author: SAM D. JOHNSON, Justice.

text:
    SOUTHWESTERN INVESTMENT COMPANY, Petitioner, v. Robert W. MANNIX, Respondent.
    No. B-6337.
    Supreme Court of Texas.
    July 27, 1977.
    Rehearing Denied Nov. 2, 1977.

      Clayton & Stubblefield, Cleo G. Clayton, Jr., Amarillo, for petitioner.
    Kelleher, Kunczt & Loveland, Robert M. Kunczt and James G. Boyle, Austin, for respondent.
   SAM D. JOHNSON, Justice.

Application for writ of error was made to this court, and we handed down a per cu-riam opinion which gave our reason for refusing the writ with the notation “no reversible error.” 20 Tex.Sup.Ct.J. 216 (March 5, 1977). On motion for rehearing, the writ of error was granted, and the per curiam opinion is withdrawn. The following opinion is substituted.

Robert Mannix, as debtor, sued Southwestern Investment Company [SIC] as as-signee of a retail installment contract which allegedly contained nine violations of the Texas Consumer Credit Code, Texas Revised Civil Statutes Annotated, Article 5069-6.01, et seq., and seven violations of the federal Truth-In-Lending Act, 15 U.S. C.A., Section 1601, et seq., and Regulation Z, 12 C.P.R., Section 226.1, et seq. SIC counterclaimed for the monthly payments, totaling $499.20, which would become due under the retail installment contract. The trial court found six violations of state law and five violations of federal law and granted Mannix’ motion for summary judgment. SIC’s counterclaim was dismissed. The trial court awarded Mannix $731.68 as statutory damages plus $1,000 attorneys’ fees. SIC appealed the summary judgment rendered against it, but not the dismissal of its counterclaim. The court of civil appeals affirmed the summary judgment. 540 S.W.2d 747. We affirm the judgments of the trial court and the court of civil appeals.

Mannix purchased $1,181.04 worth of stereo equipment from Banner Sales Company in San Antonio. He made a cash down payment of $381.04 and executed a retail installment sales contract for the remaining balance of $800. Mannix agreed to purchase credit life insurance for $15.48, which increased the total amount financed to $815.48. The finance charge on the $815.48 was $182.92, representing an annual percentage rate of 20.24 percent and bringing the total of the twenty-four payments to $998.40. The $998.40 total was to be paid in twenty-four monthly installments of $41.60 each, commencing on February 22, 1974. Banner assigned the sales contract to SIC, which provided the form contract to Banner. Apparently, it is a normal procedure for Banner to contact SIC prior to the sale of goods by Banner to a consumer such as Mannix. If SIC agrees to purchase from Banner any contract executed by the consumer, SIC supplies Banner with the form contract which the consumer (in this case Mannix) is to sign. The pertinent portions of this contract are set out on following page:

Subsequent to the execution of this contract Mannix instituted this litigation. When SIC filed its counterclaim alleging “[t]here is presently due and owing by Cross-Defendant [Mannix] on such contract the sum of $499.20, exclusive of attorneys fees,” Mannix was not and had not been behind in his payments. From the record it does not appear that Mannix was ever late in his payments.

The trial court found a total of eleven violations of the applicable law. The trial court held the following provisions of the contract violated Texas law:

1. The requirement that Mannix purchase fire insurance did not comply with Article 5069-6.02(5)(d), which requires the retail installment contract to disclose any separate charge included for insurance, specifying the type of insurance and the terms of coverage, or with Article 5069-6.-04, which allows the creditor to require the buyer to insure property sold, but which requires the contract to “state the kind, coverage, term and amount of premium for such insurance.”

2. The delinquency charge provision failed to comply with Article 5069-6.02(11), which allows the creditor to include in the contract a provision for a delinquency charge only “on each installment in default for a period of more than ten days ..”

3. The requirement that Mannix, the buyer, pay for any damages to real estate due to repossession and the provision which allowed forceable repossession violated Article 5069-6.05(4), which provides in pertinent part that “no retail installment contract or retail charge agreement shall: . . . (4) Provide for a waiver of the buyer’s rights of action against the seller or holder or other person acting therefor for any illegal act committed in the . repossession of goods; . . .”

4. The deduction of unpaid delinquency charges from any refund of unearned interest upon prepayment did not comply with Article 5069-6.02(10), which allows the buyer to prepay in full at any time before the final due date and which sets forth the formula for the refund of the unearned interest upon such prepayment.

5. The deduction of $12 from any refund of unearned interest upon prepayment also violated Article 5069-6.02(10), and this deduction was not authorized by Article 5069-6.02(9)(e), which provides that the minimum time-price differential, i. e., interest, which may be charged on the retail installment contract in the instant ease would be $12.

6. The acceleration of the unearned interest, if there was a default prior to the final due date, did not comply with the formula for the refund of unearned interest contained in Article 5069-6.02(10).

The trial court, in addition, held the contract violated federal law in the following manner:

7. The placement of the provision for a security interest in after-acquired property violated Regulation Z, Section 226.8(a)(1), which provides that disclosures under the circumstances of the instant case required by Section 226.8(b)(5) shall be on “the same side of the page and above the place for the customer’s signature; . . . ” Section 226.8(b)(5), in pertinent part, requires: “A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit . . ..If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.”

8. The prepayment penalty of $12 violated Regulation Z, Section 226:6(a), which requires disclosures to be “made clearly, conspicuously, [and] in meaningful sequence,” and Regulation Z, Section 226.8(a), and Section 226.8(b)(6), which together require the disclosure of “any penalty charge that may be imposed by the creditor or his assignee for prepayment of the principal of the obligation . . ..”

9. The description of the security interest was inadequate and thereby violated Regulation Z, Section 226.8(b)(5).

10. The right of the creditor to accelerate the installments was not disclosed in accordance with Regulation Z, Section 226.-8(a)(1) and Section 226.8(b)(4), which require under the circumstances of the instant case the disclosure of penalties for default by the debtor on “the same side of the page and above the place for the customer’s signature.”

11.The terms “finance charge” and “annual percentage rate” were not printed more conspicuously than other required terminology in violation of Regulation Z, Section 226.6(a).

SIC appealed to the court of civil appeals urging each of these eleven findings as a point of error. The court of civil appeals affirmed on the basis of three violations. Two violations of state law were found by the court of civil appeals: Article 5069-6.-02(11) [point 2, ten-day late charge], and Article 5069-6.02(10) [point 6, acceleration of unearned interest]. One violation of federal law was found by the court of civil appeals: Regulation Z, Section 226.8(a)(1) [point 7, disclosure of security interest]. SIC appealed to this court contending there were not any violations of state or federal law and raised the same eleven points of error.

At this juncture, we note that our disposition of this case does not require a consideration of all eleven points raised by SIC. The parties stipulated that damages in the amount of $731.68 and reasonable attorneys’ fees in the amount of $1,000 were to be awarded if there existed one violation of state law and one violation of federal law. We also note that SIC has not raised at any point in these proceedings the defense of accidental and bona fide error nor any defense available to it because of its status as an assignee of the installment contract.

“In determining the meaning of a statute, the dominant consideration is to ascertain the intention of the Legislature . This intention is to be found in the language of the statute itself.” Jones v. Del Andersen and Associates, 539 S.W.2d 348, 350 (Tex.1976). “An equally fundamental rule of statutory construction is that the intention of the Legislature must be ascertained from the entire Act, and not from isolated portions thereof.” Calvert v. Texas Pipe Line Company, 517 S.W.2d 777, 781 (Tex.1974).

When construing the statutes involved in SIC’s points of error, this court must not only be guided by these two rules of interpretation, but also the purpose expressed by the Legislature in the following declaration of intent:

“(1) Many citizens of our State are being victimized and abused in various types of credit and cash transactions. These practices impose a great hardship upon the people of our State.
“(2) Credit in its various forms is one of the most essential and vital elements of our economy. It can be truly said that credit affects every citizen every day. Credit transactions in our State amount to many billions of dollars per year.
“(3) Credit abuses now existing in our State stem from the fact that many types of credit transactions are not now subject to effective public regulation and control and the penalties imposed for usury do not provide effective or workable safeguards in this vital area of economic activity.
“(4) Such abuses are especially prevalent in the area of consumer transactions both cash and credit. Unscrupulous operators, lenders and vendors, many of whom are transient to our State, are presently engaged in many abusive and deceptive practices in the conduct of their businesses. These unregulated practices bring great social and economic hardship to many citizens of our State. They impose intolerable burdens on those segments of our society which can least afford to bear them — the uneducated, the unsophisticated, the poor and the elderly.
“(5) These facts conclusively indicate a need for a comprehensive code of legislation to clearly define interest and usury, to classify and regulate loans and lenders, to regulate credit sales and services, and place limitations on charges imposed in connection with such sales and services, to provide for consumer education and debt counseling, to prohibit deceptive trade practices in all types of consumer transactions, and to provide firm and effective penalties for usury and other prohibited practices.
“(6) It is the intent of the Legislature in enacting this revision of Title 79 of the Revised Civil Statutes of Texas, 1925, to protect the citizens of Texas from abusive and deceptive practices now being perpetrated by unscrupulous operators, lenders and vendors in both cash and credit consumer transactions and to implement the mandate of Section II of Article XVI of the Constitution of Texas which authorizes the Legislature to classify loans and lenders, license and regulate lenders, define interest and fix maximum rates of interest, and thus serve the public interest of the people of this State.” Declaration of Legislative Intent, Texas Laws 1967, Chapter 274, Section 1, at 608. Texas Revised Civil Statutes Annotated, Volume 15, pp. 1-2 (1971).

VIOLATIONS OF STATE LAW FIRE

INSURANCE: At the outset, SIC urges a point not considered by the court of civil appeals. SIC argues that there was no violation of Article 5069-6.02(5)(d) or Article 5069-6.04, both of which concern property insurance.

Clearly there was no violation of Article 5069-6.02(5)(d). The pertinent text of that provision is as follows:

“The retail installment contract shall contain and disclose the following items:
“(d) The aggregate amount, if any, included for insurance, if a separate identified charge is made therefor, specifying the type or types of insurance and the term or terms of coverage; . . .” [Emphasis added.]

The contract in issue indicates no “separate identified charge . . . made” for property insurance. Since Mannix was not charged by SIC for any property insurance, it was not necessary for the information required by Article 5069-6.02(5)(d) to be contained in the installment contract.

Although Article 5069-6.02(5)(d) was not violated, Article 5069-6.04 was. It provides in pertinent part:

“(2) A seller or holder may . . .request or require a buyer to insure property involved in such [retail installment] contract or agreement, .
“(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the buyer a statement which shall clearly and conspicuously state that insurance is requested or required in connection with the contract, . [and]
“(5) The contract or agreement must state the kind, coverage, term and amount of premium for such insurance.” [Emphasis added.]

SIC argues there was no requirement for any insurance under this retail installment contract. An examination of the instrument refutes this contention. The following provision is contained on the back of the installment contract: “5. The Debtor agrees to insure such Goods against loss by fire in favor of the Secured Party, its successors or assigns.” There are no marks of any kind on the contract to indicate that this provision was to be deleted. SIC maintains that the placement of what appears to be a zero in the blank opposite Item 6 [Item 6 reproduced below* refers to property insurance and appears on the front of the contract], and the failure to complete the remaining blanks contained in Item 6 indicates no insurance was required. To the contrary, it is obvious that this blank opposite Item 6 was intended to be used to comply with Article 5069-6.02(5)(d), which requires the creditor to set forth the cost of such property insurance when acquired through the creditor; not Article 5069-6.04, which requires the creditor to set forth the “kind, coverage, term and amount of premium for such insurance.” The failure to complete the remaining blanks in Item 6 does not in any way indicate that the provision requiring Mannix to purchase fire insurance was to be deleted from the contract.

Since there was nothing, to indicate that the provision on the back of the contract was not to be applied to this transaction, that is, it was not struck out, it was necessary for the contract to state “the kind, coverage, term and amount of premium for such insurance.” The failure to include this information was a violation of Article 5069-6.04. See McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App. — San Antonio 1973, no writ).

DELINQUENCY

CHARGE: SIC next maintains that the following provision of its contract, that “Debtor agrees to pay a delinquency and collection charge on each installment in default for 10 days or more,” does not violate Article 5069-6.02(11). The pertinent part of Article 5069-6.02(11) states that the “holder of any retail installment contract if it so provides may collect a delinquency charge on each installment in default for a period of more than ten days . . ..” According to SIC, the contract phrase “in default for 10 days or more” is equivalent to the statutory phrase “in default for . more than ten days.” Mannix argues that under the contract provision a penalty can be assessed on the tenth day. We reject this argument. The installment must have been “in default for 10 days,” which plainly means that a delinquency charge cannot be imposed until the expiration of ten days. In order to be “in default for 10 days,” the tenth day must have passed without payment; the earliest that a delinquency charge could be imposed under this contract is on the eleventh day, as the statute requires. Thus, the trial court and the court of civil appeals erroneously held there was a violation of Article 5069-6.-02(11).

WAIVER OF

RIGHTS: Although the trial court found a violation of Article 5069-6.05, the court of civil appeals did not consider this third point of error. In pertinent part, Article 5069-6.05 provides:

“No retail installment contract or retail charge agreement shall:
“(4) Provide for a waiver of the buyer’s rights of action against the seller or holder or other person acting therefor for any illegal act committed in the collection of payments under the contract or agreement or in the repossession of goods;

Mannix argues that this Article is violated by the following provision contained on the back of the contract:

“Nothing shall prevent the Secured Party from removing [the property] from any premises to which same may be attached, upon default or breach of this Retail Installment Contract and Security Agreement or any part thereof, and the Debtor agrees to sustain the cost of repairs, if any, of any physical injury to the real estate caused by such removal.”

This provision of the contract does indeed waive the buyer’s cause of action for any tort committed in the repossession of the goods. Since “[njothing shall prevent the Secured Party from removing [the property] from any premises to which same may be attached, upon default or breach,” SIC could, for example, forcefully enter Mannix’ home. Furthermore, in this example, Man-nix would have to absorb “the cost of repairs, if any, of any physical injury” to his home as a result of such forceable entry even though the injury was a result of intentionally tortious conduct. It is well-settled that such a provision would not be enforced by the courts of Texas. First, a breach of the peace during repossession would violate Article 9.503, Texas Business and Commerce Code. Second, such unconscionable conduct would not be excused by a provision contained in a form contract resulting from unequal bargaining positions. See Exxon Corporation v. Brecheen, 526 S.W.2d 519 (Tex.1975); Crowell v. Housing Authority of City of Dallas, 495 S.W.2d 887 (Tex.1973); Western Union Tel. Co. v. Linn, 87 Tex. 7, 26 S.W. 490 (1894); Cameron Compress Co. v. Whitington, 280 S.W. 527 (Tex.Com.App.1926, jdgmt adopted); Comment, The Doctrine of Uncon-scionability, 29 Baylor L.R. 309 (1977). Thus, the Legislature must not only have intended such an unconscionable contract provision to continue to be unenforceable, but also to penalize any creditor who included such a prohibited provision in a retail installment contract. The presence of such a clause in a retail installment contract would deceive the very individuals the Legislature intended to protect; namely, “the uneducated, the unsophisticated, the poor and the elderly” into believing that their creditors could, with the law’s blessing, forcibly enter their homes at any time of the day or night and remove their goods without any concern for damages to the debtor’s real property. Accordingly, the Legislature must have intended for Article 5069-6.05 to impose a duty upon the creditor not to include such an unconscionable provision in the installment contract.

This same conclusion that the creditor has a duty to prepare a contract in accordance with the standards established by the Legislature by the Texas credit laws was reached in Mitchell Motors, Inc. v. Bell, 528 S.W.2d 856 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.). Bell involved a violation of Article 5069-7.02(2), which provided in pertinent part that the “printed portion of the [motor vehicle installment] contract . shall be in size equal to at least eight-point type.” The court reasoned:

“In view of the clear legislative intent to protect buyers by preventing abusive and deceptive practices by sellers, and to achieve this objective by regulating the conduct and activities of sellers, there can be no doubt that the legislature intended to achieve its goal by imposing duties on the persons who, in the legislative judgment, had, under the old law, been guilty of abusive and deceptive practices. Thus, there can be no doubt that the purpose of Article 7.02 was to impose duties on sellers, the persons who, in the ordinary course of business, as did defendant here, present to the buyer a document ready for the buyer’s signature. Regulation presupposes control by imposition of rules and standards to be followed, and it would be nonsensical to hold that the legislature sought to impose rules and standards to be followed by sellers without imposing a duty on the regulated persons to comply with such rules and standards. To attempt to regulate the conduct of a class of persons without imposing duties on the members of the regulated class would be an attempt to regulate by not regulating. It is obvious that, if the legislative attempt to protect the credit buyers of motor vehicles is to be regarded as anything other than an exercise in futility, the legislative pronouncements concerning the form and contents of the retail installment contract must be construed as imposing duties on the seller, since it is the conduct of the seller which the legislature sought to regulate.” 528 S.W.2d 856 at 860. . [Emphasis added.]

See Snell, Assignee Liability Under the Texas Consumer Credit Code, 8 St. Mary’s L.J. 696 (1977). The inclusion of this prohibited item in the contract which waived Mannix’ right of action for certain illegal acts which might be committed in the repossession of goods subjected SIC to the penalties provided for in Article 5069-8.01, which provides in pertinent part:

“Any person who violates this Subtitle . by failing to perform any duty specifically imposed on him by any provision of this Subtitle, shall forfeit to the obligor twice the amount of interest or time price differential . . . charged or received, and reasonable attorneys’ fees fixed by the court, provided that there shall be no penalty for a violation which results from an accidental and bona fide error.” [Emphasis added.]

DEDUCTION OF DELINQUENCY

CHARGES: Under points four and five, SIC argued the contract provisions relating to delinquency charges did not violate Article 5069-6.02(10). Having found two violations of state law, we do not need to consider these two points raised by petitioner SIC.

ACCELERATION OF UNEARNED

INTEREST: Because point of error six was considered by the court of civil appeals, we feel it appropriate to comment on this item.

The contract provides: “Should the Debtor fail to pay such indebtedness or any part thereof when due, then the entire unpaid balance shall, at the Secured Party’s option, become immediately due and payable and shall bear interest thereafter at the highest lawful rate, . . . ” Mannix alleged that by using the phrase “entire unpaid balance” this provision provided for the acceleration of the principal and of the unearned interest upon default and that such provision violated Article 5069-6.-02(10). That Article provides in pertinent part: “. . . any buyer may prepay in full the unpaid time balance thereof at any time before its final due date and, if he does so, shall receive a refund [of unearned interest] thereon for such prepayment.” The contract provision, however, does not concern a prepayment situation. Instead, the contract provision relates to a default by the buyer. Once the debt has been accelerated upon default, it is then due and owing. It is not possible for the buyer, Mannix, to prepay at that point in time. Therefore, Article 5069-6.02(10), which regulates prepayment, does not apply. Moreover, it is clear, from an examination of the contract, that the above-cited provision does not contemplate the acceleration of unearned interest. The term “unpaid balance” obviously refers to the unpaid principal; the unpaid portion of the amount which was originally financed. On the front of the contract the term “unpaid balance” was used in two places. First in the phrase “UNPAID BALANCE OF CASH PRICE,” which was $800, and second in the phrase “UNPAID BALANCE — AMOUNT FINANCED,” which was $815.48, which included the cash price and the cost of credit life insurance. Thus, the phrase “unpaid balance” does not refer to the total of payments that have not been made under the contract, but rather to the unpaid principal; the amount of the “total of payments” still outstanding, less any unearned interest. Accordingly, the contract language does not violate Article 5069-6.02(10) by accelerating unearned interest upon default.

With respect to the argument that there was an attempt by SIC to accelerate the unearned interest, the court of civil appeals apparently held the assertion by SIC of a counterclaim against Mannix, which recited “[t]here is presently due and owing by Cross-Defendant [Mannix] on such contract the sum of $499.20, exclusive of attorneys fees,” was equivalent to an acceleration of the unearned interest. At the time the counterclaim was made, the sum of $499.20 included unearned interest. It should be noted that the record in this case indicates that Mannix has never been in default. While it is clear that the court of civil appeals was correct in holding that an acceleration of unearned interest upon default in the instant case would be a violation of Article 5069-8.01, which prohibits charging usurious interest, Moore v. Sabine National Bank of Port Arthur, 527 S.W.2d 209 (Tex. Civ.App. — Austin 1975, writ ref’d n.r.e.), we need not decide whether this counterclaim asserted by SIC was indeed an attempt to accelerate unearned interest inasmuch as we have already found two violations of state law.

VIOLATIONS OF FEDERAL LAW SECURITY

INTEREST: In its seventh point of error SIC maintains it did not violate Regulation Z, Section 226.8, which provides in pertinent part as follows:

“(a) ... all of the disclosures shall be made together on either:
“(1) The note or other instrument evidencing the obligation on the same side of the page and above the place for the customer’s signature; .
“(b) ... In any transaction subject to this section, the following items, as applicable, shall be disclosed:
“(5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, . If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.” [Emphasis added.]

Therefore, under Regulation Z, Section 226.8, any security interest in after-acquired property and future indebtedness secured by the goods sold must have been disclosed in this case on the front or first page of the document. The contract contained the following provisions regarding the security interest retained by SIC:

1. [Contained on the front of the document.] “For good and valuable consideration and as security for the Total of Payments, Debtor hereby acknowledges, ratifies and confirms the existence of a security interest in the Goods described above to Secured Party, to have and to hold the same forever, upon the condition that if Debtor promptly pays or causes to be paid the aforesaid indebtedness and performs all of the terms and conditions hereof at the time and in the manner specified then, and only then, title and ownership to said Goods shall vest in the Debtor and this Contract shall be void, otherwise the security interest herein created to remain in full force.”
2. [Contained on the back of the document.] “Title and ownership of said Goods, and the security interest herein created in said goods, shall remain in the Secured Party, its successors or assigns, until all sums due or which become due or owing under any clause of this contract shall have been fully paid in cash and all duties on the part of the Debtor shall have been fully performed, and thereupon the title and ownership shall pass to the Debtor and the security interest in the said goods shall terminate. The Debtor agrees that any labor or material furnished to him shall be added to, and become a part of the purchase price hereof, and that title and ownership to the property herein shall not pass until the same is fully paid and the security interest created in the said Goods shall not be terminated until the same is fully paid.” [Emphasis added.]

This second provision, which was contained on the back of the document, creates a security interest in certain after-acquired property and uses the goods sold under this contract to secure certain future indebtedness and was clearly required to be disclosed on the front of the document under Regulation Z, Section 226.8(b)(5). Thus, the court of civil appeals correctly found a violation of this federal regulation.

Having found one violation of federal law, we decline to consider the other points of error raised by petitioner SIC relating to federal law.

The judgment of the court of civil appeals is affirmed.

BARROW, J., not sitting.

ON MOTION FOR REHEARING

In reviewing our opinion on motion for rehearing the court has determined that certain clarifications and modifications should be made in the construction of Article 5069-6.04, Texas Revised Civil Statutes Annotated. In construing paragraph (5) of Article 5069-6.04 the court held that where a retail installment contract requires insurance the agreement must specify the “kind, coverage, term and amount of premium” for each insurance coverage required. In so holding the court did not distinguish between buyer-provided and seller-procured insurance. After reconsidering Article 5069-6.04 the court is of the opinion that this limited but necessary distinction should be made.

The meaning of Article 5069-6.04(5) is ambiguous because the antecedent for the term “such insurance” is unclear. In order to properly construe paragraph (5) in accordance with legislative intent it is necessary to read the statute as a whole rather than isolated portions thereof. Calvert v. Texas Pipe Line Company, 517 S.W.2d 777 (Tex.1974). Article 5069-6.04 provides as follows:

“(1) On any retail installment contract or retail charge agreement made under the authority of this Chapter, a seller or holder may request or require a buyer to provide credit life insurance and credit health and accident insurance as additional protection for such contract or agreement and include the cost of such insurance as a separate charge in such contract or agreement. Only one policy of life insurance and one policy of health and accident insurance on any one buyer may be in force with respect to any one contract or agreement at any one time. “(2) A seller or holder may, in addition, request or require a buyer to insure property involved in such contract or agreement, made under the authority of this Chapter, and include the cost of such insurance as a separate charge in such contract or agreement. Such insurance and the premiums or charges thereon shall bear a reasonable relationship to the amount, term and conditions of the contract or agreement, the existing hazards or risk of loss, damage or destruction, and shall not provide for unusual or exceptional risks or coverages which are not ordinarily included in policies issued to the general public.
“(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the buyer a statement which shall clearly and conspicuously state that insurance is requested or required in connection with the contract, and that the buyer shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas. In addition when any requested or required insurance is sold or procured by the seller or holder at a premium or rate of charge not fixed or approved by the State Board of Insurance, the seller or holder shall include such fact in the foregoing statement, and the buyer shall have the option for a period of five days from the date of the contract or agreement of furnishing the required insurance coverage either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverage through any insurance company authorized to transact business in Texas. Such statement or statements may be made in conjunction with or as part of the retail installment contract required by Article 6.02 or the retail charge agreement required by Article 6.03, respectively. “(4) Such insurance shall be written at lawful rates and in accordance with the provisions of the Texas Insurance Code by a company authorized to do business in this State.
“(5) The contract or agreement must state the kind, coverage, term and amount of premium for such insurance.
“(6) The buyer shall have the privilege at the time of execution of the contract or agreement of purchasing such insurance from an agent or broker of his own selection and of selecting an insurance company acceptable to the seller or holder, but, in such case the inclusion of the insurance premium in the contract or agreement shall be optional with the seller or holder.
“(7) If the insurance is to be procured by the seller or holder, he shall, within forty-five days after delivery of the goods or furnishing of the services under the contract or agreement, deliver, mail, or cause to be mailed to the buyer at his address as specified in the contract or agreement, a policy, or policies, or certificates of insurance, clearly setting forth the amount of the premium, the kind or kinds of insurance, the coverages and all the terms, options, limitations, restrictions and conditions of the policy or policies of insurance.
“(8) If the insurance is cancelled, adjusted or terminated for any reason, the refund for unearned insurance premiums received by the seller or the holder shall be credited to the final maturing installments of the retail installment contract or retail charge agreement, and the remaining balance of the unearned insurance premiums shall be refunded to the buyer; provided, however, that no cash refund shall be required if the amount thereof is less than One Dollar.
“(9) Any gain, or advantage to the seller or holder, or any employee, officer, director, agent, general agent, affiliate or associate from such insurance or its provision or sale shall not be considered as an additional charge or further time price differential in connection with any contract or agreement made under this Chapter except as specifically provided herein.”

The term “such insurance” is used in paragraphs (1), (2), (4), (5), (6), and (9). No ambiguity is created by the use of the term in paragraphs (1) and (2); under normal grammatical rules of construction, the antecedent is provided internally within each paragraph and refers to the types of insurance described in that paragraph. Therefore, “such insurance” refers to credit life and/or health and accident insurance in paragraph (1) and refers to credit property insurance in paragraph (2).

The ambiguity in the statute results from the use of the phrase “such insurance” in paragraphs (4), (5), (6), and (9). None of these paragraphs provide an antecedent internally. As all of these paragraphs are part of Article 5069-6.04, it is logical to conclude that all four paragraphs have the same antecedent; therefore, the antecedent is provided somewhere within paragraphs (1), (2), or (8). Upon analysis, paragraphs (1) and (2) are the only paragraphs which describe types of insurance. Paragraph (1) specifies that credit life and/or health and accident insurance may be required in a retail charge or installment agreement and the cost may be included therein. Paragraph (2) outlines similar specifications concerning credit property insurance. On the other hand, the principal purpose of paragraph (3) is to establish the burden of disclosure placed on the seller or holder, who requires insurance in a retail charge or installment contract. The entire focus of paragraph (3) is on the contents of an insurance requirement clause in the contract. Paragraph (3) requires: that the disclosure be in clear and conspicuous language; that it provide an option allowing the buyer to obtain insurance from another source or to provide it from existing policies; and that it state that rates and premiums are not set or approved by the State Board of Insurance, if applicable. Therefore, a review of the initial three paragraphs of Article 5069-6.04 reveals that the only paragraphs which deal directly and purposefully to define insurance are paragraphs (1) and (2). Accordingly, the most appropriate and reasonable antecedent for the phrase “such insurance” is jointly provided by paragraphs (1) and (2).

Having determined that paragraphs (1) and (2) provide the antecedent for “such insurance,” the court must determine what insurance is described by these paragraphs. Paragraph (1) deals specifically with credit life and/or health and accident insurance which is required by the seller and for which a charge is included in the contract. Paragraph (2) concerns property insurance which is required by the seller and for which a charge is included in the contract. Including the cost in the contract indicates that the seller has sold the insurance policy to the buyer, that the seller is financing the insurance acquired by the buyer from other sources, or that the seller in some manner has been involved in the procurement of the insurance coverage. Therefore, both paragraphs (1) and (2) refer strictly to seller-procured insurance. This type of insurance is distinguishable from buyer-provided insurance which is available as a mandatory option under paragraph (6); whereby the buyer may provide insurance coverage from existing policies or obtain insurance from another source. Therefore, it is the opinion of the court that “such insurance” refers only to seller-procured insurance. However, this court construes the term “seller-procured insurance” to include any insurance coverage whereby the seller becomes involved in the insurance acquisition process or directly or indirectly benefits from such insurance coverage. This involvement may be accomplished by actual sales of insurance policies, referrals to insurance agencies, receipts of direct or hidden commissions, fi-nancings of insurance purchases from other sources, or by other similar devices. Only that insurance obtained totally independent of the seller and from which the seller will obtain no direct or indirect benefit from the procuring of the required insurance shall be considered “buyer-provided.”

In construing Article 5069-6.04 the court must determine if its construction is reasonable and comports with the legislative intent. McKinney v. Blankenship, 154 Tex. 632, 282 S.W.2d 691 (1955); Anderson v. Penix, 138 Tex. 596, 161 S.W.2d 455 (1942). As noted in its Declaration of Legislative Intent, the Texas Consumer Credit Code was intended to prevent abusive credit practices and deceptive trade practices. Abuse in the area of insurance requirements in credit transactions has been prevalent in at least two areas in the past: (1) the practice of charging for insurance coverage which the buyer had no notice he was buying; and (2) the practice of requiring insurance and selling it at exorbitant prices without giving the buyer the opportunity to acquire better terms. These abuses clearly arise when the insurance is procured, as broadly construed herein, by the seller; therefore, the present construction of Article 5069-6.04 would prevent the occurrence of either abuse in the future. Furthermore, the determination that “such insurance” excludes buyer-provided insurance reaches a reasonable result. Such construction avoids the impractical result of a seller having to monitor the terms, premiums, and coverage of new or existing policies purchased or owned by the buyer where such information is more readily available to the buyer than the seller.

Therefore, the statutory language, as well as the legislative intent, supports the interpretation of “such insurance” to include only life, health and accident, and/or property insurance which is seller-procured. Having determined the proper interpretation of “such insurance,” the court must now reconsider its construction of Article 5069-6.04(5) as it relates to the retail installment contract assigned to Southwestern Investment Company.

Article 5069-6.04(5) requires disclosure of the kind, coverage, term, and amount of premium of seller-procured insurance. Therefore, any time the seller becomes involved in the insurance acquisition process or directly or indirectly benefits from such insurance coverage, these paragraph (5) provisions must be included in the contract. In the instant case Southwestern Investment Company required Mannix to purchase fire insurance in section 5 of the installment contract, which reads:

“5. The Debtor agrees to insure such Goods against loss by fire in favor of the Secured Party, its successors or assigns.”

There are no marks to indicate that this provision was to be deleted; however, no separate identified charges were listed in the contract for property insurance. Therefore, from the facts and documents before this court it appears that the seller was not involved in the insurance acquisition process nor did the seller benefit directly or indirectly from the insurance coverage. Such findings support the conclusion that the property insurance was not seller-procured; therefore, compliance with Article 5069-6.-04(5) was not required.

This modification of the prior opinion of this court does not change the result. The parties stipulated that damages would be paid if there existed one violation of state law and one violation of federal law. The holding in the prior opinion is not modified with respect to the holding that Southwestern Investment Company violated Article 5069-6.05 in waiving the buyer’s cause of action for any tort committed during repossession; nor is the holding modified with respect to the finding that Southwestern Investment Company violated Section 226.8 of Regulation Z, 12 C.P.R., Section 226.1, et seq., by not disclosing the security interest in after-acquired property on the front of the credit agreement. Having found one violation of state law and one violation of federal law, the judgment of the court of civil appeals is affirmed.

The motion for rehearing is overruled.

      . Article 5069-6.01, et seq., originally enacted in 1967 and effective on January 1, 1968, was amended effective May 4, 1977. Unless indicated otherwise, the references herein to Article 5069-6.01, et. seq., pertain to the statute enacted in 1967.

      . References herein to federal laws or regulations pertain to those effective as of the date of the contract, January 23, 1974.

      . The stipulation reflects the fact that a violation of Texas credit laws results in a recovery of statutory damages of twice the finance charge [Article 5069-8.01] and a violation of the federal law results in a recovery of statutory damages of twice the finance charge with a minimum recovery of $100 and a maximum recovery of $1,000 [15 U.S.C.A. § 1640]. In this case, one violation of state law results in statutory damages of $365.84 [two times $182.92, the finance charge] and one violation of federal law results in statutory damages of $365.84, which totals $731.68.
      Article 5069-8.01, et seq., which sets forth the remedies available for a violation of Texas credit laws was amended in 1977 by the 65th Legislature, Regular Session. The amendment does not affect the damages awarded in the instant case.

      . “Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debtor’s premises under Section 9.504.” [Emphasis added.]

      . Article 5069-6.04 consistently refers to “seller or holder” in paragraphs (1), (2), (3), (6), (7), (8), and (9). This repeated utilization of the terms obviously demonstrates the intention of the Legislature to include all sellers, holders, or creditors involved in retail installment contracts or retail charge agreements. Accordingly, in this writing the words “seller” and “seller-procured” are to be understood to include “holder” and “holder-procured,” as well as “creditor” and “creditor-procured.”

      . Declaration of Legislative Intent, 15 Tex.Rev. Civ.Stats.Ann., at 1-2.

      . Texas Finance Commission, Report to the 60th Legislature on Consumer Credit Abuses in Texas, at 39-41; Davis, Does the Texas Credit Insurance Act “Legalize" Usury?, 11 Sw.L.J. 139 (1957).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Pedro DAVILA et ux., Terry McAfee et al., Petitioners, v. Clayton SANDERS et al., Respondents.
    No. B-6804.
    Supreme Court of Texas.
    Oct. 5, 1977.
    Rehearing Denied Dec. 14, 1977.
    Garner, Vickers & Purdon, John E. Vick-ers, Edwards & Associates, James R. Edwards, Lubbock, for petitioners.
    Clifford, Sims & Kidd, William A. Clifford and Richard S. Hubbert, Lubbock, for respondents.
   PER CURIAM.

The trial court’s judgment in this personal injury suit absolved co-defendant Terry McAfee of liability. The Court of Civil Appeals reversed the judgment and remanded the case for new trial because of error in instructing the jury on imminent peril. 550 S.W.2d 709. We agree that the instruction should not have been given; but we add that with comparative negligence the controlling determination, use of the doctrine or rule of imminent peril is no longer justified in any case.

Co-defendant Clayton Sanders lost control of his southbound truck. McAfee, driving his truck behind Sanders’ truck, attempted to avoid Sanders but crossed the mid-line of the highway and collided with northbound plaintiffs Davila. The trial court instructed the jury on sudden emergency and also gave the following imminent peril instruction:

A person is in a position of imminent peril when it reasonably appears to such person that he has been put in a position of danger, by the acts of another party, which calls for immediate action by such person without time for deliberation, and such appearance of danger caused such person to be so frightened as to be unable to use ordinary care for his own safety, and such appearance of danger was not proximately caused by any negligence on the part of such person. If you find that Terry David McAfee was in such a position, then all of your answers to the negligence issues inquired about concerning his conduct in this Charge should be answered in the negative.
If the negligent conduct of Terry David McAfee, if any, concurred in bringing about the position of peril, then he cannot avail himself of the Imminent Peril Doctrine.

It has been the Texas law that a plaintiff is not legally accountable for conduct, prudent or imprudent, while in a terrorized state of mind reasonably resulting from a position of peril created by the negligence of the defendant. International & G. N. By. v. Neff, 87 Tex. 303, 28 S.W. 283, 286 (1894). It has been a doctrine properly available only to a person in the legal position of a plaintiff. Del Bosque v. Heitmann Bering-Cortes Co., 474 S.W.2d 450 (Tex. 1971); Thode, Imminent Peril and Emergency in Texas, 40 Tex.L.Rev. 441 (1962). While the majority of this Court was of the opinion that the issue of last clear chance was not reached in Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627 (Tex. 1976), what was said about that issue in the concurring opinion can also be said of imminent peril: “The doctrine .- . . is a part of the law’s thrust and parry arising from the merciful desire to ameliorate the harshness of the absolute defense of contributory negligence.” 544 S.W.2d 633.

Since the advent of comparative negligence per Art. 2212a, Vernon’s Civ.Stat. Ann., this Court has sought to abolish those doctrines directed to the old choice between total victory and total defeat for the injured plaintiff and which doctrines too often confused jurors, lawyers, and judges alike. Farley v.M M Cattle Co., 529 S.W.2d 751 (Tex.1975); see concurring opinion Abalos v. Oil Development Co. of Texas, supra. The doctrine of imminent peril fits that category, and it is now discarded. What is said does not apply to the instruction on sudden emergency.

The application for writ of error is refused, no reversible error.


text:
    Donald R. PACK et ux., Petitioners, v. The CITY OF FORT WORTH, Respondent.
    No. B-6965.
    Supreme Court of Texas.
    Nov. 2, 1977.
    Charles D. Yarbrough, Bedford, for petitioners.
    S. J. Johndroe, Jr., City Atty., John F. Gray, Asst. City Atty., Fort Worth, for respondent.
   PER CURIAM.

Donald Pack brought suit against the City of Fort Worth to recover for injuries suffered in a fall during the performance of his employment with the City. The Court of Civil Appeals affirmed summary judgment for the City. 552 S.W.2d 895.

The Court of Civil Appeals affirmed the District Court’s judgment on the grounds that a written instrument signed by Pack was a valid release that absolved the City from all liability and that Pack ratified such release by accepting the benefits it provided. In addition the Court grounded affirmance upon a City Ordinance that contained this provision:

By reason of the expansion of the benefits and coverage herein and the additional burdens placed upon the City of Fort Worth and the Fund, it is expressly provided that no member of the Employees’ Retirement Fund of the City of Fort Worth shall have the right to sue said City for total disability sustained in line of duty, as heretofore defined, and by virtue of becoming a member he or she accepts the benefits provided by the Employees’ Retirement Fund of the City of Fort Worth in lieu of his or her right at law to sue the City for damages in a court of competent jurisdiction. No heir or legal representative of a member who is injured in line of duty, which injury results in death, shall have the right to sue the City of Fort Worth for damages by reason thereof, but such heir or legal representative shall accept the benefits provided under the Employees’ Retirement Fund Ordinances of the City of Fort Worth in lieu of such right to sue for damages in a court of competent jurisdiction.

The judgment of the trial court can be upheld on the first two grounds; therefore, it is not necessary to determine whether the City Ordinance violates Tex.Const. art. I, § 13, which provides in part that: “All Courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have a remedy by due process of law.”

The action of this Court is without reference to the Ordinance. Writ of error is refused, no reversible error.


author: PHILLIPS, Judge.

text:
    Joseph Louis BUSH, Appellant, v. The STATE of Texas, Appellee.
    No. 56393.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    Appellant’s Motion for Rehearing Denied Nov. 30, 1977.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at imprisonment for ten (10) years.

On January 23, 1976, a Harris County grand jury indicted appellant for the offense of aggravated robbery. On February 18,1976, appellant filed an affidavit of indi-gency, requesting that counsel be appointed to represent him at trial. On the same date, the trial court entered an order appointing attorney Charles T. Newlin to represent appellant at trial. On June 2,1976, a jury convicted appellant and assessed his punishment at imprisonment for ten (10) years. On December 22, 1976, appellant was sentenced and gave notice of appeal. On the same date, appellant executed another affidavit of indigency, requesting that he be provided with a free transcription of the court reporter’s notes. The record does not show what action, if any, the trial court took upon appellant’s request. The record does reflect that attorney New-lin was to remain counsel on appeal.

The record reflects that appellant was represented by court-appointed counsel at trial; and, absent a showing to the contrary, it must be presumed that appellant is indigent for the purposes of appeal. Foley v. State, 514 S.W.2d 449 (Tex.Cr.App.1974). Yet, the record is before us without a transcription of the court reporter’s notes. No brief was filed in the trial court in appellant’s behalf pursuant to Art. 40.09(9), Vernon’s Ann.C.C.P., and none has been filed here. Consequently, we set aside the trial court’s order approving the record, abate the appeal, and remand the cause to the trial court for further proceedings consistent with this opinion.

Upon receipt of our mandate of abatement, the trial court shall provide appellant with an adequate record on'appeal, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963); Eskridge v. Washington, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969); Mayer v. Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971); Curry v. State, 488 S.W.2d 100 (Tex.Cr.App.1972); Ex parte Mays, 510 S.W.2d 606 (Tex.Cr.App.1974); Cartwright v. State, 527 S.W.2d 535 (Tex.Cr.App.1975); Guillory v. State, 557 S.W.2d 118 (Tex.Cr.App., decided October 26, 1977), and the effective assistance of counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Lopez v. State, 486 S.W.2d 559 (Tex.Cr.App.1972); Currie v. State, 516 S.W.2d 684 (Tex.Cr.App.1974); Hawkins v. State, 515 S.W.2d 275 (Tex.Cr.App.1974); McMahon v. State, 529 S.W.2d 771 (Tex.Cr.App.1975); Guillory v. State, supra; Yates v. State, 557 S.W.2d 115 (Tex.Cr.App., decided October 26, 1977).

We set aside the trial judge’s order of July 1, 1977, which approved the record in the instant cause, and remand the case to the trial court for further proceedings. Upon the filing of the transcription of the court reporter’s notes with the clerk of the trial court, notice of completion of the record shall again be given to the parties pursuant to Art. 40.09(7), Vernon’s Ann.C.C.P. Further proceedings shall then be had in the trial court under the appropriate subdivisions of Art. 40.09, Vernon’s Ann.C.C.P.

The appeal is abated.

      . Since Attorney Newlin represents appellant for the purposes of appeal, he should carry out his obligation in seeing that the record is prepared and a brief is filed in the trial court on appellant’s behalf. See the judgment entered on September 23, 1977, in In Re Van Orden, ancillary to Ex parte Barnett, No. 55,118.


author: GREEN, Commissioner. ROBERTS, Judge,

text:
    Joe Edgar ASHABRANNER, Appellant, v. The STATE of Texas, Appellee.
    No. 53184.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.

      Kenneth G. Raggio, Austin, for appellant.
    Robert 0. Smith, Dist. Atty. and Stephen H. Capelle, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of attempt to commit murder. See V.T.C.A. Penal Code, Sec. 15.01(a). Punishment was assessed at twenty years.

Appellant challenges the sufficiency of the evidence to support the verdict.

The record reflects that at about 4:30 a. m. on August 30, 1974, Leonard McCaskill was shot and severely wounded by Joe Pruett, a co-indictee also charged with this offense. Appellant was present at the scene of the shooting. He contends that the evidence is insufficient to prove that he was criminally responsible for the conduct of Joe Pruett. See V.T.C.A. Penal Code, Secs. 7.01 and 7.02.

McCaskill, the injured party, testified substantially as follows:

In 1974, prior to his being shot, he, appellant and Bob Palamas were “sort of partners” in selling and dealing in methamphetamine, commonly known as “speed.” McCaskill also was a “speed” addict. The partnership “soured” about a week before August 30 when McCaskill told appellant that the “dope” appellant was furnishing was not methamphetamine, but was just “trash — fertilizer.” At that time McCaskill owed the partnership a sum variously estimated at between one hundred and two hundred eighty dollars. When McCaskill told him that the dope was merely trash or fertilizer, appellant stated: “Lenny, something bad is going to happen to you.”

At about 3:00 o’clock a. m. on August 30, while McCaskill was shooting pool in the Sit N’Bull restaurant in Austin, appellant entered with Joe Pruett, and in a conversation it was arranged that they would go sell some “speed” to an individual who McCas-kill knew wanted to buy some. After McCaskill phoned the person and made arrangements to meet him, he, appellant and Pruett left in the latter’s car to complete the sale. They stopped at an apartment, where McCaskill was given an injection of “speed.” There Mike Stewart joined them, and they proceeded to the place where the sale was to be made. Appellant and McCaskill left the car and saw the customer, who paid McCaskill one . hundred and eighty dollars. On going back to Pruett’s car to get the “speed,” they noticed a ear stop near them, and, fearing it contained narcotic officers, appellant and McCaskill got in the car with Pruett and Stewart, and they left without delivering the speed. They rode about a mile out of Austin, and when McCaskill asked where they were going, appellant, in the front seat with Pruett, said: “Don’t worry about it; it’s cool.” Later, Pruett stopped the car on a country road and ordered everybody out. McCaskill and Stewart got out, but Stewart got back in the car on the front seat with appellant. Pruett then ordered McCaskill to go behind the car, where Pruett shot him several times with a Magnum .44 caliber pistol. The others then left. The next morning McCaskill was found lying badly wounded near the road. He spent six weeks in the hospital as the result of being shot in the chest, abdomen, and right arm.

Mike Stewart testified that at about midnight or shortly thereafter on the night of the shooting, while he was alone in the apartment of a girl friend, appellant and Johnny Pruett came there together. After staying there for about three hours, someone went to get Leonard McCaskill. Stewart, who had been drinking beer and was a bit hazy as to details, didn’t remember who went for McCaskill or exactly what happened in the apartment after McCaskill arrived. Later, when Pruett, appellant and McCaskill left he joined them “because I didn’t have anything else to do, so I just went along.” They went to another apartment, and then “Johnny said he was going to go out to his girl friend’s house and he headed south on the freeway — Interstate 35,” with Pruett and appellant on the front seat and Stewart and McCaskill in the back. A short time later, Pruett stopped the car, saying something was wrong with it. He told Stewart and McCaskill to get out. In a written pre-trial statement placed in evidence as D-2 without objection, and used by defense counsel for cross-examination, Stewart stated that Pruett remained in the car for a few minutes with appellant and then got out. Pruett next ordered Stewart to get back in the car with appellant, who told him “just to be quiet.” As appellant watched in the rear-view mirror, Pruett had McCaskill go behind the car, where Pruett, using a .44 Magnum pistol which Stewart had seen in his hands, shot McCaskill six times. Pruett then ran to the car, entered it, drove a short distance and made a U turn, and as he drove back past the body appellant said: “If he isn’t dead, I will call him ‘sir.’ ”

Appellant did not testify, and placed no witness on the stand at the guilt stage.

The evidence reflects that appellant became angry at McCaskill when told by him that he, appellant, was selling “trash — fertilizer” instead of speed, and that appellant told McCaskill, a week before the offense, that “Lenny, something bad is going to happen to you.” On the night of the offense, according to witness Stewart, appellant and Joe Pruett came to his apartment together and after staying there several hours one of them left to get McCaskill. Complainant testified that Pruett and appellant came to the Sit N’Bull together, and after a conversation about selling speed, the three went together to Stewart’s apartment. McCaskill also testified that he told appellant, after being shown two bottles of “speed” that one of the bottles contained just trash. In riding to the scene of the shooting, appellant and Pruett occupied the front seat of the car. Stewart found that apparently nothing was wrong with the car when it was stopped. According to McCas-kill, Pruett ordered everybody in the car to get out; nevertheless appellant remained in it, and Pruett sat with him a few minutes before he got out. He had Stewart get in the front seat with appellant, who cautioned him “just to be quiet.” As Pruett was taking McCaskill behind the car to shoot him, appellant watched by looking at the rear-view mirror. After the shooting, as Pruett drove the car past the body lying on the ground, appellant stated of the ex-partner to whom he had stated a week earlier that something bad was going to happen to him, “If he isn’t dead, I will call him ‘sir.’ ”

While it is true that mere presence at the scene of an offense is not alone sufficient to support a conviction under the principles of V.T.C.A. Penal Code, Sec. 7.02(a)(2), it is a circumstance tending to prove guilt which, considered with other facts in evidence, may suffice to show that the accused was a participant. Johnson v. State, Tex.Cr.App., 537 S.W.2d 16. We con-elude that the evidence in the instant case is sufficient to support the verdict that appellant was a party to the offense criminally responsible for the attempt to murder McCaskill. See V.T.C.A. Penal Code, Sections 7.01 and 7.02(a)(2).

The ground of error is overruled.

The contention is made that the trial court reversibly erred in overruling, without a hearing, appellant’s motion for a new trial supported by the affidavit of a juror reflecting jury misconduct at the punishment stage.

The pertinent part of the affidavit of juror Miller attached to the motion for a new trial alleging jury misconduct reads:

“ . . .We then deliberated the punishment to be given the Defendant. I was originally for around a ten year or greater sentence. One of the other male jurors, who was a hard-liner for 20 years from the beginning, said, ‘If we give him a light ten year sentence, he’ll be out in 2 or 3 years.’ I then went up to fifteen years, and one of the ‘20 year-people’ talked about parole, and the fact that defendants never serve out their full term. We considered giving the Defendant 10 years and a $10,000 fine (even though I was never in favor of a fine), but after being instructed by the court that the Defendant was responsible for paying the fine, it was decided to give him 20 years instead of 10 years and a $10,000 fine.”

In Heredia v. State, Tex.Cr.App., 528 S.W.2d 847, this Court, after a thorough discussion of many cases involving the mention in the jury room of parole and length of time a convicted person might have to serve, stated:

“ . . . We adhere to those pronouncements in prior decisions that it is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole. E. g., Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. Consequently, the mere mention of this common knowledge would not constitute the receipt of other evidence, nor would a further discussion of it constitute receiving new evidence any more than discussion of any other matter of common knowledge by the jury. On the other hand, information may be given to the jury, by a juror or someone else, which would constitute receiving other evidence. Information which would constitute other evidence would include, for example, a juror relating his personal knowledge of some particular case from which the jury might then try to ‘figure out’ what the parole law is. Also, a misstatement of the law by being incorrect, would constitute other evidence, since by being false it certainly could not be classified as ‘common knowledge.’ See e. g., Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349. The receipt of such other evidence, even if nothing further be shown such as would constitute misconduct requiring a new trial under Section 8, on a proper set of facts could require reversal under Section 7.”

While it appears from the affidavit that one of the jurors expressed his opinion as to when appellant might be released, he did not profess to know the law and did not misstate the law. Neither did he relate any personal knowledge of any particular case. The mere mention of the effects of the parole law constitutes jury misconduct, and the court in its charge instructed the jury to that effect. However, the mere mention by a juror of the prospects of the defendant being released before the end of his term, under the circumstances stated in the instant affidavit, does not constitute receipt of additional evidence, and is not such misconduct as to deny a defendant a fair and impartial trial, and does not require a new trial. See Here-dia v. State, supra; Austin v. State, Tex.Cr.App., 531 S.W.2d 615; Martinez v. State, Tex.Cr.App., 533 S.W.2d 20.

The record reflects that while the jury was deliberating on punishment it sent a note to the court inquiring who would be responsible for payment of a fine. With the expressed agreement of State and defense counsel, the court responded that a fine, if any, is part of the punishment, and “is to be paid by the defendant.” It was juror Miller’s prerogative to decide whether to vote for a lower term of years plus a fine of $10,000 or for a punishment of more years without a fine. Reversible conduct is not reflected. He may not now impeach that verdict by showing the reasons for the conclusion reached. Martinez v. State, supra; Adams v. State, Tex.Cr.App., 481 S.W.2d 884.

The court did not err in overruling the motion for a new trial without hearing evidence.

Appellant next argues that the court erred in granting the State’s request for a continuance without requiring it to file a written motion. The record shows that when the case was called for trial March 17, 1975, the district attorney asked for a three weeks’ postponement to secure an out of State witness. The court then reset the case for trial on April 14. Appellant requested that the State file a written motion, and the prosecuting attorney agreed to do so. The record contains no such written motion.

The granting of a postponement of trial is within the sound discretion of the court. No abuse of such discretion is shown. The contention raised by appellant is overruled.

In his fifth ground of error, appellant complains of the court’s failure to grant him a speedy trial.

The indictment against appellant was presented December 10, 1974. Legal counsel was appointed by the court January 9, 1975 and the trial was set for January 16. It was subsequently reset for February 4, February 10, February 24, and March 17. Except for the postponement from March 17 to April 14, the date the trial commenced, the record does not reflect the reasons that the case was passed. On March 17, counsel for appellant filed a motion to set aside the indictment for failure to grant a speedy trial. There is no record of this motion having been ruled on by the court. No specific allegations of harm resulting to appellant by reason of a delay in his trial were alleged. No unavailability of witnesses or loss of testimony due to any delay is suggested. The case went to trial April 14, 1975, and verdict was returned by the jury April 15.

The “balancing test” by which is determined whether defendant’s right to a speedy trial has been denied, as set out in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, is thoroughly discussed in Swisher v. State, Tex.Cr.App., 544 S.W.2d 379, and Archie v. State, Tex.Cr. App., 511 S.W.2d 942. Applying such balancing test, we conclude that appellant was not denied his right to a speedy trial.

The judgment is affirmed.

Opinion approved by the court.

ROBERTS, Judge,

concurring.

Although I agree with the result the majority opinion reaches, I feel compelled to comment upon one aspect of the majority opinion.

The majority overrules the appellant’s contention that jury misconduct occurred at the punishment stage of the trial. In so doing, the majority concludes that the appellant “ . . . may not now impeach that verdict by showing the reasons for the conclusion reached.”

Essentially, the majority does not allow the appellant to examine the mental processes of the jurors. The majority, however, fails to recognize that their current position is inconsistent with the majority opinion in Ex Parte Green, 548 S.W.2d 914 (Tex.Cr.App.1977). In Green the defendant asserted a prior conviction for murder without malice as a bar to a subsequent prosecution for a related charge of murder with malice. The defendant contended that the jury’s verdict at his first trial, where the jury found him guilty as a principal of murder without malice, was an implied acquittal of the charge of murder with malice at the second trial since the murder occurred simultaneously with the murder which formed the basis of the prior conviction.

In Green the majority held that the defendant’s claim was unfounded, and concluded that the jury at the defendant’s first trial did not base its verdict upon a factual determination of the defendant’s malice. The majority supported its conclusion with the testimony of a juror from the first trial who testified that “ . . . the jury’s verdict was not based on a true finding of no malice, but was based upon Petitioner’s youth, his cooperation with the police, and his lack of participation in the actual killing . Ex Parte Green, supra at 918.

Thus, this Court sanctioned an inquiry into the jury’s mental processes in order to support a subsequent conviction. In the present case, the majority refuses to allow the appellant to inquire into juror Miller’s mental process in a similar effort to sustain a conviction. In Montemayor v. State, 543 S.W.2d 93, 99 (Tex.Cr.App.1976) (Dissenting Opinion of Judge Douglas on State’s Motion for Rehearing), it was stated that “[a] good rule of evidence works both ways.” Regardless of whether the rule is evidentiary or otherwise, this Court should not sanction rules of law which are used to defeat a defendant’s contentions in one instance and ignored when they might benefit a defendant in another. Rather, this Court should attempt to be consistent with its previous decisions and not ignore previous inconsistent decisions.

Moreover, adherence to the rule in Green —that an explanation of a jury’s mental process to explain a verdict is permissible— would not, in my opinion, affect the outcome of the present case.

This conclusion necessarily follows since Miller decided to vote for a twenty-year sentence only after the trial judge’s note was given to the jury. Moreover, there is no allegation that any other juror decided to change his vote. Cf. Martinez v. State, 533 S.W.2d 20 (Tex.Cr.App.1976). The appellant cannot complain of action to which he acquiesced, particularly when these are not sufficient allegations of jury misconduct.

For the above reasons, I concur only in the result reached by the majority.


author: ONION, Presiding Judge.

text:
    Fred C. VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 54842 and 54843.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.

      Gerald H. Goldstein and George Whitfield Baugh, San Antonio, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission these appeals were affirmed in a per curiam opinion which is now withdrawn. In that opinion it was noted that no briefs were filed in the trial court in behalf of the appellant as required by Article 40.09, § 9, Vernon’s Ann.C.C.P., and there being no question of indigency.

With his motions for rehearing, appellant’s counsel submitted briefs and agreed that the briefs had not been timely filed but requested the court to consider them “in the interest of justice,” the sole ground found in each brief. See Article 40.09, § 13, Vernon’s Ann.C.C.P.

Both convictions are for the sale of heroin. The appellant entered guilty pleas before the court and was assessed a punishment of twenty (20) years in each case. He now advances the ground of error that the offenses are barred by the statute of limitations. It is his claim that while there were valid indictments pending when the indictments upon which the convictions were had for the same offenses were returned this did not toll the statute of limitations as it is only invalid pending indictments that will toll the statute of limitations under the provisions of Article 12.05(c), Vernon’s Ann. C.C.P.

The offenses were alleged to have occurred on June 8 and June 9, 1971. It appears from the record that the first indictments were returned on January 26, 1972. On February 19, 1975 the second indictments were returned. Each of the second indictments, in addition to the primary offense, alleged two prior convictions for enhanced punishment. Each of the second indictments contained a fourth paragraph reading:

“And the Grand Jurors aforesaid do further present that on or about the 19th day of January, A.D., 1972, the Grand Jury for the County of Bexar, San Antonio, Texas, returned an indictment against-the said Fred C. Vasquez, charging him with the offense hereinbefore charged in this indictment and said indictment was pending in a district court of Bexar County at the time of the return of this indictment . . . .”

On March 3, 1975, the State moved in separate motions to dismiss the first indictments on the grounds they were “faulty" and that new indictments had been returned. The trial court approved both motions although they did not describe just how the indictments were “faulty.”

On April 4, 1975, the appellant filed motions to dismiss the second indictments alleging that the offenses occurred on June 8 and June 9, 1971, and that such indictments had not been returned until February 19, 1975 and that prosecution on the indictments was barred by the three year statute of limitations. On July 24, 1975, appellant filed a “Special Plea in Bar” in each case urging the same matter and alleging that while there were intervening indictments for said offenses these were “valid” indictments and had not been “determined to be invalid” by any court and that such intervening “valid” indictments did not toll the running of the applicable statute of limitations and the time of the pendency of the said indictment must be computed in the period of limitations. On July 28,1975, the motion to dismiss and the special plea were overruled. On the same date appellant entered guilty pleas to the primary count in each indictment and the State waived and abandoned the prior convictions alleged for enhancement. Punishment was assessed as heretofore noted. Appellant subsequently filed motions in arrest of judgment on the same basis as the special plea. These motions were overruled and the appellant was sentenced in each case. Notice of appeal was given in each case.

At common law there was no limitation as to the time in which offenses may be prosecuted. White v. State, 4 Tex.App. 488 (1878); 22 C.J.S. Criminal Law § 223, p. 572; 21 Am.Jur.2d, Criminal Law, § 154, p. 222. Thus in absence of a statute there is no period of limitation barring prosecution because of the lapse of time.

When enacted “[statutes of limitation are construed as being acts of grace, and as a surrendering by the sovereign of its right to prosecute or of its right to prosecute at its discretion, and they are considered as equivalent to acts of amnesty.” 22 C.J.S. Criminal Law § 223, pp. 573-574; 21 Am.Jur.2d, Criminal Law, § 154, p. 223.

The State Constitution restricts the Legislature’s enactment of limitation statutes to general laws. Texas Constitution, Article III, § 56. See also 16 Tex.Jur.2d, Criminal Law, § 109, p. 248. The Texas statutes of limitation pertaining to criminal prosecutions are found in Chapter 12 of the Code of Criminal Procedure. At the time of the alleged offenses and at the time the first indictments in the instant cases were returned, there was no statute of limitations particularly pertaining to the offense of sale of heroin; therefore, the applicable statute was Article 12.04, Vernon’s Ann.C. C.P., 1965, which read:

“An indictment for any other felony may be presented within three years from the commission of the offense, and not afterward; except murder, for which an indictment may be presented at any time.”

Chapter 12 of the 1965 Code of Criminal Procedure consisting of Articles 12.01 to 12.09 was amended by Acts 1973, 63rd Leg., p. 975, ch. 399, § 2(B), effective January 1, 1974, to consist of Articles 12.01 to 12.07.

New Article 12.01 maintained the three year statute of limitations for all other felonies not specifically enumerated, which would include the sale of heroin.

At the time of the alleged offense and time of the return of the first indictments Article 12.07, Vernon’s Ann.C.C.P. (Absence from State and time of pendency of indictment, etc., not computed) was in effect. By virtue of 1973 amendments, Article 12.07, supra, became Article 12.05 unchanged except that the sections are enumerated as “(a), (b) and (c)” rather than by numerals.

Article 12.05 reads:

“(a) The time during which the accused is absent from the state shall not be computed in the period of limitation.
“(b) The time during the pendency of the indictment, information, or complaint shall not be computed in the period of limitation.
“(c) The term ‘during the pendency,’ as used herein, means that period of time beginning with the day the indictment, information, or complaint is filed in a court of competent jurisdiction, and ending with the day such accusation is, by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason.”

It is appellant’s contention that by virtue of Article 12.05(c) defining “during the pendency” only an invalid indictment will toll the statute of limitations. He calls attention to the first indictments found in the record and observes that the indictments were not only for the same offenses for which he was subsequently convicted upon the second indictments but that the first indictments are word for word like the primary offenses in the second indictments except that they were returned into different courts in different years. Appellant contends the first indictments were valid indictments despite the fact the State had them dismissed for being “faulty.” There can be no question that the first indictments and the allegations as to the primary offenses in the second indictments are alike and are all valid indictments.

Only recently in Ex parte Slavin, 554 S.W.2d 691 (Tex.Cr.App.1977), this court held that an invalid indictment would toll the running of the statute of limitations. See and cf. Hill v. State, 146 Tex.Cr. 333, 171 S.W.2d 880 (1943), cert. den. 320 U.S. 806, 64 S.Ct. 72, 88 L.Ed. 487.

However, the question here presented of whether a valid indictment fails to toll the running of the statute of limitations in light of the language used in Article 12.-05(c), Vernon’s Ann.C.C.P., appears to be a question of first impression.

“Ordinarily, under the various statutes, the finding of an indictment or the filing of an information is a sufficient commencement of a prosecution to prevent the running of the statute of limitations . .” 22 C.J.S. Criminal Law § 234, p. 607; Barrera v. State, 163 Tex.Cr. 132, 289 S.W.2d 285 (1956).

As stated in 21 Am.Jur.2d, § 161, pp. 228-229:

“Under statutes which merely require an indictment or information to be found or filed within a specified time after the commission of an offense, the finding of an indictment and its return by the grand jury or the filing of an information within the specified time prevent a bar of the prosecution, without regard to the time of trial, and though the cause may be continued from time to time indefinitely.”

In Carr v. State, 36 Tex.Cr. 390, 37 S.W. 426 (1896), it was held that if an indictment or information has not been filed within the time specified in the statute of limitations, the statute operates as a bar; however, if the indictment or information has once been presented within the time set by the statute of limitations, the cause may be continued from time to time indefinitely. In Carr there was question as to the validity of the indictment.

In Brown v. State, 57 Tex.Cr. 570, 124 S.W. 101 (1909), it was held that where the prosecution was not barred when an original indictment which had been lost, as returned, a prosecution under a substitute indictment will not be barred, although substituted when prosecution would be barred under a new indictment.

It is clear from our statutory scheme for limitation of criminal prosecutions that the State must present indictments or file informations and complaints within certain specified time periods “and not afterward.” If such action takes place within the time periods prescribed, then this portion of the law has been satisfied and the statute of limitations will be tolled or interrupted as to any valid indictment, information or complaint.

What if the indictment, information or complaint is presented or filed within the limitation period but is later discovered to be invalid? Does such invalid instrument toll the running of the statutes of limitation?

Redfield v. State, 24 Tex. 133 (1859), was decided when the Supreme Court of Texas still had criminal jurisdiction and it held that a defective indictment will not toll the running of the statute of limitations and that second indictment for the same offense returned after the reversal of the conviction based on the defective indictment would be barred by the statute of limitations.

“Generally, the return of an indictment or the filing of an information on which no valid conviction or judgment can be had will not, in the absence of a statute expressly so providing, operate to stop the running of the statute of limitations pending the return or filing of another indictment or information.” 21 Am. Jur.2d, § 163, pp. 229-230. (Emphasis supplied.)

The same rule is also described in 22 C.J.S. Criminal Law § 237, p. 611:

“According to some authority, at least where the statute provides that an indictment must be found within a particular time, in the absence of a statute saving such right to the state, the running of the statute of limitations will not be interrupted or suspended by the return and pendency of an indictment upon which no valid conviction or judgment can be found. Where, however, the limitations statute simply provides that prosecutions must be begun within a certain time, when a case is recommitted to the grand jury and a new and valid indictment is returned, there is no break or intermission of time in the prosecution of accused, and, if the first indictment was found within the statutory period, the case is not barred by the statute of limitations.” (Emphasis supplied.)

It is obvious that it was because there was no statute providing that an invalid indictment would suspend or interrupt the running of the statutes of limitation that the amendment was added to Article 183, Vernon’s Ann.C.C.P., 1925, in 1941, which provided that the time during the pendency of an indictment, information or complaint shall be computed in the period of limitation and defined “during the pendency.” See footnote # 4. Such amendment is now Article 12.05(e), upon which appellant relies.

Although the Legislature passed such amendment so that invalid indictments would toll the running of the statute of limitations during their pendency, this did not mean, as appellant argues, that valid pending indictments do not toll the running of the statute of limitations. To so hold would be to reach an absurd result which surely the Legislature did not intend. To hold as appellant contends would mean that the prosecution of all pending valid indictments would be barred by the statute of limitations if the eases are not tried within the limitation period even if the delay is the fault of the defendant, his illness or his granted motions for continuance. This has never been the law and should not now be the law. It must be remembered that statutes of limitation are not to be confused with a speedy trial enactment.

The statutes of limitation in Texas and authorities decided thereunder make clear that the return of a valid indictment will toll the running of the limitation period. The provisions of Article 12.05(b) and (c), Vernon’s Ann.C.C.P., were designed to overcome the rule that invalid indictments will not toll the running of the statutes of limitation in the absence of a statute so providing.

While the long delay without trial in the instant cases between the return of the first indictments and the return of the second indictments is not explained by this record, and while the facts of these cases are not exactly like any other we have found, we conclude the first indictments, be they “faulty” or valid, did toll the running of the statute of limitations in each case. Prosecution on the second indictments were not barred.

Appellant’s contention is overruled.

We observe that judgments in both cases refer to the conviction as “Repeater.” This is incorrect and is obviously a clerical error. The judgments are reformed to eliminate any reference to “Repeater.”

As reformed, the judgments are affirmed.

      . The original indictments are in the record and bear a file mark of January 26, 1972.

      . It is here observed that statutes of limitation being measures of public policy only are entirely subject to the will of the Legislature, and may be changed or repealed without violating constitutional prohibitions against ex post fac-to laws in any case where a right to acquittal has not been absolutely acquired by the completion of the period of limitations. HUI v. State, 146 Tex.Cr. 333, 171 S.W.2d 880 (1943).

      . Article 12.01, Vernon’s Ann.C.C.P., was again amended in 1975 (Acts 1975, 64th Leg., p. 478, ch. 203, § 5, effective Sept. 1, 1975), but such amendment is not here pertinent.

      . It appears that the definition of the term “during the pendency” was first added to Article 183, Vernon’s Ann.C.C.P., 1925, by Acts 1941, 47th Leg., p. 1335, ch. 603, § 1. Said Article 183 was the forerunner of Article 12.07, Vernon’s Ann.C.C.P., 1965, and present Article 12.05, Vernon’s Ann.C.C.P., and the contents of the statute have remained the same since 1941.

      . The burden of proof is always upon the State to show that the offense alleged was committed prior to the presentment or return of the indictment and within the period of limitation regardless of the date alleged. See, e. g., Faulwell v. State, 447 S.W.2d 940 (Tex.Cr.App.1969). If the indictment on its face would show the offense is barred by limitations, then factors tolling the statute of limitations must be alleged and proved by the State. Cooper v. State, 527 S.W.2d 563 (Tex.Cr.App.1975).

      . A charging instrument filed after the period of limitations has expired is without the authority of the law. Ex parte Hoard, 63 Tex.Cr. 519, 140 S.W. 449 (1911); Norman v. State, 91 Tex.Cr. 486, 239 S.W. 976 (1922); Ex parte Black, 72 Tex.Cr. 442, 113 S.W. 534 (1908); Dinklage v. State, 135 Tex.Cr. 10, 117 S.W.2d 111 (1938).

      . It is interesting to note that § 3 of the Acts 1941, 47th Leg., p. 1335, ch. 603, amending said Article 183 reads:
      “The fact that many indictments, informa-tions, and complaints are now being held invalid because of procedural errors and defects in form that have nothing to do with the guilt or innocence of the persons charged, and persons guilty of capital, as well as other crimes, are going unpunished and will continue to do so under our present laws, creates an emergency and an imperative public necessity requiring that the Constitutional Rule providing that bills be read on three separate days be suspended, and also that the Constitutional Rule which provides that laws shall not become effective until the expiration of ninety days after the adjournment of the session be suspended, and such Rules are hereby suspended, and this Act shall be in full force and effect from and after its passage, and it is so enacted.”

      . A statute with respect to the speedy trial of an accused in a criminal case does not supersede a statute of limitations within a specified time. 22 C.J.S. Criminal Law § 224, p. 575; People v. Di Franco, 17 Misc.2d 177, 184 N.Y. S.2d 974.


text:
    David Eugene WALKER, Appellant, v. The STATE of Texas, Appellee.
    No. 56126.
    Court of Criminal Appeals of Texas.
    Nov. 16, 1977.
    John F. Simmons, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler and Bob Hinton, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for burglary with intent to commit theft, as denounced by the former Penal Code. The punishment is imprisonment for eleven (11) years.

On July 21, 1976, appellant waived his right to trial by jury and entered a plea of guilty before the court to the indictment. The court admonished appellant of the consequences of his plea and heard the evidence submitted. At the conclusion of the evidence the trial court entered an order deferring further proceedings and placing appellant on probation for a period of eight years under certain terms and conditions. That order recites that the court was of “the opinion that the evidence submitted substantiates the defendant’s guilt, and the Court being of the opinion that the best interests of society and the defendant will be served by deferring further proceedings without entering an adjudication of guilt; . ” This order was entered pursuant to the authority of Art. 42.12, See. 3d(a), Vernon’s Ann.C.C.P., which provides:

“When in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation on reasonable terms and conditions as the court may require and for a period as the court may prescribe not to exceed 10 years. However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the court shall proceed to final adjudication as in all other cases.”

On December 3, 1976, the State filed its amended motion to proceed with an adjudication of guilt. That motion alleged that, during the period of probation, appellant had violated two of the probationary conditions. The motion came on for hearing on January 18, 1977. At that time appellant entered a plea of “true” to the State’s motion and judicially confessed the correctness of its allegation. At the conclusion of the hearing, the trial court set aside its prior order deferring an adjudication of guilt and placing appellant on probation. A judgment of conviction was then entered which recites, in pertinent part:

“IT IS THEREFORE CONSIDERED AND ADJUDGED BY THE COURT, that the said Defendant is guilty of the felony offense of BURGLARY, AS CHARGED IN THE INDICTMENT, and that the said Defendant committed said offense on the 14th day of December, 1973, and that he be punished by confinement in the Texas Department of Corrections for 11 Years, and that the State of Texas do have and recover of the said defendant all costs in this prosecution expended, for which execution will issue; and that said defendant be remanded to the Sheriff of Dallas County, Texas, to await' the further order of the Court herein.”

Appellant was sentenced the same date, the record reflecting that appellant waived the time in which to file a motion for new trial and motion in arrest of judgment, and notice of appeal was given.

In his sole ground of error appellant contends that the trial court erred in assessing punishment at imprisonment for 11 years in the Department of Corrections after withdrawing its previous order deferring an adjudication of guilt and revoking appellant’s eight-year probation. He contends that this action of the trial court violated the decision of the Supreme Court of the United States in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In Pearce the Court held that due process is violated when a heavier sentence is imposed upon a reconvicted defendant who has successfully challenged his first conviction either by appeal or collateral attack, unless it affirmatively appears from the record that the increased sentence is based on “identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” 397 U.S. at 726, 89 S.Ct. at 2072. Pearce is inapplicable to the present case. On January 21, 1976, appellant neither was found guilty of the offense of burglary as alleged in the indictment nor was a punishment assessed for that offense. The court did find that the evidence substantiated appellant’s guilt for that offense and placed him on probation for an eight-year term. It was not until January 18, 1977, when the trial court revoked appellant’s probation, that he found appellant guilty of the offense alleged in the indictment and assessed a punishment for the commission of that offense. Unlike Pearce, appellant never received a re-trial of the charge contained in the indictment, for it was not until January 18 that he was convicted of the offense charged.

Moreover, even if we accept appellant’s argument that “the principle is the same” as in Pearce, we note that, since appellant was originally placed on eight years’ probation, appellant committed two aggravated robberies. Appellant judicially confessed to both of these first degree felonies. Consequently, it affirmatively appears from the record that there is “identifiable conduct on the part of the defendant occurring after the time” appellant was originally placed on eight years’ probation, justifying the increased punishment imposed, not warranted. Reversal is

The judgment is affirmed.

      . The proceedings of January 18th were pursuant to Art. 42.12, Sec. 3d(b), which provides:
      “(b) On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 8 of this Article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant’s appeal continue as if the adjudication of guilt had not been deferred.”