author: TOM G. DAVIS, Judge.

text:
    Larry SINEGAL, Appellant, v. The STATE of Texas, Appellee.
    No. 58010.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 13, 1979.

      Joseph C. Lum, Hawthorn, court appointed, on appeal only, Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
    ...Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for attempted capital murder. Punishment was assessed by the jury at ninety-nine years.

Evidence adduced at trial reflects that on January 13, 1977 the appellant and a companion entered Scalco’s Produce in Port Arthur and robbed the owner, Stephen Scalco, at gunpoint. During the course of the robbery an employee, Willie Sanders, was shot by appellant.

At the outset appellant contends that the court erred in failing to make specific findings of fact concerning the voluntariness of appellant’s confession.

Appellant filed a motion to suppress his confession and the court held a hearing thereon in compliance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) and Article 38.22, V.A.C.C.P.

Appellant urges that the court’s findings were not specific on contested issues of fact relating to coercive acts of the police which caused appellant to give a confession. Specifically, appellant argues that the following disputed facts were not resolved by the court’s findings:

“1. Being struck in the mouth by Duna-hoe;
“2. Being struck in the stomach by Du-nahoe;
“3. Being stood on by Hughes;
“4. Being threatened with a gun by Hughes;
“5. Being verbally threatened by Duna-hoe after Hughes’ physical abuse that if he didn’t confess then they were going to finish what they started.”

The court’s findings first recited that appellant was warned of his rights, understood all the warnings, voluntarily waived the same, and freely and voluntarily gave the statement. The court then found that appellant “was not hit, abused or threatened in any manner prior to giving the statement.”

Appellant contends that under our holdings in Hester v. State, 535 S.W.2d 354 and Quinn v. State, 558 S.W.2d 10, we should abate the appeal and direct the trial court to make “specific findings of fact on the above disputed issues of fact” since appellant challenged the ruling of the court in admitting the confession.

On appeal challenges to the trial court’s ruling generally should be directed to whether the trial court abused its discretion in one of its findings of fact or to whether the trial court properly applied the law to those facts found by it. This Court is not the proper forum for the initial fact-finding process, but should restrict its review of the facts to any issues raised in challenge to the trial court’s findings. The findings should resolve the disputed fact issues upon which the grounds of error are based. Hester v. State, supra; Quinn v. State, supra.

In Hester the trial court’s findings were nothing more than conclusory recitations that there was a knowing waiver of rights and that the confession was voluntarily made. In Hester it was noted that there were numerous disputed fact issues upon which grounds of error were bottomed. In Quinn there were disputed fact issues giving rise to grounds of error concerning (1) the assertion of the right to counsel before the written and oral confessions were given (2) the defendant’s assertion of his right to remain silent (3) that defendant was beaten numerous times by various officers (4) the questioning of defendant in the interrogation room (5) that a witness had informed the police of the location of the pistol prior to the oral confession. Only one of the disputed fact issues was resolved by the court’s findings.

Our holdings in Hester and Quinn do not, however, require the trial court to make with minute specificity findings on each factual issue relating to physical and mental abuse, coercion, improper or lack of proper warnings or any other factual dispute relevant to whether there was a knowing waiver of rights and the confession was voluntarily made. Appellant claims that his confession was involuntary because of physical acts of abuse and threats. The court found that appellant “was not hit, abused or threatened in any manner prior to giving the statement.” We hold that the trial court’s findings herein amply resolved the factual issues upon which appellant bases his ground of error relating to the admission of the confession. We reject appellant’s request that we abate this appeal and direct the trial court to make further findings.

Appellant contends the court erred in admitting his confession into evidence “because the undisputed testimony shows his confession was involuntary.”

Appellant claims that evidence offered by him that Officer Hughes inflicted physical abuse upon him and that Officer Dunahoe threatened to finish what they started is undisputed.

Whenever the testimony of the accused is undisputed as to alleged coercive acts, then as a matter of law the confession is inadmissible. Farr v. State, Tex.Cr.App., 519 S.W.2d 876; Sherman v. State, Tex.Cr. App., 532 S.W.2d 634; Smith v. State, Tex. Cr.App., 547 S.W.2d 6.

Appellant concedes that Dunahoe expressly testified in response to his questions that he did not hit appellant in the mouth or stomach but urges that there was no evidence to refute his testimony that Hughes stood on him and threatened him with a gun. Further, it is contended that appellant’s testimony relative to Dunahoe’s threat to finish what they had started was not refuted.

Appellant testified that the events in question occurred on the trip from the county jail in Beaumont to the Port Arthur police station. Appellant related that as they arrived in Port Arthur they came to a divided highway and that they proceeded on the road toward Winnie and parked at a place “where there’s no houses.” After the car was stopped, appellant stated that Officer Hughes, “had his gun out and said ‘You want to do him like he did that man,’ so I said, ‘Hold on, man, whatever you want to know, I’ll tell you.’ ” Dunahoe “was out of the' car on the same side” where these events transpired. Appellant then agreed to make a confession and they got back in the car and continued the trip to the Port Arthur police station.

Appellant testified that when the trip resumed Dunahoe said, “If you don’t say . tell us what we done when we get there, then we gonna finish what we started when we get there.”

Hughes did not testify. Dunahoe related that they took appellant “directly from the County Jail [Beaumont] to the Port Arthur Police Department” and they “didn’t stop anyplace.” They departed about “six fifteen” and arrived about “twenty to seven.” Hughes drove the vehicle and Dunahoe sat in the back seat with appellant. There were no stops except at traffic lights and they did not “stop anywhere to converse” with appellant. Under cross-examination Dunahoe stated that he did not make any promise that “it would go easy on him” if appellant made a statement. In response to a question about what means he used to encourage appellant to make a statement Dunahoe stated that the only thing was telling appellant that “his accomplice had told us that he was the man that had shot him and had been involved in the robbery.” Dunahoe read appellant his rights after the trip to Port Arthur began and appellant orally admitted the crime during the trip. Upon arrival in Port Arthur Judge John Knowles warned appellant of his rights and a written confession was taken following such warning.

The instant case is unlike Farr v. State, supra, and Sherman v. State, supra, where the acts of coercion were uncontradicted. Appellant’s testimony places the coercive acts of Hughes at a place where a detour and stop were taken on the trip from the Beaumont jail to the police station in Port Arthur. It is undisputed that there were two officers in the vehicle, Hughes the driver and Dunahoe who sat in the back seat with appellant. Appellant related that the car was stopped, Hughes got out of the car, put his feet on him and pointed his gun toward him and threatened him. Duna-hoe’s testimony that their trip was uninterrupted except for stops at traffic lights refutes this testimony. Obviously, Hughes would had to have stopped the vehicle to get out of the car and stand on appellant. Dunahoe’s testimony that the only means used to encourage a confession was his statement to appellant that the accomplice had told them that appellant had taken part in the crime tends to refute the claim that the evidence of threats is undisputed. In addition the threats allegedly took place during and immediately following a stop which Dunahoe denied. While Hughes did riot testify, it is undisputed that Dunahoe was with appellant during the entire trip which lasted only about twenty-five minutes. We hold that appellant’s allegations of coercion were rebutted by the testimony of Dunahoe and find that the court’s findings regarding the admissibility of the confession are supported by the evidence.

The judgment is affirmed.


source: Caselaw Access Project

author: DALLY, Judge.

license: Public Domain

text:
    Louis LYLES, Appellant, v. The STATE of Texas, Appellee.
    No. 59615.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 13, 1979.

      Gerald A. Woolf, court appointed, on appeal only, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Clyde A. Wilson, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for unauthorized use of a motor vehicle. Punishment, enhanced by two prior felony convictions, is imprisonment for life.

Appellant contends through counsel on appeal that the trial court erred when it found that appellant had not knowingly and intelligently waived the right to counsel, and refused to dismiss appellant’s court-appointed counsel. In a pro se brief on appeal, appellant contends that he was improperly reindicted after his original conviction was overturned by this Court; the evidence is insufficient to support the conviction; there was no probable cause for his arrest; he was denied the opportunity to present witnesses in his behalf; and the prosecutor made prejudicial comments during his argument to the jury.

Appellant was indicted in the instant cause on October 10, 1977. On October 20 appellant filed a motion to dismiss his court-appointed attorney, Mr. Bill Rosch, and appoint another attorney; the motion was considered by Judge W. C. Moore and denied on October 21. Appellant was arraigned and pleaded not guilty on October 24. Appellant’s dissatisfaction with counsel was apparently discussed, but Rosch was not dismissed. Immediately prior to the trial of this case, on December 7, appellant renewed his request to dismiss Rosch before Judge George Taylor, the trial judge in this case. Rosch took the stand and testified that appellant had previously decided that he wanted to represent himself, and he (Rosch) considered appellant competent enough to represent himself. Rosch stated that he had not been able to intelligently discuss the facts of the case with appellant and appellant refused to accept his legal advice.

The trial court questioned appellant and determined that appellant was thirty-five, had a tenth grade education, had no established occupation, had never acted in his own defense before, and was unfamiliar with basic legal doctrines applicable to criminal cases. The trial court also questioned appellant concerning his desire to waive counsel and represent himself:

“Now, Judge Moore granted your right to represent yourself. I want to double check that that’s correct; isn’t it?
“Mr. WILSON: Yes, sir, he’s been at least twice—
“MR. ROSCH: Yes, sir.
“THE COURT: I understand he’s fully admonished you and advised you about matters that you should take into consideration in arriving at a waiver of the right to counsel.
“THE DEFENDANT: Excuse me, your Honor. He has not said that. What I asked him was that he dismiss this counsel and appoint me to someone else. He denied this and I said I would represent myself. If I am going to be denied a lawyer or legal counsel in the courtroom, then I will represent myself because I will not go to Court with Mr. Rosch.
“That was the argument. That was what was said.
“THE COURT: Let me tell you something right now. I don’t mean to be harsh with you in the slightest degree, but you are going to go to trial.
“THE DEFENDANT: Yes, sir.
“THE COURT: And you can go to trial as this Court now decides representing yourself or accepting Mr. Rosch as your counsel and you don’t have to accept him.
“The Court appoints him. Now, are you still of the notion that you can’t have your own counsel, or if you can’t force the Court to appoint counsel of your selection, then you don’t [want] any counsel?
“Is that your proposition?
“THE DEFENDANT: That’s right, sir.”

The court held that appellant did not understand the consequences of a waiver of counsel and had not knowingly and intelligently waived his right to counsel. Rosch represented appellant at trial.

Appellant contends that the court erroneously denied his request to represent himself at trial. No affirmative waiver of the right to counsel appears in the record. Appellant only stated that he did not want to proceed to trial with Rosch and would represent himself if forced to trial with Rosch. This Court has held that “a request for appointment of different counsel, coupled with an affirmative denial of self-representation, is not a waiver of the Sixth Amendment right to the assistance of counsel.” Thomas v. State, 550 S.W.2d 64 (Tex.Cr. App.1977). The Court in that case went on to hold that “absent a waiver, effective representation must be afforded the indigent defendant regardless of whether it is requested by him.”

A waiver of the right to counsel must be voluntarily and knowingly made. Barbour v. State, 551 S.W.2d 371 (Tex.Cr. App.1977); Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976). A waiver will not be presumed from a silent record, Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Ex parte Auten, 458 S.W.2d 466 (Tex.Cr.App.1970), and courts will indulge every reasonable presumption against the waiver of fundamental constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Barbour v. State, supra. From the record in this case, we cannot say that appellant exercised a knowing, voluntary, and intelligent waiver of his right to counsel. Compare Thomas v. State, supra.

Appellant contends that the trial court should have granted the request to dismiss Rosch as his attorney. According to Rosch’s testimony, he was the second or third attorney who had been appointed to represent appellant. Appellant’s motion to dismiss Rosch had previously been considered and denied. Rosch had been appellant’s attorney for close to two months. An accused’s right to represent himself or select his own counsel cannot be manipulated so as to obstruct the orderly procedure of the courts or interfere with the fair administration of justice. Webb v. State, supra; Gonzales v. State, 532 S.W.2d 343 (Tex.Cr. App.1976). A trial judge is under no duty to search until he finds an attorney agreeable to the defendant. Gonzales v. State, supra; Viges v. State, 508 S.W.2d 76 (Tex. Cr.App.1974). It appears from the record that attorney Rosch presented an adequate defense for appellant, and certainly a better defense than appellant himself would have presented. Contrast Trevino v. State, 555 S.W.2d 750 (Tex.Cr.App.1977). The trial court did not err in refusing to dismiss Rosch.

The remainder of the contentions on appeal are raised pro se by appellant.

Appellant was originally indicted for this offense on July 30, 1975. He pleaded guilty before the court, and was sentenced to imprisonment for ten years. That conviction was reversed by a decision of this Court dated June 22, 1977, because the indictment was faulty. Appellant was rein-dicted in the instant cause on October 10, 1977. Appellant complains that his rein-dictment was harsh and vindictive, and denied him due process of law under Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

A comparison of the two indictments reveals that both allege the same offense of theft, enhanced by the same two prior felony theft convictions. The 1977 indictment includes a second count alleging the offense of unauthorized use of a motor vehicle, that the 1975 indictment does not include. However, the level of punishment was not affected because, given the prior convictions, the punishment would be automatically assessed at life imprisonment whether the conviction was for theft or unauthorized use of a motor vehicle. The latter offense is not a more serious offense than theft, in which case its addition to the indictment would indicate prosecutorial vindictiveness; rather, it is a lesser included offense of theft. See Neely v. State, 571 S.W.2d 926 (Tex.Cr.App.1978). Moreover, Rosch testified that appellant was offered the same plea bargain during the instant prosecution that he was offered and accepted in 1975. Appellant rejected the renewed offer in the instant ease and elected to go to trial. Thus the increase in punishment from ten years to life imprisonment was not due to the vindictive action of the State but to appellant’s own choice. See Ronk v. State, 578 S.W.2d 120 (Tex.Cr.App.1979); Bouie v. State, 565 S.W.2d 543 (Tex.Cr.App.1978); Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). Appellant was not denied due process of law.

Appellant contends that because of his reindictment he was subjected to improper joinder of prosecutions in violation of V.T.C.A. Penal Code, Sec. 3.02(c). That statute generally provides that, if a conviction is overturned on appeal and a new trial ordered, offenses not joined in the original prosecution may not be joined in a single reprosecution. However, in this case the added offense of unauthorized use of a motor vehicle is a lesser included offense of the originally charged offense of theft. Even if the second count had not been added to the 1977 indictment, the trial court could have charged the jury on the lesser included offense if the evidence supported such a charge. In fact, the evidence did support the charge, and appellant was convicted for the lesser included offense. The inclusion of the lesser included offense in the second indictment did not violate Sec. 3.02(c), supra. See also Art. 37.14, V.A.C. C.P.

Appellant contends that the evidence is insufficient to sustain his conviction because the State never proved that the car which was stolen from the complainant’s car lot was the car which appellant was driving when he was arrested by the police. The complainant, John Ram-mer, testified that when he opened his car lot for business on the morning of Monday, June 23, 1975, lie noticed that a 1969 Plymouth was missing. The car had been on the lot when Rammer closed at 6:00 p. m. on June 21, the previous Saturday. Rammer testified that he had the keys to the car over the weekend. Several days later the police called Rammer and told him they had recovered the car and for him to bring the ownership papers and pick the car up. Rammer noticed when he got the car back that part of the dash had been taken off, the ignition switch was missing, and “twenty or thirty” wires had been cut and some of them spliced together to hot wire the car.

Houston police officer C. M. Wells testified that on June 25,1975, he saw appellant driving a white 1969 four door Plymouth, license plate number LEE 942. He stopped appellant, and when he looked inside the car he noticed that the wires underneath the dash had been pulled out. He also noticed a chisel and a large screwdriver on the rear seat. Appellant was taken into custody and the car was towed to the police station to be impounded.

The evidence of the identity of the car in question was not developed nearly as well as it could, or should, have been. However, it has long been established that the corpus delicti can be proved by circumstantial evidence. Smith v. Texas, 329 F.2d 498 (5th Cir. 1964); Williams v. State, 156 Tex. Cr.R. 636, 245 S.W.2d 709 (1952); Saulter v. State, 151 Tex.Cr.R. 550, 209 S.W.2d 184 (1948); Mills v. State, 123 Tex.Cr.R. 395, 59 S.W.2d 147 (1933); Willard v. State, 27 Tex. App. 386, 11 S.W. 453 (1889). We also note that there was no controversy at trial concerning the identity of the vehicle recovered as the one which appellant was driving when he was arrested. See Johnson v. State, 160 Tex.Cr.R. 430, 271 S.W.2d 943 (1954). We hold the evidence sufficient to support the conviction. Cf. Humphries v. State, 163 Tex.Cr.R. 601, 295 S.W.2d 218 (1956).

Appellant next contends that Officer Wells did not have probable cause to arrest him. Appellant does not contend that any evidence seized incident to his arrest was admitted at trial. An arrest is riot an evidentiary element of a conviction, and an unlawful arrest per se is not cause for reversal. Johnson v. State, 548 S.W.2d 700 (Tex.Cr.App.1977); McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Stiggers v. State, 506 S.W.2d 609 (Tex.Cr.App.1974); Robinson v. State, 502 S.W.2d 819 (Tex.Cr. App.1973). Nevertheless, we discuss appellant’s contention.

Wells testified that an informer first pointed appellant out to him as appellant was leaving a convenience store in the 4700 block of Canal St. in Houston. The informer, who Wells testified was reliable and had always given “true and correct” information in the past concerning narcotics, told Wells that appellant was going to pick up some heroin. Wells followed appellant’s car for a few blocks, and observed appellant and his companion leave the car and enter a telephone booth on the corner of Milby and Canal.’ While one of the men used the phone, the other was “feeling around” in the telephone booth, according to Wells. Wells testified that telephone booths in the area were commonly being used to hide heroin. Appellant left the telephone booth and was arrested at 900 Sampson. The information given by the previously reliable informer, combined with appellant’s subsequent actions which corroborated the information, gave Wells probable cause to arrest appellant. See, e. g., Houston v. State, 506 S.W.2d 907 (Tex.Cr.App.1974); Fries v. State, 495 S.W.2d 909 (Tex.Cr.App.1973); Mendoza v. State, 492 S.W.2d 489 (Tex.Cr. App.1973); Washington v. State, 492 S.W.2d 473 (Tex.Cr.App.1973). Appellant’s contention is overruled.

Appellant contends that he was denied the opportunity to present witnesses in his behalf. At trial appellant made known his desire to call a witness who was in a holdover cell near the courtroom. Appellant’s attorney Rosch, however, informed the trial judge that he had already interviewed the witness, the witness had nothing to offer on the issues raised by the case, and it would be “detrimental” to appellant’s defense to call the witness. Rosch refused to call the witness. The record does not suggest what the witness’ testimony would have been, and in the absence of such information we cannot say that the failure to have the witness testify was error. Moreover, we refuse to second-guess defense counsel’s judgment and trial strategy in failing to call the witness. This contention is overruled.

Appellant complains of the prosecutor’s reference during jury argument to appellant’s failure to call as a witness the man who was with appellant when appellant was arrested. Contrary to appellant’s assertion, this was not a comment on the appellant’s failure to testify, but a comment on his failure to call a witness in his defense who, the record shows, was available to testify. This was a legitimate argument on the part of the State. See Beal v. State, 520 S.W.2d 907 (Tex.Cr.App.1975); Garcia v. State, 513 S.W.2d 559 (Tex.Cr.App.1974); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974).

Appellant complains of other comments made by the prosecutor during argument, but no objection was made to one of the comments, and the other comment was a proper plea for law enforcement. No error is shown.

Appellant raises three other grounds of error which we have reviewed, and which we conclude are wholly without merit and do not necessitate discussion.

The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Ex parte Curtis Lee STEWART.
    No. 59778.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 13, 1979.
    Carol S. Vance, Dist. Atty. and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

This is an application for a writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P.

On October 6, 1976, petitioner was convicted of the offense of robbery (Cause No. 247800). The jury found as “true” the two enhancement paragraphs in the indictment, and, accordingly, punishment was assessed at life imprisonment.

Petitioner filed an application for writ of habeas corpus, contending that his prior 1970 conviction for robbery by assault, alleged for enhancement purposes, was void since that conviction was based upon a fatally defective indictment. In Ex parte Canady, 563 S.W.2d 266 (Tex.Cr.App.1978), we held that an indictment for robbery under the old penal code was fundamentally defective for failure to describe the property allegedly taken as more than “corporeal personal property.” Such is the case in the 1970 indictment upon which petitioner was convicted and which conviction formed the basis of one of the enhancement paragraphs in petitioner’s 1976 robbery conviction (No. 247800). See also Mankin v. State, 451 S.W.2d 236 (Tex.Cr.App.1970).

Since this prior conviction is void as based upon a fatally defective indictment, it is unavailable for enhancement purposes as in the case of any void prior conviction. See Ex parte Rivers, 559 S.W.2d 659 (Tex. Cr.App.1977) and cases cited therein.

Under the provisions of V.T.C.A. Penal Code, Section 12.42(d), a life sentence was assessed by the court because the jury found appellant had previously been convicted of two felony offenses. With one valid prior conviction, punishment could have been assessed under V.T.C.A. Penal Code, Section 12.42(c), which provides for a range of punishment of life or a term of years not more than 99 or less than 15. Since we cannot presume what punishment the jury would have assessed under Section 12.42(c), supra, it follows that petitioner is entitled to a new trial. Bray v. State, 531 S.W.2d 633 (Tex.Cr.App.1976).

The relief is granted; the conviction for robbery in this cause (No. 247800) is set aside and the indictment is ordered dismissed.


author: PHILLIPS, Judge.

text:
    Ex parte Lyn DELBERT.
    No. 60922.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order denying relief after habeas corpus proceedings were instituted for the purpose of having the petitioner discharged for failure to provide a speedy trial as required by Article 32A.02, V.A.C.C.P. The petitioner is currently incarcerated in the Van Zandt County Jail under a charge for rape of a child.

In Ordunez v. Bean, 579 S.W.2d 911 (1979), this Court denied an application for writ of mandamus directing the trial judge in that case to set aside an indictment on the ground that the State had failed to comply with the requirements of the Speedy Trial Act. The petitioner in that case alleged that he had not been “given a trial within 120 days from the commencement of [the] criminal action against” him. See Chapter 32A, V.A.C.C.P. This is exactly petitioner’s contention in the instant case, except he has labeled his appeal as a petition for habeas corpus rather than an application for writ of mandamus as in Or-dunez.

In Ordunez we held that a defendant may not take an interlocutory appeal from a pretrial order denying a motion to dismiss because of an alleged violation of his right to a speedy trial. We stated:

. Appeal is available to the petitioner in the event of his conviction to test any asserted denial of his right to a speedy trial, both on a statutory and constitutional basis. ...

This Court will not allow its holding to deny interlocutory appeals from alleged violations of the Speedy Trial Act to be circumvented by changing the label of an appeal from an application for a writ of mandamus to that of a petition for habeas corpus.

Appellant’s appeal from an order denying habeas corpus relief is denied.

      . In my concurring and dissenting opinion in Ordunez, I dissented to the idea expressed above in that only allowing a direct appeal of alleged Speedy Trial Act violations after a conviction contradicts “the whole purpose of the Speedy Trial Act (Chapter 32A, V.A.C.C.P.) [which] is to remedy inexcusable delays with a dismissal of the charges with prejudice.” My reason for dissenting has not changed, but this opinion is written to conform to the majority view of this Court as expressed in Ordunez.

      . Had this Court meant to treat habeas corpus writ applications differently than mandamus actions, the application in Ordunez, supra, would have been construed as a habeas corpus action. See Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979); State v. Henson, 573 S.W.2d 548, 551 (Tex.Cr.App.1978, Odom, J., dissenting); Ex parte Clear, 573 S.W.2d 224 (Tex.Cr.App.1978); and Broggi v. Curry, 571 S.W.2d 940 (Tex.Cr.App. 1978).


text:
    Merrill A. PUTNAM, Appellant, v. The STATE of Texas, Appellee.
    No. 60977.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 13, 1979.

      Melvyn Carson Bruder, Dallas, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order of the trial court that the appellant be held without bail pending his appeal to this Court from a conviction for the offense of theft, in accordance with Article 44.04(c), V.A.C. C.P.

On December 16, 1978, the appellant was convicted of theft by a jury upon his plea of not guilty. Punishment was assessed by the jury at 15 years. On January 5, 1979, the appellant was sentenced. At that time he gave notice of appeal. Bond was set pending appeal at $20,000.00. On January 15, 1979, the appellant posted bond in the amount of $20,000.00, and he was released from custody pending his appeal.

On January 29,1979, the district attorney filed a motion pursuant to Article 44.04(c), V.A.C.C.P., to hold the appellant without bail pending his appeal. A hearing was held on said motion on February 2, 1979, after which the trial court sustained the district attorney’s motion and ordered the appellant held without bail pending his appeal.

Appellant’s first ground of error alleges that Article 44.04(c), supra, is viola-tive of Article III, Section 35 of the Texas Constitution in that the caption of the amendatory act did not give fair notice of the real subject matter of the amendatory act, nor did it give fair notice of the drastic changes in the right to bail pending appeal.

Prior to the 1977 amendment in question, Article 44.04 provided, in pertinent part, that any defendant convicted of a felony, whose punishment is assessed at a fine or confinement not to exceed 15 years, shall be entitled to bail pending appeal of his conviction. Article 44.04 was amended in 1977 by Senate Bill No. 52, 1977 Tex.Gen.Laws, ch. 234, at 636, the caption of which provided as follows:

BAIL PENDING APPEAL OF CRIMINAL CONVICTION
CHAPTER 234
S.B.No. 52
An Act relating to bail pending appeal or disposition of a motion for new trial; providing for appeal of certain judgments or orders; amending Article 44.-04, Code of Criminal Procedure, 1965; and declaring an emergency.

Article 44.04 was amended to read in pertinent part as follows:

Art. 44.04. Bond Pending Appeal * * ⅝: * * ⅝:
(c) Pending the appeal from any felony conviction where the punishment does not exceed 15 years confinement, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, .

As can be readily determined, the 1977 amendment to Article 44.04 altered the Article to the extent that in felony cases where the punishment assessed does not exceed 15 years’ confinement, a defendant may be denied bail pending appeal. Prior to the effective date of the 1977 amendment, no defendant whose punishment had been assessed at a fine or confinement not exceeding 15 years or both could be denied bail pending appeal.

Article III, Section 35 of the Texas Constitution provides in pertinent part:

But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.

Appellant alleges that the caption to the amendatory act amending Article 44.04, supra, failed to put the public or Legislature on notice of the changes enacted by the amendment in the said statute.

It is clear that Article III, Section 35 of the Texas Constitution is entitled to a liberal construction so as to uphold the caption or title of an act rather than giving the constitutional provision a strict construction which would lead to striking the act or a part thereof. Fletcher v. State, 439 S.W.2d 656 (Supreme Court of Texas); Castellano v. State, Tex.Cr.App., 458 S.W.2d 73. However, a “somewhat stricter rule of conformity of title to subject matter legislated on in the body of the act is applied to amendments than to titles of original acts.” White v. State, Tex.Cr.App., 440 S.W.2d 660. The Supreme Court of Texas held in Smith v. Davis, 426 S.W.2d 827, that

There is no constitutional requirement that the caption of an amendatory act set out exactly what changes were made in the amended act, Shannon v. Rogers, [159 Tex. 29, 314 S.W.2d 810], so long as the subject of the amendatory act is not “remote” from the subject of the original act, as in Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955). “It would be burdensome if not intolerable to require the title [or caption of an act] should be as full as the act itself. The word ‘title’ implies that no such requirement exists.” Central Education Agency v. Independent School District, 152 Tex. 56, 254 S.W.2d 357 (1953). It is not necessary that the caption of an amendatory bill apprise the ■reader of the precise effects of the body of the bill, so long as the general subject of the amending bill is disclosed. Compare Shannon v. Rogers, 159 Tex. 29, 314 S.W.2d 810 (1958) with Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955). . . .

Such a comparison discloses that the basic difference between the decisions in Shannon, supra, and in Board of Water Engineers, supra, is that in the former the caption of the amendatory act disclosed the general subject of the amending bill and the subject was not remote from that of the original act, whereas in the latter case the caption of the amendatory act failed to reveal that the agencies authorized by the original act to furnish water for municipalities were, for the first time, by the amendment prohibited from diverting water from the watersheds of two specified public streams. Because the added subject was not germane to the subject of the original act, and had not been announced in the caption, the amendatory act in the latter case was held invalid under Section 35 of Article III.

In the instant case the caption specifically named and identified the statute being amended, and the amendment in question was germane to the subject matter of the original act. Shannon v. Rogers, supra.

However, appellant relies on White v. State, supra, for the proposition that failing to mention the changes in Article 44.04(c) regarding denial of bail in the amendatory caption constituted error. Appellant’s reliance on White, supra, is misplaced. White was decided under another application of amendatory caption construction which goes beyond the wording of the amendatory title under attack in this case. In White, this Court held that

. when the title of an original act embraces matters covered by an amendment, the title or caption of the amendment need not state the subject of the law amended or specify the nature of the proposed amendment, .
A title that is not, however, content to state a purpose to amend a certain statute but proceeds to specify the particular field an amendment is to cover or states a purpose to make a certain change in the prior law, that is not merely descriptive of the matter to which the law relates, limits the amendatory act to the making of the change designated, and precludes any additional, contrary or different amendment. (Emphasis added)

An example of this was cited in Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98, which dealt with the title of an act amending old Article 1316, V.A.P.C. In Rotner, supra, this Court said:

. There was a material change in the penalty. The caption of the amendatory act restricted the purpose of the bill to a change in the definition of the offense. The framers of the bill thus informed the public and their fellow legislators that the purpose of the bill was to change the definition. In changing the penalty, the bill went beyond the express limitation of its caption, and, under section 35 of article 3 of our Constitution and authorities, this destroyed its effectiveness as a law. .

The caption to the 1967 act amending the Dangerous Drug Act, Article 726d, V.A. P.C., which we declared violated Article III, Section 35 of the Constitution under the above application of statutory construction, was worded as follows:

An act to include lysergic acid diethyla-mide and other hallucinogens in the list defining “dangerous drugs,” and specifying its possession to be an unlawful act; providing that the illegal sale, manufacture, or furnishing of any dangerous drug is unlawful; amending Subsection (a) of Section 2, Subsection (d) of Section 3 and Section 15, Chapter 425, Acts of the 56th Legislature, Regular Session, 1959, as amended (Article 726d, Vernon’s Texas Penal Code); and declaring an emergency-

The body of this act did include hallucinogens within the definition of dangerous drugs and made their possession an unlawful act, but at the same time it made substantial changes in the penalty provisions of the Dangerous Drug Act.

In White, supra, before analyzing the above caption we stated, “Further, it must be remembered that the title or caption in question chose to specify the field the amendment is to cover.” Because of that fact, we held

. The language of the 1967 act clearly imports that the act is to be amended in the stated particulars. No fair notice was given of any intent to make the drastic and radical changes in the penalty provisions that were made or to eliminate penalties for other offenses provided for by the act being amended, and which goes a long way in destroying the very effect of the stated policy and intent of the overall act. Article 762d, Sec. 1, V.A.P.C.

The caption in White, supra, thus limited itself to certain particulars and in changing the penalty provisions involved went beyond the caption’s restrictive purpose.

The amendatory title to Article 44.04 does not fall under the rationale of White, supra. Here the title was “content to state a purpose to amend a certain statute,” White, supra at 665, and disclosed the general subject of the amending bill, with the only statutory construction restriction that the subject of the amendatory act not be remote from the subject of the original act. Smith v. Davis, supra. The denial of bail included in Article 44.04(c) is certainly not “remote” from the subject of the original act which was, simply stated, bail pending appeal.

We hold that the caption of the amenda-tory act was sufficient to meet the requirements of Section 35, Article III, of the Constitution. Appellant’s first ground of error is overruled.

Appellant’s second ground of error alleges that Article 44.04(c), Y.A.C.C.P., is unconstitutional in that it is indefinite, vague, and uncertain with respect to the denial of bail pending appeal in cases where the punishment does not exceed 15 years’ confinement.

The 1977 amendment to Article 44.04 provides, in pertinent part, that a trial court may deny bail to a defendant otherwise entitled to bail pending appeal “if there then exists good cause to believe that the defendant ... is likely to commit another offense while on bail.” Article 44.-04(c), supra.

The appellant complains that because Article 44.04(c), supra, does not define “good cause to believe,” it does not give notice to the defendant of what he may need to establish to assure his right to remain on bail pending appeal. We find this complaint without merit.

As was stated in Boyce Motor Lines Incorporated v. U. S., 342 U.S. 337 at 340, 72 S.Ct. 329 at 331, 96 L.Ed. 367 (1952), “Most statutes must deal with untold and unforeseen variations in factual situations.” To require elaborate specificity as to what constitutes “good cause to believe” would undermine the efficacy of the statute. The ingenuity of humans would quickly learn ways to circumvent the specific proscriptions.

The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding. Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167 (1932).

Black’s Law Dictionary (Revised 4th Ed., 1968) defines “good cause” as “Substantial reason, one that affords a legal excuse. Legally sufficient ground or reason.” We find that the term “good cause to believe” as used by the Legislature does find “adequate interpretation in common usage and understanding.” Sproles v. Binford, supra. The failure to specifically elaborate what “good cause to believe” entails does not render this statute void for vagueness and indefiniteness.

Appellant’s attack on the term “good cause to believe” is too narrowly confined. Article 44.04(c), supra, limits this discretionary belief in that it must be grounded in evidence that the defendant “is likely to commit another offense while on bail.”

We hold that Article 44.04(c), supra, is not indefinite, vague, and uncertain with respect to the denial of bail pending appeal in cases where the punishment does not exceed 15 years’ confinement. Appellant’s second ground of error is overruled.

Appellant’s third and fourth grounds of error argue that the evidence was insufficient to show that appellant committed another offense while on bail and even if it was sufficient to show theft, evidence that appellant committed another offense while on bail does not satisfy the requirement of Article 44.04(c), supra, that the defendant may be denied bail if he is found likely to commit another offense while on bail (emphasis added).

The proof adduced at the hearing held upon the State’s motion showed that on December 21, 1978, the appellant purchased a diamond ring and a chain from Eva Sargent and that he paid for such items with a personal check in the amount of $1,609.13 and another personal check in the amount of $31.50. On January 3, 1979, the checks which the appellant had given to Eva Sargent on December 21, 1978, were returned to Mrs. Sargent by her bank with the notation “Returned Unpaid Account Closed: is undisputed that the appellant never redeemed the two checks from Mrs. Sargent. Further evidence showed that the account on which the two checks in question were drawn had been closed by the bank on October 12, 1978, because it had been overdrawn since September 26, 1978. Notice of the closing of the account was mailed to the defendant at the post office address which he furnished to the bank at the time the account was opened and which was still in use at the time of the hearing. The defendant presented no evidence. It

The evidence adduced in the hearing that the appellant did commit another offense while on bail far exceeds the statutory requirement that the court find only that he is likely to commit another offense while on bail, and we hold that this evidence fully supports the appellant’s denial of bail pending appeal. No abuse of discretion is shown by the trial court’s conclusion that the appellant is likely to commit another offense while on bail. Appellant’s third and fourth grounds of error are overruled.

The judgment is affirmed.

ODOM, J., concurs in the result.


text:
    Ex parte Carl Gene DEATON.
    No. 61136.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 13, 1979.
    Ronald R. Waldie, Dallas, for appellant.
    Henry Wade, Dist. Atty., Karen Chilton Beverly, Bradley K. Lollar and C. Wayne Huff, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an appeal from an order denying appellant relief made following a hearing in a habeas corpus proceeding in the trial court. In such hearing appellant sought unsuccessfully to have the trial court rescind its order requiring that his $15,000 appeal bond be a cash bond rather than an undertaking supported by sureties.

Appellant was found guilty by a jury on February 7, 1979, and his punishment was assessed at 10 years. On February 19, 1979 sentence was pronounced and at the conclusion of same the court stated “I am continuing the $15,000 bond for the purpose of appeal.” On March 12,1979 appellant’s motion for new trial was overruled. At this hearing the court noted that it had an affidavit of the surety to surrender the principal. The prosecutor asked the court to take into consideration in setting bail information he had received from the bailiff that appellant had made verbal threats toward the prosecutor. The court then ordered that it was “going to make this a $15,000 cash bond for appeal purposes.”

At the habeas corpus hearing on March 16, 1979 it was developed through testimony from appellant that he had been free on a $15,000 surety bond from the time of his arrest until the time that the court required a cash bond at the motion for new trial hearing, and that appellant could make another surety bond in that amount but that it was impossible for him to make a cash bond. Ted Ladinski, an employee of Triple A Bail Bonds in Denton, testified that appellant had been working in the Longview office of the same company and that he was prepared to make a surety bond for him in the amount of $15,000. Wayne Wilkins, the bailiff at appellant’s trial, overheard what he “would consider to be a threat” toward the prosecutor. Wilkins stated that appellant was “agitated at the time” when he stated that the prosecutor was not concerned with dispensing of justice and “that he wanted to see Mr. Robinson [prosecutor].”

Article 44.04, V.A.C.C.P. provides in pertinent part:

“(c) Pending the appeal from any felony conviction where the punishment does not exceed 15 years confinement, the trial court may deny bail and commit the defendant to custody if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail, permit the defendant to remain at large on the existing bail, or, if not then on bail, admit him to reasonable bail until his conviction becomes final. The court may impose reasonable conditions on bail pending the finality of his conviction. On a finding by the court on a preponderance of the evidence of a violation of a condition, the court may revoke the bail.
“(d) After conviction, either pending determination of any motion for new trial or pending final determination of the appeal, the court in which trial was had may increase or decrease the amount of bail, as it deems proper, either upon its own motion or the motion of the State or the defendant.”

There is no question but what the court has authority to increase or decrease the amount of bail pending appeal pursuant to Article 44.04(d), supra. This is not the issue presented herein. We are confronted with the question of whether the court can require cash bail pending appeal?

Article 17.02, V.A.C.C.P., “Definition of ‘bail bond’ ” provides:

“A ‘bail bond’ is a written undertaking entered into by the defendant and his sureties for the appearance of the principal therein before some court or magistrate to answer a criminal accusation; provided, however, that the defendant upon execution of such bail bond may deposit with the custodian of funds of the court in which the prosecution is pending current money of the United States in the amount of the bond in lieu of having sureties signing the same. Any cash funds deposited under this Article shall be receipted for by the officer receiving the same and shall be refunded to the defendant if and when the defendant complies with the conditions of his bond, and upon order of the court.”

In the Interpretative Commentary following Article 17.01, V.A.C.C.P. the Honorable W. A. Morrison makes the following observation concerning cash bail which was authorized for the first time in Article 17-02, supra:

“Members of the Committee were disturbed by cases where people of means who were capable of posting a cash bond, but who were away from home when arrested and were required under the existing statutes to pay a professional bondsman an exorbitant fee in order to make bail.”

Article 17.02, supra, provides that the defendant may deposit money in the amount of the bond in lieu of having sureties signing same. The language of the statute as well as the commentary regarding same makes it clear that the Legislature intended that a defendant be given the option or privilege under Article 17.02, supra, of posting cash in lieu of having sureties sign the bond. It does not grant to the court the authority to deny a defendant the right of posting a surety bond in a bailable case. The authority granted the court in Article 44.04, supra, to “impose reasonable conditions on bail pending the finality of his conviction” does not vest the court with the discretion to require a cash or surety bond to the exclusion of the other. The State appears to urge that since the court could deny bail pending appeal under Article 44-04(c), supra, (“if there then exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail”) it could use the requirement of cash bail to deny appellant an appeal bond. While the State is correct in urging that bail can be denied upon proof of the required conditions set forth in Article 44.-04(c), the requirement of cash bail cannot be used as a means to that end.

We hold that the trial court did not have authority to require appellant to have a cash bond pending appeal rather than a bond supported by sureties. In the absence of the required proof enabling the court to deny bail under Article 44.04(c), supra, the court shall set bail pending appeal in accordance with the statutes of this State and the requirements of this opinion.

It is so ordered.

      . In Ex Parte Briones, 563 S.W.2d 270 this Court held that the provisions of Article 44.-04(c), V.A.C.C.P. rather than Article 42.09, V.A. C.C.P., shall be applied to determine whether to grant or deny bail pending appeal.


author: DOUGLAS, Judge.

text:
    Ex parte John Wesley McKENZIE.
    No. 61309.
    Court of Criminal Appeals of Texas, En Banc.
    June 13, 1979.

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

DOUGLAS, Judge.

This is an application for post-conviction writ of habeas corpus filed pursuant to Article 11.07, V.A.G.C.P.

McKenzie was charged with a murder committed on July 14,1972. On August 11, 1972, a jury found McKenzie incompetent to stand trial and he was committed to the Rusk State Hospital. After being released from Rusk, the State again sought to try McKenzie. On May 28, 1974, a jury found McKenzie competent to stand trial. He was subsequently convicted of the murder and his punishment was assessed at twenty years.

McKenzie contends that the second competency trial did not meet the minimum requirements of due process because the jury charge contained a constitutionally inadequate definition of competency. The court instructed the jury that a person is competent to stand trial if. he “has sufficient mental capacity to know the nature, quality and consequences of his acts and to understand the difference between right and wrong.”

A charge to the jury on competency to stand trial should, ideally, focus on whether or not the accused has a “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Article 46.02, V.A.C.C.P. We have held that charges that focus upon whether the accused knew right from wrong, the M’Naghten rule, were inadequate to comply with due process. Ex parte Long, 564 S.W.2d 760 (Tex.Cr.App. 1978); Ex parte Hagans, 558 S.W.2d 457 (Tex.Cr.App.1977). However, we have also held that a charge which inquired if the accused could “make a rational defense to the charges against him” was constitutionally adequate. Corley v. State, Tex.Cr. App., 582 S.W.2d 815.

The instant charge focuses on the accused’s ability to know what he is doing and whether it is right or wrong. It does not lead the jury to consider whether McKenzie knew anything about the proceedings against him or whether McKenzie could communicate with his attorney to make a rational defense. These are the issues that the jury should have considered in determining McKenzie’s competence to stand trial. Since the charge did not deal with the proper issues, it is inadequate.

The charge was inadequate for a proper determination of his competence to stand trial. In Brandon v. State, Tex.Cr.App. (No. 59,348, delivered April 25, 1979), we held that where there had not been a constitutionally adequate competency hearing, the appropriate remedy would be to remand the case for further proceedings. Those proceedings should determine if it is possible to conduct a nunc pro tunc competency hearing and, if it is, to hold such a hearing following the present version of Article 46.02, V.A.C.C.P.

The case is remanded to the trial court to determine, if possible, whether McKenzie was competent at the time of the 1974 trial. If such a determination is possible, a competency hearing shall be held in accordance with Article 46.02, V.A.C.C.P.

It is so ordered.


text:
    Ex parte Jack Dean TARLTON.
    No. 61377.
    Court of Criminal Appeals of Texas, En Banc.
    June 13, 1979.
    Mary Anne Wiley, on appeal only, Lubbock, for appellant.
    John T. Montford, Dist. Atty., Lubbock, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P. Tarlton seeks certain good and flat time credits against his 1964 life sentence.

Tarlton was convicted on July 31,1964, in Cause Number 9502. He gave notice of appeal which was withdrawn on September 5, 1964. He was sent to the Texas Department of Corrections (TDC) on August 20, 1964, for a parole revocation arising from a 1960 conviction. TDC was not aware of the life sentence. Tarlton was re-paroled on November 14, 1970, and remained on parole until February 18, 1971, when his parole was again revoked. He discharged his 1960 sentence on October 21, 1971. Petitioner was arrested on June 16, 1978, and sent to TDC to begin serving his life sentence. TDC has credited Tarlton with time beginning on April 18, 1978.

The convicting court held a hearing at which the above facts were proved. The court also found

“That Defendant has not in any manner avoided or caused said commitment not to issue at its proper time.”

In Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976), we were confronted with an analogous situation. Esquivel had been given a life sentence in 1960 but TDC had not been informed of it. Between 1960 and 1973, Esquivel was convicted of three other felonies, sent to TDC and discharged each sentence. We observed that “absent an escape, a violation of parole or some fault on the part of the prisoner, said sentence must be continuous and the prisoner cannot be required to serve his sentence in installments.” We then granted Esquivel flat time credits since 1960 and good time credits for the periods he was actually in TDC.

The holding of Esquivel controls the instant case. Through no fault of Tarlton’s, TDC was not informed of his life sentence. Petitioner is entitled to flat time credit continuously from July 31, 1964. He is also entitled to any good time credits he was awarded while actually confined since July 31, 1964.

It is so ordered.


author:
DALLY, Judge.
      ROBERTS, Judge, CLINTON, Judge,

text:
    Billy Myrl CROSS, Jr. v. Don METCALFE, Judge.
    No. 61600.
    Court of Criminal Appeals of Texas, En Banc.
    June 13, 1979.
    Roberts, J., dissented and filed opinion in which Phillips, J., joined.
    Clinton, J., dissented to the order dismissing and filed opinion.
    James M. Murphy, Dallas, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   ORDER

DALLY, Judge.

This is an original proceeding in which the petitioner asks this Court to issue a writ of mandamus ordering the Hon. Don Met-calfe, Judge of Criminal District Court No. 2 of Dallas County to hear the petitioner’s motion for shock probation under Art. 42.-12, Sec. 3d, V.A.C.C.P.

The petitioner’s motion for leave to file his petition for writ of mandamus was improvidently granted, and the motion is hereby dismissed.

It is so ordered.

ROBERTS, Judge,

dissenting.

This is an original proceeding in which the petitioner asks this Court to issue a writ of mandamus. It appears that on July 10, 1976, the petitioner committed the offense of aggravated assault, and that he used a deadly weapon (a razor) during the commission of the offense. In 1977, the respondent judge’s court convicted the petitioner and sentenced him to three years’ confinement. He appealed, and this Court affirmed his conviction. After the mandate of this Court issued, it appears that the petitioner again was taken into custody and delivered to the Texas Department of Corrections, on February 16,1979. He filed a motion in the trial court requesting that the judge suspend further execution of the sentence and place him on probation, as is authorized by section 3e(a) of the Adult Probation, Parole, and Mandatory Supervision Law (V.A.C. C.P., Article 42.12); in the vernacular, he moved for “shock probation.” He also requested a hearing on the motion. The judge has denied the motion without holding a hearing. The petitioner asks this Court to order the judge to hold a hearing, or to consider the merits of the motion for shock probation without holding a hearing. In compliance with a per curiam order of this Court, the respondent judge has filed an answer setting forth his legal reasons for refusing to hold a hearing and for refusing to consider the merits of the motion. His reasons are discussed below.

As amended by the people on November 8, 1977, Article V, section 5 of the Texas Constitution gives this Court the power to issue the writ of mandamus in this kind of criminal law matter. Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App. 1979).

Fewer than 120 days having passed since the execution of the petitioner’s sentence actually began on (or about) February 16, 1979, the respondent trial judge’s court has jurisdiction to grant shock probation. Houlihan v. State, supra.

In his written order denying the petitioner’s motion, and in his answer filed in this Court, the respondent judge has stated that his denial of the petitioner’s motion for shock probation is required as a matter of law. In his view, the petitioner is not eligible for probation because of section 3f(a)(2) of the Adult Probation, Parole, and Mandatory Supervision Law (V.A.C.C.P., Article 42.12). This section provides that the trial court’s power to grant probation, without a jury’s recommendation, does not extend to a defendant who used or exhibited a deadly weapon.

The respondent judge’s view is faulty, because it does not take into account an important limitation on section 3f. Section 3f was added by 1977 Texas Acts, chapter 347, section 7 of which provides:

“This Act applies only to inmates sentenced to the Texas Department of Corrections for an offense committed on or after the effective date of this Act. Inmates sentenced for an offense committed prior to the effective date of this Act are governed by the law existing before the effective date, which is continued in effect for this purpose.”

The effective date of the act was August 29, 1977. Because the petitioner has been sentenced to the Texas Department of Corrections for an offense committed before its effective date, section 3f does not make him ineligible for probation.

The only stated reasons for refusing to consider the merits of the petitioner’s motion for shock probation were bottomed on the assumption that section 3f applied to the petitioner. This assumption clearly was wrong. This Court cannot be in doubt that it was wrong. The petitioner is entitled to have a decision on the merits of his motion.

The petitioner also has requested that this Court order the respondent judge to conduct a hearing on his motion. The respondent judge has answered that he had no legal duty to hold a hearing, noting that there is no provision for a hearing in section 3e of the Adult Probation, Parole, and Mandatory Supervision Law (V.A.C.C.P., Article 42.12). I agree. As the respondent’s answer implies, I do not think that we can infer from the silence of the statute a requirement that a hearing be held on every motion for shock probation. I am reluctant to hold that the Legislature had an intent, which it failed to manifest in the act, that inmates should be transported from the Texas Department of Corrections to the convicting courts for such hearings.

If there were a requirement of such a hearing, it would have to be imposed by some source outside the statute, such as guaranties of the state and federal constitutions. Although constitutional problems may lurk in this area, I cannot say that the constitutional guaranties require a hearing on every motion for shock probation.

Action on a motion for shock probation is taken after the conviction has become final. Punishment has been assessed and sentence has been pronounced. The sentence is fixed. Parts III and IV-A of the recent opinion in Greenholtz v. Inmates, - U.S. -, - - -, 99 S.Ct. 2100, 60 L.Ed.2d 668, 25 Crim.L. 3085, 3087-3088 (1979), make it very doubtful that there are due process rights in the decision of whether to grant shock probation. Yet there are some differences between Greenholtz and this case, notably that Greenholtz dealt with a decision of the executive branch, while shock probation is a decision of the judicial branch (albeit an administrative one).

Also, the guaranty of due course of law in Article I, section 13, of the Texas Constitution may provide greater protections than those required by the federal constitution. These protections may require notice of the evidence being considered and some opportunity to respond to it, short of a hearing.

But mandamus is a remedy that is appropriate to compel performance of a ministerial, or non-discretionary, act. There being no evidence before the Court to indicate that the respondent judge intends to consider any evidence, or to take any step, that would trigger such procedural questions, I would not hold that the petitioner has shown that a hearing is required. (This is not to say that a trial court may not hold a hearing if he thought it would be helpful. I would only say that a hearing may not be constitutionally mandated in every case, nor is it mandated by the statute.)

I am disturbed by the majority’s decision to dismiss the motion. The petitioner has brought us two requests for relief. On one request he has shown that he is entitled to relief. On both requests we have an opportunity to discuss matters on which the bench and bar need guidance. The Court declines to address either request, which seems to me to be an injustice to the petitioner and a disservice to the public.

I dissent.

PHILLIPS, J., joins.

CLINTON, Judge,

dissenting to order dismissing.

In accordance with the established rule, four judges voted to grant leave to file petition for writ of mandamus and the cause was submitted on oral argument to the Court en banc. Now without addressing the substantial issues presented, the majority says leave to file was “improvidently granted.” To this destruction of the “rule of four,” I emphatically dissent.

      . “For the purposes of this section, the jurisdiction of the courts in this state in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction of a felony shall continue for 120 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 120 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may, on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if such sentence is otherwise eligible for probation under this article and prior to the execution of such sentence, the defendant had never been incarcerated in a penitentiary serving a sentence for a felony and in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if the offense for which the defendant was sentenced was an offense other than criminal homicide, rape, or robbery.” Added by 1977 Texas Acts, chapter 306, section 1.

      . “(a) The provisions of Sections 3 and 3c of this Article do not apply:

      (2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during [the] immediate flight therefrom.

      .The petitioner presented an argument that the sentences of inmates to whom section 3f does apply are nonetheless eligible for shock probation under section 3e. Because the petitioner is not such an inmate, I do not consider this issue. In oral argument, the petitioner’s counsel said that he was not aware of the limitation on the applicability of section 3f.

      . The conviction may even have been affirmed after an appeal to this Court, as we held in Houlihan v. State, supra.

      . See Davenport v. State, 574 S.W.2d 73 (Tex. Cr.App.1978).


author: COLEMAN, Chief Justice.

text:
    DAHLSTROM CORPORATION, Appellant, v. Stanford MARTIN, Sr., et al., Appellees.
    No. 17309.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 1, 1979.
    Rehearing Denied April 12, 1979.

      Stayton, Maloney, Hearne & Babb, Douglass D. Hearne, Austin, for appellant.
    Miller, Gann & Perdue, Wm. Mac Gann, Houston, for appellees.
    Before COLEMAN, C. J., and WARREN and DOYLE, JJ.
   COLEMAN, Chief Justice.

This is a suit to recover damages for the wrongful excavation of dirt. Following a trial before the court, the landowners were awarded judgment against Dahlstrom Corporation for actual damages and punitive damages.

It is undisputed that employees of the Dahlstrom Corporation entered upon a tract owned by the appellees without permission and thereafter removed some 70,000 cubic yards of soil from the land. This soil was removed from the premises for use in the construction of a state highway. The Dahlstrom Corporation attacks the measure of damages on which the trial court based his award and the sufficiency of the evidence to support the amount of damages awarded.

Earth or sand in its original bed is a part of realty and as such cannot be a subject of conversion; but where it has been wrongfully severed and removed, it becomes personalty for the conversion of which an action will lie. These materials continue to be the property of the landowner after they are removed from their bed or place in the soil. Cage Bros. v. Whiteman, 139 Tex. 522, 163 S.W.2d 638 (1942).

One who willfully or in bad faith trespasses on the land of another and removes minerals is liable to the owner for their full value computed as of the time the trespasser converted them to his own use, or otherwise stated, the trespasser is liable for the enhanced value of the product when and where it is finally converted, without any deduction fór expenses incurred, or for any value he may have added to the mineral by his labor. Cage Bros. v. Whiteman, supra; 54 Am.Jur.2d Mines & Minerals, Sec. 254, p. 441.

On the other hand, one who inadvertently, or under a claim of right or a bona fide belief of title, encroaches upon the land of another and mines or removes minerals therefrom is generally held to be liable in damages only for the minerals removed, based upon their value in situ, that is, as they lay in the earth before being disturbed. 54 Am.Jur.2d Mines & Minerals, Sec. 253, p. 438.

There is evidence that Mrs. George I. Huffman, a real estate broker, had leased the land in question for rice farming, dry farming and grazing purposes for the owners, hereinafter referred to as Martins. She negotiated the leases, collected the rentals, paid the taxes' and accounted to the Martins for the proceeds. In September, 1974, she was approached by the Dahlstrom Corporation, who desired to lease the land for the purpose of removing top soil and fill dirt from the land in question. The evidence supports the conclusion that she agreed to assist them in securing such a lease from the Martins and that the Dahlstrom Corporation agreed to pay her for her efforts in this regard. She entered into negotiations with the Martins on September 30, 1974, at which time she sent them a contract for execution. This offer was not immediately accepted and negotiations between the Martins and Mrs. Huffman ensued. In answer to a question Mrs. Huffman informed the Martins that she was assisting the Dahlst-rom Corporation in securing a contract for the dirt and expected compensation to be paid by the Dahlstrom Corporation. The Martins agreed to the terms of a contract to sell soil she presented provided that Dahlst-rom would guarantee to excavate a minimum amount of dirt and would deposit in escrow the dollar value of the minimum guarantee. This counter-offer was sent to Mrs. Huffman by John S. Martin. Mrs. Huffman had previously dealt with Mrs. Della H. Martin. On December 17, 1974, Mrs. Huffman wrote Mrs. Della H. Martin a letter in which she asked her who John S. Martin was and informed her that she had forwarded the letter which she received in November to the Dahlstrom Corporation and that the Dahlstrom Corporation would get in touch with her.

Maurice Clark is a vice president of the Dahlstrom Corporation and was in charge of securing borrow sources for the State Highway 288 project in Brazoria County, Texas. He testified that he visited with various property owners and with Mrs. Huffman in securing borrow material. He drafted lease agreements with four property owners in connection with this project. Work was begun on the project in the latter part of 1973. He knew of the negotiations between Mrs. Huffman and the Martins, and knew that the Martins had agreed to the terms of the lease which he had prepared except that they desired that the money be placed in escrow. He and Mr. Jack Dahlstrom, his superior, visited with Mrs. Huffman about the negotiations and determined that since it would be about a year before they needed the dirt from that tract of land, the money should not be placed in escrow that far in advance. He did not know whether the Martins were ever informed of this fact. In December of 1974 Clark went to another project in the State of Mississippi without leaving anyone in charge of these negotiations. In March of 1975 while he was still in Mississippi he learned that no agreement had been reached with the Martins.

On November 24, 1975, an agent from the Dahlstrom Corporation wrote a letter to Mr. Martin enclosing a copy of an addendum to a lease agreement and requested that it be executed by the Martins. Since this agreement recited that it was an addition to an existing lease agreement between the Martins and the Dahlstrom Corporation, Mr. Martin immediately wrote back and called attention to the fact that no lease agreement had been executed.

The Dahlstrom Corporation had begun to excavate and remove soil from the Martins’ land in the latter part of August, 1975, and continued to remove this soil until December 23,1975. Both Mr. Dahlstrom, the president of the company, and Mr. Martin knew that the Martins had refused to execute a lease unless the money which would become due under the lease was first placed in escrow. After the decision not to place the money in escrow was made, no further negotiations occurred until after some 49,000 cubic yards of material had been removed from the Martin tract.

In December Mr. Covington was in charge of this operation on the part of the Dahlstrom operation. He learned that there was no lease in effect on the Martin land and called Mr. John S. Martin and told him that they had made a mistake and had begun the excavation of dirt from his property. He told Mr. Martin that as soon as he was able to determine the exact amount of dirt that had been excavated he would send him a check for that amount along with a new lease agreement. Mr. Covington testified that he had further conversations with Mr. Martin at which time he had the exact figures and that Mr. Martin agreed to accept payment at the rate of 25 cents per cubic foot for the soil excavated and to return a signed lease agreement authorizing the Dahlstrom Corporation to take an additional amount of the soil from their land. Mr. Martin denied that he made this agreement. During these negotiations excavation of the soil was continued by the Dahlstrom Corporation. Mr. Covington testified that he called Mr. Marton on December 4, 1975, and that during this conversation Mr. Martin authorized him to continue to remove dirt to the end of the month. Mr. Martin also denied that he authorized Mr. Covington to continue removing dirt. The proposed lease which was sent to the Martins by Mrs. Huffman provided that payment would be made for the dirt removed monthly. Mr. Covington explained the failure to make monthly payments by saying that he had not examined the proposed lease at the time the dirt was being removed and he did not realize that monthly payments were required.

The evidence supports an implied finding by the trial court'that the Dahlst-rom Corporation trespassed on the land of the Martins under such circumstances as to charge the Corporation with knowledge that it was invading the rights of the Martins. By reason of such a finding the Dahlstrom Corporation is in the position of a willful trespasser and is liable to the Martins for the full value of the material removed from the Martin land without any deduction for expenses incurred in excavating the soil. Cage Bros. v. Whiteman, supra; Kelvin Lumber & Supply Co. v. Cop per State Mining Co., 232 S.W. 858 (Tex. Civ.App. El Paso 1921, error dism.). See annotation: Oil or Minerals-Trespass Damages, 21 A.L.R.2d 380.

Darwin Allen Morrow testified as an expert as to the value of soil in the Brazoria County area. He had been engaged in the dirt contracting business since 1966. His business involves the obtaining of rights to remove dirt by paying a royalty, the removal of the dirt and the selling of same. He testified that he was generally familiar with the value of dirt as it is removed from a pit and loaded into trucks. He had examined the pit on the Martin property from which the Dahlstrom Corporation had removed soil. He testified that in measuring the yardage of an excavation there is a difference between pit yards and truck yards. That pit yards refers to the soil in place on the ground. Truck yards refers to the loose soil after excavation loaded into a truck. He estimated that there would be approximately 30% more truck yards removed from a tract of land than there would be pit yards on the land. Soil is sold both ways, but the generally accepted way of selling it locally is by the truck yard. He estimated that there was approximately 18,-841 truck yards or 14,057 pit yards of top soil removed from the Martin property. He testified that he sold top soil in that area for $5.00 a yard loaded on the truck. His cost would be from $3.75 to $4.00 per yard. He estimated that the cost of fill dirt loaded on the truck was $1.00 per truck yard and would sell for $1.25 per truck yard. Ordinarily when he sold dirt he delivered dirt in his own truck which involved additional expense and resulted in a different price. The prices he quoted were the same in 1975 and 1976. The fair cash market value of the dirt in place on the Martin tract between September 1975 and January of 1976 was 25 cents per cubic yard. He testified that he had never purchased as much as 70,000 cubic yards of fill dirt in that area and sold it at one time from one place. The largest haul and sell job that he had ever handled involved 10 to 12,000 cubic yards.

Mr. Martin testified that it cost the Dahlstrom Corporation 14.1 cents per cubic yard to excavate and load fill material from the Martin site between August of 1975 and December of 1975. There was evidence that the fair market value of soil in place at that time was 25 cents per cubic yard.

There is no opinion testimony as to the fair market value of soil in the quantity taken from the pit located on the Martin property. The trial court assessed damages against the Dahlstrom Corporation in the amount of $70,286.00 or $1.00 per pit yard of soil removed from the land. In Needham Piano & Organ Co. v. Hollingsworth, 91 Tex. 49, 40 S.W. 787 (1897) the court stated: “ . . . the value at which a stock of goods may be sold at retail, standing alone, in our opinion, does not afford any sufficient basis for determining fair market value. The market value is what the goods could have been promptly sold for in bulk or in convenient lots. Between the prices at which goods may be obtained in a market and at which they may be sold at retail in the same place intervene time, expense, and profit, which, in the absence of proof, are unknown quantities; and hence, if there had been no other testimony save that pointed out in the petition for the writ, we would be still of the opinion that there was no evidence to justify the verdict for the defendants to the amount recovered by them. But counsel for the defendants in error in argument have referred us to other parts of the transcript, which, in our opinion disclose legitimate evidence tending to show that the market value of the goods exceeded the amount recovered. . . . ”

There is no evidence that no market for soil in the amount taken by the Dahlstrom Corporation existed in Brazoria County at the time of the taking. The plaintiffs were not required to present evidence that such a market existed. It was their burden to produce evidence from which the trial court could determine the reasonable cash market value of soil when sold in convenient lots in Brazoria County at the time of the taking. There was testimony from which the trial court could have arrived at the selling price of soil in truck loads per cubic yard. It was within its discretion to determine that a cubic yard was a convenient lot for the sale of top soil. The testimony as to the cost of top soil at the pit, eliminating profit, was legitimate evidence tending to show that the market value of the soil exceeded the amount recovered.

The trial court also awarded exemplary damages. In support of the judgment we imply a finding that the trespass was willful since there is evidence to support such a finding. The chief executives of the Corporation knew, or should have known, that the Martins had not agreed to allow the Dahlstrom Corporation to enter upon their property for the purpose of removing soil. The plaintiffs are not seeking damages for the trespass. They have rested their case on allegations of conversion of soil. In Ogle v. Craig, 464 S.W.2d 95 (Tex.1971), an action for conversion of soy beans, the plaintiff recovered in the trial court both actual and exemplary damages. The Supreme Court stated as the applicable rule for determining whether damages could be recovered:

“The fact that an act is unlawful is not of itself ground for an award of exemplary or punitive damages. The act complained of not only must be unlawful but also must partake of a wanton and malicious nature, or, as sometimes stated, somewhat of a criminal or wanton nature, and an act will not be deemed malicious, and so warranting punitive damages, merely because it is unlawful or wrongful.” We find no evidence supporting a finding that the taking in this case was wanton or malicious in nature. Nor is there any evidence in this case of an element of fraud, malice, oppression, or evil intent. The trial court erred in awarding exemplary damages. Atlas Chemical Industries, Inc. v. M. P. Anderson, 524 S.W.2d 681 (Tex.1975).

At the time the agents of the Dahlstrom Corporation entered on the property and began removing soil they thought the land had been leased by the Dahlstrom Corporation. Mr. Clark, the vice president, knew or had possession of facts from which he should have known, that there was no lease with the Martins. Within a short period of time after he discovered that operations were proceeding to remove soil from the land he notified Mr. Martin of the situation and offered to pay for the soil removed at the price previously agreed upon with the Martins. While the excavation and removal of soil was not immediately stopped, Mr. Martin was advised that the Corporation desired to continue operations. Martin testified that he did not agree to permit the operation nor did he tell them to stop removing soil. Under these circumstances the continuance of operation was not that entire want of care which would raise the belief that the continued removal of soil was the result of a conscious indifference to the right or welfare of the Martins which would authorize the imposition of exemplary damages.

The Dahlstrom Corporation contends that under the evidence their defense of accord and satisfaction was established as a matter of law or that an implied finding that there was no accord and satisfaction was contrary to the great weight and preponderance of the evidence.

The defense of accord and satisfaction rests upon a new contract, express or implied, in which the parties agree to the discharge of the existing obligation by means of a lesser payment tendered and accepted. Industrial Life Insurance Co. v. Finley, 382 S.W.2d 100 (Tex.1964). There must be evidence that the parties agreed that the amount paid was in full satisfaction of the claim. Jenkins v. Henry C. Beck Co., 449 S.W.2d 454 (Tex.1969).

Mr. Covington, an agent of the Dahlstrom Corporation, testified that John S. Martin agreed that he would accept payment for the soil removed at the rate of 25 cents per yard and would sign a lease agreement which would permit the Corporation to remove additional amounts of the soil. A lease was drawn up and a check in the correct amount was executed and both instruments were mailed to Mr. Martin. Martin kept the check but did not cash it. Within a short period of time Martin notified the Dahlstrom Corporation that he would conduct future negotiations through his attorney and soon thereafter filed this suit. Mr. Martin owned an undivided one-half of the land from which the soil was removed. The lease was not prepared for his signature nor was he named a payee in the check. Mr. Martin testified that when he had a telephone conversation with Mr. Covington about the lease and the check he learned for the first time how much soil had been taken and the value the Dahlstrom Corporation put on the soil. Mr. Martin testified that in that conversation he did not indicate that he would accept the check as settlement for the materials taken. While there is a substantial dispute in the evidence, the trial court’s failure to find accord and satisfaction is not contrary to the great weight and preponderance of the evidence. A finding in favor of the Dahlst-rom Corporation on this issue is not required as a matter of law. An agreement to accept the check in full satisfaction of the claim for the soil removed was not established by undisputed evidence. See De Shazo v. Wool Growers Central Storage Co., 139 Tex. 143, 162 S.W.2d 401 (1942).

The appellant’s points relating to the award of actual damages are no evidence points since they complain of the action of the trial court in entering judgment. In considering no evidence points this court must review only the evidence favorable to the findings of the trial court on which the judgment is entered.

The trial court’s judgment, dated May 24, 1978, decreed that the Martins recover $70,-286.00 in actual damages and that such sum was to bear interest at the rate of 9% per annum from December 23, 1975. In making this award, the trial court has confused the rate of interest which is only applicable from and after the date of judgment, Tex. Rev.Civ.Stat.Ann. art. 5069-1.05, with the legal rate which is applicable when interest is awarded as an element of damages, Tex. Rev.Civ.Stat.Ann. art. 5069-1.03. Interest properly should have been allowed at the rate of 6% per annum from December 23, 1975, to May 24,1978. Thereafter the judgment would bear interest at the rate of 9% per annum.

The judgment will be modified by eliminating the award of exemplary damages and by modifying the interest award in accordance with this opinion, and as so modified the judgment will be affirmed.

On Motion for Rehearing

There was testimony that top soil sold for $5.00 a yard. The cost of preparation for sale was $3.75 to $4.00 per yard. After the cost of preparation is eliminated the court could conclude that the market value of soil was at least $1.00 per cubic yard. There was also evidence from the expert, who testified that he knew the value of dirt at the pit, that fill dirt would sell for $1.25 a truck yard. This testimony supports the fact finding as to value made by the trial judge.

The motion for rehearing is denied.


author: KEITH, Justice.

text:
    Alton W. WARNER, Appellant, v. CITY OF LUFKIN et al., Appellees.
    No. 8240.
    Court of Civil Appeals of Texas, Beaumont.
    March 1, 1979.
    Rehearing Denied March 22, 1979.

      J. T. Maroney, Jr., Lufkin, for appellant.
    Robert L. Flournoy, Lufkin, for appellees.
   KEITH, Justice.

This is an appeal brought under the Firemen’s and Policemen’s Civil Service Act, Tex.Rev.Civ.Stat.Ann. art. 1269m (196S), as amended (Supp.1978-79), to set aside the decision of the Fire Chief and Civil Service Commission of the City of Lufkin (hereinafter “Commission”) which indefinitely suspended Alton W. Warner as a fireman in the Lufkin Fire Department. The district court below in a trial de novo held that the decision of the Commission was supported by substantial evidence.

Plaintiff Warner appeals on two points of error. In his first point he complains that the trial court erred in rendering judgment that the decision of the Commission was supported by substantial evidence.

Tex.Rev.Civ.Stat.Ann. art. 1269m, § 18 (Supp.1978 — 79), provides that any fireman who is dissatisfied with a decision of the Civil Service Commission can appeal its decision to a district court where he is entitled to a trial de novo. Our Supreme Court in Fire Department of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666 (1949), defined the term “trial de novo” as meaning “a trial to determine only the issues of whether the agency’s ruling is free of the taint of any illegality and is reasonably supported by substantial evidence.” Accord, Firemen’s and Policemen’s Civil Service Commission of City of Port Arthur v. Hamman, 404 S.W.2d 308, 311 (Tex.1966), and cases therein cited.

To determine whether the order of the Commission is supported by substantial evidence, the following standard of review is used by the reviewing court: Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029-30 (1942).

“[T]he court will not undertake to put itself in the position of the agency, and determine the wisdom or advisability of the particular ruling or order in question, but will sustain the action of the agency so long as its conclusions are reasonably supported by substantial evidence. . [T]he issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without regard to the facts. ... If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.”

When an appeal is governed by the substantial evidence rule, the order of an administrative body is presumed to be valid, and the party seeking to set it aside has the burden of proving that the order is not reasonably supported by substantial evidence. Richardson v. City of Pasadena, 513 S.W.2d 1, 3 (Tex.1974); City of San Antonio v. Texas Water Commission, 407 S.W.2d 752, 758 (Tex.1966). The existence of substantial evidence to support such an order must be determined from the entire record as made in the trial court. City of Carrollton v. Keeling, 560 S.W.2d 488, 490 (Tex. Civ.App.—Dallas 1977, writ ref’d n. r. e.). Any conflict in the evidence must be resolved in favor of the agency’s decision. Richardson v. City of Pasadena, supra at 3.

The Commission found that plaintiff had been insubordinate to higher officers, been discourteous to fellow officers and employees; conducted himself in a manner unbecoming a fireman, neglected his duty, refused to obey orders, refused to follow departmental policy, and been absent without leave in violation of the Civil Service Rules of the City of Lufkin. We conclude from a study of the record before us that there was substantial evidence to support this finding.

The record shows that plaintiff was to appear for duty, i. e., an emergency medical training course, on January 13, 1977, at 1:00 p. m. and that he did not appear until 2:30 p. m. in violation of his captain’s orders. And, when he was questioned about his tardiness by his chief, he replied: “It’s either a misunderstanding or Captain Pu-ryear is a bald-faced liar.”

The record shows that on February 18, 1977, when Captain Puryear questioned plaintiff about an injury report that he had turned in, plaintiff answered that he did not want to talk about it, that it was his back, and nobody’s business. Then, plaintiff took the report out of the captain’s hands, tore it into several pieces, and threw the pieces on the floor, somehow causing other papers to fall on the floor also. When the captain told him to “Clean up your mess,” plaintiff picked up the torn pieces of paper but left the other papers on the floor. He then told the captain, “[Tjhat’s your mess. You pick it up,” leaving the remainder of the papers for the captain to pick up himself. Point one is overruled.

In his second point, plaintiff contends that the trial court erred in holding that the decision of the Commission was supported by substantial evidence because no transcript of the proceedings before the Commission was presented to the trial court for consideration in violation of Tex.Rev. Civ.Stat.Ann. art. 1269m, § 17 (Supp.1978— 79).

Plaintiff contends that because Section 17 was amended to provide that “[t]he Commission shall maintain a permanent public record of all proceedings with copies available at cost,” a transcript of the proceedings should have been presented to the trial court for its consideration. We disagree.

This amended version of Section 17 did not become effective until August of 1977. Therefore, it is not applicable to the case before us because the Commission hearing was held on March 8, 1977.

Even if this provision were applicable to our case, we do not believe that it requires that the commission record be used at a trial de novo. This provision merely requires that a record be kept as a permanent public record. It does not alter the law as set out in Railroad Commission v. Shell Oil Company, supra:

“In Texas, in all trials contesting the validity of an order, rule, or regulation of an administrative agency, the trial is not for the purpose of determining whether the agency actually heard sufficient evidence to support its orders, but whether at the time such order was entered by the agency there then existed sufficient facts to justify the same. Whether the agency heard sufficient evidence is not material. In fact, the evidence heard by the agency is not per se admissible upon the trial in the district court.” (161 S.W.2d at 1030)

Accord, Richardson v. City of Pasadena, supra (513 S.W.2d at 4). See also City of Carrollton v. Keeling, supra (560 S.W.2d at 490) (case heard on appeal after amended §17 became effective). Point two is overruled.

Finding no reversible error, we affirm the judgment of the trial court.

AFFIRMED.