author: ROBERTS, Judge.

text:
    George Robert BLOTT, Appellant, v. The STATE of Texas, Appellee.
    Nos. 58003 to 58006.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 3, 1979.
    Rehearing En Banc Denied Nov. 7, 1979.

      Samuel H. Bayless, Sol Casseb, III, San Antonio, for appellant.
    Joe Grady Tuck, Dist. Atty. and Jack R. Collins, Asst. Dist. Atty., Kerrville, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from one conviction for aggravated assault and three convictions for injury to a child. The cases were consolidated for trial and the jury found the appellant guilty of each offense; punishment was assessed by the court in each case at nine years’ confinement, to run concurrently.

Besides challenging the sufficiency of the evidence in each case, the appellant contends that the court’s instructions to the jury applying the law to the facts in the three injury to child cases were fundamentally erroneous and that these fundamentally erroneous charges “tainted” the court’s instructions applying the law to the facts in the aggravated assault case. In a related ground of error, the appellant also contends that the trial court erred by granting him a new trial in the three injury to child cases because the court was without jurisdiction to do so. The appellant additionally complains that he was substantially prejudiced by having a judge other than the trial judge rule upon his motion for reduction of sentence and renewed application for probation; he further complains of the prosecutor’s argument at the guilt-innocence phase of the trial, the admission of certain photographs, and the ineffectiveness of trial counsel. We affirm.

The State presented evidence that the appellant was driving south in the northbound lane of Interstate Highway 10 near Boeme when he collided with a car driven by Mary Ann Warzecha and occupied by her and her three children. As a result of the collision, the appellant and the complainant suffered serious bodily injury as that term is defined by our Penal Code. See V.T.C.A., Penal Code, Section 1.07(34). The State also introduced evidence of the appellant’s prior conviction for the felony offense of driving while intoxicated and evidence that those who assisted the appellant at the time of the accident smelled the strong odor of alcohol about the appellant’s person. The indictment for aggravated assault and those for injury to a child each alleged that the appellant acted “recklessly.” In its charge to the jury, the court gave separate written instructions in each case applying the law to the facts. In the three injury to child cases, the court authorized the jury to convict the appellant if it found that he “intentionally or knowingly, or with criminal negligence (emphasis supplied), engage^] in conduct that caused serious bodily injury to” each of the three children. Thus, the court, in its instructions to the jury in the injury to child cases, enlarged upon the allegations of the indictment and authorized conviction upon proof different from and less than that required to prove the allegations in those indictments. This was fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979).

By an order entered March 7, 1978, the court recognized that its instructions to the jury with respect to the injury to child cases were fundamentally erroneous and granted a new trial in each of those cases. By another order entered March 9, 1978, the trial court approved the record and directed the clerk to transmit “the record and briefs in this cause to the Court of Criminal Appeals.”

Initially, the appellant complains that the trial court was without jurisdiction to grant new trials in each of the injury to child cases. We disagree. Article 40.09(9), V.A.C.C.P., provides, in pertinent part, that

“Within 30 days after approval of the record by the court, the defendant shall file with the clerk of the trial court his appellate brief . . . .”

Article 40.09(10) provides that the State’s brief shall be filed with the clerk of the trial court 30 days after the appellant’s brief has been filed. At that time “[i]t shall be the duty of the trial court to decide from the briefs and oral arguments, if any, whether the defendant should be granted a new trial . . . . This duty shall be performed within the period of 30 days immediately after the State’s brief is filed . .” or within the period of 30 days after the last day on which the State’s brief could be timely filed. In the present case, both parties filed their appellate briefs prematurely, that is, prior to the approval of the record by the trial court. (We note that the “original brief for appellant” was filed in the trial court on November 29, 1977, and that the State’s brief was filed January 30, 1978, some 38 days prior to the trial court’s approval of the record.)

The trial court in the present case had jurisdiction to grant the appellant a new trial in each of the injury to child cases because, as we have held in the past, the trial court retains control over the case until the record reaches this Court. Yates v. State, 557 S.W.2d 115 (Tex.Cr.App.1977). Accordingly, we hold that this Court is without jurisdiction to consider the appeals in the three cases of injury to a child.

The appellant argues that the court’s fundamentally erroneous charge in the injury to child cases “tainted” the court’s instruction to the jury in the aggravated assault case which, we observe, properly conformed to the allegations of the indictment. Without conceding that we fully understand the appellant’s argument in this respect, we cannot perceive how an otherwise proper instruction to the jury in the aggravated assault case could be tainted by the fundamentally erroneous instructions given to the jury in the remaining three cases of injury to a child. We find no merit in the appellant’s argument that the charge as a whole permitted the prosecutor to argue that the appellant should be found guilty in each case if the jury found that the appellant acted with criminal negligence alone. We hold that this improper argument, unobjected to at trial, was not so inherently prejudicial as to deprive the appellant of a fair and impartial trial in light of the trial court’s affirmative instruction to the jury in the aggravated assault case to convict the appellant if it found that he committed the offense “recklessly.” The appellant’s first contention is overruled, as is his assignment of error relating to the prosecutor’s statements in closing argument. The appellant did not object at trial and no error was preserved.

The appellant next contends that he was substantially prejudiced by having a judge other than the trial judge hear his “motion for reduction of sentence.” The appellant was formally sentenced on June 17,1976 by Judge Charles Sherrill, the case having been tried before Judge Magus Smith.

On May 13,1977 a post-trial hearing was held on appellant’s motion for reduction, amendment and correction of sentence, and renewed application for probation. This matter was heard before Robert R. Barton, the duly elected judge of the 216th Judicial District, who denied relief. Appellant’s counsel contends that he was prejudiced by the denial of his request to have the matter heard before Judge Sherrill.

That one district judge may sit in place of another is beyond dispute. V.A. T.S., Article 1916. Such a substitution is reviewable only upon a showing of an abuse of discretion. Hogan v. State, 529 S.W.2d 515, 517 (Tex.Cr.App.1975). The record reflects that, in fact, Judge Sherrill had ruled adversely to appellant on the very same motions at the sentencing hearing of June 17, 1976. Furthermore, Judge Barton was presiding in a matter properly before the court to which he had been elected. No abuse of discretion is shown and no prejudice to the appellant appears. This ground of error is overruled.

Appellant next contends that there was insufficient evidence to support his conviction for aggravated assault.

Hubert Hohmann testified that, shortly prior to the collision, he saw the appellant driving northbound on Interstate Highway 10 at “a very rapid speed” and in an erratic and dangerous fashion. After appellant’s ear passed the witness, the witness observed it run off the traveled portion of the highway and spin onto the grass median. The witness stopped to offer assistance but appellant waved him off. Appellant was then observed driving back in the direction from which he had come, for a short distance, before turning and continuing in a northbound direction. Hohmann was so impressed by what he characterized as the appellant’s reckless driving that he left the interstate highway and drove through the town of Boerne seeking “a lawman of some sort” to “get him off the road.”

Britt Messmann testified that, at about 8:10 p. m. of the evening of June 3,1975, he was proceeding south on Interstate Highway 10, approaching the city limits of Boerne, when he saw the appellant’s car also southbound but in the northbound speed lane of Interstate Highway 10. His testimony was to the effect that he, Mess-mann, was driving at “about 70 miles per hour,” but that the appellant’s car was traveling even faster because it appeared to be “pulling away” from him. The witness testified that he saw appellant’s car hit the complainant’s car head-on, some ten or fifteen seconds after he first observed appellant’s car driving southbound in the northbound lane. It was agreed by all witnesses that at the time the collision occurred visibility was excellent; that, in fact, it occurred in very bright sunlight.

Appellant testified that, at the time of the crash, he was traveling from Kerrville to San Antonio. He stated that he could not remember anything of this journey after he reached Comfort. Highway Patrolman Joe Montgomery of the Department of Public Safety testified that the distance from Comfort to the point of impact was approximately fourteen miles. The witness Hohmann testified that he observed the appellant speeding and driving erratically in a northbound direction, that is to say away from San Antonio and toward Kerr-ville, shortly before the accident. Appellant testified that he had no memory of driving northbound at any time. Neither could appellant remember driving southbound in the northbound lane immediately prior to the crash.

There is a suggestion in the record that appellant may have been drinking prior to the collision. The witnesses Messmann and Daly testified to the distinct odor of alcohol on appellant’s breath at the scene of the crash. Appellant, however, steadfastly denied that he had been drinking. A prior conviction for the felony of driving while intoxicated was introduced to impeach him and it was shown that he was on probation from this conviction.

It does not comport with reason that one could drive without being aware of it, in broad daylight, on the wrong side of what the record reveals to have been a flat stretch of freeway with an unobstructed view of the median and the opposite travel lanes. The fact finder could readily infer, under such circumstances, where the highway median and opposite travel lanes lay to the driver’s right, that he was aware of the risk created by his conduct and chose to ignore it. Moreover, by his own admission, appellant claimed to have driven approximately fourteen miles on such highway with no memory of having done so. The jury might properly reach this conclusion even had appellant attributed his conduct to intoxication arising from the consumption of alcohol, which, as we have noted, he denied.

Voluntary intoxication is no defense to the commission of a crime. V.T.C.A., Penal Code, Section 8.04(a). Accordingly, it cannot negate the existence of an element of an offense. The State alleged an aggravated assault by the reckless causation of serious bodily injury, and so was required to show that appellant was aware of the risk which his conduct created. V.T.C.A., Penal Code, Section 6.03(c). Whether the jury believed that appellant’s loss of memory was caused by intoxication, as the State attempted to show, or whether they believed appellant’s version of the facts, the jury might properly have found that all elements of the offense were proven.

There was sufficient evidence from which a reasonable jury could have found that appellant’s conduct was of the type denounced by our aggravated assault statute, V.T.C.A., Penal Code, Section 22.02. We hold that the evidence was sufficient to sustain the conviction for aggravated assault and overrule appellant’s contention to the contrary.

We next consider appellant’s point of error which complains of the introduction of photographs of the cars involved in the collision. Appellant contends that these photographs do not accurately portray the facts at the time of the collision, since the photographs were made after the cars had been moved from the scene. The witnesses Daly and Montgomery testified contrary to appellant’s contention. The photographs were admissible. Appellant’s contention is without merit.

Lastly, we consider appellant’s point of error which complains that he was denied the effective assistance of counsel. The standard for determining the effectiveness of counsel is whether or not such assistance was reasonably effective. This Court will not second-guess through hindsight the strategy of counsel at trial nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Judging, as we must, the quality of appellant’s representation by viewing it in its totality, we cannot say that he was denied the effective assistance of counsel. No error is shown.

The appeals from convictions for injury to a child are dismissed. The judgment of conviction for aggravated assault is affirmed.

      . We note that IH-10 runs generally in an east-west direction but the evidence adduced at trial indicates that as to all points involved here the highway runs generally north-south.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Ex parte John Alvin McNEIL.
    No. 54451.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

The petitioner now has pending in the United States District Court for the Southern District of Texas in Civil Action No. H-79-393 styled John Alvin McNeil, Petitioner v. W. J. Estelle, Jr., Director, Texas Department of Corrections, Respondent, an application for writ of habeas corpus seeking the same relief that he seeks here. Since that court has entertained and retained jurisdiction of the matter we dismiss this application as we did in Ex parte Powers, 487 S.W.2d 101 (Tex.Cr.App.1972) and Ex parte Green, 548 S.W.2d 914 (Tex.Cr.App.1977). See also Galtieri v. Wainwright, 582 F.2d 348 (5th Cir. 1978).

It is so ordered.


author: CLINTON, Judge.

text:
    Alfred WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 58270.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 24, 1979.

      Larry Warner, Amarillo, for appellant.
    Jimmy F. Davis, Dist. Atty., Dimmitt, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for aggravated assault on a peace officer in which the jury assessed appellant’s punishment at confinement in the Texas Department of Corrections for a term of seven years and six months.

Appellant presents two grounds of error for our consideration contending that the State failed to prove that the complaining witness was a duly constituted peace officer under the ambit of Article 6869, V.A.T.S. and further, that V.T.C.A. Penal Code, § 22.02(a)(2) denominating the offense of aggravated assault on a peace officer as a third degree felony, is violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We overrule these contentions and, accordingly, affirm the judgment.

Appellant was taken into custody by Deputy Sheriff Granville Martin on the evening of July 17, 1976 after Martin observed him in an apparently intoxicated state. Martin placed appellant in his patrol car bearing the insignia of the Castro County Sheriff’s Department for the ride from Hart to Dim-mitt. En route, Martin testified, appellant became belligerent and began using a great deal of obscenity in the presence of Martin’s wife, who was also riding in the vehicle. When Martin cautioned appellant to have some respect for his wife by not being profane, appellant began punching Martin as the latter was attempting to operate his vehicle. Appellant then let himself out of the patrol car [he was not handcuffed] and took flight. After stopping the patrol unit, Martin pursued appellant on foot for some distance, recounting that appellant yelled that the only way he [appellant] would stop would be if he was shot. Martin then discharged his service revolver, wounding appellant, and taking him into custody.

In his first ground of error, appellant contends that the State failed to adequately prove that the complaining witness, Deputy Sheriff Martin, was in fact a duly constituted peace officer. Specifically, appellant contends that the State’s proof was insufficient compliance with Article 6869, V.A. T.S. in that:

1. State’s Exhibit 3, Martin’s deputation card does not contain the official oath, is not a subscription to the official oath by the purported deputy, and contains no certificate of an officer authorized to administer an oath to the effect that he had so administered an oath;
2. The bond executed by Martin does not contain the official oath, is not a subscription to the official oath by the purported deputy and contains no certificate of an officer authorized to administer oaths to the effect that he had so administered an oath; and
3. Martin’s appointment and oath were not recorded in the office of the County Clerk.

The record below evidences that Martin was a deputy sheriff on the night in question and had been employed in that capacity for over twenty years in Castro County. Martin testified that he was dressed in his deputy’s uniform replete with badge and was driving a patrol vehicle with emergency lights and the insignia of the Castro County Sheriff’s Department. Ms. Zonell Maples, the District/County Clerk for Castro County testified that Martin had filed a bond in her office as required by Article 6869, supra, and that the bond was signed by Martin and that the official oath of office was endorsed on that bond.

Under the facts and circumstances presented, we need not reach appellant’s contention that Martin failed to comply with the letter and tenor of Article 6869, supra, as we believe that the evidence below clearly showed that Martin was a de facto deputy sheriff on the night in question as that term was defined in Weatherford v. State, 31 Tex.Cr.R. 530, 21 S.W. 251 (1893) from other sources:

A de facto officer is one who has the reputation of being the officer, and yet is not a good officer in point of law; in other words, the de facto officer is one who acts under color of a known and valid appointment, but has failed to conform to some precedent requirement, as to take the oath, give a bond, or the like.

The trial court required the jury to find, beyond a reasonable doubt, that Martin was a deputy sheriff; it did, and the evidence is sufficient to support its finding. Burkhardt v. State, 83 Tex.Cr.R. 228, 202 S.W. 513, 514-515 (1918); see Broach v. Garth, 50 S.W. 594 (Tex.Civ.App.1899). Accordingly, the trial court did not err in overruling appellant’s motion for an instructed verdict contending otherwise. Freeman v. State, 556 S.W.2d 287, 304 (Tex.Cr.App.1977). Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that V.T.C.A. Penal Code, § 22.02(a)(2) denominating the offense of aggravated assault on a peace officer as a third degree felony is violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The thrust of appellant’s contention is that the statute does not advance a “compelling governmental interest” by increasing the range of punishment for an otherwise misdemeanor offense merely because the victim is a peace officer. We believe this contention is wholly without merit. A citizen has not been endowed with a constitutional right to assault anyone, much less a peace officer, so a “close scrutiny” review of the statute is not demanded. We are satisfied that there is in fact a rational connection or nexus between the legislative goal of insuring safety of its peace officers and the means chosen to effectuate this end.

Insofar as the contention complains of unreasonable classification, the longstanding general constitutional rule is that a state, in exercise of its discretionary police power, may make classifications as to persons amenable to punishment as long as the classifications are reasonable and the statute bears equally on all in the same class, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 465, 67 S.Ct. 374, 91 L.Ed. 422 (1947), rehearing denied 330 U.S. 853, 67 S.Ct. 673, 91 L.Ed. 1295 (1947), 16A C.J.S. Constitutional Law § 563a, Criminal Liability, p. 519, and it has been held that conversion of an offense into a more serious offense solely because the victim is a police officer is not violative of equal protection guarantees, People v. Hanson, 53 Ill.2d 79, 289 N.E.2d 611, 613 (Ill.1972) cert. denied 411 U.S. 937, 93 S.Ct. 1916, 36 L.Ed.2d 398 (1973); People v. Prante, 177 Colo. 243, 493 P.2d 1083, 1086 (1972). This Court has held invulnerable to an equal protection challenge a state statute that upgraded such misdemeanor offenses as assault and aggravated assault to felonies when inflicted upon a narrowly prescribed class of victims in the course of a labor dispute, Ivey v. State, 157 Tex.Cr.R. 548, 247 S.W.2d 105, 109 (1952), appeal dismissed (for the want of a substantial federal question) 344 U.S. 801, 73 S.Ct. 16, 97 L.Ed. 625 (1952); Ex parte Frye, 143 Tex.Cr.R. 9, 156 S.W.2d 531, 534 (1941).

We cannot discern any equal protection violation in an exercise of legislative power that categorizes peace officers as a class of assaulted victims with respect to which a higher penalty is imposed for an offense committed against one of the class by a person who is otherwise legally responsible for his criminal conduct and, accordingly, hold that V.T.C.A. Penal Code, § 22.-02(a)(2) does not offend the Equal Protection Clause of the Fourteenth Amendment or any provision of the Bill of Rights in the Texas Constitution. The second ground of error is overruled.

Finding no reversible error, we affirm the judgment of conviction.

      . Article 6869, supra, provides in pertinent part:
      “Sheriffs shall have the power, by writing, to appoint one or more deputies for their respective counties, to continue in office during the pleasure of the sheriff, who shall have power and authority to perform all the acts and duties of their principals; and every person so appointed shall, before he enters upon the duties of his office, take and subscribe to the official oath, which shall be indorsed on his appointment, together with the certificate of the officer administering the same; and such appointment and oath shall be recorded in the office of the County Clerk and deposited in said office.”

      . Actually, we observe from a copy of the bond that is of record, an oath, as such, is not on or with the bond; apparently what Maples had in mind was the condition of the bond to the effect that Martin “shall well, truly and faithfully perform all official duties now required of him by law and shall . . . well, truly and faithfully execute and perform all the duties of such office required by any law to be enacted . . .” The bond, dated May 28, 1957, is signed by Martin and his surety, but not sworn to. The obligee named in the bond is the Sheriff of Castro County.

      . Appellant’s contention that the initial arrest was unlawful is similarly without merit. Martin testified that he observed appellant in an intoxicated condition in a public place and further, that he had received information that appellant had engaged in throwing beer cans through the window of a Mrs. Scott and that appellant had allegedly pulled a knife on Mrs. Scott’s daughter. It is axiomatic that a peace officer has the right to make a warrantless arrest of one found to be intoxicated in a public place. Chambler v. State, 416 S.W.2d 826 (Tex.Cr.App.1967); Johnson v. State, 397 S.W.2d 441 (Tex.Cr.App.1965); Rent v. State, 160 Tex.Cr.R. 326, 268 S.W.2d 674 (1954).

      . State v. Wehde, 258 N.W.2d 347, 351-352 (Iowa 1977). If a statutory inhibition does not implicate some personal constitutional protection, its validity is determined by the traditional rational-basis test. See, e. g., Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975).


text:
    Ex parte Dean BUCHANAN.
    No. 62653.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 24, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is a post-conviction habeas corpus proceeding pursuant to Article 11.07, V.A.C. C.P. Petitioner was convicted of the offense of murder on May 14, 1969 and on appeal, the judgment was affirmed. Buchanan v. State, 453 S.W.2d 479 (Tex.Cr.App.1970). The petitioner asserts that the judgment of conviction is void in that he was not provided an examining trial as required by Article 2338-1, § 6(j), Y.A.T.S. (repealed) before the indictment was returned by the grand jury. For reasons more fully developed below, we agree with petitioner’s assertion and, accordingly, grant the relief requested.

On March 11, 1968 petitioner, a juvenile, was certified to be tried as an adult and the cause was transferred to the Criminal District Court of Tarrant County for trial. On original submission to this Court, we remanded the proceedings to the trial court so that specific findings could be made regarding whether petitioner was granted an examining trial and if not, whether a waiver of said examining trial, was in fact, made. In his supplemental findings of fact, the trial court has found that the record does not show that petitioner was granted an examining trial before the grand jury returned the indictment against him on May 21, 1968, and the record does not show that an examining trial was waived. See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

A majority of this Court has held that absent a waiver made pursuant to V.T. C.A. Family Code, § 51.09(a), the failure to afford a juvenile who has been certified as an adult an examining trial before he is indicted renders the indictment void. White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979).

It is, of course, well settled that a void indictment may be successfully attacked in a collateral proceeding. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Ex parte Legg, 571 S.W.2d 930 (Tex.Cr.App.1978). Petitioner is, therefore, entitled to relief.

Accordingly, the writ is granted, the conviction is set aside and the indictment in Cause No. C-3-343 is dismissed. Therefore, petitioner is released from custody and every manner of restraint in his personal liberty as a consequence of the conviction. The Clerk of this Court is directed to forward a copy of this opinion to the Texas Department of Corrections.

It is so ordered.

      . We note that the State has conceded that, under the authority cited herein, petitioner is entitled to the relief requested.

      . Articles 11.07 and 11.64, V.A.C.C.P.; Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977).


author: ODOM, Judge.

text:
    James Floyd ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 58371.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 24, 1979.

      Larry E. Meyer, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Connie B. Williams, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, TOM G. DAVIS and CLINTON, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for burglary of a building with intent to commit theft wherein punishment was assessed at fifteen years.

In his first of two grounds of error, appellant contends the trial court erred in denying his written request to charge the jury on the law of circumstantial evidence. Appellant was convicted of burglarizing a U-Totem convenience store in the early morning hours of July 26,1975. The record reflects that two Houston police officers responded to notice of an alarm coming from the store at about 2:10 a. m. As the officers were arriving at the store, they observed appellant walking away from the store at a short distance from a broken window. He was carrying a jar of pennies and two cartons of cigarettes. The jar of pennies was later identified by the store manager as having come from the store. Other items, also identified by the store manager, were found outside the store directly in front of the broken window. The store manager testified that when he left the store at approximately 1:15 a. m. on the date in question, he had locked the store and the glass window was intact.

Appellant argues that a charge on circumstantial evidence was required because all the evidence offered by the State to prove that appellant actually entered the store with intent to commit theft was circumstantial. We disagree for the reason that the facts proven were so closely related to the main fact to be proved as to be the equivalent of direct testimony, thus rendering unnecessary a charge on circumstantial evidence. See Ales v. State, Tex.Cr.App., 587 S.W.2d 686 (No. 57,658, 10/17/79); Coleman v. State, Tex.Cr.App., 530 S.W.2d 823; Riggins v. State, Tex.Cr.App., 468 S.W.2d 841. The first ground of error is overruled.

Appellant further contends that the trial court erred in failing to submit his requested written instruction to the jury that each element of the offense must be proved beyond a reasonable doubt. The court did charge generally on the presumption of innocence and reasonable doubt, as well as in the negative for purposes of acquittal. Reasonable doubt is given in the application of the law to the facts, again with a statement of the charge in the negative. Also, the court charged that the burden of proof was on the State to prove appellant’s guilt beyond a reasonable doubt. The charge was sufficient. The ground of error is overruled.

Finding no reversible error, the judgment is affirmed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Anthony C. AGUILAR, Appellant, v. Joseph (Sib) ABRAHAM, Jr., Appellee.
    No. 6775.
    Court of Civil Appeals of Texas, El Paso.
    April 4, 1979.
    Rehearing Denied May 2, 1979.
    Herbert Ehrlich, El Paso, for appellant.
    Merkin, Gibson & Hines, William L. Mer-kin, Charles Louis Roberts, El Paso, for appellee.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a breach of contract suit between two attorneys. In open court, the parties announced an agreement to submit their dispute to arbitration; the Court incorporated this agreement into an order; arbitrators were appointed and they subsequently made their award; the Court reduced the arbitration award to judgment, and from that judgment this appeal is taken. We affirm.

Through a series of letters, the parties agreed to practice law together beginning September 1, 1972. The nature and details of their agreement was an issue in the trial Court, and a principal issue was whether or not they were partners or whether the employee/employer relationship existed. The arrangement ended in February of 1975, after which this suit was brought by Appel-lee against Appellant alleging various breaches of their contractual arrangement. The parties agreed to submit the controversy to arbitration, and the Court adopted this agreement in an order dated November 25, 1975. Appellant now questions the validity of that arbitration agreement, or order of the Court, and the Court’s refusing his request to withdraw from the arbitration arrangement and to dismiss such proceedings. We hold that the instrument was a valid and binding agreement.

The instrument in question is in the form and style of an order of the court and is designated as an order. The opening paragraph is as follows:

On the 14th day of November, 1975, came on to heard and considered the hearing requested by Plaintiff herein enjoining Defendant from dissipating any of the funds shown to be wrongfully collected by Defendant subsequent to February 28, 1975, and ordering Defendant to deposit such funds into a depository under the control of the Court and ordering Defendant to return enumerated files. Plaintiff appeared in person and with his attorney of record, WILLIAM L. MER-KIN. Defendant appeared in person and with his attorneys, MAX E. RAMSEY and DICK STENGEL. Prior to a hearing on said show cause hearing as stated above, the parties, by and through their attorneys, and with the express consent of both Plaintiff and Defendant, reached an agreement subject to the approval of the Court involving binding arbitration. In open Court, the parties announced that, subject to the approval of the Court, the parties had agreed on binding arbitration on the following terms and conditions, to wit: .

Then follow four legal-size pages setting forth the terms agreed upon in some eleven numbered paragraphs, and concluding that it was “SIGNED and ENTERED on this 25th day of November, A.D. 1975.” It is signed by the Judge, and approved “as to form” by each of the party litigants and their attorneys of record. The arbitrators found that Appellee was entitled to an $89,-382.37 judgment against the Appellant. Upon the Appellant’s motion to modify the award, it was reduced to $74,569.81, and judgment was rendered for that amount.

We overrule Appellant’s contentions as to the validity of the agreement. Article 224, Texas General Arbitration Act, Tex. Rev.Civ.Stat.Ann., provides for the validity of contracts of the above nature where they are entered into upon the advice of counsel as evidenced by the signature of counsel; but, Appellant urges that the agreement is invalid because under that Article there was a proviso that the General Arbitration Act will not apply to employer/employee disputes. There is another section entitled “Arbitration Between Employer and Employed” to cover such disputes, but there is nothing under that section or the General Arbitration Act which makes them exclusive. It has been held that arbitration proceedings outside of such section are not invalid; the same provision of Article 224 relied upon by Appellant also excludes controversies arising under contracts of insurance; the contention here held by Appellant was expressly denied, and the Court held that the statutory arbitration as to insurance was not exclusive but that the parties could agree on a common law arbitration. Carpenter v. North River Insurance Company, 436 S.W.2d 549 (Tex.Civ.App. — Houston [14th Dist.] 1968, writ ref’d n. r. e.). The Supreme Court expressly approved this holding in L. H. Lacy Company v. City of Lubbock, 559 S.W.2d 348 (1977). In that case, the Supreme Court said:

Furthermore, whether the parties had in view a statutory or a common law arbitration has been held immaterial if the proceedings could be upheld under either system. Forshey v. Railroad Co., 16 Tex. 516, 538 (1856); Bell v. Campbell, 143 S.W. 953, 955 (Tex.Civ.App. — Amarillo 1912, writ ref’d.).

In the case before us, the parties have set forth fully the terms of their arbitration agreement including a provision that the parties were bound by the Texas General Arbitration Act, Articles 224 to 238-6, “[e]xcept as stated herein . . . ” That “[e]xcept as stated herein” proviso is a complete contract with terms controlling the matters raised by Appellant; so, he really has no complaint of being bound by the Texas General Arbitration Act.

What the Supreme Court said in Lacy v. City of Lubbock, supra, is very applicable here:

The arbitration award in the present case is valid and enforceable under the common law as heretofore expressed by Texas courts. Under even the earliest Texas cases, once the parties to a contract had submitted their disputes to arbitration and an award had been made, the parties were bound by the award if no fraud, mistake, or misconduct was involved. [Cited authorities omitted.]

The parties entered into the agreement in open court and secured the Court’s approval of their agreement, so that it became an order of the Court and binding in that respect also; it was so held in Brown v. Eubank, 443 S.W.2d 386 (Tex.Civ.App. — Dallas 1969, no writ). Also, since it was entered into in open court in the course of trial, the agreement was a stipulation, binding on the parties in that respect. The agreement constitutes both a contract between the parties themselves and a contract between the parties and the Court, which the Court will enforce. 53 Tex.Jur.2d Stipulations sec. 1 at 313. It met the requirements of the Rules of Civil Procedure as being in writing and signed and filed with the papers as part of the record. Rule 11, Tex.R.Civ.P.

Some seven months after the arbitration had commenced, Appellant sought to withdraw. Paragraph 10 of the agreement provided that “[njeither party shall have the right to withdraw from arbitration from the time that this order is entered or have the right to withdraw for any reason.” In addition to that, an award had been made prior to the attempted withdrawal. Texas law is clear that there is no right to withdraw after an award has been made. Lacy v. City of Lubbock, supra.

As has been seen from the cases cited in this opinion, an arbitration award is binding. Additionally, in this case the parties provided that in their agreement:

Both parties expressly waive any further recourse of any type, and agree that said arbitration shall be fully binding upon both parties and that neither party shall appeal or have the right of appeal from the decision of the arbitrators.

It is settled law that a common law arbitration agreement may provide that there is to be no right of appeal. Ferguson v. Ferguson, 93 S.W.2d 513 (Tex.Civ.App. — Eastland 1936, writ dism’d). The right to appellate review may be waived by agreement. Johnson v. Halley, 8 Tex.Civ.App. 137, 27 S.W. 750 (1894, writ ref’d); Hefley v. Hugen, 56 Tex.Civ.App. 273, 120 S.W. 956 (1909, no writ); and a provision providing for waiver of right of appeal in arbitration proceedings is not against public policy. Ferguson v. Ferguson, supra. In fact, our Rules of Civil Procedure permit the parties by stipulation to dismiss an appeal after it is perfected. Rule 387a(b), Tex.R.Civ.P. Under the above quoted paragraph, Appellee would be entitled to have this appeal dismissed. However, because of the other matters passed upon, we will not dismiss the appeal, but will affirm the judgment of the trial Court.

The judgment of the trial Court is in all things affirmed.


author: O’QUINN, Justice.

text:
    The UNIVERSITY OF TEXAS SYSTEM, Appellant, v. Yvonne SCHIEFFER, Appellee.
    No. 12826.
    Court of Civil Appeals of Texas, Austin.
    April 11, 1979.
    Rehearing Denied Oct. 3, 1979.
    John L. Hill, Atty. Gen., David A. Talbot, Jr., Asst. Atty. Gen., Austin, for appellant.

      Broadus A. Spivey, Spivey & Grigg, Austin, for appellee.
   O’QUINN, Justice.

Yvonne Schieffer as an employee of The' University of Texas System brought this action seeking to recover under the Texas Workmen’s Compensation Law a lump sum award for total and permanent disability she alleged occurred on December 15, 1976, while working in the Language Laboratory at the University in Austin.

From a judgment in district court awarding Schieffer recovery of $29,244.64, including medical expenses, The University System has appealed and relies in the main on its contention that the injuries claimed by Mrs. Schieffer are not compensable under Article 8306, section 20, Texas Revised Civil Statutes Annotated.

The controlling issue is whether damage or harm caused by a repetitious mental traumatic activity, as distinguished from a physical activity, is compensable under the statute.

We regard the holding of the Supreme Court in the recent case of Transportation Insurance Company v. Maksyn, 580 S.W.2d 334, covering Session Feb. 28, 1979, as controlling under the facts of the present case. Accordingly, we will reverse the judgment of the trial court and will render judgment that Yvonne Schieffer take nothing by her suit.

Yvonne Schieffer at the time of trial in 1978 was 55 years of age, and had been employed about seven years at the University of Texas in Austin, where since the early part of 1972 she had worked in the Language Laboratory. Mrs. Schieffer testified that her supervisor in the Laboratory created a stressful situation in the office by speaking to her in a very loud and gruff tone of voice; that the supervisor would yell at her from time to time and on some occasions confused her by instructions she considered contradictory; but that the supervisor never directed profanities at her.

As plaintiff below, Mrs. Schieffer alleged that “On or about December 15, 1976 . [she] was subject to extreme stress of her job which was a producing cause of an esophageal spasm and a nerve-related disorder. Further . . . [she] has suffered as a result of the extreme stress related to her job an asthamatic [s/c] condition which has become uncontrollable.”

Plaintiff further alleged she “. would show that the trauma, injury and accidental injuries which Plaintiff complains of . was both an injury and an occupational disease as those terms are defined by sec. 20 of Article 8306, V.A.T.S., and included damage or harm to the physical structure of her body occurring as a result of repetition physical traumatic activities extending over a period of time and arising in the course of her employment, and that the date of the injury and cumulative injury, and the date her disability began was on or about December 15, 1976.” (Emphasis added)

In describing how her disability began on December 15, 1976, Mrs. Schieffer testified as follows under direct examination by her counsel at the trial:

“Q What happened to you on December 15, 1976?
A It was a workday, Wednesday or Thursday, I believe, and we had a part-time employ [s/c] in the office who didn’t have anything to do, and my job was just to sort of delegate the work load and organize it, so whatever had to be done, it took too long to explain to her, so I went to Mr. Stautzenberger [the supervisor] to see if he had anything for her to do that I usually did, and he said, yes, I have some tapes for her to mark, or something like that, and, so, I came back to my desk and at that time I realized that there was a sick leave report * * * that was due, and the time sheets had to be filed in a certain way to make up that sick leave report, so I went back to him — no. Then, I gave her the time sheets and told her to start refiling them, and I went back to him to tell him this, that I had remembered something that was of importance and priority and that I felt like it should be done, and he immediately had a very quick reaction and scowled and said not to tell him what to do, that he runs this office around here and that he will tell people what to do, but, again, it was iñ a yelling, screaming type manner, and it was sort of like there were straws and straws and straws and this was the final straw—
Q The final straw that did what?
A That just made me break down, and I realized I couldn’t — I couldn’t cope with it. I couldn’t handle it anymore, and I broke down and cried— or, no, tears came to my eyes and I went back to my desk and Maria said, why don’t you go back and try to explain to him, again, you know, that this is important, and I was reluctant because I didn’t know whether he would listen to me; and I went back to him, and he said — he started saying the same thing, again, and then, I left. I just ran out down the hall, as I remember, and, then, later, I think he realized that this was important and I think that report was taken care of; and, then, I went to the personnel office. I didn’t know what else to do. I needed help. I realized that I could no longer handle the situation as I had . . ..”

Mrs. Schieffer alleged, as indicated earlier, that she would show “the trauma, injury and accidental injuries” she complains of were “both an injury and an occupational disease” as defined in section 20 of Article 8306, “and included damage or harm to the physical structure of her body occurring as a result of repetitious physical traumatic activities extending over a period of time.” (Emphasis added) But Mrs. Schieffer’s testimony, relating her experiences with the supervisor on December 15, 1976, and purporting to identify the incident resulting in her injury, has no relation to “repetitious physical traumatic activities.” The events Mrs. Schieffer described as occurring on December 15, and other incidents leading up to that date, may have constituted mental traumatic activity, but there is no evidence in her testimony, nor is there other proof in the record, of any physical traumatic activity producing the harm or damage claimed as a basis for this suit.

In Transportation Insurance Company v. Maksyn, supra, Maksyn as the claimant alleged that the beginning date of his total incapacity was September 4,1974, (Tex.Civ.App., 567 S.W.2d 845, 846, col. 2), and Mak-syn testified that during the week prior to that date he worked more than 87 hours, and that on the evening of September 4 he began feeling bad, felt pressure in his head, and felt as if he were going to black out. (567 S.W.2d 847, col. 1). The Supreme Court, after reviewing the evidence relating to Maksyn’s claimed injury, stated: “. . . Maksyn’s situation was such that after forty-three years of work, he had succumbed to the pressure, mental strain, overwork, and exhaustion from his managerial duties which culminated in hypertension, nervousness, vertigo, anxiety depression, and disability to perform his work in publishing two newspapers a day. There was an abundance of evidence that mental stimuli produced Mr. Maksyn’s condition but no evidence that any physical traumatic activity produced it.”

The Supreme Court concluded that the settled law which had developed prior to the amendment of section 20 (Art. 8306) in 1971 remained intact with respect to injury, and under the settled law “an injury is defined and understood as one that is an undesigned, untoward event that is traceable to a definite time, place, and cause. In other words it is the result of an accident.” (Emphasis added)

The Court distinguished the injury in Bailey v. American General Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (1955), from the injury in Maksyn on the basis that on the occasion of the accident Bailey “became entangled in a cable and escaped death by falling onto the roof of a building.” The Court added, “Bailey recovered compensation on the basis of an accidental injury — not an occupational disease.”

Mrs. Schieffer, shortly after her verbal encounter with the supervisor on December 15, consulted a doctor specializing in internal medicine and gastrology concerning the esophageal spasm she experienced after the events of that day. The doctor testified that he diagnosed her condition as diffuse esophageal spasm, a disease of unknown cause, but described as a muscle disorder, which may be aggravated by stress, although stress itself is not a cause of the ailment.

Two psychologists who saw Mrs. Schief-fer professionally after the events of December 15 testified at the trial. One psychologist diagnosed Mrs. Schieffer’s problem as hysterical neurosis with a passive-aggressive personality trait; a person demanding support from her environment, which if not given, she interprets the environment as hostile; a personality inclined to be evasive and devious, with tendency to dramatize situations. The second psychologist who treated Mrs. Schieffer was of the opinion that Mrs. Schieffer received an injury December 15, resulting in loss of weight, tightened chest, loss of voice, esophagus spasms, and inability to cope with her job. This witness concluded that Mrs. Schieffer’s stress and stress-related condition were the result of an accumulated process.

The Supreme Court in Maksyn described the “line drawn by the Texas Legislature” in section 20 as “consistent with that drawn by the majority of jurisdictions in the country.” The Court quoted by illustration from an Arizona decision in which it was stated, “. . .a disabling mental condition brought about by the gradual buildup of emotional stress over a period of time and not an unexpected injury causing event is not compensable unless accompanied by physical force or exertion.” See Ayer v. Industrial Commission, 23 Ariz.App. 163, 531 P.2d 208 (1975).

After careful examination of the record in this appeal, we conclude that all the proof upon which Mrs. Schieffer relies to establish her claim for compensation for occupational disease is that mental stimuli produced the condition she offers as an occupational disease.

In response to special issue number 1, the jury found that “. . . plaintiff [did] receive an injury on or about December 15, 1976 . . .” (Emphasis added). The definition of injury which the trial court provided the jury failed to define accidental injury in conformity with Mak-syn, where the Supreme Court declared “. . .an injury is defined and understood as one that is an undesigned, untoward event that is traceable to a definite time, place, and cause . . . [and] is the result of an accident.”

The attorney general timely objected to omission from the court’s charge of the element of accidental injury, and submitted a definition describing accident in substantial conformity with the language of the Supreme Court in Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.1972). Appellee contends that the test of accidental injury, as stated in Olson, was met in this case, being the test restated in Maksyn. This contention rests apparently on the assumption that independent findings were obtained on both “accidental injury” and “occupational disease,” the two theories pleaded by Schieffer in this case.

The record shows that appellee failed to secure an independent finding by the jury of accidental injury. The term injury defined in the court’s charge did include the definition of occupational disease. The jury’s answer under special issue number 1, inquiring whether appellee had sustained an injury as defined, failed to constitute an independent finding of accidental injury. Absent an independent finding of accidental injury, and since the jury found specifically that appellee’s injury was an occupational disease, the case was submitted to the jury only on the theory of occupational disease.

We conclude that under the facts of this case, when viewed under the holdings in Maksyn and Olson, the only viable theory upon which appellee could have recovered was that of accidental injury. Under the court’s charge, with a specific finding by the jury that the injury suffered was an occupational disease and with no finding of accidental injury, it was error to render judgment for appellee.

The judgment of the trial court is reversed. We render judgment that the claimant take nothing by her suit.

ON MOTION FOR REHEARING

By motion for rehearing, Appellee Schief-fer urges this Court (1) to affirm the judgment of the trial court which awarded ap-pellee damages, or, alternatively, (2) to “remand the cause for a new trial in recognition of the interests of justice.”

As pointed out in this Court’s opinion, we consider the decision of the Supreme Court in Maksyn, controlling in the present case, and judgment of the trial court is properly reversed.

In urging remand of the cause for new trial, appellee invokes Rule 434 and relies on Morrow v. Shotwell, 477 S.W.2d 538 (Tex.Sup.1972). A court of civil appeals, under Rule 434, may not remand a case, instead of rendering judgment, “. . without relying upon a good and sufficient reason for so doing, reflected by the record.” (Emphasis added). Jackson v. Ewton, 411 S.W.2d 715, 718 (Tex.Sup.1967).

The holding in Morrow v. Shotwell, supra, is not helpful to appellee, for in that case the record itself made it clear that due to mutual mistake of the parties in description of the real property, on which plaintiff sought specific performance of a sales contract, plaintiff was unable to recover. But the Supreme Court, in the interest of justice, remanded the cause to permit plaintiff to seek reformation of the contract in which the mutual mistake as to description appeared, as reflected by the record.

In proceeding to further discussion, it should be pointed out that the Supreme Court in Maksyn quoted with approval language of an Arizona appeals case in which the court stated “. . .a disabling mental condition brought about by the gradual buildup of emotional stress over a period of time and not by an unexpected injury causing event is not compensable unless accompanied by physical force or exertion.” (580 S.W.2d 334, 338, col. 2).

In deciding whether rendition is proper, the appellate court will look to the record to ascertain whether the complaining party would be able to recover if the case had been tried on the right theory. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 799 (1951). The record in this case reflects that the evidence of both parties was well developed. Trial continued through at least three days, resulting in a statement of facts consisting of four volumes and comprising more than 700 pages. The record shows that appellee as plaintiff below pleaded “. . . she was subject to extreme stress of her job [and] had suffered as a result of the extreme stress . . . ” Appellee’s testimony plainly evidenced that her emotional problems emanated from the “. . . yelling, screaming type manner, and it was sort of like there were straws and straws and straws and this was the final straw . .”

In her motion for rehearing appellee does not suggest or point to existence of any evidence, other than that appearing in the record of trial, which would justify a new trial on the theory that she suffered accidental personal injury accompanied by physical force or exertion. Jackson v. Ewton, at 411 S.W.2d 719, col. 1. It is obvious that appellee is precluded from recovery on the theory of occupational disease under the holding in Maksyn. As pointed out by the Supreme Court in Benoit v. Wilson, supra, “Rendition of judgment, where a case has been tried upon the wrong theory, should only occur where the record discloses that the complaining party would not have been able to recover had the case been tried on the right theory.” (239 S.W.2d 799, col. 1).

Our review of the extensive record in this case results in the firm conclusion that ap-pellee as plaintiff below would not have been able to recover even if she had conformed to the rule of Maksyn. All of the evidence demonstrates that appellee is entirely reliant upon a disabling mental condition brought about by the gradual buildup of emotional distress, and did not in any manner suffer an unexpected personal injury accompanied by physical force or exertion.

Further grounds are present for rendition of judgment in this case. Appellee requests that if this Court finally reversed judgment of the trial court, the cause be remanded for new trial, at which full development of the facts may be attempted under the correct theory of accidental injury. Appellee’s premise appears to be that the decision in Maksyn deprived her of judgment, and that if she had known she was proceeding on a wrong theory, she would have sought submission of issues under the theory of accidental injury. This is not consistent with the record.

At trial appellee pleaded, in “Plaintiff’s Exceptions and Supplemental Petition,” . . Plaintiff would show that the trauma, injury and accidental injuries which Plaintiff complains of in her Original Petition, was [s/c] both an injury and an occupational disease as those terms are defined by sec. 20 of Article 8306 . . . ” Thus appellee pleaded for recovery under both accidental injury and occupational disease; yet chose to permit without objection to have the issues submitted limited only to occupational disease.

Rule 279, Texas Rules of Civil Procedure, provides that “. . . Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived . . . ” Appellee at trial by failing to request special issues on accidental injury, waived that theory as a ground of recovery. See Ormsby v. Ratcliffe, 117 Tex. 242, 1 S.W.2d 1084, 1085 (1928); Watkins v. Texas Employers’ Insurance Association, 534 S.W.2d 443, 445 (Tex.Civ.App. Austin 1976, writ ref’d n. r. e.).

Appellee contends that the decision in Maksyn created exceptional circumstances warranting this Court to remand the cause for new trial. The law pertaining to accidental injury under section 20 of Article 8306 was not changed by the Legislature by the 1971 amendments, and that law has been defined by the courts not a few times. See Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex.Sup.1972). Although the decision in Maksyn did perhaps alter the right of appellee to recover under the theory of occupational disease, Maksyn did not affect the theory of accidental personal injury accompanied by physical force or exertion. Appellee’s failure to obtain submission of issues pertaining to accidental injury appears to be based upon knowledge of well established law and recognition that the facts developed at trial rendered the theory of accidental injury an improper ground of recovery.

We find no basis for remand of the cause, and appellee’s motion for rehearing is overruled for the reasons stated.


text:
    TIFFANY STONE & BRICK COMPANY, INC. (Formerly Alamo Tile, Inc.), Appellant, v. The STATE of Texas et al., Appellees.
    No. 12838.
    Court of Civil Appeals of Texas, Austin.
    May 9, 1979.
    Rehearing Denied Oct. 31, 1979.

      Charles J. Muller, III, Matthews, Nowlin, Macfarlane & Barrett, San Antonio, for appellant.
    John L. Hill, Atty. Gen., Gayle Johnson Cipriano, Asst. Atty. Gen., Austin, for ap-pellees.
   O’QUINN, Justice.

The opinion of this Court filed May 9, 1979, is withdrawn, and this opinion is filed in lieu of the first.

The Texas Employment Commission, acting through the attorney general, brought this suit in April of 1977 against Tiffany Stone & Brick Co., Inc., for collection of employer’s contributions claimed due under Article 5221b-5, V.A.C.S., in excess of $20,-000.00 with accrued penalties.

Upon trial to the court without a jury, the court entered judgment in the amount of $20,211.66, from which Tiffany Stone appeals and brings five points of error. After review and disposition of the points of error, we will affirm the judgment of trial court.

In January of 1975 Tiffany Stone & Brick Co., Inc., Tiffany Building Materials Company, and Alamo Tile, Inc., entered into articles of merger and a joint merger plan, the merger to become effective January 31, 1975, with Alamo Tile, Inc., as the surviving corporation, but with change of its name to Tiffany Stone & Brick Co., Inc.

The tax or contribution period here involved begins with the second quarter of 1975 and ends with close of the fourth quarter. At issue between the parties is the tax rate applied by the Commission for 1975.

The trial court filed findings of fact and conclusions of law. Tiffany Stone filed its request for additional or amended findings. The court refused Tiffany Stone’s requested findings, but subsequently entered the court’s amended findings of fact and conclusions of law.

Under its first point of error Tiffany Stone claims error in the court’s finding of fact V, by which the court found “That after merger, Tiffany Stone & Brick Co., Inc. and Tiffany Building Materials Co. were no longer employers as defined by the Texas Unemployment Compensation Act.” It is true that this finding, under statutory provisions, is inaccurate, and conflicts as well with finding number III under which the trial court found that prior to the merger on January 31, 1975 each entity was an employer under Article 5221b-17(f)(l); yet the finding is not fatal to the court’s conclusions of law and the judgment.

Article 5221b-6(a) provides that “Any employing unit which is or becomes an employer subject to this Act within any calendar year shall be subject to this Act during the whole of such calendar year.” The trial court in finding number III accurately stated “That prior to merger, each of the corporations was an employer as defined by the . . Act, Article 5221b-17(f)(l) . . ” But under Article 5221b-6(c)(l) “No employing unit shall cease to be an employer subject to this Act except as of the first day of January of any calendar year, and only then if it files with the Commission, within the period from January 1 through March 31 of such year, a written application for termination of coverage . . . ” It is undisputed that such written applications were not filed with the Commission.

The Supreme Court has construed “ . . . this statutory provision as setting forth an exclusive method whereby an employer subject to the Act may discontinue such status.” State v. Cohen, 160 Tex. 175, 329 S.W.2d 87 (1959). The same conclusion was reached earlier in Webb v. State, 156 S.W.2d 557 (Tex.Civ.App. Beaumont 1941, writ ref’d), and Harris v. State, 159 S.W.2d 172 (Tex.Civ.App. Beaumont 1942, no writ). In Harris the court stated, “We think the method prescribed is exclusive and that when the status of ‘employer’ once attaches under the Act it continues until terminated in the manner provided.” (159 S.W.2d 173). It is immaterial that other filings with the Commission may suggest or advise that the status of the entity has been changed, and the application for termination remains essential as the only mode by which the Commission may be advised of the change, and termination be achieved. Cohen, 329 S.W.2d 89; Harris, 159 S.W.2d 173.

Article 5221b-5 provides, in pertinent part: “(a) Payment: Contributions shall accrue and become payable by each employer for each calendar year, or portion thereof, in which he is subject to this Act, with respect to wages for employment paid during such calendar year, or portion thereof . . . ” (Emphasis added). In this case, after the merger on January 31, 1975, Alamo Tile, Inc., now named Tiffany Stone & Brick Co., Inc., remained as “the only surviving corporation.” After that date, only Tiffany Stone paid the wages of employees, and therefore under the statute was the only unit liable for contributions. The only wages paid in 1975 by the predecessor corporations would have been paid in the month of January prior to the merger and in the first quarter of the calendar year.

The pleadings and the judgment for contributions in this suit do not cover the first quarter, but are confined to the last three quarters of 1975. Any issue as to the status of the predecessor entities after the merger, insofar as liability for contributions is concerned, is immaterial and not controlling of results.

Tiffany Stone, under its second point of error, urges that the trial court’s amended finding number VIII is not supported by any evidence. Under number VIII the court found “That for the calendar year 1975, the Texas Employment Commission applied the provisions of Article 5221b-6 to Alamo Tile Co. (now Tiffany Stone and Brick Co., Inc.).”

Appellant’s point is overruled as being without merit. As already observed, Section 6(a) of the Act plainly makes an employer subject to the Act for the entire calendar year in which the employer comes within the Act, and termination of coverage can be achieved only as prescribed by Section 6(c)(1). We agree with argument of the attorney general that “It is undisputed that Alamo Tile Company, subsequently renamed Tiffany Stone and Brick Company, Inc., Appellant herein, was an employer subject to the Act prior to the . merger and continued to be an employer throughout the quarters of liability involved in this litigation . . . [and] no issue has been raised as to whether Appellant filed an application for termination of its employer status pursuant to section 6(c)(1).”

Tiffany Stone complains under its third point of error that the trial court erred in refusing a requested finding of fact as to existence of a waiver under provisions of Section 5(c)(7) of the Act. In conjunction with this request appellant requested a finding that joint applications by the three units had been prepared and submitted through error induced by misrepresentations as to waiver of experience rating.

The trial court refused both requests and filed its amended findings as follow:

VI: “That a Joint Application for Total Transfer of Compensation Experience dated May 9, 1975 was submitted to the Texas Employment Commission for both Tiffany Stone & Brick Co., Inc. and Tiffany Building Materials Co., requesting transfer of the experience rating of these two companies to Alamo Tile Co.”

VII: “That after submission of the Joint Application for Total Transfer of Compensation Experience, the Texas Employment Commission applied the transfer provisions of Article 5221b-5(c)(7), V.A.T.S.”

Tiffany Stone complains only of taxes assessed for the calendar year 1975. The taxes for 1975 were based upon computations of experience as of October 1 of the previous year, and taxes in 1975 were entirely outside the scope of Section 5(c)(7) under which transfers of experience may be effected.

This section also provides that “If the application for transfer of experience is approved and the successor employing unit was an employer immediately prior to the acquisition, such successor shall pay contributions from the date of the acquisition until the end of the calendar year in which the acquisition occurred at the rate applicable to the successor on the date of acquisition.” The statutory law was construed by this Court in 1965, and we consider that decision controlling under the facts of the present case. Armco Steel Corporation v.

iu-uiuuv — *-- the State has already applied the combined experience ratings for the succeeding calendar year — 1976—for this Appellant, and no issue is here argued with respect to that computation. The issue here is: how does this merger, which occurred on January 31, 1975, affect the computation of tax for the balance of the calendar year 1975.”

We conclude that the answer to appellant’s question is found in two earlier decisions of this Court holding that it is only through Section 5(c)(7) that a changed or reorganized employing unit may succeed to the experience rating of another or predecessor unit. White v. State, 197 S.W.2d 389, 392 (Tex.Civ.App. Austin 1946, writ ref’d n. r. e.); Raymond Pearson Motor Co. v. Texas Employment Commission, 247 S.W.2d 429, 0 (Tex.Civ.App. Austin 1952, writ ref’d n. !e.).

Tiffany Stone employed the only "leans available to obtain a new tax rate, as > which no issue is raised challenging the imputation, and now is estopped to ques-jon the waiver of its rights to an experi-nce rating based on its experience for all {eriods prior to the merger date. The joint 'nnllnolinTio «níli n7QÍT7Di* nvAinaimm fwipd 11VU1/1V110 J KIVU HU1IV1 WM1W tated in the one-page instruments, were ntroduced and are a part of the record on Appeal. The statute, as pointed out earlier, is explicit in holding the successor employing unit to rates existing for the successor on the date of merger to the end of the {calendar year in which merger occurs.

Tiffany Stone complains that the trial court “erred in limiting cross examination {of the State’s expert witness.” Counsel for (Tiffany Stone, in cross examination of the supervising accounts examiner in charge of the collection section of the Commission, (asked the witness:

“I think we’ve established through your testimony that the mere existence of legal entity, corporate structure is not to determine the fact of the existence of tax under this statute? Would you agree with that?”

To which the witness replied, “I don’t know. I don’t know what you said, exactly.”

Counsel for the Commission interposed objection on the ground that the question was one “ . . . calling for a legal conclusion by the witness.”

The trial court sustained the objection, and the witness was not permitted to make further reply to the question propounded.

It is elementary that a witness, acting within his province, may testify to facts within his knowledge relative to the issue being tried, but may not testify to a legal conclusion from facts given either by himself or other witnesses. Texas Reciprocal Ins. Assn. v. Stadler, 140 Tex. 96, 166 S.W.2d 121, 125 (1942).

The trial court properly refused to permit the witness to testify as to his legal conclusion. “It is the duty of the court to declare the law applicable to [the] facts.” Stadler, 166 S.W.2d 125.

We have examined the record with care in the light of errors claimed by appellant and conclude that the judgment of the trial court should be affirmed.

Judgment of the trial court is in all things afffrmed.

Affirmed.


author: SHANNON, Justice. PHILLIPS, Chief Justice.

text:
    FIDELITY & GUARANTY INSURANCE UNDERWRITERS, INC., Appellant, v. Celedonio R. MENDOZA, Appellee.
    No. 12970.
    Court of Civil Appeals of Texas, Austin.
    July 11, 1979.
    Rehearing Denied Oct. 31, 1979.

      Jack W. Latson, Flahive & Ogden, Austin, for appellant.
    Jack W. London, London & Stokes, Elvis G. Schulze, Prud’homme & Schulze, Austin, for appellees.
   ON MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court filed on July 11, 1979, is withdrawn, and the following opinion replaces it.

Appellant, Fidelity & Guaranty Insurance Underwriters, Inc., appeals from an adverse judgment entered by the district court of Travis County in a worker’s compensation case. The appeal involves Tex.Rev.Civ. Stat.Ann. art. 8306 § 12d (1967), relative to a claimed change of condition of the worker.

Appellee, Celedonio Mendoza, injured his back on January 22, 1976, while working as an employee of Blount Brothers Corporation. Appellee’s counsel filed a claim for worker’s compensation with the Industrial Accident Board and on November 30, 1976, the Board entered its award ordering appellant to pay appellee $70.00 for four weeks for temporary total disability and $6.67 for three hundred weeks for permanent partial disability. Neither the insurance carrier nor the worker perfected an appeal from the Board’s order.

On January 12, 1977, ten days after the time for perfecting an appeal from the November 30,1976, order had expired, appellee by different counsel filed with the Board, pursuant to Tex.Rev.Civ.Stat.Ann. art. 8306 § 12d (1967), a motion to review the November 30, 1976, award upon the basis of a “change of condition.” On April 1, 1977, after hearing, the Board entered its order refusing to change its November 30 order for the reason that the evidence failed . . to establish that claimant has undergone a change of condition.” Mendoza then perfected his appeal to district court.

Mendoza’s position at trial was that after entry of the November 30 order, his physical condition changed for the worse resulting in his total incapacity to get and keep employment. The insurance carrier’s position was, inter alia, that there had been no change in Mendoza’s condition since entry of the November 30 order and that Mendoza suffered no additional loss of wage earning capacity after entry of the November 30 order.

Trial was to a jury. The jury’s verdict supported Mendoza’s theory of recovery. It found: (1) that the physical condition of Mendoza resulting from his accident changed substantially for the worse after November 30,1976; (2) that such change of condition was the producing cause of total incapacity; (3) that the beginning date of such total incapacity was December 16, 1976; and (4) that the duration of the total incapacity was permanent. Judgment for Mendoza was entered upon the jury’s verdict.

The authority for the Board’s review of its November 30, 1976, order and the subsequent judgment of the district court is Tex. Rev.Civ.Stat.Ann. art. 8306 § 12d which provides in part as follows:

“Upon its own motion or upon the application of any person interested showing a change of condition, mistake or fraud, the Board at any time within the compensation period, may review any award or order, ending, diminishing or increasing compensation previously awarded, within the maximum and minimum provided in this Law, or change or revoke its previous order denying compensation, sending immediately to the parties a copy of its subsequent order or award. . . ”

Section 12d is not intended to afford a method for correcting errors made in fixing the amount of the original award, but instead is designed to afford a means for an employer or employee to obtain an increase, decrease, or termination of an award because of a change in the workman’s physical condition occurring subsequent to the entry of the original award. Independence Indemnity Co. v. White, 27 S.W.2d 529 (Tex.Comm’n App.1930, jdgmt. adopted). The courts in construing art. 8306 § 12d have required proof of a substantial change in the workman’s condition occurring subsequent to the entry of the first award before the Board may change or modify its order awarding or denying compensation. Commercial Standard Ins. Co. v. Brock, 167 S.W.2d 281 (Tex.Civ.App.1942, writ ref’d w. o. m.); cf. Espinoza v. Miller’s Mutual Fire Insurance Company, 443 S.W.2d 891 (Tex.Civ.App.1969, writ ref’d n. r. e.). A continued incapacity of the same character for the same injury is not such a change of condition as warrants a modification of the award. Independence Indemnity Co. v. White, supra; Commercial Standard Ins. Co. v. Brock, supra.

The case at bar was tried and submitted without objection upon the theory that the substantial change for the worse in the workman’s physical condition occurring subsequent to the first award must be shown to decrease the workman’s earning capacity. We think that submission was correct, even though art. 8306 § 12d makes no reference to earning capacity, since the purpose of the Workmen’s Compensation Act is to compensate an injured employee for loss in earning capacity, not for loss of earnings or for injury sustained. Employers Reinsurance Corporation v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961); Houston Fire & Casualty Insurance Co. v. Dieter, 409 S.W.2d 838 (Tex.1966).

The insurance company attacks the judgment by twelve points of error. By several points the carrier claims there was no evidence to support the jury’s answer that Mendoza’s physical condition changed substantially for the worse after November 30, 1976. There was some medical testimony that Mendoza’s physical condition was not significantly different in December, 1976, than it had been in July, 1976. Nevertheless, there was the testimony of Mendoza and other lay witnesses that his physical condition had worsened. Those points of error are overruled.

The insurance carrier’s most important proposition is that Mendoza’s changed physical condition after November 30, 1976, could not be, as a matter of law, the producing cause of total incapacity. The carrier’s argument, as we understand, is as follows: Mendoza at trial judicially admitted to facts establishing that he was totally incapacitated before November 30, 1976. Because Mendoza was totally incapacitated before November 30, 1976, the change for the worse in his physical condition after November 30 necessarily could not have rendered him more incapacitated than he already was—totally incapacitated. The worsened physical condition, then, did not and could not cause an additional loss in earning capacity, and the jury finding that the worsened physical condition was a producing cause of Mendoza’s total incapacity (to earn) should have been disregarded.

The carrier’s argument is sound provided Mendoza judicially admitted to facts proving that he was, in effect, totally incapacitated prior to November 30, 1976. Mendoza’s testimony during the case on appeal that forms the basis for the claimed judicial admission is set out below:

“Q But on September—in September of 1976, you were totally unable to do any work?
A Yes, sir,
Q In October of 1976, you were totally unable to do any kind of work?
A In October, 1976?
Q That is still before you were put in the hospital.
A Yes, sir.
Q Up to November 30, 1976, you were totally unable to do any kind of work.
A Yes, sir.
Q In December of 1976, you were totally unable to do any kind of work?
A Yes, sir.
Q Right up to the present time?
A Yes, sir.”

Before a party is precluded from recovery by his own testimonial declarations, it must be shown:

(1) That the declaration relied upon was made during the course of a judicial proceeding;

(2) That the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving the testimony;

(3) That the statement is deliberate, clear, and unequivocal;

(4) That the giving of conclusive effect to the declaration will be consistent with the public policy upon which the rule is based; and

(5) That the statement is not also destructive of the opposing party’s theory of recovery. Griffin v. Superior Insurance Company, 161 Tex. 195, 338 S.W.2d 415 (1960); United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App. 1951, writ ref’d).

The rule by which a party’s recovery in a lawsuit is barred by his own testimonial declarations is one of public policy. It would be manifestly unjust to allow a party to recover after he has clearly and unequivocally sworn himself out of court. United States Fidelity & Guaranty Co. v. Carr, supra.

Although it would be manifestly unjust to allow a party to recover after he has clearly and uneqivocally sworn to facts that would defeat his cause of action or destroy his defense, it is also true that caution must be observed in the application of a rule that gives the same effect to statements made from the witness stand during the course of a trial under the usual attendant circumstances as that given to deliberate and presumably carefully prepared statements contained in pleadings. Westbrook v. Landa, 160 S.W.2d 232 (Tex.Civ.App.1942, no writ).

We have carefully considered the problem and have concluded that Mendoza’s statements are judicial admissions of facts conclusively establishing his total incapacity to earn prior to the November 30 order. Our analysis follows.

Mendoza was twenty-nine at time of trial. He attended high school at Kyle, Texas, and after he finished school, he went into the Job Corps. In Job Corps he studied to be an electrician and later obtained a journeyman’s license. After the injury, Mendoza attended classes at Southwest Texas State University in San Marcos. There is no suggestion in the evidence that Mendoza did not understand these questions and his answers thereto. The questions asked him related to a past fact, his ability to work during the months of September, October, and November, 1976, and not to a matter of opinion. Griffin v. Superior Insurance Company, supra. Whether Mendoza was able to work during those months was a fact peculiarly within his own knowledge, Gevinson v. Manhattan Construction Co. of Oklahoma, 449 S.W.2d 458 (Tex.1969), and not simply his impression of a transaction or an event as a participant or an observer. Mendoza’s responses to those questions were deliberate, clear, and unequivocal.

At the close of the evidence, Mendoza’s declaration remained unexplained and uncontroverted. Mendoza proved by his declaration that he was totally incapacitated for three months prior to the November, 1976, award. That being so, and contrary to the jury’s response to special issue number two, his changed physical condition after the award could not have diminished his earning capacity. Mendoza’s admission precluded the existence of a fact question and the jury had no power to find, contrary to the admission, that Mendoza’s changed condition was a producing cause of total incapacity. The jury’s answer to special issue number two should have been disregarded. Stanolind Oil & Gas Co. v. State, 136 Tex. 5, 145 S.W.2d 569 (1940); Southern Surety Co. v. Inabnit, 1 S.W.2d 412 (Tex.Civ.App.1927, no writ).

Mendoza argues for affirmance upon the basis that the November 30, 1976, award is “res judicata” of the fact that he was only partially incapacitated prior to November 30, 1976. Accordingly, Mendoza argues, it is immaterial that he admitted that he could not work in September, October, or November, 1976, since the carrier is collaterally estopped from going behind the November 30 award.

Mendoza’s “res judicata” argument presupposes that the district court erred in admitting the testimonial declarations into evidence. Mendoza failed to preserve the alleged error for consideration on appeal. Mendoza did not object to the tender of the evidence upon any basis, “res judicata” or otherwise. By not objecting, Mendoza waived his complaint that the November 30 award was “res judicata” of the fact that he was only partially incapacitated prior to November 30, 1976. Mendoza’s testimonial declarations stand unchallenged in the record. Further, Mendoza did not assign error by cross-point in this Court. Even though the appellee obtained a favorable judgment, he should have filed cross-points to protect his right to an affirmance or at least to protect his right to a new trial if the appellant should be successful in his appeal. Motsenbocker v. Wyatt, 369 S.W.2d 319,325 (Tex.1963); Appellate Procedure in Texas, § 15.16 at 351 (2d ed. 1979).

Should the “res judicata” argument be thought to be before the Court, our view is that the argument runs counter to the policy underlying judicial admissions, that one should not be permitted to recover after he has clearly and unequivocally sworn himself out of court. United States Fidelity & Guaranty Co. v. Carr, supra. When a person of mature years and unimpaired mentality testifies understanding^ and definitely to facts peculiarly within his knowledge, “. . any rational conception of justice demands that he be judged by what he says.” Harlow v. Laclair, 82 N.H. 506, 136 A. 128 (N.H.1927).

More important, Mendoza’s argument seems to be contrary to the purpose of art. 8306 § 12d. Section 12d does not provide a second or alternate opportunity to appeal from the original award. Section 12d does provide a means to obtain an increase or decrease of an award because of a substantial change in a workman’s physical condition occurring subsequent to the entry of the original award. The key to relief pursuant to § 12d is proof of a substantial change in physical condition subsequent to the entry of the original award resulting in diminished or enhanced earning capacity. To test whether a substantial change has indeed occurred, inquiry of the workman’s condition and capacity prior to and subsequent to the original award must be permitted.

The judgment is reversed and judgment is here rendered that Mendoza take nothing.

Reversed and rendered on Motion for Rehearing.

PHILLIPS, Chief Justice.

Appellee has alleged in his Motion for Rehearing that this Court erred in holding that the November 30, 1976, award of the Industrial Accident Board is not res judica-ta of appellee’s partial incapacity previous to the date of that award. It is my opinion that appellee is correct in this theory and therefore I respectfully dissent.

In November of 1976 the Board found that appellee had suffered total temporary disability and permanent partial disability, but not total incapacity as appellee had alleged. Thereafter, after the Board award had become final, appellee alleged that his condition had become worse and pursuant to Tex.Rev.Civ.Stat.Ann. art. 8306 § 12d (1967), filed a Motion to Review his application. The Board denied his application and a trial to a jury resulted in a verdict in appellee’s favor. The majority has erroneously held that appellee’s testimony that he was totally unable to do any work during the months of September, October, and November of 1976 constituted a judicial admission.

The law is well settled that a final award of the Industrial Accident Board, after the time for appeal has passed, is a final judgment, and its award is entitled to the same faith and credit as the judgment of a court. General American Casualty Company v. Rosas, 275 S.W.2d 570 (Tex.Civ.App.1955, writ ref’d n. r. e.); Moore v. Means, 549 S.W.2d 417 (Tex.Civ.App.1977, writ ref’d n. r. e.). The award of the Industrial Accident Board is res judicata as to the condition of the worker at the time of its entry and is conclusive as to matters adjudicable at that time. Espinoza v. Miller’s Mutual Fire Ins. Co., 443 S.W.2d 891 (Tex.Civ.App.1969, writ ref’d n. r. e.).

In viewing the purpose of Art. 8306 § 12d, it is apparent that the doctrine of res judicata should bar the use of appellee’s testimony as a judicial admission. One of the purposes of Art. 8306 § 12d is to allow any interested person to show a change of conditions to warrant a modification of a previous award. In other words, the Board’s adjudication of a physical condition is final as to the condition then existing, but is not final insofar as a party may show that his condition substantially worsened following the Board’s award. Commercial Ins. Co. v. Brock, 167 S.W.2d 281 (Tex.Civ.App.1942, writ ref’d w. o. m.). The review pursuant to Art. 8306 § 12d is based upon the initial award of the Board, and not upon the claimant’s alleged condition prior to the award. Thus, it is immaterial that Mendoza alleged in his first claim that he was totally incapacitated, since the Board found that his condition was less than total incapacity. To ask Mendoza whether he was able to work prior to the award is, in fact, simply determining his claimed condition during that time period, which is apparent from the record. However, the review afforded by Art. 8306 § 12d is not based upon an alleged condition, but upon a final award of the Industrial Accident Board.

The majority’s holding, that the claimant’s testimony as to his condition prior to the award constitutes a judicial admission, thus precluding recovery for a change of condition, nullifies Art. 8306 § 12d. Any claimant who has alleged total incapacity but received an award based upon a finding of less than total incapacity will be precluded from a modification based upon change of condition merely by repeating his earlier stated grounds of total incapacity.

I would apply the rule as stated in Boyett v. Boyett, 345 S.W.2d 799 (Tex.Civ.App.1961, writ ref’d n. r. e.), that a judgment on an issue directly involved in a case is conclusive in a second suit between the same parties. In applying the doctrine of collateral estoppel, the issue of Mendoza’s physical condition was resolved by the Industrial Accident Board in November of 1976, and is conclusive in the subsequent suit between the same parties.

The majority gives significance to the fact that appellee neither objected to the tender of the testimonial evidence nor assigned error by cross-point in this Court. It must be remembered that judgment was for appellee in the trial court, and that appellant has filed points of error complaining of error committed by the trial court. The law is well stated by our Supreme Court in Jackson v. Ewton, 411 S.W.2d 715 (Tex.1967):

“. . . ‘The brief of the appellee shall reply to the points relied upon by the appellant. . . . ’ These assist the appellate court in finding the answers given to the points of the appellant.”

It is my opinion that appellee is permitted to rebut appellant’s argument by advancing the theory of res judicata, and that this issue is properly before this Court.

Accordingly, I would affirm the judgment of the trial court.

      . Although appellee has stated his argument in terms of res judicata, the doctrine of collateral estoppel is more applicable to the instant facts. The doctrine of res judicata applies only when the following elements exist: identity of parties, issues, subject matter, relief sought, and cause of action. Collateral estoppel requires the identity of parties and issues, while identity of subject matter and causes is not material. Lemons v. State, 570 S.W.2d 593 (Tex.Civ.App.1978, writ ref d n. r. e.).