author: ODOM, Judge.

text:
    Ex parte Clarence Allen LACKEY.
    No. 56147.
    Court of Criminal Appeals of Texas.
    Dec. 14, 1977.
    Appellant’s Motion for Rehearing Denied Jan. 18, 1978.
    Brown & Brown, McClendon, Richards & Campbell, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and Phil Gamble, Asst. Crim. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from an order entered in a habeas corpus proceeding in the 137th District Court denying the appellant bail.

The record reflects that appellant was indicted for capital murder on August 3, 1977, and is being held without bail for the murder of Toni Diane Kumpf.

The record shows that the deceased’s apartment was located at 1001 Avenue W in Lubbock, and that officers were called to this apartment to investigate a burglary and possible kidnapping during the early morning hours of July 31, 1977. The front door of the residence had apparently been kicked open, as the door facing had been torn from the wall and part of it was on the floor and part was hanging from the night latch chain on the door. The bed inside the apartment looked as if it had been slept in and there were overturned lamp and flower pots inside the apartment which indicated that a struggle had taken place. Later on that same day, the body of the deceased was found on a dirt road in Lubbock County. The deceased’s throat had been slashed and examination revealed that there had been vaginal sexual intercourse within the past 36 to 48 hours.

The investigation revealed that the appellant, who was a suspect, drove a 1968 to 1971 model white fleetside pickup truck with a heavy duty bumper, vertical taillights, and missing either one or two hubcaps. A pickup matching that description was parked in front of the appellant’s residence at 1216 — 83rd Street in Lubbock when officers arrived to search his residence. This pickup had human blood on both the passenger’s and driver’s sides of the seat. This blood was insufficient to determine the type, but blood directly below the seat was found on examination to be Type A. This was the same as the deceased’s blood type.

A search of appellant’s residence conducted at that time led to discovery of blood on the front porch area and inside the residence on a throw rug beside the bed, a chair, the mattress-box springs, and a heavily stained mattress located in the rear bedroom. Examination revealed the blood samples all to be of human origin and to be Type A, the deceased’s blood type. A butcher knife was also located and found to have human blood on it in an insufficient amount to determine the blood type. Hair samples were also found in appellant’s house. A comparison with samples from the deceased indicated that the hair could have come from the deceased.

A postmortem examination of the deceased revealed the presence of spermatozoa and acid phosphate. From this the chemist concluded that sexual intercourse had taken place some time before or after the death of the victim. Further tests showed that the person who had intercourse with the deceased was of blood Type 0, the same type as that of the appellant.

Further examination of the deceased revealed extraneous hair located on her body. A comparison revealed that it was very similar to the appellant’s hair. The opinion of the forensic chemist was that it could have come from the appellant.

The record also reflects that when the appellant was arrested he was wearing boots with specks of blood found on the inside of his left boot. The blood was found to be of human origin and its type matched that of the deceased. Further, a package of Marlborough cigarettes was found in the victim’s apartment and the evidence shows that the appellant smoked this brand of cigarette on the date of his arrest.

In Ex parte Wilson, Tex.Cr.App., 527 S.W.2d 310, 312, we stated:

“In order for the sentence of death to be imposed, there must first be a conviction of capital murder. The State must then prove beyond a reasonable doubt that: (1) the conduct of the accused that caused the death of the deceased was committed deliberately and with the reasonable expectation the death of the deceased or another would result; (2) There is a probability that the accused would commit criminal acts of violence that would constitute a continuing threat to society; (3) If raised by the evidence, that the conduct of the accused in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975).”

In reviewing the evidence as heretofore set out we conclude that the proof is evident that the jury would answer the required questions in the affirmative as required by Article 37.071, V.A.C.C.P. Here, unlike Ex parte Derese, Tex.Cr.App., 540 S.W.2d 332, not only do we have a finding by the trial court that there was a probability that the accused would commit acts of violence that would constitute a continuing threat to society, but also evidence of a criminal record was offered to show a violent nature of the appellant. The record shows that appellant was placed on probation for burglary in 1973. Thereafter, he was convicted of burglary with intent to commit rape in January 1975. His sentences ran concurrently and he was discharged from prison in February 1977. Only five months after having been discharged from prison the record shows that appellant was charged with the instant crime which arose out of yet another burglary with intent to commit rape.

Having concluded that the State met its burden to show “proof evident,” we hold that the trial court did not abuse its discretion in denying bail.

VOLLERS, J., not participating.


source: Caselaw Access Project

author: BROWN, Commissioner.

license: Public Domain

text:
    Herbert Sherril WASHINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 55000.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1977.
    State’s Motion for Rehearing Denied Jan. 18, 1978.
    Jack J. Rawitscher and J. Edwin Smith, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Charles C. Cate, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for the offense of capital murder. Appellant was convicted of the murder of John Thomas Henry while in the course of committing robbery. On April 27, 1976, the jury answered “yes” to the special issues submitted under Article 37.071, Vernon’s Ann.C.C.P. and the punishment was assessed at death.

Appellant now contends that his conviction was obtained in violation of a plea bargaining agreement which the State failed to honor because he filed a notice of appeal in two other convictions.

On January 21, 1975, appellant was indicted for capital murder. At this time, he was also indicted for aggravated robbery and the attempted murder of a peace officer. The jury selection in the capital murder case began on March 22, 1976. A jury was sworn on April 7, 1976, and the State began its case on April 8,1976. On April 8, 1976, the trial court called a two week recess until April 23,1976, and the jury was excused.

On April 9, 1976, appellant entered pleas of guilty to the charges of aggravated robbery and attempted murder of a peace officer, and on the prosecutor’s recommendation received fifty (50) and twenty-five (25) year sentences, respectively, to run concurrently.

Subsequently, appellant filed a pro se notice of appeal in both cases on April 16, 1976. Then, on April 23, 1976, trial resumed in the capital murder case and appellant was thereafter convicted and his punishment assessed at death.

He now contends that the prosecutor resumed trial in the capital murder case in violation of a plea bargaining agreement that if appellant would plead guilty to the aggravated robbery and attempted murder charges, then the State would move to dismiss the pending capital murder charge.

Although the State does not raise an objection in its brief, we note that the evidence before this Court concerning the plea bargain was taken in a hearing on appellant’s objections to the record.

Upon receiving notice of completion of the record, appellant timely filed objections on September 21, 1976, stating that the record did not reflect the trial court’s ruling on appellant’s Motion to Perpetuate Testimony nor did it reflect the reason for the two week recess, which was to take appellant’s pleas of guilty in the other two cases.

The trial court held a hearing on appellant’s objections and ruled that no correction to the record was required but ordered a transcription of the proceedings sent with the record to this Court. For the reasons articulated below, we will review this evidence in ruling upon appellant’s contention.

We are cognizant of our holdings in Boykin v. State, 516 S.W.2d 946 (Tex.Cr.App.1974) and subsequent cases, wherein we declined to review evidence produced in a hearing on an untimely motion for new trial in the trial court. Further, in McCall v. State, 512 S.W.2d 334 (Tex.Cr.App.1974), we held that we would not review evidence produced in a hearing for which there was no provision in our statutes. See Article 40.09, Sec. 6, Vernon’s Ann.C.C.P.

However, in the instant case a hearing on objections to the record was authorized, and was in fact mandated by statute. Article 40.09, Sec. 7, Vernon’s Ann.C.C.P. Therefore, this is not the case as Davis v. State, 529 S.W.2d 547 (Tex.Cr.App.1975) where there was no apparent authority for the hearing held some two months after the defendant’s motion for new trial was filed.

The evidence taken in the hearing on objections to the record being before this Court for review, we ton now to the merits of appellant’s contention.

At the hearing, Ned Wade, appellant's trial attorney, Charles Cate and James Brough, both assistant district attorneys in Harris County, testified. The plea negotiations had been conducted by Wade and Cate, with Brough present at least part of the time.

The evidence is uncontroverted that there was a plea bargaining agreement reached between Wade and Cate. It is also undisputed that the agreement was for appellant to plead guilty to the charges of aggravated robbery and attempted murder. The prosecutor agreed, in return for the plea, to recommend to the trial court that appellant receive sentences of fifty (50) years and twenty-five (25) years, to run concurrently. Both parties testified that in consideration for these pleas Cate agreed to not continue the prosecution in the capital murder case.

The agreement was performed. Appellant pled guilty and Cate made the agreed recommendation. Appellant was sentenced by the trial court, which followed Cate’s recommendation. Nothing further transpired until appellant filed his pro se notice of appeal one week after he was sentenced. The trial in the capital murder case subsequently resumed.

Appellant argues that his prosecution in the capital murder case, in violation of the plea bargaining agreement, was an imposition of a penalty for his exercise of his right to appeal in violation of due process. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). It is not necessary for us to reach this contention nor the question of whether a defendant may ever, as a part of a plea bargain, waive his right of appeal before trial, since we have noticed in the interest of justice that the plea bargain was not kept by the State. See Article 40.09, Sec. 12, Vernon’s Ann.C.C.P.; Moore v. State, 527 S.W.2d 529 (Tex.Cr.App.1975).

There is no showing in the record that appellant agreed, as a part of the bargain, to waive his right to appeal. Therefore, after he pled guilty to the two charges against him, his part of the agreement was complete, and the subsequent prosecution for capital murder was a breach of the agreement and in violation of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Wade testified that the bargain was for appellant to plead guilty to the charges and for the prosecution to make a recommendation as to sentence; that the agreement was that the State would then dismiss the capital murder charges. He further testified that after an agreement had been reached between the parties Cate unilaterally attached a “rider” to the agreement, to the effect that the capital murder case would be recessed for two weeks in order that appellant’s time for giving notice of appeal would expire. Wade stated, “As far as I was concerned it [the “rider”] was of little or no consequence, because we had a firm agreement to plead.”

However, Wade stated that he understood that the bargain was for “final convictions” in the two cases, and that he communicated this to appellant. He further stated that he understood that the purpose of the recess in the capital murder case was to “determine whether or not the trial would continue.” However, he stated that it was his understanding that the pending trial would be “dismissed with prejudice at such time as he had pleaded to one of the other cases.”

Cate testified that was his understanding and “intention” that he would move to dismiss or terminate the capital murder case only if the convictions in the robbery and attempted murder cases became “final”; he stated that by “final” he meant convictions where no notice of appeal was given. However, appellant’s attorney asked:

“Q Are you saying that your agreement was conditioned upon Herbert Washington not exercising his right of appeal?
“A [Cate]: No, because there was nothing to preclude him from exercising his right to an appeal. It was on the basis of a final conviction at that time.”

Cate then stated that it was his intention that if appellant filed a notice of appeal there was to be no agreement between himself and Wade. He then stated, as Wade had, that this proceeding regarding the notice of appeal was not a part of their original agreement as to the content of the bargain.

Brough testified that he was present during negotiations between Wade and Cate, and stated,

“. . .1 remember distinctly stating during that conversation that we would not negotiate on the defendant’s right to appeal. That was in the presence of Mr. Wade and [Cate] . . . [A]t that time I was present and I was insisting there be no agreement based upon the right to appeal — based upon a right to appeal ... I made an assertion to Mr. Wade that we would not bargain on his right to appeal . . . ”

In light of this testimony and the fact that a written waiver of the right of appeal nowhere appears in the records of any of appellant’s three convictions, we cannot conclude that appellant ever agreed, as a part of the plea bargain, to forego his right to appeal. Cf. Mears v. State, 557 S.W.2d 309 (Delivered November 2, 1977); Means v. State, 552 S.W.2d 166 (Tex.Cr.App.1977); Ex parte Thomas, 545 S.W.2d 469 (Tex.Cr.App.1977); Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App.1976); Ex parte Townsend, 538 S.W.2d 419 (Tex.Cr.App.1976); Fisher v. State, 511 S.W.2d 506 (Tex.Cr.App.1974). Since this is not shown to be a part of the plea bargain, appellant did not breach his part of the plea bargain when he filed notice of appeal. Therefore, the State was bound by its agreement to terminate the capital murder trial. Santobello v. New York, supra; McFadden v. State, 544 S.W.2d 159 (Tex.Cr.App.1976); Ex parte Jasper, 538 S.W.2d 782 (Tex.Cr.App.1976). See also, Cleaveland v. State, 507 S.W.2d 769 (Tex.Cr.App.1974); Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973).

The only remedy available to this Court in the instant case is to reverse this conviction, which will have the effect of specifically enforcing the original plea bargain. Since the appeals in the robbery and attempted murder convictions are not before this Court, we do not have the option of reversing those convictions and allowing appellant to withdraw his pleas of guilty. See Santobello v. New York, supra; McFadden v. State, supra; Ex parte Jasper, supra; Colburn v. State, supra.

Accordingly, the judgment is reversed and the prosecution ordered dismissed.

Opinion approved by the Court.

VOLLERS, J., not participating.

      . See, Washington v. State, 551 S.W.2d 56 (Tex.Cr.App.1977).

      . These appeals were dismissed by this Court on appellant’s motion on June 6, 1977. Therefore, these convictions are now final. Washington v. State, supra.

      .The Motion to Perpetuate Testimony was filed June 7, 1976. In this motion, appellant requested that he be allowed by the court to take testimony on the issue of the plea bargain.

      . Neither is there a showing in the record of Washington v. State, 551 S.W.2d 56 (Tex.Cr. App.1977) that appellant signed a waiver of appeal when he pled guilty to the two offenses.


author: PHILLIPS, Judge. ONION, Presiding Judge,

text:
    Doyle Edward SKILLERN, Appellant, v. The STATE of Texas, Appellee. Charles Victor SANNE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55337 and 55338.
    Court of Criminal Appeals of Texas.
    Dec. 21, 1977.
    State’s Motion for Rehearing Denied Jan. 18, 1978.
    J. Douglas Tinker, Corpus Christi, for Skillern.
    Richard D. Hatch, III, Aransas Pass, for Sanne.

      John H. Plinn, Dist. Atty., Sinton, William L. Hardwick, County Atty., George West, Gerald C. Carruth and John C. Blan-ton, Asst. Attys. Gen., San Antonio, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

These are appeals from convictions for the offense of capital murder. Punishment was assessed at death for appellant Skillern and life imprisonment for appellant Sanne. See V.T.C.A., Penal Code, Sec. 19.03, and Art. 37.071, V.A.C.C.P.

On October 24, 1974, Patrick Randel, a narcotics agent for the Texas Department of Public Safety, was found shot to death in his locked car at a roadside park in Live Oak County, Texas. Agent Randel had been working undercover in order to purchase illegal drugs from appellant Skillern and his co-defendant, appellant Sanne. When found, Randel’s money, his gun, a diamond ring, and some State issued credit cards were missing.

Randel had been last seen by other Department of Public Safety agents at 7:10 p. m. October 23, 1974, when he left a motel room in Beeville accompanied by both appellants. Randel left the State money which was to be used in purchasing the illegal drugs in the motel room. He then left in his car with appellant Sanne and appellant Skillern followed in the car in which appellants had arrived. At approximately 8:10 p. m., the car appellant Skillern had driven returned and appellant Sanne was seen entering Randel’s motel room.

Appellants were arrested early the next morning, October 24, in McAllen. Appellant Skillern had the State purchase money and Randel’s gun in his possession and appellant Sanne had Randel’s credit cards and other effects in his possession. The diamond ring was later found in the seat of the vehicle which transported appellant Skillern to jail in McAllen. Both appellants stipulated to the legality of the arrest and subsequent search. The sufficiency of the evidence is not challenged.

In appellant Skillern’s eleventh ground of error and appellant Sanne’s seventh ground of error, they allege that the trial court erred in allowing the jurors to separate after the court’s charge had been read to them on the hearing on guilt. After the court had read the charge to the jury and before final arguments concluded, the court recessed, at which time the following took place:

“MR. FOSTER [Appellant Sanne’s attorney]: May the record show that after the court’s charge had been read to the jury and after Mr. Carruth and Mr. Hardwick [the prosecutors] had argued for the State that there was a recess during the argument at which time the defendants through their counsel are objecting or objected that the jury had been allowed to separate without agreement or consent and whereupon counsel for the defendant Sanne moved for a mistrial, said motion was overruled and the defendant objected and excepted and is now stating into the record those actions as well as requesting the Court to grant leave to defendant after the jury has begun their deliberations to perfect a bill of exceptions to the Court’s ruling and have it considered as if it were done at this time.
THE COURT: All right, same thing for you?
MR. TINKER [Appellant Skillern’s attorney]: Yes, Your Honor . . .”

At the hearing to perfect the bill of exceptions, testimony showed that the jury had been allowed to separate. Mr. Foster testified that he had seen one juror reentering the courthouse from the courthouse annex. He had also seen another juror outside the courthouse coming from the direction of a grocery store which was located across the street from the courthouse. At the time of this separation, the courthouse was crowded with spectators and law enforcement officers. Foster stated that he had not seen the jurors speak to any of the people in the courthouse.

Mr. Chris Ybanez, the bailiff in charge of the jury, testified that two jurors did leave the jury room. He believed that one juror had gone to the restroom in the annex and the other went downstairs to the restroom. He stated that he had not seen any of the jurors talk with anyone during the recess. He also stated that there were many spectators in the courthouse.

The appellants cite and rely upon Goodall v. State, Tex.Cr.App., 501 S.W.2d 342, where we held that once a jury is allowed to separate after the charge had been read and without the consent of the defendant, the burden is upon the State to rebut the presumption of harm. In the instant case, this presumption was not rebutted. While both the bailiff and Foster testified that they had not seen the jurors speak to anyone, they could not testify that the jurors did not have any contacts with the spectators. The State failed to offer any affidavits or testimony from the jurors involved. Testimony by a person not proven to have had a juror within his sight at all times during a separation merely to the effect that he did not see a juror speak to anyone is analogous to testimony by a juror that he did not hear certain misconduct in the jury room. Such “did not hear” testimony of a juror as to misconduct, standing alone, has been held by this Court to constitute “no evidence” that such did not occur. Spriggs v. State, 160 Tex.Cr.R. 188, 268 S.W.2d 191; Citizen v. State, 159 Tex.Cr.R. 519, 265 S.W.2d 109. The State having wholly failed to rebut the presumption of harm from violation of said mandatory statute, such violation constituted reversible error.

The remaining grounds of error urged by appellants pertain to matters that will not likely arise upon another trial, for which reason we omit their discussion.

For the reasons stated, the judgment as to each appellant is reversed and the causes remanded.

DOUGLAS, J., concurs in the result.

YOLLERS, J., not participating.

ONION, Presiding Judge,

concurring.

I reluctantly agree that these death penalty convictions must be reversed because of the improper separation of the' jurors and the failure of the State to rebut the presumption of harm that arises. I feel that a better explanation is necessary so that the action of the court will be better understood by the bench and bar, the news media, the public and all concerned. I think it should be made plain that the reversal is predicated upon the violation of a mandatory statute, Article 35.23, Vernon’s Ann.C. C.P., a statute not even mentioned in the majority opinion.

Courts have for a long time had an interest in protecting jurors from outside influences. The common law rule was “that the jury be kept together without meat or drink until a verdict was reached. 3 Blackstone; 375”; People v. Wilson, 400 Ill. 461, 477, 81 N.E.2d 211, 219 (1948); 23A C.J.S. Criminal Law § 1356a. The common law rule was codified in some jurisdictions and modified in others. The concern about removing the jury from contact with interested parties dr merely curious third parties was eventually embodied in the various Codes of Criminal Procedure of this state. These statutes prohibiting the separation of the jury were designed to preserve the purity of the jury and to insure a fair and impartial trial. In English v. State, 28 Tex.App. 500, 13 S.W. 775, 776 (Court of Appeals 1890), the court in discussing Article 687 of the Code of Criminal Procedure then in effect discussed such safeguards:

“. . . In a felony case, to secure the efficiency and purity of the trial, it has been deemed necessary that the jury shall not .be allowed to separate, and, if allowed by consent of parties, they must, during separation, each individual, be in charge of a trusted officer of the court, who will see to it that their purity and efficiency are preserved.”

Article 623, Vernon’s Ann.C.C.P., 1925 (as amended Acts 1955, 54th Leg., p. 795, ch. 288, § 3), prohibiting the separation of jurors in capital cases after they have been sworn and Article 668, Vernon’s Ann.C. C.P., applying the same rule in non-capital felony cases, were typical of the statutes enacted prior to the present Code of Criminal Procedure enacted in 1965.

These statutes and their forerunners when construed in connection with Article 1, § 10 of the State Constitution, were held to be imperative and mandatory, and a separation of the jury, except under the conditions imposed, was fundamental error. McCampbell v. State, 37 Tex.Cr.R. 607, 40 S.W. 496 (1897); Brown v. State, 38 Tex. 482 (1873); English v. State, supra; Pearson v. State, 145 Tex.Cr.R. 87, 165 S.W .2d 725 (1942). Under these prior enactments, when there was a separation of the jurors at any time after they were sworn and impaneled, without the consent of the parties, it became incumbent on the State to show that such jurors did not mingle or converse with anyone not a member of the jury. Green v. State, 156 Tex.Cr.R. 22, 238 S.W.2d 775 (1951); Newton v. State, 114 Tex.Cr.R. 537, 26 S.W.2d 233 (1930). This was so because when such separation occurred injury was presumed unless the State rebutted such presumption. Norwood v. State, 120 Tex.Cr.R. 510, 48 S.W.2d 276 (1932). “Without a complete showing of noninterference with the jury by anyone outside its number, we cannot say that a separation — as the same is denounced by statute — did not occur. See Arts. 623 and 668, C.C.P.” Green v. State, supra. See also Cockrell v. State, 85 Tex.Cr.R. 326, 211 S.W. 939 (1919).

Permitting jurors to separate or go to their homes unaccompanied by an officer has often resulted in reversals. See, e. g., Poston v. State, 121 Tex.Cr.R. 583, 51 S.W.2d 362 (1932); Osborne v. State, 136 Tex.Cr.R. 125, 124 S.W.2d 366 (1939); Gant v. State, 55 Tex.Cr.R. 284, 116 S.W. 801 (1909); Garner v. State, 89 Tex.Cr.R. 486, 231 S.W. 389 (1921); Wells v. State, 155 Tex.Cr.R. 592, 238 S.W.2d 208 (1951).

With the enactment of the 1965 Code of Criminal Procedure Article 35.23, Vernon’s Ann.C.C.P., replaced former Articles 623 and 668 eliminating any distinction between capital and noncapital felony cases regarding the separation of the jurors. Smith v. State, 437 S.W.2d 835 (Tex.Cr.App.1968); Comment, “The Texas Code of Criminal Procedure,” 44 Tex.L.Rev. 983, 1007.

Said Article 35.23, supra, reads as follows:

“The court may adjourn veniremen to any day of the term. When jurors have been sworn in a felony case, the court may, at its discretion, permit the jurors to separate until the court has given its charge to the jury, after which the jury shall be kept together, and not permitted to separate except to the extent of housing female jurors separate and apart from male jurors, until a verdict has been rendered or the jury finally discharged, unless by permission of the court with the consent of each party. Any person who makes known to the jury which party did not consent to separation shall be punished for contempt of court. If such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors. In misdemeanor cases the court may, at its discretion, permit the jurors to separate at any time before the verdict. In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.”

It can be readily seen that some of the rigidity of the former statutes was eliminated. Instead of forbidding separation at any time after the jurors are sown and impaneled, Article 35.23, supra, permits the jurors in felony cases to separate at the court's discretion until the charge to the jury is given. The retention of the provision forbidding separation after the charge is given is best expressed in 72 A.L.R.3d 248, 253:

“. . . courts appear to continue to take a more serious view with regard to separations after submission of the cause to the jurors for deliberation than to pri- or separations, because the chances of outside influence are more pronounced when the evidence is all in, any extralegal information then tending to have a greater effect on the verdict, and moreover, because, when the trial is nearing its end, the danger of tampering with the jury is considerably greater.”

Article 35.23, supra, must, of course, be read in light of our bifurcated trial system established by Articles 37.07 and 37.071, Vernon’s Ann.C.C.P. Where the jury is required or is chosen to assess punishment, there may well be two charges given, one at the guilt-innocence stage of the trial and another at the penalty stage of the trial. In such cases there are two periods of the trial when the separation of the jury is forbidden except under the conditions imposed under the statute. As explained in Sierra v. State, 476 S.W.2d 285 (Tex.Cr.App.1971), sequestration is required only after a charge is given and before the jury renders a verdict on that charge. Once the jury reaches a guilty verdict during the guilt or innocence phase of the trial, it is again within the discretion of the trial court to permit the jury to separate until the charge on punishment is given. If separation is permitted after the return of a guilty verdict at the court’s discretion but prior to the charge at the penalty stage of the trial-being given, there is no presumption of harm. Johnson v. State, 469 S.W.2d 581 (Tex.Cr.App.1971). In such situation the burden is no longer on the State to show that nothing prejudicial occurred during the jury’s separation, but the burden is on the defendant to show that he was injured by the court’s action. Johnson v. State, supra.

However, where the separation occurs after the charge is given at the guilt stage of the trial, the presumption of harm still prevails, placing the burden on the prosecution to show that no injury resulted or could not reasonably have resulted from such separation. Goodall v. State, 501 S.W.2d 342 (Tex.Cr.App.1973); Green v. State, 510 S.W.2d 919 (Tex.Cr.App.1974).

The presumption of harm when there is a separation of the jury in violation of an applicable statute and under circumstances which might expose the jurors to improper influences, thus casting upon the State the burden of dispelling such presumption, is not peculiar to Texas. See, e. g., Pratt v. State, 48 Ala.App. 341, 264 So.2d 571 (1972); Ford v. State, 330 P.2d 214 (Okl.Cr.App.1958); Gibson v. State, 512 P.2d 1399 (Okl.Cr.App.1973); Green v. State, 319 P.2d 321 (Okl.Cr.App.1957); People v. McDonald, 38 Mich.App. 639, 196 N.W.2d 834 (1972); In re Winchester, 53 Cal.2d 528, 2 Cal.Rptr. 296, 348 P.2d 904 (1960), cert. den., 363 U.S. 852, 80 S.Ct. 1631, 4 L.Ed.2d 1734.

In Wharton's Criminal Procedure, 12th Ed., Torcia, Vol. 4, § 552, p. 52, it is written:

“If ... a separation is apparently unauthorized, prejudice to the defendant will be presumed. In such case, the burden is on the prosecutor to prove that the defendant was not in fact prejudiced. The prosecutor may meet this burden by showing, for example, that the separated jurors were in the charge of an officer or that they were not subjected to any improper outside influence.”

With this background, the facts of the instant case should be examined. After the charge was read to the jury at the guilt stage of the trial and after the State’s opening argument, the trial court permitted the jury to separate, over the objection and protest of appellants’ counsel, who pointed out that the charge had been read and that the courthouse was full of peace officers “from all over this area” and' “full of spectators” to which the court replied, “Well, I know.” Appellants then asserted the jury was mingling with the spectators. The court overruled the motion for mistrial, but instructed the bailiff to get the jury back in the jury room. Later the appellants were permitted to perfect their informal bill of exception. Marvin Foster, attorney for the appellant Sanne, testified as to the separation and the objection thereto, and related that thereafter he went directly to the open jury room door and saw five or six jurors there. He then went to the ground floor and he saw the juror Cuevas coming in the west door of the courthouse from the direction of the courthouse annex. Foster later went around the north end of the said annex to go to the grocery store across the street and observed the juror Stainthorpe coming out of the street onto the courthouse square “and he had obviously been at least across the street.” The court then stated it had ascertained that “two of them left the area.” Chris Ybanez, the bailiff, testified the jurors separated and that “one of them went to the annex building to the restroom, one of them went downstairs, and the rest of them went to the restroom on the inside here.” He related some of the women jurors went into a public restroom marked “Jurors Only” and there may have been some women spectators who entered the restroom. He stated, . . I will testify I saw one lady juror go in and then I saw some women spectators.” The deputy saw juror Cuevas coming up the stairs and told him to report to the jury room. He stated juror Stain-thorpe “was in the restroom at the annex building near the door on the outside, and I told him to get back right away.” This was all that was developed on the bill of exception, the time span of the separation not being established. The appellant again moved for a mistrial, and the district attorney opposed the same stating the appellant had failed to show harm. The motion was overruled with the court stating there had been no contact “as far as I know.”

Since the charge had been given to the jury, the district attorney was in error as to whose burden it was to show harm. There was a presumption of harm. It may have been relatively easy to rebut the presumption of harm, see and cf. Barnett v. State, 50 Tex.Cr.R. 538, 99 S.W. 556 (1907); McIlveen v. State, 559 S.W.2d 815 (Tex.Cr.App.1977), but no effort was made by the State to call the jurors or other witnesses to rebut that presumption at the time of the perfection of the bill of exception or later on a hearing on a motion for new trial.

This then is the record before this court on which we must pass upon appellant’s contention. Since the presumption of harm was not rebutted, there is no choice but to reverse the convictions.

I concur in the result reached.

      . Said Article 623 reads:
      “The Court may adjourn veniremen to any day of the term. In felony cases when jurors have been sworn in a case, those so sworn shall be kept together and not permitted to separate until a verdict has been rendered or the jury finally discharged; provided, however, that when such jurors are kept overnight, facilities shall be provided for female jurors separate and apart from the facilities provided for male jurors, and such juries shall be permitted to separate to the extent of housing female jurors separate and apart from male jurors.”

      . Said Article 668 reads:
      “After the jury has been sworn and impaneled to try any felony case, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the State and the defendant, and in charge of an officer.”

      . Where the separation was momentary and no opportunity existed for anyone to communicate with the jury, the separation was not prejudicial. Sheffield v. State, 151 Tex.Cr.R. 334, 206 S.W.2d 1016 (1948); Austin v. State, 375 S.W.2d 308 (Tex.Cr.App.1964).

      . We are not here confronted with a question of whether the appellant consented to the separation of the jury or whether the record reflects such consent. See and cf. Romero v. State, 458 S.W.2d 464 (Tex.Cr.App.1970); Rhynes v. State, 479 S.W.2d 70 (Tex.Cr.App.1972); Green v. State, supra.

      . The deceased was shown to be a peace officer.


author: COULSON, Justice.

text:
    ROYLEX, INC., Appellant-Appellee, v. AVCO COMMUNITY DEVELOPERS, INC., Appellee-Appellant.
    No. 1463.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Oct. 31, 1977.
    Rehearing Denied Dec. 21, 1977.

      George M. Bishop, Houston, for appellant-appellee.
    Edmund L. Cogburn, Dow, Cogburn & Friedman, Houston, for appellee-appellant.
   COULSON, Justice.

This is an appeal from a breach of contract suit by a subcontractor against a general contractor. The trial court found for the subcontractor and awarded him damages, but refused to award attorney’s fees. Both parties appeal. We affirm in part, reverse in part, and reverse and render in part.

Roylex, Inc. (Roylex) was a subcontractor on a townhouse subdivision project, Villa Verde Townhouses, of which Avco Community Developers, Inc. (Avco) was both owner and general contractor. Roylex was employed to build streets, patios, and foundations at the project.

The agreement between Roylex and Avco consisted of three contracts. The first of these was initially oral, but was later reduced to handwriting, and later still was typed. The other two were printed form contracts supplied by Avco and dealt with foundation and street work respectively.

Disputes developed between the parties which they unsuccessfully attempted to resolve. Roylex eventually filed suit for breach of contract, citing Avco’s refusal to pay for work that had been done. Avco counterclaimed for damages as a result of Roylex’s allegedly defective work. Both parties asked for an award of attorney’s fees.

Roylex was successful in convincing the jury that it was entitled to be paid and judgment was entered on the amounts found. Avco appeals from that judgment. The court refused, however, to award Roy-lex attorney’s fees, and computed the liquidated damages due Roylex under the printed form contracts in a manner which Roy-lex felt was incorrect. Roylex appeals from those parts of the judgment.

We will discuss Avco’s points of error first, and then Roylex’s.

In points of error one and two Avco attacks the jury’s finding that Avco owed Roylex a total of $15,322.91, demonstrating that the award could not have exceeded $13,699.59. In establishing the excess, Avco cites clear and unequivocal statements made by the president of Roylex at the trial. These statements are binding on Roylex. Admissions in testimony of a party to a suit bind him and do not raise fact issues. Stephenson v. O’Neal, 433 S.W.2d 804 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.); see Gevinson v. Manhattan Construction Co. of Okl., 449 S.W.2d 458 (Tex.Sup.1969). Our review of the record convinces us that Roylex could not have recovered over $13,699.59 for unpaid claims exclusive of amounts due for machine rental.

Avco’s points of error one and two are sustained and the judgment is ordered reduced by $1,623.32.

Avco next complains that the jury’s award improperly included increases for the price of steel. The oral contract between the parties contained a steel price escalation provision but the later, printed form, ones did not. Avco argues that Roylex collected increases for work done under the later contracts. Roylex, in turn, contends that all of the steel price increase charges it made were for work done under the oral contract. It is clear that any charges made for work done under the later contracts violate the parol evidence rule and are improper.

Roylex charged Avco for steel price increases on 5264 square yards of street area and 44,226 square feet of slab area at a rate of ten cents per square foot (ninety cents per square yard). Although the evidence is confusing, we believe it was sufficient to justify the jury’s conclusion that 4565 square yards of street were poured by Roylex before July 31,1973, the date of the written contract dealing with street work.

That answer, however, further reduces the amount which Roylex could recover. Only 4565, not 5264, square yards of street were subject to the ninety cents per square yard steel price increase. The judgment is ordered further reduced by $629.10.

No special issues were submitted on when the slab or foundation work was done. We believe the evidence was sufficient to support the implied finding that it was all done under the oral contract.

In point of error fourteen Avco complains that the invoices by which Roylex sought to prove its claims were erroneously admitted into evidence since a proper predicate for their admission was not laid under Tex.Rev. Civ.Stat.Ann. art. 3737e (Supp.1976-77).

It is clear that before business records may be admitted into evidence it must be shown that the person who either made the record or transmitted the information to another to record had personal knowledge of the act, event, or condition recorded. Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup.1962). Mrs. Teel, Roy-lex’s bookkeeper, testified that she prepared the invoices in question based on information given her by the field supervisor, or someone else present at the project, and that the supervisor occasionally filled out invoices himself. She stated that the field supervisor was at the project site at all times and that because of this he had personal knowledge of the acts or events recorded in each of the invoices.

Avco notes that presence on a job-site does not necessarily provide a person with personal knowledge of all that occurs there. It remains, however, that the judge drew such an inference from the evidence, and it is elemental that an appellate court will not overturn a trial court’s finding of fact simply because different inferences or conclusions could have been drawn from the evidence, or even because the appellate court might have reached a different conclusion from that evidence. Commercial Union Assurance Company v. Foster, 379 S.W.2d 320 (Tex.Sup.1964). Mrs. Teel’s testimony was sufficient to support the trial court’s implied finding of fact that the requisite personal knowledge existed.

Avco also contends that the invoices were inadmissible since it was not established that they were made at or near the time of the act or event they record. This objection was not, however, made at the time the invoices were admitted into evidence; at the trial Avco limited its objection to the failure to prove personal knowledge. It is well established that grounds specified by an appellant in its objection at trial may not be enlarged on appeal to include other grounds not asserted at trial. E. g., Kaufman Northwest, Inc. v. Bi-Stone Fuel Co., 529 S.W.2d 281 (Tex.Civ.App.—Tyler 1975, writ ref’d n. r. e.).

Avco’s points of error fourteen and twenty are overruled.

In its fifteenth point of error, Avco argues that it was error to admit the testimony of another subcontractor that he had made a settlement with Avco since this was irrelevant to any issue in the case and was prejudicial. This contention is without merit. The statement was made in response to the question of whether Avco had paid him for his work and was relevant to Roylex’s claim that it had left the project because of non-payment. It also tended to establish Roylex’s point that Avco’s nonpayment of its subcontractors was responsible for problems at the project.

In point of error nineteen, Avco asserts that Roylex should not be permitted to recover for building a patio at the private home of a city inspector since this was done as a personal favor to the inspector and was an illegal act. The simple answer to this is that illegality is present only in the contract between Avco and the city inspector, not in the contract between Avco and Roylex. There is no evidence that Roy-lex knew of the facts which made the transaction illegal, and it would be unjust to permit Avco to set up its illegal conduct as a bar to Roylex’s recovery. Graham v. Dean, 144 Tex. 61, 188 S.W.2d 372 (1945).

In points of error seventeen and eighteen Avco argues that the evidence establishes that Avco was entitled to $9,519.72 in credit for steel it furnished to Roylex and not $8,406.33 as contended by Roylex. Two of the exhibits introduced by Avco contained the greater figure and are apparently initialed by Teel. The Roylex invoice which deals with this matter contains both figures, the lesser one typewritten and the greater one handwritten.

Avco asserts that Roylex put the invoice in evidence, that the handwritten term controls, and that Roylex is bound by that term. While handwritten terms in a writing generally control over printed or typed ones, the rule is not absolute; the matter is subject to explanation. Teel testified that the handwritten notation on the invoice did not constitute a concession that the greater amount was due Avco, but was instead merely a memorandum of what Avco was claiming. Moreover, he never admitted that the initials on Avco’s exhibits were his own. In light of this testimony, we believe the issue of which figure was correct was properly left to the jury.

Points of error seventeen and eighteen are overruled.

Avco also claims that the jury’s findings in special issues 9b through 9e conflict with its findings in special issue 3. Special issues 9b through 9e ask whether Avco had agreed to pay certain invoices. The jury answered that they had not. Special issue 3 asked how much Avco owed Roylex for work done, and materials and equipment furnished. The jury found a total of $15,-322.91 was owed.

There can be no conflict between these answers since Avco’s liability to Roy-lex was by no means conditioned on its agreement to pay the invoices. Avco could have refused to pay the invoices and still have owed Roylex for the work.

Point of error nine is overruled.

In points of error twelve and thirteen, Avco complains that the judgment is incorrect to the extent it makes an award for rental time on a front-end loader since there was either no evidence or insufficient evidence to support the jury’s finding that Avco had agreed to pay that claim. As discussed above, agreement to pay a claim and liability on that claim are not the same thing. Points of error twelve and thirteen are overruled.

All of Avco’s other points of error have been duly considered and are overruled.

Roylex, in its attack on the trial court’s judgment, maintains that the court erred in failing to award it attorney’s fees under Tex.Rev.Civ.Stat.Ann. art. 2226 (Supp.1976-77). We agree.

The evidence produced at trial conclusively establishes that Roylex presented its claim for services rendered, labor done, and material furnished, and that the claim had not been paid thirty days thereafter. The invoices Roylex sent Avco constituted a sufficient demand for payment. See National Life & Accident Ins. Co. v. Dove, 174 S.W.2d 245 (Tex.Sup.1943). Since the evidence on presentment was conclusive, that issue did not have to be submitted to the jury. McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ). It is immaterial that part of the claim was for equipment time since that is properly included under article 2226. Bullard v. Carroll Equipment Co., 539 S.W.2d 384 (Tex.Civ.App.—Waco 1976, no writ).

The argument that Roylex furnished a general service, the construction of streets and slabs, and is therefore beyond the scope of article 2226 is also without merit. When a person furnishes a part or piece of a final project, upon which fabrication and labor have been performed, and without which the general project could not have been completed, he is entitled to recover reasonable attorney’s fees. Ambox, Inc. v. Stewart & Stevenson Services, Inc., 518 S.W.2d 428 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref'd n. r. e.); accord Pacific Coast Engineering Co. v. Trinity Const. Company, 481 S.W.2d 406 (Tex.Sup.1972); Howard v. French-Brown Floors Co., 542 S.W.2d 709 (Tex.Civ.App.—Dallas 1976, no writ). The streets and slabs furnished by Roylex constituted parts and pieces of Avco’s general project, the Villa Verde complex.

The reasonableness of attorney’s fees of $7,000.00 for the trial and $2,000.00 for this appeal was stipulated by the parties, and is not in issue.

Roylex also complains that the trial court improperly computed the amount of liquidated damages due it under the printed form contracts. In a section dealing with termination without cause, each of the contracts provides that if the contractor terminates the subcontractor, the subcontractor will be entitled to the costs of the work completed plus 15% of that amount for overhead and profit, subject to a deduction for payments made to the subcontractor before termination.

The trial court interpreted this to mean that the payments already made should be deducted from the costs of the work completed and the 15% overhead and profit be figured on the difference. Roylex argues that the proper method is to add the total costs and 15% of that together, and then subtract the amount of the payments made.

We believe the court’s interpretation is consistent with the contract terms and is preferable since it prevents a double recovery for profit and overhead.

Roylex’s points of error two and three are overruled.

Affirmed in part, and reversed in part with instructions to reduce the amount of the judgment by $2,252.42, and reversed and rendered in part awarding $9,000.00 as attorney’s fees to counsel for Roylex. The costs of this appeal are taxed equally to Roylex and Avco.

ON MOTION FOR REHEARING

Avco’s point number one on motion for rehearing is sustained.

In an order entered after the rendition of judgment, the trial court required a remitti-tur of $1,326.06, the amount awarded as liquidated damages. No appeal was taken from this order and no error assigned to it. Roylex’s points of error two and three and the arguments made under them were limited to challenging the method of the original computation. Our decision overruling that challenge is unchanged.

All other points on rehearing are overruled.


author: KLINGEMAN, Justice.

text:
    J. M. RUIZ, Appellant, v. J. C. MARTIN, Jr., et al., Appellees.
    No. 15813.
    Court of Civil Appeals of Texas, San Antonio.
    Nov. 9, 1977.
    Rehearing Denied Dec. 14, 1977.

      Carlos Castillon, Mann, Castillon, Freed & Kazen, Laredo, for appellant.
    R. J. Goodman, Goodman & Cronfel, Laredo, for appellees.
   KLINGEMAN, Justice.

This is a suit involving the apportionment of royalties under an oil, gas, and mineral lease. The lease involved was given by appellant’s predecessor in title and covered three tracts of land aggregating 600 acres, which lands are presently owned by appellant, J. M. Ruiz. Appellees, J. C. Martin, Jr. and Dora M. Russell, are the owners of an undivided one-half interest in the oil royalties, gas royalties, and royalties in other minerals in a tract of 463.8 acres, described as Tract I in such lease. Such royalty interest is a perpetual non-participating royalty interest. This interest was outstanding at the time the oil, gas, and mineral lease was given and at the time the appellant purchased the property. During the term of the lease, a producing gas well was brought in on the tract described as Tract II in such lease. Appellant asserted that he was entitled to all of the royalties from gas produced from such well, and appellees asserted that they had an interest in such royalties. Gulf Oil Corp., the purchaser of the gas produced from such well, filed this suit as an interpleader suit against both appellant and appellees, seeking a determination of the ownership of the royalties accruing with respect to the production of gas from the gas well. The case was submitted to the trial court on an agreed statement of facts. After a hearing, the trial court entered judgment that appellees are entitled to a .386500 [½ X 463%oo] part of the royalties on all oil, gas, and other minerals produced from such well from and after December 9, 1974 and so long thereafter as there is production from such well.

On June 16, 1959, appellees, J. C. Martin, Jr. and Dora M. Russell [Dora Martin Bunn], together with Minnie B. Martin, whose interest is now owned by appellees, conveyed to Isuaro Martinez, Jr. a tract of 463.8 acres of land. In such deed appellees reserved to themselves an undivided one-half interest in the oil royalties, gas royalties, and royalties in other minerals in and to said 463.8-acre tract, perpetually. Appel-lees have continued to own such interest and are presently the owners. The fee simple title to such tract, less the reserved royalty interest of appellees, was conveyed by Martinez to Salinas, by Salinas to Villarreal, and by Villarreal to appellant, J. M. Ruiz. The oil, gas, and mineral lease involved was given by Villarreal on June 14, 1968, and covered three tracts of land aggregating 600 acres, which included the 463.8-acre tract described as Tract I. A gas well was completed on Tract II on November 14, 1974. By an instrument dated December 9, 1974, appellees ratified the oil, gas, and mineral lease involved “to the same extent as if they had originally joined in the execution thereof.” Notice was timely given to appellant.

This lease is in a form sometimes referred to as a Commercial Producer’s 88 lease. It contains an unless clause, Vsth landowner’s royalty clause, and a pooling or unitization provision, but does not contain an entirety clause. Ruiz is a fee simple owner of Tracts II and III, and also owns Tract I [463.8 acres], subject to the reserved one-half non-participating royalty interest owned by appellees.

By two points or error, appellant asserts that the trial court erred in holding that (1) appellees are entitled to a .386500 [or ½ X 463-%oo], of the royalties of production from the Ruiz #1 well from and after December 9, 1974, for the reason that such holding is contrary to the non-apportionment rule of law applicable in Texas; (2) appellees’ ratification of the 1968 mineral lease on December 9, 1974 effected a cross-conveyance of royalty agreement between them and appellant, for the reason that the 1968 mineral lease did not purport to bind appellees to a cross-conveyance of royalties as to the lease in its entirety, nor did appellant otherwise agree to such cross-conveyance of the royalties in Tract II described in said lease.

We have concluded that the trial court’s judgment is correct.

Appellant relies heavily on Japhet v. McRae, 276 S.W. 669 (Tex.Comm.App.1925, jdgmt. adopted), and asserts that it is controlling. We do not agree.

In Japhet, the owner of a 15-acre tract of land executed an oil, gas, and mineral lease covering the entire 15 acres. The lessor-landowner conveyed the south 10 acres to one party and the north 5 acres to another party. A producing oil well was completed on the 10-acre tract, and the owner of the 5-acre tract contended that he was entitled to participate in the royalties payable under the lease. The court applied a non-apportionment rule and held that each owner was entitled to all of the royalties on the oil produced from his particular tract. The court placed much emphasis on the fact that the rule of capture prevails in this State and that there was no presumption of drainage. Japhet differs from our case in a number of respects. In Japhet, the subdivision of ownership occurred after the lease was granted, while in the ease before us the subdivision of ownership of Tract I occurred long before the granting of the lease and also before appellant purchased the land. In our case, the owners of the one-half interest in the oil, gas, and other minerals [appellees] timely ratified and confirmed the lease, which is not involved in the Ja-phet case.

We base our holding herein on the following cases: Montgomery v. Rittersbacher, 424 S.W.2d 210 (Tex.1968); Southland Royalty Co. v. Humble Oil & Refining Co., 151 Tex. 324, 249 S.W.2d 914 (1952); May v. Cities Service Oil Co., 444 S.W.2d 822 (Tex.Civ.App.—Beaumont 1969, writ ref’d n.r.e.); Guaranty Nat. Bank & Trust of Corpus Christi v. May, 395 S.W.2d 80 (Tex.Civ.App.—Waco 1965, writ ref’d n.r.e.); Standard Oil Co. of Texas v. Donald, 321 S.W.2d 602 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n.r.e.); French v. George, 159 S.W.2d 566 (Tex.Civ.App.—Amarillo 1942, writ ref’d); Parker v. Parker, 144 S.W.2d 303 (Tex.Civ. App.—Galveston 1940, writ ref’d).

It is well settled by the decisions in this State [Parker v. Parker, supra; French v. George, supra; and Southland Royalty Co. v. Humble Oil & Refining Co., supra] that an ordinary oil, gas, and mineral lease, when executed by all the owners of different mineral interests in two or more tracts, is effective to pool the royalties payable under the lease. In Southland Royalty Co., supra, the Supreme Court said:

It may be noted here that respondents suggest a re-examination of the Parker and George cases on the theory that the courts should not attribute to lessors jointly executing a general form lease, without more, an intent to pool or unitize their properties; that the language of the general form lease was never intended to effect or to operate as a pooling agreement. This argument is not entirely unappealing. The Texas rule in this respect is not of universal application. . On the other hand, the law of the Parker and George cases has now become a rule of property in this state and ‘should not be changed in the absence of other controlling circumstances, even though good reasons might be given for a different holding.’ . . .No doubt many such leases have been executed and delivered by lessors and accepted by lessees in reliance on the holdings in the Parker and George cases that they effectively unitize the land included therein. 249 S.W.2d at 916.

We think the language of the Supreme Court in Montgomery v. Rittersbacher, supra, is particularly significant. In such case, the Court said:

This Court has never been called upon to decide the question of whether a holder of non-participating royalty has an option to make an entirety clause operative on his interest. We think that the non-participating royalty owner, so far as the existence of an option is concerned, occupies a comparable position to that of a cotenant under a lease made by his cotenant or a non-participating royalty owner under a pooling agreement made by the holder of the executive rights. As to the cotenant, it has been held that he has the right to ratify or repudiate a lease made by his cotenant which covers his interest. . . . Likewise, in the pooling area, if a non-participating royalty owner ratifies a pooling agreement, either by joining in the execution of the agreement or by accepting royalties from the pool, his interest is bound by the pooling agreement. . . . Therefore, we hold that the non-participating royalty owner has the option to ratify or repudiate a lease containing provisions which as to his interest the holder of the executive rights had not authority to insert in the lease. 424 S.W.2d at 214, 215.

The lease in the case before us has a pooling provision. Such lease does not have an entirety clause, and appellant argues strongly that the absence of an entirety clause is material and controlling. In this connection, the Supreme Court, in Montgomery v. Rittersbacher, said:

We agree that the Respondents, the holders of the executive rights, did not have the power to bind Montgomery’s non-participating royalty interest by virtue of the entirety clause alone, but do not agree with their contention that the Petitioner has not ‘properly’ ratified the lease. We are of the opinion that the enlargement or diminishment of the rights of a prior non-participating royalty owner can be accomplished by the holder of the executive rights executing an oil, gas, and mineral lease which includes either a pooling clause or an entirety clause, provided the non-participating owner ratifies •such action. (Emphasis added.)
* * * * ⅜! %
We can see no distinction between the pooling clause, insofar as it has the effect of changing the aggregate ownership of the non-participating royalty owner, and the entirety clause, which, in effect, would allow the holder of the executive rights to either diminish or enlarge the ownership of that of the royalty owner. In either case, the consent of the owner must be obtained. 424 S.W.2d at 212-213.

There are two other cases, Guaranty Nat. Bank & Trust of Corpus Christi v. May, supra, and May v. Cities Service Oil Co., supra, which are also analogous. In the first May case, May in 1958 executed an oil and gas lease on 401.22 acres, which was composed of five separate tracts. May owned the executive right to lease all five tracts, although several different persons owned the royalty interests in the five tracts. Some of these royalty owners ratified the lease, Koch did not. In 1964, the lessee completed a gas well on a tract in which the royalties were owned by Koch and May. May brought suit, contending that since all the royalty owners did not ratify the lease, no communitized lease came into existence and only Koch and May should be entitled to share in the royalties on the well. The Court stated that while May did have the power to execute the oil and gas lease, the authority to pool the royalty interests only could be granted by the royalty owners jointly executing the lease, or by ratifying the lease. The Court held that the royalty interest could not be unitized or communitized without the join-der or ratification of all the royalty owners, and that ratification by less than all of the owners does not effectuate the pooling. After the first May case, Koch attempted to ratify the lease so as to claim his proportionate interest in the entire tracts leased [other wells had been completed on other tracts]. The trial court held this ratification void under an estoppel theory. The appellate court reversed this part of the trial court’s ruling, and held that Koch could not be barred from ratifying the lease. The court pointed out that Koch would be deprived of claiming any benefits under such lease until he ratified the lease, and that once Koch ratifies, he is entitled to a pro-rata payment for future, but not past, production.

At the time that Villarreal executed the oil, gas, and mineral lease here involved, appellees were the owners of a one-half royalty interest in a tract described as Tract I in such lease. Villarreal had the executive power to execute such oil, gas, and mineral lease, but did not have the power to pool or unitize the royalty interest as to Tract I without joinder or ratification by appellees. The lease amounted to a proposal or offer by the lessor [Villarreal] to the lessee and appellees to effect or create a community lease and to pool or unitize all of the royalties in all of the tracts described in the lease. Appellees timely ratified the lease. Such ratification provided that the oil, gas, and mineral lease was ratified fully and completely to the same extent as they had originally joined in the execution thereof.

Appellees were the owners of an interest in land included in the lease [an undivided one-half interest in the oil royalties, gas royalties, and other minerals in Tract I] at the time the lease was executed and are still the owners. If appellees had joined in the execution of the original oil and gas lease, as lessors, at the time of the execution of the lease, there is no question that their interests would have been pooled or unitized as a matter of law with all other interests in all three tracts covered by the lease. Instead of joining in the original, they timely ratified it. Under such circumstances, the effect of such ratification is the same as execution of the original lease.

A case closely in point is Standard Oil Co. of Texas v. Donald, supra. In this ease, Paul and J. M. Donald owned 80 acres in Block 8, 2.7 acres in Block 9, and 80 acres in Block 13, which tracts were contiguous. In 1945 the Donalds conveyed to Heartwell an oil and gas interest in 40 acres out of Block 13. At the time of the conveyance, the three tracts were under a single oil and gas lease to Continental Oil Co. The conveyance to Heartwell provided that in the event that the Continental lease expired, the Donalds would have the executive right to lease the property. Continental’s lease expired and the Donalds executed an oil and gas lease, covering all three tracts, to Standard. Shortly after the execution of the lease, the assignees of Heartwell’s oil, gas, and mineral interest executed ratifications of the lease. Production was obtained under the lease on the 80-acre tract in Block 8. The Donalds contended, and the trial court held, that the production on this 80-acre tract should be payable exclusively to the owners of the mineral interest on such tract, and that the royalty interests were not pooled or eommunitized. The Court of Civil Appeals reversed and said:

We think the effect of the lease together with the ratifications was to pool or communitize the royalty in the three tracts, and that each owner in either tract is entitled to the proportion of the royalty from any tract which his interest bears to the 162.7 acres.
* * * * * *
No intention to communitize the royalties would have been manifested had appel-lees excluded from the lease the mineral estate of the other parties, or had they executed a separate lease on Block 13. But they leased all the interests in the three tracts, which they had the right and power to do, and the owners of the other interests ratified appellees’ act. They thereby became parties to the lease as effectually as they would have been had they joined in its original execution. 321 S.W.2d at 605, 606.

The trial court correctly held that appel-lees are the owners of a .386500 part [½ X 463-8/6oo] of the royalties on oil, gas, and other minerals from Ruiz #1 well due and to become due from and after December 9, 1974 [the date of appellees’ ratification] under the Villarreal oil, gas, and mineral lease of June 14, 1968.

The judgment is affirmed.

      . The pooling provision authorizes pooling or unitization in units of 40 acres for oil, and 640 for gas. It is for a primary term of ten years, and is in the usual form of Commercial Producer’s 88 unless leases, which provide that the lease can be kept in force and effect by (1) timely paying the delay rental payments during the primary term, or (2) obtaining production during such term, and for so long thereafter as oil, gas, and other minerals are produced from said land or lands which said land is pooled. Under such lease one producing well in paying quantities on any portion of the lease would maintain the lease in force and effect as long as such production continues.

      . The estoppel theory finds support in the case of Nugent v. Freeman, 306 S.W.2d 167 (Tex.Civ.App.—Eastland 1957, writ ref’d n.r.e.). In Nugent, Freeman executed an oil and gas lease which covered a 120-acre tract and a 30-acre tract. The Nugents owned a non-participating royalty interest in the 30-acre tract. The lessee drilled and completed three oil wells on the 120-acre tract, but none on the 30-acre tract. The Nugents stood by with full knowledge of these facts for more than two years without ratifying the lease, and then brought a suit claiming a royalty interest in the entire lease. The court held that the filing of the suit came too late, and said: “They held this position for more than two years without attempting in any way to ratify the attempted pooling of the mineral interests by Freeman. They never did anything in the way of ratifying the pooling arrangement until long after the lease had been completely developed. * * * [I]f it should be held that by the execution of the lease which covered the entire 150 acres there was an offer by Freeman to pool the two tracts there is no showing that the Nugents ever accepted said offer. As has heretofore been stated, the filing of this suit after the lease had been fully developed is not a sufficient acceptance to meet the requirements of the law.” 306 S.W.2d at 170-171.


author: EVANS, Justice.

text:
    Arthur Keller BOURNE, III, Appellant, v. Patricia Carlene BOURNE, Appellee.
    No. 16942.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 10, 1977.
    Rehearing Denied Dec. 8, 1977.

      Thomas W. Moore, George D. Neal, Houston, for appellant.
    Vern J. Thrower, K. D. Keenan, Houston, for appellee.
   EVANS, Justice.

This is an appeal from a divorce decree. The sole issue is whether the trial court erred in awarding a 4.15 carat marquise cut diamond stone to Mrs. Bourne.

The diamond stone in question, then in its original mounting, had belonged to Mr. Bourne’s grandmother, Ethel Hollins Bourne, who died in New York. In October 1974, Mr. Bourne, as administrator of his grandmother’s estate pending in the Surrogate’s Court of Suffolk County, New York, caused the ring and other items of jewelry to be withdrawn from a custodian account in a New York bank and sent to him in Texas. After his engagement to Mrs. Bourne, but prior to their marriage in June 1975, he delivered possession of the ring to her, and she took the ring to a jeweler who mounted the stone in a new setting.

The trial court found that Mr. Bourne had made a gift of the ring to Mrs. Bourne, that he owned a 28⅛% interest in the diamond stone, and that Mrs. Bourne was entitled to the ring mounting and to Mr. Bourne’s 28⅛% interest in the diamond stone. The trial court concluded that since the ring had been a gift to Mrs. Bourne, she owned the ring “free and clear of all claims including attorney’s fees, inheritance or state taxes, and all claims of any nature”, but in its decree the trial court provided that the ring was to remain in the safe deposit box for a period of one year, subject to withdrawal upon order of the court or the Probate Court of Harris County, where ancillary administration proceedings had been filed in the estate of Ethel Hollins Bourne, deceased. The trial court’s decree further provided that Mrs. Bourne’s attorney might remove the ring for the purpose of having the stone removed from the mounting, but that the stone should then be returned to the safety deposit box, and that after the expiration of the one year period, Mrs. Bourne might have possession of the ring unless ownership had been otherwise established.

It is Mr. Bourne’s contention that the trial court did not have jurisdiction to determine his ownership in the diamond stone or to award his interest in the stone to Mrs. Bourne. He argues that the stone constituted an asset of his grandmother’s estate and that the beneficiaries of her estate were indispensible to any such determination and award.

The record contains authenticated copies of the proceedings in the Surrogate’s Court of Suffolk County, New York and in the Probate Court of Harris County, Texas, evidencing the pendency of administration proceedings with respect to the decedent’s estate. The 1974 final accounting filed by Mr. Bourne in the New York proceedings indicates Mr. Bourne’s share in the decedent’s estate to be 28V8% and proposes that the ring in question, together with other miscellaneous items of property “be divided in kind.” According to Mr. Bourne’s testimony, administration was still pending at the time of the divorce hearing and the assets of the estate had not been distributed.

The title of Ethel Hollins Bourne, deceased, passed to the beneficiaries of her estate immediately upon her death. Welch v. Trustees of Robert A. Welch Foundation, 465 S.W.2d 195 (Tex.Civ.App.-Houston [1st Dist.] 1971, writ ref’d n. r. e.). The fact that her estate was being administered in the probate court did not defeat the trial court’s authority to make an award of Mr. Bourne’s interest to Mrs. Bourne. Time Securities v. West, 324 S.W.2d 583 (Tex.Civ.App.-San Antonio 1959, writ ref’d n. r. e.). His undivided interest in his grandmother’s estate was a property interest which was subject to the debts and claims against his estate. Lozano v. Guerra, 140 S.W.2d 587 (Tex.Civ.App.-San Antonio 1940, no writ); McGriff v. Hazle, 201 S.W.2d 92 (Tex.Civ.App.-Eastland 1947, no writ); Littlefield v. Ungren, 206 S.W.2d 152 (Tex.Civ.App-Eastland 1947, writ ref’d n. r. e.). The trial court properly determined and considered all the respective property interests which constituted the parties’ marital estate. Section 3.63, Texas Family Code. In its decree it recognized that Mr. Bourne’s interest in the diamond stone was less than the entire interest, and its decree appropriately provided a time period within which the beneficiaries of the decedent’s estate might assert a claim to the diamond stone. Smyth v. Smyth, 198 Okl. 478, 179 P.2d 920 (1947); Trowbridge v. Trowbridge, 16 Wis.2d 176, 114 N.W.2d 129 (1962).

Mr. Bourne appeared only in his individual capacity in the divorce proceedings, and the beneficiaries were not named as parties to the divorce action. The fact that the beneficiaries were not parties to the divorce action did not deprive the trial court of its jurisdiction to determine the Bournes’ respective interests in the diamond stone and to order an appropriate disposition of that property. The trial court was required only to determine the extent to which the beneficiaries might be prejudiced by its decree and to shape its decree in such manner as to provide adequate protection for such claims as might be asserted by the beneficiaries of the decedent’s estate. Rule 39, Tex.R.Civ.P.; Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974). Williams v. Saxon, 521 S.W.2d 88 (Tex.Civ.App.-San Antonio 1975, no writ). Mr. Bourne’s first five points of error are denied.

Mr. Bourne next contends that the uncontroverted evidence established as a matter of law that he made no gift of the diamond ring to Mrs. Bourne. In reviewing this point, the evidence must be considered in the light most favorable to the trial court’s judgment. McDuff v. Howard, 430 S.W.2d 953 (Tex.Civ.App.-Amarillo 1968, writ ref’d n. r. e.). Mrs. Bourne testified that Mr. Bourne gave her the ring as an engagement ring prior to their marriage, and her testimony is corroborated by other witnesses who testified on her behalf. She testified that at the time Mr. Bourne gave her the ring it was in an old and worn setting and that he told her he had purchased the ring from his grandmother’s estate for the sum of $1,600.00. She stated that in reliance upon his representation, she took the ring to a jeweler and had the stone remounted in a new setting at a cost of $1,900.00; that Mr. Bourne had thereafter made payments totalling $1,300.00 in reduction of that expense. Mr. Bourne’s undivided interest in the ring is undisputed, and he was entitled to make a gift to Mrs. Bourne of such interest as he owned in the ring. Under the evidence presented, the trial court’s factual determination that the ring was a gift by Mr. Bourne to Mrs. Bourne must be sustained.

In his last point of error Mr. Bourne contends that the trial court erred in refusing to make certain findings of fact and conclusions of law which were requested by him. This point must also be denied. All of the requested findings were effectively determined by the findings and conclusions made by the trial court. Great American Reserve Ins. Co. v. Sumner, 464 S.W.2d 212 (Tex.Civ.App.-Tyler 1971, writ ref’d n. r. e.); Wentz v. Hancock, 236 S.W.2d 175 (Tex.Civ.App.-Austin 1951, writ ref’d).

The trial court’s judgment is affirmed.


author: COLEMAN, Chief Justice.

text:
    Ex parte Ronald David DECKERT, Relator.
    No. 17024.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Nov. 10, 1977.

      Patricia R. Lykos, Houston, for relator.
    John Lohmann, III, Houston, for respondent.
   COLEMAN, Chief Justice.

This is an original proceeding by which Ronald David Deckert seeks a discharge from imprisonment under a commitment order which was entered pursuant to the trial court’s finding of contempt for failure to make child support payments. The relator will be discharged.

In his petition for writ of habeas corpus the relator asserts that he was denied due process of law for the reason that the motion alleging contempt of court filed under Rule 308-A, Texas Rules of Civil Procedure, failed to give him adequate notice of the nature of the complaint. He asserts that the order of commitment is void because it recites that he was in violation of an order of the court which had been superseded by a different order prior to the date of the alleged acts of contempt. Finally he asserts that the commitment order is void for the reason that it directs the sheriff to detain him until he pays the sum of $660.00 in delinquent child support payments despite the fact that at the contempt hearing the evidence clearly established that it was not within his power to obtain that sum of money in order to comply with the order.

The Deckerts were divorced on February 21, 1975. The decree awarded $110.00 every two weeks for child support for the couple’s two children “until the child with respect to whom payments are made shall attain the age of eighteen”. This support order was subsequently modified on January 26, 1976 and on May 11, 1977. The modification order which was pronounced on May 11,1977 and signed on June 8,1977 provides for child support payments in the amount of $110.00 every other week beginning May 20, 1977 and continuing thereafter “until the youngest child reaches the age of eighteen years.” It also provides that Ronald David Deckert pay and be responsible for one-half of all medical and dental bills incurred by the children. Deckert was also ordered to pay $150.00 attorney fees and the court cost.

The motion -for contempt culminating in the order under attack recited that portion of the May 11 order relating to child support. The orders relating to Dec-kert’s duty to pay medical bills and attorney’s fees and costs was not referred to in the motion. The motion then states:

“That subsequent to the date of the Order Modifying Prior Order the respondent herein has failed and refused and still fails and refuses to comply with such Order Modifying Prior Order and has thereby disobeyed the said order of this honorable court.”

Nowhere in the motion was Deckert specifically charged with failure to make child support payments. He was specifically charged with a failure to comply with the specified order rather than with the portion thereof dealing with child support. The Supreme Court of Texas has held that in constructive contempt matters due process of law demands that before a court can punish for a contempt not committed in its presence, the accused must have full and complete notification of the subject matter, and the show cause order or other means of notification must state when, how, and by what means the defendant has been guilty of the alleged contempt. Ex parte Edgerly, 441 S.W.2d 514 (Tex.1969).

In the motion for contempt the relator was charged only with failing and refusing to comply with the order of May 11, 1977. Since that order contains three separate and distinct commands enforceable through contempt proceedings, relator could not determine definitely the charges against him. This case is therefore ruled by the Edgerly case where the relator was served with notice that they were charged with violating a writ of injunction. The affidavits by virtue of which the process in Edgerly was issued charged that the relators had violated a temporary restraining order “by picketing the Port Arthur Terminal, . . ..” Relator was not accorded due process of law. Ex parte Edgerly, supra; Ex parte Davis, 450 S.W.2d 97 (Tex.Civ.App.—Houston [14th Dist.] 1970).

In the order of commitment the trial court recited that relator was found to be in contempt of court “by reason of his failure and refusal to make the payments of child support heretofore ordered in the amount of $660.00 in defiance of the terms of the decree hereinabove referred to . . ..” The decree “hereinabove referred to” was the judgment of the court entered on the 21st day of February 1975. This order had been supplanted by a subsequent order. The notice alleged a violation of the subsequent order. It appears from the other portions of the record that the court made a mistake in its finding that the relator violated the February 21, 1975 order. The mistake has not been corrected and relator was not given notice that he was charged with a violation of that particular order. Relator has demonstrated that the order which he has been found to have violated was not a valid order at the time of the hearing. Judgment of contempt as shown by the writ of commitment is void. Ex parte Parr, 505 S.W.2d 242 (Tex.1974); Ex parte White, 149 Tex. 155, 229 S.W.2d 1002 (1950); Ex parte Hardy, 531 S.W.2d 895 (Tex.Civ.App.—Dallas 1975).

In view of the frequency with which we are confronted with the problem, we consider it proper to discuss the other contention presented.

Where it is not within the power of a person to perform the act which will purge him from contempt, the court is without power to imprison him for an indefinite term for a prior committed act. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145 (1948). Relator has the burden to show that the evidence adduced at the hearing conclusively establishes his inability to perform. Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251 (1955).

The relator testified that since the date on which the child support payments were set both he and his wife had lost their jobs. He was earning a gross salary of $150.00 per week at the time of the hearing in this case, and his wife was collecting $63.00 per week unemployment compensation. Prior to the hearing and the loss of his job he had purchased a home, the monthly payments on which was $573.00. He had purchased a car, the payments on which were $175.00 per month. He testified that he had numerous charge account debts which he was unable to pay. He testified that he was delinquent in all of his accounts; that he owed money to two banks and a finance company and was delinquent in his payments to each of those institutions. Both his gas and lights had been cut off for failure to pay bills. He testified that his regular monthly payments amounted to more than $2,000.00, and that his income combined with that of his wife was less than $1,000.00. He testified that he had attempted to borrow from two banks and was unable to do so. He testified to the conclusion that he was unable to borrow the money. There is nothing in the record to suggest that he had any property other than the house and the car. The house was occupied by relator, his wife, and her four children as a homestead. Neither it nor the automobile are property which would be subject to forced sale for debt. There is no testimony concerning the value of the car or the relator’s equity therein.

We consider that the principle to be applied in a contest of an affidavit alleging inability to pay costs of court should be applied in cases such as this. The general rule to be followed is set forth in Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19 (Tex.Comm’n App.1942), in these words:

“Does the record as a whole show by a preponderance of the evidence that the applicant would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good-faith effort to do so?”

In that case the court stated that if the applicant owns an automobile or other valuable property, “although exempt from execution,” which he could mortgage or otherwise dispose of thereby securing the necessary funds without depriving himself or his family of the necessities of life, he should be required to pay the costs, or give security therefor. The burden is on the relator to show that he is unable .to secure the necessary funds.

Since this proceeding is a collateral attack on contempt judgment, we consider that relator must show without substantial contradiction in the record that he was unable at the time of the hearing to do the act required by the judgment as a condition for release from custody. Relator’s failure to show that he had no substantial equity in the car precludes a holding that he is unable to make the payment which would purge him of the contempt charge.

Since we find that the commitment order is void, it is ordered that relator be discharged from custody.


author: PEDEN, Justice.

text:
    Pauline B. HOUSTON, Appellant, v. MOORE INVESTMENT COMPANY, Appellee.
    No. 16946.
    Court of Civil Appeals of Texas, Houston (First Dist.).
    Nov. 10, 1977.

      Sallas, Meriwether & Renfro, Phillip M. Renfro, Crockett, for appellant.
    Singleton &■ Singleton, Robert H. Singleton, Houston, for appellee.
   PEDEN, Justice.

Moore Investment Company sued Mrs. Pauline B. Houston for half of a $9,825 bonus payment she received when she executed a mineral lease on land in which Moore had reserved a one-half mineral interest. The trial court overruled Mrs. Houston’s motion for summary judgment but granted that of Moore Investment. We affirm.

The conveyance from Moore Investment to R. D. Houston, the deceased husband of Pauline Houston, contained this provision:

“There is reserved and excepted from this conveyance, and Grantor hereby retains the title to, an undivided one-half interest in all oil, gas or other minerals in, on or under the lands hereinabove described, but the Grantee herein shall have the right and privilege of executing an oil, gas and mineral lease on such land, without the joinder of Grantor, with the understanding that any such lease shall provide for a royalty to the owners of the land in an amount not less than one-eighth of the minerals to be produced from said land, and further provided that Grantor shall be entitled to one-half of any such royalties retained in such lease.”

Appellant argues that any intention of the parties to have Moore Investment share in the bonus payments was negated by Moore Investment’s failure to specify its right to bonus payments while specifying its right to receive royalties. Further, that Moore’s reservation to itself of title to an undivided one-half interest in the minerals would have, without more, entitled Moore to half of all royalty payments and the later specification of its right to receive such payments was unnecessary. Therefore, she says, the only purpose of this later specification of Moore’s right to receive “one-half of any such royalties retained in such lease” was to exclude (by implication) some of its other rights not specified: namely, bonus payments.

It appears to us that the grantor surrendered only one incident of ownership, the right to execute an oil, gas, and mineral lease, a right known as the executive right. A grant of the executive right does not deprive the grantor of the right to participate proportionally in bonuses, rentals and royalties. Burns v. Audas, 312 S.W.2d 417 (Tex.Civ.App.1958, no writ). A grantor who reserves half of the minerals retains half of all the incidents of ownership inherent in the minerals except those specifically granted. Martin v. Snuggs, 302 S.W.2d 676 (Tex.Civ.App.1957, writ ref. n. r. e.).

Appellant argues that the court erred in overruling her motion for summary judgment because the decision in Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953) establishes her right to judgment as a matter of law. In that case, Scharbauer conveyed real property to Benge by general warranty deed. Both parties understood that there was a one-fourth mineral interest outstanding in a third party, but it was not mentioned in the deed. The deed contained: 1) a reservation of a 3/sths mineral interest to the grantor and 2) a provision in an executive clause for payment of %ths of all bonuses, rentals and royalties to the grantors. The supreme court held that the warranty extends to what the deed purports to grant, the surface and the 6/sths interest in the minerals, but does not extend to the provision in the executive clause that the grantor’s share in bonuses, rentals and royalties shall be %ths. The court thus held that the grantor was left only a ⅛⅛ mineral interest but that the express agreement that the grantors receive s/sths of all bonuses, delay rentals and royalties was merely a limitation upon the power of the grantee to execute leases and was binding on all parties.

“The fractional part of the bonuses, rentals and royalties that one is to receive under a mineral lease usually or normally is the same as his fractional mineral interest, but we cannot say that it must always be the same. The parties owning the mineral interests may make it different if they intend to do so, and plainly and in a formal way express that intention.” Benge v. Scharbauer, supra at 169.

In our case there was no clear expression of the parties’ intention to modify the reservation of the mineral interest. The grantor simply gave the grantee the executive right to execute an oil, gas and mineral lease on the land with the understanding that a royalty of at least ⅛⅛ was to be retained, then restated its right to half of whatever fractional part of royalties the owners were to receive in any lease executed by the grantee.

In her second point appellant asserts error in the court’s granting appellee’s motion for summary judgment. She argues that the deed is ambiguous because it grants a half interest in the entire mineral estate while providing that “Grantor shall be entitled to one-half of any such royalties retained in such lease” but does not mention bonuses or rentals.

A contract is not ambiguous if it is so worded that it can be given a certain or definite legal meaning or interpretation. Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977, 980 (1941). This deed is not ambiguous, so it must be given the legal effect resulting from a construction of the language contained within the four corners of the instrument.

“if possible, the court must construe the language of the deed so as to give effect to all provisions thereof and will harmonize all provisions therein, and not strike down any part of the deed, unless there is an irreconcilable conflict wherein one part of the instrument destroys in effect another part thereof.” Benge v. Schar-bauer, supra.

All parts of the deed in the case at bar can be given legal effect. Appellant argues that the express grant of a right to half of the royalties impliedly excludes bonuses and all other incidents of mineral ownership which would normally flow from the general grant. A similar argument was rejected and a somewhat similar recital was held to be nothing more than a statement of the legal effect of the transfer of the mineral title in Alfrey v. Ellington, 285 S.W.2d 383, 387 (Tex.Civ.App.1955, writ ref., n. r. e.). In our case Moore Investment reserved an interest in half of the mineral estate with no express exception and was therefore entitled to half of the bonus payments. There was no ambiguity and no fact issue which would preclude the granting of appellee’s summary judgment motion.

In appellant’s final point of error she contends the trial court refused to allow her to file an amended answer 25 days after the summary judgment hearing. The trial court’s docket sheet reflects that the parties’ motions for summary judgment were presented and the plaintiff’s motion granted on February 14,1977. Neither the docket sheet nor the judgment entered on March 16, nor anything else in the record shows that the appellant’s motion for leave to amend her answer, filed on March 11, 1977, was ever presented to the trial judge. The point does not present error.

Further, the allegation of ambiguity was before the trial court in the defendant’s affidavit.

Lastly, even if the amendment had been allowed, it would not have affected the judgment since the deed is not ambiguous, so any error would be harmless. Harberson v. Lawhon, 518 S.W.2d 840 (Tex.Civ.App.1975, no writ).

Affirmed.