author: PHILLIPS, Judge. ONION, Presiding Judge.

text:
    Phillip Nolan WARD, Appellant, v. The STATE of Texas, Appellee.
    No. 57762.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 21, 1979.
    On Rehearing June 6, 1979.

      Scott E. Segall, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and Judy Sanders, Leo B. Garcia, Asst. Dist. Attys., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
    Before ONION, P. J., and PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from three convictions for credit card abuse. See V.T.C.A., Penal Code, Section 32.31(b)(1)(A). The punishment was assessed at 10 years’ imprisonment for each offense.

In two grounds of error appellant complains of the introduction of evidence concerning an extraneous offense and the State’s presentation of argument to the jury at the punishment stage based on the extraneous offense. Appellant’s complaint centers on the testimony of James Thomas and R. B. Mussey, the owners of the credit cards which were the subject of abuse. James Thomas testified that while staying in a motor hotel in El Paso on October 29, 1976, his room was burglarized and his clothes and billfold were taken. He testified that numerous credit cards in his billfold were missing. Nobody was identified as the burglar since the witness was sleeping during the course of the burglary. Thomas further testified that he had never seen the appellant before, never gave him permission to use his credit card on October 30, 1976, to buy shoes, and never gave anyone permission to use his credit card. Witness Mussey testified that he was staying in El Paso on the evening of October 29, 1976, when his room at the Royal Inn was burglarized and his billfold and wife’s purse were taken. He testified that he made no purchases with his credit card on October 30, 1976, and had never seen the appellant before. Both witnesses testified that signatures on credit card receipts for the purchase of goods were not theirs or that of any authorized signatory.

The appellant filed a motion in limine to prevent the above-referenced testimony from being introduced in the course of the trial, but said motion was overruled by the trial court during pretrial proceedings on the grounds that such evidence was “res gestae.” Appellant’s trial objection to the testimony of Thomas was overruled for the same reason. Appellant’s trial objection to the testimony of Mussey was overruled without reason. Appellant further filed a motion for mistrial based on the complained of testimony which was overruled.

Appellant correctly notes that the elements of credit card abuse were amply established without any need to present evidence of the two burglaries testified to. Upon a close reading of this Court’s decisions in Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.), and Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.), we must conclude that appellant’s contention is meritorious and presents reversible error. The cases cited above, as well as the authorities cited within them, set forth the proposition that evidence of extraneous offenses should not be introduced unless and until it is shown that the defendant was the perpetrator of such offenses. Even then, the evidence is inadmissible unless it falls within one of the exceptions noted in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.). The language of Albrecht, supra, strongly implies that the rules discussed therein concerning the admissibility of extraneous offenses rest on the premise that the evidence shows the accused to have committed the extraneous offense. However, the other cases discussed involve situations where the evidence of the extraneous offense was introduced, but there was no evidence connecting the defendant to the commission of the extraneous offense. In Landers, supra, the appellant’s conviction was reversed because of the admission of a check that was similar to the check which provided the basis for Landers’ prosecution for passing a forged instrument. In Eanes, supra, the defendant’s assault conviction was reversed because of the testimony of the victim’s brother concerning his return to the scene of the altercation and finding his brother’s damaged pickup truck. On cross-examination he admitted that he was not saying the defendant damaged the pickup truck.

The State contends that the testimony on the burglaries on the night prior to the offenses involved here was part of the res gestae of the offenses and was admissible under the authority of Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.). However, as stated in Simmons, when the evidence of an extraneous offense is “so interconnected with the commission of the instant offense [that it] cannot be separated, [it] is admissible as res gestae to show the context in which the murder occurred.” Id. at 473. Simmons refers back to Albrecht, supra, as authority for that proposition. In discussing the res gestae exception to the rule against the introduction of extraneous offenses, this Court said evidence of extraneous offenses was admissible

(1) To show the context in which the criminal act occurred — what has been termed the “res gestae” — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. [Footnote omitted] .

Id. at 100.

The evidence of the burglaries introduced in appellant’s prosecution did not possess the “immediacy” required under Albrecht to satisfy the “res gestae” exception.

The State further contends that the introduction of this evidence was necessary in order to explain how the appellant obtained possession of the credit cards and thereby avoid confusion to the jury. Unfortunately, it is the introduction of extraneous offenses that causes confusion. Further, how an individual attains access to credit cards he abuses under the terms of V.T.C.A., Penal Code, Section 32.31(b)(1)(A) is not an element of the offense. The evidence clearly established that the credit cards used by the appellant were not issued to him, but issued to James Thomas and R. B. Mussey.

The State further argues that the evidence of the extraneous offenses was relevant to the element of “effective consent” and the lack thereof. However, the direct testimony of both James Thomas and R. B. Mussey clearly established that the appellant never had their permission to use the credit cards. In addition, such a contention by the State seems to imply that it was their purpose to tie the appellant into the commission of the extraneous offenses since it was his use of the credit cards without the effective consent of the owner that was a necessary element of proof for the State.

Although the State did introduce a prior final felony conviction of the appellant at the punishment stage, we cannot conclude that the introduction of the evidence concerning extraneous offenses discussed above was harmless since the maximum permissible penalty was assessed on each offense.

For the foregoing reasons, the judgment of conviction is reversed and the cause remanded.

Before the Court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

On original submission three convictions for credit card abuse [V.T.C.A., Penal Code, § 32.31(b)(1)(A)], wherein the punishment was assessed at ten (10) years’ imprisonment for each offense, was reversed because of the admission of extraneous offenses.

On rehearing the State contends the evidence complained of was so interwoven with the offenses charged that it was admissible. The three count indictment alleged in the first and second counts that appellant used a BankAmericard credit card belonging to R. B. Mussey to obtain property of Marianne Gettinger and Hudnel Jones with knowledge that such credit card had not been issued to him and was not used with the effective consent of the cardholder. The third count alleged use of the BankAmericard credit card of James Thomas under the same circumstances to obtain property of Willie Reveles. The offenses were alleged to have occurred on or about October 30, 1976.

It is clear that the State was required to prove beyond a reasonable doubt the use of the credit cards of Mussey and Thomas was without their effective consent on October 30, 1976. See V.T.C.A., Penal Code, § 32.31(b)(1)(A). To so prove the lack of consent the State called Mussey and Thomas as witnesses. To explain their lack of consent they testified that sometime on the night of October 29th and the morning of October 30th someone entered their rooms at different motels in El Paso and took their billfolds containing the BankAm-ericard credit cards. The appellant argues that such testimony improperly injected two extraneous burglary offenses into evidence over objection to his prejudice. He contends that the witnesses could have stated their lack of consent and simply explained their credit cards were missing on a certain date or related simply that their credit cards were taken illegally without further details. While this could have been done, we do not conclude that the witnesses were required to limit the explanation of their lack of consent because extraneous offenses were involved in that explanation. Here credit cards were taken in separate burglaries during the night or early morning and used by the appellant to purchase certain items the next day, in one situation as early as 10 a. m.

It is well established that where an offense is one continuous transaction or where another offense is part of the case on trial or so closely interwoven with the case on trial, proof of all facts relating to the transaction or other offense is proper as part of the res gestae of the offense charged. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Smallwood v. State, 464 S.W.2d 846 (Tex.Cr.App.1971). See and cf. Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974), cert. denied 419 U.S. 829, 95 S.Ct. 51, 42 L.Ed.2d 54. It has been held that facts showing commission of a crime other than one directly charged, if part of res gestae and aiding in development of the transaction, are admissible. Travelstead v. State, 105 Tex.Cr.R. 101, 287 S.W. 53 (1926). In Salazar v. State, 137 Tex.Cr.R. 448, 131 S.W.2d 761 (1939), it was held that where two or more offenses are so blended or connected with one another that they form an indivisible transaction, evidence of commission of any or all of them is admissible on the trial for any offense which is itself a detail of the whole criminal scheme. In Outlaw v. State, 125 Tex.Cr.R. 636, 69 S.W.2d 120 (1934), it was held that where several crimes are intermixed evidence of any or all is admissible against a defendant for any offense which is itself a detail of the whole criminal scheme. In Rios v. State, supra, it was held that the defendant’s activities on March 25th in offering to sell heroin to an undercover officer was part of the res gestae of the actual sale of heroin on the following day and was thus admissible on the defendant’s trial for sale even if the action on March 25th constituted a separate offense. In Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App.1974), a prosecution for assault with intent to murder a police officer, it was held that proof the defendant and his companion had committed an attempted robbery prior to flight during which the alleged assault on a police officer was committed was admissible as part of res gestae. In Tillman v. State, 88 Tex.Cr.R. 10, 225 S.W. 165 (1920), it was held the securing of whiskey by the defendant, a bell boy in a hotel, for H., a guest, was admissible in a prosecution for theft of money from H.’s room since it was so intimately connected with the alleged transaction as to be a part of it. See also Warden v. State, 366 S.W.2d 786 (Tex.Cr.App.1963), cert. denied 375 U.S. 886, 84 S.Ct. 162, 11 L.Ed.2d 116.

The lack of consent being an essential element in each of the three counts of the indictment, the State’s witnesses Mus-sey and Thomas were fully entitled to explain their lack of consent in a credit card abuse case even if it involved an extraneous offense or offenses, and further because it formed, under the particular circumstances of the case, a part of the res gestae of the offenses charged and was so interconnected and interwoven to be a part of the transactions alleged. Certainly if the appellant was being tried for burglary the fact that he possessed and used a credit card taken in said burglary the very next day would be admissible in evidence.

Appellant argues that the evidence does not establish that he is the perpetrator of the burglary offenses since the victims did not see anyone enter their motel rooms and that without such proof the extraneous offenses were inadmissible. He cites Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.1974), and Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.1977). Appellant overlooks the well-established proposition that the recent unexplained possession of all or any part of the items taken in a burglary is sufficient to sustain a conviction for burglary. Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747 (1958); Adame v. State, 372 S.W.2d 545 (Tex.Cr.App.1963); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974); Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976); Texas Digest, Vol. 6A, Burglary, and cases there cited.

The proof in the instant case that the appellant was in possession the very next day of the credit cards taken in the burglaries was sufficient to show he was the perpetrator of the extraneous offenses and justified the admission of evidence of the burglaries on that score. Appellant’s contention is overruled.

In a second ground of error appellant contends the prosecutor committed reversible error by asking the jury at the penalty stage of the trial to consider the extraneous offenses in assessing punishment.

The prosecutor, noting that appellant’s counsel had argued that only $150.00 had been taken by use of the credit cards, stated, “. . . You heard Mr. Mussey say that he had a lot more money stolen . ” The objection that the prosecutor was arguing punishment based on collateral offenses was immediately sustained. When the prosecutor continued his argument, he noted that appellant’s counsel had argued that only the merchants had been hurt and then stated, “I submit to you I don’t think just the merchants were hurt in this case.” There was no objection to this argument, and it was not continued by the prosecutor. While it is improper to request punishment to be assessed upon collateral offenses, Klueppel v. State, 505 S.W.2d 572 (Tex.Cr.App.1974), we observe that first the prosecutor never completed his sentence in the first complained-of argument, the objection was sustained and no further relief was requested. We further note there was no objection to the second complained-of argument. Under the circumstances, no error is preserved for review, and we do not conclude that fundamental error is presented. Appellant’s contention is overruled.

The State’s motion for rehearing is granted, the judgment of reversal is set aside and the judgment is affirmed.

ROBERTS, J., concurs.

PHILLIPS, J., dissents for reasons stated in original opinion.

CLINTON, J., dissents.


source: Caselaw Access Project

author: W. C. DAVIS, Judge. ROBERTS, Judge,

license: Public Domain

text:
    Moses Lopez GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 59621.
    Court of Criminal Appeals of Texas, En Banc.
    April 11, 1979.
    Rehearing Denied June 6, 1979.

      Marvin 0. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Michael C. Kuhn, Ron G. Woods, and R. P. Cornelius, Asst. Dist. Attys., Houston, and Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. The jury answered affirmatively the special issues submitted under Article 37.071, Vernon’s Ann.C.C.P., and accordingly, the punishment was assessed at death.

The sufficiency of the evidence at either the guilt-innocence or punishment phases of the trial is not challenged. The record reflects that in the early morning hours of September 26, 1974, appellant and Larry Johns entered a 7-11 convenience store in Houston. Connie Wilson and the deceased, David Lewis, were store attendants, working the night shift. The record further reflects that appellant threatened the two store attendants with a gun, and took them to a back storeroom where he forced them to lie face down on the floor. During this time, Larry Johns emptied the cash register. Just before appellant and Johns left the store, appellant fired two shots at the store attendants as they lay on the floor; one shot struck the deceased in the head, causing his death, and the other shot went into a door just above Wilson’s head. During the course of the robbery, John Harold, the night supervisor for the 7-11, entered the store and was also threatened with a pistol by appellant.

Appellant did not testify in his own behalf at either phase of the trial.

In his first ground of error, appellant contends that the trial court erred in failing to grant his motion to suppress. Appellant filed his motion to suppress a written confession and an oral statement, both made by him while in police custody. After a hearing, the trial court denied the motion and ruled both admissible. However, the record reflects that neither the written or the oral statement was offered into evidence by the State at trial. Therefore, we must assume that appellant .now complains of the admission into evidence of a pistol which was found as a result of the oral statement made by appellant.

The record reflects that shortly after the offense was committed appellant and Larry Johns returned to their apartments, gathered together their possessions and left in appellant’s car with Cindy Doris, Johns’ girl friend. Doris testified that they were heading north to appellant’s sister’s house in Michigan or Minnesota.

At the hearing on the motion to suppress, Department of Public Safety Trooper Howard Alexander testified that he received a report of an automobile accident in Ellis County at about 9:50 a. m. on September 26th. He arrived at the scene a short time later and found appellant, Johns and Doris at the scene of this one-car accident. He testified that he asked who had been driving the car, to which appellant responded that he had been. Alexander stated that both appellant and Johns appeared to be intoxicated at the scene. The three were taken to the nearby Ennis hospital. At the hospital, Alexander asked appellant whether he would submit to a blood test, which appellant did. Alexander testified that when appellant learned that he might be arrested for DWI he told the officer that he was not driving after all. At this time Johns admitted driving, and stated that he did not have a driver’s license.

Officer Alexander left the hospital and returned to his office to make a report. He then went to a wrecker yard in Ferris, where the wrecked car had been towed, and searched part of the contents of the automobile. He stated that he and Ferris Police Chief Matthews found a baggie of marihuana inside a partially open suitcase in the car. They also observed radios, stereo receivers, stereo speakers and assorted other items in the back of the wrecked station wagon. Alexander then returned to his office where he issued citations to appellant for the offenses of possession of marihuana and permitting an unlicensed driver to operate a motor vehicle. Alexander testified that at this time he gave appellant his full Miranda warnings and then placed him in the Ennis jail.

Wayne McCollum, Sheriff of Ellis County, testified that appellant was in his custody on'September 27th. He stated that his records reflected that appellant had been taken before a magistrate at 8:30 a. m. on that date. Sheriff McCollum testified that his office had received a teletype from Houston placing a “hold” on appellant. He stated:

“A. We got a teletype from Houston placing a hold on the young man and I just asked him did he know what the hold was for and he said for armed robbery and then something about the wreck. And he told me that — that his gun was hid in some grass there where the car had the accident.
“Q. [Defense counsel]: He told you that without any prompting from you?
“A. I had no idea knowing anything about it.
“Q. You merely asked him what the hold was for when you got the message?
“A. That’s right.
“Q. And he said it was for armed rob- • bery and ‘I’ll show you where the gun is’?
“A. Yes, sir.
“Q. Did you ask him any questions? “A. Then I took him before the Justice of the Peace, had him arraigned again.
“Q. Sir, I asked you did you ask him any questions?
“A. Oh, I couldn’t recall offhand whether — it was just a conversation in the jail.
“Q. Did he volunteer any other information to you that you recall?
“A. Not that I recall, sir.”

Sheriff McCollum testified that he immediately took appellant before a magistrate, where appellant was arraigned again. Appellant then led the sheriff and a deputy to the site of the automobile accident where the pistol had been left.

Upon examination by the State, the prosecutor asked Sheriff McCollum:

“Q. Where was the weapon found?
“A. In some weeds down in a ditch embankment.
“Q. Did the defendant show you where it was?
“A. Yes, sir.
“Q. Did you have any idea where it was before then?
“A. I didn’t even know where the automobile had the wreck.
“Q. Do (sic) you know that there was a weapon before this defendant told you?
“A. No, sir, I had no idea.”

At no time did appellant present any evidence whatsoever to controvert the testimony by the witnesses on this matter.

Appellant now appears to contend that his oral statement to Sheriff McCollum was inadmissible and that, as a result, the fruits of that statement, i. e., the pistol, were also inadmissible. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We hold that appellant’s oral statement to Sheriff McCollum was admissible at trial and was not involuntary nor taken in violation of Miranda; therefore, the pistol obtained as a result of it was properly admitted.

Article 38.22, 1(e), Vernon’s Ann.C.C.P., in effect at the time of trial, provided that:

“1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible if:
******
“(e) It be made orally and the defendant makes a statement of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”

However, in spite of the language of our statute, it is clear that before any statement by the accused, made while in custody and as a result of interrogation, is admissible against the accused, then it must be shown to have been voluntarily made, and taken in compliance of Miranda v. Arizona, supra. As we stated in Ochoa v. State, 573 S.W.2d 796 (Tex.Cr.App.1978):

“A confession, in order to meet constitutional standards, must be both voluntary and taken in compliance with Miranda.
If it meets one requirement but not the other, it is still inadmissible. Miranda imposes rigid requirements in order to insure the voluntariness of a confession, and these requirements must themselves be satisfied in order for a confession to be admissible.”

If we assume that appellant’s statement to Sheriff McCollum was a confession, and if we assume, without so holding, that the statement was made in response to custodial interrogation, we nevertheless hold it admissible.

The voluntariness of the statement is demonstrated by the fact that the evidence shows that appellant volunteered the information about the pistol; it is uncontrovert-ed that a statement from appellant concerning any details of the offense for which the “hold” was placed on him, was completely unsolicited by the sheriff. Further, once he made the statement about the pistol and its location, appellant was again taken before a magistrate where he was, for the third time, advised of his rights in relation to a criminal charge. After being so warned, appellant persisted in his desire to show the officers the location of the pistol. Thus, from a totality of the circumstances, we conclude that appellant’s statement was voluntarily made. See Article 38.21, Vernon’s Ann.C.C.P.; see Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977).

Further, in compliance with Miranda v. Arizona, supra, appellant had been warned of his right against self-incrimination and his right to counsel, once prior to his incarceration less than twenty-four hours before he made the statement, and once less than an hour before he volunteered the statement to Sheriff McCollum. Further, immediately after he made the statement, he was again taken before a magistrate and again warned of his rights as to that offense. Therefore, after being given his Miranda warnings three times in close proximity, appellant nevertheless persisted in taking the officers to the location of the pistol. Under the totality of these circumstances, it is clear that appellant knowingly and voluntarily waived the rights assured him by Miranda v. Arizona, supra. See Castro v. State, 562 S.W.2d 252 (Tex.Cr.App.1978); Estes v. State, 507 S.W.2d 216 (Tex.Cr.App.1974); Hughes v. State, 506 S.W.2d 625 (Tex.Cr.App.1974); Walker v. State, 501 S.W.2d 912 (Tex.Cr.App.1973).

Therefore, we hold that the State met its burden of showing that the statement was voluntarily made and that appellant made a knowing and intelligent waiver of his Miranda rights before he made the statement and before he took the officers to the location of the pistol. Since we have held that the statement meets constitutional standards for admissibility, and since, in accordance with Article 38.22, the oral statement was an assertion of a fact which was found to be true and which led to the discovery of evidence which conduced to establish his guilt, the statement would have been admissible at appellant’s trial. Since the statement would have been admissible, the fruits of it, i. e., the pistol, were likewise admissible. See Wong Sun v. United States, supra.

Appellant, in this ground of error, also complains of, but does not discuss the admission of a statement made by appellant in custody during his return from Ennis to Houston. In this statement, appellant told the Houston officers that the stereo speakers in his wrecked automobile were obtained in a burglary he committed “out on the Gulf Freeway.” However, the record does not reflect that this statement was ever admitted into evidence at trial. Appellant also contends that the fruits of this statement should have also been suppressed. However, the record clearly reflects that there were no fruits of this statement. The items of property from appellant’s wrecked automobile had already been seized prior to appellant’s statement. Further, appellant did not challenge the legality of the search of his automobile and the subsequent seizure of property in either his motion to suppress or at trial wherein stereo speakers found in his car were introduced into evidence. Thus, appellant has shown no error.

This first ground of error is overruled.

In his second ground of error, appellant contends that the trial court committed fundamental error in charging the jury on the law of intoxication at the punishment phase of the trial. The record reflects that when the court submitted to the jury the special issues as required by Article 37.071, Vernon’s Ann.C.C.P., it also charged the jury that voluntary intoxication could be considered in mitigation of punishment. See V.T.C.A. Penal Code, Sec. 8.04. The record reflects no objection to the charge; the acquiescence in and absence of an objection to the charge waives all but fundamental error. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978); Rummel v. State, 509 S.W.2d 630 (Tex.Cr.App.1974). The charge in the instant case was clearly not fundamentally erroneous. The instruction to the jury on intoxication was very favorable to appellant, since it permitted the jury to mitigate punishment in answering the special issues. This ground of error is overruled.

In his third ground of error, appellant contends that one prospective juror, Lucille Jetter, was improperly excused in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 80 L.Ed.2d 776 (1968). In Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), we held that it is unnecessary to consider the Witherspoon question where the prospective juror was disqualified under Sec. 12.31(b), V.T.C.A. Penal Code. Accord Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977); Hughes v. State, 562 S.W.2d 857 (Tex.Cr.App.1978); Bodde v. State, 568 S.W.2d 344 (Tex.Cr.App.1978). Section 12.31(b) provides:

“Prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. A prospective juror shall be disqualified from serving as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

The record reflects that during voir dire examination prospective juror Lucille Jetter expressed her general opposition to the death penalty. During the examination, the prosecutor asked:

“Q. Do you think your deep-seated feelings that we are talking about, that would make it where you would not be able to give the death penalty would affect your decision as to whether or not to answer the questions yes or no?
“A. Yes.
“Q. And you think, therefore, since you don’t feel like you could give the death penalty, you would answer the questions no so he would get life.
“A. Yes.”

Thus, it is clear that Jetter’s answer disqualified her under Section 12.31(b), supra, and that she was properly excused by the trial court. Although we do not need to reach the issue of Jetter’s disqualification under Witherspoon in order to overrule appellant’s ground of error, the record does reflect that she was also disqualified under that doctrine.

At the beginning of the voir dire examination, Jetter expressed her reservations about the imposition of the death penalty generally. During questioning by the prosecutor, she then stated that she could not, herself, answer the special issues in a way so that the death penalty could be imposed. Upon examination by the defense, Jetter wavered in her position and stated that under some facts she might be able to join with a jury in assessing the death penalty. Upon further examination by the State, she reaffirmed that she could not vote so as to impose the death penalty. She stated:

“A. That is my true feelings. I couldn’t give it. I mean it
“Q. . . . Could you, yourself, in that case, . . . answer the two questions yes and thereby assure the defendant would receive the death penalty and sign your signature on the space designated ‘foreman’?
“A. I know I said no to you then. I said yes because of the way it sounded, but I — if it would be the death penalty and make the case so grotesque that the person deserved it, but it is like you say, signing my name to it and giving the man the death penalty, that is against my feelings.
* * * * * *
“I guess if all the evidence was there I could. Oh, I don’t know. I just — I don’t think I could. I just don’t think I could.
* * * * * *
“Well, it is like you said, life or death. I could life — I could life. I could do that. I could say right off I could give a person life. I don’t know, I couldn’t do death, being that there is a choice.
“Q. Then we are back again to the general understanding that if you were the juror, yourself, if you were the person assessing the punishment, and answering the two questions, although it would be proper for somebody else to, you couldn’t take part?
“A. No, that is what I said the first time and that is the way I feel.
“Q. That is what you stick with?
“A. That is the way I feel.
“Q. . . . would that mean you would automatically vote no, in any case, so that the person would receive life?
“A. That is right.”

Upon further examination by the court, Jetter reaffirmed her position that she could not ever vote to impose the death penalty. Thus, the record reflects that the trial court properly sustained the State’s challenge for cause to Jetter; there was no violation of the Witherspoon doctrine. Appellant’s third ground of error is overruled.

In his fourth through eighth grounds of error, appellant contends that the trial court erred in sustaining the State’s challenge for cause to prospective juror Orth B. Carlton under Article 35.-16(10), Vernon’s Ann.C.C.P. Article 35.16, supra, provides:

“(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
******
“10. That he cannot read or write.”

Appellant first contends that this statute is unconstitutional, discriminatory and that it serves no legitimate ends. This contention was answered adversely to appellant in Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977), reaffirming the holding of Hernandez v. State, 506 S.W.2d 884 (Tex.Cr.App.1974). This contention is overruled.

Appellant next contends that the trial court abused its discretion in sustaining the State’s challenge for cause to prospective juror Carlton.

The record reflects that during the voir dire examination Carlton had incorrectly filled out the juror information card. He had put some information in the wrong blanks and had left information off of some blanks because he could not spell the names or words. He reiterated over and over that he had trouble filling out the card and that he did not understand the questions. Although he once stated that he thought that he could read and understand the court’s charge, he stated that if the charge were as difficult as the juror information card, he would have difficulty in understanding it.

It is well settled that the conduct of the voir dire examination must rest largely within the sound discretion of the trial court. Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Abron v. State, 523 S.W.2d 405 (Tex.Cr.App.1975); Hernandez v. State, supra. Upon the facts presented in this case, we cannot say that the trial court abused its discretion in sustaining the State’s challenge to prospective juror Carlton under Article 35.16(10), supra. Grounds of error four through eight are overruled.

In his ninth ground of error, appellant contends that the trial court erred in refusing to grant appellant’s oral motion for continuance made during the course of trial on guilt or innocence. The record reflects that, out of the presence of the jury, defense counsel asked the court to observe various injuries to appellant’s face and head, consisting of “a badly swollen black and blue and red right eye and an abrasion on the right side of his face which has swollen his eye, which are clearly visible, and cuts and abrasions on his lower lip, which are clearly visible . . . ”

Bailiff Jim Duvall testified that when he and other bailiffs picked appellant up that morning none of them saw his facial condition; he stated, however, that appellant had been wearing large sunglasses. Duvall testified that he had been told that appellant had been beaten by some inmates in the jail last night before the guard could separate them. The court overruled appellant’s motion. Before the jury was brought back in, counsel for appellant stated, “May we, on our motion, would His Honor mind, later, to have a color picture taken and have it introduced?” The court replied “He can certainly have it taken, if you desire to, and I will be glad to hear from you on the question of its presentation.” However, nowhere in the record does there appear a photograph or further discussion of appellant’s injuries.

A continuance after the trial has begun is authorized by Article 29.13, Vernon’s Ann.C.C.P., when by some unexpected occurrence during the trial the applicant is so taken by surprise that a fair trial cannot be had; the motion is addressed to the sound discretion of the court. Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977); Cooper v. State, 509 S.W.2d 565 (Tex.Cr.App.1974); Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972). The failure to grant such a motion is not error unless there is a showing of an abuse of discretion. Guerrero v. State, 487 S.W.2d 729 (Tex.Cr.App.1972); Cooper v. State, supra; Bradshaw v. State, supra. Upon the record before this Court, we cannot hold that the trial court abused its discretion in denying the motion. This Court is simply unable to review the merits of appellant’s contention, since nowhere in the record does there appear a photograph of appellant’s injuries or a further sworn description thereof, and since appellant has made no showing that he was harmed. There is no evidence in the record that the jurors noticed appellant’s injuries or that they were in any way affected during their deliberations by appellant’s appearance at either phase of the trial. Under these circumstances, we hold that appellant has failed to show that the trial court abused its discretion in denying the motion. See Ewing v. State, supra; Cooper v. State, supra; Guerrero v. State, supra; Bradshaw v. State, supra. This ground of error is overruled.

In his next two related grounds of error, appellant contends that the trial court erred in admitting into evidence the autopsy report of Dr. Shelton Green and that it erred in admitting into evidence State’s Exhibit Number 30, a bullet, as proper chain of custody had not been established.

At trial, Dr. Joseph Jachimczyk, Chief Medical Examiner for Harris County, testified from the contents of an autopsy report on the deceased prepared by Dr. Shelton Green, who had been working under his supervision. Since preparing the autopsy report, Dr. Green had moved to Nevada. Dr. Jachimczyk testified from the morgue ledger book that a bullet was recovered from the skull of the deceased, which bullet was labeled with Dr. Green’s initial and a number, and thereafter delivered to (Detective) H. A. Zoch. The record further reflects that Dr. Jachimczyk testified from the contents of the autopsy report without objection by the defense. In his testimony before the jury, Dr. Jachimczyk stated that autopsy reports prepared by others working under his supervision were kept in his office under his care, custody and control. Appellant’s contentions that it was error for this pathologist to testify from the report of another and that, therefore, the report was inadmissible as hearsay have previously and consistently been rejected by this Court. Denney v. State, 558 S.W.2d 467 (Tex.Cr.App.1977); Cato v. State, 534 S.W.2d 135 (Tex.Cr.App.1976); Whitfield v. State, 492 S.W.2d 502 (Tex.Cr.App.1973); Cuevas v. State, 456 S.W.2d 110 (Tex.Cr.App.1970); Burrell v. State, 446 S.W.2d 323 (Tex.Cr.App.1969).

Appellant’s related contention is that State’s Exhibit # 30 was inadmissible as proper chain of custody was not proven. He contends that since Dr. Green, the pathologist who retrieved the bullet from the deceased’s head, did not testify, the admission into evidence of the bullet was predicated upon the hearsay testimony of Dr. Jachimczyk. This contention is without merit.

Article 3737e, V.A.C.S., provides:

“Competence of record as evidence
“Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) It was made at or near the time of the act, event or condition or reasonably soon thereafter.
Section 2. The identity and mode of preparation of the memorandum or record in accordance with the provisions of paragraph one (1) may be proved by the testimony of the entrant, custodian or other qualified witness even though he may not have personal knowledge as to the various items or contents of such memorandum or record. Such lack of personal knowledge may be shown to affect the weight and credibility of the memorandum or record but shall not affect its admissibility.”

Dr. Jachimczyk testified from his morgue ledger book that this bullet was retrieved from the head of the deceased and delivered to H. A. Zoch. He further testified that the entries in the ledger book are made at or near the time that the events transpired, made by a person having personal knowledge of the events which transpired, which entries are made in the regular course of business in the morgue.

This testimony was sufficient to bring the evidence from the morgue ledger book within the Business Records Exception to the Hearsay Rule. See Broyles v. State, 552 S.W.2d 144 (Tex.Cr.App.1977); Lawless v. State, 495 S.W.2d 241 (Tex.Cr.App.1973); Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App.1973); Mahaffey v. State, 471 S.W.2d 801 (Tex.Cr.App.1971). The information was thus competent evidence of the first link in the chain of custody and furnished sufficient proof thereof. Grounds of error ten and eleven are overruled.

In his twelfth ground of error, appellant contends that the trial court erred in refusing to grant his motion in limine regarding the testimony of Dr. Jerome Brown at the punishment phase of the trial. Specifically, he contends that Dr. Brown’s testimony, based upon an examination of appellant, violated appellant’s right against self-incrimination. This contention was fully discussed and overruled in Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976). This holding was reaffirmed in Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977) and Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978).

Further, the record reflects that Dr. Brown testified that before he interviewed appellant he told appellant that he did not have to talk about anything if he did not wish to and that “anything he said might be held against him in court.” Dr. Brown also testified out of the presence of the jury that appellant had understood the nature of the charge against him and that the death penalty was a possible punishment. Appellant’s twelfth ground of error is overruled.

In his next two grounds of error, appellant contends that the trial court erred in admitting evidence of extraneous offenses at the punishment phase of the trial. The record at the hearing on punishment reflects that Armando Rangel operated a lounge in Houston. He was acquainted with appellant, as appellant used to frequent his establishment. He testified that on September 25th the lounge was vandalized and burglarized and that stereo speakers had been stolen. He further stated that on that day he had loaned appellant his truck and that later that afternoon he learned that his house had also been burglarized. He stated that his pistol, a tool box and money in a bank bag had been stolen. He then identified State’s Exhibit # 17 — the pistol recovered by police, speakers found in appellant’s wrecked car, and a bank bag recovered from appellant’s person, as his which had been stolen in the burglaries.

Cindy Doris, who had been with appellant and Larry Johns during their attempt to leave the state, testified that the stereo speakers had been in their car before the accident and identified the money bag as the one which appellant carried with him on that date. She also testified, without objection, to an admission by appellant that he got the speakers and money when “they burglarized a joint.”

Appellant now contends that the court erred in permitting testimony of inadmissible extraneous offenses. We do not agree.

Article 37.071, Vernon’s Ann.C.C.P. provides that at the punishment phase of a capital murder trial, “evidence may be presented as to any matter that the court deems relevant to sentence.” (emphasis added) In construing this statute, we stated in Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975) that:

“In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct . ” (Emphasis added)

Thus, the trial court has wide discretion in admitting evidence at the punishment phase of a capital murder trial. See Gholson and Ross v. State, 542 S.W.2d 395 (Tex.Cr.App.1976); Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976); Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976); Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977); Brown v. State, 554 S.W.2d 677 (Tex.Cr.App.1977).

In upholding the constitutionality of the Texas death penalty procedures, the Supreme Court of the United States wrote:

“Texas law requires that if a defendant has been convicted of a capital offense, the trial court must conduct a separate sentencing proceeding before the same jury that tried the issue of guilt. Any relevant evidence may be introduced at this proceeding . . . the Texas capital sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death . . . What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine. Texas law clearly assures that all such evidence will be adduced.” (Emphasis added)

Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Nothing in Article 37.071, supra, requires that there be a final conviction for an extraneous offense to be admissible at the punishment phase. Clearly, evidence of pri- or offenses falls within the range of “prior criminal conduct.” Such “prior criminal conduct” is clearly relevant.to the jury’s deliberations on special issue number two, submitted to the jury at the punishment phase. Therefore, we hold that the trial court did not err in admitting into evidence testimony concerning the burglary. Appellant’s thirteenth and fourteenth grounds of error are overruled.

In his fifteenth ground of error, appellant contends that the trial court erred in admitting into evidence at the punishment phase the speakers and money bag, as they were obtained pursuant to an illegal search and seizure. No such objection on this ground was made at trial or at the hearing on the motion to suppress. Therefore, nothing is presented for review. Lejeune v. State, 538 S.W.2d 775 (Tex.Cr.App.1976); Johnson v. State, 504 S.W.2d 496 (Tex.Cr.App.1974). Weatherspoon v. State, 501 S.W.2d 909 (Tex.Cr.App.1973).

In appellant’s final two grounds of error, he contends that the trial court erred in allowing John Harold and Connie Wilson to testify at the hearing on punishment. He contends that by the admission of their testimony concerning the circumstances of the offense, to which they were witnesses, the State was allowed to “retry” its case. Appellant’s contention that this was error is without merit. The circumstances of the offense and the facts surrounding it are probative evidence regarding the special issues. Duffy v. State, 567 S.W.2d 197 (Tex.Cr.App.1978); Brock v. State, 556 S.W.2d 309 (Tex.Cr.App.1977). This testimony was probative, relevant and, therefore, admissible. This ground of error is overruled.

The judgment is affirmed.

ROBERTS, Judge,

concurring.

While I concur in the affirmance of the judgment, I would approach differently the question of proving unadjudicated, extraneous offenses in the “sentencing proceeding” of a capital case.

The majority is correct in concluding that Article 37.071(a) of the Texas Code of Criminal Procedure would admit such offenses. This conclusion should rest on more than two emphasized phrases from Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975) and Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).

Article 37.071(a) of the Texas Code of Criminal Procedure was added by a Senate amendment to H.B. 200 in the 63rd Texas Legislature. See “Comment, House Bill 200,” 11 Houston Law Review 410 (1974). The amendment seems to have been based on Section 921.141 of Florida Statutes Annotated (Supp.1979), which was passed hastily by a special session of the Florida Legislature, called in response to Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). See Erhardt & Levinson, “Florida’s Legislative Response to Fur-man,” 64 Journal of Criminal Law & Criminology 10 (1973). The Florida statute, in turn, largely is copied from Section 210.6 of the Model Penal Code. The comments to this source provision appear in Tentative Draft No. 9 (1959), and shed light on the question.

The drafters of the Model Penal Code chose a bifurcated trial procedure for capital cases to avoid “an inescapable dilemma if the jury is called upon to pass on sentence at the same time that it reaches a verdict as to guilt or innocence. Either the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. . The obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence.” American Law Institute, Model Penal Code 74-75 (Tentative Draft No. 9 1959).

The cited sections of the Model Penal Code and the Florida statutes accomplish this opening of the record by providing, “Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is afforded a fair opportunity to rebut any hearsay statements.” The Texas Legislature chose to omit this sentence from Article 37.071(a), and this must evince its intention that the general rules of evidence continue to apply in these proceedings.

But the very choice of this bifurcated procedure also evinces an intention that evidence that would be inadmissible at the guilt stage should be admitted in these proceedings. This is so because the dangers of confusion of, and prejudice to, the issue of guilt have passed, and because of the constitutional compulsion to give the capital jury as much relevant information as is possible. I can agree that this intention would justify the admission of extraneous offenses, even unadjudicated ones. (If the Legislature wanted to limit the evidence to convictions, it could do as it has done in Article 37.07, Section 3(a), of the Texas Code of Criminal Procedure.)

But this cannot be the end of the issue. For, in addition to the dangers of confusion and prejudice, there is a third reason why evidence law has excluded proof of extraneous offenses: unfair surprise. J. Wigmore, Evidence, Section 55 (3rd ed. 1940). And, in addition to the constitutional compulsion to give the capital jury as much relevant information as possible, there is a constitutional compulsion to give the capital defendant due process (and due course) of law. Article 37.071 should not be construed as authorizing proof of unadjudicated, extraneous offenses if this comes as an unfair surprise to the defendant. Notice, a fundamental element of due process, must be provided. Allowing proof of unadjudicated, extraneous offenses comes close to allowing one or more “prosecutions” of the defendant in the sentencing proceeding. Simple fairness requires that the defendant be given notice that the State intends to offer proof of unadjudicated, extraneous offenses, so that the defendant and his counsel can investígate and prepare a response. Trial judges should be mindful of this notice problem when they exercise the “wide discretion in admitting evidence” mentioned by the majority; this discretion may not transgress on state and federal constitutional rights.

In this case, the record shows that the appellant and his counsel had actual notice of the State’s intention to offer proof of the extraneous offense. Counsel made a motion in limine, and he did not seem to be surprised. For these reasons I can concur in this affirmance.

PHILLIPS, J., joins in this opinion.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . This provision has since been amended to provide in Sec. 3(a) that such oral statements are admissible for the purpose of impeachment, when they are electronically recorded in accordance with statutory requirements. However, Subsection 3(c) provides that Subsection (a) is inapplicable to statements which contain assertions of facts found to be true which conduce to establish the guilt of the accused. Thus, it appears that oral statements under Subsection (c) are admissible as direct evidence against the accused, providing constitutional requisites of voluntariness and waiver of 5th Amendment rights are met.

      . A further discussion of the admissibility of the stereo speakers occurs in appellant’s ground of error number fifteen.

      . In accordance with Article 37.071, supra, the jury was charged:
      “Do you find from the evidence beyond a reasonable doubt that the conduct of the defendant, Moses Garcia, that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result?”
      and,
      “Do you find from the evidence beyond a reasonable doubt that there is a probability that the defendant, Moses Garcia, would commit criminal acts of violence that would constitute a continuing threat to society?”

      . In Witherspoon, the Supreme Court of the United States stated:
      “Specifically; we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. No defendant can constitutionally be put to death at the hands of a tribunal so selected.”
      The Court further stated:
      “Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position.”
      The Court elaborated in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969):
      “[i]t is entirely possible that a person who has ‘a fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law — to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.”
      Further, in Davis v. Georgia, 429 U.S. 122, 97 S.Ct. 399, 50 L.Ed.2d 339 (1976) the Court reaffirmed the Witherspoon doctrine and held that no death penalty can stand if a single venireman is excluded in violation of that doctrine.

      . The record reflects that the autopsy report the record, out of the presence of the jur was admitted into evidence for the purposes of

      . This is the only link in the chain of custody which appellant attacks.

      . Appellant also complains of the admission into evidence of some pool balls. However, the record reflects that these items were not admitted into evidence.

      . Proof of prior convictions should present no problem of notice, for the defendant should be aware of such convictions, and records of convictions are easily discoverable by counsel. The same cannot be said of unadjudicated, extraneous offenses.

      . At least one jurisdiction requires such notice by statute. See Section 27-2053 of Georgia Code Annotated.


author: DALLY, Judge.

text:
    Ex parte Davis SCOTT.
    No. 58184.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 23, 1979.
    Richard A. Dawson, Rosharon, for appellant.
    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 DALLY, J.
   OPINION

DALLY, Judge.

This is a post-conviction writ of habeas corpus proceeding brought under Art. 11.07, V.A.C.C.P.

The petitioner contends he is entitled to relief because he did not have effective assistance of counsel when he was convicted in Cause No. 192,328 in the 185th District Court of Harris County on October 12, 1973. In that cause the petitioner was convicted of the offense of burglary with the intent to commit theft. The primary offense was enhanced by two prior convictions and punishment of life imprisonment was assessed under the provisions of Art. 63, V.A.P.C. (1925). Although the appellant pled not guilty before a jury to the primary offense, he stipulated, at the punishment phase of the trial, that he had been convicted of the prior offenses just as they were alleged in the indictment.

It was alleged in the indictment that petitioner had been convicted for the offense of robbery in Cause No. 70,695 in Criminal District Court No. 2 of Harris County on November 26, 1953, and after that conviction became final the petitioner committed the offense of robbery and was convicted of that offense in Cause No. 7384 in Fort Bend County on May 30, 1958.

Petitioner now urges that his counsel was ineffective because he failed to discover that the first alleged prior conviction was not a final conviction when the petitioner committed the second alleged prior conviction. A hearing has now been had in the convicting court and the record shows that the offense for which the petitioner was convicted in Fort Bend County was committed on October 20, 1953, which was prior to his conviction in Harris County. The petitioner argues that counsel should have made this discovery and should not have permitted him to stipulate to the prior convictions. He says he received ineffective assistance of counsel when he was advised to make the stipulation and he says he did not know the legal implication of the stipulation and that he relied on trial counsel’s advice.

The petitioner was an employee of counsel who represented him in the trial court. Counsel gave petitioner extra work to earn money to employ other counsel and urged the petitioner to seek other counsel, but when petitioner did nót do so counsel agreed to and did represent petitioner. The trial counsel had never before represented a defendant charged as an habitual offender and he did not investigate and determine that the allegations of the indictment concerning the prior convictions were untrue— that is, that petitioner had not been convicted of the offense in Harris County before he committed the offense in Fort Bend County — before advising the petitioner to enter into the stipulation that the allegations were true.

This Court has held that:

“ ‘. . . willful (but not necessarily negligent) misconduct by an employed attorney without defendant’s knowledge which amounts to a breach of the legal duty of an attorney to his client, can in some circumstances constitute an infringement of an accused’s federally protected right to effective representation by counsel in a criminal proceeding.’ ”

Steel v. State, 453 S.W.2d 486 (Tex.Cr.App.1970), quoting from Holbert v. State, 439 S.W.2d 507 (Mo.1969). See also Benoit v. State, 561 S.W.2d 810 (Tex.Cr.App.1977); Ex parte Shields, 550 S.W.2d 670 (Tex.Cr.App.1977) (Opinion on State’s Motion for Rehearing); Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972); Walsh v. State, 468 S.W.2d 453 (Tex.Cr.App.1971); Lawson v. State, 467 S.W.2d 486 (Tex.Cr.App.1971). As these decisions recognize, the assessment of whether the defendant has been rendered effective assistance of counsel must be made according to the facts of each case.

In these circumstances we hold that the petitioner failed to receive effective assistance of counsel. The result at which we have arrived is consistent with the findings and recommendation of the trial judge. The petitioner’s conviction as a second offender may be upheld under the provisions of Art. 62, V.A.P.C. (1925). The maximum punishment under that article for the offense for which the appellant was convicted was imprisonment for twelve years. The judgment and sentence shall be reformed to show petitioner’s conviction as a second offender with punishment of imprisonment for twelve years. The petitioner is entitled to his release from imprisonment for this offense when he has satisfactorily served that sentence.

It is so ordered.


author: W. C. DAVIS, Judge.

text:
    Ex parte Johnny Al HUNTER.
    No. 59890.
    Court of Criminal Appeals of Texas, Panel No. 1.
    May 23, 1979.

      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 writ of habeas corpus filed pursuant to Article 11.07, Vernon’s Ann.C.C.P.

On July 22, 1976, petitioner, a juvenile, entered a plea of guilty to the offense of aggravated robbery. Petitioner subsequently filed an application for writ of ha-beas corpus, contending that the convicting court was without jurisdiction to hear the case because he was not accorded his right to an examining trial.

This Court has held that an examining trial is a mandatory step in securing the conviction of a juvenile who has been certified as an adult. Ex parte Clark, 579 S.W.2d 11 (Tex.Cr.App.1979); Ex parte Menefee, 561 S.W.2d 822 (Tex.Cr.App.1978). This step may be waived only if done so according to the provisions of V.T.C.A., Family Code, Section 51.09(a). Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

In the instant case, petitioner was not accorded his right to an examining trial and did not waive the right pursuant to Section 51.09(a), supra. He is entitled to the relief he seeks. Ex parte Bittick, 579 S.W.2d 12 (Tex.Cr.App.1979).

Petitioner’s conviction for aggravated robbery in Cause No. 4065 is set aside.

      . The record reflects that petitioner waived indictment and entered his plea of guilty to an information and complaint.


author: DALLY, Judge. DOUGLAS, Judge,

text:
    Ex parte Debra Inez SHARPE.
    No. 60833.
    Court of Criminal Appeals of Texas, En Banc.
    May 23, 1979.

      Carol S. Vance, Dist. Atty., and Douglas M. O’Brien, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

DALLY, Judge.

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

The petitioner was convicted for the felony offense of credit card abuse on June 19, 1978. The court assessed punishment of imprisonment for two years. The petitioner did not appeal from the conviction, and subsequently, pursuant to the provisions of Art. 42.12, Sec. 3e(a), V.A.C.C.P., the court suspended further execution of the petitioner’s sentence and granted probation.

The petitioner now urges that the indictment under which she was convicted was fundamentally defective because it failed to allege a criminal offense.

It is alleged in the indictment that the petitioner on April 15, 1977, did

“. . . unlawfully with intent to fraudulently obtain property and services present to Pam Rutledge a BankAmeri-card credit card owned by Hiram C. Limerick, hereafter styled the Complainant, without the effective consent of the Complainant, knowing that the credit card had not been issued to the Defendant

It is asserted that the indictment fails to allege that petitioner presented the credit card knowing that she did not have the effective consent of the card holder.

V.T.C.A. Penal Code, Sec. 32.31, provides:

“(a) • • •
“(b) A person commits an offense if:
“(1) with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that:
“(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder;”

The indictment fails to allege the petitioner used the credit card knowing that she did not have the effective consent of the cardholder. The petitioner is entitled to the relief sought under the authority of Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978); Ex parte Reed, 574 S.W.2d 161 (Tex.Cr.App.1978); Ex parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978); Ex parte Dawson, 578 S.W.2d 749 (Tex.Cr.App.1979); Guster v. State, 580 S.W.2d 363 (No. 58,559, decided May 2, 1979).

The State argues that under the authority of Johnson v. State, 541 S.W.2d 619 (Tex.Cr.App.1976) relief should be denied. The indictment in that case was substantially the same as the indictment in this case, and the judgment in that case was affirmed. However, the objection to the indictment in that case was not the same objection that has been made in this case. The matter here decided was not raised in that case. We were in error in Johnson v. State, supra, in stating that all of “. the constituent elements of the offense were charged in the terms of the statute . ” See the form for indictment suggested in McClung, Jury Charges for Texas Criminal Practice with Indictment and Information Forms, rev. ed. 1979, p. 317.

The petitioner’s application for writ of habeas corpus is granted and the prosecution under this indictment is dismissed.

It is so ordered.

DOUGLAS, Judge,

dissenting.

The majority holds that the allegations in this credit card abuse case did not charge an offense because it did not allege that the petitioner presented the card knowing that she did not have the effective consent of the complainant. The indictment alleged that petitioner did

. . unlawfully with intent to fraudulently obtain property and services present to Pam Rutledge a BankAmeri-eard credit card owned by Hiram C. Limerick, hereafter styled the Complainant, without the effective consent of the Complainant, knowing that the credit card had not been issued to the Defendant.

This Court held in Johnson v. State, 541 S.W.2d 619 (Tex.Cr.App.1976), that such allegations were good and alleged an offense. After the courts have followed the Johnson case for three years, the majority now holds fundamental error on the same allegations. The Johnson case was on appeal. The present case concerns a collateral habeas corpus attack after Sharpe did not contest the indictment. She entered a plea of nolo contendere which is tantamount to a plea of guilty.

The indictment is sufficient to give notice to an accused that the charge is credit card abuse. It alleges that the defendant with intent to fraudulently obtain property and services presented a credit card belonging to the complainant without the effective consent of the complainant knowing that the credit card had not been issued to the defendant.

Reading the allegations as a whole, it shows that Sharpe knew that she did not have consent to present the credit card. It alleges that she fraudulently used it without the effective consent of the complainant to obtain property.

Article 21.17, V.A.C.C.P., provides:

“Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.”

This statute and the Johnson case, supra, should be followed.

In Teniente v. State, 533 S.W.2d 805 (Tex.Cr.App.1976), the conviction was for burglary. The indictment alleged:

“ ‘On or about the 3rd day of July, A.D., 1974, Tony P. Teniente did then and there, with intent to commit theft, enter a habitation without the effective consent of Carlos Reyna, the owner.’ ”

There was no allegation of a culpable mental state that Teniente intentionally or knowingly entered the building. The allegation of entering the building “with intent to commit theft” was held sufficient. The same reasoning should apply in this case. The relief sought should be denied.

W. C. DAVIS, J., joins in this dissent.


author: DOUGLAS, Judge.

text:
    Ex parte Bobby Ray BOWENS.
    No. 61285.
    Court of Criminal Appeals of Texas, En Banc.
    May 23, 1979.

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

DOUGLAS, Judge.

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

On December 6,1971, Bobby Ray Bowens was assessed two concurrent ten-year sentences. He was paroled from the Texas Department of Corrections (TDC) on October 31, 1974. He was subsequently three times arrested and held in the Tarrant County jail as a parole violator. On each of these occasions he was held in Tarrant County pursuant to a pre-revocation parole warrant that acts as a detainer in favor of TDC. On the first two occasions he was transferred to TDC the warrant was withdrawn and he was released to continue his parole. On the third occasion his parole was revoked.

TDC has credited petitioner with calendar time for the time he spent in the Tar-rant County jail from March 8, 1976, to March 26, 1976; from September 10, 1976, to December 2, 1977; and from April 26, 1978 to July 14, 1978. They have not credited him with good time for these time periods.

Petitioner filed this application with the convicting court. The State filed an answer agreeing that relief should be granted. No hearing was held or fact findings entered but the trial court also recommended that relief be granted.

In Ex parte Williams, 551 S.W.2d 416 (Tex.Cr.App.1977), we dealt with a similar contention by saying:

“(Since) . petitioner did not have his choice of custodian, it is repugnant to Article 1, Section 19, of the Texas Constitution to deny him credit for good conduct while in the federal institution.
“We do not feel that Article 42.03, Vernon’s Ann.C.C.P., effective August 27, 1973, is controlling, since this provision of the Code pertains to the trial court only. After sentence has become final, the defendant is in the custody of the Department of Corrections either through ‘constructive’ or ‘physical’ detention. It is this rationale that compels this Court to require the Department of Corrections to apply ‘good time’ credit equally to both;

The merits of petitioner’s contentions are controlled by Williams. As soon as petitioner was placed in the Tarrant County jail under the parole revocation warrant he was under the constructive custody of TDC. He, therefore, is entitled to consideration for good time credits for all three time periods.

The instant application contains numerous documents attached as exhibits which tend to substantiate petitioner’s allegations. However, without competent evidence to prove all of the necessary facts, we will not specifically order that certain good time credits be awarded. TDC has all of the factual information from which to award the good time. We, therefore, hold only that petitioner is entitled to good time credits for all time periods he was held in the Tarrant County jail pursuant to a parole revocation warrant. The ultimate decision concerning the specific amount of credit must be left to the officials of TDC subject to review by this Court.

IT IS SO ORDERED THIS THE 23rd DAY OF MAY, 1979.

      . We are not passing upon cases that were tried after June 14, 1973. The Legislature provided in Article 42.12, Section 22, V.A.C.C.P.:
      “. . . When the Governor revokes a prisoner’s parole, he may be required to serve the portion remaining of the sentence on which he was released on parole, such portion remaining to be calculated without credit for the time from the date of his release on parole to the date of his revocation of parole by the Governor on the charge of parole violation. When a warrant is issued by the Board of Pardons and Paroles or the Governor charging a parole violation, the sentence time credit shall be suspended until a determination is made by the Board of Pardons and Paroles or the Governor in such case and such suspended time credit may be reinstated by the Board of Pardons and Paroles should such parole be continued.” Acts 1973, 63rd Leg., p. 1235, ch. 447, Sec. 1, effective June 14, 1973.


author: PRESLAR, Chief Justice.

text:
    F. L. LIVINGSTON, Appellant, v. Hardy L. GAGE, Appellee.
    No. 6693.
    Court of Civil Appeals of Texas, El Paso.
    Dec. 20, 1978.
    Rehearing Denied May 23, 1979.

      Jennings, Montgomery, Dies & Turner, Frank L. Jennings, Graham, for appellant.
    Fillmore & Camp, John P. Camp, H. Dustin Fillmore, Patrick H. O’Neill, Fort Worth, John R. Lee, Kermit, for appellee.
   OPINION

PRESLAR, Chief Justice.

This is an appeal from both the trial on the merits and the overruling of the Defendant’s plea of privilege. Following trial by a jury, judgment was entered for the Plaintiff/Appellee in the amount of $175,-000.00 actual damages and $150,000.00 punitive damages. We affirm the judgment of the trial Court.

Referring to the parties as they appeared in the trial Court, Appellee as Plaintiff and Appellant as Defendant, the Plaintiff brought this suit against the Defendant and two others who were later dismissed as party/defendants and are not involved in this appeal. Plaintiff sought recovery of an undivided Vsrd interest in certain producing oil and gas leases in Winkler County on a theory of constructive or resulting trust. He contended that he had paid $175,000.00 to the Defendant for the purchase of these oil and gas properties. Alternatively, Plaintiff sought recovery of the $175,000.00 on the ground that the payment thereof was induced by fraud. He also sought exemplary damages. When the Plaintiff rested, the Defendant moved for a directed verdict, and the Court sustained that part of the motion for directed verdict which involved the Vsrd interest in the oil and gas properties. The ease was submitted to the jury on the alternative theory of fraud.

When the Court directed the verdict eliminating the claim for an interest in the oil and gas leases, the Defendant immediately notified the Court that he was not appearing further in the Court voluntarily, and he immediately filed a plea of privilege. He appeals the Court’s order overruling that plea of privilege. The Defendant was not a resident of the county of suit and did not file a plea of privilege prior to commencement of the trial. He says he did not do so because it was obvious under Subdivision 14 of Article 1995, Tex.Rev.Civ.Stat. Ann., that such a plea would not be good as this was a suit for recovery of an interest in real property. But, he contends, when the issue of an interest in the real property went out of the case, he was then entitled to his plea of privilege as to the alternative allegation of fraud. In that connection, it is clear that the fraud did not occur in the county of suit. It is well established that one who desires to assert his plea of privilege must do so as the first order of pleading, and that the filing of an answer or other pleadings prior to the plea of privilege constitutes waiver of such a plea. Ryman Well Service, Inc. v. B. D. Holt Company, 478 S.W.2d 801 (Tex.Civ.App. — Corpus Christi 1972, no writ); Westbrook v. Bradford, 429 S.W.2d 638 (Tex.Civ.App. — Austin 1968, no writ); 1 McDonald, Texas Civil Practice, Sec. 4.40 at 570; 59 Tex.Jur.2d Venue, Sec. 158 at 609-611. The Defendant does not argue with that rule of law, but urges an exception to be applicable here where his plea of privilege comes for the first time after the cause of action on which venue could be maintained has gone out of the case.

Defendant relies on two cases for this exception: Farnham v. First Nat. Bank of El Paso, 28 S.W.2d 883 (Tex.Civ.App. — El Paso 1930, no writ); and Wood v. Fulton Property Co., 90 S.W.2d 617 (Tex.Civ.App. —Eastland 1936, no writ). To those authorities can be added Watson v. Harrington, 285 S.W.2d 390 (Tex.Civ.App. — Austin 1955, no writ). In each of those cases, the defendant was allowed to file a plea of privilege after the cause of action had changed. They differ from this Defendant’s situation in that in each of them the cause of action was changed by amendment of the plaintiff’s pleadings prior to trial. In the Farn-ham case, the plaintiff brought suit to recover land under a certain judgment foreclosing a lien on it and to set aside the deficiency part of the judgment. Suit was in the county where the land was located. Prior to trial, the plaintiff amended her petition to eliminate any claim for recovery of the land and sought only to set aside the deficiency part of the judgment. The defendant/bank then filed its plea of privilege and this Court upheld its right to do so, noting that the amended petition replaced the original petition and omitted from the trial the only ground that made the cause triable in a county of suit. In our case, there were no amended pleadings filed which changed the cause of action prior to suit. Rather, it is a trial on two alternative theories, one of which the proof failed.

In the Wood case, the change of cause of action also occurred prior to trial, and the defendant there requested and got permission of the Court to withdraw prior pleadings so that its then filed plea of privilege was the first pleading. In our case, the Defendant did not withdraw his prior plea in abatement or answer on which he went to trial. Watson v. Harrington, supra, involved a trespass to try title case in which the defendant filed a disclaimer which had the effect of making him no longer considered a party to the suit. The plaintiff then filed an amended pleading seeking damages for fraud against the defendant, and the Court allowed a plea of privilege to that new pleading. Again, it must be noted that this case involved a change of pleadings prior to trial. In our case, the plea of privilege comes at the conclusion of the Plaintiff’s case when he had rested, and the Defendant urged his plea of privilege not to a changed cause of action but because the proof had failed on one of two alternative theories of recovery. We do not think this Defendant is in the position of the defendants in the three cases decided so as to come within an exception of the general rule. He sought to file his plea of privilege at a point in the proceedings when the Plaintiff had in a trial of the merits presented his proof and rested, and at a time when the Defendant had on file a plea in abatement, his original answer, and a motion for directed verdict. To allow what Defendant seeks to do here would disrupt orderly trial procedure. It must not be unusual for the proof of facts on the merits of a trial to fail to establish what would be venue facts. If during the trial on the merits the venue facts were not all proved, the Court would be required to stop and hold a venue hearing. This could lead to the trial of a case in one county on one theory and then be moved and tried on another theory in another county. Here, the Defendant was eligible to file a plea of privilege only after he had been successful in a motion for directed verdict as to one theory of the Plaintiff’s case. We think the trial Court correctly denied his plea of privilege.

The law in Texas does afford a defendant relief if a plaintiff’s pleadings are made in bad faith, fraud, or with no probable cause. Such pleadings and proof will defeat a plaintiff’s use of Section 14, Article 1995, as an exception to venue in the defendant’s county of residence. Best Investment Company v. Parkhill, 429 S.W.2d 531 (Tex.Civ.App. — Corpus Christi 1968, no writ). In the case before us, there is no such contention as to Plaintiff’s pleadings.

Appellant has numerous points of error based upon his motion for a new trial. Appellee urges that we cannot consider these points of error because as assignments of error in Appellant’s motion for a new trial, they are too general or too vague under the requirements of Rules 320, 321, 322 and 374, Tex.R.Civ.P. Under those Rules, and the cases construing them, Ap-pellee’s position would be correct, but the Rules of Civil Procedure have undergone a change since this case was tried. Rule 324 became effective January 1, 1978, and under it the Appellant was not required to file a motion for new trial to preserve the points of error here under consideration. While the briefs in this case were filed prior to the effective date of Rule 324, we are bound by it in determining the sufficiency of the point of error. Cavitt v. Jetton's Greenway Plaza Cafeteria, 563 S.W.2d 319 (Tex.Civ.App. — Houston [1st Dist.] 1978, no writ); Delta Brands, Inc. v. Borden Metal Products Company, 570 S.W.2d 1 (Tex.Civ. App. — Beaumont), writ ref’d n. r. e., 570 S.W.2d 876 (Tex.1978). The general rule is that in the absence of an expressed intention to the contrary, procedural rules adopted by the Supreme Court are applied to pending litigation in that subsequent steps in the case are controlled by the new rule. Brooks v. Texas Employers Insurance Association, 358 S.W.2d 412 (Tex.Civ.App.— Houston 1962, writ ref’d n. r. e.). We overrule Appellee’s contention and will consider the points of error.

Appellant has numerous points of error as to no evidence and insufficient evidence to support the findings of the jury. We have examined these points of error under now familiar rules as to legal sufficiency points and factual sufficiency points and find that they present no reversible error. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Commercial Standard Insurance Company v. Allred, 413 S.W.2d 910 (Tex.1967).

The jury made an award of $150,-000.00 in this case for exemplary damages, and the Appellant assigns error in that there was no submission of an issue finding malice, that the Court erred in conditioning the damage issue on Special Issue No. 7, and that there can be no award of exemplary damages in the absence of a finding of malice. We conclude that the finding must be upheld. The jury found: (1) Plaintiff furnished Defendant $175,000.00; (2) Defendant represented to Plaintiff that he would receive a Vsrd interest in certain lands if he would furnish $175,000.00; (3) such representation was false; (4) Defendant did not intend to fulfill the representation at the time he made it; (5) Defendant made the representation for purposes of inducing Plaintiff to pay him $175,000.00; (6) Plaintiff relied upon the representation; (7) the Defendant intended to deceive the Plaintiff; and (8) the Plaintiff suffered $175,000.00 actual damage. Special Issue No. 9 inquired as to what sum of money, if any, the Plaintiff should be awarded against the Defendant as exemplary damages. This issue was conditioned on an affirmative answer to Special Issue No. 7 (as to intent to deceive), and had the following explanation:

“ ‘Exemplary damages’ means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages.”

Appellant cites a general rule for awarding exemplary damages as found in 25 C.J.S Damages § 123(5), as follows:

“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.”

The above has been quoted with approval by our Supreme Court in Ware v. Paxton, 359 S.W.2d 897 (Tex.1962); Dennis v. Dial Finance & Thrift Company, 401 S.W.2d 803 (Tex.1966). The above is the general rule, but the type of malice necessary to support exemplary damages varies with the nature of the wrongful act involved. Here, the wrongful act was fraud, and in fraud cases our Supreme Court has held that exemplary damages may be awarded “when the plaintiff has suffered actual damage as the result of fraud intentionally committed for the purpose of injuring him.” Dennis v. Dial Finance & Thrift Company, supra, and followed in Collins v. Miller, 443 S.W.2d 298 (Tex.Civ.App. — Austin 1969, writ ref’d n. r. e.); Woo v. Great Southwestern Acceptance Corporation, 565 S.W.2d 290 (Tex.Civ.App. —Waco 1978, writ ref’d n. r. e.). As noted, the exemplary damage issue here was conditioned on Special Issue No. 7 inquiring if the Defendant intended to deceive the Plaintiff. The Supreme Court in the Dennis v. Dial Finance case cited the above rule from C.J.S. and said:

“A person who intentionally misrepresents facts for the purpose of injuring another is guilty of wanton and malicious conduct. The allowance of exemplary damages in cases of wilful and deliberate fraud does not, therefore, do violence to the rule quoted above. * * * ”

Dennis v. Dial Finance is exactly in point here, as it was an action to recover money obtained by fraud. The elements of fraud are in Special Issues Nos. 1 through 6 so that we have in this case findings of actual fraud, and by Special Issue No. 7 the intention to deceive. By conditioning the exemplary damage issue on Special Issue No. 7, the Court set up the proper test. We uphold the award of exemplary damages.

Appellant filed a plea in abatement that this suit should be abated pending the outcome of a prior suit in the District Court of Stephens County, Texas. In the Stephens County suit, a Mr. Langford, a Mr. Briscoe, and Appellant Livingston filed suit against the Appellee on a $550,000.00 promissory note. Langford and Briscoe are not parties in the case at bar. Appellee filed this case in the District Court of Winkler County against Appellant Livingston, The First National Bank in Olney, Texas, and Luther May, Jr. The Bank and May are not parties to the Stephens County suit. Appellant contends the $175,000.00 here involved was the payment on the note sued on in the Stephens County suit, while Appellee contends that it is obtained by fraudulent representations of obtaining the oil and gas interest in Winkler County.

Appellant contends first that Appel-lee’s claim for recovery of the $175,000.00 was a compulsory counterclaim in the Stephens County suit. Rule 97(a), Tex.R. Civ.P., states:

“(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction * *

The issues in these two suits are not the same. The one is for collection of a note, and the other is for recovery of money obtained by fraud. This is not a compulsory counterclaim under Rule 97. “Before abatement is proper it must appear that the cause or causes of action and the issues involved are substantially the same in the two suits.” Rowland v. Prappas, 491 S.W.2d 179 at 182 (Tex.Civ.App. — Houston [1st Dist.] 1973, writ ref’d n. r. e.). See also Astro Sign Company v. Sullivan, 518 S.W.2d 420 (Tex.Civ.App. — Corpus Christi 1974, writ ref’d n. r. e.). The transactions on which the two suits are based occurred eight months apart. We do not find that the suits are so interrelated that abatement was necessary. The suits do not have identical parties, and a judgment in one would not dispose of the cause of action in the other. See 2 McDonald, Texas Civil Practice, Sec. 7.10.

All points of error have been considered and all are overruled. The judgment of the trial Court is affirmed.


author: MURRAY, Justice.

text:
    Helen D. MARSHALL and Louis E. Marshall, Appellants, v. JOSKE’S, INC., a/k/a Joske’s of Texas, Appellee.
    No. 16158.
    Court of Civil Appeals of Texas, San Antonio.
    April 4, 1979.

      C. David Evans, Louis E. Marshall, Evans & Marshall, San Antonio, for appellants.
    Roy D. Quillian, III, Brock, Bingham & Person, San Antonio, for appellee.
   OPINION

MURRAY, Justice.

Louis E. Marshall and wife, Helen D. Marshall, appellants, sued Joske’s, Inc., ap-pellee, for damages for personal injuries sustained by Mrs. Marshall while a customer in appellee’s store. Mrs. Marshall was standing at a counter in appellee’s store when she was struck by a baby carriage being pushed by another person which caused her to fall and injure her head, neck, shoulders, and back. At the conclusion of plaintiffs’ evidence, the trial court entered a take-nothing judgment against appellants based upon defendant’s motion for instructed verdict. We reverse the judgment of the trial court and remand the case for a new trial.

Appellants contend that the evidence admitted at trial was sufficient to raise issues of negligence and proximate cause for the jury’s determination. We agree. In reaching this determination, we must review the evidence in its most favorable light in support of appellants’ position. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943). Any inference that may properly be drawn from the evidence must be indulged against granting the motion for instructed verdict. Echols v. Wells, 510 S.W.2d 916 (Tex.1974).

On March 4, 1976, Mrs. Marshall and her daughter went to Joske’s in San Antonio for the purpose of purchasing a pair of sunglasses. The sunglasses were displayed on racks in an open display case, which were located on the west side of an aisle in appellee’s store. On the east side of this aisle, shelves extended into the aisle where picture frames and other merchandise were displayed. Customers and other persons passing through the store would use this aisle both for shopping for merchandise on the counters and for passage to and from the escalator. The accident occurred when Mrs. Marshall was standing in the aisle with her daughter next to the sunglasses counter looking at the merchandise. While so standing, a woman, who was attempting to push a baby carriage through the aisle which was partially blocked by other persons, struck Mrs. Marshall with the carriage. As a result of this collision, Mrs. Marshall slipped and fell against the bottom shelf on the opposite side of the aisle and sustained injuries.

Appellants alleged that Joske’s was negligent in maintaining an aisle on its premises that was too narrow. According to appellants, this narrowness created an unreasonably dangerous condition to shoppers on the premises which proximately caused Mrs. Marshall’s injuries. Appellants also alleged that this aisle was narrower than what is permitted by section 3313(b) of the San Antonio Uniform Building Code. This section requires that every aisle within the city shall not be less than three feet six inches wide if serving both sides. This minimum width shall be measured at the point farthest from an exit, cross aisle, or foyer and shall be increased by one and one-half inches for each five feet in length toward the exit, cross aisle, or foyer. Mr. Marshall measured the width of the aisle to be fifty-one inches and estimated the length of the aisle, by pacing it off, to be 105 feet. Since the aisle had both an exit at one end and a cross-aisle at the other, the farthest point from these ends would be the center, which would be fifty-two and one-half feet. Under the San Antonio Building Code, this figure would be used to determine the proper width of this aisle. Based on these measurements, appellants’ expert witness testified that the minimum width of this aisle required by the City Code would be fifty-seven and three-fourths inches. In the absence of any evidence to the contrary, we must accept these measurements as correct. These uncontradicted measurements establish a violation of a city ordinance.

A violation of a valid city ordinance is negligence per se. Alpine Telephone Corp. v. McCall, 143 Tex. 335, 184 S.W.2d 830 (1944). Once the violation is established the only other finding necessary to subject a defendant to liability is to show the violation of the ordinance was a proximate cause of plaintiff’s injuries. See Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d 99 (Tex.1977).

Under Texas law, proximate cause consists of two elements, which are cause in fact and foreseeability. Missouri Pacific Railroad Co. v. American Statesman, 552 S.W.2d at 103; Farley v. M M Cattle Company, 529 S.W.2d 751, 755 (Tex.1975). Both of these elements must be present to establish liability. Clark v. Waggoner, 452 S.W.2d 437 (Tex.1970). Proximate cause, like any other ultimate fact issue, may be established by circumstantial evidence. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958). Whether a particular act of negligence is a proximate cause of an injury is ordinarily a question for the jury. Clark v. Waggoner, 452 S.W.2d at 440.

The only question in this case is whether there is evidence from which reasonable minds could draw an inference that the violation of the city ordinance was a proximate cause of Mrs. Marshall’s injuries. In relation to the cause in fact element of proximate cause, we believe the evidence warrants the inference that Mrs. Marshall’s fall was contributed to, if not caused, by the narrow aisle. Since the fact of proximate cause was raised, it should have been submitted to the jury. If it is fairly and reasonably deductible from the evidence that Mrs. Marshall’s fall was caused by the narrow aisle, then such inference must be deemed by the trial court to have been admitted as a fact by appellee when it presented its motion for instructed verdict. We think that it can reasonably be said that one of the purposes of the ordinance was to prevent congestion of shoppers in business premises, as occurred in this case.

With regard to the foreseeability element, it is not required that the appellee should have foreseen that this particular action would happen in the exact manner that it did happen. All that is required to satisfy the foreseeability element of proximate cause is “that the injury be of such general character as might reasonably have been anticipated; and that the injured parties should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” Carey v. Pure Distributing Corp., 133 Tex. 31, 35, 124 S.W.2d 847, 849 (1939).

Appellee’s contention that the instructed verdict was proper because the evidence showed, as a matter of law, that the independent act of a third person was the proximate cause of Mrs. Marshall’s fall is without merit. We think the rule laid down in Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952) is applicable here.

In Landers, the Supreme Court held:

Where the tortious acts of two or more wrongdoers join to product an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.

151 Tex. at 256, 248 S.W.2d at 734. The intervention of an unforeseen and unexpected cause is not sufficient to relieve a wrongdoer from the consequences of negligence, if the negligence directly and proximately cooperates with the independent cause in the resulting injury. McAfee v. Travis Gas Corporation, 137 Tex. 314, 153 S.W.2d 442 (1941); Texas Power & Light Co. v. Culwell, 34 S.W.2d 820 (Tex.Comm’n App. — 1931, holding approved). See also Robert R. Walker, Inc. v. Burgdorf, 150 Tex. 603, 244 S.W.2d 506 (1951); J. Weingarten, Inc. v. Benavides, 323 S.W.2d 166 (Tex.Civ.App. — Texarkana 1959, no writ); Henry v. Publix Theatres Corp., 25 S.W.2d 695 (Tex.Civ.App. — Dallas 1930, writ ref’d).

Appellants also complain of the action of the trial court in refusing to permit him to show post accident remedial measures taken by appellee. Appellants’ position is that the rearranging of the aisle by appellee is evidence of negligence. It is well established in Texas that if such evidence is offered for the purpose of showing negligence, it is inadmissible. Roosth & Genecov Production Co. v. White, 152 Tex. 619, 262 S.W.2d 99 (1953). In connection with this rule, Justice Keith has aptly noted, “For aught that appears, defendant may have simply rearranged the store as a housewife frequently rearranges her furniture.” J. Weingarten, Inc. v. Sandefer, 490 S.W.2d 941, 946 (Tex.Civ.App. — Beaumont 1973, writ ref’d n. r. e.).

The judgment of the trial court is reversed and the cause is remanded for a new trial.