text:
    Cass WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 54730.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 21, 1978.
    Tom Crum, Waxahachie, for appellant.
    Gene Knize, County Atty., Waxahachie, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for the offense of attempted murder. V.T. C.A., Penal Code, Sections 15.01(a) and 19.-02(a)(1). Punishment was assessed at seven years, probated.

It was established at trial that on April 16,1976, at 10:30 p. m., the appellant, Tommy Busby, C. J. Powell, Willie Lester, Clarence Cook, and Eloise Williams were visiting at Jimmy Freeman’s residence on Preston Street. Eloise Williams, the appellant’s sister-in-law, testified that they were talking and drinking coffee. During the conversation, Tommy Busby went to the restroom. Witness Williams then asked Clarence Cook, whose nickname was “Baby Jay,” to go to the kitchen and get her another cup of coffee. Cook took her coffee cup and started walking towards the kitchen. The appellant stood up and pulled a gun out of his pocket. Williams said, “Run, Baby Jay. He is going to shoot you.” Cook ran toward the back door, Busby stepped out of the restroom, and the appellant fired, striking Busby. Busby fell to the floor. The appellant stepped over Busby and went out the back door following Cook.

Williams’ testimony was corroborated by Willie Lester, Jerry Freeman, Clarence Cook, and Tommy Busby. All of these witnesses testified that there had been no drinking of alcoholic beverages nor any arguments or fights prior to the shooting.

Jerry Young testified that he arrived at Freeman’s residence at approximately 10:10 p. m. Young saw Earle Rowden and they both went outside to the backyard. At approximately 10:30 they heard a shot in the house and saw Clarence Cook run out the back door and around the side of the house. Young and Rowden started towards the door. The appellant came out of the back door and fired two shots. After each shot was fired, Rowden stated, “Cass, you shot me, man.” Young ran for cover and crouched behind a parked car. Young then told appellant who he was and the appellant fired one shot at him. The appellant ran down Preston Street towards Clay Street.

Claude Freeman testified that on April 16, 1976, at approximately 11:00 p. m., the •appellant came to his house on Clay Street and asked Freeman to keep a gun for the appellant without telling anyone. When Freeman refused, the appellant left. Freeman stated that on June 14 he had called a serviceman to repair his washing machine, which was out on his back porch. The serviceman found a gun under the washing machine.

The appellant testified in his own behalf that he had purchased a gun similar to that introduced into evidence over one year before. At that time, the gun had six cartridges in it and six extra cartridges. On April 16, he spoke to several young men who told appellant where he could buy some more cartridges for his gun. The appellant stated he intended to buy more cartridges in order to shoot snakes when he went fishing. The appellant carried the gun with him in order to match the cartridges because he did not know if the gen was a .22 or .25 caliber.

The appellant testified that he had “quite a bit” to drink before going to Freeman’s house. He continued to drink whiskey and beer after his arrival. The appellant related he did not recall ever taking the gun out of his pocket nor firing the gun. He stated, “I just got on one of those running sprees and had too much to drink. I don’t know what happened.” The appellant explained that he would not have intentionally shot at Busby or Rowden had he been aware of what was happening and stated he considered Rowden his closest friend. He did not learn of the shootings until he voluntarily went to the police station.

In rebuttal, Officer Andrew Mendoza testified that he saw the appellant at the police station between 11:00 and 11:30 p. m. In Officer Mendoza’s opinion, the appellant was not intoxicated at that time. Mendoza stated, in his earlier investigation of the shooting that evening, he had not seen any alcoholic beverages in Freeman’s house and none of the witnesses he spoke with appeared intoxicated.

In his Grounds of Error 1, 2, and 5, the appellant contends that the evidence was insufficient to show the appellant knowingly or intentionally attempted to kill Tommy Busby and the trial court erred in charging the jury on the law of transferred intent. The appellant points out that the doctrine of transferred intent and the doctrine of felony murder were found in Articles 42 through 44, V.A.P.C. (1925). Those articles of our former penal code are now codified in V.T.C.A., Penal Code, § 6.04. The appellant also points out that Article 1256, V.A.P.C. (1925), our former murder statute, is now codified in V.T.C.A., Penal Code, § 19.02. The appellant contends that since § 19.02 now sets forth three separate and distinct situations in which the offense of murder can be committed, such codification altered the application of the transferred intent doctrine and the felony murder doctrine. Specifically, appellant argues that § 19.02(a)(2) and (3) contain the law applicable to a situation involving either the transferred intent or felony murder doctrine. The appellant concludes that since the State elected to indict appellant under V.T.C.A., Penal Code, § 19.02(a)(1), it cannot avail itself of the felony murder or transferred intent doctrines in order to obtain a conviction. Therefore, the appellant asserts that since § 6.04 does not apply to 19.02(a)(1), the evidence was insufficient to show intent. We find appellant’s contention without merit. Section 6.04 provides:

“(a) A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.
(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or
(2) a different person or property was injured, harmed, or otherwise affected.” (Emphasis added)

We note that transferred intent, now codified in § 6.04(b)(2), was traditionally applied to our murder statute under our former penal code, Article 1256, supra. See Hayes v. State, 171 Tex.Cr.R. 646, 353 S.W.2d 25; Richard v. State, Tex.Cr.App., 426 S.W.2d 951; Sargent v. State, Tex.Cr.App., 518 S.W.2d 807. We reject appellant’s contention that, by providing three separate situations in which murder is committed under § 19.02(a)(1), (2), and (3) the Legislature intended that § 6.04 would only apply to 19.02(a)(2) and (3) and would not apply to 19.02(a)(1). Contrary to appellant’s contention, it clearly appears that the Legislature intended Title 2, § 6.04 to apply to 19.-02(a)(1). See V.T.C.A., Penal Code, § 1.02; Article 5429b-2, V.A.C.S.; Blansett v. State, Tex.Cr.App., 556 S.W.2d 322; Martinez v. State, Tex.Cr.App., 533 S.W.2d 20; Dockery v. State, Tex.Cr.App., 542 S.W.2d 644; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844. We conclude that the trial court did not err in charging the jury on the law under V.T.C.A., Penal Code, § 6.04(b)(2) and overrule appellant’s fifth ground of error.

Accordingly, we must now determine if the evidence is sufficient to show the appellant intentionally or knowingly attempted to cause the death of Tommy Busby in light of the application of 6.04(b)(2). When determining the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the jury verdict. Murray v. State, Tex.Cr.App., 505 S.W.2d 589.

In the instant case, Eloise Williams testified that the appellant fired a pistol at Clarence Cook, striking Tommy Busby. A pistol is a deadly weapon per se, and when used by a defendant an intent to kill is presumed. Jackson v. State, Tex.Cr. App., 548 S.W.2d 685; Fentis v. State, Tex. Cr.App., 528 S.W.2d 590; Thompson v. State, Tex.Cr.App., 521 S.W.2d 621. This presumption coupled with the testimony of Williams and the application of § 6.04(b)(2) clearly supports the jury verdict. Valore v. State, Tex.Cr.App., 545 S.W.2d 477; see also Johnigan v. State, Tex.Cr.App., 502 S.W.2d 136. We conclude the evidence is sufficient to support the conviction and overrule appellant’s first two contentions.

In his third ground of error, the appellant contends that the trial court erred in failing to charge the jury on circumstantial evidence since there was no direct evidence of appellant’s intent. In the instant case, it was established that the appellant fired a pistol, striking Tommy Busby. The appellant testified that he would not have intentionally killed Busby had he been aware of what happened. Thus, only the question of .intent was left to be inferred from the circumstances. It is well established that an instruction as to circumstantial evidence is not required where the main fact is proved by direct testimony and only the question of the defendant’s intent is to be inferred from the circumstances. Littleton v. State, Tex.Cr.App:, 419 S.W.2d 355; Helms v. State, Tex.Cr.App., 493 S.W.2d 227; Chappell v. State, Tex.Cr.App., 519 S.W.2d 453; Ross v. State, Tex.Cr.App., 504 S.W.2d 862. Appellant’s contention is overruled.

In his fourth ground of error, the appellant contends that the trial court erred in charging the jury on intoxication at the guilt and innocence phase of the trial. The appellant argues that an instruction as to the intoxication of a defendant is only proper at the punishment phase of the trial and that giving such charge to the jury at the guilt and innocence stage is reversible error. We find appellant’s contention without merit. The charge given properly instructed the jury as to the law in accordance with V.T.C.A., Penal Code, § 8.04. No reversible error is shown. McElroy v. State, Tex.Cr.App., 528 S.W.2d 831; see also Ramos v. State, 141 Tex.Cr.R. 126, 147 S.W.2d 809; Kincheloe v. State, 146 Tex. Cr.R. 414, 175 S.W.2d 593. Appellant’s contention is overruled.

The judgment is affirmed.

      . V.T.C.A., Penal Code, § 19.02 provides:
      “(a) A person commits an offense if he:
      (1) intentionally or knowingly causes the death of an individual;

        (2) intends to cause serious bodily injury and commits an act clearly dangerous to hu- ' man life that causes the death of an individual; or
      •(3) commits or attempts to commit a felony, other than voluntary or involuntary manslaughter, and in the course of and in further-anee of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
      (b) An offense under this section is a felony of the first degree.”


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    James Frank SHANNON, III, Appellant, v. The STATE of Texas, Appellee.
    No. 54806.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 21, 1978.
    Appellant’s Motion for Rehearing En Banc Denied July 19, 1978.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, J. R. Molina and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J„ and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for murder; the punishment is imprisonment for fifty years.

Appellant contends that there is insufficient corroboration of the testimony of the accomplice witness and therefore there is not sufficient evidence to sustain the conviction. He also contends that the State failed to establish the corpus delicti of the crime of murder and was erroneously permitted to introduce inflammatory photographs and evidence of an extraneous offense. Finally, he contends that evidence of the bad reputation of the accomplice witness was erroneously excluded.

Robert Evans testified that at about 9:30 a. m. on February 15,1976, he went to 2203 Burney Road in Arlington after receiving a telephoned invitation from appellant. After Evans arrived at the house, he and appellant began smoking marihuana and drinking beer. At 10:30 a. m., Herschel Stevens drove up and parked in front of the garage. Appellant walked outside, pulled a pistol from his belt, and shot Stevens in the chest. Stevens turned and ran up the driveway toward the road, and appellant fired two more shots at him. Stevens fell as he reached the road and at that moment Evans saw a white van drive past the driveway. Evans and appellant were carrying Stevens’ body back to his car when another car drove into the driveway; they laid the body beside Stevens’ car, and appellant went over to talk to the driver. After this car left, Evans and appellant placed the body in the trunk of Stevens’ car. Then, as Evans followed in his truck, appellant drove Stevens’ car to a gravel pit near Lewisville. Appellant poured gasoline over the car and Stevens’ body and set them on fire. Evans and appellant then left in Evans’ truck. Evans identified a photograph as being a picture of Herschel Stevens.

Randy Allen testified that on February 15, 1976, at 10:30 a. m., he was driving his white van west on Burney Road on his way to a gas station. As he approached a house on the right side of the road, he saw three white men standing in the driveway. As Allen watched, one of the men started running toward the road holding out his hand. The man reached the road as Allen came even with the driveway, and Allen could see that the man, who had long red hair, was covered with blood. As Allen passed by, the man fell beside the mailbox. Before he lost sight of the scene, Allen saw the other two men approach the fallen man. After he completed his business at the gas station, Allen returned to the scene. The three men were gone, but there was blood beside the mailbox. Soon thereafter, Allen called the police. At the trial, Allen identified a photograph of the house at 2203 Burney Road as the house where he observed the three men. He also identified the photograph of Herschel Stevens as the man he saw fall.

Robert Moore testified that on the morning of February 15, 1976, he was in the front yard of his house at 2220 Burney Road. At 10:30 a. m., he heard three gunshots, and heard one of the bullets pass near him. Believing the shots came from a house two hundred yards east of his on Burney Road, Moore immediately drove to the house. He identified a photograph of the house at 2203 Burney Road as the house to which he drove. Moore drove into the driveway and stopped by the gate. He saw a car parked in front of the garage and two men walking around. One of the men, whom Moore identified as the appellant, walked up to Moore’s car and, in answer to Moore’s question, denied having fired any shots. As Moore and appellant were talking, Moore saw a body lying beside the parked car and covered with blood. With that, Moore quickly disengaged himself from the conversation with appellant and drove away. As he watched in his rear view mirror, appellant and the other man picked up the body. Moore called the sheriff when he reached his house.

Edward Yauger, a Tarrant County deputy sheriff, testified that he and an Arlington police officer were the first officers to arrive at 2203 Burney Road. In the course of their investigation of the premises, they found several spots of blood, including a large amount of blood by the mailbox. Inside the house, the officers found .38 caliber shells and open beer cans, and smelled the odor of marihuana.

Dan Cobb, a Lewisville police officer, testified that he was called to a gravel pit at approximately 12:15 p. m. on February 15, 1976. Already present was a unit of the fire department which had just extinguished a fire that burned a car. Cobb discovered a severely burned body in the trunk of the car. A watch found on the body had stopped at 11:58.

Dr. Glen Norman, a Fort Worth dentist, testified that he had a patient named Herschel Stevens. He supplied Stevens’ dental records to the Dallas County medical examiner.

Dr. John Graham, assistant medical examiner for Dallas County, testified that the body found in the trunk of the burning automobile was identified by the use of Dr. Norman’s dental records as Herschel Stevens. The autopsy performed on the body revealed that Stevens died as a result of a gunshot through the heart. There was no evidence of smoke inhalation. Although the body was badly charred, red pubic hairs were visible.

The trial court correctly instructed the jury that Evans was an accomplice witness as a matter of law. A conviction cannot be had upon the testimony of an accomplice unless that testimony is corroborated by other evidence tending to connect the defendant with the offense committed, and the corroboration is not sufficient if it merely shows the commission of the offense. Art. 38.14, V.A.C.C.P. The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness, and then to examine the evidence of the other witnesses to ascertain if it is of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Brown v. State, 561 S.W.2d 484 (Tex.Cr.App.1978); Caraway v. State, 550 S.W.2d 699 (Tex.Cr.App.1977); Etheredge v. State, 542 S.W.2d 148 (Tex.Cr.App.1976); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1972). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt. Lyman v. State, 540 S.W.2d 711 (Tex.Cr.App.1976); Bentley v. State, 520 S.W.2d 390 (Tex.Cr.App.1975); Black v. State, 513 S.W.2d 569 (Tex.Cr.App.1974); Cherb V. State, 472 S.W.2d 273 (Tex.Cr.App.1971). The corroboration need only make the accomplice’s testimony more likely than not. James v. State, 538 S.W.2d 414 (Tex.Cr.App.1976); Bentley v. State, supra; Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

Appellant argues that the evidence is insufficient since there is no direct evidence, other than the testimony of the accomplice witness, that appellant fired any gunshots or that the body seen by Allen and Moore at the house on Burney Road was the same body found in the trunk of the burning car. However, it is not necessary that the accomplice be corroborated on all his testimony. Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968); White v. State, 129 Tex.Cr.R. 59, 84 S.W.2d 465 (Tex.Cr.App.1935). Proof that the accused was at or near the scene of the crime at or about the time of its commission is admissible in corroboration of the testimony of the accomplice, and may tend to connect the accused with the commission of the crime, so as to provide sufficient corroboration to support a conviction, when coupled with suspicious circumstances. Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340 (1957); Edwards v. State, supra.

The testimony of Allen and Moore establishes that appellant was present at an address from which gunshots were heard and a red-haired man, covered with blood, was running. While standing near the body of this man, appellant denied any knowledge of the gunshots. He was then seen picking up the body. The body of a red-haired man, identified as Herschel Stevens, was subsequently discovered in the trunk of a burning car, dead from a gunshot wound. We hold that the testimony of the State’s witnesses, excluding that of the accomplice Evans, is of incriminating character which tends to connect appellant with the commission of the charged offense. It is, therefore, sufficient corroboration of Evans’ testimony.

Appellant contends that the State failed to prove the identity of the deceased or the cause of death. Therefore, appellant argues, the State failed to establish the corpus delicti of the crime of murder. We disagree.

It has been held that there are two elements of corpus delicti in a murder case: (1) the body of the deceased must be found and identified; and (2) the death of the deceased must be shown to have been caused by the criminal act of another. The third element which must be shown to sustain a murder conviction, but which is not properly a part of the corpus delicti, is that the accused must be shown to have been the guilty agent connected with the criminal act. Easley v. State, 564 S.W.2d 742 (Tex.Cr.App.1978); Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974). As in Easley, we need not discuss the effect, if any, the new Penal Code has on the first element of corpus delicti, because the body of Herschel Stevens was found and identified.

Stevens’ body was found, severely burned, in the locked trunk of an automobile found burning in a gravel pit. An autopsy revealed that the cause of death was a gunshot through the heart. There was no evidence of smoke inhalation. This evidence indicates that Stevens’ death was due to criminal means. We hold that the circumstantial evidence presented by the State is sufficient to establish the corpus delicti in this case.

Appellant contends that the trial court erred in permitting the introduction into evidence of two photographs of Stevens’ body in the trunk of the burned automobile. The photographs corroborated part of the accomplice witness’ testimony; they were relevant, and a verbal description of their contents was admissible. The photographs were properly admitted. Knoppa v. State, 505 S.W.2d 802 (Tex.Cr.App.1974); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972).

Appellant contends that the trial court committed fundamental error when it permitted the accomplice witness to testify to an extraneous offense immaterial to the charged offense. This contention is directed to the following passage in the record:

“Q. What was your basis for your — in what way did you know Mr. Shannon or Castro over here and Herschel Stevens, the deceased?
“A. Through dope dealings.
“Q. All right. Did you purchase illegal drugs from them?
“A. Yes, sir, marijuana.
“MR. McSHANE: We’re going to object to anything that he did with the deceased.
“THE COURT: The deceased?
“MR. McSHANE: Yes, sir.
“THE COURT: Overruled.”

The prosecutor went on to ask the witness several more questions with regard to marihuana purchases by the witness from both appellant and the deceased.

The objection voiced by appellant at the trial is general, and does not comport with the contention he now makes on appeal; nothing is presented for review. Campbell v. State, 521 S.W.2d 636 (Tex.Cr.App.1975); Hulin v. State, 438 S.W.2d 551 (Tex.Cr.App.1969); Spencer v. State, 438 S.W.2d 109 (Tex.Cr.App.1969). We do not agree with appellant’s assertion that the testimony was so prejudicial and inflammatory that it warrants a reversal despite the want of a proper objection.

In his final ground of error, appellant contends that the trial court erred in excluding testimony as to the bad reputation of the accomplice witness for being a peaceful and law-abiding citizen. Outside the presence of the jury, appellant made the following oral motion:

“MR. McSHANE: All right, now comes James Frank Shannon, the defendant in this case, and would respectfully state to the Court that the issue of Robert Evans being a peaceful and law-abiding citizen is in issue in this case and that the witnesses we have called should be allowed to testify to that fact and we would respectfully ask this Court to allow that testimony.
“THE COURT: I won’t allow if
“MR. McSHANE: Note our exception, please.
“THE COURT: All right. If you have some witnesses on truth and veracity, I’ll let you offer that.”

Appellant then closed without calling further witnesses.

In the impeachment of a witness, the inquiry should be confined to his general reputation for truth and should not extend to his general moral character. Belt v. State, 47 Tex.Cr.R. 82, 78 S.W. 933 (1904). The trial court properly ruled that testimony as to Evans’ reputation for truth and veracity was admissible, but that testimony as to his general reputation for being peaceful and law-abiding was not admissible. Padron v. State, 41 Tex.Cr.R. 548, 55 S.W. 827 (1900). See 1 McCormick and Ray, Texas Evidence, Secs. 645-647 (2d ed. 1956); McCormick, Evidence, Sec. 44 (2d ed. 1972); Fed.R.Evid. rule 608.

The judgment is affirmed.


author: ODOM, Judge.

text:
    Douglas Mark WEST, Appellant, v. The STATE of Texas, Appellee.
    No. 54963.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 28, 1978.
    Thomas D. Farris, Amarillo, for appellant.
    Randall Sherrod, Dist. Atty., and Richard L. Wilcox, Asst. Dist. Atty., Canyon.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for criminal trespass. V.T.C.A., Penal Code Sec. 30.05. Punishment was assessed at 280 days in jail and a $500 fine.

We are confronted at the outset with fundamental error in the jury charge that requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P.

The complaint and information charged that appellant did:

“ . . . intentionally and knowingly enter and remain in a habitation, without the effective consent of Gail Maureen West, the owner thereof, the said DOUGLAS MARK WEST having notice the entry was forbidden, . . ”

In applying the law to the facts in the jury instructions the court charged:

“Now, bearing in mind the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendants, DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON2 on or about the 9th day of April, 1976, in the County of Randall and State of Texas, did then and there unlawfully enter and remain in a habitation, without the effective consent of the said GAIL MAUREEN WEST, the owner, and the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST, and MICHAEL LEROY THOMPSON had received notice that the entry was forbidden, then you will find the said DOUGLAS MARK WEST, DEWAYNE TIMOTHY WEST and MICHAEL LEROY THOMPSON guilty as charged, but if you do not so find, or have a reasonable doubt thereof, you will find the defendant not guilty.”

Appellant was charged with criminal trespass under Sec. 30.05(a)(1), supra, which provides:

“(a) A person commits an offense if he enters or remains on property or in a building of another without effective consent and he:
“(1) had notice that the entry was forbidden; . . . ”

The statutory language does not prescribe a culpable mental state. V.T.C.Á., Penal Code Sec. 6.02(b) and (c) requires one nevertheless:

“(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.
“(c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under Subsection (b) of this section, intent, knowledge, or recklessness suffices to establish criminal responsibility.”

Although Sec. 30.05, supra, does not prescribe a culpable mental state, we hold that a culpable mental state of intentionally, knowingly, or recklessly is required by Sec. 6.02, supra. Day v. State, Tex.Cr.App., 532 S.W.2d 302, 306, n. 2. Cf. Bocanegra v. State, Tex.Cr.App., 552 S.W.2d 130; Zachery v. State, Tex.Cr.App., 552 S.W.2d 136; Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751; Braxton v. State, Tex.Cr.App., 528 S.W.2d 844. For offenses that require a culpable mental state, it is an element of the offense and must be alleged in the indictment. V.T.C.A., Penal Code Sec. 1.07(a)(13); Ex parte Garcia, Tex.Cr.App., 544 S.W.2d 432; Tew v. State, Tex.Cr.App., 551 S.W.2d 375; Zachery, Winton, supra.

It is well established that a jury charge is fundamentally defective if it authorizes conviction on a theory not supported by the indictment. E. g. Shaw v. State, Tex.Cr.App., 557 S.W.2d 305; Peoples v. State, Tex.Cr.App., 548 S.W.2d 893; Long v. State, Tex.Cr.App., 548 S.W.2d 897. In Morter v. State, Tex.Cr.App., 551 S.W.2d 715, the Court quoted approvingly from Moore v. State, 84 Tex.Cr.R. 256, 206 S.W. 683 (1918):

“Wherever the indictment charges an offense, the facts and the charge of the court must conform to the charges contained in the indictment, and it is fundamentally wrong to authorize a conviction on any state of facts other than those which support the finding of the truth of the indictment.”

In the cases cited above, the fundamental error in the charge occurred by submission of means of committing the offense not alleged in the indictment. Logic suggests that failure of the charge to require the jury to find all elements of the offense alleged would be equally defective, because such a charge would likewise fail to “conform to the charges contained in the indictment.” Windham v. State, 530 S.W.2d 111, was such a case and the charge there was held fundamentally defective. The court there wrote:

“The charge which authorized the jury to find the appellant guilty of aggravated assault omitted one of the essential elements of the offense.”

The indictment here properly alleged the culpable mental state element of the offense; the charge to the jury, however, omitted this element of the offense. See the charge and indictment set out above. Failure to include in the jury charge all essential elements of the offense as alleged in the indictment constitutes fundamental error under the authorities cited and quoted above.

The judgment is reversed and the cause remanded.

      , 2. Appellant’s codefendants.


author: VOLLERS, Judge.

text:
    Ex parte Herman Claton FORGASON
    No. 56715.
    Court of Criminal Appeals of Texas, En Banc.
    June 28, 1978.
   OPINION

VOLLERS, Judge.

This is an application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C. C.P.

Petitioner was convicted of the offense of robbery by a firearm, on his plea of guilty to the court in Cause number 2022-B in the District Court of Randall County, and was sentenced to a fifty (50) year term of imprisonment on January 25,1972. No appeal was perfected.

Petitioner filed his application for writ of habeas corpus in the trial court, contending that the indictment upon which he was tried was fatally defective since it failed to allege or describe the property taken. The trial court entered findings of fact and conclusions of law recommending the application be denied.

Initially, we note that the indictment in the case at bar alleges that on or about November 15, 1971, the petitioner, Herman C. Forgason

“Did then and there unlawfully and willfully make an assault upon the person of Jackie C. Lowery, hereinafter styled injured party, and did then and there by said assault and by violence to the said injured party, and by then and there putting the said injured party in fear of life and bodily injury and by then and there using and exhibiting a fire-arm, to wit: a pistol; did then and there fraudulently take from the person and possession of said injured party, corporeal personal property then and there belonging to said injured party; without the consent and against the will of said injured party, and with the fraudulent intent then and there on the part of said defendant to deprive the said injured party of the value of the same, and with the intent to appropriate the same to the use and benefit of said defendant;” (emphasis supplied)

Petitioner contends that the failure of this indictment to properly describe the property taken renders the indictment fatally defective, and he relies on Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970). In Mankin this Court held that robbery is only an aggravated form of theft, and that a description of the property taken was essential to the validity of the indictment, relying upon Wilson v. State, 171 Tex.Cr.R. 391, 356 S.W.2d 928 and Holland v. State, 110 Tex.Cr.R. 384, 10 S.W.2d 561. It was further held that the failure to give any description of the corporeal personal property was a fatal defect, which could be raised for even the first time on appeal.

Since Mankin was decided, this Court has rendered numerous other opinions holding that all the essential elements of a robbery indictment under Art. 1408, V.A.P.C. (1925) must be included in the indictment, otherwise that indictment is rendered fatally defective. See Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975). See also Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977) and Ex parte Cannon, 546 S.W.2d 266 (Tex.Cr.App.1976).

Additionally, this Court has held that fatally defective indictments may be challenged by way of post-conviction habeas corpus. See Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975); Ex parte Haywood, 550 S.W.2d 292 (Tex.Cr.App.1977); Ex parte Fontenot, 550 S.W.2d 87 (Tex.Cr.App.1977).

For the reasons stated, we are of the opinion that the indictment in the case at bar is fatally defective. See Mankin v. State, supra. Thus the relief prayed for is granted, the conviction in Cause number 2022-B is reversed, and the prosecution is ordered dismissed.

It is so ordered.


author: TOM G. DAVIS, Judge.

text:
    Walter Ronald HAYNES, Appellant, v. The STATE of Texas, Appellee.

    No. 55074.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 12, 1978.
    Rehearing En Banc Denied Sept. 20, 1978.

      Donald W. Rogers, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Kenneth W. Sparks, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.

      EDITOR’S NOTE: The opinion of the Court of Criminal Appeals of Texas in Dorsey v. State, published in the advance sheets at this citation (567 S.W.2d 518) was withdrawn from this volume and will be republished.

   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for possession of heroin. After appellant had been found guilty by the jury, punishment was assessed by the court at ten years.

The appellant complains that the trial court erred “by allowing the witness R. E. Ashwood to testify over objection as to the contents of a hearsay conversation that he had with a confidential informer in connection with this case.”

The record reflects that R. E. Ashwood was an officer with the Narcotics Division of the Houston Police Department. Ash-wood testified that he came in contact with the appellant on January 28, 1976, at a house located at 1922 Debeney in Houston. Ashwood then testified as follows:

“Q. How did you happen to be at that particular location?
“A. I had received information from a credible informant that there was— “MR. CHAMBERS [defense counsel]: Objection, if the court please as to what his information was. “THE COURT: Sustain the objection.
“Q. Without going into what information you received, was the information that you received with regard to a certain residence, or with regard to certain persons?
“A. Yes, it was.
“Q. With regard to which, or both?
“A. To the residence and to three people.
“Q. Do you know which three people?
“A. At the time that the information was obtained, I didn’t know the full names. I knew first names of each actor involved in this case.
“Q. Did one of the names match this defendant?
“A. Yes, sir.
“MR. CHAMBERS: If the court please, we would object to that. It constitutes hearsay testimony.
“THE COURT: Well, I overrule the objection.
“MR. CHAMBERS: Note our exception for the record.”

The record reflects that Officer Ashwood was then asked, “And why were you going to arrest the people leaving that location?” to which appellant’s counsel stated, “We have no objection as to what he did, but as to what his plan was — ”. The court ruled, “I think as it came in the objection is not tenable.” The question, “Why were you going to arrest those three people there at that location?” was repeated and the witness answered, “They were supposed to have heroin in their possession.”

It is well established that it is error to admit the hearsay testimony of an informer before a jury where probable cause is not in issue before the jury. Torres v. State, Tex.Cr., 552 S.W.2d 821; Smith v. State, Tex.Cr., 511 S.W.2d 296; Barber v. State, Tex.Cr., 481 S.W.2d 812; Dawson v. State, Tex.Cr., 477 S.W.2d 277; Vara v. State, Tex.Cr., 466 S.W.2d 315.

In the instant case no issue of probable cause was before the jury. Ash-wood’s testimony as to what the informer told him was clearly hearsay. We hold that it was error for the court to overrule appellant’s objection to such hearsay.

Whether or not such error is so harmful as to require reversal depends on the facts of each case. Smith v. State, supra; Figueroa v. State, Tex.Cr., 473 S.W.2d 202.

The record in the instant case reveals that as Ashwood approached the house at 1922 Debeney in response to the informer’s tip the appellant left the house along with two other people. The other people were identified as Belinda Haynes, appellant’s wife, and Ernest Castro, who also lived at the house. Ashwood had a uniformed patrol car stop the appellant’s car. A search of the three revealed “four papers” of heroin on Castro. No “drugs or contraband” were found on appellant or his wife. Appellant then executed a written consent form allowing the officers to search the house at 1922 Debeney. The search of the house revealed two more “papers” of heroin in Castro’s room. A search of the room appellant shared with his wife revealed only a baggie of marihuana in a lady’s glove. A search of a cabinet over the sink in the kitchen revealed a hypodermic needle and a plastic measuring spoon. Martin Wuensch, a chemist with the Houston Police Department, testified that his analysis of these items for presence of narcotics was “negative.” Also found in the cabinet was a metal measuring spoon which contained 3.8 milligrams of cooked heroin. The search also revealed a bag of toy balloons and a stack of tin foil cut into squares. All three residents of the house had open access to the kitchen. No heroin was ever found on the appellant or in any area under his exclusive control. Under these circumstances, we cannot say that the hearsay was harmless error.

The State relies on Maxon v. State, Tex. Cr., 507 S.W.2d 234, for the proposition that since appellant’s name wasn’t mentioned specifically, the error should be considered harmless. In Maxon, the testimony was that people living at a certain address were dealing in heroin. The address was an “18-unit apartment complex where many people lived, and there was no reference to appellant’s apartment number.” In the instant case, Ashwood was asked: “Did one of the names match this defendant.” [Emphasis added.] This question specifically linked the appellant to the information given by the informant. Thereafter, the witness testified that he was going to arrest the three people at the residence because “They were supposed to have heroin in their possession.” Maxon is clearly distinguishable from the instant case.

The judgment is reversed and the cause remanded.


author: PHILLIPS, Judge.

text:
    Ex parte Charles M. SPENCER.
    No. 58002.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 28, 1978.

      Ronald W. Chapman (court appointed on appeal), Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds and Hugh Lucas, Jr., Asst. Dist. At-tys., Dallas, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order entered in the 204th District Court of Dallas County remanding appellant for extradition to the State of Arizona to answer a charge of escape.

The appellant contends that the trial court erred in remanding him to Arizona since the State failed to prove that he is the identical person named in the executive warrant of the Governor of Texas.

After the Governor’s warrant and supporting documents which authorized the extradition of “Charles M. Spencer” were introduced into evidence, the State rested. With such documents, the State made out a prima facie case for extradition. Ex parte Burns, Tex.Cr.App., 507 S.W.2d 777; Ex parte Reagan, Tex.Cr.App., 549 S.W.2d 204.

Thereupon, the appellant introduced into evidence an affidavit as follows:

“My name is Francis Henry Bula.
I deny being one and the same as one Charles M. Spencer who is currently being sought by the State of Arizona for the alleged offense of Escape, said offense alleged to have been committed in Arizona on December 8, 1977.
I further deny being in the State of Arizona on December 8, 1977.”

This affidavit by appellant was sufficient to place identity into issue. Ex parte Viduari, Tex.Cr.App., 525 S.W.2d 163. Where identity is placed in issue, as it was in this case, the burden is upon the demanding state to show that the person taken into custody and held for extradition is the identical person named in the warrant. Ex parte Martinez, Tex.Cr.App., 530 S.W.2d 578; Ex parte Parker, Tex.Cr.App., 515 S.W.2d 926.

There is no evidence in the record to show appellant is the same person as Charles M. Spencer. The State presented no witnesses and offered no evidence to show they are the same person. The supporting papers contain a photograph and a description of Charles M. Spencer. However, there is no statement in the record identifying appellant as the man in the picture or indicating the appellant meets the description of Charles M. Spencer.

The evidence is therefore insufficient to show that the appellant is the same person demanded by the Governor of Arizona and whose extradition is authorized by the Governor’s warrant. Ex parte Smith, supra; Ex parte Parker, supra; cf. Ex parte Martinez, supra; Ex parte Elliott, Tex.Cr.App., 542 S.W.2d 863.

The judgment is reversed and the cause remanded.

      . It must be noted that the supporting papers from Arizona reflect that one of the aliases of Charles M. Spencer is Francis H. Bula. The burden of going forward with the evidence shifts to appellant when the prima facie case of identification is made out by the presumption arising from identity of name. Ex parte Smith, Tex.Cr.App., 515 S.W.2d 925. However, even with identical names, the appellant places identity-in issue when he denies he is the individual being sought by the demanding State. Ex parte Viduari, supra.


text:
    Ace WHITLOW, Appellant, v. The STATE of Texas, Appellee.
    No. 55345.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 28, 1978.
    A. J. Novelli, Marlin, for appellant.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a building. Punishment, enhanced by one prior conviction, was assessed by the jury at life.

Appellant complains that “the trial court committed fundamental error in its jury instruction which authorized conviction under a theory not contained in the indictment.”

Appellant was convicted for burglary of a habitation under V.T.C.A., Penal Code, Sec. 30.02(a). The indictment in the instant case, omitting the formal parts, reads as follows:

“Ace Whitlow, on or about the 4th day of March, A.D.1976, and before the presentment of this indictment, in said County and State, did then and there intentionally and knowingly, and without the effective consent of Frank Lacina, enter a building owned by Frank Lacina and did then and there commit theft, to-wit: did then and there unlawfully obtain property from Frank Lacina, the owner thereof, without the effective consent of Frank Lacina and with intent to deprive said owner of said property.” [Emphasis added.]

The relevant portion of the charge in the instant case reads as follows:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 4th day of March, 1976, in Falls County, Texas, the defendant, Ace Whitlow, did enter a building not then open to the public, occupied, controlled, and in the possession of Frank Lacina, hereinafter called the owner, without the effective consent of the owner, with the intent then and there to commit the offense of theft of personal property therein being, then you will find the defendant guilty as charged.” [Emphasis added.]

Section 30.02(a), supra, provides three separate ways in which the offense of burglary may be committed. Shaw v. State, Tex.Cr.App., 557 S.W.2d 305. The indictment alleged appellant had committed burglary under Sec. 30.02(a)(3) (commission of theft after entry). The charge only authorized the jury to convict under Sec. 30.-02(a)(1) (entry with intent to commit theft).

In Shaw v. State, supra, it was held that the trial court committed fundamental error in authorizing the jury to convict the defendant in a burglary of a building case where the charge authorized conviction if the entry were made “with the intent to commit theft” when the indictment had charged that the defendant had entered the building and “attempted to commit and committed theft.”

In the instant case, the jury was charged so as to allow the jury to convict the appellant if entry of the building were made “with the intent then and there to commit the offense of theft” when the indictment had charged that appellant entered the building and “did then and there commit theft.”

As in Shaw, we conclude that the charge herein authorized a conviction on a theory of burglary not alleged in the indictment and presents fundamental error requiring reversal of this cause.

The judgment is reversed and the cause remanded.

      . See V.T.C.A., Penal Code, Sec. 12.42(b).

      . V.T.C.A., Penal Code, Sec. 30.02(a), provides: “(a) A person commits an offense if, without the effective consent of the owner, he:
      “(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
      “(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
      “(3) enters a building or habitation and commits or attempts to commit a felony or theft.”


author: ODEN, Justice.

text:
    Ex parte Charles G. MOORE.
    No. 8571.
    Court of Civil Appeals of Texas, Texarkana.
    April 25, 1978.
    Rehearing Denied June 6, 1978.

      Clayton L. Hall, Lovett & Herrington, Clarksville, for relator.
    Pat C. Beadle, Beadle & Beadle, Clarks-ville, for respondent.
   ODEN, Justice.

This is an original habeas corpus proceeding instituted pursuant to Tex.Rev.Civ.Stat.Ann. art. 1824a (Supp.1978). The relator, Charles G. Moore, was restrained in his liberty within the judicial district of this Court for failure to make child support payments. Notice of the show cause hearing which gave life to the order of commitment under which Moore was incarcerated was, pursuant to court order, served by posting same on the front door of relator’s residence and forwarding a duplicate original thereof to relator by registered mail, return receipt requested, at his residence. Moore had no personal notice or knowledge of the show cause hearing at which he was held in contempt until one day after it had transpired. There is no evidence that relator was secreting himself for the purpose of avoiding service of process. The question is whether Moore was afforded due process of law. We hold that he was not.

On August 3, 1964, relator and Gail Moore were divorced. The divorce decree provided, inter alia, for relator to pay $75.00 per month child support. On August 4, 1974, Gail Moore filed a complaint with the court that granted the divorce by which she requested the issuance of an order directing Moore to show cause why he should not be held in contempt for failure to make child support payments for the preceding eighty-three (83) months. The show cause order was promptly issued; however, responsible parties were unable to personally serve the notice on Moore. On August 18, 1977, Gail Moore obtained an order authorizing service by registered mail and by posting the notice on the front door of relator’s residence. The sheriff’s return reflects that the notice was posted on relator’s residence on August 19, 1977, and the return receipt indicates that the notice was received in the mail on August 20, 1977. The show cause hearing was held on September 9, 1977. Relator did not appear. The order of commitment was issued on that date. On September 16, 1977, relator was arrested and retained in the Red River County Jail until November 23, 1977, when this Court admitted him to bail pursuant to Tex.Rev.Civ.Stat.Ann. art. 1824a (Supp. 1978). The uncontroverted affidavits of relator attached to relator’s brief clearly show that relator received no personal notice or knowledge of the show cause hearing until September 10, 1977, when he talked with his wife on the telephone. There is no evidence or suggestion that relator deliberately avoided the service of process.

It is a denial of due process to commit a person to prison for contempt who has no personal notice or knowledge of the show cause hearing at which he was held in contempt. Ex Parte Herring, 438 S.W2d 801 (Tex.1969). This is true even though substituted service is accomplished through compliance with Tex.R.Civ.P. 106. The issue is not whether relator was served in compliance with the rules, but rather whether he was afforded due process. We are not faced with deciding if one who deliberately avoids process is charged with constructive notice of the contents of the process because there is no evidence or suggestion that relator deliberately avoided the service of process.

A recitation in the order adjudging relator in contempt to the effect that relator was duly cited and notified to appear is not controlling on the due process issue even though it is the general rule in this State in civil cases that a recitation of due service in a judgment cannot ordinarily be impeached by collateral attack. Ex Parte Cardwell, 416 S.W.2d 382 (Tex.1967). It is the duty of this Court to consider the entire record to determine whether due process has been accorded relator and it would be unconscionable for us to hold that a trial court could order the seizure and incarceration of a citizen with no notice and then deprive him of a right to relief in a habeas corpus proceeding by reciting in its judgment that the person had been duly served. Ex Parte Cardwell, supra.

It is the duty of this Court to order the release of persons illegally restrained upon an order of commitment for the violation of a court order. Tex.Rev.Civ.Stat. Ann. art. 1824a (Supp.1978). The pendency of a motion to purge in the district court does not relieve us of this duty and Gail Moore’s suggestion that this Court lacks jurisdiction in the premises because of the pendency of such a motion is not well taken.

It is ordered that relator be discharged.

      . The residence was occupied by relator’s mother-in-law; however, she declined to accept service stating she did not know relator’s whereabouts.

      . The return receipt bore handwriting purporting to be relator’s signature; however, uncon-troverted affidavits show that relator’s daughter by a subsequent marriage, who was then under 16 years of age, receipted for the notice by signing her father’s name.

      . The order was issued pursuant to Tex.R. Civ.P. 106 (1977) which reads;
      “Unless it otherwise directs, the citation shall be served by the officer delivering to each defendant, in person, a true copy of the citation with the date of delivery endorsed thereon and with a copy of the petition attached thereto. Where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service by leaving a copy of the. citation, with petition attached, at the usual place of business of the party to be served, or by delivering same to anyone over sixteen years of age at the party’s usual place of abode, by registered or certified mail, or in any other manner which will be reasonably effective to give the defendant notice of the suit.”
      We are not required to find whether or not the posting of the notice on the front door of relator’s residence was reasonably effective to give him notice of the show cause hearing because of our holding that he was not afforded due process of law.

      . We have accepted same as correct because unchallenged in the brief filed on behalf of Gail Moore. Tex.R.Civ.P. 419. However, although the affidavits are uncontroverted, they are still hearsay and we think it is poor practice to allow a person who has been incarcerated for failure to pay child support to be released from jail on his ex parte affidavit and that of his family or relatives without the holding of an evidentiary hearing where the affiants can be cross-examined to determine the truth of their statements. Apparently this procedure was approved in Ex Parte Herring, 438 S.W.2d 801 (Tex.1969), and while we feel duty bound to follow it, such procedure seems to be an unprecedented method for determining the truth. Our notion of fairness compels us to state that we believe that justice would best be served in a habeas corpus proceeding by directing the trial court to hold an evidentiary hearing on whether or not the relator received notice of the contempt proceedings, with the findings being certified to this Court for our determination of,whether relator has been illegally restrained of his freedom.

      . One day after it had transpired.


author: GUITTARD, Chief Justice. AKIN, Justice,

text:
    Willie SIMS v. CENTURY KIEST APARTMENTS.
    No. 19368.
    Court of Civil Appeals of Texas, Dallas.
    May 5, 1978.
    Rehearing Denied May 31, 1978.

      Michael M. Daniel, Dallas, for appellant.
    Dan W. Shieder, Jr., Dallas, for appellee.
   GUITTARD, Chief Justice.

Willie Sims brought this suit against Century Kiest Apartments, his former landlord, for damages for a retaliatory eviction. The principal question is whether a former tenant has a cause of action for termination of his periodic tenancy and eviction by forcible detainer proceedings in retaliation for the tenant’s reporting of code violations to city authorities. We hold that such a cause of action, if established by evidence, does exist, and, consequently, that the trial court erred in rendering summary judgment for the landlord on the pleadings.

Sims alleged that he had been a tenant at. Century Kiest Apartments for approximately nine years under an oral tenancy from week to week; that during his occupancy the condition of the premises had steadily deteriorated; that he had repeatedly complained to the management about the problem and had helped organize a tenants’ council; that acting on his own and as officer of the council, he had reported to city authorities violations of various housing, building and health codes; that although his rent was fully paid, he had received from the landlord a written notice to vacate the apartment within ten days; that his tender of the full rent due on the next rent-payment date was refused; that the landlord had filed a forcible detainer suit against him and recovered judgment for possession of the premises in the justice court and also, on appeal, in the county court at law; that the landlord’s termination of the tenancy was done with specific intent to retaliate against him for organizing and belonging to the tenants’ council, complaining to the management about needed repairs and maintenance, and reporting code violations to various departments of the city; and that as a result of the termination of the tenancy, he was injured by being forced to move out of his home and “has suffered a chilling effect of his exercise of his First Amendment rights.” He seeks recovery of his moving expenses, the additional rent he had to pay for a comparable apartment, damages for “deprivation of his First Amendment rights,” punitive damages, and his attorney’s fee.

The landlord filed a motion for summary judgment on the sole ground that plaintiff was a tenant from week to week, that the landlord had “an absolute right to terminate a tenancy at will when proper notice is given to the tenant of such termination,” and that it was undisputed that such a notice had been given. Although the motion was not accompanied by affidavits or any other summary-judgment proof, the tenant filed an opposing affidavit tending to support the allegations of his petition.

The landlord attempts to justify the summary judgment in its favor on the ground that it has an absolute right to terminate the tenancy on proper notice at the end of any week, and then to recover possession of the premises, and that its motive in doing so does not give rise to an action for damages. The tenant recognizes the rule that ordinarily a landlord may terminate a periodic tenancy without cause, but contends that if it does so for the purpose of interfering with the tenant in the exercise of his constitutional rights of free speech and free assembly, or in retaliation for his exercise of those rights, a legal wrong has been done for which an action for damages will lie.

We agree with the tenant that the petition is sufficient to state a cause of action for damages. Although no reported decision in Texas has dealt with the question, the legal consequences of a retaliatory eviction have been considered in a number of other jurisdictions. A crucial consideration is whether the tenant’s rights are infringed. The leading case holding that the tenant’s rights áre infringed is Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969), in which the United States Court of Appeals for the District of Columbia Circuit allowed a defense of retaliation in a summary-possession proceeding on the ground that the policy of Congress in directing the promulgation of housing regulations in the District of Columbia for the benefit of tenants would be contravened by allowing evictions for reporting violations of such regulations. By resting its decision on the public policy implicit in the statute, the court avoided a decision based solely on constitutional grounds. Acknowledging that the summary-possession statute made no provision for such a defense, the court said:

“It is true that in making his affirmative case for possession, the landlord need only show that his tenant has been given the 30-day statutory notice, and he need not assign any reason for evicting a tenant who does not occupy the premises under a lease. But while the landlord may evict for any legal reason or for no reason at all, he is not, we hold, free to evict in retaliation for his tenant’s report of housing code violations to the authorities. As a matter of statutory construction and for reasons of public policy, such an eviction cannot be permitted.” [Id. 130 U.S.App.D.C. at 409, 397 F.2d at 699]

Concerning the practical effect of permitting eviction in retaliation for reporting code violations, the court observed:

“There can be no doubt that the slum dweller, even though his home be marred by housing code violations, will pause long before he complains of them if he fears eviction as a consequence. Hence an eviction under the circumstances of this case would not only punish appellant for making a complaint which she had a constitutional right to make, a result which we would not impute to the will of Congress simply on the basis of an essentially procedural enactment, but also would stand as a warning to others that they dare not be so bold, a result which, from the authorization of the housing code, we think Congress affirmatively sought to avoid.” [Id. 130 U.S.App.D.C. at 412, 397 F.2d at 701]

This decision has been followed in a number of cases in the state courts.

Relief against retaliatory eviction has also been granted in the federal courts. There, the main consideration has been whether “state action” was involved so as to provide a right of action under the Fourteenth Amendment of the United States Constitution and under the Civil Rights Act, 42 U.S.C. § 1983. In at least one case, it has been held that invocation of a state remedy for summary possession, such as our forcible detainer procedure, is in itself sufficient state action to establish a violation of federal constitutional rights if the landlord is motivated solely by retaliation against the tenant for reporting violations of housing regulations. Hosey v. Club Van Cortlandt, 299 F.Supp. 501, 506 (S.D.N.Y.1969). Other federal courts have required some kind of special state support of the landlord’s position other than merely providing a “neutral” remedy available to all landlords before state action has been recognized. McQueen v. Druker, 438 F.2d 781, 785 (1st Cir. 1971); LaVoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972); Walton v. Darby Town Houses, Inc., 395 F.Supp. 553, 559 (E.D.Pa.1975). In all of the federal cases cited, the courts recognized that an eviction in retaliation for the tenants’ complaints to public officials had a seriously adverse effect on the tenant’s rights because of the practical problem posed to the tenant in requiring him either to forego his constitutional rights of free speech and free association or to vacate his rented home and seek other accommodations.

We need not, however, determine whether a retaliatory eviction without state action is an actionable violation of the tenant’s constitutional rights if any other ground exists to hold it to be a legal wrong. In Edwards v. Habib, supra, the court found such a ground to exist in the policy of the housing regulations to protect tenants from unsanitary and unsafe housing conditions. Such regulations cannot be effectively enforced, the court said, if tenants, who are the principal persons interested in reporting violations, are intimidated by threats of eviction; consequently, eviction for the sole purpose of retaliation for reporting such violations cannot be permitted and must be considered wrongful.

The public policy recognized in Edwards v. Habib is a particular application of the general policy to encourage, rather than discourage, the reporting of violations of law to proper authorities. The leading case on this point is In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895). There the petitioner was charged with conspiracy to injure or intimidate a citizen in the free exercise of a right under the Constitution or laws of the United States by interfering with the reporting of violations of the federal internal revenue laws. The Supreme Court rejected the contention that a private citizen had no federally protected right to report such violations and quoted the principle stated in the earlier case of Ex parte Yarborough, 110 U.S. 651, 662, 4 S.Ct. 152, 157, 28 L.Ed. 274 (1884), as follows:

[I]t is the duty of [the] government to see that he may exercise this right freely, and to protect him from violence while so doing or on account of so doing. This duty does not arise solely from the interest of the party concerned, but from the necessity of the government itself

The court observed that this right does not depend on any particular amendment to the Constitution but “arises out of the creation and establishment by the Constitution itself of a national government, paramount and supreme within its sphere of action.” We recognize that the interference in Quarles was violent, and, therefore, in itself a violation of local law. It was held to be a violation of federal law, however, not because of any express enactment, but only because of the essential public policy to protect persons who report violations.

The same public policy exists in all states. Lachman v. Sperry-Sun Well Surveying Co., 457 F.2d 850, 853 (10th Cir. 1972). It has been expressly recognized in Texas and has been found more compelling than a competing policy favoring the use of grievance procedure in labor-management disputes. Thus, it had been held to invalidate a provision in a collective-bargaining agreement tending to deter prompt reports of criminal offenses by the persons immediately affected. Goodyear Tire & Rubber Company v. Sanford, 540 S.W.2d 478, 484. (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). In that case, the court said:

For the orderly functioning of our society, people must be completely free from all forms of coercion against reporting violations of the law. Indeed, it is their duty to do so.

Under these authorities, a citizen has a right to be free to report violations of the law without intimidation or coercion. This right need not be expressly provided by statute because it is implied from the very existence of the remedial legislation. This principle was stated in Edwards v. Habib, supra, as follows:

The notion that the effectiveness of remedial legislation will be inhibited if those reporting violations of it can be intimidated is so fundamental that a presumption against the legality of such intimidation can be inferred as inherent in the legislation, even it if is not expressed in the statute itself. [Emphasis added.] 397 F.2d at 701.

We need not consider whether a cause of action exists generally in favor of any informant who suffers reprisals for reporting violations of the law. The question here is whether a member of the class for whose benefit remedial legislation has been enacted has such a cause of action. In this situation, the public policy against interference with reports of violations is particularly strong. Effective enforcement of such legislation depends largely on reports of violations by the persons most directly affected, and if those persons are so intimidated or coerced by fear of retaliation as to prevent their reporting of violations, the violator is enabled to persist in his violations without suffering whatever civil or criminal penalties may be provided.

In the present case, we have no statute before us comparable in all respects to that found in Edwards v. Habib to imply a prohibition against retaliatory eviction. Plaintiff alleges only that his tenancy was terminated with the specific intent to retaliate against him for reporting violations of “various housing, building and health codes of the city of Dallas.” Although the terms of these codes are not before us, we must presume on this appeal from a summary judgment on the pleadings that the petition could have been amended to include specific allegations of the ordinances alleged to have been violated and that these allegations could have been supported by proof. See Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974). In order to prevail on its motion for summary judgment, defendant had the burden to meet plaintiff’s case as pleaded. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751 (Tex.1976). Plaintiff had no burden to produce the ordinances in response to the motion; rather, defendant had the burden, as a moving party, to produce them if it contended that they did not support the allegations of the petition. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). See also Cook v. Brundidge, Fountain, Elliott & Churchill, supra. The only ground alleged in the motion for summary judgment is that the landlord had an absolute right to terminate the tenancy at will when proper notice is given. Thus, our question on this appeal is not whether there are such ordinances, but whether such ordinances, if proved, would establish that a tenant is within the class of persons for whose benefit such ordinances were enacted, so as to provide a basis for a cause of action against the landlord for interference with his reporting of violations.

The ordinances alleged presumably were enacted under the authority of the city’s home-rule charter, which is authorized by article XI, § 5, of the Texas Constitution. Moreover, article 1175, § 35, Tex.Rev. Civ.Stat.Ann. (Vernon Supp.1977) expressly authorizes enactment of ordinances which require “the demolition or repair of buildings which are dilapidated, substandard, or unfit for human habitation and which constitute a hazard to the health, safety, or welfare of the citizens.” This statute is a recognition by the legislature that the public welfare may require that dwellings offered for rental be safe and fit for habitation. Kamarath v. Bennett, 568 S.W.2d 658 (Tex., 1978). . Although article 1175 does not in itself provide a comprehensive system of housing regulations like the statute under consideration in Edwards v. Habib, we must presume that the ordinances alleged in the petition, enacted under the authority of this statute or otherwise, did provide such a system and did impose various duties on the owners of rental property, as well as others, for the health, safety and welfare of occupants of such property, including tenants and their families. Thus, there is the same reason here to imply a prohibition against retaliation against a tenant for reporting violations as in Edwards v. Habib. The fact that the codes in question are effective only within the city of Dallas, rather than throughout the state, as in the case of a general statute, does not affect the problem. The controlling principle is the policy against intimidation or coercion that would discourage or inhibit reports of violations of the law by persons for whose benefit the law has been enacted.

Defendant contends that regardless of any public policy against interference with reporting of violations of the law, he has an absolute right to terminate a periodic tenancy by giving the notice prescribed by article 5236a, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1978), which provides that a monthly tenancy may be terminated on one month’s notice, and, if the rent is payable at periods of less than a month, the period of notice is sufficient if it is equal to the interval between the times of payment. This statute is consistent with the common-law rule that the landlord has the power to terminate a periodic tenancy on reasonable notice, as recognized in cases such as Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935), but it defines more particularly the period of the notice and provides that the tenancy may be terminated on such notice before the end of a rent-paying period, with a proportionate abatement of the rent. Recognition of the landlord’s power to terminate the tenancy, whether common-law or statutory, does not establish that he has a legal right to do so for the purpose of retaliation against the tenant for reporting the landlord’s violation of the law. Our question is whether his termination for that purpose is a legal wrong for which an action for damages will lie.

We conclude that the tenant has a legal right to be free of interference with his reporting of violations of laws enacted for his benefit and that the landlord has a correlative duty not to interfere with the tenant’s exercise of that right. If the tenant had no such right, the public policy to encourage reports of violation of the law would be substantially frustrated. Accordingly, although the landlord may have the legal power to terminate the tenancy, in our opinion the law recognizes no legal right to do so for the sole purpose of retaliation when otherwise he would have permitted the tenant to continue his tenancy. On this basis, we hold that retaliatory eviction is a legal wrong for which an action for damages will lie.

Defendant insists that to recognize such a cause of action would create a defense of retaliatory eviction in a forcible detainer case and thus, in effect, would extend the tenancy indefinitely, contrary to law and contrary to the agreement of the parties. Although we rely on Edwards v. Habib and the other eviction cases cited as authority for the view that retaliatory eviction is wrongful, our present holding does not go so far as to-hold that it would constitute a defense in forcible detainer. An argument can be made to the effect that the power to terminate exists, notwithstanding violation of the tenant’s right to be free of interference in reporting violations, since the tenant has no privilege to continue his occupancy if the tenancy on which that privilege depends has terminated. There is force also to the argument that whether such termination is wrongful cannot properly be decided in a forcible detainer proceeding, which determines only who shall have the immediate possession and cannot be appealed beyond the county court. The rule is settled that a judgment for the landlord in forcible retainer does not bar a later action for damages for wrongful eviction. Johnson v. Highland Hills Drive Apartments, 552 S.W.2d 493, 494 (Tex.Civ.App. — Dallas 1977, writ ref’d n. r. e.); McCloud v. Knapp, 507 S.W.2d 644, 647 (Tex.Civ.App. — Dallas 1974, no writ). Since forcible detainer is a summary remedy, the issues should be narrow and uncomplicated. Thus we do not decide the question of whether retaliatory eviction would be a defense in a forcible detainer case.

Since our holding is based on the public policy of the state implicit in its statutes and in ordinances, we need not confront the question of whether a cause of action for retaliatory eviction exists based on public policy against interference with the exercise of the constitutional rights of freedom of speech, freedom of assembly, and freedom to petition for redress of grievances. Tex.Const., art. I, §§ 8, 27; U.S.Const., Amends. I, XIV. Neither do we hold that this kind of wrong is a “prima facie tort,” based simply on harm intentionally caused without justification or excuse. See Forkosch, An Analysis of the “Prima Facie Tort” Cause of Action, 42 Corn.L.Q. 465 (1957); Schoshinski, Remedies of the Indigent Tenant: Proposal for Change, 54 Geo.L.J. 519, 548 (1966). In deciding such an eviction to be wrongful, we hold only that if the evidence shows that the tenant probably would not have been evicted had he not reported violations of regulations enacted for his benefit, then such an eviction is an affirmative wrong for which an action for damages will lie in favor of the aggrieved tenant.

The scope of this holding is quite narrow. It would not extend, for example, to a case in which the evidence shows that the tenant’s complaints were not made in good faith, or to a case in which the landlord had affirmative grounds for eviction, such as nonpayment of rent. The question of damages may also be difficult, but it is not now before us. Consequently, we do not pass on whether any of the elements of damages alleged in the tenant’s petition are recoverable, even if the elements of a retaliatory eviction are shown.

The objection is made that this court is engaging in judicial legislation by creating a cause of action for retaliatory eviction, and that such a course should be left to the legislature, which can strike a more delicate balance of the competing interests and can impose precise limitations appropriate to those interests. We agree that a well-drawn statute would be a superior solution to this problem for future cases. Such a solution, however, is not available in this case. The legislature cannot determine whether this particular plaintiff has stated in his petition a cause of action for damages on which he is entitled to present his evidence at a trial. That is a question which we have the responsibility to decide, subject to review by the Supreme Court of Texas.

Of course, we must consider the effect of our decision as a precedent until the supreme court rules, but we do not regard it as a legislative decision except in the sense that the decision in any case of first impression sets a precedent. In that sense, a decision denying relief would be no less legislative. We cannot accept the view that if the question before us has never been decided before, our decision must always be to deny relief. That view is opposed to the whole development of the common law. Our decision overrules no precedents and disregards no established rules. If legislation is needed to govern future cases of this sort, it may be enacted, regardless of this decision.

Our former opinion is withdrawn and this opinion is substituted. Otherwise, defendant’s motion for rehearing is overruled. The judgment of the trial court is reversed and the cause is remanded.

AKIN, Justice,

dissenting.

I cannot agree that a cause of action for retaliatory eviction exists based upon public' policy as advanced by the majority. Those of us in the judiciary may think that wé perceive that which is in the public interest better than the elected legislators of the people; nevertheless, it is the function of our legislature, rather than the courts, to declare the public policy of this state. Carpenter v. Sheppard, 135 Tex. 413, 145 S.W.2d 562, 565 (1940); Scarborough v. Payne, 198 S.W.2d 917, 919 (Tex.Civ.App.— San Antonio 1947, writ ref’d); Houston-American Life Insurance Co. v. Tate, 358 S.W.2d 645 (Tex.Civ.App. — Waco 1962, no writ). In my view, the holding of the majority usurps the function of the legislature by the judiciary, and contradicts the basic concepts of our form of government embodied in the Constitution of the United States and of the State of Texas, both of which sharply delineate the functions of the legislature, the executive, and the judiciary. The function of the legislature is to enunciate the public policy, the duty of the executive to execute that policy, and the duty of the judiciary to construe those statutes passed by the legislature and to determine whether they contravene the constitutions of the State of Texas or of the United States. It is not the function of the judiciary to usurp the legislative function under the guise of public policy. As Mr. Justice Jackson stated in Collins v. Hardyman. 341 U.S. 651, 663, 71 S.Ct. 937, 942, 95 L.Ed.2d 1253 (1951), “It is not for this Court to compete with Congress or attempt to replace it as the nation’s law-making body.” If, as some think, the landlord-tenant relationship need be changed, the legislature is the place to obtain that change, rather than in the courts.

The judiciary should not act where the legislative branch has apparently chosen' not to do so. The legislature in both 1973 and 1975 revised substantially the landlord-tenant statutes in this state, giving tenants far more rights than they had under prior law. Nevertheless, the legislature apparently chose not to grant tenants a cause of action based on retaliatory eviction. Thus, the majority has chosen to ignore the legislature’s obvious will as well as the historic distinction in the functions of the legislature and the judiciary. It is never the judiciary’s function to declare that public policy it thinks desirable or just; rather it is our duty to apply those policies clearly expressed by the legislature through statutes. The majority opinion establishes a dangerously oligarchic precedent.

The opinion of the majority reflects the Platonic view that philosopher kings know that which is best for the people, rather than the people themselves. Hopefully our judiciary is blessed with such philosophers, but I cannot accept this contravention of the traditional functions of the legislature and the judiciary.

The sound logic behind the sharp delineation between the function of the legislature and that of the judiciary is best illustrated by the very question decided by the majority of this court. If a bill granting a tenant a cause of action for retaliatory eviction was introduced into the legislature for consideration, interested people in the State of Texas would have an opportunity to express their wishes to their legislators, who, in turn, could fully debate all aspects of the question. The legislature could then determine by vote whether the proposed bill would become law, thus expressing the public policy. Such an opportunity for input is not afforded the people of this state when the majority of an appellate court, composed of three members, makes the determination of what is in the interest of the public and effectively legislates through judicial decree a remedy for an assumed wrong. In granting a cause of action in tort for retaliatory eviction, the majority of this court has gone further than any court, state or federal.

The public policy apparently relied on by the majority to- justify its novel holding is the particular application of the general policy to encourage, rather than discourage, the reporting of violations of the law to proper authorities. They rely primarily on the Supreme Court’s decision in In Re Quarles, 158 U.S. 532 (1895). I cannot agree that that case is applicable to the facts presented here. Quarles was an original writ of habeas corpus where the relators sought release from prison, having been convicted of conspiracy for injuring and intimidating a person because the victim had reported violations of the internal revenue laws. The actions of relators violated a federal statute prohibiting anyone from conspiring “to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same.” In holding that relators violated this statute, the Court found that the threatened right of the victim was the right of every citizen to assist in prosecuting and in securing punishment of any breach of the peace of the United States. . Quarles is not authority to support the majority’s public policy predicate. In the first place, the right of a citizen in reporting violations of the laws is to secure punishment for a breach of peace. Here, no breach of the peace exists. Second, the actions of the relators in Quarles violated a statute which provided punishment of conspiracies to oppress citizens from reporting violations of federal law; no such statute exists here. Thus, it was from this statute that the court in Quarles found a public policy, whereas here we have no such declaration of public policy by our legislature. Public policy of the state cannot be found in city ordinances. It would be specious to state that the public policy of the City of Dallas is the public policy of the State of Texas. Thus, in the absence of a clear declaration of public policy by the state legislature, I do not regard Quarles as authority to find the public policy to support the majority’s holding.

The majority also states that this public policy has been expressly recognized in Texas in the case of Goodyear Tire and Rubber Co. v. Sanford, 540 S.W.2d 478 (Tex.Civ. App. — Houston [14th Dist.] 1976, no writ). However, Goodyear Tire, also is distinguishable. In Goodyear Tire, supra, an employee successfully sued to set aside an arbitrator’s award under a union contract affirming the employee’s discharge by the company because the employee had filed criminal assault charges against his supervisor. In affirming the trial court’s judgment vacating the arbitrator’s decision, that coürt held that a labor agreement which provided that court action could not be taken until all grievance procedures had been exhausted was inapplicable where the employee had filed both a grievance and criminal assault charges against his supervisor. The rationale of the court was that it would be a violation of public policy to enforce the labor contract in that it would obstruct the enforcement of the laws of the state. Although I agree that this is the law, the case does not apply to our facts. Here the only contract was an oral one providing for a week to week tenancy and there was no prohibition in the contract against reporting housing code violations. Consequently, unless there is a contractual prohibition against reporting of these housing code violations there is no violation of public policy. Additionally, since the allegations here are reported violations of city ordinances, not state statutes, there can be no violation of the public policy of the State of Texas.

The majority apparently rests its holding on the rationale of Edwards v. Habib, 130 U.S.App.D.C. 126, 397 F.2d 687 (1968), cert. denied, 393 U.S. 1016, 89 S.Ct. 618, 21 L.Ed.2d 560 (1969). That case is distinguishable from the case here in that Congress had enacted extensive housing codes for the District of Columbia, thus expressing the public policy of the Congress with respect to the question before that court. In fact, even the quotations from Edwards in the majority opinion establish that statutory construction was a ground for that decision. Id. 130 U.S.App.D.C. 138, 140-141, 397 F.2d 699, 701-702. No such extensive and specific codes have been enacted by our legislature. This distinction is poignantly enunciated by the concurring opinion in Edwards which notes that a Congress which enacts a housing code together with its enforcement cannot be taken to have excluded retaliatory eviction as a defense to a routine statutory eviction statute also promulgated by Congress. Edwards v. Habib, supra, rested its decision on the ground that Congress by enacting the housing code with enforcement provisions implicitly intended to permit retaliatory eviction as a defense to a forcible detainer action to effectuate that legislation.

Nevertheless, I do not agree with the rationale of either the majority opinion or the concurring opinion in that case, instead, I agree with the view, expressed by the dissent, that a specific act of Congress was required to legislate retaliatory eviction as a defense to a forcible detainer action. The dissent also poses the question, unanswered by the majority, that such judicial legislation permits the landlord to be deprived of his property without due process of law. In Edwards, the majority opinion’s basis of divining the congressional intent with respect to enforcement of the housing codes by permitting retaliatory eviction as a defense, is weakened, if not indeed contradicted, by footnote 52 which notes that three bills had been introduced in Congress dealing specifically with retaliatory eviction, but none were reported out of committee. Edwards, 130 U.S.App.D.C. at 141, 397 F.2d at 702. In my view, this shows a congressional intent contrary to that intent derived in the majority’s opinion. Consequently, I do not regard Edwards v. Habib, supra, as persuasive authority to hold that a suit may be maintained in tort for an alleged retaliatory eviction.

The majority opinion observes that the ordinances in question were presumably enacted under the authority of the city’s home rule charter and they specifically point to Article 1175 § 35, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1978) which gives home rule cities the authority to enact ordinances requiring the demolition or repair of buildings. They state that this shows that the legislature has recognized that the public welfare may require that dwellings offered for rental must be safe and fit for habitation. In my view, reliance on this article is misplaced in that it in no way establishes a particular public policy. Indeed, in no way can it be read as adopting a public policy for the entire state when Article 1175 itself applies only to home rule cities. Is the majority holding that only home rule cities have this policy to encourage the reporting of violations? Even under Article 1175, home rule cities may adopt conflicting ordinances to deal with identical subjects. Thus, it is absurd to maintain that diverse local ordinances express a single legislative policy.

In nearly all jurisdictions, where either a cause of action for retaliatory eviction exists or where such may be asserted defensively, a specific statute so stating was enacted by the legislature. Texas has no such statute. Accordingly, in my view, the rights of the parties here are controlled by Article 5236a, Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1978), which is the only provision concerning termination of tenancies in Texas. It provides:

. [W]hen the rent reserved in a lease is payable at periods of less than a month, .the time of the notice of termination is sufficient if it is equal to the interval between the times of payment

The notice here was timely since it gave Sims ten days when the pay period was weekly. Since the landlord-tenant relationship is one of contract, the tenant may remain in the premises only until such time as the landlord terminates the lease. The landlord’s right to possession is an incident of ownership, while the tenant’s right of possession is dependent upon the agreement with the landlord. Thus, Sims merely had an expectancy that his lease would be extended for only another week. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935). To hold, as the majority does, that there is a limitation of the landlord’s right to terminate, not only alters the contract between landlord and tenant, but is also in conflict with this explicit statute. Consequently, I would hold, as did the trial court, that the landlord’s motive in evicting Sims was immaterial.

      . Schweiger v. Superior Court of Alameda County, 3 Cal.3d 507, 90 Cal.Rptr. 729, 476 P.2d 97 (1970) (tenant exercising statutory repair-and-deduct remedy is protected against retaliatory rent increase and eviction); E. & E. Newman, Inc. v. Hallock, 116 N.J.Super. 220, 281 A.2d 544, 546 (1971) (retaliatory eviction allowed as defense to dispossession action under statute making such reprisal a misdemean- or); Markese v. Cooper, 70 Misc.2d 478, 333 N.Y.S.2d 63, 73 (Monroe County Ct. 1972) (defense of retaliatory eviction allowed in summary possession action); Dickhut v. Norton, 45 Wis.2d 389, 173 N.W.2d 297 (retaliatory eviction allowed as defense to unlawful detainer action in view of urban renewal statute compa-rabie to Tex.Rev.Civ.Stat.Ann. art. 1269/-3 (Vernon 1965). See also Robinson v. Diamond Housing Corp., 150 U.S.App.D.C. 17, 463 F.2d 853 (1972) (extending holding in Edwards v. Habib to protect from retaliatory eviction a tenant who had successfully interposed housing code violations as defense in previous eviction proceeding). See generally Developments in Contemporary Landlord-Tenant Law: An Annotated Bibliography, 26 Vanderbilt L.Rev. 689, 708-709 (1973); Annot., 40 A.L.R.3d 753 (1971). A contrary decision, Aluli v. Trusdell, 54 Haw. 417, 508 P.2d 1217, 1220 (1973), has been overruled by statute. Haw.Rev.Stat. § 521-74 (1976).

      . This distinction between a “right” and a “power” is consistent with the classical analysis of jural relations by Professor Hohfeld in his well-known article, Some Fundamental Legal Conceptions as Applied in Legal Reasoning, 23 Yale L.J. 16 (1913). The same analysis is adopted in Restatement of Property §§ 1, 3 (1936). These authorities recognize that a power may be exercised effectively, but nonetheless wrongfully, if exercised in violation of a duty. Hohfeld, op. cit., at 52, 53; Restatement of Property § 3, Comment a, Illustrations 2, 3 (1936).


author: ROBERTSON, Justice.

text:
    Ex parte Shelley McBRIDE, Relator.
    No. 19602.
    Court of Civil Appeals of Texas, Dallas.
    May 10, 1978.
    Stephen F. Hefner, Sherman, for appellant.
    Richard A. Danna, Dallas, for appellee.
   ROBERTSON, Justice.

This is a habeas corpus proceeding under Article 1824a of the Texas Revised Civil Statutes. Shelley McBride, relator, seeks discharge from the custody of the Sheriff of Dallas County. He was detained pursuant to a commitment order issued by the judge of the 302nd District Court, who found relator in contempt for failing to pay child support ordered by a decree of an Oklahoma court. We grant the writ of habeas corpus, and discharge relator from custody.

Relator was originally divorced from his wife in Oklahoma, and the Oklahoma court ordered relator to make periodic child support payments. In November, 1977, his former wife filed a motion for contempt in a Texas district court based upon relator’s disobedience of the Oklahoma support decree. The Texas court held relator in contempt, but suspended his commitment upon certain conditions. When relator failed to comply with the conditions, the suspension was revoked and he was imprisoned.

The sole question in this case is whether a Texas court may hold a person in contempt for disobedience of an order issued by the court of another state without complying with applicable Texas statutes. The only Texas authorities we have located on this point hold that Texas courts may punish persons for failing to comply with the provisions of a foreign support decree. See Ex Parte Helms, 152 Tex. 480, 259 S.W.2d 184 (1953); Guercia v. Guercia, 239 S.W.2d 169 (Tex.Civ.App.—Waco 1951) writ ref’d n. r. e. per curiam, 150 Tex. 418, 241 S.W.2d 297 (1951). Significantly, however, both of those cases concerned situations where the foreign state either had not adopted the Uniform Reciprocal Enforcement of Support Act (URESA), Tex.Family Code Ann., § 21.01 (Vernon 1975), as in Guercia, or the foreign states’ enactment of URESA was not proved, as in Helms. Oklahoma, however, has enacted URESA, see Okla.Stat. Ann., Ch. 12, § 1600.1 (West 1961), and to allow enforcement of foreign support orders by other procedures would frustrate the intent of the legislatures of both Oklahoma and Texas in providing, through URESA, an efficient means of enforcing foreign support orders. Indeed, the rationale for allowing enforcement of foreign orders in cases where URESA was not controlling supports the use of URESA as an exclusive remedy in cases where it is relevant. As stated in Guercia, supra:

[S]ince it is the father’s legal duty to support his minor children under the express provisions of our statutes, and since such duty cannot be discharged by flight from one state, or one jurisdiction, to another, our view is that the public policy of the State of Texas demands that the defendant’s obligation (while residing in the State of Texas) to support his minor children in the State of Ohio be performed as fully as if the defendant had incurred such obligation in our state. (239 S.W.2d at 173) [Emphasis added]

If the general public policy as expressed in statutes concerning domestic support duties compelled enforcement of foreign support orders, then surely the specific public policy embodied in URESA demands that the procedures specified by that Act be used in all cases to which it applies. The procedure for cases such as Helms and Guercia has been set forth with more particularity in URESA. Sections 21.61-21.66 of the Texas Family Code provide for enforcement of foreign support orders when the obligee has registered the order with the clerk of the Texas court. Under Section 21.64, an obli-gee may register the order by filing a verified petition setting forth the amount unpaid, a list of other states in which the order is registered, and attaching a certified copy of the foreign support order, together with all subsequent modification decrees. Section 21.66 provides that a properly registered foreign support decree may be enforced “as if originally entered in the court of this state,” and states that all procedures available to enforce domestic orders are available to enforce registered foreign decrees, “including the power to punish the defendant for contempt . . . ” [Emphasis added].

Thus, we conclude that when a support decree is rendered in a state which has enacted URESA, that decree cannot be enforced by contempt proceedings in Texas without first complying with the procedures set forth in URESA. Since the trial court thus lacked jurisdiction to enforce the Oklahoma order, its commitment order is void, and the writ of habeas corpus must be granted.

Relator discharged.