author: W. C. DAVIS, Judge.

text:
    Earnest Edward WELCH, Appellant, v. The STATE of Texas, Appellee.
    No. 57300.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 7, 1979.

      Maurice U. Westerfeld, Houston, for appellant.
    Carol S. Vance, Dist. Atty., J. Richard Trevathan and R. P. Cornelius, Asst. Dist. Attys., Houston, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

W. C. DAVIS, Judge.

Appeal is taken from a murder conviction where punishment was enhanced to life imprisonment. Five grounds of error, including sufficiency of the evidence are raised. We affirm.

In presenting its case, the State called ten witnesses, introduced several photographs, two pistols, and numerous other exhibits. This evidence, viewed favorably to the verdict, is sufficient to support appellant’s conviction. Valore v. State, 545 S.W.2d 477 (Tex.Cr.App.1977).

The record reflects that at approximately 8:30 a. m. on December 8, 1976, Mrs. E. Fugate was driving in the area of the deceased’s garage-shop. While in this area, she was passed by a wrecker truck that appeared to have a body suspended from the cable normally used to tow cars. Mrs. Fugate turned and followed the wrecker to where it parked on a dead end street adjacent to a bayou. There she observed that there was indeed a human body suspended by a cable from the “A-frame” part of the wrecker. She further testified that appellant was the driver and only person in the area surrounding the wrecker.

Seeking help, Mrs. Fugate drove to a nearby store and informed store employees of the events she had observed. One of the employees, Betty Salvato, accompanied Mrs. Fugate back to the wrecker. Both women observed appellant walking in the area of the wrecker. Ms. Salvato stated appellant was the only person in the area.

The police were notified and arrested appellant, still walking in the area. At the time of his arrest, appellant had in his possession a .38 caliber revolver with a spent cartridge case under the firing pin.

In addition to the testimony of Fugate and Salvato, the State called Virginia Richy, a former girl friend of appellant. She testified as to the existence of a debt owed appellant by deceased and a statement by appellant that he was going to collect the debt “no matter what.” She also testified that appellant lived in the garage-shop belonging to deceased.

Several Houston police officers testified, including Sgt. E. A. Silva and Officer D. C. Lohr, who arrested appellant and discovered the pistol in his pocket. Detective Kent and Officer Flowers testified as to collecting evidence and photographing the scenes. Their testimony was to the effect that upon arriving at the wrecker scene they found deceased suspended from the towing cable at the top of the wrecker’s “A-frame.” After photographing this scene, they went to the garage-shop of deceased and found blood stains, scrape marks, a spent bullet on the floor, and a .25 caliber pistol in a coat lying on the ground in front of the doors. Photographs were also made of the garage-shop.

Dr. Erickson, a pathologist, placed the time of death at between 6:30 and 8:30 a. m. on December 8, 1976. She further stated that death resulted from a gunshot which produced both entrance and exit wounds. These wounds had characteristics similar to other gunshot victims that had been shot with .38 caliber weapons.

A firearms identification expert, Charles Anderson, testified that the bullet found on the floor of the garage-shop was too mutilated for exact comparison to test projectiles fired through the pistol confiscated from appellant. However, Anderson did testify that the bullet was similar in size and composition to other bullets taken from appellant’s gun. Further, the bullet displayed characteristics similar to those found on the test bullets.

The case against appellant is a circumstantial one. The State showed both motive and opportunity in presenting its case. Appellant was the only person shown to be near the wrecker by the testimony of Fu-gate and Salvato. The cause of death was a gunshot wound, apparently inflicted by a .38 caliber weapon. Appellant possessed a .38 caliber weapon when arrested and a firearms expert was able to make several definitive comparisons between a bullet found on the floor of the shop and test projectiles fired from the appellant’s gun. This evidence, viewed in the light most favorable to the verdict, excludes all reasonable hypotheses except the guilt of appellant. The evidence is sufficient. Ground of error four is overruled.

In ground of error one, appellant complains of the admission of photographs showing the body of deceased suspended from the cable of the wrecker. Appellant claims that such photographs serve only to inflame the jurors’ minds and thus denied him a fair trial.

A photograph is merely a graphic portrayal of oral testimony. Sec. 214, McCormick’s Handbook on Evidence. Therefore, if a verbal description of the body and scene is admissible, then a photograph of the scene described is also admissible. Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). When particularly gruesome or horrible details are contained in the photograph which might inflame the jurors’ emotions, then the trial court in its discretion must determine if the photograph is of sufficient probative value to be admitted. Martin, supra.

Appellant argues that the photographs were inadmissible because they were not relevant to a disputed fact issue. Cavazos v. State, 365 S.W.2d 178 (Tex.Cr.App.1963); Alcorta v. State, 294 S.W.2d 112 (Tex.Cr.App.1956). This test for admissibility of photographs was overruled in Martin, supra. We follow Martin and hold that the photographs of deceased suspended from the towing cable of the wrecker were admissible.

In ground of error two, appellant complains of the admission of the written statement of Mrs. Fugate because all but one sentence of the statement had been blacked out. The record reflects no specific objection to the “blacking out” of all but one sentence of the statement. Without such objection, nothing is presented for review. Mayberry v. State, 532 S.W.2d 80 (Tex.Cr.App.1975); Allen v. State, 536 S.W.2d 364 (Tex.Cr.App.1976).

Ground of error three contains appellant’s complaint that the introduction of Fugate’s written statement was an improper attempt by the State to impeach its own witness. We cannot agree.

A witness testifies from present recollection what he remembers presently about the facts in the case. When that present recollection fails, the witness may refresh his memory by reviewing memorandum made when his memory was fresh. After reviewing the memorandum, the witness must testify either his memory is refreshed or his memory is not refreshed. If his memory is refreshed, the witness continues to testify and the memorandum is not received as evidence. However, if the witness states that his memory is not refreshed, but has identified the memorandum and guarantees the correctness, then the memorandum is admitted as past recollection recorded. Wood v. State, 511 S.W.2d 37 (Tex.Cr.App.1974).

Mrs. Fugate’s memory could not be refreshed by a review of her written statement. She could, however, identify her written statement and vouched for its correctness; therefore, the statement was admissible as Fugate’s past recollection. There was no effort by the State to impeach its own witness, merely a proper job of following the rules of evidence. Ground of error three is overruled.

In his final ground of error, appellant complains of the failure of the trial court to instruct the jury that they could consider Mrs. Fugate’s written statement for impeachment purposes only. Under our holding today, the statement was not used for impeachment and therefore could be considered for any purpose. Wood, supra. Further, appellant failed to request this charge, and thus waived this ground of error. Mott v. State, 543 S.W.2d 623 (Tex.Cr.App.1976).

Judgment is affirmed.

      . The area where the wrecker parked after being observed by Mrs. Fugate was labeled scene one. The shop of the deceased was labeled scene two.


source: Caselaw Access Project

author: CLINTON, Judge.

license: Public Domain

text:
    Charles Saldana ALDACO, Appellant, v. The STATE of Texas, Appellee.
    No. 57526.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 7, 1979.

      Roy T. Ahrens, Houston — on appeal only — for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Kenneth W. Sparks, Asst. Dist. Attys., Houston, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was convicted of aggravated robbery. The jury found him to be an habitual criminal, and punishment was assessed at life. Appellant raises five grounds of error, but the first ground is controlling.

The indictment in this cause alleged in pertinent part that on or about February 14, 1975, appellant did:

“while in the course of committing theft of money and food stamps, owned by Luz Marie Silva, hereafter styled the Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely a pistol.” (Emphasis added).

While the indictment charges threatening and placing the complainant in fear of serious bodily injury, the trial court instructed the jury as to both V.T.C.A. Penal Code, Sec. 29.03(a)(1) and (2), which includes causing serious bodily injury to another. Such a charge is fundamentally defective regardless of whether an objection to the charge was made. Moore v. State, 574 S.W.2d 553 (Tex.Cr.App.1978); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1971).

For this reason the judgment is reversed and the cause is remanded.

DALLY, J., concurs in result.

      . V.T.C.A. Penal Code, Sec. 29.03(a) provides:
      “A person commits an offense if he commits robbery as defined in Section 29.02 of this code, and he: (1) causes serious bodily injury to another; or (2) uses or exhibits a deadly weapon.”


author: DALLY, Judge.

text:
    Earthel B. HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 57531.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 7, 1979.

      Steven E. Halpin (court appointed on appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Lupe Salinas and Victor A. Driscoll, Asst. Dist. Attys., Houston, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of aggravated robbery; the punishment, enhanced by proof of two prior convictions, is imprisonment for life.

In this case, as in Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Gooden v. State, 576 S.W.2d 382 (1979) (Opinion on Appellant’s Motion for Rehearing), and a number of other recent decisions, the instructions submitted to the jury authorized conviction for the offense charged in the indictment, but also authorized conviction for the offense committed by means other than that charged in the indictment. This is error. In Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976), this was held to be error, but not to require reversal of the judgment. There were no objections at the time of trial to the erroneous instructions in the instant case. However, the majority of this Court has now held that it is fundamental error and that reversal is necessary even though no objection was made to the jury instructions in the trial court. Although the author of this opinion does not agree with the majority, see Gooden v. State, supra (Concurring Opinion on Appellant’s Motion for Rehearing) and Clements v. State, 576 S.W.2d 390 (1979), under the holdings of the majority the judgment must here be reversed.

The judgment is reversed and the cause remanded.


text:
    Louis WALKOVAK, Appellant, v. The STATE of Texas, Appellee.
    No. 60085.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Feb. 7, 1979.

      Davis W. Anderson, Marlin, for appellant.
    No appearance for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

DALLY, Judge.

This is an appeal from an order revoking probation. The appellant was convicted of the offense of arson on November 9, 1972. The punishment assessed was imprisonment for five years, probated.

On June 1, 1974, in its motion to revoke probation, the State alleged that the appellant had violated a condition of probation by failing to report a change of his residence. After a hearing, the court revoked probation on the ground alleged, and sentence was imposed on February 27, 1978.

The appellant asserts that the evidence fails to support the court’s order and that the court therefore abused its discretion in revoking probation. We agree.

Although the State had also alleged, in the motion to revoke, that the appellant had failed to report to his probation officer as he was required to do under the terms of probation, the court failed to find that appellant had violated the conditions of probation in that respect. The State did not allege that the appellant had not remained in Falls County, apparently because the conditions of probation imposed the ambiguous condition that the appellant “remain within a specified place.”

The record shows that the appellant’s residence when he was granted probation was 804 Liveoak, Marlin, but there is no testimony that he did not reside there at the time of the revocation hearing or in the intervening time. The sheriff of Falls County testified that he had received information through both the State and National Crime Information Centers that the appellant had been in Colorado, Nevada, Maryland, Kentucky and California. The sheriff also testified that he had brought the appellant as a prisoner to Falls County from California. The time of the appellant’s return from California is not in evidence except that it was sometime after the motion to revoke probation had been filed.

Betty Jane Cohn, who became the Falls County Adult Probation Officer on August 1,1976, after the appellant had been granted probation, testified that she did not know the appellant and had, before the hearing to revoke, never seen the appellant. From the probation records, the officer testified that the appellant had contacted her office two times by mail to pay probation fees. Two envelopes, one bearing the return address of L. T. Walkovak and the other the return address of Louis Walko-vak, 11701 Jefferson Highway, Chester, Virginia, were admitted in evidence. One was postmarked August 3, 1974, and the other December 14, 1973. However, the cancellation stamps on both envelopes show they were mailed from places in Texas. Also admitted in evidence were two letters with date stamps of June 4, 1973, and March 20, 1974. Both letters, which were from the former probation officer, were addressed to Mr. Louis T. Walkovak, 11701 Jefferson Davis Highway, Chester, Virginia, 23831. They were returned with a notation “Moved.”

Although the probation files reflect that other efforts had been made to contact the appellant, there is no evidence that he was not a resident in Falls County at the address which was stated on the conditions of probation when probation was granted. Although it would appear that there was ample evidence available to prove that appellant had violated conditions of probation, there is no evidence that he breached the condition which the court found had been breached. In Whitney v. State, 472 S.W.2d 524 (Tex.Cr.App.1971), a similar case, we held that the evidence failed to show that the probationer had changed his residence. We there said:

“‘Residence' is an elastic term. The meaning that must be given to it depends upon the circumstances surrounding the person involved and largely depends upon the present intention of the individual. Mills v. Bartlett, 377 S.W.2d 636 (Tex.1964). Neither bodily presence alone nor intention alone will suffice to create the residence, but when the two coincide, at that moment the residence is fixed and determined. Mills v. Bartlett, supra.
“In the instant case, the bodily presence of appellant in Florida is undisputed. It is also clear that he intended to seek employment there. However, the evidence is not clear that he made Florida his residence.”

Since the evidence is insufficient to show by a preponderance of the evidence that the appellant had changed his residence and failed to notify the probation officer, the judgment must be reversed.

The judgment is reversed and the cause is remanded.


author: TOM G. DAVIS, Judge.

text:
    Ricky Lynn HUFF, Appellant, v. The STATE of Texas, Appellee.
    No. 56093.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Feb. 14, 1979.
    Rehearing En Banc Denied March 21, 1979.
    Charles T. Pritchard, Jr. and Jack K. Allen, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Charles C. Cate, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for murder. Punishment was assessed at twenty years.

Appellant contends that the trial court erred in allowing the prosecutor to use grand jury testimony during cross-examination of his wife.

The evidence is uncontradicted that the appellant shot the deceased on a grocery store parking lot in Houston on July 11, 1975. Appellant’s wife testified that this shooting was the conclusion of a chain of events starting six weeks earlier.

Mrs. Huff testified that in early May, 1975, the deceased had followed her around the grocery store while she shopped and later followed her to her home. Even after she had gone into her residence, the deceased continued to drive back and forth in front of her home. She testified that similar conduct by the deceased had occurred on some five other occasions.

On July 11, 1975, Mrs. Huff, with her two-year-old child and accompanied by her friend Dianne Wittsche, was again followed by the deceased from the store to her home. Mrs. Huff testified that as she exited her friend’s car the deceased grabbed her and told her to come with him. Mrs. Huff screamed and her friend honked the horn of the car in an attempt to attract the attention of the appellant, who was in the house.

The appellant testified that when he realized his wife was in distress he armed himself and went outside. The deceased was no longer present, but appellant’s wife explained what had occurred. According to the appellant’s and his wife’s testimony, the deceased then again passed the house. Mrs. Huff identified the deceased as the man who had followed her. The appellant testified that he attempted to pursue the deceased in Wittsche’s car, but was thwarted when the car would not start because of the seat belt interlock system. After some confusion and discussion, the appellant, his wife and child, with Wittsche driving, left in belated pursuit of the deceased. The stated reason for this pursuit was to return to the parking lot, hoping that the deceased had done the same, in order to get his car’s license number. The gun was in the car, placed in the passenger’s seat during the appellant’s attempt to start the car.

The foursome reached the lot to find the deceased standing beside his car. Wittsche stopped her car beside the deceased’s car. The relative location of the two cars and other buildings and objects was painstakingly diagrammed by each witness present when the shooting took place. These diagrams were not preserved and included in the record, thus these locations remain unclear to this Court. Nevertheless, the testimony is clear that the appellant got out of the car, confronted the deceased, and shot him twice.

The appellant testified that the deceased denied following his wife, and then threatened to kill the appellant. At this time Wittsche started forward in her car and the appellant grabbed his gun just as the car went out of his reach. Appellant testified that he entered the deceased’s car on the passenger side, struck the deceased with the pistol, and that the gun discharged during this scuffle. Appellant stated that he got out of the car and saw the deceased get out on the other side. Thinking that the deceased was about to retaliate, the appellant testified that he again shot the deceased.

Other witnesses present in the lot gave testimony conflicting with the appellant’s account of the shooting. A witness sitting in his truck waiting on members of his family testified that he first saw the appellant walk around his truck and then heard two shots. This witness also testified that he heard no verbal confrontation. Police who investigated the shooting testified that the body was found beside the rear fender of the deceased’s car. Investigating officers also stated that no blood or tissue was present in the car and that the passenger side door was locked, thus contradicting the appellant’s version of the shooting.

The appellant then got back in Wittsche’s car and left the scene. He turned himself in to the police the next morning.

The manager of the grocery store testified that a month prior to the shooting the appellant’s wife had complained about a man following her from the store. Another employee present at that time confirmed his story.

The wife’s testimony was material to appellant’s claim of self-defense, not only to show the prior conduct of the deceased toward her but also to corroborate the statement that the deceased had threatened to kill appellant. The prosecutor cross-examined her extensively on her prior testimony to the grand jury. This cross-examination centered around the occasions when the deceased had followed her and her testimony regarding the fatal night. The following excerpt was typical of the prosecutor’s use of the prior testimony:

“Q. Again, referring to State’s Exhibit 4 [grand jury testimony], Mrs. Huff, referring to Ricky now, did you hear Ricky say anything at that time after the first shot?
“A. No.
“MR. PRITCHARD [defense attorney]: Same objection, Your Honor.
“THE COURT: Same ruling.
“MR. PRITCHARD: Note my exception.
“Q. ‘Did you hear him say anything to the man after the second shot?’
Answer: ‘No, I didn’t hear him say nothing.’
Question: ‘What did he say to you when he got in the car?’
Answer: ‘He just told Dianne, “Go.” He didn’t say nothing to me until we got — I don’t remember nothing.’
Do you remember saying that to the Grand Jury?
“A. I don’t remember anything in the Grand Jury. It has been a year ago and I just don’t know. That man could have gotten me to say anything, because every time I opened my mouth, he was just screaming and hollering at me.”

Other portions of the grand jury testimony read to the jury during this cross-examination concerned the first time the deceased followed the witness home, the route she took to and from the store, her report of the incidents to the store manager, the days of the week that she went to the store, the events on the parking lot on the fatal night, and what she heard during the events on the parking lot.

Appellant contends that the prosecutor’s reading of the prior grand jury testimony was improper as he failed to lay the proper predicate for this impeachment. Defense counsel objected to the prosecutor’s reading of the prior testimony to the jury and objected to its use as hearsay. Defense counsel continued to object throughout the cross-examination, finally requesting a running objection. All of his objections and requests were overruled. The objections, as shown above, finally evolved into a “same objection,” followed by the trial court’s “same ruling.”

The proper predicate for impeachment by prior inconsistent statement requires that the witness first be asked if he made the contradictory statement at a certain place and time, and to a certain person. Ellingsworth v. State, Tex.Cr.App., 487 S.W.2d 108; Huffman v. State, Tex.Cr. App., 479 S.W.2d 62. If the witness denies making the contradicting statement, it can then be proved by the prior inconsistent statement. Ellingsworth v. State, supra; Thrash v. State, Tex.Cr.App., 500 S.W.2d 834. If the witness admits the prior inconsistent statement, however, the prior statement is not admissible. Wood v. State, Tex.Cr.App., 511 S.W.2d 37.

During the lengthy cross-examination of appellant’s wife, the prosecutor repeatedly failed to elicit a denial of the prior statement from the witness before reading the grand jury testimony. Often the prior testimony read by the prosecutor was consistent with the witness’ testimony at trial. On at least 14 occasions, much as in the example above, the prosecutor read the testimony to the witness and asked if she remembered making the statement, without first eliciting a denial of the prior statement. This use interjected into evidence a large portion of the grand jury testimony that was inadmissible. When an instrument is read (into the record), it is introduced just as if the prosecutor had the instrument marked and introduced into evidence as an exhibit. Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199 (1961); Hellman v. State, 103 Tex.Cr.R. 603, 281 S.W. 874 (1926). See also Harden v. State, 417 S.W.2d 170, 174 (Tex.Cr.App.1967); Richardson v. State, 475 S.W.2d 932, 933 (Tex.Cr.App.1972); Killion v. State, 503 S.W.2d 765 (Tex.Cr.App.1973), and cases there cited. Newbern v. Spiro, 387 S.W.2d 769, 770 (Dallas Ct. of Civil Appeals, 1965).

We hold that the prosecutor’s reading of the grand jury testimony was improper impeachment as he failed to lay the proper predicate. Considering the importance of the wife’s testimony to the appellant’s defense, we cannot say that this impeachment was harmless. We hold that allowing the prosecutor to proceed in this use of the grand jury testimony over appellant’s repeated objection constitutes reversible error.

In the event of a retrial of this cause, we express concern regarding other issues raised in this trial. First, in Roberts v. State, 162 Tex.Cr.R. 41, 280 S.W.2d 285, this Court held that the State could not compel the defendant’s wife to testify in front of the grand jury and then use that testimony to impeach her when she is a witness on behalf of her husband.

We also note that the prosecutor stated to appellant’s wife during cross-examination that she had been offered a polygraph test. This Court’s prior decisions regarding polygraph tests render such practice highly suspect. Romero v. State, Tex.Cr.App., 493 S.W.2d 206; Lewis v. State, Tex.Cr.App., 500 S.W.2d 167; King v. State, Tex.Cr.App., 511 S.W.2d 32; Reed v. State, Tex.Cr.App., 522 S.W.2d 466; Leach v. State, Tex.Cr.App., 548 S.W.2d 383; Robinson v. State, Tex.Cr.App., 550 S.W.2d 54.

The judgment is reversed and the cause remanded.

      . While the grand jury testimony was marked as State’s Exhibit # 4, it was never admitted into evidence but is included in the record before us.


author: PHILLIPS, Judge.

text:
    Robert Lee BOLTON, Appellant, v. The STATE of Texas, Appellee.
    No. 56289.
    Court of Criminal Appeals of Texas, Panel No. 1.
    March 7, 1979.
    Ray A. Bass, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Gerald Flatten, Asst. Dist. Attys., Houston, for the State.
    Before ONION, P. J., and PHILLIPS and TOM G. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. Upon a finding that the two allegations of prior final convictions were true, the penalty was assessed at life imprisonment.

At the outset we note fundamental error in the court’s charge to the jury wherein it applies the law of the State to the facts of this cause. Omitting the formal parts, the indictment in the instant cause reads:

. . . ROBERT LEE BOLTON . . , heretofore on or about January 19, 1975, did then and there unlawfully while in the course of committing theft of money, one watch and one television owned by Floyd E. West, hereafter styled the Complainant, and with intent to obtain and maintain control of the property intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely a pistol.

In applying the law to the facts in this cause, the trial court instructed the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt, that on or about the 19th day of January, 1975 in Harris County, Texas, the defendant, Robert Lee Bolton, did, without the effective consent of Floyd E. West, the owner, take and exercise control over the corporeal personal property of Floyd E. West, to wit, money or one watch or one television, from the possession of Floyd E. West, with intent then and there to deprive Floyd E. West of said money or one watch or one television, and that said defendant, in so doing, and with intent to acquire and maintain control of said money or one watch or one television, intentionally, knowingly, or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Floyd E. West or the defendant used or exhibited a deadly weapon, to wit, a pistol, then you will find the defendant guilty of aggravated robbery as charged in the indictment.
(Emphasis added)

The provision of this alternative theory of culpability in the court’s charge when not expressly alleged in the indictment has consistently been considered fundamental error, calculated to injure the rights of defendants and reviewable in the interest of justice by this Court. See Articles 36.19 and 40.09(13), V.A.C.C.P.; Gooden v. State, 140 Tex.Cr.R. 347 and 351, 145 S.W.2d 177 and 179; Morter v. State, Tex.Cr.App., 551 S.W.2d 715; Davis v. State, Tex.Cr.App., 557 S.W.2d 303; Edmond v. State, Tex.Cr. App., 566 S.W.2d 609; Jones v. State, Tex. Cr.App., 566 S.W.2d 939. There are also numerous recent unpublished cases to the same effect.

In light of the error noted above, the judgment of conviction is reversed and the cause remanded.


author: DIES, Chief Justice.

text:
    BERGER ENGINEERING CO., Appellant, v. VILLAGE CASUALS, INC., Appellee.
    No. 8161.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 14, 1978.

      W. Mike Baggett, Dallas, for appellant.
    Emerson Banack, Jr., San Antonio, for appellee.
   DIES, Chief Justice.

On June 1, 1976, Village Casuals, Inc., defendant below, and appellee here, contracted with Charles C. Madden (contractor) to construct the interior of its San Antonio Windsor Park Mall store for. the contract price of $91,160 and the interior of its Houston Greenspoint Shopping Mall store for the contract price of $82,823. In turn, Madden executed subcontracts with plaintiff below, Berger Engineering Co., for the air conditioning and heating supply and installation for the San Antonio store for $12,420 and for the Houston store for $9,890.

Plaintiff is still owed $14,425 for this work but failed to timely file a builder’s and mechanic’s lien against defendant pursuant to Tex.Rev.Civ.Stat.Ann. art. 5452 (Vernon Supp.1978). Contractor is in bankruptcy, and defendant has withheld some $83,000 from contract price it owes contractor.

On April 28, 1977, plaintiff sent defendant a demand letter, threatening to také out the equipment it had installed if it was not paid. Defendant filed a petition for a temporary restraining order to prevent plaintiff from carrying out its threats. Plaintiff answered and filed a counterclaim for recovery of the amounts owed it.

Trial was to a jury, and, after plaintiff presented his evidence, defendant moved for a directed verdict denying all of plaintiff’s affirmative causes of action and requesting a permanent injunction to prevent plaintiff from removing the equipment. The court granted this request from which plaintiff brings this appeal.

This directed verdict is proper only if there is no evidence to support the submission of a necessary issue, and on appeal we must indulge every inference that may be properly drawn from the evidence against the action of the trial court. Echols v. Wells, 510 S.W.2d 916 (Tex.1974); Anderson v. Moore, 448 S.W.2d 105 (Tex.1969).

In its first two points of error, plaintiff contends that a trust fund is established by Tex.Rev.Civ.Stat.Ann. art. 5472e (Vernon Supp.1978) on the money owed the contractor by defendant. This statute provides an additional security in favor of laborers and material men under the existing lien laws. Panhandle Bank & Trust Co. v. Graybar Electric Co., Inc., 492 S.W.2d 76, 81-82 (Tex.Civ.App.—Amarillo 1973, writ ref’d n. r. e.). The statute provides (in part):

“Section 1. All moneys or funds paid to a contractor . . . under a construction contract for the improvement of specific real property in this state, and all funds borrowed by a contractor . for the purpose of improving such real property which are secured in whole or in part by a lien on the specific property to be improved are hereby declared to be Trust Funds for the benefit of the . subcontractor. . . ” etc.

Plaintiff did not prove that either of these conditions existed (i. e. funds paid to contractor; or borrowed money secured by a lien on the specific property); hence the directed verdict as far as this statute is concerned is proper. See Bank of North Texas v. Red Henry Printing Co., 509 S.W.2d 444, 448 (Tex.Civ.App.—

Plaintiff insists the following excised part of the statute makes defendant trustee of the funds owed the contractor. “The . . owner, receiving such payments or funds, or having control or direction of same, is hereby made . a Trustee of such funds. . . .” The answer to this is “such payments or funds” refers to those stipulated in the first part of article 5472e, i. e. paid contractor, or borrowed by owner giving a lien on the specific property.

Plaintiff cites us Owens v. Drywall and Acoustical Supply Corp., 325 F.Supp. 397 (S.D.Tex.1971). This case is distinguishable for it involved funds that had been paid to the IRS pursuant to a tax lien against a contractor. Further, there the court compared a New York statute which specifically stated:

“For the purpose of a civil action only, the trust funds shall include the right of action upon an obligation for moneys due or to become due to a contractor, as well as moneys actually received by him.”

See Terns v. Whispell, 227 F.Supp. 498, 501 (S.D.N.Y.1964). These points are overruled.

Plaintiff’s next two points of error assert that he was entitled to recovery under quantum meruit. Quantum meruit, or unjust enrichment, is a proceeding independent of a contract. Childress v. Smith, 90 Tex. 610, 40 S.W. 389, 391 (1897). And the right is based on an implied contract to pay for benefits accepted and received. City of Sherman v. Conner, 88 Tex. 35, 29 S.W. 1053, 1055 (1895); Humphrey v. Placid Oil Co., 142 F.Supp. 246 (E.D.Tex.1956), aff’d 244 F.2d 184 (5th Cir. 1957). See also Davidson v. Clearman, 391 S.W.2d 48, 50 (Tex.1965) and authorities there cited.

But, there must exist between the parties an implication that the party performing the services would be paid by the party accepting and benefiting by them. Crockett v. Sampson, 439 S.W.2d 355, 358 (Tex.Civ.App.—Austin 1969, no writ); Crockett v. Brady, 455 S.W.2d 807 (Tex.Civ.App.—Austin 1970, no writ).

Plaintiffs president testified there was never any agreement that plaintiff would be paid by defendant; that no one from defendant ever promised to pay for the work; and that “[t]he understanding is Mr. Madden [the contractor] get[s] paid, we get paid. And that’s common in the construction industry.”

These points are overruled.

Plaintiff’s next points urge that it has a lien by virtue of Tex.Const. art. XVI, § 37, which follows:

“Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.”

The Texas Supreme Court in Da-Col Paint Manufacturing Co. v. American Indemnity Co., 517 S.W.2d 270, 273 (Tex.1974) held:

“Whether one is considered an original contractor or a subcontractor is of fundamental importance. A subcontractor does not have a constitutional lien.” (Citing authorities)

Plaintiff’s next point urges it has a common-law lien, which should have been submitted to the jury. Since this was not plead or raised in the trial court, we may not consider it here. See Tex.R.Civ.P. 279. This point is overruled.

Plaintiff urges it presented a fact issue of acquiring a lien under Tex.Rev.Civ. Stat.Ann. art. 5454 (Vernon Supp.1978). The time allowed for perfecting a subcontractor’s lien is ninety days after the date the indebtedness accrues, Tex.Rev. Civ.Stat. Ann. art. 5453 (Vernon Supp.1978), which plaintiff did not observe. This point is overruled.

Our holding on the above points of error makes it unnecessary for us to consider plaintiff’s last two points, and they are accordingly overruled.

The judgment of the trial court is affirmed.

AFFIRMED.


author: CLAYTON, Justice.

text:
    Jack N. SPROTT, Appellant, v. Catherine Louise SPROTT, Appellee.
    No. 8129.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 23, 1978.
    Rehearing Denied Jan. 18, 1979.
    Philip C. Friday, Austin, for appellant.
    George E. Ramsey, III, Austin, for appel-lee.
   CLAYTON, Justice.

This appeal concerns the nature of military retirement benefits of an enlisted man in the United States Naval Fleet Reserve. Appellee brought this divorce action against her husband, appellant, seeking a divorce, child conservatorship, and division of the community property. The case was tried before the court, without a jury, and judgment was entered in favor of appellee wherein she was awarded a certain interest in appellant’s retirement benefits and a certain interest in appellant’s retainer pay, and awarding appellee her proportionate interest in future cost of living increases in appellant’s retainer and retirement pay paid by the U.S. government.

Appellant does not appeal from the trial court’s fractional interest (264/289 for retainer pay and 281/360 for retirement pay), nor from the amount of such interest (60%), but challenges the trial court’s findings that (1) appellant’s retainer pay is community property, and is subject to division between the parties and that (2) future cost-of-living increases in appellant’s Naval retainer and retirement pay are community property.

The trial court made findings of fact and conclusions of law, embodied within the judgment, as follows:

1. Appellant served on active duty with the United States Navy from September 1951 through September 1975 for a period of 289 months.
2. The parties were married on October 3,1953, and divorced effective February 28, 1977, for a period of 281 months; and during the marriage, appellant served on active duty with the United States Navy for 264 months.
3. In September 1975 appellant was transferred from active duty to the Fleet Reserve; appellant will remain in the Fleet Reserve until September 1981, at which time he will be retired.
4. During appellant’s service in the Fleet Reserve, he has received, and will continue to receive, retainer pay, which amounts to $786.53 gross per month.
5. Appellant will be eligible for retirement pay upon his retirement in September 1981.
6. Appellant’s retainer pay and his retirement pay are subject to cost-of-living increases payable by the United States Navy to appellant.

The trial court concluded, based upon the above findings that appellant’s “retainer pay is community property to the extent it was earned by [appellant] during the marriage, . . . that . . . [his] retirement pay is community property . and that cost-of-living increases accruing to [appellant’s] retainer and retirement pay in the future are community property.”

Judgment was entered in accordance with such findings of fact and conclusions of law, and awarded appellee, inter alia, as her sole and separate property 60 percent of the community interest in appellant’s retainer pay, if, as, and when received, including any future cost-of-living increases.

Appellant’s first point of error complains of error by the trial court in concluding appellant’s Naval retainer pay is community property, and awarding appellee an interest therein.

The question presented by this appeal has not been answered or decided by our Supreme Court. In Taggart v. Taggart, 540 S.W.2d 823 (Tex.Civ.App.—Corpus Christi 1976), the Court of Civil Appeals held that Naval retainer pay was not community property, but the Supreme Court in Taggart v. Taggart, 552 S.W.2d 422 (Tex.1977), reversed the Court of Civil Appeals’ decision on other grounds, and did not address the question of retainer pay, stating specifically that the wife “did not seek any part of the retainer pay that [husband] earned for his service in the Fleet Reserve.” The question of Naval retainer pay was involved in Ex parte Sutherland, 526 S.W.2d 536 (Tex.1975), wherein the trial court held that such retainer pay was community property. The Supreme Court did not decide the question, but its decision in that case was made upon other grounds. The Supreme Court, in the Sutherland case did state, however, “In this instance relator’s ‘right’ to future retainer pay constitutes, at least arguably, no less an earned property right than the disability retirement benefits in Busby v. Busby, Tex.Sup., 457 S.W.2d 551 [1970].” The Supreme Court further stated in the Sutherland case that “[w]e are not saying that the determination made by the court in the divorce suit is necessarily correct. See French v. French, 17 Cal.2d 775, 112 P.2d 235, 134 A.L.R. 366.”

Appellant does not challenge the trial court’s conclusion that his potential retirement pay is part of the community estate and subject to division, even though it has not matured. This question has been clearly determined in Cearley v. Cearley, 544 S.W.2d 661 (Tex.1976). The primary rationale is that retirement pay is deferred compensation for past services rendered and that the wife is entitled to share in the benefits paid referable to services rendered to the marriage.

When an enlisted man in the United States Navy has completed twenty or more years of active service, he may, at his request, be transferred to the Fleet Reserve. 10 U.S.C.A., Sec. 6330(b) (1959). When not on active duty, a member of the Fleet Reserve receives what is referred to by the statutes as “retainer pay.” 10 U.S.C.A., Sec. 6330(c) (1959).

An enlisted man must complete thirty years of service before he is eligible for retirement pay. 10 U.S.C.A., Sec. 6326 (1959). If he elects to transfer to the Fleet Reserve, he may be retired when the aggregate of his active service and Fleet Reserve service reaches thirty years. 10 U.S.C.A., Sec. 6331 (1959).

When appellant had completed 24 years and one month in the Regular Navy, during which time he was married for 22 years, he transferred to the Fleet Reserve and began receiving retainer pay. He served for a period of 17 months in the Fleet Reserve during which time he was married, and needed to serve an additional 54 months following the divorce to complete his 30 years in the Navy and permit him to be eligible for retirement.

As a member of the Reserve Fleet, appellant was not in a retired status but was subject to be called to active duty in time of war or national emergency. In time of peace he might be required to perform not more than two months active duty for training in every four-year period. 10 U.S.C.A., Sec. 6485 (1978). During the period of Fleet Reserve service or status, appellant received retainer pay as provided by 10 U.S.C.A., Sec. 6330(c) (1959).

Retirement benefits, even though unmatured, have been held to be community property subject to division on divorce, Cearley v. Cearley, supra, upon the primary rationale that retirement pay is deferred compensation for past services rendered. We hold retainer pay future or post-divorce received by a member of the Fleet Reserve is compensation for the demands the government makes upon the serviceman and is not payment for services which were entirely performed in the past. It could not be considered in any sense a form of retirement benefits.

Appellant has not retired; his retirement benefits have not matured and cannot be payable to him until 1981 at which time he will have completed thirty years of service in the Navy. The retainer pay must necessarily be for the beneficial benefits derived by the Navy. The United States Navy obviously derives an important benefit from maintaining the highly trained and experienced personnel of the Fleet Reserve. Therefore, we hold retainer pay is not compensation for past services rendered, but is compensation paid for the discharge of present obligations. As such, retainer pay is classed in the same category and with the same characteristic as salaries or wages, and is not considered as community property subject to division at the time of divorce.

Appellant’s second point complains of error of the trial court “in concluding that future cost-of-living increases in [his] retainer and retirement pay are community property, and in awarding [wife] an interest in such increases.” In view of our holding as to the retainer pay, it is not necessary to consider the cost-of-living increase to such pay. Pursuant to 10 U.S.C.A., Sec. 1401a, (1978), both retainer and retirement pay are subject to increase on a semi-annual basis in proportion to any increase in the Consumer Price Index. This is a matter of right governed by the foregoing statute. Neither party has cited any authority, and we have found none, determinative of this question. On the date of the divorce decree, the community property rights in and to the retirement benefits were fixed and appellee’s interest therein vested as her sole and separate property. Since the community interest in the retirement benefits has been apportioned upon divorce, the right to receive any subsequent cost-of-living increase in that apportioned interest would belong to each party in accordance with their respective interests in the retirement benefits. The interest apportioned to each party as to retirement benefits is the separate property of the respective parties, and there exists a vested interest to any incremental increases to the respective interest to such benefits of each party. We hold that the apportioned cost-of-living increases to that part of the retirement benefits awarded to appellee as her separate property was properly awarded to her by the trial court. This point is overruled.

The judgment of the trial court in awarding appellee an interest in appellant’s retainer pay and cost-of-living increase thereto is reversed, and we hereby render judgment that appellee take nothing as to such retainer pay and cost-of-living increase to such retainer pay. That part of the judgment awarding appellee an interest in the cost-of-living increase to her interest in the retirement benefits is affirmed.

Since we have affirmed the judgment in part and reversed and rendered in part, we tax the costs on appeal and in the court below equally against the parties. Tex.R.Civ.P. 488; Coca Cola Bottling Co. v. Hobart, 423 S.W.2d 118, 126 (Tex.Civ.App.—Houston [14th Dist.] 1967, writ ref’d n. r. e.).

REVERSED and RENDERED in part and AFFIRMED in part.


text:
    Alton CHOATE, Appellant, v. Juanita CHOATE, Appellee.
    No. 8206.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 23, 1978.
    Rehearing Denied Feb. 1, 1979.
    Robert P. Walker, Port Arthur, for appellant.
    Terry Doyle, Port Arthur, for appellee.
   DIES, Chief Justice.

Appellee, Juanita Holley Choate, brought suit in the 317th District Court of Jefferson County seeking divorce from appellant Alton Choate, division of the community property, and managing conservatorship of two minor children.

After a jury trial, the court on May 2, 1978, divided the community estate, awarded appellee managing conservatorship of the one child under eighteen years of age, and provided for support payments. A divorce of the parties was not decreed, and the judgment specifically provided: “It is decreed that all relief requested in this cause and not expressly granted herein be and is hereby denied.”

Appellant’s first point urges that the trial court could not render judgment with respect to property without granting the divorce. We sustain this point, reverse the judgment of the trial court and render judgment as set out hereafter. In Ledbetter v. Ledbetter, 229 S.W. 576 (Tex.Civ.App.—Austin 1921, no writ), we find at 577:

“Under the statute . . . the power of the court to determine property rights is dependent upon the granting of divorce to one of the parties.”

Burns v. Burns, 59 Tex.Civ.App. 549, 126 S.W. 333, 334 (1910, no writ):

“But if the divorce, on hearing, be denied, then the court was without power in such suit for divorce to otherwise adjust the property rights of husband and wife then fixed by law.”

Christie v. Tipps, 279 S.W .2d 142, 144 (Tex.Civ.App.—Eastland 1955, no writ):

“The power of the court to determine the property rights of the parties depends upon the granting of a divorce.”

Kelly v. Gross, 293 S.W. 325, 326 (Tex.Civ.App.—San Antonio 1927, no writ):

“If for any reason no decree of divorce is entered, then the court is without power in that suit to disturb the existing status of the community property as between husband and wife.”

Pelham v. Sanders, 290 S.W.2d 684, 687 (Tex.Civ.App.—Texarkana 1956, no writ):

“Respondents take the position that the judge had the right to sever the community property rights of the parties from the divorce action and base their contention upon provisions of Rule 174(b) V.A.T. R.C.P. Such contention is untenable. In a suit for divorce and partition of community property the part of the divorce suit regarding property is a part of the divorce suit itself and a trial court is not entitled to sever that part of the suit from the divorce action.”

Carter v. Carter, 336 S.W.2d 466, 468 (Tex.Civ.App.—Austin 1960, no writ):

“The above authorities make it clear that when the trial court denied the parties here a divorce he was unauthorized to proceed to adjudicate their community property rights.”

The above authorities have not been changed or modified by the Family Code. Tex. Family Code Ann. § 3.63 (1975) reads “In a decree of divorce or annulment the court shall order a division of the estate . .” etc. (Emphasis supplied.)

Judgment

There has been no attack upon the judgment insofar as it denied the divorce, and that phase of the judgment is affirmed.

We reverse the judgment of the trial court insofar as it relates to a division of the community property of the parties and the appointment of a managing conserva-torship of the minor child. Having denied the divorce, the trial court had no jurisdiction to grant such relief to the appellee, and such facets of the judgment are here and now set aside and henceforth shall be of no force and effect.

AFFIRMED in part and in part REVERSED as herein noted.


text:
    RAILROAD COMMISSION of Texas, Appellant, v. AMERICAN PETROFINA COMPANY OF TEXAS, Appellee.
    No. 8136.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Ralph T. Aldave, Austin, for appellant.
    James N. Cowden, Austin, for appellee.
   DIES, Chief Justice.

We review a judgment of the District Court of Travis County which struck down a Railroad Commission (appellant) order directing American Petrofina Company of Texas (appellee) to plug a well. The facts are not in dispute.

The well here involved was originally completed by Tenneco Oil Company in 1962 and operated as a dual completion until 1966 under a lease from the surface owner, Lentz.

In December 1969, Tenneco assigned its interest in the Lentz lease to L & F Drilling Co. This assignment transferred title to the equipment on the lease to L & F Drilling Co. Thereafter, the surface owner Lentz leased the tract to Meeker & Co., which in January 1970 purchased the equipment in the Lentz lease from L & F Drilling Co. In June 1970, the Railroad Commission authorized the well involved to be used as a salt water disposal well, but there is no evidence it was ever so used.

Early in 1973, Meeker completed a gas well on the Lentz lease which is still in operation. In May 1973, Meeker assigned its interest in the lease to two other companies, one of which assigned its interest to appellee on October 29, 1973.

After three hearings, the appellant (RRC) ordered appellee to plug the well involved, which then precipitated appellee’s lawsuit, from which the Railroad Commission brings this appeal.

The authority for appellant’s order to plug the well is found in Tex.Nat.Resources Code Ann. § 89.011 (1978):

“The operator of a well shall properly plug the well when required and in accordance with the commission’s rules that are in effect at the time of plugging” (formerly Tex.Rev.Civ.Stat.Ann. art. 6005 §2).

“Operator” is defined in Tex.Nat.Resources Code Ann. § 89.002(a)(2) (1978) as “a person who is responsible for the physical operation and control of a well at the time the well is about to be abandoned or ceases operation” (formerly Tex.Rev.Civ. Stat.Ann. art. 6005 § 1).

At the time appellee acquired the Lentz lease, the well involved had long ceased producing and had been abandoned by its operator. Appellee has never used this well, has no intention of doing so, and in fact did not even know it was on the Lentz lease at the time of acquisition. It would strain the English language as well as the statute defining an operator to conclude that appellee is the operator of this well.

In Humble Oil & Refining Co. v. Cook, 215 S.W.2d 383, 387 (Tex.Civ.App.—Austin 1948, writ ref’d n. r. e.), the court had before it the situation where the owners of a well had damaged the well and failed to repair and operate it. In refusing to hold that the owners had abandoned the well the court said: “An intention to abandon involves an intention not to return and reoccupy the property.” Here appellee never “occupied” the well; so it could not “abandon” it. Or as stated in Labbe v. Carr, 385 S.W.2d 592, 597 (Tex.Civ.App.—Eastland 1964, writ ref’d n. r. e.). “It is held that to constitute abandonment of an oil and gas lease there must be both intention to abandon and actual relinquishment of the enterprise.”

Appellee most certainly was not the “person . . . responsible for the physical operation and control [of the well involved] . at the time the well [was] about to be abandoned or [ceased] operation,” Tex.Nat.Resources Code Ann. § 89.002(a)(2) (1978).

We hold that appellee is not the operator of the well involved. This makes it unnecessary to address appellant’s other points. All of appellant’s points are overruled. The judgment of the trial court is affirmed.

AFFIRMED.


text:
    W. G. HORNE, III, Appellant, v. SALADO CREEK DEVELOPMENT CO. et al., Appellees.
    No. 8153.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.

      Darryl Fanelli, Houston, W. H. Ferguson, San Antonio, for appellant.
    Stanley D. Rosenberg, Mary Beth Carmo-dy, James R. Warncke, John Oliver, San Antonio, for appellees.
   CLAYTON, Justice.

Plaintiffs Gus Preissman and wife, Thelma Preissman, Ben Katz, John Oliver and James Warncke brought this action against Salado Creek Development Co., Moses Mus-quiz, Jr., W. G. Horne, III, and Continental Bank of Texas, seeking recovery upon a promissory note in the original amount of $1,044,875, executed by defendant Salado Creek Development Company, co-signed by Moses Musquiz, Jr., and co-signed by W. G. Horne, III, with an express recitation that his (Horne’s) personal liability extended only to the amount of $410,000. Plaintiffs also sought damages for fraud and deceit resulting in the execution of a subordination agreement by plaintiffs. By separate proceedings, Continental Bank is no longer a party to this action. Upon a jury trial, the court entered judgment for plaintiffs as against all named defendants (excluding the Bank) in the amount of $981,808.51. Defendant Horne has perfected this appeal from such judgment. Salado Creek, Moses Musquiz, Jr., have not appealed.

There are many transactions appearing in the record between the parties, and others not parties to this action, which we deem unnecessary to recite. The transactions relevant to this appeal are as follows:

On December 26, 1973, plaintiffs (Preiss-mans and Katz) sold to Horne a certain 96-acre tract of land by warranty deed retaining a vendor’s lien, and a Deed of Trust was executed to secure the payment of a promissory note in the sum of $1,044,875, such note payable to Preissmans and Katz, and signed by Salado Creek, Musquiz, and Horne (who signed with no personal liability). Horne then executed a warranty deed, retaining a vendor’s lien, with a promissory note from Salado Creek to Horne in the sum of $1,500,000. (This note was later transferred to Continental Bank.) Horne signed a “guaranty” to plaintiffs for the $410,000 payment due on the first note (Horne’s note) due on January 4, 1974. (This payment was subsequently made.)

Plaintiffs (Preissmans and Katz) executed a subordination agreement to the effect that their lien, retained by them in their sale to Horne, would become a secondary lien to the lien created by the sale of the land by Horne to Salado Creek (the $1,500,000 note from Salado to Horne). The execution of this agreement, and the reasons for such execution, forms the basis for this cause of action based upon fraud and deceit.

In January 1974, Horne applied for a commercial loan from the Continental Bank. In this transaction Horne transferred the note he received from Salado Creek for the sale of the land. From this loan, Horne received $800,000 in the form of $410,000 cash (which was paid by the Bank to plaintiffs as payment on Horne’s note to them), and the remainder was retained by the Bank in the form of certificates of deposit. After the January 1974 payment was made on plaintiff’s note from Horne, no further payments were made. On October 1, 1974, the Bank foreclosed on the property securing Horne’s note to it for $1,500,000. Horne later reacquired the property and subsequently resold it for $1,450,000.

Plaintiffs filed this action on the promissory note signed by defendants and, in addition thereto, sought damages arising from fraudulent representations made by Horne inducing plaintiffs to execute the subordination agreement. The evidence presented was sufficient to raise the issue to be determined by the jury. Horne made certain false representations to plaintiffs to induce them to sign the agreement.

The agreement, in effect, permitted the lien retained by Horne in its sale to Salado Creek to be a first lien against the property and that plaintiffs’ lien would be secondary, permitting Horne then to borrow money from the Bank so that the Bank could, through transfer of Horne’s note and vendor’s lien, obtain a primary lien upon the property.

The jury returned a verdict, finding, as to Horne, that defendant Horne committed fraud in obtaining the execution of the subordination agreement by plaintiffs, and that as a result of such fraud incurred damages in the amount of $750,000. In view of our disposition of this appeal, the other findings made by the jury are immaterial.

Plaintiffs filed a motion for judgment, and in such motion specifically requested the court to disregard the jury’s answer to Special Issue No. 4 inquiring as to damages resulting from Horne’s fraud to which they answered $750,000 for the reason that such damages “are so wholly contrary to the great weight and overwhelming preponderance of the evidence as to be clearly wrong, manifestly unjust, and shocking to the conscience, in that the plaintiffs’ damage, sustained by the false representation of HORNE, was the loss of their security, securing the note in question, and, accordingly, the amount of their damages must be equal to the amount of the note in question, with full interest and attorneys’ fees.”

The judgment actually signed and entered by the court recites therein that “the . answers to Special Issue No. 4 is hereby disregarded by the Court, as the Court finds that the amount of the plaintiffs’ damage as a result of executing the subordination agreement must necessarily be the same as and equal to the total amount of money, principal, interest and attorneys’ fees due upon the note that was secured by the lien subordinated herein, as a matter of law . . . ” and thereupon assessed damages, based upon such findings in the same amount as that due upon the note.

Appellant urges in his fourth point that “the trial court erred in holding as a matter of law that the amount of plaintiffs’ damages must necessarily have been the same as the total amount of the note.”

Plaintiffs sued for damages resulting from the fraudulent acts of Horne. The loss sustained by plaintiffs was the loss of a first or primary lien. The loss complained of by plaintiffs was that their lien was actually reduced to a secondary lien. The only value of the lien was the security it gave to them for foreclosing on the property subject to the lien and to sell it and apply the proceeds to the payment of the note. The sale of the property could possibly produce proceeds sufficient to satisfy the total indebtedness or only a part thereof. The land itself is the security for the payment of the indebtedness. In losing such security as a result of the fraud, the damages sustained by plaintiffs would be the loss of the land and would not be the total amount of the indebtedness. The indebtedness, evidenced by the note, would be outstanding regardless of the disposition of the land.

To determine their loss or damages, plaintiffs must prove the market value of the land involved. The proper measure of damages must encompass the market value of the land, or pleading and proof of a pecuniary loss, directly traceable to the wrongful act complained of and to be the proximate result thereof. See Success Motivation Institute, Inc. v. Lawlis, 503 S.W.2d 864 (Tex.Civ.App.—Houston [1st Dist.] 1973, writ ref’d n. r. e.); Frey v. Martin, 469 S.W.2d 316 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); El Paso Development Company v. Ravel, 339 S.W.2d 360 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.); Patterson v. Wizowaty, 505 S.W.2d 425 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ).

The court, in setting aside the damages as found by the jury, and entering judgment in the amount of the note, applied an erroneous measure of damages. It cannot be said that the court entered judgment upon the note because the express request of plaintiffs in their motion for judgment, and the action of the court in disregarding the findings of the jury and the express finding of the court in assessing damages and entering judgment thereon, conclusively show that, as plaintiffs admit in their brief, “[T]he court found the amount of damages must necessarily be equal to the total amount of money, principal, interest, and attorney fees. . . . ” The court’s action concerned the measure of damages resulting from fraud, and the court did not enter judgment based upon the liability arising from the note.

Because of the error of the trial court, this cause must be reversed and remanded as to Horne. The judgment as to the other non-appealing parties will not be disturbed.

REVERSED and REMANDED.


text:
    F. Hastings PANNILL, Sr., Appellant, v. Ceil W. MOORE, Appellee.
    No. 8166.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Rehearing Denied Feb. 1, 1979.

      F. Hastings Pannill, Sr., Houston, T. H. Crofts, Jr., Arch G. Adams, San Antonio, for appellant.
    Scott L. Campbell, Phillip Wilson, Dallas, Sawtelle, Goode, Davidson & Troilo, Eugene B. Labay, San Antonio, for appellee.
   DIES, Chief Justice.

Defendant below appeals from the overruling of his plea of privilege.

The pleading filed by defendant was styled “Motion for Change of Venue and Plea of Privilege.” The first paragraph asks for a change of venue to Crane County, that the suit is one “for the recovery of lands or damages thereto, or to remove encumbrances upon the title to land, or to quiet the title to land, and that such land is located in Crane County, Texas.”

The second paragraph begins, “Subject to the with and foregoing Motion for Change of Venue. . . . ” etc.; then follows the usual language of a plea of privilege asking that venue be changed to his county of residence — Harris.

In Texas Highway Department v. Jarrell, 418 S.W.2d 486, 489 (Tex.1967), we find:

“Venue cannot be put in issue by pleas to the jurisdiction, pleas in bar, or pleas in abatement, but only by a plea of privilege.” (Citing authorities)

A plea of privilege is waived unless filed in due order of pleading, i. e., it must be filed prior to any plea other than that of a special appearance under Tex.R. Civ.P. 120a; O’Neal v. Texas Bank & Trust Co., 118 Tex. 133, 11 S.W.2d 791, 792 (1929); Dyer v. Metallic Building Co., 405 S.W.2d 119, 120 (Tex.Civ.App.—Eastland 1966, no writ); Commercial Standard Insurance Co. v. Fondren, 509 S.W.2d 728, 729 (Tex.Civ.App.—Beaumont 1974, no writ). We hold defendant waived his plea of privilege by filing it subject to the motion for a change of venue, and thus we overrule his first four points of error.

In Point of Error No. 5, defendant contends that plaintiff’s amending of her petition allowed him to amend his plea of privilege, and exclude the motion for change of venue. The rule would permit defendant’s amendment if plaintiff’s amended petition injected into the lawsuit a matter that was materially different in substance or form or appreciably altered the rights and obligations of the parties to the prejudice of defendant. See International Shelters, Inc. v. Pinehurst Inv. Corp., 474 S.W.2d 497, 500 (Tex.Civ.App.—Corpus Christi 1971, writ dism’d), and authorities there cited.

In plaintiff’s original petition, the prayer was for an accounting, sums due, “a judgment that property held by Defendants . . is held in a constructive trust for Plaintiff,” a permanent injunction, and punitive damages.

Plaintiff’s amended petition asks for an accounting “for all monies and property . . . acquired as a result of a fiduciary duty,” a money judgment based on the accounting and that “stock ownership . and other property owed to Plaintiff by Defendants ... be held in a constructive trust . . .,” plus punitive damages.

We hold that this change is slight, and not materially different from the original pleading. This point is overruled. Defendant has one other point which we find without merit, and it is overruled. The order of the trial court is affirmed.

AFFIRMED.


author: KEITH, Justice.

text:
    Lucile H. BRAY, Appellant, v. Francis G. BRAY, Appellee.
    No. 8193.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    E. J. O’Neill, Sr., Houston, for appellant.
    Fred Much, Houston, for appellee.
   KEITH, Justice.

The parties were formerly husband and wife, having been married in 1949 and divorced by a decree entered in 1973. The decree of divorce includes a detailed division of the property rights of the parties and is based upon a voluminous record which is incorporated into the record of this appeal.

In May, 1974, the wife (respondent in the divorce proceeding and the appellant herein) filed suit to reopen the divorce case contending that the renewal commissions being paid to the husband because of the sale of life insurance policies during the marriage constituted community property which had not been taken into account in the earlier property settlement. She contended, in effect, that the failure to provide for a division of this portion of the community property in the decree left the parties as tenants in common or joint owners thereof. See Busby v. Busby, 457 S.W.2d 551, 554 (Tex.1970), relating to military retirement pay. Cf. Vibrock v. Vibrock, 561 S.W.2d 776 (Tex.1977). See also 32 S.W.L.J. 109, 114-115 (1978).

The second suit was filed in the 164th District Court of Harris County but, upon motion and under local rules not to be found in our record, the cause was transferred to the Court of Domestic Relations No. 4 of Harris County, the court which had entered the divorce decree. This court is now known as the 311th District Court and it is from the latter court that this appeal has been perfected.

In a non-jury trial, the court considered the entire record in the prior divorce proceeding, including several depositions which are not in our record. The pleadings, discovery motions, and post-trial motions in the divorce proceedings have been included in our transcript and are before us for our consideration. The trial court was not requested to file findings of fact or conclusions of law and we have none in our record. Consequently, we invoke the well recognized rule recently restated in Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977):

“Where findings of fact and conclusions of law are not properly requested and none are filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence.”

The husband interposed a plea of res judi-cata and contended below that the question had been considered by the divorce court in the entry of the divorce decree. Thus, it is argued, the present attack on the judgment was collateral in nature. The question presented is relatively simple and may be resolved without our determination of whether or not the renewal commissions constitute community property analogous to military pension rights.

If the renewal commission fund benefits had been considered by the trial court and included in the divorce decree, the holding in Busby v. Busby, supra, is inapposite. See Constance v. Constance, 544 S.W.2d 659, 660 (Tex.1976), where the Court looked only to the language found on the face of the judgment; and, harmonizing and giving effect to all the court had written, found that the retirement benefits had been included in the property division.

Several weeks elapsed between the trial of the divorce case and the entry of judgment, during which interval the wife filed a lengthy motion. A cursory reading of the pleading shows that it was her contention then that she was seeking a division of future commissions to be paid upon life insurance policies theretofore sold by the husband. This motion was filed on August 31, 1973, and the husband responded thereto saying, inter alia: “. . . and as hereinafter stated the renewal commissions and contract were known to the Respondent [wife] at all material times before and during the trial.” With these contentions then before the divorce court, the trial judge granted the husband’s motion and entered judgment disposing of the community property, the decree bearing date of October 18, 1973.

No appeal was perfected from this divorce decree and it was a final judgment at the time the wife filed her suit to reopen the cause on May 17, 1974.

The doctrine of res judicata bars plaintiff’s .action. Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971); Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97 (1894). See also Z. Steakley and W. Howell, Jr., “Ruminations on Res Judicata”, 28 S.W.L.J. 355, 368 (1974); Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 198 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n. r. e.); Barnett v. Maida, 523 S.W.2d 325, 327 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.).

We do not pass upon the question of whether or not the divorce court entered an errorless judgment. Unquestionably, that court had jurisdiction of the parties and of the subject matter of the litigation. And, in the entry of the divorce decree, the court had knowledge of the contentions now advanced by the wife. If any error was committed, it was a judicial error and one which could have been corrected by a direct appeal from the judgment.

The present claim of the wife was merged into the judgment in the divorce proceeding so as to bar the subsequent proceeding now before us. Steakley and Howell, supra (28 S.W.L.J. at 356); Hanrick v. Gurley, 93 Tex. 458, 56 S.W. 330 (1900). Having an adequate legal remedy, i. e., a direct appeal, the wife may not now resort to a collateral attack upon the final judgment. See G. Hodges, “Collateral Attacks on Judgments”, 41 Texas L.Rev. 163, 183 (1962), and authorities therein cited. See also Ex parte Sutherland, 526 S.W.2d 536, 539 (Tex.1975).

It is crystal clear in our record that the trial court had before it the contentions of the wife that the renewal commissions payable in the future constituted a part of the community estate of the parties and deliberately denied the wife a recovery of any portion thereof. If an error was made at that time, it was a judicial error and the wife’s remedy was to perfect a direct appeal from such ruling, not to urge the collateral attack. See Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968).

It is equally clear, as stated in Pope v. United States, 323 U.S. 1, 14, 65 S.Ct. 16, 23, 89 L.Ed. 3, 13 (1944): “Jurisdiction to decide is jurisdiction to make a wrong as well as a right decision.” If the trial court erred, the error could have been rectified by a direct appeal; but it cannot be reached in this collateral proceeding.

We have reviewed all of the points of error brought forward by appellant and, finding no error, the judgment of the trial court is AFFIRMED.

      . The First Court of Civil Appeals, prior to the transfer of the cause to this court, denied the motion of the wife to supplement the record by filing the original of the depositions in the divorce action. We adhere to that ruling in this opinion, thereby preserving the right of the appellant to complain on further appeal of such denial.

      . Husband cites and relies upon Vibrock v. Vibrock, 549 S.W.2d 775 (Tex.Civ.App.—Fort Worth 1977), that such renewal commissions do not constitute community property. The caveat laid down by the Supreme Court in denying review of this decision casts grave doubt upon the underlying holding of the intermediate court. 561 S.W.2d 776 (Tex.1977). As indicated, we do not reach the basic question urged upon us by the parties and do not align this court with or against the Fort Worth court.


text:
    GEOPHYSICAL DATA PROCESSING CENTER, INC., Appellant, v. Rafael B. CRUZ, Appellee.
    No. 8203.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.

      J. Nicholson Meindl, Houston, for appellant.
    John S. Brunson, Houston, for appellee.
   CLAYTON, Justice.

This cause was filed by Rafael B. Cruz, appellee, against three defendants — Lee Webster, Whitehall Corporation, and Geophysical Data Processing Center, Inc. (GDPC), appellant. Defendants Webster and Whitehall filed a plea of privilege to be sued in Dallas County. Appellant did not file a plea of privilege. The trial court sustained the plea of privilege filed by defendants Webster and Whitehall and transferred the cause as to these defendants to Dallas County. The trial court further held that all parties were indispensable, and the causes of action were not severable. Accordingly, the entire cause of action, including the action against Geophysical Data Processing Center, Inc., was transferred to Dallas County, from which order appellant has appealed.

The sole question to be decided by this court is whether or not the trial court erred in transferring the entire cause to Dallas County.

Appellant urges error of the trial court in transferring the cause against it “because the causes of action asserted against GDPC, Whitehall and Webster are severable” and that “the causes of action asserted against [the three defendants] are joint and several.”

To determine whether or not this cause is severable as to appellant and whether or not appellant is a necessary party to the cause of action asserted against Webster and Whitehall, resulting in the proper transfer of the cause of action in its entirety, we must first determine what causes of action have been pleaded by ap-pellee and what relief has been sought. Cogdell v. Fort Worth National Bank, 537 S.W.2d 304 (Tex.Civ.App.—Fort Worth 1976, writ dism’d); Whitley v. King, 227 S.W.2d 241 (Tex.Civ.App.—Waco 1950, no writ). As the court states in Whitley v. King, supra: “The nature and objects of an action can be determined only from a consideration of all the material averments contained in the petition or complaint upon which the suit is based and the character of relief therein sought [citing cases]. Hence, the propriety of joining and severing parties and actions in any legal proceeding is dependent primarily, although not always exclusively, upon the state of the pleadings relevant to such proceeding.”

Plaintiff’s cause of action against the three defendants is based upon fraud for the actions of defendants, including appellant, in connection with a certain Software Licensing Agreement between appel-lee and appellant. Under the terms of this agreement, appellant, a wholly owned subsidiary of Whitehall, was to pay $15,000 for a temporary license for 180 days for the use of an “Explorer System” which consists of various computer programs used for the processing of geophysical data, such system to be used in its installation in Houston, Harris County, Texas. Plaintiff further contended that Webster was in absolute control of Whitehall and appellant during the entire time concerned in this suit. Appellant is a wholly owned subsidiary of Whitehall. All the actions by the defendant corporations (Whitehall and appellant) have been done at the instance and direction of Webster and “he has used the Defendant corporations to further his intention with regard to the defrauding of the Plaintiff or his rights in and to the Explorer System.”

At the conclusion of the 180-day period, appellant was to pay balance due for such temporary license, but refused to do so and retained the system.

There are other contentions, stated in the petition, that at the end of the temporary license period appellant had a right to purchase a permanent license for the use of the system by paying an additional $35,000 during the term of the temporary license. The agreement further provided for licenses to appellant for other installations at locations outside its Houston office upon payment of $30,000 for the second installation and $15,-000 for third and subsequent installations. Appellant, at the end of the temporary license period, retained the system although it failed to make payment for the permanent license. In addition, appellant made or caused to be made a conjunction with the other defendants, and expressly at the direction of Webster, another installation in Africa without paying the $30,000 as required by the agreement. Plaintiff further pleads that appellant represented to the geophysical industry that it had an exclusive system capable of performing the computer technology that in fact was being performed by appellant utilizing plaintiff’s Explorer System and that by reason thereof the value of plaintiff’s system was diminished; and further that appellant has represented to users of the system that appellant owns the rights in and to the system with authority to make installations, such representations being false, resulting in the diminished value of the system in the market place. Plaintiff further contends that appellant has been a “shell corporation operated for the use and benefit of the Defendant Whitehall and [appellant] has no assets other than the Explorer System and appellant is in fact an alter-ego of the Defendant Whitehall.”

In Commonwealth Bank & Trust Company v. Heid Bros., Inc., 122 Tex. 56, 52 S.W.2d 74 (Tex.Comm’n.App.1932, jdgmt. adopted), it is stated:

“A ‘necessary party’ to a suit, according to the general understanding of that term, is one who is so vitally interested in the subject-matter of the litigation that a valid decree cannot be rendered without his presence as a party.”

In Orange Associates v. Albright, 548 S.W.2d 806 (Tex.Civ.App.—Austin 1977, writ dism’d), the court said:

“A necessary party is one whose joinder is required in order to afford the plaintiff the complete relief to which he is entitled against the defendant who is properly suable in that county.”

In International Harvester Co. v. Stedman, 59 Tex. 593, 324 S.W.2d 543 (1959), the Supreme Court states the well established rules as to the transferring of the entire cause when the plea of privilege of one of several defendants is sustained. The Supreme Court quotes from Johnson v. First National Bank, 42 S.W.2d 870 (Tex.Civ.App.—Waco 1931, no writ), as follows:

“The rule seems to be that, where one of several defendants files a plea of privilege to be sued in the county of his residence, and the plea is sustained, if the cause of action is a joint action growing out of joint liability of all of the defendants, the suit must be transferred in its entirety to the county of the residence of the defendant whose plea is sustained. On the other hand, if the cause of action against several defendants is severable, or joint and several, the court should retain jurisdiction over the action in so far as it concerns the defendants whose pleas of privilege have not been sustained, and should transfer the suit in so far as it concerns the defendant whose plea is sustained.”

In the pleadings of plaintiff, as pointed out above, the relief sought against the three defendants in this cause of action is so interwoven that to obtain the relief sought by the plaintiff necessitates the presence of all of the defendants. The pleadings concerning the express direction of the actions of the corporate defendants by Webster and the allegation of the alter-ego status of Whitehall and appellant require the presence of each and all the defendants for an adequate judgment to be rendered in this cause.

The cause of action asserted by plaintiff is such that he could not obtain the full relief to which he may be entitled, that is, a joint as well as several judgment against all defendants unless all were sued in the same action. See Commonwealth Bank & Trust v. Heid Bros., Inc., supra; Orange Associates v. Albright, supra.

The trial court properly transferred this entire cause to Dallas County, and the judgment is affirmed.

AFFIRMED.


author: CLAYTON, Justice. KEITH, Justice,

text:
    George McCRAY, Jr., Appellant, v. Sonya A. McCRAY, Appellee.
    No. 8219.
    Court of Civil Appeals of Texas, Beaumont.
    Dec. 28, 1978.
    Rehearing Denied Jan. 18, 1979.

      James W. Steele, Conroe, for appellant.
    Duane T. Corley, Conroe, for appellee.
   CLAYTON, Justice.

This action was filed by plaintiff (Sonya) to enforce a “contractual alimony” agreement contained in a decree of divorce entered May 22, 1974. Plaintiff filed her motion for summary judgment which was granted by the trial court, and defendant appeals therefrom.

The pleadings of plaintiff show that on May 22, 1974, a decree of divorce was entered, and, as alleged by plaintiff, “[t]hat said Decree of Divorce provided that the Petitioner (defendant) . . . pay to the Respondent (plaintiff) . . . the sum of $272.73 per month as Contractual Alimony, for a period of 132 months, for which there was to be a reasonable security.” Plaintiff’s pleadings also were to the effect that defendant is delinquent in the monthly payments required by such divorce decree and that no payments have been made since November 1975 and prayed for recovery for the delinquent money due plaintiff.

The trial court granted plaintiff’s motion for summary judgment, and recites therein that “the Court finds that the Decree of Divorce between Plaintiff and Defendant entered in Cause Number 25,986 . constitutes a binding contract for the division of the parties’ community estate. . . ” Whereupon the court granted a summary judgment against defendant in the sum of $7,636.44 representing delinquent installments in the amount of $272.73 per month from December 1975 until the date of the judgment.

The divorce decree rendered in the original divorce proceedings contained this paragraph:

“And it appearing and was announced to the Court that the parties hereto had agreed to a property settlement which in brief is that Petitioner GEORGE MCCRAY, is to pay to Respondent the sum of $25,000.00 cash of which no more than $10,000.00 may be represented by salable real property. Further that the Petitioner is to pay to the Respondent the sum of $272.73 per month as Contractual Alimony, the said payments to be limited to 132 installments, for which there shall be reasonable security. The Petitioner is to receive the rest and remainder of the Community Estate as his separate property. A more full and complete property agreement is to be filed herein which agreement is fully approved herein.”

Following this reference to the property agreement settlement, the court then proceeded to grant the divorce, and as to the minor child of the parties, the court decreed: “It is the further order of this Court that the temporary custody of this minor child be and remain in JANE FRIETAG, until further order of this Court.” The court made no further mention or any specific order or decree concerning the “contractual alimony” payments referred to in the reference to an agreement of the parties.

The parties are in agreement that they did not execute or file with the court the contractual property settlement agreement referred to in the divorce decree.

The court in the divorce decree in the original proceedings did not specifically order the division of the parties’ property, but, instead, merely approved the parties’ agreement, and such recitals have been held not to be an award of the court. In Rausheck v. Empire Life Insurance Co., 507 S.W.2d 337 (Tex.Civ.App.—Texarkana 1974, writ ref’d n. r. e.), the court, in quoting 49 C.J.S. Judgments § 71, states:

“The judgment or decree does not reside in its recitals but in the mandatory or decretal portion thereof, which adjudicates and determines the issues in the case and defines and settles the rights and interests of the parties as far as they relate to the subject matter of the controversy. . . . ”

And, in quoting from 46 Am.Jur.2d Judgments, Sec. 78:

“[I]t is only the decretal portion of the judgment that operates as a judgment; the rights of the parties are adjudicated, not by the recital of facts, but solely by the decretal portion.”

Accord, Harrison v. Manvel Oil Co., 142 Tex. 669, 180 S.W.2d 909 (Com.App.1944, jdgmt. adopted); Cox v. City & County of Dallas Levee Improvement Dist., 258 S.W.2d 851 (Tex.Civ.App.—Dallas 1953, writ ref’d n. r. e.).

In view of the above authorities, the mere recitation by the court that the property agreement had been agreed upon, and briefly referring to the conditions thereof in a general way, and specifically stating that “a more full and complete property agreement is to be filed herein which agreement is fully approved herein” did not constitute an award or order of the court, that such was not a decree of the court, and in the absence of a specific decree could not be enforced as a part of the judgment.

The plaintiff could not recover upon the property settlement agreement, separate and apart from the divorce decree. Such agreement cannot be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record. See Tex.R.Civ.P. 11; Behrens v. Behrens, 186 S.W.2d 697 (Tex.Civ.App.—Austin 1945, no writ); Pewthers v. Holland Page Industries, Inc., 443 S.W.2d 392 (Tex.Civ.App.—Austin 1969, writ ref’d n. r. e.); McIntyre v. McFarland, 529 S.W.2d 857 (Tex.Civ.App.—Tyler 1975, no writ).

The summary judgment of the trial court is reversed, and the cause is remanded.

REVERSED and REMANDED.

KEITH, Justice,

dissenting.

Notwithstanding my disapproval of the careless and inexcusably sloppy handling of the property rights of the parties in the original decree, I respectfully dissent.

Our appellant invoked the jurisdiction of the divorce court seeking a divorce and a division of the community property. The decree in our record reveals that he was present in court with his counsel at a time when it “was announced to the Court that the parties hereto had agreed to a property settlement”, as noted in the majority opinion. Our appellant knew that this agreement bound him to make monthly payments over a period of time aggregating $36,000 and he knew, because he was there when the announcement was made, that the court decreed that he should have the rest and remainder of the community property.

He not only knew of his obligations under the judgment, but he performed by making the payments for approximately eighteen months (May, 1974 — November, 1975). In his opposition to the summary judgment, appellant swore:

“That at the time said divorce decree was rendered by the Court, all parties appeared in person and announced to the Court that they had agreed upon a settlement of this cause. . . . That it was agreed that SONJA A. McCRAY would receive the sum of $25,000 cash for her interest in the community property. I further agreed to pay to SONJA A. McCRAY the sum of $272.73 per month for 132 months for alimony. At the time I agreed to this, I did not know it was illegal for the Court to order alimony payments and I was told that I would be able to deduct such payments from my income tax and that all such payments would be income to my wife.”

Appellant does not — even now and four and a half years later — deny the existence of the settlement agreement. Instead, he admits the agreement and attempts to avoid it by an explanation. This is a collateral attack upon a judgment. See G. Hodges, “Collateral Attacks on Judgments”, 41 Texas L.Rev. 163 (1962):

“A collateral attack is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose.”

See also Peddicord v. Peddicord, 522 S.W.2d 266 (Tex.Civ.App.—Beaumont 1975, writ ref’d n. r. e.), and authorities therein cited.

The reliance upon Rausheck v. Empire Life Insurance Co. of America, 507 S.W.2d 337 (Tex.Civ.App.—Texarkana 1974, writ ref’d n. r. e.), is misplaced. The attack there was direct — not collateral.

Tex.R.Civ.P. 11 has no applicability. The agreement was made in open court and entered of record by being noted in the judgment of the court. See Sone v. Braunig, 469 S.W.2d 605, 609 (Tex.Civ.App.—Beaumont 1971, writ ref’d n. r. e.).

Even appellant’s belated excuse for defaulting upon his obligations constitutes no legal defense. We had a similar excuse tendered in Lee v. Lee, 509 S.W.2d 922, 926 (Tex.Civ.App.—Beaumont 1974, writ ref’d n. r. e.), which was disposed of in this manner:

“Burt [Lee] made no effort to prove fraud, as indeed he could not in the posture in which the question arose: his own lawyer made the statement upon which he relied. Cf. O’Meara v. O’Meara, 181 S.W.2d 891, 894 (Tex.Civ.App., San Antonio, 1944, error ref.); Boley v. Boley [Tex.Civ.App., 506 S.W.2d 934] supra fn. 4. If there was a mistake made by Burt’s lawyer, it was one of law. Insofar as Burt contended that there was a mutual mistake, it too was one of law and not of fact. But a mutual mistake of law is not ground for rescission or cancellation of a contract. Harris v. Sanderson, 178 S.W.2d 315, 320 (Tex.Civ.App., Eastland, 1944, error ref. w. o. m.); Ussery v. Hollebeke, 391 S.W.2d 497, 501 (Tex.Civ.App., El Paso, 1965, error ref. n. r. e.).” (emphasis in original)

Appellant was not justified in repudiating his court-approved obligation to make the monthly payments to the appellee. His erroneous unilateral determination that such a payment was illegal, under the circumstances shown by our record, constitutes a collateral attack on the judgment and is no defense to appellee’s claim.

I would affirm the judgment of the trial court.

      . Present counsel did not participate in the divorce hearing which was conducted by a different judge than the one presiding at the instant trial.

      . Rule 11: “No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.” (emphasis added)