author: CLINTON, Judge. W. C. DAVIS, Judge,

text:
    Rosa BALTIERRA, Appellant, v. The STATE of Texas, Appellee.
    No. 54487.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1979.

      David Escobar, Raymond C. Caballero (on appeal only on the State’s motion for rehearing en banc), El Paso, for appellant.
    George N. Rodriguez, Jr., County Atty. and Todd D. Chenoweth, Asst. County Atty., El Paso, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

The Court granted the State's motion for leave to file a motion for rehearing in this cause in order to consider a matter of first impression that was accorded constitutional dimension by the panel opinion. After the motion for rehearing was filed the Clerk of this Court received a “Supplemental Transcript” duly approved by counsel for the parties and judge of the court below and properly certified by its clerk. The supplemental transcript contains materials in addition to the original record that so alter the posture of the case and change the context in which issues were presented to the panel that we are impelled to withdraw the original opinion and substitute for it this one.

Appellant was convicted in a trial before the court, after waiving a jury, of the offense of theft of property having a value of over five ($5) dollars and less than twenty ($20) dollars. The court assessed punishment at sixty days confinement in the county jail; however, appellant was placed on unsupervised probation for a period of 180 days.

In her first two grounds of error appellant challenges admissibility of a confession which she signed in the basement of a security office of the store in which she was alleged to have committed the theft; her third ground of error contends the evidence is insufficient to sustain the verdict as to value of the property alleged in the information. We do not reach these grounds of error because we perceive unassigned fundamental error that dictates our disposition of the cause.

The record reflects that appellant is a Mexican national who had recently moved to Juarez from a ranch near Chihuahua, both within the Republic of Mexico. Interrogation of appellant at the time she was arrested by the security officer was conducted in Spanish. The security officer testified that he obtained assistance of a Spanish speaking employee to converse with appellant and interpret a confession into Spanish so that appellant could read and understand it. Thereafter, the arresting police officer spoke to appellant only in Spanish.

• The offense is alleged to have occurred October 9, 1976 in El Paso, El Paso County. Immediately after her arrest appellant was confined to the El Paso County Jail. Complaint and information were filed October 13, 1976 and on October 14, 1976 appellant was arraigned in County Court at Law No. 2, on which occasion the record reflects, in pertinent part the following:

“THE COURT:
The Court will call the case of the State of Texas v. Rosa Baltierra for arraignment, who is now in custody in the County Jail, and not out on bond. Rosa Baltierra, how do you plead, guilty or not guilty, and do you understand the charges against you, which is theft over $5.00 and under $200.00?
THE DEFENDANT:
No response.
COURT INTERPRETER:
Your honor, the defendant, Rosa Balti-erra, is from Mexico and does not understand or speak the English language. THE COURT:
Very well, the Court Interpreter will translate for the Defendant. How do you plead, guilty or not guilty to the charge of theft. .
DEFENDANT THROUGH COURT INTERPRETER:
I understand the charges against me and plead not guilty.”

Upon inquiry the court ascertained that appellant was not represented by an attorney and did not have funds to employ one and then stated:

“Very well, the bailiff, who understands Spanish, will help the Defendant fill out an application for appointment of counsel.”

The application completed, the court reviewed it and designated counsel to be appointed for appellant, stating:

“Mr. Escobar is fluent in the Spanish language and I appoint Spanish-speaking attorneys for defendants from Mexico who do not understand English, and I am appointing David Escobar inasmuch as you do not understand or speak the English language and only understand and speak the Spanish language. * * * ”

October 20, 1976 the case came on to be heard first on a motion to suppress the alleged confession of appellant and, subject to ruling on that motion, for trial on the merits. The State properly assumed the burden on the motion and called as its only witness Security Officer Robert L. Anthony who, as already indicated, required assistance from a Spanish speaking employee to converse with appellant.

Examination, cross-examination and redirect examination, during the course of which there were offered and introduced two exhibits, then consumed 20 pages of the record. The motion to suppress was denied.

On the merits the State offered two witnesses, the same security officer that testified on the motion and the manager of the department from which the merchandise was allegedly stolen. During the course of their examination State’s Exhibits 3 through 9, being the items of merchandise, were identified and admitted; the State’s case in chief consumed some 33 pages of the record. The defense called for brief testimony the arresting police officer, primarily to show willingness of appellant to pay for the merchandise and money in her possession to do so, and the custodian of records of the El Paso County Jail to show the amount of money in her property account that was sufficient to pay for the merchandise. Then the defense called appellant herself who, according to the record, testified through an interpreter. During the course of her testimony, when asked if the security officer yelled at her, she answered that he only got mad “because I could not understand English.”

Under these circumstances we are presented with the question of whether the appellant was denied the right to confront witnesses against her under provisions of the Sixth Amendment to the Constitution of the United States and Article I, Section 10 of the Bill of Rights in the Constitution of Texas. Because this question is one of constitutional dimension and would open this conviction to attack by a post-conviction writ of habeas corpus, we review it in the interest of justice. Article 40.09, Section 13, Y.A.C.C.P.

It is basic that the right of confrontation includes, as “an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal,” the right to cross-examine those witnesses. Also, within the scope of the right of confrontation is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), absent a waiver of that right through defendant’s own conduct as in, e. g., Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). In a real sense, as well as the right to be physically present, one must also be mentally present to confront and be confronted by and cross-examine witnesses, for a defendant is not to be tried unless possessed of “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.” Article 46.02, Section 1(a)(1) and (2), V.A.C.C.P.; Jackson v. State, 548 S.W.2d 685, 691 (Tex.Cr.App.1977); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Physical presence and competency, essential requisites of confrontation, are personal to the accused and without affirmative action or assent by the accused those imperatives may not be disregarded or ignored by the courts. But even presence and competency do not suffice to provide confrontation where the accused does not understand the language of the forum. Over the years this Court has altered earlier views and in Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948) reviewed authorities from other jurisdictions and discerned, 210 S.W.2d at 579, “the generally accepted rule governing the question here presented is that the right of an accused who does not speak or understand the English language to have an interpreter appointed to interpret to him the testimony of the English-speaking witnesses rests largely in the discretion of the trial court,” and found, 210 S.W .2d at 580:

“ . . . We know that in this State, especially along the Rio Grande border, our citizenship is comprised of Latin Americans who speak and understand only the Spanish language. These citizens, as well as nationals of the Republic of Mexico (which [is] the status of appellant), when brought before the courts of this State charged with crimes against the laws of this State, are entitled to be tried according to the Constitution and laws of this State. This, of necessity, means they are entitled to be confronted by the witnesses under the same conditions as applied to all others. Equal justice so requires. The constitutional right of confrontation means something more than merely bringing the accused and the witness face to face; it embodies and carries with the valuable right of cross-examination of the witness.
Unless appellant was in some manner, either through his counsel or an interpreter, afforded knowledge of the testimony of the witness, the right of cross-examination could not be exercised by him.”

Pointing out that Garcia had timely requested appointment of an interpreter the court concluded that “in denying to appellant an interpreter, the trial court abused his discretion and appellant was thereby denied a right granted by the Constitution.”

Close on the heels of Garcia came Field v. State, 155 Tex.Cr.R. 137, 232 S.W.2d 717 (1950) and Williams v. State, 155 Tex.Cr.R. 594, 238 S.W.2d 534 (1951), the former a deaf-mute and the latter totally deaf. The claim of each that right of confrontation had been denied because testimony was not communicated through an interpreter or otherwise was rejected for different reasons. Both decisions, however, were effectively overturned by the 1961 legislative mandate of what is now Article 38.31, Y.A. C.C.P., that trial proceedings be interpreted to an accused who is deaf or a deaf-mute.

Thereafter, perhaps responsive to a renaissance of judicial caution in finding waiver of a constitutional right or guarantee, this Court examined assertions of denial of right of confrontation, when an interpreter was not utilized to translate proceedings and testimony in English to a language understood by accused, somewhat differently. It looked to see not only whether a request had been made but also, even if one had been, to an actual showing that accused did not speak and understand the English language. Salas v. State, 385 S.W.2d 859 (Tex.Cr.App.1965) held that the record did not reveal error where a request for an interpreter had not been made and there was no testimony that appellant was unable to understand English or whether his counsel could interpret for him. In Ex Parte Marez, 464 S.W.2d 866 (Tex.Cr.App.1971) this Court recognized that providing an interpreter to an accused is based on the constitutional and statutory guarantees of confrontation under the Constitution of Texas and of the United States, citing Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), but was unable to find that petitioner could not and did not understand the English language during his trial since his own testimony was in clear, concise and intelligible English. To the same effect is Diaz v. State, 491 S.W.2d 166, 168 (Tex.Cr.App.1973). Thus, although denying relief in each instance, both Marez and Diaz constitute current authority for the proposition that constitutional and statutory guarantees of confrontation include, in a proper case, that the trial proceedings and testimony be interpreted to the accused in a language he can understand by a qualified interpreter. Subsequently in Flores v. State, 509 S.W.2d 580 (Tex.Cr.App.1974) the court reiterated the constitutional basis of providing an interpreter to an accused but upheld refusal to appoint one for an accused who understood and spoke English but was more fluent in Spanish, concluding that the latter characteristic “does not, in and of itself, make it incumbent upon a trial court to appoint an interpreter for an accused who speaks and understands the English language.”

All of which brings us up to Ex Parte Nanes, supra, footnote 4. In that post-conviction habeas corpus proceeding Nanes contended he was denied his constitutional rights to confrontation of the witnesses at his original trial because he was not afforded an interpreter throughout the proceedings. The State stipulated with appellant that he did not understand the English language during the case in which he was convicted. It was also shown that an interpreter, present at some phases, was absent during other segments of the trial and was only asked to interpret while appellant was on the stand and when he asked to change his plea. Holding that the record supported his contention, habeas corpus relief was granted and relator was ordered released to the affected sheriff to answer the original indictment. The Court seemed impressed with the undisputed fact that Nanes did not understand the English language and deemed it significant that the interpreter, though available, served only when asked to do so.

Here, a nineteen year old Mexican national from the interior who has been employed in Juarez for one month as a housemaid earning $20.00 per week and who had never before been convicted of a felony or a misdemeanor was taken before the court after some four days confinement for arraignment and, being unable to understand, made no verbal response when asked for her plea. Immediately the “court interpreter” informed the court of her inability to understand or speak the English language and all proceedings thereafter during the arraignment were translated for her by the court interpreter. Thereafter at pre-trial and trial, while we do not know of the immediate availability of the court interpreter as other witnesses testified in the English language, he appeared without any noticeable break in the proceedings to translate the testimony of appellant when she took the stand. Thus the same matters that impressed the Court in Ex Parte Nanes, supra, are present here.

We do not impair the doctrine of Garcia and its progeny by holding that in the circumstances of this case appellant did not waive her “right” to have the proceedings translated by failing to request that the court interpreter do so. Similarly situated as she is to Negron, supra, 434 F.2d at 390:

“Nor are we inclined to require that an indigent, poorly educated Puerto Rican thrown into a criminal trial as his initiation to our trial system, come to that trial with a comprehension that the nature of our adversarial processes is such that he is in peril of forfeiting even the rudiments of a fair proceeding unless he insists upon them. Simply to recall the classic definition of waiver — ‘an intentional relinquishment or abandonment of a known right,’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) — is a sufficient answer to the government’s suggestion that Negron waived any fundamental right by his passive acquiescence in the grinding of the judicial machinery and his failure to affirmatively assert the right. For all that appears, Negron, who was clearly unaccustomed to asserting ‘personal rights’ against the authority of the judicial arm of the state, may well not have had the slightest notion that he had any ‘rights’ or any ‘privilege’ to assert them.”

Accordingly we hold that when it is made known to the trial court that an accused does not speak and understand the English language an interpreter must be furnished to translate to the accused the trial proceedings, including particularly testimony of the witnesses presented by the State. In the absence of the opportunity to be aware of the proceedings and the testimony of the witnesses against her, appellant was denied the constitutional right of confrontation and, that right not being knowingly and intelligently waived, her trial and conviction are null and void.

The judgment of the trial court is reversed and remanded.

ON STATE’S MOTION FOR REHEARING

W. C. DAVIS, Judge,

dissenting.

I dissent from the majority’s holding reversing this cause due to the failure of the trial court to sua sponte furnish appellant with an interpreter.

The majority’s holding is grounded in the confrontation clauses of both the Federal and State Constitutions. To assure confrontation of witnesses and to provide sufficient opportunity to cross examine those witnesses, under the majority decision, a trial court, once aware that an accused cannot understand English, must furnish an interpreter to translate to the accused the trial proceedings, including the testimony of witnesses presented by the State.

Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948) is the foundation case upon which the majority builds. Garcia holds that the furnishing of an interpreter is preconditioned on two facts: (1) a showing that the accused could not speak or understand the English language, and (2) a timely request by accused for an interpreter. Once these prerequisites are established, the furnishing of an interpreter is a discretionary function and in exercising this discretion, the trial court may look to see if the accused’s right to confrontation is protected by another device. Garcia, supra.

The Garcia holding has been followed by this Court on several occasions. In Field v. State, 155 Tex.Cr.R. 137, 232 S.W.2d 717 (App.1950), failure to request an interpreter was held to be a waiver. In Salas v. State, 385 S.W.2d 859 (Tex.Cr.App.1965), there was no showing that the defendant was unable to understand English and, therefore, no abuse of discretion in failing to furnish an attorney. In Flores v. State, 509 S.W.2d 580 (Tex.Cr.App.1974), there was no showing that defendant could not understand or speak English.

The record before us indicates that appellant could not speak nor understand English. However, there was no request by appellant’s counsel for an interpreter. Further, the trial court appointed appellant an attorney who was fluent in Spanish and English. Therefore, under Garcia, there was no abuse of discretion.

For these reasons, I respectfully dissent.

DOUGLAS, J., joins.

      . Either an inadvertent remark by the court or hearing by the court reporter for both the complaint and information and other papers in the cause clearly show the maximum value to be $20.00 — a class B misdemeanor.

      . Security Officer Anthony testified, after stopping appellant and asserting she had some merchandise she had not paid for:
      “Q: At what point did you ascertain that she did not speak English?
      A: Well, when she started, she just gave me the merchandise, you know, she said ‘no tiene English’.
      ******
      Q: How did you know she wanted to pay for the merchandise?
      A: She asked me if she could pay for it.
      Q: In English?
      A: In Spanish.
      Q: Do you understand much Spanish?
      A: A little bit.”

      .State’s Exhibit 1 is an “Incident Report” that amounts to a confession of guilt — it is in Spanish and was apparently prepared by a Spanish speaking secretary. State’s Exhibit 2 is the same Incident Report translated into English.

      . See Ex Parte Nanes, 558 S.W.2d 893 (Tex.Cr.App.1977); see also Negron v. New York, 434 F.2d 386 (2nd Cir.1970).

      . Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965).

      . In Bell v. State, 32 Tex.Cr.R. 436, 24 S.W. 418 (Tex.Cr.App.1893), after defendant was escorted by the sheriff from the courtroom to the jail, the prosecution was permitted to examine a witness and not until cross-examination began by counsel for the defendant was the absence of the accused discovered; thereupon, the court suspended further proceedings, withdrew the testimony of the witness from consideration of the jury and adjourned the court, but what this Court characterized as “more than one important fact” was given by the witness and he was not recalled during further progress of the trial. Holding the procedure fatal to the conviction, the court pointed to the right of confrontation, the statutory requirement that defendant be personally present at felony trial, and then observed and concluded:
      “Every right guarantied him under the provisions of law cited above should be strictly observed, for these rights are the safeguards of the citizen, and beyond the power of the courts to disregard or ignore. The power to disregard one implies the power to ignore all. He cannot be deprived of these rights without his consent, had in a proper way, and the courts should see to it that these provisions of law are not violated during trials had before them. * * * There is but one safe guide in such matters, and that is a strict obedience to and conformity with the statutes and constitution. It is not always requisite to inquire whether harm has been done, or injury inflicted, by a violation of the provisions of law in this regard. The mere fact the peremptory demands of the constitution and statutes have been violated is sufficient injury. The withdrawal of the evidence did not reach the error occurring in this case.”
      Cf. Cason v. State, 52 Tex.Cr.R. 220, 106 S.W. 337, 339-340 (1907); Hill v. State, 54 Tex.Cr.R. 646, 114 S.W. 117, 119 (1908). Indeed, as to competency, Article 46.02, Section 2, V.A.C. C.P., requires that the issue be decided if the trial court determines there is evidence to support a finding of incompetency “on its own motion or on written motion by the defendant or his counsel” and if, during trial, evidence of incompetency “is brought to the attention of the court from any source,” the trial court must conduct a hearing to determine whether there is evidence to support a finding of incompetency.

      . Livar v. State, 26 Tex.App. 115, 9 S.W. 552 (1888), no error in failing to provide an interpreter for benefit of a defendant who could not speak English because there is no law requiring the court to do so; Zunago v. State, 63 Tex. Cr.R. 58, 138 S.W. 713 (1911), no error in refusing motion to exclude testimony of witnesses who testified in English that accused did not understand and expressing the opinion that the constitutional provision for confrontation was not violated; Luera v. State, 124 Tex.Cr.R. 507, 63 S.W.2d 699 (1933), no denial of confrontation with respect to witnesses for the State testifying in English when an interpreter to translate into Spanish was not requested, counsel for defendant knew and understood English and the record reflected that defendant himself could speak English.

      . In Great Britain since at least 1916 a duty is placed on a trial court to have testimony interpreted to an accused who does not understand the language spoken by a witness, Rex v. Lee Kun, 1 K.B. 337, 9 B.R.C. 1121 (1916). The same rule prevails in many other jurisdictions in this country, as noted in 23 C.J.S. Criminal Law § 1006 p. 1065 — “Testimony Through Interpreter,” citing, e. g., State v. Masato Karumai, 101 Utah 592, 126 P.2d 1047 (1942):
      “Thus it is the duty of the Court to take whatever steps are necessary to prevent injustice and, if necessary, the Court should, on its own motion, appoint an interpreter for the defendant at the State’s expense.”
      See also State v. Natividad, 111 Ariz. 191, 526 P.2d 730, 733 (1974).

      . Our holding does not, as the State argues, require it to “assume the burden of showing the defendant can in fact understand English when non-comprehension is claimed, or to allow the testimony to be interpreted.” We expressly disclaim the intent or effect of placing any burden on the State in this respect. The onus, if any there be, is still where Garcia, supra, 210 S.W.2d at 581, placed it when the ability to speak and understand English to some extent is raised:
      “[W]hen such condition arises it becomes necessary for the court, in the exercise of his discretion, to make inquiry to ascertain whether accused’s rights would be safeguarded in the absence of an interpreter.

      . This Court is not, of course, bound by any decision of the United States Court of Appeals, 2nd Circuit, but it is noteworthy that the panel rendering the opinion consisted of Chief Judge Lumbard, United States Supreme Court Associate Justice, retired, Clark and Circuit Judge Kaufman — each a respected jurist.

      .The trial court commendably appointed counsel fluent in the Spanish language and thereby afforded appellant a basic aspect of effective assistance of counsel, ability to communicate. But effectuating that important constitutional requirement should not be taken as implementing the constitutional right of confrontation. While there is a suggestion in Garcia, supra, and other cases that a lawyer speaking the same language can interpret testimony for an accused, we believe that added task, with its obvious distracting implications, should not be imposed on counsel. The lawyer discharges his obligation by providing effective assistance guaranteed by the Sixth Amendment to the Constitution of the United States and Article I, Section 10 of the Constitution of Texas. Counsel is not obliged to implement the right of confrontation. That duty is imposed upon the court by the confrontation clause in the Sixth Amendment and Article I, Section 10.

      . Ex parte Nanes, 558 S.W.2d 893 (Tex.Cr.App. 1977), granted habeas corpus relief based on the absence of an interpreter through the entire trial proceedings. In Nanes, the defendant did not speak or understand English and an interpreter used during portions of the trial stated that defendant appeared confused and in a state of shock. There is no indication in Nanes that the trial court appointed a Spanish-speaking attorney or otherwise sought to protect the defendant’s right to confront witnesses.


source: Caselaw Access Project

author: NYE, Chief Justice.

license: Public Domain

text:
    Dr. Salvador ORTIZ, et ux., Appellants, v. Bob J. SPANN, et ux., Appellees.
    No. 1388.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 10, 1979.
    Rehearing Denied Aug. 30, 1979.

      William D. Bonilla, Bonilla, Read, Bonilla & Berlanga, Inc., Corpus Christi, for appellants.
    Bob J. Spann, Spann & Smith, Corpus Christi, for appellees.
   OPINION

NYE, Chief Justice.

The plaintiffs, Bob J. Spann and wife, Dorothy Spann, brought suit against their adjoining neighbors, Dr. Salvador Ortiz and wife, Jennifer Ortiz, seeking a temporary restraining order and injunction to prohibit the defendants from cutting or trimming large oak trees allegedly belonging to the plaintiffs. In addition, plaintiffs sought damages in the amount of $75,000.00. The defendants in their sworn answer contended that the trees, in their present position, constituted a trespass upon their property, and that as a matter of law, they were entitled to cut or otherwise remove overhanging branches from their property. The trial court granted the temporary restraining order and set the case for hearing on the temporary injunction. After the hearing, the trial court granted a temporary injunction. It is from this temporary interlocutory order that the defendants appeal.

At the hearing on the temporary injunction, evidence was introduced (by way of bill of exception) and arguments were heard from the parties and/or their attorneys setting forth their various contentions. At the conclusion, the trial court granted the temporary injunction stating:

“Gentlemen, I am going to grant the temporary injunction and the reason I am is because if I deny it and if the limbs are cut, that would accomplish the purpose of the suit, and I have a rather lengthy case in which it says that the Court should never deny or grant a temporary injunction where the effect would be to accomplish the object of the suit.”

The defendants in their appeal contend that: 1) there was no evidence introduced during the course of the temporary injunction hearing; 2) the trial court erred in overruling the special exception to plaintiffs’ petition; and 3) the trial court erred in refusing to grant the defendants their request for a mandatory injunction against the plaintiffs.

The Supreme Court of Texas stated that the review of a temporary injunction in the Court of Civil Appeals presents the only question that was before the trial court: i. e., whether the plaintiff was entitled to preserve the status quo of the subject matter of the suit pending a trial on the merits. Brooks v. Expo Chemical Company, Inc., 576 S.W.2d 369 (Tex.Sup.1979).

The question of whether to grant or deny the temporary injunction that was before the trial court was presented to the court upon undisputed or agreed facts. The defendants contend that they had the absolute right of ownership to that portion of the trees that extended and protruded over and across their property: “We own this land from the bounds of the earth to the skies above.” The plaintiffs, on the other hand, contend that the defendants and plaintiffs derived the title to their property from a common source and that the trees in question were located in their present position long before the defendants acquired their property from their predecessors in title. The plaintiffs’ petition alleged the defense of limitations, acquiescence, estoppel, express and implied easements of the trees to remain in their present state and configuration.

The Supreme Court in Davis v. Huey, 571 S.W.2d 859 (Tex.Sup.1978), stated that the merits of a particular case are not presented for appellate review in an appeal from an order granting or denying a temporary injunction. The review is limited strictly to a determination of whether there has been a clear abuse of discretion by the trial court in determining whether the applicant is entitled to a preservation of the status quo pending a trial on the merits.

We find, from a review of the temporary injunction record, that a genuine factual dispute exists between the parties relative to the live oak trees in question. We agree with the trial court that the temporary injunction was necessarily issued to preserve the status quo so as to prevent a possible irreparable injury to the plaintiffs if they succeed in a trial on the merits. We find that the trial court did not abuse its discretion in granting the temporary relief.

We have considered all of appellants’ points of error, and they are overruled.

The judgment of the trial court is AFFIRMED.


author: HUGHES, Justice.

text:
    Mike MONCRIEF, County Judge, et al. v. Marshall TATE et al.
    No. 18101.
    Court of Civil Appeals of Texas, Fort Worth.
    May 24, 1979.
    Rehearing Denied June 14, 1979.

    Tim C. Curry, Criminal Dist. Atty., Tar-rant County, Marvin Collins and Joe C. Lockhart, Asst. Dist. Attys., Fort Worth, for appellants.
    Steves & Morgan, and James Henley Morgan, Fort Worth, for appellees.

      Sept. 19, 1979 Ordered Published by the Supreme Court of Texas.

   OPINION

HUGHES, Justice.

We have before us for the second time an appeal from the judgment of the trial court that held certain civil service employees of Tarrant County (janitor-custodians) must be reinstated in their civil service positions. The former appeal was dismissed because it was based on an interlocutory judgment. In that judgment there was an unresolved matter of the amount in mitigation to be applied to the employees’ back pay allowance, which required presentation of more evidence to the trial court. The matter is now back before us after further trial proceedings culminating in a final judgment.

We affirm.

We here refer to the detailed factual statement already published in the concurring opinion of Chief Justice Massey in the previous publication of this case. Moncrief v. Tate, 561 S.W.2d 941, 943-946 (Tex.Civ.App.—Fort Worth 1978, no writ).

We will refer to the appellants as “county” and the appellees as “custodians”.

The county’s first two points of error concern “good faith” and its application to the fact of the county having abolished its janitorial civil service positions and substituting a private firm to do the same work by contract. The supreme court has held, in a case very similar to this one, that the burden is on the state agency in this type of case to prove its good faith. City of San Antonio v. Wallace, 161 Tex. 41, 338 S.W.2d 153, 157 (Tex.1960). Here we are concerned with the recitation in San Antonio that “there were no pleadings which suggested that the questioned ordinance was adopted in the interest of either economy or increased efficiency, . . . .”

This case, unlike San Antonio, had testimony showing that county’s action was motivated by economy. Proof was that, by reason of studies made before the complained of action, the commissioners’ court believed that thousands of dollars could be saved by using an independent contractor instead of the civil service custodians. Trial court could have disbelieved such evidence. We conclude, however, that trial court believed the commissioners to be properly motivated even though their actions did not conform to Tex.Rev.Civ.Stat.Ann. art. 2372h-6 (1971) and Rule VII of the Tarrant County Civil Service Commission.

Certain factors have been considered as good faith in some cases where civil service positions were abolished. They include: a city not being able to pay its financial obligations for several years; no rank similar to chief of police was created where same was abolished; where members of a police force were dismissed for economy and no one was appointed to take their places; where a new position was created to replace an old one and the new duties were separate and distinct from the old position. 15A Am.Jur.2d Civil Service § 73 (1976), at 105.

It is unquestioned here that Tarrant County is in good financial condition and that Tarrant County could have continued its operation unabated, retaining its custodians.

Public policy in the matter of civil service laws is to place employees on a merit system and free from political control. In litigation the court must scrutinize attempts at circumvention. City of San Antonio v. Wallace, supra; City of Wichita Falls v. Harris, 532 S.W.2d 653 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.).

Considering the facts in this case, we must pass upon the question of whether the trial judge abused his discretion in refusing to find “good faith” as that term has been defined in cases of this type. We hold that discretion was not abused. The effecting of a potential saving by use of an independent contractor is not compelled and it would, if approved, lead to a breakdown in civil service job security generally, particularly where, as here, there had been a previous attempt to abolish civil service. This would be in contravention of public policy.

We overrule the first and second points of error.

County contends that trial court should not have assumed jurisdiction in this case under Tex.Rev.Civ.Stat.Ann. art. 2372h-6 (1971), because the administrative process does not apply to a layoff due to abolition of positions. (Article 2372h-6 provides for civil service systems in counties of 200,000 or more.)

We hold that the Rules of the Civil Service Commission apply to all “removals” of persons in the Tarrant County classified service. In such “removals” county must comply with Rule VII of the Civil Service Commission and the statutes of Texas. There was no termination of civil service status of custodians here and the abolition of their jobs must not violate the civil service rules. 15A Am.Jur.2d Civil Service § 72 “Abolition of Office or Reduction of Working Force; Reorganization-Generally”, (1976), at 104.

It is apparent that the refusal of the commission to take jurisdiction of this matter on the ground that the question was one of law for the courts to decide amounted to a final decision as contemplated in Tex.Rev. Civ.Stat.Ann. art. 2372h-6 § 9(a) (1971), which provided for appeal to a district court. In any event, it is obvious that any other route of appeal would have to be to a district court where, as here, no other forum is specified. The district court, in Texas, having general original jurisdiction in cases where remedy or jurisdiction is not provided by law, could not have lacked jurisdiction. Tex.Rev.Civ.Stat.Ann. art. 1909 (1964); Tex.Const. art. 5, § 8 (1955).

We overrule the third and fourth points of error.

Affirmed.


text:
    SKYLAND DEVELOPERS, INC., et al., Appellants, v. SKY HARBOR ASSOCIATES, Appellee.
    No. 1371.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1979.
    Rehearing Denied Aug. 30, 1979.

      Richard A. Hall, Gary, Thomasson, Hall & Marks, Corpus Christi, for appellants.
    Lev Hunt, Kleberg & Weil, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit to recover damages for breach of a real estate sales and management contract. The purchaser, Sky Harbor Associates, brought suit against the sellers, Skyland Developers, Inc., a Texas corporation, and Robert D. Reisinger, Robert B. Reisinger and James L. Collins, individually and d/b/a Skyland Developers, an Oklahoma partnership, to recover damages for the breach of the real estate sales and management contract executed by the parties on May 1, 1974. The contract provided for the purchaser to buy and the sellers to sell, and thereafter manage, as Purchaser’s agent, a 224 unit apartment complex located on South Padre Island Drive and McArdle Street in Corpus Christi, Nueces County, Texas. After a jury trial, the court granted plaintiff’s motion for judgment on the verdict and entered a judgment awarding damages of $23,061.28 to the plaintiff. The judgment also required sellers to provide plaintiff with an accounting for all income and expenses incurred in connection with the management and operation of the apartment from May 1, 1974 through December 31, 1974. Defendants appeal.

Appellants, Skyland Developers,-Inc. and Skyland Developers, (hereafter called Sellers) commenced building the 224 unit apartment project in question in 1973. While the project was still under construction, Sellers entered into a written agreement which, in part, called for the sale of the project to Sky Harbor Associates (hereafter called Purchaser). Under the terms of the contract, ownership was to be transferred to the Purchaser effective May 1, 1974, but the Sellers were to complete the construction of the project and, as agent for Purchaser, were to manage the apartment house project from May 1, 1974 through December 31, 1974. As additional apartment units were completed, Sellers executed rental agreements, collected rent and security deposits, and paid the maintenance and operating expenses. At the end of December, Sellers relinquished possession and management of the apartment complex to Purchaser.

A dispute then arose concerning the responsibility for the payment of the 1974 ad valorem taxes on the property which totaled $7,311.28. Sellers did not pay the 1974 taxes. In April, 1975, after receiving a delinquent tax statement, Purchaser paid all of the 1974 taxes. In addition, a dispute arose when management and possession of the apartment complex was turned over to Purchaser, because Sellers refused to relinquish $15,750.00 which represented unre-funded security deposits they had collected from tenants during the time they managed the complex.

The crux of the dispute between the parties concerns the following contractual provisions:

“5. Proration of Taxes. All general taxes, special assessments, liens and personal property taxes, if any, payable during the year 1974 shall be prorated on the basis of said calendar year between Seller and Purchaser as of May 1, 1974. If the amount of general taxes cannot be ascertained, such proration shall be on the basis of such taxes paid for the preceding year.
* * * * * *
9. (ii) [Seller agrees] to exercise its best efforts to lease the apartment units as agent of Purchaser . . . for which Seller shall receive compensation equal to all income and/or cash flow generated by the Project after payment of operating and maintenance expenses other than interest on the Promissory Notes [hereinafter ‘Construction Loan Interest’], which, except as otherwise provided in paragraph 11 hereof, shall be the sole responsibility and obligation to the Purchaser.
* * * * * *
Prom May 1, 1974 through December 31, 1974 (or December 1, 1974 if construction is not completed by such date), Seller shall be entitled to all income and/or cash flow from the property and shall be responsible for payment of all expenses incurred in connection with operation and maintenance thereof, other than Construction Loan Interest, which . shall be the responsibility and obligation of the Purchaser to pay direct to Cousins on a current basis.
* * * * * *
Income realized and expenses incurred in connection with operation of the Project shall be prorated between the parties hereto as of December 31, 1974 and an accounting shall be rendered with respect thereto on or before January 15, 1975.”

Purchaser filed suit alleging that, pursuant to paragraph 9 of the agreement, Sellers were to be charged with and responsible for all operating expenses of the apartment complex, including ad valorem taxes assessed against the property for the 1974 tax year. Purchaser also alleged, in effect, that the sum retained by the Sellers representing security deposits collected from tenants was not a part of the compensation Sellers were to receive for their management services.

Sellers defended, in part, on the basis that pursuant to the terms of the contract: 1) they were not obligated to pay ad valo-rem taxes for the 1974 year which accrued after May 1, 1974; and 2) the retained security deposits constituted “income and/or cash flow generated by the Project” and as such, the security deposits represented part of the Sellers’ compensation for managing the project. Sellers alternatively alleged that, if the contract did not specifically support their contentions, then such contract was ambiguous and should be construed to support their contentions.

In response to special issues, the jury found, in relevant part, that: 1) operating expenses for the apartment project for the period from May 1, 1974 through December 31, 1974, included real estate taxes on such apartments; 2) a sum of $4,191.61 represented the amount of real estate taxes which were part of the operating expenses during that period; 3) the unforfeited tenants’ security deposits were not part of the income, as that term is used in the May 1 contract, generated by the apartment complex during the period from May 1, 1974 through December 31, 1974; 4) the unfor-feited tenants’ security deposits were not part of the cash flow, as that term is used in the contract, generated by the apartment complex for the same period; 5) the sum of $15,750.00 represented the amount of unfor-feited tenants’ security deposits as of December 31, 1974; 6) the Sellers failed to render to the Purchaser an accounting on or before January 15, 1975, with respect to income realized and expenses incurred in the operation of the apartment complex for the period of time from May 1, 1974 to December 31, 1974.

In accordance with the answers to these special issues, the trial judge entered judgment awarding Purchaser $23,061.28 which represented the real estate taxes on the property for the period from May 1 to December 31, 1974, plus the sum of $15,750.00 representing the amount of tenants’ security deposits as of December 31, 1974. The trial judge refused to enter judgment awarding the Sellers $493.69 representing salaries Sellers allegedly paid by mistake for managing the project after December 31, 1974.

In points of error one through three, appellant Sellers’ major complaint is that the form in which the special issues were submitted to the jury erroneously required the jury to construe the contract, rather than answer factual inquiries concerning the intent of the parties. These contentions are predicated upon Sellers’ premise that “[ajmbiguities existed by virtue of the provision . . . that ad valorem taxes on the property were to be ‘prorated’ between the parties . . . ” [Paragraph 5], and because of the provision that Sellers would receive “compensation equal to all income and/or cash flow generated by the project after payment of operating and maintenance expenses. . . .” [Paragraph 9], Purchaser, on the other hand, contends that because the intention of the parties was not at issue, the contract was unambiguous, and thus, the trial court properly submitted issues to the jury requesting them to determine the meaning of undefined words which were used in the contract.

Our threshold inquiry is whether or not the contract in question is ambiguous. If it is not, then, even if we should agree that the form of the special issues erroneously required the jury to answer a question of law, reversible error will not be present if the trial court’s judgment, based upon the jury’s verdict, reaches the same result the trial judge should have reached if he had interpreted and construed the contract as a matter of law. See Carter v. Associates Discount Corp., 550 S.W.2d 399, 400 (Tex.Civ.App.—Amarillo 1977, no writ); City of Houston v. Howe & Wise, 323 S.W.2d 134, 143 (Tex.Civ.App.—Houston [1st Dist.] 1959, writ ref’d n. r. e.); Smith v. Smith, 187 S.W.2d 116, 121 (Tex.Civ.App.—Fort Worth 1945, no writ). As stated by one eminent authority:

“Absent some showing of extraneous prejudice, the submission of a question of law is harmless: if it is answered as the court should have decided, it can hardly damage; if it is answered to the contrary, the finding would be immaterial and hence should be ignored.” 3 McDonald Texas Civil Practice, § 12.37, p. 1169 (1965).

As a general rule, a contract is ambiguous if its meaning is “uncertain and doubtful" or “[if] it is also subject to more than one reasonable meaning, unresolvable by rules of interpretation.” Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774, 778 (1962); citing Neece v. A.A.A. Realty Company, 159 Tex. 403, 322 S.W.2d 597 (1959) and Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154 (1951). In other words, if a contract remains reasonably susceptible to more than one meaning after the established rules of interpretation have been applied, it is ambiguous. On the other hand, if only one reasonable meaning clearly emerges, it is not ambiguous. In this latter event, the contract will be enforced as written and parol evidence will not be received for the purpose of creating an ambiguity or to give the contract a meaning different from that which its language imports. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951).

In the interpretation of contracts, whether they are allegedly ambiguous as: 1) being susceptible to more than one reasonable meaning; or 2) containing language of doubtful meaning, “the primary concern of the courts is to ascertain and to give effect to the true intention of the parties.” In order to achieve this objective, the courts will examine and consider the entire writing, seeking to harmonize and to give effect to all of the provisions of the contract, as best they can, so that none will be rendered meaningless. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 158 (1951). See Citizens National Bank in Abilene v. Texas & P. Railway Co., 136 Tex. 333, 150 S.W.2d 1003 (1941); Nixon v. First State Bank of Corpus Christi, 540 S.W.2d 817, 821 (Tex.Civ.App.—Corpus Christi 1976), writ ref’d n. r. e., 544 S.W.2d 378 (Tex.Sup.1977).

Under the rules of law established in the above cited authorities, we must look first to the document in question without consideration of any extrinsic evidence to determine if an ambiguity exists within the contract. As earlier stated, the Sellers relied upon two alleged ambiguities. Sellers contend the first ambiguity exists by virtue of the tax proration which requires the Sellers and Purchaser to prorate the 1974 tax liability for the apartment complex contained in paragraph 5 and the provision in paragraph 9 which required the Sellers to pay all maintenance and operation expenses of the apartment complex incurred during the period from May 1, 1974 through December 31, 1974. Second, Sellers contend, in essence, that the phrase “income and/or cash flow generated by the Project” is ambiguous because such phrase could reasonably be construed either to include or to exclude tenant security deposits which Sellers collected but which remained unforfeited as of December 31, 1974.

At the outset, we observe that the contract in question is significantly more complex than the usual contract to effectuate the sale and purchase of property. A reading of the entire document reveals that the parties actually contemplated three separate, yet interrelated transactions: 1) the purchase and sale of the apartment complex; 2) the completion of the construction of the apartment complex by December 31, 1974; and 3) the internal management of the apartment complex for the period from May 1, 1974, through December 31, 1974. In accordance with the provisions relating to these three separate purposes, Sellers had three distinct legal relationships to the Purchaser. First, the Sellers were grantors of the property and agreed to sell the apartment complex in question to Purchaser, prorate taxes to date of closing. Second, the Sellers were to be the “general contractor of Purchaser in compliance with the terms of the Construction Loan Agreements” and were to “diligently proceed to complete construction of the Project on or before December 1, 1974.” Third, the Sellers were to act as managers of the apartment complex as specified in the disputed paragraph 9 wherein Sellers agreed “to exercise its best efforts to lease the apartment unit as agent of Purchaser . . . until December 31, 1974. ...”

Concerning Sellers’ third legal capacity, its duties as Purchaser’s leasing agent (paragraph 9), required the Seller .to be responsible “for payment of all expenses incurred in connection with operation and maintenance . . . ” of the apartment complex. Paragraph 9 further expressly provided that Sellers’ compensation for executing its duties as “agent" of Purchaser would be “all income and/or cash flow generated by the Project after payment of operating and maintenance expenses other than interest on the Promissory Note (hereinafter Construction Loan Interest) . . ”

The obvious purpose of the proration paragraph (taxes), when considering the contract as solely for the sale and purchase of property, is to apportion the tax liability for the 1974 tax year between the Sellers and the Purchaser in accordance with their respective periods of ownership during that year. Absent such a clause, the Sellers would be liable for all ad valorem taxes assessed against the property for that year. See Dickison v. City of San Antonio, 349 S.W.2d 640 (Tex.Civ.App.—San Antonio 1961, writ ref’d n. r. e.); Tex.Rev.Civ.Stat. Ann. art. 7151 (1962). The management portion of the contract (paragraph 9), on the other hand, obligates the Sellers to act as “agent” of the Purchaser in leasing apartments, executing leases and paying all expenses “incurred in operating and maintaining the apartment complex.” The next question is whether or not taxes should be included within the purview of operating and/or maintenance expenses. We hold that it does.

In interpreting or construing a contract, the language of the contract is of the first importance. Gallup v. St. Paul Ins. Co., 515 S.W.2d 249 (Tex.Sup.1974). The language used by the parties to a written instrument should be given its plain, grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Fox v. Thoreson, 398 S.W.2d 88 (Tex.Sup.1966); Tower Contracting Co. v. Flores, 157 Tex. 297, 302 S.W.2d 396 (1957); General American Indemnity Co. v. Pepper, 161 Tex. 263, 339 S.W.2d 660 (1960); Gulf, C. & S. F. Ry. Co. v. State, 97 Tex. 274, 78 S.W. 495 (1904), aff’d, 204 U.S. 403, 27 S.Ct. 360, 51 L.Ed. 540 (1905). If a disagreement about the use and meaning of language used in a contract arises, courts will construe what the parties said in the light that ordinary men would have used and understood such language. Jones v. Dumas Development Co., 229 S.W.2d 936 (Tex.Civ.App.—Amarillo 1950, writ ref’d n. r. e.). In addition, the objects and purposes intended to be accomplished by the parties in entering the contract must be kept in mind. Lab Oil Co. v. Bentz, 380 S.W .2d 846, 849 (Tex.Civ.App.-Corpus Christi 1964, no writ). As stated by our Supreme Court in Garcia v. King, 139 Tex. 578, 164 S.W.2d 509 (1942):

“In order to understand and properly interpret the language used by the parties we must consider the objects and purposes intended to be accomplished by them in entering into the contract.”

As used in the context of this part of the transaction (“agent” of Purchaser in leasing and managing the property) the common or usual meaning of the term “operate” means “to conduct or direct the affairs of (a business, etc.); manage.” Webster’s New World Dictionary (2d College Ed. 1974). The term “expenses,” as it is understood in its usual meaning under the circumstances in question means “charges or costs met within running a business, doing one’s work, maintaining property, etc.” The term “operating expenses,” then, would mean those expenses incurred in the course of conducting, directing or managing the affairs of a business, such as an apartment complex. The term, as it is normally understood in its usual and customary sense, is, without a doubt, broad enough to encompass all expenses, including ad valo-rem taxes assessed against the property.

We fail to see the ambiguity which Sellers contend is created by paragraph 9 (compensation paragraph) and paragraph 5 (proration paragraph). Pursuant to paragraph 5, the parties obviously intended the Sellers to assume the responsibility for paying the ad valorem taxes in proportion to the duration of their ownership for the year 1974. Pursuant to paragraph 9, the parties intended the Sellers, as “agents” of Purchaser, to pay on behalf of the Purchaser, all maintenance and operating expenses of the apartment complex, including Purchaser’s ad valorem tax liability. We are of the opinion that the fact that the Sellers were required to pay the tax liability in two capacities—i. e., their own individual capacity as sellers and in their representative capacity as “agents” of the Purchaser, does not render the provisions of the contract ambiguous. We pause to note that the contract (which incidentally was prepared by the Sellers), made one specific exception to the requirement that Sellers pay all operating expenses. The contract provided that the interest payment on the construction loan would be the sole responsibility and obligation of the Purchaser: to pay the amount “directly to Cousins on a current basis.” We hold that paragraphs 5 and 9 are not ambiguous, and that they are subject to only one reasonable interpretation.

The second major dispute between the parties concerns the question of whether or not “income and/or cash flow generated by the Project” includes sums of money the Sellers received as security deposits when acting as agent for the Purchaser. The contract in question makes no particular reference to security deposits. Paragraph 9 of the contract does, however, specifically enumerate some of Sellers’ leasing duties as “agent” of the Purchaser. Paragraph 9 required Sellers to lease each apartment for a term of not less than six months and to obtain written leases from each tenant in a specified form which was attached to the contract as Exhibit “0.” This lease form makes several references to the security deposit required by each applicant for an apartment unit. In particular, paragraph 7 of the rental agreement provides as follows:

“The applicant (tenant) understands and agrees that the security deposit will be maintained at all times to guarantee the Landlord against loss from damage, loss or rental due the Landlord, against failure to give proper vacating notice as stipulated below, or failure to leave the apartment in the same condition and as clean as when rented, ordinary wear and tear excepted, as verified by the attached inventory sheet. Applicant understands that said deposit will be returned to a forwarding address only after all conditions have been satisfied, the apartment has been completely vacated by the tenant and inspected by the Landlord or his agent, and all keys have been returned.” (Emphasis added).

The attached inventory sheet (referred to in paragraph 7) included a schedule of “minimum charges” which would be deducted from the security deposit. It included for example: keys not returned — $5.00, general cleaning — $7.50, cleaning oven and range— $7.50, etc.

The lease form and other exhibits attached within Exhibit “6” clearly contemplate that, insofar as the contract between the Landlord and tenant was concerned, the tenant security deposits, although held by the Landlord, would be returned to the tenant upon satisfying certain conditions. By the express terms of the contract in question, the Sellers were “agents” of the Purchaser in leasing the apartments, collecting rents and refunding unforfeited security deposits, and Sellers were to be compensated for their duties in an amount equal to all “income and/or cash flow generated by the Project.” If, during the time prior to December 31,1974, a tenant did not satisfy the conditions precedent to receiving the return of all or part of his security deposit when his lease expired, the “Landlord” would be entitled to retain all or part of the security deposit as reimbursement for loss or expenses incurred.

The Sellers vigorously contend that “income and/or cash flow” is sufficiently broad to authorize them to keep all tenants’ security deposits, whether or not such deposits were forfeited. We do not agree. This is not a reasonable construction of the contract as written. It is evident from the express language of the contract that the parties intended for the Sellers to act in the capacity of an agent in leasing and in managing the apartment complex on behalf of the Purchaser only until December 31,1974. After this date, the parties intended the Purchaser to assume the duties of landlord and owner of the apartment complex. Article 5236e of the Texas Revised Civil Statutes (Supp.1978-79) generally governs the obligation of a landlord to return to tenants unforfeited security deposits. Pursuant to this article, Purchaser, as (the new) landlord and owner of the apartment complex, was legally liable for the return of all unforfeit-ed security deposit refunds made subsequent to December 31, 1974, even though Sellers, as Purchaser’s “agent,” had collected these deposits prior to December 31, 1974. Had the parties intended for the Purchaser to be solely liable to the tenants for the unforfeited security deposits collected by the Sellers by allowing the Sellers to retain such deposits as a portion of the “income and/or cash flow generated by the Project,” after all expenses had been paid, a specific provision requiring such result would have been included in the contract in question. The contract makes no such provision.

Our interpretation of this portion of the contract in question is further strengthened by an additional provision in paragraph 9. It requires a proration of the “income realized and expenses incurred” between the Sellers and the Purchaser as of December 31, 1974, and an accounting thereof prior to January 15, 1975. It is evident to us that the parties intended for the continuing obligations of the Purchaser, as landlord and owner, including its obligation to refund unforfeited tenants’ security deposits to be itemized in an accounting, and prorated accordingly as of December 31, 1974.

The problem that the parties experienced in this case was recognized by Chief Justice Calvert in Moore v. Smith, 443 S.W.2d 552 (Tex.Sup.1969):

“It is nearly always possible to find some provision in a lengthy written instrument which seems to some extent to be out of harmony with the main thrust of the instrument, but such provision or provisions should not be permitted to obscure the otherwise clearly indicated intention of the parties to the instrument.” Gulf Oil Corp. v. Southland Royalty Co., 478 S.W.2d 583, 586-87 (Tex.Civ.App.—El Paso 1972), writ ref’d n. r. e., 496 S.W.2d 547 (Tex.Sup.1973).

We hold that only one reasonable meaning clearly emerges from the four corners of the contract in question when aided by the rules of interpretation and construction. Universal C. I. T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). We are of the opinion that the trial court’s judgment based upon the jury’s verdict reaches the same result as the trial judge should have reached if he had interpreted and construed the contract in question as a matter of law. See Carter v. Associates Discount Corp., 550 S.W.2d 399, 400 (Tex.Civ.App.—Amarillo 1977, no writ); City of Houston v. Howe & Wise, 323 S.W.2d 134, 143 (Tex.Civ.App.—Houston [1st Dist.] 1959, writ ref’d n. r. e.). This disposition renders appellants’ points of error four and five immaterial for they could not affect the outcome of the case. Accordingly, appellants’ points of error one through five are hereby overruled.

In point of error number six, Sellers complain, in effect, that the trial court erred in failing to offset against the total recovery, an amount the jury found that the Sellers had paid to persons who had performed management services for the apartment complex after December 31, 1974. This point of error is waived because it fails to meet the minimum briefing requirements. No authority is cited to support Sellers’ general arguments that the trial court committed reversible error in this instance. It is not up to the appellate courts to brief points of error for attorneys. When a point of error is not briefed on appeal, it is waived. Crutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380, 389 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.), cert. denied, 433 U.S. 910, 97 S.Ct. 2978, 53 L.Ed.2d 1095 (1977); Inman v. Padrezas, 540 S.W.2d 789, 797 (Tex.Civ. App.—Corpus Christi 1976, no writ); City of Wichita Falls v. Harris, 532 S.W.2d 653, 662 (Tex.Civ.App.—Fort Worth 1975, writ ref’d n. r. e.); Whitson Company, Inc. v. Bluff Creek Oil Company, 278 S.W.2d 339, 347 (Tex.Civ.App.—Fort Worth 1955), aff’d 156 Tex. 139, 293 S.W.2d 488 (1956); Rule 418, T.R.C.P.; see our local briefing rules in the appendix to Dobie v. Continental Oil Company, 552 S.W.2d 183 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.). Appellants’ point of error number six is overruled.

In point of error number seven, Sellers complain that the trial court erred in entering a judgment that required Sellers to account to Purchaser for “all income realized and expenses incurred in connection with the operation” of the project during the period from May 1, 1974 to December 31, 1974. The undisputed evidence introduced at trial established that at the end of the eight month period, Sellers delivered to Purchaser the January rent which had been collected in advance, and that no other accounting was tendered. Sellers complaint is that the contract expressly provided that the only accounting required was with respect to items which were subject to proration between the parties as of December 31, 1974. We do not agree.

The clause in question required that “income realized and expenses incurred” in the operation of the apartment complex “shall be prorated between the parties as of December 31, 1974.” The contract further required that an accounting with respect to such income realized and expenses incurred shall be rendered on or before January 15, 1975. We believe that the parties contemplated that all monies obtained and all expenses paid during the full eight month period should be included in the accounting and that a proration would be based upon the parties’ respective rights to claim the income, and obligations to bear the expenses would be determined in accordance with that accounting. Appellants’ point of error number eight is also overruled.

The judgment of the trial court is hereby AFFIRMED.


author: YOUNG, Justice.

text:
    MO-VAC SERVICE, INC., Appellant, v. MARINE CONTRACTORS & SUPPLY, INC., Appellee.
    No. 1373.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1979.
    Rehearing Denied June 14, 1979.
    H. H. Rankin, Jr., Rankin & Kern, Inc., McAllen, for appellant.
    W. Robert Anderson, III, Ewers, Toot-haker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for appellee.
   OPINION

YOUNG, Justice.

This is an appeal from a default judgment awarding damages for conversion of oil. The primary issues are whether the pleadings are sufficient to support the default judgment and whether the issue of damages may be severed from the liability issue and remanded for trial.

Appellee Marine Contractors & Supply, Inc. brought a cause of action for conversion against the appellant, Mo-Vac Service Company, in the 61st District Court of Harris County, Texas, on May 13, 1977. Generally, the petition alleged that on or about March 22,1977, Mo-Vac, without permission or consent of Marine Contractors, removed 453.09 barrels of crude oil from a lease operated by Marine Contractors known as the L.S. Rivers Lease in Nueces County, Texas; that Mo-Vac became thereby bound to pay to Marine Contractors the reasonable value of such oil; and that the market price at the time of such removal and taking was $10.25 per barrel. The plaintiff further alleged that a claim was made for the value of the oil which claim was refused and that because of this the plaintiff was damaged in the amount of $4,644.07. In addition to these allegations, the plaintiff appended to the petition the invoice it sent to Mo-Vac Service Company, much in the form that one would append to a petition on a sworn account.

Appellant filed a plea of privilege which was sustained on July 6, 1977, and the ease was transferred to Hidalgo County, Texas. Thereafter, the appellant failed to file an answer and a default judgment for the amount requested plus attorney’s fees was rendered against the appellant on March 7, 1978. During the brief hearing on the default judgment, the appellee’s McAllen attorney who had been substituted for the Houston attorney who filed the suit, characterized the suit as one on a sworn account. No mention was made in the judgment, however, of how the trial court characterized the suit, except that the court awarded attorney’s fees to the appellee. See Tex. Rev.Civ.Stat.Ann. art. 2226 (Supp.1978).

Appellant filed a motion for new trial on March 29, 1978. The motion for new trial and its appended affidavits alleged an excuse for failure to file an answer, alleged a meritorious defense, and asserted that the granting of a new trial would not cause an unnecessary delay in the case. Compare Ivy v. Carroll, 407 S.W.2d 212 (Tex.Sup.1966). In addition, the motion for new trial alleged that the petition and the evidence at the default judgment hearing were insufficient to support the default judgment. The motion was heard on March 30, 1978, and was denied April 3, 1978. Defendant Mo-Vac appeals.

Appellant brings five points of error. Point 1 contends that this was not a suit on a sworn account but rather one for conversion; point 2 contends that the pleadings are insufficient to support a suit on a sworn account; point 4 contends that the suit was one for an unliquidated claim requiring a hearing on damages; and point 5 contends that the judgment for attorney’s fees was unjustified. Appellee agrees with appellant’s points 1, 2, 4 and 5. That is, it agrees that the pleadings present a case for conversion, that the claim was unliquidated and requires a hearing on damages and that no attorney’s fees are justified in this case. In sum, it submits that the case be reversed in part and rendered as to attorney’s fees and reversed and remanded for a hearing on damages. But appellee contends that the decision as to liability should stand. Appellant’s point 3 speaks to this contention; i. e., it alleges that the pleadings and evidence were insufficient to support the default judgment. We sustain appellant’s points 1, 2, 4 and 5. Our discussion and disposition of appellant’s point 3 follows.

No findings of fact or conclusions of law were requested or filed and consequently the judgment of the trial court must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.Sup.1977). Accordingly, if the pleadings and evidence support a judgment for conversion, the liability portion of the default judgment must be affirmed.

The test for determining the sufficiency of a pleading to support a default judgment provides that the averments of the pleadings are to be taken as proven or confessed. And, if the pleadings do not inform the court what judgment to render, that is, if they do not, with sufficient certainty, set forth the cause of action as to the name of the parties, dates and amounts to enable the court to render judgment without information aliunde, they are not sufficient, and the judgment cannot be sustained. C & H Transportation Company v. Wright, 396 S.W.2d 443, 446 (Tex.Civ.App.—Tyler 1965, writ ref’d n. r. e.). In other words, in order to be sufficient to support a default judgment, a plaintiff’s petition must at least set forth sufficient facts and circumstances which constitute the cause of action as to fairly notify the adversary of the basis of the claim and of the relief being sought. C & H Transportation Company v. Wright, supra. See also Edwards Feed Mill v. Johnson, 158 Tex. 313, 311 S.W.2d 232 (1958); Griswold v. Carlson, 151 Tex. 246, 249 S.W.2d 58 (1952); Fitz v. Toungate, 419 S.W.2d 708, 710 (Tex.Civ. App.—Austin 1967, writ ref’d n. r. e.); Kothmann v. Lett, 248 S.W.2d 302 (Tex.Civ.App.—Austin 1952, writ ref’d n. r. e.). McDonald, Texas Civil Practice § 17.23.3 (1971).

In looking to the petition herein to determine if it clearly notifies the adversary of the basis of the plaintiff’s claim, we find that all of the elements of a cause for conversion are adequately pled. See 14 Tex.Jur.2d, Conversion §§ 62-70 (1960). Compare Borrego v. Palacio, 445 S.W.2d 620 (Tex.Civ.App.—El Paso 1969, no writ); Rankin v. Clemons, 358 S.W.2d 704 (Tex.Civ.App.—Austin 1962, writ ref’d n. r. e.). Appellant complains, however, that the allegations of ownership and/or possession are inadequate. As to the allegation of ownership and/or possession, we note that bare possession is sufficient title on which to recover for conversion as against a naked trespasser. Southwestern Bell Tel. Co. v. Commercial Metals Co., 389 S.W.2d 116, 120 (Tex.Civ.App.—Houston 1965, no writ); Lee C. Moore & Co. v. Jarecki Mfg. Co., 82 S.W.2d 1002 (Tex.Civ.App.—Eastland 1935, writ ref’d). In this regard, appellee alleged in its petition that the crude oil was removed without its permission or consent from a lease that it operated and that the defendant was thereby bound to pay the appellant the reasonable value of such oil. Moreover, the appellee appended to the petition an invoice charging the appellant for the value of the oil. In Williams & Meyers, Oil & Gas Law, Manual of Terms 401, 655 (1976), an operating interest is defined as an interest in oil and gas that is burdened with the cost of development and operation of the property. It is normally created by an oil and gas lease. Consequently, the allegation in the petition herein alleges some ownership interest in the oil in question and since the lease was operated by the appellee and the oil was located on said lease the property was in appellee’s possession. We think the appellee’s allegations were sufficient to fairly notify the appellant regarding ownership or possession.

About appellant’s argument that the evidence is insufficient to justify the default judgment, the law is clear that a default judgment operates as an admission of the material facts alleged in plaintiff’s petition except as to unliquidated damages. Nipper v. U—Haul, 516 S.W.2d 467 (Tex.Civ.App.—Beaumont 1974, no writ); Southern S.S. Co. v. Schumacher, 154 S.W.2d 283, 284 (Tex.Civ.App.-Galveston 1941, writ ref’d w. o. m.). Having found the petition sufficient to allege a cause of action we therefore find that it constitutes sufficient evidence of the cause of action here on appeal. Appellant’s point 3 is overruled.

The next issue is whether the issues of liability and damages may be severed and the damage issue reversed and remanded for a hearing.

Rule 434, T.R.C.P., states concerning the severing of causes to-wit:

“. . . and if it appear to the court that the error affects a part only of the matter in controversy and that such part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error, provided that a separate trial on unliquidated damages alone shall not be ordered if liability issues are contested.”

As stated earlier, the liability issues were uncontested at the time of trial when the default judgment was entered. Nipper v. U — Haul, supra. Thus we hold that the provision of Rule 434 concerning a separate trial on unliquidated damages to be inapplicable to this case and that this cause shall be remanded for a hearing on damages only. In Justice Life Insurance Company v. Walker, 508 S.W.2d 434, 439 (Tex.Civ.App.—Fort Worth 1974, writ ref’d n. r. e.), the court there addressed this same issue of separate trial within a procedural context similar to the case before us. The court there, though not working within the confines of Rule 434, held that the issues of liability and damages could be severed in spite of the language of Illey v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958), mandating that courts refrain from trying cases piecemeal. There is no particular novelty in our severing on appeal the issue of damages from that of liability following a trial court judgment by default. See, e. g., Freeman v. Leasing Associates, Inc., 503 S.W.2d 406 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ); Kothman v. Lett, supra; San Antonio Paper Co. v. Morgan, 53 S.W.2d 651, 655-56 (Tex.Civ.App.—Austin 1932, writ dism’d).

The judgment of the trial court is affirmed on the issue of liability; the judgment is reversed and remanded for a trial on the issue of damages; and further, the judgment is reversed and judgment is here rendered that the appellee take nothing as to attorney’s fees.

Affirmed in part, reversed and remanded in part, and reversed and rendered in part.


author: BISSETT, Justice.

text:
    David DIAZ, Appellant, v. Juanita O. CANTU, Appellee.
    No. 1376.
    Court of Civil Appeals of Texas, Corpus Christi.
    May 31, 1979.
    Rehearing Denied June 15, 1979.

      Irma Rangel, Garcia & Rangel, Kings-ville, for appellant.
    Leo Villarreal, Glusing, Sharpe, Villarreal & Williams, Kingsville, for appellee.
   OPINION

BISSETT, Justice.

This is a suit for conversion. Juanita O. Cantu sued David Diaz and his wife for damages as a result of alleged conversions of: 1) $2,000.00 cash from a safety deposit box; 2) a certificate of deposit in the amount of $2,373.59; and 3) the proceeds of the payment of $4,012.70 on an insurance claim. Trial was before a jury. Judgment was signed on February 10, 1978, wherein the plaintiff, Juanita O. Cantu recovered of David Diaz, $4,012.70 as actual damages for conversion of the aforesaid insurance proceeds and $10,000.00 as exemplary damages. It was further decreed that the plaintiff take nothing in her suit against Mrs. Diaz. David Diaz has duly perfected an appeal from the judgment.

Diaz, in his answer to Cantu’s petition, in addition to other defenses, denied that he took the $2,000.00 in cash. He further alleged, by way of affirmative defense, that the aforesaid sums of $2,373.59 and $4,012.70 were given to him by Cantu in gratitude and appreciation for aid, assistance and the many kindnesses which he had extended to her in days gone by.

Diaz first contends that there is no evidence to support the answers to Special Issues 3 and 13, wherein the jury found that Diaz “converted to his own use the proceeds received by Juanita Cantu from the insurance company” (No. 3); and that Cantu did not make a gift of such proceeds “to the members of the Diaz family individually or collectively” (No. 13). In the alternative, it is claimed that the evidence is factually insufficient to support such answers.

In disposing of the “no evidence” and “factually insufficient evidence” points, we consider all of the evidence and adhere to the well-established rules set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965) and In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Cantu became disabled in 1969. She was 56 or 57 years of age at that time. As a result of such disability, she was awarded $1,704.00 by the Social Security Administration. Her disability forced her to quit her regular job because it required her to be on her feet for long and uninterrupted periods of time. However, she did perform odd jobs subsequent to her disability until late summer of 1975. These jobs consisted in the main of yard work such as mowing laws, edging borders, trimming shrubbery, and the like. Between July 13, 1975, and September 13, 1975, one of her legs was amputated. At that time she was the insured under a hospitalization and medical insurance policy. On January 2, 1976, a check in the amount of $4,012.70, payable to her order, was delivered to Diaz by a duly authorized representative of the insurance company. This check represented a complete settlement with the company for Cantu’s loss of her leg. Diaz delivered the check to Cantu, who endorsed it; Diaz deposited the proceeds thereof “in a certificate of savings in the State Bank of Kings-ville.”

It is undisputed that Diaz subsequently used the proceeds from the insurance company’s check to purchase property in his own name for his own exclusive use and benefit. According to Diaz, Cantu, when she endorsed the insurance company check, told him:

“It is your check, you keep it. Do whatever you want to do.”

Diaz contends that the allegation of conversion of the insurance proceeds is refuted, and his defense of “gift” is established, by his own testimony and the testimony of witnesses called by him, who testified substantially, as follows: he and Cantu had been friends for many years; Cantu referred to Diaz and his family as “her folks”; prior to the hospitalization which resulted in the amputation of Cantu’s leg, Diaz, or members of his family, took Cantu to Galveston for medical examinations on several occasions; Cantu went to live permanently in the home of Diaz in March, 1975, where she remained until November, 1976; during the aforesaid period of time, Diaz and members of his family took care of her by cooking for her, laundering her clothes, running errands for her and furnishing her with living quarters, all without cost or expense to her. Diaz also testified that he paid premium payments on her insurance policy; he furnished her with free gasoline, oil and repairs to her motor vehicle from March, 1975, to November, 1976, when she lived in the house furnished by him.

It is undisputed that Cantu was completely self-supporting from the time she was disabled in 1969, until March, 1975, when she moved to a rent house owned by Diaz. The evidence introduced by Cantu sharply conflicted with the evidence adduced by Diaz concerning her support from March, 1975, to November, 1976. Cantu testified that her reason for moving was because there would be neighbors (the Diaz family) close by who could assist her in the event she got sick. She further testified that Diaz never supported her and that she, in effect, supported herself during the time that she lived in the rent house owned by Diaz, as a result of monies paid by her to the Diaz family and monies provided by the Welfare Department for her support. It is undisputed that in March, 1975, one Frank Rios owed Cantu the sum of $3,206.66. He was paying her $65.00 per month on said debt. From March, 1975, to November, 1976, this monthly payment of $65.00, pursuant to Cantu’s instructions, was made by Rios directly to Diaz. It is further undisputed that Cantu paid Mrs. Diaz $100.00 in cash on October 3, 1975, which, according to Cantu was compensation for her meals and upkeep to date. She also paid Mrs. Diaz $60.00 in cash per month thereafter until May, 1976, when the Welfare Department commenced paying Mrs. Diaz for Cantu’s care. These payments consisted of a May payment of $130.00 and payments of $127.00 each for the months of June, July, August, September and October, 1976. In addition, food stamps in the amount of $50.00 per month for the months of June, July, August, September and October, 1976, were made available to Cantu, but they were used by Mrs. Diaz in the purchase of food. There is no evidence that the food purchased with the stamps was consumed exclusively by Cantu, and the only inference that can logically be drawn from the evidence is that such food went into the larder of the Diaz family and that it was consumed by the members of the family along with Cantu.

On the issue of “gift,” Cantu denied that she gave the insurance proceeds to Diaz. She said that she told Diaz to put the check in “savings.” Apparently at that time she did have a savings account. Her position on the question of “gift” was stated by her, as follows:

“This is not a gift. This money was put up in those savings for this situation that I was suspecting. I was getting older everyday. And the situation was going to be that I didn’t have nobody to take care of me. And this money was put with the intention — whenever I laid down and nobody can take care of me, I won’t have to pay somebody to wait on me. And I would have this money in savings. Otherwise, if I didn’t want to safe (sic) this money for this situation, I could have got it out of there and bought me a house and got it out of there and buy anything I wanted. And this money was put there for the purpose of I was getting older and getting sick.”

Concerning the alleged conversion of the proceeds from the insurance company check, Cantu testified: on September 24, 1976, she requested that Diaz take her to see a doctor in Corpus Christi, Texas; Diaz refused for the reason: “the County will not permit me anymore to take anybody anywhere else” ; Cantu then asked “how am I going to go to the doctor in Corpus?” ; Diaz replied: “Call the Community Action” ; whereupon, Cantu said: “I want some money” ; Diaz told her: “I don’t have any money.” Thereafter, Cantu called Community Action, which transported her from Kingsville to the doctor’s office in Corpus Christi, and following a period of hospitalization and treatment took her back to Kingsville on October 27, 1976. Cantu packed her belongings and left the Diaz premises on November 2,1976. She did not return thereafter. On April 4, 1977, an attorney representing Cantu, wrote Diaz and demanded that payment be made immediately of the $2,000.00 cash in the safety deposit box, the certificate of deposit and the insurance proceeds. Diaz did not make any payment. This suit was then filed on April 23, 1977.

Mrs. Diaz, in answer to the question:
“When was the first time that you understood that Miss Cantu was demanding her money back?” ;

responded:

“it must have been the first notice my husband got.”

Diaz, who acknowledged that he knew that Cantu wanted her money back, was somewhat confused as to the date he first learned of that fact. He did, however, admit that he was so advised by her attorney “in January of ’76 or ’77.”

For the most part, the only testimony of probative value concerning the alleged “conversion” and the defensive allegation of “gift” is found in the testimony of Diaz, his wife, and Cantu. The testimony of other witnesses sheds little light on the issues.

The testimony of a party to a suit raises an issue of fact. Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962). It is within the province of a trier of fact, the jury in the instant case, to judge the credibility of a witness and the weight to be given testimony by the witness. Austin Fire Ins. Co. v. Adams-Childers Co., 246 S.W. 365 (Tex.Com.App.1923, opinion adopted).

A court of civil appeals cannot substitute its judgment for that of a trier of fact, even though after reviewing the evidence it may have reached a different conclusion from that of the jury, or judge, as the case may be. Johnson v. Buck, 540 S.W .2d 393 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.); Bardwell v. Anderson, 325 S.W.2d 929 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.). Nor may a court of civil appeals pass upon the credibility of witnesses. Burchfield v. Tanner, 142 Tex. 404, 178 S.W.2d 681 (1944).

In the instant case the credibility of the parties and their witnesses, the weight to be given their testimony, the nature of the relationship between the parties, and the grounds for assertions of bias and prejudice on the part of the witnesses called to testify for the parties were very pointedly brought to the attention of the jury by counsel for each of the parties. The many conflicts, disputes and contradictions presented by the evidence were resolved by the jury, the trier of fact. The jury found in favor of Diaz with respect to the alleged conversion of $2,000.00 cash when it believed Diaz who testified that he never saw any cash in the safety deposit box. The jury further believed Diaz when he testified that Cantu gave him the certificate of deposit. The jury, however, did not believe Diaz and his witnesses with respect to the dispute between the parties as to whether or not Cantu made a gift to him of the insurance proceeds. That dispute was resolved in favor of Cantu.

The burden of proof of a gift inter vivos is on the party claiming that the gift was made. Garrett v. Hunt, 283 S.W. 489 (Tex.Com.App.1926, opinion adopted); Forbes v. Forbes, 430 S.W.2d 947 (Tex.Civ.App.—Amarillo 1968, no writ). Diaz did not meet that burden.

We hold that there is ample evidence to support the findings by the jury: 1) that Cantu did not make a gift of the insurance proceeds to Diaz; and 2) that Diaz converted the proceeds paid by the insurance company to Cantu for his own use. The “no evidence” and “factually insufficient evidence” points relating to “conversion” and “gift” cannot be sustained.

Diaz further contends that the trial court erred in failing to submit a proper definition of “gift” in connection with the submission of Special Issue 13. We do not agree.

Special Issue 13 inquired into whether Cantu made a gift of the insurance proceeds to Diaz. The jury found: “She did not make a gift.” The trial court submitted the following instruction:

“In answering Special Issue No. 13, you are instructed that for there to have been a gift of the proceeds of the insurance policy in question, there must have been a delivery of possession of such proceeds by Juanita O. Cantu to a member of the Diaz family together with the intention of Juanita O. Cantu at that time to relinquish all of the rights, title, and interest in such proceeds unconditionally and vesting the same in the members of the Diaz family individually or collectively.”

We hold that the definition of “gift” as contained in the aforesaid instruction was proper. Forbes v. Forbes, supra; 27 Tex. Jur.2d, Gifts, §§ 6, 8. The definition is not “a comment on the weight of the evidence,” as argued by Diaz.

It is also asserted that the trial court erred in connection with the submission of Special Issue 4, in failing to submit a proper definition of the terms “maliciously,” “wantonly,” “fraudulently,” and “unlawfully” for “the purpose of establishing whether or not Appellant committed any act in such a fashion.”

Special Issue 4, which was to be answered only if the jury found that Diaz did convert the insurance proceeds to his own use, reads:

“Do you find from a preponderance of the evidence that in so converting David Diaz acted intentionally, willfully, and in conscious disregard of the rights of Juanita Cantu?”

The jury answered:

“He did.”

The contention has no merit. The language used by the trial court in the submission of Special Issue 4 was proper. The failure to define the terms “maliciously,” “wantonly,” “fraudulently,” and “unlawfully” did not constitute reversible error.

Diaz also claims that the trial court erred in failing to submit special issues on “demand” and “refusal.” We disagree. The record conclusively shows that a demand was made by the attorney for Cantu that Diaz return the insurance proceeds. Diaz, while he did not remember the exact date he received the “demand” nevertheless knew that Cantu was demanding that he return the insurance proceeds to her. It is undisputed that he did not return or repay any of the proceeds. Thus, there was no need to submit issues on “demand” and “refusal”.

Diaz does not, by a point of error, complain that the award of $10,000.00 is excessive; he does not ask for a remittitur. Diaz complains that there is no evidence, or, in the alternative, that the evidence is factually insufficient to support the award. The prayer for relief in his brief filed in this Court, in pertinent part, asks “that this cause be reversed and rendered in favor of Appellant and for such other relief as may appear proper.” He does not ask for a reversal and remand. The question of ex-cessiveness as to the award of $10,000.00 is not before us in this appeal.

Having found that Diaz did convert the insurance proceeds to his own use, the jury properly considered and answered Special Issue 15, the exemplary or punitive damage issue. The jury was instructed:

“In connection with the foregoing special issue, you are instructed that ‘Punitive Damages’ are damages allowed, not as compensation, but as punishment by reason of wrongdoing for an act or acts done intentionally, willfully, and in conscious disregard of the rights of another and as an example for the good of the public to deter or discourage similar acts in the future by others. Punitive damages may be assessed by (sic) a jury, in its discretion, finds from a preponderance of the evidence that such punitive damages should be assessed.”

An analysis of the record in its entirety shows that there was ample evidence to support an award of money as punitive damages in this case. The award of $10,000.00 is fully warranted by the evidence. For authorities dealing with the assessment of money as punitive damages where there has been an intentional, willful and conscious disregard for the rights of others, see Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444 (Tex.Sup.1971); Ware v. Paxton, 359 S.W.2d 897 (Tex.Sup.1962); Masso v. Bryan, 498 S.W.2d 19 (Tex.Civ.App.—Austin 1973, writ ref’d n. r. e.); LeMieux Lumber Co., Inc. v. Newman, 437 S.W.2d 356 (Tex.Civ.App.—Beaumont 1969, writ ref’d n. r. e.); Louisiana Pacific Corp. v. Smith, 553 S.W.2d 771 (Tex.Civ.App.—Tyler 1977, no writ).

We have carefully considered all of the evidence adduced at the trial and all of the points of error which have been brought forward in this appeal. All points are overruled.

AFFIRMED.

NYE, C. J., not participating.