author: GREEN, Commissioner. ODOM, Judge.

text:
    Epifanio ALVAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 51177.
    Court of Criminal Appeals of Texas.
    March 24, 1976.
    On Rehearing May 19, 1976.

      Michael Putman, San Antonio, for appellant; William Brown, San Antonio, of counsel.
    Ted Butler, Dist. Atty., Charles T. Cona-way, Lucien B. Campbell, and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of possession of heroin. See Art. 725b, V.A.P.C. Punishment, enhanced under Art. 63, V.A.P.C., was assessed by the court at life.

In his first ground of error, appellant contends that the trial court assessed punishment at life in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution and in violation of the doctrine of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

This was the second trial of appellant for this offense. The indictment on which he was first tried charged him with this same unlawful possession of heroin, and also charged that he had been twice convicted of felony offenses less than capital for enhancement purposes. The record reflects that when the case was called for trial on October 10, 1973, the State “waived and abandoned 2nd and 3rd paragraphs of indictment (Habitual enhancement of punishment) and agreed to proceed to trial on 1st paragraph.” On a plea of guilty before the court, appellant, after evidence, was convicted and punishment was assessed at ten years. On appeal, the judgment was reversed and the cause was remanded for failure of the trial court to properly admonish appellant. See Alvarez v. State, 511 S.W.2d 521.

After remand a new indictment was presented again charging appellant with possession of heroin, and containing the same provisions of prior felony convictions for enhancement purposes. When the case was called for trial on December 11, 1974, appellant changed his former plea to one of not guilty, and chose to be tried by jury. Thereupon, the court, on the State’s motion, dismissed the prior ease, and the trial proceeded before a jury on the instant indictment which included the enhancement allegations. Appellant filed his request that in the event of a guilty verdict punishment be assessed by the court. After conviction, the court conducted the punishment hearing, and assessed punishment at life in accordance with Article 63, V.A.P.C.

In Martinez v. State, Tex.Cr.App., 471 S.W.2d 399, we passed on the same contention now raised by appellant and, in overruling the defendant’s complaint, said:

“Appellant’s fourth ground of error is that the Court erred in not granting his motion to limit the penalty to fifteen years. He bases this contention upon the fact that this appellant was indicted as a habitual criminal and brought to trial before Judge Blackwell, where the State waived or abandoned the allegations as to the prior convictions and Judge Blackwell sentenced the appellant to fifteen years for the primary offense. Subsequently, Judge Blackwell granted appellant’s motion for new trial. The prior indictment was dismissed and the appellant was again indicted as a habitual criminal, with the same two prior convictions alleged for enhancement, and brought to trial before Judge Thurman where the prior convictions were proven and his punishment was assessed by Judge Thurman at life as required by law.
“The proof before Judge Thurman that the appellant was the same person who had been convicted in the two prior convictions alleged for enhancement distinguishes this case from North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, upon which appellant relies. See Branch v. State, Tex.Cr.App., 445 S.W.2d 756.”

Following this decision, Martinez sought habeas corpus relief in the United States District Court for the Western District of Texas. He asserted that upon retrial he received a longer sentence than had been imposed on the first trial, in violation of the holdings in North Carolina v. Pearce, supra, and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628. The district court sustained Martinez’ contention and granted the writ. On appeal, in Martinez v. Estelle, 527 F.2d 1330, the 5th Circuit reversed, and in a per curiam opinion rendered March 5, 1976, in part said:

“The district court relying on Blackledge held that the imposition of the life sentence after retrial ‘unconstitutionally de-terged the] defendant in the exercise of his right to attack his first conviction.’ We disagree. In Blackledge, the defendant who had appealed his misdemeanor conviction was subsequently indicted for a felony offense for the same transaction. This elevation in the severity of the charge in response to the appeal was condemned by the Supreme Court for its potential in discouraging defendants from the pursuit of their appellate remedies.
“By contrast, in this case there has been no such retaliatory state response to the defense appeal. Here, the indictment against the defendant after appeal was identical to the first indictment against him. Both indictments contained the statutory habitual count. There was no escalation of the government’s charge. The disparity in sentences imposed upon defendant after his first and second trials was the necessary result of his own choice of trial strategy rather than prosecutorial response to his appeal. Unlike Blackledge, we are not presented with facts suggesting a likelihood of potential prose-cutorial vindictiveness. Quite the contrary appears.”

See also Arechiga v. Texas, 469 F.2d 646 (5th Cir. 1972); Williams v. McMann, 436 F.2d 103 (2d Cir. 1970).

We hold, as we did in Martinez, supra, and in Branch, supra, that the trial court exercised no discretion but was required by statute to impose a life sentence upon appellant’s conviction as a habitual criminal. Also, as stated by the 5th Circuit in Martinez v. Estelle, supra, the disparity in the sentences was the result of appellant’s choice of trial strategy on the instant trial rather than prosecutorial vindictiveness.

The ground of error is overruled.

In his second ground, appellant complains of the introduction in evidence at the punishment stage, over objection, of State’s Exhibit No. 9 (hereafter called SX9). He argues that said exhibit did not conform to Art. 3731a, V.A.T.Civ.Stats. as to notice and other requirements, that it was not relevant to any issue, failed to identify sufficiently the appellant, and was hearsay.

The indictment alleged for enhancement purposes a prior conviction of appellant in Cause No. 65,179 in the 175th District Court of Bexar County in 1965 for assault with intent to murder and a conviction in Cause No. 58,382 in the Criminal District Court of Bexar County for forgery in 1960.

SX9 consists of certified copies of the indictment, sheriff’s returns on subpoenaes, affidavits of witnesses, police reports, waiver of jury, and a written voluntary statement of appellant, all taken from the record in Cause No. 65,179, supra. Each of the first eighteen documents in this exhibit bears the certification of the district clerk that it is a true and correct copy of the original record in his lawful custody and possession as appears in the records of his office filed November 2, 1965, and the date of the certificates is December 9,1974, nine days prior to the instant trial. The remaining 28 pages of SX9, being also from the records of the trial of Cause No. 65,179, were stapled together as one unit, and the same certificate of the clerk as just mentioned is on the back of the last page. The certification sufficiently conformed to the requirements of Art. 3731a, V.A.Tex.Civ. Stats. Speights v. State, Tex.Cr.App., 499 S.W.2d 119.

Although many of these instruments were not relevant, others, such as the indictment, appellant’s confession to show date of the offense as it applies to enhancement, etc., were, and appellant’s objection was addressed to the exhibit as a whole and not to individual documents. A general objection to evidence, part of which is admissible, does not preserve error. See Ellard v. State, Tex.Cr.App., 509 S.W.2d 622; Morrison v. State, Tex.Cr.App., 508 S.W.2d 827. The hearing was before the court, and it will be assumed that the court did not consider evidence improperly in the record.

In addition to SX9, the State placed in evidence SX10 and SX11. SX10 consisted of known fingerprints of appellant taken in court. SX11 consisted of the penitentiary packets of the convictions in the cases alleged in the indictment for enhancement, being Causes 65,179 and 58,382, supra. This exhibit included the judgment and sentence in each case, and fingerprints of defendant in each case. Each bore the required certificates of the Record Clerk of the Texas Department of Corrections, and of the county judge and county clerk of Walker County. A fingerprint expert compared the known prints of appellant with the prints in each packet, and identified appellant as being the defendant convicted in each ease. This sufficiently complied with the requirements of identification. Jones v. State, Tex.Cr.App., 500 S.W.2d 661.

Appellant also claims error because the State failed to deliver to him a copy of SX9 as required by Art. 3731a(3), V.A.T.Civ.Stats. His claim of surprise is without merit. Hutchinson v. State, Tex.Cr.App., 481 S.W.2d 881.

The second ground of error is overruled.

Appellant, in his third ground, contends that the evidence fails to show that the offense of assault with intent to murder for which appellant was convicted in 1965 in Cause No. 65,179, supra, was committed after the final conviction of appellant for forgery in 1960 in Cause No. 58,382, supra.

A certified copy of the indictment in Cause No. 65,179 in the 175th District Court of Bexar County presented in court on September 22, 1965 is included in SX9, supra. It alleges that the offense was committed on or about February 18,1965. Appellant’s voluntary confession, a certified copy of which is in the record, states February 18, 1965, as the date the offense occurred. Other records from that trial included in SX9 reflect the same date. The record reflects that appellant was finally convicted of forgery in Cause No. 58,382, supra, on January 29, 1960, and that he was discharged from the Texas Department of Corrections on June 15,1963. The evidence satisfies the requirements that the offense for which the defendant was convicted in the second case alleged for enhancement be committed subsequent to the final conviction in the prior case alleged. McCarter v. State, Tex.Cr.App., 527 S.W.2d 296.

Furthermore, the period within which an indictment could be returned for assault with intent to murder in 1965 was three years. Art. 180, V.A.C.C.P., 1925 Code. (Art. 12.04, revised Code of Criminal Procedure effective January 1, 1966). It is presumed that the offense was committed within three years prior to the return of the indictment on September 22, 1965, or some time after September 22, 1962. Villareal v. State, Tex.Cr.App., 468 S.W.2d 837, 839. The first conviction became final on January 29, 1960, the record reflecting that there was no appeal. We conclude, therefore, that the offense of assault to murder for which appellant was convicted in Cause No. 65,197 was committed after the conviction in the prior Cause No. 58,382, supra, became final. Villareal, supra.

The third ground of error is overruled.

In his fourth ground, appellant argues that the court erred in overruling his motion for a continuance.

The sworn motion alleged that “it will require time for the defendant to properly check the records in this cause to determine whether or not the indictment is proper in form and in substance” concerning the enhancement allegations. It ends with the prayer that a continuance of one week be granted to allow “defendant and his attorney an opportunity to study the state’s file” delivered to them on that day “and the record of defendant in order to properly prepare and defend in this cause.”

The record reflects that counsel for appellant who signed the motion with appellant was notified of his appointment on October 23, 1974, over six weeks before the trial. The motion for continuance alleged only equitable rather than statutory grounds, and the action of the court thereon was within its sound discretion. Hernandez v. State, Tex.Cr.App., 492 S.W.2d 466. No abuse of discretion appears.

Additionally, appellant’s motion for new trial alleged merely that “the verdict is contrary to the law and the evidence” and made no complaint of the alleged error in overruling the motion for continuance. Error is not presented. Lapp v. State, Tex.Cr.App., 519 S.W.2d 443; Fields v. State, Tex.Cr.App., 495 S.W.2d 926.

The judgment is affirmed.

Opinion approved by the Court.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

By motion for rehearing appellant urges for reconsideration his contention that his punishment assessed at life imprisonment under Article 63, V.A.P.C., is in violation of the principles of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656.

The opinion in North Carolina v. Pearce, supra, commences:

“When at the behest of the defendant a criminal conviction has been set aside and a new trial ordered, to what extent does the Constitution limit the imposition of a harsher sentence after conviction upon retrial?” 395 U.S., at 713, 89 S.Ct., at 2074.

The court rejected two arguments urging an absolute bar to increased punishment:

“We hold, therefore, that neither the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon recon-viction.” 395 U.S., at 723, 89 S.Ct., at 2079.

The Due Process Clause of the Fourteenth Amendment, however, was held to place limitations upon the imposition of a more severe sentence upon retrial:

“Due process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial. And since the fear of such vindictiveness may unconstitutionally deter a defendant’s exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
“In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.” 395 U.S., at 725-726, 89 S.Ct., at 2080.

The narrow holding of North Carolina v. Pearce, then, is that the procedure stated in the last above-quoted paragraph must be followed whenever a judge imposes a more severe sentence upon a defendant after a new trial. As such, the mandated procedure addresses only those cases where the judge imposes a greater punishment. The principles that are the foundation of the holding in North Carolina v. Pearce, and that state the interests that the mandated procedure was fashioned to protect, however, are those stated in the second-to-last above-quoted paragraph, to-wit, (1) “that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,” and, more narrowly, (2) “that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.”

The facts of the instant case were set out in our opinion on original submission as follows:

“This was the second trial of appellant for this offense. The indictment on which he was first tried charged him with this same unlawful possession of heroin, and also charged that he had been twice convicted of felony offenses less than capital for enhancement purposes. The record reflects that when the case was called for trial on October 10, 1973, the State ‘waived and abandoned 2nd and 3rd paragraphs of indictment (Habitual enhancement of punishment) and agreed to proceed to trial on 1st paragraph.’ On a plea of guilty before the court, appellant, after evidence, was convicted and punishment was assessed at ten years. On appeal, the judgment was reversed and the cause was remanded for failure of the trial court to properly admonish appellant. See Alvarez v. State, 511 S.W.2d 521.
“After remand, a new indictment was presented again charging appellant with possession of heroin, and containing the same provisions of prior felony convictions for enhancement purposes. When the case was called for trial on December 11, 1974, appellant changed his former plea to one of not guilty, and chose to be tried by jury. Thereupon, the court, on the State’s motion, dismissed the prior case, and the trial proceeded before a jury on the instant indictment which included the enhancement allegations. Appellant filed his request that in the event of a guilty verdict punishment be assessed by the court. After conviction, the court conducted the punishment hearing, and assessed punishment at life in accordance with Article 63, V.A.P.C.”

Under the indictment upon which appellant was tried, upon proof of the enhancement allegations under Article 63, V.A.P.C., the punishment was fixed by law at life imprisonment. Blackwell v. State, Tex.Cr.App., 510 S.W.2d 952, 955; Haro v. State, 132 Tex.Cr.R. 507, 105 S.W.2d 1093, 1095. The judge in this case had the authority to find the facts alleged for enhancement to be true or not, but having found the facts true, the court was without power to enter in the judgment or pronounce in the sentence any punishment other than that fixed by law. The penalty being fixed by law, the increase may not be attributed to possible vindictiveness of the judge. Stated another way, the reason that the judge imposed a more severe sentence upon appellant’s retrial does affirmatively appear in the record: the statutes of Texas dictated the life sentence upon proof of the enhancement allegations; the judge had no discretion in the matter of punishment. We therefore find that the procedural mandate of North Carolina v. Pearce has not been violated.

Our finding that the trial judge did not violate the procedural mandate of North Carolina v. Pearce, however, does not close the matter. That procedural mandate was fashioned by the Supreme Court to guard against violation of the fundamental requirement that “vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial,” (emphasis added). If the State may not be vindictive against such a defendant through the action of the trial judge imposing a more severe sentence, we do not see how the State could be permitted to secure a greater punishment for vindictive purposes by simply using enhancement allegations in the pleading. Vindictiveness is the evil object of North Carolina v. Pearce, and it is equally impermissible whether flowing from a judge or from a prosecutor. If shown, prosecutorial vindictiveness would be as fatal to increased punishment on retrial as would be judicial vindictiveness.

Although North Carolina v. Pearce placed a duty upon the trial judge to make the record affirmatively demonstrate grounds other than vindictiveness when a judge imposes a more severe sentence upon a defendant after a new trial, it mandated no such duty regarding possible prosecutorial vindictiveness. We decline to place such a duty upon the trial judge where the record demonstrates facts such as appear in this case. Although the record does not show whether the first conviction rested upon a negotiated plea, it does show that appellant entered a plea of guilty and the State abandoned the enhancement allegations of the first indictment. On the second trial appellant elected to plead not guilty and be tried by a jury, and the State prosecuted its case on a new indictment containing the enhancement allegations that had been abandoned at the first trial. We perceive no reason why an accused who changes his plea from guilty to not guilty on retrial should be able at the same time to hold the State to the punishment sought or secured at the first trial.

Absent a showing of circumstances that would indicate prosecutorial vindictiveness, such as an improper refusal to continue to honor a plea bargain previously made, we are of the opinion that no violation of the principles of North Carolina v. Pearce has been shown. The increased punishment in this case, considered together with the ap-pedant’s change of his plea, we hold does not constitute a showing of such circumstances. We remain convinced that the disparity between the ten year sentence on appellant’s first trial and the life sentence on appellant’s second trial has not been shown to be anything other than a consequence of trial strategy, as opposed to pros-ecutorial vindictiveness.

The motion for rehearing is denied.

ONION, P. J., concurs in the results.

      . See Cruz v. State, Tex.Cr.App., 530 S.W.2d 817, and Gibson v. State, Tex.Cr.App., 532 S.W.2d 69, for the suggested practice of placing the results of plea negotiations in the record.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Armon ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 51300.
    Court of Criminal Appeals of Texas.
    April 28, 1976.
    Rehearing Denied May 27, 1976.

      Wilder & Tate, Henderson, for appellant.
    Donald R. Ross, County Atty., and David P. Brown, Asst. County Atty., Henderson, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for voluntary manslaughter, wherein the jury assessed the punishment at twenty (20) years.

The record reflects that the appellant was charged with shooting and killing his wife.

At the outset appellant contends the court erred in excusing a juror, Roy Weaver, after the jury had been sworn and em-panelled. Prior to any testimony being heard, Weaver testified he had a tightness in his chest the day before and had not been able to sleep that night. He related he had gone to a doctor’s office and was found to have a temperature by a nurse and had been given a shot. Without objection, a note from James H. Mann, M.D., was offered into evidence. It read: “This man was at my office this morning with fever, aching all over, with influenza. Do you still want him to serve jury duty today?” Weaver admitted he had not personally seen the doctor, but the nurse had given him the note after he had been asked to wait in the doctor’s waiting room. He stated he would not say he was disabled, but he didn’t want to contaminate the jury as he had already been asked to stay on the other side of the jury room. He acknowledged, however, that serving would involve hardship and be detrimental to his physical well-being and asked to be excused.

The court excused Weaver based on his condition and the physical well-being of the other jurors. The appellant objected to the court’s action.

Article 36.29, Vernon’s Ann.C.C.P., provides:

“Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman; provided, however, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. After the charge of the court is read to the jury, if any one of them becomes so sick as to prevent the continuance of his duty, or any accident of circumstance occurs to prevent their being kept together under circumstances under which the law or the instructions of the court requires that they be kept together, the jury may be discharged.”

In Griffin v. State, 486 S.W.2d 948 (Tex.Cr.App.1972), we held that “disabled” as used in the foregoing Article means “any condition that inhibits the juror from fully and fairly performing the functions of a juror.” In Griffin the juror during a noon recess was arrested and jailed for driving a motor vehicle while intoxicated. It was there held that the court did not abuse its discretion in excusing the juror and proceeding with the trial with 11 jurors.

In Clark v. State, 500 S.W.2d 107 (Tex.Cr.App.1973), this court held that there was no abuse of discretion where the trial court ordered the trial to continue with 11 jurors after one of the jurors became emotionally disabled because of his father-in-law’s death. In Maciel v. State, 517 S.W.2d 789 (Tex.Cr.App.1975), the trial court ordered the trial to continue with 11 jurors after one juror suffered some sort of an attack and was taken to the emergency room of a hospital, where it was determined he had extremely high blood pressure. See also Johnson v. State, 525 S.W.2d 170 (Tex.Cr.App.1975).

Under the circumstances presented, we conclude the trial court did not abuse its discretion in the instant case. The ground of error is overruled.

Next, appellant complains that during voir dire examination of the jury panel the prosecutor was permitted to inform the panel that the State could not call the appellant as a witness and “in general allowing the District Attorney to comment on the failure of the Defendant to testify.”

Appellant calls our attention to a portion of the examination where the prosecutor stated the appellant could subpoena and call witnesses in his behalf and could testify himself. A general objection was interposed and overruled. The prosecutor then stated that if the appellant did not testify the jury could not consider his failure to testify, but if he did testify the jury could pass on his credibility as any other witness.

In McCary v. State, 477 S.W.2d 624 (Tex.Cr.App.1972), and Hill v. State, 480 S.W.2d 670 (Tex.Cr.App.1972), we held that similar statements were not manifestly intended or were not of such character that the jury would naturally and necessarily take it to be a comment on the subsequent failure of the defendant to testify so as to offend the statute (Article 38.08, Vernon’s Ann.C.C.P.) which prohibits comment on a defendant’s failure to testify. It is well settled that for the statement to offend against the statute the language utilized must be considered from the jury standpoint. Further, the implication from the language used (having reference to the failure to testify) must be a necessary one.

Unlike Hill and McCary the appellant in the instant case testified in his own behalf rendering harmless any statements made by the prosecutor. We find no support in the record for appellant’s assertion in his brief that such statements caused him to take the stand.

Further, the prosecutor’s statement that if the appellant testified his credibility was to be judged as any other witness was a correct statement of the law and in accordance with the court’s charge later given. See Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974).

Appellant also complains that the court erred in permitting Sheriff Daniels to testify after he had been improperly excused after the rule had been invoked. The court sua sponte excused the Sheriff when the rule was invoked. Upon objection, the court stated the Sheriff was needed in attendance upon the court. When the Sheriff was called to testify at a separate hearing outside the hearing of the jury on the vol-untariness of the confession, the appellant established that the Sheriff had not requested to be excused from the rule and had a bailiff in the courtroom, but when the court reiterated he desired the Sheriff in the courtroom, no further effort was made to establish what duties had been assigned the Sheriff or what conditions demanded his presence. There appears to be no showing of prejudice or abuse of discretion. See Perry v. State, 160 Tex.Cr.R. 8, 266 S.W.2d 171 (1954).

The rule is provided for in Article 36.03, Vernon’s Ann.C.C.P. The object to be attained by placing witnesses under the rule is to prevent one witness from being influenced by the testimony of another. Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975); Carlile v. State, 451 S.W.2d 511 (Tex.Cr.App.1970). The enforcement of the rule is within the discretion of the court. Article 36.04, Vernon’s Ann.C.C.P. And it is in the discretion of the court to permit anyone to testify who has not been placed under the rule. See Article 36.04, supra, n. 7, and cases there cited.

Further, it is noted that the Sheriff solely testified before the jury to the fact that he had taken the appellant to the county attorney’s office where appellant was warned of his rights and had given and signed a written confession. No other witness for the State testified to such matters. For this reason also there would appear to be no error. Landry v. State, 96 Tex.Cr.R. 350, 257 S.W. 561 (1924). See also Clary v. State, 68 Tex.Cr.R. 290, 150 S.W. 919 (1912). Cf. Moore v. State, 493 S.W.2d 844 (Tex.Cr.App.1973).

While for the above reasons no error is reflected, trial judges, in all fairness, should not sua sponte excuse peace officers from the rule without there being good cause therefor. See Brown v. State, supra. Peace officers are not entitled to be excused from the rule merely by reason of their position as peace officers. See Martinez v. State, 96 Tex.Cr.R. 138, 256 S.W. 289 (1923).

In two grounds of error appellant complains the court erred in permitting Chief Deputy Mike Strong to testify concerning evidence found in appellant’s house while he was in jail and which search was conducted without warrant and without consent, and further complains of the introduction of .22 cal. shells, pictures taken by Strong and a diagram of the house made by Strong. In another ground of error appellant complains of the admission of certain conversations that Deputy Danny Cook testified he had with appellant after the appellant was under arrest. A short resumé of the evidence is necessary to appraise these contentions.

At 11:38 p. m. on August 12, 1974, the Rusk County sheriff’s dispatcher received a phone call from a person who identified himself as Armón Allen and stated, “My wife killed herself,” and “Send somebody out here.” He gave directions to the dispatcher, who sent Deputy Sheriff Cook to appellant’s residence. Cook arrived along with the funeral home ambulance. Cook observed the appellant on the front porch. As he walked up appellant stated, “My wife has done it this time,” and “She has shot herself.” Cook saw a woman on the couch inside the house. Inside he found the deceased, Dorris Allen, slumped on the couch, a wound about her right eye and a finger shot off. He observed a .22 cal. rifle nearby. He found one shell hull eight feet from the deceased and another eighteen feet from the deceased. In the bedroom he found a box of .22 cal. shells. The rifle and shell hulls and shells were introduced without objection. When a diagram of the two rooms made by Cook was offered, the only objection was that it was inaccurate as it did not include the whole house.

Cook testified, over objection, that appellant told him the deceased had shot herself while he was eating in the kitchen. When Cook did not see any dishes on the table, he asked if appellant had cleaned them up. Appellant then changed his story and stated he was seated on a chair drinking coffee when she shot herself and stated, “Well, Armón, I have done it this time.” He further stated to Cook that he had “blackout spells and could have possibly blacked out and shot her,” but that he “didn’t know.” After Justice of the Peace Barrett arrived, the appellant was arrested and taken to jail by Cook, who returned to the scene.

Randal Bryan, a funeral home owner, testified he received a phone call from the appellant sometime after 11 p. m., who stated, “Dorris has just shot herself.” He asked for an ambulance. When Bryan arrived, he saw the appellant outside the house and was of the opinion the appellant had been drinking.

Deputy Strong testified that when he arrived at the scene on the night in question Deputy Cook, Bryan and Judge Barrett were there. The appellant had already been taken to jail. Over objection that he did not have a search warrant nor appellant’s consent to search, Strong testified as to the condition of the deceased, his further investigation in taking pictures and making a diagram of the house and taking into custody .22 cal. shells. The diagram and photographs were admitted into evidence.

Appellant’s extrajudicial confession taken several days later was admitted into evidence. In it he stated he had loaded his .22 cal. rifle after an argument with his wife. After his wife stated she wanted out of this “mess,” the confession relates he shot the deceased in the hand while she was on the couch. He reloaded and then said, “I think I will just kill you.” The confession then states he shot her in the head.

Testifying in his own behalf, appellant related that on the night in question his brother, Denton Allen, had come by his house and brought some whiskey; that after he, his wife and brother had driven to several other places and purchased more whiskey, they returned to his home; that he went to the outhouse and when he returned to the house his brother was trying to take his wife’s pants off and she was resisting. He related he got a rifle and shot over the two. Thinking his brother had left, he entered the living room when his brother jumped him and in the struggle that ensued the rifle went off and his wife was hit and fell back on the couch. He testified that he and his brother decided the brother should leave as his wife disapproved of drinking and he had previously been in the penitentiary. Appellant then called the funeral home and the sheriff’s office. In his testimony, the appellant discussed the diagram by Strong, the photographs and the deceased’s position on the couch.

With regard to the search question, we observe that there was no objection to admission into evidence of the rifle and the shell hulls and the shells, which would waive any complaint on appeal. McGrew v. State, 523 S.W.2d 679 (Tex.Cr.App.1975). Further, this court has held frequently that the legality of the search need not be considered when the accused testifies to or otherwise produces evidence of the same facts or if such facts are in the record without objection. See Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974); Walker v. State, 513 S.W.2d 39 (Tex.Cr.App.1974); Hayles v. State, 507 S.W.2d 213 (Tex.Cr.App.1974); Bradley v. State, 478 S.W.2d 527 (Tex.Cr.App.1972); Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974).

With regard to the diagram of the house and the photographs made by Chief Deputy Strong, we observe the record reflects that the appellant caused the investigation to commence by calling the sheriff’s office and the funeral home. After the Justice of the Peace arrived to act as coro-nor and was still conducting his investigation and the body of the deceased was present, Deputy Sheriff Strong arrived and made the photographs and diagram of which complaint is made. Under the circumstances, the search and admission of the diagram and photographs were proper. Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643 (1954); Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Tocher v. State, 501 S.W.2d 921 (Tex.Cr.App.1973). We find no merit in appellant’s search contentions.

Next, we consider the contention the court erred in allowing Deputy Cook to testify about the conversations he had with the appellant immediately after arriving at appellant’s house following appellant’s call to the sheriff’s office. Appellant contends at the time he was under arrest, and he had not been warned of his rights. He bases his contention on Cook’s testimony that after arriving at the scene he would not have allowed anyone to leave before he found out “information.” While appellant has not narrowed his contention to a particular statement but includes all of the conversations, we observe the statements to Cook that appellant’s wife had shot herself do not reflect reversible error since the dispatcher, Randal Bryan of the funeral home, and subsequently the appellant’s sister, a defense witness, all testified without objection that appellant had stated that night his wife shot herself. As previously stated, if there was improper admission of evidence, there is no reversible error if the same facts are shown by evidence to which there is no objection. Hayles v. State, supra. Obviously what appellant is complaining about is Cook’s testimony that appellant, after changing his story about his position when his wife shot herself, also stated he had blackout spells and could have blacked out and shot her but he “didn’t know.”

In light of appellant’s call to the sheriff’s office, it is clear Deputy Cook’s inquiries were part of a general investigation into an unsolved crime, see Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), and were within the ambit of a general on-the-scene investigatory process, see Tilley v. State, 462 S.W.2d 594 (Tex.Cr.App.1971); Higgins v. State, 473 S.W.2d 493 (Tex.Cr.App.1971), which had not yet shifted to the accusatory or custodial stage, see Adami v. State, 524 S.W.2d 693 (Tex.Cr.App.1975).

The record shows that the remarks were made by appellant prior to being arrested or taken into custody, and there is nothing to indicate he reasonably so considered himself. The actual arrest came later. While Cook did make the statement he would not have let anyone leave until he got “information,” the record, when read as a whole, does not reflect the appellant was deprived of his freedom in any significant way prior to the remarks complained of. Further, under the circumstances, the remark that he may have shot his wife, he “didn’t know,” is rendered harmless in light of his written extrajudicial confession that he shot his wife which was also introduced into evidence after it was found by the court to have been voluntarily given.

Appellant lastly complains of the trial court’s refusal to allow him to file “an amended motion for new trial.” From his brief it is difficult to determine which motion he has reference to when the whole record is considered. The verdict was returned on January 31, 1975. On February 7, 1975, a letter from the appellant was delivered to the trial judge while he was presiding at other trials. He did not open the letter until February 10, 1975. The letter stated, “I the defendent (sic) would like an appeal be set fourth (sic) so said defendent (sic) could show cause for new trial.” The letter also requested appointment of counsel. On the same date, the court showed the letter to appellant’s counsel. The court considered the letter a premature notice of appeal and a request for an attorney on appeal. The court then agreed with counsel that sentencing should take place the next day. On February 11, 1975, the trial judge observed prior to sentencing that no motion for new trial had been filed. At this point, appellant’s counsel said he had a “short form” motion for new trial to be filed, but it would have to be amended. The court pointed out the time for filing a motion for new trial had expired. Counsel asked that appellant’s letter be considered as a motion for new trial and he be allowed to file an amended motion for new trial. While the trial judge allowed file marks as of February 11th to then be placed on the letter and the “short form” motion, he ruled that neither had been timely filed and he would not consider the same. Sentence was then imposed. On March 3, 1975, an amended motion for new trial was filed. There was no action taken on such motion.

The letter appears to be just what the trial court considered it to be — a premature notice of appeal and. a request for the appointment of counsel. There was nothing set forth as grounds for a new trial. The “short form” motion, of course, was not timely filed in accordance with Article 40.-05, Vernon’s Ann.C.C.P., and presents nothing for consideration. Morton v. State, 502 S.W.2d 121 (Tex.Cr.App.1973). The amended motion for new trial filed March 3, after sentence, and without leave of court as required by Article 40.05, supra, did not call for any action on the court’s part. Further, nothing in the letter or the motions would have called for the presentation of evidence at a hearing on such motions in order to preserve error nor does appellant so suggest.

The ground of error is overruled.

The judgment is affirmed.


author: DOUGLAS, Judge.

text:
    Billy Don JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51383.
    Court of Criminal Appeals of Texas.
    April 28, 1976.
    Rehearing Denied May 27, 1976.

      Arthur J. Brender, Jr., Fort Worth,, for appellant.
    Tim Curry, Dist. Atty. and Howard M. Fender, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction of robbery by firearms. A jury found appellant guilty; the trial court assessed punishment at twenty-five years.

On May 15, 1973, Zacarías Jiminez, a Mexican national, was working for the Rice Tilleys and lived in a small house on their property at Eagle Mountain Lake.

The sufficiency of the evidence is not challenged. Jiminez testified through an interpreter that he was awakened on the night of May 15, 1973 by a knock on the door. He turned on a lamp, went to 'the door and saw two men, one of whom he later identified as appellant. He testified that appellant, who was armed with a pistol, spoke to him in Spanish and ordered him to give him all his money. The men took about six dollars, a television set, a flashlight and a watch from Jiminez. Before leaving the premises the two men tied Jiminez by his hands and feet. Appellant’s companion pushed Jiminez to the ground while appellant held the gun about three feet from Jiminez’s head. He testified that he heard the gun click but that it did not go off. Jiminez untied himself and went to the house where the Tilleys resided.

Jiminez testified that he had spoken briefly with appellant about two weeks before the robbery when appellant was fishing at Eagle Mountain Lake. He identified appellant at a post-examining trial lineup as the man who had robbed him. The photograph was introduced.

In his first ground of error appellant complains of the refusal of the trial court to grant him a mistrial after the following argument was made to the jury during the guilt stage of the trial:

“ . . .1 wish you would have had an opportunity, ladies and gentlemen, I wish you would have had an opportunity to see how fair and square that line-up was, to see what those five colored men in the white jumpsuits actually — ”

Appellant’s objection to the argument was sustained and the jury was instructed to disregard it. A motion for mistrial was overruled. If there was any error, the court’s instruction was sufficient to cure it. The jury had seen a photograph of the lineup. The lineup was held at the request of, and in the presence of, appellant’s attorney. The court ruled that it was not suggestive. Jiminez testified before the jury that he had identified appellant at a lineup. The remarks of the prosecutor about the fairness of the lineup were not so removed from the evidence as to have irrevocably prejudiced the jury. See Twomey v. State, 520 S.W.2d 784 (Tex.Cr.App.1975).

After the motion for mistrial was overruled, the prosecutor stated: “When the shoe pinches you start hollering and screaming.” When counsel objected, he did not get a ruling. Nothing is presented for review.

In his second ground of error appellant urges that the trial court erred in not sustaining appellant’s objections to the following argument to the jury:

“ . . .He also recognized him and told the police who he was, and he also recognized — ”

He objected that there was no evidence to support the argument. It is not clear in the argument exactly which recognition by Jiminez the prosecutor was referring to. If he was referring to the lineup, it was already before the jury. Although Jiminez may never have directly told the police who his assailant was, he did give the police a thorough description of the man who robbed him. This description was before the jury by the testimony of Mary Ann Allison who had interviewed Jiminez on the night of the robbery. The prosecutor’s statement was a reasonable deduction from the evidence; the court did not err in overruling the objection. Smith v. State, 513 S.W.2d 823 (Tex.Cr.App.1974).

Appellant’s third ground of error concerns the State’s effort to impeach one of its own witnesses. Robert Saldivar was called by the State because he had worked at the same plant with appellant. He had spoken with appellant several times and was to testify that appellant was able to speak Spanish.

Appellant complains of the following:

“Q. (Prosecutor) Tell the jury whether or not you’ve heard him speak a complete sentence?
“A. I remember him speaking, but it’s been so long — I don’t pay that much attention to people when they talk to me. I couldn’t rightly say.
“Q. Last Friday, could you remember it a little bit better than you could today?
“MR. MAGNUSSEN: Your Honor, I object to this. This is his own witness. He’s trying to impeach his own witness.
“THE COURT: I’ll permit him to answer that question.
“MR. MAGNUSSEN: Note our exception to the Court’s ruling, please.
“Q. You can answer, Robert.
“A. Yes, I said he could.
U * * *
“Q. Have you heard him carry on — say a sentence in Spanish and convey a meaning in Spanish, without imagining, have you heard him do that?
“A. You are asking about something that happened a long time ago. I would have to think back on it.
“Q. Friday, did you have any problem remembering, Friday?
“MR. MAGNUSSEN: Your Honor, I object to that. It’s improper. It’s his own witness, and he is trying to impeach his own witness.
“THE COURT: Overruled.
“MR. MAGNUSSEN: Note our exception.
“Q. You can answer.
“A. Yes.
* ⅜ ⅜
“Q. Did Johnny Gonzales, our investigator, have to threaten to put you under attachment to get you up here?
“MR. MAGNUSSEN: Your Honor, I object—
“THE COURT: Sustained.
“MR. MAGNUSSEN: And I’ll ask the Court to instruct the jury—
“THE COURT: The jury will disregard the question.
“MR. MAGNUSSEN: Your Honor, that is so prejudicial to this defendant here, and the State is threatening and trying to impeach their own witness, at this time we ask for a mistrial.
“THE COURT: Overruled.
“MR. MAGNUSSEN: Note our exception to the Court’s ruling.”

If there was error, it was not reversible. The witness stated that he had remembered appellant’s ability to speak Spanish more clearly at the earlier interview. Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975). The instruction to disregard the testimony concerning the threatened attachment was sufficient to remove any error. This was especially so in light of appellant’s use of this testimony to his advantage during jury argument. Appellant did this by arguing that the prosecution had threatened the witness with jail unless he appeared and testified to what they wanted him to say. Appellant’s third ground of error is overruled.

Appellant argues in his fourth ground of error that the trial court should have charged the jury on the 1974 Penal Code law of aggravated robbery as well as the 1925 Penal Code offense of robbery by firearms. Appellant contends that since the 1974 Penal Code provides that conduct constituting a crime under the 1925 Penal Code, but not under the 1974 Penal Code, could not be prosecuted after January 1, 1974, the only way to determine if appellant’s conduct was a crime under the new code was to submit the question to the jury. Appellant filed an election to be punished under the 1974 Penal Code as allowed by Section 6(b) of the Saving Provisions of that code. The court assessed punishment. No requested instructions nor objections to the charge were submitted to the trial court. Nothing is presented for review. Grandham v. State, 528 S.W.2d 220 (Tex.Cr.App.1975).

In his fifth ground of error, appellant complains of the refusal of the trial court to include in the transcript a statement of facts of appellant’s mistrial. On July 23, 1973, appellant requested a transcript of his examining trial on the grounds that he was indigent. This order was granted by the trial court. Appellant was brought to trial for this offense on July 30, 1974, and on August 2, 1974, the trial court declared a mistrial on appellant’s motion. A mistrial was declared after the jury had failed to reach a verdict after six hours of deliberations. The second trial began September 10, 1974. On December 12, 1974, the court granted appellant’s motion for appointment of counsel on appeal and for the transcription of the statement of facts of the second trial. On December 26, 1974, appellant specifically requested that the transcript contain a record of the mistrial and the examining trial. The trial court denied this request on the same day. On June 17, 1975, appellant objected to the record on the grounds that it did not contain a statement of facts of the examining trial and the mistrial. These objections were overruled.

In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), the United States Supreme Court wrote that as a matter of equal protection a state must provide an indigent defendant with a transcript of prior proceedings when the transcript is needed for an effective defense or appeal. There is no showing that appellant was harmed in this instance by the denial of the transcript.

No request was made for the transcript of the mistrial prior to the second trial. Evidently the trial counsel saw no need of the record either for discovery purposes or for the impeachment of witnesses. If double jeopardy had been an issue a transcript of the evidence could have been a factor in the second trial. Enough of the record of the disposition of the first trial was included in the transcript before this Court to show that by agreeing to the mistrial appellant had waived any complaint of jeopardy. Willis v. State, 518 S.W.2d 247 (Tex.Cr.App.1975). Although appellant could have studied the record of the mistrial as an aid to appellate strategy, he had the alternative available of asking the trial counsel about testimony or conduct at the first trial. See Britt v. North Carolina, supra; Johnson v. State, 504 S.W.2d 493 (Tex.Cr.App.1974).

In his sixth ground of error appellant complains of the trial court’s failure to strike the testimony of Mrs. Rice Tilley. Appellant contends that her testimony was inadmissible because it was based on hearsay. It is not clear if appellant wanted the entire testimony of Mrs. Tilley struck from the record. Much of this testimony dealt with the employment relationship between Jiminez and the Tilleys, who Mrs. Tilley saw on their property the night of the robbery, and Jiminez’s condition after the robbery. This testimony was not hearsay and was admissible. Mrs. Tilley’s testimony as to the relationship of appellant and her cook was objected to as hearsay and this objection was sustained by the trial court. The trial court did not err in refusing to strike Mrs. Tilley’s testimony. Appellant’s fifth ground of error is overruled.

Appellant’s seventh and final ground of error deals with the following statement by the prosecution on voir dire:

“ . . . You judge the defense witnesses’ credibility just like you do the State’s witnesses, and this defendant has the right to testify, if he wants to. He also has the right to remain silent, if he wants to. .
“ . . . By the same token, Mr. Jackson has that right, but the State has another right, too. We have a right for this jury to decide this case on the evidence and the testimony, and because a defendant has a right not to testify, that doesn’t mean he has a right to have a jury go back in that jury room conjure up testimony for him, and say, gee, if he had testified, maybe he would have said this, or maybe he would have said that.”

Such a statement is permissible in conjunction with the State’s efforts to qualify the jury and exercise its peremptory challenges. The jury is not allowed to reach a verdict based upon speculation. The law does give a defendant a right to testify or to remain silent. At the voir dire there was no indication if the appellant would or would not take the stand and the remarks could not be taken at that time as a comment on a subsequent failure of appellant to testify. Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975); Hill v. State, 480 S.W.2d 670 (Tex.Cr.App.1972).

Finding no reversible error, the judgment is affirmed.


author: ODOM, Judge.

text:
    Vance WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51373.
    Court of Criminal Appeals of Texas.
    May 12, 1976.

      Charles E. Anderson, on appeal only, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction under our former Penal Code for receiving and concealing stolen property over the value of $50.00. Punishment was assessed at two years.

It is only necessary to discuss appellant’s ground of error in which he contends the evidence was insufficient to show that the property alleged in the indictment to have been stolen was worth more than $50, as the State was bound to prove in order to support a felony conviction. See Arts. 1430, 1421, V.A.P.C.

The indictment charged that appellant had knowingly received and concealed stolen property consisting of “one set of binoculars of the value of $17.50, and one camera of the value of $200.00 . . The

evidence as to value is contained in the following testimony of the complaining witness, R. Moorman:

“Q. [by the prosecutor]: Mr. Moor-man, what would have been the fair market value of those binoculars on December 10, 1971?
“A. [by complaining witness]: Those were relatively new and I paid $17.50 for them.
“A. Okay sir. I am going to direct your attention to State’s Exhibit # 8. Would you examine that and tell me if you can identify it?
“A. Well inside of the lid is my name and my Army serial number, and it is a Konica Camera, which is like the one which I had at the time, apparently this is the same, and there are accessories such as I had, two of them called actuary lenses for the camera, same type of exposure meter, filters for the camera, and some other filters here (indicating) and time selector switch, and a lens brush such as I had.
it * * *
“Q. What would have been the fair market value then on December 10, 1971 for that camera?
“A. Our claim, the claim that we put in for to the insurance company for reimbursement from the insurance company was $200.
“Q. Is that what the insurance company paid?
“A. No, they did not because the claim was settled. The items had been recovered and were in the Sheriff’s Department.
Q. Okay, sir. This $200 included the camera, case, and all the attachments?
“A. Yes, all of the camera and equipment.”

Construing this testimony most favorably to the jury’s verdict, there was evidence that the fair market or replacement value of the binoculars was somewhat less than $17.50. There was some evidence that the value of the camera, case, and numerous accessories aggregated $200. Appellant complains that the mere filing of an insurance claim in that amount, especially one that was never paid, is no evidence at all of fair market or replacement value. Although we are unable to find any case holding the evidence of aggregate value sufficient upon such scanty testimony, we decline to reverse the judgment for that reason in view of appellant’s failure to object to the method of proof. See Bullard v. State, Tex.Cr.App., 533 S.W.2d 812; Turner v. State, Tex.Cr.App., 486 S.W.2d 797; Tinsley v. State, Tex.Cr.App., 461 S.W.2d 605; Morris v. State, Tex.Cr.App., 368 S.W.2d 615.

It is axiomatic, however, that a conviction for theft cannot rest in whole or in part upon the theft of property not alleged in the indictment to have been stolen. Coronado v. State, Tex.Cr.App., 508 S.W.2d 373; Ballinger v. State, Tex.Cr.App., 481 S.W.2d 421. The indictment in the instant case alleged theft of a camera only, not any case or accessories. Because the evidence showed that the value of the binoculars was somewhat less than $17.50, the State was bound to prove that the value of the camera was somewhat more than $32.50.

There was no evidence from any source as to the value of the camera alone, or of the relative values of the camera, the case, or the accessories.

In Ballinger v. State, 481 S.W.2d 421, the indictment for theft over $50 alleged the defendant stole shirts and a coat. The proof showed that he had stolen shirts, a coat, and two sweater sets of the total value of $140.00. The judgment was reversed because there was no testimony of the relative value of those items named in the indictment and other items stolen but not so named. Accord, Howell v. State, 47 Tex.Cr.R. 252, 83 S.W. 185.

When the only testimony as to total value states an amount including the value of items not alleged to have been stolen, there is in effect no evidence whatsoever that the value of the items so alleged was over the amount necessary to support the conviction, as in Martin v. State, Tex.Cr.App., 491 S.W.2d 421 (citing Ballinger v. State, supra); Franco v. State, Tex.Cr.App., 312 S.W.2d 638; Perales v. State, 165 Tex.Cr.R. 638, 310 S.W.2d 335; and Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47. To permit a conviction to stand where the State has utterly failed to present any evidence upon an essential element of the offense is a denial of due process of law.

In Howell v. State, 47 Tex.Cr.R. 252, 83 S.W. 185, this Court stated:

“The statement of facts being in this uncertain condition, we cannot permit the verdict to stand. It must be shown that the property stolen was worth $50 or more before appellant can be incarcerated in the state penitentiary. It may be that this statement of facts is in this condition through inadvertence, but with this we have nothing to do.”

The judgment is reversed and the cause remanded.

      . The State relies upon Gonzales v. State, Tex.Cr.App., 478 S.W.2d 522; Hermosillo v. State, Tex.Cr.App., 475 S.W.2d 252; Collier v. State, Tex.Cr.App., 474 S.W.2d 240; Lucas v. State, Tex.Cr.App., 452 S.W.2d 468; and Esperanza v. State, Tex.Cr.App., 367 S.W.2d 861. In each of those cases, there was direct, specific, and affirmative testimony, even if hearsay, from some source as to the value of the property alleged to have been stolen.


text:
    Richard Eugene ALMAND, Appelant, v. The STATE of Texas, Appellee.
    No. 51925.
    Court of Criminal Appeals of Texas.
    May 12, 1976.
    Rehearing Denied June 30, 1976.

      Everett Lord, Beaumont, for appellant.
    Thomas L. Hanna, Dist. Atty., Jimmie R. Stanton, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., and David S. MeAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of indecent exposure to a child under Article 535c of the former Penal Code. The indictment, returned in 1973, alleged two prior felony convictions for enhancement. See Article 63, Vernon’s Ann. P. C., 1925. At the time of trial in 1975 the appellant entered a plea of guilty before the court and elected to be punished under the new Penal Code.

At the hearing on the guilty plea appellant’s written judicial confession was introduced. While the State did not formally waive the first prior conviction alleged for enhancement, it offered proof only of the second prior conviction alleged — a Louisiana conviction for “attempted aggravated crime against nature.” The appellant then took the stand and admitted he had been convicted in Louisiana as alleged. The court assessed the punishment at twenty (20) years.

On appeal for the first time appellant complains that the evidence is insufficient to show that the Louisiana conviction was for a felony so that it could be properly used for enhancement of punishment.

State’s Exhibit # 1 was admitted into evidence without objection. Such exhibit, a so-called pen packet from the Louisiana State Penitentiary, properly certified, contained a photograph and fingerprints, as well as a judgment and sentence showing appellant had been convicted of attempted aggravated crime against nature in violation of “Revised Statute 14:24 and 14:89.1” of Louisiana and had been sentenced in Cause No. 68,586 of the 14th Judicial District to serve seven and one-half years in the Louisiana State Penitentiary. In his own testimony appellant admitted he had been convicted in said Cause No. 68,586 and served his time in the penitentiary at Angola, Louisiana.

In his ground of error appellant relied heavily upon the record on appeal as originally approved which contained only appellant’s testimony and not State’s Exhibit # 1. He contends his testimony is not clear as to which conviction reference was had and thus his testimony standing alone did not show a felony conviction. However, upon the court’s order, State’s Exhibit # 1 was made a part of the record after appellant’s brief had been filed in the trial court. Appellant sought to have such order set aside, but was overruled. Such action was proper. See Guzman v. State, 521 S.W.2d 267 (Tex.Cr.App.1975). See and cf. Article 40.09, Sec. 15, Vernon’s Ann.C.C.P. Further, “felony” is defined in V.T.C.A. Penal Code, Sec. 1.07(a)(14), to mean “an offense so designated by law or punishable by death or confinement in a penitentiary.” A “misdemeanor” is defined in V.T.C.A. Penal Code, Sec. l.Q7(a)(21), to mean “an offense so designated by law or punishable by fine, by confinement in jail, or by both fine and confinement in jail.” In absence of any showing to the contrary, it is assumed the laws of another State are the same as Texas. Ex parte Burns, 507 S.W.2d 777 (Tex.Cr.App.1974); Ex parte Wilson, 437 S.W.2d 569 (Tex.Cr.App.1968); Ex parte Ivy, 419 S.W.2d 862 (Tex.Cr.App.1967); Ex parte Drennan, 417 S.W.2d 177 (Tex.Cr.App.1967).

Appellant’s initial contention is overruled.

Next, appellant contends there is no finding by the court that appellant had been convicted of a prior conviction.

After the appellant elected to be punished under the new Penal Code, the court admonished the appellant that the old Code offense with which he was charged (the primary offense) carried a penalty as a third degree felony under the new Penal Code (see V.T.C.A. Penal Code, Sec. 21.11); that such punishment could be for not less than two nor more than 10 years, and there may also be a fine not to exceed $5,000.00. The court further explained that if upon conviction for a third degree felony it was shown that there was a prior felony conviction as alleged then the punishment assessed would be that for a second degree felony [V.T.C.A. Penal Code, Sec. 12.42(a)] and punishment would be from two to 20 years and by a possible fine up to $10,000.00 (V.T.C.A. Penal Code, Sec. 12.33). The court also admonished the appellant as to punishment that would result if the two prior convictions as alleged were proved.

After the evidence of the prior Louisiana conviction was offered, the court in finding the appellant guilty stated:

“The Court has before it a recommendation which results from plea bargaining between you and your attorney and the State wherein it is recommended that your punishment be set at twenty years. The Court is going to follow such recommendation and the Court does now at this time assess your punishment as confinement in the Texas Department of Corrections for a term of twenty years.”

The formal sentence imposed reflects that the punishment assessed be not less than two nor more than 20 years.

It is true that the court did not make an express finding as it should have as to the prior conviction, but it is obvious from what has been said that the court found from the undisputed evidence that there was a prior conviction and with the agreement of the parties assessed punishment as a second degree felony. The judgment and sentence are accordingly reformed to reflect enhancement of punishment by virtue of a prior conviction. Appellant’s contention is overruled.

Lastly, appellant complains the court erred in overruling his motion for new trial after appellant introduced evidence he was incompetent at the time of his guilty plea.

At the hearing on the motion for new trial appellant testified he had previously been committed to two mental institutions, one in Texas in 1967 and one in Louisiana “in the sixties.” No records were introduced and it was not clear from appellant’s testimony the basis for such commitments. Appellant admitted he had not called the commitments to his counsel’s attention before trial even though he and his counsel had discussed consulting a psychiatrist prior to the guilty plea. It was appellant’s testimony that at the time of the guilty plea he was upset, disturbed and “awful nervous,” and that he was hard of hearing and didn’t understand everything that was going on and unable to assist counsel. He acknowledged that he recalled his counsel talking with him about the State’s recommendation and his counsel’s advice that without defense witnesses and two prior convictions alleged the punishment could be life imprisonment. It is observed that the trial court carefully inquired as to the matter of competency at the time of the guilty plea and was assured there was no question of competency. The court was also able to observe appellant’s manner and demeanor. Appellant testified both at the time of the guilty plea and on the hearing on the motion for new trial, and he was lucid and did not indicate any hearing difficulty.

Previous institutionalizing does not in and of itself require a finding that a defendant is mentally incompetent. Bledsoe v. State, 519 S.W.2d 646 (Tex.Cr.App.1975).

We find no merit in appellant’s contention the court erred in overruling his motion for new trial.

As reformed, the judgment is affirmed.

      . A copy of this opinion shall be delivered to the Texas Department of Corrections.


text:
    Delbert Lorrain PLESSINGER, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51938.
    Court of Criminal Appeals of Texas.
    May 12, 1976.

      Bob Hunt, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for burglary with intent to commit theft under the former Penal Code. Following a verdict of guilty, the court assessed punishment at life under the provisions of Article 63, Vernon’s Ann.P.C., 1925.

In two grounds of error appellant complains that the evidence is insufficient to show that the first prior conviction alleged for enhancement, an Arizona conviction, was styled “the State of Texas vs. Delbert Lorrain Plessinger, Jr.,” as alleged in the indictment.

The indictment alleged in part that:

“The said Delbert Lorrain Plessinger, Jr. on the 18th day of July, A.D.1967, was duly and legally convicted of the offense of Burglary, Count 1 a felony, in the Superior Court, of Maricopa County, Arizona, in Cause No. 51926 on the docket of said court, styled The State of Texas vs. Delbert Lorrain Plessinger, Jr., and which said court had jurisdiction of said offense.

It is obvious from the record that a printed form of indictment was used, which form had the style of each case alleged as a prior conviction printed “The State of Texas vs._”

At the penalty hearing of the trial the State offered record evidence of the Arizona conviction which showed that the case resulting in conviction was styled “The State of Arizona vs. Delbert Lorrain Plessinger, Jr.” rather than “The State of Texas vs. Delbert Lorrain Plessinger, Jr.” When the evidence of the conviction was offered, there was no objection on the ground now urged for the first time on appeal. There is no question of the identity of the appellant as the person previously convicted in Arizona.

While the carelessness here involved is not to be condoned, we are unable to say that appellant has shown surprise or that he was misled to his prejudice. See Burton v. State, 493 S.W.2d 837 (Tex.Civ.App.1973); Loud v. State, 499 S.W.2d 295 (Tex.Cr.App.1973).

The object of the doctrine of variance between allegations of an indictment is to avoid surprise, Worsham v. State, 56 Tex.Cr.R. 253, 120 S.W. 439 (1909), and for such variance to be material it must be such as to mislead the party to his prejudice. Castro v. State, 124 Tex.Cr.R. 13, 60 S.W.2d 211 (1933); Thurmon v. State, 145 Tex.Cr.R. 279, 167 S.W.2d 528 (1942).

In Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), it is written:

“Appellant further complains the indictment alleged the date of the second prior conviction as February 1, 1961, and proof showed the year ‘19561.’ The body of the judgment and all other evidence supports the allegation. Appellant apparently relies on the typing inserted in the printed form of the sentence reflecting the date thereof as ‘February 1, 19561.’ It is obvious that the typist did not clearly strike out the printed ‘5’ when typing ‘61.’ No variance is presented. See Matula v. State, Tex.Cr.App., 390 S.W.2d 263; 1 Branch’s Anno.P.C., 2nd ed., Sec. 697.1.”

In McGill v. United States, 10 F.2d 972 (5th Cir. 1926), it was held that a variance between allegation of a prior offense and proof thereof was not a fatal variance. There, the indictment charged a prior offense on a particular day, Cause No. 4468, and the proof showed the Cause No. was 4462. This was the only variance. The court wrote:

“The evidence to sustain the former conviction of the offense committed on July 27, 1923, was received without objection. It does not appear that the point was raised by demurrer, by motion in arrest of judgment, nor in any other way that might have been effective. The variation is slight and immaterial. There is no question as to the previous conviction for an offense committed on the date named, and the evidence in this record is sufficient to fully identify the offense so that a plea of autrefois convict could be sustained. . . . ”

United States v. Duran, 411 F.2d 275 (5th Cir. 1969), involved a prosecution for transporting falsely made and forged money orders in interstate commerce with unlawful and fraudulent intent. The indictment alleged the date of one money order was December 6, 1967, when proof showed the date was actually December 16, 1967. The court held that there was no fatal variance as the indictment informed him of the charges against him with sufficient specificity to allow him to prepare his defense and to protect him from future prosecutions for the same offense.

Appellant relies upon Corley v. State, 158 Tex.Cr.R. 207, 254 S.W.2d 394 (1953), where the indictment alleged the prior conviction occurred in the Criminal District Court of Dallas County when the proof showed the convicting court was Criminal District Court No. 2 of Dallas County. The case was reversed on the basis of a fatal variance despite the fact that this was the only variance. To the extent that Corley and other cases are in conflict with our holding today, they are overruled.

The judgment is affirmed.


author: CURTISS BROWN, Chief Justice. CURTISS BROWN, Chief Justice.

text:
    WARRIOR CONSTRUCTORS, INC., Appellant, v. The SMALL BUSINESS INVESTMENT COMPANY OF HOUSTON, Appellee.
    No. 1244.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    March 17, 1976.
    Rehearing granted in part and Rehearing Denied in part with opinion, April 14, 1976.

      William M. Coats, Wilson & Guest, Houston, for appellant.
    Robert L. Hines, Houston, for appellee.
   CURTISS BROWN, Chief Justice.

This is a suit by a creditor against a partial guarantor to collect on a note on which the debtor has defaulted.

The Small Business Investment Company of Houston (SBIC or appellee) filed suit against Warrior Constructors, Inc. (Warrior or appellant) to recover the sum of $35,000, which was the remaining unpaid principal on a $60,000 note that Warrior had guaranteed to the extent of $50,000. After a non-jury trial, the trial court rendered judgment that SBIC recover $30,000 in principal, plus interest thereon from the date of the acceleration of the note, along with attorney’s fees and the costs of a previous suit by SBIC against the debtor. Warrior has perfected this appeal.

Most of the facts relevant to this appeal have been stipulated by the parties and are set out in their “Agreed Statement of the Case.” On April 14, 1966, the corporate predecessor of National Electric Corporation (National) borrowed $60,000 from SBIC and executed a promissory note in that amount payable to SBIC. The note called for interest at 8% to be paid quarterly as it accrued, and for the principal to be paid in twenty-four consecutive quarterly payments of $2,500 each. The first principal payment was due on April 1, 1967. The note also contained acceleration provisions in the event of default, calling for 10% interest on the unpaid balance and attorney’s fees in the amount of 10% of the principal and interest.

Also on April 14, 1966, Warrior executed a written Guaranty Agreement in which it unconditionally guaranteed the prompt payment of the aforementioned promissory note “to the extent of $50,000.00 principal, plus all accrued interest on the sum of $50,000.00 principal, and all costs and expenses, including attorney’s fees and Court costs, for which the Borrower may be or become liable, and which may arise in the enforcement of this guaranty.”

The principal payments due April 1, 1967 and July 1, 1967 were paid by a Warrior check dated July 21, 1967. This $5,000 check was made payable jointly to National and SBIC, was endorsed without restriction by National, and was forwarded by letter dated July 21, 1967, along with a $2,400 interest payment, from Warrior to SBIC. The cover letter, on Warrior letterhead and signed by Warrior’s president, stated:

“Gentlemen:
Enclosed please find two checks; one check, No. 1544 is in the amount of $5,000.00 and the other check, No. 1545 is in the amount of $2,400.00. Both checks are drawn on behalf of National Electric Corporation and made payable jointly to National Electric Corporation and your company.
The subject checks are being forwarded to you to be applied against that certain loan, made by your company to National Electric Corporation, which loan was in the amount of $60,000.00.
It is understood by Warrior Constructors, Inc. that the check for $2,400.00 will be applied against interest that has accrued on the subject loan and that the check for $5,000.00 will be applied to reduce the principal amount of the loan, and the following terms and conditions are imposed as conditions precedent to your negotiation and/or transfer of the checks:
The $2,400.00 will be applied against accrued interest, as required. The $5,000.00 will be applied against the principal amount of the loan and will reduce Warrior Constructors, Inc.’s liability, if any, as a surety by that same amount, i. e. by $5,000.00.
If the above stated terms and conditions are acceptable to your Company, negotiate and/or transfer the checks at your convenience. If you, for any reason, do not wish to accept the terms and conditions as set out above, then return the subject checks to this office, to the attention of the undersigned.
Yours very truly,
WARRIOR CONSTRUCTORS, INC.”

By a letter dated July 28, 1967, SBIC advised Warrior that it would accept the July 21, 1967 checks subject to the conditions set out in the cover letter, but that SBIC

“will not be bound by these conditions with regard to any subsequent payments of principal and/or interest which may become due on the National Electric Corporation obligation. With regard to such future payments, The Small Business Investment Company of Houston reserves the right to require that such payments be made directly by National Electric Corporation. . . . ”

Over the next two years an additional $20,000 in principal and $8,800 in interest were paid by checks which were endorsed by, and paid to, SBIC. Every payment (and tender of payment) of principal or interest to SBIC was made in the manner described above; i. e., was made by Warrior check and with Warrior funds, with each check made jointly payable to National and SBIC, with each check endorsed without restriction by National prior to delivery to SBIC, and delivered to SBIC by Warrior with a cover letter on Warrior letterhead signed by a Warrior official identical to the letter set out above except for the amounts of the checks. In this manner Warrior ultimately paid, and SBIC accepted, a total of $25,000 in principal payments and $11,200 in interest payments.

By a letter dated July 80, 1969, National was given notice of SBIC’s election to accelerate the entire unpaid balance of principal and interest because of numerous undisputed “events of default” by National. After acceleration Warrior continued to tender the quarterly payments, each of which was returned by SBIC, until this suit was filed in 1971. SBIC has previously obtained a judgment against National for the principal amount of $35,000, plus interest, attorney’s fees, and costs, none of which has been paid by National. SBIC also obtained judgment against the co-guarantor of the note, which has likewise remained unpaid.

Appellant’s first point of error asserts that the trial court erred in failing to hold that appellee was obligated to apply the principal payments to the guaranteed portion of the debt. The trial court held that appellee’s written acceptance of the conditions upon which the first $5,000 of principal payments were tendered served to reduce appellant’s guaranty obligation by that amount. However, the court concluded that “[a]ll other attempts by Warrior to reduce its guaranty obligation to SBIC were unilateral and never accepted by SBIC and did not serve to reduce the guaranty obligations of Warrior either as to principal, interest, attorney’s fees or costs.” In so holding the court erred. Warrior’s efforts were not unilateral because they involved SBIC’s acceptance and use of the funds. SBIC could not accept the benefits and avoid the burdens.

Whether a partial guarantor has the right to direct that a payment it makes on behalf of the debtor be applied to the guaranteed portion of the debt has not been answered in Texas. However, the issue has been addressed by courts in several other jurisdictions. In a few instances, courts have declined to reduce a guarantor’s liability even though the funds which were ultimately used to pay off a portion of the debt originated in the guarantor. See Leavenworth Savings & Trust Co. v. Newman, 52 F.2d 813 (W.D.Mo.1931); William Filene’s Sons Co. v. Lothrop, 243 Mass. 214, 137 N.E. 255 (1922); Domergue v. Mayer-Israel Co., 161 Miss. 545, 137 So. 486 (1931). However, in each of the above cases not only did the payments to the creditor come directly from the debtor, but there was neither a direction that they be applied to the guaranteed portion of the debt nor any knowledge on the part of the creditor that such was the intention of the guarantor in advancing the funds.

In the instant case the creditor accepted the principal payments knowing that they originated in the guarantor and that it was the guarantor’s intention that they be applied to reduce its liability on the guaranty. This is sufficient to require that the payments be applied to the guaranteed portion of the debt. See Ivers & Pond Piano Co. v. Peckham, 29 Wis.2d 364, 139 N.W.2d 57 (1966); Coxe Bros. & Co. v. Milbrath, 116 Wis. 102, 92 N.W. 560 (1902); Bayer v. Lugar, 106 App.Div. 522, 94 N.Y.S. 802 (1905), aff’d mem., 186 N.Y. 569, 79 N.E. 1100 (1906); Hatch & Brookman v. Kula, 194 Iowa 619, 190 N.W. 969 (1922); cf. Texas Co. v. Schram, 93 S.W.2d 544 (Tex.Civ.App.-Austin 1936, no writ); N. O. Nel son Mfg. Co. v. Wallace, 66 S.W.2d 505 (Tex.Civ.App.-Eastland 1933, writ ref’d). See also 38 C.J.S. Guaranty § 79 (1943); Annot., 57 A.L.R.2d 855 (1958).

Appellant’s second and third points of error assert that, irrespective of the preceding issue, the endorsement and negotiation of their checks by appellee constituted an acceptance of the conditions on which they were submitted.

Whether the letters which accompanied the checks that appellant sent to appellee are construed as an offer to modify the existing Guaranty Agreement or as an offer to form a separate agreement, nonetheless each was an offer to create a binding contract. Appellant never owed appellee a duty to make the payments on behalf of National, so the tendered payments represented a sufficient detriment to the offeror to constitute valid consideration for a subsequent agreement between appellant and appellee.

It is universally recognized that a binding contract may be formed by the retention of or exercise of dominion over the thing offered. Restatement of Contracts § 72 (1932); 17 C.J.S. Contracts § 41e (1963); 17 Am.Jur.2d Contracts § 47 (1964); 1 S. Williston, Law of Contracts § 91D (3rd ed. 1957); 1 A. Corbin, Corbin on Contracts § 75 (1963). The cashing of appellant’s checks by appellee was such an exercise of dominion over the funds as to constitute an acceptance of the conditions on which they were offered, notwithstanding any previous attempt to repudiate those conditions. Therefore, each time that appellee cashed one of the tendered checks it bound itself to reduce appellant's guaranty obligation by the amount of the check that represented payment on principal.

Appellant’s fourth and fifth points of error assert that the trial court erred in assessing interest and attorney’s fees against it. The rule is that a creditor who makes an excessive demand upon his debtor is not entitled to attorney’s fees for subsequent litigation required to recover the debt. Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30 (1955); Ingham v. Harrison, 148 Tex. 380, 224 S.W.2d 1019 (1949). Similarly, the creditor is not entitled to interest on the debt until the date of the trial court’s judgment. Ingham v. Harrison, supra; Keystone Pipe & Supply Co. v. Zweifel, 127 Tex. 392, 94 S.W.2d 412 (1936).

It is irrelevant that appellant, in the position of a debtor here, did not tender to appellee the proper amount due, for the rule is that tender is excused where the creditor has clearly indicated that he is unwilling to accept what is due in discharge of the debt. Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942); Ada Oil Co. v. Logan, 447 S.W.2d 205 (Tex.Civ.App.-Houston [14th Dist.] 1969, no writ); Kriegel v. Scott, 439 S.W.2d 445 (Tex.Civ.App.-Houstin [14th Dist.] 1969, writ ref’d n. r. e.).

In letters dated September 3, 1970, October 28, 1970, and January 12, 1971, and signed by appellee’s legal counsel, appellee advised appellant that “no less than complete payment of the total unpaid balance of principal, interest and attorney’s fees will be accepted. . . ” At the time these demands were made, the total unpaid balance of principal was $35,000. However, appellant was only liable for $25,000 of that amount. Given the unqualified nature of appellee’s demands, appellant could reasonably have assumed that a tender of $25,000 in principal would not be accepted. Therefore, appellant was excused from making such a useless tender. Indeed, in such a situation the effect is the same as if the appellant had actually tendered to appellee the correct amount due. Ingham v. Harrison, supra. Appellee does not argue that appellant’s failure to pay or tender the correct amount in a lump sum was due to some other reason than the excessiveness of the appellee’s demands. Rather, appellee has simply taken the erroneous position that its demands were not excessive. Therefore, it was error to hold appellant liable for attorney’s fees and for interest prior to the date of the trial court’s judgment.

Appellant also contends that there was an overpayment of $3,250.10 in interest to appellee up to the time appellee stopped accepting payments, and that this overpayment should be credited to any remaining interest obligation appellant may have. This contention is based on the fact that under the Guaranty Agreement appellant was obligated to pay interest only on the sum of $50,000, whereas the interest payments it actually made were based on the full amount of the note. This argument is essentially that, as with the principal payments, the interest payments made by appellant should be applied to the guaranteed portion of the obligation.

The condition to appellee’s acceptance of the funds, as stated in appellant’s cover letters, was only that appellant’s liability as guarantor be reduced by the amount of the principal payment. A reduction of the guaranty obligation by the amount of the interest payment was not made a condition. Moreover, the language of appellant’s cover letters implied that it did not contemplate such a reduction. Where appellant had meant for its liability as surety to be reduced (i. e., by principal payments), it had said so. Therefore, from its failure to do so with regard to interest payments arises the implication that it did not intend for those payments to effect such a reduction. Thus, while appellee knew that the interest payments originated in appellant, the implication was that appellant did not intend a corresponding reduction of its guaranty obligation. In this situation appellee was not obligated to apply the payments to the guaranteed portion of the debt. We hold that there was no overpayment of interest by appellant which should be applied to its remaining interest obligation.

By way of a cross point, appellee asserts that the trial court erred “in determining that the agreement of appellees to lower the guaranty liability by the principal sum of $5,000.00 should be credited to the note liability rather than to the guaranty liability.” The conditions on which all payments were tendered were stated in appellant’s cover letter as follows:

“The $5,000.00 will be applied against the principal amount of the loan and will reduce Warrior Constructors, Inc.’s liability, if any, as a surety by that same amount, i. e. by $5,000.00.”

The trial court apparently interpreted ap-pellee’s written acceptance of these conditions as to the first $5,000 of principal payments to mean that $5,000 should be deducted from whatever amount appellant might ultimately owe under its contract of guaranty. For this reason the trial court awarded appellee only $30,000, even though the court was of the opinion that appellant’s guaranty liability had not been reduced below the total remaining unpaid balance of $35,000. It is to this action of the trial court that appellee’s cross point presumably refers. We disagree with the trial court’s interpretation of the consequences of appellee’s acceptance of the offers, and therefore sustain the cross point.

The terms of the Guaranty Agreement limited appellant’s liability on the $60,000 note to the sum of $50,000. This was its maximum potential liability as guarantor. We hold that with each principal payment that was accepted by appellee on the condition that appellant’s “liability ... as a surety” be correspondingly reduced, only appellant’s maximum potential liability was reduced. We have held that a total of $25,000 in principal payments was accepted on the conditions stated; therefore, appellant’s maximum potential liability must be reduced by a like amount, from $50,000 to $25,000. Since the unpaid balance on the note is greater than $25,000, appellant is liable to the full extent of its remaining guaranty obligation.

The judgment of the trial court is reversed,, and we here render judgment that appellee Small Business Investment Company of Houston recover from appellant Warrior Constructors, Inc. the sum of $25,000.00 as principal and the sum of $18.00 as costs for the previous suit by appellee against National Electric Corporation, together with 10% interest on said principal amount from May 6, 1971, until paid, and 6% interest on said costs from May 6, 1971 until paid.

Reversed and rendered.

CIRE, J., not participating.

ON MOTION FOR REHEARING

CURTISS BROWN, Chief Justice.

In its motion for rehearing appellee has pointed out to us that the $4,245.69 in attorney’s fees awarded it by the trial court was not for work done in the instant case against appellant, but rather was for fees awarded it in its previous suit against National. The Guaranty Agreement between appellant and appellee provided that appellant unconditionally guaranteed the payment of

“all costs and expenses, including attorney’s fees and Court costs, for which the Borrower may be or become liable, and which may arise in the enforcement of this guaranty.”

Although due to appellee’s excessive demands appellant may not be held liable for any attorney’s fees which arose in the enforcement of the guaranty, we feel that appellant must still be held contractually responsible for attorney’s fees for which the borrower, National, has become liable.

We therefore sustained the fifth point of appellee’s motion for rehearing and amend our former judgment to include the following:

that appellee Small Business Investment Company of Houston recover from appellant Warrior Constructors, Inc. the sum of $4,245.69 as attorney’s fees for the previous suit by appellee against National Electric Corporation, together with 6% interest on said attorney’s fees from May 6, 1971 until paid.

In all other respects appellee’s motion for rehearing is overruled.


author: AKIN, Justice.

text:
    Benny ABRAMOV, Appellant, v. ROYAL DALLAS, INC., Appellee.
    No. 18809.
    Court of Civil Appeals of Texas, Dallas.
    March 18, 1976.

      Linda S. Aland, Watson, Davis, Strother & Methium, Dallas, for appellant.
    John D. Crawford, Dallas, for appellee.
   AKIN, Justice.

This is an appeal by defendant, Benny Abramov, from an order granting plaintiff, Royal Dallas, Inc., a temporary injunction against him enforcing a covenant not to compete and from a temporary mandatory injunction requiring defendant to deposit into the court’s registry funds and property alleged to belong to plaintiff.

On a temporary injunction appeal the issue presented is whether the trial court abused its discretion in issuing or refusing the writ. Transport Company of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953); Electronic Data Systems Corp. v. Powell, 524 S.W.2d 393, 395 (Tex.Civ.App.-Dallas 1975, writ ref’d n. r. e.). Defendant contends that the trial court abused its discretion in enforcing the covenant not to compete because the covenant in the original contract between defendant and Royal Trading, Inc. was not assigned to plaintiff. Additionally, defendant urges an abuse of the court’s discretion in granting the mandatory injunction because plaintiff has an adequate remedy at law for recompense in damages. We cannot agree with these contentions and, accordingly, affirm the order of the trial court.

The Covenant Not To Compete

On August 15, 1970, defendant entered into a written contract creating a partnership with Hanan Benjamini, Y. Fouzailoff, Amnon Benjaminov, and Royal Trading, Inc. for the purpose of establishing a wholesale diamond distributing business. Ben-jamini, Fouzailoff and Benjaminov owned all of the shares in Royal Trading. Defendant was referred to as Part B of this contract and the others were designated as Part A. Profits and losses were to be shared with defendant receiving one-third, and Part A receiving two-thirds. Additionally, defendant drew $500 monthly. Defendant was to devote all of his time to the business, which was to be operated as a branch of and under the name of Royal Trading, Inc. Embodied in this agreement was a covenant by defendant not to compete with the company, Royal Trading, Inc., in Texas for a period of five years in the event the relationship was terminated or in the event of Royal Trading’s dissolution. This agreement further provides that in the event that defendant engages in a business in violation of this covenant, the profits of such a business should be considered as income of the partnership. The contract was written in Hebrew and all parties involved were Israelis, who had, in varying degrees, difficulty with the use of the English language.

On November 12, 1973, a second agreement was executed’by the same parties to the original contract. This agreement, referred to by the parties as a “special protocol,” was also written in Hebrew. It specifically referred to the “business beginning in August 1970” and provided that defendant’s monthly draw was to be increased to $750; defendant was to “put more order in the bookkeeping system . . .for the welfare of the business; ” and the name of the business previously conducted under the name of Royal Trading, Inc. was to be changed to Royal Dallas, Inc. Pursuant to this agreement Royal Dallas, Inc. was incorporated. The partnership continued as it had under the original agreement until 1975 when the defendant commenced a business, known as Ben-Gil Co., in competition with plaintiff. This business was operated out of plaintiff’s office in Dallas. The trial court found that plaintiff, Royal Dallas, was the successor in interest of Royal Trading in the partnership, and, consequently, Royal Dallas had the right to enforce the covenant. We agree because we interpret the second agreement as nothing more than a modification and renewal of the original agreement.

Defendant argues, however, that because Royal Dallas was not mentioned in the 1970 agreement and because there had been no formal proceedings for corporation succession, plaintiff cannot assert the provisions of the 1970 agreement. We cannot agree because the evidence shows that Royal Trading was succeeded in interest in the partnership by Royal Dallas with defendant’s consent. The signatory parties referred to as Part A in the contract of 1970 and the special protocol of 1973 were identical. Both corporations were wholly owned by the same Part A signatories in both agreements. The partnership business merely used first the name of Royal Trading, Inc., and then that of Royal Dallas, Inc. with defendant’s express agreement.

During the hearing Mr. Benj amino v testified that the purpose of the special protocol was to transfer everything from Royal Trading to Royal Dallas. He further stated that the 1970 agreement was not ended but rather everything was going to be the same: “We just transfer.” Furthermore, he stated that a11 of the business interest of Royal Trading was transferred to plaintiff. After the 1973 agreement, the parties to both agreements conducted themselves from the date of the special protocol in 1973 until the time of suit as though the original agreement was still in effect. These acts of the parties are the best evidence of what they intended by the special protocol of 1973. Although this 1973 agreement did not specifically assign the covenant not to compete from Royal Trading to plaintiff, we hold that the evidence presented is sufficient for the trial court to have concluded that plaintiff was a predecessor in interest of Royal Trading in the partnership and that the covenant was transferred with this interest to plaintiff. Consequently, plaintiff was entitled to enforce the covenant. We hold also that there was no need to expressly assign the covenant. Our holding is supported by Wells v. Powers, 354 S.W.2d 651 (Tex.Civ.App.-Dallas 1962, no writ) in which this court held that there need be no express assignment of a contract in order for a party to assert the provisions of the contract. In that case this court stated that “upon a subsequent sale of the business, such covenant will pass as incident of the business even though not expressly assigned.” Id. at 654. Since there is identity of parties signatory to both contracts and since all that occurred here was a change of the name under which the partnership operated, our facts are even more compelling than in Wells.

To agree with defendant would permit a person to take advantage of a technicality to perpetrate an injustice on the real parties in interest. This is particularly true here since the transfer was actually made after defendant agreed to it in the 1973 special protocol, which specifically referred to the continuation of the partnership business established in 1970. To say that the parties intended that the covenant not to compete contained in the 1970 agreement was not to be carried forth into the 1973 agreement would be absurd. And, certainly the trial court was justified in concluding that this was the intention of the parties at the time that the special protocol was executed in 1973. Consequently, we hold that the trial court did not abuse its discretion in granting the temporary injunction.

Mandatory Injunction

Defendant’s second contention is that the trial court abused its discretion in issuing the writ of mandatory injunction requiring the defendant to deposit into the registry of the court certain funds and personalty in his possession. Defendant argues that there is an abuse of discretion because plaintiff has an adequate remedy at law in damages. We cannot agree. The 1970 agreement recites that defendant had no assets. Moreover, at the hearing defendant stated that his current assets were $100,000 and his accounts payable were $167,000. He further testified that he could not return other goods in his possession and that there was no way that he could repay plaintiff without selling his inventory which apparently belonged to the partnership business. These statements by the defendant are ample to support the trial court’s order maintaining the status quo and protecting any rights to the property that plaintiff may prove on trial of this cause on the merits. Indeed, this testimony of the defendant strongly suggests that had not the trial court acted by issuing its writ, plaintiff, if it prevails at trial on the merits, may indeed win an empty victory.

Affirmed.