author: CLINTON, Judge.

text:
    Robert Michael DARLAND, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57521, 57522.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 20, 1979.
    Philip S. Green, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann, and Frank Harmon, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from two convictions for involuntary manslaughter. The jury assessed appellant’s punishment in each case at three years confinement.

While driving Interstate Highway 610 in Houston on September 25, 1976 at approximately 12:30 a. m., Kelly Bitner and his fiancee observed appellant’s then new 1977 black truck pass them headed south. The couple lost sight of the truck at the San Felipe overpass, but on coming over a rise they saw sparks at the far right side of the highway, and then observed appellant’s truck careening across the freeway toward the left guard rail. An old pickup truck which had apparently been parked on the shoulder of the road because of a flat tire, rested off the right shoulder in the grass in a position 180 degrees from the way it had been parked on the shoulder. Two people were killed as a result.

Appellant’s three grounds of error attack the admission of the results of an analysis made of his urine, a sample of which was obtained without appellant’s consent a few hours after the collision.

Outside the presence of the jury, the following testimony was developed: Officer K. D. McGinn, a Houston Police Department accident investigator, obtained information at the collision scene which led him to seek appellant who had been taken to Ben Taub Hospital. On confronting appellant McGinn asked what had happened. Appellant replied, “I don’t know what happened. I don’t even know what I hit.” McGinn testified that he could smell a strong odor of alcohol on appellant; from this, coupled with observations of appellant’s walk, slurred speech and inability to sign his name on a consent to treatment form, McGinn formed an opinion that appellant was intoxicated.

McGinn talked with appellant as he lay on a stretcher; appellant said he needed to go to the restroom. McGinn checked with the nurse in charge who said appellant could do so, and McGinn obtained a styro-foam cup from the nurse as appellant got down from the stretcher. McGinn accompanied appellant into the restroom; after appellant had begun to urinate, McGinn placed the styrofoam cup in front of appellant so as to collect a specimen of urine. According to McGinn, appellant was aware of what the officer was doing and neither affirmatively consented nor objected in any way.

McGinn then left the hospital in order to deliver the specimen to the Houston Police Department where he left it in a crime lab lock box. Approximately 2½ hours later McGinn and another officer returned to Ben Taub Hospital in order to place appellant under arrest and confine him in the county jail.

After the trial court ruled McGinn’s testimony admissible and it was elicited before the jury, the State called a police department chemist and toxicologist who testified that analysis of appellant’s urine revealed a .15% blood alcohol content.

Appellant now specifically complains that “seizure” of the urine sample from him was without consent, and because he was under arrest at the time of the non-consensual “seizure,” Art. 67017 -5, Section 1, V.A. C.S. prohibited the admission into evidence of the results of the analysis.

Appellant correctly states that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and this Court’s opinion on rehearing in Olson v. State, 484 S.W.2d 756 (Tex.Cr.App.1972), “have removed the constitutional impediment of consent as to the taking of a blood test or other chemical tests;” however, “this does not obviate the necessity of compliance with statutory provisions, even though statutory requirements may not now be constitutionally required.” Olson, at 772.

Our statutory prohibition against admission of non-consensual chemical analysis for blood alcohol content other than by breath analysis, has been held “by its explicit terms [to apply] only to persons who have been arrested.” Bennett v. State, 522 S.W.2d 507, 509 (Tex.Cr.App.1975). Therefore, the dispositive issue presented by this ground is whether appellant was under arrest at the time Officer McGinn obtained the specimen of his urine.

Appellant urges that the surrounding facts and circumstances illustrate that he was restrained in his liberty of movement at the hospital, and therefore, an arrest had been effected notwithstanding the fact that appellant was not actually taken into custody. There is, however, nothing in the record before us which supports this assertion.

Officer McGinn testified that he neither restrained appellant in any way, nor instructed any other officer to guard appellant during McGinn’s 2½ hour absence from the hospital. According to McGinn, no one would have stopped appellant had he attempted to leave at anytime before he was taken physically into police custody. McGinn testified that he did nothing to compel the collection of the sample of appellant’s urine. Appellant testified on cross-examination that the first time he saw McGinn was when he and Officer D. H. Mays took appellant into custody at approximately 4:30 a. m. Appellant denied that McGinn had earlier questioned him about what had happened at the scene of the collision, and further denied that McGinn had either accompanied him to the restroom or obtained any of his urine.

Under this state of facts, we hold that appellant was not under arrest, and evidence of the chemical analysis of the urine McGinn obtained without affirmative consent from appellant was admissible. Bennett, supra. This ground of error is overruled.

Appellant next contends that securing a urine sample from him without his consent constituted an unreasonable seizure under the Fourth Amendment to the United States Constitution. The thrust of appellant’s complaint is that Officer McGinn’s actions were “unreasonable” under the circumstances in that the urine sample was not “taken by a physician in a hospital environment according to accepted medical practices” as blood had been extracted in Schmerber, supra, and thereafter approved by the Supreme Court. While appellant concedes that McGinn’s actions did not involve an intrusion into his body, he nevertheless contends that they “did involve a collection of appellant’s body fluids, which is arguably an extension of his body.” Appellant further urges that “appellant’s sanctity as a human being was violated by the search and seizure method which Officer McGinn utilized, [because] appellant never consented;” and finally, “appellant’s constitutional right of privacy was violated by this unreasonable, involuntary seizure of his urine . . . where there were no extreme circumstances to warrant the intrusion.”

A thorough review of the record before us reveals no written motion to suppress challenging the seizure of the urine on the ground now urged; nor did appellant offer any objection to the evidence based on a Fourth Amendment breach at either the time the State offered McGinn’s testimony or the expert testimony concerning the analysis of the urine sample. Because a primary purpose of requiring timely specific objections is to apprise the trial court of a party’s complaint and thereby afford the judge an opportunity to rule, it is elementary that only those grounds which have been urged in the court below may be presented to this Court for appellate review. Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976). Appellant’s failure to raise his Fourth Amendment claim at trial constitutes a waiver of that complaint. Writt v. State, 541 S.W.2d 424 (Tex.Cr.App. 1976); Connally v. State, 492 S.W.2d 578 (Tex.Cr.App.1973).

Notwithstanding such waiver the record as a whole contradicts appellant’s complaint that he was the victim of an invasion of privacy, establishment of which is a prerequisite to contest of the validity of a search and seizure. Kleasen v. State, 560 S.W.2d 938 (Tex.Cr.App.1978); see also, Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).

The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. [Emphasis supplied] Alderman, 394 U.S. at 171, 172, 89 S.Ct. at 965.

In addition to appellant’s failure to make affirmative complaint of his subjection to an unreasonable search and seizure at trial, appellant’s direct testimony was that McGinn neither accompanied him to the restroom nor procured any of his urine; restated, appellant denied that a search of his person or a seizure of his “body fluid” ever occurred.

Clearly, alleged injury incident to a search and seizure necessarily assumes that a search and seizure was conducted. Cf. Warren v. State, 565 S.W.2d 931 (Tex.Cr.App.1978) [wherein the rationale for denying the defense of entrapment to one who denies commission of the offense involved is stated as being that the defense of entrapment necessarily assumes that the act charged was committed]. Appellant has accordingly failed to establish resultant injury to himself which would preclude the introduction of testimony against him gained as a result of the seizure he attacks on appeal. Cf. Hensley v. State, 494 S.W.2d 816 (Tex.Cr.App.1973). Appellant’s second ground of error is without merit.

Lastly, appellant contends that the non-consensual seizure of the urine sample from him was so offensive as to “shock the conscience” and thus constituted a denial of due process of law.

Again, notwithstanding appellant’s failure to apprise the trial court on this ground of complaint, we will address it in the interest of justice. See Art. 40.09, Section 13, V.A.C.C.P.

Appellant relies on Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) for advancement of the proposition that the police procedures employed to obtain a sample of his urine were “so brutal and offensive” as to violate due process. This contention is without merit.

In Rochin, supra, police officers unlawfully entered the defendant’s home and bedroom, and saw capsules on the nightstand, at which time the defendant put the capsules in his mouth. The officers jumped on him and unsuccessfully attempted to extricate the capsules. The defendant was then handcuffed, taken to a hospital and forcibly given an emetic which caused vomiting and ultimately allowed the recovery of morphine capsules. The Supreme Court stated that this procedure shocked the conscience, offended “even hardened sensibilities,” and that such a method was “too close to the rack and the screw to permit constitutional differentiation.” 342 U.S. at 172, 72 S.Ct. at 210.

By contrast, the court held in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), that no due process right had been abridged by the extraction of a sample of a suspect’s blood by an attending physician at the request of an officer while the motorist lay unconscious in the hospital. The absence of conscious consent, without more, was held not to necessarily render the taking a violation of a constitutional right.

[D]ue process is not measured by the yardstick of personal reaction or the sphygmogram of the most sensitive person, but by that whole community sense of ‘decency and fairness’ that has been woven by common experience into the fabric of acceptable conduct.

352 U.S. at 436, 77 S.Ct. at 410.

It is immediately apparent that the intrusion by the State involved in the procedure employed in Breithaupt, supra, was greater than the intrusion, if any, made on appellant as established by the testimony of Officer McGinn. We think the chasmal distinction between the “brutal” procedure utilized in Rochin, supra, and the procedure applied in the instant case, speaks for itself. Appellant’s three grounds of error are overruled.

The judgments of conviction are affirmed.

      . Section 19.05, V.T.C.A., Penal Code provides:
      (a) A person commits an offense if he:
      ******
      (2) by accident or mistake when operating a motor vehicle while intoxicated and, by reason of such intoxication, causes the death of an individual.
      (b) For purposes of this section, “intoxication” means that the actor does not have the normal use of his mental or physical faculties by reason of the voluntary introduction of any substance into his body.
      (c) An offense under this section is a felony of the third degree.

      . Article 6701/-5, Section 3, V.A.C.S. provides in germane part:
      “(a) Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a motor vehicle and while under the influence of intoxicating liquor, evidence of the amount of alcohol in the person’s blood, breath, urine, or any other bodily substance, shall be admissible and if there was at that tíme 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor.” [Emphasis supplied.]
      The trial court submitted a jury instruction to this effect.

      .Article 670U-5, Section 1, V.A.C.S. provides:
      Any person who operates a motor vehicle upon the public highways of this State shall be deemed to have given consent, subject to the provisions of this Act, to a chemical test, or tests, of his breath for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while a person was driving or in actual physical control of a motor vehicle while under the .influence of intoxicating liquor. Any person so arrested may consent to the taking of any other type of chemical test, or tests, to determine the alcoholic content of his blood, but he shall not be deemed, solely on the basis of his operation of a motor vehicle upon the public highways of this State, to have given consent to any type of chemical test, or tests, other than a chemical test, or tests, of his breath. The test, or tests, shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor.

      . Schmerber held that blood test evidence, although an incriminating product of compulsion, is neither testimonial nor relating to a communicative act or writing on the part of an accused, and is not, therefore, violative of the Fifth Amendment privilege against self-incrimination.

      . See n. 3, supra.

      . “The right of the people to be secure in their persons . against unreasonable searches and seizures, shall not be violated

      . In Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977), it was stated:
      The generally acknowledged policies of requiring specific objections are twofold. First, a specific objection is required to inform the trial judge of the basis of the objection and afford him an opportunity to rule on it. Second, a specific objection is required to afford opposing counsel an opportunity to remove the objection or supply other [evidence].

      . In Hensley, the appellant disclaimed ownership of the automobile searched and this Court held he had no standing to contest the search. This is arguably analogous to the situation presented here where appellant claims that the urine on which analysis was made was not his urine.
      We do not say that a complaint as to the integrity of evidence introduced and used to convict is invalid; we merely reason that such a complaint is improperly grounded on the Fourth Amendment.

      . Only after his other objections were overruled did appellant mention generally, “it comes under due process, the Fourteenth Amendment . . .to which the trial court remarked, “All right, sir.”

      . In concluding the intrusion in Breithaupt was wholly justified and consistent with principles of due process of law, the court stated at 439, 440 of 352 U.S., at 412 of 77 S.Ct.:
      As against the right of an individual that his person be held inviolable, even against so slight an intrusion as is involved in applying a blood test of the kind to which millions of Americans submit as a matter of course nearly every day, must be set the interests of society in the scientific determination of intoxication, one of the great causes of the mortal hazards of the road. And the more so since the test likewise may establish" innocence, thus affording protection against the treachery of judgment based on one or more of the senses. Furthermore, since our criminal law is to no small extent justified by the assumption of deterrence, the individual’s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions. [Emphasis supplied]


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Ismael ARREDONDO, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 57664.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 20, 1979.
    Robert D. Thorpe, Corpus Christi, court appointed, for appellant.
    William B. Mobley, Jr., Dist. Atty. and Eric G. Brown, Asst. Dist. Atty., Corpus Christi, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of involuntary manslaughter. The punishment is imprisonment for five years.

Appellant contends that the trial court erred in overruling his motion to quash the indictment and his special plea of former conviction, and in failing to submit the special plea to the jury. Appellant also contends that the evidence is insufficient to sustain the conviction and that the prosecutor engaged in improper jury argument.

Late on August 8, 1976, a two-car accident occurred on Greenwood Street outside the Corpus Christi Boy’s Club. A dance was being held at the club that night, and a large crowd of mostly teen-aged persons gathered around the scene of this accident. At approximately 1:00 a. m., August 9, a car being driven down Greenwood Street at high speed veered off the street and into this crowd, killing four persons, one of whom was Robert Valdez. Appellant was a passenger in this third car, which was being driven by his son.

The indictment alleges, in pertinent part, that on or about August 9, 1976, appellant

“recklessly cause[d] the death of an individual, Robert Valdez, by grabbing the steering wheel of a motor vehicle and pulling said steering wheel to the right while the said Ismael Arredondo, Sr. was a passenger in the right front seat of said motor vehicle, thereby recklessly causing said motor vehicle to veer to the right and strike the said Robert Valdez, thereby fatally injuring the said Robert Valdez, who was standing in the roadway

A second count, alleging that appellant caused the deceased’s death by accident and mistake while operating a motor vehicle while intoxicated, was dismissed prior to trial.

Art. 21.15, V.A.C.C.P. provides:

“Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”

Appellant contends that the indictment fails to allege with reasonable certainty the act or acts relied upon to constitute recklessness. He argues that the acts described in the indictment do not in themselves constitute recklessness, and that the indictment fails to allege in what way the acts constituted recklessness in this case.

Art. 21.15, supra, was construed by this Court in Townsley v. State, 538 S.W.2d 411 (Tex.Cr.App.1976). We held that as long as the act relied upon to constitute recklessness is alleged with reasonable certainty so that the accused will be informed of the nature of the reckless act of which he is accused, the State is not required to plead such act in the terms of the statute, V.T. C.A. Penal Code, Sec. 6.03(c), defining recklessly.

In Townsley v. State, supra, as in the instant case, the indictment was for involuntary manslaughter under V.T.C.A. Penal Code, Sec. 19.05(a)(1). The indictment in Townsley alleged that the defendant

“did then and there recklessly cause the death of Luther Eugene Stark by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and recklessly causing said vehicle to run off the roadway and roll over, thereby fatally injuring the said Luther Eugene Stark, who was a passenger in said vehicle . .”

We held that this indictment alleged the reckless act with reasonable certainty.

The indictment in the instant case is not as artfully drawn as the indictment in Townsley v. State, supra. However, as in that case, the instant indictment does not allege merely “that the accused, in committing the offense, acted recklessly.” Art. 21.15, V.A.C.C.P. See and cf. Brown v. State, 558 S.W.2d 471 (Tex.Cr.App.1977); Jones v. State, 388 S.W.2d 716 (Tex.Cr.App. 1965); Short v. State, 387 S.W.2d 50 (Tex.Cr.App.1965); Scott v. State, 344 S.W.2d 457 (Tex.Cr.App.1961). We hold that the indictment alleges with reasonable certainty the act relied upon to constitute recklessness, said act being “grabbing the steering wheel of a motor vehicle and pulling said steering wheel to the right while [appellant] was a passenger in the right front seat of said motor vehicle, thereby recklessly causing said motor vehicle to veer to the right and strike the said Robert Valdez, thereby fatally injuring the said Robert Valdez ...”

On September 28, 1976, appellant pled guilty in the Corpus Christi Municipal Court to a complaint alleging that on or about August 9, 1976, he

“appear[ed] in a public place, while under the influence of alcohol to the degree that he might endanger himself or others.”

Appellant filed a special plea of prior conviction contending, as he now contends on appeal, that prosecution of the involuntary manslaughter indictment was barred by the prior public intoxication conviction. Appellant relies on Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) and Benard v. State, 481 S.W.2d 427 (Tex.Cr.App.1972).

Appellant’s contention is without merit. The offense of public intoxication and the offense of involuntary manslaughter involve separate acts in violation of separate statutes: Appellant could properly be convicted of both offenses. See Patterson v. State, 581 S.W.2d 696 (1979); Gehrke v. State, 507 S.W.2d 550 (Tex.Cr.App.1974); Grant v. State, 505 S.W.2d 279 (Tex.Cr.App.1974); Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972); McMillan v. State, 468 S.W.2d 444 (Tex.Cr.App.1971). The trial court did not err in overruling appellant’s special plea of former conviction.

The trial court also did not err in failing to submit appellant’s special plea to the jury. Art. 27.07, V.A.C.C.P., provides: However, if conceding the facts averred to be true, the plea in bar would not be good in law, the trial court may overrule it and decline to submit it to the jury. Thompson v. State, 99 Tex.Cr.R. 470, 269 S.W. 1048 (Tex.Cr.App.1925). Furthermore, there is nothing in the record to indicate that appellant requested the submission of his special plea to the jury.

“All issues of fact presented by a special plea shall be tried by the trier of facts on the trial on the merits.”

Appellant contends that the evidence is insufficient to sustain the conviction. Specifically, he contends that there is no evidence to indicate a jerking or pulling motion by appellant on the steering wheel causing the vehicle to veer to the right.

Juan Benavides testified that he, appellant, and appellant’s son spent the night of August 8, 1976, drinking beer at the Yellow Rose bar. They left the bar at approximately 12:50 a. m. on August 9. Benavides got in the back seat of the car, appellant got in the front seat on the passenger’s side, and appellant’s son, Smiley, drove. Bena-vides went on to testify as follows:

“Q. And after leaving the Yellow Rose can you tell us what happened after you left the Yellow Rose?

“A. Well, we just took off of the parking lot and I told him to turn right on Greenwood towards town.

“Q. And along that drive could you describe the actions of Mr. Arredondo?

“A. Well, he was just drunk and they were arguing' about I don’t know what, but he still wanted to drive, or something like that.

“Q. Do you recall him — you say he still wanted to drive — do you recall him doing anything unusual on that drive from the Yellow Rose down Greenwood? Or on Saratoga?

“A. Well, I just told him Smiley was driving all right.

“Q. What was Smiley doing?

“A. Well, he was driving and he was arguing with his father, interrupting him. “Q. Interrupting him?

“A. Yes.

“Q. Doing what?

“A. He didn’t want him to drive.

“Q. Was Mr. Arredondo interrupting his driving, Smiley’s driving?

“A. Yes.

“Q. What was he doing?

“A. He was grabbing the steering wheel.

“Q. And what would that cause the car to do when he grabbed the steering wheel? Would it remain going straight or what would happen to the car?

“A. Yes, it would remain going straight.

“Q. Would you state whether or not the car ever went off the road in the ride from the Yellow Rose.

“A. Twice.

“Q. It went off the road twice?

“A. Yes.

“Q. Do you mean it went totally off? Would you describe that for us?

“A. No, sir, just to the shoulder.

“Q. Did the wheels actually go off the cement?

“A. Two did, two of the right side.

“Q. Right?

“A. Yes, right side.

* * * * * *

“Q. Is this on Saratoga or on Greenwood?

“A. Greenwood.

“Q. As you went down Greenwood did they continue to argue about who should drive?

“A. Yes, sir.

“Q. Did you go across Horne Road?

“A. Yes, sir.

“Q. After going across Horne Road, could you describe in detail everything you remember from that point on.

“A. They were still arguing and he was still getting the steering wheel.

“Q. Who, Mr. Arredondo?

“A. Yes.

“Q. What were you doing at this time?

“A. Well, I was yelling to them, ‘stop, we were going to have a wreck,’ and I said, ‘just go ahead and leave him alone and let him drive.’

‡ ⅜ ‡ # ⅜ ⅜

“Q. Do you recall approaching the Boys Club?

“A. Yes, sir.

“Q. What was Mr. Arredondo doing then?

“A. He was still grabbing the steering wheel.

“Q. Could you describe what you saw ahead of you in the road, if you saw anything?

“A. I just saw quite a crowd of people.

“Q. What did you do when you saw the crowd of people?

“A. That is when I yelled, for the second time, ‘stop it!’

“Q. What happened after that?

“A. Well, we just hit, we just hit the crowd.

“Q. As you approached the crowd, did the car go straight or did it go to the left or to the right or what?

“A. It went to the right.

“Q. What caused it to go to the right?

“A. Must have been the steering wheel.

“Q. What do you mean? What do you mean by ‘the steering wheel?’

“A. Well, when he had his hand on the steering wheel.”

During cross-examination Benavides testified:

“Q. What you are saying is that from what you recall from the incident, he had his hand on the wheel and he and Smiley were arguing, is that correct?

“A. Yes, sir.

“Q. He could have just as easily pushed the wheel to the left.

“A. I don’t know if he was pushing to the right or to the left.

“Q. You don’t know for a fact?

“A. No, sir, I don’t know.

“Q. Did the car generally move in a direction to the right?

“A. Well, you really couldn’t tell because it just gradually went to the right.”

Appellant testified as follows:

“Q. As you were driving down Greenwood, how was Smiley driving?

“A. I do not know.

“Q. Did you ever touch the wheel as he was driving down Greenwood?

“A. I do not remember.

“Q. Do you recall going through the intersection of Horne Road and Greenwood?

“A. No.

“Q. Do you remember seeing a crowd of people in the street?

“A. Yes.

“Q. What did you do at that time?

“A. I moved the wheel left for him.

“Q. For him, being who?

“A. To the left side.

“Q. Were you doing that to help your son, Smiley?

“A. Yes. Because the people were in front.

“Q. Do you know what Smiley did then? “A. No, I did not know.

“Q. Do you recall hitting the people?

“A. Yes.”

Benavides testified that appellant was grabbing the steering wheel as the car approached the crowd at the Boy’s Club. The car began moving to the right and into the crowd. This testimony is sufficient to sustain the conviction, even though Bena-vides was unable to testify as to whether or not appellant actually pulled the steering wheel to the right. Although appellant testified that he was attempting to steer the car to the left and away from the crowd, the jury was free to disbelieve this testimony-

Finally, appellant complains of the following argument by the prosecutor:

“May it please the Court, Counsel for the defense and ladies and gentlemen of the jury: I want to go over this charge with you first before we talk about anything else. It’s a long charge and there a lot of ways that you can let this Defendant go and walk out of here.
“MR. THORPE: Your Honor, I am going to object to that and move for a mistrial at this time or an instruction of the verdict. It is highly prejudicial and improper.
“THE COURT: I am going to sustain the objection and overrule your motion for mistrial.
“MR. THORPE: May I request a jury instruction, Your Honor?
“THE COURT: All right the jury will be instructed to disregard the Counsel’s statements.”

The trial court sustained appellant’s general objection and instructed the jury to disregard the prosecutor’s statement. This was sufficient to cure the error.

The judgment is affirmed.


author: ODOM, Judge.

text:
    Marian Elizabeth ZANGHETTI, Appellant, v. The STATE of Texas, Appellee.
    No. 58061.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 20, 1979.

      George M. Karam, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, and James E. Rose, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

ODOM, Judge.

Appellant was convicted for the murder of her husband and placed on probation for ten years. The only issue raised is whether appellant is entitled to a free transcription of the court reporter’s notes in order to prepare her appeal on the merits. Guillory v. State, Tex.Cr.App., 557 S.W.2d 118.

Determination of whether an appellant is entitled to a free transcription of the court reporter’s notes must be decided on a case by case analysis. Stephens v. State, Tex.Cr.App., 509 S.W.2d 363. The issue is a matter of the defendant’s financial status at the time of appeal, not at the time of trial. Barber v. State, Tex.Cr.App., 542 S.W.2d 412; Conrad v. State, Tex.Cr.App., 537 S.W.2d 755. Also, it is a matter of the individual defendant’s financial condition, not that of his parents or other relative. Ex parte King, Tex.Cr.App., 550 S.W.2d 691; Conrad v. State, supra.

In this case, appellant retained counsel to represent her at trial, but still owed that attorney a considerable portion of his fee. At the time of the hearing on her financial condition, held in May 1977, she had over $10,000.00 of outstanding obligations, had monthly expenses of approximately $568, and had averaged about $400 a month over the preceding four months as a part-time bookkeeper at $4.50 an hour. Financial assistance from relatives enabled her to make up the difference needed to meet her monthly expenses.

She testified that during her marriage she had not worked outside the home, and that since her husband’s death she had secured several jobs, but was fired when her employers found out she was under indictment. Her only property was some furniture which she valued at $250 and a 1974 Lincoln Continental. This automobile was appraised by a used car dealer at $2700, but he refused to buy it because there was no market for such a car. Another dealer also told her there was no market for the car. She also testified that the bank told her the book value for the car was $5000, but the record does not reflect the date of that information, which could have been 1976 when she refinanced the car. The outstanding encumbrance on the car was over $1600.

It was stipulated that the record in the case would cost from $1500 to $2000. The State argues that the evidence of the car’s book value of $5000 encumbered to $1600 shows appellant “had $3400 in available cash.” The only evidence, however, is that there was no market for the car. The State also contends that appellant’s $255-a-month apartment is relative luxury. There is no evidence, however, that the housing market in Houston would place her apartment in the luxury category, and appellant testified she could not find a cheaper apartment in a part of town where a single woman would feel safe.

Appellant has made a prima facie showing of a right to a free record on appeal. Stephens v. State, Tex.Cr.App., 509 S.W.2d 363. We also note, however, that over two years have elapsed since the hearing was held on appellant’s motion for a hearing, and circumstances may have changed. A hearing may be held at any time during the criminal process if the trial court is placed on notice that there may be a change in the financial conditions that would alter the appellant’s status as a pauper. Foley v. State, Tex.Cr.App., 514 S.W.2d 449. We hold that in the absence of a motion alleging a change in appellant’s financial status that would enable her to pay for the record on appeal, she is entitled to one provided to her without cost.

The appeal is abated.


author: TOM G. DAVIS, Judge.

text:
    Robert James BERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 58227.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 20, 1979.

      J. R. Musslewhite, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge and Edward A. Dodd, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated rape. Punishment enhanced by one prior felony conviction was assessed by the jury at life.

The prosecutrix identified appellant as the person who raped her at gunpoint in her apartment about 5:00 A.M. on March 21, 1977. She reported the offense to the apartment manager who in turn notified the police. On the evening of the same day appellant called the prosecutrix and asked her to meet him at a restaurant. She suggested that appellant pick her up. The police were notified and appellant was arrested.

Appellant contends that the statement taken from him “was not freely and voluntarily given by him, was the direct result of unlawful force and coercion and findings to the contrary made by the trial judge were against the greater weight of the evidence.”

At the hearing on the motion to suppress appellant testified that arresting officer Tyler made the following threat:

“He threatened to blow to blow my head off — he told me that if Officer Wade hadn’t have been with him, he would have blowed by head off the minute I got out of the car. He told me that when I got to the penitentiary, I was going to get a beating, ’cause I was a rape fiend. And I told him that they didn’t do people like that in the penitentiary. And he told me he would arrange for it at the City jail.”

Immediately after appellant’s arrest he was taken to the office of the apartment complex where the prosecutrix resided. Appellant stated that a security guard slapped him and said “if he ever seen me around that apartment project again, he’d blow my head off.” The security guard did not represent himself as being a police officer.

Appellant was turned over “to two other officers” who took him to the police station. Officer Tyler did not accompany appellant to the police station nor was he there when the confession was taken. Appellant testified that the officers who took him to the police station did not threaten or physically abuse him. Officer Trimble took the confession from appellant at the police station approximately an hour and a half after he was arrested. Appellant related that Trim-ble read and explained his rights to him. Appellant stated that he had been to the Texas Department of Corrections on four previous occasions and that he understood his rights. In response to questions from both the prosecutor and his counsel appellant stated that Trimble did not physically abuse or threaten him. Officer Trimble refuted appellant’s testimony that he was given a statement from the prosecutrix to use in making his confession. Trimble testified that appellant did not act as if he were in fear or under any threat and did not tell Trimble that he had been threatened by Tyler or any other officer that he was going to receive a beating in jail. Appellant’s contention that the statement was not freely and voluntarily given appears to be bottomed on his testimony that he was afraid of the beating which was threatened by Officer Tyler coupled with the fact that he had received “some amount of beating” following the arrest.

Appellant calls our attention to the fact that neither Tyler nor the apartment security guard was called to refute appellant’s testimony. See Farr v. State, Tex.Cr.App., 519 S.W.2d 876; Sherman v. State, Tex.Cr.App., 532 S.W.2d 634; Smith v. State, Tex.Cr.App., 547 S.W.2d 6.

In Brooks v. State, 130 Tex.Cr.R. 561, 95 S.W.2d 136 it was held that a confession was not rendered inadmissible as a matter of law because of the assault by an officer on the defendant which was prior to, disconnected with, and in no way related to the confession. The sheriff testified that he kicked the defendant because he called him a liar. There was no evidence about any threat to the defendant if he did not give a confession. While noting that the action of the sheriff in kicking a prisoner was regrettable, it was concluded that the assault was anterior to the confession, disconnected therewith and in no way related to the confession or any effort to obtain or force a confession.

The totality of the circumstances must be examined to determine whether a confession is voluntary. Farr v. State, Tex.Cr.App., 519 S.W.2d 876. In Farr the evidence was uncontradicted that there was coercion and abuse at the time of arrest, and that an arresting officer was present at the time of the confession who reminded defendant that if he did not sign the confession, another arresting officer would exert physical force again. This Court was unable to conclude as a matter of law that the confession was voluntarily made.

In Smith v. State, 547 S.W.2d 6 we noted the significance in a break in the stream of events from the initial coercion to the giving of the confession.

There is no showing that the security guard who slapped appellant at the apartment complex was a police officer. Assuming that such were the case, the words spoken and the assault in no way relate to appellant making a confession. The guard’s threat was directed toward appellant ever returning to the “apartment project.” Appellant’s testimony relative to arresting officer Tyler’s threats shows that such threats were disconnected with and in no way related to the confession or any effort to obtain or force a confession. The threat that appellant was going to receive a beating in jail or the Texas Department of Corrections was in no way conditioned upon or related to the giving or withholding of a confession. We conclude that the court’s findings regarding the admissibility of the confession are supported by the evidence.

Appellant contends the court erred in admitting “State’s Exhibit # 7 in evidence before the jury in that the copies of the five alleged convictions indicate that appellant did not waive his right to a trial by jury in writing and in open court.”

The five convictions to which appellant directs his complaint are convictions out of Limestone County and not the conviction relied on for enhancement out of Ector County. The record reflects that appellant entered a plea of true to the conviction relied on for enhancement.

Appellant’s complaint is directed to State’s Exhibit No. 7, pen papers containing judgments in five felony convictions from Limestone County. Appellant testified that he was one and the same person convicted in each of these offenses and counsel for appellant expressly stated that there was no objection to the admission of the exhibit into evidence.

Appellant calls our attention to those portions of the Limestone County judgments which relate to waiver of jury. The portion in question reads:

“Thereupon the defendant requested the consent and approval of the Court to waive the right of a trial by a jury, and whereas such consent and approval, of the duly elected and acting attorney representing the State, in writing duly signed by said attorney, was filed in the papers in said cause before the defendant entered the plea of guilty, and it appears that all prerequisites required by law for the waiving of this right have been performed. Therefore the Court now gives its consent and approval for the said defendant to waive the right of a trial by a jury.”

Appellant’s position appears to be that since there is no express recital in the judgments that the appellant waived his right to trial by jury in writing as required by Art. 1.13, V.A.C.C.P. that we can infer that there was a lack of this requirement and the judgments are void.

The recitation in the judgments that “it appeared that all prerequisites required by law for the waiving of this right [trial by jury] have been performed” overcome any inference of irregularity which may arise from the omission about which appellant complains. See Ex Parte Huddleston, 149 Tex.Cr.R. 388, 194 S.W.2d 401. Clearly, the judgments are not subject to collateral attack under the complaint here advanced.

The judgment is affirmed.


text:
    Dale Lee TEDRICK, Appellant, v. The STATE of Texas, Appellee.
    No. 58232.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 20, 1979.
    E. Neil Lane, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Gerald R. Flatten, Asst. Dist. At-tys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment, enhanced by a prior felony conviction, is imprisonment for life.

Appellant urges in a supplemental brief that the trial court’s charge contains fundamental error, in that it authorizes a conviction on a theory of aggravated robbery which is not alleged in the indictment.

Sec. 29.03(a) of the penal code provides:

“(a) A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he:
“(1) causes serious bodily injury to another; or
“(2) uses or exhibits a deadly weapon.”

The indictment in this case alleged the offense of aggravated robbery only under Sec. 29.03(a)(2), supra. The trial court’s charge, however, authorized a conviction under either Sec. 29.03(a)(1) or Sec. 29.-03(a)(2). This was error. Appellant did not object to the charge, but an objection is not necessary to preserve the error because this Court has held in numerous cases that the error is fundamental. See e. g. Gooden v. State, 576 S.W.2d 382 (Tex.Cr.App.1979); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977).

The judgment must be reversed and the cause remanded.


text:
    Robert D. CANNADY, Appellant, v. The STATE of Texas, Appellee.
    No. 60773.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 20, 1979.

      William H. Scott, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus, and Connie B. Williams, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, Judge.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

On April 4, 1977, appellant waived his right to a jury trial and entered a plea of nolo contendere to the offense of possession of a controlled substance, phentermine, an isomer of methamphetamine. Punishment was assessed at imprisonment for five years, but imposition of sentence was suspended and appellant was placed on probation. One of the conditions of his probation was that appellant commit no offense against the laws of this State.

On November 2, 1977, an amended motion to revoke appellant’s probation was filed alleging that appellant had committed the offense of possession of methaqualone, a controlled substance, on two occasions: June 24, 1977, and September 30, 1977. On February 17, 1978, after hearing evidence, the trial court revoked appellant’s probation and imposed sentence.

Appellant contends that the evidence on which the revocation order is based was unlawfully seized because the search exceeded the scope of the search warrant; the State failed to produce the search warrant pursuant to which the evidence was seized; and the evidence does not support the finding of a probation violation on June 24, 1977.

Officer Leo Correa testified that on September 30,1977, he and several other Houston police officers went to 6927 Long Point Road in Houston to execute a narcotics search warrant. The building in question was a long, commercial building containing several offices and businesses. Each of these establishments, though contained in a single building, had a separate entrance and bore a separate address.

After unsuccessfully attempting to open or break down the door marked 6927, the officers looked through a plate glass window and saw several men running from 6927 into 6929 through an opening in the wall between the two offices. The officers then entered the building through the door marked 6929- During a search of the premises, a bottle containing twenty-five metha-qualone tablets was found in a tool kit belonging to appellant, who was one of the persons present at the time the warrant was executed.

The testimony describing the premises at 6927 and 6929 Long Point Road is confusing, since repeated references are made to diagrams which do not appear in the record on appeal. However, it appears from the testimony of the police and of appellant that 6927 and 6929 were leased by the same person and were being remodeled at the time of the search, and that several partitions separating the various offices and storerooms at the two addresses had been removed. Appellant testified that the tool box in which the contraband was found was located within the premises numbered 6929, but conceded on cross-examination that at the time of the search 6927 and 6929 appeared to be one large room.

Where premises sought to be searched are described in the search warrant by a certain street number, such a description will not authorize a search of some other street number. Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955 (1957); Harrison v. State, 149 Tex.Cr.R. 513, 196 S.W.2d 933 (1946); Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676 (1938). However, even if we assume that appellant’s tool box was located within the premises technically designated 6929 Long Point Road, and was thus outside the scope of the search warrant, the search of 6929 was lawful.

The test to be applied to searches outside the scope of a search warrant is whether the search was unreasonable, since only unreasonable searches are prohibited by the Fourth Amendment of the United States Constitution and Art. I, Sec. 9 of the Texas Constitution. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975) and cases therein cited. 6927 and 6929 Long Point Road were not separate structures, but adjacent offices within a single building. The partitions between and within 6927 and 6929 had been removed for remodeling, and the area appeared to be one large room. The officers seeking to execute the search warrant for 6927 saw men running from the 6927 area to the 6929 area. Under the circumstances, the search of 6929 Long Point Road was not unreasonable.

The appellant contends the State failed to produce a search warrant at the revocation hearing. When a defendant objects to the court admitting evidence on the ground that it was unlawfully seized and the State relies on a search warrant, in the absence of a waiver, reversible error will result unless the record reflects that the warrant was exhibited to the trial judge. Vines v. State, 397 S.W.2d 868 (Tex.Cr.App.1966); Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297 (1958); Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662 (1943); Skiles v. State, 109 Tex.Cr.R. 6, 2 S.W.2d 436 (1928); and see Fletcher v. State, 171 Tex.Cr.R. 74, 344 S.W.2d 683 (1961). However, if defense counsel desires a review of the search warrant and affidavit on appeal, it is necessary for him to offer for the record on a bill of exception copies of the search warrant and of the affidavit. Broussard v. State, 166 Tex.Cr.R. 224, 312 S.W.2d 664 (1958); Doby v. State, 383 S.W.2d 418 (Tex.Cr.App.1964). The affidavit and warrant are hearsay and generally are not admissible before the jury. Figueroa v. State, 473 S.W.2d 202 (Tex.Cr.App. 1971); Hebert v. State, 157 Tex.Cr.R. 504, 249 S.W.2d 925 (1952).

The appellant’s contention is without merit. Although the warrant was not admitted in evidence, the transcript of the court reporter’s notes reflects that Officer Correa identified State’s Exhibits 3 and 4 as certified copies of the warrant and supporting affidavit. This shows they were exhibited to the trial judge. The record includes a copy of the affidavit and a portion of the search warrant.

Appellant’s contention that there is no evidence to support the finding that he violated the conditions of his probation on June 24, 1977, is well taken. The evidence adduced at the revocation hearing relates solely to the search and subsequent seizure of the methaqualone on September 30,1977. The judgment is reformed to delete the finding that appellant violated the conditions of his probation by possessing metha-qualone, a controlled substance, on June 24, 1977. Art 44.24(b), V.A.C.C.P.; Pickett v. State, 542 S.W.2d 868 (Tex.Cr.App.1976); Hancock v. State, 491 S.W.2d 139 (Tex.Cr.App.1973).

The trial court did not abuse its discretion in revoking appellant’s probation. As reformed, the judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Edward SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 61169.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 20, 1979.

      Russell C. Busby, Amarillo, for appellant.
    Tom Curtis, Dist. Atty., John Byron Reese and Steve Schiwetz, Asst. Dist. At-tys., Amarillo, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DOUGLAS, Judge.

Edward Salazar appeals from his conviction for aggravated sexual abuse based upon his plea of guilty. Punishment was assessed by the court at seven years. Salazar’s sole contention on this appeal is that the court erred in denying his motion to suppress certain physical evidence.

On March 7,1977, Salazar forced a young man into his car. Salazar drove him to his house and, after threatening him with a gun, forced him to commit homosexual acts. Later that day, officers entered Salazar’s house, arrested him and seized a shotgun and bed sheets.

Salazar filed a motion to suppress this physical evidence. The motion was denied. He entered a plea of guilty on November 20, 1978. At that time, the only evidence offered to prove the indictment was Salazar’s judicial confession.

Article 44.02, V.A.C.C.P., was amended effective August 29, 1977, to limit the right to appeal from a guilty plea. Article 44.02 now provides:

“A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assessed punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial.

Thus, under Article 44.02, Salazar is entitled to appeal the denial of his motion to suppress. However, none of the evidence which he sought to suppress was used to support the conviction. In Ferguson v. State, 571 S.W.2d 908 (Tex.Cr.App.1978), we dealt with the same situation and held, “If the guilty plea is supported by evidence . independently of the matter contested in the pre-trial motion, then any erroneous ruling on that motion does not vitiate the conviction.”

The holding of Ferguson controls the instant case. After Salazar’s motion to suppress was denied, he pled guilty. Salazar then made a judicial confession in order to support his guilty plea as is required by Article 1.15, V.A.C.C.P. None of the evidence challenged by the motion to suppress was used to support the conviction. Under these circumstances, Salazar’s contention is overruled.

The judgment is affirmed.


author: CLAYTON, Justice.

text:
    BENDIX HOME SYSTEMS, INC., Appellant, v. Martin W. KISSMAN et al., Appellees.
    No. 8126.
    Court of Civil Appeals of Texas, Beaumont.
    Nov. 30, 1978.
    Rehearing Denied Dec. 21, 1978.
    Terrence Kendall,' Austin, for appellant.
    Richard W. Alexander, Austin, for appel-lees.
   CLAYTON, Justice.

Plaintiffs brought this action against J. W. Laney, individually and d/b/a Smith-ville Mobile Homes, and Bendix Home Systems, Inc., for treble damages and attorney fees under the Texas Business and Commerce Code. In a non-jury trial judgment was entered for the plaintiffs in the sum of $23,748.81 against Bendix and for $1.00 against Lane. Bendix alone has appealed from this judgment.

Plaintiffs purchased a mobile home from Laney, the manufacturer was Bendix. This cause of action was based upon breach of express and implied warranties. Their basic complaints are that they purchased a “modular” mobile home but were delivered and sold a double-wide mobile home, that there were numerous specified “structural defects” that rendered the mobile home unfit for habitation, and that Laney incorrectly transmitted their order to Bendix, resulting in the mobile home being in several respects different from the home ordered by plaintiffs. The relief sought by plaintiffs in their petition was that “as a direct result of the defects and design discrepancies . . . plaintiffs have revoked their acceptance of the mobile home” and sought to “recover the market price of a mobile home” which was stated to be approximately twenty-two thousand dollars. Plaintiffs also sought damages for “incidental and consequential damages,” the “cost of moving from their current mobile home to the replacement, and any reasonable expenses for temporary lodging, pending the delivery and assembly of their replacement mobile home.” Plaintiffs sought treble damages under the Texas Deceptive Trade Practices and Consumer Protection Act, and for attorney’s fees.

Appellant’s first point urges error of the trial court in not entering a “take nothing” judgment against plaintiffs in that plaintiffs did not reasonably reject the mobile home made the basis of their suit. We need not consider this point because plaintiffs concede in their brief: “It is clear that the trial court did, by necessary implication, spurn [plaintiffs] revocation of acceptance theory of recovery and awarded damages on another theory — namely, damages based on the reasonable cost of repair of the defectively designed and manufactured mobile home. . . [Plaintiffs] have elected to waive this possible cross assignment of error for purposes of this appeal and proceed to demonstrate that the court properly awarded damages for cost of repair.” This concession disposes of plaintiffs’ revocation of acceptance theory of recovery; there is no evidence of damages arising from a breach of warranty theory of recovery.

The trial court, in its findings, held that “[t]he fair market value of and the usual and reasonable cost of repairing and replacing the defective conditions and repairing the damages caused thereby is $7,916.27.”

The trial court concluded “[p]laintiffs are entitled to treble the aforesaid actual damages, which sum is $23,748.81.” From this finding and conclusion, it is clear the judgment was based upon the damages arising from the cost of repairs resulting from the defective conditions of the mobile home.

The only evidence in the record as to reasonable cost of repairs came from the Witness James Blount. In attempting to give his estimate of repair costs, the following appears in the statement of facts:

“MR. KENDALL: Your Honor, I would object to any attempt to introduce the prices of these particular items; that is not what the plaintiffs sued for. He has a suit on the basis he has revoked his contract and wants his money back and exemplary damages as well. He is not suing for the cost of making certain repairs.
“THE COURT: (To Counsel) — What is the purpose of making the estimate of repairs?
“MR. KUHN: Just to show, your Honor, just how serious the matter of the damage is, the amount of money it would take to make this home a livable home.
“THE COURT: I don’t know what purpose if would serve.
“MR. KUHN: All right. I pass the witness.
“THE COURT: I don’t see any purpose in it, but go ahead and get this covered if you want to.
“MR. KENDALL: Your Honor, we would have a running objection on that.
“THE COURT: Yes. The Court is not going to consider it in the lawsuit. I don’t see that it will hurt anything. (To the Witness) — Go ahead.
“A: The total cost—
“MR. KENDALL: Your Honor, would have a running objection on that.
“A: The total cost to repair this would be $7,916.27.”

The above statements constitute the only evidence in the record with reference to cost of repairs. We agree with defendant where he states in his brief, “We respectfully submit that there is a complete absence of evidence of a vital fact (the cost of repairs) in the instant case, because the court agreed to exclude and not to consider Mr. Blount’s estimate of that cost.” When the court announced that “[t]he Court is not going to consider it in the lawsuit,” the judge meant just what he said even though he told the witness to “go ahead” after stating that “I don’t see that it will hurt anything.” The judge stated he would not consider the evidence, and it does not appear anywhere in the record that he ever, at any time, changed his mind or his ruling upon the objection. Defendant had every reason to believe the judge, and to respect his ruling; consequently, he had every reason for not presenting any evidence to contradict or disprove this amount of cost of repair. He had the right to rely upon, and obviously did rely upon, the court’s announcement that he would not consider the evidence. Moreover, the evidence would not have been admissible for the purpose of proving cost of repairs because the same was not properly in issue. Upon a very careful reading of plaintiffs’ petition and their relief sought, it is clear that they did not assert a cause of action nor seek damages for reasonable cost of repairs arising from any defective condition. The revocation of acceptance theory of recovery had been waived; there is no evidence of any damages arising from breach of warranty, and there is no evidence of and no relief sought for reasonable cost of repairs to any defective condition of the mobile home.

There being no evidence of damages of probative value to support the judgment of the trial court, the judgment is reversed and rendered that plaintiffs take nothing as to their cause of action against Bendix.

Reversed and RENDERED.


text:
    TIMMERS CHEVROLET, INC. and Harvey E. Lively, Appellants, v. Orel CARROLL, Appellee.
    No. 8197.
    Court of Civil Appeals of Texas, Beaumont.
    Feb. 22, 1979.
    Rehearing Denied April 5, 1979.

      J. W. Patten, Arthur M. Glover, Jr., Iris Hefter Robinson, Lorance, Thompson, & Wittig, Houston, for appellants.
    Henry P. Giessel, Houston, Leo Freedman, Pasadena, for appellee.
   CLAYTON, Justice.

This is a personal injury suit arising out of an automobile-wrecker truck collision which occurred in Pasadena, Texas. Plaintiff sued John Morris Crum, Jerry McCoy, individually and d/b/a Harvey’s Wrecker Service and also d/b/a Timmers Wrecker Company, Timmers Chevrolet, Inc., and Harvey E. Lively, individually and d/b/a Harvey’s Wrecker Service, for personal injuries he received when the automobile he was driving was struck by the wrecker driven by defendant Crum. Defendant Lively was the owner of the wrecker and the holder of the emergency wrecker permit issued by the City of Pasadena. Defendant McCoy had leased the wrecker from defendant Lively. “Timmers Chevrolet” was painted upon the sides and front of the wrecker.

The jury, in response to special issues, found that the plaintiff was 15 percent negligent and defendant Crum was 85 percent negligent, that defendants Timmers Chevrolet, McCoy, and Lively were, at the time of the collision in question, “engaged in a civil conspiracy ... to evade the auto wrecker permit Laws of the City of Pasadena.” Based upon the verdict, the trial court entered judgment against all named defendants, jointly and severally, in the sum of $692,750. Defendants Timmers Chevrolet, Inc., and Harvey E. Lively have perfected their appeal from such judgment. The other named defendants have not appealed.

Both appellants urge “no evidence points” as to the findings of the jury on the question of conspiracy. The issue submitted to the jury inquired, “Do you find that Jerry McCoy, Harvey Lively, and Timmers Chevrolet, Inc., were engaged in a civil conspiracy, at the time of the collision in question, to evade the auto wrecker permit Laws of the City of Pasadena?” In response thereto the jury answered, “Yes.” The primary question before this court is whether or not there is any evidence of probative force to support the jury findings as to the existence of a conspiracy.

In deciding a “no evidence” question, we must consider only the evidence and the inferences tending to support the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965)¿ Lucas v. Hartford Accident and Indemnity Co., 552 S.W.2d 796, 797 (Tex.1977); Fisher Construction Co. v. Riggs, 160 Tex. 23, 325 S.W.2d 126, 127 (1959).

The parties apparently are not in dispute as to the relevant facts with reference to the question of a conspiracy. Lively operated a wrecker service, and Timmers Chevrolet operated an automobile dealership with a service department operating for the purposes of repairing automobiles. There was an agreement between Timmers and Lively under which Timmers, upon receiving a call from a member of the public concerning that person’s disabled vehicle, would relay that call, by way of a central dispatch system, to Harvey’s Wrecker Service. Harvey’s Wrecker Service, if a wrecker was available, would then proceed to pick up the disabled vehicle. If Harvey’s Wrecker Service was unable to answer the call, Timmers was free to use other wrecker services. In addition, Timmers was allowed to advertise by painting its name on the sides and front of the wrecker trucks. However, Timmers was not the only customer of Harvey’s Wrecker Service. The record shows that not only did Harvey’s Wrecker Service receive calls for service from individuals but also had agreements with other business establishments to provide wrecker services, e. g., Pasadena Dat-sun, Pasadena Automotive, and Jay Marks Chevrolet.

On the day of the accident, defendant Crum was driving the wrecker to pick up a vehicle belonging to a Mr. George. George’s vehicle was disabled, and he had contacted Pasadena Datsun, not Timmers, to get a wrecker in order to transport his vehicle. Pasadena Datsun gave George the name of Harvey’s Wrecker to contact. George contacted Harvey’s Wrecker, and the wrecker, driven by Crum, while on its way to pick up George’s vehicle) was involved in the collision made the basis of this suit.

Subsequent to the agreement by and between Lively and Timmers, Lively leased Harvey’s Wrecker Service, including the wrecker permits issued to Harvey’s Wrecker Service or Lively by the City, to McCoy. Timmers Chevrolet was not a party to this transaction. The evidence indicates that this lease arrangement was used because the wrecker permits in the name of Lively or the wrecker service could not be transferred. A review of the record indicates that only two agreements were in existence between the parties; i. e., the lease by Lively to McCoy and the agreement between Timmers Chevrolet and Lively.

To decide Timmers Chevrolet’s liability to plaintiff, in view of the question raised on this appeal, we must determine if Timmers Chevrolet was engaged in a civil conspiracy with the other named defendants; i. e.', Lively and McCoy. Actionable conspiracy has been defined as “a combination of two or more persons ... to accomplish ... a lawful purpose by unlawful means.” When a conspiracy is proven each of the parties thereto is responsible for all the acts done by any of the conspirators in furtherance of the unlawful combination. See Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436 (1959). It is plaintiff’s contention that the three named defendants — Timmers Chevrolet, Lively, and McCoy — conspired to evade the provisions of the City’s ordinance requiring permits for the operation of a wrecker upon the streets of the City.

The ordinance of the City of Pasadena, with reference to obtaining permits for wreckers, provides that an “owner” of a wrecker must obtain a permit for the same before the wrecker can be operated upon the streets of the City. The ordinance further provides:

“Owner. The term ‘owner’ shall be construed to mean any person engaged in the business of towing motor vehicles for hire or engaged in the business of storing, wrecking or repairing motor vehicles for hire and who owns or is entitled to use any auto wrecker, or emergency auto wrecker, and who uses same in the conduct of his business or any part thereof.”

It is undisputed that Lively owned the wrecker involved in this accident in that he had legal title thereto. It is further undisputed that he had leased his business and his wrecker to McCoy. Permits had been issued to Lively for each of the wreckers owned by him and leased to McCoy.

The only conspiracy in which Tim-mers could be involved would be, by agreement with Lively, an attempt to create a relationship with Lively.,so that Timmers would not be required to comply with the City’s ordinance in obtaining a permit. We hold that, under the facts o'f this case, Tim-mers was not required to obtain a permit for the wrecker involved in this accident. Timmers was not a company “who owns or is entitled to use any auto wrecker . and who uses the same in the conduct of his business or any part thereof.” Timmers was not the owner and did not have legal title to the wrecker. Timmers was not contractually entitled to use any particular wrecker and certainly not the one involved in this accident. This particular wrecker was being used for the benefit of another company which had no dealings or relationship with Timmers. Timmers was only given service if and when a wrecker was available and then only to a wrecker which was available and not to any particular wrecker. The agreement between Timmers and Lively, as outlined above, was that Timmers could relay its calls for wrecker service to Lively. Lively would, in return, deliver disabled automobiles to Timmers unless the customer or owner of the vehicle desired that it be taken to another place. Timmers did not have the right of control over the wrecker, did not employ the drivers, and in fact did not even have the right to receive all the vehicles served by the wrecker. If Timmers relayed a call for a wrecker, and a wrecker was not available, Timmers could not, and did not, even have the right to the wrecker service for any reason. At the time of the accident in this case, Timmers had absolutely nothing to do with the wrecker. The wrecker involved was actually serving a call received from another company.

Timmers was not entitled to use the wrecker in this case, or any other wreckers operated «by McCoy or Lively within the meaning of that term as stated in the City ordinance. The word “use” is defined by the court in James Stewart & Co. v. Mobley, 282 S.W.2d 290 (Tex.Civ.App.—Dallas 1955, writ ref’d), in the following language:

“ ‘ Use ’ is to employ for accomplishment of a purpose; to apply to one’s service; to avail oneself of. See 43 Words and Phrases, p. 478, ‘Use,’ Subdivision, Employ. And Southwestern Telegram & Telephone Co. v. City of Dallas, Tex.Civ.App., 174 S.W. 636, writ ref.”

Timmers, not being required to obtain a permit in its name, could not be involved in or commit a conspiracy to evade provisions of the City’s permit ordinance. Timmers cannot be charged with conspiring to evade an ordinance by not obtaining a permit when the ordinance does not require it to obtain a permit in the first instance.

Plaintiff strongly relies upon Berry v. Golden Light Coffee Company, supra, in his contentions that a conspiracy existed between the three named defendants. In the Berry case the agreement entered into between the parties was for the deliberate purpose of circumventing the Texas Motor Carrier Act in falsely representing that the parties were exempt from the provisions of such Act. In holding that such agreement constituted a conspiracy, the Supreme Court states that “[n]umerous provisions of the . . Act are patently designed for protection of the public, such as the requirement for indemnity insurance, Railroad Commission approval of equipment and the like . . . .” The conspiracy in the Berry case actually was an attempt to exempt the parties from complying with the Act in obtaining the required permits and prevented the vehicles from being subjected to the regulatory requirements of the Act. However, in the case at bar, there was no attempt to prevent the necessity of complying with the City ordinance. The wrecker involved herein had a permit issued therefor in the name of Lively, who was the actual owner, and presumably the wrecker had met all the regulatory and safety requirements of the City, as to the City’s rights to protect all persons in the use of its streets, that could have been protected or regulated regardless of the person or business entity to whom such permit had been issued.

The purpose of the conspiracy in the Berry case was to operate vehicles upon the highway without subjecting those vehicles to the regulatory provisions of the Texas Motor Carrier Act. This case does not support the plaintiffs position.

Upon a careful review of the evidence, and considering the evidence under the required standards, as stated in Lucas v. Hartford Accident and Indemnity Co., supra, and Garza v. Alviar, supra, we find there is no evidence of probative force to support a finding that Timmers was engaged in a conspiracy. The special issue inquiring as to the existence of a conspiracy between the three named defendants necessarily required Timmers to be engaged in such conspiracy. Timmers not having been so engaged, then the affirmative answer to the special issue cannot stand.

The no evidence point as to the conspiracy issue was presented in appellants’ Motion for Judgment Non Obstante Veredicto, which was overruled by the trial court. We agree with appellants that the court erred in overruling such motion, and the erroneous judgment entered by the court should be reversed and rendered.

There is no separate jury finding that Lively and McCoy had engaged in a conspiracy. Plaintiff did not request such an issue, and such was not submitted to the trial court. The same was waived by the plaintiff. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529, 531 (Tex.1965); City of Houston v. Bush, 566 S.W.2d 33 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.); Tex.R.Civ.P. 279.

There being no evidence of probative force to support a finding of conspiracy on the part of Timmers Chevrolet and no separate finding of a conspiracy on the part of Lively, the judgment of the trial court is reversed as to Timmers Chevrolet and Lively, and we here render judgment that plaintiff take nothing as to Timmers Chevrolet and Harvey E. Lively. The remaining portions of the judgment are unchanged.

REVERSED and RENDERED.


author: DIES, Chief Justice.

text:
    SABINE OFFSHORE SERVICE, INC., Appellant, v. The CITY OF PORT ARTHUR et al., Appellees.
    No. 8239.
    Court of Civil Appeals of Texas, Beaumont.
    March 15, 1979.
    Rehearing Denied April 5, 1979.

      Harry P. Wright, Port Neches, for appellant.
    George B. Wikoff, Port Arthur, James L. Weber, Beaumont, for appellees.
   DIES, Chief Justice.

On May 15,1978, the City of Port Arthur, a home rule city, annexed a certain area which included the territory comprising the Jefferson County Fresh Water Supply District No. 1. Thereafter Port Arthur abolished the water district and assumed its assets, liabilities, and responsibilities. One of its water customers in the Sabine Pass area is Sabine Offshore Service, Inc., a company which services offshore drillers, including selling them large amounts of water obtained from Port Arthur. The Sabine Pass area was experiencing water shortages and inadequate pressures; so, in August 1978 the Port Arthur City Council ordered that Sabine Offshore Service, Inc. (and other Sabine Pass industries providing potable water for offshore use) could take water only on alternate days.

On August 21, 1978, Sabine Offshore presented its Petition for Writ of Mandamus to the District Court alleging that the water policy discriminated against Sabine Offshore. The District Court agreed, and the writ was issued August 31, 1978. On September 14,1978, the City of Port Arthur adopted a proportionate use plan. Under this plan, offshore service industries could “draw water during certain distinct times proportionate to their historical usage. . ” Under this plan, Sabine Offshore may draw all the water it needs but must not take any from 4:00-12:00 a. m.

Following the adoption of this new plan, the District Court on September 20, 1978, dissolved the Writ of Mandamus and dismissed the cause. It is from this order Sabine Offshore brings this appeal contending in one point of error that “[t]he Trial Court erred in dissolving its temporary Writ of Mandamus and dismissing the appellant’s cause of action because the City of Port Arthur, Texas, is under a duty to supply water to Appellant, and the Trial Court found, which finding is supported by the great weight of the evidence, that the Appellees acted in an arbitrary, capricious and discriminatory manner in adopting its policy that rationed water to the Appellant.”

When Port Arthur annexed Sabine Pass, it assumed the responsibility of providing water to all users within the territory but only if the demand for such water is reasonable and within its capacity. Allen v. Park Place Water, Light & Power Co., 266 S.W. 219, 222 (Tex.Civ.App.—Galveston 1924, writ ref’d). A municipality may refuse to supply water in the amount requested provided its decision is not discriminatory. 12 E. McQuillian, Municipal Corporations § 35.-35 at 472 (3rd ed. 1970). Wiggins v. City of Texarkana, 239 S.W.2d 212 (Tex.Civ.App.—Texarkana 1951), aff’d 151 Tex. 100, 246 S.W.2d 622 (1952); 60 Tex.Jur.2d Waters § 357 (1964). City of Galveston v. Kenner, 111 Tex. 484, 240 S.W. 894 (1922). The furnishing of water is a legislative function, and a court must not interfere or regulate the exercise of this power [Tex.Rev.Civ.Stat.Ann. § 1175(11) (Vernon 1963)] unless the city is discriminatory. Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934); see Williams v. Sorrell, 71 S.W.2d 944 (Tex.Civ.App.—San Antonio 1934, no writ).

If there is a differentiation in treatment, the municipality must show a reasonable basis for the difference. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622 (1952).

The evidence shows here that the water pressure at times in Sabine Pass is much lower than the minimum recommended by the Department of Health, and so low in fact toilets in the schools would sometimes not flush. All offshore service companies are treated the same in the present plan. The City has hired an engineering firm to recommend a proper method to alleviate the shortage. It (the City) has this discretion. See Kimbrough v. Walling, 371 S.W.2d 691 (Tex.1963); Bright v. City of Corpus Christi, 172 S.W.2d 763 (Tex.Civ. App.—San Antonio 1943, no writ); Webb v. Dameron, 219 S.W.2d 581 (Tex.Civ.App.—Amarillo 1949, writ ref’d n. r. e.). Finding no discrimination to appellant, we overrule appellant’s point of error and affirm the trial court’s order.

AFFIRMED.


author: WALLACE, Justice.

text:
    Robert P. GLASS, Appellant, v. Gary Lee ANDERSON et al., Appellee.
    No. 17330.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 29, 1979.
    Rehearing Denied May 10, 1979.

      Schlanger, Cook, Cohn, Mills & Gross-berg, Joel W. Cook, Houston, for appellant.

      Weitinger, Steelhammer & Tucker, Don A. Weitinger, Don E. Brown, Houston, for appellee.
    Before EVANS, WALLACE and WARREN, JJ.
   WALLACE, Justice.

Robert P. Glass, defendant, appeals from a judgment for Gary Lee Anderson, plaintiff, for specific performance of earnest money contracts.

Defendant was Seller, Plaintiff and Lon Porter were Purchasers. Porter assigned his interest in the contracts to the plaintiff prior to trial and is not a party to this appeal. On May 14, 1974, the parties entered into six earnest money contracts for six separate tracts of improved, residential real estate. Earnest money of $1200 was paid to Seller and placed in escrow with a title company. Each contract provided “ . . . Seller agrees to furnish within fifteen days from acceptance of this contract by Seller, an owner’s title policy . within five days from the date title to the above property is shown in Seller as hereinafter provided, Seller agrees to execute and deliver General Warranty Deed to Purchaser conveying said property ... at which time Purchaser agrees to pay said consideration in the manner above provided.” Total purchase price of all six tracts was $103,000, $25,000 to be paid in cash at time of closing, and Defendant was to carry the balance for fifteen years at 9% interest, the note to be secured by vendor’s lien.

Prior to completion of title search by the title company, Plaintiff encountered difficulty in raising the down payment and called the title company to tell them he needed more time. He was advised to “see an attorney,” which he did. He also called Defendant and advised him that he could not get financing and wanted his earnest money back. Defendant then had the electricity turned on in three of the houses which were vacant and commenced work to get them ready to rent. On June 13, 1974, Plaintiff’s attorney wrote the title company advising that “several of the contracts are unsigned by the Seller and some were rejected by the Purchaser. You are further directed that you should not commence any title review of the properties if you have not been so informed by Mr. Glass.” Upon learning of this letter the Defendant instructed the title company to continue with the title search. On July 18, 1974, Defendant’s attorney wrote Plaintiff’s attorney enclosing title reports on all six properties and stating, “. . . title to the aforesaid properties appears to be good in Mr. Glass and by this letter he hereby notifies you that he will claim as liquidated damages the deposits you have made with the title company in the event you do not consummate the transaction within a reasonable time in accordance with the Earnest Money Contract.” By letter dated July 30,1974, Plaintiff’s attorney wrote Defendant’s attorney that “these contracts were repudiated by my client . Mr. Glass has attempted to consummate the contracts by executing three originals, but such was done after my client had repudiated same . My client further does not intend to close the remaining three contracts as a result of his inability to secure financing therefore.”

Plaintiff testified that the July 30 letter was without his knowledge and without his authority. He further testified that immediately upon learning of same he “chased down” Defendant and advised him the letter was in error, that he had financing, and was ready to close. This occurred within ten days of the July 30 letter. On September 20, 1974, Plaintiff’s attorney wrote Defendant’s attorney offering to make additional payment for repairs made by Defendant to some of the properties, providing the labor and material used were substantiated. Defendant made no further effort to close the transaction, and on October 30, 1974, Plaintiff filed suit to enforce specific performance.

Trial was before the court, which entered judgment for Plaintiff and filed findings of fact and conclusions of law. The pertinent findings of fact were:

1. The repudiation by Plaintiff was withdrawn before Defendant materially changed his position.
2. Defendant did not accept Plaintiff’s repudiation of the contract.
3. Subsequent to repudiation and withdrawal of the repudiation by Plaintiff, Plaintiff tendered performance and was ready, willing and able to perform.
4. Defendant refused to tender performance by failing to deliver owner’s title policies and warranty deeds as provided by the contracts.
5. Defendant repudiated the contracts.

Defendant assigned as error the court’s findings of fact as set out above, alleging “no evidence” and “insufficient evidence” as to no. 3. A “no evidence” point may be sustained only if there is a complete lack of evidence to sustain the challenged findings of fact. Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ ”, 38 Texas Law Review 361. In considering an “insufficient evidence” point we must consider all the evidence concerning the finding of fact in question and, in light of all the evidence, determine if the ruling of the court was so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Missouri Pacific Railroad Co. v. Somers, 78 Tex. 439, 14 S.W. 779 (1890).

The trial court was justified in finding a repudiation of the contract by Plaintiff when he contacted Defendant by telephone and demanded his earnest money and by the June 13 letter from Plaintiff’s attorney to the title company. That his repudiation was not accepted by Defendant is evidenced by his advising the title company to continue the title search, coupled with his attorney’s letter of June 18, 1974, demanding performance by Plaintiff. There was also evidence that on July 30 Plaintiff repudiated the contract by his attorney’s letter to Defendant’s attorney. However, there is no evidence whatever in the record that Defendant did anything to materially change his position between his July 18 letter demanding performance by Plaintiff, and the admitted conversation between the parties wherein Plaintiff testified that he told Defendant that he had financing and was ready to close. We find that this lack of evidence was sufficient to support the finding of the trial court that Plaintiff withdrew his repudiation before Defendant materially changed his position in reliance thereon. This was also sufficient to support the trial court’s finding that Defendant did not accept Plaintiff’s repudiation of the contracts. In the conversation between the parties shortly after the July 30 letter, Plaintiff testified that he told Defendant that he had financing and was ready to close the contracts. Defendant did not contradict this testimony, he merely said that he didn’t remember what the conversation was about. On September 20 Plaintiff’s attorney wrote Defendant’s attorney offering to make additional payment for any substantiated repairs made by Defendant. This was sufficient evidence to support the trial court’s finding that Plaintiff tendered performance and was ready, willing and able to perform.

The contracts in question required Defendant to deliver owner’s title policies and warranty deeds to Plaintiff. Then and only then was Plaintiff obligated by the contract to make the balance of the down payment and execute notes secured by vendor’s lien to Defendant for the balance of the purchase price. Sterling v. Apple, 513 S.W.2d 255 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ hist.). Defendant testified that he did not offer to deliver either the owner’s title policies nor the warranty deeds to Plaintiff. This testimony alone was sufficient to support the finding that the Defendant refused to tender performance by failing to deliver these items as provided by the contracts.

According to Plaintiff’s testimony, Defendant was orally requested not later than August 10 to close the contracts. He further testified that during the following month he made a number of other oral requests of Defendant to close. On September 20 Plaintiff’s attorney wrote Defendant’s attorney offering to pay for substantiated repairs. On October 3 suit was filed. During this time Defendant made no effort whatever to perform under the contract. Based upon the period of inactivity by Defendant, faced with repeated requests by Plaintiff to close, the trial court was justified in finding that Defendant repudiated the contract.

Based upon these findings, all supported by the evidence, we have a situation of (a) valid contracts, (b) repudiated by Plaintiff, (c) repudiation refused by Defendant, and (d) another repudiation by Plaintiff which was withdrawn prior to any material change of position in reliance thereon by Defendant. The obligations of performance by each party under the terms of the contract were (a) payment of earnest money by Plaintiff, (b) delivery of owner’s title policies and warranty deeds by Defendant, and (c) payment of down payment and execution of notes and security instruments by Plaintiff. It is undisputed that Plaintiff paid the earnest money requested of him. It is also undisputed that Defendant did not deliver nor offer to deliver owner’s title policies or warranty deeds as was required of him. Thus, Plaintiff was never obligated to pay the balance of the down payment and execute the security instruments. There was not a lack of performance by Plaintiff. The correctness of the trial court’s judgment is thus determined by the legal result of Plaintiff’s repudiation of the contract on July 30, followed by his retraction of same prior to any material change of position by Defendant in reliance thereon. The Restatement of the Law of Contracts Section 319, approved in Helsley v. Anderson, 519 S.W.2d 130 (Tex.Civ.App.—Dallas 1975, no writ hist.), cited by both parties in their briefs, states:

“The effect of repudiation is nullified (a) where statements constituting such a repudiation by information to that effect is given by the repudiator to the injured party before he has brought an action on the breach or has otherwise materially changed his position in reliance on them.”

Defendant complains of the trial court’s finding that interest due him was offset by the rents due the Plaintiff. Texas courts have recognized that where a vendor wrongfully breaches his contract to convey and remains in possession of the land, he must compensate the vendee for the benefit he has derived from such possession. Kress v. Soules, 255 S.W.2d 244 (Tex.Civ.App.—Austin 1953, mod. on other grounds 152 Tex. 595, 261 S.W.2d 703 (1953), and Crossland v. Hart, 234 S.W. 558 (Tex.Civ.App.—Beaumont 1921, no writ). The trial court properly determined Defendant was accountable to Plaintiff for rents due in the amount stipulated by the parties. The general rule was stated in Johnson v. Downing and Wooten Construction Co.:

“[I]n doing equity the court subtracted from the rental loss the interest lost on the money by appellee [vendor] due to the delay. Equity requires such offset . [a]s such, it is not a compulsory counterclaim nor need it be pleaded and the trial court’s action was proper as an equitable measure. See Burleson v. Burleson, 15 Tex. 423, 429 (Tex.Sup.1855)” at 480 S.W.2d 254, 258 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ).

According to the earnest money contract entered into between the parties, closing was to take place “within five days from the date title to the above property in [sic] shown in Seller as hereinafter provided .” Good title to the properties in Defendant was established on July 13, 1974, at which time Plaintiff had repudiated the contracts. Withdrawal of such repudiation was established prior to any material change in position by Defendant, on or about August 10, 1974. Defendant had a reasonable time thereafter to arrange for a closing but did not do so. By September 1, 1974, Defendant had a reasonable amount of time to act and after such time Plaintiff was entitled to rent offset by interest due the Defendant as agreed upon in the contract between the parties. The parties stipulated that the rents due Plaintiff was $15,-786.95 less $2,320 due Defendant for labor, leaving a net of $13,466.95. The contracts stipulated 9% per annum interest rate on the $101,800 balance of the purchase price, which equals $25.10 per day. From September 1, 1974 until date of trial was 1059 days. By applying simple arithmetic this court computes the interest due Defendant at $26,580.90. Defendant is therefore entitled to that amount less $13,466.95 or a net difference of $13,113.95, plus interest thereon at the legal rate from date of trial.

The judgment of the trial court, as reformed, is affirmed.

ON REHEARING

Appellee, Gary Lee Anderson, moves for a rehearing by this court asserting error in our judgment filed March 29, 1979. That decision affirmed the trial court’s order of specific performance by appellant of certain earnest money contracts, and reformed the judgment increasing the interest awarded to appellant to conform with said contracts. The trial court, in its conclusion of law, stated that appellant “is not entitled to a greater amount of interest than the amount of rents and profits due” to appellee. Ap-pellee’s position is that this court is bound by the trial court’s conclusion that the interest due appellant cannot exceed the rents due appellee.

Appellant repudiated the contracts in question, and after a reasonable amount of time to perform had passed, appellee was entitled to rent, offset by interest due the appellant as agreed upon in the contract between the parties. Johnson v. Downing and Wooten Construction Co., 480 S.W.2d 254 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ). We, however, find error in the trial court’s conclusion of law that appellant was entitled to interest under the earnest money contracts only in an amount equal to the rents due appellee.

An appellate court is bound by the findings of fact made by the trial court if they are supported by the evidence, but an appellate court is not bound by an incorrect conclusion of law made by the trial judge based upon his findings of fact. Mercedes Dusting Service, Inc. v. Evans, 353 S.W.2d 894 (Tex.Civ.App.—San Antonio 1962, no writ). No fact question arose from the evidence in respect to the interest due appellant as specified in the contracts entered into between the parties. The determination of the amount of interest due appellant was a law question for the court. Texas & N. O. R. Co. v. Dingfelder & Balish, 134 Tex. 156, 133 S.W.2d 967 (Tex.Comm’n App.1939, opinion adopted). It is a proper function of this court to correct the incorrect conclusion of law and reform the amount of interest to conform with the earnest money contracts which are ordered to be specifically performed. A decree of specific performance is required to conform substantially, if not precisely, to the terms of the contract. Carter v. Smith, 184 S.W. 244 (Tex.Civ.App.—Dallas 1916, writ ref’d). Appellee’s motion for rehearing is overruled.

Appellant’s extensive motion for rehearing has been reviewed, and finding no error, in our opinion, it is overruled.