author: ODOM, Judge.

text:
    Lex Newton BRAUDRICK, Appellant, v. The STATE of Texas, Appellee.
    No. 54587.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 1, 1978.
    Gene A. Garcia, Rockport, for appellant.
    John H. Flinn, Dist. Atty., Sinton, for the State.
    Before ROBERTS, ODOM and DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for voluntary manslaughter obtained on an indictment charging murder. Punishment was assessed by the jury at 20 years and a $5,000 fine.

In two grounds of error appellant challenges the sufficiency of the evidence to show voluntary manslaughter. Specifically, he argues there is no evidence that he was acting under the immediate influence of sudden passion arising from an adequate cause. The relation between murder and voluntary manslaughter must be examined.

Appellant was charged with murder under V.T.C.A., Penal Code Sec. 19.02(a)(1), which provides:

“(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual; . . .”

Sec. 19.04, Voluntary Manslaughter, provides in relevant part:

“(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.”

Appellant argues that acting “under the immediate influence of sudden passion arising from an adequate cause” is an element of the offense of voluntary manslaughter, and that no evidence in the record supports proof of that element. We hold that such fact is not an element of voluntary manslaughter, but is instead in the nature of a defense to murder that reduces that offense to voluntary manslaughter.

It is the use of language in Sec. 19.04 that creates the illusion that voluntary manslaughter has one additional element not found in murder. Sec. 19.04, supra, suggests that voluntary manslaughter is murder plus acting from a sudden passion, etc. Murder, however, is the greater offense and voluntary manslaughter is the lesser, and not vice versa. Murder, then, may be said to consist of these elements, taking Sec. 19.02(a)(1) as the example (the indictment here charging under that theory):

1) a person
2) intentionally or knowingly
3) causes the death
4) of an individual
5) while not acting under the immediate influence of sudden passion arising from an adequate cause.

Voluntary manslaughter consists of the same elements except for the last, which would be:

5) while acting under the immediate influence of sudden passion arising from an adequate cause.

This reflects the distinguishing fact that differentiates murder and voluntary manslaughter, as provided in Sec. 19.04(a), supra, which provides that voluntary manslaughter is the same as murder “except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.”

Sec. 19.02, supra, does not expressly require proof that the accused was not acting under the immediate influence, etc. This element is implied, and its proof is required, only where the evidence raises the issue that the accused was acting under such an influence. Thus, it can be seen that in a case where murder is charged and the statutory elements (as distinguished from the implied element) are proven by the State the jury should be charged on the statutory elements as stated in the facts alleged in the indictment. Only if the evidence raises the issue of voluntary manslaughter as a lesser included offense (see Art. 37.09(1), V.A.C.C.P.) must the implied element be charged. Here, although the implied element of murder was not charged in the murder paragraph of the jury instruction, it was adequately charged in the voluntary manslaughter paragraph. That portion of the jury instructions charged:

“Now if you find from the evidence beyond a reasonable doubt that on or about the 29th day of October, 1974, in Aransas County, Texas, the defendant, Lex Newton Braudrick, did then and there intentionally or knowingly cause the death of an individual, K. W. Smith, by stabbing him with a knife, but you further find and believe from all the facts and circumstances in evidence in the case, the defendant, in killing the deceased, if he did, acted under the immediate influence of sudden passion arising from an adequate cause, or if you have a reasonable doubt as to whether defendant acted under the immediate influence of a sudden passion arising from an adequate cause, then you will find the defendant guilty of voluntary manslaughter.” (Emphasis added.)

The distinguishing feature between murder and voluntary manslaughter is not a fact that must be proven beyond a reasonable doubt to establish voluntary manslaughter, nor is it a fact that must be disproven by the State to establish murder in the absence of some evidence raising an issue as to that fact. If the issue is raised, then it must be disproven to establish murder, and a reasonable doubt on the issue requires acquittal on the murder charge and allows conviction only for voluntary manslaughter. This is the reasonable construction of Secs. 19.02 and 19.04, supra, in conjunction with one another; this is how the jury was charged in this case; this renders voluntary manslaughter a lesser included offense of murder under Art. 37.09(1), supra, which it otherwise would not be; and this is in harmony with the procedural and evidentiary consequences of a defense as provided in V.T.C.A., Penal Code Sec. 2.08, which states:

“(a) A defense to prosecution for an offense in this code is so labeled by the phrase: ‘It is a defense to prosecution
“(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.
“(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.
“(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.
“(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.”

We therefore hold that causing death “under the immediate influence of sudden passion arising from an adequate cause” is in the nature of a defense to murder that reduces that offense to the lesser included offense of voluntary manslaughter, and that the State need not prove such influence beyond a reasonable doubt to establish voluntary manslaughter, but that if raised by the evidence it must prove the absence of such influence beyond a reasonable doubt to establish murder.

With this clear understanding of the nature of the “immediate influence” element, appellant’s grounds of error actually are tantamount to a claim that there is no evidence to support submission of the lesser included offense of voluntary manslaughter. The jury in returning a verdict of guilty of voluntary manslaughter found all of the statutory elements of murder were proven beyond a reasonable doubt, and further found a reasonable doubt on the defensive issue. We find the evidence was sufficient to support such reasonable doubt. The grounds of error are overruled.

In another ground of error appellant contends the trial court erred in failing to charge on self-defense against multiple assailants. Objection was not properly preserved and nothing is presented for review.

In the last ground of error raised by counsel, it is asserted that the punishment of a five thousand dollar fine is cruel and unusual in that appellant is indigent. Being within the statutory range, the punishment is not cruel and unusual. The ground of error is overruled.

Appellant raises numerous grounds of error in his pro se brief which are not supported by anything in the record and therefore cannot' be considered by this Court.

Finding no reversible error, we affirm the judgment.

ROBERTS, J., concurs in the result.

      . The facts show an escalating bar room brawl, with conflicting testimony on who started it and how it started.

      . It would violate the equal protection clause of the Fourteenth Amendment to confine appel-Iant for failure to pay the fine if he is indigent at the time his confinement under the term assessed against him expires. Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).


source: Caselaw Access Project

author: ROBERTS, Judge.

license: Public Domain

text:
    Dewayne Timothy WEST, Appellant, v. The STATE of Texas, Appellee.
    No. 54962.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 1, 1978.
    Robert Doyce Mallett, Amarillo, for appellant.
    Randall Sherrod, Dist. Atty. and Richard L. Wilcox, Asst. Dist. Atty., Canyon, for the State.
    Before ROBERTS, ODOM and DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for criminal trespass. Appellant was found guilty by the jury; his punishment was assessed by the Court at two hundred seventy days in jail and a fine of five hundred dollars.

Appellant was tried with his co-defendants Douglas Mark West and Michael Leroy Thompson. The pertinent facts of appellant’s case are identical to those of his co-defendant Douglas Mark West, whose appeal was decided by this Court on June 28, 1978, in an opinion by Judge Odom. West v. State, 567 S.W.2d 515 (Tex.Cr.App.1978). We therefore quote from that opinion, which controls the disposition of this case:

“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 THOMPSON 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.’ [Footnotes omitted.]

“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.A., 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, 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 woul,d be equally defective, because such a charge would likewise fail to ‘conform to the charges contained in the indictment.’ Windham v. State, Tex.Cr.App., 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.”

As in the co-defendant’s case, the judgment here must be reversed and the cause remanded.


author: W. C. DAVIS, Judge.

text:
    Manuel MONTALVO, Appellant, v. The STATE of Texas, Appellee.
    No. 55568.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 1, 1978.
    Stephen A. Hines, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., Miguel J. Cervantes, El Paso, for the State.
    Before ODOM, VOLLERS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for aggravated robbery. Appellant entered a plea of guilty before a jury, which assessed his punishment at eighteen years in the Texas Department of Corrections.

In his first ground of error, appellant contends that the trial court erred in failing to withdraw on its own motion appellant’s plea of guilty, when a factual issue of appellant’s guilt was raised during his testimony.

Appellant was convicted of aggravated robbery under V.T.C.A. Penal Code, Section 29.02, which provides:

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

and V.T.C.A. Penal Code, Sec. 29.03, which provides,

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code and he: .
******
(2) uses or exhibits a deadly weapon.”

At trial, the complaining witness testified that appellant, along with a companion, entered a convenience store and pointed a pistol at him, at which time he gave appellant money. Evidence showed that appellant was arrested outside the store and that a pistol was found in his possession at that time. Appellant testified in his own behalf, and upon cross-examination the following testimony was adduced:

“Q: . . . Were you, in fact, the individual who robbed [the complaining witnesses] on the 27th of December, 1975?
“A: Yes, sir, I pleaded guilty to that.
“Q: And you were holding that gun that is sitting — that’s in front of you over there to your right, is that it?
“A: Yes sir, it was in my pocket, sir.
“Q: And is that the gun that you pointed at [the complaining witness]?
“A: I don’t remember pointing it at him, because I don’t like to do that but I had it on me, but I think I was just pointing my finger at him.
“Q: You were just pointing your finger at him?
“A: Yes, sir.
“Q: Where was the gun?
“A: It was in my pocket.
“Q: You mean you never had that gun out during this entire time?
“A: Not that I remember. See, I don’t like guns.
******
“Q: Did you also point your finger at Robert Jenkins’ head when you ordered him into the cooler?
“A: Yes sir.
“Q: You didn’t have a gun in your hand at that time?
“A: No.
******
“Q: And you had this pistol?
“A: Yes sir.
“Q: In your pocket?
“A: Yes sir.
“Q: And you are telling the jury, then, that you never had that pistol out, and you never used it in any way?
“A: Yes sir.”

In Varela v. State, 553 S.W.2d 111 (Tex.Cr.App.1977), we stated,

“This court has for years held that when evidence introduced before a jury (when a defendant has entered a guilty or nolo contendere plea) makes evident the innocence of the accused or which reasonably and fairly raises an issue as to such fact and such evidence is not withdrawn, the trial court is required, sua sponte, to withdraw the accused’s guilty or nolo contendere plea and enter a not guilty plea for the accused, [citations omitted]
“For the rule to come into play the evidence must go farther (sic) than just tending to show a defensive issue, it must reasonably and fairly present such issue before the trial court is required to withdraw the guilty or nolo contendere plea. Reyna v. State, [434 S.W.2d 362 (Tex.Cr.App.1968)]; Galvan v. State, 525 S.W.2d 24 (Tex.Cr.App.1975); Davis v. State, 507 S.W.2d 740 (Tex.Cr.App.1974); Jones v. State, 491 S.W.2d 883 (Tex.Cr.App.1973).”

This is true even though no effort was made by defense counsel at any time during the trial to withdraw the plea and no objection was made to the court’s charge to the jury instructing them that a finding of guilty be rendered, Woodberry v. State, 547 S.W.2d 629 (Tex.Cr.App.1977); Gates v. State, 543 S.W.2d 360 (Tex.Cr.App.1976), and even though the testimony of appellant himself may have shown him to be guilty of the offense. Woodberry v. State, supra; Gates v. State, supra.

In the instant case, appellant admitted that he entered the store, armed, and that he robbed the complaining witness of money. However, in his testimony on cross-examination, he denied exhibiting or using a gun, and stated that the gun was in his pocket during the commission of the offense. This testimony, in spite of appellant’s entry of a plea of guilty, was sufficient to raise a factual issue as to appellant’s guilt of the offense of aggravated robbery. See V.T.C.A. Penal Code, Sec. 29.03. Therefore, after such testimony raised an issue as to his guilt of aggravated robbery, the trial court erred in not, sua sponte, withdrawing appellant’s plea of guilty. Woodberry v. State, supra; Gates v. State, supra; see also Varela v. State, supra, and cases cited therein.

Accordingly, the judgment is reversed and the cause remanded.

      . This appeal was originally abated for failure of appointed defense counsel to file a brief. A brief has been filed, so the appeal is reinstated.


text:
    Ex parte George ELDRIDGE.
    No. 58265.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 1, 1978.
    Before ROBERTS, ODOM and DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is a post-conviction habeas corpus application. See Art. 11.07, Vernon’s Ann. C.C.P. Appellant contends that the felony information used to commence the prosecution against him is fundamentally defective. The trial court has recommended that the relief requested be granted. We agree and grant the requested relief.

Omitting the formal parts, the information alleges that on or about September 21, 1974, in Dallas County, appellant

“did unlawfully, then and there, knowingly and intentionally carry on and about his person a handgun, and the GRAND JURORS AFORESAID, further deposes and says that prior to the commission of the aforesaid offense by said defendant to-wit: on the BO day of May, A.D., 1972, in Cause No. C72-5573-IL in the Criminal District Court No. 5, of Dallas County, Texas, styled the State of Texas vs. George Edward Eldridge, the said Defendant was duly and legally convicted of an offense of Rape.”

The information constitutes an attempt to charge appellant with the offense of unlawful possession of a firearm by a felon. V.T.C.A., Penal Code, Section 46.05. That statute provides:

“(a) A person who has been convicted of a felony involving an act of violence or threatened violence to a person or property commits an offense if he possesses a firearm away from the premises where he lives.
“(b) An offense under this section is a felony of the third degree.”
Thus, the elements of the offense are:
(1) a person
(2) who has been convicted of a felony
(3) involving an act of violence or threatened violence to a person or property
(4) who possesses a firearm
(5) away from the premises where he lives.

A reading of this information reveals that it omits the fifth of these elements: there is no allegation that the firearm was possessed away from the premises where appellant lived.

An indictment or information which does not allege all of the elements of the felony charged does not invoke the jurisdiction of the district court. Suarez v. State, 532 S.W.2d 602 (Tex.Cr.App.1976); Carpenter v. State, 551 S.W.2d 724 (Tex.Cr.App.1977). Since the information in this case fails to allege the necessary element that the firearm was possessed away from the premises where appellant lived, it does not charge a felony offense.

The information is also defective in failing to allege that the rape alleged to have been previously committed was a felony involving an act of violence or threatened violence. This is an essential element, since some felonies — including rape — can be committed with or without violence or threats of violence. Tew v. State, 551 S.W.2d 375, 377 (Tex.Cr.App.1977).

However, we conclude that the information is sufficient to allege the misdemeanor offense of unlawfully carrying a handgun, as defined by V.T.C.A., Penal Code, Sec. 46.02. Therefore, as in Suarez and Carpenter, the cause is remanded to the trial court, there to be transferred to a court having jurisdiction of the misdemean- or offense.

The requested relief is granted. The information in cause number C-74-9357HL is remanded to the trial court for disposition consistent with this opinion.

      . As in Suarez and Carpenter, our holding should not be read to preclude the State from seeking a valid re-indictment of appellant. Also, should the State seek to prosecute this information as a misdemeanor, we observe that under Texas law a misdemeanor information, unlike a felony information, must be supported by a valid complaint. Art. V, Sec. 17, Vernon’s Ann.Tex.Const.; Chapple v. State, 521 S.W.2d 280 (Tex.Cr.App.1975).


author: TOM G. DAVIS, Judge.

text:
    Calvin RABB, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 58466.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Nov. 1, 1978.
    Billy D. Moore, Dallas, Court appointed, for appellant.
    Henry Wade, Dist. Atty., John Tatum, Andy Anderson and Ron N. Poole, Asst. Dist. Attys., Dallas, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from an order revoking probation. Appellant pled guilty before the court to the offense of burglary of a habitation on October 24, 1975. Punishment was assessed at seven years, probated.

On September 23, 1977, the State filed a motion to revoke probation in which it was alleged that appellant had violated those conditions of his probation which required that he (1) commit no offense against the laws of this or any other state or the United States; (2) report to the probation officer monthly, and (3) pay a probation fee of $10 per month to the probation officer on or before the 1st day of each month during probation. After a hearing was held on the motion on October 21, 1977, the court entered its order revoking probation which contained findings that appellant had violated the conditions of probation set forth in the motion to revoke.

Appellant’s sole contention is that the trial court erred in proceeding to trial in the primary offense “prior to the expiration of the mandatory ten days to prepare for trial and without a properly executed waiver of the ten day period.”

Appellant directs our attention to the order appointing counsel for appellant in the primary offense on October 16, 1975, and the judgment therein reflecting that the trial and entry of judgment occurred on October 24, 1975.

Article 26.04, V.A.C.C.P., relating to the appointment of counsel for indigents, provides in subsection (b) that:

“The appointed counsel is entitled to ten days to prepare for trial, but may waive the time by written notice, signed by the counsel and the accused.”

The record contains no written waiver of the ten day period to prepare for trial and appellant urges that the judgment in the primary offense is void.

The general rule is that failing to appeal when placed on probation waives the right to review. Hungerford v. State, Tex.Cr.App., 474 S.W.2d 242; Brooks v. State, Tex.Cr.App., 459 S.W.2d 640; Hoskins v. State, Tex.Cr.App., 425 S.W.2d 825. Exceptions to this rule have occurred where the error complained of in the primary offense was a matter that could be attacked collaterally. See Perkins v. State, Tex.Cr.App., 504 S.W.2d 458; Martinez v. State, Tex.Cr.App., 494 S.W.2d 545; Ramirez v. State, Tex.Cr.App., 486 S.W.2d 373.

This Court has held that the failure to accord the accused and his court-appointed counsel the ten days preparatory period in accordance with Art. 26.04, supra, will result in a reversal if such failure is attacked on direct appeal, but may not be collaterally attacked in the absence of a showing of harm. See Ex parte Shields, Tex.Cr.App., 550 S.W.2d 670; Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666; Young v. State, Tex.Cr.App., 448 S.W.2d 484; Thomas v. State, Tex.Cr.App., 451 S.W.2d 907; Rinehart v. State, Tex.Cr.App., 463 S.W.2d 216; Clemons v. State, Tex.Cr.App., 501 S.W.2d 92; Sutton v. State, Tex.Cr.App., 519 S.W.2d 422.

We reject appellant’s contention that the judgment in the primary offense is void. Had appellant urged such matter on a direct appeal from the primary offense, reversal would have resulted from failure to comply with the mandatory terms of Art. 26.04, supra, but we will not order reversal in the primary offense on the basis here urged when complaint is made for the first time on appeal from the order revoking' probation.

We find no abuse of discretion in the court’s action in revoking appellant’s probation.

The judgment is affirmed.


author: PHILLIPS, Judge.

text:
    Bobby BREWER, Appellant, v. The STATE of Texas, Appellee.
    No. 58967.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 1, 1978,

      Gerald M. Brown, Temple, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This appeal is from an order revoking probation.

On September 10,1976, the appellant was convicted for the offense of theft of property of more than $200.00 but less than $10,-000.00 value. Appellant entered a plea of guilty before the court and imposition of the sentence was suspended and appellant was placed on probation for a period of five years.

On December 13,1977, a motion to revoke probation was filed alleging that appellant violated his probation by knowingly and intentionally possessing a usable quantity of marihuana of more than four ounces. Appellant was further charged with failing to report to his probation officer and failing to pay his supervisory fee and fine in monthly payments.

On February 9, 1978, a hearing on the motion was held, after which the probation was revoked.

Appellant’s first contention is that the trial court, by departing from its role as a neutral and detached hearing body and questioning witnesses in a prosecutorial manner, violated the appellant’s right to due process of law. It is clear from the record that the questions addressed to the witnesses involved were for the purpose of clarifying an issue before the court and that the court during such questioning maintained an impartial attitude. Such is permissible. Munoz v. State, 485 S.W.2d 782; Navarro v. State, 477 S.W.2d 281; Stewart v. State, 438 S.W.2d 560.

Further, appellant did not object to the conduct of the trial court in questioning the witnesses. The only “objection” the appellant made was to seek to have one witness, Judy Brewer, invoke her Fifth Amendment rights. Where no objection is made, remarks and conduct of the court may not be subsequently challenged unless they are fundamentally erroneous. Hart v. State, 447 S.W.2d 944; Dempsey v. State, 387 S.W.2d 891.

Appellant’s first ground of error is without merit.

Appellant further contends that the trial court abused its discretion in basing its revocation order on a finding that appellant did knowingly and intentionally possess a usable quantity of marihuana of more than four ounces .where it wrongfully refused to require the State to disclose the identity of its informer.

Officer Spriggs of the Killeen Police Department testified that on September 15, 1977, at about 12:30 a. m., he received a call from a confidential informant who had previously given him true and correct information in the past and that the informant had personally observed Bobby Brewer in possession of marihuana at 11:45 p. m. on September 14, about 45 minutes before the call. The informant told Officer Spriggs that the marihuana was being transported in a four-door, 1976 Cadillac, License No. QFM-771; that the marihuana was being carried in a brown paper bag; that the car would be at 807 Atkinson Street; and that between 12:50 a. m. and 1:30 a. m. the marihuana would be delivered to a residence.

Officer Spriggs further testified that he did not have time to procure a search warrant and that he along with Investigator Thomas Pico of the Fort Hood Military Police set up surveillance at 12:40 a. m. At about 12:55 a. m. appellant, known by the officer, exited his residence with a paper bag and got in the car and drove to a residence in the 900 block of Brewster Street. He then exited the vehicle with the paper bag, went into the house and stayed inside the house about five minutes before returning to the car. He still had the paper bag with him. Testimony revealed that the vehicle was then stopped after it left the residence at about 1:15 a. m. and that a paper bag containing about two ounces of marihuana and a scale were found in the car right beside appellant.

Officer Spriggs testified that after finding the marihuana he informed the appellant that he believed there was more marihuana in appellant’s residence, advised him of his rights, and asked him to give consent to the search of his residence. Consent was given and a usable quantity of more than four ounces of marihuana was found.

The record does not support appellant’s contention that the identity of the informant should have been disclosed. In the case at bar Officer Spriggs saw appellant carry the bag later found to contain marihuana from the house into his car. He then arrested appellant in actual possession of the marihuana. Because the informant’s knowledge of appellant’s possession of marihuana would be cumulative of the officer’s testimony, the informant was not a material witness to the guilt or innocence of the accused or whether appellant knowingly committed the crime. Albitez v. State, 461 S.W.2d 609; Ex parte Smith, 476 S.W.2d 29.

Since the informant was not present with the accused at the occurrence of the alleged crime, not a material witness to the transaction, and not a material witness to the accused’s knowing commission of the crime, no error was committed in refusing to disclose the identity of the informant. Rovario v. U. S, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Varela v. State, 561 S.W.2d 186; Andrew v. State, 558 S.W.2d 876; Barber v. State, 511 S.W.2d 937.

In his fourth and fifth grounds of error, appellant alleges that the trial court abused its discretion in basing its revocation order on a finding that appellant violated condition 12 of his probation in that he was delinquent in paying supervisory fees in the amount of $20.00, and violated condition 13 of his probation in that he was delinquent in paying his fine in the amount of $157.50, respectively.

The evidence discloses that during the period of delinquent payments appellant was gainfully employed with a construction company, had not missed work because of illness or a layoff, and managed to purchase a 1976 Cadillac and make $289.00 ear payments while keeping a 1969 El Dorado.

This evidence was sufficient to support the trial court’s findings that the appellant violated condition numbers 12 and 13 of his probation. Article 42.12, Section 8(c), Vernon’s Ann.C.C.P.; Curtis v. State, 548 S.W.2d 57.

These grounds of error are overruled.

Appellant’s third ground of error alleges that the trial court abused its discretion in basing its revocation order on the finding that appellant failed to report to his probation officer on the 10th day of September 1976 and weekly thereafter unless directed by the court to the contrary.

One of the grounds upon which the trial court revoked the appellant’s probation was that he violated condition number 5 of his probation providing: “5. Report to the probation officer on the 10 day of Sept., 1976 and weekly thereafter unless directed by the Court; . . .” This order was dated September 10, 1976.

A supplemental order, entitled “Probationer’s Report Dates,” also dated September 10, 1976, directed appellant to do the following:

“Report in person to Dan White, Adult Probation Officer, 301 Priest Dr., Killeen, TX., on September 10, 1976 and continue to report, in person on Each Thursday thereafter, unless otherwise directed by the Court.”

At the probation revocation hearing, Hubert Childress testified that he had been appellant’s probation officer since April of 1977. The State sought to prove and did prove that appellant had failed to report to Hubert Childress after October 10, 1977. However, the court had required appellant to report in person to a specific officer, Dan White, at a specific place, 301 Priest Dr., Killeen, Texas. There is no testimony or other evidence to document that the court at a subsequent time directed appellant to report to a different officer at a different place.

The State concedes that there was no evidence other than witness Childress’s testimony that the appellant failed to report to Dan White as ordered by the trial court. In finding such a violation, the trial court was in error. Davis v. State, 563 S.W.2d 264.

However, unlike the situation in Davis, supra, in this case the trial court found violations of probationary condition numbers 1, 12, and 13 which are sufficient to support the trial court’s action in revoking the appellant’s probation. No reversible error is shown.

Where the Court has the necessary data and evidence before it for reformation, the judgment may be reformed on appeal. Hancock v. State, 491 S.W.2d 139; Vasquez v. State, 477 S.W.2d 629. Accordingly, pursuant to our authority under Article 44.-24(b), Vernon’s Ann.C.C.P., the revocation order is reformed to delete the finding of a violation of probation condition number 5 pertaining to appellant’s failure to report to his probation officer.

The judgment is affirmed.


author: ONION, Presiding Judge.

text:
    Maria Jesus McGEE, Appellant, v. The STATE of Texas, Appellee.
    No. 59116.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 1, 1978.
    Dain P. Whitworth, Austin, for appellant.
    James L. McMurtry, County Atty. and Russell J. Bailey, Asst. County Atty., Austin, for the State.

      Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for theft, wherein the court assessed punishment at twenty (20) days in jail probated for twelve (12) months and a fine of three hundred dollars ($300.00).

Appellant urges four grounds of error in her brief, but in view of our disposition of the case only one ground of error will be discussed. In that ground of error, appellant contends that the information alleges that Delene Dosher was the owner of the goods taken, but that the State failed to prove that Delene Dosher was in fact the owner.

The record reflects that Delene Dosher was a security guard for the Joske’s department store in Travis County and observed appellant acting in a suspicious manner in the Junior Department section of that store. Dosher was in the process of following another person suspected of shoplifting at that time so she summoned two other security guards to observe appellant’s activities. These two guards testified that they saw appellant take a large number of items of clothing into an adjoining dressing room and returii later with a lesser number of articles. She had a large shopping bag with her. Appellant then left the Junior Department and went to the Misses’ Sportswear Department where she was seen to take a swimsuit and put it in her shopping bag. She proceeded then to the Boys’ Department where she took some shorts and a pair of trousers and put them in her bag. The two guards apprehended appellant just after she left the store and found two dresses from the Junior Department in her bag along with the other items mentioned.

The information alleges only the theft of the two dresses taken from the Junior Department and that they were taken “without the effective consent of the owner, De-lene Dosher.”

This court has frequently held that when property is owned by a corporation it is not only permissible but also better pleading practice to allege “special” ownership in a natural person acting for the corporation. Eaton v. State, 533 S.W.2d 33 (Tex.Cr.App.1976); Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App.1971).

V.T.C.A., Penal Code, §§ 1.07(a)(24) and (28) define “owner” and “possession” as follows:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”
“ ‘Possession’ means actual care, custody, control, or management.”

It is thus apparent that there are three different ways provided in the statute by which the State may show that Dosher was the owner of the property taken: that she had (1) title, (2) possession, or (3) a greater right to possession than appellant.

Here the evidence clearly showed that the corporation had “title” to the property; i. e., the corporation, not Dosher, was the true owner of the property.

With regard to the possession of the property, the testimony of Dosher was that she was a security guard employed by the store and her duties were to watch out for and apprehend shoplifters, to take care of injured people, to file complaints if a shoplifter is caught, and to recover merchandise that is shoplifted. She testified further that she had no responsibility to acquire goods for the store or keep a running inventory with reference to goods in the store, and that she had no managerial authority or control at all. She stated that Mel Courtney was the store manager.

This court held in Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976), that the evidence was sufficient in a burglary case to find that a security guard at a hospital was the “special” owner; however, the security guard there testified that he had the care, custody and management over the hospital and all those things within the hospital during the early morning hours when the burglary occurred.

Here the testimony of Dosher completely negates the claim by the State that she was in possession of the two dresses when they were taken and we thus find that the State had failed to prove that Dosher was a “special owner” because she had possession.

The third way in which the State might prove that Dosher was the “owner,” i. e., that Dosher had a greater right to possession of the property than did appellant, is not applicable to this case. While this phrase has found its way into several opinions which might have led to some confusion, it is clear that the “greater right to possession” concept of ownership applies only in those cases where both the “owner” and the “actor” have some sort of joint interest in the property. See Practice Commentaries to §§ 81.03 and 31.10, V.T.C.A., Penal Code. See also 2 Branch’s 3rd ed. 401.

We therefore find that Delene Dosher was not shown to be either the “special owner” or “true owner” as alleged in the information. See Commons v. State (Tex.Cr.App. # 54,485, May 17, 1978).

The judgment is reversed and the cause remanded.


text:
    George Vance MONTGOMERY, Principal and Sentinel Bonding Agency, Surety, Appellants, v. The STATE of Texas, Appellee.
    No. 59432.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 1, 1978.
    Henry Wade, Dist. Atty. and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is a bond forfeiture proceeding, wherein judgment was entered against appellants on December 14, 1977. Motion for New Trial was duly filed, but denied on March 15, 1978. Bill of Review was then filed, but was denied on May 9, 1978. Notice of appeal was given and on June 13, 1978, a cost bond and on June 16, 1978, a supersedeas bond were filed.

Rule 386, Texas Rules of Civil Procedure, provides that an appellant shall file the transcript and statement of facts with the clerk of the appellate court “within sixty [60] days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error.” No transcript or statement of facts has been filed with this court by appellants.

On August 23,1978, appellee, the State of Texas, filed in this court a motion for af-firmance on certificate pursuant to Rule 387, supra. That Rule provides that if appellant fails to file a transcript in the proper time then appellee may upon motion have the case affirmed on certificate.

We find that appellants did not file a transcript of the record in this case within the sixty (60) days allowed them.

Accordingly, appellee’s motion to affirm on certificate is granted and the judgment is affirmed.


text:
    Larry Dale COX, Principal and Sentinel Bonding Agency, Surety, Appellants, v. The STATE of Texas, Appellee.
    No. 59504.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Nov. 1, 1978.
    Henry Wade, Dist. Atty. and Harry J. Schulz, Jr., Asst. Dist. Atty., Dallas, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is a. bond forfeiture proceeding, wherein judgment was entered against appellants on February 16, 1978. Motion for New Trial was duly filed, but denied on March 23, 1978. Bill of Review was then filed, but was denied on May 25,1978. Notice of appeal was given on June 5, 1978, and on June 26, 1978, a cost bond and on June 28, 1978, a supersedeas bond were filed.

Rule 386, Texas Rules of Civil Procedure, provides that an appellant shall file the transcript and statement of facts with the clerk of the appellate court “within sixty [60] days from the rendition of the final judgment or order overruling motion for new trial, or perfection of writ of error.” No transcript or statement of facts has been filed with this court by appellants.

On September 5,1978, appellee, the State of Texas, filed in this court a motion for affirmance on certificate pursuant to Rule 387, supra. That Rule provides that if appellant fails to file a transcript in the proper time then appellee may upon motion have the case affirmed on certificate.

We find that appellants did not file a transcript of the record in this case within the sixty (60) days allowed them.

Accordingly, appellee’s motion to affirm on certificate its granted and the judgment is affirmed.


author: BISSETT, Justice.

text:
    GULF COAST FARMERS COOPERATIVE, Appellant, v. VALLEY CO-OP OIL MILL, a Cooperative Corporation, Appellee.
    No. 1252.
    Court of Civil Appeals of Texas, Corpus Christi.
    Aug. 29, 1978.
    Rehearings Denied Oct. 19, 1978.

      Harry L. Hall, Morris Atlas, Atlas, Hall, Schwarz, Mills, Gurwitz & Bland, McAllen, for appellant.
    James B. Corcoran, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellee.
   OPINION

BISSETT, Justice.

This is a suit for damages resulting from an alleged conversion of “stock” in a corporation and from an alleged breach of contract to sell and deliver fertilizer.

Gulf Coast Farmers Cooperative, hereinafter referred to as “Gulf Coast”, filed suit against Valley Co-op Oil Mill, hereinafter called “Valeo”, to recover damages for the alleged conversion of certain shares of Series II and Series IV stock of Mississippi Chemical Corporation, hereinafter designated as “Miscoa”, and for damages allegedly sustained by reason of Valeo’s refusal to deliver fertilizer to it under an allocation previously made by Valeo to it. Following a jury trial, Gulf Coast moved for judgment on the verdict and Valeo filed a motion for judgment non obstante veredicto. Valeo’s motion with respect to the action for conversion of the Series II stock was sustained. Judgment was rendered which was favorable to Gulf Coast in the action for conversion insofar as the Series IV stock is concerned, and concerning the Series IV stock and its claims for damages in the action for breach of contract. Gulf Coast and Valeo have each perfected an appeal to this Court from those portions of the judgment which were unfavorable to each of them.

This lawsuit involves a dispute as to whether or not Gulf Coast owned certain stock in Miscoa (which was allegedly converted by Valeo on March 3,1975), and as to whether Valeo’s refusal to deliver agricultural fertilizer to Gulf Coast after March 3, 1975 constituted a breach of a pre-existing contract to sell and deliver certain quantities of fertilizer to Gulf Coast. The precise nature of the “stock” is not made clear by either the pleadings or the evidence. Whatever the true nature of the “stock” in dispute in this lawsuit may be, the issues presented are: 1) did the several letters (hereinafter discussed) between Gulf Coast and Valeo, when construed together, constitute an agreement whereby Valeo agreed to sell certain Miscoa stock to Gulf Coast?; 2) If so, how many shares of Series II stock, and how many shares of Series IV stock were sold?; 3) Assuming that Gulf Coast did purchase Miscoa stock, after the number of shares of each series is determined, what was the market value of each share of the two series of stock on the day of its conversion, if there was a conversion thereof?; and 4) Was there a breach of a pre-existing contract to sell and deliver fertilizer?

Gulf Coast began purchasing fertilizer from Valeo in early May, 1972. Fertilizer was in short supply in later September, 1973. At that time, Valeo was purchasing fertilizer from Miscoa, and Gulf Coast was purchasing it from Valeo. Both Gulf Coast and Valeo became concerned over the effect that the fertilizer shortage would have upon the existing distribution chain between Valeo and Miscoa, which would, of necessity, have a pronounced effect upon Gulf Coast and its patrons under its then existing arrangement with Valeo. A number of letters passed between Valeo and Gulf Coast in an attempt to negotiate the precise allocation of Nitrogen fertilizer, designated by the parties and referred to herein as “Series II” stock, and Mixed Grade fertilizer, designated by the parties and referred to herein as “Series IV” stock.

Gulf Coast contends that the letters formed a contract between it and Valeo, whereby it (Gulf Coast) became the owner of certain shares of Miscoa Series II and Series IV stock. It further contends that the contract also gave it the right to purchase certain amounts of fertilizer for the period July 1,1974 to June 30, 1975. Valeo disputed those claims and asserts that all Gulf Coast acquired was an equity in Valeo.

As has been noted, judgment was rendered which was favorable to Gulf Coast with respect to its action for conversion of Miscoa Series IV stock, but the trial judge, concerning the action for conversion of Mis-coa Series II stock, granted Valeo’s motion for judgment non obstante veredicto. The evidence concerning Whether or not Gulf Coast purchased Miscoa Series II stock, in all material aspects, is the same as to whether it purchased Miscoa Series IV stock. In that state of the record, we believe that the trial court erred in rendering judgment on the verdict for Gulf Coast as to its action for conversion of Series IV stock and in granting Valeo’s motion for judgment non obstante veredicto concerning the action for conversion of Series II stock. The judgment further awarded Gulf Coast certain monies for breach of contract, caused by Valeo’s refusal to sell Gulf Coast its unused portion of the fertilizer allocation for the period of time in question. In this respect, we believe the trial court was correct. We, therefore, will sever the action for damages for conversion from the action for damages for breach of contract; we will reverse the judgment of the trial court with respect to the action for conversion and will remand that cause to the trial court, but we will affirm such judgment with regard to the action for breach of contract.

Both Gulf Coast and Valeo are farmers’ cooperative associations established under Tex.Rev.Civ.Stat.Ann. arts. 5737 et seq. Among other things, they furnished fertilizers and chemicals, to both members and non-members, to be used ultimately by farmers. Besides being subject to State statutes, both operate as tax-exempt cooperatives and must comply with federal tax rules and regulations in order to maintain their federal income tax exemption. After deduction of reasonable expenses of operations, cooperatives refund to their patrons all profits in the form of patronage refunds. Patrons usually receive refunds at the end of each of the cooperative’s fiscal years either in cash or allocation, giving the patrons equity ownership in the fund allocated. A tax-exempt cooperative may do business with non-members to a limited extent provided both members and non-members are dealt with equally. Here, Valeo furnished fertilizer and chemicals to Gulf Coast, a non-member of Valeo.

Miscoa is a manufacturer of agricultural fertilizers. Under its charter and by-laws, its stockholders have certain preferred patronage rights which give them the option to purchase fertilizers from it, and in order to obtain an efficient distribution of such products, Miscoa appoints Distributors and Agents to serve such stockholders. It was required that all stockholders of Miscoa be served “alike”. On May 9, 1972, a three-party contract was made whereby Miscoa (the “Company”) agreed to supply certain agricultural fertilizers to Valeo (its “Distributor”), and Gulf Coast (its “Agent”). The fertilizers to be delivered by Miscoa to Valeo would be distributed to the stockholders of Miscoa in accordance with “a list of certain holders” of Miscoa stock to be prepared by Miscoa and attached as exhibits to the contract. It was further provided by the contract that “each exhibit shall contain a statement of the amount of each class of stock owned by each person (hereinafter called ‘stockholders’) who are to be served by the Agent and Distributor”, subject, among other provisions, to the following:

* * * * * *
“Should any stockholder purchase additional stock o (sic) transfer his stock in accordance with the Charter and Bylaws of the Company, or assign his patronage rights in writing and notify th (sic) Company of such purchase, transfer or assignment, or should the Company change the preferred patronage rights of the Stockholders then in either of such events, the Company shall notify the Agent and the Distributor in writing who shall maintain such notice as a supplement to said exhibit and not as a part thereof.”

Neither the exhibits, lists, statements, charter or by-laws of Miscoa, referred to in the contract appear in the record. There is no indication that the contract was ever revoked, rescinded or changed in any way.

Gulf Coast apparently contends that its rights to purchase Miscoa stock became fixed by the contract. This is disputed by Valeo, which asserts that the said three-party contract, by its terms, only covers a situation where the ultimate consumer of the fertilizer is himself a Miscoa stockholder. Valeo further claims that it simply distributed Miscoa products to Gulf Coast. Valeo also insists that it was a Miscoa stockholder who sold the fertilizers allocated to it by Miscoa to its (Valeo’s) members and nonmember cooperatives and that it (Valeo) purchased the fertilizers from Miscoa, paid Miscoa for it, and charged its members and non-member cooperatives a sufficient price for such fertilizers to make a profit thereon (referred to as “profit margin”), which would eventually be paid to its patrons (members and non-members) by way of cash refunds and allocations to various reserve accounts held by it (Valeo) for operating capital.

At all times pertinent to this appeal, Val-eo served as a distributor of fertilizers for Miscoa. Gulf Coast, who purchased such products from Valeo, would pay Valeo for the Miscoa products invoiced to them and would then invoice its farmer-patrons, the ultimate consumer of the fertilizers, in accordance with the appropriate allocations. Valeo would pay Miscoa for all fertilizers shipped to it by Miscoa. In early May, 1972, Valeo commenced selling fertilizers to Gulf Coast as a non-member cooperative. The business continued until March 3,1975, when Valeo informed Gulf Coast that it would no longer furnish fertilizers to it; a settlement statement was furnished, which did not meet with Gulf Coast’s approval.

In Gulf Coast’s action for conversion of Series II and Series IV Miscoa stock, a recovery was sought as of the date of conversion of the market value of the stock. Gulf Coast asserted such value to be $175 per share for the Series II stock and $80.00 per share for the Series IV stock. It also sought recovery for the market value of the unused portion of its 1974-75 allocation.

The jury found:

(1) Gulf Coast obtained ownership in $5,491.03 Miscoa stock by virtue of the 1972-73 distribution of margins to it, and on March 3, 1975, Valeo converted the said stock (Special Issues 1 and 2);
(2) in December 'of 1973, Valeo sold to Gulf Coast $91,460.92 worth of Mis-coa stock, and on March 3, 1975, Val-eo converted the said stock (Special Issues 3 and 4);
(3) Valeo acted wrongfully on March 3, 1975, when it refused to sell Gulf Coast the remaining balance of fertilizer theretofore allocated to it for the year 1974-1975 (Special Issue 5);
(4) the market price per ton of nitrogen fertilizer between March 3, 1975, and June 30, 1975, was $163 (Special Issue 6);
(5) on March 3, 1975, Gulf Coast could not have purchased its unused allocation of dry-mixed fertilizer from another source at a price below its sale price (Special Issue 7);
(6) the value per ton to Gulf Coast of dry-mixed fertilizer on March 3, 1975, for bag-mixed was $170 and for mixed bulk was $165 (Special Issue 9).

Gulf Coast did not object to the charge. Valeo did so object, and included in its objections are complaints that there is no evidence to support the submission of Special Issues 1, 2, 3 and 4; that Special Issue 5 is confusing and ambiguous; that Special Issue 6 calls for a finding “that does not relate to any justiciable legal theory of damages by reason of limiting the asked for market price to that price below the sales price of Gulf Coast Farmers Cooperative”; and that Special Issue 9 calls for a conclusion from the jury. While Valeo also objected to the submission of Special Issue 7, the record does not reflect the ground on which such objection was based.

The judgment, in part, decreed:

“. . . the Plaintiff is entitled to recover the following:
$138,266.91, same being the value on March 3, 1975, of 1,819.3015 shares of Series IV Mixed Fertilizer Stock of Mississippi Chemical Corporation
$18,907.92, which is the difference between the market price per ton and the price Plaintiff would have had to pay the Defendant for the purchase of 393.915 tons of Nitrogen Fertilizer.
$3,060.00, being the difference in the price Plaintiff would have had to pay Defendant and the value of same as found by the jury for 90 tons of Mixed Bagged Dry Fertilizer.
$32,889.28, which is the difference in the price Plaintiff would have had to pay Defendant and the value of same found by the jury for 843.315 tons of Bulk Mixed Dry Fertilizer.
That part of Plaintiff’s Motion for judgment that seeks recovery for $529,951.80 is overruled .
******
Defendant’s Motion for Judgment Non Obstante Veredicto is sustained as it relates to the Series II nitrogen stock of Mississippi Chemical Corporation and said Motion for Judgment Non Obstante Ve-redicto in all other respects is in all things overruled.
It is therefore, ORDERED, ADJUDGED and DECREED that the Plaintiff,' GULF COAST FARMERS COOPERATIVE, recover of and from the Defendant, VALLEY CO-OP OIL MILL, the sum of $193,124.11 with interest on the sum of $138,266.91 at the rate of 6% per annum from March 3,1975 to September 1, 1975, and at the rate of 9% per annum until date of judgment and that interest at the rate of 9% per annum will run from the date of this judgment on all sums awarded Plaintiff herein.”

The judgment was signed on April 12, 1977.

Gulf Coast asserts on appeal that the trial court erred in sustaining Valeo’s motion for judgment non obstante veredicto, and denying recovery for conversion of Series II Miscoa stock for the reasons: 1) there was ample evidence to support the jury’s findings; 2) the trial court was without basis for treating Series II and Series IV stock differently and that in so doing the trial court made an erroneous bifurcation or partition of these same jury findings; and 3) the number of shares of Series II stock owned by it as well as the value thereof on the date of conversion was established by uncontroverted evidence and there was no necessity to submit such issues to the jury. Valeo contends that jury findings to Special Issues 1 to 4 are not supported by “legally” or “factually sufficient” evidence; that the answers to Issues 7 and 9 “cannot be supported by the evidence”; that the answers to Issues 1 to 4 do not support a judgment for recovery as to Series IV Miscoa stock; that the jury’s answer to Issue 6 amounted to a double recovery of damages; that the alleged conversion did not occur on March 3, 1975; and, if there was a conversion, it occurred in December, 1973, or no later than in May or June of 1974; and that the trial court erred in granting interest on $138,266.91 at the rate of 9% per annum from September 1, 1975 until date of judgment.

Gulf Coast and Valeo each pray that this Court affirm those portions of the judgment which are favorable to it and render judgment in its favor as to all- portions of the judgment that are unfavorable to it. In the alternative, each requests that- this Court sever the action, and affirm all portions of the judgment that are favorable to it and remand that portion of the case which resulted in an unfavorable judgment concerning the affected party to the trial court for a new trial.

There is a fundamental and primary dispute between Gulf Coast and Valeo as to what Gulf Coast got by virtue of its investment of $96,951.95 with Valeo. It is the contention of Gulf Coast that such, in effect, constituted an investment in cooperative stock of Miscoa, or in an equity in such stock equivalent to a given number of shares therein, which is determined by the allocation contained in the October 13, 1973 letter, hereinafter set out. Valeo contends that the investment constituted patronage credits or equities in the Valeo Cooperative, and nothing more.

On December 1, 1972, Valeo advised Gulf Coast in writing that its Board of Directors had authorized a distribution of margins to its customers for the fiscal year ending September 30, 1972, and that Gulf Coast was entitled to $1,530.40 as “an allocated equity” in Miscoa. Also, on September 19, 1973, Valeo sent Gulf Coast a letter which stated that its Board of Directors had authorized a distribution of margins to its customers resulting from distributors’ fees received from Miscoa based on fertilizer purchases, and that Gulf Coast had an “allocated equity” in Miscoa in the amount of $3,927.63, as a result thereof.

On October 15,1973, Mr. Walter Tanama-chi, division manager for Valeo, sent a letter to the several cooperatives (including Gulf Coast) that were then doing business with Valeo. The pertinent parts thereof read:

“There seems to be some confusion and a number of baseless rumors regarding our position on nitrogen fertilizer sales. For your information, on May 22, 1973, our Board of Directors authorized the purchase of an additional $288,000.00 in stock of Mississippi Chemical Corporation to obtain a quota equal to the quantity sold this year.
Regarding distribution of available supplies, we quote a verbatim an extract from the minutes of our Board Meeting of August 28, 1973:
‘Chairman Holcomb then reported that the committee had studied the problem of nitrogen fertilizer sales from every angle and had determined in view of a certain shortage that all nitrogen fertilizer sales be allocated to patrons on the basis of last year’s purchases.’ ”

On October 31, 1973, Valeo sent another letter to Gulf Coast and advised:

“As most of you already know Valeo Chemicals has agreed to buy $288,000.00 worth of Mississippi Chemical Corporation Nitrogen Stocks so that we could assure our customers the same amount of N-Sol-3 and Urea as they bought last year (from July 1 to June 30).
Yesterday our Board of Directors also agreed to buy an additional $117,000.00 worth of mixed grade fertilizer stocks which would enable us to buy 73% of our purchases last year. This means that for the period of July 1, 1973 to June 30, 1974, we will be guaranteed only 73% of the amount of mixed grade fertilizers that we bought from Mississippi Chemical during their last fiscal year. We are allocating to our dealers on the same

basis (73% of their dollar volume purchases) for the period of Miscoa’s next fiscal year.

Accordingly these are the allocations for your organization based on instructions from our Board of Directors:

In the fertilizer transactions, Valeo dealt with both its members and non-member patrons. The Board of Directors of Valeo determined that it was necessary to require non-members to make certain investments with it in order to equalize the investment requirements of both members and nonmembers, and, accordingly, voted to require an investment of $45.00 per ton for each ton of fertilizer allocated to non-members. On November 1, 1973, Tanamachi sent a letter to Gulf Coast advising it of the Board of Directors’ action. Tanamachi testified that payment of the required investment would give each non-member a guaranteed allocation of fertilizer, the result of which was to “treat everybody alike”. The offering of $45.00 a ton for fertilizer, was later revised, apparently because Miscoa objected to Val-eo’s requirement of an investment in excess of the price of the fertilizer. The Board of Directors for Valeo met again on November 27, 1973, and passed a resolution which required “an investment of $32.00 for each ton of nitrogen fertilizer allocated and an investment of $20.00 for each $62.50 worth of mixed grade fertilizer allocated.” Tana-machi then prepared and sent a letter to Gulf Coast, dated November 30,1973, advising it of the Board of Directors’ action pertaining to the revised required investment, and further stated therein:

* * * * * *
“The nitrogen and mixed grade fertilizer stocks will be purchased from Mississippi Chemical Corporation by Valley Co-op Oil Mill. You will be issued a letter of equity in our organization for the stock equity we hold on the same basis and cost that we are purchasing this stock provided you exercise your option to take your fertilizer allocations.”
******

On December 13, 1973, Valeo sent a letter to Gulf Coast, stating therein:

* * * * * *
“SUBJECT: Fertilizer Allocations for 1973-74 — please refer to our letters to you dated November 1 and November 30, 1973.
When you exercise this option to purchase equity in Mississippi Chemical Corporation stocks held by Valley Co-op Oil Mill, you are not only assuring your self of that amount of fertilizer for this season, but for every year in the future that you retain this equity. We anticipate several years of severe shortages in fertilizer materials and we can reasonably expect this investment to pay for itself in 3 years or less besides assuring you of a supply of fertilizers in the future.
We must have a committment (sic) from you prior to December 31, 1973, so that our fertilizer allocations may be finalized. If you do not choose to exercise this option then we will have to allocate your fertilizer to our equity holders since this stock has already been bought by Valley Co-op Oil Mill.”

Gulf Coast, by letter dated December 14, 1973, advised Valeo:

“SUBJECT: PURCHASE OP EQUITY IN MISSISSIPPI CHEMICAL CORPORATION STOCKS. REFERENCE: VALCO LETTERS DATED OCTOBER 31, NOVEMBER 30, AND DECEMBER 13,1973.
Enclosed is a check in the amount of $91,460.92 for the purchase of Mississippi Chemical Corporation nitrogen and mixed fertilizer stock. This stock is to be held in escrow by Valeo Chemical Division for Gulf Coast Farmers Cooperative.
Our allocation as stated in your letter of October 31, 1973 is for 1892.685 tons of dry nitrogen and N-Sol-32 and for $113,-706.35 worth of dry mixed grade fertilizers.
Valeo Chemical Division presently holds $5,491.03 worth of Mississippi Chemical Corporation stock in escrow for Gulf Coast Farmers Cooperative. This $5,491.03 plus the enclosed check for $91,-460.92 brings our total investment to $96,951.95 which covers our Mississippi Chemical fertilizer allocation for 1973-74.”

The check for $91,460.92 was cashed by Valeo, and on December 27, 1973, Valeo wrote Gulf Coast and stated:

“This will acknowledge receipt of your check in the amount of $91,460.92 for the purchase of stock in Valley Co-op Oil Mill (Agricultural Chemicals Division) and this letter is evidence of an allocated equity in same, which has already been purchased from Mississippi Chemical Company by Valley Co-op Oil Mill for the Chemical Division’s patrons.”

On June 25,1974, Miscoa, in a letter to its stockholders advised:

# * ⅜{ * % *
“1) Since fertilizer is obviously going to be short during the 1974-75 fiscal year, all products will be on strict allocation from Mississippi Chemical. Allocation on stock owned is as follows:

Valeo received a copy of the letter. Valeo then issued a written allocation to Gulf Coast covering Miscoa’s fiscal year, July 1, 1974 to June 30, 1975, as follows:

“Listed below is your 1974-1975 fertilizer allocation from Mississippi Chemical Corporation:

By letter dated May 25, 1973, Valeo advised Miscoa that its Board of Directors “voted to pledge our purchase of $288,-000.00 in Nitrogen Series II Capital Stock in Mississippi Chemical Corporation”. A check for that amount of money was subsequently sent to Miscoa. In answer to that letter, Miscoa, on May 29, 1973, wrote Valeo and stated:

“Thank you very much for your letter of May 25 certifying the commitment of your Board of Directors to purchase $288,000 Series II Mississippi Chemical Corporation stock prior to June 30, 1974. As a result of this action we will set aside this amount of stock out of our current registration to fulfil (sic) the commitment.
The purchase of this additional stock will give you a total allocation of nitrogen products for fiscal 1973-74 as follows:
Allocation on stock presently owned: 2,813 tons
Allocation of other stockholders assigned to your distributorship: 34
Allocation on $288,000 stock to be purchased: 9.000
Total allocation for fiscal 1973-74: 11,847 tons”

On November 19, 1973, Valeo, in a letter to Miscoa said:

“. . . I am pleased to return our check payable to Miscoa in the amount of $117,000.00 for the purpose outlined on the vouchers.”

The “voucher”, referred to in the letter, was not introduced in evidence.

By a letter dated December 11, 1973, Miscoa advised Valeo:

“We have deposited Valeo’s check for the purchase of $117,000 additional Series IV stock, and the stock certificate will be mailed sometime later this month or possibly early January. Fertilizer may be purchased against this additional allocation prior to the actual issuance of the stock certificate.
Also, we will continue to make nitrogen shipments against the allocation on the $288,000 Series II stock which Valeo has committed to purchase.”

The Board of Directors for Valeo met on October 30, 1973 and approved purchase of an “additional $117,000 in stock in Mississippi Chemical Corporation in order to obtain the maximum allotment of fertilizer.” A field representative of Miscoa was called into the meeting “to outline in detail current and proposed stock ownership” by Val-eo and the minutes of that meeting reflect that he gave a “detailed analysis”. The “detailed analysis” or substance thereof was not introduced into evidence.

On August 21, 1974, Valeo sent Gulf Coast a distribution letter, for the Miscoa fiscal year ending June 30, 1974. A check accompanied the letter in the amount of $33,752.59 which covered cash distributions by Miscoa as a “100% Mississippi Chem. rebate $22,822.51”, and a “30% Chem. Div. margins $10,930.08”, constituting a cash distribution of the profits of Valeo for that period of time. Pertaining to “allocated equities” in the Chemicals Division, the letter stated as follows:

* * * ⅜ * *
“The following distribution is made as allocated equities in the Chemicals Division:
Reserve for Contingencies $ 4,512.32
Allocated Equity Miss. Chem. $_
Revolving Equity Chem. Div. $20.038.49
Total Distribution including cash $58,303.40”
* * * * * *

This was the first instance where “Reserve for Contingencies” and “Revolving Equity Chemical Division” accounts had been used.

On March 3, 1975, Valeo sent Gulf Coast a letter informing it that Valeo could no longer sell agricultural chemicals and fértil-izers to Gulf Coast. The letter, in part, stated:

******
“There is currently due $37,404.02 on your account for past fertilizer deliveries, including $552.77 service charge for the month of February. Your firm has Equity Reserve Account balances as follows:
Reserve for contingencies $ 4,512.32
Revolving allocated Equity 25,529.52
Fertilizer Cash Equity Reserve 91,460.92
Total Allocated Equitites $121,502.76
Your current account payable is 60 days past due and under our credit agreement is in excess of credit allowance. Because of this we must set off against this current account payable $37,404.02, which amount is drawn from your Special Fertilizer Cash Equity Reserve of $91,460.92, which leaves a balance in this Special Fertilizer Cash Equity Reserve of $54,-056.90. The balances in the Reserve for Contingencies Account and Revolving Allocated Equity account are distributable as those funds revolve out in date order, as required by the By-Laws of the Cooperative. As these funds are revolved out of such reserves, they will be distributed to your firm, after setting off against any current account balance due us, depending upon whether there is any current account balance due us at that time.”
******

The minutes of the regular meeting of the Valeo Board of Directors on March 25, 1975, reflect that the Board passed a motion to purchase from Miscoa 1,890.151 shares of Series II Stock at a cost of $100 per share, for a total of $189,010.08, covering Ammonium Nitrate and N-Sol-32 only; plus 2,429.911 shares of Series IV Stock at a cost of $75.00 per share, for a total of $182,-220.56, covering Dry Mixed fertilizers; the total amount of the investment in two classes of stock purchased amounted to $371,230.64.

In a June 24, 1975 stockholders’ meeting the names of several accounts were formally changed: 1) “allocated equity — MIS-COA” account was changed to “Fertilizer Allotment Reserve” 2) “Allocated Equity” account was changed to “Revolving Equity” account.

Valeo informed Gulf Coast by letter dated August 26,1975, that the Valeo Board of Directors had authorized a distribution of margins for the Valeo fiscal year ending May 31, 1975. The allocation was as follows:

On July 27, 1976, Valeo made another allocation to Gulf Coast of margins of $32,-815.28, composed of $22,629.39 cash and $10,185.89 distribution to “Allocated Capital Equity MISCOA”.

The parties stipulated that had Mr. R. Douglas Hall of Miscoa, director of field services, testified, he would have done so according to the contents of a letter prepared by him dated May 19, 1976, wherein he stated:

“I received a request today from one of your customers and stockholders asking for a record of the trading price of MCC Series II and Series IV stock on March 3, 1975, and April 1, 1975.
There were no transactions recorded on those specific dates; therefore, I am listing below the last transaction prior to the dates and the first transaction following the dates requested:

There is a dispute between the parties as to whether the letters exchanged between them formed a contract. To form such a contract the offer must be clear and definite just as there must be a clear and definite acceptance of all terms contained in the offer. A court, in deciding whether a contract was made, should determine from the facts that all essential terms thereof have been met. See Patton v. Rucker, 29 Tex. 402 (1867); Ray v. Blue, 173 S.W.2d 258 (Tex.Civ.App.—Eastland 1943, writ ref’d w. o. m.); 13 Tex.Jur.2d, Contracts § 27 (1960). The writings or instruments referred to in the letters which are claimed to constitute a contract will be construed as being part of the contract if it is determined by the court that a contract was made by such letters. Board of Ins. Com’rs v. Great Southern Life Ins. Co., 150 Tex. 258, 239 S.W.2d 803 (1951); Davis v. Volunteer State Life Ins. Co., 135 S.W.2d 588 (Tex.Civ.App.—Texarkana 1939, writ ref’d); Page Airways, Inc. v. Associated Radio Serv. Co., 545 S.W.2d 184 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.). The court, in ascertaining the true intention of the parties to a contract that is susceptible of more than one interpretation, must consider the subject matter of the contract and the surrounding circumstances existing when the contract was executed. Lone Star Gas Co. v. X-ray Gas Co., 139 Tex. 546, 164 S.W.2d 504, 508 (1942); Ward v. Christopherson, 518 S.W.2d 273, 277 (Tex.Civ.App.—Waco 1975, writ ref’d n. r. e.).

The letters between Gulf Coast and Val-eo, above quoted, do not make it certain that Gulf Coast acquired “stock” in Miscoa, or that Gulf Coast acquired an equity in Valeo. Neither party attempted to clear up the confusion which was created by the use of loose language in the letters and neither sought to have the other clarify what was meant by the language used in the particular letters.

Except for the execution of the contract, dated May 9, 1972, by and between Miscoa, Valeo, and Gulf Coast, there is no evidence of any dealings directly between Miscoa, the “Company”, and Gulf Coast, the “Agent”. There is no evidence that Miscoa or Valeo issued any certificates of stock of any nature to Gulf Coast. There is some evidence, as reflected by the several letters exchanged between Miscoa and Valeo concerning Valeo’s checks for $288,000.00 and $117,000.00, respectively, which will support an inference that Valeo was the holder of a certificate of Miscoa Series IV stock. However, there is no evidence that a certificate was ever issued to Valeo for Series II stock, although there is evidence which will support an inference that Valeo, by the payment of $288,000.00 to Miscoa, expected that such a certificate would be issued. Also, there is considerable dispute in the record concerning whether or not the parties, by the investment by Gulf Coast of margins ($5,491.03) and the cash ($91,-460.92) with Valeo, intended the investment to be a purchase of Series II and Series IV classes of Stock in Miscoa, or whether it was simply a purchase of equity in Valeo for whatever that would mean or be.

Valeo’s November 30 letter, clearly contemplated that upon Gulf Coast’s exercise of the option “to take your fertilizer allocation”, it would be issued a letter of equity in Valeo. The December 13 letter from Valeo indicated that the option was to purchase equity in Miscoa. Gulf Coast’s December 14 letter, which enclosed the $91,-460.92 check, stated that the check was for the purchase of Miscoa Series II and Series IV stock. The letter from Valeo, dated December 27, acknowledged receipt of the cheek for the purchase of stock in Valeo. The problem presented, i. e., did the letters constitute a contract whereby there was an agreement for Gulf Coast to acquire both Series II and Series IV Miscoa stock, or whether the agreement simply permitted Gulf Coast to acquire an equity in Valeo, was never clearly resolved.

Mr. W. S. Pawlik and Mr. D. Stockton, officers of Gulf Coast, maintained that they understood from dealings with Tanamachi and others at Valeo that Gulf Coast was getting Miscoa stock from Valeo which had been issued to Valeo by Miscoa. Pawlik stated that prior to delivery of the check to Valeo, Tanamachi had told him that Gulf Coast would be buying Miscoa stock. Tana-machi disputed Pawlik’s testimony and further testified that at field meetings, at which Pawlik and Stockton were present, it was made clear that the sole purpose of the Gulf Coast’s investment was to secure an allocation of fertilizer, and it was understood that the investment would constitute an equity in Valeo. Skinner, a field man for Valeo in late 1973, testified that the investment was to secure an allocation of fertilizer, which would be distributed to farmers (patrons of Gulf Coast) through Gulf Coast, and that when Gulf Coast ceased to buy from Valeo, the investment would be returned to Gulf Coast. Skinner also testified that while the investment in Valeo was often the subject of conversation, at no time was it suggested that Miscoa stock was being issued to non-member patrons, such as Gulf Coast. Testimony of Daniel Macomb, another field man for Val-eo, essentially supported that of Skinner and Tanamachi.

Inquiries were made of the jury as to whether Gulf Coast acquired $5,491.03 worth of Miscoa stock by virtue of the 1972 and 1973 distributions (Special Issue 1); whether Valeo sold Gulf Coast $91,460.92 worth of Miscoa stock (Special Issue 3); and whether all of such stock was converted by Valeo on March 3, 1975 (Special Issues 2 and 4). The issues were general in nature and did not differentiate between Series II and Series IV stock. The jury, in answering Special Issues 1 and 3, were required to find that Gulf Coast either acquired ownership of both Series II and Series IV or that Gulf Coast did not acquire ownership of any stock in either Series II or Series IV. Concerning Special Issues 2 and 4 (the inquiries on conversion), the jury was required to find that Valeo converted both Series or that it did not convert either of the Series. All of the monies evidenced by both the distribution of “margins” and the “check” were required in order to obtain allocations for both Mixed Grade Fertilizer (Series IV) and Nitrogen Fertilizer (Series II).

The evidence relating to whether or not" Gulf Coast, by the “margins” of $5,491.03 and the “check” for $91,460.92, acquired ownership of Series II and Series IV Miscoa stock is so interrelated, and interwoven as to be impossible to separate the evidence which pertains solely to Series IV. The same evidence relating to the claimed purchase and conversion of Series II applies with equal force with respect to Series IV. There is no evidence which deals exclusively with one series to the exclusion of the other. The only difference as to what was actually acquired by Gulf Coast in making the investment is that in setting forth the allocation for each of the Series, the Mixed Grade fertilizer, representing Series IV stock allocation was expressed in dollars, while the Nitrogen fertilizer, representing Series II stock allocation, was expressed in tons.

The judgment permitted a recovery for conversion of Series IV stock (Mixed Grade fertilizer) and denied a recovery for conversion of Series II stock (Nitrogen fertilizer). The trial court, in rendering judgment, concluded that Gulf Coast was entitled to judgment on the verdict with respect to Series IV stock, but that as a matter of law it did not acquire ownership of any Series II stock. Apparently, this determination was due to the interpretation placed on the contents of the letters exchanged between Val-eo and Miscoa during the period May 25, 1973 to December 11, 1973, above noted. As stated, those letters authorize an inference that Valeo did actually receive a certificate for Miscoa Series IV stock, but do not support such an inference as to Series II stock.

Under the evidence and all permissible inferences, if Gulf Coast acquired ownership of Series II stock, then it also acquired ownership of Series IV stock, and vice ver-sa. The same holds true with reference to the issue of conversion. The money damages for the conversion of Series II Nitrogen stock, if converted, were just as susceptible to calculation as were the money damages for the conversion of Series IV stock, if converted. While the Series II allocation was made in tons, it was purchased with dollars and was sometimes referred to as a purchase of “equity” or “stocks” in Miscoa, and sometimes referred to as “equity” in Valeo. Both allocations in Mixed Grade fertilizer and Nitrogen fertilizer were secured by investment of two lump sums of dollars. In short, under the facts and circumstances of this case, we find no basis for distinguishing between Series IV and Series II stock, such that ownership by Gulf Coast in Series IV may be decreed but not ownership in Series II, and that recovery may be allowed for conversion of Series IV, but not of Series II.

We agree with Gulf Coast that the trial court erred in rendering judgment non obstante veredicto with respect to Series II stock, because there was some evidence that Gulf Coast owned shares in Series II stock, and that such stock was converted by Valeo. We further agree with Gulf Coast that the judgment, in effect, amounted to “an erroneous bifurcation” of the jury findings. Gulf Coast’s points 1 and 2 are sustained.

We do not agree that ownership of Series II Miscoa stock by Gulf Coast was established as a matter of law by the un-controverted evidence; nor do we agree that such ownership of Series II Miscoa stock was conclusively determined. Issues of fact are presented. We do not agree that the value of Series II Miscoa stock on March 3, 1975 was established as a matter of law by the uncontroverted evidence. Assuming, arguendo, that Gulf Coast did own shares in Miscoa Series II “stock”, and that Valeo did convert the “stock”, there is an issue of fact with respect to whether it was converted on March 3, 1975, and also an issue of fact as to the value of Series II stock on that date. While it was stipulated that a Miscoa representative, if called as a witness, would testify that the “trading price” of Series II stock at the time in question was $175.00 per share, the evidence also shows that Valeo was able to purchase Series II stock sometime in March, 1975 at only $100.00 per share. It is not conclusively shown that Valeo was able to purchase the Series II stock on the basis of its preferential status. The issue was not submitted to the jury. The trial court did not make a finding on the issue of damages relating to Series II stock since it denied recovery for that particular series of stock. Gulf Coast’s point 3 is overruled.

We now consider Valeo’s complaints. After reviewing the evidence in its entirety, and applying the well settled rules concerning “no evidence” and “factually insufficient evidence points” to the record here presented, we hold that there is some evidence that Valeo agreed to sell and distribute stock in Miscoa to Gulf Coast and that Valeo converted the stock on March 3,1975. However, we further hold that the evidence is factually insufficient to show any agreement whereby Valeo agreed to sell Gulf Coast any stock in Miscoa, either Series II or Series IV, or both, or that such stock (Series II and IV) was converted by Valeo on March 3, 1975. Valeo’s no evidence points directed at the jury’s answers to Special Issues 1, 2, 3 and 4 are overruled; but its factually insufficient evidence points with respect to those Issues are sustained.

We now consider whether or not there was a breach of contract as a result of Valeo’s refusal to sell certain quantities of fertilizer to Gulf Coast subsequent to March 3, 1975. Gulf Coast contends that its unused portion of the fertilizer allocation for Miscoa fiscal year (July 1, 1974 to June 30, 1975), on March 3,1975, consisted of 393.915 tons of Nitrogen fertilizer, 90 tons of Mixed Bag Dry fertilizer and 843.315 tons of Bulk Mixed Dry fertilizer. Valeo disputes that claim. It asserts that, the jury’s finding (Special Issue 5) that it (Valeo) “acted wrongfully on March 3, 1975” when it refused to sell Gulf Coast the remaining balance of fertilizer theretofore allocated to it for the fiscal year 1974-1975, was not supported by legally or factually sufficient evidence.

Valeo claims that exemptive tax-status was impliedly required of Gulf Coast, and that it was entitled to terminate the contract whenever it discovered that Gulf Coast had breached that implied condition. In its dealings with all cooperatives, Valeo relied on assurances from each that the particular cooperative was indeed tax-exempt. On October 4, 1972, the Internal Revenue Service (IRS) notified Gulf Coast in writing that since it failed to treat members and non-members alike pertaining to patronage dividends, it could not be treated as a tax-exempt cooperative. Although repeated demands were made by Valeo that Gulf Coast furnish it with a tax-exempt letter from the IRS, that was not done until July, 1974, as hereinafter detailed. However from early May, 1972, until the date such IRS letter was furnished, Valeo did business with Gulf Coast, as Tanamachi explained, because of the assurance by Gulf Coast that it was, in fact, tax-exempt.

In July, 1974, Valeo wrote Gulf Coast and insisted on a tax-exempt letter “to justify” continued business with Gulf Coast. Valeo was then withholding Gulf Coast’s allocation until it met the requirements imposed on all other cooperatives, which, apparently, was merely a tax-exempt letter from the IRS. Such a letter from the IRS, dated July 24, 1974, but effective June 18, 1974, was finally received by Gulf Coast and a copy thereof was delivered to Valeo. Evidently, Valeo was not satisfied that Gulf Coast was entitled to tax-exempt status. Several meetings were held between representatives of the two cooperatives whereby Valeo questioned the tax-exempt status of Gulf Coast. At some time between the date Valeo received a copy of Gulf Coast’s tax-exempt letter and October 26, 1974, Valeo conducted its own audit of Gulf Coast’s business, activities and operations, and as a result of its personal audit, it unilaterally determined that Gulf Coast was not operating as a tax-exempt cooperative. There is no evidence that any other cooperative was audited as such by Valeo; or that Valeo required anything of the other cooperatives with which it was doing business other than a tax-exempt letter from IRS.

Valeo asserts that there is no evidence that it agreed to continue selling fertilizer to Gulf Coast through June 30, 1975; and, that the most that is exhibited by the record is a terminable open offer whereby each purchase by Gulf Coast was a separate transaction representing an acceptance by Gulf Coast of Valeo’s offer to sell the particular fertilizer involved in that separate transaction. We do not agree. The business arrangement between Valeo and Gulf Coast including price and terms of allocation, accounting, and the like, were tied into Miscoa’s fiscal year (July 1 to June 30). Prior to March 3, 1975, there was no mention of separate purchases; on the contrary, the transaction as a whole was envisioned on a yearly basis. The Valeo Board of Directors, in October, 1973, determined that nitrogen fertilizer sales should be allocated to patrons on the basis of “last year’s purchases” and that its customers (like Gulf Coast) would receive allocation on the same basis “for the period of Miscoa’s next fiscal year”.

Allocations were made on a yearly basis, as were the follow-up distribution letters. In the December 13, 1973 letter to Gulf Coast, Tanamachi stated that Gulf Coast, by making the required investment, was not only assuring itself of the amount of fertilizer for 1972-73 Miscoa fiscal year, but “for every year” in the future that Gulf Coast retained the equity. Valeo admitted that Gulf Coast owned the equity until March 3, 1975. Again, in a letter dated July 25,1974, Tanamachi stated that Gulf Coast’s “allocation” would be “released” only when a certain requirement was met. That requirement, a tax-exempt letter, was met.

The fact that the delivery and payment for fertilizers may have taken place on a per delivery basis is not controlling since it appears that the parties understood the relationship to be on a yearly basis. It also appears from the record that the parties, in making a yearly allocation of fertilizers, were following general custom of the fertilizer business. See 13 Tex.Jur.2d, Contracts, § 129 p. 303 (1960). Valeo’s unilateral repudiation of the contract was without contractual or conditional basis and therefore constituted a breach of the agreement between the parties. Pollack v. Pollack, 39 S.W.2d 853, 855 (Tex.Comm’n App.1931, holding adopted); Abrams v. Brent, 362 S.W.2d 155, 159 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.). We hold that Gulf Coast and Valeo, as evidenced by the aforesaid letters exchanged between them, entered into a valid contract whereby Gulf Coast, upon making the required payment in money to Valeo, acquired an absolute right to purchase a set amount of Miscoa fertilizer from Valeo, which right could not be terminated in the manner attempted by Valeo. We also hold there is ample evidence of probative value to support the jury finding that Valeo wrongfully refused to sell Gulf Coast the unused portion of fertilizers for the period in question. Valeo’s points 5 and 6 are overruled.

Valeo further asserts that the trial court’s award of damages for breach of contract in addition to the award in connection with the Series IV Dry Mixed fertilizer stock amounts to a double recovery of damages. This point is without merit. Gulf Coast has sought recovery for a required investment, part of which it claims was used for the purchase of Series IV Miscoa stock. In addition, it sought recovery, as a separate cause of action, for breach of contract for failure to deliver the allocation of fertilizer for the year 1974-75. We find no indication of an agreement that the required investment was to be used as liquidated damages, nor do we find an agreement that the unused portion of a yearly fertilizer allocation was to be equated with the required investment. Recovery for both would not amount to a double recovery. Young v. Hicks, 559 S.W.2d 343, 344 (Tex.Sup.1977); Great American Reserve Insurance Company v. Britton, 406 S.W.2d 901, 907 (Tex.Sup.1966). Valeo’s point 8 is overruled.

Valeo’s point 7 pertaining to the error of the trial court in allowing interest on $138,-266.91 at the rate of 9% per annum from September 1, 1975, until date of judgment is sustained.

In view of our disposition of this appeal, it is not necessary for us to consider Valeo’s remaining points.

The action for damages because of Val-eo’s breach of contract is severed from the action for damages because of the alleged conversion of Miscoa stock. That portion of the judgment which decreed that Gulf Coast recover from Valeo the sums of $18,-907.92, $3,060.00 and $32,889.28, totalling $54,857.20, as damages for Valeo’s refusal to sell to Gulf Coast the unused portion of the fertilizer allocated to it for the period July 1,1974 to July 30,1975 (Miscoa’s fiscal year), together with interest thereon at the rate of 9% per annum from April 12, 1977 (the date judgment was signed) until paid, is affirmed.

That portion of the judgment whereby it was decreed that Gulf Coast recover $138,-266.91 of and from Valeo for conversion of the Series IV Mixed Fertilizer stock of Mis-coa, is reversed, and that portion of the judgment which sustained Valeo’s motion for judgment non obstante veredicto insofar as it relates to conversion of Series II Nitrogen stock is also reversed; and, both actions for alleged conversion of stock are remanded to the trial court for a new trial.

Costs of this appeal are assessed 50% to Gulf Coast and 50% to Valeo.

AFFIRMED IN PART and REVERSED and REMANDED IN PART.