text:
    L. W. LISTER, Appellant, v. EMPLOYERS REINSURANCE CORPORATION, Appellee.
    No. 62115.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 14, 1979.
    Rehearing Denied Dec. 5, 1979.

      David L. Grissom, Jim Richards, Crawford & Grissom, Houston, for appellant.
    Kurt T. Nelson, D. Craig Olivier, Vinson & Elkins, Houston, for appellee.
    Before COULSON, JUNELL and SALAZAR, JJ.
   JUNELL, Justice.

At the trial of this worker’s compensation case in which employee Lister sued the defendant insurance company, the jury found that Lister’s injury did not occur while in the course and scope of his employment. Judgment was rendered in favor of the insurance company, and Lister appeals claiming error in the exclusion of certain evidence by the trial court. The evidence consisted of portions of a government study dealing with the disease allegedly contracted by the plaintiff in the course of his employment. The relevant portions were excluded on the appellee’s objection that they contained opinions, conjecture and conclusions. We agree that such portions were properly excluded and affirm the judgment of the trial court.

At trial Lister attempted to prove that his condition of peripheral neuropathy was caused by working conditions at the place of his employment, the Shell Oil Refinery in Deer Park, Texas. To aid in this proof he offered into evidence a report prepared by the United States Department of Health, Education and Welfare Center for Disease Control — National Institute for Occupational Safety and Health (hereinafter the NIOSH report). The investigation for this report had been conducted at the same unit of the Shell refinery in which the plaintiff worked, and he had in fact been one of the subjects studied to determine the incidence of peripheral neuropathy in that particular unit.

Plaintiff tendered the report, except paragraph I, claiming admissibility as a government document under Tex.Rev.Civ. Stat.Ann. art. 3731a (Vernon Supp. 1978-1979). Appellee objected to this offer contending that medical and other opinions and conclusions expressed in the report rendered it inadmissible. Appellee later offered expert medical testimony to show that such opinions were subject to reasonable dispute. Portions of the report were admitted; other portions were excluded; and the court did not rule on one portion but requested the attorneys to obtain, a ruling at a later time. Appellant made no further offer of the excluded evidence and did not later obtain the ruling requested by the trial court. Appellant bases his appeal on errors claimed in the exclusion of those portions of the report, exclusion of certain expert testimony and the alleged harm resulting therefrom. A review of the excluded portions of the report reveals that they are replete with conjecture, opinion and multiple hearsay statements.

The record reveals no limited tender of evidence made by appellant of any portion. When the trial court sustained appel-lee’s objection and excluded portions of the report, it then became appellant’s duty to separate any admissible from inadmissible portions. Upon his failure to do so, there is no error in the exclusion. Luvual v. Henke & Pillot, Division of Kroger Co., 366 S.W.2d 831 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.).

Appellant contends that because the NIOSH report is a properly authenticated government document, and the requirements of article 3731a have been met, the court had no discretion to exclude it. That statute permits the introduction into evidence of official public records or certified copies of such records, and operates as an exception to the hearsay rule. The statute, however, does not abrogate the traditional requirements of relevancy, competency or materiality. Thus, properly authenticated government documents which contain hearsay, conclusions, conjecture and opinions are subject to exclusion on those grounds. Texas Dept. of Public Safety v. Nesmith, 559 S.W.2d 443 (Tex.Civ.App.—Corpus Christi 1977, no writ).

The excluded portions of the NIOSH report contain such incompetent statements. Appellant’s failure to make a limited offer of admissible portions entitled the trial court to exclude the entirety.

Appellant’s second and third points of error address the trial court’s refusal to allow his medical expert to explain to the jury the sources on which his opinion testimony was based. Appellant contends that the doctor should have been allowed to testify that the sources of his opinion were the laboratory results which were the basis of the NIOSH report. He asserts that because the expert based his opinion on evidence which would be admissible under an exception to the hearsay rule, the expert should be allowed to explain that source.

At trial the doctor was asked to explain the sources and how he went about accumulating the information. The doctor asked if he could first explain why, and the appel-lee’s objection to the testimony to follow was sustained. Out of the presence of the jury the doctor explained that he had based his opinion not on the actual NIOSH report, but on the results of original laboratory tests performed at the request of NIOSH and provided to the doctor by NIOSH upon his request. Those reports consisted of clinical observations by the consulting neurologist of the laboratory data from the hospital laboratory, and of the tests performed by two private physicians.

Appellant urges recognition of the rule that a qualified expert may relate sources on which he relied which are customarily relied on by experts in the field. We believe that to be a sound rule, but it does not help appellant in this case. The required predicate for introduction of such testimony is explained in the case of Lewis v. Southmore Saving Association, 480 S.W.2d 180 (Tex.1972). The court in that case stated that an expert may relate sources on which he relied which are generally recognized as reliable and regularly used in a trade or specialized activity by those persons engaged therein.

The court in Loper v. Andrews, 404 S.W.2d 300 (Tex.1966), explained the rationale for thus restricting medical opinion testimony. To protect the interests of the adversely affected parties, the opportunity for cross examination of the expert is an unusually important factor when the opinion is a “medical conjecture.” When the testimony is of a condition not resting on demonstrable medical facts and about which there could be genuine dispute among doctors, the other party should be given the opportunity to challenge the conclusions contained in the proffered source. Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968).

The testimony elicited out of the jury’s presence established only that he, the plaintiff’s expert, considered this laboratory data to be reliable. That testimony alone is insufficient to meet the Lewis test, particularly in light of the defendant’s expert medical testimony that the causes of peripheral neuropathy are subject to considerable dispute among doctors. Any testimony elicited earlier in connection with the introduction of the actual NIOSH report cannot be used for the attempted introduction of the laboratory test results; they are not the same source. The predicate laid in reference to the laboratory data must stand alone under scrutiny, and it fails to meet the requirements. Thus, the trial court did not err in excluding testimony on the source of the expert opinion.

The appellant’s burden on appeal is not only to show error, but to show that such error was calculated to cause, and probably did cause the rendition of an improper verdict. Tex.R.Civ.P. 434; Coleman v. Pacific Employers Insurance Company, 484 S.W.2d 449 (Tex.Civ.App.— Tyler 1972, writ ref’d n. r. e.). In the present case substantial portions of the NIOSH report were allowed into evidence by the trial court, containing statements advantageous and detrimental to both sides. Appellants’ contention that the exclusion of the original lab data made the basis of the report so prejudiced the jury as to induce an incorrect verdict is without merit. Thus, even if there were technical error in the exclusion, such error was harmless.

Judgment of the trial court affirmed.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Arnold FARBER, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Liquidator of the Northeast Bank of Houston, Texas, Appellee.
    No. A2132.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 14, 1979.

      Donald G. Ritter, Houston, for appellant.
    William A. Abernathy, Meredith, Donnell & Edmonds, Corpus Christi, for appellee.
    Before BROWN, C. J., and MILLER and PRESSLER, JJ.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a suit on a note by the Federal Deposit Insurance Corporation, Liquidator of the Northeast Bank of Houston (appellee or FDIC) against Arnold Far-ber (appellant). Trial was to the court which rendered judgment in favor of appel-lee for the full amount of the deficiency balance owing on the note along with attorney’s fees and interest. Farber appeals on the grounds that there is “no evidence” to support the trial court’s implied findings of fact or, alternatively, that the trial court’s findings were against the great weight and preponderance of the evidence.

Appellant executed a promissory note to the Northeast Bank of Houston in 1973. The payment of the note was secured by a lien on a ten acre tract of land owned by appellant. As Liquidator of Northeast Bank, appellee became the holder of the note. Joseph Ford, an employee of the FDIC, inquired as to when Farber would pay the balance due on the note, which had become delinquent. Appellant replied that he was in the process of selling the ten acre tract of land in order to pay off the debt. John Patterson, a liquidator for the FDIC, in a letter to Farber, agreed to Farber’s proposal to sell the property. After the net proceeds from the sale were applied to the indebtedness, a balance of $3,345.83 remained. Apparently thinking that the FDIC had agreed to a negotiated settlement of the note, Farber requested that the note be sent to him stamped “paid in full.” Ford responded that the FDIC did not make such an agreement. Thereafter, ap-pellee sued Farber to collect the balance owing on the note.

Since findings of fact or conclusions of law were neither requested nor filed, it must be presumed on appeal that the trial court made such implied findings as were necessary to support the judgment. Morris v. Texas Elks Crippled Children’s Hospital, Inc., 525 S.W.2d 874 (Tex.Civ.App.-El Paso 1975, writ ref’d n.r.e.). It is these implied findings that appellant complains of on appeal. Specifically, appellant urges that there was no evidence to support the trial court’s implied finding that there was a deficiency balance due and owing on the note.

In determining whether there is no evidence to support a fact finding, we must consider only the evidence and inferences which tend to support the findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Appellant contends that there had been a compromise agreement made whereby the payment of the net proceeds from the sale of the property would constitute full satisfaction of the indebtedness. During their discussions, Farber had asked Ford about a negotiated settlement. Ford replied that this was usually not done but that he would check with his superiors about it. As noted previously, Patterson had sent Farber a letter stating that Farber’s proposal to sell the property was acceptable. Furthermore, a release of lien on the property was executed by the FDIC which recited that the release was given “for and in consideration of full and final payment of all indebtedness secured by the aforesaid lien. . . . ” Appellant claims that the recital in the lien and the letter from the FDIC makes a prima facie case of a negotiated settlement and that there was no probative evidence to rebut this argument.

While we agree with appellant that there is evidence in the record to support a judgment for him, there is other evidence in the record to rebut the recital and to support the court’s implied finding. Mr. Ford testified that he had no authority to make a compromise settlement and that he never in fact agreed to such a settlement with appellant. Ford testified that the letter was written and the release was given only to allow the property to be sold free and clear to a third party. There was never any other communication from the FDIC to Farber indicating that the debt would be compromised.

Whether there had been a compromise settlement between the parties was a question of fact. Since there is sufficient evidence in the record to support the trial court’s implied finding, we must overrule appellant’s no evidence point of error.

Appellant also complains that the trial court’s implied finding that there was a deficiency balance was against the great weight and preponderance of the evidence. In deciding whether a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence in the record. As discussed above, there is sufficient evidence, even when all of the evidence is considered, that a compromise agreement between appellant and appellee had not been entered into. While Farber probably believed that such an agreement had been made with the FDIC, there is also other evidence in the record supporting a different conclusion.

From a review of the entire record we cannot say that there is no evidence to support the trial court’s implied findings or that such findings are against the great weight and preponderance of the evidence.

The judgment of the trial court is affirmed.

Affirmed.


author: McCLOUD, Chief Justice.

text:
    Clifford BROWN, Appellant, v. Ellen Hammonds BROWN, Appellee.
    No. 5331.
    Court of Civil Appeals of Texas, Eastland.
    Nov. 15, 1979.
    Rehearing Denied Dec. 13, 1979.

      Eric Eades, Jr., Eades & Eades, Gayle E. Oler, Oler & Hoffman, Dallas, for appellant.
    Thomas P. Goranson, Robert Milbank, Jr., W. Michael Byrd, Jr., Akin, Gump, Hauer & Feld, Dallas, for appellee.
   McCLOUD, Chief Justice.

This is an appeal of a default judgment divorce case. The defendant husband answered, but neither he nor his attorney appeared at trial.

On February 22, 1978, Ellen Hammonds Brown sued Clifford Brown for divorce and sought a division of the property. Defendant’s original attorney was notified in writing on April 20 that the case was set for trial on the nonjury docket for August 28. On August 9, defendant paid a jury fee and filed a “motion to dismiss” alleging that plaintiff lacked residential qualifications.. On August 10, the court ordered the case to be placed on the jury docket and set defendant’s motion to dismiss for August 30. On August 28, the court called the case and proceeded to trial, without a jury, in the absence of defendant and his attorney. At the conclusion of the trial, the court granted plaintiff a divorce and divided the property. Defendant’s motion for new trial was overruled. Findings of fact and conclusions of law were neither requested nor filed. We modify and affirm.

The rule to be applied to default judgments entered on failure of the defendant or his attorney to appear for trial was stated in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966) as follows:

The correct rule applicable alike to motions for new trial which seek to set aside default judgments entered on failure of a defendant to file an answer and those entered on failure to appear for trial, is stated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939), as follows:
A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

In the instant case, the defendant failed to properly allege a “meritorious defense." The motion fails to contain allegations of fact which in law constitute a meritorious defense to plaintiff’s cause of action. Ivy v. Carrell, supra. Furthermore, the trial court was justified in finding that the failure of the defendant and his attorney to appear for trial was intentional, and not due to accident or mistake. It is undisputed that defendant’s “new” counsel was aware on August 24 that the case would be called for trial on August 28. Defendant’s counsel testified that on August 24 he told plaintiff’s attorney that he would not be ready. No timely motion for continuance was filed. See Murray v. Dahlem, 524 S.W.2d 409 (Tex.Civ.App.— Eastland 1975, no writ); Cate v. Beene, 440 S.W.2d 389 (Tex.Civ.App.—Waco 1969, writ ref’d).

Defendant additionally asserts numerous alleged procedural errors, and attacks certain fact findings contained in the judgment. Plaintiff argues that these complaints were waived because they were not included in defendant’s motion for new trial.

Since January 1, 1978, Tex.R.Civ.P. 324 has provided in part:

A motion for new trial shall not be a prerequisite to the right to complain on appeal, in any jury or non-jury case. A motion for new trial may be filed by any party, however, and the omission of a point in such motion shall not preclude the right to make the complaint on appeal. Notwithstanding the foregoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon. A complaint that one or more of a jury’s findings have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact may be presented for the first time on appeal. • (Emphasis added)

Prior to the January 1, 1978, amendment, Rule 324 expressly provided that a motion for new trial was not required in a nonjury case, except as to complaints mentioned in Rule 325. Effective January 1, 1978, Rule 325 was repealed. Prior to the 1978 amendment, it was clear that in a nonjury case, an appellant could raise for the first time on appeal complaints attacking both the legal and factual sufficiency of the evidence to support the trial court’s expressed or implied findings of fact. Boswell v. Handley, 397 S.W.2d 213 (Tex.1965). The 1978 amendment raises some uncertainty in this regard. The amended rule now provides that, “it shall be necessary to file a motion for new trial in order to present a complaint which has not otherwise been ruled upon.” This provision appears to apply to nonjury, as well as jury, cases. The rule further states that a complaint that a “jury’s findings” have insufficient support in the evidence or are against the overwhelming preponderance of the evidence as a matter of fact may be presented for the first time on appeal. This provision could not apply to a nonjury case because there are no “jury’s findings.” In the recent case of Brock v. Brock, 586 S.W.2d 927 (Tex.Civ.App.—El Paso 1979 no writ), the court discussed the problem and held that complaints of “insufficient evidence” or “against the overwhelming preponderance of the evidence” must be, in a nonjury case, assigned as error in a motion for new trial. Because of the present language in Rule 324, we can readily understand the court’s holding. We must, however, respectfully disagree. Tex. R.Civ.P. 296 and 297 permit the filing of findings of fact and conclusions of law after the motion for new trial, if filed, has been overruled. It would, therefore, frequently be impossible to present a complaint in a motion for new trial attacking the legal or factual sufficiency of the evidence to support the court’s findings of fact. We hold that an appellant in a nonjury case may, without filing a motion for new trial, for the first time on appeal, attack both the legal and factual sufficiency of the evidence to support the court’s expressed or implied findings of fact; because, when the court renders judgment it has “otherwise ruled upon” the sufficiency of the evidence to support the controlling facts sustaining the judgment. An appellant, however, must file a motion for new trial in order to present a complaint which the record fails to disclose was ruled upon by the court. Hausmann v. Texas Savings & Loan Association, 585 S.W.2d 796 (Tex.Civ.App.—El Paso 1979, writ filed); McLemore v. Johnston, 585 S.W.2d 347 (Tex.Civ.App.—Dallas 1979, no writ).

Defendant, for the first time on appeal, complains that the trial court erred:

(1) in calling the case to trial on August 28, 1978;
(2) in calling the case to trial before hearing defendant’s motion to dismiss;
(3) in proceeding to trial without a jury; and
(4) in permitting the filing of plaintiff’s second amended petition within seven days of the date of trial.

This was a default judgment. The record fails to disclose that the defendant objected at the time of trial to any of these matters. There being no objection, the complaints were not “ruled upon,” and they cannot be raised on appeal since they were not included in defendant’s motion for new trial. See National Lloyds Insurance Company v. McCasland, 566 S.W.2d 565 (Tex.1978).

Defendant argues there is no evidence, or alternatively, factually insufficient evidence to support certain facts found by the court. In considering defendant’s no evidence points, we can consider only the evidence and inferences tending to support the findings and must disregard all evidence and inferences to the contrary. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex. 1974). We must consider all the evidence in deciding the factually insufficient evidence points. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Defendant urges that there was no evidence, or alternatively, factually insufficient evidence to support the court’s finding that the legitimate ends of the marriage relationship had been destroyed, and there was no reasonable expectation of reconciliation. We disagree.

The parties were married on June 9,1977, and the petition for divorce was filed on February 22, 1978. At the time of trial, plaintiff was “nearly sixty” and defendant was sixty-six. Plaintiff stated that defendant caused her to transfer certain assets to his name and to his company’s name. On one occasion, she had received $80,000 from a “trust distribution,” which she planned to use for the payment of taxes. She testified that defendant wanted her to give him the money, and when she gave him only $10,-000, he became upset, and shortly thereafter, he falsely accused her of being unfaithful with “many” men. She stated she was a Christian woman and her husband’s false accusations of infidelity were disturbing and cruel. Defendant’s points are overruled.

We overrule defendant’s points attacking the legal and factual sufficiency of the evidence to support the court’s finding that plaintiff was a Texas resident for six months, and a resident of Dallas County for 90 days, preceding the filing of plaintiff’s petition. Plaintiff testified that she had maintained her residence in Dallas since 1946; that she had a Texas driver’s license and a Texas voter’s registration; that she had not voted in any other state since 1946; that her automobiles were registered in Texas; and she was a member of two churches in Dallas County.

Defendant also challenges the legal and factual sufficiency of the evidence to support the court’s finding that certain personalty is the separate property of plaintiff. We do not reach these points. The property division does not have to be equal, and it will be presumed that the trial court exercised its discretion properly, and a case should be reversed only where there is a clear abuse of discretion. Bell v. Bell, 513 S.W.2d 20 (Tex.1974). The marriage was of short duration. The evidence shows that plaintiff paid for the property in question, usually with distributions from trusts in existence prior to her marriage to defendant. Courts may award personal property, whether community or separate, to either spouse. Muns v. Muns, 567 S.W.2d 563 (Tex.Civ.App.—Dallas 1978, no writ). If the division is just and fair, it is not controlling as to how the personal property is characterized. Crowell v. Crowell, 578 S.W.2d 562 (Tex.Civ.App.—Fort Worth 1979, no writ).

The judgment provides in part:

B. That Petitioner, Ellen Hammonds Brown, be awarded the following listed assets, free and clear of any claims of Respondent, Clifford Brown, and that Respondent is divested of any and all interest or claim of any kind in such listed assets:
* * * * * *
(2) The condominium located at 1810 Avenida Del Mundo ¶ 703, Coronado, California (being more accurately described in Exhibit “A” attached hereto and incorporated herein as if fully set out), such property being the sole and separate property of Petitioner, Ellen Hammonds Brown. ******
H. That Respondent, Clifford Brown, shall immediately execute and deliver to Petitioner the following documents:
******
(2) A Quit Claim Deed in the style and form of the one attached hereto as Exhibit “C”, which deed is incorporated herein by reference as if fully set out to transfer his interest, if any, in that certain piece of real estate commonly known as 1810 Aveni-da Del Mundo, ¶ 703, Coronado, California and whose legal description is described in Exhibit “A” attached hereto and incorporated herein as if fully set out.

The evidence establishes that plaintiff purchased the California condominium prior to marriage. She testified that, at the request of defendant, she signed a deed after marriage, purporting to convey her separate property to herself and defendant as “joint tenants.” Plaintiff was the grantor and one of the grantees. She did not testify that she made a gift of the property to defendant. The court found that the purported transfer was a “nullity.” The court could properly conclude that the parties improperly attempted to change by mere agreement the character of the property from separate to community. Tittle v. Tittle, 148 Tex. 102, 220 S.W.2d 637 (1949); Higgins v. Higgins, 458 S.W.2d 498 (Tex. Civ.App.—Eastland 1970, no writ).

Plaintiff concedes that the court lacked power to divest title to the California real property. Plaintiff insists, however, that since the court had in personam jurisdiction of the parties, it had power to require defendant to execute the deed to the property. We agree. Fall v. Eastin, 215 U.S. 1, 30 S.Ct. 3, 54 L.Ed. 65 (1909); Morris v. Hand, 70 Tex. 481, 8 S.W. 210 (1888); McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961); Rozan v. Rozan, 49 Cal.2d 322, 317 P.2d 11 (1957).

We have examined the property division and hold that defendant has failed to show that the court clearly abused its discretion. We have considered all points of error and all are overruled.

That part of subparagraph “(2)” of Paragraph “(B)” of the judgment, copied above, which purports to divest defendant of title to the California real property, and to award such property to plaintiff, is deleted. In all other respects the judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    GLOBE DISCOUNT CITY et al., Appellants, v. Myrtle K. LANDRY, Appellee.
    No. 6047.
    Court of Civil Appeals of Texas, Waco.
    Nov. 15, 1979.
    Rehearing Denied Dec. 27, 1979.
    Frank Gibbs, D. Craig Olivier, Vinson & Elkins, Houston, for appellants.
    Michael Y. Saunders, Rodney V. Stein-burg, Helm, Pletcher, Hogan & Burrow, Houston, for appellee.
    Before McDONALD, C. J., and HALL and JAMES, JJ.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendants Globe Discount City and Hilma Schulze from $35,-000 judgment against them in favor of plaintiff Landry, in a false imprisonment and malicious prosecution case.

Plaintiff Landry sued Globe Discount and its store detective, Ms. Schulze, for damages for false imprisonment and malicious prosecution, alleging: Plaintiff was shopping the Globe store December 8, 1975; that she took articles she intended to purchase to the checkout counter and placed them on the counter so the checkout girl could ring up the purchases; that after the articles were rung up plaintiff paid the amount the checkout girl said she owed and proceeded toward the exit; that she was forcibly stopped by defendant Schulze and accused of stealing a sweater; that she was detained and falsely imprisoned; that she was at the instance of Ms. Schulze placed under arrest by police officers; that defendants filed criminal complaint against her; that plaintiff plead not guilty, and on trial on March 2, 1976 was found not guilty; that plaintiff has suffered injury as a result of such occurrence; and damaged in the amount of $125,000.

Trial was to a jury which found:

1) Plaintiff was falsely imprisoned by the actions of the employees of Globe Discount on December 8, 1975.
2) Plaintiff was maliciously prosecuted by Globe Discount.
3) Plaintiff was damaged $35,000.

The trial court rendered judgment on the verdict for plaintiff for $35,000.

Defendants appeal on 10 points:

Point 1 asserts the trial court erred , in refusing to admit testimony of Denise Carpenter of statements made by Brenda Dur-mon and Myrtle Landry in the presence of the store detective Hilma Schulze, as operative fact evidence limited to the issue of notice to Schulze of any such statements.

Plaintiff was shopping in the Globe store on the evening of December 8, 1975; she picked up a sweater, a sack of candy and other items. Ms. Schulze, the store detective, was watching her. When plaintiff checked out her purchases at the cash register the sweater was not rung up and paid for. Ms. Schulze approached plaintiff as he was leaving the store with the unpaid for sweater, detained her, and initiated criminal prosecution for attempted theft. On trial for this offense plaintiff was found not guilty.

Plaintiff testified that when she came to the checkout counter she laid all her items on the counter; that she noted the checkout girl did not ring up her candy and called this to her attention, that the sweater was laying with the other items; that she assumed it was rung up; that she paid the bill requested by the cashier; walked away and was stopped by Ms. Schulze.

Plaintiff has steadfastly denied that she had shoplifted and denied intentionally taking the sweater without paying for same.

Ms. Schulze testified she was watching plaintiff; that plaintiff put the sweater on the counter; that she heard plaintiff say, “you forgot my candy”; that after plaintiff paid the amount rung up by the cashier she put everything except the sweater in a bag; hung the sweater across her arm and proceeded to the door; that she [Ms. Schulze] stopped plaintiff; asked her, “if there was anything she had forgotten to pay for”; that plaintiff said no; that [Schulze] said, “Ma’am what about the sweater”; that plaintiff said the sweater was hers; [Schulze] asked if she had a sales receipt for it; then plaintiff tried to give the sweater to her; and plaintiff said, “the young lady forgot to ring it up”. The sweater still had the price tag on it.

Ms. Schulze then took plaintiff to an office in the store and questioned her. Present in the room were plaintiff, Ms. Schulze, store employee Carpenter and checker Durmon. Plaintiff denied that she had shoplifted and denied intentionally stealing the sweater.

Ms. Schulze testified that when the four were in the office: Ms. Durmon, the cashier, stated that she, “asked [plaintiff] if the sweater was hers and she said yes”; that plaintiff then said, “No you didn’t say that”; that Ms. Durmon then said she looked plaintiff in the eyes and said, “Yes I did. I asked if the sweater was yours”; and that plaintiff then responded, “Yes, yes, you did say that. You did say that”.

Plaintiff testified that when she was going through the checkout the cashier [Ms. Durmon] did not ask her about the sweater; and that when she was in the office that she never admitted that she had been asked about the sweater.

Ms. Durmon was unavailable at trial.

The deposition testimony of Ms. Carpenter was offered in which Ms. Carpenter testified that she was in the [interrogation] room, that Ms. Durmon came into the room and that Ms. Durmon said to Mrs. Landry: “I asked you [at the cash register] if that was your sweater and Mrs. Landry said, yes, yes, you did”.

The offered testimony was excluded as constituting hearsay.

The testimony was not offered for the purpose of proving the truth of the statements made by Ms. Durmon; but solely as evidence that some comments were made in front of Ms. Schulze (which whether true or false) became a part of her basis for deciding whether or not probable cause existed to initiate criminal prosecution.

Article Id VATS gives a person reasonably believing another has stolen or is attempting to steal property the privilege of detaining that person in a reasonable manner for a reasonable time-for the purpose of investigating ownership of the property.

The trial court instructed the jury that a merchant can only lawfully detain a customer when he has “reasonable ground to believe that a person has wrongfully taken merchandise” that a person “is falsely arrested for the crime of theft unless there is probable cause to believe that property is obtained without the owner’s consent with the intent to deprive the owner of property”; and further that a person is maliciously prosecuted “when a criminal prosecution is pursued without probable cause and with malice; that probable cause means the existence of such facts and circumstances as would excite a reasonable belief in a reasonable mind that the person charged was guilty of the crime for which he was prosecuted”; and further that a person is not guilty of shoplifting unless “that person removes property with the intent to fraudulently take and deprive the owner of the value of the property”.

Thus, Ms. Schulze, to cause the detention (and imprisoning) of plaintiff to be false; and the prosecution of plaintiff to be malicious, had to act without probable cause, and the existence of probable cause depended upon a reasonable belief from the facts and circumstances that the plaintiff was guilty.

In such a case the deposition testimony of Ms. Carpenter was admissible. Where the question is whether a party has acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence, and not hearsay. McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442; Allstate Ins. Co. v. Godwin, Tex.Civ.App. (1 Houston) NWH, 426 S.W.2d 652; Texas Employers Ins. Assn. v. McDonald, Tex.Civ. App. (Austin) Er.Ref., 238 S.W.2d 817.

Ms. Schulze testified to the jury that Ms. Durmon, the cashier, stated in the interrogation room that she asked plaintiff at the checkout if the sweater was hers and plaintiff said yes. Plaintiff testified that Ms. Durmon did not ask her about the sweater at the checkout, and that she had never admitted that she had been asked about the sweater. Determination of Ms. Schulze’s probable cause, depending upon a reasonable belief by her of plaintiff’s intentionally taking the sweater, was before the jury. They were entitled to the evidence of Ms. Carpenter substantiating Ms. Schulze in making that determination. We think the excluded evidence was crucial and harmful, and that point 1 must be sustained and requires a reversal of the case.

Points 2 through 6 are no evidence points concerning Issues 1 and 2 and are overruled.

Points 7 through 10 complain of the charge and are not reached.

REVERSED & REMANDED.


author: CARVER, Justice.

text:
    TREASURE CITY, Appellant, v. Roy STRANGE, Appellee.
    No. 19925.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 20, 1979.
    Rehearing Denied Dec. 20, 1979.
    Stanley M. Kaufman, Herbert Garon, Jr., Oster & Kaufman, Dallas, for appellant.
    John H. Cochran, Dallas, for appellee.
    Before GUITTARD, C. J., and CARVER and STOREY, JJ.
   CARVER, Justice.

Treasure City, a retailer, appeals from a jury verdict awarding Strange, a shopper, actual and exemplary damages for false imprisonment. We reverse and remand because the jury, during deliberation, considered matters outside the record resulting in an unfair trial.

The jury found that: (1) Treasure City did not have reasonable cause to detain Strange; (2) that Strange suffered mental anguish, humiliation and damage to his reputation in the amount of $1,500; (3) that the employees of Treasure City acted with malice; and (4) that Treasure City should pay $8,000 exemplary damages. Judgment was entered on the verdict. On Treasure City’s amended motion for new trial, the foreman and three additional jurors testified regarding the jury’s deliberations. The amended motion for new trial upon jury misconduct, and other points, was overruled and Treasure City has appealed.

Treasure City urges that the trial court erred in overruling its amended motion for new trial because the fact of jury misconduct is the only conclusion supported by the record and the legal conclusion of probable harm from such misconduct is compelled by precedent. We agree. In Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943), our supreme court held that jury misconduct, as a ground for new trial, requires a fact finding that the misconduct occurred and a legal conclusion that the misconduct was of such a nature and degree that a fair trial has probably been denied. In reviewing the denial of a new trial, the fact finding of the trial court is tested by the sufficiency of the evidence; however, the legal conclusion of probable harm may be assessed by the reviewing court unfettered by the ruling of the trial court. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259 (1944). The testimony of the jurors that their verdict was unaffected by the misconduct is without force or effect and may not be considered by the court in passing upon the question of probable injury. City of Houston v. Quinones, supra. If the evidence offered relative to the fact of misconduct is conflicting, the finding of the trial court is binding on review; however, if the evidence is conclusive, the reviewing court is not bound by ruling of the trial court contrary to the conclusive evidence. Roming v. McDonald, 514 S.W.2d 129 (Tex.Civ.App. — El Paso 1974, writ ref’d n. r. e.). Nor is the reviewing court bound by a fact finding of the trial court contrary to the overwhelming weight and preponderance of the evidence. Triangle Cab Co. v. Taylor, 190 S.W.2d 755 (Tex.Civ.App.—El Paso 1945), affirmed, 144 Tex. 568, 192 S.W.2d 143 (1946).

Examining our record with these rules in mind, we find that the foreman and one additional juror testified that during the deliberations the jurors discussed (1) whether Treasure City or an insurance company would pay any money awarded; (2) whether the attorney for Strange had a contingent fee contract and would get one-third of any money awarded; (3) whether any money awarded would be reduced by taxes; (4) whether Strange, a black man, had “gotten a fair shake”; (5) whether two days lost wages to try this case and another day lost to giving a deposition, and tripled, was a better way to assess damages than to follow the court’s charge; and (6) that during deliberation on exemplary damages, juror Mrs. S_ told the other jurors “she had personal reasons to give as much money possible to Mr. Strange.” A third juror, summoned by the appellee, when examined as to these several events did not deny they occurred but only testified that he did not remember them occurring. A fourth juror, summoned by the appellee, when examined on these several points recalled only something about attorney’s fees and wages being discussed but testified that extended discussion was cut off by the foreman. This juror could not recall any other of the remaining points being discussed. We conclude that from this record the fact of misconduct is established in that the testimony of two jurors is full and explicit and the misconduct is not denied by the remaining jurors, just unrecalled. Therefore, the conclusion drawn on the fact of misconduct by the trial court on this record is not binding on the reviewing court. Roming v. McDonald, supra.

Since we conclude that jury misconduct has been shown, we must determine if probable harm, to a degree denying a fair trial, has occurred. In Crystal Palace Co. v. Roempke, 227 S.W. 230 (Tex.Civ.App.—Galveston 1920, no writ), the court condemned the jury’s departure from the evidence and the charge to consider attorney s fees, hospital charges, and doctor’s bills in reaching their verdict. In Lake Worth Amusement Co. v. Maples, 36 S.W.2d 1072 (Tex.Civ. App.—Ft.Worth 1931, no writ), the court condemned the jury’s departure from the evidence and the charge to consider loss of earnings, hospital bill and ambulance charge in reaching their verdict. In Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462 (1943), the court condemned the jury’s consideration of the possibility that a party carried insurance to relieve himself against any judgment rendered. In White Cabs v. Moore, 146 Tex. 101, 203 S.W.2d 200 (1947), the court condemned the jury’s discussing how much attorney’s fees would have to be paid from any amount awarded. In City of San Antonio v. McKenzie Construction Co., 136 Tex. 315, 150 S.W.2d 989 (1941), the court condemned a juror’s announcement to rest of the jurors that he had preconceived a view in the case and would not participate in any discussion contrary to that view which was in favor of one of the parties. Coincidentally, this juror had written a letter seeking a favor from the party whose side he was taking and the other jurors learned of the letter. The remaining juror then used a threat to expose the letter requesting the favor in order to reach a verdict in the case. The supreme court stated in its opinion:

To our minds, a verdict obtained under the above circumstances ought not to stand. Our Constitution guarantees a trial by a fair and impartial jury. This means that every member of the jury must be a fair and impartial juror. We think that no court can say beyond a reasonable doubt that, under the circumstances of this case, Slavik was free to act as an impartial juror, and that he did so act. 150 S.W.2d at 993.

We believe this expression of our supreme court condemns the verdict of the jury where one of the members acted on “personal reasons” rather than on the evidence and the charge, and another member acted upon the color of either party’s skin. We conclude that this record compels the legal conclusion that the misconduct of the jury was of such a nature and degree that a fair trial to appellant has been denied. In Scoggins v. Curtiss & Taylor, 148 Tex. 15, 219 S.W.2d 451 (1949), three acts of misconduct were before the court for assessment as to probable harm. Justice Smedley acknowledged that each act, considered separately, was difficult to assess but that when all of them are taken together “it reasonably appears that injury to the petitioners was probably caused by them and that petitioners did not have the impartial trial by jury to which they were entitled.” 219 S.W.2d at 454. Likewise we conclude that the six acts of misconduct reflected in our record leave no doubt of the appellant’s injury in this case resulting in a denial of a fair trial. Appellant’s points 1 and 2 are sustained and this cause is reversed and remanded.

Appellant by his points 3, 4 and 5 complains of the jury’s finding of malice and the assessment of exemplary damages urging that there was no evidence or, in the alternative, insufficient evidence to support the jury’s findings. Inasmuch as a new record must be offered to submit these issues on retrial, no opinion will be expressed on these points.

Reversed and remanded.


text:
    GILLER INDUSTRIES, INC., Appellant, v. CONSOLIDATED CASTING CORP., Appellee.
    No. 20055.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 21, 1979.

      Stephen R. Bishop, The True Firm, Dallas, for appellant.
    Richard H. Elliott, Day & Elliott, Dallas, for appellee.
    Before GUITTARD, C. J., and ROBERTSON and CARVER, JJ.
   CARVER, Justice.

This is an appeal by Giller Industries, Inc., from a summary judgment granted in favor of Consolidated Casting Corporation in its suit on a sworn account. The principal questions presented by the appeal are (1) whether, by his Amended Original Answer containing inconsistent, alternative pleas, Giller had filed a “sworn denial” in accordance with Tex.R.Civ.P. 185 and 93(k), and (2) whether Giller’s affidavit filed in contravention of Consolidated’s motion for summary judgment, which briefly alleged a failure of consideration in that the parts did not conform to the purchase order and hence were defective, was merely concluso-ry, or was sufficient to raise a fact issue. We hold that the inconsistency of alternative pleas of Giller does not destroy his sworn denial plea, and that Giller’s affidavit, absent an objection, is sufficient to raise a fact issue. Consequently, we reverse and remand.

Consolidated sued Giller to recover on the sale of metal castings on an open account. Giller, in his Amended Original Answer, pleads first that “each and every item in plaintiff’s sworn account, which is the basis of plaintiff’s action, is not just or true.” Giller’s answer additionally pleads that the parts were defective and did not meet the specifications of the purchase order, and he seeks to recover the costs incurred in the inspection and rejection of the parts. Consolidated Casting claims that these additional pleas amount to alternative and inconsistent defenses which would render the “sworn denial” ineffective under the reasoning of Solar v. Petersson, 481 S.W.2d 212 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ) and Golub v. Nelson, 441 S.W.2d 220 (Tex.Civ.App.—Houston [14th Dist.] 1969, no writ). We do not agree. Although a verification must be positive and unequivocal, we find no inconsistency with respect to Giller’s pleadings under Tex.R.Civ.P. 185. In Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860 (Tex.1979), our supreme court recently held, in an analogous case, that there was no valid reason why alternative pleadings of “denial” and “failure of consideration” may not be had in an answer to a suit on a sworn account. Here, Consolidated’s petition, as well as affidavit in support of its motion for summary judgment, re-fleets that its account arose from Giller’s purchase order calling for 10,000 “Investment Cast Crowfoot Wrench Heads per your quote No. 14666 and per samples submitted 5/26/76. EXCEPTION: Shank portion of tool to be modified per our order No. 5735 dated 6/2/76” [emphasis added]. Gil-ler’s answer under oath denies the account and consistently further pleads the non-conformity to sample. Additionally, Giller pleads it suffered cost and expense in determining the non-conformity and it is this cost and expense Giller seeks to recover. We conclude that a sworn denial plus nonconformity with sample in our case is not an inconsistent pleading under Rizk, nor does the addition of a plea for the cost of ascertaining the non-conformity with sample produce an inconsistency with the sworn denial of the account.

The next question is whether Gil-ler’s affidavit in answer to Consolidated’s motion for summary judgment is sufficient to raise a fact issue. Giller’s affidavit alleges that the parts were defective and failed to meet the specifications of the purchase order. Consolidated Casting contends that this is a mere conclusion that does not rise to the level of admissible evidence. We disagree. While no precise line may be drawn between an admissible statement of fact and an inadmissible opinion or conclusion, we find that testimony as to conformity with sample is admissible as evidence of fact for it is necessarily based on sensory data selected, summarized and interpreted in order to be communicated. This is the classic instance of “composite fact” approved in Carter v. Texas Co., 126 Tex. 388, 87 S.W.2d 1079 (1935), as well as “shorthand rendering of the facts” approved in Cooper v. State, 23 Tex. 331 (1859). This court in Nichols v. Seale, 493 S.W.2d 589 (Tex.Civ. App.—Dallas 1973), rev’d on other grounds, 505 S.W.2d 251 (Tex.1974), in an opinion by our Chief Justice Guittard addressed this distinction and summarized the rule as follows:

[I]f the data upon which the inference is based are so numerous, complicated, or evanescent [so] that they cannot be communicated to the minds of the jurors in such a manner as to give them the knowledge possessed by the witness, the inference is receivable as a “shorthand rendering of the facts.” 493 S.W.2d 594.

We conclude that Giller’s affidavit that the cast wrench heads were defective and did not meet the specification “per sample” was admissible and raised an issue of fact requiring that the trial court overrule appel-lee’s motion for summary judgment.

Reversed and remanded.


author: GUITTARD, Chief Justice.

text:
    D. L. N., Appellant, v. The STATE of Texas, Appellee.
    No. 20106.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 21, 1979.

      Herbert Green, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, Asst. Dist. Atty., Dallas, for ap-pellee.
    Before GUITTARD, C. J., and AKIN and ROBERTSON, JJ.
   GUITTARD, Chief Justice.

Appellant, a fifteen-year-old boy, was found by a jury to have engaged in deviate sexual intercourse with a three-year-old girl and was placed on probation by the juvenile court. He complains on this appeal that he was denied a fair trial because of improper admission of evidence, that the evidence is insufficient to support the verdict, and that the only eye-witness, an eight-year-old child, was incompetent to testify. We hold that the witness was competent, but we conclude that appellant was prejudiced by improper evidence. Consequently, we reverse and remand for a new trial.

Appellant’s first point of error is multifarious and too general since it complains merely that the court erred in failing to give appellant a fair trial. On looking at the discussion under this point, however, we find several instances in which clearly prejudicial evidence was presented to the jury and that the cumulative effect of this evidence was such as to deny appellant a fair trial.

The first of these instances was the testimony of the little girl’s mother. She testified that she had heard the child sing a song indicating that she had participated in an oral sex act. Appellant’s objection to this testimony as hearsay was overruled. Over further objection, the mother testified that she questioned the child about the matter and the child replied “that it was in his zipper. It was in his britches.” Appellant’s objection to this evidence was sustained, and the court instructed the jury to disregard the answer, but overruled appellant’s motion for mistrial.

The mother further testified that after discussing the matter with the child’s father, they decided to arrange a meeting with appellant’s mother, and they asked that the minister of appellant’s family be present. Appellant objected to evidence of the meeting as being hearsay and also as “irrelevant, immaterial, inconsequential, and after the fact.” After these objections were overruled, the girl’s mother testified that the meeting took place and named the persons present.

The girl’s father also testified concerning the meeting. He said that the child was present and that he and others asked her questions. At this point appellant’s hearsay objection was overruled. The father then testified that he asked the child to demonstrate what had happened, and she responded by pulling up her dress and saying “He kissed me right there.” When asked what he made her do, she went over to appellant, put her head in his lap and tried to undo his pants. After this testimony was given, appellant’s counsel objected that the scene “took place somewhere else,” that the child was forced to do something by her father, that nobody was under oath, and took place outside the courtroom, and asked the court to instruct the jury to disregard the evidence. These objections were overruled.

The minister in question was also called to testify. Without any objection other than that there was “no proper predicate” and that the people at the meeting were not sworn, the minister testified concerning what happened at the meeting, including the demonstration by the child. On cross-examination, appellant’s counsel brought out the same testimony again.

On redirect examination the minister was asked whether the responses of the little girl at the meeting were appropriate for a child of her age. Over appellant’s objection that this question called for a conclusion of the witness and that the witness was not qualified as an expert, the minister was permitted to testify that he was “quite shocked” at her reactions and performance. The court overruled appellant’s objection that the answer was not responsive.

Another witness called by the state was a police officer of the city of Dallas, who testified that he was an investigator in the child-abuse section. He testified that appellant was the suspect in the case, and that he had talked to the little girl, her mother and other relatives. When asked what investigative steps he took other than talking to witnesses, he replied that appellant was given a polygraph test. Appellant objected and moved for a mistrial on the ground that the witness had “said the magic word polygraph.” The objection and motion were overruled. The officer was further permitted to testify, over appellant’s hearsay objection, that as a result of his investigation he had filed a charge of “indecency with a child” against appellant.

None of the foregoing evidence, in our view, was competent to prove the delinquent conduct alleged, since all of it (except that concerning the polygraph test) depended on assertions by the child and conduct by her that was interpreted by her parents and others as indicating what had occurred between her and appellant. As such, it was clearly hearsay, and was not within any exception to the hearsay rule. Byrd v. State, 89 Tex.Cr.R. 371, 231 S.W. 399 (1921) (testimony that complainant had pointed out defendant). Although a hearsay statement by a small child may be admitted as res gestae, the usual requirements of res gestae declarations must be shown, such as a spontaneous utterance made under the immediate influence of an exciting event. City of Houston v. Quinones, 142 Tex. 282, 177 S.W.2d 259, 262-63 (1944); Bennett v. State, 382 S.W.2d 930, 931 (Tex.Cr.App.1964); Oldham v. State, 167 Tex.Cr.R. 644, 322 S.W.2d 616, 619 (1959). Those requirements were not met in this case.

There can be no pretense here that the evidence was admissible for some purpose other than to prove the delinquent conduct alleged, such as to explain the actions of the child’s parents after the event. Those actions are immaterial to the only material issue, namely, the alleged delinquent conduct itself. The obvious purpose of presenting this incompetent evidence was to convince the jury that the alleged delinquent conduct occurred by showing that the child’s parents and the police investigator believed, and had good reason to believe, that it occurred. Because of the highly prejudicial nature of this incompetent evidence, it cannot be dismissed as harmless. We recognize the difficulty of obtaining competent evidence in a case involving abuse of a small child. Nevertheless, we know of no exception to the rule that an adjudication of delinquency, like a conviction of crime, must be based on competent evidence. The Family Code expressly provides that at an adjudication hearing, only material, relevant, and competent evidence may be considered. Tex.Fam. Code Ann. § 54.03(d) (Vernon 1975).

The state contends that even if the evidence above recited was incompetent, appellant cannot complain because he failed to make proper objections to some of it and he went into the same matters himself on cross-examination. After reading this record, we are convinced that appellant should not be held to have waived the incompetency of this evidence because of the inadequacy of his counsel’s objections. Repeated objections to the hearsay were made; some were sustained and others overruled. Several motions for mistrial were made and overruled. Failure to repeat objections to similar evidence may not be a waiver when previous objections have been overruled. Brown v. Masco Corp., 576 S.W.2d 105, 107 (Tex.Civ.App.—Beaumont 1978, writ ref’d n. r. e.); Crispi v. Emmott, 337 S.W.2d 314, 318 (Tex.Civ.App.—Houston 1960, no writ). Neither is an objection waived by cross-examination concerning matters previously admitted over objection. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99, 104 (1953).

Perhaps the most damaging incompetent evidence was that of the police officer. He was not a witness to the alleged delinquent conduct, and the only apparent purpose of his testimony was to convince the jury that his investigation had led him to believe that appellant was guilty. Of course, his investigation, based on hearsay, was not competent to prove the act charged. Although the officer did not state the result of the polygraph test, the inference for the jury to draw was clear, since the officer testified that he filed the charge after appellant took the test. His testimony about the test was given in direct response to a question by the prosecutor inquiring what investigative steps he took other than talking to witnesses. Thus, the record shows a deliberate strategem by the prosecutor to get before the jury a highly prejudicial item of evidence known to be incompetent. This incident in itself constituted reversible error under criminal justice standards. Nichols v. State, 378 S.W.2d 335, 336-38 (Tex.Cr. App.1964); see Reed v. State, 522 S.W.2d 466, 467-70 (Tex.Cr.App.1975). We see no reason to apply a different standard to a juvenile.

We regard as inapplicable those decisions holding that a statement concerning a polygraph test may not be reversible error if made in an unresponsive answer to a question calculated in good faith to elicit proper testimony, and the court gives an adequate instruction to disregard the statement. Renesto v. State, 452 S.W.2d 498, 500 (Tex.Cr.App.1970); Roper v. State, 375 S.W.2d 454, 456-57 (Tex.Cr.App.1964). In this case the objection and the motion for mistrial were both overruled. The objection may have been inartful, but it was sufficient to convey to the court the idea that the word “polygraph” was inflammatory and prejudicial. We conclude that no further objection was required because an objection would only have drawn the jury’s attention to the prejudicial evidence and no instructions by the court. could have removed its harmful effect. Nichols v. State, 378 S.W.2d 335, 338 (Tex.Cr.App.1964).

In view of the admission of all this incompetent and prejudicial evidence, we sustain appellant’s first point complaining that the court erred in failing to give him a fair trial. The specific evidence complained of under this point is the hearsay testimony of the child’s mother, the hearsay testimony of the father, the hearsay testimony of the minister, and the officer’s testimony that appellant was given a polygraph test before the charge was filed against him. Since there is no suggestion here of even a tenuous theory on which any of this evidence might be admissible, we can only conclude that appellant is correct in asserting that the record demonstrates a conscious attempt by the prosecutor to secure a delinquency adjudication on the basis of incompetent evidence. We reverse the case because of the trial court’s error in permitting the case to be tried in this manner.

Appellant complains in his second point that the evidence is insufficient to convict appellant of the delinquent conduct alleged. This point is closely related to the third, which complains that the court erred in permitting an eight-year-old child, who purported to be an eye-witness, to testify concerning what she had seen.

We cannot say that the judge abused his discretion in permitting the child to testify. Although she may not have fully understood the nature and obligation of an oath, and she equivocated in her statements about whether she would be punished if she lied, her statements were sufficient to justify the judge in concluding that she knew truth from falsehood and understood that she had an obligation to tell the truth. Consequently, we hold that her testimony was properly admitted. See Provost v. State, 514 S.W.2d 269, 270 (Tex. Cr.App.1974); Fields v. State, 500 S.W.2d 500, 502-03 (Tex.Cr.App.1973).

Whether this testimony is sufficient to support the verdict is a more difficult question. The witness testified that she saw appellant licking the little girl between the legs, but she did not mention the act of oral sex by the child which the other witnesses said had been related to them.

There was one other item of admissible evidence, namely, testimony by a fourteen-year-old brother of the little girl that appellant had made statements to him indicating that appellant had engaged in deviate sex acts with the child, but without specifying the times or places. Whether these tw.o items of admissible evidence would have been sufficient to convince the jury in the absence of the incompetent evidence in this record is a matter of speculation. Apparently, the prosecutor concluded that corroboration was necessary. It seems likely to us that the incompetent evidence may have had more weight with the jury than the two items of evidence that were admissible. Certainly, we cannot say that the admissible testimony was so strong that the incompetent evidence was merely cumulative and probably did not influence the jury. Consequently, we reverse the judgment and remand for a new trial.

Reversed and remanded.


author: JUNELL, Justice.

text:
    Rodolfo de la FUENTE, Appellant, v. TEXAS GENERAL INDEMNITY COMPANY, Appellee.
    No. B2167.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 21, 1979.

      Don R. Caggins, Houston, for appellant.
    Robert D. McPherson, Houston, for appel-lee.
    Before COULSON, SALAZAR and JU-NELL, JJ.
   JUNELL, Justice.

This is a worker’s compensation case. On December 28, 1976, Rodolfo de la Fuente, appellant, was injured while working for American Building Maintenance Company. Texas General Indemnity Company, appel-lee, was the worker’s compensation insurance carrier. At the trial of appellant’s suit against the carrier the jury found the injury produced no total incapacity but produced partial incapacity from December 28, 1976, to August 16, 1977. The jury also found appellant’s average weekly earning capacity during the period of partial incapacity to be $110.00. The parties had stipulated the average weekly wage of $239.71 for the year preceding the date of injury. They also stipulated that the insurance company had paid $770.00 to appellant in weekly compensation benefits. The trial court rendered judgment for appellant in the sum of $1,771.00. This was the proper amount under the stipulations and the jury verdict.

In this court appellant contends that the jury findings of partial incapacity and no total incapacity are contrary to the greater weight and preponderance of the evidence.

Whether an employee is totally or partially incapacitated is usually a question for the jury. Aetna Casualty & Surety Company v. Brewer, 411 S.W.2d 629 (Tex. Civ.App. —Amarillo 1966, writ ref’d n. r. e.); Thompson v. Travelers Insurance Company, 449 S.W.2d 846 (Tex.Civ.App.—Houston [14th Dist.] no writ).

In Thompson, supra, there was competent and contradictory evidence as to the origin and severity of the plaintiff’s condition. There was also evidence of past injuries, some work related and some not. This court held in that case that the undisputed facts and the conflicting evidence introduced provided an adequate record, as a whole, from which the jury could reasonably find that the plaintiff’s accident made the basis of that suit was not a producing cause of any total incapacity.

In the case now before this court there was conflicting evidence from both medical and lay witnesses concerning the extent and duration of incapacity of Rodolfo de la Fuente. There was also evidence of past injuries.

We have examined the record as a whole, and we hold that the jury finding of no total incapacity is not contrary to the greater weight and preponderance of the evidence.

There was testimony by two doctors that no permanent disability resulted to appellant from the claimed injury. One of these doctors was selected by the insurance company. The other was selected by appellant’s family doctor. In the opinion of one of these experts appellant was able to return to work without any restrictions by March 16, 1977. The other doctor stated that in his opinion the appellant could return to work as a truck driver by May 23, 1977 but should not do heavy lifting. Neither of these doctors testified that in his opinion appellant’s incapacity was ever total.

A third doctor, appellant’s family doctor, testified that appellant had some permanent incapacity from his injury, but even this doctor never testified that the plaintiff was ever totally incapacitated. The family doctor testified that in his opinion appellant was incapable of doing work as a truck driver and as a welder. This was work which appellant actually had done from August, 1977, until the time of the trial. In the opinion of the family doctor if appellant had done such work, it could mean that he either did not have a significant back problem or that he had a high pain tolerance.

There was other evidence raising questions of appellant’s credibility regarding his complaints. In at least one doctor’s opinion the subjective complaints were not consistent with the objective findings.

The jury, in weighing all the conflicting evidence, was entitled to make the findings of no total incapacity and of partial incapacity; and such findings will not be set aside as contrary to the greater weight and preponderance of the evidence.

Even if the jury findings were contrary to the greater weight and preponderance of the evidence, reversal would not follow in this case because appellant clearly has suffered no harm from the findings. Appellant’s only contention here is that the evidence showed that appellant was totally incapacitated from December 28, 1976, to August, 1977. The trial court’s judgment awarded compensation benefits at the maximum rate under the law for the period from December 28, 1976, to August 16, 1977. This was proper under the findings of partial incapacity. Appellant could not have been awarded more if the jury had found total incapacity during such period of time. Therefore, under Texas Rule of Civil Procedure 434 any error in basing the amount of compensation benefits on the findings of partial incapacity was harmless and would not require reversal.

In appellant’s remaining point he contends that the jury finding of an average weekly wage earning capacity of $110.00 during the period of partial incapacity conflicts with the findings of partial incapacity because the average weekly wage paid to appellant before the injury was $110.00. This point has no merit. While the appellant testified at one point that at sometime during his employment at American Building Maintenance Company he earned $110.00 a week, it was clear from other testimony of appellant that such amount was not his average weekly wage during the year before the accident. Furthermore, the parties stipulated that the average weekly wage for the year before the accident was $239.71. Under the evidence and the stipulation there was no conflict in the jury’s findings. Therefore, this point of error is overruled.

We find no merit in any of the points of error urged by appellant and affirm the judgment of the court below.


text:
    Marie G. JONES, C.P.A., Appellant, v. Jose MENDEZ, C.P.A., Appellee.
    No. A2186.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 21, 1979.
    Rehearing Denied Dec. 12, 1979.

      F. Clinton Gambill, II, Allen B. Daniels, Houston, for appellant.
    T. D. Sullivan, Coppock & Teltschik, Houston, for appellee.
    Before BROWN, C. J., and MILLER and PRESSLER, JJ.
   J. CURTISS BROWN, Chief Justice.

Jose Mendez (appellee) sued Marie G. Jones (appellant) to recover under a contract of sale. The case was tried to the court and judgment was rendered for appel-lee.

In 1970 the parties to this suit entered into an accounting partnership pursuant to a written partnership agreement. This partnership was dissolved in 1973 by way of a partnership dissolution agreement. The parties also executed a contract of sale in regards to certain accounts of the partnership. Under this contract, Jones agreed to pay Mendez a certain percentage of all collections on these accounts from January 1, 1974 until December 31, 1976. After the billings through July 31, 1974, appellant refused to pay appellee any money because of alleged modifications of the contract. Appellee thereafter filed suit on the contract.

Appellant urges in her first point of error that under the terms of the contract as allegedly modified, she was not required to continue making payments. Paragraph three of the contract states:

Buyer agrees that in the event Seller returns to the Houston area prior to May 31,1974, any or all of the accounts listed in Schedule “A” will be considered accounts of the Seller, and their files turned over to him. Seller will at that time refund to Buyer all monies paid to him for these accounts. In the event any account or accounts prefer to remain with Buyer, no refund on these accounts is to be made by Seller to Buyer, and no further payments as referred to in paragraph 2 will be required by Buyer.

Appellant testified that the date in this paragraph was extended by mutual agree-mént to August 15, 1974. Jones also offered into evidence a letter from her to Mendez, which she claimed to be evidence of the extension of the date. She testified that Mendez returned to Houston before August 15,1974 and contacted several of his former clients about regaining their business. Thus appellant contends that she did not have to pay Mendez any more on those accounts which elected to remain with appellant.

However, the letter was merely an offer to extend the agreement and not a confirmation of the modification. The letter stated: “In accordance with Paragraph three of our contract of sale, I am willing to extend the date of your return to Houston to August 15, 1974. . . .” Furthermore, appellee testified that he never agreed to such an extension. Since this is a non-jury case, we cannot reverse if there is evidence of probative force to support the judgment. Durr v. Newman, 537 S.W.2d 323 (Tex.Civ.App.-El Paso 1976, writ ref’d n.r.e.). Appellant’s first point of error is overruled.

Appellant also contends that there was no evidence or alternatively, that there was insufficient evidence regarding the damages to support the court’s judgment. The basis of appellant’s complaint is that plaintiff’s exhibit number four was hearsay and thus could not support the judgment. This exhibit was a summary of appellant’s answers to interrogatories, prepared by ap-pellee’s counsel. The summary contained the amounts of money collected from the accounts in the contract of sale and the amount remitted to appellee. Appellant testified that the figures in the summary were accurate and correct. A summary of voluminous records may, in the discretion of the trial court, be admitted into evidence to expedite the trial and aid the trier of fact. Texas Warehouse Co. of Dallas, Inc. v. Spring Mills, Inc., 511 S.W.2d 735 (Tex.Civ. App.-Waco 1974, writ ref’d n.r.e.). All of the tests for admissibility of summaries were met: the underlying records were voluminous, admissible, and made accessible to the opposing party. Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80 (Tex.Sup.1976). Indeed, her answers to the interrogatories were based on records and books in her possession. There can be no . hearsay objection when the party admits to the accuracy of the exhibit. See Kulms v. Jenkins, 557 S.W.2d 149 (Tex.Civ. App.-Amarillo 1977, writ ref’d n.r.e.). The summary was properly admitted and is sufficient probative evidence to support the judgment awarding damages to appellee.

Judgment of the trial court is affirmed.

Affirmed.


author: MILLER, Justice.

text:
    Elizabeth Ann HARBOUR, Appellant, v. William T. HARBOUR, Sr., Appellee.
    No. A2212.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Nov. 21, 1979.
    Rehearing Denied Dec. 19, 1979.

      G. Allen Price, Houston, for appellant.
    Robert C. Floyd, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   MILLER, Justice.

This is an appeal from a final order of the trial court denying a post-judgment bill of discovery on the ground that the subject judgment had been discharged in bankruptcy and was therefore no longer enforceable. We affirm.

In the March 17, 1972, decree of divorce of appellant and appellee, appellant was awarded a $25,000.00 judgment as part of the court-ordered division of the community property of the parties. On May 11, of the same year appellee filed a petition in bankruptcy in which he listed as a debt of the estate the $25,000.00 judgment. His divorced wife appeared in bankruptcy court, filed a claim for the judgment, and received a liquidating dividend of $894.31 upon his discharge from bankruptcy on July 12, 1972.

On February 23, 1979, six and one half years later, appellant filed a bill of discovery claiming that the judgment was unpaid. On appellee’s motion for protection, the court entered the order referred to above denying discovery and declaring the $25,000.00 judgment unenforceable.

Appellant, in her sole point of error, contends that under the rationale of In re Nunnally, 506 F.2d 1024 (5th Cir.1975) the judgment debt was not a dischargeable debt within the meaning of Section 17 of the Bankruptcy Act of 1898. It is therein provided that among the debts which are not subject to discharge “are [those] for alimony due or to become due, or for maintenance or support of [a] wife . . . .” Bankruptcy Act § 17(a), 11 U.S.C. § 35(a) (1970).

Despite the Texas Supreme Court’s holding in United States v. Stelter, 567 S.W.2d 797, 798 (Tex.Sup.1978), that ‘“(a)limony’ after divorce, as such, is not permitted in Texas,” appellant urges that the Nunnally case controls the issue. There the court held that a property division may be a substitute for alimony and hence be non-dischargeable in bankruptcy. Stating that “. . .we should not be bound by the label which the state places on a decree; we must look to its substance”, 506 F.2d 1024, 1027, the federal appellate court held that in that case the divorce award fell within the exception from discharge contained in Section 17.

It is interesting, if not decisive, to note that the Nunnally case originated as an appeal of the decision of the referee in bankruptcy, while in the case at hand the bankruptcy court’s-decree was unchallenged for over six years prior to the institution of the discovery proceedings.

It is generally recognized “that a property settlement agreement between spouses is dischargeable in bankruptcy, at least where it is truly or substantially a property agreement, and not an agreement for alimony, support or maintenance.” An-not. 74 A.L.R.2d 758 (1960). Therefore, even under Nunnally, when a divorced spouse asserts that the claim has — or has not — been discharged in bankruptcy the order of the divorce court must be examined to determine whether the judgment comprises solely a property division or also includes an obligation to support. In re Smith, 436 F.Supp. 469 (N.D.Ga.1977). Had appellant contested the dischargeability of the judgment in the bankruptcy court in 1972, she would have had the burden of proving that the $25,000.00 debt was an obligation in the nature of alimony, support or maintenance. Bankruptcy Rule 407. She should have no less burden in the district court when asserting the continued viability of a discharged judgment. She has not discharged this burden. There is nothing in the record other than the March 17, 1972, divorce decree that is evidentiary on the issue. This decree indicates clearly that the $25,000.00 judgment was an integral part of the division of the community estate of the parties. Nothing therein smacks of alimony. The trial court did not err in sustaining the motion for protection and in holding the $25,000.00 award was discharged in the bankruptcy proceedings.

Judgment of the trial court is affirmed.


author: ROBERTSON, Justice.

text:
    Gwendolyn B. Austin WATKINS, Appellant, v. Gilbert E. AUSTIN, Appellee.
    No. 20128.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 29, 1979.

      Jay S. Fichtner, Berman, Fichtner & Mitchell, Dallas, for appellant.
    Diane L. Snyder, Dallas, for appellee.
    Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.
   ROBERTSON, Justice.

This is an appeal by Gwendolyn B. Austin Watkins from an order of the trial court modifying a final judgment of divorce, and reducing child support pursuant to section 14.08 of the Texas Family Code. Appellant contends that the lower court abused its discretion in that no evidence or insufficient evidence existed to support its action. Additionally, she argues that the trial court should have increased child support and that she should have been awarded attorney’s fees and costs. The primary question before us, therefore, is whether the trial court, upon hearing of appellee’s motion, abused its discretion in reducing the child support payments. We hold that sufficient evidence exists in this record to justify the trial court’s action, and accordingly, we affirm.

In the final judgment of divorce, entered on November 22, 1977, appellant was appointed managing conservator of the parties’ two children, and Gilbert E. Austin, appellee, was appointed possessory conservator and ordered to pay child support in the amount of $700.00 per month. At the time of the divorce, appellee was a commissioned salesman with a sales territory , which included west Texas, Oklahoma, New Mexico, and the Texas panhandle. Effective July 31, 1978, the appellee’s territory was reduced by deleting therefrom Oklahoma and the Texas panhandle. Appellee filed a motion to reduce child support on January 4,1979, alleging a reduction of income earning ability due to this reduction in territory which he claimed was a material and substantial change of circumstances. Appellant filed her answer by way of general denial and a counterclaim for an increase in child support. During the hearing on ap-pellee’s motion, it was discovered that his employer very recently had made another change which would restore appellee’s original territory. Under this change, however, appellee would lose one of the two lines of goods that he sold and would be required to hire a salesman to assist him.

Section 14.08 of the Texas Family Code provides that an order for the support of a child may be modified after a hearing “if the circumstances of the child or a person affected by the order or portion of the decree to be modified have materially and substantially changed since the entry of the order or decree . . . .” On appeal of such a modification, the appellant must demonstrate that the trial court has abused its discretion in finding the material and substantial change necessary to grant modification. Further, an appellate court will indulge in all reasonable inferences from the evidence sufficient to. support the actions of the trial court. Woodruff v. Woodruff, 487 S.W.2d 791, 793 (Tex.Civ.App.—Texarkana 1972, no writ).

The record before us reflects that for the period starting November 1977, the date of the final judgment of divorce, until July 1978, the date on which appellee’s territory was reduced, he had total income after deduction of business expenses of $33,298 or $3,699 per month. From August 1978 through February 1979, the last month for which complete income figures are available, appellee’s total income after deduction of business expenses was $17,660 or $2,943 per month. This shows a $756 per month reduction in income after deduction of business expenses. It should also be noted that this reduction in income occurred despite the fact that some deferred commissions from the period prior to the territory reduction are included in this latter period. While no indication of appellee’s detailed personal expenses at the time of divorce is given, the record does support the conclusion that no substantial change has occurred in those expenses.

Appellant argues that since appel-lee’s territory is to be restored, he will be in the same position he was at the time of divorce, and, therefore, that the reduction shown above in his income is merely a temporary slump. Further, if such temporary slumps are sufficient to justify modification of child support payments, every possessory conservator working on a commission basis who has a bad sales month will be petitioning the court for a reduction of child support payments. We find this argument to be without merit. First, any conclusion as to the effect of the second territory change on appellee’s income is purely speculative, and second, simply showing a short term slump in income is not sufficient to support modification of a child support order. Section 14.08 requires a material and substantial change of circumstances. A finding of such a change is supported here because the record reflects a steady decline in appellee’s income over a seven-month period, without any offsetting circumstances in other areas of his overall financial situation.

Appellant also argues, citing Hazelwood v. Jinkins, 580 S.W.2d 33, 37 (Tex.Civ. App.—Houston [1st Dist.] 1979, no writ), and Labowitz v. Labowitz, 542 S.W.2d 922, 925 (Tex.Civ.App.—Dallas 1976, no writ), that the trial court must not only consider appellee’s income earning capacity, but also his overall financial position. Since appel-lee has sufficient savings to continue making the full $700 per month support payments, appellant contends that the child support payments should not have been reduced. Hazelwood and Labowitz, however, do not require that the possessory conservator be devoid of savings before payments may be modified. Rather, they require the courts to assess all financial assets of both parents in determining the proper support to be provided the parties’ children and require parents to look to any financial asset available to provide that support for their children. Appellant’s contention, therefore, is correct insofar as it indicates that the trial court cannot consider only income earning capacity in finding a material and substantial change in circumstances. There is no indication in this record, however, that the trial court did not consider appellee’s overall financial position in finding a material and substantial change in his circumstances.

On the basis of these facts, we cannot say the trial court abused its discretion. Sufficient evidence exists in this record to support a finding that a material and substantial change occurred in appellee’s circumstances. Consequently, we overrule appellant’s no evidence and insufficient evidence points of error, and also appellant’s point of error asking for an increase in child support.

Appellant contends further that the trial court abused its discretion in not awarding her attorney’s fees and costs. See Tex.Fam.Code Ann. § 11.18(a) (Vernon 1975). This contention is based on the assumption that it was unreasonable for the father to bring his motion to modify the child support order because no change had occurred in his circumstances. In light of our holding that a change had occurred, we overrule appellant’s fifth point of error. Labowitz v. Labowitz, 542 S.W.2d at 927.

We find no abuse of discretion by the trial court, and accordingly, we affirm the modification of the support order.


author: HUGHES, Justice.

text:
    MONTAGUE COUNTY, Appellant, v. S. D. HOWARD, Appellee.
    No. 18247.
    Court of Civil Appeals of Texas, Fort Worth.
    Nov. 29, 1979.
    Jack Lovette, Bowie, for appellant.
    Douthitt, Mitchell & Paul, and Frank Douthitt, Henrietta, for appellee.
   OPINION

HUGHES, Justice.

Montague County has appealed from a summary judgment granted to S. D. Howard. County had sued to enjoin Howard from obstructing a road and to require him to remove a barbed wire fence therefrom. The only ground for trial court’s granting of the summary judgment was that the description made from the survey used was insufficient to describe the land in question. County filed no answer to the unsworn motion for summary judgment filed by Howard.

We affirm.

Specificity is the key word in this appeal. Did the Seay survey and field notes pleaded by county locate the roadway with sufficient specificity?

Failure to establish specificity of road location was the basis of reversal of judgment granting injunction in Young v. Hicks, 559 S.W.2d 343 (Tex.1977), in a case having a fact situation remarkably similar to this case. The only surveyor’s testimony in this case was that of Hardy L. Seay. Seay indicated that his survey did not commence at a known comer; that he did not check any bearings on making a 90° turn; that his survey followed the west boundary line of a Robertson survey “approximately” (which he had to correct on finding an old fence), and that he was unable to find a comer of the Stewart subdivision which was involved herein.

Seay also indicated that he never located with certainty the east boundary line of the essential York tract (off of which is the fifteen foot strip alleged owned by County). We agree with Howard that Seay’s deposition shows the survey to be lacking and overrule point of error no. 2.

We cannot hold that Howard made admission in his pleadings such as to preclude an issue of specificity in Seay’s description of the land, since the supreme court held in Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949), that an affirmative defense pleading following a general denial is not a judicial admission. Therefore, Howard’s use of the Seay description in his affirmative pleadings did not ratify it. We overrule point of error no. 1.

As noted, County did not file a reply to Howard’s motion for summary judgment. Since it failed to point out any issues to defeat Howard’s motion in the trial court, it cannot raise a new ground or resurrect a ground abandoned at the hearing to defeat the judgment on appeal. The City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); Tex.R.Civ.P. 166-A. We hold that this recent supreme court ruling further precludes County from prevailing in this appeal.

Affirmed.


text:
    CITY OF IRVING, Texas, Appellant, v. Hattie Mae LESLEY et al., Appellees.
    No. 23451.
    Court of Civil Appeals of Texas, Dallas.
    Nov. 30, 1979.
    Robert M. Tharp, Asst. City Atty., Irving, for appellant.
    Timothy E. Kelley, Dallas, for appellees.
    Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.
   GUITTARD, Chief Justice.

The City of Irving has tendered for filing a transcript which our clerk declined to file on the ground that it fails to show that an appeal has been perfected. The city has now filed a motion to compel the clerk to file the transcript. It relies on a “Direction to Clerk to Prepare Transcript” filed with the clerk within thirty days after the trial court’s order overruling the motion for new trial. We hold that this document is sufficient as a notice of appeal, and, therefore, we direct the clerk to accept the tendered transcript for filing.

Since the city is exempt from the requirement of filing a bond, it may perfect an appeal by complying with subdivision (c) of Rule 354, Tex.R.Civ.P., which provides as follows:

When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a notice of appeal which shall be filed with the clerk, within thirty days after rendition of judgment or order overruling motion for new trial . . . Such notice shall be sufficient if it state[s] the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or some designated portion thereof.

The document relied on as a notice of appeal is a formal “Direction to Clerk to Prepare Transcript,” which was filed with the clerk five days after the motion for new trial was overruled. A certificate of. counsel shows that a copy was mailed to opposing counsel. This document has a caption stating the number and style of the case, and it states that the city “has given notice of appeal from the Judgment rendered therein of August 3, 1979, to the Court of Civil Appeals of the Fifth Supreme Judicial District of Texas.” It directs the clerk “to prepare a true copy of the proceedings in the trial court on this cause for use in said appeal.”

Although this document does not state “that appellant desires to appeal from the judgment” in those exact words, it leaves no doubt that the city does desire to appeal. It states, erroneously perhaps, that the city had already given notice of appeal, and requests that a transcript be prepared “for use in said appeal.” It also specifies the papers to be included in the transcript.

The purpose of the notice of appeal in Rule 354(c) is to make an official record that the party has a present desire to appeal and to give notice of that fact to the opposing party. Unquestionably, the document serves that purpose and complies otherwise with Rule 354(c). Consequently, we hold that it is sufficient as a notice of appeal.

We recognize that this holding is contrary to that of the Corpus Christi Court of Civil Appeals in State Department of Highways and Public Transportation v. Douglas, 577 S.W.2d 559 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n. r. e.), which we are unable to distinguish in any material respect. The Corpus Christi court takes the view that the controlling consideration is whether the document in question (in that case, a letter to the district clerk requesting preparation of a transcript), was intended as a notice of appeal within Rule 354(c). We decline to follow Douglas because we conclude that whatever the ultimate intent of counsel, the controlling consideration is whether the document unequivocally evidences appellant’s present desire to appeal. This document leaves no doubt in that respect. The words “to prepare a true copy . . . for use in said appeal” are neither prospective nor anticipatory. They clearly evidence an unconditional desire to undertake the steps necessary to complete the appellate process. The document complies with the rule in all other respects as well. Consequently, we hold that it is sufficient.

The motion is granted and the clerk is directed to accept the transcript and docket the appeal.


author: PAUL PRESSLER, Justice.

text:
    Bobby BYRD et ux., Appellants, v. ALLIED AMERICAN BANK, Appellee.
    No. A2202.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Dec. 5, 1979.

      Jerry L. Schutza, Parks & Moss, Houston, for appellants.
    J. Richard Hall, Leger, Hall, Hill & Glover, Houston, for appellee.
    Before J. CURTISS BROWN, C. J., and MILLER and PAUL PRESSLER, JJ.
   PAUL PRESSLER, Justice.

Appellants attack by writ of error a default judgment against them on a promissory note they had executed.

Appellee became owner and holder of the note by merger with the original holder bank. Appellants allegedly moved from Texas leaving only a Post Office Box address. Appellee sought service through the provisions of the Long-Arm Statute, Tex. Rev.Civ.Stat.Ann. art. 2031b (1964). Appellants neither appeared nor answered. Default judgment was granted. Property which had been owned by appellants was then sold to Dale Dobson in an execution sale in satisfaction of the default judgment. Appellants applied for a writ of error. Ap-pellee has filed a Motion to Dismiss for Want of Jurisdiction. Appellee contends that Dodson is a “party adversely interested” in the outcome of this appeal under Rule 360 of the Texas Rules of Civil Procedure since Dodson’s title to the property purchased at the execution sale may be adversely affected by the decision of this Court. Rule 360 requires that the name and residence of each party adversely interested be included in a Petition for Writ of Error. Neither Dodson’s name, nor his residence were included in appellants’ petition. Appellee thus contends that this Court lacks jurisdiction to consider this appeal. We agree.

Appellants contend that Dodson is not a “party” under Rule 360 citing Payne v. Livingston, 253 S.W. 701 (Tex.Civ.App.— Austin 1923, no writ) and City of Corpus Christi v. Scruggs, 89 S.W.2d 458 (Tex.Civ. App.—San Antonio 1935, no writ) in support of this contention. The facts of these cases are distinguishable from the case before us. Payne, supra, turned upon the failure to specify the legal nature of the alleged party adversely interested. Clearly the reasoning of the court in Payne does not apply to this case. In City of Corpus Christi v. Scruggs, supra, the court refused to require two individuals to be named as defendants in the appeal since it was merely alleged that they had an unspecified interest in the judgment even though they were not parties-plaintiff in the original suit.

Appellants also seek support for their contentions in Ponca Wholesale Mercantile Company v. Alley, 378 S.W.2d 129 (Tex.Civ. App. —Amarillo 1964, writ ref’d n. r. e.). In this case the court cites the prior definitions of “parties” under Rule 360 by saying, “It has been held ‘parties adversely interested’ are parties whose interest in the subject matter of the proceeding is adverse to that of the parties seeking the writ of error or whose interest may be affected by the modification or reversal of the judgment in question, [cases cited]." The court then found that the parties in question no longer had an adverse interest as the original suit had been dismissed subsequent to the filing of a cross action which did not name the allegedly adverse parties. The facts are distinguishable, but the definition of a “party adversely interested” clearly fits Dodson as his interests may well “be affected by the modification or reversal of the judgment in question.” Accord Thomas v. Iliff, 524 S.W.2d 568 (Tex.Civ.App.—Texarkana 1975, no writ).

Appellants further contend that Dodson is not adversely interested, alleging that he was merely a purchaser of real property at an execution sale and his title could not be affected by a modification or reversal of the judgment below. We disagree. Reversal of the judgment would render the sheriff’s sale at which Dodson purchased the property void. Murphy v. Johnson, 439 S.W.2d 440 (Tex.Civ.App.—Houston [1st Dist.] 1969, no writ), Henke v. First Southern Properties Inc., 586 S.W.2d 617 (Tex. Civ.App. —Waco 1979, no writ). We hold that such a threat to Dodson’s interest places him in the category of a person adversely interested within the meaning of Rule 360. Therefore, since Dodson was not named in the Writ of Error, the motion to dismiss for want of jurisdiction must be granted.

Dismissed for want of jurisdiction.