44.08(c), Vernon’s Ann.C.C.P.

The appeal is dismissed.


author: DALLY, Commissioner. ROBERTS, Judge, PHILLIPS, Judge,

text:
    Ex parte Roy Dale GREEN.
    No. 53560.
    Court of Criminal Appeals of Texas.
    April 6, 1977.
    Brantley Pringle, Fort Worth, Jack D. Welch, Marlin, for appellant.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction writ of habeas corpus proceeding. See Article 11.07, V.A. C.C.P.

On August 6, 1966, Kenneth McDuff and Petitioner kidnapped two young boys and a girl in Tarrant County. The two boys, Robert Brand and Marcus Dunnam, were locked in the trunk of one of the victims’ car. McDuff later opened the trunk and fired six shots from a pistol into the heads of the boys, killing them instantly.

Petitioner Green was charged in two separate indictments; one indictment charged him with the murder of Marcus Dunnam; the other charged him with the murder of Robert Brand. On June 10,1968, Petitioner was tried before a jury on the indictment charging him with the murder of Marcus Dunnam. The jury returned a verdict of guilty of murder without malice, and on June 13, 1968, the court assessed punishment and sentenced Petitioner to the maximum punishment of imprisonment for 5 years.

On March 20,1969, Petitioner filed a plea of prior conviction urging that the doctrine of carving as applied in this State estopped and precluded the State from prosecuting him on the indictment charging the murder of Robert Brand. This plea was overruled and on March 21, 1969, the Petitioner then plead guilty to the indictment charging him with the murder of Robert Brand. The State did not seek the death penalty, and the Petitioner was sentenced to imprisonment for 25 years.

On June 23, 1969, the Supreme Court of the United States held in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that the Double Jeopardy Clause of the United States Constitution was applicable to the states. In 1970 the Supreme Court held in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), that the doctrine of collateral estoppel is an embodiment of the Double Jeopardy Clause.

In 1974, Petitioner filed a writ of habeas corpus in the District Court of Tarrant County; relief was denied without written opinion. Petitioner then filed a writ of habeas corpus in the United States District Court for the Northern District of Texas. The United States district court, without reaching the merits, rejected Petitioner’s writ in reliance upon Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967), and Harris v. United States, 237 F.2d 274 (8th Cir. 1956), and held that Petitioner’s claim was foreclosed by his plea of guilty. While his appeal was pending in the Fifth Circuit, the United States Supreme Court announced its decision in Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975). Menna held that a plea of guilty does not waive a claim of double jeopardy under the United States Constitution. Thereafter, the Fifth Circuit remanded the case to the district court for consideration of Petitioner’s claim on the merits. Green v. Estelle, 524 F.2d 1243 (5th Cir. 1975). The federal district court, on February 26,1976, dismissed Petitioner’s application in order to allow the state courts an opportunity to consider his constitutional question on its merits in light of Menna v. New York, supra.

The federal district court order of February 26, 1976, states:

“In this Circuit, a strong policy exists to allow the state courts an initial opportunity to rule on a constitutional issue where the specific federal right was asserted at the state level in an ambiguous manner or where a subsequent Supreme Court ruling creates the possibility that the state might change its decisional law if given the opportunity. Comity requires that the state court be given the initial opportunity to assess the factual foundation of Green’s claims of double jeopardy and to address the issue to be resolved in its opinion. Donlavey v. Smith, 432 F.2d 940 (5th Cir. 1970). See McBride v. Estelle, 507 F.2d 903 (5th Cir. 1975); Alonzo v. Estelle, 500 F.2d 672 (5th Cir. 1974).”

Instead of either appealing this order to the Fifth Circuit or proceeding in the state court where the Petitioner was convicted, Petitioner appealed from the federal court order and at the same time filed his application for writ of habeas corpus in the District Court of Falls County. On motion by the State, the cause was properly transferred from Falls County to Criminal District Court Number One of Tarrant County, the court in which Petitioner was convicted. This Court unambiguously stated in Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967) that:

“The primary responsibility now being cast upon the convicting court by the amendment of Art. 11.07, the Court of Criminal Appeals will no longer exercise its constitutional original jurisdiction to entertain petitions seeking post conviction relief from confinement under a felony case unless it be shown that the petition, or one containing like sworn allegations of fact, has been presented to the judge of the convicting court.”

An attempt at “forum shopping,” which is contrary to the provisions of Article 11.07, V.A.C.C.P., merely delays a speedy hearing on the merits of the petition.

Further delay was caused by prosecuting an appeal to the Fifth Circuit from the federal court order at the same time Petitioner proceeded on his application for writ of habeas corpus in the courts of this State. A petitioner must decide which forum he will proceed in, because this Court will not, and a trial court in this State should not, consider a petitioner’s application so long as the federal courts retain jurisdiction of the same matter. Ex parte Powers, 487 S.W.2d 101 (Tex.Cr.App.1972). The Fifth Circuit Court of Appeals has now dismissed Petitioner’s appeal from the federal district court order; therefore, we will now consider Petitioner’s application on its merits.

Petitioner contends that the doctrine of collateral estoppel as announced in Ashe v. Swenson, supra, precludes the State from relitigating the issue of his state of mind at the time the two boys were killed. He asserts that the evidence shows that both boys were killed virtually simultaneously by Kenneth McDuff. Petitioner argues that the jury’s verdict at his first trial, finding him guilty as a principal of the murder without malice of Marcus Dunnam, was an implied acquittal of the charge of murder with malice, therefore the State cannot convict him of an offense higher than murder without malice of Robert Brand at the subsequent trial.

In Ashe v. Swenson, supra, Ashe had been acquitted by a jury of robbing one of six poker players at a poker game due to insufficient evidence. The Supreme Court found that the only rationally conceivable issue at the trial was the identity of the defendant as one of the robbers. Therefore, since the jury decided the issue of identity adverse to the State at the first trial, the State was precluded from charging Ashe with the robbery of another poker player based on the same transaction. The Court held that the theory of collateral estoppel applies to criminal cases and is embodied in the Fifth Amendment’s guaranty against double jeopardy. Thus, once an issue of ultimate fact has been determined by a valid and final judgment of acquittal, a defendant cannot be expected to “run the gauntlet” a second time. In applying this doctrine, the court stated:

“The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’ ”

At the evidentiary hearing in the district court, the record reflects that no appeal was taken from the proceedings in Petitioner’s first trial. No record was made of that trial, the court reporter who recorded the proceeding has since died, and no one has been able to locate a statement of facts of the testimony. However, the record shows that the evidence at Petitioner’s first trial was substantially the same as the evidence received at Kenneth McDuff’s trial. The record at McDuff’s trial has been made a part of this record. In addition, the record contains a transcript of the proceedings at Petitioner’s first trial, which includes the indictment, court’s charge, judgment, and sentence. Other than physical evidence, the only evidence as to the events that occurred on August 6, 1966, is Petitioner’s testimony and his written confession.

At Petitioner’s first trial the court charged the jury on the law of murder, principals, and duress. The charge instructed the jury to find Petitioner either guilty of murder with malice, guilty of murder without malice, or not guilty. Since the jury found Petitioner guilty of murder without malice, we will focus our attention on the court’s charge on malice in order to determine whether the jury’s verdict was the result of a factual determination of the issue of malice. That portion of the charge was as follows:

“ ‘Malice aforethought’ is the voluntary and intentional doing of an unlawful act by one of sound memory and discretion with the purpose, means and ability to accomplish the reasonable and probable consequences of the act. Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse, or exterminate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from the acts committed or words spoken. Malice aforethought as used in this charge, means considered, resolved or thought out, for any length of time beforehand, however short, and existing at the time of the offense alleged. Murder without malice is a voluntary homicide, committed without justification or excuse, under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection.”

The record reflects that Petitioner and Kenneth McDuff were riding around Fort Worth on August 6, 1966. Sometime after 9:00 p. m. they went to a baseball park and saw a car parked on a gravel road. They stopped about 150 yards from the car; McDuff got his gun, then they walked toward the car. About halfway to the car Petitioner stopped and McDuff went on. McDuff told the two boys and girl to get out of the car or he would shoot them. McDuff put the boys and girl in the trunk of their car. After they drove to another location McDuff took the girl out of the trunk and instructed Petitioner to put her in the trunk -of his car. Petitioner stated that McDuff then said, “We can’t leave any witnesses. I’m gonna have to knock them off.” Petitioner stated that he thought McDuff was joking. Petitioner turned toward McDuff who then stuck the gun into the trunk where the boys were and shot six times. Petitioner said he saw the fire come out of the gun on the first shot, then covered his ears and looked away. After they removed their fingerprints from the car and covered their tire tracks they left in McDuff’s car. After driving to another location they both raped the girl; then while Petitioner held the girl’s feet McDuff strangled the girl with a broomstick.

The record shows that there was no evidence before the jury at Petitioner’s first trial raising the issue of murder without malice. There is no testimony from any source that either Petitioner or McDuff killed the two boys under the immediate influence of a sudden passion arising from an adequate cause. A charge on murder without malice was not required by the facts of this case, see Leza v. State, 149 Tex.Cr.R. 448, 195 S.W.2d 552 (Tex.Cr.App.1946); Bridges v. State, 128 Tex.Cr.R. 544, 83 S.W.2d 671 (Tex.Cr.App.1935); however, Petitioner could not complain of a beneficial charge erroneously submitted. Therefore, the only rational conclusion that this Court can make is that the jury at Petitioner’s first trial did not ground its verdict upon a factual determination of Petitioner’s malice. This conclusion is further supported by the habeas corpus testimony of J. A. Gilbert, a juror at Petitioner’s trial. He said that the defense introduced testimony of Petitioner’s youth and cooperation with the law enforcement authorities. He testified that the jury’s verdict was not based on a true finding of no malice, but was based upon Petitioner’s youth, his cooperation with the police, and his lack of participation in the actual killing of Dunnam.

From an examination of the entire record, we can only say that the jury grounded its verdict upon consideration of matters other than the factual determination of malice. Therefore, the State was not collaterally estopped from charging Petitioner with the murder with malice of Robert Brand at the subsequent trial.

The relief requested is denied.

Opinion approved by the Court.

ONION, P. J., concurs in the result.

ROBERTS, Judge,

dissenting.

I believe that the State was barred from prosecuting appellant for murder with malice in this case, since the issue of malice had already been decided in appellant’s favor. I would uphold the plea of former jeopardy.

Under our former Penal Code the only difference between murder with malice and murder without malice was the fact issue of malice. Arts. 1257b, 1257c, V.A.P.C. (1925); Mosley v. State, 149 Tex.Cr.R. 523, 528, 196 S.W.2d 822, 825 (1946).

In the earlier case against appellant (in which Dunnam was the victim) the jury acquitted appellant on the malice issue and found him guilty only of murder without malice. That verdict precludes the State from any future prosecution of the appellant for murder with malice in that case; should the State be required to re-prosecute, it could allege no greater offense than murder without malice. Turner v. State, 518 S.W.2d 243 (Tex.Cr.App.1975).

In this case (in which Brand was the victim) the appellant was found guilty of murder with malice and his punishment was assessed at a term twenty years greater than the maximum possible punishment for the offense of murder without malice. It is clear that appellant’s intent and state of mind were exactly the same during the commission of this offense as they were during the killing of Dunnam; the facts submit to no other interpretation, since the death of both resulted from a single course of conduct.

In such a case I believe the holding in Turner prohibits the State from prosecuting appellant for the offense of murder with malice of Brand, since the appellant had already'been acquitted on the issue oí malice. It seems to me that the holding in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), relied upon in Turner, requires nothing less. Here, as in Ashe, “an issue of ultimate fact has . been determined by a valid and final judgment, [and] that issue cannot again be litigated between the same parties in any future lawsuit.” 397 U.S., at 443, 90 S.Ct. at 1194.

I am aware that this Court’s holding in Simien v. State, 514 S.W.2d 452 (Tex.Cr.App.1974), supports the majority’s position. However, that case is incorrectly decided and should be overruled. The case is incorrect because it mistakenly holds that Ashe v. Swenson, supra, applies only to outright acquittals. Clearly, the holding in Ashe also applies to a partial acquittal, such as occurred in this case. Pope v. State, 509 S.W.2d 593 (Tex.Cr.App.1974); see also Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), and Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

I do not agree that the testimony of J. A. Gilbert can be used to support the majority opinion. I would hold that Gilbert’s testimony is nothing more nor less than an attempt to impeach his verdict, and therefore incompetent and not to be considered. Adams v. State, 481 S.W.2d 884 (Tex.Cr.App.1972); Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App.1973). To hold otherwise would be to say that a juror may impeach his verdict if it will support the conviction but may not do so if it will tend to reverse the conviction.

The majority also indicates that because a charge on murder without malice was not supported by the evidence at the first trial, the jury’s finding of a lack of malice can be ignored. This is incorrect for two reasons. First, such a holding is a repudiation of the constitutional right to trial by jury. U.S. Const. Amend. 6; Art. 1, Sec. 15, Vernon’s Ann.Tex.Const. Would the majority reach the same result if no charge on murder without malice were given in the first trial and the jury acquitted appellant? I see no difference between the two cases. Second, the majority’s holding disregards the well-established rule that where one is charged with a greater offense but convicted of a lesser included offense the evidence will be deemed sufficient if it proves only the elements of the greater offense. Daniels v. State, 464 S.W.2d 368 (Tex.Cr.App.1971); Arts. 37.08, 37.09, Vernon’s Ann.C.C.P. Evidently, this rule too shall apply only where it serves to support the conviction.

I also believe that by sustaining the State’s contention that this Court may ignore the jury’s verdict of murder without malice, this Court is allowing the State to do indirectly what it may not do directly: appeal a criminal case in violation of Article 5, Section 26 of the Texas Constitution. See White v. State, 543 S.W.2d 366 (Tex.Cr.App.1976), and authorities there cited.

The requested relief should be granted. I dissent.

PHILLIPS, Judge,

dissenting.

This is a post conviction writ of habeas corpus proceeding. See Art. 11.07, V.A.C. C.P.

On August 6, 1966, Kenneth McDuff and Petitioner kidnapped two young boys and a girl in Tarrant County. The two boys, Robert Brand and Marcus Dunnam, were locked in the trunk of one of the victims’ car. McDuff later opened the trunk and fired six shots from a pistol into the heads of the boys, killing them instantly.

Petitioner Green was charged in two separate indictments; one indictment charged him with the murder of Marcus Dunnam; the other charged him with the murder of Robert Brand. On June 10,1968, Petitioner was tried before a jury on the indictment charging him with the murder of Marcus Dunnam. The jury returned a verdict of guilty of murder without malice, and on June 13, 1968, the court assessed punishment and sentenced Petitioner to the maximum punishment of imprisonment for five years.

On March 20,1969, Petitioner filed a plea of prior conviction urging that the doctrine of carving as applied in this State estopped and precluded the State from prosecuting him on the indictment charging the murder of Robert Brand. This plea was overruled and on March 21, 1969, the Petitioner then pled guilty to the indictment charging him with the murder of Robert Brand. The State did not seek the death penalty, and the Petitioner was sentenced to imprisonment for twenty-five years.

Petitioner contends that under the doctrine of “collateral estoppel” the fact issue of malice as to the simultaneous killing of both of said boys was adjudicated adversely to the State by the 1968 finding of the jury that he was guilty of the offense of murder without malice of Marcus Dunnam and that his 1969 conviction of murder with malice of Robert Brand was in violation of the law of collateral estoppel.

The Supreme Court of the United States has held that the double jeopardy clause of the United States Constitution is applied to the states through the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), that even a counseled plea of guilty does not preclude consideration of a question of double jeopardy, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975), and that the principle of collateral estoppel is embodied in the constitutional guarantee against double jeopardy, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970).

“Collateral estoppel” means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future criminal prosecution, Ashe v. Swenson, supra. It has been held that an acquittal of burglary with intent to commit rape bars a prosecution for assault with intent to have committed the same rape, Johnson v. Estelle, 506 F.2d 347 (5th Cir. 1975), and that acquittal of the armed robbery of one of the six players robbed simultaneously at a poker game was a bar to prosecution as to another of said players, Ashe v. Swenson, supra.

The State contends herein that we should go behind the jury’s specific finding of murder without malice and consider whether the issue of murder without malice was in fact raised by the evidence so as to justify the court’s charge and the jury’s finding thereon. Such contention is premised upon the theory that the Supreme Court in Ashe v. Swenson, supra, examined the record to determine what ultimate facts must have been determined to support the general verdict of, acquittal.

The State fails to take due cognizance of the fact that in Ashe v. Swenson, supra, there was only a general verdict of acquittal, whereas in this case we have a special verdict finding that the murder in question was committed “without malice”. The State having specifically alleged the existence of malice aforethought in its pleading, the defendant having joined the issue therewith by his plea of not guilty, and the jury having returned a special verdict specifically finding in petitioner’s favor on said issue, the State is barred from relitigating said fact issue, or questioning, in a collateral proceeding, the propriety of the court’s charge or sufficiency of the evidence thereon. Black on Judgments, Vol. 2, 2nd Ed., Sec. 625, p. 952. The law is settled in this State that where a defendant is tried on an indictment charging murder with malice aforethought a verdict that specifically finds him to be guilty of murder without malice constitutes a finding of nonexistence of malice aforethought. Turner v. State; 518 S.W.2d 243. Petitioner having served the maximum sentence that could have' been imposed under the law for the 1969 conviction is entitled to be discharged from further confinement.


author: DUNAGAN, Chief Justice.

text:
    Lloyd D. BLAYLOCK, General Contractor, Inc., et al., Appellants, v. DOLLAR INNS OF AMERICA, INC., et al., Appellees.
    No. 984.
    Court of Civil Appeals of Texas, Tyler.
    Jan. 27, 1977.
    Rehearing Denied March 17, 1977.

      Bowen L. Florsheim, Smith, Smith, Dunlap & Canterbury, George C. Dunlap, Dallas, for appellants.
    Alfred Sallinger, Saner, Jack, Sallinger & Nichols, T. Rick Frazier, Dallas, for appel-lees.
   DUNAGAN, Chief Justice.

This is a mechanic’s and materialman’s lien priority case brought on appeal from the judgment of the 162nd Judicial District Court of Dallas County, Texas.

Lloyd D. Blaylock General Contractor, Inc. and Lloyd D. Blaylock, individually, (hereafter called “appellants”) brought suit complaining against Dollar Inns of America, Inc. (hereafter called “Dollar Inns”), K. R. Riley and Diversified Mortgage Investors (hereafter called “appellee”). The controversy arose from the construction of two motels on separate lots located in Fort Worth and Irving, Texas. Dollar Inns contracted with appellants as general contractor for the construction of the motel. Dollar Inns obtained interim financing for the purchase of the lots and construction of the motels from Palomar Mortgage Investors (hereafter called “Palomar”). Palomar in exchange for its loans received Dollar Inns’ promissory notes and secured same through deeds of trust covering the two properties and improvements (principally motels) to be built thereon. Palomar sold and assigned its security interests in the properties to appellee herein which, as prearranged through commitment agreements, was to provide permanent financing to Dollar Inns for the projects.

After construction of the motels was completed, appellants duly perfected their mechanic’s liens pursuant to article 5452, et seq., Tex.Rev.Civ.Stat.Ann. Appellants filed this suit to recover the balance due them under the construction contract, for foreclosure of their mechanic’s liens on the two properties and for an order of sale of the two properties. Appellants later joined appellees seeking a declaration that appellants’ mechanic’s liens were superior to the appellee’s deed of trust liens on the properties, and that appellee’s legal title to the two properties was burdened with appellants’ mechanic’s liens; and, in the alternative, that if the court found that appellants’ liens were cut off by appellee’s foreclosure, that appellants were entitled to recover the amount of their liens from the consideration received by appellee at foreclosure sale in excess of the purchase money loaned by appellee’s assignor (Palomar).

While the suit was pending, Dollar Inns defaulted on the deeds of trust held by appellee. Appellee foreclosed on the deeds of trust and purchased the properties at its own foreclosure sale.

Appellee answered with a general denial and additionally plead, among other things, that it was an innocent purchaser for value, that the deed of trust liens against the properties were superior to appellants’ liens, that the monies loaned by Palomar for the purchase of the properties were used to retire valid and superior liens existing on the properties, and that appellee was subro-gated to Palomar’s rights and priorities.

On February 21, 1975, an interlocutory summary judgment was granted to appellants against Dollar Inns and K. R. Riley. These two parties did not appeal the summary judgment against them and they are not parties to this appeal. They did not participate in the trial of this dispute.

The trial court rendered its judgment on January 15, 1976, after non-jury trial, finding in favor of appellee and holding that appellants were entitled to take nothing by their action against appellee. The judgment did incorporate the summary judgment granted against Dollar Inns and K. R. Riley. The court made findings of fact and conclusions of law. Appellants allege 18 points of error.

For clarity, the two properties will be referred to as the Fort Worth and Irving property, respectively. Due to differences in important dates concerning the inception and priority of the liens in question on each property, a detailed narration of the facts as to each is required. Prior to trial, appellants and appellee entered into extensive stipulations which greatly reduced the complexity of the dispute for the trial court.

In either October or November of 1972, Dollar Inns entered into negotiations with appellants for the construction of two motels on the two tracts of land yet to be purchased by Dollar Inns. Dollar Inns entered into a contract of sale to purchase the Fort Worth Property on December 11,1972, and entered into a contract of sale to purchase the Irving property on January 22, 1973. In late December appellants and Dollar Inns entered into a preliminary written agreement whereby appellants agreed to construct the motels pursuant to a general construction contract to be executed at a later date. Dollar Inns at that time directed appellants to begin work immediately on both projects. Dollar Inns had not yet closed the sales of the two properties.

During this same period of time Dollar Inns was negotiating with Palomar for interim financing of the projects. Dollar Inns was seeking package financing for purchase of the properties and construction of the motels thereon. On February 16, 1973, Dollar Inns and Palomar entered into two loan agreements whereby Palomar agreed to loan Dollar Inns the funds necessary for the purchase of both properties and construction of the motels.

It appears from the loan agreements (which were stipulated into evidence and contained in the record) and from appellants’ and appellee’s briefs that appellee was involved in the entire loan transactions as early as November 10, 1972; that Palomar was to provide interim financing; that through a “commitment” issued by appellee and through a “Tri-Party Agreement” executed with Palomar and Dollar Inns appel-lee was to provide permanent financing to Dollar Inns; that it was agreed and understood by all parties that the loan proceeds were to be used for the purchase of the properties and construction of the motels to be located thereon.

The loan agreements were controlling over the provisions in the notes and deeds of trust executed pursuant to the loan agreements. The control given Palomar by the loan agreements was very extensive, providing, among other things, that: (1) Palomar’s duty to make loan disbursements was to be coordinated with progressive reports on the stage of construction as well as Dollar Inns’s disbursements to the contractor; (2) Palomar was to receive monthly progress reports on the stage of construction accompanied by architect and engineer certificates where applicable; (3) all requests by Dollar Inns for disbursements were to be accompanied by proof as to paid and unpaid construction bills, lien waivers for all work and materials as required by the title company, and current status reports of the contractor’s accounts; (4) Palomar had the right of entry at all times for inspection of the improvements; (5) use of the loan proceeds were to be used strictly for purposes specified in the loan agreement, said purposes chiefly consisting of construction of the motels; and (6) Palomar had the right to take control of the properties to effect completion of the motels.

It should also be noted that Palomar had actual notice that appellants had been engaged as general contractor, as shown by a letter dated February 19, 1973, from appellants to Palomar. In that letter appellants formally notified Palomar that they were the general contractor for the projects, that appellants agreed to continue construction at Palomar’s request in the event Dollar Inns defaulted on its notes and obligations, and that all work done on Palomar’s request after default was conditioned on appellants being reimbursed in accordance with the construction agreement. Appellants further agreed that no changes in work resulting in a change of contract price would be made without Palomar’s written approval of the change order.

As mentioned earlier, appellants began work at Dollar Inns’ urging subsequent to the execution of Dollar Inns’ contracts of sale but prior to the actual closings of the purchase transactions. Although the relevant facts concerning both the Fort Worth and Irving job sites are basically the same, there is some variance, particularly as to dates. Therefore, the course of events as to each job site will be presented below separately.

FORT WORTH PROJECT

The first on-site work on the Fort Worth property consisted of a subsurface investigation and testing of the soil which was performed by an engineering subcontractor of appellants. The work included the drilling of core borings and was performed prior to January 24, 1973. On January 25, 1973, another subcontractor began survey work and the placing of various stakes and iron rods to locate drives, grades, building sites, and other locations. On that date materials in the form of bundles of engineering stakes were delivered to the job site. By March 1, 1973, approximately 150 wooden stakes and 8 iron rods had been placed at various locations on the property. The stakes and iron rods were driven vertically into the ground, stood from one to three feet above ground level and existing vegetation, and some of the stakes were marked by the attachment of blue and orange ribbons. The trial court found that the work activities of this subcontractor were visible from an inspection of the land. On March 5, 1973, further construction materials in the form of lumber for the construction of batter boards were delivered to the Fort Worth property by appellants’ own employees. Also on that date, appellants’ employees began the erection of batter boards. The erection of these items was completed by March 9, 1973. Batter boards are used to mark the corners of each building being erected, and on the Fort Worth property there were eight separate batter boards. As found by the court, the batter boards and the act of erecting the batter boards on the Forth Worth site were all visible from an inspection of the land. Also on March 5, 1973, appellants’ employees began to deliver truckloads of fill dirt to the Fort Worth property and also began excavation work on the site. As with the other activities described, the court found that the fill dirt delivered and the activities related thereto were visible from an inspection of the job site. On March 9,1973, a large sign painted on plywood was placed on the Fort Worth property carrying words to the effect that a new motel was being constructed for Dollar Inns.

IRVING PROJECT

The course of events on the Irving job site is essentially the same as that on the Fort Worth job site. Bundles of stakes were delivered to the Irving job site on January 25, 1973, and the survey work was begun. By March 1, 1973, approximately 150 wooden stakes had been placed at various locations on the Irving site marking grades, drives, building sites, and other locations. Again, the court found that these stakes and the related survey activities were visible from an inspection of the land. On March 5, 1973, a sign similar to the one erected on the Fort Worth property was erected on the Irving property. The trial court found that this sign was visible from an inspection of the land. On March 25, 1973 lumber for batter boards was delivered and their construction was begun. The batter boards were finished by April 2, 1973. The court found that the work done, as well as the completed batter boards themselves, were visible on an inspection of the land. On April 7, 1973, other materials in the form of sections of concrete pipe were delivered to the Irving property.

The two motels in question were subsequently completed in 1973, and appellants duly perfected their mechanic’s liens on both properties. In 1974 Dollar Inns failed to pay the balance remaining on its contract with appellants and appellants filed suit against Dollar Inns and K. R. Riley, seeking judgment and foreclosure of its mechanic’s liens on both properties.

As mentioned earlier, Dollar Inns defaulted on its deeds of trust after appellants filed suit. By that time Palomar had assigned its interests to appellee to provide permanent financing, receiving $2,757,-150.00 as the consideration for the assignment. Appellee foreclosed its deed of trust liens on both properties together with the motels located thereon and purchased same at its own foreclosure sales, paying $600,-000.00 for the Fort Worth property and $1,200,000.00 for the Irving property.

The facts relating to the creation of ap-pellee’s deeds of trust are as follows:

FORT WORTH PROPERTY

Title to the Fort Worth property was held by J. M. Loffland, Trustee, prior to its conveyance to Dollar Inns. On December 11, 1972, Dollar Inns (acting through K. R. Riley) and Loffland entered into a contract of sale covering the property in Fort Worth. The purchase price was $135,000.00 and Dollar Inns paid $10,000.00 in earnest money to be applied toward the total price at closing.

The transaction was closed on March 8, 1973. At that time, the Fort Worth property was free and clear from any liens. Palomar through a title company paid $598,-352.45 to Dollar Inns, of which amount $135,000.00 was purchase money for Dollar Inns’ acquisition of title to the Fort Worth property. In return Dollar Inns delivered its promissory note and deed of trust to the Fort Worth property, the note being in the amount of $1,200,000.00. The record does not indicate when, if ever, Dollar Inns received the balance of the loan (the amount of the note less the $598,352.45 paid by Palomar on March 8, 1973). It is proper to mention here that the price of the Irving property ($309,900.00) was also paid out of the $598,352.45. The loan proceeds less the purchase money were to be used toward construction of the motel.

The deed of trust covering the Fort Worth property was filed and recorded on March 9, 1973.

IRVING PROJECT

Title to the Irving property was held by the First Madison Corporation prior to its conveyance to Dollar Inns. On January 18, 1973, Dollar Inns and First Madison Corporation entered into a contract of sale covering the Irving property. The total purchase price was $309,900.00 of which $200,-000.00 was paid by Dollar Inns as earnest money on January 18, 1973. The Irving transaction was closed on April 5,1973. At the time of closing, the Irving property was subject to a prior mortgage lien held by the First Bank and Trust of Richardson, which lien was released by said bank on April 5, 1973. The parties stipulated in relation to this prior mortgage lien that “no assignment or other transfer of any existing lien was made upon purchase of the Irving Property by Dollar Inns of America, Inc.” The trial court held, however, that appellees were equitably subrogated to the lien rights of the Richardson bank.

As previously mentioned, Palomar paid Dollar Inns the $309,900 out of the balance of the $598,352.45 remaining after the Fort Worth transaction was closed. Of the $309,900, the amount of $109,900.00 was paid to First Madison Corporation as the balance of the purchase price, and $200,-000.00 was paid to Dollar Inns as a refund of the funds previously paid by it as earnest money on the Irving property contract of sale.

In return, Dollar Inns delivered its promissory note and deed of trust to the Irving property, the note being in the amount of $1,665,000.00. The record does not indicate when, if ever, Dollar Inns received the balance of the loan proceeds which were to be used toward construction of the motel.

The deed of trust covering the Irving property was filed on April 12 and recorded on April 13, 1973.

The foregoing is a summary of the various events, activities and dates that are relevant to the issues in this case. The following chronological summary presentation of the most pertinent events is presented as to both the Fort Worth and Irving job sites:

FORT WORTH
December 11, 1972 Dollar Inns contracts to purchase Fort Worth property
December 29, 1972 Appellants and Dollar Inns enter into preliminary construction agreement
Early January, 1973 Rone Engineering conducts on-site subsurface soil Investigation
January 25, 1973 a. Delivery of bundles of wooden engineering stakes to site
b. Topographical survey work begins on site
February 16, 1973 Dollar Inns and Palomar execute loan agreement
February 21,1973 Appellants and Dollar Inns execute final construction agreement
March 1, 1973 Approximately 150 engineering stakes have been placed at various points on job site
March 5, 1973 a. Delivery of lumber to job site
b. Appellants' employees begin erection of batter boards on job site
c. Appellants begin delivery of fill dirt to job site and begin excavation work
March 8, 1973 a. Dollar Inns completes purchase of Fort Worth property and delivers deed of trust to Palomar
b. Palomar loans Dollar Inns $135,000.00
March 9, 1973 a. Palomar records deed of trust on Fort Worth property
b. Erection of batter boards completed on or before this date
c. Large sign denoting motel construction erected at job site
IRVING
December 29, 1972 Appellants and Dollar Inns enter Into preliminary construction agreement
January 18, 1973 Dollar Inns contracts to purchase Irving property
January 25, 1973 a. Delivery of bundles of wooden engineering stakes to site
February 16, 1973 Dollar Inns and Palomar execute loan agreement
February 21, 1973 Appellants and Dollar Inns execute final construction agreement
March 1, 1973 Approximately 150 engineering stakes have been placed at various points on job site
March 5, 1973 Large sign denoting motel construction erected at job site
March 26, 1973 a. Appellants deliver lumber to job site
b. Appellants' employees begin erection of batter boards on job site
April 2, 1973 Erection of batter boards completed
April 5, 1973 a. Appellants' subcontractors begin delivery of fill dirt to Irving site
b. Excavation and site clearing begins
c. Dollar Inns completes purchase of Irving property and delivers deed of trust to Palomar
April 12, 1973 Palomar's deed of trust Is filed with County Clerk
April 13, 1973 Palomar's deed of trust recorded In county records

There is no question in this case as to the validity of appellants’ mechanic’s liens on either of the properties involved. The main issue here is one of priority of liens.

The lien priority issue in this case hinges on the interpretation and effect of Article 5459, Tex.Rev.Civ.Stat.Ann. Section 1 of Art. 5459 reads in part as follows:

“The [mechanic’s and material man’s] lien herein provided for shall attach to the . . . building, improvements . for which they were furnished or the work was done, in preference to any prior lien or encumbrance or mortgage upon the land upon which the . buildings or improvements have been put, or labor performed, and the person enforcing the same may have such . . . building or improvement . sold separately; provided, any lien, encumbrance or mortgage on the land or improvement at the time of the inception of the lien herein provided for shall not be affected thereby, and holders of such liens need not be made parties in suits to foreclose liens herein provided for.”

Article 5452 establishes four basic criteria by which the inception date of any mechanic’s lien may be determined, which are:

(1) The commencement of construction of improvements so long as such construction is actually visible from inspection of the land; or

(2) The delivery of materials to the land upon which improvements are to be located for use thereon provided such material is actually visible from an inspection of the land; or

(3) The recording in the mechanic’s lien records of the county in which the land is located of the written agreement for the construction of the improvements; or

(4) The recording in the mechanic’s lien records of the county in which the land is located of an affidavit stating that the lien claimant has entered into an agreement with the owner of such property or with the owner’s contractor or subcontractor for the construction of improvements thereon.

The latter two criteria are not in issue here since appellants did not record the written construction agreement nor any agreement affidavit. Under the first and second criteria, this court must determine whether the work done and materials delivered by appellants prior to the fixing of appellee’s deed of trust liens on the properties constituted “commencement of construction” and “delivery of material” as those terms are used in art. 5459, thereby establishing an effective inception date of appellants’ mechanic’s liens before the inception of appellee’s deed of trust liens.

Appellants contend that the work done prior to the effective date of appellee’s liens did constitute commencement of construction, and that the materials delivered in that same time frame did constitute “delivery of materials” as that term is used in Art. 5459. The trial court concluded, and appellee so asserts, that as a matter of law the work done did not constitute commencement of construction nor was there “delivery of material” as those terms are used in the statute. We disagree.

We have been unable to locate any Texas case setting forth a clear standard as to what constitutes “commencement of construction” or “material.” We feel that any consideration of this matter is best left to an analysis of the facts in each particular case, for the following reason. Art. 5459 provides that such commencement of construction or delivery of material must be “actually visible from inspection of the land upon which the improvements are being made.” Thus, we feel that the chief inquiry to be made by the courts is whether there was visibility of commencement of construction such that a person, upon inspection of the land, would be put on notice that construction work had commenced or, because of material delivered and resting on the land, work was to commence shortly thereafter.

We have found only one Texas case dealing marginally with this issue, that of Justice Mort. Inv. v. C. B. Thompson Const. Co., 533 S.W.2d 939 (Tex.Civ.App.—Amarillo 1976, ref’d n. r. e.). The Amarillo Court of Civil Appeals relied on 1 A.L.R.3d 822, as does appellee in this case, in following a majority of states that have had the opportunity to judicially delineate a standard for “commencement of construction.” Those states have generally held that the work done must amount to commencement of construction of a component part of the structure being built.

1 A.L.R.3d 824, 825 states:

“The cases apparently illustrate that the courts have not been bound by any strict rule of law in determining whether the work done on the premises is sufficient to amount to the commencement of the building within the meaning of the mechanic’s lien law, but have examined all the circumstances in the case to make sure that they are satisfied that it is apparent from the work done that the construction of a building is underway.”

We feel, and the trial court so found, that the work done on both properties in this case in the time prior to the inception of appellee’s deed of trust liens was visible, and that in light of the facts the work did constitute commencement of construction of a character sufficient to establish an inception date for appellants’ mechanic’s liens prior to the inception of appellee’s liens.

The meaning of “materials” concerning delivery thereof may best be found in the definition of materials under art. 5452, section 2(b), Tex.Rev.Civ.Stat.Ann., which states that material is “to be construed to mean any part or all of the following: (1) material, machinery, fixtures or tools incorporated in the work, or consumed in the direct prosecution of the work, or ordered and delivered for such incorporation or such consumption.” This article in section 2(d) defines work as “any construction or repair, or any part thereof, which is performed pursuant to an original contract . We hold that stakes, iron rods, concrete pipe and lumber for batter boards does constitute material as that term is defined, and as such further establishes that appellants’ liens had their inception prior to the inception of appellee’s liens. This interpretation comports with the general rule in Texas that the mechanic’s lien statutes are to be liberally construed for the purpose of protecting laborers and materi-almen. Hayek v. Western Steel Co., 478 S.W.2d 786 (Tex.1972). Appellants’ points of error, 3, 4 and 5 are sustained.

The above issues decided, we now consider appellants’ points of error 1 and 2 wherein appellants allege that the trial court erred in concluding that any vendor’s or purchase money lien on the Irving property was prior and superior to appellants’ mechanic’s liens regardless of the inception of appellants’ mechanic’s liens. Appellants contend that their mechanic’s liens are, as a matter of law, prior and superior to any purchase money mortgage or vendor’s lien on the Irving property, and that the trial court’s conclusion contravenes Article 5459 quoted above.

The result of our ruling under appellants’ points of error 3, 4 and 5 is to hold that appellants’ mechanic’s liens had their inception prior to the time that Dollar Inns was deeded both properties, and thus existed prior to the time that appellee’s deed of trust liens were created. Appellants contend that a literal interpretation of Art. 5459 provides that regardless of the type of lien created after the inception of their mechanic’s liens, said mechanic’s liens are superior and have priority over any type of lien created after the inception date of the mechanic’s liens and are not cut off by foreclosure and sale of any subsequent lien. Appellants urge these points in its points of error 1, 2, and 6.

Appellee contends that purchase money mortgage liens and/or vendor’s liens are superior to any mechanic’s lien regardless of the inception date of the latter.

Confusion exists due to the apparent conflict between Art. 5459 and the Supreme Court case of Irving Lumber Co. v. Alltex Mort. Co., 468 S.W.2d 341 (Tex.1971) in which Justice McGee wrote a dissenting opinion joined by Justices Denton and Daniel. Even though Art. 5459 has been amended since rendition of the Irving case, the basic priority provisions of Art. 5459 were not changed. The Irving case is the most convincing authority in support of ap-pellee’s argument that a purchase money lien has priority over a mechanic’s lien regardless of the inception date of the latter. In that case the mechanic’s lien holder relied on its oral construction agreement to establish the inception date of its mechanic’s lien prior to the time that the borrower-developer acquired title to the property on which the improvements were made. Contemporaneously with his acquiring title, the borrower-developer conveyed the property through deed of trust to secure the loan made by Alltex Mortgage Company. All-tex later foreclosed before the mechanic’s lien holder foreclosed. The Supreme Court held that the mechanic’s lien was cut off for the reason that Alltex’s deed of trust lien was a purchase-money lien, and that even though it was created subsequent to the inception date of the mechanic’s lien, it was entitled to priority. Alltex loaned a total of $137,850 of which $10,600 was used as actual purchase money. Whether the mechanic’s lien holder was entitled to pursue a portion of the proceeds of the foreclosure sale in the hands of Alltex was not raised in the case.

The Supreme Court based its decision on the rule of law in Texas that a lien is impressed with the character of the indebtedness for which it was given to secure, citing National Western Life Ins. Co. v. Acreman, 415 S.W.2d 265 (Tex.Civ.App.—Beaumont 1967, modified 425 S.W.2d 815). Since part of the loan proceeds in the Irving case was purchase money, the entire lien was given purchase money status and thus priority to the extent that foreclosure cut off the mechanic’s lien. The court’s opinion further provided that a mechanic’s lien could not antedate ownership of the property, and that where a purchase money deed of trust was executed contemporaneously with the vesting of title in the mortgagor, then the purchase money deed of trust lien would have priority over a mechanic’s lien since the title of the mortgagor was burdened instantly with the purchase money deed of trust lien before the mechanic’s lien attached to the mortgagor’s title.

Although an express vendor’s lien was reserved only on the Irving property in this case, the courts in the National Western Life Ins. Co. case, supra, and the Irving Lumber Co. case, supra, and other cases apparently make no distinction between an express vendor’s lien and a purchase-money mortgage deed of trust lien. The obvious distinction that exists is that in a vendor’s lien situation, the vendor retains a security interest securing the purchase money debt, whereas under the modern purchase-money mortgage deed of trust situation, a lending company loans the purchase money to a vendee who conveys the property in trust to secure the repayment of the purchase money. The vendor is out of the picture so to speak, but the lending agency retains the paramount rights of the vendor. This is in accord with the previously stated rule that a lien is impressed with the character of the debt it is given to secure, and if given to secure purchase money, it has the status of a purchase-money lien. Thompson v. Litwood Oil & Supply Co., 287 S.W. 279 (Tex.Civ.App.—Waco 1926, no writ); C. D. Shamburger Lumber Co. v. Holbert, 34 S.W.2d 614 (Tex.Civ.App.—Amarillo 1931, no writ); National Western Lite Ins. Co., supra; Irving Lumber Co., supra.

We are bound by the majority opinion in Irving Lumber Co. and feel that its effect is controlling here. Under the Supreme Court’s ruling we are obligated to decide lien priorities in similar cases accordingly, regardless of its apparent conflict with Art. 5459, Tex.Rev.Civ.Stat.Ann. Therefore, appellants’ points of error 1, 2, and 6 are overruled.

Appellants next contend that the court erred in concluding that the inception dates of the Dollar Inns to Palomar deeds of trust were, as to appellants, effective on the actual dates of closing, and further erred in concluding that appellants were placed on inquiry notice of the actual dates of said closings. Although in light of our holding above, this point is not determinative of this case, it is a basic principle of Texas law that the inception, creation and attachment of mechanic’s liens are matters of law and statute and have nothing to do with notice of other liens or instruments arising subsequent to the inception date of a mechanic’s lien. See Art. 5452, et seq., Tex.Rev.Civ.Stat.Ann. Furthermore, “Every . . . deed of trust or mortgage . when delivered to the clerk of the proper court to be recorded shall take effect and be valid . . . as to all creditors from the time when such instrument shall have been so acknowledged, proved or certified and delivered to such clerk to be recorded, and from that time only.” Art. 6631, Tex.Rev.Civ.Stat.Ann. Accordingly, the trial court erroneously concluded that appellants were placed on inquiry notice of the actual dates of closing and that appel-lee’s liens were effective as to appellants from said dates of closing.

Appellants also allege that the court erred in concluding that appellee is equitably subrogated to the lien rights previously held by First Bank and Trust of Richardson on the Irving property. At the time of closing, the Irving property was subject to a prior vendor’s lien held by the First Bank and Trust of Richardson. This prior lien was fully released and Palomar did not take by written assignment any interest in the prior lien. Nevertheless, appellants’ point of error is overruled. The doctrine of subrogation is given a liberal interpretation to protect parties who are not mere volunteers. McBroome-Bennett Plumbing, Inc. v. Villa France, Inc., 515 S.W.2d 32, 36 (Tex.Civ.App.—Dallas 1974, ref’d n. r. e.). It has long been the law of this state that one who has advanced money with an understanding or under circumstances giving rise to an understanding that his advancement shall be secured by a first lien upon the property is not a mere volunteer and should be subrogated to the prior liens so discharged. Whiteselle v. Texas Loan Agency, 27 S.W. 309 (Tex.Civ.App.—1894, writ ref’d); Sanger Bros. v. Ely & Walker Dry Goods Co., 207 S.W. 348 (Tex.Civ.App.—Fort Worth 1918, writ ref’d); Lewis v. Investors Sav. Ass’n, 411 S.W.2d 794 (Tex.Civ.App.—Fort Worth 1967, no writ). Accordingly, appellee through its assignment from Palomar is equitably subro-gated to the vendor’s lien rights of the Richardson bank.

Appellants’ last 6 points of error shall be dealt with collectively. Appellants allege therein that there was no evidence to support the court’s finding that Palomar advanced to Dollar Inns the sums of $1,220,-000 and $1,665,000 on the Fort Worth and Irving properties respectively and for the further reason that the evidence establishes that Palomar loaned only the sum of $135,-000.00 to Dollar Inns on the Fort Worth property and $309,900.00 on the Irving property, and that the court erred in concluding that appellee had superior deeds of trust liens on the Fort Worth property to the extent of $1,220,000.00 and on the Irving property to the extent of $1,665,000.00. Appellants’ last point of error alleges that the court erred in failing and refusing to award appellants judgment and money damages against appellee in the total amount of $204,776.29 against and based upon the consideration received by appellee at foreclosure on both properties in excess of any purchase money loaned on and secured by said properties.

The record is replete with evidence to indicate the exact amounts loaned by Palomar to Dollar Inns. Although the record reveals that as to actual transfer of funds only checks representing purchase money were delivered to Dollar Inns, the record contains loan agreements, promissory notes and deeds of trust securing same. All were executed by Dollar Inns. These instruments, together with the fact that the motels were completed, gives us no hesitancy in finding, as the trial court did, that Palomar at the closings advanced the purchase money and, according to the loan agreements, made periodic advancements of the entire loan proceeds as the construction of the motels progressed and was completed stage by stage. We hold that the court’s findings are supported by evidence in the record, evidence which was stipulated to by both parties.

However, the court erred in concluding that appellee had superior deeds of trust liens to the extent of the entire loan amounts, and furthermore erred in refusing appellants’ pleading that it was entitled to satisfy its liens against the consideration received by appellee in excess of the actual purchase money loaned on the properties.

Appellee held deed of trust liens that were superior to appellants’ mechanic’s liens only to the extent of purchase money loaned on the properties. To so hold does not conflict with the opinion of the Supreme Court of Texas in Irving, supra. The Irving ease did hold that mechanic’s and materialman’s liens were cut off by foreclosure of a superior purchase money mortgage. The Supreme Court immediately thereafter stated:

“Whether Irving was then entitled to pursue a portion of the proceeds of the sale in the hands of Alltex is not raised in this case, because the only issue [here] is whether Irving was entitled to foreclose its lien on the land following the foreclosure under the deed of trust.”

Although appellants’ mechanic’s liens were cut off by appellee’s foreclosure, they are entitled to have their liens satisfied out of the consideration received by appellee in excess of the purchase money loaned by appellee’s assignor, Palomar.

A similar situation existed in Habitat, Inc. v. McKanna, 523 S.W.2d 787 (Tex.Civ.App.—Eastland 1974, no writ). In that case the mortgagee held a $450,000 deed of trust lien against property upon which a contractor held a mechanic’s and material-man’s lien. Of the total amount of $450,000 which the deed of trust lien secured, only $64,000 was purchase money expended by the owner in acquiring the property. The Eastland Court of Civil Appeals held:

“The trial court held, however, that only that portion of the $450,000 deed of trust representing the prior purchase money lien was superior to plaintiff’s [mechanic’s and materialman’s] lien since the deed of trust was recorded subsequent to Plaintiff’s visible commencement of work. Even though the foreclosure extinguished plaintiff’s lien, he is, we think, nevertheless entitled to recover money damages from the mortgagee if at such time the mortgagee received consideration in excess of the $64,000 purchase money lien.”

The trial court found in this case that of the total loaned on the Fort Worth property, $135,000 was paid as the purchase price of the land and of the total loaned on the Irving property, $309,900 was paid as the purchase price of the land. The consideration received by appellee at the foreclosure sale of the two properties was $600,000 for the Fort Worth property and $1,200,000 for the Irving property. The total amount of consideration received by appellee in excess of purchase money loaned on the two properties respectively is $1,355,100.00. We hold that appellants are entitled to recover money damages against appellee in the amount of their mechanic’s liens.

When Palomar assigned its interests to appellee, the appellee paid $2,757,150.00 for Palomar’s lien rights. Palomar’s lien rights were superior to appellants’ lien rights only to the extent that the deed of trust liens secured purchase money. Thus, the appel-lee’s lien rights, as the assignee of Palomar, were likewise limited in superiority over appellants’ mechanic’s and materialman’s liens. To hold otherwise would make Art. 5459, Tex.Rev.Civ.Stat.Ann., a meager vehicle for protecting the legislative and constitutionally mandated rights of mechanic’s and materialman’s lien holders.

Appellee can hardly contend that it was an innocent purchaser for value without notice of any prior existing liens, and did not urge such contention on appeal. Appellee, as mentioned earlier, was involved in the entire transaction at least from the early loan agreements. At the time that appellee was assigned Palomar’s interests, the mechanic’s liens of appellants had been perfected. Further, appellee purchased the properties at its own foreclosure sale.

That portion of the judgment of the trial court wherein appellants take nothing against Diversified Mortgage Investors is reversed; judgment is here rendered that appellants recover $204,776.29 from Diversified Mortgage Investors, which judgment shall be joint and several with the final judgment of the trial court against Dollar Inns of America, Inc. and K. R. Riley, individually.

Reversed and rendered.

SUPPLEMENTAL OPINION

In response to appellee Diversified Mortgage Investors’ second motion for rehearing filed on March 3, 1977, the supplemental opinion heretofore delivered and the amended judgment entered on February 24, 1977, is withdrawn. This supplemental opinion is substituted for the original supplemental opinion.

It has been called to our attention that in our supplemental opinion delivered February 24, 1977, we applied an erroneous rate of interest on the $204,776.29 judgment rendered in favor of Lloyd D. Blaylock General Contractor, Inc. and Lloyd D. Blaylock Individually against Diversified Mortgage Investors. We hereby amend the original judgment dated January 27, 1977, to expressly provide that interest on the $204,-776.29 in favor of Lloyd D. Blaylock General Contractor, Inc. and Lloyd D. Blaylock Individually against Diversified Mortgage Investors shall accrue at the rate of 9% per annum from January 15, 1976, which judgment shall be joint and several with the final judgment of the trial court against Dollar Inns of America, Inc. and K. R. Riley, individually. Rule 434, T.R.C.P.; American Paper Stock Company v. Howard, 528 S.W.2d 576 (Tex.1975); Art. 5069-1.05, Tex.Rev.Civ.Stat.Ann.

In this respect the motion is granted and in all other respects overruled.