author: COHEN, Justice.

text:
    Maurice L. BARCLAY, Appellant, v. Robert G. JOHNSON, Appellee.
    No. 01-84-00207-CV.
    Court of Appeals of Texas, Houston (1 Dist.).
    Feb. 14, 1985.

      Charles D. Marshall, Nassau Bay, Conway Jordon, Houston, for appellant.
    Albert L. Giddens, Pasadena, for appel-lee.
    Before EVANS, C.J., and DUGGAN and COHEN, JJ.
   OPINION

COHEN, Justice.

A jury trial resulted in a judgment for the appellee upon his claim for breach of express and implied contractual warranties and for violations of the Deceptive Trade Practices Act in the construction and sale of a home. Judgment was rendered against defendants, De-Cra Corporation, Maurice L. Barclay, Robert Allen, Wayne Denney, and Shirley Palmer Bullard for actual damages of $7,121.20, tripled to the amount of $21,363.60, plus attorney’s fees of $6,425.00. Only Barclay has appealed.

In points of error one, two, and three, the appellant argues that the trial court erred by submitting special issue one and in rendering judgment thereon because there was no evidence to support the issue, there was insufficient evidence to support the issue, and the jury’s answer to the issue was against the overwhelming weight of the evidence.

Special issue one inquired:

Do you find ... that Plaintiff, Robert G. Johnson, and Defendant, De-Cra Corporation, entered into a written contract to sell Plaintiff a house to be constructed by Defendant, De-Cra Corporation, at 3313 Park Dale, Deer Park, Texas?

This, as well as all other special issues, were answered in favor of the appellee.

An earnest money contract of February 21, 1977, signed by Robert G. Johnson and an agent for De-Cra Corporation, was admitted in evidence. This contract supports the submission of special issue number one. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). The first point of error is overruled.

The second and third points of error challenge the factual sufficiency to support the jury’s answer to special issue number one. In considering factual sufficiency points, we consider all the evidence, including that supporting and not supporting the jury’s finding. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The written contract evidencing the sale was admitted in evidence and plainly refers to Robert G. Johnson and De-Cra Corporation as the buyer and seller, respectively, of a house to be constructed at 3313 Park Dale, Deer Park, Texas. There was no evidence disputing the authenticity of the signatures or the authority of the signers. Furthermore, the appellant has stated in his brief that this document was “a contract for the sale and purchase of real estate”. The evidence is sufficient. Points of error two and three are overruled.

In points of error four, five, and six, the appellant argues that the trial court erred in submitting and rendering judgment upon special issues two, three, four, four(c), five, five(e), six, six(c), and six 6a(c) because there was no evidence and insufficient evidence to support the verdict, and the jury’s answers were against the overwhelming weight and preponderance of the evidence. In these issues, the jury found that Maurice L. Barclay falsely represented to Robert Johnson that the De-Cra Corporation was (1) a bonded builder, (2) a bonded registered builder, (3) a member of the Greater Houston Builders Association, and (4) a G.H.B.A. Bonded Builder.

The appellee’s exhibit one was a brochure that he was given at the De-Cra Corporation sales office. He testified that he read the brochure when he looked at the model homes, prior to signing the earnest money contract.

The front cover of the brochure contains two logos, one for “De-Cra Homes”, and the other for “Union Realty”. Page 1 of the brochure is a letter from the De-Cra Corporation signed by Maurice Barclay, Chairman of the Board, which states:

We’re a Registered Bonded Builder, which means that your home is backed by the most rigid of workmanship and warranty standards. All DE-CRA HOMES meet or surpass FHA building codes. We’re members of the Greater Houston Builders Association, Texas Association of Builders and the National Home Builders Association....

The top of the third page states in large print, “From a Bonded Registered Builder: Quality, Security, Warranty”, and the De-Cra Corporation is referred to repeatedly therein as a “Bonded Registered Builder”.

The appellee testified that he read these representations, believed them, and, because of them, thought he could put his faith in those making the representations. The appellee met with Barclay personally, after signing the earnest money contract, concerning changes in the floor plan, and again after the start of construction. Barclay later signed a list of extras to be included in the construction.

Barclay admitted that in February, 1977, when the earnest money contract was signed, De-Cra Corporation was not a member of the Greater Houston Builders Association and was not a bonded builder. Letters were admitted in evidence from “De-Cra Homes”, signed by Bob Allen, President, and from Union Realty, signed by Maurice Barclay, President, showing that the Greater Houston Builders Association, on or about January 6, 1977, instructed De-Cra Homes to delete any reference to Greater Houston Builders Association and any mention of being a “Bonded Registered Builder” from advertising media used for De-Cra Corporation.

Despite this overwhelming evidence of false representations, the appellant contends that, because he did not personally meet with the appellee before signing the earnest money contract, he cannot be held individually liable for the false representations he made in the brochure in his capacity as Chairman of the Board of De-Cra Corporation. Barclay never denied that the signature on the brochure was his and was placed there with his consent. There was no evidence that Barclay, who was instructed on January 6, 1977, to remove the false representations from the brochure, sought to collect the misleading brochures, or to inform the appellee that the representations therein were false.

It has long been the law in Texas that a corporate agent knowingly participating in a tortious or fraudulent act may be held individually liable, even though he performed the act as an agent for the corporation. Seale v. Baker, 70 Tex. 283, 7 S.W. 742 (1888); Kinkler v. Jurica, 84 Tex. 116, 19 S.W. 359 (1892); Wagner v. Morris, 658 S.W.2d 230 (Tex.App.—Houston [1st Dist.] 1983, no writ). Knowing participation in a tortious act will render the corporate agent personally liable, while the mere breach of a corporate contractual obligation will not. Gardner Machinery Corp. v. U.C. Leasing, 561 S.W.2d 897, 899 (Tex.Civ.App.— Beaumont 1978, writ dism’d). It is not necessary that the “corporate veil” be pierced in order to impose personal liability, as long as it is shown that the corporate officer knowingly participated in the wrongdoing. Permian Petroleum Co. v. Barrow, 484 S.W.2d 631 (Tex.Civ.App.—El Paso 1972, no writ).

The rule stated above was not criticized, distinguished, or abandoned in Karl and Kelly Co. v. McLerran, 646 S.W.2d 174, 175 (Tex.1983); however, in Karl and Kelly, the Court did reverse a post-answer “default” .judgment under the Deceptive Trade Practices Act which imposed personal liability on corporate agents. The Court noted that there was no direct evidence of a sham corporate structure, that corporate formalities were not followed, or that the agents acted as individuals. In the instant case, there was a trial, not a post-answer default judgment, and the jury found that the appellee was an officer, director, and shareholder of De-Cra Corporation and that De-Cra Corporation “was a sham used to perpetuate fraud and avoid personal liability.” Finally, Karl and Kelly appears, although it is unclear in the opinion, to have been a suit for breach of express warranty, based on unfulfilled representations that the home contracted for in that case would be constructed in a workmanlike manner. Breach of warranty sounds in contract and is a cause of action under sec. 17.50(a)(2) of the Act. In the case at bar, a different section of the Act, sec. 17.46, was breached. Sections 17.46(b)(2), (3), (5), and (7), declare misrepresentations of fact to be unlawful. These sections grant a cause of action sounding in tort. See generally Smith v. Baldwin, 611 S.W.2d 611 (Tex.1980).

We recognize the tension between our holding in this case and in Wagner v. Morris, supra, with the Supreme Court’s holding in Karl and Kelly Co. v. McLerran, supra. We believe the McLerran case is distinguishable for the reasons stated. If it is not distinguishable, however, we elect to follow the line of longstanding and influential opinions led by Kinkler v. Jurica, supra, and Permian Petroleum Co. v. Barrow, supra. In Kinkier v. Jurica, the Supreme Court adopted the opinion of the Commission of Appeals, which stated:

The charge of the court correctly stated the law as to the personal responsibility of the defendants as directors of the association to be that they are personally liable to persons who may sustain losses in consequence of false representations made by such directors to them or to the public at large, when such representations are fraudulently and designedly made, or when ignorantly made, concerning facts susceptible of knowledge, and of which it is the official duty of such directors to obtain correct information. Seale v. Baker, 70 Tex. 286, 7 S.W.Rep. 742.

In College Park Electric Belt Line v. Ide, 40 S.W. 64, 65-66 (Tex.App.1897), the Court wrote:

Directors are personally liable to those who are damaged by their false representation though ignorantly made, if it concerns matters pertaining to the corporation of which they should have been officially cognizant.

In Dollar v. Lockney Supply Co., 164 S.W. 1076, 1079 (Tex.App.—Amarillo 1914, no writ), the Court wrote:

We think it is clearly held in this state that the directors of a corporation are personally liable for false representations made by them to an injured party, whether they know they are false or not.

The rule has also been recognized by a federal court applying Texas law. In L. C.L. Theatres, Inc. v. Columbia Pictures Industries, 619 F.2d 455, 457 (5th Cir. 1980), the court quoted the following from Permian Petroleum Co. v. Barrow, supra:

In these circumstances, it is not necessary that the corporate veil be pierced or even discussed. An officer or any other agent of a corporation may be personally as responsible as the corporation itself for tortious acts when participating in the wrongdoing.

The rule has been recognized and applied in many other cases, including Gardner Machinery Corp. v. U.C. Leasing, Inc., supra; Earthman’s, Inc. v. Earthman, 526 S.W.2d 192, 206 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ); Koenning v. Manco Corporation, 521 S.W.2d 691, 703 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.), 531 S.W.2d 805 (Tex.1975); Searle-Taylor Machinery Company, Inc. v. Brown Oil Tools, Inc., 512 S.W.2d 335, 338-39 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.). See also Norwood Builders, Inc. v. Toler, 609 S.W.2d 861 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref d n.r.e.).

Barclay’s signature in the brochure was a false representation of a material fact, which the appellee relied upon to his detriment in signing the earnest money contract. This constituted personal participation in corporate wrongdoing sounding in tort. It was, therefore, sufficient to support a judgment against Barclay as an individual. Points of error four, five and six are overruled.

In points of error ten, eleven, and twelve, the appellant argues that the trial court erred in submitting and rendering judgment based on special issue number fourteen because there was no evidence and insufficient evidence to raise the issue, and that the jury’s answer to issue fourteen was against the overwhelming weight and preponderance of the evidence.

Special Issue Fourteen inquired:

Do you find ... that the De-Cra Corporation was a sham used to perpetuate fraud and avoid personal liability?

ANSWER: We do.

We need not decide whether these points of error are meritorious because there was no harm in submitting them. As we have held in our discussion of points of error four, five and six, the “corporate veil” does not have to be pierced in order to impose personal liability upon a corporate officer who knowingly participated in the wrongful transaction. Wagner v. Morris, supra; Permian Petroleum Co. v. Barrow, supra. The jury’s answer to special issue fourteen was superfluous because it had already made findings essential to the appellant’s personal liability when it found that he made false representations. Point of error fourteen is overruled.

In points of error seven, eight, and nine, the appellant argues that the trial court erred in submitting special issues seven, eight and nine and rendering judgment thereon because there was no evidence to support submission of the issues or insufficient evidence to support the jury’s verdict. In special issue seven, the jury found that the appellant made an express warranty that the house would be built in a good and workmanlike manner, and in special issue eight, the jury found that such express warranty was false and that the house was not built in a good and workmanlike manner. In special issue nine, the jury found that the false warranty was a producing cause of damages, although no dollar amount was set in that issue. The appellant’s contention is that there was simply no evidence that he, as an individual, made any warranty to the appellee. He points out that the “seller” of the house was the corporate defendant, DeCra Corporation, and that he acted only in an official corporate capacity.

We need not review these issues because they would not be grounds for reversal, even if they were meritorious. Texas Rule of Civil Procedure 434 provides that no judgment shall be reversed on appeal and a new trial ordered in any case due to the trial court’s legal error during trial, unless the appellate court believes that the error amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. The alleged error in points seven, eight, and nine could not have caused the rendition of an improper judgment in this case because the appellee prevailed on a different, separate, and independent ground of recovery under the Deceptive Trade Practices Act.

The breach of an express warranty, which causes actual damages, is grounds for relief under the Deceptive Trade Practices Act, Tex.Bus. & Comm.Code sec. 17.-50, and was punishable in 1977, at the time of the breach of this warranty, by triple damages and attorney’s fees. However, even if the appellee presented insufficient evidence of a warranty cause of action under sec. 17.50, he did plead and prove a cause of action under secs. 17.46(b)(2), (3), (5), and (7). The jury found that the misrepresentations that the appellant was a registered bonded builder belonging to the Greater Houston Builders Association were a producing cause of the appellant’s damages, which were found to be $7,121.20. At the time of these violations of sec. 17.46, such acts were punishable by three times the actual damages and reasonable attorney’s fees. The Court submitted a general damage issue merely asking, “What sum of money, if paid now in cash, would reasonably compensate plaintiff for his actual damages, if any?” This was the only special issue calling for an answer in dollars and cents, and the jury did not find one particular amount of damages attributable to the breach of express warranty under see. 17.50 and another figure for the deceptive acts condemned by sec. 17.46. Nevertheless, there is no point of error or argument on appeal that the measúre of damages is different for the two claims, and no point of error or argument that the appellant objected to the submission of one special issue on damages for all claims or requested separate damage issues for separate causes of action.

We conclude that the judgment should be affirmed as rendered, regardless of whether the express warranty claim was proved, because the appellee successfully proved a different, independent cause of action entitling him to the same amount of damages.

Points of error seven, eight and nine are overruled.

The appellee has filed a cross-point complaining of the jury’s failure to award attorney’s fees on appeal in response to special issue thirteen. Special issue thirteen inquired as to the amount of reasonable attorney’s fees for the appellee’s attorney for legal services in the district court, for appeal to the Court of Appeals, for application for a writ of error to the Supreme Court, and for services in the Supreme Court if writ of error was granted. The jury found the amount of $6,425.00 to be a reasonable attorney’s fee for preparation and trial of the cause in the district court. It answered zero for services by the appel-lee’s attorney at all levels of appeal.

The appellee’s attorney testified that a reasonable fee for services in the district court was $6,425.00, exactly the amount awarded by the jury. He testified that $2,500.00 was a reasonable fee for an appeal to the Court of Appeals, that $750.00 was a reasonable fee if application for writ of error were made, and that $2,500.00 was a reasonable fee for services in the Supreme Court if writ of error were granted. The expert testimony from the appellee’s attorney was uncontradicted, un-impeached, and internally consistent. It was subjected to only one page of cross-examination, which involved no questions concerning the reasonableness, necessity, or amounts of the attorney’s fees requested on appeal. The jury’s failure to award attorney’s fees on appeal at any level is against not only the great weight and preponderance of the evidence, but against all of the evidence, and it is manifestly unjust.

The remedy sought by the appellee is reversal of the judgment insofar as it awards nothing for attorney’s fees on appeal and a remand of only that portion of the cause for a new trial limited to that issue. See International Security Life Insurance Co. v. Finch, 496 S.W.2d 544, 547 (Tex.1973); Kosberg v. Brown, 601 S.W.2d 414, 418 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ).

We sustain the appellee’s cross-point number one.

The judgment is affirmed in all respects, except that the jury verdict in response to special issue thirteen (b), (c), and (d), is set aside. The issue of attorney’s fees on appeal as presented in special issue thirteen (b), (c), and (d) is hereby severed from the remainder of the cause of action and remanded for a new trial.

      . The findings that Barclay was an officer, director and shareholder are not attacked on appeal. The finding that De-Cra Corporation is a sham is attacked for insufficiency of evidence and no evidence. We do not decide the merits of the challenge to the sufficiency of the evidence proving that the corporation was a sham because we have not relied herein on that finding to uphold the appellant's personal liability.


source: Caselaw Access Project

author: DUNN, Justice.

license: Public Domain

text:
    Arthur P. DAVILA, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0421-CR.
    Court of Appeals of Texas, Houston (1 Dist.).
    Feb. 14, 1985.
    Ralph Behrens, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Timothy G. Taft, John Petruzzi, Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

DUNN, Justice.

The appellant was convicted by a jury of aggravated robbery. The jury assessed punishment at 40 years.

In his only ground of error, appellant contends that the trial court erred by permitting the enhancement allegation of the indictment to be read and proof offered thereon without first holding a hearing to determine that the prior conviction was valid and the evidence offered was admissible, citing Holcombe v. State, 424 S.W.2d 635 (Tex.Crim.App.1968). Although Holcombe appears to support appellant, we find it is inapplicable. Holcombe was tried in a one-stage, non-bifurcated trial prior to the effective date of the 1965 enactment of the Code of Criminal Procedure, which requires a bifurcated hearing. Tex.Code Crim.P. Ann. art. 36.01 (Vernon 1981). In Hol-combe, not only was the indictment, inelud-ing the enhancement allegation, read to the jury at the commencement of the trial, but proof of the enhancement allegation was also heard along with proof of guilt. Hol-combe’s conviction was reversed by the Court of Criminal Appeals because the evidence was held insufficient to sustain the enhancement allegation. After finding reversible error, the Court observed that, upon re-trial of the case under the newly enacted bifurcated procedure, such portions of the indictment should not:

be read or proof offered in support thereof unless and until it is first determined by the court that the prior convictions are valid and admissible in evidence.

Holcombe, 424 S.W.2d at 637.

The observation in Holcombe was no more than dicta. We note that, after making the observation, the Court cited Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). In Burgett a pre-trial motion to quash the enhancement allegations of an indictment was filed, but apparently not ruled on. At Burgett’s unitary trial the entire indictment, including the enhancement allegations, was read to the jury. During the trial, two judgments of Burgett’s prior conviction, which indicated that he had been tried without counsel, and in violation of his federal constitutional rights, were admitted in evidence over objection. Moreover, a prior Texas conviction was already in evidence when the parties became aware that it was void, and it was stricken from the record. Later, the Court instructed the jury not to consider any evidence of Burgett’s prior convictions. In the face of these facts, the United States Supreme Court held:

The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799] is inherently prejudicial and we are unable to say the instruction to disregard it made the constitutional error “harmless beyond a reasonable doubt” within the meaning of Chapman v. State of California [386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705],...

Burgett, 389 U.S. at 115, 88 S.Ct. at 262 (citation and footnote omitted).

State procedures have greatly changed since Holcombe and Burgett were decided. Texas criminal trials are now bifurcated and the jury does not hear evidence relating to punishment until after it finds the accused guilty. Tex.Code Crim.P. Ann. art. 36.01 (Vernon 1981). In Hill v. State, 633 S.W.2d 520, 523 (Tex.Crim.App. 1981) (op. on reh’g), it was held that:

[Fjailure to object at trial to the introduction of proof of an allegedly infirm prior conviction precludes a defendant from thereafter attacking a conviction that utilized the prior [infirm] conviction. If an objection is timely lodged on proper grounds, the trial court can finally determine, at trial, whether the prior conviction was permissibly obtained and whether it is admissible as evidence.

Id. at 525. However, Texas recognizes an exception to the contemporaneous objection rule expressed in Hill: where the prior conviction used for enhancement is based on a void indictment, the absence of a timely objection at trial does not waive error. Ex parte White, 659 S.W.2d 434 (Tex.Crim. App.1983), Duplechin v. State, 652 S.W.2d 957 (Tex.Crim.App.1983). This exception is premised on the notion that the court rendering the judgment in the prior conviction never had jurisdiction over the defendant. Weaver v. McKaskle, 733 F.2d 1103 (5th Cir.1984). With this exception, Hill remains the rule in this state.

In the case at bar, the record clearly indicates through appellant’s own testimony, prior to the commencement of his trial, that he was aware of the consequences of the enhancement allegation in his indictment. He made no motion to quash the enhancement allegation prior to trial or pri- or to the punishment phase, neither did he object to the enhancement allegation being read to the jury at the commencement of the punishment hearing. His first objection came at the punishment stage of the trial, after the first witness was called and displayed a penitentiary packet. Then, the appellant’s only objection was that the certification of the cause number on the penitentiary packet by the clerk, 287,331, was at variance with the cause number as set out in the enhancement portion of the indictment, 287,333. It is apparent from the record that appellant’s objection to the introduction of the penitentiary packet was sustained because the two numbers differed, not because the prior conviction was void or even voidable.

Appellant argues that the jury was irreparably prejudiced at the punishment hearing by the witness’s statements that he had taken appellant’s fingerprints and by the witness’s exhibition of the penitentiary packet before the jury. The record reflects that the witness did no more than refer to the penitentiary packet when the court sustained appellant’s objection; there was no further testimony. The penitentiary packet was not linked to appellant or admitted in evidence, and appellant requested no further relief. Appellant’s procedural failure to request an instruction to disregard the papers not in evidence waived any complaint on appeal. DeRusse v. State, 579 S.W.2d 224, 232 (Tex.Crim. App.1979).

Because appellant made no motion to quash the enhancement paragraph of the indictment, the trial court was not required to hold a hearing outside the presence of the jury to determine the admissibility of the state’s evidence.

Appellant’s sole ground of error is overruled and the judgment of the trial court is affirmed.


author: HOYT, Justice.

text:
    Lewis Daniel TRIPLETT, Jr., AKA Robert Elvis Thomas, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0424-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 14, 1985.

      Allen Isbell, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., James C. Brough, Glenn Gotschall, Asst. Dist. At-tys., Houston, for appellee.
    Before HOYT, WARREN and DUGGAN, JJ.
   OPINION

HOYT, Justice.

The appellant was convicted by a jury of aggravated robbery and assessed punishment at 50 years confinement in the Department of Corrections.

The complainant, Pamela Paschal, first met the appellant at a Houston nightclub in September 17, 1983. At closing time, he asked her for a ride to his truck. While she was stopped at a red light, he reached over and put the car in park, took the keys out of the ignition, displayed a knife, and threatened to kill her. She then jumped out of the car, and he moved into the driver’s seat and drove off.

The complainant identified the appellant in a line-up on February 1, 1984, and at trial. Appellant now brings five grounds of error.

In the first ground of error, the appellant complains that the evidence is insufficient to prove that the knife is a deadly weapon. The following instruction on deadly weapon, which follows Tex.Penal Code Ann. sec. 1.07(a)(ll) (Vernon 1974), was given to the jury:

“Deadly weapon” means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

A knife is not a deadly weapon per se; however, consideration of the manner in which a knife is used or intended to be used, its size, shape, and sharpness, and its capacity to cause death or serious bodily injury may dictate a finding that a knife is a deadly weapon. Davidson v. State, 602 S.W.2d 272 (Tex.Crim.App.1980); Denham v. State, 574 S.W.2d 129 (Tex.Crim.App. 1978). In the absence of serious bodily injury, the jury must discern the manner of the knife’s use or its intended use, its capacity to produce death or serious bodily injury, as well as its size, shape, and sharpness in determining whether the knife is a deadly weapon. Batro v. State, 635 S.W.2d 156, 158 (Tex.App.—Houston [1st Dist.] 1982, no pet.).

In the case before us, the knife was not introduced into evidence however, and the complainant’s description of the knife was somewhat expositive and uncontradict-ed. She described the knife as a pocketknife with a four or five-inch shining blade with a point on the end. She testified that she was sitting in the front passenger seat, and the complainant was in the driver’s seat when the appellant held the knife up to her view. When the complainant did not get out of the car following appellant’s threat, he held the knife closer to her face as he repeated his threat to kill her. She testified that she feared for her life and exited the car, leaving her shoes and purse behind.

We conclude that when a knife, as described in this case, is exhibited in the manner described, there is sufficient evidence from which the jury could conclude beyond a reasonable doubt that the weapon was deadly “in the manner of its use or intended use.” Ground of error one is overruled.

Ground of error two alleges error because the trial court overruled appellant’s objection to the jury charge due to the trial judge’s failure to include an instruction on the lesser included offense of robbery.

The established rule is that trial courts will instruct the jury on the lesser included offense when there is some evidence that raises an issue of the lesser included offense and there is testimony that if the defendant is guilty, he is guilty only, of the lesser offense. Hunter v. State, 647 S.W.2d 657, 658 (Tex.Crim.App. 1983).

In the case at hand, the complainant’s testimony describing the knife, the proximity of the parties, and the location of the knife were not challenged on cross-examination. Although the knife was not introduced into evidence, the description was expositive and uncontradicted. The appellant points out in his brief that the jury could have had a reasonable doubt whether he used or exhibited a deadly weapon. Any reasonable doubt that a jury could have had must arise from the evidence or lack of evidence concerning whether the knife met the deadly weapon test. Where the appellant offers no evidence and a review of the record reveals no conflicting evidence concerning the deadly weapon, an instruction on the lesser offense of robbery is not required, especially when the deadly weapon test is otherwise met. See Parr v. State, 658 S.W.2d 620, 622 (Tex.Crim.App.1983); Stevens v. State, 636 S.W.2d 857, 860 (Tex.App.—Waco 1982, pet. ref’d).

Ground of error two is overruled.

The final three grounds center on an order deferring adjudication, which was admitted into evidence at the punishment phase. On January 19, 1983, the appellant was placed on probation for six years by an order of probation out of Cherokee County, without an adjudication of guilt. The admission of the deferred adjudication order was objected to in this case based on the premise that it was not an adjudication of guilt. Appellant urges that the deferred adjudication order is not a “prior criminal record” within the meaning of Tex.Code Crim.P.Ann. art. 37.07, sec. 3(a) (Vernon 1981), and therefore, its admission constitutes reversible error.

Article 37.07, sec. 3(a) provides as follows:

Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty
(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

The appellant relies on the holding in Baehr v. State, 615 S.W.2d 713, 716 (Tex. Crim.App.1981), which holds that the deferred adjudication order is not a prior criminal record within the meaning of art. 37.07, sec. 3(a). The rationale is that a prior criminal record is a finding of guilt, contrary to the informal administrative procedure of rendering deferred adjudication where no such finding is made. Id. at 716.

The State, however, contends that the deferred adjudication order is admissible under Tex.Code Crim.P.Ann. art. 42.12, sec. 3d(c) (Vernon 1979). This section provides as follows:

Sec. 3d(c) On expiration of a probationary period imposed under Subsection (а) of this section, if the court has not proceeded to adjudication of guilt, the court shall dismiss the proceedings against the defendant and discharge him. The court may dismiss the proceedings and discharge the defendant prior to the expiration of the term of probation if in its opinion the best interest of society and the defendant will be served. A dismissal and discharge under this section may not be deemed a conviction for the purposes of disqualifications or disabilities imposed by law for conviction of an offense, except that upon conviction of a subsequent offense, the fact that the defendant had previously received probation shall be admissible before the court or jury to be considered on the issue of penalty.

The State urges us to follow the decision in Brown v. State, 668 S.W.2d 470 (Tex.App.—Dallas 1984, pet. granted), now pending before the Court of Criminal Appeals. In Brown, the Court held that Baehr, 615 S.W.2d at 713, was not controlling because it did not consider the effect of art. 42.12, sec. 3d(c) upon the admissibility of a deferred adjudication order. Brown holds that on the issue of penalty, a deferred adjudication order is admissible under art. 42.12, sec. 3d(c). We respectfully disagree. The Legislature has restricted the meaning of “prior criminal record” to three findings of guilt beyond a reasonable doubt: final conviction, suspended sentences, and judgments granting probation. Hernandez v. State, 599 S.W.2d 614, 615 (Tex.Crim.App.1980). Probation arising from a deferred adjudication order does not fall under any of these categories. The Legislature created several forms of felony probation under art. 42.12: “Regular” probation, sec. 3a and c; deferred adjudication, sec. 3d(a); “shock probation,” sec. 3e(a); and alternate probationary sentencing, sec. 6c(a). Further, it defined “probation” to mean the release of a convicted defendant by a court under conditions imposed by the court for a specified period during which the imposition of sentence is suspended. Art. 42.12, sec. 2b. Deferred adjudication means that a defendant has been indicted of an offense, rather than convicted. Green v. State, 663 S.W.2d 145 (Tex. App.— Houston [1st Dist.] 1983, pet. ref’d). It logically follows that when the Legislature used the term “probation” in art. 42.-12, sec. 3d(c), it was referring to probation as defined in sec. 2b; probation granted following a conviction, not deferred adjudication.

We are concerned, however, with whether the improper admission of the deferred adjudication order constituted reversible error. We find that it did not, since the appellant allowed the probation officer to testify concerning the essential contents of the order without objection.

Grounds of error four and five allege error in the admission of the deferred adjudication order, because it was uncertified and the probation officer’s testimony in proving up the order, violated the “best evidence” rule.

We hold that, even if the deferred adjudication order had been certified, it would not have been admissible because it was not a final conviction within the meaning of art. 37.07 sec. 3(a) or art. 42.12 sec. 3d(c). We further hold that the objection made by the appellant related to the document and does not reach the testimony elicited from the probation officer. An objection must not only identify what is objected to, but must be specific and set forth grounds for the objection. Evans v. State, 480 S.W.2d 387 (Tex.Crim.App.1972); Hinkle v. State, 442 S.W.2d 728 (Tex.Crim.App. 1969). The testimony was properly admitted in the absence of a timely objection, therefore, any error in admitting the deferred adjudication order was harmless.

Grounds of error three, four, and five are overruled.

The judgment of the trial court is affirmed.


author: DICKENSON, Justice.

text:
    TDC ENGINEERING, INC., Appellant, v. Gene DUNLAP, Appellee.
    No. 11-84-167-CV.
    Court of Appeals of Texas, Eastland.
    Feb. 14, 1985.
    Rehearing Denied March 14, 1985.

      James C. Gordon, McMahon, Smart, Su-rovik, Suttle, Buhrmann & Cobb, Abilene, for appellant.
    Lance Hall, Sweetwater, for appellee.
   DICKENSON, Justice.

The landowner, Gene Dunlap, sued the operator of an oil and gas lease, TDC Engineering, Inc., for “an unnecessary use” of the surface estate (injecting salt water in an unproductive oil well on land owned by Dunlap). Following a trial by jury, judgment was rendered that Dunlap recover $57,150 for diminution of the market value of his 1143.5-acre tract of land; $12,000 for occupancy of the 40-acre tract upon which the salt water injection well was located; and $60,000 as exemplary damages. TDC Engineering, Inc. appeals. We reverse and render.

The verdict of the jury can be summarized as set forth below:

1. “We do” find that TDC Engineering, Inc. made an unnecessary use of the entire surface estate belonging to Gene Dunlap on or about February 2, 1983, and thereafter, in its operation of injecting the salt water in the well on land owned by Gene Dunlap.
2. “We do” find that such unnecessary use was a proximate cause of the loss of value to the 1143.5 acres of land belonging to Gene Dunlap.
3. “$57,150.00” is the difference in market value as a result of the unnecessary use of that land.
4. “We do” find that TDC Engineering, Inc. has entered upon Gene Dunlap’s 40 acre tract of land which surrounds the salt water injection well without consent oí legal right.
5. “We do” find that this entry was a proximate cause of injury.
6. “$12,000” would compensate Gene Dunlap for the injury caused by the entry of TDC Engineering, Inc. on this 40-acre tract of land.
7. “We do” find that this entry constituted gross indifference to the rights of Gene Dunlap.
8. “$60,000” should be awarded against TDC Engineering, Inc. as exemplary damages.
9. “None” is the reasonable value of improvements made by TDC Engineering, Inc. on the 40-acre tract.
10. “No,” the casing and other equipment in the salt water disposal well cannot be removed without permanent damage to the property.

Appellant has briefed 32 points of error, complaining of: (1) the trial court’s overruling of its motion for instructed verdict; (2) the trial court’s overruling of its motion for judgment non obstante veredicto; (3). the issues which were submitted to the jury; (4) the defensive issues and instructions which were requested and refused; and (5) the trial court’s overruling of objections to the issues and instructions which were submitted to the jury. We sustain the second point and the thirty-second points of error.

In 1978, Gene Dunlap purchased all of the surface plus an undivided mineral interest in this 1143.5-acre tract of land from Billy Bowden. Bowden’s rights in this property were subject to an oil and gas lease owned by Taliaferro. The James Petroleum Trust owns an undivided one-sixteenth mineral interest in a 700-acre tract of land. This interest covers the portion of Dunlap’s property where the four oil and gas wells are located, and it also covers the 40-acre tract where the salt water disposal well is located. Taliaferro owns the leasehold estate under the James Petroleum Trust in addition to his rights under the Bowden Lease. The other undivided mineral interests are leased to Maguire Oil Company and operated by TDC Engineering, Inc., but there are separate leases for the various tracts of land.

The Bowden lease contains a “Pugh Clause” which provides that:

Any provisions above to the contrary notwithstanding, this lease shall ipso fac-to terminate three (3) years after the date of the expiration of the primary term save as to the number of acres allocated by the Railroad Commission of Texas for each well from which oil and gas in paying quantities is being produced and sold; however, as to all wells from which oil and/or gas is being produced and sold in paying quantities said lease shall ipso facto terminate as to all formations below the then producing formations.

Since the lease was effective August 27, 1976', for a three year primary term, the Pugh Clause became effective on August 27, 1982. At that time the Bowden lease was continued in effect as to 40 acres around each producing well. It terminated as to the 40-acre tract upon which the salt water injection well is located. Dunlap advised TDC Engineering, Inc. and Taliaferro that they did not have the right to inject salt water in the nonproductive well on this 40-acre tract without his consent and that they should either transport the salt water off his property for disposal or make an agreement with him and pay him for the right to dispose of the salt water by injection into the well on his property. TDC Engineering, Inc. and Taliaferro maintained the right to dispose of the salt water by injection into the well on Dunlap’s property without his permission, and Dunlap filed this lawsuit.

We agree with Dunlap that the Bowden lease did not give the lessee or his operator the right to inject salt water into the nonproductive well. We also agree with Dunlap that, since the Maguire Oil Company leases cover different tracts of land, they do not give the lessee or its operator the right to dispose of salt water produced from some of the leases on land covered by a different lease.

We do not, however, agree with Dunlap as to the operator’s claims under the oil and gas lease from the James Petroleum Trust, and we hold that the oil and gas lease from the James Petroleum Trust gave the lessee, Taliaferro, and his operator, TDC Engineering, Inc., the right to dispose of the salt water in the injection well involved in this lawsuit. It is rare that mineral rights to an undivided one-sixteenth interest would have this result, but it must logically follow from the application of well established legal principles.

Brown v. Lundell, 162 Tex. 84, 344 S.W.2d 863 at 865 (1961), affirms the rule that the operator of an oil and gas lease “has the right to use so much of the land, both surface and subsurface, as is reasonably necessary to comply with the terms of the lease contract.” (Emphasis added) Brown states, 344 S.W.2d at 867:

It was necessarily incident to production operations here that the salt water be separated from the oil and that it be disposed of ....
The ultimate issue was whether (the operator of the oil and gas lease) was negligent in the way and manner in which he disposed of the salt water.

Sun Oil Company v. Whitaker, 483 S.W.2d 808 (Tex.1972), recognizes the rule that the mineral estate is the “dominant estate” and that the right to use so much of the premises as is “reasonably necessary” does not obligate the oil and gas operator to use alternative methods unless they “may be employed on the leased premises to accomplish the purposes.” 483 S.W.2d at 812. See also Ball v. Dillard, 602 S.W.2d 521 at 523 (Tex.1980), which notes that: “A grant of minerals would be worthless to a grantee if he could not enter upon the land for exploration and extraction of the minerals granted.”

Cox v. Davison, 397 S.W.2d 200 at 203 (Tex.1965), discussing the right of a tenant in common of an undivided mineral interest, such as the James Petroleum Trust and its lessee, to make such use of its property as it sees fit, said:

(T)he mineral estate is such that necessarily the rights of one cotenant must be interferred with if another cotenant is to be permitted to exercise those rights properly belonging to him.

Since TDC Engineering, Inc. was the operator for the lessee of the James Petroleum Trust lease, it had the right to produce the oil belonging to that undivided mineral interest’s owner and to make such reasonable use of the surface estate related to it as is necessary to produce the oil. The evidence conclusively establishes that the operator must dispose of the salt water (which is produced with the oil) in order to produce the oil and that there is no alternative method for disposing of the salt water on the leased premises covered by the oil and gas lease from the James Petroleum Trust. Consequently, the recovery for trespass cannot be allowed.

Dunlap failed to secure findings that the salt water injection well was not reasonably necessary. See Annotation, “What Constitutes Reasonably Necessary Use of the Surface of the Leasehold by a Mineral Owner, Lessee or Driller under an Oil and Gas Lease or Drilling Contract,” 53 A.L.R.3d 16-174 (1973). The finding of an “unnecessary use” is not sufficient in view of the objections to the charge and the tender of proper issues and instructions. The motion for judgment non obstante ve-redicto should have been granted.

The judgment of the trial court is reversed, and this Court renders judgment that Gene Dunlap take nothing and that TDC Engineering, Inc. recover its costs of suit.

      . Gene Dunlap died after the rendition of judgment in the trial court. Pursuant to TEX.R. CIV.P. 369a this Court will proceed to adjudicate the cause and render judgment “as if all the parties thereto were living.”

      . TDC Engineering, Inc. is a wholly owned subsidiary of Texas Drilling Company. Scott Tal-iaferro is President of both corporations. He also owns certain oil and gas leases which are involved in this lawsuit and which are being operated by TDC Engineering, Inc.

      . Point of Error Two: The trial court erred in overruling Defendant's Motion for Judgment Non Obstante Veredicto with respect to plaintiff’s cause of action in trepass.

      . Point of Error 32: The trial court erred in refusing to grant Defendant’s Motion for Judgment Non Obstante Veredicto with respect to plaintiff’s cause of action in trespass to try title.

      . Texaco, Inc, v. Faris, 413 S.W.2d 147 (Tex.Civ. App.— El Paso 1967, writ ref’d n.r.e.), is not in point because there was a lease in Faris which set forth the uses of the surface and specified the extent of such uses. Faris recognized that in the absence of such an express lease provision, the extent of use is said to be that which is "reasonably necessary.” Since Dunlap’s lease had terminated as to the 40-acre tract upon which the salt water injection well is located, those lease provisions are not applicable. The operator had the right in this case to make reasonable use of the surface to produce the oil belonging to the l/isth mineral interest belonging to the James Petroleum Trust.


author: CADENA, Chief Justice.

text:
    Juan MARTINEZ, et ux., Appellants, v. GENERAL MOTORS CORPORATION, Appellee.
    No. 04-82-00498-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 15, 1985.
    Rehearing Denied March 14, 1985.

      John D. Wennermark, San Antonio, for appellants.
    Thomas H. Crofts, Jr., Groce, Locke & Hebdon, San Antonio, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

CADENA, Chief Justice.

ON APPELLANTS’ MOTION FOR REHEARING

The appellants’ motion for rehearing is granted and their appeal is reinstated. Our prior opinion dismissing the appeal is withdrawn.

Plaintiffs, Juan Martinez and wife, Maria Martinez, appeal from an order dismissing their suit against defendant, General Motors Corporation because of plaintiffs’ failure to answer interrogatories submitted by defendant. We reverse and remand the cause for further proceedings.

Defendant obtained a setting on its motion to dismiss on Wednesday, February 17, at which time the hearing on the motion was set for 9:00 A.M. the following Monday, Fébruary 22. Notice of the hearing was delivered to the office of plaintiffs’ attorney on Friday, February 19. Neither plaintiffs nor their attorney appeared in court on Monday, February 22, and the trial court entered the order dismissing plaintiffs’ suit.

Plaintiffs assert that the order of dismissal cannot stand because they were given insufficient notice of the February 22 hearing.

Under Rule 21, TEX.R.CIV.P., the notice of the hearing on the motion, since the motion was not presented during a hearing or trial, was required to be served “not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court.”

According to Rule 4, TEX.R.CIV.P., in computing a period of time prescribed or allowed by the rules, “the day of the act, event or default after which the designated period of time begins to run is not to be included,” but “the last day of the period so computed is to be included,” .... The provision of the rule concerning situations where the last day is a Saturday, Sunday or legal holiday is not applicable here.

In the absence of a motion for new trial, Rule 356 requires that an appeal bond shall be filed within 30 days after the judgment is signed. In such a case, the application of the Rule 4 formula gives the appellant 30 full or entire days within which to file the bond. Thus, if the judgment is signed on March 1, a bond filed prior to midnight March 31 complies with the rule. This is true in every case in which the law requires that an act be performed.

It is apparent that the method for computing time prescribed by Rule 4 cannot realistically be applied in a case where the requirement is that an act or event occur a certain number of days before a known future date. In such cases, it seems that a majority of American courts which have considered the problem hold that in computing the time either the first or last day is excluded. If the first day is excluded, the last day is counted. If the last day is excluded, then the first day is counted. Annot: 98 A.L.R.2d 1331 (1964). In the case before us, if we exclude the date of the hearing and include the day of service, the resulting conclusion would be that the service took place on the third day before the hearing, but we would still be faced with the problem that adherence to such a formula would not give three full or entire days between the date of service and the date of hearing.

In a majority of the Texas cases which have considered the problem, both the first and last day have been excluded. In O’Connor v. Towns, 1 Tex. 107 (1846), the applicable statute required that service of process on defendant be made at least five days prior to the commencement of the terms of court. Service of process took place on a Wednesday, and the next term of court began on the following Monday. The Supreme Court, holding that the statute required that five full days intervene between the day of service and the commencement of the term, excluded both the days of service and the first day of the term, and then concluded that process had not been served “at least five days” before the commencement of the term.

In Pollard v. Snodgrass, 203 S.W.2d 641 (Tex.Civ.App.—Amarillo 1946, writ dism’d), the statute required that notice of an election be posted in each election precinct at least six days prior to the election. The notice of the election to be held on December 7 was posted on December 1. The Court said that the date of posting was only five days before the election. Such a conclusion can be reached only by excluding December 1, the date of posting, and December 7, the date of the election.

Other Texas cases reaching the same result are referred to in the annotation, supra, 98 A.L.R.2d at 1354, § 4(b).

The judgment of the trial court is reversed and the cause is remanded with instructions that it be reinstated on the docket of the trial court.


author: REEVES, Justice.

text:
    DUDERSTADT SURVEYORS SUPPLY, INC., Appellant, v. ALAMO EXPRESS, INC., Appellee.
    No. 04-83-00297-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 15, 1985.
    Rehearing Denied March 12, 1985.

      David W. Rogers, San Antonio, for appellant.
    Charles M. Jefferson, San Antonio, for appellee.
    Before BUTTS, REEVES and TIJERI-NA, JJ.
   OPINION

REEVES, Justice.

This case concerns a fraudulent cashier's check received by a common carrier in payment of a C.O.D. charge. The trial court absolved the carrier from liability and the shipper brings this appeal.

The uncontroverted facts are Duderstadt Surveyors Supply, Inc. (Duderstadt) shipped collect on delivery (C.O.D.) by Alamo Express, Inc. (Alamo), survey instruments to Petróleos Mexicanos (Pemex) in care of its agent, Raul Buenrostro. These goods were shipped by Alamo to its terminal in McAllen, Texas. A man purporting to be Raul Buenrostro picked up the goods consigned to Pemex and tendered, in payment, a purported cashier’s check drawn on Union National Bank of Laredo. Upon presentment for a collection, the Union National Bank of Laredo determined it was a forged instrument and refused payment.

Demand for payment was made upon Alamo and, upon its refusal, suit was instituted. The trial court found that Alamo did not breach any duty which it owed to Duderstadt and entered judgment accordingly.

The legal question in this appeal is who, in a C.O.D. shipment, bears the risk of loss for a forged bank cashier’s check, the shipper or the carrier.

Duderstadt brings forth ten grounds of error which can be summarized as follows:

(1) The trial court erroneously found that Alamo’s responsibility in collecting the C.O.D. charge was that of an agent and its duty was limited to the exercise of due care and diligence in forwarding the cashier’s check.

(2) The trial court erroneously impliedly found that Duderstadt ratified any wrongful act and waived or was estopped from asserting any rights against Alamo by accepting the alleged cashier’s check.

(3) There was legally and factually insufficient evidence to establish any of the elements of the aforementioned implied findings of the trial court.

(4) Failure of the trial court to file findings of fact and conclusions of law after timely request.

(5)Refusal to grant a new trial in the interest of justice.

Duderstadt and Alamo entered into a written contract styled, “Uniform Straight Bill of Lading.” The contract in part states:

This shipment is tendered and received subject to the terms and conditions of Carrier’s Uniform Straight Bill of Lading as filed with the Interstate Commerce Commission.

This bill of lading was introduced into evidence as well as the following rules of the National Motor Freight Classification 100-H: a form styled Uniform Straight Bill of Lading, Item 128 and Item 430, collect on delivery (C.O.D.) shipments. Item 430 provides, in pertinent part:

Sec. 9. Only the following forms of payment will be accepted in payment of COD amounts;
(1) cash ...;
(2) bank cashier’s check;
(3) bank certified check;
(4) money order; ....
All checks and money orders shall be made payable to the consignor. The carrier will accept checks and money orders only as the agent of the consignor and the carriers’ [sic] responsibility is limited to the exercise of due care and diligence in forwarding such checks and money orders to consignor.

Duderstadt, while this case was pending on appeal, filed a motion in this court to take judicial notice of Tariff 100-C, Item 170 and Item 180, Railroad Commission of Texas. The motion was uncontested and these instruments are now before this court for our perusal. It is uncontroverted that these tariff rules were in effect at the time of the contract of the parties. Tariff 100-C, Item 170, provides, in part:

COLLECT ON DELIVERY (COD) SHIPMENTS RULES (Provisions in addition to NMFC Item 430)
The following Rules and Regulations will also apply with respect to the transportation, handling and collection of COD shipments by all intrastate common carrier motor carriers:
1.
Every common carrier motor carrier transporting for hire intrastate commerce under a certificate issued by the Railroad Commission of Texas shall....
2.
(c) All collections for COD shipments by a delivering carrier shall be at the risk of the delivering carrier.

Item 180 is a list of the common carrier motor carriers who filed with the Motor Transportation Division of the Railroad Commission of Texas the proper C.O.D. bond called for by the appropriate rule. Among those listed is Alamo Express, Inc.

The state of the appellate record, therefore, is one where we have before us evidence, not available to the trial court, which mandates a different and more accountable standard of conduct of the carrier than that introduced and considered by the trial court. The contractual standard of conduct presented to the trial court in Item 430, section 9, of the National Motor Freight Classification 100-H is for the carrier to exercise due care while Item 170, section 2(c), of the Railroad Commission provides that collections of the delivering carrier shall be at the risk of the carrier.

A reading of the exhibits reveals the Interstate Commerce Commission’s Uniform Straight Bill of Lading and Item 430 were made subject and inferior to Railroad Commission Item 170. The suggested form for the Interstate Commerce Uniform Straight Bill of Lading states that items would be “received, subject to the classification and tariffs in effect on the date of the issue of this Bill of Lading,” and Railroad Commission Item 170 provides that its C.O.D. shipment rules are in addition to the National Motor Freight Classification Item 430.

Pursuant to Rule 201 of the Texas Rules of Evidence, Tariff 100-C, Item 170 and Item 180, Railroad Commission of Texas, is properly before this court, but whether it can be considered by this court in its determination of this case is another matter.

Appellate courts are reluctant to take judicial notice of Commission’s actions when the trial court was not afforded the opportunity to examine and take into consideration said actions. Sparkman v. Maxwell, 519 S.W.2d 852, 855 (Tex.1975); Continental Oil Co. v. Simpson, 604 S.W.2d 530, 535 (Tex.Civ.App.— Amarillo 1980, writ ref’d n.r.e.); Myers v. Cliff Hyde Flying Service, Inc., 325 S.W.2d 841, 846 (Tex.Civ. App.—Houston 1959, no writ).

The standard of care required of the carrier as set forth in Item 170, section 2(c), was not pled or proven in the trial court. It is well settled Texas law that an allegation not contained in the pleadings nor otherwise raised or proven in the trial court cannot be raised for the first time on appeal. State of California Department of Mental Hygiene v. Bank of Southwest National Association, 163 Tex. 314, 354 S.W. 576, 581 (1962). Tariff 100-C, Item 170 and Item 180, Railroad Commission of Texas, will not be considered in determining the merit of Duderstadt’s appeal.

Nor can we remand this case in the “interest of justice” as the trial court has entered a correct judgment on the record before it. An errorless judgment of a trial court cannot be reversed in the interest of justice. City of Houston v. Blackbird, 394 S.W.2d 159, 165 (Tex.1965); Davis v. Davis, 141 Tex. 613, 175 S.W.2d 226, 230 (1943); Calvert, In the Interest of Justice, 4 ST. MARY’S L.J. 291 (1972).

We will now consider the evidence presented to the trial court and the law applicable thereto. The bill of lading was prepared by Alamo and if it is subject to two constructions, it will be construed against Alamo. Amory Manufacturing Co. v. Gulf, C. & S.F. Railway Co., 89 Tex. 419, 37 S.W. 856, 857 (1896); Gulf, C. & S.F. Railway Co. v. Hines, 250 S.W. 1013, 1016 (Tex.Comm’n App.1923, opinion adopted).

Alamo’s responsibility in its contract with Duderstadt was twofold; one as a bailee to transport the goods and the other as the consignor’s agent to collect the price from the consignee. There is no common law duty to act as a collection agent and the C.O.D. obligation is a special service which is not within the scope of the carrier’s public services. National Van Dines, Inc. v. Rich Plan Corp., 385 F.2d 800, 802 (5th Cir.1967).

Pursuant to Item 430 of the National Motor Freight Classification 100-H, Alamo’s obligation in accepting the money order as the agent of Duderstadt was: “Limited to the exercise of due care and diligence in forwarding such ... money order” to Duderstadt.

RESTATEMENT (SECOND) OF AGENCY, § 426 (1958) provides:

Unless otherwise agreed, an agent employed to collect from others goods or money due the principal has the duty of using reasonable care and skill in making such collections in accordance with the directions of the principal.

When the agent acts within the scope of the agent’s authority and follows the instruction of the principal, the agent will not be liable for a loss of the principal as long as the agent has acted with due care, diligence and loyalty to the principal. See Ladonia Dry Goods Co. v. Conyers, 58 S.W. 967, 968 (Tex.Civ.App.1900, no writ); Texas Loan Agency v. Swayne, 27 S.W. 183, 185 (Tex.Civ.App.1894, no writ). There is sufficient evidence for the trial court to find that Alamo exercised due care and diligence in forwarding the cashier’s check. The cashier’s cheek tendered and accepted by Alamo showed nothing on its face to question its authenticity. Both Du-derstadt and its bank handled the cashier’s check and accepted the check as being genuine. Augustine Pena, an employee of appellant, inspected the check and testified that it appeared to him to be a normal and valid cashier’s check. Alan Lentz, an officer of Alamo, testified that there was nothing about the check which would lead him to suspect its authenticity. Wilmer Duder-stadt, the president of the appellant, testified that he saw the check and deposited it in the Brooks Field National Bank.

Duderstadt has cited Joseph Mogul, Inc. v. C. Lewis Lavine, Inc., 247 N.Y. 20, 159 N.E. 708 (1928) as authority that a carrier is responsible for the consequences of accepting a forged check. In Mogul, the defendant failed to accept cash but accepted, instead, the consignee’s cheek to the order of the consignor. The court held:

The law is settled that, in the absence of agreement or custom to the contrary, an agent to collect may accept money, and nothing else.

159 N.E. 708 at 709. Alamo’s specific authority was to accept the cashier’s check and forward it to Duderstadt.

We are of the opinion that there is more than adequate evidence to support the holding of the trial court that Alamo acted with reasonable care and diligence.

Duderstadt asserts error due to the failure of the trial court to make findings of fact and conclusions of law as called for by Rule 296 of the Texas Rules of Civil Procedure. The record shows that Duder-stadt requested findings of facts and conclusions of law, and that both Alamo and Duderstadt duly filed proposed findings of fact and conclusions of law. The trial court acknowledged receipt of Alamo’s findings but there is no order in the record showing their approval. Laboring under the misunderstanding that Alamo’s findings of fact and conclusions of law had been approved, Duderstadt filed a motion for additional findings of fact and conclusions of law. A hearing was held on the motion and some of the findings were granted while others denied. It is apparent from this action that the trial court, Alamo and Duderstadt considered Alamo’s findings of fact and conclusions of law approved by the court.

The purpose of findings of fact and conclusions of law is to narrow the area of dispute so that appellant can limit its brief to the legal points of error raised by the court’s findings. The failure of the trial court to file findings of fact and conclusions of law does not call for a reversal if the record before the appellate court shows that the complaining party has suffered no injury. Star Corp. v. Wolfe, 463 S.W.2d 292, 293 (Tex.Civ.App.—Houston [14th Dist.] 1971,. writ ref’d n.r.e.). We fail to see how Duderstadt has been injured. Du-derstadt was permitted to file, subsequent to the filing of appellee’s brief, a supplemental brief in which he added three points of error. In addition, Duderstadt was permitted to file a reply brief and a post-submission brief. The court has before it a complete statement of facts. This point of error is overruled.

In view of our disposition of this case it is unnecessary to pass on appellant’s other points of error.

We affirm the judgment of the trial court.

      . Texas Rules of Evidence, Rule 201, Judicial Notice of Adjudicative Facts.
      (a) Scope of Rule. This rule governs only judicial notice of adjudicative facts
      ***** *
      (d)When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
      (e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, request may be made after judicial notice has been taken.
      (f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.


author: POWERS, Justice.

text:
    Charles BEECHEM, Appellant, v. C.M. PIPPIN, Individually and Sani-Agri, Inc., Appellees.
    No. 14248.
    Court of Appeals of Texas, Austin.
    Feb. 20, 1985.

      Randall C. Simmon, Cuba, Simmon & Mayfield, Temple, for appellant.
    Wesley N. Harris, Kelly, Appleman, Hart & Hallman, Fort Worth, for appellees.
    Before POWERS, KEITH and GAM-MAGE, JJ.

       Keith, retired, Justice, Ninth Court of Appeals, sitting by assignment. See Art. 1812, as amended.

   POWERS, Justice.

Appellant Charles Beechem appeals from a trial court order dismissing, for want of jurisdiction, his suit against appellees C.M. Pippin and Sani-Agri, Inc. We will reverse the order and remand the cause for further proceedings.

The operative facts are not disputed. Beechem is a resident of Texas; Pippin and Sani-Agri are residents of Georgia. Bee-chem, as part of his business, occasionally leases or sells “Terragator” sludge applicators, sometimes advertising in a nationally-circulated magazine devoted to waste-water treatment. Some of the rental business he obtains is attributable to knowledge passed on to potential customers by word of mouth.

Beechem testified that he entered into a lease contract with appellees as the result of two telephone calls by Pippin to Bee-chem. The agreement was later reduced to writing. Payments were made by mail to Beechem’s place of business, and appellees arranged for an independent carrier to haul the machine to and from its location in Bell County. Appellees also had their insurance agent contact Beechem in Texas to arrange for insurance on the equipment. A dispute arose and appellant sued appel-lees in the district court of Bell County, Texas. Appellees moved for dismissal for want of in personam jurisdiction. The trial court granted their motion.

The trial court filed findings of fact and conclusions of law. Findings of fact number three and four hold that neither Pippin nor Sani-Agri “purposefully did any act or consummated any transaction in the State of Texas from which a cause of action pleaded by Plaintiff arose.” Beechem contends these findings are against the great weight and preponderance of the evidence, and that the trial court erred as a matter of law in deciding that it had no jurisdiction over appellees. We agree. However, the impression weighs heavily on us that the ablest judge, reviewing the somewhat confused state of the law concerning the exercise of in personam jurisdiction over nonresident defendants, might come to the same conclusion as the able trial judge here. We turn to a discussion of the relevant holdings in order to assemble the proper principle as best we may.

THE TEXAS “LONG-ARM” STATUTE

It is by now firmly established that the Texas Long-Arm Statute, Tex.Rev.Civ. Stat.Ann. art. 2031b (Supp.1985), “reaches as far as the federal constitutional requirements of due process will permit,” at least insofar as acts which may constitute “doing business” are concerned. U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977); Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 491 (5th Cir.1974); Jetco Electronic Indus., Inc. v. Gardiner, 473 F.2d 1228, 1234 (5th Cir.1973); Reich v. Signal Oil & Gas Co., 409 F.Supp. 846, 849 (S.D.Tex.1974), aff’d without opinion, 530 F.2d 974 (5th Cir.1976); Reul v. Sahara Hotel, 372 F.Supp. 995, 997 (S.D.Tex.1974); N.K. Parrish, Inc. v. Schrimscher, 516 S.W.2d 956, 958 (Tex.Civ.App.1974, no writ). See also Hall v. Helicopteros Nacionales de Colombia, 638 S.W.2d 870 (Tex.1982), rev’d on other grounds, — U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (Í984).

Hall would also seem to indicate that a “nexus” between the contacts and the cause of action is not an absolute requirement. In that case the Supreme Court of Texas stated that a relationship between the defendant’s contacts with the State and the cause of action “is unnecessary when the nonresident defendants [sic] presence in the forum through numerous contacts is of such nature ... so as to satisfy the demands of the ultimate test of due process.” However, we need not reach that issue because of our holding below that the cause pleaded here did arise from the contacts of appellees with the State.

We therefore are not as concerned, perhaps surprisingly, with the literal wording of the long-arm statute as we are with the pertinent judicial interpretations of due process. Siskind v. Villa Foundation For Educ., Inc., 642 S.W.2d 434, at 436 (Tex. 1982). See also Mowry, The Texas Long-Arm Statute, Article 2031b: A New Process is Due, 30 Sw.L.J. 747, at 755 (1976). We are thus spared, in the words of the Texas Supreme Court, the task of engaging “in technical and abstruse attempts to consistently define ‘doing business.’ ” U-Anchor Advertising, Inc. v. Burt, supra, at 762. Henceforth, we need only engage in such attempts consistently to define “due process” as it relates to the exercise of in personam jurisdiction over nonresident defendants.

THE LIMITS OF DUE PROCESS SET BY JUDICIAL DECISIONS

"Traditional fairness” is the overriding consideration in determining when the exercise of in personam jurisdiction over a nonresident defendant violates the constitutional guaranty of due process of law. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940). This rather elusive and generalized standard is not very helpful, and courts have devised the somewhat more concrete “minimum contacts” test. Id.

A measurement of the quality and quantity of contacts is helpful as an indication of the extent to which a party’s activities have had intrastate consequences, Calder v. Jones, — U.S. -, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and the degree to which a party has availed itself of the benefits and protections of the forum state. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). Multiple contacts with the state increase the likelihood that a litigant could foresee the possibility of one day having to defend his conduct there. Worldwide Volkswagen Corp v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Moreover, the quantity and quality of contacts are indicators of the degree to which citizens of that state were put at risk by defendant’s actions. There is a point at which the presence of all or a combination of these factors makes it “fair” to hold a person answerable in the courts of the state with which he has had these minimum contacts. Put another way, multiple state contacts at some point create a regulatory interest on the part of the state as to activities that touch and concern it. Brilmayer, How Contacts Count: Due Process Limitations on State Court Jurisdiction, 1980 S.Ct.Rev. 77, 87.

These factors are obviously relevant even when the subject of the litigation is unrelated to the contacts. The Supreme Court of the United States has reserved the question of the nature and number of contacts necessary to sustain in personam jurisdiction when the suit has arisen from or is related to the contacts. Helicopteros Nacionales de Colombia, S.A. v. Hall, — U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). It admittedly is difficult to decide when a cause of action “arises from” or is related to the contacts with the State, not unlike the problems of actual and proximate causation in the law of torts. Moreover, it is difficult to define precisely what is meant by a “contact” with a state. Nevertheless, we believe there is a more compelling case to be made for the exercise of in personam jurisdiction in those instances where a relationship exists between the contacts with the forum state and the cause of action brought in the courts of that state. Even in these circumstances, however, there must be some minimal level of contacts before in personam jurisdiction is asserted. U-Anchor Advertising, Inc. v. Burt, supra.

Once it is decided that the defendant’s contacts with the forum state make it “fair” to exercise jurisdiction over him there are apparently other considerations which bear on whether suit should be maintained there or in some other state having jurisdiction over the parties. With respect to certain precedents seemingly out of harmony with current doctrine, it has been suggested as a rationalizing principle that the relative convenience of the parties should govern the choice of forum in certain cases, von Mehren & Trautman, Jurisdiction to Adjudicate: A Suggested Analysis, 79 Harv.L.Rev. 1136, 1167-1169 (1966). See also Worldwide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 292, 100 S.Ct. at 564. By convenience we mean the relative burden on each party of defending a suit in a foreign forum. It might be said to encompass as well certain litiga-tional considerations, such as the presence of evidence and witnesses in a State, and the presence of assets that might need protection from concealment and dissipation. von Mehren & Trautman, supra, at 1141, 1167. All of these considerations are germane to a determination of which is the most convenient state in which to try a suit.

However, convenience to litigate should not, we think, be confused with jurisdiction to do so. Convenience alone cannot confer jurisdiction on a court in a forum with which a plaintiff has no contacts, Hanson v. Denckla, supra, 357 U.S. at 254, 78 S.Ct. at 1240, Worldwide Volkswagen Corp. v. Woodson, supra, 444 U.S. at 294, 100 S.Ct. at 565, and seems to be more in the nature of a venue question. (One may, after all) imagine situations where it might be more “convenient” to try a case in a forum with which neither party had previous contacts. Moreover, it seems very likely that cases could arise where it could be more inconvenient to try a suit on the far side of a state than to travel a few miles across the nearest border into an adjacent state for trial.)

While it is true that convenience alone does not confer jurisdiction, it is sometimes the case that severe inconvenience to a party will require that the cause be transferred to another court having jurisdiction of the parties. This is the gist of the rules governing change of venue, and the doctrine of forum non conveniens.

Dicta in some of the cases hint at a doctrine that convenience might in certain instances tip the due-process scales in favor of exercising in personam jurisdiction. See, e.g., Worldwide Volkswagen Corp. v. Woodson, supra, at 292, 100 S.Ct. at 564. Aside from what appears to us to be a confusion of the principles of venue and jurisdiction, we have reservations about the utility of such a standard. It is difficult enough to determine when the contacts of a party with a certain forum are of sufficient quality and quantity to give rise to in personam jurisdiction. We believe it unduly complicates matters to add to this problem the many-faceted considerations of convenience. We therefore decline to advance that doctrine here.

It has also been suggested that the strong interest of a state in providing a forum where its citizens can litigate their grievances, or the state’s special interest in regulating certain areas, such as insurance, might justify the exercise of in personam jurisdiction over nonresident defendants in certain cases. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957), explained in Hanson v. Denckla, supra, 357 U.S. at 252, 78 S.Ct. at 1239, and Worldwide Volkswagen Corp. v. Woodson, 444 U.S. supra, at 292, 100 S.Ct. at 564. We think there are serious problems with this formulation, as it confuses legislative wishes to assert jurisdiction with a constitutional right to do so. Brilmayer, supra, at 107.

One more word is appropriate with respect to our refusal to rest in personam jurisdiction on convenience, a state’s interest in providing forums for its citizens, or a state’s interest in regulating particular activities. These factors are extremely volatile. They change with technological and other innovations, including those that increase the mobility of citizens and the accessibility of information. See McGee v. International Life Ins. Co., supra, 355 U.S. at 222-223, 78 S.Ct. at 200-201. It seems desirable to us that constitutional requirements be traceable to more neutral principles, making law more predictable, less conclusory, and more prescriptive as rules by which to decide future cases. Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1 (1959); Akron v. Akron Center for Reprod. Health, 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983) (O’Connor, J. dissenting).

In summary, then, we will decide the jurisdictional issue by looking at whether appellees had contacts with this State, and the nature and number of those contacts. From these we will decide, where appropriate, (1) the degree to which appel-lees have availed themselves of the privileges, benefits and protections of this State, (2) the foreseeability, of intrastate effects traceable to appellees’ activities, and (3) the degree to which the citizens of this State were put at risk by appellees’ conduct. If in addition the cause of action arose from or was related to the contacts, the case for exercising jurisdiction will be much more compelling, not least because it seems “fairer” to hold one accountable for consequences traceable to his contacts with the State than for unrelated consequences.

THE FOREGOING PRINCIPLES APPLIED

We think it clear initially that the cause pleaded by Beechem arose out of the contacts of appellees with this State. Pippin solicited the contract by a telephone call to Beechem in Texas, Beechem signed the contract here, and payments were made by mail to Beeehem’s business address in Texas. It seems fair to say that appellees “purposefully [availed themselves] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Hanson v. Denckla, supra. Moreover, it was certainly foreseeable that the contacts might result in litigation, and that the citizens of this State were to some degree put at risk by appellees entering into and performing the contract or not performing it.

Appellees rely in their brief on U-Anchor Advertising, Inc. v. Burt, supra. U-Anchor was a breach-of-contract action against an Oklahoma resident. It resembles somewhat the present action. There, the only contact between the defendant and the State of Texas was the mailing of “six and perhaps seven monthly payments to U-Anchor at its office in Amarillo ...” Id. at 761. The contract was initiated, negotiated, and solicited in Oklahoma by a salesman sent from Texas to Oklahoma for that purpose. The Texas Supreme Court upheld an intermediate court determination that there were insufficient contacts to justify the exercise of in personam jurisdiction over the Oklahoma resident by Texas courts.

Appellant claims that U-Anchor is distinguishable from the present case. We agree. U-Anchor Advertising sent its salesman to Oklahoma and he initiated and negotiated the contract there; here, Pippin contacted Beechem in Texas by telephone seeking to lease the “Terragator.” Two such calls ultimately resulted in a lease contract. Beechem accepted over the phone, and the contract was later reduced to writing. In our opinion, the contract was solicited and negotiated in Texas, and performed in part in this State. (See also McGee v. International Life Ins. Co., supra, discussed below, where the mailing of a reinsurance contract from a nonresident insurance company to a resident was deemed to have been a solicitation in the forum state.) And while these may seem to be somewhat technical distinctions, we are counseled in U-Anchor that “[n]arrow factual distinctions will often suffice to swing the due process pendulum.” U-Anchor Advertising, Inc. v. Burt, supra, at 764. In U-Anchor, on the other hand, the forum in which suit was brought was not the place where the contract was negotiated or solicited.

Appellees had other contacts with Texas. Appellees mailed a payment to appellant’s Texas office, and otherwise corresponded with appellant by letter sent to Texas. Ap-pellees paid for the transfer of the equipment to and from its original Texas location. They caused their insurance agent to contact Beechem in Texas to arrange coverage for the machine.

We find in another decision additional support for our holding that appellees are subject to jurisdiction under art. 2031b. We refer to McGee v. International Life Ins. Co., supra. The petitioner in that case was a California resident who had purchased a life-insurance policy from an insurance company which later assigned the policy to the respondent insurance company, a Texas resident. Petitioner’s mother was the beneficiary under the policy. Petitioner negotiated a new contract with the respondent insurance company, whose only contact with petitioner’s home state was the mailing of the reinsurance policy to the insured. Indeed, the respondent had never solicited or done any insurance business in California. Upon the death of the insured, the beneficiary of the policy sued in the State of California to recover on the contract. She prevailed in that forum, and then initiated suit on the California judgment in the courts of Texas, which denied relief on the grounds that the California court lacked jurisdiction over the respondent. The United States Supreme Court reversed, holding that “[i]t is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with the state.” Id. 355 U.S. at 223, 78 S.Ct. at 201.

It is fair to say that the contacts in McGee were about as minimal as they could have been. But in that case, as here, the cause of action arose from or was related to the contacts, such as they were, partly because the reinsurance contract in McGee was solicited in California. Hanson v. Denckla, supra, 357 U.S. at 251, 78 S.Ct. at 1238. In this sense, McGee and the present case are consistent. In U-Anchor, the cause of action did not arise from the contacts of the appellee there with Texas, since the contract was not solicited or negotiated in Texas by the Oklahoma resident; on the contrary, it was the Texas resident who solicited and negotiated the contract in Oklahoma. The Supreme Court of Texas noted in this regard that “since the contract was solicited, negotiated, and consummated in Oklahoma, [appellee Burt] might reasonably expect its enforcement to be governed by Oklahoma law.” U-Anchor Advertising, Inc. v. Burt, supra, at 763; Hanson v. Denckla, supra. This too is consistent with McGee.

While it is undisputed that Bee-ehem entered into a contract with Pippin and Sani-Agri, the precise relationship between Pippin and Sani-Agri is not clear from the record or the pleadings. It is clear from the record that Pippin entered into the contract on behalf of Sani-Agri, and therefore the contacts of Pippin relative to the contract will be imputed to Sani-Agri. International Shoe Co. v. Washington, supra, 326 U.S. at 320, 66 S.Ct. at 160.

We do not imply by this opinion that merely contracting with a resident of this State will alone support jurisdiction in Texas courts to determine whether a breach has occurred. Estes Packing Co. v. Radish & Milman Beef Co., 530 S.W.2d 622 (Tex.Civ.App.1975, no writ), holding disapproved in U-Anchor Advertising, Inc. v. Burt, supra, at 764. In Estes, a Texas corporation sued a Massachusetts corporation to recover sums allegedly owing on a contract. A broker in Chicago orally ordered beef from the Texas corporation, which the broker sold before delivery to the Massachusetts corporation. The broker instructed the seller to ship the beef to Massachusetts. The Massachusetts corporation rejected part of the shipment. “Up to that time [the two corporations] had had no negotiations or communication with each other about the meat ” (emphasis supplied). Id. at 624. While the issue is, we think, a close one, it appears to us that the Massachusetts corporation did not purposefully avail itself of the privilege of conducting business in the State.

Even were we to hold insufficient the contacts of Sani-Agri with this State, alone and through its representative, there is another particularly significant reason why it seems “fair” or “substantially just” to assert jurisdiction over appellee Pippin, albeit the issue was not raised in the briefs submitted to this Court. Pippin’s attorney read into evidence at the hearing a deposition wherein Pippin admitted to owning both real and personal property in Texas and to having previously conducted sales in Texas. While the possession of property in the forum state does not alone necessarily constitute sufficient contact to justify the exercise of in personam jurisdiction, Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977), it undoubtedly is important, along with the other activities, to a determination of whether the defendant has so enjoyed the benefits, protections and privileges of the forum state as to render the exercise of jurisdiction over his person consistent with “fundamental fairness,” International Shoe Co. v. Washington, supra, even, we think, when those contacts are unrelated to the controversy.

We hold, therefore, that the contacts of appellee Pippin — those that were related to the cause as well as those that were unrelated — were quantitatively and qualitatively sufficient to make appellee answerable in the courts of Texas on the alleged breach of contract. Moreover, we hold that the contacts of Sani-Agri with Texas, through the acts of its representative, were sufficient to warrant the exercise of in personam jurisdiction over Sani-Agri as well. Accordingly, we reverse the order below and remand the cause for further proceedings not inconsistent with this opinion.

      . As Justice O’Connor stated in Akron: "[I]t is clear that the [Court's] approach violates the fundamental aspiration of judicial decision making through the application of neutral principles 'sufficiently absolute to give them roots throughout the community and continuity over significant periods of time ...’ Cox, The Role of the Supreme Court in American Government 114 (1976)"; "[I]t is apparent ... that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies ... according to the level of ... technology available when a particular challenge to state regulation occurs.” Id. at 2507. See also Dronenburg v. Zech, 741 F.2d 1388, at 1395-96 (D.C.Cir.1984).

      . Appellees, however, point out that Beechem advertised the availability of a terragator in a nationally-circulated waste-water treatment magazine (although not claiming to have acted on the basis of any such advertisement), and claims on this basis that the original solicitations were by Beechem through these ads. Bee-chem’s uncontradicted testimony was that he had at one time advertised similar equipment, though not the particular terragator leased to appellees, and that the nature of the business was such that the availability of these machines "kind of gets around.” It would seem, then, that the question of who actually initiated or solicited this agreement is closer here than in U-Anchor.


author: EVANS, Chief Justice.

text:
    Booker Talliferro CALDWELL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0506-CR.
    Court of Appeals of Texas, Houston (1 Dist.).
    Feb. 21, 1985.

      Gibbs Spiller, Jan G. Banker, Houston; for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Don Clemmer, Yeryl Brown, Harris County Asst. Dist. Attys., for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

EVANS, Chief Justice.

This is an appeal from a conviction for possession of a controlled substance, pentazocine. Prior to trial, the appellant filed a motion to suppress evidence obtained during an allegedly illegal search and seizure. The trial court denied the motion after a hearing. At trial, the appellant pleaded no contest as part of a plea bargain agreement and waived his right to a jury trial. The court accepted the plea bargain, found the appellant guilty, fined him $500, and probated his four-year prison term.

On November 29, 1983, a police officer on patrol in the Third Ward district of Houston stopped and arrested a man, later identified as Leroy Massey, on suspicion of possessing or selling a controlled substance. Once in custody, Massey was taken to a police substation, where he was questioned by a second police officer. As a result of questioning, Massey agreed to incriminate the appellant and signed a written statement, which was used as the basis of an affidavit for a search warrant covering the tailor shop where appellant worked. A search warrant was issued, and later that afternoon, the police searched the tailor shop. At the time of search, the appellant was standing behind the cash register. A quantity of Preludin was discovered behind the counter, and a sock containing 100 pentazocine tablets was found inside the pocket of a coat hanging on a wall.

We consider the appellant’s third ground of error to be dispositive of the appeal. The appellant challenges the sufficiency of the evidence to show his unlawful possession of a controlled substance in that ground.

To establish unlawful possession of a controlled substance, the state must prove that the accused exercised care, control, and management over the substance and also that he knew the substance was contraband. Oaks v. State, 642 S.W.2d 174, 176 (Tex.Crim.App.1982). In order to meet its burden of proof on this issue, the state must show something more than the accused’s presence at the location where the contraband was found, particularly where the accused did not have sole access to the premises. Id. at 177; Meyers v. State, 665 S.W.2d 590, 593 (Tex.App.—Corpus Christi 1984, pet. ref’d).

Thus, if a defendant is not in exclusive possession of the place where the contraband is found, it cannot be presumed that he had knowledge of and control over the substance. Under such circumstances, the state must show additional independent facts and circumstances that affirmatively link the defendant to the contraband and that indicate his knowledge and control. Rhyne v. State, 620 S.W.2d 599, 601 (Tex. Crim.App.1981); Wiersing v. State, 571 S.W.2d 188, 190 (Tex.Crim.App.1978). Relevant facts linking the defendant to the contraband may include proof that the defendant was under the influence of the controlled substance; that he was found in close proximity to the contraband; that the controlled substance was in plain view; that the defendant’s fingerprints were on the contraband; that the defendant made furtive gestures or attempted to flee; and that witnesses gave conflicting or incriminating statements regarding the defendant’s participation. See, e.g., Oaks v. State, 642 S.W.2d at 177-79; Rhyne v. State, 620 S.W.2d at 601; Wiersing v. State, 571 S.W.2d at 190.

In the case at bar, the evidence showed only that the appellant worked at a tailoring business, which was actually owned by a third party. There was no evidence that appellant was other than an employee at the shop, and it is undisputed that the premises were open to the public and that appellant did not have sole access to the premises.

Other than the fact that the appellant was found working behind the counter in the room where the controlled substance was found, there is no evidence tying him to the contraband. The investigating officer testified that he began his search behind the counter, where he found a paper bag containing ten Preludin pills inside a golf bag. The appellant was not charged with or convicted of possession of Preludin. The discovery of Preludin pills behind the counter did not furnish the required affirmative link between the appellant and the pentazocine found in the pocket of the coat hanging on a wall of the room.

The state offered no specific proof of the layout of the shop, nor did it make any showing that the appellant had exclusive control over any certain part of the store. Neither was there any proof as to how close the appellant was standing to the pentazocine at the time it was found. Indeed, the discovery of the pentazocine in the jacket hanging on the wall merely tended to corroborate the informant’s testimony, at the hearing on appellant’s motion to suppress, that he himself hid the pills in the tailor shop in the jacket hanging on the wall.

In summary, we find that the state’s evidence showed only that the appellant was in the same room where the pills were found, and it is undisputed that none of the pills were in plain view. The only indication of a link between the appellant and the pills was furnished by the informant in his sworn, written statement, given while under arrest for possession of a controlled substance. In that statement, the informant said that he had seen the appellant give several pentazocine pills to another man, then hide the rest behind the counter. At the hearing on appellant’s motion to suppress, the informant retracted his earlier statement and admitted that he had lied under oath. He stated that he believed he would not be prosecuted for possession if he incriminated the appellant. The informant further testified that the pills belonged to himself and to another man, and he described the occasion on which he had hidden the contraband in the jacket at the shop without the appellant’s knowledge. He explained that he had fabricated the story about the appellant for fear, in light of his own extensive criminal record, of being charged with possession himself.

The informant’s out of court affidavit, given to establish probable cause to search, is the sole link between the appellant and the pentazocine pills. It is hearsay, wholly without probative value, and will not be considered in determining the sufficiency of the evidence. Gutierrez v. State, 628 S.W.2d 57, 64 (Tex.Crim.App. 1980) (op. on reh’g); Ayers v. State, 570 S.W.2d 926, 928 (Tex.Crim.App.1978). There was no other showing that the appellant had any knowledge, much less dominion and control, of the pentazocine pills found in the tailor shop. The state’s evidence is legally insufficient to prove beyond a reasonable doubt that the appellant possessed the contraband. See Rodriguez v. State, 635 S.W.2d 552, 554 (Tex.Crim. App.1982); see also Oaks v. State, 642 S.W.2d at 178. We therefore sustain the appellant’s third ground of error.

Because of this disposition, we need not consider appellant’s first and second grounds of error, in which he contends that the trial court erred in overruling his motion to suppress the evidence seized.

The judgment of the trial court is reversed, and the appellant is ordered acquitted.