text:
    William T. BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 50326.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.

      John F. Lubben, III, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, Les Eubanks and Phil Adams, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was tried on April 23, 1974 before a jury for the offense of possession of a controlled substance, to-wit, heroin. On April 24, 1974 the jury returned and announced that they could not agree on a verdict and a mistrial was declared. On September 12,1974 the appellant was again tried before a jury. The jury found the appellant guilty of possession of a controlled substance. The court assessed punishment at 15 years.

Appellant’s first ground of error is that the evidence is insufficient to support the jury’s verdict.

The record reflects that on the morning of January 21, 1974 Sergeant B. F. Fowler of the Dallas Police Department, accompanied by two other officers, executed a search warrant by forcing the door of the apartment of Carolyn Williams. Sergeant Fowler testified that upon reaching the bedroom of the apartment another officer turned on the lights and he saw the appellant sitting on the edge of the bed, nude. Carolyn Williams was lying on the bed, also nude. After ordering the appellant to stand, Fowler stated that he saw a small foil package on the mattress on or very near the place where the appellant had been sitting when the officers entered the room.

Further search of the apartment revealed a sack, which was found hidden in the suspended ceiling in the hallway of the apartment. The sack was found to contain marihuana, syringes and burnt spoons.

Joseph M. Canibano of the Dallas Police Department testified that he accompanied Sergeant Fowler to Carolyn Williams’ apartment on the date in question. He testified that the appellant was sitting on the edge of the bed as the lights were turned on and that after the appellant was ordered to stand a foil wrapped package was found on the bed the appellant had just vacated. Officer Canibano also stated that Carolyn Williams had needle marks on her arms which indicated to him that she was using heroin.

Officer T. N. Holmes of the Dallas Police Department testified to substantially the same facts as had the other two officers. He stated that as he turned on the lights he saw the appellant “rising from a lying position his feet not on the floor.”

Carolyn Williams, who was tried with the appellant, testified in her own defense that when she was awakened by the police officers the appellant was standing near the bed on the opposite side from her. She stated that the foil packet was found under the mattress not on top of it as the officers testified. She further denied knowledge of the packet or its contents. Later Williams stated that the foil package and the sack both belonged to the appellant. On cross-examination by the prosecutor she stated that she was a heroin addict and that the appellant supplied her with heroin.

The record reflects that the appellant supplied the money for the apartment where Carolyn Williams lived and that the appellant visited the apartment daily. Evidence was also introduced that the foil packet did, in fact, contain heroin.

Possession of a controlled substance need not be exclusive and evidence which shows that the accused jointly possessed the controlled substance with another is sufficient. Williams v. State, 524 S.W.2d 705 (Tex.Cr.App.1975); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975). Mere presence at a place where narcotics or dangerous drugs are possessed does not in itself justify a finding of joint possession. Curtis v. State, supra; Valdez v. State, 481 S.W.2d 904 (Tex.Cr.App.1972). The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the appellant knew of its existence. Hineline v. State, 502 S.W.2d 703 (Tex.Cr.App.1973); Williams v. State, supra.

The trial court instructed the jury on the law of possession, principals, joint possession and accomplice testimony. The appellant argues that Carolyn Williams’ testimony was not sufficiently corroborated to allow the conviction to stand.

We need not reach the question raised by the appellant in his first ground of error. The arresting officers testified that they found the appellant in bed with the heroin. The apartment manager testified that the appellant had given Carolyn Williams the money to pay the rent on the apartment on at least one occasion in the manager’s presence. At the time the apartment was rented to Williams the appellant introduced Williams as his wife to the manager of the apartment. The manager stated that he observed Williams and the appellant moving into the apartment, and he saw the appellant carrying things from a car to the apartment. He further testified that he saw the appellant leaving the apartment on several occasions early in the morning. The manager further testified that after the arrest he saw the appellant removing men’s clothing from the apartment in question.

The evidence presented by the State is sufficient to show joint possession of the heroin without regard to the testimony of Carolyn Williams.

Appellant’s first ground of error is overruled.

The appellant’s second ground of error is that the trial court erred in refusing to submit the appellant’s requested charge on circumstantial evidence.

The record reflects that Carolyn Williams testified on direct examination that the heroin belonged to the appellant. This was direct evidence of the appellant’s possession of the heroin. The weight to be given to this testimony was for the jury. The trial court correctly refused the requested charge on circumstantial evidence. Appellant’s second ground of error is overruled.

Appellant has also filed a pro se supplemental brief in which he contends that the trial court erred in sustaining his conviction because the “information was based on an invalid complaint.” The record reflects that the appellant was indicted by the Dallas County grand jury during the January 1974 term. The indictment is regular in form and properly charges the offense in question. Nothing is presented for review.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


source: Caselaw Access Project

author: KEITH, Commissioner.

license: Public Domain

text:
    Larry Donnell McCOY, Appellant, v. The STATE of Texas, Appellee.
    No. 50503.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    Grant U. Hardeway, Sr. (On appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Gerald Guerinot, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

KEITH, Commissioner.

The jury convicted appellant of burglary of a building with intent to commit theft. For the purpose of enhancing the punishment it was alleged that he had previously been convicted of felony theft. At the beginning of the punishment phase of the trial, appellant orally moved the court to quash the enhancement allegation in the indictment upon the ground that the “pen papers” did not include the written waiver of the right of trial by jury as required under Art. 1.13, V.A.C.C.P. This motion having been overruled, he entered his plea of “Not true.” The jury assessed his punishment at confinement for a period of ten years.

Appellant does not challenge the sufficiency of the evidence and a recital of the facts is deemed unnecessary.

The three grounds of error all raise one basic contention: The records of the prior conviction alleged in the indictment for the purpose of enhancement of punishment were inadmissible in that they did not contain a written waiver of trial by jury signed by appellant and State’s counsel approved by the court and filed among the papers of the cause before he entered his plea.

The judgment in the prior case, entirely regular upon its face, contained this recitation:

“The Defendant, in person and in writing, in open court, having waived his right of trial by jury (such waiver being with the consent and approval of the Court and now entered of record on the minutes of the Court, and such waiver being with the consent and approval of the District Attorney in writing and filed in the papers of this cause), was arraigned and, in open court, pleaded guilty to the charge contained in the indictment.”

Appellant offered no evidence that the written waiver of trial by jury was not in fact executed and filed in compliance with Art. 1.13. Thus, appellant has failed to overcome the presumption of regularity to be accorded the prior judgment and the presumption that the court there followed the law as required by Art. 1.13. Young v. State, 488 S.W.2d 820, 821 (Tex.Cr.App.1972).

Accord: Mullenix v. State, 443 S.W.2d 264, 265 (Tex.Cr.App.1969); Whitmire v. State, 486 S.W.2d 347, 348 (Tex.Cr.App.1972); McCoy v. State, 169 Tex.Cr.R. 620, 336 S.W.2d 945 (1960).

Although none of the cited cases involved Art. 1.13, each is in accord with the general rule that the presumption in favor of the jurisdiction of a court prevails where there is an uncontradicted finding in the record thereof. See and compare Gutierrez v. State, 456 S.W.2d 84, 86 (Tex.Cr.App.1970); Cherry v. State, 488 S.W.2d 744, 755 (Tex.Cr.App.1972). See also, 46 Am.Jur.2d, Judgments, § 41, p. 342 (1969); J. Smith, “Evidence During Punishment Stage,” 7 St. Mary’s L.J. 38 (1975).

Indeed, appellant says in his brief:

“Appellant recognizes these cases [some of which have been cited herein] as the controlling case law in Texas at the present time, however, Appellant would urge the Court to overrule these precedents in so far as they give a presumption of validity to ‘form’ recitations of compliance with mandatory procedural steps attendant upon the waiver of fundamental constitutional rights, e. g., right to trial by jury.”

Since defendant offered no testimony to rebut the presumption of regularity showing compliance with Art. 1.13, we decline to overrule the line of cases, only a few of which have been mentioned herein, applying such presumption to judgments. Thus, upon the record as presented, the trial court properly admitted the “pen papers.”

Affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: GREEN, Commissioner.

text:
    Charles L. THORNTON, Appellant, v. The STATE of Texas, Appellee.
    No. 50585.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.

      Jeff Morehouse and J. Walter Park, IV (Both Court-appointed), San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gus E. Wilcox and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court, appellant was convicted of unlawful possession of a short-barrel firearm. Punishment was assessed at ten years.

In two grounds of error, appellant contends that the charges against him should have been dismissed because the allegations in the indictment (1) fail to charge an offense and (2) fail to charge the offense in a manner sufficiently specific to apprise him of the grounds of prosecution.

The indictment, following the formal part, alleges that on or about April 5, 1974, in Bexar County, appellant “did then and there knowingly and intentionally possess a short-barreled firearm, namely a shotgun

The record does not reflect that any motion to quash was filed in the trial court, and appellant’s contentions are made for the first time on appeal. Consequently, only such contentions cognizable under Art. 27.08, V.A.C.C.P., to-wit, that the indictment fails to allege the constituent elements of the offense, are before this Court. Cox v. State, Tex.Cr.App., 523 S.W.2d 695; Terry v. State, Tex.Cr.App., 517 S.W.2d 554; American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598.

V.T.C.A. Penal Code, Section 46.06, Prohibited Weapons, as applicable here provides:

“(a) A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:
⅝ * * ⅜! # 5⅝
“(3) A short-barrel fire-arm; . . . ”

Section 46.01(10) of the same penal code provides:

“(10) ‘Short-barrel fire-arm’ means a rifle with a barrel length of less than 16 inches or a shotgun with a barrel length of less than 18 inches, or any weapon made from a shotgun or rifle if, as altered, it has an overall length of less than 26 inches.”

The indictment is drawn in the language of Section 46.06(a)(3), supra, describing the “short-barrel fire-arm” as a shotgun. It alleges the constituent statutory elements of the offense. In the absence of a motion to quash, the contention that the indictment should describe the shotgun as having a barrel length of less than 18 inches is not before this Court.

Furthermore, the indictment sufficiently advised appellant of the grounds of prosecution.

The two grounds of error are overruled.

In his third ground of error, appellant contends that the evidence is insufficient to support the conviction since the State’s evidence showed that the gun was disassembled and unable to be fired in the manner in which appellant possessed it, and therefore was not a prohibited weapon.

The record reflects that on April 5, 1974, while police officer Stover was on patrol duty in San Antonio he noticed a disturbance in the 1400 block of Commerce Street and went to investigate. He noticed an object protruding from the right back pocket of appellant which appeared to be a “barrelled pistol.” He took this object out of appellant’s pocket and found it to be the barrel of a shotgun with a shell in it. He then found the stock of a shotgun stuck in appellant’s belt underneath his shirt and a live shell in his pocket. The officer testified that it took him “about a second, two seconds, half a second” to put the stock and the barrel together so that the gun would shoot. The barrel of the shotgun measured approximately twelve inches in length and the stock eight inches. The total length of the gun was approximately twenty inches.

In Crain v. State, 69 Tex.Cr.R. 55, 153 S.W. 155, the conviction was for unlawfully carrying a pistol. This Court in affirming the judgment said:

“ . . . it is a violation of the law to carry a pistol, even though one should place one part of it in one pocket and another part in another pocket. One could soon put the parts together, and the intent and purpose of the law is to keep one from carrying deadly weapons on his person. The pistol was in no way out of repair; it would shoot when put together, as shown by all the testimony; and those cases cited by appellant, where the pistol was so out of repair it could not be fired, have no application. McCallister v. State, 55 Tex.Cr.R. [392] 393, 116 S.W. 1154.”

See also Moore v. State, Tex.Cr.App., 385 S.W.2d 387, in which Crain v. State, supra, is cited and followed; Rasberry v. State, 72 Tex.Cr.R. 13, 160 S.W. 682; Smith v. State, Tex.Cr.App., 96 S.W. 1086.

The evidence in the instant case was that the shotgun, though disassembled at the time appellant was carrying it on his person, could be readily and quickly reassembled, was loaded, and when the stock and barrel were connected could be fired. The ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . Subsections (b), (c) and (d) enumerate certain defenses to prosecution under this section which are not applicable here. Subsection (e) provides that a violation of (a)(3), supra, is a felony of the second degree. Punishment for such felony is not less than 2 nor more than 20 years and in addition to imprisonment may be assessed at a fine not to exceed $10,000. V.T.C.A. Penal Code, Section 12.33


text:
    Alford YOUNG, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50593.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    John T. White, Borger, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from a conviction of forgery, in which punishment was assessed at eight years.

The instrument alleged to have been forged reads as follows:

"Hempstead, Texas March 25 1974 CITIZENS STATE BANK
"PAY TO THE ORDER OF_GIBSONS_$52.24
"Fifty two dollars & twenty four cent_DOLLARS
“S/ FLOYD DIXON Unlv. of Texas Recruiting"

Hon. Jim Vollers, State’s Attorney, has filed a brief for the State in which he concedes reversible error, and recommends reversal of the judgment. We have reviewed the record, the appellant’s brief, and the State’s Attorney’s brief, and conclude that the facts are as stated in the State’s brief, and that its application of the law to the facts is justified. Accordingly, we adopt said brief as the opinion of the Court and quote from it as follows:

“By appellant’s grounds of error No. 1 and No. 5, it appears that he is aiming primarily at the sufficiency of the evidence to sustain this conviction. Since the thrust of these grounds of error is to test the sufficiency of the evidence, this matter should be discussed first.
“The State proved that the defendant in this cause gave a check to an employee at Gibson’s in the amount of $52.24 in payment for a watch. This transaction occurred on March 25, 1974. The employee, Mackelreef, identified the defendant as the man named Floyd Dixon who gave him the check on the occasion in question. The State further proved that the bank upon which the check was drawn had no account in the name of Floyd Dixon or Alford Young, Jr.
“The State then proved, through testimony of Alford Young, Sr., that the defendant was his son and that he was known also as Floyd Dixon. Furthermore, the defendant had a social security number as Floyd Dixon. On cross-examination, it was established that the defendant had been using the name of Floyd Dixon since he was 16 years of age, and he was at the time of trial. Furthermore, it was proved that he had a driver’s license in the name of Floyd Dixon and that the address which he gave at 2201 Timber Drive in Dickinson was the permanent address he used because he traveled quite a bit. Defendant’s Exhibit 2 was introduced which showed that he had an identification card dated December 9, 1968, in the name of Floyd Dixon. It was established that he was involved in some degree in the entertainment field.
“It was established that the defendant exhibited the driver’s license in question when the purchase was made. After the State rested, the defendant presented a witness, Percy Carter, who testified that he had known the defendant by the name of Floyd Dixon for about ten years and that the defendant, under this name, had played in a band at his place of business and had attempted to book other acts with him. Defendant’s Exhibit No. 3 was introduced which showed a business card used by the defendant under the name of Floyd ‘Al’ Dixon.
“The only question that is raised by these facts is whether or not when the defendant signed the check in question as Floyd Dixon, University of Texas Recruiting, he committed the act of forgery. It appears to be very clear that Section 32.21, P.C. defines forgery as follows:
“ ‘(a) For purposes of this section:
(1) “Forge” means:
(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act; * * * * ’

“From this definition it appears to be readily apparent that the act in question, in addition to being with the intent to defraud, must purport to be the act of another who did not authorize that act. As was pointed out in Dunlap v. State, [169 Tex. Cr.R. 198], 332 S.W.2d 727,

“ ‘An instrument signed in an assumed name and passed by the person signing it as his own act is not forgery in that it does not purport to be the act of another.’

“In that case it was further pointed out that to sustain the allegations of the indictment it was necessary for the State to prove beyond a reasonable doubt, not only that the check was made with the intent to injure and defraud, but that it purported to be the act of one Elmer Brooks, another and different person than the person who signed it, or of a fictitious Elmer Brooks. The Court went on to find that the evidence was insufficient to sustain a finding that the signing of the check purported to be the act of an Elmer Brooks other than appellant. That case further recognized that it was pointed out in Ware v. State, [124 Tex.Cr.R. 639], 65 S.W.2d 310, that under certain circumstances a person could be guilty of forging his own name when it purported to be the act of another person. However, it appears that the evidence in this case only shows that the defendant was using a name which he had frequently used for many years; he used his own driver’s license for identification, and he apparently gave a home address which was his permanent home address. Although it was proven that no account existed at the bank upon which the cheek was drawn and that he was not employed by the University of Texas, these items of evidence merely show his intent to defraud and certainly do not show that he was in fact some person other than the person he purported to be. The fact that he stated that he was in effect working for or was an agent for the University of Texas would merely indicate a misstatement of fact which would lend credence to his reliability and financial responsibility so that the check would be accepted. There is no suggestion in this record that he was in fact holding himself out to be a person other than who he was.”

See also Smith v. State, 435 S.W.2d 526 (Tex.Cr.App.1969); Smith v. State, 379 S.W.2d 326 (Tex.Cr.App.1964); Carnahan v. State, 110 Tex.Cr.R. 550, 9 S.W.2d 1034.

For the reasons stated, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . The word “defendant” is used in the brief for appellant. In this Court, appellant is the proper designation for the party appealing from the conviction.

      . V.T.C.A., Penal Code effective January 1, 1974.

      . The proof showed only that he was not employed by the Austin branch of the University of Texas. It was established that there are eleven branches of the University of Texas system.


author: DAVIS, Commissioner.

text:
    Charles Bruno JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50595.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    Robert T. Baskett, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky, John Ovard and Fred Davis, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery with firearms. Punishment was assessed by the jury at thirty-five years.

The indictment alleged the offense occurred on or about December 20, 1973 and the record reflects that trial was in July, 1974.

Raymond Edwards, assistant manager of a 7-Eleven Store on the corner of Beckley and Elmore in Dallas, identified appellant as one of three men who entered the store together on the night of December 20,1973. One of the men (not appellant) brandished a gun and said, “Let me have all of your money,” and the testimony of Edwards reflects that after “around $500” was taken appellant said, “Let’s go.” Another store employee, Ronald Jones, was present in the store at the time of the robbery.

Two of appellant’s grounds of error are directed to the prosecutor’s argument at the punishment stage of the trial. Appellant’s complaints are directed to the prosecutor’s argument that the witness Cornelia Collins was one of appellant’s victims and appellant urges that his motion for mistrial directed to such argument should have been granted and further that such argument implied appellant’s guilt of another offense and denied appellant a fair and impartial trial.

The record reflects that Cornelia Collins testified that she knew appellant, that she came to know him “on the night of December 22nd, at about 8:10 p. m.” and that she knew his general character and reputation in the community in which he resides for being a peaceful and law-abiding citizen. The witness testified regarding appellant’s reputation, “It’s bad, very bad.” The witness further stated that she was not present nor did she have anything to do with the case being tried.

The appellant complains of the following argument of the prosecutor at the punishment stage relative to the witness Collins:

“You know that the robbery in this case occurred on December 20 in the evening hours, don’t you?
“Now, if somebody really had some remorse, if they really didn’t — if they really had that type of thing in mind, you wouldn’t have a situation where a young lady sixteen years old comes to know that same man December 22nd at night, and she tells you—
“MR. BASKETTE: Your Honor, pardon me, Mr. Ovard, I object to that. I don’t believe it is a proper argument in the facts of this case, outside the record.
“THE COURT: Stay within the evidence, Mr. Ovard. Go ahead.
“MR. OVARD: She said, and I quote what she said, I asked, ‘When did you come to know of him?’ She said, ‘December 22nd at 8:10 at night.’ Didn’t she? Now, you judge that young lady. I contend she has more courage than most of the adults out here. When you look at teenagers and wonder what is happening to them in our community, that takes courage to come in here and face that man and testify like that, and that’s something she lives with the rest of her life. I just happen to think she can handle it because she has got courage, she has got—
“MR. BASKETTE: Your Honor, I object to this again. It is outside the record. There is nothing in this case regarding any connection between that girl and this defendant. I object to it, outside the record.
“THE COURT: Well, the jury will recall the evidence. Stay within the record, Mr. Ovard.
“MR. OVARD: If I am not into the record, I don’t know how I can be more in the record. What the judge is saying is you consider whether or not I am.
“She told you when she came to know him, she told you his reputation was very bad, and we observed a person, and you observed their demeanor, and you remember observing her when she testified the way she rung her hands. The demeanor she had, the look she had when she saw that man again that she identified for you, and you don’t have to close your eyes to that, because that’s what the second hearing was all about.
“ . . . I’ll remember specifically calling her back for one additional question as she started to leave, ‘You were not involved in the case that we are trying here today, were you?’ and she said, ‘No.’
⅝ ⅜ 5⅛ ⅜{ ⅜ ⅝
“You observed his [appellant’s] demeanor when she testified before you. Did you see any remorse or sorrow after he saw that girl again or after he saw the witness testify during the holdup?
⅝: ⅜ ⅜ ⅜ ⅜
“ . . . that little girl testified, that man testified, and then they have to go out and try and live in this community after doing that, after testifying against this guy and his buddies. They have to go out and try and make a life, build a life for themselves after that. I happen to think that the two people you saw testify are capable of doing that. I’m sure the man wouldn’t have any trouble with that at all, I hope that girl can do it.
“Someday — she’s not married, she doesn’t have a family yet, but she is going to have a husband someday and she’s got to live with the memories of her past and what he knows and what she knows, and you have that evidence before you.
“Now, in a case you, the jury, you set a sentence and that’s what the Court tells you in the charge, all you set is the sentence then the experts that deal in the area decide whether or not he can be rehabilitated. I think first the victims have a right to be protected for at least a certain period of time. How would you like to be one of the victims that testified against him—
“MR. BASKETTE: Objection, Your Hon- or. There is no evidence that anyone was a victim except the complaining witness in this case. Outside the record, prejudicial.
“THE COURT: Well, to that extent, Mr. Baskette, I will sustain your objection.
“MR. BASKETTE: Ask the jury be instructed.
“THE COURT: Rephrase your remarks.
“Don’t consider the last remark.
“MR. BASKETTE: And ask for a mistrial.
“THE COURT: Overruled.”

Edwards was the only one of the two employees present at the time of the robbery who testified. Thus, only one of the victims of the instant case testified.

While it is undoubtedly an unpleasant experience for a sixteen year old girl to testify as a character witness, the unmistakable thrust of the prosecutor’s argument was that the girl was more than a character witness. We cannot agree with the State’s reasoning that the complained-of argument was nothing more than a request for the protection of victims’ rights in general and a plea for law enforcement.

We find the clear and inescapable import of the prosecutor’s argument to be that the witness Cornelia Collins was one of appellant’s victims. Such argument was not based on evidence adduced at the trial nor would such evidence have been admissible had it been offered. The State was admonished prior to trial in accordance with appellant’s written motion to not allude to or refer to extraneous offenses without having first obtained a ruling of the court out of the presence of the jury. The prosecutor persisted in this line of argument after twice having been admonished by the court to stay within the record.

The prosecutor cannot use closing argument to get evidence before the jury which is outside the record and prejudicial to the accused. Dears v. State, Tex.Cr.App., 506 S.W.2d 606; Ward v. State, Tex.Cr.App., 474 S.W.2d 471; Lookabaugh v. State, 171 Tex.Cr.R. 613, 352 S.W.2d 279. The effect of the prosecutor’s plea was to ask the jury to assess punishment for a collateral crime which the prosecutor had injected into evidence by way of jury argument. See Klueppel v. State, Tex.Cr.App., 505 S.W.2d 572. We conclude that the court’s instructions to disregard did not overcome the prejudice and harm caused by the prosecutor’s argument.

In view of our disposition of the foregoing ground of error, appellant’s other contentions will not be discussed.

For the error discussed, the judgment is reversed and the case remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: ODOM, Judge. ONION, Presiding Judge

text:
    Jerry DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 50771.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    Michael L. McLeaish, Odessa, for appellant.
    John H. Green, Dist. Atty., and Dennis Cadra, Asst. Dist. Atty., Odessa, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for rape. The trial court accepted appellant’s plea of guilty on July 12,1974, after properly admonishing him in accordance with Art. 26.13, V.A.C.C.P. Appellant judicially confessed to the offense of rape. The court assessed punishment at fifteen years.

In his first ground of error, appellant complains of the representation accorded him at the entering of his guilty plea. In support of this ground of error, he relies entirely upon the evidence produced at a hearing held September 16, 1974, approximately two months after the filing of his motion for new trial and long in excess of twenty days from such filing. If the hearing was upon that motion, it was unauthorized and cannot be considered by us. Morgan v. State, Tex.Cr.App., 519 S.W.2d 449; Boykin v. State, Tex.Cr.App., 516 S.W.2d 946. If unrelated to the motion for new trial, it is not urged upon what ground it would have been authorized as part of the proceedings in the instant cause at a date some two months after pronouncement of sentence, and we are aware of no authority for a hearing such as was held in this case. See McCall v. State, Tex.Cr.App., 512 S.W.2d 334. With no predicate in the record to support appellant’s contention, we are compelled to overrule the ground of error.

The second ground of error raises the issue of effective assistance of counsel. In support of this ground of error, the appellant vaguely avers as follows: “Appellant’s conviction was a mockery of justice and a mere sham, as reflected by the entirety of the record.” He provides no example of any alleged incompetence by his court-appointed attorney, nor does he refer us to any portion of the record. Nothing is presented for review. Art. 40.09(9), V.A.C. C.P.; see Hurd v. State, Tex.Cr.App., 513 S.W.2d 936; Arivette v. State, Tex.Cr.App., 513 S.W.2d 857. In addition, the record reflects no irregularity that we might review in the interest of justice, Art. 40.-09(13), V.A.C.C.P. The second ground of error is overruled.

The judgment is affirmed.

DOUGLAS, J., not participating.

ONION, Presiding Judge

(concurring in part and dissenting in part).

I concur in the result reached, but would state my own reasons for disposing of ground of error # 1. In this ground of error appellant complains he “was denied the right to legal counsel at the entering of his guilty plea on June 24, 1974.” In his brief he urges that counsel who represented him was neither retained nor court-appointed. The record reflects that the guilty plea was entered on July 12, 1974, not June 24, as asserted by the appellant. The record reflects that counsel was appointed on July 12, 1974, on the same date appellant executed a pauper’s oath. Appellant does not raise a question of the failure to execute a written waiver of the ten days’ preparation period (see Article 26.04(b), Vernon’s Ann.C. C.P.), but urges that at the time counsel was advising and representing him he had not been formally appointed. The file mark on the order appointing counsel dated July 12,1974, did not reflect the time of day the order was entered. Even if the order was actually signed and entered after the entry of the guilty plea, I cannot conclude that reversible error is reflected because the trial court permitted the trial to proceed knowing that the appellant was represented by appointed counsel. Therefore, on the record that everyone agrees is before us, I would overrule appellant’s first ground of error.

Unlike the majority, I would not hesitate to consider the testimony developed at the hearing in the trial court while it still had jurisdiction of the case. See Article 40.09, Vernon’s Ann.C.C.P. While the majority may be technically correct, if the hearing was on motion for new trial filed two months earlier, I think we spin judicial wheels unnecessarily when the majority suggests that the appellant go back to the trial court for possible collateral attack upon the conviction relating to the effective assistance of counsel in order to bring back to this court the very same testimony which is now in the record before us. It is observed that the trial court has jurisdiction to conduct a hearing to correct the record, see Article 40.09, Sec. 7, supra, and may hear oral arguments and decide from the arguments and briefs filed whether to grant a new trial. See Article 40.09, Secs. 11 and 12, supra. Further, this court has on occasion remanded a cause on appeal to the trial court so that claims of ineffective assistance of counsel, denial of due process and other constitutional claims could be resolved by a hearing conducted in the trial court. We have subsequently considered the testimony in such hearings in disposing of the grounds of error on appeal. See, i. e., Kincaid v. State, 500 S.W.2d 487 (Tex.Cr.App.1973); Hullum v. State, 415 S.W.2d 192 (Tex.Cr.App.1967). It seems a bit ridiculous that we can consider testimony under these circumstances and not the testimony developed at the hearing in the instant case where the constitutional issue of effective assistance of counsel is involved. The lack of finality of a criminal judgment is an ever increasing problem for the courts of this country, and our procedures should be flexible enough to put to rest questions raised on appeal once and for all rather than relying upon procedural technicalities relating to motions for new trials to sidestep questions while suggesting the questions can be raised again by collateral attack which will again consume the time of the trial court and of this court at great and additional expense to the taxpayers where the appellants are indigent. No judicial economy is here involved.

For the reasons stated above, I have examined the testimony developed at the hearing in question. Appointed counsel testified he was notified of his appointment by a detective or someone in the district attorney’s office and went to talk to the appellant in a jury room of the district court. At the time of his advice to the appellant and at the time he had the appellant sign certain waivers in connection with the guilty plea, he assumed he had been appointed or would be appointed, particularly after the appellant signed his affidavit of indigency. He did not know if the court had ever entered a formal order of appointment. The trial judge testified he had appointed counsel in question to represent the appellant and had signed the formal order of appointment prior to the case being called, although counsel may have talked with appellant prior to the entry of the formal order.

Nothing in this testimony calls for a different result than would or should be reached regarding the first ground of error on the other parts of the record. I would consider the same and dispose of appellant’s ground on all of the record before us. For the reasons stated, I concur in the result but would dissent to the reasoning of the majority in the first ground of error.

      . Appellant’s proper course of action would be to pursue whatever collateral remedies are available.

      . It is noted that the appellant waived the time in which to file a motion for new trial and accepted sentence. The motion for new trial, subsequently without the sentence being withdrawn, was never acted upon by the court. The record does not reflect that the hearing was upon such motion for new trial or that the complaint now raised on appeal was the basis of such motion. The difficulty with the instant case is that it is not clear just why the court proceeded with the proceeding or upon what motion, oral or written, precipitated the hearing.


author: BROWN, Commissioner.

text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 50886.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.

      Stephen M. Orr, Austin, for appellant.
    Robert 0. Smith, Dist. Atty., Stephen H. Capelle, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a bond forfeiture judgment. Appellant was surety on the bonds of four different principals whose bonds were forfeited. The four matters were consolidated into one forfeiture suit in which the surety was the only defendant. Although the record reflects many deficiencies, the State has confessed error in that in none of the forfeiture proceedings was the principal made a party. Since this is fatal to the judgment (Joe’s Bonding Company v. State of Texas, Tex.Cr.App., 481 S.W.2d 145), there is no need to discuss the matter further.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., not participating.


author: DALLY, Commissioner.

text:
    Leeroy LEWIS, Appellant, v. The STATE of Texas, Appellee.
    No. 50887.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.

      Paul Banner, Greenville, for appellant.
    Charles L. Waldrum, County Atty. and John H. Morris, Asst. County Atty., Bon-ham, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of involuntary manslaughter. Appellant entered a plea of guilty, and the jury assessed his punishment at imprisonment for 7 years.

Appellant complains of the trial court’s failure to withdraw his plea of guilty; he contends the trial court erred in not submitting to the jury the lesser included offense of criminally negligent homicide and in failing to direct the jury to return a verdict of not guilty for that offense; he also attacks the statute under which the conviction was obtained.

Appellant asserts that the trial court on its own motion should have withdrawn his plea of guilty and entered for him a plea of not guilty. At the outset, we note that in Reyna v. State, 434 S.W.2d 362 (Tex.Cr.App.1968), it was said:

“ a plea of guilty to a felony charge before a jury admits the existence of all incriminating facts necessary to establish guilt and, in such cases, the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them touching the penalty to be assessed.” 434 S.W.2d at 364.

Reyna v. State, supra, further held that the trial court is only obligated to withdraw a defendant’s plea of guilty when testimony is introduced which

“ . . . makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn.
“[Tjhat evidence must go farther than just tending to show a defensive issue, but must reasonably and fairly present such issue before the trial court would be required to withdraw the guilty plea.” 434 S.W.2d 362, 365.

See also Lee v. State, 503 S.W.2d 244 (Tex.Cr.App.1974); Hayes v. State, 484 S.W.2d 922 (Tex.Cr.App.1972); Edworthy v. State, 371 S.W.2d 563 (Tex.Cr.App.1963); Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460 (1942); Navarro v. State, 141 Tex.Cr.R., 147 S.W.2d 1081 (1941); Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975 (1915).

It is appellant’s contention that the evidence reasonably and fairly presents the defensive issues of self defense and accident. The evidence consists primarily of stipulations, a written confession and appellant’s own testimony. The evidence reflects that appellant and the deceased, Frankie Ruth Lewis, were married, but had been separated for six or seven months at the time the offense occurred. The appellant arrived at the house of the deceased at 11:30 p. m. on May 28, 1974. The deceased answered appellant’s knock at the door and the ensuing conversation soon developed into an argument. The deceased had a pistol and she waved it about, occasionally pointing it at the appellant. The appellant kicked in the front door, breaking its window, and entered the house. The deceased, still in possession of her pistol, retreated to her bedroom; appellant followed her to the bedroom. Appellant told the deceased that he did not want to “play like that” and for her to “just shoot” him. He told her that she would not “like the idea” if he pointed a gun at her; so saying, he pulled his own loaded pistol from his pocket and “shook” it at her; the gun discharged and the fatal bullet struck the deceased in the left eye. Appellant testified that when his gun discharged the deceased was still pointing her pistol at him.

The deceased did not fire her gun, and the appellant did not testify that he feared for his life or believed he was in danger of sustaining serious bodily injury. Appellant was clearly the aggressor and he provoked the fatal confrontation in the bedroom. The evidence does not fairly raise the issue of self defense. Cf. Villa v. State, 122 Tex.Cr.R. 142, 53 S.W.2d 1023 (1932).

Further, the evidence does not fairly raise the defensive issue of accident. The record reflects that appellant’s conduct toward the deceased was voluntary. See V.T. C.A. Penal Code, Sec. 6.01(a). Accidental homicide is the result of an involuntary act. See V.T.C.A. Penal Code, Secs. 6.01(a) and 6.02(a). Cf. Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975). Appellant voluntarily shook his gun in a threatening manner at the deceased; this unlawful and reckless behavior does not give rise to the defensive issue of accident.

At no time did appellant make any request to withdraw his plea of guilty in the trial court. It was not incumbent upon the trial judge to withdraw appellant’s plea of guilty under the circumstances of this case. See Trevino v. State, 519 S.W.2d 864 (Tex.Cr.App.1975); Vance v. State, 122 Tex.Cr.R. 157, 54 S.W.2d 118 (1932); Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Reyna v. State, supra; Williams v. State, 487 S.W.2d 363 (Tex.Cr.App.1972). This ground of error is overruled.

Appellant contends that he should have been acquitted of involuntary manslaughter because the evidence shows that the killing was not intentional. Specific intent to kill is not an element of the offense of involuntary manslaughter under V.T.C.A. Penal Code, Sec. 19.05. This ground of error is overruled.

The appellant contends that the court erred in not submitting to the jury an instruction on the law of criminally negligent homicide; he also contends that the evidence is insufficient to show either involuntary manslaughter or criminally negligent homicide, and that the court therefore erred in failing to instruct the jury to acquit him. The evidence does not raise the issue of criminally negligent homicide. Moreover, the appellant entered a plea of guilty to the offense of involuntary manslaughter; this plea admitted the existence of all incriminating facts necessary to establish guilt. Reyna v. State, supra. These grounds of error are without merit and are overruled.

In several grounds of error the appellant makes a novel attack on provisions of the new Penal Code. The appellant says that the sole difference between involuntary manslaughter as defined by V.T.C.A. Penal Code, Section 19.05(a)(1) and criminally negligent homicide as defined by V.T.C.A. Penal Code, Section 19.07(a) is the culpable mental state of the accused. He asserts that a defendant’s reckless act may support a conviction for involuntary manslaughter, while a defendant’s criminally negligent act will only support a conviction for criminally negligent homicide. He then argues that there is no difference between reckless conduct as defined by V.T.C.A. Penal Code, Section 6.03(c) and criminal negligence as defined by V.T.C.A. Penal Code, Section 6.03(d); therefore, he says the statutes defining involuntary manslaughter and criminally negligent homicide penalize the same conduct and are so vague that they are unconstitutional and unenforceable as penal statutes; in the alternative he argues that only the lower penalty provided for criminally negligent homicide may be assessed against one found guilty of involuntary manslaughter.

We agree that the offenses of involuntary manslaughter and criminally negligent homicide differ in the culpable mental state which suffices to establish the commission of each offense. Reckless conduct as defined by V.T.C.A. Penal Code, Section 6.03(c) involves conscious risk creation, that is, the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that risk. Criminal negligence as defined by V.T.C.A. Penal Code, Section 6.03(d) involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof. At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct; the key to criminal negligence is found in the failure of the actor to perceive the risk. As defined, criminal negligence is a lesser culpable mental state than recklessness; mere proof of criminal negligence would not suffice to support a conviction for the offense of involuntary manslaughter. V.T.C.A. Penal Code, Sections 19.-05(a)(1) and 19.07 do not penalize the same conduct and they are not so vague and uncertain as to be unconstitutional and unenforceable as penal statutes. This ground of error is overruled.

Appellant’s last ground of error is unintelligible; further, no authority is cited and no argument is made thereunder. This ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

DOUGLAS, J., not participating.

      . “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

      . “A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”


author: ROBERTS, Judge. ODOM, Judge

text:
    Bobby KELLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 50947.
    Court of Criminal Appeals of Texas.
    Nov. 19, 1975.
    Ben D. Sudderth and Keith Woodley, Comanche, for appellant.
    Gary R. Price, Dist. Atty., Brownwood, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order revoking probation.

On October 28, 1974, the appellant pleaded guilty to an indictment charging him with burglary. His punishment was assessed at seven years, probated. Condition (a) of appellant’s probation was that he commit no offense against the laws of this State or any other state.

Subsequently, the State filed a motion to revoke appellant’s probation which alleged that appellant had violated condition (a) by appearing in a public place while intoxicated on November 1,1974. Sec. 42.08(a), V.T. C.A., Penal Code.

The court held a hearing on the State’s motion and revoked appellant’s probation.

The appellant first contends that the trial court abused its discretion in revoking his probation because the evidence was insufficient to show that the appellant was intoxicated. We agree and reverse.

The State’s only witness at the motion hearing was Sergeant Gary L. Page of the Brownwood Police Department. He testified that he had put “people in custody in the drunk cell of the city jail” and that he had “handled” people who were intoxicated, as well as those who “had apparently been drinking alcoholic beverages but . were not intoxicated.”

Page stated that on November 1, 1974, he discovered the appellant and a companion sitting in the front seat of a car on Hickory Street in Brownwood. According to Page, the appellant was slumped slightly over the wheel of the car when Page and his partner arrived. The officers tapped on the car window and banged on the roof of the car, but neither occupant responded. The officers then opened the door next to the appellant, and one of the officers had to catch the appellant to keep him from falling. Page observed several empty beer containers in the car.

After waking the appellant, Page noticed that he had “a strong smell of alcohol on his breath, his eyes were bloodshot, speech was slurred ... he was stumbling, staggering.” Page testified that the appellant was cooperative until he was told that he was being charged with public intoxication. At no time did Page express the opinion that the appellant was intoxicated.

The facts of this case are striking in their similarity to those in Padillo v. State, 420 S.W.2d 712 (Tex.Cr.App.1967). There the appellant’s probation was revoked because of two instances of alleged public intoxication in violation of Article 477 of our former Penal Code. One officer testified in that case that he stopped appellant’s automobile on April 27, 1966, and that appellant smelled strongly of beer and had trouble walking. Another officer testified that on October 16, 1966, he found appellant with beer in his car and smelling heavily of alcohol. He also testified that the defendant was unsteady on his feet. In both instances, the officers stated that they “lodged complaints” against the defendant. This Court reversed because neither officer expressed the opinion that the defendant was intoxicated. Cf. Palafox v. State, 509 S.W.2d 846, 849 (Tex.Cr.App.1974).

More recently, in Hopkins v. State, 480 S.W.2d 212, 220 (Tex.Cr.App.1971), we cited Padillo with approval for the proposition that “opinion testimony in regard to the ultimate fact issue is required to prove intoxication.”

In this case, as in Padillo, the appellant did not take the stand, cf. Gilder v. State, 474 S.W.2d 723 (Tex.Cr.App.1972), and no witness expressed the opinion that the appellant was intoxicated. It follows that the judgment must be reversed and the cause remanded.

DOUGLAS, J., not participating.

ODOM, Judge

(dissenting).

I dissent to the majority’s disposition of this appeal and would affirm the order of the trial court.

Section 42.08, V.T.C.A., Penal Code, provides in part:

“An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another.”

The majority hold that circumstantial evidence is insufficient to support a finding that one is “under the influence of alcohol,” and reverse because the officer did not use the magic words, that in his opinion appellant was under the influence of alcohol. I am convinced that the condition of being “under the influence of alcohol” may be established by circumstantial evidence and that it was so established in this case. The State’s witness testified that he and another officer found appellant and another person asleep in an automobile parked in the center of a roadway in Brownwood at one o’clock in the morning. The witness described the following course of events:

“Q. Describe the manner in which you got him out of this automobile.
“A. Oh, when we first arrived at the scene we parked behind the Defendant’s car, and got out and walked up to the car, and tapped on the window, banged on the roof, got no response from either subject. So my partner, Shields, opened the driver’s door, and when he did, well, Kelley started falling out, Shields had to catch him to keep him from hitting the ground. We finally got him out of the car and put him up beside the car.
“Q. Did you see any alcoholic beverage containers?
“A. Yes, sir.
“Q. Where were they?
“A. There was one between Kelley’s legs, and then the other passenger had a mug, a glass between his legs.
“Q. Were those the only alcoholic beverage containers that you saw?
“A. There was several more laying in the car.
“Q. Full or empty?
“A. Empty. I believe there was a couple of them that were full, also.
“Q. All right. Were there any other beer containers—
“A. That’s all I recall seeing is beer containers.
“Q. Okay. Would you describe the condition of this Defendant after, immediately after he was caught by Officer Shields?
“A. Well, he was groggy. Sid got him out of the car and stood him up by the side of the car there a few minutes. I began talking to him after he woke up completely, and noticed a strong smell of alcohol on his breath, his eyes were bloodshot, speech was slurred.
“Q. All right. Was he placed in custody?
“A. At that time he was placed in custody.
“Q. Did he walk from that point to the patrol automobile?
“A. Yes, sir.
“Q. Would you describe the manner in which he walked?
“A. Well, he was stumbling, staggering.”

If it is ever possible to show by circumstantial evidence that an individual is under the influence of alcohol, such a showing was made in this case.

I dissent to the reversal.

DOUGLAS, J., not participating.

      . Compare Thompson v. State, Tex.Cr.App., 365 S.W.2d 792; Warren v. State, 131 Tex. Cr.R. 303, 98 S.W.2d 197.


author: AKIN, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Doyle R. HUDDLESTON, Ind. and as next friend of Michael Glen Huddleston, a minor, Appellees.
    No. 18655.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 11, 1975.
    Henry Wade, Dist. Atty., Ronald D. Hinds, Asst. Dist. Atty., Dallas, for appellant.
    Wm. R. Springfield, Cruce & Springfield, Inc., Mesquite, for appellees.
   AKIN, Justice.

This is an appeal by the Texas Department of Public Safety from a judgment of a county court at law ordering the Department to grant a hardship driver’s license to plaintiff’s fifteen-year old son pursuant to Tex.Rev.Civ.Stat.Ann. art. 6687b, § 12(d) (Vernon Supp.1973). We do not reach the merits of this appeal because the case became moot when plaintiff’s son attained sixteen years of age on July 30, 1975, and eligible, therefore, for a regular license under § 11(a) of the statute.

The Department contends that the case is not moot, in view of the decision in Department of Public Safety v. Austin, 163 Tex. 280, 354 S.W.2d 376 (1962). It argues that the Department is effectively denied a right of appeal from the adverse judgment of the trial court because the time required by the trial and appellate process. We cannot agree. The order of the trial court was entered on December 19, 1974, after a non-jury trial. Instead of appealing immediately to this court pursuant to Tex.R.Civ.P. 324, the Department chose to file a motion for new trial with the trial court on December 23, 1974. No attempt was made by the Department to obtain a hearing and ruling on its motion for a new trial. It was overruled by operation of law on February 6, 1975. On March 8, 1975, fifty-seven days after judgment, the record was filed in this court. No motion to advance was filed until May 8, 1975. If the Department had acted promptly in prosecuting its appeal, we could have heard and decided this matter on the merits before it became moot. See In re Mastin, 521 S.W.2d 150, 152 (Tex.Civ.App. — Dallas 1975, no writ) (decided within two months after rendition of the trial court’s judgment).

Furthermore, the Department never issued the hardship license ordered by the trial court because the judgment was superseded by this appeal. Ammex Warehouse Co. v. Archer, 381 S.W.2d 478 (Tex.1964); see Tex.R.Civ.P. 364. Thus, the appeal itself has prevented enforcement of the trial court’s order as effectively as a reversal by this court, and our opinion would have no practical effect. We hold, therefore, that this controversy is moot. Boston v. Garrison, 152 Tex. 253, 256 S.W.2d 67 (1953).

Appeal dismissed.


author: EVANS, Justice.

text:
    John F. HEARD, Jr., et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
    No. 16485.
    Court of Civil Appeals of Texas, (1st Dist.).
    Sept. 18, 1975.

      Woody & Rosen, Clyde W. Woody, Marian S. Rosen, Houston, for appellants.
    Jonathan Day, City Atty., Alan F. Levin, Senior Asst. City Atty., Dennis C. Gardner, Asst. City Atty., Houston, for appellees.
   EVANS, Justice.

This suit was brought by two City of Houston police officers, John F. Heard, Jr. and Wayne M. Jones, against the City of Houston, its Mayor, the Chief of Police, and certain officers of the Civil Service Commission to review an order of temporary suspension entered by the Civil Service Commission under Article 1269m, Tex.Rev. Civ.Stat.Ann. The order complained of suspended the two officers from duty without pay for a period of sixty days. In their pleading the officers sought to have the Commission’s order set aside and asked that they be reinstated to duty with compensation paid retroactive to the date of their suspension. Officer Jones also sought to be promoted to the rank of Detective of Police, which position he asserted he would have held had the suspension not taken place. Both officers sought recovery of attorney’s fees pursuant to the provisions of Article 2226, Tex.Rev.Civ.Stat.Ann. and, by trial amendment, under the provisions of the Civil Rights Act, 42 U.S.C.A., Section 1983.

In comprehensive findings of fact and conclusions of law the trial court determined that while the final order of the Civil Service Commission was procedurally sufficient, supported by substantial evidence, and based upon a hearing in which the officers were afforded due process of law, the order of suspension could not stand because it was based upon an unconstitutional order requiring the officers to submit to a polygraphic examination. The trial court ordered the officers reinstated with pay for the time they were improperly suspended, and the City has not appealed from that order. The trial court further concluded that it had no jurisdiction to review the Civil Service Commission ruling sustaining the promotional by-pass of Officer Jones and that the officers were not entitled to recover attorney’s fees. Officers Heard and Jones appeal from the trial court’s judgment denying them this relief.

We first consider the question of whether the trial court had jurisdiction to review the promotional by-pass of Officer Jones.

The trial court’s findings reflect that on or about February 1, 1974, Chief of Police C. M. Lynn ordered Inspectors R. J. Clark and B. K. Johnson to conduct an investigation into the alleged involvement of Officers Heard and Jones in an incident which allegedly had occurred in December, 1973. In an investigative report addressed to Chief Lynn dated February 7, 1974, Inspectors Clark and Johnson referred to various affidavits and statements which had been obtained from police officers and certain other witnesses, which they enclosed with their report. As reflected by these statements and affidavits, the complaining witness contended that she had been sexually and physically abused by two police officers whom she and certain other witnesses subsequently identified at a “show-up” as Officers Heard and Jones. The inspectors’ report further indicated that Officers Heard and Jones had admitted their involvement to a superior officer, Sgt. W. T. Bolin, but denied that they had abused the complaining witness, contending that she had participated voluntarily. The report also made reference to affidavits of Officers Heard and Jones wherein they denied the allegations of the complaining witness and refused, upon advice of counsel, to take polygraph examinations. The report concluded that on the basis of the affidavits and statements obtained and conferences with the officers involved, the complainant had a “just complaint” and that the two officers would not have confessed to Sgt. Bolin unless they had been in fact guilty. It was the inspectors’ recommendation that the two officers be indefinitely suspended from the Police Department.

On February 14, 1974, Chief Lynn advised the Civil Service Commission that he had indefinitely suspended Officers Heard and Jones because of immoral or criminal conduct pertaining to the above mentioned incident and by reason of their refusal to comply with a written order to submit to a polygraph examination. By letter of same date he advised the Civil Service Commission of his decision to by-pass Officer Jones who at that time occupied first place on the Civil Service Eligibility List for promotion to a vacant position of Detective.

The reasons given in Chief Lynn’s letter for the promotional by-pass of Officer Jones were set out in detail in his letter to the Commission. In essence, Chief Lynn stated that Patrolman Jones and another officer on or about December 14, 1973, had admitted to their supervisor that they had been involved in the incident and that sometime during the Christmas holidays in December, 1973, Officer Jones upon questioning by another supervisor, Captain Zoch, had denied ever having any contacts with the complaining witness. Chief Lynn further reported, in his letter to the Commission, that on or about February 6, 1974 Officer Jones had been directed to submit to questioning concerning the inter-departmental investigation pertaining to the incident and to answer questions concerning the allegations made by the complaining witness, and that Officer Jones had refused to participate in such an investigation other than to sign a statement that he had read the statements of certain police officers and the statement taken from the complaining witness and denied any involvement in the matter. Chief Lynn further advised that Officer Jones had been ordered to submit to a polygraph examination to be conducted by personnel of the Houston Police Department pertaining to the incident and had refused to submit to that test upon the advice of his counsel.

Subsequently on March 13, 1974 Officer Jones was again by-passed for two additional vacancies for the same reasons as stated in Chief Lynn’s letter of February 14, 1974. Having then been passed over three times, Officer Jones was no longer eligible for promotion under the provisions of Section 14 E, Article 1269m, Tex.Rev.Civ.Stat.Ann.

On March 22,1974, the Civil Service Commission entered an order which recited that after a full hearing of the evidence the following findings and conclusions had been reached:

“The Commission makes no finding or conclusion with regard to the allegations under Part I of the letter of indefinite suspension owing to the conflicts in the testimony, and the Commission’s limited authority and budget;
“The Commission does find and conclude, however, that the charges contained in Part II of the letter of indefinite suspension alleging, generally, insubordination for failure to obey a direct written order, are in all things true and correct, but further finds that a temporary suspension should be ordered in lieu of an indefinite suspension.”

This order contains no specific finding regarding the promotional by-pass of Officer Jones and there is some testimony in the record indicating that the Commission may have made its determination with respect to that matter on some subsequent hearing date.

It is the contention of Officer Jones that he was passed over for promotion because he had been illegally suspended from duty in violation of his constitutional privilege not to submit to a polygraph examination. Appellees concede that if the promotional by-pass was based solely upon an unconstitutional reason, the trial court should properly have assumed jurisdiction. Appellees contend, however, that the trial court was without jurisdiction to review the merits of the promotional by-pass if it determined there was a constitutionally valid basis for the Commission’s action.

There is no statutory authority for an appeal from an order of the Commission sustaining the action of a department head in refusing to promote an employee who has the highest grade on the eligibility list. Cash v. City of Houston, 426 S.W.2d 624, 628 (Tex.Civ.App. — Houston [14th], 1968, writ ref’d n. r. e.); City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951). Nor is there any inherent right to judicial review of such order unless it is shown that the Commission’s action violates some constitutional principle. Firemen’s and Policemen’s Civil Service Commission v. Kennedy, 514 S.W.2d 237 (Tex.1974); Lee v. Firemen’s and Policemen’s Civil Service Commission of San Antonio, 526 S.W.2d 553 (Tex.Civ.App. — San Antonio, 1975, not yet reported).

We believe the trial court acted correctly in determining that it was without jurisdiction to review the Commission’s action in upholding the promotional by-pass of Officer Jones. The initial determination of whether or not a police officer should be promoted to a higher position is a matter peculiarly within the discretion of the Police Chief who has the ultimate responsibility for the professional standards of his officers. In making this determination the Police Chief, as head of his department, must rely to considerable degree upon the reports and advice of his officers who have supervisory responsibility over the Police Department personnel.

The testimony adduced at the trial confirmed that Chief Lynn had appointed two inspectors, Clark and Johnson, to investigate the incident and to report to him as to the alleged involvement of Officers Heard and Jones. The testimony further indicated that as a result of this investigation, Officers Heard and Jones had been confronted with the statement of Sgt. Bolin to the effect that they had previously admitted their involvement, and had then and thereafter denied being in any way involved. In considering whether a particular officer has shown such reliability and fitness to be promoted to a higher office, a chief of police might properly consider not only any question raised by pending charges or allegations, but also the officer’s reaction to such charges and the nature of the officer’s cooperation in effecting a prompt determination of the matter.

While the discretion reposed in a chief of police is not without limitation, the legislature has designated the Commission as the final arbiter of his actions with respect to such matters, absent a showing of some constitutional violation. Firemen’s and Policemen’s Civil Service Commission v. Kennedy, supra. It does not appear from the record that the action of the Chief of Police on the promotional by-pass of Officer Jones was based solely upon the refusal of Officer Jones to submit to a polygraph examination, and we find, as did the trial court, that there is no constitutional basis for review of the administrative action of the Commission in that matter.

We further hold that the trial court did not err in refusing to award attorney’s fees to Officers Heard and Jones based upon the provisions of the Civil Rights Act, 42 U.S.C.A., Section 1983. Under Texas law, attorney’s fees are not recoverable unless expressly authorized by statute. Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964). In the instant case Officers Heard and Jones sought and obtained relief under Article 1269m, Tex.Rev.Civ.Stat. Ann., and were not forced to rely upon the provisions of the Civil Rights Act to obtain the relief sought. We recognize that a federal court in the exercise of its equity jurisdiction may, in its discretion, award attorney’s fees in an appropriate case even though the Civil Rights Act does not expressly provide for their recovery. Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 1970). However, notwithstanding the authority of a federal equity court to award attorney’s fees under Section 1983, we hold that in the case at bar, which was brought under our State’s statutory scheme, the trial court properly refused to award attorney’s fees based upon the federal statute, even though a constitutional issue was involved. See Davis v. Coffee City, Texas, 356 F.Supp. 550, 555 (E. Dist. Texas 1972).

The judgment of the trial court is affirmed.


author: CLAUDE WILLIAMS, Chief Justice.

text:
    ARABESQUE STUDIOS, INC., Appellant, v. ACADEMY OF FINE ARTS INTERNATIONAL, INC., and Sarasue Harris, Appellees.
    No. 18641.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 18, 1975.
    Rehearing Denied Oct. 16, 1975.

      James K. Peden, III, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellant.
    Tom Thomas, Kolodey & Thomas, A. James Henry, III, Nelson & Dilts, Dallas, for appellees.
   CLAUDE WILLIAMS, Chief Justice.

Arabesque Studios, Inc. appeals from a take-nothing judgment, rendered non ob-stante veredicto in its action against Academy of Fine Arts International, Inc. and Sarasue Harris for damages arising out of a breach of an employment contract between Arabesque and Sarasue Harris. We affirm the judgment as to International and reverse and render judgment in favor of Arabesque against Sarasue Harris.

Arabesque, at all times material herein, was engaged in the business of providing dance instruction, primarily for children, at three dance studios located in the Dallas area. On January 20, 1971, Arabesque entered into an employment contract with Harris in which she agreed to serve in the capacity of a manager-teacher in the Arabesque studio located in Richardson, Texas. The written contract of employment provided that the employee would not, for a period of twelve months after the date of termination of employment, engage in the same or similar business, in any capacity within a five-mile radius of any location where the employer operated a business. The contract also contained the following provision:

Employee shall not at any time within twelve (12) months following termination of employment teach any current customer or client of the employer, nor teach any person who has been a customer of the employer within twelve (12) months prior to such termination.

Harris performed services for Arabesque under the terms of this contract until May 22, 1972, when she resigned. In September 1972, she began providing dance instruction at a studio operating under the name of Academy of Fine Arts International, Inc., which was located within five miles of the Arabesque Richardson studio. Academy of Fine Arts was a sole proprietorship of Mr. A. R. Fairchild. In November 1972, Academy of Fine Arts International, Inc. was incorporated; fifty-one percent of the stock was owned by Mr. and Mrs. Joe Taylor, and the remainder of the stock was owned by Harris.

Arabesque brought this action against both Academy and Harris, alleging that it had been damaged as a result of Harris’s breach of the non-competition covenant in her contract in that she had taken away Arabesque’s students and trade secrets and had caused irreparable damage to its goodwill. Arabesque sought damages against Academy on the theory that Harris was its agent, servant or employee and, therefore, it was legally responsible for her conduct.

Both in her brief and before this court in oral argument, Harris agreed that her actions and conduct constitute a breach of the restrictive covenant contained in the contract with Arabesque. No question is presented concerning the reasonableness and enforceability of the restrictive provisions. In fact, the trial court granted Arabesque’s motion for partial instructed ver-diet as to the liability of Harris. No attack is made upon this act of the court.

The case was tried before the court and a jury. In response to special issues, the jury found, inter alia,, that within twelve months after the date her employment with Arabesque terminated, Harris taught students at Academy who, within the twelve-month period prior to her termination, were customers of Arabesque; that Academy, at the time it was formed as a corporation in November 1972, had knowledge of Harris’s contract with Arabesque; and that $4,400 would fairly and reasonably compensate Arabesque for its damages resulting from the occurrence in question. Academy filed a motion for judgment non obstante veredicto, contending that there was no evidence to support the answer of the jury to special issue number five concerning its knowledge of the contract between Arabesque and Harris. As further grounds for its motion, Academy attacked the answer of the jury to special issue number six concerning the amount of damages, asserting that the answer was not supported by the evidence. Harris also filed a motion in which she contended that the answer of the jury to special issue number six should be disregarded because it is not supported by any evidence. The trial court sustained both motions and rendered final judgment, decreeing that Arabesque take nothing against either Academy or Harris.

Two questions are presented: (1) Is Academy liable for damages; and (2) does the record contain any evidence to sustain the jury’s finding of damages in the sum of $4,400.

Our appellate review and resolution of these questions is necessarily governed by well-established rules relating to the validity vel non of a judgment rendered non obstante veredicto. It is elementary that in order to sustain the action of the trial court in granting such a judgment, it must be determined that there is “no evidence” of probative force upon which the jury could have made the findings relied upon by appellant Arabesque. The point presented is one of “no evidence,” and our determination of the question is controlled by the following rule: An issue of fact is raised if, discarding all adverse evidence, giving credence to all evidence favorable to the party opposing the motion, and indulging every legitimate conclusion favoring that party, the jury might have found in favor of that party. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958); Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682 (1955); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952); and Franklin v. Safeway Stores, Inc., 504 S.W.2d 514 (Tex.Civ.App. — Dallas 1973, writ ref’d n. r. e.).

Liability of Academy

In the trial court appellant Arabesque asserted two theories to predicate liability upon Academy. It first contended that Harris was acting as the agent of Academy. They state that there was a continuing breach of contract by Harris and that Academy participated in that breach after the date of its incorporation. The jury, in answer to special issue number five, found that Academy, at the time it was formed in November 1972, had knowledge of Harris’s contract with Arabesque. It is upon this finding that Arabesque relies to cast liability upon Academy. We cannot agree.

The record is undisputed that in May 1972, Harris voluntarily left the employment of Arabesque and admittedly breached the contract with that company. In September she began to render services in competition with Arabesque for a sole proprietorship operating under the name of Academy. Appellee Academy was not incorporated until November 1972. Admittedly, there is no privity of contract between Academy and Arabesque. Furthermore, there is no evidence that Academy ratified or confirmed Harris’s admitted breach of the agreement with Arabesque. Therefore, Academy cannot legally be held liable on a breach of contract theory. House v. Houston Waterworks Co., 88 Tex. 233, 238, 31 S.W. 179 (1895); Jones v. George, 61 Tex. 345, 364 (1884); Moore v. Sussdorf, 421 S.W.2d 460, 466 (Tex.Civ.App. —Tyler 1967, writ ref’d n. r. e.).

Arabesque argues that since Harris’s restrictive covenant continued for a fixed period, each day of her employment by Academy must be taken as a new breach in which Academy participated. There is no evidence, however, that any officer or agent of Academy, other than Harris herself, was aware of such a continuing breach of contract. The knowledge of an agent cannot be imputed to a principal if the agent has a personal adverse interest in not revealing it. Goldstein v. Union National Bank, 109 Tex. 555, 213 S.W. 584 (1919). The corporation, representing the interests of those who invested their money in it, cannot be charged with knowledge of facts that she had a personal interest in not revealing.

Arabesque also alleged a cause of action in tort based upon Academy’s alleged wrongful interference with Harris’s contractual obligations to Arabesque. There was no jury issue submitted, and, therefore, no finding that Academy knowingly induced Harris to breach her contract thereby damaging appellant. To hold Academy liable for interference with the contractual relationship between Harris and Arabesque, it was incumbent upon Arabesque to demonstrate that Academy actually caused or brought about the interference. It is not enough that Academy merely reaped the advantages of a broken contract after the contracting party had withdrawn from the commitment on his own volition. Snowden v. Sorensen, 246 Minn. 526, 75 N.W.2d 795, 799-800 (1956); Wolf v. Perry, 65 N.M. 457, 339 P.2d 679, 681-82 (1959); Emery v. A & B Commercial Finishing Co., 315 P.2d 950, 952-53 (Okl.1957); see Fischnaller v. Sumner, 53 Wash.2d 332, 333 P.2d 636, 639 (1959). The employee’s breach of his own contract with Arabesque is, of course, not a basis for the tort of Academy. See Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800 (1903); Frost National Bank v. Alamo National Bank, 421 S.W.2d 153, 156 (Tex.Civ.App. — San Antonio 1967, writ ref’d n. r. e.); Davis v. Freeman, 347 S.W.2d 650, 654 (Tex.Civ.App. — Dallas 1961, no writ). We find no legal basis for tort liability against Academy. The trial court correctly sustained the motion for judgment non obstan-te veredicto in favor of Academy.

The Issue of Damages Against Sarasue Harris

Since appellee Harris has admitted liability to Arabesque for her breach of the contract, the only question is whether there is any evidence of probative force to support the jury’s finding that the damages reasonably sustained by Arabesque are the sum of $4,400. The question of insufficiency of the evidence to support the jury’s answer to this finding and the question of excessiveness of the verdict are not presented to us by crosspoints of error by appellee Harris. In resolving the question of “no evidence,” we look only to the testimony favorable to the jury’s verdict, and having done so we are of the opinion that the record does contain evidence of probative force to support the jury’s finding on damages.

Wanda Ingels, vice-president of Arabesque, testified that of the total number of students enrolled at the Arabesque studio in May 1972, 181 failed to return in September 1972. She testified that tuition for a single course of instruction at Arabesque is $110 for a forty-week year but that students were encouraged to take more than one series of lessons, with discounts being offered for additional lessons. A second series of lessons in the same semester is forty-five dollars for a twenty-week semester, and a third series of lessons is thirty-five dollars for a twenty-week semester. Of the 181 students who failed to return to Arabesque, thirty-eight were discovered to be students at Academy. This was ascertained from the names of those listed in Academy’s recital program for June 1973. She stated further that some of the names appeared on the program more than once, indicating that those students were taking more than one lesson a week. From this information, Mrs. Ingels estimated that Arabesque’s former students were taking seventy-three student hours of instruction at Academy and that these lessons would have netted approximately $6,400 to Arabesque studios had these students returned for continued instruction. She also testified that, in addition to the instruction fees, Arabesque would have sold to those students supplies in an amount of approximately $2,300, of which $600 would have been profit. She said, finally, that had the thirty-eight students remained at Arabesque, they would have been taught in existing classes, causing no increase in overhead expense.

Mr. Jerome C. Ingels, president of Arabesque, prepared a chart comparing the financial growth of the Arabesque studio located in Preston Royal to their Richardson studio. While these two geographical areas were similar in terms of population and income within the market, Mr. Ingles determined that gross income to the Richardson studio was $14,000 less than that of the Preston Royal studio during the time material to this litigation.

Harris testified that about thirty-two of her former students at Arabesque left Arabesque to attend Academy, where she had instructed them. Mr. Joe Taylor, secretary-treasurer of Academy testified that his company’s income during November and December 1972, was $2,521.83 and from January to June 1973, was $10,833.63 or a total of $13,355.46.

The courts have recognized the problem of ascertaining damages in cases involving the breach of non-competition contracts. Because of the very nature of these cases, it is seldom possible to establish with complete mathematical accuracy the damages resulting to plaintiff. While courts do not permit an award of damages based upon mere speculation or conjecture, they do not go so far as to require that there be a mathematical exactness of the amount of damages. Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957); Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938); Galveston, H. & S. A. Ry. v. De Groff, 102 Tex. 433, 118 S.W. 134 (1909). If an employee breaches his contract, it is proper for the jury to consider profits made by the subsequent employer of the defendant inasmuch as these profits may have, in some part, accrued to plaintiff in the absence of the breach. Welsh v. Morris, 81 Tex. 159, 16 S.W. 744, 745 (1891); Saye v. Garrard, 204 S.W. 684, 686 (Tex.Civ.App. — Texarkana 1918, writ ref’d).

In this case Arabesque presented evidence that possibly thirty-eight, and admittedly thirty-two, of its former students left the Richardson studio at the time Harris left its employment and went with her to the Academy studio. Harris admitted that she violated the contract of employment by teaching these former students of Arabesque at Academy. The jury was certainly entitled to take into consideration the amount of fees that Arabesque would have made had these students remained. The jury could infer that had Harris remained at Arabesque the students would not have attended Academy. In addition, the jury was entitled to consider the divergent profits which occurred between the Preston Royal and Richardson studios. While the evidence of damages was not subject to mathematical exactness, we think that it was adequate to enable the jury to make a fair and reasonable approximation of damages. See Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800 (1903); Southern Properties, Inc. v. Carpenter, 50 S.W.2d 876, 878 (Tex.Civ.App. — Dallas 1932, writ ref’d).

All of the cases relied upon by ap-pellee Harris deal with the question of sufficiency of the evidence to support jury verdicts in cases of a similar nature. None of these cases deal with the question of “no evidence” following judgment non obstante veredicto, as in the present suit. We conclude, from a review of the evidence presented, that there was some evidence of probative value to support not only the submission of'the damage issue to the jury but also the jury’s answer thereto. This being true, the trial court was not legally authorized to render judgment non obstan-te veredicto for Harris, and such judgment must be reversed.

Judgment

1.The judgment of the trial court denying recovery against Academy is affirmed.

2. The judgment of the trial court denying recovery by Arabesque against Harris, rendered non obstante veredicto, is reversed. Harris has not brought forward any crosspoints of error complaining of the excessiveness of the jury’s verdict, nor does she by crosspoints request that we reverse and remand the case because of the insufficiency of the evidence to support the jury’s answer to the special issue on damages. R. G. McClung Cotton Co. v. Cotton Concentration Co., 479 S.W.2d 733, 741 (Tex.Civ.App. — Dallas 1972, writ ref’d n. r. e.). Therefore, this court must render that judgment which the trial court should have rendered. Accordingly, the judgment of the trial court is reversed, and judgment is now rendered that Arabesque Studio, Inc. do have and recover of and from Sarasue Harris the sum of $4,400, together with interest thereon at the rate of six percent per annum from January 17, 1975, the date of judgment. It is further ordered that all costs be assessed against appellee Sarasue Harris, for all of which let execution issue.

Affirmed in part and reversed and rendered in part.


text:
    Ex parte Larry Julian BLACKMON, Relator.
    No. 16577.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Oct. 2, 1975.

      K. D. Kennan, Houston, for appellant.
    Anthony L. Vetrano, Jr., Houston, for appellee.
   EVANS, Justice.

Relator, Larry Julian Blackmon, filed this original petition for writ of habeas corpus, seeking review of an order holding him in contempt for failure to make child support payments. The order of commitment directed that relator should be confined in the county jail for a period of sixty days and until he should purge himself by paying his former wife, Patricia Louise Blackmon, the amount the court found relator to be in arrears, the sum of $1,000.00, and costs of court, including $200.00 attorney’s fees.

We sustain relator’s contention that he was denied due process in that the court overruled his motion for continuance and proceeded with the hearing in his absence.

Whether due process has been accorded to a party must generally be determined by an examination of the entire record, including all evidence presented at the contempt hearing. Ex parte Cox, 479 S.W.2d 110 (Tex.Civ.App. — Houston [1st] 1972, no writ). We briefly review the sequence of proceedings, as evidenced by the petition for habeas corpus and by the record made upon hearing of relator’s motion for continuance and of the petition for contempt.

The parties were divorced by decree dated July 17, 1972 under the terms of which Patricia Blackmon was granted custody of the minor child and relator was ordered to pay $125.00 per month as child support, $27.00 of which was to be paid directly to Mrs. Blackmon and $98.00 to “the nursery directly for the minor child.” By order entered November 25, 1974 in a related action filed by relator seeking modification of the original divorce decree, relator was named managing conservator of the minor child and ordered to continue making support payments in the amount of $125.00 monthly, but the modification order provided that the first payment was to be made to Harris County Probation Department on or before November 29, 1974 and all payments thereafter were to be paid into “a savings and loan association” to be held in trust for the use and benefit of the child pending further order of the court. On September 17, 1974, Patricia Blackmon had filed a ha-beas corpus action seeking return of the child to her and on October 4, 1974, the court by docket entry ordered return of the child to her by 12:00 noon on October 5, 1974. The written order to this effect was signed and entered on January 3, 1975, and on April 2,1975, the trial court by interline-ation purported to amend the order so as to require the return of the child on April 4, 1975. On April 1, 1975 Patricia Blackmon filed another petition for habeas corpus, asserting that she was entitled to have the child returned to her under the provisions of the divorce decree, and upon response filed by Larry Blackmon asserting that the issues had been determined by the court’s modification order of November 18, 1974, the court, on April 4, 1975, dismissed that action on the ground that it did not have jurisdiction. However, on May 30,1975, the court entered an order which purported to reinstate that proceeding on its docket, and by separate order on that same date, the court ordered that the child be returned to Patricia Blackmon on June 1, 1975.

This contempt proceeding was filed by Patricia Blackmon on April 1, 1975, and initially set for hearing on June 12, 1975. The record does not reflect that relator was served with copy of the original contempt motion, but the record shows that relator did respond to the amended petition for contempt which was set for hearing on June 19, 1975. In her amended petition for contempt, Patricia Blackmon complained of relator’s failure to make the child support payments as required by the terms of the original divorce decree and also complained that relator had failed to return the child to her on June 1, 1975, as directed by the aforementioned order.

On June 18, 1975, the day prior to the setting date for the contempt hearing, the trial court proceeded to hear relator’s motion for continuance. In this motion relator asserted that he had been involved in an accident and had been hospitalized in the Fayette Memorial Hospital in La Grange, Texas since June 2, 1975, and was unable to leave same for the purpose of appearing in court. Attached to relator’s motion for continuance was a statement bearing the letterhead of James T. Makinson, M.D., Physician and Surgeon, La Grange, Texas, which was apparently signed by Dr. Makin-son, and which stated: “Larry Blackmon will be hospitalized for 1-2 more weeks with severe neck injury, will be unable to travel for 6 weeks.”

While Dr. Makinson did not swear to the truth of this statement, relator’s attorney verified the statements in the motion to be true and correct. A second motion for continuance, apparently filed on June 18, 1975, set forth relator’s further contention that he had been unable to secure certain testimony needed for his defense, but that motion lacked proper verification since the acknowledgment stated only that the facts contained therein were true and correct to the best of affiant’s knowledge and belief. Bray v. Miller, 397 S.W.2d 103 (Tex.Civ.App. — Dallas, 1965, no writ).

Relator’s attorneys contended that relator’s testimony was vital to their defense of payment of past child support installments and a continuance was sought so that relator could be present to give his testimony or so that his deposition could be taken. At the hearing on the motion for continuance, the trial judge asked relator’s attorneys where the child was and upon being advised by the attorneys that they did not know, the trial judge responded that until he received an acceptable answer to that question, he was going to overrule the motion for continuance. On the following day, at the hearing on the contempt petition, the trial judge stated that he would grant the motion and reset the hearing if relator would produce the child by the next day. When relator’s attorneys again stated they did not know exactly where the child was and did not agree to produce the child, the court overruled their motion.

The trial court’s statements clearly indicate that his decision to deny relator’s motion for continuance was based upon relator’s failure or refusal to produce the child. Under the order dated November 29, 1974, modifying the terms of the original divorce decree, relator was entitled to custody and possession of the child, and until that order was set aside or legally superseded by an order awarding custody to Mrs. Blackmon, relator was under no obligation to deliver possession of the child to Mrs. Blackmon. Ex parte Peterson, 444 S.W.2d 286 (Tex.1969).

While a court ordinarily has broad discretion to either grant or deny a motion for continuance, the exercise of that discretion must be closely scrutinized in a proceeding which, as in the case at bar, is both civil and criminal in nature. A denial of a continuance must not be so arbitrarily exercised as to violate due process of law. Ex parte Hosken, 480 S.W.2d 18 (Tex.Civ.App. —Beaumont 1972, no writ). In our opinion the trial court’s action in proceeding with the hearing in the absence of relator constituted an abuse of discretion and as a result thereof, relator was unable to give testimony in defense of the charges made against him. We hold this to be a denial of relator’s right of due process and the order of commitment to be void.

We overrule relator’s contention that the commitment order is punitive in nature and exceeds the jurisdiction of the court. Article 1911, Tex.Rev.Civ.Stat.Ann., was repealed effective August 30, 1971 and Article 1911a, Tex.Rev.Civ.Stat.Ann., provides that every court other than a justice court or municipal court may punish any person guilty of contempt of court by a fine of not more than $500.00 or by confinement in the county jail for not more than six months or both. The order of commitment in the case at bar is well within the trial court’s statutory authority.

We also overrule relator’s contention that the pleadings did not give adequate notice of the arrearage claimed or the times when the arrearages allegedly occurred and thereby violated his right of due process of law. The amended petition for contempt alleged that relator had knowingly and without justification failed and refused to comply with the court’s order dated July 17, 1972, which awarded custody of the minor child to Patricia Blackmon and ordered relator to pay $125.00 per month as child support. In response to this pleading, relator filed a verified answer in which he alleged that he had fully complied with the child support order until the time it was superseded by an order of modification entered on November 25, 1974. Relator did not by special exceptions make known to the court that he desired more specific notice of the charges against him. Relator’s complaint that the petition lacked specificity should have been presented to the court upon special exceptions directed to the pleading. See Ex parte Woodruff, 483 S.W.2d 951 (Tex.Civ.App.—Texarkana 1972, writ dism’d, w. o. j., 487 S.W.2d 692).

It is our further view that the evidence does not support the finding of the court that relator’s arrearage in support payments amounted to the sum of $1,000.00. Under the terms of the order dated November 25,1974, modifying the provisions of the original divorce decree, relator was directed to make one payment to the Harris County Probation Department on or before November 29, 1974 and all subsequent payments were to be paid into “a savings and loan association.” Mrs. Blackmon admitted that she had received the payment through the Harris County Probation Department. Her testimony was that relator was three months in arrears as of August, 1974, and that except for the payment received through the Probation Department she had not received any other payments. Under the terms of the November 25, 1974, order, relator was not required to make any payments directly to Mrs. Blackmon and there was no testimony that relator had not complied with the terms of that order. The evidence presented would, at most, support a finding that relator was in arrears to Mrs. Blackmon in the sum of $625.00. Under the record before us we have serious question whether the evidence would support any order of contemptuous disobedience for alleged violation of the terms of either the original divorce decree or the order of modification. See Ex parte Stroope, 524 S.W.2d 378 (Tex.Civ.App. — Dallas 1975, no writ). However, our judgment is made without prejudice to any further action in the trial court with respect to the issue of contempt.

It is ordered that relator is discharged from custody under the order of commitment dated June 19, 1975. ,