author: PHILLIPS, Judge. DOUGLAS, Judge, ODOM, Judge,

text:
    Albert Benjamin HARRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 53245.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.

      James Sparks, Jr., Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and Paul E. Ña-man, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for murder under the former penal code. Art. 1256, V.A.P.C. Punishment was assessed at seven years’ confinement.

On June 16, 1973, appellant was arrested and charged with the murder of Daisy Taylor at the home of Robert Mouton. During the trial, it was established that the deceased, the appellant, Janette Landry and Robert Mouton were present when the shooting occurred. Mouton testified that all four persons were in the bedroom of his apartment and that as he started to leave the room he heard a shot. He immediately turned and observed the appellant with a gun in his hand pointing at the deceased.

The appellant testified that while he had been in the apartment most of the evening, he left the apartment to get a package of cigarettes. He stated that he first learned of the shooting when he returned from the store. Then, over objection and after a hearing outside the presence of the jury, the prosecutor was allowed to ask appellant if, after his arrest and during his ride to the police station, he told police officers that he had been cleaning the gun and it accidentally discharged, striking Daisy Taylor. Appellant denied making such a statement.

The State then recalled Officer Airhart, who testified, without objection, that appellant told him and the other officers that while he had been cleaning the gun it had accidentally fired and struck the deceased.

Appellant contends that this statement was a confession and, as such, the trial court erred in allowing testimony concerning the statement. Art. 38.22, V.A.C.C.P. The State, however, in its brief argues that the statement made was “exculpatory” and did not fall within the ambit of Art. 38.22, nor within this Court’s decision in Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973).

The Butler decision outlines the extensive case history behind Art. 38.22, pointing out the conflict in the cases as to whether “exculpatory” statements are included within our confession statute. In Butler, we specifically declined to decide if Art. 38.22 embraced exculpatory statements. In deciding the admissibility of the statement in that case, we held:

“The oral statement used for impeachment was not an exculpatory one. It was not, on the other hand, one that was incriminating, standing alone. It was an acknowledgement of subordinate facts, colorless with reference to actual guilt. It was used, however, as a direct attack upon appellant’s testimony and to show that such testimony was false. And, in this sense, it was oral inculpatory testimony not within any of the exceptions pertaining to oral confessions or statements and, being by decisional law within the ambit of the statute, it was neither admissible as original evidence or for impeachment.” Butler at page 196-97.

As illustrated by the Butler decision, the question here presented is not controlled by the labeling of a statement as either inculpatory or exculpatory. The issue is whether any fact or circumstance contained in an oral statement of an accused may be used by the State as a crimi-native or inculpatory fact against him. This is, in essence, the purpose of our confession statute.

“The purpose and effect of this statute is to prevent the prosecution from using against the accused the testimony of the officer having him under arrest to a verbal statement made by the accused which the state seeks to use to prove his guilt.” Dover v. State, 81 Tex.Cr.R. 545, 197 S.W. 192, 196 (1917) (Concurring opinion by Judge Morrow).

In the instant case, the oral statement of the appellant was introduced by the State to negative and destroy his defense of alibi and is therefore incriminating evidence in the nature of a confession. The appellant’s statement clearly falls within the purpose and spirit of the statute if not within the very letter of Art. 38.22. The plain language of the statute provides:

“In all cases where a question is raised as to the voluntariness of a confession or statement, the court must make an independent finding in the absence of the jury as to whether the confession or statement was made under voluntary conditions. If the confession or statement has been found to have been voluntarily made and held admissible as a matter of law and fact by the court in a hearing in the absence of the jury, the court must enter an order stating its findings, which order shall be filed among the papers of the cause. Such order shall not be exhibited to the jury nor the finding thereof made known to the jury in any manner. Upon the finding by the judge as a matter of law and fact that the confession or statement was voluntarily made, evidence pertaining to such matter may be submitted to the jury and it shall be instructed that unless the jury believes beyond a reasonable doubt that the confession or statement was voluntarily made, the jury shall not consider such statement or confession for any purpose nor any evidence obtained as the result thereof. In any case where a motion to suppress the statement or confession has been filed and evidence has been submitted to the court on this issue, the court within its discretion may reconsider such evidence in his finding that the statement or confession was voluntarily made and the same evidence submitted to the court at the hearing on the motion to suppress shall be made a part of the record the same as if it were being presented at the time of trial. However, the state or the defendant shall be enti‘tled to present any new evidence on the issue of the voluntariness of the statement or confession prior to the court’s final ruling and order stating its findings.” (Emphasis added.)

As is readily ascertainable, the Legislature did not draw a distinction in the statute between exculpatory and inculpatory statements, but rather, sought to prohibit all statements which are incriminating.

This was the interpretation applied in the Butler decision, and although the Legislature could have spoken to this question, it had not done so at the time of appellant’s trial. It must be presumed that the Legislature approved this interpretation. It is the function of the Legislature, not this Court, to amend the wording of Art. 38.22.

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

DOUGLAS, Judge,

concurring.

For many years, this Court has followed the rule that statements made by one while under arrest are not admissible even though they were not the result of custodial interrogation. See Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) and Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1973). These cases and many of their predecessors have been uniformly followed. Under such decisions, the result of this case is correct. The majority notes that after so many years of uniform statutory construction the Legislature and not this Court should change the rule.

Apparently, the Legislature has done that, because Tex.Laws 1977, ch. 348, Sec. 5, at 936, amending Article 38.22, V.A.C.C.P. (effective August 29, 1977) has rendered inoperative the statutory construction in the Butler and Garner cases.

Section 5 of Article 38.22, as amended, now provides:

“Nothing in this article precludes the admission of a statement made by the accused in open court at his trial, before a grand jury, or at an examining trial in compliance with Articles 16.03 and 16.04 of this code, or of a statement that is the res gestae of the arrest or of the offense, or of a statement that does not stem from custodial interrogation, or of a voluntary statement, whether or not the result of custodial interrogation, that has a bearing upon the credibility of the accused as a witness, or of any other statement that may be admissible under law.” (Emphasis added.)

Since lawyers and trial judges have relied upon our previous holdings for so many years, this writer will follow those cases until cases are tried under the new provisions of Article 38.22, Sec. 5, supra.

ODOM, Judge,

dissenting.

Before stating my grounds for dissent, and without excessive emphasis, I call attention to one statement in the majority opinion that may lead some to misconstrue that opinion in one respect. Although the majority state that Officer Airhart testified regarding the complained of statement “without objection,” this should not be construed as holding that Article 38.22, V.A.C.C.P., issues may be raised whenever there is no objection. The majority also point out that appellant objected and secured a ruling in a hearing outside the presence of the jury when the matter first arose. The issue was preserved under Article 40.09(6)(d)(3), V.A.C.C.P.

I will now state my grounds for dissenting to the majority’s disposition of the issue upon which the judgment is reversed.

In his second ground of error appellant contends the trial court erred in admitting over timely objection a prior statement made while in custody. This was a volunteered exculpatory oral statement made after his arrest and warnings of constitutional rights, and offered for the purpose of impeaching appellant’s alibi defense and his denial of having made the volunteered exculpatory statement. No issue of voluntariness is present in this case, and, although no statutory or case authorities are cited by appellant, he apparently relies on Art. 38.-22, Sec. 1, V.A.C.C.P. The exculpatory statement is not a confession, and therefore is not within the ambit of Article 38.22, Sec. 1, supra.

In Butler v. State, 493 S.W.2d 190, the Court confronted a similar situation. In that case, after a review of the legislative history of the confession statutes, the Court reached a conclusion on the legislative policy underlying those acts:

“Thus, the legislature has made a statutory determination that proof of extrajudicial oral confessions made while in custody are generally unreliable.” (Emphasis added) Butler v. State, 493 S.W.2d at 193.

Butler also stands for this second significant proposition:

“For over seventy-five years, the law in Texas has been that a confession, inadmissible in the State’s case in chief, is not admissible for the purpose of impeaching an accused as a witness in his own behalf.” (Emphasis added) Butler v. State, 493 S.W.2d at 193.

For these two propositions, Butler is still sound authority.

Beyond these two firmly established rules, Butler examined the “continuing conflict in the cases as to whether exculpatory statements are included within the confession statute . . . .” 493 S.W.2d at 196. In reviewing decisions on the matter, it was demonstrated that the authorities indeed are in conflict. Among the cases holding exculpatory statements within the ambit of the statute are Hernan v. State, 42 Tex.Cr.R. 464, 60 S.W. 766 and Lightfoot v. State, 117 Tex.Cr.R. 515, 35 S.W.2d 163. Among the cases holding exculpatory statements not within the ambit of the statute are Whorton v. State, 69 Tex.Cr.R. 1, 152 S.W. 1082; Mason v. State, 74 Tex.Cr.R. 256, 168 S.W. 115, and Terry v. State, Tex.Cr.App., 420 S.W.2d 945. Thus, the winds of change have swept over this issue on repeated occasions in the past.

In Butler, however, “The oral statement used for impeachment was not an exculpatory one.” 493 S.W.2d at 196. The oral statement used for impeachment in the case at bar was exculpatory. At trial appellant testified to an alibi at the time of the shooting. In his volunteered statement, unsolicited and not in reply to any questions, appellant related to the arresting officer during the ride to the police station that while he was cleaning the gun it accidentally discharged, striking the deceased. Today the question is again squarely presented, of whether an exculpatory statement is within the ambit of Article 38.22, Sec. 1, supra.

We should hold that a wholly exculpatory statement, such as the one in this case, is not a confession, and overrule Butler v. State, supra, to the extent of its conflict with that proposition. It is not necessary to enter upon a lengthy discussion of why an exculpatory statement is not a confession or of why a denial is not an admission. That one is not the other is plain from the words. If a detailed explanation is desired, one may be found in Whorton v. State, supra, and Mason v. State, supra, both of which are quoted at length in the opinion of Judge Prendergast in Dover v. State, 81 Tex.Cr.R. 545, 197 S.W. 192. Article 38.22, Sec. 1, supra, and its predecessors, by the very language used, address confessions, not exculpatory statements.

The majority rely on two ill-founded positions to hold the exculpatory statement within the ambit of Art. 38.22, Sec. 1, supra. First, the majority quote Art. 38.22, See. 2, supra, and emphasize the repeated use of the phrases “confession or statement” and “statement or confession” as evidence of legislative intent to draw no distinction between confessions and exculpatory statements. The use in section 2 of two distinct terms, “confession” and “statement,” indicates that the Legislature did not consider them synonymous or identical in scope. The issue in this case, furthermore, is not one of the voluntariness of a statement under Section 2, but rather, one of the admissibility of a confession under Section 1. Reliance on the language of Section 2 is misplaced.

Second, the majority rely on the failure of the Legislature to disapprove the interpretation given Art. 38.22, supra, in Butler v. State, supra, as approval of that interpretation. That position is unpersuasive because the Legislature has consistently failed to show disapproval of this Court’s construction of the statute despite repeated changes in that construction, as pointed out above and in Butler. Compare Hernan and Lightfoot with Whorton, Mason, and Terry, all supra. Furthermore, legislative disapproval of the Butler construction is beside the point because, as acknowledged by the majority, “In Butler, we specifically declined to decide if Art. 38.22 embraced exculpatory statements.” (Majority opinion, at 812, 813). Because Butler did not decide the issue presented here, the Legislature’s failure to act has no significance.

I would overrule the ground of error and affirm the judgment.

ROBERTS, J., joins in this dissent.

      . We do not here address the question of how the amendment to Art. 38.22 affects our holding herein. See Acts 1977, 65th Legislature, p. 935, ch. 348, effective August 29, 1977.

      . Cf. Art. 38.22, Secs. 2 and 3, V.A.C.C.P.

      . This article was significantly changed by Acts 1977, 65th Leg., ch. 348, p. 935. The amendment does not apply to this case.

      . But see note 2, above.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Lawrence Edward JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 55283.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    James H. Shoemake, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and William W. Burge, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction in a bench trial for aggravated robbery where the punishment was assessed at five (5) years.

We are met at the outset with the question of whether there was a proper notice of appeal.

On February 28, 1975, which was two days after appellant was sentenced, he filed a pro se notice of appeal. On March 4, 1975, appellant executed a sworn written instrument before the clerk of the trial court. That instrument states, inter alia, as follows:

“That he was on the 26th day of February 1975, convicted in said court of the offense of Aggravated Robbery and thereafter on the 28th day of February 1975, gave notice of appeal from such conviction to the Court of Criminal Appeals of Texas.
“That the transcript in said cause has not yet been forwarded to the clerk of the Court of Criminal Appeals of Texas.
“That I do not wish to further prosecute such appeal.
“I therefore request that the notice of appeal heretofore given be withdrawn.”

In response to appellant’s request, the sentence contains the following notation:

“On this the 4th day of March A.D. 1975 the Defendant again appeared in open Court, in person and by counsel, and withdrew his notice of appeal. It is therefore the order of the Court that this sentence begin as of the 18th day of January A.D. 1975.”

Also on March 4, 1975, appellant executed another written instrument which was sworn to before the clerk of the trial court. That instrument, in pertinent part, states as follows:

“I, Lawrence Edward Johnson, defendant in the above entitled and numbered cause, having been convicted of the offense of Aggravated Robbery and sentenced therein, hereby expressly state as a fact that I have been fully informed by the Judge of this Court and by my attorney, and I know, that I have the legal right of appeal from this conviction to the Court of Criminal Appeals of Texas, and also the right to be represented on appeal by an attorney of my own choice or if I am too poor to pay for such an attorney or the record on appeal, the Court will, without expense to me, provide me with an attorney and a proper record for such an appeal.
“With full understanding of the above, I hereby, in open Court, state that I do not desire to appeal and expressly waive any appeal in this case, and I hereby accept as final the judgment of conviction and the sentence herein and I request that I be allowed to commence serving the same without further delay.”

This instrument also contains the certificate of appellant’s attorney who certified by his signature:

“Approved by me as the attorney representing the defendant and I am present at the time of sentencing and of this waiver.”

On March 6, 1975 the clerk of the trial court received from appellant another pro se notice of appeal. Although this second notice of appeal was postmarked March 4, 1975, the clerk of the trial court did not receive or file it until March 6, 1975.

On March 11, 1975, and in response to appellant’s second notice of appeal, the trial court made findings of fact and conclusions of law. The findings and conclusions read in part:

“The Court further finds that on March 4,1975, the Defendant, Lawrence Edward Johnson, appeared in open Court, in person and by counsel, Ralph Behrens, withdrew his notice of appeal, and in open Court, orally and in writing, waived his right of appeal in this cause. Subsequent to these transactions, the Defendant, Lawrence Edward Johnson, again forwarded a letter to this Court giving notice of appeal, said letter being filed on March 6, 1975. No good cause for out of time appeal has been shown.
“It is the conclusion of this Court from the facts recited heretofore, that neither this Court nor the Court of Criminal Appeals has jurisdiction as to an appeal in this cause.
“Therefore, it is the order of the Court that the Clerk of this Court prepare a transcript in this cause without a statement of facts and process said transcript within the usual appellate procedures so that a determination of jurisdiction may be made by the Court of Criminal Appeals.”

The clerk did not follow the court’s instruction. Appellant was released on parole on September 8, 1976, and on January 11, 1977, a visiting judge appointed an attorney to represent the appellant on appeal.

In Reed v. State, 516 S.W.2d 680 (Tex.Cr.App. 1974), we stated that “a knowing and intelligent waiver of the right to appeal would only prevent him (a defendant in a criminal case) from appealing without consent of the trial court.” Later, in Abron v. State, 531 S.W.2d 643 (Tex.Cr.App. 1976), this court wrote that the waiver of the right to appeal at the time of sentencing “is effective unless and until a timely notice of appeal is filed.” In Ex parte Dickey, 543 S.W.2d 99 (Tex.Cr.App. 1976), we adopted the statement in Reed to the effect that a knowing and intelligent waiver of the right to appeal will prevent a defendant from appealing without consent of the trial court. By adopting the Reed statement, we rejected the statement in Abron. In Hurd v. State, 548 S.W.2d 388 (Tex.Cr.App. 1977), the defendant was sentenced and waived his right to give notice of appeal, orally and in writing. Subsequently, but within ten days following the pronouncement of sentence, he filed a pro se written notice of appeal. In that case the trial court added an addendum to the sentence noting that inasmuch as notice of appeal had been given, “execution of the sentence is deferred to await the judgment and order of our Court of Criminal [Appeals] in this behalf.” Subsequently, the defendant filed a pauper’s oath, and counsel other than trial counsel was appointed by the trial court for the purposes of appeal. The appellate record was then prepared and approved by the trial court. It was then forwarded to this court. We concluded that “[i]t is clear that the trial judge permitted the withdrawal of the waiver of notice of appeal and consented to this appeal.”

The instant case has some similarities to Hurd. For instance, in the instant case, as in Hurd, we find the following addendum to the sentence after appellant’s second notice of appeal:

“And inasmuch as notice of appeal is given herein, execution of the sentence is deferred to await the judgment and order of our Court of Criminal [Appeals] in this behalf.”

However, we also have dissimilarities. The trial court specifically found that appellant had withdrawn his first notice of appeal and had waived the right to appeal the instant conviction. The court further found that no good cause for an out-of-time appeal had been shown. It is apparent from the findings of facts and conclusions of law of the trial judge that he had no intention of allowing appellant to withdraw his earlier waiver of the right to appeal. We therefore hold that Hurd is distinguishable upon its facts.

The second notice of appeal was given after appellant had waived his right to appeal. Since it was given without consent of the trial court, it was ineffective to confer jurisdiction on this court. Consequently, we conclude that the appeal must be dismissed.

Appellant’s brief sets forth other grounds of error. Each of these grounds relates to the procedure which was followed in this case subsequent to the giving of the second pro se notice of appeal. In fact, counsel for appellant in his brief candidly admits that appellant has “no current meritorious grounds for appeal with regard to the trial on the merits. . . . ”

The appeal is dismissed.

      . This was the same date appellant had withdrawn his first notice of appeal and filed the written waiver of the right of appeal.


author: ROBERTS, Judge.

text:
    Bert HAILE, Appellant, v. The STATE of Texas, Appellee.
    No. 55120.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.

      Russell C. Busby, Amarillo, for appellant.
    Andy Shuval, Dist. Atty., Hereford, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from an order of the court revoking appellant’s probation. The trial judge found that the appellant had violated a condition of his probation and sentenced the appellant to three years’ confinement in the Texas Department of Corrections.

The appellant’s sole contention is that the evidence was insufficient to demonstrate a violation of a condition of his probation, and that therefore the trial judge erred in revoking his probation.

The evidence reflects that the appellant was convicted of delivery of a controlled substance on July 23, 1975. The appellant was sentenced to three years. The imposition of appellant’s sentence was suspended and the appellant was placed on probation for three years on July 23, 1975. One of the conditions of the appellant’s probation was that he:

“1. Commit no offense against this or any other state, or the United States.”

On July 8, 1976, a motion to revoke the appellant’s probation was filed. It was filed as Cause No. 2,510. The motion to revoke alleged in part that:

“On or about the 26th day of March, 1976, and during the period of such probation, Defendant violated the terms and conditions thereof in the following respect, to-wit:
“1. In the County of Deaf Smith, State of Texas on or about the 26th day of March, 1976, the Defendant did then and there knowingly and intentionally deliver to Juan Gutierrez, marihuana; weighing more than Vi an ounce against the peace and dignity of the State and in violation of Article 1 of his probated sentence.”

On July 13,1976, a capias was issued for the appellant’s arrest.

On June 1,1976, the appellant was indicted for the offense of delivery of a controlled substance. It was filed as Cause No. 2,650. The indictment alleged the same offense upon which the motion to revoke was based.

On October 4, 1976, a jury found the appellant guilty of the offense of delivery of marihuana. On October 5, 1976, the appellant was sentenced to six years’ confinement. Immediately after the sentencing portion of that trial, the motion to revoke was heard before the same trial judge who had presided during the trial of the underlying charge upon which the motion to revoke was based.

At the motion to revoke, the appellant and the State stipulated that: (1) the appellant had been convicted on July 23, 1975, for delivery of a controlled substance; and (2) the allegations contained in the motion to revoke Cause No. 2,510 were the same as those in the indictment, Cause No. 2,650.

The only witness for the State testified that he was the appellant’s probation officer and that the appellant had been convicted in Cause No. 2,650 for delivery of marihuana.

The sole issue is whether the stipulations and the testimony of the State’s witness prove beyond a preponderance of the evidence that the appellant violated the condition of his probation alleged in the motion to revoke. Keel v. State, 544 S.W.2d 151 (Tex.Cr.App.); Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1970).

We are confronted with a situation where the motion to revoke was heard one day after a jury convicted the appellant of the offense upon which the motion to revoke was based. The trial judge in both cases was the same. The same attorney represented the appellant in both cases.

These facts bring us within the scope of our holdings in Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973); O’Hern v. State, 527 S.W.2d 568 (Tex.Cr.App.1975); and Green v. State, 528 S.W.2d 617 (Tex.Cr.App.1975). However, unlike the foregoing cases, the prosecutor attempted to prove the conviction in Cause No. 2,510, not the commission of the offense upon which the conviction in Cause No. 2,510 was based, to revoke the appellant’s probation. It is clear that the verdict of guilty in Cause No. 2,650 was on appeal at the time of the motion to revoke, and therefore it could not be used to support the revocation. Barrientez v. State, supra.

We have, however, affirmed Cause No. 2,650. Our opinion in that case overrules appellant’s contention that the evidence was insufficient to show the delivery of marihuana by the appellant. The case is therefore analogous to Bailey v. State, 543 S.W.2d 653 (Tex.Cr.App.1976). In Bailey, a hearing on a revocation motion was held concurrently with a trial before the court for felony theft. The evidence of that hearing consisted of a judicial confession and a guilty plea by the defendant in regard to the felony theft. We there stated:

“In the case at bar, the revocation hearing on the trial for the offense of felony theft occurred before the same judge on the same day. Appellant was also represented by the same counsel during the entire course of the proceedings. Green v. State, Tex.Cr.App., 528 S.W.2d 617; Barrientez v. State, Tex.Cr.App., 500 S.W.2d 474. It was not improper for the trial court to revoke the appellant’s probation on the basis of his guilty plea to the offense of felony theft. We overrule the first ground of error.”

Bailey can be interpreted as a case where a conviction, albeit a conviction based on a defendant’s plea of guilty, was used to revoke probation. There, as in the present case, no contest to the sufficiency of the evidence exists.

We therefore hold that the evidence was sufficient and that the trial judge did not abuse his discretion. Appellant’s contention is overruled.

The judgment is affirmed.

ONION, P. J., dissents.

      . The three years was “stacked” by the trial judge to run consecutively to a six-year term imposed by a jury in a related case. See Haile v. State, (Tex.Cr.App.1977); No. 55,173, decided this day in an unpublished per curiam opinion.

      . It should be noted that the trial judge, the Honorable Michael P. Metcalf, asked the prosecutor if he (the prosecutor) wanted the court to take the earlier testimony in Cause No. 2,650 into consideration. The prosecutor’s response was as follows:
      “No, Your Honor. I mean, we have established that he has been convicted of this instant offense in this Court and sentenced therein and I think that shows by the preponderance of the evidence that he is guilty of delivering marihuana, at least that would be my theory, if we were not we will find out.”

      . See note 1, supra.


author: GREEN, Commissioner.

text:
    Hernan Ochoa LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. 55493, 55494.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    Walter G. Weaver, Donna, for appellant.
    Oscar Mclnnis, Dist. Atty., and Robert D. Ralston, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

Appellant waived his right to trial by jury and entered pleas of guilty before the court to two separate indictments each of which charged him with the unlawful delivery of marihuana. Punishment was assessed on May 3, 1976 at imprisonment for three (3) years in each case.

The appeals are before us on two grounds of error. It is first contended that the trial court erred in not disclosing to appellant the contents of a pre-sentence report, thus depriving appellant of the effective assistance of counsel and denying him an opportunity to explain the contents of the report. In his second ground of error appellant contends that the trial court abused its discretion in not granting his application for probation, because the evidence reflected that only a small amount of marihuana was involved in each of these two cases. We overrule these contentions and affirm the judgment of the court below.

In Rodriguez v. State, 502 S.W.2d 13 (Tex.Cr.App.1973), the defendant contended that the trial court erred in denying his motion for probation and then refusing to place in the record the “probation report” upon which apparently the court, at least in part, relied as a basis for the order denying the motion for probation. There we held that, even if the pre-sentence report had been incorporated in the appellate record and this Court, after review, disagreed with the trial court’s denial of the motion for probation, this Court would be without authority to substitute our judgment for that of the trial court. We also observed:

“Nothing in Article 42.12, Vernon’s Ann. C.C.P., requires that the pre-sentence report be disclosed to the accused. In fact the statute is silent in regard to such matter. It would thus appear to be within the discretion of the trial court whether to disclose such report.”

Appellant argues, however, that the recent case of Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), requires that the report be disclosed. In that case the defendant was convicted of first-degree murder and the jury finding that the mitigating circumstances outweighed the aggravating circumstances, returned an advisory verdict recommending to the court that a life sentence be imposed. The trial court, however, after reviewing a pre-sentence investigation report, a part of which was confidential, imposed the sentence of death.

The plurality opinion of Justice Stevens, states that:

“Five members of this Court have now expressly recognized that death is a different kind of punishment than any other which may be imposed in this country. (Citing authorities) From the point of view of the defendant, it is different both in its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”

The opinion then considered the justifications offered by the State for a capital sentencing procedure which permits a trial judge to impose the death sentence on the basis of confidential information not disclosed to the defendant or his counsel, and concluded “that petitioner was denied due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain.”

The separate opinions of Justices White and Blackmun also reflect that their concurrence in the judgment is based on the use by the trial judge of secret information in assessing “the death sentence.” Justice Brennan agreed that “the Due Process Clause of the Fourteenth Amendment is violated when a defendant facing the death sentence is not informed of the contents of a pre-sentence report made to the sentencing judge.” However, he adhered to his previously expressed views that the death penalty constitutes cruel and inhuman punishment, and he dissented to the Court’s judgment remanding the case to the trial court “for further proceedings that could lead to its imposition.”

Gardner is inapposite, as that case appears to apply only where the death penalty is imposed by the trial court after the trial judge reviews a nondisclosed pre-sen-tence investigation report. The instant case was non-capital and appellant made no request prior to the assessment of punishment for disclosure of the pre-sentence investigation report. After appellant’s brief was filed in the trial court, the report was sent in a sealed envelope to this Court. We have examined it and find nothing therein which was not shown in evidence at the trial that would have been harmful to appellant at the punishment stage. Appellant testified that he had been previously convicted of the felony offense of possession of marihuana. The punishment assessed in the instant case was three years. We conclude that error is not presented, and the first ground of error is overruled.

Next, appellant contends that the trial court erred in not granting his application for probation. However, when the trial is before the court and a motion for probation is filed, the trial judge has the absolute and unreviewable discretion either to refuse or to grant probation. Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977); Zubia v. State, 543 S.W.2d 389 (Tex.Cr.App.1976); Rodriguez v. State, supra.

The judgments are affirmed.

Opinion approved by the Court.

      . However, see Acts of the 65th Leg., Chapter 47, H.B. No. 97 effective April 5, 1977, amending Sec. 4, Art. 42.12, V.A.C.C.P., which provides as follows:
      “Section 1. Section 4, Article 42.12, Code of Criminal Procedure, 1965, is amended to read as follows:
      “Sec. 4. When directed by the court, a probation officer shall fully investigate and report to the court in writing the circumstances of the offense, criminal record, social history and present condition of the defendant. Whenever practicable, such investigation shall include a physical and mental examination of the defendant. Defendant, if not represented by counsel, counsel for defendant and counsel for the state shall be afforded an opportunity to see a copy of the report upon request. If a defendant is committed to any institution the probation officer shall send a report of such investigation to the institution at the time of commitment.”


text:
    Samford TUCKER, Appellant, v. The STATE of Texas, Appellee.
    No. 55549.
    Court of Criminal Appeals of Texas.
    Oct. 19, 1977.
    Walter L. Irvin, Dallas, for appellant.
    Tom O’Connell, Dist. Atty., Verla Sue Holland and George E. Gasper, Asst. Dist. Attys., McKinney, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before the court appellant was convicted of theft of property of the value of $200 or over and less than $10,000. Punishment was assessed at ten years.

In his first ground, appellant complains of error of the court “in not fully admonishing defendant as to the consequences of his plea of guilty.” Appellant’s entire discussion and argument under this ground are contained in one short paragraph, which reads as follows:

“The Court did not admonish the Defendant ‘that if he persist his plea of guilt and if the evidence shows the Defendant to be guilty then he must find Defendant guilty.’ (Defendant’s Quote) This statement from the Court is required to fully explain to the Defendant the essence of his plea (See R.). The failure of the Court to give the Defendant this warning constitute reversible error.”

The trial was conducted October 25, 1976, after the amendment of Art. 26.13, V.A.C.C.P., effective June 19, 1975. In addition to the other admonishments given appellant in compliance with the statute, including the statutory range of punishment, the court, in accepting the plea of guilty, stated to appellant that it would “find you guilty on the plea if the evidence presented proves you guilty, and will then assess your punishment somewhere in the range provided by law.” Although the above statement is not included in the admonishments required by Art. 26.13, V.A.C.C.P, as amended, it reflects that the complaint of appellant as set forth in his argument under his first ground is wholly without merit on the facts.

Our review of the court’s admonishments reflects substantial compliance with the provisions of Art. 26.13, V.A.C.C.P. Appellant makes no contention that he was not aware of the consequences of his plea or that he was misled or harmed by the admonishments of the court. The first ground of error is overruled.

In his second ground, appellant alleges the indictment to be fatally defective. We quote his entire argument thereunder as follows:

“The indictment purports to be one wherein the State seeks to aggregate the amounts to enhance the grade of the offenses. The indictment is fundamentally defective in that it does not identify the sources of the theft.
“Further the indictment fails to plead sufficiently the nature of the scheme or continuing course of conduct in a manner to appropriately put Defendant on notice in order to properly prepare a defense.”

No motion to quash was filed in the trial court, and this complaint is made for the first time on appeal.

The indictment alleges that appellant, on the following dates in April, 1976, did then and there

“knowingly and intentionally and with intent to deprive Richard Mallett, the owner, unlawfully obtain property other than real property, as follows, to-wit:
“on or about the 10th day of April, 1976, 40 sheets of ⅜ inch plywood at a value of One Hundred Fifty Dollars ($150.00)
“on or about the 17th day of April, 1976, 47 sheets of ⅜ inch plywood at a value of One Hundred Seventy-Six Dollars and twenty-five cents ($176.25)
without the effective consent of Richard Mallett, the owner, thereof, and with intent to deprive Richard Mallett, of said property and all said amounts were obtained, as alleged, in one scheme and continuing course of conduct, and the aggregate amount of the amounts stolen was of a value of more than Two Hundred Dollars and less than Ten Thousand Dollars.”
V.T.C.A. Penal Code, Sec. 31.09, provides: “When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense.”

As stated in Texas Annotated Penal Statutes with Forms, Branch’s 3rd Ed., Sec. 31.09, page 521,

“This section represents a rather radical departure from our present law. Even though the thefts are committed from different persons, if they are done in ‘one scheme or continuing course of conduct,’ it may be considered as one offense and the amounts aggregated in determining the grade of the offense. The basis for the reasoning here is that the appropriate penal section is not necessarily determined by the amount one steals at a single moment from a single person.
“This will provide a more realistic punishment for the person selling tickets to nonexistent functions.”

See also Practice Commentary under Section 31.09 at p. 571 of V.T.C.A. Penal Code, Vol. 3, which states in part:

“The common law restricted the scope of a theft to a single victim and a single time and place; if more than one victim or more than one time was involved, more than one theft was committed. The Texas Court of Criminal Appeals relaxed the common-law requirements only slightly in stating that ‘When several articles or things in bulk are taken by continuous acts, there being one purpose, one impulse, the act is one without regard to time,’ Cody v. State, 31 Tex.Cr.R. 183, 20 S.W. 398 (1892).
“This section represents a more substantial departure from the common law. It provides that, if an actor adopts and pursues a single ‘scheme or continuing course of conduct’ for acquiring property or services in a manner that constitutes theft, he may be convicted of a felony even though he is careful to limit the theft from each individual or at each time and place to a misdemeanor amount. This provision reflects the determination that the reprehensibility of an actor, and thus the appropriate penal sanction, is not necessarily determined by the amount he steals at a single moment from a single person. A swindler who sells 1,000 one dollar tickets to a nonexistent charitable function, for example, evidences the same disrespect for property rights as the embezzler who takes $1,000 from his employer or the car thief who steals a $1,000 automobile. Each intends to acquire valuable property illegally, and although the swindler harms no individual victim significantly, his harm to society is as great as that of the embezzler and the car thief. Of course, the prosecution will have to allege and prove each separate ‘offense,’ but the value of several items can now be combined for jurisdictional and punishment purposes.”

Although the offense was committed after V.T.C.A. Penal Code, Sec. 31, was amended, the indictment alleged its commission in the terms of Sec. 31.03(a)(1)(b)(1) prior to the amendment in 1975. (See footnote 1) It alleged that appellant knowingly and intentionally with intent to deprive the named owner of the described property unlawfully “obtained” said property without the effective consent of the named owner. No objection or motion to quash was made in the trial court.

In American Plant Food Corporation v. State, Tex.Cr.App., 508 S.W.2d 598, 604, we stated:

“Only if the defect [in the indictment] be of such a degree as to charge no offense against the law, and thereby be void, will the exception to substance be considered for the first time on appeal under Article 27.08(1), supra [V.A.C.C.P.].” See also Thornton v. State, Tex.Cr.App., 529 S.W.2d 539; Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590.

Although the indictment alleged appellant unlawfully “obtained” the property, it alleged further that this was without the effective consent of the owner and was with the intent to deprive the owner of the property. Sec. 31.03 as it was in effect at the time of the offense provides that a person commits theft if he unlawfully “appropriates” property with intent to deprive the owner thereof, and states further that “appropriation” is unlawful if it is without the owner’s effective consent. Sec. 31.01 of the Code defines “obtain” as “means to bring about a transfer or purported transfer of a nonpossessory interest in property, whether to the actor or otherwise.” In Webster’s Seventh New College Dictionary the verb “appropriate” is defined “to take without permission.” We hold that the distinction, if any, between “unlawfully obtained” and “unlawful appropriation” is insufficient to cause the indictment to fail to charge the offense of theft under the amended Sec. 31.03, supra, and that the indictment, in the absence of an exception or motion to quash in the trial court, sufficiently charges appellant with the offense of theft.

As to the description and value of the stolen property, the indictment alleges two acts constituting theft occurring on different dates, each with a value of less than $200, but with an aggregated value in excess of $200, and also alleges, as provided in Sec. 31.09, supra, that

“all of said amounts were obtained, as alleged, in one scheme and continuing course of conduct.”

Appellant’s contention is that the indictment is fundamentally defective because it (1) does not identify the source of the theft, and (2) it fails to plead sufficiently the nature of the scheme or continuing course of conduct in a manner to appropriately put him on notice in order to properly prepare a defense. His contention is without merit. We hold that the allegations in the indictment sufficiently allege the offense of third degree felony theft in accordance with V.T.C.A. Penal Code, Sec. 31.03, considered along with Sec. 31.09, supra, and that it was not necessary to plead further either the identity of the source of the theft or the nature of the scheme or continuing course of conduct. See Morrison and Blackwell’s Texas Practice, Criminal Forms, Eighth Edition, Vol. 7, Sec. 1.33, p. 28, “Aggregation of Amounts”; Texas Annotated Penal Statutes With Forms, Branch’s Third Edition, Vol. 2, Sec. 31.09, p. 521.

Appellant’s second ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . “Sec. 31.03. Theft
      “(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.
      “(b) Appropriation of property is unlawful if: “(1) It is without the owner’s effective consent, or . .
      As amended by Acts 1975, 64th Leg., p. 914, Ch. 342, Sec. 10, eff. September 1, 1975.
      Sec. (d)(4) makes the offense a third degree felony where the value of the property stolen is $200 or more but less than $10,000 and also in other instances not relevant to this case.


author: COULSON, Justice.

text:
    STOP ’N GO MARKETS OF TEXAS, INC., Appellant, v. EXECUTIVE SECURITY SYSTEMS, INC. OF AMERICA, Appellee.
    No. 1632.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 14, 1977.
    Rehearing Denied Oct. 31, 1977.
    Frank G. Jones, Fulbright & Jaworski, Houston, for appellant.
    John A. Berke, Jr., Berke & Associates, Houston, for appellee.
   COULSON, Justice.

This is an appeal from a declaratory judgment that the appellant, Stop ’N Go Markets of Texas, Inc. (Stop ’N Go), was obligated to indemnify the appellee, Executive Security Systems, Inc., of America (Executive), for all liability the appellee incurred as a result of an action then pending against both of them. Since that judgment was an advisory opinion beyond the court’s power and jurisdiction, we vacate it.

Executive provided security protection for a number of Stop ’N Go’s convenience stores. On September 17, 1974, a guard furnished by Executive to Stop ’N Go store number 443 shot Eugene Fields, a customer of that store. Shortly thereafter Fields filed suit for his injuries against the guard, Executive, and Stop ’N Go. Approximately six weeks after that suit was filed, and while it was still pending, Executive instituted a separate action against Stop ’N Go seeking declaratory relief in the form of a construction of a contract allegedly entered into by Executive and Stop ’N Go. Executive sought a declaration that under the terms of that agreement Stop ’N Go was required to indemnify and save Executive harmless from all liability it might incur in the Fields case. The trial court found that as a result of the contract Executive was the agent of Stop ’N Go as to security services, that Stop ’N Go was bound to indemnify Executive, and granted an instructed verdict for Executive.

Under the Texas Constitution the judicial power does not include the giving of advisory opinions. E. g. United Services Life Insurance Company v. Delaney, 396 S.W.2d 855 (Tex.Sup.1965); Alamo Express v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958). Before a declaratory judgment action will lie, there must be an existing justiciable controversy between the parties. California Products, Inc. v. Purtex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); Jones v. Young, 541 S.W.2d 200 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). A justiciable controversy does not exist and an advisory opinion is being sought if a party requests a court to render a declaratory judgment premised upon the happening of a future, hypothetical event. The possibility that liability triggering indemnity will be incurred in a pending action is a future hypothetical event within the meaning of this rule. See Firemen’s Ins. Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.Sup.1968); Sub-Surface Const. Co. v. Bryant-Curington, Inc., 533 S.W.2d 452 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.). Here, the “controversy” between Executive and Stop ’N Go as to indemnity hinges on a finding in the Fields case that Executive is liable for the guard’s action. That initial liability, crucial to the existence of the requisite controversy, is, however, speculative, and in asking the court to construe its contract with Stop ’N Go, Executive was asking for an advisory opinion.

The fact that the indemnity issue may eventually have to be litigated is immaterial. The proper vehicle for determining that matter is a cross-claim by Executive against Stop ’N Go in the Fields case under Tex.R.Civ.P. 97(e), or if Fields is successful against Executive in that suit, then by a separate suit by Executive against Stop ’N Go. Such an approach upholds the principle that the Declaratory Judgment Act was not intended to provide for the “piecemeal” trial of lawsuits, United Services Life Insurance Company v. Delaney, 396 S.W.2d 855 (Tex.Sup.1965), and the rule that a declaratory judgment is not proper if there is pending, at the time it is filed, another action or proceeding between the same parties and in which may be adjudicated the issues involved in the declaratory action. Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891 (Tex.Sup.1970); Furr v. Hall, 553 S.W.2d 666 (Tex.Civ.App.—Amarillo 1977, no writ).

The judgment of the trial court is vacated.

CIRE, J., not participating.


author: CIRE, Justice.

text:
    NATIONAL STANDARD INSURANCE COMPANY, Appellant, v. WILSON INDUSTRIES, INC., Appellee.
    No. 1700.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 21, 1977.
    Rehearing Denied Oct. 31, 1977.
    George A. Rustay, Richard W. Ewing, Schleider & Ewing, Houston, for appellant.
    Henry P. Giessel, Alice Giessel, Talbert, Giessel & Stone, Houston, for appellee.
   CIRE, Justice.

Defendant appeals from a directed verdict granted in plaintiff’s favor. The basis of this suit stems from the sinking of a vessel known as the “Little Bubba” or “Little Bubber” on April 26,1970. Plaintiff-ap-pellee Wilson Industries, Inc. was the insured under a comprehensive general liability policy issued by defendant. Plaintiff-ap-pellee was sued in the Federal District Court for the Eastern District of Louisiana by the owner of the sunken vessel. Appellant denied coverage and defense of that suit on the basis of policy exclusions. An out of court settlement for $47,500.00 was reached in the federal suit between the owner and appellee. Appellee instituted this suit to recover the amount of the settlement and costs of defense in the Louisiana suit.

Plaintiff’s original petition alleged that the insurance policy providing comprehensive general liability coverage was in full force and effect on April 26, 1970, the date of the sinking. The policy provided a maximum of $100,000.00 property damage liability for each occurrence. The policy additionally provided that the defendant would defend liability suits brought against the plaintiff, but the defendant denied coverage on the owner’ claim. As a result, plaintiff employed its own attorney to defend the suit and alleged approximately $10,-000.00, plus interest, as reasonable attorney’s fees. Thus the plaintiff, in the original petition, sought to recover $47,500.00, attorney’s fees, interest, and other defense costs.

Defendant-appellant’s denial of coverage was based on an exclusionary clause in the insurance contract. The exclusion reads:

(i)(3) property in the care, custody or control of the insured or as to which the insured is for any purpose exercising physical control .

The trial court ruled that, as a matter of law, no factual issues existed and the exclusionary clause was inapplicable.

Appellant’s first four points assert error by the trial court in granting plaintiff’s motion for directed verdict. We overrule these points.

The agreement between the ship owner and the appellee was in the form of an oral time charter which is defined thusly:

The vessel is chartered or “leased” to the charterer for a fixed period of time. Custody and control remains with the vessel owner. The vessel owner hires, pays and is the employer of the master and crew. The owner pays all of the operating expenses of the vessel and the time charterer merely has the use of the vessel in return for his payment of the charter hire.

1. J. Norris, The Law of Maritime Personal Injuries § 130, at 245, 246 (3d ed. 1975). In preparation for the work involved, the appellee had certain tools welded on the deck of the vessel and it was the duty of the appellee’s crew to install bumpers upon an oil well platform in the Gulf. It is clear that the vessel was to be utilized as a platform by the appellee’s crew to perform their duties. The vessel, however, remained under the captain’s supervision and control.

The applicable rule when examining a “care, custody or control” clause was stated in Goswick v. Employers’ Casualty Co., 440 S.W.2d 287 (Tex.Sup.1969) and distinguishes between tools under the physical control and items merely incidental to the intended duty. In Goswick, the insured was in the oil well servicing business and was hired to change an underground pump. It was necessary for the insured to remove rods and tubing from the well and, during that process, an explosion caused the tubing to drop to the bottom of the hole thus causing extensive damage to the well. Insurer denied coverage of the well on the basis of a “care, custody or control” exclusion. The court stated:

This is the language of the traditional manufacturers’ and contractors’ comprehensive liability policy form. If the insured under such a policy is repairing or installing item # 1 adjacent to item # 2 and within the premises of a building, when his negligence causes damage to items # 1 and # 2, as well as to the building, the exclusion denies coverage only as to that property damaged which was within his possessory control. The cases have limited this “control” to the particular object of the insured’s work, usually personalty, and to other property which he totally and physically manipulates.

440 S.W.2d at 289. The court determined that the insured had complete physical control over the rods and tubing which were a necessary element of the work involved but did not have direct control over the well. The well was merely incidental to the insured’s specific task.

The court in Goswick cited with approval the case of Maryland Casualty Co. v. Hopper, 237 S.W.2d 411 (Tex.Civ.App.—El Paso 1950, no writ) which involved a tank explosion:

Though the tank connection and valves were used for the purpose of accomplishing the work, . . . the tanks themselves were incidental to the construction and not within the care, custody or control of the insured.

Goswick v. Employers’ Casualty Co., 440 S.W.2d at 290. Here, as in the Maryland Casualty decision, the vessel, although used for accomplishing the work, was not within the care, custody or control of the insured.

Appellant’s fifth point of error complains that the trial court erroneously struck paragraph five from appellant’s answer. The objectionable paragraph, however, alleged prior and contemporaneous negotiations which would vary the clear and express language of the insurance policy and was properly stricken by the court. The parol evidence rule prohibits the introduction of such negotiations into evidence in the absence of fraud, accident or mistake. Board of Regents of State Teachers Colleges of Texas v. Goetz, 453 S.W.2d 290 (Tex.Sup.), cert. denied, 400 U.S. 807, 91 S.Ct. 43, 27 L.Ed.2d 36 (1970).

Appellant’s sixth point of error has been considered and is overruled.

The judgment of the trial court is affirmed.


text:
    Jean A. GAGLIARDI, Appellant, v. Robert W. WOOD et al., Appellees.
    No. 1650.
    Court of Civil Appeals of Texas, 14th District.
    Sept. 21, 1977.
    Rehearing Denied Oct. 31, 1977.
    John F. Vecchio, Houston, for appellant.
    Sam W. Cruse, Jr., Merrick C. Walton, Andrews, Kurth, Campbell & Jones, Houston, for appellees.
   CIRE, Justice.

This is a medical malpractice case. At the conclusion of the plaintiff’s case, upon motion by the defendants, the trial court withdrew the case from the jury and granted judgment for the defendants. Plaintiff appeals.

Appellant Jean A. Gagliardi brought this suit against appellees Dr. Robert W. Wood, Dr. John K. Dozier, and Dr. Thomas D. Franklin, alleging she was damaged by their medical malpractice. Her first amended petition stated that she retained Dr. Dozier to treat her for a fractured thigh bone and that he performed surgery on appellant, attaching a plate to her thigh bone with nine screws; this operation left a scar running almost the entire length of her thigh. Thereafter, two of the screws partially pulled out of the plate, causing appellant pain. Dr. Dozier again operated on appellant and removed the plate. During this second operation Dr. Wood, a plastic surgeon, revised the scar left by the original surgery; he cut away old scar tissue and removed excess fat.

Appellant alleged the resultant scar was unsightly and had holes and bumps in it. She claimed: (1) Dr. Dozier was negligent in failing to use other means of treatment and in failing to use proper care in attaching the plate, that this negligence required a second operation, and that it was a proximate cause of her disfiguring scar; (2) Dr. Wood did not exercise the proper care of a specialist in plastic surgery because he was not present while Dr. Dozier was operating and failed to properly revise the scar; (3) appellees assured her they would use due care and observe proper rules of medical practice, warranted she would be benefited by their treatment, and warranted they would use proper procedures and beneficial materials and that they breached these warranties; and (4) none of the appellees told her that her fracture could be treated by traction or without a plate, nor did they tell her that this plate might have to be removed, or that she would have this scar or that this scar would be unsightly, with holes, indentations, and bumps after plastic surgery, or that she might need additional plastic surgery. Appellant claimed the negligence of appellees caused her pain, embarrassment over the scar, and expenses for treatment, and prayed she be awarded damages of $150,000.

Dr. Dozier, Dr. Wood and the plaintiff were the only witnesses to testify. There was no testimony by or about Dr. Franklin, the plaintiff apparently having abandoned any claim against him.

On appeal, appellant attacks the withdrawal of the case from the jury by one point of error, asserting that the evidence raised material issues of fact which should have been submitted to the jury for determination. In deciding this point, we consider the evidence in its light most favorable to plaintiff-appellant. Echols v. Wells, 510 S.W.2d 916, 919 (Tex.Sup.1974).

To present a medical malpractice case for jury determination:

The burden of proof is on the patient-plaintiff to establish that the physician-defendant has undertaken a mode or form of treatment which a reasonable and prudent member of the medical profession would not have undertaken under the same or similar circumstances .... Unless the mode or form of treatment is a matter of common knowledge or is within the experience of the layman, expert testimony will be required to meet this burden of proof.

Hood v. Phillips, Tex., 554 S.W.2d 160, 165-166 (1977). The defendant physicians may themselves be the experts to establish the standard of care. Wilson v. Scott, 412 S.W.2d 299, 303 (Tex.Sup.1967).

Appellant’s first allegations, that Dr. Dozier was negligent in failing to use other means of treatment and in improperly setting the plate, were not supported by any expert medical testimony. Dr. Dozier’s testimony tended to establish that implanting a plate was a customary and medically sound procedure. There was no evidence presented which points to a different conclusion. Nor was there any evidence that the plate and screws were placed improperly. The only testimony on this procedure was given by Dr. Dozier, who said that even properly set screws sometimes will back out.

Appellant also failed to present any evidence to support her averments that Dr. Wood was negligent in not exercising proper care in revising the scar and in failing to be present at the beginning of the surgery when the plate was removed. There was no medical testimony that the revision of the scar was improperly performed or that a plastic surgeon who was to revise and sew up a scar after removal of a plate should have been present during its removal.

There is no support in the evidence for appellant’s allegations that appellees breached their warranties that they would use due care in performing the operation and would observe proper medical practice, that she would be benefited by the treatment, and that they would use proper procedures and beneficial materials. There was no expert testimony tending to establish that the treatment was not beneficial to appellant or that appellees failed to use due care or follow proper procedures.

Appellant made numerous allegations that she was not given sufficient information upon which she could base an informed consent to the operation. We find that she has not presented the evidence necessary to take the issue of informed consent to the jury. In such an action:

. [T]he plaintiff had the burden to prove by expert medical evidence what a reasonable medical practitioner of the same school and same or similar community under the same or similar circumstances would have disclosed to his patient about the risks incident to a proposed diagnosis or treatment, that the physician departed from that standard, causation, and damages.

Wilson v. Scott, 412 S.W.2d 299, 302 (Tex.Sup.1967).

Appellant alleged that Dr. Dozier did not tell her the fracture could be treated by traction or without a plate. Dr. Dozier testified that it would be standard practice to explain that traction could be used but that it involved complications and that this was explained to her. Appellant offered no testimony that she was not given this explanation.

She also alleged that Dr. Dozier did not tell her the plate might have to be removed in another operation. Dr. Dozier testified that it was standard practice and his habit to explain that about half the patients who have a plate might require another operation. Appellant’s own testimony established that Dr. Dozier told her if the plate bothered her, it would have to be removed.

Appellant testified that had she known about the pulling of the muscles in the area of surgery or the protrusion of stitches, she would not have had the plastic surgery. Dr. Wood did testify that it would be standard practice to inform the patient about the pulling of the muscles in this area; that this was a notorious part of the body for healing and she would have to be very diligent about following his instructions. There was, however, no medical testimony establishing that the pulling of the muscles caused any of the unsightliness, holes or bumps of which appellant complained. In fact the medical testimony was that appellant did follow the doctor’s instructions and the operation was a successful one.

The record is completely devoid of medical testimony regarding the protruding stitches. Dr. Wood and Dr. Dozier did not testify as to any standard for disclosure of this risk, nor was there any testimony on causation. The hospital records reveal that in the second operation the inner layers of skin were sutured by Dr. Dozier and the outer layers by Dr. Wood. There is nothing to indicate which stitches were protruding.

Although not specifically pled, appellant complained during trial of Dr. Wood’s failure to inform of the possibility of her developing fat necrosis. There was, however, no evidence that she had fat necrosis. Dr. Wood’s opinion was that she had cellulitis rather than fat necrosis.

Next, she alleged that none of the appel-lees told her she might need additional plastic surgery. Dr. Wood replied in the negative when asked whether it would be proper practice to advise a patient before this type of plastic surgery that further revision of the scar might be necessary.

Finally appellant complains of the failure of Drs. Wood and Dozier to explain to her before the second operation that she would have to be on crutches for three weeks after the operation and wear an ace bandage. This was not a risk incident to the treatment. It was part of the treatment. The record discloses that such treatment was prescribed by the doctors, either before, according to Dr. Wood’s testimony, or after the operation, as stated by appellant, but in any event, it was prescribed, the patient followed the doctor’s instructions, and a medically successful result was obtained.

The judgment is affirmed.


text:
    Ray HARDY, District Clerk, Appellant, v. CONSTRUCTION SYSTEMS, INC., Appellee.
    No. 1646.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 21, 1977.
    Rehearing Denied Oct. 31, 1977.
    Joe Resweber, County Atty., Michael R. Davis, Asst. County Atty., Harris County, Houston, for appellant.
    William A. Peterson, Jr., Lapin, Totz & Mayer, Houston, for appellee.
   COULSON, Justice.

This is an appeal by Ray Hardy, the district clerk of Harris County, from an order which permitted Construction Systems, Inc. to garnish money held in the registry of the court of which Hardy was clerk. Since the judgment ordering Hardy to distribute the money in question was final at the time garnishment was sought, the funds were no longer in custodia legis and garnishment was proper. We affirm.

In a judgment entered December 19,1975 the 164th Judicial District Court ordered the district clerk, Hardy, to pay Houston Drywall Systems, Inc. (Drywall) $9,448.37 out of a fund which had been interplead and deposited with the court. Construction Systems, Inc., a judgment creditor of Drywall, sought to garnish part of that award and named Hardy as garnishee. That garnishment was held premature by the Court of Civil Appeals for the First Supreme Judicial District on the grounds that the judgment awarding Drywall its part of the in-terplead funds had not become final at the time garnishment was sought. Houston Drywall, Inc. v. Const. Systems, Inc., 541 S.W.2d 220 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ). Following that decision, and after the judgment awarding Drywall the money had become final, Construction Systems, Inc. instituted a second garnishment action, the subject of this appeal.

Hardy asserts that a writ of garnishment will never lie against funds deposited with the clerk of a court. That is undoubtedly the rule announced in two early Texas Supreme Court decisions. Curtis v. Ford, 78 Tex. 262, 14 S.W. 614 (1890); Pace v. Smith, 57 Tex. 555 (1882). While those cases have never been specifically overruled, this court is convinced that they no longer correctly express the law of this state. The rule currently followed, and the one applicable to this case, is that property in custodia legis is not subject to garnishment, but that the exemption ceases when a court has entered a judgment ordering the distribution of that property and nothing remains for the custodian to do but make delivery or payment to the person entitled. Houston Drywall, Inc. v. Const. Systems, Inc., 541 S.W.2d 220 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Southwestern Bell Telephone Company v. Watson, 413 S.W.2d 846 (Tex.Civ.App.—Corpus Christi 1967, no writ); Challenge Co. v. Sartin, 260 S.W. 313 (Tex.Civ.App.—Dallas 1924, no writ). This follows from the principle that after a person’s right to property in custo-dia legis has become absolute, his ownership fixed and determined, then garnishment of that property will be allowed. Leroux v. Baldus, 13 S.W. 1019 (Tex.Sup.1890); see Turner v. Gibson, 151 S.W. 793 (Tex.Sup.1912). The final judgment of a court ordering the clerk to distribute money to a litigant clearly has the effect of fixing and determining the litigant’s right to, and ownership of, that money.

Further, it has been held that the purpose of the rule precluding the garnishment of property in the custody of the law is not to protect the party entitled to the property, but to preserve the jurisdiction of the court administering the property and prevent conflicts of jurisdiction with other courts. Turner v. Gibson, 151 S.W. 793 (Tex.Sup.1912); Southwestern Bell Telephone Company v. Watson, 413 S.W.2d 846 (Tex.Civ.App.—Corpus Christi 1967, no writ). When, as here, a court has entered a judgment ordering the distribution of funds in its registry and time has passed sufficient to render the judgment beyond the court’s power to set aside, modify, or amend, then the court has lost subject matter jurisdiction over the funds, and the justification for the rule precluding garnishment no longer exists. Moreover, it would seem to be inappropriate to describe funds in the registry of the court as being in custodia legis after subject matter jurisdiction has ceased. Instead, they should be viewed as being held by the clerk in trust for the one found to be entitled to them. See Sellers v. Harris County, 483 S.W.2d 242 (Tex.Sup.1972).

We are aware that permitting garnishment actions against the clerk of a court subjects him to a certain amount of inconvenience and risk. It is, however, no greater than that encountered by any garnishee, and we see no reason why a clerk should be given a preferred position, or debtors’ funds find sanctuary in his possession.

Affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    D. B., Appellant, v. STATE of Texas, Appellee.
    No. 1583.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    Sept. 21, 1977.

      Jerry Benedict, Angleton, for appellant.
    Ogden Bass, Crim. Dist. Atty., A. B. Crowther, Asst. Crim. Dist. Atty., Angleton, for appellee.
   J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment that the appellant was a child engaged in delinquent conduct. The conduct alleged to be delinquent was the forging of a check.

On July 8,1976, D. B. (appellant) presented a check at Benedict’s Super Market (Benedict’s), a grocery business located in Sweeny, Texas. The check, drawn on Sweeny Bank, was made payable to the order of the appellant’s mother in the amount of $57.50. The check contained signatures purporting to be those of appellant’s stepfather, as drawer, and appellant’s mother, as endorser and payee. Upon presentation of the cheek, Bill Fears, the owner of Benedict’s gave appellant $57.50 in cash. Benedict’s stamped the check “for deposit only” and presented it to Sweeny Bank for payment. Sweeny Bank later returned the check to Benedict’s, bearing the notation that the signatures of appellant’s mother and stepfather were irregular.

A detention hearing was held on August 2, 1976, in connection with an unrelated criminal act allegedly committed by the appellant. The appellant and his mother were present at the hearing, and an attorney was appointed to represent the appellant for the duration of that hearing. At the conclusion of the hearing, the appellant was ordered detained pursuant to section 54.01(h) of the Texas Family Code for a period not to exceed ten days. During that ten day detention period, the appellant was not represented by an attorney, nor was a guardian ad litem appointed to look after appellant’s interests.

At some time between August 2, 1976, and August 8,1976, appellant’s mother filed charges against the appellant for forging the cheek in question. On August 8, 1976, during the initial ten day detention period, appellant was questioned by the chief of police of the Sweeny Police Department concerning forgery of the check. The appellant made an oral statement to the chief of police at that time. Between 9:00 and 10:00 o’clock on the morning of August 9, 1976, also during the initial ten day detention period, the appellant was again questioned by the chief of police. Appellant agreed to give the chief of police a written statement later that afternoon. At 6:00 o’clock in the afternoon the chief of police resumed his questioning of the appellant. Appellant agreed to make a written confession and was then taken before a magistrate, where he was warned of his rights by the magistrate at 6:20 p. m. with no law enforcement officer or prosecuting attorney present. The appellant returned to the office of the chief of police at approximately 6:30 p. m., where he made a written statement. The appellant was again taken before the magistrate where, with no law enforcement officer or prosecuting attorney present, he signed the written confession at 7:30 p. m. The confession contained the statement that the appellant knowingly, intelligently and voluntarily waived the rights given to him by section 51.09(b) of the Texas Family Code, including the right to have an attorney present to advise him during questioning.

At some point subsequent to the expiration of the ten day detention period, another detention hearing was held. The same attorney who represented appellant at the first hearing was appointed to represent him at the second hearing. The record does not reflect the outcome of that second hearing. There is nothing in the record to indicate whether the court ordered the appellant released from detention or detained for a further period of time. The appellant was detained, nevertheless, beyond the initial ten day detention period.

A summons to appear at an adjudication hearing was served upon the appellant on August 17, 1976, while he was being detained beyond the initial ten day detention period. That same day, the trial court appointed as attorney for appellant, for purposes of the adjudication hearing, the same attorney who had represented the appellant at both detention hearings. The appointed attorney filed his waiver of ten days to prepare for trial on August 19, 1976. The adjudication hearing, accordingly, was held on August 19,1976, and the court ruled that the appellant was a child engaged in delinquent conduct. At the disposition hearing on August 23, 1976, the appellant was committed to the custody of the Texas Youth Council.

Appellant asserts by his first point of error that the adjudication that he was a child engaged in delinquent conduct should be reversed and the case remanded for a new trial because the trial court erred in not appointing an attorney to represent appellant during his detention period. Appellant contends that the failure of the court to appoint an attorney during his detention was a deprivation of due process of law. In this connection, appellant contends that because his mother was the complaining witness against him, because his stepfather did not visit him until after the initial ten day detention period had elapsed, and because he was without an attorney or guardian ad litem during the period of his detention from August 2, 1976, to the date of the second detention hearing and between the second detention hearing and August 17, 1976, the appellant was without the protection of a person concerned with his interests. Appellant also claims, in this regard, that he was illegally detained from the expiration of the first detention order on August 12, 1976, until his trial on August 19, 1976. Appellant contends that the failure of the trial court to appoint an attorney during his detention violated his right to due process of law under the United States Constitution, and was harmful to him in two respects.

Appellant argues, firstly, that the failure to provide him with an attorney during his detention effectively denied him the right to seek habeas corpus relief from the illegal detention during the period of August 12,1976, to August 19,1976. We do not accept appellant’s allegations that no additional detention hearing was held during that period. Appellant’s Motion to Dismiss for Failure to Appoint an Attorney states that the trial court had appointed the appellant’s attorney to represent the appellant in two separate detention hearings. There is further evidence in the Transcript and Statement of Facts that a second detention hearing was held. The record does not reflect, however, that following the second detention hearing a detention order was entered in accordance with the requirements of section 54.01 of the Texas Family Code. We agree with appellant, therefore, that his detention from August 12, 1976, to August 19, 1976, was unlawful.

While we do not condone the unlawful detention of the appellant beyond the initial ten day period, the record does not show and the appellant does not contend that his inability to seek habeas corpus relief contributed in any way to the finding by the trial court that the appellant was a delinquent child. Neither does it appear from the record that the illegal detention affected in any way the appellant’s rights in this appeal. Even if we were to accord the appellant all the rights and privileges that he would have as an adult in a criminal proceeding, we still would conclude that the appellant is not entitled to a reversal and a remand of the case because he was illegally confined. If a conviction is not based upon the fruits of an illegal detention, the mere fact that the illegal detention occurred will not invalidate the subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (defendant detained pending trial without a determination of probable cause); Johnson v. State, 548 S.W.2d 700 (Tex.Crim.App.1977) (defendant illegally arrested). We note that the appellant made his confession during the initial ten day detention period, and not during the period of illegal detention. The failure of the trial court to appoint an attorney for appellant was not harmful error just because the appellant was thereby effectively denied the right to seek habeas corpus relief.

Appellant also contends that the failure of the trial court to appoint an attorney for him during the detention period harmed him because he was induced to make a written confession without the assistance and advice of counsel. We note at this point that the appellant was given two detention hearings. He was represented by able and competent counsel at both hearings. The same attorney who represented the appellant at both detention hearings was appointed to represent him, for purposes of the adjudication hearing, within a few days after the second detention hearing. At the adjudication hearing, appellant’s attorney was also appointed guardian ad litem for appellant, and he has served the appellant in both capacities at the adjudication hearing, at the disposition hearing and during the prosecution of this appeal. The appellant contends, nevertheless, that he was deprived of due process of law because, at the time that he confessed to forging the check, he was not represented by counsel.

Before Texas’ adoption of the Family Code in 1973, courts could receive a minor’s confession even in the absence of an attorney or other adult interested in the minor’s welfare. B. L. C. v. State, 543 S.W.2d 151 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.). When the Family Code became effective on September 1, 1973, section 51.09 required the presence of an attorney before a minor could make a confession. As a result, the number of confessions by minors decreased significantly. Id. The Family Code was amended, however, so that as of September 1, 1975, a minor need no longer have an attorney present in order to make a confession, so long as the requirements of section 51.09(b) are complied with. Id.

The appellant was well represented by counsel at every significant stage of the proceedings against him except when he waived the right to counsel pursuant to section 51.09(b) of the Texas Family Code and made his confession. His rights were adequately safeguarded in compliance with the requirements of the Family Code. We cannot say, therefore, that the failure of the court to appoint an attorney to represent appellant during the entire period of the appellant’s detention constituted harmful error. We do suggest that in the future counsel for juveniles not be appointed in such a piecemeal fashion. The interests of a juvenile would be better protected if counsel were appointed at the preliminary stage of proceedings against the juvenile and representation continued until the termination of those proceedings.

Appellant asserts by his second point of error that the trial court erred in overruling his motion to suppress the confession. Appellant claims that the confession did not satisfy the requirements of section 51.09(b) of the Family Code, which states:

Notwithstanding any of the provisions of Subsection (a) of this section, the statement of a child is admissible in evidence in any future proceeding concerning the matter about which the statement was given if:
(1)when the child is in a detention facility or other place of confinement or in the custody of an officer, the statement is made in writing and the statement shows that the child has at some time prior to the making thereof received from a magistrate a warning that:
(A) he may remain silent and not make any statement at all and that any statement he makes may be used in evidence against him;
(B) he has the right to have an attorney present to advise him either prior to any questioning or during the questioning;
(C) if he is unable to employ an attorney, he has the right to have an attorney to counsel with him prior to or during any interviews with peace officers or attorneys representing the state;
(D) he has the right to terminate the interview at any time;
(E) if he is 15 years of age or older at the time of the violation of a penal law of the grade of felony the juvenile court may waive its jurisdiction and he may be tried as an adult; and
(F) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present. The magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily. If such a statement is taken, the magistrate shall sign a written statement verifying the foregoing requisites have been met.
The child must knowingly, intelligently, and voluntarily waive these rights pri- or to and during the making'of the statement and sign the statement in the presence of a magistrate who must certify that he has examined the child independent of any law enforcement officer or prosecuting attorney and determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights.
(2) it be made orally and the child makes a statement of facts or circumstances that are found to be true, which conduct tends to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.
(3) the statement was res gestae of the delinquent conduct or the conduct indicating a need for supervision or of the arrest.

More specifically, the appellant complains that the requirements of section 51.09(b)(1) were complied with except insofar as the magistrate failed to include paragraph (F) in his warning to appellant.

The primary purpose of paragraph (F) seems to be to inform the juvenile that any statement that he makes, in order to be used against him, must be made by him pursuant to a knowing, intelligent and voluntary waiver of the rights enumerated in paragraphs (A) through (E). The remainder of paragraph (F), since it adds nothing to the juvenile’s understanding of his rights, seems to be more in the nature of an admonition to the magistrate than a warning to the juvenile. The statement signed by the appellant relates that he knowingly, intelligently and voluntarily waived his rights under section 51.09(b) in making his confession, and the appellant testified on cross-examination at the adjudication hearing that in fact he was not threatened or in any way coerced into making a written confession. We believe, therefore, that although it would have been much wiser for the magistrate to have tracked carefully the language of section 51.09(b)(1), the warning that was actually given the appellant complied substantially with the requirements of that section, and does not require reversal.

The appellant states as his third point of error that the trial court erred in determining that the appellant was a child engaged in delinquent conduct because, in the absence of the written confession made by appellant, there was insufficient evidence to support the trial court’s finding that appellant made the forged check. Appellant states that, without the confession, there is only the handwriting comparison testimony of two witnesses as evidence that appellant made the check. Appellant relies upon Davis v. State, 297 S.W.2d 845 (Tex.Crim.App.1957), for the proposition that handwriting comparison testimony, by itself, is insufficient to establish the maker of a check.

Because the written confession of appellant was properly admitted by the trial court, there clearly was sufficient evidence to support the finding of the trial court that appellant made the forged check. But even if the confession of appellant were excluded, there still would be sufficient evidence to support the trial court’s finding. Davis v. State, cited by appellant, is inappo-site. In Davis, the Texas Court of Criminal Appeals was construing Article 38.27 of the Code of Criminal Procedure which provides that proof by comparison is insufficient to establish the handwriting of a witness who denies his signature under oath. Tex. Code Crim. Proc. Ann. art. 38.27 (1966). The record does not show that appellant denied under oath that he signed the forged check. Moreover, the proceedings in the trial court to have the appellant adjudged a delinquent child were civil in nature. As civil proceedings they were not governed by the Texas Code of Criminal Procedure or by criminal law but were governed by the Texas Rules of Civil Procedure. Matter of S. J. C., 533 S.W.2d 746 (Tex.Sup.), cert. denied, 429 U.S. 835, 97 S.Ct. 101, 50 L.Ed.2d 100 (1976). There is, therefore, no reason why the comparison testimony of the two witnesses cannot serve as sufficient evidence to support the findings of the trial court.

Appellant’s points of error having been fully considered and being overruled, the judgment of the trial court is hereby affirmed.

Affirmed.

      . Tex. Family Code Ann. § 51.09(b) (Supp.1976).


author: YOUNG, Justice.

text:
    John J. SCOGIN d/b/a Scogin Realty and/or John J. Scogin Realty, Appellant. v. A. G. CAMP, Appellee.
    No. 1184.
    Court of Civil Appeals of Texas, Corpus Christi.
    Sept. 22, 1977.
    Rehearing Denied Oct. 13, 1977.

      James C. Martin, Walter Groce, Corpus Christi, for appellant.
    Charles R. Cunningham, Corpus Christi, for appellee.
   OPINION

YOUNG, Justice.

This suit was brought by John J. Scogin, d/b/a Scogin Realty, to recover a commission for the sale of “Camp Cleaners”. Suit was brought against A. G. Camp the owner of the property for which a purchaser was allegedly procured. Camp then filed a motion for summary judgment. The trial court granted Camp’s motion and entered a judgment that Scogin take nothing. Scogin appeals. We reverse and remand for trial.

A. G. Camp owned the Camp Cleaners in Corpus Christi, Texas. On March 10, 1976, he and Scogin entered into a listing agreement denominated “Exclusive Authorization To Sell” which gave Scogin the exclusive right until September 30, 1976, to sell Camp’s property. The type of property for sale, whether realty or personalty, is in dispute. Under this agreement Camp agreed, among other things, to pay Scogin 10% of the selling price ($55,000.00) if Sco-gin procured a purchaser on terms specified in the agreement or other terms acceptable to the owner.

Subsequently Scogin located a prospective purchaser, Richard A. Kemp, who executed a purchase contract for Camp’s property during the listing period. Camp’s signature does not appear on that document nor does the summary judgment evidence reflect that he otherwise accepted the terms. At any rate the sale from Camp to Kemp was never consummated.

In three points of error Scogin contends that there are material issues of fact to be resolved; therefore, the trial court erred in granting Camp’s motion for summary judgment.

Camp counters by asserting that the granting of the summary judgment was correct because the listing agreement concerned real property and that, therefore, the proposed purchase contract (signed by Kemp) is in violation of Tex.Rev.Civ.Stat. Ann. art. 6573a, § 28. We note that in 1975 Article 6573a was amended, effective September 1, 1975, and the substance of Section 28 is now contained in Section 20 of the same article. The pertinent part of Section 20 is as follows:

“(c) When an offer to purchase real estate in this state is signed, the real estate broker or salesman shall advise the purchaser or purchasers, in writing, that the purchaser or purchasers should have the abstract covering the real estate which is the subject of the contract examined by an attorney of the purchaser’s own selection, or that the purchaser or purchasers should be furnished with or obtain a policy of title insurance. Failure to advise the purchaser as provided in this subsection precludes the payment of or recovery of any commission agreed to be paid on the sale.” (Emphasis supplied.)

The uncontroverted evidence here establishes that Scogin failed to comply with the “advise the purchaser or purchasers, in writing,” provision about an abstract or policy of title insurance. But he says the above quoted article does not bar his recovery because the property subject to sale is personalty and not realty.

All of which brings us to an examination of the summary judgment evidence in light of Section 20. All of the summary judgment evidence is contained in three interrogatories, the answers thereto, and the documents attached thereto. The interrogatories, addressed to Scogin, and answers are as follows:

“1. Is the attached Exhibit A, Exclusive Authorization to Sell, a true copy of the original of said instrument?
2. Is the attached Exhibit B, Sales Agreement and Deposit Receipt, a true copy of the original of said instrument?
3. Are there any other instruments in connection with this alleged transaction between Richard A. Kemp and A. G. Camp involving you as real estate agent? If so, please attach a true copy of any such instruments to your answers to these interrogatories.”

Scogin answered the interrogatories as follows:

“Interrogatory No. 1: Yes
Interrogatory No. 2: Yes
Interrogatory No. 3: There are no other written instruments. All other matters were by parol.”

The “Exclusive Authorization to Sell” is a printed form with blanks for appropriate interlineations. We set out pertinent parts of this listing agreement with the handwritten interlineated portions underlined.

“EXCLUSIVE AUTHORIZATION TO SELL
The undersigned Owner hereby GRANTS the undersigned Broker the EXCLUSIVE AUTHORIZATION and RIGHT, for a period commencing this date and terminating at midnight of 9-30. 1976. to sell the real property situated in the City of Corpus Christi. County of Nueces. State of Tex., described as Camp Cleaners 712 Elizabeth consisting of: All Equipment. at the price of: $55,000.00 Dollars, on the following terms: $15.000 Cash down Bal as agreed upon. . . .”

The document provided for a broker’s fee of 10% of the selling price. There were other provisions followed finally by the signatures of Scogin and Camp. The instrument is dated March 10, 1976.

The listing agreement thus sets out the property to be sold by two apparently inconsistent terms: one, a printed term called “real estate”, and the other, a handwritten term call “All Equipment”. There is apparent inconsistency between the two terms because equipment is generally considered personalty unless it is annexed to the realty. See Erwin v. Steele, 228 S.W.2d 882 (Tex.Civ.App.—Dallas 1950, writ ref’d n.r.e.); 25 Tex.Jur.2d Fixtures §§ 5, 13, and 14 (1961). Also, the general rule about construction of contracts exists which provides that the written or typewritten part of a contract controls in the event of any conflict thereof with the printed portion of the contract. Innes v. Webb, 538 S.W.2d 237 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.).

We pause now in our discussion to set out some of the fundamental rules by which we must be guided in our consideration of this summary judgment matter. Virtually all burdens are on the movant. Swilley v. Hughes, 488 S.W.2d 64 (Tex.Sup.1972). The movant must establish as a matter of law that there is no genuine issue of fact. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970). All doubts as to the existence of genuine issues of fact are to be resolved against the mov-ant. Swilley v. Hughes, supra.

Guided by those rules we have the duty to accept “All Equipment” (written) over “real estate” (printed) as the property subject to sale and to consider “All Equipment”, as here standing alone and unexplained, as personalty. Or at least a fact issue is raised about whether it is personalty or real estate. Further, in the “Sales Agreement and Deposit Receipt” the property is there specifically called “personal property” and “All Equipment — Business Etc”. This instrument was also an item of Camp’s summary judgment evidence.

We hold, therefore, that the movant Camp has failed to show by his summary judgment evidence that, as a matter of law, the property subject to sale is real estate under Tex.Rev.Civ.Stat.Ann. art. 6573a, § 20 (Supp.1976). Thus Camp has failed to show, as a matter of law, that Scogin’s suit for his commission is barred by Section 20.

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