author: BROWN, Commissioner. DOUGLAS, Judge

text:
    Leo Vernon BALDRIDGE and Murray Baugh, Appellants, v. The STATE of Texas, Appellee.
    No. 51922.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.

      Robert J. Newton, Freeport, for appellants.
    Ogden Bass, Dist. Atty. and Thomas W. Watson, Asst. Dist. Atty., Angleton, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from convictions for murder with malice under the former penal code. Appellants were jointly tried before a jury which assessed punishment for each man at life in the Texas Department of Corrections.

The record reflects that the killing took place at the home of Mrs. Vallie Baugh, the ninety-two year old mother of appellant Baugh, and grandmother of appellant Bal-dridge. It seems that a disagreement had arisen over the exact location of the property line between Mrs. Baugh’s property and the adjoining homesite of Mrs. Helen Williams Cassel. The properties are located in a rural area of Brazoria County near the community of Old Ocean.

On the day preceding the killing there was a discussion about the property line involving Mrs. Pearl Baldridge who is Baugh’s sister and Baldridge’s mother; Mrs. Cassel; a Mr. Harris, who was the vendor of the land to Mrs. Cassel, and Deputy Sheriff Clarence Edwards. The record is not clear about whether any agreement was reached at this meeting, but it does appear that a new survey of the property was conducted at the direction of Harris and stakes were driven into the ground to indicate the surveyor’s findings. Neither appellant was involved in these discussions.

Appellant Baugh testified that on the day of the killing he arrived at his mother’s home at approximately 5:30 p. m. He stated that she was upset over the property dispute and that he agreed to put up a fence along the property line. He began digging postholes along an older fence line which he said had been on the property years before.

Mrs. Cassel testified that she observed appellant digging the postholes. She stated that she called the Sheriff’s Department and that Deputy Sheriff James Douglas was sent to her home. She stated that she told Douglás what had transpired on the previous day and that appellant was not supposed to be digging the holes. She further said that Douglas left her door and approached appellant and that she followed to see what would be done.

It appears from the testimony of several witnesses that a conversation ensued between Douglas and appellant Baugh. In the yard of the Baugh home were Mrs. Pearl Baldridge, appellant Baldridge, Baugh’s brother Tom, his sister Mrs. Major-ene Waddy, and several other neighbors and children. In the Cassel yard were Mrs. Cassel, her sister, and a niece. The conversation between Douglas and Baugh was brief. Douglas apparently asked Baugh to refrain from digging the holes and Baugh replied that the property was his mother’s and that she had lived there thirty-three years and that she had a right to have it fenced. Baugh told the deputy he would rather “die and go to hell” than give up the land and Douglas is said to have replied that there would be no killing, that he was there “to settle this thing.”

Although all of the witnesses testified that the conversation was not “heated” and that appellant was very calm, it seems that when appellant continued digging the holes, the deputy attempted to physically restrain him. All of the witnesses except a neighbor, Mrs. Albertha Lee, testified that Douglas struck appellant first with what was described as a blackjack or billy club. The club was knocked from the deputy’s hand and appellant grabbed him in what he stated was an attempt to keep the deputy from getting to his gun. Douglas drew his .357 Magnum service revolver and began firing. The evidence is somewhat conflicting but it appears that appellant and the deputy were still engaged in combat when the gun was drawn and all six rounds were fired at close range toward the ground as though the deputy’s arms were pinned to his side by appellant. Two of the bullets struck appellant in the leg and foot and he retreated. It was during this shooting that appellant Baldridge drew a .25 caliber automatic from his jacket and fired at Douglas, hitting him in the hand with three shots and in the chest with the fourth. A fifth shot missed.

The deputy then ran or staggered back toward his patrol car and collapsed in the road. An ambulance and more police officers were summoned. Douglas died shortly thereafter at a nearby hospital. Appellant Baugh was arrested, treated for his wounds and taken to the police station where he gave a statement. Baldridge was also arrested and taken to the station where he also gave a statement.

Frances Griffin, Mrs. Cassel’s niece, gave testimony which was only slightly contradictory. She was unable to state who struck the first blow, but her testimony seems to indicate that she thought appellant Baugh may have been the aggressor. Albertha Lee gave testimony which was contradictory to the extent that she said appellant Baugh dropped the posthole digger and that during the conversation with Douglas he grabbed the deputy’s collar and that it was then that Douglas pulled the blackjack or billy club and swung at appellant. However, Mrs. Lee also stated that when the deputy first approached the property appellant Baugh dropped the posthole digger and walked toward him and that appellant Baldridge then took up the digging. Although Baldridge’s statement gives a similar rendition of the sequence of events, none of the other witnesses testified that the events occurred m that sequence. All of the other testimony was to the effect that Baldridge was merely standing nearby, and that the scuffle between the deputy and Baugh took place near the postholes.

It should be noted that none of the witnesses could state that Baldridge was involved in the discussion in any way. They stated that Baugh and Baldridge did not speak to one another at any time before or after the incident. There was also some rather confusing testimony about a clipboard which the deputy was carrying at the time. It seems that the clipboard was dropped during the scuffle and that one of the eleven bullets fired from the two guns pierced the clipboard. The State introduced the testimony of a firearms expert who stated that the hole in the clipboard was made while it was held in the air, although all of the witnesses testified that the clipboard was knocked down or dropped before the shooting started. We note also that the blackjack or billy club was not recovered.

Appellant presents thirty grounds of error in this appeal on behalf of both Baugh and Baldridge. We have reviewed all of the grounds of error and the entire record and have determined that the judgment must be reversed. In light of our disposition of this appeal we will discuss only the two issues below.

In ground of error seven appellant contends that the trial court erred in failing to charge the jury on the “presumption of the use of the weapon of the deceased” and in his twentieth ground of error appellant complains of the court’s failure to charge on the law of homicide to prevent murder, maiming, disfiguring or castration. Appellant timely filed special requested charges which were denied and submitted written objections to the court’s charge which were overruled.

Appellant relies on Article 1223, Vernon’s Ann.P.C., in effect at the time of this offense, which provides as follows:

“When the homicide takes place to prevent murder, maiming, disfiguring or castration, if the weapon or means used by the party attempting or committing such murder, maiming, disfiguring or castration are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury.”

The court charged the jury on the law of justifiable homicide to protect another person from unlawful violence and applied the law to the facts of the case. The jury was instructed to find appellant Baldridge not guilty if they believed that he shot and killed the deceased because it reasonably appeared to him that the deceased was making an unlawful attack upon appellant Baugh or that Baugh was in danger of death or serious bodily injury at the hands of the deceased.

We recently held that before the presumption of Article 1223, supra, comes into play there must be a showing (1) that the deceased had a weapon, (2) that such weapon in the manner of its use was calculated to cause death, and (3) that the deceased was using the weapon to make an assault upon the accused at the time the accused killed the deceased. Emanus v. State, 526 S.W.2d 806 (Tex.Cr.App.1976); Stone v. State, 510 S.W.2d 612 (Tex.Cr.App.1975); Sistrunk v. State, 486 S.W.2d 304 (Tex.Cr.App.1972). It is clear from the evidence as briefly set out above that Article 1223 is applicable to the instant case.

The case of Valdez v. State, 385 S.W.2d 239 (Tex.Cr.App.1964) is controlling in this situation. In Valdez, the accused shot and killed the deceased, who had a knife which he was using to slash and stab the brother of the accused. The trial court instructed the jury upon the right of the accused to defend his brother against an unlawful attack being made by the deceased from which attack it appeared to the accused that his brother was in danger of death or serious bodily injury at the hands of the deceased. We held that the failure of the trial court to grant the requested special instruction on the statutory presumption arising under Article 1223 was reversible error.

On remand Valadez was convicted a second time and he again appealed to this Court. He again asserted the failure of the trial court to include the charge on Article 1223. However, in the second trial the court included in the charge the definition of a deadly weapon and instructed the jury that if the deceased was using a deadly weapon in attacking defendant’s brother, then the law presumed that the deceased intended to murder him. The court further charged that if it reasonably appeared to the defendant, viewed from his standpoint alone, that his brother was in danger of death or serious bodily injury at the hands of the deceased, then he would be justified in killing the deceased. The charge was substantially the same as Article 1223, and we held that there was no error. Valadez v. State, 408 S.W.2d 109 (Tex.Cr.App.1966). Compare Emanus v. State, supra.

In the instant case the deceased deputy had a deadly weapon which he was using to make an assault upon the person of appellant Baugh. The court included a charge of justifiable homicide to protect another from unlawful violence, as the court in the first Valadez case did. However, the court failed to charge on the statutory presumption under Article 1223. Both appellants were entitled to have the presumption included in the charge. The failure to so charge calls for reversal of the conviction. Valadez v. State, 408 S.W.2d 109, supra.

In his sixth ground of error appellant contends that the evidence is insufficient to support a verdict of guilty as to appellant Baugh. We have reviewed the entire record in the light most favorable to the verdict and we agree with appellant.

There is no doubt that it was appellant Baldridge who fired the shots which killed the deputy. The only possibility of establishing Baugh’s guilt is as a principal.

The case is similar to Morales v. State, 466 S.W.2d 293 (Tex.Cr.App.1971), relied on by appellant. In that case the three defendants engaged in harassment of the deceased, a stranger to them, because “he had too many girls.” The three then began scuffling with the deceased and during the scuffle one of the defendants drew a knife and stabbed the deceased. All three were convicted of murder. On appellant’s motion for rehearing we reversed the conviction of Juan Morales because “there was no showing in the record that Juan knew that (his brother) was armed or that he agreed with him to do anymore than harass a boy who had more girls than they did.” See also Montalbo v. State, 145 Tex.Cr.R. 140, 166 S.W.2d 694 (1942).

Knowledge of the intent to kill the deputy is a necessary element to constitute Baugh as a principal in this murder with malice. Morales v. State, supra. Of course, this knowledge may be inferred from the circumstances surrounding the killing. However, all circumstances militate against an inference that Baugh knew of Baldridge’s intent to kill the deputy. There is no evidence that Baugh knew that Baldridge had a gun in his possession. It would appear from all the evidence that any intent that Baldridge may have had to kill the deceased arose during the brief fight and that Baldridge in no way communicated his intentions to Baugh.

The record is silent as to any common purpose or design. In situations in which one may be guilty as a principal, the very least that is required in addition to physical presence is encouragement by words or agreement to the commission of the offense. Such agreement must be prior to or contemporaneous with the criminal event. Suff v. State, 531 S.W.2d 814 (Tex.Cr.App.1976); Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046 (Tex.Cr.App.1919). All of the evidence indicates that there was no conversation between Baugh and Bal-dridge and that Baldridge’s actions were a spontaneous result of the scuffle between Baugh and the deputy.

We find the evidence insufficient as to appellant Baugh to support a conviction for murder with malice.

The judgments are reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(concurring in part and dissenting in part).

The judgments are reversed because no instruction was given on the presumption of the use of the gun by the deceased. There was evidence by the defense that the deceased committed an unprovoked attack on Baugh with a gun. Had we been jurors, we might not have believed this testimony, but that was a matter for the jury to decide with the aid of a proper instruction.

However, the judgment against Baugh should not be reversed on the ground of sufficiency of the evidence. The Court should consider all of the facts and circumstances to determine if the evidence is sufficient to show the two acted as principals.

Baugh was Baldridge’s uncle. The Baugh family was upset about a survey which showed a small strip of land was determined to be that of Helen Cassel. Baugh was digging post holes on a line claimed by the Baughs when Officer Douglas arrived.

Albertha Lee, who was related to the Baughs, testified that at about 6:40 p.m. on May 15, 1973, she was at Helen Cassel’s house when Officer Douglas drove up. Murray Baugh was digging post holes. Leo Vernon (Jim) Baldridge and his mother had arrived some five minutes earlier and she drove an iron “stob” in the driveway. Douglas talked to Mrs. Cassel who had called the sheriff’s office. He then asked Murray to drop the post hole digger. Murray dropped the digger and said the land had been theirs for 33 years and he had rather die and go to hell than lose it. Bal-dridge started digging with the post hole digger and the officer told him to stop. Murray then grabbed the officer by the collar and Baldridge’s mother then told Mrs. Cassel to stay out of it. Mrs. Cassel left. The officer pushed to keep Murray off of him and Murray grabbed the officer’s blackjack. A clipboard that the officer was holding fell out of his hand. The officer grabbed his pistol and in no way was trying to shoot Murray. They were scuffling and Murray had the officer’s arms pinned to his body. The officer got his pistol “and he started trying to keep Murray back.” Bal-dridge stayed within six feet there with his hand in his right pocket. Shots were fired and Pearl Baldridge saw the officer run toward his car. He fell down with his hand on his chest. She testified that Murray hit the first Ück and the officer pulled his gun and was shooting into the ground to keep Murray off of him. Murray kept coming at him.

Cleveland Lee, 79 years of age, testified that he was at the Baugh house in Old Ocean on the day in question and saw Murray digging post holes. He gave a different version as to who struck the first blow. Pearl Baldridge, the sister of Murray and the mother of Leo Vernon Baldridge, was there.

Clarence E. Edwards, a deputy sheriff of Brazoria County, testified that on the day before the homicide he and Pearl Baldridge went to the sheriff’s office and said that Selkirk Harris was trying to take of some of her mother’s land. Sheriff Gladney sent Edwards to see if he could straighten it out. Deputy Edwards and Selkirk Harris went by and picked up Pearl Baldridge at her cafe, the Lincoln Drive Inn, and went to talk to Helen Cassel to find out what the facts were.

On the day of the homicide Helen Cassel called the sheriff’s office because Murray Baugh was digging the post holes. The officer told Murray that he did not come out there to take sides.

Tom Baugh, a brother of Murray Baugh and Pearl Baldridge, was at the home at the time of the homicide. When Officer Douglas arrived, Tom told him that “nobody was violating the law and nobody called him there” and that he was disturbing the peace there, and “I told him he couldn’t handle those boys, Murray killed a man.” After an objection, the court instructed the jury not to consider the last statement. Later Tom Baugh, without objection, testified as follows:

“A I told him he couldn’t handle those boys unless he called for help.
“Q Did you tell the officer if he fought Murray, Jim (Leo Vernon) would kill him?
“A I told him if he gets in it, Jim will kill him.
“Q And Jim did kill him?
“A Yes.”

The record shows that Officer- Douglas was shot four times with an automatic .25 caliber pistol. From the ejection pattern of the spent shells, Baldridge moved to several different spots to fire.

Pearl Baldridge testified that on May 11 (four days before the homicide) Selkirk Harris, who had sold the property adjoining her mother’s and surveyed the property on the 14th of May, went with Deputy Edwards to Sheriff Gladney’s office to tell him about Selkirk Harris’ surveying the property because her mother was upset about the survey. They drove to her mother’s place. Murray lived with their mother. Vernon took her to her mother’s the day of the homicide. When they arrived, they saw the police car at Helen Cassel’s. They walked over to Murray and asked what he was doing, and he said, “ ‘Digging holes’ ” and, “I didn’t say any more.” She did not talk to Murray because the officer could do better because they had an agreement the day before not to do anything about a fence until the matter was settled. Her testimony that she had not talked to Murray about not starting a fence was impeached when it was shown that she had previously said that she told him not to do anything about a fence until the boundary line could be established.

Pearl and Leo Vernon were in a hurry to get to the property the afternoon in question. Vernon got ahead of the others at the service station to buy $2.00 worth of gas and stated that he was in a hurry.

There were sufficient facts and circumstances for the jury to conclude that both appellants were acting together to do anything to prevent Officer Douglas from stopping the post hole digging, just as there were sufficient facts and circumstances for Tom Baugh to conclude that if a fight started the officer would be killed.

Where two are charged as acting together, the case assumes the nature, to some extent, as with a conspiracy. A conspiracy is an agreement manifesting itself in words or deeds by which two or more persons confederate to an unlawful act. See Young v. State, 150 Tex.Cr.R. 378, 201 S.W.2d 46 (1947).

With the reasoning adopted by the majority to the effect there is no evidence that Murray knew of the intention of Leo Vernon, the convictions for one driving the getaway car in a robbery case could not be affirmed absent proof that the driver knew of the intent to rob.

A conspiracy may be shown by circumstantial evidence. See Morgan v. State, 519 S.W.2d 449 (1975); Kay v. State, 489 S.W.2d 861 (Tex.Cr.App.1973), and Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974).

An agreement does not have to be made in words. A nod of the head or other gesture could be enough to manifest assent.

We should hold the evidence sufficient to support the conviction.


source: Caselaw Access Project

author: ODOM, Judge.

license: Public Domain

text:
    Johnny THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 52206.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.

      Richard Thornton, Galveston, Court appointed, for appellant.
    Ronald L. Wilson, Dist. Atty., Jack C. Brock, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted for burglary. His punishment, enhanced pursuant to V.T. C.A. Penal Code Sec. 12.42(d), was assessed at life imprisonment.

Appellant first asserts that the trial court erred in refusing his motion to inform the jury panel and the jury of the punishment that would be assessed under Sec. 12.42(d), supra, which provides:

“If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.”

Appellant was indicted as an habitual criminal pursuant to this statute. At the punishment stage of the trial, he pleaded “untrue” to the previous convictions asserted by the State. The jury, however, returned a finding of “true” to the State’s allegations. In accordance with the mandatory language of Sec. 12.42(d), supra, appellant’s punishment was fixed at life imprisonment.

Thomas claims that he has a right to inform the jury panel and the jury of the possible maximum punishment that may be assessed. Under the former Penal Code, the discussion of the result of a penalty absolutely fixed by law was not allowed during the voir dire examination nor during guilt or punishment stage of the trial. Knox v. State, 400 S.W.2d 750; Punchard v. State, 154 S.W.2d 648.

The question before us is whether this prohibition is continued with respect to Sec. 12.42(d), supra. The practice commentary to that Section informs us that it “preserves” Art. 63, supra, of the former code. Carvajal v. State, 529 S.W.2d 517.

We see no reason to abandon our previous decisions on this issue. We hold that it was proper for the trial court to prohibit the discussion of a punishment absolutely fixed by law during all stages of the trial. The first ground of error is overruled.

Grounds of error numbers two and six challenge the constitutionality of Sec. 12.42(d), supra. Appellant argues that the enhancement provision deprives him of the equal protection of the laws and subjects him to double jeopardy.

We again note that the enhancement provisions of the former Penal Code have been preserved by the current enactment. In past decisions of this Court, the validity of Art. 63, supra, has been upheld against all constitutional challenges. Thrash v. State, Tex.Cr.App., 500 S.W.2d 834; Cooper v. State, Tex.Cr.App., 492 S.W.2d 545, and cases cited therein. We have also recently held that Sec. 12.42(d), supra, is not viola-tive of the constitutional prohibitions against cruel and unusual punishment. Armendariz v. State, Tex.Cr.App., 529 S.W.2d 525.

Appellant presents no reason for us to depart from our past analysis of this issue. The grounds of error are overruled.

Appellant, in combined argument under grounds of error three, four and five, complains of rulings against his requested charges and objections to the charge at the guilt and punishment stages. His primary complaints appear to be of failure to charge on lesser included offenses (criminal trespass, V.T.C.A. Penal Code Sec. 30.05, and criminal mischief, V.T.C.A. Penal Code Sec. 28.03), failure to define “burglarious entry,” and failure to present the punishment issues in clear and understandable language.

Regarding lesser included offenses, the record shows that the State presented a case showing burglary, the appellant presented no defensive evidence, and the issues of criminal trespass and criminal mischief were not raised. Cf. Day v. State, Tex.Cr.App., 532 S.W.2d 302.

Regarding the use of “burglarious entry,” we observe that the portion of the charge complained of states:

“In this case, the indictment having charged that the burglarious entry was made with intent to commit the crime of theft, before you would be warranted in finding defendant guilty, you must be satisfied from the evidence beyond a reasonable doubt that the entry, if any, was so made with the intent to commit the specific crime of theft.”

Elsewhere in the charge, the offense was fully set out, both in the abstract statutory definition and in the application of the law to the facts. Also “entry” and other terms were defined in the charge. The court did not err in refusing additionally to define “burglarious entry.”

Without setting forth the charge on punishment, suffice it to say our examination of it leads us to conclude that the enhancement issues were adequately presented to the jury.

The third, fourth and fifth grounds of error are overruled.

The seventh ground of error contends that the trial court erred in refusing to grant appellant’s “various Motions of mistrial made during the trial.” The argument thereunder clarifies nothing. This is obviously multifarious and in violation of Art. 40.09(9), supra. It is, therefore, overruled.

As we construe his final ground of error, the appellant claims that the court erred when it allowed the State to introduce certified copies of his prior convictions during the jury argument on punishment. Appellant insists that this allowed the prosecutor to testify and improperly to reopen the case. The objection at trial was to the State being permitted to reopen its case.

The record reflects that appellant made this statement during the jury argument on punishment:

“If they had certified copies [of the prior convictions] from the District Clerk of the Dallas County Criminal Court No. 2, I believe, put them in now and I will withdraw my statement of untrue.”

The State waited until the appellant finished his argument. Then, the State introduced exhibits four through ten, the certified copies of the prior convictions.

Initially, we note that the jury never saw these exhibits. They were introduced for purposes of the record only.

The trial court has the discretion pursuant to Art. 36.02, V.A.C.C.P., to allow testimony to be introduced before the argument of the case is concluded. Holcomb v. State, Tex.Cr.App., 523 S.W.2d 661. This, coupled with appellant’s invitation to the prosecutor and the fact that the jury did not see these exhibits, leads us to the conclusion that no erroneous reopening of the State’s case has been shown. The final ground of error is overruled.

. The judgment is affirmed.

      . Article 63, V.A.P.C. (1925).

      . Also see, Woodard v. Beto, 447 F.2d 103 (5th Cir.), cert. denied, 404 U.S. 957, 92 S.Ct. 325, 30 L.Ed.2d 275; Ohler v. Beto, 356 F.2d 879 (5th Cir.).


author: DAVIS, Commissioner.

text:
    Larry ELKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 52224.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.
    Sam C. Bashara, San Antonio, for appellant.
    Tully Shahan, Dist. Atty., and Durwood Edwards, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for delivery of more than one-fourth ounce of marihuana. Punishment was assessed by the jury at five years and a $5,000 fine.

Appellant complains in his first ground of error that the trial court erred in partially overruling his request for a list of witnesses by ordering the State to identify only the witnesses it would use in its case in chief.

The record reflects that paragraph seven of appellant’s motion for discovery requests that the State be ordered to reveal:

“the names and addresses of all witnesses or possible witnesses who are known to the attorneys for the State or any of its agencies.”

Appellant’s complaint appears to be bottomed on the court’s action in limiting disclosure to those witnesses that the State would use in its case in chief. Hoagland v. State, Tex.Cr.App., 494 S.W.2d 186, is adverse to this argument.

Appellant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for the proposition that he is entitled to the disclosure of any and all evidence favorable to him in connection with the accusations pending against him, including the names of any witnesses to the alleged marihuana transaction. The record does not reflect, nor does the appellant suggest, that any evidence favorable to appellant was suppressed or that as a result of the court’s ruling there was a failure to disclose evidence which might have exonerated appellant. Brady v. Maryland, supra; Appleman v. State, Tex.Cr.App., 531 S.W.2d 806; Means v. State, Tex.Cr.App., 429 S.W.2d 490.

No error is shown.

Appellant contends that the court erred in failing to instruct a verdict of not guilty in that the State did not prove that he delivered over one-fourth ounce of marihuana because the State did not negate the existence of the excluded materials in the statutory definition of marihuana.

Section 1.02(17) of the Controlled Substances Act excludes certain parts of the marihuana plant from the definition of marihuana; i. e., the resin, mature stalks, and sterilized seeds.

Section 5.10 of the Controlled Substances Act provides in pertinent part:

“(a) It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.”

After setting forth Sec. 5.10, supra, this Court in Doggett v. State, 530 S.W.2d 552, held:

“. . . the provisions of See. 1.02(17) of the Controlled Substances Act which exclude certain materials from the definition of marihuana are in the nature of exceptions and that the burden of going forward with the evidence pertaining thereto rests upon the person claiming their benefit; . . .

Appellant recognizes that our decision in Doggett is adverse to his position, but urges that it is in direct conflict with the United States Supreme Court’s decisions in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In Winship, it was held that the due process clause protects the accused, whether a juvenile or an adult, against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In Mullaney, a Maine statute was held unconstitutional which required a defendant to establish by a preponderance of the evidence that he acted in a heat of passion on sudden provocation in order to reduce murder to manslaughter.

The holding in Doggett construing Secs. 5.10 and 1.02(17) of the Controlled Substances Act does not have the effect of shifting the burden of proof or burden of persuasion from the State to the accused. The burden of proof does not change simply because the accused has the burden of producing evidence to establish a defensive plea. See Escamilla v. State, Tex.Cr.App., 464 S.W.2d 840; V.T.C.A. Penal Code, Secs. 2.03, 2.04; 1 McCormick & Ray, Texas Evidence, Sec. 47 (2d ed. 1956); 23 Tex.Jur.2d, Evidence, Secs. 116-119 (1961).

In the instant case, appellant produced no evidence to show that the substance identified as marihuana contained any parts excluded by the statutory definition.

We cannot agree that our decision in Doggett is in conflict with the United States Supreme Court’s decisions in Win-ship and Mullaney and conclude that the trial court was not in error in failing to grant an instructed verdict of not guilty for failure of the State to negate the existence of excluded materials.

In light of our disposition of the foregoing ground of error, we find no merit in appellant’s contention that the court committed fundamental error by improperly defining marihuana in its charge. Appellant’s complaint is based on the omission of the provision contained in Sec. 1.02(17), supra, that certain materials are not included in the definition of marihuana. As heretofore noted, no evidence was offered that the substance identified as marihuana contained any of the excluded materials. No objection was voiced to the court’s charge and in such instances reversal will not result unless fundamental error appears in the charge. Moreno v. State, Tex.Cr.App., 541 S.W.2d 170. Even if there had been evidence that the contraband contained excluded materials, it would have been incumbent on appellant to voice an objection that the definition did not contain “any exemption or exception” set forth in See. 1.02(17), supra. We reject appellant’s contention that the court’s charge contained fundamental error.

Appellant’s contention that the court erred in overruling his motion for new trial is based on the same arguments that have already been advanced by appellant and decided adversely to him.

The judgment is affirmed.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Larry Joseph GUILLOT, Appellant, v. The STATE of Texas, Appellee.
    No. 53254.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.

      Harold J. Laine, Jr., Port Arthur (on appeal only), for appellant.
    Tom L. Hanna, Dist. Atty., Paul E. Ña-man, Asst. Dist. Atty., Beaumont, 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 an order revoking probation. On March 27, 1972, appellant entered a plea of guilty to an indictment charging him with the offense of passing as true a forged instrument. His punishment was assessed at three (3) years, but imposition of sentence was suspended and he was placed on probation subject to certain conditions, including:

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

On February 18,1975, a motion to revoke probation was filed alleging that the appellant had violated probation by speeding, by driving without a license, by carrying a prohibited weapon and being in possession of cocaine on January 18,1975 in Chambers County, where the motion alleged he was presently confined. A capias for appellant’s arrest was issued the same day. Subsequently, a bench warrant was issued for the appellant. Thereafter on May 1, 1975 (after the probationary period had expired on March 27, 1975), an amended motion to revoke was filed alleging, but in greater detail, the same violations of probation which had been pleaded in the revocation motion filed on February 18th with the exception that the amended motion alleged the possession of heroin instead of cocaine.

As a result of the charges against the appellant in Chambers County, there appears to have been some delay in his return to Jefferson County. On May 27, 1975, a revocation hearing was conducted. After hearing most of the evidence to be offered, the court passed the matter until June 9, 1975 at appellant’s request in order for him to obtain a witness. It was then passed until June 16,1975, at which time the court revoked probation upon the four grounds alleged.

The record reflects that on January 18, 1975 Harry Styles, a highway patrolman for the Texas Department of Public Safety, was on duty in Chambers County when he received a radio report that there was a blue Buick proceeding toward Houston on Interstate 10 with an occupant who seemed to be very intoxicated. A few moments later, Styles observed a car meeting that description proceeding toward Houston on Interstate 10 at a speed of 65 miles per hour in a 55 mile per hour zone. Styles gave pursuit with his red lights shining and the car pulled over to the side of the road and stopped. Appellant, the driver, got out of the car and approached Styles. Appellant had no driver’s license. The passenger in the car was passed out and Styles had to assist him into the patrol car. At this time Styles noticed appellant pull up his trouser leg and remove a brown paper sack from his sock and throw it under the car. Styles recovered the sack and found that it contained a brown substance which resembled heroin or cocaine. Both appellant and the passenger were placed under arrest. Styles then radioed for a wrecker and when it arrived to haul appellant’s car away Styles searched the car. Sticking out from under the front seat on the passenger’s side he observed the butt of a pistol which he retrieved. A further search revealed an automatic pistol under the seat behind the first pistol. Both pistols were loaded.

On appeal for the first time the appellant contends the motions to revoke were fatally defective in that both alleged the appellant was convicted and placed on probation on March 27, 1973 instead of March 27, 1972. While it is true that the motions contained such allegations, it is obvious that the same was the result of clerical errors. An Assistant District Attorney testified he was present in court when the appellant was convicted on March 27, 1972. Further, the judgment, order revoking probation and docket sheet, all in the record approved without objection, reflect the correct date of conviction. The trial court also can take judicial notice of the correct date of conviction and the granting of probation. No error is shown. Mason v. State, 495 S.W.2d 248 (Tex.Cr.App.1973); Isabell v. State, 494 S.W.2d 572 (Tex.Cr.App.1973).

Appellant next urges that the court erred in revoking probation after the term of probation had expired. It is true that in order for the court to have jurisdiction to revoke probation both the motion to revoke and capias for arrest must be issued prior to the termination of the probationary period. Nicklas v. State, 530 S.W.2d 537 (Tex.Cr.App.1975); Coffey v. State, 500 S.W.2d 515 (Tex.Cr.App.1973). See also Lynch v. State, 502 S.W.2d 740 (Tex.Cr.App.1973); Howard v. State, 495 S.W.2d 252 (Tex.Cr.App.1973); Pollard v. State, 172 Tex.Cr.R. 39, 353 S.W.2d 449 (1962). Appellant calls attention to the fact that the amended motion to revoke was filed after the termination of the probationary period and no capias was issued thereafter.

It is observed that where the revocation motion is filed and the capias or arrest warrant issues prior to the expiration of the probationary period, the hearing conducted after the expiration of such but shortly after arrest is considered proper. See Ex parte Fennell, 162 Tex.Cr.R. 286, 284 S.W.2d 727 (1955); Leija v. State, 167 Tex.Cr.R. 300, 320 S.W.2d 3 (1958); Ortega v. State, 414 S.W.2d 465 (Tex.Cr.App.1967); Cox v. State, 445 S.W.2d 200 (Tex.Cr.App.1969); Bobo v. State, 479 S.W.2d 947 (Tex.Cr.App.1972); Bryant v. State, 496 S.W.2d 565 (Tex.Cr.App.1973); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Strickland v. State, 523 S.W.2d 250 (Tex.Cr.App.1975). And this is particularly true where the court’s order of arrest is followed by a diligent effort to apprehend and to hear and determine the claimed violation, Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963), or where the delay is due to the actions of the defendant. See Bryant v. State, supra.

In such cases, however, the right of the court to revoke is limited to those violations of probation alleged in the revocation motion filed prior to the expiration of the probationary period. McBee v. State, 166 Tex.Cr.R. 562, 316 S.W.2d 748 (1958); Cox v. State, supra (Concurring Opinion); Standley v. State, supra, footnote # 1.

In the instant case the State filed its revocation motion on February 18, 1975, and capias was issued the same day. Although the hearing was held after the expiration of the probationary period, the motion filed on February 18th was still pending and gave the court jurisdiction to pass on the question of revocation on the basis of violations alleged in that motion. The amended motion to revoke filed after the expiration of the probationary period did not confer jurisdiction on the court and was a nullity. The court was authorized to revoke, if supported by evidence, upon the grounds alleged with the exception of the allegation as to the possession of heroin, which allegation is found only in the amended motion. Support for the fact that the court utilized the revocation motion filed on February 18th is found in the order revoking probation and on the docket sheet, where the only mention of a revocation motion is to that filed on February 18th.

We overrule appellant’s contention.

In his remaining grounds of error appellant attacks the sufficient of the evidence to sustain the charge of speeding, and contends the pistols were obtained by an illegal search and seizure. Appellant’s contentions appear to be without merit, but we need not pass on such contentions. The record reflects that when asked how he pleaded to the allegation that he did not have a valid operator’s license he pleaded “True,” which was alone sufficient to support revocation. Mitchell v. State, 482 S.W.2d 221 (Tex.Cr.App.1972). Further, the evidence offered at the hearing supports such allegation in the revocation motion filed on February 18th.

The judgment is affirmed.

      . The delay in conducting the hearing appeared to stem from obtaining appellant’s transfer from Chambers County jail to Jefferson County jail. See and cf. Bryant v. State, supra.


text:
    Thomas Everett BAILEY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 53264-53266.
    Court of Criminal Appeals of Texas.
    Dec. 1, 1976.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty. and John Tatum, Jan E. Potts, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

These are appeals from two orders revoking probation and a conviction for felony theft. Appellant was originally convicted for possession of a controlled substance and burglary, assessed punishment at five years in each, and placed on probation. The probation was revoked for commission of the theft, in violation of the terms of his probation. Appellant entered a plea of guilty to the theft and was sentenced to three years’ confinement.

The appeals from the revocation of probation hearing contain a common ground of error. For convenience, we shall consider this contention first.

Appellant claims that the trial court abused its discretion by revoking the probation on the basis of his plea of guilty to the charge of felony theft. Appellant argues that it was necessary for the trial court to hear evidence supporting the State’s motions to revoke probation.

The hearing on the revocation motions was held concurrently with the trial before the court for the offense of felony theft. The evidence produced at this hearing consisted of a judicial confession and the guilty plea entered by appellant in regard to the offense charged.

In the case at bar, the revocation hearing and the trial for the offense of felony theft occurred before the same judge on the same day. Appellant was also represented by the same counsel during the entire course of the proceedings. Green v. State, Tex.Cr.App., 528 S.W.2d 617; Barrientez v. State, Tex.Cr.App., 500 S.W.2d 474. It was not improper for the trial court to revoke the appellant’s probation on the basis of his guilty plea to the offense of felony theft. We overrule the first ground of error.

Appellant also asserts that the indictment charging him with possession of a controlled substance in Cause No. 53,264 is fundamentally defective because it fails to state an offense over which the trial court had jurisdiction. This contention rests on the proposition that the charging instrument must allege what penalty group the alleged controlled substance is listed under in Sec. 4.04 of Art. 4476-15, V.A.C.S. (The Controlled Substances Act). In this manner, according to appellant, the trial judge can determine whether the offense charged in the indictment is a felony or misdemean- or.

The indictment in the case at bar alleged that appellant possessed lysergic acid diethylamide. There is but one grade and one punishment for possessing this controlled substance. Sec. 4.02(b)(5), Art. 4476-15, supra. Possession of any amount of this substance is a felony offense of the second degree. Our situation is distinguishable from those cases where the amount of the substance possessed by the accused determines whether the offense is a felony or a misdemeanor. See Mears v. State, Tex.Cr.App., 520 S.W.2d 380; Wilson v. State, Tex.Cr.App., 520 S.W.2d 377. See also Suarez v. State, Tex.Cr.App., 532 S.W.2d 602.

The trial court had jurisdiction over the offense charged in the indictment. The failure of the indictment to specify the penalty group is not a defect in this case. The second ground of error is overruled.

In his single ground of error in cause 53,266, appellant asserts the appeal should be dismissed because he was denied the statutory ten days before sentencing in which to file a motion for new trial. Payne v. State, Tex.Cr.App., 471 S.W.2d 815. The State asserts the time was waived. The undated waiver recites:

“COMES NOW DEFENDANT, and having been convicted herein, defendant knows he is entitled to ten (10) days in which to file a Motion for New Trial and Motion in Arrest of Judgment, and that he has a right to appeal said conviction to the Texas Court of Criminal Appeals, and Defendant waives his rights to said ten days period, waives his rights to file a Motion for New Trial, and Motion in Arrest of Judgment, and waives his right to appeal this conviction. Defendant prays that he be sentenced forthwith.
/s/ Michael H. O’Brien
ATTORNEY FOR DEFENDANT
/s/ Thomas Bailev
DEFENDANT
“The above Waiver of the ten day period to file a Motion for New Trial and Motion in Arrest of Judgment, and Waiver of filing Motion for New Trial and Motion in Arrest of Judgment, and Defendant's Waiver of his Right to Appeal are hereby in all things approved by the Court.
/s/ Zimmerman
JUDGE” (Emphasis added.)

Appellant asserts this waiver was premature and without effect, citing Ex parte Dickey, 543 S.W.2d 99 (1976).

Appellant is correct with respect to the waiver of his right to appeal, but we find the waiver of ten days for motion for new trial to be timely. The waiver (1) recites “having been convicted herein,” (2) prays that appellant “be sentenced forthwith,” and (3) was approved by the trial judge. These recitations with the court’s approval establish the waiver as after conviction and before sentencing. This is the proper time for waiving time to present a motion for new trial or in arrest of judgment, but is premature for waiving the right to appeal.

Notwithstanding the consequences of these findings for appellant’s ground of error, the appeal in this cause must be dismissed because no notice of appeal was filed herein. Isaacs v. State, Tex.Cr.App., 449 S.W.2d 255.

The appeal in cause 53,266 is dismissed, and the orders revoking probation in causes 53,264 and 53,265 are affirmed.


author: PEDEN, Justice.

text:
    Stanley STEARNS, Appellant, v. Fred McMANIS, Jr., Appellee.
    No. 16674.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    July 29, 1976.
    Rehearing Denied Sept. 30, 1976.
    Second Motion for Rehearing Denied Dec. 2, 1976.

      Weitinger, Steelhammer & Tucker; Don A. Weitinger, Houston, for appellant.
    No brief filed for appellee.
   PEDEN, Justice.

Mr. McManis sued Mr. Stearns for slander. A trial jury found that McManis, who bred, raised, bought, and sold Saint Bernard dogs and operated a kennel, was entitled to $200 as actual damages and $1,000 as exemplary damages because Stearns maliciously called him a “puppy miller.” The term is considered disparaging by dog fanciers. It describes one whose primary interest is in selling puppies for profit with little concern for their health or for improving the breed.

The appellant’s points of error are based on the jury’s findings of malice and exemplary damages and on the absence of a finding of special damages. We affirm the judgment of the trial court.

Stearns met McManis through McManis’ newspaper ad offering Saint Bernard puppies for sale. Stearns, unlike McManis, had considerable expertise in the breeding, training, and showing of Saint Bernards. He offered to help McManis in these areas, and they became friends and co-owners of a Saint Bernard that they showed with some success. Stearns testified he became concerned and expressed displeasure when McManis purchased several puppies in Indiana and brought them to Houston for resale. Stearns indicated his involvement was as a hobby in showing the dogs and in improving the breed. McManis testified to similar interests, but he also built a kennel and brought in Saint Bernards to sell. Their relationship became strained. Later, when McManis applied for membership in a Saint Bernard Club in which Stearns was an original member and served as director, the application was rejected. The witnesses agreed that a high percentage of Saint Bernard dogs have an inherited disease, dysplasia, a serious malformation of the joint between the hip bone and the pelvis. It can be reduced only by careful selection of the dogs for breeding.

The jury found in response to special issues (as indicated) that 10) Stearns told others that McManis was a puppy miller; 11) the statement was false; 11-A) but Stearns believed it was true; 11-B) Stearns made the statement only to members of the Saint Bernard Club; 12) Stearns used the term puppy miller in such a manner that it impeached the virtue or reputation of McManis; 16) $200 would reasonably compensate McManis for his damages; 17) the statement was made with malice; and 18) McManis was entitled to $1,000 as exemplary damages. Malice was defined as “ill will, bad or evil motive of (sic) such gross indifference to the rights of others as will amount to a willful or wanton act.”

The appellant complains in points of error five through eight that the court erred: (5) in not submitting an issue on special damages as special damages must be proven to sustain an action for slander, (6) in entering judgment for plaintiff on the jury’s answer to Special Issue No. 16 that awarded general damages as there was no evidence of special damages, (7) in entering judgment upon and in failing to set aside the general damage finding, Special Issue No. 16, as the evidence of special damages was factually insufficient, and (8) was against the great weight and preponderance of the credible testimony.

The appellee did not file a brief. The appellant points out that there was no finding that the statement complained of was actionable per se and argues that where the defamatory words are not actionable per se special damages must be proved in order to sustain an action for slander.

Special Issue No. 16 stated:

“What sum of money, if any, if paid now in cash do you find from a preponderance of the evidence would reasonable compensate the Plaintiff for his damages, if any, sustained as a direct and proximate result of such false statement or statements, if any, found by you in answer to Special Issue No. 14 and/or Special Issue No. 11?”

The appellant objected to the submission of this issue because:

“. . . the Plaintiff has failed to show any items of special damages which must be required before there can be a finding of general damages in a slander case.”

Defamatory language may be actionable per se (in itself) or actionable per quod (only on allegation and proof of special damages). The distinction is based on a rule of evidence, the difference between them lying in the proof of the resulting injury. Arant v. Jaffe, 436 S.W.2d 169 (Tex.Civ.App.1968, no writ), citing 36 Tex.Jur.2d 280, Libel and Slander, § 2. In general, “oral words, however, though false and opprobrious, are not actionable without pleading and proof of special damages unless they impute to another the commission of a crime or affect a person injuriously in his office, profession or occupation . .” Under the exception that makes false words spoken of another’s condition or conduct actionable per se as will affect one in his office, business or profession, the words must touch him in some way that is harmful to one engaged in his particular office, business or profession. Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App.1959, writ ref. n. r. e.), citing 3 Restatement of Torts 177-181, § 573 and 53 C.J.S. Libel and Slander § 32, p. 78. If the language is clearly actionable per se, the court may and should instruct the jury that it is so as a matter of law, and should not leave its character to them for determination, 36 Tex.Jur.2d 484, Libel and Slander § 156; Pridemore v. San Angelo Standard, 146 S.W.2d 1048 (Tex.Civ.App.1941, writ dism. judgm. corr.).

We presume in support of the trial court’s judgment that the use of the term puppy miller was determined by the judge to be actionable per se, and we hold that he was entitled to do so under the evidence in this case. There was uncontradicted evidence that McManis was in the business of buying and selling Saint Bernard puppies and that the disparaging words would be peculiarly harmful to one engaged in that business.

Further, points of error 7 and 8 were not preserved for appellate review by complaint in the motion for new trial, which stated only that the trial court failed to set aside the finding of actual damages. A trial court cannot refuse to enter judgment because the evidence was factually insufficient (if it is more than a scintilla) or because the finding was against the great weight of the evidence. Only a “no evidence” point was preserved. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas Law Review 361.

The appellant contends in his ninth point that the statement was qualifiedly privileged. It is settled that qualified privilege is an affirmative defense in the nature of confession and avoidance. Denton Publishing Co. v. Boyd, 460 S.W.2d 881 (Tex.1971). There were no pleadings raising that defense, nor were any issues based on it submitted or requested. The appellant has waived it. Rule 279, Texas Rules of Civil Procedure, provides:

“Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived; . . .”
Stearns’ first point of error is:
“The trial court erred in entering judgment for the plaintiff on the jury findings to Special Issues Nos. 17 and 18 and awarding exemplary damages because there was no evidence that raised an issue of fact of actual or express malice on defendant’s part in delivery of slanderous communication.”

In considering no evidence points we must consider only the evidence and the inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

“The character of malice that must be shown to warrant the recovery of exemplary damages is not entirely clear. Generally, it is said that the malice must be actual or express, and not merely imputed. On the other hand, it has been held that malice implied or inferred from the wrongful act committed is sufficient. Possibly resolving these apparent inconsistencies, it has been said that necessary malice may be shown by evidence of personal ill will or animosity on the part of the defendant toward the plaintiff, or it may be inferred where the libelous article was recklessly or carelessly published, that in some cases this is referred to as ‘express malice’ and others as ‘implied malice,’ and that this distinction is in name rather than in fact because it is malice whether it is proved by direct evidence in the one case, or inferred from reckless or carelessness in the other.” 36 Tex.Jur.2d 397-398, Libel and Slander § 95.

Malice may be established by proof of facts and circumstances from which it may reasonably be inferred. It may be shown by, among other things, proof that the defendant entertained ill-will toward the complaining party. Buck v. Savage, 323 S.W.2d 363 (Tex.Civ.App.1959, writ ref. n. r. e.). In our case, McManis testified without contradiction that the parties were good friends until, prior to the date when the defamatory statement was made, they had an argument during a bridge game. Stearns told members of the Saint Bernard Club of his dislike for McManis and said that if McManis was admitted to the club he would get out. He testified that it appeared they could not be friends and could not get along in a reasonable fashion.

Stearns called no witnesses and his own testimony was given only on examination by opposing counsel. As we have noticed, the jury found the defamatory statement was false, that Stearns believed it was true, and that it was made with malice. No issue was submitted or requested asking whether Stearns had reasonable grounds for believing the statement was true, and the jury was entitled to conclude from the evidence that Stearns was unreasonable in calling McManis a puppy miller. Stearns testified that “. . . profit is the one thing that I maintain is impossible and immoral to obtain from breeding these dogs . ” He also related that he “gradually and painfully over a period of a few years and rather suddenly in that summer of 1970” learned that McManis was attempting to earn money buying and selling dogs. He said learning this “was a really rude shock.” After that, although he and McManis were co-owners of a Saint Bernard dog and he could reasonably have been expected to have regularly seen her at McManis’ kennels, it does not appear that he did. The jury was entitled to conclude that he felt so much ill-will toward McMan-is that he was unwilling to fairly and reasonably observe McManis’ operation of his kennel while visiting his dog and thus incidentally investigate the truth of his defamatory statement even though he had good reason, to do so. We overrule the first point of error.

The appellant did not preserve, in his amended motion for new trial, factual sufficiency or great weight points for his second and third points of error. The only assignments of error to which these points are germane are those alleging that the trial court erred in entering judgment on the answers to Special Issues 17 and 18 because the evidence was insufficient and because the findings were against the great weight of the evidence. These objections preserve only “no evidence” points. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970).

The appellant’s fourth point is that the trial court erred in entering judgment upon and in failing to set aside the exemplary damage finding, Special Issue No. 18, as the statement was qualifiedly privileged. We overrule this point for the same reason we gave in overruling the ninth point.

Affirmed.

ON MOTION FOR REHEARING

We withdraw the holding in our previous opinion that the appellant had waived the affirmative defense of qualified privilege. We agree with him that special issues HA and 11B submitted that defense. As we noted, the jury found in response to those issues that when Stearns uttered the defamatory statement (sic) he believed it to be true and that such statements were made only to members of the Saint Bernard Club. The appellant’s ninth point of error is that the trial court erred “in entering judgment upon and in failing to set aside the general damage finding ... as the statement was a qualified privilege.”

Qualified privilege comprehends all communications made in good faith on any subject matter in which the author has an interest, or with reference to which he has a duty to perform to another person having a corresponding interest or duty. 36 Tex.Jur.2d 357, 358, Libel and Slander § 71.

However, the privilege is lost jf the defendant was in any degree actuated by malice in making or publishing the defamatory statement. Neither does the privilege exist if he who utters the statement was actuated by malice in part and in part by lawful motive. Butler v. Central Bank & Trust Co., 458 S.W.2d 510 (Tex.Civ.App. 1970, writ dism.); Cranfill v. Hayden, 97 Tex. 544, 80 S.W. 609 (1904).

The appellant complains in his first point of error that there was no evidence to support the jury’s finding, in response to the 17th" special issue, that he made the statement in question with malice.

In cases involving qualifiedly privileged defamation, although the existence of actual or express malice is not presumed as a matter of law and must be proved, it need not be proved by direct or extrinsic evidence; its existence is sufficiently shown by evidence of facts and circumstances from which it is reasonably in-ferable. It may be inferred from the relation of the parties, the circumstances attending the publication, the language used, and from the words or acts of the defendant before, at, or after the time of the communication; but there must be evidence from which the jury can infer malice existing at the time of publication and actuating it. Malice is not implied or presumed from the mere fact of the publication, nor may it be inferred alone from the character or vehemence of the language used, nor found from the falsity of the statement alone. 36 Tex.Jur.2d 475, Libel and Slander, § 149.

There was other evidence of the defendant’s ill-will toward the plaintiff in addition to that we noted in our opinion. There was testimony that pursuant to the parties’ agreement, the plaintiff fed, kept, and cared for Pandora at considerable expense to him but could not derive any of his contemplated benefits of ownership because the defendant quit showing her and refused to carry out his agreement to have her bred. Further, when the plaintiff let a friend temporarily keep a second dog co-owned by the parties, the defendant demanded that the plaintiff take the dog back even though this resulted in expense to the plaintiff. The plaintiff bore the expense of providing for the co-owned dogs for a total of 3,202 days, but the defendant wouldn’t even discuss his share of the expense.

The plaintiff also said that the defendant -became critical of him and called his price exorbitant even though the puppies the defendant was selling were far inferior to the ones the plaintiff was bringing in and the parties were charging about the same prices. The jury was entitled to conclude that the defendant’s dealings with the plaintiff concerning the dogs that the parties had jointly purchased were so unreasonable as to demonstrate his jealously, personal animosity and ill-will toward the plaintiff.

The motion for rehearing is denied.


author: OSBORN, Justice.

text:
    TOWN AND COUNTRY MOBILE HOMES, INC., et al., Appellants, v. Euell Thomas STILES et ux., Appellees.
    No. 6528.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 25, 1976.
    Rehearing Withdrawn Nov. 24, 1976.

      Oppenheimer, Rosenberg, Kelleher & Wheatley, Inc., Carl Robin Teague, Mitchell & Stewart, John U. Hemmi, B. Frank Pen-nypacker, III, San Antonio, for appellants.
    Evans & Marshall, Allen Cazier, Louis E. Marshall, San Antonio, for appellees.
   OPINION

OSBORN, Justice.

This is an appeal from a recovery under the provisions of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm.Code Ann., Section 17.41. The purchasers of a mobile home recovered trebled damages and attorney’s fees from both the manufacturer and seller. We reverse and remand as to the manufacturer, and reverse and render as to the seller.

The Appellees, Euell and Evelyn Stiles, purchased an 80' X 14' mobile home, which had been manufactured by Town and Country Mobile Homes, Inc., from Seabury’s Mobile Home Sales, and signed an installment contract on September 6, 1972. The mobile home was delivered to their lot in San Antonio and set up for occupancy at the end of August, 1972. Prior to the purchase, the seller had furnished to the buyers several of the manufacturer’s brochures and had represented that this was a high quality mobile home. Mr. and Mrs. Stiles testified that they relied upon the written and oral representations made to them. Shortly after moving into the mobile home, they discovered numerous defects with doors, the ceiling, windows, drains, insulation and air and heating ducts, among other things. The seller made many service calls but never removed or repaired all the defects. The manufacturer sent a service representative on two occasions, the last time on June 18, 1973. He worked on heat ducts, installed an extra heat register in one bedroom, and repaired a leaking back door. On July 10, 1973, the service manager of the manufacturer wrote Mrs. Stiles and said in part: “I hope you are liking your mobile home a lot better, now that you have it all fixed up.” There was substantial testimony that it never has been “all fixed up” and most of the defects have never been repaired.

Although Appellees alleged a breach of contract, fraud and deceit in addition to their statutory rights, the case was only tried and submitted to the jury and recovery had under the Deceptive Trade Practices Act. The jury found Appellees had been adversely affected by the use or employment of a deceptive trade practice by both the manufacturer and seller which occurred after May 21, 1973; that Appellees had been adversely affected by the failure of the manufacturer and seller to comply after May 21, 1973, with warranties; that Appellees sustained actual damages of $5,000.00, and that their reasonable attorney’s fees were $5,000.00. Both Appellants attacked each of these findings with no evidence and insufficient evidence points, and both Appellants filed motions for instructed verdict and for judgment non ob-stante veredicto.

While there is evidence of misrepresentations and breach of warranty in connection with the sale in August and September, 1972, Appellants chose to seek recovery only for acts or practices occurring after the Act became effective on May 21, 1973, in order to obtain the trebled damages and attorney’s fees.

Certainly all of the warranties and representations as to the standard, quality or grade of the mobile home were made in August and September, 1972, long before the Act became effective. Mr. Thomas, the manager for the seller, testified that all service calls by the seller were prior to May 21, 1973, and that no misrepresentations were made as to repair service after May 21, 1973. Although Mr. and Mrs. Stiles testified to numerous service calls and efforts to remedy defects, they did not testify as to any such conduct by the seller after the effective date of the Act. Mr. Russell, service manager for the manufacturer, did do repair work after May 21, 1973, and did indicate that everything had been repaired in his letter in June, 1973.

In Cape Conroe Limited v. Specht, 525 S.W.2d 215 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ), the Court in passing on the liability of conduct prior to the effective date of the Act said:

“There is another reason that the trial court properly held that the Deceptive Trade Practices Act did not relate to the plaintiff’s cause of action. * * * Section 17.63 of the Act states that ‘[t]he provisions of this subchapter apply only to acts or practices occurring after the effective date of this subchapter . . . .’ Thus, the application of the Act to those practices of the defendants that occurred before the effective date of the Act would be giving it a retroactive application contrary to its express language. * *

To avoid this result, Appellants urge that the breach of warranty was a continuing act which occurred after May 21, 1973. If a breach of warranty occurred on the date of sale of defective or misrepresented goods and then was a continuing breach each date until repaired, then it would appear that limitations would never begin to run because of the continuing nature of the breach. We believe that once the defects were known, shortly after the sale in this case, the breach of warranty had occurred, the cause of action arose and damages would be determinable at that time. Appellants also urge liability upon the part of the seller under a service contract. That agreement was given at the time of sale in 1972, and it contained no warranties or representations which were made after May 21, 1973, even though it was effective until September, 1973.

Having concluded that there is no evidence to support the jury finding against the seller, and following the decision in the Specht case, we reverse and render as to the seller. The manufacturer having made repairs after May 21, 1973, and we having concluded that the letter to Mrs. Stiles that the mobile home was “all fixed up” is some evidence of a deceptive trade practice, an issue was raised as to the liability of the manufacturer under Section 17.46(13) of the Act.

Nevertheless, we remand as to the manufacturer because there is insufficient evidence to support the jury finding on damages. All of the evidence as to the value of the mobile home was with regard to the fair market value; first, as it was represented prior to the sale, and then, as to its value at the time it was sold with various defects in September, 1972. Damages that occurred at the time of sale because of existing defects were not the damages that occurred after May 21,1973, from misrepresentations as to repairs which had not been made. While some evidence was presented as to the cost of installation of monaflex to keep extensive heat out due to lack of insulation, no evidence was offered to show the amount of damages because Mr. Russell did not make the repairs he represented as having been made in June, 1973. That seems to be the only damage that occurred after May 21,1973. Thus, we conclude that there is insufficient evidence to support the jury answer to Special Issue No. 5.

We sustain the manufacturer’s Point of Error Number Eight, and the seller’s Points of Error Numbers One, Three and Nine. It is not necessary for us to pass upon the other points of error.

The judgment of the trial Court is reversed, and the case is remanded for a new trial as to Town and Country Mobile Homes, Inc., and judgment is rendered that Appellees take nothing of and from Robert Seabury, individually and doing business as Seabury’s Mobile Home Sales.

ON MOTION FOR REHEARING

Following the filing of motions for rehearing by Euell and Evelyn Stiles and Town and Country Mobile Homes, Inc., all parties filed a joint motion to withdraw the motions for rehearing and for issuance of the mandate to the trial Court for the entry of an agreed order of dismissal. We grant the joint motion and the mandate will issue.


author: EVANS, Justice.

text:
    EXXON CORPORATION, Appellant, v. Wesley WEST et al., Appellees.
    No. 16723.
    Court of Civil Appeals of Texas, Houston (1st Dist.)
    Oct. 7, 1976.
    Rehearing Denied Nov. 4, 1976.

      McGinnis, Lochridge & Kilgore, Robert C. McGinnis, James H. Cowden, Peter M. Low-ry, Austin, Walter B. Morgan, Dillard W. Baker, Houston, of counsel, for appellant.
    Stayton, Maloney, Hearne & Babb, John W. Stayton, Austin, for appellees.
   EVANS, Justice.

Exxon Corporation, the successor in interest to Humble Oil & Refining Company, appeals from a judgment decreeing the rights of certain royalty owners, the Wests, to gas produced from an underground reservoir being used by Exxon for the purpose of storing extraneous gas.

The trial court’s judgment will be reversed and rendered.

The use of the West Clear Lake (Frio) reservoir for gas storage purposes was authorized by order of the Texas Railroad Commission, entered over the Wests’ protest on January 20, 1970. The Wests did not appeal that order but on March 26, 1970, filed this action seeking to permanently enjoin Humble from using the reservoir for gas storage purposes until all native gas had been produced and, in the alternative, seeking a declaratory judgment that Humble should be required to pay royalty on all gas produced from the reservoir regardless of whether it should be native gas or injected gas. On September 1,1970, Humble commenced, and has thereafter continued, the injection of extraneous gas into the reservoir.

On a previous trial of this case, the trial court denied injunctive relief, but granted the declaratory judgment requested by the Wests. On appeal, the trial court’s judgment was reversed and remanded by the Court of Civil Appeals with instructions to enter the permanent injunction. 496 S.W.2d 212. However, the Supreme Court reversed the intermediate court’s judgment, holding that the injunctive relief was not warranted, and that the cause should be remanded for the purpose of determining the amount of royalty which Humble should be required to pay to the Wests. Humble Oil & Refining Company v. West, 508 S.W.2d 812, 819 (1974). In its opinion, the Supreme Court stated the rule which would be applicable to the further trial of the case:

“. . . [I]t is our view that the act of commingling native and extraneous gas did not impose upon Humble the obligation of paying royalties on all gas thereafter produced from the reservoir, if the evidence establishes with reasonable certainty the volume of gas reserves upon which the Wests would have been entitled to royalties, absent injection of extraneous gas. The burden of this showing devolves upon Humble after proof by the Wests of their royalty interest, together with proof of Humble’s commingling of extraneous and native gas. The threshold question for determination is whether the requisite computation of reserves is capable of establishment with reasonable certainty; and, if so, the further question to be resolved is whether the burden defined above is discharged by Humble under the evidence .

At the second trial of this case, from which this appeal is taken, Exxon presented two witnesses, a geologist and a petroleum engineer, both of whom were within its employ, who gave their expert opinions that the maximum (total) amount of gas which could have been in place in the reservoir as of September 1,1970, the date storage operations were commenced, would have been 95.3 BCF (billion cubic feet). Theirs was the only testimony presented at the trial. At the conclusion of their testimony, both sides rested, and the trial court entered its judgment in favor of the Wests, declaring that Exxon is required to account to the Wests for royalty on all gas which is produced from the field, regardless of whether the gas is native or stored. In support of its judgment the trial court found, among other things, that Exxon had not established with reasonable certainty the maximum volume of either the “recoverable” gas or of the “total” gas which could have remained in the reservoir when gas storage operations were first commenced. In its findings the trial court specifically declared that it did not believe the witnesses’ opinions that their calculations were reasonably certain as to the “maximum” volume of “recoverable” gas and it found that such determination could not be made with reasonable certainty. For reasons not clear, it made no specific finding to this effect with respect to the witnesses’ opinions concerning the maximum “total” amount of gas remaining in the reservoir. The trial court concluded, as a matter of law, that upon its findings that Exxon had not established with reasonable certainty the volume of gas reserves upon which the Wests would have been entitled to royalties, absent injection of extraneous gas, the Wests were entitled to be paid royalties on all gas produced from the reservoir, whether native or extraneous.

This court is first presented with the problem of determining the nature of the burden imposed upon Exxon under the Supreme Court’s ruling. The Wests contend that the Supreme Court’s decision required Exxon to establish with reasonable certainty the particular volume of recoverable gas upon which the Wests would legally have been entitled to receive royalties in the absence of injection of extraneous gas into the reservoir. Exxon contends that even if it failed to establish with reasonable certainty the amount of recoverable gas in the reservoir, it met its burden by establishing with reasonable certainty the maximum total amount of gas which could have been in the reservoir at the time storage operations were commenced. It is Exxon’s position that even though the Wests were only entitled to royalties on recoverable gas produced from the reservoir, by virtue of Exxon’s stipulation in the case it was agreed that the Wests would receive payment on the basis of the maximum, or total amount of gas in place at the time storage operations were commenced. Thus, Exxon argues that its burden should be examined on the basis of its stipulated willingness to grant a “windfall” to the Wests, as opposed to the alternative of having to pay royalties to the Wests on gas produced from the field “forever.”

In view of Exxon’s stipulation, this court holds that its burden was met if by a preponderance of the evidence it established with reasonable certainty the maximum total amount of gas which could have been in place in the reservoir when storage operations were commenced. The question is whether the evidence compels a finding that Exxon met this burden.

The only testimony presented was that of Worthy R. Warnack, a geologist, and Robert E. Whitson, a petroleum engineer, both of whom were employed by Exxon and who were qualified as expert witnesses on the issues in question. Both witnesses had also testified at the first trial and in that connection they had prepared the Exxon Reserve Study, representing their expert opinion of the actual total amount of gas in place and the actual amount of recoverable gas in the reservoir at the time gas storage operations were commenced. At the second trial, these witnesses again presented the Exxon Reserve Study and in addition, they presented the Exxon Maximum Reserve Study, representing their expert opinion of the maximum amount of gas which could have been in place in the reservoir at the time gas storage operations were commenced. According to the witnesses’ testimony, the maximum reserve study was made for the purpose of providing a “margin of error” safety factor by extending every parameter (from which, collectively, the approximate amount of reserves was determined) to the “bounds of reason.”

The bases for the Exxon Reserve Studies were electric well logs, core samples, well test information, and similar data obtained from some 32 wells drilled over the 1500 acre area of the West Clear Lake Field. Although the Wests contend that Exxon had data covering only a small percentage of the reservoir, the geologist Warnack testified that he had more information available to him than a geologist usually has in making reserve estimates in a gas field. He testified that he had the logs for about 35 wells, some inside the field and some outside, and that the density of wells was greater than would generally be found in Gulf coast area test fields. By using this information, he was able to determine the maximum remaining acre feet of gas sand in the field.

It was principally Warnack’s testimony which established the size, the productive extent, of the reservoir. It was necessary to make a determination of the amount of gas originally in place so that by subtracting therefrom the amount of gas which had been produced, the volume of gas remaining in the reservoir could be computed. War-nack testified that the reservoir originally contained 155,502 acre feet of productive gas sands, a productive areal extent of approximately 1500 acres. He testified that as of January 1, 1969, there were about 21,744 acre feet of gas sand remaining in the reservoir.

In order to determine the size of the reservoir, it was necessary to fix the location of its ceiling, which was the point of contact of the gas bearing Frio sand formation with the impermeable shale formation, and to determine the point of contact between the sand formation and the salt water bearing sand which formed the floor of the gas reservoir. It was also necessary to determine the areal location of a fault which sealed the gas within the reservoir and constituted its eastern boundary. Using the well logs and other data available to him, Warnack stated his opinion that 21,744 acre feet of productive gas sand remained in the reservoir on January 1, 1969. The petroleum engineer, Whitson, using War-nack’s geological interpretations, computed the remaining gas in place in the reservoir on September 1, 1970, to be 35 BCF.

At the first trial, in response to the trial court’s question, Warnack testified that he could not state the “margin of error” in the Exxon Reserve Study. Accordingly, in preparing for the second trial, Warnack and Whitson prepared the Exxon Maximum Reserve Study to determine just how large the reservoir could be and just how much remaining gas the reservoir could contain “within the bounds of reason.” In making his geological interpretation for the Maximum Reserve Study, Warnack picked the highest point on the log for the ceiling of the reservoir, the deepest point for the gas/water contact and the most eastern areal location for the fault; all of these points being extended, in the witnesses’ opinion, to the “bounds of reason.” Thus, the Maximum Reserve Study was intended to depict the outermost parameters of the gas reservoir as might be determined by any reasonable geologist or engineer interpreting the data available. In furtherance of this purpose, Warnack testified that the well logs were re-evaluated in order to provide as high a net effective pay interval in each well as was reasonably possible and the top of the reservoir was also enlarged by flattening the contours of the crest. Whitson testified that in making the Maximum Reserve Study, their approach was to determine the maximum gas reserves which reasonably could be possible in the reservoir, by the process of extending to the bounds of reason each of the individual parameters that entered into their reserve calculations. Under the Maximum Reserve Study, the estimated amount of the productive gas sand remaining in the reservoir on January 1, 1969, was increased from 21.7 thousand acre feet to 51.7 thousand acre feet and the maximum total remaining gas in place on September 1, 1970, was increased from 35 BCF to 95.3 BCF. On the basis of the Maximum Reserve Study, Whitson testified that in his opinion it was reasonably certain that the gas in place in the reservoir at the time of injection of extraneous gas could not have exceeded 95.3 BCF.

The Wests did not offer any testimony to controvert the testimony of Exxon’s expert witnesses. They did offer in evidence the statement of facts and exhibits from the first trial “for whatever benefit they may have as admissions and declarations against interest.” They argue that the testimony of Exxon’s own witnesses “completely demolished” its claim that its reserve study was reasonably accurate and that both studies were the product of witnesses’ opinions which the trial court was at liberty to disregard.

In their attack on Warnack’s testimony the Wests point to the fact that remapping, which resulted from four new wells being drilled between the date of the Railroad Commission hearing and the second trial, resulted in about a 2% increase in the number of net acre feet. The Wests argue that it is obvious that if additional wells should be drilled, the size of the reservoir might be further increased. Although Warnack admitted he didn’t know whether drilling of more wells would result in more changes, he testified that in his opinion the net effect of any such changes would be very minor. He stated that the small change caused by the four new wells indicated very close control over the reserve calculations due to the well density in the field and high quality of data available.

The Wests complain of Warnack’s testimony as to the areal location of the fault on the east side of the reservoir, contending that his movement of the fault some 300 feet to the east of its location as shown on the Reserve Study, demonstrates the inaccuracy of its location. Warnack testified that they had been able to locate the fault in about 22 wells over the field and that by entering the subsea elevation of that fault by the wells’ symbol, they had contoured the fault plain. He admitted that the determination of where a well cuts a fault involves some judgment and opinion upon which geologists sometimes differ, but that there was good fault control so that in his opinion they were able to draw a very accurate presentation of the fault plain. After explaining in detail how he found and located the fault in the Reserve Study and how and why he changed it in the Maximum Reserve Study, he testified that, in his opinion, the location as shown in the Reserve Study was correct; that the Maximum Reserve Study merely indicated the farthermost point to which the fault location could be extended within the bounds of reason.

The Wests also level criticism at War-nack’s testimony with respect to the location of the gas/water contact constituting the floor of the reservoir. The Wests point to Warnack’s testimony at the first trial, indicating that he could not explain why some of the wells tested had salt water levels higher than the level which he picked as the gas/water contact for the reservoir. At the second trial, Warnack used a system of formation “levels” to explain how certain impermeable shale barriers might cause a particular well to have a gas/water contact which would not be consistent with other wells. There is no inconsistency in War-nack’s explanation and the testimony given by him at the prior trial.

In making his computation of remaining gas in place, the engineer Whitson applied porosity, permeability, and formation volume factors to the predetermined net acre feet of gas sand in the reservoir. The Wests complain of Whitson’s estimates of the porosity and permeability factors, contending that his estimates were obtained by striking purely mathematical averages. Whitson’s testimony, both at the first and second trials, established that these estimates were, in his opinion, reasonable and in line with the porosity and permeability factors found in other Frio sandstone fields.

The Wests argue that there are many possibilities for error in the Maximum Study. They complain that in obtaining the net effective sand count in each well, War-nack counted intervals containing half sand and half shale as though they contained pure gas sand. This method of computation is in accord with the stated purpose of the Maximum Reserve Study, and the increase in the net sand count in this manner was clearly beneficial to the Wests. The Wests also argue that Whitson did not give due effect to the structural position within the reservoir of the tracts under which the Wests own royalty interests, contending that due to the aquafier connected to the reservoir, there is a very strong and efficient water drive which can cause the production of a tremendous amount of gas from tracts high on the structure. The Wests contend that by ignoring structural position, Whitson overlooked the possibility that the tracts in which the Wests held royalty might ultimately produce much more gas than would be indicated by an areal share of the net acre foot values. The Wests’ contention overlooks the fact that the water drive affects only that gas which is recoverable from the reservoir, and since Exxon has stipulated that the Wests are entitled to have royalties determined on the basis of the maximum total volume of gas remaining in place in the reservoir, the water drive phenomenon would not be a relevant factor. Similarly, the Wests’ contention that the Maximum Study is inaccurate with respect to the recovery efficiency factor used to calculate recoverable gas in place is not relevant to the ultimate inquiry before the court.

The opinion testimony of expert witnesses, even though not contradicted by an opposing expert, is generally held not to be binding upon the trier of facts if more than one possible conclusion can be drawn from the facts. Gregory v. Texas Emp. Ins. Ass’n, 530 S.W.2d 105 (Tex.1975). This is particularly true where the experts’ testimony is based upon studies made while in the employ of the party who is offering their testimony. Luttes v. State, 159 Tex. 500, 324 S.W.2d 167, 189 (1959).

However, where the nature of the subject matter of the experts’ testimony is such that the trier of facts must be guided solely by the opinion of experts in that scientific field, the opinions given by the expert witnesses may be regarded as conclusive, if otherwise credible and free from contradiction and inconsistency. Scott v. Liberty Mutual Ins. Co., 204 S.W.2d 16, 18 (Tex.Civ.App.-Austin 1947, writ ref’d n. r. e.); Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943 (1944).

A review of the testimony of Exxon’s witnesses shows that their opinion given on the first trial as to the size and extent of the reservoir remains substantially unchanged at the time of the second trial. Their testimony with respect to the Maximum Reserve Study did not reflect any change in their opinion as to the actual location of the parameters of the gas reservoir, but instead indicated their estimate as to the reservoir parameters, extended to the “bounds of reason”. The expert testimony that the maximum total remaining gas in place on September 1, 1970, could not with reasonable certainty have exceeded 95.3 BCF, is uncontradicted either by direct testimony or by inferences to be drawn from the testimony presented. The only reasonable conclusion that can be drawn from the evidence presented is that afforded by the opinions of the Exxon witnesses.

Although Warnack and Whitson were employees of Exxon, and may be considered interested witnesses, their testimony was clear, direct and positive and there was nothing to cause any reasonable suspicion as to the credibility of their testimony. Furthermore, the record reflects that expert testimony available to the Wests could have been presented in contradiction of the testimony of Exxon’s witnesses. The fact that the Wests had an opportunity to offer contrary evidence and failed to do so, constitutes effective corroboration of the testimony of these witnesses. Bayou Drilling Co. of Texas v. Baillio, 312 S.W.2d 705, 709 (Tex.Civ.App.-Houston, 1958, writ ref’d n. r. e.); Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904 (1943); Gibbs v. Wheeler, 306 S.W.2d 929, 934 (Tex.Civ.App.-Austin, 1957, writ ref’d n. r. e.); McDonald, Texas Civil Practice, Vol. 3, Sec. 11.28.6, p. 250.

Exxon’s burden under the Supreme Court’s decision, and pursuant to its stipulation, was to establish by a preponderance of the evidence the maximum total volume of gas reserves in the reservoir at the time gas storage operations were commenced. It met this burden by presenting clear, positive and unimpeached testimony of experts who, upon sufficient factual bases, stated their estimate of this volume. The ultimate issue was not required to be proven with exact certainty, only with reasonable certainty. Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938).

Where, as in this case, there has been a conversion of goods through intentional commingling, and the evidence establishes a reasonably certain estimate of the extent of property converted, judgment should be entered upon the basis of such amount, even though the precise amount cannot be ascertained with reasonable certainty. Ortiz Oil Co. v. Luttes, 141 S.W.2d 1050, 1055 (Tex.Civ.App.-Texarkana 1940, writ dism’d by agr.).

The testimony of the witnesses, although interested, was corroborated and undisputed; in the absence of contrary evidence or inconsistency raising a reasonable suspicion as to its truth, it was conclusive of the issue. Texas & P. Ry. Co. v. Moore, 329 S.W.2d 293, 299 (Tex.Civ.App.-El Paso 1959, writ ref’d n. r. e.); Kamp v. Hargis Building Co., 238 S.W.2d 277, 282 (Tex.Civ.App.-Galveston 1951, writ ref’d n. r. e.).

In Teal v. Powell Lumber Co., 262 S.W.2d 223, 239 (Tex.Civ.App.-Beaumont 1953, no writ), a boundary suit, the expert was a surveyor who testified without contradiction as to ground objects he had found and measurements he had made; based thereon he gave his opinion as to the location of the original witness-trees called for as the survey’s corners. Holding that the trial court in a non-jury trial was not at liberty to disregard this testimony, the court stated:

“Counsel for appellee also advance the theory that the evidence adduced by ap-pellee, taken in conjunction with the physical aspects of the trees themselves, showed the witness Stonecipher to be so palpably in error about the ages of the sweet gum tree and the white oak tree, and in his opinion that they were original witness-trees called for at the northeast corners of the Allen league and the Sud-deth survey, that the trial court was at liberty to disbelieve and disregard all of the witness’ testimony. In essence, their contention appears to be that the trial court was warranted in finding, and should therefore be presumed to have found, that the witness did not bona fide entertain the opinions which he expressed, but swore falsely regarding them, and was therefore unworthy of belief in any of his testimony.
“We do not think the evidence warranted any such conclusion by the trial court, and since the testimony of the witness with reference to the objects he found on the ground, the measurements he made, etc., was uncontroverted, we are of the opinion that the rule announced in the case of Texas & N. O. R. R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 530, with reference to the province of the jury has equal application to the trial court in this instance; that is: ‘It is the province of the jury to decide the issues which are raised by conflicting evidence, but where there is evidence upon an issue and there is no evidence to the contrary, then the jury has not the right to disregard the undisputed evidence and decide such issue in accordance with their wishes.’ ”

'In the case at bar, the only conclusion which can reasonably be drawn from the evidence presented is that the maximum total gas remaining in the reservoir upon commencement of gas storage operations was 95.3 BCF. There is neither legal nor factual basis upon which the trial court’s judgment can be sustained. Since it does not appear that the cause should be remanded for further proceedings in the interest of justice or for other reason, the judgment of this court will be one of rendition. Hodges Tire Co. v. Kemp, 334 S.W.2d 627 (Tex.Civ.App.-Fort Worth 1960, no writ).

The judgment of the trial court is reversed and judgment is rendered that the maximum total gas remaining in the gas reservoir in question as of September 1, 1970, does not exceed 95.3 BCF and that Exxon is not required to account to the Wests for their royalty based on gas produced from the field in excess of that amount.