author: DWYER, Judge.

text:
    Guy SMITH, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 16, 1977.
    Certiorari Denied by Supreme Court Aug. 1, 1977.

      James V. Barr, III, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, W. B. Lockert, Jr., Dist. Atty. Gen., D. Vance Martin and Robert L. Perry, Jr., Asst. Dist. Attys. Gen., Ashland, for appellee.
   OPINION

DWYER, Judge.

This appeal in the nature of a writ of error is from the judgment of the Circuit Court of Cheatham County sentencing the appellant, Guy Smith, to death by electrocution for committing the offense of murder in the first degree.

In order to properly evaluate the assignments of error and in particular the assignments relating to the sufficiency of the evidence, we will summarize that evidence as found from our review of the record.

A young, eighteen-year-old soldier was found dead in a ditch alongside Bandy Road in Cheatham County on the morning of January 8, 1975. The primary cause of death was a .45 caliber gunshot wound in the neck with entry of the projectile from an up-down position traversing the chest area severing the Aorta. There were multiple stab wounds also on the young soldier’s body with at least one of such severity as to also have caused death.

The brother of the appellant, Lyle Anthony Smith, testifying as a State’s witness, gave testimony that he saw his brother stab and shoot the young soldier. Anthony had stopped their car which he was driving and his brother pulled the soldier from the back seat, stabbed and shot him. This witness further related that the appellant told him that he killed the soldier because the soldier had seen him kill another person on the Interstate Highway.

The brother’s testimony was fully corroborated by other witnesses for the State who gave them a battery boost when their car stalled in the vicinity on the night of the slaying, who found the identification papers of the deceased which appellant threw from the car, who recovered the .45 caliber pistol from an in-law to whom appellant had returned it, and who matched the shell casing found on the road and the bullet from the body of the deceased with those fired from this weapon during a ballistics test.

The appellant’s brother-in-law testified that during a conversation on January 11, 1975, the appellant said that he and the deceased had been drinking together, had gotten into an argument and the deceased had attacked him with a bayonet which appellant managed to take away and then stab the deceased. The appellant did not mention shooting the deceased.

The appellant, upon surrendering to the authorities the next day, stated that he had killed the young soldier in self-defense.

Premeditation is an essential element of first degree murder and may be inferred by the jury from the facts and circumstances. We will quote the bill of exceptions from the brother’s testimony to determine if that element is present in this record.

“A He stabbed him several times it looked like in the back and he spun around and he stabbed him in the front maybe in the chest and midsection.
“Q All right, now, what was this boy doing at the time he was being stabbed? “A He was incoherent and from where I was at didn’t understand what was happening, he was saying Hey, and you could hear him grunting everytime he was stabbed, I don’t know how many times he stabbed him, and—
“Q And what happened then, just go ahead and tell what happened then.
“A And he spun around and stabbed him in the front and told him to lay down and he stabbed him in the back and he—
“Q Had you moved to any other portion of the car by this time?
“A Yes.
“Q Where did you move to?
“A I had moved about the middle of the trunk.
“Q Could you see on the side where the boy was at this time?
“A Yes I could.
“Q What happened next?
“A He was sitting up with his right arm behind him propping him up and all I could see from the position where I was was a stream of blood coming out and I saw Buddy reach for his gun and he shot him and from where I was it looked like he shot him in the mouth. And when he did he just flopped over.
“Q Are you saying that this boy was outside the car and as I understand he was down in a seated position with his right hand behind him.
“A Yes sir.
“Q And your brother, was he still standing up?
“A Yes sir.
“Q And you say that he shot him. What did he shoot him with?
“A With the 45.
“Q With a 45. And you thought he shot him in the mouth.
“A Right.
“Q Did he shoot him from a up down position.
“A Yes sir.
“Q And what did the boy do then?
“A He just fell over.”

We think from that narration which has been approved by the jury’s verdict the element of premeditation may be found in this record. That verdict has rejected the appellant’s version of self-defense. Under the rule governing appellate review, as outlined in McBee v. State, 213 Tenn. 15, 19, 372 S.W.2d 173 (1963), the burden is upon appellant to show the evidence preponderates against his guilt and in favor of his innocence. This he has not done. The evidence supports the verdict. The assignments relating thereto are accordingly overruled.

He next assigns that the court erred in denying his motion to sequester the jurors during the voir dire so that each juror could be voir dired out of the presence of the others. The appellaAt contends that with the whole venire present and the same questions being propounded and the same responses created a carnival-type atmosphere with resulting community thought. An able and conscientious trial judge had this to say in overruling appellant’s motion:

“My problem is this, that the facilities are scant, we don’t have any place to send the other jurors except out in the courthouse with no place to sit and no place to stay, we just don’t have those kind of facilities here to do that, and I can’t see at this point that it would be . . . if I had some place to send them that would be fine but as it is they would just be milling around down there in the hallway . . At this point there is nothing either in the decisions or statutes involved requiring this, I understand that maybe there is some effort on the part of the criminal law [revision] committee to bring this about . . . but how long do you think it will take us to do this?”

While we are mindful that the proposed Tennessee Rules of Criminal Procedure contemplate the adoption of the principles in his motion on the voir dire, in an excellent opinion by our Presiding Judge Mark A. Walker in State v. Jefferson, Tenn., 529 S.W.2d 674, 682 (1975), the voir dire rests within the sound discretion of the trial court. From our review of the voir dire, the questions propounded by the trial court and the questions of the State’s attorney and the responses of the jury, we find no abuse of that discretion. There was no error in denying the motion in light of the above. The assignment is overruled.

The appellant contends the “rule” was violated by the T.B.I. agent briefing incoming witnesses of the State before they testified. In Nelson v. State, 32 Tenn. 237, 257 (1852), the following language may be found:

“. . . The practice of examining the witnesses separate and apart from each other, at the request of either party, is invaluable, in many cases, for the ascertainment of truth and the detection of falsehood. Such has been the experience of wise men in all ages, from the days of Daniel, that divinely-inspired judge, down to the present time.”

The trial court on overruling his motion for a mistrial stated:

“THE COURT: Do you mean to say that he told them what the other witnesses had testified to?
“MR. BARR: No sir, he went over their testimony briefing them before they came in here.”

The spirit of the “rule”, obviously is to prevent one witness from hearing the testimony of any other witness and adjusting his testimony in accord thereto. All of these matters address themselves to the sound discretion of the court. With no comparison or disclosure of previous testimony from the agent to the prospective witnesses and rather only a review of that witness’s own testimony, we find no error in denying his motion for mistrial. This assignment is overruled.

The Supreme Court of our State in Collins v. State (State v. Morgan), Tenn., 550 S.W.2d 643 (1977), held that the imposition of death under the mandatory provisions of Section 39-2406, Chapter 462 of the Public Acts of 1974 and codified into our code as T.C.A. 39-2405 violated the Eighth and Fourteenth Amendments to the Constitution of the United States and was therefore unconstitutional under the tenets of Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) and Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Our Supreme Court in an opinion on a petition to rehear by the respondent State styled Collins (and Morgan) v. State, 550 S.W.2d 643 (1977), at Knoxville, held that the governor had the authority to commute the punishment of death to one of life imprisonment. The governor by proclamation number EC 2 appended to this opinion commuted the punishment of appellant here from death to life imprisonment. Under that authority the sentence of death here is commuted to life imprisonment.

The judgment of the trial court as modified is affirmed.

WALKER, P. J., and TATUM, J., concur.

Illustrations follow.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Anthony E. BOUCHARD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 16, 1977.
    Certiorari Denied by Supreme Court Aug. 22, 1977.

      William C. Wilson, Nashville, for appellant.
    Brooks MeLemore, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., John E. Rodgers, Roger T. May, Asst. Dist. Attys., Nashville, for appellee.
   OPINION

TATUM, Judge.

The defendant, Anthony E. Bouchard, was tried and convicted by the Criminal Court of Davidson County of the felony of selling heroin. His punishment was fixed by the jury as incarceration in the State Penitentiary for not more than fifteen years nor less than ten years; a fine was imposed in the sum of $18,000.00. On appeal, he makes nine assignments of error; all of which are without merit.

The defendant’s first assignment of error is: “The Trial Court erred by holding the jury panel beyond its term where no jury had been selected.”

The procedure for selecting juries in Davidson County is governed by Chapter 53, Private Acts of 1947, as amended, which provides in part:

“SEC. 8. Be it further enacted, That at the first day of the Term of Court, of the Circuit or Criminal Courts, the Judge or Judges, after securing the Jury list, shall select from such list the petit or trial juries for the Term; the Clerk of the Court shall have prepared a Jury Calendar dividing the Term of Court into three week periods. The first eighteen jurors selected shall be the petit or trial jury for the first three weeks period of the Term; the second eighteen jurors selected shall be the petit or trial jury for the second three weeks period of the Term, and so on until the Jury Calendar for the Term is filled. . . . ”
“SEC. 14. Be it further enacted, That it shall be a misdemeanor for any person, in any County subject to the provisions of this Act, to serve upon any jury in the Circuit or Criminal Courts of said County for more than three weeks in any three years dating from the time the name of such person is drawn from said Jury Box No. 1, unless at the end of his three weeks service he shall be engaged in the hearing of a cause as a juror, which cause shall not then be concluded, in which event such person shall sit until the end of said cause without offending against this Act. . . . ”

After several continuances, the case was set for trial on Monday, 22 March 1976. On that day, defendant’s counsel moved for a continuance or resetting of the case due to illness of the defendant. Defense counsel informed the Court that the defendant could be examined by a physician on the following Wednesday, March 24, but not prior to then. As requested by defendant, the Trial Judge reset the case for Thursday, March 25, to enable the defendant to be examined and to allow the examining physician' to be in court. On Thursday, March 25, the defendant’s doctor testified that the defendant had not completely recovered, but that he was able to go to trial.

On this same day, Thursday, March 25, the Court reset the case for the following Monday, March 29. The Trial Judge did this in order to avoid keeping the jury sequestered or “locked up” over the weekend, as it was apparent that the trial would require four days or more. The Trial Judge also observed that this would get the defendant “further away from the flu.”

The jury panel which was serving on Thursday, March 25, was then in its third week. The Court excused the panel and instructed the members of the panel to return on Monday, March 29, which was the beginning of the panel’s fourth week of service.

We are first presented with the question of whether the action of the Trial Judge in using this jury to try this case during the jury’s fourth week of service invalidated the verdict. We think not. The defendant did not comply with the technical requirement that a written Motion to Quash be filed. The defendant did no more than make oral objection and exception on Thursday, March 25, when the Trial Judge excused the panel and directed its members to return the following Monday. The law requires that a written Motion to Quash be filed when an entire jury panel is sought to be dismissed on purely technical grounds. Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243 (1955); Monday v. Millsaps, 37 Tenn.App. 371, 264 S.W.2d 6 (1953).

In addition, we think that there was substantial compliance with the Private Acts of 1947, as amended. This case concluded the jury docket for that term of court and no panel had been summoned for the following Monday, March 29. Instead of commencing the selection of the jury on Thursday, March 25, and locking up the jury for the weekend at their inconvenience and at substantial public expense, the Trial Judge prudently commenced the trial on the following Monday. If the Trial Judge had commenced the trial on Thursday, he would have been in violation of the general law set out in T.C.A. § 40-2502, directing trial courts to establish rules of practice in the trial of criminal cases which may tend to diminish the cost of such cases.

The defendant asserts in his brief that he was prejudiced by the use of this jury panel because: (1) “[T]hat the longer a jury panel sits hearing cases, the more likely they are to convict,” and (2) that the purpose of the Statute is to “discourage the presence of professional jurors.” None of the members of the panel served between Thursday, March 25 and Monday, March 29, and the members of the panel were no more “experienced” or “professional” on March 29 than they were on March 25. We do not think there was a legislative intent to force trial courts of Davidson County to commence the trial of a case during the latter part of a week, knowing that it would be necessary to sequester the jury over the weekend. Such practice would serve no purpose, would benefit no one, and would be very expensive. We will not apply such an absurd construction to this Private Act. First National Bank v. Howard, 148 Tenn. 188, 253 S.W. 961 (1923). Also see Anderson v. Security Mills, 175 Tenn. 197, 133 S.W.2d 478 (1939); West v. State, 140 Tenn. 358, 204 S.W. 994 (1918).

The defendant assigns as error that the evidence preponderates against the verdict of guilty and in favor of his innocence. The accredited evidence was that on 6 November 1975, Mrs. Helen Jo Risler entered Jim’s Pool Room in Davidson County and purchased a quantity of heroin from the defendant for the sum of $150.00. There was evidence that the defendant was in the business of selling drugs and that he had made a previous sale to Mrs. Risler and that he sold drugs to other persons. Mrs. Risler made the purchase on 6 November 1975, in cooperation with the Metropolitan Police Department. Mrs. Risler’s automobile and her person were searched prior to the transaction. It was determined that she did not have drugs in her possession before entering the poolroom, but that she did have drugs in her possession when she left the poolroom.

The defendant’s proof was that he was not in the drug business and did not sell the drug to Mrs. Risler. The defendant has not shown that the evidence preponderates against the verdict of guilty and in favor of his innocence. We must overrule this assignment. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963).

The defendant’s second assignment of error alleges that the Trial Court improperly restrained defense counsel’s closing argument to the jury.

Helen Jo Risler testified that she made several unsuccessful attempts to buy heroin from the defendant since she began cooperating with the police department. These unsuccessful attempts were all made prior to the successful attempt on 6 November 1975. She testified further that tapes were made of conversations with the defendant on the unsuccessful contacts with him.

On the defendant’s motion, the tape recording of the November 6 conversation was suppressed by the Court, because the recorded conversation was indiscernible. In his argument to the jury, defense counsel attempted to argue that since the State did not introduce the five or six tape recordings made on unsuccessful efforts of Mrs. Risler to purchase drugs from the defendant, that this was an inference that the tapes contained exculpatory evidence. The Court sustained an objection to this line of argument.

We think the Trial Court was correct. The defendant was being tried for the successful purchase allegedly made by Mrs. Risler on November 6. The unsuccessful efforts were made prior to that time. What was said on the prior occasions when the defendant admittedly did not sell heroin to the informant could not be exculpatory of the subsequent alleged sale of November 6. For the same reason, this argument could not have affected the results of the trial.

Moreover, we glean from the record that these tapes were indiscernible but were available to be heard by defense counsel prior to trial. Had they contained exculpatory evidence, they would have been available to the defendant for use in evidence. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). This assignment is overruled.

In Assignment of Error III, the defendant states that he was denied a fair trial because the State failed to fully respond to his discovery motion. He complains that his attorney did not see certain photographs prior to trial, that tapes made during Mrs. Risler’s unsuccessful efforts to buy heroin from the defendant prior to 6 November 1975. “might” have been exculpatory and that the State did not supply “names, addresses and statements of others who had attempted to entrap the appellant into selling drugs on occasions when he refused to do so.”

When the discovery motion was filed, the State did not intend to use the photographs as evidence. Defense counsel stipulated with the State that the photographs in question could be used, and waived his objection to the use of the photographs.

The tapes recorded prior to the successful buy from the defendant are not shown to contain exculpatory evidence. To the contrary, the record reflects that they do not contain exculpatory evidence. The witness testified that the defendant did not sell her drugs on the occasions when these tapes were recorded. She did testify that she bought drugs from the defendant on one prior occasion, but that she was not acting in concert with the police department at that time and no tapes were made. Moreover, the record reflects that on March 24, defense counsel was aware of the existence of multiple “tapes” and stipulated regarding them.

There is no showing that the State had the names and addresses of witnesses who could furnish exculpatory evidence of any kind. The record indicates that the State had no knowledge of any witnesses who could furnish exculpatory information.

Assignment III is overruled.

In his fourth assignment of error, the defendant says that the Court erred in overruling two motions for mistrials.

The first alleged ground for a mistrial arose from testimony of Diane Johnson to the effect that defendant’s counsel participated in a discussion laying plans to bribe Mrs. Risler. The witness was the daughter of Mrs. Risler. On direct examination, Ms. Johnson testified that she had been a heroin addict in the past, and that she had purchased her drugs from the defendant. On cross-examination, defense counsel questioned the witness concerning a trip she made to his office. These questions were designed to show that the witness, at the time of the office visit, intended to testify that the defendant did not sell drugs. On redirect examination, the State brought out the testimony of the witness to the effect that defense counsel joined in discussing the possible bribery of Mrs. Ris-ler. The State did not mention the trip to defense counsel’s office on direct examination. However, in view of the questions asked the witness on cross-examination, it was legitimate for the State to bring out the witness’s version of her purpose in visiting defense counsel’s office and what had transpired. We regret this unfortunate incident, but we must hold that there was no abuse of the Trial Court’s discretion in denying a mistrial. See, Layman v. State, 1 Tenn.Cr.App. 83, 429 S.W.2d 832 (1968).

The second ground for a mistrial is based on an allegation that the State was spying on defense witnesses. There is an indication in the record that certain defense witnesses were “on call” (not confined to the jury room at defendant’s request). They were alleged to have been in and out of the courtroom when “the rule” had been invoked. The State attempted to obtain evidence of this by electronically wiring an individual who talked with these witnesses.

The jury was not aware of any of this activity. It could not have prejudiced the defendant or affected the trial in any way. Furthermore, the defendant did not move for a mistrial. The Trial Judge did not abuse his discretion in not declaring a mistrial sua sponte. Layman v. State, supra; T.C.A. § 27-117. This assignment is overruled.

The defendant assigns as error the refusal of the Trial Judge to permit him to examine prospective jurors individually and outside of the presence of “each other.” The Trial Judge has wide discretion in the examination of prospective jurors and his action will not be disturbed unless there is an abuse of that discretion. Vines v. State, 190 Tenn. 644, 231 S.W.2d 332 (1950); Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1947), cert. denied, 333 U.S. 846, 68 S.Ct. 659, 92 L.Ed. 1129 (1948); Solomon v. State, 489 S.W.2d 547 (Tenn.Cr.App.1972). We find nothing in the record indicating an abuse of discretion on the part of the Trial Judge. The method of voir dire utilized by the Trial Judge is the prevailing practice in Tennessee. State v. Jefferson, 529 S.W.2d 674 (Tenn.1975); Lang v. State, 3 Tenn.Cr.App. 108, 457 S.W.2d 882 (1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971). This assignment is overruled.

The defendant states that the Court erred in refusing a continuance. The only ground assigned for the request for the continuance was that the defendant was ill. On Thursday, 25 March 1976, his attending physician testified that the defendant’s recovery was sufficient to enable him to go to trial on that day. There was no evidence to the contrary, but the Trial Judge set the case for trial the following Monday for the purpose, among others, of allowing the defendant to make further recovery. Motions for continuances are addressed to the sound discretion of the Trial Judge. Bivens v. State, 4 Tenn.Cr.App. 580, 474 S.W.2d 431 (1971). We do not find that the Trial Judge abused his discretion. This assignment is overruled.

The seventh assignment is that the Trial Court erred “by improperly restricting impeachment of the State’s witnesses.” The defendant argues that he was not permitted to show by cross-examination of State’s witnesses, that the witnesses had been treated by the State with favor and leniency in cases against them. The Court had previously ruled that State’s witnesses could be discredited only by evidence of convictions of certain classifications of crimes. The defendant is entitled to cross-examine the State’s witnesses to show that promises of favor or leniency have motivated such witnesses to testify falsely against the defendant. This is another method of discrediting the testimony of a witness. See, D. Paine, Tennessee Law of Evidence §§ 209, 211 (1974). However, the record reflects that the defendant was permitted to fully cross-examine the State’s witnesses in this regard. Since the record does not support defendant’s contention that he was restricted in cross-examination of the State’s witnesses, we must overrule this assignment.

The defendant’s remaining assignment of error is that the judgment should be reversed “because of the cumulative effect of the errors at trial which, taken together, show that the appellant was deprived of a fair trial.” We have examined this record and do not agree that the defendant was deprived of a fair trial. This assignment is overruled.

The judgment of the Criminal Court is affirmed.

WALKER, P. J., and DWYER, J., concur.

      . The defendant has also cited Chapter 226 of the Private Acts of 1967 which purports to reduce the term of jury panels in Davidson County to two weeks, but the 1967 Act was not locally approved and never became law.

      . The trial actually lasted six days,


text:
    Dennis M. ANDERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 24, 1977.
    Certiorari Denied by Supreme Court Aug. 29, 1977.
    Richard B. Gossett, Wayne E. Thomas, Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Jerry S. Sloan, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   DWYER, Judge.

OPINION

The appellant appeals the trial court’s order revoking his suspended sentence and ordering that sentence to run consecutive with the sentence for the subsequent criminal conduct that brought about the revocation.

The appellant pled guilty to committing the offense of joyriding, T.C.A. 59-504, in Division I of the Hamilton County Criminal Court on February 12, 1976. He received a sentence of not less nor more than one year. This sentence was suspended by the trial court on the recommendation of the State. The appellant was placed on probation for five years conditioned on his good behavior.

On November 30, 1976, in Division III of the Hamilton County Criminal Court the appellant entered a plea of guilty to committing the offense of burglary in the third degree, T.C.A. 39-904 and was sentenced to be confined for not less than three years nor more than three years.

The State then petitioned for the revocation of the suspended sentence given the appellant in the joyriding conviction premised on the burglary third degree conviction and requested by written motion that the joyriding offense sentence be served consecutive to the sentence for the burglary conviction.

After a hearing on the matter on January 13,1977, the trial court of Division I granted both the petition and the motion of the State, revoked the joyriding conviction sentence and ordered that sentence to run consecutively with the burglary sentence as imposed.

The appellant contends that the trial court’s ordering the sentence for joyriding to be served consecutive to the burglary sentence goes beyond the penumbra of the tenets of Gray v. State, Tenn., 538 S.W.2d 391 (1976), in which our Supreme Court conditioned the imposition of consecutive sentences.

We think Gray v. State, supra, is not controlling in this case for the holding in Gray came into force and effect when there were multiple indictments consolidated in a single trial with verdicts of guilty as to different offenses flowing from one trial. We further think that the tenets of the Gray court authorize the trial court to impose consecutive sentences under the facts found in this record. Mr. Justice Fones in his dissertation on imposition of consecutive sentences had this to say:

“. . . Essentially, a consecutive sentence should be imposed only after a finding by the trial judge that confinement for such a term is necessary in order to protect the public from further criminal conduct by the defendant.” 538 S.W.2d at 393.

It is obvious from this record such a decree is applicable to the appellant’s conduct here. The trial court, however, ordered the sentence to be served consecutively under the dictates of T.C.A. 40-2906:

40-2906. Revocation of suspension.— The trial judge shall possess the power, at any time within the maximum time which was directed and ordered by the court for such suspension, after proceeding as mentioned in § 40-2907, to revoke and annul such suspension, and in such cases the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension, and shall be executed accordingly; provided, however, that in any case of revocation of suspension on account of conduct by the defendant which has resulted in a judgment of conviction against him during his period of probation, the trial judge may, in his discretion, order that the term of imprisonment imposed by the original judgment be served consecutively to any sentence which was imposed upon said conviction.”

The trial court had authority to order the sentence first imposed to be consecutive to the subsequent conviction which triggered the revocation of appellant’s suspended sentence. It is self-evident from this record that the subsequent offense predicated the court’s discretion to run the sentences consecutively. We affirm that judgment.

WALKER, P. J., and TATUM, J., concur.


author: SAM D. JOHNSON, Justice.

text:
    Jackie WOODS et ux., Petitioners, v. B. L. LITTLETON et al., Respondents.
    No. B-6270.
    Supreme Court of Texas.
    June 29, 1977.
    As Corrected On Denial of Rehearing July 26, 1977.

      Hitt & Pesek, Cahill Hitt, Texarkana, for petitioners.
    Atchley, Russell, Waldrop & Hlavinka, Norman C. Russell, Texarkana, for respondents.
   SAM D. JOHNSON, Justice.

Alleging the existence of a defective sewer system and faulty repair work, Jackie and Cheryl Woods sued B. L. Littleton and Joe S. Thomson, doing business as Superior Construction Company, asserting as one of their grounds for recovery a violation of the Deceptive Trade Practices-Consumer Protection Act, Texas Business and Commerce Code, Section 17.41, et seq. Two issues must be resolved: (1) whether the Consumer Protection Act applies to the circumstances of the instant case; and, if so, (2) whether treble damages are mandatory. The trial court, on the basis of a jury verdict, held the Consumer Protection Act applicable and that the act of the defendants was a deceptive practice. The trial court then rendered judgment for Jackie and Cheryl Woods. Although the trial court assessed the court costs against Littleton and Thomson and awarded the couple reasonable attorneys’ fees pursuant to Section 17.50(b)(1) of the Consumer Protection Act, it declined to treble the actual damages, which consisted of awards for mental anguish and the diminished value of the home. The court of civil appeals held the evidence was insufficient to support the jury findings on the diminished value of the home and that the special issue regarding mental anguish was defective. In remanding to the trial court, the court of civil appeals commented that the Consumer Protection Act did not apply. 538 S.W.2d 800. We affirm the judgment of the court of civil appeals, which remanded the cause to the trial court.

The couple purchased their newly constructed home on November 10, 1972 from Superior Construction and within a month they experienced difficulties with their sewer system and septic tank. These problems included water backing up from the commode, the washing machine, and the bathtub. Mr. Woods, on numerous occasions, complained to Mr. Joe S. Thomson, a partner in Superior Construction. Several attempts were made by Superior Construction to correct these problems and, according to Mr. Woods, the last one made was in June or July 1973. At that time pipe was added to one of the septic tank’s field lines, which extended the field line to within seven or eight feet of the street in front of Mr. Woods’ home. Mr. Woods stated this additional field line solved the previous difficulties he had experienced, but created a new one. He asserted the field line came to the surface of his front yard and allowed sewage to run directly onto the land and into the street. In support of this testimony, the record reveals that Mr. Woods was summoned to appear before the Justice Court of Bowie County “for [his] trial upon the penal offense of allowing sewage to flow into a public street.” He testified he was assured by a representative of Superior Construction that the additional field line would cure any problems. When the additional field line caused sewage to run into the street, Mr. Woods stated he renewed his complaints to Mr. Thomson.

Byron Littleton, Jr., who was a work supervisor for Superior Construction, also described the steps taken to solve Woods’ sewer problems. First, as a temporary measure, the workers dug to the end of a field line to relieve the pressure forcing the sewage back into the house. Next, this hole was enlarged and eight yards of wash rock was placed in it in the hope that this work would solve the problems. The problems persisted, however, and Superior Construction returned and added approximately 100 feet to the field line on which they had previously worked. This additional 100 feet extended the field line to the front of Woods’ yard and, according to Littleton, Jr., was at least eight inches below the surface. He also testified that these repairs were completed by March 1973.

Mr. Joe S. Thomson, a partner in Superi- or Construction, testified that at the time of purchase the house was substantially complete and that a one-year warranty was given to the purchasers, Jackie and Cheryl Woods, to do whatever was necessary to put the house in final shape and to repair anything that went wrong.

The jury found that either Joe S. Thomson or B. L. Littleton, after May 21, 1973 (the effective date of the Consumer Protection Act), told Woods that the sewer system was in good working order and further found such statement was a “deceptive trade practice.” The jury then proceeded to find: (1) $5,000 would compensate Jackie and Cheryl Woods for the mental anguish they suffered; (2) the lack of a properly working septic tank system diminished the value of the home by $5,000; (3) $2,000 would be reasonable attorneys’ fees for the trial of the cause; (4) $1,000 would be reasonable attorneys’ fees for an appeal to the court of civil appeals; (5) $500 would be reasonable attorneys’ fees for applying for a writ of error to the supreme court; and (6) $500 would be reasonable attorneys’ fees for the amount of time expended if the application for writ of error was granted.

To resolve the issues in this appeal, this court must interpret the Consumer Protection Act. The Legislature has declared that “[i]n all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy.” Article 10, Section 6, Texas Revised Civil Statutes Annotated. Expanding upon the command of the Legislature to diligently look for its intention, this court wrote:

“The fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof. This Court has repeatedly held that the intention of the Legislature in enacting a law is the law itself; and hence the aim and object of construction is to ascertain and enforce the legislative intent, and not to defeat, nullify, or thwart it. . It is settled that the intention of the Legislature controls the language used in an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather than the strict letter of the act will control.” City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951).

With respect to the statute in question, the Consumer Protection Act, the Legislature gave additional, and even more explicit, guidance for the construction and application of the Act by declaring:

“This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.” Texas Business and Commerce Code, Section 17.44.

The initial issue to be decided is whether there has been a violation of the Consumer Protection Act. The statute provides: “The provisions of this subchapter apply only to acts or practices occurring after the effective date [May 21, 1973] of this subchapter, . . ” [Section 17.63]. In the instant case the jury found: (1) Thomson or Littleton, after May 21, 1973, told Woods the sewer system was in good working order; and (2) such statement was a deceptive practice. Although the sale which initiated the chain of events which led to the act complained of occurred prior to the effective date of the Act, that fact does not preclude recovery under the Consumer Protection Act for a deceptive practice occurring after the effective date of the Act, May 21, 1973. Two courts of civil appeals have already so held, and a third has indicated approval of these holdings.

In Town & Country Mobile Homes, Inc. v. Stiles, 543 S.W.2d 664 (Tex.Civ.App.—El Paso 1976, no writ), Stiles purchased, on September 6,1972, a mobile home manufactured by Town & Country. Stiles complained of numerous defects in the home and Town & Country sent a service representative to make repairs on two occasions; the last time on June 18, 1973. Town & Country’s representative worked on a heat duct, installed an extra heat register in one bedroom, and repaired a leaking back door. On July 10, 1973 the service manager of Town & Country wrote Stiles and stated in part: “I hope you are liking your mobile home a lot better, now that you have it all fixed up.” The court concluded that even though the mobile home was sold before the effective date of the Consumer Protection Act a cause of action existed under the Act, Section 17.46(b)(13), because Town & Country made repairs after May 21, 1973 and also stated after May 21, 1973 that the mobile home was “all fixed up.”

A similar result obtained in Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656 (Tex.Civ.App.—Amarillo 1975, no writ). Prior to the effective date of the Act, on January 12, 1973, McLarty purchased an automobile from Crawford Chevrolet. The vehicle was ordered by Crawford Chevrolet from the manufacturer shortly thereafter. However, the vehicle did not arrive until July 9, 1973, or after the effective date of the Act. On that same day, July 9, 1973, McLarty was told by the owner of the dealership, Crawford, that the sales representative who sold the automobile to McLarty did not have authority to negotiate the final terms of the sale and demanded an additional $234.76 on the purchase price, which McLarty paid. The record was uncontradicted that the sales representative did have the authority to negotiate the final terms of the sale and the jury found that Crawford’s statement to the contrary was a deceptive practice. Again, the court of civil appeals held that the Consumer Protection Act applied since the deceptive practice— the denial by Crawford of the authority of the sale representative to negotiate the final terms and the demand for additional monies — occurred after May 21, 1973.

Finally, in Cape Conroe Limited v. Specht, 525 S.W.2d 215, 219 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ), the court cited Crawford Chevrolet, Inc. v. McLarty, supra, as one ground for its conclusion that no cause of action existed under the Consumer Protection Act in the case before it as all of the representations and warranties were made prior to May 21, 1973. We conclude that the date of the acts which give rise to the cause of action under the Consumer Protection Act, rather than the date of the sale, determines the applicability of the Act.

The next issue is whether, with respect to the particular practice in this case, Jackie and Cheryl Woods are “consumers” within the meaning of the Consumer Protection Act and are therefore entitled to the remedies explicitly provided by that Act for “consumers.” The statute defines “consumer” to mean “an individual who seeks or acquires by purchase or lease, any goods or services” [Section 17.45(4)]; defines “goods” to mean “tangible chattels bought for use” [Section 17.45(1)]; and defines “services” to mean “work, labor, and services for other than commercial or business use, including services furnished in connection with the sale or repair of goods” [Section 17.45(2)]. It should be noted that “services” as defined in the statute as enacted is not limited to “services” relating to “goods” but rather includes any service, work, or labor for other than commercial or business use.

Since the builders, Superior Construction, promised to repair any defects in the home that arose within the first year, Woods not only purchased the real property but also, and in addition, the services of the builders as that term “services” is used in the statute. Moreover, the statement made by one of the builders (either Thomson or Littleton) after May 21, 1973 that the repairs to the sewer system placed it in good working order when in fact they did not, is a deceptive practice arising from the separate contract for services. It does not arise from the accompanying sale of real estate.

This view of the meaning of the word “services” is supported by the interpretation given to the term “services” in another statute which also awards attorneys’ fees. Article 2226, Texas Revised Civil Statutes Annotated, provides:

“Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished, overcharges on freight or express, lost or damaged freight or express, or stock killed or injured or suits founded upon a sworn account or accounts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, the claim has not been paid or satisfied, and he should finally obtain judgment for any amount thereof as presented for payment to such persons or corporation, he may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees.” [Emphasis added.]

Discussing the difference between “services” and “personal services” in relation to Article 2226, the court, in Van Zandt v. Fort Worth Press, 359 S.W.2d 893, 895 (Tex.1962), wrote:

“Webster’s Third New International Dictionary gives a general definition of ‘service’ as ‘action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something: deeds useful or instrumental toward some object.’ ”

Since the 1971 amendment of Article 2226, which substituted the word “services” for “personal services,” it has been held that “services” includes the furnishing of electrical energy, Caston v. Texas Power & Light Co., 501 S.W.2d 472 (Tex.Civ.App.—Texarkana 1973, no writ), the servicing of oil field wells, Texcalco Inc. v. McMillan, 524 S.W.2d 405 (Tex.Civ.App.—Eastland 1975, no writ), the preparing of the ground for a construction project, Mathews Const. Co. v. Jasper Housing Const., 528 S.W.2d 323 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.), and the designing and furnishing of brochures, Allison v. Douglas, 531 S.W.2d 445 (Tex.Civ.App.—Waco 1975, no writ). Clearly, a promise to repair any defects in a home is a promise to provide “services for other than commercial or business use.”

This interpretation of the word “services” is not only in accord with the declared purposes of the statute and the commands of Article 10, Section 6, and of Section 17.44 of the Consumer Protection Act, but it is also in accord with the 1975 amendments which were described as simply clarifying the statute and which define “services” to include services furnished in connection with the sale of real property [Sections 17.45(1) and (2)]. Accordingly, as purchasers of “services,” Jackie and Cheryl Woods are “consumers” within the meaning of the Consumer Protection Act.

Littleton argues that the fact the deceptive practice emanated from a real estate transaction on November 10, 1972, and the fact that the definition of “consumer” originally contained in the Act did not clearly include a purchaser of real estate, requires the conclusion that Jackie and Cheryl Woods are not “consumers.” We reject this contention. Just as the date of the deceptive practice, rather than the date of the sale, determines the applicability of the statute, the fact that the deceptive practice arises from the sale of “services” on November 10,1972, rather than the real estate sold on that date, is determinative of the applicability of the Consumer Protection Act.

Moreover, the Act as originally enacted clearly declares deceptive practices in the conduct of a real estate sale to be unlawful. The statute provides: “False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful” [Section 17.-46(a)]; and defines “trade” and “commerce” to “mean the advertising, offering for sale, sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state” [Section 17.45(6)]. Since a deceptive practice in the conduct of a real estate transaction is specifically declared to be unlawful, it cannot be said that Jackie and Cheryl Woods are to be excluded from the category of “consumers” and denied the protection of the Act afforded “consumers” merely because the sale included real estate as well as “services.” To the extent that Cape Conroe Limited v. Specht, supra, suggests a contrary result, that case is disapproved.

Having ascertained that the Act is applicable and that Jackie and Cheryl Woods are “consumers” within the meaning of the statute, the next issue is the amount of damages to which they are entitled. The jury awarded damages for mental anguish in the amount of $5,000. The court of civil appeals held the form of the following special issue on damages for mental anguish deficient:

“What sum of money, if any, if paid now in cash, do [you] find from a preponderance of the evidence would fairly and reasonabl[y] compensate Jackie Woods and his wife Cheryl Woods for the mental anguish they have suffered in the past, if any, as a result of the occurrence in question.”

Generally, this special issue would be sufficient to place before the jury the question of mental anguish. However, if treble damages are mandatory under the Consumer Protection Act, then it would be necessary for the jury to decide the actual damages for mental anguish attributable to a violation of that statute. Stated another way, if treble damages are mandatory under the Consumer Protection Act, then in the instant case the jury would have to determine the actual damages which were caused only by the violation of the Act after its effective date, May 23, 1973.

Section 17.50(b) provides:

“In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended;
“(2) an order enjoining such acts or failure to act;
“(3) orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter; and
“(4) any other relief which the court deems proper, including the appointment of a receiver or the revocation of a license or certificate authorizing a person to engage in business in this state if the judgment has not been satisfied within three months of the date of the final judgment. The court may not revoke or suspend a license to do business in this state or appoint a receiver to take over the affairs of a person who has failed to satisfy a judgment if the person is a licensee of or regulated by a state agency which has statutory authority to revoke or suspend a license or to appoint a receiver or trustee.” [Emphasis added.]

Thomson and Littleton contend the use of the word “may” permits a court to award damages ranging from actual damages up to and including treble damages. Jackie and Cheryl Woods maintain once they establish all of the elements of a cause of action as “consumers” under the Consumer Protection Act then the Act itself requires that the actual damages suffered be trebled.

The position of the word “may” dictates the conclusion that the Legislature intended the treble damages to be mandatory. The word “may” appears in the introductory phrase to the list of alternative remedies made available by the Act to consumers. Significantly, the word “may” does not appear in any of the four enumerated subsections. Given the position of “may,” it cannot be doubted that the Legislature intended “may” to indicate that the consumer has several remedies from which to choose and that the court is to grant the consumer that relief which the consumer proves a right to receive. Thus, the individual who establishes all the elements required for injunctive relief shall receive such injunctive relief and, supported by adequate proof, reasonable attorneys’ fees and court costs. Similarly, the consumer who proves all the elements required to recover actual monetary damages shall recover three times the actual monetary damages and, supported by adequate proof, reasonable attorneys’ fees and court costs. McDaniel v. Dulworth, 550 S.W.2d 395 (Tex.Civ.App.—Dallas 1977) [treble damages]; Volkswagen of America, Inc. v. Licht, 544 S.W.2d 442 (Tex.Civ.App.—El Paso 1976, no writ) [attorneys’ fees]. Maxwell, Public and Private Rights and Remedies Under the Deceptive Trade Practices—Consumer Protection Act, 8 St. Mary’s L.J. 617 (1977); Bragg, Now We’re All Consumers! The 1975 Amendments to the Consumer Protection Act, 28 Baylor L.Rev. 1 (1976); see Shaw, Recent Consumer Legislation in Texas, 37 Tex.BJ. 141 (1974). But see Hawkins, Breach of Warranty and Treble Damages Under the Texas Deceptive Trade Practices and Consumer Protection Act, 28 Baylor L.Rev. 395 (1976); Lynn, A Remedy for Undermade and Oversold Products, 7 St. Mary’s L.J. 698 (1976).

As noted in McDaniel v. Dulworth, supra, at 396:

“ ‘May’ as used in the introductory phrase of section 17.50(b) has as its subject ‘each consumer;’ therefore, any discretion lies with the consumer. Merely because the statute uses the permissive ‘may’ with respect to the consumer is not tantamount to saying that the trial court ‘may’ determine whether treble damages are awarded. In our view, the clear language permits the aggrieved consumer four different, yet complementary, remedies to rectify the wrong that he alone may elect to pursue. One of these is treble damages. We hold, therefore, that section 17.50(b)(1) is mandatory in requiring treble damages once liability under section 17.50(a) has been established.
“Our interpretation is in accord with the legislative intent to provide effective relief for aggrieved consumers who would not otherwise sue but for the provision pertaining to treble damages and to reasonable attorney’s fees based upon the amount of work expended rather than the amount of actual damages. To hold otherwise would render ineffective the legislative intent to encourage aggrieved consumers to seek redress and to deter unscrupulous sellers who engage in deceptive trade practices. Indeed, Tex.Bus. & Comm.Code Ann. § 17.44 (Vernon Supp.1976) mandates that the Deceptive Trade Practices and Consumer Protection Act shall be liberally construed so as to protect consumers and to provide efficient and economical procedures to secure this protection.” [Emphasis added.]

The Legislature, by placing “may” in the introductory phrase to the list of alternative remedies, could not have intended to indicate that the court or the trier of fact was to award damages ranging from actual damages to treble damages.

In the case of National Surety Corporation v. Ladd, 131 Tex. 295, 115 S.W.2d 600 (1938), the court faced a situation analogous to the problem of ascertaining the proper construction of the word “may” in the Consumer Protection Act. The court was required to interpret Article 3392, Texas Revised Civil Statutes Annotated (1952), which contained the word “may” preceding a list of circumstances which would require a new bond from an executor or administrator. The statute provided:

“An executor or administrator may be required to give a new bond in the following cases:
“1. When the sureties upon the bond or any one of them shall die, remove beyond the limits of the State, or become insolvent.
“2. When, in the opinion of the county judge, the sureties upon any such bond are insufficient.
“3. When, in the opinion of the county judge, any such bond is defective.
“4. When the amount of any such bond is insufficient.
“5. When the sureties or any one of them petition the court to be discharged from future liability upon such bond. “6. When the bond and the record thereof have been lost or destroyed.” [Emphasis added.]

The court also was required to interpret Article 3395, Texas Revised Civil Statutes Annotated (1952), which provided:

“The sureties upon the bond of an executor or administrator, or any one of these, may, at any time, present a petition to the county judge praying that such executor or administrator may be required to give a new bond and that he or they may be discharged from all liability for the future acts of such executor or administrator, whereupon such executor or administrator shall be cited to appear and give a new bond.”

After considering the effect of Article 3395 upon Article 3392, the court concluded that the word “may” in Article 3392 does not give a court any discretion where the surety complies with the law and presents a petition for release. Rather, the court held that the surety was entitled to be discharged from any liability for any future acts of an executor or administrator.

In reaching this conclusion, the court also commented that the Legislature intended for the probate judge to require a new bond where “it indisputably appears that a bond is insolvent, or that it is insufficient, or that it is defective, . . . ” National Surety Corporation v. Ladd, supra, at 602. Accordingly, when any person interested in an estate demonstrated that a bond was insolvent, insufficient, or defective that person established the right to request a new bond and the statute required the court to order a new bond upon the exercise of that right. The word “may” in the statute did not afford the court any discretion under such circumstances. Similarly, when a consumer establishes all the elements required to recover actual monetary damages, the structure of the Consumer Protection Act, particularly the position of the word “may,” mandates that the court treble the actual damages.

In contrast to the instant provision, the Legislature in two other provisions of the statute demonstrated its knowledge of language which would explicitly provide for a range of monetary awards. Section 17.47(c) provides: “. . . the consumer protection division [of the attorney general’s office] . . . may request a civil penalty of not more than $2,000 per violation .”; and Section 17.47(e) provides: “Any person who violates ... an injunction under this section [17.47] shall forfeit and pay to the state a civil penalty of not more than $10,000 per violation, not to exceed $50,000.” It was reasonable for the Legislature to give the office of the attorney general the authority to seek a range of civil penalties and thus provide a method whereby that office can effectively discourage violations of the Act. Similarly, it was reasonable for the Legislature to provide mandatory treble damages for the individual consumer in order to provide that individual with not only a method to discourage deceptive practices, but also with the incentive to do so.

In addition to the foregoing, the declared purpose of the statute is “to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection” [Section 17.44]. The office of the attorney general, in an amicus curiae brief, forcefully argues mandatory treble damages are necessary to effectuate the Act’s purposes, asserting that treble damages would create the incentive for the individual “consumer” to file suit and thus lessen the demand for public enforcement actions. As noted in Crawford Chevrolet, Inc. v. McLarty, supra, at 661:

“It appears reasonable that it would be a heavier burden upon an individual consumer, as compared to a class, to establish a case of deceptive practice, and, because of the greater burden assumed, it would be appropriate that the recovery allowable be proportionately greater to justify or motivate his individual effort to establish the cause of action.”

The office of the attorney general also maintains that mandatory treble damages were intended by the Legislature to create a considerable deterrence to violations of the statute and that such deterrence is a necessary complement to the other remedies made available to law enforcement agencies.

In reply to the office of the attorney general, numerous amicus curiae briefs were submitted which advocated the position that treble damages are not mandatory. The following propositions were among the arguments advanced in these briefs: (1) mandatory treble damages would have a chilling effect on free speech in violation of the First Amendment of the Federal Constitution; (2) corporations, which were included in the definition of “consumer” [Section 17.45(4)] by the 1975 amendments, do not need an incentive to sue for deceptive practices; and (3) mandatory treble damages would create chaos in the marketplace and drive corporations from Texas. Some of these contentions,-such as the one listed first, are of dubious merit. Others, such as the last two, are considerations which are more properly for the Legislature rather than this court. Moreover, given the language of the Act, especially the position of the word “may,” it cannot be questioned that the Legislature intended to mandate treble damages.

Finally, the most recent amendments (1977) unequivocally demonstrate the 65th Legislature believed treble damages to be mandatory. In 1977 the 65th Legislature, Regular Session, amended the Consumer Protection Act by inserting immediately after Section 17.50 (the treble damage provision), Section 17.50A, which provides:

“Damages: Defenses. In an action brought under Section 17.50 of this sub-chapter, actual damages only and attorney’s fees reasonable in relation to the amount of work expended and court costs may be awarded where the defendant:

“(1) proves the action complained of resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid the error; or
“(2) proves that he had no written notice of the consumer’s complaint before suit was filed, or that within 30 days after he was given written notice he tendered to the consumer (a) the cash value of the consideration received from the consumer or the cash value of the benefit promised, whichever is greater, and (b) the expenses, including attorney’s fees, if any, reasonably incurred by the consumer in asserting his claim against the defendant; or
“(3) in the case of a suit under section 17.50(a)(2) [breach of an express or implied warranty], defendant proves he was not given a reasonable opportunity to cure the defects or malfunctions before suit was filed.” Tex.Laws 1977, ch. 216, § 6, at 604.

Sections 17.50A(1) and (3) reflect the Legislature’s obvious intent to provide certain defenses to treble damages for defendants who “innocently” violate the Consumer Protection Act. However, if the Legislature had originally intended for treble damages to be discretionary this amendment would have been unnecessary because the trial court or the trier of fact would have had the discretion to award only actual damages for “innocent” violations.

Considering the structure of the statute as a whole and its declared purpose, it is clear the award of treble damages is made mandatory. To the extent that Mallory v. Custer, 537 S.W.2d 141 (Tex.Civ.App.—Austin 1976, no writ), suggests a contrary result, it is disapproved. Since only those damages for mental anguish which resulted from the post-May 21, 1973 deceptive practice are to be trebled, and since the issue submitted to the jury on mental anguish did not inquire as to the amount of damages, if any, which were caused only by the violation of the Act after its effective date, the court of civil appeals correctly held that the special issue respecting mental anguish was deficient.

It is unnecessary to decide whether any of the issues in the present case could be severed pursuant to Rule 503 of the Texas Rules of Civil Procedure as the issues concerning the liability for the diminished value of the home, the amount of damages for the diminished value of the home, the liability for mental anguish, and the amount of any damages for mental anguish are so intertwined that a severance would be unfair to the parties. The entire, cause is remanded to the trial court for retrial. Upon retrial, once the amount of damages, if any, attributable to deceptive practices occurring after May 21, 1973 is determined, it is, by virtue of the language of the Act, to be trebled. Accordingly, the judgment of the court of civil appeals, which remands the cause to the trial court, is affirmed.

Justice YARBROUGH, J., notes his dissent.

      . The Consumer Protection Act, originally enacted on May 21, 1973, was amended effective September 1, 1975 and effective May 23, 1977. The references herein to the Consumer Protection Act pertain to the statute as enacted in 1973 unless otherwise indicated.

      . Section 17.50(b): “In a suit filed under this section, each consumer who prevails may obtain:
      “(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended;
      “(2) an order enjoining such acts or failure to act;
      “(3) orders necessary to restore to any party to the suit any money or property, real or personal, which may have been acquired in violation of this subchapter; and
      “(4) any other relief which the court deems proper, including the appointment of a receiver or the revocation of a license or certificate authorizing a person to engage in business in this state if the judgment has not been satisfied within three months of the date of the final judgment. The court may not revoke or suspend a license to do business in this state or appoint a receiver to take over the affairs of a person who has failed to satisfy a judgment if the person is a licensee of or regulated by a state agency which has statutory authority to revoke or suspend a license or to appoint a receiver or trustee.”

      . The jury also made findings favorable to Jackie and Cheryl Woods on their other causes of action based on a breach of a warranty of workmanlike construction, on a breach of a warranty of merchantability, and on negligent construction.

      . Section 17.46(b)(13): "(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts: . . . (13) knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service; . . ."

      . As amended effective May 23, 1977, “serv- ■ ices” means “work, labor, or service purchased or leased for use, including services furnished in connection with the sale or repair of goods.”

      . The statement that the repairs to the sewer system placed it in good working order when in fact they did not, violates Section 17.46(b)(13): “(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts: . . . (13) knowingly making false or misleading statements of fact concerning the need for parts, replacement, or repair service; . . . ” The statement also created an additional express or implied warranty to the service contract and the failure to comply with that warranty may give rise to a cause of action under Section 17.50(a)(2): “(a) A consumer may maintain an action if he has been adversely affected by any of the following: . . . (2) a failure by any person to comply with an express or implied warranty;

      . Prior to the 1971 amendments, Article 2226 was limited to “personal services rendered.”

      . The issue of whether a person who is not a “consumer” has a cause of action under the Act is therefore not reached.

      .As amended effective September 1, 1975, “consumers” clearly includes purchasers of real estate. Sections 17.45(1) and (4).

      . The question of whether a pre-May 21, 1973 sale of real estate alone can give rise to a cause of action under the Consumer Protection Act is not before this court.


author: DENTON, Justice.

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner, v. John THOMAS et ux., Respondents.
    No. B-6081.
    Supreme Court of Texas.
    July 13, 1977.
    Rehearing Denied July 27, 1977.

      Fulbright & Jaworski, Russell H. McMains, Houston, for petitioner.
    Riddle, Murphrey, O’Quinn & Cannon, Ernest H. Cannon and John M. O’Quinn, Houston, W. Jack Salyer, Bay City, for respondents.
   ON MOTION FOR REHEARING

DENTON, Justice.

The opinion of the Court dated June 8, 1977 is withdrawn, and the following opinion is substituted therefor.

This action for damages was brought by Mr. and Mrs. John Thomas for personal injuries arising out of a rear-end automobile collision in which a truck owned by Southwestern Bell Telephone Company and operated by one of its employees collided with the rear-end of an automobile owned and operated by Mr. Thomas. The trial court entered judgment on the jury verdict for the plaintiffs. The court of civil appeals upheld the trial court judgment. 535 S.W.2d 686. We reverse.

The collision occurred on October 29, 1971, on Interstate 45 between Texas City and Dickinson, Texas, in Galveston County. Interstate 45 is a four-lane divided highway with two lanes for automobiles traveling in a southerly direction, and two in the northerly direction. The roadway was straight and level; there were no curves or hills and nothing obscured the vision of the drivers.. The accident occurred in the daytime when weather conditions were clear and the highway was dry. Both cars were traveling in the right-hand lane in a northerly direction about five miles north of Texas City, when the defendant’s truck overtook and collided with the rear of the plaintiffs’ automobile, propelling the plaintiffs’ automobile to the right, off of the highway. The defendant’s truck veered and turned to the left into the esplanade. The defendant’s driver, John Cliver, Jr. testified that he was traveling approximately 65 miles per hour in a 70 mile per hour zone.

The verdict upon which judgment was rendered consisted solely of answers to special issues on damages resulting from “the occurrence in question.” No special issues on primary negligence or proximate cause were submitted by the court.

The defendant complains to this Court of the trial court’s refusal to submit tendered special issues on contributory negligence and proximate cause. In affirming the trial court’s judgment, the court of civil appeals held defendant’s requested issues were not in substantially correct form, and that there was no evidence to support their submission. The issues requested by defendant inquired (1) whether Thomas was driving at a slower rate of speed than a person using ordinary care would have driven, and (2) whether such action was a proximate cause of the occurrence in question. We think the issues were in substantially correct form. The requested contributory negligence issue included an inquiry of negligence; the conduct inquired about is cast in terms that are at variance from an ordinary care standard. Tex.R.Civ.P. 277; Southern Steel Company v. Manning, 513 S.W.2d 273 (Tex.Civ.App.1974, no writ).

One may be guilty of contributory negligence in a rear-end collision case by driving too slowly. Owens v. Rogers, 446 S.W.2d 865 (Tex.1969); Moulton v. Alamo Ambulance Service, Inc., 414 S.W.2d 444 (Tex.1967). If there was evidence to support the special issues, the trial court’s refusal to submit such issues constituted reversible error. We think that there was some evidence.

It is undisputed both vehicles were traveling in a northerly direction in the outside or right-hand lane. Mr. Thomas testified he was driving “between 50 and 55 miles an hour” when his wife reminded him he was driving “too fast.” He testified that this remark drew his attention to the speedometer and, “I was making 55, and a few more minutes I heard a lick and I was headed across the ditch.” Oliver, the driver of the defendant’s truck, testified he was driving 65 miles per hour when he first saw the plaintiffs’ car immediately before the collision. Oliver testified he could not explain how plaintiffs’ vehicle suddenly appeared. He stated: “Possibly I’d been following a car and the car swerved out to pass around this vehicle — you know how you unconsciously follow a car. And I had been, maybe, following it and it veered out. Otherwise, I don’t know.” Later Oliver testified “the only thing I remember was [sic] the fact that the car was a very dirty color that blended in real well with the road.” Oliver recalled a conversation that he had with Mr. Thomas immediately after the collision, and testified Thomas told him he was going 45 miles per hour and that his wife was hurt. He again referred to this conversation on cross-examination, and after stating Thomas said he was going 45 miles per hour, he added “but it seemed more to me like 30 or 35 miles per hour.” When Oliver was asked: “Can you tell us how fast he was going, based on what you saw?” He answered, “No, I cannot.”

The plaintiffs rely upon diver’s testimony that based upon what he saw, he could not say how fast the Thomas vehicle was going. We agree that the testimony is speculative and could not, standing alone, warrant submission of the issues requested. But this, in conjunction with Mr. Thomas’ statement that immediately before the accident he had noticed his speed, which according to his wife was “too fast,” and diver’s testimony that Mr. Thomas admitted he was going only 45 miles per hour by the time of collision, would support a conclusion on the part of the jury that the Thomases were not proceeding in a reasonable manner; specifically, that a speed of 45 miles per hour immediately after proceeding 55 miles per hour on an interstate highway was not such speed as a person using ordinary care would have chosen. It was within the jury’s province to conclude that a speed of 45 miles per hour, for an automobile which had been in the flow of traffic at a speed of 55 miles per hour, was too slow.

Because of our holding, it is unnecessary to discuss any of defendant’s other points of error. We feel compelled to point out, however, that special issues on primary negligence and proximate cause ordinarily are necessary. The parties should consider whether such issues should be submitted on retrial.

It was error to refuse submission of the defendant’s special issues on Mr. Thomas’ contributory negligence. The judgments of the trial court and the.court of civil appeals, insofar as damages were awarded for the personal injuries of Mr. Thomas and for the past and future medical expenses of Mr. and Mrs. Thomas, are reversed, and the cause is remanded for a new trial. Mrs. Thomas’ recovery of damages for personal injuries is not barred by contributory negligence on Mr. Thomas’ part. Graham v. Franco, 488 S.W.2d 390 (Tex.1972). Her claim for personal injuries is severed, and the judgments below are in that regard affirmed. The motion for rehearing is overruled.

      The issues requested were as follows:
      Do you find from a preponderance of the evidence that on the occasion in question John Thomas was driving at a slower rate of speed than a person using care would have driven?
      Do you find from a preponderance of the evidence that such action was a proximate cause of the occurrence in question?


author: REAVLEY, Justice.

text:
    TEXAS TURNPIKE AUTHORITY, Appellant, v. CITY OF FORT WORTH et al., Appellees.
    No. B-6552.
    Supreme Court of Texas.
    July 27, 1977.
    Locke, Purnell, Boren, Laney & Neely, Charles G. Purnell and Joe H. Staley, Jr., Dallas, Brown, Herman, Scott, Dean & Miles, William M. Brown, Fort Worth, for appellant.
    S. G. Johndroe, Jr., City Atty., Arthur R. Petersen, Asst. City Atty., Fort Worth, for appellee.
    Law, Snakard, Brown & Gambill, Terry Gardner, Fort Worth, for intervenor, Tom Purvis et al.
    Tim C. Curry, Dist. Atty., Gerald Sum-merford, Asst. Dist. Atty., Forth Worth, for intervenor, County of Tarrant.
   REAVLEY, Justice.

Upon petition of the City of Fort Worth the 48th District Court of Tarrant County enjoined the Texas Turnpike Authority from proceeding with a study of the feasibility of enlarging the Dallas-Fort Worth Turnpike and from expending any funds for that purpose as authorized by Resolution No. 500 passed by the Board of Directors of the Turnpike Authority on May 26, 1976. The Turnpike Authority brings this direct appeal pursuant to Art. 1738a, Vernon’s Ann.Civ.Stat., and Rule of Civil Procedure 499a.

The underlying contest has been whether the Dallas-Fort Worth Turnpike should be turned over to the State Highway and Public Transportation Commission and operated toll free henceforth, or whether enlargements and improvements should be made by the Turnpike Authority through a new bond issue to be paid by tolls for an extended period. This contest has been resolved by the Legislature during the pen-dency of this appeal. Acts 65th Leg., S.B. 194. The date of the transfer will be December 81, 1977; and the details of the transfer are prescribed. The Board of Directors of the Texas Turnpike Authority on June 1, 1977 by Resolution No. 531 recited the Act of the Legislature as rendering unnecessary further study of the feasibility of improvements to the Turnpike and resolved that Resolution No. 500 would not be pursued after May 3, 1977 (the effective date of the new legislation). While this action renders moot most issues between the parties, it leaves open the question of the validity of Resolution No. 500 prior to May 3,1977. The trial court has held Resolution No. 500 to be wholly void and has enjoined the Turnpike Authority from doing any act, including the payment for services received, thereunder.

The trial court based its judgment upon the inadequacy of the notice given in advance of the meeting at which Resolution No. 500 was passed and upon this Resolution being a breach of prior contractual agreements with the City of Fort Worth and Tarrant County.

Section 3A of Art. 6252-17, Vernon’s Ann.Civ.Stat. (The Texas Open Meeting Act) requires at least 72 hours advance posting of notice, by the Secretary of State in the case of a State governmental body, of the time and place “and subject of each meeting.” The Turnpike Authority duly posted notice of its May 26, 1976 meeting. The notice listed all of the agenda items of that meeting, which included:

Consider request of County of Dallas, City of Grand Prairie, Dallas Central Highway Committee, Dallas Chamber of Commerce, and Grand Prairie Chamber of Commerce to determine feasibility of a bond issue to expand and enlarge the Dallas-Fort Worth Turnpike

The City of Fort Worth contends that since prior resolutions of the Turnpike Authority had declared the intention of the Authority to transfer the Turnpike as a free road under State Highway operation as soon as the existing bonds were paid, it was necessary that the notice specifically state that consideration would be given to the study of a course of action at variance with prior declaration of intention. This contention is not upheld. There is no necessity to post copies of proposed resolutions or to state all of the consequences which may necessarily flow from the consideration of the subject stated. The notice complied with the statute. See Lower Colorado Riv. Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex.1975).

In 1964 the City of Fort Worth, Tar-rant County, Texas Highway Department and Texas Turnpike Authority entered into an agreement whereby the western terminus of the Turnpike was changed to be a free road for access to downtown Fort Worth from Oakland Boulevard. To compensate the Turnpike Authority for loss of toll income, and to satisfy the Trust Indenture for its bondholders, the City of Fort Worth and Tarrant County delivered a total of $2 million to the Authority. There was no obligation to return or repay any part of this money to the City or County. In subsequent dealings and resolutions the Turnpike Authority has promised to pay to them the balance in a special trust fund, originally created with money received from them, when the outstanding bonds are fully paid. We find no binding commitment by the Turnpike Authority to terminate the operation of the Turnpike at the same time.

It is true that the Board of Directors as late as May 2, 1975, resolved to make no more capital improvements and to transfer the Turnpike when the existing bonded indebtedness was paid. This intention may or may not have been changed if the circumstances and feasibility study justified that change. Under the original statute, Art. 6674v, Sec. 10, Vernon’s Rev.Civ.Stat., decisions as to the improvement or enlargement of the Turnpike were the official responsibility of the Board of Directors of the Turnpike Authority.

The record discloses that Texas Turnpike Authority was entitled to the summary judgment which it sought. The judgment of the trial court is reversed and the injunction dissolved. Judgment is here rendered that the City of Fort Worth and all Interve-nors take nothing by this suit against Texas Turnpike Authority. No motion for rehearing will be entertained.


author: ROBERTS, Judge.

text:
    Leon Davis BROWN and Percy Eugene Williams, Appellant, v. The STATE of Texas, Appellee.
    No. 52675.
    Court of Criminal Appeals of Texas.
    June 29, 1977.

      James E. Davis, Texarkana, Ark., and Charles M. Bleil, Texarkana, on appeal, for appellant.
    Lynn Cooksey, Dist. Atty., Texarkana, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

These are appeals from convictions for capital murder. Appellants were tried jointly and the two punishment issues submitted to the jury were answered in the negative. Accordingly, the trial court assessed punishment for each appellant at life confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Briefly, the record reflects that the deceased was murdered in the course of a robbery while he was working at a pawn shop. The evidence shows that the deceased died as a result of gunshot wounds inflicted upon him. The appellants were arrested approximately 20 minutes after the shooting took place. Each appellant gave a voluntary statement, both admitting the robbery and one admitting the shooting.

Appellants initially contend that “ . . . Article 19.03, Texas Penal Code, is unconstitutional for the reason the caption or title to the 1973 Act H.B. 200, appearing in Chapter 426 Acts, regular session of the 63rd Legislature of 1973, fails to meet the requirement of Article III, Section 35 of the Constitution of Texas, in that it embraces more than one subject and is therefore insufficient to inform the Legislature and the public of the full effect of the amendment.”

In Burns v. State, 556 S.W.2d 270 (Tex.Cr.App., delivered May 3, 1977) and Smith v. State, 540 S.W.2d 693 (Tex.Cr.App.1976), the same contention was raised and it was rejected by this Court.

Appellants’ first ground of error is overruled.

Appellants next complain that Article 37.071, V.A.C.C.P. “ . . . confers upon the trial court standardless discretion in determining the evidence which may be presented as to any matter relative to sentence.”

We note that Article 37.071 provides that “This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas.” See also, Gholson v. State, 542 S.W.2d 395, 397-398 (Tex.Cr.App.1976).

Appellants’ second ground of error is overruled.

By their fifth ground of error, appellants contend that Article 37.071, V.A.C. C.P., is unconstitutional “ . . . because the statute shifts the burden of proof to the defendant by requiring that in order to answer an issue (‘No’), ten (10) or more jurors must agree.”

At the guilt stage of the trial, in order to be acquitted, the defendant must receive 12 favorable votes. In order to convict, the State must receive 12 favorable votes. At the punishment stage of the trial, the procedure is the same with the exception that if the defendant has ten votes he receives a favorable verdict instead of a hung jury. Furthermore, Article 37.071(c) provides that “The State must prove each issue submitted beyond a reasonable doubt . . . ” and in the case at bar the jury was so instructed.

Appellants’ fifth ground of error is overruled.

By their sixth ground of error, appellants contend that Article 37.071 is unconstitutional “ . . because it denies defendants the right to an impartial jury in assessing punishment because Article 37.-071(b)(1) and (3) require the same finding as a finding of guilt under Article 19.03, Texas Penal Code.”

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court of the United States upheld the Texas capital murder procedure and, in speaking of the enumerated punishment issues provided by Article 37.071, stated that, “[t]hus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.” Id., at 272, 96 S.Ct. at 2956.

While the second statutory question was discussed by the Supreme Court in Jurek, the Court had only this to say about the first and third questions enumerated in Article 37.071:

“The Texas Court of Criminal Appeals has not yet construed the first and third questions (which are set out in the text, supra, at 269, 96 S.Ct. at 2954-2955); thus it is as yet undetermined whether or not the jury’s consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry. For example, the third question asks whether the conduct of the defendant was unreasonable in response to any provocation by the deceased. This might be construed to allow the jury to consider circumstances which, though not sufficient as a defense to the crime itself, might nevertheless have enough mitigating force to avoid the death penalty — a claim, for example, that a woman who hired an assassin to kill her husband was driven to it by his continued cruelty to her. We cannot, however, construe the statute; that power is reserved to the Texas courts.” Id., at 272, n. 7, 96 S.Ct. at 2956. i

However, in this Court’s opinion in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975), we addressed the purpose of the punishment issues provided for in Article 37.071:

“These questions direct and guide [the jury’s] deliberations. They channel the jury’s consideration on punishment and effectively insure against the arbitrary and wanton imposition of the death penalty.” Id., at 939.

We hold that the punishment issues enumerated in Article 37.071(b)(1) and (3) serve the purpose of guiding the jury’s punishment deliberations and do not deny a defendant the right to an impartial jury in assessing punishment.

Appellants’ sixth ground of error is overruled.

In grounds of error three, four, seven and eight, appellants contend that the Texas capital murder procedure is unconstitutional because it “ . . . allows the jury to decide case by case whether or not the death penalty shall be applied,” “ . confers upon the jury the power to determine the defendant’s proclivity to commit criminal acts of violence in the future without setting forth any guidelines . . . ,” “ . . .is too vague to be interpreted by reasonable men,” and “ . . . makes an unreasonable classification in violation of rights secured to appellant by the equal protection clause . . . .”

Appellants argue the above points together and state that “The argument regarding the above points of error is essentially the same for each and raises the constitutional infirmities of the Texas death penalty statutes . . . .”

Appellants’ contentions were answered adversely to them by the Supreme Court’s decision upholding the constitutionality of the Texas death penalty procedure in Jurek v. Texas, supra. See also, Jurek v. State, supra.

Appellants’ remaining grounds of error are overruled.

The judgment of the trial court is affirmed.


author: GREEN, Commissioner.

text:
    Ivary JAMES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 52861.
    Court of Criminal Appeals of Texas.
    June 29, 1977.
    Rehearing Denied Sept. 14, 1977.
    Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Dale G. Markland, and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from a conviction for aggravated rape in which the punishment was assessed at ninety-nine years.

The record reflects that appellant was fifteen years six and a half months old when the alleged offense was committed on May 13,1975, and that he was sixteen years four days of age at the time of the trial on November 3, 1975. A supplemental transcript reflects that at a hearing in the Juvenile Court of Dallas County June 17, 1975, prior to the presentment of the indictment herein, with appellant, his attorney and his guardian-ad-litem present, that court made findings in accordance with V.T.C.A. Family Code, Sec. 54.02, and waived jurisdiction of this cause and transferred jurisdiction over appellant “to the appropriate Criminal District Court or District Court of Dallas County, Texas, for proper criminal proceedings and do hereby certify said action.” The clerk of the Juvenile Court was directed “to transmit forthwith to the proper Criminal District Court or District Court of Dallas County, Texas, this written order and findings of said Juvenile Court of Dallas County, Texas, and said complaints attached hereto.” We conclude that the trial court properly exercised jurisdiction over this cause and over appellant. See V.T.C.A. Family Code, Sec. 54.02. Cf. Bannister v. State, Tex.Cr.App., 552 S.W.2d 124 (1977).

The sufficiency of the evidence is not challenged. The State’s evidence reflects that on the morning of May 13, 1975, as prosecutrix, a 45 year old widow, was leaving the door of her apartment, No. 1042, to go to work she noticed someone “peeking through the door” of apartment No. 1045 looking at her. About 5:05 p.m., as she returned from work and, after exiting from her car as she was about to enter the building, appellant assaulted her and, placing a knife at her throat and threatening to “slice” her to pieces, forced her into apartment No. 1045. He told her he was the man who was peeking at her earlier and that he watched her leave and had been waiting for her all day. Then, using force and threatening to inflict imminent serious bodily injury to her, and still holding the knife, he raped her twice and attempted to do so another time. He next bound her hands and feet with portions of her pantyhose and stole money from her purse. Prosecutrix was able to release herself and ran screaming and partly undressed to the parking lot, and then to the office, where she reported the offense. As she was being assisted back to the apartment where she had left some of her clothes, she saw appellant in the custody of a security guard. She then went to a hospital for medical attention.

Appellant, as a witness in his own behalf, denied any knowledge of the rape of prose-cutrix. He testified he had moved into apartment 1045, occupied by his brother-in-law, two days prior to the alleged offense. He denied having seen prosecutrix leave the building that morning, stating he stayed in bed until after twelve noon. At about 5:00 p.m. he talked with “a Mexican guy who worked there” at the patio door, being the back door, of his apartment, and then he left through the patio door for a walk. After walking about an hour, and as he was returning, he saw a crowd gathered near his apartment. At this time he was cursed by the crowd, some of whom had bricks and bottles, and he ran. He was arrested shortly after that by a security guard.

Appellant initially complains of the admission of evidence of an extraneous offense committed two years and nine months prior to the instant offense.

After appellant testified, the State offered the testimony of a witness from Tampa, Florida, of a rape committed on her by appellant on August 12, 1972. In the absence of the jury, she testified that on that date in Tampa she had entered her car, the windows being open, after doing some shopping, when appellant, whom she had seen earlier when she had entered a store, approached her and, exhibiting a knife in a threatening manner and making threats to harm her, caused her to permit him to enter the car. He then forced her to drive, eventually, to the “city garbage” location, where, by holding the knife to her throat and threatening to kill her, he raped her on the back seat of the car and stole money from her purse. He then had her take him back to where he had entered her car. At the hearing before the court, appellant objected to this testimony on the ground that appellant was a juvenile at the time of the offense, and could not be impeached with either juvenile convictions or juvenile transactions. His objection was overruled. When the testimony was offered before the jury, appellant prior to its admission additionally objected as follows:

“Judge, at this time for record purposes we’re going to object again and further urge that as an extraneous offense this was much too distant for the time that this offense occurred to possibly be considered.”

It was the State’s theory, as the prosecuting attorney explained at the hearing, that the evidence was admissible “to rebut the defensive theory, to show the intent of the defendant, and to rebut his alibi defense, go to his identity, also, showing a common mode of operation or modus operandi, rebut the defensive theory, show his intent and the identity, your honor.” The prosecuting attorney stated further that the State had no intention of offering evidence before the jury of any conviction of appellant as a juvenile, but only the facts of the offense as “an exception under the extraneous offense rule.”

Appellant’s objection was overruled, and the witness was permitted to testify before the jury of the details of the 1972 rape on her. No evidence of his conviction in juvenile court was offered to the jury by the State.

Appellant’s testimony reflected his theory and defense, and raised the issue of alibi and identity. We quote as follows from the majority opinion in Cameron v. State, Tex.Cr.App., 530 S.W.2d 841.

“Evidence that would also prove a separate offense is admissible when offered on the issue of identity only (1) if identity is a controverted issue and (2) if there are distinguishing characteristics common to both the extraneous offense and the offense for which the defendant, is on trial. E. G. Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App. 1974); Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App. 1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App. 1974); Lee v. State, 496 S.W.2d 616 (Tex.Cr.App. 1973); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App. 1972). A defendant’s denial of the commission of the crime and his reliance on the defense of alibi makes identity a controverted issue. Lee v. State, supra; cf. Redd v. State, 522 S.W.2d 890 (Tex.Cr.App. 1975); Franklin v. State, 488 S.W.2d 826 (Tex.Cr.App. 1972). Since the appellant here denied that he committed the offense and offered an alibi defense, identity is a controverted issue. We must then determine whether there were distinguishing characteristics common to both the extraneous offense and the offense for which the appellant was on trial — in other words, would the evidence that also proved the robbery at the Ready-Mart Food Store aid in determining whether the appellant is the person who committed the offense at SIC?
“In Ford v. State, supra, it was said the common distinguishing characteristic may be the proximity in time and place of the extraneous offense to the offénse for which the accused is being tried, or the common element may be the mode of commission of the criminal offenses. In Ransom v. State, supra, it was said that both proximity in time and place and the common mode of the commission of the offense were present. There the robberies were committed within three days time and a confederate acted with the defendant in both robberies.
“In this case although both robberies were committed in Lubbock, they were separated in time by eight months. The robbery of the grocery store was committed by two black men with a pistol. The robbery at SIC was committed by one black man with a pistol. (The State argues that a second person was the driver of the car in which the appellant escaped from the robbery at SIC.) We find no distinguishing characteristics common to both the extraneous offense and the offense for which the appellant is on trial. The admission of the evidence of the extraneous offense, the robbery at the Ready-Mart Food Store, cannot be characterized as harmless error; its admission in evidence was reversible error. Ford v. State, supra.”

McDonald v. State, Tex.Cr.App., 513 S.W.2d 44, upheld a conviction for sodomy where the issues of identity, alibi, and guilty knowledge were raised by the evidence. After such fact issues were raised by defensive testimony, the State introduced testimony of several acts of sodomy committed by the defendant on others at various times prior to the offense for which he was on trial. One of these witnesses, Jesse _, testified that on about ten occasions the defendant had committed acts of oral sodomy with him. In our opinion affirming the conviction we said:

“Neither are we impressed with appellant’s contention that the act upon Jesse - was too remote. In Robledo v. State, 480 S.W.2d 401 (Tex.Cr.App. 1972), we held that introduction of an extraneous offense which occurred four years and three months before the offense on trial was reversible error since the extraneous offense was too remote. Yet in the instant case, the extraneous offense and the offense on trial are separated by approximately one year. This fact coupled with the other extraneous offenses occurring near the date of the primary offense, is sufficient to show a continuing course of conduct. For these reasons, we are unable to hold that such testimony was too remote. The testimony showed and explained the unnatural attention and the unnatural conduct which appellant showed toward Clemente. Under these facts, it was relevant, admissible and not too remote.” (Emphasis added.)

In the instant case, there was no proximity in time or place of the extraneous offense to the offense for which appellant was on trial. Two years nine months and the width of several states intervened between the commission of the two crimes. No other offenses “sufficient to show a continuing course of conduct” as in McDonald, supra, and in Voelkel v. State, Tex.Cr.App., 501 S.W.2d 313, were proved. The common characteristics evidently relied on by the State and the trial court were that in both instances a forcible rape was committed on an adult woman by a black boy using a knife, and on each occasion he had seen the victims earlier on the day he committed the rape, and in each instance the rapist stole money from the victim’s purse before leaving. On the other hand, we note that one rape was committed in an apartment occupied by the rapist, and in the other it was in the victim’s car. In the instant case the prosecutrix testified appellant assaulted her three times in the apartment and then tied her before preparing to leave. In the extraneous offense, the victim was raped once in her car and then, after taking her attacker to the place he had entered the car, she was permitted to proceed unhindered.

Under all the circumstances of this case, we conclude that remoteness of time of this particular extraneous offense, with no evidence of other intervening similar offenses sufficient to show a continuing course of conduct, together with the other facts and circumstances, were such as to render the evidence of the rape in Florida two years and nine months prior to the instant offense, when appellant was less than 13 years old, to be inadmissible, and that prejudicial error resulted in its admission over the objection of appellant made when such evidence was offered before the jury. See Cameron v. State, supra; Robledo v. State, supra; McDonald v. State, supra.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . Criminal District Court No. 4 of Dallas County.

      . The appellate record, including records from a Florida juvenile court, introduced before the court only by the State, reflects that appellant was born October 30, 1959 and was twelve years nine months of age when the Florida rape occurred.