text:
    Albert McINTYRE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 60667.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.
    R. H. Wester, Jr., Seguin, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

As appellant describes it in his brief, this is “an appeal from a revocation of conditional discharge, and entry of a finding of guilt. . . .” To an indictment charging him with delivering marihuana appellant pled guilty and on January 14, 1977 the trial court noted “conditional discharge granted,” and entered an order deferring a finding of guilt for a period of two years on ten stated conditions — essentially the first nine set forth in Article 42.12, § 6, V.A.C.C.P. and the tenth requiring payment of a “probation fee” in a stated amount. July 26, 1978 the State, through its district attorney, filed a petition to request setting aside of deferred adjudication and to enter a finding of guilt, alleging violation of five of the ten conditions previously imposed and praying that a finding of guilty be entered and that appellant be confined in the State penitentiary for a period of two years. After a hearing commenced July 31 and ended August 1, 1978, the judge of the court announced his findings that appellant had violated several of the conditions, specifying them, and based upon those- findings ordered the deferred judgment to be set aside and proceeded to find him guilty on the original charge and assessed punishment at two years confinement in the penitentiary. Application for adult probation was denied. On the same day the court entered its written judgment that appellant was guilty of the offense of delivery of marihuana, as confessed by him, and assessed punishment by confinement in the State penitentiary for a term of two years. In due course sentence was pronounced and appellant gave notice of appeal.

In his brief appellant clusters seven points of error under one stated ground upon which reversal is sought: “Appellant bases his appeal upon abuse of discretion of the trial court in its findings of violation of conditions of the' Conditional Discharge granted to the appellant.” This commendably accurate statement of the situation raises in our minds the threshold question of whether a determination by a court, which has previously granted a conditional discharge in a controlled substances case, to proceed with an adjudication of guilt on the original charge, based upon findings that one or more conditions have been violated, may be reviewed by this Court on appeal from judgment of conviction and sentence thereafter imposed. We are moved to ponder the matter by the following provisions of § 3d(b), Art. 42.12, V.A.C.C.P.:

“The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination.”

At the outset we observe that § 4.12 of the Controlled Substances Act, Art. 4476-15, V.A.C.S. is conceptually similar to § 3d of the Adult Probation, Parole and Mandatory Supervision Law, Art. 42.12, V.A.C.C.P. While not limiting or expanding its meaning, caption of the former refers to “Conditional Discharge,” a term also adopted by this Court, whereas the latter, although not bearing a caption, has been referred to by us as deferred adjudication of guilt. Nevertheless the Court has noted that the language of both “is very similar” and that the conditional discharge section of the Controlled Substances Act “likewise provides for deferred adjudication of guilt,” Crutchfield, supra, as indeed it does.

However, there are internal dissimilarities immediately observable which may be of some moment. First, eligibility prerequisites are different: The controlled substance accused must not have been previously convicted of a controlled substance offense; the deferred adjudication accused is considered against serving the best interest of society and the accused. Second, the setting varies somewhat: The controlled substance accused may be conditionally discharged upon a finding of guilt after trial or on a plea of guilty; the deferred adjudication accused must enter a plea of guilty or nolo contendere. Third, the controlled substance accused must consent to the conditional discharge whereas the deferred adjudication accused need not and, indeed, by filing a written motion within 30 days after entering his plea may cause the court to proceed to final adjudication. Fourth, the maximum probationary periods are distinguishable: The probationary period for the conditionally discharged accused may not exceed 2 years; the period for the deferred adjudication accused may not exceed 10 years. Fifth, the proceedings to be followed by the trial court after “violation of a condition of probation” are prescribed differently: As to the conditionally discharged accused, the court may enter an adjudication of guilt, pronounce sentence, and punish him accordingly; as to the deferred adjudication accused, the court holds a hearing to determine whether it proceeds with an adjudication of guilt on the original charge and, if so, then all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation continue as if adjudication of guilt had not been deferred. Sixth, provisions as to appeal are contrasted: None is mentioned for the conditionally discharged accused who violates a condition of probation and his guilt is adjudicated; it is expressly provided that no appeal may be taken by a deferred adjudication accused who violates a condition of probation from the determination by the court to proceed with an adjudication of guilt. Finally, the matter of an appeal from adjudication of guilt and pronouncement of sentence is treated differently: It is simply not specifically provided for the conditionally discharged accused; appeal by the deferred adjudication accused, however, is expressly authorized to “continue as if the adjudication of guilt had not been deferred.”

Whether the dissimilarities we have noted create a conflict in the sense that one is a general and the other a special statute, see generally Thomas v. State, 129 Tex. Cr.R. 628, 91 S.W.2d 716 (1935), need not concern us because § 4.12(d) of the Controlled Substances Act expressly disclaims any intention that the conditional discharge mechanism is an exclusive procedure; indeed, the Legislature there specifically stated, “Any other procedure provided by law relating to suspension of trial or probation may be followed, in the discretion of the trial court.” Our problem, then, is to determine which procedure the trial court below followed.

While the record is not all that clear, we have concluded that appellant invoked and the trial court followed the conditional discharge provisions of the Controlled Substances Act. The offense alleged was delivery of marihuana, a third degree felony with a range of punishment of not more than 10 nor less than 2 years. The original proceedings were before the court, Honorable E. W. Patteson, Judge Presiding. The order of the court deferring judgment recites that the action is taken “with the consent of the defendant” — an express prerequisite of a conditional discharge but is not required for a deferred adjudication. The probationary period prescribed was for 2 years, the limit for a conditional discharge but the minimum for a deferred adjudication. A docket entry apparently made contemporaneously with the order notes “conditional discharge granted.” The adjudication proceeding held the following year, was, of course, before the court, Honorable B. B. Schraub, Judge Presiding. At the outset, apparently from reviewing the last entry in the docket sheet the court inquired of appellant if he were the same accused who at the original trial had been “placed on conditional discharge at that time” and informed him that the State had filed a petition asking the court “to set aside that deferred — that conditional discharge and find you guilty and assess punishment. . ” While it is true that in the ensuing colloquy Judge Schraub referred to the earlier order as deferred adjudication and in rendering the determination of the court used the terms “deferred judgment” and “conditional discharge” interchangeably, we believe the character of the order entered by Judge Patteson, in the exercise of the discretion of the trial court at the time he was Presiding Judge, is best determined by what the court did and said it was doing in granting conditional discharge. Accordingly, we find that the proceedings are governed by § 4.12 of the Controlled Substances Act.

The question that recurs, then, is whether the determination by the trial court to enter an adjudication of guilt of the offense of delivery of marihuana is reviewable by this Court on an appeal from that judgment and subsequent sentence.

Our analysis begins with the unassailable proposition that unless granted by constitutional bestowal there is no such thing as an inherent right of appeal in this State. Ex Parte Bennett, 85 Tex.Cr.R. 315, 211 S.W. 934, 938 (on motion for rehearing, 1919); Savage v. State, 155 Tex.Cr.R. 576, 237 S.W.2d 315, 317 (on motion for rehearing, 1951). Nor is there a Federal constitutional right to State appellate review of State criminal convictions, Estelle v. Durrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). Accordingly, “one who would invoke the jurisdiction of the Court of Criminal Appeals must be able to point to some provision of the statute conferring the right of appeal and bring himself within the procedure prescribed by the Legislature,” Ex Parte Minor, 115 Tex.Cr.R. 634, 27 S.W.2d 805, 807 (1930). In this respect, aside from the loosely framed notion alluded to, Milli-can v. State, supra, is instructive, particularly because it dealt with the “right” of one whose sentence had been suspended and then had the suspension revoked to obtain review of the initial trial proceedings by appealing the final judgment revoking suspended sentence and imposing sentence of confinement. The court pointed out, though, that by virtue of a legislative amendment that character of review was no longer available for, “The right to fix appeals being committed to the legislature by the Constitution, such body had the right to give, and having given, would have the right to take away.”

Article 4.03, V.A.C.C.P. provides broadly that this Court “shall have appellate jurisdiction coextensive with the limits of the State in all criminal cases.” But the Court has held that this general legislative grant of appellate jurisdiction does not constitute sufficient authority to review every adverse order or ruling rendered by a lower court. See Basaldua v. State, 558 S.W.2d 2, 5 (1977); cf. Houlihan v. State, 579 S.W.2d 213, 216 (Tex.Cr.App.1979). In § 4.12 of the Controlled Substances Act the Legislature simply did not address the matter of an appeal from, or right to review, a finding by the trial court that a condition of probation had been violated, based upon which the trial court “may” enter an adjudication of guilt.

In every instance of probation within the meaning of the Adult Probation, Parole and Mandatory Supervision Law, Art. 42.12, V.A.C.C.P., and the Misdemeanor Probation Law, Art. 42.13, V.A.C.C.P., the Legislature has made express provisions for appeal of the revocation of probation, as well as the initial grant of probation. Section 8(b), Art. 42.12 and § 8(a), Art. 42.13. So also in the instance of the deferred adjudication procedure of § 3d, Art. 42.12, although it took pains to point out that an appeal may not be taken from the determination of the court, based upon finding a violation of a condition of probation, whether to proceed with an adjudication of guilt on the original charge. From the silence of the Legislature in § 4.12 of the Controlled Substances Act on the matter of appeal, in a context of verbalizing the right to appeal in probation cases, may we conclude that the Legislature deliberately deprived an accused of obtaining review in this Court of his contention that a trial court abused its discretion in finding a violation of condition of “probation” and proceeding to enter an adjudication of guilt for an offense denounced by the Controlled Substances Act?

We believe that evident policy considerations underlying the conditional discharge provisions of the Controlled Substances Act are sufficiently distinctive to warrant the conclusion that the Legislature, by not providing for appellate review, intended that there be none.- Quite unlike “regular” probation that comes after an adjudication of guilt, assessment of punishment, a favorable recommendation by a jury or, in most cases where the investigatory personnel are available, an optimistic presentence report to the court and suspension of imposition of sentence, the Controlled Substances Act clearly contemplates that the sharply limited and highly selective class of offenders is to be subjected to relatively less exposure to the criminal justice system. An accused who engages in first time conduct no more offensive to the Controlled Substances Act than to earn a probationary period not to exceed 2 years might reasonably have been characterized by the Legislature as one whose youth, naivete, experimentation, peer pressure or other mitigating or extenuating experiences contributed to commission of the offense. With this permissible view, the Legislature was authorized to call upon the trial courts and their judges to exercise an extraordinarily exquisite sense of discriminating discretion in granting a conditional discharge. The ultimate purpose of “regular” probation is to rehabilitate the convicted defendant without confinement. But the true objective of the conditional discharge is to divert the accused from the rest of the gauntlet run of the criminal justice system and the function of the trial court is to enter into a clearly understood pact with the accused that will induce and persuade him to follow the diversionary road. That the Legislature authorized the trial court as an inducement and encouragement to utilize “probation” does not necessarily mean that the Legislature had “regular” probation in mind for it prescribed only “such reasonable conditions” as the trial court “may require” and “for such period” as the court may prescribe — again, not to exceed 2 years. Meanwhile, a judgment of guilt is not entered, punishment, as such, is not assessed and, of course, sentence has neither been imposed nor suspended. In essence, what has happened is that the movement of the course of developments in a criminal action has been temporarily stilled and the accused has been permitted an opportunity to demonstrate his capacity for prescribed good behavior during a specified period. If he succeeds, the movement is reversed and disappears; however, should he fail, the movement in the criminal action continues with the normal incidents of trial.

In this light, we believe the deliberation of the trial court in determining, after finding violation of a condition of “probation,” whether to enter an adjudication of guilt on the original charge and carry out the concomitant procedures following is a matter of absolute discretion to be exercised by the trial court without review by this Court.

Accordingly, we hold that the determination by a trial court to enter an adjudication of guilt of whatever controlled substance offense is charged in the indictment against the conditionally discharged accused who has violated a condition of his “probation” is not reviewable by this Court on an appeal from the judgment and subsequent sentence.

Therefore, since the general ground upon which reversal is sought by appellant in this cause is not reviewable and he makes no contention whatsoever concerning validity of any other aspect of this cause, the judgment of conviction is affirmed.

      . We have not been favored with a brief from the State. (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . Acts 1973, 63rd Leg., ch. 429, effective August 27, 1973.

      . Section 3d was added by Acts 1975, 64th Leg., ch. 231, effective September 1, 1975.

      . See § 3.04, Code Construction Act, Art. 5429b-2, V.A.C.S.

      . See Richie v. State, 542 S.W.2d 422 (Tex.Cr.App.1976) and George v. State, 557 S.W.2d 787 (Tex.Cr.App.1977).

      . See Crutchfield v. State, 560 S.W.2d 685 (Tex.Cr.App.1978) and Walker v. State, 557 S.W.2d 785 (Tex.Cr.App.1977).

      . While we are not directly concerned with them in deciding the issue that has been raised, we do note that consequences of final discharge and dismissal also vary: The conditionally discharged accused is the subject of a nonpublic record of the proceeding to be retained by the director “solely for use” in determining future qualification of the accused for conditional discharge — only one is permitted; the deferred adjudication accused may have the fact of previously receiving probation admitted in connection with a conviction in the future on the issue of penalty. A common consequential feature is that a discharge and dismissal is not deemed a conviction for purposes of disqualifications or disabilities imposed by law for conviction of an offense.

      . Occasionally this Court has expressed the notion that “the right of appeal is conferred only by the Constitution, with such exceptions or limitations as the legislature directs by statute,” Millican v. State, 145 Tex.Cr.R. 195, 167 S.W.2d 188, (on motion for rehearing, 1943), thereby suggesting that the language of Art. V, § 5, of the Texas Constitution conferring upon this Court appellate jurisdiction in all criminal cases of whatever grade may be read as creating a correlative right of appeal to this Court. The genesis of the erroneous notion is found and explicated in King v. State, 105 Tex.Cr.R. 416, 289 S.W. 69, 71 (1926) and the correct view is reaffirmed: “. .it was contended that the right of appeal in all criminal cases arose from the Constitution. Upon that point this Court expressed the opinion that the privilege of appeal depended upon the statute. To that view we adhere.”

      . See n. 8, Millican, supra.

      . Prescribing different consequences to the successful conditionally discharged accused and the probationer, see n. 7, supra, reflects the legislative understanding that the former is not on “regular” probation.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Nazario MORALES, Appellant, v. The STATE of Texas, Appellee.
    No. 61490.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 19, 1979.
    Rehearing En Banc Denied Oct. 24, 1979.

      Harry A. Nass, Jr., San Antonio, court appointed, Gale 0. Castillo, San Antonio, court appointed, for appellant.
    Bill M. White, Dist. Atty., Donald A. Clowe, E. Dickinson Ryman, Edwin E. Springer and Douglas V. McNeel, Asst. Dist. Attys., San Antonio, and Robert Hut-tash, State’s Atty., Austin, for the State.
    Before ROBERTS, TOM G. DAVIS and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated robbery. V.T.C.A. Penal Code, Sec. 29.03. Following his plea of guilty, the court assessed appellant’s punishment at ten years.

In his sole ground of error, appellant contends that the trial court erred in failing to hold a competency hearing. See, Article 46.02, V.A.C.C.P. Appellant contends that evidence produced after his sentencing raised a bona fide doubt as to his competency to have earlier stood trial.

The court clerk testified that when appellant appeared in court on September 11, 1975, for arraignment, he was observed beating his chest and heard to say that he was attempting to exorcise the devils in his body. At that time, the court appointed Dr. Richard Cameron, Director of Psychological, Psychiatric Office of Bexar County, to examine appellant.

Appellant pled guilty on October 28,1975. At the time he entered his plea of guilty, his attorney assured the court that in his opinion appellant was competent to stand trial. In support of this opinion, counsel for appellant introduced Dr. Cameron’s report dated September 12, 1975, which contained the following conclusion:

“Defendant knows right from wrong and can adhere to the right. He is sufficiently intelligent to understand the nature, seriousness, and quality of the acts for which he is charged, to place himself in the legal proceedings, and to assist counsel in his defense. He meets the legal criteria of competency and is, therefore, considered competent to stand trial.”

In connection with appellant’s Application for Probation, the court appointed Dr. Betty Schroeder to examine appellant. In a report dated November 13, 1975, Dr. Schroeder concluded that appellant was competent. On December 4,1975, the court informed appellant that his application for probation was denied. Appellant timely filed a motion for new trial. The court sentenced appellant on February 12, 1976, after his motion for new trial was overruled by operation of law. Appellant then gave timely notice of appeal.

Appellant’s counsel raised the issue of appellant’s competence to stand trial for the first time in a Motion for Additional Psychiatric Examination and Competency Hearing filed on May 12, 1976. On December 16, 1976, the court ordered that appellant be examined to determine his present competency to stand trial. In response to this order, Dr. Terresa Stallworth submitted her report to the court dated December 28, 1976, which concluded as follows:

“Whether Mr. Morales’ diagnosis is Gan-ser’s Syndrome or Underlying Schizophrenic Disorder, he is presently incompetent to advise his council (sic) in the matter of his defense. Because he has been a management problem for our hospital, I feel that at this time we lack proper security to maintain good security past the 14-day limit for Diagnosis and Evaluation.
“In addition, it is felt that Mr. Morales needs to be seen by the Review Board for Manifest Dangerousness at the Rusk State Hospital before transfer to our outlying hospitals is undertaken. It is my recommendation that he be sent to Rusk State Hospital for a period of time to try to obtain competency to stand trial.”

On February 8, 1977, appellant filed a second Motion for New Trial alleging that newly discovered evidence revealed that appellant was incompetent at the time he pled guilty. On February 17, 1977, a hearing was held in response to this motion. The court stated that although the February 8th pleading was styled A Motion for New Trial, it was primarily a request that appellant receive some type of treatment due to incompetence following his conviction. At this hearing, the court’s clerk and bailiff testified that they had witnessed appellant beating his chest in an “attempt to drive the devils out” in September of 1975. The clerk testified that in her opinion appellant was “nuts” at that time. Dr. Stallworth testified that it was within the realm of medical possibilities that appellant was incompetent as early as September of 1975. Three employees of the county jail testified that appellant would put up a fight and attack jail guards whenever he was informed that he was going to court for various appearances and hearings. At the conclusion of this hearing, the court ordered Dr. C. N. Rothe, County Health Officer, to examine appellant. In a report to the court dated May 17, 1978, Dr. Rothe concluded as follows:

“At neither interview did I detect anything that would support an opinion that Nazario Morales is presently suffering from a mental illness. It is, therefore, my considered opinion that Nazario Morales does not now have a mental illness and that there is no justification for further evaluation nor is there a requirement for treatment at a medical installation.”

Finally, on June 6, 1978, the trial court issued an order stating: (1) that a bona fide issue as to mental illness after conviction was raised and (2) that appellant should be transferred to the Texas Department of Corrections so that a prison physician could determine whether he was mentally ill.

Article 46.02, Sec. (2)(a) and (b) provides for the procedure to raise the issue of the defendant’s incompetence to stand trial. Under that statute:

“Sec. 2. (a) The issue of the defendant’s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.
“(b) If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.”

In the instant case, appellant did not file a pretrial motion for a competency hearing. Indeed, at the plea of guilty, appellant’s counsel assured the court that his client was competent and submitted Dr. Cameron’s report in support of his opinion that appellant was presently competent to stand trial.

We have held that a trial court is relieved of any responsibility to hold a pretrial competency hearing when the defendant announces ready and enters a plea without any suggestion of incompetency. Perryman v. State, 507 S.W.2d 541 (Tex.Cr.App.); Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.); and Thomas v. State, 562 S.W.2d 240 (Tex.Cr.App.). We find that the trial court was not obligated to provide a pretrial competency hearing for appellant.

Appellant’s first Motion for a New Trial was timely filed within ten days of the trial court’s denial of his Motion for Probation. See, Article 40.05, V.A.C.C.P., and Woods v. State, 532 S.W.2d 608 (Tex.Cr.App.). This motion in no way raised the issue of appellant’s competence to have stood trial. The motion was overruled by operation of law twenty days after it was filed when a hearing was not held in the trial court. See, Article 40.05, supra.

Appellant’s second Motion for a New Trial was filed approximately one year after he was sentenced. The trial court held a hearing on this motion nine days after it was filed.

A Motion for New Trial filed after the date of formal sentencing need not be considered by the trial court. Ex parte Herrin, 537 S.W.2d 33 (Tex.Cr.App.). If such a motion is filed, “good cause” must be shown for the belated filing. Article 40.05, supra, and Robinson v. State, 505 S.W.2d 298 (Tex.Cr.App.). If “good cause” is shown and the court agrees to permit the belated filing of a Motion for New Trial where sentence has been pronounced, the sentence should be set aside and an order to that effect entered. Robinson v. State, supra, and Means v. State, 552 S.W.2d 166 (Tex.Cr.App.).

In the instant case, the previous sentence was not set aside, nor was good cause shown for the belatedly filed second Motion for New Trial. Therefore, the motion should not have been heard by the trial court. See, Jones v. State, 501 S.W.2d 677 (Tex.Cr.App.). This Court is not bound to consider the record made on the untimely motion and unauthorized hearing. See, Jones v. State, supra, and Reynolds v. State, 548 S.W.2d 733 (Tex.Cr.App.). However, we have held that a statute governing the time for filing Motions for New Trial cannot be applied so as to deprive an accused of a right secured by the Constitution. Whitmore v. State, 570 S.W.2d 889 (Tex.Cr.App.) (Opinion on Appellant’s Motion for Rehearing).

It is well settled that the conviction of an accused, while he is legally incompetent to stand trial, violates due process of law. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956); Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.); Perryman v. State, supra. The test of legal competence is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. Article 46.02, Sec. 1, supra; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); and Paul v. State, supra. However, a trial court is only required to sua sponte hold a competency hearing when sufficient facts or circumstances are brought to the court’s attention that create a reasonable doubt as to the competence of the appellant. Bonner v. State, supra, and Perryman v. State, supra.

In the instant case, reports from Drs. Cameron and Schroeder made at or near the time appellant was convicted and sentenced indicate that appellant was competent at that time. Appellant’s testimony at the time he entered the plea of guilty and sentencing was clear and lucid. Subsequent reports by Drs. Sherman and Rothe indicate that appellant was competent at the time the reports were made. This evidence is to be contrasted with Dr. Stallworth’s opinion made ten months after appellant was sentenced indicating that it was “within the realm of medical possibility” that appellant was incompetent prior to the time he went to trial and the clerk’s testimony that appellant was “nuts” prior to trial.

It is undisputed that there was no evidence of incompetency at appellant’s trial. In Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App.), we held that the trial court was not required to hold a competency hearing based on conflicting testimony regarding the petitioner’s competency produced at a trial held four months earlier which had ended in a mistrial. In Long, there was a complete absence of evidence of incompetence at the trial. In the instant case, all of the evidence before the court at trial, including Dr. Cameron’s report, reflected that appellant was competent. The evidence presented to the trial court one year after sentencing was not sufficient to require the court to hold a competency hearing. No error is shown.

The judgment is affirmed.


author: ROBERTS, Judge.

text:
    Charles Lamar HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 57917.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 10, 1979.
    Clement Aldridge, Jr., Houston, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ROBERTS, Judge.

The appellant was indicted for robbery by firearms under the old Penal Code, but was convicted by a jury which was instructed on the law of aggravated robbery under the new Penal Code. For this error we must reverse the judgment of guilt (which assessed a punishment of 55 years’ confinement).

The indictment, which was filed in 1976, alleged that the appellant,

“on or about October 31, 1973, did then and there unlawfully assault Mamie Irene Page hereafter styled the Complainant, and did by the assault, by violence, and by putting the Complainant in fear of life and bodily injury, and by then and there unlawfully using and exhibiting a firearm, to-wit: a pistol, fraudulently and against the Complainant’s will take from the person and possession of the Complainant four rifles, one shotgun, one pistol and money owned by the Complainant with the intent to deprive the Complainant of the value of the property and to appropriate it to the Defendant’s use.”

This was an allegation of robbery by firearms, an offense defined by Article 1408 of the Penal Code of 1925. This statute was repealed on January 1, 1974, when the present Penal Code took effect. 1973 Texas General Laws, Chapter 399, Sections 3 & 4. Its provisions continued to govern criminal actions for offenses committed before that date. Id., Section 6(a).

On the day that his trial began, the appellant filed a handwritten “motion,” by which he “elect[ed] to be tried and sentenced under the present law for the conduct charged in the indictment.” This must be construed as the election authorized by 1973 Texas General Laws, Chapter 399, Section 6(c).

“In a criminal action pending on or commenced on or after the effective date of this Act, for an offense committed before the effective date, the defendant, if adjudged guilty, shall be assessed punishment under this Act if he so elects by written motion filed with the trial court before the sentencing hearing begins.”

An election to have punishment assessed under the new Penal Code does not change the nature of the offense from robbery by firearms under the old code to aggravated robbery under the new code. Jefferson v. State, 519 S.W.2d 649 (Tex.Cr.App.1975). The application of the new Penal Code to an offense committed before its effective date would be in violation of 1973 Texas General Laws, Chapter 399, Section 6(a), to say nothing of the constitutional prohibitions against retroactive application of penal laws.

Nevertheless, and without objection from either party, the court charged the jury on the law of aggravated robbery in the new Penal Code. After setting out some abstract definitions of the law that are found in the new Penal Code, the charge authorized the jury to convict on any of.the theories of aggravated robbery that are set out in Chapter 29 of that code:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 31st day of October, 1973, in Harris County, Texas, the defendant, Charles Lamar Hicks, did, without the effective consent of Mamie Irene Page, the owner, take and exercise control over the corporeal personal property of Mamie Irene Page, to wit, four rifles, one shotgun, one pistol and money, from the possession of Mamie Irene Page, with intent then and there to deprive Mamie Irene Page of said four rifles, one shotgun, one pistol and money, and that said defendant, in so doing, and with intent to acquire and maintain control of said four rifles, one shotgun, one pistol and money, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Mamie Irene Page or defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment.”

In so doing, the charge authorized the jury to convict on theories not alleged in the indictment. This is fundamental error. Cumbie v. State, 578 S.W.2d 732 (Tex.Cr.App.1979).

The judgment is reversed and the cause is remanded.

      . “(a) Except as provided in Subsections (b) and (c) of this section, this Act applies only to offenses committed on or after its effective date, and a criminal action for an offense committed before this Act’s effective date is governed by the law existing before the effective date, which law is continued in effect for this purpose, as if this Act were not in force. * * "

      . U.S.Const. Art. I, Sec. 10; Tex.Const. Art. I, Sec. 16.

      . The appellant does not complain directly of this error; his ground of error is that the recitations in the verdict, judgment, and sentence that the appellant is guilty of “aggravated robbery” do not comport with the indictment. This allegation pales in comparison to the fundamental error which we have discussed above.


text:
    Clarence Victor KULHANEK, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 59021, 59022.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 10, 1979.
    Judgment of conviction reversed in one case and judgment in remaining case affirmed.

      Barry J. O’Keefe, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Veronica E. Morgan, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

ROBERTS, Judge.

These are appeals from orders revoking probation in two causes, No. 252739 and No. 255801. On April 25, 1977, appellant was granted two ten-year probationary terms after pleading guilty to the offenses of forgery (No. 252739) and unauthorized use of a motor vehicle (No. 255801). On September 27,1977, the State filed motions to revoke appellant’s probations in the respective causes, alleging, among other things, that appellant committed the offense of theft in violation of condition (a) of each probation, namely, that he commit no offense against the laws of this or any other state.

Appellant urges that the court abused its discretion by revoking his proba-tions on insufficient evidence that he actually violated the terms and conditions thereof, as alleged. Finding no abuse of discretion, we affirm the court’s judgment revoking appellant’s probation in Cause No. 255801 (Unauthorized Use of a Motor Vehicle); however, with respect to Cause No. 252739 (Forgery) we find the indictment fundamentally defective which requires reversal in the interest of justice. Article 40.09(13), Vernon’s Ann.C.C.P.

As previously stated, on April 25, 1977, appellant, in Cause No. 252739, was convicted for the offense of forgery. The indictment in that case, omitting the formal portions, alleged that appellant

“ . . . did then and there unlawfully with intent to defraud and harm, intentionally and knowingly forge, by passing to Janet Goodson, a writing as follows: [Here the check is set out verbatim.] The defendant then and there knowing the writing was forged.”

The validity of an indictment such as the one in the present case, was recently considered by this Court in Minix v. State, 579 S.W.2d 466, 467, delivered January 24, 1979 (State’s Motion for Rehearing overruled with written opinion, delivered April 25, 1979). In Minix, supra, it was stated:

“It is a well settled rule that when the check is set out haec verba in the indictment, the State is not required to allege that the forged instrument purports to be the act of another, so long as the name of the maker is different than the name of the defendant. [Citing cases.] However, V.T.C.A.Penal Code, Sec. 32.21(a)(l)(A)(i) requires additionally that the instrument must purport to be the act of another ‘who did not authorize that act.’ Young v. State, 529 S.W.2d 542 (Tex.Cr.App.1975). In that respect the present forgery statute did not change its predecessor which included ‘without lawful authority’ as ‘an essential element of the crime of forgery.’ Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876 (1955).”.

We find that the present indictment suffers from the same infirmity which rendered the Minix indictment fundamentally defective in that the present indictment fails to allege that the instrument in question purports to be the act of another who did not authorize the act. See also Payne v. State, 567 S.W.2d 4 (Tex.Cr.App.1978). Therefore, appellant’s conviction in Cause No. 252739 is reversed and the prosecution under this invalid indictment is ordered dismissed.

With respect to appellant’s contention that the court abused its discretion in revoking probation in Cause No. 255801, we note that the State, at the probation revocation hearing, introduced sufficient evidence to support the following findings: Two separate checks, one dated July 29, 1977 (in the amount of $680.00) and the other dated August 3, 1977 (in the amount of $900.00), each payable to the order of the appellant were deposited into appellant’s savings account at the Northshore Bank in Houston; the purported drawer of these checks testified that she never issued the checks personally, nor authorized anyone else to do so in her behalf; a “questioned documents expert,” duly qualified as such, confirmed that it was appellant’s signatures which appeared on two withdrawal slips, one dated August 3, 1977, requesting withdrawal of $660, and the other dated August 8, 1977, requesting the withdrawal of $900; the Northshore Bank honored both withdrawal requests; and, the two checks previously credited to appellant’s savings account were returned to the Northshore Bank unpaid.

In a probation revocation hearing, the State satisfies its burden of proof when the greater weight of the credible evidence before the court creates a reasonable belief that a condition of probation has been violated as alleged. Scamardo v. State, 517 S.W.2d 293, 297 (Tex.Cr.App.1974). In such a hearing, the trial court is the sole trier of the facts, the credibility of the witnesses and the weight to be given to the testimony. Grant v. State, 566 S.W.2d 954, 956 (Tex.Cr.App.1978). After considering all the evidence, the court may, in its sound discretion, revoke probation if the State has proved every element of the offense by a preponderance of the evidence. Grant v. State, supra at 956.

In the present case, the court relied on expert testimony to the effect that appellant’s signature appeared on the withdrawal requests which were honored by the complainant bank. Moreover, under Article 38.27, Vernon’s Ann.C.C.P., the court was entitled to make a comparison of appellant’s handwriting from the exhibits introduced in assessing appellant’s guilt by a preponderance of the evidence. Herndon v. State, 543 S.W.2d 109 (Tex.Cr.App.1976). We conclude that, when viewed in the light most favorable to the court’s finding, the evidence in the present case sufficiently supports the court’s order revoking appellant’s probation; accordingly, appellant’s contention is overruled.

The judgment of conviction in Cause No. 252739 is reversed and the prosecution ordered dismissed; the judgment in Cause No. 255801 is affirmed.

      . Our Cause No. 59,021.

      . Our Cause No. 59,022.

      .This Court is required to review fundamentally defective indictments as an unassigned error in the interest of justice. Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978); Seaton v. State, 564 S.W.2d 721 (Tex.Cr.App.1978).


author: ONION, Presiding Judge.

text:
    Ex parte Ruben COLUNGA.
    No. 60698.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 10, 1979.

      John E. Ackerman, Houston, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and CLINTON, JJ.
   OPINION

ONION, Presiding Judge.

This is a post-conviction habeas corpus proceeding under the provisions of Article 11.07, V.A.C.C.P.

The record reflects that petitioner was convicted of murder and his punishment was assessed at one hundred ninety-nine (199) years’ imprisonment. On appeal the conviction was reversed because of insufficient evidence to corroborate the accomplice witness. On rehearing this court held that upon a finding on appeal that the evidence is insufficient to corroborate the testimony of an accomplice witness the proper disposition is to reverse and remand the cause for a new trial in light of the provisions of Article 44.25, V.A.C.C.P. See Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972).

Petitioner was retried and convicted and again his punishment was assessed at one hundred ninety-nine (199) years’ imprisonment. His conviction was affirmed on appeal. Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975). His claim of double jeopardy was rejected.

Petitioner now urges that in light of the holdings in Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), he is entitled to post-conviction habeas corpus relief. In Burks it was held that the double jeopardy provision of the Fifth Amendment would prevent the retrial of an individual whose conviction had been reversed because of the insufficiency of the evidence to sustain the conviction. Greene makes clear that Burks was applicable to state criminal proceedings by virtue of the Fourteenth Amendment.

The trial court made findings of fact and conclusions of law which support appellant’s contentions. The only question remaining is the retroactivity of the holdings in Burks and Greene. In Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979), this court held that Burks and Greene are to be applied retroactively. Petitioner is entitled to the relief he seeks. Petitioner is ordered released from confinement from the Texas Department of Corrections as a result of his conviction for murder.

It is so ordered.

      . Cf. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973).

      . It is observed that in Johnson v. State, 571 S.W.2d 4 (Tex.Cr.App.1978) (footnote # 2), Ar-tide 44.25, V.A.C.C.P., was held unconstitutional insofar as it was in conflict with Burks and Greene.


author: CLINTON, Judge.

text:
    Jay Franklin MORREN, Appellant, v. The STATE of Texas, Appellee.
    No. 61649.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 10, 1979.

      R. Leonadis McKinney, III, Colorado City, for appellant.
    Frank L. Ginzel, Dist. Atty. and Russell Carroll, Asst. Dist. Atty., Colorado. City, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from an order revoking probation; appellant’s sentence was assessed at four years confinement.

For the first time, appellant contends that the indictment supporting the original conviction for forgery by passing on which he was granted probation, is fundamentally defective for, among other things, its omission of the allegation that the forged instrument “purports to be the act of another who did not authorize that act.” See V.T. C.A. Penal Code, § 32.21(a)(l)(A)(i).

We have examined the indictment. While it sets out the writing in its entirety and otherwise states every other element of the offense, the indictment does, indeed, fail to include the statutory phrase “who did not authorize that act” or to use other words conveying the same meaning or the sense of the statutory words. Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979).

In both Ex parte Cryer, No. 62,092 (Tex.Cr.App., delivered July 18, 1979), and Landry v. State, 583 S.W.2d 620 (Tex.Cr.App., 1979, opinion on appellant’s motion for rehearing), the Court reaffirms the holding in Minix, just as it did on State’s motion for rehearing in Minix itself; it also, on July 18, 1979, overruled a second motion for rehearing in Minix. That an indictment for forgery which fails to allege that the writing purporting to be the act of another “who did not authorize that act” is fundamentally defective is thus settled. Appellant is therefore entitled to relief.

Accordingly, the judgment of conviction is reversed, and the indictment as well as the prosecution based upon it are ordered dismissed.

It is so ordered.

      . See V.T.C.A. Penal Code, § 32.21(b) and (a)(1)(B).

      . See Article 21.17, V.A.C.C.P.

      . That the writer no longer agrees with the original Minix opinion, ás explicated in my dissenting opinions in Minix on State’s motion for rehearing and in Landry v. State, 583 S.W.2d 620 (Tex.Cr.App., 1979, opinion on appellant’s motion for rehearing), is of no moment. The Court en banc has clearly declared the law and I must and do defer to its judgment.


author: DOUGLAS, Judge.

text:
    Jack Stanley SCHWEIN, Appellant, v. The STATE of Texas, Appellee.
    No. 61872.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 10, 1979.

      E. X. Martin, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Ronald D. Hinds and Michael P. Patterson, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

This is an appeal from a revocation of probation. The original conviction was for aggravated promotion of prostitution. Appellant pled guilty pursuant to a plea bargain agreement. No appeal was taken.

We are initially confronted with a fundamentally defective indictment in the original cause which requires review as unassigned error “in the interest of justice.” Article 40.09, Section 13, V.A.C.C.P. See Zachary v. State, 552 S.W.2d 136 (Tex.Cr.App.1977).

The indictment alleges that on or about December 23, 1976, Schwein did “then and there manage and control a prostitution enterprise that uses two prostitutes, to-wit: Shirley Jean Collinsworth and Ennen Elaine Jones.” There is no allegation that appellant did so “knowingly.”

This writer still believes it is impossible to manage and control a prostitution enterprise without knowing it. See Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978), dissenting opinion on State’s motion for rehearing. But the majority of this Court has held to the contrary. Chance v. State, supra.

Because the indictment does not support the conviction, the order revoking probation is reversed and the prosecution is ordered dismissed.


text:
    John HARRIS aka Marcus Johnson, Appellant, v. The STATE of Texas, Appellee.
    No. 61920.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 10, 1979.

      Floyd W. Freed, III, Craig M. Shivers, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Kristen E. Moore and Bob Moen, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

Appellant was found guilty of the charge of theft of property of the value of over $200 but less than $10,000, following a plea of nolo contendere. Punishment was assessed by the court at three years.

Harris challenges the indictment as being fatally defective for an inadequate description of the property taken. Article 21.09, V.A.C.C.P. The indictment alleges that Harris did

“. . . appropriate property, namely property, owned by RAY PRITCH-ARD, hereafter styled the Complainant, of the value of over two hundred dollars and under ten thousand dollars, with the intent to deprive the Complainant of the property, and without the effective consent of the Complainant.” (Emphasis added).

There was no motion to quash filed in the trial court. The matter is being raised for the first time on appeal in appellant’s pro se brief. Therefore, if reversible, the indictment must be considered in terms of a fundamental defect. Rhodes v. State, 560 S.W.2d 665 (Tex.Cr.App.1978).

In Rhodes, the Court compared numerous recent cases in order to determine just when a property description is so vague as to be denoted fundamental error. The Court concluded that a defect must be raised by a motion to quash unless the description is so vague as to be no description at all. Only then will it be considered a jurisdictional defect and capable of being raised for the first time on appeal.

In Willis v. State, 544 S.W.2d 150 (Tex.Cr.App.1976), the defendant was charged with theft of “merchandise” of the value of at least $20.00 but less than $200.00. That description was held to be so vague as to render the indictment fundamentally defective. The judgment of conviction was reversed.

This writer asserted in Willis, and would re-assert today, that such a deficiency goes only to notice to the defendant and not to the jurisdiction of the trial court. Therefore a motion to quash should be required before the matter will be subject to review on appeal. The Court, however, reaffirmed the holding of Willis in its disposition of Rhodes. There the Court stated:

“ ‘Merchandise’ is so general and non-descriptive as to constitute no allegation of the property at all. It could as well have alleged merely ‘property.’ ”

The indictment in the case at bar, having alleged merely “property”, is insufficient.

The judgment of conviction is reversed and the prosecution is ordered dismissed.


author: HUMPHREYS, Justice.

text:
    MOORE INDUSTRIAL DISPOSAL, INC., Appellant, v. CITY OF GARLAND, Appellee.
    No. 19828.
    Court of Civil Appeals of Texas, Dallas.
    July 11, 1979.
    Rehearing Denied Aug. 28, 1979.

      Marshal W. Dooley, Herndon, Girand & Dooley, Dallas, for appellant.
    Merril E. Nunn, Asst. City Atty., Garland, for appellee.
    James W. Hightower, Hightower, Alexander & Cook, Dallas, for intervenor.
    Before GUITTARD, C. J., and CARVER and HUMPHREYS, JJ.
   HUMPHREYS, Justice.

Moore Industrial Disposal, Inc., appellant, sought to permanently enjoin the City of Garland, appellee, from accepting bids for transportation of sludge from any motor carrier not certified by the Railroad Commission of Texas. The sludge is hauled from the city’s wastewater treatment facility to a landfill area. The bids under consideration by the city included one by Texas Industrial Disposal, Inc., intervenor, which does not have a specialized motor carrier certificate from the Railroad Commission. A temporary injunction was entered by agreement, the case was submitted on stipulated facts, and the temporary injunction was dissolved and a permanent injunction was denied. We affirm and hold that the sludge to be hauled by these carriers is not property within the Texas Motor Carriers Act, Tex.Rev.Civ.Stat.Ann. art. 911b (Vernon 1964).

Appellant, who holds a specialized motor carrier certificate from the Railroad Commission, contends that a motor carrier hauling sludge must have a specialized motor carrier certificate. Its four points of error attack the trial court’s conclusions that sludge is not property within the meaning of article 911b, that specialized motor carriers are not required to obtain certificates of convenience and necessity from the Railroad Commission, and that specialized motor carriers are included in the exemption from the definition of “motor carrier” in article 911b § 1(g)(4).

Article 911b § 1(g) defines “motor carriers” as “any . . . vehicle used in transporting property . . .” (Emphasis added). Therefore, the first question before us is whether sludge is property within the act. If it is not, a vehicle hauling sludge is not covered by the act and would not have to have a certificate of convenience and necessity from the Railroad Commission. Any exemptions under article 911b § 1(g)(4) would be immaterial.

The Motor Carriers Act does not define property. The subject matter of this case, however, sludge, does come within Tex.Rev.Civ.Stat.Ann. art. 4477 — 7 (Vernon 1976), the Solid Waste Disposal Act. That statute not only defines “solid waste” but also places the authority to regulate the collection, handling, storage and disposal of municipal solid waste with the Texas Department of Health. Section 2(5) defines solid waste as:

all putrescible and non-putrescible discarded or unwanted solid materials, including garbage, refuse, sludge from a waste treatment plant or air pollution control facility . . ., but does not include: (i) solid or dissolved material in domestic sewage, or solid or dissolved material in irrigation return flows, or industrial discharges subject to regulation by permit issued pursuant to the Texas Water Quality Act; ... or (iii) waste materials which result from activities associated with the exploration, development, or production of oil or gas and are subject to control by the Texas Railroad Commission. . . . [Emphasis added.]

Sludge from a waste treatment plant is not excluded from the definition of solid waste.

The transportation of sludge to a land fill could be regulated by both the Solid Waste Disposal Act and the Motor Carriers Act. We determine, however, that sludge in this case is not property within the Motor Carriers Act because the owner abandons the waste and because it has no value. Indeed, here the parties stipulated, and the trial judge found that this “sludge has no commercial or economic value.” Other jurisdictions have addressed the question and reached conflicting results.

In Masgai v. Public Service Commission of Pennsylvania, 124 Pa. Super. 370, 188 A. 599 (1936), one of the first cases on the subject, the court held that waste hauling was within its Motor Carrier Act. Masgai was hauling stone, gravel and other articles usually transported by dump truck without a certificate from the Public Service Commission. The court decided waste was property because the generator of waste has a property right in the possession and disposal of waste that continues until the waste is actually destroyed. The court also noted that these articles which were being hauled had some value.

In Joray Trucking Corporation Common Carrier Application, 99 M.C.C. 109, 16 Fed. Carr.Rep., ¶ 35,925 (1965), the Interstate Commerce Commission construed the meaning of “property” in the Federal Motor Carriers Act, 49 U.S.C.A. §§ 10521-10526 (Supp.1978). Joray involved a motor carrier hauling rock and debris obtained from excavations and demolishment of buildings. In contrast to Masgai, the Commission found that these items were not property within the meaning of the Federal Motor Carriers Act but based its holding partly on the finding that the contractor relinquishes ownership of these items at the time they are removed from the site. The Commission also stated “the debris, although it may ultimately serve a purpose in helping to fill wasteland, is not purchased from the contractors who desire its removal and to them it has a negative value as a commodity

Another case ruling that waste is not property within that state’s transportation statute is Visco v. Arizona, 95 Ariz. 154, 388 P.2d 155 (Ariz.1963). Visco was transporting garbage and refuse from commercial customers to local land fills. The court ruled waste was not property within the statute’s definition of a “common carrier” and stated:

Nor is the trash hauled by appellant “other property,” as that phrase is used in the constitution and in relation to carriers. Its character as “property” in this case was lost when the owner determined to throw it out. This trash is totally unlike all other property hauled by either common or private carriers. It has been abandoned. 388 P.2d at 163.

We hold that the hauling of this sludge in question is regulated by the Texas Department of Health and not by the Railroad Commission of Texas. We agree with the reasoning of Joray and Visco and hold that this sludge is not property within the meaning of the Texas Motor Carriers Act. Accordingly, we affirm the trial court’s judgment denying an injunction against the city because Texas Industrial Disposal, Inc., or any vehicle hauling sludge, does not have to obtain a certificate of convenience and necessity from the Railroad Commission.

Affirmed.


text:
    HORNBLOWER, WEEKS, NOYES & TRASK, INC., Appellant, v. Donald R. REEDY, Appellee.
    No. 19940.
    Court of Civil Appeals of Texas, Dallas.
    July 11, 1979.
    Rehearing Denied Sept. 19, 1979.
    Joel Held, Bruce A. Budner, Durant, Man-koff, Davis, Wolens & Francis, Dallas, for appellant.
    Michael Lowenberg, Robert B. Crotty, Akin, Gump, Hauer & Feld, Dallas, for ap-pellee.
    Before AKIN, ROBERTSON and HUM-PHREYS, JJ.
   HUMPHREYS, Justice.

Appellant appeals from a permanent injunction granted by the trial court against execution on an agreed judgment entered into by appellant and appellee in 1976. The issues are whether appellant’s notice of default sent by certified mail instead of regular mail as provided in the agreed judgment was proper and whether appellee made proper tender within the grace period. We hold as a matter of law that the notice by certified mail was sufficient and that a valid tender was not made. Consequently, we reverse and render.

The agreed judgment required appellee to pay appellant $1,000 on April 1,1977, and $1,000 on June 1, 1977. A third payment of $2,000 was due on June 1, 1978. When appellee did not make payment on June 1, 1978, appellant sent by certified mail, notice on June 5th to appellee’s home address. According to the agreed judgment, notice was deemed received June 7, the second day after mailing. The judgment provides for a twenty-one day grace period after written notice for appellee to cure the default. Ap-pellee asserts that he never received the notice because he was out of town when it was delivered. When appellee returned, he tried to reach Joel Held, an attorney for appellant who was designated in the judgment to receive payment. According to his affidavit, appellee knew that a payment was due but did not recall where he should make payment. He also called Sam Lapp, a former employee of appellant and an employee of appellant’s successor, and offered to bring him the $2,000 payment, but Lapp refused to accept it. Finally, appellee mailed a cashier’s check to appellant on July 19 after the grace period had expired, but again it was refused. Appellant obtained a writ of execution and the sheriff posted for sale certain real property owned by the appellee. This action for injunction was then instituted by appellee, and appellant counterclaimed for declaratory judgment that the entire amount of the judgment was due and owing. The trial judge granted the injunction, denied the counterclaim, and ordered the two thousand dollars in the court’s registry paid to appellant.

We first address appellee’s contention that this court lacks jurisdiction because the appeal is moot. He argues that the district clerk sent a cashier’s check in the sum of $2,000 to appellant in accord with the trial court’s judgment because the appellant failed to file a supersedeas bond. Although appellant declined to accept the check, ap-pellee contends that the failure to supersede the judgment is equivalent to acceptance. Thus, he reasons that since appellant accepted the benefits of the judgment, he is estopped to appeal and that this appeal is moot. We cannot agree with this reasoning.

In the first place, failure to file a supersedeas bond is not equivalent to accepting benefits under the judgment. A supersedeas bond is an option available to a losing defendant to prevent enforcement of provisions of a judgment unfavorable to him by seizure of his property or otherwise. Tex.R.Civ.P. 364. A losing plaintiff normally has no reason to supersede because denial of his relief leaves nothing to enforce pending appeal. If the judgment contains a provision in his favor, such as payment of money into court for his benefit, he need not supersede the judgment; he may simply leave the money in the registry of the court, as appellant did here. Thus the appellee is fully protected against any premature enforcement of the judgment if it should be reversed.

In the second place, even if appellant had accepted the $2,000 cashier’s check under the present judgment, no question of estop-pel is raised because even under appellee’s theory, appellant was entitled to the sum of $2,000 as a matter of law. See Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002, 1004 (1950); Haggard v. Haggard, 550 S.W.2d 374, 376 (Tex.Civ.App.—Dallas 1977, no writ). In support of appellee’s contention of estoppel, appellee cites City of Mesquite v. Rawlins, 399 S.W.2d 162 (Tex.Civ.App.— Tyler 1966, writ ref’d n.r.e.). In that case, the City of Mesquite had sued the defendant for ad valorem taxes and obtained judgment on a jury verdict for a certain sum. After judgment was rendered on the verdict, the defendant paid the entire amount of the judgment which was accepted by the City. Since the City was dissatisfied by the amount of taxes due as found by the jury, the City appealed. In dismissing that appeal, the court held that by accepting payment, the judgment was satisfied. That court concluded that the City was estopped because it had accepted the full benefit of the judgment and thus had acquiesced in the judgment. In the present case, even if appellant had accepted the $2,000 sum in the court’s registry, no estoppel would lie since appellant had not gained an undue advantage nor would any loss or injury have been incurred by appellee. Estoppel does not apply unless the other party would be prejudiced by the appeal to the extent that the wrong could not be remedied upon retrial or unless the appealing party has clearly acquiesced in the judgment. Haggard v. Haggard, 550 S.W.2d at 376. As we have earlier noted, even under appellee’s theory of the case, as a matter of law, appellant was entitled to the $2,000 installment. Consequently, even upon retrial, appellant would receive this sum. This, of course, was not true in Rawlins. We conclude, therefore, that City of Mesquite v. Rawlins is not controlling here.

Finally, a case is moot only if the decision of this court can have no effect upon the rights of the parties. McNeill v. Hubert, 119 Tex. 18, 23 S.W.2d 331, 333 (1930). Here, even if appellant had accepted the $2,000, the controversy is not moot because the question of whether appellant had the right to accelerate payment has yet to be determined by this court and is the ultimate question on this appeal. Accordingly, we hold that we have jurisdiction to determine this appeal.

With respect to the merits, the trial court concluded as a matter of law that appellant’s notice of default sent by certified mail is not regular mail as required by the judgment and, therefore, the grace period never commenced running. Appellant contends that the court erred in concluding that certified mail did not fall within the ambit of regular mail as required by the agreed judgment. We agree with appellant that notice by certified mail was sufficient to comply with the contractual requirement in the agreement judgment. The obvious purpose of the notice provision is to give appellee extra time should he forget the payment. Certified mail is commonly designed to better insure that the proper person receives a particular piece of mail because certified mail receives a higher degree of care from the postal authorities than mail posted ordinarily. Appellee argues, however, that the notice would have remained at his address if sent by ordinary mail and thus he would have received it. We cannot agree with this contention because certified mail was better calculated to inform him of the overdue payment. We take judicial notice that a memorandum is left informing a person when an attempt to deliver certified mail is made. Furthermore, the contract provided that the notice would be deemed to have been received two days after posting regardless of whether it was in fact received. Accordingly, we hold that notice by certified mail was sufficient to comply with this contract and, thus, commenced the running of the grace period for payment two days after posting on June 5, 1977. Consequently, the twenty-one day grace period expired on June 28, 1977.

We next turn to the question of whether appellee made a valid tender of payment within the grace period which ended June 28. Although the agreed judgment specifically provides for payment to be mailed to Held at his business address, ap-pellee claims to have telephoned Held’s office to offer payment and to have telephoned Lapp before the grace period ended; however, he was unsuccessful in talking to Held and Lapp refused to accept the orally tendered payment. We hold that any offer on the telephone to pay Lapp and any unsuccessful call to Held is not a valid legal tender. Valid tender consists of the actual production and relinquishment of the funds. Baucum v. Great American Insurance Co. of New York, 370 S.W.2d 863, 866 (Tex. 1963). Appellee argues that tender would have been futile here because Lapp refused payment. We cannot agree because Lapp’s refusal to accept payment did not excuse tender since he was not the person authorized by the agreed judgment to accept payment. Appellee should have delivered payment to Held at his business address prior to June 28. Since he did not do so, appellants properly accelerated payment under the terms of the agreed judgment.

Accordingly, we reverse the injunction of the trial court and render judgment for appellant decreeing that $23,800 plus $1,000 attorney’s fees is due and owing appellant by appellee.

      . This case was tried by agreement on depositions, briefs and pleadings, which included this affidavit.