author: JORDAN, Justice.

text:
    Clyde Wayne FITZGERALD, Appellant, v. CATERPILLAR TRACTOR COMPANY and Towmotor Corporation, Appellees.
    No. 2-84-135-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 10, 1985.
    Denbow, Wells, Williford & Felber, and Mike Felber, Fort Worth, for appellant.
    Thompson & Knight, and Stephen C. Schoettmer, Dallas, for appellees.
    Before JORDAN, HUGHES, JOE SPUR-LOCK, II, and HILL, JJ.
   OPINION

JORDAN, Justice.

Appellant sued Towmotor Corporation and Caterpillar Tractor Company, the manufacturer and seller of a Towmotor Model T50B forklift alleging an injury on August 3, 1977, when the blade of the forklift became disengaged from the carriage and fell on appellant’s foot. The forklift in question was delivered to Ryder Truck Lines, Fitzgerald’s employer on February 25, 1974. The suit was based only on alleged breach of the implied warranty of fitness. Appellees filed motion for summary judgment claiming that there was no fact issue raised regarding an implied warranty of fitness or merchantability and that any action Fitzgerald may have had was barred by the appropriate statute of limitations.

The trial court granted appellee’s motion for summary judgment and Fitzgerald appeals on two points of error.

We affirm.

Appellant first claims error in the granting of appellee’s motion for summary judgment because, he says, there was an issue of fact raised concerning the merchantability of the forklift in question. In support of this position Fitzgerald points to his deposition testimony that he had driven forklifts since 1962; he had received driver’s training on forklifts; and since his injury on August 3, 1977, he has looked at other forklifts to satisfy his natural curiosity about the design of the forklifts. He then testified that the slot on the carriage of the forklift should be modified by the addition of an Allen screw to prevent the blade from slipping out of the slot. Fitzgerald, on the other hand, admitted in his deposition that he is not a design mechanic, nor an engineer and that he doesn’t pretend to be an expert in the area of forklift design. He also conceded that the forklift and blade on the Towmotor Model T50B were basically the same as other forklifts and that the forklift and its blade assembly would pass as standard in the industry, both at the time of his injury and at the time his deposition was taken.

At the summary judgment hearing appel-lees produced the affidavit testimony of Thomas R. Lajeunesse, who at that time was an engineer and manager of safety and ecology for Towmotor Corporation, the manufacturer of the forklift in question. He had been senior sales engineer for Tow-motor from 1971 to 1981. His affidavit read in part:

Furthermore, I am aware of and have inspected as part of my professional responsibilities the forklifts of competitors in the marketplace. I have inspected and reviewed other forklifts, similarly sized to the Model T50B forklift involved in this lawsuit. Similarly sized forklifts are those with a lifting capacity between 2,000 to 5,500 lbs. The T50B forklift, including the carriage, forks and mounting arrangement, would pass without objection in the trade. Particularly, the fork mounting arrangement, wherein the forks are mounted on the carriage, is the standard hook-carriage design concept that is approved and used not only on TOWMOTOR forklifts, but it has been approved and used by all manufacturers of similarly sized forklifts throughout the world. This standardized hook-carriage design permits the free interchange of attachments among forklift manufacturers. The hook carriage arrangement was utilized during 1974 at the time of manufacture of this particular forklift and continues to be utilized at the present, worldwide.

In a breach of warranty action for personal injuries as a result of a defect in a product, the plaintiff must establish that the product in question was not merchantable or fit for the purpose for which it was intended on the date of delivery, or in other words at time of manufacture of the product. Ford Motor Co. v. Tidwell, 563 S.W.2d 831, 835 (Tex.Civ.App.—El Paso 1978, writ ref’d n.r.e.); TEX.BUS. & COM. CODE ANN. sec. 2.314 (Vernon 1968). The question we have to answer is whether the summary judgment proof raised a fact issue as to whether or not the forklift was fit for the purposes for which it was intended at the time it left the manufacturer’s possession. As was said by the 5th Circuit Court of Appeals, “[t]o recover from a manufacturer on a theory of implied warranty under Texas law, one must establish that there is a defect in the object sold as it left the manufacturer ... The defect may be one of design, material, or manufacture.” Clark v. DeLaval Separator Corp., 639 F.2d 1320, 1326 (5th Cir.1981). We hold that the summary judgment evidence did not raise a fact issue on the question of whether the forklift was fit for the purpose for which it was intended at the time it left the manufacturer, Towmotor Corporation, on February 18, 1974.

In determining the correctness of a summary judgment, we must decide if the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiffs cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Wilcox v. St. Mary’s University, 531 S.W.2d 589, 593 (Tex.1975).

In considering the summary judgment proof on the issue of alleged breach of implied warranty of merchantability, which we have set out in this opinion, it is clear that this proof did not contain any legitimate, probative evidence of a defect or flaw in the design, material or manufacture of the forklift when it left the possession of the manufacturer, Towmotor, on February 18, 1974. The testimony of Thomas R. Lajeunesse, an interested expert witness, is clear, positive and direct that the forklift, including the carriage, forks and mounting arrangement, was fit for the purpose for which it was to be used when it left the manufacturer and that the carriage, forks and mounting arrangement are used by all manufacturers of similarly sized forklifts throughout the world.. Fitzgerald admitted that the forklift and blade in question were basically the same as other forklifts he had examined, and that its blade assembly would pass as standard in the industry. We fail to see how even appellant’s own testimony can be said to raise a fact issue as to the existence of a breach of implied warranty of the forklift at the time it left the manufacturer.

Moreover, we do not think the lay testimony of Fitzgerald, admittedly not an engineer or an expert in forklift or forklift blade assembly design, could raise a fact issue as to the design, material or manufacture of a complicated piece of machinery such as a forklift. Appellant’s testimony was incompetent to raise a fact issue on this matter and was probably totally rejected by the trial court in its consideration of the state of the evidence for purposes of summary judgment. See Duncan v. Horning, 587 S.W.2d 471, 474 (Tex.Civ.App.—Dallas 1979, no writ); Murfee v. Oquin, 423 S.W.2d 172,174 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.).

The plain, uncontroverted affidavit evidence of Lajeunesse, the Towmotor engineer, though he is an interested witness, is sufficient, considering all of the summary judgment proof here, to support the granting of the summary judgment. See TEX.R.CIV.P. 166-A(c). We recognize that the general rule in summary judgment proceedings is that the uncontroverted testimony of interested witnesses does no more than create a fact issue. However, under Rule 166-A(c), an exception to this general rule exists if the uncontroverted testimony of interested witnesses is (1) clear, positive and direct; (2) otherwise credible; (3) free from contradictions and inconsistencies; and (4) could have been readily controverted. Hunsucker v. Omega Industries, 659 S.W.2d 692, 697 (Tex. App.—Dallas 1983, no writ). The affidavit testimony of Lajeunesse, supported in part by Fitzgerald’s own admissions in his deposition, comports comfortably and convincingly with the meaning of Rule 166-A(e).

Lajeunesse, though an interested witness, was unquestionably an expert witness as shown by his affidavit. Fitzgerald, on the other hand, though he attempted to say that the addition of an Allen screw to the slot on the carriage of the forklift would prevent the blade from slipping out of the slot, freely admitted that he was not a design mechanic nor an engineer and that he was not an expert in the area of forklift design. We hold that neither this nor any other testimony of Fitzgerald raised a fact issue as to unfitness of the forklift when it left the hands of the manufacturer.

We find some similarity between this case and Tidwell cited by appellant in his brief for the proposition that circumstantial evidence may be the sole basis for a finding of breach of implied warranty. Tidwell, 563 S.W.2d at 835. In Tidwell the plaintiff had sued Ford Motor Company complaining of several defects in a new car purchased from one of its dealers, the main defect having to do with a dangerous condition connected with the steering gear which did not appear until after the mechanism was worked on by the dealer. Id. With respect to the testimony regarding the steering mechanism, the El Paso court said “[t]his (testimony on steering defect) is of importance because the Plaintiff and his wife were the only ones that established their complaints, and both readily admitted that they had no mechanical experience. There was no testimony offered as to what caused the serious turning defect.” Id. (Emphasis added.) The court held that the plaintiffs evidence was not sufficient to negate the possibility that an intermediate act or agency produced that turning defect. Id.

We do not agree that Tidwell holds that breach of implied warranty may be proven solely by circumstantial evidence. We think a careful reading of Tidwell reveals that the court, by way of dicta, said that the plaintiff could rely on circumstantial evidence to show that the article was defective at the time it left the hands of the manufacturer or seller. See id. This is not saying, as Fitzgerald argues, that a plaintiff in a breach of warranty case, may rely on circumstantial evidence alone to show the existence of a defect. We think the Tidwell court was referring only to proof of the time the defect first appeared. Moreover, even if appellant’s point as to circumstantial evidence is well taken, his testimony, as we have shown, since it was lay testimony in an area requiring expert testimony, did not raise a fact issue that the forklift in fact was defective in any way when it left the manufacturer.

Appellant’s first point of error is overruled.

By his second point of error Fitzgerald argues that the granting of the summary judgment was erroneous for the reason that his cause of action is not barred by the statute of limitations. The applicable statute of limitations is found in TEX.BUS. & COMM.CODE ANN. sec. 2.725 (Vernon 1968), which reads in pertinent part as follows:

(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued ....
(b) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.

Id. (Emphasis added.)

It is appellant’s position, in order to defeat the barring of his action by limitations, that his cause of action for breach of implied warranty does not arise until the time he discovered or should have discovered the injury. This is not, however, what TEX.BUS. & COMM.CODE ANN. sec. 2.725 says. That section, in part, as shown above, plainly and unequivocally says the cause of action accrues when the breach occurs; a breach of warranty occurs when tender of delivery is made. Id. In this case, the forklift was delivered to Ryder Truck Lines, Fitzgerald’s employer on February 25, 1974, the injury occurred August 3, 1977, and suit was filed July 30, 1981. This suit, then, was filed far more than four years after the forklift was delivered. Based upon the explicit provisions of sec. 2.725, appellant’s cause of action in warranty would have been barred on February 25, 1978. See id.

This court cannot read into the clear provisions of sec. 2.725 a statement that a cause of action for breach of implied warranty does not accrue until the user discovers or should have discovered the warranty. To do so would alter or add to the statute itself and this is for the legislature, not this court, to do. Accordingly, we hold that under the plain English language of sec. 2.725, appellant’s cause of action for breach of implied warranty was barred by limitations and that the trial court’s granting of summary judgment was correct. See: Garvie v. Duo-Fast Corp., 711 F.2d 47, 48-49 (5th Cir.1983); Clark, 639 F.2d at 1325; Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 892 (Tex.App.—El Paso 1983, no writ).

Appellant’s second point of error is overruled and the judgment is affirmed.


source: Caselaw Access Project

author: HUGHES, Justice.

license: Public Domain

text:
    Bufford Elvin LOCKARD, Appellant, v. The STATE of Texas, State.
    No. 2-84-023-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 16, 1985.

      Paul Conner, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and David L. Richards, Asst. Dist. Atty., Fort Worth, for the State.
    Before FENDER, C.J., and HUGHES and JORDAN, JJ.
   OPINION

HUGHES, Justice.

Bufford Elvin Lockard has appealed his conviction for the offense of aggravated rape with a deadly weapon. TEX.PENAL CODE ANN. sec. 21.03 (Vernon 1974). He was indicted as a habitual offender, which allegations the jury found to be true, and then sentenced by the jury to life imprisonment.

We affirm.

On the afternoon of October 5, 1982, the victim, a speech therapist to handicapped children, was abducted at gunpoint by a white male, in a grocery store parking lot, and forced into her own car. After forcing her to drive a short distance, he blindfolded her with his shirt and drove her to a motel. While she was led to an upstairs room, she was able to observe the outdoor carpeting on the stairs. Once inside the room, he blindfolded her with a bra and after tying her to the bed, for four hours, he raped her, performed oral sex on her, and attempted anal sex.

After dark, he blindfolded the victim again and led her to her car which he drove to a secluded spot, there abandoning the victim and her car and fleeing on foot. She then drove to a friend’s house and called the police.

Fort Worth police officers Neel and Dodd responded to the call. The victim gave Officer Neel a detailed physical description of her attacker. She commented that he continually sniffed paint. She also gave the officers a general description of the businesses located near the motel. Based on the latter information, Neel concluded that the attack occurred at the Rio Motel on Camp Bowie Boulevard.

After proceeding to the motel and talking with the clerk, he learned that a man matching the description of the attacker had registered under the name “Jerry D. Wally.” The hotel registry showed that the man had originally been registered in room 256, but had moved to 257 very recently. After entering room 256 with a passkey, Officer Neel believed, based on his observations (odor of paint, rope tied to a section of the headboard, a paper sack with a bra), that the offense had been committed there.

Knowing that the person to whom room 256 had been registered had moved to room 257, Neel went to that room and knocked on the door. The appellant answered through the door, asking who it was. The officer said that it was the police and that they wanted to talk to him. Appellant opened the door and told them to come in if they wanted to talk. Officer Neel noted that the appellant matched the description of the attacker, including the height, weight, hair color, birthmark, and knife on the belt. He also noted that the room smelled of paint, and that several aerosol cans of paint, articles of women’s clothing, and sex aids were lying on top of a dresser in the room in plain view. Neel testified that, based on his experience, appellant appeared to be intoxicated on something other than alcohol. Officer Neel asked the appellant his name, to which appellant replied, “Jerry Lee Wally.” Officer Neel then informed appellant that he was under arrest, and read the Miranda warning to appellant.

The next day, the victim identified appellant as her attacker from a photo lineup. She also identified him at trial.

In his first two grounds of error, appellant claims that the trial court erred by admitting police testimony about (1) incriminating items found in appellant’s motel room and (2) about oral statements made by appellant because both were fruits of a purportedly illegal warrantless arrest. Appellant admits that there was an abundance of evidence to obtain an arrest warrant and asserts that the police should have done so because there was no indication that the appellant would attempt to escape, as is required by TEX.CODE CRIM.PROC. ANN. art. 14.04 (Vernon 1977) as a pre-con-dition to warrantless arrest. We disagree.

According to the evidence, appellant, was not under arrest until after the police knocked on the door of the appellant’s motel room and were admitted voluntarily. Appellant matched the description given by the victim, and the items of physical evidence of which appellant now complains (paint cans, women’s clothing, sex aids) were in plain view. At this point, the intrusion into appellant’s privacy was merely an investigative detention.

An investigative detention is a lesser intrusion into the privacy of an individual than an arrest. Ferguson v. State, 573 S.W.2d 516, 522 (Tex.Crim.App.1978). Given that the officers in this case could have obtained an arrest warrant, we find no authority which required them to do so, rather than pursue the lesser intrusion of simply knocking on the door and asking to talk to the occupant. The appellant was not obligated to invite the officers inside to talk. Once they were admitted into the room voluntarily, the officers were entitled to look for evidence in plain view. The officers were later entitled to testify as to their observations.

Perhaps the officers should have obtained a warrant before making an arrest. However, we do not address this question because we hold that the evidence observed and testified to was the fruit of an investigative detention, not of an arrest, legal or otherwise.

Therefore, we hold that it was not error to admit testimony of the physical evidence and oral statements which resulted from the police investigation. Appellant’s first two grounds of error are overruled.

Appellant’s third ground of error complains of the admission of the testimony of police to the effect that the appellant stated to them that his name was “Jerry Lee Wally” without first having been warned of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant contends that he was under “custodial interrogation” at the time he gave them the false name and that his statements were, therefore, subject to Miranda. We disagree.

The officer testified that after having a chance to look around appellant’s room and see all the evidence of the crime, appellant was not free to leave. He asked the appellant his name, to which appellant replied, “Jerry Lee Wally,” thereby linking himself to the scene of the crime inasmuch as a person by that name had registered in the adjacent room, number 256. Appellant was then placed under arrest and was read his rights.

Without addressing the question of whether the appellant was in custody when the officer asked him his name, we hold that he was not then under interrogation. We do not think that this was the kind of question which was prohibited in Miranda. Appellant cites no authority, and we find no authority, for the proposition that asking the name of a person under arrest is an attempt to elicit incriminating statements from his own mouth. The fact that appellant in this case gave the police a fictitious name, one which linked him to the crime, does not negate the innocence of the question.

TEX.PENAL CODE ANN. sec. 38.02 (Vernon Supp.1984) specifically makes it a crime not to identify oneself truthfully to a police officer after being lawfully detained.

We hold that the testimony of the police officer that appellant stated his name was “Jerry Lee Wally” was properly admitted. Appellant’s third ground of error is overruled.

Appellant’s fourth ground of error complains of the trial court’s refusal to allow defense counsel to impeach the testimony of the victim with a prior inconsistent statement without recalling the witness to the stand.

On January 17, 1984, the victim testified during a hearing on a motion to suppress the photo lineup identification, out of the presence of the jury, as follows:

Q. Were you able to see any distinguishing marks on his arms at all?
A. Yes. He had either a tatoo or a mole on his arm.
Q. You indicated that the man who abducted you had a ... Either a tatoo or a mole on one of his arms; is that right?
A. Yes.

The witness was later afforded a chance to see appellant’s arms when the court ordered him to roll up his sleeves.

On January 18, 1984, during the course of the trial and in the presence of the jury, the victim testified as follows during cross-examination (for the sake of anonymity, the victim’s name is deleted from our rendition of the facts):

Q. Okay. Mrs_, yesterday you gave some testimony, did you not, outside of the presence of the Jury?
A. Yes.
Q. Did you tell the Court at that time that you were not sure whether the mark upon the person who abducted you was a tatoo or a mole?
A. Yes, I did say that.
Q. All right. And I believe you further said that in your opinion, your recollection, it was probably about the size of a quarter; is that right?
A. Yes.
Q. And isn’t it also further true, Mrs. _, that yesterday you were unable to remember which arm that mark was on; is that correct?
A. You asked for a specific arm. There was one on each arm.
Q. So the answer to my question is, is that what you said yesterday? Did you tell the Court yesterday that there was one on each arm?
A. I think so. I don’t ... I don’t remember.
Q. All right. You were given the opportunity yesterday to look at both of the Defendant’s arms here in Court outside the presence of the Jury; were you not, ma’am?
A. Yes.
MR. BANKSTON [defense attorney]: Your Honor, at this time we would pass the witness, but we would reserve the right for further recall in the event that becomes necessary—

On January 19, 1984, appellant’s attorney offered to present to the jury that portion of the victim’s testimony from January 17, 1984, which is recited above. Appellant declined to recall the victim to the stand, claiming “she already denied having made the statement, so I think we are in a posture now ... Not be anything else gained to calling her to the stand except to re-ask the question and go on through it again.” The State objected on the basis that the victim had not been confronted with any inconsistency and, therefore, had not been afforded an opportunity to explain her testimony. The court sustained the objection.

In his brief, appellant acknowledges that a witness must be given a chance to explain an alleged inconsistency in that witness’ testimony. TEX.R.EVID. 612(a). The appellant asserts that the victim in this case was confronted with an inconsistency and chose not to explain it. We disagree.

The testimony of January 18, 1984, which we have recited indicates that the victim was questioned as to what she had said on the previous day, to which she replied, “I don’t remember.” Appellant’s attorney failed to have her actual statements read back to her so she could explain them. We hold, therefore, that the trial court was correct in refusing to allow appellant to introduce those statements after the victim had finished testifying without recalling her to the stand. Appellant’s fourth ground of error is overruled.

Appellant’s fifth ground of error alleges that testimony concerning a blood test of the victim was improperly admitted because there was no chain of custody proven and because the vial in which the blood had been kept was not introduced.

The evidence shows that Dr. Steven Sa-kovich, a physician at John Peter Smith Hospital, performed a rape examination on the victim on October 5, 1982. Among the specimens and samples taken during the exam was a blood sample. The sample was labelled by him, placed in an envelope which was sealed and carried to the front of the emergency room, and placed in a crime lab lock box.

Susan Taylor, a Fort Worth Police Department Crime Lab Serologist, removed the envelope from the refrigerated lock box on October 8, 1982. The envelope was still sealed and labelled. After the seal was broken, the vial was taken out of the envelope and tests were conducted. Taylor testified that because blood samples are not suitable for testing after three to four months, and, because if maintained at room temperature such samples eventually grow bacteria and pose a health hazard, blood vials such as the one tested here are discarded.

Appellant argues that there was a “testimonial” break in the chain of custody between Dr. Sakovich and Susan Taylor because Taylor never testified that the blood vial she tested was the same one Dr. Sakovich had labelled. We disagree. Taylor testified that the blood vial she tested was removed from a sealed envelope which Dr. Sakovich had labelled and placed in a lock box. The fact that the vial itself was not labelled does not break the chain of custody.

The case of Brown v. State, 240 S.W.2d 310 (Tex.Crim.App.1951), which appellant cites as authority, is not on point. In that case, a blood sample was drawn from the defendant by a nurse in the presence of a police officer. The nurse did not testify and the officer only testified that the blood was placed in a tube and left at the hospital. There was no proof that it was la-belled by the same person who drew the blood. We hold that, in this case, there was no testimonial break in the chain of custody.

Appellant further contends that there was a “physical” break in the chain of custody because the vial in which the blood had been kept was not introduced and the blood itself had been disposed of. We again disagree.

Taylor testified that blood cannot be safely stored more than three to four months without posing a health hazard, and that even when refrigerated it would begin to decompose. She also testified that there is no need to save the blood as long as the donor is alive and available to give additional blood if needed. Furthermore, we hold that it was not necessary to introduce the blood vial because Taylor testified that the blood vial she tested was removed from a sealed, labelled envelope which was introduced. Appellant’s fifth ground of error is overruled.

Appellant’s sixth ground of error complains of the introduction of two Petitions to Revoke Probation and two Orders Revoking Probation as parts of a penitentiary packet for enhancement purposes during the punishment phase of the trial. Appellant contends that these do not constitute final convictions as required by TEX.CODE CRIM.PROC.ANN. art. 37.07(3)(a) (Vernon 1981). We disagree.

Orders Revoking Probation were expressly made admissible in the recent case of Elder v. State, 677 S.W.2d 538 (Tex. Crim.App.1984). Their admission into evidence, therefore, was clearly not in error.

As for the Petitions to Revoke Probation, we hold there was no error because the trial court struck the alleged violations of the terms and conditions of probation before admitting the petitions. There is no case precedent precisely on point. However, in Hernandez v. State, 599 S.W.2d 614, 616 (Tex.Crim.App.1980), the court stated that an “Order Revoking Probation” would be admissible without the “Motion to Revoke Probation” because “it was the motion that supplied the harmful detail.” In this case, the arguably harmful details (the alleged violations of terms of probation) were removed from the petitions, thereby making the petitions admissible. Appellant’s sixth ground of error is overruled.

Appellant’s seventh ground of error alleges that the trial court erred by admitting evidence of final convictions which were allegedly obtained in violation of plea bargain agreements, thereby violating the due process clauses of the United States and Texas Constitutions.

In October 1978, appellant was arrested in Tarrant County for theft. He was indicted in Cause No. 15275, subsequently pled guilty, and was sentenced to a four-year probated sentence. In November 1979, appellant was arrested in Tarrant County for burglary. He was indicted in Cause No. 19661A, pled guilty and received a five-year sentence. He pled “true” to the allegations in the motion to revoke his theft probation and received a four-year sentence to run concurrently with his burglary sentence. After four months in the Texas Department of Corrections, his probation was reinstated in Cause No. 15275 under TEX.CODE CRIM.PROC.ANN. art. 42.12, sec. 3e (Vernon 1977) (shock probation). Additionally, it appears that appellant was simultaneously placed on shock probation in Cause No. 19661A.

Seven months later, appellant was arrested in Parker County on two counts of burglary of a habitation. In one count, the injured party was named Jake Garner and in the other count, the injured party was named Fred Davies. The Tarrant County District Attorney filed a Petition to Revoke Shock Probation. A plea bargain was reached whereby the appellant would plead “true” to the probation violation involving Jake Garner, and the Parker County District Attorney would prosecute only the burglary of Jake Garner. The case involving Fred Davies was to be dismissed in both counties.

During the probation revocation proceeding, the attorneys on both sides asked the appellant if he knew he was waiving his right to appeal. He said that he did. The judge accepted the plea bargain except as to the right of appeal. He told the appellant that he was entitled to appeal and asked him if he desired to do so, to which the appellant replied, “No.”

Ten days later, the appellant pled guilty in Parker County in Cause No. 8623 to the burglary of a habitation of Fred Davies. The case involving Jake Garner was dropped. The Parker County District Attorney apparently dismissed the wrong suit.

Nevertheless, the record clearly shows that the Parker County District Attorney agreed to prosecute only one of two burglary charges, which he did; and that the appellant agreed to plead guilty to only one of two burglary charges, which he did. If the Parker County District Attorney had prosecuted the correct charge, the appellant would have been just as obligated by the bargain to plead guilty to it as he was to the other charge. The error in no way affected the punishment assessed against the appellant and was, therefore, harmless. See Johnson v. State, 660 S.W.2d 536, 538 (Tex.Crim.App.1983).

Furthermore, the appellant did not object to the mistake, nor did he appeal the probation revocation in Tarrant County. The appellant did not raise the issue until one and one-half years later when all these convictions and revocations were included in the pen packet which was introduced at the punishment phase of the rape trial with which we are now concerned.

A voluntary plea of guilty waives all non-jurisdictional defects. Wheeler v. State, 628 S.W.2d 800, 802 (Tex.Crim.App. 1982). The voluntariness of the appellant’s guilty plea was not affected by the error herein presented because the State substantially complied with their agreement to prosecute only one burglary charge and the appellant received, in substance, the benefit of his bargain. See Pelton v. U.S., 465 F.2d 952, 954 (1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973). We hold that any error was, therefore, waived at the hearing on the guilty plea. Since the appellant did not give notice of appeal within the statutory period of time required by TEX.CODE CRIM.PROC. ANN. art. 44.08(b) (Vernon Supp.1981), he cannot now use it to his advantage. Appellant’s seventh ground of error is overruled.

In his eighth and final ground of error, appellant alleges error in the introduction of a pen packet used for enhancement purposes and containing evidence of a conviction in Cause No. 19661A which was allegedly not proven to be final.

The record shows that on January 17, 1980, the appellant pled guilty to a burglary in Tarrant County in Cause No. 19661A, and was assessed a punishment of five years. His probation from the prior theft conviction, Cause No. 15275, was revoked at the same time and the judge sentenced him to begin serving two to four years for the theft conviction and two to five years for the Tarrant County burglary conviction.

On March 27, 1980, appellant was released from the penitentiary and placed on “shock probation” in both causes. On December 12, 1980, the Tarrant County District Attorney filed Petitions to Revoke Probation in both causes, based on the Parker County burglaries discussed in the previous ground of error. On May 5, 1981, appellant’s probation was revoked in both causes, and he was sentenced in both causes.

Appellant points out that the record also contains a blank “suspension of sentence” form for Cause No. 19661A, which is located in the appellate record in between the January 17, 1980 sentence and the March 27,1980 Order Setting Conditions of Probation. Appellant contends that since this form is blank (except for appellant’s name and the cause number), there is no proof that he was ever placed on probation, and, therefore, the subsequent revocation could not be a final conviction. We disagree.

The existence of the blank form was a clerical error. The judgment and sentence for the Tarrant County burglary charge of January 17,1980 proved the finality of that conviction and provided the basis for a subsequent probation revocation on May 5, 1981. The State was not obligated to provide an Order Granting Probation on March 27, 1980 (assuming that the Order Setting Conditions of Probation does not already constitute an Order Granting Probation). Appellant’s eighth ground of error is overruled.

Affirmed.


author: HILL, Justice.

text:
    Mark D. HIXSON, Kamal Shuja, James M. Cullen and Raymond Blair, Appellants, v. PRIDE OF TEXAS DISTRIBUTING CO., INC., Appellee.
    No. 2-84-041-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 16, 1985.

      Bishop, Payne, Lamsens & Brown and Richard M. Mosher, Fort Worth, for appellants.
    Hill, Heard, Oneal, Gilstrap & Goetz and Frank Gilstrap and John L. Robinson, Arlington, for appellee.
    Before HUGHES, JOE SPURLOCK, II and HILL, JJ.
   OPINION

HILL, Justice.

Suit was brought by Pride of Texas Distributing Company, Inc., appellee, against A to Z Grocery, Inc., for an unpaid bill for gasoline. Pride of Texas also sought recovery from appellants Mark D. Hixson, Kamal Shuja, and James M. Cullen, who are the directors, officers, and stockholders of A to Z Grocery, Inc., and from appellant Raymond Blair, who purchased the assets of the corporation from Hixson, Shuja and Cullen. Pride of Texas recovered a judgment against all defendants, and all except A to Z Grocery, Inc. have appealed.

We affirm.

Appellee is an unsecured creditor of A to Z Grocery, Inc. Appellee sued to recover $6,466.13 owed by the corporation for gasoline delivered to it on an open account. Appellee additionally sued Hixson, Shuja and Cullen individually, seeking recovery on three alternate theories: 1) alter ego; 2) trust fund; and 3) the denuding of corporate assets. Appellee also sued Blair, the purchaser of the corporation's assets, for: 1) fraudulent conveyance; and 2) violation of the Texas Bulk Transfer Act.

The case was tried before a jury and appellee obtained favorable findings to the special issues submitted. The trial court thereupon rendered judgment against A to Z Grocery, Inc. and appellants Hixson, Shu-ja and Cullen, jointly and severally, for actual damages in the amount of $6,466.13, and attorneys’ fees in the amount of: $2,500 for work performed at the trial level, $2,000 if an appeal is filed with the Court of Appeals, and $2,000 if an application for writ of error is filed, but not granted, by the Supreme Court of Texas. Additionally, the sale of the corporation’s assets to appellant Blair was set aside, and he was appointed receiver with instructions to account for and sell these assets.

By points of error one through three, appellants complain of the wording of Special Issue No. 1 which dealt with piercing the corporate veil. The issue states:

SPECIAL ISSUE NO. 1
Do you find, from a preponderance of the evidence, that Defendants Hixson, Shuja, and Cullen used the corporation A to Z Grocery, Inc., as a sham or as their alter ego to avoid personal liability or to justify a wrong or to achieve an inequitable result or to evade an existing obligation.
Answer “We do” or “We do not.”
ANSWER: We do.

Specifically, appellants contend that at the time of trial there did not exist a disputed material fact issue regarding the alter ego theory; therefore, appellants reason, the issue of whether to disregard the corporation was a question of law for the court, and Special Issue No. 1 should not have been submitted. Appellants additionally assert that the special issue poses an incorrect legal standard for piercing the corporate veil inasmuch as it does not require a finding of fraud or bad faith in the initial incorporation of the business, or in its management. Lastly, appellants urge that there was either no evidence to support the jury’s answer to this issue, or that the answer is so against the great weight and preponderance of the evidence as to be clearly unjust.

In seeking personal liability against Hix-son, Shuja, and Cullen, appellee was relying on the trust fund theory (Special Issue No. 8) and the denuding of corporate assets theory (Special Issue No. 2), in addition to the alter ego theory. These theories are separate and distinct causes of action.

Where a judgment may rest upon more than one ground, the party aggrieved must assign error to each such ground, or he has waived his right to complain of the ruling to which no error was assigned. Bailey v. Rogers, 631 S.W.2d 784, 786 (Tex. App.—Austin, 1982, no writ); Jones v. Austin Co., 531 S.W.2d 377, 380 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.). See also Gillett v. Ackterberg, 159 Tex. 591, 325 S.W.2d 384, 385 (1959).

The trust fund theory was recognized in Texas in the Supreme Court case of Lyons-Thomas Hardware Co. v. Perry Stove Manuf'g Co., 86 Tex. 143, 24 S.W. 16 (1893). The theory was well set out in the case of Fagan v. La Gloria Oil and Gas Company, 494 S.W.2d 624 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ):

[W]hen a corporation (1) becomes insolvent and (2) ceases doing business, then the assets of the corporation become a trust fund for the benefit, primarily, of its creditors. The officers and directors hold the corporate assets in trust for the corporate creditors. They are placed in the fiduciary relation to and owe a fiduciary duty to the creditors. That duty obliges them to administer the corporate assets for the benefit of the creditors and to ratably distribute them. The breach of that duty gives rise to a cause of action against the officers and directors which can be prosecuted directly by the creditors.

Id. at 628. The liability is limited to the extent of the value of the corporate assets received by all the directors. Henry I. Siegel Co., Inc. v. Holliday, 663 S.W.2d 824 (Tex.1984).

The denuding of corporate assets theory is recognized in Texas in the case of World Broadcasting System, Inc. v. Bass, 160 Tex. 261, 328 S.W.2d 863 (1959). In that case, Bass and Mrs. McPheron, sole stockholders of a Delaware corporation, sold their stock in the corporation to Miller, or to a Texas corporation to be formed by him. Miller paid them with cash and gave them a note secured by the assets of the Delaware corporation and the stock of the new Texas corporation. The Texas corporation was formed, the stock and assets of the Delaware corporation were transferred to it, the Delaware corporation was dissolved, and Bass and McPheron were paid as secured creditors of the dissolved Delaware corporation. An unpaid creditor of the Delaware corporation brought suit against Bass and McPheron individually, and the Texas Supreme Court upheld a judgment against them, opining:

The corporation was stripped of its property as completely and effectively as if it had been dissolved and its assets appropriated by respondents. Respondents obtained benefits and advantages that would have been theirs if they had actually sold such assets to the new corporation. Although purporting to be a simple sale of capital stock, the transaction was in legal contemplation the equivalent of a disposition of the corporate assets. Respondents thereby became personally liable for the outstanding debts of the Delaware corporation to the extent of its assets thus appropriated by them.

Id. 328 S.W.2d at 866.

Appellants present no point of error which relates to either of these alternate theories.

We hold that the judgment of Pride of Texas as to Hixson, Shuja, and Cullen must be affirmed because by failing to assign error to the judgment with regard to the trust fund theory or the denuding of corporate assets theory, appellants have waived their right to complain of the judgment on appeal. See Jones, 531 S.W.2d at 380. Accordingly, we find it unnecessary to address appellants’ contentions with regard to Special Issue No. 1, which dealt with the alter ego theory of recovery.

In point of error four appellants contend that the jury’s answer to Special Issue No. 7 is immaterial or inapplicable to the facts of this case as a matter of law. Alternatively, appellants contend in point of error five that there is no evidence to support the jury’s verdict, or that the jury’s answer is so against the great weight and preponderance of the evidence as to be clearly unjust.

Special Issue No. 7 stated:

Do you find, from a preponderance of the evidence, that Defendant Raymond D. Blair failed to give notice of the intended bulk transfer to the creditors of Defendant A to Z Grocery, Inc., at least 10 days before he took possession of the goods?
Answer “We do” or “We do not.”
ANSWER: We do.

Some further background information regarding the subject transaction is necessary at this point so as to fully comprehend the nature of appellants’ contentions. The pertinent facts are that appellants Hixson, Cullen and Shuja agreed to sell the assets of the Fort Worth store of A to Z Grocery, Inc. to appellant Blair, who took possession and began operations in the store no later than December 3, 1982. Subsequently, on December 8, 1982, appellants attempted to comply with the Texas Bulk Transfer Act, TEX.BUS. & COM.CODE ANN. ch. 6 (Vernon 1968), and sent a “Notice of Intended Bulk Transfer” to the creditors of A to Z Grocery, Inc. On December 15, 1982, an “Amended Notice of Intended Bulk Transfer” was sent by appellants to the corporation’s creditors. The sale to Blair was completed on December 27, 1982 when he paid a total consideration of $34,500 in two checks, made payable to two creditors who held security interests in the assets being transferred: InterFirst Bank Irving and First City Bank Central Arlington, N.A. Appellee was listed on the notices of bulk transfer as one of the corporation’s unsecured creditors, but appellee’s claim for $6,466.13 was not satisfied at the closing. The instant lawsuit ensued wherein appel-lee claimed, among other things, that the transfer of the corporation’s assets to Blair was void in that the parties did not properly comply with the notice provisions of the Texas Bulk Transfer Act.

TEX.BUS. & COM.CODE ANN. sec. 6.105 (Vernon 1968) provides that any bulk transfer subject to chapter 6 (with one inapplicable exception) is ineffective against any creditor of the transferor unless at least ten days before he takes possession of the goods or pays for them, whichever happens first, the transferee gives notice of the transfer in the manner and to the persons provided in chapter 6.

A “bulk transfer” is any transfer in bulk and not in the ordinary course of the trans-feror’s business of a major part of the materials, supplies, merchandise or other inventory of an enterprise subject to chapter 6. TEX.BUS. & COM.CODE ANN. sec. 6.102(a) (Vernon 1968). In the instant case, the jury found that A to Z Grocery, Inc. transferred a major portion of its materials, supplies, merchandise or other inventory to appellant Blair. Appellants do not challenge this finding, and the evidence clearly substantiates that the transfer from A to Z Grocery, Inc. to Blair was a “bulk transfer” and subject to the provisions of chapter 6. Appellants contend, however, that the transfer to Blair fell within the purview of sec. 6.103(3) which provides an exemption for “[tjransfers in settlement or realization of a lien or other security interest.” TEX.BUS. & COM.CODE ANN. sec. 6.103(3) (Vernon 1968). Appellee counters that the exemption of sec. 6.103(3) does not apply because: 1) appellants are required to plead the exemption as an affirmative defense under TEX.R.CIV.P. 94; and, 2) appellants have not shown that the notes to the two secured creditors were in default and subject to foreclosure.

There are no Texas cases requiring that the exemption allowed by sec. 6.103(3) be pled as an affirmative defense and we decline to require such pleading. Accordingly, we will proceed to address the issue of whether the exemption allowed by sec. 6.103(3) of the Texas Bulk Transfer Act is applicable to the subject transaction.

Neither party has cited us to any Texas cases construing sec. 6.103(3), and our own extensive research has revealed none. However, inasmuch as Texas enacted the Bulk Transfer Act in an attempt to simplify and make uniform the bulk sales laws of the states that adopt the Act, TEX.BUS. & COM.CODE ANN. sec. 6.101 comment 1 (Vernon 1968), we have reviewed decisions of other states to determine how sec. 6.103(3) has been construed.

There still appears to be very little case law interpreting the statute in question. The case of Starman v. John Wolfe, Inc., 490 S.W.2d 377 (Mo.App.—St. Louis 1973), dealt with a situation wherein the court held that the bulk transfer was not exempt under 6.103(3) for three reasons: 1) there was no evidence that the secured party had a right to foreclose or demand delivery of the goods at the time of the transfer because there was no evidence that the debt- or was in default of any security agreement; 2) to be exempt under sec. 6.103(3) the transfer should be made to the holder of the security interest and not to the transferee for the benefit of the secured party; and, 3) not all of the consideration paid at closing was used to extinguish the secured party’s lien, which resulted in some creditors being preferred over other creditors.

Two subsequent cases have upheld a transfer of assets from the debtor to a third party, and have not required that the assets be transferred directly to the secured party. See Techsonic Industries v. Barney’s Bassin’ Shop, 621 S.W.2d 332 (Mo.App., S.D.1981); American Metal Finishers, Inc. v. Palleschi, 55 A.D.2d 499, 391 N.Y.S.2d 170 (1977). Techsonic distinguished the holding in Starman saying that in the latter case there was no evidence of a default, whereas in Techsonic there was definitely a default and all the proceeds went to the secured party. American Metal distinguished Starman saying that in Starman not all the proceeds were used to pay the secured party, whereas this was not the case in American Metal.

We hold that in order for a transfer to be exempt under sec. 6.103(3) there must be evidence of a default on the part of the debtor which results in the secured party having a present right to foreclose. See also United States Shoe Corp. v. Cudmore-Neiber Shoe Co., 419 F.Supp. 135, 138-39 (D.S.D., W.D.1976). In the case at bar, there was no evidence that either In-terFirst Bank Irving or First City Bank Central Arlington, N.A. had the present right to foreclose on the debt which was secured by the equipment and inventory in appellants’ store. Therefore, appellants were not entitled to claim that the transfer to Blair was exempt under sec. 6.103(3). In light of our holding, we will not reach the issue of whether the exemption allowed by sec. 6.103(3) requires that the transfer be made directly to the secured party, or whether it may be made to a third party so long as all of the proceeds are applied on the secured debt. Accordingly, we overrule appellants’ fourth point of error.

Appellants’ fifth point of error contends alternatively that there is either no evidence to support the jury’s verdict in response to Special Issue No. 7, or that the verdict is so against the great weight and preponderance of the evidence as to be clearly unjust.

In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidences and inferences to the contrary. See Stodghill v. Texas Emp. Ins. Ass’n, 582 S.W.2d 102, 103 (Tex.1979); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King’s Estate, 244 S.W.2d at 661-62.

A “no evidence” point of error must and may only be sustained when the record discloses one of the following: 1) a complete absence of evidence of a vital fact; 2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; 3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; 4) the evidence establishes conclusively the opposite of a vital fact. Royal Indem. Co. v. Little Joe’s Catfish Inn, 636 S.W.2d 530, 531 (Tex.App.—San Antonio 1982, no writ); Calvert, “No Evidence’’ and “Insufficient Evidence” Points of Error, 38 TEXAS L.REV. 361 (1960).

In reviewing a point of error asserting that a finding is “against the great weight and preponderance” of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. See Royal Globe Ins. Co. v. Suson, 626 S.W.2d 161, 163 (Tex.App.—Fort Worth 1981, writ ref’d n.r.e.). So considering the evidence, if a jury finding is so contrary to the weight and preponderance of the evidence as to be clearly wrong and unjust, the point should be sustained, the judgment of the trial court reversed, and the cause remanded for a new trial. Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585 (Tex.App.—Corpus Christi 1982, writ ref d n.r.e.). This is true even though the finding is supported by more than a scintilla of evidence and even though reasonable minds could differ about the conclusion to be drawn from the evidence. Id.

In considering whether the jury finding is against the great weight and preponderance of the evidence, we must remain cognizant of the fact that it is for the jury, as the trier of the fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony. See Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex.Civ.App.—Amarillo 1977, writ ref d n.r.e.). This court may not substitute its judgment for that of the jury if the challenged finding is supported by some evidence of probative value and is not against the great weight and preponderance of the evidence. Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213 (Tex.Civ. App.—Amarillo 1981, writ ref'd n.r.e.).

Appellants’ extremely brief argument in this regard merely states that since the record is unclear as to the exact date that Blair took possession of the goods, there is no reference point from which it can be determined whether or not appellants’ notice of bulk transfer was imparted ten days prior to the time the transferee took possession of the goods. We disagree.

Cullen testified that Blair took possession of the assets of A to Z Grocery, Inc. on or about December 1, 1982, while Blair testified by deposition that he took possession of the assets on December 3, 1982, and thereupon began to operate the store and hire new employees. We find that the latest date that Blair actually took possession of the corporate assets was December 3, 1982 and it is undisputed that appellants’ first “Notice of Intended Bulk Transfer” was not sent to the corporation’s creditors until December 8, 1982. Therefore, we hold that there was sufficient evidence for the jury to conclude that Blair failed to give notice of the intended bulk transfer to the creditors of A to Z Grocery, Inc. at least ten days before he took possession of the goods. Appellants’ fifth point of error is overruled.

Appellants’ fifth, sixth, seventh, eighth, ninth, tenth, and twelfth points of error relate to appellee’s recovery against appellant Blair under the fraudulent conveyance theory. In view of our holding with regard to points of error numbers four and five dealing with the alternative theory of recovery due to appellants’ failure to comply with the Bulk Sales Act, we find it unnecessary to review these points of error.

Appellants’ eleventh point of error contends that the trial court erred in rendering judgment against appellants for attorneys’ fees incurred in the preparation of appellee’s claim against A to Z Grocery, Inc. This point is supported by no authorities and no argument. As such, this point of error fails to meet the minimum briefing rules of TEX.R.CIY.P. 418 and is considered to be waived. See Hatch v. Davis, 621 S.W.2d 443, 447 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.); Estate of Blardone v. McConnico, 604 S.W.2d 278, 283 (Tex.Civ.App.—Corpus Christi), writ ref'd n.r.e. per curiam, 608 S.W.2d 618 (Tex.1980). Accordingly, point of error eleven is overruled.

The judgment is affirmed.

      . SPECIAL ISSUE NO. 8
      Do you find, from a preponderance of the evidence, that at the time of the sale to Raymond Blair that the corporation had become insolvent and had ceased doing business in good faith?
      Answer "We do" or "We do not.”
      ANSWER: We do.

        . SPECIAL ISSUE NO. 2
      Do you find, from a preponderance of the evidence, that, as a result of the sale to Raymond Blair, all or substantially all of the assets of A to Z Grocery, Inc., were disposed of to the advantage of or for the benefit of Defendants Hixson, Shuja, or Cullen, and that as a result the corporation was rendered incapable of paying its debts?
      Answer "We do” or "We do not.”
      ANSWER: We do.

      . We note that in American Metal there were two secured parties and the evidence showed that the debtor was clearly in default as to one of the secured parties; however, there is no evidence or discussion regarding whether the debtor was in default as to the second secured party.

      . Appellants apparently misnumbered their points of error in their brief, which action re-suited in two different points of error being numbered “five”.