text:
    Robert THOMAS a/k/a Curtis Glen Thomas, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57146-57148.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 20, 1978.
    Bonnie J. Fitch, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Edward A. Dodd, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

These appeals were previously abated for proper briefing on appeal. New briefs have been filed and the cases are reinstated.

Cause No. 57146 is an appeal from an order revoking probation after conviction for burglary of a vehicle; punishment is three years. The other two eases are appeals from convictions for theft in which punishment was assessed at five years in each case.

In the theft cases counsel has filed a brief concluding that the appeals are frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1976). See Gainous v. State, Tex.Cr.App., 436 S.W.2d 137; Jackson v. State, Tex.Cr. App., 485 S.W.2d 553; Currie v. State, Tex.Cr.App., 516 S.W.2d 684. A copy of the brief has been delivered to appellant and he has been advised of his opportunity to examine the record and file a pro se brief. No pro se brief has been filed.

We have reviewed the record and counsel’s brief and agree that the appeals in the theft cases are wholly frivolous and without merit. Further, we find nothing in the record that might arguably support the appeal.

In the revocation of probation case appellant raises one ground of error. He contends the record reflects that in his original conviction counsel was appointed less than ten days before trial and that the record contains no waiver of the ten days allowed for appointed counsel to prepare under Article 26.04(b), V.A.C.C.P.

No appeal was taken from the original conviction, and presentation of the issue in this proceeding constitutes a collateral attack. Although some grounds for collateral attack against the original conviction may be raised in the appeal from a revocation of probation, see, e. g. Ramirez v. State, Tex. Cr.App., 486 S.W.2d 373, this is not true of all such attacks. Although the issue raised here will be considered as unassigned error on direct appeal from the conviction, Henson v. State, Tex.Cr.App., 530 S.W.2d 584, it may not be raised by collateral attack against a prior conviction used for enhancement of punishment absent a showing of harm or that a request for additional time was made. Clemons v. State, Tex.Cr.App., 501 S.W.2d 92. The record here does not show, nor does appellant contend, that in the original conviction he was harmed by the lack of ten days to prepare, or that a request for additional time was made.

We hold the record does not show the facts necessary to support a collateral attack on the ground urged. The ground of error is overruled.

The judgments are affirmed.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Donald MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.
    No. 57246.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      James A. Burroughs, Austin, for appellant.
    Ronald D. Earle, Dist. Atty., and Charles E. Hardy, Asst. Dist. Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

Appellant was convicted by a jury of aggravated assault. He elected to have the court assess his punishment. The court found the paragraphs in the indictment charging appellant with having been previously convicted of two felony offenses to be true and, in accordance with V.T.C.A, Penal Code,. § 12.42(d), assessed punishment at life.

We shall first consider appellant’s contention that the court erred in imposing a life sentence because the federal offense alleged in the second count of the indictment is insufficient to sustain an enhanced mandatory sentence under Texas law. The federal conviction alleged in the enhancement portion of the indictment was for making a false and fictitious written statement to a licensed dealer in firearms, in connection with the acquisition of a firearm.

It has long been the rule that a prior federal conviction used for enhancement of punishment, although clearly a felony under federal law, must also be an offense which is denounced by the laws of Texas as a felony. Ex parte Smith, 548 S.W.2d 410 (Tex.Cr.App.1977); Ex parte Scafe, 334 S.W.2d 170 (Tex.Cr.App.1960); Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117 (1958); Clark v. State, 154 Tex. Cr.R. 581, 230 S.W.2d 234 (1950). Therefore, we must look to the conduct which formed the basis of appellant’s federal conviction to see if like conduct would constitute a felony offense denounced by the laws of Texas.

The State concedes that there is no specific offense set out in the firearms portion of the Texas Penal Code to prohibit such conduct, but argues that a prosecution for such conduct could be had under V.T.C.A., Penal Code, § 37.10, Tampering with Governmental Record, which provides, inter alia, that a person commits an offense if he “knowingly makes a false entry in . a governmental record.” The State contends that licensed firearms dealers are required by federal law to keep records of all sales of firearms and that therefore if appellant made a false statement on the required record of the firearms dealer in an attempt to defraud the dealer into selling him a firearm under the false statement, then he would be guilty of a violation of § 37.10, supra.

However, that argument breaks down if taken to its logical conclusion. A “governmental record” is defined in § 37.01, supra, as “anything required by law to be kept by others for information of government.” The definition of “government,” as set forth in V.T.C.A., Penal Code, § 1.07(a)(15), does not include the federal government, but only the state, counties, municipalities, or political subdivisions of the state.

It is thus apparent that appellant could not have been successfully prosecuted in the courts of this state under § 37.10, supra, for making a false entry in a federal governmental record required to be kept by federal law.

We find that appellant’s conduct in making a false and fictitious statement to a licensed firearms dealer is not denounced by the laws of this state as a felony and that therefore the prior federal conviction was erroneously used by the court to enhance appellant’s punishment.

The other points raised in the brief by appellant’s appellate counsel and appellant’s pro se brief have been carefully considered and we find them to be without merit.

Appellant, with the consent of the State and the approval of the court, elected to have the court assess his punishment. The cause is therefore remanded for assessment of punishment by the court in accordance with the provisions of V.T.C.A., Penal Code, § 12.42(a).

      . V.T.C.A., Penal Code, § 12.42(d), provides:
      “If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

      . A violation of 18 U.S.C. 922(a)(6).


author: ROBERTS, Judge.

text:
    Bernard BATTLE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57806-57808.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.

      Tom A. Boardman, Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, C. Wayne Huff and Mike R. Gillett, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from orders of the court revoking appellant’s probation granted him in three prior felony convictions. On May 6, 1977, appellant, under separate indictments, entered pleas of guilty to the offenses of possession of marihuana over four ounces, burglary of a habitation and possession of methamphetamine. Punishment was assessed at ten years’ imprisonment for each offense, but the imposition of sentence was suspended and appellant was placed on probation for a period of ten years. On July 1, 1977, the State filed motions to revoke probation for all three convictions alleging that appellant had violated a condition of probation, namely, that he “commit no offense against the laws of this State or of any other state or of the United States.” After a hearing was held on July 15, 1977, the court entered orders revoking appellant’s probation and sentenced him in each case to ten years’ confinement in the Texas Department of Corrections, the sentences to run concurrently.

In his first contention, appellant urges that the evidence presented at the probation revocation hearing was insufficient to support a finding that he violated the condition as alleged. We agree and reverse the trial court’s orders revoking appellant’s probation.

When viewed in the light most favorablé to the court’s finding, the record reveals that on June 11, 1977, at approximately 1:00 a. m., Sandra Skelton, the complaining witness, and her friend, Rhonda Richmond, met appellant in a Dallas nightclub. The threesome sat at one table and after 30 minutes of conversation, the two women went to the ladies’ restroom; they were followed by appellant who also entered the restroom. No one objected to appellant’s presence.

Before entering the bathroom stall, Skel-ton entrusted her purse to Richmond, who set it on the sink while she assisted Skelton by holding the broken stall door closed. Several other women were also inside the restroom. During this period, appellant was standing near both the sink and the door. Skelton emerged from the stall within several minutes and discovered that her purse was missing. She then observed appellant leaving the restroom. Skelton pursued appellant to a spot immediately outside the nightclub where she accused him of the theft. Appellant steadfastly denied the accusation and in a final effort to convince Skelton of his innocence, he partially disrobed himself in front of her to prove that he was not concealing the purse. Skelton and Richmond both testified that neither of them actually saw appellant take the purse. They further testified that they never saw the purse in appellant's possession.

The State contends that appellant’s violation of the probation condition was proved by a preponderance of the evidence, and that the trial court was justified in revoking probation.

It is well settled that in a probation revocation hearing the trial court is the “sole trier of the facts, the credibility of the witnesses and the weight to be given to the testimony.” Grant v. State, 566 S.W.2d 954, 956 (Tex.Cr.App.1978); Ross v. State, 523 S.W.2d 402, 403 (Tex.Cr.App.1975). However, a trial judge is not accorded an absolute discretion in the decision to revoke. Scamardo v. State, 517 S.W.2d 293, 297 (Tex.Cr.App.1974). After considering all of the evidence, the court may, in its sound discretion, revoke probation if the State has proved every element of the offense by a preponderance of the evidence. Grant v. State, supra at 956.

In a hearing of this nature, the State satisfies its burden of proof when the greater weight of the credible evidence before the court creates a reasonable belief that a condition of probation has been violated as alleged. Scamardo v. State, supra at 298. When the State’s ease is supported by circumstantial evidence alone, the incriminating circumstances must be such as to exclude every reasonable hypothesis except the accused’s guilt. Stogsdill v. State, 552 S.W.2d 481, 486 (Tex.Cr.App.1977). An order of revocation based on only a likelihood or strong suspicion of guilt constitutes an abuse of discretion.

In the instant case, there is no direct evidence supporting the State’s allegations in its motions to revoke probation. The chief incriminating circumstance relied upon by the State is appellant’s presence in the restroom near Skelton’s purse shortly before it was discovered missing. Mere presence at the scene of the crime is not sufficient alone to show guilt. Moore v. State, 532 S.W.2d 333, 337 (Tex.Cr.App.1976).

We conclude that under the present circumstances the State’s evidence created only a surmise or a suspicion that appellant had violated the condition of probation as alleged and that reasonable minds could arrive at conclusions other than appellant’s guilt. Appellant’s first ground of error is sustained, thus it is unnecessary for us to consider his remaining ground of error.

The judgments are reversed and the causes remanded.


author: DALLY, Judge.

text:
    Ex parte Jessie Russell SMITH.
    No. 58179.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is a post-conviction application for writ of habeas corpus brought under Art. 11.07, Y.A.C.C.P. Petitioner seeks relief from his conviction following a plea of guilty to the offense of aggravated rape.

Appellant contends that the indictment is fatally defective for failure to include a necessary element of the offense. He also contends that since the complaining witness was his daughter his prosecution should have been governed by the incest statute.

Petitioner pled guilty to the first count of a three-count indictment. This count reads, in pertinent part:

“Jesse Russell Smith did then and there unlawfully engage in sexual intercourse with R_S_, a female then and there under the age of 17 years and then and there under the age of 14 years and not then and there the wife of the said Jesse Russell Smith, and the said Jesse Russell Smith did then and there knowingly and intentionally during the course of the same criminal episode, cause serious bodily injury to the said R-S_ . . ..”

Petitioner contends that this indictment is fundamentally defective because it fails to allege that he acted with the requisite mental state.

In order to establish criminal responsibility for the offense of rape, the State must allege and prove that the defendant acted intentionally, knowingly, or recklessly. V.T.C.A. Penal Code, Secs. 6.02 and 21.02; Braxton v. State, 528 S.W.2d 844 (Tex.Cr.App.1975). The rule stated in Braxton is equally applicable to the offenses of aggravated rape and rape of a child. V.T.C.A. Penal Code, Secs. 21.03 and 21.09.

The indictment in the instant case alleges that petitioner “knowingly and intentionally during the course of the same criminal episode, cause[d] serious bodily injury . . ” (Emphasis added.) The criminal episode referred to is the act of sexual intercourse with the complaining witness. We hold that the emphasized phrase constitutes a sufficient allegation that petitioner knowingly and intentionally engaged in sexual intercourse.

Although we do not find the indictment in the instant case to be fundamentally defective, we do not commend its use. An indictment should allege in as clear and direct a manner as possible that the prohibited act was done with the requisite culpable mental state.

There is no evidence to support petitioner’s assertion that the complaining witness is his daughter. Even if such evidence were in the record, the sufficiency of the evidence to support the conviction may not be collaterally attacked in a habeas corpus proceeding. Ex parte Muro, 394 S.W.2d 174 (Tex.Cr.App.1965); Ex parte Oliver, 374 S.W.2d 894 (Tex.Cr.App.1964); Ex parte Wilson, 374 S.W.2d 229 (Tex.Cr.App.1964). Therefore we do not consider appellant’s contention that he should have been prosecuted under the incest statute.

The relief sought is denied.

      . See, e. g., Morrison and Blackwell, Texas Criminal Forms Annotated Sec. 6.29.


author: ODOM, Judge.

text:
    Perry Wayne WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 58504.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 20, 1978.
    Kerry P. Fitzgerald and Richard E. Harrison, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Gerald A. Banks, James Russ Ormesher and James G. Walker, Asst. Dist. Attys., Dallas, for the State.

      Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated kidnapping, a first degree felony, V.T.C.A., Penal Code Sec. 20.04. Punishment was assessed by the jury at thirty five years.

Appellant initially entered a plea of not guilty, then during the course of the trial, after proper admonishments by the court pursuant to Article 26.13, V.A.C.C.P., he changed his plea to guilty and submitted the punishment question to the jury. From the admonishments it is clear that appellant was pleading guilty to the allegations of aggravated kidnapping in the indictment, and that he was at the same time reserving for presentation to the jury the punishment issue of whether the offense was a first or second degree felony under Sec. 20.04(b), which provides:

“An offense under this section is a felony of the first degree unless the actor voluntarily releases the victim alive and in a safe place, in which event it is a felony of the second degree.”

In his first ground of error appellant contends the trial court erroneously refused to define the term “safe place” in the punishment charge. On this issue the court charged the jury:

“An individual found guilty of aggravated kidnapping shall be punished by confinement in the Texas Department of Corrections for life or for any term of not more than 99 years or less than 5 years if the individual does not voluntarily release the victim alive and in a safe place.
“If the defendant voluntarily releases the victim alive and in a safe place the punishment shall be by confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years, and in addition to imprisonment you may assess a fine not to exceed $10,000.00.
“If you find from the evidence beyond a reasonable doubt that the defendant, or any party to the offense, as that term is hereinafter defined, did not voluntarily release the victim alive and in a safe place, then you will so state by your verdict and assess the defendant’s punishment at confinement in the Texas Department of Corrections for life or for any term of not more than 99 years or less than 5 years.
“If you do find that the victim was voluntarily released by the defendant, or any party to the offense, as that term is hereinafter defined, alive and in a safe place, or if you have a reasonable doubt thereof, you will assess the defendant’s punishment at confinement in the Texas Department of Corrections for any term of not more than 20 years or less than 2 years, and in addition to imprisonment you may assess a fine not to exceed $10,-000.00.”

We approve this jury charge on the punishment issue of Sec. 20.04(b) in substance. One point that lacks total clarity in the third paragraph could be made clearer by changing its opening phrases to:

“If you find from the evidence beyond a reasonable doubt that the victim was not voluntarily released alive and in a safe place by the defendant or any party to the offense as that term is hereinafter defined, then you will . . . ”

The preferred practice would also be to insert the actual names of the accused, alleged parties, and victim in the charge. None of these minor defects, however, are of a fundamental nature. With respect to the complaint that is raised, we hold “safe place” is a phrase commonly understood and an issue of fact, and the charge need not define it for the jury. The ground of error is overruled.

Appellant next submits that the first degree punishment alternative should not have been submitted to the jury because the evidence shows as a matter of law that he was only guilty of the second degree aggravated kidnapping. He argues the evidence unquestionably shows that the place of the victims release was a “safe place.” Accepting the assertions as true for purposes of argument, appellant’s contention is without merit. Section 20.04(b), supra, provides for the lesser punishment range if “the actor voluntarily releases the victim alive and in a safe place.” The victim here was released by the police after a phone call from another party to the crime. Furthermore, even if such a phone call were a constructive release of the victim under the statute, an issue we do not decide here, there was a fact issue regarding appellant’s participation in or refusal to support a phone call to the police revealing the victim’s location. We hold the evidence did not establish that only a second degree aggravated kidnapping was committed and overrule the ground of error.

In his last ground of error appellant argues that a witness’s unresponsive answer referring to “a blackmail plot” required a mistrial. We find the court’s instruction to the jury to disregard the answer was sufficient and that denial of his motion for mistrial was not error.

The judgment is affirmed.

      . The victim had been left in a wooded area where she had been tied up by appellant and his co-parties. After a phone call from another party to the crime, the police searched the area, found the victim and released her.


author: PHILLIPS, Judge.

text:
    Ex parte Robert Earl WILLIAMS.
    No. 58645.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

The petitioner was convicted of the offenses of burglary of a vehicle in Trial Cause Nos. F 76,8466 HPH and F 76-8467 HPH upon his pleas of guilty. Punishment in each case was enhanced pursuant to V.T. C.A., Penal Code, Section 12.42(a) and assessed by the court at 15 years’ imprisonment.

The petitioner contends that the trial court erred in using the same prior felony conviction to enhance punishment in each case and for these reasons he alleges both convictions are void. The record reflects that each conviction was enhanced with a prior conviction for aggravated assault, Trial Cause No. C-74-6911-IL, committed on August 27, 1974.

It is well established that the same prior conviction cannot be used twice to enhance punishment. Gooden v. State, 140 Tex. Cr.R. 351, 145 S.W.2d 179; Shaw v. State, Tex.Cr.App., 530 S.W.2d 838. This same rule applies when two cases are tried together. Shaw v. State, supra.

The prior conviction was properly used to enhance punishment in Trial Cause No. F 76-8466 HPH, but the same conviction should not have been used to enhance punishment in Trial Cause No. F 76-8467 HPH. The latter cause must be remanded for proper assessment of punishment under Y.T.C.A., Penal Code, Section 12.34. See Carvajal v. State, 529 S.W.2d 517.

The relief prayed for in Trial Cause No. F. 76-8466 HPH is denied.

The punishment in Trial Cause No. F 76-8467 HPH having been assessed by the trial court, the judgment of conviction is upheld and the cause is remanded for assessment of punishment in compliance with our holding herein; and, to this extent, the relief prayed for in Trial Cause No. F 76-8467 HPH is granted.

It is so ordered.


text:
    Ex parte Isreal WILLIAMS.
    No. 58644.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is a post-conviction application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P.

On January 23, 1978 the petitioner filed his habeas corpus application with the convicting court alleging, among other things, that on October 23, 1972 he entered guilty pleas to murder in Cause No. C-71-227-NK and to robbery by assault with firearms in Cause No. C-71-226-NK and was assessed sixty (60) years’ imprisonment in each case. He contended that the murder and the robbery convictions arose out of the same transaction and were the result of a continuous and uninterrupted assaultive transaction directed at a single victim in the same place at the same time, see Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970), and that the doctrine of carving was violated.

The judge of the convicting court, who was the trial judge at the time of the guilty pleas, found that petitioner’s allegations were correct, and that the robbery conviction should be set aside as the guilty plea in the murder case was entered and accepted first. Included in the record are the indictments, the transcription of the court reporter’s notes, the judgments and the sentences, which support the petitioner’s allegations and the court’s findings. The record was forwarded to this court. The cause was filed and set for submission solely on the allegations described above.

Upon our review, we conclude that the trial court’s findings are supported by the evidence and petitioner is entitled to the relief prayed for. Duckett v. State, supra; Price v. State, 475 S.W.2d 742 (Tex.Cr.App.1972); Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1974); Ex parte Evans, 530 S.W.2d 589 (Tex.Cr.App.1975); Ex parte Olson, 560 S.W.2d 688 (Tex.Cr.App.1978). The robbery conviction in C-71-226-NK is set aside.

It is so ordered.

      . A copy of this opinion will be sent to the Texas Department of Corrections.


text:
    Ex parte Devere John STANFORD.
    No. 58696.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is a post conviction writ of habeas corpus proceeding; Art. 11.07, V.A.C.C.P.

The appellant was convicted for the offense of robbery May 15, 1950. The sentence of five years’ imprisonment has been served, but this conviction has been used for enhancement of punishment in another state, and there are other collateral consequences resulting from the conviction. The petitioner seeks to have the judgment declared void because when convicted he was indigent, he was unrepresented by counsel, and he did not waive counsel. The petitioner’s allegations have not, and evidently could not be controverted. The present trial judge in the convicting court to whom the petition was presented has made findings of fact which would entitle the petitioner to the relief he seeks.

The trial court finds the record does not indicate that petitioner was represented by counsel at the trial at which he was convicted since there are no notations or entries among papers of the case or on the docket sheet indicating that the appellant waived counsel or was represented by counsel. We note that the printed form of judgment states the petitioner was represented by counsel but in the space provided no name of counsel appears. The District Judge who was sitting and the District Attorney who was in office when the appellant entered his plea of guilty and was convicted in 1950 are both dead.

In view of the record before us we concur with the trial judge’s findings that the petitioner was denied his constitutional right to representation by counsel and is entitled to the relief which he seeks. It is so ordered.


text:
    Mark Anthony SALMONS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 58850, 58851.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    David F. Farris, Fort Worth, court appointed on appeal only, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, Stephen R. Chaney and William S. Harris, Asst. Dist. Attys., Fort Worth, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

These are appeals from orders revoking probation.

On October 26,1977, appellant waived his right to a jury trial and entered pleas of guilty to the offense of possession of methamphetamine (Cause No. 58,850) and burglary of a building (Cause No. 58,851). Punishment in each case was assessed at imprisonment for ten years, but imposition of sentence was suspended and appellant was placed on probation. One of the conditions of his probation was that appellant:

“. . . attend the Cenikor Foundation, Houston, Texas, for the purpose of participating in the rehabilitation for drug addicts, alcoholics, and those with criminal behavior. The defendant is to attend the clinic and counseling programs prescribed by such authority and to obtain a monthly report as necessary from such authority for the probation office and not discontinue cooperating with such authority until he is dismissed from the foundation by competent staff personnel.”

The president of the Cenikor Foundation, who testified at the revocation hearing, described it as a tax-exempt foundation which operates a resident treatment facility in Houston for persons with drug addiction and criminal behavior problems.

On December 13, 1977, motions to revoke appellant’s probation in each cause were filed, alleging that he had left the Cenikor Foundation “without authorization from competent staff personnel and without approval of the Court.” After hearing evidence, the trial court revoked appellant’s probation and imposed sentence in each cause.

In his sole ground of error, appellant contends that the condition of probation in question constitutes an improper delegation of judicial authority. We disagree. This Court has previously recognized the authority of a trial court, following a plea of guilty, to order an offender to commit himself to a community drug treatment center as a condition of his probation. See Figgins v. State, 528 S.W.2d 261 (Tex.Cr.App.1975). In 1977, the legislature amended the Adult Probation Law to authorize such commitment in all cases. Art. 42.12, Sec. 6(j) and (k), V.A.C.C.P. The amendment became effective August 29, 1977. Although such a condition of probation vests in the treatment facility a certain degree of discretion with regard to the conduct of the probationer while a resident therein, such discretion is necessary if the facility is to be successful in its rehabilitative efforts. Furthermore, there is a clear distinction between rules imposed by a custodial treatment facility in furtherance of its rehabilitative function and the conditions of probation. We hold that in ordering a probationer to obey the rules and regulations of the community-based facility in which he is placed, a trial court does not thereby improperly delegate to the facility the authority to specify the terms of probation. See and compare Smith v. State, 527 S.W.2d 896 (Tex.Cr.App.1975); Parsons v. State, 513 S.W.2d 554 (Tex.Cr.App.1974); Brown v. State, 508 S.W.2d 366 (Tex.Cr.App.1974).

Appellant does not contend that the condition of probation in question is unen-forceably vague or indefinite, and the evidence adduced at the hearing establishes that he was aware of the nature of the Cenikor Foundation’s program at the time he applied for probation. The evidence also establishes that appellant left the foundation’s treatment facility within a week of his arrival despite the efforts of the staff to convince him to stay. At the hearing, appellant refused the trial court’s offer to continue his probation if he would agree to return to the foundation.

The trial court did not abuse its discretion in revoking appellant’s probation.

The judgments are affirmed.


author: W. C. DAVIS, Judge.

text:
    Ex parte Marvin L. DOBBINS.
    No. 58866.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 20, 1978.

      Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is a post conviction writ of habeas corpus application filed pursuant to Art. 11.07, V.A.C.C.P.

Petitioner asserts that he is illegally restrained as “the judgment of conviction is based upon an information which failed to state an offense against the law.”

On August 5, 1976, the petitioner was convicted of criminal mischief. V.T.C.A., Penal Code, Sec. 28.03(b)(4)(A) in Cause No. 1444 in the District Court of Gaines County, Texas, 106th Judicial District. He waived indictment and proceeded by information. Upon a plea of guilty, the court sentenced petitioner to a term of two to five years’ confinement in the Texas Department of Corrections. The right to appeal was waived.

Petitioner’s conviction was had upon an information which purported to charge the offense of criminal mischief. The information fails to allege that the property was destroyed without the effective consent of the owner, an essential element of the offense. We agree with the trial court’s conclusion on consideration of petitioner's application on May 18, 1978, that for the failure to allege an essential element of the offense, the information is fundamentally defective and the conviction is void. Art. 21.23, V.A.C.C.P.; Jeffers v. State, 545 S.W.2d 482 (Tex.Cr.App.1977); Timms v. State, 542 S.W.2d 424 (Tex.Cr.App.1976). See also Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977).

The conviction is set aside and the information is ordered dismissed. A copy of this order shall be delivered to the Texas Department of Corrections.

Relief granted.


text:
    Ex parte William McCURDY.
    No. 58867.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 20, 1978.

      Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is a felony post-conviction habeas corpus application brought pursuant to Article 11.07, V.A.C.C.P.

On February 13, 1978, petitioner was convicted of escape and sentenced to two years. By application for habeas corpus petitioner now contends his conviction is void because the indictment is fundamentally defective. The indictment in relevant part alleges that petitioner did:

“knowingly and intentionally escape from his confinement in Woodlawn Detention Center where he was in custody of F. N. Gilbert, at the said penal institution. ...”

The crime of escape is defined in V.T.C.A., Penal Code See. 38.07, which provides:

“(a) A person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody.
“(b) Except as provided in Subsections (c) and (d) of this section, an offense under this section is a Class A misdemeanor.
“(c) An offense under this section is a felony of the third degree if the actor:
“(1) is under arrest for, charged with, or convicted of a felony; or
“(2) is confined in a penal institution.
“(d) An offense under this section is a felony of the second degree if the actor used or threatened to use a deadly weapon to effect his escape.”

Petitioner argues that the indictment is fundamentally defective because it fails to allege all elements of the offense. Such an indictment would be void, and would be subject to challenge at any time because the trial court would have been without jurisdiction to hear the case. Petitioner contends being “arrested for, charged with, or convicted of an offense” is an element under the statute and was not alleged in the indictment. In Garcia v. State, Tex.Cr.App., 537 S.W.2d 930, the Court wrote:

“The constituent elements of the offense [under Sec. 38.07] are that a person (1) escape, (2) from custody, (3) after having been arrested for, charged with or convicted of an offense.”

It is, of course, also necessary to allege facts showing the offense is a second or third degree felony under subsection (c) or (d) before the district court with only felony jurisdiction can hear the case. Here, the indictment alleged the punishment element under subsection (c)(2). It failed, however, to allege the third element of the underlying offense as those elements are listed in Garcia, supra. The indictment is therefore fatally defective and petitioner is entitled to relief.

The conviction is set aside and the indictment is ordered dismissed.


text:
    Ex parte John Wayne NIXON.
    No. 58868.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      John Wayne Nixon, pro se.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is a post-conviction application for writ of habeas corpus pursuant to Article 11.07, V.A.C.C.P.

The petitioner was indicted on July 28, 1975, for the offense of burglary. The petitioner pled guilty to the indictment and punishment was assessed at 10 years’ imprisonment in the Texas Department of Corrections. No appeal was taken.

On February 27,1978, the petitioner filed his application for writ of habeas corpus in the trial court. Petitioner alleged ineffective assistance of counsel. The State controverted the appellant’s application and denied his allegations but pointed out that the information upon which the petitioner’s burglary conviction was predicated was fatally defective. The trial court filed findings of fact which agreed with the State’s position and recommended granting the writ of habeas corpus. We hereby grant the relief requested.

The felony information, omitting the formal portions, states that the petitioner:

“did then and there with intent to commit, enter a habitation which was not open to the public, without the effective consent of Jimmy Bowen, the owner,

V.T.C.A., Penal Code, Section 30.02, provides in part:

“(a) A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; . . ”

It is well established that an indictment or information for burglary must allege that the entry was with the intent to commit theft or a named felony or that it allege instead the elements of the felony or theft in the indictment. Williams v. State, Tex. Cr.App., 505 S.W.2d 838; Mitchell v. State, 118 Tex.Cr.R. 77, 37 S.W.2d 1018. In the instant case, having failed to allege this element of burglary, the indictment was fundamentally defective. Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266.

The petitioner’s application for writ of habeas corpus is granted and the prosecution under this indictment is dismissed.

It is so ordered.


author: TOM G. DAVIS, Judge.

text:
    Ex parte Buster CANTRELL.
    No. 58869.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.

      Ken Anderson, Huntsville, for appellant.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an application for post-conviction writ of habeas corpus brought under the provisions of Art. 11.07, V.A.C.C.P. See generally Ex parte Young, 418 S.W.2d 824 (Tex.Cr.App.1967).

The petitioner contends that either his conviction in Cause No. 83,404 for robbery or in Cause No. 83,403 for assault with intent to commit murder with malice was obtained in violation of the “carving doctrine” in that he had previously been convicted in one or the other case and both convictions involved the same victim, the same transaction, and the same time.

Without holding an evidentiary hearing, the trial court, being the same court which originally convicted the petitioner, made the following findings of fact:

“1. The court accepted a plea of guilty from petitioner first in Cause No. 83,402 for the murder of Samuel Ward Crager and sentenced the defendant to life therein.

2. Secondly, petitioner received another life sentence upon a plea of guilty in the robbery of Thomas Dueon Nanney, which occurred on February 12, 1971, in Cause No. 83,404.

3. Thirdly, petitioner received a 25-year sentence to run concurrently with the life sentence in Cause No. 83,404, for the assault upon Thomas Dueon Nanney on the same date and at the same time of the robbery. This was in Cause No. 84,303.” [Emphasis supplied.]

No contention is advanced as to finding No. “1.” The validity of that conviction is not in issue.

This Court is of course not bound by the findings of the trial court in a habe-as corpus proceeding. Ex parte Jewel, 535 S.W.2d 362 (Tex.Cr.App.1976); Ex parte Bagley, 509 S.W.2d 332 (Tex.Cr.App.1974); Ex parte Swinney, 499 S.W.2d 101 (Tex.Cr.App.1973).

It is well established that “the prosecuting attorney may carve as large an offense out of a single transaction as he can but he must cut only once . . . .” 1 Branch’s Penal Code, 2d Ed., Sec. 654, p. 625 (1956); Ex parte Jewel, supra; Fleming v. State, 168 Tex.Cr.R. 595, 330 S.W.2d 457 (Tex.Cr. App.1959). An accused cannot twice be placed in jeopardy for the same criminal act. See Art. 1.10, V.A.C.C.P.

The State has filed no brief in this Court and except for a “general answer” filed in the trial court does not appear to dispute the fact findings made by the trial court and set out above.

The question before us becomes which conviction must be set aside. The general rule is that where the record does not reflect which conviction occurred first, it will be assumed that the lower numbered conviction occurred first and the high numbered conviction will be set aside. Ex parte Birl, 545 S.W.2d 169 (Tex.Cr.App.1977); Ex parte Calderon, 508 S.W.2d 360 (Tex.Cr.App.1973).

In the instant case, we have a specific and unchallenged finding of fact by the trial court that petitioner’s guilty plea in Cause No. 83,404 was entered prior to the entry of the guilty plea in Cause No. 83,403. We therefore conclude that petitioner’s conviction for assault with intent to commit murder with malice in Cause No. 83,403 should have been barred under the carving doctrine.

For the reasons stated, the relief sought is granted and petitioner’s conviction for assault with intent to commit murder with malice in Cause No. 83,403 is set aside.

      . Although still providing excellent guidance on the procedures to be followed in post-conviction writs of habeas corpus, Ex parte Young, supra, must be read in conjunction with the 1977 amendment to Art. 11.07. See Acts 1977, 65th Leg., p. 1974, ch. 789, Sec. 1, eff. August 29, 1977.


text:
    Harry James THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 59357.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    No appearance for appellant.
    No appearance for appellee.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

Appellant was convicted by a jury for sexual abuse. The jury assessed punishment at imprisonment for seven years.

Appellant was apparently represented by retained counsel. At least one of these attorneys is also counsel of record on appeal. However, no brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09, Vernon’s Ann.C.C.P., and none has been filed here. There is no suggestion in the record that counsel was allowed to withdraw from the case.

Subsequent to appellant’s conviction he filed a pauper’s oath to secure a transcription of the court reporter’s notes of certain portions of the proceedings. The record does not show what action, if any, the trial court took in response to the affidavit; however, the record does contain a transcription of the court reporter’s notes.

In Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970), after reviewing several authorities we stated:

“It would appear that the proper remedy would be to abate this appeal . so that the trial court can determine if the failure of counsel to file appellate briefs was taken with the knowledge and consent of the appellant. If it was, that fact may be certified to this court and the appeal returned to this court together with the trial court’s findings. If it was not, then the court should determine if a federally protected right was infringed by counsel’s action. If the trial court determines a federally protected right has been infringed, he should then take steps to provide effective aid of counsel on appeal and conduct such proceedings in the trial court as may be required under the provisions of Article 40.09, Vernon’s Ann.C.C.P.
The fact that it was known to the trial court that appellant was destitute, desired to appeal, was confined in jail pending appeal and that non-appointed counsel had failed to file an appellate brief in the trial court (see Article 40.09, Sec. 9, V.A.C.C.P.) should have caused the trial court to make further inquiry.
Further inquiry at the very time such circumstances come to the attention of the trial court may well avoid abated appeals, out of time appeals and collateral attacks upon final judgments when the memory of witnesses has dimmed and records misplaced or lost.”

Unlike Steel, we have found nothing in the record to show that the trial court found that appellant was “financially unable to pay the expenses” of this appeal. 453 S.W.2d at 486. However, in view of appellant’s affidavit, a hearing on the question of his indigency vel non is in order. Consequently, the appeal is abated and the cause is remanded to the trial court for a hearing. If the trial court finds appellant indigent, the court shall appoint counsel for appellant, and further proceedings shall be had in accordance with the appropriate provisions of Article 40.09, supra. If the court finds appellant is not indigent and is represented by retained counsel, it should then proceed with the hearing as outlined in Steel. By supplemental transcript the trial court shall forward to this Court its findings of fact and conclusions of law, together with a transcription of the court reporter’s notes of the hearing.

The appeal is abated.


author: CADENA, Chief Justice.

text:
    Mary Elizabeth LIPSTREU et al., Appellants, v. Leon HAGAN et al., Appellees.
    No. 15936.
    Court of Civil Appeals of Texas, San Antonio.
    July 19, 1978.
    Rehearing Denied Sept. 20, 1978.

      David M. Coover, Jr., Corpus Christi, for appellants.
    Parker Ellzey, Alice, for appellees.
   OPINION

CADENA, Chief Justice.

Plaintiffs, Mary Elizabeth Lipstreu, Cyrus Harry Grett, Jr., William F. Grett, Jr., and Richard L. Grett, filed this suit for recovery of executor’s fees which they claimed were due their ancestor, Cyrus Grett, for services rendered by him in connection with the settlement of the estate of Lou Ella Wade, deceased. The trial court rendered summary judgment in favor of defendants, Leon Hagan and Frank B. Lloyd, Jr., present executors of the estate of Lou Ella Wade, denying plaintiffs’ claim for recovery of fees allegedly due as the result of the sale of the Wade Ranch, the principal asset of the estate. Plaintiffs’ claims for other fees were disposed of by agreed judgment, and this appeal is limited to the propriety of the summary denial of plaintiffs’ claim for fees claimed by them to be due as the result of the sale of the ranch.

In her will, Lou Ella Wade, who died in 1972, named Leon Hagan and plaintiffs’ deceased ancestor, Cyrus Grett, as independent executors. Until his death on February 6, 1976, Cyrus Grett “did the largest part of the work involved” in the administration of the estate, including assistance in the preparation and trial of litigation involving questions relating to the ownership of property of the estate. Prior to the death of Cyrus Grett, the co-executors had advertised for bids for the Wade Ranch. Sealed bids were received and opened on February 19, 1976, 13 days after the death of Cyrus Grett. After the bids were opened, the highest bidder deposited the sum of $10,000.00 as earnest money.

On February 23,1976, four days after the sealed bids were opened and the earnest money deposited by the highest bidder, Frank B. Lloyd, Jr., was appointed to succeed Cyrus Grett as co-executor of the estate. On May 14, 1976, a contract for the sale of the ranch to the highest bidder was executed, and on that date the successful bidder deposited an additional $75,000.00 as earnest money. According to the contract, the successful bidder was to pay the sum of $493,290.00 in cash at the time the sale was consummated, with the remainder of the purchase price of $1,701,000.00 to be evidenced by promissory notes executed by the successful bidder. A deed to the ranch was subsequently executed by the devisees under the will; the high bidder paid the amount called for to be paid in cash under the contract and executed the promissory notes and the deed was delivered to the purchaser.

It is undisputed that no money representing the proceeds of the sale of the Wade Ranch was paid by the successful bidder prior to the death of Cyrus Grett. In his deposition, Leon Hagan, one of the defendants, stated that no substantial services were performed by him, or by Frank B. Lloyd, Jr., who succeeded Cyrus Grett as co-executor, in connection with the completion of the transaction after the death of Cyrus Grett.

In their petition, plaintiffs alleged that Cyrus Grett was entitled to one-half “of the statutory executor’s fee of five per cent (5%) of the sale price of the Wade Ranch, which price was $1,700,000.00, * * *, and Plaintiffs therefore would show that the Estate of Lou Ella Wade is indebted to them in the sum of $42,500.00.”

Paragraph (a) of § 241, Tex.Prob.Code Ann., provides that executors shall be entitled to receive, “and may retain in their hands, a commission of five per cent (5%) on all sums they may actually receive in cash, * * Prior to his death, Cyrus Grett did not “actually receive in cash” any part of the money representing the proceeds from the sale of the Wade Ranch. The statute does not provide for a commission based on the sums actually received in cash by the estate. It limits the commission to a percentage of the sums actually received in cash by the executor.

We think it clear that if the language of that portion of paragraph (a) of § 241, which is quoted in the first sentence of the preceding paragraph, is given its ordinary meaning, it furnishes no support for plaintiffs’ claim. Plaintiffs urge that common sense and equity dictate that Cyrus Grett, who had labored 8½ years and had successfully cleared title to the property of the estate by means of a complicated lawsuit so that the property could be sold on terms most beneficial to the estate, should not be denied compensation for his faithful service because of the fact that he died a few days before the bids were opened.

The common law doctrine that a personal representative of a decedent was not entitled to compensation for his services has been abrogated by most, if not all, American jurisdictions by statute. Nevertheless, it is generally held that in the absence of a testamentary provision providing for compensation of the personal representative his right to compensation arises from, and is controlled by, statute. It is also generally held that statutes providing for compensation of the personal representative cannot be construed contrary to their plain and definite language. 34 C.J.S., Executors and Administrators §§ 852-53, pp. 1008-10.

Since the portion of the statute relied on by plaintiffs limits, in plain and definite language, the compensation to be paid to an independent executor to an amount representing a percentage of sums actually received in cash by him, it furnishes no basis for recovery by plaintiffs in this action.

Plaintiffs rely heavily on Matter of Jadwin, 58 Misc.2d 809, 296 N.Y.S.2d 901 (Sur.1969). However, a reading of that opinion reveals that the judgment in that case was based on a statutory provision which expressly provided for a method of compensation of an executor who died prior to the time that he was entitled to payment. 296 N.Y.S.2d at 909.

The judgment of the trial court is affirmed.


author: ROBINSON, Chief Justice.

text:
    Homer G. MAXEY et al., Appellants-Appellees, v. TEXAS COMMERCE BANK OF LUBBOCK, Texas (formerly Citizens National Bank of Lubbock), Appellants-Appellees.
    No. 8834.
    Court of Civil Appeals of Texas, Amarillo.
    Aug. 16, 1978.
    Rehearing Denied Sept. 18, 1978.

      Simon & Simon, Harold D. Hammett, Mike Liles, Fort Worth, for Homer G. Max-ey, et al.
    Jones, Trout, Flygare & Moody, Charles B. Jones, Lubbock, Shafer, Gilliland, Davis, Bunton & McCollum, Inc., Perry Davis, Jr., James M. O’Leary, Odessa, for Citizens National Bank.
   ROBINSON, Chief Justice.

This suit was brought by plaintiffs Homer G. Maxey and wife, Melba Maxey, William Goodacre and wife, Glendell Goodacre, and Tommy Elliott and wife, Carla Jean Elliott, against Texas Commerce Bank of Lubbock, Texas (formerly Citizens National Bank of Lubbock), alleging that the Bank failed to exercise good faith in a private foreclosure sale of stock in plaintiffs’ closely held corporations. The jury returned a verdict for plaintiffs. Both parties appeal from the judgment entered by the trial court. Reversed and remanded.

Plaintiffs went to trial on their Sixth Amended Original Petition. The plaintiffs alleged that prior to October 1962, Homer Maxey was induced to bring his banking business to the defendant Bank by an offer of an unsecured line of credit up to $1,000,-000. At that time Maxey owned several urban properties in Lubbock, Texas, through control of Maxey Lumber Company and Plaza Building Corporation, two closely held corporations. Maxey was in the process of trading his urban holdings for rural properties to develop a cattle raising business consisting of several large ranches and a feedlot operation. During the period October 1962 through January 1966, Maxey negotiated numerous loans from defendant Bank and was required to give the Bank mortgages and pledges of stock in both Maxey Lumber and Plaza. Plaintiffs’ petition concedes that Maxey’s indebtedness to the Bank totaled approximately $1,200,000. The Bank’s security for this indebtedness included more than 35,000 acres of farm and ranch land in three states, and at least 1600 head of cattle on the ranches.

Plaintiffs’ petition further alleges that the Bank persistently attempted to exert control over Maxey’s holdings and that Maxey executed the security agreements under threat of foreclosure. On February 16, 1966, only a few hours after Maxey refused to execute a power of attorney over his properties in favor of the Bank, the Bank instituted foreclosure proceedings on all of the collateral held as security for the payment of plaintiffs’ indebtedness. Plaintiffs alleged that the Bank failed to exercise its contractual obligation to dispose of the collateral in good faith and did not receive adequate consideration for the sale of the foreclosed assets. The stock of Plaza Building Company was sold for $749 at private sale on the afternoon of February 16,1966, to Monterey Lubbock Corporation, a corporation owned by officers and agents of the Bank. Twenty-three thousand, one hundred and twenty-five (23,125) shares of Maxey Lumber Company stock were sold to the Bank for $231,000.

The plaintiffs sought judgment for actual damages of at least $5,862,893, representing the value of the collateral, less the indebtedness owed to the Bank. Plaintiffs also prayed for exemplary damages of at least $10,000,000 and prejudgment interest from the date of foreclosure. In response to special issues submitted, the jury found:

(1) The actual value of the stock of Plaza Building Corporation on February 16, 1966, was $3,040,599.31.
(2) Maxey’s interest (46.25 percent) in Maxey Lumber Company stock had a cash market value on February 16, 1966, of $689,541.22.
(3) The cash market value of the assets of Plaza Building Corporation on February 16, 1966, was $5,603,075.
(4) The total liabilities of Plaza Building Corporation on February 16, 1966, were $2,562,475.69.
(5) The sum of $749 paid for the stock of Plaza Building Corporation at the foreclosure sale on February 16, 1966, was a grossly inadequate consideration.
(6) The sum of $231,000 paid for the 46.25 percent interest in Maxey Lumber Company at the foreclosure sale on February 16,1966, was a grossly inadequate consideration.
(7) The Bank failed to exercise good faith at the foreclosure sale of February 16, 1966, when it sold the Plaza Building Corporation stock.
(8) The failure of the Bank to exercise good faith at the foreclosure sale was a cause in fact contributing to the sale of the stock of Plaza Building Corporation for a grossly inadequate consideration.
(9) The Bank failed to exercise good faith at the foreclosure sale of February 16, 1966, when it sold the 46.25 percent interest in Maxey Lumber Company.
(10) The failure of the Bank to exercise good faith at the foreclosure sale was a cause in fact contributing to the sale of the 46.25 percent interest in Maxey Lumber Company for a grossly inadequate consideration.

After receiving the jury verdict, the trial court found as a matter of law that the liabilities of Plaza Building Corporation on February 16, 1966, were $3,822,834.18, and therefore disregarded the jury answer to Special Issue no. 4 (finding the liabilities of Plaza Building Corporation on February 16, 1966, to be $2,562,475.69.) The effect of disregarding the jury answer was to reduce the verdict for plaintiffs by $1,260,358.49. This was the amount of money the plaintiffs contended was a capital contribution by Maxey to the closely held corporation. By disregarding Special Issue no. 4, the trial judge impliedly found as a matter of law that this sum was not a capital contribution, but rather a loan to the Plaza Building Corporation and therefore a liability of Plaza.

Both parties have appealed from the trial court’s judgment. The Bank’s 47 points of error challenge the legal and factual sufficiency of the evidence to support the jury answers to the special issues, contend that plaintiff should be barred by res judicata, and further contend that the trial court erred in substituting its finding for the jury answer to Special Issue no. 4. Maxey contends, inter alia, that the trial court erred in finding as a matter of law that the money contributed by Maxey to Plaza was a loan rather than a capital contribution, and also that the trial court erred in refusing to award prejudgment interest and exemplary damages to plaintiffs.

At the outset, we consider the Bank’s contention that the trial court erred in entering judgment for Maxey because prior judgments in favor of the officers, agents and employees of the Bank are res judicata to any suit by Maxey based on their acts. The Bank argues that any act of bad faith by the corporation would have required an affirmative act by these individuals. We overrule these points on the authority of the express holding of the Texas Supreme Court that the liability of the defendant Bank was not entirely derivative. “The bank as a contracting party to chattel mortgages, pledge agreements and deeds of trust owed the plaintiffs duties which were separate and distinct from the duties owed the plaintiffs by the bank’s individual officers, directors, shareholders or employees.” Maxey v. Citizens National Bank of Lubbock, 507 S.W.2d 722, 725 (Tex.1974).

We next consider the Bank’s points of error challenging the jury answers to Special Issues nos. 5 through 10. The jury found that the Bank failed to exercise good faith in the sale of the stock of both Plaza Building Corporation and Maxey Lumber Company, that the consideration paid for the collateral was grossly inadequate, and that the failure to exercise good faith at the foreclosure sale was a cause in fact of the sale of stock for a grossly inadequate consideration. The Bank challenges the legal and factual sufficiency of the evidence to support each answer; and argues that the findings were against the undisputed evidence, or alternatively, against the great weight and preponderance of the evidence.

The evidence is undisputed in the instant case that the Bank conducted a private sale without asking for or receiving other bids, without having the property exhibited, and without inviting prospective purchasers. The security agreement authorized private sales without notice and allowed the Bank to purchase the collateral. Nevertheless, the provisions of the agreement do not obviate the requirement that the secured party exercise good faith in selling the collateral:

The pledgee, though having the power by contract to sell the collateral at private sale without notice to the pledgor, cannot escape the duty resting upon him as a trustee to conduct the sale fairly and in good faith, and in such a way as to sub-serve not only the rights he has, but also the interest of the pledgor.

King v. Boerne State Bank, 159 S.W. 433, 437 (Tex.Civ.App.—an Antonio 1913, writ ref’d). When a private sale is made under a mortgage, the sale must in all respects be fairly conducted. Eichman v. Highland Park State Bank, 345 S.W.2d 352, 354 (Tex.Civ.App.—Eastland 1961, writ ref’d). A chattel mortgagee who buys the collateral at a private sale has adverse interests — his fiduciary duty is to sell the collateral at the highest possible price, but as a purchaser his interest is to buy the collateral at the lowest possible price. In such cases, it is the duty of the court to examine the sale closely and require the mortgagee to prove by clear and convincing evidence that such sale was fairly and honestly conducted in all respects. Kolbo v. Blair, 379 S.W.2d 125, 131 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.).

The phrase “grossly inadequate” has been judicially defined as “a consideration so far short of the real value of the property as to shock a correct mind, and thereby raises a presumption that fraud attended the purchase.” Richardson v. Kent, 47 S.W.2d 420, 425 (Tex.Civ.App.—Dallas 1932, no writ). The determination of whether a consideration is “grossly inadequate” is properly for the jury. After reviewing all of the evidence, we find that there was ample evidence to support the jury answers to special issues concerning grossly inadequate consideration and lack of good faith by the Bank in the sale of the collateral.

The findings that the Bank failed to exercise good faith in the sale of the collateral and that the consideration received was grossly inadequate laid the predicate for the determination of damages, based on the market value of the stock. A prior opinion in this case held:

This corporation was a closely held family corporation. It is uncontradieted there was no evidence of the market value of Plaza stock. No sales of its stock were shown to have been made prior to foreclosure. Book value is entitled to little, if any, weight in determining the value of corporate stock, and many other factors must be taken into consideration to determine the value. Bendalin v. Delgado, 406 S.W.2d 897 (Tex.1966). The value of corporate stock is predicated on the market value of the assets of the company after deducting its liabilities, [citations omitted].

Citizens National Bank of Lubbock v. Maxey, 461 S.W.2d 138, 141 (Tex.Civ.App.—Amarillo 1970, writ ref’d n. r. e.). That holding is the law of the case, binding in all subsequent stages of the case on the question of stock value. See, Dessommes v. Dessommes, 543 S.W.2d 165 (Tex.Civ.App.—Texarkana 1976, writ ref’d n. r. e.). Thus, issues were submitted to the jury requiring determination of the cash market value of Plaza’s assets as of the date of foreclosure (Special Issue no. 3) and Plaza’s total liabilities at that time (Special Issue no. 4). The value of the stock was calculated by subtracting total liabilities from total assets (Special Issue no. 1).

The Bank challenges the jury answers to each of these three issues, arguing that there is no evidence or insufficient evidence to support the jury findings, that the findings are contrary to the great weight and preponderance of the evidence, and that the trial court erred in entering judgment based upon these findings because they are contrary to the undisputed evidence.

On the question of the value of Plaza’s assets and liabilities, plaintiffs offered testimony from Charles Osenbaugh, an independent appraiser who examined all of Maxey’s properties, Ed Drumwright, the president of an Arizona holding company that was interested in purchasing Maxey’s properties, and Maxey himself. The defendants offered evidence of the value of some of the individual pieces of property, but did not value the properties in the context of the entire feedlot operation.

The Bank challenges the testimony of plaintiffs’ expert witness, Charles Os-enbaugh, because he did not use comparable sales to value Plaza’s properties. Osen-baugh’s credentials as an appraiser were established in evidence and are not challenged on appeal. Once an expert witness has been qualified to testify on value, his testimony is admissible and the weight given the evidence is for the jury’s determination. City of Lubbock v. Tice, 517 S.W.2d 428 (Tex.Civ.App. — Amarillo 1974, no writ). Despite Osenbaugh’s use of a method of valuation which did not rely on comparable sales, this lack of supportive market data would go to the weight and not to the propriety of the evidence. Texas Electric Service Company v. Wheeler, 551 S.W.2d 341 (Tex.1977). We conclude that Osen-baugh’s testimony, based on his examination of the properties, was competent to support the jury findings.

Next, the Bank argues that Maxey was not qualified to give an opinion on the value of the assets. Alternatively, they argue that his testimony is binding on the plaintiffs (the jury found the value of the assets to be approximately $500,000 more than Maxey testified). We reject the Bank’s first theory. Maxey knew the value of his land and was qualified to testify concerning the value of his properties. The law is well settled that the owner of real property is competent to testify concerning its value if he knows the market value of his land. State v. Dehnisch, 437 S.W.2d 46 (Tex.Civ.App.—Corpus Christi 1968, no writ).

We also overrule the Bank’s contention that the plaintiffs are bound by Maxey’s testimony about property values. If a party testifies to a fact, not as a matter of opinion, but as a considered circumstance of the case, his adversary is entitled to hold him to it as an informal judicial admission. Griffin v. Superior Insurance Company, 338 S.W.2d 415, 418 (Tex.1960). In the instant case Maxey’s testimony was based upon his opinion of the property values. A party is not bound by facts testified to only by way of opinion. Petit v. Klinke, 152 Tex. 142, 254 S.W.2d 769 (1953). Similarly, plaintiffs’ charts and exhibits showing the values of Plaza’s assets are not judicial admissions. These charts only illustrated and compared the opinions of plaintiffs’ witnesses concerning the property values in an easy-to-follow form. See LeCompte v. Sanders, 378 S.W.2d 861 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.).

In July 1965 the Bank agreed to postpone foreclosure for at least six months and to furnish Maxey with additional funds during this time. In consideration of this agreement, Maxey authorized Henry Strasbur-ger, a Dallas attorney, to advertise and sell' Plaza’s properties according to a schedule of minimum values worked out by officers of the Bank and Harold Blank, Maxey’s business partner in Maxey Lumber Company. The Bank contends that Maxey should be bound by the values for which he authorized the sale of the properties in July 1965.

Generally, a landowner’s offer to sell his land for a certain price has been considered an admission of the value of his land. 2 McCormick & Ray, Texas Law of Evidence (2d ed. 1956) § 1524. Nevertheless, this general rule is applicable only if the proposed offer was freely and openly made. The offer is not an admission if made under circumstances of economic duress. See Gomez Leon v. State, 426 S.W.2d 562, 565 (Tex.1968); Bradfield v. State, 524 S.W.2d 438 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.). The record shows that the Strasburger Agreement was not made freely and openly. There is evidence that Maxey was under pressure from the Bank to enter into the Strasburger Agreement or face immediate foreclosure on the chattel mortgages.

The Bank further argues that Max-ey’s testimony is incompetent because he arbitrarily increased the book values of the assets inconsistent with their acquisition costs. Evidence of the purchase price is competent as evidence of value at a later date if the sale was voluntary and not remote in time. City of Dallas v. Fridge, 410 S.W.2d 40 (Tex.Civ.App.—Austin 1966, no writ). An examination of acquisition costs in the instant case is complicated by Max-ey’s use of tax free exchanges in trading his urban assets for ranches. The defendant Bank offered Maxey’s tax basis in certain urban assets as evidence of their value. The correlation between the depreciated book value of an urban asset traded for a ranch, and the value of that ranch several years later is tenuous at best. See United States v. Leavell & Ponder, Inc., 286 F.2d 398 (5th Cir.1961) cert. denied, 366 U.S. 944, 81 S.Ct. 1674, 6 L.Ed.2d 855.

Extensive testimony was offered concerning the value of Plaza’s assets. The answer to Special Issue no. 3 was well within the range of values presented in evidence. The jury had the right to weigh the evidence and set the total value at any amount between the highest and lowest values expressed by witnesses. Centerville Independent School District of Leon County v. Wingfield, 450 S.W.2d 946, 948 (Tex.Civ. App.—Waco 1970, no writ); Gossett v. State, 417 S.W.2d 730 (Tex.Civ.App.—Eastland 1967, writ ref’d n. r. e.).

After reviewing all of the evidence, we conclude that the jury answer to Special Issue no. 3, that the value of Plaza’s assets was $5,603,075, is supported by the evidence and is not so against the great weight and preponderance of the evidence so as to be manifestly unjust. Plaintiffs’ points of error challenging Special Issue no. 3 are overruled.

We next consider Plaza’s liabilities (Special Issue no. 4). The Bank challenges the legal and factual sufficiency of the evidence to support the jury finding that Plaza’s liabilities were $2,562,475 and contends that the finding is contrary to the undisputed evidence and against the great weight and preponderance of the evidence.

Liabilities of Plaza totaling $2,562,475 were undisputed. Certain other liabilities of Plaza were disputed. During a discussion concerning the submission of the special issues, counsel for Maxey stated that he would be willing to stipulate to the debts of Plaza Building Corporation except for the value of the Plainsman Hotel lease and the notes from Plaza to Maxey.

Under the terms of the Plainsman Hotel lease, Plaza was obligated to pay $6,000 per month rent for twenty years and was liable for all wear on the premises during the lease term. While there was evidence that the Plainsman Hotel lease was a liability, the extent of the liability was not established as a matter of law.

Plaza’s notes to Maxey were for $1,260,-358.49 advanced to Plaza Building Corporation. Maxey contends that the jury believed that the advances were actually capital contributions, and therefore not liabilities of Plaza. The advances were documented by promissory notes payable to Maxey and a purchaser of Plaza stock would consider Maxey’s claim- against the corporation in valuing the stock. We have reviewed all of the evidence, including that favorable to the jury answer, and conclude that the overwhelming weight of the evidence is that Maxey’s advances to Plaza Building Corporation were loans rather than capital contributions. It necessarily follows that the jury finding that Plaza’s liabilities were $2,562,475 is against the overwhelming weight of the evidence.

After receiving the verdict the Bank filed a motion for mistrial based on the jury answer to Special Issue no. 4. The trial court attempted to correct the jury verdict by disregarding the finding on the liabilities of Plaza and finding as a matter of law that the liabilities of Plaza total $3,822,834.18 (by adding $1,260,358.49, representing Plaza’s notes to Maxey). This action of the trial court is challenged by both parties.

Maxey contends that the jury answer was supported by the evidence and is a proper basis for judgment. We overrule that contention because we have found that the answer was against the overwhelming weight and preponderance of the evidence.

The Bank contends that the trial court erred in substituting its finding for the jury finding because the amount of total liability was not established as a matter of law. We sustain this contention. As discussed earlier in this opinion, certain alleged liabilities were disputed, thus the total liabilities were not established as a matter of law. In such cases, the trial judge may not substitute his own finding for that of the jury. His only recourse if he sets aside the finding or verdict is to grant a new trial. Garcia v. Garcia, 94 S.W.2d 864 (Tex.Civ.App.—San Antonio 1936, no writ). We conclude that the trial court erred in overruling the Bank’s motion for mistrial.

We next consider plaintiffs’ alternative contention that even if the notes payable to Maxey were loans rather than capital contributions, the Bank, as successor corporation to Plaza Building Corporation, must pay the note owed to Maxey. We find no pleadings to support this argument. In their Sixth Original Petition, plaintiffs alleged “in addition, the Bank precluded Plaza Corporation from repaying Maxey.” Plaintiffs did not allege that the Bank was Plaza’s successor corporation. Maxey did not request issues about the liability of the Bank for the debt of Plaza to Maxey. An appellant is limited to the theories upon which the case was tried and may not urge new theories for the first time upon appeal. Brown-McKee, Inc. v. Western Beef, Inc., 538 S.W.2d 840 (Tex.Civ.App. — Amarillo 1976, writ ref’d n. r. e.).

We next consider Maxey’s other closely held corporation, Maxey Lumber Company. The assets of Maxey Lumber included the business of the Lumber Company itself, the property on which the Lumber Company was situated, and a ranch in Missouri. Homer Maxey owned 75 percent of the stock (37,500 shares) of Maxey Lumber Company. Citizens National Bank had a first lien upon 28,125 shares of Lumber Company stock, which represented 46.25 percent of the outstanding shares of stock. Harold Blank, Maxey’s partner in the Lumber Company, had a first lien on Maxey’s remaining 14,375 shares (28.75 percent), and the Bank had a second lien on these shares. At the foreclosure sale on February 16, 1966, the Bank purchased the 23,125 shares, its first lien interest, for $231,000.

In Special Issue no. 2, the jury found that the value of the 23,125 shares of Maxey Lumber Company on the date of foreclosure was $689,541.22. The Bank raises the same challenges to this finding that it made with regard to the finding about the value of Plaza’s assets. We reject their argument here for the same reasons discussed earlier in this opinion. Osen-baugh’s appraisal of Maxey Lumber using the capitalization of income approach was competent evidence for the jury to consider. Southwestern Bell Telephone Company v. Ramsey, 542 S.W.2d 466 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.). The Bank’s points of error challenging the answer to Special Issue no. 2 are overruled.

Plaintiffs’ points of error 5 through 12 contend that the trial court erred in failing to include various items in the total recovery. We will address these issues separately.

The Bank held a second lien on Maxey’s 28.75 percent interest in the Lumber Company stock. (Harold Blank held the first lien on this interest.) After foreclosure, the Bank and Harold Blank agreed to reorganize the stock structure of Maxey Lumber. They agreed to value the 28.75 percent interest at $13.00 per share and divided the stock between them. The Bank received 3,519 shares, which they applied to Maxey’s indebtedness at the rate of $13.00 per share; the remaining shares were applied to the first lien debt owed to Blank. On appeal, plaintiffs contend that they should be credited at the rate of $29.82 per share, the value the jury placed on the 46.25 percent interest in the Lumber Company. We overrule this argument for the reason that Defendants’ Exhibit no. 56 shows Max-ey’s consent to the reorganization and valuation of the stock. Maxey signed the memorandum sent to him by Harold Blank asking for his consent to the proposed reorganization and is contractually bound by the terms of the agreement. Maxey received consideration for his promise to accept reorganization, i. e., a credit against his debts to Blank and the Bank.

Plaintiffs contend that the trial court erred in refusing to submit Requested Special Issue no. 5, concerning the market value of Maxey’s personal property — horses, cattle, feed and equipment located on the Plaza Building Corporation ranches and feedlot. The cattle were sold at a private sale and the feedlot equipment was sold at auction. Plaintiffs’ Requested Special Issue no. 5 asked the jury to find “the fair market value of the cattle, horses, feed, equipment, and other personal property belonging to Homer G. Maxey personally on February 16, 1966, over which the Bank exercised dominion and control and subsequently or otherwise disposed of.” The trial court correctly rejected this special issue, because there were no requested issues concerning lack of good faith in disposing of these assets. Issues inquiring whether the Bank acted in good faith and whether a lack of good faith caused the sale of the collateral for inadequate consideration were necessary to lay the predicate for recovery of damages. Plaintiffs submitted such issues concerning the sale of the stock in the two closely held corporations, but failed to do so on the question of Maxey’s personal property. In the absence of these issues, the trial court correctly denied Plaintiffs’ Requested Special Issue no. 5.

Plaintiffs further claim that they did not receive value for a trailer house and office equipment which were allegedly “taken” by the Bank after foreclosure. There is no evidence in the record that the Bank sold or otherwise disposed of either the trailer house or office equipment. Nor is there any evidence that either the trailer house or office equipment were listed on any collateral security agreement. In the absence of any evidence concerning these chattels, we hold that the trial court correctly refused to award the value of these assets to plaintiffs.

Several of Maxey’s insurance policies had been assigned to the Bank pursuant to collateral security agreements. Plaintiffs contend that they never received credit for the cash value of the policies after foreclosure. There is no evidence that the Bank ever withdrew the cash value of the policies. Apparently, the cash value was used to keep the policies in force for as long as possible. As assignee of the policies, the Bank was not obligated to pay the premiums and was entitled to allow the insurer to use the cash value to keep the policies in force. Appleman on Insurance (1943), § 1315, p. 536; Mondon v. Patterson National Bank, 127 N.J.L. 560, 23 A.2d 593 (N.J.Ct.App.1942).

In three points of error, plaintiffs argue that the trial court erred by including certain debts of Plaza as liabilities because the Bank never paid these debts. This contention has no bearing on the central issue in this case—the value of Plaza stock, determined by subtracting the total liabilities from the total assets on the date of foreclosure. Furthermore, plaintiffs did not request a jury issue concerning these debts. In the absence of a requested issue, plaintiffs have not preserved error and these points of error are overruled. Tex.R.Civ.P. 273, 276; Meehan v. Pickett, 463 S.W.2d 481 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

Plaintiffs challenge the refusal of the trial court to submit to the jury the question of malice and exemplary damages. They contend that the Bank may be held liable for exemplary damages even though its officers and employees have been judicially exonerated from liability. Plaintiffs rely on the holding of the Supreme Court in Maxey v. Citizens National Bank of Lubbock, 507 S.W.2d 722 (Tex.1974) that the Bank had assumed a contractual obligation to exercise good faith and fairness in the sale of the foreclosed chattel which was distinct and separate from the duties of the Bank’s individual officers and employees to plaintiffs.

Exemplary damages are awarded to a party who has been injured as a result of wanton or malicious action. Ware v. Paxton, 359 S.W.2d 897 (Tex.1962). The general rule is well established that a corporation can be liable for exemplary damages only when its agents have acted with malice:

“The entity of a corporation is a mere concept resting solely in legal fiction. A corporation is an artificial being, "without mind, soul, heart or life; it may not conceive a purpose, form, or execute a plan, or do an act except through the agency of men or women. Whatever those men and women, acting singly or in confederation, may do in its name or behalf, at least within the general scope of employment, represents it in action in the achievement of the charter purpose.” Chronister Lumber Company v. Williams, Tex. Comm’n App., 116 Tex. 207, 288 S.W. 402, 403.
The corporation, independent of its officers, the president and vice president in this case, could entertain no malice or perform any willful act, and, as the jury found that such officers did not act willfully, maliciously, and without probable cause, this assignment is sustained.

Security State Bank v. Spinnler, 55 S.W.2d 128 (Tex.Civ.App.—Amarillo 1932, writ dism’d).

The vitality of the Spinnler holding was affirmed in Mayflower Investment Company v. Stephens, 345 S.W.2d 786, 793 (Tex. Civ.App.—Dallas 1960, writ ref’d n. r. e.):

Of course, a corporation may become liable for exemplary damages, but this can arise only by imputation to it of the malice of some individual because the corporation is incapable of feeling and cannot be said to have acted with malice except by imputing to it the malice of some natural person related to it as agent acting for the corporation.

The individual agents and officers of the Bank were granted instructed verdicts in the first trial of this case. Plaintiffs did not appeal from the instructed verdicts in favor of the individual defendants. Therefore, under the authority of Spinnler and Stephens, the Bank cannot be liable for exemplary damages. We conclude that the trial court properly refused to submit to the jury the question of exemplary damages.

In view of our holding that exemplary damages will not lie in this case, we overrule plaintiffs’ points of error contending that the trial court erred in overruling plaintiffs’ post-trial motion to sever and order a separate new trial solely on the issue of exemplary damages.

Plaintiffs challenge the refusal of the trial court to award prejudgment interest on the amount of actual damages determined by the jury. Interest, as damages, may be allowed upon unliquidated demands arising either out of breach of contract or tort. When “the measure of recovery is fixed by the conditions existing at the time that the injury is inflicted, the person entitled to recover has also the right to have compensation for the detention of the money to which he is entitled by reason of the wrong done to him.” Watkins v. Junker, 90 Tex. 584, 40 S.W. 11,12 (1897). The underlying rationale of that case is that a party is entitled to be compensated for the detention of his money or property. This equitable principle was recently reaffirmed in Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978).

The relevant consideration in permitting the award of prejudgment interest is whether the measure of recovery (not necessarily the amount) is fixed by conditions existing at the time the claim arose. Davidson v. Clearman, 391 S.W.2d 48 (Tex.1965); Metal Structures Corporation v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex. Civ.App.—Amarillo 1971, writ ref’d n. r. e.); City of Ingleside v. Stewart, 554 S.W.2d 939 (Tex.Civ.App.—Corpus Christi 1977, no writ). If damages are ascertainable by known standards of value and accepted rules of evidence, prejudgment interest is allowable. Tennell v. Esteve Cotton Company, 546 S.W.2d 346 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.); Ambox, Inc. v. Stewart & Stevenson Services, Inc., 518 S.W.2d 428 (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n. r. e.). Prejudgment interest is allowable when the precise dollar amount of damages is not ascertained short of jury verdict. Cage Brothers v. Cage, 382 S.W.2d 169 (Tex.Civ.App.—San Antonio 1964, writ ref’d n. r. e.) (fair rental value of equipment); Melody Home Manufacturing Company v. Morrison, 502 S.W.2d 196 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n. r. e.) (damages based on the difference between the value of a new mobile home had it been fit for its intended purpose, and the actual market value of the mobile home as received in defective condition).

In the instant case the measure of recovery — the value of the assets minus the total liabilities — was fixed for purposes of determining actual damages as of the date of the injury, February 16,1966. Additionally, the underlying rationale for awarding prejudgment interest is applicable to the facts at bar. We hold that the trial court erred in refusing to award prejudgment interest on the amount of actual damages determined by the jury.

Having determined that this is a proper case for the award of prejudgment interest, we consider whether interest should be awarded at the rate of six percent or ten percent. Courts have awarded ten percent prejudgment interest, the highest rate allowed by law, only in cases involving the breach of a fiduciary obligation. Van Orden v. Pitts, 206 S.W. 830 (Tex.Comm’n App.1918, holding approved); Anderson v. Armstrong, 132 Tex. 122, 120 S.W.2d 444 (Tex.Comm’n App.1938, opinion adopted). These cases are distinguishable from the instant situation, wherein the Bank had a contractual obligation to exercise good faith. We do not find authority for awarding ten percent interest for breach of such a contractual obligation. We therefore hold that plaintiffs are entitled to recover six percent prejudgment interest on any recovery of actual damages.

In summary we hold that the jury finding that the liabilities of Plaza were $2,562,-475.69 is against the great weight and preponderance of the evidence and that the trial court erred in substituting its own finding for the jury answer. The trial court properly refused to submit the question of exemplary damages, but erred in denying plaintiffs recovery of prejudgment interest.

The foregoing holdings are dispositive of the appeal. We therefore do not reach the remaining points of error.

The judgment of the trial court is reversed and the cause remanded for a new trial.

DODSON, J., not participating.

      . In a prior trial of this cause against the Bank and certain individual Bank officers and agents, plaintiffs were granted a judgment against the Bank for actual and exemplary damages. At the close of the plaintiffs’ evidence, all defendants except the Bank were granted instructed verdicts. Judgment was entered on the jury verdict against the Bank for $913,378.53 actual damages and $1,500,000 exemplary damages. On appeal, the judgment against the Bank was reversed and remanded because of the insufficiency of the evidence to support certain material jury findings. Citizens National Bank of Lubbock v. Maxey, 461 S.W.2d 138 (Tex.Civ. App. — Amarillo 1970, writ ref’d n. r. e.). Plaintiffs did not appeal from the judgments in favor of the individual defendants.
      Upon remand, the trial court granted the Bank’s motion for summary judgment on the grounds that the plaintiffs’ cause of action was barred by the doctrine of res judicata because all of the individual officers of the Bank had been exonerated at the first trial. This Court affirmed the summary judgment. Maxey v. Citizens National Bank of Lubbock, 489 S.W.2d 697 (Tex.Civ.App. — Amarillo 1972). The Texas Supreme Court reversed the summary judgment and remanded the cause for a new trial on the grounds that the Bank had an independent contractual obligation to exercise good faith in the sale of the foreclosed collateral and owed the plaintiffs duties which were separate and distinct from the duties owed the plaintiffs by the Bank’s individual officers and agents. Maxey v. Citizens National Bank of Lubbock, 507 S.W.2d 722 (Tex. 1974).