author: McGEE, Justice. BARROW, Justice,

text:
    ALBA TOOL AND SUPPLY COMPANY, INC., Petitioner, v. INDUSTRIAL CONTRACTORS, INC., Respondent.
    No. B-8075.
    Supreme Court of Texas.
    July 18, 1979.
    Rehearing Denied Sept. 19, 1979.

      Morris & Lester, Inc., Houston, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for petitioner.
    Shirley, Shirley & Mackey, Michael G. Shirley, Texas City, for respondent.
   McGEE, Justice.

Alba Tool & Supply, Inc. (Alba) brought this action against Industrial Contractors, Inc. (I.C.I.) to recover commissions under a contract. The principal issue is whether the contract is ambiguous so that parol evidence may be admitted to ascertain its meaning. The trial court excluded all parol evidence, and rendered judgment that Alba recover the commissions prayed for. The court of civil appeals reversed the judgment, holding the contract to be ambiguous, and remanded the cause for admission of the parol evidence. 572 S.W.2d 366. We are of the opinion that the contract is clear and unambiguous. Accordingly, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

In 1974 Alba and I.C.I. entered into a two-year contract whereby Alba would have the exclusive right to offer for sale, within a certain area of representation, the products of I.C.I. In exchange for Alba’s “aggressive” promotion of sales, I.C.I. was to pay Alba a commission of five percent of the invoice price. The area of representation was defined in paragraph 4 as follows:

4. AREA OF REPRESENTATION: M. ■ W. Kellogg, Litwin, Fluor Corp.— Houston & L.A., Tellepsen, Hydrocarbon Const., S.I.P., Inc., Shell Oil & Chem., T.D.A. Edwards Engr., Dow Badische, American Lurgi, Lurgi Group, Procon, Weatherby Engr. Celanese Corp. Engr.— Houston Division.

A sentence in paragraph 10, pertaining to new accounts within Alba’s area of representation, further provided that: “ . Alba shall be the exclusive agent of Manufacturer [I.C.I.] to sell such account and its subsidiaries and affiliates.”

I.C.I. subsequently cancelled the contract because, in its opinion, Alba had failed to adequately promote the sales of its products. Alba, in turn, brought this action, claiming a five percent commission in the amount of $80,113.67. I.C.I. defended on the grounds of failure of consideration and ambiguities in the contract.

Trial was to the court. The trial court excluded the testimony of I.C.I.’s president to explain the company’s understanding of the disputed terms, and rendered judgment that Alba recover the commissions prayed for. Findings of fact and conclusions of law were entered that I.C.I. breached the contract prior to its termination date, that Alba had made sales in compliance with the contractual agreement, and that there was no failure of consideration on Alba’s part.

The court of civil appeals reversed the judgment of the trial court, and held the contract to be ambiguous in two respects. First the contractual definition of the area of representation was ambiguous as to which companies were limited to certain area divisions. Second, the use of the terms “exclusive right to offer for sale” and “exclusive agent” in the same contract created an ambiguity, “particularly when . considered in connection with the ‘area of representation’ provision . . 572 S.W.2d at 368. We granted Alba’s application for writ of error.

Alba first contends that the court of civil appeals erred in holding that the area of representation paragraph was reasonably susceptible to more than one meaning. We agree. The rule is that “if a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous.” Universal G.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 517, 243 S.W.2d 154, 157 (Tex.1951) (quoting Lewis v. East Texas Finance Co., 136 Tex. 149, 154, 146 S.W.2d 977, 980 (1941); Wynnewood State Bank v. Embrey, 451 S.W.2d 930, 932 (Tex.Civ.App. — Dallas 1970, writ ref’d n. r. e.).

A fair reading of the paragraph does not indicate that representation is limited to the Houston division of all companies except Fluor, which includes only the Houston and L.A. divisions. Nor does a fair reading reveal that representation is limited to the Houston and L.A. divisions of the first three companies and the Houston division of the remaining ones. Such interpretations would require us to ignore the punctuation used by the parties and would further require us to insert additional words of limitation that were not employed. Instead, a plain reading, as punctuated by dashes and commas, reveals that the only limits as to areas of representation are in reference to Fluor Corp. and Celanese Corp. Representation to Fluor is limited to “Houston and L.A.” and representation to Cela-nese Corp. is limited to the “Houston Division.” Representation to the other listed companies is unlimited.

Alba next attacks the court of civil appeals holding that the use of the terms “exclusive right to offer for sale” and “exclusive agent” in the same contract creates an ambiguity. At the outset we recognize that there is a distinction between an “exclusive agency” and an “exclusive right to sell.” Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 372, 185 S.W.2d 427, 430-31 (1945). In an exclusive agency, the principal has a right to sell without the payment of a commission to the agent. Under an exclusive right to sell, the principal must pay a commission to the agent regardless of the fact that the principal has arranged the sale of the product. Id. at 430-31.

We do not believe, however, that the use of both terms in the same instrument creates an ambiguity. In Lewis v. Smith, 198 S.W.2d 598 (Tex.Civ.App. — Fort Worth 1946, writ dism’d), Smith was appointed “exclusive agent” and was also given the “exclusive right to sell said property.” The court concluded that the contract was clear and unambiguous. It stated:

[The contract] did more than merely name plaintiffs as defendant’s “exclusive agents” but plainly gave them “the exclusive right to sell said property” during the life of the contract.
[W]hen, as in this case, the contract grants exclusive agency and “the exclusive right to sell” along with a promise to pay the commission in case of a sale being made, the owner may not sell to any person, during the life of the contract, whether produced by the agent or not, without incurring liability to the agent for brokerage under the contract.

Id. at 600.

Although the court of civil appeals in the present case took notice of the rule in the Lewis case, it held that the use of both terms in the instant contract created an ambiguity, “particularly when they are considered in connection with the ‘area of representation’ provision . . . .” As aforementioned, we do not believe that the area of representation paragraph is ambiguous; nor do we believe that it creates an ambiguity when read with other parts of the contract. Both parties, by handwritten lines and initials at the beginning of the contract, made clear their intent that Alba was to have an exclusive right to sell. See Southland Royalty Co. v. Pan American Petroleum Corp., 378 S.W.2d 50, 57 (Tex.1964) (court must give effect to handwritten provisions over printed provisions); McMahon v. Christmann, 157 Tex. 403, 407, 303 S.W.2d 341, 344 (1957). Since we hold that there was no ambiguity in the contract, it was not error to exclude the testimony of I.C.I.’s president to explain the company’s understanding of the disputed terms.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

Dissenting Opinion by BARROW, J., in which GREENHILL, G. J., joins.

BARROW, Justice,

dissenting.

I respectfully dissent.

I agree with the holding of the court of civil appeals that the contract in question is ambiguous.

GREENHILL, C. J., joins in this dissent.

      . Paragraph 2 of the contract specifically provides:
      2. Alba shall have the (exclusive) (non-ex-elusive) and (transferable) (non transforablo) right to offer for sale within the Area of Representation defined below products of the Manufacturer .
      The word “non-exclusive” and others were lined through and initialed by the parties to the contract.

      . The court of civil appeals agreed with I.C.I. that the area of representation paragraph was subject to the following interpretations:
      (1)that “area” includes the Houston division of all listed companies except Fluor, which includes the Houston and L.A. divisions;
      (2) that it includes the Houston and L.A. divisions of the first three companies and the Houston division of the remaining ones;
      (3) that it includes the Houston division of Celanese, the Houston and L.A. divisions of Fluor, and the world-wide divisions of the other corporations.
      572 S.W.2d at 368.


source: Caselaw Access Project

author: GREENHILL, Justice.

license: Public Domain

text:
    Jerry SHACKELFORD et al., Petitioners, v. The CITY OF ABILENE et al., Respondents.
    No. B-8103.
    Supreme Court of Texas.
    July 18, 1979.

      McMahon, Smart, Wilson, Surovik & Subtle, Michael S. Baskerville, Abilene, for petitioners.
    Harvey Cargill, Jr., City Atty., David M. Wolpin, Asst. City Atty., Abilene, for respondents.
   GREENHILL, Justice.

Jerry Shackelford, et al., (hereinafter referred to as “Shackelford”) brought this suit seeking injunctive relief prohibiting violations of the Texas Open Meetings Act, article 6252-17, the Texas Open Records Act, article 6252-17a, and the Abilene City Charter, by the members of the Abilene Equal Employment Opportunity Board (hereinafter referred to as the “Board”).

The trial court granted the requested relief and entered a permanent injunction requiring all meetings of the Abilene Equal Employment Opportunity Board to be public and requiring that minutes of those meetings be kept and made available as public records. The Court of Civil Appeals sitting in Eastland reversed the judgment of the trial court and rendered judgment for the Board holding, on the principal question, that Shackelford did not have the proper standing to maintain such a suit. 572 S.W.2d 742 (1978). We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial court.

The parties have stipulated the facts. On November 29, 1977, the Abilene Equal Employment Opportunity Board held a meeting at city hall. This Board was created in 1977 as part of the affirmative action plan of the City of Abilene.

The meeting was held to consider an allegation of employment discrimination against a Mexican-American employee of the City. The Board heard evidence, cross-examination, received exhibits and heard arguments, all in public. The audience at this hearing included many citizens of Abilene, members of the League of United Latin American Citizens, and members of the Abilene news media.

At the conclusion of the presentation of evidence and arguments, the Board, acting upon advice of the City Attorney, retired to deliberate the matter in private. The Board returned in about fifteen minutes and announced that they could not reach a decision at that time.

The Board then recessed for the night and reconvened publicly the following evening. After discussing possible conflicts between the Texas Open Meetings Act and the Abilene City Charter, the Board returned to a private session to consider the charges of racial discrimination. When the Board met in private, it had the consent of the individual complainant.

The Board again deliberated in private for over three hours and then announced that it had reached a decision, and that it would reveal that decision to the complainant on December 5,1977, and to the general public five days later. One of the Board members took notes during the private meeting, but no minutes were taken.

On December 5, 1977, by a written request pursuant to the Texas Open Records Act, article 6252-17a, Shackelford requested the Board to produce the names and final voting record of the Board along with the minutes of the closed session. The information was not furnished.

Later that day Shackelford filed suit seeking a temporary restraining order and an injunction prohibiting the Board from meeting privately and from ignoring the City Charter provision which requires minutes to be kept. The trial court after issuing a temporary restraining order, enjoined the Board from conducting any further closed meetings with respect to this employment discrimination complaint; from taking any vote or reaching any decision not made in public; and from implementing any decision or order reached in the closed meeting. The trial court further ordered the Board to comply with the City Charter by keeping minutes of its meetings and by making those minutes available as it would any other public record.

The Court of Civil Appeals reversed the decision of the trial court and rendered judgment for the Board. It held that under the provisions of the Texas Open Meetings Act, article 6252-17, and under the Abilene City Charter, Shackelford had no standing to enjoin the Board from meeting privately. It further held that although Shackelford did have standing under the Texas Open Records Act, article 6252-17a, to seek the minutes of the meeting, since none were kept, Shackelford could be afforded no relief.

I. Open Meetings.

Shackelford claims a right to require the Board to meet openly under the City Charter of Abilene. We hold that under the City Charter of Abilene, Shackelford has a right to require public meetings. In só holding, we do not rule upon any claim under the Texas Open Meetings Act; nor do we address Shackelford’s claim that as a member of the working press he acquires any special rights not available to the general public.

The current Abilene City Charter was adopted in 1962. It provides in pertinent part:

PUBLIC MEETINGS

Section 122: All meetings of the Council and all Boards or Commissions appointed by the Council shall be open to the public. Minutes of all such meetings shall be kept and such minutes shall constitute public records. [Emphasis added].

It is not disputed that Jerry Shackelford is a member of the public and a citizen of Abilene. Nor is it disputed that the Equal Employment Opportunity Board is a “Board or Commission appointed by the Council . ” as is contemplated by Section 122. The plain meaning of Section 122 is obviously that all meetings of any such board are open to the public. Therefore, Jerry Shackelford and any other member of the public should be able to attend all meetings.

The Board contends that in personnel matters or other issues of a sensitive nature it should have the discretion to hold closed meetings. Indeed, the Texas Open Meetings Act, article 6252-T7(2)g has just such a provision. It states:

(g) Nothing in this Act shall be construed to require governmental bodies to hold meetings open to the public in cases involving the appointment, employment, evaluation, reassignment, duties, discipline, or dismissal of a public officer or employee or to hear complaints or charges against such officer or employee, unless such officer or employee requests a public hearing.

However, as previously stated, the Texas Open Meetings Act does not control this case. Although bound by the Open Meetings Act, the Equal Employment Opportunity Board is also bound by the restraints of the city charter; and in this case, the Abilene City Charter controls. The Open Meetings Act specifically states:

Nothing in this Act shall be construed to allow a closed meeting of a governing body where such closed meeting is prohibited, or where open meetings are required, by charter.

The citizens of Abilene have deliberately chosen to keep all city meetings open. In 1976, an amendment to the Abilene City Charter was proposed which would have, in fact, adopted the personnel exception of the Texas Open Meetings Act cited above. That amendment was soundly defeated by the voters of Abilene. The citizens of Abilene have specifically chosen not to allow any exceptions to the rule that all meetings of its City Council, and boards or commissions appointed by the Council, be open to the public.

Therefore, Jerry Shackelford, as a citizen of Abilene and a member of the public, has a right to attend any meeting of the Board and to enjoin any meeting of the Board which might be closed in violation of the City Charter.

II. Open Records.

The Court of Civil Appeals held that Shackelford was not entitled to the minutes of the closed meeting under the Texas Open Records Act because no minutes were taken. It further held that Shackelford had no standing to contest the failure to furnish these records as required by the Abilene City Charter. We hold that Shackelford has standing and is entitled to the minutes under the Abilene City Charter.

Section 122 of the Abilene City Charter, as set out above, requires that minutes be taken at all meetings of the city council, of boards or of commissions, and that such minutes constitute public records. The Abilene City Charter further states:

PUBLIC RECORDS

Section 123: All public records of every office, department or agency of the City shall be open to inspection by any citizen at all reasonable times, provided that such police records, vital statistic records, or other records which are closed to the public by law shall not be considered public records for the purpose of this Section. [Emphasis added].

Shackelford is a citizen of Abilene and as such is entitled to inspect the minutes of the Board’s hearing just as he would any other public record of the city.

The Board argues that there are no minutes to furnish, despite the fact that Section 122 of the City Charter requires minutes to be kept. While it may well be true that no minutes exist, we have held that the original closed deliberations held by the Board were in violation of the City Charter. If this matter is to be pursued further, the deliberations will have to be held again in compliance with the City Charter; and, in accordance with the judgment of the trial court, the Board should further comply with the City Charter by taking minutes at this meeting and by making them available for inspection as public records.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the trial court is affirmed.

      . Jerry Shackelford is a resident of Abilene and a news reporter for KRBC Television. The other plaintiffs in this action are Abilene Radio and Television Company d/b/a KRBC Television, and Reporter Publishing Company d/b/a Abilene Reporter News.

      . All references are to Vernon’s Texas Civil Statutes Annotated.

      . Also named as defendants were the City of Abilene, its mayor, and the members of the City Council of Abilene. ,

      . It is interesting to note that the Legislature in its most recent session, after the events here in question occurred, amended the Texas Open Meetings Act, article 6252-17(3), to read as follows:
      Any interested person, including bona fide members of the news media, may commence an action either by mandamus or injunction for the purpose of stopping or preventing violations or threatened violations of this Act by members of a governing body. [Emphasis added].

      . Texas Revised Civil Statutes, article 6252-17(2)k. [Emphasis added].


author: POPE, Justice.

text:
    CITY OF HOUSTON, Petitioner, v. SAM P. WALLACE AND CO. et al., Respondents.
    No. B-8192.
    Supreme Court of Texas.
    July 18, 1979.
    Rehearing Denied Sept. 25, 1979.

      Robert M. Collie, Jr., City Atty., Dale M. Tingleaf, Asst. City Atty., Houston, for petitioner.
    Wyckoff, Russell, Dunn & Frazier, Robert L. Adams and Clare K. Steadham, Houston, for respondents.
    Fulbright & Jaworski, Sim Lake, Houston, for Precision Insulation Co.
   POPE, Justice.

City of Houston complains of the trial court’s denial of its motions for mistrial and new trial. It says the basis for the motions was that Maurice Little, its co-plaintiff in a suit against Sam P. Wallace Company, Inc., secretly made a settlement with Wallace Company just before final arguments and then changed his posture by arguing that City of Houston, rather than defendant Wallace Company, was at fault in causing City of Houston’s property damages and Little’s personal injuries. While the jury was deliberating and counsel for City of Houston was absent from the courtroom, Little asked for a nonsuit. City of Houston did not discover the secret settlement nor learn of the nonsuit until one week later. The jury answered special issues adversely to both City of Houston and Little and the trial court rendered judgment that City of Houston take nothing. The court of civil appeals affirmed the judgment. 574 S.W.2d 864. We reverse the judgments of the courts below and remand the cause for another trial.

City of Houston sued Wallace Company and Precision Insulation Company, Inc. for property damages to its water cooling plant at the Houston Intercontinental Airport which resulted from an explosion and fire on October 19,1971. Wallace Company had a contract with City of Houston to construct certain additions to its water cooling plant and Precision Insulation had a subcontract with Wallace Company to perform certain insulation work. Little, an employee of Precision Insulation, in a separate suit against Wallace Company, claimed damages for personal injuries he suffered in the same accident. The trial court consolidated the City’s suit seeking damages for its property loss and Little’s suit seeking damages for his personal injuries. Wallace Company’s answer asked for indemnity against Precision Insulation and Precision Insulation prayed for judgment against City of Houston. The trial court aligned City of Houston and Little as co-plaintiffs and Wallace Company and Precision Insulation as defendants.

Little, an insulator, was assigned the task of insulating some water pipes that were located a few feet above a large metal box-like container in which was housed an electrical switch gear. Little had to use a roll scaffold to climb on top of the switch gear box so he could reach the water pipes that he had to insulate. While Little .was standing on a board that someone had laid across the top of the switch gear box, there was a series of electrical explosions followed by a fire which destroyed the City’s plant and seriously injured Little.

At trial, all the parties had closed their evidence and the court was preparing its charge when Little and Wallace Company settled their differences. They did not tell the court or City of Houston about the settlement; so the court submitted special issues by which both City of Houston and Little sought to establish Wallace Company’s negligence. Another series of issues asked about Precision Insulation’s negligence. Other issues inquired about contributory negligence on the part of City of Houston and also Little. Each party was allowed forty-five minutes to argue to the jury, and each party used the time allotted. City of Houston made the first argument, followed in turn by Little, Wallace Company and Precision Insulation.

City of Houston opened the jury arguments by explaining its theory for fixing liability upon Wallace Company. It read to the jury and urged answers to certain specific issues that would fix responsibility upon Wallace Company. Counsel closed his argument by explaining to the jury that Little’s attorney would follow him, saying: “The reason that is done that way is because the Rules of Civil Procedure provided that we have the burden of proof, Mr. Barker [Little’s counsel] and I after the defendants tell their story we get to have a few more minutes with you to rebut anything they may have said.”

Little’s counsel began his argument by explaining why his client was not contribu-torily negligent and by urging the severity of Little’s injuries. He then wholly switched his direction. He argued that Wallace Company, his ostensible adversary, did not know about the presence of the dangerous condition, did not fail to inspect the premises in the area of the switch gear, did not operate the water lines that ran over the switch gear box, did not fail to perform its work in a good and workmanlike manner, and that the evidence would not support a finding against Wallace Company on those issues. Little’s argument also urged the defeat of his co-plaintiff’s right of recovery against Wallace Company by his argument that City of Houston was operating the electrical equipment in an overloaded condition, as Wallace Company had contended during trial. Little’s counsel told the jury that the overloading issue should be answered against City of Houston, “We do,” and that similar answers should be made to the accompanying negligence and proximate cause issues. Little’s counsel also argued that the jury should answer affirmatively the issue which asked if the water was being run through the pipes at the request and for the benefit of City of Houston. The jury returned a favorable verdict for the defendants, Wallace Company and Precision Insulation, as Little had argued.

The judgment form that was circulated for approval of the attorneys one week after the jury returned its verdict contained a recital that Little had announced to the court during jury deliberations that he wished to take a nonsuit. That was when City of Houston learned for the first time about the settlement and the nonsuit. It promptly filed a motion asking for a mistrial. At the mistrial hearing, counsel for plaintiff Little admitted that “the real consideration for my settlement is the fact that I would not argue negligence against Sam P. Wallace Company.” The court overruled the motion for mistrial and later overruled City’s motion for a new trial based on the same complaint.

At the commencement of the trial, both City of Houston and Little had actions against Wallace Company as their common adversary. The trial court properly and fairly cast them as plaintiffs after the consolidation of the two cases. Rule 174(a), Tex.R.Civ.P. The fairness of the alignment turned into unfairness when, unknown to City of Houston, its ally and confederate became its adversary. City of Houston, under an adversary proceeding, had the burden to develop and present its own case, but it did not have the additional burden to defeat the Trojan Horse that had secretly invaded City’s camp. Counsel for Little switched sides and then undermined his co-plaintiff’s and his own case as alleged.

In -Degen v. Dayman, 200 N.W.2d 134 (S.D.1972), the plaintiff settled with one co-defendant who then changed positions and argued for the plaintiff and against his co-defendant, saying:

I have no doubt, ladies and gentlemen, that in this case you’re going to give Billy Degen a verdict and believe me, in this argument and particularly in a case like this, I think the attorneys have a real responsibility to be candid with the jury, and I’m trying to be with you because this is a very serious case.
There isn’t any doubt in my mind but what you’re going to give Billy Degen a verdict. There isn’t any doubt in my mind that it’s going to be a substantial one.

In reversing the case, the court said:

Not knowing the motive for the evaporation of adversary vigor between plaintiff and Bayman, this benevolent candor coming from a joint tortfeasor could only appear to the jury as a shattering admission.
The protective order was a proper exercise of discretion. However, the responsibility to assure a fair trial is continuous. The court should not have allowed it to be used as a collusive advantage. When that appeared, a limited rescission was necessary to let the adversary process put the issues in perspective.

Little’s counsel had no business making an argument to the jury at all. After his settlement with Wallace Company, Little had no further claim against anybody and no other party had any claim against him. Findings on Little’s issues in no way would affect the claims for indemnity. This was not a comparative negligence case. Candor required a disclosure to the court that Little had no further interest in the case; so the trial judge would not have submitted meaningless special issues that inquired about Wallace Company’s negligence toward Little, Little’s contributory negligence, and his damages. Connell v. B. L. McFarland Drilling Contractor, 162 Tex. 345, 347 S.W.2d 565 (1961); California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); State v. Society for Friendless Children, 130 Tex. 533, 111 S.W.2d 1075 (1938); Gatto v. Walgreen Drug Co., 61111.2d 513, 337 N.E.2d 23 (1975).

Defendant Wallace Company contends that City of Houston waived its complaint because it failed to object to the jury argument, relying upon Turner v. Turner, 385 S.W.2d 230 (Tex.1964), which holds that jury arguments may be cured by instruction after a timely objection is sustained. In Turner, counsel heard and knew about the error but failed to object. The error in this instance was a secret one; it was concealed from City of Houston. Just what objection the City might have made except that it was surprised, is not suggested. As soon as City of Houston learned that Little had secretly settled and had been dismissed, it moved for a mistrial, and it was in that post-trial hearing that it learned for the first time that “the real consideration for my settlement is the fact that I would not argue negligence against Sam P. Wallace Company.”

While the jury was deliberating and at a time when counsel for City of Houston was temporarily out of the courtroom, Little’s counsel orally asked the court to grant a nonsuit in Little’s action against Wallace Company. City of Houston was not informed about the dismissal. We are not impressed with Little’s reasoning that City of Houston should not be heard to complain about the oral procedure because it should have remained in the courtroom. The spirit, if not the letter, of Rule 72, Tex.R.Civ.P., is that motions of any character shall be in writing over the certificate of counsel that a copy was either mailed or delivered to the adverse party. A trial court may entertain a number of oral motions in the course of a trial, but one which disposes of parties to an action, should indeed be in writing and with notice to the parties. See Barton v. Pacific Emp. Indem. Co., 532 S.W.2d 128, 130 (Tex. Civ.App. — Corpus Christi 1975, writ ref’d n. r. e.); Three Bee Inv. Corp. v. Galveston-Houston Co., 166 S.W.2d 382 (Tex.Civ.App. —Galveston 1942, no writ). Whether in writing or not, City of Houston was entitled to know about the dismissal of its co-plaintiff as well as the settlement.

Rule 164, Tex.R.Civ.P., forbids a nonsuit after a plaintiff has introduced all of his evidence other than rebuttal evidence. The term “nonsuit” correctly means a voluntary dismissal of an action which may be refiled. What Little actually requested was a dismissal of his action with prejudice, since his settlement deprived him of the right to refile his action. Of significance, however, is not the terminology but Little’s secret settlement, secret dismissal, and his undisclosed shift of loyalty from City of Houston to the Wallace Company which he had sued.

It is our conclusion that the trial court erred in refusing to grant City of Houston’s motions for mistrial and for new trial by reason of the misalignment of the parties at the argument stage of the trial. The error was such a denial of the rights of City of Houston as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case. Rule 503, Tex.R.Civ.P. From the whole record we conclude that the jury received a distorted and unfair portrayal of the posture of the parties. Little’s counsel told the jury panel on voir dire examination that the evidence would show that Wallace Company was in control of the premises and the construction and that it was the one who was negligent. That was the crucial issue in the case and the one which City of Houston and Little developed during trial. The trial court allowed each of the two plaintiffs only three strikes in the jury selection, and they made their strikes together. They acted together in the presentation of the facts. Just before counsel for City of Houston completed its opening jury argument, he explained to the jury that the City and Little had the burden of proof and for that reason Little’s counsel would argue when City concluded. Then, explained the City’s counsel, the defendants would be permitted to tell their story. Little’s counsel, however, did not argue that he and City of Houston should win. He argued that defendant Wallace Company should win. The jury, apparently believing that Little had been at last convinced of the error of his own contentions, agreed with him and returned a verdict that defeated both Little’s and City of Houston’s causes of action. We conclude that Little’s posture in the case during jury argument was a subterfuge. His real mission was not to win as a plaintiff, but to defeat his co-plaintiff’s action which he did.

Texas adheres to the rule that information about settlement agreements should be excluded from the jury, because the agreement may be taken as an admission of liability. McGuire v. Commercial Union Ins. Co., 431 S.W.2d 347 (Tex.1968); 2 McCormick & Ray, Texas Law of Evidence § 1142 (2d ed. 1956). We recently recognized that an exception to that general rule will be made when a plaintiff and one defendant settle a cause on an agreement that the settling defendant will receive back a percentage of what the plaintiff recovers from the other defendant. General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex. 1977). Defendant General Motors complained and this court held that it should have been permitted to introduce evidence of the “Mary Carter” agreement so it could discredit witnesses for the settling defendant who actually had a financial stake in the success of the plaintiff’s recovery. Defendant Wallace Company insists that the settlement agreement it made is not a Mary Carter agreement, for which reason, General Motors Corporation v. Simmons should not control this case. The Mary Carter agreements and the misalignment of the plaintiffs in this case both possess a more basic vice. Both of them are false and misleading portrayals to the jury of the real interests of the parties and witnesses.

The other defendant in this cause, Precision Insulation, insists that we should affirm the take nothing judgment against it, because it did not participate in the settlement between Little and Wallace Company and because there is no evidence of its negligence. While it is true that it did not participate in the settlement, it was the beneficiary of the arguments by Little’s counsel that it was City of Houston who was in control of the premises on the occasion of the explosion and fire.

The trial was not a fair adversary proceeding.

We reverse the judgments of the courts below and remand the cause to the trial court for another trial.

      . Special Issue No. 12
      Do you find from a preponderance of the evidence that the chilled water lines over the area of the switchgear box were operated by Sam P. Wallace & Co. prior to the occurrence in question without being insulated? Special Issue No. 15
      Do you find from a preponderance of the evidence that by allowing the chilled water lines over the switchgear to be operated prior to being insulated, the contractor, Sam P. Wallace Co., failed to perform its work in a good and workmanlike manner?


author: McGEE, Justice.

text:
    HENRY S. MILLER COMPANY, Petitioner, v. TREO ENTERPRISES et al., Respondent.
    No. B-8096.
    Supreme Court of Texas.
    July 25, 1979.

      Wynne & Jaffe, Harold Hoffman, Dallas, for petitioner.
    Kasmir, Willingham & Krage, Ben L. Krage, Dallas, for respondent.
   McGEE, Justice.

The Henry S. Miller Company brought this action against Treo Enterprises, Sidney S. Smiley, Richard C. Smiley and Leo T. Hyman (hereinafter Treo) to recover the sum of $11,250.00 due under a promissory note. Treo answered and also brought a counterclaim against Miller seeking cancellation of the note and the return of all monies paid thereunder. After a trial to a jury, the trial court rendered judgment that both sides take nothing. Miller appealed, and the court of civil appeals affirmed. 573 S.W.2d 553. We affirm the judgment of the court of civil appeals.

In February of 1975 Miller obtained from the Jones Lake Company the exclusive right to sell a certain warehouse located in Dallas County, Texas. This arrangement was facilitated by the execution of a “CONTRACT OF SALE.” This contract named Jones Lake Company as seller and Henry S. Miller, “trustee and/or assigns,” as buyer. The instrument also named Henry S. Miller as principal agent with the seller expressly agreeing to pay $15,000 upon closing. According to the plan, Miller would acquire an assignee of its purchase rights under the contract of sale.

Subsequent to the execution of the contract, an employee of the Miller Company, Jerry McCutchin, solicited Treo to purchase the warehouse as Miller’s assignee. To finance the $285,000 purchase price, Treo borrowed $60,000 and assumed Jones Lake Company’s current mortgage of approximately $205,000. In order to further reduce the cash outlay, Jones Lake, Miller, and Treo agreed that Treo could deduct the $15,000 commission from the purchase price, and give Miller a promissory note in that same amount. Treo put up $5,000 cash and the transaction was closed on April 15,1975.

Treo made three payments on the note and then advised Miller that it would not make further payments because of certain misrepresentations that Miller had made concerning the property. Miller, in turn, brought this suit on the note. Trial was to a jury, which found that the note was made for the purpose of paying a real estate commission to Miller. It further answered special issues concerning fraud and misrepresentation in Miller’s favor. Judgment was rendered that both sides take nothing, and Miller appealed.

The court of civil appeals affirmed the judgment of the trial court. It held that Miller was precluded from recovering its commission because it failed to plead and prove that it was a duly licensed broker as required by the Real Estate License Act, Tex.Rev.Civ.Stat.Ann. art. 6573a, § 20(a). We granted Miller’s application for writ of error to consider whether article 6573a is applicable to the present suit, and if so, whether Miller complied with its provisions.

It is settled that the Real Estate License Act, Tex.Rev.Civ.Stat.Ann. art 6573a, is a valid exercise of the State’s police power to regulate a private business which affects the public interest. The purpose of the statute is to eliminate or reduce fraud that might be occasioned on the pub-lie by unlicensed, unscrupulous, or unqualified persons. Hall v. Hard, 160 Tex. 565, 571, 335 S.W.2d 584, 589 (1960); Gregory v. Roedenbeck, 141 Tex. 543, 547, 174 S.W.2d 585, 586-87 (1943); Justice v. Willard, 538 S.W.2d 651, 653 (Tex.Civ.App. — Amarillo 1976, no writ). See generally Williston on Contracts § 1765, at 247 (3d ed. 1972); An-dur, The Real Estate License Act — Synopsis, Elaboration and Comments, 12 S.Tex. L.J. 269, 270-72 (1970) (brief history of the Act).

The Act generally binds those persons or business entities which engage in the real estate business. Tex.Rev.Civ.Stat. Ann. art. 6573a, § 1; Macphee v. Kinder, 523 S.W.2d 509, 511 (Tex.Civ.App. — San Antonio 1975, no writ). Specifically, the Act makes it unlawful for a person to act in the capacity of a real estate broker or salesman within this state without first obtaining a real estate license from the Texas Real Estate Commission. Tex.Rev.Civ. Stat.Ann. art 6573a, § 1; Id. § 20(a) (criminal penalties imposed.) Section 20(a) further provides:

A person may not bring or maintain an action for the collection of compensation for the performance in this state of an act set forth in Section 2 of this Act without alleging and proving that the person performing the brokerage services was a duly licensed real estate broker or salesman at the time the alleged services were commenced, or was a duly licensed attorney at law in this state or in any other state.

Id. Texas courts have consistently required a strict compliance with the terms of the Act, where applicable, if a real estate broker or salesman is to use the court for the recovery of fees. Hall v. Hard, 160 Tex. 565, 572, 335 S.W.2d 584, 589 (1960); Raybourn v. Lewis, 567 S.W.2d 908,911 (Tex.Civ. App. — San Antonio 1978, writ ref’d n.r.e.); Elrod v. Becker, 537 S.W.2d 84, 86 (Tex.Civ. App. — Beaumont 1976, writ ref’d n.r.e.); Macphee v. Kinder, 523 S.W.2d 509, 512 (Tex.Civ.App. — San Antonio 1975, no writ).

Miller concedes that it neither plead nor proved that it was a licensed broker but argues that the Real Estate License Act is inapplicable to the present case. Miller reasons that its suit is not an action seeking the recovery of a real estate commission; rather it is an action on a promissory note representing a partial financing of the purchase price of the warehouse. We disagree.

For the purposes of determining the applicability of the Real Estate License Act and the necessity of a license to recover a fee, the substance of the contract is the controlling question, not the form which the transaction ultimately takes. Lehman Brothers, Inc. v. Sugarland Industries, Inc., 537 S.W.2d 121, 123 (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref’d n.r.e.). To hold otherwise would encourage unlicensed entities to develop ingenious devices or other indirections to evade the salutary purposes of the Act. See Coastal Plains Development Corp. v. Micrea, Inc., 572 S.W.2d 285, 289 (Tex.1978); Breeding v. Anderson, 152 Tex. 92, 94-95, 254 S.W.2d 377, 378-79 (1953); Justice v. Willard, 538 S.W.2d 651, 654-57 (Tex.Civ.App. — Amarillo 1976, no writ).

In our opinion this is an action to recover a fee in exchange for brokerage services. Our legislature has recognized that attempts to recover compensation for real estate services may take different forms, including the performance of brokerage services “on the promise of receiving or collecting a fee, commission, or other valuable consideration from another person.” Tex.Rev.Civ.Stat.Ann. art. 6573a, § 2(2). (Emphasis added). In the trial court Miller prayed for recovery of the unpaid portion of the note, and singularly alleged: “Rather than pay a cash brokerage fee, Defendants [Treo, et al.] executed a promissory note (“note”) payable to Henry S. Miller Company for a sum of $15,000.” (Emphasis added). In its motion for judgment Miller further alleged: “It is undisputed that the remaining unpaid balance on the promissory note representing the real estate commission due and owing from Treo Enterprises to Henry S. Miller Company is $11,-250.” (Emphasis added). Under these pleadings, Miller cannot be heard to say at this time that this is a suit on a note representing a partial financing of the purchase price. A case will not be reviewed on a theory different from that on which it was pleaded and tried. American Mutual Liability Insurance Co. v. Parker, 144 Tex. 453, 460, 191 S.W.2d 844, 848 (1945); Askey v. Power, 36 S.W.2d 446, 449 (Tex.Com.App. 1931, holding approved); Phillips v. Inexco Oil Co., 540 S.W.2d 546, 550 (Tex.Civ.App.— Tyler 1976, writ ref’d n.r.e.).

Miller also argues that there is no evidence to support the jury’s finding that the promissory note was made for the purpose of paying a real estate commission. When a party asserts that there is no evidence to support a jury finding, we must review the evidence in its most favorable light, considering only the evidence and inferences which support the finding, and rejecting the evidence and inferences contrary to the finding. Rourke v. Garza, 530 S.W.2d 794, 799 (Tex.1975); Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974); Langlotz v. Citizens Fidelity Insurance Co., 505 S.W.2d 249, 251 (Tex.1974). Although the evidence in this case is somewhat conflicting, there is some evidence to support the jury’s answer to this special issue. The Miller Company agent in charge of the warehouse account testified that the note Treo executed represented a real estate commission to the Miller Company. He further testified that if the Miller Company prevailed in the present suit he would receive his part of the commission out of the award. Richard Smiley, an officer of Treo, similarly testified that the note was executed for the purpose of paying the commission out over a period of time.

Miller directs our attention to Miller v. Aaron, 413 S.W.2d 426 (Tex.Civ.App. — Dallas 1967, writ ref’d n.r.e.) and McCall v. Johns, 294 S.W.2d 869 (Tex.Civ.App. — San Antonio 1956, writ ref’d n.r.e.) for the proposition that the Act is not applicable to the present suit. These cases are distinguishable. In Aaron the court held the Act inapplicable because the summary judgment proof conclusively established that the vendee’s two promissory notes payable to the vendor represented “not a broker’s commission but a part of the purchase price of land.” 413 S.W.2d at 430. On substantially different facts, the note in the present case was found to represent the payment of a real estate commission. The McCall case was a suit by an unlicensed vendee against the real estate agent to enforce an agreement to refund one-half of the commission. The court held the Act inapplicable because the vendee had not performed any real estate services in purchasing the land for himself. 294 S.W.2d at 871. There is no similar issue in the present suit.

We therefore hold that the Real Estate License Act is applicable to the present suit. Miller was required to plead and prove that it was a duly licensed real estate broker in order to recover on the note representing its commission.

In its second point of error Miller alternatively contends that it complied with the Real Estate License Act. Miller points out that the undisputed evidence shows that its employee, the person actually performing the brokerage services, was a licensed broker. This argument was foreclosed by our recent opinion in Coastal Plains Development Corp. v. Micrea, Inc., 572 S.W.2d 285 (Tex.1978). In that case Micrea contended that it had complied with the Act since its president, who performed the brokerage services, was duly licensed at all relevant times. Without expressing an opinion as to whether this fact constituted substantial compliance, we held that substantial compliance would not suffice. We concluded: “An entity seeking to recover compensation for any of the services listed in § 4(1) [amended § 2(2)] of the Act must strictly comply with § 19 [amended § 20(a)] in order to use the courts of this State.” Id. at 289 [citing Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584 (1960); Elrod v. Becker, 537 S.W.2d 84 (Tex.Civ.App. — San Antonio 1976, writ ref’d n.r.e.); Macphee v. Kinder, 523 S.W.2d 509 (Tex.Civ.App — San Antonio 1975, no writ).

In this case Miller plead that: “The property was sold to Treo Enterprises with Henry S. Miller Company acting as selling agent, . . . ” (emphasis added). Miller is the entity whose name appears as principal agent in the contract of sale. Moreover, Miller by this suit seeks to recover the real estate commission in its own name. We therefore hold that Miller failed to comply with Section 20(a) of the Real Estate License Act when it proved that its employee was a licensed broker.

The judgment of the court of civil appeals is affirmed.

      . A “real estate broker” is statutorily defined as:
      . a person who, for another person and for a fee, commission, or other valuable consideration, or with the intention or in the expectation or on the promise of receiving or collecting a fee, commission, or other valuable consideration from another person:
      (A) sells, exchanges, purchases, rents or leases real estate;
      (B) offers to sell, exchange, purchase, rent, or lease real estate;
      (C) negotiates or attempts to negotiate the listing, sale, exchange, purchase, rental, or leasing of real estate;
      (D) lists or offers or attempts or agrees to list real estate for sale, rental, lease, exchange, or trade;
      (E) appraises or offers or attempts or agrees to appraise real estate;
      (F) auctions, or offers or attempts or agrees to auction, real estate;
      (G) buys or sells or offers to buy or sell, or otherwise deals in options on real estate;
      (H) aids, attempts, or offers to aid in locating or obtaining for purchase, rent, 'or lease any real estate;
      (I) procures or assists in the procuring of prospects for the purpose of effecting the sale, exchange, lease, or rental of real estate; or
      (J) procures or assists in the procuring of properties for the purpose of effecting the sale, exchange, lease, or rental of real estate.
      Tex.Rev.Civ.Stat.Ann. art. 6573a, § 2(2) (Vernon Supp. 1978-1979).


author: JOHNSON, Justice.

text:
    The STANDARD FIRE INSURANCE COMPANY, Petitioner, v. Christy Jean Wand LaCOKE, Respondent.
    No. B-8203.
    Supreme Court of Texas.
    July 25, 1979.
    Rehearing Denied Sept. 19, 1979.

      Bailey, Williams, Westfall, Lee & Fowler, C. Edward Fowler, Jr. and Stephen G. Koerner, Dallas, for petitioner.
    Law Offices of Windle Turley, Larry D. Morris and Larry Hayes, Dallas, for respondent.
   JOHNSON, Justice.

The question presented for our decision in this case is whether a petition filed one day late should be deemed to be timely filed when the undisputed cause of the delay was the act of a deputy district clerk. After trial to a jury, the trial court rendered judgment on the verdict dismissing Standard Fire Insurance’s cause for want of jurisdiction and granting Christy Jean Wand LaCoke judgment on her suit to mature the award of the Industrial Accident Board. The court of civil appeals, with one member concurring and one dissenting, affirmed. 574 S.W.2d 802. We reverse the judgments of the trial court and the court of civil appeals and remand this cause for a new trial.

The Industrial Accident Board rendered its decision awarding LaCoke approximately $21,000 as compensation for work-related injuries on May 7,1976. Standard Fire was required by statute to notify the Board of its intention to appeal the award within twenty days from the date thereof. Tex. Rev.Civ.Stat.Ann. art. 8307, § 5. Standard Fire filed notice with the Board on May 14, well within the twenty-day period. The same statute further required that Standard Fire bring suit to set aside the award within twenty days after giving its notice of appeal, making June 3, 1976 the last day on which Standard Fire could file its petition. Standard Fire’s original petition was file-marked in the district clerk’s office at 7:51 a. m. on June 4, 1976, one day late.

The reasons for the delay are undisputed. All mail for the Dallas County Courthouse complex is routed through a United States post office substation, known as the VIM Room. The VIM Room is located in the Dallas County Records Building, which is one block away from the district clerk’s office. The VIM Room post office in 1976 had a policy of making two mail deliveries per day, one at 8:30 a. m. and the other at 11:00 a. m. Standard Fire’s petition, which was contained in a properly stamped and addressed envelope, arrived at the VIM room on June 3 after the 8:30 a. m. mail delivery but in time for the 11:00 a. m. second delivery. In the normal course of affairs the VIM Room postman would have delivered the petition to the clerk’s office by noon on June 3, and it would have been timely filed.

Unknown to Standard Fire or the district clerk, however, a deputy district clerk had instructed the postman not to deliver the second mail. Instead, the deputy district clerk would go to the VIM Room the following morning, before the regularly scheduled first mail delivery at 8:30 a. m., and pick up the previous day’s undelivered mail. This practice had been going on for two years without the knowledge or consent of the district clerk. As a consequence, Standard Fire’s petition, which was in the VIM Room on June 3, was delayed one day, until June 4, at which time it was picked up by the deputy district clerk and filed. The district clerk first learned of this practice as a result of the instant case, whereupon he° promptly requested the post office to resume making both regularly scheduled deliveries. It is undisputed that the only reason the post office ceased delivering the second mail was because of the deputy district clerk’s request that it do so. In the words of the postman himself:

“Two deliveries a day are available, and I normally do make two deliveries daily to the county offices, except for those who do not want a second delivery. The only reason that I do not deliver mail twice a day to the District Clerk’s office is that they [i. e., the deputy district clerk] do not want this service.”

The rule is firmly established that the twenty-day period for filing a petition is mandatory and jurisdictional. Failure to file within the statutory period leaves the court without jurisdiction over the case. Clawson v. Texas Employers Insurance Ass’n, 475 S.W.2d 735, 737-38 (Tex.1972); Richards v. Consolidated Underwriters, 411 S.W.2d 436 (Tex.Civ.App.-Beaumont 1967, writ ref’d); Oilmen’s Reciprocal Ass’n v. Franklin, 116 Tex. 59, 286 S.W. 195 (1926); Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926). This court has only recently had occasion to reconsider the strictness of the twenty-day period as it relates to giving notice of intention to appeal to the Industrial Accident Board. Ward v. Charter Oak Fire Insurance Co., 579 S.W.2d 909 (Tex. 1979). Ward relaxed the strictness of the rule by applying a notice provision similar to that found in Rule 5 of the Texas Rules of Civil Procedure. There is no need to adopt the Ward approach in the case at bar. The question in this case, as we see it, is simply whether or not Standard Fire’s petition was timely filed.

A civil suit in the district or county court is commenced by a petition filed in the office of the clerk. Tex.R.Civ.P. 22. The Rules of Civil Procedure provide that “the filing of pleadings . . . shall be made by filing them with the clerk of the court,” with an exception not here relevant. Tex.R.Civ.P. 74. The rule is traditionally stated to be that an instrument is deemed in law filed at the time it is left with the clerk, regardless of whether or not a file mark is placed on the instrument and regardless of whether the file mark gives some other date of filing. Turner v. State, 41 Tex. 549 (1874); Holman v. Chevaillier, 14 Tex. 337 (1855); Beal v. Alexander, 6 Tex. 531 (1855). See Hughes v. Atlantic Refining Company, 424 S.W.2d 622 (Tex. 1968); Consolidated Furniture Company v. Kelly, 366 S.W.2d 922 (Tex.1963); Hanover Fire Ins. Co. v. Shrader, 89 Tex. 35, 33 S.W. 112 (1895); 2 R. McDonald, Texas Civil Practice, § 5.20 (1970); 5 Baylor L. Rev. 67 (1952).

The purpose of this rule is to protect a diligent party from being penalized by the errors and omissions of the court clerk. For example, it has been held that a file mark on a document dated two days after the date of judgment would be ignored when the judgment contained a recital that the document was part of the record and properly before the court. Lessing v. Gilbert, 8 Tex.Civ.App. 174, 27 S.W. 751 (1894, no writ). As relevant to this case, there have been instances where the jury was called upon to decide whether the clerk’s file mark was accurate or whether the petition in question actually was filed with the clerk within the twenty days prescribed by law. Kirby v. Travelers Insurance Co., 370 S.W.2d 912 (Tex.Civ.App.-Beaumont 1953, writ ref’d n. r. e.); Texas Indemnity Ins. Co. v. Williamson, 109 S.W.2d 322 (Tex.Civ. App.-El Paso 1937, writ dism’d). In a related vein, this court has held clerks subject to writs of mandamus for their refusal to transmit applications for writ of error to this court because they believed the cases were without merit, again indicating that the substantive rights of a party may not be thwarted by the misconduct of a clerk. Wagner v. Garrett, 114 Tex. 362, 269 S.W. 1030 (1925); Reeves v. Roseborough, 114 Tex. 344, 267 S.W. 973 (1925).

More recently, this court has stated that an instrument is deemed filed when it is placed in the custody or control of the clerk. Glidden Company v. Aetna Casualty & Surety Company, 155 Tex. 591, 291 S.W.2d 315 (1956). In Gonzalez v. Vaello, 91 S.W.2d 904 (Tex.Civ.App.-San Antonio 1936, writ dism’d), the clerk was absent from his office so the plaintiff placed his petition in a mail box in the clerk’s office. Although the plaintiff did this within the prescribed time limits, the petition was not filed by the clerk until two days after time had run. The court of civil appeals there held that the petition was timely filed inasmuch as the plaintiff had done all he could to timely file the instrument, the instrument was within the custody and control of the clerk, and since any delay was due to the absence of the clerk. .

There can be no doubt that Standard Fire’s petition in this case was within the effective control of the deputy district clerk, even though it was not within his actual physical possession. The petition would have been delivered to the clerk’s office on time but for the act of the deputy district clerk, this conclusion is made more compelling by consideration of a slightly altered state of facts. Assume that the deputy district clerk had instructed the post office to stop delivering mail for an entire week and that the post office complied with this request. It could not seriously be contended that the affected parties should be penalized for the clerk’s actions. Standard Fire’s position is no different in principle than the hypothetical example we pose. Consequently, we hold that Standard Fire’s petition should be deemed in law to be timely filed.

We reject as inapplicable LaCoke’s argument that Standard Fire, having chosen the post office as its agent for delivery, should be bound by any delays caused by the post office. The cause of the delay was the deputy district clerk, not the post office. Cf. Ward v. Charter Oak Fire Insurance Co., supra, 579 S.W.2d at 910. We further reject LaCoke’s argument that our holding today will impose some new duty on the clerk to check the post office continuously each day so as to retrieve and file any late-arriving mail. The duty imposed on the clerk is one under which he already operates: to file such papers as are tendered for filing and to place no obstruction in the paths of parties attempting to file same. See Tex.R.Civ.P. 24.

The judgments of the court of civil appeals and the trial court are reversed. This cause is remanded to the trial court for trial on the merits.

      . The relevant portions of Section 5 are as follows:
      “Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred to set aside said final ruling and decision, and said Board shall proceed no further toward the adjustment of such claim, other than hereinafter provided.
      “If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto; and, if the same is against the Association, it shall at once comply with such final ruling and decision; and failing to do so, the Board shall certify the fact to the Commissioner of Insurance, and such certificate shall be sufficient cause to justify said Commissioner to revoke or forfeit the license or permit of such Association to do business in Texas.”


author: DALLY, Judge.

text:
    Thomas Earl HONEA, Appellant, v. The STATE of Texas, Appellee.
    No. 57892.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 27, 1979.
    Rehearing En Banc Denied Sept. 19, 1979.

      Frank B. Murchison, court appointed, Corsicana, for appellant.
    Patrick C. Batchelor, Criminal Dist. Atty., Corsicana, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment is imprisonment for ninety-nine years.

Appellant asserts that the evidence is insufficient to sustain his conviction because the State failed to prove the corpus delicti; there is a fatal variance between the allegations of the indictment and the proof; V.T. C.A. Penal Code, Sec. 29.03 is unconstitutional; appellant’s confession was involuntary and was improperly admitted in evidence; the trial court’s written findings of fact and conclusions of law regarding the voluntariness of the confession are insufficient; the court’s charge was in error; the prosecutor improperly withheld evidence favorable to the defense; and the court should have granted appellant’s motion for new trial in light of newly discovered evidence.

On the morning of January 7, 1977, the body of Fred Cornelius, the stock manager of Westbrook Farms near Corsicana, was found lying face down on the dusty floor of a barn. Cornelius’ hands were bound behind his back, his feet were bound, and he was gagged. Dr. John Barnes, a pathologist, testified that Cornelius died from suffocation caused by the aspiration of vomitus into his lungs. There were dust particles in Cornelius’ nose, and according to Dr. Barnes the inhalation of dust likely caused Cornelius to cough which then led to the vomiting and suffocation.

Appellant confessed to robbing Cornelius. In his confession appellant stated that he and Mike Reagan waited in the barn for Cornelius and when Cornelius entered they grabbed him, threw him down and bound and gagged him. They then took money in the amount of $1,200 from Cornelius’ shirt pocket, and left.

Mrs. Willie Cornelius, the victim’s wife, testified that after he got up on the morning of the offense her husband put a large roll of money in his shirt pocket. According to Mrs. Cornelius her husband customarily carried large amounts of cash totaling over $1,000 in his shirt pocket. On cross-examination by appellant’s counsel Mrs. Cornelius testified that, although she could not remember if she had actually been present when her husband put the money in his pocket, she was sure he had the money because she could see the bulge in his pocket, and she could tell that it was money in his pocket. In response to continued cross-examination concerning how she knew that there was money in the pocket, Mrs. Cornelius stated “. . . the material of the shirt was very thin. I made the shirt myself, and I could see through it.”

Appellant contends that the testimony of Mrs. Cornelius was insufficient to show that her husband was carrying any money, hence, the corpus delicti of the crime was not proved independent of appellant’s confession. Appellant invites this Court to examine the shirt, which is included in the record, and determine for ourselves that the material of the pocket is too thick to see through. We decline to do so, however, because the remainder of Mrs. Cornelius’ testimony was sufficient for the trier of fact to have concluded that Mr. Cornelius was carrying money on the day of the offense, prior to leaving for the barn. We leave the assessment of the credibility of Mrs. Cornelius’ testimony to the jury. It was only necessary that the jury believe the deceased was carrying some money which was taken in the robbery. It was not necessary for the State to prove by Mrs. Cornelius’ testimony or any other evidence the amount of money the deceased was carrying in his shirt pocket.

Moreover, proof of the corpus delicti need not be made independent of an extrajudicial confession. If there is some evidence corroborating the confession, the confession may be used to help establish the corpus delicti. Valore v. State, 545 S.W.2d 477 (Tex.Cr.App.1977); Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974). Appellant confessed that he bound and gagged Mr. Cornelius and took $1,200 from his shirt pocket. This evidence aided in the establishment of the corpus delicti. No error is shown.

Appellant contends that there is a fatal variance between the indictment and the proof at trial in that the indictment alleged that appellant caused Cornelius “serious bodily injury,” and the proof showed only that appellant caused Cornelius’ “death.” Appellant urges that death is not a serious bodily injury. The State’s proof showed that Cornelius inhaled dust which led to the aspiration of vomitus which caused his death. These physical conditions qualify as bodily injuries under V.T.C.A. Penal Code, Sec. 1.07(a)(7), and were concurrent causes of his death. “Serious bodily injury” is defined in part in Sec. 1.07(a)(34) of the penal code as “bodily injury that . causes death . . ” No variance exists.

Appellant contends there is a fatal variance between the allegations of the indictment and the proof because the State failed to show that appellant “intentionally and knowingly” caused serious bodily injury. Appellant points to a statement he made in his confession that he did not intend to kill the deceased. It is well settled that one who, intending to commit a felony, accidentally commits another felony, is guilty of the felony actually committed. The intent to commit the contemplated offense transfers to the offense in fact committed. See V.T.C.A. Penal Code, Sec. 6.04, which is derived from Art. 42, V.A.P.C.; Sargent v. State, 518 S.W.2d 807 (Tex.Cr. App.1975); Hilliard v. State, 513 S.W.2d 28 (Tex.Cr.App.1974). Appellant clearly intended to rob Cornelius; his acts resulted in the offense of aggravated robbery, and he is guilty of that offense. No variance exists.

Appellant contends that the State only proved that appellant acted “recklessly,” or with “criminal negligence,” and that a fatal variance exists for this reason. Our answer to the preceding contention answers this contention as well.

The indictment in this case alleged that appellant caused Cornelius serious bodily injury “by striking the said Fred Cornelius and binding his arms and legs and leaving him lying on a dusty barn floor.” Appellant contends that a fatal variance exists between the indictment and proof because the proof showed that Cornelius’ serious bodily injury and death resulted from being gagged, and that is not alleged in the indictment. Dr. Barnes testified that, although it was less likely, Cornelius might have died had he not been gagged, but merely bound and left on the dusty floor. Thus we cannot say that the gag was a necessary cause of Cornelius’ death, and that without the gag he would have survived. Moreover, even if the gag was a cause of death, Cornelius was forced to breathe the dust from the floor only because appellant bound him and left him lying on the floor. These acts, which were alleged in the indictment, were concurrent causes of the death of Cornelius. Cornelius would not have died had appellant not done those acts. There is not a fatal variance as appellant suggests.

Appellant urges that Sec. 29.03 of the penal code, the aggravated robbery statute, is unconstitutional for vagueness. Generally, a statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. See McMorris v. State, 516 S.W.2d 927 (Tex.Cr. App.1974). Sec. 29.03, supra, is not unconstitutionally vague, and this contention is without merit.

Appellant contends that his confession was involuntary. Appellant testified at a Jackson v. Denno hearing held prior to trial that Navarro County Deputy Sheriffs Bob Rehders and Grady McCall interrogated him, and continued their interrogation despite his. request to see an attorney. Appellant further testified that the officers told him “they were going to see that I would be the first man in Navarro County since the death penalty had come back in to be burned in the electric chair.” Appellant testified that the officers had Shirley Peery, whom appellant had been dating, come talk to him, and then told him they would only release her if appellant would make a statement. Finally, appellant testified that the officers told him they would talk to the District Attorney and try to make things go easier for him if he would make a statement. Appellant testified that he would not have made the statement in absence of these inducements.

Officer Rehders testified that appellant was arrested, informed of his constitutional rights, then taken to the county jail where he was read his rights again by a magistrate. When asked by the magistrate whether he understood his rights appellant replied that he did. Appellant did not request a lawyer. Rehders and McCall then read appellant his rights once more before they began questioning him. After being questioned for a while appellant told the officers he wanted to think it over, and the officers took him to a cell. When appellant was brought back to the interrogation room Peery was there, and he talked with her. Subsequently, after being read his rights again, appellant made a confession, which was tape recorded and reduced to a written statement. Appellant read the statement and signed it in the presence of the officers.

Both officers testified that appellant never stated that he wished to see a lawyer. They also testified that appellant was not promised anything, or threatened, physically abused, or otherwise coerced into making the confession. The transcription of the tape recording, which is included in the record, reveals that at the conclusion of the taping of the statement appellant verbally acknowledged that he had not been threatened, coerced, or promised anything, and stated that the statement was made of his own free will.

McCall testified that appellant himself requested to see Peery when they told him she was at the jail. McCall denied that he told appellant they would let Peery go if appellant would confess. Both officers testified that Peery was not being held on any charges, and Peery herself testified to the same effect. She was released later that evening.

Rehders testified that he told appellant he would pass the word on to the District Attorney that appellant had cooperated, but only in connection with appellant’s cooperation in the investigation of another case, and this occurred after appellant had made his confession in the instant case. Rehders acknowledged that he made a statement concerning the possibility of appellant’s going to the electric chair, but testified that he was only informing appellant that the death penalty had been reinstated. Appellant was originally charged with capital murder. Rehder denied that he told appellant if he did not cooperate he would be electrocuted.

The .officers either denied or explained each of appellant’s specific assertions of improper inducement. See Young v. State, 547 S.W.2d 23 (Tex.Cr.App.1977); Farr v. State, 519 S.W.2d 876 (Tex.Cr.App. 1975). There was no evidence of any express or implied threat or promise with regard to the release of Peery. See Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977). Nor did Rehders actually threaten to do what he could to send appellant to the electric chair if he did not cooperate or sign a confession. Contrast Sherman v. State, 532 S.W.2d 634 (Tex.Cr.App.1976). Appellant acknowledged at the taping session that he was making the statement of his own free will and without being improperly induced. The evidence was sufficient for the trial court at the hearing, and the jury at the trial, to have concluded, in their capacities as the triers of fact, that the statement was made voluntarily. See Hammett v. State, 578 S.W.2d 699 (Tex.Cr. App.1979) (Opinion on State’s Motion for Rehearing); McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976); Horne v. State, 508 S.W.2d 643 (Tex.Cr.App.1974); Aranda v. State, 506 S.W.2d 221 (Tex.Cr. App.1974).

Appellant complains that certain portions of the confession should have been excluded from evidence. Specifically, appellant complains of hearsay statements made to appellant by codefendant Reagan, and statements concerning appellant’s drinking and partying before and after the commission of the offense. Although not all the statements within the confession were based on appellant’s first-hand knowledge, it is generally not required that admissions be based on first-hand knowledge. Inasmuch as he is making a statement against his interest, it is assumed the speaker has made an adequate investigation concerning the matter asserted. See McCormick, Evidence, Sec. 263, p. 632 (2d ed. 1972). The other statements complained of described what appellant was doing shortly before and after he committed the offense, and were admissible to show the complete context in which the criminal act occurred. See Hanner v. State, 572 S.W.2d 702 (Tex. Cr.App.1978)

Appellant complains that the trial court’s findings of fact and conclusions of law on the voluntariness of appellant’s confession were insufficient as a matter of law. We have reviewed the court’s findings and conclusions, and they are commendably specific and complete. In Sinegal v. State, 582 S.W.2d 185 (Tex.Cr.App.1979), we held that the trial court is not required to make findings with “minute specificity,” as appellant appears to suggest. See also Davis v. State, 499 S.W.2d 303 (Tex.Cr.App.1973) (Opinion on State’s Motion for Rehearing); Encina v. State, 471 S.W.2d 384 (Tex.Cr.App.1971). No error is shown.

Appellant complains of the trial court’s refusal to instruct the jury that appellant’s confession had to be corroborated by evidence of the corpus delicti. When the corpus delicti is established by other evidence, no such charge is necessary. Aranda v. State, 506 S.W.2d 221 (Tex.Cr. App.1974); Engledow v. State, 407 S.W.2d 789 (Tex.Cr.App.1966). As previously discussed, the corpus delicti in this case was sufficiently established. No error is shown.

Appellant complains of the court’s refusal to charge on circumstantial evidence. Appellant’s confession supplied direct evidence that he committed the offense charged. No charge on circumstantial evidence was necessary. See Jackson v. State, 548 S.W.2d 685 (Tex.Cr.App.1977); Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr. App.1977); Patterson v. State, 416 S.W.2d 816 (Tex.Cr.App.1967).

Appellant urges that the court should have charged the jury on mistake of fact. As we have already pointed out, if, intending to commit one felony, a defendant commits another felony by mistake, he is nonetheless guilty of the felony actually committed. There is no doubt that appellant intended to rob Cornelius; no mistake of fact issue was raised. See V.T.C.A. Penal Code, Sec. 8.02.

Appellant urges that the court erred when it failed to charge the jury that unless they disbelieved the exculpatory statements in appellant’s confession, they should acquit the appellant. Appellant did not request a charge to this effect, or object to the court’s charge on this ground. No error is preserved.

Appellant complains of the prosecutor’s failure to disclose, pursuant to appellant’s motion for discovery, that Mrs. Cornelius would testify that she knew her husband was carrying a roll of money in his pocket because she was able to see through the material of his shirt pocket. This contention is without merit. The prosecutor testified on the hearing on appellant’s motion for new trial that he did not know that Mrs. Cornelius would testify that she was able to see through the material. Moreover, although appellant claims he was completely surprised by the testimony, he did not claim surprise at the trial.

Finally, appellant contends that his motion for new trial was improperly denied because the shirt which Mr. Cornelius wore on the day of the offense, which was admitted in evidence at the hearing, constituted newly discovered evidence which justified a retrial. To authorize a new trial it generally must be shown that the evidence was unknown to the movant before the trial, that his failure to discover it was not due to his want of diligence, that its materiality was such as would probably bring about a different result on another trial, and, generally, that it was competent, and not merely cumulative, corroborative, collateral, or impeaching. Watkins v. State, 438 S.W.2d 819 (Tex.Cr.App.1969); 41 Tex.Jur.2d, New Trial, Sec. 105, p. 253. Appellant’s counsel knew of the shirt and its whereabouts for at least a month before trial. He talked to the prosecutor about offering it in evidence at the trial, but never made an effort to obtain possession of the shirt. Appellant’s counsel did not move for a continuance during the trial. The shirt’s chief evidentiary value would only have been to impeach Mrs. Cornelius’ testimony. The court did not abuse its discretion in refusing to hold a new trial.

The judgment is affirmed.


author: CLINTON, Judge. DALLY, Judge,

text:
    Douglas DANIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 56063.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 21, 1979.
    Rehearing Dénied Sept. 19, 1979.
    Roy L. Merrill, Jr., Marc H. Richman, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., Steve Wilen-sky and Winfield W. Scott, Asst. Dist. At-tys., Dallas, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

This is an appeal from a conviction for murder pursuant to V.T.C.A., Penal Code Section 19.02(a)(1). The jury assessed appellant’s punishment at twenty years in the Texas Department of Corrections.

Appellant raises twenty-nine grounds of error, among which he asserts the trial court erred in admitting at .the penalty phase, over timely objection, indicia of a 1972 Louisiana conviction as “evidence of [his] prior criminal record” when there was no independent identification of appellant as the person convicted in Louisiana.

At the punishment phase, the State was prepared to offer as State’s Exhibit No. 41 an authenticated certified copy from the records of the Recorder of Caddo Parish, Louisiana, of the information filed in Cause No. 92,803, which purported to charge appellant with the offense of theft of property over the value of $500.00. Included in the exhibit was a document entitled “Minutes of the Court” which recited:

“Shreveport, Louisiana, Friday, September 22, 1972. Court met this day pursuant to adjournment, His Honors Judges John F. Fant, C. J. Bolin, Jr., and James R. Alexander, presiding. The reading of the Minutes was dispensed with and the following proceedings were had, to-wit:
BEFORE JUDGE C. J. BOLIN, JR.
92,803 State of Louisiana vs. Neil Douglas Daniel
THEFT
The accused, being present with his counsel, Joseph F. Giglio, was arraigned and pled guilty to Theft of a value in excess of $100.00 and less than $500.00, which plea was accepted by the State. Before accepting the plea of guilty the Court inquired of the defendant if he understood that by entering a plea of guilty he was waiving his right to trial by jury, waiving his rights against compulsory self-incrimination and waiving the right to be confronted by the witnesses against him. The defendant replied affirmatively. The District Attorney made a statement of the facts and then confirmed their correctness. The Court then inquired of the defendant if he was aware of the nature of the charge and the maximum possible penalty therefor and whether the plea of guilty was freely and voluntarily made. The defendant again replied affirmatively. Whereupon, the Court accepted the defendants plea of guilty to Theft of a value in excess of $100.00 and less than $500.00. Whereupon, he was sentenced to pay a fine of $200.00 and costs or, in default thereof, to serve 30 days in jail, and in addition to serve six (6) months in jail. The Court ordered that the balance of the six (6) months jail sentence be suspended and defendant be placed on supervised probation for a period of twenty-four (24) months and that he be given credit for the time served from August 11, 1972 to August 31, 1972. The proceedings had in this case this day were recorded by the Court Reporter.”

In order to identify appellant as the person convicted of theft on September 22, 1972 in Louisiana Cause No. 92,803, the State called Dallas County Deputy Sheriff James Cron, a fingerprint expert. Deputy Cron testified that he was a custodian of the records maintained by the Dallas County Sheriff’s Office, including those of the County Identification Bureau. Cron explained that it is the normal course of business in “booking-in” jail inmates for the Sheriff’s Office to preserve on a “jail card” the name and brief description of the person, the charge against him and “any number pertaining to that charge.” Thereafter, the jail card goes to the Identification Bureau where the person’s right index fingerprint is placed on the card. When the person is released from jail, another right index fingerprint is placed on the card “to assure that the same person that entered the jail is the same person that left.”

Cron identified State’s Exhibit No. 45 as being a jail card which reflected that Neil Douglas Daniel had been booked into the Dallas County Jail on January 12, 1973 at 9:30 a. m.; the offense was recorded as “probation check” and the stated reason for release was “probation completed.” The date and time of release entered were January 12, 1973 at 9:30 a. m. A space for “remarks” reflected the entry: “attempted felony theft # 92803 Louisiana probationer.” According to Cron, the two fingerprints on State’s Exhibit No. 45 were identical to those recently taken by him from the appellant.

When the State offered the exhibit into evidence, appellant objected on the ground, among others, that appellant’s identity had not been established as that of the person convicted in Louisiana as reflected by the records contained in State’s Exhibit No. 41. This objection was overruled, and Deputy Cron was permitted to affirm the fact that this defendant’s fingerprints appeared on the jail card would mean “that he was checked in and checked out of jail on the . . . case number [which] appears” on Exhibit No. 45.

The State then offered State’s Exhibit No. 41, the Louisiana records of conviction, into evidence. Appellant objected on all previously stated grounds “and further .2 . to no identification.” This objection was overruled and the prosecutor explained the import of the exhibit to the jury.

Now appellant complains that the trial court erred in overruling his objection to the admissibility of State’s Exhibit No. 41, and alleged out of state conviction, because there was insufficient evidence to identify the appellant as being the person named and convicted in Exhibit No. 41.

This Court has approved several different means by which it may be proved that a defendant is the person previously convicted. They include: (1) Testimony of a witness who personally knows the defendant and the fact of his prior conviction and identifies him; Ward v. State, 505 S.W.2d 832 (Tex.Cr.App.1974); Jones v. State, 500 S.W.2d 661 (Tex.Cr.App.1973); Vasquez v. State, 491 S.W.2d 173 (Tex.Cr.App.1974); See also Smith v. State, 489 S.W.2d 920 (Tex.Cr.App.1973); and Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971); (2) Stipulation or judicial admission of the defendant that he has been so convicted; Garza v. State, 548 S.W.2d 55 (Tex.Cr.App.1977); Bolin v. State, 475 S.W.2d 241 (Tex.Cr.App. 1971); Blake v. State, 468 S.W.2d 400 (Tex. Cr.App.1971); See also Smith v. State, supra, and Cain v. State, supra; (3) Introduction of certified copies of the judgment and sentence and record of the Texas Department of Corrections or a county jail including fingerprints of the accused supported by expert testimony identifying them with known prints of the defendant; Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Bullard v. State, 548 S.W.2d 13 (Tex.Cr. App.1977); Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App.1976); Blake v. State, supra; Cleveland v. State, 493 S.W.2d 145 (Tex.Cr. App.1973); Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App.1971); Vessels v. State, 432 S.W.2d 108 (Tex.Cr.App.1968); See also Smith v. State, supra, and Cain v. State, supra; and (4) Comparison by the fact finder of a record of conviction which contains photographs and a detailed physical description of the named person, with the appearance of the defendant, present in court. Gollin v. State, 554 S.W.2d 683 (Tex.Cr.App. 1977).

In support of its opposition to appellant’s ground of error, the State cites Babcock v. State, 473 S.W.2d 941 (Tex.Cr.App. 1971) and Jones v. State, 500 S.W.2d 661 (Tex.Cr.App.1973), but both are inapposite. In Babcock, supra, the fingerprints compared with those recently taken from the accused accompanied the authenticated penitentiary record reflecting a prior conviction. Likewise, in Jones, supra, the Sheriff’s Office jail card used to identify the accused as the person convicted in a certain cause’s judgment, docket sheet and motion to revoke probation brought forth by a Deputy District Clerk from official records in her custody, were both from official Harris County records. In addition, a Harris County Assistant District Attorney identified appellant as the same person against whom he had filed the referenced motion to revoke probation. Furthermore, this Court determined that the reliability of the jail card was shown not only by the testimony of the Deputy Sheriff, but also by notations in the docket sheet which corroborated the facts of appellant’s arrest on a certain day pursuant to the motion to revoke, as well as setting of a bond for the probationer. A search of our cases reveals that fingerprints which have been used to provide independent identification of a person convicted have invariably been a part of the record of conviction, obtained from the same governmental entity.

However, the State argues that because both the jail card and Louisiana Parish records exhibits met the requirements for admission of either the Business Records Act (Art. 3737e, V.A.T.C.S.) or the Official Records Act (Art. 3731a, V.A.T.C.S.), the reflection by both exhibits of an identical cause number provides sufficient connection between appellant and the Louisiana conviction to admit the latter as part of the former’s “prior criminal record.” We disagree.

We accept the truth of the matters asserted in the jail card (Exhibit 45) because it was admitted by the trial court as an exception to the prohibition against hearsay evidence; however, we find no matter asserted within the exhibit which supplies verification that the person — identified as appellant by Cron’s expert testimony — who was both booked in and out of the Dallas County Jail at 9:30 a. m. on January 24, 1973 pursuant to a “probation check” was the same person actually convicted of theft and placed on probation in Caddo Parish, Louisiana on September 22, 1972, in Cause No. 92,803. See Rose v. State, 507 S.W.2d 547 (Tex.Cr.App.1974). Therefore, because of the exhibit’s failure to establish appellant’s identity, it had no relevance to the proceeding and was inadmissible. Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973).

The State wholly failed to show by independent testimony that appellant was the identical person convicted in Louisiana in 1972 and the admission of State’s Exhibit 41 was error. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976); Rose v. State, supra; Chaney v. State, 494 S.W.2d 813 (Tex.Cr. App.1973); Vessels v. State, supra.

According to the uncontradicted statement of appellant, which was the only direct evidence of the murder, he had met his co-defendant, Robert Robinson, for the first time earlier on the day of the murder, and had agreed to meet with him later. Appellant accompanied Robinson on what appellant claimed he thought was a trip to sell the murder victim “some pills.” At the scene of the murder, after receiving $100.00 from the deceased, Robinson held a sawed off shotgun on him and ordered him to lie down on the ground. Robinson shot the victim in the back of the head then looked at appellant and asked “aren’t [you] going to shoot him?” and handed appellant a .38 revolver. Appellant shot the victim twice with the pistol. Appellant and Robinson had left when Robinson discovered the wood stock to the shotgun was missing. The two men returned and Robinson said the victim “is still breathing.” Robinson reloaded the shotgun and again shot the victim in the back of the head; he reloaded the shotgun and said to appellant, “here, you shoot him.” Appellant stated that he then shot the victim in the back of the head and he and Robinson fled the scene. The last paragraph of appellant’s statement read:

“After I read the statement I told the officer that it was true but I would not sign the statement until I explained in the statement why I did it [sic] the explanation is that the reason that I shot the deceased is because I thought if I didn’t Robert would kill me.”

An Assistant Medical Examiner for Dallas County, Dr. Ross Zumwalt, testified that in his opinion any of the shotgun wounds to the deceased’s head would have, of and by itself, caused the death of the deceased under any definition of death. It was Dr. Zumwalt’s further opinion that neither of the .38 pistol wounds caused the death of the victim.

Appellant’s first trial in this cause resulted in a mistrial when the jury was unable to reach a verdict. Under these facts, we cannot say that evidence of appellant’s guilt was overwhelming.

At the punishment phase of appellant’s retrial the State introduced one other prior conviction for unlawfully carrying a prohibited weapon, a club, for which appellant received a sentence of one day in jail plus court costs. The State also elicited bad reputation testimony from two Dallas police officers, both of whom admitted in the presence of the jury that their information had been partially obtained from the Chief Prosecuting Attorney in the instant case. The State produced nothing more, and during their deliberation on punishment, the jury sent the following request to the court:

We the jury would like to have all of the new evidence. By new evidence, we mean copies of the two previous convictions.

Under these circumstances, we cannot conclude that the jury did not consider the improvidently admitted Louisiana conviction in assessing appellant’s punishment, beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Though the error relates only to punishment, the jury, and not the trial court, assessed it. Therefore, the Court of Criminal Appeals is without authority to direct a new hearing before a different jury on the issue of punishment alone. Bullard v. State, 548 S.W.2d 13 (Tex.Cr.App.1977); Hickman v. State, 548 S.W.2d 736 (Tex.Cr.App.1977).

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

DALLY, Judge,

dissenting.

State’s Exhibit No. 41 was offered at the punishment phase of the trial to prove appellant’s prior criminal record pursuant to the provisions of Art. 37.07, Sec. 3, V.A.C. C.P. Whether State’s Exhibit No. 41 was properly admitted in evidence depends on whether there is sufficient evidence to prove that the appellant was the same person convicted in Louisiana.

State’s Exhibit No. 41 includes exemplified copies of an information and court minutes. That Exhibit evidences that a person by the name of Neil Douglas Daniel, in Cause No. 92,803, was convicted on his plea of guilty for the offense of theft of property of a value in excess of $100 and less than $500, in the First District Court of Caddo Parish, Louisiana, on .September 22, 1972. Daniel was granted probation.

State’s Exhibit No. 45 was admitted as a business record of the Dallas County Jail. It is dated January 12, 1973. This business record was made when a person by the name of Neil Douglas Daniel was arrested and held in the Dallas County Jail. This jail card states that Neil Douglas Daniel was a “Louisiana Probationer” who had been convicted in Cause No. 92,803 for the offense of attempted felony theft; it states he had completed his probation and was released. This business record bears the fingerprints of Neil Douglas Daniel. The fingerprints which appear on State’s Exhibit No. 45 are identical to those of the appellant as proved by the testimony of an expert witness during the trial of the instant case.

Although this evidence may not be as strong and complete as the evidence in the numerous cases cited in the majority opinion, I would hold that the identical cause number, name, and offense found in both exhibits were sufficient to show that the appellant was the same person convicted of the offense in Louisiana, and the trial court properly admitted in evidence State’s Exhibit No. 41 to prove the prior conviction of the appellant in Louisiana.

I dissent to the reversal of the judgment.

      . V.A.C.C.P., Art. 37.07 Sec. 3(a) provides:
      “Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” [Emphasis supplied]

      . Apparently, the defendant in Louisiana Cause No. 92,803 entered a plea of guilty to a lesser offense than the one charged by information.

      . The record reflects that Deputy Cron’s testimony sufficiently established the predicate for admitting the jail card as a business record. See Art. 3737e, V.A.T.C.S.; n.6, infra.

      . Pre-trial appellant filed an instrument entitled “Motion to Instruct State’s Counsel Concerning Extraneous Transactions and Offenses” which requested the court to rule on the admissibility of any extraneous transaction constituting an offense outside the presence of the jury. This Motion specifically alleged that “the identity of the defendant must be proved . . . before it is admissible.”
      In a sub rosa hearing preceding the penalty phase, appellant objected to the use of the jail card on the ground that no link between appellant’s recorded arrest in Dallas County and the Louisiana conviction had been established, and requested the court to require the State “to prove identification outside the presence of the jury first before prejudicing [the] jury with putting records [of the Louisiana conviction] into evidence that they cannot possibly identify.”
      The trial court responded that the admissibility of the exhibit would be determined upon its introduction before the jury. The trial court ultimately ruled State’s Exhibit No. 45 admitted “for the record only.” There can be no doubt that the instant ground of error was preserved for review. Ziliender v. State, 557 S.W.2d 515 (Tex.Cr.App. 1977).

      . See e. g., Rios v. State, 557 S.W.2d 87 (Tex. Cr.App.1977); Alvarez v. State, 536 S.W.2d 357 (Tex.Cr.App. 1976); West v. State, 511 S.W.2d 502 (Tex.Cr.App.1974); Cleveland v. State, 493 S.W.2d 145 (Tex.Cr.App.1973); Speights v. State, 499 S.W.2d 119 (Tex.Cr.App.1973); Rascon v. State, 496 S.W.2d 99 (Tex.Cr.App.1973); Jones v. State, 482 S.W.2d 634 (Tex.Cr.App. 1972); Emerson v. State, 476 S.W.2d 686 (Tex. Cr.App.1972); Blake v. State, supra; Babcock v. State, supra; Villareal v. State, 468 S.W.2d 837 (Tex.Cr.App.1971), [wherein “prison packets” used]; and Bullard v. State, supra; Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App. 1974); Anderson v. State, 504 S.W.2d 507 (Tex. Cr.App.1974); Jones v. State, 500 S.W.2d 661 (Tex.Cr.App. 1973) [wherein county records used].

      . Art. 3731a, Section 2, provides in pertinent part:
      “Any written instrument which is permitted or required by law to be made, filed, kept or recorded . . . by an officer or clerk of . . . another state . . . or of any governmental subdivision of . the foregoing, or by his deputy or employee; ... in the performance of the functions of his office, shall, so far as relevant, be admitted in the courts of this State as evidence of the matter stated therein . . . .” [Emphasis supplied].

        Art. 3737e, Section 1, provides:
      “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 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.”