author: PHILLIPS, Judge. VOLLERS, Judge,

text:
    Ex parte Donald Gene MONTGOMERY.
    No. 56718.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.

      Before PHILLIPS, ROBERTS and VOL-LERS, JJ.
   OPINION

PHILLIPS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner is challenging the validity of a conviction in Travis County Cause number 49,807, wherein he was convicted on his plea of guilty to the court of the offense of aggravated assault, with a prior conviction alleged for enhancement under V.T.C.A., Penal Code, Sec. 12.42(a). Petitioner was sentenced to serve a sixteen (16) year term of confinement in this case on November 12, 1975. No appeal was perfected in this cause.

Petitioner filed an application for writ of habeas corpus in the trial court, alleging that the above-mentioned sentence was excessive, since the prior conviction alleged for enhancement was barred for use as an enhancement paragraph because this same prior conviction had been used for enhancement in a prior case under V.T.C.A., Penal Code, Sec. 12.42(d), the habitual criminal act. The trial court recommended that the application for writ of habeas corpus be denied, without entering findings of fact and conclusions of law.

The records before this Court reflect that on November 10, 1975, petitioner was convicted, on his plea of not guilty to a jury, in Travis County Cause number 49,806, of the offense of aggravated assault with a deadly weapon. At a punishment hearing before the court, two prior convictions were proved for enhancement purposes under Sec. 12.-42(d), supra. Petitioner was subsequently sentenced to a life term of imprisonment and that conviction is presently pending appeal to this Court.

The record supports petitioner’s contention that a 1969 burglary conviction from Williamson County in Cause number 13,598 was twice used for enhancement purposes, initially for enhancing petitioner’s punishment as an habitual criminal in Travis County Cause number 49,806, and then subsequently enhancing petitioner’s punishment as a second offender in Travis County Cause number 49,807.

The law is clear that in prosecutions under Sec. 12.42 the same prior conviction cannot be used to enhance a defendant’s punishment to life as an habitual criminal in two separate cases. See Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App. 1977); Gooden v. State, 140 Tex.Cr.R. 347, 145 S.W.2d 177 (1940); and Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179 (1940). It is the general rule that a prior conviction cannot be used twice for enhancement purposes in any two cases. See Shaw v. State, 530 S.W.2d 838 (Tex.Cr.App. 1976); Ex parte White, 538 S.W.2d 417 (Tex.Cr.App.1976); Rollins v. State, 542 S.W.2d 163 (Tex.Cr.App.1976); Miller v. State, 139 Tex.Cr.R. 406, 140 S.W.2d 859 (1940); Cothran v. State, 139 Tex.Cr.R. 339, 140 S.W.2d 860 (1940); Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904). This general rule is subject to the exception that the use of a prior conviction to enhance the punishment as a second offender does not preclude the State from again using that conviction to affix the status of a habitual criminal. See Ex parte White, supra; Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947); Mayo v. State, 166 Tex. Cr.R. 470, 314 S.W.2d 834 (1957); Head v. State, 419 S.W.2d 375 (Tex.Cr.App.1967); Cleveland v. State, 493 S.W.2d 145 (Tex.Cr.App. 1973).

A review of all the above-mentioned cases indicates that if a prior conviction is used successfully, it cannot be used for enhancement again, unless the State uses it for the purposes of showing appellant to be a habitual criminal for the first time. If, on the other hand, the prior prosecution was not successfully enhanced, then the pri- or conviction may be used in a new prosecution. See Florez v. State, 479 S.W.2d 683 (Tex.Cr.App.1972); Benedict v. State, 172 Tex.Cr.R. 570, 361 S.W.2d 373 (1962); Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946); Cleveland v. State, supra, and cases cited therein.

In the case at bar, at the time of petitioner’s conviction in Cause number 49,-807, the prior conviction had been used successfully for the enhancement of petitioner’s sentence as a habitual criminal. As the dissent accurately notes, this particular fact situation has not been addressed by the Court before. However, we differ on how to “intelligently pass upon the question before us.” The rules concerning the use of prior convictions for purposes of enhancement, under the case law of this State, demonstrate an attitude or philosophy that a prior conviction can only be utilized twice in a graduated situation. That is to say, if it is once used to enhance a felony offender to the status of a second offender, it can be used again for purposes of enhancement to a habitual offender. It is noted that this graduated approach results in increasing potential punishments. The question then becomes: Should the State be permitted to use a prior conviction for enhancement under V.T.C.A., Penal Code, Sec. 12.42(a) after the State has successfully invoked the same prior conviction as part of its effort to enhance the petitioner’s sentence under V.T.C.A., Penal Code, Sec. 12.42(d)? We think more is involved in our conclusion that the State cannot take such action than elevating form over substance. Once a pri- or conviction is utilized to obtain the maximum automatic sentence available under our Penal Code, it should be put to rest. If the State desires to maximize its use of an accused’s prior felony convictions, it should schedule its prosecutions in accordance with the established rules of law. Since we find no authority for the proposition that the State should be allowed to violate the general rule by prosecuting as a habitual criminal first and then subsequently prosecuting as a second offender and we conclude that the fair utilization of the enhancement provisions of our current Penal Code dictate against such a procedure, we hold that the State is estopped from using a prior conviction for enhancement again in another case where it has previously used it for enhancement under the habitual criminal provisions of the Penal Code. V.T.C.A., Penal Code, Sec. 12.42(d).

For the reasons stated we hold that petitioner’s 16-year sentence in Cause number 49,807 is excessive; however, since the conviction resulted from a plea of guilty to the court, with the court assessing punishment, then the appropriate remedy would be to remand this case back to the trial court for assessment of punishment within the range of a third degree felony. See Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App. 1976).

It is so ordered.

VOLLERS, Judge,

dissenting.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner challenges the validity of a November 12, 1975 conviction in Travis County Cause number 49,807, wherein he was convicted on his plea of guilty to the court of the offense of aggravated assault, with a prior Williamson County burglary conviction alleged for enhancement under V.T.C.A., Penal Code, Sec. 12.42(a). Punishment, enhanced under Sec. 12.42(a), supra, was assessed at sixteen years. No appeal was perfected in this cause.

Petitioner filed an application for writ of habeas corpus in the trial court, contending the court was barred from using appellant’s prior burglary conviction to enhance petitioner’s punishment as a second offender under Sec. 12.42(a), supra, because the same prior burglary conviction had been used previously in Travis County Cause No. 49,-806 to fix petitioner’s status as an habitual criminal under V.T.C.A., Penal Code, Sec. 12.42(d). The trial court recommended that the application for writ of habeas corpus be denied, without entering findings of fact and conclusions of law.

The records before this Court reflect that on November 10, 1975, petitioner was convicted, on his plea of not guilty to a jury, in Travis County Cause number 49,806, of the offense of aggravated assault with a deadly weapon. Petitioner requested that the court assess punishment. On November 12, 1975, a punishment hearing was conducted before the court and petitioner’s two prior convictions were proved for enhancement purposes under Sec. 12.42(d), supra. Petitioner was subsequently sentenced to a life term of imprisonment and that conviction is presently pending appeal to this Court.

The record supports petitioner’s contention that a 1969 burglary conviction from Williamson County in Cause number 13,598 was twice used for enhancement purposes, initially for enhancing petitioner’s punishment as an habitual criminal in Travis County Cause number 49,806, and on the same day, enhancing petitioner’s punishment as a second offender in Travis County Cause number 49,807. The order of these convictions is not shown by the record, but it is not controlling.

It is well settled in Texas that a prior conviction may be used twice for enhancement purposes if the first use is under subsection (a), (b) or (c) of Sec. 12.42, V.T. C.A., P.C. and the second is under subsection (d) of that section. Ex parte White, 538 S.W.2d 417 (Tex.Cr.App. 1976); Carvajal v. State, 529 S.W.2d 517; Ex parte Calloway, 151 Tex.Cr.R. 90, 205 S.W.2d 583 (1947). This is an exception to the general rule that prior convictions may be successfully used for enhancement but one time. Kinney v. State, 45 Tex.Cr.R. 500, 79 S.W. 570 (1904); Ex parte Friday, 545 S.W.2d 182 (Tex.Cr.App.1977). The issue presented by the facts of the instant case is whether a prior conviction may be made to do such double duty where the order of use is reversed: the first use being to enhance to habitual status and the subsequent use being to enhance as a repeat offender under subsection (a) of Sec. 12.42.

Apparently, this particular fact situation has never before been presented to this Court. Petitioner cites no case which is directly in point and our research has disclosed no case which is dispositive of the issue presented. It therefore becomes necessary to examine into the rationale for the general rule and its exception in order to intelligently pass upon the question before us.

The general rule was laid down some 74 years ago in the case of Kinney v. State, supra. The reasoning advanced in support of the proposition was, first, the absence of any statutory authority allowing such double use, and, second, that such use would violate the principle of double jeopardy. This reasoning has been extensively criticized in a number of cases. However, the rule has continued in force for three quarters of a century with little change. It appears that the only remaining rationale for the rule with any validity is that the enhancement provisions of the penal code have been reenacted by the legislature with a knowledge of the judicial construction given them in Kinney and its progeny and therefore that body must have been satisfied with that rule of law. Carvajal v. State supra; Brown v. State, supra.

The exception to the general rule was first espoused in Ex parte Calloway, supra. This Court at that time also was confronted with a fact situation which had not previously arisen. The underlying rationale for the establishment of the exception was two-pronged. First, it was noted that the two enhancement provisions in question were entirely separate and distinct, dealing with separate and distinct punishments. Then it was noted that if a prior conviction could never be used for enhancement to habitual status under Art. 63 V.A.P.C. after having been used under Art. 62 that Art. 63 would become largely a nullity, because in any case where the defendant had committed three crimes and the first had been used under Art. 62 to enhance punishment in the second, there would not be available two prior convictions to use for enhancement under Art. 63, the first having already been “used up.” Ex parte Calloway, supra. See also, Brown v. State, supra; Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957).

Although significant changes were made in the enhancement provisions in the new penal code this exception has been carried forward and it has been suggested that all of the previous rules governing double use of priors for enhancement will be the same under the new code. Carvajal v. State, supra; Sec. 12.42, V.A.P.C., Practice Commentary.

The exception laid down in Calloway covers the facts presented here. The underlying rationale is the same. Here, as in Calloway, we are dealing with two enhancement provisions (12.42(a) and (d)) which are entirely separate and distinct. In fact, the articles construed in Calloway were the direct predecessors of the subsections involved here. See Ex parte Calloway, supra; Sec. 12.42, V.A.P.C. and Practice Commentary. In addition, here, as in Calloway, application of the general rule would yield an illogical result. That result would be to nullify the use of Sec. 12.42(a) in a case where its application would have been undeniably proper if the timing had been only slightly different. To illustrate: petitioner was sentenced in causes 49,806 and 49,807 on the same day, apparently within minutes of one another. In 49,806 he was assessed a life sentence based on the enhancement provisions of Sec. 12.42(d). In 49,807 he was assessed a sixteen year term based on the enhancement provisions of Sec. 12.42(a). Can it be denied that if the trial court had chosen to assess punishment in cause 49,807 prior to assessing punishment in cause 49,-806 its action would have been entirely justified as falling within the exception to the general rule, laid down in Calloway? I think it cannot. Are we then to exalt form over substance and nullify the trial court’s action even though the exact same result could have been achieved with a reverse order in assessing punishment? This we should decline to do. I dissent.

      . See e. g., Mayo v. State, 166 Tex.Cr.R. 470, 314 S.W.2d 834 (1957); Ex parte Calloway, supra; Brown v. State, 150 Tex.Cr.R. 386, 196 S.W.2d 819 (1946) (Opinion on Motion for Rehearing, Beauchamp, J.). This Court has rejected the notion that enhancement of punishment in any way involves double jeopardy. Passmore v. State, 544 S.W.2d 399 (Tex.Cr. App. 1977) (dealing with Sec. 12.42, V.T.C.A., P.C.); Schultz v. State, 510 S.W.2d 940 (Tex. Cr.App. 1974) (dealing with Art. 63, old penal code).

      . Compare: Sec. 12.42, subsections (a)-(d) with Art. 61-65 V.A.P.C., 1925.


source: Caselaw Access Project

author: VOLLERS, Judge.

license: Public Domain

text:
    Ex parte Tom Henry MATHIS.
    No. 57073.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 27, 1978.

      Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

VOLLERS, Judge.

This is a post conviction habeas corpus proceeding brought under Article 11.07, V.A.C.C.P.

The petitioner was convicted upon his plea of guilty of the offense of credit card abuse. Two prior felonies had been alleged by the State for enhancement purposes but before the trial the State moved to dismiss the third paragraph, and petitioner, upon his plea of guilty, was sentenced to confinement for twenty years. Petitioner thereafter waived his right to appeal.

Petitioner now alleges that the indictment which underlies his conviction is fundamentally defective for failure of the alleged primary offense to contain necessary elements to establish an offense under Sec. 32.31(b)(1)(A) V.A.P.C.

The indictment before us reads, in relevant part:

“[Defendant] ... did unlawfully, then and there present to Charles Epley, an A&A Credit Card Number 28576, with intent to obtain property and service, without the effective consent of the cardholder, R. Saba, . . . .”

The application for habeas corpus now before us was filed in the 194th Judicial District Court of Dallas County. No hearing having been deemed necessary, the trial court entered findings of fact and conclusions of law, recommending that the writ be granted. We agree.

A complaint as to the sufficiency of an indictment may be urged for the first time after trial where the indictment utterly fails to allege that an offense was committed by the defendant. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). If an element of the offense is omitted then the indictment fails to allege an offense. We find on examination of the indictment before us that it does fail to charge the offense of credit card abuse under Section 32.31(b)(1)(A) V.A.P.C.

The constituent elements of the offense of credit card abuse under said section are:

(1) a person
(2) with intent to fraudulently obtain property or service
(3) presents or uses a credit card
(4) with knowledge that the card was not issued to him and
(5) with knowledge that it is not used with the effective consent of the cardholder.

A comparison of the allegations of the indictment with these elements reveals that the indictment is insufficient in two regards. First of all, it fails to allege that the appellant had the intent to obtain the property fraudulently (under element number 2) and it fails to allege that he acted with knowledge that the credit card had not been issued to him or that it was not used with the effective consent of the cardholder. From this comparison it becomes apparent that the indictment omits elements of the offense and is fundamentally defective. Walters v. State, 566 S.W.2d 622 (Tex.Cr.App.1978).

The petitioner’s application for writ of habeas corpus is granted and the prosecution under this indictment is dismissed. It is so ordered.


author: W. C. DAVIS, Judge.

text:
    Jack Michael WIERSING, Appellant, v. The STATE of Texas, Appellee.
    No. 57154.
    Court of Criminal Appeals of Texas, Panel 1.
    Sept. 27, 1978.

      Philip S. Greene, Dan B. Gerson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., J. Richard Trevathan and Gerald R. Flatten, Asst. Dist. Attys., Houston, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from an order revoking probation. On May 21, 1976, appellant entered a plea of guilty before the trial court to the offense of possession of heroin. The punishment was assessed by the court at six (6) years in the Texas Department of Corrections. Imposition of sentence was suspended and appellant was placed on probation.

Among the conditions of his probation, appellant was to:

“(a) Commit no offense against the laws of this or any other State or the United States .

On January 27, 1977, the State filed a motion to revoke appellant’s probation, alleging that he had committed the offense of possession of marihuana.

On April 22, 1977 a hearing was held on the motion to revoke, after which the trial court entered an order revoking appellant’s probation on the ground that he had unlawfully possessed marihuana.

Appellant now contends that the trial court abused its discretion in revoking his probation because the evidence was insufficient to prove that appellant knowingly possessed the marihuana.

The record reflects that on December 27, 1976, Officer Morrison of the Houston Police Department and his partner stopped an automobile in which appellant was riding. The reason for the traffic stop was that the automobile had an excessively loud muffler. Upon pulling over, the driver got out of the car and walked back to the police car parked behind him. While the second officer was talking to the driver, Officer Morrison approached the parked car. He stated that he did so in order to check the identification of the passengers to determine if they had any outstanding traffic warrants. When he reached the car, a woman was sitting in the front seat on the right side and appellant and Carla Carr were sitting close together on the right side of the car in the back seat. Officer Morrison stated that as he leaned his head into the car he smelled a faint odor of marihuana. He stated that it smelled like someone had smoked marihuana in the car not recently, but on a previous occasion, but that he could not say whether it was smoked a day or a week earlier. He asked the passengers to get out of the car and then proceeded to search appellant and the women’s purses. No marihuana was found in their possession, nor did Morrison smell any marihuana on appellant’s clothes. However, he stated that as appellant got out of the car Morrison saw about one inch of plastic on the floor sticking out from under the seat in the back.

On this basis, Morrison decided to search the automobile. Upon reaching down and picking up the plastic, he discovered that it contained what was later identified as marihuana. He then proceeded to search the rest of the car, and found no more marihuana in any part of the vehicle.

Carla Carr testified that the marihuana belonged to her. She testified that she was sitting next to appellant on the right hand side of the car when it was stopped. She then stated that she was carrying the marihuana in her purse and that when the car was stopped by the police she became afraid and removed the baggie from her purse and stuffed it under the seat on the right side of the car. Carr further testified that appellant had no knowledge of the marihuana before she removed it from her purse and hid it. At the conclusion of the testimony, the trial judge stated that he did not believe any of her testimony.

Appellant testified that the marihuana did not belong to him, but rather that his first knowledge of the marihuana came when Carr removed it from her purse and placed it under the seat in front of them. He also testified that he and Carr had only been riding in the automobile for a short time, and that the driver was taking him to get his own car fixed since it had broken that morning.

No other evidence was presented regarding the circumstances of the arrest and search.

In order to establish unlawful possession of a controlled substance, the State must prove that the defendant exercised care, control and management over the contraband and that the defendant knew that the matter possessed was contraband. Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Duff v. State, 546 S.W.2d 283 (Tex.Cr.App.1977); Hernandez v. State, 538 S.W.2d 127 (Tex.Cr.App.1976). Possession of marihuana need not be exclusive, and evidence which shows that the defendant jointly possessed it with another is sufficient. Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976). The mere presence of the defendant at a place where the substance is possessed does not, in itself, justify a finding of his joint possession. Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Woods v. State, supra.

Where the accused is not in exclusive control of the place where the substance is found, it cannot be concluded that he had knowledge of the contraband and control of it unless there are additional independent facts and circumstances which affirmatively link the defendant to the contraband. Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra; Barnes v. State, 504 S.W.2d 450 (Tex.Cr.App.1974); Hausman v. State, 480 S.W.2d 721 (Tex.Cr.App.1972). This affirmative link is established by showing additional facts and circumstances which indicate the defendant’s knowledge and control. Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra.

A revocation of probation must be supported by a preponderance of the evidence. Scamardo v. State, 517 S.W.2d 293 (Tex.Cr.App.1974); Kelly v. State, 483 S.W.2d 467 (Tex.Cr.App.1972). Regardless of the burden of proof, in a case such as the one before us, the defendant must be affirmatively linked to the contraband in a fashion which supports a reasonable inference that he knew he was in possession of the contraband. See Harrison v. State, supra; Duff v. State, supra; Hernandez v. State, supra.

Therefore, it is necessary to examine the record before this Court in order to find an affirmative link between appellant and the contraband. The record reflects that appellant did not own the car nor was he in exclusive possession of the car in which the marihuana was found. Neither was he the driver of the car. There is no evidence that appellant made any furtive gesture when the officer approached the car, or that appellant appeared to be nervous during this time. The record does not reflect that appellant or any of the passengers gave any conflicting stories, or that anyone made any suspicious or incriminating statements. There was no attempt by appellant or the other passengers to flee the scene. Officer Morrison testified that he did not smell the odor of marihuana on appellant’s clothing, nor did he find any contraband on appellant when he searched him. There was no evidence that appellant appeared to be under the influence of any drug. The record does not reflect that the baggie of marihuana was in plain view of appellant, since it was under the seat and only an inch of plastic protruded. After a full search of the car, no more marihuana was found. The marihuana was not found in appellant’s actual possession. The State did not attempt to disprove the ownership of the contraband by the driver or the third passenger.

Thus, the only evidence linking appellant to the contraband was his proximity in the car to the place where the marihuana was found. Although Officer Morrison testified that he smelled a faint odor of marihuana in the car, he testified that it was not recent, and that he could not say if the odor was a day or a week old. The State did not present evidence that the contraband did not belong to the driver or the third passenger. Carr testified that the marihuana belonged to her; as the trier of fact, the trial judge was entitled to disbelieve her. Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977). However, his disbelief of her testimony cannot be taken as evidence that the marihuana belonged to appellant, in light of the fact that two other persons were in the car and did not disclaim ownership of the contraband at trial.

Thus, we conclude that upon these facts the State has failed to prove by a preponderance of the evidence that appellant was in possession of the marihuana. Therefore, the trial court abused its discretion in revoking appellant’s probation on this ground.

The judgment is reversed.


text:
    Leroy JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 58445.
    Court of Criminal Appeals of Texas, Panel 1.
    Sept. 27, 1978.

      Mark J. Sideman, San Antonio, for appellant.
    Bill M. White, Dist. Atty., David A. Ber-chelmann, Jr., and H. Wayne Campbell, Asst. Dist. Attys., San Antonio, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from an order revoking probation. On January 20, 1975, appellant entered a plea of guilty before the trial court to the offense of forgery. His punishment was assessed at four years confinement in the Texas Department of Corrections, but imposition of sentence was suspended and appellant was placed on probation. Among the terms and conditions of probation, appellant was to,

“2. Avoid injurious or vicious habits and abstain from the use of narcotic drugs in any form . . . ”

The record reflects that the court attached a special condition of probation, which was,

“DEFENDANT TO REPORT TO AN AGENCY FOR TREATMENT
“(a) Defendant will immediately contact the Patrician Movement and apply for treatment under this Narcotic Addiction Program and will comply with all rules and regulations as directed by Father Brosnan, or any of his assistants. The defendant will submit to the Nalline or urine analysis tests of narcotics or dangerous drugs usage, or any other tests, treatment, or instructions whenever instructed by them. The defendant will remain in this program until medically discharged.
“(b) Upon rejection or non-acceptance of any phase of this program, the defendant will immediately report to the Bexar County Adult Probation Office. Upon reporting to the Adult Probation Office, the defendant will comply with any instructions or directives by the Court for further treatment in any program or in any agency, so directed for rehabilitation.
“(c) At any time during defendant’s period of probation, defendant will at the direction of the Court, report to the Patrician Movement for tests and evaluation of his drug use.”

Thereafter, on July 15, 1977, the State filed an amended motion to revoke appellant’s probation, alleging that he had used morphine in violation of probation condition number 2, and that he had failed to comply with the special condition of probation. Specifically, the motion alleged that appellant had failed to comply with the rules and regulations of the Patrician Movement in that he failed to keep twenty-four consecutive appointments in the program. After a hearing, the trial court entered an order revoking appellant’s probation on the basis of the two violations.

Appellant first contends that his conviction for forgery is void since the indictment is fundamentally defective. The indictment, in pertinent part, alleges that appellant:

“did then and there with intent to defraud and harm another, PASS TO WILLIAM WONG a writing that had been MADE, ALTERED AND COMPLETED so that it purported to be the act of another who did not authorize the act, and which said writing is to the tenor following: [at which place a copy of the check was set out] . . .”

Appellant contends that this indictment is fundamentally defective for failure to allege that the passing of the instrument was done with the knowledge that it was forged. He contends that the indictment, therefore, does not allege a culpable mental state as required by Sec. 6.02, V.T.C.A. Penal Code.

This contention was decided adversely to appellant in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977) (Opinion on Motion for Rehearing) and reaffirmed in Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977). Therein, we held that an indictment for forgery which' fails to allege knowledge as an essential element is not fundamentally defective.

In Jones, supra, we noted that a reading of the forgery statute, Sec. 32.21, V.T.C.A. Penal Code, “reveals that it unequivocally prescribes a single culpable mental state for forgery: This is the intent to defraud or harm, which is required by subsection (b) of Section 32.21.”

The indictment in the instant case does allege that the act was committed “with intent to defraud or harm another,” which is the essential mental element. Therefore, the indictment is not fundamentally defective for failing to allege a culpable mental state. Jiminez v. State, supra; Jones v. State, supra; see also Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976). Appellant recognizes our prior ruling on this matter, but urges that we overrule our prior holdings. This we decline to do, for the reasons stated in Jones v. State, supra. Appellant’s first contention is overruled.

Appellant next contends that the trial court abused its discretion in finding that he had violated the special condition of his probation, which required him to participate in the drug treatment program. He contends that this special condition of probation was invalid as an improper delegation of authority by the trial court to the treatment center.

In Smith v. State, 527 S.W.2d 896 (Tex.Cr.App.1976), we reiterated that a probationary condition which requires the probationer to report to the probation officer “as directed” constitutes an improper delegation to the probation officer of the setting of the terms of probation. See also Parsons v. State, 513 S.W.2d 554 (Tex.Cr.App.1974); Brown v. State, 508 S.W.2d 366 (Tex.Cr.App.1974); De Leon v. State, 466 S.W.2d 573 (Tex.Cr.App.1971).

The special condition of probation in the instant case is distinguishable from the conditions held invalid above. The condition that appellant participate fully in the drug treatment program was not vague and ambiguous. Appellant was required to enroll in the Narcotic Addiction Program, participate in the treatment programs and abide by the rules and regulations of the program. Upon appellant’s non-acceptance of any phase of the program, he was to report to the Probation Office for further directives and instructions from the court. The court retained ultimate supervision over appellant during the probationary period, but just required appellant to receive treatment from an established program. This was not an invalid condition of probation. See Figgins v. State, 528 S.W.2d 261 (Tex.Cr.App.1975).

The trial court did not abuse its discretion in revoking appellant’s probation on the ground that appellant had violated this special condition. David Dunn, a supervisor with the Patrician Movement, testified that appellant began treatment in February of 1975, as an outpatient, with appointments twice a week. Dunn testified that appellant did not report as required and was subsequently placed in jail because of traffic tickets. He was released to the custody of the Patrician Movement where he was placed in a residential facility. In December of 1976, appellant was placed on outpatient status again, to report and receive treatment once a week. He was subsequently scheduled to report to the program three times a week, which he refused to do. Dunn testified that appellant then missed twenty-four consecutive appointments at the program. The evidence is sufficient to show that appellant failed to comply with the rules and regulations and treatment program of the Patrician Movement. Therefore, the court did not abuse its discretion in revoking appellant’s probation on this ground.

Appellant next contends that the evidence is insufficient to show that he used morphine in violation of probation condition number 2. Appellant is correct that the evidence is insufficient to prove this violation. However, one sufficient ground for revocation would support the trial court’s order revoking probation; since there was sufficient evidence to show that appellant violated condition number 15, this contention need not be considered. Gobell v. State, 528 S.W.2d 223 (Tex.Cr.App.1975); Ross v. State, 523 S.W.2d 402 (Tex.Cr.App.1975).

The judgment is affirmed.


author: ODOM, Judge. VOLLERS, Judge,

text:
    Clyde Wayne LOVETT, Appellant, v. The STATE of Texas, Appellee.
    No. 58565.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    Charles C. Orsburn, Joseph Paul McGuffy, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M.- Titus and Robert N. Burdette, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated rape; punishment was assessed by the court at twelve years.

We are confronted at the outset with defects in the record that require dismissal. The sentence was pronounced immediately upon the heels of assessment of punishment without waiver of the time allowed by statute for motion for new trial or in arrest of judgment. Although the docket sheet and form sentence recite “ten days time waived,” this is not sufficient to reflect the required waiver, and furthermore is in conflict with the true proceedings reflected in the transcribed court reporter’s notes. Middleton v. State, 537 S.W.2d 25 (Tex.Cr.App.). Although the record shows that a motion for new trial was filed and a hearing on it was conducted, those proceedings occurred before assessment of punishment and therefore before entry of judgment. The time for those proceedings is after judgment and before sentence. See Art. 40.05, V.A.C.C.P.; Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.); Faurie v. State, 528 S.W.2d 263 (Tex.Cr.App.).

Because the sentence was pronounced too soon, the appeal must be dismissed. Bedell v. State, 443 S.W.2d 850 (Tex.Cr.App.); Matheson v. State, 492 S.W.2d 273 (Tex.Cr.App.); Woods, Faurie, Middleton, all supra. After proper time for motion for new trial has passed and any such motion disposed of, timely sentence should be pronounced and notice of appeal may be given.

The appeal is dismissed.

VOLLERS, Judge,

dissenting.

I dissent to the dismissal of this appeal. I quite agree that the sentence was untimely pronounced upon the heels of assessment of punishment. I cannot agree that because the sentence was pronounced too soon the appeal must be dismissed. Article 40.-05, V.A.C.C.P. gives any person convicted of a crime ten days in which to file a motion for new trial or motion in arrest of judgment. The pronouncement of sentence does not deprive the convicted party of this right. Article 42.03, V.A.C.C.P. provides for the pronouncement of sentence in the presence of the defendant at any time after the expiration of time allowed for making the motion for new trial or motion in arrest of judgment. The fact that the sentence is pronounced untimely may be a grounds for setting it aside upon objection by appellant, but does not invalidate the sentence.

The reliance by the majority in this case upon prior opinions of this Court correctly interprets those cases but those cases should be reexamined. A case such as this presents the perfect example to show that the rule pronounced in Woods v. State, 532 S.W.2d 608 and Faurie v. State, 528 S.W.2d 263 is unsound.

In the instant case the appellant makes no suggestion that he wanted to file a motion for new trial after the assessment of punishment or that he was denied the opportunity to file a motion for new trial or motion in arrest of judgment at any time. We should only set aside a sentence which is untimely pronounced where the appellant objects to such a sentence and attempts to file or is denied the right to file a motion for new trial or motion in arrest of judgment as provided by law.

This record quite clearly reflects that the right to file a motion for new trial or motion in arrest of judgment after assessment of punishment was waived by inaction by the appellant in this cause. We have consistently held that there is a waiver of constitutional rights by the failure to urge them. It is inconceivable to me that a constitutional right can be waived by failure to urge it but a statutory right can not be.

I dissent.


author: MURRAY, Justice.

text:
    Jesse RANEY, Appellant, v. UVALDE PRODUCERS WOOL & MOHAIR CO., INC., Appellee.
    No. 15999.
    Court of Civil Appeals of Texas, San Antonio.
    July 19, 1978.
    Rehearing Denied Sept. 26, 1978.
    Houston C. Munson, Jr., Gary J. Schroeder, Gonzales, for appellant.
    Taylor Nichols, Uvalde, for appellee.
   OPINION

MURRAY, Justice.

This is a suit on a contract for the sale and purchase of mohair. On February 13, 1973, Jesse Raney, appellant, and Uvalde Producers Wool & Mohair Co., Inc., appel-lee, entered into a written contract for the sale and purchase of “1973 Spring Adult Mohair and Spring Kid Mohair” at a price of $1.47 per pound for Spring Adult Mohair and $1.75 per pound for Spring Kid Mohair. The contract provided for 25,000 fleeces.

It is appellee’s contention that the word “fleeces” has a commonly accepted meaning in the mohair industry; that based upon the usage of the trade, a spring fleece of kid mohair is three pounds on the average, and the weight of a spring fleece of adult mohair is four pounds on the average, and therefore the 41,000 pounds of mohair delivered by appellant to appellee was 46,500 pounds under the contract. The mohair purchased from appellant was in turn contracted by appellee to Clyde Young Wool Company for delivery in the same spring. Appellee was required to purchase mohair on the open market for $2.07 per pound in order to meet its contract with Clyde Young Wool Company, and by this suit attempts to recover from appellant the difference between the contract price and $2.07 for the 46,500 pounds of mohair that it contends appellant was deficient. The contract involved in this case is a typical “forward” contract whereby a producer protects himself against a price decline by insuring that he will be able to sell his production at sufficient price to cover his expenses. There is always a possibility that the price will increase rather than decrease, and, in fact, was the case for the mohair market in the spring of 1973 after the contract of February 13, 1973.

The jury findings were as follows:

1. That appellant failed to deliver to appellee 25,000 fleeces of mohair in accordance with the contract;
2. That the word “fleeces” had a well recognized meaning based upon the usage of trade in the mohair industry, that the weight of a Spring fleece of kid mohair was three pounds on the average and that the weight of a Spring fleece of adult mohair was four pounds on the average;
3. That appellant failed to deliver to appellee 46,116 pounds of mohair under the contract;
4. That appellee was required to pay $2.07 per pound for mohair to cover the shortage due under the contract of February 13, 1973.

Judgment was entered on the jury verdict against appellant in the amount of $27,-669.60, with interest.

Appellant’s main contention on this appeal is that there was no valid contract because there was no meeting of the minds on the essential and material terms of the contract. Appellant contends that the word “fleece” means all the mohair from one goat and therefore he was contracting for 25,000 head of goats. The attempted conversion of 25,000 fleeces into pounds results in a failure of the meeting of the minds of the contracting parties and therefore there was no contract. Appellant’s contention is without merit.

There is ample evidence in the record that in the business of mohair production the word “fleeces” has a well understood meaning in the mohair industry and that the weight of a spring fleece of kid mohair was three pounds on the average and that the weight of a spring fleece of adult mohair was four pounds on the average. The Business and Commerce Code, Sec. 2.202, Final Written Expression: Parol or Extrinsic Evidence, states:

Terms ... set forth in a writing intended by the parties as a final expression or their agreement . . . may be explained or supplemented
(1) by course of dealing or usage of trade (Sec. 1.205) or by course of performance (Sec. 2.208);

Parol evidence is admissible to explain usage of trade as was done in this case. Burdette v. Cook Industries, Inc., 544 S.W.2d 495 (Tex.Civ.App. — Corpus Christi 1976, writ ref’d n. r. e.); 2 C. McCormick & R. Ray, Texas Evidence § 1651 (Supp.1974); 51 Tex.Jur.2d Sales § 397 (1970).

Appellant would be expected to contract for the sale of his mohair with full knowledge of the factors and usage of trade that are peculiar to the business of mohair production and marketing. He had been in the mohair business since 1966 and there was testimony to the effect that he was the largest producer of mohair in the area and would undoubtedly be considered a “merchant” under the definition as stated in the Code and as clarified by our Supreme Court in the case of Nelson v. Union Equity Co-op Exchange, 548 S.W.2d 352 (Tex.1977). This contract is to be read on the assumption that the usage of trade was taken for granted when the contract was phrased, and unless it has been carefully negated in the contract, it has become an element of the meaning of the word “fleece.”

Appellant next contends that the contract which was introduced into evidence was clear and unambiguous on its face and called for “number of head” and not for fleeces. This contention is without merit. While it is true that the contract was a printed form contract and contained a blank column that was titled “Number Head,” this blank was filled in in longhand and read “25,000 fleeces Spring Adult and Kid Mohair.” Where the written and printed word in a contract are in conflict, the written word controls. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341 (1957); 13 Tex.Jur.2d Contracts § 144 (1960).

Appellant also assigns as error the action of the trial court in admitting the original warehouse receipts showing the actual number of pounds of mohair delivered to appellee. From the evidence, it appears that when the mohair was delivered to ap-pellee it was weighed by an employee and a receipt was prepared in duplicate. The original is normally given to the producer and a copy is kept in the regular course of business of appellee. In this particular case, however, appellant did not pick up the originals and they were kept in the company’s safe. Mr. Charles Dishman, the general manager of appellee, had previously testified as to the amount of mohair delivered by appellant under the contract without objection. We hold that the predicate outlined under Tex.Rev.Civ.Stat.Ann. art. 3737e (Supp.1978) was fully complied with even though there was some confusion caused by the failure of appellant to pick up the original receipts. It was undisputed that the warehouse receipts introduced into evidence were the original copies of the records usually kept by appellee and had been in the possession of appellee up to the time of trial.

Other points of error raised by appellant have been considered by the court and found to be without merit and are overruled.

The judgment of the trial court is affirmed.

      . Tex.Bus. & Comm.Code Ann. § 2.202 (1968).


text:
    LEONARD AND HARRAL PACKING COMPANY, Appellant, v. Randall HAHN et al., Appellees.
    No. 15949.
    Court of Civil Appeals of Texas, San Antonio.
    July 31, 1978.
    Rehearing Denied Sept. 26, 1978.

      R. H. Mercer, Richard G. Strong, San Antonio, for appellant.
    Robert B. Thornton, Robert R. Biechlin, Jr., Ronald S. Schmidt, Moursund, Ball & Young, Edward P. Fahey, Groce, Locke & Hebdon, San Antonio, for appellees.
   MURRAY, Justice.

This is a statutory wrongful death action brought by Randall Hahn against Leonard and Harral Packing Company, and Sears Roebuck & Company. Hahn alleges that negligence of the driver of L & H’s truck caused its collision with a vehicle driven by his wife, Wanda Ruth Hahn, and thus caused her death. He also alleges that negligence of Sears in connection with inspection of the tire on the truck caused the collision and that Sears was liable as vendor of a defective tire.

L & H brought a third party action against Sears, as vendor, and Kelly-Springfield Tire Company, as manufacturer, of a defective tire which blew out while on the left front wheel of L & H’s tractor, causing the driver to lose control of the tractor and trailer. This action was brought under negligence, breach of warranty and strict liability in tort for damages to the tractor and trailer and for indemnity and contribution on any judgment rendered against L & H to Hahn.

The case was submitted to the jury on special issues which found L & H’s driver guilty of various acts of negligence, which were a proximate cause of the accident in question, and that the tire in question was not defective at the time it was sold. The jury awarded Hahn $225,000 for the pecuniary loss resulting from the death of his wife and $1,298.50 for funeral and burial expenses. The trial court entered judgment awarding Hahn actual damages against L & H and denied any recovery against Sears.

L & H has perfected appeal to this court and by its Points of Error Nos. 1 and 2 asserts improper jury argument by counsel for Hahn and that the judgment is excessive.

In connection with the jury argument, no objection was made on behalf of L & H.

It would be impossible for an attorney to argue the damages of a case such as this one without touching the natural feeling of sympathy for the husband that the jury might have due to this tragic accident. The undisputed facts are that a young wife was killed after three and a half months of marriage. The attorney’s reference to the marriage vows and his use of song titles, such as “Just Me and My Shadow” and “Little Things Mean a Lot,” and other such phrases, were not of such a character as would require reversal under any circumstances. We hold that the remarks were not so plainly prejudicial to L & H as to demand that the verdict be set aside, in the absence of an objection by its counsel at the time the words were spoken. In a case such as this, attorney for the plaintiff could not be expected to be apathetic nor could he be required to present his client’s case to the jury in a stoic manner. Turner v. Turner, 385 S.W.2d 230 (Tex.1964); Ramirez v. Acker, 134 Tex. 647, 138 S.W.2d 1054 (1940). In Ramirez, the Supreme Court stated, at page 1056:

It is not the purpose of the rules announced by this court to unreasonably limit counsel in discussing the facts and issues raised by the evidence. Great latitude must be allowed in this regard. Counsel ofttimes in their zeal in their arguments to the jury make statements the effect of which can be controlled by the court’s telling counsel to desist making same and by instructing the jury to disregard same.

And in Turner, the Supreme Court said, 385 S.W.2d at page 237:

We must presume that the trial judge, on proper objection being made, had he considered the argument unfair or vicious would have sustained objections and given appropriate instructions to the jury to disregard the same.
Argument which could be properly cured by objection by opposing counsel and instruction [is] by the trial judge is not reversible error in the absence of such objection. Unless the argument is incurable, a litigant will not be permitted to lie in wait, taking a chance on a favorable verdict, and, being disappointed, complain for the first time of improper argument in a motion for new trial.

We, therefore, overrule this point of error urged by L & H.

L & H’s Point of Error No. Two is as follows:

The Trial Court erred in granting judgment against the defendant Leonard and Harral Packing Company in the sum of $226,298.50 because that judgment is excessive.

This point only raises the issue of either legal sufficiency of the evidence or the point of no evidence. McDonald v. New York Central Mutual Fire Insurance Company, 380 S.W.2d 545 (Tex.1964); Calvert, 38 Texas L.Rev. 361 (1960). In McDonald, the Supreme Court said, at page 548:

The points do not seek relief from the jury findings on the ground that they are not supported by sufficient evidence or that they are against the great weight of the evidence, but relate only to the type of judgment that the Court entered. They are not applicable to the granting of a new trial after the entry of a judgment. We therefore hold that the points in the Court of Civil Appeals above referred to only raise[d] the legal sufficiency of the evidence or the point of no evidence.

Damages in cases of this nature cannot be proved with a certainty and accuracy as in other cases and the jury must necessarily be vested with considerable discretion and latitude in fixing damages. Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153 (Tex.Civ.App. — Fort Worth 1959, writ ref’d n. r. e.). The amount of damages may not be determined alone by what judges of trial courts or reviewing courts would have awarded had they been sitting as triers of the fact. It is not the function of the court of civil appeals to substitute its opinion for the verdict of the jury on the amount of recovery, nor to disturb it in the absence of a showing that a jury was influenced by passion, prejudice, or some other improper motive. Armstrong Tire & Rubber Company v. Shearer, 290 S.W.2d 294 (Tex.Civ.App. — San Antonio 1956, writ ref’d n. r. e.).

At the time of decedent’s death she was 28 years of age and had had two years of college. Prior to the marriage to Hahn, the decedent had worked at a country club making $2.75 per hour and for two or three weeks before her death she was delivering papers for the San Antonio Light with the help of her husband.

Hahn, who was three years younger than his wife, testified at length concerning the quality of the relationship with his deceased wife and her services around the house, her availability for daily consultation and comfort, her care and support, and her invaluable advice and direction in family matters.

We have reviewed the evidence in this case, including the testimony of plaintiff’s witness, John Schieren, a Doctor of Economics and Professor in the School of Business at Texas Christian University, and although the verdict of the jury was high, we cannot say that the award exceeded reasonable compensation in this case. Appellant’s Point of Error No. Two is overruled.

Appellant next complains of the action of the trial court in refusing to submit its requested Issue No. 1 with its accompanying definitions. Requested Issue No. 1 is as follows:

Do you find from a preponderance of the evidence that the tire on the left front wheel of Leonard and Harral Packing Company’s truck No. 118, as manufactured by Kelly-Springfield Tire Company, at the time the tire was sold to Leonard and Harral Packing Company was in a defective condition?
By the term “defective condition” as used in this charge is meant a tire so manufactured or sold that it would create an unreasonable risk of harm.

This was followed by a correct definition of “unreasonable risk of harm.”

The following issue was submitted by the trial court and answered by the jury.

Special Issue No. 9: Do you find . was in a defective condition at the time the tire was sold to Leonard and Harral Packing Company?
“Defective condition” means that the product is not safe for normal use.
Answer: We do not
If you have answered Issue No. 9 “We do” then answer Issue No. 10; otherwise, do not answer Issue No. 10.
Special Issue No. 10: Do you find from a preponderance of the evidence that such defective condition made such tire unreasonably dangerous?
“Unreasonably dangerous” means that the product is dangerous to an extent beyond that which would be contemplated by the consumer, with the ordinary knowledge common to the community as to its characteristics.
Answer: _

Restatement (Second) of Torts, § 402(a) (1965), is as follows:

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused .

While it is true that the requested issue embraces the elements of this section, it is equally true that issues submitted by the court (9 and 10), embrace the elements of this section. Section 402(a) requires that the product be in a defective condition and that it be unreasonably dangerous and although either submission would be correct, we believe that the Texas Rules of Civil Procedure, Rule 277, permits the court to submit the issue of defective condition and unreasonably dangerous in separate issues.

The jury was given a fair and adequate opportunity to determine whether the tire was defective and whether such defect rendered the tire unreasonably dangerous. The trial court properly refused to submit the requested issue which was but a different phase or shade of the same issue. Smith & Conklin Bros. v. Griffith, 158 Tex. 341, 268 S.W.2d 124 (1954); Tex.R.Civ.P. 279 (1978). L & H’s Point of Error No. Three is overruled.

The next three points of error of L & H complain of the action of the trial court in granting judgment that L & H recover nothing from Kelly-Springfield Tire Company and Sears because (1) there is no evidence to support the answer of the jury to Special Issue No. 9; (2) because there is insufficient evidence to support the answer of the jury to Special Issue No. 9, and (3) the answer to Special Issue No. 9 is contrary to the overwhelming preponderance of the evidence as to be manifestly unjust. These points of error are clearly “no evidence” points and, as the burden of proof on Special Issue No. 9 was on L & H, can only be treated as points raising the issue that as a matter of law the defective tire was established by the evidence. McDonald, supra; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960). L & H has filed a motion for leave to file a post-submission brief raising the point “against the great weight and preponderance of the evidence.” We have denied this motion. Tex.R.Civ.P. 418, prescribes that such brief shall contain a statement of points upon which the appeal is predicated. Although the briefing rules are to be liberally construed, they should not be so liberalized or extended so as to permit additional points after submission of an appeal in the absence of most extraordinary circumstances.

The Statement of Facts in this case is well over 1,000 pages. L & H’s expert witnesses, Mr. Doyle and Dr. Mosier, testified that in their opinion there was a defect in the tire at the time of manufacture. Sears’ expert witnesses, Mr. Hill and Mr. Kessle, testified that in their opinion there was no defect in the tire at the time of sale. There was considerable dispute between these experts as to whether the tire blew out because of a defect or because the tire was run with low pressure. The jury, being the final arbiter of facts in the case, simply determined that the proponents to Special Issue No. 9 had not met their burden of proving that the tire in question was defective at the time of manufacture. It is common knowledge that sometimes tires blow out for reasons other than defects. The case cited by Hahn, Darryl v. Ford Motor Company, 440 S.W.2d 630 (Tex.1969), is not in point. In Darryl, the jury found that the braking system of the car was defective. The Court of Civil Appeals, 432 S.W.2d 569, held there was no evidence of defect and reversed and rendered. The Supreme Court said, at page 631:

Writ of error was granted on petitioners’ first point, which complains of the Court of Civil Appeals[’] holding that there was no evidence to support the finding of the jury that the defective condition of the push rod existed at the time when it was sold by Ford Motor Company.
We hold that there was some evidence to support the submission of the following issues and to. support the jury’s answers thereto:
* * * * * *
The evidence conclusively shows that the push rod bent either when Voyles applied the brakes in order to avoid the collision or as a result of the collision.
* * * * * *
It cannot be seriously contended that a push rod that will bend to such an extent that it will not activate the braking system is not ‘unreasonably dangerous’.

The Supreme Court held that there was no other explanation in the record for the cause of the accident other than the defective push rod. Considering the entire record in this case, and the extent of the testimony given by Mr. Hill and Mr. Kessle, we hold that Hahn has failed to prove as a matter of law that the tire was defective at the time of sale.

The judgment of the trial court is affirmed.


author: O’QUINN, Justice.

text:
    STONE CITY ATTRACTIONS, INC., et al., Appellants, v. John HENDERSON et al., Appellees.
    No. 12769.
    Court of Civil Appeals of Texas, Austin.
    Aug. 30, 1978.
    Rehearing Denied Oct. 4, 1978.

      Henry W. Christopher, Jr., Johnson & Christopher, San Antonio, for appellants.
    Mark Z. Levbarg, Levbarg, Weeks & Chapman, Austin, for appellees.
   O’QUINN, Justice.

This lawsuit entails accounting upon dissolution of a partnership, after two inactive partners brought suit against the managing partner for an accounting.

Jack Orbin, who is an appellant, and the plaintiffs below John Henderson and James Ramsey, formed a partnership called Stone City Attractions in February of 1973, with Orbin as managing partner, for the purpose of organizing and presenting for profit concerts of the “rock ‘n’ roll” and “country- and-western” type. Before the end of 1973 Henderson and Ramsey were arrested and charged with conspiring to import marijuana, after which they were convicted in federal court and sentenced to imprisonment for two years, with release in January of 1976.

When the partnership was formed in 1973, Ramsey and Henderson contributed $6,000 each, and Orbin contributed initially $400, followed by the additional sum of $3,900 some months later. The agreement was that Orbin would be the managing partner at a monthly salary of $500. The partners agreed that each of them would own an equal share in the venture and would share equally in profits.

While Henderson and Ramsey were in prison, Orbin incorporated Stone City Attractions, Inc., late in January of 1974, using funds from the partnership. Orbin claimed at trial of the accounting suit that he formed the corporation, with Orbin as sole shareholder, on advice of his attorney to create a holding entity for his interest in the partnership. Orbin did not inform Henderson or Ramsey of the incorporation, but from time of incorporation all business of the company was conducted utilizing the partnership bank account.

Orbin also claimed at trial that the partnership was an ongoing entity, with only his interest incorporated, but the record discloses that for the year 1974, the first year Henderson and Ramsey were away at prison, returns from income tax reported gross income of $13,400 for the partnership and gross income of $114,000 for the corporation. The partnership’s income of $13,000 for 1974 covered receipts through March 31, 1974 only, the date Orbin intended the corporation would begin operation. The record shows that all expenses incurred by the corporation were charged to the partnership, and although Orbin represented he no longer used the funds of the other partners for the corporation, records of the bank account show balances as low as $500.

Orbin arranged to meet Henderson and Ramsey on July 6, 1975, about six months prior to their final release, at which time he informed them of his desire to dissolve the partnership. Ramsey and Henderson then learned of the existence of the corporation from financial statements presented at the meeting. The record discloses testimony that Orbin failed to inform Henderson and Ramsey that for accounting purposes their respective shares of the partnership were carried as “investor’s interests” in the corporation owned exclusively by Orbin. In the month following this meeting Orbin supplied the other partners with an accounting of the partnership for the period ending June 30, 1975. This accounting showed Henderson was entitled to $3,988.32 and Ramsey entitled to $2,044.75.

Under testimony adduced at trial, the accounting Orbin supplied Henderson and Ramsey was based on designs and instructions from Orbin himself, rather than on financial statements and records of the legal entities. In the course of trial it developed that Orbin was unable to explain accounting procedures employed for the corporation; that Orbin had substantially understated the amount of gross income for the corporation; and that Orbin was not able to account for a significant percentage of the ticket receipts at some of the concerts.

The lawsuit brought by Henderson and Ramsey against Orbin and the corporation, Stone City Attractions, Inc., was grounded in part on allegations that Orbin refused to render significant and informing accounts of benefits and profits of the partnership and that in so refusing Orbin violated Section 21 of Article 6132b, V.A.T.S., requiring such an accounting. Plaintiffs below also alleged that the “partnership was not wound up properly, if at all.”

Trial of this suit began August 17, 1976, and after two days of testimony, the court entered an interlocutory order upon a finding that the accounting furnished by Orbin for the period beginning March 1,1973, and ending June 30, 1975, was insufficient and that from the latter date to time of trial there had been no accounting by Orbin. By the interlocutory order the trial court adjourned the hearing pending preparation of an accounting under supervision of the court covering the period from March 31, 1973, through August 30, 1976.

The accounting was presented in final form November 30, 1976, and trial resumed in March of 1977, consisting thereafter principally of testimony by the accountants named pursuant to the interlocutory order. At conclusion of the trial the court entered judgment that Henderson and Ramsey recover jointly from Orbin and the corporation the sum of $62,000 and a balance of $2,335 remaining in the partnership bank account.

Orbin and the corporation have appealed and bring twenty-four points of error. Condensed to the controlling issues, the points present three attacks on the judgment: (1) error in the determination that the partnership was terminated November 30, 1976, and inclusion of the seventeen months prior thereto as a winding-down period; (2) error in allowing Henderson and Ramsey shares in any post-dissolution profits; and (3) that there was no evidence, or insufficient evidence, to support the holding that Orbin breached his fiduciary duties based on the findings of fact.

The trial court filed nineteen findings of fact and seven conclusions of law. The fifteenth finding directly supports the contention of Henderson and Ramsey that Orbin as the managing partner failed to comply with requirements of Article 6132b, sec. 21, pleaded by plaintiffs below. The finding stated, “Upon demand by Henderson and Ramsey for an accounting, Orbin failed to account meaningfully [sic] for the receipts and expenditures of the business of the partnership and of the corporation.” Since the cant term “meaningfully” as an intended adverb is not English, but sheer jargon, inexact and without meaning, we must construe the finding to be, when stated in intelligible English, that Orbin failed to account fully and faithfully for receipts and expenditures of the partnership and of the corporation. The record supports that finding.

In its conclusions of law the trial court fixed June 30, 1976, as the date of dissolution of the partnership and November 30, 1976, as the termination date of the partnership. The court concluded that Orbin as the managing partner owed the highest fiduciary duty to the other partners in the several particulars set out in the findings of fact. The Court adopted the accounting prepared pursuant to the court’s order in arriving at a distribution of profits made during the seventeen months of the winding-down period and to determine the capital interests of the partners at the date of dissolution.

The trial court correctly concluded that because Orbin had assigned his partnership interest to the corporation, this transaction gave rise to the right in Henderson and Ramsey to bring about dissolution of the partnership under provisions of Article 6132b, Texas Uniform Partnership Act. Dissolution by statute is “. caused (1) Without violation of the agreement between the partners (c) By the express will of all partners who have not assigned their interests or suffered them to be charged for their separate debts . ” (Emphasis added) Section 31(1)(c), Art. 6132b, V.A.T.S.

Since Orbin did not disclose the assignment he had made of his partnership interest to the corporation at the time of assignment, Henderson and Ramsey were without notice of their right to exercise the option of dissolution. The trial court chose as the date of dissolution June 30, 1975, the date Orbin attempted to dissolve the partnership, which was six days prior to the date Henderson and Ramsey actually learned of the assignment and agreed to dissolve. It is obvious that the court chose June 30, 1975, for accounting purposes, and although appellees raise some informal objections, it is clear that the capital structure did not change during the intervening six days and no harm to any party resulted.

The rights of outgoing partners of a partnership, when the business continues after dissolution, are stated in Section 42 of Article 6132b. Under the statute if the business continues after dissolution, the partner or partners not continuing in the business may institute action for accounting and (1) claim the value of the interest held at dissolution and (2) receive in addition profits from the date of dissolution. But the outgoing partner’s right to profits will end when the value of the partner’s interest is properly paid. See Crane and Bromberg: Law of Partnership, Sec. 86(c), pp. 495-6; Cauble v. Handler, 503 S.W.2d 362, 366 (Tex.Civ.App., Fort Worth 1973, writ ref’d n. r. e.).

The trial court found, on the basis of testimony respecting Orbin’s accounting at the time of dissolution, that Orbin had failed to account fully and faithfully for the receipts and expenditures of the business. Thus the many failings of Orbin’s inadequate accounting make it clear that the value of interests held by Henderson and Ramsey were not properly determined and payable until the court ordered accounting was completed on November 30, 1976.

Under Section 21 of Article 6132b, “Every partner must account to the partnership for any benefit, and hold as trustee for it any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of its property.” (Emphasis added) The trial court correctly used November 30, 1976, as date of termination and properly distributed to each partner one-third of the profits earned in the interim from June 30 to November 30, 1976, as contemplated under the statutes. Cauble v. Handler, supra, 503 S.W.2d 366.

By cross point, appellees claim that each of them is entitled to one-third of the capital structure of the corporation as of November 30,1976. This result is not within the plain intent of Section 42 of Article 6132b which fixes the value of the outgoing partner’s interest as of dissolution. The accountants operating under the court’s order found that on June 30, 1975, the date of dissolution, the partnership comprised the interests of the Stone City Attractions, Inc., and of the interests held individually by Henderson and by Ramsey. Henderson’s interest was valued at $4,050.65 and the interest of Ramsey at $4,256.08. Henderson had received previously $3,988.32 and Ramsey had been paid $2,044.75. In addition, the trial court awarded the partnership bank account of $2,335.00 to Ramsey and Henderson. The record shows that appellants set aside $2,223.82 of this bank account and tendered it to Ramsey, bringing Ramsey’s total to $4,268.57. The balance will bring Henderson’s total to $4,099.50. It thus appears that both Ramsey and Henderson have received their share of the partnership as of June 30,1975.

We have carefully examined the record in reviewing all the contentions of appellants and of appellees. All contentions not in accord with judgment of the trial court are overruled.

The judgment of the trial court is in all things affirmed.

Affirmed.

      . Significant terms coined by American youths in creating a cult of popular music in the 1950’s. Dohan: Our Own Words, pp. 288-89 (1974).

      . Marijuana: The wild tobacco Nicotiana glau-ca, dried leaves and flowers of which are smoked in cigarettes. Webster’s New Intema-tional Dictionary, 2d ed. (unabridged) 1954; or, by statute, “the plant Cannabis sativa L. . and every compound, manufacture, salt, derivative, mixture, or preparation ... or its seeds.” Art. 4476-15, sec. 1.02(17), Texas Controlled Substances Act.


author: SHANNON, Justice.

text:
    O. C. OLSON, d/b/a Southern Investment Company, Appellant, v. Canarlice HOLMES, Appellee.
    No. 12770.
    Court of Civil Appeals of Texas, Austin.
    Aug. 30, 1978.
    Rehearing Denied Oct. 4, 1978.
    Robert F. Neal, Phillips & Neal, Austin, for appellant.
    Stephen H. Gardner, Legal Aid and Defender Society of Travis County, Austin, for appellee.
   SHANNON, Justice.

This is an appeal from a judgment entered by the county court at law of Travis County. Appellant is O. C. Olson doing business as Southern Investment Company and appellee is Canarlice Holmes.

Appellee’s lawsuit stemmed from two “non-open-ended” consumer loans made by appellant to appellee. For one loan appel-lee signed a printed promissory note and security agreement dated June 13, 1975, in the sum of $58.00. For the other loan ap-pellee signed another printed promissory note and security agreement dated August 14, 1975, also in the sum of $58.00. In her trial petition appellee claimed as basis for suit that the form of the promissory note and security agreement failed to make disclosures required by federal “Truth in Lending” legislation, 15 U.S.C. § 1639(a)(8) (1974), and regulations promulgated thereunder, 12 C.F.R. § 226.8. For the alleged failures to disclose appellee sought penalties and attorneys’ fees. 15 U.S.C. § 1640 (1974).

Both parties filed motions for partial summary judgment. Upon hearing, the court denied appellant’s motion and granted appellee’s motion. The partial summary judgment established appellant’s liability for violation of the disclosure statute and regulation. After further hearing to determine attorneys’ fees, the court entered final judgment for appellee for $400.00.

As basis for judgment the county court at law concluded that the notes and security agreements: (1) failed to describe the type of security interest claimed by the creditor in the borrower’s property and (2) the remedies of the creditor in the event of default were necessarily a part of the description of the security interest and should have been set out on the front side of the instrument instead of on the reverse side.

Appellant’s security agreement provided:

“To secure payment of the foregoing obligation or any renewal of same, and to likewise secure payment of any other indebtedness now or hereafter owed lender by borrower, borrower hereby grants to lender a security interest, subject to the terms and conditions stated on reverse side hereof, in the personal property described hereinafter, together with any and all additions thereto and to all proceeds therefrom, all hereinafter collectively called ‘Collateral.’ ”

On the reverse side of the security agreement, paragraph eight provided as follows:

“8. Upon any such default, and at any time thereafter, Secured Party may declare the entire balance of the indebtedness secured hereby, plus any other sums owed hereunder, immediately due and payable without demand or notice, less any refund due, and Secured Party shall have all the remedies of the Uniform Commercial Code. Thereupon, Borrower shall assemble the Collateral and make it available to Secured Party at a place to be designated by Secured Party which is reasonably convenient to both parties. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Secured Party will give Borrower reasonable notice of the time and place of any public sale thereof or of the time after which any private sale or any in-, tended disposition thereof is to be made. The requirement of reasonable notice shall be met if such notice is mailed, postage prepaid, addressed to Borrower at the address shown at the beginning hereof, at least five (5) days before the time of such sale or disposition. The proceeds of such sale shall be applied in the following order to: (a) the reasonable cost actually expended by Secured Party for repossessing, storing, or selling the Collateral; (b) satisfaction of indebtedness secured hereby and (c) satisfaction of indebtedness secured by any subordinate security interest in the Collateral if written notice of demand therefor is received before distribution of the proceeds is completed. Any surplus proceeds shall be paid to Borrower who shall be liable for any deficiency.”

The trial court held that the quoted description did not satisfy the requirements of 15 U.S.C. § 1689(a)(8) and 12 C.F.R. § 226.-8(b)(5). Section 1639(a)(8) requires the creditor to provide:

“(8) A description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.”

The pertinent part of § 226.8(b)(5) is as follows:

“(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, and a clear identification of the property to which the security interest relates

In construing § 1639(a)(8), the United States Court of Appeals for the Fifth Circuit has held that neither § 1639(a)(8) nor the regulations thereunder impose upon the creditor the obligation to set forth a list of its rights as a secured party. Grant v. Imperial Motors, 539 F.2d 506 (5th Cir.1976). The security interest retained by the creditor in Grant was described as follows:

“Holder retains security title to and security interest in property until total of payments and any other indebtedness now or hereafter due or owing by Buyer to Holder, however and whenever incurred, is paid.”

The Court in Grant held the description of the security interest to satisfy the requirements of § 1639(a)(8). This Court followed Grant in Hight v. Jim Bass Ford, Inc., 552 S.W.2d 490 (Tex.Civ.App.1977, writ ref’d n. r. e.).

Appellee insists that McDonald v. Savoy, 501 S.W.2d 400 (Tex.Civ.App.1973, no writ), and its progeny require affirmance of the judgment.

The security interest in Savoy was stated as follows:

“Seller is reserving a security interest in the above vehicle to secure this and any other debt Buyer may owe Seller or any subsequent Holder.”

The San Antonio Court of Civil Appeals in Savoy was of the opinion that the “ . . . mere recital that ‘a security interest’ is being retained falls short of satisfying the requirement that the security interest be described.” Savoy was decided before the Court of Appeals in Grant construed § 1639(a)(8) and the regulations thereunder.

This appeal involves, of course, rights conferred by federal statute and regulation. Accordingly, our determination of the appeal should be governed by the federal courts’ construction of the statute and regulation. See Galveston H. & S. A. Ry. Co. v. American Grocery Co., 122 Tex. 1, 36 S.W.2d 985, 989 (1931); Deep South Oil Co. of Texas v. Texas Gas Corp., 328 S.W.2d 897 (Tex.Civ.App.1959, writ ref’d n. r. e.). As we understand Grant v. Imperial Motors, supra, neither the statute nor the regulations impose upon the seller the obligation to set forth a list of its rights as a secured party. See Hight v. Jim Bass Ford, Inc., supra.

The trial court also concluded that paragraph eight of appellant’s instrument, which set out the remedies of the creditor in the event of default, should have been placed on the front side of the instrument because those remedies were necessarily a part of the description of the type of security interest taken. Since Grant holds that a listing of the creditor’s rights is not required by statute or regulation, the fact that appellant unnecessarily listed his remedies as a creditor on the reverse side of the instrument is not a violation of the statute or regulation.

The judgment is reversed and judgment is here rendered that appellee take nothing. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 376 (Tex.1958).


author: McDONALD, Chief Justice.

text:
    Charles Allen MAYO, Appellant, v. William HALL et ux., Appellees.
    No. 5921.
    Court of Civil Appeals of Texas, Waco.
    Aug. 31, 1978.

      Curtis Pritchard, Altaras, Altaras & Pritchard, Cleburne, for appellant.
    Robert A. Sparks, Cleburne, for appellees.
   OPINION

McDONALD, Chief Justice.

This is an appeal by Appellant Charles Allen Mayo from that portion óf a judgment which modified his visitation rights with his 3 children, and raised the amount he is required to pay for child support.

Appellees William and Mary Lou Hall filed this suit seeking termination of appellant’s parental rights, and for a stepfather adoption of the 3 children of Mrs. Hall and appellant.

The termination and adoption were denied, but the trial court modified appellant’s visitation rights by decreeing appellant have possession of the children the last weekend in January, March, September and November, beginning at 6 pm on Thursday to 6 pm on Sunday; from the last Thursday in May through July 15; and one half of the school Christmas vacation except Christmas day.

The decree set appellant’s child support at $110. per month per child.

The decree further provided appellant “shall not take the children out of * * * Texas while cause D-811 612 is pending in * * * California. However, when said cause is disposed with prejudice [appellant] shall be able to take the children from the State of Texas during Christmas and summer visitation”.

Appellant appeals on 4 points.

Points 1 and 2 contend the trial court erred in modifying appellant’s visitation rights and the amount of child support appellant is required to pay because there were no pleadings to support same, and that without pleadings the judgment is fundamentally defective.

Appellant and Mary Lou Hall were divorced in Montana. Both thereafter moved to California, where in 1974 the Superior Court of Los Angeles County rendered a judgment decreeing appellee custody, and appellant visitation with his children the 3rd weekend of each month, and a 3 weeks period during the summer; and set appellant’s child support payments at $90. per child per month.

In January 1977 appellees moved to Johnson County, Texas and on November 29, 1977 filed this case as a petition for adoption of the children by William Hall, and termination of the child-parent relationship between appellant and his children* * *.

At the conclusion of the evidence the trial court stated that he was denying a termination [and the adoption], but “some other things need to be done that there are not any pleadings to support * * *. Is there any objection from either side about the court in the absence of such pleadings going ahead and making some orders that make some sense about these folks and these children? Any objection?” Mr. Pritchard (counsel for appellant) “We have no objections”.

The court then after discussion with the parties and attorneys in open court made the orders concerning visitation and child support.

The orders entered give appellant less weekend visitation, but longer visitation on the weekends granted, and gives him some 3 weeks additional summer visitation; and raises the child support from $90. per month per child to $110. per month per child.

The evidence is ample to support the orders for visitation and child support.

Rule 67 TRCP provides: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings”.

We hold the issues as to modification of visitation and support payments were tried by both the express and implied consent of the parties.

Moreover, courts are given wide discretion in suits invoking jurisdiction with respect to custody and control of minor children of divorced parents. And technical rules of practice and pleading are of little importance in determining issues concerning custody, visitation and support payments of such children. Leithold v. Plass, Tex.S.Ct., 413 S.W.2d 698.

Points 1 and 2 are overruled.

Point 3 contends the trial court erred in entering orders concerning visitation and support because another court of continuing jurisdiction existed.

While all the parties lived in California the California Court in 1974 rendered visitation and child support orders. In January 1977 appellees moved to Johnson County, Texas, and appellant continued to live in California. Appellees filed this case in Johnson County, Texas November 29, 1977 and appellant answered on January 16, 1978. On January 31,1978 appellant filed a custody action under the old case number in California, and the court granted appellant temporary custody Ex Parte and without notice to appellees. On February 2, 1978 appellant filed plea in abatement in this case asserting the pending custody action in the California Court.

Article 5, Section 8, Constitution of Texas gives the District Court jurisdiction of matters affecting minors. Appellees with the minors had lived in Johnson County, Texas since January 1977, and filed this case November 29, 1977. Johnson County had jurisdiction to adjudicate visitation and support payments. Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551.

Moreover, Section 11.04 Texas Family Code authorized the filing of this case in Johnson County, Texas.

Jurisdiction having attached on filing of this suit in Johnson County, it cannot be taken away or arrested by the subsequent proceedings filed in California on January 31, 1978. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

And the rule is that mere pendency of a suit in one State will not be grounds for abating a suit in another State between the same parties and involving the same subject matter. Mills v. Howard, Tex.Civ.App. (Amarillo) NWH, 228 S.W.2d 906; Ev ans v. Evans, CCA (San Antonio) NWH, 186 S.W.2d 277; Cohen v. Cohen, Tex.Civ.App. (Austin) NWH, 194 S.W.2d 273.

Point 3 is overruled.

Point 4 contends the trial court erred in refusing to allow appellant to take the children out of Texas for visitation purposes until the custody action pending in California was dismissed with prejudice.

When a suit is filed as here in a court of competent jurisdiction, and all necessary parties are before it, it is entitled to proceed to judgment, and may protect its jurisdiction by enjoining the prosecution of a suit subsequently filed involving the same controversy. Cleveland v. Ward, supra; Anderson v. Young, 128 Tex. 631, 101 S.W.2d 798; PPG Industries, Inc. v. Continental Oil Co., Tex.Civ.App. (1 Houston) NRE, 492 S.W.2d 297; Barr v. Thompson, Tex.Civ.App. (Dallas) NWH, 350 S.W.2d 36.

Under the facts of this case and the foregoing authorities we think the trial court authorized to refuse to allow appellant to take the children out of Texas until the custody case he filed subsequent to this case in California be dismissed with prejudice.

Contention 4 is overruled.

AFFIRMED.

      . Brenda, born in 1965; Amanda, bom in 1966; and Charles Jr., bom in 1969.