author: GODDARD, Judge.

text:
    Linda Carriger DILLOW, Respondent-Appellant, v. Tommy Roger DILLOW, Petitioner-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 13, 1978.
    Certiorari Denied by Supreme Court Dec. 29, 1978.

      Robert D. Arnold, Johnson City, for respondent-appellant.
    John B. McKinnon, III, Johnson City, for petitioner-appellee.
   OPINION

GODDARD, Judge.

Linda Carriger Dillow, Respondent-Appellant, appeals an order of the Chancery Court for Washington County which modified the support and custody provisions of a divorce decree, and also forgave child support arrearage. By her assignments of error she insists that because there had not been a sufficient change in circumstance the Chancellor abused his discretion in modifying the decree.

The final decree for divorce was entered on August 26, 1977, after a hearing held on July 13. It recited that the parties had reached a property settlement agreement. The agreement, which was confirmed by the Court, provided, inter alia, the following: (1) the wife is to receive absolute custody of the parties’ two minor children, subject to specified visitation privileges by the husband, (2) the husband is prohibited from having the children in the company of Gail Lell (a lady with whom he was keeping company prior to the divorce and who he later married) or any of her children by previous marriages, (3) the husband should pay $250 per month as child support, which would be increased to $300 per month beginning July 16, 1978. On December 20, some four months after the decree was entered, Mr. Dillow filed the petition to modify.

Mr. Dillow, who is employed by Free Service Tire Company as a helicopter pilot, has a net income of $965.37 per month and he receives an additional $675 per year for service in the Army Reserve. Because of the demands of his full-time employer, there is some question whether he will be able to continue in the Reserves and continue to receive payment therefor. In any event, his income is substantially the same as when the divorce decree was entered.

He owes something over $11,000 and is reducing some of the obligations by monthly payments which total $258. Practically all of the debts, however, were either known to Mr. Dillow at the time he entered into the agreement or were within his contemplation and could have been ascertained by a cursory inquiry. In Long v. Long, 488 S.W.2d 729 (Tenn.App.1972), we held that a husband may not allege facts as constituting a change in circumstances if he was aware of those facts prior to the entry of the divorce decree.

It is true that circumstances have changed in that Mr. Dillow has remarried and is bearing some responsibility for the support of two of his present wife’s minor children, the support payments from their father being $100 a month, which amount is not regularly paid. With regard to the contention regarding his new family, obligations voluntarily assumed are not proper to be considered as changed circumstance to reduce - support payments otherwise owed. Further, Mr. Dillow’s testimony that he did not intend to marry his present wife at the time the divorce was granted is incredible in light of the proof that they both had a blood test one week before the hearing, the license was procured the day of the hearing, and they were married the next day, which was over a month before the divorce decree was entered.

In summary, insofar as the child support is concerned, we are of the opinion that in light of the foregoing there has not been sufficient change in circumstance to warrant changing a consent decree, and thus the Chancellor abused his discretion in modifying that portion of the decree.

With regard to the modification in custody, while we recognize that the Respondent bitterly opposes her children associating with the present Mrs. Dillow or her children, we are frank to say that the record before us does not contain any facts which would show association with her would be detrimental to the children. The strongest thing that could be said is that she has been married six times, and of course if this pattern continues the problem will be resolved in due course. In any event, we are of the opinion, even though, as above noted, we are satisfied Mr. Dillow intended to marry at the time the divorce was granted, that because the interests of the children are involved, his agreement regarding visitation should not be given as much weight as that regarding child support. We are of the further opinion that it is important for the children’s welfare that they have a meaningful relationship with their father and, consequently, it was proper for the Chancellor to modify the visitation privileges as he did.

With regard to the forgiveness of arrearages, which is a matter that also addresses itself to the sound discretion of the Chancellor, we find no abuse in view of Mr. Dillow’s considerable obligations, part of which were incurred by his former wife since their separation.

In our disposition of the foregoing, we are not unmindful of Mrs. Dillow’s insistence that because her husband was in contempt of court for failure to pay support payments previously ordered, he is not entitled to affirmative relief. In the first place there is no order adjudging him in contempt of court. Moreover, it is our opinion, even in those cases where a defendant has been adjudged guilty of contempt, that the court, in the exercise of its sound discretion, upon determining that a party does not have the present means to purge himself, should have the authority to grant relief.

For the foregoing reasons assignment of error number one is sustained and the original order of the Chancellor is reinstated as of January 10, 1978; assignments of error numbers two and three are overruled and the cause remanded to the Chancery Court for Washington County. The costs of appeal are adjudged against the Petitioner.

PARROTT, P. J. (E.S.), and FRANKS, J., concur.


source: Caselaw Access Project

author: DUNCAN, Judge.

license: Public Domain

text:
    Joe Lonnie BYRGE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 29, 1978.
    Certiorari Denied by Supreme Court Dec. 4, 1978.

      Donald B. Roe, Oak Ridge, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, James B. Scott, Dist. Atty. Gen., Michael Lawson, Asst. Dist. Atty. Gen., Clinton, for appellee.
   OPINION

DUNCAN, Judge.

This is an appeal from a judgment rendered by the Anderson County Criminal Court approving a jury verdict finding the appellant, Joe Lonnie Byrge, guilty of passing a forged instrument and fixing his punishment at not less than 3 nor more than 6 years in the state penitentiary.

In this appeal, the appellant has assigned errors challenging the evidence, the admission of fingerprint evidence, the questioning of a witness by a juror, and the admission of testimony regarding his identity. We find no error.

Appellant’s first assignment of . error, which alleges that the verdict is contrary to the law and the evidence, requires that we review the evidence.

Evidence presented at trial showed that a corporate payroll check drawn on the account of Wright Mining Company in the amount of $164.58, dated September 8, 1977, and signed by Tim Pratt and Charles Rutherford as officers of the corporation, had been stolen from the payee, Jerry Gouge. Gouge testified that he had received the check from Pratt, placed it in the glove compartment of his truck, and then had gone to work on an eight hour shift at the coal mine. He discovered that the check was missing after his work shift. He further testified that he had not endorsed the check and that the signature “Jerry Goyge,” purporting to be his, was not his signature. Gouge also testified that his name was misspelled in the signature, which is apparent even from a brief examination of the check.

Donnie Braden, an employee at the same mine, testified that he too had received a payroll check on September 8, 1977, and that it also had been stolen, along with his wallet and drivers license, while he was working. Braden further testified that the signature “Donnie Braden,” purporting to be his, had not been placed on the check by him.

Deborah Barnes, a cashier at the victimized store, testified that the check shown her in court had been initialed by her on the day that a man claiming to be Donnie Bra-den had presented it to her for payment. She identified the appellant as that man. Ms. Barnes further testified that the appellant had not represented himself to be the payee, Jerry Gouge; instead, he had stated that he was a friend, Donnie Braden, and was cashing the check for Jerry Gouge. She also testified that the appellant had presented identification purporting to be Jerry Gouge’s, and had claimed that he had no identification. Ms. Barnes was uncertain whether the appellant signed the name “Donnie Braden” in her presence, but was sure that he represented himself to be Donnie Braden.

Kenneth Caldwell, a criminal investigator for the district attorney’s office, testified that he had received the check in question from the store manager and kept it locked in his file until he sent it to the F.B.I. laboratory in Washington, D.C., for fingerprint analysis. He further testified that the check could not have been handled by the appellant at any time after he had received it from the store manager.

Martin McCoy, an employee of the sheriff’s office, testified that he had processed the appellant’s fingerprints in 1973, and had sent an inked fingerprint card to the F.B.I. laboratory in Washington, D.C. at that time.

An F.B.I. fingerprint expert, Richard Willett, testified that he ran several chemical tests for fingerprints on the check sent to him by Mr. Caldwell. He found two latent fingerprints on the check and compared those with the appellant’s inked fingerprint card on file with the F.B.I. Mr. Willett further testified that the fingerprints taken from the check matched the right index and middle finger inked prints on the fingerprint card bearing the appellant’s name. The total number of comparison points was 18, although Willett had listed only 12 on the large photo shown to the jury to help illustrate his testimony.

The evidence presented in this case is more than sufficient to support the appellant’s conviction for passing a forged instrument. The check had been stolen; the endorsements on the back of the check were shown to be false; the appellant was identified as the person who had cashed the check; he had represented himself to be Donnie Braden and claimed he was cashing the check for his friend, Jerry Gouge; and he had presented identification purporting to be that of Jerry Gouge. Clearly, the State proved beyond a reasonable doubt all of the elements necessary for a conviction for passing a forged instrument. See Clancy v. State, 521 S.W.2d 780 (Tenn.1975).

Under the first assignment, the appellant also complains about what he characterizes as the “presumption of guilt” arising from the possession of a forged instrument. He claims that the presumption of innocence afforded all defendants in a criminal case is overruled by the presumption arising from the possession of a forged instrument. We cannot agree with this contention. The use of inferences of guilty knowledge, in the absence of unexplained possession, in cases involving possession of forged instruments and other offenses is well established and constitutionally permissible. See Keebler v. State, 3 Tenn.Cr.App. 447, 463 S.W.2d 151 (1970); see also Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Bush v. State, 541 S.W.2d 391 (Tenn.1976); Armes v. State, 540 S.W.2d 279 (Tenn.Cr.App.1976). This assignment is overruled.

Appellant’s second assignment of error challenges the admission of fingerprint evidence. Under this assignment, the appellant argues, citing Crouch v. State, 498 S.W.2d 97 (Tenn.1973), that the State did not show when, where, or how his fingerprints could have been placed on the check.

We are dealing with a set of facts in the present case entirely different from those facts present in the Crouch case. In that case, the female defendant was convicted of robbery based solely on evidence that her thumbprint was on a note which had been presented by the male robber to the victim. There was no evidence to place the female at the scene of the crime, nor any other evidence to implicate her in the robbery. The Supreme Court held that that thumbprint evidence under those facts was insufficient to support her conviction. In the present case, the appellant’s fingerprints were but one piece of evidence linking him to this crime. He was identified as the person who passed the check, and obviously the evidence clearly indicates that he had no opportunity to impress his fingerprints on the check at any time other than in the interval between the check’s theft and when it was presented for payment.

The court did not err in allowing this fingerprint evidence to be admitted. We overrule this assignment.

Under his third assignment of error, the appellant questions the propriety of a juror addressing a question to Richard Willett, the F.B.I. expert witness, during the recross examination of that witness. The jur- or asked, “How many points of comparison do you need to be certain of an individual’s fingerprints?” The witness replied, “There is no set number. The fewest number that has ever been testified (sic) in the F.B.I. is seven. . . .” Prior to this question, the witness had testified extensively about the reasons for his conclusion that the latent prints on the check matched the inked prints on the appellant’s fingerprint card. There was no objection to the juror’s question nor did counsel ask that the jury be excused in order to take up this matter with the trial court.

The appellant cites Branch v. State, 4 Tenn.Cr.App. 164, 469 S.W.2d 533 (1969), for the proposition that “permitt[ing] jurors to ask questions is (a perilous practice which trial courts should scrupulously avoid).” We do not disagree with the general tenor of this dictum found in the Branch case, but we venture further to say that each case must be judged on its own facts in determining whether error has been committed. In the present case, we find no error. Here the juror asked the question without warning or prior approval of the trial court and asked only one question. Clearly, this situation was unlike that which developed in Branch v. State, supra, where several jurors, with the court’s permission, questioned the defendant, Branch, while he was on the stand testifying in his own behalf. There was no comparable situation in this case. Also, we would point out that the Branch case was reversed for reasons other than the complaint about the jurors’ questioning of the defendant.

Even if any error could be said to be present, it is harmless within the context of the facts and circumstances of the present case. T.C.A. § 27-117. We overrule this assignment.

Appellant’s last assignment questions the reliability of the store cashier’s identification of him as the person who cashed the check. He bases this assignment on conflicting statements made by the witness, Deborah Barnes, at the preliminary hearing and in her testimony at trial. At the preliminary hearing she had testified that she was “pretty sure it is this guy,” while at the trial she was more positive in her identification of the appellant as the perpetrator. The appellant also questions contradictions in that portion of Ms. Barnes’ testimony regarding the type of drivers license shown to her by the person who had cashed the check.

The identity of the defendant as the person who committed the offense for which he is on trial is a question of fact for the determination of the jury, upon consideration of all the competent proof. White v. State, 533 S.W.2d 735 (Tenn.Cr.App.1975). Moreover, the weight and credibility of testimony of a witness, and the reconciliation of conflicts in testimony, are matters entrusted exclusively to the jury as the triers of fact. Withers v. State, 523 S.W.2d 364 (Tenn.Cr.App.1975).

The appellant’s assignments of error are overruled and the judgment of the trial court is affirmed.

WALKER, Judge, and ARTHUR C. FA-QUIN, Jr., Special Judge, concur.


author: ROBERTS, Judge. DOUGLAS, Judge,

text:
    David Travis CLELAND, Appellant, v. The STATE of Texas, Appellee.
    No. 54100.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 12, 1978.
    Dissenting Opinion On State’s Motion For Rehearing Denied Jan. 24, 1979.
    Antonia M. L-fngversen, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Timothy P. Alecander, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for robbery. After a trial by jury, the trial judge assessed the appellant’s punishment at fifteen years’ confinement in the Texas Department of Corrections.

The record reflects that the appellant sprayed mace in the eyes of the manager of a service station in Houston and took money from the cash register in the station. The appellant was apprehended fleeing from the scene of the crime.

At the outset, we are confronted with fundamental error in the charge which dictates that we reverse the judgment.

V.T.C.A., Penal Code, Section 29.02(a) states:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.”

In the present case the indictment stated in pertinent part that on July 26, 1974, the appellant

“while in the course of committing theft of money owned by Stephanie Wolff, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly cause bodily injury to the Complainant.”

It is clear that the indictment alleged that the appellant committed robbery under V.T.C.A., Penal Code, Section 29.02(a)(1), by alleging that the appellant intentionally and knowingly caused bodily injury to the complainant.

The pertinent portion of the trial judge’s charge stated:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 26th day of July, A.D. 1974, in Harris County, Texas, the defendant, David Travis Cleland, did, without the effective consent of Stephanie Wolff, the owner, take and exercise control over the corporeal personal property of Stephanie Wolff, to wit, money, from the possession of Stephanie Wolff, with intent then and there to deprive Stephanie Wolff of said money, and that the said defendant, in so doing, and with intent to acquire and maintain control of said money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, then you will find the defendant guilty of robbery as charged in the indictment.
“Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant.”

It is clear that the charge authorized a conviction for robbery under V.T.C.A., Penal Code, Section 29.02(a)(1), if the jury found, among other things, that the appellant intentionally and knowingly caused bodily injury to Stephanie Wolff. However, it is equally clear that the charge also authorized a conviction for robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), if the jury found, among other things, that the appellant intentionally or knowingly threatened or placed Stephanie Wolff in fear of imminent bodily injury or death. Thus, the charge authorized the jury to convict the appellant on two theories when only one was alleged in the indictment.

In Robinson v. State, 553 S.W.2d 871 (Tex.Cr.App.1977), the indictment alleged that the defendant had committed robbery under V.T.C.A., Penal Code, Section 29.-02(a)(2) and further alleged that the robbery was aggravated under V.T.C.A., Penal Code, Section 29.03(a)(2). However, the charge in Robinson authorized the jury to convict the defendant under every conceivable theory under V.T.C.A., Penal Code, Sections 29.02(a) and 29.03(a). We there stated:

“While the charge authorized a conviction upon the theory alleged in the indictment, it also authorized a conviction upon every other conceivable theory under Sec. 29.02 and Sec. 29.03 which was not alleged in the indictment. We conclude that fundamental error is reflected and the conviction . . must be reversed.” Id. at 375.

See also Davis v. State, 557 S.W.2d 303 (Tex.Cr.App. 1977); Dowden v. State, 537 S.W.2d 5 (Tex.Cr.App. 1976).

In the present case, the charge authorized the jury to convict the appellant on a theory not alleged in the indictment. This was fundamental error.

The judgment is reversed and the cause remanded.

VOLLERS, J., dissents.

Before the court en banc.

DOUGLAS, Judge,

dissenting on State’s motion for rehearing.

On original submission, without an objection to the charge presented to the court and without a brief filed in the trial court calling the court’s attention to any error in the court’s charge, the Court reversed this cause on fundamental error.

The error was not reversible in 1976. Such an error in the charge was held not to be reversible error by all members of the Court in Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976). Williams was charged with robbery by intentionally and knowingly threatening and placing another in fear of imminent bodily injury and death. The court charged the jury to convict if it found that Williams threatened or caused bodily injury just as the charge in the present case did. This Court recognized that a theory not charged in the indictment was submitted to the jury and that it was erroneous in that respect. The Court held: “In the circumstances presented by the facts of this case we hold the giving of the erroneous charge was not reversible error. Article 36.19, V.A.C.C.P.”

Article 36.19, V.A.C.C.P., should be applied in the present case because the same principle applies in both cases. It provides, in part, that where

“. . . any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial.

The indictment alleged that appellant knowingly committed bodily injury during the course of a robbery. The charge submitted to the jury authorized conviction if the jury found that appellant intentionally, knowingly or recklessly caused bodily injury or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death.

All the evidence is direct that he caused bodily injury intentionally and knowingly. There is no evidence that he threatened her with bodily injury or death. He just caused bodily injury.

Let us look to the record to see if this was such an error that was calculated to injure the rights of the appellant or prevented him from having a fair and impartial trial.

On the day in question, appellant stood by the Conoco Service Station at the 6600 block of South Main in Houston near a taxicab stand for about and hour and forty minutes. He told the operator of the station, Stephanie Wolff, that he had been there that long. He had a bandage around his head and as she was working he walked behind her and said, “Look here,” and sprayed mace in her eyes. He then grabbed the cash drawer and she knocked the money out of his hand. He headed toward the Tides Hotel. As she followed, the mace blinded her and she fell down. She testified that the mace impaired her vision, that her eyes puffed up and that she could see momentarily after the mace hit her eyes but they completely closed and she lost her sight temporarily. She stated that they smarted an awful lot, that some people came by and flushed her eyes out with a water hose. In the meantime she was hollering, “robbery, robbery,” and the two men nearby caught the appellant and brought him back to the service station.

Raymond L. Foster, a seventeen-year-old senior of Kashmere High School working as a porter at the Tides II Motor Inn on South Main in Houston, heard Stephanie Wolff calling for help and he, along with another, started chasing appellant. They caught him, and as they raised up his shirt, the bandage that he had had on his head had fallen out. They found a gun on his person. The mace was wrapped up in the bandage that fell out when his shirt was raised. He identified appellant as the one he caught.

An officer who came and took appellant into custody testified that he took the items, the mace, bandage and the gun which turned out to be a replica of a .357 Magnum gun and that it was not a toy but had moving parts and looked like that type of gun.

The jury found appellant guilty and the judge assessed punishment at fifteen years. The court had before it at the punishment hearing a record of probation that he had granted appellant and the record shows that he had been convicted for other offenses and had a list of other places that he apparently intended to rob. Appellant testified that he had been convicted for a felony in Virginia in 1953, had been convicted in New Jersey for a separate felony in 1947 and had been placed on probation. He had in his possession a notebook which listed a group of service stations, and he explained, “Those things that are written there I was trying to make up my mind where to get enough money to pay the rent. I made those as my choices.” He stated that he was going to pick one of these places to rob.

With this record, it cannot be said that the judge assessed a punishment that was too severe.

Could the jury have been misled when the court instructed that they should convict appellant if they found that appellant “intentionally, knowingly or recklessly cause bodily injury to said owner, or intentionally, or knowingly threaten or place said owner in fear of imminent bodily injury or death”?

Judge Dally wrote the Williams case for the Court and stated that it was highly unlikely that the jury was misled because there was no evidence that the complainant in that case received any bodily injury (the theory not alleged in the indictment). We should not change the rules at this stage.

During the past two years, a majority of this Court has become quite benevolent. With the trend being established by the “fundamental error” rule, there should be no need for defense counsel because a majority will search the record to see if it would have tried the case, with the benefit of its hindsight, as the trial court and defense counsel tried it. A cursory inspection shows that there has been more fundamental error according to a majority of this Court during the last three years than during the rest of the time there has been a Texas, including the time that it was a Republic.

During the history of Texas, our Courts have been known by many names. Now we have a “fundamental error” court.

From the holdings of the majority, a case will be reversed if there is some error even though such an error is beneficial to a defendant. See Brewer v. State, 572 S.W.2d 940 (1978), and the dissenting opinion on the denial of leave to file the State’s motion for rehearing). This decision is contrary to Article 36.19, V.A.C.C.P., which provides that a case should not be reversed for an error in the court’s charge unless such “error appearing from the record was calculated to injure the rights of a defendant, or unless it appearing] from the record that the defendant has not had a fair and impartial trial.” (Emphasis added).

The hundreds of cases reversed for fundamental error during the last two years by a majority of the Court would apparently mean that there has been a change in this Court or that the trial courts are less able to try cases than they have ever been in the history of Texas. In the past, objections have been required and a ruling of the court obtained before cases have been reversed. Heretofore, the trial judge has been put on notice that counsel is contending that there has been some error. When this is done, a trial judge has a chance to correct the error whether it be beneficial to a defendant or whether it be some error in form.

Ordinarily, errors in a charge to a jury cause a defendant less harm than errors in admitting evidence. This Court holds that, if a defendant fails to object in the trial court to an alleged illegally taken confession in violation of the Fifth Amendment to the Constitution of the United States, the error is waived. Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973); Crawford v. State, 480 S.W.2d 724 (Tex.Cr.App.1972). See Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974), and Moore v. State, 480 S.W.2d 728 (Tex.Cr.App.1972). See also Gibson v. State, 516 S.W.2d 406 (Tex.Cr.App.1974).

If a defendant fails to object to evidence obtained as a result of an illegal search in violation of the Fourth Amendment to the Constitution of the United States, this Court holds that such error is waived. Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976); Milligan v. State, 465 S.W.2d 157 (Tex.Cr.App.1971).

Other violations of constitutional rights may be waived unless there is an objection in the trial court, such as one being tried in jail clothes. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), and Williams v. State, 477 S.W.2d 24 (Tex.Cr.App.1972). See also Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), and Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977), where this Court wrote: “This Court has consistently held that in order to complain of denial of a federally guaranteed constitutional rights, there must be an objection in the trial court. . . .” If all the above rights and others which can be harmful to a defendant, if violated, can be waived absent an objection, why cannot an error in form regarding charges be waived?

Fundamental error is increasing by a majority of this Court by geometric progression. See Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976), which was reversed and the prosecution ordered dismissed on “fundamental error.” The indictment alleged that Reynolds stole the property from the complaining witness, but did not allege that it was taken without his effective consent. Hundreds of cases based upon Reynolds have been reversed and the prosecutions ordered dismissed. See also Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976). See Bouie v. State ,528 S.W.2d 587 (Tex.Cr.App.1975).

We should follow the statutes: Articles 36.14 and 36.19, V.A.C.C.P., require that an objection to the court’s charge be made at the time of the trial before the matter will be reviewed. Article 36.19, V.A.C.C.P., requires that there must be an error calculated to injure the rights of a defendant before there is a reversal. The majority holds exactly opposite from the provisions of these articles. Good judges from 1913 until now have followed Article 36.19 and its predecessors.

In Echols v. State, 75 Tex.Cr.R. 369, 170 S.W. 786 (1914), the construction of the statute is correct. The Court wrote:

“It is just such cases as this that caused the Legislature to amend old article 723, now 743, of the Code of Criminal Procedure, and provide that the errors in the charge should not be cause for reversal, unless objected to when presented t,o counsel for their inspection. Errors of the character now complained of in the charge were under the old law raised in the motion for a new trial, and this court, because of such matters, felt impelled to reverse the case. The Legislature desired to correct what it considered an evil, and said this court should not reverse under such circumstances, and should not consider such grounds on appeal when the trial court’s attention was not called to such matters before the charge was read to the jury. . . . ”

In Wright v. State, 73 Tex.Cr.R. 178, 163 S.W. 976 (1914), the Court held that the statute required an exception to the charge at the time of the trial and wrote:

“. . . So it is clear that the intent and purpose of the Legislature is that we should not reverse a case because of error in the charge, if error there be, unless it was excepted to at the time of the trial, and not then unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. . ” (Emphasis added).

Other cases have followed this construction of the statute until a majority without overruling those cases has found many errors in the court’s charge to be fundamental without considering its harmful effect, if any. When a dear friend or a well established rule for so many years has departed, the proper respect should be paid. A researcher looking to the citator to see if a case has been followed or overruled should be able to determine it without reading every case written by this Court on a subject prior to their publication. If the cases from 1913 to the present were well reasoned then, there should be at least some attempted reasons given for not following them. This writer hates to see the departure of the departed without proper services.

It is hard to understand how all of those able judges in the past could have misconstrued Article 36.19 for all those years.

This Court as now constituted should realize that there are practically no cases that are antiseptically clean, and that error should be harmful before a case is reversed.

In the present case it should be assumed that the jurors who found appellant guilty were not stupid (just like the earlier judges were not stupid). The jurors heard the evidence and knew that there was no evidence of a threat, but only evidence that the complaining witness was injured by the mace sprayed in her eyes. They could not have been misled by the court’s charge,

No reversible error has been shown. The motion for rehearing should be granted and the cause should be affirmed.

W. C. DAVIS, J., joins in this dissent.


author: WILLIAM J. CORNELIUS, Commissioner.

text:
    Willie Lee KIRVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 56759.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Dec. 20, 1978.

      Alfonzo R. Greenidge, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum and Reed Prospere, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

WILLIAM J. CORNELIUS, Commissioner.

The conviction was for burglary of a habitation with the intent to commit sexual abuse of a child. Punishment was set by the jury at ninety-nine years’ confinement.

The State’s version of the evidence revealed that Apolonio Buenrostro and his wife, Juanita, left their home in Dallas on December 3, 1975, to visit a relative and were gone for some fifteen to twenty minutes. Their four children were left at home. While Mr. and Mrs. Buenrostro were away, a black man wearing a wig, glasses and a dark leather jacket entered their home through the back door. He looked around briefly, then went to the kitchen and got some grease from a skillet, rubbed it on his genitals and got on top of Maria Buenrostro, one of the children. Medical testimony indicated that an attempt at penetration or actual penetration of Maria’s anus had been made. Some four weeks later when the Buenrostro family was at a washateria in northeast Dallas, the children saw and recognized appellant. They pointed him out as the perpetrator of the offense and they later also identified appellant from a group of photographs which were shown them by the Dallas Police Department. Appellant was also identified in court by Ysaias Buenrostro and Maria Buenrostro.

The first complaint on appeal is of the trial court’s action in allowing Mrs. Buenrostro to testify to out of court statements made by her children that appellant was the man who entered their home and abused Maria. The statements were made by the children when the family had gone to the washateria near their home and the children saw appellant there using a telephone.

The statements of the children at the washateria were hearsay and were too remote from the offense to come within the res gestae exception to the hearsay rule. However, Mr. Buenrostro was later allowed to testify to the same statements without objection. In fact, appellant’s counsel proceeded to develop the evidence in even more detail on his cross-examination of Mr. Buen-rostro. Where testimony is admitted erroneously over objection and the same testimony or testimony to the same effect is thereafter admitted without objection, the objection in the first instance is waived. Davis v. State, 516 S.W.2d 157 (Tex.Cr.App.1974); East v. State, 420 S.W.2d 414 (Tex.Cr.App.1967); Lockhart v. State, 171 Tex.Cr.R. 648, 352 S.W.2d 749 (1961); and Mershon v. State, 142 Tex.Cr.R. 575, 155 S.W.2d 372 (1941).

Grounds of error two and three assert that reversible error was committed when the following occurred on the State’s cross-examination of the defense witness Kevin Lockridge:

“Q And you’re not down here this morning just to be testifying, are you?
A No.
Q You’re down here for another reason, aren’t you?
A Yes.
Q Will you tell the jury what it is?
A To receive probation.
Q On what case?
A On a burglary case.
Q Is that the same burglary case that he pled on?
A Yes.
DEFENSE COUNSEL: We object to the line of questioning as being improper impeachment of the witness, Your Honor.
THE COURT: Well, I’ll overrule the objection.”

It is contended that the foregoing constituted improper impeachment of the witness, and also that it erroneously allowed evidence of an extraneous offense on the part of the appellant to be placed before the jury.

The objection concerning improper impeachment was properly overruled. A witness may be impeached by showing that he has been finally convicted of a felony or a misdemeanor involving moral turpitude, or has been given a suspended sentence which has not been set aside, or has been given probation which has not expired. Tex.Code Crim.Proc.Ann. art. 38.29; Nichols v. State, 494 S.W.2d 830 (Tex.Cr.App.1973). Proof of such a conviction may be elicited by questions designed to secure an admission on the part of the witness. Nichols v. State, supra; Johnson v. State, 453 S.W.2d 828 (Tex.Cr.App.1970). The testimony by the witness here that he was at the courthouse that day to receive probation in a burglary conviction was sufficient proof of the nature of the conviction and that it was not too remote in time.

Appellant did not object to the questions and answers on the ground that they wrongfully injected into evidence an extraneous offense on the part of the appellant. The only objection to the entire colloquy was that it was improper impeachment of the witness Lockridge. In that circumstance reversible error is not shown.

In grounds of error four and five appellant urges that the evidence is not sufficient to support the conviction because there was no direct proof of a lack of consent to his entry of the home. These grounds are based upon a number of decisions which hold that when the owner or a person in control of a house testifies at the trial, circumstantial evidence of lack of consent to the entry is not sufficient, but direct proof of that fact must be made by the owner. See, for example, Stallworth v. State, 167 Tex.Cr.R. 19, 316 S.W.2d 417 (1958), and cases there cited. But in Taylor v. State, 508 S.W.2d 393 (Tex.Cr.App.1974), this Court overruled the previous cases and held that, even when the owner testifies but does not specifically negate consent to entry, lack of consent may be proved by circumstantial evidence. In the present case Mr. Buenrostro testified personally and did not expressly negate consent to entry. But from other evidence in the record it is shown that neither Mr. Buenrostro nor Mrs. Buenrostro was at home on the occasion in question and that neither of them nor any other member of the family had ever known or even seen the appellant previously. Such evidence, considered with the other circumstances proven, is ample to support a conclusion of lack of effective consent to the entry.

All of appellant’s grounds of error have been carefully considered and are overruled.

The judgment is affirmed.

Opinion approved by the panel.


author: MASSEY, Chief Justice.

text:
    TEXAS ELECTRIC SERVICE COMPANY, Appellant, v. Carl L. NIX et ux., Appellees.
    No. 18011.
    Court of Civil Appeals of Texas, Fort Worth.
    Oct. 26, 1978.
    Opinion on Motion for Rehearing Dec. 14, 1978.
    Rehearing Denied Jan. 11, 1979.
    Cantey, Hanger, Gooch, Munn & Collins, and S. G. Johndroe III, Fort Worth, for appellant.

      McMillan & Lewellen, and Garry Lewel-len, Stephenville, for appellees.
   OPINION

MASSEY, Chief Justice.

In this condemnation case we conclude that a certain jury finding was so contrary to the greater weight and preponderance of the evidence as to be clearly erroneous; that, as a result, the jury finding upon a value of a 5 acre strip of farm land condemned for railroad trackage was excessive. The consequence is a necessity to reverse the judgment and remand the entire case for another trial.

Carl L. Nix and his wife, hereinafter termed condemnees, were the owners of a 186.5 acre farm across which the 5 acres was condemned as a strip running from north to south. Texas Electric Service Company was condemnor, and hereinafter will be so termed.'

After the taking of the 5 acre strip under condemnation proceedings, condemnees’ farm consisted of two land parcels in that part of it lay to the east of the railroad tracks and part to the west. The circumstances shown were such as to justify our conclusion that the value of the remaining 181 plus acreage comprising the farm was diminished in a per-acre value below its worth by the per-acre value before the condemnation. The strip condemned was across the portion of the farm devoted to the raising of peanuts. The acreage so devoted totaled 70 acres. Though the value of the 70 acres for peanut production was proved to have been greater than most if not all the farms in the county where con-demnees’ land was located there was not a valuation by any witness of that portion considered apart from the remainder of the farm. Other acreage in the farm was used for different agricultural and grazing purposes.

The troublesome circumstances are these: (a) by the jury findings the 181 remaining acres were valued on the identical per-acre basis as the 5 acres condemned, being at $1,250.00 per acre multiplied by the number of acres involved; (b) the 5 acres, though improved by terracing and cultivation, had no structural improvements located thereon as well as improvements by terracing and cultivation; (c) the record wholly lacks evidence bearing upon the dollar value of the structural improvements shown as existent on the 181 acres either as considered separate from the surface value or as considered as an enhancement in value thereof, and (d) the evidence showed that these improvements had substantial value in that among them was the modern brick residence (of 1,650 square feet) used by the condemnees, a two-bedroom frame dwelling rented to tenants, and a barn.

If the $6,250.00 value found by the jury (at $1,250.00 per acre) of the 5 acres condemned should be deemed correct the $226,-875.00 value found by the jury (at $1,250.00 per acre) as that of the 181 acre remainder was too low. If the $226,875.00 value found on the 181 acres was correct then the value found of the 5 acres, $6,250.00, was too high. We deem the $226,875.00 finding not to have been erroneous (in other words, by the evidence, we do not find the value to have been excessive as the condemnor contends) and therefore we consider ourselves bound by that jury finding. Among other reasons it is fixed and certain is because the eondemnee has no cross-point contending the value found to have been too low. By the condemnees’ commitment upon the propriety of that value finding of the 181 acres then, by the evidence, the finding that the 5 acres was worth $6,250.00 was in our opinion excessive. This is a consequence because to attribute to it the same value on a per acre basis (the $1,250.00 per acre) when it had no structural improvements would be to exhibit the jury finding as so contrary to the greater weight and preponderance of the whole of the evidence in the record as to be clearly erroneous. The contention is presented as a premise for reversal by the condemnor’s point that there was an insufficiency of evidence to support the jury finding.

We do not consider any of the complaints made by condemnor in other of its points of error to have presented reversible error. They are overruled for that reason.

However, because there will be necessity of retrial we will write upon one of the contentions of condemnor. The complaint is of the trial court’s reception of evidence from condemnees’ value expert witness upon comparable sales. On these sales, allegedly comparable, the witness had testified to the necessity, in each instance, to make them properly comparable would require some sort of “adjustment”. The necessity was because there was no farm in the locality to be found on the market which was as good for the production of peanuts as that of appellees, had similar improvements lending to preservation of the agricultural integrity of the land, etc. What the witness seems to have done was to apply an increase in value of the con-demnee’s land in proportion to its greater productivity above the amount brought by land treated as comparable, to take into consideration the improvements by way of the terracing of condemnees’ land, with a resultant enhancement in value, etc.

An expert’s value testimony is admitted because he is qualified as an expert. Evidence from him concerning actual market sales, as bearing upon ultimate market value issues, constitute a reinforcement of his testimony upon value of the property immediately in issue. An ultimate issue market value opinion figure in dollars and cents which is backed up by an evident knowledge of actual market sales in close vicinity to, or adjoining if possible, to the subject property is very effective and persuasive as to value before the jury. Rayburn, Texas Law of Condemnation, p. 382, § 117, “Market Sales, Comparative Market Values”. The determination of whether there truly is comparability will vary with each particular fact situation and where there is objection by an opposing party that any particular sale represented to be comparable is not so qualified that it may be received for the purpose requires the trial judge to determine whether there has been the qualification entitling the witness to testify concerning it. In passing upon the admissibility of such evidence as shedding light upon the value of the land which is in controversy the trial court must be granted a wide discretion. His action, whether it be such as occasions exclusion or admission of the evidence, will not be disturbed unless an abuse of discretion is shown. Southwestern Bell Tel. Co. v. Ramsey, 542 S.W.2d 466, 476 (Tex.Civ.App.—Tyler 1976, no writ history), citing numerous other no writ history cases in which there have been similar expressions upon the law.

The judgment is reversed, with the cause remanded for another trial.

OPINION ON MOTION FOR REHEARING

Judgment rendered October 26, 1978 is set aside, but not our opinion delivered the same date.

On the Nix’s Motion for Rehearing was request that there be deletion from the total award by the trial court’s judgment, on November 3, 1977, that calculable amount which would be the maximum which could be in dispute relative to the value of the 5 acre strip condemned. There was voluntary tender thereof with request that our judgment be one of affirmance of that of the trial court as thus reduced. In other words, Nix wants whatever judgment there might be upon taking the figure of $117,975.00, (the trial court’s award as diminished value of the Nix 181.5 acres, which will be retained in its damaged condition), plus that value which the most favorable evidence to Texas Electric would permit value reduction of the 5 acres condemned; then, the two figures added together made the final judgment. By reference to the record the most favorable evidence as applied to Texas Electric Service Company’s position is found in the testimony of Gary Luker, condemnor’s value witness. $2,950.00 is the minimum amount proper to have been found by the jury as damages flowing from condemnation of the 5 acres.

To add together $117,975.00 and $2,950.00 results in the total of $120,925.00 (the judgment of the trial court was for the total amount of $124,225.00, plus interest and costs). Thus, the amount of remittitur tendered was $3,300.00 (and the interest on such amount as calculable from the trial court’s judgment), along with prayer that the judgment be reduced to $120,925.00, plus interest and costs.

We deem the situation in this case one in which we should not have found excess in the judgment, nor one in which the $3,300.00 fitted the term “excess” as usual to a judgment as applied to which an appellate court might make a suggestion of re-mittitur. The question was considered at time of our original judgment and opinion; nothing whatever was stated in the opinion bearing upon remittitur.

However, certainly there is nothing which inhibits the tender of a remittitur by' a plaintiff/appellee in the attempt to save the greater part of a judgment obtained in the trial court. Nix, in that posture and of his own volition, made the tender of remittitur upon representation that such removed any possible prejudice to Texas Electric Service Company so that no greater amount would be adjudged its liability than it had in effect conceded for purposes of compensation because of the 5 acres condemned.

A party to an appeal has the right to remit part of the judgment in order to save vexatious expenses and prolonged litigation and to prevent a reversal. 4 (Part 2) Tex.Jur.2d, p. 568 “(Appeal & Error — Civil Cases)”, § 903 “(Correction of Errors in Lower Court Judgment) — Remittitur”. Re-mittitur may be employed to cure the error of allowing consideration by the jury of an improper element of damages, or of an improper award of such an element, when the element is fixed in amount or when the maximum for the element can be ascertained with precision. 4 McDonald, Texas Civil Practice (1971 Rev.), p. 303, “New Trial”, § 18.22 “(Order — Remittitur)”. A condemnation case of similarity to this one, in which the question of remittitur was considered and deemed appropriate in curing error in the judgment was City of Dallas v. McLemee, 378 S.W.2d 393 (Tex.Civ.App.—Dallas 1964, no writ hist.). There the principle and its application was in accord with Texas Jurisprudence and Professor McDonald.

Resisting the Nix tender of remitti-tur, Texas Electric cites Texas Power & Light Company v. Lovinggood, 389 S.W.2d 712 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). On page 720 of the opinion in that case was written: “Since this appeal presents a case of prejudicial error in addition to excessiveness of the judgment, the error cannot be cured by remittitur.” The “other” prejudicial error to which there was reference was related to erroneous instructions given by the court in its charge to the jury, deemed by the appellate court to have amounted to reversible error. Properly analyzed the case supports the right of a plaintiff/appellee to have sustained the principal part of the judgment obtained in the trial court by means of remittitur and not Texas Electric Service Company.

Our holding is that by tender of the re-mittitur the judgment of the trial court in this case is subject to reformation, and, upon reformation may be affirmed.

Accordingly, in view of the remittitur the judgment of the trial court is reformed so as to provide in the place and stead of that portion awarding monetary recovery the following: “The defendants, Carl L. Nix and Joyce Nix, have and recover of and from Texas Electric Service Company the sum of $120,925.00 plus interest on the amount of $103,925.00 at the rate of 9% per annum from and after the 15th day of April, 1975, provided, however, that execution shall issue only on the amount of $103,-925.00 plus interest, being the excess of such award over and above the amount heretofore deposited to the credit of such defendants with the Clerk of this Court, plus all costs of this proceeding in the trial court.” As so reformed the judgment is affirmed.

Costs of appeal are adjudged as follows: 75% to be taxed against Texas Electric Service Company, appellant; 25% to be taxed against Carl L. Nix and Joyce Nix.


author: GUITTARD, Chief Justice.

text:
    Betty Carolyn Hendricks SUTTER, Appellant, v. Jerry Wayne HENDRICKS, Appellee.
    No. 19634.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 31, 1978.
    Rehearing Denied Nov. 28, 1978.

      James F. Newth, Dallas, for appellant.
    Aubyn K. Shettle, Jr., Dallas, for appel-lee.
   GUITTARD, Chief Justice.

Betty Sutter appeals from an order removing her as managing conservator of four children and appointing her former husband, Jerry Hendricks, as managing conservator. The order is based on jury findings that a material change of circumstances has occurred since the divorce decree and that consideration of the best interests of each child requires that Jerry Hendricks be appointed managing conservator. Appellant complains of failure of the judge to instruct the jury in the terms of section 14.08(c)(1) of the Texas Family Code (Vernon Supp.1978) that a material change of circumstances must be such that “the appointment of a new managing conservator would be a positive improvement for the child.” We hold that the court’s failure to include this element in the charge was prejudicial error. Consequently, we reverse and remand for new trial.

Section 14.08(c) provides:

After a hearing, the court may modify an order or portion of a decree that:
(1) designates a managing conservator if the circumstances of the child or parent have so materially and substantially changed since the entry of the order or decree to be modified that the retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of the new managing conservator would be a positive improvement for the child; . ” [Emphasis added]

The charge in the present case contains the following instructions:

Material and Substantial Change in Circumstances :
A. In connection with your answer to this Issue, you are instructed that a material change of circumstances means a substantial change of circumstances demonstrative of one party’s improved condition or fitness as a Managing Conservator, or, on the other hand, any substantial change of circumstances, demonstrative of the fact that one party is less well-fitted or situated as a Managing Conservator, or any substantial change of circumstances affecting the welfare and best interests of the minor child.
B. In connection with the special issues, you are instructed that not every change in condition, occurring since the decree awarding custody of said child was made, justifies or requires the modification or change of the former decree, but that such changed conditions, if any, must be of a material nature and such as would affect the welfare and best interests of said child as his welfare and interests existed at the time of the original decree, and such changed conditions, if any, must be of such a nature that to leave the custody of the child as previously decreed would be detrimental and injurious to the child’s welfare.

In her objections to the charge, appellant called the court’s attention to section 14.-08(c) and stated:

But the second part of that Statute requires that before a managing conservator — before there can be a change of managing conservator, a jury must find that the new managing conservator would be a positive improvement for the children. Now nowhere in our instructions is there a finding that the new managing conservator would be a positive improvement for the child or children.

Appellee contends that the element of positive improvement was covered by the court’s instructions concerning change in circumstances when taken in connection with the rest of the charge, which contained also the following:

The best interests of the child shall always be your primary consideration in answering the Issues, though you shall consider the circumstances of each parent.

We conclude that the element of positive improvement for the children by a change of managing conservatorship is essential to a finding of material change of circumstances and that this element must be brought to the jury’s attention affirmatively by an instruction accompanying the change-of-circumstances issue. It is not sufficient to instruct the jury to consider the child’s best interests. Neither is it sufficient to instruct that such a change must be one demonstrating that to leave the custody as previously decreed would be detrimental and injurious to the child’s welfare. The jury might well believe that to leave custody with the mother would be detrimental, but that a change to the father would be no better. Because a change of custody disrupts the child’s living arrangements and the channels of a child’s affections, a change should be ordered only when the trial court is convinced that the change would be a positive improvement. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790 (1955); Bush v. Cooley, 561 S.W.2d 606, 607 (Tex.Civ.App.—Waco 1978, no writ). The movant must establish by a preponderance of the evidence both that retention of the present managing conservator would be injurious to the welfare of the child and that the appointment of a new managing conservator would be a positive improvement. Thompson v. Uzzell, 541 S.W.2d 499, 501 (Tex.Civ.App.—Tyler 1976, no writ); Davis v. Duke, 537 S.W.2d 519, 521 (Tex.Civ.App. —Austin 1976, no writ). Omission of either element materially reduces the burden on the movant. Consequently, when the change-of-circumstances issue is submitted to a jury, the court must instruct that both of these elements must be established before a “material and substantial change of circumstances” can be found.

Appellee argues that appellant waived its request for a special instruction on this matter because no such instruction was tendered in writing, and, alternatively, that the request was an “omitted issue” which was impliedly found in appellee’s favor. He relies on Rule 279, Texas Rules of Civil Procedure, which provides in part:

Failure to submit a definition or explanatory instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or explanatory instruction has been requested in writing and tendered by the party complaining of the judgment.

We recognize decisions holding that under Rule 279, if a court wholly fails to give a necessary explanatory instruction, the error is not preserved for appeal by an objection without requesting in writing an instruction in substantially correct wording. Great American Indemnity Co. v. Sams, 142 Tex. 121, 176 S.W.2d 312, 314 (1944). Under rule 274, however, an objection is sufficient to call the court’s attention to a defective definition or instruction. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944). If an instruction is given, but omits one of several necessary elements, it is a defective instruction, and the defect may properly be called to the court’s attention by an objection without requesting in writing a revised instruction including the omitted element. Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967); Yellow Cab and Baggage Company v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955).

Here an explanatory instruction was given concerning the facts necessary to establish a material and substantial change of circumstances, but it was defective in that it did not include the element of positive improvement by a change of managing conservators. This defect was clearly pointed out in appellant’s objection. Consequently, we hold that the objection was sufficient.

Neither can we uphold the judgment on the ground of an implied finding on an “omitted issue.” This question is governed by the last paragraph of rule 279, Texas Rules of Civil Procedure, which in certain cases, creates a presumption that an issue omitted without request or objection has been found in favor of the judgment. This provision is not applicable here because plaintiff did make a sufficient objection. Moreover, the element of positive improvement by a change of conservators was not a matter that would properly be submitted as a special issue, and appellant had no burden to request such an issue. Rather, it was an element of the change-of-circumstances issue, which should have been included in the instructions accompanying that issue. We cannot presume that the jury impliedly found this element in appellee’s favor if it was not included in the instructions accompanying the issue.

Since we hold that the court erred in this respect, we need not consider the sufficiency of the evidence to support the finding of a material change of circumstances, except to say that the testimony tending to show a material change was not compelling and that the evidence would have supported a contrary finding. Consequently, we cannot presume that the jury would have found a material change if a proper instruction had been given.

Reversed and remanded.


author: ROBERTSON, Justice.

text:
    Harry Lawrence MITCHELL, Appellant, v. Nancy Elizabeth MITCHELL, Appellee.
    No. 19635.
    Court of Civil Appeals of Texas, Dallas.
    Oct. 31, 1978.
    Linda S. Aland, Strother, Davis & Stanton, Dallas, for appellant.
    Michael T. Everett, Everett, Law & He-Lal, Dallas, for appellee.
   ROBERTSON, Justice.

This is an appeal from a judgment in a nonjury trial obtained pursuant to Tex. Family Code Ann. § 14.09(c) (1975) against appellant, Harry Lawrence Mitchell, for ar-rearages in child-support payments. Appellant was ordered to pay child support of $600.00 per month subsequent to a 1971 divorce decree. Although appellant has paid child support continually since the decree, he has not paid the above stated amount. We hold that the claim of appel-lee, Nancy Elizabeth Mitchell, is not barred by laches or estoppel and accordingly, we affirm.

The trial court filed findings of fact and conclusions of law, but these are not challenged. Appellant presents two contentions on this appeal. First, he argues that the equitable doctrine of laches applies since appellee waited more than seven years to file her suit. Second, he claims that an oral agreement to reduce the amount of the child-support payments exists between ap-pellee and himself, that he relied on this agreement, and thus, appellee is estopped from seeking recovery for any arrearages. Since the rule in Texas concerning the application of the doctrine of laches involves estoppel, K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782 (1958), we will consider these points together.

As a general rule, the doctrine of laches will not bar a suit short of the period set forth in the limitations statute unless some element of estoppel exists. K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, supra. The appropriate statute of limitations in this case is Tex.Rev.Civ.Stat. Ann. art. 5532, a ten-year statute of limitations. Houtchens v. Matthews, 557 S.W.2d 581 (Tex.Civ.App.—Fort Worth 1977, writ dism’d). The parties’ divorces became final on February 11, 1971 and child support was set at that time. This suit was filed on October 9, 1977. Seven years and eight months has passed between the two, and thus laches does not apply unless an element of estoppel is present. The trial court’s findings that appellee did not agree to any reduction in the amount of child support are unchallenged. We must accept these findings, McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.), and thus, we hold that no basis for estoppel exists. We do not pass on the question of whether such an agreement, if found by the court, would support appellant’s claim of laches.

Accordingly, we affirm.


text:
    Harvey L. THOMPSON, Jr., Appellant, v. PRESTON STATE BANK, Appellee.
    No. 19637.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 6, 1978.
    Rehearing Denied Dec. 6, 1978.

      John A. George, Dallas, for appellant.
    T. Michael Wilson, Jackson, Walker, Win-stead, Cantwell & Miller, Dallas, for appel-lee.
   GUITTARD, Chief Justice.

Preston State Bank brought this suit on a Master Charge account against the cardholder and the guarantor. The trial court, sitting without a jury, rendered judgment against both the holder and the guarantor for $931.35. The guarantor appeals on the ground that the amount of the credit extended by the bank exceeded the amount applied for before the guaranty was signed and before the card was issued. He also denies his liability for “finance charges.” We hold that the guaranty is not limited to the amount of the credit applied for, but that the guaranty by its terms covers only “purchases” and not “finance charges.” Accordingly, we modify the judgment by deleting the finance charges, and also certain charges to the account after notice of revocation by the guarantor, and as so modified, we affirm the judgment.

The guarantor, Harvey Thompson, was the father-in-law of George Clifton, to whom the card was issued. When Clifton approached the bank for a Master Charge card, he was told that he would need a guarantor of the account. The bank furnished him a form of guaranty, on which he obtained Thompson’s signature. The guaranty is as follows:

In consideration of your extending a Presto/Master Charge account to George L. Clifton, I guarantee absolutely to pay in Dallas, Dallas County, Texas, for all purchases made on the account. This agreement is a continuing one, revocable only by me in writing received in your office. You need not first proceed against the above before resorting to me for payment.

Clifton submitted this guaranty to the bank, together with his application on a printed form for a Master Charge credit card. The application contains a “cardholders agreement,” which provides that the “Customer” (holder):

authorizes Issuer to extend credit to or for the account of Customer to the extent necessary to pay for (i) all purchases of goods, other property, and services made at any time through the use of the Card, from any seller authorized to honor the Card (‘Credit Purchases’), and (ii) all cash advances obtained at any time, through the use of the Card, from any bank authorized to honor the Card (‘Cash Advances’).

The agreement further provides:

Customer promises to pay to Issuer in Dallas, Texas the entire amount of all credit extended hereunder and all FINANCE CHARGES and other charges incurred under the provisions hereof.

With respect to the amount of credit to be extended, the agreement provides:

Customer has been informed by Issuer of the maximum amount of indebtedness which may be outstanding at any time with respect to the Account (which maximum amount is made a part of this Agreement), and Customer agrees not to make any Credit Purchases or obtain any Cash Advances which would cause the outstanding balance in the Account to ever exceed such maximum.

The application form contains a blank space for “Amount of credit desired.” In this blank was written “$400.” However, when the card was issued in October, 1973, the bank advised Clifton that the credit limit was $200. No communication occurred between the bank and the guarantor Thompson before the credit card was issued. The guarantor was advised, apparently by Clifton, that the credit limit would be $400.

Although the balance of the account ran over $200 in December 1973 and February 1974, the bank notified Clifton in March 1974 that the credit limit was raised to $400. In August 1974 the balance reached $532.07, but in September a new card was issued. After August the balance each month exceeded $400, and in December 1974 it rose to $927.58. On December 26, the bank received a written revocation of the guaranty from Thompson. In January and February 1975 additional purchases were charged to the account, and thereafter finance charges were added. Clifton paid $75 and Thompson made payments aggregating $400. After allowing these credits and adding finance charges through January 1976, the bank demanded payment of a balance of $931.35. Receiving no further payments, it sued for that balance. Judgment in that amount was rendered against both Clifton and Thompson.

Thompson contends that he was discharged from his guaranty by the bank’s actions in increasing the credit without notice to him, in allowing Clifton to make additional purchases above the credit limit, and in reissuing the card when the account was in default. These actions, he argues, constitute a material and a substantial modification of the guaranty agreement and were prejudicial to his rights.

We do not agree that the bank’s actions discharged Thompson from his guaranty. The guaranty contract is absolute and unlimited. If we construe the guaranty together with the credit application, as Thompson urges us to do, we still find no obligation on the part of the bank to limit the amount of credit extended. The customer agrees to limit purchases to the amount specified by the bank, but the bank does not agree to limit the credit to any amount. The maximum is a matter within the bank’s discretion. On issuance of the card, the bank did not accept Clifton’s request for credit up to $400, but advised him that it would allow him only $200. Later it advised him that the amount was raised to $400, but it allowed him to run balances greater than that amount.

The guaranty, if referable to the agreement between Clifton and the bank, guarantees all amounts for purchases charged to the account by Clifton under the agreement, whether or not such purchases are within the maximum specified by the bank. Consequently, in extending credit beyond the maximum specified, the bank made no change either in the guaranty agreement or in its contract with Clifton. Neither does the bank’s negligence in extending more credit than the stated maximum afford a defense under the absolute and unconditional terms of this guaranty. Ganado Land Co. v. Smith, 290 S.W. 920 (Tex.Civ.App.—Galveston 1927, writ ref’d).

Alternatively, Thompson argues that the amount of the guaranty should be limited to $400 because that was the amount of credit that Clifton originally requested. We cannot agree. This $400 request was not accepted by the bank, which initially allowed only $200. Although the bank later notified Clifton that the maximum was raised to $400, it never agreed to limit the credit to that maximum. Clifton’s- agreement that he would not charge purchases in excess of the maximum stated by the bank does not imply a corresponding duty on the part of the bank not to extend the credit beyond the maximum. Consequently, the $400 maximum never became applicable as a contractual limitation on the amount of Thompson’s liability on the guaranty.

Thompson also contends that he is not liable for the finance charges provided in the agreement because his liability is limited by the terms of the guaranty to “purchases.” The bank replies that the guarantor’s obligation to pay “for all purchases made on the account” includes also the finance charges specified in the cardholder’s agreement because such charges, as well as the purchase prices of the various items, are charges “for purchases” if the amounts of the purchases are not promptly paid. The bank distinguishes “purchases” from “cash advances,” and argues that although cash advances might not be covered by the guaranty, finance charges on past due amounts charged for purchases are within the guaranty.

We do not agree that the finance charges are guaranteed. The terms of this guaranty are not broad enough to cover all amounts due on the account. A finance charge is not made pursuant to the contract between the purchaser and the seller, but is made by the bank under the cardholder’s agreement because of the purchaser’s delay in paying the bank the amount of-the purchase price which, presumably, the bank has already advanced to the seller. A guarantor’s obligation should not be extended by implication beyond the written terms of the agreement, and any ambiguity should be construed in favor of the guarantor. Commerce Savings Association v. GGE Management Co., 539 S.W.2d 71, 78 (Tex.Civ.App.—Houston [1st Dist.] 1976), modified and aff’d, 543 S.W.2d 862 (Tex.1976); Southwest Savings Association v. Dunagan, 392 S.W.2d 761, 766-67 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). Moreover, since this guaranty was on a printed form provided by the bank, any ambiguity in a printed contract should be construed most strongly against the party who selected the language. Amory Mfg. Co. v. Gulf, C. & S. F. Ry. Co., 89 Tex. 419, 37 S.W. 856, 858 (1896); Pledger v. Business Men’s Accident Ass’n of Texas, 228 S.W. 110, 113 (Tex.Com.App.1921, jdgmt. adopted); Monesson v. Champion International Corp., 546 S.W.2d 631 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). The term “purchases” in this context is, at best, ambiguous. Consequently, we construe the guaranty as not extending to the finance charges provided in the cardholder’s agreement.

We do not hold, however, that the guarantor has no liability for interest. From the time his obligation to pay arose, he is liable for interest at the legal rate from the date of his default. Commerce Savings Association v. GGE Management Co., 539 S.W.2d 71, 78 (Tex.Civ.App.—Houston [1st Dist.] 1976, modified and aff’d, 543 S.W.2d 862 (Tex.1976). Prejudgment interest, however, must be based on a proper pleading. Black Lake Pipe Line Company v. Union Construction Company, 538 S.W.2d 80, 96 (Tex.1976). In the present case, the bank has neither alleged nor proved any facts establishing the amount of Thompson’s liability for prejudgment interest.

Finally, Thompson contends that the trial court erred in its computation of the amount of damages recoverable from the guarantor because of amounts charged to the account after the bank received notice of revocation of the guaranty. This point also is well taken. At the time of the revocation on December 26, 1974, the outstanding balance was $927.55. Although some of the later charges may have been purchases for which the bank advanced its funds before it received the revocation, the record contains no proof in this respect. Since the bank had the burden, these items must be disallowed. Consequently, Thompson’s liability is limited to the outstanding balance of $927.58, less subsequent payments of $400 by him and $75 by Clifton, leaving a balance of $452.58, with interest at the legal rate from the time Thompson’s obligation to pay matured.

The judgment of the trial court is modified by reducing the amount of the recovery against Thompson to $452.58, as so modified, the judgment is affirmed. The judgment against Clifton is not disturbed. Costs are equally divided.

Modified and affirmed.


author: DIES, Chief Justice. KEITH, Justice,

text:
    GREEN PASTURES WATER CO., INC., Appellant, v. Ronald B. ZENT, Appellee.
    No. 8130.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 9, 1978.
    James R. Meyers, Austin, for appellant.
    J. Scott Chafin, San Marcos, for appellee.
   DIES, Chief Justice.

Defendant below, Green Pastures Water Company, Inc., appeals from an order denying its plea of privilege to be sued in the county of its domicile.

Plaintiff below, Ronald B. Zent, was a developer of a subdivision in Hays County, named “Brushy Creek Estates.” On May 23, 1975, defendant, who supplied water to several subdivisions in the area, agreed to sell water to “purchasers of lots in Brushy Creek Estates, an unrecorded subdivision situated in Hays County, Texas, owned by Zent.” In March 1976, a second agreement was entered, which purported to amend the May 1975 agreement, but which still obligated defendant to provide water service “to only those 49 lots presently comprising Brushy Creek Estates Subdivision.”

When defendant failed to supply water to Brushy Creek, plaintiff filed suit in Hays County for specific performance of the agreement. Defendant filed a plea of privilege. Plaintiff filed a controverting affidavit claiming that the agreement required performance in Hays County, and therefore Tex.Rev.Civ.Stat.Ann. art. 1995, § 5 (1964) was controlling. The trial court agreed.

The sole question before us is whether paragraph 7 of the May 1975 agreement as modified by the March 1976 agreement obligates defendant to perform an obligation. in Hays County. Defendant contends the contract provision (in the footnote) only obligates it to supply water to a pipeline system, built by plaintiff, and that the source of the water and at what location water was to be furnished is unspecified, and that the court cannot imply any obligation to perform in Hays County.

At the time of the contract in question, Tex.Rev.Civ.Stat.Ann. art. 1995, § 5 (1964) read:

“5. Contract in writing. — If a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile.”

The place of performance cannot be established by implication. See Texas American Oil Corp. v. Theo. H. Blue Drilling, Inc., 547 S.W.2d 690 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.); Maynard Hill, Inc. v. Smith, 534 S.W.2d 733 (Tex.Civ.App.—Waco 1976, no writ).

But this “ . . . does not necessarily mean that the county or place is to be designated by name or that the contract specifically, in so many words, require[s] a particular spelled-out obligation, but it is sufficient if when the contract is read from its four corners, it clearly shows that the venue of performance lies in such county.” Tyson v. Seaport Grain, Inc., 388 S.W.2d 731, 732 (Tex.Civ.App.—Corpus Christi 1965, writ dism’d).

Defendant (appellant) relies on Maynard Hill, Inc. v. Smith, supra, which involved a contract that stated doors and windows were to be furnished. The top of the agreement read, “Project: Smith, Location: Waco.” The Waco court noted that the contract made no mention of delivery to Waco, but only stated that the materials were to be “furnished” and said:

“The only way Maynard Hill can be said to have agreed in the contract to deliver the materials to Waco would be by implication, and venue under subdivision 5, cannot be fixed by implication . . . .” Id. 736.

Doors and windows could without much difficulty be supplied at either purchaser’s or seller’s place, but it is difficult to see how water could be.

We conclude that the contract provisions quoted above obligate the defendant to deliver and sell the water in Hays County, and therefore affirm the order of the trial court.

AFFIRMED.

KEITH, Justice,

dissenting.

As noted correctly in the majority opinion, “ ‘venue under subdivision 5, cannot be fixed by implication.’ ” That has been the uniform holding of our court since Saigh v. Monteith, 147 Tex. 341, 215 S.W.2d 610, 611 (1948), following the 1935 statutory amendment to Subdivision 5. Indeed, the holding in Maynard Hill, Inc. v. Smith, 534 S.W.2d 733, 736 (Tex.Civ.App.—Waco 1976, no writ), cited by the majority, enunciates clearly the correct rule that venue cannot be fixed by implication.

The contract which Zent sought to enforce did not obligate defendant to sell anything to Zent at any specified place. The original contract between the parties, set out in the footnote of the majority opinion, was modified by a subsequent agreement. In the amendment it is clearly stated that Zent is to purchase the water, and defendant’s only obligation is to furnish water for which plaintiff is to pay $300 per month. Read together, the contractual obligations are these: (1) plaintiff is required to build a pipeline to defendant’s water source, the location of which is not shown to be in Hays County; (2) defendant is required to furnish water to that pipeline; and (3) plaintiff is obligated to pay defendant $300 per, month for the water so supplied.

Under the rationale of Harkness v. Employers National Ins. Co., 502 S.W.2d 670 (Tex.1973), venue under Subdivision 5 “is not invoked unless the contract in writing expressly names the county of performance or a definite place therein.” See also Texas American Oil Corp. v. Theo. H. Blue Drilling, Inc., 547 S.W.2d 690 (Tex.Civ.App.—El Paso 1977, writ ref’d n. r. e.), wherein Harkness was followed by the majority while the dissenting justice followed Tyson v. Seaport, Grain, Inc., 388 S.W.2d 731, 736 (Tex.Civ.App.—Corpus Christi 1965, writ dism’d), cited in the majority opinion in this case.

I would follow Harkness and Blue and order a reversal of the judgment overruling the plea of privilege.

       “7. Water Company agrees to sell water to purchasers of lots in Brushy Creek Estates, an unrecorded subdivision situated in Hays County, Texas, owned by Zent; provided, however, that sales shall be at prices comparable to sales of water in neighboring subdivisions at the time of the sale. Each individual customer shall be required to install at his cost a water meter. Zent agrees to install pipelines for the transmission of water, said installation to be built according to specifications approved by Water Company and such installation to be comparable to the installation in Rolling Hills Ranch-ettes Subdivision and Green Pastures Subdivision; such installations to be paid for by Zent. Water Company’s obligation hereunder is conditioned upon title to the completed pipeline being conveyed to Water Company.”

      . See Acts of 1935, 44th Leg., p. 503, ch. 213, § 1, quoted in Saigh, supra.

      . The modification agreement of March 8, 1976, read in part:
      3(f). “Zent agrees to pay to Water Company a minimum monthly service charge in lieu of water revenue, in the amount of Three Hundred and No/100 Dollars ($300.00) per month, with payment to begin nine (9) months from the date of execution of this instrument. This payment will continue until such time as water revenue from metered customers in Brushy Creek Estates shall exceed $300.00 per month.”


text:
    Ouida ANDERSON, Appellant, v. R. Benton ANDERSON, Appellee.
    Motion No. 22622.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 16, 1978.
    Rehearing Denied Dec. 13, 1978.
    Reba Graham Rasor, Koons, Smith & Johnson, Dallas, for appellant.
    William M. Boyd, McKinney, for appellee.
   GUITTARD, Chief Justice.

Our clerk has declined to file the record in this case on the ground that it was tendered more than sixty days after the amended motion for new trial was overruled by operation of law. Appellant has filed a motion to direct the clerk to file the record, contending that the motion was not overruled by operation of law, but by a ruling in open court, and that the sixty-day period did not begin to run until the order overruling the motion was signed, although that order was signed more than forty-five days after the amended motion was filed. We overrule the motion on the ground that under rule 306a, Texas Rules of Civil Procedure, we must deem the court’s ruling to have been made when the order was signed.

Appellant relies on subdivision 4 of rule 329b, Texas Rules of Civil Procedure, which provides in part:

“4. It shall be the duty of the proponent of an original or amended motion for new trial to present the same to the court within thirty (30) days after the same is filed. ... In the event an original motion or amended motion for new trial be not presented within thirty (30) days after the date of the filing thereof, and the judge in his discretion refuses to consider the same or refuses to hear evidence relating thereto, such motion shall be overruled by operation of law forty-five days after the same is filed, unless disposed of by an order rendered on or before said date.’’ (Emphasis added.)

Appellant contends that the provision for overruling of a motion for new trial within forty-five days applies only if the motion is not presented and is not disposed of within that period. In this case the amended motion was filed on June 19 and was presented and overruled in open court on July 13, but no order was signed until August 28. The forty-five-day period expired on August 3. Appellant argues that the motion was not overruled by operation of law on August 3 because the motion had already been presented and disposed of on July 13, but that the time for filing the record began to run on August 28, when the order was signed. For this result she invokes rule 306a, Texas Rules of Civil Procedure, which provides that in determining the periods within which the various steps of an appeal must be taken, “the date of rendition of a judgment or order shall be deemed to be the date upon which the written draft thereof was signed.” In effect, appellant asks us to treat the motion as overruled by the court’s oral pronouncement of July 13 for the purpose pf preventing the running of the forty-five-day period prescribed by rule 329b(4), but to treat the motion as overruled by the written draft signed on August 28 for the purpose of determining the beginning of the sixty-day period prescribed by rule 386, Texas Rules of Civil Procedure.

We cannot' agree with this contention because rule 306a requires that the date of rendition of the order be deemed the date on which the written draft was signed for the purpose of determining all periods within which the steps of an appeal must be taken. Consequently, even though the motion was orally overruled on July 13, we must deem the court’s ruling as having been made on August 28, when the written order was signed. Washington v. Golden State Mutual Life Insurance Company, 408 S.W.2d 227 (Tex.1966), refusing writ of error, 405 S.W.2d 856 (Tex.Civ.App.—Houston [1st Dist.] 1966). Since that date was more than forty-five days after the motion was filed on June 19, we must deem the motion overruled by operation of law under rule 329b(4) when the forty-five-day period expired on August 3. The record was not tendered for filing in this court until October 27, eighty-five days after the motion was overruled by operation of law. At that time it was too late either to file the record or to file a motion for extension of time under rule 21c, Texas Rules of Civil Procedure. Consequently, the clerk was correct in declining to accept the record for filing.

Motion to file record overruled.


author: McDONALD, Chief Justice.

text:
    Philip SILVERSTEIN, Appellant, v. Jewel NATKIN, Appellee.
    No. 5975.
    Court of Civil Appeals of Texas, Waco.
    Nov. 16, 1978.
    Edward L. Minarich, Jr., San Antonio, for appellant.
    Jack A. Efron, Daniels, Efron & Holden, San Antonio, for appellee.
   OPINION

McDONALD, Chief Justice.

The trial court rendered an order by default against appellant Silverstein, modifying a prior order and removing him as managing conservator of his and appellee’s minor child, and appointed appellee mother of the child managing conservator and required appellant to pay $350. per month child support, plus $600. attorney’s fees.

Appellant appeals by writ of error, contending among other matters of his inability to obtain a statement of facts through no fault of his own.

A reporter’s certificate is in the record stating that the official court reporter did not attend the hearing and report the trial court’s proceedings.

Section 11.14(d) Texas Family Code requires that a record shall be made in parent and child relationship cases as in civil cases generally unless waived by the parties with consent of the court.

Moreover, appellant who was defendant in the trial court, is entitled to a statement of facts in question and answer form, and if through no fault of his own, he is unable to procure such statement of facts, his right to have the case reviewed on appeal can be preserved to him in no other way than a reversal and retrial of the case.

Rogers v. Rogers, Tex., 561 S.W.2d 172; Smith v. Smith, Tex., 544 S.W.2d 121; Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697; Gibbs v. Crittenden, (Tex.Civ.App., Waco) NWH, 262 S.W.2d 804; Edmond v. Schilling, (Tex.Civ.App., Waco) NWH, 501 S.W.2d 432; Pacific Greyhound Lines v. Burgess, (Tex.Civ.App., Amarillo) Er.Ref., 118 S.W.2d 1100; Waller v. O’Rear, (Tex.Civ.App., Waco) NRE, 472 S.W.2d 789; Goodin v. Geller, (Tex.Civ.App., Waco) NRE, 521 S.W.2d 158; Dugie v. Dugie, (Tex.Civ.App., San Antonio) 511 S.W.2d 623.

Appellant’s contention is sustained.

REVERSED AND REMANDED.


author: CLAYTON, Justice.

text:
    The FROST NATIONAL BANK OF SAN ANTONIO, Executor of the Will and Estate of Max Stool, et al., Appellants, v. Michael STOOL et al., Appellees.
    No. 8156.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 22, 1978.
    Rehearing Denied Dec. 21, 1978.
    Robert P. Thomas, San Antonio, for appellants.
    St. John Garwood, Jr., Houston, for ap-pellees.
   CLAYTON, Justice.

■ Plaintiffs filed this suit for a declaratory judgment pursuant to Tex.Rev.Civ.Stat. Ann. art. 2524-1 (Vernon 1965) seeking a judgment declaring their ownership of three trust accounts “standing on the books of . . the Del Rio First Savings & Loan Association ... in the names of ‘Max Stool, Trustee for Michael Stool,’ ‘Max Stool, Trustee for Louis Allen Stool,’ and ‘Max Stool, Trustee for Gerald Harris Stool,’ ” naming as defendants The Frost National Bank of San Antonio, Independent Executor of the Will and Estate of Max Stool, Deceased, and Fannie W. Stool, Independent Executrix of the Estate of Joseph A. Stool, deceased.

The case was tried without a jury, and the trial court made and filed findings of fact and conclusions of law. Judgment was entered to the effect that Max Stool created valid trusts of which plaintiffs were the benefieiaries, that the money transferred to the three accounts constituted the corpus of each respective trust, and that upon the death of Max Stool the three trusts terminated and the plaintiffs became the owners of the property in controversy.

Appellants attack the findings and conclusions of the trial court by appropriate no evidence and insufficient evidence points. It is well settled that the trial court’s findings carry the same weight as jury findings by which we are bound, if such findings are supported by probative evidence. In a non-jury case, the trial court is the judge of the credibility of the witnesses and the weight to be accorded their testimony. Great American Insurance Co. v. Murray, 437 S.W.2d 264 (Tex.1969); Central National Bank v. Booher, 557 S.W.2d 563 (Tex.Civ.App.—Beaumont 1977, writ ref’d n. r. e.); Johnson v. Lane, 524 S.W.2d 361, 363 (Tex.Civ.App.—Dallas 1975, no writ).

Appellants argue the record in this case “does not reveal evidence, or sufficient evidence, necessary to support the trial court’s finding that Max Stool intended to create presently operative trusts.”

Prior to the creation of the three “trust accounts” made the basis of this suit, Max Stool had an individual account at the savings association, numbered 3835, which was opened in 1966. Max Stool made a deposit to that account on August 3,1967, and such deposit resulted in a balance of $42,000 in account number 3835. The first entry of each of the three “trustee accounts” involved in this case is dated August 4, 1967, at which time the sum of $14,000 was transferred to each account.

The record does not clearly reveal the details surrounding the opening or funding of the accounts. Appellee, Michael Stool, testified that he went to the savings association where he was given some “instruments that he [the president of the association] prepared for myself and my two brothers out of my grandfather’s [account] —involving my grandfather as trustee and truster [sic].” He further testified that he took the documents [three account signature cards] to Max Stool and that he left the house a short time later with the cards, at which time “they were signed ‘M. Stool.’ ” The cards were then taken back to the association.

The treasurer of the association testified that Michael Stool came to the association around August 4, 1969, and “requested that he be given the necessary documents to take out to his grandfather for his signature. . . . ” She testified that the accounts were to be “trust accounts”; that the association did not have a supply of form “trust account” signature cards; and that a joint account form signature card was adapted in this instance as a “trust account” signature card. She testified further that Michael Stool “brought in the cards with the request that this be done at his grandfather’s instructions” — referring to the instructions that the $42,000 was to be transferred from Max Stool’s account to the three new accounts.

The president of the association testified that Michael Stool came to the savings association and told him that Max Stool wanted his individual account divided among the three grandchildren.

Following the opening of the three “trust accounts,” Max Stool did not make any additional deposits and made no withdrawals.

The property represented by these three accounts was not specifically devised by the terms of Max Stool’s will.

Max Stool’s accountant testified that, in 1962, Max Stool made a gift of $73,000 to the children of his daughter, and, in 1965 or 1966, Max Stool gave $60,000 in securities to the children of his other son. He further testified that in July 1967 Max Stool said to him, “I gave gifts to the other grandchildren, and I’ve got to give these children [in reference to the appellees] something.” Later, in December 1967, Max Stool told him that he (Max) had given money to “William’s children [appellees].”

Appellants argue that, in view of the evidence in this record, it is not shown that Max Stool intended to create a presently operative trust and, in support of such argument, cite Fleck v. Baldwin, 141 Tex. 340, 172 S.W.2d 975 (1943), and Land v. Marshall, 426 S.W.2d 841 (Tex.1968). In the Fleck case, our Supreme Court held that a trust is not created simply by depositing or by using the words “in trust,” but that intent to pass equitable title must be shown. Intent is shown by a consideration of the relevant acts and declarations of the trustor-grantor. In the case of a savings account trust, the court required that the declarant show intent by a larger number of acts than in the case of an ordinary trust. The. trust in the Fleck case was held invalid because there was no passing of equitable title and the trustor never intended that equitable title pass. The court referred to Mrs. Baldwin as a widow “in a constant state of indecision as to the method of disposing of . [her property]” who never parted with her right to exercise dominion and control over any part of the savings accounts, but that she retained and exercised full authority to use and dispose of it as she willed. She actually made numerous additional deposits and withdrawals from the accounts. Moreover, Mrs. Baldwin’s sisters never learned of the trusts until after Mrs. Baldwin’s death; this fact was emphasized in holding that Mrs. Baldwin’s intention was not to create a trust. The record in our case shows that the beneficiaries under the trust knew of the trust, and after the trust accounts were opened, Max Stool never made any additional deposits or withdrawals from the trust accounts.

The Fleck case holds that a valid inter vivos trust could not be created without compliance with the common law requirements of a gift inter vivos. However, in Land v. Marshall, supra, the court said that the Texas Trust Act “expressly sanctions that which the opinion in Fleck v. Baldwin condemned” and that a valid inter vivos trust may be created without compliance with the common law requirements of a gift inter vivos. The necessity of proving intent to create a presently operative trust has not been abandoned by the cases cited by appellants.

We must review the evidence in its entirety, in the most favorable light in support of the findings made by the trial court and consider only the evidence and inferences which support such findings. Lucas v. Hartford Accident & Indemnity Co., 552 S.W.2d 796 (Tex.1977); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). Upon a review of the record in accordance with such standard of review, we conclude the evidence is factually sufficient to support the findings of the trial court that Max Stool intended to and did create a valid trust in the three trust accounts of which appellees were the beneficiaries, that the money, and all accumulated dividends and interest, was the corpus of such trusts, and that the appellees became the owners of the trust accounts on the death of the trustor, Max Stool.

The judgment of the trial court is affirmed.

AFFIRMED.