author: ONION, Presiding Judge. DOUGLAS, Judge

text:
    Ex parte Roy Cleaver JONES
    No. 52590.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston,
    Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

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

Petitioner was indicted by the Harris County Grand Jury for four separate offenses of robbery by assault under the old Penal Code in trial court cause nos. 195,-054^195,057. On August 27,1973, petitioner entered a plea of not guilty in cause no. 195,057 and was convicted by a jury, being sentenced to a twenty-five (25) year term of imprisonment. Thereafter, petitioner entered pleas of guilty to the other three pending indictments and was assessed three 25 year sentences for those offenses.

Petitioner filed notice of appeal in all four cases, and the records were transmitted to this court. On appellate review of these convictions this court affirmed three of the convictions by per curiam, unpublished opinions on February 4, 1976. However, we reversed the conviction in trial court cause no. 195,057 due to a fatally defective indictment. See Jones v. State, 535 S.W.2d 184 (Tex.Cr.App.1976).

Subsequently, petitioner filed his application for writ of habeas corpus with the trial court pursuant to the provisions of Article 11.07, supra, challenging the validity of the convictions in cause nos. 195,054-195,056, claiming that the indictments in those cases were also fatally defective for the same reasons set out in our opinion in Jones v. State, supra. The trial court entered findings of fact and conclusions of law recommending that this application for writ of habeas corpus be granted and that the convictions be set aside and the indictments dismissed.

We are in complete agreement of the trial court’s findings. The indictments for robbery by assault in the three challenged convictions are fatally defective under this court’s prior opinions in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973); Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975); Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Sellers v. State, 536 S.W.2d 564 (Tex.Cr.App.1976); Jones v. State, supra.

Furthermore, it is well settled that fundamentally defective indictments may be challenged by way of post-conviction writs of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

For the reasons above stated, the writ of habeas corpus is granted, and the convictions in cause nos. 195,054,195,055 and 195,-056 are set aside and said indictments are ordered dismissed.

DOUGLAS, Judge

(dissenting).

The majority sets aside the convictions in three cases for the offense of robbery after appellant had entered pleas of guilty and was assessed a punishment of twenty-five years in each case. These cases were affirmed by this Court after counsel had filed a brief that the appeals were frivolous. Counsel was correct in his evaluation of the cases.

Article 1408 of the former penal code under which appellant is convicted provides that one who takes from the possession of another property with intent to appropriate it shall be guilty of the offense of robbery. Article 21.08, V.A.C.C.P., provides that where one person owns property and another person has possession of the same the ownership may be alleged in either.

In the present cases the ownership was alleged in the person who possessed the property. In Clark v. State, 527 S.W.2d 527 (Tex.Cr.App.1975), this Court wrote:

“It is only where the victim of the assault has no right to possession whatsoever that a charge of robbery may not be sustained.”

The trial court followed the then Penal Code and the Code of Criminal Procedure. A majority of this Court has added an element to the offense of robbery in requiring an allegation that an owner must be named in the indictment as well as the one who possessed the property taken in the robbery. Several cases have been reversed because this new element has been enacted by a majority of this Court. Reversals are not enough for the majority. Now it is setting aside final convictions after they have been affirmed by this Court.

Jones entered pleas of guilty to robbery. He knew he was charged with robbery. He was proved to be guilty of robbery. He did not question the indictment, probably for the reason that it was good under the statutes. Now a majority releases Jones on something not required by the statute. The majority has acted as the Legislature and also counsel for Jones.

When is there ever to be finality in convictions. If one does not know what he is charged with he should file an exception or motion to quash the indictment. Under cases such as this, if he is found not guilty he wins. If he is found guilty, he gets a free ride by either a reversal or relief by habeas corpus after the conviction is final. This amounts to a loading up of court dockets for some useless unauthorized rule. Neither the Constitution of Texas nor the Constitution of the United States requires such needless procedure. See the dissenting opinion in Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975).

No reversible error has been shown. The relief sought should be denied.

      . In two of the causes petitioner was indicted as Royal Cleaver Jones.

      . The records in cause nos. 195,054-195,056 were received in this court on October 29, 1975. However, the record in cause no. 195,057, the case in which the petitioner entered his plea of not guilty to the jury, was not filed in this court until January 19, 1976. The delay was apparently due to the court reporter’s delay in completing the statement of facts of the jury trial.

      . Appellant’s court-appointed counsel on appeal filed frivolous appeal briefs in all four of these cases, and thus the question of the defective indictments was not raised in any of these cases before this court. This court discovered the defective indictment pursuant to our authority to review the records for error in the “interest of justice.” See Article 40.09, § 13, Vernon’s Ann.C.C.P.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Randy Duane THORNTON, Appellant, v. The STATE of Texas, Appellee.
    No. 52597.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Ernest W. Rothfelder, Fort Worth, for appellant.
    Jerry W. Woodlock, Dist. Atty., Gaines-ville, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of over four ounces of marihuana. Punishment was assessed by the jury at five years.

The indictment alleged the offense occurred on or about June 5, 1974, and the record reflects that trial was on April 7, 1975.

Appellant in his second ground of error contends that “the argument of the prosecutor was prejudicial injecting harmful un-sworn testimony before the Jury.”

In light of the State’s response that the complained-of argument was invited, we look first to the following argument of appellant:

“Let me ask you this; where are those witnesses they are talking about, Baird and the other, why isn’t he here telling you about going to Kansas with him, or those others. Why aren’t they here to tell about the deal that they had, they were in business together, they were getting marijuana together for sale. Why couldn’t they bring them in here to testify? They are witnesses to the whole transaction. They are the ones that they brought in what ‘they’ said through the agent instead of letting them come in, which I objected to. I say if they’ve got something to say about this transaction, they got something to say about Randy, let them say it from the witness stand, but they aren’t here. . . . ”

The record reflects that the following occurred during the argument of the prosecutor:

“ . . . Well, Mr. Rothfelder asked where Baird and Munoz are. They are in Huntsville doing seven years on this same offense. That’s where Baird and Munoz are. Mr. Rothfelder called me Thursday the week before this started, and asked me was I going to have Baird and Munoz here. I said, ‘No, Mr. Rothfelder, I’m not going to have Baird and Munoz here, but if you want them here—
“MR. ROTHFELDER: Your Honor, I object to this type of argument, it’s not in evidence.
“MR. WOODLOCK: Your Honor, he invited this, he asked why I didn’t have them here, and I’m entitled to tell why they are not here.
“MR. ROTHFELDER: The time to tell was during the trial, and nobody testified to that.
“MR. WOODLOCK: He invited it.
“THE COURT: I’m going to overrule the objection.
“MR. ROTHFELDER: Please note my exception.
“MR. WOODLOCK: I talked to him Thursday of last week, and said that I was not going to have them here, but that if he wanted them here to testify he could get out a bench warrant. I said, if you’ll be up here Friday, which was last week, with the bench warrant, I’ll make sure the Sheriff has them here. He didn’t show up Friday. I thought to myself, well, we’ll pick a jury Monday, probably start testimony Tuesday. If he wants them up here, he could get out a bench warrant Monday and I’ll have to (sic) Sheriff go down there and have them here Tuesday morning. They are not here, but it’s not just because I didn’t call them. I didn’t think I needed them to make my case. I told him he could have them here.
“MR. ROTHFELDER: Your Honor, I object to this further argument as I have no way to answer to the things that he said that I said. I think it’s improper argument.
“MR. WOODLOCK: He opened it up. If he didn’t want me to argue, he shouldn’t have argued.
“THE COURT: I overrule the objection. “MR. ROTHFELDER: There’s nothing in the record to show why they are in Huntsville.
“THE COURT: Counsel, I’ve already ruled.”

In Reynolds v. State, Tex.Cr.App., 505 S.W.2d 265, we stated that the rule on invited error is that the prosecutor may go outside the record in his argument to respond to argument of defendant’s counsel that is outside the record. Here, defense counsel’s argument was not an impermissible venture outside the record, and the State was not entitled to respond to the argument by going beyond the record.

In Bailey v. State, Tex.Cr.App., 531 S.W.2d 628, a case very similar to the instant case, the defense counsel argued, “ . . . But, where is Earnest Minnie-field? Why didn’t The State put him on the stand and let him tell who was in the store?

. ” The prosecutor in Bailey replied, “Now, Mr. Davis says, ‘Well, where is Earnest Minniefield?’ I just want to tell you where he is. I’m happy to tell you where he is. He’s in the Texas Penitentiary. . . . I’m just more than happy to tell you where he is. And, I’m — he said, ‘Well, why wouldn’t Minniefield testify? Why wouldn’t he?’ Well, I’m here to tell you that Minniefield had an opportunity and he refused to testify against Bailey. Minniefield has been convicted of this armed robbery just like Bailey should be.”

We reversed in Bailey, holding that since defense counsel’s argument was not objectionable, and no evidence was in the record that Minniefield was serving a sentence in prison for armed robbery, the prosecutor’s remarks injected new and harmful facts into the case.

In the case before us, there is nothing in the record concerning pre-trial conversations between appellant’s attorney and the prosecutor regarding the possible testimony of Baird or Munoz. Likewise, there is no evidence in the record that Baird and Munoz were in Huntsville serving seven years “for this same offense.” As a general rule, such information cannot be admitted into evidence because upon a trial of one charged with crime, it is not permissible to show that another jointly or severally indicted for the same offense has been convicted or acquitted. Walker v. State, Tex.Cr.App., 530 S.W.2d 572; Tucker v. State, Tex.Cr.App., 461 S.W.2d 630; Bacon v. State, 147 Tex.Cr. 605, 183 S.W.2d 177. The unsworn testimony of the prosecutor injected new facts into the case which were harmful and prejudicial to appellant.

The prosecutor could have replied that Baird and Munoz were equally available for witnesses for the defense as they were for the State, Bailey v. State, supra, but the prosecutor could not go outside the record or inject facts that were otherwise not admissible.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, J., concurs in the results.


text:
    Ex parte Jewerl BANKS, Jr.
    No. 52634.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Jewerl Banks, pro se.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

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

Petitioner was indicted by the Harris County Grand Jury for five separate offenses of robbery by assault, under the old Penal Code, in Cause Nos. 187154, 187485, 188503, 188770, and 188777.

On May 22, 1973, appellant made his appearance in the 174th District Court of Harris County, and entered pleas of guilty to the court to all of these above-mentioned indictments. Appellant was sentenced to five concurrent twenty (20) year terms of imprisonment, and no appeals were taken of these convictions.

Subsequently, petitioner filed his application for writ of habeas corpus in this Court, contending that the indictments in these five causes were fundamentally defective for the reasons set out in Lucero v. State, 502 S.W.2d 128 (Tex.Cr.App.1973) and Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975). The trial court denied the application without findings of fact and conclusions of law.

In reviewing the records before this Court and the indictments in these causes, we are in agreement with petitioner that the indictments for robbery by assault are fatally defective for the same reasons as set out in Lucero v. State, supra, and Bouie v. State, supra. See also Batro v. State, 531 S.W.2d 614 (Tex.Cr.App.1975); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Jones v. State, 535 S.W.2d 184 (Tex.Cr.App.1976).

Furthermore, it is apparent that petitioner may challenge fundamentally defective indictments by way of a post conviction application for writ of habeas corpus. See Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975); Ex parte Roberts, 522 S.W.2d 461 (Tex.Cr.App.1975).

For the reasons above stated, the writ of habeas corpus is granted, and the convictions in the above-mentioned cause numbers are set aside and said indictments are ordered dismissed.

DOUGLAS, Judge

(dissenting).

The relief sought should be denied because the only reason for the indictments in the five causes to be fundamentally defective is that the majority of the Court has added an element to the offense of robbery under the former penal code which was not required by any statute. These convictions were final. We have enough cases without causing new ones by enacting clauses into the statute. See the dissenting opinion in Bouie v. State, 528 S.W.2d 587 (Tex.Cr.App.1975), for a full discussion of the subject.


author: DALLY, Commissioner.

text:
    Ex parte Grady MOFFETT.
    No. 52635.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Ted Butler, Dist. Atty. and Douglas C. Young, Asst. Dist. Atty., San Antonio, Jim D. Vollers, State’s Atty., David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post conviction habeas corpus proceeding filed pursuant to the provisions of Article 11.07, V.A.C.C.P. in which the petitioner collaterally attacks an order revoking probation. If the order revoking probation is based on no evidence — rather than merely insufficient evidence — there is a violation of the due process clause of the United States Constitution and a collateral attack on the order of revocation would be proper. The pertinent facts to be considered follow.

On June 19, 1973, after the appellant entered a plea of guilty before a jury in Cause 73-CR-496, he was found guilty of the offense of robbery. The jury assessed punishment of imprisonment for 10 years and recommended that the appellant be granted probation; probation was granted by the court.

On June 20, 1973, the appellant, after entering a plea of guilty before the court in Cause 73-CR-620-B, was found guilty of the offense of robbery, which was committed on December 16, 1972. The court set punishment of imprisonment for 10 years, and the appellant was sentenced after he waived the time for filing of motions for new trial and in arrest of judgment.

A motion was then filed to revoke probation in Cause 73-CR-496. The sole ground for revocation alleged that “on or about the 20th day of June, A.D.1973 . . . the defendant was convicted of the felony offense of robbery by assault . . .’’in Cause 73-CR-620 — B. On June 20,1973, the court revoked probation and sentenced the appellant, the sentences in both causes to be served concurrently. No appeals were taken either from the judgment of conviction in Cause 73-CR-620-B, the judgment when probation was granted in Cause 73-CR-496, or the order revoking probation in Cause 73-CR — 496.

The offense which resulted in the conviction in Cause 73-CR-620-B was committed prior to the conviction and the granting of probation in Cause 73-CR-496. The appellant argues that evidence of the commission of the offense which resulted in the conviction in Cause 73-CR-620-B, since it occurred before he was granted probation, could not be used to revoke probation in Cause 73-CR-496. With this contention we agree.

The condition of probation in Cause 73-CR-496 is that the probationer “neither commit nor be convicted of any offense against the laws of Texas . . The statutory condition of probation is that a probationer shall “[c]ommit no offense against the laws of this State or of any other State or of the United States.” Article 42.12, Sec. 6 a, V.A.C.C.P. The appellant urges that the part of the condition imposed that provides the probationer not be convicted oí any offense is unreasonable and void.

All of the statutory conditions of probation require certain conduct of the probationer or prohibit certain conduct by the probationer following the granting of probation. The statutory conditions of probation contained in Article 42.12, Sec. 6, V.A. C.C.P., are:

“(a) Commit no offense against the laws of this State or of any other State or of the United States;
“(b) Avoid injurious or vicious habits;
“(c) Avoid persons or places of disreputable or harmful character;
“(d) Report to the probation officer as directed;
“(e) Permit the probation officer to visit him at his home or elsewhere;
“(f) Work faithfully at suitable employment as far as possible;
“(g) Remain within a specified place;
“(h) Pay his fine, if one be assessed, and all court costs whether a fine be assessed or not, in one or several sums, and make restitution or reparation in any sum that the court shall determine; and
“(i) Support his dependents.”

The condition that the probationer not be convicted of an offense is not consonant with the statutory conditions because it is not dependent on the appellant’s conduct following the granting of probation. This is in contrast with the statutory condition that the probationer commit no offense, which is dependent on his conduct after he was placed on probation. A conviction cannot be the ground for revocation of probation if that conviction is for an offense committed before the defendant was granted probation.

The trial court’s interpretation of this non-statutory condition, that the appellant not be convicted of an offense, was unreasonable in the circumstances of this case. Since the conviction for which the court revoked probation was for an offense committed before the appellant was granted probation, the order of revocation is unsupported by any proper evidence. There being no evidence to support the order revoking probation, a violation of due process has been shown and the order is subject to collateral attack by habeas corpus.

Moreover, Article 42.12, Sec. 3a, V.A.C.C.P. provides that if probation is granted by a jury the court may impose only the statutory conditions of Article 42.-12, Sec. 6, V.A.C.C.P.; O’Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967). However, when probation is recommended by a jury the trial court may flesh out and make more specific and definite the statutory conditions of probation. Flores v. State, 513 S.W.2d 66 (Tex.Cr.App.1974). The condition of probation permitting revocation for conviction does not flesh out or make more specific and definite a statutory condition; it departed from the statutory condition and imposed a distinctly separate condition as it was interpreted in this case.

The relief requested is granted. It is ordered that the order revoking probation be set aside.

Opinion approved by the Court.

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

      . In Peach v. State, 498 S.W.2d 192 (Tex.Cr.App.1973), this Court refused to discuss whether a non-statutory condition of probation was reasonable in light of the fact that the non-statutory condition was not the ground for revocation. Subsequently, in Salinas v. State, 514 S.W.2d 754 (Tex.Cr.App.1974), a non-statutory condition of probation imposing a 9:00 p. m. curfew was discussed and held to be reasonable.

      . A similar condition of probation that the probationer should not commit and be convicted of an offense against the laws of this state did not require proof of a conviction but only proof of the commission of the offense. Hancock v. State, 491 S.W.2d 139 (Tex.Cr.App.1973).


text:
    Ex parte James TURNER.
    No. 52855.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.
    Michael A. Thomas, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and David A. Hess, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is a post-conviction habeas corpus proceeding authorized by Article 11.07, V.A. C.C.P.

The petitioner was convicted for the offense of burglary in the 140th District Court of Lubbock County, on September 21, 1965; two prior felony convictions were alleged for purposes of enhancement of punishment. On October 21,1965, the petitioner was sentenced to life imprisonment as an habitual criminal. That conviction, in which the appellant did not file a brief, was affirmed in Turner v. State, 409 S.W.2d 400 (Tex.Cr.App.1966). Thereafter an out-of-time appeal was allowed, an attorney was appointed to represent Turner on appeal, and this Court again affirmed the conviction in Turner v. State, 471 S.W.2d 56 (Tex.Cr.App.1971).

Petitioner urges that he was denied the right to call coindietee James Arthur Columbus as a witness on the basis of Article 82, V.A.P.C. and Article 711, V.A.C.C.P. Those statutes were held unconstitutional in Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), because they denied to a defendant his constitutional rights to have compulsory process for obtaining witnesses. This Court held in Ex parte Pennington, 471 S.W.2d 578 (Tex.Cr.App.1971), that the holding in Washington v. Texas, supra, will be given full retroactive application.

The application for habeas corpus now before us was filed in the 140th District Court of Lubbock County and a hearing to develop the facts was held.

At petitioner’s writ hearing Columbus testified that if he had been allowed to testify at petitioner’s trial, his testimony would have been that he and Turner had been hired to clean the building in question by Herman Gilbert; that they were let in the front door by Gilbert; that he told them to wait while he went to get some detergent; and that while they were waiting the police arrested them. Petitioner testified at the hearing that he wanted Columbus to testify at his trial and that his lawyer told him that the District Attorney would not allow him to testify because of the law in effect at that time. Petitioner also offered the testimony of Alton Griffin, who was District Attorney in 1965. Griffin testified that although he had only a faint recollection of the case, that very definitely he would not have allowed co-indictee Columbus to testify because he was not a qualified witness under the law at that time. An affidavit of Dave Everton, petitioner’s attorney at trial, states that he did not call Columbus because his testimony would not have been allowed because of the law in effect at that time.

Judge Denzil Bevers at the habeas corpus hearing found, among other things, that at the time of appellant’s trial Columbus was a willing.and available witness; he was physically and mentally competent to testify; his testimony would have been material and relevant; and that each defendant related the same defense in their respective trials. He also found that petitioner did not subpoena Columbus, did not advise the court of his desire, and did not perfect a bill of exception. However, the judge found that petitioner’s lawyer probably did seek to obtain the District Attorney’s agreement to let Columbus take the stand, but was unsuccessful.

The State argues that the disposition of the petitioner’s case is controlled by the “Zerschausky line of cases.” This Court held in Ex parte Zerschausky, 417 S.W.2d 279 (Tex.Cr.App.1967), that the Washington case was not inconsistent with its holding that relief be denied, because the petitioner at his original trial never sought admission of the testimony of the witnesses indicted as accessories.

Zerschausky subsequently sought relief by way of writ of habeas corpus in the federal courts. The Fifth Circuit affirmed the District Court’s denial of relief in Zerschausky v. Beto, 396 F.2d 356 (5th Cir. 1968). In doing so Judge Goldberg stated:

“The district court also found that the testimony which would have been given by the accessories would have conflicted in several respects with the appellant’s theory of self-defense. Finally, the court determined that the testimony would have been highly incriminating to those giving it. Noting that the appellant had waited to complain until charges had been dropped against the accessories and until the statute of limitation had run, the district court found, ‘the conclusion is inevitable that they were either deliberately by-passed as a part of the trial strategy, or that the present attempt to raise the constitutional issue had come as an afterthought.’ ” 396 F.2d at 358.

The Court of Appeals concluded that appellant’s failure to call the witnesses was the result of voluntary and conscious trial strategy and not mere docile obedience to the Texas statute.

The case at hand is distinguishable from the Zerschausky cases. Here the district court found that the witness Columbus was available and willing to testify; he was physically and mentally competent; his testimony would have been material and relevant and each defendant related the same defense in their respective trials. Furthermore, the court concluded after the habeas corpus hearing, “With the defense being the same for each of them and with Turner knowing that he had not been allowed to testify at the Colümbus trial, it seems almost conclusive that his failure to insist on having Columbus for a witness was merely in docile obedience to the Statutes and not a deliberate trial strategy.”

This Court denied relief in the case of Ex parte Kirk, 478 S.W.2d 508 (Tex.Cr.App.1972), stating that the facts “sufficiently withdrew it from the reaches of Washington.” The facts in Kirk are also distinguishable from the case at bar. In Kirk the petitioner alleged that if his co-principal, Luton, had beén called as a witness, he would have testified that he and' a second person, not the petitioner, committed the robbery for which the petitioner was convicted. The district court at the writ hearing found that the petitioner never requested or attempted to call Luton as a witness nor did he show that the witness was willing to testify. Tha record did not show what Luton would have testified to at the trial, nor did the petitioner at any time ask Luton, before Luton was executed, the name or identity of the alleged second robber.

In the instant case, while petitioner did not call his co-indictee Columbus to the stand or have a subpoena issued to compel his attendance, the facts as found by the trial court are sufficient to show that this was not due to any intentional waiver or trial strategy. The petitioner’s trial was on September 21, 1965, almost two years before the decision in Washington v. Texas, supra. It would be unreasonable to expect the petitioner to anticipate the future decision of the United States Supreme Court. See Ex parte Taylor, 484 S.W.2d 748 (Tex.Cr.App.1972); Boulware v. State, 542 S.W.2d 677 (Tex.Cr.App., delivered October 6, 1976). Therefore, we hold that there was no intentional waiver by not calling Columbus to the stand at trial since the “failure to object upon a ground not yet established as a defect of constitutional magnitude did not constitute a waiver.” Ex parte Casarez, 508 S.W.2d 620 (Tex.Cr.App.1974); Boulware v. State, supra.

Although petitioner’s out-of-time appeal was decided after the decision in Washington, his trial was held prior to that decision. The record, as it stood then, would not have been sufficient to show that the petitioner was harmed by not allowing him to present the testimony of a co-indictee, Columbus.

For the reasons stated, the relief prayed for is granted. The judgment of conviction is set aside and the petitioner ordered remanded to the custody of the Sheriff of Lubbock County to answer the indictment in the cause.

Opinion approved by the Court.

      . Columbus was granted relief in his petition for habeas corpus, on the same grounds as urged here, in Ex parte Columbus, 489 S.W.2d 562 (Tex.Cr.App.1973).

      . Ex parte Zerschausky, 417 S.W.2d 279 (Tex.Cr.App.1967); Zerschausky v. Beto, 274 F.Supp. 231 (W.D.Tex.1967); Zerschausky v. Beto, 396 F.2d 356 (5th Cir. 1968), cert. den. 393 U.S. 1004, 89 S.Ct. 493, 21 L.Ed.2d 468 (1968).


author: GUPTON, Judge.

text:
    Nathaniel MADEN, Appellant, v. The STATE of Texas, Appellee.
    No. 52976.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Brown & Brown, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., Mary Anne Wiley, Asst. Dist. Atty., Lubbock, Jim D. Yollers, State’s Atty. and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

GUPTON, Judge.

This is an appeal from an order revoking probation.

On August 21, 1973, appellant pled guilty to passing a forged instrument and punishment was assessed by the court at three years. Imposition of sentence was suspended and appellant was placed on probation.

The State filed a motion to revoke probation on September 4, 1975, alleging appellant had committed the offense of robbery on August 20, 1975, in violation of probationary condition “a”. After a hearing on the motion to revoke, the court found appellant had so violated the conditions of his probation, revoked probation, and sentenced appellant to not less than two nor more than three years confinement.

Appellant contends the evidence is insufficient to show he committed the alleged robbery. Witness Henderson, an employee of a hat store in Lubbock, testified on August 20, 1975, two black men entered the store and inquired about the repair and cleaning of a straw hat worn by the taller of the two men. One of the men then grabbed her around the neck, choked her and took,her to the back of the store. He told her to be quiet or he would blow her head off. During this time the other man took $45.85 from the cash register. Witness Henderson was asked if she saw either of the men that robbed her in the courtroom. She replied, “I couldn’t positively say yes.” She described the two men as being black males in their late twenties. One was 5' 10" or 5' 11" and the other was about 5' 8". They were both of medium build. Witness Henderson identified State’s exhibit three as being the straw hat worn by one of the two men that day.

Officer Chappell of the Lubbock Police Department testified he investigated a robbery report on August 20, 1975. Mrs. Henderson gave him a description of the two men that had committed the offense. She said they were both black males about 25 years old, of slender build and one was a little over six feet tall, the other about five feet eleven.

Detective Clanton of the Lubbock Police Department testified he went to an apartment on East 28th Street on August 22, and asked appellant to appear in a lineup. He stated appellant was very cooperative. Clanton described how the lineup was conducted and gave the names of the other persons appearing in the lineup. Clanton stated witness Henderson picked out appellant as looking like one of the men involved in the robbery. He stated she felt appellant was the man, but she could not swear to it. An employee and customer of the store adjacent to the scene of the offense also viewed this lineup. The employee could not identify anyone in the lineup as being one of the persons he saw leaving the hat store at the time of the offense. The customer thought appellant could have been one of the men, but he could not swear to it. Clanton further testified that witness Henderson had participated in two previous lineups in which appellant did not appear. In the first lineup she picked out one person as being one of the men involved in the robbery, and in the second lineup she picked out two people as possibly being involved.

Clanton further testified that he and appellant returned to the apartment. Appellant signed a consent to search form and opened the door to the apartment. Clanton identified State’s exhibit three as the straw hat he found in a chair in the living room of the apartment. The testimony concerning the search of appellant’s apartment was corroborated by Detective Daniels of the Lubbock Police Department. Daniels also stated that appellant said the straw hat belonged to his brother.

Appellant testified that he was at home at the time of the alleged robbery. He denied participating in the robbery. He stated he lived in the apartment with his brother, his brother’s wife, Clifford West and Richard Johnson, and the apartment was rented in his brother’s name. He also stated he voluntarily agreed to appear in the lineup and to let the officers search the apartment. He stated the straw hat belonged to Clifford West and appellant claimed he had never worn it or any other hat. During cross examination appellant put the hat on. The record shows the following:

“Q (By the prosecutor) Would you put this on please?
A (Defendant trying on hat.) It won’t even fit my head.
Q Okay. If your hair is pulled out it will fit, right?
A No, ma’am, if my hair was pulled out, I doubt if it would fit, it sure wouldn’t fit then.
Q When you pack it down, it makes it harder to fit on, right?
A I don’t know. Like I say, I ain’t never wore a hat.”

On redirect, the appellant again tried on the hat and the following occurred:

“[DEFENSE COUNSEL]: All right, May the record reflect that the witness has tried the hat down around his head and that the hat rests high up on the top of his hair and doesn’t fit down around his head and apparently doesn’t fit him. If the State desires to suggest a contrary description of what that looks like, I’ll be willing to agree to it.
“[PROSECUTOR]: I do believe that his testimony has covered this point sir, that he is not in the same condition that he was on August the 20th. I believe, if we’re going to put the descriptions into the record that should be made clear also.”

Although appellant failed to object to Detective Clanton’s testimony concerning Henderson’s and the customer’s identification of appellant at the pretrial lineup, it is clear that this testimony was hearsay and inadmissible. See Williams v. State, Tex.Cr.App., 531 S.W.2d 606 (Opinion on Appellant’s Motion for Rehearing); Weaver v. State, 68 Tex.Cr.R. 214, 150 S.W. 785; Haughton v. State, 99 Tex.Cr.R. 42, 267 S.W.2d 715; Jamail v. State, 99 Tex.Cr.R. 127, 268 S.W. 473. The customer did not testify during the hearing and witness Henderson did not state she had made a prior identification of either of the two men that had robbed her. See and compare Hills v. State, Tex.Cr.App., 524 S.W.2d 692.

As this Court said in Lumpkin v. State, Tex.Cr.App., 524 S.W.2d 302, 305:

“Hearsay is without probative value, even if admitted without objection. Mendoza v. State, Tex.Cr.App., 522 S.W.2d 898 (1975); Reynolds v. State, Tex.Cr.App., 489 S.W.2d 866. It constitutes no evidence, and will not be considered in determining the sufficiency of the evidence. Payne v. State, Tex.Cr.App., 480 S.W.2d 732; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772; O’Beirne v. State, Tex.Cr.App., 365 S.W.2d 787.”

Hearsay has been held admissible on the issue of a fugitive’s identity in extradition proceedings. See Ex parte Martinez, Tex.Cr.App., 530 S.W.2d 578. However, it does not appear hearsay is admissible in a probation revocation hearing. In Johnson v. State, Tex.Cr.App., 498 S.W.2d 198, 200, this Court said:

“The alleged hearsay testimony is not necessary to support the trial court’s finding and it will be presumed that the trial court, as the finder of the facts, disregarded inadmissible evidence. Reed v. State, 477 S.W.2d 904 (Tex.Cr.App.1972); Branch v. State, 465 S.W.2d 160 (Tex.Cr.App.1971); Rodgers v. State, 448 S.W.2d 465 (Tex.Cr.App.1969); Bowers v. State, 414 S.W.2d 929 (Tex.Cr.App.1967).”

See also Peach v. State, Tex.Cr.App., 498 S.W.2d 192.

In determining the sufficiency of the evidence to support the revocation order, we will presume the trial court disregarded the testimony of Detective Clanton as to identification of appellant at the pretrial lineup.

The remaining evidence does not show, even by a preponderance, that appellant committed the alleged robbery. There is no accomplice witness testimony. See Howery v. State, 528 S.W.2d 230. Witness Henderson did not make even a tentative identification of appellant during the revocation hearing. See Dixon v. State, Tex.Cr.App., 541 S.W.2d 437 (1976); cf. Valenciano v. State, 511 S.W.2d 297.

There is no testimony - concerning the clothing worn by the robbers and there is nothing to show either of the two men had any unique or identifying characteristics. Further, there is no description of appellant, thus there is nothing in the record to show appellant fit either the description given by Henderson during the hearing or the description she gave Officer Chappell at the time of the offense.

The only incriminating evidence is the straw hat found in the appellant’s apartment and appellant’s inconsistent statements concerning the ownership of the hat. The record shows the hat was worn by one of the robbers; however, the record also shows the straw hat did not fit appellant. Further, the hat was found in the living room of the apartment appellant shared with three other men. See Guitierrez v. State, 533 S.W.2d 14.

We note that appellant cooperated voluntarily by appearing in the lineup and consenting to a search of his apartment. Appellant’s statements concerning ownership of the hat, although conflicting, do not show by a preponderance of the evidence appellant’s complicity in the alleged robbery. See and compare Pope v. State, 505 S.W.2d 556. The trial court abused its discretion in revoking appellant’s probation.

The judgment is reversed and the cause remanded.

      . Probationary condition (a) reads “Commit no offense against the laws of this or any other State or the United States.”


author: ODOM, Judge. ROBERTS, Judge

text:
    Ex parte Thomas Cullen DAVIS.
    No. 53230.
    Court of Criminal Appeals of Texas.
    Oct. 20, 1976.

      Phil Burleson, Michael P. Gibson and Archibald C. McColl, Dallas, William R. Magnussen, Port Worth, for appellant.
    Tim C. Curry, Dist. Atty., Joe Shannon, Jr., Tolly Wilson, James G. Bennett, Howard Borg, Paul Gartner and Marvin Collins, Asst. Dist. Attys., Fort Worth, Jim D. Vol-lers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a habeas corpus proceeding instituted to secure bail for appellant in two capital murder cases.

Appellant was indicted for the capital murders of Stanford Farr (trial court cause 8028) arid Andrea Wilborn (trial court cause 8029). The indictments allege murder in the course of burglary and attempted burglary. V.T.C.A., Penal Code Sec. 19.-03(a)(2). He challenges the denial of bail in Cause 8029 and the amount, as excessive, in Cause 8028.

We shall first consider the denial of bail in Cause 8029. We will avoid a complete discussion of the facts since the case has not been tried on the merits.

Appellant’s first ground of error attacks the capital murder charges by asserting that the burglary upon which they were based was not and could not have been committed by him. Several arguments are presented separately to support this ground. These arguments may be characterized as (1)a challenge to the ownership of the burglarized premises, alleged to be in Priscilla Davis, the wife of appellant; (2) an assertion that consent to enter was given by Ken Davis, brother of appellant, or Andrea Wilborn, deceased; (3) an attack on the statutory definition of owner; (4) an assertion that this prosecution is a “wanton and freakish” application of the law; (5) a claim of defects in the indictment for disjunctive pleading of ownership and failure to negative implied exceptions; and (6) invocation of the felony merger doctrine as a bar to this prosecution for capital murder.

The relevant evidence on these issues, briefly summarized, is as follows. The State presented evidence that on the night of August 2-3, 1976, appellant entered a residence in Fort Worth where he shot and killed Andrea Wilborn and Stanford Farr, and shot and wounded Priscilla Davis, wife of appellant and mother of Andrea, and also shot Gus Garvel. Title to the property and residence where these events occurred was shown to be held by appellant, his brother Ken Davis, and a trust. Approximately two years before these events, by a temporary order still in force on August 2-3, 1976, in a divorce suit still pending at the hearing on bail, Priscilla Davis was given exclusive possession of the residence and appellant was ordered to stay away from the premises.

The statutory definitions of burglary and owner are needed to consider appellant’s contentions. V.T.C.A. Penal Code Sec. 30.-02(a) provides:

“A person commits an offense if, without the effective consent of the owner, he:
(1) enters a habitation, or building (or any portion of a building) not then open to the public, with intent to commit a felony or theft; or
(2) remains concealed, with intent to commit a felony or theft, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony or theft.”

V.T.C.A. Penal Code Sec. 1.07(a)(24) provides:

“ ‘Owner’ means a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor.”

Appellant insists that burglary was not committed because he had the consent of one of the co-owners, Ken Davis, to enter the house. Ownership, as we have held in the past, does not merely involve the title interest to property. Gilbreath v. State, 158 Tex.Cr.R. 616, 259 S.W.2d 223; Black v. State, Tex.Cr.App., 505 S.W.2d 821. The Legislature, through its definition of “owner” in the Penal Code, has adhered to this principle.

Although appellant and his brother had title interest in the property, the fact that Priscilla Davis had exclusive right of possession, at least as against appellant, defeats appellant’s claim to an ownership capacity to grant consent to enter. Furthermore, the fact that Ken Davis was not a party to the civil proceeding wherein Priscilla Davis was granted exclusive possession of the residence does not empower him to give appellant effective consent to enter the premises declared off limits for appellant by the civil court’s order. If it did, the power and authority of the civil court which imposed the equitable order could be circumvented extrajudicially. We do not think any court would permit an injunction to be invalidated in this injudicious manner.

The injunction gave Mrs. Davis not only a “greater right to possession,” it gave her exclusive possession of the residence. All rights to enter the house held by appellant were negated by the order of the court.

Appellant also contends that circumstantial evidence shows that Andrea Wil-born allowed him to enter the house. The circumstantial evidence consists of the fact that there were no signs of a forcible entry at the residence. Even if she voluntarily admitted appellant, there is nothing in the record to suggest that such act by the twelve year-old girl was effective consent (see V.T.C.A. Penal Code Sec. 1.07(a)(12)) to enter, or that appellant was operating under some mistake of fact (see V.T.C.A. Penal Code Sec. 8.02) regarding this matter.

Appellant also challenges the constitutionality of the definition of “owner” in Sec. 1.07(a)(24), supra. The decision in Sheppard v. Giebel, Tex.Civ.App., 110 S.W.2d 166, as cited as authority for this contention.

Suit was brought in that case to enjoin the collection of taxes on electric phonographs operated by the use of coins and to enjoin criminal prosecutions for failure to pay such taxes. The statute defining “owner” for purposes of taxation and penalties was held unconstitutional because it defined owner in a highly indefinite manner.

The issue regarding the definition of “owner” in the ease at bar is significantly different from that in the Sheppard decision. There, whether one was an owner or not determined tax liability and possible criminal liability. Here, the issue of ownership goes to the scope of interests protected by the law, not the imposition of liability. The disjunctive definition to establish tax liability is vague. The disjunctive definition of interests protected is not vague. That is in the nature and structure of the English language.

We do not find the definition of “owner”' provided by the Penal Code to be unconstitutionally vague. The Legislature recognized the concept that there are many types of possessory interest in property besides ownership in title. Such a concept has followed the development of Anglo-American civil and criminal jurisprudence.

The definition provided by the Penal Code is designed to protect all ownership interests in property from criminal behavior. In the instant case, Mrs. Davis had a greater right to possession of property than the appellant. “Owner” was defined by the Legislature to protect those persons who have a greater right to possession of the property than the criminal actor. We conclude that the definition is sufficiently precise to withstand constitutional challenge.

Davis argues that the charge of capital murder under the facts of this case represents an unconstitutional “wanton and freakish” application of the capital murder statute. See, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 346. The infrequency of the commission of an offense does not prevent its prosecution. The “wanton and freakish” commission of an offense does not render its punishment “wanton and freakish.”

We conclude, on the basis of the record before us, that the charge against appellant is not an arbitrary application of the capital murder statute. Section 19.03(a)(2), supra, provides that a person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit burglary. This statutory scheme has been upheld by the United States Supreme Court. Jurek v. Texas, - U.S. -, 96 S.Ct. 2950, 49 L.Ed.2d 929.

Next, appellant states that the indictment is fatally defective because it charges the crime in the disjunctive and because it fails to negate an implied exception.

The pertinent part of the indictment reads:

“. . . and the said defendant did then and there intentionally cause the death of the said Andrea Wilborn in the course of committing and attempting to commit the offense of burglary, to wit: the said defendant, without the effective consent of Priscilla Davis, the owner of a habitation, did then and there enter said habitation with the intent to murder Priscilla Davis. . . .”

Davis contends that because the indictment failed to allege a particular definition of “owner,” one must substitute the statutory definition of “owner” for the single word “owner” in the indictment. The substitution, according to appellant, renders the indictment disjunctive because the definition of “owner” in Sec. 1.07(a)(24), supra, is written in the disjunctive.

Although it may be a better practice for the State to allege the type of “owner” on which it relies, we conclude that the indictment is sufficient to allege an offense against the laws of Texas. Furthermore, the briefs and record clearly demonstrate that appellant is fully aware of the theory of ownership upon which the State will rely.

Appellant’s contention that the State has failed to negate an implied exception is also without merit. V.T.C.A. Penal Code Sec. 2.02 provides that the charging instrument must negate the existence of exceptions so labeled in the Code. There is no need to negate implied exceptions.

The final argument advanced in support of appellant’s first ground of error states that the indictment and the proof will not support a capital murder conviction because of the felony merger doctrine. Appellant recites this version of the doctrine:

“[W]here there are two felonies committed but one of those felonies is dependent on the intent necessary for the second felony, there is in reality one intent, and the crimes merge.”

We need not discuss the soundness of this statement of the doctrine, nor its status in this jurisdiction (cf. Hilliard v. State, Tex.Cr.App., 513 S.W.2d 28, 31), because the rule as stated is inapplicable to the facts in this case.

It is here alleged that appellant murdered Andrea Wilborn while committing or attempting to commit burglary. The burglary was allegedly committed with intent to murder Priscilla Davis. The intent to kill Priscilla Davis and the intent to kill Andrea Wilborn are not dependent on one another. These are two separate and distinct states of mind.

Appellant’s first ground of error is in all things overruled.

Appellant next argues that the State failed to establish by proof evident that a jury would affirmatively find that there is a probability he would commit criminal acts of violence constituting a continuing threat to society. Art. 37.071, V.A.C.C.P. In Ex parte Wilson, Tex.Cr.App., 527 S.W.2d 310, 311, we stated:

“The Constitution of the State of Texas, Art. 1, Sec. 11, and the Code of Criminal Procedure, Art. 1.07, both provide that all prisoners are entitled to bail except those charged with a capital offense ‘when the proof is evident.’
“The term ‘proof is evident’ means that the evidence is clear and strong, leading a well guarded and dispassionate judgment to the conclusion that the offense of capital murder has been committed; that the accused is the guilty party; and that the accused will not only be convicted but that the jury will return findings which will require a sentence of death.” (citations omitted.)

The State has the burden of establishing that the proof is evident. Ex parte Cevallos, Tex.Cr.App., 537 S.W.2d 744. The trial judge concluded that the proof was evident. We must, however, ascertain the evidence and determine whether bail was properly denied. Ex parte Wilson, supra; Ex parte Hickox, 90 Tex.Cr.R. 139, 233 S.W. 1100. In doing this, it is our policy to avoid an in-depth discussion of the facts and the sufficiency of the evidence where the case has yet to be tried on the merits. Ex parte Sierra, Tex.Cr.App., 514 S.W.2d 760.

' [14] In order for the death penalty to be assessed, the jury must conclude beyond a reasonable doubt that there is a probability that the accused will commit criminal acts of violence constituting a continuing threat to society. Art. 37.071, supra. We have carefully reviewed the complex record made at the hearing below. We conclude that the trial judge did not abuse his discretion in concluding that the proof was evident on this issue.

Davis also argues that the trial court’s order compelling him to submit to a psychological examination violated his privilege against self-incrimination guaranteed by Art. 1, Sec. 10 of the Texas Constitution and the Fifth and Fourteenth Amendments to the Constitution of the United States.

Dr. Holbrook, appellant’s expert witness, testified that Davis would not commit criminal acts of violence constituting a continuing threat to society. The State requested the trial judge to compel appellant to submit to a psychological analysis by Dr. Patterson. The trial court, over objection, granted this motion which resulted in the introduction of the testimony of Dr. Patterson in regard to appellant’s likelihood of committing future violent acts.

The State maintains that a habeas corpus proceeding instituted to secure bail is a civil proceeding, and therefore the trial court had authority to compel this examination under the Texas Rules of Civil Procedure. See, Tex.R.Civ.P. 167a. This is an erroneous assertion. In State v. Morris, Tex.Civ.App., 208 S.W.2d 701, 703, the court held:

“In order to determine whether a proceeding by habeas corpus to remove an unlawful restraint is to be regarded as a criminal or a civil case for jurisdictional purposes it is necessary to look to the cause of the restraint. If the restraint is by reason of a violation or a supposed violation of some criminal or quasi-criminal law, the proceeding will ordinarily be regarded as a criminal case; but if the restraint is not because of some supposed violation of criminal law, then the proceeding must be classed as a civil case.”

We have before us a criminal case. . The trial court was not authorized to compel a psychological examination of the appellant by the Rules of Civil Procedure.

However, the court did not violate the appellant’s privilege against self-incrimination. The trial judge had the responsibility of determining whether the proof was evident. This decision was necessary to the granting or denying of bail. After hearing appellant’s expert witness, the trial judge was not in error when he decided to elicit another opinion.

Furthermore, it must be kept in mind that the ultimate issue of guilt or innocence is not determined at the habeas hearing. The information elicited from Davis through the psychological examination conducted below was not used to incriminate him. Rather, it was used by the judge to make the bail determination. The trial judge can take precautionary steps to insure that the State does not use or introduce any information gained from this psychological examination in the guilt or punishment stage of the trial on the merits.

Without elaborating further on the facts, we also are of the opinion that appellant’s grounds of error attacking proof evident in the alleged murder of Andrea Wilborn and asserting that the death penalty would be cruel and unusual punishment are likewise without merit.

We hold that the trial court did not abuse its discretion in denying the appellant bail in Cause No. 8029. It therefore becomes unnecessary for us to determine whether the bail granted in Cause No. 8028 was excessive since appellant must remain incarcerated pending disposition of the capital murder charge in Cause No. 8029.

For the reasons stated, the decision of the trial judge is affirmed and the relief is denied.

ROBERTS, Judge

(concurring).

I agree that this is a criminal case. However, I cannot agree that the trial court had any authority to compel the appellant to submit to a psychological examination. The only purpose of this examination was to provide “evidence” to support a finding that the appellant should be held without bail.

We are not dealing with a trial and the determination of guilt or innocence; no issue of competency or insanity was raised or suggested, and therefore this psychological examination was not sanctioned by either Article 46.02 or Article 46.03 of our Code of Criminal Procedure.

Neither are we dealing with a hearing to determine punishment under Article 37.-071(a) of the Code of Criminal Procedure which allows such psychiatric testimony. See Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976).

Thus, the court erred in requiring the appellant to submit to a psychological examination, since there was absolutely no authority for such an examination. I would also hold that once the court had committed this error, it was error to allow the testimony of the doctor to be admitted into evidence.

However, I believe that the errors were harmless in the present case, since there was sufficient other evidence to support the court’s finding that the appellant be held without bail under the authority of Art. I, Sec. 11, Vernon’s Ann.Tex.Const. and Art. 1.07, Vernon’s Ann.C.C.P.

      . Appellant bases his right to enter the residence on the consent given to him by Ken Davis. This consent was given at the time the house was constructed, years prior to the injunction and the alleged offense. This consent consisted of appellant obtaining permission from Ken Davis to build a house on the property and to reside in it upon its completion. Appellant states that this consent was never withdrawn. It was, however, rendered meaningless by the injunction enjoining appellant from coming near the property.


author: WARD, Justice.

text:
    Odell S. HOLMES, Jr., Appellant, v. CANLEN MANAGEMENT CORPORATION, d/b/a Canlen House Apartments, Appellee.
    No. 6544.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 18, 1976.

      Odell S. Holmes, Jr., El Paso, for appellant.
    Francis S. Ainsa, El Paso, for appellee.
   OPINION

WARD, Justice.

This is an appeal from the granting of summary judgment. The judgment was entered,in favor of the defendant-landlord where a tenant had filed suit under Article 5236e V.A.T.C.S. to recover an alleged security deposit made at the time of the lease, a statutory penalty, trebled damages and attorney's fees. We affirm.

The plaintiff, Odell Holmes, pleaded that he became a tenant of the defendant under the terms of a written lease which was attached and made a part of his petition; that he later vacated the premises after giving the required notice as provided by the lease; that after having given proper written demand for the return of his security deposit in the amount of $40.00, it had neither been returned nor properly accounted for. Under the terms of the statute, he then prayed judgment against the landlord for the $40.00 deposit, penalty of $100.00, plus treble the amount of the deposit wrongfully withheld, or a total of $260.00 plus reasonable attorney’s fees.

The written lease was on a month to month basis at $165.00 per month. The lease provided that in addition to said rent the tenant agreed to pay “a non-refundable painting and cleaning fee in the sum of $40.00.” The defendant filed its answer which included a special exception to the petition because the lease did not disclose that any security deposit was required of the plaintiff in any manner at all; that the provision regarding the non-refundable painting and cleaning fee did not refer to a security deposit; and that the pleading did not disclose any basis for the plaintiff’s cause of action. No action was taken on the special exception.

The defendant then filed its motion for summary judgment on the specific grounds that (a) the claimed refund of $40.00 was identified under the lease agreement as “a non-refundable painting and cleaning fee in the sum of $40.00,” (b) plaintiff had pleaded a claim to a refund of said sum as a “security deposit” without in any manner showing how said non-refundable fee constituted a “security deposit,” and (c) that the pleadings and the interrogatories on file plainly disclosed as a matter of law that the $40.00 claimed by the plaintiff was paid by him as additional consideration for the lease. Plaintiff’s opposing affidavit admitted that he paid the $40.00 under the lease as “a non-refundable painting and cleaning fee”, but that, even despite its designation, it had as its primary function the securing of full or partial performance of the rental agreement for the rental premises leased by plaintiff.

The plaintiff’s two points on appeal are that the trial Court erred in granting the motion since there was a question of fact presented that the fee was a security deposit, and that as a matter of law the non-refundable painting and cleaning fee was a security deposit as defined by law.

The pertinent provisions of Article 5236e are as follows:

“Definitions
“Section 1. * * *
“(1) ‘Security deposit’ means any advance or deposit of money, regardless of denomination, the primary function of which is to secure full or partial performance of a rental agreement for a (sic) residential premises. ‘Security deposit’ does not include advance rentals.”
“(6) ‘Normal wear and tear’ means that deterioration which occurs, based upon the use for which the rental unit is intended, without negligence, carelessness, accident, or abuse of the premises or equipment or chattels by the tenant or members of his household, or his invitees or guests.”

The statute provides that the security deposits must be refunded by the landlord to the tenant within 30 days after the tenant surrenders the premises; that the landlord must keep accurate records of all security deposits; and in the event of any deductions, they must be itemized fully. Section 3(a) provides that no security deposit may be retained to cover normal wear and tear as defined in Paragraph (6), Section 1, of the Act.

Defendant’s motion for summary judgment was directed solely to the sufficiency of the plaintiff’s pleadings to state a cause of action. Though the defendant refers to its own answers to interrogatories propounded by the plaintiff, they add nothing to the defendant’s attack against the plaintiff’s pleadings. Even if they were of value, they cannot be considered in support of the defendant’s own motion for summary judgment as such answers can be used only against the party answering the interrogatories. Tex.R.Civ.P. 168, Jeffrey v. Larry Plotnick Co., 532 S.W.2d 99 (Tex.Civ.App., Dallas 1975, no writ).

Likewise, the plaintiff’s position, as developed from his brief, is that his pleadings are adequate and state a cause of action.' His first point is that a factual issue was presented in that there was an ambiguity in the lease as the language “painting and cleaning fee” was merely another way of saying “security deposit.” He argues that since security deposit as defined in the statute meant any advance or deposit, regardless of denomination, a jury could determine that it covered this money which would be used only to paint and clean the premises once vacated, and was, therefore, merely securing full or partial performance of the rental agreement. The second point is that as a matter of law the non-refundable painting and cleaning fee should be held as being within the statutory definition of a security deposit.

Undoubtedly, the Legislation in question was designed to curb abuses in regard to the retention of security deposits after termination of a lease. Crafty landlords have overreached their tenants by holding their money during the lease and then claiming a failure of performance to defeat their legal obligation to return the money in an area where the burden of bringing suit, burden of proof and small profit effectively discouraged any adequate recourse.

On the other hand, the statute does not attempt to control the rent for the lease. It specifically excludes from its reach all advance rentals, and is only concerned with a deposit which purportedly must be returned to the tenant upon his compliance with the terms of the lease. It is settled that a landlord can agree with his tenant for any amount of compensation for the use of the property. There is no requirement that prohibits the landlord from stating in the agreement the use to which he intends to put this consideration received by him from the tenant. It is said that monies paid on the execution of a lease fall into four classes: (1) an advance payment of rent, (2) a bonus or consideration for the execution of the lease, (3) liquidated damages, and (4) a deposit to secure faithful performance of the terms of the lease. 52 C.J.S. Landlord & Tenant § 472 p. 359.

In ruling upon this motion directed to the pleadings, the Court takes as true every allegation of the pleadings against which the motion is directed. If the pleadings, when liberally construed, allege material facts sufficient to entitle the pleader to the judgment sought, the motion for summary judgment should be denied. 4 McDonald Texas Civil Practice, Section 17.26.8. From the above, it seems clear that no facts are alleged which would support the liability of the landlord. The words “non-refundable” are plain in meaning. The money was either an advance payment of rent or a consideration for the execution of the lease. The words were not ambiguous, and no contention is made that the Appellant did not understand their meaning. No contention is made in the pleadings, nor in the brief, that the Appellant was in any way misled, or that equitable grounds might exist by which the contract could be reformed. The statute was not meant to cover the clear language contained in this lease, and the Appellant’s points are overruled.

We point out that no complaint is made by the Appellant that he should have been afforded an opportunity to amend his pleadings to state a cause of action upon some other theory. The judgment of the trial Court is affirmed.


text:
    Jo Ann WATLEY, Appellant, v. J. W. WATLEY, Appellee.
    No. 6536.
    Court of Civil Appeals of Texas, El Paso.
    Aug. 25, 1976.
    William B. Smith, Midland, for appellant.
    Legg, Saxe & Baskin, Reagan H. Legg, Midland, for appellee.
   OPINION

WARD, Justice.

This is an appeal from an order denying a motion to increase child support payments, brought in accord with Sec. 14.08, Texas Family Code. The Appellant is the mother, and she alleged that there had been a substantial and material change in the circumstances of the child and asked that the support payments being made by the father be increased from $100.00 to $200.00 per month. We affirm.

The parties were divorced by decree entered January 15th, 1971, in the Court of Domestic Relations of Midland County, and the custody and control of two minor daughters were awarded to the mother, Jo Ann Watley, and J. W. Watley, the Appel-lee, was ordered to pay to Jo Ann Watley the sum of $100.00 per month per child for those two children. In the same decree, the boy of the parties was awarded to the care and custody of Appellee, J. W. Watley. When the motion to modify was filed in 1975, only one child remained under the age of 18 years, this being one of the girls, and the Appellant sought to have the amount of child support for the one child raised to $200.00 per month. After a non-jury hearing of the evidence, the Court of Domestic Relations of Midland County found that circumstances had not materially and substantially changed since the entry of the original order and denied the motion to modify in all things. Additional findings of fact were neither requested nor filed.

Appellant’s one point is that the Court abused its discretion in failing to increase the amount of child support. While the point is broad, the Appellant’s brief makes a full and complete attack upon all eviden-tiary matters considered by the trial Court. Appellate review of the record will be under the rule as stated by McDonald: “When specific findings of fact and conclusions of law are filed, or are stated in the judgment and no additional findings are requested, and a statement of facts is also brought forward, the findings will be sustained if there is any evidence to support them.” 4 McDonald, Texas Civil Practice 16.10(b) 29 (1971). Mathews v. Warren, 522 S.W.2d 569 (Tex.Civ.App.—Austin 1975, writ ref’d n. r. e.), elaborated on the rule as follows:

“If there is any evidence of a probative nature to support the findings of the trial court, the judgment based on the findings must be affirmed. Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 977 (1951). The trial court had the right to consider all facts and circumstances in evidence and to indulge in reasonable inferences to be drawn therefrom in reaching the court’s ultimate finding. In examining the record to determine whether there is any evidence of probative value to support the trial court’s finding, an appellate court must view the evidence in the light most favorable to appellee and reject all evidence favorable to appellant against whom the judgment was rendered. Woodward v. Ortiz, 150 Tex. 75, 237 S.W.2d 286, 289 (1951).”

With those rules before us, we find that Watley is a self-employed furniture repairman and not in the best of financial circumstances. His income tax returns were introduced into evidence and show his income for 1971 at $3,972.00, for 1972 at $2,483.00, for 1973 at $3,226.00 and 1974 at $6,053.00. He testified that he frequently has to borrow money to make ends meet; that his expenses are increasing; and that he expects to have back surgery performed. He also showed that his present wife contributes more to the support of his present family than he is able, and that he cannot make the increased payments. Of further importance is the fact that Judge Mims has had before him all of the facts of the controversy from the time that the original divorce suit was filed.

The trial judge did not abuse his discretion in refusing to increase the child support payments. The judgment of the trial Court is affirmed.


author: OSBORN, Justice.

text:
    GIHLS PROPERTIES, INC. and Gihls Realty and Management Corp., Appellants, v. MAIN LAFRENTZ & CO., Appellee.
    No. 6542.
    Court of Civil Appeals of Texas, El Paso.
    Sept. 15, 1976.

      Rassman, Gunter & Boldrick, Emil C. Rassman, James P. Boldrick, Midland, for appellants.
    Bullock, Scott & Neisig, Tom R. Scott, Midland, for appellee.
   OPINION

OSBORN, Justice.

This case involves the obligation of a landlord to furnish a tenant heating and air conditioning at what might be considered other than normal business hours. The trial Court issued a temporary injunction requiring that such services be furnished at certain specified hours during the week and on weekends. Having concluded that there is no showing of an irreparable injury, the injunction is dissolved.

In October, 1968, Appellee entered into a ten-year lease agreement for the fifth floor of the Wilkinson-Foster Building in Midland. Although the lease does not specifically state that heating and air conditioning shall be provided, it does state:

“Lessor agrees and covenants that it will, during the term of this lease, at its expense, keep the building and premises and the heating and air-conditioning units therein in good and substantial repair and in tenantable condition *

Obviously, for the lessor to keep the building and premises in a tenantable condition, heating and air conditioning would be necessary. Appellee has approximately thirty employees in its Midland accounting office who do mostly tax and audit work. During the “tax season” from January to April 15, these employees work from 7:30 a. m. to 7:00 p. m. five days a week, and from 8:00 a. m. to 6:00 p. m. on Saturdays and Sundays. From the time the offices were occupied in 1969 until 1974, the landlord always provided adequate heat and air conditioning during regular working hours and also on evenings and weekends. The building was purchased by Appellants in June, 1972, and they assumed the lease obligation of the seller and service continued as in the past. After the energy crisis in 1974, Appellant became concerned over rising costs in maintaining and operating the building occupied by Appellee. Although the air conditioning may have been shut off on a couple of weekends in 1974, when a request for service was made it was provided without any problem.

When such service was not provided in March, 1975, a partner in the accounting firm wrote to the president of the realty company requesting adequate heating and cooling as required on Saturdays and Sundays. In reply, he was advised that such service would be provided until noon on Saturdays, and any service on Saturday afternoons or Sundays would be provided at a cost of $10.34 per hour to the accounting firm. This having occurred in the middle of the tax season, the Appellee agreed to pay such cost at that time, but stated it did not accept such construction of the lease and desired to settle the issue after the tax season was over. The sum of $962.00 was paid in 1975 for such service on weekends. In January, 1976, Appellee filed this suit for a declaratory judgment as to the rights of the parties under the lease agreement and for injunctive relief, and obtained the tern-porary injunction which resulted in this appeal.

We sustain the Appellants’ second point of error in which it is contended that Appel-lee failed to sustain its burden of proving the necessary elements entitling it to a temporary injunction. The general rule as to such relief is stated in Thomason v. City of Midland, 304 S.W.2d 288 (Tex.Civ.App.—El Paso 1957, no writ), as follows:

“It has long been established that he who seeks an injunction has the burden to establish facts entitling him to such injunctive relief. Jones v. Smith, Tex.Civ.App., 248 S.W.2d 1022; General Telephone Co. of the Southwest v. City of Eden, Tex.Civ.App., 281 S.W.2d 379, at page 384; Lamb v. Kinslow, Tex.Civ.App., 256 S.W.2d 903; King v. Miller, Tex.Civ.App., 280 S.W.2d 331. In this case, the burden was on the plaintiff to show that he did not have an adequate legal remedy; that he would suffer irreparable injury * * *.”

An “irreparable injury” is stated to be “an injury of such nature that the injured party cannot be adequately compensated therefor in damages, or that the damages which result therefrom cannot be measured by any certain pecuniary standard.” Lowe, Texas Practice, Vol. 6, Sec. 114. In this case, the Appellant never refused to provide the requested service of heating and cooling the building. If it had refused service, there would have been no adequate remedy at law, and an injunction would have been proper. But, instead it required payment of $10.34 per hour for such service. Appellant by its reply to the request for service established a definite measure of damages based upon the amount of service requested. We believe Appellee could have requested the service at such hours as was needed, paid under protest, and sued for recovery of the sums it was required to pay. A recovery of such payment would be an adequate remedy. There is no contention that Appellees are insolvent or unable to pay any judgment rendered against them. Certainly any recovery could be set off against current rent for the leased premises. Thus, an adequate remedy at law did in fact exist, and the extraordinary remedy of an injunction should not have been granted. Grayson Enterprises, Inc. v. Texas Key Broadcasters, Inc., 388 S.W.2d 204 (Tex.Civ.App.—Eastland 1965, no writ).

The Appellee relies primarily upon Meadow Corporation v. South Central Bell Telephone Company, 499 S.W.2d 280 (Ky.Ct.App.1973); Columbus Spa, Inc. v. Star Co., 216 App.Div. 218, 214 N.Y.S. 653 (Sup.Ct.1926); and Halperin v. McCrory Stores Corporation, 207 App.Div. 448, 202 N.Y.S. 385 (Sup.Ct.1923). While those cases may very well be controlling upon the merits of this case, they are not applicable on the issue of injunctive relief. There is no indication in those cases that the landlord would have provided the heating or air conditioning service beyond normal hours had the tenant agreed to pay for such service while the lease was being interpreted in a declaratory judgment action. In fact, the opinion in the Halperin case indicates that service had in fact been cut off by the landlord when the injunctive relief was sought in that case. In the Meadow case, the landlord advised the appellee that no heating or air conditioning would be provided beyond a given date, thus necessitating the granting of injunctive relief. Those cases are distinguishable from this case where the landlord agreed, and was willing, and in fact did provide heating and air conditioning service beyond normal hours but demanded payment for such service.

The order of the trial Court is reversed, and the temporary injunction is dissolved.


author: DUNAGAN, Chief Justice.

text:
    Ross McELREATH, Appellant, v. Jean McELREATH, Appellee.
    No. 938.
    Court of Civil Appeals of Texas, Tyler.
    Sept. 16, 1976.
    Bert L. Clardy, Law Office of Hugh E. McGee, Jr., Houston, for appellant.
    William Emerson Wright, Houston, for appellee.
   DUNAGAN, Chief Justice.

Appellee, Jean McElreath, brought this suit in the 127th District Court of Harris County, Texas, for the recovery of principal, interest and attorneys’ fees on two (2) promissory notes. The larger of the two notes, which was in the original principal amount of $25,200, contained an optional acceleration clause and is the note involved in this appeal. Trial was to the court and resulted in judgment in favor of appellee. No appeal was taken from the judgment on the smaller note. Therefore, this appeal involves only the larger note.

Pursuant to appellant’s request, the trial court prepared and filed its findings of fact and conclusions of law.

Appellant by his first two points of error contends that the trial court erred in granting appellee judgment after appellee rested her case because (1) there is no evidence or (2) in the alternative insufficient evidence that the appellee made formal demand on appellant for the payment of the past due installments on the $25,200 note before accelerating the maturity of the unpaid principal balance.

By his third point appellant contends that the court erred “in entering Judgment for Appellee for the balance of principal plus interest and attorney’s fees” on the note in question “because under the facts and circumstances of the case, it would be unjust and inequitable to permit Appellee to accelerate the maturity of such note.”

“ * * * In determining whether the trial court’s findings are supported by any evidence of probative value, we will give credence only to the evidence favorable to the findings and will disregard all evidence to the contrary. The findings of fact and the conclusions of law will be construed together; and if the findings of fact are susceptible of different constructions, they will be construed, if possible, to be in harmony with the judgment and to support it.” Brown v. Frontier Theatres, Inc., 369 S.W.2d 299, 301 (Tex.1963).

The note in question was executed by Ross McElreath, the appellant, on February 7, 1967, in favor of Jean McElreath as a part of the community property settlement between the parties in connection with divorce proceedings heard on that date. The note was non-interest bearing prior to maturity and provided for principal to be paid in installments of $150 per month until paid in full. According to the testimony of the appellee, payments on this note were made regularly, if not always timely, from February, 1967 until August, 1972. Appellee claims she did not receive the installment payments on the note here involved due for August and September, 1972; that appellant made the installment payment due October 5, 1972, but thereafter made no payments whatsoever on the note in controversy-

On January 24, 1973, appellee, upon election to accelerate maturity by virtue of appellant’s failure to make installment payments under the provisions of the note, filed suit for breach by default seeking recovery of the principal unpaid balance on the larger note in the sum of $15,300, together with contractual attorneys’ fees and interest subsequent to default.

The factual controversy between the parties at the trial in the court below, as well as upon this appeal,' deals with the questions of whether appellant had, in fact, paid the delinquent installment payments in issue and whether he was afforded notice of an opportunity to pay through proper demand for payment from appellee.

The only testimony presented in the case was from the parties themselves. Mrs. McElreath, the appellee, testified that she did not receive the $150 installments due on the note for August 5 or September 5,1972; that on September 9, 1972, she called appellant and advised him that she had not received such installment payments; that appellant said “he couldn’t afford it”; that appellant told her that he had not mailed the checks. He said things were “tight right then.” Late in October, appellee received a $150 installment payment denominated as the October payment, which was due October 5th. She further testified that she did not receive a payment for the November installment; that in December or late November she again spoke with appellant by telephone and informed him that she had not received the note payments. Appellee testified that she told him she wished he would “catch up” and that in reply he said “he would see what he could do.” After Christmas, 1972, appellant had not “caught up.” She then sought legal counsel and made arrangements to meet appellant for purposes of presentment.

On January 19, 1973, she and appellant met at a location in Houston at which time she presented each of the original notes and told him she was accelerating the notes. In reply, appellant stated, “I didn’t know you could do that.” Appellee then said, “I think I can . . .” and referred appellant to the acceleration clause in the notes. There was testimony to the effect that appellant offered to discount the notes and that the appellee refused, demanding the full amount.

Thereafter, she authorized her attorney to send Mr. McElreath, the appellant, a formal notice of her election to accelerate maturity. This was done by letter dated January 22, 1973. Suit was thereafter filed on January 24, 1973.

The appellant, who is a certified public accountant, testified that he mailed checks for the August 5th installment on August 31st, the September 5th installment on October 2nd, the October 5th installment payment, together with the November 5th installment, on November 6th, and the December 5th installment on December 7th. He further testified that in each instance he enclosed a specific note installment check with a child support payment check in one envelope, which he personally addressed, stamped, and placed into the United States Mail.

Appellant also testified that prior to the meeting with appellee on January 19, 1973, he had never had a telephone conversation with his former wife concerning the fact that she had not received the August and September installments on which he allegedly defaulted in payment; that when the appellee presented the notice demanding payment on January 19, 1973, he was “bewildered”; that the appellee made no mention of overdue installments on the notes at the meeting but admitted he did ask whether or not she would take a “discount” if he paid the note in full; that none of the checks written to appellee for note installment payments here in question had been returned to him in the mail.

He further testified that on the evening of January 19, 1973, he asked his current wife, who kept the check registry on their personal account, about the status of the installment checks. She then advised him that there were four outstanding checks to his former wife, the appellee, which had never cleared their account. Thus, as of the evening of January 19, 1973, the appellant knew that the checks he had written and allegedly mailed to appellee for the $150 note installments for August, September, November, December of 1972 and January of 1973 were still outstanding and had not cleared his account.

He testified that on January 29, 1973, he was able to make good the delinquent installment payments on the note and was ready to pay them out of the outstanding checks; that he thereafter communicated this offer to appellant’s attorney.

The trial court found that appellant failed to make installment payments under the note in question for the months of August and September, that he did make the October 1972 installment, but “thereafter made no payment whatsoever . . . ” on the note in question “and was accordingly in default.” The trial court found as a fact and concluded as a matter of law that subsequent to appellant’s failure to pay the August and September installment payments that appellee “communicated express and unambiguous demands by telephone to Defendant (appellant) on two occasions requesting payment of the delinquent installment payments” and that such demands were still viable at the time of plaintiff’s exhibition and presentment of the note on January 19, 1973.

As to the adequacy of demand at the meeting of the parties on January 19, 1973, the Court found that appellant knew, or should have known, that he was being requested to pay in full the delinquent installments, that he knew or should have known that the installment payments due had not been paid, that he understood or should have understood that her demand meant that he must pay the delinquent installments owing, and that under all the circumstances and in regard to his knowledge of the delinquencies, the demand by appellee on January 19, 1973, was meaningful and “in substantial compliance with the legal requirements of a demand.”

More directly, the court found that in addition to the two prior telephone demands appellee’s display of both the notes and the demand for payment constituted in every manner a proper presentment and proper demand. Additionally, the court specifically found that appellee’s failure to expressly specify the delinquent installment payments and to request payment thereof by appellant at the January 19 meeting “was immaterial and did not affect the sufficiency of her demand for payment.”

The court further found that appellee gave proper and timely notice of her election to accelerate maturity of the indebtedness under the note; that appellant was afforded “a reasonable and sufficient time to make payment” after appellee’s demands “before exercising her right to elect to accelerate the maturity of the indebtedness owing under” the note.

Even though the appellant alleged in his amended answer and so testified upon the trial of this cause that he was “ready, willing and able” to pay the past-due payments owing, the trial court found that appellant, subsequent to demand, “did not make or tender the past-due payments owing to the plaintiff [appellee] on” the note. The trial court further found that “the credibility of plaintiff’s [appellee] testimony was superior to and more believable than the testimony of the defendant [appellant] in this cause.” The trial court found that because of appel-lee’s acceptance of the October 5, 1972 installment payment under the note she was not estopped to accelerate the maturity of the note.

The trial court made thirty-seven specific findings of fact and conclusions of law. To mention each of them would unnecessarily and unduly lengthen this opinion.

At the conclusion of the direct examination of Mrs. Jean McElreath, the only witness called by appellee to testify, appellant filed a motion for judgment which was overruled by the trial court. Upon oral argument appellant contended that this court could only consider the testimony up to the time of the filing of his motion for judgment. This contention is without merit. The appellant did not rely upon his motion but after it was overruled proceeded to introduce testimony. The right to challenge denial of the motion for judgment was waived by the subsequent introduction of evidence on the part of appellant-defendant. Vermillion Construction Co. v. Fidelity & Deposit Company of Maryland, 526 S.W.2d 744, 748 (Tex.Civ.App.-Corpus Christi 1975, no writ); Shoppers World v. Villarreal, 518 S.W.2d 913, 918 (Tex.Civ.App.-Corpus Christi 1975, writ ref’d n.r.e.); Edelstein v. Lehmann, 452 S.W.2d 49, 52 (Tex.Civ.App.-San Antonio 1970, writ ref’d n.r.e.); Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482, 484 (Tex.Civ.App.-Waco 1967, writ ref’d n.r.e.); St. Louis Southwestern Ry. Co. of Texas v. Douthit, 208 S.W. 201, 204 (Tex.Civ.App.-Dallas 1919, writ ref’d); Savage v. Mowery, 166 S.W. 905 (Tex.Civ.App.-San Antonio 1914, n.w.h.); El Paso & Southwestern Co. v. Hall, 156 S.W. 356, 358 (Tex.Civ.App.-San Antonio 1913, n.w.h.); 57 Tex.Jur.2d sec. 575, p. 334.

It was the province of the trier of the facts to pass upon the credibility of the witnesses and the weight to be given their testimony, and to resolve conflicts and inconsistencies in the testimony of any one witness, as well as the testimony of different witnesses. The trial court as the trier of the facts had a right, which was exercised, to reject the testimony of appellant and give credence to that given by the appellee. Scott v. Gibson Oil Co., 471 S.W.2d 924, 926 (Tex.Civ.App.-Tyler 1971, n.w.h.); Schwab v. Stewart, 387 S.W.2d 939, 943 (Tex.Civ.App.-Amarillo 1965, writ ref’d n.r.e.), 390 S.W.2d 752; Peck v. Century Concrete Products, Inc., 375 S.W.2d 459, 462 (Tex.Civ.App.-Fort Worth 1964, writ ref’d n.r.e.); Southland Life Insurance Company v. The Aetna Casualty and Surety, 366 S.W.2d 245, 248 (Tex.Civ.App.-Fort Worth 1963, writ ref’d n.r.e.); Martin v. J. S. Hunt Lumber Co., 180 S.W.2d 956 (Tex.Civ.App.-Waco 1944, n.w.h.); Hunt v. Joske Bros. Co., 300 S.W. 201, 203 (Tex.Civ.App.-San Antonio 1927, writ dism’d).

There is ample evidence to support the trial court’s findings of fact and conclusions of law. We have considered all of appellant’s points of error and they are overruled.

Judgment of the trial court is affirmed.