text:
    Sinnie Mae REEVES, Appellant, v. The STATE of Texas, Appellee.
    No. 54672.
    Court of Criminal Appeals of Texas, Panel No. 2.
    June 7, 1978.
    Mike Barclay, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty., John Tatum, Dan Guthrie and Gerry Holden, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for welfare fraud. See Article 695c, § 34(2), V.A.C.S. Punishment of one (1) year’s imprisonment was assessed by the jury.

The record reflects that appellant was convicted of fraudulently representing on welfare application forms that she was then unemployed, when in fact she was employed as a housekeeper for the Marriott Corporation. Although appellant had applied for both Aid to Families with Dependent Children (AFDC), as well as food stamps, her conviction appears to be based on the AFDC applications.

In her first ground of error, appellant argues that the statute under which she was convicted, Article 695c, § 34, supra, violates due process of law by failing to provide notice of what conduct constitutes a criminal offense. The statute reads in pertinent part:

“Sec. 34. Whoever obtains, or attempts to obtain, or aids or abets any person to obtain, by means of a wilfully false statement or representation or by impersonation, or by other fraudulent means:
“(1) Assistance, services, or treatment to which he is not entitled;
“(2) Assistance, services, or treatment greater than that to which he is justly entitled;
“(3) Or, with intent to defraud, aids or abets in buying, or in any way disposing of the property of a recipient of assistance without the consent of the State Department, or whoever violates Section 32 or Section 33 of this Act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined any sum not more than One Hundred Dollars ($100) or be imprisoned for not less than six (6) months, nor more than two (2) years, or be both so fined and imprisoned.”

Appellant argues that the statute is unconstitutionally vague and ambiguous in two respects: (1) the statute as written allegedly requires reference to other regulatory material in order to define the amount of aid to which an applicant is entitled; and (2) the phrase “justly entitled” is inherently unclear and is not defined in the statute. Appellant contends that she was not prohibited by the statute from being employed for gain while receiving assistance, rather, it is only when her income exceeds some unspecified level, which she claims is not subject to easy computation, that the activity becomes criminal because the benefits are greater than those to which she is “justly entitled.”

As we stated in Ex parte Granviel, 561 S.W.2d 503 (Tex.Cr.App.1978):

“Whenever an attack upon the constitutionality of a statute is presented for determination, we commence with the presumption that such statute is valid and that the Legislature had not acted unreasonably or arbitrarily in enacting the statute. See Ex parte Smith, 441 S.W.2d 544 (Tex.Cr.App.1969); Smith v. Davis, 426 S.W.2d 827 (Tex.Sup.Ct.1968) . The burden rests upon the individual who challenges the act to establish its unconstitutionality. Robinson v. Hill, 507 S.W.2d 521 (Tex.Sup.Ct.1974), and if a statute is capable of two constructions, one of which sustains its validity, the courts will give to it the interpretation that sustains its validity. Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Newsom v. State, 372 S.W.2d 681 (Tex.Cr.App.1963); Baldridge v. State, 167 Tex.Cr.R. 519, 321 S.W.2d 309 (1959); Lockhart v. State, 150 Tex.Cr.R. 230, 200 S.W.2d 164 (1947). See also State v. Shoppers World, Inc., 380 S.W.2d 107 (Tex.Sup.Ct.1964); Alobaidi v. State, 433 S.W.2d 440 (Tex.Cr.App.1968), cert. den. 393 U.S. 943, 89 S.Ct. 313, 21 L.Ed.2d 281 (1968).”

Appellant’s analysis of the statute ignores the basic nature of the offense proscribed. The behavior prohibited is fraud: the use by a person of a wilfully false statement, representation, impersonation or other fraudulent means to procure welfare aid. Of course, the State is required to prove as an element of the offense that the aid obtained was greater than that to which an accused was “justly entitled.” However, proof of this issue logically depends on the initial fraud; only after it is determined that a falsehood has been used can it then be determined that an applicant is receiving benefits greater than those to which he or she is entitled. Proof of this latter issue may involve a wide range of factors, different for each welfare applicant. A comprehensive listing of such factors in the statute would be burdensome, if not impossible, and would offer no further notice to an accused of the type of fraudulent act he or she has allegedly committed. Due process requirements of specificity in a criminal statute are based on the need for adequate notice of what behavior is prohibited. The Constitution does not require impossible standards; all that is required is that the language conveys a sufficient warning as to the proscribed conduct when measured by common understanding and practices. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1946).

Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), relied on by appellant, is distinguishable. Unlike the Oklahoma statute in Connally, Article 695c, § 34, supra, does not pose ex post facto problems; nor is the Texas statute based on an unknown or open-ended standard as the Oklahoma statute was. The core of the Texas statute is its prohibition against an applicant’s use of fraudulent means to obtain welfare benefits. We find that Article 695c gives sufficient notice of the offense of fraud. Appellant has failed to sustain her burden of proving Article 695c, § 34, unconstitutional. Her first ground of error is overruled.

Appellant next claims that the information by which she was charged was defective, as it failed to apprise her of either the amount of assistance or the type of benefits she obtained. She also complains that no elements of theft were alleged in the information. The information in part read:

“ . . . one SINNIE MAE REEVES hereinafter styled Defendant, heretofore, on or about the 23rd day of AUGUST A.D., 1974 in the County of Dallas and State of Texas, did unlawfully knowingly and intentionally attempt to obtain and obtain (sic) assistance, services and treatment from the Texas State Department of Public Welfare, namely: Aid to Families with Dependent Children,’ in an amount to which the said defendant was not entitled and in an amount greater than that to which defendant was otherwise justly entitled by means of a wil-fully false statement, representation, impersonation, and other fraudulent means, namely: said defendant falsely stated and represented to the Texas State Department of Public Welfare that she was unemployed when in truth and in fact said defendant was employed by Marriott Corporation . . . .”

Both of appellant’s contentions are without merit. The information was sufficient to put appellant on notice of the crime charged, and as discussed above in reference to appellant’s first ground of error, the offense was fraud, not theft. Not only did the information charge the offense in the language of the statute, it also specified the nature of the fraudulent representation. See Baldwin v. State, 538 S.W.2d 109 (Tex.Cr.App.1976); American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). Any allegation of the amount or type of aid obtained would have been sur-plusage. Appellant’s second ground of error is overruled.

In her third ground of error, appellant contends that the trial court erred in failing to grant appellant’s motion for an instructed verdict because the State allegedly failed to honor the discovery provisions of Article 39.14, V.A.C.C.P., by providing appellant before trial with an opportunity to inspect employment records from the Dallas North Marriott Inn. At the time of trial, the State called James Thornton, Personnel Director of the Dallas North Marriott Inn, to establish appellant’s employment history. Thornton brought with him personnel records of appellant’s employment with the Marriott Corporation. Appellant objected on the grounds that these business records were possessed by the State before trial, and that the State had deliberately withheld them, contrary to the court’s order granting appellant’s pretrial motion for discovery. Dan Guthrie, Assistant District Attorney, testified that these employment records were not in the State’s possession until the time of trial, and that he did not have personal knowledge that Thornton would bring the records until Thornton actually appeared at trial with them. Further, Guthrie stated that he did not at the time anticipate introducing these records into evidence.

Appellant’s lengthy and extensive motion for discovery requested only those papers, reports, business records, etc. which were in the custody or possession of the State or its agencies. Appellant has failed to demonstrate on appeal that these records were in fact possessed by the State at any time before Thornton appeared for trial. Consequently we find no violation of Article 39.14, supra. See Smith v. State, 547 S.W.2d 6 (Tex.Cr.App.1977).

In her fourth through sixth grounds of error, appellant complains of the following:

(4) That the trial court erred in admitting business records of appellant’s payroll checks from the Marriott Inn because the State allegedly failed to lay a proper predicate;
(5) That the trial court erred in failing to sustain appellant’s objection to testimony by a Welfare Department investigator to the effect that while questioning appellant in her home, appellant had shown the witness some paycheck stubs; appellant objected that the paycheck stubs were hearsay, since the witness did not have them with her when she testified and the stubs were never introduced into evidence;
(6) That the State failed to present a prima facie case because the State’s witness who testified as to the amounts by which the Welfare Department overpaid appellant was not qualified to testify concerning such amounts.

We need not reach the merits of these contentions. During the punishment phase of the trial, appellant took the stand and unequivocally admitted that she was employed at the time she signed the initial AFDC applications and during the period in which she received this welfare assistance. Appellant’s judicial confession thus renders moot these last three issues. The error, if any, in the admission of the alleged hearsay matters, has been waived since appellant testified in substance to the matter complained of. Likewise, no issue as to the welfare investigator’s qualifications or the sufficiency of the evidence to sustain the conviction has been preserved. See Dugger v. State, 543 S.W.2d 374 (Tex.Cr.App.1976). Even if the matters complained of could be found to require a reversal, the appellant testified that she was guilty and her testimony could be introduced in the event of another trial. Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971); Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975). Appellant’s fourth through sixth grounds of error are overruled.

The judgment is affirmed.

      . Margaret Gharis, a budget investigator with the Texas Department of Public Welfare, testified that her job at the time of trial was to determine what benefits applicants are eligible to receive under AFDC. She stated that she determined the amount of eligibility by beginning with the applicant’s gross monthly income. From this amount, certain deductions are then made to reflect benefits recognized by the Department of Welfare. This remaining balance, called an “AFDC net income,” is then applied toward the subsistence needs of the particular applicant. Obviously the dollar amount of these needs will vary, depending on the number of children the applicant has, their health, the monthly cost of their support and whether the applicant or spouse, if any, is working.


source: Caselaw Access Project

author: PHILLIPS, Judge.

license: Public Domain

text:
    Kenneth Lee McFAIL, Appellant, v. The STATE of Texas, Appellee.
    No. 54708.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from an order revoking probation wherein appellant stands convicted of burglary of a vehicle. Punishment was assessed at three years confinement in the Department of Corrections.

The record as filed in this Court on April 4,1977, contains a transcription of the court reporter’s notes; however, no brief was filed in the trial court in appellant’s behalf as is required by Article 40.09, Sec. 9, Vernon’s Ann.C.C.P. On April 18, 1977, appellant’s retained counsel filed a “motion to abate appeal” in this Court. The motion requests an abatement of the appeal because, although appellant’s counsel was notified of the completion of the record in the cause, appellant’s attorney was never notified of whether or not the trial court had approved the record in the case. Appellant urges that the failure to notify him of the approval of the record fails to comply with Article 40.09 of the Code of Criminal Procedure.

On June 27,1977, the State responded to appellant’s motion to abate the appeal which had not been provided the State but had merely been filed with this Court. The State urges that Article 40.09, Sec. 7, Vernon’s Ann.C.C.P., requires that notice of the completion of the record shall be made by the clerk by certified mail to the parties or their respective counsel, but nowhere does Article 40.09, supra, state that appellant is to be given notice by the trial court that the record has been approved. We agree.

The record clearly reflects that notice of completion of the record in this cause was mailed by certified mail to appellant’s counsel on January 27, 1976. No objections to the record were filed by either party, and the record was approved on February 17, 1977. The question before us, therefore, is whether Article 40.09, supra, requires that appellant be given notice of approval of the record by the trial court, in addition to notification of completion of the record in the cause.

Article 40.09, Sec. 7, Vernon’s Ann.C.C.P., as amended, provides in part:

“Notice of completion of the record shall be made by the clerk by certified mail to the parties or their respective counsel.

Under this section, counsel has 15 days after the mailing of the notice of the completion of the record to make objections to the record. The statute also provides that if there are objections to the record, or if the court fails to approve the record within five days after the expiration of the 15-day period, the court shall set the matter down for hearing, and shall enter such orders as may be appropriate to cause the record to speak the truth. See Heiliger v. State, 471 S.W.2d 411 (Tex.Cr.App.1971). We are presented neither with the situation where notice of completion of the record was not mailed to appellant or his attorney nor a situation where proper approval of the record by the trial court was not made. Cf. Gomez v. State, 471 S.W.2d 393 (Tex.Cr.App.1971); Heiliger v. State, supra. Neither are we presented with the situation where appellant’s counsel was not provided sufficient time in which to file objections to the record. See Martinez v. State, 488 S.W.2d 77 (Tex.Cr.App.1972). As previously outlined, notice of completion was properly mailed on January 27, 1976, and the record was approved after the expiration of 15 days after the mailing of such notice as required by the statute.

Article 40.09, Sec. 9, Vernon’s Ann. C.C.P., provides that the defendant shall have 30 days after approval of the record by the trial court in order to file a brief. Any extensions of time for meeting the limits prescribed in Sec. 9 may be granted only by the Court of Criminal Appeals or a judge of the Court for good cause shown on timely application to the Court of Criminal Appeals. See Sec. 16, Art. 40.09, Vernon’s Ann.C.C.P.

In the instant case, appellant has failed to file a brief. It appears to be appellant’s complaint that since he was not notified of the approval of the record, it was impossible to file a brief in a timely fashion. We disagree. The procedure requested by appellant is not mandated by the Code of Criminal Procedure, and the procedure outlined in Sec. 7 provides appellant and the State with notice that the record is complete and imposes a burden on both parties to review the record in order to determine whether any objection to the record is necessary in order that the record might speak the truth. In this case, appellant failed to offer any objections to the record upon notification by the clerk. Appellant, therefore, should have been aware that the record would be approved within the time period allowed by the statute unless objection to the record was made or a hearing was set by the trial court in order to cause the record to speak the truth.

Appellant must be notified of notice of completion of the record, but the only requirement mandated by statute upon approval of the record by the trial court is that the record shall be filed with the clerk of the trial court. See Sec. 8, Art. 40.09, Vernon’s Ann.C.C.P.

While it may be a better practice for the court or clerk to inform appellant or his counsel upon approval of the record, as is commonly done in many counties throughout the State, we conclude that the failure of the court or the clerk to so notify appellant’s counsel in this case is not error.

No question of indigency is raised. We have examined the record and find nothing contained therein which should be considered as unassigned error in the interest of justice under Article 40.09, Sec. 13, Vernon’s Ann.C.C.P. Nothing is presented for review. Appellant’s motion to abate the appeal is denied.

The judgment is affirmed.


author: TOM G. DAVIS, Judge.

text:
    Ivory Joe GLOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 54943.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 7, 1978.
    W. John Allison, Jr., Dallas, for appellant on appeal only.
    Henry Wade, Dist. Atty., Ronald D. Hinds, Robert E. Whaley, Asst. Dist. Attys., Dallas, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for unauthorized use of a motor vehicle. The jury having found the paragraphs in the indictment alleging two prior convictions for enhancement to be true, the punishment was assessed at life.

At the outset, appellant contends that the evidence is insufficient to sustain the conviction.

Arthur Rylander discovered about 4:00 a. m. on June 8, 1976, that his 1963 Chevrolet Impala had been stolen from in front of his home at 3802 Kingbridge in Dallas. Rylan-der reported the theft to the police and about 1:30 p. m. on the same day he was notified that he could pick up his car at the “police pound.” The left vent window on the driver’s side had been “pulled out,” there were pry marks on the windshield, wires under the dash were hanging down, the glove box had been opened, and there were pry marks around it, and the “on and off switch” had been twisted where “it would start without a key ... or with any key that happened to be put in there.” Rylander stated that he had not given appellant permission to take his car.

Officers arrested appellant on a street in downtown Dallas about 4:50 a. m. on the day in question. Appellant was driving Ry-lander’s vehicle the wrong direction on a one-way street. Arresting officers Abney and Shields noted the pry marks, the vent window pulled out, and the wires hanging down under the dash. A key was discovered in the ignition on a key ring with other keys, none of which belonged to the vehicle. Abney testified that in his opinion the ignition lock had been broken to permit starting the vehicle without a key. The officers related that appellant told them he had borrowed the car to go to the bus station to pick up his auntie. Appellant later stated he was making the trip to the bus station to pick up his nephew. Registration papers found in the glove box reflected that a Linda Carol Stout was the owner of the vehicle. Stout was contacted and she advised officers that the vehicle had been sold to Rylander.

Appellant testified in his own behalf and related that he had borrowed the car a short time before his arrest from a person named Robert to go to the Greyhound Bus Station to pick up his nephew, who was coming in from Longview.

After appellant rested, the State called Bob Clayton, manager for Greyhound Bus in Dallas, who testified that Greyhound did not have any buses operating between Longview and Dallas, the franchise for this route belonging to another bus company.

In Shaw v. State, Tex.Cr.App., 529 S.W.2d 75, the evidence was held sufficient to support a conviction for unauthorized use of a motor vehicle where circumstances were similar to the instant case. There, the defendant was stopped for a traffic violation. The vehicle was determined to have been stolen a short time before, as in the instant case. Appellant points to the fact that there was flight by the defendant in Shaw and that this element was not present in the instant case. While it is true that there was no flight in the instant case, the evidence reveals that inconsistent statements were made by appellant about whom he was going to pick up at the bus station, that no buses were arriving from Longview at the Greyhound Bus Station as related by appellant, and that it was apparent that the ignition system had been tampered with and there was a key in the ignition not designed for the car for the apparent purpose of negating any irregularity.

In urging that the evidence is insufficient, appellant further argues that the State offered the exculpatory statements of the appellant about borrowing the car and that the State failed to refute the same.

The rule is that when the State introduces an exculpatory statement or confession of a defendant, it is then bound to disprove it and failure to do so is grounds for acquittal. Grady v. State, Tex.Cr.App., 466 S.W.2d 770. This rule does not apply where the accused testifies before the jury in accordance with such exculpatory statement and his defensive theory is fairly submitted to the jury. Bonner v. State, Tex.Cr.App., 426 S.W.2d 869. As heretofore noted, appellant testified in accordance with the exculpatory statement, stating that he had borrowed the car in question. The court fairly submitted this defensive theory to the jury, the court instructing the jury as follows:

“You are instructed that it is a defense to prosecution that the defendant through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
“So if you find from the evidence that at the time Ivory Joe Glover took possession of the automobile he, through mistake, acted under a reasonable belief that he was borrowing it from the lawful owner with the lawful owner’s consent or if you have a reasonable doubt about this you will say by your verdict ‘not guilty.’ ”

We find the evidence sufficient to support the conviction.

Appellant contends that the court erred in overruling his objection to the court’s charge for failure to charge on the law of circumstantial evidence and in failing to grant his requested instruction on this principle of law.

V.T.C.A. Penal Code, Sec. 31.07(a), “Unauthorized Use of a Vehicle,” under which this prosecution is brought, provides:

“A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.”

There was direct evidence introduced to prove that the vehicle was motor-propelled, that it was operated by the appellant, and that the appellant did not have the effective consent of the owner.

When the intent of the accused is the only element not proven by direct evidence, a charge on circumstantial evidence is not necessary. Green v. State, Tex.Cr.App., 538 S.W.2d 769; Bowles v. State, Tex.Cr.App., 550 S.W.2d 84; Davis v. State, Tex.Cr.App., 516 S.W.2d 157; Shippy v. State, Tex.Cr.App., 556 S.W.2d 246.

The culpable mental state of appellant being the only element of the offense not proved by direct evidence, the court did not err in failing to charge on the law of circumstantial evidence.

Appellant’s remaining contentions relate to his argument that the State failed to rebut appellant’s testimony that he was not represented by counsel at the prior convictions relied on for enhancement.

Appellant concedes that the judgment and sentence recite that appellant was represented by counsel in the prior causes and that other papers therein are signed by counsel.

Appellant’s testimony that he was not represented by an attorney, standing alone, is insufficient to disprove the recitations in the judgment. White v. State, Tex.Cr.App., 517 S.W.2d 543; West v. State, Tex.Cr.App., 511 S.W.2d 502.

We have reviewed appellant’s pro se brief and find no merit to contentions advanced therein.

The judgment is affirmed.


text:
    Frank SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 57168.
    Court of Criminal Appeals of Texas, Panel No. 3.
    June 7, 1978.

      Edith Roberts, Austin, for appellant.
    Jim D. Vollers, State’s Atty., Austin, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

TOM G. DAVIS, Judge.

This is an appeal from a final judgment forfeiting an appearance bond. By per cu-riam opinion dated February 15, 1978, this appeal was dismissed because it appeared that neither party had filed a brief. On motion for rehearing the appellant demonstrated that a brief had in fact been filed, although under an erroneous cause number. The appeal was therefore reinstated and is now before us on the merits.

The appellant was surety on an appearance bond for James Ray Park in the amount of $1,500. A judgment nisi was entered in the 147th District Court of Travis County. A final judgment was entered against James Ray Park as principal and Frank Smith as surety.

Since the appellee has not filed a brief in this Court, we may accept as true any statements in appellant’s brief as to the facts or the record. Texas Rule of Civil Procedure 419, Art. 44.44, V.A.C.C.P.; Smith v. State, 561 S.W.2d 501; Smith v. State, 561 S.W.2d 502. Having carefully reviewed appellant’s brief, we find that he has alleged no facts which entitle him to a reversal of the judgment.

Appellant initially contends that the bond is void and unenforceable because the principal failed to write thereon his address.

Although Art. 17.08, Sec. 4, V.A.C. C.P., provides that both the principal and surety “shall write thereon his mailing address,” this Court has repeatedly held that the absence of the principal’s address will not exonerate the surety or the principal from liability under the bond. Bowen v. State, 413 S.W.2d 915; Hodges v. State, 489 S.W.2d 916; Swaim v. State, 498 S.W.2d 188. We find the bond which was the basis of the instant forfeiture to be valid even though it appears the principal’s address has been omitted.

Appellant next contends that the trial court erred in entering final judgment forfeiting the bond because the principal was in custody at the time of the final hearing on the bond forfeiture. This contention is without merit. Article 22.13, Sec. 3, V.A.C.C.P., provides for exoneration due to the following circumstances:

“the sickness of the principal or some uncontrollable circumstance which prevented his appearance at court, and it must, in every such case, be shown that his failure to appear arose from no fault on his part. The causes mentioned in this subdivision shall not be deemed sufficient to exonerate the principal and his sureties, if any, unless such principal appear before final judgment on the bond to answer the accusation against him, or shows sufficient cause for not so appearing.”

Accepting as true appellant’s allegation that the principal was in custody at the time of the final hearing, we find that the appellant has not alleged facts which show that the principal’s failure to appear in court at the time the bond was forfeited was due to “some uncontrollable circumstance.” See Fernandez v. State, 516 S.W.2d 677.

Appellant lastly contends that the trial court erred in entering a final judgment forfeiting the appearance bond against him because the principal was never served with citation.

Article 22.05, Y.A.C.C.P., provides that the sureties “shall be entitled to notice by service of citation . . . .” This Article also provides, “it shall not be necessary to give notice to the defendant unless he has furnished his address on the bond, in which event notice to the defendant shall be deposited in United States mail directed to the defendant at the address shown on the bond.” Formal service of citation on the principal is clearly not required nor contemplated by Art. 22.05. Likewise, Art. 22.03, V.A.C.C.P., provides that upon entry of the judgment nisi, “citation shall issue forthwith notifying the sureties of the defendant . .” Appellant’s contention that the final judgment forfeiting the bond was erroneous because of the failure to serve the principal is without merit. Hollins v. State, 427 S.W.2d 865; Johnson v. State, 172 Tex.Cr.R. 624, 361 S.W.2d 574.

The judgment is affirmed.


author: W. C. DAVIS, Judge.

text:
    Willie Charles PEOPLES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 57599-57601.
    Court of Criminal Appeals of Texas, Panel No. 1.
    June 7, 1978.
    Robert S. Liddle, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton and Michael R. Gillett, Asst. Dist. Attys., Dallas, for the State.
    Before TOM G. DAVIS, DALLY and W. C. DAVIS, JJ.
   OPINION

W. C. DAVIS, Judge.

These are appeals from orders revoking probation. On September 17, 1976, the appellant pled guilty to the offenses of theft, V.T.C.A., Penal Code, Section 31.03(dX4)(A), Cause # F-76-4084-P; burglary of a vehi-ele, V.T.C.A., Penal Code, Section 30.04, Cause # F-76-6629-QP; and unauthorized use of a vehicle, V.T.C.A., Penal Code, Section 31.07, Cause # F-76-6630-QP. The trial court sentenced him to imprisonment in the Texas Department of Corrections for seven years in each case, but imposition of sentence was suspended and appellant was placed on probation. A motion to revoke probation was filed in each case on December 9, 1976, alleging that the appellant had violated his probation by committing the offense of criminal trespass, V.T.C.A., Penal Code, Section 30.05, on or about October 1, 1976. He pled true to the allegation on December 22, 1976, and the trial court revoked his probation but reduced his sentence in each case to four years imprisonment.

In Cause # F-76-4084-P, the theft conviction, the appellant contends that the original indictment is fundamentally defective because it does not allege any value of the stolen property. Such a contention was sustained as fundamental error in Standley v. State, 517 S.W.2d 538 (Tex.Cr.App.1975), wherein we quoted 30 Tex.Jur.2d, Indictment and Information, Section 38, pg. 604:

“An indictment or information should allege every fact which may affect the degree or kind of punishment. A prior conviction must be alleged where a higher penalty is sought by reason of such conviction; the value of property must be stated where it is made the basis of punishment ; and the injury done to the owner of property must be averred where the amount of injury is an essential element in the punishment.” (Emphasis supplied)

“When a conviction has been obtained under a fundamentally defective indictment, the judgment of conviction is subject to collateral attack and may be set aside on the appeal from the order revoking probation.” Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977); and Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976).

Accordingly, the order revoking probation in Cause # F-76 — 4084-P and the original judgment are reversed and the indictment is ordered dismissed.

In Cause Nos. F-76-6629-QP and F-76-6630-QP, the appellant argues that, “The motion to revoke probation is fundamentally defective in that it fails to allege all the requisite elements of the offense charged.”

The offense charged as a violation of appellant’s probation was criminal trespass. The complained-of language follows:

“On or about the first day of October, 1976, in Dallas County, Texas, William Charles Peoples did then and there intentionally, knowingly, and unlawfully enter a building of Bill Johnson without the effective consent of same Bill Johnson and the said (appellant) did then and there have notice not to enter said premises, . . . ”

The manner of notice, stated in the allegation, was withdrawn orally by the State prior to the court’s acceptance of appellant’s plea of true to each motion to revoke in each case. Subsequent to the State’s motion, the record reflects:

“COURT: All right, you have talked with the counsel for the State concerning this, have you not?
“DEFENSE ATTORNEY (Mr. Liddle): Yes, Your Honor. We have no objection to the State’s motion.
“COURT: All right, the language in each of the motions to revoke probation reading ‘ . . ” is struck .
All right. Now then, with this part of the allegation struck do you still enter your plea of true and ask me to accept your plea of true in each case?
“DEFENDANT: Yes, sir.
“COURT: All right. And do you recommend it also, counsel, that I accept his plea of true.
“MR. LIDDLE: Yes, Your Honor, I do.
“COURT: All right. Your plea of true is accepted in each case, the court finding that it was made freely and voluntarily, knowingly and intentionally . . ”

Counsel at trial, now counsel on appeal, in supporting his contention, states:

“It will be noted that the State in its original motion to revoke probation alleged specific notice, however, prior to the appellant’s plea of true, the State by oral amendment deleted the language specifically setting out the type of notice allegedly communicated to the appellant. As such, the charging instrument at the time the plea was entered stated no offense under the Penal Code and therefore failed to support the State’s motion to revoke probation.”

The pleadings of a motion to revoke probation need not meet the requirements of an indictment. It is enough that the pleadings give the defendant fair notice of the allegations against him so that he may prepare a defense. Grantham v. State, 547 S.W.2d 286 (Tex.Cr.App.1977). We hold that the appellant was fairly apprised of the offense charged as a violation of his probation. He signed a plea of true and stipulation of evidence prior to the hearing and, after proper admonishment by the trial court, persisted in pleading true in open court. He made no complaint either at the hearing or prior thereto, and cannot, now, be heard to complain for the first time on appeal.

The orders revoking probation and judgments in Cause Nos. F-76-6629-QP and F-76-6630-QP are affirmed. The order revoking probation in Cause No. F-76-4084-P and the original judgment are reversed and the indictment is dismissed.


author: ODEN, Justice.

text:
    Joe P. FARINA, Appellant, v. CALVARY HILL CEMETERY, a Texas non-profit Corporation, Appellee.
    No. 8522.
    Court of Civil Appeals of Texas, Texarkana.
    March 21, 1978.
    Rehearing Denied April 25, 1978.

      Richard L. Jackson, Shuford, Jackson & Miller, Dallas, for appellant.
    Robert H. Mow, Jr., Barbara M. G. Lynn, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellee.
   ODEN, Justice.

Joe P. Farina, appellant, sued Calvary Hill Cemetery, appellee, to rescind a real estate transaction and for damages. Calvary Hill Cemetery counterclaimed for recovery on a purchase money note and damages. The trial court, after disregarding certain jury findings, entered judgment for Calvary Hill Cemetery on the purchase money note in the amount of $136,657.47 and denied the parties’ respective claims for rescission and damages. Joe P. Farina appealed from that portion of the judgment denying rescission which, if granted, would have been a bar to the claim on the purchase money note. Calvary Hill Cemetery lodged a cross-appeal complaining of the trial court’s refusal to grant it judgment for damages in the amount of $1,081,038.00. The parties will be referred to as Farina and Calvary Hill.

In July, 1971, Calvary Hill owned certain property upon which a 302 unit apartment complex was located. Metropolitan Life Insurance Company was the beneficiary of a deed of trust lien on the property and improvements securing a $3,650,000.00 note. Calvary Hill had no personal liability on the note inasmuch as Metropolitan Life Insurance Company had waived its right to seek a deficiency judgment in the event the proceeds derived from a foreclosure sale were insufficient to discharge the note. In September, 1971, Farina purchased the buildings and improvements and entered into a forty-eight year ground lease on the land. The effective date of the transfer was August 15, 1971. The monetary consideration for the transfer was $50,000.00 cash, a $100,000.00 purchase money note, an agreement to make $50,000.00 in improvements, an agreement to pay ground rentals and the agreement by Farina to pay the balance owing on the $3,650,000.00 note held by Metropolitan Life Insurance Company. The real estate transaction was consummated by Calvary Hill executing a bill of sale to the buildings and improvements and a ground lease. Farina executed a note, security agreement, deed of trust and the ground lease. On November 3,1971, Calvary Hill, at Farina’s request, released, in writing, Farina from any personal liability to pay ground rentals under the ground lease. Farina defaulted in the payment of the Metropolitan Life Insurance Company note. Calvary Hill elected not to cure the default and the land and improvements located thereon were sold on September 3, 1974, at a substitute trustee’s sale. Farina was in possession of the apartment complex between August, 1971, and August, 1974.

Farina contends the real estate transaction consummated in September, 1971, should be rescinded because of a fraud perpetrated by agents of Calvary Hill. He alleges that his oral agreement with Calvary Hill was that he would have no personal liability as a result of the real estate transaction except for the payment of the $100,-000.00 purchase money note and the making of $50,000.00 in improvements. The contract documents, except for the one releasing Farina from personal liability for the payment of ground rentals under the ground lease, contained no provision to that effect. Farina testified that he did not read the contract documents and that he relied upon Calvary Hill’s integrity to make certain that the contract documents reflected the terms of the oral agreement. The jury found that (1) agents for Calvary Hill represented to Farina that the contract documents would contain a provision for no personal liability; (2) Farina relied upon such representation in entering into the real estate transaction; (3) the agents for Calvary Hill had no intention of complying with their representation; (4) Farina would have refused to execute the contract documents had he not relied on such representation; and (5) such representation was made to induce Farina to execute the contract documents. These findings were disregarded by the trial court and Farina’s claim for rescission denied. The law presumes that a written agreement correctly embodies the parties’ intentions, and is an accurate expression of the agreement the parties reached in prior oral negotiations. Estes v. Republic National Bank of Dallas, 462 S.W.2d 273 (Tex.1970). A party in an arms-length transaction is charged with the obligation of reading what he signs and, in the absence of a showing of trickery or artifice, he cannot avoid the consequences of the instruments he signs on the ground that he did not know what he was signing. Thigpen v. Locke, 363 S.W.2d 247 (Tex.1962); Indemnity Insurance Co. of North America v. W. L. Macatee & Sons, 129 Tex. 166, 101 S.W.2d 553 (1937). Farina and Calvary Hill were dealing at arms-length. The fact that Farina is a Catholic and Calvary Hill is owned by the Roman Catholic Diocese of Dallas did not of itself create such a confidential relationship as to relieve Farina from his duty to read the contract documents. Thigpen v. Locke, supra. There is no evidence of active trickery or deceit in the record. In fact, Farina’s attorney was furnished a copy of the contract documents well in advance of the date the transaction was consummated. The trial court did not err in disregarding the findings of the jury pertaining to fraud and entering judgment denying Farina’s claim for rescission.

Calvary Hill contends the trial court erred in refusing to enter judgment in its favor against Farina for $1,081,038.00, which was the reasonable cash market value of the raw land at the time of foreclosure by the substitute trustee under the deed of trust securing the $3,650,000.00 note held by Metropolitan Life Insurance Company. Calvary Hill’s contention does not take into account that the estate it lost as a result of the foreclosure was the reversion-ary interest it held as landlord under the ground lease as opposed to fee simple ownership of the land free of improvements and debts. Title to the buildings and improvements would revert to Calvary Hill at the expiration of the ground lease. Calvary Hill has a cause of action against Farina for breach of the contract of assumption. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158 (1943). In cases where the breach of a contract of assumption results in foreclosure, the measure of damages, in the absence of a reasonable contractual method of ascertaining damages to the contrary, is the value of the estate which was lost by foreclosure at the time of foreclosure. Talley v. Howsley, supra. Calvary Hill as landlord under the ground lease held a reversionary interest in the land and improvements located thereon. Big Lake Oil Company v. Reagan County, 217 S.W.2d 171 (Tex.Civ.App. El Paso 1948, writ ref’d). The value of the reversionary interest lost through foreclosure in this case is the difference between the reasonable cash market value of the land and improvements located thereon and the unpaid balance of the note held by Metropolitan Life Insurance Company at the time of foreclosure. By using this method for ascertaining damages, Calvary Hill will be reimbursed for what it actually lost, to-wit, its equity in the ground leased property. Farina had been released from personal liability for the payment of ground rentals. Calvary Hill neither volunteered, nor was it obligated, to make any payments on the Metropolitan Life Insurance Company note. The value of the buildings and improvements, though owned by Farina, should be taken into account in determining the value of the property because the buildings and improvements constitute a part of the reversionary estate. The unpaid balance on the note to Metropolitan Life Insurance Company should be taken into account because the property was encumbered by the deed of trust lien at the time the reversionary estate was created.

The portions of the judgment of the trial court denying all relief prayed for by Farina and awarding Calvary Hill $136,657.47 as recovery on the purchase money note are affirmed. The portion of the judgment denying Calvary Hill recovery on its claim for breach of contract of assumption is reversed and remanded for a new trial.


author: COLEMAN, Chief Justice.

text:
    The KROGER COMPANY, Appellant, v. Lula DEMAKES, Appellee.
    No. 17046.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 18, 1978.
    Rehearing Denied June 1, 1978.

      Wyckoff, Russell, Dunn & Frazier, Houston, Strasburger & Price, Royal H. Brin, Jr., Dallas, for appellant.
    Law Offices of Burks & Brush, Kirk L. Brush, Raymond S. Rutherford, Houston, for appellee.
   COLEMAN, Chief Justice.

This is a false imprisonment case. The defendant appeals from a judgment entered for the plaintiff based on a jury verdict.

While at a check-out counter at Kroger’s Grocery Store, Mrs. Lula Demakes picked up a package of cigarettes from a rack in front of the checker’s stand. She held the cigarettes in her hand while writing a check to pay for her groceries. A security guard standing at the end of the counter saw her take the cigarettes and concluded that she had not paid for them. When she left the store with the cigarettes the security guard stopped her and requested that she accompany him back inside the store. He then took her to an office on the lower level of the building where she was detained for questioning. The police were called and she was charged with shoplifting. She was arrested and booked into jail.

The trial court determined that the elements of a cause of action for a false imprisonment were established as a matter of law and submitted to the jury issues on damages and issues presenting certain defenses raised by the pleadings. The trial court entered a judgment in favor of the plaintiff in the sum of $50,000.00 actual damages and $50,000.00 exemplary damages. After hearing the motion for new trial the court ordered a remittitur in the sum of $25,000.00 from the exemplary damage award. The plaintiff filed the required remittitur.

In its first point of error the defendant asserts that the trial court erred in entering a judgment for the plaintiff because no issues were submitted to the jury to establish a basis for recovery.

Certain formal admissions of fact were introduced into evidence. The defendant admitted that Mrs. Demakes was detained at its store while an investigation was being made; that the employee detaining Mrs. Demakes was employed for the purpose of store security by the defendant; that Mrs. Demakes was turned over to the police by Kroger personnel; that the manager or person in charge of the store at the time in question knew that Mrs. Demakes was being detained and turned Mrs. Demakes over to the police; and that the manager or person in charge of the store at that time approved the detaining of Mrs. Demakes and the act of turning her over to the police.

The plaintiff has failed to establish as a matter of law that she was detained without authority of law. In answer to Special Issue No. 1, the jury failed to find that the defendant’s agents, servants or employees had reasonable grounds to believe that Lula Demakes had wrongfully taken or had wrongful possession of merchandise belonging to the defendant. The answer to this issue does not establish that the Kroger employees did not have reasonable grounds to believe she had wrongfully taken merchandise. By this answer the jury merely found that the defendants had failed to establish by a preponderance of the evidence the facts inquired about.

The plaintiff’s testimony would have supported a finding that Kroger’s employees lacked reasonable grounds to believe that Mrs. Demakes had wrongfully taken merchandise from the store. However, her testimony is that of an interested witness and is not so clear, direct, positive and free from inaccuracies and circumstances tending to cast suspicion thereon that it must be accepted. Cochran v. Wool Growers Central Storage Company, 140 Tex. 184, 166 S.W.2d 904 (1942).

False imprisonment in Texas is the direct restraint by one person of the physical liberty of another without adequate legal justification. J.C. Penney Co. v. Duran, 479 S.W.2d 374 (Tex.Civ.App.-San Antonio 1972, writ ref’d n.r.e.); Kroger Company v. Warren, 420 S.W.2d 218 (Tex.Civ.App.-Houston [1st Dist.] 1967, no writ).

Article 1436e § 3 Vernon’s Annotated Penal Code, as it existed at the time of the incident in question, provided that any merchant, his agent or employee, who has reasonable ground to believe that a person has wrongfully taken or has wrongful possession of merchandise, may detain such person in a reasonable manner and for a reasonable length of time for the purpose of investigating the ownership of such merchandise. It provides that such reasonable detention shall not constitute an arrest nor shall it render the merchant liable to the person detained. This article also provides that any person has the right to prevent the consequences of shoplifting by seizing any goods which has been taken under the circumstances constituting shoplifting, and to deliver the goods taken with the “supposed offender” to a peace officer for examination. Such a person, however, must have reasonable grounds to suppose the crime of shoplifting to have been committed.

An essential element of the cause of action for false imprisonment has not been established by the plaintiff. However, the defendant did not preserve his point of error by including it in his motion for new trial. In addition to a motion for a new trial, the defendant filed a motion to set aside the jury’s verdict, a motion to disregard the jury’s findings and a motion for judgment n.o.v. In none of these motions did the defendant present to the trial court its contention that the plaintiff failed to establish a cause of action on which a judgment in her favor could be rendered. There is nothing in the record to indicate that this contention was otherwise presented to or ruled on by the trial court. Under the rules of civil procedure which were in effect at the time this case was tried and the appeal perfected in this court, a ground of error not distinctly set forth in the motion for new trial, in cases where motion for new trial is required, shall be considered as waived. Tex.R.Civ.P. 374. Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); Scroggins v. Roper, 548 S.W.2d 779 (Tex.Civ.App.-Tyler 1977, writ ref’d n.r.e.).

Rule 374 was repealed and Rule 324 was amended by order of the Supreme Court effective January 1, 1978. As amended, Rule 324 provides:

“A motion for new trial shall not be a prerequisite to the right to complain on appeal, in any jury or non-jury case. A motion for new trial may be filed by any party, however, and the omission of a point in such motion shall not preclude the right to make the complaint on appeal. Notwithstanding the foregoing, it shall be necessary to file a motion for new trial in order to present a complaint which has not been otherwise ruled upon.”

Appellant’s first point of error was not preserved for appellate review under Rules 324 and 374 at the time appeal was perfected. The point can not be considered even if Rule 324 as amended is applicable to this appeal. This point is overruled.

The appellant asserts that the trial court erred in entering judgment for the plaintiff because the record establishes as a matter of law the affirmative defense set forth in Section 3, Article 1436e, Texas Penal Code Ann. This was the matter presented to the jury in Special Issues 1 and 2. The jury’s answer to Special Issue No. 1 did not support Kroger’s defense. Special Issue No. 2 was predicated on an affirmative answer to Special Issue No. 1 and was not answered by the jury.

Mrs. Demakes testified that when she reached the check-out counter she took the package of cigarettes from the rack in full view of the check-out clerk and merely held it in her hand while the clerk was checking out the articles which she had purchased. She testified that the check-out clerk saw her take the cigarettes. She testified to the effect that she made no attempt to conceal the cigarettes and supposed that she had paid for them. She also testified that she returned to the store willingly and offered to pay for the cigarettes. This testimony raises the issue of fact submitted to the jury in Special Issue No. 1.

Appellant has not asserted that the trial court erred in predicating Special Issue No. 2 on an affirmative answer to Special Issue No. 1. The evidence raises an issue of fact as to whether Mrs. Demakes was detained in a reasonable manner and for a reasonable length of time “for the purpose of investigating the ownership of such merchandise.”

Appellant’s affirmative defense under Article 1436e was not established as a matter of law and the state of the evidence is such that we cannot say the jury’s answer to Special Issue No. 1 was so contrary to the great weight and preponderance of the evidence as to be clearly wrong.

The trial court did not err in submitting Special Issue No. 3 which asks whether the plaintiff, Lula Demakes, signed a written statement relieving the defendant, Kroger Grocery Stores, from all liability for claims and damages rising out of the occasion in question. Mrs. Demakes admitted that the signature on a printed form was in her handwriting. She testified that the blanks in said instruments were not filled in at the time she signed it. She testified that the instrument was not read to her and that she could not read it at the time she signed it because the security guard had taken her purse containing her glasses. The instrument was offered into evidence for the purpose of showing Mrs. Demakes’ signature “and not for the truth of the contents herein”. The court ruled that it, would be received for the limited purpose “of showing it has the signature of the plaintiff”. There are also on the face of the instrument, statements and comments which apparently constituted a report to management made by the security guard. The action of the trial court in submitting Issues 3 and 4 does not constitute reversible error. The evidence does not establish as a matter of law that Mrs. Demakes knowingly signed the written release of her claim for damages by reason of false imprisonment.

The appellant asserts thát the trial court erred in refusing to submit the defense of oral release. Appellant’s answer included a plea of release. A special issue presenting this defense was submitted to the court and refused by him.

Mrs. Demakes was employed at the Lighthouse for the Blind, as secretary to its chief executive. This person called an attorney who was on the executive board of the organization and requested that he assist Mrs. Demakes in connection with the charge of shoplifting which was scheduled for trial within a few days. When he discovered that the Kroger Grocery Stores was involved he explained that his firm represented Kroger and that he would discuss the matter with the attorney handling that account. This attorney then called Mrs. Demakes and told her that he represented Kroger’s and before he could even talk to her about it, “much less undertake to do anything in her behalf or help her in any way”, he would have to have her assurance that the Kroger Company would be completely released from any . responsibility “from her view in a civil context”. He stated that he told her before he “could even go on and discuss the matter with her, she had to clear the debt for me in view of my representation of the company, tell me that the Kroger Company in her view was not involved in her area of interest at all; and that she was not interested in any money from the Kroger Company”. He stated that she “gave me all of these assurances.” He also stated that she emphasized that the only thing that was of concern to her was having an arrest record at the police station and that “she just had that on her record, and if she could get out of the criminal aspect of it, that is the only thing that concerned her; that she had no intention of suing the Kroger Company for money.”

The lawyer then testified that he talked to attorneys in the District Attorney’s office and told them that Kroger had no desire to follow-up on the charges and that as far as Kroger was concerned they could dismiss the charges. He also testified that an agreement was reached between him and the District Attorney’s office that the charges would be dismissed and that they were dismissed. Later he prepared a proposed release for Mrs. Demakes to sign but it was never executed.

Mrs. Demakes testified that she talked to an attorney for Kroger on Friday before the case was to be called on Monday. She stated that he called her and told her that they were going to dismiss the case but they wanted a release from her. She stated that she told them that it was now too late because she had an attorney and that he would have to call her attorney. She testified that she did not reach agreement with Kroger to release them at any time.

A release executed in consideration of an agreement to seek the dismissal of a pending prosecution is contrary to public policy and unenforceable. Prim v. Farmers’ National Bank of Dublin, 44 S.W.2d 943 (Tex.Com.App.1932, holding approved); Duncan v. Piper, 79 S.W.2d 172 (Tex.Civ.App.-Dallas 1935, no writ); Goodyear Tire & Rubber Company v. Sanford, 540 S.W.2d 478 (Tex.Civ.App.-Houston [14th Dist.] 1976, no writ). The trial court did not err in refusing to submit issues on an oral release to the jury.

The appellant also asserts that the trial court erred in refusing a trial amendment setting up the defense of promissory estop-pel. Appellant properly requested issues submitting this defense.

An estoppel is defensive in character. Its function is to preserve rights and not to bring into being a cause of action. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660 (1949). Before Mrs. Demakes’ promise to release Kroger from any cause of action which she might have for damages can be enforced in equity, the evidence must show that in reliance on the promise Kroger took action “of a definite and substantial character” and that injustice can be avoided only by enforcement of the promise. “Moore” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934 (Tex.1972). Mrs. Demakes should have anticipated that in reliance on her promise Krogers’ attorney would attempt to secure the dismissal of the shoplifting charge pending against her. The attorney was able to and did secure the dismissal of the charge. While this action resulted in a benefit to Mrs. Demakes it was not action of such a substantial character as to result in injustice if the promise should not be enforced. An oral agreement which cannot be enforced because it violates the public policy of this state will not be enforced in equity on the theory of promissory estoppel. The trial court did not err either in refusing to permit the trial amendment or in refusing to submit the requested issues.

The appellant has presented.a point asserting that the amount of actual damages awarded by the jury is excessive and not supported by sufficient evidence of probative force. Particularly questioned is the action of the trial court in submitting to the jury the elements of loss of reputation, loss of earning capacity, value of time lost during detention, and loss of wages in the past. It is not appellant’s position that the matters submitted are not proper elements of damage, rather it contends that there is not sufficient evidence to permit these elements to be submitted to the jury.

Mrs. Demakes was taken by the security guard through the crowded store to the manager’s office, and she was escorted out of the store by the police in view of the shoppers present. In order to get out of jail she felt it necessary to call a former employer and inform him of the charges brought against her. The charges were made known to a number of Kroger employees. The charges filed are a matter of public record. She was required to appear in court and a public announcement was made that the Demakes case was dismissed. Many people were present in the courtroom including at least one acquaintance. The evidence was sufficient to require submission of loss of reputation as an element of damage.

There is evidence that Mrs. De-makes lost wages during the period of time prior to the trial of the case. Mrs. Demakes testified that she was fired from her position with the Lighthouse for the Blind and that she was unable to secure another position for about three weeks. The jury might have believed that the loss of this job resulted from a personality change caused by the incident in question.

Mrs. Demakes testified that she was detained for a period of several hours on Sunday. She was entitled to recover the value of this time. Hays v. Creary, 60 Tex. 445 (1883); Reicheneder v. Skaggs Drag Center, 421 F.2d 307 (5th Circuit 1970).

There is evidence that Mrs. De-makes suffered a personality change immediately after this incident. She had previously been an outgoing gregarious person but after the incident she became depressed and withdrawn. This condition continued up to the time of the trial although she testified she felt she was improving. She had changed jobs several times during the period prior to the trial. She was an experienced executive secretary and was able to obtain work at the same or a higher salary. She lost time from work because of emotional and physical illness, but because she was on straight salary she did not lose any wages. The jury was entitled to conclude that her depressed mental condition resulted in some loss of earning capacity. Mikell v. La Beth, 344 S.W.2d 702 (Tex.Civ.App.-Houston 1961, writ ref’d n.r.e.); City of Houston v. Holden, 336 S.W.2d 193 (Tex.Civ.App.-Eastland 1960, writ ref’d n.r.e.). The trial court did not err in submitting these elements of damage to the jury.

There is considerable evidence concerning the mental anguish and humiliation suffered by Mrs. Demakes. All of these elements of damage were considered by the jury and it returned a lump sum verdict in the sum of $50,000.00. We do not consider the verdict excessive.

The jury also found that the Kroger Grocery Stores acted “recklessly or willfully and maliciously, with design to oppress and injure the plaintiff, Lula De-makes.” There is evidence to support this finding. The grocery manager in charge of the store at the time in company with the manager of the produce department followed the security guard and Mrs. Demakes to the office of the manager of the store. It is admitted that the manager turned Mrs. Demakes over to the police. The manager of the produce department testified that he remained in the room where Mrs. Demakes was detained until the police arrived. There was testimony that Mrs. De-makes was detained for a period of several hours. She testified that she was tricked into signing a confession of shoplifting and that she was given nothing to eat or drink during the period of her confinement at the store. She testified that in answer to her question the boy at the check-out counter stated that he saw the cigarettes in her hand. When she asked him why he did not ring up the cigarettes, the security guard broke in and told her that it was not his business. There is testimony that it was the duty of the check-out counter man to inquire of a customer holding an article in her hand whether she wanted to pay for it. Mrs. Demakes testified that before she was arrested the security guard spoke to the police in a low tone of voice and showed them the purported confession. From the admission that she was turned over to the police by the manager the jury could infer that the manager was present at this time. She was then taken by the police to the jail where she was stripped, searched, finger printed and placed in a cell with women who admitted that they were charged with prostitution. The evidence fully supports the finding of the jury.

The plaintiff sought the sum of $25,000.00 as exemplary damages for the false imprisonment. The jury awarded the sum of $50,000.00 and the trial court required a remittitur in the sum of $25,000.00. The trial court recited in the order requiring a remittitur that the amount of exemplary damages awarded by the jury were excessive in the sum of $25,000.00. We do not find that this action constituted an abuse of the trial court’s discretion.

The jury was instructed that exemplary damages means damages which the jury in its discretion may allow in addition to the actual damages by way of punishment and as an example for the good of the public, and that the jury could also award compensation for inconvenience, reasonable attorney’s fees and other losses too remote to be considered actual damages. No complaint was made of this instruction. The jury was advised that the plaintiff’s attorneys would receive a fee of one third of the damages allowed. Under the circumstances of this case the amount of exemplary damages permitted by the trial court is not excessive.

The judgment is affirmed.


author: DIES, Chief Justice.

text:
    Ella V. WHITLEY, Appellant, v. Jesse Lee WHITLEY, Appellee.
    No. 8108.
    Court of Civil Appeals of Texas, Beaumont.
    April 20, 1978.

      Delmar S. Hilliard, Newton, for appellant.
    Sid S. Stover, Jasper, for appellee.
   DIES, Chief Justice.

Ella V. Whitley appeals from a dismissal of her motion to reduce unpaid child support to judgment. The trial court held that a previous contempt action is res judicata as to the present action.

The parties were divorced on February 4, 1970, and plaintiff was awarded custody of their four minor children. Defendant was ordered to make child support payments of $160 per month. On April 7, 1976, Ella Whitley moved to increase the child support payments and moved that Jesse Lee Whitley be held in contempt for failure to pay previously due child support.

On July 22, 1976, the trial court, Judge O’Neal Bacon presiding, found defendant in contempt, and ordered him committed to jail until he purged himself of contempt. Judge Bacon then stayed the commitment order so long as defendant made the increased child support payments also contained in the order. The court further ordered that Jesse Lee Whitley pay no delinquent child support due as of July 22, 1976.

On September 12, 1977, Ella V. Whitley filed a second motion for contempt and a motion to reduce unpaid child support to judgment. On October 18, 1977, the trial court, Judge Monte Lawlis presiding, overruled plaintiff’s motion for contempt, and held that the July 22, 1976, judgment was res judicata as to the motion to reduce unpaid child support to judgment. Plaintiff appealed from the overruling of her motion to reduce unpaid child support to judgment.

Our record does not contain any written pleadings by the defendant. The order denying plaintiff’s motion to reduce unpaid child support to judgment recites that defendant’s attorney “entered an oral plea of res judicata to petitioner’s motion, alleging that all matters in controversy in this motion had been finally decided by a prior order entered in this matter of July 22, 1976.”

Res judicata is an affirmative defense, and must be affirmatively pled under Tex.R.Civ.P. 94, so as to give the plaintiff notice of defensive issues to be tried. Reid v. Associated Employers Lloyds, 164 S.W.2d 584 (Tex.Civ.App.—Fort Worth 1942 writ ref’d); Layton v. Layton, 538 S.W.2d 642, 647 (Tex.Civ.App.—San Antonio 1976, writ ref’d n.r.e.). Since defendant failed to properly plead his affirmative defense, it was waived. Petroleum Anchor Equipment, Inc. v. Tyra, 419 S.W.2d 829, 835 (Tex.1967); Allandale Nursing Home, Inc. v. John Bremond Co., Inc., 514 S.W.2d 958, 959 (Tex.Civ.App.—Austin 1974, writ ref’d n.r.e.); Lewis v. McClelland. 502 S.W.2d 915, 921 (Tex.Civ.App.—Austin 1973, no writ). The trial court therefore erred in sustaining an oral plea of res judicata.

However, an affirmative defense may be tried by consent, even if it is not properly plead, as mentioned in Tyra, supra. See Tex.R.Civ.P. 67. Plaintiff did not object to defendant’s plea of res judicata on the grounds that the issue was improperly pled, but instead objected on the substantive grounds that the prior order was not res judicata. Under these circumstances, we hold that the affirmative defense of res judicata was tried by consent of the parties, even though it was not properly raised by defendant’s pleadings. See Willeford v. Walker, 499 S.W.2d 190, 193 (Tex.Civ.App.—Corpus Christi 1973, no writ).

Since the defense of res judicata was tried by consent of the parties, the trial court properly held that the order of July 22, 1976, barred the later motion to reduce unpaid child support to judgment. A motion for contempt and a motion to reduce unpaid child support to judgment are separate remedies, not separate causes of action. Houtchens v. Matthews, 557 S.W.2d 581 (Tex.Civ.App.—Fort Worth 1977, writ dism’d). Both remedies are dependent upon a finding that the defendant was in fact delinquent in his child support payments. This controlling issue was determined in the July 22, 1976, judgment. This judgment found that the defendant owed such sums, but ordered that sums due before the date of the judgment not be paid. This order was not limited to the remedy of a motion for contempt, but also barred the remedy of a motion to reduce unpaid child support to judgment.

If the plaintiff had objected to or appealed from the judgment of July 22, 1976, that part of the judgment modifying defendant’s past-due child support would no doubt have been set aside. Courts previously had the power to modify the date of payment of past-due child support. Tex. Rev.Civ.Stat.Ann. art. 4639a (since repealed). This power was not carried over into the enforcement provisions of the Family Code. Tex.Family Code Ann. § 14.09 (1975). Under the Family Code, child support payments may not be modified once they have accrued; an order providing for support may be modified only as to subsequent support obligations. Tex.Family Code Ann. § 14.08(c)(2) (Supp.1978); Houtchens, supra.

Since plaintiff agreed to the July 22, 1976, judgment, and did not object to it or appeal from it, she may not attack that judgment through a collateral proceeding. As Justice Barrow noted in Gonzalez v. Gonzalez, 532 S.W.2d 382 (Tex.Civ.App.—San Antonio 1975), since the wife accepted the benefits of the first judgment — increased child support payments in the present case — she may not later complain of that judgment in a separate proceeding.

Finding no reversible error, we affirm the decision of the trial court.

AFFIRMED.

      . We take judicial knowledge of the fact that District 1A, from which this appeal comes, was created by Acts 1977, 65th Leg., p. 2154, ch. 860, § 1, eff. September 1, 1977. See Tex.Civ. StaLAnn. art. 199a, § 3.075 (Supp.1978). Thus, we judicially know that the 1976 order relied upon to establish res judicata could not have been entered in the court hearing this proceeding.

      . Shepard’s Southwestern Reporter, February 1978, indicates that the writ of error was dismissed. The writ of error tables show no writ history.


author: PEDEN, Justice.

text:
    Ralph W. KETTLEWELL et al., Appellants, v. HOT-MIX, INC., Appellee.
    No. 17098.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 27, 1978.
    Rehearing Denied June 1, 1978.

      Law Offices of L. A. Greene, Jr., L. A. Greene, Jr., James R. Doxey, Houston, for appellants.
    Baker & Botts, Robert E. Morse, III, Houston, for appellee.
    John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., Troy C. Webb, Chief Environmental Protection Div., Douglas G. Caroom, Asst. Atty. Gen., Environmental Protection Div., W. Thomas Buckle, Asst. Atty. Gen., Environmental Protection Div., Austin, for intervenor-ap-pellee State of Tex.
   PEDEN, Justice.

Appellants, who are property owners living nearby, sued Hot-Mix, Inc., to enjoin operation of its recently constructed asphalt plant, alleging that the failure of the Texas Air Control Board (T.A.C.B.) to afford them notice of and opportunity for a hearing before issuing a construction permit to Hot-Mix constituted a violation of the due process provisions of the United States and Texas Constitutions. The plaintiffs did not seek damages. The T.A.C.B., an agency of the State of Texas, intervened as a party defendant to contest plaintiffs’ claim that the permits issued by the Board were invalid.

This case was submitted to the trial court on stipulated facts. The court concluded that 1) the plaintiffs did not exhaust their available administrative remedies, 2) Hot-Mix’s conduct here complained of was not performed under color of state law, 3) the plaintiffs were not denied due process, but if they were, Hot-Mix was not responsible for any denial, 4) there is no evidence of nuisance, 5) plaintiffs suffered no actual damages, but if any were suffered, they were neither substantial nor irreparable, and 6) plaintiffs were not entitled to attorney’s fees. Plaintiffs’ appeal asserts error in each of these conclusions. Both defendants raise cross-points alleging error in the trial court’s denial of their pleas to the jurisdiction and of their motions to dismiss the action based on the plaintiffs’ lack of standing. We affirm.

Hot-Mix, Inc., began building its asphalt plant on Brittmore Road in Houston after July 23,1974, pursuant to Construction Permit C-2559 issued by the T.A.C.B. and began operating it on October 23, 1974. No notice was given to any of the plaintiffs of the filing of the application for the construction permit, and none of them acquired actual notice of such filing, nor of any action taken on it before July 23, 1974. They learned of the application only after construction was begun under the permit. Notice was published by the T.A.C.B. on October 9, 1974, stating that a public hearing of the T.A.C.B. would be held on November 13,1974, to consider the compliance status of the operations of Hot-Mix with Construction Permit C-2559, the Texas Clean Air Act, and the rules and regulations of the Texas Air Control Board at the facility in question. The notice stated that representatives of Hot-Mix were directed to appear and show whether it was in compliance with that permit, Act, and those rules and regulations. The notice stated that information developed at the hearing “may be used” by the executive director of the T.A.C.B. in making any decision regarding the construction permit or the issuance of an operating permit to Hot-Mix. At the hearing all parties were represented by counsel and were given the right to present evidence, cross-examine witnesses, present oral arguments and were allowed additional time to supplement the record with documentary evidence. A record of the proceeding and a report of the examiner were submitted to the T.A.C.B., and on June 20, 1975, it issued an operating permit to the plant. Plaintiffs did not appeal to the district court of Travis County from the granting of either the construction or the operating permits as allowed in § 6.01 of the Texas Clean Air Act, Article 4477-5, Vernon’s Texas Civil Statutes.

The parties stipulated that the operation of the Hot-Mix plant has resulted in some particulate emissions including dust that sometimes is visible in the air near the plaintiffs’ homes. Noises are noticeable, have occasionally caused plaintiffs’ windows and home household items to rattle, and have bothered plaintiffs. Under certain wind conditions several plaintiffs have smelled asphalt odors outside their homes. Plaintiffs have incurred no personal injuries requiring medication or medical care. No repair costs or property damages have been incurred except that some plaintiffs have been required to re-hammer some loose nails.

Points of error 1-6 contend that appellants had a constitutional right to notice and a hearing prior to the issuance of the construction permit. Appellants rely on Article 1, Section 19 of the Texas Constitution and the 14th Amendment to the United States Constitution in arguing that they were deprived of their property without due process of law. Although they did not specifically plead it, appellants assert that their cause of action is based on 42 U.S.C. § 1983, which provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within „ the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Point number 6 asserts error in the court’s conclusion of law that “the conduct of Hot-Mix here complained of was not conduct performed under color of state law.” Appellants argue that Hot-Mix was acting under color of state law because Hot-Mix was statutorily required to obtain permits from the T.A.C.B., an agency of the state, prior to constructing and operating the asphalt plant. See Article 4477-5, § 3.27(a) and § 3.28(a), V.T.C.S. We overrule this point.

In Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), the United States Supreme Court pointed out that the due process clause of the Fourteenth Amendment applies only to state action, not private action “however discriminatory or wrongful.” It held that Pennsylvania’s extensive regulation of private utility companies did not make actions of those companies constitute acts attributable to the state for the 14th Amendment or § 1983. The petitioner in that case alleged a denial of due process because the utility company discontinued her electric service without a prior hearing. The Court held that “the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” The court further stated that “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” We hold that in our case Hot-Mix was not acting as a state agency or under color of state law when it applied to the T.A.C.B. for a construction permit and had no duty to give notice to the plaintiffs. Approval of the construction application by the T.A. C.B., where the Board did not put its weight on the application by ordering the plant to be built, does not convert the application initiated by the company and approved by the Board into State action.

Appellants in our case assert under points of error 1, 2 and 3 that due process was denied them because they were not afforded notice and a hearing prior to the granting of the construction permit. “. . . resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected.” Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976). The three factors considered in identifying the specific dictates of due process are 1) the private interest that will be affected by the official action, 2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and 3) the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

In the ease at bar, the private interest affected (over which the T.A.C.B. might have exercised control) was the stipulated fact that the operations of the plant result in “some particulate emissions, including dust, in the plant and near plaintiffs’ homes which periodically have settled on plaintiffs’ personal property and sometimes have been visually apparent in the air over plaintiffs’ land.” Also operation of the plant “has, occasionally, under some wind conditions, caused several plaintiffs to smell aromas or odors of asphalt while outside their homes but while in their yards and which bother them.” Further, operations contribute to some increase in household cleaning, such as dusting furniture more frequently. As noted, there were no personal injuries requiring medication or medical care and no property damages or repair costs. As to the second factor, the reliability of the existing procedures and the probable value of additional procedural safeguards, the appellants were represented and given a full hearing prior to the issuance of the operating permit. If the hearing had been held prior to the granting of the construction permit, permission to build the facility might have been denied without giving Hot-Mix the opportunity to demonstrate— at its risk—that the emissions would not be worse than the parties have here stipulated. Under the facts of this case it appears that giving of notice and setting a hearing after construction but before the granting of the operating permit was a reasonable procedure. It adequately protected the appellants’ rights to due process while placing on Hot-Mix the risk of building the plant without knowing an operating permit would be issued. The final factor to be considered is the state’s interest. If prior to the compliance notice and hearing, a construction notice and hearing had to be provided each time a permit was sought, the additional cost and administrative burdens would, under the facts in this case, appear to be substantial without commensurate benefit. Under the present system, the appellants were given notice and a full hearing without the state bearing the burden of being constitutionally required to give prior notice to everyone who might be affected by the issuance of a permit. Under the facts of this case, we cannot say that as a matter of law due process required this additional safeguard.

Points of error 5 and 7 are that the trial court erred in refusing to grant the injunction and in finding that the plaintiffs have suffered no actual damages or, alternatively, that any damages suffered are vague, indefinite and insufficient to sustain injunctive relief, and that the injury, if any, is neither substantial nor irreparable and there is an adequate remedy at law for damages. We overrule these points. The trial court was entitled to make such findings and conclusions from the law and from the stipulations of no personal injuries requiring medication and no repair costs or property damages. “The general rule is that to entitle a petitioner to injunctive relief there must be established an actual and substantial injury or an affix native prospect thereof.” Protestant Episcopal Church Council v. McKinney, 339 S.W.2d 400, 403 (Tex.Civ.App.1960, writ ref.).

Appellants’ point of error 8 attacks the court’s finding that there was no evidence of nuisance. In order to find that the operation of a plant is a nuisance, the condition brought about in the use of it must be “1) so unusual and excessive that it necessarily caused injury or damage or harm or inconvenience to the neighbors in the use and enjoyment of their property, substantially, materially, and unreasonably interfering with [their] comfort and proper use and enjoyment of [their] property, taking into consideration the nature and use of the property of both parties and the character of the community in which they are situated; 2) that such condition was substantially offensive, discomforting, and annoying to persons of ordinary sensibilities, tastes, and habits, living in the locality where the premises are situated; 3) to take into consideration the nature and use of the property of both the appellant and the appellee, and the character of the community in which they are situated.” Columbian Carbon Co. v. Tholen, 199 S.W.2d 825, 829 (Tex.Civ.App.1947, writ ref.). The trial court did not err in concluding that the appellants have not demonstrated that the operation of the plant constituted a nuisance.

Point of error 9 is that the trial court erred in holding that the plaintiffs failed to exhaust their available administrative remedies; they contend that the administrative process was complete when they first learned of the state action. We disagree. Stipulated facts 9 and 10 are that appellants learned of the construction of the plant sometime between July 23, 1974 and October 9, 1974. At this time they could have sought a revocation of the construction permit under § 3.27(e) or § 6.01 or the Texas Clean Air Act. The operating permit was not issued until June 20, 1975, and the appellants did not appeal from the granting of that permit.

Appellants cite McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), in arguing that exhaustion of administrative remedies is not a condition precedent to pursuing a civil rights claim. McNeese holds that rights which are inherently federal in nature may be brought in federal court rather than first exhausting state remedies. The question in the case at bar is whether plaintiffs must exhaust prescribed administrative remedies prior to seeking injunctive relief by a collateral attack on an order. If the administrative remedies are adequate, they must. See Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 67 S.Ct. 1493, 1501, 91 L.Ed. 1796 (1947); 6 Texas Practice, Remedies 149, § 113 (1973).

Appellants’ tenth point attacks the trial court’s conclusion that Hot-Mix complied with all applicable statutes. This conclusion is supported by stipulated facts. More particularly, Hot-Mix applied for and received construction and operating permits. It is stipulated that Hot-Mix complied with the construction permit.

Point 11 challenges the validity of the construction and operating permits because they were signed by the Executive Director by Bill Stewart, Director of Control and Prevention, rather than by a member of the Board. We overrule this point. The T.A.C.B. passed a resolution authorizing the Director of Control and Prevention “to sign his name for or in behalf of and at the direction of, the Executive Director” with respect to permits issued under the Texas Clean Air Act. Section 3.27(g) of the Act allows the Board to delegate its licensing powers and duties (set out in Sections 3.27 and 3.28) to the executive director. Section 3.01 of the Act provides that the Board “has the powers and duties specifically prescribed in this Act and all other powers necessary or convenient to carry out its responsibilities.” Further, we consider this point to be an impermissible collateral attack on the validity of the permits issued by the T.A.C.B.

Appellants’ final point asserts that the trial judge erred in failing to award an attorney’s fee under the Civil Rights Attorney’s Fee Act, 42 U.S.C. § 1988. They have been unsuccessful in their suit and are not entitled to be awarded an attorney’s fee.

We need not consider the appellees’ cross-points.

Affirmed.


author: EVANS, Justice.

text:
    Ex parte Ira ANDREWS, Relator.
    No. 17056.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 27, 1978.

      Carol J. Carrier, Houston, for appellant.
    G. Keith Anders, Houston, Donna M. Bobbitt, Harris County Child Support Enforcement Division, Houston, for appellee.
   EVANS, Justice.

Relator brings this original habeas corpus proceeding, contending that the judgment of contempt and commitment order are void because he is unable, through no fault of his own, to obey the court’s order.

The order of commitment dated October 6, 1977, finds relator to be in arrears of child support payments in the total sum of $900.00, adjudges his punishment for such contempt at confinement in the county jail for a period of one day and directs that he be further confined until he shall have purged himself of the contempt by paying the sum of $400.00, as child support payments and court costs.

Attached to the back of relator’s application for writ of habeas corpus is a typed statement, signed but not sworn to by relator, in which he states that on October 6, 1977, he did not have any money or any means of obtaining money, and that he was presently unemployed and without funds.

Relator has filed a statement of facts containing his testimony given at the contempt hearing. He testified that he had received a back and leg injury in August, 1976, prior to the time his wife filed the application for contempt, and that at the time of the hearing he was not working. He could not lift anything, could hardly walk and was under a doctor’s care. He had filed a workman’s compensation suit for damages resulting from the accident in which he had been injured, and his lawyer was letting him drive a 1969 Cadillac to go back and forth to the doctor. He was not receiving weekly compensation checks, but had received a check for approximately $1,600.00 in February, 1977.

Where a party charged with contempt for failure to comply with a court order requiring the payment of money, shows that such failure resulted from poverty, insolvency, or other cause not attributable to his own fault, such showing will ordinarily relieve him from the consequences of contempt. Ex parte Gonzales, 414 S.W.2d 656 (Tex.1967). However, it is such party’s burden to show the basis for his inability to comply with the court’s order. Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955), and the evidence presented on behalf of the party charged must conclusively establish his involuntary inability to perform. Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251 (1955).

Where the party charged with contempt claims that he was financially unable to make the required payment, he ordinarily must establish (1) that he lacked sufficient personal or real property which could be sold or mortgaged to raise the needed sum; (2) that he had unsuccessfully attempted to borrow the sum from financial institutions; (3) and that he knows of no other source including relatives from whom the sum could be borrowed or otherwise secured. Ex parte Hennig, 559 S.W.2d 401, 402 (Tex.Civ.App.—Dallas 1977, no writ). He must show “without substantial contradiction in the record that he was unable at the time of the hearing to do the act required by the judgment as a condition for release from custody.” Ex parte Deckert, 559 S.W.2d 847 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ).

Relator presented no evidence as to his financial condition except as has been stated. He made no attempt to account for the $1,600.00 he had received in compensation benefits in February, 1977, nor did he offer any testimony indicating what efforts he had made to secure funds from other sources to meet the required payments. On the basis of the record before this court, relator has not demonstrated an inability to comply with the court’s order.

Relator’s counsel further argues that relator appeared on his own behalf at the contempt hearing and that due to his lack of education and legal training he was unable to bring forward the necessary facts with respect to his financial capability. Thus relator argues, in effect, that he was denied due process by reason of the trial court’s failure either to provide counsel to represent him at the contempt hearing or to elicit from him all of the relevant facts and circumstances concerning his inability to make the required payments.

The nature of this argument raises serious constitutional questions. (See: Ex parte Wilson, 559 S.W.2d 698 (Tex.Civ.App.—Austin 1977, no writ.) However, relator’s application for writ of habeas corpus does not show that relator requested that the court appoint counsel to represent him at the contempt hearing or that he was at that time indigent and, thus, unable to retain counsel at his own instance. Neither does the record affirmatively show that relator was prevented from testifying fully with respect to all of the facts and circumstances bearing upon his ability to comply with the court’s order. Under such circumstances relator has shown no basis for relief.

The application for Writ of Habeas Corpus is denied, and Relator is remanded to the custody of the Sheriff of Harris County, Texas.