source: Caselaw Access Project

author: DANIEL, Justice. DOUGHTY, Justice

license: Public Domain

text:
    U. S. ENTERPRISES, INC., Petitioner, v. Dean I. DAULEY et al., Respondents.
    No. B-5436.
    Supreme Court of Texas.
    March 31, 1976.
    Sears, Parker, Quisenberry & Spurlock, Dean Spurlock, Fort Worth, for petitioner.
    Thorne, Thorne & Robertson, Inc., Michael A. Robertson, Grand Prairie, for respondents.
   DANIEL, Justice.

This is an appeal from a summary judgment holding that under the Statute of Frauds a written purchase contract purporting to cover 600 acres of land in three specifically named surveys in Wise County did not sufficiently describe two tracts in a fourth and different survey.

Petitioner, U. S. Enterprises, sued Coke L. Gage and wife for specific performance of a contract to sell approximately 600 acres of land in the J. G. Bullock, David Moses and J. H. Moore Surveys of Wise County, for approximately $750,000. The contract was dated July 17, 1972, and this suit was filed on May 24, 1973. The Gages denied the validity of the contract, asserting among other defenses that after they had signed the contract, and without their consent, U. S. Enterprises inserted therein the sum of $2,000 instead of an agreed minimum of $25,000 as earnest money; that the agreed minimum earnest money was not paid; and that the contract was unenforceable as to any lands because the descriptions therein were so uncertain, incomplete and indefinite that they violate the Statute of Frauds. While that suit was pending, on July 13,1973, the Gages sold 30.621 acres in the A. J. Walker Survey of Wise County to Dauley Enterprises. The tract, hereinafter referred to as 30 acres, was described in the Dauley deed as a single tract with metes and bounds which indicate that it is triangular in shape, bounded on the south by the north line of Thompson Street in the City of Decatur, on the northeast by U. S. Highway 287, and on the west by F. M. Road 51.

U. S. Enterprises, claiming that the 30 acres was part of the land described in its contract'with the Gages, interpleaded Dau-ley Enterprises, Dean I. Dauley, and others (hereinafter referred to as Dauley), in its suit against the Gages and sought to set aside the Dauley deed. The trial court granted summary judgment for Dauley on the ground that the contract between U. S. Enterprises and the Gages did not as a matter of law adequately describe any property sold by the Gages to Dauley. Thereafter, the trial court ordered a severance of U. S. Enterprises’ cause of action against Dauley from the remainder of the main suit and entered a final judgment thereon. U. S. Enterprises appealed from the summary judgment in favor of Dauley but not from the order of severance. The court of civil appeals affirmed. 524 S.W.2d 339. We affirm.

On an appeal from a summary judgment, the facts established by the summary judgment proof must be construed in the light most favorable to the non-movant. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965). When so viewed, principally from the affidavit of Frank E. Snell, president of U. S. Enterprises, it appears that Snell and Gage drove by the ten parcels of land to be included in their proposed purchase contract in 1972; that tract 9, being listed as 26 acres, more or less, known as the Harvey Burress property, and tract 10, listed as 6 acres, more or less, known as the Decatur Baptist College property, were represented as being located within the 30 acre triangle later purchased by Dauley; that specific legal descriptions were not available when the contract was signed, but a map prepared by a U. S. Enterprises employee was attached as Exhibit A, with various sections thereon colored to indicate property included in the contract; that before the contract was signed, Snell and Gage “discussed and went over the map . . . for the purpose of being certain which property was covered . and it was specifically understood that the triangular piece of property bordered on the northeast side by U. S. Highway 287, on the west side by State Farm to Market Road 51, and on the south by West Thompson, was a portion of the property included in the contract.” On July 12, 1973, the day before Dauley completed his purchase of the triangle from Gage, Snell talked with Dauley by telephone and advised him that the property was claimed by him to be included in the U. S. Enterprises-Gage contract and was subject to the pending litigation and a lis pendens notice on file in Wise County. Although the latter had no reference to or copy of the colored map, Exhibit A, and the copy attached to Plaintiff’s Original Petition was without coloring, Dauley had actual notice that U. S. Enterprises was claiming to have a purchase contract on the triangle before he purchased it from the Gages. Thus we do not have before us the question of the rights of an innocent purchaser. As to the validity or invalidity of the description in the U. S. Enterprises-Gage contract, Dauley occupied the same position as the Gages insofar as the land in the triangle was concerned.

Question on Summary Judgment

In his motion for summary judgment, Dauley contended that neither the U. S. Enterprises-Gage contract, the pending lawsuit, nor the lis pendens described the 30 acres which Dauley purchased from the Gages. That also was the Gages’ contention in their pleading of inadequate description under the Statute of Frauds, which was the only defense of the Gages that was available to Dauley on his motion for summary judgment. The sole question, presented, therefore, is whether the summary judgment proof established as a matter of law that the written descriptions of tract 9 and tract 10 in the U. S. Enterprises-Gage contract (including the map) were insufficient under the Statute of Frauds to locate such tracts with reasonable certainty as comprising the triangle in the A. J. Walker Survey. The sufficiency of the description of the remainder of the 600 acres in the U. S. Enterprises-Gage contract is not before us. The relevant provisions of the contract are as follows:

That we, Coke L. Gage and wife, Donnie Gage (hereinafter called Seller, whether one or more) hereby sell and agree to convey to U. S. Enterprises, Inc., or its nominee (hereinafter called Purchaser), and Purchaser hereby buys and agrees to pay for 600 acres of land, more or less, out of the J. G. Bullock Survey, Abstract No. 79, the David Moses Survey, Abstract No. 537, and the J. H. Moore Survey, Abstract No. 538, in Wise County, Texas, being generally described in ten (10) tracts as follows:

(1) 115.012 acres known as the Foster Estate property;
(2) 157.483 acres known as the Bur-ress property;
(3) 193.97 acres known as the McDer-mitt property;
(4) 26.92 acres known as the Brown property;
(5) 21 acres, more or less, known as the Annie Mae Stevens property;
(6) 15 acres, more or less, known as the Elmer Wallace property;
(7) 32.34 acres, known as the Stevens property;
(8) 18.57 acres known as the Wallace property;
(9) 26 acres, more or less, known as the Harvey Burress property; and
(10) 6 acres, more or less, known as the Decatur Baptist College property;
Said property marked on Exhibit “A” attached hereto and colored in green with the Bullock property colored in orange. Said contract includes all of the land owned in said surveys above described exclusive of the 200 acres in the J. H. Moore Survey described in Paragraph 15 hereof. It is understood that said lands are to be conveyed by accurate ground survey prepared by registered public surveyor or surveyors which said survey shall be furnished at Seller’s expense pri- or to closing.

Below is a copy of the relevant portion of the map attached to the contract as Exhibit A. The Transcript reveals no coloring on any of the copies attached to the four pleadings filed by U. S. Enterprises in the trial court. The only copy in the record with the coloring reproduced as on the original contract is the copy attached to the affidavit of Frank E. Snell. We have drawn diagonal lines to denote the areas which were colored on the Snell copy, all being in green except the C. L. Gage 163.5 acres, which was in orange.

Test of Sufficiency of the Description

Both parties agree that the 30 acres in question purchased by Dauley from the Gages lies in the A. J. Walker Survey, Abstract No. 860. Dauley prevailed in the lower courts on undisputed proof of this fact and that the written portion of the contract between U. S. Enterprises and the Gages did not list or refer to any of the property as being in the A. J. Walker Survey. The typed description on the first page of the U. S. Enterprises-Gage contract specifically refers to “600 acres of land, more or less, out of the J. G. Bullock Survey, Abstract No. 79, the David Moses Survey, Abstract No. 537, and the J. H. Moore Survey, Abstract No. 538, in Wise County, Texas, being more generally described in ten (10) tracts as follows:” Following the list of tracts and the reference to “said property” being marked on Exhibit A, is another general descriptive statement restricted to the named surveys. It reads: “Said contract includes all of the land owned in said surveys above described exclusive of the 200 acres in the J. H. Moore Survey described in Paragraph 15 hereof.” There is no mention whatever of the A. J. Walker Survey either in the typed portion of the contract or on the attached map marked Exhibit A.

U. S. Enterprises counters with the argument that the green colored triangular area on the right-hand side of Exhibit A is in the A. J. Walker Survey and that omission of the name of the survey is not fatal because tracts 9 and 10 can both be located within that triangle through aid of the map. The question is whether that is possible from the means or data furnished within the contract, including Exhibit A, without resorting to impermissible parol evidence. In that connection, neither the face of the written contract nor the map contain any words, names, numerals, or other writing indicating that the triangle is in the A. J. Walker Survey or that tracts 9 and 10 are located within all or part of the triangle. We are supplied with these asserted elements of location from extrinsic evidence, primarily the affidavit of Frank E. Snell, who stated that such was the understanding of the parties when they negotiated and signed the contract. This brings us back to the question of whether the summary judgment proof established as a matter of law that the written descriptions of tracts 9 and 10 in the contract (and map) were insufficient under the Statute of Frauds to permit identity of location by extrinsic evidence.

The rule to be applied in determining the sufficiency of a description of land in an action for specific performance has been stated many times by this Court. Apparently the most generally cited statement of the rule since 1945 was written by this Court in Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945), as follows:

“In the absence of equities removing the case from the operation of the statute of frauds, which do not here exist, it is well settled that before a court will decree the specific performance of a contract for the sale of land, or entertain a suit for damages for the breach thereof, the written agreement or memorandum required by the statute must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties; and no part of the instrument is more essential than that which identifies the subject matter of the agreement. Jones v. Carver, 59 Tex. 293, 295.
“In so far as the description of the property is concerned the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Morrison v. Dailey, Tex. Sup., 6 S.W. 426; Osborne v. Moore, 112 Tex. 361, 247 S.W. 498.”

In the Wilson case, specific performance was denied because of an insufficient description. The most detailed of two memo-randa described the property as “a brick duplex and garage apt, located at 4328-30 Cedar Springs [Road] . . . ‘Room at back not included.’ ” Among other reasons for declaring the description insufficient, the Court said “[t]he ownership of the property is left in conjecture, and where the identity of the property is doubtful, ownership becomes an important element. . It is not a necessary inference that Mrs. Fisher owned the property simply because she contracted to sell it.” No lot or block was given. The Court continued: “Although reference is made to ‘4328-4330 Cedar Springs Road,’ the location of such road or street rests entirely in parol. In fact every essential element of the description is left to inference or to be supplied by parol. Such description is palpably insufficient to support a suit either for specific performance or for damages.”

One of the more recent statements of the rule by this Court was in Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972). There, as here, the intention of the parties was clear, but it was not adequately expressed in the contract. Specific performance to convey a 12 acre triangular tract in the northwest corner of the Jefferson McGrew Survey was denied. It was described as lying north of a line running from the northeast corner of a specific 100 acre tract east to a point in the west boundary line of Highway No. 277. We held that the contract contained no means or data in the description to tell the northerly course or distance to run after intersecting the west boundary of Highway 277, and that neither course nor distance was given for the north and west lines. In refusing to permit extrinsic evidence to supply the highway and other boundaries intended by the parties, the Court said:

“The record leaves little doubt that the parties knew and understood what property was intended to be conveyed as Second Tract. Moreover, a surveyor, by a search of abstract records and on directions given by an attorney, located the property on the ground and made a plat which was introduced in evidence and shows its location and boundaries. However, the knowledge and intent of the parties will not give validity to the contract, Rowson v. Rowson, 154 Tex. 216, 275 S.W.2d 468, 470 (1955); and neither will a plat made from extrinsic evidence. Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980, 984 (1948). The correct rule relating to admissibility of parol evidence to aid descriptions in contracts for the conveyance of land is thus stated in Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945):
“ ‘The certainty of the contract may be aided by parol only with certain limitations. The essential elements may never be supplied by parol. The details which merely explain or clarify the essential terms appearing in the instrument may ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum. O’Herin v. Neal, Tex.Civ. App., 56 S.W.2d 1105, writ refused.’ (Emphasis ours.)”

Reliance Upon the Attached Map

U. S. Enterprises does not contend that the description in its written contract (without aid of the map) contains in itself the means or date by which tracts 9 and 10 can be located with reasonable certainty. Obviously, the written portion of the contract is limited to ten tracts located in the three named surveys, and nothing therein or upon the map indicates which of the ten tracts are within the colored triangle. Descriptions without boundary lines, beginning points, or other means by which the acreage can be located have often been held to be insufficient to meet the Statute of Frauds. Morrow v. Shotwell, supra; Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948); Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264 (1886). Exceptions not applicable here are discussed in Wilson v. Fisher, supra, 188 S.W.2d at 153; Holloway’s Unknown Heirs v. Whatley, 133 Tex. 608, 131 S.W.2d 89 (1939); Smith v. Westall, 76 Tex. 509, 13 S.W. 540 (1890), and Texas Consolidated Oils v. Bartels, 270 S.W.2d 708 (Tex.Civ.App.1954, writ ref’d).

U. S. Enterprises relied upon the attached map as curing the omission of the name of the survey and as furnishing a descriptive means by which tracts 9 and 10 could be located. An attached map becomes a part of the written contract and can aid a defective written description if the map contains enough necessary descriptive information. See for instance Pritchard v. Burnside, 140 Tex. 212, 167 S.W.2d 159 (1943), where missing calls and distances were supplied from a partition map referred to in the deed, and Lewis v. East Texas Finance Co., 136 Tex. 149, 146 S.W.2d 977 (1941), where a missing first call in a written lease was supplied by an attached map which had all of the course and distance calls of the tract clearly set forth along the boundary lines. Whether a map is helpful in remedying descriptive defects of the contract depends on whether the missing details are shown on the map. See the Lewis map, 146 S.W.2d at 979, and compare with the map in this case.

The map attached to the U. S. Enterprises-Gage contract has nothing written, printed or colored on it which supplies any aid as to the name or location of the Walker survey or the numbered tracts of the contract claimed to be within the triangle of the Walker Survey. The green shaded triangle has no identifying name or number on it which corresponds with one or more of the ten tracts listed in the written contract. Its size is not indicated on the map. It shows no course or distance calls along its lines. Even if the contract had been reformed to include the A. J. Walker Survey, would there be enough means or data in the contract or on the map to locate one or more of the ten listed tracts as comprising the triangle in the Walker Survey? We think not. Surely, the shaded portion of a map which does not refer to the disputed property in any other way would not amount to a sufficient description of two separate tracts of land which neither the contract nor any writing on the map show to be encompassed therein. By extrinsic evidence, U. S. Enterprises sought to show that tracts 9 and 10 are located in the shaded triangle. Even if such proof were permissible by parol evidence, it still does not indicate in what portion of the triangle tract 9 lies. Neither does it give any location of tract 10. Does tract 9 lie on the north or south, or in the east or west side of the triangle? What lines of the triangle form one or more of the lines of tract 9 and tract 10? None of these answers on essential locative means and data can be found in the contract or on the map. Not a single beginning point or line of either tract 9 or 10 is furnished. We held in Morrow v. Shotwell, supra, that the description was defective because course and distance of the east line along the highway and courses and distances of the west and north lines were not stated in the written contract. Here the location, course and distance of no line of tract 9 and no line of tract 10 is written either in the contract or on the map. It would do violence to the Statute of Frauds to permit extrinsic evidence to furnish these essential descriptive elements.

This Court had the same situation in a specific performance contract in Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948), “when the shapes respectively of the two pieces of land” and the course and distances of their boundary lines were not stated in the contract. The description was “four (4) acres out of the East end of a ten-acre block on the P. Chireno Survey . Smith County, Texas, located on the North side of the Kilgore highway.” The Court said the description “contain[ed] nothing indicating the shape of the block [ten acres] or the courses and lengths of its border lines or those of the four acres.” It was contended that the identity of the land was clear in the minds of the parties and on a plat prepared subsequent to the contract, and that the land could thus be located with certainty by extrinsic evidence. In holding that such a “resort to oral evidence . would be passing title to land by parol ‘in violation of the statute,’ ” and would thus expose the contract “to all the evils which the statute was intended to remedy,” the Court said:

“. . . The reasons why the plat and parol evidence are not admissible are clearly and succinctly expressed in Jones, Cyclopedia of Real Property Law, Vol. 1, p. 329 as follows: ‘Since the description, or the key thereto, must be found in the language of the contract, the whole purpose of the statute of frauds would be frustrated if parol proof were admissible to supply a description of land which the parties have omitted from their writing.

The Effect of Naming Specific Surveys

U. S. Enterprises argues that the omission of the name of the Walker Survey is not fatal to the description. In fact, it contends that the identification of land by surveys is becoming of less importance in conveyancing and land descriptions. We disagree. Throughout the history of land law in Texas, our cases have stressed the importance of identifying land as being within a certain league, labor, or survey. The practice is still an important aid to abstractors, title examiners, and tax assessor-collectors who maintain their plat books and other records under the names of leagues, surveys, and city block numbers. We recognize that the rule has its exceptions. Under certain circumstances descriptions have been upheld without the naming of a specific survey. See Morrison v. Dailey, 6 S.W. 426 (Tex.1887); Fulton v. Robinson, 55 Tex. 401 (1881); Eldredge v. Godwin, 263 S.W.2d 598 (Tex.Civ.App.1953, writ ref’d n. r. e.); Sorsby v. Thom, 122 S.W.2d 275 (Tex.Civ.App.1938, writ dism’d); Dyer v. Winston, 33 Tex.Civ.App. 412, 77 S.W. 227 (no writ), and Hinkle v. Hays, 162 S.W. 435 (Tex.Civ.App.1913, no writ); Lange, 5 Texas Practice, Land Titles, § 771, 182-188. Compare Phillips v. Burns, 151 Tex. 614, 252 S.W.2d 927 (1952).

The description in this case, however, is not without a specifically named survey. Rather, the contract names three specific surveys, thus restricting the property actually covered by the contract to the surveys named. It should be remembered that no reformation was sought by U.S. Enterprises to correct any mutual mistake as to the names of the surveys or other descriptive deficiencies. Thus, throughout this case we are in the position of interpreting the effect of what the parties expressed in their written contract (and attached map) rather than what they may have intended to express. See Strong v. Garrett, 148 Tex. 265, 224 S.W.2d 471 (1949); Davis v. George, 104 Tex. 106, 134 S.W. 326 (1911); Stone v. Williams, 358 S.W.2d 151 (Tex.Civ.App.1962, writ ref’d n. r. e.), and Texas Osage Cooperative Royalty Pool v. Colwell, 205 S.W.2d 93 (Tex.Civ.App.1947, writ ref’d n. r. e.).

In Gage v. Owen, 435 S.W.2d 559 (Tex. Civ.App.1968, writ ref’d n. r. e.), it was claimed that a deed to “our undivided interest in the estate of B. B. Ball, deceased, out of the William Marlett Survey” was enlarged to cover other lands by a phrase “being the same land conveyed to B. B. Ball by W. P. Kennedy ... by deed recorded in Vol. 69, page 59, Montague County, Deed Records.” The Court treated the phrase “out of the William Marlett survey” as a restriction on the description of the property conveyed by the first tract described in the deed since it was the only survey mentioned therein. The second tract was described as “The southwest quarter of the W. R. Powell Survey,” when the grantors actually owned no interest in that quarter of the survey but did own and intended to convey the northeast quarter of the survey. The Court held that since limitations had run on reformation “the deed must be considered as written.” The court added:

“It is not the unexpressed intention which the parties may have had concerning the subject matter of their transaction which is of controlling effect, but rather the intention which by said instrument they did express. The real intention is immaterial if not expressed.”

A similar holding was made in Gore v. Cunningham, 297 S.W.2d 287 (Tex.Civ.App. 1956, writ ref’d n. r. e.), in which 147 acres in the O. C. Nelson League in Hardin County was described as being in the adjoining G. W. Brooks League in a deed to W. J. Gore in 1871. Gore went into possession of the property in the Nelson League and lived on it long enough to acquire limitation title, conveying the land in 1896 to Jesse Moss as 147 acres in the G. W. Brooks League, with the same description as in Gore’s 1871 deed. The Court held that these deeds did not convey the land in controversy in the O. C. Nelson League “because they did not in fact describe or mention the land in the Nelson League.” In that case the court of civil appeals refused to accept stipulations and admissions of the parties contrary to its holding as a matter of law that no property in the Nelson League passed under a description calling for the G. W. Brooks League. See also Minor v. Powers, 87 Tex. 83, 26 S.W. 1071 (1894), and Scheller v. Groesbeck, 231 S.W. 1092 (Tex.Com.App. 1921, judgt adopted).

Although the repugnancy between the expressed and unexpressed intent in most of the above cases was attempted to be shown by extrinsic evidence, the holdings are in accord with the general rule applicable to inconsistencies which appeal within a written instrument relating to land. All parts of a written instrument must be harmonized and given effect if possible, but in case of a conflict the more specific provisions will control over general expressions which are worded as being applicable to the same land. See Cullers v. Platt, 81 Tex. 258, 16 S.W. 1003 (1891); Scheller v. Groesbeck, 231 S.W. 1092 (Tex. Com.App.1921, judgt adopted); Lange, 5 Texas Practice, Land Titles § 776, 211-218.

Conclusion

In the U. S. Enterprises-Gage contract there are three rather general descriptions, including the map, all of which are said in the written contract to apply to the ten listed tracts of approximately 600 acres of land in the Bullock, Moses and Moore Surveys of Wise County. The only repug-nancy is that the map, recited as marking “said property,” includes a green shaded triangle which is shown by extrinsic evidence to be in the A. J. Walker Survey. We hold that this shaded area, being inconsistent with all of the other descriptive calls, cannot prevail over the specifically named surveys so as to include land in an unnamed survey.

Even if the Walker Survey had been named in the written contract or on the attached map, the shaded triangle which does not refer to the disputed property in any other manner is not within itself a sufficient description of the land in question. It does not supply the means or data by which tracts 9 and 10 may be reasonably located without resort to extrinsic evidence prohibited by the Statute of Frauds.

We hold that the summary judgment proof shows as a matter of law that the U. S. Enterprises-Gage contract of July 17, 1972, did not sufficiently describe the 30 acres in question to sustain a judgment for specific performance against the Gages as to that particular tract, and that the trial court properly granted summary judgment for Dauley.

Accordingly, the judgments of the courts below are affirmed.

DOUGHTY, J., dissents, and POPE, REAVLEY and McGEE, JJ., join.

DOUGHTY, Justice

(dissenting).

I respectfully dissent.

The sole question before the Court in this case is whether the trial court correctly held that the description of a certain tract of land in a contract for its sale does not meet the requirements of Tex.Bus. & Comm.Code Ann. § 26.01 (1968), the Statute of Frauds, as a matter of law. The description in question is part of a contract by which Coke L. Gage agreed to sell certain property in Wise County to U. S. Enterprises, Inc. U. S. Enterprises has sued Gage for specific performance of this contract. The proof submitted on summary judgment, construed in the light most favorable to U. S. Enterprises, the non-movant for summary judgment, reveals the following: while U. S. Enterprises’ suit against Gage was pending, Frank E. Snell, the president of U. S. Enterprises, learned that Dean I. Dauley was negotiating with Gage for the purchase of a tract of land of approximately thirty acres in Wise County, which tract Gage had agreed to sell to U. S. Enterprises under the contract in litigation. The day before Gage deeded this thirty-acre tract to Dauley, Snell informed Dauley by phone that he was claiming that the property was included in his contract with Gage. After Snell learned that Gage and Dauley had consummated their sale, he joined Dauley in his suit against Gage, seeking to set aside the sale. Dauley moved for summary judgment, contending that the U. S. Enterprises-Gage contract was unenforceable as to the thirty acres because it did not comply with the Statute of Frauds’ requirement that the property be described in the contract with reasonable certainty. The trial court granted Dauley’s motion for summary judgment, and, after a severance, U. S. Enterprises has appealed that ruling.

The relevant provisions of the U. S. Enterprises-Gage contract are as follows:

That we, Coke L. Gage and wife, Donnie Gage (hereinafter called Seller, whether one or more) hereby sell and agree to convey to U. S. Enterprises, Inc., or its nominee (hereinafter called Purchaser), and Purchaser hereby buys and agrees to pay for 600 acres of land, more or less, out of the J. G. Bullock Survey, Abstract No. 79, the David Moses Survey, Abstract No. 537, and the J. H. Moore Survey, Abstract No. 538 in Wise County, Texas, being generally described in ten (10) tracts as follows:
(1) 115.012 acres known as the Foster Estate property;
(2) 157.483 acres known as the Burress property;
(3) 193.97 acres known as the McDer-mitt property;
(4) 26.92 acres known as the Brown property;
(5) 21 acres, more or less, known as the Annie Mae Stevens property;
(6) 15 acres, more or less, known as the Elmer Wallace property;
(7) 32.34 acres, known as the Stevens property;
(8) 18.57 acres known as the Wallace property;
(9) 26 acres, more or less, known as the Harvey Burress property; and
(10) 6 acres, more or less, known as the Decatur Baptist College property;
Said property marked on Exhibit “A” attached hereto and colored in green with the Bullock property colored in orange. Said contract includes all of the land owned in said surveys above described exclusive of the 200 acres in the J. H. Moore Survey described in Paragraph 15 hereof. It is understood that said lands are to be conveyed by accurate ground survey prepared by registered public surveyor or surveyors which said survey shall be furnished at Seller’s expense pri- or to closing.

Exhibit A, attached to the contract, was a sketch of the property to be conveyed. Below is the relevant portion of that sketch, with the parts which were colored in the original sketch designated by diagonal lines (the tract labeled “163.5 C. L. Gage” was colored in orange, the rest green):

The tract which Dauley purchased from Gage is all that property lying within the triangle created by the intersection of Highway 287 and 81, Highway 51 and West Thompson. This tract is visible on the right-hand portion of the sketch reproduced above. It is uncontested that U. S. Enterprises and Gage intended to include this triangle as part of the property to be conveyed under their contract of sale. Frank Snell states in his affidavit in opposition to Dauley’s motion for summary judgment that this triangle encompasses the last two tracts described in the written portion of the contract: “(9) 26 acres, more or less, known as the Harvey Burress property,” and “(10) 6 acres, more or less, known as the Decatur Baptist College Property.” There is no evidence to the contrary in the summary judgment proof. Both parties agree that this triangle lies in the A. J. Walker Survey, which is not mentioned in the contract.

The issue to be decided is whether the summary judgment proof establishes as a matter of law that the description of the triangular tract in the U. S. Enterprises-Gage contract does not comply with the Statute of Frauds’ requirement that all contracts for the sale of land be in writing. We are not asked to decide whether the U. S. Enterprises-Gage contract must fail in its entirety because of any insufficiency in the description of other property included in the contract. We must assume, therefore, that the contract can be enforced as to any part of the property intended to be conveyed whose description is sufficient, even though the description of other property may be insufficient to locate it with reasonable certainty. Nor must we decide whether the description of the thirty acres is in fact sufficient under the Statute of Frauds. There may be reasons to find the description insufficient which are not revealed by the summary judgment proof. The only issue before us is whether the summary judgment proof establishes that the description of the thirty-acre tract is insufficient as a matter of law. If not, then the trial court’s summary judgment for Dauley was erroneous.

The majority opinion correctly cites the rule for testing the sufficiency of a description of land in a contract of sale, but in my opinion the majority fail to correctly apply this rule to the contract before us. The majority have lost sight of the fundamental purpose of the Statute of Frauds, and as a result a rule whose purpose is to prevent fraud has been applied to thwart the expressed intent of the parties to the contract. The Statute of Frauds simply requires that all contracts for the sale of land be in writing. This requirement has long been interpreted to mean that the contract must furnish enough information to locate the property to be conveyed with reasonable certainty. As stated by this Court in Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945), “the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty.” The test to be applied to the description in the U. S. Enterprises-Gage contract, therefore, is whether it supplies the essential elements necessary to locate the thirty acres in question; or, in other words, whether the contract supplies “the means or data” from which a party familiar with the locality could locate the thirty acres with reasonable certainty.

What data does the contract supply? First, that the property to be conveyed lies within three surveys, J. G. Bullock, David Moses, and J. H. Moore, in Wise County; second, that the property consists of ten tracts, each given an approximate acreage and a name; and third, that it is the property colored in green and orange on a sketch which is attached to and made a part of the contract. Obviously, the most specific data provided by the contract is that found on the sketch itself. Using the sketch alone, it is apparent that the exact boundaries of at least one portion of the land colored thereon can be readily located, without reference to any additional or extrinsic information: that is, all the property lying within the triangle created by three roads which are named on the sketch, West Thompson on the south, Highway 287 and 81 on the west, and Highway 51 on the east. Indeed, there can be no other location in the State of Texas, so far as the summary judgment proof shows, where these named roads converge to create such a triangle. Even without the name of the survey or county in which this land lies, it is clear that any person given this sketch could locate that property and its boundaries with reasonable certainty. The named roads provide ready-made distance and course lines which can be located on the ground without reference to any other information. In fact, looking at the sketch, it is apparent that this triangle is the only tract of land whose boundaries are clearly located by lines which are visible on the ground. It is this same triangle which Dauley Enterprises has purchased from Gage.

The majority of the Court have held, nevertheless, that the description in the contract is insufficient to comply with the Statute of Frauds. A primary reason given by the majority for its holding is that the contract failed to name the Walker Survey, within which this triangle lies. Although the reasoning of the opinion is not clear, it is apparently asserted that, because of the omission of the Walker Survey from the contract description, it is impossible to determine from the face of the contract whether the parties intended to include the triangular tract within its terms — i.e., whether the parties intended to convey all the property colored on the sketch, or only that property on the sketch which is located within the three surveys named in the contract. Although this inconsistency does create an ambiguity, I respectfully disagree with the majority’s conclusion that the inconsistency is necessarily fatal to the description.

First, despite the majority’s strong reliance on survey names, it is clear that the failure to name a survey is not fatal to a description if the property can be located from the data in the contract without reference to a survey. See Easterling v. Simmons, 293 S.W. 690 (Tex.Civ.App. — Waco 1927, writ ref’d). When the sketch is applied to the ground, it is revealed that the triangle lies in the Walker Survey, which is adjacent to, and to the east of, the Bullock Survey. Thus, it is clear that some part of the description is erroneous — either the assertion that the property all lies in the Moses, Bullock and Moore Surveys, or the inclusion of the triangle within the colored portion of the map. A false or contradictory element in a description does not necessarily make it insufficient, however. The description will be upheld, and the contradiction will be harmless, if one can still determine the intention of the parties with reasonable certainty from the data supplied by the contract. Roberts v. County of Robertson, 48 S.W.2d 737 (Tex.Civ.App. — Waco 1932, writ ref’d); Wilemon v. State, 385 S.W.2d 573 (Tex.Civ.App. — Dallas 1964), reversed on other grounds 393 S.W.2d 816 (Tex.1965).

In determining the parties’ intent where there is some conflict in the data of description, it is a well known rule of construction that specific language of description controls more general language. Cullers v. Platt, 81 Tex. 258, 16 S.W. 1003 (1891); 19 Tex.Jur.2d Deeds § 114 (1960). Applying this rule to the case before us, I believe that the contract clearly expresses an intent that the triangle be included as part of the property to be conveyed, even though the Walker Survey was omitted from the description. The sketch certainly provides more specific descriptive data than a survey name. Viewing the contract as a whole, it is evident that the Walker Survey was omitted by mistake. Where a part of a description is obviously false, that part may be disregarded and the description sustained as valid if, after rejection of that which is false, the remaining data is sufficient to identify the property with reasonable certainty. Cartwright v. Trueblood, 90 Tex. 535, 39 S.W. 930 (1897); Reserve Petroleum Co. v. Harp, 148 Tex. 448, 226 S.W.2d 839 (1950). Since it is clear that the triangle can be located without reference to a survey, the failure of the parties to name the Walker Survey is not fatal to the description.

The majority opinion also holds that, even if the contract had been reformed to include reference to the Walker Survey, the description of the triangle would still be fatally defective. Although the reasoning of the opinion is again unclear, the majority apparently deem it necessary to the description that each of the ten named tracts be specifically identified on the sketch. I am unable to see why such a requirement should be imposed. As movant for summary judgment, it was Dauley’s burden to show that the description in the contract was defective as a matter of law. Dauley has submitted no evidence to show that the triangle is not one of the ten listed tracts named in the written portion of the contract. Snell, the president of U.S. Enterprises, has alleged in his affidavit in opposition to Dauley’s motion for summary judgment that the property within the triangle is described as tract (9), “26 acres, more or less, known as the Harvey Burress property,” and tract (10), “6 acres, more or less, known as the Decatur Baptist College property.” No evidence to the contrary appears in the record. If Dauley could show that none of the ten tracts describe property in the triangle, then the ambiguity created by such an inconsistency between the written portion of the contract and the sketch might indeed be fatal to the description. Absent such a showing, however, it cannot be said that a fatal ambiguity exists as a matter of law.

The majority, I believe, have made this case unnecessarily difficult by failing to properly formulate the issue before us. The opinion states that “[t]he sole question is whether the summary judgment proof established as a matter of law that the written descriptions of tract 9 and tract 10 in the U. S. Enterprises-Gage contract (including the map) were insufficient under the Statute of Frauds to locate such tracts with reasonable certainty as comprising the triangle in the A. J. Walker Survey.” Does this mean that petitioner must be able to locate the boundaries of each of the two separate tracts within the triangle from the information supplied by the contract before he is entitled to specific performance? Why should he be required to do so, when the exact boundaries of the triangle itself are shown, and it is clear from the contract that the parties intended to convey all the property within the triangle? Do the majority intend to say that the sketch cannot be used to locate the property if the written portion of the contract is not sufficient by itself to locate the property, without the aid of the sketch? If so, the majority is simply refusing to consider the map as part of the contract. Although the parties’ use of a sketch to aid their description may be somewhat unorthodox, I cannot see why the information provided by the sketch should be ignored. Maps are often a valuable aid to the parties in determining exactly what property should be conveyed, supplying useful clues to the parties’ true intent where metes-and-bounds descriptions are defective. In the case at hand the sketch provides precisely the necessary specific information of location which the written description lacks.

The test for determining the sufficiency of the description in this case is much simpler than the majority’s statement of the issue would make it. That test is, could a person familiar with the locality, using only the written contract and the data it provides, locate the boundaries of the property in question and determine therefrom with reasonable certainty that the parties intended to include that property in their contract? I respectfully dissent from the majority’s conclusion that such person could not.

While I will not lengthen an already lengthy dissent by discussing the many cases cited by the majority, I believe that all the authorities there relied upon are distinguishable. When analyzed in light of the objective of the Statute of Frauds, these authorities are inconsistent with the result reached by the majority. The very case cited by the majority for the rule which it purports to follow, Wilson v. Fisher, is clearly distinguishable from the case at hand. In Wilson, the contract which the Court found insufficient under the Statute of Frauds was to convey a “brick duplex & garage apt. located at 4328-30 Cedar Springs . . . Room in back not included.” The Court correctly held that it was impossible to identify the property to be conveyed with any certainty from this description. Cases which upheld similar descriptions, and which the Court in Wilson expressly found were distinguishable from the description before it, include Morrison v. Dailey, 6 S.W. 426 (Tex.1887) (where the property was described as “my place, known as the ‘James Perry Tract of La,nd’ ”); Fulton v. Robinson, 55 Tex. 401 (1881) (“my own headright, lying on Rush Creek, in the cross timbers”); Cunyus v. Hooks Timber Co., 20 Tex.Civ.App. 290, 48 S.W. 1106 (1889, no writ) (“one tract of land, known as the ‘Vanmeter Survey’ ”); and Sorsby v. Thom, 122 S.W.2d 275 (Tex. Civ.App. — Galveston 1938, writ dism’d) (“Rock Island Plantation”). I believe that the description in the case before us is certainly as specific as the descriptions held sufficient in these cases.

The majority also rely on a more recent decision by this Court concerning the problem of sufficiency of description in a contract of sale, Morrow v. Shotwell, 477 S.W.2d 588 (Tex.1972). Morrow is also easily distinguishable from the case at hand. The description there before the Court was of a certain tract

out of 145.8 acre tract of the Jefferson McGrew Survey No. 245, which acreage lies North of a line beginning at the Northeast corner of the First Tract above described and running North 75° East to a point in the West Boundary Line of Public Highway No. 277, commonly known as the Anson-Hawley-Abilene Highway, Jones County, Texas.

Although this description appears very detailed, it is apparent upon closer examination that the only boundary line provided by the description is the one on the south; nothing in the description gives any information from which the eastern, western or northern boundary lines might be located. Nor could these lines be located by reference to the boundaries of the 145.8-acre tract mentioned in the description, since the contract itself did not provide the boundaries of the larger tract, and its location could be supplied only by extrinsic evidence. Unlike the U. S. Enterprises-Gage contract, the Morrow contract contained no map from which the parties’ intent could be further determined. The Morrow opinion correctly held that the contract did not provide the essential data from which the property’s boundaries could be located on the ground with reasonable certainty.

Each case must stand on its individual facts, but the only question in every instance is whether the parties’ intent can be ascertained with reasonable certainty from the face of the written instrument. I respectfully disagree with the conclusion of the majority that the written instrument in this case does not adequately reflect that intent. I would hold that Dauley has not proved as a matter of law that the description in question is insufficient to satisfy the Statute of Frauds.

POPE, REAVLEY and McGEE, JJ., join in this dissent.

      . Sec. 26.01, Business and Commerce Code, Vernon’s Texas Codes Annotated, the Statutt of Frauds; formerly Article 3995.

      . Quotations are from the affidavit of Frank E. Snell, President of U. S. Enterprises. Portions of this statement are confirmed by the deposition of Coke L. Gage.

      . Compare the following cases in which mistakes in the name of the survey were held not to be fatal when there was other descriptive language from which the correct survey was evident: Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247 (1955) (“Denver Resurvey No. 2” instead of “Denver Resurvey”); Burchard v. Record, 17 S.W. 241 (Tex.1891) (“J. P. Digg’s” instead of “Geo. P. Digg’s” Survey); and Petty v. Wilkins, 190 S.W. 531 (Tex.Civ.App.1916, writ ref.) (“Joseph Stone Survey” instead of “Joseph Sloan Survey”).


author: GREEN, Commissioner.

text:
    Mark Ira WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 51603.
    Court of Criminal Appeals of Texas.
    March 31, 1976.
    Rehearing Denied April 28, 1976.

      Jack Hill, Dallas, for appellant.
    Tim C. Curry, Dist. Atty., and Marvin Collins, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant plead guilty before a jury and was convicted of possession of over four ounces of marihuana. Punishment was assessed at two years’ confinement and a fine of five thousand dollars.

The record reflects that on September 7, 1974, while appellant was making a change of airplanes while in transit from Washington, D. C. to Tucson, Arizona, he was observed at American Airlines gate 12 of the airport in Tarrant County in a very intoxicated condition. He was staggering, unable to stand, eyes dilated, clothes shambled, incoherent, unresponsive to questions by medical personnel, and smelling strongly of alcohol. He was arrested for public intoxication and removed from the terminal in a wheel chair. A pat down of appellant when arrested revealed a wallet and $23,000 cash which fell from his boot. It revealed also (1) a marihuana cigarette, (2) an airline ticket in the name of “Mr. D. Perry,” (3) a baggage claim check, and (4) a driver’s license in the name of “D. Perry” but bearing appellant’s picture.

■ A brown suitcase with the same claim number as the baggage check was secured and brought to the station. Appellant after consulting with his lawyer (who also represented him at the trial) executed a consent form authorizing the search of the suitcase. He opened the suitcase by operating the combination. Inside were found a semi-automatic fully loaded pistol, a spare loaded clip, $5,000 in cash and 15.98 ounces of marihuana.

At the trial appellant after being thoroughly admonished by the court entered a plea of guilty and filed his plea for probation. After hearing the evidence, the jury assessed punishment as stated above and denied his plea for probation.

In his first five grounds of error, appellant complains of the admission in evidence of (1) the finding of the $28,000 in cash, (2) the pistol, (3) the driver’s license, (4) the airplane ticket, and (5) the baggage claim check, all of which articles were found on him or in his baggage. Appellant argues that since his plea of guilty before a jury admitted the existence of all facts necessary to establish guilt and the only issue before the jury related to punishment (see Art. 26.14, Y.A.C.C.P.; Cleveland v. State, Tex.Cr.App., 502 S.W.2d 24), the objectionable evidence was not relevant to any issue in the case, was highly inflammatory and prejudicial, and was improperly admitted.

In Cleveland v. State, supra, in the trial in which the defendant had plead guilty before the jury of possession of marihuana and had asked for probation, we quoted with approval from Allaben v. State, Tex.Cr.App., 418 S.W.2d 517, and from Davis v. State, infra, as follows:

“ ‘Evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Section 2(b), Vernon’s Ann.C.C.P. is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.’ 418 S.W.2d at 519. See White v. State, 444 S.W.2d 921, 923 (Tex. Cr.App.1969); Basaldua v. State, 481 S.W.2d 851 (Tex.Cr.App.1972); Brumfield v. State, 445 S.W.2d 732, 741 (Tex.Cr.App. 1969); Santiago v. State, 444 S.W.2d 758 (Tex.Cr.App.1969).
“And, in Davis v. State, 478 S.W.2d 958 (Tex.Cr.App.1972), this court wrote:
“ ‘While the general rule is that specific acts of misconduct by the accused which have not resulted in final convictions cannot be admitted, this court has been reluctant to exclude legally admissible evidence which is relevant to a fair determination of an accused’s application for probation . . . .’ (cases cited omitted) 478 S.W.2d at 959.”

With reference to the case then before this Court, we added:

“The issue of probation for this appellant, who had plead guilty to the possession of marihuana, was squarely before the jury. We are not here dealing with improper impeachment under Article 38.29, Vernon’s Ann.C.C.P., or testimony which was not proper under Article 37.07, Vernon’s Ann.C.C.P. Other issues can become involved rendering relevant testimony admissible. See McCrea v. State, 494 S.W.2d 821 (Tex.Cr.App.1973), where defendant was asked if he was addicted to any drug, addicted to marihuana or had shot speed in the past, and such was held not to be error.”

And as we stated in Dunlap v. State, Tex.Cr.App., 462 S.W.2d 591:

“We hold that all the facts and circumstances surrounding the commission of the offense on the occasion in question are admissible before the jury on the question of guilt and may be considered in determining the punishment to be assessed. Taylor v. State, Tex.Cr.App., 420 S.W.2d 601. See 4 Branch’s Ann.P.C.2d, Section 1962, p. 289. . . .”

See also Holmes v. State, Tex.Cr.App., 502 S.W.2d 728; Gomez v. State, Tex.Cr. App., 470 S.W.2d 871; Feather v. State, 169 Tex.Cr.R. 334, 333 S.W.2d 851; Collier v. State, 167 Tex.Cr.R. 534, 321 S.W.2d 584; Hemmeline v. State, 165 Tex.Cr.R. 583, 310 S.W.2d 97. See Brazile v. State, 497 S.W.2d 302.

This Court has consistently held that the State is entitled to prove the circumstances surrounding the arrest. See Article 38.22, V.A.C.C.P.; Harryman v. State, Tex. Cr.App., 522 S.W.2d 512; Hernandez v. State, Tex.Cr.App., 484 S.W.2d 754; Jones v. State, Tex.Cr.App., 471 S.W.2d 413. Whether the evidence is relevant to any issue in the case lies within the sound discretion of the trial court, and this Court will not reverse unless a clear abuse of that discretion is shown. Hernandez v. State, supra; Lanham v. State, Tex.Cr.App., 474 S.W.2d 197.

The articles in question were found in appellant’s possession at the time of the commission of the offense and of the arrest. They were circumstances surrounding the offense and the arrest, and were relevant not only to guilt, but also to the issues of punishment and probation. No clear abuse of the trial court’s discretion is shown.

The first five grounds of error are overruled.

In his sixth ground, appellant complains of the admission in evidence of the testimony of his condition at the time of his arrest. For the reasons stated above in disposing of the first five grounds, this contention is without merit and is overruled.

In his seventh and eighth grounds, appellant contends the State committed reversible error in arguing before the jury that it could consider the fact that appellant had several thousand dollars and a gun in his possession. The prosecutor was basing his argument on evidence in the record. No error is presented. Frazier v. State, Tex.Cr.App., 480 S.W.2d 375.

In his ninth ground, appellant contends reversible error occurred during the State’s jury argument as follows:

“MR. STRICKLAND [State]: Very often in criminal eases a certain number of years in the penitentiary is assessed.
“MR. HILL [Defense]: Your Honor, we are going to object to other cases the District Attorney’s office is handling.
“THE COURT: Objection overruled.”

No mention was made as to any specific verdict in any other case. After the court overruled appellant’s objection, the prosecutor dropped any reference to other cases. Error is not presented.

Appellant’s tenth ground of error reads: “The trial court erred in its charge to the jury in so much as it failed to sustain the objection of the defendant to the charge and include the language requested by the defendant.”

There is no discussion or argument in appellant’s brief concerning this complaint, and error is not presented. Art. 40.09, Sec. 9, V.A.C.C.P.; Brantley v. State, Tex.Cr. App., 522 S.W.2d 519.

Furthermore, this trial occurred March 17, 1975, prior to the effective date of the amendment of Art. 36.14, V.A.C.C.P. permitting objections to the court’s charge to be dictated to the court reporter in the presence and with the consent of the court. See Art. 36.14, V.A.C.C.P., as amended effective September 1, 1975. Appellant made no written objections to the court’s charge, nor did he file any written requests for additional instructions. Nothing is presented for review. Sutton v. State, Tex.Cr. App., 519 S.W.2d 422, 425; Sloan v. State, Tex.Cr .App., 515 S.W.2d 913.

The judgment is affirmed.

Opinion approved by the Court.


author: ODOM, Judge.

text:
    Walter Lee BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 50755.
    Court of Criminal Appeals of Texas.
    April 14, 1976.
    Rehearing Denied May 4, 1976.

      Pat McDowell (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Winfield Scott and James G. Walker, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.-42(c), was assessed at twenty-five years.

First, appellant contends that he could not be convicted of robbery where the evidence showed that the assault upon the complaining witness was committed after the theft from that witness.

The record reflects that appellant committed theft of money and a loaded pistol from a desk drawer while the complaining witness’s back was turned. The assault was committed after the witness followed appellant outside the store, where he was preparing to enter his car and flee.

Appellant relies upon Spead v. State, Tex.Cr.App., 500 S.W.2d 112 and Jones v. State, Tex.Cr.App., 467 S.W.2d 453. These cases, decided under our former Penal Code, indeed held that robbery will lie only where the violence or threatened violence precedes the taking.

Our new Penal Code has significantly changed the law of robbery. V.T.C.A. Penal Code, Sec. 29.03 provides that a person commits aggravated robbery “if he commits robbery as defined in Section 29.02” and he causes serious bodily injury to another or uses or exhibits a deadly weapon.

V.T.C.A. Penal Code, Sec. 29.02 provides in part:

“(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 of this code and with intent to obtain or maintain control of the property, he:
“(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
“(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. . . . ”

Finally, V.T.C.A. Penal Code, Sec. 29.-01(1) provides:

“ ‘In the course of committing theft’ means conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.”

In the instant case, the conduct constituting an assault occurred “in immediate flight after the attempt or commission of theft.” Hence, all the elements of the offense of robbery have been shown. Lightner v. State, Tex.Cr.App., 535 S.W.2d 176 (1976). The first ground of error is overruled.

Next, appellant complains of improper jury argument by the prosecutor at both the guilt or innocence and punishment phases of the trial. The record reflects that objections were either sustained or not ruled upon in almost all of the instances about which complaint is made. The sustaining of objection and instructions to disregard were sufficient relief where granted by the trial court. Pringle v. State, Tex.Cr. App., 511 S.W.2d 35; Drakes v. State, Tex. Cr.App., 505 S.W.2d 892; Johnson v. State, Tex.Cr.App., 504 S.W.2d 496; Morgan v. State, Tex.Cr.App., 502 S.W.2d 695.

In three instances appellant’s objection was overruled: (1) The prosecutor, after noting that appellant had denied threatening the complaining witness with a pistol, stated that the latter should not have to “come down here and hear a lawyer get up and say [he] dreamed it all up.” No reversible error is shown by such remark.

(2) Complaint is made of the following argument of the prosecutor:

“It’s a fact that any witness who testifies may be impeached by a prior record; that is, felonies or misdemeanors involving moral turpitude or their credibility can be attacked and impeached by witnesses called down here to testify that they do not have a good reputation for truth and veracity.”

(3) The prosecutor then proceeded to bolster the testimony of the complaining witness by asserting that from the fact that appellant had presented no evidence to impeach the complaining witness the jury could assume that the latter “has a lilly white record. No record at all.”

This line of argument was an improper attempt to bolster the testimony of a State’s witness by referring to matters outside the record. Cf. Drakes v. State, Tex. Cr.App., 505 S.W.2d 892. The objections should have been sustained. We are unable to say, however, that the error was such as to mandate a reversal of the judgment.

In another ground of error, appellant contends that under Art. 62, V.A.P.C., a prior conviction for felony theft could not have been used to enhance punishment upon a conviction for robbery; the same should be true, he argues, under V.T.C.A. Penal Code, Sec. 12.42(c). It appears that appellant’s premise is erroneous in that this Court has held that robbery and theft are like offenses. Horne v. State, Tex.Cr.App., 508 S.W.2d 643. In any event, as the Practice Commentary to Sec. 12.42 states, “The requirement of Article 62 that the instant offense be ‘of the same nature’ as the prior offense is eliminated.”

He also contends that the prior conviction was invalid because proper stipulations were not entered in accordance with Art. 1.15, V.A.C.C.P. A properly executed, written agreement to stipulate testimony and a waiver of the rights of appearance, confrontation, and cross-examination of witnesses appear in the record. The complaint that the evidence was orally stipulated, in violation of the provisions of Art. 1.15 then in effect, is without support in the record. The ground of error is overruled.

Finally, appellant contends that his indictment was fundamentally defective because it failed to allege ownership of the property alleged to have been stolen. The offense occurred after the effective date of the new Penal Code. Therefore, the omission of any ownership allegations did not render the indictment invalid. Reese v. State, Tex.Cr.App., 531 S.W.2d 638.

The judgment is affirmed.

      . A firearm is a deadly weapon, V.T.C.A. Penal code, Sec. 1.07(a)(ll).


author: ONION, Presiding Judge.

text:
    Benny Gomez LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51237.
    Court of Criminal Appeals of Texas.
    April 20, 1976.

      Dennis W. McGill, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and Charles Bailey, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder where the jury assessed the punishment at life imprisonment.

The record reflects that on the night of January 13, 1974, the appellant and Ricky and Jesse Rivera were at the La Fiesta Dance Hall in Lubbock. Appellant was placed there by the testimony of his ex-wife and a security guard, Carlos Perez. Jesse Galvan testified that the 26 year old deceased, Arthur Luna, Jr., was also there that night and was looking for a ride when the dance ended about 12:30 a. m.

The body of the deceased was discovered on January 16,1974, in a field near a school by a Lubbock school district employee. When the police arrived, they found the badly beaten body of the deceased with his underwear pulled down below his buttocks. Trousers were found in a tree nearby.

Dr. John Ray testified the deceased was killed by blows with some instrument to the head and that the left side of the skull had been fractured. While the doctor could not be positive about the fact of a sexual assault, he did testify he discovered acid phosphate, an enzyme produced by the prostate gland of a male, and blood in the rectal area of the deceased.

Appellant was arrested for the murder of Luna after he was found in a house at 1803 Bates Street in Lubbock where the officer executed a search warrant on January 27, 1974. The deceased’s shoes, bloody clothing and other items were discovered there.

A number of warnings were administered to the appellant both by magistrates and peace officers. On January 28, 1974, in midafternoon, he gave a written confession, admitting killing Luna. Subsequently, he took officers where he had buried a car jack used in the assault and pointed out the area and the officers were able to uncover the buried jack. Later that evening he gave another written confession in more detail acknowledging that he had not told the “whole truth” when he gave the earlier written confession.

This last confession reflects that the appellant and Rivera brothers had given the deceased Luna a ride from the dance, and that an argument ensued when money for gas was requested of Luna and he said he had only enough for cigarettes. They drove to a field and pulled Luna from the car and all three began to hit Luna with their fists and a car jack. Appellant acknowledged he pulled “Luna’s pants down and laid on him for a while and then got off.” Luna was dragged into the bushes and the jack was buried near the edge of the field.

First, we shall consider appellant’s contention that the court erred in permitting the introduction of State’s Exhibits 18 (deceased’s shoes) and 20 (jack head) for the reason they were obtained by an illegal search and seizure at the 1803 Bates Street address because the search warrant was predicated upon insufficient affidavit.

The affidavit reads as follows:

“AFFIDAVIT IN SUPPORT OF ANY SHERIFF OR PEACE OFFICER OF LUBBOCK COUNTY, TEXAS, For a Search Warrant to search a white frame triplex apartment, said apartment being located on the extreme east end of the triplex apartment unit with the front door facing south and located at 1803 Bates Avenue, Lubbock, Lubbock County, Texas, being occupied and controlled by Rickey Riveria, a Mexican male, approximately 19 years of age, and person or persons whose names and descriptions are unknown, and a Chevelle automobile bearing the license number CLJ 298 and a Chevrolet automobile bearing the license number CDF 886, and all other automobiles and outbuildings located on or appurtenant to the premises.
“I, Mike Cooper, of the Lubbock Police Department, have reason to believe and do believe that certain items, to-wit: 4 bumper jacks, are presently located at a white frame triplex apartment, said apartment being located on the extreme east end of the triplex apartment unit with the front door facing south, located at 1803 Bates Avenue, Lubbock, Lubbock County, Texas, being occupied and controlled by Rickey Riveria, a Mexican male, approximately 19 years of age and person or persons whose names and descriptions are unknown. Affiant has reason to believe and does believe that the above described items are items that were used to beat to death Arthur Luna, Jr., on or about January 16th, 1974, and it is necessary to search the above described premises in order to seize any evidence in the murder, to-wit: tire tools, bumper jacks, articles of clothing worn by the victim, tires, and bloodstains.
“I, Mike Cooper, believe the above statement is true for the following reasons: within the past twenty-four (24) hours the Affiant has received information from an informant that the morning of January 16th, 1974, the informant personally observed four Mexican males remove four bumper jacks from a blue Chevrolet automobile. Said bumper jacks were covered with blood and the clothing of the four Mexican males were covered with blood. Informant further observed bloodstains on the tires of the automobile. I, Mike Cooper, further believe that the above statement is true for the following reasons: the deceased, Arthur Luna, Jr., was beaten to death by an instrument or instruments which make marks resembling a bumper jacks, and affiant personally observed these marks on the body of the deceased. Also, the informant lives across the street from the apartment described in this affidavit and the information he has given is through his personal observations. Furthermore the informant is gainfully employed. The informant’s name is Jimmy Huerta.”

It is appellant’s contention that the affidavit does not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), wherein the court states that “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable’.”

Appellant asserts that the affidavit fails to reflect sufficient underlying circumstances from which the informant concluded that the property was where he claimed it to be. Appellant argues that while the informant supposedly observed four Mexican males remove bumper jacks and clothing covered with blood from a blue Chevrolet automobile he did not state that the persons he saw were on the property described (1803 Bates) or went into the apartment or what they did with the jacks and clothing; that while the informant lived across the street from the apartment in question, there is no showing from the facts of the affidavit that the informant was at home at the time of his observations.

It is true that in determining the sufficiency of a search warrant affidavit to reflect probable cause this court is bound by the four corners thereof. Article I, Sec. 9, Tex.Const.; Article 18.01, Vernon’s Ann.C. C.P.; Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1975); Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975). However, in interpreting affidavits for search warrants courts must do so in a common sense and realistic manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Carvajal v. State, supra; Powell v. State, 505 S.W.2d 585 (Tex.Cr.App.1974). Further, a magistrate, in assessing probable cause, may draw inferences from the facts, Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and probable cause exists when the facts and circumstances shown in the affidavit would warrant a man of reasonable caution in the belief that the items to be seized were in the stated place, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The test is whether the facts submitted to the magistrate were sufficient to justify a conclusion by him that the property which is the object of the search is probably on the person or premises to be searched at the time the warrant is issued. See Durham v. United States, 403 F.2d 190, 193 (9th Cir. 1968). And if “in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, supra, 380 U.S. at p. 109, 85 S.Ct. at p. 746.

In United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), the court said:

“Although there was no direct evidence that any evidence from the burglary was inside Dinsio’s residence, there was sufficient evidence from which the magistrate could use his common sense to infer that the loot and tools, if not buried, were probably in the house. United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741. . . .
“Because ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,’ Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), we conclude that the affidavit contained a sufficient constitutional basis for a finding of probable cause.”

In United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970), the search warrant affidavit, among other things, stated a male postal employee (Lucarz) had received custody of a mail pouch and later reported it to be cut and the mail inside missing and that he had been absent from the office for 35 minutes on the day in question. The court concluded the affidavit demonstrated theft of matters one would expect to be hidden in a residence. It reflected that appellant had the time to take the materials to his home but not to seek a more unusual hiding place. The court then said:

“The situation here does not differ markedly from other cases wherein this court and others, albeit usually without discussion, have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.” (Authorities cited not listed.)

As appellant points out, the affidavit in the instant case does not contain anyone’s observation of the property at 1803 Bates; that missing information, however, is not fatal to a determination that probable cause existed to search the residence. See and cf. United States v. Rahn, 511 F.2d 290, 293 (10th Cir. 1975). The affidavit, as we have determined, gave probable cause to search the premises. The affidavit reflects that the information came from personal observations of an informant, that the informant lived across the street from 1803 Bates, which apartment was described in some detail by the affidavit. Since the items in question were seen taken from an automobile by a named informer who lived across the street, we think it is a reasonable inference that items were at the address named in the affidavit.

Appellant asserts that the second prong of the Aguilar test was not met because the affidavit failed to reflect that the informant was “credible” or his information “reliable.”

In Frazier v. State, 480 S.W.2d 375 (Tex. Cr.App.1972), it was held that the requirements of Aguilar are met when the hearsay information in an affidavit is derived from named persons who supply detailed information suggesting direct knowledge of the information which they have given. See also United States v. Bell, 457 F.2d 1231 (5th Cir. 1972). See also Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976).

Here, the affidavit named the informant as Jimmy Huerta, and stated he lived across the street from the address in question and stated he was gainfully employed and related the detailed information concerning the bloody items seen taken from the car in question. It is further obvious that many of the other facts stated by the affidavit were obtained from the informant rather than by personal surveillance by the affiant. Appellant’s contention is without merit.

Appellant also urges that the lapse of time between the informant’s observations on January 16,1974, and the issuance of the search warrant on January 27, 1974, will not justify the finding of probable cause at the time the warrant was issued even though the officer-affiant only received the information from the informer within twenty-four hours before the warrant was issued.

It is true that the facts attested to in the search warrant affidavit must be so closely related to the time of the issuance of the warrant as to justify a finding of probable cause at the time by the magistrate. Heredia v. State, 468 S.W.2d 833 (Tex.Cr. App.1971), and cases there cited.

In Moore v. State, 456 S.W.2d 114 (Tex. Cr.App.1970), officers delayed from November 29 to December 30, 1967, in obtaining a warrant although they had probable cause on November 29th. The warrant was upheld. While the affidavit did not reflect, the trial record showed the officers had also received information that the defendant was about to obtain a large quantity of marihuana and they waited until they secured the confirmation of such report before proceeding. After confirmation, they proceeded within a few hours to obtain the warrant on December 30th. See also Smith v. State, 114 Tex.Cr.R. 315, 23 S.W.2d 387 (1930).

In the instant case the officer moved within twenty-four hours after receiving information to secure the warrant. We hold that the 11 day lapse between the observations by the informant and the issuance of the search warrant was not fatal. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Golay, 502 F.2d 182, 187, footnote # 10 (8th Cir. 1974).

Next, appellant contends that the court erred in admitting his two confessions for the reason that the statements were (1) obtained in conjunction with an illegal search and seizure and were thus fruits of the poisonous tree, (2) there was no showing he knew and understood his constitutional rights and voluntarily waived such rights before making such statements.

The record is replete with numerous warnings given to the appellant by both the officers and two magistrates prior to the giving of both confessions. These warnings were in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Article 38.22, Vernon’s Ann.C.C.P., and Article 15.17, Vernon’s Ann.C.C.P. At the separate hearing on voluntariness, the appellant acknowledged he had been warned of his rights by both magistrates and understood what had been explained to him, that he was 19 years old at the time, had gone to the 9th grade in school and could read and write the English language. While on direct examination he stated he didn’t understand the meaning of the word “prior” and didn’t understand about the appointment of counsel if he was unable to secure one of his own choice, he contradicted this on cross-examination.

We conclude the evidence amply supports the court’s findings that appellant had been properly warned and that he had knowingly and intelligently waived his rights. Thompson v. State, 510 S.W.2d 949 (Tex.Cr.App.1974); Brown v. State, 508 S.W.2d 91 (Tex.Cr.App.1974); Taylor v. State, 498 S.W.2d 346 (Tex.Cr.App.1973); DeLeon v. State, 500 S.W.2d 862 (Tex.Cr. App.1973).

Further, what we have said about the legality of the search and seizure disposes of appellant’s other contention concerning the admissibility of the confessions. See and cf. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

Appellant also complains of the court’s charge instructing the jury that “a person commits the offense of murder if he intentionally or knowingly causes the death of an individual without justification” when the indictment only charged that he “did intentionally cause the death of Arthur Luna, Jr. . . . .” Appellant’s timely objection to the charge was overruled.

In examining the charge we find that in paragraph “1” thereof the court included the complained of instruction when he was abstractly charging on the law of murder. See V.T.C.A. Penal Code, Sec. 19.02. The abstract instruction was a correct statement of the law. When the court however applied the law to the facts in the charge, the court only authorized a conviction if the act was “intentionally” done as charged in the indictment.

The jury’s verdict at the guilt stage of the trial reflected that the appellant was guilty of murder “as charged in the indictment.” Appellant’s contention is without merit.

Appellant next complains of the court’s instruction on the issue of the voluntariness of the confession, claiming the instruction was cast in terms making it a negative proposition rather than charging in affirmative acts. The appellant timely objected. We do not view the charge as being erroneous, but if it was, no reversible error is presented for the error, if any, was not calculated to injure appellant’s rights nor was he deprived of a fair and impartial trial. See Article 36.19, Vernon’s Ann.C. C.P. It is further observed that the issue of voluntariness was not raised by the evidence offered before the jury. Thus, appellant was not even entitled to have the issue submitted. Cogburn v. State, 458 S.W.2d 932 (Tex.Cr.App.1970). In submitting the issue, the court placed the appellant in a more favorable position than he was entitled. The contention is overruled.

In two grounds of error appellant complains the trial court erred in failing to grant his third motion for continuance. The motion was not sworn to by the appellant as required by Article 29.08, Vernon’s Ann.C.C.P. No error is presented. Zanders v. State, 515 S.W.2d 907 (Tex.Cr.App.1974); Gonzales v. State, 470 S.W.2d 700 (Tex.Cr. App.1971); Ikner v. State, 468 S.W.2d 809 (Tex.Cr.App.1971).

Next appellant complains of the overruling of his motion in limine that no mention be made of the deceased’s mental condition as it was not relevant. The motion was overruled. It has long been established that the ages, physical and mental conditions of the accused and the deceased are admissible when relevant. Sanchez v. State, 69 Tex.Cr.R. 1134, 153 S.W. 1133 (1913); Hickey v. State, 99 Tex.Cr.R. 529, 270 S.W. 552 (1925).

Further, when the deceased’s father testified that the deceased had the mind of a child, there was no objection. It is fundamental that a timely objection to inadmissible evidence be urged at the first opportunity. Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1974).

Still further, appellant presents nothing for review when he relies solely upon the court’s action in overruling his motion in limine. Norman v. State, 523 S.W.2d 669 (Tex.Cr.App.1975); Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974); Hood v. State, 490 S.W.2d 549 (Tex.Cr.App. 1973); Ex parte Gill, 509 S.W.2d 357 (Tex. Cr.App.1974).

Appellant complains of the introduction of State’s Exhibit 17 (underwear found on the deceased) for the reason that there was not demonstrated a chain of' custody.

Lubbock police officer Lucas stated he arrived at the location where the deceased was found fifteen minutes before the ambulance arrived. He followed the ambulance to the hospital and was present when the underwear was removed, took it and turned it over to Officer Cooper. At trial Lucas identified the underwear as being in the same condition as he had found it initially on the deceased except for two holes. Cooper stated he received the underwear and identified it from his marks on it, stated he took it to Dr. Ray and Ray took a sample piece from the garment (the two holes). Cooper then took the exhibit to the Department of Public Safety and stated the underwear at trial was in the same condition as at that time.

It appears to be appellant’s argument that the chain of custody was broken when the underwear was not in police custody during the ambulance ride to the hospital. There does not appear to be any evidence that the underwear had been taken from the body or tampered with in any way. Appellant’s objection went to the weight rather than the admissibility. See DeLeon v. State, 505 S.W.2d 288 (Tex.Cr. App.1974); Noah v. State, 495 S.W.2d 260 (Tex.Cr.App.1973); Kilburn v. State, 490 S.W.2d 551 (Tex.Cr.App.1973). His contention is without merit.

Appellant further urges the court erred in admitting the bumper jack found in the field for the reason it solved no material issue.

The record reflects that appellant in his first written statement stated the deceased had been struck with a jack and that the jack had been thrown into a field. Later, in the company of officers, appellant went to the field and pointed out the area where the officers found a jack with human blood on it.

It is well settled that the weapons or instruments with which an offense has been committed or alleged to have been committed are admissible. Knox v. State, 487 S.W.2d 822 (Tex.Cr.App.1972). We cannot agree that the court erred in admitting the jack in question.

If it be appellant’s argument that the same was not admissible since it was discovered as a result of an oral confession, we observe that an oral confession leading to the instrument with which an accused states the offense was committed is admissible under Article 38.22(a)(l)(3), Vernon’s Ann.C.C.P. While Article 38.22, supra, does not require any warnings for oral confessions, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is applicable to both oral and written confessions. Lee v. State, 428 S.W.2d 328 (Tex.Cr. App.1968); Walker v. State, 470 S.W.2d 669 (Tex.Cr.App.1971). In the instant case the record reflects that prior to the oral confession the appellant was properly warned of his rights as required by Miranda by two magistrates and an officer, and the evidence is sufficient to show he waived his rights. Further, we find no objection offered to the introduction of the oral confession.

Appellant’s contention is without merit.

Lastly, appellant complains of the admission, over objection, of eight photographs, six of the deceased at the scene where the body was discovered, one of the deceased without clothing lying on a table after removal from the scene of the crime, and one of a pair of trousers in a tree.

There was testimony of the condition of the deceased’s body at the scene. It is well established that since a verbal description of the body and the scene was admissible it is not error to admit into evidence photographs thereof. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974); Winegarner v. State, 505 S.W.2d 303 (Tex. Cr.App.1974); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). The same rule would apply to the picture of the trousers in the tree, as well as the photograph of the nude body of the deceased lying on a table. It is observed that this latter photograph was not a post-autopsy photograph. Cf. Terry v. State, 491 S.W.2d 161, 163 (Tex.Cr. App.1973).

The contention is overruled.

The judgment is affirmed.

      . See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Article 38.22, Vernon’s Ann.C.C.P.

      . It appears the court at a pre-trial hearing entered orders on some 19 motions and instructed the prosecutor to prepare the written orders. The third motion for continuance was directed to the failure of the prosecutor to prepare such orders. After denial of the motions, only a portion of the orders were handed to appellant. It appears the court entered orally his order and ruling on each motion and the prosecutor was only to reduce them to writing and submit them to the defense for approval as a form only.


text:
    Lindsey Henton BENTLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 51851.
    Court of Criminal Appeals of Texas.
    April 20, 1976.

      Daniel H. Benson, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Mark L. Withrow, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from an order revoking probation.

Appellant was convicted of possession of marihuana on September 28, 1971. Punishment was assessed at eight years. Imposition of sentence was suspended and probation granted. Among the conditions of probation was the requirement that appellant:

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

On February 25, 1975, the State filed a motion to revoke probation, alleging that:

“On or about the 22nd day of February, A.D.1975, in Lubbock County, Texas, after having heretofore been placed on probation, Probationer did then and there appear in a public place, to-wit: a Gulf Service Station located at the intersection of Brownfield Highway and Quaker Avenue in the City of Lubbock, Lubbock County, Texas, under the influence of Alcohol to the degree that the said LINDSEY HENTON BENTLEY might endanger himself and others.”

Following a hearing, the trial court found that appellant had violated condition (a) of his probation, as alleged in the State’s motion to revoke. The trial court accordingly revoked his probation, reducing his sentence to three years.

The sole ground of error challenges the sufficiency of the evidence to support the trial court’s finding that he was guilty of the offense of public intoxication. V.T.C.A. Penal Code, Sec. 42.08 provides in pertinent part:

“(a) An individual commits an offense if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another. . . .”

It is not contested that appellant at the time of his arrest was in a public place, as that term is defined in V.T.C.A. Penal Code, Sec. 1.07(a)(29). Further, appellant does not assert that the evidence was insufficient to show that he was under the influence of alcohol; he himself testified that he had had three drinks of whisky and Seven-up at a tavern shortly before the arrest. Although he denied that he was “drunk”, he admitted that he could “feel the alcohol.”

Appellant argues, rather, that there was no evidence that he was under the influence of alcohol “to the degree that he may endanger himself or another.”

The arresting officer testified that when he entered the service station appellant was sitting in a chair in the office. His testimony continued as follows:

“Q. [by the prosecutor]: Did you notice anything unusual about him?
“A. [by officer Adcock]: When we walked in the office Mr. Bentley was seated and when he saw us he stood up and he had to hold his hand on the desk as he was swaying just a little bit.
“Q. All right. What else did you notice?
“A. We noticed that he smelled strongly of alcohol, his eyes were bloodshot.
“Q. Did you speak to him?
“A. Yes, sir, we did.
“Q. Did you notice anything about his speech?
“A. His speech was slurred, very slurred.
“Q. All right. Then what happened?
“A. We asked — since the office was very little, we asked him to step out into the front part of the station.
“Q. What did you notice at that time?
“A. When he started walking out toward the station he had to hold against the wall as he was swaying coming out of the station.
“Q. All right. Then what happened?
“A. We asked the subject his name, he did state it, we asked him had he been drinking and he said yes, that he had been over to the Comix Club drinking beer.
“Q. All right, then what happened?
“A. We talked to the subject further, it was hard to understand him, his speech was slurred, so we both- — since he couldn’t stand up by himself, we each— me and Officer McNeice, we took hold of his arms and led him out to the police car, he was weaving and couldn’t stand on his own power.
“Q. And did you form an opinion on the night of February 22, 1975 as to whether or not Mr. Bentley was in fact intoxicated?
“A. Yes, sir, I did.
“Q. And what was that opinion?
“A. That he was intoxicated.
“Q. Okay. Officer, why did you place Mr. Bentley under arrest?
“A. Because he was intoxicated.”

Appellant denied that he was so drunk that he could not walk without assistance. He testified that at the time of the arrest he was attempting to telephone his father.

Evidence relating to circumstances that appellant may have endangered himself or another was contained in his own testimony upon direct examination.

“Q. [by defense attorney]: All right. Will you tell the Court why you were at the gas station and what took place there?
“A. [by appellant] Well, I went to get some snow chains to put on my tires because it was snowing very heavy and my Dad called while I was there and he said I couldn’t borrow those snow chains.
“Q. You wanted to borrow snow chains from him?
“A. Yes, sir.
“Q. All right.
“A. And I told him I needed some clothes, I was fixing to come home and get some clothes and he said he would just bring them to me and while I was waiting that is when the officer’s came.”

The trial judge construed this testimony and the other evidence in this case, as he stated when revoking probation, as follows:

“I heard you testify a few moments ago about calling your father about chains for your tires for your car. I couldn’t help but shudder to think that if you had got those chains, maybe we would have you killing somebody on the streets that night. You know as well as I know that a person in your condition, the danger that you afford to the public. Now, you were placed on probation under certain terms and conditions; part of those terms and conditions were meant to help rehabilitate you. The other part were terms and conditions set up to help protect the public and certainly having you moving around in this community in a drunken condition is a danger to the community.”

We find the trial court’s evaluation of the evidence reasonable and further find no abuse of discretion in the decision to revoke probation. The dangers of which the trial judge spoke were supportive of the conclusion that appellant was under the influence of alcohol to the degree that he might well have endangered himself and others.

The judgment is affirmed.