author: SHRIVER, Presiding Judge.

text:
    Dewey CARDWELL and wife, Louvinnie Cardwell, Plaintiffs-Appellees, v. Ernest HACKETT, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    March 31, 1978.
    Certiorari Denied by Supreme Court Aug. 7, 1978.
    James B. Dance, Carthage, for plaintiffs-appellees.
    Solon Fitzpatrick, Carthage, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

This suit was commenced in the General Sessions Court of Smith County, Tennessee by the issuance of a civil warrant, as follows:

“To any Lawful Officer to Execute and Return:
Summon Ernest Hackett, a resident of Smith County, Tennessee, to appear Tuesday, April 12, 1977 at 10:00 A.M. before the Judge of the Court of General Sessions for Smith County, Tennessee, at the courtroom of said Court of General Sessions at the County Courthouse at Carthage, Tennessee, to answer in a civil action brought by Dewey Cardwell and wife, Louvinnie Cardwell, residents of Smith County, Tennessee, for breach of implied warranty, the plaintiff having purchased a mobile home from defendant on November 26, 1976 in Smith County, Tennessee to be used as a dwelling and relying on defendant’s skill or judgment to furnish a suitable mobile home for dwelling purposes, said mobile home not being fit as suitable for such purpose. This 10th day of March, 1977.
/s/ Ruth Watson
Deputy Clerk, Court of General
Sessions, Smith County, Tennessee”

After a hearing, a judgment was entered for the plaintiffs against the defendant for $1,500.00 and costs, from which judgment Ernest Hackett prayed and was granted an appeal to the Circuit Court, the foregoing judgment and appeal being dated May 13, 1977.

After a hearing in the Circuit Court the following judgment was entered:

“JUDGMENT
This cause came on to be heard on this the 11th day of August, 1977 before the Honorable Willard Hagan, Circuit Court Judge, sitting without the intervention of a jury, upon the testimony of witnesses examined in open Court and the entire record of this cause, from all of which the Court is of the opinion that defendant holds himself out to the public to be a dealer in mobile homes and that plaintiffs relied upon his judgment and skill to furnish them with a mobile home to be used for dwelling purposes and that said mobile home is not suitable for said purposes.
It is, therefore, ORDERED, ADJUDGED and DECREED that plaintiffs have and recover from the defendant the sum of FIFTEEN HUNDRED ($1,500.00) DOLLARS and that said mobile home be returned to the defendant.
Defendant shall pay the costs of this cause for which let execution issue if necessary.
And to all of which the defendant excepted and prayed an appeal and same is granted and he is allowed thirty days to file his appeal bond and 90 days to file his bill of exceptions and otherwise comply with the rules governing appeals.
/s/ Willard Hagan
Judge”

From the foregoing judgment, defendant, Ernest Hackett, was granted an appeal to this Court and has assigned errors.

The facts, briefly stated, are as follows:

Plaintiffs, Dewey Cardwell and wife, Louvinne Cardwell, purchased a mobile home, or house trailer, from defendant, Ernest Hackett, on or about November 23, 1976 for which they paid the defendant $1,500.00. Before purchasing the house trailer, plaintiffs went with the defendant to the lot where it was located and examined it. Mr. Cardwell testified that the first time they went to see it, the defendant was not there and they only saw it from the outside. They later went back with the defendant and examined it again, going inside. He testified as follows:

“Q. Tell me what you saw before you bought the mobile home?
A. I never seen very much of nothing more than it needed painting more than anything else. And I saw a hole, where you could put a fist right down in the corner.
Q. Well, did you say anything to Mr. Hackett about that particular hole right there?
A. Yeah. He said. ‘That don’t need nothing but a plank tacked over it, that will be all right.’ ”

He was then asked if the trailer had anything inside it when they examined it, and he answered that it had some old furniture stored in it.

Mr. Cardwell testified that he told the defendant he wanted to live in the trailer. He testified as follows:

“Q. And you thought it would be suitable to live in?
A. That’s right.”

He further stated that the defendant had the trailer sent to the place plaintiffs designated.

The record shows that the trailer was equipped with a gas stove and plaintiff told defendant that he wanted it wired for an electric stove.

He further testified that after he had bought the trailer, he found two rotten holes in the walls which he had not known about before he bought it and he stated that he could see daylight between the walls and the floor.

He was then asked and answered:

“Q. In your opinion, is the mobile home fit to live in at all?
A. No, it ain’t fitting for nobody to live in.”

He further testified that he then asked the defendant if he could get his money back or try to get another trailer and the defendant said: “I will try.” And, he further stated that no one had lived in the trailer since he bought it.

On cross-examination, Mr. Cardwell was questioned about his inspection of the trailer and stated:

“A. We went in the last time, yeah. We walked around and looked at it, but we didn’t check it out real close.”

It is insisted by counsel for plaintiffs that because of the furniture in the trailer, they were unable to inspect it so as to see some of the defects about which they complain; however, when asked on cross-examination about the furniture, he described it as being: “Two couches and two chairs, and two old bed mattresses.”

He also testified to the fact that defendant arranged for the trailer to be turned around at the request of plaintiffs and it was reset at their request.

He testified that Mr. Hackett had told him before he bought the trailer that it was not wired for an electric stove and that after he told the defendant that he wanted it so wired, “He had the trailer rewired.” The record shows that this was done at defendant’s expense although it was not part of the original bargain.

Mr. Cardwell further testified that the trailer is “sitting down there right where it was at,” and stated that he had not tried to sell it.

Mr. Louis Barkley, a carpenter, testified that the plaintiffs did not ask him to examine the trailer but, “some of their folks asked me to go by and look at it.” He stated that he had gone by to look at it about a month or a month and a half previously. (The trial was conducted on August 11, 1977 while the trailer had been purchased in November of 1976)

Mr. Barkley testified that the trailer was in pretty bad shape, stating: “It was just in bad shape, as far as I was concerned.” He was asked if he thought it was suitable to live in, and he answered: “It wouldn’t be for me, no, sir.”

On cross-examination, Mr. Barkley stated that he did not see the trailer in November or January and he did not know what might have happened to it since then.

Mr. William Napier, a relative of plaintiffs on whose property the trailer was placed, also testified that, in his opinion, it had deteriorated. He was asked about the furniture inside the trailer, and he answered:

“A. In the way of furniture, there was very little.”

He was asked if he saw the condition that he described when he walked through there, and he stated: “I seen it when I walked through there, yes.”

It was brought out on cross-examination of Mrs. Cardwell that at the trial- in the General Sessions Court she had said that she thought the trailer was not fit to live in before they bought it.

The defendant, Ernest Hackett, when asked if the walls and floor of the trailer had separated, stated that if that condition existed, it occurred after he sold it to the plaintiffs. When asked if it was in livable condition, he answered:

“Yes, sir. There has been two families move out of it, been living in it for years. No one complained of it then.”

Mr. Hackett also testified that he expressly stated to Mr. Cardwell before he purchased the trailer that it had a gas stove in it and that if he wanted an electric stove, it would have to have a new switch box and a cable run to the stove because it was not wired for an electric stove. He further testified that, although it was not a part of the bargain, he later sent an electrician out there and did have the trailer wired for a stove and that it was inspected and approved by the County Inspector. He also testified that he had some other improvements made to satisfy some of the complaints of the plaintiffs and that after the electrical wiring was put in and he notified plaintiffs that it was ready for them to move in, he never heard anything further from them until he was served with a summons in this lawsuit in the following March or April.

The defendant testified that when plaintiffs were looking at the trailer prior to their purchase of it, Mr. Cardwell mentioned something about the walls around one of the windows. He testified:

“I said, ‘Mr. Cardwell, that is where the windows have sweated in time and have run down on the varnish and caused it to peel up.’ And, I told him that was there. I showed it to him and there was one hole that you could see through the trailer from the inside and I showed it to him, and told him there was one screw out of that carved piece of molding.”

He described the furniture that was in the trailer as being two beds stacked on top of each other and two box springs and two mattresses on top of each other, and stated that there was nothing to keep plaintiffs from seeing all of the inside of the trailer.

Mr. Hackett stated that after they looked at the trailer, Mr. Cardwell said: “Well, if I get a place to set it, we probably will buy it,” and a few days later they came back to the store, went back out there and went through it again, and he carried them through it twice and then they purchased it.

On cross-examination, he stated that he knew that they intended to live in the mobile home but he denied that he was actually in the business of selling mobile homes.

—Assignments of Error—

There are ten assignments which it will not be necessary to set out seriatim but they may be summarized by stating:

(1) That the Court erred in rendering judgment against defendant because there is.not evidence to support the judgment.

(2) That the evidence preponderates against the judgment.

(3) The Court erred in rendering judgment against defendant because the plaintiffs inspected the mobile home before purchasing it and, therefore, there was not any implied warranty of fitness as provided in Section 47 — 2—316(3)(b), T.C.A.

Assignments (4), (5) and (6) assert error in rendering judgment against defendant because plaintiffs did not reject the trailer within a' reasonable time after delivery; failed to state in their rejection any particular defect; and they retained the mobile home after it was rewired and approved, thus, accepting same as provided by Section 47-2-606, T.C.A.

(7) Asserts error because plaintiffs failed to notify defendant of any breach of contract, as required by Section 47-2-607, T.C.A.

(8) Asserts error in rendering judgment because of plaintiffs’ failure to offer any proof of damages as to the difference in value at the time of acceptance as against its value had it been as warranted.

(9) Asserts error for failure of plaintiffs to try to sell the trailer and credit the purchase price against their claimed recovery, as provided in Section 47-2-711(3), T.C.A.

(10) Charges error in giving judgment for the purchase price and ordering a return of the mobile home since there is nothing in the pleadings to support such a judgment.

—Our Conclusions—

At the outset of the trial in the General Sessions Court, counsel for plaintiffs stated:

“We are proceeding under UCC, under Sales, Tennessee Code Annotated § 47 — 2— 315, Implied Warranty, Fitness for a Particular Purpose. If I might quote that: ‘Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.’ ”
Mr. Fitzpatrick responded:
“We did not breach an implied contract and he has not complied with the law after he got it. . . . All the general issues.”
“THE COURT: Okay. The implied statute' was just read. We will see if the facts make it applicable.”

Thus, the pleadings in this case are as set forth in the civil warrant issüed in the General Sessions Court unless amplified or modified ore tenus.

From the statement of counsel above quoted it is seen that the plaintiffs’ case is based squarely on the statute, § 47-2-315, T.C.A., Implied Warranty.

We begin with the proposition as stated by this Court in Hoback v. Coca Cola Bottling Works, 20 Tenn.App. 280, 98 S.W.2d 113 (1936), that the provisions of the Sales Act, § 47-2-315, et seq., as to implied warranties are simply declaratory of the pre-existing law in this State.

As announced in a number of decisions, including Bunch v. Etheridge, 27 Tenn.App. 307, 180 S.W.2d 225 (1943), the burden of establishing a breach of implied warranty is on the one asserting the breach.

As was held in LeSueur v. Franklin Limestone Co., 14 Tenn.App. 67 (1931), no warranty as to quality or fitness of a commodity will be implied when defects in the same are known to the buyer, or he has knowledge of facts sufficient to put him on inquiry or to charge him with notice. No such warranty will be implied where the seller states enough to put one of ordinary intelligence on notice.

In Weber Iron & Steel Co. v. Wright, 14 Tenn.App. 451 (1932), it was held:

“In an action to recover the purchase price paid for secondhand iron pipe, where the seller was advised of purpose for which it was bought and purchaser had opportunity to discover and could have discovered defects, there was no implied warranty.”

In Gaar, Scott & Co. v. Young, Tenn.Ch. App., 62 S.W. 631, it was held:

For breach of warranty measure of damages is difference between represented and actual value.
Section 47-2-316(3)(b), T.C.A., provides:
“(b) When the buyer before entering into the contract has examined the goods or sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him.”

Counsel for plaintiffs insists that they were purchasing the mobile home for a particular purpose, to-wit, as a house in which to live, and that this fact was made known to the defendant and that there was an implied warranty that said mobile home was suitable for such purpose, and, further, that it was discovered by plaintiffs after they had purchased said mobile home that it was, in fact, not suitable for use as a home.

In the notes of T.C.A. § 47 — 2-315, Im-. plied Warranty, it is said:

“2. A ‘particular purpose’ differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. . . . ”

Certainly, a mobile home or house trailer such as that involved here is customarily and ordinarily used as a place in which to live and there was nothing particular or peculiar about the use for which plaintiffs bought the trailer and we find nothing in the record that indicates that defendant made any special representations as to its suitability for that purpose.

Thus, under the above authorities cited and quoted from, it would seem that there was no implied warranty as to defects which were plainly apparent to plaintiffs when they examined the' trailer at least twice before buying it. Hence, it would seem that Assignment No. 3 should be sustained.

The Trial Judge rendered judgment for the return of the purchase price of the trailer, $1,500.00, to plaintiffs and a return of the house trailer to the defendant. Thus, his judgment is a rescission of the contract and an effort to restore the parties to statu quo.

It seems to us that this is error, as charged in Assignment No. 10, because the pleadings do not encompass a suit for rescission.

As a matter of fact, rescission is an equitable remedy and, as stated in 17A C.J.S. Contracts § 413:

“There is no arbitrary right to rescind a contract. The right is governed by equitable principles . . . .”
“Consequences:
“A court of equity will not rewrite or abrogate contracts to protect parties from those consequences which are attendant on their voluntary abandonment of contract and which consequences were reasonably foreseeable when contractual obligations were assumed. Minn.—Liggett v. Koivunen, 34 N.W.2d 345, 227 Minn. 114. . . .
“A contract cannot be rescinded merely because of the hardships imposed by its improvident character, or because the contract has become more burdensome in its operation than was anticipated, or because a party finds, in the light of changed conditions, that he has made a bad deal, or because he finds the contract less profitable to him than he had anticipated when the contract was made. . . ” 17A C.J.S. Contracts § 417, p. 509.

In Pipkin v. Lentz, 49 Tenn.App. 206, 354 S.W.2d 87 (1961), it was said:

“Mere inadequacy of consideration is not a ground for rescission.”
“Right to rescind contract for fraud must be exercised immediately upon its discovery, and any delay in doing so, and continued employment, use, and occupancy of property received under contract will be deemed confirmation.”
“Fraud is never presumed but must be proved.”

As was said in Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn.1977):

“There is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint. Clark v. National Travelers Ins. Co., 518 F.2d 1167 (6th Cir. 1975). And where, as here, no claim for relief is stated by a party, a court may properly dismiss the action, either on motion or sua sponte. Dodd v. Spokane County, Washington, 393 F.2d 330 (9th Cir. 1968); Clinton Community Hospital Corp. v. Southern Maryland Medical Center, 374 F.Supp. 450 (D.Md. 1974), aff’d 510 F.2d 1037 (4th Cir. 1975) cert. den., 422 U.S. 1948, 95 S.Ct. 2666, 45 L.Ed.2d 700 (1975). Accordingly, the judgment of the trial court dismissing the action is affirmed. Costs incident to the appeal are adjudged against the appellant and his surety.”

This was a completed transaction. The trailer was delivered and paid for after at least two personal inspections of it by plaintiffs before they paid for and accepted the trailer.

There is nothing in the pleadings nor in the proof to support a holding that plaintiffs were incompetent to make the contract and there is no charge of fraud and no finding of fraud on the part of the defendant in the opinion and decree of the Trial Court.

The Trial Judge expressed sympathy for the plaintiffs in having made a bad bargain and this Court shares that feeling of sympathy but is unable to find from this record that the plaintiffs were misled in the transaction or that they were incapable of knowing and understanding what they were doing.

For the reasons above indicated, we find it necessary to reverse the judgment of the Trial Court and dismiss plaintiffs’ suit, but without prejudice to plaintiffs’ right to file a suit in Chancery seeking rescission, but this is not to imply that a decree for rescission would necessarily be affirmed by this Court on this record if supported by proper pleadings.

REVERSED AND DISMISSED.

TODD and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: LEWIS, Judge.

license: Public Domain

text:
    Eph H. HOOVER, Jr., Betty Hoover Derryberry and Dorothy Crawford Hoover Milam, Plaintiffs-Appellees, v. STATE BOARD OF EQUALIZATION, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 27, 1978.
    Certiorari Denied by Supreme Court April 2, 1979.
    William W. Burton, D. Russell Thomas, Murfreesboro, Lewis B. Hollabaugh, Nashville, for plaintiffs-appellees.
    William Leech, Atty. Gen., David S. Weed, Sr. Asst. Atty. Gen., Nashville, for defendant-appellant.
   OPINION

LEWIS, Judge.

This appeal raises an issue concerning the proper interpretation of T.C.A. § 67-606(5): Whether a court-imposed restriction that limits a life tenant’s ability to alien, convey, or encumber their estate or to lease the estate for a period of longer than one year constitutes a “legal restriction(s) on use” and thereby should be. considered in the basis of valuation for property tax purposes.

Plaintiffs acquired property in Rutherford County upon the intestate demise of their mother, Mrs. Eleanor Hoover, and their father’s relinquishment of- his estate by courtesy. The property was conveyed to the children plaintiffs by the court which imposed restrictions in the deeds to protect their interests as minors. All deed restrictions are the same and are accurately represented by the following granting clause in one of the deeds.

“I, James R. Jetton, as Clerk and Master, do hereby transfer and convey to E. H. Hoover, Jr., his heirs and assigns, for and during the period of his natural life and at his death to his child, children, or descendants thereof living at the time of his death per stirpes and if he have no child, children or descendants thereof living at the time of his death, then to Miriam Martha Hoover, Eleanor Elizabeth Hoover and Dorothy Crawford Hoover, or such of them as may be living at the time of his death and to the descendants, living at the time of the death of the said E. H. Hoover, Jr., of such as may be dead, per stirpes and not per capita, free from the debts, contracts, and liabilities of each respective grantee and exempt from attachment or execution and without the power in each respective grantee to alien, convey or incumber their respective estates and without the power in each respective grantee to lease said property for a longer term than one year in any one contract.”

The plaintiffs appealed their property tax assessment for the year 1975. The Hearing Examiner for the State Board of Equalization adjusted the .valuation of the properties to reflect the deed restrictions effect on the valuation of the properties.

The Assessment Appeals Commission reinstated the original Rutherford County evaluation, asserting that the deed restrictions affected the alienability of the property and, thus, fell outside the scope of T.C.A. § 67-606(5). The State Board of Equalization refused to review the Commission’s decision.

The valuation placed by each of the authorities are:

VALUES PLACED BY RUTHERFORD COUNTY

Description Land Value Improvement Value Total Value Assessment^

Map 176, P-22 $ 22,750 $ 2,400 $ 25,150 $ 6,288

Map 112, P-1 257,000 61,000 312,000 78,000

Map 112, P-3 375,000 22,850 397,850 99,463

Map 177, P-14 30,600 6,500 37,100 9,275

Map 177, P-15 23.350 -0-23.350 5.838

TOTAL $708,700 $92,750 $795,450 $198,864

VALUES PLACED BY HEARING EXAMINER

Description Land Value Improvement Value Total Value Assessment^

Map 176, P-22 $ 14,400 $ 2,400 $ 16,800 $ 4,200

Map 112, P-1 156,875 60,990 217,865' 54,466

Map 112, P-3 234,475 22,850 257,225 59,306

Map 177, P-14 22,000 4,000 26,000 6,500

Map 177, P-15 13,400 -0-13.400 3,350

TOTAL $441,150 $90,240 $531,290 $127,822

VALUES PLACED BY ASSESSMENT APPEALS COMMISSION AND AFFIRMED BY THE STATE BOARD OF EQUALIZATION

Description Land Value Improvement Value Total Value Assessment

Map 176, P-22 $ 22,750 $ 2,400 $ 25,150 $ 6,288

Map 112, P-1 257,000 61,000 ■ 312,000 78,000

Map 112, P-3 375,000 22,850 397,850 99,463

Map 177, P-14 30,600 6,500 37,100 9,275

Map 177, P-15 23,350 -0-23,350 5,838

TOTAL ’ $708,700 $92,750 $795,450 $198,864

Plaintiffs filed a Petition for Writ of Certiorari in the Chancery Court for Davidson County. The Chancellor held that the State Board of Equalization decision not to consider the alienability restrictions in the deeds violated T.C.A. § 67-606. The case was “remanded to the Board of Equalization for a determination of the assessment considering the alienability restrictions in the deeds as legal restrictions on use as required by T.C.A. § 67-606.”

Defendant has duly perfected its appeal and assigns two (2) errors:

1. The Lower Court erred in holding that the decision of the State Board of Equalization not to consider the alienability restrictions in the deeds violates T.C.A. § 67-606.
2. The Lower Court erred in reversing the decision of the State Board of Equalization because:
“The conclusion that alternative uses are not precluded by the deed restrictions is a conclusion which is unsupported by the evidence in the record.”

Tennessee Code Annotated § 67 — 606 has been amended but subsequent amendments are immaterial to this appeal. Following is the statute as it applies to facts of this case (Supp.1975):

67-606. Basis of valuation. — The value of all property shall be ascertained from the evidences of its sound, intrinsic and immediate value, for purposes of sale between a willing seller and a willing buyer without consideration of speculative values.
In determining the value of all property of every kind, the assessor shall be guided by, and follow the instructions, of the appropriate assessment manuals issued by the state division of property assessments and approved by the state board of equalization.
For determining the value of real property, such manuals shall provide for consideration of the following factors:
(1) location;
(2) current use;
(3) whether income bearing or nonin-come bearing;
(4) zoning restrictions on use;
(5) legal restrictions on use;
(6) availability of water, electricity, gas, sewers, street lighting, and other municipal services;
(7) natural productivity of the soil, except that the value of growing crops shall not be added to the value of the land; and
(8) all other factors and evidences of value generally recognized by appraisers as bearing on the sound, intrinsic and immediate economic value at the time of assessment.
For determining the value of industrial, commercial, farm machinery and other personal property, such manuals shall provide for consideration of the following factors:
(1) current use
(2) depreciated value
(3) actual value after allowance for obsolescence
(4) all other factors and evidences of value generally recognized by appraisers as bearing on the sound, intrinsic and immediate economic value at the time of assessment.
It is the legislative intent hereby declared that no appraisal hereunder shall be influenced by inflated values resulting from speculative purchases in particular areas in anticipation of uncertain future real estate markets; but all property of every kind shall be appraised according to its sound, intrinsic and immediate economic value which shall be ascertained in accordance with such official assessment manuals as may be promulgated and issued by the state division of property assessments and approved by the state board of equalization pursuant to law.
Provided, that if the tax computed on an erroneous basis of valuation or assessment has been paid prior to certification of the corrected assessment by the assessor, the trustee or municipal collector shall, within sixty (60) days after receipt of such certification from the assessor, refund to the taxpayer that portion of such tax paid which resulted from the erroneous assessment, such refund to be made without the necessity of payment under protest or such other requirements as usually pertain to refunds of taxes unjustly or illegally collected. [Acts 1973, Ch. 226, § 6; 1974 (Adj.S.), ch. 771, §8.]

Tennessee Code Annotated § 67-606(5), so far as we are able to determine, has never been construed by the courts of this State. However, in properly deciding the issues presented here, there is some guiding analogous authority in this and other jurisdictions.

In Town of Secaucus v. Damsil, 120 N.J. Super. 470, 295 A.2d 8 (App.Div.1972), concerning the effect of a cloud on the title to property, the court stated:

As this Court said in Re Appeal of Neptune Tp., 86 N.J.Super. 492, 207 A.2d 330 (Appeal Div.1965):
“The law requires an assessment of the value, not of the owner’s title, but of the land; the assessed value represents the value of all interests in the land. Stack v. Hoboken, 45 N.J.Super. 294, 300, 132 A.2d 314 (App.Div.1957) [at 499, 207 A.2d 330].” ...
It is understandable that the purchaser will insist on a discount from the true value of the property if he buys a doubtful title, but the fact that he does so affords no justification for applying a discount in a tax valuation case. Such a sale and discount is entitled to no essential weight in ascertaining what ‘a willing buyer would pay a willing seller’ for all the interest in the land. Id. at 474, 295 A.2d at 10.

For property tax purposes, value attaches to the property itself, not to the interest of the current party in possession. The purchase and sale between the hypothetical parties envisions a hypothetical transfer of the present possessory interests) and any future interest attendant thereto. Here, the property interest consists of the present possessory life estate and the expectant remainder interest that completes the full fee in the lands.

In placing a valuation on the property, T.C.A. § 67-606 recognizes the existence of restrictions and encumbrances that affect the value of the fee simple estate, i. e. zoning restrictions, easements, etc. These are restrictions that run with the land, rather than those that are personal to the parties in possession.

In NeBoShone Ass’n v. State Tax Commission, 58 Mich.App. 324, 227 N.W.2d 358 (1975), a nonprofit association which owned land used as a wildlife reserve appealed its valuation as it was affected by a navigable river running through the property.

Concerning the self-imposed restriction on the use of the land, the Michigan Court of Appeals stated:

A private individual could not self-impose a restriction whereby he might be able to limit or avoid paying his just share of the ad valorem taxes due to government nor can a corporation. Id. at 334, 227 N.W.2d at 363.

In Stack v. City of Hoboken, 45 N.J.Super. 294, 132 A.2d 314 (App.Div.1957), concerning a title holder’s status in relation to the property, the court stated:

It must be apparent that in assessing the value of land, account should not be taken of the condition of the title of the alleged land owner or of any cloud upon it; nor should account be taken of the possibility that he would be unwilling to sell it because of an understanding with his grantor, or of the possibility that a purchaser would be put on notice that this grantor has an equitable interest in the property. The law requires an assessment of the value, not of the purported owner’s title, but of the land; the assessed value of the land represents the value of all interest in the land.' Id. at 300, 132 A.2d at 317-8.

Defendant contends that this principle is applicable to the law in Tennessee and that “the condition of appellees’ title is irrelevant with respect to tax assessment and valuation purposes.”

Defendant directs our attention to Sherrill v. Board of Equalization for the State of Tennessee, 224 Tenn. 201, 452 S.W.2d 857 (1970). There, the remaindermen appealed from a dismissal of their petition for certio-rari based on an allegation that the State Board of Equalization incorrectly had affirmed an assessment which assessed the remaindermens’ interest in the property.

The Supreme Court held that the full value of the land is taxed in the hands of the life tenants, notwithstanding the fact that a life tenant has less than a full and unrestricted ownership of the land.

The restrictions present in the deed before us are primarily restrictions on the alienability of the property. The term “primarily” is used in recognition of the reality that when alienation is restricted, there is a resultant effect on the use of the property. However, the incidental effect on the use is not within the concerns of T.C.A. § 67— 606(5). That section directs consideration to “legal restrictions on use” only.

These properties are not subject to any direct restrictions on use. In fact, plaintiffs are free to lease the property within the ambit of the restriction on such alienation. It is their concern that such restrictions greatly inhibit one avenue of use which may, in fact, be one of the prime values of. the properties.

However, an alternate construction of T.C.A. § 67-606(5), as argued by the plaintiffs, would have a far-reaching effect on property taxation in Tennessee. To value and assess real property by, taking into consideration a self-imposed or court-ordered temporary restriction, as in the facts at hand, would negate the clear mandate of the willing buyer and willing seller concept and could allow property owners to effectively control the valuation of their properties for taxation purposes by careful imposition of limited restrictions in the deeds to their properties.

Defendant’s first assignment of error is sustained.

Defendant’s second assignment of error asserts that if an administrative agency commits harmless error, the reviewing court cannot use it as a proper basis for reversal of the agency’s decision. Defendant’s contention is in accord with T.C.A. § 4 — 523(i), which provides:

No agency decision pursuant to a hearing in a contested case shall be reversed, remanded, or modified by the reviewing court unless for errors- which affect the merits of the decision complained of. Id. Supp.1978.

The Chancellor stated as a ground for reversal of the Assessment Appeals decision:

[T]he conclusion that alternate uses are not precluded by the deed restrictions is a conclusion which is unsupported by evidence in the record.

Such a conclusion, whether or not supported by material and substantial evidence in the record, does not affect the merits of the decision as contemplated by T.C.A. § 4-523(i).

Therefore, the error, if in fact it constituted error, was harmless and, thus, did not afford the Chancellor a basis for reversal.

It results that the decision of the Chancellor is reversed and the valuations as determined by the Assessment Appeals Commission are reinstated.

Costs are taxed to plaintiffs-appellees.

TODD and DROWOTA, JJ., concur.


author: ODOM, Judge. ONION, Presiding Judge. W. C. DAVIS, Judge,

text:
    Joe Riley DIRCK, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 54370.
    Court of Criminal Appeals of Texas, Panel No. 3.
    May 17, 1978.
    On Rehearing April 18, 1979.

      Warren E. Hancock, Jr., Houston, for ap-pellánt.
    Carol S. Vance, Dist. Atty., James C. Brough and Henry K. Oncken, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated assault. Appellant was found guilty of this offense as a lesser included offense on an indictment charging murder with malice. Punishment was assessed by the jury at a $1,000 fine and two years in jail.

In his first six grounds of error appellant contends error was committed in the instructions to the jury. Objections were dictated to the court reporter and included in the transcribed court reporter’s notes in this record, along with the testimony, jury arguments, and other trial proceedings. The transcribed court reporter’s notes of the objections were not endorsed with the Court’s ruling and official signature.

Article 36.14, V.A.C.C.P., governs the procedure for making objections to the court’s charge and presenting them on appeal. It has long required that such objections be in writing. In 1975 it was amended by adding this sentence:

“The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court, before the reading of the court’s charge to the jury, and are subsequently transcribed, endorsed with the court’s ruling and official signature, and filed with the clerk in time to be included in the transcript.” (Emphasis added.)

Appellant failed to comply with the mandatory provisions of the statute in presenting his objections for the appellate record. It is not sufficient just to secure permission of the court and dictate to the court reporter objections to the charge. The subsequent steps under the quoted provision must also be followed. That was not done here. The objections present nothing for review.

In his remaining ground of error appellant contends the trial court erroneously excluded the testimony of a defense witness. The rule had been invoked (Art. 36.-03, V.A.C.C.P.) and one of appellant’s witnesses was present during some of the testimony. When the witness was called to testify, the State objected for violation of the rule, and the court sustained the objection. Appellant made his bill of exception showing what the testimony would have been. The witness would have testified to events occurring in Missouri some time before the offense, which was committed in Houston. The materiality of the excluded testimony was tangential at best.

The matter of enforcement of the rule lies in the sound discretion of the trial court. Art. 36.04, V.A.C.C.P.; Barnes v. State, Tex.Cr.App., 520 S.W.2d 401; Marshburn v. State, Tex.Cr.App., 491 S.W.2d 663; Smith v. State, Tex.Cr.App., 472 S.W.2d 121. No abuse of discretion is shown here and the ground of error is overruled.

The judgment is affirmed.

Before the Court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Presiding Judge.

The panel opinion on original submission refused to consider appellant’s objections to the court’s charge at the guilt stage of the trial because his counsel had orally dictated the objections to the court reporter and that he did not subsequently have the same transcribed “and endorsed with the court’s ruling and official signature, and filed with the clerk in time to be included in the transcript” in accordance with the 1975 amendment to Article 36.14, V.A.C.C.P. The holding is in accord with the opinion on original submission in Jewell v. State (Tex.Cr.App.1979) (# 58,315 # 58,321, 11/-29/78), but in conflict with the panel opinions in Walton v. State, 575 S.W.2d 25 (Tex.Cr.App.1978), and Frazier v. State, 576 S.W.2d 617 (Tex.Cr.App.1978). This necessitates considering the question here presented en banc on rehearing.

Appellant urges on rehearing that his counsel orally dictated the objections to the court reporter with the consent of the trial court, and in its presence, that the court ruled on such objections at the time prior to the reading of the charge to the jury, that the objections and the court’s rulings thereafter were transcribed and made a part of the transcription of the court reporter’s notes which were filed with the clerk of the trial court, and the entire record was later approved, without objections from either party, with the official signature of the trial judge.

Appellant argues that there was substantial compliance with the 1975 amendment to Article 36.14, supra, that the trial judge was not misled or “sandbagged,” and that the objections to the charge are clearly before this court and understandable.

Perhaps a look at the history of Article 36.14, V.A.C.C.P., might prove interesting in light of the question presented.

Article 36.14, V.A.C.C.P., came into being as part of the revision of the Code of Criminal Procedure in 1965 (Acts 1965, 59th Leg., Vol. 2, p. 317, ch. 722). It was a restatement of former Article 658, V.A.C.C.P., 1925, which required the objections to the court’s charge to be in writing and presented to the court prior to the reading of the charge to the jury. As a result of the past decisions of this court that a defendant must except to the overruling of his objections to the charge in order to preserve error, two sentences were added at the end of the former statute in the revision. Article 36.14, supra, as enacted in 1965, read as follows:

“Subject to the provisions of Article 36.07 in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case; not expressing any opinion as to the weight of the evidence, not summing up the testimony, discussing the facts or using any argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof. In no event shall it be necessary for the defend ant to except to the action of the court in over-ruling defendant’s exceptions or objections to the charge.” (Emphasis supplied.)

As noted in the Special Commentary to said Article 36.14, the requirements of the statute should be compared with the provisions of Article 40.09, § 4, V.A.C.C.P., 1965, that the court reporter shall take shorthand notes of all trial proceedings, including objections to the charge, and that such notes certified to by the reporter and included in the record shall establish the occurrence and existence of all objections and exceptions to the court’s action and refusals of the court to act and other events thereby shown, and no further proof of the occurrence or the existence of the same shall be necessary on appeal.

However, in Smith v. State, 415 S.W.2d 206 (Tex.Cr.App.1967), this court (without reasoning) held that the requirements of said Article 36.14 would control over the provisions of Article 40.09, § 4, supra. In Seefurth v. State, 422 S.W.2d 931 (Tex.Cr.App.1967), the court in reviewing said Article 36.14 and its predecessors noted the statute was mandatory and that there must be strict compliance with its provisions, and observed that the real purpose of the statute was to enable the trial judge to know in what respect the defendant regarded the charge defective and to afford him an opportunity to correct it before reading the charge to the jury. The trial judge should not be “sandbagged” resulting in unnecessary reversals.

Under the former 1925 Code of Criminal Procedure, juries in felony cases were not permitted to separate after they had been sworn and impaneled until they had returned a verdict “unless by permission of the court, with the consent of the attorney representing the State and the defendant, and in charge of an officer.” Article 668, V.A.C.C.P., 1925.

In light of the requirement that objections to the charge be in writing, much time was consumed while the jury remained sequestered. This was so because the attorneys frequently would, request time to repair to their offices to prepare and reduce to writing their objections in order to comply with the statute. The time consumed often resulted in night sessions or delay of the trial until the next day with the jurors being sequestered for another entire night at taxpayers’ expense and the jurors’ inconvenience. As a result, a common practice arose: In order to conserve time, the trial judge would urge the attorneys to orally dictate their objections to the court reporter in his presence and the other counsel and he would rule on them and would assure the attorneys that the objections could later be transcribed by the court reporter and could then be filed and back-dated by the clerk to show compliance with the statute.

The practical effect of such procedure was the defense counsel would frequently forget to have their dictated objections transcribed and as a result their objections would not be considered on appeal.

The rules as to the separation of the jury were greatly liberalized by the 1965 Code of Criminal Procedure, see Article 35.23, V.A. C.C.P., but nevertheless, the practice of oral dictations to the court reporter, perhaps as a convenience to all concerned, remained a common practice and still those objections were not considered on appeal.

Many lawyers appearing before this court complained in oral argument that they had been misled in orally dictating their objections to the court reporter and requested this court to consider objections to the charge although not in compliance with Article 36.14, supra. Orally during argument and in written opinions this court has repeatedly told the attorneys that the problem was a legislative problem, not a judicial one, as this court generally has no rule-making authority with regard to criminal procedure.

As a result of this continuing problem, Article 36.14, supra, was amended in 1975 by adding this sentence:

“The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of and with the consent of the court, before the reading of the court’s charge to the jury, and are subsequently transcribed, endorsed with the court’s ruling and official signature, and filed with the clerk in time to be included in the transcript.” (Acts 1975, 64th Leg., p. 617, ch. 253, § 1, effective September 1, 1975.)

The State argues in its brief that the sentence added to Article 36.14, supra, in 1975 was lifted intact from Rule 272, Texas Rules of Civil Procedure, in effect at the time of the enactment of the new amendment. The State cites Barber v. Corpus Christi Bank and Trust, 506 S.W.2d 254, 257 (Tex.Civ.App.1974), which held that where the objections were orally dictated objections to the submission of a special issue but the record did not reveal that the transcribed objections were ever presented to the trial judge so that he could endorse his ruling and official signature thereon as required by Rule 272, supra, the objections could not be considered. We find no Texas Supreme Court decision on the matter.

It is noted that Rule 272, Texas Rules of Civil Procedure, has been amended by the Texas Supreme Court, effective January 1, 1976, and now reads:

“The charge shall be in writing, signed by the judge, and filed with the clerk, and shall be a part, of the record of the cause. It shall be submitted to the respective parties or their attorneys for their inspection, and a reasonable time given them in which to examine and present objections thereto, which objections shall in every instance be presented to the court in writing, or be dictated to the court reporter in the presence of the court and opposing counsel, before the charge is read to the jury. All objections not so presented shall be considered as waived. The judge shall announce his rulings thereon before reading the charge to the jury and shall endorse his rulings on the objections if written or dictate same to the court reporter in the presence of counsel. Objections to the charge and the court’s rulings thereon may be included as a part of any transcript or statement of facts on appeal and, when so included in either, shall constitute a sufficient bill of exception to the rulings of the court thereon. It shall be presumed, unless otherwise noted in the record, that the party making such objections presented the same at the proper time and excepted to the ruling thereon.”

Thus, we are confronted with the question of whether we should interpret the 1975 amendment to Article 36.14, supra, in light of Barber v. Corpus Christi Bank and Trust, supra, or observe that there was a substantial compliance with said amendment to Article 36.14, V.A.C.C.P., in the spirit if not the letter of the law under the particular facts of the instant case.

Here the appellant’s counsel, with the consent of the court, orally dictated his objections to the charge to the court reporter and obtained rulings from the court. The same was subsequently included in the transcription of the court reporter’s notes filed with the clerk, and approved by the trial judge with official signature without any objection to the record.

Reading the 1975 amendment to Article 36.14, supra, together with Article 40.09, § 4, supra, which is still on “the books” providing that the court reporters shall take notes of all trial proceedings, including objections to the charge, and that such notes certified to by the reporter and included in the record shall establish the occurrence and existence of all objections and exceptions to the court’s action and refusals of the court to act and other events shown “and no further proof of the occurrence or the existence of same shall be necessary on appeal.” We hold that the objections to the charge in the instant case' were properly preserved. To the extent of any conflict, Smith v. State, supra, is overruled.

Having determined that the objections were properly made, we now turn to appellant’s grounds of error.

First, he contends the court erred in charging on provoking the difficulty, a limitation on his defense of self-defense, in light of the evidence produced. His objection that the evidence was “insufficient” to so charge is in the record before us. If not called for by the facts, a charge on provoking the difficulty constitutes an unwarranted limitation of the right of self-defense. 29 Tex.Jur.2d, Homicide, § 327, p. 635, and cases there cited. It is also well settled that a charge on provoking the difficulty should not be given where the only question for determination is who made the first attack. Howie v. State, 119 Tex.Cr.R. 17, 43 S.W.2d 594 (1931); Dugan v. State, 86 Tex.Cr.R. 130, 216 S.W. 161 (1919).

Appellant contends that in his case this was the only question for determination and that the court should not have charged on provoking the difficulty. The appellant was charged with shooting and killing Edward Barnett Cox, Sr. It appears the appellant was informed by his wife, from whom he was separated, that she had been abducted and taken to Kansas City by the deceased. Without going into all the details, the testimony of the State’s witnesses shows the first assault or attack was made by the appellant. The defense testimony on the other hand reflects that the appellant was attacked by both the deceased and his son before he fired the first shot. Thus, there was a clear conflict in the testimony as to whom made the first attack. In Dugan v. State, supra, it was stated that the issue of provoking the difficulty does not arise from the evidence which is merely conflicting as to who made the first attack. We agree that the charge on provoking the difficulty should not have been given under the evidence produced.

Even if we be wrong in our above evaluation of the evidence, we observe that appellant also contends that even if a charge on provoking the difficulty was proper, under the circumstances, the court erred in failing to charge on all the elements of provoking the difficulty. The elements of provoking the difficulty — intent to provoke and an act or words, or both, calculated to provoke — are still required under the 1974 Penal Code. Appellant urges that while the court charged on the element of intent it failed to require the jury to find that there was an act by the appellant done with the intent to bring on the difficulty and which was reasonably calculated to bring on the difficulty and actually did bring on the difficulty. The appellant relies upon Sorrell v. State, 74 Tex.Cr.R. 505, 169 S.W. 299, 306 (1914); Mason v. State, 88 Tex.Cr.R. 642, 228 S.W. 952 (1921); Lewel-len v. State, 104 Tex.Cr.R. 550,286 S.W. 224 (1926). We agree.

The State candidly admits that the charge was erroneous, but claims a patent clerical error despite the objection to the charge on this ground. Here again, even if this was not reversible error, we note that the appellant claims error also in the charge as the converse of the proposition of provoking the difficulty to which he also directed an objection. It is well settled that where the court instructs the jury on the effect of provoking a difficulty it should also instruct on the converse of the proposition and the instructions on the converse should be given from the defendant’s viewpoint untrammeled by any extra burden or insinuation. 29 Tex.Jur.2d, Homicide, § 328, p. 637; Sorrell v. State, supra; Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967).

The court in charging the converse stated, “But if the defendant had no such purpose in seeking the aforesaid meeting, if he did, and did no act reasonably calculated to provoke the deceased to attack him then his right of self defense would not be forfeited.”

The appellant objected to such charge and called attention to the fact that in submitting the charge the court did not require the reasonable doubt standard. While the charge was an attempt to instruct on the converse of provoking the difficulty, it did not instruct the jurors that if they had a reasonable doubt of whether appellant had the requisite intent or did the requisite act reasonably calculated to provoke the deceased to attack him, etc., the right of self-defense should not be forfeited. • We conclude that the objection was sufficient to call the court’s attention to the error in its omission in the charge.

For the reasons stated, the judgment is reversed and remanded.

ODOM, J., concurs in this result.

W. C. DAVIS, Judge,

dissenting.

I am in agreement with the majority holding that appellant’s objections to the court’s charge, dictated to the court reporter, are reviewable on appeal. Walton v. State, 575 S.W.2d 25 (Tex.Cr.App.1978); Art. 36.14, Vernon’s Ann.C.C.P. However, I must take a path separate from the majority on the issue of provoking difficulties. The majority finds “several” reversible grounds connected with the charge of the trial court on provoking difficulties. Much of this reasoning is not necessary to the disposition given this cause by the majority and therefore is clearly dicta. Nevertheless, I will respond to all of the “several” reversible grounds discussed by the majority.

The majority holds that the trial court committed error in giving a charge on provoking difficulties. Such a charge should not have been given because the record shows “only a conflict as to who made the first attack.” Jones v. State, 149 Tex. Cr.R. 119, 192 S.W.2d 155 (1946). Howie v. State, 119 Tex.Cr.R. 17, 43 S.W.2d 594 (1931). The appellant argues that he was attacked by deceased and deceased’s son while the State’s evidence shows appellant to be the attacker; however, the recobd does not reflect such a simple conflict.

The starting point is a quotation from Jones, supra:

“The right of ‘imperfect self-defense’ arises where accused provokes a difficulty, not with intent to kill, but merely to make an assault to whip the assaulted party, but that by reason of his own acts he was driven to resort to extreme measures in killing a party he had provoked into a difficulty in order to protect himself from death or serious bodily injury.”

To my mind, the record before us presents a fact situation wherein appellant’s right to self-defense was properly limited by a charge on provoking difficulties. The appellant had been informed by his wife of her abduction by deceased, who took her to Kansas City. The appellant placed a loaded pistol in his wrecker truck on Thanksgiving, hoping to sell it to an acquaintance. While driving down a street, appellant sees deceased and deceased’s son walking. Appellant turns around and confronts the pair and in the following argument deceased is shot to death.

Appellant sought a confrontation on a public road with a man he believed had abducted his wife, knowing that he had a loaded pistol to use if the need arose. Appellant, by his own words and deeds caused the situation to exist, and when the situation worsened, appellant had to use the pistol to protect himself. Clearly, appellant’s conduct and words caused this volatile situation to exist and, therefore, the charge on provoking difficulties was required.

“Even if,” says the majority, a “provok-ings” charge should have been given, the charge in the record before us is erroneous. Here, the majority has skipped from the holding that the unwarranted limitation of appellant’s self-defense theory was alone sufficient to reverse, and now discuss the merits of the charge which by their own holding is unnecessary.

In examining the charge, the majority holds that an essential element of provoking difficulties is omitted. The charge, according to the majority, fails to require the jury to find that words or conduct of the appellant must be the cause of the attack by deceased.

The relevant portion of the charge states:

“. . . did some act with intent to produce an occasion to bring on the difficulty and that the same under the circumstances was reasonably calculated to provoke the difficulty, and appellant on such acts killed deceased ... in pursuance of his original design.” (Emphasis added.)

The State readily concedes that this charge improperly related the law of provoking difficulties. However, the State claims that the misstatement worked to appellant’s advantage by narrowing the circumstances under which appellant could be convicted. Under the charge given, the jury had to find that the very act designed to provoke deceased was also the act by which deceased was killed. In other words, the charge limited the jury’s consideration of provocating acts. Instead of considering any act as the act of provocation, the jury had to find that the act of provocation and the act resulting in death were in fact the same act. This limitation could work only to appellant’s advantage, because it restricted consideration by the jury of acts of provocation exclusive of the act which resulted in the death of deceased.

How can appellant be harmed by such a charge? Appellant benefited by an error on the part of the State and received a charge which narrowly defined provoking difficulties. The majority, by ignoring this, has fashioned a new test for reversal in cases where the court’s charge is in issue. Previously, we have looked for harm to an appellant, traceable to the charge of the court, but following today’s decision, a charge that bestows benefits to an appellant may also be the basis for reversal. Brewer v. State, 572 S.W.2d 940 at 943 (Tex.Cr.App.1978).

Finally, the majority argues that the charge on the converse of provoking difficulties was in error because it omitted the reasonable doubt standard.

The court charged as to reasonable doubt in the first sentence of the charge on provoking difficulties. However, in charging the converse the charge stated:

“But if the defendant had no such purpose in seeking the aforesaid meeting, if he did . . .” (Emphasis added.)

While the better practice is to charge reasonable doubt in connection with each defensive theory, failure to do so is not necessarily reversible error. Cain v. State, 154 Tex.Cr.R. 284, 226 S.W.2d 640 (1950). When the charge given by the court adequately presents the defense proposed, the appellant suffers no harm. Thomas v. State, 578 S.W.2d 691 (Tex.Cr.App.1979).

In Prescott v. State, 54 Tex.Cr.R. 481, 113 S.W. 530 (1908), a charge on the converse was phrased, “but, if the defendant had no such purpose.” When viewed as a whole, the charge in Prescott presented no reversible error.

I would affirm the judgment, holding that the charge on provoking difficulties was required and that appellant was not harmed by the errors contained in the charge.

DOUGLAS, J., joins in this dissent.

      . Cf. Barber v. Corpus Christi Bank & Trust, 506 S.W.2d 254 (Tex.Civ.App., Corpus Christi—1974), in which a similar requirement under the Texas Rules of Civil Procedure was not met.

      .On original submission Jewell was reversed, but on rehearing the State’s motion was granted and the judgment affirmed.

      .See the majority’s interpretation of Article 26.13, V.A.C.C.P., both before and after its recent amendments.

      .See and cf. Article 40.09, § 9, V.A.C.C.P.

      . There may well be some question whether the court could legally instruct the clerk to do this. See Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144 (1956); Ortiz v. State, 121 Tex.Cr.R. 438, 53 S.W.2d 58 (1932).

      . While it is proper to charge on provoking the difficulty where raised by the evidence, Garcia v. State, 522 S.W.2d 203, 206 (Tex.Cr.App.1975), and cases there cited, every trial judge of any experience knows that submitting such a charge to a jury is fraught with difficulty and the chance of error is great. If the charge is to be given, care and caution must be taken to ensure that the charge correctly states the law and applies that law to the facts. For a charge on provoking the difficulty see McClung, Jury Charges for Texas Criminal Practice, Rev.Ed. 1979, p. 15, a charge approved in Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806, 808 (1938). See also Cain v. State, 226 S.W.2d 640, 642 (Tex.Cr.App.1950); Garcia v. State, supra; Smith v. State, 411 S.W.2d 548 (Tex.Cr.App.1967).

      . This is a most reasonable rule of law. If a conflict is presented, the jury may decide the conflict without a “provokings” charge, if the appellant is the attacker, he is guilty; if the appellant was attacked, he has available the self-defense theory.


author: PHILLIPS, Judge.

text:
    Joe RUIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 55691.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Feb. 21, 1979.
    Rehearing En Banc Denied April 25, 1979.
    Michael Anthony Maness and Ernesto Valdes, Houston, for appellant.

      Carol S. Vance, Dist. Atty., James C. Brough and Stu Stewart, Asst: Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for capital murder. The court, after the jury responded negatively to the second special issue presented under Article 37.071(b)(2), V.A.C.G.P., assessed the penalty at life imprisonment. See Article 37.071(e), V.A.C. C.P.

The evidence presented by the State in its case in chief showed clearly that the appellant, accompanied by two other individuals, entered the Crescent Food Market in Houston on June 22, 1974, at approximately 5 p. m., armed with handguns. One of the employees working in the rear area of the store testified that the appellant approached him with a drawn handgun and ordered him to the front of the store and to lie down. The appellant then took this employee’s wristwateh and wallet. He identified a photograph of the appellant taken the following day as being representative of how the appellant appeared on the day of the offense. He testified that the appellant had a moustache, khaki pants, and a red shirt on at the time. He also identified two other photographs as representing the other two individuals who accompanied the appellant. After lying on the ground, the witness was stomped on the back of the head several times and did not observe any other incidents. Immediately following his hearing someone state, “No, you cannot have that. That is mine,” he heard two shots. After inquiring and determining the robbers had left, the witness raised himself and discovered that the son of the owner had been shot in the right shoulder and a customer had been shot and killed in the store.

A cashier at the store during the time of the robbery testified that she noticed one of appellant’s companions near the front door with a gun and as she turned around the other companion was in front of her with a gun. Immediately previous to this confrontation she observed the appellant go to the rear through a nearby aisle. She testified that the appellant came to the front of the store and took the bag with the money in it, but that she did not see both his hands and did not see any weapon at that time held by the appellant.

A second cashier at the food market testified that she was in another counter area with the son of the owner who was subsequently shot. One of the appellant’s companions stood before them with a gun and ordered them to get down. This cashier did not see anyone other than this one robber and kept her head down throughout the incident.

The stockboy who was in the counter area with the second cashier testified that he was also ordered to get down on the floor, but looked up as the three robbers were leaving. He was told to get down and was then shot. He testified that he described his assailant as “kind of fat” with medium length hair, long sideburns and “possibly a moustache.” He could not remember the color of the clothing worn by the assailant.

Police photographs taken the day following this incident of the three participants reflect that the appellant is the only individual with a moustache.

After the State and the defense stipulated that the weapon introduced into evidence as State’s Exhibit No. 7 was the same weapon used in the robbery of the Crescent Food Market, used to kill the victim during the robbery, and recovered the next day from one of the participants in the robbery, direct testimony was adduced relating to the arrest of the individual from whom State’s Exhibit No. 7, the murder weapon, was recovered. The owner of Early Roberts Famous Foods all night cafe testified that at approximately 3 a. m. oh June 23, 1974, a buzzer rang in his office which indicated a robbery was in progress. As he exited his office he observed a plainclothed, off-duty police officer holding the robber up by the wall. It was at this time that State’s Exhibit No. 7 was seized from Ber-nadino Sierra, Jr., one of the three participants in the robbery of the Crescent Food Market.

Three police officers then testified to the recovery of State’s Exhibit No. 8, a .22 caliber pistol, which appeared similar to that used during the robbery of the Crescent Food Market by one of the participants, and State’s Exhibit No. 11, a wristwatch taken off the employee of the Crescent Food Market during the robbery. It was shown that these items of evidence were obtained by a cellmate of the three participants in the Crescent Food Market robbery from the Vargas household at 515 Wichmann.

The State then introduced evidence of two extraneous aggravated robberies committed prior to the arrest of Sierra referred to above. The first of these was committed at a Stop and Go convenience store between 2 and 2:15 a. m. when a man wielding a gun, identified as the appellant, ran into the store and announced that it was a holdup. He ordered the cashier to open the register and back up. The cashier testified that the appellant pushed him, tried to strike him on the head with his pistol and tried to knee him in the groin. He was then ordered into the back room to open a safe which he could not open and was then forced into the walk-in cooler of the store and to lie down on the floor with other customers. The witness testified that the appellant carried a long-barrel revolver similar to State’s Exhibit No. 8. He identified the other male individual as Bernadino Sierra, Jr. A customer in the store at' the time of the robbery testified and corroborated the cashier’s testimony-

Testimony was then adduced that at approximately 2:20 a. m. the appellant approached two customers as they were beginning to enter a U-totem store, wielding a gun and ordering them inside. The appellant was accompanied again by an individual identified as Bernadino Sierra, Jr. The appellant was wielding a long-barrel pistol, while Sierra was holding a snub-nosed pistol similar in characteristics to a .38 caliber. The witness was ordered to the floor and his wallet was taken.

A third extraneous offense was admitted into evidence. Guadalupe Garza testified that on May 28, 1974, she approached a young Latin American male, later determined to be Gilbert Moreno, in a Houston lounge and requested a ride home. Moreno agreed and drove Ms. Garza and her companion, Bernadino Sierra, Jr., to a location designated by Sierra on Brady Street. When they arrived at the Brady Street residence, Moreno was invited in by Sierra to drink some beer. The three entered the apartment and Ms. Garza and Moreno began talking on the living room couch while Sierra entered the bedroom. Shortly afterward, the appellant and one or two other individuals arrived at the apartment and entered the bedroom. Sierra then asked Moreno to come into the bedroom, at which time the witness heard a scuffle and a plea from Moreno telling the others to take his money but leave him alone. Ms. Garza entered the room and observed the other individuals present beating Moreno with their fists, feet, and a chair. She testified that she only saw the appellant strike Moreno with his fists. At this time the witness was given a knife and told to cut Moreno on the back. The men then took Moreno to his car and placed him in it. Sierra and Ms. Garza then departed with the unconscious and immobile Moreno to a dirt road area where Sierra took Moreno out of the car and placed him in front of the car. Sierra then drove the vehicle back and forth over the victim approximately three times. Sierra and the witness then went to a lounge in Houston and met the appellant and the others. The group then drove to Galveston and back to Houston where they ran out of gas and abandoned Moreno's vehicle.

All three extraneous offenses were admitted over timely objection by the defense. The State argued that the evidence on the extraneous offenses was admissible because their evidence on the substantive offense was equivocal as to the specific intent of the conspirators to commit murder and the extraneous offenses were relevant to show common design, scheme, and conspiracy. It was also argued that the extraneous offenses were relevant to the question of whether the appellant, as a co-conspirator in the execution of the aggravated robbery, should have anticipated that someone would have been killed as a result of carrying out the conspiracy to commit aggravated robbery. The State’s position with regard to the prior extraneous offense of murder and its admissibility before the jury was that by showing the appellant to have been involved in a prior, violent, homicidal episode with Bernadino Sierra, Jr., one of the co-conspirators in the aggravated robbery, the appellant should have anticipated that Joseph Picinich or some other individual might have been killed in the course of committing that aggravated robbery.

The essential elements of the offense appellant was charged with and the theory on which the prosecution proceeded are (1) the appellant conspired with others to commit an aggravated robbery and (2) one of the co-conspirators (3) intentionally or knowingly (4) caused the death of an individual (5) in the course of committing or attempting to commit the aggravated robbery (6) in furtherance of the unlawful purpose of the conspiracy and (7) which should have been anticipated as a result of carrying out the conspiracy.

The evidence adduced from the employees and customers of the Crescent Food Market on the day of the offense indisputably disclosed that the appellant, acting in concert with two other identified individuals and brandishing a deadly weapon per se, committed aggravated robbery during which an individual was killed with a deadly weapon. V.T.C.A., Penal Code, Section 7.02(b), eliminates any necessity on the part of the State to prove the appellant had any intent to kill Picinich. The evidence adduced from these witnesses would permit any jury to infer that the aggravated robbery was committed as a result of a conspiracy and that a murder should have been anticipated in the carrying out of the conspiracy to commit aggravated robbery.

Without addressing the question of whether the two subsequent extraneous aggravated robberies were admissible to show a conspiracy between the appellant and at least one of the other individuals involved in the aggravated robbery at the Crescent Food Market, we turn to appellant’s second ground of error which challenges the introduction of the prior extraneous murder into evidence.

As stated in Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, the first order of inquiry in determining whether any evidence is admissible is a comparison of the probative value and the prejudicial or inflammatory aspects of the evidence, if any. In determining the admissibility of extraneous offenses, the court must look to the “evidence which the State has to offer in proof of the essential elements of its case.” Id. at 101. When the element the State bears the burden of proof on can “be inferred from the act itself” (Id. at 101), the State may not use extraneous offenses as circumstantial evidence of that element in its case in chief. Finally, the decision whether the introduction of an extraneous offense into evidence is reversible error is an ad hoc determination based on the merits of each case.

The inflammatory aspects of the murder testified to are great indeed. The facts showed a brutal beating in which the appellant was involved, as well as subsequent brutality against the victim by one of the co-conspirators in the aggravated robbery at the Crescent Food Market, outside the presence of the appellant. The dissimilarity in the modus operandi between the killing of Gilbert Moreno and Joseph Pici-nich detracts from its probative value on whether an individual present at a brutal beating should anticipate that one of his cohorts would shoot and kill another individual in the course of an aggravated robbery. The overall effect of the testimony concerning the murder of Gilbert Moreno goes more to show the appellant to be a brutal criminal in general. This is precisely the reason the general rule against the introduction of extraneous offenses was created. See Rodriguez v. State, Tex.Cr.App., 486 S.W.2d 355; Ford v. State, Tex.Cr.App., 484 S.W.2d 727; Jones v. State, Tex.Cr.App., 481 S.W.2d 900; Jones v. State, Tex.Cr.App., 479 S.W.2d 307; Powell v. State, Tex.Cr.App., 478 S.W.2d 95; Albrecht v. State, supra.

We conclude that the direct evidence of the appellant’s participating in an aggravated robbery in concert with other individuals while brandishing a per se deadly weapon was uncontroverted direct evidence on the element of anticipation. There being no disputed or contested factual issue to which the prior extraneous murder offense was relevant, material, and admissible, the trial court reversibly erred in admitting this inherently prejudicial and inflammatory evidence before the jury at the guilt and innocence stage of this trial. The trial court’s instruction to the jury in its charge limiting their consideration of the extraneous offenses to the essential elements of whether the murder was committed in furtherance of the unlawful purpose of the conspiracy or that the murder should have been anticipated as a result of carrying out the conspiracy did not cure the error. See Walls v. State, Tex.Cr.App., 548 S.W.2d 38. We cannot conclude that the evidence of this brutal prior murder did not affect the jury’s determination of guilt or innocence.

In light of our disposition of appellant’s second ground of error, we decline to address the other grounds of error raised.

The judgment of conviction is reversed and the cause remanded.

      . The State maintained throughout the course of this trial that they were prosecuting the appellant as a party to the offense of capital murder under the theory expressed in V.T.C.A., Penal Code, Section 7.02(b), which reads as follows:
      (b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of. the conspiracy.
      This was the theory of prosecution notwithstanding the allegation in the indictment which reads:
      . JOE RUIZ . . ., heretofore on or about June 22, 1974, did then and there unlawfully intentionally cause the death of Joseph Picinich, hereafter called the deceased, by shooting him with a gun and that the said Defendant was then and there in the course of committing and attempting to commit aggravated robbery.


author: DALLY, Judge.

text:
    Ex parte Johnny R. YTUARTE.
    No. 57995.
    Court of Criminal Appeals of Texas, En Banc.
    March 7, 1979.
    Rehearing En Banc Denied April 25, 1979.
   OPINION

DALLY, Judge.

This is a post-conviction habeas corpus proceeding. See Art. 11.07, V.A.C.C.P.

The petitioner was convicted of the offense of burglary of a vehicle on July 8, 1977. Petitioner asserts that the judgment of conviction is void because he was not provided an examining trial as required by V.T.C.A. Family Code, Sec. 54.02(h) before the indictment was returned by the grand jury.

On May 6, 1977, the petitioner was, by the juvenile court, certified to be tried as an adult and the cause was transferred to the Criminal District Court of Jefferson County for trial. The petitioner was not granted an examining trial before the grand jury returned the indictment against him on June 2,1977. The petitioner did not waive an examining trial as provided in V.T.C.A. Family Code, Sec. 51.09(a). See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

A majority of this Court, with four judges dissenting, has held that absent a waiver made pursuant to V.T.C.A. Family Code, Sec. 51.09(a), the failure to afford a juvenile who has been certified as an adult an examining trial before he is indicted renders the indictment void. White v. State, 576 S.W.2d 843 (Tex.Cr.App. 2/7/79); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App. 2/7/79).

A void indictment may be successfully attacked in a collateral proceeding. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Under the authority of White v. State, supra, and Jones v. State, supra, the petitioner is entitled to the relief which he seeks. The judgment and conviction are set aside and the indictment is ordered dismissed. The cause is remanded to the District Court for proceedings not inconsistent with this opinion.

It is so ordered.


text:
    Ex parte Ismael JUAREZ, Jr.
    No. 58182.
    Court of Criminal Appeals of Texas, En Banc.
    March 7, 1979.
    Rehearing En Banc Denied April 25, 1979.
    Richard E. Wetzel, Rosharon, for appellant.
    Rick Hamby, Dist. Atty. and Don Richard, Asst. Dist. Atty., Big Spring, for the State.
   OPINION

DALLY, Judge.

This is a post-conviction habeas corpus proceeding. See Art. 11.07, V.A.C.C.P.

The petitioner was convicted of the offense of aggravated robbery on September 19, 1977. The petitioner asserts that the judgment of conviction is void because he was not afforded an examining trial as required by V.T.C.A. Family Code, Sec. 54.-02(h) before the indictment was returned by the grand jury.

On March 5, 1976, the 118th District Court of Howard County, sitting as a juvenile court, certified the petitioner, a juvenile, to be tried as an adult in the 118th District Court of Howard County. The appellant was not granted an examining trial before the grand jury returned the indictment against him on March 30, 1977. An examining trial was not waived as provided by V.T.C.A. Family Code, Sec. 51.09(a). See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

A majority of this Court, with four judges dissenting, has held that absent a waiver made pursuant to V.T.C.A. Family Code, Sec. 51.09(a), the failure to afford a juvenile who has been certified as an adult an examining trial before he is indicted renders the indictment void. White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979).

A void indictment may be successfully attacked in a collateral proceeding. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Under the authority of White v. State, supra, and Jones v. State, supra, the petitioner is entitled to the relief which he seeks. The judgment and sentence are set aside and the indictment is ordered dismissed. The cause is remanded to the 118th District Court of Howard County for proceedings not inconsistent with this opinion.

It is so ordered.


text:
    Ex parte Stanley GLOSTON.
    No. 58695.
    Court of Criminal Appeals of Texas, En Banc.
    March 7, 1979.
    Rehearing En Banc Denied April 25, 1979.
    Richard E. Wetzel (Texas Dept, of Corrections), Rosharon, for appellant.
    James S. McGrath, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, for the State.
   OPINION

DALLY, Judge.

This is a post-conviction habeas corpus proceeding. See Art. 11.07, V.A.C.C.P.

The petitioner was convicted of the offense of aggravated robbery on January 19, 1977. On appeal the judgment was affirmed in a per curiam opinion. Gloston v. State, 556 S.W.2d 834 (Tex.Cr.App.1977). The petitioner asserts .that the judgment of conviction is void because he was not provided an examining trial as required by V.T.C.A. Family Code, Sec. 54.02(h) before the indictment was returned by the grand jury.

On May 21, 1976, the 317th District Court of Jefferson County sitting as a juvenile court certified the petitioner, a juvenile, to be tried as an adult and transferred the cause to the Criminal District Court of Jefferson County for trial. The record does not show that the appellant was granted an examining trial before the grand jury returned the indictment against him on August 19, 1976, and the record does not show that an examining trial was waived pursuant to V.T.C.A. Family Code, Sec. 51.09(a). See Criss v. State, 563 S.W.2d 942 (Tex.Cr.App.1978).

A majority of this Court, with four judges dissenting, has held that absent a waiver made pursuant to V.T.C.A. Family Code, Sec. 51.09(a), the failure to afford a juvenile who has been certified as an adult an examining trial before he is indicted renders the indictment void. White v. State, 576 S.W.2d 843 (Tex.Cr.App.1979); Jones v. State, 576 S.W.2d 853 (Tex.Cr.App.1979).

A void indictment may be successfully attacked in a collateral proceeding. Ex parte Banks, 542 S.W.2d 183 (Tex.Cr.App.1976); Ex parte Jones, 542 S.W.2d 179 (Tex.Cr.App.1976); Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975).

Under the authority of White v. State, supra, and Jones v. State, supra, the appellant is entitled to the relief which he seeks. The judgment of conviction is set aside and the indictment is ordered dismissed. The cause is remanded to the trial court for proceedings not inconsistent with the opinion.

It is so ordered.