author: BYERS, Judge.

text:
    Earl T. HICKS, Jr., Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 23, 1978.
    Certiorari Denied by Supreme Court Sept. 25, 1978.

      Robert M. Garfinkle, Nashville, Arthur E. McClellan, Gallatin, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, O’Brien Price, Dist. Atty. Gen., Springfield, Robert G. Ingram, Asst. Dist. Atty. Gen., Gallatin, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of armed robbery and sentenced to serve twenty (20) years in the penitentiary.

The Appellant says the evidence does not support the verdict because there was no corroboration of the testimony of two accomplices who testified against him, that evidence of prior crimes were improperly introduced into evidence, that the introduction of rubber gloves found near the scene was error because the police had not revealed they had found these gloves, that he should have been granted a new trial on the basis of newly discovered evidence, and further claims the charge given on the defense of alibi was erroneous.

The undisputed evidence shows that on September 25,-1977, at approximately 10:30 p. m., two young men, later identified as Danny Pratt and Gary Comer, entered Super Stop Market on Long Hollow Road in Sumner County, and by use of pistols took from three to four hundred dollars of the money belonging to the owner of the store. They also took a wallet containing five dollars ($5.00) from a customer. In addition to the money, the robbers took a cigar box containing receipts and other papers connected with the business.

At the trial of this case, Danny Pratt and Susan Comer, whose testimony showed she participated in this crime, were called as State’s witnesses. In substance, they testified that the Appellant procured them and Gary Comer to commit this crime. They related that he bought a pair of rubber gloves to be used by the robber in the commission of this crime, that he furnished two guns, one for each of the young men to use, that he drove them to the store which was robbed, that he drove them away from the scene after the crime and took part of the money. A pair of gloves were found near the scene of the crime by investigating officers. These were found along with the cigar box which had been taken from the store and had been discarded. A State’s witness testified that the Appellant, in the company of a young woman, had been in a store where she worked just prior to this crime, that the young woman selected a pair of gloves similar to the ones found near the scene of the crime and that the Appellant had paid the purchase price thereof. The State also offered the testimony of a young man that on the day prior to the crime the Appellant asked him to assist in the commission of an armed robbery which he was planning.

The Appellant testified that he had nothing to do with the crime, that he was with a woman friend at the time of the crime, that he saw Gary Comer standing in the bushes near the scene of the robbery as he and this woman drove along the roadway. The woman testified substantially the same as the Appellant.

The assignments complaining of the insufficiency of the evidence hinge upon the complaints concerning the introduction of certain evidence in this case and we will therefore treat those assignments prior to the weight of the evidence complaint.

The Appellant bases his claim of the inadmissibility of the gloves on an occurrence during the preliminary hearing. In the course of that proceeding, the Appellant’s attorney asked the investigating officer if he had found any physical evidence at the scene of the crime. The officer revealed what items he had found, with the exception of the gloves.

The Appellant insists that this amounts to a suppression of evidence which interfered with the formulation of a defense within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The State, on the other hand, asserts that the officer did not intentionally withhold this information and therefore did not create a violation of the Brady rule. In addition, the State takes the position that the failure of the Appellant to make a motion for discovery under T.C.A. § 40-2044 and § 40-2441 precludes the granting of relief on the basis claimed by the Appellant.

We agree with the State that a pretrial discovery motion should have been filed and in the context of the evidence in this case we think it was a prerequisite for a claim of error on appeal. However, we are not prone to agree with the explanation given by the officer for not revealing the discovery of the gloves during his testimony at the preliminary hearing.

The officer testified, at the trial of this case, that he did not know the gloves were connected to the Appellant. However, the gloves were found along with some of the property which had been taken from the store. The Appellant was charged with committing that crime. It must necessarily follow that the officer would recognize the likelihood that any physical evidence found at the scene of the crime might be relevant on the issue of the accused’s guilt. We think that the usual course would be to reveal this type of information, when asked about it in a judicial hearing, rather than not disclosing the same on the supposition that it might not be connected to the accused. The failure to do so might well bar the use of essential evidence to show the commission of a crime.

The Appellant’s contention that proof of a prior crime was admitted against him is based on the testimony given by a witness named Tommy Vetetoe.

Vetetoe testified that on the day prior to the crime in this case, the Appellant asked him to aid in the carrying out of an armed robbery.

The Appellant insists that this evidence should be excluded because it tends to show the accused guilty of another and unrelated offense than the one on which he was being tried and that this evidence did not show identity, plan, intent or any other relevant factors to qualify it for admission. McLean v. State, 527 S.W.2d 76 (Tenn.1975). The State, on the other hand, says it does qualify for admission because it shows motive, intent, absence of mistake, scheme or plan. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

We do not glean from this record that the testimony complained of showed the commission of another offense making it admissible or inadmissible for either reason claimed. Rather, we are of the opinion that this evidence was admissible as evidence of the Appellant’s preparation for and participation in the offense hereunder inquiry, and also qualifies for admission as part of the res gestae. Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159 (1966).

yfe are of the opinion that the testimony concerning the purchase of the gloves similar to the ones found at the scene of the crime and the testimony that the Appellant asked Vetetoe to aid in an armed robbery corroborated the accomplices’ testimony sufficiently to support the verdict of the jury.

Two of the participants, in this offense related the Appellant’s connection therewith. Two witnesses, who were not accomplices, gave testimony which gave credence to their testimony. This testimony was separate and apart from the testimony of the accomplices’ and tended to show the Appellant’s complicity in the commission of the crime. This is sufficient corroboration. Boulton v. State, 214 Tenn. 94, 377 S.W.2d 986 (1964); Prince v. State, 529 S.W.2d 729 (Tenn.Crim.App.1975). In addition to this, the Appellant’s explanation of how he came to be in the vicinity of the crime is not convincing. This is rendered even less believable because two nights prior to this crime the Appellant appeared in an area at White House, Tennessee, when Comer and Pratt were being questioned by police officers. On that occasion the Appellant drove the two men home after the officers released them.

The Appellant claims a new trial should have been granted because of newly discovered evidence. He supports this by an affidavit of the payroll clerk of the employer of the woman who said the Appellant was in the store in which she was employed and that he purchased rubber gloves therefrom. The witness testified that this occurred at approximately 7:30 p. m. The affidavit of the payroll clerk asserts that the records of the employer show this witness did not work after 1:30 p. m. on September 25, 1977, the date she said the gloves were purchased.

We see no error in the refusal of the trial judge to grant a new trial on this affidavit.

The alleged new evidence would tend to impeach the testimony of the witness concerning the purchase of the gloves. This does not entitle the Appellant to a new trial. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966); Freshwater v. State, 2 Tenn.Crim.App. 314, 453 S.W.2d 446 (1969).

More significantly, the alleged new evidence is contained only in the affidavit which is attached to the motion for a new trial and contained in the technical record. The evidence to support this complaint must be preserved in a Bill of Exceptions. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1965).

A motion for a new trial is only a pleading. An affidavit, such as the one in this case, is merely an exhibit to such motion. To show the' existence of this evidence, proof must be offered by the moving party. To grant relief on affidavits only would deny the opposing party an opportunity to test the accuracy or veracity of the information contained therein by confrontation or by evidence contrary to this assertion. The trial judge properly denied the motion for a new trial on this ground.

The Appellant complains further that the trial judge erred in giving the jury a charge on alibi that did not conform to the requirement of Christian v. State, 555 S.W.2d 863 (Tenn.1977).

This case was tried prior to the release of the Christian opinion. At the time of this trial the instructions on alibi given by the trial judge was proper. The Christian case specifically directed that the rule therein was to be applied prospectively only. Therefore, the Appellant may not rely upon the Christian rule as a ground for relief.

The judgment of the trial court is affirmed.

SAM LEWIS and GERALD L. EWELL, Sr., Special Judges, concur.


source: Caselaw Access Project

author: DUNCAN, Judge.

license: Public Domain

text:
    James MULLINS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 30, 1978.
    Certiorari Denied by Supreme Court Sept. 18, 1978.

      C. Dwaine Evans and Ronald L. Perkins, Morristown, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Heiskell H. Winstead, Dist. Atty. Gen., Rog-ersville, Charles E. Fraley, Jr., Asst. Dist. Atty. Gen., Morristown, for appellee.
   OPINION

DUNCAN, Judge.

The appellant-defendant, James Mullins, was convicted in the Hamblen County Criminal Court of burglary and larceny. These were the triggering offenses for the subsequent finding by the jury that the defendant was an habitual criminal. He was sentenced to the penitentiary for life as his enhanced punishment.

In this appeal, the defendant assigns errors concerning the court’s rulings on his motions to dismiss the indictment, the alleged insufficiency of the evidence, the testimony of certain witnesses, and the attorney general’s argument. He also attacks the alleged unconstitutional application of the habitual criminal statutes. We find no reversible errors and affirm the judgment.

First, we find that the court did not err in overruling the defendant’s plea in abatement because of an alleged misnomer in the indictment. The defendant, in his plea, alleged that the fifth count of the indictment, charging him with being an habitual criminal incorrectly alleged his name in the caption as James E. Mullins, rather than by his true name of James Junior Mullins. The first four counts of the indictment alleged the defendant’s name to be “James Mullins.” In the habitual criminal count (fifth count), it was charged that “James E. Mullins” became an habitual criminal by reason of his having “been convicted of six (6) separate felonies.” This count of the indictment then goes on to allege five prior convictions, and makes five different allegations that “the defendant, James Junior Mullins,” was the name of the person who had been so previously convicted.

By referring to all of the allegations in the fifth count, we find that this count sufficiently complies with the mandate of T.C.A. § 40-1803, which requires that the indictment “must be certain as to the person charged.” This count, in enumerating the defendant’s prior convictions, refers to him as the “defendant,” and it alleges his true name of James Junior Mullins in five separate places.

The law requires that the party charged be notified by the indictment of the transaction in relation to which he is called on to defend himself. Rugg v. State, 141 Tenn. 362, 210 S.W. 630 (1918); State v. Woodson, 24 Tenn. (5 Humph.) 55 (1844).

The case of Inman v. State, 195 Tenn. 303, 304-05, 259 S.W. 531, 532 (1953), correctly states the law as follows:

“The true test of the sufficiency of an indictment or a presentment is ‘whether it contains the elements of the offense intended to be charged, “and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction” ’.” (citations omitted)

Moreover, the allegation of his name as “James Mullins” in the first four counts was a sufficient allegation, and our Supreme Court has held that in a multi-count indictment, references in one count may be used in aid of identification allegations made in another count. Chapple v. State, 124 Tenn. 105, 135 S.W. 321 (1910).

In 2 Wharton’s Criminal Procedure § 278, at 92 (C. Torcia 12th ed. 1975), a general rule is stated that:

. ., if the defendant is otherwise adequately identified, a mistake in or omission of his middle name or initial does not render an indictment or information insufficient.”

The defendant cites the case of State v. Hughes, 31 Tenn. (1 Swan) 261 (1851), to support this proposition that the middle name or initial of a defendant, if stated in the indictment, must be correctly stated, otherwise it will be a fatal defect if attacked by a plea in abatement. The Hughes case is distinguishable from the present case because it only involved a one-count indictment, and nowhere in that count was the defendant otherwise correctly named. Thus, unlike the present indictment, there were no other allegations to which reference could be made to supply the necessary identification.

In view of all the allegations in this indictment, we see no way in which the defendant could have been misled. It gave him adequate notice that he should come to court prepared to defend himself not only on the triggering offense but also on the habitual criminal charge. Our cases have held that a variance between pleading and proof in a criminal case is not material where the variance could not have misled the defendant at the trial. State v. Yates, 217 Tenn. 160, 395 S.W.2d 813 (1965); Brown v. State, 186 Tenn. 378, 210 S.W.2d 670 (1948).

We find that the fifth count of this indictment adequately and unquestionably identifies the defendant, and it is sufficient to protect him in any future prosecution for the same offense. We overrule this assignment of error.

Next, the defendant says that the trial court erred in failing to dismiss the indictment because he did not have the assistance of counsel at his preliminary hearing. In an affidavit attached to his motion, the defendant maintains that at the time of his preliminary hearing he was represented by Attorney Randall Shelton on two other charges, but not on the present case, and that he didn’t waive his right to a preliminary hearing or counsel. We note that the face of the arrest warrant in this case contains the name of Randall Shelton, which would indicate that he represented the defendant on this case also. It also shows that the defendant was bound over to the grand jury on March 8, 1977. Actually, the defendant’s affidavit can serve as no proof of what occurred at the preliminary hearing, as it only appears in the technical record and was not made a part of the bill of exceptions. Baldwin v. State, 204 Tenn. 639, 325 S.W.2d 244 (1959); Letner v. State, 512 S.W.2d 643 (Tenn.Cr.App. 1974).

Moreover, if the defendant’s complaint is that he was denied a preliminary hearing, then that complaint is also without substance. He was arrested on February 17, 1977, and his motion to dismiss the indictment for lack of a preliminary hearing was not filed until October 21, 1977. Our preliminary hearing statute, T.C.A. § 40-1131, provides that no motion for abatement of the indictment because of a denial of a preliminary hearing shall be granted after the expiration of 30 days from the date of an accused’s arrest. See Hamilton V. State, 555 S.W.2d 724 (Tenn.Cr.App. 1977). Further, we would point out that the record is silent as to how and in what manner the defendant has sustained any prejudice by reason of the developments that did or did not occur at his preliminary hearing. We overrule this assignment.

Also, there is no merit to the defendant’s assignment that the first count of the indictment should have been dismissed because it did not allege that the breaking and entering occurred in the daytime. Because “commission during the daytime is not an essential element of burglary in the second degree,” Ledger v. State, 199 Tenn. 155, 158-59, 285 S.W.2d 130, 131 (1955), it would necessarily follow that there is no requirement for the indictment to allege that the offense occurred in the daytime.

In two assignments of error, the defendant challenges the legal sufficiency of the convicting evidence.

The undisputed evidence in this case was that on February 15, 1977, in the daylight hours between 7:15 a. m. and 4:30 p. m., the home of Mr. and Mrs. Billy Dehart was burglarized and, among other items, two Winchester rifles, a pistol, and a ring were stolen from their home. On February 16, A. M. Brown and Jonna Gates went to the B & G Truck Stop where the defendant was employed, and Brown, purchased the above enumerated stolen items from the defendant. Brown was a professor at Walter’s State College and was working undercover for the sheriff’s department. The defendant took Brown and Gates to a shed nearby the truck stop, where the guns, wrapped up in a bed cloth, had been secreted. Brown testified that he told the defendant he wanted to know where the “stuff” came from, and the defendant’s response was, “I got it out of a house about 10 miles down the road here.” In discussing the sale of the diamond ring with Brown, the defendant told him, “I know this is a good diamond ring because if you’ll read tonight’s paper, it will tell you in there the house it came out of ... I took it and it’s worth three thousand three hundred dollars.” Other evidence established that Brown paid the defendant for the stolen property with marked money, and upon the defendant’s arrest, the substantial portion of this marked money was found on his person. It was also shown by the evidence that it was approximately seven miles from the truck stop to the community where the Deharts lived. Additional evidence established that when the defendant was arrested he was shown the stolen guns and asked if he had ever seen them before to which he replied, “I ought to kill them two s.o.b’s.”

The defendant did not testify on the first phase of the trial, but offered witnesses who attempted to alibi him for the date of the burglary. The only witness who attempted to account for the defendant’s whereabouts prior to 11:00 a. m. on the date of the burglary was Curtis Lee Lovell. Obviously, the jury was swayed in their evaluation of his testimony because they had heard previous testimony that a few days prior to the present burglary', Lovell had participated with the defendant in a discussion with Gates about purchasing stolen guns. In any event, the jury rejected the defendant’s alibi defense.

With the stolen property being found in the defendant’s possession the day following the burglary, and in the total absence of any explanation in the record for such possession, the jury was entitled to draw an inference that the defendant had stolen this property. Bush v. State, 541 S.W.2d 391 (Tenn.1976). This unexplained possession, along with the testimony of Gates and Brown, and particularly considering the incriminating statements made by the defendant to Brown, clearly show that the defendant burglarized the Dehart home and stole the subject items.

Regarding the jury finding that the defendant was an habitual criminal, we find that the State offered court records to show that the defendant had been previously convicted in five burglary cases. The defendant was identified by an officer as being the same person who had been previously convicted. In fact, the defendant testified on this phase of the trial and admitted these prior convictions. The jury had no reasonable alternative other than to find the defendant guilty of being an habitual criminal.

The evidence in this case is more than sufficient to support the jury’s verdict finding the defendant guilty of the triggering offense as well as its finding that the defendant was an habitual criminal. We overrule his assignments on the evidence. Anderson v. State, 207 Tenn. 486, 341 S.W.2d 385 (1960).

In another assignment, the defendant complains that the testimony of A. M. Brown implicated the defendant in another burglary case.

At one point in Brown’s testimony about his conversations with the defendant, he said that the defendant stated to him:

“I’ve got some guns out there in the shed but I don’t have the ten that you all were to come here and pick up but I’ve got some more guns, the ten that I had I had to sell them right quick and get rid of them, said I’ve got a burglary case coming up.”

Without any objection being interposed by the defendant, the court interrupted the witness and said:

“Sustained. Don’t pursue that. Ladies and Gentlemen, you will not consider that. You will strike it from your mind and not consider it for any purpose.”

Any error'that could be said to have occurred was rendered harmless by the court’s curative instruction. Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975).

At another point in this testimony, Brown made some reference to the defendant having told him that he had disposed of some other guns “to pay for a lawyer.” The defendant made no objection to this testimony and cannot now complain. Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678 (1967). These assignments are overruled.

In two other assignments, the defendant alleges error in the introduction of testimony about a burglary case in which he was found not guilty and also complains of the attorney general’s argument. These matters occurred during the habitual criminal phase of this bifurcated trial.

Regarding the first point, the clerk of the court commenced to read from the court’s minutes regarding the defendant’s prior convictions and erroneously began to read a minute entry on a case in which the defendant had been found not guilty. At that point, the court interrupted and admonished the jury by saying: “Ladies and gentlemen of the jury, you will disregard the consideration of that case because there was a verdict of not guilty.”

On the second point, regarding the attorney general’s argument, in referring to the testimony of Brown, which had not been objected to, that the defendant had said that he had “four or five places he was going to hit,” the attorney general inquired of the jury: “Whose were they? Were they yours?” Here again, we find that the court sustained the defendant’s objections and told the jury to disregard the statement.

These innocuous errors were not prejudicial to the defendant. The court acted properly in instructing the jury to disregard them, and it is presumed that they did so. Bennett v. State, supra. Moreover, we would add that these complaints about the habitual criminal phase of the defendant’s trial pale to insignificance when it is considered that the only issue before the jury at this stage is whether the defendant on trial has been previously convicted of the requisite number of prior specified felonies to make him eligible to be found guilty and punished as an habitual criminal. The evidence is clear that the defendant had been previously convicted of five prior burglary offenses, all of which fall within the specified category of offenses enumerated in T.C.A. § 40-2801. These assignments are overruled.

Further, it was not error for the court to permit the witness, Jonna Gates, to testify that he had had a burglary at his residence. The obvious inference to be drawn from this record is that Gates was encouraged to assist the police in this case by his general interest in ferreting out crime because he had been previously victimized himself. The testimony was competent to show Gates’ reason for becoming involved in the present case. At any rate, no prejudice resulted to the defendant, because Gates’ testimony in no way implicated the defendant in this other offense.

In his final assignment, the defendant says that the habitual criminal statute as applied to him in this case abridged his eighth amendment protection from cruel and unusual punishment.

Under the eighth amendment, a sentence is not excessive and does not constitute cruel and unusual punishment when it does not involve the unnecessary wanton infliction of pain, and when it is not grossly out of proportion to the severity of the crime. Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977); Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

In upholding the constitutionality of our habitual criminal statutes, our courts have consistently held that the enhanced penalty required by such statutes does not constitute cruel and unusual punishment. Pearson v. State, 521 S.W.2d 225 (Tenn.1975); Canupp v. State, 197 Tenn. 56, 270 S.W.2d 356 (1954); Moore v. State, 563 S.W.2d 215 (Tenn.Cr.App.1977). The defendant concedes this point but insists that while not unconstitutional per se, the habitual criminal statutes are unconstitutional in his case because of the manner in which they were applied to him. His argument here is that his underlying prior convictions as well as his juvenile status at that time are such as to make a life sentence unconstitutionally disproportionate and so grossly excessive as to amount to cruel and unusual punishment.-

We are unable to accept this line of reasoning. It is true that the defendant was a juvenile, 16 years of age, at the time of his five prior burglary convictions, but he had been properly certified from juvenile court to the criminal court for prosecution as an adult. He was tried, found guilty, and sentenced as an adult. In Pearson v. State, supra, our Supreme Court stated that, “When a defendant is tried, convicted and sentenced as an adult, the provisions of the habitual criminal law are applicable, if the other criteria are met.”

Also, it must be remembered that the defendant is not being punished for his prior crimes. Those crimes brought about his status, but his present sentence is the enhanced punishment for this 23 year old defendant’s present crime. Harrison v. State, 217 Tenn. 31, 394 S.W.2d 713 (1965).

The defendant cites the case of Hart v. Coiner, 483 F.2d 136 (4th Cir. 1973) cert. denied, 415 U.S. 983, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974), where the court held that the mandatory life sentence imposed by the facially valid West Virginia recidivist statute was so excessive and disproportionate to the underlying offenses that it constituted a violation of the eighth amendment prohibition against cruel and unusual punishment. The defendant also cites Rummel v. Estelle, 568 F.2d 1193 (5th Cir.1978), which followed the disproportionality rationale of Hart v. Coiner, supra.

These two cases are readily distinguishable from the present case. The triggering offense in Hart was perjury committed at the murder trial of that defendant’s son, and the underlying offenses were only two in number, namely, writing a bad check for $50.00, and interstate transportation of forged checks involving amounts totalling $140. In Rummel, the triggering offense was obtaining $120.75 under false pretenses, and the underlying offenses were also only two in number, namely, fraudulent use of a credit card involving $80.00 and passing a forged check with a face value of $28.36.

The underlying offenses in Hart and Rummel can hardly be equated with the defendant’s underlying five prior burglary offenses. The same thing must be said in comparing the Hart and Rummel triggering offenses with the defendant’s triggering offense.

We would add that the same circuit that decided Hart, later upheld a life sentence in Griffin v. Warden, 517 F.2d 756, 757 (4th Cir. 1975), for a defendant convicted of grand larceny, whose underlying convictions were for burglary of a business house and burglary of a residence. In pointing out the dissimilarity between these offenses and those in Hart, the court said Griffin’s offenses “clearly involve the potentiality of violence and danger to life as well as property.” The same thing can be said for the present defendant’s offenses. We find no merit to this complaint.

We overrule all of the defendant’s assignments of error and affirm the judgment of the trial court.

WALKER and TATUM, JJ., concur.


author: JOHNSON, Justice.

text:
    Tom H. DAVIS et ux., Petitioners, v. Robert M. HUEY et al., Respondents.
    No. B-7182.
    Supreme Court of Texas.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.

      Graves, Dougherty, Hearon, Moody & Garwood, John T. Anderson and Robert J. Hearon, Jr., Byrd, Davis & Eisenberg, Tom H. Davis, Austin, for petitioners.
    Eskew, Brady, Womack & Muir, Doren R. Eskew, David L. Tisinger, Austin, for respondents.
   JOHNSON, Justice.

The primary issue presented by this case is the proper scope and standard of review by the court of civil appeals of a trial court’s denial of a temporary injunction.

The respondents, Robert M. Huey and wife, Mary Paige Huey, filed suit to permanently enjoin the petitioners, Tom and Hattie Davis, from building upon their lot until their plans therefor had been approved by the developer. The Hueys further sought an immediate temporary restraining order and, after a hearing, a temporary injunction similarly restraining the Davises. After a hearing the trial court denied the temporary injunction and the Hueys appealed the denial of the temporary injunction. The court of civil appeals reversed the trial court judgment and rendered judgment that the cause be remanded to the district court, with instructions to enter judgment enjoining the Davises from continuing with construction until the plans had been approved by the developer. 556 S.W.2d 860. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Petitioners Tom and Hattie Davis purchased a lot in Northwest Hills, a subdivision of Austin, Texas, noted for its view of the surrounding hills. The Davis lot abuts on its west side a lot owned by respondents Robert and Mary Paige Huey. A house was already constructed on the Huey lot at the time of the Davis purchase. The Davis lot, as are all other lots in the subdivision, is subject to certain restrictive covenants in its deed, including restrictions 7 and 8, as follows:

“7. Set-Back. Front Line, Side Line and Rear Line
“No structure shall be located or erected on any lot nearer to the front plot line than twenty-five (25) feet, nor nearer than five (5) feet to any side plot line except that the total combined setback from both sides shall in no event be less than fifteen (15) feet, nor nearer than fifteen (15) feet to the rear plot line.
“8. Architectural Control and Building Plans
“For the purpose of insuring the development of the subdivision as a residential area of high standards, the Developers reserve the right to regulate and control the buildings or structures or other improvements placed on each lot. No building, wall or other structure shall be placed upon such lot until the plan therefor and the plot plan have been approved in writing by the Developers. Refusal of approval of plans and specifications by the Developers . . . may be based on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion of the Developers . shall seem sufficient. No alterations in the exterior appearance of any building or structure shall be made without like approval. . . . ”

The Davises proposed to build a house on their lot to be situated twenty-five feet from the rear plot line. This placement of the house on the lot will clearly comply with restriction 7. However, the developer, respondent Austin Corporation, acting through respondent David Barrow, refused to approve the Davises’ plans because the proposed placement of the house on the lot would bar the side view from the Hueys’ existing house. In its refusal of the plans the developer purports to exercise its general authority under restriction 8 to refuse approval of a plan “on any ground, including purely aesthetic grounds, which in the sole and uncontrolled discretion” of the developer shall seem sufficient.

The Hueys filed the instant lawsuit to permanently enjoin the Davises from building any structure upon their lot .until the plans therefor had been approved in writing by the developer. The Hueys’ petition included a prayer that an immediate temporary restraining order be granted and that after a hearing a temporary injunction be entered, both similarly restraining the Da-vises. The trial court granted an immediate and ex parte temporary restraining order. After a hearing the trial court entered an order dissolving the temporary restraining order and denying the temporary injunction. No findings of fact or conclusions of law were requested or filed.

The Hueys appealed the denial of the temporary injunction. The court of civil appeals reversed the trial court judgment and rendered judgment “that the cause be remanded to the district court, with instructions to enter judgment enjoining Appellees Davis and wife from continuing with construction until the house and plot plans have been approved by the developer.” In reaching this result the court of civil appeals opinion concluded that the covenants in question were valid. The opinion discussed at length the authorities in Texas and other jurisdictions which uphold restrictive covenants implementing a general scheme of development for the common benefit of all lot owners by providing for approval of building plans by the developer. The court of civil appeals further examined the issue of the standard governing the developer’s conduct in exercising its plan approval authority and concluded that the developer’s conduct is improper only if it is arbitrary or in bad faith.

THE TEMPORARY INJUNCTION REVIEW

The Davises contend that the court of civil appeals far exceeded the proper scope of appellate review of a temporary injunction and improperly granted premature review of the entire case on its merits. We must agree. The appeal of an order granting or denying a temporary injunction is an appeal from an interlocutory order, which is expressly authorized by Article 4662, Texas Revised Civil Statutes Annotated. Accordingly, the merits of the underlying case are not presented for appellate review. Appellate review of an order granting or denying a temporary injunction is strictly limited to determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526 (Tex.1975); City of Spring Valley v. Southwestern Bell Tel. Co., 484 S.W.2d 579 (Tex.1972); State v. Cook United, Inc., 469 S.W.2d 709 (Tex.1971); Texas Foundries v. International Moulders & F. Wkrs., 151 Tex. 239, 248 S.W.2d 460 (1952).

The court of civil appeals opinion contains no indication that it confined its appellate consideration to review for abuse of discretion. To the contrary, it appears that the court of civil appeals gave full consideration to the merits of the underlying lawsuit. The opinion itself characterizes the case as an appeal from an order denying an injunction. The opinion makes no reference to the interlocutory nature of the injunction or to the abuse of discretion standard. Further, the order which the court of civil appeals directed the trial court to enter upon remand fully grants the relief sought by the Hueys in their lawsuit: injunction of the construction until the Davises’ plans are approved by the developer.

The Hueys argue that the court of civil appeals opinion was clearly limited to review of the temporary injunction because that was the only issue raised before that court. However, a reading of the court of civil appeals opinion and order will not support this contention. The effect of premature review of the merits accomplished by the court of civil appeals here is to deny the Davises their right to trial by jury. This court will not assume that the evidence taken at a preliminary hearing will be the same as the evidence developed at a full trial on the merits. Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., 155 Tex. 407, 289 S.W.2d 217 (1956); Transport Co. of Texas v. Robertson Transports, 152 Tex. 551, 261 S.W.2d 549 (1953).

At a hearing upon the request for a temporary injunction the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. Houston Belt & T. Ry. Co. v. Texas & New Orleans R. Co., supra. On appeal the reviewing court is limited in its consideration as to whether the trial court abused its discretion in making the foregoing determination. The appellate court may not substitute its judgment for that of the trial court. Texas Foundries v. International Moulders & F. Wkrs., supra. An abuse of discretion does not exist where the trial court bases its decisions on conflicting evidence. Zmotony v. Phillips, 529 S.W.2d 760 (Tex.1975). Here, as no findings of fact or conclusions of law were filed, the trial court judgment must be upheld on any legal theory supported by the record. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968).

The Davises assert that there are at least three legal theories which will support the trial court’s implied holding that the Hueys showed no probable right to recover. First, the trial court might have concluded that the developer had no power to modify the fifteen-foot setback requirement of deed restriction 7 under the holding of Johnson v. Dick, 281 S.W.2d 171 (Tex.Civ. App. — San Antonio 1955, no writ). Second, the trial court could have found as a fact that the developer’s action in refusing approval was not reasonable under the circumstances. Third, the trial court could have found as fact that “views” were not a part of the general scheme of development of the subdivision and not a proper basis for the exercise of the developer’s authority under restriction 8.

The Davises further contend that there are under the evidence at least three theories upon which the trial court could have concluded that the Hueys failed to show irreparable injury. First, there was testimony by Mr. Huey that the reduced value of his property could be compensated by money damages. Second, there was testimony that the Hueys could extend their deck ten feet to preserve their view. Third, because the construction of the Davis house was in such early stages, the Hueys would suffer little injury in the time period between the temporary injunction hearing and the final hearing on the merits. Without intruding upon the merits of the underlying cause of action, it may be concluded that at least some basis exists upon which the trial court could have properly held that the Hueys were not entitled to a temporary injunction pending the final hearing. Accordingly, we hold that the trial court did not abuse its discretion in denying the temporary injunction.

THE BOND QUESTION

In addition to ordering the case remanded to the trial court with instructions to issue an injunction against construction until the plans were approved, on October 5, 1977 the court of civil appeals also entered its own injunction pendente lite for the stated purpose of protecting its jurisdiction, ordering the Davises to cease all construction work on the dwelling and not to resume work so long as the cause remained within its jurisdiction. 556 S.W.2d 860 at 865. This injunction pendente lite was not conditioned upon the posting of a bond by the Hueys to protect the Davises against loss for delay of construction should the Davises eventually prevail. On October 6, 1977 the Davises filed a “Motion to Set Aside Order or, in the Alternative, to Set Bond” wherein the Davises complained of the court of civil appeals’ failure to set bond on its own injunction. The motion was overruled on the day it was filed.

The Davises maintain that the court of civil appeals’ failure to condition its injunction pendente lite upon a bond is error. In support of this argument the Davises rely upon the recent decisions of two courts of civil appeals requiring a bond upon the issuance of injunctions to preserve their jurisdiction. Riverdrive Mall, Inc. v. Larwin Mortgage Investors, 515 S.W.2d 2 (Tex.Civ. App. — San Antonio 1974, writ ref’d n. r. e.); Pendleton Green Associates v. Anchor Savings Bank, 520 S.W.2d 579 (Tex.Civ.App.— Corpus Christi 1975, no writ).

The Davises also concede that the issue may be moot. The jurisdiction of the court of civil appeals terminated and the supreme court acquired exclusive jurisdiction of the case when the application for writ of error was filed. Ammex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.1964); Johnson v. Sovereign Camp, W. O. W., 125 Tex. 329, 83 S.W.2d 605 (1935). Therefore, by its terms the order of the court of civil appeals has expired. Petitioners and all respondents agree that the issue is rendered moot by the expiration of the injunction penden-te lite. It would appear that this court can grant no relief from an injunction pendente lite which is no longer in existence. Therefore, we decline to comment upon the necessity of a bond in an injunction pendente lite issued by a court of civil appeals to protect its jurisdiction.

THE MOTION TO DISMISS

The Hueys have also filed in this court a motion to dismiss for want of jurisdiction the Davises’ application for writ of error on the grounds that it was not timely filed. An application for writ of error must be filed with the clerk of the court of civil appeals within thirty days after the overruling of the motion for rehearing in the court of civil appeals. Tex.R.Civ.P. 468. The Davis application was filed with the clerk of the court of civil appeals on November 14,1977. The Hueys argue that the Davises’ “Motion to Set Aside Order or, in the Alternative, to Set Bond,” filed and overruled on October 6, 1977, must be considered to operate as the Davises’ only motion for rehearing in the court of civil appeals. If the Hueys were correct in this assertion, the thirty-day time period expired on November 5, 1977, which was a Saturday, and the application was due to be filed by the following Monday, November 7, 1977. Tex.R.Civ.P. 4. However, the Davis-es also timely filed a motion for rehearing in the court of civil appeals on October 20, 1977. The motion for rehearing was overruled November 2, 1977. It is clear from a reading of the Davises’ October 6 motion that its major thrust was to seek the setting of a bond in connection with the court of civil appeals injunction pendente lite. The October 6 motion will not be considered a motion for rehearing, nor will its filing preclude the Davises’ filing of a timely motion for rehearing on October 20. Therefore, the Davis application for writ of error filed on November 14,1977 was timely filed and the jurisdiction of this court properly invoked.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Restriction 8 in its entirety provides for approval by the developer or by an architectural committee. References to the architectural committee are deleted as no committee had been formed at the time in question.

      . A letter from Judge Jones to the attorneys in the case setting forth a basis for his judgment has been submitted as an attachment to the parties’ briefs. The letter, however, is not properly made a part of the appellate record and it will not be considered as findings of fact or conclusions of law.


author: BARROW, Justice.

text:
    Benito LEAL et ux., Petitioners, v. FURNITURE BARN, INC., Respondent.
    No. B-7424.
    Supreme Court of Texas.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.
    J. David Phillips, Austin, for petitioners.
    Kendall, Randle, Finch & Osborn, Terrence Kendall, Austin, for respondent.
   BARROW, Justice.

This is a suit for damages under the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41, et seq. Judgment was entered for Benito and Linda Leal after a non-jury trial whereby they recovered against Furniture Barn, Inc. treble their actual damages of $185.00, being the sum of $555.00 plus stipulated attorney fees of $1,000.00. The court of civil appeals, with one justice dissenting, reversed and rendered judgment that the Leals take nothing by this suit. 560 S.W.2d 533. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The case was tried upon an agreed statement of facts. On May 12, 1975, Furniture Barn sold the Leals certain furniture for $765.42 on a “layaway” basis. In connection with the sale, the Leals made a down payment of $175.00 and were required to sign a printed retail installment contract which was changed by writing across the face of the printed contract the words: “In Layway (sic) only will pay 40.00 ea month until paid out.” There are a number of terms and conditions on the written form that are inconsistent with a layaway sale. There is no provision in the form for disposition of Leal’s payments in the event the contract was not completed and there was no agreement as to any charges or costs to be deducted in such event. The furniture was to be delivered when fully paid for and thus remained in the possession of Furniture Barn.

By July 1975, the Leals decided that they could not afford to pay out the furniture and sought a refund of the down payment. A payment of $10.00 was tendered and accepted by Furniture Barn on September 4, 1975, but a subsequent tender of $15.00 was refused on October 11,1975. On October 7, 1975, the following letter was written by Winkley, an employee of Furniture Barn, to the Leals and forms the basis of this suit:

“Under the terms of our agreement on this account it will be necessary for you to pay $40.00 by Saturday, October 11, 1975.
If payment is not received your account will be closed and all monies deposited shall be forfeited.”

The Leals alleged that this letter was a false and misleading statement in representing that the agreement conferred upon Furniture Barn rights or remedies which it did not have in violation of Section 17.-46(b)(12), Tex.Bus. & Comm.Code Ann. This section provides in part:

“(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;

We agree with the Leals that this letter was a false and misleading statement of Furniture Barn’s rights under the layaway agreement. The clear import of this letter is that Furniture Barn had the right under this agreement to retain all monies deposited by the Leals. This representation was false in that no such right is provided in the installment contract signed by the Leals and, under the stipulated facts, there was no such oral agreement. In fact, Furniture Barn does not contend that it had a right to forfeit the sums deposited by the Leals, but rather, seeks to make certain other charges against these funds. The letter of October 7, 1975, by representing to the Leals that the layaway agreement gave Furniture Barn the right to forfeit all monies deposited by the Leals, constituted á “false, misleading or deceptive act or practice” of the type that the legislature intended to proscribe and subjected Furniture Barn to the statutory penalties provided by said Act.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    EL CAMPO INDEPENDENT SCHOOL DISTRICT, Petitioner, v. Elizabeth B. KIMMEY, Respondent.
    No. B-7755.
    Supreme Court of Texas.
    Oct. 4, 1978.

      Gates Steen & Associates, Paul Funder-burk, Austin, for petitioner.
    Wood, Burney, Nesbitt & Ryan, Charles H. Dubois, Corpus Christi, for respondent.
   PER CURIAM.

This case involves an order of the court of civil appeals assessing all costs of appeal against a school taxing authority. The original suit filed by the petitioner, El Cam-po Independent School District, sought to recover unpaid ad valorem taxes from the respondent, Elizabeth B. Kimmey, Individually and as the Independent Executrix of the Estate of J. A. Kimmey. Gibralter Life Insurance Company and the Halliburton Company were also named defendants and the State of Texas, Wharton County and the City of El Campo intervened on the side of the School District. The trial court rendered judgment for the taxing authorities after the defendants answered but failed to appear for trial. Since taxpayer Kimmey perfected her appeal to the court of civil appeals, only she and the School District have participated in the case. The lower appellate court reversed and remanded the cause on a point not brought as error to this court, and taxed all costs of appeal against the School District. 566 S.W.2d 363.

In its sole point of error, the petitioner contends the court of civil appeals erred in assessing costs of the appeal against it. We agree. Article 7343 provides that all laws of this state promulgated for the purpose of collecting delinquent taxes are made available to cities, towns and independent school districts. Tex.Rev.Civ. Stat-Ann. art. 7343. Accordingly, article 7297 which provides that the state and county are exempt from liability for any costs growing out of a collection suit is available to school districts. Tex.Rev.Civ. Stat.Ann. art. 7297; see Nacogdoches Independent School District v. McKinney, 513 S.W.2d 5, 5-6 (Tex.1974); Electra Independent School District v. W. T. Waggoner Estate, 140 Tex. 483, 494, 168 S.W.2d 645, 653 (1943). Since cost assessment would be unlawful against any of these taxing authorities, respondent’s alternative contention that costs should be charged to the intervenors is without foundation.

Moreover, it appears that a portion of the total costs are to be assessed against taxpayer Kimmey. In McKinney this court held that where the taxing authority was exempt from liability for court costs, rule 127 of the Texas Rules of Civil Procedure provides that the winning taxpayer is obligated to pay costs that he or she had incurred.

Pursuant to rule 483 of the Texas Rules of Civil Procedure, we grant the writ of error and, without hearing oral argument, reverse the cost order of the court of civil appeals. The cause is remanded to that court for proceedings consistent with this opinion.


text:
    Raymond Edward FRENCH, Petitioner, v. Carrell Lee GRIGSBY, Respondent.
    No. B-7810.
    Supreme Court of Texas.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.
    Flahive & Ogden, T. P. Flahive, Austin, for petitioner.
    Kilpatrick, Grant, Dennis & Reed, Ben Z. Grant, Marshall, Kidd & Whitehurst, Mack Kidd and Thomas R. Harkness, Austin, for respondent.
   PER CURIAM.

Judgment was rendered for plaintiff on the jury verdict in this suit for damages sustained when plaintiff’s motorcycle struck defendant’s automobile which turned across plaintiff’s traffic lane. The court of civil appeals affirmed. 567 S.W.2d 604.

Defendant complains of the trial court’s refusal to submit his requested issues tendering the theory of last clear chance. We agree with the holding of the court of civil appeals that the trial court did not err in this refusal. Since the advent of comparative negligence with the adoption of Art. 2212a, Tex.Rev.Civ.Stat.Ann., this Court has sought to abolish those doctrines directed to the old choice between total victory and total defeat for the injured plaintiff. Davila v. Sanders, 557 S.W.2d 770 (Tex.1977). The doctrine of last clear chance or discovered peril fits that category and it is abolished as an issue or instruction.

The application for writ of error is refused, no reversible error.


author: STEAKLEY, Justice.

text:
    Santiago GONZALES et al., Petitioners, v. CATERPILLAR TRACTOR COMPANY, Respondents.
    No. B-7440.
    Supreme Court of Texas.
    Oct. 11, 1978.

      Page Keeton, Austin, Gochman & Weir, Warren Weir, John Scarzafava and Charles Herring, Jr., Clark, Thornton & Summers, W. Burl Brock, San Antonio, for petitioners.
    Wiley, Plunkett, Gibson & Allen, Robert A. Allen and Ronald Hornberger, San Antonio, for respondents.
   STEAKLEY, Justice.

Santiago Gonzales suffered back injuries when he fell from a step on a Caterpillar tractor. He brought this suit against Caterpillar alleging a design defect in the step and negligent design of the step. Judgment was rendered on the jury verdict in favor of Gonzales for $252,991.05. On appeal by Caterpillar, the Court of Civil Appeals reversed and rendered judgment that Gonzales take nothing in his suit. The court held there was no evidence of either a design defect or of negligent design. 562 S.W.2d 573. We reverse the judgment of the Court of Civil Appeals and remand the cause to that court.

The Caterpillar product involved in this accident was a Model 941 “Traxcavator.” It is a tractor designed to operate primarily as a front-end loader. A large shovel assembly is attached for lifting dirt and other material from the ground. The tractor is mounted on tread or tracks similar to those commonly seen on military tanks. It is designed to operate in muddy or other adverse conditions where wheeled vehicles would not be workable. The machine is controlled from a work station atop the vehicle which contains the operator’s seat and the controls for steering and operating the shovel.

Ingress and egress to and from the work station is accomplished by use of a step mounted on the side of the Traxcavator. The step is located on the undercarriage and is made from a strip of “angle iron” or sheet metal bent into a “U” shape. The open ends of the “U” are welded to the Traxcavator between the upper and lower treads, so that only the narrow edge of the metal strip is used as the step. The rear portion of the “U” is approximately 10 inches across, and a depression of some 8 inches in width is cut in this portion. The purpose of the depression is to prevent the foot from slipping sideways and off the step. The step is designed so that it does not extend outward from the Traxcavator farther than the treads and it is necessary for the operator, while dismounting, to lean away from the vehicle to locate the step. Handholds or “grabirons” are mounted near the work station for the operator to utilize while mounting or dismounting.

Gonzales was dismounting the Traxcavator when this accident occurred. He testified that he was holding firmly to the handholds when he leaned back and placed his foot on the step; and that his foot slipped which caused him to fall. Gonzales was operating the machine at a “caliche pit” on the morning in question and he testified that the ground was very muddy. This testimony was corroborated by a co-worker. Gonzales and the co-worker also testified that mud collected by the track was carried over the step upon rotation of the tread, and that considerable quantities of the mud dropped on the step.

In his trial pleading, Gonzales alleged that the step was defective in four respects in design, and that Caterpillar was guilty of five separate acts of negligence in the design. The alleged defects in design were (1) the step could not be seen by the operator as he was dismounting; (2) the operator was required to lean away from the machine in order to reach the step when dismounting; (3) no adhesive or antiskid material was placed on the step to prevent slippage; and (4) the step was located in such position that mud and dirt adhering to the tread was deposited on the step as the tread revolved. The alleged acts of negligence were in designing the step in these respects, and additionally, in failing to alter the design and placement of the step to cure these alleged defects.

The question of defective design was submitted to the jury in the following form:

“Do you find, from a preponderance of the evidence, that the step on the Model 941 Caterpillar Traxcavator in question, was defectively designed at the time it was sold by defendant, Caterpillar Tractor Company?
“By the term ‘defectively designed’ is meant such a design as would create an unreasonable risk of harm to the ordinary user of the product involved when the product is used in the manner in which it was intended to be used.
“By the term ‘unreasonable risk of harm’ is meant such a risk of harm as is more dangerous than would be contemplated by the ordinary user who uses the product with ordinary knowledge.”

The jury answered that the step was defectively designed which was a producing cause of the occurrence in question. The jury further found that Gonzales did not assume the risk of the defective design.

The question of negligence was submitted to the jury as follows:

“Do you find, from a preponderance of the evidence, that defendant, Caterpillar Tractor Company, negligently designed the step on the Model 941 Caterpillar Traxcavator in question?
“ ‘Negligently,’ or ‘Negligence,’ means failure to use ordinary care, that is to say, failure to do that which a reasonable and prudent manufacturer engaged in the manufacture of like or similar equipment would have done under the same or similar circumstances, or doing that which a manufacturer with ordinary prudence would not have done under the same or similar circumstances.”

The jury answered that the step was negligently designed which was a proximate cause of the occurrence. The jury refused to find that Gonzales was contributorily negligent.

As noted above, the essential holdings of the Court of Civil Appeals were that there was no evidence of a design defect and no evidence of negligent design. The correctness of these rulings is the ultimate question to be resolved.

The trial court defined “unreasonably dangerous” in terms of the ordinary user. Cf. Genera] Motors Corporation v. Hopkins, 548 S.W.2d 344 (Tex.1977), and Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974). There is no complaint of this manner of submission. The question, then, is whether there was evidence that the Model 941 Traxcavator when sold for its intended use was in a defective condition unreasonably dangerous to Gonzales as an ordinary user. See, Green, Strict Liability Under Sections 402A and 402B: A Decade of Litigation, 54 Tex.L.Rev. 1185, 1205-1210 (1976).

Considerable testimony was presented to the jury with respect to the accumulation of mud on and around the step. Gonzales, his co-worker, his expert witness, his employer, and the engineers testifying for Caterpillar, stated that during operation of the Traxca-vator in muddy conditions, mud picked up by the track would fall on and around the step. There was also testimony from witnesses presented by Gonzales and by Caterpillar that mud deposited on and around the step would cling to the undercarriage of the vehicle and would continue to build up until it eventually covered the step. William A. Boyd, the County Commissioner for whom Gonzales worked, described the problem caused by the accumulation of mud as follows:

“Q. Have you ever gotten off the machine, when there wasn’t any mud packed in, but when dirt or debris was in the step?
A. Yes, sir.
Q. Have you ever kicked dirt aside or—
A. Well, if it’s loose dirt, you might kick it off with your toe, but if it’s packed on there, you can’t get it off. It’s packed against the machine, because the whole — when you step, it goes against — well, the track housing under there, where it holds the dirt.”

William E. Conroy, the supervising engineer in the design of the Model 941 Traxca-vator, testified:

“Q. You would agree with Mr. Piepho that sometimes that particular step gets covered with mud that adhers [sic] to that surface?
A. There is mud that collects on the undercarriage.
Q. You've seen that?
A. Yes. I have.
Q. And you have seen mud completely cover the step; have you not?
A. With the machine operating, yes. I have seen it, you know, buried in mud.
Q. Now, when the machine is operating and the mud’s going around on the track, tell the jury where the operator is?
A. Pardon? Would you please repeat?
Q. The operator is up in the operators’ station; isn’t he?
A. Yes.
Q. When the machine is being operated?
A. Yes.
Q. And the mud is being brought up and then dropped in that general track area; is it not?
A. Yes. Okay.
Q. And in — that comports with your experience; doesn’t it?
A. Yes.
Q. And if the step is covered, or the track is largely covered in mud, as you’ve testified you say you’ve seen the Caterpillar 941, the step is pretty useless at that point; isn’t it?
A. I think it depends on the nature of the material. It would be my experience that most mud is very soft, and it could be very soupy. Now the soft and soupy would just run off like water, and I do believe that it does not render the step useless because it is a soft type material. And that you could always get your foot onto the step by kind of making a little hole, digging your foot in, and kicking your foot against the side of the muddy area.
Q. Then, of course, what you’re just saying, you also agree with Mr. Pie-pho that that hole there right behind the step for mud to go through, sometimes doesn’t work and sometimes there is mud sitting up there any way?
A. It’s not perfect. I think it tends to shed material quite readily, but it is possible that material would collect in the general area.
Q. And, so, I guess you’re saying, from the answer that you gave, that it’s the operator’s obligation when exiting the machine, if the step is covered with mud, to kind of kick it off and get it clear; right?
A. I think it’s his obligation to be care-full [sic] in exiting the machine, and to see the conditions that exist and to take due care and caution and do whatever is proper under a given circumstance.”

There was further testimony that anti-skid or adhesive material had not been placed on the step and that the only protection against slippage was the sharp edge of the sheet metal. John R. Frassanito, who testified for Gonzales as an expert, stated that in his opinion, the step was unreasonably dangerous.

Reviewing the evidence in its most favorable light, together with the supporting inferences, and rejecting the contrary evidence and inferences, we hold there was evidentiary support of more than a scintilla for the jury finding of design defect. See Miller v. Bock Laundry Machine Co., 568 S.W.2d 648 (Tex.1977); and Rourke v. Garza, 580 S.W.2d 794 (Tex.1975).

As later noted, this ruling requires a remand to the Court of Civil Appeals for consideration of Caterpillar’s factual insufficiency points. This being so, we will also consider the additional holding of the Court of Civil Appeals that there was no evidence to support the jury finding of negligent design.

In holding there was no evidence of negligent design, the Court of Civil Appeals asserted that there “is little difference between strict tort liability and negligence where the action is against the manufacturer.” 562 S.W.2d at 580. In Rourke v. Garza, supra, we said:

While the definitions of “negligence” and “defective design” may have certain similar or common elements, they involve two separate theories of recovery.

530 S.W.2d at 800. The care taken by the supplier of a product in its preparation, manufacture, or sale, is not a consideration in strict liability; this is, however, the ultimate question in a negligence action. Strict liability looks at the product itself and determines if it is defective. Negligence looks at the acts of the manufacturer and determines if it exercised ordinary care in design and production.

The standard of care required of a manufacturer in the design of products is expressed in Sections 395 and 398 of the Restatement (Second) of Torts (1965), which we quoted with approval in Otis Elevator Co. v. Wood, 436 S.W.2d 324, 327 (1968). Section 395 states that:

A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing physical harm to those who use it for a purpose for which the manufacturer should expect it to be used and to those whom he should expect to be endangered by its probable use, is subject to liability for physical harm caused to them by its lawful use in a manner and for a purpose for which it is supplied.

Section 398, a special application of the rule in Section 395, is entitled, “Chattel Made Under Dangerous Plan or Design.” It states:

A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.

The question, then, is whether there was evidence from which the jury could conclude that the tractor in question was negligently designed by Caterpillar. We hold there was.

There was evidence that the primary consideration in the use by Caterpillar of the step in question was its availability from production of like steps for tractors other than the Model 941. There was evidence that no particular instructions regarding the safety of the step were given to the design engineer on the Model 941 project, and that no tests as to the safety of the step were made after it was incorporated in the Model 941 Traxcavator.

It was also shown that at the time the Model 941 was manufactured and sold, Caterpillar had compiled a “design reference” containing guidelines to be utilized in the design and manufacture of vehicle access systems; two of these guidelines were as follows: .

9. All steps, ladders, and walkways into platform area shall be designed to minimize accumulation of debris from the vehicle wheels and tracks.
10. All steps, ladders, walkways and platforms shall be made of or coated with an “antiskid” material.

It was shown that these guidelines were available to the chief engineer of the Model 941 project for some time prior to final approval and manufacture of the vehicle; and that no corrective action was taken in the light of the guideline requirements. As reviewed earlier, the access step in question was not made of or coated with any form of “antiskid” material. The testimony of the supervising engineer of Caterpillar, quoted earlier, established his recognition that debris and mud would fall upon and adhere to the access step, and that the operator of the machine would be required to “kind of” make “a little hole, digging your foot in, and kicking your foot against the side of the muddy area.”

Reviewing the evidence as we are required to do in the manner heretofore recognized, we hold there was evidentiary support of more than a scintilla for the jury finding that the step in question was negligently designed.

In sustaining Caterpillar’s “no evidence” points, the Court of Civil Appeals stated that it did not reach other points asserted by Caterpillar. Among these were complaints that the evidence was factually insufficient to support the jury findings. These points are within the exclusive jurisdiction of the Court of Civil Appeals. Accordingly, the judgment of the Court of Civil Appeals is reversed and the cause is remanded to that court. See Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex. 1974), and authorities there cited.

      . A portion of this sum, $17,945.68, was awarded to Intervenor, New York Underwriters Insurance Company, on its claim for subrogation arising from the payment of Workers’ Compensation benefits. No contest is made of this award or of the amount.

      . This submission is in terms of one of the alternate tests articulated in Henderson v. Ford Motor Company, 519 S.W.2d 87 (Tex.1974), and General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977).