author: TOM G. DAVIS, Judge.

text:
    Wayne Martin COWAN, Appellant, v. The STATE of Texas, Appellee.
    No. 55191.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 8, 1978.
    Rehearing Denied En Banc March 15, 1978.

      Lawrence E. Ackels, Lawrence E. Ackels, Jr. and Henry J. Ackels, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Tom F. Lillard, Asst. Dist. Attys., Dallas, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated rape under V.T.C.A. Penal Code, Sec. 21.03(a)(2). After the jury returned a verdict of guilty, punishment, enhanced under V.T.C.A. Penal Code, Sec. 12.-42(c), was assessed by the court at twenty years.

Appellant challenges the sufficiency of the evidence to prove penetration.

The record reflects that on the afternoon of October 30,1975, the prosecutrix received a telephone call from the appellant, asking her to help him wrap a package. The testimony reflects that the prose-cutrix and the appellant had known each other slightly for several years. The appellant picked up the prosecutrix at work several hours later and they proceeded to his apartment. The appellant then told the prosecutrix that his wife would be back in a short time to help them wrap the gift. He then asked her if she would like to come upstairs and see his water bed, which she agreed to do. After a brief conversation in the bedroom, appellant closed the door and put his hand over her mouth, telling her not to scream or he would kill her. The appellant then pushed her onto the bed. At this point the prosecutrix testified the appellant pulled a knife and threatened her with it. He then threw her to the floor and ordered her to remove her blouse. The prosecutrix testified that she attempted to pull the appellant’s hair and that she scratched him or at least pulled at the neck of his T-shirt. Prosecutrix stated that they “fought and fought” and in the course of the fight that appellant took her pants off. With respect to the issue of penetration, the record reflects that prosecutrix testified as follows:

“Q. And then at that time, J_, did — let me ask you a question for the record. At that time did his male organ penetrate your female organ?
“A. Yes.”

In addition, Dr. James D. Strong, Jr., testified that in his medical opinion the bruising of the prosecutrix’s labia majora “was made with a male sex organ.”

In Sherbert v. State, Tex.Cr.App., 531 S.W.2d 636, we stated:

“The burden of proof upon the State in proving penetration is no greater under V.T.C.A. Penal Code, Sec. 21.01(3) than it was under Art. 1187, V.A.P.C. This Court has held that the requirement of Art. 1187, V.A.P.C. is satisfied by showing any penetration, no matter how slight. Rhynes v. State, Tex.Cr.App., 479 S.W.2d 70; Nilsson v. State, Tex.Cr.App., 477 S.W.2d 592; Johnson v. State, Tex.Cr.App., 449 S.W.2d 65. While proof of the slightest penetration is sufficient, this element of the offense must be proved beyond a reasonable doubt. Lynch v. State, 150 Tex.Cr.R. 57, 199 S.W.2d 780; Calhoun v. State, 134 Tex.Cr.R. 423, 115 S.W.2d 965. Penetration between the labia of the female’s private parts by the male sexual organ of the defendant is sufficient although the vagina was not entered or an act of intercourse was ever completed. Rhynes v. State, supra.” (footnote omitted)

We find the evidence is sufficient to prove the act of penetration and conclude that the evidence is sufficient to sustain the conviction.

Appellant contends that the trial court erred in admitting over objection three photographs of the appellant after an allegedly illegal arrest.

The appellant contends that because he was illegally arrested the photographs taken of him at the police station were tainted, and were admitted in violation of his Fourth Amendment rights. The appellant argues that they were prejudicial because they showed heavy fingernail scratches on his chest.

We need not reach the question of whether the photographs were tainted by the allegedly illegal arrest since on direct examination the appellant testified as follows:

“Q. What did she do then?
“A. She started scratching me and I hauled off and knocked the crap out of her and I told her to get up, I ain’t going for this.
* * * * * *
“Q. Now, you have said that you hit her.
“A. Yes, I did.
“Q. I don’t like your choice of words, but you said you knocked the crap out of her, is that correct?
“A. Yes.
“Q. Did you hit her in the face?
“A. I hit her one time.
“Q. That was because she pulled back on you and started saying, ‘Don’t,’ and ‘Stop’?
“A. Yes. She was scratching me.
“Q. Scratching your shirt or you?
“A. No. She was scratching me.”

Where, as here, the appellant testifies on direct examination to the same facts proven by the photographs, error in their admission, if any, was harmless. Hill v. State, Tex.Cr.App., 504 S.W.2d 484; McComb v. State, Tex.Cr.App., 488 S.W.2d 105; Moulton v. State, Tex.Cr.App., 486 S.W.2d 334.

Appellant contends that the trial court erred in refusing to strike the enhancement allegations from the third indictment returned against him.

Appellant argues that he was indicted as a recidivist on a second reindictment, and that since the prior indictments did not allege a prior conviction, he was as a matter of law the victim of prosecutorial vindictiveness. He argues that under the teachings of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), his conviction should be reversed.

The argument made by the appellant was recently explicitly rejected by the United States Supreme Court in the case of Bordenkircher v. Hayes, - U.S. -, 98 S.Ct. 663, 54 L.Ed.2d 604 (decided January 18, 1978, after argument was made before this Court by appellant’s counsel). No error is shown.

Appellant contends that the trial court erred in allowing the prosecutor to inquire repeatedly into inadmissible statements made by the appellant.

The record reflects that in six of the cited questions, the appellant’s objection was sustained by the trial court. The appellant received all of the relief he sought. Bourg v. State, Tex.Cr.App., 484 S.W.2d 724; Haywood v. State, Tex.Cr.App., 482 S.W.2d 855; Gleffe v. State, Tex.Cr.App., 509 S.W.2d 323. There was no request to have the court instruct the jury to disregard the question as improper, nor was there a motion for a mistrial. Wockenfuss v. State, Tex.Cr.App., 521 S.W.2d 630.

Of the two questions to which objections were overruled, the first only inquires into whether the appellant was under arrest. Further, the objection made by appellant was a general objection and nothing is presented for review. Williams v. State, Tex.Cr.App., 549 S.W.2d 183; Smith v. State, Tex.Cr.App., 513 S.W.2d 823; Wilson v. State, Tex.Cr.App., 541 S.W.2d 174.

The second question to which the appellant’s objection was overruled was, “In fact when they asked you if you knew J_, you had not been told you were under arrest then?” This question does not inquire into what the appellant’s response was to the officer’s question. It is undisputed that appellant knew the prosecutrix and no harmful inference could have resulted from the mere asking of the question. No error is shown.

Appellant contends that the trial court erred in overruling his objection to the court’s charge. Appellant argues that it was error for the trial court to use the word “or” instead of the word “and” between the word “intentionally” and the word “knowingly” in the charge.

In Braxton v. State, Tex.Cr.App., 528 S.W.2d 844, this Court held that since the definition of rape contained in V.T.C.A. Penal Code, Sec. 21.02, does not plainly dispense with a mental element, by linking V.T.C.A. Penal Code, Sec. 21.02 with V.T. C.A. Penal Code, Sec. 6.02(c), intent, knowledge, or recklessness are the applicable mental states sufficient to establish criminal responsibility for the offense of rape. See and compare, Zachery v. State, Tex.Cr.App., 552 S.W.2d 136 (rape indictment which failed to allege any culpable mental state held fundamentally defective).

The indictment charged aggravated rape under V.T.C.A. Penal Code, Sec. 21.03, which invokes the elements of rape under Sec. 21.02. The indictment in the instant case alleges, in part, that the appellant on October 30, 1975, did “. . . unlawfully, intentionally and knowingly have sexual intercourse with J_, hereinafter styled complainant, a female not his wife, without the consent of the complainant and the Defendant did intentionally and knowingly compel the complainant to submit and participate in the said act of sexual intercourse by threat of death and serious bodily injury . .” (Emphasis added.)

The complained of portion of the charge reads as follows:

“Now, if you find . . . that the Defendant . . .did intentionally or knowingly [commit the offense of aggravated rape] . . . then you will find the Defendant guilty of aggravated rape, as charged in the indictment.” [Emphasis added.]

In a number of cases that have come before this Court since the enactment of the new Penal Code, the question has been presented whether a charge was fundamentally defective where, as here, the indictment alleged that the offense was committed “intentionally and knowingly” and the court charged the jury to find the defendant guilty if he acted “intentionally or knowingly.” In Mott v. State, Tex.Cr.App., 543 S.W.2d 623, this Court held such charge not fundamentally defective and stated that since the defendant had not objected nothing was presented for review. A similarly worded charge was held not to require reversal in McElroy v. State, Tex.Cr.App., 528 S.W.2d 831. See also Moreno v. State, Tex.Cr.App., 541 S.W.2d 170; Garcia v. State, Tex.Cr.App., 537 S.W.2d 930.

Braxton v. State, supra, held that where the statute did not proscribe a culpable mental state, intent, knowledge, or recklessness suffice to establish criminal responsibility. See V.T.C.A. Penal Code, Sec. 6.02(c).

In the instant case, the State pled intent and knowledge as the culpable mental states establishing criminal responsibility. Proof of either mental state is sufficient to establish criminal responsibility for the offense of aggravated rape.

The appellant argues that it is error to plead conjunctively and to charge in the disjunctive. Under Arts. 1183 and 1389, the rape and burglary statutes of the former Penal Code, the indictment could allege the commission of the offense by force, threats and fraud, and proof of any would be sufficient. Lucero v. State, Tex.Cr.App., 502 S.W.2d 750. Nor was the State required to elect. 4 Branch’s Ann.P.C., 2d Ed., Sec. 1397, p. 256. This reasoning has previously been applied to the question of culpable mental states. See Mott v. State, supra (concurring opinion).

We hold that the court in the instant case did not err in overruling appellant’s objection to the submission in the charge of the culpable mental states in the disjunctive.

Appellant contends that the court erred in overruling his objection to the court’s charge when the trial court inserted the word “or” instead of the word “and” between the words “submit” and “participate.”

V.T.C.A. Penal Code, Sec. 21.02(b)(2), reads in part as follows:

“he compels her to submit or participate by any threat, communicated by actions, words or deeds, that would prevent resistance by a woman of ordinary resolution, under the same or similar circumstances, because of a reasonable fear of harm; . . .” [Emphasis added.]

The indictment in the instant case, set forth in part above, alleged that the appellant compelled the “complainant to submit and participate . . . .” [Emphasis added.]

The trial court charged the jury in the language of the statute, substituting the word “or” for the word “and” found in the indictment. The reasoning set forth under appellant’s last contention is equally applicable to this complaint. There was no error to plead in the conjunctive and charge in the disjunctive. No error is shown.

Appellant’s sixth ground of error is overruled.

The judgment is affirmed.

      . We would note that the Supreme Court of Indiana in a similar situation held that photographs of a defendant charged with rape were admissible, as against a similar argument when they portrayed scratch marks on his face. The court stated that since the pictures only portrayed what had been described by the victim, they were admissible. Leaver v. State, 250 Ind. 523, 237 N.E.2d 368 (Ind.Sup.1968). In Dujay v. State, Tex.Cr.App., 368 S.W.2d 613, we stated in dicta that photos of a defendant’s arm that showed needle tracks should have been suppressed as the result of an illegal arrest, where the only other testimony about the defendant’s arms was based on observation by police officers after the illegal arrest.

      . “Your Honor, he’s trying indirectly to achieve what he’s not been permitted to do by the Court directly. We object to this line of questioning.”


source: Caselaw Access Project

author: W. C. DAVIS, Judge.

license: Public Domain

text:
    Robert Charles THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 57066, 57067.
    Court of Criminal Appeals of Texas. Panel No. 1.
    Feb. 15, 1978.
    Rehearing En Banc denied March 15, 1978.

      Tom Mills, Jr., Dallas, on appeal only, for appellant.
    Henry Wade, Dist. Atty. and John Tatum, Asst. Dist. Atty., Dallas, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

These are appeals from convictions for attempted rape and aggravated robbery. Appellant entered pleas of guilty before the trial court and received sentences of ten years and twenty years, respectively, in the Texas Department of Corrections.

In his sole ground of error, appellant contends that the trial court erred in failing to conduct a hearing to determine appellant’s competency to stand trial. See Art. 46.02, Secs. 2, 3 and 4, Vernon’s Ann.C.C.P.

On March 11, 1977, appellant entered his pleas of guilty. The trial court carefully admonished appellant under Article 26.13, Vernon’s Ann.C.C.P., and additionally inquired into matters not required by that statute. After the court ascertained that appellant fully understood the admonishments, it ascertained that appellant understood that he was waiving his trial rights; that he was satisfied with his representation by his attorney; that he was twenty-seven years old and had completed college with a degree in accounting; that he had worked as an accountant; that he had never been treated for mental illness; that he had a rational, as well as factual, understanding of the proceedings; and that he understood all that the trial court had asked him and had no questions about the proceedings. Then the trial court questioned appellant’s attorney, who stated that appellant had been able to aid and assist her in the preparation of his defense and that she thought that appellant had a factual, as well as rational, understanding of the proceedings. The court then ruled that appellant appeared to be mentally competent.

Appellant then testified as to the alleged offenses, after which the trial court found him guilty as charged. The record reflects that appellant subsequently wrote a letter to the trial judge, which was filed on March 21,1977. In his letter, appellant apologized for committing the crimes and asked the judge for mercy in sentencing. He also stated that he did not understand why he had committed the offenses and said that he wanted help in overcoming his “sickness.”

On April 1, 1977, the trial court sentenced appellant to serve the ten and twenty year terms. On April 5, appellant filed a pro se motion for new trial in both causes, in which he requested a psychiatric examination. On April 29, 1977, the trial court held a hearing on the motion for new trial. Appellant testified that he wanted a mental examination in order to “really know what [his] problem is.” He stated that “sometimes I understand things and sometimes I don’t.” The trial court questioned him and ascertained that he had never before been treated for mental illness nor had he ever been adjudicated incompetent or insane. Appellant then stated that he had been placed in the “mental tank” in the county jail and that he had been put on medication.

His attorney stated again that he had been able to aid and assist her in the preparation of his defense and that he understood what went on. at his trial. Appellant then stated that he thought that he was not rational and competent at the time he committed the offenses, because “if [he] would’ve been [he] wouldn’t have done it . . ."

The trial court then decided to appoint a psychiatrist to examine appellant. The record reflects that a letter was sent to the trial judge by the psychiatrist, stating that the psychiatrist examined appellant and found him to be competent to stand trial.

The record then reflects that appellant made a pro se motion, dated May 11, 1977, for the appointment of an expert-witness psychiatrist. In this motion, he stated that there was a history of mental illness in appellant’s family, and that the “issue of insanity has been an established fact since [the] date of arrest . . . ”

On May 20, the court continued the hearing on the motion for new trial. The court overruled the motion and stated:

“Show in the record, please, the Court has on two occasions prior to trial — one as a result of statements made by this Defendant at the last hearing — requested and appointed a psychiatrist to examine him. On both occasions the psychiatrist said that he was competent both prior to trial and after his request was made at the hearing last time this case was set and the Court finds that there is not sufficient evidence to support a finding of incompetency . . ”

Appellant was then re-sentenced to the ten and twenty year terms.

We have concluded that appellant’s ground of error is without merit; the trial court did not err in refusing to hold a hearing on appellant’s competency to stand trial since the evidence before the court was not sufficient to raise that issue.

It is well settled that the conviction of an accused, while he is legally incompetent to stand trial, violates due process. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed.2d 835 (1956); Bonner v. State, 520 S.W.2d 901 (Tex.Cr.App.1975); Perryman v. State, 494 S.W.2d 542 (Tex.Cr.App.1973). The test of legal competence to stand trial is whether the accused has sufficient present ability to con-suit with his lawyer with a reasonable degree of rational understanding and has a rational, as well as factual, understanding of the proceedings against him. Article 46.02, Sec. 1, Vernon’s Ann.C.C.P.; Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Paul v. State, 544 S.W.2d 668 (Tex.Cr.App.1976). Due process may, in certain circumstances, require that the trial court order a competency hearing, even absent any request to do so. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Paul v. State, supra.

In the instant case, the trial court was relieved of any responsibility to hold a pre-trial hearing by virtue of appellant’s announcement of ready and entry of a guilty plea without any suggestion of incompetency. Paul v. State, supra; Perryman v. State, supra.

At trial, the record reflects that the court carefully inquired into the matter of competency at the time of the guilty plea. The trial court carefully questioned both appellant and his attorney, before accepting the plea. See Almand v. State, 536 S.W.2d 377 (Tex.Cr.App.1976).

After conviction, when appellant requested a psychiatric examination, the trial court had appellant examined. After such examination, the trial court ruled that there was no issue of incompetency raised. We agree. Appellant’s insistence that he was “mentally sick” must be contrasted with the fact that his testimony at trial was clear and lucid; he admitted that he understood all of the proceedings; his attorney testified that he was able to assist in preparing his defense and that he understood the proceedings; a psychiatrist apparently examined him twice and both times found him to be competent.

A trial court is only required to sua sponte hold a competency hearing when sufficient facts or circumstances are brought to the court’s attention, from any source, that create a reasonable doubt as to the competency of the appellant. Bonner v. State, supra; King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974); Perryman v. State, supra; Wages v. State, 501 S.W.2d 105 (Tex.Cr.App.1973). In the instant case, all evidence before the trial court was insufficient to raise the issue of competency. Paul v. State, supra; Almand v. State, supra; Jackson v. State, 509 S.W.2d 570 (Tex.Cr.App.1974); Perryman v. State, supra; Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). Therefore, we hold that the trial court did not abuse its discretion in failing to hold a hearing on appellant’s competency to stand trial. See Ainsworth v. State, supra.

Appellant’s ground of error is overruled.

The judgments are affirmed.

      . The trial court is to be commended for taking such care in inquiring into a defendant’s understanding of the trial proceedings and his plea, especially where there is any question of incompetency.

      . The docket sheet reflects that on April 29, 1977, the prior sentence was withdrawn in order for the trial court to rule on appellant’s motion for new trial.

      . We note that there appears in the record a letter from appellant to the trial judge, filed October 3, 1977, in which appellant details his reasons for believing that he is mentally disturbed. His discussion of his innocence of his prior conviction for rape, his marital problems, and his employment problems does not sufficiently raise the issue of his incompetency. The fact that appellant is sorry that he committed the offenses and that he may have had personal problems and stresses when he committed the crimes does not affect his competency to stand trial for them.


author: DOUGLAS, Judge.

text:
    William David HOVILA, Appellant, v. The STATE of Texas, Appellee.
    No. 56989.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 8, 1978.
    Rehearing Denied March 8, 1978.

      Howard G. Wilson, Mesquite, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Stephen P. Tokoly, Norman Kinne and Robert E. Whaley, Asst. Dist. Attys., Dallas, for the State.
   OPINION

DOUGLAS, Judge.

In 1974, appellant, William David Hovila, was convicted of murder and assessed the death penalty. We reversed the conviction on appeal because several prospective jurors had been excused in violation of the Witherspoon decision. 532 S.W.2d 293 (Tex.Cr.App.1975). On remand, appellant was convicted of capital murder and again assessed the death penalty. This appeal followed.

No challenge is made to the sufficiency of the evidence to support the conviction. The evidence introduced at the guilt stage of the trial established that on June 27, 1973, Hovila went to the office of Henry J. McClusky, Jr., an attorney he had known for several months. He forced McClusky at gunpoint to write a check in the amount of $500.00 payable to Hovila. He then injected a drug into McClusky and drove him to an undeveloped area of Dallas County. After he stopped, he put the then unconscious McClusky on the ground and shot him three times.

McClusky’s body was found twelve days later. The medical examiner testified that any one of the three bullet wounds could have caused McClusky’s death, and that the body was so thoroughly decomposed it was impossible to determine whether a drug had been a contributing cause.

The first contention is that prospective jurors Glass and Boyd were improperly excused for cause under V.T.C.A., Penal Code, Section 12.31(b). This section provides:

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

Prospective juror Glass testified that he believed the death penalty was a proper punishment in certain cases. When asked by the prosecutor whether he could state under oath that the mandatory sentence, on conviction, of life imprisonment or death would not affect his deliberations on any fact issue, Glass replied that he could not because “judging something that would take the life of a man would have to affect . ” his deliberations. He then exhibited some confusion with respect to the oath and stated that he would not give untruthful answers to the questions submitted to the jury.

Glass further testified as follows:

“A. I would have to be truthful and say that it would certainly affect the way in which I interpreted certain facts coming to me, that is, as I understand it, our job would be to interpret these facts, there’s obviously a question about them or there wouldn’t be a trial.
“Q. Right and I certainly—
“A. Particularly the second question would, I think I would have to be truthful and say that it would affect the way I interpreted those facts.
“Q. Well, then you are saying it would affect your deliberations?
“A. Yes, I have said that before, didn’t I?
“Q. You would answer them truthfully, but you would have — the way you answered them — the mandatory sentence then would have some effect on the way that you answered those questions?
“A. I think so, yes.”

Glass’ answers reflect that the potentially mandatory penalty of death would have affected his perception of the facts, and that he could not have stated under oath that such penalty would not affect his deliberations on the fact issues. Thus, this prospective juror was disqualified under Section 12.31(b) and was properly excused by the court.

Prospective juror Boyd testified that she favored imposition of the death penalty in certain cases, but she further testified that her deliberations on the fact issues would be affected by the potentially mandatory assessment of that penalty. She related that she could not state under oath that her deliberations would not be affected.

Later, defense counsel inquired whether Boyd would answer truthfully the fact issues submitted to the jury. She stated that she would.

The record then reflects that Boyd reiterated that her deliberations on the fact issues would be affected but that she would answer the questions truthfully. She testified in this regard as follows:

“Q. (By Mr. Tokoly) Would not affect their deliberations on these issues of fact in the case, and I thought you told me they would?
“A. It would.
“Q. And it would affect you in answering those questions; is that correct?
“A. That’s what I said.
« * * *
“Q. (By Mr. Simmons) Okay, I will rephrase the question. Would the mandatory death or life affect you to the extent that you would be untruthful in answering the questions?
“A. No, I wouldn’t be untruthful, but it would, you know, it would affect, me to the point, you know, where I probably would get confused about it, you know, emotionally, mixed up emotionally.
U * * *
“A. What I am saying is that the death penalty, you know, it probably would affect whether I could decide to say yes or not, that’s what I am saying, I just can’t—
u * * *
“Q. (By Mr. Simmons) And I have one other question, would you answer the questions truthfully?
“A. Yes.
u * * *
“MR. TOKOLY: Judge, I think she has clearly said that the death penalty would affect the way she answered those questions and it would affect her deliberations; is that right?
“A. It would affect it, but I am not saying that I would tell a story, I mean, you know, do it untruthfully.”

Section 12.31(b) does not disqualify prospective jurors on the basis of whether or not they can state under oath they will answer the fact questions truthfully. This provision disqualifies those jurors who cannot state under oath that the mandatory penalty of death or life imprisonment would not affect their deliberations on any issue of fact. Prospective juror Boyd forthrightly stated that the possible infliction of the death penalty would confuse her and disturb her emotionally and that, as a result, her deliberations on the fact issues would be affected. The clear implication of her testimony was that she would not be consciously deceptive. Since she could not state under oath that her deliberations would not be affected, the trial court properly excused her.

Appellant next contends that prospective jurors Marr, Jenkins, Goolsby and Lucks were excused in violation of Section 12.-31(b) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

The record reflects that Marr and Jenkins were excused without objection. Failure to object to the improper exclusion of veniremen waives that right and such exclusion cannot be considered on appeal. Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App.1976), cert. denied 430 U.S. 959, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977).

Prospective juror Goolsby testified that she was uncomfortable with the concept of the death penalty and that she could not consider the death penalty in this type of case. She further testified that she was certain the mandatory penalty of death or life imprisonment would affect her deliberations on the fact issues and that she could not state under oath that such deliberations would not be affected.

Prospective juror Lucks was ambiguous with regard to her belief in the death penalty. She testified that she had previously supported the death penalty but that she was reconsidering her position on the issue and was undecided at that time. Lucks vacillated, however, and indicated by her responses that she believed the death penalty was a proper punishment for capital offenses but that she could not sit on a jury and vote for the punishment herself. She then stated that the mandatory penalty would affect her deliberations on the fact issues and that, under oath, she could not state otherwise.

In the decision involving appellant’s first murder conviction, Hovila v. State, 532 S.W.2d 293 (Tex.Cr.App.1975), we held that the holding of Witherspoon was still viable in light of the new statutory scheme providing for the imposition of the death penalty adopted after the decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). However, in Moore v. State, 542 S.W.2d 664 (Tex.Cr.App.1976), we held that it was unnecessary to consider the Witherspoon question where the prospective juror had been disqualified under Section 12.31(b).

While it might be argued as to whether the testimony of Goolsby and Lucks in the present case would have disqualified them under the holding in Witherspoon, it is certain that their answers disqualified them under Section 12.31(b). See and compare Moore v. State, supra; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977).

Appellant next contends that the court erred in failing to sustain his challenge for cause to a venirewoman called out of order. He relies on Article 35.20, V.A.C.C.P., which provides:

“In selecting the jury from the persons summoned, the names of such persons shall be called in the order in which they appear upon the list furnished the defendant. Each juror shall be tried and passed upon separately. A person who has been summoned, but who is not present, may, upon his appearance before the jury is completed, be tried as to his qualifications and impaneled as a juror, unless challenged, but no cause shall be unreasonably delayed on account of such absence.”

Prospective juror Vinson was not present when he was called for examination. Thereafter, prospective juror Duer was examined by the State. The prosecutor and defense counsel agreed that Duer should be excused.

Prospective juror Neely was called next. Appellant challenged her for cause on the ground that she was called out of order. The court overruled the challenge. After further examination, defense counsel used a peremptory challenge to remove Neely from the panel.

Later, prospective juror Vinson appeared and was examined. Counsel for the opposing sides agreed to excuse him.

The record is incomplete with respect to the contention raised on appeal because it contains no jury list and, apparently, none was requested. Although prospective juror Neely was called out of order, appellant made no objection on this ground until she had been examined at length. Her testimony occupies 30 pages of the statement of facts before such objection appears. Moreover, appellant did not object to the examination of prospective juror Duer although he, too, was called out of order before Neely was questioned. Thus, any error in calling prospective juror Neely out of order was not reversible error.

After the prospective juror in question was removed, the court granted appellant’s request for two additional peremptory challenges, and there is no indication that he did not receive a fair and impartial jury.

Appellant next urges that the trial court commented on the weight of the evidence.

In this connection, the record reflects the following cross-examination of Michael Lawson, a witness for the State, and comment thereon by the trial court:

“Q. (By Mr. Simmons) He (appellant) was a friend of yours?
“A. That’s correct. I don’t put anybody down for what they are.
“Q. So it didn’t matter to you what he was, as long as he was still a friend?
“A. That’s correct.
“Q. He was such a good friend that you called the Mesquite Police Department and tried to put him in the electric chair, didn’t you?
“THE COURT: That’s argumentative.
“MR. SIMMONS: I didn’t hear an objection . . ., Judge.
“THE COURT: I’m saying it’s argumentative.
“MR. SIMMONS: Then we have no further questions of this witness.”

This did not amount to a comment on the weight of the evidence by the judge. He only stated that the question was argumentative. Further, there was no objection to the comment of the judge, thus, it is not properly before us for review. Minor v. State, 469 S.W.2d 579 (Tex.Cr.App.1971); Jenkins v. State, 488 S.W.2d 130 (Tex.Cr.App.1972).

The final contention is that the court erroneously excluded evidence at the punishment stage of the trial. Article 37.-071(a), V.A.C.C.P., provides that “evidence may be presented as to any matter that the court deems relevant to sentence.” Appellant argues the excluded evidence was relevant because it showed that he would not be a continuing threat to society. See Article 37.071(b)(2), V.A.C.C.P.

In January, 1974, appellant was mistakenly released from jail and he went home to Wichita Falls for four days. In this connection, Marian Hovila, appellant’s mother, was called as a witness by appellant at the punishment proceeding. The court excluded her testimony regarding appellant’s activities while he was at home.

Mrs. Hovila testified out of the presence of the jury that appellant remained in her house during the greater part of that four-day period. She stated, however, that he applied for a driver’s license and went to a dance one night with friends. She further stated that appellant did nothing unusual and that when he discovered his release was a mistake he returned to Dallas with the intention of surrendering to the authorities. There is nothing in the record to indicate that appellant did surrender voluntarily.

This Court has stated that in determining the probability that a defendant in a capital murder case will be a continuing threat to society, the jury could consider whether he had a significant criminal record; whether his prior criminal conduct was severe; whether he was young or old; whether he was acting under duress or the domination of another at the time of the commission of the offense; and whether he was under an extreme form of emotional pressure not far removed from insanity. See Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975); and Robinson v. State, 548 S.W.2d 63 (Tex.Cr.App.1977).

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court of the United States held that this state’s new statutory scheme for capital murder was constitutional because Article 37.071, V.A.C.C.P., assures that all relevant information relating to the defendant will be introduced in evidence. Subsequently, we observed in Robinson v. State, supra, that that statute “allows a trial judge broad discretion in determining just what constitutes ‘relevant evidence’ . . . ” at the punishment stage. 548 S.W.2d at 65.

The evidence in the instant case that Hovila did not murder or commit other criminal acts during a four-day period would not show that he probably would or would not be a continuing threat to society. The trial court’s error, if any, in refusing to admit this evidence was not so harmful as to require us to reverse.

The judgment is affirmed.

ROBERTS and PHILLIPS, JJ., concur in the result.

VOLLERS, J., not participating.

      . A similar provision was contained in Article 1257(d), V.A.P.C., 1925, as amended (Acts 1973, 63rd Leg., ch. 426, p. 1122—effective June 14, 1973 until January 1, 1974, effective date of present Penal Code).

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


author: DALLY, Judge.

text:
    Arthur George CLAPPER, Appellant, v. The STATE of Texas, Appellee.
    No. 57152.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 8, 1978.
    Rehearing En Banc Denied March 8, 1978.
    Robert R. Scott, Houston, for appellant.
    Carol S. Vance, Dist. Atty., William W. Burge, and R. P. Cornelius, Asst. Dist. At-tys., Houston, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation.

On December 23, 1975, appellant waived a jury trial and entered a plea of guilty before the court to the offense of burglary of a habitation. Punishment was assessed at imprisonment for 5 years, but the imposition of sentence was suspended and appellant was placed on probation.

The State’s amended motion to revoke probation, which was filed June 16, 1977, and to which there was no objection, alleged, among other grounds, that appellant violated his probation in that, “on or about May 5,1976, in Harris County, Texas, appellant did then and there unlawfully appropriate property, namely, one truck, of the value of over $200.00 and under $10,-000.0Ó, with the intent to deprive the owner, T. E. Shivers, of the property.” The record reflects that, when called upon to plead to the allegations in the State’s amended motion to revoke probation, appellant pled true. Appellant’s plea of true was alone sufficient to support revocation. Guillot v. State, 543 S.W.2d 650 (Tex.Cr.App.1976); Roberson v. State, 549 S.W.2d 749 (Tex.Cr.App.1977). In addition, appellant’s written judicial confession was admitted into evidence. That instrument states, in part, as follows:

“On the 5 day of May, 1976,1 violated the terms and conditions of [my] probation in that I did appropriate property, namely one truck, of the value of over $200.00 and under $10,000, with the intent to deprive the owner, T. E. Shivers, of the property. And I committed said offense in Harris County, Texas.”

The appellant’s sole contention is that the transcription of the court reporter’s notes “is absolutely and completely void [of] any findings of fact or conclusions of law upon which the Judge revoked the probation of the Defendant.” He contends that, without such findings, the trial court improperly revoked probation.

A written order revoking probation controls over an oral pronouncement of the trial judge. Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976); Aguilar v. State, 542 S.W.2d 871 (Tex.Cr.App.1976); Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977). In the instant case, the written order revoking appellant’s probation contains the finding that “on the 5th day of May, A.D., 1976 [appellant did] commit the offense of auto theft, . . . ” There is no request in the record for more specific findings. In absence of such request, the failure of the trial court to make specific findings in the order revoking probation is not reversible error. Mason v. State, 495 S.W.2d 248 (Tex.Cr.App.1973). Appellant’s contention is overruled.

At the conclusion of the evidence, the prosecutor requested that the court reduced the punishment from imprisonment for 5 years to imprisonment for 3 years and allow the appellant to serve his sentence concurrently with that of another conviction. In response to that request, the court stated as follows:

“Very well. Court will reform the sentence to Cause No. 236844 (the instant case) to show the offense of burglary, rather than burglary of a habitation, and the punishment to be assessed is assessed at 3 years’ confinement in the Texas Department of Corrections instead of 5 years’ confinement in the Texas Department of Corrections.”

The order revoking probation and the sentence read as follows:

“It is the order of the Court that the Defendant, Arthur George Clapper, who has been adjudged to be guilty of burglary of a habitation with intent to commit theft, a felony, and who punishment has been assessed at confinement in the Texas Department of Corrections for 3 years, be delivered by the Sheriff of Harris County, Texas, immediately to the Director of Corrections of the State of Texas, or other person legally authorized to receive such convicts, and said Defendant shall be confined in said Department of Corrections for not less than 2 years nor more than 3 years in accordance with the provisions of the law governing the Texas Department of Corrections.”

The court’s statement that the appellant’s sentence would be reformed “to show the offense of burglary, rather than burglary of a habitation,” is in conflict with the order revoking probation and the sentence, which recite that the appellant “has been adjudged to be guilty of burglary of a habitation.” As noted above, the written order controls over the court’s oral statement. Ablon v. State, supra; Aguilar v. State, supra; Jiminez v. State, supra.

Art. 42.12, Sec. 8(a), V.A.C.C.P. provides as follows:

“If probation is revoked, the court may proceed to dispose of the case as if there had been no probation, or if it determines that the best interests of society and the probationer would be served by a shorter term of imprisonment, reduce the term of imprisonment originally assessed to any term of imprisonment not less than the minimum prescribed for the offense of which the probationer was convicted.” (Emphasis added.)

The judgment, sentence, and order revoking probation state that the appellant was found guilty of “burglary of a habitation,” a first degree felony for which the minimum punishment is imprisonment for 5 years. V.T.C.A. Penal Code, Sec. 30.-02(d)(1); Sec. 12.32. The court exceeded its authority in attempting to reduce appellant’s punishment to a term less than the minimum prescribed for the offense of which appellant was convicted. The sentence will be reformed to show the term of imprisonment is 5 years.

We observe that the court also exceeded its authority in attempting to change the conviction from burglary of a residence to burglary of a building, a second degree felony for which the minimum punishment is 2 years. V.T.C.A. Penal Code, Sec. 30.02(c), Sec. 12.33. The court was wholly without power to alter the appellant’s original conviction after the time for a motion for new trial and the time for an appeal had expired. When probation is granted, only the imposition of sentence is suspended; the probation laws affect sentencing only, not conviction. Nealy v. State, 500 S.W.2d 122 (Tex.Cr.App.1973). Cf. Burson v. State, 511 S.W.2d 948 (Tex.Cr.App.1974).

The sentence is reformed to provide for imprisonment for 5 years; as so reformed, the judgment is affirmed.


text:
    Albert Garza CASTRO, Appellant, v. The STATE of Texas, Appellee.
    No. 56988.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 22, 1978.

      Bruce Robertson, Jr., San Antonio, for appellant.
    Bill M. White, Dist. Atty., John G. Yates, G. E. Wilcox and Roy R. Barrera, Jr., Asst. Dist. Attys., San Antonio, for the State.
   OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for capital murder. On February 25, 1975, the jury answered “Yes” to the special issues submitted under Article 37.071, Vernon’s Ann.C.C.P. and the punishment was assessed at death.

In his eighteenth ground of error, appellant contends that the trial court erred in refusing to permit him to impeach John David Rhoades, a State’s witness, for bias and motive for testifying favorably to the State.

The sufficiency of the evidence to show appellant’s guilt for the murder and robbery of Eugene Fish is not challenged. However, in light of our holding, a detailed statement of the facts is necessary. Robert Jolley testified that the deceased was the manager of the Seat Cover, Inc., a south-side clothing store in San Antonio. Jolley, the deceased’s roommate, last saw the deceased alive on the evening of May 22,1974. Vidal Balderas, an employee of the Seat Cover, Inc., arrived at the store around noon on May 23, 1974 and found it closed. He used his key to enter the store, and found the deceased in a pool of blood in the back storeroom. Balderas ran to the store next door and got Brent West, who administered first aid to the deceased. During this time the police and an ambulance were called to the scene. The deceased died later that afternoon.

Dr. Ruben Santos, Bexar County medical examiner, testified that the deceased had three gunshot wounds to the head. He also stated that there had been three blows to the deceased’s head, made by a blunt instrument, which caused parts of the brain and bone to protrude. He testified that only one of the gunshot wounds but any of the depressed fractures could have singly caused death. Santos also found an abrasion on the chest which pierced the skin and appeared to have been made by a screwdriver.

William Moritz testified that he, John Rhoades and appellant had been roommates for several weeks. Moritz stated that on May 22,1974, appellant left their apartment at about 9:00 p. m., with the expressed intention of “going out and rolling a queer.” Appellant had also displayed a pistol, which he took with him when he left the apartment. On the morning of May 23, 1974, Moritz found new clothes with the tags still on them and stereo equipment in the apartment. These items were later identified as having been stolen from the deceased’s store. That evening, after apparently hearing a news report in which they learned that a murder had been committed in connection with the robbery, Mor-itz and Rhoades called the police who retrieved the stolen articles from the apartment.

The evidence then showed that appellant was arrested in Frio County where he had driven in the deceased’s car. He was subsequently returned to San Antonio where he made a confession.

In his confession, appellant admitted that on the night of May 22, 1974, he went downtown to Travis Park to the “Meat Rack”, a well-known meeting place for homosexuals. There he met “Blue Boy” (later identified as Ronnie Proctor), an acquaintance. At around 1:00 a. m., the deceased drove by in his car, and the three agreed that if appellant and “Blue Boy” would show the deceased “what they had”, or expose their genitals to him, he would give them clothes. The three men then drove to the deceased’s store.

Once at the store, appellant stated that he and “Blue Boy” showed the deceased their penises. He stated that the deceased then told them to pick out some clothes from the store, and began talking about engaging in sexual activity with them. Appellant stated that while he was picking out clothes he heard a shot and a scream and saw that the deceased had been shot in the head by “Blue Boy” who had appellant’s gun. “Blue Boy” then shot the deceased in the head two more times from close range. Appellant stated that he then picked up a hammer and beat the deceased in the head several times. He later picked up a screwdriver and “poked” the deceased in the chest to see if he was still alive. Appellant then took the deceased’s personal effects, and he and “Blue Boy" left the store, taking “quite a bit of clothes.” He drove “Blue Boy” back downtown, and then returned to the store where he took more clothes and a stereo. Appellant stated that he beat the deceased in the head with the hammer because he was afraid of “Blue Boy” and was scared that “Blue Boy” would shoot him.

John Rhoades, a witness for the State, testified that on the night of May 22, 1974 appellant told him that he was desperate for money and was “going to go out and roll a queer.” Rhoades stated that appellant had a gun, and asked Rhoades to go with him as a decoy. Rhoades first agreed to go but later changed his mind. He stated that appellant threatened to shoot him when he refused to go. Rhoades testified that before appellant left the apartment appellant said that “he was going to kill the queer if the queer could identify him.” He stated that the next morning when appellant was showing him the stolen property appellant told him that he had made six trips back into the store to collect the property and wipe off his fingerprints. Rhoades stated that he took some of the stolen property for his own use and sold some of it, planning to buy marihuana.

Rhoades testified that after he and Mor-itz called the police on the evening of May 23rd he attempted to leave town because he did not want to become involved in the questioning since he was on probation for a felony offense in Dallas.

Rhoades stated that he was arrested at the bus station and was taken to the police station where he told what he knew about the offense. He further stated that he then spent three months in jail.

At this point, during his cross-examination of Rhoades, appellant asked the witness what he had been charged with when he was arrested at the bus station. The State objected to this question; the objection was sustained and Rhoades did not answer. Appellant requested the opportunity to develop a bill of exception, which the trial court stated appellant could do later out of the presence of the jury.

Appellant continued his cross-examination of Rhoades, and a few minutes later asked:

“Now, isn’t it a fact that you were charged with aggrevated (sic) robbery with a deadly weapon?”

The State again objected, which objection was sustained and Rhoades did not answer the question.

Rhoades also testified that he had seen appellant once in jail and that appellant had threatened to kill him if released on bail, because Rhoades had “snitched” on him.

Later during the trial, appellant perfected his bill of exception and the following testimony was elicited:

“Q. [Appellant’s counsel] ... I think you testified that you were arrested at a bus station shortly after Mr. Castro returned to the apartments early in the morning of May the 23rd, 1974?
“A. [Rhoades] Yes, sir.
“Q. Within a day or two, you were arrested?
“A. Yes, sir.
“Q. Now, at that time, what were you arrested for, sir?
“A. Well, they took me down to the police station and told me that I was charged with murder and aggravated (sic) robbery.
“Q. Okay. Who told you that?
“A. A Sergeant Bill Weilbacher.
“Q. Did he tell you that it was in connection with this offense here?
“A. Yes, sir.
“Q. Now, those charges are not pending against you any more?
“A. No, sir; they never were.
“Q. What do you mean they never were? What do you mean?
“A. They weren’t on record over there at the county jail.
“Q. Well, you were put in jail, weren’t you?
“A. Uh-huh.
“Q. And, was there a complaint filed against you?
“A. No.
“Q. But you were told by Sergeant Weilbacher of the San Antonio POlice Department that you were charged with murder and aggravated (sic) robbery?
“A. Yes, sir.
“Q. But you are now not charged with that, are you, and that is why you are here testifying for the State?
“A. No, sir.
⅛ ⅜ ⅜ ⅜ ^ ⅜
“Q. [Prosecution] Whatever Mr. Weil-bacher told you, no complaint was filed against you to your knowledge, charging you with the offense of murder, is that what your testimony is?
“A. Yes, sir.
“Q. And to your knowledge the only offense you were charged with by the Grand Jury was theft over the value of $200.00?
“A. Yes, sir.
“Q. The only other felony conviction that you have had is the one you testified to here previously here before the Jury, the one you are on probation for now, is the one out of Dallas County?
“A. Yes, sir.
“Q. [Defense counsel] Mr. Rhoades, these charges that you were taken before the Grand Jury, was that theft over the value of $200.00?
“A. Yes, sir.
“Q. And did that arise out of these proceedings and the things that Albert Castro brought into the apartment?
“A. Yes, sir.
“Q. And those charges no longer exist?
“A. Yes, sir.”

At the end of the hearing, appellant, by a proper objection, renewed his exception to the trial court’s refusal to allow the jury to hear this evidence. However, the court refused to admit the evidence.

Appellant did not testify in his own behalf, nor did he present any evidence at either stage of the bifurcated trial.

Appellant now contends that the trial court erred in refusing to allow the jury to hear the evidence adduced in the bill of exception as impeachment of Rhoades for bias and motive in testifying for the State. We agree with this contention.

In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that a defendant was denied the right of effective cross-examination where the trial court limited his cross-examination of the State’s witness as to bias or motive due to his status as a juvenile probationer. The court, relying upon the Sixth Amendment right to confrontation of witnesses, held this to be error of constitutional dimension.

As this Court has stated many times, great latitude should be allowed a defendant in showing any fact which would tend to establish ill feelings, bias, motive and animus upon the part of any witness testifying against him. Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977); Robinson v. State, 550 S.W.2d 54 (Tex.Cr.App.1977); Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977); Evans v. State, 519 S.W.2d 868 (Tex.Cr.App.1975); Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974); Blair v. State, 511 S.W.2d 277 (Tex.Cr.App.1974).

In Blair v. State, supra, we stated that any possible malice, bias or prejudice towards the defendant on the part of the witness is admissible to attack his credibility and to lay the groundwork for possible impeachment. The motives which operate on the mind of a witness when he testifies are never regarded as immaterial or collateral matters. The defendant may prove facts “which tend to show bias, interest, prejudice or any other mental state or status which fairly construed might tend to affect his credibility.” See 1 Branch’s Ann. P.C. 2d Ed. Sec. 185.

In Evans v. State, supra, this Court reversed a conviction where the trial court refused to allow the defendant to show that a witness testifying for the State against the defendant was currently under indictment. We held that the claim of bias, interest and motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of the witness’ vulnerable status as an indictee, as well as of the witness’ possible concern that he might be a suspect in the offense.

Then, in Simmons v. State, 548 S.W.2d 386 (Tex.Cr.App.1977), we rejected a distinction between the situation where a witness had charges pending against him at the time he testified and where the charges against him had apparently been dismissed prior to his testifying for the State in another prosecution. We noted that although charges against a witness may have been dismissed, there is always a possibility that the State may cause the charges to be refiled, should the State so choose. Therefore, a defendant has a right to cross-examine a prosecution witness as to charges against him which have been dismissed pri- or to his testifying in another criminal prosecution, as well as to those charges pending against him at the time he testifies for the State, in attempting to show motive for testifying and bias towards the State.

Also, as this Court stated in Smith v. State, 516 S.W.2d 415 (Tex.Cr.App.1974), although “the mere fact of an arrest or indictment of a witness is not normally admissible for impeachment purposes to show bias, motive, ill feelings or animus [footnote omitted], where the evidence of an arrest or legal accusation arises out of the same transaction for which the defendant is on trial, it may be admissible as such impeachment of the witness.”

In the instant case, Rhoades’ own testimony clearly implicated himself in some aspect of the offense, since he knew the appellant was going to attempt to commit a robbery on the night of May 22; he originally agreed to assist appellant in committing a robbery; he knew on the morning of May 23 that appellant had committed some crime; he had knowledge that the clothing in the apartment had been stolen; and knowing that the clothing was stolen, he took it for his own use and disposed of it.

Therefore, appellant sought to bring before the jury evidence that Rhoades had originally been arrested as a participant in the robbery and murder, and that he had been formally charged with an offense arising out of the same transaction for which the appellant was on trial. He further sought to show the jury that none of these charges were pending against Rhoades at the time of appellant’s trial. By presenting evidence to the jury that, while Rhoades had participated in some criminal offense and had been arrested for robbery and murder and indicted for theft, but that those charges were no longer pending against him, appellant sought to show that Rhoades had some interest and motive in testifying for the State. The inference that the jury could have drawn was that Rhoades had a personal interest in helping the prosecution prove its case against appellant and, therefore, may have been an unreliable witness. While the jury may have chosen to reject such an inference, especially since Rhoades denied that he was testifying for the State because of his vulnerable status, this evidence was nevertheless admissible and appellant should have been permitted to prove these facts. See Davis v. Alaska, supra; Simmons v. State, supra; Robinson v. State, supra; Evans v. State, supra; Blair v. State, supra; Burkhalter v. State, 493 S.W.2d 214 (Tex.Cr.App.1973).

This is not the case where the defendant made no attempt to show that the charges were being used to force the witness’ testimony or that he expected favorable treatment in his own case because of his testimony. See Garza v. State, 532 S.W.2d 624 (Tex.Cr.App.1976). Nor is this the case where the defense was able to introduce much of the testimony tending to show possible prejudice and motive on the witness’ part, anyway, in spite of the trial court’s ruling. See Jackson v. State, 552 S.W.2d 798 (Tex.Cr.App.1977). Nor is this the case where the witness was an unimportant witness in the case or where his testimony contributed no vital information that was not already before the jury. See Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974).

We cannot conclude that this error was harmless. It is clear that the evidence of appellant’s guilt of the offense is overwhelming. However, in a capital murder case, after a finding of guilt, the jury must answer the special issues under Article 37.-071, Vernon’s Ann.C.C.P., in order to determine the punishment. The jury must, among other things, determine whether there is a probability that the defendant would subsequently commit criminal acts of violence that would constitute a continuing threat to society.

In the instant case, neither the State nor the defense presented any evidence at the hearing on punishment. Therefore, in answering the special issues, the jury had to base its answer to this question upon the evidence heard at the guilt or innocence phase of the trial. In reviewing the evidence presented by Rhoades alone, it is clear that his testimony may have been crucial to the jury in answering the special issues. Rhoades corroborated Moritz’s testimony that appellant went out on the night of May 22 armed and with the express intent of “rolling a queer.” Rhoades, alone, testified that appellant threatened to kill him when he decided against assisting him in committing the crime. Rhoades alone testified that appellant said that he would “kill the queer if the queer could identify him.” He also testified that appellant made six trips back to the deceased’s store, apparently while the deceased lay dying in the back room. Rhoades also testified that appellant threatened to kill him since he “snitched.”

This evidence, with the circumstances of the crime itself, must be contrasted with the evidence that appellant was nineteen years old at the time of the offense, and there was no evidence that he had a prior criminal record. Appellant also stated in his confession that during the murder he acted out of fear of “Blue Boy.”

Since the evidence adduced at trial formed the basis for the jury’s answer to the special issue on appellant’s propensity to commit future acts of violence and since Rhoades’ testimony was very damaging to appellant, we cannot conclude that the trial court’s exclusion of the impeachment evidence was harmless error. There was little other evidence bearing on this special issue besides appellant’s confession and Rhoades’ testimony. Therefore, we cannot conclude that the trial court’s refusal to allow appellant to impeach Rhoades for bias and motive was harmless to appellant.

In view of our disposition of the appeal, it is not necessary that we consider appellant’s remaining grounds of error. However, appellant raises two issues, which, in the event of retrial, may arise again. Therefore, we answer these grounds of error.

In his sixteenth and seventeenth grounds of error, appellant challenges the admissibility of his confession. He contends that he did not waive his right to counsel before making the confession, which rendered it inadmissible.

A hearing was held on appellant’s motion to suppress, after which the trial court filed findings of fact and conclusions of law. The trial court found that when appellant was arrested in Frio County he was taken before a magistrate and warned of his rights; that he was served with an arrest warrant and returned to San Antonio shortly thereafter; that upon arriving in San Antonio he was again warned of his rights; that he knowingly, intelligently and voluntarily waived his rights, including the right to an attorney; that he was not threatened, coerced or intimidated before making the statement.

We have reviewed the testimony taken in the hearing on the motion to suppress and at trial and conclude that the evidence supports the trial court’s findings. A waiver of the right against self-incrimination and the right to counsel is determined from the totality of the circumstances. Estes v. State, 507 S.W.2d 216 (Tex.Cr.App.1974); Hughes v. State, 506 S.W.2d 625 (Tex.Cr.App.1974); Walker v. State, 501 S.W.2d 912 (Tex.Cr.App.1973). The fact that appellant did not specifically state that he waived his right to counsel does not prevent the trial court from finding that appellant knowingly, intelligently and voluntarily did so. Moreno v. State, 511 S.W.2d 273 (Tex.Cr.App.1974), cert. den. 419 U.S. 1115, 95 S.Ct. 794, 42 L.Ed.2d 813 (1975); Thomas v. State, 458 S.W.2d 817 (Tex.Cr.App.1970); Easley v. State, 448 S.W.2d 490 (Tex.Cr.App.1970). Since the evidence supports the trial court’s findings, these grounds of error are overruled.

In his twenty-ninth ground of error, appellant contends that the State withheld exculpatory and mitigating evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant filed a motion in the trial court requesting to inspect the District Attorney’s file in this case. The trial court denied this motion and, instead, made its own review of the file and determined that there was no exculpatory or mitigating evidence in the file which should be released to appellant. The file was transmitted to this Court in a sealed record, as a part of the record on appeal. We have carefully reviewed all of the reports and statements contained therein and conclude that the trial court was correct in its ruling; the District Attorney’s file contains no evidence favorable to appellant on the issue of guilt or in mitigation of punishment. This ground of error is overruled.

The judgment is reversed and the cause remanded.

      . In its brief, the State fails to distinguish between general impeachment of a witness and impeachment by specific acts for bias and motive in testifying.

      . It is apparent from the testimony that there had been no final disposition of the charges; Rhoades testified that he had only one prior felony conviction at the time of appellant’s trial.


author: ODOM, Judge.

text:
    Manuel PEDRAZA, Appellant, v. The STATE of Texas, Appellee.
    No. 57257.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 22, 1978.
    Charles W. Fairweather, Amarillo, for appellant.
    Dale Summa, County Atty., Stratford, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   OPINION

ODOM, Judge.

This is a probation revocation case.

Appellant contends:

“The trial court erred in entering an order revoking appellant’s probation inasmuch as the purported order placing appellant on probation initially was void for the reason that it attempted to place appellant on probation for a period in excess of the maximum punishment prescribed by law for the offense for which appellant was placed on probation.”

The record shows that on November 3, 1976, appellant was convicted for the misdemeanor offense of assault under V.T.C.A., Penal Code Sec. 22.01(a)(1), and was placed on probation for two years. On June 27, 1977, a motion to revoke probation was filed alleging, among other things, that the appellant committed the offense of driving while intoxicated on April 9, 1977, and was found guilty of that offense on June 1, 1977. On June 29, 1977, a hearing was conducted wherein the court held that the appellant had violated his terms and conditions of probation in that he did commit the offense of driving while intoxicated as set out in the motion.

It was improper to place appellant on probation for a two year term, since the maximum term for the offense for which he was convicted was one year. Article 42.13, Sec. 3(b), V.A.C.C.P., allows imposition of a probationary term in excess of the actual punishment assessed, but not in excess of the maximum term of confinement allowable for the offense.

Appellant argues the order placing him on probation was void ab initio. We hold the order was void only to the extent it purported to subject appellant to probationary supervision beyond the time authorized by law. This is not review of an improper assessment of punishment in a sentence that is indefinite or unauthorized in its directions to the executive authority charged with execution of sentence, such as would require reassessment of punishment before the executive would have a lawful order clearly directing him in the punishment to be imposed. See, e. g., Ex parte Hill, Tex.Cr.App., 528 S.W.2d 125; Ex parte Washington, Tex.Cr.App., 557 S.W.2d 308; Ex parte White, Tex.Cr.App., 538 S.W.2d 417; Tyra v. State, Tex.Cr.App., 534 S.W.2d 695; Green v. State, Tex.Cr.App. 555 S.W.2d 738. Probation is not such an assessment of punishment; it suspends punishment and is in the nature of clemency. See, Art. 4, Sec. 11-A, Tex.Const.; Lechuga v. State, Tex.Cr.App., 532 S.W.2d 581. When probation is granted, the probationer is under the supervision of the court granting probation. Art. 42.13, Sec. 5(a), V.A.C.C.P.; cf. Art. 42.12, Sec. 3, V.A.C.C.P.

The probationary period runs continuously until it expires. See, Nicklas v. State, Tex.Cr.App., 530 S.W.2d 537; Ex parte Miller, Tex.Cr.App., 552 S.W.2d 164. Had the maximum period of probation to which appellant could lawfully be subjected (one year) expired prior to the violation and revocation of his probation, a different situation would be presented. See Nicklas v. State, supra. Here, probation was granted on November 3,1976, and consequently, any violation of its terms and conditions after November 3,1977, could not support a revocation order. However, the date of the motion to revoke was June 27, 1977, which was clearly within the one year term, and the offense for which probation was revoked occurred on April 9, 1977, also within the term. We find no error constituting an abuse of discretion by the supervising court. Furthermore, the order revoking appellant’s probation recites:

“[T]he defendant was placed on probation for a period of two (2) years (which period was incorrect and should have been for a period of one (1) year, the court finding that it was his intention at that time to make the term of probation the longest time legally permissible, to wit, one year) . . . ”

The court acted within its power when it revoked appellant’s probation.

The judgment is affirmed.


author: CADENA, Chief Justice.

text:
    SAN PEDRO NORTH, LTD., Appellant, v. CITY OF SAN ANTONIO et al., Appellees.
    No. 15828.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.
    Rehearing Denied March 1, 1978.

      Harvey L. Hardy, San Antonio, for appellant.
    William H. Robison, George H. Spencer, Randolph P. Tower, Clemens, Spencer, Wel-maker & Finck, San Antonio, for appellees.
   CADENA, Chief Justice.

Plaintiff, San Pedro North, Ltd., a limited partnership, filed this suit seeking a declaration that an ordinance, initiated by petition of voters and adopted at an election, repealing an ordinance adopted by the City Council of the City of San Antonio permanently zoning land owned by plaintiff, was invalid. Defendants are the City of San Antonio and the members of its legislative body.

Plaintiff appeals from a judgment denying it the relief prayed for.

Plaintiff, engaged in the development of land, purchased the land in question in 1961. The land was annexed by the City in 1972, and under applicable ordinances the land immediately became zoned “Temporary R-l, One Family Residence District.”

The City Code contemplates that after land has been annexed the City Planning Commission shall, on its own motion and as soon as practicable, assign appropriate “permanent” zoning classification to newly annexed land. The City Planning Commission did not see fit to initiate appropriate zoning proceedings for the land in question.

Plaintiff conveyed portions of the land in question and in 1975 the buyer successfully initiated proceedings to have the land purchased from plaintiff permanently zoned B-2 and B-3.

Subsequently, in the summer of 1975, plaintiff requested that his land be permanently zoned. The Planning Commission recommended that a portion of the land be permanently zoned B-2 and that the remainder be permanently zoned R-l.

On October 16, 1975, City’s governing body adopted an ordinance assigning to plaintiff’s land the permanent zoning classifications recommended by the City Planning Commission.

After the enactment of the October 16 ordinance, citizens’ groups circulated petitions to repeal such ordinance and thus, in effect, to cause plaintiff’s land to revert to its original temporary zoning.

On December 11, 1975, City’s governing body certified the petitions as sufficient and, after a motion to repeal the October 16 ordinance was defeated, called an election for January 17, 1976, for the purpose of submitting the proposed repealing ordinance to the voters. At the election held on January 17, 1976, the vote was in favor of the repeal of the ordinance of October 16, 1975. The election results were canvassed by City’s governing body and the result officially declared on January 19, 1976.

Article IV, § 35 of City’s charter provides that the voters shall have the power to approve or reject at the polls “any ordinance passed by the council save one appropriating money, levying taxes, or fixing utility rates, or any ordinance submitted by the council of its own initiative to a vote of the electors.” This section provides that “Within forty days after the enactment by the council of any ordinance which is subject to a referendum, a petition signed by qualified electors of a [sic] city equal in number to at least ten per cent of the electors qualified to vote at the last preceding regular election may be filed within the city clerk requesting that any such ordinance be .either repealed or submitted to a vote of the electors.”

Clearly, the above charter provision contains no language excluding zoning ordinances from its provisions.

Article I, § 3, Para. 9 of the Charter grants the power to the Council to regulate the zoning and use of land and expressly adopts the State Zoning Enabling Act (Articles 1011a to lOllj, Tex.Rev.Civ.Stat.Ann. (1963)).

Plaintiff contends that a zoning ordinance is not subject to the initiative and referendum provisions of City’s charter. We agree.

At all times pertinent to this litigation, the power of Texas cities to zone was governed by the provisions of Articles 1011a-1011m, Tex.Rev.Civ.Stat.Ann. Pertinent provisions require a public hearing, following notice of at least 15 days, before regulations may be adopted or amended. Articles lOlld, lOlle.

Article lOllf requires the appointment of a Planning Commission to recommend the boundaries of the various zoning districts, and provides that the municipal legislative body shall take no action until it has received the final report of the Commission. This statute also requires written notice of all hearings before the Zoning Commission “on proposed changes.”

There are no constitutional or statutory provisions relating to initiative and referendum, except for isolated statutory provisions for referendum with respect to certain subjects not here relevant. The Zoning Enabling Act contains no such provisions.

In Hancock v. Rouse, 437 S.W.2d 1, 4 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n.r.e.), the Court said:

A zoning ordinance enacted by the City Council without the notice and hearing required by statute would be invalid and the power of the people to legislate directly is subject to the same limitations. Since notice and hearing are clearly required by the . . . general law of the State, as a prerequisite to the enactment of Zoning Ordinances, and since notice and hearing have no place in the process of legislating through initiative and referendum, the power of the people ... to legislate directly does not extend to the subject of zoning.

In Bolton v. Sparks, 362 S.W.2d 946, 950 (Tex.1962), it was recognized that zoning ordinances and amendments to such ordinances are invalid where the mandatory provisions of the statutes concerning notice and hearing have been ignored, saying that the requirement of notice and hearing are intended for the protection of property owners against arbitrary action and that compliance with the mandatory provisions of the statutes is essential to the exercise of jurisdiction by municipal governing bodies and each act must be performed.

To give effect to the election in this case, assuming that the result of the election was not a repeal of the zoning ordinance previously passed by the municipal legislative body, would be to add a procedural step to zoning which is not required by the comprehensive provisions of the Enabling Act. A city can no more add a step to the procedures required by state law than it can omit one. City of San Antonio v. Lanier, 542 S.W.2d 232 (Tex.Civ.App.—San Antonio 1976, writ ref’d n.r.e.).

Our conclusion finds support in decisions from other jurisdictions. Forman v. Eagle Thrifty Drugs and Markets, 89 Nev. 533, 516 P.2d 1234 (1973); Hurst v. City of Burlingame, 207 Cal. 134, 277 P. 308 (1929); cf. Township of Sparta v. Spillane, 125 N.J. Super. 519, 312 A.2d 154 (1973), where the decision that zoning ordinances are not subject to the initiative and referendum process was based on the necessity for continuity and expertise in zoning, rather than on the statutory requirements for notice and hearing. San Diego Building Contractors Ass’n v. City of San Diego, 13 Cal .3d 205, 118 Cal.Rptr. 146, 529 P.2d 570 (1974), is not in conflict with the conclusion we have reached, since in that case there was not statutory requirement of notice and hearing and the court was merely considering whether the constitutional requirements of due process were in themselves sufficient to invalidate the adoption of zoning ordinances without notice and hearing. The same is true of City of Fort Collins v. Dooney, 178 Colo. 25, 496 P.2d 316 (1972), where the court concluded that the election campaign was sufficient notice and hearing insofar as the requirements of due process are concerned.

The judgment of the trial court is reversed and judgment is here rendered declaring that the election held on January 17, 1976 did not affect the validity of Ordinance No. 45863 adopted by the City Council of the City of San Antonio on October, 16, 1975, and that such Ordinance No. 45863, assigning permanent zoning classification to plaintiff’s land, is in full force and effect.

MURRAY, J., did not participate in the disposition of this case.


author: MURRAY, Chief Justice.

text:
    Esperanza ALVAREZ et al., Appellants, v. WESTCHESTER FIRE INSURANCE COMPANY, Appellee.
    No. 15832.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.
    Rehearing Denied March 1, 1978.
    Pepos S. Dounson, San Antonio, for appellants.
    Damon Ball, Groce, Locke & Hebdon, San Antonio, for appellee.
   MURRAY, Chief Justice.

This is a summary judgment case growing out of a dispute over $10,000.00 that was paid into the register of the court that was recovered in a wrongful death action. Antonio N. Alvarez, husband of Esperanza Alvarez, appellant, was killed instantly in an automobile accident on October 25,1973, while in the course and scope of his employment by and for Charles Carroll Company. In addition to appellant, Esperanza Alvarez, he was survived by four children all of which were over the age of 18 at the time of his death. The owner and operator of the car was Virginia Howard Williams, who was insured by Government Employees Insurance Company with a policy having an applicable limit of liability of $10,000.00. Charles Carroll Company was insured for workmen’s compensation by Westchester Fire Insurance Company, appellee. At the time of Mr. Alvarez’ death the maximum weekly benefit payable under the Workmen’s Compensation Law was $63.00, and appellee started paying Mrs. Alvarez $63.00 per week within seven days of the date of the accident. The appellant, Esperanza Alvarez, and her children, filed suit against Virginia Howard Williams for the wrongful death of Antonio N. Alvarez and appellee intervened in this suit on its right of subro-gation. This suit was settled by an agreed judgment on January 15, 1976, and the funds were paid by check, payable jointly to appellant, Esperanza Alvarez, her children, their attorney, the appellee, and its agent. A dispute arose as to this $10,000.00 which has resulted in the present lawsuit. On August 24, 1976, Appellee filed what is designated as a cross-action against Victor A. Speert, attorney for appellant. In this cross-action appellee alleges that this suit was brought at the bequest of Victor A. Speert and that the suit is groundless and brought in bad faith or for the purpose of harassment, and prays that Victor A. Speert pay reasonable attorney’s fees, expenses, and court costs. This cross-action has been severed from the main suit by the trial court. From the voluminous papers contained in the transcript, we determine that there are only two parties, to-wit: Esperanza Alvarez, appellant, and Westches-ter Fire Insurance Company, appellee.

In appellant’s second original amended petition she alleges that she is entitled to at least $3,500.00 of the $10,000.00, and that the appellee has refused to pay said sum to her and that such refusal on the part of appellee is arbitrary and capricious and in violation of Art. 21.21-2 of the Insurance Code of the State of Texas known as the Unfair Claims Settlement Practice Act, Tex.Rev.Civ.Stat.Ann. (Supp.1976), and specifically Subchapters (D) and (E). Appellant also alleges that she is entitled to have her damages trebled under the provisions of the Tex.Bus. & Comm.Code Ann. § 17.-50(b)(1) (1968). Defendant’s answer consists of a general denial only.

Paragraph (c) of Rule 166-A, Tex.R.Civ.P. (1978), was amended in 1971. It now contains this requirement:

The motion for summary judgment shall state the specific grounds therefor.

The motion filed by appellee in this case states that the appellee was not liable to the appellant for the reason that Art. 21.-21-2 of the Insurance Code does not authorize suits of any kind by private citizens, and that § 17.50 of the Business & Commerce Code is inapplicable for the simple reason that the said act does not apply to insurance policies or claims thereunder.

We agree with appellee that Art. 21.21-2 of the Insurance Code of the State of Texas does not authorize suits of any kind by a private citizen, and that § 17.50 of the Business & Commerce Code does not apply to the sale of insurance policies or the claims thereunder. Russell v. Hartford Casualty Ins. Co., 548 S.W.2d 737 (Tex.Civ.App.—Austin 1977, writ ref’d n.r.e.).

The motion in our case does not state any specific grounds upon which a judgment awarding the $10,000.00 to appel-lee could be based, so it does not comply with Rule 166-A(c) as amended. See Boney v. Harris, 557 S.W.2d 376 (Tex.Civ.App.—Houston [1st Dist.] 1977).

We do not reach the appellant’s other points of error. The judgment of the trial court is reversed and remanded.


author: CADENA, Justice.

text:
    Beatrice HUIZAR, Appellant, v. FOUR SEASONS NURSING CENTERS OF SAN ANTONIO, Appellee.
    No. 15830.
    Court of Civil Appeals of Texas, San Antonio.
    Jan. 25, 1978.
    Rehearing Denied March 8, 1978.

      John D. Wennermark, San Antonio, for appellant.
    G. G. House, House, Mercer, House, Brock & Wilson, San Antonio, for appellee.
   CADENA, Justice.

Plaintiff, Beatrice Huizar, Administratrix of the Estate of Antonia Lopez, deceased, appeals from the rendition of summary judgment that she take nothing in her suit against defendant, Four Seasons Nursing Centers of San Antonio, to recover for injuries suffered by her decedent while a patient at a nursing home operated by defendant.

Plaintiff alleged Mrs. Lopez was injured as a result of specified acts of negligence on the part of defendant’s employees. The petition then alleges that, at the time Mrs. Lopez was admitted to the nursing home, she and defendant “entered into a contract by the terms of which Defendant agreed to furnish” Mrs. Lopez “with adequate, safe, and proper care and nursing facilities,” but that although Mrs. Lopez performed “all the stipulations, conditions, and agreements to be performed on her part, . . Defendant failed, refused and neglected to provide adequate, safe and proper care and facilities, causing” Mrs. Lopez “to suffer the injuries aforesaid.”

After filing a general denial, defendant filed a motion for summary judgment on the grounds that there were no genuine issues of fact and that, as a matter of law, plaintiff’s action was barred by the two-year statute of limitations.

In answer to interrogatories, plaintiff stated that the contract between Mrs. Lopez and defendant was in writing.

After a hearing at which neither plaintiff nor her counsel appeared, the trial court granted defendant’s motion for summary judgment. The judgment, without making mention of limitations, stated that there was no issue of material fact.

Plaintiff, while conceding that her cause of action in tort is barred by limitations, contends that her cause of action based on contract is governed by Art. 5527, Tex.Rev.Civ.Stat.Ann. (1977), the four-year statute of limitations, and not by Art. 5526, the two-year statute.

Mrs. Lopez was injured on February 26, 1973. Suit was filed on May 19, 1976.

It is not always easy to articulate the distinction between actions in tort and actions based on contract. It has been said that an action sounds in contract when the duty breached arises out of a contract, while an action in tort arises out of a breach of duty imposed by law independently of the existence of a contract. International Printing Pressmen and Asst’s Union v. Smith, 145 Tex. 399, 198 S.W.2d 729, 735 (1946). But such formula is useless in a case where the breach of the noncon-tractúal duty to use reasonable care is also a breach of the duty imposed by a contract. Such a situation is encountered in malpractice cases.

The majority rule in this country is that, despite allegations of contract, malpractice suits are governed by the statute of limitations applicable to tort actions, rather than the statute applicable to actions for breach of contract because the cause of action sounds in tort rather than contract. 5A Frumer, Personal Injury: Actions, Defenses, Damages 80 (1967); Annot. 80 A.L.R.2d 320, 326-29 (1961).

In Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.—Waco 1940), aff’d, 138 Tex. 277, 158 S.W.2d 486 (1942), plaintiff alleged that defendant was employed by plaintiff to perform an operation on plaintiffs wife and that defendant accepted such employment. Plaintiff also alleged that defendant was negligent. The court held that the limitation applicable to suits for injury to the person (Art. 5526, § 6) was applicable.

In Pecos & N. T. Ry. Co. v. Amarillo St. Ry. Co., 171 S.W. 1103, 1105 (Tex.Civ.App.—Amarillo 1914, no writ), it was said that if the transaction has its origin in a contract which places the parties “in such relation as that in performing or attempting to perform the service promised the wrong is committed, then the breach of the contract is not the gravamen of the action.” That is, despite the existence of a contract, if plaintiff pleads negligence, or pleads fact which would constitute negligence, the courts, as did the court in Thompson, will consider the cause of action to be in tort rather than in contract, despite the existence of a contract which imposed, by its terms, a duty on defendant to exercise reasonable care. In such cases, the contract is said to be “merely an inducement.” Smith, supra, 198 S.W .2d at 735.

The judgment of the trial court is affirmed.

MURRAY, J., did not participate in the disposition of this case.


author: MURRAY, Justice.

text:
    ECONOMIC OPPORTUNITIES DEVELOPMENT CORPORATION OF SAN ANTONIO and Bexar County, Appellant, v. Albert BUSTAMANTE, Commissioner, Precinct One, Bexar County, Texas et al., Appellees.
    No. 15939.
    Court of Civil Appeals of Texas, San Antonio.
    Feb. 1, 1978.
    Rehearing Denied March 1, 1978.

      Les Mendelsohn, San Antonio, for appellant.
    Bill M. White, Crim. Dist. Atty., Keith W. Burris, Lisa M. Beck, Asst. Crim. Dist. At-tys., San Antonio, for appellees.
   MURRAY, Justice.

The appellant, Economic Opportunities Development Corporation of San Antonio and Bexar County, applied to the 57th District Court of Bexar County for a writ of mandamus against appellee, Albert Busta-mante, Commissioner, Precinct One, Bexar County, Texas, seeking to compel appellee to make certain records available for appellant’s inspection pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252-17 (1970), known as the Texas Open Records Act. On July 5, 1977, after trial on the merits, the trial court rendered judgment denying all relief sought by appellant and this appeal is from that decree.

During the month of May 1977, appellee received into his possession affidavits and documents submitted to him by persons making charges of illegal conduct against appellant. The subject matter of those affidavits thereafter appeared in articles published in local newspapers and local broadcast media. On May 27, 1977, a board member of appellant was allowed to view the affidavits which had been referred to in the newspapers but no copies were delivered to appellant at that time. On June 8, 1977, a board member of appellant appeared before the appellee and demanded delivery of the affidavits; that demand was refused. On June 10, 1977, appellee was served with a petition in this suit, however, appellee had already delivered the originals of the affidavits to the Government Accounting Office and all remaining copies to the Federal Bureau of Investigation. At that time appellee no longer had possession of documents or copies of documents sought by this suit.

Appellant’s six points of error are as follows:

Point One. The trial court erred in failing to conclude that the documents were received by Commissioner Bustamante as a representative of Commissioners Court, rather than in his individual capacity. Point Two. The trial court erred in concluding that Commissioner Bustamante’s action did not constitute action by a ‘Governmental Body’ within the purpose of Article 6252-17a.
Point Three. The trial court erred in concluding that the statute does not require that records be made available to any person, once they are released to the media.
Point Four. The trial court erred in concluding that appellee was under no duty to request an attorney general’s opinion. Point Five. The trial court erred in concluding that the records were exempted from disclosure as ‘part of an on-going investigation.’
Point Six. The trial court erred in concluding that it could not compel Commissioner Bustamante to produce the re-courds [sic].

No evidence indicating any involvement of the other members of the Bexar County Commissioners Court in the above matter was presented. While this case was on appeal, the appellee has resigned as County Commissioner and the Honorable Leo Mendoza is now Commissioner, Precinct One, Bexar County, Texas.

Without deciding the legal duty of appellee to furnish copies of the affidavits to appellant, we reach the conclusion that we are required to sustain the trial court’s decision in this case. A court will not grant a writ of mandamus unless it is convinced that the issuance of such a writ will effectively achieve the purpose sought by appellant. Holcombe v. Fowler, 118 Tex. 42, 9 S.W.2d 1028 (1928); Parks v. Elliot, 465 S.W.2d 434 (Tex.Civ.App.—El Paso 1971, writ ref’d n. r. e.); 37 Tex.Jur.2d, Mandamus § 8 (1962).

Appellant, in his brief, said the issue in this appeal is whether appellee acted in accordance with requirements of the Texas Open Records Act and that the resolution of this appeal should not rest on whether ap-pellee can and will comply with the court order. We disagree. The trial court found sufficient evidence that the documents are no longer in possession of the County Commissioner, Precinct One, Bexar County, and to require that office to furnish copies of the documents that are no longer in that office would be requiring an impossible act. State v. Ripke, 426 S.W.2d 599 (Tex.Civ.App.—Corpus Christi 1968, writ ref’d n. r. e.); 55 C.J.S. Mandamus § 14 (1948).

Nothing would be gained by discussing all of the points raised by the parties in their briefs. The point that we have discussed demonstrates a compelling reason why we are required to sustain the trial court’s decision in this case.

The judgment is affirmed.