text:
    Edward HARRIEL, III, Appellant, v. The STATE of Texas, Appellee.
    No. 54845.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 25, 1978.

      Walter M. Sekaly, Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and T. Michael Sutton, Asst. Dist. Atty., Beaumont, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for attempted murder; punishment is imprisonment for twelve years.

The trial court’s failure to appoint counsel to represent appellant during his trial is asserted to be reversible error. The State responds that the appellant attempted to manipulate his right to counsel in such a manner as to obstruct and interfere with the fair administration of justice and that the court did not err in failing to appoint counsel.

Art. 26.04(a), V.A.C.C.P., provides:

“Whenever the court determines at an arraignment or at any time prior to arraignment that an accused charged with a felony or a misdemeanor punishable by imprisonment is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. In making the determination, the court shall require the accused to file an affidavit, and may call witnesses and hear any relevant testimony or other evidence.”

The pivotal issue is whether the court erred in failing to find the appellant indigent, and in failing to appoint counsel to represent him when the appellant would not execute an affidavit stating that he was indigent.

Following are the pertinent facts gleaned from the record. The appellant was already in custody when the indictment was returned by the grand jury on August 14, 1975. Bond was set at $5,000. The appellant, apparently mistaken as to the amount of the bond, sent letters to the trial judge on August 15 and on September 20 requesting that his bond be lowered from $15,000. On September 22, the court informed the appellant in writing that his bond was $5,000 and that when he had counsel his request for reduction of bail could be presented again. The court also informed appellant that counsel would be appointed to represent him if he would sign a form affidavit available in the jail stating that he could not afford private counsel.

On October 1, the appellant demanded a speedy trial. On October 2, the court replied to this request by written memorandum. The memorandum referred the appellant to the court’s earlier memorandum and stated that an affidavit form was attached that he could sign if he was qualified to have counsel appointed. On October 11, the appellant made the $5,000 bond, but he failed to appear in court for a pretrial hearing on October 29 and the hearing was reset for November 7. On that date the appellant appeared without counsel and was advised by the court that he faced serious charges and needed representation of counsel. The appellant was reminded that he had requested a speedy trial. The appellant said he did not need a speedy trial now, he just needed a job so he could hire a named attorney. The hearing was then reset for November 19, and the court told appellant to contact his attorney and to have the attorney present for the November 19 hearing. On November 19, the appellant appeared without counsel and the court set the case for trial on March 16, 1976.

On March 16, the appellant appeared without counsel and the trial judge made the following statement for the record:

“So that the Record may be absolutely clear on this point the Court has on numerous occasions prior to today inquired as to the defendant’s indigency. The Record will reflect that the defendant is out of custody on a private surety bond and he had previously assured the Court on a number of occasions that he was capable and intended to employ private counsel. Numerous resettings of both arraignment and trial matters have been made in order to accommodate the defendant and allow him to obtain counsel of his own choosing. The Court has found and now finds as a fact that the defendant is not indigent and that he has the present ability to secure funds in order to obtain private representation. The defendant has intentionally disregarded the opportunities provided by the Court to obtain counsel, and the trial of this case will proceed with the defendant acting as his own attorney. The Court has previously told the defendant on many occasions that unless he employs an attorney he would be required to represent himself. In an effort to make sure that all of the defendant’s rights are protected, the Court has appointed Honorable Ramie Griffin, Jr., to act as amicus curiae and to represent the Court in this trial. The Court has directed that Mr. Griffin remain with the defendant throughout this trial and to advise him on any matters requested by the defendant, however, Mr. Griffin is not counsel for the defendant and is directed to take no active part in the trial of this case other than providing requested advise to the defendant. In this connection the Court finds that Mr. Griffin is a competent and skillful attorney who practices criminal law on a regular basis in this court and in other courts handling criminal cases in this county.”

Following the trial, at which appellant represented himself, the court appointed counsel to represent the appellant on appeal, but later the appellant retained counsel and made a $15,000 appeal bond.

The accused is entitled to the assistance of counsel in criminal prosecutions. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). However, a trial court is under no duty to appoint counsel for the accused in the absence of a showing of indigency. Sifford v. State, 511 S.W.2d 526 (Tex.Cr.App.1974); Butler v. State, 506 S.W.2d 902 (Tex.Cr.App.1974).

The appellant was advised by the trial court of the need for him to file an affidavit stating that he could not afford counsel so that counsel could be appointed in accord with Art. 26.04, V.A.C.C.P. The appellant failed and refused to execute such an affidavit. Although an affidavit of indi-gency is not required where the accused otherwise makes known to the trial court that he is indigent, Simmons v. State, 511 S.W.2d 308 (Tex.Cr.App.1974); Robinson v. State, 458 S.W.2d 75 (Tex.Cr.App.1970), no suggestion of indigency was ever made by the appellant prior to his trial. Indeed, appellant informed the court during a pretrial hearing that he intended to employ counsel. In addition, he was able to obtain a $5,000 surety bond to secure his release from jail pending trial. The ability to secure such a bond is not, standing alone, sufficient to warrant a refusal to appoint counsel, Simmons v. State, supra, but may be considered by the trial court in determining whether an accused is indigent. Foley v. State, 514 S.W.2d 449 (Tex.Cr.App.1974).

We hold that the trial court did not err in failing to find the appellant indigent, or in failing to appoint counsel when the appellant refused to execute an affidavit of indi-gency. The appointment of an attorney to be available during the trial should appellant request advice was proper under the circumstances. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Wiggins v. State; 520 S.W.2d 780 (Tex.Cr.App.1975).

The judgment is affirmed.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Dan Allen WILKES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 55179.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Oct. 25, 1978.
    Charles L. Caperton, Dallas, for appellant.

      Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, Jim D. Yollers, State’s Atty., Austin, for the State.
    Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana, wherein the jury assessed punishment at five (5) years in the Department of Corrections and a $5,000.00 fine.

In his sole ground of error, appellant contends that the evidence is insufficient to support the verdict.

The record reflects that at approximately 12:05 a. m. on April 29, 1976 Officer John Aycock of the Texas Department of Public Safety received a phone call from an agent in the department’s Dallas office. After receiving this call, Aycock and several other agents set up surveillance for a Chevrolet pickup with a camper and a 1975 Blazer, allegedly traveling together. Aycock testified that he set up his surveillance on Interstate 35 close to Waco and directed the other two agents to set up between Waco and Temple.

At approximately 1:15 a. m., Aycock observed the vehicles traveling in a southerly direction or> Interstate 35 in the direction of Temple. Aycock and the other officers followed the two vehicles to Temple, where they stopped for a short time at a restaurant and continued on to the Temple airport. When the vehicles reached the airport, Aycock withdrew his personal surveillance in favor of Department of Public Safety agents already set up to watch the airport. One of these officers, Agent Ronald Tucker, testified that he saw the vehicles enter the airport at approximately 1:35 a. m. Tucker stated that his surveillance took place from a nearby cemetery and was aided by the use of binoculars.

According to Tucker, the Blazer parked in front of the terminal to the airport while the pickup drove on to an area where airplanes were tied down and backed up to the side of the twin engine craft. Due to weather conditions and the position of the pickup, Tucker was unable to see what took place next but stated that: “They appeared to be moving something is all I could tell, back and forth from the pickup to the plane.” Shortly after this, the pickup pulled away from the plane and drove to the terminal at which the Blazer was parked. A few moments later, both vehicles drove through the main gates of the airport, where they were stopped by Aycock and the other two officers who had been waiting there.

The record reflects that both vehicles were searched. Thirty-one “compacted packages” containing 572 pounds of marihuana were found in the pickup camper and its driver, Michael Gafney, was arrested. A ground to air radio was also found in the pickup. Several maps of “Mexico and South American type terrain,” a transmitter and a following device detector were found in the Blazer, which was driven by the appellant. Also found in the Blazer were rental receipts for airplane seats from the twin engine airplane observed by Agent Tucker and an electronic transmitter-detector. In addition to these items, the officers found the key to the same airplane in the possession of Tom Walden, a passenger in the Blazer at the time of the stop. Upon searching the airplane, the officers found what were described as marihuana “sweepings and seeds and so forth.” No marihuana was found in the Blazer or on the person of the appellant.

An accused may with another or others jointly possess dangerous drugs or narcotics. Thus, possession of such items need not be exclusive and evidence that the accused jointly possessed narcotics with others is sufficient to sustain a conviction. Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976); Woods v. State, 533 S.W.2d 16 (Tex.Cr.App.1976); Curtis v. State, 519 S.W.2d 883 (Tex.Cr.App.1975), and cases cited therein. It must be remembered, however, that mere presence alone at a place where narcotics or dangerous drugs are being used or possessed by others does not justify a finding of joint possession. Ayers v. State, 570 S.W.2d 926 (# 55,365, delivered 9/5/78); Brooks v. State, 529 S.W.2d 535 (Tex.Cr.App.1975); Harrison v. State, 555 S.W.2d 736 (Tex.Cr.App.1977). It has been consistently held in this state that possession means more than just being where the action is; the State must prove two elements: (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Harrison v. State, supra; Curtis v. State, supra; Payne v. State, 480 S.W.2d 732 (Tex.Cr.App.1972). Therefore, there must be additional independent facts and circumstances which affirmatively link the accused to the contraband in such a manner that it can be concluded he had knowledge of the contraband as well as control over it. Ayers v. State, supra, and cases cited therein. In the case at bar, the State contends that the discovery of appellant in one of the vehicles which had been under surveillance from Waco to the Temple airport was sufficient to affirmatively link him to the contraband found in the other vehicle. Based upon the record which has been presented for our review in this cause, we cannot agree with this contention.

The record reflects that the appellant was seen driving the 1975 Blazer to the Temple airport. Agent Tucker testified that the Blazer parked in front of the terminal of the airport and did not proceed with the pickup camper to where the airplanes were parked. Nowhere does the record indicate that the appellant came into contact with the airplane in question or that he was present when the pickup truck parked next to the airplane. In fact, the record reflects that he was inside the Blazer, which was parked some distance away. Although he was seen driving the Blazer, the record shows that the owner of the Blazer was Walden. Moreover, no contraband was shown to have been found on appellant’s person or in the Blazer. There was no showing that airplane seats were placed in the Blazer on the night in question, no evidence of furtive gestures toward the contraband, no attempt to escape, no evidence of marihuana smoke, no evidence of the appellant being under the influence of marihuana or other drugs, and no incriminating statements at the time of the arrest. While not above suspicion when viewed in the light most favorable to the jury’s verdict, we cannot conclude the evidence is sufficient to affirmatively link the appellant to the contraband seized in the other vehicle.

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, the United States Supreme Court by opinion on June 14, 1978, held that the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient . . . .” In Green v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, handed down the same day as the Burks decision, the Supreme Court held, “Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland [395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)], we are bound to apply the standard announced in Burks to the case now under review.”

Having found that reversal must result in the instant case since we concluded that the evidence is insufficient to support the conviction, the Supreme Court’s decisions in Burks v. United States, supra, and Greene v. Massey, supra, dictate that no further prosecution be had in this cause.

The judgment of conviction is set aside and is reformed to show an acquittal.

For the reasons stated, the judgment is reversed.


author: VOLLERS, Judge.

text:
    George Eugene ANTWINE, Appellant, v. The STATE of Texas, Appellee.
    No. 55203.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary Love, John Ovard and James K. Johnson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

VOLLERS, Judge.

On October 28, 1974 appellant was tried for the offense of murder. A jury determined that he was guilty and assessed his punishment at confinement for life.

By ground of error number one the appellant complains that the appellant should not have been convicted in this cause because he had previously been acquitted of the same offense. The record reflects that on September 11, 1974 this cause was tried on the same indictment before a jury. During the deliberations of the jury on September 13, 1974 a note was sent to the court stating:

Judge Metcalf, we are hopelessly deadlocked in our effort to reach a verdict. It is the desire and request of the entire jury that the evidence be reopened, because the evidence presented is insufficient and inclusive, making a true verdict impossible.

At that time the trial judge ordered the jury to continue their deliberations and instructed them that the evidence could not be reopened. After several hours of deliberation the jury reported that they were hopelessly deadlocked and the trial judge declared a mistrial. The record further shows that upon receipt of the abovemen-tioned message from the jury appellant moved for a judgment of acquittal and objected to the instruction of the court. It is the appellant’s contention in this cause that this note from the jury constituted a “special verdict” of acquittal. Appellant’s interpretation of this note is that it clearly reflects that the jury unanimously believed the evidence presented by the State was insufficient and inconclusive to prove beyond a reasonable doubt that the appellant was guilty as charged and that such a belief by the jury supported only a verdict of not guilty which the jury apparently refused to write.

Since the record in the first trial is not before us, we can only assume that the trial judge gave the jury proper verdict forms to find the appellant either guilty or not guilty in that trial. Since the jury did not use one of these verdict forms to either find the appellant guilty or not guilty the question is then raised as to whether or not this constituted an informal verdict under the provision of Article 37.10, V.A.C.C.P. From the guidelines set forth in that statute, it would appear that the trial judge should have entered a. judgment of acquittal if this was an informal verdict and “it manifestly appear that' the verdict is intended as an acquittal; . . . ”

The note from the jury specifically points out that they were hopelessly deadlocked in their “efforts to reach a verdict.” When read in conjunction with the first sentence, the second sentence merely points out that the evidence was insufficient and inconclusive for all of the jurors to agree upon a verdict. This interpretation is strengthened by the subsequent discharge of the same jury which was hopelessly deadlocked.

A stronger fact situation was presented in Robinson v. State, 23 Tex.App. 315, 4 S.W. 904 where the jury, in a trial for robbery, returned a verdict finding the defendant guilty of theft, but assessing a punishment of 30 years confinement in the state penitentiary. Since the maximum punishment was 10 years for such theft, the verdict was illegal and the Court of Appeals found that it did not operate as an acquittal. The Court said “an informal — and with greater reason, an illegal — verdict may be rejected by the Court, and will not operate as an acquittal, unless plainly intended.” [Emphasis added.]

It appears that the note in question here was not plainly intended as a verdict nor, even if it had been, was it plainly intended as an acquittal. The trial judge properly overruled the appellant’s plea of former jeopardy. Appellant’s ground of error number one is overruled.

By ground of error number two the appellant complains that the trial court committed reversible error in allowing the witness Shirley Hudson to testify that persons in jail had threatened to hurt or kill her if she testified against appellant. It is appellant’s contention that the testimony was not admissible because it did not connect the appellant with the making of such threats in any manner.

It must be remembered that the conduct of the accused showing a consciousness of guilt, such as the suppression of the testimony of a witness, would be admissible as a circumstance tending to prove that he committed the act with which he is charged. Love v. State, 35 Tex.Cr.R. 27, 29 S.W. 790; Savage v. State, 75 Tex.Cr.R. 213, 170 S.W. 730; Maddox v. State, 163 Tex.Cr.R. 5, 288 S.W.2d 780. In order for this evidence to be admissible, it would indeed be necessary to show that it emanated from the appellant. However, it appears that the testimony in question here was elicited on redirect examination by the prosecutor after the appellant, on cross examination of this witness, had established that she had, at a prior trial, refused to testify on the grounds of self incrimination. On redirect examination the prosecutor was allowed to show that the witness was in jail at the time she exercised this right and that persons in jail had threatened to hurt or kill her when she returned to jail if she testified against the appellant. From this it appears that the testimony was allowed to enable the witness to explain why she had refused to testify at a prior trial after the appellant had injected this prior act as an attempt to refute and discredit her testimony. The trial judge properly allowed this explanation. Hooper v. State, 72 Tex.Cr.R. 82, 160 S.W. 1187 (1913); Comegys v. State, 70 Tex.Cr.R. 495, 156 S.W. 642 (1913); James v. State, 63 Tex.Cr.R. 75, 138 S.W. 612 (1911). “The defendant or any other witness is entitled to explain any fact tending to create a distrust of his integrity or truthfulness.” Branch’s Ann.P.C., 2nd Edition, Volume 1, p. 133, Section 17. Appellant’s ground of error number two is overruled.

By ground of error number three the appellant complains that reversible error was committed by the trial court in allowing the testimony of Officer Rowland to show the jury how prisoners from the Dallas County Jail could communicate with one another on different floors. First of all, this testimony was relevant to the issue of how threats were communicated to the witness Hudson. Secondly, the same testimony was received without objection by the testimony of the witness Hudson. Error is not preserved where the complained of evidence is received without objection from another source. Watson v. State, 532 S.W.2d 619 (Tex.Cr.App.); Doggett v. State, 530 S.W.2d 552 (Tex.Cr.App.); Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.).

By ground of error number four the appellant complains that the prosecutor’s argument constituted reversible error because it was a comment upon the defendant’s failure to testify. The argument complained of was:

You see, all the evidence in this case you have heard, every single iota and bit tells you one thing, that the defendant is a murderer. . . . That is why I am interested in this defendant under the evidence as all of the defendant and all of the testimony involved in each and everything, tells you he is guilty beyond a reasonable doubt.

When this argument was made the appellant objected on the ground that the argument constituted a comment upon the defendant’s failure to testify. At this point the prosecutor stated:

All the evidence about the defendant is what I mean, Your Honor.

The trial court did not commit error in overruling the appellant’s objection to this argument. In order for an argument to constitute a comment upon the appellant’s failure to testify, it must either be a direct comment or a necessary inference from the argument made. An examination of this argument reveals that there was a slip of the prosecutor’s tongue which resulted in a jumble of words saying that “all of the defendant and all of the testimony involved in each and everything, tells you he is guilty. . . .” This certainly did not directly tell the jury that the defendant failed to testify, and it certainly was not a necessary inference, especially where it was immediately explained by the prosecutor. Appellant’s ground of error number four is overruled.

By ground of error number five the appellant complains that the prosecutor committed reversible error in arguing that cross examination by appellant’s counsel as to the communication system through the use of the commode in the Dallas County Jail was based upon what the appellant had advised his counsel. Appellant complains that such argument was outside the record.

The complained of argument was as follows:

When Shirley testified as to how they communicated threats to her, through the commode system, it was kind of a joke with Mr. Dade, like, ‘Hey, that is kind of incredible that they can do anything like that,’ didn’t they? Mr. Fitzgerald said— Mr. Fitzgerald said he didn’t, they didn’t know much about those things, but yet did you hear Mr. Dade’s cross examination as to the towels and how they did it, every bit of it? Who do you think tells him that—
MR. DADE: Your Honor, please, that is not so. That argument cannot possibly be made in good faith, and I object to it on that basis, and again I think it is outside the record.
THE COURT: Overruled.
MR. FITZGERALD: The argument goes into the attorney-client relationship, Your Honor, and what he is saying, is that my client told either myself or Mr. Dade something about the testimony that he is introducing, and that is not the case.
THE COURT: Just a minute—
MR. FITZGERALD: What we know is what we know from being on his side.
THE COURT: The court understands your objection. Your objection is overruled. Go ahead, Mr. Ovard.

The appellant’s contention that the argument was outside the record is not sustained by the record. The prosecutor’s argument was based upon what the jury observed and heard in the courtroom, which is clearly within the record. The prosecutor’s suggestion, as an inference from what happened in the courtroom, is only a deduction from what the jury had the opportunity to see and observe. Therefore, the appellant’s contention on appeal that this is outside the record is not sustained. Appellant’s ground of error number five is overruled.

By ground of error number six the appellant again complains of the prosecutor’s argument and alleges that he committed reversible error in his jury argument by arguing facts outside the record to bolster the State’s witness. The complained of argument was that

. the lady Shirley Jackson went to the police, she gave them a statement at the time, and that gives the police time to check it, to corroborate it through the physical evidence, and decide whether she is telling the truth.
MR. DADE: Your Honor, please, there is absolutely no testimony that this was done in this case.
THE COURT: The jury will recall the evidence, Mr. Dade. Go ahead.

The record clearly reflects that approximately two hours after her release by appellant and three others Miss Hudson called the police and reported what had happened to the deceased and herself. She gave the police a statement concerning the offense and showed them where the body was and where certain physical objects had been thrown. The police had already found the body and were already in a position to be aware of some of the evidence that was covered by Miss Hudson’s statement. Therefore, it was a legitimate deduction from the evidence that the police did have time to check the statement, corroborate it through physical evidence and decide whether she was telling the truth. It should be noted that the argument did not state as a fact that the police did decide whether or not she was telling the truth, but only that they had time to decide.

Since the argument was based upon the record, and reasonable deductions therefrom, the trial judge did not err in overruling the appellant’s objection to this argument. Appellant’s ground of error number six is overruled.

By appellant’s ground of error number seven he complains that the prosecutor commented upon the defendant’s failure to testify. The argument complained of is as follows:

Now, I think there is something — let’s just use a little common sense. You know everybody has to be somewhere at a particular or given time. Tonight you may be at home with your family, or be with your brother or your sister, your husband or wife, whatever, you are going to be somewhere with somebody, and that person could come down and tell the jury, whoever, where that person was, and that applies to the defendant, too.

It must be remembered that Article 38.-08, V.A.C.C.P. which prohibits a comment upon the defendant’s failure to testify is not infringed by language which might be construed as an implied or indirect allusion to the failure of the accused to testify. To be in violation of that statute the implication must be a necessary one, and not one that can reasonably be applied to the failure of the accused to produce testimony other than his own. It appears that the argument in question is a comment upon the defendant’s failure to produce testimony other than his own.

A similar argument was held not to be an allusion to the defendant’s failure to testify in Gallegos v. State, 49 Tex.Cr.R. 115, 90 S.W. 492. In that case the prosecutor argued

Where was the defendant and his brother Elijio on the night that Antonio Montoya was murdered? Defendant is a married man, with a wife and children. Why does he not show where he ate his supper on that night? Why does he not show where he slept on that night? Again, I ask where was he on that night? Defendant has friends. Why does he not introduce witnesses to establish his whereabouts on that night?

See also Boone v. State, 90 Tex.Cr.R. 374, 235 S.W. 580; Cope v. State, 118 Tex.Cr.R. 232, 39 S.W.2d 891; Alvear v. State, 170 Tex.Cr.R. 378, 341 S.W.2d 426; Curlin v. State, 500 S.W.2d 141 (Tex.Cr.App.); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.); Brown v. State, 475 S.W.2d 761 (Tex.Cr.App.). Appellant’s ground of error number seven is overruled.

There being no reversible error the judgment of the trial court is affirmed.

      . Article 37.10, V.A.C.C.P. provides:
      If the verdict of the jury is informal, its attention shall be called to it, and with its consent the verdict may, under the direction of the court, be reduced to the proper form. If the jury refuses to have the verdict altered, it shall again retire to its room to deliberate, unless it manifestly appear that the verdict is intended as an acquittal; and in that case, the judgment shall be rendered accordingly, discharging the defendant.


author:
TOM G. DAVIS, Judge.
      VOLLERS, Judge,

text:
    John Michael ARDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 55248.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.
    Ray A. Bass, III, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and R. P. Cornelius, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State.
    Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for aggravated promotion of prostitution. V.T. C.A. Penal Code, Sec. 43.04. The jury assessed punishment at two years and a $5,000 fine.

We are initially confronted with a fundamentally defective indictment which requires review as unassigned error “in the interest of justice.” Art. 40.09, Sec. 13, V.A.C.C.P. See Zachery v. State, 552 S.W.2d 136 (Tex.Cr.App.1977).

The indictment in the instant case, omitting its formal parts, alleges that on or about August 29, 1975, the appellant:

“did then and there unlawfully own and invest in and finance and control and supervise and manage a prostitution enterprise that uses two prostitutes in that the said John Michael Arden did then and there manage a call-girl operation using two prostitutes, to wit: Jeanine Young Washburn and Marilyn Miller Cannon.”

V.T.C.A. Penal Code, Sec. 43.04(a), “Aggravated promotion of prostitution,” reads:

“A person commits an offense if he knowingly owns, invests in, finances, controls, supervises, or manages a prostitution enterprise that uses two or more prostitutes.” [Emphasis added.]

The indictment in the instant case is substantially the same as the indictment found fundamentally defective in the recent case of Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978). As in Chance, the indictment herein failed to allege an essential element of the offense, the culpable mental state “knowingly,” and is fundamentally defective. Chance v. State, supra.

The judgment is reversed and the prosecution under the indictment is ordered dismissed.

VOLLERS, Judge,

concurring.

While I still find it exceedingly difficult to understand how a person can “manage” a prostitution enterprise that uses two prostitutes without doing it “knowingly” (see dissent, Chance v. State, 563 S.W.2d 812 (Tex.Cr.App.1978)), I also realize that a majority of this Court has held to the contrary. Chance v. State, supra. Since I am bound by a determination of the majority, no matter how misguided, I must vote to concur in the result reached in this case. I concur.

DOUGLAS, J., joins in this concurring opinion.


text:
    Joseph Dories MATTE, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 57438.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.
    Joe B. Goodwin, Beaumont, for appellant.
    Tom Hanna, Dist. Atty. and William G. Ogletree, Asst. Dist. Atty., Beaumont, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

VOLLERS, Judge.

This is an appeal from a revocation of probation. On July 27, 1976 the appellant was convicted of aggravated assault with a deadly weapon and he was placed on probation for a period of ten years. One condition of probation was that appellant “commit no offense against the laws of Texas, or any other state, the United States or any other governmental entity.” On April 25, 1977 a motion to revoke probation was filed alleging that the appellant had violated the terms of his probation:

(1) By committing the offense of knowingly making a false written statement to a licensed firearms dealer, an offense against the laws of the United States of America in that on or about the 11th day of March, 1977, in Groves, Jefferson County, Eastern Judicial District of Texas, Joseph Dories Matte, Jr., did in connection with the acquisition of a firearm, to wit: a Smith & Wesson, .38 caliber revolver, serial number R110101, from a licensed dealer, The Rifleman, Federal Firearms license # 5 74 123 01 M7 17182, 5160 Twin City Highway, Groves, Jefferson County, Texas, knowingly make a false written statement to licensed firearms dealer, intended and likely to deceive such dealer with respect to any fact material to the lawfulness of the sale of such firearm under the provisions of this chapter, in violation of U.S.C. Title 18, Section 922(a)(6).

A hearing was held on the motion to revoke on May 11, 1977, after which the trial court revoked appellant’s probation, reduced appellant’s punishment to five years confinement and pronounced sentence.

The record reflects that at the beginning of the hearing on the motion to revoke probation, after the State had announced ready, the appellant made a motion to quash the motion to revoke because the motion did not properly apprise the appellant of the type of false statement that was made to the licensed firearm dealer nor did it identify the person to whom the statement was made. With the court’s permission, this motion was treated as if it were filed prior to the beginning of the hearing. The trial court overruled the motion to quash.

Appellant complains that the trial court erred in refusing to quash the motion to revoke probation because it did not name the person to whom the appellant was alleged to have made the false statement. The motion charges appellant with having made a false written statement to a licensed firearm dealer, named as “The Rifleman, Federal Firearms license # 5 74 123 01 M7 17182, 5160 Twin City Highway, Groves, Jefferson County, Texas.” This allegation certainly is sufficient to apprise the appellant of the element of the federal offense he was alleged to have committed. Compare United States v. White, 451 F.2d 696, 697, n.1 (5th Cir. 1971).

A more serious matter is presented by the appellant’s contention that the trial court erred in refusing to quash the motion to revoke probation because it failed to properly apprise the appellant of what false statement he was alleged to have made. The appellant relies on Burleson v. State, 429 S.W.2d 479 (Tex.Cr.App.1968) and Crow v. State, 49 Tex.Cr.R. 103, 90 S.W. 650 (1905). Both of these cases deal with perjury indictments. This Court has consistently held that a motion to revoke probation need not be as specific in its content as an indictment or information, Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976); Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970).

While we do not believe that cases involving perjury indictments are comparable to the pleading necessities involved in a motion to revoke probation, we are concerned that the motion to revoke probation be sufficient, when a motion to quash is presented, to give the accused sufficient information so that he can properly defend against the charge made. As was previously noted, U.S.C. Title 18, Section 922(a), (b) prohibits the making of a false or fictitious statement in the acquisition of a firearm from a licensed dealer which is intended or likely to deceive such dealer with respect to any fact material to either the lawfulness of the sale or other disposition of such firearm. This has been interpreted to include the making of a false statement regarding commitment to a mental institution, making a false statement regarding dishonorable discharge from the military, and giving a false name and address and date of birth, even though the person making same was not a prohibited buyer. Therefore, it is apparent that there is an extremely broad range of possible statements which could have been made by the appellant to the firearms dealer in violation of the federal statute in question, and the allegations in the motion to revoke certainly gave the appellant no notice of the nature of the statement to be relied upon in proving his violation of this statute.

In Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970) the appellant’s probation was revoked upon a motion which alleged that he had failed “to avoid injurious or vicious habits.” This Court held that such an allegation was insufficient to inform the appellant in that case how he had violated the condition of his probation that he avoid injurious or vicious habits. “The habit or habits was not spelled out nor was the appellant informed as to whether the habit or habits was injurious or vicious or both.” 456 S.W.2d 918 at 921. This Court then went on to point out that such a general allegation failed to enable the appellant to prepare a defense and in the face of his timely exception denied him due process of law.

In Garner v. State, 545 S.W.2d 178 (Tex.Cr.App.1977) this Court was faced with the review of a revocation of probation upon a motion which alleged that “on or about December 16, 1974, the defendant committed the offense of theft in Harris County, Texas.” This Court held that “the accused was entitled to have the motion to revoke set forth in clear language the violation of the order of probation relied on for revocation.” 545 S.W.2d 178 at 179.

In light of these cases it appears that the conclusory allegation that appellant made a “false written statement to a licensed firearm dealer” was not sufficient, in the face of his timely exception, to give him sufficient notice for which he could prepare for the hearing on such motion. It did not inform him of the nature of the statement made so that he could properly prepare to prove that it was not false or to prove that it was not material. Appellant was denied due process in that he, as a result of overruling his exception to the motion to revoke probation, was denied the proper notice necessary to afford him the opportunity to defend against the charge.

The judgment revoking the probation is reversed and this cause is remanded to the trial court.

      . 18 U.S.C. Section 922 provides in relevant part:
      (а) It shall be unlawful—

      (б) for any person in connection with the acquisition ... of any firearm . from a licensed dealer, knowingly to make any false or fictitious oral or written statement . . ., intended or likely to deceive such . . dealer, . with respect to any fact material to the lawfulness of the sale or other disposition of such firearm . . . under the provisions of this Chapter.

      . This Court will likewise treat the motion to quash as timely filed.

      . U. S. v. Seidenberg, 420 F.Supp. 695 (D.Md.1976).

      . U. S. v. Thomas, 484 F.2d 909 (1st Cir. 1973), cert. denied, 414 U.S. 912, 94 S.Ct. 253, 38 L.Ed.2d 151.

      . U. S. v. Crandall, 453 F.2d 1216 (1st Cir. 1972).


author: DALLY, Judge.

text:
    Mark MORANO, Appellant, v. The STATE of Texas, Appellee.
    No. 58968.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.
    James H. Kreimeyer, Belton, for appellant.
    Arthur C. Eads, Dist. Atty. and James T. Russell, Asst. Dist. Atty., Belton, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana. The punishment is imprisonment for five years. The appellant waived a jury trial and without a recommendation from the State concerning the punishment to be assessed entered a plea of guilty before the court.

The appellant complains that the local rules for the courts in Bell County unlawfully prevent him from entering into a plea bargain and that he should have been allowed to withdraw his plea of guilty. He also complains of sentencing guidelines used by the judges in Bell County to assess punishment.

The appellant argues that since Art. 26.13, V.A.C.C.P. sanctions plea bargains, this Court should hold all defendants charged with felonies have an absolute right to enter into plea bargains. This argument is not sound. It is no more reasonable to argue that the State must enter into a plea bargain with every defendant than to argue that every defendant must plead guilty and enter into a plea bargain. We do not interpret Art. 26.13, V.A.C.C.P. to require plea bargains.

When a defendant waives a jury, the trial judge has discretion to assess the punishment within the range provided by law which he finds appropriate in the circumstances. Furthermore, a trial judge may in every case or in any particular case refuse to allow plea bargaining and he may refuse to allow the prosecutor to offer recommendations concerning the punishment to be assessed. The defendant does not have an absolute right to enter into a plea bargain.

In Bell County in most cases the judges do not allow plea bargaining; this is announced and provided for in the local rules. The appellant and his attorney were aware of these rules before the plea of guilty was entered. The trial court did not err in refusing to permit the appellant to withdraw his plea of guilty at the time of sentencing after the court had refused to grant probation.

Defendants should be treated the same when they have similar backgrounds and commit criminal offenses in similar circumstances. To accomplish this purpose judges in Bell County have published as part of the local rules guidelines which they use in assessing punishment. A full discussion of the use of sentencing guidelines by trial judges in assessing punishment may not be appropriate here. However, trial judges in other jurisdictions are making innovative use of sentencing guidelines. These guidelines help judges in their attempts to eliminate disparity of punishment. Also, the use of guidelines properly formulated will return to trial judges their discretion in assessing punishment and sentencing defendants, which they have lost because of plea bargaining. We should encourage those seeking to eliminate disparity in assessment of punishment and in returning the proper discretion to trial judges. Sentencing guidelines may help accomplish these laudable goals.

Trial judges have discretion in assessing punishment; we find no abuse of that discretion by the Bell County judges in using guidelines to aid them in exercising their discretion.

The judgment is affirmed.

      . Art. 26.13, V.A.C.C.P. provides:
      “(a) Prior to accepting a plea of guilty or a plea of nolo contendere, the court shall admonish the defendant of:
      “(1) the range of punishment attached to the offense; and
      “(2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court. Provided that the court shall inquire as to the existence of any plea bargaining agreements between the state and the defendant and, in the event that such an agreement exists, the court shall inform the defendant whether it will follow or reject such agreement in open court and before any finding on the plea. Should the court reject any such agreement, the defendant shall be permitted to withdraw his plea of guilty or nolo contendere, and no statement or other evidence received during such hearing on the defendant’s plea of guilty or nolo contendere may be admitted against the defendant on the issue of guilt or punishment in any subsequent criminal proceeding.
      “(b) No plea of guilty or plea of nolo conten-dere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.
      “(c) In admonishing the defendant as herein provided, substantial compliance by the court is sufficient, unless the defendant affirmatively shows that he was not aware of the consequences of his plea and that he was misled or harmed by the admonishment of the court.”


author: ODOM, Judge.

text:
    Melvin JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 59716.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Oct. 25, 1978.

      Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

Appellant waived trial by jury and entered a plea of guilty before the court to information which charged that he did “knowingly and intentionally possess a dangerous drug, namely TETRACYCLINE”. Punishment was assessed at 30 days in jail.

The record is before us without a transcription of the court reporter’s notes or bills of exception. No brief was filed in the trial court in appellant’s behalf pursuant to Article 40.09(9), Vernon’s Ann.C.C.P., and none has been found here. There is no showing of indigency.

The term “dangerous drug” is defined by Section 2(a) of Article 4476-14, Vernon’s Ann.Civ.St. There it is stated:

“The term ‘dangerous drug’ means any drug or device that is not included in Schedules I through V of the Texas Controlled Substances Act and that is unsafe for self-medication, and includes the following:
“(1) Tranquilizers.
“(2) Procaine, its salts, derivatives, or compounds or mixtures thereof except ointments and creams for topical application containing not more than two and one-half percent (2½%) strength.
“(3) Any drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription, or the legend: Caution: federal law restricts this drug to use by or on the order of a licensed veterinarian.
“(4) Phendimetrazine, its salts, derivatives, or compounds or mixtures thereof.
“(5) Pentazocine, its salts, derivatives, or compounds or mixtures thereof.”

It may be seen that the statute does not specifically designate Tetracycline as a dangerous drug.

In Crockett v. State, 511 S.W.2d 519 (Tex.Cr.App.1974), the defendant was convicted for the misdemeanor offense of attempting to obtain a dangerous drug, to-wit: Talwin, by use of a forged prescription. The defendant contended that the information was fundamentally defective because Tal-win was not listed as a “dangerous drug” in Section 2, Article 726d, Vernon’s Ann.P.C. (1925), the forerunner of Section 2, Article 4476-14, supra. The State argued that Tal-win was a dangerous drug under the statute because, in addition to the drugs listed by name in the statute, a dangerous drug was also defined as “any drug or device which bears the legend: Caution: federal law prohibits dispensing without prescription. . The State further contended that the evidence showed that Tal-win was a drug which contained such a label and that whether Talwin was a dangerous drug was a matter of proof and not of allegation. This Court disagreed, stating:

“In the instant case the information alleged the name of the drug in question but the drug so named was not one of the ‘dangerous drugs’ enumerated by name in Section 2, Article 726d, V.A.P.C.
“If the drug in question is defined as a ‘dangerous drug’ only because it contains the label, ‘Caution: federal law prohibits dispensing without a prescription . then the information must contain such allegation. There is nothing in the information in the instant case informing appellant that he is charged with attempting to obtain a drug containing such a label. The information merely alleged appellant was charged with attempting to obtain Talwin which was not expressly named in the statute as a dangerous drug.
‡ ⅜ % ⅜ ⅜ *
The information in the case at bar fails to allege that appellant committed a criminal offense.”

Based on the decision in Crockett v. State, supra, the judgment in the instant case is reversed, and and the prosecution under the present complaint and information is ordered dismissed.


author: PEDEN, Justice.

text:
    RIVERSIDE NATIONAL BANK et al., Appellants, v. James LEWIS, Appellee.
    No. 17113.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 3, 1978.
    Rehearing Denied Oct. 12, 1978.

      Barrow, Bland & Rehmet, Charles J. Wilson, Kenneth C. Raney, Jr., Houston (On appeal only), for appellants.
    Haynes & Fullenweider, Robert B. Wallis, Jan Woodward Fox, Houston, for appellee.
   PEDEN, Justice.

Riverside National Bank and its former employee, Arthur Carroll, appeal from an adverse judgment in a suit filed by James Lewis based on the bank’s refusal to honor its loan commitment. The jury found that the bank’s refusal was malicious, amounted to wrongful dishonor of a draft, constituted fraud on the plaintiff, and violated the Texas Deceptive Trade Practices Act. The jury determined actual and punitive damages and fixed reasonable attorneys’ fees. Although the jury found that Lewis gave false information in his loan application, it declined to find that such information was material or that the bank was justified in refusing to make the loan. The trial judge granted part of the defendants’ motion for judgment n.o.v. in that he disregarded the jury’s findings based on the Deceptive Trade Practices Act and those fixing attorneys’ fees.

Appellants contend that the evidence was legally and factually insufficient to support the jury’s failure to find that the false information on the loan application was material and say they proved conclusively that the bank’s action was justified. Appellants also assert that there were no pleadings and no evidence or insufficient evidence to support the findings of wrongful dishonor, fraud, actual damages, punitive damages, the defendants’ knowledge that damage would result, and malice. The appellee presents five cross-points, asserting error in the court’s failure to enter judgment for treble damages and attorneys’ fees on the jury’s finding of a violation of the Deceptive Trade Practices Act. We reform the judgment and affirm.

In February, 1975, Lewis purchased a new Cadillac El Dorado. Allied Bank provided almost $10,500 in financing and accepted a security interest in the car and a $6,000 certificate of deposit of security. Lewis did not make the first payment, due on April 10, and a check he gave a few days later was returned for insufficient funds, so Mr. Little, Lewis’ loan officer at Allied Bank, asked him to move the loan to another bank. Lewis was unsuccessful in attempts to obtain refinancing at two other lending institutions, then on May 2 he went to Riverside Bank, where Arthur Carroll helped him complete a loan application. Carroll told Little the bank was investigating the application. Some ten days later, Carroll called Lewis and told him the loan had been approved. Lewis signed the note on May 15, 1975. It is not clear why he did not execute security agreements at that time. He admitted that there are some incorrect entries on the application he filed with Riverside Bank. His average monthly income of $2,800 was not net income, as stated, but gross income, and his payment to Allied Bank was not due on May 10, as stated, but had been due since April 10. Lewis testified that he had told Carroll the figure given was gross income and that a payment had been due on April 10 but that Carroll had told him to answer it as he did. Lewis testified that the first notice he had that the loan had not been funded was when Little at Allied Bank called him several days later. No one from Riverside ever did. Allied Bank repossessed the car on May 16 or 17 and it was sold at auction on June 3.

We review the testimony of Little. Carroll told him around the 1st or 2nd of May that Lewis had applied. On May 6 Carroll called, said the senior officer had a question on it but that the loan had been approved, and gave Little instructions on drafting the funds and forwarding car title and the C. D. After Little had followed those instructions, he called Carroll on May 14 to see why the draft had not been paid, and was told that it would be. When Little called again the next day and told Carroll he either wanted the draft paid or returned, Carroll said the loan had been approved and that a cashier’s check was in the mail. Little called again on May 16, and this time was told that Riverside had declined the loan. Allied repossessed Lewis’ car on May 16th or 17th and received the returned draft and documents from Riverside on May 21. When he reports to another bank about one of his loans, as he did to Riverside in this case, Little gives the due date of the first payment.

James Means, executive vice president at Riverside Bank, testified that he called Allied Bank on May 14 to determine the status of the note, then decided not to make the loan when he discovered it was delinquent and that he could not confirm Lewis’ income. He said the loan had not been “formally denied” when Carroll had Lewis sign the note on the next day.

In addition to the usual definitions of proximate cause and ordinary care, the trial court submitted the following instructions:

“You are instructed that:
A representation of present or past fact is ‘fraudulent’ if it is false, the person making the representation knows it to be false and he intends another to rely upon it. A representation of future intent is ‘fraudulent if the person making the representation has no present intent to do what he says he will do and he intends another to rely upon his representation.
“You are instructed that:
A ‘Deceptive Trade Practice’ is any false, misleading, or deceptive act or practice in any trade or commerce, including, but not limited to, the following acts:
1. causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
2. representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have;
3. advertising goods or services with intent not to sell them as advertised.
“You are instructed that:
An act is done with ‘malice’ if it involves ill will, evil motive, or reckless disregard for the rights of others. In a legal sense an unlawful act done willfully and purposely is, as against that person, malicious.”

In response to special issues the jury found from a preponderance of the evidence:

1. That Riverside National Bank or its employee, Arthur Carroll, after agreeing to refinance the automobile of Plaintiff, James Lewis, knew or should have known that “such refusal” would result in the a) repossession of plaintiff’s car, b) loss of his certificate of deposit and c) damage to his credit rating.
2. (predicated on affirmative answer to 1. a, b, or c) That such refusal was a proximate cause of any damage to James Lewis.
3. (predicated on affirmative answer to 1. a, b, or c) That such refusal was done with malice by either Riverside National Bank or Arthur Carroll.
4. That the refusal of Riverside National Bank to honor the draft of Allied Bank was a wrongful dishonor of it.
5. (predicated on affirmative answer to 4.) That such refusal was a proximate cause of some damage to James Lewis.
6. (predicated on affirmative answer to 4.) That such refusal was done with malice.
7. (predicated on affirmative answer to 1. a, b, or c or 4.) That such action constituted a fraud on James Lewis.
8. (predicated on affirmative answer to 1. a, b, c . or 4.) That such action was a violation of the “Deceptive Trade Practices Act.”
9. (predicated on affirmative answer to 8.) That a reasonable attorney fee for James Lewis was
a. for prosecution of this suit $4,700.
b. appeal to Court of Civil Appeals 1,500.
c. appeal to Texas Supreme Court 500.
10. That James Lewis gave false information on his application to Riverside National Bank.
11. (predicated on affirmative answer to 10.) The jury declined to find from a preponderance of the evidence that such false information was a material fact in Riverside Bank’s agreeing to finance the car for James Lewis.
12. (predicated on affirmative answer to 11, so not answered.) This issue asked whether Riverside Bank relied on such false information in originally agreeing to make the loan.
13. The jury declined to find from a preponderance of the evidence that Riverside Bank was justified in refusing to make a loan and refusing to honor Allied Bank’s draft.
14. The reasonable cash compensation for James Lewis would be:
a. for loss of certificate of deposit $3,177.50
b. for loss of use of car 0
c. for injury to his credit rating 100.00
15. James Lewis should be awarded $10,000 against Riverside Bank as exemplary damages. “Exemplary damages” means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages.
16.James Lewis should not be awarded any exemplary damages against Arthur Carroll.
“Exemplary damages” means an amount which you may in your discretion award as an example to others and as a penalty or by way of punishment, in addition to any amount which may have been found by you as actual damages.

The parties stipulated that any and all acts of Arthur Carroll which are the subject of this suit, whether indeed (sic) or by conversations, were made in the course and scope of his employment as a loan officer for the defendant, Riverside National Bank.

The defendants’ (appellants’) only objections to the trial court’s charge were directed to the first nine special issues and were: 1) no pleadings to support submission, 2) no evidence, 3) insufficient evidence, and 4) an affirmative answer would be against the great weight of the evidence. They submitted no proposed definitions or instructions and no issues that were refused.

Appellants’ Points of Error

Appellants’ first two points of error assert that the jury’s answer to Special Issue 11 established the defense of illegality because 18 U.S.C. § 1014 (1970) prohibits knowingly making false statements to influence the actions of a bank insured by the Federal Deposit Insurance Corporation in making a loan. Appellee argues that appellants did not plead, prove or obtain a jury finding on the illegality defense. Under Rule 94 of the Texas Rules of Civil Procedure, illegality must be affirmatively pleaded as a defense or it is waived. Mabry v. Priester, 161 Tex. 173, 338 S.W.2d 704, 706 (1960); Van Huss v. Buchanan, 508 S.W.2d 412, 414 (Tex.Civ.App.1974, writ dism.). Appellants pleaded that the information on Lewis’ application was false. This pleading was sufficient to raise the question of illegality since appellee raised no special exceptions specifically pointing out the defect or omission. Portwood v. Buckalew, 521 S.W.2d 904, 919 (Tex.Civ.App.1975, writ ref., n. r. e.); Tex.Rules Civ.Proc., Rule 90. Appellants were not required to plead and prove the federal law they were using to support their theory of illegality; a Texas court must take judicial notice of federal law. Lyon Van Lines, Inc. v. Ogden, 503 S.W.2d 632, 636 (Tex.Civ.App.1973, no writ).

The jury’s answer to Special Issue 10 is that Lewis gave false information on his loan application, but defendants did not offer issues asking whether he did so knowingly and for the purpose of influencing in any way the action of the bank, findings that would be necessary to show a violation of 18 U.S.C. § 1014. By submission of issues 11 and 12 questioning the materiality of the information and the bank’s reliance on it, the defendants apparently were submitting elements of fraud rather than of illegality. See McCall v. Trucks of Texas, Inc., 535 S.W.2d 791, 794 (Tex.Civ.App.1976, writ ref., n. r. e.). Since the judgment was adverse to the appellants, we cannot deem the omitted issues as found in their favor under Rule 279, T.R.C.P. The defense of illegality was waived.

Appellants’ third point of error is that the court erred in overruling their motion for judgment notwithstanding the verdict because the evidence proves conclusively that the bank was justified in refusing to make the loan and honor the draft, and that issue 13 (asking whether Riverside Bank was justified in refusing to lend) should not have been submitted. Appellants’ position is that the bank could not have funded the loan without helping Lewis commit a crime. We overrule this point. Absent necessary findings that Lewis gave false information to the bank knowingly and for the purpose of influencing its action, we cannot agree with appellants’ view.

Appellants argue in points four and five that they proved materiality of the false information as a matter of law or that the jury’s failure to find materiality in issue 11 was against the great weight and preponderance of the evidence. Appellants cite U. S. v. Braverman, 522 F.2d 218, 223 (7th Cir. 1975) for this definition of a material fact: “A statement concerns a material fact when it has the ‘capacity to influence’ the lending institution.” This is the proper definition for materiality under the federal criminal statute discussed above, but materiality in an action for fraud depends upon whether the contract would have been made notwithstanding the representations. Connor v. Buckley, 380 S.W.2d 722, 724 (Tex.Civ.App.1964, no writ); 25 Tex.Jur.2d 630, Fraud and Deceit § 15. No instruction or definition was submitted with the issue.

Mr. Means of Riverside Bank admitted that Lewis signed the note on May 15 after Means knew of the delinquency of the Allied note and had decided on May 14 not to make the loan. Lewis testified that when he applied for the loan he told Carroll of the delinquency, but Carroll said that with only one missed payment he thought he could help. The jury may have accepted that testimony, could have considered the amount of security for the loan and was entitled to conclude that the defendants had failed to sustain their burden of proof, on issue 11.

We agree with the appellants’ position stated in points 6 and 8 that there were no pleadings and there was no evidence to support the submission of issue 4 (asking whether the refusal of Riverside Bank to honor the draft of Allied Bank was a wrongful dishonor). The plaintiff’s petition specifically listed four causes of action against the defendants, but none of them gave the defendants fair notice of a wrongful dishonor theory of recovery.

Further, the evidentiary support was lacking. The basis for a wrongful dishonor claim is § 4.402 of the Texas Business and Commerce Code. It provides: “A pay- or bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item . . . ” § 4.104(a)(5) defines “customer as ‘any person having an account with a bank or for whom a bank has agreed to collect items and includes a bank carrying an account with another bank.’ ” This statute obligates a bank (unless it has a lawful excuse to dishonor) to honor drafts drawn on its customer’s account if the account has sufficient funds. Baytown State Bank v. Don McMillian Leasing Co., 551 S.W.2d 771 (Tex.Civ.App.1977, writ ref. n. r. e.). In our case the plaintiff, Lewis, was not a customer of Riverside Bank so Riverside Bank was not liable to him under Section 4.402 for having dishonored the draft of Allied Bank.

In points of error nine and ten, appellants assert that there is no evidence or sufficient evidence on which the jury could find, in response to issue 7, that the refusal to refinance or refusal to honor the draft constituted a fraud on Lewis. The instruction given on fraud was: “A representation of future intent is ‘fraudulent’ if the person making the representation has no present intent to do what he says he will do and he intends another to rely upon his representation.”

Lewis testified that Carroll told him the loan had been approved, so he went to the bank and signed the note on May 15. Means testified that he did not know why Carroll asked Lewis to sign the note a day after Means had decided to refuse the loan. This evidence shows that Riverside Bank had no present intent to make the loan when it represented to Lewis, through Carroll, that it would do so. This is sufficient evidence to meet the court’s instruction on fraud. Appellants did not object to the instruction or offer any additional instructions for submission. The elements of actionable fraud are 1) that a material representation was made; 2) that it was false; 3) that when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; 4) that he made it intending that it should be acted upon by the other party; 5) that the party acted in reliance upon it; and 6) that he suffered thereby. Custom Leasing, Inc. v. Texas Bank and Trust Co. of Dallas, 516 S.W.2d 138 (Tex.1974). These elements were established in our case by undisputed evidence or by jury findings. In any event, the submission of a corrected definition was waived by failure to object to the one given and the submission of additional definitions or instructions was waived by failure to request them in substantially correct form. Rules 274 and 279, T.R.C.P.

In points 11 and 12, appellants argue that the record contains no evidence or insufficient evidence to support the findings (in issue 14) that Lewis incurred actual damages of $3,177.50 for the loss of his C. D. and $100 for injury to his credit rating. Plaintiff’s exhibit 8 is the check Lewis received from Allied Bank for the remainder of his $6,000 C. D. The check of $2,812.50 represents $6,000 minus the $3,187.50 deficiency remaining on the note after applying the proceeds from the car sale. Omitting loss of interest by Lewis, the jury’s answer 14a should have been $3,187.50 instead of $3,177.50. This $10 error in arithmetic should be corrected in the judgment. The $100 awarded Lewis for injury to his credit rating is supported by Lewis’ testimony that repossession of a car damages one’s credit rating. We do not agree with the appellants’ position that the plaintiff was shown to have not been damaged by the fact that he was unable to save his car by refinancing it during the 17-day period between its repossession and its sale. The jury was also entitled to consider that the car had by then been repossessed and its owner’s credit rating thus damaged. The defendants did not object to the absence of an instruction or issue concerning whether special or consequential damages, such as loss of credit rating and loss of part of the funds in the C. D., were within the contemplation of the parties when the agreement was made, so they waived submission of them. Rules 274 and 279.

Appellants’ points 13 and 14 attack the award of $10,000 in exemplary damages as unsupported by legally and factually sufficient evidence. Appellants argue that to obtain exemplary damages a plaintiff must show that the (1) wrongful dishonor (2) intentional fraud or (3) breach of contract coincident with fraud was done maliciously. Points of error 18 through 23 also contest the sufficiency of the evidence and pleadings to support the submission of issues 3 and 6 and the jury findings of malice in response to those issues.

Although there is little dispute in the testimony, different inferences may be drawn from it. Mr. Carroll did not testify, so what he said and did in the plaintiff’s presence are reported only by the plaintiff. It is clear that Carroll assured the plaintiff that the loan had been granted, had him sign the note, and told Allied Bank the funds had been forwarded even though his superior, Mr. Means, had already decided to deny the loan. It has not been shown, however, that anyone at Riverside Bank consciously misled Lewis, had anything to gain by misleading him, had any desire to harm him, or had any evil intent or bad faith, but what appears to have been a lack of communications between Carroll and Means resulted in the plaintiff’s being unable to avoid a monetary loss.

After carefully reviewing the entire record we cannot say the evidence supports the jury findings of malice or its award of exemplary damages. Even though the decisions use the word “reckless” in support of an award for exemplary damages, the measure of the conduct to support such an award must involve acts of an unconscionable nature, such as malice, fraud, oppression, bad faith, knowledge of the falsity, intention to defraud, conscious indifference or wanton disregard of the rights of others. International Harvester Co. v. Kesey, 487 S.W.2d 799 (Tex.Civ.App.1972, reversed on other grounds, 507 S.W.2d 195). See also A. L. Carter Lumber Co. v. Saide, 140 Tex. 523, 168 S.W.2d 629 (1943). We will not treat this matter further in view of our subsequent holdings that 1) Lewis is entitled to recover under the Deceptive Trade Practices Act, and 2) he is not entitled to recover both punitive and treble damages.

Appellee’s Cross-Points of Error

Appellee’s cross-points attack the trial court’s granting of appellants’ motion to set aside jury finding 8, that the refusal of the loan after agreeing to it was a violation of the Texas Deceptive Trade Practices Act (DTPA). Defendants’ motion alleged that there was no evidence to support the issue. The basic question before us is whether the DTPA applies to a bank’s agreement to extend credit. Apparently this is a case of first impression in Texas. The pertinent provisions of the Act during May and June of 1975 were:

§ 17.50
(a) A consumer may maintain an action if he has been adversely affected by any of the following:
(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this sub-chapter;
§ 17.46
(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(b) The term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts:
* * * * * *
(2) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
* * * * sft *
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have
* * * * * *
(9) advertising goods or services with intent not to sell them as advertised; § 17.45
As used in this subchapter:
(1) “Goods” means tangible chattels bought for use.
(2) “Services” means work, labor, and services for other than commercial or business use, including services furnished in connection with the sale or repair of goods.
* * * * * *
(4) “Consumer” means an individual who seeks or acquires by purchase or lease, any goods or services.
sfc * # ⅜ £ ⅜
(6) “Trade” and “commerce” mean the advertising, offering for sale, sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state.
§ 17.44
This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.

Under the provisions of the Act and under the facts and instructions in this case, Lewis was a consumer if he sought to purchase services for other than commercial or business use; a consumer may maintain an action if he has been adversely affected by the use or employment of any false, misleading or deceptive act or practice in the conduct of any trade or commerce. The jury was charged as to three specific deceptive trade practices from the § 17.46 “laundry list,” but we hold that the evidence does not show that any of them apply to this case. § 17.46(b) clearly provides, however, that the term “false, misleading or deceptive acts or practices” includes, but is not limited to the listed acts.

In the recent case of Woods v. Littleton, 554 S.W.2d 662 (Tex.1977), this definition of “services” was cited with approval: “action or use that furthers some end or purpose: conduct or performance that assists or benefits someone or something: deeds useful or instrumental toward some object.”

We consider that by seeking to obtain the extension of credit from a bank, Lewis was seeking to purchase services and was, under the provisions of § 17.45, a consumer.

In our case the jury found (issue 1) that Riverside Bank or Carroll, after agreeing to refinance the Lewis car, knew or should have known that “such” refusal would result in a) repossession of it, b) loss of his C. D., and c) damage to his credit rating. The jury also found, under issue 8, that “such action” was a violation of the Deceptive Trade Practices Act.

We hold that these two findings plus the finding to issue 7 (that such action constituted a fraud on Lewis) were supported by the evidence in this case and that they support a judgment under § 17.46 that he has been adversely affected by a false, misleading, or deceptive act. Since the act in question was not one specifically listed as a deceptive trade practice under § 17.46(b), the issues in our case properly inquired whether 1) the act or practice occurred and 2) it was a deceptive trade practice. Spradling v. Williams, 566 S.W.2d 561 (Tex.1978).

§ 17.48 of the DTPA states that the remedies provided in that subchapter are in addition to any other procedures or remedies provided for in any other law. We hold that a plaintiff should not, however, recover both exemplary damages and the treble damages provided in the DTPA, based on the same act, as that would amount, at least in part, to a double recovery of exemplary damages. “Treble damages effectuate one of two possible purposes. First, mandatory treble damages served as inducements for the consumer to sue where smaller damages are involved. Second, they serve as exemplary damages to punish the wrongdoer for his misconduct.” Comment, 30 Baylor Law Review 65, 73 (1978).

The plaintiff has elected, in the event election of remedies is required, to recover treble actual damages plus attorneys’ fees and costs.

The judgment of the trial court is reformed to provide that the plaintiff’s recovery from the defendants, jointly and severally, shall consist of his trebled actual damages in the amount of $9,862.50 plus attorneys’ fees of $6,700 and costs of court. Provided, however, that in the event this cause is not appealed to the Texas Supreme Court, the award of attorneys’ fees will be reduced by a $500 remittitur. As thus reformed, the judgment of the trial court is affirmed.

      . The causes of action alleged were: 1) breach of a binding written contract (the promissory note), 2) violations of the Deceptive Trade Practices and Consumer Protection Act, 3) intentional refusal to complete the contract while holding the plaintiffs executed note amounts to conversion, and 4) intentional refusal to complete the contract amounts to fraud.


text:
    Rebecca Ann Tate BUCKLER, Appellant, v. Kenneth Wayne TATE, Appellee.
    No. 17176.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    Aug. 31, 1978.

      Edward J. Ganem, Victoria, for appellant.
    Fly & Moeller, Wm. F. Moeller, Victoria, D. Graham Moore, Houston, for appellee.
   PEDEN, Justice.

Rebecca Tate Buckler appeals from the granting of Kenneth Wayne Tate’s motion for summary judgment. Appellant had brought an equitable bill of review to set aside the child custody provision in a divorce degree. Her principal contention is that the trial court erred in granting summary judgment because issues of material fact were raised. We reverse and remand.

Kenneth Tate sued Rebecca Tate for divorce in August, 1976. When appellant was finally served with citation January 13, 1977, she did not respond. In the default judgment of divorce signed on February 10, 1977, Tate was appointed managing conservator of their child. No record was made by a court reporter.

Appellant’s petition for bill of review, filed on July 15, 1977, alleged that the child custody provisions of the divorce decree should be set aside because her failure to appear at the trial was in reliance on her husband’s continual misrepresentations “that no judgment would be taken until such time as she was advised of that fact," but that he took a default judgment without advising her and that she was not notified by anyone of the granting of the divorce.

Appellee's motion for summary judgment was based on the affidavits and depositions of the parties. In his motion he alleged that the summary judgment proof established that he did not communicate with the appellant from the date she was served with citation until after the entry of the default judgment.

The appellant asserts in her first point of error that the pleadings, depositions and affidavits raised material issues of fact and thus should have precluded a summary judgment. The test on appeal of a summary judgment is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action and that the moving party is entitled to a judgment as a matter of law. Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The elements that appellant must allege and prove in her action for bill of review are: “(1) a meritorious defense to the cause of action alleged to support the .judgment, (2) which [she] was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of her own.” Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 243 (Tex.1974); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950).

Appellant pleaded a meritorious defense to the award of child custody in the original proceeding. She alleged that she is the better qualified parent because their child is very young and needs to be with his mother and because appellee is working every day and is leaving the child with babysitters a great portion of the time. Appellant is seeking a review of only the custody determination and not the divorce itself. This part of the divorce decree may be reviewed without contesting the finding on the dissolution of the marriage. McFarland v. Reynolds, 513 S.W.2d 620, 625 (Tex.Civ.App.1974, no writ).

The second element of bill of review allegations and proof is that the complainant was prevented from defending by the fraud, accident or wrongful act of the other party. Appellant complains in her supplemental brief of her failure to receive notice of the default judgment as is required by Rule 239a, Texas Rules of Civil Procedure. In Hanks v. Rosser, 378 S.W.2d 31 (Tex.1964), the Texas Supreme Court relaxed the second of the elements quoted above from Alexander v. Hagedorn by holding that if a litigant is misled or prevented from filing a motion for new trial by misinformation of an officer of the court acting in his official capacity, the litigant may maintain a bill of review. The complainant must also show (1) that defendant’s failure to file an answer was not intentional or the result of conscious indifference, (2) that defendant had a meritorious defense and, (3) that no injury would result to the opposite party.

In Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex.1974), the Hanks v. Rosser exception was applied in a case in which a defendant failed to file a motion for new trial because the clerk did not send notice of the signing of a judgment under Rule 306d, T.R.C.P., stating:

“The loss of the right to appeal or move for a new trial without fault of the complaining party, through the neglect or act of the reporter, clerk or the judge himself, may under proper circumstances constitute such accident or unavoidable casualty as to warrant relief to prevent injustice. 3 Freeman, Law of Judgments, 5th ed. 1925, § 1247, p. 2601. We hold that where the other conditions discussed below are met, a bill of review may be predicated on the clerk’s failure to send the notice required by Rule 306d. See Kelly Moore Paint Co. v. Northeast National Bank, Tex.Civ.App., 426 S.W.2d 591 (no writ).”

The Kelly Moore Paint case, cited by the Supreme Court, held that a clerk’s failure to send notice of a default judgment under Rule 239a constitutes “such failure of notice as a ground for equitable bill of review even though it was not prevented from answering from fraud, accident or wrongful act of the opposite party.” There are no significant differences between Rule 306d and Rule 239a, and since failure to comply with Rule 306d relieves the plaintiff in a bill of review from proving fraud, accident or mistake, then so should failure to comply with Rule 239a. Bohn v. Bohn, 498 S.W.2d 267, 270 (Tex.Civ.App.1973, writ dism.).

It is because of alleged lack of compliance with Rule 239a and lack of other notice to the appellant of the default judgment that we have concluded that Tate has not established his right to prevail on the second element of the appellant’s bill of review.

In our case the appellant pleaded that her first notice of the default judgment was in July when her attorney telephoned the Harris County District Clerk. She testified by deposition that this phone call was placed the last week in June. Absent notice from the clerk pursuant to Rule 239a, the mistake or accident requirement of Alexander v. Hagedorn is shown. Petro-Chemical Inc. v. Carroll, 514 S.W.2d 240, 245 (Tex.1974).

The remaining elements mentioned in the Petro-Chemical case are that her failure to file an answer was not intentional or the result of conscious indifference, that she has a meritorious defense and that no injury would result to. the opposite party. The appellant’s meritorious defense contention has already been discussed. The summary judgment proof does not establish that her failure to answer was intentional or the result of conscious indifference. Appellant stated in her affidavit that she thought that if she did not sign the citation papers, a divorce could not be granted. A letter in evidence from Tate said that they could get a divorce when they signed the papers. This appears to be sufficient to support her failure to answer. Texas Iron & Metal Co., Inc. v. Utility Supply Co., 493 S.W.2d 545 (Tex.Civ.App.1973, writ ref., n. r. e.).

The final element is that no injury would result to appellee by the granting of the bill of review. Appellee still resides in the Harris County area and could have attended court without substantial inconvenience. Hanks v. Rosser, 378 S.W.2d 81, 36 (Tex.1964). Appellant secured an attorney in late June or early in July of 1977, and upon learning of the judgment, filed her petition for bill of review on July 15. The movant for summary judgment did not show that he was entitled to judgment as to this element of the plaintiff’s cause of action as a matter of law.

We do not reach the appellant’s other points of error. Reversed and remanded.


author: DICKENSON, Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. James W. ARMSTRONG, Appellee.
    No. 5207.
    Court of Civil Appeals of Texas, Eastland.
    Sept. 28, 1978.
    Lancaster Smith and Harvey L. Davis, Dallas, for appellant.
    John B. Wilson, Jr., Wilson, Menaker & Branson, Dallas, for appellee.
   DICKENSON, Justice.

Plaintiff, James W. Armstrong, sued Texas Employers’ Insurance Association for benefits under the Worker’s Compensation Law. The jury returned a verdict for Armstrong, and the trial court entered a judgment for Armstrong for total and permanent disability benefits plus past medical expenses. The Association appealed. We affirm the judgment of the trial court.

The statement of facts shows that the extent and duration of Armstrong’s disability was hotly disputed. The jury resolved that issue against the Association, and there is sufficient evidence to support the verdict. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The relevant facts may be stated as follows: Armstrong worked for Neuhoff Brothers Packing Company from June 11, 1952, until May 9, 1976; he received an accidental injury on November 12, 1973, while in the course and scope of his employment for Neuhoff Brothers; the Association paid him weekly compensation benefits for the three weeks that he was off work; he returned to work on December 3, 1973, and worked on a regular basis until May 11, 1976; he was on a medical leave of absence from that time until the trial of this case in October and November of 1977; and several medical doctors testified as to a ruptured or herniated disc in his lower back.

The Association contends that the trial court erred in denying its motion for directed verdict and in rendering judgment for Armstrong on the jury’s findings of total and permanent incapacity since November 12, 1973. The Association insists that as a matter of law Armstrong could not be permanently and totally disabled from that date until May 11, 1976, because he was working at the same job and making more money. We disagree. The fact that an injured worker has continued to work and earn money is not conclusive on the issue of his capacity to work. Such proof is part of the factual evidence which the jury may consider in answering the issues on incapacity or disability, but this evidence does not preclude an award for total and permanent disability. Texas State Highway Department v. Kinsler, 230 S.W.2d 364 (Tex.Civ.App.—Beaumont 1950, writ ref’d).

The Association also contends that the jury’s findings are so against the clear weight of the evidence as to be manifestly and clearly wrong. We disagree. We have reviewed the entire record, and we hold that the findings are not against the great weight and preponderance of the evidence. In re King’s Estate, supra.

The Association contends that since Armstrong was paid his full wages for the time that he worked after November 12, 1973, until May 11, 1976, he was fully compensated for this period of time. The Association contends that no worker’s compensation benefits are owed for this period of time. No authorities are cited in support of these contentions, and we know of none. We hold that the trial court did not err in awarding compensation benefits for this period of time and that those benefits are not reduced by the wages which Armstrong earned. Tex.Rev.Civ.Stat.Ann. art. 8306, § 10.

The other points of error not specifically discussed have been considered, and they are overruled. Rule 434, T.R.C.P. Armstrong filed a cross-point under Rules 435 and 438, T.R.C.P., asking the appellate court to assess damages against the Association for perfection of a “frivolous” appeal. The cross-point is overruled. We do not exercise our discretion to assess damages under Rule 435, T.R.C.P. We do not find that the appeal was taken for delay and without sufficient cause. Rule 438, T.R. C.P.

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. Phillip Wayne LANDRUM et ux., et al., Appellees.
    No. 12755.
    Court of Civil Appeals of Texas, Austin.
    Oct. 4, 1978.
    Rehearing Denied Nov. 1, 1978.
    James N. Higdon, Wiley, Plunkett, Gibson & Allen, San Antonio,, for appellant.
    James Y. Bryce, Austin, for appellees.
   ON MOTION FOR REHEARING

SHANNON, Justice.

The opinion of this Court filed on July 5, 1978, is withdrawn, and the following opinion replaces it.

Appellees, Phillip W. Landrum and wife and the American National Bank of Austin, Texas, recovered judgment against appellant Travelers Indemnity Company for $27,-000 for the loss of a house. The question is whether the house was insured at the time of its destruction by fire.

The American National Bank financed the construction of a house for Landrum. On January 2, 1973, Landrum purchased fire coverage on the construction project for a six-month term from Travelers through Atkinson Brothers Insurance Agency. Landrum was the named insured and the bank was the loss payee. On July 2, 1973, Landrum through Atkinson renewed the coverage for another six-month term ending January 2, 1974. The insurance agreement was not reduced to writing until after the fire.

Because Landrum defaulted on the note, the bank in November, 1973, foreclosed the lien and conveyed to itself the house and lot. Neither Landrum nor the bank gave notice of foreclosure and change of ownership of the property to Atkinson or Travelers.

The foreclosure resulted in a substantial deficiency owed by Landrum to the bank. A bank official told Landrum that upon completion of the house the bank would reconvey the property to him upon the condition that he was properly financed and that, in the meantime, no one else had purchased the property.

After obtaining deed to the property the bank contracted with another builder to complete construction of the house. The house burned before completion of construction on January 4, 1974. Appellees made demand upon Travelers, but it refused to pay the loss.

Appellees sued Atkinson alleging that he breached his duty to appellees to renew the insurance policy. For cause of action against Travelers, appellees pleaded that the insurance company negligently failed to prepare and timely deliver the insurance policy to Atkinson and to them. Appellees alleged further that Travelers’ failure to deliver the policy was a cause of Atkinson’s failure to renew the policy. Although ap-pellees did not plead an oral agreement to keep fire coverage in effect during construction, that issue was tried by consent. Tex.R.Civ.P. 67.

After trial to the court, judgment was entered for appellees against Travelers for $27,000. The judgment provided that ap-pellees take nothing from Atkinson.

Upon request the district court filed findings of fact and conclusions of law. The important findings are that Atkinson was a licensed recording agent for Travelers and that he was authorized by Travelers to make oral agreements to bind Travelers to temporary insurance agreements pending the issuance of formal insurance contracts. Prior to the January 2,1974 expiration date of the policy “. . . covering the Land-rums’ property, and prior to the fire loss on January 4,1974, Johnny Atkinson, Jr., made an oral agreement to keep fire insurance coverage in effect on said property during construction, and construction had not been completed when the loss occurred.” The court found as a fact that the company’s failure to issue the policy promptly and Atkinson’s failure to renew the policy were negligence. That finding, however, did not serve as basis for entry of judgment.

The district court concluded that the Landrums had an insurable interest in the property even after foreclosure. Travelers became liable to appellees as a result of the agreement made by Travelers’ agent, Atkinson. As Atkinson’s agreement to bind Travelers was effective, Atkinson satisfied his obligation to the Landrums and was not liable to them.

Travelers attacks the judgment by several points of error. Our view is that point five is dispositive. Point of error five claims that the district court erred in entering judgment for appellees because, as a matter of law, there was no insurance in effect on the property on January 4, 1974. Appellees filed no cross-point complaining of error in the court’s denial of their claim against Atkinson.

On July 2, 1973, Atkinson, at Landrum’s request, renewed coverage on the property to January 2, 1974. In that connection Atkinson wrote to Travelers, “Please issue extension of captioned policy for six months from expiration date . . . ” (Emphasis supplied). That coverage terminated on January 2,1974, unless there was proof that Atkinson agreed in some manner to continue the coverage.

Landrum did not testify concerning an oral agreement with Atkinson to extend coverage after January 2, 1974. Only Atkinson testified to any such transaction. Atkinson testified that it was his intention that Landrum have coverage “. . .as long as Mr. Landrum was building the property until completion . . .

Atkinson testified further, “It was my intent to place and retain the Travelers Indemnity Company on the risk of insuring against physical loss coverages on that house under construction while Mr. Land-rum was the owner and of [sic] at least co-constructor until completion of the house

On cross-examination Atkinson admitted that he intended only to protect Landrum as holder of legal title to the property. Atkinson did not intend to protect Landrum in any other capacity.

Atkinson intended to insure the property against physical loss so long as the property was under construction even though construction continued past January 2, 1974. Nevertheless, all the evidence is that continued coverage was conditioned upon Landrum’s holding title to the property. For many weeks prior to the fire Land-rum held no title to the property. Travelers did not contract to insure any titleholder except Landrum. Without doubt an insurer has the right to determine whom it will insure and what interest it will insure. Maryland Casualty Co. v. Palestine Fashions, Inc., 402 S.W.2d 883 (Tex.1966).

The judgment is reversed and judgment is here rendered that appellees take nothing.

      . Appellees did not plead or introduce evidence to support a recovery based upon State Board of Insurance regulations or policy provisions providing automatic renewals of coverage. See Trinity Universal Ins. Co. v. Burnette, 560 S.W.2d 440 (Tex.Civ.App.1977, no writ).