author: CAMPBELL, Justice. BARROW, Justice, POPE, Justice,

text:
    William Howard STONER, Relator, v. Honorable Frank A. MASSEY et al., Respondents.
    No. B-7884.
    Supreme Court of Texas.
    June 13, 1979.
    Rehearing Denied July 18, 1979.

      Seary, Gwinn, Crawford, Mebus & Blake-ney, Robert A. Gwinn, Thomas E. Kurth and Charles L. Perry, Dallas, for relator.
    Gray, Whitten & Loveless, Jack W. Gray, John L. Sullivan and Michael J. Whitten, Denton, for respondents.
   CAMPBELL, Justice.

The opinion of the Court delivered March 14, 1979, is withdrawn. The following is now the opinion of the Court.

This is a mandamus action brought by William Howard Stoner wherein Willa Hudgins has intervened. Hudgins obtained judgment against Stoner in the trial court and Stoner perfected an appeal to the Court of Civil Appeals, Second Supreme Judicial District. The Court of Civil Appeals wrote three opinions, the first dated May 25,1978. Both parties filed motions for rehearing and on June 22 the court handed down its second opinion which reversed and remanded the cause for another trial, suggested a remittitur by Hudgins as a basis for reforming and affirming the trial court, and taxed all costs against Hudgins. Stoner v. Hudgins, 568 S.W.2d 898.

Both parties filed second motions for rehearing and Hudgins also filed, in the alternative, a remittitur. On July 27 the court handed down a third opinion entitled “Supplemental Opinion on Motion for Rehearing.” A new judgment was rendered which provided:

. the judgment of this court on June 22, 1978, which reversed and remanded the cause for another trial is set aside and vacated with judgment reforming that of the trial court as to amount substituted therefor, with attendant opinion dated June 22, 1978 left undisturbed, although supplemented by opinion dated July 27, 1978.
It is hereby ordered that no further motion for rehearing will be entertained in this cause; none may be filed.
It is further ordered that all costs incurred by reason of this appeal be taxed one-half against the appellant, William Howard Stoner, and his surety, Federal Insurance Company, and one-half against the appellee, Willa Hudgins, for which let execution issue, and that this decision be certified below for observance.

Stoner timely tendered a third motion for rehearing with three points of error complaining of the adjudging of one-half of the costs to him. The clerk refused to file the motion. Hudgins did not tender a third motion, but instead filed an application for writ of error to this Court.

Stoner now requests this Court to issue a writ of mandamus to the Honorable Frank A. Massey, Joe Spurlock and William A. Hughes, Jr., of the Court of Civil Appeals and Yvonne Palmer, Clerk, requiring them to file and rule on his third motion for rehearing. Hudgins, by way of intervention, asks that the Court of Civil Appeals be directed by mandamus to vacate that portion of the July 27 order prohibiting the entertainment or filing of third motions for rehearing. In addition, she asks that both parties be allowed to amend their respective applications for writ of error to show reference to their assignments of error as being germane to the third motions for rehearing.

The questions for this Court to decide are: (1) Does the last judgment require the filing of a third motion for rehearing in order for this Court to obtain jurisdiction of the appeal. (2) Is Stoner entitled to a writ of mandamus directing the filing and ruling of his tendered but not filed third motion for rehearing. (3) Is Hudgins entitled to a writ of mandamus directing the Court of Civil Appeals to set aside that portion of the July 27 judgment directing that no further motions for rehearing be filed and allowing her to file a third motion for rehearing within 15 days from the date of such directive.

The third judgment did require a motion for rehearing in order for the Supreme Court to have jurisdiction of an appeal. Rule 458, Tex.R.Civ.P., provides that if the Court of Civil Appeals hands down an opinion in connection with the overruling of a motion for rehearing, a further motion for rehearing may, if the losing party deems same necessary, be filed within 15 days after such opinion is handed down. This may be done as a matter of right whether or not there is any sound or reasonable basis for the conclusion that a further motion is necessary. Honeycutt v. Doss, 410 S.W.2d 772 (Tex.1966). This right must be protected because a new or further motion for rehearing is impliedly always required when a prior motion is granted and the judgment is vacated and new judgment is entered. Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183 (Tex.1964).

By its third judgment the court vacated its prior judgment. The new judgment accepted the remittitur filed by Hud-gins and adjudged costs 50% to each party. This new judgment is the final judgment for purposes of appeal, City of West Lake Hills v. State ex rel. City of Austin, 466 S.W.2d 722 (Tex.1971), and it was necessary for the parties to file third motions for rehearing in order for this Court to obtain jurisdiction.

The order prohibiting the filing of further motions for rehearing is one which. the Court of Civil Appeals was not authorized to enter. The failure of a court to observe a mandatory statutory provision conferring a right or forbidding particular action will render its order or judgment invalid and this Court has the power through an exercise of its original jurisdiction to order a trial court to vacate and expunge an invalid order. State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279 (1958). This rule also applies to invalid orders of the Courts of Civil Appeals. Art. 1733, V.A.T.S.

There are three requisites to a mandamus: a legal duty to perform a nondis-cretionary act; a demand for performance and a refusal. The duty to file the motion is that of the clerk, rather than the court. Rule 458, Tex.R.Civ.P. Mandamus will issue to compel the clerk of a Court of Civil Appeals to file a motion for rehearing, Roth v. Murray, 105 Tex. 6, 141 S.W. 515 (1911), if a motion is timely presented to the clerk and filing is denied. Hursey v. Bond, 141 Tex. 337, 172 S.W.2d 305 (1943).

On July 31, Stoner mailed a letter to the clerk, with a copy to Hudgins, enclosing his third motion for rehearing and a letter brief setting out the necessity for filing a third motion for rehearing under Rule 458, Tex.R.Civ.P. On August 3 Stoner personally presented the motion to the clerk and court and filing was refused in writing. Hudgins was mailed a copy of this refusal. On August 28 Stoner and Hudgins filed applications for writ of error. Stoner assigned error to the invalid order and the clerk’s refusal to file the motion for rehearing and alternatively requested leave to file a petition for mandamus. On December 20 we granted leave to Stoner to file the petition for mandamus with leave to intervene granted to Hudgins.

On December 26 Stoner filed his petition for mandamus to require respondents to file and rule on his motion. Hudgins has not presented a third motion and it was not until January 5 that she filed her petition for mandamus in which she stated:

In obedience to this direct and unequivocal order of the Court of Civil Appeals, the Intervenor-Appellee did not file a further Motion for Rehearing, which Ap-pellee would have filed, but for said direct Order, although Intervenor-Appellee believed, and now believes, that no further Motion for Rehearing was required under Rule 458, T.R.C.P.

The order of July 27 prohibiting the entertainment or filing of further motions for rehearing is one which the Court of Civil Appeals was not authorized to enter. Petitioner Stoner is entitled to a writ of mandamus directing the clerk to file and the Court to consider his third motion for rehearing. This writ shall be issued should the Second Court of Civil Appeals and the clerk fail to act in accordance with this opinion.

The final issue we must decide is whether Hudgins should also be granted relief. While it is true that Hudgins did not attempt to file a third motion for rehearing, it would have been pointless to make such an attempt in view of the language of the last judgment of the Court of Civil Appeals. The action of the clerk in refusing to file Stoner’s third motion makes that conclusion all the more certain. We therefore hold that Hudgins is also entitled to a writ of mandamus.

It is to be stressed that this is a mandamus proceeding. We are not acting upon an application for writ of error, and we do not overrule our holdings in Oil Field Haulers Association v. Railroad Commission, 381 S.W.2d 183 (Tex.1964), or Honeycutt v. Doss, 410 S.W.2d 772 (Tex.1966), with respect to the necessity of filing motions for rehearing as a predicate for Supreme Court review. It is true that Hudgins did not file a third motion for rehearing, but this failure must be viewed in light of the language in the Court of Civil Appeals judgment denying the entertainment or filing of such motions. She should not be penalized for obeying the orders of the Court of Civil Appeals.

We hold invalid the portion of the Court of Civil Appeals judgment denying the entertainment or filing of third motions for rehearing. The clerk is directed to file the motion for rehearing tendered by Stoner and the Court of Civil Appeals is directed to consider and rule upon it. Hudgins has 15 days from the effective date of the judgment rendered pursuant hereto to file a motion for rehearing in the Court of Civil Appeals. Should she attempt to file such motion, the clerk is directed to allow the filing and the Court of Civil Appeals is directed to consider and rule upon same.

Dissenting Opinion by BARROW, J., joined by STEAKLEY, POPE and McGEE, JJ.

Separate Dissenting Opinion by POPE, J.

BARROW, Justice,

dissenting.

I respectfully dissent from that part of our judgment which allows intervenor Ms. Hudgins fifteen days from this date to file her motion for rehearing. This holding thereby enlarges the time for filing such motion to a period in excess of 300 days from the date of the court of civil appeals’ final judgment, July 27, 1978. Rule 458 requires that a motion for rehearing must be filed within fifteen days from the date of the final judgment and under the clear language of Rule 5 and the prior holdings of this Court, such period is mandatory and we have no discretion to enlarge this time. See Honeycutt v. Doss, 410 S.W.2d 772 (Tex.1966); Smith v. Harris County-Houston Ship Chan. Nav. Dist., 160 Tex. 292, 329 S.W.2d 845 (1959); Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948).

I agree that the court of civil appeals erroneously said in its opinion of July 27, 1978 that:

“No further motion for rehearing in this case will be entertained; none may be filed.”

It is now settled law that a dissatisfied litigant has an absolute right to file a motion after the court of civil appeals hands down an opinion in connection with the overruling of a motion for rehearing, Honeycutt v. Doss, supra; and must do so as a predicate for appeal if the judgment is changed in any respect. Oil Field Haulers Ass’n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964).

This requirement was recognized by relator Stoner who timely tendered his motion for rehearing to the clerk of the court of civil appeals. Upon the clerk’s refusal to file same, Stoner promptly filed this petition for mandamus to compel the clerk to file the required motion and for the court of civil appeals to consider same.

On the other hand, Ms. Hudgins has never tendered a motion for rehearing. She does not have a point in her application for writ of error complaining of the recitation in the court of civil appeals final judgment which states that a further motion for rehearing would not be entertained or filed. It was not until January 5, 1979, almost six months after the final judgment, and then only by alternative prayer in her intervention in Stoner’s application for mandamus, did Ms. Hudgins request that she be given an opportunity to file a motion for rehearing. Ms. Hudgins vigorously urges by her intervention that no further motion for rehearing was required after the judgment of July 27 was rendered. The record does not show that she has ever prepared a motion for rehearing, much less that she tried to file one.

I understand the decision confronting both parties after the court of civil appeals rendered the new judgment on July 27. I would suggest however that it is not unusual for advocates to disagree with rulings of trial or appellate courts. In such event, the advocate knows that the record must be protected so that the alleged erroneous action may be subsequently reviewed by the proper forum. It cannot be seriously suggested that Stoner was contemptuous of the ruling of the court of civil appeals when he timely tendered his motion for rehearing and subsequently sought a review of that court’s action by his petition for mandamus. In fact, such procedure is suggested by Rules 389 and 389a.

Rule 458 requires that a motion for rehearing be timely filed wherein the assignments of error are distinctly specified. Rule 469(c) provides that the points of error in the application for rehearing must have been assigned as error in the motion for rehearing in the court of civil appeals. Clearly the court of civil appeals has no authority to supersede or change the rules of civil procedure. Yet such result has been accomplished by the majority opinion here which permits the court of civil appeals to nullify the mandatory requirement that the motion for rehearing be timely filed. If this is allowed, it would appear to logically follow that other mandatory provisions in our rules of civil procedure might be nullified by the erroneous actions of other lower courts.

It is suggested that the erroneous statement by the court of civil appeals that no further motion for rehearing could be filed constitutes good cause for enlarging the time for Ms. Hudgins to file a motion for rehearing. Such suggestion overlooks the express provisions of Rule 5 and our prior decisions that the time for filing such a motion cannot be extended, even for good cause.

Article 1877, Texas Revised Civil Statutes Annotated governed the practice relating to motions for rehearing prior to the adoption of the Texas Rules of Civil Procedure, effective September 1, 1941. It was held under this statute that the time for filing a motion for rehearing could be extended for good cause. Rule 5 was drafted and adopted to specifically provide that the court “may not enlarge the period for taking any action under the rules relating to new trials or motions for rehearing . . . .”

In Reynolds v. Dallas County, supra, this Court was squarely presented with the question of whether we had authority under Rules 458 and 5 to extend or enlarge the time provided by Rule 458 in which motions for rehearing might be filed when good cause for delay is shown. In holding that we did not have such authority, we said:

“The language used in Rule 468 is clear, and no exception is prescribed for varying the time in which an application for writ of error must be filed. The language used in Rule 5 and in Rule 458 is also plain and specific. It is provided that a motion for rehearing must be filed within the fifteen-day period mentioned, or a request for an enlargement of the time must be made within that period.”

This holding has been followed without exception until the present case. See Honeycutt v. Doss, supra; Ector County Ind. School District v. Hopkins, 518 S.W.2d 576 (Tex.Civ.App.—El Paso, no writ); Saunders v. Martin, 390 S.W.2d 513 (Tex.Civ.App.—Texarkana 1965, no writ); Sales and Cliff, Jurisdiction in the Texas Supreme Court and Courts of Civil Appeals, 26 Baylor L.Rev. 501, 517 (1974).

This jurisdictional requirement is not waived or met by the timely motion for rehearing tendered by relator Stoner. A similar contention was presented and rejected by this Court in Oil Field Haulers Ass’n v. Railroad Commission, supra wherein we held:

“This Court has no jurisdiction of a party’s application unless and until a motion for rehearing has been filed in and overruled by the Court of Civil Appeals. Bain Peanut Co. of Texas v. Pinson & Guyger, 119 Tex. 572, 34 S.W.2d 1090; Rule 468.
“Finally, Hill & Hill cannot take a ‘free ride’ on the Second Motion filed by Haulers even if we have jurisdiction of that application. The situation is analogous to that in which a party attempting to perfect an appeal from a trial court judgment seeks to avail himself of the benefit of another party’s motion for new trial. See Angelina County v. McFarland, Tex. Sup., 374 S.W.2d 417, 421; Neuhoff Bros., Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434.”

I would respectfully suggest that if a change is to be made in this settled rule of practice, it should be done by amendment to the Texas Rules of Civil Procedure so that the change may be uniformly applied. Under the holding of the majority, Rules 458 and 5 are mandatory except in the type of situation herein presented. Despite the stated limitation, such a holding can only confuse the Bench and Bar about a heretofore settled rule of practice. More importantly, it is not equal justice under the law.

STEAKLEY, POPE and McGEE, JJ., join in this dissent.

Dissenting Opinion by POPE, J.

POPE, Justice,

dissenting.

I join in the dissent but would add this comment. This court has ordered a mandamus commanding the clerk of the court of civil appeals to file Ms. Willa Hudgins’ motion for rehearing that she has never tendered for filing. The document had not been prepared up to the time this cause was orally argued to this court, and so far as anyone knows, may never be prepared or tendered. But, the court has ordered the clerk to file it. The clerk has not failed in the performance of any duty with respect to Willa Hudgins’ phantom motion.

      . All references to rules are to Texas Rules of Civil Procedure.'

      . This rule requires in part that the application for writ of error be filed within thirty days after the overruling of a final motion for rehearing.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marshall G. COCHRAN, Petitioner, v. AMERICAN SAVINGS AND LOAN ASSOCIATION OF HOUSTON, Respondent.
    No. B-7892.
    Supreme Court of Texas.
    July 11, 1979.
    Rehearing Denied Oct. 17, 1979.

      Reynolds, Allen & Cook, Stanley B. Bin-ion, Houston, for petitioner.
    Butler, Binion, Rice, Cook & Knapp, Jonathan S. Day and William J. Moran, Houston, for respondent.
   ON MOTION FOR REHEARING

PER CURIAM.

This is a usury action in which Marshall Cochran sued American Savings and Loan Association seeking to recover statutory penalties under Texas Revised Civil Statutes Annotated article 5069 — 1.06. Ameri-can Savings denied the allegations of usury and counterclaimed for a deficiency judgment. After a jury trial, the court rendered judgment that Cochran take nothing and American Savings recover its deficiency. The court of civil appeals reversed the judgment and remanded the cause to the trial court in its entirety in the interest of justice. 568 S.W.2d 672.

We agree with the holding of the court of civil appeals that the jury’s responses to the issues concerning American’s intent to obtain interest in excess of ten percent are immaterial. Intent in usury cases does not mean intent to charge a usurious rate of interest. Rather, it means intent to make the bargain made. Miller v. First State Bank, 551 S.W.2d 89 (Tex.Civ.App.—Fort Worth 1977), ait’d as modified, First State Bank of Bedford v. Miller, 563 S.W.2d 572 (Tex.1978). The subjective intent of the lender is irrelevant if, in fact, the lender has contracted for, charged or received interest on a loan in excess of the maximum permitted by law. To avoid the penalties imposed by article 5069 — 1.06, the lender is required to plead, prove, and obtain a finding that his contract for, charge or receipt of usury was a result of accidental and bona fide error.

Having found error in the trial court judgment, the court of civil appeals is authorized, in a proper case, under Rule 434, Texas Rules of Civil Procedure, to remand the cause in the interest of justice. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966). Rule 434, however, further provides “if it appears to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error .. ”

This cause of action was submitted to the jury on fifty-four special issues involving both the usury allegations raised by Cochran and fraud/misrepresentation allegations raised by American Savings. The error asserted on appeal involves issues which concern only the usury allegations raised by Cochran. We view the usury issues as clearly separable from the fraud/misrepresentation issues. The trial upon remand should not include a retrial of the fraud issues which have already once been fairly tried.

Pursuant to Rule 483, Texas Rules of Civil Procedure, we grant Cochran’s application for writ of error on motion for rehearing and, without hearing oral argument, reform the judgment of the court of civil appeals to remand the cause to the trial court for a retrial of the issues other than the fraud issues. As reformed, the judgment of the court of civil appeals is affirmed.


author: ROBERTS, Judge. PHILLIPS, Judge.

text:
    Ex parte Alton McIVER, Jr.
    No. 60072.
    Court of Criminal Appeals of Texas, Panel No. 2.
    April 11, 1979.
    Rehearing Denied Sept. 19, 1979.

      A. Deniz Tor, J. Douglas Tinker, Corpus Christi, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and ODOM, JJ.
   OPINION

ROBERTS, Judge.

This is a post-conviction application for habeas corpus relief. The applicant did not present any evidence at the hearing in the convicting court, but we have a record of papers filed in the cause. It appears that on May 6, 1975, a jury found the applicant guilty of felony possession of marihuana. The issue of punishment was submitted to the jury with instructions which included six verdict forms. These verdict forms would permit the jury to assess, respectively:

1. confinement with probation recommended;
2. confinement with probation recommended, and a fine;
3. confinement with probation recommended, and a fine with probation recommended;
4. confinement;
5. confinement, and a fine; or
6. confinement, and a fine with proba tion recommended (only on the fine).

The jury chose form number 6, and it did “assess his punishment at 5 years confinement in the Texas Department of Corrections and hereby further assess a fine in the amount of 5.000 [sic] Dollars and we, the jury, do hereby recommend that such fine be probated for a period of 10 years.” We find an instrument dated June 16, 1975, signed by the district judge, which says (in part),

“It is, therefore, Considered and Adjudged by the Jury that the defendant, ALTON McIVER, JR., is guilty of the offense of Possession of Marijuana, a felony, and that he be punished by confinement in the State Penitentiary for a term of not more than five (5) years nor less than two (2) years, and a fine in the amount of $5,000.00 with recommendation the fine be probated.
“The defendant advised that he did not waive the ten (10) days prior to sentence. On the 16 day of June, 1975, the defendant, ALTON McIVER, JR., and his attorney, appeared in Court for sentencing and the defendant was sentenced to serve not less than two (2) years nor more than five (5) years in Texas Department of Corrections, and
“It is, further, CONSIDERED, ORDERED AND DECREED by the Court that the imposition of the fine herein be and the same is hereby suspended and the defendant, ALTON McIVER, JR., as to such fine, shall be and is now placed upon probation for the term of ten (10) years, upon the following terms and conditions, to-wit: [a list of terms and conditions].”

The applicant alleges two grounds for relief. The first ground is that the verdict, judgment, and sentence are void because they make the applicant liable for confinement in the state penitentiary for a term of 15 years, which is more than the maximum prescribed punishment of 10 years (Texas Revised Civil Statutes, Article 4476 — 15, Section 4.05(b)(1)). We cannot agree that these instruments can be construed to impose 15 years’ confinement. It seems clear that the sentence of confinement is limited to 5 years and that the 10 years’ probation (which began “now,” i. e., on sentencing day), if revoked, would result only in imposition of a $5,000 fine, not in additional penitentiary time.

We do agree that the verdict, judgment, and sentence are void because they impose a punishment not authorized by law.

At the time when the applicant was tried and sentenced, Section 3a of the Adult Probation, Parole, and.Mandatory Supervision Law (Texas Code of Criminal Procedure, Article 42.12) provided (in part): “Where there is a conviction in any court of this State and the punishment assessed by the jury shall not exceed ten years, the jury may recommend probation upon written sworn motion made therefor by the defendant, filed before the trial begins. . In all eligible cases, probation shall be granted by the court if the jury recommends it in their verdict. If probation is granted by the jury the court may impose only the conditions which are set forth in Section 6 hereof.” Therefore, the first sentence gives the jury the option either to recommend probation of the punishment it has assessed (as in verdict forms 1 and 3 submitted in this case), or to refrain from such recommendation (as in forms 4 and 5). Effective September 1, 1975 (after the applicant was sentenced), the Legislature added a second sentence to the section, specifically authorizing the jury to assess a fine even though it has recommended probation of other punishment (as in form 2). Neither before nor after this amendment did Section 3a specifically authorize the jury to do the opposite: to assess other punishment (such as confinement) even though it has recommended probation of a fine which it has assessed (as in form 6, which the jury used in this case). Specific authority being absent, can authority for such a verdict be implied from the general probation authority given the jury by the first sentence of the section? We hold that it cannot.

The act of the Legislature adding specific authority for the jury to impose a fine in addition to probated confinement implies that the general probation authority in the first sentence of Section 3a did not authorize such a verdict. This also implies that the general probation authority would not authorize a verdict like the one in this case which probates some, but not all, of the assessed punishment.

Prior decisions of this Court, construing a similar statute, reached the same conclusion. Like the first sentence of Section 3a of Article 42.12, the Misdemeanor Probation Law gives the jury a general authority to recommend probation. We have held that the statute does not authorize the jury to assess confinement (without a recommendation of probation) and a fine with a recommendation of probation. Taylor v. State, 549 S.W.2d 722 (Tex.Cr.App.1977). That is exactly what the jury did to this applicant. We also have held that the statute does not authorize the jury to impose a non-probated penalty to be exacted from the defendant, to be followed by a period of probation. Batten v. State, 549 S.W.2d 718 (Tex.Cr.App.1977). This is essentially what the jury did to this applicant. The reasoning of those opinions equally applies to the felony probation statute, Section 3a of Article 42.-12.

This conclusion is strengthened by evidence in other sections of Article 42.12 which imply that confinement followed by a probated fine was not contemplated by the Legislature. Section 2.b of Article 42.12 defines “probation” as “the release of a convicted defendant . . . .” (Compare Section 2(2) of Article 42.13, which is substantially the same.) This implies that release is an essential ingredient of probation. Release is an ingredient of every possible jury verdict granting felony probation except the kind of verdict returned in this applicant’s case. Compare verdict forms 1, 2, and 3 with form 6, above.

We also note that Section 6.h of Article 42.12 provides that the court can order a defendant to pay his assessed fine, without a sentence, while his other punishment is probated. There is no corresponding provision for the court to order a defendant to the penitentiary, without a sentence, while his other punishment (such as a fine) is probated.

What would happen to the applicant if he violated a condition of his probation after he had completed his sentence of confinement? Presumably the court would order his probation revoked. Section 8(a) of Article 42.12 authorizes the revoking court to “reduce the term of imprisonment” for certain reasons, but it does not speak to reduction of a probated fine, which apparently was not contemplated.

Upon revocation, the court presumably would have to enter a sentence imposing the fine. Therefore, there would be two sentences in the cause, a procedure otherwise unknown in Texas.

For these reasons, we hold that a jury in a felony-case is not authorized to assess a punishment of both confinement (without a recommendation of probation) and a fine with a recommendation of probation. Courts should not submit forms such as form 6 used in this case.

In his second ground for relief, the applicant argues that the jury intended to give him probation, and that therefore both the confinement and the fine should be probated. To the contrary, it is clear that the jury’s verdict would probate only the fine. Courts have no power to change a jury verdict unless it is with the jury’s consent and before they have dispersed. Smith v. State, 479 S.W.2d 680 (Tex.Cr.App.1972); see Texas Code of Criminal Procedure, Article 37.10. The jury also could have been retired again to deliberate. Texas Code of Criminal Procedure, Article 37.-10; Jones v. State, 511 S.W.2d 514 (Tex.Cr.App.1974). We cannot change this clear verdict.

The true problem with this verdict is that, because it assesses confinement followed by probation, which is not authorized by law, it was “void at its inception.” Smith v. State, 479 S.W.2d 680, 681 (Tex.Cr.App.1972). The corresponding judgment and sentence also must be void. We will grant habeas corpus relief to a person in custody under a sentence which is void because the punishment is unauthorized. Ex parte Harris, 495 S.W.2d 231 (Tex.Cr.App.1973).

The applicant is ordered released from all forms of custody, including confinement, parole, and probation, imposed by the judgment or sentence in cause 2830 in the 24th Judicial District Court of Jackson County. He is ordered delivered to the Sheriff of Jackson County to answer the indictment pending in that cause.

DOUGLAS, J., dissents.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

A panel of this Court, in a decision which we are now asked by the State to reconsider, held that a jury does not have the authority under Article 42.12, V.A.C.C.P., to assess a defendant’s punishment at a term of confinement and a fine, with only the fine being probated.

In its motion for rehearing, the State relies on Section 1 of Article 42.12, supra, which provides in part:

It is the purpose of this Article to place wholly within the State courts of appropriate jurisdiction the responsibility for determining when the imposition of sentence in certain cases shall be suspended, the conditions of probation, and the supervision of probationers, in consonance with the powers assigned to the judicial branch of this government by the Constitution of Texas. . . . It is the final purpose of this Article to remove from existing statutes the limitations, other than questions of constitutionality, that have acted as barriers to effective systems of probations ... in the public interest.

This provision serves as a guide for the interpretation of the statute. It expresses the spirit of the statute, and does not permit us to ignore the plain implication of the statutory language. Other provisions of Article 42.12, supra, make it clear that a punishment of imprisonment may not be combined with a probated fine.

In Section 2 of the statute, “probation” is defined as “the release of a convicted defendant by a court under conditions imposed by the court for a specified period during which the imposition of sentence is suspended.” (Emphasis added) As was noted in the opinion on original submission, this definition implies that a defendant placed on probation shall be released from confinement. That is not the case if the defendant is confined for a term of years and at the same time is placed on probation with respect to his fine.

Section 3 of the statute provides in part that trial judges have the power to suspend the imposition of sentence and “place the defendant on probation or impose a fine applicable to the offense committed and also place the defendant on probation as hereinafter provided.” This language, which has been in the probation statute of this State since 1947, clearly distinguishes between an assessment of probation and an assessment of a fine.

Section 3a of the statute was amended in 1975 to provide in part that

When the jury recommends probation, it may also assess a fine applicable to the offense for which the defendant was convicted. .

The same distinction between the assessment of probation and the assessment of a fine is made here. This indicates that the Legislature did not contemplate that fines would be probated.

Section 3 states:

In all cases where the punishment is assessed by the Court it may fix the period of probation without regard to the term of punishment assessed, but in no event may the period of probation be greater than 10 years or less than the minimum prescribed for the offense for which the defendant was convicted. (Emphasis added)

This language indicates that probation is to be applied only to an assessment of punishment which includes a term of years. This excludes the probation of a fine by itself. See also Section 8(a) of the statute, which provides that if probation is revoked, the court may reduce “the term of imprisonment originally assessed” if it determines that it is in the best interests of society and the probationer.

At the time petitioner was sentenced Section 3a provided in relevant part:

Where there is a conviction in any court of this State and the punishment assessed by the jury shall not exceed ten years, the jury may recommend probation upon written sworn motion made therefor by the defendant, filed before the trial begins. ... In all eligible cases, probation shall be granted by the court, if the jury recommends it in their verdict .

The jury’s option was limited to either recommending or not recommending probation of the punishment which the jury decided to impose. See the opinion on original submission. For felonies, such punishment necessarily includes a term of imprisonment.

Finally, the 1975 amendment of Section 3a specifically gave the jury, like the judge, the power to assess a fine in addition to recommending that the defendant be placed on probation with respect to his imprisonment. The Legislature did not provide, and has not ever provided, that the jury or judge could do the converse, i. e., assess a term of imprisonment and probate the fine. It is a well-known rule of statutory construction in this State and elsewhere that the express mention or enumeration of one person, thing, consequence, or class is tantamount to an express exclusion of all others. See 53 Tex.Jur.2d, Statutes, Section 142, pp. 205-207; Peterson v. Calvert, 473 S.W.2d 314 (Tex.Civ.App.1971, writ ref’d). This rule has been pronounced a logical, sensible, and sound rule of statutory construction. See Carp v. Texas State Board of Examiners of Optometry, 401 S.W.2d 639 (Tex.Civ.App.1966), aff’d, 412 S.W.2d 307 (Tex.1967); City of Dallas v. Yarbrough, 399 S.W.2d 938 (Tex.Civ.App. 1966, no writ); Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652 (1923). In this case the Legislature’s specific instruction that the jury can assess a fine applicable to the offense when it recommends probation of the term of imprisonment implies that the jury cannot do the converse without express statutory authority.

For the reasons expressed in this opinion and the prior panel opinion we conclude that this case was properly decided on original submission. Article 42.12, § 1, supra, does not require a different result.

The State’s motion for rehearing is denied.

      . “When the jury recommends probation, it may also assess a fine applicable to the offense for which the defendant was convicted.” Added by 1975 Texas Acts, Chapter 110, Section 1.

      . “Sec. 3. (a) A defendant who has been found guilty of a misdemeanor wherein the maximum permissible punishment is by confinement in jail or by a fine in excess of $200.00 or by both such fine and imprisonment may be granted probation if [the defendant meets conditions (1) through (4)].
      “(b) If a defendant satisfies all the requirements of Section 3(a)(1), (2), (3), and (4) of this Article, and the jury hearing his case recommends probation in its verdict, the court must grant the defendant probation. [Rest of subsection omitted.]” Texas Code of Criminal Procedure, Article 42.13.


author: W. C. DAVIS, Judge. CLINTON, Judge,

text:
    Marie TONEY, Appellant, v. The STATE of Texas, Appellee.
    No. 56710.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 18, 1979.
    Rehearing Denied Oct. 10, 1979.

      John T. Montford, on appeal only, Lubbock, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, CLINTON and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

Following appellant’s conviction for burglary, the trial court assessed punishment at eight years confinement. On appeal three grounds of error are presented including a challenge to the sufficiency of the evidence. We affirm.

The record reflects that on May 8, 1975, approximately $3,000 worth of merchandise was taken in the burglary of the Amherst Variety and Department Store in Amherst, Texas. Investigation at the scene produced a bundle of clothing wrapped in a bedspread in the alley behind the store. Officers also testified that footprints found in the alley appeared to have been made by a female.

Evidence adduced by the State established that appellant and a companion (Deborah Davis) were in the store on May 7th in the late afternoon. At closing time, appellant and her friend were asked to leave by the owner who proceeded to lock the building. No one had permission to enter the store.

The record reflects that there were no witnesses to the break-in and burglary of the store. However, at about 5:30 a. m. on May 8th, the occupant of the residence behind the store was awakened by loud noises and arose in time to see a “light top” convertible with the trunk lid open drive down the alley. Appellant and Davis traveled to Amherst from Lubbock in a green Oldsmobile convertible having a light-colored top.

The owner of the adjoining business discovered the burglary on May 8th. The ensuing police investigation focused on appellant, Deborah Davis, and appellant’s niece, Gracie Wilson, who lived in Amherst.

Sheriff E. D. McNeese went to the home of Gracie Wilson in Amherst; however, appellant was not there. Sheriff McNeese spoke briefly with Wilson, then went next door to an adjacent vacant house. Returning shortly, the Sheriff found some clothing lying at the edge of the yard of the vacant house. This clothing was later identified by the store owner as part of the merchandise removed during the burglary.

On May 20th, Sheriff McNeese spoke with appellant at the Lubbock County jail where she was in custody for probation revocation. In the course of the conversation, Sheriff McNeese noted that appellant was wearing clothing resembling that taken in the Amherst burglary. This clothing, confiscated in a later raid on an apartment in Lubbock, was identified by the store owner as merchandise taken during the burglary.

In mid-August 1975, the Lubbock Police Department executed a search warrant on an apartment leased by appellant and Davis. The warrant specified clothing articles taken in a burglary in Henderson, Texas. One of the officers, Texas Ranger Jackie Peoples, was aware of the Amherst burglary. In the course of this search, Ranger Peoples seized or directed the seizure of several articles of clothing resembling those taken in the Amherst burglary. This clothing was taken to the police department in Lubbock where it was later identified as property taken in the Amherst burglary.

The identification of all the clothing articles by the store owner was by color, type, style and brand name based on personal familiarity with the merchandise in the store. Appellant argues such an identification based on “quality” discredits the testimony and destroys any link between appellant and the burglary. It is for the jury to determine the credibility of testimony and to determine the weight to be given such testimony. On appeal, our task is to review the evidence in the light most favorable to the verdict of the jury. We are therefore bound to accept the jury’s expressed belief that the clothing identified was in fact merchandise removed from the Amherst store. Further, we hold the evidence, albeit circumstantial, is sufficient to sustain appellant’s burglary conviction. Robinson v. State, 570 S.W.2d 906 (Tex.Cr.App.1978). Appellant was shown to have been in personal possession of clothing taken from the Amherst store on May 20th, twelve days after the burglary. Such recent possession, unexplained by the record, provides sufficient evidence to sustain appellant’s conviction. McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966).

In her second ground of error, appellant complains that the trial court erred in permitting the State to examine the jury panel on punishment during voir dire. Appellant supports this ground by pointing to the fact that she had not yet elected to go to the jury for punishment. Further, appellant argues that by not making a timely election to go to the jury for punishment, she has elected to go to the judge.

Appellant argues correctly that where no election is filed, the trial court has the duty to assess punishment. Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977). Article 37.07, Sec. 2(b), Vernon’s Ann.C.C.P. provides:

“. . . Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, . (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury.”

Under the language of Art. 37.07, See. 2(b), Vernon's Ann.C.C.P., failure to make an election in writing to have the jury assess punishment is not an election to have the judge assess punishment. Rather, the failure of appellant to file an election merely means that by operation of the Code of Criminal Procedure, the court must assess punishment. Until the time has passed to make this election, the trial judge cannot know whether the jury or the bench will assess punishment. Our task, therefore, is to determine when an election must be filed, then determine if that time had passed.

The election must be made at the time the defendant enters his plea in open court. This has been interpreted to mean at the time the defendant makes his plea to the indictment before the jury. See Donald v. Jones, 445 F.2d 601 (5th Cir. 1971). In appellant’s case, the alleged error occurred during voir dire of the jury panel, clearly well before any plea to the indictment by appellant. Therefore, appellant still had the election available and could choose to exercise it. Under such circumstances, appellant cannot complain that the State examined the jury panel on punishment. The trial court properly overruled appellant’s objection.

In her final ground of error, appellant argues that the admission, over objection, of the search warrant, supporting affidavit, and officer’s return constituted prejudicial evidence of an extraneous offense. These documents referred to clothing taken during a burglary in Henderson, Texas, and as appellant points out, the evidence never showed that appellant perpetrated the Henderson burglary.

Appellant’s contention on this ground comes within our decision in Ward v. State, 581 S.W.2d 164 (1979), and cases cited therein. Therefore, appellant’s third ground of error is overruled.

The judgment is affirmed.

CLINTON, Judge,

dissenting.

Appeal follows conviction for burglary of a building. Punishment was assessed at eight years. One issue upon which this case is decided is the sufficiency of the evidence to sustain the conviction. I therefore set out the evidence presented at trial by the State in its summarized entirety.

The first witness was Mrs. Raymond Humphreys, the owner of a dry goods store in Amherst at which various types of clothing were sold. She testified that around 5:00 p. m. on the evening of May 7, 1975, three females entered and looked at clothing for about an hour. She identified one of the women as Gracie Wilson and another as appellant. At 6:00 p. m. Humphreys asked the women to leave because she was closing. The next morning, May 8, 1975, she discovered that a glass door at her store was broken .and approximately $3,000.00 worth of merchandise, mostly clothing, had been taken. Humphreys stated that she was “familiar” with her merchandise, but that there was no particular marking on each garment to identify it as having come from her store. She admitted that the clothes she sold were available through other retailers nationally. She stated, however, that it would be unlikely that anyone would possess clothing of all the types and brands that she sold.

After discovering the burglary, Hum-phreys called the sheriff who came that day to investigate. The sheriff left after a brief visit, but he returned later that day with several garments. Humphreys told him that she recognized only one of the items as the type sold at her store. About three months later, in August of 1975, Humphreys went to the Lubbock police station where she identified a group of clothing as having been taken in the burglary. She based her identification on knowledge of “the sizes, and colors and the kinds” of clothing sold at her place of business.

The second witness was Tressie Carpenter, who lived next door to the burglarized store. She heard a noise that attracted her attention around 5:30 a. m. on May 8, 1975. She saw a car driving down the alley by her house. She could not identify the passengers, nor could she say where the car had come from or where it went. Her testimony as to the observation of the car was as follows:

“Q: Can you describe that car for me?
A: Well, I didn’t pay much attention, but I got the impression that it was a light top convertible.
Q: What, if anything, was peculiar about it when you saw it?
A: Well, it had the turtle — the turtle wasn’t closed. It was going up and down.
Q: And could you see if there was anyone in the vehicle?
A: No, I couldn’t see that.”

The third witness was Earl Rankin, a detective with the Lubbock Police Department. In August of 1975 he received information that there were stolen clothes from a different burglary in Henderson, at an apartment rented by appellant in Lubbock. Rankin obtained a search warrant, and he went to appellant’s apartment with two other officers. They observed an unidentified man leaving the apartment wearing a coat that appeared to have come from the Henderson burglary. The officers approached the apartment and knocked on the door. When no one answered, they forced open the door. They found a woman downstairs named Deborah Davis. Gracie Wilson was in the upstairs north bedroom, and appellant was found in the upstairs south bedroom. The officers seized clothing found in the apartment and in a storage area on the apartment patio. That clothing was identified by Mrs. Humphreys as having been taken from her store.

The next witness was Jackie Peoples, a Texas Ranger stationed in Lubbock. He assisted the sheriff in investigating the burglary of the store owned by Mrs. Hum-phreys, and was present during the search of appellant’s apartment. He found some quilts, which were later identified by Mrs. Humphreys, in the north bedroom where Gracie Wilson was staying; but could not “specifically” remember any of the items being found in the south bedroom where appellant was arrested.

Peoples further testified that one of the items of clothing taken from the apartment had been worn by appellant in the “latter part” of May. Appellant had surrendered herself to the sheriff of Lubbock on a probation revocation warrant, and Peoples observed appellant wearing the garment. He did not take the clothing into custody at that time, however, and it was later found among the other clothes in the apartment.

The next witness was Doyle Nelson, a Lubbock City Policeman, who also participated in the search of appellant’s apartment. He testified that a green Oldsmobile convertible with a light colored top was found at the apartment. Nelson further stated that he had seen appellant riding as a passenger in the car on past occasions, but he had never seen her drive it.

The next witness was Charles Campbell. He worked as the executive manager for Jason Enterprises renting apartments .in Lubbock, Texas. He testified that appellant came to his office with Deborah Davis, and appellant signed an application to lease an apartment. The apartment was then leased to appellant and Davis jointly.

The final State witness was E. D. McNeese, sheriff of Lamb County. He verified that he investigated the burglary that occurred at the Amherst clothing store. He observed outside some footprints which he determined were “made by a female.” He made that determination based on the size of the feet and type of soles on the shoes. He discussed the visit to appellant around May 20, 1975, with Ranger Peoples. McNeese verified that appellant was wearing clothing items identified as having been taken in the burglary.

The general rule is that in reviewing the sufficiency of the evidence on appeal, it will be viewed in the light most favorable to the jury verdict. Bowers v. State, 570 S.W.2d 929 (Tex.Cr.App.1978). When the conviction is based on circumstantial evidence, as in appellant’s case, the evidence is insufficient if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused. Stogsdill v. State, 552 S.W.2d 481 (Tex.Cr.App.1977). As we stated recently in Sewell v. State, 578 S.W.2d 131, 135 (Tex.Cr.App.1979):

“In ascertaining whether the guilt of the accused has been established to a moral certainty, the appellate court will review evidence in light of the presumption that the accused is innocent. The court will not presume any acts against the accused that are not shown to have been committed by him. Furthermore, a conviction will not be sustained on appeal if the evidence does not sufficiently establish all material elements of the offense charged.” [Quoting from Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969).]

A careful review of the State’s evidence outlined above convinces me that it is insufficient to sustain appellant’s conviction. Appellant was not identified by anyone as having been present at the burglary. The neighbor, Tressie Carpenter, did not see the burglary or anyone who was riding in the automobile she observed. Carpenter could only very cautiously say that the car was a convertible, and the evidence showed only a tenuous connection between appellant and an Oldsmobile convertible. The footprints found at the store were characterized as being “female” in origin. Even if this suspect hypothesis is accepted, the footprint was not matched to appellant, and numerous females could have made the print.

The only other link of appellant to the store is that she visited it the evening before. Presence at the scene of a burglary has some probative value, but the limitation on the degree of its probativeness is demonstrated by the rule that presence alone will not sustain a conviction. Robinson v. State, 570 S.W.2d 906 (Tex.Cr.App.1978); Vela v. State, 491 S.W.2d 435 (Tex.Cr.App.1973). The further the time from the commission of the offense, the less probative value presence at the scene will have. In this instance, being at the store the evening before is of slight probative value.

Although there was no State’s brief filed in this case, the majority relies on the theory of an inference of guilt arising from possession of recently stolen goods. For that exception to apply, the possession must be: (1) personal; (2) recent; (3) unexplained; and (4) a distinct and conscious assertion of property by the defendant. McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966). The clothes found in the apartment jointly leased by appellant fail on at least two of the above grounds. First, the clothes were not found until more than three months after the burglary. Second, the apartment was not under appellant’s exclusive and personal control, and the evidence failed to show that any clothes were found in the room occupied by appellant. Such evidence is insufficient to raise the inference of guilt. McKnight v. State, supra, at 555.

Finally, the fact that Ranger Peoples and Sheriff McNeese observed appellant wearing merchandise identified as taken in the burglary is not enough to salvage the State’s case. The viewing occurred around two weeks after the burglary. The facts are very similar to the case of Beathard v. State, 126 Tex.Cr.R. 2, 70 S.W.2d 151 (1934), in which the defendant was accused of burglary of a home in which clothes were taken. A witness testified that the defendant and his brother brought some of the stolen goods to that witness’ house the same month that the burglary occurred. This Court concluded that the possession at that time did not exclude the reasonable hypothesis that others may have committed the offense, and that the defendant may have gained possession in some other manner. In Beathard, as in this case, there was evidence that raised other reasonable hypotheses as to how the burglary may have been committed. In this case, any of the other persons at the apartment could have committed the offense without any involvement by appellant.

For these reasons the judgment must be reversed and the cause ordered dismissed. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Because it is not, I dissent.

      . The majority of this merchandise consisted of men’s and women’s clothing. Some bed linens were also taken.

      . The witness provided no explanation of what a “turtle” is, but presumably she was referring to the trunk lid of the car.

      . Citing only a decision by the Fifth Circuit the majority also errs in finding that an election by an accused that the jury assess punishment “at the time he enters his plea in open court” means when he responds to a reading of the indictment in presence of a jury that has already been selected and impanelled. Since at arraignment an accused personally “enters his plea in open court” the statute should be read to refer to that occasion to effect judicial economy and to obtain jurors whose views on punishment are immaterial to their task.


author: DALLY, Judge.

text:
    Dionicio A. CRUZ, Appellant, v. The STATE of Texas, Appellee.
    No. 56349.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 10, 1979.

      Gerald H. Goldstein, San Antonio, for appellant.
    Bill M. White, Dist. Atty., Federico (Fred) G. Rodriguez, Charles T. Conaway and Bennie F. Steinhauser, Jr., Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   DALLY, Judge.

OPINION

This is an appeal from a conviction for murder. Punishment is imprisonment for thirty-five years.

Appellant contends that the trial court erred because it erroneously admitted into evidence an inculpatory statement prepared by appellant and his attorney. We agree and reverse the judgment.

The facts and circumstances are unique; we trust such facts and circumstances will never again be presented. Appellant contacted his attorney Mr. Earl Hill by telephone on January 23, 1973, regarding an incident in which appellant shot and killed Vicki Earline Son. Hill drove to where appellant was located, talked to appellant, and then went with appellant to view the body and the apartment where the shooting took place. They then returned to Hill’s office where Hill questioned appellant and wrote out a statement regarding the events which culminated in Son’s death. As the statement was being typed by Hill’s secretary, Hill called the San Antonio police and told them of Son’s death. Hill had appellant sign the statement without allowing appellant to read it, and without reading to appellant the Miranda warnings which Hill had instructed his secretary to type at the top of the statement.

Hill and appellant then went to the police station. They met Detective Frank Castel-leon, who asked if he could take a statement from appellant. Hill replied that that would not be necessary because he had already taken a statement, and he gave Cas-telleon the statement in question. Castel-leon looked over the statement and then began to read appellant his Miranda rights from the top of the statement, prior to having appellant read and sign the statement. Hill interrupted Castelleon and told him that the reading of appellant’s rights was not necessary because appellant already knew his rights. Appellant then signed the statement without reading it and was immediately arrested.

On September 19,1973, a Jackson v. Den-no hearing was held on appellant’s motion to suppress the statement. The trial judge tentatively ruled the statement inadmissible, but allowed both parties to present briefs on the issue. In a second hearing before another judge, which was held immediately prior to trial on May 21, 1975, the trial judge held the statement to be admissible.

Hill testified at the hearings that it was his “three-fold purpose” to render the statement inadmissible by having appellant sign the statement without reading it, by deliberately failing to read appellant his Miranda rights, and by making the statement “his own version” of what appellant told him and what he saw at the scene of the crime, rather than simply recording what appellant told him. Hill testified as follows:

“Q. Did you ever let him read the statement?
“A. No. I did not.
“Q. Are the facts contained in that statement the facts that you put in the statement as a result of what you thought occurred or as what Mr. Cruz told you?
“A. Both. As a result of him describing some details to me and me asking questions and paraphrasing it.
“Q. Did you write the statement in longhand?
“A. Yes.
“Q. And you did not let him read the statement?
“A. No.
“Q. Then did you give the statement to the secretary?
“A. Yes.
“Q. And she typed it?
“A. That’s correct.
“Q. Was the statement brought back to you?
“A. Yes, sir.
“Q. Did Mr. Cruz sign it?
“A. Yes, sir.
“Q. Did you tell him to sign it?
“A. Yes, sir.
“Q. At that time, while he was doing this, he felt that that statement was going to remain in your files; is that correct?
“A. Well, I don’t know if he felt that or not.
“Q. Well, let me rephrase it. He was doing everything that you told him to do, as a attorney-client relationship?
“A. That’s correct.
“Q. But you did not give him any warning—
“A. No, sir.
“Q. —that he did not have to make a statement?
“A. No.
“Q. And any statements he gave could be used against him?
“A. That’s correct.
“Q. And you deliberately did not let him read that statement for a certain purpose?
“A. Yes.”
******
“Q. And, that there was mistakes in that statement — if there were, Mr. Cruz was never given an opportunity to correct that statement?
“A. Correct.
“Q. And, if that statement is true and correct, Mr. Cruz doesn’t really know it?
“A. Correct.”
******
“Q. Mr. Hill, that statement that has been marked State’s Exhibit Number One is really your statement, and not the Defendant’s statement?
“A. Well, if you put it in those terms, yes.”

Appellant testified that he never read the statement or knew its contents, and that he signed the statement solely on the advice of Hill. The statement, along with proof of the corpus delicti, provided the primary evidence of appellant’s guilt.

At trial, appellant’s counsel questioned Detective Castelleon regarding the statement as follows:

“BY MR. GONZALES:
“Q. But, it still remains, Mr. Castelleon, that State’s Exhibit Number Forty, and the contents therein, you have no knowledge who made the statement or prepared that information that is contained therein; is that correct?
“A. That’s correct.
“Q. You cannot say that the contents of that statement reflected in State’s Exhibit Number Forty, or testimony or statements made by the Defendant, those are made by the Defendant, Tony Cruz? Yes or no?
“A. That’s correct.
“Q. It is correct, that you cannot say that?
“A. There is not any way that I can tell that he himself made this statement.
“Q. Okay.”
******
“Q. Are you testifying that what is involved in the contents of that statement, or the statement there are the statements made by the Defendant, Tony Cruz? Do you have any personal knowledge of that?
“A. No, sir.
“Q. That statement, State’s Exhibit Number Forty, was given to you by an individual by the name of Mr. Earl Hill; is that correct?
“A. Yes, sir.
“Q. And not by the Defendant, Tony Cruz; is that correct?
“A. That’s correct.
“Q. You do not have any knowledge — or you own personal knowledge, that that statement and what is written in that statement was made by Mr. Tony Cruz?
“A. No, sir.
“MR. GONZALES: We object, Your Honor, that this Exhibit has not been connected with the Defendant. This is a piece of paper. There is no connection whatsoever and it is hearsay, as far as we know, and another individual give it to him, and the proper predicate for introducing this statement has not been laid. We object to it.”

Counsel’s objection was well taken; the evidence adduced did not show that the statement was accurate or that the statement truthfully reflected what appellant told Hill. Art. 38.21, V.A.C.C.P., permits a statement of an accused to be used in evidence against him. This statute necessarily implies that the prosecution must lay the proper predicate and show that, in fact, the statement was indeed made by the accused. Cf. Pierson v. State, 145 Tex.Cr.R. 388, 168 S.W.2d 256 (1943). Hill testified that the statement was a joint creation and that it included facts related as true by appellant as well as facts hypothesized to be true by Hill, all written in Hill’s own words. Appellant apparently never read the statement and he signed it at the advice of Hill. Detective Castelleon did not question appellant regarding the accuracy of the statement, nor did he independently ascertain its authenticity. Hill’s purpose and actions in taking the statement also give cause for suspecting its reliability. Under these circumstances, no proper predicate was laid for the admission of appellant’s statement.

Additionally, the statement was inadmissible because it was obtained in violation of Art. 38.10, V.A.C.C.P., which protects the attorney-client privilege. Art. 38.-23, V.A.C.C.P. Article 38.10 provides, in pertinent part, that: “. . .an attorney at law shall not disclose a communication made to him by his client during the existence of that relationship, nor disclose any other fact which came to the knowledge of such attorney by reason of such relationship .” By giving the statement to the police, attorney Hill disclosed the contents of communications confidentially made to him by appellant during the existence of their attorney-client relationship. These communications did not relate to the commission of future crimes and the client did not knowingly consent to disclosure; the attorney was not excused from his duty to preserve the confidences of his client. See State Bar of Texas, Rules and Code of Professional Responsibility, DR 4r-101(B), EC 4-1, EC 4-5 (1971).

It is clear from the language of Article 38.10 that the privilege protected is personal to the client and cannot be waived solely by the attorney. The application of that view to this case is consistent with the chief purpose of the privilege, which is the promotion of communication between attorney and client unrestrained by fear that these confidences may later be revealed. See West v. Solito, 563 S.W.2d 240, 245 (Tex.1978). Nor can it be said that appellant, by signing the statement after it was given to the police, had waived a privilege so vitally important to him in this case. Waiver will not be “lightly inferred” and this act alone, done by appellant at the behest of attorney Hill, fails to show either an intention by appellant to waive his rights or a sufficient awareness of the nature and significance of his conduct. Parker v. State, 545 S.W.2d 151 (Tex.Cr.App.1977); see Dix, Waiver in Criminal Procedure: A Brief for More Careful Analysis, 55 Tex.L.Rev. 193, 219-36 (1977). The record further indicates that appellant’s actions were unacceptably influenced by the role Hill played in the totality of the circumstances. See Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.1972); see also Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954).

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

      . The State suggests in its brief that appellant also knowingly consented to Hill’s delivery of the statement to the police. The record does not support this assertion. At the initial 1974 hearing on the motion to suppress, Judge Archie Brown questioned Hill on this issue:
      “THE COURT: And he was talking to you in the relationship of attorney and client, was he not?
      “A. Absolutely.
      “THE COURT: And you didn’t ask him— you didn’t tell him in advance that you were going to disclose this to anyone?
      “A. He knew, when we left, that I was going to give a copy of the statement to Homicide.
      “THE COURT: That was after the statement was taken?
      “A. Right.”
      ******
      “THE COURT: At the time he signed it and swore to it, you had not told him it was going to do anything but stay in your file?
      “A. That is correct.”
      Hill’s other testimony at this hearing was consistent with this colloquy, justifying Judge Brown’s conclusion that: “[tjhere is not one iota of proof as to any waiver of the attorney-client relationship.” Moreover, Hill’s testimony in the second, decisive, hearing on the motion to suppress remained totally consistent with this account. In overruling the motion to suppress, Judge Garcia made a factual finding that appellant knew Hill intended to give the statement to the police. This finding was correct; but this knowledge was gained after the statement had already been prepared, and appellant’s silent, unavoidable acquiescence to Hill’s decision will not support a legal conclusion that this conduct was a knowing consent to waiver. See, e. g., Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Baker v. State, 519 S.W.2d 648 (Tex.Cr.App.1975).


author: TOM G. DAVIS, Judge.

text:
    Andrew ROACH, Appellant, v. The STATE of Texas, Appellee.
    No. 58094.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 10, 1979.

      Robert R. Farmer, Freeport, for appellant.
    Ogden L. Bass, Jr., Dist. Atty. and Doyle W. Neighbours, Asst. Dist. Atty., Angleton, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for forgery by passing. V.T.C.A. Penal Code, Sec. 32.21(a)(1)(B). Punishment, enhanced by two prior felony convictions, was assessed at life. V.T.C.A. Penal Code, See. 12.42(d).

Cotton Nixon testified that he was the pharmacist at the Willenberg Pharmacy in Freeport at the time of the offense. Appellant entered the pharmacy on May 17, 1976, and purchased a bottle of cologne. Appellant paid for the cologne with an American Express money order in the amount of $71.23. Nixon gave appellant approximately $60.00 in change after cashing the money order and deducting the price of the cologne. Nixon later learned that the money order had originally been issued in the amount of $1.23, but had been altered to reflect a face value of $71.23. Appellant did not testify or present any witnesses.

In his first ground of error, appellant contends that there is a fatal variance between the indictment and proof at trial with regard to the complainant’s name. The indictment alleges that appellant passed the money order to “Cotton Nixon.” At trial, the complainant testified that his name was “Clarence Edward Nixon, Jr., Cotton.” The court’s charge used the name “Cotton Nixon.”

When a person is generally known by one name, or is known by that name as well as another, either name may be used in an indictment. Dears v. State, Tex.Cr.App., 465 S.W.2d 376, and Hammond v. State, Tex.Cr., 465 S.W.2d 748. It appears as though “Cotton” was Nixon’s nickname. His testimony at trial indicates that he was known as “Cotton.” We conclude that there was sufficient proof for the jury to find that the complainant was known as Cotton Nixon. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that there is a fatal variance between the allegations of the indictment and the proof at trial. The indictment alleges that appellant passed the money order to Cotton Nixon. Appellant maintains that the proof at trial revealed that the money order was passed to a salesgirl rather than Nixon.

The record does not support appellant’s contention. Nixon testified that appellant initially presented the money order to a salesgirl who informed appellant that Nixon would have to authorize cashing the money order. After identifying the money order presented by appellant, Nixon testified:

“Q. Is that the money order that you cashed for him on the 17th day of May, 1976?
“A. Yes.
“Q. In what amount did that money order appear to be at the time you cashed it?
“A. $71.23.
“Q. $71.23?
“A. Right.
“Q. And did you in fact give him cash money in return for that?
“A. Yes, the difference between the merchandise and that.”

Appellant’s reliance on Vestal v. State, 162 Tex.Cr.R. 223, 283 S.W.2d 955, is misplaced. In Vestal, the defendant had a check “okayed” by an assistant manager of a grocery store. The defendant then presented the check to a cashier who cashed it. The indictment alleged that the defendant passed the check to the assistant manager. We held that the proof was at variance with the allegation in the indictment. In the instant case, although appellant initially presented the money order to a salesgirl, Nixon both authorized payment and gave appellant cash in return for the money order. There being no variance, the ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in allowing the State to introduce evidence of seven alleged extraneous offenses. State’s Exhibit No. 2 is a sales slip for American Express money orders reflecting the sale of twenty money orders by serial number and dollar amount. The sales slip reflects that the money order (No. 25 — 457-697-668) passed by appellant to Nixon was originally issued in the amount of $1.23. The slip further reflects that the preceding seven money orders had also been issued in the amount of $1.23. Appellant maintains that it was error for the trial court to allow the entire sales slip into evidence reflecting that eight money orders had been purchased in the amount of $1.23 when appellant was shown to have passed only one of the eight money orders.

An accused may not be tried for some collateral crime or for being a criminal generally. Jones v. State, Tex.Cr.App., 568 S.W.2d 847. However, there must be some type of inadmissible evidence presented of the accused’s prior criminal conduct for error to be present. See, Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97.

The sales slip admitted into evidence in no way proved an extraneous offense. It was not shown that any of the seven $1.23 money orders were altered, appellant was not shown to have passed any of the other money orders, nor was appellant shown to have purchased the money orders. No error is shown.

In his pro se brief, appellant contends that the indictment is fundamentally defective. No motion to quash was filed in the trial court. The indictment alleges in pertinent part:

“. . . did then and there with intent to defraud and harm another pass as true to Cotton Nixon a false and forged instrument in writing, which had theretofore been made without lawful authority, and with intent to defraud, and was then of the tenor following: (at this point, the indictment set out in its entirety an American Express money order in the amount of $71.23 with appellant named as payee and John Young named as maker) And which said instrument in writing the same Defendant then and there well knowing to be false and forged, he the said Defendant did pass the same as true with intent to defraud and harm.”

Appellant maintains that the indictment is fundamentally defective for failing to allege that the writing passed “purported to be the act of another who did not authorize that act.” See, V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i).

The element of forgery under Art. 979, V.A.P.C. (1925) of “without lawful authority” has been brought forward in Y.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i), which requires that the purported maker “did not authorize that act” of making the writing. Minix v. State, Tex.Cr.App., 579 S.W.2d 466 (Opinion on State’s Motion for Rehearing) and Landry v. State, Tex.Cr.App., 583 S.W.2d 620 (1979, Opinion on Appellant’s Motion for Rehearing).

Article 21.17, V.A.C.C.P. provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

Thus, the exact words of the statute need not be alleged when there is no material difference between the words of the statute and the allegations of the indictment. Church v. State, Tex.Cr.App., 552 S.W.2d 138, and Nixon v. State, Tex.Cr.App., 572 S.W.2d 699. We conclude that there is no material difference between the phrases “without lawful authority” and “did not authorize that act.”

Having found that the “unauthorized act” element of appellant’s indictment was satisfied, we must still address the “purport” element. When a forgery indictment fails to allege that the writing “purported to be the act of another,” the purport element may nevertheless be supplied by relying on the “purport rule” that rests on setting out the forged instrument in the indictment in haec verba. Minix v. State, supra. Thus, when an indictment alleges the attempt to pass a forged instrument and sets out the forged instrument by its tenor showing the maker’s name to be different from that of the payee, it is not necessary to allege that the act purported to be the act of another. Wisdom v. State, 122 Tex.Cr.R. 271, 54 S.W.2d 533, and Biering v. State, 159 Tex.Cr.R. 331, 263 S.W.2d 558. We conclude that the purport element was supplied in appellant’s indictment by setting out the forged money order allegedly made by John Young and payable to appellant.

Although appellant’s indictment is not a model pleading, it is not fundamentally defective.

The judgment is affirmed.


author: ODOM, Judge.

text:
    Larry Dean TURNER, Appellant, v. The STATE of Texas, Appellee.
    No. 61619.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 26, 1979.
    David H. Brown, Sherman, for appellant.
    Patrick C. Batchelor, Dist. Atty. and John H. Jackson, Asst. Dist. Atty., Corsicana, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for theft over $200. After conviction by a jury, punishment was assessed by the court at six years.

This appeal was previously abated because the record had been forwarded to this Court before the time allowed for filing briefs had expired. Briefs have now been filed and the appeal is before us for disposition on the merits.

In his third ground of error appellant urges reversible error was committed when evidence of extraneous offenses was improperly admitted over his objection that the evidence was hearsay. The record shows that a 300 John Deere tractor with a front end loader was stolen from a field in Navarro County and that appellant was arrested in possession of the stolen tractor the next day in Grayson County. At that time appellant was driving a pickup truck and pulling the John Deere tractor and an Allis-Chalmers tractor on a trailer.

A peace officer who went to the scene and assisted in the investigation was permitted to testify over appellant’s hearsay objection that his investigation revealed the truck appellant was driving at the time of his arrest and the Allis-Chalmers tractor were also stolen property. Appellant's objection at trial and ground of error on appeal do not challenge the State being allowed to prove his possession of this other stolen property at the time of his arrest, if the State can present competent evidence of the fact. The position urged by appellant at trial and on appeal is that the State may not prove such facts by hearsay evidence.

The objection should have been sustained. There was no other evidence of these facts presented at trial other than the investigating officer’s testimony about what he had learned in the course of his investigation, so we cannot say the improper admission of this evidence was rendered harmless by proper proof of the same facts. Likewise, the State’s case was circumstantial, and we are unable to say that the error is made harmless by overwhelming evidence of appellant’s guilt.

The cases relied on by the State support the admission of proper evidence of the extraneous offenses shown in this case by the hearsay testimony of the officer, but they do not address the hearsay issue raised in this case, much less hold such evidence is competent proof of the fact. Appellant’s ground of error is sustained.

The judgment is reversed and the cause remanded.


author: PHILLIPS, Judge.

text:
    Cathleen I. REED, Appellant, v. The STATE of Texas, Appellee.
    No. 61763.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 26, 1979.

      Michael E. Barrow, Houston (Court-appointed), for appellant.
    Robert Huttash, State’s Atty., and Alfred Walker, Asst. State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation. Appellant was originally convicted of forgery by passing, an offense under V.T.C.A. Penal Code, Section 32.-21(a)(1)(B) and (b). Appellant’s punishment was assessed at imprisonment for five years, probated. Probation was revoked, and appellant was sentenced to imprisonment for two to five years.

In her second supplemental brief appellant contends that the forgery indictment in this case is fundamentally defective for failure to allege that the writing she passed purported to be the act of another “who did not authorize that act.” See Section 32.-21(a)(l)(A)(i) of the Penal Code.

The indictment alleges in pertinent part that appellant “did then and there unlawfully and with intent to defraud and harm, forge the writing duplicated below by passing it (knowing it was forged) to Charles Kirkland.” A photocopy of the forged writing (a check) is attached to the indictment. The name of the maker on the check is different from that of the appellant, and the check is made out to appellant. On its face the check purports to be the act of another.

This Court has recently held that where the forged writing purports to be the act of another, the State must further allege in the indictment that it was the act of another “who did not authorize that act.” Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979, Opinion on Appellant’s Motion for Rehearing); Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979). The quoted statutory language constitutes an essential element of the offense and the failure to allege that language renders the indictment fundamentally defective. The indictment in this case is void under the authority of those decisions.

A fundamentally defective indictment may be collaterally attacked in an appeal from a revocation of probation. Rejcek v. State, 545 S.W.2d 164 (Tex.Cr.App.1977); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976). Appellant’s conviction, being based on a void indictment, cannot stand.

The judgment is reversed and the prosecution under the present indictment is ordered dismissed.

DOUGLAS, J., dissents.


author: CLAYTON, Justice. KEITH, Justice,

text:
    RYAN MORTGAGE INVESTORS et al., Appellants, v. BERTON LAND DEVELOPMENT CORPORATION et al., Appellees.
    No. 7962.
    Court of Civil Appeals of Texas, Beaumont.
    Aug. 15, 1978.
    Stan Harrell, Fort Worth, for appellants.
    Benton Musslewhite, Houston, for appel-lees.
   CLAYTON, Justice.

This case has been reversed and remanded by our Supreme Court for a determination by this court of whether the action of the trial court in overruling defendant Ryan’s plea of privilege may be affirmed under any of the pleaded venue exceptions.

Appellees, plaintiffs below, instituted this action seeking damages based upon misrepresentations made by agents of appellants and also seeking a temporary injunction to prevent foreclosing a deed of trust covering certain lands situated in Montgomery County. Appellant Ryan filed its plea of privilege to be sued in Tarrant County. The trial court overruled the plea of privilege and granted the temporary injunction from which orders appellant has perfected its appeal.

The trial court filed extensive findings of fact and conclusions of law and held that venue was maintainable in Montgomery County under Tex.Rev.Civ.Stat.Ann. art. 1995, §§ 7, 14, and 23 (1964).

Appellees, Berton Land Development Corporation (Berton), a Texas corporation, three guarantors on the promissory note, and an unsecured creditor of Berton, were in a group planning to create a recreational community on 1,476 acres on Lake Conroe in Montgomery County. On December 1, 1972, Associated Mortgage Investors (AMI) issued its commitment letter to Lake Con-roe Equities, Inc., a predecessor in title to Berton, whereby AMI committed itself to make a land acquisition loan in the amount of $7,300,000. On December 28, 1972, Ber-ton executed a promissory note in such amount. Also, on that date, the individual plaintiffs along with five other individuals, executed a guarantee agreement in which they guaranteed payment of the loan. On January 5, 1973, Berton executed a deed of trust upon the land to secure the payment of the note. Although AMI was named as payee of the note, it was actually a joint participation of three real estate investment trusts with the appellant Ryan acting as the “lead” lender. Subsequently, the indebtedness was assigned to Ryan. Appel-lees contend that Ryan’s agents made false representations that a development loan would be made to Berton. Efforts to secure the development loan were unsuccessful; and, when the land acquisition note became due one year from the date of its making, it was not paid by Berton, and the note remains unpaid and in default.

According to the evidence presented to the trial court, it is undisputed that, from the beginning of the negotiations of all parties, the goal of the lenders and the owners was to secure a land acquisition and development loan, and that the only way the acquisition and development loans could be paid would have been through development of the property as a lake resort community. At the insistence of Mr. Thorne, who was the Executive Vice-President of Ryan, the acquisition loan was made and AMI was given the written option “to make the contemplated development and construction loans for future site improvements at the following rates and terms: [followed by a proposed interest rate for a term of three years].”

There is testimony in the record that the land acquisition loan proposed by Thorne, which was a one year loan, with an approximate six months interest reserve, with no partial release clause, with no immediate availability of development funds, was considered by appellees to be a bad and a dangerous loan. Appellees expressed their concern about this “danger,” and their testimony is to the effect that appellees would not have closed or consummated the original land loan had it not been for the representations of Thorne that a development loan would be made and funded within 120 days; or, as one of the principals of Berton testified, that Thorne stated and represented that if the principals of Berton and the landowners would close the land loan the' development loan would be funded “automatically,” and it was in reliance upon these representations that appellees agreed to close out the original land loan.

The record is replete with statements that Berton and other appellees would not have closed out the land acquisition loan had it not been for the representations of Thorne that the development loan was automatic and would be forthcoming. In the words of the President of Berton, referring to the land acquisition loan, “No — I would not have recommended it; it’s suicide.” It is also shown by the evidence that Thorne, prior to the closing of the loan, represented that the trusts involved herein, particularly AMI, had the capability of making the development loan and that AMI and Larwin were large trusts fully capable of making the development loan but that AMI, as lead lender, would be the one that would probably fund the development loan; at no time did Thorne mention any financial problems in AMI or that AMI had a loan limit which would preclude the making of the development loan. Thorne admitted that he knew that AMI had a loan limit prior to closing the loan and admitted that “I don’t believe that I discussed this loan limit with them particularly; I had no reason to.”

The only thing that had to be done in order to secure funding of the development funds, once the land loan was closed, was the completion of what was called the “development package.” Thorne approved the credit of the principals insofar as both the land and development loan was concerned, the viability of the project, the general design of the project, and all that was left to do was to “assemble the development package.” Testimony shows that such a development package was completed and that it was totally satisfactory.

In less than two months from closing the loan, AMI refused to fund the development loan because “the present balance is the maximum that AMI can fund on one specific loan and that they did not agree with the development concept contained in the ‘package.’ ” is noted that the record reflects that Thorne represented AMI in this transaction and that the “package” had been prepared with his help and cooperation and had been accepted by him. AMI had gone into bankruptcy within six months after the loan closing.

There is further testimony that Thorne admitted to the witness Tweedy, that “he [Thorne] let on to me like he never thought the thing would run with the principals involved. ... He let on like the players never could fund the loan and it was known from the start.” To the question “did he [Thorne] ever say anything about whether he thought he was going to have to foreclose on the property from the start,” the witness answered, “Yes,” and that “he [Thorne] thought they ought to make a profit” (on the foreclosure). Tweedy, with reference to obtaining a buyer for the land, testified that “He [Thorne] said if I found a buyer ... to keep them under wrap until, you know this foreclosure thing is done and because they are behind on interest and all of that it looks like we’re going to foreclose. But keep it under wraps now and I can’t talk about it right now. But any time you want to call me collect is find [sic]. Let me know what’s going on.”

Based upon the evidence, the trial court found that defendants committed fraud through the representations of Thorne and found that not only did they make false representations that they would provide a development loan and had the capability of providing a development loan but also that at the time they made such representations “the defendants had no intent to fulfill the representations and furnish the development loan.” The trial court further found “that the representations were relied upon by the plaintiffs, and, but for such representations, the plaintiffs would not have concluded the land loan; that the “representations that the defendants had the means and capability to furnish the development funds were false representations,” which were relied upon by the appellees; and that appellees sustained damages as a result of all of such misrepresentations. Based upon these findings, the trial court concluded that venue was maintainable in Montgomery County under Tex.Rev.Civ. Stat.Ann. art. 1995, § 7 (1964).

Fraud is determined from the “words or other conduct manifesting to another the existence of a fact, including a state of mind.” Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138, 142 (Tex.1974). All the facts and circumstances leading up to and connected with the transaction are, ordinarily, admissible and may be considered. Isenhower v. Bell, 365 S.W.2d 354 (Tex.1963). If a representation is one to do a future act, the intention not to perform that act may be proven by circumstances. Blanton v. Sherman Compress Company, 256 S.W.2d 884 (Tex.Civ.App.—Dallas 1953, no writ). Intent is to be determined from a consideration “of all the acts and declarations of the company’s representatives . . . coupled with its subsequent conduct in reference to carrying out or refusing to carry out the verbal agreement.” Tatum v. Orange and N. W. Railway Company, 245 S.W. 231, 232 (Tex.Com.App.1922, opinion adopted).

The evidence is factually sufficient to support the findings of the trial court as to actionable fraud occurring in Montgomery County, and its conclusion that venue is maintainable in Montgomery County under the provisions of Tex.Rev.Civ.Stat.Ann. art. 1995, § 7 (1964), is correct, and the trial court properly overruled appellants’ plea of privilege.

No error being shown, the judgment of the trial court is affirmed.

AFFIRMED.

KEITH, Justice,

concurring.

In remanding the cause to this court, the Supreme Court directed that we determine “whether the action of the trial court in overruling Ryan’s Plea of Privilege may be affirmed under any of the pleaded exceptions to exclusive venue.” 563 S.W.2d 811, 812 (Tex.1978). The mandate of our Supreme Court has now been complied with, and I do not dissent nor do I disagree with the holding.

Nothing said by the Supreme Court or by this court in today’s opinion detracts from the viability of the doctrine of res judicata as discussed in our prior opinion, 556 S.W.2d 361, 363 (1977). The facts supporting such plea are of record, and it must now be heard in Montgomery County — not Tarrant County. That, I submit, is the effect of today’s holding.

       In our former opinion, 556 S.W.2d 361 (1977), the temporary injunction granted by the trial court was dissolved. The Supreme Court, in reversing this judgment, made no mention of the dissolution of such temporary injunction but reversed the judgment solely upon the question of venue and remanded the cause “for determination of whether the action of the trial court in overruling Ryan’s Plea of Privilege may be affirmed under any of the pleaded exceptions to exclusive venue.” For this reason we do not consider the matter of the temporary injunction now being before this court.