author: ONION, Presiding Judge. ODOM, Judge, DOUGLAS, Judge,

text:
    Jorge BASALDUA, Appellant, v. The STATE of Texas, Appellee.
    No. 54427.
    Court of Criminal Appeals of Texas.
    Nov. 2, 1977.
    State’s Motion for Rehearing Denied Nov. 30, 1977.

      James C. Harrington, San Juan, for appellant.
    Oscar Mclnnis, Dist. Atty. and Terry D. Key, Asst. Dist. Atty., Edinburg, for the State.
   OPINION

ONION, Presiding Judge.

This is a purported appeal from an order refusing to alter or modify conditions of probation.

On July 7,1975 appellant entered a guilty plea before the court after having waived trial by jury for the offense of possession of a usable quantity of marihuana of more than four ounces. His punishment was assessed at three (3) years in the Department of Corrections and a fine of $200.00. The imposition of the sentence was suspended and the appellant was placed on probation for three (3) years subject to certain probationary conditions, which included:

“h. Pay his fine, if one be assessed, and all court costs including $100.00 attorney’s fees (Court appointed attorney) whether a fine be assessed or not, in one or several sums, and make restitution or reparation in any sum that the Court shall determine .
“$100 attorney fees payable $10 per month starting Aug. 1, 1975.
“h-1. Submit his person, place of residence and vehicle to search and seizure at any time of the day or night, with or without a search warrant whenever requested to do so by the Probation Officer or any other law enforcement officer.”

It appears that at the time of the imposition of these conditions the appellant and his court-appointed counsel objected to these particular conditions but no appeal was taken at that time.

On November 3, 1975 the appellant filed a motion to modify conditions of probation asking that the two conditions be stricken from the order granting probation. A hearing on the motion was held on January 8,1976, and the court took the matter under advisement. On March 23, 1976 the court denied the motion, and on April 1, 1976 the appellant gave notice of appeal from the order refusing to alter or modify the conditions of probation.

We are confronted initially with the procedural question of whether an appeal lies from such an order.

Article V, § 5 of the Texas Constitution provides for the jurisdiction of the Court of Criminal Appeals as follows:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the state in all criminal cases of whatever grade, with such exceptions and under such regulations as may be prescribed by law.
“The Court of Criminal Appeals . shall have the power to issue the writ of habeas corpus, and under such regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction. . . .”

Under such constitutional provision, the Legislature has the power to make proper exceptions to the right of appeal in criminal cases and regulate the appellate jurisdiction of the Court of Criminal Appeals, see Walker v. State, 537 S.W.2d 36, 38 (Tex.Cr.App.1976); De Silva v. State, 98 Tex.Cr.R. 499, 267 S.W. 271 (1924), and also to provide which writs the court may issue to enforce its own jurisdiction. Walker v. State, supra.

Article 4.03, Vernon’s Ann.C.C.P., provides:

“The Court of Criminal Appeals shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases. This Article shall not be so construed as to embrace any case which has been appealed from any inferior court to the county court, the county criminal court, or county court at law, in which the fine imposed by the county court, the county criminal court or county court at law shall not exceed one hundred dollars.”

Article 4.04, Vernon’s Ann.C.C.P., provides:

“Sec. 1. In addition to the power and authority now vested in the Court of Criminal Appeals of the State of Texas, said court and each member thereof shall have, and is hereby given, power and authority to grant and issue and cause the issuance of writs of mandamus and certiorari agreeable to the principles of law regarding said writs, whenever in the judgment of said court or any member thereof the same should be necessary to enforce the jurisdiction of said court.”

In Walker v. State, supra, it is stated:

“It is clear from the above constitutional and statutory provisions that the Court of Criminal Appeals has appellate jurisdiction in all criminal cases in the State with the exception made by law in Article 4.03, supra, relating to cases originating in the Justice of the Peace and Municipal Courts and tried de novo in a County Court where the fine then assessed is $100.00 or less. Bridges v. State, 423 S.W.2d 931 (Tex.Cr.App.1968); Leggio v. State, 489 S.W.2d 622 (Tex.Cr. App.1973). See also Article 4.03, supra, note # 7, and cases there cited.
“It is also clear from the constitutional provisions that the Court of Criminal Appeals and the Judges thereof have general authority to issue the writ of habeas corpus. Further, it may, as prescribed by law, issue such writs as may be necessary to enforce its own general jurisdiction. See Article 4.04, supra. See also State ex rel. Smith v. Blackwell, 500 S.W.2d 97 (Tex.Cr.App.1973); Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App.1973). The right of the court to issue writs, other than habeas corpus, is thus limited.”

Further, it is established by statute that the Court of Criminal Appeals may review bond forfeiture in criminal cases by appeal or writ of error from a final judgment forfeiting the bail bond. See Articles 44.42, 44.43, 44.44, Vernon’s Ann.C.C.P.; Walker v. State, supra; Glenn v. State, 155 Tex. Cr.R. 498, 236 S.W.2d 809 (1951); Kubish v. State, 128 Tex.Cr.R. 666, 84 S.W.2d 480 (1935); Hodges v. State, 73 Tex.Cr.R. 638, 165 S.W. 607 (1913); Jeter v. State, 86 Tex. 555, 26 S.W. 49 (1894); Swanson v. State, 169 Tex.Cr.R. 390, 334 S.W.2d 179 (1960).

The Court of Criminal Appeals will not exceed its jurisdiction as stated in 15 Tex.Jur.2d, Courts, § 23, p. 445:

. . When a proceeding from which an appeal is attempted comes within none of the statutory or constitutional provisions conferring jurisdiction, the court will not exercise authority .

We find neither constitutional nor statutory authority which would confer jurisdiction on this court to hear an appeal from an order entered pursuant to Article 42.12, § 6, supra (footnote # 1), altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions. It must be remembered that this is not an appeal from an order granting probation, cf. Article 42.04, Vernon’s Ann.C.C.P., nor is it an appeal from an order revoking probation. Article 42.12, § 8, Vernon’s Ann.C.C.P. We conclude that this court lacks the authority to entertain a direct appeal from the order entered. See and cf. Walker v. State, supra; Hardin v. State, 157 Tex.Cr.R. 283, 248 S.W.2d 487 (1952); Morgan v. State, 135 Tex.Cr.R. 76, 117 S.W.2d 76 (1938); Griffin v. State, 29 S.W.2d 349, 350 (Tex.Cr.App.1930). See also Bretz v. State, 508 S.W.2d 97 (Tex.Cr.App.1974); Swanson v. State, supra.

Although the purported appellant has characterized the case as an appeal, he prays, by supplemental brief, that if this court decides that no appeal lies then the proceedings be considered as an application for writ of habeas corpus. He cites Ex parte Giles, 502 S.W.2d 774 (Tex.Cr.App. 1973), where the court was asked to issue a writ of mandamus which was beyond its jurisdiction since its jurisdiction was not endangered but where the court considered the pleadings as an application for writ of habeas corpus. If the facts raise a proper habeas corpus issue, then the proceedings should be considered as a habeas corpus proceeding since to dismiss the appeal and require a new and separate habeas corpus application would require a useless thing. See Rice v. State, 548 S.W.2d 725 (Tex.Cr. App.1977); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972).

We conclude that the facts raise a proper habeas corpus issue and fall within our habeas corpus jurisdiction. See Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.1976).

“The writ of habeas corpus is intended to be applicable to all . . . cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” Article 11.23, Vernon’s Ann.C.C.P. (Emphasis added.)

Article 11.22, Vernon’s Ann.C.C.P., defines “restraint” as:

“. . . the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right.” (Emphasis added.)

We conclude that the imposition of conditions of probation that contain unconstitutional infringements of freedom of action constitutes a “restraint” within the scope of habeas corpus relief. See Ex parte Guzman, 551 S.W.2d 387 (Tex.Cr.App.1977) (Concurring Opinion). Therefore, we will address appellant’s constitutional arguments on the merits.

Appellant challenges the constitutionality of the Texas recoupment scheme which grants the trial court discretion to require, as a condition of probation, that a convicted defendant repay the county for providing him with court-appointed counsel. Appellant argues that the plan violates the due process clauses of the United States and Texas Constitutions; that it violates the equal protection clauses of the United States and Texas Constitutions by imposing harsher sanctions on appellant for not paying for his appointed counsel than are imposed on those persons who fail to pay their private attorneys; and finally, that so charging an indigent defendant interferes with the exercise of his right to counsel.

Appellant relies primarily on the authority of James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), and decisions from other jurisdictions, such as California and Michigan, which have invalidated particular recoupment schemes. He attempts to distinguish the more recent decision of the United States Supreme Court in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), which upheld the Oregon recoupment plan. An examination of the Texas statutes and our interpretive decisions in the context of Fuller v. Oregon, supra, and James v. Strange, supra, convinces us that the Texas recoupment plan is constitutional.

James v. Strange, supra, concerned a Kansas recoupment statute that allowed the State to recover, in subsequent civil proceedings, legal defense fees for indigent defendants. The Court invalidated the Kansas statute for its deficiencies in three areas: (1) unavailability to the defendant of exemptions provided for other judgment debtors by the Kansas Code of Civil Procedure; (2) without the exemptions, a defendant was subject to wage garnishment and was thus deprived of continuing means to support himself and his family; and (3) the statute provided for recoupment regardless of whether the indigent defendant was acquitted or convicted. Justice Powell noted that “[i]t is thus apparent that state recoupment laws and procedures differ significantly . . . Given the wide differences in the features of these statutes, any broadside pronouncement on their general validity would be inappropriate.” 407 U.S. at p. 133, 92 S.Ct. at p. 2030. We believe the Texas recoupment plan differs significantly from the Kansas statute and is similar to the Oregon statute more recently upheld in Fuller v. Oregon, supra.

The Court in Fuller held that the Oregon statute, which provided the opportunity for a convicted defendant to show that legal costs would impose manifest hardship, did not violate the equal protection clause. The legislative decision not to impose repayment obligations on defendants who are not convicted or whose convictions are reversed was held to be an objectively rational one. Further, the Court held that the statute did not infringe on a defendant’s right to counsel.

As the State in the case at bar points out, the constitutionality of the Oregon statute rested on several conditions. An examination of the Texas scheme reveals that it also satisfies these conditions. First, only a convicted defendant in Oregon may be ordered to pay court costs. Similarly, Article 42.12, §§ 3, 3a and 6, and Article 1018, Vernon’s Ann.C.C.P., impose liability for payment of costs only on a convicted defendant. Persons who are acquitted, whose trials end in mistrial or are dismissed and those whose convictions are overturned on appeal are not liable for costs in Texas.

Second, under the Oregon plan a convicted defendant cannot be forced to pay court costs unless he is or will be able to do so. Texas Article 1018, supra, imposes, as a matter of law, a charge on a convicted defendant for court costs and fees. Article 42.12(6)(h), Vernon’s Ann.C.C.P., allows a court to impose as a condition of probation the requirement that a defendant “pay ... all court costs and make restitution or reparation in any sum that the court shall determine.” However, repeated decisions of this court have made it clear that probation may not be revoked for failure to pay these costs unless the State shows that the probationer was able to make such payments and that his failure to do so was intentional. See, e.g., Herrington v. State, 534 S.W.2d 331 (Tex.Cr.App.1976); Denton v. State, 511 S.W.2d 311 (Tex.Cr.App.1974); Szczeck v. State, 490 S.W.2d 576 (Tex.Cr.App.1973). A recent amendment to Article 42.12, § 8, Vernon’s Ann.C.C.P., now makes available to a probationer an affirmative defense if he can establish that he is unable to repay compensation paid to appointed counsel and thus modifies prior case law. The result in Texas was and is consistent with the second condition stated in Fuller.

Third, a convicted person in Oregon may petition the court for remission of costs or of any unpaid portion thereof. While Texas law does not expressly authorize remission of costs, Article 42.12, supra, does allow the probationer to petition the court to modify the conditions of probation. This provides an opportunity for a probationer who is financially unable to pay costs to call his hardship to the court’s attention and to have this condition modified or eliminated.

Finally, no convicted person in Oregon may be held in contempt for failure to repay if his default was not due to an intentional refusal to obey the court’s order or to a failure to make a good faith effort to pay.

As discussed above, revocation for a probationer’s failure to repay compensation for appointed counsel, costs, etc., is improper if the probationer establishes that he is unable to make such payments.

We feel that the reasoning in Fuller adequately answers appellant’s arguments concerning the constitutionality of the Texas recoupment plan. Therefore, appellant’s first ground of error is overruled.

Appellant next argues that the trial court erred in denying his motion to remove the search and seizure condition of probation because it violates the United States and Texas Constitutions. We conclude that the condition in the instant case, identical to the one in Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976), is overbroad and does violate the probationer’s rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, § 9 of the Texas Constitution. A probationer, like a parolee, has the right to enjoy a significant degree of privacy. Tamez v. State, supra; United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); Morrissey v. Brewer, 408 U.S. 471, 92 5.Ct. 2593, 33 L.Ed.2d 484 (1972).

Habeas corpus relief is hereby partially granted; and it is ordered that the unconstitutional search and seizure condition be deleted from the terms and conditions of appellant’s probation.

It is so ordered.

ODOM, Judge,

concurring.

I concur in the conclusion of the majority that appellate jurisdiction does not lie in this case, and that habeas corpus jurisdiction does lie. I also share the concern expressed by the dissent that some may misconstrue the majority opinion as creating an “expansion of our habeas corpus jurisdiction [that] will open a ‘Pandora’s box’ of frivolous claims.” I do not, however, find the majority’s conclusion “that the imposition of conditions of probation that contain unconstitutional infringements of freedom of action constitutes a ‘restraint’ within the scope of habeas corpus relief” creates such a broad-reaching expansion as contended by the dissent. The majority find jurisdiction on appellant’s tenable claims of unconstitutional conditions of probation, and do not open the door for all attacks that may be conceived, even if frivolous or not of constitutional magnitude.

It should be noted that habeas corpus may not be used as a substitute for appeal. Mixon v. State, Tex.Cr.App., 365 S.W.2d 364; Ex parte Eldridge, 154 Tex.Cr.R. 50, 224 S.W.2d 262; Ex parte Loper, 153 Tex. Cr.R. 240, 219 S.W.2d 81. The proper means to challenge the validity of a condition of probation imposed at conviction is by appeal from that conviction. This Court will consider such claims at that time. Morales v. State, Tex.Cr.App., 541 S.W.2d 443; Flores v. State, Tex.Cr.App., 513 S.W.2d 66; Faugh v. State, Tex.Cr.App., 481 S.W.2d 412; Milligan v. State, Tex.Cr. App., 465 S.W.2d 157. Only in special circumstances should habeas corpus be available to challenge the validity of a condition of probation imposed at conviction.

In the case at bar petitioner was convicted and placed on probation on July 7, 1975. The search and seizure condition of his probation (set out in the majority opinion) was imposed at that time. Tamez v. State, Tex. Cr.App., 534 S.W.2d 686, was decided on March 17, 1976, and held a probationary condition such as the one here was unreasonable and unenforceable. Because Tamez was decided after appellant’s probation condition was imposed, he did not have benefit of that holding when he could have raised the issue on appeal. Petitioner should not be faulted for failing to anticipate this Court’s decision in Tamez v. State, supra. Ex parte Taylor, Tex.Cr.App., 484 S.W.2d 748, 752; Ex parte Casarez, Tex.Cr.App., 508 S.W.2d 620, 622. For this reason I concur in the exercise of our habeas corpus jurisdiction in this case on the Tamez issue. Furthermore, with the case before us on this ground I concur in the decision to address the other issue raised by petitioner as well. Once jurisdiction is found, no purpose would be served by declining to decide the validity of the other challenged probation condition, particularly in light of the significance of the issue.

I therefore concur in the exercise of our habeas corpus jurisdiction to hear challenges to conditions of probation under the facts of this case.

DOUGLAS, Judge,

dissenting.

This Court does not have jurisdiction to strike a condition of probation where there has been no appeal from the judgment of the original trial and where there has been no motion to revoke probation. After the time for appeal had expired, Basaldua asked the trial judge to delete a condition of probation, and he refused. From the refusal we have this purported appeal.

We do not have jurisdiction. Questions of jurisdiction are fundamentally questions of power. A court has no power to act where jurisdiction does not exist.

Habeas corpus jurisdiction is conferred on this Court by the Texas Constitution and by the Code of Criminal Procedure. Article 5, Sec. 5 of the Constitution provides in part:

“The Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and shall under regulations as may be prescribed by law, issue such writs as may be necessary to enforce its own jurisdiction
Article 11.23, V.A.C.C.P., provides:
“The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law.” (Emphasis added.)

The majority concludes that these provisions authorize Basaldua’s collateral attack upon the search and seizure condition of probation. To the contrary, the statute expressly authorizes jurisdiction only where the applicant is in custody or under arrest. See Ex parte Guzman, 551 S.W.2d 387 (Tex. Cr.App.1977) (dissenting opinion).

The probationary condition in question requires that Basaldua “[sjubmit his person, place of residence and vehicle to search and seizure at any time of the day or night, with or without a search warrant whenever requested to do so by the Probation Officer or any other law enforcement officer.” The identical condition was declared constitutionally infirm in Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976).

However, the judgment in the instant case was entered on July 7, 1975, prior to the decision in Tamez. Heretofore the search and seizure condition has not been used against Basaldua. Although such condition is unlawful, we cannot act on his habeas claim without presuming that the probation or other officers will fail to follow the law in the future and will use the condition against the applicant.

There has been no showing of a pending threat to Basaldua’s privacy. Under these circumstances, no restraint within the meaning of the statute exists, and, thus, the Court has no jurisdiction of his claim.

The majority relies on Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.1977); Ramirez v. State, 486 S.W.2d 373 (Tex.Cr.App.1972); and Taylor v. State, 482 S.W.2d 246 (Tex.Cr.App.1972), for the proposition that both of Basaldua’s claims raise proper habeas corpus issues, and that “the proceedings should be considered as a habeas corpus proceeding since to dismiss the appeal and require a new and separate habeas corpus application would require a useless thing.” Those cases are not in point. In each of those the appellate jurisdiction of this Court was properly invoked.

The Ramirez case involved a revocation of probation. He did not have and did not waive counsel in the original trial. The Taylor case did not permit a collateral attack on the original conviction. In the Rice case the State conceded that jeopardy attached to a prior conviction. On appeal this Court set a void judgment aside. In those cases we were confronted with issues which could properly be raised by habeas corpus. The Court disposed of those issues in the interest of judicial economy.

In the instant case this Court has no appellate jurisdiction. Further, in those other cases the facts did raise a proper habeas claim and would invoke the Court’s habeas corpus jurisdiction. In the present case, however, Basaldua’s Fourth Amendment claim is not properly within our habe-as corpus jurisdiction for the reasons previously stated.

Today’s holding represents an unwarranted expansion of our habeas corpus jurisdiction and will open a “Pandora’s box” of frivolous claims. Under the majority’s reasoning, future probationers can collaterally attack probation orders by challenging any conditions of probation, statutory or otherwise, which present no real threat of confinement or restraint. Consider, for example, the many probationers who will now probably file for habeas corpus relief contending that conditions which prohibit them from associating with persons of “harmful character” are unconstitutionally vague.

Even assuming that we have jurisdiction of the Fourth Amendment claim, we should not issue a declaratory judgment and grant the relief sought when there is no showing of a pending threat to Basaldua’s privacy. If the probationary condition is used against him in the future, and his probation is revoked, he can challenge it then on appeal.

A major constitutional revision has been proposed to alleviate the workload of this Court. The majority is aggravating the situation by passing on issues such as this. As the Presiding Judge and author of the majority opinion stated in a similar context:

“. . . Since the present information will therefore not likely be used, I see no necessity for this Court, with the heaviest case load of any State appellate court in this nation, to write upon the sufficiency of an information that does not control the proper disposition of the case before this Court . . . ” Bullet v. State, 538 S.W.2d 785, 787 (Tex.Cr.App.1976).

If the majority is going to deal in the realm of possibilities, it is possible or even probable that one might appeal a refusal of a trial judge to act upon a motion to suppress evidence because it was obtained as a result of an illegal search. There would have been more restraint in that case than in the present case. In Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967), the writer of the majority opinion wrote for the Court that a trial judge did not have to pass upon the motion to suppress evidence but could consider the question during the trial. If there had been no other evidence except that obtained by the search, Bosley would have been under more of a restraint than Basaldua is because there has been no allegation that Basaldua has been or is about to be illegally searched.

Again in the realm of possibility, suppose that one learns that a search warrant has been issued for his building, and he seeks to have it vacated, but a judge will not do so. Under the opinion by the majority, he could appeal that decision because he is under restraint and an officer may violate his right to privacy.

Any time one has been charged for an offense and arrested, he is under some sort of restraint. However, this Court does not permit an attack upon his detention by ha-beas corpus unless the statute under which he is charged is void. Ex parte Brannon, 163 Tex.Cr.R. 311, 290 S.W.2d 914 (1956); Ex parte Merriell, 163 Tex.Cr.R. 534, 294 S.W.2d 400 (1956). There has to be a conviction and an appeal before his allegation of illegal detention is considered. There should not be a different rule in the present case. If his probation is revoked, he can appeal.

Since Tamez v. State, supra, has been decided, it is the law of this State, and Basaldua does not have to submit to the search. From his application for habeas corpus he knows that he does not have to submit to a search. He may inform any peace officer that he refuses to consent and that provision of probation may not be used against him. No judge confronted with a motion to revoke because a probationer refused to consent to search would revoke probation after being cited to Tamez, supra. If evidence is obtained as a result of an illegal search, it can be reviewed as in any other case where this Court has jurisdiction.

This Court does not have jurisdiction to pass upon this question, and it should so hold.

ROBERTS, J., joins in this dissent.

      . Article 42.12, § 6, Vernon’s Ann.C.C.P., provides in part:
      “The court having jurisdiction of the case shall determine the terms and conditions of probation and may, at any time, during the period of probation alter or modify the conditions . . ..”

      . It has been said that the original jurisdiction of this court to issue writs of habeas corpus is unlimited. State v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892, 894 (1961). See also Article 11.05, Vernon’s Ann.C.C.P.

      . See Articles 42.12 and 1018, Vernon’s Ann.C. C.P. On August 29, 1977 the amendment to ■ § 6, Article 42.12, Vernon’s Ann.C.C.P., became effective (Acts 1977, 65th Leg., ch. 388, p. 1058). This amendment expressly provides that one of the suggested conditions of probation may be:
      “O') Reimburse the county in which the prosecution was instituted for compensation paid to appointed counsel for defending him in the case, if counsel was appointed.”
      Thus, the reimbursement for appointed counsel will not have to be included as court costs. This amendment has no bearing on the issue to be decided here.

      . Justice Powell described the operation of the statute in this fashion:
      “When the State provides an indigent defendant with counsel or other legal services, the defendant becomes obligated to the State for the amount expended in his behalf. Within 30 days of the expenditure, the defendant is notified of his debt and given 60 days to repay it. If the sum remains unpaid after the 60-day period, a judgment is docketed against defendant for the unpaid amount . . . The indigent defendant is not, however, accorded any of the exemptions provided by that code [the Kansas Code of Civil Procedure] for other judgment debtors except the homestead exemption. . . . ” [Footnotes from Justice Powell’s opinion are omitted.] 407 U.S. at pp. 130-131, 92 S.Ct. at p. 2029.

      . Article 42.12, § 8(c), now reads:
      “(c) In a probation revocation hearing at which it is alleged that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.” (Acts 1977, 65th Leg., ch. 388, p. 1058 [S.B. 61], effective August 29, 1977)

      . See footnote # 5.


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Paul David QUINN, Appellant, v. The STATE of Texas, Appellee.
    No. 53657.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.

      Elaine Brady, Court appointed on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Jack Bodiford, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder. The jury assessed the appellant’s punishment at 99 years.

The appellant’s contentions are numerous, but we abate the appeal.

The appellant filed a motion to suppress his oral and written confessions. The trial judge held a pretrial hearing in order to comply with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), and Article 38.22, Vernon’s Ann.C.C.P.

In Hester v. State, 535 S.W.2d 354, 356 (Tex.Cr.App.1976), we stated:

“It is the trial court that is charged with finding the facts and applying the law. Art. 38.22, Sec. 2, V.A.C.C.P., requires the trial court to enter an order stating its findings. On appeal challenges to the trial court’s ruling generally should be directed to whether the trial court abused its discretion in one of its findings of fact or to whether the trial court properly applied the law to those facts found by it. This Court is not the proper forum for the initial fact-finding process, but should restrict its review of the facts to any issues raised in challenge to the trial court’s findings. Without adequate findings of fact this Court is much handicapped in its review upon appeal of the trial court’s ruling, because it lacks an adequate record of the basis for that ruling. One purpose for requiring the trial court to ‘enter an order stating [its] findings’ (Art. 38.22, Sec. 2, V.A.C.C.P.) is to make the record reflect, for the parties and for possible appellate review, the basis for the ruling.”

In the present case, the trial judge’s order recites four findings of fact. Three of the four findings of fact were not in dispute at the hearing. The fourth finding is, at best, conclusory. The order does not recite findings in detail, nor does it resolve numerous disputed fact issues upon which the appellant’s grounds of error are based. It does not assist us in determining the sufficiency of the evidence to support whatever unstated findings of fact were made by the trial judge. We are unable to review the appellant’s grounds of error which necessarily rely upon the factual findings from the hearing.

Article 38.22, Section 2, Vernon’s Ann.C. C.P., requires an order reciting the trial judge’s findings on relevant disputed fact „ issues. See also Jackson v. Denno, supra. The disputed fact issues are apparent from the parties’ briefs filed in this case. The trial judge, of course, may also review the transcription of the testimony upon which the original order was entered to assist his recollection of the findings previously made.

Therefore, we abate the appeal and direct the trial judge to reduce to writing his findings on the disputed fact issues surrounding the taking of appellant’s oral and written confessions, and to file with this Court his findings.

The appeal is abated.

      . These disputed fact issues include, but are not limited to, whether: (1) the appellant, prior to making the oral and written confessions, asserted his right to counsel; (2) the appellant asserted his right to remain silent; (3) the appellant was physically beaten at various times and by various officers during the evening in question; (4) the appellant was taken to an interrogation room and questioned prior to or after the search of his residence; (5) the witness Heiser had informed the police of the location of the pistol prior to the search of appellant’s residence; and (6) the officers had seized the appellant’s keys upon his arrest. These fact issues, among others, relate to the admissibility of the oral and written confession allegedly given by the appellant. The trial judge’s conclusory findings of fact and conclusions of law are not sufficient.


author: DALLY, Commissioner.

text:
    Waddell FRANK, Appellant, v. The STATE of Texas, Appellee.
    No. 53800.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.

      Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus, Gregory Eugene Lucia, Asst. Dist. At-tys., Houston, and Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of aggravated robbery; punishment is imprisonment for 8 years.

Appellant complains of the indictment, of the court’s charge, and of the refusal of the court to grant a new trial.

Appellant contends that the court erred in refusing to grant a new trial because the prosecutor did not disclose to the appellant or his counsel evidence obtained during trial which it is alleged was exculpatory. Evidence adduced at the hearing on appellant’s amended motion for new trial showed that Steve Stone, an eyewitness to the robbery, was brought into the courtroom during the trial and was unable to positively identify appellant. The prosecutor did not call Stone to testify and did not inform appellant of Stone’s failure to identify appellant. We conclude that the prosecution’s failure to do so did not constitute reversible error.

Appellant relies on Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App. 1972), and Ridyolph v. State, 503 S.W.2d 276 (Tex.Cr. App. 1974), as requiring the prosecutor to disclose the information in the instant case. In each of those cases, unlike this case, a motion was made by the defendant for the prosecution to disclose exculpatory evidence. In Crutcher, the conviction was reversed because the prosecutor did not disclose the fact that the complaining witness previously had given a description which conflicted with her identification of the defendant. In Ridyolph, the conviction was reversed because the prosecution failed to disclose the identity of a witness who would have testified unequivocally and favorably to the defendant regarding a hotly disputed, material issue. The facts of the instant case and the type of information which appellant claims was not disclosed are distinguishable from the facts of those cases.

Although not cited either by appellant or by the State, the more recent case of United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), gives the guidelines by which we may reach our decision. In that case the defendant urged that the trial court erred in failing to grant a new trial because the prosecution failed to disclose that the deceased had a prior criminal record which indicated his violent character, and that information was material to the defendant’s claim of self-defense in a murder case. In reversing the Court of Appeals and affirming the decision of the trial court, the Supreme Court analyzed the issue as follows:

“The question before us is whether the prosecutor’s failure to provide defense counsel with certain background information about Sewell, which would have tended to support the argument that respondent acted in self-defense, deprived her of a fair trial under the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215.
“The answer to the question depends on (1) a review of the facts, (2) the significance of the failure of defense counsel to request the material, and (3) the standard by which the prosecution’s failure to volunteer exculpatory material should be judged.”

The court went on to say that in cases such as the instant ease, in which no specific request for exculpatory material is made,

“. . . [T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial.
“The Court of Appeals appears to have assumed that the prosecutor has a constitutional obligation to disclose any information that might affect the jury’s verdict. That statement of a constitutional standard of materiality approaches the ‘sporting theory of justice’ which the Court expressly rejected in Brady. For a jury’s appraisal of a case ‘might’ be affected by an improper or trivial consideration as well as by evidence giving rise to a legitimate doubt on the issue of guilt. If everything that might influence a jury must be disclosed, the only way a prosecutor could discharge his constitutional duty would be to allow complete discovery of his files as a matter of routine practice.” (Footnote omitted.)

A review of the entire trial is necessary to determine whether the prosecution’s failure to disclose information deprived the defendant of a fair trial.

“. . . [I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.”

United States v. Agurs, 96 S.Ct. at 2401-02.

Applying the above test to the facts of the case at bar, we cannot say that the prosecution’s failure to disclose to appellant that Stone failed to identify him would have created a reasonable doubt about appellant’s guilt. In the instant case, not only did appellant not make a specific request that exculpatory material be disclosed, but the record does not show that the evidence which was withheld from appellant was material under United States v. Agurs, supra. Three eyewitnesses to the robbery, including the complaining witness, identified appellant as carrying a sub-machine gun and being one of a group of five people who participated in the robbery. Other eyewitnesses stated that appellant was not the man in question. At the hearing on the motion for new trial, the assistant district attorney who prosecuted the case testified that Stone would have been unable to testify one way or the other as to whether appellant was one of the robbers. Stone testified at the hearing that he was unable to state positively that appellant either was or was not.one of the robbers. Stone also testified that he was in the presence of the man identified by others as appellant for about five minutes, the great part of which he spent either with his back to the man or lying on the floor. He also testified that all he remembered of the man was that he was wearing a long red coat and carrying a sub-machine gun. Since the complaining witness while testifying referred several times to Stone as being present during the robbery, appellant is in no position to contend that he was unaware that Stone had been an eyewitness to the robbery. Given that there were both eyewitnesses who identified appellant and others who stated that appellant was not one of the five robbers, we do not see, viewing the record in its entirety, how Stone’s equivocal testimony would have cast a reasonable doubt upon appellant’s guilt. We reject the appellant’s argument that a different result is required because all of the defense witnesses were black whereas Stone and all of the witnesses who identified appellant, as well as all of the jurors, were white.

The prosecutor in the instant case neither presented a false picture of the facts nor actively suppressed evidence which might have exonerated appellant or been of material importance to his defense.

“Whether or not the prosecutor in a criminal case must disclose all evidence in his possession favorable to the accused to comply with due process depends on many factors, and a case by case judgment must often be made. It seems likely that many situations will arise in which the prosecutor can fairly keep to himself his knowledge of available testimony which he views as mistaken or false. But there are other circumstances in which a prosecutor must, or certainly should know that even testimony which he honestly disbelieves is of a type or from a source which in all probability would make it very persuasive to a fair minded jury.” (Footnote omitted.)

Means v. State, 429 S.W.2d 490 (Tex.Cr.App.1968). This case falls into the former category.

Appellant complains that the indictment is fundamentally defective in that it fails to show that the property defendant allegedly intended to obtain and maintain control over was the same property that constituted the subject matter of the theft mentioned in the indictment. The indictment, omitting the formal parts, alleges that appellant did:

“. . . while in the course of committing theft of money, owned by Lois Perkins, hereafter styled Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a Thompson sub-machine gun.”

The contention is without merit. The indictment plainly alleges that appellant had the intent to obtain and maintain control over “the property,” which necessarily refers to the antecedent “money.”

In six related grounds of error appellant complains that the court’s charge was erroneous in that it did not require the jury to find that the sub-machine gun used by appellant was a Thompson sub-machine gun as alleged, that it did not require the jury to find that Lois Perkins owned the money alleged as the subject of the theft, and that it did not require the jury to find that the act done by appellant was done while in the course of committing theft of money owned by Lois Perkins as alleged. Appellant made no objection to the charge. The portion of the charge of which appellant complains states:

“Therefore, if you believe from the evidence beyond a reasonable doubt that Lois Perkins was the owner of property, to wit, money, and that defendant Wad-dell Frank, in Harris County, Texas, on or about November 7, 1974, while in the course of committing theft from the said Lois Perkins, and with intent to obtain the said property, intentionally and knowingly threatened and placed the said Lois Perkins in fear of imminent bodily injury and death, and used or exhibited a deadly weapon, to wit, a sub-machine gun, you will find the defendant guilty of aggravated robbery.”

Reading the charge as a whole, we cannot say there is any doubt that the jury was required to find that Lois Perkins owned the money on the date in question. Nor is it anything but absolutely plain that “the said property” which appellant is alleged to have intended to obtain and maintain control over is the “money” mentioned earlier in the charge and alleged in the indictment.

Appellant also asserts that the charge is erroneous because it did not require the jury to find that appellant used a “Thompson sub-machine gun” while committing the robbery, as alleged in the indictment, but instead required only a finding that he used a “sub-machine gun.” The needless use of the word “Thompson” being a descriptive averment of an essential element of the offense charged, it was incumbent upon the State to prove the same. Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977). Several witnesses testified that the gun was a Thompson sub-machine gun, and appellant could not successfully insist that there was a variance between the indictment and the proof. In the instant case, however, appellant is complaining of a variance between the indictment and the charge, not between the indictment and the proof. Since appellant did not object to the charge, he cannot now be heard to complain. Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976); Jackson v. State, 536 S.W.2d 371 (Tex.Cr.App.1976).

The judgment is affirmed.

Opinion approved by the Court.


author: DAVIS, Commissioner.

text:
    Nathan COTLAR, Appellant, v. The STATE of Texas, Appellee.
    No. 53802.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    Paul E. Licata and Marvin 0. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Robert A. Shults and Jim Leitner, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for resisting arrest. After the jury returned a verdict of guilty, the court assessed punishment at a fine of $250.00.

Appellant contends that the court erred “in refusing to allow appellant to develop the statutory defense of excessive force on the part of the arresting officer by ruling inadmissible any evidence of appellant’s treatment at the hospital immediately following his arrest including pictures of appellant’s injuries taken the day after arrest.”

The State urges that this ground of error is multifarious and therefore presents nothing for review. While Art. 40.09, Sec. 9 provides that the brief “shall set forth separately each ground of error . . it further requires that a ground of error shall be reviewed if this Court “can identify and understand such point of objection.”

Appellant’s defense was bottomed on V.T.C.A. Penal Code, Sec. 9.31(c), which provides:

“(c) The use of force to resist an arrest or search is justified:
“(1) if, before the actor offers any resistance, the peace officer uses or attempts to use greater force than necessary to make the arrest or search; and
“(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s use or attempted use of greater force than necessary.”

The court instructed the jury in the law on the use of force in resisting an arrest in accordance with Sec. 9.31(c), supra.

It appears undisputed that appellant, a medical doctor, was a passenger in a car driven by his wife just prior to his arrest on February 13,1976. Appellant testified that he was en route to the hospital to “check on” a patient upon whom he had operated that morning. The ear was stopped by Houston Police Officers Watson and Gosch for running a red light. Upon the vehicle being stopped, appellant went to the rear of the vehicle, where he met the officers. After some discussion, it was determined that Mrs. Cotlar did not have her driver’s license in her possession. From this point on there is a sharp divergence in the versions of the events which transpired.

Officer Watson testified that appellant told him several times that he was a doctor on the way to the hospital and he advised the appellant it would take only about five minutes to write the tickets. According to Watson, appellant “kept interrupting” when he tried to talk to Mrs. Cotlar and told his partner that “she had a fine example of someone to be teaching her her profession.” Watson advised appellant to be quiet “and let me finish writing these two tickets” or “he would be arrested for interfering with a police officer.” Appellant said, “let’s go and started pushing the door in on me.” Watson related that he was in a “squatting position by the door that was open in the car where his [appellant’s] wife was sitting” when appellant “started pushing the door in on me.” Appellant was told he was under arrest. Watson grabbed appellant’s right arm and Gosch grabbed the left arm. Appellant “was struggling violently trying to get away. Throwing his arms back and forth kicking at me.” After Watson asked his partner to call for assistance, appellant was handcuffed. Further testimony of the officer reflects that appellant continued to struggle and resist when he was placed in the police car. Watson specifically denied that he ever attempted to choke the appellant or that he had beaten his head against an iron pole.

The events that transpired on the occasion in question as related by appellant reflect that he was telling the police woman (Officer Gosch), a trainee, that she would be wise not to follow the tactics of this policeman (Officer Watson) when Watson “. turned from my wife, and very caustically stated that he could put me in jail if he wanted to.” Appellant stated that after he answered in a “very respectful” manner that he understood that he was a policeman and that “he could put me in jail,” Watson was “putting handcuffs on me.” Appellant related that these events ensued:

“Immediately afterwards, he had two arms, one across the front of my neck, the other over my chest. ... In the position that I was in, he began squeezing and choking me with his forearm and wrist. ... I was immediately in severe pain and short of breath, and I couldn’t breathe. . . . There was severe pressure with his wrist and forearm on my neck and throat in this position, and my head was hyperextended— that is bent very far back. ... he was pressing against my throat repeatedly. • • •”

Appellant further testified that Watson had beaten his head against an iron pole.

Appellant testified relative to the injuries received on the occasion in question and stated that he had pictures depicting these injuries. Counsel for appellant requested permission to set up a slide projector to show the pictures and the request was denied by the court.

Appellant’s bill of exception reflects that the slides would reflect appellant’s injuries and they would fairly and accurately portray the way appellant looked on the day following the incident in question. The court qualified the bill by noting that the evidence proffered was slides “and that there were no pictures offered.”

In Williams v. State, 461 S.W.2d 614, in holding that color motion pictures depicting the offense in question were admissible, this Court quoted from Moses, “Scientific Proof In Criminal Cases — A Texas Lawyer’s Guide,” Sec. 10.04, p. X-5:

“It is common knowledge that the predicate for introduction of a photograph requires proof of (1) its accuracy as a correct representation of the subject at a given time, and (2) its material relevance to a disputed issue. Regarding ordinary photographs, a witness is not required to have seen a photograph made to testify as to its correctness. Although the photographer may authenticate the photograph, his testimony is not mandatory. All that is required of a witness who observed the object or scene depicted with his naked eye is testimony that the photograph truly and accurately represents that object or scene. Like still photographs, motion pictures are admissible in criminal prosecutions where they are properly authenticated, relevant to the issues and not violative of the rules of evidence for the admissibility of photographs.” [Citations omitted.]

See also Housewright v. State, 154 Tex. Cr.R. 101, 225 S.W.2d 417; Alberti v. State, 501 S.W.2d 654; Martin v. State, Tex.Cr. App., 475 S.W.2d 265.

We hold that slides, like still photographs and motion pictures, are admissible when they are properly authenticated, relevant to the issue, and not violative of the rules of evidence for the admissibility of photographs.

Unlike Fields v. State, 500 S.W.2d 500, where this Court held that it could not pass upon the admissibility of color slides because they were not in the record, the slides in the instant case are a part of the bill and are in the record before us. Slides in the exhibit reflect bruises and abrasions to the head, knees, hands, side and under the chin of the person identified as appellant.

As heretofore noted, there was a sharp conflict in the testimony relative to the amount of force used by the officers in arresting appellant. The slides reflecting bruises and abrasions on appellant constituted relevant evidence on this issue. We find that the court was in error in denying the admission into evidence of slides depicting appellant’s injuries the day following the arrest.

The judgment is reversed and the cause remanded.

. Opinion approved by the Court.

      . Unlike still photographs, which can generally be viewed by the court while the jury is in the box before they are admitted into evidence, moving pictures and slides should be viewed by the court out of the presence of the jury before their admissibility is determined.

      . In the event of retrial, the many slides in the exhibit should be reviewed to determine relevancy before they are admitted since we find one slide of a baby and others which may be repetitious in depicting injuries.


author: DOUGLAS, Judge.

text:
    Curtis WHITE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56853.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    Larry E. Meyer, Houston, on appeal only, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for robbery by assault as denounced by Art. 1408, Vernon’s Ann.P.C. (1925). The trial was before the court on a plea of guilty. The punishment is imprisonment for five (5) years.

An examination of the felony information filed in this case reveals that it is fundamentally defective for failure to allege the ownership of the property taken. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1974); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App.1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Pittman v. State, 532 S.W.2d 97 (Tex.Cr.App.1976).

The judgment is reversed and prosecution under the instant information is ordered dismissed.


text:
    Curtis WHITE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 56854.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    Larry E. Meyer, Houston, on appeal only, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for robbery by assault as denounced by Art. 1408, Vernon’s Ann.P.C. (1925). The trial was before the court on a plea of guilty. The punishment is imprisonment for five (5) years.

An examination of the felony information filed in this case reveals that it is fundamentally defective for failure to allege the ownership of the property taken. Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1974); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); French v. State, 531 S.W.2d 613 (Tex.Cr.App.1975); Arline v. State, 529 S.W.2d 73 (Tex.Cr.App.1975); Ainsworth v. State, 531 S.W.2d 613 (Tex.Cr. App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Pittman v. State, 532 S.W.2d 97 (Tex.Cr.App.1976).

The judgment is reversed and prosecution under the instant information is ordered dismissed.


author: EVANS, Justice.

text:
    NEW ULM STATE BANK, Appellant, v. Robert B. BROWN et al., Appellees.
    No. 16902.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 4, 1977.

      Conner, Odom & Clover, C. E. Clover, Jr., Sealy, for appellant.
    Kamp, Pope & Shoemake, T. Turner Pope, III, Houston, for appellees Robert B. Brown and Hayden Rabón d/b/a B & R Cattle Co.
    Kelberg, Mobley, Lockett & Weil, Matthew A. Rosenstein, Corpus Christi, for ap-pellee State Nat. Bank of Robstown.
   EVANS, Justice.

This is a bank collection case involving documentary drafts.

Kenneth Richardson, doing business as R & R Farms, Inc. and Robert B. Brown and Hayden Rabón, doing business as B & R Cattle Company were cattle traders, having bought and sold each other’s cattle since 1965. Each time Richardson bought cattle from Brown, he would instruct Brown to draw a draft on New Ulm State Bank, where R & R Farms, Inc. maintained its account. Brown would cause a “bill of sale” draft to be prepared, naming B & R Cattle Company as the payee, for the amount of the purchase price of the cattle. B & R Cattle Company would then deposit the draft with State National Bank of Robstown, where it would receive immediate credit to its account, and State National Bank of Robstown would transfer the draft to New Ulm State Bank for payment or dishonor. There were eleven drafts transferred by State National Bank of Robstown to New Ulm State Bank in connection with the transactions in question. A history of these drafts is indicated by the following schedule:

EXHIBIT NUMBER DATE OF DRAFT AMOUNT DATE REC’D BY NEW ULM BANK DATE RETURNED DAYS HELD AFTER PRESENTMENT
Px 1 7/ 5/74 $ 6,613.47 7/ 8/74 7/26/74 18
Px 2 7/16/74 5,705.33 7/17/74 7/26/74 9
Px 3 7/19/74 10,567.90 7/20/74 7/26/74 6
Px 4 7/23/74 6,600.15 7/24/74 7/26/74 2
Px 5 7/26/74 6,697.57 7/27/74 8/ 6/74 10
Px 6 7/29/74 13,529.04 7/31/74 8/ 6/74 6
Px 7 7/30/74 11,131.03 8/ 2/74 8/ 6/74 4
Px 8 7/29/74 6,613.47 7/31/74 8/ 6/74 6
Px 9 7/29/74 5,705.33 7/31/74 8/ 6/74 6
Px 10 7/29/74 10,567.90 7/31/74 8/ 6/74 6
Px 11 7/29/74 6,600.15 7/31/74 8/ 6/74 6

The testimony shows that the drafts marked Exhibits 1 through 4 were returned to State National Bank of Robstown by New Ulm State Bank with the stamped notation “refer to maker”. Upon Richardson’s representation that the four drafts would be honored if they were re-presented, B & R Cattle Company caused four new drafts to be prepared, shown as Exhibits 8 through 11, which he deposited with State National Bank of Robstown, and which were then transferred by that bank to New Ulm State Bank. All of the exhibits marked Plaintiff’s Exhibits 5 through 11 were subsequently returned to State National Bank of Robstown by New Ulm State Bank, on the dates indicated, with the stamped notation “no authority to pay”.

Mr. Charles Mewis, a Vice President and Cashier of New Ulm State Bank, and the bank officer responsible for handling Richardson’s checks and drafts, testified that Richardson was a good customer of the bank and that his account showed a high volume of outgoing and incoming drafts. Normally, Richardson appeared each day at the bank to examine the drafts which had been presented for payment against his account. He would customarily write a check for the amount of the draft, and upon his payment, the bank would turn over the draft to him. The bank would then apply the check against his account, and it would send a cashier’s check for the amount of the draft to the transferring bank. This transaction usually occurred on the day following the day when a draft was first presented to Richardson. Mr. Mewis testified that a draft would not have been honored unless Richardson first delivered his cheek to the bank in payment.

During the period of time that the eleven drafts in question were being handled by the bank, Richardson was in serious financial condition, a fact known to Mr. Mewis. Richardson had been given immediate credit by the bank for approximately $94,000.00 worth of drafts on cattle sales he had made in the State of Oklahoma. In July 1974, Mr. Mewis knew that those drafts were going to be returned unpaid, and he began to “capture” all deposits made to Richardson’s account, which he held for the benefit of New Ulm State Bank. Mr. Mewis testified that he did not transmit to State National Bank of Robstown any information concerning Richardson’s financial condition, and he conceded that he had not fairly represented to State National Bank of Robstown the extent of Richardson’s financial difficulties. He also testified that he had been given instructions by the President of New Ulm State Bank that he should try to keep Richardson in business and that he was following those instructions in his handling of the drafts in question.

“Q Didn’t Mr. Harris at one time give you instructions to try to keep Mr. Richardson in business?
A Yes, sir.
Q And weren’t you following those instructions when you kept these drafts beyond the time period when you should have sent them back or paid them?
A I was — yes. I was trying to keep Mr. Richardson in business.”

B & R Cattle Company brought this action against New Ulm State Bank, claiming that it had been damaged by reason of the bank’s failure to timely return the drafts in question to State National Bank of Robs-town. New Ulm State Bank filed a cross-action against Richardson and R & R Farms, Inc. and against State National Bank of Robstown. A cross-action was also filed by State National Bank of Robstown against New Ulm State Bank and B & R Cattle Co.

After a jury trial, the trial court instructed a verdict in favor of B & R Cattle Company against New Ulm State Bank for the sum of $60,844.49, being the aggregate face amount of the seven drafts in question, plus pre-judgment interest in the amount of $8,001.47 and for an additional sum of $5,000.00 as damages based upon the jury’s finding that New Ulm State Bank had acted in bad faith in failing to pay or return the drafts within the time provided by law. The trial court also decreed that State National Bank of Robstown was entitled to a preferential lien against the judgment rendered in favor of B & R Cattle Company and that New Ulm State Bank was entitled to judgment against Richardson and R & R Farms, Inc. All other claims for affirmative relief were denied.

This partial appeal, perfected by New Ulm State Bank, is from that portion of the judgment awarding B & R Cattle Company a recovery against New Ulm State Bank and establishing a preferential lien against the judgment in favor of State National Bank of Robstown. The other parties to the action have not perfected an appeal.

In its first seven points of error New Ulm State Bank complains that the trial court erred in instructing a verdict in favor of B & R Cattle Company, contending that the evidence raised fact issues for the jury on the question of whether the bank acted in a timely manner in returning the drafts.

In determining the nature of New Ulm’s responsibility in handling the drafts, it is necessary to examine their form and substance. All of the drafts are similar in form; plaintiff’s Exhibit No. 5, set forth below, being typical:

Each draft is payable “at sight”, constituting the instrument a “demand” item. Tex.Bus & Comm.Code Ann. § 3.108. Each designates B & R Cattle Co. as “payee” and both R & R Farms, Inc. and New Ulm State Bank as “drawees”. Accompanying each draft is a bill of sale for a specific number of livestock, constituting the item a “documentary draft” as defined in Tex.Bus. & Comm.Code Ann. § 4.104(6). Marfa National Bank v. Powell, 512 S.W.2d 356 (Tex.Civ. App.—El Paso 1974, writ ref’d n.r.e.).

The first theory of liability relied upon to support the trial court’s judgment is that New Ulm State Bank converted the drafts' in question under the provisions of Tex.Bus. & Comm.Code Ann. § 3.419:

“(a) An instrument is converted when
(1) a drawee to whom it is delivered for acceptance refuses to return it on demand; or
(2) any person to whom it is delivered for payment refuses on demand either to pay or to return it; or
(3) it is paid on a forged indorsement.
(b) In an action against a drawee under Subsection (a) the measure of the drawee’s liability is the face amount of the instrument. In any other action under Subsection (a) the measure of liability is presumed to be the face amount of the instrument.”

The Official Comment to Section 3.419 states that an action based upon that section of the Code is not an action on the instrument, but, rather, an action in tort for its conversion. It further explains that the “demand” for the return of the instrument may be implied under the circumstances or understood as a matter of custom, and that the term “refuses to return” is meant to cover any intentional failure to return the instrument.

The drafts in question, being demand instruments, were due and actionable upon presentation. Henry v. Roe, 83 Tex. 446,18 S.W. 806 (1892). The collection letter to New Ulm State Bank specifically instructed the bank not to hold the item after maturity or for the convenience of the payer. In view of the bank’s own admission that the drafts were held after demand for the purpose of assisting its customer, the trial court could have concluded, as a matter of law, that a demand was made for the return of each draft at the time of delivery and that there was an intentional failure by New Ulm State Bank to return the instrument. Thus the trial court’s judgment may be upheld upon the theory of conversion under Tex.Bus. & Comm.Code Ann. § 3.419.

The trial court’s judgment may also be sustained upon the theory that New Ulm State Bank became liable as a “payor” bank for the late return of the drafts under the provisions of Tex.Bus. & Comm.Code Ann. § 4.302 which provides:

“In the absence of a valid defense such as breach of a presentment warranty (Subsection (a) of Section 4.207), settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of
(1) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or
(2) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents.”

A “payor” bank is defined as “a bank by which an item is payable as drawn or accepted.” Tex.Bus. & Comm.Code Ann. § 4.105(2). The payor bank includes a “drawee” bank and also a bank “at which” an item is payable if the item constitutes an order on the bank to pay. See, Official Comment 2, § 4.105(2). An order to pay may be addressed to one or more persons jointly. Tex.Bus. & Comm.Code Ann. § 3.102(a)(2).

The drafts in question designate both R & R Farms, Inc. and New Ulm State Bank as drawees and the order to pay is addressed to them jointly. The trial court evidently determined that the New Ulm State Bank acted as a “payor” bank in handling the drafts, and all parties concur that the bank acted in that capacity. There being no evidence that New Ulm State Bank acted in a capacity other than a payor bank, its liability is measured by the provisions of Tex.Bus. & Comm.Code Ann. § 4.302.

Each draft in question constituted an order on New Ulm State Bank, as the drawee bank, to pay the face amount of the draft. Although the draft did not, of itself, operate as an assignment of funds in the bank’s hands available for payment, and did not subject the bank to liability under the instrument until acceptance, the bank did have the obligation to handle the draft in a timely manner. Tex.Bus. & Comm.Code Ann. § 3.409, Official Comment No. 2. Its liability for the late return of an item resulted from the responsibilities imposed upon it under the statute, and a recovery based upon its failure to perform its statutory duty was not dependent upon a showing that the instrument was enforceable against it. 2 Bender, Uniform Commercial Code Service, 7-31, § 7.15(2).

It is a contention of New Ulm State Bank that § 4.302 does not apply to the case at bar because the drafts in question were “documentary drafts”. In support of this contention the bank relies upon the decision in Marfa National Bank v. Powell, supra, indicating that documentary drafts are governed by the provisions of Tex.Bus. & Comm.Code Ann. § 5.112, and that a bank acting under that section may defer honor of the drafts until the close of the third banking day following receipt. Section 5.112 is applicable only to documentary drafts presented under a letter of credit, and, thus, is inapplicable to the drafts in question here. It also appears that the decision in the Marfa case was based upon a finding that the holder of the instrument consented to the bank’s deferment of action until the end of the third banking day following receipt, and the decision is further distinguishable on that ground.

Since subsection (1) of Tex.Bus. & Comm. Code Ann. § 4.302, applies to demand items other than documentary drafts, that section is inapplicable to the drafts in the case at bar. However, subsection (2) of Tex.Bus. & Comm.Code Ann. § 4.302 does apply to documentary drafts, and would be applicable here unless, as New Ulm State Bank contends, the drafts in question were not “properly payable” as that term is used in the Code. The term “properly payable” is defined in the Code to include “the availability of funds for payment at the time of decision to pay or dishonor.” Tex.Bus. & Comm.Code Ann. § 4.104(9). It is the contention of New Ulm State Bank that the evidence shows the funds on hand in its customer’s account were not sufficient to pay the drafts in question because they had been “frozen” to protect the bank against the return of the Oklahoma drafts.

There was evidence before the trial court from which it could have concluded, as a matter of law, that there were funds in the customer’s account available for payment of the drafts. Mr. Mewis testified:

“Q A hundred and eight thousand dollars is what you built up in Mr. Richardson’s account by deliberately not paying any drafts during that period of time?
A Or checks.
Q Or checks?
A Yes sir.
Q You did that to protect the New Ulm bank did you not?
A Yes, sir.
Q What did you do — why did you do it — so that you could debit the ninety-four thousand dollars that was coming back?
A Yes, sir.
Q And did you in fact debit that sum?
A Yes, sir.
Q On what day?
A On July 24th.
Q And that left a total amount in Mr. Richardson’s account of how much?
A He was sixteen hundred and seventy-eight dollars and sixty-two cents overdrawn.
Q Even then?
A Yes, sir.
Q Even after the four or five days that you kept the drafts from being paid?
A Yes, sir.
Q And that benefited the New Ulm bank did it not?
A Yes, sir.
Q And during that time though you did not call the Robstown bank and indicate what you were doing did you?
A No, sir.”

Thus the record shows that even though the bank for its own benefit “froze” its customer’s account, there was a balance on deposit in its customer’s account sufficient to pay each of the items being held. Furthermore, the insufficiency of the funds in the customer’s account would not have relieved the bank of its responsibility to timely return the items in question to the transferring bank. New Ulm State Bank does not contend that the drafts were not otherwise “properly payable” as drawn, and being designated as a joint drawee on the drafts, it had the statutory responsibility to return the drafts to its transferor, notwithstanding the condition of its customer’s account.

The Official Comment 2, Tex.Bus. & Comm.Code Ann. § 4.302, states that the time limits within which a payor bank must accept, pay or return a demand item, other than a documentary draft, are those prescribed under the provisions of § 4.301. Subsection (a) of § 4.301 is applicable to items other than documentary drafts, and therefore does not apply to the drafts in question. Subsection (b) of that section would evidently apply to the case at bar, but the Comment indicates that the section is applicable in cases where the payor bank is also the depository bank. A depository bank is defined as “the first bank to which an item is transferred for collection even though it is also the payor bank.” Tex.Bus. & Comm.Code Ann. § 4.105(1). In the case at bar New Ulm State Bank did not act as a depository bank within the Code’s definition, and therefore we must look elsewhere for applicable time limits.

In order to. determine whether a payor bank has made proper payment of an item it is appropriate to look not only to the facts of the particular case, but also to all appropriate sections of Articles 3 and 4 of the Code. See Official Comment, Tex.Bus. & Comm.Code Ann. § 4.203.

Under Tex.Bus. & Comm.Code Ann. § 4.501, Subchapter E, Collection of Documentary Drafts, it is provided that a bank taking a documentary draft for collection must present or send the draft and accompanying documents for presentment, and upon learning that the draft has not been paid or accepted in due course, the bank must seasonably notify its customer of such fact. An action is taken seasonably when it is taken “within a reasonable time.” Tex. Bus. & Comm.Code Ann. § 1.204.

A collecting bank taking proper action before its midnight deadline (i. e., midnight of the next banking day following the banking day of receipt of the item) acts seasonably, and a bank taking proper action within a reasonably longer time may be seasonable, but the bank has the burden of so establishing. Tex.Bus. & Comm.Code Ann. § 4.202. In the case at bar New Ulm State Bank held the drafts in question for periods of time well beyond its midnight deadline and did not provide any explanation for having done so, other than for the purpose of benefiting itself and the account of its customer. Therefore,, under the undisputed facts the trial court was justified in concluding, as a matter of law, that New Ulm State Bank failed to meet its affirmative burden of establishing that it had acted seasonably in the return of the drafts in question after the expiration of its midnight deadline. Wiley, Tate & Irby v. Peoples Bank and Trust Company, 438 F.2d 513, on remand 462 F.2d 179 (5th Cir.1972); Suttle Motor Corp. v. Citizens Bank of Poquoson, 216 Va. 568, 221 S.E.2d 784 (1976).

New Ulm State Bank further argues that even though it acted in the capacity of a payor bank, its liability should be ascertained under the provisions of Section 4.103(e) of the Code, which provides that the measure of damages for a bank’s failure to exercise ordinary care is the amount of the item reduced by an amount which could not have been realized by the exercise of ordinary care, plus any consequential damages, sustained, if the bank acted in bad faith. This same contention was advanced in Rock Island Auction Sales v. Empire Packing Co., 32 Ill.2d 269, 204 N.E.2d 721, 723 (1965). The Illinois Supreme Court there held that a payor bank’s liability should be determined under the provisions of Section 4.302, and that Section 4.103(e) was applicable only to “collecting banks’, defined by the Code as “any bank other than a payor bank.” Tex.Bus. & Comm. Code Ann. § 4.105. Explaining the legislative rationale for holding a payor bank accountable for the face amount of the item, the court said:

“The role of a payor bank in the collection process, on the other hand, is crucial. It knows whether or not the drawer has funds available to pay the item. The legislature could have considered that the failure of such a bank to meet its deadline is likely to be due to factors other than negligence, and that the relationship between a payor bank and its customer may so influence its conduct as to cause a conscious disregard of its statutory duty. The present case is illustrative. The defendant, in its position as a payor bank, deliberately aligned itself with its customer in order to protect that customer’s credit and consciously disregarded the duty imposed upon it. The statutory scheme emphasizes the importance of speed in the collection process. A legislative sanction designed to prevent conscious disregard of deadlines can not be characterized as arbitrary or unreasonable, nor can it be said to constitute a legislative encroachment on the functions of the judiciary.” (204 N.E.2d 723).

Upon concluding that New Ulm State Bank did not act timely in returning the drafts in question, the trial court properly entered judgment holding it accountable for the face amount of the drafts. The first seven points of error are overruled. The twelfth point of error in which it is contended that the damages should be reduced under the provisions of Article 4.103(e) is also overruled.

In its eighth, ninth and tenth points of error New Ulm State Bank contends that the trial court erred in not submitting issues to the jury with respect to the alleged negligence of B & R Cattle Company and State National Bank of Robstown in handling the items in question. These points are overruled. The liabilities created under the provisions of the Code are independent of those based upon theories of negligence. Bank of American Nat’l T. & S. Ass’n v. Security Pac. Nat’l Bank, 23 Cal.App.3d 638, 100 Cal.Rptr. 438 (1972); Pacific Products, Inc. v. Great Western Plywood, Ltd., 528 S.W.2d 286, 291 (Tex.Civ.App.—Fort Worth 1975, no writ); Tex.Bus. & Comm. Code Ann. § 1.103.

In its eleventh point of error New Ulm State Bank contends that the trial court erred in failing to submit an issue to the jury with respect to whether there was an implied consent by B & R Cattle Company to the deferment of notice of the items in question. This point is overruled. It is possible for the time requirements imposed by the provisions of the Code to be varied by agreement of the parties, § 4.103, or excused by circumstances beyond the bank’s control if it exercises due diligence. Tex. Bus. & Comm.Code Ann. § 3.511 and § 4.108. However, the record in the case at bar does not contain evidence from which it might be inferred that B & R Cattle Company agreed to the deferment of notice of dishonor, nor is there evidence indicating that the delay in returning the documents was a result of circumstances beyond the control of New Ulm State Bank. Rock Island Auction Sales v. Empire Packing Co., supra. On the contrary, the evidence shows that New Ulm State Bank intentionally delayed the return of the drafts in order to benefit its position and that of its customer. The jury findings of bad faith preclude any inference that New Ulm State Bank acted with appropriate diligence in the matter.

The remaining points of error pertain to the trial court’s award of damages based upon the jury’s finding of bad faith. The judgment of the trial court in this respect can not be sustained. The liability of New Ulm State Bank was established on the basis of strict liability imposed under the provisions of the Code. Sun River Cattie Co., Inc. v. Miners Bank of Montana, 164 Mont. 237, 521 P.2d 679 (1974). Since the Code specifically provided a measure of recovery, both for the conversion and the late return of the drafts in question, there is no basis for the imposition of the consequential damages based upon the jury’s finding of bad faith.

The trial court’s judgment is reversed and rendered to the extent of the judgment award of the sum of $5,000.00 based upon the jury’s finding of bad faith; in all other respects the judgment is affirmed.


author: JAMES, Justice.

text:
    Charles CORNISH et al., Appellants, v. Leonard O. YARBROUGH et ux., Appellees.
    No. 5737.
    Court of Civil Appeals of Texas, Waco.
    Sept. 8, 1977.

      Bernard C. Reeves, Fairfield, for appellants.
    JoAnn H. Means, Harris, Means & Means, Corsicana, for appellees.
   OPINION

JAMES, Justice.

This is a suit for reformation of a warranty deed on the ground of mutual mistake. Plaintiff-Appellees Leonard 0. Yarb-rough and wife brought this suit against Defendant-Appellants Clarence Jack Harris and wife and Charles Cornish and wife, to reform a warranty deed executed by the Yarbroughs to the Harrises because of the omission of a vendor’s lien occasioned by an error of the scrivener. The Yarbroughs further sued for title and possession of the subject property based upon their being purchasers of the property from a trustee’s sale concerning the omitted lien. The Defendant-Appellants (Harrises and Cornishes) filed a cross-action in trespass to try title concerning the subject property.

Trial was before the court (without a jury) which found in favor of the Plaintiff-Appellees, the Yarbroughs, from which the Defendants appeal. We affirm.

The subject property is a house and lot in the City of Corsicana, Navarro County, Texas. The common source of title is in Carl Ashworth and wife Lorene Ashworth. On February 19, 1973, the Yarbroughs purchased the property from the Ashworths by warranty deed, which deed recited two notes each secured by a vendor’s lien as follows: (1) one in the amount of $10,000.00 payable to Corsicana Federal Savings and Loan Association (hereinafter called “Corsi-cana Federal”) secured by a first vendor’s lien and further secured by a Deed of Trust from the Yarbroughs to L. B. Dawson, Trustee; (2) one in the amount of $2000.00 payable to the Ashworths secured by a second vendor’s lien, (hereinafter called “the Ashworth lien”), further secured by a Deed of Trust from the Yarbroughs to L. B. Dawson, Trustee. This deed from the Ash-worths to the Yarbroughs was filed for record in the Deed Records of Navarro County, Texas, on February 22, 1973; and the two Deeds of Trust from the Yarb-roughs to L. B. Dawson, Trustee, herein-above referred to, were also filed for record in the Deed of Trust Records of Navarro County, Texas, on February 22, 1973.

Thereafter, on June 8, 1973, the Yarb-roughs gave a third (mechanics’) lien on the property in the amount of $2700.00 for improvements which lien was assigned to Cor-sicana Federal and further secured by a Deed of Trust from the Yarbroughs to L. B. Dawson, Trustee, which was filed for record June 11, 1973. The Yarbroughs made their payments on all three notes at the office of Corsicana Federal.

About one year later, on July 26, 1974, the Yarbroughs conveyed the subject property to the Defendants Harris and wife by warranty deed. Plaintiffs testified that it was agreed by and between them and the Harrises that the Harrises would assume the Ashworth lien as well as the two liens held by Corsicana Federal, and that instructions were given that the deed be prepared so as to recite such assumptions. However, the deed as prepared by the scrivener recited that the Harrises assumed the two liens in favor of Corsicana Federal but omitted to recite that the Harrises assumed the Ashworth lien. The transaction was closed in the offices of Corsicana Federal, and no one present noticed the omission in the deed. On August 20, 1974, the Harrises made the payments then due on all three liens, that is, on the Ashworth lien as well as upon the two Corsicana Federal liens.

After the August 20, 1974, payments on the three notes by the Harrises as above mentioned, the Harrises quit paying on the Ashworth note, whereupon the Ashworths accelerated the maturity of said note and directed L. B. Dawson, the Trustee in the Deed of Trust (for the benefit of the Ash-worths), to proceed with a Trustee’s sale of the subject property. On February 4, 1975, the Trustee’s sale was held, at which the Yarbroughs purchased the property for the sum of $1912.87 cash and received a Trustee’s Deed conveying the property to them (the Yarbroughs) subject to the two liens held by Corsicana Federal. Meanwhile, pri- or to this Trustee’s sale the Defendants Cornish and wife had moved into possession of the subject property as tenants of the Harrises. Both the Harrises and the Cornishes were notified of the Trustee’s sale and of Plaintiffs’ claims to the property.

Then on February 27, 1975, the Harrises conveyed by warranty deed to the Cornishes the subject property, wherein it was recited that the Cornishes assumed “all indebtedness against the property.”

The trial court found that the Ashworth lien was omitted by mutual mistake in the deed from the Yarbroughs to the Harrises, and reformed such deed so as to include the Ashworth lien and thereby reflect the true agreement of the parties. The trial court further found that the Cornishes were not bona fide purchasers for value and that the doctrine of after-acquired title did not apply in favor of Defendants since the Harris-es had assumed the Ashworth lien under the reformed deed. Said judgment further awarded title and possession of the subject property to the Plaintiff-Appellees Yarb-rough and wife, and assessed the costs against Defendant-Appellants.

The trial court made findings of fact and conclusions of law, the parts pertinent to this appeal being as follows: that the deed of trust given by the Yarbroughs to secure the $2000.00 Ashworth note as part consideration for the subject real estate dated February 19, 1973, was duly filed and recorded; that on July 26, 1974, when the Yarbroughs conveyed the property to the Harrises, all of the parties understood and intended that the Ashworth note would be assumed by the purchasers (Harrises); that the Ashworth note was omitted by a scrivener’s error from the assumption clause of the deed from Yarbroughs to Harrises; that the Yarbroughs and Harrises were mutually mistaken as to the contents of said deed; that the foreclosure and Trustee’s sale of February 4, 1975 was valid and regular, and was legally sufficient to convey the paramount title then owned by the Ashworths to the Yarbroughs; that Charles Cornish accepted the deed from the Harris-es dated February 27,1975, with actual and constructive notice of the claims of the Yarbroughs; that the Deed of Trust from the Yarbroughs to L. B. Dawson, Trustee dated February 19, 1973, further securing the Ashworth note, at all times constituted notice to the Defendant Charles Cornish of the existence of the Ashworth lien as an encumbrance on the title of the subject property; that Defendant Cornish was not a bona fide purchaser for value because of the actual and constructive notice he had of the Ashworth lien; that the omission of the Ashworth lien in the deed from the Yarb-roughs to the Harrises by mutual mistake entitles Plaintiffs Yarbrough to a judgment for reformation of said deed so as to include the assumption of the Ashworth note; that the decree awarding reformation relates back to the date of the reformed instrument, so that the instrument is effective as to all primary parties and as to all third parties with notice from its original date according to all its terms and conditions as reformed; that the Trustee’s deed to the Yarbroughs dated February 4,1975, entitles Plaintiffs Yarbrough to title and possession of subject property; and the reformation of the deed from the Yarbroughs to the Har-rises precludes the application of the doctrine of after-acquired title to the facts of this case.

Appellants assert three points of error, to wit: (1) The trial court erred in allowing reformation of the deed (from the Yarb-roughs to the Harrises), because there is no evidence of mutual mistake concerning the omission of the Ashworth lien; (2) the trial court erred in failing to hold that the Yarb-roughs’ subsequent interest (by virtue of their purchase at Trustee’s sale) was automatically conveyed to the Harrises under the doctrine of after-acquired title; and (3) the trial court erred in holding that the Ashworth lien is enforceable against the Cornishes, because the Cornishes are bona fide purchasers for value. We overrule all of Appellants’ points of error and affirm the trial court’s judgment.

We revert to Appellants’ first point, that is, the contention that there is no evidence of mutual mistake. The evidence is virtually undisputed that the Ashworth lien was left out of the Yarbrough-to-Harris deed by mutual mistake. The Yarbroughs testified that it was definitely agreed between them and the Harrises that the Harrises would assume the Ashworth note and lien. Mr. Harris on cross-examination in effect admitted that they (the Harrises) agreed to assume the Ashworth note. Likewise, Mrs. Harris testified that “we agreed that we would buy the house for what was owed against the house. We would just assume their (Yarbrough’s) payments and pay what they were paying.”

Mrs. A. C. Barley, manager of Corsicana Federal, assisted the parties in closing the transaction. The transaction was closed in the offices of Corsicana Federal. Mrs. Barley testified that prior to the closing, Mrs. Harris requested of her (Mrs. Barley) to get the deed drawn up, that they (the Harrises) were going to “take over her brother’s place” and that they (the Harrises) were going to assume the indebtedness that was against it. Mrs. Barley further testified that while the Yarbroughs and Harrises were present at the closing, she looked at the deed (which had been sent over to her from an attorney’s office) and noticed that it (the deed) recited only one assumption, that being the $2700.00 note to Corsicana Federal. Noticing this, she excused herself and took the deed to a typewriter and added as an assumption the $10,000.00 note to Corsicana Federal; that she simply forgot the Ashworth note; that she knew the Ash-worth note should have been included; that if she had thought of it she would have also added the Ashworth note as an assumption.

Moreover, the passbook which was furnished the Yarbroughs by Corsicana Federal, and which was turned over to the Har-rises, included the record of payments of the $10,000.00 note to Corsicana Federal, and the $2,000.00 Ashworth note. The record of payments of the $2700.00 note was kept in a second passbook.

After the closing, on August 20, 1974, when the payments first fell due on all three notes, the Harrises made a payment on each of the three notes, including the Ashworth note. We are of the opinion that the evidence is overwhelmingly to the effect that the Yarbroughs and the Harris-es were laboring under a mutual mistake when they closed this transaction with the Ashworth note omitted as an assumption in the deed.

A mistake of fact, if mutual, is a well-settled ground for reformation of a written instrument; and the scrivener’s failure to embody the true agreement of the parties in a written instrument is such a mistake as to afford ground for reformation for mutual mistake. See Louviere v. Power (Waco CA 1965) 389 S.W.2d 333 at p. 335, NRE, and the cases therein cited.

Appellants’ second point of error contends that the Cornishes are entitled to title and possession of the subject property under the doctrine of after-acquired title; that when the Yarbroughs (subsequent to the time of their conveyance to the Harris-es) thereafter acquired title by the Trustee’s Deed of February 4, 1975, that such title automatically passed to the Harrises and thence to the Cornishes. We do not agree.

Here, the doctrine of after-acquired title does not apply, because mutual mistake having been established between the Yarbroughs and the Harrises, as herein-above discussed, such mutual mistake relates back to July 26, 1974, the date of the deed wherein the mutual mistake occasioned the omission of the Ashworth lien. See St. Paul Fire & Marine Ins. Co. v. Culwell (Eastland CA 1931) 45 S.W.2d 347, reversed on other grounds by the Commission of Appeals in 62 S.W.2d 100; Automobile Ins. Co. of Hartford, Connecticut v. United Electric Service Co. (Fort Worth CA 1955) 275 S.W..2d 833, NRE; 49 Tex.Jur.2d “Reformation of Instruments,” par. 70, p. 688. This being so, the warranty by the Yarbroughs never included the Ashworth lien. Since the paramount title represented by the Ashworth lien was excluded from the conveyance to the Harrises and never passed to the Harrises (or to the Cornishes by the subsequent conveyance), when the Ashworth lien was thereafter foreclosed and the Yarbroughs acquired title by virtue of the Trustee’s deed, title to the property then vested in the Yarbroughs. Stated differently, the deed as reformed did not warrant any title to the Harrises (or to the Cornishes) insofar as the Ashworth lien was concerned. Therefore when the Yarb-roughs subsequently acquired title to the property which derived from the Ashworth lien, such title did not pass from the Yarb-roughs to the Cornishes under the doctrine of after-acquired title.

A title subsequently acquired inures to the purchaser upon the theory that the grantor is estopped to claim a title which he has assumed to convey. See McKinnon v. Lane (Fort Worth CA 1955) 285 S.W.2d 269 at p. 273, NRE, and the cases therein cited. But such estoppel is restricted to the estate intended to be conveyed by the grant, and is not applied to a reserved or excepted estate. A warranty only refers to the interest conveyed, and the grantor will not be estopped to assert another interest in the land subsequently acquired. Talley v. Howsley (Tex.1943) 142 Tex. 81, 176 S.W.2d 158 at p. 160. That is to say, the estoppel does not apply to any interest after-acquired which was not purportedly granted. Clark v. Gauntt (Comm. App.1942) 138 Tex. 558, 161 S.W.2d 270 opinion adopted. The estoppel cannot operate to vest in the grantee a greater estate than the deed itself would have conveyed. Chace v. Gregg (Tex.1895) 88 Tex. 552, 32 S.W. 520.

Because of the above-stated rules of law as applied to the facts of the case at bar, we hold that the doctrine of after-acquired title has no application so as to inure to the benefit of Defendant-Appellants.

Lastly, Appellants contend that the Cornishes were bona fide purchasers for value, and for this reason the Ashworth lien is not enforceable against them. We overrule this contention. In the first place, the Cornishes were charged with constructive notice of the Ashworth lien, because it was described in the warranty deed from the Ashworths to the Yarbroughs, and in the deed of trust from the Yarbroughs to L. B. Dawson, Trustee, both of which instruments had been of record long prior to the time the Harrises and the Cornishes purchased the property.

“A purchaser is charged with and bound by every recital, reference and reservation contained in or fairly disclosed by any instrument which forms an essential link in the chain of title under which he claims.” Wessels v. Rio Bravo Oil Co. (Eastland CA 1952) 250 S.W.2d 668, writ refused; Abercrombie v. Bright (Eastland CA 1954) 271 S.W.2d 734, NEE, and the cases therein cited on p. 740.

Moreover, Mr. Cornish admitted on cross-examination that prior to the time he purchased the property from the Harrises, that he (Mr. Cornish) received letters from two different lawyers advising him that the Yarbroughs had purchased the property at the Trustee’s sale. Additionally, Mrs. Barley, the manager of Corsicana Federal, testified that she warned Mr. Cornish about the foreclosure sale on the property before he made any payments on the place to Corsicana Federal. From these facts we see that the Cornishes had both constructive notice as well as actual knowledge of the Yarbroughs’ claim of title before they (the Cornishes) purchased the property.

We respectfully overrule all of Appellants’ points and contentions. Judgment of the trial court is accordingly affirmed.

AFFIRMED.