author: W. C. DAVIS, Judge.

text:
    Richard APODACA, Appellant, v. The STATE of Texas, Appellee.
    No. 55586.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 31, 1979.
    Rehearing En Banc Denied Dec. 5, 1979.
    Michael R. Gibson, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Douglas Gelo, Asst. Dist. Atty., El Paso, and Kobert Huttash, State’s Atty., Austin, for the State.
   OPINION

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

W. C. DAVIS, Judge.

This is an appeal from a conviction for voluntary manslaughter. Appellant was indicted for murder, but the jury found him guilty of the lesser offense, and assessed his punishment at fifteen years in the Texas Department of Corrections.

The record reflects that in January of 1976, appellant was riding with John Lewis in Lewis’ car. Lewis was driving. They confronted the deceased and an argument between Lewis and the deceased ensued. The deceased drove away in his truck and Lewis chased him. Lewis and appellant thereafter chased the truck on the highway at high rates of speed. At some times during the chase, appellant leaned out of Lewis’ car and beat on the truck with a tire tool. Some time thereafter, Lewis’ car hit the truck, knocking it into a guard rail. The deceased was killed in the crash and the truck subsequently caught fire and burned. Lewis and appellant drove away from the scene and agreed to “keep quiet” about what had occurred.

In his first ground of error, appellant contends that the trial court erred in its charge to the jury. Specifically, he contends that the charge, over his objection, failed to apply the law of parties to the facts. We agree.

V.T.C.A. Penal Code, Section 7.02, provides in part that:

“(a) A person is criminally responsible for an offense committed by the conduct of another if:
* * * * * *
(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense . . . ”

The State’s theory of prosecution was that appellant was criminally responsible for the acts of Lewis in causing the wreck which killed the deceased.

The trial court charged the jury:

“A person is criminally responsible, as a principal, for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of an offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. In this connection, you are instructed that mere presence of a person at the time the offense is committed does not of itself constitute a person a principal: but, when a person is actually present, he must either by words or agreement encourage another in the commission of an offense. Such agreement must be prior to or contemporaneous with the criminal event.”

In applying the law to the facts of the instant case, the trial court charged the jury:

“Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about January 12, 1976, in El Paso County, Texas, the Defendant, Richard Apodaca, as a principal, either (1) caused the death of Edward Figueroa, by driving a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pickup truck, driven by the said Edward Figueroa, or (2) as a principal, intended to cause serious bodily injury and committed an act clearly dangerous to human life, to wit: drove a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pickup truck, driven by the said Edward Figueroa that caused his death, you will in either of such cases find the said Defendant guilty of Murder as charged in the Indictment . . .”

A similar charge was given on the lesser offense of voluntary manslaughter:

“Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about January 12, 1976, in El Paso County, Texas, the Defendant, as a principal, acting under the immediate influence of sudden passion, arising from an adequate cause, intentionally or knowingly, either (1) caused the death of Edward Figueroa, by driving a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pickup truck, driven by the said Edward Figueroa, or (2) intended to cause serious bodily injury, as a principal, and committed an act clearly dangerous to human life, to wit: drove a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pcik-up (sic) truck, driven by the said Edward Figueroa that caused his death, you will in either of such cases find the Defendant guilty of Voluntary Manslaughter.”

Appellant properly and timely objected to the court’s charge, and requested that the court charge the jury:

“Now, therefore, if you believe from the evidence beyond a reasonable doubt that on or about January 12, 1976, in El Paso County, Texas, John Lewis, either caused the death of Edward Figueroa by driving a motor vehicle, to wit: an automobile, into and causing it to collide with a motor vehicle, to wit: a pickup truck driven by the said Edward Figueroa, or John Lewis intended to cause serious bodily injury and committed an act clearly dangerous to human life, to wit, drove a motor vehicle, to wit: an automobile into and causing it to collide with a motor vehicle, to wit: a pickup truck, driven by the said Edward Figueroa, that caused his death, and if you further believe from the evidence beyond a reasonable doubt, that on or about January 12, 1976, in El Paso County, Texas, the Defendant, Richard Apodaca, as a party, solicited, encouraged, directed, aided or attempted to aid the said John Lewis in the foregoing action, you will find the said Richard Apo-daca guilty of Murder as charged in the ■ indictment . . .” (Emphasis added)

This same charge was requested as to each lesser included offense, including voluntary manslaughter of which appellant was convicted. We hold that the trial court erred in failing to apply the law of criminal responsibility to the facts herein, over appellant’s objection. This requires a reversal of the cause; Savant v. State, 544 S.W.2d 408 (Tex.Cr.App.1978); McCuin v. State, 505 S.W.2d 827 (Tex.Cr.App.1974); see Oliver v. State, 160 Tex.Cr.R. 222, 268 S.W.2d 467 (1954). No evidence in the instant case supported submission of the case on the theory that appellant was the primary actor. The State’s theory of prosecution in the instant case was that the co-defendant, Lewis, as the driver of the car, was the principal actor and that appellant was guilty, if at all, as a party because he solicited, encouraged, directed, aided or attempted to aid the co-defendant, Lewis. Thus, the trial court erred in refusing appellant’s request for a charge to so instruct the jury. McCuin v. State, supra; Savant v. State, supra.

In Romo v. State, 568 S.W.2d 298 (Tex.Cr.App.1978) (opinion on State’s Motion for Rehearing), we were confronted with a similarly defective charge which also failed to apply the law of parties to the facts of the case. However, we held that since the defendant in that case had failed to object to the charge, he was not entitled to relief. We stated:

“In circumstances where a defendant, if guilty at all, is guilty as a party, the court should properly apply the law of parties to the facts of the case, but the failure to do so is not reversible error unless there is a timely and sufficient objection . . ”

Accord, Bowers v. State, 570 S.W.2d 929 (Tex.Cr.App.1978). These cases do not control the disposition of the instant ease, because here, appellant made a timely and proper objection to the charge, and thus preserved error.

The State nevertheless contends that since the court charged the jury on the abstract law of parties (although reference was made to “principals” rather than “parties”), and since the jury was instructed to find whether appellant caused the deceased’s death “as a principal,” this was sufficient. We do not agree. This reference to the law of parties, contained in the paragraph applying the law to the facts, was not sufficient to require the jury to find whether Lewis, the driver of the vehicle, caused the deceased’s death and whether appellant was criminally responsible for those acts of Lewis. Nowhere in the charge is the jury required to find that Lewis committed any criminal acts, for which appellant could be held responsible, if at all, because of his encouragement, assistance, etc., of those acts.

Accordingly, the judgment is reversed and the cause remanded.

      . In its charge, the trial court substituted the term “principal" for the word “party” as defined in V.T.C.A. Penal Code, Section 7.01, supra. This is the subject of another of appellant’s grounds of error.


source: Caselaw Access Project

author: DOUGLAS, Judge,

license: Public Domain

text:
    William Parma GASSETT, Appellant, v. The STATE of Texas, Appellee.
    No. 56825.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 31, 1979.
   STATE’S MOTION FOR REHEARING

DOUGLAS, Judge,

dissenting.

For majority opinion, see Tex.Cr.App., 587 S.W.2d 695.

The case is reversed because the jury was not charged that appellant had a “right” to arm himself and seek an explanation or discussion concerning his differences with the deceased. This “right” is not provided for by the Constitution of Texas or by the Legislature. Rather, it is a creature of this Court established many years ago and has become fixed and followed without question. It is time to re-examine this “right in the context of modem society. We are no longer in the frontier days when the rule was established. When a court-made rule is incorrect, a court can correct such a rule.

The right was first fully stated in Shannon v. State, 35 Tex.Cr.R. 2, 28 S.W. 687 (1894). In that case, the court explained the rule as follows:

“. . . There is no question that one may speak to another about derogatory charges or statements made or circulated by such other person against him, without intending or even desiring to provoke a difficulty; and, knowing such other person is armed, he may also arm himself, not to provoke a difficulty or to produce an occasion for injuring the other, but to act, if necessary, in self-defense. If, then, in an attempt to adjust the trouble or reach an understanding, without any provocation on defendant’s part, the insult or charge complained of is not only persisted in, but publicly repeated, and defendant, roused to passion thereby, replies in terms equally insulting, and is immediately attacked, and finally kills, but only in defense of his life, we cannot hold him guilty of any crime. To hold otherwise would be to deny a man the right to notice any insult or interrogate the author of any charge because he would forfeit the right to defend his life if he should be attacked. The tendency of the right to abuse is no answer to the right itself. . . . ”

To put this reasoning in its proper context we need look no further than the facts in the Shannon case. The deceased had called Shannon a coward “in the presence of ladies.” This so enraged Shannon that he sought the deceased out and the following then transpired:

“. . . Again deceased repeated the remark, and appellant replied, and then deceased attempted to ride him down with a large and spirited stallion upon which he was mounted, and was only prevented from doing so by appellant catching the reins near the bit. He then drew his pistol, and held it down by his side. A struggle ensued, deceased endeavoring to jerk his reins away and ride over appellant, both parties talking excitedly. Finally, appellant, using his pistol as a bludgeon, struck deceased, who thereupon drew his pistol and began firing, when appellant shot and killed him.

Shannon’s honor had been questioned in the presence of ladies. He sought the man who called him a coward and apparently restored his reputation by causing the death of another. While chivalrous notions may have led the early court to applaud young Shannon’s courage, the specter of a latter-day Shannon arming himself with a pistol and stalking his antagonist through the noon rush hour of downtown Dallas is not one that would give any rational man comfort.

No statute gives one a “right” to arm oneself and seek an explanation. A statute does provide that the use of force in self-defense is not justified in response to verbal provocation alone. V.T.C.A, Penal Code, Section 9.31(b)(1). It also limits the right to self-defense when the actor provokes the attack upon himself. V.T.C.A, Penal Code, Section 9.31(b)(4). It is difficult to see how a rational system of law could impose these limits on the right to self-defense while still allowing an individual to arm himself and seek out a “discussion” with an enemy.

The Legislature has made it unlawful for one to carry on or about his person a handgun. V.T.C.A., Penal Code, Section 46.02.

We should follow the sound reasoning of the Legislature and not blindly follow a rule established so that one could carry a pistol to seek an explanation about his being called a coward. The possession of a firearm while seeking an explanation creates a dangerous potential for violence. Even if such a rule had been appropriate in 1894, it has no place in 1979 society. Disputed matters should be settled by the court and not by guns. We should do everything possible to discourage such potentially dangerous conduct by our citizens. The “right” to go armed to seek an explanation being a judicial creation should be judicially destroyed.

The State’s motion for rehearing should be granted.


author: ODOM, Judge.

text:
    Walter Henry ROUTON, Appellant, v. The STATE of Texas, Appellee.
    No. 61530.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 21, 1979.

      Robert S. Thompson, San Antonio, court appointed, Antonio G. Cantu, San Antonio, of counsel, David K. Chapman, San Antonio, Janet M. Seymour, Houston, for appellant.
    Bill M. White, Dist. Atty., Susan D. Reed and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for involuntary manslaughter. After a bench trial the court assessed punishment at ten years.

In his first ground of error appellant contends the circumstantial evidence is insufficient to support the conviction. The indictment alleged that appellant did:

“. . . intentionally and knowingly cause the death of ROSE MARIE McCORD by STRIKING AND BEATING THE SAID ROSE MARIE McCORD WITH HIS HAND AND AN OBJECT TO THE GRAND JURORS UNKNOWN

The deceased, a child of less than two years of age, was left in appellant’s care on the night of November 11, 1977. In the early morning hours of November 12 emergency medical personnel and police were .called to a report of an injured child at the apartment where appellant was in charge of the deceased and her several half brothers and sisters. She was dead at the scene. Appellant told the officers that the child had fallen down the stairs.

Dr. Nina Hollander testified to the cause of death:

“Q. Now, Doctor, were you able after having examined Rose Marie McCord to formulate an opinion as to her death?
“A. The child died from multiple injuries including fracture of the left humerous and laceration of the liver and the mesentery. Transection of the pancreas and duodenum and multiple contusions. And the matter was homicide.
“Q. Did you find any indication marks anywhere on the body to indicate how these would be inflicted?
“A. The injuries to the abdomen considering the contusions of the back and the front could have been inflicted by thumbs being pressed in the back and other fingers being pressed in the front of the abdomen with great force.
“Q. Would this be by both hands or one hand?
“A. Both hands.
“Q. For an arm of a child of this age to be broken, what sort of force is required?
“A. Well, it requires force — a bone is not that easily broken.
“Q. The lacerations and contusions that you have testified to, did you determine whether or not that they were made at one particular time?
“A. They were made within twenty-four hours of death of the child.
“Q. What I am asking is whether or not they were made — whether many of them were older than others?
“A. No, these weren’t old contusions that were consistent with the occurrences having been made at the same time.
“Q. Let me ask you this: If a child had fallen down stairs, would these contusions and lacerations and injuries would have been consistent with that sort of an accident?
“A. No, would not account for all of them.”

The only witness to testify to appellant’s treatment of the deceased was her half-sister, seven year old Doris Moody:

“Q. Do you remember about the Police Officers coming?
“A. Yes.
“Q. Do you remember whether Walter was there?
“A. (Nodding head affirmatively)
“Q. Was your mother home?
“A. No.
“Q. How long had Walter been there? “A. (No response)
“Q. Was he living there with you? “A. (Nodding head negatively)
“Q. Was he supposed to take care of you that night?
“A. (Nodding head affirmatively)
“Q. He was?
“A. Yes.
“Q. Did you see Walter try to change Rosie’s diaper?
“A. (Nodding head affirmatively)
“Q. You did?
“A. Yes.
“Q. And, did you see what happened — what was Rosie doing when Walter was trying to change her diaper?
“A. She was laying on the floor.
“Q. Okay. Was she making any noises?
“A. Crying.
“Q. What was she doing?
“A. Crying.
“Q. What room was she in when she was lying on the floor?
“A. Jeannie’s.
“Q. Jeannie’s?
“A. Yes.
“Q. And, is that upstairs or downstairs?
“A. Upstairs.
“Q. Okay. Now, when Rosie was crying, what did Walter do?
“A. Spanked — shaked her.
“Q. Okay. Did you see Rosie’s arm?
“A. (Nodding head affirmatively)
“Q. Did you ever see Rosie’s arm get red?
“A. (Nodding head affirmatively)
“Q. And, why did it get red?
“A. Because Walter was shaking her.
“Q. Okay. What was he using to shake her?
“A. With his hands.
“Q. Okay. Was Rosie crying a lot while all of this was happening?
“A. (Nodding head affirmatively)
“Q. She was, is that right?
“A. Yes.
* * * * >(c *
“Q. Now, when you didn’t go downstairs and you just stood there, could you see Walter?
“A. Yes.
“Q. From where you were standing?
“A. (Nodding head affirmatively)
“Q. What was he doing?
“A. Leaning over Rosie to get the wet rag.
“Q. Okay. And, what was he doing to Rosie?
“A. Shaking her.
“Q. Okay. Now, how was he doing that?
“A. Like this. (Indicating)
“Q. What was he using?
“A. His hands.
“Q. Okay. What did you do after you saw this? Did you stay there and watch?
“A. Yes.
“Q. How long did you stay there?
“A. For a minute.
“Q. After you stayed there for a minute, where did you go? Did you do anything?
“A. I went downstairs.
“Q. And then, what happened?
“A. Johnny brought cigarettes up to Walter.
⅜ * * * * *
“Q. And then what happened?
“A. Johnny talked a little bit.
“Q. Okay. And then what happened? Did Johnny stay there?
“A. No.
“Q. Did he leave?
“A. He. talked for a little while and then he left.
“Q. Okay. And, what did you do?
“A. Lay on the couch.
“Q. Okay. Do you know what Walter did during that time?
“A. (Nodding head negatively)
“Q. Okay. Do you remember if the Police came later?
“A. (Nodding head affirmatively)
“Q. Was it that same night?
“A. (Nodding head affirmatively)”

On cross-examination she testified:

“Q. Well, I am a little mixed up and you are going to have to help me to get straightened out. When Johnny left, was Rosie downstairs or upstairs?
“A. Who?
“Q. When Johnny left, was Rosie upstairs or downstairs?
“A. Downstairs.
“Q. And Walter had already brought her downstairs?
“A. (Nodding head affirmatively)
“Q. Did Johnny see Rosie upstairs?
“A. No.
“Q. Had Rosie already been brought downstairs when Johnny came?
“A. Yes, and then Johnny left and he did not come back.
“Q. I see. Was Walter upstairs when Johnny came?
“A. No.
“Q. He was downstairs?
“A. No — yes.
“Q. You were downstairs when Johnny came?
“A. Yes.
“Q. Was there anybody downstairs when Johnny came?
“A. No.
“Q. Did Johnny go upstairs?
“A. No.
“Q. He did not go upstairs?
“A. No.
“Q. So everybody stayed downstairs?
“A. No — yes. And then he left.
“Q. Did he see Rosie when he came?
“A. (Nodding negatively)
“Q. I see. Did Rosie ever go back upstairs after Johnny left?
“A. No.”

On redirect she testified:

“Q. I just have one question for you: That night when all of this happened, do you remember if Rosie fell down the stairs?
“A. No.
“Q. She didn’t?
“A. Yes, she did.
“Q. When?
“A. After Johnny brought the cigarettes.
“Q. Did you see how she fell down the stairs?
“A. (Nodding head negatively)
“Q. Where was Walter when this happened?
“A. Upstairs.
“Q. How far did she fall?
“A. (Nodding head negatively)
“Q. You don’t know? Was it one step or two steps?
“A. (Nodding head negatively)
“Q. Did you see this happen?
“A. No.
“Q. How do you know it happened?
“A. I think she fell down four or five.
“Q. You actually saw her fall down four or five stairs?
“A. No.
“Q. Did Walter tell you that she fell down the stairs?
“A. No, I heard it.”

The most significant points of Dr. Hollander’s testimony are: (1) that the deceased’s abdominal injuries, considering the contusions in back and in front, could have been caused by thumbs being pressed in back and the other fingers being pressed in front with great force by both hands, (2) that the injuries were inflicted within 24 hours of death, and (3) that a fall down the stairs would not account for all the injuries.

The most significant points of Doris’ testimony were (1) that appellant was taking care of the children that night although he did not live there, (2) that when he was changing the small child’s diaper, she was crying, and Doris saw him shake her using his hands, and (3) that she heard the child fall down the stairs.

Of significance in the combined import of these witnesses’ testimony is that while the injuries could have been inflicted at any time within 24 hours of death, it was also shown that appellant did not live at the apartment, but was only there to care for the children that night, and there was no showing of when appellant took charge of the children, or of whether the deceased had no injuries at that time. Although the testimony shows that the abdominal injuries could have been caused by great force being applied by the hands, and that appellant shook the child, no testimony was presented of how he held the child, or whether he grasped it in a manner consistent with the severe abdominal injuries it received. This is a weak circumstantial evidence case because of the deficiencies in the description by Doris Moody of appellant’s actions, because of the testimony of Dr. Hollander that the injuries were inflicted within twenty-four hours of death coupled with the fact that it was not shown when appellant, who did not live in the apartment, had charge of the children, and because of the State’s failure to call as a witness the mother of the deceased who had left the children in appellant’s care and presumably could have shown when appellant took charge of the children on that night and what the condition of the dead child was at that time.

In Waldon v. State, 579 S.W.2d 499, the Court held:

“It is also well established that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient. Stogsdill v. State, Tex.Cr.App., 552 S.W.2d 481; Flores v. State, Tex.Cr.App., 551 S.W.2d 364; Easley v. State, Tex.Cr.App., 529 S.W.2d 522; Indo v. State, Tex.Cr.App., 502 S.W.2d 166. This is especially significant when the night watchman was in the terminal area with a view of the runway and plane parking area and could have shed light on the missing facts of this case.
“Where circumstantial evidence relied on by the prosecution is somewhat weak and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellant court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction. Schershel v. State, Tex.Cr.App., 575 S.W.2d 548; King v. State, Tex.Cr.App., 396 S.W.2d 409; 24 Tex.Jur.2d 427, Evidence, Section 745.”

This rule applies to the instant case. The failure of the State to produce or explain the failure to produce the mother of the deceased child, who presumably could have testified to the time appellant took charge of the child, the condition of the child at that time, and the treatment of the child during the earlier part of the twenty-four hours during which the fatal injuries were inflicted, raises a reasonable doubt as a matter of law under the rule quoted above from Waldon v. State.

The evidence being insufficient, the conviction is set aside and the judgment is reformed to show an acquittal. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15.

      . The State also asserts that the evidence of appellant’s statement at the scene that the child fell down the stairs constituted proof of fabrication. Although Doctor Hollander testified that not all of the child’s injuries could have been caused by such a fall (implying that some of them may have been so caused), Doris Moody testified on examination by the State that the child did fall down the stairs. The evidence on this matter does not significantly strengthen the State’s case.


author: CLINTON, Judge.

text:
    James Edward FLOURNOY, Appellant, v. The STATE of Texas, Appellee.
    No. 61859.
    Court of Criminal Appeals of Texas, Panel 2.
    Nov. 21, 1979.

      Norman Maples, Fort Worth, Ronald L. Goranson (on appeal only), Dallas, for appellant.
    Tim Curry, Dist. Atty., William Kane and J. R. Molina, Asst. Dist. Attys., Fort Worth, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from an order revoking probation and concomitant sentence to confinement for the offense of forgery by passing. Because an inordinate number of similar appeals are being brought to the Court, we have determined to review here important concepts that are at work in a probation revocation proceeding. To revisit them now, in the context of this matter, reminds us all of the rather limited scope of review available in this Court in an appeal against an order of a trial court revoking probation.

First, the factual setting: Four years and some seven months after being placed on probation for a five year period, appellant was arrested and charged with aggravated assault. When that occurrence came to the attention of his probation officer, he read an offense report concerning it and then put in motion the revocation procedures. The motion to revoke alleged a violation of four conditions:

That he commit no offense, by committing the aggravated assault;
That he report as directed, by failing to report during identified months;
That he pay a probation fee in a stated amount per month, by failing to pay it for identified months:
That he make restitution in a stated amount per month, by failing to pay it for identified months.

During the course of the hearing on its motion the State waived the first alleged violation. At the end of the hearing the trial court pronounced its findings that appellant had violated the other three conditions in particularized respects, and continued the cause for subsequent sentencing. On the later setting the trial court first announced it was reforming the judgment to eliminate the allegations and its findings with respect to failure to make payments of the probation fee and for restitution. Thus, the order revoking probation is based solely on findings of failure to report during two months in 1974, three months in 1975, three months in 1976 and January 1978, and in the face of undisputed reporting as required in every month thereafter through September 1978.

Second, the legal backdrop: Almost from the occasion of its first being stated in Baker v. State, 151 Tex.Cr.R. 454, 209 S.W.2d 769 (1948), that granting probation — in a nonjury trial — “rests entirely within the sound discretion of the trial court” has become axiomatic. Exercise of that discretion is “absolute and unreviewa-ble,” Saldana v. State, 493 S.W.2d 778 (Tex.Cr.App.1973). When probation is granted, the trial court “extends clemency” and creates a relationship that is, “in a way, contractual — that is, the court agrees with the convict that clemency by way of probation will be extended if he will keep and perform certain requirements and conditions, the violation of which will authorize the revocation of the probation,” Wilson v. State, 156 Tex.Cr.R. 228, 240 S.W.2d 774, 775 (1951), Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59, 60 (1955), Bradley v. State, 564 S.W.2d 727, 729 (1978). Unlike most contracts, however, terms and conditions of a probation pact are subject to unilateral modification by the trial court, Article 42.12, Section 6, V.A.C.C.P. Furthermore, the trial court may initiate an examination of contractual compliance or violation on the part of the probationer by causing his arrest and requiring his appearance at a hearing to revoke the agreement, Section 8(a), ibid. Amid trappings of due process protections, Whisenant v. State, 557 S.W.2d 102, 104-105 (Tex.Cr.App.1977), upon conclusion of the hearing, the trial court “may either continue, modify, or revoke the probation,” id.

Noteworthy is that in providing the three alternative courses of action the Legislature made not the slightest suggestion of standards or guidelines to inform the discretion of the trial court, as it did in empowering the original grant of probation.

Third, the evidentiary concept: Due process considerations dictate, inter alia, that some reasonable measure be used to test sufficiency of evidence adduced to support allegations of violations and the findings thereon. After some experience in dealing with the problem, this Court adopted a preponderance of the evidence degree of proof in Scamardo v. State, 517 S.W.2d 293, 297-298 (Tex.Cr.App.1974), and has continued to adhere to that measure, e. g., Keel v. State, 544 S.W.2d 151 (Tex.Cr.App.1976), declining to reexamine it as recently as Williams v. State, 586 S.W.2d 883 (Tex.Cr.App.1979).

Here, relying on the doctrine announced in Hartsfield v. State, 523 S.W.2d 683, 685 (Tex.Cr.App.1975) and followed in Davis v. State, 563 S.W.2d 264, 266 (Tex.Cr.App.1978), appellant points to testimony that five probation officers serviced Tar-rant County probationers. But, as the State points out and the record otherwise shows, appellant concedes missing January 1978 and “a few times” before then. While his concessions are not, perhaps, as strong as Greathouse v. State, 491 S.W.2d 149 (Tex.Cr.App.1973), cited by the State in its brief, the evidence as a whole is ample enough to preponderate in favor of and to support the findings of the trial court. Espinoza v. State, 486 S.W.2d 315 (Tex.Cr.App.1972), Barber v. State, 486 S.W.2d 352, 354 (Tex.Cr.App.1972), Carnes v. State, 478 S.W.2d 940 (Tex.Cr.App.1972); see Isabell v. State, 494 S.W.2d 572, 573 (Tex.Cr.App.1973). Thus, as an evidentiary matter, a violation of a condition of probation has been shown with the sufficiency required by due process protections.

Fourth, the discretionary concept: Still, though it be satisfactorily proven that one or more conditions of probation have been violated, the three statutory alternatives of continuation, modification or revocation of probation remain for the trial court to determine—again, in its discretion. Wallace v. State, 575 S.W.2d 512 (Tex.Cr.App.1979), Beckworth v. State, 551 S.W.2d 414, 416 (Tex.Cr.App.1977), Barber v. State, 486 S.W.2d 352, 354 (Tex.Cr.App.1972), Kelly v. State, 483 S.W.2d 467, 471 (Tex.Cr.App.1972) (Concurring opinion), Gossett v. State, 162 Tex.Cr.R. 52, 282 S.W.2d 59, 60 (Tex.Cr.App.1955), Dunn v. State, 159 Tex.Cr.R. 520, 265 S.W.2d 589, 591 (Tex.Cr.App.1954). While it has been said that “a trial judge is not accorded absolute discretion in the decision to revoke,” Scamardo v. State, supra, 517 S.W.2d at 297, that statement is usually made in a context of some evidentiary or procedural shortcoming, just as it was in Scamardo, in Wester v. State, 542 S.W.2d 403, 405-406 (Tex.Cr.App.1976), in Franco v. State, 552 S.W.2d 142 (Tex.Cr.App.1977) and many similar cases.

Yet, when the finding of a violation of a condition of probation is supported by a preponderance of the evidence and procedural problems are not raised, the discretion of the trial court to choose the alternative of revocation is at least substantially absolute. That decision by the trial court , is made by one who is on the scene, so to speak, who more often than not entered into the contract of probation with the accused, who had one or more contacts with or reports concerning the probationer, who observed the probationer during court appearances—in short, one who is more intimately familiar with the probationer than we who have only a dim profile drawn from a cold record before us. Thus, it is made in unique circumstances that truly are not susceptible to duplication on appeal.

This Court, therefore, early on adopted and regularly applies the credo: “The only question legitimately before this Court on a probation revocation proceeding is whether or not there was an abuse of discretion in the trial court,” Isabell v. State, 494 S.W.2d 572, 573-574 (Tex.Cr.App.1973). When the proceedings are regular and the violation is properly proven, the question answers itself. We simply are not likely to substitute the collective judgment of members of the Court for the exquisite exercise of discretion by the trial court — as indeed we should not.

Thus, though in this case some may reasonably believe it unfair to withdraw probation for failure to report on occasions scattered back over a period of four years, after all other allegations of misconduct were not sustained for one reason or another, the fact is that the motion to revoke, apparently triggered by the aggravated assault charge and arrest, was filed within five or six weeks. We have not had pointed out to us, nor have we found, any prohibition against a motion to revoke probation alleging every known purported violation occurring within the probationary period. To the contrary, Article 42.12, Section 8, V.A.C.C.P., expressly provides, “At any time daring the period of probation the court may issue a warrant for violation of any of the conditions of the probation .,” and a subsequent arrest on order of the court rendered within the period of probation is in conformity with that provision even though there is a delay in reporting the alleged violation to the court, Miller v. State, 168 Tex.Cr.R. 570, 330 S.W.2d 466, 469 (1959) and Bobo v. State, 479 S.W.2d 947, 949 (Tex.Cr.App.1972). That first alleged violation was waived by the State and two others were not upheld by the court below do not preclude the trial court from revoking probation on the single allegation that was supported by a preponderance of the evidence, Hilts v. State, 476 S.W.2d 283, 284 (Tex.Cr.App.1972). However, whether the trial court should have done so on that violation alone is just such a matter of discretion that this Court will not disturb.

The allegations respecting failure to report as required having been sustained by a preponderance of the evidence, probation was susceptible of being revoked by the trial court. Procedures were otherwise regular. In these circumstances this appeal, and many others just about like it, is practically an exercise in futility, for we simply cannot say that the trial court abused its discretion in revoking rather than modifying or continuing probation.

The judgment is affirmed.

DOUGLAS, J., concurs in result.

      . The testimony of the probation officer to this effect is not inconsistent with the gratuitous statements of the judge of the trial court following it: “I am the one that either says that a petition for revocation shall be filed or shall not be filed. ... I will tell you this, that where a defendant gets behind financially as this man has, more than likely — and the . customary procedure, is that I file a petition to revoke his probation before the probation is up. . This is a procedure that the Court brings itself, not a procedure that this man or the Probation Office brings. I am the one that brings it. This is between me and the probationer. That is the way our procedure follows.” (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . The trial court explained, “I am in agreement with you [defense counsel] about mistakes being made and I’m going to disregard that allegation in the petition and the judgment will be reformed at this time. I will strike the findings of facts and conclusions of law at the time the probated sentence was revoked with reference to paragraph three . . . alleging non-payment.”

      . That discretion is to be informed, however, by “satisfaction . . that the ends of justice and the best interests of the public as well as the defendant will be subserved thereby,” Article 42.12, Section 3, V.A.C.C.P.

      . “The clemency extended by the court is upon conditions contractual in nature, the.probationer accepting the clemency under the conditions imposed.”

      . “The relationship between the probationer and the court is contractual in nature.”

      . “The court having jurisdiction of the case . . . may, at any time, during the period of probation alter or modify the conditions . . ”

      . See note 3, supra.

      . Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), Gagnon v. Scarpelli, 411 U.S. 778, 785, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656: “Both the probationer . and the State have interests in the accurate finding of fact and the informed use of discretion — the probationer ... to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community.”

      . That is, “that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation.”

      . Probation office records offered to show failure to report as directed may not be sufficient when the record does not show whether the probationer reported to some other probation officer during the months in question.

      . Having found sufficient proof of the violation, we are not presented here with the question of an abuse of discretion in revoking probation on less than a preponderance of the evidence, as in Battle v. State, 571 S.W.2d 20, 22 (Tex.Cr.App.1978).

      . “There was sufficient evidence for the trial judge to conclude that the appellant had broken the contract he made with the court . [so] . . . the trial judge did not abuse his discretion by entering the order revoking appellant’s probation.”

      . “A hearing upon a motion to revoke probation is addressed to the trial court’s discretion in determining whether the probation shall be revoked or continued.”

      . As the trial court below remarked, “This is between me and the probationer,” see note 1, supra.

      . Of particular evaluation for the trial court in the exercise of discretion in cases such as this is the matter of justification or excuse advanced by a probationer for his failure or omission. Statements, as here, that the probationer did not report because “I didn’t have the money or overlooked it;” as in Beckworth v. State, supra, that the probationer had disentangled himself from the root of his alcohol problems; as in Craig v. State, 586 S.W.2d 883 (Tex.Cr.App.1979) that rules of the Cenikor program, with which he had been directed to conform as a condition of probation, were too restrictive in his situation — those matters are better left solely to determination by the trial court in choosing the best alternative consequence of violating a condition of probation.

      . The motion alleges the assault was committed September 3, 1978, but elsewhere that date of September 23 is given; the motion was filed October 19, 1978 and served on appellant the following day.

      . The complaint here is not for denial of a speedy hearing once the motion to revoke is filed; the right to a swift adjudication after order for an arrest is no longer questioned, Fariss v. Tipps, 463 S.W.2d 176 (Tex.1971); Hilts v. State, 476 S.W.2d 283 (Tex.Cr.App.1972); McClure v. State, 496 S.W.2d 588 (Tex.Cr.App.1973). Indeed, the constitutional requirement has been implemented legislatively by recent amendment providing a hearing within twenty days after a jailed probationer moves for one, Article 42.12, Section 8(a), V.A.C.C.P. Thus, the contention that delay from January 1978 until October 1978 in filing motion to revoke constitutes a violation of due process is without merit.

      .Appellant’s contention that the trial court erred in denying his request to recall the probation officer just before the trial court was to pronounce sentence presents nothing for review for there was neither an offer of proof nor bill of exception indicating what testimony would have been adduced. Ross v. State, 523 S.W.2d 402, 404 (Tex.Cr.App.1975).


text:
    Joseph William LEE, Appellant, v. The STATE of Texas, Appellee.
    No. 62202.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 21, 1979.
    Ronald G. Mock, Carol S. Vance, Dist. Atty., Kristen E. Moore and James S. England, Jr., Asst. Dist. Attys., Houston, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from an order revoking appellant’s probation and concomitant sentence to confinement in the Texas Department of Corrections. Regularity of original and revocation proceedings is not challenged.

At the outset, we are confronted with fundamental error that requires reversal in the interest of justice. Article 40.09(13), V.A.C.C.P.

The information to which appellant pled guilty purports to charge one variety of the offense of forgery, and alleges in pertinent part that appellant:

“ . . . with intent to defraud and harm, forge the writing duplicated below by possessing it with intent to utter it and while knowing it was forged.”

That an indictment or information alleging this kind of forgery which fails to allege that the writing purporting to be the act of another “who did not authorize the act” is fundamentally defective is now well settled. Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979) (on motion for rehearing); Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979) (on motion for rehearing).

Furthermore, it is well settled that a fundamentally defective indictment or information may be collaterally attacked on appeal from a revocation of probation. Rejcek v. State, 545 S.W.2d 164 (Tex.Cr.App.1977); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Accordingly, the judgment is reversed and the information herein is ordered dismissed.


author: ROBERTS, Judge.

text:
    Ex parte Cecil Lewis WILLIAMS.
    No. 62646.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   ROBERTS, Judge.

This is a post-conviction application for writ of habeas corpus. The petition alleges that the applicant was denied credit for 106 days’ jail time spent prior to his transfer to the Texas Department of Corrections. The State does not disagree with appellant’s contention that he is entitled to credit for such jail time. Accordingly, we hold that the applicant is entitled to this relief.

Applicant also complains of the loss of “good time” credits for time spent in county jails. Article 42.03, Section 4, V.A.C.C.P., states that “[T]he Department of Corrections shall grant the defendant such credit for good behavior for the time spent in jail as he would have earned had he been in the custody of the department.” Applicant asserts that he was denied any good time credit because of one instance of misconduct while he was in the county jail. Article 61847, V.A.T.S., in pertinent part provides, “ . . . [f]or each sustained charge of misconduct . . . any part or all of the commutation which will have accrued in favor of the prisoner to the date of said misconduct may be forfeited and taken away . . Similarly, Article 6181-1, Section 4, V.A.T.S. (replacing Article 61847), in pertinent part provides, “ . . . if during the actual term of imprisonment in the department, an inmate commits an offense or violates a rule of the department, all or any part of his accrued good conduct time may be forfeited by the director.”

It is applicant’s contention that since he was given no good time credit subsequent to the commission of a single act of misconduct for which all of his county jail good time was forfeited, his rights under the above-quoted statutes were violated. This is so, he claims, because the statutes speak of the forfeiture of good time already accrued. Because applicant was denied credit also for whatever good time he might have accumulated after his misconduct, that is to say, credit unaccrued at that time, he would have us hold that his rights were violated by the Texas Department of Corrections.

Additionally, applicant claims violation of the equal protection clause of the Constitution because of the disparity in treatment of prisoners in county jails and those in the actual custody of the Texas Department of Corrections. Applicant notes that, “The director may, however, in his discretion, restore good conduct time forfeited . subject to rules and policies to be promulgated by the department.” Article 6181-1, Section 4, V.A.T.S.

Applicant alleges that it is the current policy of the Texas Department of Corrections to restore all or part of a prisoner’s good time credit if there has been no misconduct by that prisoner for a period of six months. Since the transcript forwarded to us contains a finding of the trial court that there are no controverted, previously unresolved facts material to the legality of applicant’s confinement and the State, in its answer, does not take issue with it, we shall accept applicant’s statement that the Texas Department of Corrections regulations are as he alleges them to be. Applicant states that this policy of restoring good time is only applied if the time is lost due to misconduct of a prisoner in the actual custody of the Texas Department of Corrections. It is his claim that such a differentiation is violative of Article 42.03, Section 4, V.A.C. C.P.

We see no reason why an inmate should forfeit all good conduct time accrued subsequent to one incident of misconduct in the county jail, when the same standard is not applied to time served in the actual custody of the Texas Department of Corrections. We recognize that the award or denial of good time is within the discretion of the director of the Texas Department of Corrections and we are not to be understood as limiting such discretion. We merely hold that the exercise of this discretion must not be circumscribed by an inflexible rule which prescribes different and less favorable consideration for a Texas Department of Corrections inmate who has served part of his term in a county jail. Accordingly, applicant is entitled to have considered, for purposes of determining good time credit, the period of time served in jail subsequent to the commission of the one above-mentioned incident of misconduct.

Relief granted.


author: DOUGLAS, Judge.

text:
    Ex parte Thomas Henry MATHIS.
    Nos. 62657, 62658.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1979.

      Paul G. Johnson, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

These are applications for writs of habeas corpus filed pursuant to Article 11.07, V.A. C.C.P.

Mathis was convicted in Cause No. F76-7354QM in the 194th Judicial District Court of Dallas County for the offense of forgery by passing. The punishment was assessed by the court at ten years. The indictment reads as follows:

“ . . . TOM HENRY MATHIS hereinafter styled defendant, on or about the 16th day of October in the year of our Lord One Thousand Nine Hundred and 75 in the County and State aforesaid, did then and there unlawfully knowingly and intentionally with intent to defraud and harm, forge, by passing to Billy Jack Hubbard a writing which then and there purported to be but was not the act of E. M. Cox, said writing being of the tenor following: [instrument omitted], said defendant knowing the same to have been forged, . . . ”

Mathis urges that this indictment is fundamentally defective under the holdings of Minix v. State, 579 S.W.2d 466 (Tex.Cr.App. 1979), and Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979), for its failure to allege that E. M. Cox did not authorize the act. We agree.

Petitioner was also convicted in Cause No. F76-6606QM in the same court of forgery by passing with punishment assessed by the court at ten years.

Mathis also contends that this indictment was fundamentally defective under Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979), for its failure to allege that the writing passed was the act of another “who did not authorize that act.”

The indictment shows otherwise. It recites that Mathis

“ . . did unlawfully, knowingly and intentionally with intent to defraud and harm, forge, by passing to Lucille Miller a writing which then and there purported to be but was not the act of E. M. COX, who did not authorize the act of its execution and delivery, said writing being of the tenor following: [instrument omitted] said defendant knowing the same to have been forged, . . . ” (Emphasis supplied).

Accordingly, the relief sought from the judgment of conviction in Cause No. F76-7354QM is granted. The relief sought from the judgment in Cause No. F76-6606QM is denied.


author: HUTCHINSON, Justice.

text:
    Irene CHILES, Appellant, v. AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 8683.
    Court of Civil Appeals of Texas, Texarkana.
    Aug. 21, 1979.
    Wayne R. Shahan, Yarborough, Hinds, Shahan & Snyder, Dallas, for appellant.
    Robert M. Greenberg, Dallas, for appel-lee.
   HUTCHINSON, Justice.

This is a suit on an insurance policy providing coverage up to $5,000.00 for fire losses to unscheduled personal property. Appellee, Aetna Casualty and Surety Company, issued to appellant, Irene Chiles, its Texas Standard Homeowners Policy with its Homeowners Broad Form-Tenant attachment insuring appellant’s unscheduled personal property for loss by fire for a term of three years. At the time of the issuance of the policy appellant resided in a rented home located at 2135 Denton Drive, Carroll-ton, Texas, and this was shown as her address on the policy. At the time of the loss giving rise to this suit appellant was residing at 1420 West 3rd Street, Carrollton, Texas, and the claimed loss occurred at that address. Pertinent portions of the policy are:

Page 1”
“HOMEOWNERS BROAD FORM-TENANT
“. . . Unless otherwise provided, this insurance shall apply only at the premises designated on Page 1, as the Described Dwelling . . . (Emphasis added).
“OFF PREMISES COVERAGE — Subject to the provisions and conditions of this policy and the exclusions and limitations therein, Coverage B also covers, as additional insurance, unscheduled personal property (except property usually rented to others) owned, worn or used by the insured, including members of his family of the same household, anywhere in the world.
Such Off Premises Coverage, however, shall be limited to $1,000 or 10% of the Limit of Liability applicable to Coverage B, whichever is greater. . . . ” (Emphasis added).

Following the fire loss, appellee denied liability under the policy except for $1,000.00, the amount of the off-premises coverage.

Trial was to a jury and appellant’s loss was found to be in the sum of $4,591.00. The trial court, however, upon appellee’s motion, entered judgment for appellant for $1,000.00 with interest at the rate of 9%.

Appellant here by three points of error contends that the off-premises limitation provision of the policy was inapplicable because policy spaces for the insertion of the “Lot Block” and “Addition” of the Described Dwelling were left blank by the appellee and that by doing so appellee waived any right it might have to limit appellant’s loss to the off-premises coverage.

In considering this appeal we are mindful of the fact that appellee drafted, supplied the language and filled in or omitted filling in the spaces of the policy sued upon. The failure to complete the section designated as Described Dwelling cannot be charged against appellant and might well have been considered by her as a waiver of the premises restriction set forth in other portions of the policy. The policy here sued upon was for a period of three years. It was foreseeable that the insured tenant was likely to move the insured personal property to another residence before the expiration of the policy period. In addition to filling in the “Lot Block” and “Addition” sections of the policy, appellee could have easily included in the policy language restricting coverage to a definite location and terminating coverage in the event of the “moving”, “change of residence” or “change of domicile” of the policy holder. Appellee’s policy did not so do. Too, appellant, a lay person, could easily have interpreted the off-premises coverage provisions “as additional insurance” on items of her personal property taken on a trip, left at a repair shop, at a cleaners or in transit from one place to another and not as a limitation of her coverage in a different but like residence.

We therefore find and hold that the policy as written is ambiguous and that such ambiguity or doubt as to its meaning must be construed strictly against the appellee and in favor of appellant. The language of the policy will support an interpretation which imposes liability on the appellee and such interpretation should be adopted. United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048 (1942); Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 (1951); Indemnity Marine Assurance Co. v. Citizens National Bank, 463 S.W.2d 290 (Tex.Civ.App. Waco 1971, no writ); Freeman v. Crown Life Ins. Co., 580 S.W.2d 897 (Tex.Civ.App.Texarkana 1979, writ filed).

The judgment of the trial court is reversed and here rendered for appellant in the sum of $4,591.00 with interest thereon from March 21, 1974, to April 11, 1978, at the rate of six percent (6%) per annum and thereafter at the rate of nine percent (9%) per annum until paid.

Reversed and rendered.


author: NYE, Chief Justice.

text:
    Charles MILES, Appellant, v. ROYAL INDEMNITY COMPANY and Clyde Hoke, Appellees.
    No. 1381.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 30, 1979.
    Opinion on Motion for Rehearing Oct. 22, 1979.
    Rehearing Denied Nov. 15, 1979.

      Melvin A. Krenek, Beckmann, Stanard & Olson, San Antonio, for appellant.
    Thomas M. Andrews, Aransas Pass, for appellee; Charles W. Kelly, Ross, Griggs & Harrison, Houston (on rehearing).
   OPINION

NYE, Chief Justice.

This is a suit brought by the insured boat owner, Charles E. Miles, against the insurer, Royal Indemnity Company, to recover the cost of repairs to his pleasure boat which sank at her moorings. Royal Indemnity defended under the “unseaworthiness” exclusion in the “all risks” yacht insurance policy. The jury answered special issues in favor of the boat owner, Miles. The trial judge however, granted the insurance company’s motion for judgment non obstante veredicto and entered a take nothing judgment for Miles. Miles appeals.

Miles purchased a used 38 foot Chris Craft Commander cabin cruiser called “Alyson” for $12,000.00 for his family’s use at their summer home in Rockport, Texas. Miles applied to Royal Indemnity Insurance Company for an insurance policy to cover the boat. The insurance company sent a marine surveyor to examine the boat and to issue a report to Royal Indemnity concerning the insurability of the boat. The surveyor found the boat in excellent condition and returned a favorable report with two minor recommendations: 1) that Miles repair the bilge blowers; and 2) tighten the port stuffing box. These repairs were made, and Royal Indemnity issued an “all risks” insurance policy to Miles insuring the boat during a one-year term commencing August 14, 1975 for a maximum sum of $26,000.00 in the event of total loss. The policy, which provided coverage “(a)gainst all risks of physical loss or damage except as may be excluded by provisions elsewhere in this policy or by endorsement hereon.” The exclusion relied on by the insurance company for denying coverage was: “(I)oss, damage or expense caused by failure of Assured (Miles) to maintain the Yacht in a seaworthy condition . .

The boat “Alyson” was docked at Key Allegro near Rockport. Miles hired a Mr. Clyde Hoke, a boat repairman who resided in Rockport, to keep the boat in shape and to make repairs. By the time the boat was finally docked at Key Allegro, Miles had invested approximately $21,900.00 in repairing and refinishing the hull, overhauling the engine and shafts, and investing in new equipment. During the next year, Miles’ total investment in the Alyson exceeded $30,000.00. On July 19, 1976, during routine repairs repairman Hoke removed the starboard engine and sent it to San Antonio for repairs. Three days later, on July 24, 1976, the boat sank.

Miles duly notified Royal Indemnity Company within three days of the loss and submitted the necessary proof of loss forms to the company. Thereafter, Miles conferred with Jerry Jordan, the independent insurance agent who had sold Miles the insurance policy; William S. Eanes, the Claim and Loss Supervisor for Royal Indemnity; and James L. Murchison, a marine surveyor who surveyed the boat on behalf of Royal Indemnity. Believing that the damage to the boat (caused by the sinking) was unquestionably covered under the “all risks” marine insurance policy in question, Miles raised the boat and employed a Mr. Lamar Fuller to proceed with the necessary repairs. Three months after the loss, the insurance company sent Miles a letter stating that coverage for the loss would be denied because someone had left the seacock open, and, therefore, the boat was not seaworthy at the time it sank.

The underlying suit was actually a consolidation of two suits. The original plaintiff, boat repairman Clyde Hoke, sued Miles to recover $1,704.37, which represented the unpaid balance due for repair work Hoke had completed on the boat prior to the time she sank. Miles then filed a counterclaim against Hoke alleging that his negligence (in failing to close a seacock) had caused the boat to sink. In addition, Miles filed a third-party action against Royal Indemnity seeking to recover his loss, under the insurance policy, caused by the sinking. In addition, Miles alleged, that Royal Indemnity was also liable for treble damages under the Texas Deceptive Trade Practices Act because the “agents” of Royal Indemnity had affirmatively represented to him that post-sinking repairs to the boat would be covered under the policy.

After the close of Hoke’s and Miles’ evidence, the trial court granted Royal Indemnity’s motion for directed verdict against Miles on his cause of action under the Texas Deceptive Trade Practices Act. Thereafter, Royal Indemnity presented additional evidence and the remainder of the case was submitted to the jury. In response to special issues, the jury found, in relevant parts, as follows: 1) that “Hoke (the repairman) failed to close the through-hull fitting” on the occasion in question; 2) that such failure was not negligence; 3) that immediately prior to the boat’s sinking, the boat was in a seaworthy condition; 4) that the reasonable and necessary costs of repair to restore the boat to its condition prior to the sinking was $19,894.00; and 5) that the reasonable cost for storage for the boat during the time it was repaired was $1,600.00.

After the jury’s verdict was received by the court, the trial judge denied Miles’ motion for judgment on the verdict and granted Royal Indemnity’s motion for judgment non obstante veredicto. Royal Indemnity’s motion was based on the following three independent grounds: 1) The boat was in an unseaworthy condition, as a matter of law, prior to the time she sank because the seacock had been left open. 2) In the alternative, the evidence conclusively established that the boat was properly moored under normal circumstances when she sank and Miles failed to rebut the presumption that the Alyson sunk as a result of unseaworthiness. 3) There is no evidence in the record upon which the jury could have found the proper amount of damages and, therefore, the verdict of the jury was not supported by any evidence. The trial court’s take nothing judgment did not specify the reason for granting Royal Indemnity’s motion.

Miles’ first point of error is that the trial court erred in granting Royal Indemnity’s motion for judgment non obstan-te veredicto. In considering this point, we will keep in mind the familiar rules governing the review of cases in which the trial judge has granted a judgment non obstante veredicto. First, as a general rule, the juries are the exclusive judges of the credibility of witnesses and the weight to be given to their testimony. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962). In this regard, Rule 301, Texas Rules of Civil Procedure, requires the trial court’s judgment to conform to the verdict “[provided, that upon motion and reasonable notice the court may render a judgment non obstante veredicto if a directed verdict would have been proper.” To sustain the action of the trial court in granting a motion for judgment notwithstanding the verdict, it must be determined from the record as a whole, that there is no evidence upon which the jury could have made the findings relied upon. In considering such motion, all testimony must be viewed in the light most favorable to the party against whom the motion was sought and every reasonable intendment deduciable from the evidence is to be indulged in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962); Burt v. Loehausen, 151 Tex. 289, 249 S.W.2d 194 (1952); Ramirez v. National Standard Ins. Co., 563 S.W.2d 837 (Tex.Civ.App.—Corpus Christi 1978, no writ); Newitt v. Camden Drilling Co., 552 S.W.2d 928 (Tex.Civ.App.—Corpus Christi 1977, no writ).

As a general rule, an “all risks” policy creates a special type of coverage. Recovery under such a policy is generally allowed for all losses of a fortuitous nature in absence of fraud or other intentional misconduct of the insured, unless, of course, the policy contains a provision excluding the specific loss from coverage. (See Anno., Coverage Under All Risks Yacht Policy, 75 A.L.R.3d 410 (1977); Anno., Cover Under “All Risks” Insurance, 88 A.L.R.2d 1122 (1963).) Brownsville Fabrics, Inc. v. Gulf Ins. Co., 550 S.W.2d 332 (Tex.Civ.App.—Corpus Christi 1977, writ ref. n. r. e.); Imperial Insurance Co. v. Ellington, 498 S.W.2d 368 (Tex.Civ.App.—San Antonio 1973, no writ). Here Royal Indemnity relies upon the “unseaworthiness” exclusion. In such a situation, Miles would have the burden of proof to negative the “unseaworthiness” exclusion contained in the policy which was plead as a defense by Royal Indemnity. Sherman v. Provident American Ins. Co., 421 S.W.2d 652, 654 (Tex.1967). The relevant special issues, definitions, and instructions were to this effect.

The term “unseaworthiness” has no absolute meaning, but varies with the circumstances and the exceptional features of the case known to both the insured and the insurer. There are different degrees of seaworthiness, depending upon the character of the vessel, its construction, its navigation and service required, length and nature of the voyage, the season of the year, its trade and other factors. The degree of seaworthiness may also vary in terms of the use being made of the vessel at the particular time in question. See 37 Couch on Insurance §§ 1646-1689 (2d Ed. 1962). In order to be seaworthy, the ship and her equipment must be reasonably fit for their intended purpose. Cf. Molis v. Ore Navigation Corp., 382 S.W.2d 290, 291 (Tex.Civ.App.—Houston (1st Dist.) 1964, writ ref’d n. r. e.). Seaworthiness means the ability to withstand the ordinary stress of wind, wave, and other weather which the vessel might normally be expected to encounter— in other words, to stay afloat in the absence of abnormal conditions. Mathis v. Hanover Ins. Co., 127 Ga.App. 89, 192 S.E.2d 510, 511 (1972).

The lengthy trial of this case resulted in testimony comprising some three bound volumes of the statement of facts totaling approximately 1,000 pages. There is detailed testimony in the record concerning the condition of the boat, including its condition from the time Miles purchased the boat in March of 1975 to the date the boat sank, July 24, 1976. We have found ample evidence in the record that the boat was generally in a seaworthy condition immediately prior to its sinking. Gene Reddell, the yacht broker through whom Miles purchased the boat, testified that Miles had requested him to personally observe the repair work done to the boat prior to the time Miles moved and moored the boat at Key Allegro. Reddell described the repair work as good and stated that the boat was then mechanically sound and seaworthy.

The marine survey conducted by James L. Murchison, on behalf of Royal Indemnity, stated that the boat was in excellent condition. He recommended only two minor repairs which were subsequently completed by Miles. Based upon this survey, Royal Indemnity issued policy No. ROY 021450, an “all risks” policy effective from August 14, 1975, to August 14, 1976.

Soon after the boat was docked at Key Allegro in July of 1975, Miles employed Clyde Hoke to continue making improvements to the boat and to keep the boat in mechanically sound condition. Hoke testified that Miles paid him approximately $100 to $150 per month for his services. In addition, Hoke testified in detail concerning his services in maintaining the boat in “tiptop condition.” The only mechanical problem which Miles had difficulty correcting concerned an overheating problem in the starboard engine. This engine had been ordered removed from the boat on at least two occasions and transported to other cities for necessary repairs.

The actual seaworthiness of the boat, which focused upon the starboard seacock, became the only real controversy between the parties. The seacock is a through-hull valve designed to allow sea water to come into the engine compartment for the purpose of cooling the engine when it is in operation. The testimony indicates that the through-hull hole in question was one and one-quarter inches in diameter which was reduced further with a pipe and then a hose to a one inch diameter hole. The seacock valve has a set lock with a wing nut to allow the valve to be completely tightened. When the engine is running, the seacock must be open in order for the sea water to properly circulate and cool the engine.

Hoke testified that on Monday, July 19, 1976, he removed the starboard engine and sent the engine to San Antonio for repairs. Hoke testified that he stuffed a shop rag in the hose and than clamped the end of the hose. He did not turn off the seacock valve. Hoke described the additional work he had done on the boat after the engine was removed and stated that he last saw the boat afloat on the following Friday (July 24). At that time, he stated that the rag was still in place and the boat was dry. The boat sank the following Saturday evening, about 32 hours after Hoke last checked her.

The testimony was undisputed from Hoke and other expert boat repairmen that stuffing rags into through-hull openings is a common and acceptable practice used by boat mechanics for temporary repairs. Hoke testified that on one previous occasion (June of 1976, when the starboard engine had been removed) he had used this same procedure with a rag. No sea water had entered the boat through the seacock on that occasion. Hoke recounted in detail the manner in which he normally stuffed a rag into such a hose in order to hold it tightly. He described folding the rag back and forth, stuffing it through the hose with a screwdriver to make it tight and then clamping the end of the hose. He testified that after that procedure, “I don’t know of anybody that could ever pull one out by hand after I put it in there either, because I can’t.”

The insurance company takes the position that the undisputed evidence established that the seacock was open and unobstructed in any manner. We do not agree. As a matter of fact, the evidence was otherwise. The stuffing of a rag into a seacock in the manner described by Hoke did not render the moored pleasure vessel unsea-worthy as a matter of law. The boat was docked at the time it sank with one of its engines removed. There is evidence in the record from several witnesses that, under normal conditions, an open seacock with a rag stuffed into a through-hull fitting is all that is necessary to prevent sea water from entering the hole. No one testified that this procedure rendered a boat unseawor-thy. In fact, after the boat sank and was thereafter raised, she was towed to Ingle-side for repairs without incident. Several such rags were stuffed into various through-hull openings, and throughout that trip, no sea water entered the boat.

After all of the evidence had been introduced, the following definition of “seaworthiness” was submitted to the jury:

“seaworthiness means that a vessel and all its component parts are reasonably fit for the purposes for which they are intended. It does not mean perfect, or absolutely, but implies that a failure will not occur under normal circumstances reasonably to be anticipated.”

The court further instructed the jury that a vessel was presumed to be unseaworthy if she sank at her moorings and that, to rebut this presumption, Miles was required to “show the actual cause of the sinking to have been something other than an unsea-worthy condition.” The jury found from a preponderance of the evidence that immediately prior to the sinking of the vessel on July 24,1976, the vessel was in a seaworthy condition. There is evidence in the record, both direct and circumstantial, from which it can reasonably be inferred that the sinking resulted from some fortuitous event. No other issues as to the exact cause of the sinking were requested by either party. No one complained of the form in which the special issue was submitted to the jury, of the definition of unseaworthiness, or of the instructions.

The exception contained in the insurance policy, when plead as a defense, required the boat owner Miles to prove that immediately prior to the sinking, the boat in question was seaworthy. In this case, Miles was not required to prove exactly what caused the boat to sink, only that the sinking was of a fortuitous nature which the evidence shows that it was. If the boat was seaworthy just prior to its sinking, then the “all risks” marine insurance policy issued by Royal Indemnity would require the insurance company, under its contract with Miles, to pay Miles the reasonable and necessary costs of repair and storage of the boat.

The evidence and the jury’s answer to the seaworthiness issue establish to our satisfaction that the boat did not sink because of an unseaworthy condition. The insurance company’s reliance upon cases concerning “perils of the sea” marine insurance policies are not in point. The trial court erred in granting Royal Indemnity’s motion for judgment non obstante veredicto. See Chasse v. Newark Ins. Co., 109 R.I. 130, 282 A.2d 194 (1971); Anno., Coverage Under All Risks Yacht Policy, 75 A.L.R.3d 410 (1977).

We next consider whether there is competent evidence to support the jury’s determination of the reasonable cost of repairing the boat after it had sunk. Miles’ trial pleading alleged that the reasonable and necessary cost in Aransas County, Texas, of raising and restoring the boat to its condition prior to the sinking was $21,500.00. The jury found that $19,894.00 represented the sum of money which was reasonable and necessary to repair and restore the vessel to its condition prior to the sinking.

Royal Indemnity contends that the trial court properly granted the judgment non obstante veredicto on the ground that the jury’s answer to this special issue was unsupported by competent evidence because Fuller (who had repaired the boat) had not seen the vessel prior to the time she sank and was, therefore, incompetent to testify concerning what repairs were necessary to restore the boat to its pre-sinking condition. In addition, Royal Indemnity argues that Mr. Fuller’s estimate of the cost of repairs was based upon hearsay evidence because the surveyor’s repair report was never offered into evidence.

Lamar L. Fuller, the owner of North Shore Boat Works in Ingleside, who had been in the business of repairing boats for fifteen years, testified that he and his employees did the repair work necessary to repair the damages to the boat which resulted from the sinking. In substance, Fuller stated that: 1) he had initially inspected the boat on Monday following the sinking after she had been raised and the water had been pumped out of her; 2) his examination included an inspection of the hull, engine compartment, through-hull fittings and openings and other parts of the yacht; 3) it appeared to him that the boat had been maintained “in good condition, in comparison to other vessels”; 4) the actual cost of his repair work, including labor and parts, was $22,000.00; 5) such repairs were necessary to put the boat “back into serviceable condition or a condition such as it was prior to the sinking”; 6) the charges were reasonable in Aransas County and in San Patricio County; and 7) the cost of storing the boat was $95.00 per month which was a reasonable charge for storing boats in both Aransas County and San Pa-tricio County.

The testimony which Royal Indemnity contends renders Fuller’s testimony incompetent was elicited upon cross examination. Royal Indemnity’s attorney introduced into evidence a letter dated August 3, 1976, in which Fuller had itemized the proposed repairs and had calculated the estimated repair bill to be a total of $19,894.00 for the itemized repairs. Fuller testified that he had completed all the repairs itemized in this letter. Upon cross examination, Fuller testified that Mr. Murchison, the marine surveyor for Royal Indemnity, had come to his place of business in Ingleside to inspect the boat and to write up recommendations for the necessary repairs. Fuller than stated that he used the marine survey as a guide for the repair work itemized in the August 3 estimate he presented to Miles, and that he followed the surveyor’s recommendations concerning the repair work that was necessary to be done. The following exchange took place between Fuller and Royal Indemnity’s attorney:

(Q): “All right. Now if some of those pumps were already defective, already inoperable prior to the time the boat sank, it wouldn’t be necessary to replace those to put the boat back in the same condition it was in before the sinking, would it?
(A): Of course, I wouldn’t have any way of knowing. But if there was an item defective before the sinking, as I said, I wouldn’t know it.
(Q): AH right, sir.
(A): And it wouldn’t make a lot of difference. I would have to put it in anyway.
(Q): A1I right, sir. So, the point I’m trying to illustrate then, to get you to explain for us is: that this is not an estimate to put the boat back into the same condition as it was in before it sank, is it?
(A): Yes.
(Q): This is an estimate of what it would take to put the boat in first class condition, without regard to what its condition was before it sank?
(A): Well, of course, in my belief it’s putting it back in the condition pri- or to the sinking. There may be things that were different or wrong with the boat prior to the sinking that I would have no knowledge of.
(Q): That’s exactly the point, Mr. Fuller. You don’t know what the condition of it was before it sank, do you?
(A): No, sir.
(Q): So you wouldn’t know how to put it back in that same condition, would you?
(A): No, sir. Other than following the surveyor’s (the insurance company’s representative) recommendation.
(Q): All right, sir. And the surveyor’s recommendations, and your bids, are items that the boat needs at the time and place you see it, aren’t they?
(A): That’s correct.
(Q): All right, sir. So it’s entirely possible, as far as you know, that the air conditioning system needed replacing before it sank?
(A): That would be possible, yes.
(Q): And the only thing I’m asking you about is this: that if somebody is going to tell us that all of this was necessary as a result of the sinking, it’s got to be somebody other than you, hasn’t it?
(A): That’s correct. The surveyor.”

Fuller testified as an expert repairman. Neither in the trial nor on appeal does Royal Indemnity question his expert qualifications. Royal Indemnity is apparently complaining that Fuller’s testimony has no probative value because he had not personally inspected the boat prior to the time it sank, and that he had no personal knowledge of the exact condition of the boat and its equipment immediately prior to the sinking.

It is apparent from a fair reading of Fuller’s testimony in its entirety that his opinion concerning what repairs were necessary to restore the boat was based on the following factors: 1) his fifteen years experience in raising and repairing boats; 2) his personal inspection of the boat after it sank and 3) the report prepared by the surveyor in the presence of Fuller and Miles on behalf of Royal Indemnity. In spite of the fact that Fuller did not have knowledge of the Alyson’s precise condition prior to the time she sank, he testified on direct and cross examination to the effect that the repairs he had made were necessary to restore the boat to a serviceable condition.

Texas courts have followed the general rule that where it appears that an expert witness’ testimony is predicated upon both personal knowledge and upon hearsay, his testimony is admissible. Slaughter v. Abilene State School, 561 S.W.2d 789, 791 (Tex.1977); Loper v. Andrews, 404 S.W.2d 300, 305 (Tex.1966); Combined Ins. Co. of America v. Kennedy, 495 S.W.2d 306 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.); Gray v. Bird, 380 S.W.2d 908 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Kansas City v. Southern Railway Co. v. Frederick, 276 S.W.2d 332 (Tex.Civ.App.—Beaumont 1955, writ ref’d n. r. e.)

There can be no doubt that Fuller’s testimony was competent and thus, of probative force as to the reasonableness and the cost of actual repairs to the vessel made by his employees under his supervision. Fuller’s itemized estimate of the cost of repairs that he submitted to Miles was introduced into evidence. He testified that all of the items of repairs listed on the estimate had been completed. Fuller further testified to the effect that even if a particular listed item had been defective prior to the time the Alyson sunk, the items of repair or replacement that he completed would have been necessary as a result of the vessel’s sinking.

We are of the opinion that Royal Indemnity’s objections to Fuller’s testimony pertained more to its weight than to its admissibility. There is no merit to the objection that Fuller had not seen the boat prior to the time it sank and could not testify as to its precise condition at that time. There is ample, detailed evidence in the record concerning the condition of the boat from the time of Miles’ initial purchase, including details of his initial repair and restoration and its condition immediately preceding the time it sank. Miles had added extensive new equipment and had replaced and refinished most of the equipment in the boat. Many witnesses testified as to the boat’s condition prior to the time she sank, and that it was seaworthy. See North River Ins. Co. v. Rippy, 23 S.W.2d 853, 857 (Tex.Civ.App.—Fort Worth 1929, no writ); Milby Auto Co. v. Kendrick, 8 S.W.2d 743, 745 (Tex.Civ.App.—Galveston 1928, writ dism’d). See Pasadena State Bank v. Isaac, 149 Tex. 47, 228 S.W.2d 127, 129 (1950). There is no evidence of enhanced value of the boat in the record. Appellant’s point of error one is sustained.

Appellant specifically requested, during oral argument, that we not consider his second point of error which complains of the trial court’s action in granting Royal Indemnity’s motion for directed verdict against Miles’ cause of action under the Texas Deceptive Trade Practices Act, because if we were to sustain this point of error, a remand for a new trial on such action would be required. This request was granted.

The judgment of the trial court is hereby reversed and judgment is here rendered that Miles recover from Royal Indemnity the sum of $21,494.00, which represents the reasonable and necessary costs of repair and storage of the Alyson as found by the jury.

OPINION ON MOTION FOR REHEARING

Both Appellee, Royal Indemnity, and Appellant, Charles E. Miles, have filed motions for rehearing.

Royal Indemnity complains in essence that this Court avoided the stipulated facts and exceeded its authority by finding facts contrary to “the facts which were dealt with in the District Court and upon which the parties had agreed in the District Court.” Related to this complaint, Royal Indemnity contends that this Court erred by failing to hold that the boat “Alyson” was unseaworthy as a matter of law.

Contrary to Royal Indemnity’s assertion, this Court did not ignore the stipulated facts. Neither party stipulated to the effect that the starboard seacock had not been closed and remained entirely unobstructed by any other material, such as a shop rag. Appellant Miles’ theory of recovery against Hoke, the repairman, was that Hoke failed to turn off the seacock, which failure was negligence and the proximate cause of the sinking of the vessel. As stated in our original opinion, there is testimony in the record that Hoke, although he did not turn off the starboard seacock, did stuff a rag into the opening. Appellant Miles, in support of his contention that there was sufficient evidence to support the proximate cause issue and the negligence cluster, argued to the judge that:

“We have alleged that his failure to turn off the [seacock] was the proximate cause of the sinking of the vessel.
Stuffing the rag — that was an additional thing that he did. But we have alleged that the failure to close the valve was the cause of the sinking of the vessel. And thus far in the case, that’s the only thing that’s been shown as a cause of the sinking of the vessel.”

In response to special issues, the jury found that Hoke failed to close the through-hole fitting on the occasion in question, but that such failure was not negligence. As previously stated, other expert boat repairmen stuffed rags into through-hull openings as a common and acceptable practice.

We fail to see how statements made by appellant’s attorney, such as the one above quoted, require us to ignore the evidence in the record concerning the shop rag which had been stuffed into the seacock. Appellant’s cause of action as against Royal Indemnity was that he was entitled to recover under the “all risks” policy. The evidence that the shop rag had been stuffed into the seacock was not necessarily the controlling factual determination, but is rather eviden-tiary of the ultimate fact issue which is whether or not the Alyson was seaworthy immediately prior to the time she sank. As stated in our original opinion, the jury found the vessel seaworthy. This issue was submitted to the jury with appropriate instructions which neither party challenged on appeal.

Royal Indemnity also complains that this Court erred in not holding that the testimony of Lamar Fuller concerning the amount of money necessary to restore the Alyson to a condition she was in prior to her sinking was hearsay, because his testimony shows on its face that the only thing he knew about the condition of the vessel before the sinking was what he had been told by someone else. Royal Indemnity contends that Fuller could not testify that the repairs which were made were necessary as a result of the sinking because he had no personal knowledge of the condition of the vessel before she sank. Accordingly, Royal Indemnity contends that all of his testimony concerning the condition of the vessel before she sank was hearsay and, since his testimony was the only testimony in the record relating to the cost of repairs, the damage award is based exclusively upon hearsay, and therefor there is no evidence to support the jury’s verdict.

The distinction Royal Indemnity is attempting to point out on motion for rehearing is not clear. We are still of the opinion that Fuller’s testimony as an expert witness had probative value in determining the reasonable and necessary cost of repairs to the Alyson as a result of the vessel’s sinking.

Finally, Royal Indemnity presents the final complaint that this Court erred in reversing the trial court’s judgment (non ob-stante veredicto) and in awarding damages for storage of the Alyson. There is nothing in the record showing that Royal Indemnity objected to the special issue concerning storage costs on the ground that the special issue inquired into an amount which was not covered by the policy nor did Royal Indemnity’s motion for judgment non ob-stante veredicto state that the jury’s answer to that special issue should be disre-gardéd on the basis that such damages were not covered under the policy in question. There is nothing in appellee’s appellate brief by way of cross-point or any other statement stating that this is not an amount covered by the policy. While we note that the trial record does contain a special exception by Royal Indemnity challenging Miles’ pleadings on the basis that storage was not covered under the policy, there is absolutely nothing in the record to indicate that such special exception was ■brought to the trial court’s attention to be acted upon.

In addition, Miles’ motion for judgment on the jury’s verdict states as a grounds therefor that the costs of storage should be recovered pursuant to paragraph eight of the general provisions pertaining to the “all risks” policy in question. This assertion was not contradicted in any way by Royal Indemnity. It is too late for Royal Indemnity to bring this complaint to our attention on motion for rehearing. See: Wright v. Gernandt, 559 S.W.2d 864 (Tex.Civ.App.—Corpus Christi 1977, no writ). Royal Indemnity’s motion for rehearing is hereby overruled.

Miles, in his motion for “correction of judgment or for rehearing,” complains that this Court failed to award pre-judgment interest at the rate of 6% per annum, and post-judgment interest at the rate of 9% per annum. The pre-judgment interest request on motion for rehearing is a troublesome question in this case. Miles contends that he is entitled to receive pre-judgment interest from the date Royal Indemnity denied insurance coverage for the loss in question, October 8,1976, until the date of judgment. Miles’ pleadings prayed for recovery under the policy of insurance issued by Royal Indemnity for the cost of repairs to the Alyson plus storage, “plus costs of Court, and such other and further relief, both general and special, at law and in equity, to which he may be justly entitled.” Miles contends that this general prayer is a sufficient basis upon which to award both pre- and post-judgment interest.

Royal Indemnity, on the other hand, complains that there is no evidence in the record as to the date Royal Indemnity denied liability pursuant to the terms of the policy because the letter (cross-plaintiff’s exhibit number 8) upon which Miles relies was never introduced into evidence. In addition, Royal Indemnity complains that the damages Miles sought to recover cannot be considered unliquidated within the general rule which allows pre-judgment interest on damages for unliquidated demands when the principal damages are determinable and established at a definite time, either by the rules of evidence or known standards of value because such damages were not “determinable and established at a definite time.” (See McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ).

Justice McGee writing on behalf of our Supreme Court in Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109, 116 (Tex.1979), stated the following general rule concerning pre-judgment interest:

“Prejudgment interest is that interest calculated on the sum payable to the plaintiff from the time of his loss or injury to the time of judgment. It is recoverable as a matter of right where an ascertainable sum of money is determined to have been due and payable at a date certain prior to judgment.” (Citations omitted.)

Pre-judgment interest can be allowed eo nominee only where it is so provided for by contract or statute. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 483 (Tex.1978). Pre-judgment interest can also be awarded as damages in certain instances under equitable principles as compensation for the use or detention of money. See Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 485-88 (Tex.1978). Where pre-judgment interest is sought at common law as an element of damages, the plaintiff must plead for it. Republic National Bank v. Northwest National Bank, 578 S.W.2d 109, 117 (Tex.1979). An award for pre-judgment interest eo nominee, pursuant to Tex.Rev.Civ.Stat.Ann. art. 5069-1.-03 (1971) may be based upon a prayer for general relief if the plaintiff pleads and proves a written contract ascertaining a sum payable on date certain. Republic National Bank v. Northwest National Bank, 578 S.W.2d 109, 117 (Tex.1979).

In this case, Miles’ motion for rehearing fails to disclose whether prejudgment interest is being sought eo nominee pursuant to art. 5069-1.03 or as damages, because rules pertaining to each are cited by him without distinction. It is clear, however, that pursuant to the general rules, Miles cannot recover pre-judgment interest as damages because his claim for such interest is supported only in his trial pleadings with a prayer for general relief. We further note that, although Miles filed a motion for judgment on the jury’s verdict supported by an exhibit containing his proposed judgment, neither the motion nor the proposed judgment mention pre-judgment interest. In addition, although Miles’ original appellate brief and reply brief contain specific prayers which, in' substance, request our Court to reverse the trial court’s judgment non obstante veredicto and to render judgment in accordance with the jury’s answers to special issues, neither of his appellate briefs mention pre-judgment interest nor do they contain a prayer for general relief to support such award.

We move to the critical question: Is Miles entitled to recover pre-judgment interest eo nominee pursuant to Tex.Rev. Civ.Stat.Ann. art. 5069-1.03 (1971). This statute provides, in pertinent part, as follows:

“When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable . . . ”

In order for Miles to be entitled to recover pre-judgment interest eo nominee within the meaning of article 5069-1.03, it was incumbent upon him to plead and prove “a written contract ascertaining a sum payable at a date certain prior to judgment.” Republic National Bank v. Northwest National Bank, 578 S.W.2d 109, 116-17 (Tex.1979). The Texas Supreme Court has long construed the requirement that a contract “ascertaining a sum payable” is satisfied when the following general conditions are met:

“[T]he words, ‘ascertaining the sum payable’ have reference to the sum or amount the party executing the obligation may be reasonably expected or required to pay, in view of all the circumstances incident to the matter or business he is contracting about, if by reason of the provision of the contract he becomes at any time liable to pay thereunder; and it is not necessary . . . that the contract shall itself establish a fixed liability in a definite amount as of a date certain. It is sufficient ... if the contract provides the conditions upon which liability depends and fixes a measure by which the sum payable can be ascertained with reasonable certainty, in the light of the attending circumstances. We think the statute should be construed as applying to contracts where, in case of liability arising from contingencies occurring after its execution, the obligor is furnished the means or opportunity of ascertaining with reasonable certainty the extent of liability or the sum he may be expected to pay.” Federal Life Ins. Co. of Chicago v. Kriton, 249 S.W. 193 (Tex.Comm’n App.—1923, opinion adopted). (Emphasis added).

The' insurance policy upon which Miles relied was introduced into evidence and is sufficient to constitute a contract ascertaining a sum payable within the meaning of article 5069-1.03.

The question of whether Miles proved that such sums were due and payable at a date certain prior to judgment is the next question to be answered. It has been generally stated that where an insurer denies liability under the terms of an insurance policy where no payment date is stated in the policy, and thereafter the insured establishes the insurer’s liability pursuant to the policy, pre-judgment interest will commence from the date the insurer denied liability. Liberty Mutual Ins. Co. v. General Insurance Corp., 517 S.W.2d 791 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Fort Worth Lloyds v. Hale, 405 S.W.2d 639 (Tex.Civ.App.—Amarillo 1966, writ ref’d n. r. e.); compare Fisch v. Transcontinental Insurance Company, 356 S.W.2d 186 (Tex.Civ. App.—Houston [1st Dist.] 1962 writ ref’d n. r. e.). Although the express terms of the insurance policy required Miles to give Royal Indemnity “immediate written notice with full particulars” in the event of a loss which could give rise to a claim under the policy provisions, the policy itself does not state a date or time limit for Royal Indemnity to pay such claim. In order to establish the date certain for payment, Miles relies upon the letter of October 8, 1976, wherein Royal Indemnity denied insurance coverage for the damage caused by the sinking of the Alyson. This letter, however, was not introduced into evidence. Arguably then, Miles cannot recover pre-judgment interest eo nominee because he failed to prove a date certain prior to the entry of judgment when an ascertainable sum became payable.'

A different result, however, was reached in New York Underwriters Ins. Co. v. Coffman, 540 S.W.2d 445, 457-58 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.), where the Court held in effect that prejudgment interest was recoverable and would commence on the date the insurance company first denied liability under the policy which, in that case, was the date the company filed its original answer denying liability. Since Miles had prayed for general relief, we enter the judgment the trial court should have entered. Rule 434, T.R. C.P.

We therefore grant Appellant Miles’ motion for rehearing and grant pre-judgment interest from October 7, 1977, when the record shows Royal Indemnity denied liability (original answer to third party complaint filed October 7, 1977) until date of judgment, January 18,1978, at 6% and post-judgment interest at the rate of 9% from the date of judgment until paid.

      . The jury answered special issues in favor of Hoke on his cause of action against Miles to recover the reasonable value of the repairs to boat Alyson prior to the time she sank. On appeal, Miles does not complain of that portion of the trial court’s judgment which awarded Hoke $1,704.37 for repair work and attorney’s fees of $900.00, nor does Miles complain of the jury’s failure to find Hoke negligent. There is a motion before this Court to affirm that part of the trial court’s judgment which was rendered in favor of Hoke. We grant that motion.