author: W. C. DAVIS, Judge.

text:
    William Louis BONDS, Appellant, v. The STATE of Texas, Appellee.
    No. 56368.
    Court of Criminal Appeals of Texas, Panel 1.
    Nov. 1, 1978.
    Rehearing En Banc Denied Dec. 6, 1978.

      Phil Burleson, Arch C. McColl, Dallas, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Ned B. Morris, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

A jury convicted the appellant of murder and assessed punishment at fifty years’ imprisonment in the Texas Department of Corrections. We reverse and order a judgment of acquittal be entered in this cause.

The State relies upon circumstantial evidence. The appellant urges nine grounds of error, two concerning the sufficiency of the evidence, and four attacking the chain of custody of various State’s exhibits. Because of their interrelationship with the challenge of the sufficiency of the evidence, we will discuss these grounds of error together.

The deceased, Marcus Ray Wilson, was a patient in Houston International Hospital, a psychiatric hospital which also treated drug abusers. He was discovered murdered in his bed in the hospital at 4:45 p. m. on April 26, 1976, by Ray Jarmin, a psychological technician. The deceased’s face was “badly bloody” and there was a (porcelain) soap dish with a towel around the handle hanging in a pool of blood next to him. A ball point pen was found nearby. Dr. Ethal Ericson, an assistant medical examiner for Harris County, performed an autopsy on the deceased the next day. In her opinion, the cause of death was “a skull fracture with lacerations, contusions, and hemorrhages of the brain.” There were several superficial puncture wounds and a fresh scratch three-quarters of an inch long on the back of his left wrist. The appellant was the deceased’s roommate in a three-bed room. The third bed was unoccupied and the soap dish in the shower of the deceased’s room 328 was missing. The soap dish had been pulled from the showerstall wall. The appellant had been seen by Jar-min at approximately 4:25 p. m., lying in his bed, facing the wall, but Jarmin could not tell whether Bonds was actually sleeping.

Within thirty minutes of the discovery of the murder, the appellant, according to Jar-min, was sitting next to patient Gary Wayne Adams, in the day room, and, while “. . . most of them (patients) appeared somewhat tense, to a small degree, they were trying, more or less, to find out from the staff what was going on . the appellant remained on the couch facing the window with an expression that . was plain, he was just sitting therg, no expression, just sitting there staring, I guess.” The appellant was never placed in the company of the deceased between 4:15 p. m. and 4:45 p. m. by either Jarmin or another psychological technician who had seen Bonds in the room at 4:15 p. m. Jar-min noticed traces of blood on the appellant’s left forearm. He couldn’t tell if the blood was fresh, but “there were maybe three of four of them, two or three inches long,” and blood spots, apparently about the size of a half-dollar on appellant’s jeans. Jarmin directed a Mr. Randall and a Ms. Nixon to take Bonds to the fourth floor. All the patients were herded into the common area, day room, and the entire third floor area checked twice for bloody articles. Nothing was found. None of the other patients had any blood on them. Jarmin testified that they had searched “very carefully,” “behind and under the beds, pulled beds from the wall, lifted mattresses and looked under them.” Patrol officers Bell and Rogers arrived after the appellant had been taken to the fourth floor. They stayed there “some time” and made their own investigation. “Later,” bloody bedding was found in the empty bed of the deceased’s room. Jarmin said that although “[i]t wasn’t readily visible, it was easily found.” He was not clear as to when the bloody bedding was found, but “probably after the uniformed officers left . the bloody blanket could have been placed there by someone after Bonds had been carried upstairs.” Later, on re-cross, Jar-min testified that although he still couldn’t recall if the “blanket was found after Rogers and his partner had made the investigation or before ... it could have been subsequent to that time and sometime after Bonds had been removed from the floor.”

According to Helen Jean Smith, the appellant was taken to the fourth floor by the head nurse and psychtech Abasolo. There she helped undress him and gave his clothes to officers Bell and Rogers. Significantly, Bell said that they left the hospital that night with only the soap dish and the ball point pen.

Frank Navarro, Jr., a patient next door to the patient’s room, appeared tense at times. In contrast, the appellant was “quiet,” “cooperative,” “never seemed tense about anything ... in other words, the whole time he was there, he was quiet, as far as the time he was on your floor,” according to Jarmin.

Jarmin could not account for the disappearance of bloody towels wrapped around the deceased’s head or the towel around the soap dish. He had not noticed writing on the wall over the deceased’s bed until someone called it to his attention “later.” (State’s Exhibit # 24 purports to be a “poor photograph of the writing.” Our copy is indecipherable.) Jarmin stated that there were two attendants on the third floor, but the nurses would come and go. There was a chart as to each patient’s whereabouts, but Jarmin did not “know where all of them (patients) was (sic) the whole shift.” The third floor was segregated by sex with a common day room where all could watch television and listen to music. It was possible for them to “wander” to the other side, but if this happened an attendant would guide them back to the other side. The patients’ rooms were not locked. Two lock-up rooms for troublesome patients were full that day.

Ms. Nixon, the shift head nurse, stated that the ward “census” which did not include the lock-up rooms was 16 patients, of which more were males than females. Some two hours after Bell and Rogers left, a housekeeper, whose name she could not recall, brought her the bloody bed linen (blanket and sheet) purported to have been found in the vacant bed in the deceased’s room. Also, she received the apparently bloody pants which she had been told, but had no personal knowledge of, belonged to the appellant.

Wilbur Randall, another psychological technician, noticed some “slight marks of blood,” approximately an inch or an inch and a half, on the appellant’s arm. Randall said that Navarro appeared highly nervous after the deceased’s body had been found. At approximately 4:15 p. m., Navarro had asked him for a change of clothing, but that “He was in his hospital uniform, and it was standard procedure for them to want to get back into their street clothes after 24 hours.” Randall noticed no blood on Navarro.

Detective Tucker arrived at the hospital at 9:30 p. m. The deceased’s room had been cleaned. He interviewed the appellant on the fourth floor and noticed blood on his bluejeans. At approximately 11:00 p. m., Ms. Nixon gave him the jeans. He also received a sheet, towels, and a blanket which he placed in the homicide lock closet to be submitted to the crime lab. He did not know who had recovered the sheet, towels, or blanket that were given to him or where they came from. He saw no cuts, scratches, abrasions or any fresh wounds on the appellant.

Detective Carpenter became involved in the investigation at approximately 8:00 a. m. the next day. He, too, examined the appellant and found no wounds. He received a vial purported to be the deceased’s blood from a Mr. Hobbs at the morgue and delivered it to Mr. Zotter, the Houston police department chemist/toxicologist. Carpenter did not know of his own personal knowledge where Hobbs got the blood. Hobbs never testified. Carpenter arrested the appellant on April 30,1976, at the hospital.

Detective Dunovan was also assigned to the case on April 27. He examined patient Navarro and found, in his opinion, some “shaving nicks” on his upper face and chin. This is on a ward where an electric razor was furnished for the patient’s protection. Although it was not unusual for patients to use a razor with supervision, there is no testimony that Navarro had one. Detective Dunovan received some towels from a Nurse Reynolds with approximately 10-15 dime-sized blood stains. He did not know where or when she had obtained the towels. They were placed in the homicide lock closet. Nurse Reynolds did not testify.

A Mr. LaBlanc, a Houston police department latent fingerprint examiner, stated that he arrived at approximately 11:30 p. m. on April 26 and could only obtain prints from the window. They did not match the deceased’s. He did not attempt to compare them with anybody else’s, not even the appellant’s. No prints were found on the soap dish or the ball point pen.

Detective Baker took the physical evidence from homicide to Mr. Zotter in the crime lab. Zotter testified that although the soap dish appeared to have blood on it he did not analyze it. The parties stipulated, “That the blood found in the bed around the deceased, Marcus Wilson, was type B blood.” According to Zotter, type B blood was found in 8V2% of all Caucasians and 17% of all blacks. The stains on the appellant’s bluejeans and shirt were determined to be of type B blood, but Zotter had no personal knowledge whether they were in the same condition when he analyzed them as when taken from the appellant. He had “just received them from Detective Baker.” (The stains, when Zotter analyzed them, appeared to be “dollar-size.”)

Zotter related that a heavy synthetic black fiber(s) was taken from one of the bloody sheets submitted to him. It did not match any fibers from the appellant’s clothing, nor was a comparison made of the deceased’s clothes. The fiber(s) was “just unmatched.”

The vial of blood received from Detective Carpenter and purported to be from the body of the deceased was also type B. Again, Zotter had no personal knowledge of who took the vial from what body or from whom Carpenter got the vial. The blood stains on the towels which Nurse Reynolds had given to Detective Dunovan were analyzed to be type 0 blood. 44% of the population has type 0 blood. Navarro never testified. Ms. Nixon was recalled by the State. She related that it was not the hospital practice to get the patients’ blood types. She stated that she had seen a small amount of blood on the garments; that the garments had been given to her after the incident; she couldn’t recall by whom and she had no personal knowledge from whom they were taken. The garments were never shown to her at trial for comparison.

Marvin Thomas, a psychiatric technician at the hospital, testified that approximately 3 or 4 days before the homicide occurred the appellant had been transferred from the second floor to the admissions floor.

The appellant was observed in his room, which he shared with the deceased, 20 minutes before the murder was discovered. The room was equally accessible to at least 14 other patients, as well as numerous staff personnel. Some 30 minutes after the discovery of the offense, the expressionless appellant was observed calmly sitting in the day room peering out the window. Blood of undetermined type and origin was streaked on his forearm. Whether there was blood on the appellant’s pants, shirt, or both, and in what amounts varied according to the witnesses. One witness said she took appellant’s clothes and gave them to a police officer. That police officer testified that he received the soap dish and the ball point pen only. A detective, who arrived after the officers left, stated that the appellant was still in his bluejeans and the detective was later given the clothes by a nurse who had no knowledge of their origin. A chemist/toxicologist did not know, and for that matter, no one else could ever tell, if the clothes he examined were the appellant’s, nor, of course, if they were in the same condition when analyzed as when “taken” from the appellant. Leaving momentarily the clothing chain of custody problem, a vial of blood allegedly taken from the deceased is “matched” with the blood stains on the clothing. The stipulation admitted by the parties does not tell us deceased’s blood type. In essence, the State “links” the appellant with the deceased with bloody garments of questionable origin and purity to a blood sample of unknown origin.

Additionally, towels of, again, unknown origin with type 0 blood stains are admitted apparently to exclude a patient who, it is apparently contended, has cut himself while shaving with, in all probability, an electric razor. The State’s case is further discredited by the disappearance of bloody towels wrapped around the deceased’s head and the “later” discovery of bloody bed linen and handwriting on the wall in the deceased's/appellant's room.

The failure of the State to analyze the blood on the soap dish, failure to compare fingerprints found on the window, failure to analyze the handwriting on the wall, and failure to match the fiber(s) on the bloody sheet do not strengthen this tenuous circumstantial case.

Critically, the evidence, even when considered in a light most favorable to the verdict, would seem to be simply blood on the appellant’s forearm. We cannot write appellant’s guilt on a “blank,” “expressionless” face. Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976). In C. McCormick’s Handbook on the Law of Evidence, Sec. 212 at 527 (2nd Ed. 1972), it is stated:

“It will be readily apparent that where real evidence is offered an adequate foundation for admission will require testimony first that the object offered is the object which was involved in the incident, and further, that the condition of the object is substantially unchanged.
* * * * * *
“On the other hand, if the offered evidence is of such a nature as to be susceptible to alteration by tampering or contamination, sound exercise of the trial court’s discretion may require a more elaborate foundation. A foundation of the latter sort will commonly entail testi-monially tracing the ‘chain of custody’ of the item with sufficient completeness to render it improbable that the original has either been exchanged with another or been contaminated or tampered with.”

It is unnecessary to dwell on the lack of chain of custody of appellant’s garments, for the comparative “link,” the vial of type B blood, was never, except for a hearsay assertion, linked to the deceased. Hearsay, of course, is without probative value. Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); Perkins v. Springstrun, 557 S.W.2d 343 (Tex.Civ.App.—Austin, 1977, writ refused, n.r.e.).

Every circumstantial evidence case must necessarily be tested by its own facts to determine the sufficiency of the evidence to support the conviction. A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused and proof amounting to only a strong suspicion or mere probability is insufficient. It is not necessary, however, that every fact point directly and independently to the guilt of the accused, and the cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977); Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977); Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978).

This Court has a duty of insuring that no one is convicted of a crime except upon proof beyond a reasonable doubt and, in a circumstantial evidence case, upon proof excluding all other hypotheses except appellant’s guilt. Easley v. State, 529 S.W.2d 522 (Tex.Cr.App.1975). The evidence is insufficient to sustain the conviction for murder.

Having found that reversal must result, as the evidence is insufficient, the Supreme Court’s decisions in Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), dictate that no further prosecution be had in this case.

The judgment is reversed and acquittal is ordered.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Howard Glenn COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 59421.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 8, 1978.
    Rehearing En Banc Denied Dec. 6, 1978.

      George B. Shepherd, Jr., Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, James G. Walker, and Michael R. Gillett, Asst. Dist. Attys., Dallas, for the State.

      Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. After the court accepted appellant’s plea of guilty, punishment was assessed at six years.

The record on appeal was approved by the trial judge on December 22, 1977. Art. 40.09(7), V.A.C.C.P. No extensions of time for filing appellant’s brief were granted (see Art. 40.09(16), V.A.C.C.P.), so it was due on January 21, 1978. Art. 40.09(9), V.A.C.C.P. The brief had not been filed by then. The record, however, does contain an affidavit by appellant executed on July 17, 1978, stating that his first retained attorney on appeal neglected to file a brief for him even though he had been paid fees in the case, that he later discovered the first attorney’s neglect and hired another attorney, and that the trial court then allowed the second attorney until June 8, 1978, to file a brief. Appellant’s brief was filed on June 8.

The proper procedure would have been for appellant’s second retained counsel to have filed the affidavit with this Court, along with a motion for extension of time under Art. 40.09(16), supra, pursuant to Rule 15, Art. 44.33, V.A.C.C.P., and requesting a waiver of the time limit under that rule due to the special circumstances. Were the matter of abandonment by retained counsel on appeal raised by application for habeas corpus, the relief would be an out-of-time appeal. Ex parte Raley, Tex.Cr.App., 528 S.W.2d 257. Where facts supporting such relief are shown in the midst of the appellate process, there is no reason why the most effective remedy, i. e., extension of time for a brief by subsequent counsel, should not be granted. Accordingly, finding the affidavit in the record sufficient to support extension of time for filing a brief, we will consider appellant’s brief on the merits.

Appellant first contends the indictment is fundamentally defective for failure to allege the deadly weapon any more specifically than as a knife. There was no motion to quash. Cf. Drumm v. State, 560 S.W.2d 944. The case cited in appellant’s brief for the proposition that a knife is not a deadly weapon per se, Harris v. State, 562 S.W.2d 436, speaks to the matter of proof, not of pleading. Absent an adequate motion to quash, the indictment is sufficient. The ground of error is overruled.

It is next submitted that the evidence is insufficient to support appellant’s guilty plea. Art. 1.15, V.A.C.C.P. Appellant argues that the judicial confession only refers to the knife as a deadly weapon, with no admission regarding its use or intended use.

The State points out that the written judicial confession admitted to support appellant’s plea contained an impossible date. That instrument recites that the offense was committed on June 24, 1977, whereas the indictment was returned on January 27, 1977. It is true that this written judicial confession cannot support the guilty plea. When appellant took the stand and testified, however, he stated that he was pleading guilty just as he was charged in the indictment, and that he was saying he was guilty regardless of what punishment the court would assess. We consider this was a sufficient judicial confession to support the plea under Art. 1.15, supra. Cf. Potts v. State, Tex.Cr.App., 571 S.W.2d 180, and authorities cited there.

Finally, appellant argues the sentence was prematurely pronounced because the time allowed for a motion for new trial was not waived by written instrument. The transcribed court reporter’s notes reflect an effective waiver in open court. This is sufficient. Cf. Middleton v. State, Tex.Cr.App., 537 S.W.2d 25. The ground of error is overruled.

The judgment is affirmed.

      . The trial court was without authority to grant an extension of time under Art. 40.09(16), supra. Although the trial court has a duty to compel appointed counsel to file a brief and represent his client, Yates v. State, Tex.Cr. App., 557 S.W.2d 115, and may consider a late brief and grant a new trial thereon, so long as it still has jurisdiction of the case, Yates, supra, even then when the record reaches this Court, it will make its own determination of whether to consider the brief. Yates, supra.

      . The indictment alleges:
      “. . did then and there by using and exhibiting a deadly weapon, to-wit: A KNIFE, . . .”


text:
    Eulalio GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 55117.
    Court of Criminal Appeals of Texas, Panel 2.
    Nov. 15, 1978.

      Charles L. Barrera, Alice, for appellant.
    William B. Mobley, Jr., Dist. Atty., Royce C. Johnston, Kingsville, J. Grant Jones, Corpus Christi, Asst. Dist. Attys., Jim D. Vol-lers, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for delivery of heroin wherein appellant received a sentence of seven years incarceration.

The sufficiency of the evidence is challenged.

Appellant and an undercover narcotics agent drove from Alice to Kingsville to seek a person known as El Gorrilon for the purpose of purchasing heroin. On arrival at Kingsville the two spotted an individual known to both of them as Tarta sitting in a parked car known to belong to El Gorrilon. They asked Tarta if he knew El Gorrilon’s whereabouts and he stated he did not. Tar-ta then drove around with appellant and the agent in a futile attempt to find El Gorrilon. They gave up the search and the original two dropped off Tarta and started to drive back to Alice. A few miles outside of Kingsville Tarta caught up with them and they pulled over. Tarta was accompanied by a person named Nava. Nava offered to sell heroin to the officer and he accepted. The evidence is in conflict as to exactly what transpired there on the side of the road, but the officer testified that Nava produced a sample and that appellant looked at it and said that he thought it was all right. The parties then drove back to Kingsville where the transaction was consummated. The agent gave Nava $850; and although appellant did not receive any of the proceeds of the sale, the agent testified that he demanded 3 grams of heroin from him for his part in the deal but was refused, and given $100 instead.

Section 4.03 of the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S., makes it unlawful for a person to knowingly and intentionally deliver a controlled substance listed in Penalty Group 2 of the Act which includes heroin. The Act defines delivery in Sec. 1.02(8) as the actual or constructive transfer from one person to another of a controlled substance.

V.T.C.A., Penal Code Sec. 7.01(a) makes a person criminally responsible for an offense as a party if the offense was committed by his own conduct or by the conduct of someone for which he is criminally responsible. V.T.C.A., Penal Code Sec. 7.02(a)(2) provides that a person is criminally responsible for an offense committed by the conduct of another if “acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.” In the instant case, “the other person” referred to in the statute is Nava. The jury was charged on this theory. Garza must have aided or encouraged Nava in carrying out this offense in order to be criminally responsible for Nava’s actions under Sec. 7.02(a)(2), supra.

There was sufficient evidence for the jury to find Garza criminally responsible for Nava’s action. The State presented evidence which showed Garza inspected the heroin sample that Nava presented to the agent and stated that he thought it was all right. This opinion aided the seller by encouraging the buyer to go through with the purchase and supports the jury’s verdict on the conduct element of Sec. 7.02(a)(2). His demand for 3 grams of heroin provides sufficient evidence to find that his intention was to promote or assist the commission of the offense. He thought he had earned reimbursement for setting up a heroin buy and this was sufficient evidence to support the jury’s verdict on the mental element of Sec. 7.02(a)(2). The first ground of error is overruled.

The State introduced an extraneous offense on the issue of intent. The undercover officer testified that before leaving for Kingsville he had bought a tin foil packet containing .11 grams of heroin from appellant. Appellant objected to the introduction of the heroin purchased in that offense because the State failed to prove a proper chain of custody.

The officer testified that he had purchased a tin foil packet of brown powder and placed it into a small envelope after putting identifying notations on the envelope. He turned the envelope in to the Department of Public Safety laboratory for analysis. On the stand he identified the packet and the envelope in which he had placed the packet. A Department of Public Safety chemist identified the same envelope as the one that contained the packet with the brown powder he had tested and had found to be heroin. The envelope was kept at all times after receipt by the laboratory in a vault with access limited to Department of Public Safety laboratory personnel. Appellant made no showing of a gap in custody. His contention is without merit. See, Howery v. State, Tex.Cr.App., 528 S.W.2d 230; Weeks v. State, Tex.Cr.App., 476 S.W.2d 310.

Appellant also contends the trial court erred in not allowing appellant to introduce testimony by a special investigator for the Jim Wells District Attorney’s office to the effect that the Department of Public Safety had not filed a complaint about the extraneous offense. His position, then and now, is that such testimony would impeach the agent’s testimony that the offense had occurred. Appellant’s contention is without merit. The agent testified that he had no connection with or personal knowledge about the filing of charges against specific defendants. The agent testified that Department of Public Safety procedure for an undercover agent is such that he merely turns in evidence and offense reports to the Department and has no further input until he is called to testify. The trial judge properly ruled that the testimony in question was immaterial. The agent was called to testify to certain occurrences within his personal knowledge and cannot be impeached by a showing that events outside his control did not happen.

Appellant’s final ground of error advances the claim that the evidence called for a circumstantial evidence charge. He asserts there was no direct evidence that he had engaged in the delivery of heroin that took place and he is therefore entitled to such a charge.

Appellant misperceives the manner in which he became a party to the offense. The jury was properly charged that it could find appellant guilty as a party if it found he had aided and encouraged the offense under V.T.C.A., Penal Code Sec. 7.02(a)(2). The evidence would have been circumstantial had the ultimate fact issue been whether Garza and Nava had acted together, but there was direct evidence that appellant aided and encouraged the sale, and was thus a party under Sec. 7.02(a)(2), supra.

“The distinction between circumstantial and direct evidence is that the latter applies directly to the ultimate fact to be proven, while circumstantial evidence is the direct proof of a minor fact which by logical inference demonstrates the fact to be proven.” McBride v. State, Tex.Cr. App., 486 S.W.2d 318, 319.

Appellant’s approval of the sample and his later demand for heroin and acceptance of money was direct evidence that he had intentionally aided and encouraged the commission of this offense.

The judgment of the trial court is affirmed.


author: DOUGLAS, Judge.

text:
    Yale LASKER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55034-55036.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 22, 1978.

      W. John Allison, Jr., on appeal only, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Richard E. Zadina and Richard G. Worthy, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for three offenses of theft over $200. Punishment was assessed by the jury at eight years.

Thirty-one witnesses testified. In brief, the testimony shows that appellant was engaged in a scheme whereby the complainants were induced to pay a fee in exchange for his promise to obtain for them small business loans. The record reflects that at the time of the instant offenses lending institutions often required loan applicants to obtain loan insurance from the Small Business Administration for up to ninety percent of the amount borrowed. By requiring such a federal guarantee that at least ninety percent of the loan would be repaid, banks reduced their risk in such transactions to ten percent. Such federally guaranteed notes are more readily saleable among banks and lending institutions. Loan applicants were further required, as a prerequisite of financing, to find another lending institution willing to purchase all or part of the ninety percent guaranteed note from the original lending bank.

Appellant moved from California to Dallas in March of 1975. In Dallas he rented a downtown office as well as an apartment in a downtown building. He placed advertisements in the classified section of both Dallas newspapers which read:

“SBA LOANS money available for any type of business loan. Start-ups and expansion welcome. Capital Acquisition Company 1800 Fidelity Union Tower 748-4635.”

To the complainants, who were among eighteen Dallasites taken in by his scheme, the appellant represented that he would prepare a loan application and necessary accompanying documents, present the loan package to an original lending bank, apply to the Small Business Administration for a guarantee of the proposed loan and secure such a guarantee, and seek out and find a second lending institution willing and able to buy the guaranteed note in whole or in part. In exchange for his ostensible services, appellant charged each of the complainants a fee of $1500. Each received from appellant a gold embossed “Certificate of Guarantee” which read:

“This certifies that [name of complainant] (Borrower) is entitled to the following guarantee from the Capital Acquisition Company. The Company guarantees to find a financial institution willing and able to purchase the 90% SBA guaranteed portion of a previously approved Small Business Administration loan to the Borrower, in the approximate principal amount of [amount specified]. This guarantee becomes effective only if a bank agrees to fund the loan and if the loan is approved by the SBA.
“If the Company fails to find a financial institution who will purchase the 90% guaranteed portion of the loan after approval by a bank and the SBA, all money paid to the Company will be refunded in full.”

Victor Domino testified that he wanted to borrow $30,000 in order to buy a convenience food store. He went to appellant’s office in response to his advertisement and was assured by appellant that there was a ninety-nine percent chance that his loan could be obtained within five to six weeks. Domino was told that the assistance fee would be $1500, with $750 payable immediately and the balance due upon completion of the loan. He wrote appellant a check for $750, signed a contract, and received a Certificate of Guarantee. Domino testified that appellant led him to believe that by virtue of this guarantee all of his money would be refunded in the event a loan could not be negotiated.

Appellant’s son prepared a loan package in California and mailed copies to three Dallas banks. There was neither a personal followup nor any other effort made to obtain the complainant’s loan. The loan was not obtained and appellant refused to return the complainant’s down payment.

The same circumstances were repeated with regard to the other complainants, Rodney Hawkins and Ruth Johnson. Each responded to appellant’s ad and each was told that his or her loan could be obtained in a matter of weeks. Both Hawkins and Johnson paid appellant the sum of $1500 in advance and received a Certificate of Guarantee which they were led to believe entitled them to a full refund if a loan could not be arranged. Neither Hawkins or Johnson obtained a loan. When they demanded a refund of their money they were refused. The record reflects that nothing more than a “loan package” was prepared for the complainant in each case and mailed to three banks. At trial, loan officers from various banks testified that their lending institutions would not consider a loan application which is merely mailed in and not followed by a personal meeting.

Lastly, the evidence shows that on July 3, 1975, approximately four months after his arrival in Dallas, appellant departed for California, leaving unpaid bills for apartment and office rent, printing and advertising.

Appellant contends that the trial court erred in refusing to submit a requested charge on the lesser included offense of deceptive business practices. See, V.T.C.A., Penal Code, Section 32.42. This contention is without merit. Article 37.09, V.A.C.C.P., provides, in part, that an offense is a lesser included offense if it is established by proof of the same or less than all the facts required to establish the commission of the offense charged. The offense of deceptive business practices is not a lesser included offense of theft. V.T.C.A., Penal Code, Section 32.42(b), provides that one is guilty of an offense if he commits one or more specified deceptive practices in the course of business. This element is not an element of the offense of theft. The elements of deceptive business practices, therefore, are not the same or less than the elements of theft. The appellant’s requested charge was properly denied.

He alleges that the court further erred in failing to charge the jury on the defense of mistake of fact. Y.T.C.A., Penal Code, Section 8.02. Appellant maintains, in support of this argument, that all three complaining witnesses were ignorant about the transaction they entered into with appellant, as well as about the intended meaning of the certificate of guarantee. Such ignorance on the part of the complainants is immaterial. Penal Code Section 8.02(a) provides that it is a defense to prosecution that the defendant (not the complainant) has, through mistake, formed a reasonable belief about a matter of fact which belief negates the culpability required. There is no evidence that appellant labored under any mistake of fact. Inasmuch as the issue was not raised by the evidence, the court did not err in failing to so charge the jury.

Appellant next argues that the court erred in permitting the State to prove that he left Dallas owing office rent, apartment rent, advertising bills and printing bills. Specifically, he contends that such proof showed extraneous offenses which were not relevant to any motive, intent, scheme, identity or design.

Contrary to appellant’s contention, his sudden departure from Dallas and failure to pay the operating expenses of his business were highly relevant to the issue of whether he deprived the complainants of money without their effective consent. The absence of such effective consent to a taking is an essential element of the offense of theft as charged in the instant indictment. V.T.C.A., Penal Code, Section 31.03. An owner’s effective consent is vitiated if obtained through deception. Deception includes the promise of performance that is likely to affect the judgment of another in a transaction and which the defendant does not intend to perform or knows will not be performed. V.T.C.A., Penal Code, Section 31.01(2)(E). The evidence shows that appellant did not perform the services which he promised to the complainants. The State points out, however, that under Section 31.-01(2)(E) mere non-performance is not in itself sufficient evidence of intent to deceive. Other evidence on the issue of intent or knowledge is required.

The proof that appellant “skipped town” without paying his business bills was admissible to show that appellant either knew or intended that the service which he promised would not be performed. The fact that appellant shut down his place of business, left the jurisdiction without notice and failed to pay the expenses incident to the rendering of his advertised service was indicative of his intent not to perform such services. Appellant, moreover, told each of the complaining witnesses that their loans would be procured within a period of five to eight weeks. When that period of time had lapsed and the complainants began to inquire about their loans, they found that appellant had suddenly moved to California. The timing of appellant’s move, along with the trail of unpaid business debts left in his wake, was not consistent with the kind of bona fide move made by one who intends to stay in business and render service to those with whom he is already under contract. Finally, the record reflects that for appellant to adequately perform the services which he guaranteed to his customers he would have had to personally visit banks and lending institutions in the Dallas area. Inasmuch as he did not even remain in Texas, he could not have intended to perform this service.

Appellant’s intent was an essential element of the State’s case which could not be inferred from the act of non-performance itself. His extraneous offenses were admissible on that issue, as well as to show the factual context in which the offenses occurred. Mallicote v. State, 548 S.W.2d 42 (Tex.Cr.App.1977); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Crawley v. State, 513 S.W.2d 62 (Tex.Cr.App.1974).

Appellant complains of the testimony of L. H. Hudspeth and William Bowling. At trial, Hudspeth, a loan officer at the Dallas branch of the SBA, testified that numerous inquiries and complaints had been received from individuals on whose behalf appellant had promised to file loan applications. No record was found of any of these applications ever having been filed with the SBA in Dallas by Yale Lasker. Bowling testified that he was the Director of Investigators with the SBA in Washington, D.C. He further stated that a nationwide records search was conducted to determine if any SBA office in the United States had ever received a loan application from Capital Acquisition Company. The records showed no such filings; they also showed that only one SBA loan had ever been applied for anywhere in the United States by Yale Lasker and that that loan application had been filed in Los Angeles in July of 1974. Appellant contends that such testimony showed extraneous offenses and was erroneously admitted.

The testimony of which appellant complains showed that appellant had engaged in transactions of the kind for which he was prosecuted in the instant case. Such evidence was admissible not only on the issue of intent but to show the organized scheme which he utilized in perpetrating these offenses. Mallicote v. State, supra; Cameron v. State, supra; Johnson v. State, 494 S.W.2d 870 (Tex.Cr.App.1973). No error is shown.

He next asserts that the trial court improperly excluded from evidence want ad clippings from California newspapers which advertised the same type of loan assistance service as that ostensibly offered by appellant. It is contended that such evidence was relevant to show the legitimacy of the type of business engaged in by appellant. We agree with the State that the appearance of advertisements by third parties in a Los Angeles paper has no bearing whatever on the legitimacy of the service which was advertised by appellant. The evidence was properly excluded.

After sustaining the State’s objection to the admission of such evidence, the court instructed defense counsel to make the testimony elicited from the witness David Lasker relevant to the instant case. Defense counsel objected to the court’s statement as a comment on the weight of the evidence and the court sustained the objection. Appellant here complains that the court’s remark caused irreversible prejudice and therefore constituted fundamental error. We do not agree. Appellant’s objection was sustained. No instruction to disregard was requested nor was a motion for mistrial made. Appellant received all the relief which he asked for at trial. Cazares v. State, 488 S.W.2d 110 (Tex.Cr.App.1972); Smith v. State, 486 S.W.2d 374 (Tex.Cr.App.1972). Nothing is preserved for review.

Finally, Lasker attacks the sufficiency of the evidence. Appellant did not testify at the guilt-innocence stage. He did, however, testify at the punishment stage where, in response to questions posed by defense counsel, he admitted all the elements of the offense of theft. Under such facts he may not, on appeal, challenge the sufficiency of the evidence. Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1976). See also, Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978).

No reversible error having been shown, the judgments are affirmed.


text:
    David Lee GARRETT, Appellant, v. The STATE of Texas, Appellee.
    No. 55305.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 22, 1978.

      Melvyn Carson Bruder and Barry P. Helft, Dallas, for appellant.
    • Henry M. Wade, Dist. Atty., W. T. West-moreland, Jr., and James D. Burnham, Asst. Dist. Attys., Dallas, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder wherein appellant was convicted under the provisions of V.T.C.A., Penal Code Sec. 19.02(a)(3), the felony murder rule, for causing the death of an individual by committing an act clearly dangerous to human life in the course of committing a felony. The felony was an aggravated assault on the deceased. The punishment was 68 years in prison.

Appellant, in a confession, admitted going into the Ben Franklin store where the offense occurred to buy some film. He stated that he became involved in an altercation with the clerk at the cash register and pulled a gun he was carrying to scare the clerk. He asserts the gun went off immediately on being pulled from his pocket and that he had no intention of shooting the clerk. Appellant fled the scene without taking anything but turned himself in shortly thereafter. The State was unable to bring forth any eyewitness who could testify to exactly what had transpired between appellant and decedent except a five-year old boy whose testimony was inconclusive.

In his first ground of error appellant contends the evidence is insufficient because the aggravated assault cannot support a felony murder conviction. In his argument under this ground of error, however, it is made clear that his real complaint is not addressed to the sufficiency of the evidence to support the allegations in the indictment. It is, instead, a challenge to the scope of the felony murder doctrine under Sec. 19.02(a)(3), supra. As stated in his brief, “The ultimate question presented in this ground of error is whether the felony-murder doctrine, as codified in Sec. 19.-02(a)(3), should apply where the precedent felony is an assault and is inherent in the homicide.”

The felony murder rule dispenses with any inquiry into the mens rea accompanying the homicide itself. The underlying felony supplies the necessary culpable mental state.

“Thus, the culpable state of mind for the act of murder is supplied by the mental state accompanying the underlying committed or attempted felony giving rise to the act. The transference of the mental element establishing criminal responsibility for the original act to the resulting act conforms to and preserves the traditional mens rea requirement of the criminal law.” Rodriguez v. State, Tex.Cr.App., 548 S.W.2d 26.

The instant prosecution must rest on the proposition that the intent with which the act of aggravated assault was committed can be transferred to the act which caused the homicide. The indictment charges that the gravamen of the aggravated assault was threatening decedent with a gun and that the dangerous act resulting in death was pulling a loaded pistol from his pocket to scare the decedent. The State is thus attempting to use the very act which caused the homicide, committing an aggravated assault by use of a deadly weapon, as the felony which boosts the homicide itself into the murder category.

To allow this would make murder out of every aggravated assault that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault. Such a result has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide. As then Chief Judge Cardozo stated:

“To make the quality of the intent indifferent, it is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide . . . Such a holding would mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential . The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e. g., robbery or larceny or burglary or rape.” People v. Moran, 246 N.Y. 100, 158 N.E. 35 (1927).

The felony murder rule calls for the transfer of intent from one criminal act to another, from the underlying felony to the act causing the homicide. Rodriguez v. State, supra. In the present case appellant pulled a gun which went off, striking the victim. The aggravated assault and the act resulting in the homicide were one and the same. The application of the felony murder doctrine to situations such as this is an attempt to split into unrelated parts an indivisible transaction. There must be a showing of felonious criminal conduct other than the assault causing the homicide.

Any other result in this case would allow circumvention of the statutory limits of the felony murder statute. Sec. 19.-02(a)(3), supra. The legislature has provided that an individual is guilty of murder when death results from an act dangerous to human life committed in the course of a felony other than voluntary or involuntary manslaughter. Most voluntary manslaughter offenses are initiated as aggravated assaults. If a felony murder may be predicated on the underlying aggravated assault, the statutory restriction on the scope of the doctrine that prohibits basing a felony murder prosecution on voluntary manslaughter could be regularly circumvented. The legislative prohibition against resting a Sec. 19.-02(a)(3) prosecution on voluntary manslaughter necessarily includes a prohibition against resting such a prosecution on offenses statutorily includable in voluntary manslaughter. To hold to the contrary would render the statute meaningless and its effect nil.

In the instant case, the State improperly prosecuted appellant under the felony murder doctrine.

The judgment is reversed and the indictment ordered dismissed.

      . “(a) A person commits an offense if he:
      “(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission of attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.”

      . The indictment, omitting formalities, reads as follows:
      “David Lee Garrett . . did unlawfully commit the felony offense of aggravated assault with a deadly weapon by then and there intentionally and knowingly threatening William V. Ray with imminent bodily injury by use of a deadly weapon, to-wit: a pistol; and while in the course of and in furtherance of the commission of that felony offense he did then and there commit an act clearly dangerous to human life, to-wit: he pulled a loaded pistol out of his pocket to scare the said William V. Ray; thereby causing the death of the said William V. Ray.”

      . See, 40 A.L.R.2d 1341 (1971); People v. Ireland, 70 Cal.2d 522, 75 Cal.Rptr. 188, 450 P.2d 580 (Cal. 1969); State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965); Tarter v. State, 359 P.2d 596 (Okl.Ct.Crim.App.1961); People v. Wagner, 245 N.Y. 143, 156 N.E. 644 (1927).

      . The elements of the mens rea necessary for murder referred to under New York law are different from those required by V.T.C.A., Penal Code Sec. 19.03 but the principal is the same. The felony murder rule allows a conviction for murder without proof of the killer’s state of mind, Whatever that is required by statute to be.

      . Such was an apparently supportable theory of the offense in this case, in that voluntary manslaughter was submitted to the jury as a lesser included offense of the aggravated assault-felony-murder.

      . The State’s reliance on 'Rodriguez v. State, Tex.Cr.App., 548 S.W.2d 26, is misplaced. The statement there that “the legislature has seen fit to exempt only felonies of voluntary and involuntary manslaughter” merely restates the terms of the statute itself, and must be construed, as the statute itself, in light of commonsense and to promote the code’s objectives. Sec. 1.05(a), P.C.


author: TOM G. DAVIS, Judge.

text:
    Vernon Dean SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 55483.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 22, 1978.

      John S. Ament, III, Jacksonville, for appellant.
    K. E. “Pete” Menefee, Rusk, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for theft over $200. V.A.P.C. Penal Code, Sec. 31.03. Punishment, enhanced by two prior felony convictions, was assessed at life imprisonment.

Appellant contends that although the indictment alleged that the property had a value of over $200, it was fundamentally defective for failing to allege a value of less than $10,000. Appellant argues that every fact that affects the degree or kind of punishment must be alleged in the indictment. He maintains that an indictment that fails to allege a value of less than $10,000 is defective in that it fails to differentiate between the third degree felony for theft over $200 and less than $10,000 and the second degree felony for theft over $10,000. See Sec. 31.03, supra. Appellant did not move to quash the indictment or otherwise object until after the trial.

Appellant relies on cases that hold that the value of property must be alleged if it affects the punishment. E. g., Standley v. State, Tex.Cr.App., 517 S.W.2d 538; Ex parte Roberts, Tex.Cr.App., 522 S.W.2d 461. These cases involve the failure of the indictment to show on its face whether the offense is a felony or misdemeanor. The indictment in the present case, however, is sufficient to show a felony.

This Court, in Nitcholas v. State, Tex.Cr. App., 524 S.W.2d 689, held that the evidence introduced in a theft case was sufficient to prove the value of the property stolen. Although the language in the indictment is not set out, a footnote indicates that it set out the alleged value of the stolen property only. The Court stated:

V.T.C.A. Penal Code, Sec. 31.03(d)(5) provides that an offense is a ‘felony of the second degree if the property stolen is $10,000 or more.’ While we find the pleadings in this cause are sufficient to support a conviction for a third degree felony, it should be noted that if the proof had shown the value of the article taken to be $10,000 or more, the indictment would limit the conviction to a third degree felony. (524 S.W.2d at 691, fn. 1)

Here, as in Nitcholas, the indictment is sufficient to charge a felony theft although it fails to specify the upper limit of the value of the property. Although this failure would prohibit conviction for theft over $10,000 even if the State proved up this greater value, it does not render the indictment fundamentally defective in regard to alleging a theft less than $10,000 but over $200. Thus, we hold that the present indictment is not fundamentally defective.

Appellant also contends that one of the convictions used to enhance his punishment was void. This ground is based on a discrepancy between the judgment which set punishment at two years and the 4 year term set out in the order revoking probation. This is shown in copies of the records of that prior conviction attached to the appellant’s brief, but is not supported by the record certified by the clerk and before us now. Also enclosed with the appellant’s brief is the docket sheet of that prior cause, which indicates that the inconsistency is a clerical error. No objection was made at trial on this ground.

This Court cannot consider material not introduced into evidence which was not before the trial court. Williams v. State, Tex. Cr.App., 441 S.W.2d 853.

The judgment is affirmed.

      . The docket sheet reflects that the appellant was assessed four years and probation granted. The conditions of probation signed by the appellant also indicate the sentence to be four years, as does the motion for revocation and the order of revocation. We note that this probation was revoked less than three months later.


author: PHILLIPS, Judge.

text:
    Albert Allen FELLA, Appellant, v. The STATE of Texas, Appellee.
    No. 56549.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 22, 1978.
    William C. Sherk, Houston, for appellant.
    Steve W. Simmons, Dist. Atty., and Douglas Gelo, Asst. Dist. Atty., El Paso, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for voluntary manslaughter. The punishment was assessed at 17 years’ imprisonment.

At the outset we note as unassigned error in the interest of justice (see Article 40.09, Section 13, V.A.C.C.P.) that the charge of the trial court authorized the jury to find the appellant guilty of voluntary manslaughter on a theory not alleged in the indictment. The indictment alleges, in pertinent part:

“ . . . ALBERT ALLEN FELLA . did then and there unlawfully and while under the immediate influence of a sudden passion arising from an adequate cause, intentionally and knowingly cause the death of an individual, PAUL CAREY SMITH, by stabbing him with a knife, . . .. ”

The court’s charge applying the law to the facts of the case and instructing the jury reads as follows:

“Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about August 20, 1976, in El Paso county, Texas, the defendant, intentionally or knowingly, either (1) caused the death of Paul Carey Smith, by stabbing him with a knife, or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life, to wit: by stabbing the said Paul Carey Smith with a knife and caused his death, you will in either of such cases find the defendant guilty of voluntary manslaughter.”

See Plunkett v. State, Tex.Cr.App., (No. 55,078, November 15, 1978); Brewer v. State, Tex.Cr.App., 572 S.W.2d 940 (1978); Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303.

Because of the fundamental error identified above, the judgment of conviction is reversed and the cause is remanded.


author: ROBERTS, Judge. ODOM, Judge,

text:
    The STATE of Texas et al., Appellant, v. William Hugh HENSON, Jr., Appellee.
    No. 60141.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 22, 1978.
   OPINION

ROBERTS, Judge.

This is a purported appeal by the State of Texas and the City of Fort Worth from an order entered by the 48th District Court of Tarrant County.

Pursuant to Articles 55.01-55.05, V.A.C. C.P., the trial court ordered that the appel-lee’s arrest record be expunged. The State and the City contended in the trial court that the expunction statutes relied upon were unconstitutional. After their contention was overruled, appellants gave notice of appeal to this Court and to the Court of Civil Appeals. The record was subsequently sent to this Court.

The Court of Criminal Appeals has jurisdiction to determine whether it has jurisdiction. Ex parte Paprskar, 573 S.W. 2d 525 (Tex.Cr.App.1978); and cases there cited. Accordingly, we order that this record be filed so that we may determine whether this Court has jurisdiction.

In Paprskar we held that attempted appeals from orders entered pursuant to Articles 55.01-55.05, supra, were not criminal cases. We also held that, since no statutory right to appeal had been conferred by Chapter 55, we had no power to entertain such cases.

It follows, as it did in Paprskar, that the appeal must be dismissed for want of jurisdiction.

ODOM, Judge,

dissenting.

The majority dismiss this cause for lack of jurisdiction. As authority they cite Ex parte Paprskar, Tex.Cr.App., 573 S.W.2d 525.

In the instant case a district judge in Tarrant County granted the petition of William Hugh Henson filed pursuant to Art. 55.02 of the Texas Code of Criminal Procedure, to secure expunction of an arrest record, a statutory right provided for by Article 55.01 of that same Code. In doing so the district judge denied motions to dismiss filed by the City of Fort Worth and the Office of District Attorney of Tarrant County, in which it was asserted that the expunction provisions of the Code of Criminal Procedure are unconstitutionally vague.

In Ex parte Paprskar another district judge in Tarrant County denied Paprskar⅛ petition for expunction of his arrest record filed pursuant to the same statute. In doing so that district judge ruled the expunction provisions of the Code of Criminal Procedure are unconstitutionally vague.

These two cases, then, show conflicting rulings on the constitutionality of a provision of the Code of Criminal Procedure in courts of concurrent jurisdiction in the very same county. Are the laws of this State to be constitutional or not according to the forum in which redress is sought? Will the law be not a uniform and consistent matter throughout the State, but instead, a patchwork quilt blanketing the land with uncertainty and unpredictability? The answer is that it cannot be so, at least not for long. This Court has the power to decide the issue and render the law whole again, and it should do so. If we neglect our duty to act, the issue will be resolved elsewhere.

The second paragraph of Article 5, Section 5, of the Texas Constitution, as amended in 1977, now provides:

“Subject to such regulations as may be prescribed by law, regarding criminal law matters, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writs of habeas corpus, mandamus, procedendo, prohibition, cer-tiorari, and such other writs as may be necessary to protect its jurisdiction or enforce its judgments.”

This amended constitutional provision was recently interpreted by an undivided court sitting en banc. In Thomas v. Stevenson, Tex.Cr.App., 561 S.W.2d 845, 846-847, Judge Douglas, writing for the Court, stated:

“Under [the prior] constitutional provision, the Court could only issue writs of mandamus to enforce its appellate jurisdiction but not the power to issue writs of mandamus generally. [Citations omitted.]
“However, the 65th Texas Legislature adopted Senate Joint Resolution No. 18, Acts 1977, p. 3359, which proposed to amend Article 5, Section 5. This amendment was approved by the voters of Texas and became effective January 1, 1978.
“The amendment when proposed was to provide the Texas Court of Criminal Appeals with additional power to grant extraordinary writs in cases regarding criminal matters. .
“We therefore conclude that the additional provisions of the amendment gave this Court authority to issue extraordinary writs including the power to issue writs of mandamus to compel a speedy trial in a criminal case.”

In his concurring opinion in that case, Presiding Judge Onion emphasized the significance of the expansion of this Court’s extraordinary writ powers:

“[L]egislative history shows that Senate Joint Resolution No. 18 was drafted, among other things, to expressly give the Court of Criminal Appeals the authority to issue writs of mandamus to compel speedy trials in criminal cases in this State. This writer and other members of this court appeared before legislative committees of both the Senate and the House to explain its provisions, and to point out that under the then existing constitutional provisions the Court of Criminal Appeals, the court of last resort for criminal matters in this State, did not have the authority to issue writs of mandamus to compel speedy trials in criminal eases.
“Under [the prior] constitutional provision and decisional law, this court could only issue the writ of mandamus to protect its appellate jurisdiction or its original jurisdiction to issue the writ of habe-as corpus. Thus when a defendant in a criminal case sought a writ of mandamus to compel a speedy trial, he could not obtain one from the court of last resort in criminal cases because neither this court’s appellate jurisdiction nor its original jurisdiction to issue the writ of habeas corpus was in need of protection. Such defendant was required to apply to the Supreme Court of Texas, a court of generally civil jurisdiction, for the needed mandamus since such court . . . had the general authority to issue the writ of mandamus. .
“It was in part to correct this anomaly that Senate Joint Resolution No. 18 was drafted to give this court original jurisdiction not only to issue writs of habeas corpus but writs of mandamus, proceden-do, prohibition and certiorari.” Id., at 847-848.

Application of this new constitutional power has not been limited to applications requesting a speedy trial. In State ex rel. Vance v. Routt, Tex.Cr.App., 571 S.W.2d 903, an application by a district attorney seeking a writ of mandamus to compel a district judge to vacate the final forfeiture of an appearance bond was granted and the writ issued, directing that the prior judgment in the bond forfeiture ease be vacated and that a judgment for the full amount of the bond and costs be entered. Thomas v. Stevenson, supra, was relied on, and it was held that a bond forfeiture proceeding is “criminal in nature" within the meaning of the constitutional scope of this Court’s extraordinary writ powers to exercise jurisdiction in “criminal law matters.”

In Ex parte Paprskar, supra, relied on by the majority in this case, it was held that a petition for expunction of records of arrest under Art. 55.02, supra, is not a “criminal case” within our appellate jurisdiction because petitioner was not placed in jeopardy by the proceeding, he was subjected to no criminal penalties thereby, and the action was not brought by or in the name of the State for the violation of any penal statute. Without disputing that holding as to what constitutes a criminal case, this Court’s extraordinary writ jurisdiction, as opposed to its appellate jurisdiction, is not limited to “criminal cases,” but extends to the broader category of “criminal law matters.”

Arrest records and proceedings for their expunction, it cannot reasonably be denied, constitute criminal law matters. Both the authority for arrest and the right under statutorily prescribed conditions for the ex-punction of arrest records are provided for in the Code of Criminal Procedure. Authority to arrest arises from the criminal law process, and the records of such events are maintained by agencies charged with execution of the criminal process. The legality of an arrest and detention is subject to challenge by application for writ of habe-as corpus in this Court. Thus, although the majority here and in Ex parte Paprskar, supra, may be correct in their limited holdings that the important issue presented could not be heard as an appeal because no “criminal case” within this Court’s appellate jurisdiction was presented, the question of whether the issue may be reached by entertaining the matters as applications for writ of mandamus was not discussed in either case. Proper evaluation of that jurisdictional issue permits but one conclusion: This Court has both the power to consider the cases under our original mandamus jurisdiction and the duty to decide the important constitutional issue in the criminal law matters presented.

The fact that the matter was not urged as mandamus should not deter us. In State ex rel. Vance v. Clawson, Tex.Cr.App., 465 S.W.2d 164, this Court accepted an application for writ of prohibition and then disposed of it as an application for writ of mandamus. In Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774, a case that started in mandamus concluded in habeas corpus. In Basaldua v. State, Tex.Cr.App., 558 S.W.2d 2, what arrived as an appeal left as habeas corpus. Broggi v. Curry, Tex.Cr.App., 571 S.W.2d 940, saw a habeas corpus application transformed to mandamus. And the case of Ex parte Clear, Tex.Cr.App., 573 S.W.2d 224, a multiple application for ha-beas corpus, mandamus, and prohibition, was ultimately disposed of as habeas corpus, although the substantive relief awarded bears a closer resemblance to mandamus. In each of these cases this Court did not hestitate to dispose of the case under the form of writ considered most appropriate, regardless of the form in which it was originally presented. It is proper, and in harmony with contemporary trends, that substance should be favored over mere formalities where no compelling reason for rigid adherence to formal requirements can be advanced. We should use the same approach in this case and in Paprskar, and consider the issue under our mandamus jurisdiction. The motion for leave to file motion for rehearing should be granted in Paprskar, and the cases should be considered together for resolution of the important constitutional issue presented.

Although the exercise of extraordinary writ jurisdiction is discretionary with the Court, when serious constitutional questions are presented, and when no avenue of later review by appeal is available, we should not hesitate to accept jurisdiction. The alternative is inconsistency and chaos among the courts in the State. The two cases thus far presented to this Court show opposite conclusions from the same county on the question of whether the law is constitutional. Accepting these cases for determination of the constitutional issue will not open the gates for review of all expunction applications under Article 55.02, supra. Mandamus does not allow review of exercises of discretion in the fact finding process. It is only upon the refusal to act when there is no discretion in the matter that mandamus may be used to compel action. In this case the State seeks to have the order set aside on grounds that the statute is unconstitutional and the judge was therefore without authority to act. If correct, mandamus is the only means by which justice may be done in that case. In the Paprskar case the tables are reversed. Paprskar contends the statute is constitutional and the trial judge was therefore under a duty to entertain his motion. If correct, mandamus is the only means by which justice may be done in his case. The existence of the right created by Art. 55.01, supra, cannot remain in its present state of inconsistency and uncertainty; the constitutional issue must be resolved. This Court has the power and the duty to resolve that issue.

Should this Court fail in its duty to address this important criminal law matter, it can be expected that the petitioning parties will seek relief and secure review from the Supreme Court of Texas, which has jurisdiction that overlaps with ours when mandamus is sought against district judges. Art. 1733, V.A.C.S. That court has previously exercised such powers in criminal law matters when this Court lacked the constitutional authority recently given it. State ex rel. Pettit v. Thurmond, Tex., 516 S.W.2d 119; State v. Olsen, Tex., 360 S.W.2d 398; Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59; Stakes v. Rogers, 139 Tex. 650, 165 S.W.2d 81. Before amendment of Article 5, Sec. 5, supra, as pointed out in Thomas v. Stevenson, as quoted above, the Supreme Court was the only available forum in which to seek mandamus to secure a speedy trial in a criminal case. In fact, Thomas himself first sought relief from the Texas Supreme Court, and that court transferred the ease to this Court for consideration of whether we had jurisdiction under the new constitutional powers. After that court’s deference to this Court’s newly acquired jurisdictional powers in a matter where both courts had potential jurisdiction, it is unfortunate that this Court is embarking on a course of narrow construction of those newly acquired jurisdictional powers that will send petitioners in criminal law matters back to the only forum previously available.

One may also wonder whether the Legislature will again listen favorably to expressions by this Court of needed statutory changes in the operations of this Court when we so easily close the door on the expansion of jurisdiction previously needed, requested, and then granted by the Legislature and the voters of Texas in 1977.

To the refusal by this Court to exercise its constitutional power and duty in this case and Paprskar, I vigorously dissent.

ONION, P. J., joins in this dissent.

      . The first paragraph of Art. 5, Sec. 5, Texas Const., provides for this Court’s appellate jurisdiction: “The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.” (Emphasis added.)


author: CORNELIUS, Chief Justice.

text:
    HENRY S. MILLER COMPANY, Appellant, v. TREO ENTERPRISES et al., Appellees.
    No. 8589.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 19, 1978.
    Rehearing Denied Oct. 31, 1978.
    Daniel J. Sheehan, Jr., Wynne & Jaffe, Dallas, for appellant.
    Ben L. Krage, Kasmir, Willingham & Krage, Dallas, for appellees.
   CORNELIUS, Chief Justice.

Henry S. Miller Company brought this suit against Treo Enterprises and others to recover the balance due on a promissory note representing a broker’s commission on the sale of real estate. Miller is a Texas corporation engaged in the real estate brokerage business. In February of 1975, as a method of obtaining the exclusive right to sell a certain warehouse in Dallas, the Miller Company, as trustee, entered into a contract to purchase the property from the owners. The contract named Jones Lake Company, Inc., as seller, Henry S. Miller Company, trustee, “AND/OR ASSIGNS” as buyer, and Henry S. Miller Company as principal agent. It provided that a broker’s commission of $15,000.00 would be payable to Henry S. Miller Company “as principal agent.” After execution of the contract, an employee of Miller, Jerry McCutchin, solicited Treo to purchase the property as Miller’s assignee. To assist Treo in evaluating the property, McCutchin furnished it an advertising brochure he had prepared which contained a projection of expected annual income the property would produce, a computer printout showing financial information for the preceding five years, a copy of the contract of sale between Jones Lake Company and the Miller Company, and a copy of a lease agreement which was then in effect covering the warehouse. Treo decided to purchase the property and the transaction was closed on April 15, 1975. Treo financed the purchase by assuming an existing $205,000.00 first lien indebtedness and making a new $60,000.00 second lien loan from another source. In order to further reduce the necessary cash outlay, Treo and Miller agreed that Treo could deduct from the sale price the $15,000.00 commission the owners were obligated to pay Miller, and give Miller a promissory note for that amount payable in quarterly installments of $1,250.00 each. Treo executed the note, made three of the payments and then advised Miller that it would not make any further payments. The reason given for its default on the note was that, through McCutchin’s advertising brochure, as well as other means, Miller had made material misrepresentations concerning the income producing capability and the tax liability of the warehouse property. Miller then brought suit on the note. Treo defended on grounds that Miller had not complied with the Texas Real Estate License Act in arranging and handling the sale, and it also filed a counter-claim, based on the alleged misrepresentations, seeking cancellation of the note and recovery of the sums previously paid thereon. The jury found, in effect, that the promissory note represented an assumption by Treo of the seller’s obligation to pay the real estate commission to Miller, and it answered the special issues concerning fraud and misrepresentation favorably to Miller. The district court denied recovery to either Miller or Treo, and Miller has appealed.

As it was established that Treo executed the promissory note and that only three payments thereon had been paid, Miller was entitled to judgment for the balance due on the note unless such a recovery was precluded because of a failure to comply with Article 6573a or by reason of some other infirmity in Miller’s cause of action.

Section 20(a) of Article 6573a (Supp.1978) provides that:

“A person may not bring or maintain an action for the collection of compensation for the performance in this state of an act set forth in Section 2 of this Act without alleging and proving that the person performing the brokerage services was a duly licensed real estate broker or salesman at the time the alleged services were commenced, or was a duly licensed attorney at law in this state or in any other state.”

Treo urges that because Miller failed to either plead or prove that it was a licensed broker, a recovery was not authorized. Miller concedes that it neither pleaded nor proved that it was a licensed broker but argues that because it proved that its employee McCutchin was a licensed broker at the time he handled the transaction for Miller, the statute was satisfied. We cannot agree.

The key to a proper interpretation of the statute, we believe, is the meaning of the phrase “. . . person performing the brokerage services . . . .” The statute defines “person” as an individual, a partnership or a corporation. Brokerage services are defined as, among other acts, the selling or offering to sell real estate, the listing or offering to list real estate for sale, and the negotiating or attempts to negotiate the sale of real estate. In this case it is clear that it was the Henry S. Miller Company which performed such brokerage services. It was the Miller Company, not McCutchin, which contracted to buy the warehouse, which was named principal agent in that contract, which transferred its rights under that contract to Treo, and which earned and sought to collect the real estate commission. Indeed, Miller’s petition stated that “The property was sold to Treo Enterprises with Henry S. Miller Company acting as selling agent, . . . That Miller acted through its employee McCutch-in does not change the fact that it performed the brokerage services. A corporation can act only through persons, and the acts of those persons, when done for the corporation, are the acts of the corporation.

Miller argues that the intent of the Legislature was that the individual who deals directly with prospective sellers or purchasers must be licensed, and that it is not necessary that his corporate employer be licensed. In support of that argument, the peculiar phraseology of Section 20(a) is cited. It provides, not that the person bringing the suit must be licensed, but only that the person performing the brokerage services must have been licensed. We do not believe that language militates against our decision, but is consistent with it. Phrased as it is, the statute permits an assignee, successor or legal representative of a broker to maintain suit for a previously earned commission by showing that the broker who performed the service and earned the commission was licensed, even though the person bringing suit is not licensed. But we do not read the statute as allowing a corporation which performs brokerage services to escape the licensing requirements by merely licensing its employees who act for it. If that were the intent of the statute, there would be no need to provide, as it does, for the licensing of corporations as real estate brokers. Tex.Rev.Civ. Stat.Ann. art. 6573a, Secs. 2(5), 6(c) (Supp. 1978).

Strict compliance with the terms of the Real Estate License Act is required if a broker is to use the courts to recover his commissions. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960); MacPhee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App. San Antonio 1975, no writ). As Miller neither pleaded nor proved that it was a licensed real estate broker, the express language of Section 20(a) of the Act precludes it from bringing or maintaining suit for its commission. The district court therefore had no alternative but to deny a recovery.

Treo has pointed to several other deficiencies in Miller’s cause of action, but because of the disposition of the foregoing contention, it is not necessary that we discuss them.

The judgment of the trial court is affirmed.

ON REHEARING

In its motion for rehearing appellant insists that the promissory note it sought to collect was not for a real estate commission but simply represented money it loaned to Treo to partially finance the purchase of the warehouse. The transaction is susceptible to different constructions, but the question was submitted to the jury and it found that the note was given for the purpose of paying the real estate commission. From the record we are not able to say that such a finding is without any evidence to support it or that it is so against the great weight and preponderance of the evidence as to be manifestly wrong.

Appellant also suggests that our opinion may be interpreted as holding that, if an employer is licensed as a real estate broker, employees who perform brokerage services for the employer need not be licensed. Our decision is not properly subject to such an interpretation. It was undisputed that the employee here, Mr. McCutchin, was a licensed real estate broker.

The motion for rehearing is respectfully overruled.

      . Tex.Rev.Civ.Stat.Ann. art. 6573a.


author: ODEN, Justice.

text:
    In the Matter of the MARRIAGE OF Bill C. BURNS and Barbara A. Burns.
    No. 8588.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 19, 1978.
    Rehearing Denied Oct. 24, 1978.

      James F. Gaulding, Dallas, for appellant.
    Lee Sellers, Prothro & Sellers, Wichita Falls, for appellee.
   ODEN, Justice.

The appeal has been perfected from that portion of the divorce decree which divided the property of the parties.

On May 25, 1974, Barbara A. Burns and Bill C. Burns were married. Mrs. Burns had no appreciable separate property at that time; however, Mr. Burns was then the beneficiary of several trusts each of which owned substantial assets. Mr. Burns’ parents both died during the marriage of the parties and Mr. Burns is the beneficiary of a testamentary trust established by the terms of each of their wills. These trusts were unfunded at the time of trial, but will be funded with substantial assets at some future date. The parties were divorced on May 13, 1977, at which time the trial court, without jury assistance, made an approximately equal division of the property which was then subject to the dominion and control of the parties. Mrs. Burns, who is appellant herein, alleges that the undistributed income of the trusts and estates which was earned during the marriage is community property and that the trial court erred in failing to consider such undistributed income as community property in arriving at the property division or, if considered as community property, abused its discretion by awarding Mr. Burns approximately 90% of the community estate. Mrs. Burns concedes that the corpus of the trusts and estates is Mr. Burns’ separate property. She further concedes that she is not entitled to any interest in Mr. Burns’ separate property under the circumstances and her complaint on appeal is predicated on her assumption that the undistributed income of the trusts and estates which was earned during the marriage is community property.

Mr. Burns was the beneficiary of six trusts at the time the marriage was dissolved. His parents and grandparents were the settlors of three of these trusts. He was the settlor of the other three. All trusts came into existence prior to the marriage with the exception of one which was established and funded by Mr. Burns three months after the marriage with funds which were admittedly his separate property. Mr. Burns was not the trustee of any of the trusts. The three trusts funded by Mr. Burns’ relatives were “spendthrift trusts” in that their assets were not subject to alienation, attachment or assignment by Mr. Burns or his creditors. The remaining three trusts did not contain “spendthrift” provisions. Five of the trusts were “discretionary trusts” in that the trustee or trustees could either withhold or distribute the income and/or corpus at their sole discretion. The remaining trust did not contain a provision for either discretionary or periodic distribution of income and/or corpus, but rather directed that the corpus and accumulated income would be distributed to Mr. Burns on May 28, 1982.

In addition to the six trusts above described, Mr. Burns was the beneficiary of a testamentary trust established under the wills of each of his parents. As stated, Mr. Burns’ parents both died during the marriage of the parties. The testamentary trusts were not funded at the time of the divorce; however, the wills under which they were established had been probated. The testamentary trusts were both “spendthrift trusts” and “discretionary trusts.” Mr. Burns was not the trustee of either testamentary trust created by his parents.

Mrs. Burns does not suggest that any of the trusts or estates were created, funded or operated in fraud of her rights nor does she suggest that such entities are the alter ego of Mr. Burns for any reason such as his having constructive control over their assets by virtue of his relationship with the trustees. Under these circumstances, it is incumbent upon us to determine whether or not the undistributed income earned by these entities during the marriage is community property. If it is community property, we must then determine if the trial court considered it as such in dividing the property, and, if so, if it abused its discretion in the manner in which the property was divided. If it isn’t community property, we must affirm because Mrs. Burns does not claim any interest in Mr. Burns’ separate property.

It was held in Buckler v. Buckler, 424 S.W.2d 514 (Tex.Civ.App. Fort Worth 1968, writ dism’d), that undistributed trust income was not community property where the trustee had the right to withhold it from the trust beneficiary. Currie v. Currie, 518 S.W.2d 386 (Tex.Civ.App. San Antonio 1974, writ dism’d), held that undistributed income in a trust estate is not community property where the beneficiary does not have a claim to such income other than an expectancy interest in the corpus. We agree with each of these decisions, but to some extent they are distinguishable from the case. It was discretionary with the trustee in the Currie case, supra, whether to pay certain expenses out of either the income or the corpus of the trust and for that reason it was uncertain therein whether any income would be available for the beneficiary. Such a situation does not here exist. The trust in the Buckler ease, supra, was a “spendthrift trust” while three of the trusts in question do not contain provisions which prohibit alienation, assignment or attachment of the assets by either Mr. Burns or his creditors. Neither case considered whether income earned by the estate of a decedent was community property.

We feel that the determination of whether the undistributed income earned during a marriage by either a separate property trust or estate should be characterized as community property is governed by Section 5.01(b) of the Texas Family Code which provides:

“Community property consists of the property, other than separate property, acquired by either spouse during marriage.” (Emphasis added.)

It is unquestioned but what the property in question is income and thereby would normally be characterized as community property; however, the issue presented for our determination is whether the property was acquired by either spouse during the marriage. By definition, the undistributed trust and estate income had not been distributed to Mr. Burns nor did he have a present or past right to require its distribution so as to compel a finding that there was a constructive acquisition. The income was actually acquired by the trusts and estates and not by either Mr. or Mrs. Burns. As stated, there was no constructive acquisition. Since neither spouse actually or constructively acquired the undistributed trust and estate income during the marriage, such income, though earned during the marriage, remained a part of the respective trust or estate and was not subject to division by the court. Such income was not community property.

We have reviewed appellant’s other points of error and appellee’s crosspoint and find them to be without merit. They are accordingly overruled.

The judgment of the trial court is affirmed.


text:
    HILLKEE CORPORATION, Appellant, v. Robert E. HARRELL, Appellee.
    No. 8608.
    Court of Civil Appeals of Texas, Texarkana.
    Sept. 26, 1978.
    Rehearing Denied Nov. 21, 1978.

      Henry Ron White, White, Mahomes & Biscoe, Dallas, for appellant.
    Harold J. Dollinger, Dallas, for appellee.
   CORNELIUS, Chief Justice.

Hillkee Corporation appeals from a judgment of the district court which set aside an execution sale.

The judgment which produced the execution sale was taken by the State of Texas against Robert E. Harrell in the District Court of Travis County for the sum of $672.67 which represented delinquent sales taxes, penalties, interest and costs. Execution on the judgment was issued and levied in Dallas County upon a parcel of real estate owned by Harrell. After giving the required notice of sale, Officer Grandstaff, of the Dallas County Sheriff’s Department, conducted a public auction sale of the property on September 6, 1977. The property was struck off to Hillkee Corporation, the high bidder. Hillkee was also high bidder on several other parcels offered for sale at that time, and on completion of all the sales it delivered to Grandstaff a check for the total purchase price of all the parcels it had purchased. As Hillkee was a frequent purchaser at such sales and had dealt with the sheriff’s department on many other occasions, Grandstaff accepted Hillkee’s check in payment of the purchases. Officer Grandstaff did not have the Sheriff’s Deeds ready at the time of the sale, so Hillkee’s representative made arrangements to obtain them the following day, September 7, 1977. On that day, however, Harrell obtained a temporary restraining order from the 14th District Court of Dallas County restraining the sheriff from delivering a deed to Hillkee for the property in question, or from paying the proceeds of the sale to the state comptroller. The temporary restraining order was issued in response to Harrell’s allegations that certain irregularities occurred in the sale proceedings and that the price bid by Hillkee was grossly inadequate. Harrell thereafter filed an amended pleading which abandoned any plea for injunctive relief and rather sought a judgment that the purported sale was incomplete and a nullity because no payment in cash had been made and no sheriff’s deed had been delivered. It also alleged that the underlying judgment had been paid on September 9, 1977, two days after the sale. No attack was made upon the validity of the state’s judgment or the process as issued from the Travis County District Court. As far as the record reveals, no temporary injunction was issued, and the case was tried on its merits to the court on October 13, 1977, after which the court entered judgment decreeing that “. . . the Sheriff’s sale held on September 6, 1977 ... is hereby set aside and held for naught.”

Hillkee contends that the court had no jurisdiction to render the judgment. We agree.

Actions in equity to set aside an execution sale must be brought in the court out of which the writ was issued, even though the validity of the judgment itself is not questioned. Bender v. Damon, 72 Tex. 92, 9 S.W. 747 (1888); Rankin v. Carpenter, 568 S.W.2d 198 (Tex.Civ.App. Tyler 1978, no writ); Ross v. Brown, 491 S.W.2d 690 (Tex.Civ.App. Tyler 1973, writ ref’d n. r. e.); Sharp v. Yniguez, 324 S.W.2d 291 (Tex.Civ.App. Amarillo 1959, no writ); Houghton v. Rice, 15 Tex.Civ.App. 561, 40 S.W. 1057 (1897, no writ); Wilson v. Aultman & Taylor Co., 39 S.W. 1103 (Tex.Civ.App. 1897, no writ); 24 Tex.Jur.2d, Executions, Sec. 147, p. 618. The requirement is jurisdictional. Sharp v. Yniguez, supra. As the judgment was rendered in the District Court of Travis County and the execution issued therefrom, that court had the exclusive jurisdiction to set the sale aside.

Harrell argues that the execution sale was incomplete, and because he sought and obtained a temporary restraining order against delivery of the sheriff’s deed, the district court of Dallas County had jurisdiction. Article 4656 and Subd. 17 of Article 1995, Tex.Rev.Civ.Stat.Ann., provide that suits to enjoin the execution of a judgment must be tried in the court where the judgment was rendered, but those provisions apply only to suits attacking the judgment, questioning its validity, or presenting defenses properly connected with the suit in which it was rendered, and which should have been adjudicated therein. They do not apply to actions which, without questioning the judgment or the propriety of the writ, seek to restrain a levy on or sale of property under execution, either because the property is not subject to the judgment or because the attempted levy has not complied with the statutes. Carey v. Looney, 113 Tex. 93, 251 S.W. 1040 (1923); Blanket State Bank v. Redwine, 77 S.W.2d 558 (Tex.Civ.App. Eastland 1934, no writ); Thomason v. Sherrill, 47 S.W.2d 865 (Tex.Civ.App. Eastland 1932, no writ); Van Slyck v. Dallas Bank & Trust Co., 45 S.W.2d 641 (Tex.Civ.App. Dallas 1931, no writ); Melton v. American Surety Co., 240 S.W. 574 (Tex.Civ.App. Austin 1922, writ ref’d); Adoue v. Wettermark, 22 Tex.Civ.App. 545, 55 S.W. 511 (1900), writ dism’d w. o. j., 94 Tex. 81, 58 S.W. 722 (1900); 1 McDonald’s, Texas Civil Practice, See. 4.25.1, pp. 506, 507; 24 Tex.Jur.2d, Executions, Sec. 85, pp. 554, 555. Consequently, the district court of Dallas County would have had jurisdiction to enjoin the sale if proper reasons existed for doing so. But this appeal is not from an order enjoining the sale. As far as the record before us reveals, no injunction was ever issued. The temporary restraining order of September 7, unless extended, expired on September 17. See Tex.R.Civ.P. 680. The record reveals no such extension, but even if the order had been extended, when Harrell proceeded to trial and secured a judgment setting aside the sale, the injunction question became moot and passed out of the case. The only action of the district court which is before us is the judgment setting aside the sale of September 6. Such a judgment was improper because the court lacked jurisdiction to enter it.

Harrell’s brief asserts several equitable grounds for setting the sale aside, including a grossly inadequate price, the payment of the underlying judgment, and a prompt offer to make the purchaser whole. But these issues must be determined by an action filed in the District Court of Travis County where the judgment was rendered and the writ of execution was issued.

The judgment of the trial court is reversed and the cause of action is dismissed.