author: DAVIS, Commissioner.

text:
    Joe GRAHAM, Appellant. v. The STATE of Texas, Appellee.
    No. 50234.
    Court of Criminal Appeals of Texas.
    Feb. 2, 1977.
    Rehearing Denied Feb. 23, 1977.

      Pat McDowell, Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Gerald A. Banks and Win-field Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for obtaining a controlled substance, phenme-trazine, by use of a forged prescription. Punishment, enhanced by two prior felony convictions less than capital, was life.

The indictment alleged that the offense occurred on or about September 17, 1973, and the record reflects that trial began on July 31, 1974.

The record reflects that appellant obtained the drug in question by presenting a prescription purporting to be signed by Dr. Tim Reedy. Dr. Reedy testified that the signature on the prescription was not his. The pharmacist recognized that the signature did not belong to Dr. Reedy and took steps which resulted in the arrest of appellant as he was leaving the pharmacy. Appellant testified that he was having the prescription filled for a person whose first name was David and that he did not know that there was anything wrong with the prescription. The State then called a clerk from another pharmacy in Dallas who testified that appellant had attempted to pass another prescription purporting to be signed by Dr. Reedy about five days prior to the primary offense, but left the pharmacy after the pharmacist picked up a telephone as if to make a call.

By way of supplemental brief filed in this Court, appellant contends that the indictment is fundamentally defective in that the indictment failed to allege that appellant knew that the prescription was forged. We review such question in the interest of justice under the provisions of Art. 40.09, Sec. 13, V.A.C.C.P.

In the instant case, the indictment alleged in pertinent part that appellant,

“did then and there knowingly and intentionally acquire and obtain possession of a controlled substance, namely: Phenme-trazine by misrepresentation, fraud, forgery, deception, and subterfuge, in that he, the said defendant, did then present to Myrtle Vincent, a prescription for said controlled substance, for David Jordan, but which said prescription was then and there forged in that it then and there purported to but had not been written and signed by Dr. Tim Reedy, and the said prescription was then and there of the tenor following:

Section 4.09 of the Controlled Substances Act provides in pertinent part:

“(a) It is unlawful for any person knowingly or intentionally:
* * * * * *
(3) to acquire or obtain possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”

The indictment followed the terms of Section 4.09(a)(3), supra, when it alleged that appellant knowingly and intentionally acquired a controlled substance by “misrepresentation, fraud, forgery, deception, and subterfuge.”

This, coupled with an averment of the means used, the passing of a forged prescription was sufficient to put appellant and his attorney on notice of the crime for which he was charged. See Baldwin v. State, Tex.Cr.App., 538 S.W.2d 109; Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558.

In Baldwin v. State, supra, it was held that in a credit card abuse case in which it was alleged that the defendant “did then and there unlawfully, knowingly and intentionally steal a Master Charge credit card belonging to and from Brenda White,” it was unnecessary for the indictment to aver that the credit card was taken with the intent to deprive the owner of the property.

In Gonzales v. State, Tex.Cr.App., 517 S.W.2d 785, it was held that “the constituent elements of the particular theft or intended theft need not be alleged in an indictment or information for burglary with intent to commit theft.”

We need not determine whether knowledge that the prescription was forged is an essential averment in an indictment for passing a forged instrument since we conclude that it was unnecessary for the indictment to aver the elements of passing a forged writing in a case of obtaining a controlled substance by “misrepresentation, fraud, forgery, deception, or subterfuge.” We reject appellant’s contention that the indictment was fundamentally defective.

Appellant contends that “the evidence is insufficient to support the allegation of the two prior felonies relied on by the State to enhance defendant’s conviction.”

Appellant, having entered a plea of “true” to the enhancement paragraphs of the indictment, cannot be heard to complain that the evidence is insufficient to support same. O’Dell v. State, Tex.Cr.App., 467 S.W.2d 444; Alardin v. State, Tex.Cr.App., 491 S.W.2d 782.

Appellant contends that the “life sentence is void because it results from an ex post facto application of the law.”

Appellant urges that the prior convictions could not have been used for enhancement under the “old Narcotic Drug Act” (Art. 725b, V.A.P.C.) and therefore cannot now be used for enhancement.

In Shaw v. State, Tex.Cr.App., 529 S.W.2d 75, this Court quoted from Vasquez v. State, Tex.Cr.App., 477 S.W.2d 629, as follows:

“ ‘It is well settled that a conviction which occurred prior to the enactment of a statute providing for increased punishment upon a subsequent conviction may be used for enhancement purposes under that statute, and that such usage is not unconstitutional as being an ex post facto application of the statute.’ Citing many authorities.
“The opinion adds:
‘The reason that a conviction which occurred before the statute was enacted may be used for enhancement is that the statute providing for a greater penalty upon a subsequent conviction does not seek to punish the offender for the original criminal act a second time, but rather “The repetition of criminal conduct aggravates . guilt and justifies heavier penalties .” Graham v. West Virginia, 224 U.S. 616, 623, 32 S.Ct. 583, 585, 56 L.Ed. 917 (1912).’ ’’

We reject appellant’s contention that the life sentence is void as the result of an ex post facto application of the law.

Appellant contends that “the State’s attorney committed error when he argued that the State’s witnesses were ‘Clean. No prior record.’ ”

Appellant urges that the following argument by the prosecutor constituted “blatant bolstering of the State’s witnesses.”

“You didn’t hear anybody attack Debbie Robertson’s credibility with any prior convictions. You didn’t hear anybody attack Myrtle Vincent’s credibility with any prior convictions. You didn’t hear anybody attack Mr. Tichenor’s credibility with any prior convictions. You didn’t hear Dr. Reedy’s testimony attacked by any prior convictions. Clean. No prior record. Credible. What about the Defendant? Does he have any motive to lie; to fabricate; to try and save his own guilty neck? He doesn’t want to go back to the penitentiary. It’s not just all fun and games down there. You do a little work — honest work to earn your food. “MR. JOHNSTON: I object to his testimony about that. That’s off the record.”

The court sustained appellant’s objection and instructed the jury to disregard. Appellant’s motion for mistrial was overruled and such action by the court gives rise to appellant’s contention.

Appellant’s objection was not made until after the prosecutor had argued relative to appellant’s motivation to lie and then the objection was, “That’s off the record.” Even if it can be urged that the objection was to the remarks now complained of and was timely made, it is noted that the contention urged on appeal, that the prosecutor bolstered the witnesses, is not the same as the objection voiced in the trial court. A ground of error in an appellate brief must comport to the objection voiced at trial. Reece v. State, Tex.Cr.App., 521 S.W.2d 633; Sloan v. State, Tex.Cr.App., 515 S.W.2d 913. No error is shown.

Appellant contends that the prosecutor “erred when he injected an extraneous offense into the case which was not properly admissible otherwise.”

Appellant took the stand in his own behalf at the guilt stage of the trial and testified that he was having the prescription in question filled for a man by the first name of David with whom he had “shot two games of pool” at “Buckner Bowl,” a bowling alley in Pleasant Grove. On direct examination, appellant testified that in 1968 he “stole two cars, and I was sentenced to two years at the Texas Department of Corrections.” Appellant further testified, “I got sentenced to two years in the Texas Department of Corrections” in 1970 when “I was caught with one ounce of marijuana.” After 1971, appellant stated, “I got a DWI and — There were some pills — For the DWI I got a $400 fine and for the pills I got forty five days.” On cross-examination, appellant admitted that he had also been convicted for joy riding, driving while intoxicated, second offense, and misdemeanor theft, all of which had occurred since 1967.

Appellant’s first complaint under this contention is directed to the prosecutor’s question on cross-examination about appellant having told a Dr. Grigson that he smoked marihuana. The record reflects that appellant’s objection to the foregoing was sustained and no adverse ruling was obtained from the court. Under such circumstances, nothing is preserved for appellate review. Mayberry v. State, Tex.Cr.App., 532 S.W.2d 80.

Appellant next directs our attention to the prosecutor’s question relative to appellant being arrested on January 27, 1973. Appellant’s objection to this question was sustained and the jury was instructed to disregard. Appellant’s motion for mistrial was overruled. While inquiry as to an arrest is an improper inquiry for purpose of impeachment, we perceive no reversible error in light of the fact that appellant had already been impeached by a number of felony convictions and at least one misdemeanor conviction involving moral turpitude. See McKinney v. State, Tex.Cr.App., 505 S.W.2d 536.

Appellant further complains of the prosecutor directing appellant’s attention to “State’s Exhibit 12” and asking appellant if that was the way he appeared on January 27, 1973. “Exhibit 12” was never offered into evidence, it is not in the record, the record does not reflect what the exhibit was, nor is there any contention that it was displayed to the jury. Appellant’s objection to the question was sustained and the jury was instructed to disregard the question. Motion for mistrial was overruled. Under the foregoing circumstances, we perceive no exception to the general rule that the asking of an improper question is generally cured by an instruction to disregard. Mitchell v. State, Tex.Cr.App., 455 S.W.2d 266.

We reject appellant’s contention that an extraneous offense was injected which requires reversal.

Lastly, appellant contends that “the State’s attorney was guilty of prosecutorial misconduct where he asked questions which cumulatively deprived appellant of a fair trial and denied him due process of law.”

Appellant cites numerous events which occurred in the course of trial which he contends cumulatively resulted in prosecu-torial misconduct. We have reviewed the same and conclude that the conduct complained of does not fall within the ambit of prosecutorial misconduct denounced by this Court in the cases of Stein v. State, Tex.Cr.App., 492 S.W.2d 548; Renn v. State, Tex.Cr.App., 495 S.W.2d 922 and Boyde v. State, Tex.Cr.App., 513 S.W.2d 588.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

license: Public Domain

text:
    Edgar Lewis RUSHING, Appellant, v. The STATE of Texas, Appellee.
    No. 52900.
    Court of Criminal Appeals of Texas.
    Feb. 9, 1977.
    Rehearing Denied March 1, 1977.
    Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., William M. Lamb, James G. Walker, Winfield W. Scott, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for robbery. Punishment, enhanced under the provisions of V.T.C.A. Penal Code, Sec. 12.-42(b), was assessed at twenty-five years.

At the outset, appellant contends, “The trial court committed fundamental error in not excluding the in-court identification testimony of the witness, Roger Melton, as said testimony was tainted by the imper-missibly suggestive trial confrontation so as to give rise to a very substantial likelihood of irreparable misidentification.”

Roger Melton made an in-court identification of appellant as the person who robbed him while he was an employee of a Stop’N’Go Store in Grand Prairie about 7:00 p. m. on February 13, 1975. No objection was voiced to Melton’s identification of appellant, nor was any request made for a hearing on the matter of identification. Appellant urges on appeal that the court committed fundamental error in not excluding the in-court identification. We do not reach the merits of appellant’s contention since a timely objection to identification testimony must be made at the first opportunity. Jones v. State, Tex.Cr.App., 471 S.W.2d 413; Montoya v. State, Tex.Cr.App., 464 S.W.2d 853; Martinez v. State, Tex.Cr.App., 437 S.W.2d 842. Nothing is presented for review.

Appellant contends, “the prosecutor committed reversible error in his cross examination of appellant. .

Appellant’s complaint is directed to the following, which occurred during cross-examination of appellant:

“Q. You think the officer, then, just got together with these two civilians and cooked up this story on you?
“A. Well, I don’t know if they got together, but like I said, I feel that they have the wrong man because I definitely didn’t rob the place.
“Q. And the police officer is lying about the money?
“A. Well, I don’t know what you call it. “MR. SIMMONDS: I object to that, Your Honor.
“THE COURT: Sustained.”

Pursuant to appellant’s request, the court instructed the jury to disregard. Appellant’s motion for mistrial was overruled and this action by the court gives rise to appellant’s contention.

In McKinney v. State, Tex.Cr.App., 491 S.W.2d 404, complaint was made of the prosecutor being permitted to ask the defendant if certain witnesses were lying after defendant had given a version of the facts somewhat different than that of the State’s witnesses. In that ease, it was concluded, “While the question may have been argumentative, we do not perceive reversible error in light of the entire record.” In the instant case, appellant’s objection was promptly sustained and the jury was instructed to disregard. No reversible error is shown.

Lastly, appellant contends that “the indictment is fundamentally defective as it fails to allege that the offense of robbery was committed within 400 yards of the boundary of Dallas County.”

The pertinent portion of Art. 13.04, V.A. C.C.P., “On the boundary of counties,” provides:

“An offense committed on the boundaries of two or more counties, or within four hundred yards thereof, may be prosecuted and punished in any one of such counties . . . Amended by Acts 1973, 63rd Leg., p. 977, ch. 399, Sec. 2(C), eff. Jan. 1, 1974; Acts 1973, 63rd Leg., p. 1251, ch. 454, art. 2, Sec. 1, eff. Jan. 1, 1974.

Appellant acknowledges the applicability of Art. 13.04, supra, but urges that the failure of the indictment to aver that the site of the robbery was within four hundred yards of the Dallas County line was fundamental error.

Appellant relies on Parr v. State, 164 Tex.Cr.R. 424, 299 S.W.2d 940 (1957), where it was stated:

“Art. 190, C.C.P., provides that when an offense is committed within 400 yards of the boundary of any two counties, the prosecution may be conducted in either county. That statute is purely a venue statute. Where the facts authorize the application of the statute . . ., it is within the option of the state to bring the prosecution in either county.
“To exercise that option, the state’s pleading must of necessity show that the offense was committed in one county and the prosecution conducted in another.”

Article 21.06, V.A.C.C.P., “Allegation of venue,” provides:

“When the offense may be prosecuted in either of two or more counties, the indictment may allege the offense to have been committed in the county where the same is prosecuted, or in any county or place where the offense was actually committed.” Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722. (Emphasis supplied.)

Under Art. 13.04, supra, the instant offense could be prosecuted in Dallas County since the offense occurred within four hundred yards of the Dallas County line. Article 21.06, supra, provides that “the indictment may allege the offense to have been committed in the county where the same is prosecuted.” Thus, under Arts. 13.04 and 21.06, supra, it was not error for the indictment to aver that the offense occurred in Dallas County.

The judgment is affirmed.

Opinion approved by the Court.

      . The record reflects that the offense occurred about seventy-five feet from the Dallas County line in an adjoining county.


author: PHILLIPS, Judge.

text:
    John Allen FRENCH, Appellant, v. The STATE of Texas, Appellee.
    No. 52006.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied May 25, 1977.
    M. P. Duncan, III, Decatur, for appellant.
    Jack E. Shriver, County Atty., Decatur, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation.

On May 20,1975, appellant pleaded guilty and was convicted of the offense of driving while intoxicated. Punishment was assessed at confinement for 60 days and a fine of $150.00. Imposition of sentence was suspended and appellant was placed on probation. August 8, 1975, the State filed its first amended motion to revoke probation, alleging appellant had violated the probationary condition that he commit no offense against the laws of the state, by possession of less than two ounces of marihuana. Following a hearing, the trial court revoked appellant’s probation and imposed sentence of 30 days.

Appellant contends that the trial court erred in denying his motion to suppress the search warrant because the supporting affidavit was not sworn to before an officer authorized to administer oaths and because the warrant was issued by an individual who was not a magistrate.

The search warrant was issued by R. A. Hargrave, Jr., and signed as follows:

“R. A. Harsrrave. Jr. MAGISTRATE HURST MUNICIPAL COURT CITY OF HURST HURST, TARRANT COUNTY, TEXAS”

The supporting affidavit was sworn to before Hargrave and signed in the same manner as above set forth.

Hargrave was one of three men appointed April 15, 1974, by the mayor “to act as temporary judges of the Hurst Municipal Court in the absence of the city judge.” The mayor made these appointments pursuant to the Hurst Code of Ordinances, which provides in Sec. 12C-3:

“The mayor, or in his absence, inability, or disqualification, the city council of the city is authorized to appoint one or more qualified persons to act in the place of the Judge of the municipal court when the judge of the municipal court shall temporarily fail to act. Said additional judges shall have all the powers and shall discharge all of the duties of the judge of the municipal court . .

It is appellant’s contention that the Legislature did not provide for such “alternate” municipal judges and the city ordinance under which Hargrave was appointed is void due to a conflict with the applicable state statutes. We agree.

Article 5, Section 1 of the Texas Constitution enumerates the constitutional courts of this State and authorizes the Legislature to create statutory courts. Pursuant to this authority, the Legislature created corporation courts in 1899 for “. . each of the incorporated cities, towns and villages of this State . .” (Acts 1899, 26th Leg., p. 40, ch. 33 and Article 1194, V.A. C.S.) These courts, now called municipal courts, are governed by Title 28, Chapter 16 of the Texas Revised Civil Statutes.

Hurst is a home rule city. Art. 1196(a), V.A.C.S., provides for municipal judges in home rule cities:

“The Corporation Court in any city heretofore or hereafter incorporated, or adopting or amending its Charter, under Article 11, Sec. 5, of the Constitution of the State of Texas, commonly known and referred to as the ‘Home Rule Amendment’, shall be presided over by a judge . and who shall be selected under the provisions of the City Charter concerning the election or appointment of the judge to preside over the Corporation Court.” (Emphasis added)

Clearly the Legislature provided that there would be one municipal judge for such courts. Sec. 12C-3 of the Hurst City Ordinances is inconsistent with Art. 1196(a), supra.

Article 11, Sec. 5 of the Texas Constitution addresses the issue of inconsistent local and state provisions and provides in part:

“Cities having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; . (Emphasis added)

This mandate of the Home Rule Amendment has been strictly construed in favor of the dominant power of the Legislature. See City of Beaumont v. Gulf States Utilities Company, Tex.Civ.App., 163 S.W.2d 426.

The State argues that the Hurst ordinance is reasonable since a municipal judge cannot be expected to sit 24 hours a day, seven days a week. We note that the Legislature has authorized certain cities to provide for two or more municipal courts with two or more municipal court judges. See Arts. 1200a, 1200b, 1200c, 1200d, 1200aa, 1200bb, 1200cc, V.A.C.S. These articles apply to cities within fixed bracketed population ranges and'to named cities. The population of Hurst does not place it within the terms of any of these bracketed population articles, nor is it named in any of the remaining articles.

Sec. 12C-3 of the Hurst City Ordinances, which provides for the appointment of additional temporary (“alternate”) municipal judges is void for conflict with Art. 1196(a), V.A.C.S., in contravention of Article 11, Sec. 5 of the Texas Constitution. Likewise, the appointment of R. A. Hargrave and others to such office is also void in that there would have been four municipal judges in Hurst.

There remains the issue of whether the acts of R. A. Hargrave, and specifically the issuance of the search warrant in this case, may be upheld as the acts of a de facto magistrate. We hold that they cannot.

At the time the instant search warrant was issued, Judge Whiteley occupied the office of Judge of the Municipal Court of Hurst. In Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798, this Court addressed the issue of de jure and de facto officers, stating:

“Two persons cannot, at the same time, be in the actual occupation and exercise of an office for which the law provides only one incumbent. Thus, an officer de jure and an officer de facto cannot be in possession of the same office at the same time, nor can two different officers de facto be in an office for which the law provides only one incumbent.” (Emphasis added)

In the instant case Judge Whiteley and the three “alternate” judges purported to occupy the single office. We find that the issuance of the warrant may not be sustained as the act of a de facto magistrate. The search warrant under which appellant’s residence was searched and the evidence seized was not issued by a magistrate and was therefore void. Art. 18.01, V.A.C.C.P.

The trial court abused its discretion in revoking appellant’s probation. The order revoking probation is set aside and the cause is remanded.

      . Tex.Const. art. V, sec. 1, provides:
      “The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof . .

      . At the time the search warrant in question was issued, Hurst had a population of approximately 30,250.


author: BROWN, Commissioner. ODOM, Judge,

text:
    Roy Sylvester BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 52494.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied March 1, 1977.
    Melvyn Carson Bruder and Tom W. Mills, Jr., Charles H. Erwin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Edgar A. Mason, John Ovard and James K. Johnson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for rape under the provisions of the former Penal Code, Article 1183, Vernon’s Ann.P.C. Appellant was tried before a jury which assessed punishment at ninety-nine (99) years in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. Briefly summarized, the record reflects that the appellant abducted the prosecutrix from the parking lot of a Gibson’s Discount Center in Dallas. He overpowered her, pushed her into her own car and then drove the car away while holding her down in the front seat. He drove her to a home in Heath, Rockwall County, which adjoins Dallas County. Inside the house, he forced her to disrobe, then forced her to commit acts of oral sodomy on him and to submit to vaginal intercourse. He later drove her back to the Pleasant Grove area of Dallas, where they were spotted by a Dallas police officer who had been alerted by witnesses in the Gibson’s parking lot. A high-speed chase ensued after which appellant was apprehended.

Appellant’s first, fourth, fifth and sixth grounds of error concern the issue of venue. In his first ground of error appellant contends that the trial court erred denying his motion for instructed verdict because the State failed to prove venue in Dallas County. It is uncontroverted that the actual rape was committed in Rockwall County. Appellant contends that under the provisions of Article 13.22, Vernon’s Ann.C.C.P., in effect at the time of the 1973 indictment, venue would not be proper in Dallas County-

Article 13.22, supra, provides that

“Rape may be prosecuted in the county in which it is committed, or in any county of the judicial district in which it is committed, or in any county of the judicial district the judge of which resides nearest the county seat of the county in which the offense is committed. When the judicial district comprises only one county, prosecutions may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county . . .” (Emphasis added).

Appellant contends that this Court’s opinion in Phillips v. State, 459 S.W.2d 632 (Tex.Cr.App.1970), which would otherwise be dis-positive of this case, misinterpreted the italicized portion of Article 13.22 quoted above.

In Phillips, the prosecutrix testified that she was abducted as she was about to enter her car in the parking area of a lounge in Houston. She stated that the accused drove her “a good ways out” of Houston on the Hempstead Highway and stopped on a deserted, muddy road where the rape took place. She was unable to state whether this location was in Harris County. Presiding Judge Woodley noted that portion of Article 13.22 which provides that if “the judicial district comprises only one county, prosecution may be commenced and carried on in that county, if the offense be committed there, or in any adjoining county.” He then went on to state that “proof by a preponderance of the evidence that the rape was committed in Harris County, or in an adjoining county, would be sufficient proof of venue” in Harris County.

Appellant contends that this holding would be correct only if the county adjoining Harris County was a single county judicial district. Where the adjoining county is only one county of a multi-county judicial district, as in the instance case, appellant contends that venue is proper in that county or in any of the other counties comprising the judicial district, but would not be proper in an adjoining county which is not part of the judicial district.

In the instant case, Dallas County is a single county judicial district. See generally Article 199(14), Vernon’s Ann.C.S. and amendments thereto creating additional courts within Dallas County. Rockwall County is part of the 86th Judicial District which also includes Kaufman and Van Zandt Counties. Article 199(86), Vernon’s Ann.C.S.

It is undisputed that the actual rape took place in Rockwall County. Therefore under appellant’s interpretation of Article 13.22, supra, venue would be proper in Rockwall, Kaufman or Van Zandt Counties, but would not be proper in adjoining Dallas County because Rockwall County, where the offense was committed, is not a single county judicial district.

Support for appellant’s interpretation of the statute is found in Fortune v. State, 96 Tex.Cr.R. 569, 259 S.W. 573 (Tex.Cr.App.1924). That case interpreted Article 254, Vernon’s Ann.C.C.P., a forerunner of Article 13.22 containing an identical provision. The decision interpreted that portion of the venue statute to mean that “when the county in which the offense is committed comprises one judicial district, the prosecution may be in that county or any adjoining county.”

Phillips, on the contrary, interprets Article 13.22 to mean that venue is proper in a single county judicial district when the offense is committed there or in any adjoining county. We do not think that it was the intent of the Legislature to give Article 13.22 the meaning implied in Phillips.. To do so would mean that any rape occurring in any county bordering a large, metropolitan county which itself comprises a judicial district could be prosecuted in the courts of the single-county district. To illustrate, any rape occurring in any county which adjoins Dallas County could be prosecuted in Dallas County no matter where the pros-ecutrix was abducted. In view of the Legislature’s express desire that rape prosecutions should take precedence over other cases, see Article 13.22, supra, we think that the converse is true: That if a rape is committed in Dallas County, it can be prosecuted in Dallas County or any adjoining county.

We note that the Code of Criminal Procedure has no provision applicable to rape comparable to Article 13.12 (now Article 13.08) which provides that in theft cases venue is proper in the county where the property is stolen or in any county through or into which the thief may carry the property. Nor is there a provision similar to Kentucky Revised Statutes 452.550 which states,

“Where an offense is committed partly in one and partly in another county, or if acts and their effects constituting an offense occur in different counties, the prosecution may be in either county in which any of such acts occurs.”

See Moore v. Commonwealth, 523 S.W.2d 635 (Ky.Ct.App.1975).

The Phillips case and the subsequent cases of Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974) and Banks v. State, 530 S.W.2d 940 (Tex.Cr.App.1975) are distinguishable on their facts. In each of those cases the testimony established by a preponderance of the evidence- that the rape occurred in the county of prosecution. To the extent that Phillips misinterprets Article 13.22 (or Article 13.15) it is overruled.

Therefore, we find that venue was not proper in Dallas County and the trial court erred in denying appellant’s motion for instructed verdict.

In light of our disposition of this ground of error, we need not discuss appellant’s remaining contentions.

The judgment is reversed and the cause remanded.

ODOM, Judge,

concurring.

I reluctantly concur with the majority opinion because the language of Art. 13.22, V.A.C.C.P., is not subject to any other interpretation. It puzzles me, however, why the Legislature has constructed this “one way street” for rape prosecutions. If the rape is committed in a county comprising one judicial district, the prosecution may proceed in any adjoining county. But, a county comprising one single judicial district cannot prosecute a rape occurring in an adjoining county. I perceive no justification for this distinction. We must, however, adhere to the mandate of the statute.

PHILLIPS, J., joins in this concurrence.

      . Article 13.22 was amended effective January 1, 1974. Article 13.15, the new provision, is substantially the same as the former statute.


text:
    Juan GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 52707.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Frederick J. Griffin, Amarillo, for appellant.
    Tom A. Curtis, Dist. Atty., Bruce P. Sa-dler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder under V.T.C.A. Penal Code, Sec. 19.04 upon a plea of not guilty. The jury assessed punishment at fifty years.

The record reflects that appellant shot Cletus Cooper in his motel room during the early evening of August 4, 1974. Appellant’s wife was present in the deceased’s motel room at the time of the shooting and she was also shot, although not fatally wounded. Both appellant and his wife testified that they had been separated for a few weeks at the time of the shooting.

Appellant’s wife, Diane Gonzales, testified that, unknown to appellant, she had been seeing the deceased for several months. She stated that on the afternoon of August 4, 1974, appellant had come by her house and found the deceased present. At that time appellant told the deceased that he did not want Cooper seeing his wife. At 6:30 p. m. Mrs. Gonzales went with Cooper to his room at the Stardust Motel. Mrs. Gonzales testified that she and Cooper were lying on the bed when appellant entered the darkened room and began shooting.

Appellant testified that prior to August 4, 1974, he had never met the deceased and that he did not argue with Cooper during their afternoon meeting. He further testified that while taking his three children to the movies later that day his five year old daughter, Stephanie, told him that the deceased and her mother had been making her sleep on the floor beside the bed in which they were sleeping and that Cooper had been mean to her and spanked her. Stephanie then directed appellant to Cooper’s room at the motel.

Appellant testified that he went to the deceased’s motel room to tell him to leave his family and children alone and that at that time he did not intend to shoot Cooper. He further testified that he did not expect his wife to be in Cooper’s room because he had driven by her house on the way to the movies and her car was there and the front door was open. When appellant entered the room and saw his wife and the deceased on the bed, he pulled his gun and shot them both.

In addition to murder, the trial court charged the jury on involuntary manslaughter and criminally negligent homicide. However, the trial court refused appellant’s properly requested written charge on voluntary manslaughter. Appellant contends this was error and at oral argument in this cause the State agreed.

Voluntary manslaughter is defined in V.T.C.A. Penal Code, Section 19.04:

“(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
“(b) ‘Sudden passion’ means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
“(c) ‘Adequate cause’ means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.”

In the case at bar there is evidence which shows that the appellant acted under the immediate influence of a sudden passion which arose when he found his wife and the deceased lying on a bed in the deceased’s motel room. It is immaterial if the theory of voluntary manslaughter was raised by appellant's own testimony or if the case is doubtful. As was the rule in murder without malice cases under Article 1257c of the former Penal Code, once the issue is raised by the evidence, the trial court, without determining the weight or the truth or falsity of the testimony, is bound to submit the issue for determination by the jury. See Armentrout v. State, Tex.Cr.App., 515 S.W.2d 297.

We find that the issue of voluntary manslaughter was raised under the facts of this case. The trial court erred in denying appellant’s timely presented request charge on voluntary manslaughter.

The judgment is reversed and the cause remanded.


author: DALLY, Commissioner.

text:
    Roberto SILVA, Appellant, v. The STATE of Texas, Appellee.
    No. 52953.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.

      John A. Pope, III, Rio Grande City, for appellant.
    Arnulfo Guerra, Dist. Atty., Glenn H. Ra-mey, Asst. Dist. Atty., Rio Grande City, Jim Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of murder without malice, under the former Penal Code (1925); the punishment is imprisonment for 5 years.

The appellant complains that the evidence is insufficient to support his conviction for the murder of Francisco Chapa, and he asserts that the evidence conclusively shows that he acted in self-defense. He also asserts that a statement made by Francisco Chapa, prior to his death, was erroneously admitted in evidence as a dying declaration.

In the evening, on January 21, 1973, a number of persons had gathered at a small “beer joint” known as the Riverdale Inn; the appellant and Francisco Chapa were among those patronizing the place. There was some evidence offered of prior difficulties between Chapa and the appellant and his brothers. The evidence is rather meager and somewhat in conflict as to what precipitated the difficulty immediately prior to the time that Chapa was shot. There is some conflict in the evidence as to whether Chapa put the appellant and his brother out of the “beer joint,” or whether the brothers went outside and called to Chapa to come out. In any event, Chapa went outside and there is evidence he, with his fists in a fighting position, approached the appellant and his brother. The appellant fired four or five shots toward Chapa. Chapa was wounded in the chest, stomach, and hands. He was immediately taken to a hospital where he remained in the intensive care unit for eight days before he died as a result of the wounds which he had received.

The jury was charged on the law of self-defense. We find the evidence amply sufficient to support the conviction, and the issue of self-defense, which was an issue of fact, was resolved by the jury against the appellant.

Chapa’s wife went to the hospital and several hours after the shooting had occurred she had a conversation with her husband. She was permitted to testify that her husband said: “That these boys, these, men, had planned an ambush for him, that Domingo had gone in the tavern, called him out, made conversation, took him out, then just right from here came Roberto shooting at him and Domingo at the same time and shots through the back from Mariano.” Domingo and Mariano were brothers of the appellant.

It is the appellant’s contention that Cha-pa’s statement was not shown to be a dying declaration, its admission was a violation of his constitutional rights, and it was inadmissible because it was an opinion or conclusion. The deceased’s wife testified that her husband appeared to be “sane,” “normal;” she did not ask him any questions, and his statement was voluntary. She said she, in fact, attempted to get him not to talk in order to aid his recovery. Chapa had just been through an emergency operation, and the attending physician said that he had been honest with Chapa and his wife and that his prognosis for Chapa’s recovery was not good because of the vital organs which had been injured. The physician testified that he told Chapa and his wife that Chapa’s condition was serious, they were going to try to do everything possible, but they “were not sure he was going to make it.” Prior to making the statement Chapa told his wife that he was very sick; that he was not going to make it.

We find that there was a sufficient evi-dentiary predicate for the admission of Cha-pa’s statement as a dying declaration. See Article 38.20, V.A.C.C.P.; Munoz v. State, 524 S.W.2d 710 (Tex.Cr.App.1975); Whitson v. State, 495 S.W.2d 944 (Tex.Cr.App.1973); Arseneau v. State, 145 Tex.Cr.R. 587, 171 S.W.2d 132 (1943); Walker v. State, 227 S.W. 308 (Tex.Cr.App.1920).

The statement was admissible in evidence as a dying declaration, which is a well recognized exception to the hearsay rule. Its admission was not a violation of the appellant’s constitutional rights. See Burrell v. State, 18 Tex. 713 (1857); Taylor v. State, 38 Tex.Cr.R. 552, 43 S.W. 1019 (1898); Payne v. State, 45 Tex.Cr.R. 564, 78 S.W. 934 (1904); McCormick and Ray, Texas Evidence, Sec. 973.

The statement that the appellant and his brothers had ambushed the declar-ant was not an inadmissible opinion or conclusion, but was, rather, a shorthand rendition of facts such as those that have been held admissible as a part of a dying declaration. See Tucker v. State, 141 Tex.Cr.R. 428, 148 S.W.2d 1111 (1941); Fults v. State, 83 Tex.Cr.R. 602, 204 S.W. 108 (1918); Gaines v. State, 56 Tex.Cr.R. 631, 127 S.W. 181 (1910); Craft v. State, 57 Tex.Cr.R. 257, 122 S.W. 547 (1909); Pierson v. State, 21 Tex.App. 14, 17 S.W. 468 (1891). We have considered the authorities cited by the appellant and find that they may be distinguished on the facts.

The judgment is affirmed.

Opinion approved by the Court.

      . Article 38.20, V.A.C.C.P., provides:
      “The dying declaration of a deceased person may be offered in evidence, either for or against a defendant charged with the homicide of such deceased person, under the restrictions hereafter provided. To render the declarations of the deceased competent evidence, it must be satisfactorily proved:
      “1. That at the time of making such declaration he was conscious of approaching death, and believed there was no hope of recovery;
      “2. That such declaration was voluntarily made, and not through the persuasion of any person;
      “3. That such declaration was not made in answer to interrogatories calculated to lead the deceased to make any particular statement; and
      “4. That he was of sane mind at the time of making the declaration.”


author: DOUGLAS, Judge.

text:
    Reynaldo G. CANTU, Appellant, v. The STATE of Texas, Appellee.
    No. 53842.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Fred J. Manning, San Antonio, on appeal only, for appellant.
    Ted Butler, Dist. Atty., G. E. Wilcox, E. Dickinson Ryman, Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for -the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for possession of heroin. Trial was before the court upon a plea of guilty. Punishment was assessed at two years.

Initially appellant contends that the court erred in failing to conduct a pretrial hearing on his motion to suppress evidence. He argues that the failure to conduct such a hearing left him no alternative but to enter a plea of guilty. Article 28.01, V.A.C.C.P., which authorizes the court to set any criminal case for a pre-trial hearing before it is set for trial upon the merits, is not mandatory upon the court but it is directed to the court’s discretion. Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974). No error is shown. Further, where a plea of guilty is voluntarily and understandingly made, all non-jurisdictional defects including claimed deprivation of federal due process are waived. Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972).

Next, appellant contends that the evidence is insufficient to support the judgment. He argues that since only a trace of heroin was identified in the chemist’s report, the evidence is insufficient as a matter of law. On December 8,1975, the appellant waived trial by jury and entered a plea of guilty before the court. Before the court accepted the plea he was admonished in accordance with Article 26.13, V.A.C.C.P., and the trial court advised him of his right to a trial by jury and his right of confrontation and cross-examination and his other constitutional rights, and appellant acknowledged to the court that he had executed and understood the written waiver and consent to stipulation of the evidence. The forms used are the same as those described in Degay v. State, 455 S.W.2d 205 (Tex.Cr.App.1970). He expressly waived his privilege against self-incrimination and right of confrontation and cross-examination and agreed that the testimony could be stipulated. He admitted the allegations of the indictment were true and correct and added, “I, Reynaldo G. Cantu, confess that in Bexar County, Texas on November 13, 1974, I did then and there knowingly and intentionally possess a controlled substance: Heroin.” Such instruments, with various State’s exhibits including the investigation report, were introduced into evidence without objection. The investigation report shows that appellant was arrested and the officers seized a cellophane plastic baggie which contained “traces” of brown powder which field tested positive for opium derivatives. The baggie was then mailed to Dallas where the remaining traces of brown powder were tested positive for heroin. The net weight of the drug ingredient, heroin, in the remaining powder was a trace.

This alone is sufficient to support a plea of guilty under the provisions of Article 1.15, V.A.C.C.P. Cervalles v. State, 513 S.W.2d 865 (Tex.Cr.App.1974); Milligan v. State, 478 S.W.2d 552 (Tex.Cr.App.1972).

In Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972), the Court held that the court imposed minimum quantity requirement in Pelham v. State, 164 Tex.Cr.App. 226, 298 S.W.2d 171 (1957), did not apply to cases where the accused knowingly possessed the narcotic. Neither Section 4.05 of the Controlled Substances Act, which provides that one possessing a usable amount of marihuana commits an offense, nor Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976), nor Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976), has any bearing on this case because we are here dealing with the knowing possession of heroin which is an offense. There is no provision that one must possess a usable amount of heroin. See Rawls v. State, 449 S.W.2d 57 (Tex.Cr.App.1969).

He contends that the trial court erred in eliciting from him a confession as to an extraneous offense without first giving him a Miranda warning. The record shows that following acceptance of appellant’s plea of guilty the trial court assessed punishment at two years’ confinement and deferred sentencing until a pre-sentencing investigation could be completed thereby allowing the court to consider his application for probation. On December 23rd, a hearing was held on his application for probation at which time the court delayed a decision on the issue of probation for four months and he was ordered to attend the Patrician Movement, a drug abuse program.

On February 6, 1976, the court took up the matter of Cantu’s failure to remain in the Patrician Movement program. Questions by appellant’s counsel developed the fact that he had left the program so he could visit his wife and when he returned they would not admit him because he had been smoking marihuana. Appellant’s counsel, not the court, elicited this information from him. Appellant cannot be heard to complain of his own testimony brought out by his attorney.

He also contends that the court erred in denying probation. His contention is without merit. When the trial is before the court, and a motion for probation is filed, the trial judge has the absolute and unreviewable discretion either to refuse or to grant probation. Cisneros v. State, 501 S.W.2d 907 (Tex.Cr.App.1973); Saldana v. State, 493 S.W.2d 778 (Tex.Cr.App.1973).

Lastly, he contends his sentence of two years constituted cruel and unusual punishment. This is without merit. The punishment was at the bottom of the permissible range under the Texas Controlled Substances Act; it is not excessive, cruel or unusual.

No reversible error having been shown, the judgment is affirmed.


author: ROBERTS, Judge.

text:
    Albert PITTMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 54289.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

On May 25, 1976, a jury convicted appellant for theft of a Dodge Truck Tractor and Float Trailer of the value or more than $200.00 but less than $10,000.00, a third-degree felony. On the same date and upon appellant’s election to have the court assess the punishment, punishment was assessed at imprisonment for three (3) years, the court further being of the opinion that the best interest of society and appellant would be served by granting probation. Notice of appeal was immediately given.

Although appellant was found guilty and his punishment was assessed on May 25, 1976, the court’s written judgment was not signed and filed with the clerk of the trial court until May 27, 1976. The record does not show that notice of appeal was given after the written judgment was entered. Consequently, we have concluded that an appeal has not been properly perfected in this cause and dismiss the appeal.

Article 44.08(b), Vernon’s Ann.C. C.P., provides, that, in probation cases where imposition of sentence is suspended, notice of appeal shall be given or filed within ten days after overruling of the motion or amended motion for new trial and if there be no motion or amended motion for new trial, then within ten days after entry of judgment on the verdict. No motions for new trial were filed in the instant case; consequently, to have been timely, notice of appeal should have been given or filed within ten days after the entry of the judgment.

In Eastwood v. State, 538 S.W.2d 107 (Tex.Cr.App.1976), we rejected the proposition that the time for filing motions for new trial or notice of appeal begins to run on the date the appellant learns of the disposition of his application for probation. There we held that the time for filing motions for new trial or, in the event no such motions are filed, for giving notice of appeal, does not begin to run until the trial court has entered a judgment granting or denying probation. Consequently, in the instant case, since no motions for new trial were filed, the ten-day period for giving or filing notice of appeal began to run from May 27, 1976. The absence of such notice of appeal within the ten-day period following that date deprives this Court of jurisdiction, and requires dismissal of the appeal. See and compare Dullnig v. State, 504 S.W.2d 495 (Tex.Cr.App.1974).

We further note that the judgment which was entered in the instant case, after assessing the punishment, contains the language: “ . . . and the Court being of the opinion that the best interest of society and the defendant will be served by granting probation, an Order placing him on probation will be entered. . . . ” However, the judgment does not contain a statement that appellant was granted probation or an order requiring that he be placed on probation. The judgment is the instrument which should indicate the granting of probation. Eastwood v. State, supra. Moreover, the judgment should state the period for which probation is granted, since the punishment assessed and the probationary period may differ. See Article 42.12, Sec. 3, Vernon’s Ann.C.C.P. And, it is the better practice to incorporate in the judgment the terms and conditions of probation which the trial court imposes.

In view of what we have said above and to protect appellant’s right to appellate review of his conviction, upon receipt by the clerk of the trial court of our mandate of dismissal, the trial court should set aside its May 27, 1976, judgment. A new judgment should then be signed and entered in the presence of appellant and his attorney, which in addition to the statements found in the May 27th judgment should also include the period of probation and the terms and conditions thereof. If appellant still desires to appeal this conviction, he may then do so by the giving or filing of notice of appeal within a ten-day period after the entry of such judgment.

The appeal is dismissed.


author: KLINGEMAN, Justice. BARROW, Chief Justice,

text:
    CACTUS DRILLING COMPANY, Appellant, v. OZARK GAS & OIL CO. et al., Appellees.
    No. 15651.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 17, 1976.
    Rehearing Denied Feb. 9, 1977.
    John L. Sullivan, Philip M. Hall, Corpus Christi, for appellant.
    Tinsman & Houser, Inc., San Antonio, for appellees.
   KLINGEMAN, Justice.

This is a venue action. Cactus Drilling Company [Cactus] appeals from orders of the District Court of Zavala County, Texas, sustaining the respective pleas of privilege of defendants, Ozark Gas & Oil, Inc. [Ozark], Winn Exploration Co., Inc. [Winn], and C. Gorum [Gorum]; wherein the cause of action against Ozark was transferred to the District Court of Bexar County, Texas, and the cause of action against Winn and Gorum transferred to the District Court of Maverick County, Texas.

Plaintiff, Cactus, by one point of error asserts that the trial court erred in sustaining appellees’ pleas of privilege because Cactus’ pleadings show that the nature of its claim is one for foreclosure of a lien; and the record establishes that the property is located in Zavala County, Texas.

This suit was filed by Cactus in Zavala County, Texas. Plaintiff’s petition names three defendants; Ozark, Winn, and Go-rum. Such petition alleges that (1) defendants are oil and gas producers and that pursuant to contract plaintiff performed certain described drilling operations on two oil and gas wells on lands located in Zavala County, Texas; (2) the defendants are the owners of, or have interest in, the leasehold estate in such lands; (3) such drilling services aggregate $82,027.80, and are unpaid; (4) plaintiff, under the applicable provisions of the statutes of this State governing liens against oil and gas mineral properties, filed in the office of the County Clerk of Zavala County, Texas, a verified itemized account of its claim for services performed in the drilling of the two oil and gas wells and thereby fixed and perfected its statutory lien. There is attached to such petition a copy of such recorded lien, describing in detail the work done; stating that Winn, Ozark, and Gorum are the owners of the oil, gas, and mineral leasehold against which the lien is claimed; and describing the land situated in Zavala County, Texas; (5) plaintiff be granted judgment against defendants in the amount of $82,027.80, plus reasonable attorney’s fees, interest, and costs of court; seeking foreclosure of its statutory lien upon the leasehold premises therein described and the improvements thereon; and for order of sale, and for writ of possession.

All defendants filed pleas of privilege. Plaintiff timely filed its controverting affidavit in which it contends that (1) venue is proper in Zavala County, Texas under Subdivision 12, art. 1995, Tex.Rev.Civ.Stat. Ann., in that this is an action to foreclose a lien against the leasehold interests of defendants; (2) a statutory lien has been fixed and perfected for plaintiff under the statute governing liens pertaining to oil, gas, and mineral properties by the filing of plaintiff’s verified written account or claim of lien in the public records of Zavala County, Texas, as shown by the exhibits attached to plaintiff’s original petition; (3) at the time of the filing of its original petition, defendant, Winn, was the record owner of the oil, gas, and mineral estate, and defendants, Ozark and Gorum, were owners of equitable rights in, and operating interests in the oil, gas, and mineral leasehold estate; (4) the property involved is situated in Za-vala County, Texas. A copy of plaintiff’s original petition is attached to the controverting affidavit and incorporated as a part thereof for all purposes.

All defendants filed answers subject to their pleas of privilege; and defendant, Go-rum, filed an answer and counterclaim in which he states, among other things, that the account is not true and just because it does not make allowances for sums due and owing to him by plaintiff arising out of plaintiff’s negligence and breach of contract in connection with the drilling of an oil and gas well, to Gorum’s damages in excess of $250,000.00.

Subdivision 12, art. 1995, Tex.Rev.Civ. Stat.Ann., provides that a suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.

The rule is set forth in 1 MacDonald, Texas Civil Practice § 4.20 (1965), as follows:

Suits to foreclose liens upon real or personal property may be maintained in the county where the property or any part, is located. The lien may be an express contractual obligation or an equitable or implied lien. That the defendant may deny the existence of a lien does not defeat venue. But the pleading must be sufficient to show a lien ‘of which the plaintiff is entitled to claim protective benefit.’ . . The venue facts are: (I) the nature of the action, determined from the petition; and (II) the location of the property or a part thereof in the county at the time of institution of the suit, established by extrinsic evidence. A plaintiff who pleads a lien and shows the location of the property, or a part thereof, in the county need not establish by extrinsic evidence that he has a lien enforceable against the defendant.

This Court, in Hagan v. Anderson, 506 S.W.2d 298 (Tex.Civ.App.—San Antonio) writ ref’d n. r. e., 513 S.W.2d 818 (Tex.1974), said:

In order to maintain venue under Subdivision 12, a plaintiff need only show that his action is one for the foreclosure of a lien and that the property subject to the lien is located in the county in which suit is brought. The nature of the action as one for foreclosure of a lien is determined by the allegations of the petition, while the location of the land is established by extrinsic evidence. Despite some earlier holdings to the contrary, it is now established that a plaintiff who pleads a lien and shows that the land is located in the county in which his action has been filed need not establish by extrinsic evidence that he in fact has a lien enforceable against the defendant. Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950); Knape v. Davidson, 465 S.W.2d 448 (Tex.Civ.App., Tyler 1971, writ dism’d).

See also Agey v. Sidwell, 313 S.W.2d 313 (Tex.Civ.App.—Amarillo 1958, no writ); Burt v. Bill Lisle Drilling Co., 401 S.W.2d 267 (Tex.Civ.App.—Fort Worth 1966, writ dism’d); Irwin v. Par-Oil Well Servicing Company, 344 S.W.2d 893 (Tex.Civ.App.—Texarkana 1961, no writ).

Appellees recognize the rule that when a suit is brought to foreclose a lien on land, venue may be sustained under exception 12 by alleging a lien upon the property without the necessity of proving a valid debt and lien. Appellee maintains, however, that plaintiff must allege he has a valid lien and asserts that the plaintiff here failed to state an enforceable claim against the defendants for the foreclosure of a lien, and that plaintiff’s petition shows upon its face that plaintiff does not have an enforceable lien.

We disagree. From an examination of plaintiff’s pleadings, including the attached exhibits, we have concluded that plaintiff’s petition alleges a valid claim and lien upon the property involved; and that it is a suit for foreclosure of such lien. It is undisputed that the property involved is situated in Zavala County, Texas.

We hold that the trial court erred in sustaining the pleas of privilege of Ozark, Winn, and Gorum. The judgment of the trial court sustaining these pleas of privilege are reversed and remanded to the trial court of Zavala County, with instruction that the case be reinstated on the docket of such court for trial on the merits.

BARROW, Chief Justice,

dissenting.

I respectfully dissent to the rendition of the judgment. The record shows that ap-pellees, who were defendants below, moved for an instructed verdict at the close of appellant’s case. At that time counsel for defendants stated:

We would like at this time, Your Hon- or, if Mr. Sullivan has rested, to make a motion before we put on any evidence of our own. If the Court overrules our motion we will have evidence to put on of our own.

It was the contention of defendants that the pleading of plaintiff that it had a lien was made for the sole purpose of retaining venue in Zavala County. Although defendants did not expressly plead that the allegation of a lien in plaintiff’s controverting plea was fraudulently made, evidence to this effect was admitted without objection. Their motion for instructed verdict was made on the basis that this contention was shown by plaintiff’s own evidence. In making such motion, defendants expressly reserved the right to put on evidence should the motion not be granted. I would remand the case to the trial court to enable defendants to present their evidence. Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458 (1948).

      . Article 5473, Tex.Rev.Civ.Stat.Ann. (1958).

      .In Morgan Farms v. Brown, 231 S.W.2d 790 (Tex.Civ.App.—San Antonio) aff'd, Morgan Farms v. Murray, 149 Tex. 319, 233 S.W.2d 123 (1950), the Court said:
      It is the contention of appellants that before appellee could sustain venue in this case he would have to show from a preponderance of the evidence that he had a valid mechanic’s lien against the land involved. We overrule this contention. This Court has held on a number of occasions that where a suit is brought to foreclose a mortgage or other lien upon land or other property, venue may be sustained in the county where the land or other property is located, under the provisions of Subdivision 12 of Article 1995, Vernon’s Ann.Civ.Stats., by alleging a lien upon the property, without the necessity of proving a valid debt and lien. The nature of the suit is determined by a consideration of the pleadings and not the evidence.

      .Appellees rely upon such cases as Texas International Products v. Mustex, Inc., 368 S.W.2d 27 (Tex.Civ.App.—Fort Worth 1963, no writ); Harwood v. Hunt, 473 S.W.2d 287 (Tex.Civ.App.—Beaumont 1971, no writ); and Mulloy v. Humble Oil & Refining Co., 250 S.W. 792 (Tex.Civ.App.—El Paso 1923, no writ).

      .Plaintiff alleges, among other things, (a) that defendants are oil and gas operators and that plaintiff performed drilling operations for two oil and gas wells located in Zavala County, Texas; (b) defendants are the owners of or have interest in the leasehold estate in such lands; (c) that plaintiff has perfected and is a holder of a statutory lien for its drilling operations under the provisions of the applicable statutes for fixing liens against oil, gas, and mineral interests. There is attached to such a petition and made a part thereof the lien filed by plaintiffs in Zavala County, Texas.


author: McKAY, Justice.

text:
    Ronald J. MONESSON, Appellant, v. CHAMPION INTERNATIONAL CORP., DEL-MAR DIVISION, Appellee.
    No. 971.
    Court of Civil Appeals of Texas, Tyler.
    Dec. 2, 1976.
    Rehearing Denied Dec. 30, 1976.

      Joe B. Harrison, Daniel J. Sheehan, Jr., Wynne & Jaffe, Dallas, for appellant.
    Lester L. May, Kenneth A. Herridge, May, Troy & Block, Dallas, for appellee.
   McKAY, Justice.

This is a contract case. Suit was instituted by appellee, Champion International Corporation, Del-Mar Division (Del-Mar), against Ronald J. Monesson (Monesson) for failure to pay for cabinets manufactured, sold and delivered under a contract to Monesson for a housing project known as “Chimney Hill Townhomes”. Monesson answered and filed a counterclaim alleging that Del-Mar breached a contract between the parties by failing and refusing to deliver cabinets for all 420 units in the project at the agreed price and thereby caused him to suffer damages in excess of those claimed by Del-Mar. Del-Mar’s first amended petition, upon which it went to trial, pled in the alternative, in quantum meruit, and attached exhibits of the contract in question alleging that Monesson had agreed in writing to pay attorney’s fee. A stipulation was entered into by the parties that judgment should be rendered in favor of Del-Mar for $18,167.09 for cabinets delivered but not paid for, together with attorney’s fee of $2,500.00 in the event the court determined Del-Mar was entitled to attorney’s fee. Trial was then had on Monesson’s counterclaim before a jury, and a verdict was returned favorable to Monesson. The trial court granted Del-Mar’s motion for judgment non obstante veredicto and rendered judgment for Del-Mar in accord with the stipulations, which included the attorney’s fee. Monesson brings this appeal on three points.

In 1971 Monesson, a real estate builder and developer, decided to construct a townhouse project in North Dallas. The plan contemplated a four-phase development eventually resulting in the construction of a total of 420 townhouses. Monesson began accepting bids from various materialmen. Lestingi, a sales representative of Del-Mar, submitted to Monesson a written bid or proposal dated April 6, 1972, on a printed form. The proposal referred to the project and offered to supply various styles of cabinets at certain set prices, although no specific quantity was mentioned other than the reference to the “420 UNIT TOWNHOUSE PROJECT — CHIMNEY HILL”. The proposal also had the term “Prices are subject to change without notice.” Del-Mar being the successful bidder, Monesson and Del-Mar’s sales representative, Joe Lestingi, both signed the proposal offered by Del-Mar, the result of which is the agreement which is the subject of dispute in this case. Subsequently on January B, 1978, Monesson was requested to and did sign a proposal essentially identical to the one he had previously signed, because as the testimony showed, Lestingi wanted to confirm the previous agreement for phases 3 and 4. The January 3, 1973, instrument, on the same form, had the language “420 UNIT TOWNHOUSE PROJECT — CHIMNEY HILL — PHASE 3 & 4,” and in the subject to acceptance blank had “30” days. On January 18, 1973, another proposal on the same form was signed by Monesson and Larry Walls for Del-Mar which was designated “Addendum to Bid Dated January 3, 1973; 420 Unit Townhouse Project — Phase 3 & 4,” which added another model cabinet.

Del-Mar had Lestingi to request Mones-son to accept a three per cent (3%) increase in price, but Monesson refused. Del-Mar continued providing cabinets until late in 1973, when, after Lestingi had left the employ of Del-Mar, another of its sales representatives asked Monesson to “renegotiate” the contract by accepting approximately a thirty-three per cent (33%) price increase. Monesson refused the price increase; and on January 1, 1974, Del-Mar stopped shipping cabinets to Monesson. Monesson wrote Del-Mar on January 11, 1974, demanding that it honor the terms of the contract. Del-Mar replied by letter dated March 1, 1974, informing Monesson that it considered his failure to accept the price increase to be a breach of contract. This was followed by another letter to Monesson, dated March 7, 1974, from Del-Mar’s New York counsel, Stephen Brown, stating that Monesson was guilty of breach of contract and if Monesson obtained his cabinets elsewhere “We intend to include in our claim all losses suffered by Del-Mar” as a result of Monesson’s failure to perform under the contract. Del-Mar’s refusal to supply the remaining cabinets to Monesson at the contract price resulted in Monesson’s making a contract with another cabinet supplier for the remaining units, at a cost of approximately $63,000 more than the price agreed to by Del-Mar.

Monesson testified that prior to the 3% price increase request Del-Mar, through its chief executive officer Fisher, refused to give Monesson a requested three per cent (3%) advertising allowance on the ground that the contract fixed the prices to be charged for the entire development. Monesson also testified that Del-Mar had supplied cabinets to him for several previously built projects, and that the same contract form was used on each of them and that Del-Mar had never asked for a price increase on any other project. He testified that Del-Mar made him a proposal through their representative, Lestingi, and that he accepted it by signing it as he had all the others, and that it was his intention that the agreement was for the entire 420 units at fixed prices. Monesson further testified that the language “Prices subject to change without notice” was intended to apply so long as it was a proposal, but after he accepted the proposal it meant “We had a firm contract and I was entitled to rely upon those prices throughout the development and Del-Mar was entitled to rely upon my purchasing from them at those prices.”

Lestingi, Del-Mar’s sales representative, testified that it was his intention that the contract prices were fixed for the entire 420 units from time of Monesson’s acceptance, and that Del-Mar’s prices were based on the fact that Del-Mar bid on the entire 420 units, and that it was Del-Mar’s intention to give Monesson a commitment to supply the 420 units at the fixed prices set out in the contract. Also introduced was evidence of custom and practice in the building industry to the effect that offers to sell are made by proposals or bids, and that once a proposal is accepted by both parties, it is binding on both as to quantity and the prices become fixed.

Del-Mar objected to the testimony of Monesson and Lestingi on the ground that such evidence was a violation of the parol evidence rule and was an attempt to vary the terms of a written contract. The jury found in Special Issue Number One that the contract was for cabinets for all of the 420 townhouses; and in Special Issue Number Two, that the prices were fixed, according to the proposal, for the whole term of the contract. The trial court granted judgment notwithstanding the verdict on the basis that the findings had no support in the evidence and did so apparently for the reason that they were based on inadmissible parol evidence, contravening the unambiguous terms of a written contract, or that the parties had no contract at all. Appellant’s first two points attack this action of the trial court.

A trial court “may render judgment non obstante veredicto if a directed verdict would have been proper. . . . ” Rule 301, T.R.C.P. To sustain the action of the trial court in granting a motion non obstante veredicto it must be determined that there is no evidence upon which the jury could have made the findings relied upon, Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex.1974), or that the party in whose favor the motion was granted was entitled to a judgment as a matter of law. In reviewing a judgment notwithstanding the verdict on appeal it becomes a no evidence point, and all evidence must be considered in a light most favorable to the party against whom it was rendered and every reasonable intendment deducible from the evidence must be indulged in that party’s favor. Douglass v. Panama, Inc., supra; Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952).

Monesson maintains the trial court erred in rendering judgment non obstante in favor of Del-Mar because there is evidence to support the submission of each issue and the answers made thereto. From a review of the record we believe that the verdict of the jury is supported by ample evidence.

The Supreme Court said in Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980 (1941):

“If a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous. It follows that parol evidence is not admissible to render a contract ambiguous, which, on its face, is capable of being given a definite legal meaning. This rule obtains even to the extent of prohibiting proof of circumstances surrounding the transaction when the instrument involved, by its terms, plainly and clearly discloses the intention of the parties, or is so worded that it is not fairly susceptible of more than one legal meaning or construction.”

The rule is stated by Judge Calvert in Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951), thusly:

“. . .a contract is ambiguous only when the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. ... In other words, if after applying established rules of interpretation to the contract it remains reasonably susceptible to more than one meaning it is ambiguous, but if only one reasonable meaning clearly emerges it is not ambiguous.”

Also see Varo, Inc., v. Kross, 511 S.W.2d 719, 722 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.).

A contract must be considered and construed in its entirety, by its four corners, in attempting to determine the true intention of the parties. However, each clause or paragraph must be construed together with all other parts of the contract, but the intent of the parties concerning a particular matter may be determined from one sentence or paragraph only. 13 Tex.Jur.2d Contracts Sec. 113.

In City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 519 (Tex.1968), the court used the following language:

“. . . Likewise, the Court will consider the characterizing circumstances that surround the execution of a contract and where the terms are still not clear the Court will hear oral testimony ‘to ascertain the intent of the parties as expressed by the language used’ [Quoting Williston] . . . [A]ll parts of the contract are to be taken together, and such meaning shall be given to them as will carry out and effectuate to the fullest extent the intention of the parties.”

Applying the above rules of construction we are of the opinion that the term “420 UNIT TOWNHOUSE PROJECT — CHIMNEY HILL” is susceptible of two interpretations: (1) did it specify the quantity of cabinets Del-Mar agreed to supply to Monesson for the project, or (2) did it only designate the particular project for which the cabinets were to be supplied? We believe, therefore, that the term was ambiguous and that it was appropriate and proper for the trial court to admit extrinsic evidence of the intention of the parties and to submit an issue to the jury for a finding thereon. The jury found that Monesson and Del-Mar mutually intended the contract was to cover the entire 420 units.

Additionally, we believe the language “Prices subject to change without notice” is susceptible to two interpretations: (1) did the provision apply only so long as the instrument was an unaccepted proposal, or (2) did it apply after acceptance by Monesson and was, therefore, effective through the contract? In considering the entire contract, we are of the opinion that the above quoted provision is ambiguous and, therefore, extrinsic evidence was admissible to show the intent of the parties or custom and usage in the industry or course of dealing. Texas Business and Commerce Code, Sec. 2.202; Modine Manufacturing Co. v. North East Independent School District, 503 S.W.2d 833, 837 (Tex.Civ.App.—Beaumont 1973, writ ref’d n. r. e.). It follows that we believe it was appropriate to submit the issue to the jury. Trinity Universal Insurance Co. v. Ponsford Brothers, 423 S.W.2d 571, 575 (Tex.1968).

Under Del-Mar’s contention it could raise the prices of the cabinets to Monesson at its own discretion since the language “Prices subject to change without notice” was a part of the contract and is unambiguous. We disagree. In considering this provision together with all other provisions of the contract we believe it to be ambiguous.

Del-Mar furnished the form for the contract and typed in all the portions which were not printed on the form. The rule is that where ambiguity exists in a contract the agreement will be construed most strictly against the party who drafted it. Stowers v. Harper, 376 S.W.2d 34, 41 (Tex.Civ.App.—Tyler 1964, writ ref’d n. r. e.); Louisiana-Pacific Corp. v. Cain, 519 S.W.2d 528, 529 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.).

We sustain points one and two.

Appellant’s third point of error contends that the trial court was in error in awarding attorney’s fees to Del-Mar. The contention is that if Monesson is awarded his counterclaim for breach of contract, such will exceed the award of $18,167.09 to Del-Mar; hence, Del-Mar actually will not recover anything from Monesson and should not be awarded attorney’s fee. The appellant cites Article 2226, V.A.T.S., establishing a statutory claim for attorney’s fee in certain situations and cites cases holding that when an award of a counterclaim exceeds the original claim, Article 2226 is not applicable. However, in the present case attorney’s fees are provided by contract. On the bottom portion of the proposal signed by both parties is stamped the following: “In the event it shall become necessary to place this contract in the hands of attorneys for collection or suit, the purchaser agrees to pay a reasonable attorney’s fee and all costs incurred in the collection including any costs attendant to filing a mechanic’s lien." It was necessary that Del-Mar initiate litigation in an attempt to collect payment for cabinets Monesson had not paid for, and Monesson had agreed to pay a reasonable attorney’s fee in such event. Contrary to Monesson’s contention Art. 2226, V.A.T.S., does not apply even though the jury found damages for Monesson’s counterclaim in excess of the stipulated damages awarded to Del-Mar. Attorney’s fees were payable under the terms of the contract, and $2,500.00 was a reasonable fee as stipulated. Point of error three is overruled.

The evidence in the record is undisputed (and the jury found) (1) that Monesson, at the time of trial, had suffered damages of $12,743.08 for increased cabinet costs paid as a result of the refusal of Del-Mar to ship all the cabinets for Phases 3 and 4 at the prices in the contract; (2) that Monesson suffered damages of $3,266.40 for interest costs due to delays in closing sales of town-homes as a result of the refusal of Del-Mar to ship all of the cabinets for Phases 3 and 4 at the prices in the contract; and (3) that Monesson will suffer damages of $50,430.98 for the extra costs of cabinets which will have to be purchased to complete the Chimney Hill Townhome project as a result of the refusal of Del-Mar to ship all of the cabinets for Phases 3 and 4 at the prices in the contract.

The effect of our holding is that the trial court erred in failing to render judgment for Monesson on its counterclaim but the court was correct in its holding that Del-Mar should have judgment against Mones-son for $20,667.09. Since the jury found damages for Monesson in the total sum of $66,440.46, that sum less $20,667.09, which Monesson owed Del-Mar, would be $45,-773.37. Therefore, the judgment of the trial court is reversed, and judgment is here rendered for Monesson in the sum of $45,-773.37.

      . See exhibit on following page.

      . SPECIAL ISSUE NO. 1:
      “Do you find from a preponderance of the evidence that in executing Plaintiff’s Exhibit 1, as supplemented by Plaintiffs Exhibit 3, that Monesson and Del-Mar mutually intended that Plaintiff’s Exhibits 1 and 3 were to cover the entire 420 units of Chimney Hill Townhome project?
      “Answer ‘Plaintiff’s Exhibits 1 and 3 were intended to cover the entire project.’
      OR
      ‘Plaintiffs Exhibits 1 and 3 were not intended to cover the entire project.’
      “ANSWER: ‘Plaintiff’s Exhibits 1 and 3 were intended to cover the entire project.
      SPECIAL ISSUE NO. 2:
      “Do you find from a preponderance of the evidence that in executing Plaintiff’s Exhibit 1, as supplemented by Plaintiffs Exhibit 3, that Monesson and Del-Mar mutually intended that the kitchen and vanity cabinets prices which appeared thereon were fixed prices which would apply for the duration of the entire Chimney Hill Townhome project?
      “Answer ‘They intended that the prices were fixed for the entire project.’
      OR
      ‘They did not intend the prices would be fixed for the entire project.’
      “ANSWER: ‘They intended that the prices were fixed for the entire project.’ ”