author: CLEMENS, Presiding Judge. STEWART, Judge

text:
    STATE of Missouri, Respondent, v. Arthur Gene TALBERT, Appellant.
    No. 35898.
    Missouri Court of Appeals, St. Louis District, Division Two.
    May 20, 1975.

      John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Paul Allred, Jr., Asst. Circuit Atty., Charles B. Black-mar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
    Charles D. Kitchin, Public Defender, John F. Bauer, Asst. Public Defender, St. Louis, for appellant.
   CLEMENS, Presiding Judge.

A jury convicted defendant Arthur Tal-bert of felonious assault by shooting Michael Turner, a fourteen-year-old neighbor. After deliberating four hours the jury returned a guilty verdict, and the trial court sentenced defendant to 15 years’ imprisonment. On appeal, the crucial issue is whether there was substantial evidence defendant fired the shot that lodged a bullet in the victim’s back.

The State’s evidence: Defendant and Michael Turner lived in the same residential neighborhood. Michael had known defendant for years and was a friend of defendant’s son. There had never been trouble between them. On the afternoon of June 16, 1973 Michael was walking west toward his home on a sidewalk along the north side of the street. Defendant was also going home, driving east toward Michael at about five miles per hour. As defendant’s car passed him, Michael heard defendant say something he did not understand. Michael looked back and “I seen his arm come up with something black.” Michael then turned his head away, felt a sting in his back and fell to the ground. A Mr. Perkins, visiting in the neighborhood, heard a shot, not from defendant’s car, but from that direction. Perkins went to help Michael as he lay on the sidewalk. Neither Michael nor Mr. Perkins nor several persons nearby saw defendant with a gun or make a “shooting motion.”

Police arrived within ten minute§ and arrested defendant, who was sitting in the hallway of his home. Defendant was unarmed and “cooperative.” A police search of defendant, his car and the scene produced neither weapon nor spent ammunition. The police declined an invitation to extend their search into defendant’s home.

Defendant testified he did not speak to Michael Turner or shoot him and had no gun. Two others, defendant’s mother and a neighbor, testified they saw defendant drive up to his home and walk in; neither saw defendant with a gun.

At the threshold of this appeal lies defendant’s challenge to the sufficiency of the evidence. It must be sufficient for the jury to determine, beyond a reasonable doubt, that defendant did shoot Michael Turner. Here we distinguish between the weight of the evidence and the substantiality of the evidence of defendant’s guilt. The weight of the evidence is for the jury if, but only if, this court can first say there was substantial evidence of guilt. As was said in State v. Donnington, 246 Mo. 343, 151 S.W. 975[4] (1912), “we are not unmindful of the settled rule of appellate procedure that it is the province of the jury to weigh the testimony and to determine the facts. Nevertheless, when the question of the sufficiency of the testimony is properly presented, an appellate court cannot escape responsibility by shifting it to the jury.” This principle was followed in State v. Madison, 177 S.W. 347 (Mo.1915): “But where, as in this case, the direct proof is meager and not supported by a well-connected chain of circumstances, we are authorized in setting aside the verdict on the ground alone of the insufficiency of the evidence.”

This distinction between a jury’s weighing the evidence and a court’s passing on its substantiality was re-examined in State v. Gregory, 339 Mo. 133, 96 S.W.2d 47[1-6] (1936): “. . . since the test of substantial evidence is whether a jury reasonably could find the issue thereon, the result must depend in some measure upon the degree of persuasion required. In a criminal case liberty and sometimes life are involved, and there cannot be a conviction except upon a finding of guilt beyond a reasonable doubt. Necessarily, therefore, it becomes the duty of an appellate court as a matter of law to decide whether the evidence was sufficient to induce a belief of the defendant’s guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence; and in resolving that question the court undoubtedly can pass on the credibility of the testimony to the extent of determining whether it was substantial in the sense above explained. In no other way can the rights of the defendant be protected. It would be an incongruous situation if the court were compelled to let a conviction stand as being supported by evidence warranting a verdict of guilt beyond a reasonable doubt, when for any reason made manifest on the record the court is convinced the evidence reasonably could not support a conviction.”

The Gregory court noted that the appellate court must consider “all the circumstances of the ease.” Our court adhered to that comprehensive principle in Elam v. Allbee, 432 S.W.2d 379[1] (Mo.App.1968), when we said: “In determining the sufficiency of plaintiff’s case, he is entitled to all favorable evidence and inferences. A review of the evidence, however, is not limited to isolated statements: it embraces all evidence adduced by plaintiff.”

In the light of these principles, we examine fully the evidence the State contends supports its charge defendant shot Michael Turner.

No one but Michael Turner testified to defendant’s conduct: Michael said defendant was slowing down as he drove toward him. As the car passed, Michael looked back in response to defendant’s voice and saw defendant’s “arm come up with something black.” He testified defendant’s car was then quite close, “about from here to that desk.” After Michael looked forward again, he heard and felt a shot. As he fell to the ground and lay on his back Michael saw defendant parking his car nearby, “about from here to that brown chair.” Michael then saw defendant get out and walk into his house. This testimony was the only evidence supporting the State’s charge that defendant shot Michael. By this account, while bringing his car to a stop defendant would have to have turned around in his car, pointed a gun and fired behind him. Such movement and physical contortion are incompatible with accurate marksmanship. Defendant supposedly did this in broad daylight and in full view of numerous witnesses, none of whom saw the act. We add that there was a total absence of other incriminating evidence: No motive, no gun, no ballistics report to show the type of weapon from which the shot was fired, no evidence of the angle of entry of the bullet or the distance from which it was fired, no paraffin test of defendant to determine whether he had recently fired a gun.

Our examination of the record compels our conclusion the evidence was not “sufficient to induce a belief of the defendant’s guilt beyond a reasonable doubt in the minds of jurors of average reason and intelligence.” State v. Gregory, supra, l. c. 52.

The judgment is therefore reversed.

KELLY, J., concurs.

STEWART, J., dissents.

STEWART, Judge

(dissenting).

I would sustain the judgment.

Where the sufficiency of the evidence to sustain a conviction is questioned “. we accept as true all evidence in the record tending to prove the defendant guilty, whether such evidence is circumstantial or direct in nature, together with all favorable inferences that can reasonably be drawn therefrom, (citations omitted) It is not the function of this court to weigh the evidence; our review is limited to determining whether there was sufficient evidence from which reasonable persons could have found defendant guilty as charged.” State v. Johnson, 510 S.W.2d 485, 487 (Mo.App.1974).

With this criteria in mind the jury could reasonably have found the facts as follows. About 2:00 p. m. on June 16, 1973 Michael Turner, age 14, was walking west on the north sidewalk of Brantner St. From the photographs we ascertain that Brantner St. is a one way three lane street. Defendant, A. G. Talbert was driving east toward Michael at a very slow rate of speed, about 5 m. p. h. in the middle of the street. As he approached Michael he slowed further and as he was passing Michael defendant mumbled something. Michael turned his head toward the automobile and saw the defendant bring up his right arm. Defendant had a black object in his hand.

Though not of great significance there is some indication that Michael saw the defendant stick his hand out of the car with the black object in his hand. As Michael turned his head back toward the west he heard a shot, felt a sting in his back and fell to the ground with a bullet wound of his back. When Michael fell the defendant’s car was stopped in the middle of the street, as estimated by counsel, about 10 to 15 ft. from Michael. Defendant looked back at Michael then he drove the car to his mother’s house which is about 25 to 50 ft. east of the place where Michael was shot. The entrance to the house is within a few feet of the sidewalk. He then got out of the car and went into his mother’s house.

Jerry Perkins was seated on the front steps of a house across the street from where Michael was shot. Mr. Perkins heard a shot. The shot came from the direction of the defendant’s ear. He saw Michael fall to the sidewalk and ran to Michael who told him, “A. G. shot me.”

Michael suffered a gun shot wound of the left side of his back at the thoracic level. The bullet lodged in the upper right quadrant of the abdomen in the superior surface of the liver.

The police responded to the scene and remained with Michael for about 10 minutes then they went to defendant’s house and took defendant into custody. Defendant’s speech was slurred and there was a strong odor of alcohol on his breath. There were no weapons on defendant at the time he was taken into custody and none were ever located.

Michael did suffer a gun shot wound on the street. The only issue is whether the jury could reasonably find that defendant fired the shot. I feel that from the evidence set out above the jury could conclude beyond a reasonable doubt that defendant shot Michael Turner.

The only point raised by defendant which is pertinent to our discussion is that “The trial court erred in overruling the defendant’s motion for a verdict of acquittal and motion for a new trial because the guilty verdict was contrary to the weight of the evidence in that four witnesses directly contradicted the testimony of the victim and there was no direct evidence by any witness that the defendant shot Michael Turner or was in possession of a gun on the day in question.”

The testimony of defendant is the only testimony which can be said to be in conflict with that of the victim. The other witnesses merely testified that they did not see defendant with a gun. It does not necessarily follow that he did not have a gun. In any case it was for the jury in the first instance to resolve any conflicts in testimony and to determine the credibility of the witnesses. The trial court may consider the weight of the evidence when ruling on the motion for new trial but it is not a matter for review by an appellate court. State v. Talbert, 454 S.W.2d 1[6] (Mo.1970). Nor is it necessary that an eyewitness actually see the shooting where the circumstances warrant such finding. State v. Styles, 476 S.W.2d 591 (Mo.1972). Michael did see defendant with a black object in his hand. A shot followed immediately afterward. The shot came from the direction of the car. While Michael did not positively identify the object as a gun the jury could reasonably conclude that it was a gun. Irrespective of defendant’s degree of marksmanship a bullet did strike Michael. The bullet entered the body at a point which would be exposed to a shot from the car; the left side of the back and it moved down and to the right to lodge just above the liver in the upper right quadrant of the abdomen, an angle indicated by the relative position of the car and the victim.

Defendant testified that he had no gun and that he did not shoot Michael. He also testified that he heard no shot fired. The latter statement could have made him more suspect to a jury because there was a shot fired in close proximity to the defendant. Defendant had sufficient time to dispose of the gun. It is obvious the jury did not believe his testimony. The only other persons who testified on behalf of the defendant were members of his mother’s household. They merely testified that they did not see a gun in defendant’s possession.

For the reasons set out herein I would affirm the judgment of the trial court.

      . Although motive is not an essential element, “where the defendant denies the act, the question of motive becomes important. Absence of motive in such case tends toward innocence.” State v. Stapleton, 518 S.W.2d 292[2] (Mo. banc 1975).

      , There was no objection to the following in direct examination of Michael:
      “Q. How far down did he go, Michael, before he stopped this car from where he was when you saw him stick his hand out the car?
      A. About from here to that brown chair— to that brown chair right there (indicating).”
      Defendant in final argument stated: “Now, Michael says that Arthur stopped and said something to him; he couldn’t understand what it was. He stopped the car. He was about from that chair to the chair over there away from him (indicating), ten or fifteen feet. Stopped the car, pointed something out the window.”


source: Caselaw Access Project

author: WEIER, Presiding Judge.

license: Public Domain

text:
    Alphonso HUDSON, Movant, Appellant, v. STATE of Missouri, Respondent.
    No. 36018.
    Missouri Court of Appeals, St. Louis District, Division 1.
    May 6, 1975.
    Motion for Rehearing or to Transfer to Supreme Court Denied June 12, 1975.
    Application to Transfer Denied July 14, 1975.

      Charles Kitchin, Public Defender, Joseph W. Warzycki, J. A. Roche, Asst. Public Defenders, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., K. Preston Dean, II, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian Cosen-tino, Asst. Circuit Atty., St. Louis, for respondent.
   WEIER, Presiding Judge.

Movant appeals from the denial of his motion pursuant to Rule 27.26 V.A.M.R., to set aside and vacate his conviction and sentence for robbery in the first degree by means of a dangerous and deadly weapon. For a review of defendant’s convictions see: State v. Hudson, 478 S.W.2d 281 (Mo.1972); State v. Hudson, 491 S.W.2d 1 (Mo.App.1973).

Movant alleges here that he was denied his constitutional right to effective assistance of counsel because his attorney failed to preserve and to argue a certain issue on appeal. The ultimate test in determining the adequacy of legal representation is whether the efforts of counsel have reached a level so that a defendant has had a fair trial. Hall v. State, 496 S.W.2d 300, 303[3] (Mo.App.1973). It is a well-established principle that we will not review or reassess by hindsight the judgment of defense counsel on questions of strategy, trial tactics, or trial decisions. State v. Brownridge, 506 S.W.2d 466, 468[6] (Mo.App.1974). Possible errors of judgment do not support a claim of ineffective legal assistance.

We have reviewed this record. The trial court’s findings of fact are not clearly erroneous and are supported by the evidence. No error of- law appears. Further discussion of the facts and law would be of no precedential value. Accordingly, the order denying the post-conviction motion under Rule 27.26 is affirmed in compliance with Rule 84.16(b).

DOWD and RENDLEN, JJ., concur.


author: DIXON, Judge.

text:
    KANSAS CITY, Missouri, Respondent, v. Maurice L. TROUTNER, Appellant.
    No. KCD 27002.
    Missouri Court of Appeals, Kansas City District.
    June 2, 1975.

      Roy W. Brown, Larry C. Larson, Kansas City, for appellant.
    Aaron A. Wilson, City Atty., Louis W. Benecke, Walter J. O’Toole, Jr., Asst. City Attys., Kansas City, for respondent.
    Before WASSERSTROM, P. J., and SHANGLER and DIXON, JJ.
   DIXON, Judge.

This is an appeal from a conviction of the defendant involving a violation of an ordinance of the City of Kansas City, Missouri relating to the control of a motor vehicle while intoxicated. Upon conviction in the Municipal Court, the defendant appealed to the Circuit Court of Jackson County, and, on the 29th day of June, 1973, an appeal was heard by the court sitting without a jury. At the close of the evidence, the court said, “The defendant is found guilty and fined $100.00 and costs.” Defense counsel indicated an appeal would be taken and the bond was continued. On July 5, 1973, the defendant filed a motion for a new trial. No ruling on that motion for a new trial appears, but, by operation of law, it was overruled in ninety days or on or about October 5, 1973; and, on October 9, 1973, the defendant filed a notice of appeal to this court. The record is completely lacking of any final judgment, and the appeal must be dismissed. State v. Nichols, 474 S.W.2d 54 (Mo.App.1971); State v. Chase, 415 S.W.2d 731 (Mo.1967); State v. Grant, 380 S.W.2d 799, 803 (Mo.1964). Rule 27.20, V.A.M.R.

Appeal dismissed.

All concur.


author: ODOM, Judge.

text:
    Eddie HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 50015.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Ralph E. Taite, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, Don Driscoll and Jon Sparling, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of murder; punishment was assessed at life imprisonment. Appellant was tried jointly with Cornelius Jackson, whose conviction was affirmed by per curiam opinion in cause number 49858.

Appellant challenges the sufficiency of the evidence to corroborate the testimony of Cornelius Hubbard, the accomplice witness, who made a complete case against appellant and co-defendant Jackson.

The State, in its brief, recites the following facts as sufficient to supply the corroboration required by Article 38.14, Vernon’s Ann.C.C.P.:

“First, the evidence showed Exhibit No. 6 was the murder weapon. Secondly, the evidence showed that the appellant was seen in possession of the weapon both prior to and after the crime, ergo: the weapon was his. Thirdly, the evidence showed (although only circumstantially) that the appellant changed barrels to apparently try to avoid ballistics detection. Fourthly, the evidence showed that both prior to and after the crime the appellant lived in the house where the stolen weapons and the murder weapon were found.”

The offense was committed on the morning of March 7, 1973. On May 3, 1973, Dallas police officers executed a search warrant on the Curtis Gaines’ residence on Lanark Street in Dallas and discovered the murder weapon and two weapons taken from the victim’s house at the time of the offense. Several families, including appellant and his wife and child, were living in the house where the weapons were seized. Two of the weapons introduced in the case were found in the room occupied by co-defendant Jackson and one was found in Gaines’ room. The two in Jackson’s room were circumstances tending to connect him to the commission of the offense. None were found in appellant’s room. Furthermore, it was stipulated and uncontroverted that appellant was confined in the Dallas County jail at the time of the search and had been so confined for one month preceding the search. In view of appellant’s lengthy absence from the premises, the number of other persons residing in the house, and the fact that the weapons were found in rooms not occupied by appellant, but occupied by persons other than him, we are unable to conclude that the fact that appellant had resided in the Gaines’ residence constitutes a circumstance tending to connect him with the commission of the offense.

Although the State asserts that the evidence shows circumstantially that appellant exchanged barrels of two weapons in an attempt to avoid ballistics detection, the brief does not reference those portions of the record that would support such an assertion. Our own search of the non-accomplice evidence in the record reveals only that the barrels had in fact been exchanged. It does not show when or by whom the exchange was made.

The only non-accomplice evidence tending to connect appellant to the offense is the testimony that he was seen in possession of the murder weapon some seven months before the offense (by a witness who also testified that the weapon was owned by Gaines, another resident of the house) and testimony that sometime after the offense he was seen in possession of the murder weapon. The issue, then, reduces to this: Is evidence that the accused possessed the murder weapon seven months prior to the offense and at some time after the offense sufficient to tend to connect the accused with the crime as required by Article 38.14, V.A.C.C.P.?

The State has cited no cases which would support an affirmative answer to the question. In Forbes v. State, Tex.Cr.App., 513 S.W.2d 72, and Deal v. State, Tex.Cr.App., 508 S.W.2d 355, cited by the State, there were additional incriminatory facts. In Forbes we found:

“The corroborating testimony in the instant case reflects that on the day prior to the killing appellant purchased the weapon with which the fatal shot was fired and also acquired six rounds of .357 Magnum ammunition on that same date, and further reflects that he was in company with the principal Cul-ley within two hours of the killing, later asking a witness to remain silent about the fact she had seen him with Culley on the date in question.”

Deal presented an even stronger case of corroboration, and also recognized, “the presence of appellant two days after the offense in the house where the death weapons were found by the officers would not alone be sufficient to tend to connect him with the crime. . . .” 508 S.W.2d, at 357.

A case closer in point is that of Johnson v. State, Tex.Cr.App., 88 S.W.2d 108, cited by appellant, in which the non-accomplice evidence placed the defendant in the company of one identified principal the afternoon and evening of the date of the offense, both before and after its commission, and further proved that the shotgun used in the offense belonged to the defendant. This was held insufficient to corroborate the accomplice witness. The corroboration in the instant case was certainly of much lesser strength than that in Johnson, supra. We find it insufficient to tend to connect appellant with the offense committed.

The judgment is reversed and the cause remanded.

      . Neither Curtis Gaines nor any of the other residents of the house besides Harris and Jackson were implicated in the murder by the testimony of the accomplice witness Hubbard.


author: BROWN, Commissioner.

text:
    Wayne Kenneth ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 50111.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Keith Woodley, Comanche, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted by a jury in the County Court of Hamilton County of the offense of “failing to control speed of a vehicle on a public road,” and the jury assessed his punishment at a fine of $125.00.

Section 166(a) of Article 6701d, Vernon’s Ann.Civ.St. provides: “No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing.” Appellant was involved in an automobile accident shortly after 10:00 A.M. on the morning of June 20, 1973, on State Highway 36 about five and two-tenths miles northwest of Hamilton. On this date the maximum speed limit for automobiles on State or Federal Highways was 70 m. p.h. during daylight hours.

At the outset we are faced with a fundamentally defective complaint. After alleging the date, the complaint reads: “in the County of Hamilton and State of Texas, Wayne Kenneth Adams did then and there unlawfully fail to control speed causing accident against the peace and dignity of the State.” The complaint does not allege that appellant was operating (1) a vehicle (2) on a highway. Both of these facts are essential elements of the offense sought to be charged. Vallejo v. State, Tex.Cr.App., 408 S.W.2d 113.

The judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.


text:
    Joseph RICHARDS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 50069.
    Court of Criminal Appeals of Texas.
    June 18, 1975.

      Jack W. Manning and Barry P. Helft, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of robbery; punishment was assessed at seventeen years’ confinement.

In his sole ground of error, appellant contends the trial court erred in admitting an oral statement made by appellant shortly after his arrest, in violation of Article 38.22, Vernon’s Ann.C.C.P. Article 38.22 (1) (f) provides in part:

“Nothing contained herein shall preclude the admissibility ... of any statement that is the res gestae of the arrest or of the offense.”

The record reflects that appellant was arrested at an apartment, handcuffed, given his Miranda warnings, and taken to the patrol car. On approaching the patrol car, appellant observed that his brother was in the car. The arresting officer testified, “He [appellant] asked me why I had his brother in the car, and I said he was under arrest for armed robbery, he said, ‘He didn’t do it, I did.’ ”

We find the admission of the statement was not in violation of Article 38.22, supra, on the basis of the above quoted provision of that article.

The judgment is affirmed.


author: DALLY, Commissioner.

text:
    Thomas Ray McDANIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 50089.
    Court of Criminal Appeals of Texas.
    June 18, 1975.

      Stephen L. Halsey, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Richard Worthy, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of intentionally inflicting physical injury on a child fourteen years of age or younger in violation of Article 1148a, Vernon’s Ann.P.C. The punishment assessed by the jury is imprisonment for five years. Since we agree that it does present reversible error, we need only consider ground of error number four which alleges that the prosecutor during his jury argument commented on the appellant’s failure to testify.

The appellant did not testify and did not offer any evidence at the guilt-innocence phase of the trial. The State’s evidence shows that, although they were not married, the appellant and the mother of the injured child had been living together for several months. While the mother worked, the appellant was babysitting with her two year old daughter Y_ S— and her three year old son P_S_On the 23rd day of February, 1973, when the appellant was alone with the children, the back and buttocks of Y_ S_ were severely burned.

The prosecutor at the guilt-innocence phase of the trial argued as follows:

“[MR. WORTHY]: I submit to you that that it just couldn’t have happened that way. There is only those three points of contact, nothing on the arms or feet or hands, nothing there.
“Now, I told you why the circumstantial evidence charge was there; there were no eye witnesses. We know that. There were three people there that could tell you what happened, possibly tell you, and Y_and P_are too young. They are not legally competent to testify so we have to go with what we have got—
“[MR. HALSEY]: I have to object to the comment on the failure of the defendant to testify.
“[MR. WORTHY]: I said nothing about him testifying.
“THE COURT: I don’t construe it as any; overrule the objection.
“[MR. HALSEY]: Note our exception.
“THE COURT: The Court has instructed the jury in the—
“[MR. HALSEY]: Ask the jury to disregard the comments.
“THE COURT; No, sir.
“[MR. HALSEY]: Note our exception.”

The State asserts that this argument does not constitute reversible error because at best it is an implied or indirect allusion to the appellant’s failure to testify. In Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974), relied upon by the appellant, the arguments made and the rulings of the Court set out in the opinion are easily distinguished from the argument made and the ruling of the Court in this case.

For there to be reversible error because of an allusion or a comment on the failure of an accused to testify in his own behalf, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to such failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied allusion to the accused’s failure to testify. Koller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Winkle v. State, 506 S.W.2d 891 (Tex.Cr.App.1974); Turner v. State, supra; Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967).

Since the evidence shows that Y_ S— received serious burns on her back and buttocks while she and her brother, P_, were alone with the appellant, and since the argument made by the prosecutor consistent with this evidence is explicit and points out that there is no competent witness other than the appellant who can tell the jury what really happened, the necessary inference is that the comment referred to the appellant’s failure to testify. When the language of the argument is considered together with the evidence before the jury, the argument was manifestly intended to and was of such a character that the jury would necessarily take it as a comment on the failure of the appellant to testify. See Roller v. State, supra; Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974); Lipscomb v. State, 467 S.W.2d 417 (Tex.Cr.App.1971); Ramos v. State, supra.

The prosecutor’s argument which we construe to be a comment on appellant’s failure to testify violated both the appellant’s constitutional and statutory rights. The Fifth Amendment to the Constitution of the United States, and see Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968); Article 1, Sec. 10 of the Texas Constitution, Vernon’s Ann.St.; Article 38.08, Vernon’s Ann.C.C.P.

This argument cannot be condoned because it was made under the guise of explaining the circumstantial evidence charge. Orozco v. State, 428 S.W.2d 666 (Tex.Cr.App.1967), reversed by the Supreme Court of the United States on another ground, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1968), insofar as it is in conflict with this opinion on this ground is overruled.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    Fernando “Billy” FLORES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 50078, 50079.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    James S. Hale, on appeal only, Harlingen, for appellant.
    Fred Galindo, Dist. Atty. and James R. Odabashian, Asst. Dist. Atty., Brownsville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

In Cause No. 50,078 the conviction is for carrying a hand gun on premises licensed to sell alcoholic beverages, a violation of V.T.C.A., Penal Code, Sec. 46.02; in Cause No. 50,079 the conviction is for voluntary manslaughter, a violation of V.T.C.A., Penal Code, Sec. 19.04. The punishment in Cause No. 50,079 is five years, and the punishment in Cause No. 50,078 is two years cumulated with the punishment of five years assessed in Cause No. 50,079.

Cause No. 50,079 was tried before a jury; Cause No. 50,078 was tried before the court after a jury was waived. Both appeals have been briefed together; there are three grounds of error; the first is common to both appeals; it urges that the trial court erred in failing to dismiss the indictment because alleged discriminatory grand jury selection violated the appellant’s constitutional rights. There is proof that the appellant is of Mexican-American descent; it is his contention that there has been a systematic exclusion of Mexican-Americans in the selection of grand juries in Cameron County.

The appellant asserts that this case and the recent case of Partida v. State, 506 S.W.2d 209 (Tex.Cr.App.1974), in which the grand jury selection in the neighboring county of Hidalgo was similarly challenged, differ only “in that the statistical under-representation of Mexican-Americans in Hidalgo County was not quite as great as that shown here by the appellant’s proof.”

The evidence offered by the appellant and admitted by the court on the motion to quash the indictments, as it was in Par-tida v. State, supra, is statistical data from the United States Census of 1970 showing the same facts for Cameron County as were shown in Partida relative to Hidalgo County. The Mexican-American population in Cameron County was 76% while in Hidalgo County it was 79.2%. The proof in this case was that the panels from which the grand juries had been selected for the past ten years consisted of only 27.05% having Spanish surnames.

The January 1974 Grand Jury that indicted the appellant consisted of five members who had Spanish surnames and seven who did not. The Judge of the court where the motion to quash the indictment was presented and who overruled that motion had a Spanish surname. The petit jury selected to try the appellant for the offense of murder was composed of eight jurors who had Mexican-American surnames and another whose name was Edwina Garcia Wickham.

The appellant argues that he has made a prima facie showing that there was discrimination in grand jury selection and that the State has failed to rebut this evidence; consequently, he says, citing extensively from many authorities, the indictment should have been dismissed. We disagree and hold that our decision in Partida v. State, supra, where the facts were so similar, is controlling in this case. We will not repeat what was well stated in that opinion.

In ground of error number two the appellant complains that the punishment assessed by the trial court in Cause No. 50,079 was vague and indefinite and therefore void. The judgment, in part, reads: “The Court . . . finds and adjudges that the defendant . . . should be punished by confinement in the Texas Department of Corrections for a term of five (5) years . . .” The appellant directs our attention to the court’s docket sheet which reflects in part: “Court, after hearing arguments of counsel, assessed punishment at not less than two (2) years nor more than five (5) years in T.D.C.” The court reporter’s transcription of the proceedings made at the time the court assessed punishment is not in the record. The judgment controls over the recitations made on the court’s docket when there is a conflict between them. See Guinn v. State, 88 Tex.Cr.R. 509, 228 S.W. 233 (1921); Ex parte Rains, 113 Tex. 428, 257 S.W. 217 (1923); Boothe v. Durrett, 343 S.W.2d 553 (Tex.Civ.App.1961); Dobson v. Kyle, 387 S.W.2d 419 (Tex.Civ.App.1965).

In ground of error number three the appellant makes essentially the same complaint as was made in ground of error number two, and also complains that in the sentence in Cause No. 50,078 (Cause No. 74—CR-60-C in the trial court) cumulating punishment, the court referred to the conviction in Cause No. 50,079 (Cause No. 74—CR-62-C in the trial court) as “murder” rather than “voluntary manslaughter.” The appellant is correct. The cumulation part of the sentence in Cause No. 50,078 does recite that the conviction in Cause No. 50,079 was for “murder” rather than “voluntary manslaughter.” However, the cum-ulation order is sufficient in that it designates the court, the cause number in the trial court, the date of conviction, and the term of punishment in Cause No. 50,079. See Ward v. State, 523 S.W.2d 681 (Tex.Cr.App.1975); Phillips v. State, 488 S.W.2d 97 (Tex.Cr.App.1972). It appears that the error in naming the offense was merely a clerical error; the judgments and sentences in both cases are before this Court; we can and do correct the cumulation part of the sentence in Cause No. 50,078 referring to the conviction in Cause No. 50,079 to read: “voluntary manslaughter” rather than “murder.” See Craig v. State, 480 S.W.2d 680 (Tex.Cr.App.1972).

The judgment in Cause No. 50,078 is reformed and affirmed and Cause No. 50,079 is affirmed.

Opinion approved by the Court.


text:
    Roger WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 50212.
    Court of Criminal Appeals of Texas.
    June 18, 1975.
    Lonnie W. Duke, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Fred Rodriguez, C. Michael Schill and 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

DALLY, Commissioner.

This is an appeal from a conviction for aggravated robbery; the punishment, enhanced under the provisions of V.T.C.A., Penal Code, Section 12.42, is imprisonment for thirty years.

In the interest of justice under the provisions of Article 40.09, Section 13, Vernon’s Ann.C.C.P., we find that the indictment is fundamentally defective because it fails to allege an element of the offense. It fails to allege, as it must, that the appellant either (1) caused bodily injury to another, or (2) threatened or placed another in fear of imminent bodily injury or death. One or the other of these allegations is necessary,

V.T.C.A., Penal Code, Section 29.03, provides :

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.
“(b) An offense under this section is a felony of the first degree.”

V.T.C.A., Penal Code, Section 29.02, provides :

“(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.
“(b) An offense under this section is a felony of the second degree.”

The indictment in this case in pertinent part alleges:

. . on or about the STH day of JANUARY, A.D., 1974, ROGER WILLIAMS, hereinafter called defendant, did then and there intentionally and knowingly use and exhibit a deadly weapon namely: A PISTOL, to DALE STEVENSON, hereinafter called complainant, while the said defendant was in the act of committing theft of property, namely: A WALLET, from said complainant, the owner of said property, without the effective consent of the said complainant, and said acts were committed by the said defendant with the intent then and there to obtain and maintain control of the said property; . . .”

Compare the above allegations with the forms in Morrison and Blackwell, New Penal Code Forms, Sec. 29.03B, p. 33, and Texas Ann.Penal Statutes With Forms (Branch’s 3rd Ed.), Vol. 2, p. 320.

The judgment is reversed and it is ordered the indictment be dismissed.

Opinion approved by the Court.


author: McDONALD, Chief Justice.

text:
    M. A. SHAW, Appellant, v. R. C. HOLMES et al., and Raymond Phillips, Appellees.
    No. 5450.
    Court of Civil Appeals of Texas, Waco.
    May 8, 1975.
    Rehearing Denied June 12, 1975.

      James H. Martin, Dallas, for appellant.
    Rune, Byrne & Galloway, Michael Jay Rune, Dallas, Tom M. Snow, Terrell, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant M. A. Shaw from judgment against him of $3475.72 in favor of appellee Holmes, et al, and $725. in favor of appellee Phillips.

Holmes, et al, a lumber yard, sued M. A. Shaw for $3475.72 for building material alleged to have been delivered to Raymond Phillips’ building site upon the promise of Shaw to pay for same. Holmes, et al, alternatively sued Phillips for such amount on quantum meruit. Phillips filed a third party action against Shaw for $1500. for work allegedly performed for Shaw in modifying cameras.

Trial was before the court without a jury which rendered judgment for appellee Holmes, et al, against appellant Shaw for $3475.72; and for appellee Phillips against appellant Shaw for $725.

The trial court filed Findings of Fact and Conclusions of Law pertinent of which are summarized as follows:

FINDINGS OF FACT
1. On 15 June, 1972, M. A. Shaw entered an oral contract whereby Shaw represented to plaintiff lumber company that he would pay for building materials to be delivered to the home of Raymond Phillips.
2. Such representation of Shaw that he would pay for such materials induced plaintiff lumber yard to deliver the materials to Phillips.
3. Materials in the amount of $3,475.72 were delivered to the home of Phillips at the direction of Shaw.
4. The primary purpose of Shaw’s promise to pay plaintiff lumber company was for the direct benefit of Shaw, and not Phillips.
5. The direct benefit to Shaw was to allow Phillips to work for Shaw, which Phillips would not have done unless the building materials were delivered to his construction site, without his directly working on such construction.
6. Shaw wanted Phillips to construct a Cowboy TV antenna for him; time was of the essence for such construction, and Shaw agreed to pay for the materials delivered to Phillips to induce Phillips to construct the Cowboy antenna.
7. Phillips did not promise to pay plaintiff lumber company for the materials.
CONCLUSIONS OF LAW
1.The obligation of Shaw to plaintiff lumber company was a direct primary obligation to pay for materials secured.
FINDINGS OF FACT 3RD PARTY ACTION
1. Phillips and Shaw orally contracted whereby Shaw employed Phillips to modify certain TV camera equipment for him.
2. Shaw agreed to pay Phillips $25. per camera modified.
3. Phillips pursuant to the oral contract modified 30 TV cameras for Shaw.
4. Shaw paid Phillips $25. for the modification of the TV cameras.
5. Shaw has not paid Phillips for 29 cameras modified pursuant to the agreement.
6. Shaw owes Phillips $725.
CONCLUSIONS OF LAW 3RD PARTY ACTION
1. An oral enforceable agreement existed between Shaw and Phillips, for the modification of the TV cameras.
2. Shaw owes Phillips $725.

Appellant Shaw appeals on 48 points contending:

1. There is no evidence, or insufficient evidence, to support Findings 1 thru 7, and such findings are against the great weight and preponderance of the evidence.
2. Conclusion of Law 1 is contrary to the law and the facts.
3. There is no evidence, or insufficient evidence, to support 3rd Party Action Findings 1 thru 6, and such findings are against the great weight and preponderance of the evidence.
4. Conclusions of Law 1 and 2 on the 3rd Party Action are contrary to the law and facts.

James Hendricks a partner and manager of appellee lumber yard testified, as did appellant Shaw and appellee Phillips. For the most part on crucial issues their testimony is in conflict.

There is evidence to the effect Shaw was endeavoring to construct a TV antenna which would pick up at long distances the Cowboy football games which were played in Dallas but not televised for Dallas audiences. Phillips told Shaw he had or could build such an antenna. Time was of the essence to Shaw, as football season was at hand. Phillips was building his home himself. The purchase by Shaw of the materials from the lumber company freed Phillips to give his full attention to the building of the antenna which Shaw desired. The witness Hendricks testified that Shaw promised to pay plaintiff for the materials. Phillips did go to work for Shaw while carpenters assumed the job of working on Phillips’ home.

There is further evidence that Phillips modified 30 TV cameras for Shaw at an agreed price of $25. per camera. There is evidence that Shaw paid Phillips $25. and did not pay on the other 29 camera modifications, which amounts to $725.

Since this case was tried without the aid of a jury it was the duty of the Trial Judge to pass on the credibility of the witnesses and weight to be given their testimony, and he could reject the testimony of any witness in whole or in part, if he saw fit to do so. State of Texas v. Lynch, Tex.Civ.App., NWH, 390 S.W.2d 335; Hood v. Texas Indemnity Insurance Co., 146 Tex. 522, 209 S.W.2d 345.

There is ample evidence to support the findings of the trial court under the rule of In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660; and the trial court’s conclusions of law are correct. Appellant’s points and contentions are overruled.

Affirmed.


author: OSBORN, Justice.

text:
    Joe STRASSER et ux., Appellants, v. STATE FARM GENERAL INSURANCE COMPANY, Appellee.
    No. 6433.
    Court of Civil Appeals of Texas, El Paso.
    May 7, 1975.

      Sam J. Dwyer, Jr., El Paso, for appellants.
    Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, John A. Grambling, Malcolm Harris; Donald Hagans, II, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This case involves damage to a house from a leak in a water line in a bathroom. It was alleged that the leak was very small and impossible to detect and that it permeated the foundation of the walls through earlier settlement cracks and also through erosion and soaking of the subsoil around and under the foundation, and as a direct and proximate cause of said water infiltration into the natural foundation cracks and surrounding foundation areas, the foundation gave way and caused the walls to crack and require replacement. Suit was filed seeking recovery under a fire and extended coverage policy with an attached physical loss endorsement. The case was tried to the trial Court, without a jury, and a take-nothing judgment was entered against the Appellants. We affirm.

Appellants in their amended petition alleged that on July 1, 1968, and again on July 1, 1971, they purchased a policy of insurance from Appellee to protect from all risk of physical loss to their home, and that commencing on or about June 1, 1971, the walls of the residence began cracking and said structure suffered great damage.

Only two witnesses testified. The agent who wrote the policy acknowledged that State Farm had the coverage on the house since 1965 and that all premiums had been paid. He said Mr. Strasser gave notice of his claim on April 3, 1970. The agent identified a policy issued by Appellee to Appellants for the period from 7-1-71 to 7-1-74 and also a policy for the period from 7-1-65 to 7-1-68 and said there was also a policy for the years from 1968 to 1971 with similar coverages for that period of time.

Mr. Strasser testified that there was an interior water leak on the inside of the wall which completely destroyed the floors and plaster of both the master bedroom and a half bath, and that the flow of water undermined the foundation and the whole corner of the house gave way creating huge cracks extending from the area of the leak to the southeast corner of the house. He identified several pictures which showed cracks in the walls and the area where the leak occurred. He was of the opinion that the cost of repairs would be $5,500.00.

On cross-examination, he said he first noticed the effects of the leak about 1965 when the plaster started to fall off the wall in the master bedroom. He said he probably made a claim against Appellee in March or April, 1970, when the repairs to the water line were made. He acknowledged that all the damage did occur prior to March or early April, 1970.

The Appellee in addition to its general denial alleged two exclusions under the physical loss coverage, one with regard to loss by settling, shrinkage, or expansion in foundations, walls, floors, or ceilings; and the other concerning loss from surface and flood waters.

The Appellants by two points of error contend. that the judgment of the trial Court is contrary to the evidence and the law and that the evidence established coverage within the provisions of the insurance policy. First, it must be noted, as contended by Appellee, that there is a fatal variance between the pleading and the proof. Mr. Strasser testified that all of his damage occurred prior to June, 1970. The leak was repaired some time in March or April, 1970, and no further damage occurred after the repairs were made. The Appellants’ last pleading, their first amended original petition, which was actually a trial amendment filed five days after the trial Court heard the evidence, alleged a loss “commencing on or about June 1, 1971.” This is a substantial variance and it is fatal to any recovery. Dueitt v. Barrow, 384 S.W.2d 214 (Tex.Civ.App.—Corpus Christi 1964, no writ). Timely objection was made during trial to the fact that the evidence was not in conformity with the pleading, and even though permission was granted to file a trial amendment, the amended pleading did not conform to the proof in the case.

Once the Appellee alleged policy exclusions, the burden was upon the Appellants to negate such defenses. Sherman v. Provident American Insurance Company, 421 S.W.2d 652 (Tex.1967). The trial Court, by its judgment, has at least impliedly found against Appellants on these issues and held that they did not sustain their burden of proof. Where the party who has the burden on an issue attacks a negative finding or the failure of the trial Court to find in its favor on an essential element of its case, such finding may be attacked as being against the great weight of the evidence. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Prunty v. Post Oak Bank, 493 S.W.2d 645 (Tex.Civ.App.—Houston (14th Dist.) 1973, writ ref’d n.r.e.). In such a case, the entire record must be considered and the evidence supporting the judgment weighed along with the evidence to the contrary. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Based upon the entire record, we find no error in the implied finding of the trial Court which supports the judgment in this case.

Although this case does not involve a Texas homeowner’s policy, the exclusions are very similar. Appellee relies upon Twin City Fire Insurance Company v. Guthrie, 427 S.W.2d 901 (Tex.Civ.App.—Fort Worth 1968, no writ), and Park v. Hanover Insurance Company, 443 S.W.2d 940 (Tex.Civ.App.—Amarillo 1969, no writ), in contending that the exclusions upon which it relied prevented there being any coverage in this case. In discussing those two cases and the Texas standard homeowner’s policy, one author concludes that if the damages claimed constitute settling, then there is no coverage regardless of the reason why the house in fact settled. Gollaher, Texas Homeowners Policy, 24 Sw.L.J. 636 (1970).

The Appellants’ two points of error are overruled. The judgment of the trial Court is affirmed.


author: RAY, Justice.

text:
    Jim WADE et ux., Madeline H. Wade, Appellants, v. Jac A. AUSTIN, d/b/a Jac A. Austin Co., Realtors, Appellee.
    No. 8247.
    Court of Civil Appeals of Texas, Texarkana.
    May 27, 1975.

      Robert F. Ashley, Ashley & Welch, Dallas, for appellants.
    Fred H. Benners, Benners, Shettle & Hill, Dallas, for appellee.
   RAY, Justice.

This is a suit for a realtors commission based upon an exclusive listing agreement, plus attorney’s fees. Appellee (plaintiff) Jac A. Austin, d/b/a Jac A. Austin Co., Realtors, a duly licensed Texas real estate broker, brought suit against Jim Wade and wife, Madeline H. Wade, appellants (defendants) to recover a realtors commission of six per cent of the sales price of the property and attorney’s fees under Article 2226, Vernon’s Tex.Rev.Civ.Stat.Ann. plus interest at the rate of six per cent per an-num from October 24, 1972.

The trial court determined as a matter of law that the exclusive listing agreement was not unconscionable, and then submitted the fact issues to a jury for its determination. The court entered judgment in favor of appellee for the sum of $13,500.00 with interest at the rate of six per cent per annum from October 24, 1972 until paid, plus attorney’s fees in the sum of $6,500.00 with six per cent interest per annum from the date of the judgment until paid, and provided that the sum of $6,500.00 for attorney’s fees should be reduced by $1,500.00 to $5,000.00 in the event no application for writ of error or other appeal was thereafter initiated to the Supreme Court of Texas; and further provided, that the sum of $5,000.00 should be reduced by an additional $1,500.00 to $3,500.00 in the event no appeal was taken to the Court of Civil Appeals ; and all court costs incurred.

Appellants have perfected their appeal and submit twenty points of error for our consideration.

The contract made the basis of this suit was entered into by and between the appellants and the appellee on August 29, 1972, and was to continue for a duration of ninety days thereafter. In accordance with the contract, appellee listed the appellants’ property located at 3918 Normandy, Dallas, Texas, with the Multiple Listing Service of the Dallas Board of Realtors. Appellee Austin also ran two newspaper advertisements in the classified section of the Dallas Morning News, advertising the property for sale on the second and third days of September 1972. The property appeared in the Multiple Listing Service book for the North Dallas Sector on September 8, 1972. The property was shown to two prospective purchasers by appellee. On September 26, 1972, the appellee conducted a Multiple Listing Service open house and showed the property to members of the Dallas Real Estate Board. No sign was placed in the yard of the house advertising the property for sale because appellants had asked ap-pellee not to do so.

On September 21, 1972, appellant Jim Wade called appellee to tell him that he had been called by a David Florence, who had informed appellant Wade that he was interested in purchasing the property. Mr. Florence further stated that he did not want to work through a real estate broker. Appellee Austin contacted Mr. Florence on September 21, 1972, and Mr. Florence again stated that he did not want to work through a real estate broker.

Mr. Florence submitted to Jim Wade a written offer to purchase his property. Appellant Wade took the Florence offer to appellee Austin on September 28, 1972, for appellee’s advice concerning such offer. Appellee advised appellant Wade that the Florence offer would require Wade to obtain a current survey and that the survey deletion exception as required in the offer would be a fifteen per cent additional charge to the cost of the title policy that Wade would be required to pay. Austin further advised Wade that Wade was at the negotiating stage and this was the time to make a counter offer if appellant so desired. Appellant Jim Wade stated that he desired to make a counter offer for the sale of the property in the sum of $265,000.00. Appellee then marked out the price of $200,000.00 on the Florence offer and wrote in the figure $265,000.00 and advised appellant Jim Wade to initial that change and all other changes that had been made in the Florence offer. Jim Wade then initialed the changes which had been made in the Florence offer.

Appellant Wade delivered the Florence offer with the changes and initials to Mr. Florence on September 29, 1972. Wade called Florence on October 6, 1972 and went to his office and negotiated for the sale of the property at a price of $225,000.-00. Wade and Florence entered into a contract of sale for the property on October 6, 1972.

Appellant Wade elected to negotiate directly with the prospective purchaser, David Florence, and at appellants’ request, appellee Austin did not attend the closing of the sale at the title company and, therefore, did not receive his commission at the closing. Upon appellants’ refusal to pay appellee a settlement offer of a five per cent commission, appellee Austin filed suit for the full six per cent commission set out in the exclusive listing agreement.

Under the contract, appellee had the sole right to sell the property during the listing period, and the contract expressly provided that appellee would be compensated for services rendered in the event of sale, regardless of who sold the property.

Jac Austin was out of town to see his new born grandchild at the time Wade concluded direct negotiations with Florence. However, other members of the Jac A. Austin Co. were available during the complete transaction.

Appellants contend that appellee had not endeavored with all reasonable efforts to find a purchaser for appellants’ real estate and, consequently, should not be compensated. However, the jury expressly found that appellee did endeavor with all reasonable efforts to find a purchaser for the property, and we have concluded that the record substantiates that finding.

Appellants’ first point of error contends that appellee Austin was not entitled to recover reasonable attorney’s fees pursuant to Tex.Rev.Civ.Stat.Ann. art. 2226, because appellee Jac A. Austin, was not the procuring cause of the sale of the real property nor did he produce a purchaser ready and willing to purchase the property on the terms of the contract. Appellants did not request a “procuring cause” special issue nor did they request findings of fact relative to procuring cause. However, we are convinced that the “procuring cause” contention is without merit under an “exclusive right to sell” contract. The test is whether the broker rendered services as required by the contract and whether the property is sold during the listing period, regardless of by whom. The purpose of the “exclusive right to sell” contract is to avoid a broker rendering all reasonable efforts to sell a piece of listed property and then encounter the claim of the owner that the broker is not entitled to be compensated because the owners sold the property directly without the broker being the procuring cause. The “procuring cause” contention is tenable under an “exclusive agency to sell” contract but not “exclusive agency with sole right to sell” contract.

It is undisputed that the Wade property was sold to Florence during the listing period, and the jury found that appellee endeavored with all reasonable efforts to find a purchaser for the Wade Real Estate on the terms set forth in the exclusive listing agreement.

The evidence is undisputed that appellee performed the usual and customary services consistent with reasonable efforts to find a purchaser for the Wade Real Estate and only failed to perform those services which Wade asked Austin not to perform.

Appellee brought suit for specific performance under the contract asking to be paid for services rendered, as requested and contracted for by appellants. The exclusive listing contract provided, “If said property is sold prior to the termination of this agreement, whether by you, by me, or by any other person, or if the property is sold within 180 days after the termination of this agreement to anyone with whom you or any member of Mutltiple Listing Service negotiated during the period of this contract and of whose name you have notified me by written notice delivered to me personally or mailed to me at the address stated below within 10 days after the termination of this agreement, in either such event, I agree to pay to you in Dallas, Texas, a commission in cash equal to 6% of the selling price . . . ”.

In Texas Reserve Life Insurance Co. v. Security Title Company, 352 S.W.2d 347, 352 (Tex.Civ.App. San Antonio 1961, writ ref’d n.r.e.). the court said, “It has been repeatedly held by the courts of this State that the services of a real estate broker in effecting a sale of real estate are personal services within the meaning of Article 2226, supra, and in suits by such brokers for commission on such sales, attorney’s fees are properly allowed. Bradshaw v. Marcum, Tex.Civ.App., 321 S.W.2d 352; Reinke v. West, Tex.Civ.App., 303 S.W.2d 419; Craft v. Netherton, Tex.Civ.App., 276 S.W.2d 855.”

The contract for the sale of the real property was consummated between the Wades and Florence, during the 90 day period of the exclusive listing agreement, the property sold and title delivered with the advice of and consultation with appellee Austin and such other service as appellants would allow appellee to perform. The contract between the seller and purchaser of the real estate involved, was fully performed. Appellee had fully performed the obligations required of him under the terms of the exclusive listing agreement (a bilateral contract) and sought the specific performance of that portion of the contract allowing him 6% of the sales price for his realtors’ commission. Appellants did not breach their contract by revoking the exclusive listing agreement, but only refused to pay the realtors commission. The amount of the attorney’s fee having been stipulated between the parties, the liability therefor was established by appellee Austin.

Under the pleadings of appellee for specific performance, as contrasted to a suit for breach of contract, and under the facts of this case in which appellee fully performed his end of the bargain under the exclusive listing agreement by extending numerous services in behalf of his client, and where the Wades had not revoked the exclusive listing agreement prior to substantial performance by Austin, we con-elude that the trial court properly allowed appellee his attorney’s fee pursuant to Article 2226, Tex.Rev.Civ.Stat.Ann.

Appellants’ first point of error is overruled.

In point of error number two appellants contend that the trial court erred in overruling their challenge for cause related to the juror James Philip Glasgow. Glasgow stated that he derived his income from the brokerage of real estate and that he did not know if he were capable of answering whether he could be fair and impartial in this case. However, he later stated that he could be fair and impartial and that he could make an impartial decision. Subsequently, Glasgow was asked by appellants’ attorney, “All right, then I will simply ask you if you have any reservations about your ability to make an impartial decision?”

Glasgow answered, “Yes, I do. As far as — I’m waiting for that moment to see. I think that my decision would be impartial, but I think that being in the shoes and making my income that way, that I tend to have the feeling — I can identify, that’s my environment, I can identify — not to say anything against the Defendant whatsoever. I just mean that I think that I can be impartial, but . . .”.

Later juror, Homer E. Warlick, III, a high school and college friend of Calvin Hill of Fred Benner’s Law Firm, became juror number 24 when another juror was excused. Appellants exercised all six of their peremptory challenges which included using one of their peremptory challenges on the juror Glasgow. Appellee exercised all six of his peremptory challenges. Because there were no double strikes, the juror Warlick became juror number 12 selected to serve on the jury that tried the case.

Appellants made no objection to the court concerning Mr. Warlick’s being an objectionable juror.

The voir dire testimony of Glasgow raised a fact question for the trial court to decide regarding the existence or not, of bias or prejudice so as to disqualify Mr. Glasgow for cause. The trial court had an opportunity to hear the testimony of the prospective juror, to observe his demeanor and to determine whether Mr. Glasgow could be a fair and impartial juror. Appellants did not establish that Glasgow would be biased or prejudiced as a matter of law. We conclude that the trial court was in a better position to evaluate the sincerity and capacity for fairness and impartiality of the juror than this court. The Swap Shop v. Fortune, 365 S.W.2d 151 (Tex.1963); Compton v. Henrie, 364 S.W.2d 179 (Tex.1963). In order to have properly complained of having to use a peremptory challenge to strike Mr. Glasgow from the jury list, and thereafter having to take an objectionable juror (Warlick), it was necessary that appellants object to taking Mr. Warlick as a juror before appellants exercised their peremptory strike of Mr. Glasgow. Carpenter v. Wyatt Construction Company, 501 S.W.2d 748 (Tex.Civ.App. Houston 14th Dist.1973, writ ref’d n. r.e.); O’Day v. Sakowitz Brothers, 462 S.W.2d 119 (Tex.Civ.App. Houston 1st Dist. 1970, writ ref’d n.r.e.); and, Hammon v. Texas & New Orleans Railroad Company, 382 S.W.2d 155 (Tex.Civ.App. Tyler 1964, writ ref’d n.r.e.). Appellants’ second point of error is overruled.

We have reviewed appellants’ point of error number three suggesting that the trial court erred in refusing to submit special issues and an instruction to the jury on the defense of fraud in the inducement to enter into the exclusive listing agreement. It is doubtful that the pleadings or the evidence would support the submission of the requested issues or instruction, but more fundamental is the fact that the jury found that appellee did endeavor with all reasonable efforts to find a purchaser for appellants’ property. Thus, such was tantamount to a finding that appellee Austin had fully performed his end of the bargain. The appellants did not revoke the exclusive listing agreement, but made the sale of their property after accepting and following the advice of their realtor, Jac Austin. Under the facts of this case, appellants have waived their right of recision based upon fraud in the inducement to enter into the exclusive listing agreement. Rosenbaum v. Texas Bldg. & Mortg. Co., 140 Tex. 325, 167 S.W.2d 506, 508 (Tex.Com.App.1943, opinion adopted). There the court stated “ . . . if a person who is induced by fraud to enter into a contract continues to receive benefits under the contract after he becomes aware of the fraud, or if he otherwise conducts himself in such manner as to recognize the contract as subsisting and binding, he thereby affirms the contract and waives his right of rescission. An express ratification is not necessary; any act based upon a recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it has the effect of waiving the right of rescission.”

The testimony reveals that after David Florence had contacted Jim Wade and Wade had sought the advice of Jac Austin concerning the future negotiations between Wade and Florence, there was no attempt by Jim Wade to cancel the exclusive listing agreement with realtor, Jac Austin. Jim Wade testified that after it was decided that he would negotiate directly with Florence and seek the advice of Jac Austin, who would remain in the background, that Wade never had any discussion with appel-lee about wanting to cancel the listing agreement. Austin was continuing to list the property and trying to do what he could to sell the property. Jim Wade stated, “I intended for him [Jack Austin] to try and sell it and advise me on my dealings with Mr. Florence.” Appellants’ point of error number three is overruled.

Appellants’ points of error four through sixteen complain of the finding of the trial court that the exclusive listing agreement was not unconscionable.

The testimony established that a person wishing to list his residential property with the Multiple Listing Service must sign the form exclusive listing agreement made the basis of this suit. The listing must be for a minimum number of days and the agreement provides for payment of a commission to equal to six per cent of the selling price of the property if sold during the term of the listing, whether sold by the realtor, owner, or any other person. It is not compulsory that a real estate broker belong to the Multiple Listing Service, but only a member of the Multiple Listing Service can list property with the Multiple Listing Service in Dallas.

Appellants called appellee and requested appellee to sell their property and to place the listing with the Multiple Listing Service.

Section 2.302 of the Tex.Bus. & Comm. Code Ann., V.T.C.A., gives the court the power to determine, as a matter of law, whether a contract is unconscionable at the time it was made. If it appears to the court that the contract or any clause thereof may be unconscionable, then the court shall afford the parties a reasonable opportunity to present evidence as to the contract’s commercial setting, purpose and effect to aid the court in making the determination of unconscionability. This section is intended to allow the court to pass directly on the unconscionability of the contract or particular clause therein and to make a conclusion of law as to its uncon-scionability. The official code comment states the following:

“The basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. Subsection (2) makes it clear that it is proper for the court to hear evidence upon these questions. The principle is one of the prevention of oppressions and unfair surprise (Cf Campbell Soup Company v. Wentz, 172 F.2d 80, 3d Circuit 1948) and not of disturbance of allocation of risks because of superior bargaining power.” In 1 Anderson’s Uniform Comm. Code 147, the author states relative to Section 2.302 that “the Code gives the court power to refuse to enforce unconscionable contracts or clauses but does not define unconscion-ability. To some extent content may be given to the concept by regarding this power as the successor to the historic power of equity courts to refuse to grant specific performance on the ground of unconscion-ability, and of courts of law to refuse to enforce contracts on grounds of public policy.
“The Code provision is not designed, however, to relieve a person from what proves to be a bad bargain, for the principle is not aimed at ‘disturbance of allocation of risks because of superior bargaining power,’ and the fairness of the contract at the time it was made is the time as of which the contract is to be judged.”

In the instant case, we have reviewed the contract and have concluded that the trial court was correct in deciding that the exclusive listing agreement was not unconscionable.

Appellants contend that the exclusive listing agreement was unconscionable because it provided for the payment of a commission to the appellee in the absence of any services by appellee. We disagree with appellants. The plain language of the contract provides that appellee will file the listing with the Multiple Listing Service of the Dallas Board of Realtors. It further provides that the realtor shall endeavor with all reasonable efforts to find a purchaser for said real estate on the terms set forth and may take such actions to sell the property as the realtor may deem advisable in his discretion, including the listing of the property with cooperating brokers, as well as the other members of the Multiple Listing Service. It is undisputed that the listing was filed with the Multiple Listing Service of Dallas, and the jury found that appellee had endeavored with all reasonable efforts to find a purchaser for the real estate. We do not have a case in which the realtor performed no services, and we do not pass upon that question.

In determining whether a contract is unconscionable or not, the court must look to the entire atmosphere in which the agreement was made, the alternatives, if any, which were available to the parties at the time of the making of the contract; the non-bargaining ability of one party; whether the contract is illegal or against public policy, and, whether the contract is oppressive or unreasonable. At the same time, a party who knowingly enters a lawful but improvident contract is not entitled to protection by the courts. “In the absence of any mistake, fraud, or oppression, the courts, as such, are not interested in the wisdom or impolicy of contracts and agreements voluntarily entered into between parties compos mentis and sui juris. Such parties to contracts have the right to insert any stipulation’s that may be agreed to, provided they are neither unconscionable nor otherwise illegal or contrary to public policy. It has accordingly been said that, almost without limitation, what the parties agree upon is valid, the parties are bound by the agreement they have made, and the fact that a bargain is a hard one does not entitle a party to be relieved therefrom if he assumed it fairly and voluntarily. A contract is not unenforceable on the ground that it yields a return disproportionate to the expenditures in time and money, where there has been no mistake or unfairness and the party against whom it is sought to be enforced has received and enjoyed the benefits.” 17 Am.Jur.2d 561 Contracts, Sec. 192, Improvident, oppressive, or unconscionable agreements. Two types of abuses must generally be present to produce a finding of unconscionability. The first abuse is a procedural abuse which may arise in the contract formation, such as the nonbargaining ability of one party. The second type of abuse usually required to be present to warrant a finding of unconscionability would be an abuse concerning substantive contract terms. Whether the printed terms of a form contract are so one-sided as to be unreasonable is an example of a substantive abuse. See Spanogle, Analyzing Unconscionability Problems, 117 U.Pa.L.Rev. 931, at 932 (1969).

There appears to be only one case construing Section 2.302 of the Tex.Bus. & Comm. Code Ann. as it related to a listing agreement such as that with which we are concerned in the present case. In Kaye v. Coughlin, 443 S.W.2d 612 (Tex.Civ.App. Eastland 1969, no writ) the court concluded that an exclusive listing agreement similar to the one here involved, was not unconscionable at the time that it was made and that the contract contained no provisions which were against public policy. However, we must point out that the court stated, “We find nothing in the record to indicate that the appellee contended in the trial of the case that any portion of the listing contract was unconscionable.” There the court awarded Kaye his six per cent commission under the terms of the exclusive listing contract though Kaye and his agents were not the procuring cause of the sale of the property. The court concluded that the expressed provisions of the contract were complied with when the realtor showed the property to prospective purchasers who subsequently purchased the property directly from the owner after the ninety day listing period but within thirty days following the termination of the listing period as provided for in the contract.

Our determination of the circumstances surrounding the Dallas exclusive listing agreement and the entering into the agreement by the parties does not lead us to the conclusion that the agreement is unconscionable.

Appellants do not contend that the contract violates public policy or any particular statute.

Appellants urge that a procedural abuse existed which made the listing contract unconscionable. The Wades state that the contract was oppressive because they were forced to accept all the terms of the exclusive listing agreement and, therefore, had no bargaining power when they entered into the agreement. Appellants had listed other property with appellee apparently on similar terms and specifically requested that this listing be filed with the Multiple Listing Service. There were alternatives available such as an open listing contract, an exclusive agency to sell, a special contract between the parties and the right to sell the property themselves without using a realtor. Thus, appellants had other methods by which they could have elected to dispose of their property, but they voluntarily chose an exclusive right to sell contract which afforded them the benefits of the Multiple Listing Service which they would not have otherwise had. This meant that their property had the possibility of being exposed for sale by all of the members of the Dallas Board of Realtors as well as other licensed realtors. Procedural abuse is not present in this case.

Appellants’ contentions that substantive abuse existed is also without merit. Ap-pellee was required to file the listing with the Multiple Listing Service and to endeavor with all reasonable efforts to find a purchaser for the real estate, but the method of finding a purchaser is left to the realtor. Appellee used the customary methods such as showing the property, advertising, taking calls from other realtors, cooperating with other brokers, filing the listing with the Multiple Listing Service and allowing other members of the Multiple Listing Service to show the property.

We do not believe appellants have suffered any injury by the failure of the trial court to make and file appellants’ requested findings of fact and conclusions of law in view of what we have already said relative to unconscionability. Appellants’ points of error four through sixteen are overruled.

This court has considered appellants’ seventeenth point of error in which it is contended that the exclusive listing agreement is unenforceable because of the lack of mutuality. In view of our holding that appellee had fully performed his end of the bargain, the contract is therefore not now subject to recision for lack of mutuality. 31 Tex.Jur.2d 238 Contracts, Sec. 91 Performance of agreement. Appellants’ point of error number seventeen is overruled.

In appellants’ points of error eighteen and nineteen it is urged that the findings of the jury in response to special issues 1 and 2 were against the overwhelming weight and preponderance of the evidence. In special issue No. 1 the jury found that Jac A. Austin Co., Realtors, endeavored with all reasonable efforts to find a purchaser for the Wade Real Estate on the terms set forth in the exclusive listing agreement and in special issue No. 2 found in favor of appellee Austin on a negative submission of the same issue. The testimony and evidence presented at the trial support the findings of the jury. Appellants’ points of error eighteen and nineteen are overruled.

We have examined appellants’ twentieth point of error stating that the -cumulative effect of all the errors established the appellant did not receive a fair trial and would require a reversal of the judgment. Since we have found no error committed by the trial court, appellants’ twentieth point of error is overruled.

The judgment of the trial court is affirmed.