author: DENTON, Justice.

text:
    Gloria WARD, Petitioner, v. CHARTER OAK FIRE INSURANCE COMPANY, Respondent.
    No. B-7917.
    Supreme Court of Texas.
    Jan. 10, 1979.
    Rehearing Denied Feb. 7, 1979.
    Ralph C. Jones, of Carter, Jones, Magee, Rudberg, Moss & Mayes, Dallas, for petitioner.
    David R. Noteware, of Thompson, Knight, Simmons & Bullion, Dallas, for respondent.
   DENTON, Justice.

The sole question in this case is whether Gloria Ward filed timely notice of her intention to appeal from a ruling of the Industrial Accident Board, as required by Section 5 of Article 8307 of the Texas Revised Civil Statutes. The trial court found that Ward had not filed timely notice and dismissed the cause for want of jurisdiction. The court of civil appeals affirmed. 567 S.W.2d 934. We reverse the judgments of the courts below and remand the cause to the trial court.

Charter Oak Fire Insurance .Company issued a worker’s compensation insurance policy covering Safeway Stores Incorporated’s employees. The policy covered Gloria Ward. Following Ward’s injury while working for Safeway, the Industrial Accident Board rendered a final ruling on June 28,1977. Ward mailed her notice of intention to appeal to the Board on July 12, fourteen days after the Board’s ruling. The notice arrived at the Austin post office on July 15. The envelope containing the notice was returned to Ward on July 18, twenty days after the Board’s ruling. The United States Post Office stamped the envelope “POSTAGE DUE ll<p” and “RETURNED TO SENDER ADDRESSEE REFUSES TO PAY POSTAGE DUE.” Charter Oak Fire Insurance Company concedes that no postage was actually due and that the notice was therefore erroneously returned. Ward remailed the notice on July 18 and the notice was accepted by the Industrial Accident Board on July 20, two days after the expiration of the twenty-day filing period allowed by the Worker’s Compensation Law.

Section 5 of Article 8307 provides, in pertinent part:

Any interested party who is not willing and does not consent to abide by the final ruling and decision of [the Industrial Accident Board] shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision.

Section 5 has been strictly construed to mean that the above notice provision is not complied with when the notice is mailed and should have arrived at the Board within twenty days of the Board’s ruling, but arrived late because of a mistake of the United States Post Office or because the twentieth day falls on a legal holiday. Yancy v. Texas General Indemnity Co., 425 S.W.2d 683 (Tex.Civ.App.—Tyler 1968, writ ref’d n. r.. e.); Taylor v. Royal Indemnity Co., 276 S.W.2d 412 (Tex.Civ.App.—Galveston 1955, no writ); Fidelity & Casualty Co. of New York v. Millican, 115 S.W.2d 464 (Tex.Civ.App.—San Antonio 1938, writ ref’d). Cf., American Motorist Insurance Co. v. Box, 531 S.W.2d 401 (Tex.Civ.App.— Tyler 1976, writ ref’d n. r. e.); American General Insurance Co. v. Kohn, 425 S.W.2d 688 (Tex.Civ.App.—Austin 1968, no writ); Texas Employers’ Insurance Ass’n v. Cook, 55 S.W.2d 205 (Tex.Civ.App.—Waco 1932, no writ). The rationale underlying this statutory construction is that the United States Post Office is the agent of the party that selects the mail as the vehicle of delivery; therefore, any delay resulting from the Post Office’s negligence is attributable to the sender. See, e. g., American Motorists Insurance Co. v. Box, supra at 405.

The above construction and rationale would lead to a harsh and inequitable result in this case. We are confronted with the fact that Gloria Ward, employing a method of giving notice that is almost universally recognized, deposited her notice of intention to appeal in the mail at a time when it should have reached the Industrial Accident Board within twenty days of the Board’s ruling. Because of a Post Office mistake beyond Ward’s control, the notice was not accepted by the Board until two days after the expiration of the twenty-day period. As a result, Ward has been denied her day in court.

A full reading of the Worker’s Compensation Law reveals that the Legislature did not intend this result. The Worker’s Compensation Law is to be liberally construed to effectuate the remedies which it grants. See Tate v. Standard Accident Insurance Co., 32 S.W.2d 932 (Tex.Civ.App.—Beaumont 1930, writ ref’d); Travelers Insurance Co. v. Johnson, 131 S.W.2d 242 (Tex.Civ.App.—Beaumont 1939, writ dism’d judgmt cor.). We therefore conclude that if the notice of intention to appeal from a ruling of the Industrial Accident Board is sent to the Board by first-class United States mail in an envelope or wrapper properly addressed and stamped, and the notice is deposited in the mail one day or more before the expiration of the twenty-day statutory period and received by the Board not more than ten days after the expiration of the statutory period, then the notice shall be deemed timely filed. In the interest of uniformity, this construction of Section 5 of Article 8307 coincides with the notice provisions of Rule 5 of the Texas Rules of Civil Procedure. To the extent that any cases conflict with this construction of Section 5, they are overruled.

Since Gloria Ward mailed her notice within the twenty-day statutory period and it arrived at the Industrial Accident Board not more than ten days late, we hold that she complied with Section 5 of Article 8307. The judgments of the courts below are reversed and the cause is remanded to the trial court for further proceedings.

SPEARS, J., not sitting.

      . Statutory references are to Vernon’s Texas Civil Statutes Annotated.

      . All relevant dates fall within the year 1977.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge. PHILLIPS, Judge, CLINTON, Judge,

license: Public Domain

text:
    David Castro ORDUNEZ, Petitioner, v. Woodrow W. BEAN, II, Presiding Judge, 243rd District Court of El Paso County, Texas, Respondent.
    No. 60322.
    Court of Criminal Appeals of Texas.
    April 18, 1979.
    C. R. Kit Bramblett, El Paso, for appellant.

      Steve W. Simmons, Dist. Atty., and Paul J. Kubinksi, Asst. Dist. Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

TOM G. DAVIS, Judge.

This is an original action brought by David Castro Ordunez seeking a writ of mandamus directing the Honorable Woodrow W. Bean, II, Judge of the 243rd Judicial District Court of El Paso County, Texas, to vacate his order of November 20, 1978, in Cause No. 30,620. In this order respondent refused to set aside the indictment for felony theft currently pending against the petitioner.

On November 15, 1978, petitioner filed a motion to set aside the indictment on the grounds that the State had failed to comply with the requirements of the Speedy Trial Act. The petitioner alleged that he had not been “given a trial within 120 days from the commencement of [the] criminal action against” him. See Chapter 32A, V.A.C.C.P. On November 20, 1978, a hearing was held in the respondent’s court on petitioner’s motion. Evidence was offered as to the sequence of events in this cause and the congested condition of the criminal dockets in the district courts of El Paso County. At the conclusion of the hearing, the trial court overruled petitioner’s motion. At the specific request of the petitioner, his trial was stayed by the district court pending the disposition of this application for writ of mandamus.

The respondent made the following findings of fact:

“1. The Defendant, David Castro Ordu-nez was arrested on December 12, 1976.
“2. The Defendant was charged on December 12th, 1976 with theft over $200.00.
“3. The Defendant was indicted on January 20th, 1977, for the offense of theft over $200.00.
“4. The Defendant was arraigned on February 17, 1977.
“5. The Defendant pled not guilty.
“6. The case was set down for trial on May 2nd, 1977 but was not tried and was passed over.
“7. The Defendant David Castro Ordu-nez did not ask for nor did he receive a continuance.
“8. The case was set down for trial a second time for November 20th, 1978.
“9. The District Attorney filed announcements of ready on this case on June 30th, 1978, and again on July 3rd, 1978 as he did in all 1,200 cases which were pending in El Paso County at that time.
“10. Said notices did not go out to the Defendant or to his attorney.
“11. The District Attorney never announced ready before an assembled jury panel in this case.
“12. There are ten (10) District Courts in El Paso County, Texas.”

The respondent also made the following conclusions of law:

«* * *
“The Court finds that exception number ten (10) of Section 4 of the Speedy Trial Act is applicable in the case at Bar because the Criminal Docket in El Paso County is highly over crowded.”

Construing the amendment to Art. 5, Sec. 5, of the Texas Constitution, effective January 1,1978, this Court in Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978), found: The purpose of this amendment was to confer upon this Court additional powers to grant extraordinary writs in cases regarding criminal matters.

Article 32A.02, V.A.C.C.P. (effective July 1, 1978), provides in pertinent part:

“Sec. 1. A court shall grant a motion to set aside an indictment, ... if the state is not ready for trial within:
“(1) 120 days of the commencement of the criminal action if the defendant is accused of a felony;
* * * * * *
“Sec. 2. (a) . [A] criminal action commences for purposes of this article when an indictment, against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.”

In Wade v. State, 572 S.W.2d 533 (Tex.Cr.App.1978), this Court held that the time limits prescribed by Art. 32A.02, V.A.C.C.P., began to run on July 1, 1978, for all criminal cases then pending on the trial court’s docket. It is clear from the record before us that at the time the petitioner filed his motion to set aside the indictment more than 120 days had elapsed since July 1, 1978, and that the petitioner had not yet been tried.

Article 32A.02, Sec. 4, V.A.C.C.P. (effective July 1,1978), provides in pertinent part as follows:

“In computing the time by which the state must be ready for trial, the following periods shall be excluded:
******
“(10) Any other reasonable period of delay that is justified by exceptional circumstances.”

Under the provisions of Art. 32A.02, Sec. 4(10), supra, the respondent was required to determine if the overcrowded dockets were an “exceptional circumstance” within the contemplation of Sec. 10. Under our holding in Wade v. State, supra, the respondent would have properly considered the question of congestion only from July 1, 1978, to the date of the hearing. It was necessary for respondent to determine whether this congestion was such a temporary situation as to be an “exceptional circumstance” or whether in all probability this situation would continue and thus constitute the norm. The trial court’s finding that overcrowded dockets are an “exceptional circumstance” is necessarily a judicial determination rather than a ministerial act.

In State ex rel. Vance v. Routt, 571 S.W,2d 903 (Tex.Cr.App.1978), this Court adopted the traditional two-step test which a petitioner must meet in order to obtain relief by writ of mandamus. See 37 Tex. Jur.2d, Mandamus, Sec. 48. The petitioner must first demonstrate that no other adequate remedy at law is available. In State ex rel. Vance v. Routt, supra, we held that where the State had no right to appeal from a final judgment in a bond forfeiture proceeding, it had “no other adequate remedy to challenge the actions of the trial court.”

The second limitation on this Court’s mandamus jurisdiction set out in State ex rel. Vance v. Routt, supra, is that mandamus is not available to compel a discretionary as distinguished from a ministerial act. This Court stated:

“The writ may issue in some instances to compel the entry of a judgment, but it will not be issued to compel the entry of a specified type of judgment [unless] . . that judgment is the only proper one that can be rendered in the circumstances . . . .”

This Court concluded that:

“For the petitioner to prevail in this application for writ of mandamus he must demonstrate both that there was only one proper judgment that could be entered and that the entry of the judgment based upon the facts found by the court was in essence a mere ministerial act. See e. g., State ex rel. Pettit v. Thurmond, supra [516 S.W.2d 119 (Tex.1974)].”

In the instant case, it is clear that petitioner has failed to meet either of the tests. Appeal is available to the petitioner in the event of his conviction to test any asserted denial of his right to a speedy trial, both on a statutory and constitutional basis. See and compare Chapter 32A, V.A.C.C.P., with Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). In United States v. MacDonald, 435 U.S. 850, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978), it was held that a defendant may not take an interlocutory appeal from a federal district court’s pretrial order denying a motion to dismiss because of an alleged violation of his right to a speedy trial. The Supreme Court in MacDonald stated:

“Allowing an exception to the rule against pretrial appeals in criminal cases for speedy trial claims would threaten precisely those values manifested in the Speedy Trial Clause.”

Petitioner has also failed the second test of State ex rel. Vance v. Routt, supra, in that for the reasons set out above the trial court’s finding of a statutory exception necessarily involves an exercise of judicial discretion.

Petitioner’s application for writ of mandamus is denied.

ROBERTS, J., dissents.

PHILLIPS, Judge,

concurring and dissenting.

I concur in the denial of this application for a Writ of Mandamus against the trial judge in this cause. Although I have serious reservations whether a pro forma paper announcement of ready by the State is sufficient to satisfy the requirement of Article 32A.02, V.A.C.C.P, the record before us supports the State’s contention that it was ready.

Besides the two announcements of ready, the record shows that an examining trial had been held on January 6, 1977, wherein the State successfully shouldered its burden of showing a magistrate that there is sufficient evidence that the accusation is probably true (probable cause) and the accused should be committed. See Chapter 16, V.A. C.C.P. There is also an application for subpoenas by the State for six witnesses to appear in court on May 2, 1977 — the first trial setting. Finally, the Assistant District Attorney called by petitioner testified that the State was indeed ready for trial in all 1200 causes wherein announcements of ready were filed.

The petition for mandamus relief should be denied on its merits and its lack of evidentiary support.

I dissent to the discussion and conclusion reached on whether this case presents a proper mandamus cause.

With respect to whether there exists an adequate alternative remedy at law, the majority indicates that traditional appellate process embodies such. However, an appeal necessarily requires a trial of the charges as a condition precedent. The whole purpose of the Speedy Trial Act (Chapter 32A, V.A. C.C.P.) is to remedy inexcusable delays with a dismissal of the charges with prejudice. See Article 32A.02, Sections 1(1) and 2(a), (c), supra. Thus, any remedy accorded one deprived of the rights created under Chapter 32A, supra, is too little, too late, and therefore an inadequate alternative remedy. See 37 Tex.Jur.2d, Mandamus, Section 14.

The majority also declines to recognize this petition as sufficient for mandamus consideration because it decides any trial court conclusion that the facts have shown that an exception under Section 4 of Article 32A.02, supra, exists is a discretionary, as opposed to ministerial, action. First, such treatment of findings in cases of extraordinary writ applications is in itself extraordinary. Ordinarily, the findings and conclusions of the trial courts in such proceedings are considered, but have never been binding on this Court. Ex parte Hagans, Tex.Cr.App., 558 S.W.2d 457; Ex parte Williams, Tex.Cr.App., 561 S.W.2d 1.

Second, even should we embrace such a characterization of the trial court’s eviden-tiary role in extraordinary writ proceedings, mandamus should be available to protect our citizenry from any abuse of such “discretion.” 37 Tex.Jur.2d, Mandamus, Section 22. If the evidence in the record did not support the trial judge’s ruling, as I believe it did, entry of an order denying the Motion to Dismiss would be an abuse of discretion. This position is supported by the clear mandatory language of the statute. 37 Tex.Jur.2d, Mandamus, Sections 3, 6, 15, and 16; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759 (1947).

The rule denying mandamus with respect to matters of a discretionary character is not without limitation, and the writ may issue in a proper case to correct a clear abuse of discretion. When all of the facts and circumstances of a case unquestionably require a court to exercise a discretionary power to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, there is no room for the exercise of discretion.
37 Tex.Jur.2d, Mandamus, Section 46, p. 672.

Besides support for the validity of the State’s announcement of ready, there was other evidence indicating an effort on the part of the El Paso County district courts to effectuate the Speedy Trial Act.

I dissent to what I perceive as unnecessarily broad pronouncements concerning the general availability of mandamus and alternative legal relief in this type of cause. I concur, however, in the denial of relief here.

CLINTON, Judge,

concurring.

The Texas Speedy Trial Act deprives prosecuting attorneys of their right to exercise judgment and discretion in performing their exclusive prosecutorial functions. It also trenches upon power and authority of state trial courts to manage their affairs, including control of their dockets as in Moore v. State, 94 Tex.Cr.R. 489, 251 S.W. 1086 (Tex.Cr.App.1923) and Art. 33.08, V.A. C.C.P. The Act is therefore subject to an attack that its effects violate the separation of powers provisions of Article II of the Constitution of the State of Texas.

The Court, however, not being pressed in this cause to consider constitutional assaults on the act, practically puts a future opportunity to do so out of reach. Thus, a defendant is said to have an adequate remedy at law through appeal — yet one who is protesting that he was denied a speedy trial under the act is not likely to claim that it is unconstitutional — and if mandamus will lie solely to compel rendition of the “only one proper judgment” that must follow from facts found by the trial court, State ex rel. Vance v. Routt, 571 S.W.2d 903 (Tex.Cr.App.1978), presumably we must await the day a trial court grants a motion to dismiss on its finding that the State was not ready for trial and the State comes to this Court contending the only proper judgment was to deny the motion because the act is unconstitutional. But the opinion of the Court today reduces even further the likelihood of that event.

If we are not to address the constitutionality of the Texas Speedy Trial Act, this Court must at least adhere more closely to its terms, rather than expand contingencies for avoiding them, to the end that affected and interested parties will come to realize that, as written, the act is not the effective piece of equipment it was touted to be. By holding, as I believe the Court should, that the key to operation of the act is whether the State is “ready for trial” within the applicable prescribed time period, we anticipate the day the State asserts that the legislative effort to dictate its readiness is unconstitutional.

After a hearing on the motion to set aside indictment and based upon the testimony and documentary evidence admitted, the respondent made findings of fact set out in the opinion of the Court. Upon the findings of fact and his interpretation of the act, the respondent made two related conclusions of law:

“1. The term ‘state’ as used in Chapter 32A of the Speedy Trial Act includes the Court as well as the District Attorney’s Office.
2. The Court finds that exception number ten (10) of Section 4 of the Speedy Trial Act is applicable in the case at Bar because the Criminal Docket in El Paso County is highly over crowded.”

From the two conclusions of law, that respondent made a judicial determination is patent. For reasons about to be stated, however, I believe that both conclusions are erroneous and, therefore, do not support the order denying motion to dismiss the indictment.

Confronted with a question of statutory interpretation and construction, this Court —indeed, any court — seeks to ascertain the legislative intent and purpose and, perforce, the meaning of its words, terms, phrases, clauses and other segments of the act under consideration. When the act is, in turn, drawn from or modeled after a prior writing that is similar in objective and language, our task may be accomplished more easily and more certainly. Moreover, present understanding is often aided by appreciation of historical developments concerning the matter at hand. To such extrinsic materials I now turn for examination.

In criminal prosecutions the “right” of an accused to a speedy public trial is constitutionally provided by the Sixth Amendment to the Constitution of the United States and Article I, Section 10 of the Constitution of Texas. It may also be said that the same “righf’.in civil cases is contemplated by the Due Process Clause of the Fifth Amendment to the Constitution of the United States and the Due Course Provision of Article I, Section 19 of the Constitution of Texas. Merely stating the guarantee, however, did not effectuate it. When delay in trial of cases, especially criminal prosecutions, became so intolerable, demands for remedial action came from many quarters. Response with respect to trials of civil cases is not particularly germane here, so I pre-termit any further exploration of that area, remarking only that efforts to solve the problem of denying justice by delaying it are still underway. As to our immediate concern, movement of criminal trials, studies were made, remedial plans proposed and, ultimately in the federal system, congressional action was taken.

To the claim of a criminally accused for a speedy trial — more accurately, being relieved of facing trial at all because of delay — the response of the Supreme Court of the United States came in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). There the court abandoned its case by case approach and pronounced a formulation by which four stated factors were to be weighed in deciding whether the right to speedy trial had been violated. Rejecting the suggestion that specified time periods be provided, the court conceded that its doing so would simplify determination of the issue by lower courts, yet insisted:

“But such a result would require this Court to engage in legislative or rule making activity, rather than in the adjudicative process to which we should confine our efforts.” Id. 407 U.S. at 523, 92 S.Ct. at 2188.

Nevertheless, lower federal courts in several circuits had already engaged in that activity and, when mandated by Rule 50(b) of the Federal Rules of Criminal Procedure to do so in 1973, each federal district court began to “prepare a plan for the prompt disposition of criminal cases.” On the congressional front, the Speedy Trial Act of 1974 was enacted, 18 U.S.C.A. § 3161 et seq.

More than a right constitutionally afforded an accused, the notion that criminal prosecutions be tried speedily is in the public interest, the rationale being that prompt disposition of pending cases and swift punishment imposed on the guilty serve to protect the citizenry. In Texas the courts more or less shared the federal experience in the absence of authoritative guidelines or mandates. Then, in 1977, the Governor called upon the Legislature for passage of a speedy trial act. The result was Chapter 32A, V.A.C.C.P. to become effective July 1, 1978, more than a year after its approval. Since they were already in place, if the Legislature used as a pattern one of the plans, models or acts in the federal system, a determination of meaning of the State terms is aided by extant constructions of the federal pattern.

As already noted, the key to the time limitations prescribed by Article 32A.02, V.A.C.C.P., is whether “the state” is “ready for trial” within a scheduled period of days from commencement of a criminal action. Similarly, some federal circuits’ and the Rule 50(b) plans require that “the government must be ready for trial” within prescribed periods, U. S. v. Salzmann, supra, 417 F.Supp. at 1152. On the other hand, some Rule 50(b) plans and the Federal Speedy Trial Act of 1974 are based on the concept that “trial shall commence” within scheduled times. See United States v. Rodriguez, 375 F.Supp. 589 (S.D.Tex.1974) and United States v. Strand, 566 F.2d 530 (5 Cir. 1978). When the former referred to “the government” they meant the United States Attorney or other federal prosecutor — not the entire government of the United States as envisaged by its Constitution. Likewise, when the Texas Speedy Trial Act refers to “the state” it means the affected district attorney or other prosecuting attorney — not the State of Texas and its several departments as created by its Constitution.

The provisions of the act itself, reasonably construed, further support this conclusion. Thus in describing times that may be excluded in determining when the State must be ready, Section 4 speaks of inability of the State to determine location of the accused by due diligence, (4)(B); of the State knowing the location of the defendant but being unable to obtain his presence by due diligence, (5); of the State requesting a continuance because of unavailable evidence when the State has exercised due diligence to obtain it or because the State needs additional time to prepare its case, (6); of the charge being dismissed upon motion of the State, (7); and of a period of delay caused by defendant’s detention in another jurisdiction and the State is aware of that detention and exercising due diligence to obtain his presence for trial. All of these instances plainly contemplate only the prosecuting attorney and just as clearly exclude the idea that the trial court is embraced within the term “the state” being ready for trial.

Prom the premise that the term “the state” included the trial court respondent moved easily to the conclusion that the crowded condition of the criminal docket of the district courts in El Paso County constituted an exceptional circumstance that permitted a reasonable period of delay to be excluded from the time by which the State must be ready for trial, as provided in Article 32A.02, Section 4, Subsection (10). Having found his premise untenable, I believe that his conclusion of law also falls for that reason as well as another I now proceed to develop.

The federal speedy trial plans that were conditioned upon the government being ready for trial, like our own Speedy Trial Act, also provided for excluding certain periods of time from the computation of readiness. One of the exclusions, as pointed out and discussed in United States v. Salzmann, supra, 417 F.Supp. at 1162 was:

“(h) Other periods of delay occasioned by exceptional circumstances.”

It must always be kept in mind that what we are addressing is the condition of readiness of the prosecuting attorney to try the particular case at issue rather than that of the trial court. It follows, therefore, that “exceptional circumstances” that are found sufficient to exclude a reasonable period of delay in computing the time within which the State must be ready for trial necessarily arise from something about the case rather than the business of the trial court or, indeed, the state of affairs in the office of the prosecuting attorney. Thus it has been held that to qualify as “exceptional” within the meaning of the federal plan the circumstances may “not be something with which the Plan’s drafters were familiar," United States v. Rodriguez, 529 F.2d 598, 600 (2 Cir. 1976). Plainly, it being a matter of general common knowledge, we may attribute to the Legislature its familiarity with the fact of overcrowded dockets in the trial courts throughout the State — actual awareness is revealed by Article 32A.01 of the Speedy Trial Act itself whereby trial of a criminal action is given preference over a civil case and trial of an accused who is detained in jail is given preference over trial of other criminal actions.

But, more significantly, a crowded court docket is simply not a circumstance that conditions readiness for trial on the part of the State. The exceptional circumstance exclusion pertains to the State being ready for trial, just as it does to the United States Attorney under a federal plan containing substantially the same provision, U. S. v. Rollins, 475 F.2d 1108 (2 Cir. 1973). In his findings of fact filed in this cause, the respondent found that the State filed announcements of ready June 30, 1978 and July 3, 1978 in this case as well as all 1200 cases then pending in El Paso County; he further found that the district attorney never announced ready before an assembled jury panel in this case, but from my reading of the record I take this to mean that the occasion for doing so was not presented after the effective date of the Texas Speedy Trial Act. Precisely, then, respondent has not made a finding of readiness on the part of the State — one way or the other. But I observe, somewhat incredulously, that an assistant district attorney testified that had the court called any one of the 1200 cases the following Monday the prosecutor would have taken it to trial “or we would have dismissed the case.” Thus, so far as the State was concerned the highly overcrowded criminal docket in the district courts of El Paso County was of no moment whatsoever. The State being ready, or prepared to dismiss the case otherwise, the letter, intent and purpose of the act were satisfied in this case.

In coming to that conclusion, I am well aware that trials of criminal prosecutions may be only relatively accelerated by the strictest compliance with the provisions of the act. But if the operation of the act, as I have construed it, fails to produce temporal and quantitative results deemed beneficial in the public interest, such disappointments were presaged by the federal experience that preceded it. The link of readiness on the part of the State is but one of several component links in the drive chain that powers the criminal justice system to the desired point that “trial shall commence” within a given time.

As judge of the court, respondent was called upon to make and did make and render a judicial decision within the jurisdiction of the court. While I have disagreed with the basic theory that led him to the ruling, I agree and approve the result, denial of the motion to dismiss the indictment. Petition for writ of mandamus must, therefore, be denied by the Court, and I join its order doing so.

      . There are 10 district courts in El Paso County. See Articles 199 (34, 41, 65), (120) and (171); 199a, Sections 3.006, 3.032, 3.038, 3.068; 1926a, Section 2.28; V.A.C.S. The “Official District Court Monthly Report” to the Texas Judicial Council for July through October shows the following criminal and civil dispositions, respectively:
      July - 68 and 663,
      August - 98 and 610,
      September - 72 and 555, and
      October - 92 and 534.
      This unscientific survey reflects an upward trend in felony case dispositions and a reduction trend in civil case dispositions. Defense Exhibit 1, the minutes for the October 27, 1978, meeting of El Paso County District Judges reflects affirmative steps authorized to be taken to distribute the criminal caseload among all 10 district courts. Also, the district courts have implemented a “running” docket whereby docketed cases remain so until called for actual trial. This is in contrast to prior procedure whereby if not called, a cause would be dropped from the docket and reset, as in petitioner’s case. Whether this evidence shows compliance with the mandate on priorities found in Article 32A.01, supra, is a question not before us. It does, however, remove the trial court’s conclusion that the facts show a Section 4(10) exception from the realm of an arbitrary and capricious discharge of judicial responsibility, i. e., an abuse of discretion.

      . The opinion of the Court omits Conclusion of Law No. 1 and thereby fails to reveal the essence of his theory by which respondent arrived at Conclusion of Law No. 2. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated).

      . For a comprehensive examination of historical developments in the federal system, with emphasis in the Second Circuit, see generally United States v. Salzmann, 417 F.Supp. 1139, 1146 ff. (E.D.N.Y.1976).

      . The Committee on the Administration of the Criminal Law of the United States Judicial Conference prepared a Model Plan which was submitted by the Administrative Office of the United States Courts to each district court, but each district had the option of preparing its own plan. Salzmann, supra, 417 F.Supp. at 1149.

      . Acts 1977, 65th Leg., p. 1970, Ch. 787.

      .Also persuasive in this regard is the fact that the Texas Speedy Trial Act amended, inter alia, Article 29.03, V.A.C.C.P., providing for continuance on written motion of the State. We also observe that the Legislature considered “the state” to be synonymous with the prosecuting attorney when it provided in Article 29.04 elements of sufficiency of a first motion for continuance by the State and in Article 29.05 for sufficiency of a subsequent motion for continuance by the State; see also Articles 29.12 and 29.13 treating situations where a continuance Ifas been granted to the State or on motion of the State. Chapter 31, V.A.C.C.P., providing for change of venue in certain situations, permits the court to order a change on its own motion “after due notice to accused and the State,” Article 31.01, and the prosecuting attorney to seek a change where a fair and impartial trial “as between the accused and the State” cannot be had, Article 31.02. Indeed, in common parlance this Court, like the Legislature, uses the term “the state” interchangeably with the prosecuting attorney when speaking of the State, as a party, being represented by a district or county attorney. See, e. g., White v. State, 543 S.W.2d 366 (Tex.Cr.App.1976) and Articles 2.01 and 2.02, V.A.C.C.P.

      . “Sec. 4. In computing the time by which the State must be ready for trial, the following periods shall be excluded:
      $ * * * j(e *
      (10) Any other reasonable period of delay that is justified by exceptional circumstances.”

      . Thus, neither confusion in the prosecutor’s office, United States v. Favaloro, 493 F.2d 623 (2 Cir. 1974), nor his desire to finish another investigation, United States v. Rollins, 487 F.2d 409, 413 (2 Cir. 1973) are exceptional circumstances for they are matters with which the drafters clearly were familiar, one of the objectives of the plan being to remove just such impediments to a speedy trial.

      . Its recurring apportionment of judicial districts by amendments to Article 199, V.A.C.S., and creation of new judicial districts through initial enactment and biennial amendment of the Judicial Districts Act of 1969, Article 199a, V.A.C.S., attest to legislative recognition of the problem and reflect one method of correcting it.

      . Where the mandate is that “trial shall commence” within a given period of time, as in the Rule 50(b) Plan adopted in the United States District Court for the Southern District of Texas, U. S. v. Rodriguez, 375 F.Supp. 589, 592 (S.D.Tex.1974) an “exceptionally crowded docket” provided an exceptional circumstance. And it was just such “institutional delay” that Congress explicitly proscribed by forbidding a judge to grant a continuance due to court calendar congestion, 16 U.S.C.A., § 3161(D)(8)(c), 1974 U.S.Code Cong. & Admin.News, pp. 7401, 7426.

      . I do not intend to say that merely filing a written announcement of ready sufficiently demonstrates the State is actually ready for trial. It is but a prima facie showing that, without challenge, may eliminate necessity for an evidentiary hearing to determine whether in fact the State is ready to go to trial. See Salzmarm, supra, 417 F.Supp. at 1153.

      . I am aware of the February 15, 1979 opinion in Grimm v. Garner, 577 S.W.2d 573 (Tex.Civ.App.—Waco) which affirmed grant of writ of mandamus by a district court commanding a justice of the peace to grant a motion by accused to set aside a criminal complaint filed against him for lack of compliance with applicable provisions of the Speedy Trial Act. In doing so the Court applied the well settled rule that mandamus would issue to an inferior court to compel the performance of a duty made mandatory by law or the doing of an act that is simply ministerial and involves no judicial discretion. The rule was applied to “the undisputed facts” of the case which included a finding of fact by the district court that “the State was not ready for trial within 30 days” after the commencement date.


author: TOM G. DAVIS, Judge.

text:
    Jimmy Max RAMSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 55947.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 7, 1979.
    Douglas Tinker and A. Deniz Tor, Corpus Christi, for appellant.
    John H. Flinn, Dist. Atty. and Thomas L. Bridges, Asst. Dist. Atty., Sinton, for the State.
    Before DOUGLAS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of heroin. Punishment was assessed at three years.

Appellant contends that the trial court erred in failing to suppress evidence obtained in a search conducted under an invalid search warrant. He maintains that the affidavit supporting this warrant was insufficient as it contained misrepresentations as to material facts. He also alleges error in the trial court’s refusal to allow him to call a witness to establish the misrepresentations in the warrant. These contentions necessarily require a review of the evidence entered at the suppression hearing.

The record reflects that the appellant had been arrested in a motel room in possession of a quantity of heroin. The arrest had been made pursuant to execution of a search and arrest warrant based on an affidavit by Donald Walker, a Department of Public Safety narcotics agent. The supporting affidavit alleged probable cause from an informer’s tip as follows:

“Affiant has probable cause for said belief by reason of the following facts, to wit:
“I Donald Walker, of the Texas Department of Public Safety Narcotics Service, had been informed of the foregoing set-out [sic] facts by a person whom I know is reliable, credible and trustworthy, who states the following facts:
“1. That said source has been inside of room # 126, of The Sea Palm Lodge, located at 1515 W. Wheeler St., Aran-sas Pass, Texas, within the past 24 hours, and observed Jimmy Ramsey and Beverly Ramsey maintaining possession and control of a quantity of heroin.
“I believe the aforementioned facts to be true and correct as said confidential source has given information in the past concerning narcotics violations that has proven true and correct on each and every occasion.
“I do not desire to reveal the name of said confidential source for security reasons to said source or family thereof.
“I received the above information concerning the above violation of law on the 18th day of June, 1976.”

Officer Walker later testified that the informant that supplied this information was Kenneth Vaden.

Officer Walker was cross-examined as to an alleged discrepancy between the information set out in the affidavit and that set out in an investigation report prepared by him. In this report, the only statement as to the informer’s tip was:

“On Friday, 06-18-76, Agent WALKER received reliable information from a confidential source that Jimmy and Beverly RAMSEY, husband and wife, were staying in Room # 126 of the Sea Palm Lodge, in Aransas Pass, and that they had in their possession a quantity of heroin.”

The officer testified that the informant had told him that he had been in the room as set out in the affidavit, and that omission of this information in the report did not indicate the contrary.

Defense counsel then sought to call Va-den, the informer, as a witness. It was stipulated that Vaden was “in custody in the jail here in Sinton” at the time of this hearing. In response to the judge’s inquiry as to what the defense expected to prove by this witness, defense counsel stated that Vaden had told him that he had never been in the motel room, and had not told officer Walker that he had. Defense counsel pointed out that this information was in conflict with the information in the affidavit. The court refused to allow Vaden to be called as a witness, but agreed that the statements of defense counsel could be included in the record as a Bill of Exception.

At the time of the appellant’s trial, the trial court’s refusal to allow the testimony of the informer was a correct interpretation of the then law. This Court had long held that a challenge to the affidavit’s statement of probable cause could not go behind the face of the affidavit. Oubre v. State, Tex.Cr.App., 542 S.W.2d 875; Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Phenix v. State, Tex.Cr.App., 488 S.W.2d 759; Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852. Most recently, in Jones v. State, Tex.Cr.App., 568 S.W.2d 847, this Court again followed this rule and stated that “Our determination of the sufficiency of an arrest or search warrant affidavit’s statement of probable cause is limited to the four corners of the affidavit.” 568 S.W.2d at 855.

Subsequent to the cases cited above, however, the United States Supreme Court has reviewed a similar state rule and set out an exception to a blanket prohibition against any challenge to the veracity of the officer’s statements in a search warrant affidavit.

In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the Supreme Court held that the Delaware “four corners” rule, insofar as it prohibited every challenge to the veracity of the sworn statement in a warrant affidavit, violated the Fourth Amendment. In Franks, the court held that when the defendant alleges a deliberate falsehood or reckless disregard for the truth and accompanies this allegation with an offer of proof, that if disregarding the statement alleged to be false would render the affidavit insufficient, a hearing on those allegations is required. Before considering appellant’s contention in light of Franks, however, we must determine if the holding in Franks is retroactive so as to be applicable to the present case.

In United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), the Supreme Court considered the retroactive application of its earlier decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Almeida-Sanchez had held that a warrantless search by Border Patrol agents approximately 25 miles from the border without probable cause violated the Fourth Amendment. The court refused to apply Almeida-Sanehez retroactively, however, reasoning that the purpose behind the exclusionary rule would not be furthered by a post facto exclusion of evidence seized in good faith compliance with what was considered the constitutional standard at that time. Justice Rehnquist, speaking for the majority in regard to retroactive application of the Supreme Court’s constitutional decisions, stated that, “If the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may be properly charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” 422 U.S. at 542, 95 S.Ct. at 2320. Justice Rehnquist concluded that since the Border Patrol agent was acting in compliance with a federal statute buttressed by continuous judicial approval, the holding in Almeida-Sanchez would not be applied retroactively in Peltier. The application of this same reasoning to the present case compels the opposite conclusion, however.

The very heart of the decision in Franks goes to the proof of knowledge by a police officer that the information he possesses is insufficient to support the issuance of a warrant. Any affidavit sworn to with knowledge that the information in the affidavit is false, or with reckless disregard to its truth of that information, cannot be said to have been in good faith and in accordance with the law. Thus, we find that the holding in Franks is to be applied retroactively.

The Supreme Court summed up its holding in Franks, setting out specifically what is required to come within the narrow exception. In order to be entitled to an evi-dentiary hearing on the allegations concerning the veracity of the affidavit, the defendant must:

1. Allege deliberate falsehood or reckless disregard for the truth by the affi-ant, specifically pointing out the portion of the affidavit claimed to be false. Allegations of negligence or innocent mistake are insufficient, and the allegations must be more than conclusory.
2. Accompany these allegations with an offer of proof stating the supporting reasons. Affidavits or otherwise reliable statements of witnesses should be furnished. If not, the absence of written support of the allegations must be satisfactorily explained.
3. Show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support issuance of the warrant.

98 S.Ct. at 2685.

Considering the showing made by the appellant in light of the holding in Franks, we find that an evidentiary hearing was required. The appellant alleged that the officer was not told by the informer that he had been in the room, thus any statement asserting such a fact arguably indicated a deliberate falsehood or reckless disregard for the truth.

Although no affidavit or other written support was offered, the trial court accepted defense counsel’s statement as a Bill of Exception. We note that in Franks no affidavit or other written material was offered, but only a statement by defense counsel as to what would be shown if he were allowed to call witnesses on the issue. 98 S.Ct. at 2678 — 79. In the present case, the trial court refused to allow the defense to call a witness shown to be available but allowed defense counsel’s statements as a Bill of Exception. Here, as in Franks, this preliminary showing is sufficient. See Art. 40.09, Sec. 6(d)(1), V.A.C.C.P.

Finally, the warrant contains no other allegations as to how the informant gained his information; thus excising this portion would render the affidavit insufficient. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Jones v. State, supra.

By our holding today we find only that the court should have held an eviden-tiary hearing on the allegations of appellant that the affidavit contained a falsehood, and this opinion should not be misinterpreted as holding that the affidavit was bad or that the court must accept the testimony of the informer or any other witness.

While the trial court was correct in its ruling in not allowing appellant to call the informer at the time the hearing was held, the subsequent Franks decision by the United States Supreme Court requires by its very terms that we give retroactive application to its holding therein and reverse this cause for failure of the trial court to allow appellant a hearing on his contention that the affidavit was based on a falsehood and an opportunity to call the informer as a witness in support thereof.

The judgment is reversed and the cause remanded.

      . Accord, United States v. Astroff, 578 F.2d 133 (5th Cir., 1978); contra, People v. Cook, 22 Cal.3d 67, 148 Cal.Rptr. 605, 583 P.2d 130 (1978).

      . Contra, People v. Cook, supra. The California Supreme Court held that if the officer knows the statement is false the affidavit is insufficient without regard to the remaining allegations.


author: PHILLIPS, Judge.

text:
    John L. HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 57662.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 14, 1979.

      Douglas R. Bergen, Waco, for appellant.
    Felipe Reyna, Dist. Atty. and Karen Cable, Asst. Dist. Atty., Waco, Robert Hut-tash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. The punishment was assessed at life imprisonment.

At the outset we note fundamental error which we shall review in the interest of justice. See Article 40.09(13), V.A.C.C.P. The indictment of the appellant in the instant cause reads in pertinent part as follows:

John L. Hawkins . . . , on or about the 17th day of January A.D. 1976, and before the presentment of this indictment, in the County and State aforesaid, did then and there while in the course of committing theft and with intent to obtain and maintain control of property of Gerry W. Moore, to-wit: United States Monies, without the effective consent of the said Gerry W. Moore, and with intent to deprive the said Gerry W. Moore of said property, did then and there by using and exhibiting a deadly weapon, to-wit: a firearm intentionally and knowingly threaten and place Gerry W. Moore in fear of imminent bodily injury and death, .

The trial court provided the jury with the definition of recklessness as provided in V.T.C.A., Penal Code, Section 6.03(c), although not alleged in the indictment. In applying the law of this State to the facts of this cause, the trial court instructed the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 17th day of January, 1976 in McLennan County, Texas, the defendant, John L. Hawkins, did without the effective consent of Gerry W. Moore, the owner, take and exercise control over the corporeal personal property of Gerry W. Moore, to-wit: United States Monies, from the possession of Gerry W. Moore, with intent then and there to deprive Gerry W. Moore of said United States Monies, and that said defendant, in so doing, and with intent to acquire and maintain control of said United States Monies, intentionally, knowingly, or recklessly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant used or exhibited a deadly weapon, to-wit: A firearm, then you will find the defendant guilty of aggravated robbery, as charged in the indictment.
(Emphasis added)

As can be seen, the trial court in instructing the jury provided an alternative mens rea as a basis for appellant’s culpability for the charge of aggravated robbery although it was not expressly alleged in the indictment. Such an error has been considered fundamental in that it is calculated to injure the rights of the defendant and calls for a reversal regardless of whether objections are lodged against the error at trial or it is expressly brought to our attention as a ground of error on appeal. See Article 36.19, V.A.C.C.P.; Dowden v. State, Tex.Cr.App., 537 S.W.2d 5. In fact, Y.T.C.A., Penal Code, Section 29.02 does not provide for any robbery offense involving the reckless threatening or placing of another in fear of imminent bodily injury or death. Thus, the jury was authorized under this erroneous instruction to convict the appellant of a nonexistent offense under the laws of this State. See generally Garza v. State, 162 Tex.Cr.R. 655, 288 S.W.2d 785(2); Robinson v. State, Tex.Cr.App., 553 S.W.2d 371; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Shaw v. State, Tex.Cr.App., 557 S.W.2d 305.

For future guidance in this area of the law, the bench and bar should refer to the following sources:

8 Texas Criminal Forms (8th Ed) by Morrison and Blackwell, Sections 99.01 and 99.02, pages 365 to 372;
2 Branch’s Penal Code (3d Ed), Sections 29.02, page 306-307 and 29.03 (1978 Supplement), page 42; and
Texas Criminal Pattern Jury Charges (1975), State Bar of Texas, CPJC 29.-02(a)(1), 29.02(a)(2), 29.03(a)(1), and 29.-03(a)(2), pages 274 to 287.

Error in applying the law to the facts can be avoided by scrupulous attention to the allegations in the indictment and ensuring that the charge in no way expands on those allegations. The application of the law to the facts is controlled by the indictment, not the evidence. Contra McClung Jury Charges for Texas Criminal Practice (1979), Chapter 29, pages 94-98.

For the foregoing reason, the judgment of conviction is reversed and the cause remanded.

      . As written in Dowden:

      It is fundamental that a conviction for an offense cannot stand unless the charge authorized the jury to find a defendant guilty only for conduct constituting that offense (Venzor v. State, 162 Tex.Cr.R. 175, 283 S.W.2d 397); the indictment alleged such conduct (Venzor v. State, supra; 31 Tex. Jur.2d, Sec. 69 at 596); and the evidence at trial showed such conduct (Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590; 5 Branch’s Ann.P.C. (2d ed.), Sec. 2603 at 32). . . .

        Id. at 6.
      The principle is the same with or without a timely trial objection because of its “fundamental” nature. Davis v. State, supra.

      . V.T.C.A., Penal Code Section 29.02(a) reads as follows;
      (a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
      (1) intentionally, knowingly, or recklessly causes bodily injury to another; or
      (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
      The instant indictment charged appellant under Section 29.02(a)(2).


author: ROBERTS, Judge.

text:
    Wilbert Clarence ALBERT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56322.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 25, 1979.

      Joe E. Taylor, Denison, for appellant.
    Stephen Davidchik, County Atty. and Tom Streeter, Asst. County Atty., Sherman, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary. V.T.C.A., Penal Code, Section 30.02. After pleading not guilty, the jury convicted appellant and assessed his punishment at four years’ confinement.

We are confronted at the outset with fundamental error in the court’s charge to the jury which requires reversal in the interest of justice. Article 40.09(13), Vernon’s Ann.C.C.P.; Article 36.19, Vernon’s Ann.C.C.P.

The indictment in the present case alleges burglary by “entering] a building without the effective consent of [the owner], and therein attempted to commit and committed theft.” The court instructed the jury in applying the law to the facts that appellant was guilty of the offense charged if it found beyond a reasonable doubt that he “without the effective consent of [the owner], enter[ed] a building and committed] the felony offense of burglary.” (Emphasis supplied.)

A person may commit the offense of burglary as provided by Section 30.02, supra, in one of three manners: (1) by entering a habitation or building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; (2) by remaining concealed, with intent to commit a felony or theft, in a building or habitation; or (3) by entering a building or habitation and committing or attempting to commit a felony or theft. In the present case, the court instructed the jury that the appellant was guilty of the offense of burglary if it found beyond a reasonable doubt that he entered the building in question with the intent to commit burglary. This theory was not alleged in the indictment. It is now well settled that it is fundamentally erroneous for the trial court to instruct the jury to convict the defendant on various theories not alleged in the indictment. Cullum v. State, 576 S.W.2d 87 (Tex.Cr.App.1979); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Shaw v. State, 557 S.W.2d 305 (Tex.Cr.App.1977).

The judgment is reversed and the cause remanded.


text:
    Joe REYES, Appellant, v. The STATE of Texas, Appellee.
    No. 56724.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 25, 1979.
    Douglas H. Parks, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., J. T. Lang-ford, Kelly Loving and Jayne Wilson, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for burglary of a building. The jury, having found the appellant guilty, further found that he had been twice previously convicted of a felony offense. Accordingly, punishment was assessed by the court at life imprisonment. See V.T.C.A., Penal Code, Section 12.42(d).

In a single ground of error, the appellant complains that the court erroneously admitted into evidence over his timely objection a police photograph taken of him on the date of the offense. We affirm.

On September 6, 1976, at approximately 3:30 a. m., Dallas police officer Elton Williams, along with several other Dallas police officers, responded to a silent burglar alarm signal emanating from the Tex Mex Lounge in Dallas. Williams apprehended the appellant as the latter kicked down the establishment’s front door from the inside and attempted to flee. At the time he was caught, appellant attempted to conceal a screwdriver. His confederate was found inside the establishment with a large amount of loose change on his person; several of the coin operated machines inside the establishment were found burglarized. A close inspection of the premises revealed that an air conditioner had been removed from the wall and that entry was gained through this space.

Tim Martinez, the owner and proprietor of the Tex Mex Lounge, testified that at the time in question the establishment was closed to the public and that the appellant did not have his permission to enter. Suffice it to say that the evidence of appellant’s guilt was overwhelming.

The appellant contends that by admitting his “mug shot” into evidence, he was labeled “as a criminal in the minds of the jury without his being convicted on the merits of the case.” We disagree. The photograph of appellant was taken immediately subsequent to his arrest for the present offense and was introduced by the State as rebuttal evidence on the issue of whether or not appellant was physically mistreated or abused by the police at the time of arrest. The photograph depicts a side and frontal view of appellant and upon his chest in the frontal view appears a sign containing the following notations:

“POLICE
“DALLAS
“TEXAS
“161215
“6 Sep. 76”

Appellant relies on Richardson v. State, 536 S.W.2d 221 (Tex.Cr.App.1976) as authority for his contention. Unlike the present case, in Richardson the mug shot of the defendant which was admitted into evidence was taken five months prior to the commission of the offense for which the defendant was being tried. We held that the mug shot of Richardson, which contained essentially the same police identification markings as the mug shot of appellant in the present case, was improperly admitted into evidence so as to require reversal. In the present case, however, the complained of photograph was taken of appellant as a result of his being arrested for the present offense and in no way suggested that appellant had had previous encounters with the Dallas police.

We conclude that the “mug shot” taken of appellant immediately subsequent to his arrest for the present offense and admitted as rebuttal evidence on an issue raised by the appellant (that the police had physically abused him) was properly admitted into evidence, although the better practice would dictate removal of the police identification marks before the photograph is introduced before the jury. Richardson v. State, supra; Harlan v. State, 416 S.W.2d 422 (Tex.Cr.App.1967). Appellant’s contention is overruled.

We have considered the contentions set forth in appellant’s pro se brief and find them to be without merit.

The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Fred Thomas ELLISON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56731.
    Court of Criminal Appeals of Texas, Panel No. 1.
    April 25, 1979.
    E. Neil Lane, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Lupe Salinas and Robert A. Moen, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated robbery, wherein the punishment, enhanced by two prior convictions, was assessed at life.

By supplemental brief, appellant urges fundamental error, in that the charge to the jury authorized a conviction under every conceivable theory under V.T.C.A. Penal Code, Sec. 29.02 and Sec. 29.03, rather than limiting it to the theory alleged in the indictment. We agree.

The indictment in the instant case alleges, in part, that appellant,

“did while in the course of committing theft of beer and wine owned by Elizabeth Standley, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a knife.”

The trial court charged the jury:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 29th day of October, 1975, in Harris County, Texas, the Defendant, Fred Thomas Ellison, Jr., did, without the effective consent of Elizabeth Standley, the owner, take and exercise control over the corporeal personal property of Elizabeth Standley, to-wit, beer and wine, from the possession of Elizabeth Standley of said beer and wine and that said Defendant, in so doing, and with intent to acquire and maintain control of said property, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the Defendant caused serious bodily injury to Elizabeth Standley or Defendant used or exhibited a deadly weapon, to-wit, a knife, then you will find Defendant guilty of aggravated robbery as charged in the indictment.
“If you find from the evidence that the Defendant committed the offense of robbery, as herein defined, but you have a reasonable doubt as to whether he caused serious bodily injury to Elizabeth Stand-ley or as to whether he used or exhibited a deadly weapon in committing said robbery, then you will find the Defendant guilty only of robbery, and not of aggravated robbery.”

The indictment in the instant case alleged robbery under V.T.C.A. Penal Code, Section 29.02(a)(2) by alleging that the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death. The indictment then alleged the aggravating factor “by using and exhibiting a deadly weapon, namely, a knife.” V.T.C.A. Penal Code, Section 29.03(a)(2).

The instant indictment and charge are practically identical to those in Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); and Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977). As this Court held in Robinson, and reaffirmed in Gooden,

“This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further, the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A. Penal Code, Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment.”

In these cases, we held this error in the charge to be fundamental, requiring reversal, even though no objection was made to the charge at trial. In the instant case, no objection to the charge was made, but since the charge authorizes a conviction on a theory not charged in the indictment, we find fundamental error.

The judgment is reversed and the cause remanded.


text:
    Robert Delvin HUBBARD, Appellant, v. The STATE of Texas, Appellee.
    No. 56781.
    Court of Criminal Appeals of Texas, En Banc.
    April 25, 1979.
    W. John Allison, Jr., on appeal only, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John Tatum, Hugh Lucas and John Ovard, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

Appellant was convicted by a jury for the offense of aggravated robbery. The jury found that appellant had two prior felony convictions, and the court, pursuant to V.T. C.A., Penal Code, Sec. 12.42(d), assessed punishment at life imprisonment.

Appellant’s court-appointed counsel has filed a brief in which he has concluded that the appeal is frivolous and without merit. We do not agree, but instead perceive unassigned error which must be considered in the interest of justice. See Art. 40.09(13), Vernon’s Ann.C.C.P.

Appellant was charged with having committed aggravated robbery by use of a deadly weapon. The record reflects that appellant’s co-defendant and cousin, Jerry Wayne Hubbard, entered a drug store, produced a butcher knife, placed it at the throat of a female employee, and demanded the money in the store’s safe and cash register. He was alone during the robbery and he left alone after receiving the money. He then got into a nearby automobile occupied by two other people. Two witnesses observed the car and transmitted its description and license number to the police.

Shortly thereafter, the car became the object of police pursuit, and, after a high speed chase, it collided into a tree and stopped. In the car were Jerry Wayne Hubbard, a woman, appellant (who was driving), a butcher knife and the money taken in the robbery.

In Harris v. State, 562 S.W.2d 463 (Tex.Cr.App.1978), the defendant — like appellant in this case — was charged with committing aggravated robbery by use of a deadly weapon, namely, a knife. In that case, however, neither the victim nor the witness saw a knife, and the injuries were not considered serious enough, by either the victim or the investigating officer, to require medical attention. The police-officer witness in Harris was unable to say which of the parties to the offense brandished the weapon, nor was he able to state what kind of weapon was used.

In contrast with Harris, the knife used in this case by Jerry Wayne Hubbard was described by the State’s witnesses as a “butcher knife” and a “long-bladed knife.” When Jerry Wayne Hubbard testified for the appellant, he stated on cross-examination that the knife had a blade five or six inches long. He admitted that he had placed the knife against the employee’s throat and had told her that “I’d cut her throat.”

The facts of this case are thus distinguishable from those in Harris. And see Danzig v. State, 546 S.W.2d 299 (Tex.Cr.App.1977). As we pointed out in Harris and Danzig, a knife is not a deadly weapon per se; therefore, we look to its use and intended use to determine whether it is a deadly weapon. V.T.C.A., Penal Code, Sec. 1.07(a)(ll). See also Mosley v. State, 545 S.W.2d 144 (Tex.Cr.App.1977). It follows that “whether opinion evidence, if any, is necessary, and whether lay or expert opinion is required in proving that a knife is a deadly weapon, is going to depend upon a case-by-case analysis of the evidence.” Denham v. State, 574 S.W.2d 129 (Tex.Cr.App.1978); (concurring opinion of Tom G. Davis, Judge).

In the case before us, we conclude from the evidence that the manner of the weapon’s use and intended use was such as to allow the jury to infer that the weapon was deadly.

Accordingly, the judgment is affirmed.

DOUGLAS, J., concurs in the result.

      .We see no benefit in abating this appeal to allow counsel to search the record and prepare another brief in this case. Cf. Huggins v. State, 538 S.W.2d 136, 137 (Tex.Cr.App.1976). Counsel’s brief shows that he made a thorough examination of the record and a conscientious effort to discover error. See note 3, infra.

      . See V.T.C.A., Penal Code, Sec. 29.03(a)(2).

      . We observe that Harris was decided over three months after appellant’s court-appointed counsel filed his brief in the trial court. See note 1, supra.


author: ODOM, Judge.

text:
    Carl PAYNE, Appellant, v. The STATE of Texas, Appellee.
    No. 57358.
    Court of Criminal Appeals of Texas, Panel No. 3.
    April 25, 1979.
    Barrett W. Stetson and Richard Anderson, Dallas, for appellant.
    Henry M. Wade, Dist. Atty. and Maridell Templeton, Rick Russell and Sam Longoria, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for misdemeanor theft; punishment was assessed at 300 days in jail.

In his first ground of error appellant contends statements made to his probation officer and the stolen tape player that was recovered as a result of that conversation should have been excluded because the statement was made while in custody and without benefit of warnings of his constitutional rights, in violation of Art. 38.22, V.A. C.C.P., and his state and federal constitutional rights.

The record reflects that on the afternoon of April 19, 1977, appellant arrived at the probation office for his monthly report to James Gilliam, his probation officer. Gilliam testified that he had received a phone call from a neighbor of appellant’s brother, who complained that appellant was seeing her fourteen year old daughter, and who also reported that appellant had been bragging about having stolen a tape player from White’s Auto Store. When appellant arrived for his monthly report, Gilliam and another probation officer met with him in a private office to counsel him about his relationship with the fourteen year old girl. During this session a third probation officer arrived. After about fifteen minutes of counseling on this matter, Gilliam said, “What about the tape player.” Appellant looked surprised and subsequently admitted that he had stolen a tape player from White’s Auto Store on April 16, three days before this meeting. On directions from Gilliam, appellant went to his car and brought the stolen tape player back to the probation office. The police were then called, and when they arrived appellant was arrested and the stolen property was turned over to officer Harris.

Appellant relies on Creeks v. State, Tex.Cr.App., 542 S.W.2d 849, to support his argument that he was being subjected to custodial interrogation by Gilliam. In that case the Court wrote:

“Custodial interrogation was defined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ And such custodial interrogation is not limited to police station house interrogation. Mathis v. United States, 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969).
“In Ancira v. State, 516 S.W.2d 924 (Tex.Cr.App.1974), this court cited with approval United States v. Phelps, 443 F.2d 246 (5th Cir. 1971), where it was stated:
. . [w]e have noted several significant factors which should be considered in determining whether or not a defendant is in custody. For example, probable cause to arrest, subjective intent of the police, focus of the investigation, and subjective belief of the defendant have all been deemed relevant.’
“In light of the record before us it is clear that while the probation officer Sto-rey may not have formally arrested the appellant, the appellant was in fact detained while awaiting the arrival of the arresting officers and was deprived of his freedom of action in a significant way. The record reflects appellant’s understanding of his situation as he asked and was permitted to call his attorney to whom he was talking when the arresting officers arrived. Prior thereto, he had made the incriminating statement to Sto-rey without any warnings being given.”

Unlike Creeks, appellant here was not being detained for the arresting officer when he admitted the theft and turned in the stolen property. The police were first called after he gave the tape player to Gilliam. Also in Creeks, unlike here, a motion to revoke probation had been filed and an arrest warrant issued before the questioning. Looking to the significant factors listed in the quote from United States v. Phelps set out in Creeks v. State, as quoted above, we observe that no probable cause for appellant’s arrest existed at the time of the interview because the information Gilliam had received was vague, unverified and apparently multiple hearsay; there was no apparent intent to arrest in that the interview was part of the regular monthly probationary report process and Gilliam was not a peace officer; the focus was naturally on appellant, but this fact does not distinguish the situation from every other probationer interview; there was no evidence that appellant believed himself to be under arrest, and in fact he was sent to retrieve the tape player from his car unaccompanied by Gilliam or any other probation officer. In accord with Cunningham v. State, 488 S.W.2d 117, we conclude that appellant was not subjected to custodial interrogation, and it was not error to admit his statement and the tape player into evidence.

In his second ground of error, appellant contends the evidence is insufficient to prove ownership as alleged in the manager of White’s Auto Store. Appellant’s statement admitted that he had taken the tape player from the store, and the manager’s testimony from business records identified the tape player that had been turned over to officer Harris from its serial number as one that had been the property of his store. We find this evidence sufficient to prove ownership.

The ground of error is overruled.

The judgment is affirmed.

      . Gilliam in turn was surprised to learn this because he thought the theft had been in late March or early April. It developed that a friend of appellant had stolen another tape player on the earlier date.


text:
    Ex parte Charles Chadwick CRANFORD.
    No. 61095.
    Court of Criminal Appeals of Texas, En Banc.
    April 25, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an application for habeas corpus relief after a final conviction in a felony case. The applicant was charged by an indictment which reads in pertinent part: “. . did then and there enter a building which was not open to the public, without the effective consent of Kenneth Gould, the owner, and therein attempted to commit and committed theft . . ..” The indictment is fundamentally defective for failing to allege a culpable mental state. Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). The conviction is set aside and the indictment is ordered dismissed.

The applicant is ordered released from any confinement or restraint imposed by virtue of the indictment, judgment, or sentence in cause 8777 in the 24th Judicial District Court of Victoria County.


author: ONION, Presiding Judge.

text:
    Ex parte David RIDGEWAY.
    No. 61096.
    Court of Criminal Appeals of Texas, En Banc.
    April 25, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is a post-conviction proceeding under Article 11.07, V.A.C.C.P. The petitioner contends that on November 5, 1976 he was certified by the juvenile court to the district court for trial as an adult, and that on November 19, 1976 he was indicted by the grand jury for unauthorized use of a motor vehicle without being accorded an examining trial. On April 14, 1977 petitioner entered a guilty plea to the indictment in a bench trial and his punishment was seven (7) years’ imprisonment, but imposition of the sentence was suspended and he was placed on probation. On September 6, 1977 petitioner’s probation was revoked and he was sentenced. No appeal was taken.

Petitioner urges that since he was not accorded an examining trial required by V.T.C.A., Family Code, § 54.02(h) (1975), the indictment is void and the district court was without jurisdiction. He cites Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1977).

The trial court made findings of fact and conclusions of law which support the allegations of petitioner’s application, and that the petitioner did not waive his right to an examining trial. The trial court concluded the indictment was void and it was without jurisdiction of the case at the time of petitioner’s guilty plea, and it recommended that the relief prayed for by the petitioner be granted.

The petitioner has the standing to challenge a void indictment by way of post-conviction application for writ of habeas corpus. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); cf. Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

From our examination and study of the record, we conclude that the trial court was correct in his findings of fact and conclusions of law. See Ex parte Menefee, supra; White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979); Ex parte Hunter, 577 S.W.2d 496 (Tex.Cr.App.1979); Ex parte LeBlanc, 577 S.W.2d 731 (Tex.Cr.App.1979).

The petitioner is entitled to the relief prayed for. The indictment is ordered dismissed, and the petitioner is ordered released from any further confinement as a result of his conviction under such indictment.

It is so ordered.

      . See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).


author: PEDEN, Justice.

text:
    ELECTRIC MUTUAL LIABILITY INSURANCE COMPANY, Appellant, v. Ira Gillis WHITE, III, Appellee.
    No. 17342.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 29, 1979.
    Rehearing Denied April 26, 1979.
    Tekell, Book & Matthews, Hal R. Up-church, Houston, for appellant.
    Leebron & Robinson, Laron D. Robinson, Houston, for appellee.
    Before COLEMAN, C. J., and PEDEN and DOYLE, JJ.
   PEDEN, Justice.

Electric Mutual Liability Insurance Company appeals from a judgment in a Worker’s Compensation suit based on jury findings that Ira Gillis White was totally incapacitated for three months and has a partial incapacity that is permanent. Electric Mutual maintains that the trial court erred in excluding evidence of White’s wages at the time of his injury, that there was insuffi-dent evidence to support the jury’s finding as to his average weekly earning capacity during partial incapacity, and that such finding was against the great weight of the evidence. We affirm.

Gillis White injured his back on December 1, 1976, while working in the course of his employment for the General Electric Company. Surgery was performed on him for a herniated disc. On March 14,1977, he returned to work on a part-time basis and about a week later resumed work full time.

White has been able to continue working but says he is in constant pain and has found it necessary to take time off from work for traction treatments prescribed by his doctor. He says his concentration and attention to detail required on his job have been impaired by the continual pain.

Dr. Phillip Daley, White’s treating physician and surgeon, testified that White’s condition is suggestive of chronic low back inflammation as a result of his injury. He stated: “Statistically, once a man has a ruptured intervertebral disc and laminecto-my, his chance for having to be operated on again in his lumbar region for recurrent disc or another disc or scar tissue is significantly greater . . . ” He said that White’s ability to compete in the job market has been diminished.

The jury found in response to Issue 1 that White was totally incapacitated from December 1, 1976, until March 14, 1977, and found, in response to Special Issues 2, 2A and 2B, that beginning on March 14, 1977, he has a partial incapacity that is permanent. In answer to Issue 2C, it found that his weekly earning capacity during his partial incapacity is $150.

In points of error 1-4, Electric Mutual contends that the trial court erred in excluding not only White’s testimony concerning his wages prior to and at the time of his injury but also the parties’ stipulation concerning White’s average weekly wage at the time of his injury. Electric Mutual maintains that this evidence was relevant and material to the issue of whether White sustained a “reduction in earning capacity” as used in the trial court’s definition of “partial incapacity.”

The court’s charge defined “partial incapacity” as “any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity . . ” “Earning capacity” was defined as “ability and fitness to work in gainful employment for any type of remuneration, including salary, commissions, and other benefits, whether or not the person is actually employed. It does not necessarily mean the actual wages, income, or other benefits received during the period inquired about."

Section 11 of Article 8306 provides that in the event of partial incapacity, the injured employee is entitled to a “weekly compensation equal to sixty-six and two-thirds per cent (66⅜%) of the difference between his average weekly wages before the injury and his average weekly wage earning capacity during the existence of such partial incapacity.” In our case the parties stipulated, outside the presence of the jury, that White’s average weekly wage as computed under the Worker’s Compensation Act was $366.75.

The purpose of the act is to compensate an injured employee for loss in earning capacity, not for the loss of earnings or for the injury sustained. Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961); Maryland Casualty Co. v. Stevens, 55 S.W.2d 149,153 (Tex.Civ.App.1932, writ ref.). One is not partially incapacitated unless his average weekly wage earning capacity after injury is less than his average weekly wages before injury. Employers Reinsurance Corp. v. Holland, supra.

In the charge in our case, the definition of “earning capacity” clearly stated that earning capacity “does not necessarily mean the actual wages, income, or benefits received during the period inquired about.”

The fact that a claimant works and earns the same or more money after his injury than before is not conclusive on the issue of his incapacity to perform labor, but is simply evidentiary. Maryland Casualty Co. v. Goetz, 337 S.W.2d 749 (Tex.Civ.App.1960, no writ); Texas Employer’s Insurance Ass’n v. Evers, 242 S.W.2d 906 (Tex.Civ.App.1951, writ ref. n. r. e.). Electric Mutual asserts that it was vital to its defense that the court admit testimony concerning White’s preinjury wages. We disagree. Although the jury was not apprised of the actual dollar amount White received prior to his injury, it was shown that he had returned in March of 1977 to basically the same job at a yearly salary of $14,189, that he had been receiving raises, and that as late as March of 1978, he was making $15,-498.

“ . . . [AJverage weekly wages before injury must represent, in law, earning capacity before injury.” Employers Reinsurance Corp. v. Holland, supra. But our courts have never held that wages after injury represent capacity. To do so would ignore such important employment factors as tenure, experience, inflation, and supply and demand.

We consider that Electric Mutual was entitled to have evidence concerning White’s pre-injury wages admitted, but we cannot say that the exclusion of this information constituted reversible error. Rule 434, T.R.C.P. The jury was made aware that White was earning more at the time of trial than he was before his injury. The exclusion of the actual dollar amount did not seriously weaken Electric Mutual’s defense; “wages” and post-injury “earning capacity” are not synonymous.

Electric Mutual’s points of error 5 and 6 assert that there is insufficient evidence to support the jury’s answer to special issue 2C (that White’s average weekly wage earning capacity during incapacity was $150) and that such answer is against the great weight and preponderance of the evidence.

Electric Mutual points out that in addition to the fact that White is earning more money than before his injury, there has only been one complaint about his work, his job does not involve manual labor, and to date his doctor has “seen no reason to restrict him from doing the white-collar type job that he’s doing.”

Concerning his job requirements, White says it takes him longer to get his work done, and when cross-referencing orders through the large books that are used in his work, he sometimes has to sit on the floor to leaf through the books rather than carry them to his desk. Even sitting or standing for periods of time causes discomfort. In July, his employer complained to White about his performance.

Dr. Daley testified that White’s complaints of pain and discomfort were consistent with his injury and that his diagnosis of White’s condition was suggestive of a chronic low back inflammation that is probably permanent. He said pain can be disabling, particularly if it persists over a long period of time. He testified that he would not certify White to do any heavy or manual labor and that “[ajnything that would stress his lumbosacral region, such as prolonged standing, or even prolonged sitting in one position may cause him discomfort and decreased productivity.” When asked whether White was capable of performing his usual white-collar duties, the doctor replied:

No sir. That is not predictable. I think he could have difficulties even performing white collar work. At times the worst position for a patient who has back disease is a prolonged sitting position. To date I have seen no reason to restrict him from the white-collar job he’s doing.

There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered a disability. If after injury his capacity and efficiency to work are not the same as before the injury, he is entitled to compensation even though he is being paid as much or more than he earned prior to or at the time of injury. Texas Employers’ Insurance Ass’n v. Evers, 242 S.W.2d 906 (Tex.Civ.App.1951, writ ref. n. r. e.); Employers Reinsurance Corp. v. Ryne, 531 S.W.2d 156 (Tex.Civ.App.1975, no writ.).

■We stated in Consolidated Casualty Insurance Co. v. Smith, 309 S.W.2d 80 (Tex.Civ.App.1958, writ ref. n. r. e.);

In determining diminished earning capacity, you do not consider alone the ability of the workman to do the immediate type of work he is on. He may not always be on this type of work. He must compete in the mart of labor for jobs of varying types. Some of them are very advantageous but require hard manual labor. A jury has a right to consider this factor, in the light of all the testimony, in determining lessened earning capacity. Texas Employers’ Ins. Ass’n v. Evers, Tex.Civ.App., 242 S.W.2d 906 [writ.] ref., n. r. e.; Texas Employers’ Ins. Ass’n v. Taylor, Tex.Civ.App., 276 S.W.2d 901, writ, ref., n. r. e.

We hold that the evidence presented was sufficient to support the jury finding that during his incapacity White’s weekly wage earning capacity was $150.

Affirmed.