author: CATINNA, Commissioner. CLAYTON, Justice

text:
    Charles POWERS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 9, 1975.
    Donald L. Cox, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Robert W. Riley, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CATINNA, Commissioner.

Charles Powers and Richard Allen Roberts were jointly indicted for the illegal sale of narcotics to W. Harper and L. Hile. The jury found Powers guilty on one count and fixed his punishment at ten years’ imprisonment and a $10,000 fine and found Richard Allen Roberts guilty on two counts and fixed his punishment at five years’ imprisonment on each count. Powers and Roberts prosecute separate appeals from the judgment entered upon the jury’s verdict. We consider here the appeal of Charles Powers.

Powers asserts that the evidence was insufficient to convict him of a sale of narcotics as alleged in the indictment and under the instructions given; and he was, therefore, entitled to a directed verdict of not guilty.

W. Harper and L. Hile, members of the Louisville Police Department, were on assignment with the narcotics bureau as undercover agents. On the night of July 30, 1973, they became acquainted with Richard Allen Roberts while talking with a number of people gathered around the officers’ parked automobile in the parking lot of a housing project. Roberts got into the automobile with Harper and Hile and after additional discussion volunteered to get them some white heroin. They were receptive to the offer and paid him $40 at the time. After an unsuccessful attempt to make a buy in the 700 block of Cecil Avenue, Roberts directed Harper and Hile to take him to 34th and Duvall Drive. Roberts got out of the automobile, walked up the street to an opening between two buildings and then along a walk between the buildings to what would be the entrance to the third apartment from the street, where he met a man later identified as Charles Powers. Harper had followed Roberts at a distance and was approximately 40 feet behind him when he met Powers. Harper claims that he observed Powers transfer something to Roberts in return for the money that Roberts had in his hand. Harper returned to the automobile. He was followed a short time later by Roberts who, upon entering the automobile, handed Hile four bindles of heroin that he had obtained from Powers.

Powers testified that Roberts was, at the most, a casual acquaintance; that he did not know Harper and Hile; and had not seen either of them until the day of the trial. Powers denied any sale of heroin to Roberts, Harper, Hile, or anyone else. Roberts testified that he had never purchased heoin from Powers and further that he had never seen either Harper or Hile until after he was arrested.

Count three of the indictment against Roberts and Powers charged:

“That on or about the 30th day of July 1973, in Jefferson County, Kentucky, both the above named defendants, Charles Powers and Richard Allen Roberts, unlawfully sold to W. Harper and L. Hile an amount of narcotics known as Heroin.”

Instruction No. 1, as given by the court, said:

“If the jury believe from the evidence in this case beyond a reasonable doubt, that on or about the 30th day of July, 1973, in Jefferson County, Kentucky, and before the finding of the indictment herein, the defendant, Charles Powers, did unlawfully, wilfully, knowingly and feloniously sell to W. Harper and L. Hile an amount of narcotic known as Heroin, then you will find him guilty as charged in Count 3 of the indictment and fix his punishment at confinement in the penitentiary for not less than five nor more than ten years, or by a fine of not less than $5,000' nor more than $10,000, or you may both so fine and imprison him, in your discretion.”

The jury returned the following verdict:

“We, the jury, find the defendant, Charles Powers, guilty under Instruction No. 1 and fix his punishment at 10 YEARS & $10,000.00.
/s/ Rev. Clifford Anthony Jr., Foreman”

An identical instruction No. 2 was given as to Richard Allen Roberts regarding the sale of July 30, 1973. The jury found him guilty as charged under this instruction and fixed his punishment at five years’ imprisonment. Roberts was also found guilty and given five years on another charge that did not involve Powers.

Consequently we have here the anomalous result of two persons being convicted of selling the same four bindles of heroin to Harper and Hile, although there was no evidence that one of them, Powers, knew or was aware of the existence of the undercover agents or that they in any way participated in the asserted sale between Powers and Roberts. The identity of the undercover agents was unknown to both men, and it is conclusively shown that Roberts was not their agent. The only evidence introduced by the prosecution concerning the sale, alleged in count three of the indictment, was of a transaction observed by Harper between Powers and Roberts. Harper could not be classed as a participant in this transaction, his involvement being limited to supplying money to Roberts so he could buy heroin from someone.

Count three of the indictment charged Powers with a sale of heroin to Harper and Hile and not to Roberts. Instead Roberts was also charged with making the same sale to Harper and Hile. There was absolutely no evidence of a sale from Powers to Harper and Hile, or anything that might implicate him as being a participant to any degree in the sale from Roberts to Harper and Hile. At the most, the cumulative effect of the evidence introduced by the prosecution showed a sale by Powers to Roberts, a crime which was not charged in the indictment.

Our research reveals that there is no authority in Kentucky on this specific issue. However, in other jurisdictions considering the question, the courts have ruled that the accused seller did not sell to the ultimate buyer.

In People v. Bueno, 35 Ill.2d 545, 221 N.E.2d 270 (1966), Bueno was convicted of selling narcotics to Eugene Nicoletti, a police officer. While concealing his identity, Nicoletti persuaded Thomas Wright to sell him some narcotics and gave him money so he could make a purchase. Nicoletti followed Wright until he came out of a poolroom, at which time he handed Nicoletti the narcotics and gave him a description of the seller. Later Bueno was arrested and found to be in possession of the money that Nicoletti had previously given Wright. In reversing Bueno’s conviction the court said:

“The defendant contends that the judgment of conviction must be reversed because the indictment charged him and Wright with the sale of narcotics to Nicoletti and the evidence shows, at the most, that the defendant sold narcotics to Wright. We agree with this contention. In People v. Davis, 13 Ill.2d 211, 148 N. E.2d 771, the defendant was charged with the sale of narcotics to White, a minor. The evidence showed that White had been arrested for possession of narcotics. He was supplied with money by the police for the purpose of purchasing narcotics. White gave the money to a third party who purchased narcotics from the defendant, and then delivered the drugs to White. There was no evidence that the defendant had ever met or had any dealings with White. We held that so far as the record indicated, any sale of narcotics by the defendant was to the third party and reversed the judgment of conviction because the evidence failed to prove the crime of selling narcotics to White as alleged in the indictment. In People v. Sullivan, 23 Ill.2d 582, 179 N.E.2d 634, George Sullivan and Anthony Latino were indicted for selling narcotics to Sterling Hart. Arrangements were made by the police for the controlled purchase of narcotics by Hart. Hart was given money to make the purchase and gave the money to Latino who returned with narcotics which he gave to Hart. Thereafter, Sullivan was arrested and the money which had been given to Hart was found in Sullivan’s possession. Sullivan admitted selling narcotics to Latino. We held that while the evidence showed that Sullivan might have sold narcotics to Latino, it did not show that he participated in any sale to Hart. We reversed the judgment of conviction, relying on the Davis case. We are of the opinion that the facts here cannot be distinguished from those in the Sullivan and Davis cases.
“There was no evidence that the defendant had any knowledge that Nicoletti was the ultimate purchaser and at the most the evidence showed a sale by the defendant to Wright, a crime which was not charged in the indictment.”

The evidence against Charles Powers did not support the submission of his case to the jury on the offense charged in count three of the indictment. If upon another trial the evidence is substantially the same, he will be entitled to a directed verdict of acquittal.

The judgment is reversed for further proceedings consistent with this opinion.

REED, C. J., and JONES, LUKOW-SKY, PALMORE, STEPHENSON and STERNBERG, JJ., concur.

CLAYTON, J., dissents.

CLAYTON, Justice

(dissenting).

I respectfully dissent from the majority opinion. From the evidence as developed by setting out the chain of events which transpired on the night of July 30, 1973, I would hold that there was a submissible case to the jury on the question of whether Powers sold the heroin in question to officers Harper and Hile. Further, by reason of the jury’s conviction of Powers under the instruction given, it must be assumed that Roberts was viewed as either acting for Harper and Hile or was being used by them as an aid in performing their official duties, and that any sale by Powers to Roberts was tantamount to a sale to Harper and Hile.

As the majority opinion notes, there is no authority in Kentucky on this specific issue. Insight into the particular problem presented here may be gained by considering United States v. Barcella, 432 F.2d 570, 571, 572 (1 Cir., 1970) (a case involving a prosecution for sale of narcotics brought against an intermediary used by a police officer to purchase heroin from a supplier). The court in discussing the defense forwarded by Barcella stated:

“The procuring agent theory is new to this circuit. So far as we can discover, it was initiated in United States v. Sawyer, 3 Cir., 1954, 210 F.2d 169, and now appears to be accepted in a majority of the circuits. [Citations omitted]. In essence the theory is that if the defendant, in procuring the drugs and delivering them to the recipient, acted solely as the agent of the recipient, and in no other capacity, then the delivery was the transfer by an agent to his principal of what already belonged to the principal * * (Emphasis added).

This language from Barcella, stating the majority view, indicates that an intermediary cottld be merely a conduit between the actual seller and the eventual real buyer. The court in Barcella, however, rejected the majority view in that case with its unique facts, choosing instead to allow the jury to determine the ultimate issue of whether there had been a “sale” and said at page 572 :

“ * * * [T]he jury could infer that he retained or received a portion of the sales price as a profit or commission from the supplier.
“ * * * By the same token, a jury might rationally consider that a defendant who was ready, able and willing to enter the transaction * * * was a seller, or an associate or agent of a seller, however much he might maintain that he was only accommodating the buyer. Such matters must be left to a jury’s good judgment." (Emphasis added).

Since there was no evidence whatever of any direct sale from Powers to officers Harper and Hile, the jury must necessarily have believed, as was their right under the evidence of this case, that Roberts was the agent of officers Harper and Hile and the sale and delivery of the drugs from Powers to Roberts was, in effect, a sale and delivery from Powers to officers Harper and Hile.

      . Discussion, of evidence limited to that affecting Powers only.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BIG D SERVICE COMPANY, INC., Petitioner, v. CLIMATROL INDUSTRIES, INC., Respondent.
    No. B-4942.
    Supreme Court of Texas.
    Jan. 15, 1975.
    Allen Melton, Dallas, for petitioner.
    Goldberg & Alexander, Arthur S. Goldberg, Robert G. Moss, Dallas, for respondent.
   PER CURIAM.

This is a suit on a sworn account, founded on the breach of a contract for the sale of three air compressors. Climatrol sold Big D Service Company the first two compressors in January, 1968; the third was sold in February, 1968. Climatrol filed this suit on December 10, 1970, more than two years but less than four years after the sales transactions. The sole issue is whether the two-year limitation period imposed by Article 5526, Vernon’s Tex. Rev.Civ.Stat., Ann., or the four-year limitation period prescribed by § 2.725 of the Texas Business and Commerce Code, V.T. C.A., applies to an action for the breach of contract for the sale of goods. The Court of Civil Appeals held that the four-year period of limitation governs the action here pleaded. Tex.Civ.App., 514 S.W.2d 148. We agree. We refuse the application for writ of error here, as we did in Wilson v. Browning Arms Co., 501 S.W.2d 705 (Tex.Civ.App.1973). The action pleaded in each case was for the breach of contract for the sale of goods. The holding in Wilson v. Browning Arms Co. that “since June 30, 1966, the four-year statute of limitations provided for in Tex.Bus. & Comm.Code Ann. sec. 2.725 should be applied to suits on sworn accounts” must be read in the context of an'action for breach of a contract for sale. Suits on sworn accounts which are not founded on breach of contract for sale are not governed by this statute.


author: MORRISON, Judge.

text:
    Christopher Lee WARREN, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49954, 49955.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    Robert W. McLaughlin, Dallas, for appellant.
    Henry Wade, Dist. Atty., W. T. West-moreland, Jr., and Les Eubanks, Asst. Dist. Attys., Dallas, Jim Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offenses are robbery by assault and attempted escape by the use of a firearm. The punishments, upon pleas of not guilty, 500 years for the robbery and IS years for the attempted escape.

This appellant was tried jointly with four other defendants. See Marshburn v. State, Tex.Cr.App., 522 S.W.2d 900 (decided May 21, 1975); and Thompson v. State, Tex.Cr.App., 514 S.W.2d 275; Bridger v. State, Nos. 48,718 and 48,719, was affirmed by an unreported per curiam opinion on July 17, 1974.

The sole contention presented by this appeal is part of the first contention raised in Thompson v. State, supra, i. e., the challenge to the sufficiency of the evidence to support the conviction for the robbery.

The law of the case doctrine requires that the determination of the facts in Thompson v. State, supra, adverse to this appellant, controls. See Porter v. State, 154 Tex.Cr.R. 540, 229 SW.2d 68; Gill v. State, 148 Tex.Cr.R. 513, 188 S.W.2d 584.

The appellant does not challenge the sufficiency of the evidence to support the conviction for the attempted escape; however, we quote briefly from the jailer who was assaulted during the course of the escape:

“Q Now, after that, what, if anything happened to you ?
A Well, I started to try to get to the door again and Marshburn turned and put the gun in my face.
******
Q What did they do?
A Bridger put a knife to my stomach and Christopher Lee Warren [this appellant] held a razor blade knife over my ear.”

Having determined appellant’s complicity as a principal in the attempted escape, the rationale of Thompson v. State, supra, regarding the robbery by assault applies.

The robbery of the guard during an armed escape attempt is a probable consequence of the execution of the escape plans. Thus all principals in the attempted escape are liable for the robbery as a principal; and since the evidence is sufficient to show the appellant to be a principal in the attempted escape, it therefore follows that the appellant is guilty of the robbery.

Accordingly, the judgments are affirmed.

ODOM, J., concurs in the results.

      . Part II of the opinion is not for publication. It discusses the questions sought to be raised by the appellant’s pro se brief.


author: ONION,. Presiding Judge.

text:
    William Sloan BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 49837.
    Court of Criminal Appeals of Texas.
    May 21, 1975.

      Victor Hlavinka, Texarkana, for appellant.
    Lynn Cooksey, Dist. Atty., Boston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION,. Presiding Judge.

This appeal is taken from a conviction for the offense of murder with malice, wherein the jury assessed the punishment at twenty (20) years’ confinement in the Department of Corrections.

The sufficiency of the evidence is not challenged. The deceased was the ten month old stepdaughter of the appellant. He had met his wife, Jeanette, when she was seven months pregnant, and they married shortly after the birth of the deceased, Tina Renee Hicks.

Appellant’s extrajudicial confession was introduced, which recited he started spanking the child when she was six or seven months old, and that when the child cried and didn’t seem to want to have anything to do with him, he would lose his temper and spank her on the butt and legs, bruising her. He related one instance where he struck the child with a belt on the legs and in the face. One or two days before the death, he admitted he got “god-damn rough” and broke the child’s leg. On the day of the death he, his wife, and the deceased child were riding in a pickup and the child would not put any weight on her right leg, so he would place her hands on the dashboard and pull her left leg out from under her, trying to make her stand on the right leg. This was done a number of times, and each time the child’s head would hit the dashboard. When the child started bleeding from the móuth and appeared unconscious, she was taken to the hospital. Much of the State’s other testimony served to corroborate the confession. Drs. Bell and Smith testified to unsuccessful efforts to resuscitate the child after she was brought to the hospital by the appellant and his wife on August 12, 1973. Dr. Pope, who performed the autopsy, stated the cause of death was a blood clot in the brain which resulted from an injury to the head. All three doctors testified as to their observations of numerous bruises on the deceased’s body.

Initially, appellant asserts the trial court abused its discretion in excluding seven witnesses from the Rule after he had asked that the Rule be invoked.

Appellant in his brief asserts that these were Lt. Slover, Detective Sanders and Officer Clingan of the Texarkana city police, Justices of the Peace Grigson and Burkhal-ter, Texas Ranger Max Womack, and Hubbard McDuffie, one of the grand jurors who returned the indictment in question.

When the Rule was invoked, the court, sua sponte, stated, “All of you gentlemen who are officers of this Court are excused from the Rule.”

The appellant’s counsel objected to excusing “the officers from the Rule” and the court stated, “The exception is noted.” When appellant’s counsel inquired if it be necessary to object to each officer’s testimony “as he begins,” the court replied in the negative and stated the record showed the obj ection and the exception was noted.

Nowhere in this record are the “officers” excused from the Rule identified, and we are unable to tell which witnesses were actually excused at the time. It is well established that this court cannot accept as fact allegations or assertions in an appellate brief which are not supported by the record. See Washington v. State, 500 S.W.2d 485 (Tex.Cr.App.1973); Devereaux v. State, 473 S.W.2d 525 (Tex.Cr.App.1971).

We have carefully examined the record to determine if it reflects which witnesses may have heard the testimony in the case. Ranger Womack, who briefly testified only at the Jackson-Denno-Article 38.22, Vernon’s Ann.C.C.P. hearing on the admissibility of the confession in the absence of the jury, related he had been present during the testimony of Officers Slover and Sanders and Justice of the Peace Grigson during such hearing. Officer Clingan was asked during his testimony before the jury if he had been present “during any interrogation of any witness” at the trial, and he replied in the affirmative. The matter was not pursued and it was not established which witness or witnesses he heard. Justice of the Peace Burkhalter, when asked if he was present during the interrogation of any other witness, stated, “Only just a little bit this morning ... of Mrs. Brown.”

It is observed that none of these witnesses were ever asked if they had been among those who had been excused from the Rule by the court.

In light of the record before us and the lack of identity of the witnesses excused from the Rule as “officers of this Court,” we cannot conclude that error is shown.

Even if a witness violates the Rule and the court nevertheless permits the witness to testify, the matter is one addressed to the discretion of the court and, until the contrary appears, it will be presumed on appeal that such discretion was properly exercised. Owens v. State, 503 S.W.2d 271 (Tex.Cr.App.1974); Murphy v. State, 496 S.W.2d 608 (Tex.Cr.App.1973).

The Rule is provided for in Article 36.03, Vernon’s Ann.C.C.P., and the enforcement of the Rule is in the discretion of the court. See Article 36.04, Vernon’s Ann.C.C.P.

It is well established that the object to be attained by placing witnesses under the Rule is to prevent one witness from being influenced by the testimony of another, Carlile v. State, 451 S.W.2d 511, 512 (Tex.Cr.App.1970), and cases there cited. While wide discretion is confided in the trial judge with regard to application of the Rule, the discretion granted is not an arbitrary discretion. Carlile v. State, supra. Trial judges, in all fairness, are cautioned not to make, sua sponte or otherwise, wholesale exclusions from the Rule under the guise of excusing “officers of the Court,” thus permitting the material witnesses of one party to remain in the courtroom while the witnesses for the other party are excluded, even though that practice has long prevailed in certain counties. Only recently in King v. State, 511 S.W.2d 32 (Tex.Cr.App.1974), this court stated in footnote #5, “It should be noted that law enforcement officers who are witnesses in a case are not officers of the court unless they are acting in a limited capacity as bailiffs (see Art. 36.24, V.A.C.C.P., forbidding a witness to serve as bailiff) or in some other capacity as instructed by the judge.”

For the reasons stated, however, the appellant’s initial contention is overruled.

Appellant further complains that the State was improperly permitted to impeach its own witness, Vera Brown, without laying a predicate to show surprise.

Much confusion seems to exist among the bench and bar about when a party may impeach its own witness. It is well established, however, that a party may not impeach his own witness unless the witness testifies to facts injurious to that party’s case and that party demonstrates that he was surprised by such testimony. See Article 38.28, Vernon’s Ann.C.C.P.; Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974); Wood v. State, 511 S.W.2d 37 (Tex.Cr.App.1974). It is not sufficient in laying the predicate for impeachment for the party to claim or merely state to the court that he has been surprised. He should demonstrate surprise by the procedure outlined in Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529 (1959), by showing outside the presence of the jury his prior conversations with the witness or the prior statement, etc. Banks v. State, supra; Williams v. State, 521 S.W.2d 250 (Tex.Cr.App.1975).

It is simply not sufficient to justify impeachment that the witness merely fails to testify as expected or to remember facts favorable to the party calling the witness. Zanders v. State, 480 S.W.2d 708 (Tex.Cr.App.1972); Wood v. State, supra. It is this point which is not understood by many lawyers. It should also be remembered that foreknowledge that a witness will testify as he does precludes impeachment though testimony given is decidedly adverse on a vital issue. Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967). The purpose of the rule requiring a showing of surprise is to prevent a party from calling a witness who the party knows will testify adversely to such party and then, under the guise of impeachment or cross-examination, present before the jury evidence which the party would have hoped to elicit from the adverse witness. Cherb v. State, 472 S.W.2d 273 (Tex.Cr.App.1971); Webb v. State, 503 S.W.2d 799 (Tex.Cr.App. 1974).

With this background, we now turn to the facts of the instant case. The State called the 14 year old sister of the appellant, Vera Brown, as its witness and elicited from her appellant’s actions toward the deceased on Friday evening prior to the deceased’s death on Sunday. During the direct examination of this witness, the jury was retired and the district attorney claimed surprise, saying the witness was testifying “one hundred and eighty degrees in reverse . . .” from a prior statement given to the police. No evidence was offered to lay the predicate to show surprise or that the witness had stated facts injurious to the State. It appears that the witness had not testified as expected and the testimony was not as damaging to the appellant as the district attorney had hoped for. The court, after having interrogated the witness, without having established the necessary predicate by its questioning, permitted the State an opportunity to impeach its own witness. In this the court was in error, for the proper predicate had not been laid. We do not, however, perceive reversible error.

When the jury was returned, the witness was shown her prior statement, which she admitted signing, and then she was read portions of it and she admitted the statement correctly related the facts. This is similar to Wright v. State, 422 S.W.2d 184 (Tex.Cr.App.1967), wherein the court overruled a contention that the State improperly impeached its own witness where the witness was shown her prior statement and admitted the statement correctly reflected what happened. There, the court said, “In light of the admission by Mrs. Banker that the quoted part of her written statement correctly related the facts, the appellant’s contention is overruled.” See also Cherb v. State, 472 S.W. 2d 273, 277 (Tex.Cr.App.1971); Walker v. State, 473 S.W.2d 497, 499 (Tex.Cr.App.1971). In the instant case the witness’ admission that the statement was correct merely added additional damaging facts to the case and was explanatory of her earlier testimony and not necessarily inconsistent therewith. Appellant’s contention is overruled.

Appellant also complains that the court improperly permitted the State to impeach its own witness, Jeanette Brown, appellant’s wife, without laying the proper predicate therefor. We cannot agree. After the witness had been called by the State and had testified for some time, the jury was removed and interrogation of the witness revealed that she had given a prior statement to the police and had testified before the grand jury; that since that time she had only told the prosecution she would tell the truth, and that she had never approached the district attorney or his assistants and said that her testimony would be different from her prior statement or grand jury testimony. Charles Hall, assistant district attorney, testified that he had shown the witness her prior statement the day before and she had not indicated or related that she would testify differently. Hubbard McDuffie, a former grand juror, testified as to the witness’ testimony before the grand jury, and Officer Clingan was called to prove that he had taken the prior statement from the witness. It is clearly evident from the record that the procedure utilized was similar to that recommended in Pelton v. State, supra, for laying the predicate for impeachment of one’s own witness and adequately demonstrated that the State was surprised, and the record further reflects that the witness had testified to facts injurious to the State when she testified, among many other things, that appellant had not beaten the deceased, etc., etc. Despite the fact that the predicate was properly established, the court refused the State permission to impeach. Subsequently, the court, after cross-examination of the witness, reconsidered its rulings and allowed the State an opportunity to impeach. When confronted with her prior statement, she admitted many times during her interrogation that what was said there was true and in effect conceded that it was inconsistent with her earlier trial testimony. Under these circumstances, she performed the act of impeachment upon herself. See Hoffman v. State, 514 S.W.2d 248, 251 (Tex.Cr.App.1974).

We conclude that a proper predicate was laid for impeachment and further reject appellant’s claim that the record reflects pre-knowledge by the State of the witness’ testimony given earlier in the trial.

Lastly, appellant complains of the court’s failure to give his special requested charge on accident. See Article 39, Vernon’s Ann.P.C., 1925. We have examined the quoted portions of the record which appellant sets forth in his brief, as well as the entire record, and cannot conclude that the evidence raises the issue of accident, although the issue of negligent homicide may have been raised thereby.

In Stiles v. State, 520 S.W.2d 894 (Tex.Cr.App.1975), this court said:

“The difference between accidental homicide and negligent homicide is whether the act resulting in death was intentionally or unintentionally done. The focus is on the accused’s act, not on the result of his act. Accidental homicide is the result of an unintentional act while negligent homicide may only result from an intentional act.” See also Esparza v. State, 520 S.W.2d 891 (Tex.Cr.App.1975); McKenzie v. State, 521 S.W.2d 637 (Tex.Cr.App.1975); Palafox v. State, 484 S.W.2d 739 (Tex.Cr.App.1972).

The testimony relied upon by the appellant clearly show his acts toward the deceased were intentional, such as pulling her left leg out from under her while attempting to make her stand on her injured right leg. While the testimony referred to might reflect that the act was one of carelessness and negligence, it still was intentional. Appellant’s contention is without merit.

The judgment is affirmed.

ROBERTS, J., concurs in the result.

      . Article 38.11, Vernon’s Ann.C.C.P., provides in part:
      “ . . . a wife or husband may voluntarily testify against each other in any ease for an offense involving any grade of assault or violence committed by one against the other or against any child of either under sixteen years of age


author: GREEN, Commissioner.

text:
    Willie Charles HUNNICUTT, Appellant, v. The STATE of Texas, Appellee.

      No. 49930.

    Court of Criminal Appeals of Texas.
    May 21, 1975.

      Wynn G. Stanton, Dallas (Court-appointed), for appellant.
    Henry Wade, Dist. Atty., James B. Scott, Hugh Lucas and Norman Kinne, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of robbery by assault. Punishment under the provisions of Article 62, Vernon’s Ann.P.C., was assessed at life.

Considering the evidence in the light most favorable to the verdict, the record reflects that at about 5:30 P.M. on August 4, 1971, O. J. Kniffen closed the jewelry store in Dallas of which he was the manager and walked to his car parked in a nearby parking lot. As he unlocked his car and entered it, Joan Elizabeth Bishop raised up in the back seat, put a pistol at his head, and ordered him to drive around the block and then to park in front of the jewelry store. After he did so, he got out of the car, and she followed him with the pistol. A man, whom Kniffen recognized in court as being appellant, came up to him with a pistol and asked Bishop: “Is he cooperating?” She answered “Yes.” Appellant pointed the pistol at Kniffen and had him open the store door. While appellant remained outside the store, Bishop, exhibiting her pistol, forced Kniffen to open the vault and place jewelry of the value of $191,000 in her purse. She had him lie on the floor as she left with the jewelry. The two robbers drove off in his car.

Appellant initially contends that the “Impact” district court in Dallas County in which he states this case was tried was illegally constituted and established in violation of the Texas Constitution and statutes.

The record reflects that this trial took place in Criminal District Court No. 5, Dallas County. Honorable Don M. Dean, Judge of the 195th Judicial District of Texas, presided under proper assignment to “any and all of the Dallas County courts which try felony cases” by the Honorable Dallas A. Blankenship, Presiding Judge, First Administrative Judicial District of Texas. See Art. 200a, Vernon’s Ann.Civ. Stats. No error is shown.

Furthermore, in Zamora v. State, Tex.Cr.App., 508 S.W.2d 819, we expressly upheld the validity of the so-called “Impact District Courts” of Dallas County.

The first ground of error is overruled. See Crawford v. State, Tex.Cr.App., 509 S.W.2d 582; Reed v. State, Tex.Cr.App., 500 S.W.2d 137.

In his second and third grounds, appellant contends that the court erred in permitting the State to impeach its witness Joan Elizabeth Bishop.

Bishop was placed on the witness stand by the State at its case-in-chief. On direct examination, she testified that she had been tried and convicted of the robbery, and that at her trial she had admitted her guilt. Thereafter the following questions were asked by the State, and the following answers were made:

“Q Let me ask you who you were with at the time of the robbery?
“A I was alone at the time of the robbery.
“Q Who was outside the store with you at the time of the robbery?
“A No one.
“Q Who helped you plan the robbery?
“A No one.
“Q Mrs. Barber,1 kind of thought that you might say that. Let me ask you if you remember telling — let me go before — you’re now at the Texas Department of Corrections, aren’t you?
‘A. Yes, I am.
“Q You were brought back to Dallas County Jail with a bench warrant from the District Attorney’s office; is that right?
“A. Yes.
“Q Do you remember telling an officer by the name of J. T. Adamcek that you committed this robbery, and involved in the robbery with you was this Defendant down here, Hunni-cutt ?
“A I remember telling him that I committed the robbery.
“Q Did you tell the officer that you committed it and that this Defendant participated and planned the robbery, and set it all up ?
“A No, I did not.
“Q So you’re denying that you told Officer Adamcek that?
‘A. Yes, I am.
“Q Are you denying too that this Defendant was involved in the robbery, planned it, set it up or helped execute it?
“A I am.”

At the State’s request, a hearing was then had in the absence of the jury. It was developed that at her trial Bishop had admitted her guilt and had stated under oath that appellant planned the robbery and participated in it as a principal. She had also made statements to police officers implicating appellant as principal offender in the robbery. The prosecuting attorney, notwithstanding his impromptu remark when the witness testified that no one had helped her in the robbery, plead surprise that the witness would testify directly contrary to her previous testimony and police statements. He stated to the court that he had never talked to the witness, but that he had bench warranted her from the penitentiary to use her as a witness in reliance on her previous testimony and statements. He placed in evidence, for the record only, a letter he had received from the witness in which she stated that appellant, in a letter to her, had stated that he would “cop” out for a five year sentence with credit for jail time. He argued that he had the legal right to impeach her because of the injurious - testimony she had given in contradiction to her previous statements.

The court overruled appellant’s obj ections duly made, and permitted questions to be asked the witness of her previous statements implicating appellant, to all of which she answered that she had made no such statements, and permitted the State to introduce evidence of her previous testimony and statements to officers. This evidence was properly limited to purposes of impeachment in the charge to the jury. As we stated in Williams v. State, Tex.Cr.App., 521 S.W.2d 250:

“A party may not impeach his own witness unless the witness testifies to facts injurious to that party’s case and the party demonstrates that he was surprised by such testmony. Banks v. State, Tex.Cr.App., 510 S.W.2d 592; Zanders v. State, Tex.Cr.App., 480 S.W.2d 708; Smith v. State, Tex.Cr.App., 479 S.W.2d 311; Wall v. State, Tex.Cr.App., 417 S.W.2d 59.
“To demonstrate surprise, the prosecutor must show prior conversations with the witness or prior statements, outside the presence of the jury. Norwood v. State, Tex.Cr.App., 486 S.W.2d 776; Perry v. State, Tex.Cr.App., 464 S.W.2d 660; Thrash v. State, 170 Tex.Cr.R. 97, 338 S.W.2d 447; Pelton v. State, 167 Tex. Cr.R. 649, 322 S.W.2d 529. The reason for the requirement of surprise is to prevent a party from calling a witness who the party knows will testify adversely, and then, under the guise of impeachment, adduce the testimony which the party would have hoped to elicit from the adverse witness. Cherb v. State, Tex.Cr.App., 472 S.W.2d 273.”

The testimony of the witness that she was acting alone at the time of the robbery, and in which she denied that appellant participated or was in any way involved, was injurious to the State’s case. The State was entitled to rely upon her testmony at the instant trial being consistent with her previous testimony and statements. Floyd v. State, 117 Tex.Cr.R. 384, 36 S.W.2d 739. It was not necessary that the prosecuting attorney talk with the witness before placing her on the stand. McLain v. State, Tex.Cr.App., 383 S.W.2d 407, 414.

It was within the sound discretion of the court, subject to review on appeal for abuse, to determine whether a proper predicate of surprise and injury had been laid. Notwithstanding the statement of the prosecuting attorney that “I kind of thought that you might say that” made when the witness testified that no one had helped her plan the robbery, the proceedings at the hearing before the court reflect that he actually was surprised at her testimony in conflict with and contradicting her prior statements. We conclude that a proper predicate was shown, and that the court did not err in admitting the impeaching evidence. Article 38.28, V.A.C.C.P.; Pelton v. State, 167 Tex.Cr.R. 649, 322 S.W.2d 529; McLain v. State, supra; Perry v. State, Tex.Cr.App., 464 S.W.2d 660, cert. den., 404 U.S. 953, 92 S.Ct. 324, 30 L.Ed.2d 270. See Brown v. State, 523 S.W.2d 238 (Tex.Cr.App.1975).

In his fourth ground, appellant contends that the evidence was insufficient to identify him as one of the robbers.

The complainant Kniffen on direct examination testified that the man in question came within ten feet of him as he got out of his car at the store about 5:40 P.M. on an August day and, in answer to questions on direct examination, he said:

“Q At this point, were you looking at the man, were you able to look at him?
“A I was looking straight at him. When I got out of the car, I was faced that away and, of course, I looked at him.
“Q Mr. Kniffen, let me ask you this if you see that man here in the courtroom today?
“A Yes, that is the gentleman over there.
“Q Seated at the end of the counsel table; is that correct?
“A Yes, Sir.
“MR. LUCAS: Let the record reflect that the witness dentified the Defendant before the jury.
“THE COURT: It may so reflect.”

On cross-examination, he testified that he was “positive” appellant was the man.

The fourth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, J., concurs in result.

      . She-was referred to by the name of Bishop and also Barber.


author: OPINION DOUGLAS, Judge.

text:
    James Bryan WOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 49674.
    Court of Criminal Appeals of Texas.
    May 28, 1975.
    Robert B. Maloney, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, and Robert Whaley, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder without malice. Punishment was assessed by the jury at five years.

Appellant and Henry Porter, the deceased, got into an argument while playing pool in Hanger One Lounge in Dallas. In the fight that followed Porter knocked appellant down and kicked him. The fight was stopped. Appellant left and some thirty minutes later returned with a shotgun. Appellant chased Porter around the parking lot. Porter got into appellant’s car. Appellant fired a deer slug into Porter’s head and killed him. Appellant told the officers that he had thrown the shotgun down and they found it. The sufficiency of the evidence is not challenged.

In two grounds of error appellant contends that the trial court erred in admitting oral statements made by him while he was under arrest and in cross-examining him about such statements. Appellant testified that the deceased got into the car at the Hanger One Lounge and started to drive away and that he struggled with the deceased and the gun discharged. On cross-examination, without objection, appellant admitted making statements to the police after he was arrested. In rebuttal the State called Officer Michael N. Black. Black testified that he arrived at the scene one hour after the shooting and took appellant to the police station. During Black’s testimony the following occurred :

“Q. (Prosecutor) Enroute to the station did the defendant make any statement in regard to the killing and the person killed?
“A. While we were — we were pretty quiet going downtown. I guess about half way down there he made a statement — I made a statement to the defendant, I told him, I said, ‘Well, I guess that guy won’t mess with you any more.’
“Q. And did he respond to that?
“A. Yes, sir, he did. He said, ‘No, that m— f— won’t jack with me any more.’ ”

We have held that a defendant’s oral statement while under arrest is subject to the requirements of Article 38.22, Vernon’s Ann.C.C.P. Garner v. State, 464 S.W.2d 111 (Tex.Cr.App.1971); Butler v. State, 493 S.W.2d 190 (Tex.Cr.App.1973) (with two judges dissenting) ; Martinez v. State, 498 S.W.2d 938 (Tex.Cr.App.1973); Harrison v. State, 491 S.W.2d 920 (Tex. Cr.App.1973); Boyde v. State, 513 S.W. 2d 588 (Tex.Cr.App.1974); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974). The above statement was neither res ges-tae of the offense or the arrest nor did the statement lead to discovery of the gun.

The following occurred during Officer Etley’s testimony:

“Q. (By the prosecutor) Now, at that time, do you know whether or not the defendant was placed under arrest?
“A. Yes, sir, he was.
“Q. All right. Did he make any comments ?
“A. Yes, sir, he did. As soon as Sgt. Almond and I started searching him he said he killed that dude.”

The following occurred during Sgt. Almond’s testimony:

“. . . I immediately jumped out of the car, opening the door between me and him, and put my shotgun on him and told him to come out from behind the truck and drop his shotgun.
“Q. And did he respond to that?
“A. Yes, said, he did. He didn’t have a shotgun. He walked out into the headlights of the car and said, T just shot a dude; don’t kill me.’ ”

During cross-examination, appellant admitted shooting Porter with a shotgun and the following also occurred:

“Q. (Prosecutor) Did you personally kill a lot of people in Viet Nam?
“A. No, sir.
“Q. Did you tell the police officers you did?
“A. Yes, sir, I believe I may have.
“Q. Why would you do that?
“A. I don’t know what all I said; I know that I was talking a lot. I probably could have said that.”

and

“Q. Do you remember repeating those words to Officer C. E. Etley, T just killed a dude?’
“A. No, sir, I am not denying I said it; I don’t remember.”

Appellant also made the following comments to Officer Etley approximately two to three minutes after his arrest:

“. . . ‘I bet the s-- o- - b-don’t try to whip my a- - again.’ ”

The above statement was a spontaneous statement at the time of the arrest and admissible under Article 38.22, Section 1(f), V.A.C.C.P. Dominguez v. State, 506 S.W. 2d 880 (Tex.Cr.App.1974); Smith v. State, 514 S.W.2d 749 (Tex.Cr.App.1974); Moore v. State, 440 S.W.2d 643 (Tex.Cr.App.1969).

In DeLeon v. State, 500 S.W.2d 862 (Tex.Cr.App.1974), the defendant made an oral statement after his arrest. That statement was also contained in a written confession. This Court held that the appellant in DeLeon was not harmed by the admission of the oral statement since the same statement was contained in the written confession.

In the instant case appellant admitted killing Porter. He also testified that he did not deny that he told Officer Etley that he had “klled a dude.” Appellant also made other incriminating statements after his arrest. Appellant’s res gestae statement to Officer Etley that “I bet that s.o.b. don’t try to whip my a-- again” was virtually identical to the statement he made to Officer Black approximately one hour after his arrest,

We conclude that the admission of appellant’s statement to Officer Black was not such an error as to cause a reversal.

No reversible error has been shown. The judgment is affirmed.

      . Another ground of error that the court erred “in permitting certain ‘have you heard’ questions” has been considered and we perceive no error. It is fully discussed as Part II of this opinion and is per curiam, not for publication and not to be cited as authority. See Thompson v. State, 514 S.W. 2d 275 (Tex.Cr.App.1974).


author: ODOM, Judge.

text:
    Lecoy STRICKLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 49571.
    Court of Criminal Appeals of Texas.
    May 21, 1975.
    Rehearing Denied June 11, 1975.

      D. C. Gandy (Court-appointed on appeal only), Fort Worth, for appellant.
    Tim Curry, Dist. Atty., John Hill and Clint Starr, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S MOTION FOR REHEARING

ODOM, Judge.

Our opinion on original submission is withdrawn.

This is an appeal from an order revoking probation. Appellant was convicted of felony theft and placed on two years’ probation. Probation was revoked for appellant’s failure to report to his probation officer as directed in his conditions of probation.

Motion to revoke was filed in November 1972 and a warrant of arrest issued the same day. An amended motion to revoke was filed, and a second warrant issued, in November 1973. The probationary period expired in December 1973. Appellant was arrested on the warrants in July 1974 and probation was revoked in August 1974.

The motion was filed and warrant issued before expiration of the probationary period. Therefore, the court had jurisdiction to hear the motion. Coffey v. State, Tex.Cr.App., 500 S.W.2d 515; Ortega v. State, Tex.Cr.App., 414 S.W.2d 465; Ex parte Fennell, 126 Tex.Cr.R. 286, 284 S.W.2d 727. The issue raised by appellant is whether the State made a diligent effort to apprehend him and to hear and determine the claimed violation such as to authorize revocation after the probationary period had ended. Stover v. State, Tex.Cr.App., 365 S.W.2d 808. The credibility of the witnesses was for the trial judge to assess. E. g., Farmer v. State, Tex.Cr.App., 475 S.W.2d 753.

Appellant testified, among other things, that in November 1972, when the first motion to revoke was filed, he was living at 210 New York Street in Fort Worth, his address at the time of the hearing. Although he also testified that he gave that address to his probation officer, the testimony of the probation officer was that the last address appellant reported to him was 3100 East Berry Street, which was reported in May 1972. The probation officer further testified that appellant’s most recent address on record, the East Berry address, was the one supplied the sheriff’s office when the motion to revoke was filed and the warrant issued.

In light of his failure to report his change of address to the probation office, we cannot say that the delay of eight months from the issuance of the second warrant until its execution constituted a lack of diligent effort to apprehend appellant.

The State’s motion for rehearing is granted and the judgment of reversal is set aside and the judgment is affirmed.

      . One condition of probation was that appellant notify his probation officer of any change in address or employment within three days of such change.


author: EVANS, Justice.

text:
    Allie B. MARTIN, Sr., Appellant, v. Carole MARTIN, Appellee.
    No. 16474.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 24, 1975.
    Smith, Schulman, Rawitscher & Wett-man, Bruce W. Wettman, Houston, for appellant.
   EVANS, Justice.

On November 20, 1974 the Court of Domestic Relations No. 3 of Harris County, Texas, held appellant, Allie B. Martin, Sr., to be in contempt of a prior order of the court by reason of Martin’s failure to return his son, Allie B. Martin, Jr., to the custody of Martin’s former wife, Carole Martin Yarborough, upon expiration of the period of visitation specified in the order. The court ordered Martin confined for a period of thirty days but specified that he might purge himself of the contempt by paying costs and attorney’s fees as decreed by the court, and provided that he did not cause the child to be removed from Harris County within two years from the date of the order except upon order of the court. The contempt order also provided that Martin’s visitation privileges were suspended until June 1, 1975, and designated the details of the visitation privileges he would have upon their reinstatement. The order further provided for Martin to commence making child support payments in accordance with earlier orders of the court and stated that “any act or omission” by Martin within two years from the date of the entry of the order contrary to its terms would cause writ of commitment to issue without further application.

In Martin v. Martin, 519 S.W.2d 900 (Tex.Civ.App.1975), we held that this court had jurisdiction to review the contempt order insofar-as it is purported to modify or reform previous orders of the court as to the custody of the child, and directed that the order be suspended pursuant to Section 11.19, Texas Family Code, V.T.C.A., pending further order of this court, insofar as its provisions with respect to child custody and visitation privileges constituted a modification or reformation of orders previously entered by the court as to such matters.

Section 14.08 of the Texas Family Code sets forth the procedure by which a party affected by court order establishing the terms and conditions for access to the child may petition the court for modification of that order. The section provides that such petition must allege that the circumstances of the child have materially changed since the entry of the original order and that the facts supporting these allegations must be sworn to by the party seeking modification. The section further provides for hearing of the matter and requires notice to all parties. The record of the case before us contains no pleading which would satisfy the requirements of this statute and which would notify Allie B. Martin, Sr. that a hearing would be held as to such matters. A review of the statement of facts reflects that no evidence was offered with respect to these matters. Under the circumstances present here, we hold the trial court was without authority to modify or reform the terms of the visitation privileges set out in its former order. Martin v. Martin, supra; Seber v. Glass, 258 S.W.2d 122 (Tex.Civ.App.—Fort Worth 1953, no writ); Livingston v. Nealy, 382 S.W.2d 511 (Tex.Civ.App.—Corpus Christi 1964, ref’d n. r. e.).

The trial court did have authority to determine if Allie B. Martin, Sr. had violated its order concerning visitation privileges and upon finding that he had, to adjudge him in contempt and to fix his punishment by confinement for a period of thirty days with provision that he might purge himself by paying costs and attorney’s fees as decreed. The trial court’s order in that respect was proper and was nonappealable, so we take no action as to that portion of the order. The trial court was without authority, however, to enter the remainder of its order and that portion of its order is reversed and rendered. Costs are taxed against Carole Martin Yarborough.


author: KLINGEMAN, Justice.

text:
    Wolf FURMAN, Appellant, v. Robert O. SANCHEZ, Administrator of the Estate of Juanita Sanchez, Deceased, Appellee.
    No. 15391.
    Court of Civil Appeals of Texas, San Antonio.
    April 30, 1975.

      Doyle L. Coatney, San Antonio, for appellant.
    Allan A. Black, Guy Bonham, San Antonio, for appellee.
   KLINGEMAN, Justice.

This suit was filed by appellee, Robert O. Sanchez, as administrator of the Estate of Juanita Sanchez, Deceased, against Wolf Furman and Alberto Martinez and wife, Gregoria Martinez, to have a sale by Furman of certain property in Bexar County, Texas, set aside and for specific performance of an executory contract of sale; or in the alternative for damages as a result of such sale. The property was the subject of an executory contract of sale between Furman and Mrs. Sanchez, dated June 2, 1964, under which Mrs. Sanchez was to make certain stipulated monthly payments. Mrs. Sanchez died intestate on the 26th day of August, 1970; and, at such time, some monthly payments under such contract were delinquent. After the death of Mrs. Sanchez, such contract was formerly cancelled and terminated by Fur-man on or about April 7, 1971. Furman took possession of such property and entered into another executory contract of sale covering such property with the Mar-tinezes on April 15, 1971. Robert O. Sanchez was appointed administrator of the estate of Mrs. Sanchez on March 19, 1973, and shortly thereafter such administrator filed the present suit in the District Court of Bexar County, Texas. The trial court, without a jury, granted judgment for appellee against Furman in the amount of $5,143.08 and denied any and all other relief prayed for by any of the parties. The Martinezes did not perfect an appeal and are not involved in this appeal. Extensive findings of fact and conclusions of law were made by the trial court.

The findings of fact, which are set forth in the footnote in some detail, set forth generally the material factual background. Other revelant facts are:

(a) the contract between Mrs. Sanchez and Furman provided for monthly payments in the amount of $45.00 commencing on June 8, 1964, with a total consideration of $4,490.00 to be paid by the buyer.

(b) Mrs. Sanchez made payment from June 8, 1964, to May 8, 1970.

(c) No further payments were made after May 8, 1970, and at the time of her death, several monthly payments had not been made.

(d) No attempt to cancel said contract was made prior to Mrs. Sanchez’s death.

(e) The property was not used by Mrs. Sanchez as her homestead, and she rented such premises to third parties.

(f) The contract provided that in the event of a default by the buyer, the seller could declare the contract null and void, consider all prior payments as rent, retain possession of the premises and give notice to the buyer by means of a letter addressed to 206 S. San Manuel, the location of the property.

(g) The seller, at his option, could declare the whole amount of indebtedness then owing due, and could enforce specific performance of such contract.

(h) After the death of Mrs. Sanchez, Furman contacted the plaintiff herein through his attorney on several occasions in an attempt to obtain payment on the contract.

(i) Mr. Robert O. Sanchez testified that he was aware that payments on the property were in default, and that neither he or the other heirs made any payments on the contract.

(j) Furman testified that he told Sanchez that the city was going to tear the house down, and that Sanchez told him that he could do whatever he wanted to do with the property.

(k) The contract between Mrs. Sanchez and Furman was never recorded.

(l) Alberto Martinez, the subsequent purchaser of the property, testified that at the time he entered into the contract of purchase with Furman, he had no knowledge of any contract of sale with anyone else on the property or that anyone was making any claim to such property.

(m) The property was unoccupied at the time the Martinez contract was entered into.

(n) The contract of sale with Martinez, which was dated April 15, 1971, provided for the total consideration of $4,990.00 payable in monthly installments of $55.00 per month.

(o) Martinez testified that he paid $100.00 down and had regularly made the monthly payments. He further testified that he had made improvements to the property, and there was introduced into evidence an exhibit listing improvements in the amount of $457.44. Martinez testified that, in addition to these improvements, he also installed a water heater at a cost of $110.00 to him.

By his first three points of error, appellant complains that the trial court erred in concluding that a cancellation of the contract of sale between Furman and Mrs. Sanchez could not be had without an administration on the estate of the deceased, and if such a cancellation was attempted within four years after the death of Mrs. Sanchez, it was subject to be voided and set aside upon the application of the administrator. By his last two points of error, appellant complains of error in the amount of damages awarded.

The central issue to be decided in this case is whether or not the seller of real property under an executory contract of sale in default must, in order to terminate the contract of a deceased buyer, proceed through an administration of the estate of the deceased buyer.

Under the generally accepted rule in the United States, a purchaser, under an exec-utory contract to purchase land acquires equitable title to the land at the time of the execution of the contract. Early Texas cases made a distinction between equitable rights and equitable title with regard to such contracts. It was held that a purchaser under such contract had only an equitable right so long as the purchase price remained unpaid, and he could not resist his seller’s action for possession. On the other hand, when the purchaser had fully complied, he obtained equitable title and could demand a conveyance from a vendor. Hemming v. Zimmerschitte, 4 Tex. 159 (1849). Subsequent cases have not always followed this early distinction. The Commission of Appeals held in 1922 that the vendee of a contract of purchase, especially where he goes into possession of the property, is vested with the equitable title from the date of the contract, or in any event from the date he takes possession. Leeson v. City of Houston, 243 S.W. 485 (Tex. Comm’n App. 1922, judgment adopted). See also Alworth v. Ellison, 27 S.W. 2d 639 (Tex.Civ.App.—Eastland 1930, writ ref’d) ; but cf. Johnson v. Wood, 138 Tex. 106, 157 S.W.2d 146 (1941). Whether speaking in terms of equitable right or equitable title, the Texas cases have generally given to the purchaser all the rights and incidents of title usually accorded to the holder of full equitable title in other states. Dean, Real Property-Executory Land Contracts-Passage of Equitable Title, 11 Sw.L.J. 384 (1957); City of Garland v. Wentzel, 294 S.W.2d 145 (Tex.Civ.App.—Dallas 1956, writ ref’d n. r. e.); Hughes v. Groshart, 150 S.W.2d 827 (Tex.Civ.App.—Amarillo 1941, no writ) ; Taylor v. Herrin, 127 S.W.2d 945 (Tex.Civ.App.—Galveston 1939, no writ); Dimmitt Elevator Company v. Carter, 70 S.W.2d 615 (Tex.Civ.App.—Amarillo 1934, no writ) ; Ingram v. Central Bitulithic Company, 51 S.W.2d 1067 (Tex.Civ.App.—Waco 1932, writ ref’d) ; Leonard v. Kendall, 5 S.W.2d 197 (Tex.Civ.App.—Beaumont 1928, writ dism’d); Rives v. James, 3 S.W.2d 932 (Tex.Civ.App.—San Antonio 1928, writ dism’d); Leeson v. City of Houston, supra; Armstrong v. Gifford, 196 S.W. 723 (Tex.Civ.App.—San Antonio 1917, no writ) ; Texas & P. Ry. Co. v. ,7 'lard, 127 S.W. 1152 (Tex.Civ.App.—1 ); Matula v. Lane, 56 S.W. 112 (Tex.Civ.App.—1900).

Appellee contends that irrespective of whether you regard the purchaser’s interest as an equitable title or an equitable right, the trial court reached the correct conclusion in the case and that it is controlled by the decision of the Supreme Court in Pearce v. Stokes, 155 Tex. 564, 291 S.W.2d 309 (1956). In such case, the Supreme Court held that a sale, made under a deed of trust after the death of a grantor and before administration had been sued out, or before the time in which an administration could be sued out had elapsed, is suspended and held in abeyance until an administration is had, when it becomes ineffectual to convey the title, or until the passing of the period when the administration could be had, at which time it becomes effectual to pass title. Appellant urges that the Stokes case involved a foreclosure under a mortgage and not a cancellation under an executory contract of sale and that the same rule is not applicable.

The crucial question to be answered by us is whether or not the deceased vendee under an executory contract of sale of land has the same protection and is entitled to the same legal and equitable relief as a vendee under a sale where a vendor’s lien and deed of trust are obtained by the vendor. We think the same rule should be applied to both.

Rule 37, Tex.Prob.Code Ann. (1956), reads in part as follows:

“ . . . whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but with the exception aforesaid shall still be liable and subject in their hands to the payment of the debts of the intestate; but upon the issuance of letters testamentary or of administration upon any such estate, the executor or administrator shall have the right to possession of the estate as it existed at the death of the testator or intestate, with the exception aforesaid; and he shall recover possession of and hold such estate in trust to be disposed of in accordance with law.”

Appellant urges that in the situation where a vendor conveys land and retains a mortgage in the form of a vendor’s lien and deed of trust, he is the holder of a promissory note with the mortgage on the real property given to secure the payment of the underlying debt and that an administration is the proper way to collect such debt; but that we do not have such a debt situation here. Examination of the execu-tory contract of sale here involved reveals that the purchase price for the property is the sum of $4,490.00, and that the deferred consideration bears interest at the rate of 8% per annum. In the event of default, the vendor has these options: (1) he can declare the contract cancelled and terminated; (2) he may declare the whole amount of the indebtedness due at once; (3) he can enforce specific performance of the contract. These are virtually the same rights and remedies that a vendor-lienor has. In Whiteside v. Bell, 162 Tex. 411, 347 S.W.2d 568 (1961), the Court held that a deed conveying land and reserving a lien for unpaid purchase money is an executory contract which ripens into title when the purchaser has performed his obligation; that upon a purchaser’s default, the vendor-lienor may sue for debt and foreclosure, or may rescind by agreement with the purchaser, by re-entering land, or by repudiating original sale by selling to a third party. In the case before us, the vendor gave notice of cancellation, entered into possession of the property, and made a sale to a third party.

Whether the interest of the purchaser under an executory contract of sale be regarded as an equitable title or an equitable right, in cases involving a termination of a deceased purchaser’s right of title in the property, we see no compelling reason for making any distinction between a termination of such rights or title by foreclosure under a mortgage, or a termination of such rights or title by cancellation under a contract of purchase, and that in the interest of uniformity of holding the rule applied in the Stokes case should be applicable to both situations.

We have concluded as a matter of policy and in the interests of justice that the rule adopted by the Supreme Court in Pearce v. Stokes, supra, should also apply in the instant case and that the trial court properly held that after the death of Mrs. Sanchez the cancellation of the contract of sale between Furman and Mrs. Sanchez cancelling all of her equitable rights, title and interests in the property could not be had without an administration upon the estate of deceased and that the attempted cancellation within four years after her death was subject to be voided and set aside upon application of the administrator of her estate.

The trial court found that the cancellation by Furman of such contract of sale with Mrs. Sanchez, and forfeiture of her rights in the property on April 15, 1971, was wrongful and illegal, predicated upon its holding that Furman, after the death of Mrs. Sanchez, in order to terminate the contract had to proceed through an administration on the estate of such purchaser. Based upon such wrongful cancellation, taking and sale of the property, the trial court correctly found appellant to be entitled to damages in the amount of $6,000.00, the market value of the property on April 15, 1971. However, we find no justification for the additional award to appellant of rents in the sum of $2,035.00, the rental value of the property from April 15, 1971, to the date of the judgment. The trial court denied any recovery against the Martinezes, and in no way cancelled the Martinez-Furman contract of April 15, 1971. Appellant had no title, legal or equitable, to the property after April 15, 1971. Appellant was awarded the market value of the property on April 15, 1971. Under the record, we do not see how appellant was entitled to any rents on the property.

It is clear from the record that Robert O. Sanchez, the administrator who brought this suit, and an heir of Mrs. Sanchez, was aware prior to April 15, 1971, that there were a number of delinquent monthly payments under the contract. It further appears from the record that during the period of time prior to April 15, 1971, Furman was attempting to obtain payment under the contract, but no payments were made either by Robert O. Sanchez or any of the other heirs. Furman testified that when the city was about to condemn the property and tear it down that Robert O. Sanchez was notified and that he told Furman to do what he wanted to about the property. Moreover, although the present adminstrator, Robert O. Sanchez, knew prior to April 15, 1971, of delinquencies under the contract, no administration was taken out until May 19, 1973, a period of almost two years. It is clear that during this period of time no attempt was made by appellants to pay up said contract in whole or in part, and that no payments were made and no taxes were paid. Under the record, we find no justification for the award of rents to appellant.

The judgment is reformed so as to delete therefrom the award to appellants of rents in the sum of $2,035.00 which will reduce the judgment to the sum of $3,108.08. In all other respects, the judgment is affirmed. Costs are awarded ¾ against appellant and 1/3 against appellee.

      . Such amount is based on a market valuation of $6,000.00 for the property, and rents in the amount of $2,035.00, aggregating $8,035.-00; less an offset in favor of Furman in the sum of $2,891.92.

      . Such findings of fact and conclusions of law are summarized as follows: Findings of fact:
      (1) On June 2, 1964, Furman and Mrs. Sanchez entered into a contract of sale on the subject property, under which Mrs. Sanchez was to pay a total sum of $4,490.00 in stipulated monthly installments.
      (2) On August 26, 1970, Mrs. Sanchez died intestate.
      (3) On April 7, 1971, Furman formally cancelled the contract.

        (4) Furman thereafter took possession of the property and on April 15, 1971, entered into another executory contract of sale on such property to Alberto it. Martinez and wife Gregoria Martinez.
      (5) Furman had knowledge of Mrs. Sanchez’s death prior to his cancellation of the contract.
      (6) The reasonable market value of the property on the date of sale to the Martinezes was $6,000.00.
      (7) At such time, there was a balance of $2,891.92 owing by Mrs. Sanchez to Furman.
      (8) The reasonable rental value of the property is $55.00 a month which, calculated from the date of the execution of the Martinez contract to the date of the judgment, aggregates $2,035.00.
      (9) On March 19, 1973, Letters of Administration on the estate of Mrs. Sanchez were granted to Robert O. Sanchez, and on May 22, 1973, the administrator filed suit against Furman and the Martinezes to have the Fur-man-Martinez contract of sale set aside and, in the alternative, for damages.
      (10) The Martinezes have had possession of said property since April 15, 1971.
      (11) Administration on the estate of Mrs. Sanchez is still pending, and there are claims outstanding.
      (12) Furman did not attempt to terminate the Furman-Sanchez contract prior to her death.
      (13) Robert O. Sanchez individually had knowledge prior to April 7, 1971, that the contract between Mrs. Sanchez and Furman was in default, and Furman had contacted Mr. Sanchez’s attorney on several occasions attempting to secure payment under his contract.
      (14) The property was unoccupied on April 15, 1971.
      Conclusions of law:
      (1)The contract between Mrs. Sanchez and Furman was an executory agreement to convey the property involved upon completion of all payments and obligations by Mrs. Sanchez.
      (2) No legal or equitable title to the property passed to Mrs. Sanchez, her administrator, or her heirs, but only the equitable right to enforce the contract to convey the legal title upon the compliance of the terms of said contract and the payment of the consideration of the purchase.
      (3) The administrator of the estate of Mrs. Sanchez was entitled to have the cancellation of the contract of sale with Furman, and the forfeiture of Mrs. Sanchez’s rights thereunder, set aside.
      (4) The cancellation by Furman of such contract with Mrs. Sanchez and the forfeiture of her rights in the property, on April 15, 1971, was wrongful and illegal.
      (5) Upon the death of Mrs. Sanchez, Fur-man was relegated to the method required by law in cases of administration to terminate the rights of the deceased, Mrs. Sanchez, in the contract of sale.
      (6) Appellee is entitled to recover damages based on the fair market value of the subject property on the 15th day of April, 1971.
      (7) Appellee is also entitled to recover damages based on the rental value of the property from April 15, 1971, for a period of 37 months at $55.00 per month, for a total of $2,035.00.
      (8) Furman is entitled to an offset credit on said amount of damages in the sum of $2,891.92.
      (9) The cancellation of such contract of sale terminating an equitable right which Mrs. Sanchez had in the property could not be had without administration on the estate of the deceased, and if such contract was cancelled within four years after her death without administration proceedings, such cancellation was subject to be voided and set aside upon the application of the administrator of her estate.

      . Later cases applying the same rule are American Savings and Loan Association of Houston v. Jones, 482 S.W.2d 62 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n. r. e.) ; Cole v. Franklin Life Ins. Co., 93 F.2d 620 (5th Cir.1937).

      . The exception aforesaid reads: “ . except such as is exempted by law . . .


text:
    TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant, v. The NATIONAL SPORTSMAN’S FRATERNAL ORDER OF TEXAS, INC. et al., Appellees.
    No. 16440.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    March 6, 1975.
    Rehearing Denied April 10, 1975.
    John L. Hill, Atty. Gen. of Texas, Larry F. York, Joe B. Dibrell, Max P. Flusche, Jr., David M. Kendall, Asst. Attys. Gen.,Austin, for appellant.
    Kenneth M. Hoyt, Houston, for appel-lees.
   EVANS, Justice.

The Texas Alcoholic Beverage Commission appeals from the trial court’s judgment, entered after a nonjury trial, which set aside the Commission’s order denying certificate of exemption to the Sportsman’s Fraternal Order of Texas, Inc.

In its judgment the trial court found that the Sportsman’s Fraternal Order of Texas, Inc. was in fact a fraternal organization and that the Commission lacked authority to refuse an exemption certificate to a fraternal organization “before or without finding that the organization is not fraternal in nature.”

Article 666-6, Tex. Penal Code Aux. Laws (1974), the Texas Liquor Control Act, designates the functions, powers and duties of the Texas Alcoholic Beverage Commission. Among other responsibilities the Commission is charged with the supervision, inspection and regulation of every phase of the business of manufacturing, sale, distribution and possession of alcoholic beverages in this state and for such purposes is vested with power and authority to prescribe “all necessary rules and regulations.” It is given the authority to require filing of reports and other data by persons engaged in any phase of the alcoholic beverage business and to supervise and regulate all licensees and permittees. In such respect it is empowered to grant, refuse, suspend or cancel permits or licenses for the purchase, transportation, importation, sale or manufacture of alcoholic beverages “or other permits in regard thereto.” It is further empowered to exercise “all other powers, duties and functions” conferred by the act and “incidental, convenient, or necessary to enable it to administer or carry out any of the provisions” of the act.

Article 666-11 of the Act provides that the Commission or its Administrator may refuse to issue a permit to any applicant “if it has reasonable grounds to believe and finds . . . to be true” any of some sixteen designated conditions affecting the applicant’s status. In its brief the Administrator states that the Commission, in the instant case, based its order refusing to issue exemption certificate to the Sportsman’s Fraternal Order of Texas, Inc. upon finding to be true the following three grounds set forth in Article 666-11 of the act:

“(3) That the applicant has failed to answer or has falsely answered or has incorrectly answered any of the questions in his original application or any renewal application.
“(4) That the applicant is indebted to the State for any taxes, fees, or payment of penalties imposed by this Act or by any rule or regulation of the Commission.
“(5) That the applicant is not of good moral character, that his reputation for being a peaceable, law-abiding citizen in the community where he resides is bad, or that he is under twenty-one (21) years of age.”

There is no statement of facts before us and the Commission does not attack the trial court’s finding that the Sportsman’s Fraternal Order of Texas, Inc. is in fact a fraternal organization as defined in the act. The Administrator’s sole point of error is that the trial court erred in finding that the Commission did not have authority to refuse issuance of an exemption certificate unless it first found that the organization was not fraternal in nature.

Article 666-15e of the Liquor Control Act provides for the registration and regulation of “private clubs”. The term private club is defined as “an association of persons, whether unincorporated or incorporated under the laws of the State of Texas, for the promotion of some common object and whose members must be passed upon and elected as individuals, by a committee or board made of members of the club.”

Article 666-lSe, subsection 12, defines a “fraternal organization” and exempts such an organization from certain specified requirements applicable generally to private clubs. For example, a fraternal organization is not required to pay the permit fee imposed on private clubs and is not required to maintain a locker or pool system of liquor storage.

Article 666-15e, subsection 12(d) provides as follows:

“All other provisions of Section 15(e) of Article I, Texas Liquor Control Act, as amended, and of Section 20d of Article I, Texas Liquor Control Act and all other provisions of the Texas Liquor Control Act, shall apply to any such organization, except that the requirement that such club shall hold a Private Club Registration Permit shall be satisfied by a certificate issued by the Commission to the effect that such club is an exempt organization under the provisions of this subsection.”

In our opinion the language of the statute manifests an intent on the part of the legislature that fraternal organizations shall be subject to all provisions of the Act except only insofar as specifically exempt therefrom. It is our view that the exception stated in this subsection means only that a fraternal organization which holds a validly issued exemption certificate does not also have to hold a Private Club Registration Permit. We do not construe the provisions of Article 666-15e as abrogating the Commission’s responsibility with respect to the initial issuance of exemption certificates under Article 666-11 of the act.

The Texas Liquor Control Act “is intended as an exercise of the public powers of the State to protect the health, welfare, peace and temperance of its people, and all of its provisions are to be liberally construed for the accomplishment of that purpose. Munoz v. City of San Antonio, 318 S.W.2d 741 (Tex.Civ.App.—San Antonio 1958, writ dism’d w. o. j., 159 Tex. 436, 321 S.W.2d 573); Morgan v. Texas Alcoholic Beverage Commission et al, 519 S.W.2d 250 (Tex.Civ.App.—Texarkana, 1975, no writ). “The right to possess and use alcoholic beverages is not an inherent right, but a highly guarded privilege surrounded by many stringent regulations.” State v. Harris, 342 S.W.2d 177 (Tex.Civ.App.—Dallas 1960, no writ).

We sustain the Commissioner’s point that the trial court erred in finding that the Commission lacked authority to refuse to issue exemption certificates except upon first finding that the Sportsman’s Fraternal Order of Texas, Inc. was not fraternal in nature. We further find that subd. 12(d) of Article 666-15e is constitutional and is not overbroad in its scope as contended by Sportsman’s Fraternal Order of Texas, Inc.

The judgment of the trial court is reversed and remanded for determination as to whether the decision of the Commissioner is reasonably supported by substantial evidence. Morgan v. Texas Alcoholic Beverage Commission, supra; Texas Alcoholic Beverage Commission v. National Sportsman’s Fraternal Order of Texas, Inc., 495 S.W.2d 45, 49 (Tex.Civ.App.—Houston, no writ). For the reasons stated we deny the motion of Sportsman’s Fraternal Order of Texas, Inc., filed pending this appeal seeking injunctive relief and writ of mandamus to require issuance of the exemption certificates as directed by the trial court’s judgment.

Reversed and remanded.

ON MOTION FOR REHEARING

Upon motion for rehearing, our attention has been directed to certain matters which, in our opinion, it would be appropriate to correct. In our original opinion we referred to the grounds stated in appellant’s brief as a basis for the Administrator’s order to be Article 666-11, Tex. Penal Code Aux. Laws (1974), Subparagraphs (3), (4) and (5), when actually the grounds should have been referred to as (3), (5) and (6). The omitted ground (6) which should have been listed is as follows:

“(6) That the place or manner in which the applicant may conduct his business is of such a nature which, based on the general welfare, health, peace, morals, and safety of the people and on the public sense of decency, warrants a refusal of a permit.”

Additionally, the style of the case on appeal should be corrected to reflect the name of the petitioner to be that shown in its petition contained in the transcript: The National Sportsman’s Fraternal Order of Texas, Inc., and it is so ordered that the style of the case indicate this change.

We have considered the contentions advanced by appellees’ motion for rehearing and have determined that such motion must be overruled.


author: RALEIGH BROWN, Justice.

text:
    Preston SPRAY et ux., Appellants, v. Johnnie STASH and Senter and Senter Real Estate, Appellees.
    No. 4768.
    Court of Civil Appeals of Texas, Eastland.
    April 18, 1975.
    Rehearing Denied May 16, 1975.
    Larry S. Parnass, Parnass & Hill, Irving, for appellants.
    Stanley P. Wilson, McMahon, Smart, Wilson, Camp, Lee & Surovik, Abilene, for appellees.
   RALEIGH BROWN, Justice.

This is a summary judgment case. Preston Spray et ux., Beatrice Spray, sued Sen-ter and Senter Real Estate, a real estate brokerage firm and its agent, Johnny Stash, for damages for alleged misrepresentations in a real estate transaction. The Sprays contend Stash’s misrepresentations to purchasers of their land resulted in a recission of the sale in a suit brought by the purchasers against them, Senter and Senter and its agent, Stash. By cross-action, Senter and Senter sought judgment for unpaid balance of an installment promissory note in the original sum of $3,600 plus attorneys’ fees.

The record reflects Spray and wife, with the efforts of Stash, sold property to Lloyd and Helen Randolph. Shortly after the sale, the Randolphs became discontented with the land because of a water drainage problem. They sued Spray and wife, Senter and Senter and Stash seeking recission of the contract of sale. The basis of their suit was that misrepresentations had been made to them concerning the flooding problem. The defendants answered asserting that full disclosure as to the water problem had been made. Prior to submission to the jury in that case, a non-suit was taken as to Senter and Senter and Stash. Based on the jury’s verdict, judgment was entered favoring the Randolphs. A settlement agreement was then entered into between the Sprays and the Ran-dolphs, a new trial granted, and an order of dismissal with prejudice entered. Spray and wife then instituted the present proceedings.

The trial court granted summary judgment for Senter and Senter Real Estate and Johnnie Stash. Preston Spray and wife, Beatrice, appeal.

The first point of error urged by Spray is:

“The trial court erred in granting summary judgment for defendant because the defendants’ motion for summary judgment did not meet the requisite qualifications of specificity under Texas Rules of Civil Procedure, rule 166-A(c).”

Rule 166-A, as amended effective January 1, 1971, reads in part as follows:

“ . . . The motion for summary judgment shall state the specific grounds therefor.”

The motion urged by Senter and Senter and Stash contained as grounds therefor, the following:

“That based upon the affidavit attached hereto and upon the pleadings, the admissions and the interrogatories on file and the answers thereto, there is no genuine issue as to any material fact involved in this cause and said defendants and each of them are entitled to judgment as a matter of law, that the plaintiffs take nothing by their suit and that the defendants and each of them recover their costs; and that Super Speed Racing, Inc., doing business as Senter and Senter Real Estate, is also entitled to judgment upon its cross-action in the amount of $2,294.71 plus reasonable attorneys’ fees and interest upon both such amounts, as well as all costs by it incurred.”

Although the motion for summary judgment of Senter and Senter Real Estate and Johnnie Stash fails to meet the standard of specificity as required by Rule 166-A, we hold such requirement may be waived. The record reflects no exception was taken by Spray as to the specificity of the defendant’s motion, therefore, the specificity requirement is waived. Rule 90, T.R.C.P.; Maberry v. Julian, 479 S.W2d 770 (Tex.Civ.App.—Dallas 1972, writ ref. n. r. e.); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962).

The point of error is overruled.

The Sprays next argue there are genuine issues of fact. The record establishes that in response to request for admissions in the case at bar, the Sprays admitted the matters contained in their pleadings in the cause brought by the Randolphs against them, Senter and Senter, and Stash were true and correct. Such pleadings contain the following allegations:

“Spray and Senter would show the Court and jury that the Randolphs received actual notice of a water problem existing with regard to the land purchased from the Sprays by the Randolphs given to the Randolphs by the Sprays and Johnny Stash and surrounding neighbors of the land, and that such notice given to the Randolphs by Sprays, Stash and the neighbors placed a duty upon Randolph to inquire as to the extent and nature of the water problem existing with regard to the land he purchased from Third Party Defendants Spray.”

As stated in American Title Company v. Smith, 445 S.W.2d 807 (Tex.Civ.App.—Houston (1st Dist.) 1969, no writ):

“Admissions of fact made in response to a formal request for admissions under Rule 169, Texas Rules of Civil Procedure, constitute judicial admissions, and the party who has formally admitted a fact cannot introduce evidence to the contrary. Thornell v. Equitable Life Assurance Society of U. S., 385 S.W.2d 716 (Tex.Civ.App.—Texarkana (1964); McCormick v. Stowe Lumber Company, 356 S.W.2d 450 (Tex.Civ.App.—Austin 1962, error ref. n. r. e.); Pacific Finance Corporation v. Rucker, 392 S.W. 2d 554 (Tex.Civ.App.—Houston 1965).”

The court in Sprouse v. Texas Employers’ Insurance Association, 459 S.W.2d 216 (Tex.Civ.App.—Beaumont 1970, writ ref. n. r. e.), states:

“A ‘judicial admission’ is a conclusive admission as long as it remains in the case. Thornell v. Equitable Life Assurance Society of United States, 385 S.W. 2d 716 (Tex.Civ.App.—Texarkana, 1964, no writ).”

See also Browning, Admission, 42 Texas L.Rev. 723 (1964).

The Sprays have judicially admitted that both they and Stash gave the Ran-dolphs actual notice of the water problem existing with regard to the land purchased. Such admission is binding on the Sprays in the case at bar. Therefore, there can be no issue of fact as to whether Johnnie Stash made an improper misrepresentation to the Randolphs concerning the water problem in the present cause.

Our Supreme Court in Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970), stated the rule to be followed in rendering or affirming a summary judgment as follows:

“In such cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.”

An application of the rule to the case at bar requires an affirmation of the trial court. We have considered all points of error and overruled them.

The judgment is affirmed.


author: COULSON, Justice.

text:
    Jack Gordon DUCOFF, Appellant, v. Gloria L. DUCOFF, Appellee.
    No. 1129.
    Court of Civil Appeals of Texas, Houston (14th Dist.).
    April 30, 1975.
    Rehearing Denied May 21, 1975.

      Bernard L. Chanon, Houston, for appellant.
    David J. Hittner, Glassman & Hittner, Houston, for appellee.
   COULSON, Justice.

This is an appeal by Jack Gordon Du-coff from an order of the Court of Domestic Relations granting a modification in the parent-child relationship.

By decree entered September 2, 1971, Gloria L. Ducoff was granted a divorce from Jack Gordon Ducoff, and custody of the two children of the marriage. The divorce decree ordered that Jack Gordon Du-coff pay $125 per month per child for the support of said children.

On May 23, 1974, Gloria L. Ducoff instituted suit against Jack Gordon Ducoff (respondent or appellant) seeking an increase in child support. The respondent answered and opposed the requested increase.

After a hearing, at which both of the parties testified and were represented by counsel, the trial court entered an order, dated July 29, 1974. Jack Gordon Ducoff was ordered to pay $325 per month for the support of the two minor children. Jack Gordon Ducoff has perfected his appeal from that order.

The appellant states as his first point of error that: “The trial court erred in failing to require an expressed waiver of a statement of facts by the parties in compliance with Section 11.14(d) of the Family Code.”

The appellant’s first point of error refers to Tex. Family Code Ann. § 11.14(d), V.T.C.A. (1975), which relates to suits affecting the parent-child relationship and provides :

A record shall be made as in civil cases generally unless waived by the parties with the consent of the court.

Tex. Family Code Ann. § 11.14(d) became effective January 1, 1974.

A court reporter was not present during the hearing on the application for an increase in child support. Neither party requested a court reporter to record the testimony offered in the case, nor did they object in the trial court to the absence of a court reporter.

In the case before this Court, the appellant has filed a transcript. The appellant has not filed a statement of facts in any of the several forms permitted by the Texas Rules of Civil Procedure.

For the reasons hereinafter stated, the appellant’s first point of error is overruled.

The asserted point of error relates to a procedural matter in a civil case. In order for such a procedural point to be reviewed on appeal, a proper predicate must be made in the trial court. The procedural point in the trial court did not affect the merits of the case. The procedural point of error in this civil case can not be raised for the first time on appeal since, if it is error, it is not fundamental error.

In 1925, the Legislature defined the duties of the official court reporter in Vernon’s Tex.Rev.Civ.Stat.Ann. art. 2324 (1971), providing in pertinent part:

Each Official Court Reporter shall: Attend all sessions of the court; take full shorthand notes of all oral testimony offered in the cases tried in said court, together with all objections to the admissibility of the evidence, the rulings and remarks of the court thereon, and all exceptions thereto .

The cases interpreting Article 2324 have indicated that the absence of a reporter in a civil matter is not a fundamental error, but must be objected to at the trial level if the error is to be preserved for review on appeal. Dugie v. Dugie, 511 S.W.2d 623 (Tex.Civ.App.-San Antonio 1974, no writ).

The appellant treats “a record as in civil cases generally” as used in Section 11.14(d) to be solely equivalent to a statement of facts prepared by the official court reporter who attended and reported the hearing. We do not agree with the appellant’s position. The term “record” can refer to any of several methods of recording the proceedings, testimony, evidence and rulings in the trial of a civil case as provided by the Rules. See, Brown v. Brown, 520 S.W.2d 571 (Tex.Civ.App.-Houston [14th Dist.] 1975).

The appellant in a civil case is entitled to a statement of facts even though the official court reporter has failed to record the evidence and although no complaint was made of the absence of the reporter. Texas Rules of Civil Procedure, rule 377 provides alternate methods of preparing a record of the evidence presented before the trial court. The appellant is entitled to a narrative statement either through agreement with the opposing party, or by the approval of the trial judge. When such a statement of facts is unavailable to the appellant, either because of the refusal of the opposing party to agree to same, or because the trial judge cannot recall the facts sufficiently to approve a statement of facts, then the appellant is entitled to a reversal and new trial. Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.Sup.1972); Strode v. Srygley, 342 S.W.2d 638, 641 (Tex.Civ.App.-Fort Worth 1961, writ ref’d n. r. e.).

By enacting Tex. Family Code Ann. § 11.14(d), the Legislature provided that in cases affecting the parent-child relationship “a record” should be made unless waived by the parties with the consent of the court. The Legislature did not thereby require a question and answer statement of facts. Nor did the Legislature place the burden upon the trial judge in these cases to provide the appellant with a narrative statement of facts in the absence of a request for such a statement under Tex.R.Civ.P. 377.

In the case before this Court, there is nothing in the record to suggest that the appellant was denied a statement of facts under the Texas Rules of Civil Procedure. Robinson v. Robinson, supra, indicates that in civil cases generally, an appellant must exercise due diligence to obtain a proper record.

Notwithstanding our ruling in this case made necessary by the circumstances under which this case comes before us, we would remind all trial courts that Tex.Rev.Civ.Stat.Ann. art. 2324 and Tex. Family Code § 11.14(d) should be followed. Failure to do so in a purely civil case is procedural error and is not fundamental error. Robinson v. Robinson, supra; Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.-Dallas 1974, writ ref’d n. r. e.). However, proceedings involving constructive contempt, are criminal in nature since they may result in penalties and punishment. Schwartz v. Jefferson, Tex., 520 S.W.2d 881 (1975). In constructive contempt cases compliance with Tex.Rev.Civ. Stat.Ann. art. 2324 is mandatory and failure to comply is fundamental error. Ex parte Thompson, 520 S.W.2d 955 (Tex.Civ.App.-Dallas, 1975).

The appellant’s second point of error states that: “The trial court erred in effectively denying the appellant the right to file a request for additional and amended findings of fact and conclusions of law, by filing same without notice to appellant.” The appellant contends that Tex.R.Civ.P. 72, requiring that a copy of a party’s motion or pleadings be served upon the adverse party, ought to apply to the trial court’s findings of fact and conclusions of law.

Tex.R.Civ.P. 298 states that Tex. R.Civ.P. 21a or 21b are the applicable notice provisions with respect to findings of fact and conclusions of law. Those Rules provide that the applicant for findings of fact and conclusions of law must serve the adverse party with a copy of his application. However, neither the applicant nor the court is required to serve the adverse party with a copy of the findings. Rule 298 only requires that the judge file the findings of fact and conclusions of law. The adverse party, the appellant in this case, is then on notice that the applicant’s motion has been acted upon and he must guard his interest accordingly. The second point of error is overruled.

Affirmed.