author: MAUS, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gary ROHRER, Defendant-Appellant.
    No. 11066.
    Missouri Court of Appeals, Southern District, Division Two.
    Oct. 22, 1979.
    Motion for Rehearing and for Transfer Denied Nov. 9, 1979.
    Application to Transfer Denied Dec. 6, 1979.
    James Ashcroft, Atty. Gen., Michael P. Donegan, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul M. Storment, Jr., Storment, Steg-meyer & Paridon, Belleville, Ill., for defendant-appellant.
   MAUS, Judge.

The defendant was charged in two counts with (I) possession of marijuana and (II) growing and cultivating marijuana. A jury found him guilty upon Count I and not guilty upon Count II. On appeal, defendant’s sole allegation of error is that the trial court erred in not quashing a search warrant and in not suppressing evidence seized as a result of that warrant. In turn, this allegation is founded upon the assertion that the affidavits upon which the warrant was issued do not within the constitutional meaning establish “probable cause”. U.S. Const. Amend. IV; Mo.Const. Art. I § 15.

In the consideration of the problems of search and seizure, by necessity, the controlling opinions express much judicial philosophy (an analysis of the grounds and concepts expressing fundamental beliefs) in balancing the rights of the individual against the interests of society. In determining the validity of the issuance of a search warrant this analysis centers upon the constitutional prerequisite of “probable cause”. Such expressions have seemingly created a thicket of judicial variances difficult to penetrate to visualize the boundary lines established. Such expressions have been described as “complex analyses and obfuscatory language”. Spinelli v. United States, 393 U.S. 410, 435, 89 S.Ct. 584, 598, 21 L.Ed.2d 637, 654 (1969). Nevertheless, it is the duty of law enforcement officers and courts issuing search warrants to proceed within these boundaries. It is the duty of the trial court and this court to determine that they have done so. While it is undertaken with fear and trepidation of adding to the obfuscation, a review of the cases seems necessary to the disposition of this appeal.

In substance the affidavit upon which the warrant was issued on April 8, 1977, to search the residence of Gary Rohrer was based stated: That the affiant was a deputy sheriff and major crime investigator; that on April 7, 1977, an informant stated she had recently seen a large quantity of marijuana in the attic of the defendant’s residence; that the marijuana was currently in the attic; that the informant gave detailed directions on the route to the rural residence; that this informant also gave information and directions to a field of marijuana the defendant was growing; and that using these directions officers easily located the residence and the field of marijuana. The affiant further stated that it was common knowledge the defendant had for the past few years been involved in the cultivation and sale of controlled substances; that the defendant had been seen on numerous occasions associating with known drug dealers and users; and that the defendant had a reputation of being a drug dealer.

In testing and interpreting the affidavit to show probable cause we are admonished to consider the following guideline:

“[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684, 689 (1965).

Other principles to be observed include the following: “[0]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 590, 21 L.Ed.2d at 645. Probable cause may be established by information provided by an informant and it is not necessary that the informant be named in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, it is when a warrant is based upon such information that the analysis to be employed in determining probable cause is most complex.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), a paid informer who had previously supplied accurate information gave an officer very detailed information concerning the defendant and his anticipated transportation of heroin. In finding the officer had probable cause to arrest the defendant the court said: “And surely, with every other bit of Hereford’s information being thus personally verified, Marsh had ‘reasonable grounds’ to believe that the remaining unverified bit of Hereford’s information — that Draper would have the heroin with him — was likewise true”. Draper v. United States, supra, 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 332.

In Aguilar v. Texas, supra, a search warrant was issued on the basis of an affidavit that the affiant received information from a credible person and believed the defendant possessed narcotics. The court noted the affidavit did not state that the informant spoke with personal knowledge, and the magistrate accepted “the informant’s ‘suspicion,’ ‘belief’ or ‘mere conclusion’ ”. The court then announced a standard which is referred to as the “two prong” test: “[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, supra, 378 U.S. at 114-115, 84 S.Ct. at 1514, 12 L.Ed.2d at 729.

v. United States, supra, a search warrant was issued on the basis of an affidavit reciting the results of a surveillance of the defendant’s activities on five days. This included trips on four days to an apartment house, on one of which when he was followed further he entered an apartment in which there were two phones. It further stated the defendant was known as a bookmaker and gambler and as an associate of bookmakers and gamblers. It concluded that a reliable informant said the defendant was conducting a bookmaking operation by those two telephones. In enunciating the standards by which the sufficiency of the affidavit was to be measured the court said: In Spinelli

“The informer’s report must first be measured against Aguilar’s standards so that its probative value can be assessed. If the tip is found inadequate under Aguilar, the other allegations which corroborate the information contained in the hearsay report should then be considered. At this stage as well, however, the standards enunciated in Aguilar must inform the magistrate’s decision. He must ask: Can it fairly be said that the tip, even when certain parts of it have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration?” Spinelli v. United States, supra, 393 U.S. at 415, 21 L.Ed.2d at 643, 89 S.Ct. at 588.

The court then found the affidavit did not pass either prong of the Aguilar test: the affiant offered no reason in support of his conclusion the informant was reliable; and the tip did not contain a sufficient statement of the underlying circumstances from which the informant concluded the defendant was conducting a bookmaking operation. In this connection the court emphasized the fact the informant did not profess any personal knowledge.

“In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.” Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed.2d at 644.

The detail in the report in Draper was cited as a basis from which a magistrate “could reasonably infer that the informant had gained his information in a reliable way”. Spinelli v. United States, supra, 393 U.S. at 417, 89 S.Ct. at 589, 21 L.Ed.2d at 644. The observed activities of the defendant were found not to be of themselves indicative of criminal activity and not sufficient to support probable cause. The court declared the assertion the defendant was a known gambler could not be used to give additional weight to an otherwise insufficient affidavit. The affidavit was condemned because it “falls short of the standards set forth in Aguilar, Draper and our other decisions that give content to the notion of probable cause.” Spinelli v. United States, supra, 393 U.S. at 419, 89 S.Ct. at 590, 21 L.Ed.2d at 645.

United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), involved, as does this case, the report of an informant expressly relating personal observation. In part I of the opinion (in which four justices concurred) the court cited with approval Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) also involving recent personal observations. Such recent personal observation established that the informant’s information had been gained in a reliable way, distinguishing the case from Spinelli. The fact the affidavit declared the informant to be “prudent” rather than “credible” was not decisive and noted that a bare statement that the affi-ant believed the informant to be truthful would not in itself supply a factual basis for credibility. However, the affidavit, which was detailed in nature, when coupled with the affiant’s knowledge of the defendant’s background, contained an ample factual basis for believing the informant. In part II of the opinion (in which three justices concurred), the court emphasized the “substantial basis” test applied in Jones, which included personal observation, previously accurate information supplied by the informant, corroboration by other . unnamed sources and the defendant’s reputation. Previous reliability was declared not to be essential. The Spinelli prohibition against consideration of the defendant’s reputation was disapproved. In part III of the opinion (in which four justices concurred) the court emphasized that under the circumstances, the informant’s admission of his own guilt in long time participation in criminal activity of buying illegal whiskey lent credence to the information supplied. Mr. Justice White agreed with Part III and concluded that as a whole the affidavit was sufficient. Four Justices dissented. The thrust of the dissent is that the credibility of the informant was not established. The dissent ascribes no weight to the affiant’s assertion the informant was a credible person. The establishment of credibility by reason of personal observation was not approved. It was suggested that credibility might be supplied if the informant was “somehow responsible to the affiant”, or by “a more than ordinarily detailed description of the suspect’s criminal activities”, United States v. Harris, supra, 403 U.S. at 593, 91 S.Ct. at 2086-2087, 29 L.Ed.2d at 739, orjby a description of “general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like”. United States v. Harris, supra, 403 U.S. at 600, 91 S.Ct. at 2090, 29 L.Ed.2d at 743. The dissent declined to find the requisite assurance of credibility, especially in the absence of a showing of lack of immunity from prosecution, in the admission of participation in criminal activities. Probable cause was not established by a prior confiscation of illegal whiskey, or in general reports concerning the defendant’s criminal activities. The dissent did not deal with establishing credibility by corroboration other than to observe that the informant’s information had not been corroborated and to note “it will always be open to the officer to seek corroboration of the tip.” United States v. Harris, supra, 403 U.S. at 600, 91 S.Ct. at 2090, 29 L.Ed.2d at 743.

Aguilar condemned a warrant based upon an affidavit alleging only reliable information and set forth a two-prong standard. Spinelli, in dealing with information not shown to be based upon personal observation, finds it insufficiently detailed and insufficiently corroborated by seemingly innocent activities to be trustworthy. However, it would seem the decisions do not establish a single rigid formula for determining probable cause. Apparently whether or not probable cause is established may depend on a variety of factors including: the extent of detailed information provided, whether or not the information is based upon personal observation, or whether or not it is corroborated, and the nature and extent of that corroboration. Spinelli, said to be the most restrictive decision, recognizes the viability of Draper, Ventresca, and McCray, supra, n. 3. It recognizes that a tip “when certain parts of it have been corroborated by independent sources” can be “as trustworthy as a tip which would pass Aguilar’s tests without independent corroboration”. Spinelli v. United States, supra, 393 U.S. at 415, 89 S.Ct. at 588, 21 L.Ed.2d at 642.

The impact of these decisions has been summarized: “Spinelli thus stands squarely for the proposition that even if the two-pronged test of Aguilar is not met, the information before the magistrate may be sufficient if, as in Draper, it is sufficiently detailed, or sufficiently corroborated, to supply as much trustworthiness as does thé Aguilar test.” United States v. Marihart, 472 F.2d 809, 813 (8th Cir. 1972).

“In Harris, there was no averment of underlying circumstances to support the informer’s credibility and thus the first of Aguilar’s two prongs was not satisfied. Furthermore, unlike Draper, none of the tip was corroborated by independent investigation. The corroboration consisted solely of the suspect’s past record and reputation and other unspecified tips from undisclosed informants. The Court nevertheless affirmed the validity of the warrant, primarily because, according to the Chief Justice’s plurality opinion, the underlying circumstances by which the informer acquired his information were said by the informer to be firsthand observation and activity, and because the credibility of this claim of firsthand knowledge was bolstered both by the fact it constituted an admission against penal interest and because the substance of the claim was corroborated to the extent mentioned above. ... It does seem to us, however, that in view of the concurring opinions of Mr. Justice White in Spinelli and Mr. Justice Blackman in Harris, in view of the marked difference in tone between Harris and Spinelli, and in view of the split voting pattern in those two cases, the lower federal courts would be well served if the Supreme Court would clarify its views as to warrants and searches premised upon informers’ tips.” United States v. Marihart, supra, 472 F.2d at 813-814.

In speaking of establishing the credibility of an informant to satisfy that prong of the Aguilar test it has been observed:

“However, reliability of an informant may be demonstrated to the magistrate in many collateral ways. ... In some instances where it is alleged that the informant was known to the affiant or had passed on previous information, this has been held to be a sufficient test of the reliability of the informant. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). However, where the affiant officer does not know the informant it would be impossible for the affiant to vouch as to the informer’s reliability.
Under such circumstances reliability of an informant may best be established by the affiant relating some corroboration of the story which the informant tells. Furthermore, the underlying circumstance even without corroboration may have built-in credibility guides to the informant’s reliability. The essence of reliability may be found in an informant’s statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an ‘eyewitness’ to an actual crime perpetrated demonstrates sufficient ‘reliability’ of the person.” McCreary v. Sigler, 406 F.2d 1264, 1268 (8th Cir. 1969). (Emphasis added).

The defendant relies upon Spinelli v. United States, supra, and State v. Phillips, 532 S.W.2d 533 (Mo.App.1976). He emphasizes that the affidavit does not set forth the informant had previously proved reliable or a statement the informant was reliable. While such allegations may aid in establishing the validity of a search warrant, they are not absolutely essential. McCreary v. Sigler, supra; State v. Phillips, supra. The basic reason the search warrants were found invalid in Spinelli v. United States, supra, and State v. Phillips, supra, is that the affidavits did not set forth the underlying circumstances from which the informant concluded the one defendant was bookmaking or the other defendant possessed narcotics. That element is, as observed in those cases, supplied by personal observation, which clearly distinguishes those cases. Defendant fails to note the important distinction between an informant who divulges evidence of a crime obtained from sources unknown to the magistrate and the informant in this case who related matters gathered from his own observation. Cundiff v. United States, 501 F.2d 188 (8th Cir. 1974). Here, the informant gave detailed information based on personal observation. Such a statement may in itself sufficiently establish reliability of the informant. Cundiff v. United States, supra; United States v. Harrelson, 442 F.2d 290 (8th Cir. 1971); United States v. Wahlquist, 438 F.2d 219 (8th Cir. 1971). Also State v. Bradley, 485 S.W.2d 408 (Mo.1972). In addition, in this case by the use of that information the residence and field of marijuana were easily located. The reliability of the informant was best “established by the affi-ant relating some corroboration” of the informant’s information. McCreary v. Sigler, supra, 406 F.2d at 1269. Also see United States v. Howe, 591 F.2d 454 (8th Cir. 1979); United States v. Garrett, 565 F.2d 1065 (9th Cir. 1977). Under the authorities cited the warrant was issued on probable cause. Having so decided, the state’s contention the defendant did not preserve his claim of error by proper objection need not be considered.

The judgment is affirmed.

All concur.

      . Webster’s New Collegiate Dictionary.

      . Concerning subsequent disclosure see V.A. M.R. Crim.Rule 25.39; State v. Edwards, 317 S.W.2d 441, 446 (Mo. banc 1958); State v. Wandix, 590 S.W.2d 82 (Mo. banc 1979) and U.S. Supreme Court Standard 510, Weinstein’s Evidence, § 510.

      . The alternative the informant was “credible or his information reliable” has received but little notice.

      . The other cases cited are United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741 (1965) and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). These cases have received but little express attention as setting forth standards of probable cause, although both involved informant’s tips corroborated by officers observations of incriminating circumstances or suspicious activities. United States v. Ventresca, supra, was cited with approval in Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976).

      . In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, (1959) and United States v. Marihart, 472 F.2d 809 (8th Cir. 1972), a detailed statement demonstrated that an informant gained his information in a reliable way.


source: Caselaw Access Project

author: TOM G. DAVIS, Judge.

license: Public Domain

text:
    Claude Edward PARKS, Appellant, v. The STATE of Texas, Appellee.
    No. 61505.
    Court of Criminal Appeals of Texas.
    Oct. 10, 1979.
    Rehearing En Banc Denied Nov. 14, 1979.
    Dan D. Pitzer, Duncanville, Lawrence B. Mitchell, Dallas, for appellant.
    Henry Wade, Dist. Atty. and J. T. Lang-ford, Asst. Dist. Atty., Dallas, 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 driving while intoxicated. Art. 67017 — 1, V.A.C.S. Following appellant's plea of nolo contendere before the court, punishment was assessed at three (3) days in jail and a fine of two hundred and fifty ($250) dollars.

In his sole ground of error, appellant contends that the trial court erred in failing to consider the full range of punishment which could be imposed following appellant’s conviction. The trial court stated that appellant was not eligible for misdemeanor probation under Art. 42.13, V.A.C. C.P. Appellant maintains that he was eligible for probation in spite of the fact that he had been granted probation in another cause for driving while intoxicated some twelve (12) days earlier, due to the fact that the previous order granting probation was on appeal to this Court.

The trial court recognized that appellant’s prior misdemeanor conviction for a like offense in which probation was granted had been appealed. The court found that since the misdemeanor statute, unlike the felony probation statute, did not refer to “final conviction,” that appellant was not eligible for probation. The appellant points to the court’s statement that it would grant appellant probation if he were eligible.

We find it unnecessary to reach the question of whether the trial court was in error in holding that appellant was not eligible for probation under the former misdemean- or probation statute.

Art. 42.13, Sec. 8(b), V.A.C.C.P. provided: “The refusal of a court to grant probation [in misdemeanor cases] is not appealable unless the jury hearing the case has recommended probation in its verdict and the defendant has satisfied the requirements of Sec. 3(a)(1), (2), (3), and (4) of this Article.”

In light of the foregoing provision of Art. 42.13, supra, the failure of the trial court to grant probation in a misdemeanor case “is not appealable” unless the exception set forth in the statute exists. In the instant case such exception clearly did not exist since trial was before the court.

The appeal is dismissed.

      . Art. 42.13, Sec. 3(a)(2) (repealed effective August 27, 1979) provided that a defendant was eligible for probation if:
      “he has not been granted probation nor been under probation under this Act or any other Act in the preceding 5 years; provided that the court may grant probation regardless of the prior probation of the defendant, except for a like offense within the last 5 years;”

      . We note Art. 42.13, supra, was repealed effective August 27, 1979. See, Acts 1979, 66th Leg., p. 1514, ch. 654, Sec. 1. New Art. 42.13, Sec. 8(b), V.A.C.C.P. provides:
      “Any probationer who removes himself from the State of Texas without permission of the court having jurisdiction of the case shall b*> deemed and considered a fugitive from jus tice and shall be subject to extradition as now provided by law. No part of the time that the defendant is on probation shall be considered as any part of the time that defendant shall be sentenced to serve. The right of the probationer to appeal to the Court of Criminal Appeals for a review of the trial and conviction as provided by law shall be accorded the probationer at the time the defendant is placed on probation. When the probationer is notified that his probation is revoked for violation of the conditions of probation and he is called on to serve a sentence in jail or in an institution operated by the Texas Department of Corrections, he may appeal the revocation.”
      Appellant was convicted, sentenced, and gave notice of appeal on October 16, 1978. Therefore, this attempted appeal is governed by the statute in effect at the commencement of appellant’s trial. See, Ex Parte Abahosh, 561 S.W.2d 202; Jones v. State, 163 S.W. 81.


author: DOUGLAS, Judge.

text:
    Ex parte Thomas ELLIS.
    No. 61413.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 10, 1979.
    Rehearing En Banc Denied Nov. 14, 1979.
    Floyd D. Holder, Jr., Lubbock, for appellant.
    John T. Montford, Dist. Atty., and Yvonne Faulks, Asst. Crim. Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and CLINTON, JJ.
   OPINION

DOUGLAS, Judge.

This is an extradition proceeding. An application for writ of habeas corpus was filed pursuant to Article 51.13, V.A.C.C.P. The appeal is from an order denying relief and ordering petitioner remanded to an agent for transfer to North Carolina.

In July of 1970, petitioner was convicted in North Carolina for the offense of armed robbery and his punishment was assessed at fifteen years. In April of 1972 he, was convicted again in North Carolina of escape from the state department of corrections and was sentenced to a six month prison term. The latter judgment recited that the sentence would begin “at the expiration of any and all sentences” then being served in the state prison system. On July 20, 1973, petitioner escaped from prison again but was not apprehended by the North Carolina authorities.

In January of 1975, petitioner was convicted in the State of Oklahoma for the possession of a controlled drug with intent to distribute. His punishment was assessed at seven years. The Oklahoma judgment recites that petitioner was being sentenced pursuant to the Uniform Disposition of Criminal Cases Upon Their Merits Act. Title 22, Oklahoma Statutes, Section 1145.1 et seq. Under that statute, the court stated that with the permission of the State of North Carolina petitioner would be allowed to plead guilty to the 1973 escape charge as well as the Oklahoma drug charge. Petitioner’s sentence, again with the permission of North Carolina, was to satisfy the 1970 armed robbery prison term still remaining, the 1973 escape charge and the 1975 Oklahoma drug charge. No mention was made of the 1972 escape charge and conviction.

Petitioner served his full Oklahoma sentence and, upon release, ultimately made his way to Lubbock. There, on February 15, 1979, petitioner was arrested on an extradition warrant from the State of North Carolina on the charge of escape.

Petitioner contends that the extradition warrant is invalid because it would subject him to double punishment for his North Carolina convictions in violation of the double jeopardy clause. Amendment 5, United States Constitution; Article 1, Section 14, Texas Constitution. In short, he argues that the Oklahoma judgment and sentence satisfied the demands of the State of North Carolina. We disagree.

An examination of the Oklahoma judgment reveals no mention of petitioner’s 1972 escape and conviction. It merely recites that petitioner’s sentence was in satisfaction of the Oklahoma charges, the 1970 North Carolina armed robbery and the 1973 North Carolina escape. The 1972 North Carolina escape judgment recites that petitioner’s six month sentence for escape would begin at the expiration of any and all then-pending sentences.

Whether petitioner has satisfied the 1972 sentence imposed in North Carolina is not for this Court to decide. The appropriate forum would be the courts of North Carolina. Ex parte McCarthy, 472 S.W.2d 759 (Tex.Cr.App.1971).

The proceedings are regular. The judgment is affirmed.


author: DALLY, Judge.

text:
    Freddie Roy THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 58424.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 31, 1979.

      Walter F. Splawn, Austin, for appellant.
    Ronald D. Earle, Dist. Atty., and Bill White, Asst. Dist. Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
    Before ROBERTS, PHILLIPS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from the conviction for the offense of burglary; the punishment, enhanced by two prior felony convictions, is imprisonment for life.

The appellant asserts in one of his grounds of error that a prior conviction used to enhance the punishment is void. It appears that he is correct, and therefore the judgment must be reversed.

To enhance the punishment in this case it was alleged that the appellant was convicted in Cause No. 46,383 in the 167th District Court of Travis County for the offense of theft. The indictment in Cause No. 46,383 in pertinent part alleges:

“ . . . that Freddie Roy Thomas on or about the 4th day of February A. D. 1974, and before the presentment of the indictment, in the County of Travis, and State of Texas, with intent to deprive the owner, Jake Sandgarten, of property, namely, lawful United States currency, did unlawfully exercise control over and obtain such property which had a value of two hundred dollars ($200.00) or more.”

The indictment in Cause No. 46,-383 is fundamentally defective because it fails to allege that the property was taken without the effective consent of the owner. V.T.C.A. Penal Code, Sec. 31.03(b)(1); Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1976); Bradley v. State, 560 S.W.2d 650 (Tex.Cr.App.1978). An indictment which is fundamentally defective is subject to collateral attack. Ex parte McCurdy, 571 S.W.2d 31 (Tex.Cr.App.1978); Ex parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978).

Since the jury and not the court assessed the appellant’s punishment we cannot reform the judgment and we cannot remand this case to the trial court for a new trial on punishment only. V.T.C.A. Penal Code, Sec. 12.42; Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977).

The judgment is reversed and the cause is remanded to the trial court.


text:
    Ex parte Daniel Craig COOPER.
    No. 62645.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 31, 1979.

      Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

This is a post conviction proceeding brought under the provisions of Art. 11.07, V.A.C.C.P.

The petitioner was convicted of the offense of possession of marihuana on February 25, 1971, in Cause No. 7725 in the 43rd District Court of Parker County. The petitioner asserts that the conviction is void and that the threatened use of the conviction to enhance punishment in a subsequent proceeding poses sufficiently grave collateral consequences as to entitle him to have the judgment in Cause No. 7725 set aside.

Petitioner waived indictment by a grand jury and pled guilty to a felony information. The petitioner’s complaint is that the information was fatally defective because it failed to allege that the prosecution was brought “In the name and by authority of The State of Texas.”

Art. V, Sec. 12 of the State Constitution, in part, provides:

“The style of all writs and process shall be, ‘The State of Texas.’ All prosecutions shall be carried on in the name and by authority of the State of Texas, and shall conclude: ‘Against the peace and dignity of the State.’ ”

Art. 21.02, V.A.C.C.P., in part, provides:

“An indictment shall be deemed sufficient if it has the following requisites:
“(1) It shall commence, ‘In the name and by authority of The State of Texas.’ ”

It has long been held that an indictment or an information must commence “In the name and by authority of The State of Texas” and these words have been held to be indispensible. Sainé v. State, 14 Tex.App. 144 (1880); Jefferson v. State, 24 Tex.App. 535, 7 S.W. 244 (1888); Treadaway v. State, 61 Tex.Cr.R. 546,135 S.W. 147 (1910); Alvarado v. State, 83 Tex.Cr.R. 181, 202 S.W. 322 (1918). This constitutional requirement is a matter of substance rather than of form. Cox v. State, 8 Tex.App. 254. (1880).

Although minor variations in the wording of the required constitutional and statutory language, such as adding the word “the” before the word “authority”, have been held to be immaterial, Morris v. State, 115 Tex.Cr.R. 503, 28 S.W.2d 155 (1930); Banks v. State, 107 Tex.Cr.R. 221, 296 S.W. 563 (1927); Porter v. State, 86 Tex.Cr.R. 23, 215 S.W. 201 (1919); Moss v. State, 60 Tex.Cr.R. 268, 131 S.W. 1088 (1910); Weaver v. State, 76 S.W. 564 (Tex.Cr.App.1903), the complete omission of the required constitutional statutory wording in the present case is controlled by long-standing precedent.

For the reason stated the relief is granted. It is so ordered.


author: ROBERTS, Judge.

text:
    Ex parte Jimmy Paul ROGERS.
    No. 62774.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 31, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

In his post-conviction application for ha-beas corpus relief, the applicant claims that the indictment on which he was convicted was fundamentally defective for failing to allege a culpable mental state. The indictment alleged that the appellant,

“on or about the 11th day of December 1977, was then and there the driver of, and person in control of, a motor vehicle in Tarrant County, Texas, and such motor vehicle, then and there being driven by and under the control of the said Jimmy Paul Rogers, did then and there strike and collide with another vehicle containing a person, to-wit: S_ M-, thereby causing injury to the said S_M_and he, the said Jimmy Paul Rogers, did fail, neglect, and refuse to render to the said S_M_all necessary aid; . . . .”

The requirement of a culpable mental state applies to the offense of failing to stop and render aid (V.A.C.S., Article 6701d, Section 38), which this indictment sought to allege. Goss v. State, 582 S.W.2d 782 (Tex.Cr.App.1979). When an indictment fails to allege a required culpable mental state, it is fundamentally defective and habeas corpus relief will be granted. Ex parte Winton, 549 S.W.2d 751 (Tex.Cr.App.1977). The applicant will be granted habeas corpus relief because the indictment failed to allege the culpability element of the offense.

The conviction is set aside and the applicant is ordered released from any restraint imposed as a result of the indictment; the indictment is ordered dismissed.

       See V.T.C.A., Penal Code, Sec. 6.02.


author: PHILLIPS, Judge.

text:
    Ex parte Raleigh George SPAIN, Jr.
    No. 62656.

    Court of Criminal Appeals of Texas, En Banc.
    Nov. 7, 1979.

      Paul G. Johnson, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is a post-conviction proceeding brought under Article 11.07, V.A.C.C.P.

On May 11, 1976, petitioner pleaded guilty to the offense of burglary of a habitation; punishment was assessed at imprisonment for 10 years, probated. On January 8, 1979, the State filed a motion to revoke petitioner’s probation, alleging that petitioner violated the conditions of his probation when he failed to report to his probation officer; failed to pay court costs, attorney’s fees, and probation fees; and failed to notify his probation officer of a change in residence. Upon holding a revocation hearing the court found that petitioner violated all of the above conditions and revoked his probation. The court sentenced petitioner to imprisonment for eight years.

Petitioner urges that he was denied due process of law because the prosecutor who filed the State’s motion to revoke probation and who represented the State at the revocation hearing had originally represented petitioner as defense counsel when petitioner pleaded guilty. We agree and grant relief.

Article 2.01, V.A.C.C.P., provides in part that

Each district attorney shall represent the State in all criminal cases in the district courts of his district, except in cases where he has been, before his election, employed adversely. [Emphasis added]

This duty to avoid a conflict of interest has long been imposed on the prosecutors of this State. See Article 25 of the former Code of Criminal Procedure; Garrett v. State, 94 Tex.Cr.R. 556, 252 S.W. 527 (Tex.Crim.App.1923, Opinion on Motion for Rehearing).

Section 1.2 of the American Bar Association’s Standards Relating to the Prosecution Function and the Defense Function provides that

(a) A prosecutor should avoid the appearance or reality of a conflict of interest with respect to his official duties.
(b) A conflict of interest may arise when, for example, .
(iii) a former client or associate is a defendant in a criminal case.

The commentary to this section states

. . When a conflict of interest may arise the prosecutor should recuse himself and make appropriate arrangements for the handling of the particular matter by other counsel . . . It is of the utmost importance that the prosecutor avoid participation in a case in circumstances where any implication of partiality may cast a shadow over the integrity of his office.

When a district attorney prosecutes someone whom he previously represented in the same case, the conflict of interest is obvious and the integrity of the prosecutor’s office suffers correspondingly. Moreover, there exists the very real danger that the district attorney would be prosecuting the defendant on the basis of facts acquired by him during the existence of his former professional relationship with the defendant. Use of such confidential knowledge would be a violation of the attorney-client relationship and would be clearly prejudicial to the defendant. See Gajewski v. United States, 321 F.2d 261 (8th Cir. 1963). The prosecutor in this case should never have initiated or participated in the revocation proceedings.

When an appointed counsel has an actual conflict of interest, a defendant is denied his right of effective representation, without the necessity of a showing of specific prejudice. Harrison v. State, 552 S.W.2d 151 (Tex.Cr.App.1977); Stutes v. State, 530 S.W.2d 309 (Tex.Cr.App.1975); Zuck v. Alabama, 588 F.2d 436 (5th Cir. 1979). We likewise conclude that when a prosecutor proceeds against a defendant whom he formerly represented as defense counsel in the same case, no specific prejudice need be shown by the defendant.

We hold that Article 2.01, supra, has been violated, and petitioner has been denied due process of law under the Fourteenth Amendment to the Constitution of the United States and Article I, Section 19 of the Texas Constitution.

Accordingly, the writ is granted, and the order revoking probation in Cause No. 5488 is set aside. Petitioner is ordered released from confinement and returned to probationary status under the jurisdiction of the 118th District Court of Howard County. A copy of this opinion shall be forwarded to the Texas Department of Corrections.

It is so ordered.


author: MURRAY, Justice.

text:
    The TEXAS BOARD OF PRIVATE INVESTIGATORS AND PRIVATE SECURITY AGENCIES, Clema Sanders, Executive Director, Appellants, v. The BEXAR COUNTY SHERIFF’S RESERVE, an Association and Jimmy Hasslocher, President, Appellee.
    No. 16167.
    Court of Civil Appeals of Texas, San Antonio.
    July 25, 1979.
    Rehearing Denied Sept. 25, 1979.
    John L. Hill, Atty. Gen. of Texas, David M. Kendall, Jr., First Asst. Atty. Gen., Robert Steve Bickerstaff, Jr., Charles J. Maddox, Jr., Asst. Attys. Gen., Austin, for appellants.
    Galen Gilbert, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

This is a suit brought by the Bexar County Sheriff’s Reserve and its president, Jimmy Hasslocher, against the Texas Board of Private Investigators and Private Security Agencies, and against its executive director, Clema Sanders, for injunctive relief and for a declaratory judgment that Section 3(a)(3)(d) of Article 4413(29bb), Texas Revised Civil Statutes, is unconstitutional. Appellants will hereinafter be referred to as “the Board,” and appellees will be referred to by the name, “Reserves.” Article 4413 (29bb) of the Texas Revised Civil Statutes will be referred to as “the Act.” The 224th District Court of Bexar County, Texas, declared Section 3(a)(3)(d) of the Act unconstitutional and permanently enjoined the Board from enforcing that section. From this judgment the Board duly perfected its appeal to this court.

Under the Act the Board is primarily responsible for regulating the investigator and private security industry in the State of Texas. The Board is empowered to license investigators and private security agencies and to issue security officer commissions. A security officer commission entitles an individual to carry a handgun, under certain conditions, while engaged in private security guard endeavors.

Section 19(a) of the Act provides that it shall be unlawful for an individual employed as a private security officer to carry a handgun while performing his duties unless he has been issued a security officer commission by the Board. Section 3(a)(3) of the Act provides that Section 19(a) does not apply to full-time peace officers, but does apply to reserve peace officers. Therefore, a reserve peace officer is required to obtain a security officer commission before he can carry a handgun while employed as a private security officer, and a full-time peace officer is not required to obtain a security officer commission.

Section 3(a)(3) reads as follows:
This Act does not apply to:
(3) a person who has full-time employment as a peace officer as defined by Article 2.12, Code of Criminal Procedure, 1965, who receives compensation for private employment on an individual or an independent contractor basis as a patrolman, guard, or watchman if such person is:
(a) employed in an employee-employer relationship; or
(b) employed on an individual contractual basis
(c) not in the employ of another peace officer; and
(d) not a reserve peace officer;

Tex.Rev.Civ.Stat.Ann. art. 4413(29bb), § 3(a)(3) (Vernon Supp. 1978 — 1979) (emphasis added).

Article 6869.1, Texas Revised Civil Statutes, permits the Commissioners Court of any county in the State of Texas to authorize the sheriff or constable of the county to appoint reserve peace officers. Reserve peace officers serve without compensation at the discretion of the sheriff or constable. While on active duty, they are vested with the same rights, privileges, obligations, and duties of any other peace officer of the State of Texas.

The Reserves allege that Section 3(a)(3)(d) of the Act, which does not exclude reserve peace officers, violates the equal protection clause of the fourteenth amendment of the United States Constitution because full-time peace officers are exempt from the Act. The Board contends that the legislature properly noted the differences between regular and reserve peace officers and that these differences clearly form a rational basis for any dissimilarity in treatment under the Act. Both parties agree that the proper test to determine the constitutionality of the Act is the rational basis test. The United States Supreme Court in New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976), stated:

Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. ... In short, the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines

427 U.S. at 303, 96 S.Ct. at 2517.

Chief Justice John Marshall, seven years after his opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803), which established the doctrine of judicial review by holding that the Supreme Court of the United States could declare an Act of Congress invalid, wrote on the topic of judicial review as follows:

The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 128, 3 L.Ed. 162 (1809).

In considering whether there is a rational basis for applying the Act to reserve peace officers and exempting regular peace officers, the test is whether there is any basis for the classification which could have seemed reasonable to the legislature. San Antonio Retail Grocers v. Lafferty, 156 Tex. 574, 297 S.W.2d 813 (1957); Gerard v. Smith, 52 S.W.2d 347 (Tex.Civ.App.—El Paso 1932, writ ref’d). The Act is obviously intended by the legislature to insure the competency and knowledge of persons allowed to carry handguns in public places. The Board contends that there are three major distinctions between regular and reserve peace officers, which provide a rational basis for Section 3(a)(3)(d). These distinctions are in the nature of training, supervision, and experience. We agree.

In reference to the training distinction, the Texas Commission of Law Enforcement Officers Standards and Education, pursuant to Sections 2(b) and 2A of Article 4413(29aa), Texas Revised Civil Statutes, has promulgated certain minimum training standards for regular and reserve peace officers. The minimum training required for certification as a regular peace officer is 240 hours, but the minimum required for certification for reserve peace officer is only seventy hours. Of the required minimum training hours, reserve peace officers must complete ten hours of training in firearms, but regular peace officers must complete sixteen hours of training in firearms. The legislature is presumed to have been cognizant of the disparity in the amount of training required.

Concerning the supervision distinction, it is undisputed that the Reserves are under the direct supervision of a regular peace officer ninety-nine percent of the time when called to active duty by the sheriff or constable. While on active duty, the Reserves are allowed to carry handguns and are unaffected by the provisions of the Act. It is only when reserve peace officers are engaged in a private enterprise without direct supervision from regular peace officers that the Act applies and requires them to have a security officer commission from the Board.

The third major distinction between regular and reserve peace officers lies in the area of experience. Regular peace officers generally pursue law enforcement as a full-time vocation. Reserve peace officers serve without pay and devote a significantly smaller amount of time to the practice of law enforcement. It is conceivable that a reserve peace officer might never actually be called to serve on active duty, and we must assume that the legislature was also cognizant of this disparity in experience.

These distinctions between regular and reserve peace officers clearly form a rational basis for the reserve peace officers to be included under the provisions of the Act.

The judgment of the trial court is reversed and rendered that the statute is constitutional, and the injunction is dissolved.


author: McKAY, Justice.

text:
    FIRST NATIONAL BANK IN DALLAS, Independent Executor of the Estate of John Weldon Murchison, Deceased, Appellant, v. E. R. KINABREW, Appellee.
    No. 1219.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 20, 1979.
    Rehearing Denied Oct. 18, 1979.

      Joe Gray, C. Taylor Ashworth, Jenkins & Gilchrist, Dallas, for appellant.

      James W. Knowles, William C. Lowrey, Wilson, Miller, Spivey, Sheehy, Knowles & Hardy, Tyler, for appellee.
   McKAY, Justice.

This is a declaratory judgment action brought by appellee seeking a determination of the rights of the parties under a purported assignment to appellee of an overriding royalty interest in seven mineral leases.

Appellee alleged that J. W. Murchison, acting by and through his agent and attorney-in-fact, R. L. Van Cleave, duly authorized by a power of attorney dated January 23, 1961, executed and delivered to appellee on May 5, 1961, an assignment of an overriding royalty, thereby assigning to appellee one-eighth of eight-eighths of all the oil, gas, and other minerals produced, saved, and marketed from a 120.3-acre tract of land comprising an oil unit identified as the Cely-Henderson Unit and now identified as being Tract No. 846 in the Fairway (James Lime) Unit (being the Field Wide Unit). Said assignment was allegedly made as compensation for services rendered to the community estate of John W. Murchison and wife, Gertrude B. Murchison. Appellee further alleged that an oil well was completed on said tract, that appellant had recovered the costs of drilling, and that after the recovery of such costs, appellee was entitled to receive his overriding royalty. Appellee prayed for an accounting, for a declaration that he was entitled to one-eighth of eight-eighths of the production of oil, gas, and other minerals from the land following appellant’s recoupment of drilling costs, and for judgment against appellant for the value of one-eighth of eight-eighths of the production of oil, gas, and minerals from the date appellee became entitled thereto.

Appellant answered by general denial, and specifically that if the purported assignment was in fact executed by Van Cleave, said act was unauthorized by J. W. Murchison and was beyond the scope of authority of Van Cleave, for the reason that the power of attorney was a special power of attorney, not authorizing the assignment of any overriding royalty interest. Appellant further alleged that, the purported assignment having been made after the death of Gertrude Murchison (which occurred on April 25, 1961), J. W. Murchison no longer had authority to make a conveyance of community property; that even if the purported assignment would affect only the community interest of J. W. Murchison, it was invalid in that after the death of Gertrude Murchison, the only authority to pay debts and claims against the community estate of the Murchisons vested in J. W. Murchison as Independent Executor of the estate of his wife, and that the special power of attorney did not purport to authorize Van Cleave to act for the Independent Executor of the Estate of Gertrude Murchison; that the condition precedent to the assignment (that J. W. Murchison recover drilling costs) has not been met in that Murchison was entitled to recover more than $200,000 in costs and had recovered only $75,000; that Murchison did not own an entire one-eighth interest in all of the seven leases described in appellee’s petition; that the assignment does not purport to convey an overriding royalty of one-eighth of eight-eighths, but for various reasons, merely purports to convey an interest in a fractional part of the oil, gas, and other minerals; and that appellant was entitled to a $22,543.89 credit on any amount due appellee, because of a payment made in that amount by appellant to appellee. Appellant also stated a counterclaim for the return of the $22,543.89.

Originally appellee’s petition complained of J. W. Murchison individually and as Independent Executor and Trustee under the Will of Gertrude Murchison. Subsequently, C. W. Murchison, Jr., was substituted as Guardian of the Estate of J. W. Murchison. Then, upon the suggestion of the death of J. W. Murchison on February 28, 1974, the present appellant, as Independent Executor of the Estate of J. W. Murchison, was substituted as defendant. Previously, appellee had dropped J. W. Murchison, as Independent Executor and Trustee under the Will of Gertrude Murchison, as a party.

The trial court, following a hearing without a jury, rendered judgment in favor of appellee, declaring that appellee was entitled to an overriding royalty interest of one-eighth of eight-eighths in all the oil, gas, and other minerals produced, saved and sold from the tract of land, and ordering appellant to render a complete and. full accounting of all income and expenses from the oil production from said tract. Appellant has duly perfected its appeal to this court, bringing fifteen points of error.

At the outset we are met with a counterpoint by appellee, urging that we overrule appellant’s first nine points of error, all of which concern the validity of the assignment, for the reason that appellant had judicially recognized that appellee has a legal interest in the property at issue. There is in the record a document entitled “Stipulation and Agreement,” which states:

“WHEREAS, the above entitled and numbered cause [the present suit] is an action for declaratory judgment and involves a dispute between the parties thereto as to the ownership interest of the said W. R. KINABREW in and to certain oil and gas interest in Anderson County;
“WHEREAS, there is no dispute between the parties that the said J. W. MURCHISON is indebted to said W. R. KINABREW in some amount of money, the controversy involving only an accounting of the amount of money due Plaintiff, and the basis of calculation of what additional monies Plaintiff may be entitled to;
“WHEREAS, the said W. R. KINA-BREW desires to receive so much of said monies as are not indispute [sic] now being held by the said J. W. MURCHISON;
“NOW THEREFOR [sic], by and in consideration of the premises, the said W. R. KINABREW does hereby acknowledge receipt of the sum of TWENTY TWO THOUSAND FIVE HUNDRED FORTY THREE, AND 89/100 DOLLARS ($22,-543.89) of and from the said J. W. MURCHISON. It is understood and agreed by and between the parties that by the payment of such sum and the acceptance of such sum, neither party makes any admission or declaration against interest and the payment and acceptance of said sum or the method of arriving at same, shall not be entitled to any probative force in determining the controversy between the parties, save and except that it shall be offset against judgment [sic] to which the said W. R. KINABREW might otherwise be entitled.
“WITNESS the hands of the parties, by and through their respective attorneys of record this _ day of June, 1973.”

The document is signed by attorneys for both parties.

It is appellee’s contention that, by virtue of the above quoted stipulation, appellant has judicially admitted that appellee owns an interest in the property pursuant to the assignment and that the only controversy between the parties is the amount of money due appellee. Therefore, appellee urges that appellant has admitted the validity of the assignment.

In reply, appellant emphasizes the language of the document denying the making of any admission or declaration against interest by either party.

A judicial admission is a formal act, done in the course of judicial proceedings, which dispenses with the production of evidence and takes the matter out of the domain of proof so that neither court nor jury is required to make any finding in regard to it. Valdes v. Moore, 476 S.W.2d 936 (Tex.Civ.App.—Houston [14th] 1972, writ ref’d n. r. e.); 2 Texas Practice Series, McCormick and Ray, Evidence sec. 1127 at p. 24 (1956). A stipulation, similarly, is an agreement, admission, or concession made in a judicial proceeding by the parties thereto or their attorneys in respect to some matter incident thereto. 53 Tex.Jur.2d Stipulations sec. 1 at p. 313 (1964). Such a stipulation constitutes a contract between the parties and between the parties and the court. Id. A stipulation may relate to the matter of the issues to be tried, i. e., to fix, limit, or modify them. Id., sec. 5 at p. 317; Smith v. Leach, 70 Tex. 493, 7 S.W. 767, 768 (1888); W. T. Carter & Brother v. Ruth, 275 S.W.2d 126, 129 (Tex.Civ.App.—Beaumont 1955, no writ). State v. McHard, 432 S.W.2d 182, 183 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.). Inasmuch as a stipulation is a contract, the general rules for interpreting ordinary contracts are applied in construing stipulations, resort being had to the entire instrument, rather than to any specific part. 53 Tex. Jur. supra, sec. 14 at p. 327.

Appellant contends that the stipulation in no way acknowledges the validity of the assignment. It is true that the stipulation does not expressly state that the assignment is valid. That is immaterial, however, if the effect of the stipulation is to eliminate the validity of the assignment as an issue in the case. As noted, a stipulation clearly may limit the issues to be tried. The same point may be repeated in answer to appellant’s contention that the stipulation may not be used to determine the legal issues raised by its points of error. This is not a stipulation relating to a matter of law, but rather one which limits the issues to be tried.

Appellant emphasizes the language of the document denying the making of any admission or declaration against interest. The disclaiming language, however, refers to the act of paying the sum of money and not to the entire document itself. It is not the entire document that is not to be taken as an admission or declaration against interest, but merely the payment of the amount indicated that is not to be so taken. The disclaiming language makes no reference to the foregoing statements that Murchison was indebted to appellee and that the only controversy was as to the amount of such indebtedness. The document does not state, and we do not construe it to mean, that the prior statements, in paragraph two of the stipulation, are to be deprived of their plain meaning. Appellant would have us consider the disclaiming language alone and disregard the second paragraph. We deem it proper to consider the entire document and to give effect to all of its terms. The document complies with the requirements of Rule 11, T.R.C.P. The statements that Murchison was indebted to appellee and that the controversy was to be limited to the single issue of the amount due appellee and the basis of calculation thereof, were effective, when made, as a stipulation, limiting the issues to be tried in the case to the single, named issue.

The record before us indicates that the document was a part of the record before the trial court, in that it was attached to appellee’s request for admissions which was filed among the papers of the case, and, during the hearing, was admitted into evidence. Appellee, however, having secured such a stipulation, failed to mention it in his amended petitions and failed to argue its significance at the hearing. Indeed, appellee treated it as though it did not exist, arguing issues other than those to which the stipulation limited the controversy, specifically issues concerning the validity of the assignment. In such a situation, where it is clear that neither the parties nor the court treated the agreement as limiting the issues to be tried, and where the party who stood to gain the most from the stipulation (appellee) did not press its obvious import before the trial court for decision by that tribunal but waited to do so until the case was presented for appellate review, we are of the opinion that the stipulation should not be given effect here to limit the issues on appeal. Carley v. Parton, 75 Tex. 98, 12 S.W. 950, 952 (1889); See also Gambill v. Snow, 189 S.W.2d 33, 37 (Tex.Civ.App.—Eastland 1945, writ ref’d w. o. m.). Appellee’s counterpoint one is overruled.

We now proceed with our consideration of appellant’s points of error, the first of which asserts that Van Cleave’s authority as agent had been terminated prior to his execution of the assignment. It is appellant’s contention that Murchison’s execution of the power of attorney created an agency relationship between Van Cleave, as agent, and both Murchison and Mrs. Murchison, as joint principals. In support of this contention, appellant claims that the power of attorney pertained to community property of the Murchisons, and that Murchison was acting for the community estate in executing the power of attorney in that, under an existing statute (Article 4619, V.T.C.S., repealed in 1969), the husband had the sole right to dispose of community property. Appellant then argues that the death of one of two or more joint principals terminates the agency relationship as to all parties, and that since Mrs. Murchison died prior to Van Cleave’s execution of the assignment, he was without authority to do so. We believe that appellee has correctly pointed out the fallacy in appellant’s argument, viz., the power of attorney is not one executed by joint principals. It is signed by Murchison alone and there is no mention of Mrs. Murchison, as a joint principal or otherwise. Under existing law (Article 4619) Mrs. Murchison had no authority to dispose of community property; therefore, she had no power to do so through an agent. In Arbuckle v. Arbuckle, 214 S.W.2d 821 (Tex.Civ.App.—Waco 1948, writ ref’d n. r. e.), the court stated at p. 823:

“The law [Article 4619] [then provided] that during the coverture, the common property of the husband and wife may be disposed of by the husband alone, but it can be disposed of just as effectively when done by his agent with his full knowledge and consent.” [Emphasis added.]

Thus, clearly, Van Cleave acted pursuant to the power of attorney as agent of Murchison alone. Furthermore, while the husband, at the time the agency here was created, was not held to be a general agent of the wife, 30 Tex.Jur.2d Husband and Wife sec. 50 at p. 83 (1962), Article 4619 was held to have made, in effect, the husband the agent of the wife insofar as the management, control, and disposition of community property was concerned. Green v. Gomez, 348 S.W.2d 185, 187 (Tex.Civ.App.— Eastland 1961, no writ). Thus, the relationship of Van Cleave to Mrs. Murchison was that of a subagent and not as an agent to a joint principal. Accordingly, we hold that the power of attorney signed by Murchison and dated January 23, 1961, created an agency relationship between Van Cleave, as agent, and Murchison, as sole principal. Appellant’s first point of error is overruled.

In its second through fifth points of error appellant complains of the trial court’s conclusion of law that the power of attorney was a general power of attorney, such being error (2) as a matter of law, (3) because there is no evidence to support it, (4) because there is insufficient evidence to support it, and (5) because it is against the greater weight and preponderance of the evidence. The power of attorney provides:

“That I, J. W. Murchison, of said State and County, have made, constituted and appointed, and by these presents do make, constitute and appoint R. L. VAN CLEAVE, of the County of Henderson, State of Texas, my true and lawful attorney, for me and in my name, place and stead to make, execute, acknowledge, deliver and record any and all declarations of unit or unit agreement, creating units, for the drilling, developing, producing or operating oil, gas and mineral leases, and minerals, situated in Henderson and/or Anderson County, in the State of Texas, leases or agreements covering or pertaining to farmout agreements, any and all reports to, or forms of the Railroad Commission of Texas, to make, execute and deliver assignments of oil, gas and mineral leases, and conveyances of mineral or royalty interest which I might own or have any interest in, affecting or pertaining to any such property which I now own, or may hereafter acquire in Henderson or Anderson Counties, in the State of Texas, any and all such instruments to contain such agreement, terms and provisions as my said attorney shall deem proper, hereby giving and granting unto my said attorney full authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully, to all intents and purposes, as I might or could do if personally present.
“IN WITNESS hereof, I have here unto [sic] set my hand this 23rd day of January, A.D. 1961.

Appellant contends that the listing of specific acts which the attorney in fact is empowered by the instrument to perform, renders the power of attorney a special one. The distinction between a general and special agency, however, does not turn on any single factor. “In determining whether an agent is a general agent or a special agent, the number of acts to be performed in accomplishing an authorized result, the number of people to be dealt with, and the length of time needed to accomplish the result are the important considerations. Continuity of service rather than the extent of discretion or responsibility is the hall-mark of the general agent.” Restatement of the Law, Agency 2d sec. 3 at p. 15 (1958). The nature and extent of the authority granted must be ascertained from the instrument granting the power of attorney and such instrument is to be strictly construed to limit the authority of the attorney in fact. Gittings, Neiman-Marcus, Inc. v. Estes, 440 S.W.2d 90, 93 (Tex.Civ.App.—Eastland 1969, no writ). The rule that the powers of the attorney in fact are measured strictly by the terms of the grant and necessary implications therefrom, however, does not preclude the court from ascertaining the object of the language. Lawrie v. Miller, 45 S.W.2d 172, 173 (Tex. Comm’n App.1932, holding approved). Powers of attorney must be construed as a whole to ascertain the parties’ intentions and rights. Mook v. Humble Oil & Refining Co., 182 S.W.2d 255, 259 (Tex.Civ.App.—Fort Worth 1944, writ ref’d w. o. m.). A general agent is one empowered to transact all the business of his principal of a particular kind or in a particular place. Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050, 1052 (Tex.Civ.App.—Waco 1931, writ refused). Thus, a general agent is not necessarily one with unlimited powers but rather one with broad powers within a defined area. Applying these rules to the instant case, we agree with the trial court that the agency created by the instrument in question is a general one. By virtue of the instrument, Van Cleave was given very broad powers with respect to mineral interests owned or to be acquired by Murchison in the two named counties.

Appellant argues further that a delegated authority to convey does not include the power to convey in the settlement of debts, unless specifically so authorized, citing Gouldy v. Metcalf, 75 Tex. 455, 12 S.W. 830, 831 (1889), and Frost v. Erath Cattle Co., 81 Tex. 505, 17 S.W. 52, 54 (1891). Manifestly, however, such rule applies only to special powers of attorney.

If we be in error in our determination that the agency created by the instrument in question was a general agency, we nevertheless hold that Van Cleave, even as a special agent, was granted the specific authority to convey the overriding royalty interest to appellee. The power of attorney contained language empowering Van Cleave to execute “conveyances of mineral or royalty interest.” An overriding royalty interest is a royalty interest. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957); Delta Drilling Co. v. Simmons, 161 Tex. 122, 338 S.W.2d 143, 147 (1960); Williams & Meyers, Oil and Gas Law, Manual of Terms at p. 511 (1978). Furthermore, we are of the opinion that, even if Van Cleave is not properly considered a general agent under the terms of the power of attorney, Murchison, through said instrument, so clothed Van Cleave with indicia of authority as to lead a reasonably prudent person to believe that he actually had the authority to make the conveyance here disputed. This apparent authority is based upon principles of estoppel. See Roberts v. California-Western States Life Insurance Co., 470 S.W.2d 719, 724 (Tex.Civ.App.—Amarillo 1971, no writ); Hearn v. Hanlon-Bucbanan, Inc., 179 S.W.2d 364, 368 (Tex.Civ.App.—Fort Worth 1944, writ ref’d w. o. m.).

Accordingly, appellant’s second point of error is overruled.

The trial court concluded that the power of attorney was unambiguous and that conclusion has not been challenged here. Where the terms of an instrument are unambiguous, the question before the court is purely a law question; the inquiry becomes a mixed question of law and fact only where the words contained in the instrument are ambiguous. Lawrie v. Miller, supra; Kent v. Ryan, 20 S.W.2d 1099, 1103 (Tex.Civ.App.—Waco 1929), reversed on other grounds, 36 S.W.2d 1007 (Tex.Comm’n App.1931, judgment adopted); Pippin Bros, v. Thompson, 292 S.W. 618, 619 (Tex.Civ.App.—Waco 1927, writ dism’d). In the instant case, the question with regard to the power of attorney being general or special in nature is a question of law. Appellant’s attack on the trial court’s conclusion that the power of attorney is general, therefore, is not properly predicated upon issues of the legal or factual sufficiency of the evidence to support such conclusion. The trial court necessarily draws its conclusions of law from the facts as it finds them. The trial court’s' findings of fact are reviewable for legal and factual sufficiency of the evidence to support them; its conclusions of law are reviewable when attacked as erroneous as a matter of law, but not when attacked on grounds of sufficiency of the evidence to support them, as if they were findings of fact. Appellant’s points of error three, four, and five are overruled.

In its sixth through ninth points, appellant urges that the trial court’s holding that Murchison ratified the assignment is erroneous (6) as a matter of law, (7) because there is no evidence in support thereof, (8) because there is insufficient evidence to support such holding, and (9) because it is against the great weight and preponderance of the evidence. The trial court stated, both as a finding of fact and as a conclusion of law that the acts of Van Cleave, as agent, in executing and delivering the assignment were ratified by Murchison by implication in the latter’s subsequent correspondence with appellee, apparently relying upon two letters from Murchison to appellee, dated September 9 and October 11, 1971, in which Murchison referred to “your [appellee’s] overriding royalty interest on [sic] the Cely-Henderson Unit in the Fairway Pool” and to “your [appellee’s] interest in the Cely Henderson Unit,” and upon the aforementioned stipulation which states that this cause “involves a dispute between the parties thereto as to the ownership interest of the said W. R. KINABREW in and to certain oil and gas interest in Anderson County . . . .” In the October 11 letter it is apparent that Murchison disputed the size of the interest conveyed to appellee, stating that it was “⅛ of my interest” rather than ⅛ of the entire production, but Murchison did not dispute that appellee owned an interest.

Inasmuch as we have determined that the assignment by Van Cleave to ap-pellee was valid, it is not necessary that we address appellant’s points of error complaining of the trial court’s conclusion that Murchison had ratified the act of Van Cleave in making the assignment. Ratification applies only with regard to unauthorized acts done in behalf of the person alleged to have ratified them. Where the acts of an agent are within the powers conferred on him by his principal, ratification of such acts is not essential. Graham v. Edwards, 99 S.W. 436 (Tex.Civ.App.—Fort Worth 1907, no writ); See also Humphrey v. Southport Petroleum Co., 131 S.W.2d 395, 396 (Tex.Civ.App.—Texarkana 1939, no writ); Kunkel v. Kunkel, 515 S.W.2d 941, 948 (Tex.Civ.App.—Amarillo 1974, writ ref’d n. r. e.).

In its tenth point of error, appellant contends that the trial court erred in finding as a fact that the phrase “herein described premises,” as used in the assignment instrument, refers to the seven leases listed in the assignment, yet concluding as a matter of law that the phrase refers to a tract of land. The assignment instrument contains no description of a tract or tracts of land; rather, it lists seven oil, gas, and mineral leases. The entire text of the assignment is as follows:

“ASSIGNMENT OF OVERRIDING ROYALTY
“WHEREAS, on the 14th day of March 1961, a certain oil, gas and mineral lease was made and entered into by and between W.D.C. LUCY et al lessor, and J. W. MURCHISON lessee, said lease being recorded in Vol. 623 page 97 of the deed records of Anderson County Texas; and
“WHEREAS on the 14th day of March 1961, a certain Oil, gas and mineral lease was made and entered into by and between Mrs LETITIE [sic] SCHOOLFIELD et al, lessor and J. W. MURCHISON lessee, said lease being recorded in Vol. 623 page 101 of the deed records of ANDERSON COUNTY TEXAS; and
“WHEREAS, on the 14th day of March 1961, a certain Oil, gas, and mineral lease was made and entered into by and between FIRST CITY NATIONAL BANK OF HOUSTON et al lessor and J. W. MURCHISON lessee, said lease being recorded in Vol. 623 page 105 of the deed records of ANDERSON COUNTY TEXAS; and
“WHEREAS, on the 14th day of March 1961, a certain Oil, Gas and mineral lease was made and entered into by and between ISAAC ADAMS JACKSON lessor, and J. W. MURCHISON lessee, said lease being recorded in Vol. 623 page of 103 of the deed records of ANDERSON COUNTY TEXAS; and
“WHEREAS, on the 1st day of April 1960, a certain Oil, Gas and mineral lease was made and entered into between BONNIE RUTH CELY SHOULTS and husband D. P. CELY et al, lesser [sic] and J. W. MURCHISON lessee, said lease being recorded in Vol. 610 page 10 of the deed records of Anderson County Texas; and
“WHEREAS, on the 1st day of April 1960, a certain Oil, gas and mineral lease was made and entered into between W. D. CLEVELAND REALTY Co, a texas [sic] corporation lessor, and JOHN MURCHISON lessee, said lease being recorded in Vol. 610 page 8 of the deed records of ANDERSON COUNTY TEXAS; and
“WHEREAS, on the 29th day of April 1961, an Oil and gas and mineral lease was made and entered into by and between RAY PERRY lessor and J. W. MURCHISON lessee, said lease being recorded in Vol. 625 page 294 of the deed records of ANDERSON COUNTY TEXAS; and
“WHEREAS, said leases and all rights thereunder or incidental thereto are now owned by J. W. MURCHISON;
“NOW, THEREFORE, for and in consideration of the sum of TEN and no/100 Dollars ($10.00), and other good and valuable considerations, the receipt and adequacy of which are hereby acknowledged, the undersigned has bargained, sold and conveyed, and does by these presents Bargain, Sell and Convey unto W. R. KINABREW of Athens Texas, an overriding royalty equal to ONE EIGHTH of EIGHT EIGHTS [sic] (Vs of ⅜) of all of the Oil, Gas, and other minerals which may be produced, marketed, and saved from the herein described premises, free and clear of all costs of development and operation
“It is understood between the Assignor and the Assignee herein, that this conveyance shall not be effective until the said J. W. MURCHISON has recovered from the sale of Oil, gas or other minerals produced from said land, an amount equal to the costs of drilling, completing and operating any well or wells drilled on said land.
“The said J. W. MURCHISON agrees to furnish to W. R. KINABREW an annual statement showing total amounts spent and total amounts rec,d [sic] and to Notify the purchaser of the Oil gas or other minerals, when said money has been recovered, equaling all costs as set out above.
“This assignment is made without warranty of title, either express or implied.
“IN WITNESS WHEREOF, this instrument is executed this 15th day of MAY, 1961.
J. W. MURCHISON
By /s/ R. L. Van Cleave
Agent and Attorney in fact”

It is appellant’s contention that the phrase “herein described premises” refers to the seven leases, that one must go beyond the assignment (i. e., to the leases themselves) to find a tract of land described, and that therefore the interest conveyed by the assignment is Vs of ⅝ of Murchison’s interest in the leases, and not Vs of the entire production from the 120.3-acre tract. Ap-pellee contends that the language of the assignment was effective to convey an overriding royalty of Vs of the entire production from the tract upon which the leases were made.

The trial court concluded and both parties assert here that the assignment is unambiguous. We must therefore carry out the intentions of the parties as of the time the instrument was executed, even though its meaning may be in certain particulars unclear. Pierson v. Palestine Contractors, Inc., 559 S.W.2d 908, 911 (Tex.Civ. App.—Tyler 1977, writ ref’d n. r. e.). Where the terms of an instrument are unambiguous, any construction placed thereon by the parties different from that disclosed by the instrument itself is immaterial and cannot affect the determination of the court when construing it. Caraway v. Owens, 254 S.W.2d 425, 427 (Tex.Civ.App.—Texarkana 1953, writ refused); Black v. Shell Oil Co., 397 S.W.2d 877, 887 (Tex.Civ.App.—Texarkana 1965, writ ref’d n. r. e.). In ascertaining the intention of the parties to an instrument such as that with which we are concerned, the question is not determined by the intention which the parties may have had but failed to express, but the intention which, by the instrument, they did express. First National Bank of Snyder v. Evans, 169 S.W.2d 754, 756 (Tex.Civ.App.—Eastland 1943, writ refused); Davis v. Andrews, 361 S.W.2d 419, 423 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.). See also Smith v. Liddell,. 367 S.W.2d 662, 665-6 (Tex.1963); Bass v. Harper, 441 S.W.2d 825, 827 (Tex.1969).

Applying these rules to the instant case, we are of the opinion that the assignment was effective to convey an overriding royalty interest of Vs of the entire production of oil, gas, and other minerals from the entire 120.3-acre tract of land. The term “herein described premises” clearly refers to the tract of land, as described-in the leases for each of which volume and page number references in the deed records of Anderson County were made in the instrument. The description of land in a conveyance of an interest therein must be so definite and certain upon the face of the instrument itself, or by other writing referred to, that the land can be identified with reasonable certainty. Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703, 705 (1935). See also Haile v. Holtzclaw, 414 S.W.2d 916, 927-8 (Tex.1967); Rice v. Cook, 367 S.W.2d 386, 389 (Tex.Civ.App.—Austin 1963, writ ref’d n. r. e.). There is no contention here that the leases referred to in the assignment do not adequately describe the land. There was no dispute that all seven leases pertain to the 120.3-acre tract. The trial court found, “The Leases cover an undivided leasehold interest in the 120.30 acres comprising an oil unit identified as the Cely-Henderson Unit . . . .” That finding has not been challenged here. Moreover, we feel that the word “premises” refers to a distinct portion of real property. Ruble v. Ruble, 264 S.W. 1018, 1019 (Tex.Civ.App.—Waco 1924, no writ), See also Black’s Law Dictionary (4th ed. 1968) at p. 1344. There is no other language in the assignment which limits or which might be construed to limit the Vs overriding royalty interest to apply to less than the entire tract and its entire production. To the contrary, the instrument states, “an overriding royalty equal to ONE EIGHTH OF EIGHT EIGHTS [sic] (⅛ of ⅜) of all the Oil, Gas, and other minerals which may be produced, marketed, and saved from the herein described premises . . . .” [Emphasis added.] The words “said land ” [emphasis added] are used twice in the succeeding paragraph. Where a fraction designated in a conveyance is stated to be a royalty interest in land described in the deed, the fraction is to be calculated upon the production of the entire tract. See Middleton v. Broussard, 504 S.W.2d 839, 842 (Tex.1974). Even if we were to find that the words at issue were ambiguous, we would reach the same conclusion because an instrument conveying an interest in minerals, if ambiguous, is construed against the grantor. Hoffman v. Magnolia Petroleum Co., 273 S.W. 828, 829 (Tex.Comm’n App.1925, holding approved); Davis v. Andrews, supra; Loeffler v. King, 228 S.W.2d 201, 204 (Tex.Civ.App.—Fort Worth 1950), reversed on other grounds, 149 Tex. 626, 236 S.W.2d 772 (1951). We do not consider as conflicting the trial court’s finding of fact that “herein described premises” refers to the seven leases and its conclusion of law that the phrase refers to the tract of land. The reference to the leases is not a reference to a partial interest in them but rather to the “premises,” i. e., land, described therein. Appellant’s tenth point of error is overruled.

In its eleventh and twelfth points of error, appellant asserts error by the trial court in that there is no evidence and insufficient evidence, respectively, to support the holding by that court that ap-pellee is entitled to a greater revenue interest (0.125 or ⅛) than Murchison owned on the date of the assignment. Appellee points out, however, and we agree, that the assignment is not limited by its terms to the interest that Murchison owned on the date the assignment was executed or subsequent thereto. See Bass v. Harper, supra. Manifestly, one may purport to convey a greater interest than one owns in the property which is the subject of the conveyance. Here, however, as discussed infra, we do not believe Murchison owned a lesser interest than he conveyed, through his agent, by the assignment. Furthermore, we have determined as a matter of law that the assignment was effective, according to its unambiguous terms, to convey to appellee an overriding royalty interest of one-eighth of the entire production from the tract. The construction to be given an unambiguous instrument is a question of law and not of fact. Young v. De La Garza, 368 S.W.2d 667, 670 (Tex.Civ.App.—Dallas 1963, no writ). Points of error which question the legal or factual sufficiency of the evidence to support the trial court’s action, therefore, raise no issue for our consideration on appeal. The eleventh and twelfth points of error are overruled.

Appellant’s thirteenth point contends that, as a matter of law, Gertrude B. Murchison’s interests in the seven leases could not be looked to in determining whether payout had been reached. This is an attack on the trial court’s conclusion of law that, since the assignment was made in discharge of a community debt of J. W. and Gertrude Murchison, the total net revenue interest of J. W. Murchison and the estate of Gertrude Murchison is to be considered in computing the recoupment of development and operating expenses by the assign- or. In its argument in its brief under said point, which was combined with several other points for discussion, appellant fails to address the issue presented by this point and cites no authorities therefor. Irrespective of that, however, we find no merit in appellant’s contention. As noted supra, the husband, at the time of the assignment in this case, had sole power to manage the community property. The husband also, as community survivor, was competent to discharge community debts. In the absence of fraud, a conveyance of community property by the surviving husband would be sustained where a community debt existed at the time it was made, and whether the discharge of debts was done in his own name or in his name as survivor was immaterial. Griffin v. Stanolind Oil & Gas Co., 133 Tex. 45, 125 S.W.2d 545, 548 (Tex.Comm’n App.1939, opinion adopted); See also Davis v. Magnolia Petroleum Co., 134 Tex. 201, 134 S.W.2d 1042, 1044 (Tex.Comm’n App.1940, opinion adopted); Walston v. Gibson, 141 S.W.2d 997, 999 (Tex.Civ.App.—Galveston 1940, writ refused). In view of these rules, we find no error in the trial court’s conclusion and overrule appellant’s thirteenth point.

By its fourteenth point, appellant contends there is no evidence to support the trial court’s holding that Murchison and his wife’s estate owned, at all times from the date of the assignment to the date of hearing, a net revenue interest in the tract of not less than 0.2768876. Appellant contends that Murchison owned at most a net revenue interest of 0.12288705 in the production from the Cely-Henderson unit at that time. The trial court found as facts that the total net revenue interest of Murchison and wife for purposes of computing the payout date is 0.2768876 as recognized and ratified by Murchison in October 1971, and that at all times from the date of the assignment to the date of the hearing below, Murchison and his wife’s estate owned a net revenue interest of not less than the same figure. Appellee argues that the interest of Murchison in the tract of land is not an issue in this suit for a declaration of the extent of the assignment made by Murchison, through Van Cleave, to appellee. We do not agree. The trial court determined that appellee was assigned one-eighth of the entire production from the tract, regardless of what Murchison’s interest in the tract was, on the date of the assignment or subsequently. Appellee prayed, however, for an accounting as well as for a declaration of the rights of the parties under the assignment, and the accounting of the amount due appellee will require a determination of Murchison’s interest.

Appellant relies upon appellee’s admissions that the undivided community interest of Murchison in the first, second, and third leases listed in the assignment was 0.079833325, and that neither Murchison nor his wife had acquired any interest as of the date of the assignment in the fourth and sixth leases. Appellant further contends that, with respect to the fifth lease, Murchison had assigned it, on September 8, 1960, to the Fairway Operating Co., Inc.; thus, neither Murchison nor his wife owned any interest in it on the date of the assignment. Concerning the seventh lease, appellant asserts that, although the trial court made no finding as to Murchison’s interest therein, said interest was either 0.0430538 (if he owned it as his separate property) or 0.0215269 (if it were community property). Appellee points out that Murchison retained a reversionary interest in the fifth lease, i. e., if Fairway failed to drill a well within a specified period, it would revert to Murchison, and that it did, in fact, so revert, apparently giving him a 0.169 interest therein. It is appellant’s contention that the total net revenue interest of Murchison, individually, in the Cely-Henderson Unit was 0.2288705 at most.

All of the arguments over Murchison’s specific interests in the individual leases aside, it is apparent that the trial court relied upon the attachment to Murchison’s letter of October 11,1971, to appellee. That attachment is an accounting of the well cost and payout status for the Cely-Henderson tract as of July 31, 1971, and it clearly indicates that the interest of J. W. Murchison was 0.2768876. In considering a “no evidence” point, an appellate court will not disturb the fact findings' of the trial court if there is some evidence of probative force to support the same, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him. American Bankers Insurance Co. v. Farley, 403 S.W.2d 545, 547 (Tex.Civ.App.—Fort Worth 1966, no writ); see also In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). We conclude that there is some evidence of probative force to support the trial court’s finding complained of in appellant’s fourteenth point of error, which, accordingly, we overrule.

The final point of error of appellant states that the court below erred in failing to find that appellant’s interest in lease number seven was a net revenue interest of 0.0215269. Appellant’s request that the court make such a finding was refused. In view of our disposition of the previous points of error, we deem this point to be immaterial.

The judgment of the trial court is affirmed.