author: DENTON, Justice.

text:
    Lorna ZOBEL et al., Petitioners, v. Jose SLIM, Trustee et al., Respondents.
    No. B-6974.
    Supreme Court of Texas.
    Dec. 29, 1978.
    Rehearing Denied Feb. 14, 1979.

      Werner & Rusk, John C. Werner, Houston, for petitioners.
    Dow, Cogbum & Friedman, Edmund L. Cogburn and K. Gregory Erwin, Houston, for respondents.
   DENTON, Justice.

This is a trespass to try title suit brought by Fred J. Zobel, his wife, Loma E. Zobel, and Helen M. Decker (hereinafter referred to as the Zobel plaintiffs) against Jose Slim, Trustee and Erwin Hill, Trustee (hereinafter referred to as the Slim defendants) for five acres of land located in Harris County. The trial court granted the Zobel plaintiffs’ motion for instructed verdict and rendered judgment that the Zobel plaintiffs recover title and possession to the five acres described in the judgment. The court of civil appeals reversed and rendered judgment that the Zobel plaintiffs take nothing. 552 S.W.2d 899. We reverse the judgment of the court of civil appeals and remand the cause to the trial court.

The Zobel plaintiffs claim the five acres through a chain of title originating with a 1846 patent from the State of Texas to the heirs of George Childress. The patent covers 1,920 acres. There are three distinct chains of title under the patent. The three chains merge in H. Masterson at the beginning of the twentieth century. Since one of these chains establishes title for the period of time in which all three chains run, it is unnecessary for the Zobel plaintiffs to rely on two of the chains of title. These two chains will not be discussed in this opinion.

In 1846 Governor Henderson patented 1920 acres to the “heirs of George W. Chil-dress.” The patent is recorded in the Harris County Deed Records and the land is described therein by metes and bounds with reference to adjoining surveys, trees, posts and the Houston and Montgomery Road. In the same year D. W. Harris, purporting to act as the administrator of George Chil-dress’ estate, purported to sell the 1,920-acres for $200. A chain of title through 1894 follows the administrator’s deed. Sometime before 1874 the purported heirs of George Childress brought suit to cancel the administrator’s deed. In 1894 the District Court of Harris County rendered judgment cancelling the administrator’s deed and awarding the heirs title to 1,668 acres of the 1,920-acre tract. The 1894 judgment, discussed more fully below, recites that a 100-acre tract claimed by a Mr. Knigge and a 152-acre tract claimed by a Mr. Schroeder were not included in the judgment because Knigge and Schroeder had established title to the two tracts by limitation. An examination of the descriptions in the Knigge and Schroeder deeds reveals that the five acres in controversy in this suit are not within the land conveyed to Knigge and Schroeder.

In the Childress heirs’ lawsuit, the court appointed an attorney to represent those defendants who were not present at trial. The 1894 judgment assessed as costs of the suit the $200 fee for the court-appointed attorney against the heirs. The sheriff executed on the land awarded by the judgment. The subsequent sheriff’s deed to J. R. Masterson and J. S. Stewart, also discussed more fully below, recites that the grantees were the highest bidders at the execution to pay the $200 attorney’s fee, and conveyed to the grantees the entire 1,920 acres for $200, with reference to the 1894 judgment for a full description of the property.

In 1897 J. S. Stewart conveyed his full interest in the 1,920 acres by general warranty deed to H. Masterson. In the same year, J. R. Masterson conveyed his full interest in the 1,920 acres by general warranty deed to H. Masterson, excepting the 100-acre Knigge tract and the 152-acre Schroeder tract.

The chain of title from 1897 to the present includes a 1910 deed from R. T. Adkins and W. A. Roberts to C. W. Hahl and Company, a partnership, and a 1914 deed from C. W. Hahl to C. W. Hahl Co., a corporation. The 1910 deed excepts five specific tracts of land included in the Chil-dress Survey and the 1914 deed excepts one specific tract of land and all of the tracts of land conveyed to C. W. Hahl by Adkins and Roberts that had been previously conveyed by Hahl. Although the 1910 and 1914 deeds specify the volume and pages where the deeds to the six specifically excepted tracts are recorded in the county records, the records of these six conveyances were not allowed into evidence.

In 1921 C. W. Hahl Company conveyed the following property to Bertha Zobel Sheeran:

[T]he South five acres out of Block # 2 out of the third Subdivision of the George W. Childress Survey, as per plat of same recorded in Vol. 327, Page 325 of the deed records of Harris County.

Fred J. Zobel and Helen M. Decker claim the described five acres as the children and only heirs at law of Bertha Zobel Sheeran, who died intestate in the 1950’s.

The first issue involved in this case is whether, as a matter of law, the Zobel plaintiffs established the heirs of George Childress as their predecessors in title. The court of civil appeals held, as a matter of law, that the Zobel plaintiffs failed to establish such heirship. We conclude that heirship was established as a matter of law.

The Zobel plaintiffs introduced into evidence the 1894 judgment entered in the lawsuit between the purported heirs of George Childress and the persons claiming title under the administrator’s deed. The judgment states that the suit was prosecuted “in the names of the heirs at law of George Childress . . and recites the names of the plaintiffs who were awarded title to the disputed property. The Slim defendants presented no evidence rebutting these recitations, but they claim that the recitations are conclusory, self-serving, made after descent had been cast and therefore inadmissible hearsay under Byers v. Wallace, 87 Tex. 503, 28 S.W. 1056 (1894); Walker v. Barrow, 464 S.W.2d 480 (Tex.Civ.App.—Houston 1971, writ ref’d n. r. e.); Slattery v. Adams, 279 S.W.2d 445 (Tex.Civ.App.—Beaumont 1954), aff’d 156 Tex. 433, 295 S.W.2d 859 (1955); Smith v. Lynn, 152 S.W.2d 838 (Tex.Civ.App.—San Antonio 1941, no writ).

Under a well-recognized exception to the hearsay rule, the recitals in an ancient document are admissible as evidence of the facts recited, provided that the instrument is over thirty years old, comes from proper custody, and is not suspicious in appearance. Magee v. Paul, 110 Tex. 470, 221 S.W. 254 (1920); Bendy v. W. T. Carter & Bros., 269 S.W. 1037 (Tex.Com.App.1925, jdgmt adopted); Moore v. Horn, 359 S.W.2d 947 (Tex.Civ.App.—Beaumont 1962, ref’d n. r. e.); C. McCormick & R. Ray, Texas Practice: Evidence §§ 1372-1375 (1956). The 1894 judgment meets these requirements and qualifies as an ancient document admissible as evidence of heirship. The cases relied on by Slim defendants are distinguishable in that they do not involve recitals of heirship in a judgment entered in a lawsuit in which the court had to determine heirship in order to grant relief.

As a practical matter, there is usually no other way to prove the heirship of a person who died in 1836 than by the recitations in ancient documents. The 1894 judgment is particularly reliable because it had to determine heirship in a contested proceeding. We therefore hold that, in the absence of rebutting evidence, recitations of heirship in an ancient judgment entered in a lawsuit that had to determine heirship in order to grant relief establish heirship as a matter of law. Cf. Sydnor v. Texas Savings & Real Estate Inv. Ass’n, 42 Tex.Civ.App. 138, 94 S.W. 451 (1906, writ ref’d); Ardoin v. Cobb, 136 S.W. 271 (Tex.Civ.App.—1911, no writ).

As a part of their chain of title, the Zobel plaintiffs rely on an 1895 sheriff’s deed to J. S. Stewart and J. R. Masterson. The second issue in this case is whether the 1895 sheriff’s deed which recites that $200 had been paid for the property, is void because the sheriff’s return recites that the consideration for the property was not paid. The court of civil appeals did not address this issue. We conclude that the sheriff’s deed is valid.

The December 4, 1895 sheriff’s deed to J. S. Stewart and J. R. Masterson recites that, pursuant to a writ of execution issued by the district court in favor of the court-appointed attorney for costs due in the Chil-dress heirs’ suit, the sheriff levied on the property described in the 1894 judgment on November 3,1895, and sold the entire property at a public sale to Stewart and J. R. Masterson for $200 on December 3, 1895. The sheriff’s deed expressly acknowledges the sheriff’s receipt of the $200. The sheriff signed the deed and the county clerk filed and recorded it in 1897. However, the sheriff’s return entered in the execution docket of the district court recites that the property patented to the Childress heirs was levied upon on December 1, 1895, and sold to Stewart and Masterson on January 7,1896 for $200. The sheriff’s return states that the $200 was never paid. A deputy sheriff signed the return. Stewart and Masterson filed a motion entitled “Motion to Correct Sheriff’s Return on Execution and for Sheriff to Deliver Deed to Purchasers.” The motion states that Stewart and Masterson had paid the $200 directly to a court-appointed attorney, but the motion was never ruled on by the court.

The Slim defendants contend that the sheriff’s deed is void because the sheriff’s return recites that the consideration was not paid. However, if the recitals in a sheriff’s deed and the recitals in his return conflict, then the recitals in the deed control. Holmes v. Buckner, 67 Tex. 107, 2 S.W. 452 (1886); Tanner v. Grisham, 289 S.W. 146 (Tex.Civ.App.—Eastland 1926), rev'd on other grounds, 295 S.W. 590 (Tex.Com.App.1927, holding approved); Moore v. Miller, 155 S.W. 573 (Tex.Civ.App.—San Antonio 1913, writ ref’d). The rationale for this rule is that a sheriff is presumed to have done his duty. White v. Jones, 67 Tex. 638, 4 S.W. 161 (1887); Harris v. Mayfield, 260 S.W. 835 (Tex.Com.App.1924, holding approved); Fields v. Burnett, 49 Tex.Civ.App. 446, 108 S.W. 1048 (1908, writ ref’d).

Under the statute applicable in the late 1890’s, the sheriff was under a duty to resell the property as soon as possible if Stewart and Masterson had failed to pay the consideration. 1939 Tex.Gen.Laws, § 1, at 201. There is no evidence in the record before us that the 1895 sheriff’s sale was set aside or that the sheriff resold the property. The most reasonable inference to be drawn from these facts is that the consideration was paid.

We cannot conclude that after 85 years, a sheriff’s deed is void merely because of a sheriff’s return entered in an execution docket. We hold that if an ancient sheriff’s deed and the sheriff’s return are in conflict as to whether the consideration for the property was paid, then payment is established as a matter of law, in the absence of evidence that the sheriff’s sale has been set aside. Therefore, the 1895 sheriff’s deed establishes a valid link in the Zobel plaintiffs’ chain of title.

The third issue involved in this case is whether the Zobel plaintiffs proved, as a matter of law, that the exceptions to two of the deeds in their chain of title do not include the five acres in controversy. The court of civil appeals held that “the evidence failed to show as a matter of law the property awarded to plaintiffs was not included in any of the exceptions from the tracts described in the documents relied upon . . . ” 552 S.W.2d 904. We agree that the trial court erred in rendering an instructed verdict.

The 1910 deed from R. T. Atkins and W. A. Roberts to C. W. Hahl and Company excepts five tracts totalling 334.08 acres and recites that after these tracts are excepted, 625.92 acres are conveyed to C. W. Hahl and Company. The deed specifies the volume and page number where the deeds to the five tracts are recorded in the Harris County deed records. Similarly, the 1914 deed from C. W. Hahl to C. W. Hahl Co. excepts one tract of land and specifies where the deed to the tract is recorded in the Harris County deed records.

At trial, Reno G. Hartfiel, title attorney and expert on deed descriptions for Statewide Title Insurance Co., testified as an expert witness for the Zobel plaintiffs. Hartfiel stated that he works with surveys “everyday”, that his title company had “this particular property surveyed,” and that based on the survey and his knowledge of deed descriptions, the five acres “is contained in all the instruments” introduced. However, the survey was not admitted into evidence, nor did any witness explain the basis of the survey. Hartfiel also testified that he had seen the deeds to the five exceptions to the 1910 conveyances and that the five acres are not included in these exceptions.

After both parties had closed their cases, the Zobel plaintiffs requested to reopen their case and introduce six deeds in order to show that the five acres are not included in the exceptions. The trial court refused to reopen and enter the documents and proceeded to grant the Zobel plaintiffs’ motion for instructed verdict.

The Slim defendants correctly point out that the established rule in Texas is that the plaintiff in a trespass to try title suit has the burden to show that the land he is claiming is not included in the exceptions to the conveyances that form his chain of title. Mills v. Pitts, 121 Tex. 196, 48 S.W.2d 941 (1932); Waggoner v. Dodson, 96 Tex. 415, 421, 73 S.W. 517 (1903); Best Investment Co. v. Hernandez, 479 S.W.2d 759 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.); Seddon v. Harrison, 367 S.W.2d 888 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.). We agree that the Zobel plaintiffs did not prove, as a matter of law, that the exceptions to the 1910 and 1914 deeds do not include the five acres in controversy. It cannot be determined, as a matter of law, whether the excepted tracts include the five acres without examining the descriptions of the excepted tracts. Because the trial court erred in not allowing the Zobel plaintiffs to introduce the deeds to the excepted tracts and because Mr. Hartfiel’s testimony does constitute some evidence that the excepted deeds do not include the five acres in controversy, we will remand the cause to the trial court for a new trial. Tex.Rules Civ. Proc. 503.

The fourth issue in this case is whether the Zobel plaintiffs proved, as a matter of law, the location of the five acres on the ground. The court of civil appeals held that “the evidence failed to show as a matter of law the five acres in dispute can be located on the ground by the description set out in the pleadings and judgment.” 552 S.W.2d at 903. We agree.

The Zobel plaintiffs’ petition and the trial court’s judgment contain the following description of the five acres in controversy:

Being the Bertha Zobel Sheeran 5.00 acre tract of land out of Tract Two, Hahl’s Suburban Farms, Third Subdivision, G. W. Childress Survey, Abstract 217, as recorded in Volume 327, Page 325, Deed Records of Harris County, Texas, said 5.00 acres being that same tract of land described in deed to said Bertha Zobel Sheeran dated October 4, 1921 and recorded in Volume 487, Page 564, Harris County Deed Records; said 5.00 acres being more particularly described as follows:
BEGINNING at an iron rod found marking the Southeast corner of said Tract Two and the Southwest corner of Tract One and being in the Northeast right of way line of Grant Road; THENCE N 70° 10' 15" W 531.51 feet along said right of way line to iron rod found marking the Southwest corner of said Tract Two; THENCE North along the West line of said Tract Two and at 266.7 feet passing an iron rod and continuing on a total distance of 345.45 feet to iron rod set for corner; THENCE East 500 feet to iron rod set for corner in the East line of said Tract Two and the West line of said Tract One; THENCE South and at 78.75 feet passing an iron rod and continuing on a total distance of 525.75 feet to PLACE OF BEGINNING and containing 5.00 acres of land.

In support of the above description, the Zobel plaintiffs introduced into evidence several deeds and plats, including the 1921 Sheeran deed referred to in the above description, Abstract 217 referred to in the above description, the 1910 deed to C. W. Hahl and a tax plat. None of the evidence offered by the Zobel plaintiffs furnishes a basis for the metes and bounds description recited in the second paragraph of the above description.

The 1921 Sheeran deed specifies that the land conveyed is the south five acres of Block 2 and refers to Abstract 217 at specified page in a specified volume of the Harris County deed records for a further description of the five acres.

Abstract 217 is a 1914 subdivision plat and map of Hahl’s Suburban Farms Third Subdivision. All of the blocks in the subdivision, including Block 2 are shown in the subdivision plat. The plat is not scaled and does not show any distance or direction calls. The plat does indicate how many acres are contained in each of the fifty-five blocks in the subdivision. Block 2 consists of 10.4 acres and the plat shows an unnamed and unmarked “graded county road to Houston” along the lower border of Block 2.

At trial, Mr. Hartfiel, the title expert called by the Zobel plaintiffs, testified as follows regarding the accuracy of the 1914 subdivision plat:

This plat is used by — every tract of land sold in that subdivision has used this plat as a recording reference and properties can be located on the ground, apparently, by a surveyor who goes out and surveys it.

The Zobel plaintiffs also introduced three deeds that show that the 1914 subdivision plat is relied on by other property owners, including the Slim defendants, in Hahl’s Suburban Farms Third Subdivision. The descriptions in the deeds indicate that several of the blocks, including Block 2 are located by reference to the 1914 subdivision plat.

The 1914 subdivision plat recites that the subdivision is the same land conveyed to C. W. Hahl by R. T. Adkins and W. A. Roberts in a 1910 deed, and refers to this deed at a specified page in a specified volume of the Harris County deed records for a full description. The 1910 deed describes a total of 906 acres as follows:

[A]ll that certain tract of . land . situated in Harris County, Texas being a part of a survey of 1920 acres, originally granted to the Heirs of Geo. W. Childress, by Patent No. 47 Vol. 3 . described by metes and bounds, as follows: — Beginning at one of the northwest corners of the said Geo. W. Childress Survey, the same being the northeast corner of the Habermacher survey, on the south line of the Lewis Survey. Thence south 6686 feet to corner on the south line of said Childress Survey: thence east with said south line . . . 9,848 feet to corner: thence North . . . 3547 feet to corner: thence west 7180 feet to Harrington’s southwest corner: thence north . . . 3139 feet to one of the northeast corners of the Chil-dress Survey on Harrington’s west line: thence west . . 2622 feet to the place of beginning.

The deed then excepts five tracts from the above descriptions and recites that after these tracts are excepted, 625.92 acres are conveyed to C. W. Hahl and Company.

The 1972-1973 tax plat introduced by the Zobel plaintiffs is an entry in the Assessor’s Block Book for Harris County. The plat shows “Hahl’s Surburban 3rd” including Block 2 divided into a southern portion of 5.4 acres and a northern portion of 5 acres. The plat shows the graded county road to Houston as Grant Road and shows two numbered farm to market roads. The plat shows one farm to market road intersecting Grant Road in the Childress Survey six blocks west of Block 2 and the other farm to market road running across three of the blocks north of Block 2. The plat contains direction calls, distance calls for the boundaries of all the blocks including Block 2, and distance calls for the three roads crossing or bordering the blocks in the subdivision. The tax plat is not referred to in any of the deeds that form the Zobel plaintiffs’ chain of title. There is nothing in the record to indicate the basis of the information contained in the tax plat.

The 1972-1973 tax plat introduced into evidence by the Zobel plaintiffs is not admissible under the facts revealed by the trial record. None of the deeds relied on by the Zobel plaintiffs refer to the tax plat. The trial court record in this case does not show how the plat was made, nor does the record contain any evidence linking the plat to the descriptions in the Zobel plaintiffs’ chain of title. In these circumstances, the tax plats cannot be relied upon for location of the five acres on the ground. Weatherly v. Jackson, 123 Tex. 213, 71 S.W.2d 259 (1934); Finberg v. Gilbert, 104 Tex. 539, 141 S.W. 82 (1911); Waldrop v. Manning, 507 S.W.2d 626 (Tex.Civ.App.—Texarkana 1973), writ ref’d n. r. e. per curiam, 514 S.W.2d 899 (Tex.1974).

Mr. Hartfiel testified as follows regarding the location of the five acres in controversy.

I have seen lot 2 that is in question. I have seen the land. I have seen the survey that the surveyor did.

As a title abstractor, Mr. Hartfiel was not qualified to testify as to the location of the five acres on the ground. Even if he were a qualified surveyor, his testimony that he had seen Block 2 would not be competent evidence. The survey relied upon by Hart-fiel was not introduced into evidence; the surveyor was not called as a witness; and the basis for the survey and Hartfiel’s opinion was not explained. In these circumstances, we must regard this part of Hartfiel’s testimony as hearsay and inadmissible. See City of Mission v. Popplewell, 156 Tex. 269, 294 S.W.2d 712 (1956); Moseley v. Fikes, 126 S.W.2d 589 (Tex.Civ.App.—Fort Worth), aff’d 136 Tex. 386, 151 S.W.2d 202 (1939); City of Port Lavaca v. Fisher, 355 S.W.2d 785 (Tex.Civ.App.—San Antonio 1962, no writ hist); Southern Pine Lumber Co. v. Whiteman, 104 S.W.2d 635 (Tex.Civ.App.—Eastland 1937, writ dism’d).

In a trespass to try title suit, the general test for determining the sufficiency of a description of land is whether the tract can be identified with reasonable certainty. Smith v. Griffin, 131 Tex. 509, 116 S.W.2d 1064 (1938); Etheridge v. Dallas, 246 S.W.2d 692 (Tex.Civ.App.—Waco 1952, aff’d 253 S.W.2d 640); see Williams v. Ellison, 493 S.W.2d 734 (Tex.1973); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972). More specifically, the judgment in a trespass to try title case must so identify the land that an officer charged with the duty of executing a writ of possession can locate the property without exercising judicial functions. Permian Oil Co. v. Smith, 129 Tex. 413, 73 S.W.2d 490 (1934); Gilbreath v. Yarbrough, 472 S.W.2d 185 (Tex.Civ.App.—Tyler 1971, writ ref’d n. r. e.).

Based on the record before us, we cannot conclude as a matter of law, that the Zobel plaintiffs located the property on the ground. Although the Zobel plaintiffs’ petition and the trial court judgment describes the property as “the south five acres” of a particular block of a particular subdivision, the 1914 subdivision plat referred to in the petition and judgment does not contain any directional calls, course calls or monuments. The description in the 1910 deed referred to in the 1914 subdivision plat does contain directional calls, course calls and monuments, but the tract described therein does not exactly coincide with the subdivision plat because the five excepted tracts were included in the 1910 description. Finally, none of the deeds or plats introduced by the Zobel plaintiffs afford a basis for the specific metes and bounds description recited in the Zobel plaintiffs’ petition and the trial court judgment. Upon a new trial, this description must be tied to the five acres described in the Zobel chain of title if the Zobels are to recover judgment for the tract described in their petition. If any fact issues arise as to location of the five acres on the ground, they should be submitted to the jury on special issues. See Finberg v. Gilbert, 104 Tex. 539, 141 S.W. 82 (1911); Withers v. Republic National Bank of Dallas, 248 S.W.2d 271 (Tex.Civ.App.—Beaumont 1951, writ ref’d n. r. e.); Tex.Rules Civ.Proc. 503.

The judgment of the court of civil appeals is reversed and the cause is remanded to the trial court for a new trial.

      . This deed along with the five exceptions are discussed under the heading “The Exceptions in the Chain of Title,” supra.


source: Caselaw Access Project

author: STEAKLEY, Justice.

license: Public Domain

text:
    Joan BROOKS, Petitioner, v. EXPO CHEMICAL COMPANY, INC., Respondent.
    No. B-7788.
    Supreme Court of Texas.
    Jan. 17, 1979.

      James E. Ross, Houston, for petitioner.
    Gerald E. Hopkins, Houston, for respondent.
   STEAKLEY, Justice.

Expo Chemical Company, Inc., plaintiff below and Respondent here, sued Joan Brooks, Petitioner here, for temporary injunction and, upon trial, for permanent injunction, for actual, punitive and treble damages, for attorney’s fees, interest and costs. It was alleged that Joan Brooks, a former employee of Expo and currently employed by a competitor, was using Expo’s customer list and product cross-reference cards to solicit business from Expo’s customers; and that such are trade secrets or confidential information.

The suit was filed November 28, 1977. The trial court heard Expo’s application for temporary injunction on December 15,1977, and denied this relief. Expo appealed.

While recognizing that the matter for review was the denial by the trial court of a temporary injunction, the Court of Civil Appeals called “attention” to what was termed “errors” of the trial court and by its judgment reversed the judgment of the trial court and remanded the cause “for further proceedings in accordance with the opinion of this court.” No consideration was given to the only question before the trial court, i. e., whether Expo was entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. In effect, the Court of Civil Appeals prematurely reviewed the merits of Expo’s suit. See Expo Chemical Company, Inc. v. Joan Brooks, (Tex.Civ.App.) 572 S.W.2d 8.

This is the precise posture in which we wrote Davis et ux. v. Huey et al., 571 S.W.2d 859 (Tex.1978). We there said, with appropriate citations, that the merits of the underlying case are not presented for appellate review in an appeal from an order granting or denying a temporary injunction; that such review is strictly limited to a determination of whether there has been a clear abuse of discretion by the trial court in determining whether the applicant is entitled to a preservation of the status quo pending trial on the merits; that the effect of a premature review of the merits is to deny the opposing party the right to trial by a jury; and that it will not be assumed that the evidence taken at a preliminary hearing on temporary injunction will be the same as the evidence developed at a trial on the merits.

Here, as in Davis v. Huey, supra, the opinion of the Court of Civil Appeals makes no reference to the interlocutory nature of the injunction or to the abuse of discretion standard. A review of the temporary injunction record discloses factual dispute in the testimony of the president of Expo and of Joan Brooks, particularly with reference to the general availability of the information contained in the customer list and reference cards. Moreover, it was not convincingly shown that the granting of relief by temporary injunction to preserve the status quo was required to prevent Expo from suffering irreparable injury. The exercise by the trial court of its discretion in denying the temporary restraint will not be disturbed.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.


author: DALLY, Judge. DOUGLAS, Judge.

text:
    Steven Eugene NORRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 54686.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Sept. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    James R. Mallory, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, John R. Bankston and Ronald G. Knight, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for speeding; punishment is a fine of $105.00.

Appellant argues that the ordinance of the City of Hurst for violation of which he was convicted is in conflict with a State statute and therefore is invalid. We disagree.

Art. 6701d, Sec. 166(a), V.A.C.S., provides, in pertinent part, as follows:

“(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under circumstances then existing. Except when a special hazard exists that requires lower speeds for compliance with paragraph (b) of this Section, the limits specified in this Section or established as hereinafter authorized shall be lawful, but any speed in excess of the limits specified in this Section or established as hereinafter authorized shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful;
“The maximum speed limits set forth in this Section may be altered as authorized in Sections 167, 168 and 169.”

Article 6701d, Sec. 167(a), V.A.C.S., provides, in pertinent part, as follows:

“Whenever the State Highway Commission shall determine upon the basis of an engineering and traffic investigation that any prima facie maximum speed limit hereinbefore set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of the highway system, taking into consideration the width and condition of the pavement and other circumstances on such portion of said highway as well as the usual traffic thereon, said State Highway Commission may determine and declare a reasonable and safe prima facie maximum speed limit thereat or thereon, . . ."

Article 6701d, See. 169(b), V.A.C.S., provides, in pertinent part, as follows:

“The governing body of an incorporated city, town or village with respect to any highway, street or part of a highway or street, including those marked as a route of highway of the State Highway System, within its corporate limits, shall have the same authority by city ordinance to alter maximum prima facie speed limits upon the basis of an engineering and traffic investigation as that delegated to the State Highway Commission with respect to any officially designated or marked highway, road or street of the State Highway System; provided that under no circumstances shall any such governing body have the authority to modify or alter the basic rule established in paragraph (a) of Section 166, . . ."

The ordinance under which appellant was prosecuted provides, in pertinent part, as follows:

“AN ORDINANCE AMENDING SECTION 24-100 OF THE HURST CODE OF ORDINANCES AND ESTABLISHING A 20 MILE PER HOUR SCHOOL ZONE ON HARWOOD ROAD FROM CAVENDER DRIVE TO THE EAST CITY LIMITS; PROVIDING A PENALTY; DECLARING AN EMERGENCY AND AUTHORIZING PUBLICATION.
WHEREAS, many school children must use Harwood Road to travel to school and such road is not wide enough to permit their travel by foot or bicycle off of the paved portion of said road, and it is deemed necessary by the City Council to protect such school children by reducing the speed on such street;
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF HURST, TEXAS:
Sec. 1. That section 24-100 of the Code of Ordinances, City of Hurst, Texas, is hereby amended to read as follows:
‘Section 24-100, School Zone Speed
The following areas, streets, or portions thereof shall be designated special speed zones and it shall be unlawful for any person to drive any vehicle thereon at a speed greater than 20 miles per hour on school days between the hours of 7:30 and 8:30 A.M., and between the hours of 2:00 and 4:00 P.M., when signs are erected:’
[There follows a list of designated portions of certain streets, including that on which appellant was apprehended.]
See. 2. Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined in the sum of not more than $200.00.”

The conviction in Ex parte Devereaux, 389 S.W.2d 672 (Tex.Cr.App.1965) was for violation of a city speeding ordinance. That conviction was upheld even though the penalty provision of the ordinance was void because it provided a different penalty than the State statute. The ordinance is not set out in the opinion in that case, but an examination of the record, which is on file in this Court, has revealed that that ordinance is in all material respects identical to the ordinance in the case at bar. We quote from that opinion:

“The ordinance before us is silent as to the rule referred to which makes it unlawful to drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing, any speed in excess of the limits specified in Sec. 166 or established as authorized in Secs. 167, 168, or 169 being prima facie evidence that the speed is not reasonable or prudent and that it is unlawful.
. . Insofar as the ordinance in question alters the prima facie speed limits set out in Sec. 166(a) of Article 6701d, under authority of Secs. 166(a), 167, and 169, and implements said statute without altering or modifying the basic rule established in paragraph (a) of Sec. 166, it is valid and a conviction for violation of the state statute, implemented by the ordinance, with punishment authorized by Sec. 143 of said Article 6701d, is not subject to attack as a conviction for violation of a void ordinance.”

Although appellant has directed our attention to a number of cases from other jurisdictions holding void city speeding ordinances similar to the one in the instant case, we prefer to adhere to the reasoning of Ex parte Devereaux, supra. The ordinance here reduced the prima facie speed limit from 30 miles per hour to 20 miles per hour. The pleading is sufficient under the State statute and the evidence is sufficient to sustain the conviction under the State statute as implemented by the ordinance changing the prima facie speed limit from 30 miles to 20 miles per hour.

The judgment is affirmed.

Before the court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Appellant was convicted for driving at a speed greater than was reasonable and prudent under the conditions and in excess of the twenty mile per hour school zone speed limit set out in an ordinance of the City of Hurst.

In the motion for rehearing, appellant contends that this cause should be reversed because of our decision in Abrams v. State, 563 S.W.2d 610 (Tex.Cr.App.1978). He urges that in Abrams, decided after his brief was submitted, this Court ruled consistently with his contention that the ordinance in question is void.

In our original opinion we held that in light of our decision in Ex parte Devereaux, 389 S.W.2d 672 (Tex.Cr.App.1965), the ordinance here was not void. In Devereaux, the ordinance purported to make it unlawful for anyone to drive faster than twenty (20) miles per hour within designated school zones during certain hours. It was silent, however, “as to the rule which makes it unlawful to drive a vehicle on a highway at a speed greater than is reasonable and prudent under the circumstances then existing.” It was, in other words, virtually identical to the ordinance before us here. The Court held that the ordinance was valid because it merely altered the prima facie speed limits established in Article 6701d, Section 166(a), V.A.C.S., under the authority of Sections 166(a), 167 and 169. Accordingly, we concluded that conviction under the ordinance was “not subject to attack as a conviction under a void ordinance.”

Our decision in Abrams v. State, supra, was based on an ordinance of the City of Arlington which was significantly different than the one before us in the case at bar. The Arlington ordinance purported to set the speed limit at thirty (30) miles per hour throughout the entire city “unless otherwise posted.” It made no provisions for the erection of signs to give notice thereof and specific designated areas were not delineated. In other words, it was a blanket change in state law without notice, with only the exceptions to be noted.

The Hurst ordinance does not institute such a blanket change. It does not attempt to alter the basic rule in Section 166(a) of reasonable and prudent speed by setting a rigid speed limit unless otherwise posted. On the contrary, the Hurst ordinance merely varies the prima facie speed limit within certain delineated areas, during designated times for the purpose of protecting school children passing through these areas. Moreover, all the changes are to be clearly marked and posted.

The recent decision in Abrams v. State, supra, is distinguishable from the case at bar, and we reaffirm the reasoning in Ex parte Devereaux, supra. The Hurst ordinance is valid because it alters the prima facie speed limits without modifying the basic rule of Section 166(a).

The motion for rehearing is overruled.


author: ROBERTS, Judge. TOM G. DAVIS, Judge, DALLY, Judge.

text:
    Richard Glenn BENTON, Appellant, v. The STATE of Texas, Appellee.
    No. 54594.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Oct. 25, 1978.
    Rehearing Denied Jan. 31, 1979.
    Russell C. Busby, Amarillo, for appellant.
    Randall L. Sherrod, Dist. Atty. and Richard L. Wilcox, Asst. Dist. Atty., Canyon, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of marihuana under two ounces. Art. 4476-15, Sec. 4.05(b)(3), Vernon’s Ann. Civ. St. After finding appellant guilty, a jury assessed his punishment at one hundred twenty days in jail and a fine of one thousand dollars.

Appellant’s first contention is that his motion to suppress the marihuana should have been granted because the search which resulted in the discovery of the marihuana was the product of and sequel to an unlawful stop. We agree and reverse.

Officer Austin Brown of the Amarillo Police Department testified that he stopped appellant at approximately 4:45 on a Sunday morning. There was little other traffic in that neighborhood. There had been perhaps three recent burglaries in that area. These burglaries had “usually” taken place between three and five in the morning.

Although Brown stated that he saw the appellant violate no laws, he testified that appellant and another individual had tried to “elude” two other officers just before Brown stopped him. When pressed, however, Brown conceded that by “eluding” he meant nothing more than a “zigzag” pattern of driving. The record makes it clear that this driving pattern was not part of any overt attempt by appellant to avoid an explicit lawful detention.

Brown then admitted, and repeated several times, exactly what this record reveals — that he stopped appellant “merely on suspicion.” This is not sufficient to constitute probable cause.

This case is governed by our holding in Tunnell v. State, 554 S.W.2d 697 (Tex.Cr.App.1977). There the officer saw the defendant and two other men in a car with its lights off. The car was parked in a well-lighted hospital parking lot. The officer decided that this “activity” was suspicious, so he drove down the street, turned around, and returned to the area around the parking lot. The car had by that time turned on its lights and begun driving along the street. The officer then stopped the car. As in the instant case, the officer in Tunneil observed no traffic violation and stated that the defendant engaged in no criminal activity, made no furtive gestures, and took no evasive action after the officer began his pursuit. We held that the stop was constitutionally prohibited and required reversal.

The facts which allegedly support probable cause in this case are not even as strong as those in Scott v. State, 549 S.W.2d 170 (Tex.Cr.App.1976). In that case the officer was patrolling at 1:30 a. m. in what he described as a “high crime area,” the same designation given to the area of appellant’s arrest in the case at bar. In Scott, there had been reports of hubcap thefts in the area.

The officer in Scott testified that he saw the defendant’s car coming from an area of fashionable newer townhouses. He also stated that normally there were no cars on that street at that time. There were no street lights in the area. As the officer passed the defendant’s car, he saw that it was occupied by two black males and that there was what appeared to be “sheeting material” propped up in the back seat of the car. The officer then stopped the car to investigate. We held that this stop was unjustified and the subsequent search was invalid.

Numerous other cases of this Court require that we reverse this case. It was nothing more than the product of an inarticulate hunch which led to an unconstitutional search.

The judgment is reversed and the cause remanded.

TOM G. DAVIS, Judge,

dissenting.

I dissent to the majority’s holding that the officer lacked authority to make the initial stop of appellant.

The law is well settled that a brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information may be the most reasonable course in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Armstrong v. State, 550 S.W.2d 25 (Tex.Cr.App.). In such a situation, the prosecution need not demonstrate that probable cause to arrest a suspect existed at the inception of the detention, although such a detention is within the protection of the Fourth Amendment of the United States Constitution. Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), and Article 1, Section 9, of the Texas Constitution; Armstrong v. State, supra. We have frequently said that circumstances short of probable cause for arrest may justify temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.); Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.); Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.). It is clear that an occupant of an automobile is just as subject to a brief detention or stop as is a pedestrian. Adams v. Williams, supra; Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.).

In Shaffer v. State, 562 S.W.2d 853 (Tex.Cr.App.), this Court, in addressing the question of circumstances that may justify temporary detention for investigation, said:

“There must be a reasonable suspicion by the officer that some activity out of the ordinary is occurring or had occurred, some suggestion to connect the detained person with the unusual activity, and some indication that the activity is related to crime. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful.”

See Armstrong v. State, supra, citing Irwin v. Superior Court of Los Angeles County, 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12 (1969).

The totality of the circumstances surrounding the incident are looked to in determining whether the police conduct was reasonable. Shaffer v. State, supra. The circumstances in the instant case were (1) The time of the stop was “4:45 in the morning” and “there had been a number of burglaries in the area” in recent time, the arresting officer stating, “three times in that particular area” and they had occurred usually between three and five in the morning. The officer testified that he had been told to patrol the area quite heavily. (2) The arresting officer had been advised by police radio that appellant and his companion “had tried to elude” other officers who had been following them.

Since the totality of the circumstances may be considered, it is not necessary for us to determine if either of the foregoing sets of facts standing alone would justify the stop. It is necessary, however, to make a careful examination of each of the circumstances. With respect to the officer’s knowledge that crimes had been committed in the area, we find the facts presented herein to be more persuasive than those in Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.).

In Talbert, officers who had stopped the defendant in the University of Texas area in Austin between 1:30 and 2:00 a. m. gave as the reason for such stop the hour of the night and the officers’ opinion that the entire University area “could be classified as a high crime area.” The arresting officer, in defining “high crime area,” included collisions and violations of the Uniform Traffic Act. This Court stated, “We are unwilling to blanket-label such a substantial portion of Austin as a ‘high crime area’ in order to justify the stopping of appellant’s automobile.” In the instant case the arresting officer’s knowledge relative to a “high crime area” was much more specific as to the crimes being committed, the officer relating that a number of burglaries had been committed in the area. Further, the area in which the crimes had been committed and the times of commission were much narrower than in Talbert.

With regard to the information received by the officer that appellant had tried to elude other officers, the record reflects the following testimony by Officer Brown on cross-examination:

“Q. Was the only reason you stopped him was because it was 4:35 in the morning and it was a high crime rate in that area?
“A. Yes, sir. And also that the other two, Officer Wheeler and Officer Hudson, had been following the subject for some time.
“Q. Is that the only reason you had to—
“A. They stated on the radio that the subjects had tried to elude them several times.
“Q. And what does that mean?
“A. It means they would go down approximately a block and turn and go down another block and turn, back and forth. And also they drove around in that area, Stephen F. Austin school, where Mr. Benton dropped off the other subject.”

The fact that the officer may have been made aware that appellant and his companion were trying to “elude” the other officers by turning after they had driven a block and by a “zigzag” pattern of driving rather than by traveling at a high rate of speed is of little consequence. The important factor is that Officer Brown was advised that appellant was trying to elude the officers, not the method employed.

The legality of the stop is determined only by the facts known by the arresting officer at the time of arrest. Talbert v. State, supra. The fact that the officer may have displayed a misconception about the law governing probable cause to arrest an individual at the trial on its merits is of no relevance in the resolution of the issue before us.

The totality of the circumstances known to the officer at the time was such as to create a reasonable suspicion on his part that some activity out of the ordinary was occurring or had occurred, that such activity was related to crime, and that appellant was connected with that activity. The officer’s action in stopping the vehicle appellant was driving to determine his identity or to maintain the status quo momentarily while obtaining more information was reasonable. Adams v. Williams, supra; Terry v. Ohio, supra; Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.); Hazel v. State, 534 S.W.2d 698 (Tex.Cr.App.); Wood v. State, 515 S.W.2d 300 (Tex.Cr.App.).

I dissent.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

DALLY, Judge.

There are additional facts which were not stated in either of the opinions on original submission. Amarillo police officers, Wheeler and Hudson, observed the appellant driving in the downtown area of Amarillo. They started following him at approximately 4:30 a. m. Stephen Stubblefield was a passenger in the appellant’s vehicle. The officers followed the appellant’s vehicle as it was driven toward the south part of Amarillo. The officers, by the use of their radio, obtained the help of several other officers who were on patrol in the South part of the city. The officers, working together in different automobiles, followed the appellant’s vehicle. The appellant drove to the Stephen F. Austin Junior High School parking lot. Stephen Stubblefield, the passenger, left the appellant’s vehicle and got in a parked automobile; both vehicles left the parking area. An officer stopped Stubblefield and ascertained that he was driving his own automobile. Other officers stopped the appellant. Although the appellant was stopped in an area where numerous burglaries had been recently committed, the officers could not have reasonably thought the appellant had just committed a burglary or any other crime in that area because the officers had seen him driving in the downtown area for a period of time and had then followed appellant to the south part of Amarillo. According to the testimony of the officers the appellant was under their surveillance all of this time except for a momentary lapse. The officers did not, in view of these facts, have probable cause to arrest the appellant, nor did they have sufficient reason to temporarily detain the appellant. Taking into account these additional facts we remain convinced that the majority of the panel reached the right result on original submission.

The State’s motion for rehearing is overruled.

      . Compare V.T.C.A., Penal Code, Section 38.04 (Evading Arrest), and see Art. 6701 d, Section 186, V.A.C.S. (Fleeing or Attempting to Elude a Police Officer). Brown explained this “zigzag” pattern as “go[ing] down approximately a block and tum[ing] and go[ing] another block and tumpng], back and forth . . . .”

      . The arresting officer’s testimony at trial on the merits indicates that he considered such a stop proper police behavior:
      “Q. [By Defense Counsel]: All right. Now, as an officer patroling a beat, what gives you probable cause to stop an individual?
      “A. Any particualr type of situation.
      “MR. ROPER [Prosecutor]: Objection, Your Honor. 1 believe that calls for a legal conclusion here—
      “THE COURT: Okay I’m going to sustain your objection. Mr. Busby, rephrase your question. I think you will get the same thing.
      “MR. BUSBY: All right.
      “Q. (By Mr. Busby) When you are driving down the street, and you stop someone, is it not correct that you have to have probable cause to make that stop?
      “A. Yes, sir. It is.
      “Q. And, how do you get probable cause to make an arrest?
      “A. It can be a traffic violation.
      “Q. All right. Anything else?
      “A. Yes, sir. Vehicle driving in a part of town that I know shouldn’t be there on my beat. I usually know a lot of the vehicles that belong there. If I see a subject I do know, and he’s not usually out at that time, I may stop him just to see what he’s doing.”

      . See, e. g., Leighton v. State, 544 S.W.2d 394 (Tex.Cr.App.1976); Hinson v. State, 547 S.W.2d 277 (Tex.Cr.App.1977); Phillips v. State, 548 S.W.2d 44 (Tex.Cr.App.1977); Ceniceros v. State, 551 S.W.2d 50 (Tex.Cr.App.1977); McDougald v. State, 547 S.W.2d 40 (Tex.Cr.App.1977); Faulkner v. State, 549 S.W.2d 1 (Tex.Cr.App.1976); Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972); Talbert v. State, 489 S.W.2d 309 (Tex.Cr.App.1973).
      Cf. Amorella v. State, 554 S.W.2d 700 (Tex.Cr.App.1977); Drago v. State, 553 S.W.2d 375 (Tex.Cr.App.1977).


author: ODOM, Judge. DALLY, Judge,

text:
    James Allen DAVIS, Appellant, v. The STATE of Texas, Appellee.
    Nos. 59303, 59304.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Dec. 13, 1978.
    Rehearings En Banc Denied Feb. 14, 1979.
    State’s Motion # 59303 Rehearing En Banc Denied Feb. 21, 1979.

      Jimmy L. Burrell, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Alvin M. Titus and Chris T. Hanger, Asst. Dist. Attys., Houston, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

These are appeals from orders revoking probation. Appellant had been convicted in two cases for theft over $200, punishment was assessed at 10 years in each, and appellant was placed on probation. Subsequently, his probations were revoked for possession of marihuana in violation of his probation conditions that he commit no offense against the laws of this State. Appellant asserts the marijuana was seized as a result of an illegal search and should have been excluded from evidence.

Appellant was observed loitering most of the morning around a store on a busy street in Harris County. The store employee who observed appellant became alarmed and called the Harris County Sheriff’s Office. A deputy sheriff responded and observed appellant, who fit the description given, walking along the street. The deputy pulled over, got out of his car, and engaged appellant in conversation. The deputy testified that appellant appeared somewhat unsteady on his feet and slurred his words. There was no alcohol on his breath so the officer came to the conclusion that appellant was intoxicated by some unknown substance. He testified that he decided to arrest appellant for public intoxication. At this time, he noticed a round bulge about half the size of a man’s fist in the pocket of appellant’s tight fitting pants. The deputy testified that he asked appellant to produce it, which appellant did. The bulge was caused by a small plastic bag containing a substance which the officer believed to be, and was later proven to be, marihuana. Appellant was arrested for possession of marihuana.

The State, in its brief to this Court, asserts that the marihuana was discovered as the result of a search incident to an arrest for public intoxication. There is no showing in the record that any arrest for public intoxication was made. The deputy testified several times that he had formed the opinion that appellant was drunk and had decided to arrest him, but had not done so, when he asked him to produce the bulge in his pocket. There was no arrest for public intoxication and therefore the search was not incident to such an arrest. The marihuana cannot be admitted as having been discovered by a search incident to an arrest. The arrest did not occur until after the search.

Since there was no arrest, and no probable cause to arrest, we must examine the stop and search in order to determine if it comes within the purview of the doctrine of stop and frisk whereby police can make brief investigatory stops of individuals and check them for weapons under certain circumstances. These stop and frisk operations are lesser intrusions into a person’s sphere of privacy than a formal arrest but are nevertheless subject to the Fourth Amendment guarantees against unreasonable search and seizure, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and “It is clear that protection afforded by the Fourth Amendment and Article I, Sec. 9. Texas Constitution, extends to probationers.” Tamez v. State, Tex.Cr.App., 534 S.W.2d 686, 692. The stop in this case was proper.

An officer in the course of an investigatory stop must be allowed to take the steps necessary for his personal safety and the safety of those in the immediate area. It has been held that in pursuit of this objective a brief frisk to check for weapons is not prohibited by the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Duncan v. State, Tex.Cr.App., 549 S.W.2d 730. A frisk is a search, albeit less intrusive than a full search incident to an arrest, but it is still an intrusion into an individual’s right to privacy and before he can make it “[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880.

This requirement must not become a mere form of words. To allow searches without actual justification would eviscerate the Fourth Amendment guarantees against unreasonable search and seizure. The test is whether the facts known to the officer at the moment of the stop and search would warrant a man of reasonable caution in belief that the action taken was appropriate.

In Keah v. State, Tex.Cr.App., 508 S.W.2d 836, 839, we explained the relevant considerations in determining the lawfulness of a protective search for weapons with brief quotes from the leading cases:

“In Sibron v. New York, 392 U.S. 40, at 64, 88 S.Ct. 1912, at 1903, 20 L.Ed.2d 917, the Supreme Court said:
‘In the case of the self-protective search for weapons, [the police officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra.
In Terry v. Ohio [392 U.S. 1] at 21, 88 S.Ct. at 1880, it was stated:
‘. . . [I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’

And later:

‘The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ Terry, supra, at 27, 88 S.Ct. at 1883.
We have quoted extensively from Terry v. Ohio in order that the test may be more clearly understood. We must now ask what ‘specific and articulable facts’ appear in the record which would warrant a self-protective search for weapons.”
The facts in the Keah case are also instructive today. Here is a part of what the officer in Keah relied on:
“Finally, we reach the question of whether [officer] Proctor’s observation of a ‘large bulge’ in appellant’s pocket and appellant’s failure to reply to Proctor’s question, standing alone or coupled with his prior observations, was sufficient to justify a self-protective search for weapons. At no point did Proctor testify that he thought the bulge was a weapon; at no point did he testify that he thought appellant was armed and dangerous; at no point did he testify that he believed his safety or that of others was in danger. When asked what he believed the bulge to be, he stated, T did not know whether it would be a weapon or what it would be.’ When asked if he had any reason to believe appellant may have been a dangerous or suspicious character he replied, ‘I did not know who he was.’ The only reason given by the officer for the seizure was: T reached in his pocket to see what it was.’ ”

The “specific and articulable facts” in this case are even less supportive of the officer’s actions than in Keah v. State, supra. Instead of a “large bulge” the officer saw a bulge half the size of a man’s fist. The only reason “given by the officer for requiring appellant to produce the object was stated by the officer at the hearing: “I asked him to produce the bulge because I, myself, didn’t know if it was a weapon or what.” The State produced no evidence of specific and articulable facts that would support a conclusion, had one been made, that the bulge was a weapon, that appellant was armed and dangerous, or that he believed his safety or that of others was in danger. The court should have excluded the illegally seized marihuana from evidence.

The orders revoking probation are set aside and the causes remanded.

DALLY, Judge,

dissenting.

There was probable cause both to arrest and search the appellant and the marihuana which he had in his possession was lawfully obtained. Officer Elkin was answering a disturbance call. He saw the appellant who fit the description of the man he was looking for on the side of a four lane highway in an industrial area on the outskirts of Houston at approximately 1:30 p. m. The flow of traffic was moderate to heavy in the daylight hours. The officer who was in full uniform and driving a marked patrol car stopped, engaged the appellant in conversation, and asked the appellant to identify himself. The appellant’s speech was slurred, he was running his words together, he appeared to be “cotton mouthed,” he was unsteady on his feet, and leaned against the patrol ear. Although the officer was from one and one-half to two feet away from the appellant he could not detect the smell of an alcoholic beverage on the appellant’s breath. The officer concluded that the appellant “was intoxicated by some unknown substance.” The appellant in this condition was walking near a four lane highway on which were travelling “all kinds [of] cars, trucks, and trailer rigs.” There was probable cause to believe that the appellant while in a public place was under the influence of some substance to the degree that he would endanger himself or another. See V.T.C.A. Penal Code, Sec. 42.08(a); Balli v. State, 530 S.W.2d 123 (Tex.Cr.App.1975); Bentley v. State, 535 S.W.2d 651 (Tex.Cr.App.1976); Dickey v. State, 552 S.W.2d 467 (Tex.Cr.App.1977). The officer had probable cause to arrest and search the appellant. It was at this time that the officer said:

“I had already drawn a conclusion that the [appellant] was intoxicated. I did observe the bulge in his right front pocket. I asked him to produce the bulge because I myself didn’t know if it was a weapon or what. He started pulling it out and I could see it was a plastic baggie.”

The officer as well as an expert witness identified the material in the bag as marihuana. The marihuana was lawfully obtained and the court did not err in admitting it in evidence. The judgments should be affirmed. I dissent.

      . Appellant testified he had that morning quit his job in a nearby plant and was waiting for a friend who worked at the plant to get off work and give him a ride back to his home.

      . We also note that there was not probable cause to arrest for public intoxication. In order to arrest for public intoxication under V.T. C.A., Penal Code Sec. 42.08, the arresting officer must have reason to believe the suspect is intoxicated “to the degree that he may endanger himself or another.” In this instance appellant was walking along a sidewalk in the early afternoon without any difficulty when first observed by the officer. Only on close inspection did Davis appear to the officer to be intoxicated because he was somewhat unsteady on his feet and his speech was slurred. There was no indication that he was in any way a danger to himself or anyone else. There was no probable cause for an arrest for public intoxication, had there been such an arrest. Cf. Dickey v. State, Tex.Cr.App., 552 S.W.2d 467.


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

text:
    Charles Ray GOODEN, Appellant, v. The STATE of Texas, Appellee.
    No. 53807.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 24, 1979.
    William C. Denton, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

W. C. DAVIS, Judge.

Appellant was convicted of the offense of aggravated robbery, and the jury assessed his punishment, enhanced by one prior felony conviction, at twenty-five years confinement in the Texas Department of Corrections.

On original submission, this appeal was affirmed by this Court in a per curiam opinion, 558 S.W.2d 897, delivered December 7, 1977. Leave to file appellant’s motion for rehearing was granted on January 18, 1978. In this motion for rehearing, appellant raises a ground of error not previously raised on original submission. He now contends that there is fundamental error in the court’s charge to the jury.

The indictment in the instant case alleges in part that appellant:

“. . . did then and there unlawfully while in the course of committing theft of one camera owned by Jack Robinson, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a pistol . . .”

The trial court charged the jury:

“Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of January, 1975 in Harris County, Texas, the defendant, Charles Ray Gooden, either acting alone or together with another or others, did without the effective consent of Jack Robinson the owner, take and exercise control over the corporeal personal property of Jack Robinson to-wit, one camera from the possession of Jack Robinson with intent then and there to deprive Jack Robinson of said property, and that said defendant, in so doing, and with intent to acquire and maintain control of said camera intentionally, knowingly or recklessly caused bodily injury to said owner or intentionally or knowingly threatened or placed said owner in fear of imminent bodily injury or death, and if you further find from the evidence beyond a reasonable doubt that in so doing the foregoing acts, if you do so find, the defendant caused serious bodily injury to Jack Robinson or defendant used or exhibited a deadly weapon, to-wit, a pistol, then you will find defendant guilty of aggravated robbery as charged in the indictment. “If you do not so believe, or if you have a reasonable doubt thereof, you will find the defendant not guilty . . ”

The indictment in the instant case alleged robbery under V.T.C.A., Penal Code, Section 29.02(a)(2), by alleging that the appellant intentionally and knowingly threatened and placed the complainant in fear of imminent bodily injury and death. The indictment then alleged the aggravating factor “by using and exhibiting a deadly weapon, namely, a pistol.” V.T.C.A., Penal Code, Section 29.03(a)(2).

The instant indictment and charge are practically identical to those in Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977) and Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977). As this Court held in Robinson and reaffirmed in Davis,

“This charge authorized the jury to convict the appellant as charged of aggravated robbery if they found, among other things, he intentionally, knowingly or recklessly caused bodily injury to the complainant and if they further found beyond a reasonable doubt, the appellant caused serious bodily injury to the complainant. This was simply not alleged in the indictment. Further the charge would have authorized a conviction for aggravated robbery if the jury found he intentionally, knowingly or recklessly caused bodily injury by using and exhibiting a deadly weapon. This was not alleged either. In fact, the charge authorized a conviction under every conceivable theory under V.T.C.A., Penal Code Section 29.02 and Section 29.03, rather than limiting it to the theory alleged in the indictment.”

In both cases, we held this error in the charge to be fundamental, requiring reversal even though no objection was made to the charge at trial. In the instant case, no objection to the charge was made, but since the charge authorizes a conviction on a theory not charged in the indictment, we find fundamental error.

Appellant’s motion for rehearing is granted and the judgment is reversed and the cause remanded.

DALLY, Judge,

concurring.

The jury instruction does authorize a conviction for a theory not charged in the indictment. Such a charge constitutes error; however, there was no objection to the charge at the time of trial. I believe that in these circumstances, where no objection to the charge has been made in the trial court, this Court, should determine from the record whether harm resulted from the giving of the erroneous charge. See the opinion which I authored while a Commissioner in Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976). However, the majority of this Court has since held that the error is fundamental and reversal is mandated in instances such as this. E. g., Robinson v. State, 553 S.W.2d 371 (Tex.Cr.App.1977); Davis v. State, 557 S.W.2d 303 (Tex.Cr.App.1977); Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.1978); Jones v. State, 566 S.W.2d 939 (Tex.Cr.App.1978); Smith v. State, 570 S.W.2d 958 (Tex.Cr.App.1978); Brewer v. State, 572 S.W.2d 940 (Tex.Cr.App.1978); Armstead v. State, 573 S.W.2d 231 (Tex.Cr.App.1978); Johnson v. State, 573 S.W.2d 778 (Tex.Cr.App.1978); Cleland v. State, 575 S.W.2d 296 (Tex.Cr.App.1978); Fella v. State, 573 S.W.2d 548 (Tex.Cr.App.1978); Bridges v. State, 574 S.W.2d 143 (Tex.Cr.App.1978); Donald v. State, 574 S.W.2d 119 (Tex.Cr.App.1978); Moore v. State, 574 S.W.2d 553 (Tex.Cr.App.1978).

I have again expressed my view which I still believe is correct, but the law of this State is now expressed by the majority in the numerous cases cited; therefore, I concur in the reversal of the judgment in this case.

DOUGLAS and TOM G. DAVIS, JJ., join in this concurring opinion.

      . I believe the better reasoning applicable to this case is that in Williams v. State, 535 S.W.2d 352 (Tex.Cr.App.1976) but since this Court has overruled Williams by the Robinson and Davis cases, I reluctantly concur.


author: CLINTON, Judge.

text:
    Robert McGINNIES, Appellant, v. The STATE of Texas, Appellee.
    No. 57275.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Jan. 24, 1979.
    Stan Brown, Abilene, for appellant.
    Lynn Ingalsbe, Dist. Atty., Patricia A. Elliott, Crim. Dist. Atty., and Aleta Hacker, Asst. Dist. Attys., Abilene, for the State.
    Before DALLY, W. C. DAVIS and CLINTON, JJ.
   OPINION

CLINTON, Judge.

Appellant was found guilty of burglary in that he intentionally or knowingly entered a building not open to the public without the effective consent of the owner thereof, and did commit the felony offense of criminal mischief by damaging an automobile in an amount of pecuniary loss of over $200.00 but under $10,000.00. Upon a finding that he had been previously convicted of a felony the jury assessed his punishment at 18 years’ confinement and thereafter the trial court duly sentenced appellant to serve a term of not less than 5 nor more than 18 years in the Texas Department of Corrections. This appeal timely followed on two grounds of error: first, sufficiency of evidence to sustain a conviction in this circumstantial evidence case is challenged and, second, the indictment is asserted to be duplicitous because alleging two culpable mental states.

The building entered is Rocket Oldsmobile at 1800 South First in Abilene, Taylor County, Texas. Sunday morning, July 11, 1976 — the alleged date of the offense — just before 9:00 a. m., Carlton Allison, a company salesman, unlocked the west doors of and entered onto the showroom floor, turned right and went directly to the service department to obtain keys to an automobile he was going to deliver to a customer that morning; while in the process of obtaining the keys he heard someone toward the back of the service department and a kind of noise that sounded like a bucket or something had been moved or set down. Proceeding in the direction of the noise he observed a person, called out “what is going on here?” and saw the person leaving the area through a back door that led into a storage area and, as he moved closer, saw the person crawling out a window and exiting the building. Admitting his view of the intruder was fleeting at best Allison was able to say only that he observed a black person, believed to be a male, wearing light, perhaps beige colored pants and a blue shirt with a small light tan or beige hat or cap. Shortly thereafter, Donald T. Paige, Jr., the owner and general manager of Rocket Oldsmobile, appeared and he and Allison found that several automobiles in the service department had been splashed, inside and out, with a carburetor cleaning fluid, apparently containing a solvent called naphtha, and battery acid, causing extensive damage to both new and used cars including a 1972 Oldsmobile Toronado, owned by appellant, who had earlier brought it in for repair, that was more severely damaged.

That the building was unlawfully entered and several of the automobiles therein were severely damaged by vandalistic application of various liquids identified by one or another witness are not disputed. The critical issue in this circumstantial evidence case is whether proof is sufficient to support the verdict of the jury that appellant was the perpetrator. Even on this issue, however, the contest is not so much over disputed facts but the permissible inferences to be drawn from the factual testimony presented by the State and appellant.

In August 1975 a loan officer with an Abilene bank approved a loan to appellant to buy a 1972 Oldsmobile Toronado from a local automobile dealer; the purchase note was co-signed by Bill Smith, appellant’s employer, who saw that-the payments were made by deducting the amount from appellant’s wages. On July 11,1976, balance due on the note was $2,387.20 and the Toronado was insured against such comprehensive risks as damage from vandalism. Before July 11, 1976 — on a date not shown — appellant brought his Toronado to Rocket Oldsmobile for repair of front wheel drive axle and for an estimate of front section body damage — the former at a cost of $260.00 and the latter coming to some $400.00. About a week before July 11, 1976, appellant was notified that repair work had been completed but he had not paid the amount due nor, of course, obtained possession of his automobile.

Appellant resided at 943 North San Jose on “the north side of town.” According to his witness, Melvin Walker, who owns and operates a business of cleaning old and new cars at 5201 North First, appellant came by in his Ford pick-up on the Sunday morning in question at about 8:00 a. m., they talked about fifteen or twenty minutes and appellant left with about a gallon of naphtha he bought from Walker, he said, to wash the engine of his pick-up; however there is no evidence that he actually did so.

Upon his arrival at Rocket Oldsmobile shortly after 9:00 a. m., hearing a report from Allison, surveying the damage and calling the police, Paige and investigating officers noticed by the west door of the service department a fairly old model Ford pick-up that had not been there the evening before and one that he did not recognize— subsequent registration check revealed that the Ford pick-up was registered to appellant and that he still owned and was driving that Ford pick-up Sunday morning seems uncontroverted. Raising the hood of the Ford pick-up, Paige and others detected that its engine and radiator were still warm to touch, indicating it had been driven within “the last couple of hours.” The pick-up was facing south, its rear end being toward South First, a street that runs east and west, and although it was closer to the rear of the building the pick-up was visible from South First.

As he was driving from his home at 218 North Bowie going east on South First on his way to Sunday School “somewhere around 9:30 a. m.,” Dean Allen, a friend of appellant, saw him walking west on South First; according to Allen appellant was wearing dark colored pants, a sort of red jacket — either red or orange colored that was a loud color — and was not wearing a hat. Allen recalled that the weather was mild and it was not raining. Being late to his destination, Allen did not stop for appellant.

Another friend of appellant lived at 302 Portland with his wife, Marie Stillwell— eight tenths of a mile from Rocket Oldsmobile on a street that intersects with South First. Charles Allen Kidd, obviously a reluctant witness for the State, testified that between 9:00 and 9:30 a. m. on the same Sunday morning appellant came to his house and requested Kidd to drive him to his home on San Jose, telling Kidd that his pick-up “had drowned out” and “is stalled” and asking for help in looking for some “booster cables.” While appellant was in the Kidd residence, Stillwell, who was suffering from asthma and hayfever, noticed an unusual odor that made her think something was burning in the house; the odor remained after Kidd and appellant left to the extent that she went through the house looking for something that was burning. Departing his residence, under the directions of appellant, Kidd drove back to South First street, turned east toward Rocket Oldsmobile and after they went by it appellant told Kidd they had passed his pick-up; appellant then asked Kidd to drive on to the residence of Willie Charles Johnson so that Johnson could go back and collect the pick-up, appellant explaining that he did not want to get it himself because there were police cars by it and he had outstanding traffic tickets. With Johnson in his car, Kidd and appellant went back to the area of Rocket Oldsmobile and let Johnson out near a Texaco station on South First and observed him walk over to the premises of Rocket Oldsmobile where police cars were parked behind appellant’s pickup. Then Kidd drove appellant to his home on North San Jose. During these movements Kidd sensed a peculiar odor about appellant, a smell that “sort of stung your nose . . made your nose burn,” that he had not noticed until appellant got in his automobile, and also observed that appellant seemed to have something splashed on his clothing that, because he had been walking in rain, Kidd “presumed” was made by the rain. The next day, being investigated himself, Kidd told Officer Skiles the odor about the person of appellant and was taken to Rocket Oldsmobile to smell the odor in the service department. He testified on direct examination by the State that the service department odor burned his nose but that he “couldn’t say” it was the same kind of smell on appellant; on cross-examination by appellant, Kidd stated that he “can’t say for certain” that the two odors were the same. Also on cross-examination Kidd believed appellant was wearing blue pants, blue and off-red checked shirt, but was positive his pants were not beige or tan.

Meanwhile, back at Rocket Oldsmobile, Allison and Paige were cleaning cars and areas of the service department, opening all doors and windows to dissipate the odor in it, and officers were conducting their investigation of the premises and the Ford pick-up found near west doors of the service department — efforts at lifting latent fingerprints were unsuccessful and the damaging liquids were not tested. Willie Charles Johnson arrived, started appellant’s pick-up and was leaving the area when stopped by officers. Officer Hutcheson testified that when he first examined the interior of the pick-up he did not notice any keys in it and cross-examination conceded the possibility that keys might have been in the ignition, but he was certain that Johnson had keys for the ignition when stopped. Kidd and Hutcheson testified that Johnson did not have the peculiar, distinctive odor about him and no one noticed a container or smell of naphtha in or about the pick-up sufficiently to remark about it in testimony.

Learning that the Ford pick-up was registered to appellant and his address, Officer Hutcheson contacted Officer Danny Spohn and requested him to observe the residence of appellant at 943 North San Jose. On surveillance Officer Spohn saw Kidd pull into the drive at that address and watched a person get out of the car and walk into the house — the black male was wearing a dark blue short sleeved shirt, light brown or khaki colored pants and a small light colored or white hat. The features of the person and clothing he observed were the same as descriptions given him by Officer Hutcheson.

Monday, July 12, 1976, a warrant was issued for arrest of appellant and about noon — whether in response to the warrant is not shown — appellant presented himself to Officer Skiles at the Abilene Police Department.

The court charged the jury on circumstantial evidence in the usual form and correctness of the charge is not challenged. We believe the evidence was sufficient to support the verdict of the jury and, on the other hand, that the evidence failed to raise a reasonable hypothesis other than the guilt of appellant as required by, e. g., Nilsson v. State, 477 S.W.2d 592, 597 (Tex.Cr.App.1972).

A burglary to commit criminal mischief such as alleged and proven in this case does not ordinarily result in its perpetrator possessing “fruits of the crime” as in say burglary with commission of theft. But in the situation presented here it might be reasonably expected that the perpetrator would not only come away with an odor of naphtha, carburetor cleaner and battery acid but also with stains of the liquid on his clothing from sloshing, splashing, and spattering the fluids on or about automobiles, cabinets and other surfaces in the service shop. As Kidd was driving appellant about in his car he not only noticed the odor emanating from appellant, but also observed notable splashes of something on his clothing that, because it was raining, Kidd “presumed” was rain.

Indeed, every witness who encountered appellant that Sunday morning detected a peculiar odor about his person and appellant in effect concedes the small by presenting testimony of having acquired it in another manner — from Walker for the asserted purpose of cleaning the engine in his pick-up. However, as already pointed out, no one who inspected the pick-up reported a container of naphtha or a similar odor coming from its engine, nor is there any evidence that during the time appellant is said to have obtained naphtha from Walker and discovery of the pick-up appellant applied naptha to its engine. Officers who stopped Johnson from driving the pick-up away did not detect a smell of naphtha or carburetor cleaning fluid about him. Thus, the jury would have been justified in rejecting the suggestion that the admitted odor about the person of appellant came from handling naphtha which Walker said had been obtained from him.

Appellant himself adduced evidence that at about 8:00 a. m. on the Sunday morning in question, he was in his pick-up at a business location at 5201 North First. Shortly after 9:00 a. m. he is placed by his friend Allen on South First in the vicinity of Rocket Oldsmobile apparently on his way to the Kidd residence on a street that intersects with South First.

Several witnesses testified that in examining appellant’s pick-up shortly after the burglary was discovered they-felt the hood and radiator were warm to touch, thereby indicating that it had recently been driven. In attempting to collect the pick-up for appellant and at his request, Johnson had keys to start it. Thus, there was sufficient evidence for the jury to conclude not only that appellant’s pick-up had been just recently driven on to the premises of Rocket Oldsmobile but also that appellant, knowing its location and arranging for Johnson to recover it, had himself driven the pick-up to its location.

Moreover, appellant resided at 943 South San Jose and at about 11:00 a. m. a person who got out of the car driven by Kidd was observed by a surveilling officer to enter the residence wearing clothing that matched the description given by Allison, who saw the intruder exit out the old wash room and out the south window of Rocket Oldsmobile; a dark blue shirt, light brown or khaki colored pants and a light colored or white small hat.

To present the jury with a reasonable hypothesis other than the guilt of appellant, his brief points to testimony from a State’s witness that it would have been more logical for a burglar to park a pick-up by the south window rather than the west door where it could be viewed from the street; according to Kidd, appellant was wearing blue pants and a red shirt; fingerprints were not lifted from any surface at Rocket Oldsmobile; the liquids found to have damaged the vehicles were not tested in any manner; the skin of appellant was not shown to have sustained any damage or injury such as might be caused by the damaging liquids; another witness observed appellant on that Sunday morning walking west on South First Street wearing dark pants and a red jacket; at approximately 8:00 a. m. on the morning in question, appellant had bought naphtha for the asserted purpose of cleaning his pick-up engine; repairs for damages from vandalism on the 1972 Oldsmobile Toronado had been completed at a cost of $75.00 and the value of the car was estimated to be between $1,750.00 and $2,200.00.

Having reviewed all evidence, including the testimony to which we have alluded, in this circumstantial evidence case in light of the presumption that the accused is innocent, 24 Tex.Jur.2nd, Evidence, Sec. 742, p. 422, quoted approvingly and applied in Ysasaga v. State, 444 S.W.2d 305, 309 (Tex.Cr.App.1969), we believe that a conclusion of guilt was warranted by the combined and cumulative force of all the incriminating circumstances, and there was ample evidence from which the jurors, properly charged as they were, might reasonably conclude that every reasonable hypothesis other than guilt was excluded. More than mere presence in the vicinity of the burglary and what might be considered flight, cf. Cascio v. State, 145 Tex.Cr.R. 61, 165 S.W.2d 1001 (1942); Moore v. State, 532 S.W.2d 333, 337 (Tex.Cr.App.1976); Robinson v. State, 570 S.W.2d 906 (Tex.Cr.App., P.3, 2nd Q., 1978), incriminated appellant: presence of his abandoned pick-up on the premises of the burglarized building; the peculiar odor of liquids used and found within the burglarized building that permeated his being and attracted every person with whom he came in contact and the stains observed on his clothing; matching descriptions of clothing worn by the intruder as he left the burglarized building and the person who shortly thereafter left the Kidd automobile and entered appellant’s residence; the inherently contradictory explanations appellant gave Kidd as to the condition of his pick-up; the presence of appellant’s 1972 Oldsmobile Toronado with an unpaid repair bill of $260.00 which was fully insured against, inter alia, damage caused by vandalism and was the most severely damaged of all other automobiles in the service area and its missing work order.

Characterizing it as “very similar in its facts,” appellant relies on Greer v. State, 437 S.W.2d 558 (Tex.Cr.App.1969) for reversal in his case. But the problems that confronted the Court in Greer are resolved by more than sufficient evidence here. Thus, in Greer the Court was unable to find sufficient evidence to show that the burglary there committed was for the purpose alleged whereas here there can be no doubt that entry was made to commit the felony offense of criminal mischief by damaging the motor vehicles therein, as was abundantly shown; absence of a witness to the burglary in Greer is supplied here by the presence and observations of Carlton Allison, the salesman who was the first to arrive at Rocket Oldsmobile and surprise the intruder in the process of his mischief. Unlike Greer who was not shown to be in, near or around the garage after he left the night before, here appellant at least through the presence of his pick-up on the premises contemporaneously with the burglary and being “abroad” of that morning coupled with the matching descriptions constitute more than a suspicion that he was indeed, about the garage Sunday morning and immediately thereafter in the neighborhood at Kidd’s house with whom he returned to the location of Rocket Oldsmobile. Finally, again unlike the situation in Greer, the evidence satisfactorily demonstrated that the 1972 Toronado Oldsmobile in the service shop was the same 1972 Toronado Oldsmobile insured by appellant — indeed, after the State proved through one of its witnesses the purchase of the automobile and paying of premiums for insurance covering it, appellant produced the co-signer of the purchase note who possessed a copy of the insurance policy and went with appellant to Rocket Oldsmobile to collect the damaged vehicle and assist in repairing it. Clearly, therefore, the State proved here what it failed to show in Greer and, accordingly, reliance upon Greer is misplaced.

Finding the evidence sufficient to support the verdict of the jury in this circumstantial evidence case, the first ground of error is overruled.

In his second ground, appellant contends that the court erred in refusing to quash indictment “because it alleged two culpable mental states,” but actually the record reflects a motion to quash indictment June 26, 1977 and another motion to quash indictment on different grounds filed June 24, 1977, while there is in the record only a single order dated June 29, 1977, denying defendant’s motion to quash indictment, without specifying which motion is being ruled. Otherwise, there is no indication in the record that the earlier filed motion to quash was ever presented to, considered and decided by the court. Moreover, the motion to which the ground of error refers does not complain that the indictment alleges two culpable mental states; rather, the challenge is that the indictment is duplicitous in that it alleged appellant entered the described building and “attempted to commit and committed the felony offense of criminal mischief.” The situation thus presented by a motion alleging that the indictment is duplicitous and a ground of error asserting that it alleges two culpable mental states is complex enough but then it is further compounded by the response made by the State that focuses upon the “intentionally and knowingly” allegations in the indictment. Rather than unravel the confusion, we simply observe that in its charge the court, in applying the law to the facts, required the jury to find whether appellant “intentionally or knowingly” entered the building and therein “commit the felony offense of criminal mischief,” omitting any reference to an attempt to commit. In these circumstances we fail to find any error in the indictment that would warrant reversal.

The judgment of the trial court is affirmed.

      . After testifying that “either battery acid or carburetor cleaning fluid, which is a type of acid, or a solvent,” had been thrown on three new cars, Paige responded to a question as to whether “this carburetor cleaner, battery acid, or whatever” was already in the service department or had to have been brought in by the vandal that “you will find a container of it at every mechanic’s work stall. They use it to clean carburetors with, and then they use the naphtha to clean other parts with and also their hands with.” Later in pointing out damage reflected by a photograph in evidence, Paige observed that “this particular vehicle here had more of the carburetor acid outside, and naphtha as evidenced by the white color on the inside.”
      Melvin Walker, called by appellant, testified that he was in the business of cleaning up used and new cars and in cleaning their engines used naphtha and soap.

      . Obviously experienced in his business, Walker testified that one working with naphtha would have an odor about his person because “you can smell it a mile away” and the odor would be noticeable to others in a room or automobile because “you will carry the odor wherever you go.”

      . As Paige saw it, appellant’s Toronado was more severely damaged: the acid was “everywhere: in the front seat area, in the floor board area, even in the tape deck and front and rear seat, and all over the front and rear of the car, externally.” Difficulty that morning in ascertaining that the Toronado belonged to appellant was caused by the fact that original copies of the work order for repairing it could not be located and of all the work orders for other automobiles in the shop, it was the only one missing — indeed, at time of trial it still had not been located and Paige thought that “unusual.”

      .Nearly every other witness asked about it reported that there was or had been rain or mist that Sunday morning. We deem it appropriate to observe — as the jury may well have— that Dean was impeached on cross-examination by his admission of conviction for check swindling and revocation of probation, confinement in Texas Department of Corrections for a year or two, confinement in county jail about four months for check swindling — as best we can determine from the testimony, some four convictions.

      . A warrant officer for Department of Public Safety Highway Patrol confirmed three or four warrants and recalled a telephone conversation with appellant shortly prior to July 11, 1976, seeking to make arrangements to go before a magistrate and get the matter cleared up.

      . Monday morning Officer Hutcheson, having been told by Kidd of the odor in his car, investigated and determined that its smell was the same he had sensed at Rocket Oldsmobile the day before.

      . The trial court rules that the State had shown surprise and permitted the prosecutor to impeach Kidd with a prior sworn statement made to a police officer, reading, “I am positive that the odor inside Rocket Oldsmobile will be the same odor that was on Robert McGinnies when he came into my home on Sunday morning . . . ” — a statement that Kidd attempted to recant, insisting at trial that he “can’t be sure that was the odor.” Kidd did acknowledge that such an odor was not on Willie Charles Johnson or that he did not know if it were.

      . Allison described the odor as smelling like acid and it seems to create a fume in the air, a burning type of odor like a hot battery that is distinctive. Paige said it was a very distinctive eye-watering smell, “kind of a sulphuric type acid smell;” the windows and doors were kept open all day and half the night and the smell was there two weeks later. Lloyd Skiles, criminal investigator, observed damage done to the motor vehicles by naphtha, carburetor cleaning solution and battery acid and described the smell as distinct and strong which caused a burning sensation to the eyes.

      . There is no question about the driver being Kidd since Officer Spohn stopped the car, determined identity of its driver as Kidd and issued him a ticket for driving without a license.

      . The record does not reveal how Officer Hutcheson came by a description of clothing but as one of the first officers on the scene at Rocket Oldsmobile, presumably he obtained it from Allison, the salesman who startled the intruder in the service area; no one else was then known or had come forward unless it was Johnson, who did not testify and whose conversation with Hutcheson upon being stopped from driving away in the Ford pick-up was not revealed to the jury.

      .We are mindful that Kidd testified that appellant was wearing blue pants and a blue and off-red shirt and was certain that the color of the pants was not beige or tan and that Dean reported dark colored pants and either a red or orange jacket. As already noted, however, credibility of both in this regard is stoutly challenged by effective impeachment of each.

      . According to the State’s witness, the cost of repairs was about same as value of the damaged Tornado.

      . According to the State’s witness, the value was between $1,300.00 and $1,500.00.