author: MASSEY, Chief Justice.

text:
    MOBILE HOMES OF AMERICA, INC., Appellant, v. EASY LIVING, INC., et al., Appellees.
    No. 17663.
    Court of Civil Appeals of Texas, Fort Worth.
    Sept. 19, 1975.

      Steves & Morgan, Paul C. Cook, Fort Worth, for appellant.
    MeBryde, Bogle & Green, and John H. McBryde, Fort Worth, for Easy Living, Inc., Enchanted Harbors, Inc., Metro Industries, Inc., Norman Walters Construction & Development Co., Inc., and Modular Enterprises, Inc.
    Shannon, Gracey, Ratliff & Miller, and Kleber C. Miller, Fort Worth, for appellee E. W. Bollinger.
    McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, and Sam J. Day, Fort Worth, for appellee Walter G. Cook.
   OPINION

MASSEY, Chief Justice.

This is a case which in the court below was brought by a purported corporation, Mobile Homes of America, Inc., against numerous defendants. Defendants, some time after date on which they had answered and joined issue upon the merits of plaintiff’s suit, filed a Rule 12 Motion, that is a sworn motion stating a belief the suit was instituted against them without authority on the part of those attorneys who had signed the pleadings for plaintiff, Mobile Homes, coupled with demand that these attorneys show sufficient authority from the plaintiff to institute or prosecute the suit filed. T.R. C.P. 12, “Attorney to Show Authority”.

Following the hearing set upon the Rule 12 Motion the trial court entered an order dismissing the suit. On the face thereof it was written that the court found that because the right to do business and charter of Mobile Homes of America, Inc. had been forfeited for failure to pay franchise taxes before date suit was brought it had no authority to sue in the courts of the State and, consequently, had no authority to hire attorneys for that purpose. Further, the court found that attorneys who initiated and are prosecuting the suit had no legal authority to do so. The order of the court dismissed the suit, including plaintiff’s cause of action alleged against the defendant who had not made himself a party to the Rule 12 Motion and had not questioned any attorney’s authority.

The purported corporation, Mobile Homes of America, Inc. perfected an appeal.

Interestingly, in the proceedings before this appellate court no defendant in the suit has attacked the propriety of those same plaintiff’s attorneys’ representation of Mobile Homes on appeal.

A consideration of Rule 12 in the instant case serves only to confuse. Purpose in mind by adoption thereof was to discourage and to cause the dismissal of suits brought without authority. It was intended to aid in protecting defendants from groundless suits. It was thought that a person who was sued was entitled to know that the named plaintiff had in fact authorized the suit. Angelina County v. McFarland, 374 S.W.2d 417 (Tex.Sup., 1964). See also 7 C.J.S. Attorney and Client § 76, “Evidence of Authority”, p. 886.

Use of a Rule 12 Motion, it seems to us, presupposes acceptance of the fact that there is an identifiable person who could be represented as a party plaintiff; that the movant is in position of acknowledging that such was the fact, but that the attorneys presenting themselves as its agents to file and prosecute the suit in fact had not been employed by it to do so. The briefs in this case make it plain that the question is upon the right of Mobile Homes to bring the suit, not upon the right of any particular attorneys to present themselves as attorneys for Mobile Homes.

From the record brought forward on appeal it is clear that though no such denominated pleading had been filed by defendants they were actually presenting a plea in abatement. Their evidence bore upon matters appropriate to such character of pleading, not upon absence of the fact of employment by a principal, the question appropriate to a Rule 12 Motion. Their evidence was directed upon proving want of Mobile Homes’ capacity and authority to bring the suit. By such evidence they discharged the burden of proof incumbent upon one who files such a plea. Furthermore, though no plea in abatement was presented in written form among papers filed in the case, that was what was tried and at no time was tender of defendants’- evidence met with any objection by Mobile Homes.

T.R.C.P. 67, “Amendments to Conform to Issues Tried Without Objection”, provides that when issues are on trial by express or implied consent of the parties they shall be treated as if they were raised by pleadings. By force of Rule 67 the parties tried a plea in abatement; by the judgment there is necessary implication that a plea in abatement was sustained (with dismissal of suit); and that propriety of such action by the court is the substance of that upon which the parties present and argue upon the appeal.

Evidence placed before the court was undisputed. Thereby it was shown that November 8, 1971 Mobile Homes’ right to do business as a corporation was forfeited by administrative action of the Comptroller of Public Accounts because of the failure of Mobile Homes to pay franchise tax. Authority therefor is found in V.A.T.S. Taxation — General, Ch. 12, “Franchise Tax”, Art. 12.14, “Failure to Pay Tax and File Reports”. Where the amount of franchise tax owing, plus penalties, be not paid in full on or before the thirtieth day after notice of delinquency is mailed to a corporation such corporation shall for such default forfeit its right to do business in the State of Texas; which forfeiture shall be consummated without judicial ascertainment by the Comptroller of Public Accounts.

Further provision of the aforesaid Art. 12.14, upon the forfeiture by the Comptroller of Public Accounts is: “Any corporation whose right to do business shall be thus forfeited shall be denied the right to sue or defend in any court of this State, except in a suit to forfeit the charter or certificate of authority of such corporation.” (Emphasis supplied.)

While not essential to the instant case notice should be taken of V.A.T.S. “Taxation — General”, Ch. 12, “Franchise Tax”, Art. 12.17, “Forfeiture of Charter and Bill of Review”. Therein is provision for action of the Secretary of State in administratively forfeiting the charter of a corporation whose right to do business has been forfeited by the Comptroller of Public Accounts because of failure to pay franchise tax, etc. On and after the first day of January following the year in which there has been such forfeiture of right to do business by the Comptroller, the Secretary of State, upon arriving at decision or conclusion that the corporation has no assets from which a judgment for franchise tax, penalties, and court costs may be satisfied, is authorized to administratively act in forfeiture of the charter of such corporation. Evidence of such is directed to be by certain entries upon records of (or relative to) the corporation as contained in the office of the Secretary of State, giving the date thereof and citing the Act as the authority therefor. Accomplishment provides record not only of the fact of forfeiture of the corporate charter but also of the fact that the Comptroller had acted and that there existed the necessary prerequisite of a forfeiture of the corporation’s right to do business pursuant to authority of the aforementioned Art. 12.14.

Such action by the Secretary of State in forfeiture of the charter of Mobile Homes was proved to have occurred on February 26, 1973, which date was approximately four months before the suit of Mobile Homes was filed.

On the matter of the state of the law relative to denial of the right of affirmative relief to a corporation which has had things “happen to it” like unto those applicable in the case of Mobile Homes, see 14 Tex.Jur.2d p. 674, “Corporations”, Sec. 581, “(B. Franchise Tax — Consequences of nonpayment — ) —Suspension of right to sue or defend”. Note also the solutions provided by law for restoration of such rights by revival of its right to do business. While there has been amendment of the laws relative to the situation since the case was decided, the theory behind the laws relative to franchise taxes owed by any corporation and the reasons for the state of the law still persist and are explained in a Supreme Court case of 1940. Ross Amigos Oil Co. v. State, 134 Tex. 626, 138 S.W.2d 798 (1940). In general it is this: corporate taxes must be paid; if not paid, the right to do business as a corporation is to be forfeited until they are paid, and when and while forfeited there shall be foreclosed any right of the corporation to use the courts of Texas.

Countering the foregoing Mobile Homes seeks avail of benefits to which it believes itself entitled by force of Texas Business Corporation Act, Art. 7.12, “Survival of Remedy after Dissolution”, and by force of Texas Miscellaneous Corporation Laws Act, Art. 1302 — 2.07, “Limited Survival after Dissolution”.

Both the foregoing cited Articles make provision for preservation of the right of a corporation to sue in Texas courts for a period of three years after its dissolution as such in specified instances. These are where the dissolution has occurred (1) by the issuance of a certificate of dissolution by the Secretary of State, (2) by a decree of court when the court has not liquidated the assets and business of the corporation as provided therein, or (3) by expiration of the period of its duration as a corporation.

But we are of the opinion, and hold, that neither of the Articles relied upon by Mobile Homes has any application to this case. In no respect do they relate to a corporation which is by the State deemed to be liable for an indebtedness owing for franchise tax, remaining unpaid. An example of an instance where a corporation which did not owe the State a franchise tax was permitted to prosecute suit in the corporate name after dissolution is Vouras v. 3525 Turtle Creek, Inc., 369 S.W.2d 819 (Dallas Tex.Civ.App., 1963, writ ref., n. r. e.). In that case there had been a plea in abatement presented and argued and overruled prior to trial on the merits; briefs in the case were exhaustive upon the right to maintain suit as by a corporation where no tax indebtedness is owing to the State.

There is no occasion for statutory construction in this instance for the two different sets of statutes relate to corporations in different circumstances. The law relied upon by Mobile Homes is without application in this case because its right to do business was forfeited by action of the Comptroller of Public Accounts for failure to pay franchise tax, and for that reason the statutes constituting basis for the contention of Mobile Homes are without application.

A further argument by Mobile Homes that it should be permitted to file suit in the corporate name is substantially this: 1. as found by the Secretary of State it has no assets from which there might be collection of franchise tax it owes the State, 2. that only by permitting suit to establish or gain assets from which there could have been collection of franchise tax owing had they not merely constituted choses of action but rather accomplished collections, etc., could payment of the franchise tax debt have been made, and 3. that in such circumstances the law should permit such a financially distressed corporation to sue and recover upon such choses of action that the public policy might be accomplished, to-wit: the acquisition of funds by use of which the franchise tax might then be paid.

We must concede the ingenious nature of the contention and theory but reject it as beneficial to plaintiff. If Mobile Homes has not the “wherewithal” to have restored its corporate existence and right to do business upon payment to the State of the franchise tax and penalties owing, or cannot prevail upon some other to supply such in its behalf, its disqualification to sue in Texas courts must persist. As a corporation it will continue to lack the necessary qualifications to prosecute any suit.

Judgment is affirmed.


source: Caselaw Access Project

author: WALTER, Justice.

license: Public Domain

text:
    W. A. STEED, INC. d/b/a Eagle Construction Company, et al., Appellants, v. TEXAS POWER AND LIGHT COMPANY, Appellee.
    No. 4814.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 3, 1975.
    Rehearing Denied Oct. 17, 1975.
    Toy Crocker, Crocker & McDonald, Fort Worth, for appellants.
    Robert F. Begert, Burford, Ryburn & Ford, Dallas, for appellee.
   WALTER, Justice.

Texas Power and Light Company recovered a judgment against W. A. Steed on a written contract and Steed has appealed.

Issue Number 1 and the jury’s answer is as follows:
“SPECIAL ISSUE NO. 1
Do you find from a preponderance of the.evidence that on or about March 27, 1973 Texas Power and Light Company had substantially complied, as defined herein, with all work requirements contained in the agreement in question (Plaintiff’s Exhibit No. 1)?
Answer ‘Yes’ or ‘No’.
ANSWER: No
In your consideration of the foregoing issue you are instructed that ‘substantial compliance’ means the performance of the requirements in an agreement in material and substantial particulars with no willful departure from the terms or requirements of such agreement and no omission of essential points of such agreement.”

The jury also found that Steed sustained a financial loss of $4,000 as a result of the Power Company’s failure. The Power Company’s motion to disregard the finding to special issue number 1 was granted. Judgment was rendered that the Power Company recover $22,176, the amount provided for in the contract, and allowed Steed a $4,000 offset.

Steed contends there was evidence to support the jury’s answer to special issue number 1. We agree.

The court was authorized to disregard the jury’s answer to issue number 1 if it had no support in the evidence. Rule 301, T.R.C.P. We must consider the testimony, “. . . in a light most favorable to the party against whom the motion is sought and every reasonable intendment deducible from the evidence is to be indulged in such party’s favor. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194.” Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962).

The Power Company’s Mr. Parsons testified that all of the work covered by the contract had been completed. However, he stated he had received a letter from Mr. Steed in part stating:

“. . . the owner informs me that the transformers are not installed.”

Parsons admitted transformers to all two hundred and eighty lots provided for in the contract had not been installed. He didn’t know how many transformers were installed. We conclude this testimony constitutes some evidence in support of the jury’s answer to issue number one.

The Power Company has a cross point asserting the negative answer to issue number 1 is contrary to the weight and preponderance of the evidence. We have considered the entire record and find such answer is against the weight and preponderance of the evidence. In Re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The judgment is reversed and the cause is remanded.

McCLOUD, C. J., not participating.


author: HALL, Justice.

text:
    BRUCE CAMPBELL AND SON CONSTRUCTION CO., INC., and Transamerica Insurance Company, Appellants, v. BRITTON DRIVE, INC., a corporation, aka Britain Drive, Inc., Appellee.
    No. 5472.
    Court of Appeals of Texas, Waco.
    Sept. 18, 1975.
    Rehearing Denied Oct. 9, 1975.

      Pakis & Cherry, Inc., Waco, for appellants.
    Culton, Morgan, Britain & White, Sam R. Cummings, Don L. Patterson, Amarillo, for appellee.
   HALL, Justice.

Britton Drive, Inc., (hereinafter “Brit-ton”), brought this suit in Potter County against Bruce Campbell And Son Construction Co., Inc., (“Campbell”), and Transamer-ica Insurance Company (“Transamerica”), pleading that Campbell agreed in writing to construct an apartment complex in Amarillo, Texas, for Britton, and “to repair and make good” free of cost to Britton any defect or fault in construction discovered within one year after completion of the work; that Transamerica is the surety on Campbell’s performance bond; and that Campbell has failed and refused to repair defects in construction in breach of the contract. Britton alleged that it has suffered damages totaling $245,380 as a result of the breach, and it sought recovery of this sum against the defendants, jointly and severally.

Campbell filed a plea of privilege to be sued in Bell County, the county of its residence. Similarly, Transamerica sought to have the case against it transferred to Dallas County. Britton controverted the defendants’ pleas, contending that under the terms of Subdivisions 5 and 29a of Article 1995, Vernon’s Tex.Civ.St., the suits were maintainable in Potter County. Following a trial without a jury, the court overruled the pleas of privilege. We affirm.

Insofar as relevant, Subd. 5 of the venue statute provides that if a defendant has contracted in writing to perform an obligation in a particular county, expressly naming the county or a definite place therein in the writing, then suit upon that obligation may be brought against the defendant in that county. Subdivision 29a provides that if an action is properly brought in the county of suit under any provision of Article 1995 as to any defendant in a multiple-defendant suit, then venue is proper there as to all who are necessary parties thereto.

By appropriate points of error, Campbell and Transamerica question the legal and factual sufficiency of the evidence to support the implied findings of venue facts necessary to sustain the court’s order.

The construction contract and the performance bond are in evidence. The contract provided that Campbell would construct a 208-unit apartment complex for Britton and correct or repair free of cost to Britton any construction defect discovered within one year after completion. The performance bond incorporates the construction contract by reference, and obligates Transamerica to promptly remedy any default by Campbell and complete the contract.

Campbell and Transamerica separately assert that Subd. 5 has no application because neither the contract nor the performance bond expressly names Potter County or a definite place therein as the place of performance.

There are a number of references in the contract and one in the bond to the fact that the apartment complex was to be constructed in the City of Amarillo. In Texas, courts judicially notice, at least in civil cases, that a city is located entirely within a particular county. This judicial knowledge has enabled plaintiffs to maintain venue under provisions of Article 1995 without additional proof that a designated city was located within the county of suit. Harper v. Killion, 162 Tex. 481, 348 S.W.2d 521, 523 (1961); Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 829 (1950). But the Texas courts judicially know, also, that the City of Amarillo lies in both Randall and Potter Counties. Thus, cases in which a named city was judicially known or assumed to be located entirely in the county of suit are not applicable, here. Southwestern Investment Company v. Shipley (Tex.Sup., 1966) 400 S.W.2d 304, 307.

Article 2 of the contract in question contains this provision:

“THE WORK. The contractor shall perform all the work required by the Contract Documents for the construction of 208 apartment units, a community building, and swimming pool. Gross veneer square footage of the project is 189,-686 square feet, located on approximately 385,522 square feet or 8.850 acres on Virginia Circle and Britain Drive, as per survey made by Joyce Parks, of Hatfield Engineering Company, 509 West 10th Avenue, Amarillo, Texas, who is a registered public surveyor, dated January 10, 1973.”

Joyce Parks testified that he is a registered public surveyor with Hatfield Engineering Company, 509 West 10th Avenue, Amarillo, Texas. He said that he surveyed the acreage described in Article 2 of the contract as being on Virginia Circle and Britain Drive, and signed the field notes resulting from the survey on January 10, 1973. He identified the field notes. They enclose “[a] tract of land out of Section 227, Block 2, A.B.&M. Survey, Amarillo, Potter County, Texas . . . containing 385,-522 sq. ft. in area (8.850 acres).” Additionally, Mr. Parks testified that the tract is located within Potter County. This testimony is not disputed.

The defendants assert here, as they did in the trial court by objection, that Parks’s testimony was not admissible to show that the tract described in the contract is located in Potter County. We disagree.

It is the established rule that where a contract names or identifies a definite place for performance, extraneous proof is proper to establish the county in which the place is located. For example, in Cities Service Oil Co. v. Brown, 119 Tex. 242, 27 S.W.2d 115 (1930), the defendant signed an invoice payable “at the principal office of the company” at the time he received delivery of merchandise from the plaintiff Company. The court said, “This contract on its face furnished the means by which the agreed place of payment could be determined. Extraneous proof to identify the same did not tend to vary, modify, or enlarge the terms of such contract, but only served to identify the particular place where the parties agreed payment should be made.” Other cases in which this principle has been applied, and in which places named in contracts for performance were held to be “definite places” within the meaning of the venue statute in question, are: Garcia v. Coastal Bend Production Credit Ass’n (Tex.Civ.App.—Corpus Christi, 1968, no writ hist.) 430 S.W.2d 385, 386 (note payable “in the city of Texas in which said Association’s principal office is located”); Lebow v. Weiner (Tex.Civ.App.— Hou.14th, 1967, no writ hist.) 420 S.W.2d 755, 759 (deed to be delivered at “listing realtor’s office”); Piper, Stiles & Ladd v. Fidelity & Deposit Co. of Md. (Tex.Civ.App.—Hou.1st, 1966, writ dism.) 408 S.W.2d 800, 801 (premiums payable at “Houston Branch Office”); Tyson v. Seaport Grain, Inc. (Tex. Civ.App.—Corpus Christi, 1965, writ dism.) 388 S.W.2d 731, 735 (materials to be delivered “F.O.B. site [of construction]”); Smith v. Crockett Production Credit Ass’n (Tex.Civ.App. — Hou.1st, 1963, no writ hist.) 372 S.W.2d 954, 955 (note payable “in the city in Texas in which said Association’s principal office is located”); Butler, Williams & Jones v. Goodrich (Tex.Civ.App.—Galveston, 1956, writ dism.) 288 S.W.2d 887, 890 (repairs to be made to “your residence below Navasota, Texas”); and Harrison v. Nueces Royalty Co. (Tex.Civ.App.—San Antonio, 1942, writ dism.) 163 S.W.2d 244, 245 (note payable “at the office of Nueces Royalty Company”).

Article 2 of the contract required Campbell to build the apartments on “8.850 acres” located on “Virginia Circle and Britain Drive” according to a survey made by a public surveyor named Joyce Parks on a specified day. This designates a definite place for the construction, and Parks’s testimony was admissible to show that the place is located in Potter County. Any construction defects are necessarily repairable there. This evidence is legally and factually sufficient to support the implied findings that the construction contract, and the performance bond which obligated Transameri-ca to remedy the construction defects if Campbell defaulted, were both performable by their terms in Potter County. Accordingly, venue in this suit as to both defendants is proper in Potter County under the terms of Subd. 5. Questions raised dealing with Subd. 29a are therefore immaterial.

The judgment is affirmed.


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

text:
    Buddy AMBERS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 49568.
    Court of Criminal Appeals of Texas.
    Sept. 17, 1975.

      James P. Finstrom, Court appointed, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Hugh Lucas, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a rape conviction, where the punishment was assessed at ninety-nine (99) years by the jury.

In his sole contention appellant contends the trial court erred at the penalty stage of the trial when it failed to charge the jury that the range of punishment governing the instant offense was that of a second degree felony under the new Penal Code (effective January 1,1974), despite his timely presented written motion for election of punishment.

The appellant was indicted on July 16, 1973, with the one count indictment alleging that on or about July 5,1973, the appellant “did unlawfully in and . upon F_J._M_, a woman, then and there by force, threats and fraud, and without the consent of the said complainant, ravish and have carnal knowledge of the said complainant.”

The indictment was obviously drafted under Article 1183, Vernon’s Ann.P.C. 1925. The penalty for such offense is set forth in Article 1189, Vernon’s Ann.P.C. 1925, which provides that “a person guilty of rape shall be punished by death or by confinement in the penitentiary for life, or for any term of years not less than five.” (Emphasis Supplied) As to the death penalty provision, see Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Appellant’s trial commenced on February 18, 1974, after the effective date of the new Penal Code.

At the trial the prosecutrix testified that on July 5, 1973, when she returned to her apartment from work she discovered a television set and a stereo set were missing and entry had been made through a back kitchen door. While she was trying to figure out how to lock or bolt the broken door, the appellant entered the apartment through the door holding a three inch knife in his hand. The prosecutrix screamed, and appellant approached with the knife and said, “. . . don’t scream or I will kill you.” He marched her to the bedroom, forced her to disrobe, and proceeded to have sexual intercourse with her without her consent, once striking her in her side with his hand. Before leaving, he forced her to commit an act of sodomy upon him.

The appellant did not testify or offer any evidence.

At the guilt stage of the trial the jury found the appellant guilty of “rape as charged in the indictment.”

At this point appellant filed a motion electing to be punished under the new Penal Code and requesting that the range of punishment submitted to the jury be limited to that provided by Y.T.C.A., Penal Code, Sec. 21.02 (Rape — a felony of the second degree) under which the punishment would be limited to a term of not more than twenty (20) years or less than two (2) years and a possible fine not to exceed $10,000. See V.T.C.A., Penal Code, Sec. 12.33 (Second Degree Felony Punishment).

The request to so limit the range of punishment was denied. Appellant then filed a “Second Motion of Punishment Election” requesting that, in view of the earlier denial that punishment be assessed under Y.T. C.A., Penal Code, Sec. 12.33, that punishment be limited to life, or any term of not more than ninety-nine (99) years or less than five (5) years. See V.T.C.A., Penal Code, Sec. 12.32 (First Degree Felony Punishment). This motion was granted by the court. The jury was so instructed in the court’s charge on such punishment, which is the punishment applicable to aggravated rape (V.T.C.A., Penal Code, Sec. 21.03).

It is appellant’s argument on appeal that the court erred in not limiting the punishment to that of a second degree felony. He contends that the proof actually showed the offense of rape under the new Code rather than that of aggravated rape. We dealt with a similar contention in Wright v. State, 527 S.W.2d 859 (No. 49,576, this day decided) in which we also discussed the applicability of the “Saving Provisions” of the new Penal Code to cases where the accused is indicted for an old Code offense and is tried after the effective date of the new Code and elects by virtue of Section 6(c) of the Saving Provisions to be punished under the new Penal Code. We need not repeat that discussion here.

In the instant case appellant does not argue that Section 6(c) of the Saving Provisions is not applicable but urges the court erred in not limiting the range of punishment to that of a second degree felony since he argues the proof offered showed the offense of rape under V.T.C.A., Penal Code, Section 21.02 rather than aggravated rape, V.T.C.A., Penal Code, Section 21.03.

V.T.C.A., Penal Code, Sec. 21.02 (Rape), provides as follows:

“(a) A person commits an offense if he has sexual intercourse with a .female not his wife without the female’s consent.
“(b) The intercourse is without the female’s consent under one or more of the following circumstances:
“(1) he compels her to submit or participate by force that overcomes such earnest resistance as might reasonably be expected under the circumstances;
“(2) he compels her to submit or participate by any threat that would prevent resistance by a woman of ordinary resolution;
“(3) she has not consented and he knows she is unconscious or physically unable to resist;
“(4) he knows that as a result of mental disease or defect she is at the . time of the intercourse incapable either of appraising the nature of the act or of resisting it;
“(5) she has not consented and he knows that she is unaware that sexual intercourse is occurring;
“(6) he knows that she submits or participates because she erroneously believes that he is her husband; or
“(7) he has intentionally impaired her power to appraise or control her conduct by administering any substance without her knowledge.
“(c) An offense under this section is a felony of the second degree.”

V.T.C.A., Penal Code, Sec. 21.03 (Aggravated Rape), provides as follows:

“(a) A person commits an offense if he commits rape as defined in Section 21.02 of this code or rape of a child as defined in Section 21.09 of this code and he:
“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.
“(b) An offense under this section is a felony of the first degree.”

At the hearing on punishment the State offered evidence as to appellant’s prior convictions, but no further evidence as to the offense. As noted earlier, the jury was given as the range of punishment that applicable to aggravated rape (V.T.C.A., Penal Code, Sec. 21.03), without mention of the new Penal Code provisions. This was in accord with appellant’s “Second Motion of Punishment Election.” The charge was not drafted so as to require the finding of any additional elements of aggravated rape. There were no objections to the charge nor written requested charges. Under the circumstances of this particular case, given appellant’s own motion and the undisputed facts offered at the guilt stage of the trial that appellant at knifepoint threatened to kill the prosecutrix and with the knife marched her to the bedroom, where the offense occurred, with the prosecutrix testifying she was in fear of death and serious bodily injury, we cannot conclude that the court reversibly erred in submitted to the jury the range of punishment applicable to a felony of the first degree (aggravated rape).

The judgment is affirmed.

ROBERTS, J., concurs.

DOUGLAS, Judge

(concurring).

The indictment alleged an offense under the former code. There was sufficient notice in that indictment.

The Legislature adopted the present code and made changes in the punishment and the definition of the offense. Appellant had notice of these changes. With this notice he elected to have the punishment assessed under the subsequent code. He was not forced to elect. He was not deprived of any right but was given a new one under which he chose to proceed.

In Jones v. State, 502 S.W.2d 771 (Tex.Cr.App.1973), the conviction was for the possession of less than four ounces of marihuana. At the time of indictment the offense was a felony. At the time of the trial the punishment was classified as a misdemean- or for that amount of marihuana. Jones elected to be tried under the newer act. He complained that he had to give up his right to have the jury assess the punishment when he chose to proceed under the subsequent statute. This Court held that he waived that right by his election.

In the present case, appellant knew what the indictment charged and the penalties under each statute. He made his election.

The Legislature did not intend that he have a right to elect not to be punished for rape.

ODOM, Judge

(dissenting).

Appellant was indicted for rape under the old Penal Code. The jury found him guilty of “rape as charged in the indictment.” The indictment charged that appellant:

“did unlawfully, in and upon F_J_M_, a woman, then and there by force, threats, and fraud, and without the consent of the said Complainant, ravish and have carnal knowledge of the said Complainant.”

Appellant contends, as stated by the majority, that the trial court erred in refusing his election to be punished under the new Penal Code provision for second degree felony rape under Section 21.02, V.T.C.A. Penal Code.

The jury’s finding of guilt would support assessment of punishment under Sec. 21.02, supra, for rape, because the jury, in returning a verdict of guilty as charged in the indictment, found facts sufficient to support a conviction under that Section. Rape, under Sec. 21.02, supra, is a second degree felony and appellant Ambers was entitled to the submission of that range of punishment to the jury. (See parts XI, paragraph 1; XIII; XVI, of my opinion concurring in part and dissenting in part in Wright v. State, 527 S.W.2d 859, this day decided.)

Instead the punishment range under Section 21.03, V.T.C.A. Penal Code, for first degree felony was submitted. That Section defines aggravated rape and affixes a punishment thereto. It requires for conviction thereunder that in addition to showing commission of rape under Sec. 21.02, supra, it must be alleged and proved beyond a reasonable doubt that the accused in commission of the offense:

“(1) causes serious bodily injury or attempts to cause death to the victim or another in the course of the same criminal episode; or
“(2) compels submission to the rape by threat of death, serious bodily injury, or kidnapping to be imminently inflicted on anyone.” Sec. 21.03, supra.

It is obvious that no allegation of any such aggravating circumstances was made in the indictment. (See parts IX, XIII, of my opinion in Wright, supra.) The verdict of “guilty as charged in the indictment” therefore does not constitute a finding that such circumstances were proven, and none of the additional fact issues under Sec. 21.03, supra, were even submitted to the jury. (See parts XIII, XIV, in my opinion in Wright, supra.) Appellant was neither charged with nor convicted of the commission of acts constituting an offense under Sec. 21.-03, supra, and that Section affixes no punishment to the offense for which appellant was charged and convicted. Punishment was assessed at ninety-nine years, outside the range that should have been charged.

For violation of appellant’s. right to demand pleading and proof beyond a reasonable doubt, and for deviations from the required procedure denying him a fair trial, the judgment should be reversed and the cause remanded.

      . The author of the majority opinion, speaking for the Court in Day v. State, - S.W.2d - (1975), wrote:
      “. . . the dissent . . . infers that if the proof reflects some offense other than charged in the indictment, then no jury instruction on the lesser included offense of the offense charged needs to be given regardless of the evidence raising the same. This is strange logic indeed.”
      Even stranger logic is that employed by the majority in this case, which holds that if the evidence reflects some offense other than that charged in the indictment, of which charged offense the defendant has been convicted, it is permissible for the trial court to charge the range of punishment for the other offense shown in the evidence and ignore the range of punishment affixed by law to the offense described by the facts charged and found by the jury to be true.