author: SPEARS, Justice.

text:
    NOLANA DEVELOPMENT ASSOCIATION, Petitioner, v. Ann R. CORSI, Trustee, Respondent.
    No. C-3311.
    Supreme Court of Texas.
    Dec. 12, 1984.

      Levbarg & McGowan, Mark Z. Levbarg, Austin, for petitioner.
    Kazen & Ray, Hector Villarreal, Austin, for respondent.
   SPEARS, Justice.

This case involves breach of contract to pay money and breach of fiduciary duty. Nolana Development Association, a joint venture, sued Ann Corsi, individually and as trustee, alleging that her failure to pay part of the mortgage on Nolana’s lot resulted in the foreclosure and loss of the property. After a non-jury trial, the court awarded Nolana judgment for $750,000. Ann Corsi appealed, and the court of appeals reversed and rendered judgment that Nolana take nothing. 674 S.W.2d 874. We reverse the judgment of the court of appeals and, as modified, affirm the judgment of the trial court.

Nolana was a joint venture which in early 1977 was composed of Robert Conine, Lucille Hendricks and Lee Rogers. Nola-na’s only asset was a forty acre tract in Hidalgo County, which was subject to an outstanding note and lien of $140,000. On May 6, 1977, Rogers sold his interest in Nolana to Manny Corsi, Ann Corsi’s husband. As part payment, Manny assumed Rogers’ share of the indebtedness, but in order to pay the additional purchase price, the land was refinanced with a $189,000 note at Jefferson Savings & Loan Association. The original $140,000 note was retired, and the additional $49,000 went to Manny, which he used primarily to purchase Rogers’ interest.

Title to Nolana’s tract was placed in Ann Corsi’s name as trustee for the mutual convenience of the parties. The $189,000 note was signed by Ann Corsi “as trustee,” Robert Conine and Manny Corsi, but not by Lueille Hendricks, even though she owned a one-third interest in Nolana. Only Ann Corsi “as trustee” signed the deed of trust on the property. The name “Nolana” does not appear on the note or the deed of trust.

In a letter to Conine and Hendricks, dated May 6, 1977, Manny and Ann Corsi acknowledged that Conine, Hendricks, and the Corsis each owned one-third of the property, and the Corsis agreed to be solely responsible for the additional $49,000 as well as for one-third of the original $140,-000 debt. Ann Corsi signed this letter without the designation “as trustee.”

Manny died in December of 1977, and Ann was named Independent Executrix of his estate on August 2, 1978. She made no payments on the $189,000 note, and neither did Conine or Hendricks. By letters dated June 30, 1978, Jefferson informed the parties that the loan was in default and that foreclosure was imminent. Ann's attorney attempted to find a new partner to buy out Manny’s interest, but the proposed investor was rejected by Conine and Hendricks. After concluding that Ann would not pay Manny’s share of the note, Conine and Hendricks negotiated an arrangement whereby Jefferson would foreclose on the property, and later refinance and reconvey it, thus excluding Ann and her husband’s estate. No one paid the note, and Jefferson foreclosed on November 7, 1978. Jefferson, the only bidder on the property, purchased it for $229,092.39, the amount of the outstanding indebtedness, including interest and penalties. Jefferson then sold the land for $980,000 to someone other than Conine and Hendricks.

On appeal Nolana presents two points of error. First, it argues that the court of appeals erred in holding that Ann Corsi breached no fiduciary duty as trustee of Nolana’s real estate. Second, it argues that the court of appeals erred in not finding that Ann Corsi was individually liable for the damages caused by the foreclosure.

Under the breach of fiduciary duty claim, Nolana argues that Ann Corsi either breached her duties as an express trustee or as a resulting trustee. The requisites of an express trust are provided by the Texas Trust Code (Tex.Prop.Code Ann. § 101.001 et seq. (Vernon 1984)); however, the new trust code provides that the prior Texas Trust Act (repealed 1984) governs the validity of trusts entered into while the act was in force. Tex.Prop.Code Ann. § 111.-006(2) (Vernon 1984). The Nolana trust transactions are governed by the Texas Trust Act which provided the following methods for establishing a valid express trust:

A. A declaration in writing by the owner of the property that he holds it as trustee for another person, or persons, or for himself and another person or persons; or
B. A written transfer inter vivos by the owner of property to another person as trustee for the transferor or for a third person or persons; or
C. A transfer by will by the owner of property to another person or persons as trustee for a third person or persons; provided that a natural person as trustee may be a beneficiary of any such trust.
D. An appointment by a person having a power of appointment to another person as trustee for the donee of the power or for a third person; or
E. A promise by a person to another person whose rights thereunder are to be held in trust for a third person; or
F. A beneficiary may be a co-trustee and the legal and equitable title to the trust estate shall not merge by reason thereof. * * *
Provided, however, that a trust in relation to or consisting of real property shall be invalid, unless created, established, or declared:
1. By a written instrument subscribed by the trustor or by his agent thereunto duly authorized by writing;
2. By any other instrument under which the trustee claims the estate affected.

Texas Trust Act, ch. 148, § 7, 1943 Tex. Gen.Laws 232, 234, as amended in ch. 77, § 3, 1945 Tex.Gen.Laws 109, 110, repealed by Act of Jan. 1, 1984, ch. 576, § 6, 1983 Tex.Gen.Laws 3729, 3730 (Tex.Rev.Civ. Stat.Ann. article 7425b-7 (Vernon I960)).

Nolana has not created an express trust under any of these provisions. Moreover, under the statute of frauds provision in subdivision F, a trust consisting of real property is invalid unless created by a written instrument signed by the trustor. The term “trustee” appears in conjunction with Ann’s name on the note and deed of trust, but the mere designation of a party as “trustee” does not create a trust. Fred Rizk Const. Co. v. Cousins Mortg. & Equity Investments, 627 S.W.2d 753, 757 (Tex.App.-Houston [1st Dist.] 1981, writ ref’d n.r.e.); Brelsford v. Scheltz, 564 S.W.2d 404, 406 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.); Spiritas v. Robinowitz, 544 S.W.2d 710, 715 (Tex.Civ.App.—Dallas 1976, writ ref’d n.r.e.); Costello v. Hillcrest State Bank of University Park, 380 S.W.2d 780, 782 (Tex.Civ.App.—Dallas 1964, no writ). “Nothing within article 7425b-7 includes a partnership agreement where one of the partners takes title to the partnership property in his name as ‘trustee’.” Spiritas, 544 S.W.2d at 715. There is no written instrument signed by the trustor establishing a trust in this case.

Even if a trust had been validly established under the Texas Trust Act, the record is devoid of any evidence describing Ann Corsi’s duties and responsibilities as trustee. If a trustee is not given affirmative powers and duties, the trust is “passive” or “dry,” and legal title is vested in the beneficiaries, not the named trustee. Moore v. City of Waco, 85 Tex. 206, 20 S.W. 61, 63 (1892); Bohn v. Bohn, 420 S.W.2d 165, 172 (Tex.Civ.App.—Houston [1st Dist.] 1967, writ dism’d). See Zahn v. National Bank of Commerce of Dallas, 328 S.W.2d 783, 791 (Tex.Civ.App.—Dallas 1959, writ ref’d n.r.e.).

We are without proof of the trust or duties; therefore, we cannot hold under the facts of this case that there has been a breach of fiduciary duty under an express trust theory.

Nolana next argues that the evidence is sufficient to establish a resulting trust. A resulting trust is implied in law when someone other than the person in whose name title is taken pays the purchase price, or when an express trust fails. See Cohrs v. Scott, 161 Tex. 111, 338 S.W.2d 127, 130 (1960); Brelsford v. Scheltz, 564 S.W.2d 404, 406 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r. e.); G. Bogert, The Law of Trusts and Trustees § 451 (Rev.2nd ed. 1977). The doctrine of resulting trust is invoked to prevent unjust enrichment, and equitable title will rest with the party furnishing the consideration or trust property when an express trust fails. The trustee of a resulting trust, however, like the trustee of a passive trust, generally is responsible only for conveying the property to the beneficiary or in accordance with his directions. See Restatement (Second) of Trusts, Ch. 12 Resulting Trusts General Principles (1957).

Although the title to the property was in Ann’s name as trustee, she never attempted to claim the entire tract nor attempted to deny the interests of Conine and Hendricks. The resulting trust rationale of preventing unjust enrichment does not apply in this case. She recognized in the letter agreement that each had a one-third interest in the tract, and she has not been unjustly enriched by having the title in her name as trustee. We hold that Nolana is not entitled to money damages from Ann Corsi under a resulting trust theory.

Nolana argues in its second point of error that Ann should be held individually liable. Ann signed a letter without the restriction “as trustee” in which she “acknowledge[d] and agree[d] to be solely responsible and pay the additional $49,000.00 plus interest thereon borrowed from Jefferson Savings and Loan Association on May 6, 1977, and the proceeds of which were used to pay off the original $140,000.00 note described above.” Although the consideration for Ann’s signing the letter agreement is not apparent, it is presumed, as Ann has not raised the lack of consideration. See Tex.Rev.Civ.Stat.Ann. art. 27 (Vernon 1969); Unthank v. Rippstein, 386 S.W.2d 134, 138 (Tex.1964); Cortez v. National Bank of Commerce of Brownsville, 578 S.W.2d 476, 479 (Tex.Civ.App.—Corpus Christi 1979, writ ref’d n.r.e.).

Counsel for Nolana conceded in oral argument that under an individual liability theory, Ann could not be held responsible for the consequential lost profits resulting from foreclosure; therefore, Nola-na is not entitled to lost profits. Corsi, Conine and Hendricks each owned a one-third interest in the property. The property sold for the outstanding indebtedness. Conine and Hendricks’ interests in the property were thus burdened with two-thirds of the additional $49,000 and the interest and penalties thereon for which Corsi was solely liable. Corsi’s interest satisfied the other one-third.

We therefore hold that Nolana is entitled to recover from Ann Corsi two-thirds of $49,000 in addition to two-thirds of the interest and penalties charged on the $49,-000. We reverse the judgment of the court of appeals, and as modified, affirm the judgment of the trial court.

      . We offer no explanation why the parties conducted their business in this manner. We simply present these curious facts, gleaned from a very limited record.

      . Apparently Nolana did not sue Ann in her capacity as independent executrix. Nolana is trying to hold her personally responsible and is not trying to recover from Manny’s estate.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    FIRST ALIEF BANK, Relator, v. The Hon. Frank O. WHITE, Judge, Respondent.
    No. C-3546.
    Supreme Court of Texas.
    Dec. 12, 1984.
    Russell C. Jones, Bellaire, for relator.
    Morris, Tinsley & Snowden, Ronald G. Mitchell, Rokki Ford Roberts, Houston, for respondent.
   PER CURIAM.

This original mandamus proceeding attacks the action of the trial court in (1) allowing a third party to intervene after judgment and (2) modifying its judgment after the expiration of the court’s plenary jurisdiction. We conditionally grant the writ.

Relator, First Alief Bank, filed the underlying action to collect two promissory notes naming as defendants, Krone Construction Company and Gary and Terry Krone. The bank also filed an application for pre-judgment attachment on two tracts of land owned by the Krones. The trial court signed an order for the issuance of a writ of attachment on the two tracts. The bank thereafter filed notice of lis pendens.

The defendants appeared and answered the bank’s petition but took no further action. The bank obtained a summary judgment and judgment nunc pro tunc which awarded recovery on the notes and ordered the attachment liens on the two tracts foreclosed. The defendants neither filed a motion for new trial nor perfected an appeal. The judgment became final on June 2, 1984.

While the suit was pending, the Krones sold the home on one of the tracts attached by the bank to the Hoovers. This sale was completed after the. issuance of the writ of attachment and the filing of the lis pendens notice. After this sale but prior to the entry of judgment, the attorney representing the bank informed the Hoovers of the bank’s action against the Krones. After judgment the attorney notified the Hoovers that the property purchased from the Krones would be sold to satisfy the bank’s prior lien.

In order to block the sale of their property, the Hoovers sought to intervene in the original action on July 26,1984, eighty-four days after Judge White had signed the judgment. The bank moved to dismiss the plea in intervention asserting that the trial court had lost jurisdiction over the cause. A hearing was held at which Judge White overruled the bank’s motion to dismiss and considered the Hoovers’ arguments that their rights to the property were superior to those of the bank. On August 7, 1984, Judge White signed an order setting aside the portion of his previous judgment foreclosing the attachment lien.

In the present mandamus, the bank argues that Judge White lacked authority to entertain the Hoovers’ plea in intervention and lacked jurisdiction to modify his prior judgment. We agree. Under the present facts, Judge White retained plenary power to vacate, set aside, modify or amend the judgment for a period of thirty days after he signed it. Thursby v. Stovall, 647 S.W.2d 953 (Tex.1983); McCormack v. Guillot, 597 S.W.2d 345 (Tex.1980); TEX.R.CIV.P. 329b(d) and (f). Judge White’s plenary power over his judgment expired on June 2,1984, and he thereafter lacked jurisdiction to modify that judgment. Furthermore, a plea in intervention comes too late if filed after judgment and may not be considered unless and until the judgment has been set aside. Comal County Rural High School District No. 705 v. Nelson, 158 Tex. 564, 314 S.W.2d 956 (1958).

Judge White’s order of August 7, 1984, conflicts with our holdings in Thursby v. Stovall, supra and McCormack v. Guillot, supra. Pursuant to TEX.R.CIV.P. 483, we grant the writ of mandamus without hearing oral argument. The writ will issue only if Judge White fails to vacate that order.


text:
    Helen L. COOKSEY, Petitioner, v. Michael SINDER et al., Respondents.
    No. C-3562.
    Supreme Court of Texas.
    Dec. 12, 1984.

      Perrero, Brasch, Friebele & Mardis, Randell W. Friebele, Harlingen, Yzaguirre, Chapa & Rocha, Juan Rocha, Jr., McAllen, for petitioner.
   PER CURIAM.

Helen Cooksey asks this court to render judgment that she be allowed to foreclose on a real property lien. Cooksey sold some property to Michael Sinder and his wife on March 4,1980. The Sinders signed a promissory note and Cooksey executed a warranty deed with vendor’s lien, which among other things provided for a retention of superior title in Cooksey until the note was paid in full. This deed was properly filed in the Hidalgo County deed records prior to any subsequent sales of the subject property.

Two years later, Michael and Peggy Sin-der sold the property by assumption deed to Michael’s parents, Allan and Betty Sin-der, who later sold a portion of the property to Tierra Buena Investment, Inc. Thereafter, Michael and Peggy Sinder defaulted on their note to Cooksey. Cooksey sought judgment on the note and to foreclose the lien on the property owned by the Sinder parents and Tierra Buena. Cooksey obtained summary judgment against Michael and Peggy Sinder for the amount owed on the note, but the trial court rejected her motion for summary judgment against the Sinder parents and Tierra Buena for foreclosure on the lien. The trial court, however, granted Tierra Buena and the Sinder parents their requested summary judgment, denying foreclosure on the property and prohibiting Cooksey from recording or foreclosing the lien against them.

In an unpublished opinion, the court of appeals reversed the order prohibiting foreclosure. It held that while Tierra Buena’s and the Sinder parents’ innocent purchaser defense would bar foreclosure, this was a disputed fact question. Therefore, the court of appeals remanded the case for a trial on the merits. Cooksey asks this court to reverse the appellate court’s order of remand and to render judgment allowing her to foreclose on her lien.

In order for Cooksey to be entitled to foreclosure as a matter of law, she must negate at least one of the three necessary elements of the innocent purchaser defense. She must establish that Tierra Buena and the Sinder parents did not buy the property in good faith, or that they did not purchase the land for value, or that they did have legal notice of her lien. See Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 347 (Comm’n App.1936, opinion adopted). Cooksey filed the warranty deed with vendor’s lien approximately two weeks after its execution. A purchaser is charged with knowledge of the provisions and contents of recorded instruments. Id. at 348. Purchasers are also charged with notice of the terms of deeds which form an essential link in their chain of ownership. Westland Oil Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex.1983). Because Cook-sey’s deed was properly recorded and within the chain of title of the Sinder parents and Tierra Buena, they had legal notice of the lien and thus took the property subject to that lien. This defeats their innocent purchaser defense. Cooksey is entitled to judgment and foreclosure on the property in the possession of Tierra Buena and the Sinder parents.

Pursuant to Tex.R.Civ.P. 483, we grant the application for writ of error. Without hearing oral argument, we reverse the judgment of the court of appeals and remand this cause to the trial court for a rendition of judgment in accordance with this opinion and Tex.R.Civ.P. 309.


author: WALLACE, Justice.

text:
    LAS VEGAS PECAN & CATTLE COMPANY, INC., Petitioners, v. ZAVALA COUNTY, Texas et al., Respondents.
    No. C-3099.
    Supreme Court of Texas.
    Dec. 19, 1984.

      Atlas & Hall, Thomas 0. Matlock, Jr. and Lisa Powell, McAllen, for petitioners.
    Pablo Avila, Crystal City, for respondents.
   WALLACE, Justice.

This is a suit by a landowner, Las Vegas Pecan & Cattle Company, Inc., (Las Vegas) to enjoin the County Commissioners and the Sheriff of Zavala County, Texas, from interfering with the landowner’s attempt to close a road running through its property. The County’s answer alleged the road was public property and that the County owned it. The trial court rendered judgment denying the injunction and holding that the County was vested with legal and equitable title to the road. The court of appeals affirmed the judgment of the trial court. 669 S.W.2d 808. We reverse the judgment of the court of appeals and remand the cause to the trial court with instructions to modify its judgment.

Las Vegas does not complain of the denial of the injunctive relief. Rather, it primarily complains that the court of appeals erred in holding that the County has legal as well as equitable title to the road. However, the County conceded in oral argument that the court of appeals had erred in this respect. Las Vegas also complains that: (1) the trial court failed to make findings of fact and conclusions of law after being timely requested to do so; (2) TEX.REV. CIV.STAT.ANN. art. 6812h prohibits the trial court from finding an implied dedication of the road to the public; and (3) the judgment did not contain a legal description of the road in question, although the record discloses a metes and bounds description of the easement.

We will first dispose of Las Vegas’ contention that there can be no implied findings of fact to support the trial court’s judgment. Las Vegas bases this argument on the trial court’s failure to make findings of fact and conclusions of law when timely requested to do so. The trial court’s judgment was rendered on November 5, 1982. Las Vegas filed a motion .for new trial on December 1, 1982 and a request for findings of fact and conclusions of law on December 10, 1982. The motion for new trial was not acted upon by the trial court and was thus overruled by operation of law on January 19, 1983. On that same date Las Vegas filed with the trial court a reminder that it had not filed findings of fact and conclusions of law as requested.

Rule 296, in effect at the time of trial, provided in pertinent part:

In any case tried in the district or county court without a jury, the judge shall, at the request of either party, state in writing his findings of fact and conclusions of law. Such request shall be filed within ten days after the final judgment or order overruling the motion for new trial is signed or the motion for new trial is overruled by operation of law.

TEX.R.CIV.P. 296, effective January 1, 1981, (amended December 5, 1983, effective April 1, 1984). Rule 297 gave the trial court 30 days within which to file the findings of fact and conclusions of law. If the trial court failed to do so, Las Vegas was required to file with the court a reminder of such failure within five days. Without such timely reminder, Las Vegas waived its complaint of the failure on appeal. The reminder was not filed within 35 days of the filing of the request for findings of fact and conclusions of law, but rather was filed 39 days after the filing of the request. Therefore, according to the terms of Rules 296 and 297, Las Vegas has no complaint on appeal that the trial court failed to file the findings of fact and conclusions of law.

Las Vegas’ contention that we may not imply a fact finding of the trial court sufficient to sustain its judgment must fail for another reason. Failure of the trial court to prepare and file findings of fact or conclusions of law under Rule 296 does not require a reversal of the trial court’s judgment if the record before the appellate court affirmatively shows the complaining party suffered no injury. Wagner v. Riske, 142 Tex. 337, 178 S.W.2d 117 (1944). The uncontroverted evidence discussed below shows the basis for the trial court’s judgment. We find Las Vegas suffered no harm as a result of the failure of the trial judge to file findings of fact.

Las Vegas further contends that because the trial court found legal title vested in the County, as opposed to merely an easement, the court tried the case on an incorrect theory of law. It further contends that when a case is tried on an incorrect theory of law, an appellate court may not imply fact findings of the trial court to support the judgment. Wilson v. O’Connor, 555 S.W.2d 776, 781 (Tex.Civ.App.—Dallas 1977, writ dism’d).

Both parties agreed in the trial court that the County was proceeding on a theory of implied dedication of the road to public use. In addressing the trial court, Las Vegas’ attorney stated, “The theory of implied dedication, which is what the County is proceeding under here, ....” The County’s attorney, in arguing a point to the court during the trial stated, “It is the same identical theory of implied dedication to the County that we are asserting this claim....” In view of these arguments to the trial court we must reject Las Vegas’ contention that the trial court tried the case on an incorrect theory of law. We find that the trial court tried the case on the correct theory of law and merely erred in providing in the judgment that legal title, as well as equitable title, was vested in the County. Therefore, we are at liberty to imply fact findings of the trial court which will sustain the judgment, if the judgment is supported by evidence in the record.

We also reject Las Vegas’ contention that Article 6812h enacted by the 68th Legislature, effective August 31, 1981, prohibits an implied dedication to the County in this case. The evidence before the trial court showed in detail that the County had acquired an implied dedication of the road in question prior to the effective date of the statute. Article 6812h contains no provision which would make it retroactive and, without such a provision, the statute can be given only prospective application. Zavala County established an easement resulting from an implied dedication of public use of the road in question prior to the effective date of the statute and the statute does not divest the County of that easement.

It remains for us to determine if there was an implied dedication of the road. The evidence presented at trial shows that Zavala County proved that the road in question was a public road; that is, that there was an implied dedication of the road to public use. The essential elements of implied dedication are: (1) the acts of the landowner induced the belief that the landowner intended to dedicate the road to public use; (2) he was competent to do so; (3) the public relied on these acts and will be served by the dedication; and, (4) there was an offer and acceptance of the dedication. O’Connor v. Gragg, 324 S.W.2d 294 (Tex.Civ.App.—Eastland 1959) reformed 161 Tex. 273, 339 S.W.2d 878 (1960).

The parties called a total of 12 witnesses, two of whom were called by Las Vegas and ten of whom were called by the County. Each witness testified that the road in question had been used by the public generally for at least 15 years prior to 1979, and that the County maintained the road for that period of time. One witness testified that he had used the road continuously since 1911. Another witness testified that he had used the road since the early 1930’s. Each witness testified that, in addition to his personal use, the public generally had used the road. Further, to each witness’ knowledge, no one had ever asked permission, or been denied permission, of the adjoining landowners to use the road. The uncontroverted evidence is that for over 30 years there has been continuous use of the road by the public generally. It was used as a mail route as well as a school bus route, and the County maintained the road by using County employees and equipment.

Additionally, the road was known as Ritchie Road because the surrounding land was owned by the Ritchie family from 1939 until 1979, when it was sold to Las Vegas. Edward Wilson Ritchie, Jr., one of the owners who sold to Las Vegas, testified that the road was open and used by the general public during the 30 years that he worked the land. He further testified that the road was maintained by the County during those 30 years. On cross examination by Las Vegas’ attorney, Mr. Ritchie testified, “I didn’t know we did not have title to it.” He further testified that he did not consider the road itself to be public property. Considered in the context of the hearing, it is apparent that Mr. Ritchie was testifying that he considered the road to be a public road, but that the family claimed title to the remainder. We find this is consistent with an acknowledgement that there was an implied dedication of an easement for public road purposes.

In light of the above, we hold that there was no error in finding an equitable easement to the road in Zavala County. We further hold that the trial court and the court of appeals erred in finding legal title to the road in Zavala County.

Therefore, we reverse the judgment of the court of appeals and remand the cause to the trial court with instructions to reform its judgment to reflect an implied dedication of the road for public use and an equitable easement to the road vesting in Zavala County. We further instruct the trial court to describe by metes and bounds the easement held by the County.


author: KILGARLIN, Justice.

text:
    SHELL OIL COMPANY et al., Petitioners, v. Nonie Angeline CHAPMAN, Ind. and as Executrix, Respondent.
    No. C-3147.
    Supreme Court of Texas.
    Dec. 19, 1984.

      Evans, Moses & Barkley, Richard N. Evans, Beaumont, Burt Ballanfant, Houston, for petitioners.
    George Bishop, Douglas R. Drucker, Houston, for respondent.
   KILGARLIN, Justice.

We granted Shell Oil Company’s application for writ of error to decide whether S & R Oil Company should be jointly and severally liable with Shell for damages arising out of a jury finding of negligence against both of them. We likewise granted S & R Oil Company’s application to determine if a separate finding of damages under a deceptive trade practice theory constituted double recovery to the plaintiff, Nonie Angeline Chapman.

Mrs. Chapman had originally sued for damages to diesel trucks which she owned jointly with her deceased husband, Bobby Chapman, as a result of using.lubricating oil manufactured by Shell and distributed by S & R. The trial court judgment was favorable to Mrs. Chapman. The court of appeals, in an unpublished opinion, ordered a small remittitur, and after Mrs. Chapman complied, the trial court judgment was affirmed. We modify that judgment to provide for joint and several liability, and, as modified, we affirm the judgments of the courts below for Mrs. Chapman. We sever and remand to the trial court indemnity and contribution issues as between Shell and S & R.

The facts are as follows: Shell manufactured a certain amount of lubricating oil, packaged it in five gallon cans, and labeled it “Shell Rimula 30.” Thereafter, Shell discovered that instead of being 30 weight oil, part of the packaged oil was 10 weight. Shell sold the oil to S & R in the original 30 weight packages. S & R knew of the mislabeling and intended to refine the oil back into genuine 30 weight oil. However, S & R sold the oil, still packaged as “Shell Rimula 30.” Bobby Chapman, not knowing of the mislabeling, subsequently bought the oil, used it on his trucks, and the trucks eventually developed mechanical problems.

After Chapman’s death, his wife brought suit for negligence, products liability, breach of warranty, and violation of the Deceptive Trade Practice Act. Summary judgment was granted Shell on the DTPA cause. A jury found S & R guilty of certain deceptive trade practices, found that it had breached warranties, both express and implied, and that such DTPA violations and breaches were a producing cause of plaintiff’s actual damages. The first of two actual damage issues answered by the jury was conditioned upon affirmative replies to the DTPA and warranty theories. The jury answered a second damage issue which was conditioned upon findings of negligence and proximate cause. The jury additionally found exemplary damages against both Shell and S & R and, finally, made an award of attorney fees.

The trial court trebled the DTPA damages against S & R and Mrs. Chapman waived her recovery of exemplary damages as to S & R. The trial court judgment assessed all of the damages for negligence against Shell, with no provision for joint and several liability. The trial court judgment for Mrs. Chapman against S & R was for $99,300 ($28,100 trebled = $84,300 + $15,000 attorney fees). The trial court judgment for Mrs. Chapman against Shel] was $43,100 ($28,100 actual damages + $15,000 punitive damages). The court of appeals found there to be insufficient evidence to support $1,600 lost profits findings against both defendants; Mrs. Chapman filed a remittitur as to these amounts; and, the judgment of the court of appeals, after the reduction, affirmed the trial court judgment.

During oral argument before this court, Mrs. Chapman conceded that the trial court had erred in failing to make the defendants jointly and severally liable for the damages award for negligence. The concession was proper, as the trial court judgment was erroneous in not allowing contribution between joint tortfeasors. Tex.Rev.Civ.Stat.Ann. art. 2212.

S & R’s points of error may be summarized as a complaint that the award of damages for deceptive trade practices was a double recovery of the award of damages for negligent acts. While it is true that the answer by the jury was the same for both damage issues, both damage issues were predicated upon affirmative answers to two sets of inquiries, one as to DTPA violations and the other as to negligence. In any event, we do not feel compelled to pass upon S & R’s points of error in regards to the award of damages because they have failed to preserve error, if any. No objections were made to the charge nor did either S & R or Shell request any special issues to fill in gaps now alleged to have existed in the jury charge.

The submission of damage issues conditioned on liability findings, although erroneous, produced answers clearly indicating the jury’s intent to find separate damages for the deceptive trade violations and for negligence. As to the DTPA, the jury found S & R guilty of certain proscribed conduct; found that conduct to have been a producing cause of damages to Mrs. Chapman; and, found an amount of damages. While the first damage issue did not limit the jury’s answer to damages for deceptive trade practice violations solely, as neither S & R nor Shell objected, the trial court judgment should be properly upheld even if there was one missing link in the chain of questions. Tex.R.Civ.P. 279.

Finally, S & R complains that Mrs. Chapman is not entitled to recover under the Deceptive Trade Practice Act because damages do not survive to the estate of one victimized by the deceptive acts. In support of this argument, it relies upon First National Bank of Kerrville v. Hackworth, 673 S.W.2d 218 (Tex.App.—San Antonio 1984, no writ). We do not pass upon this point, and reserve to another day discussion of survival of DTPA damages. The judgment clearly indicates that the damages recovered were part of the Chapmans’ community estate. The evidence shows that the trucks which were damaged by use of the mislabeled oil were the Chap-mans’ community property.

We modify the court of appeals’ judgment to provide that in addition to the other damages awarded, Nonie Chapman shall have and recover from Shell Oil Company and S & R Oil Company, jointly and severally, the sum of $26,500, the same being the amount awarded for the negligent conduct of both defendants, less the remittitur made in the court of appeals. As modified, the judgment of the court of appeals is affirmed as to Nonie Chapman. We sever and remand to the trial court the contribution and indemnity issues between Shell Oil Company and S & R Oil Company.


text:
    Jerry SHULTS, Petitioner, v. The STATE of Texas, Respondent.
    No. C-3240.
    Supreme Court of Texas.
    Dec. 19, 1984.
    Mike Aranson and Frank Shor, Dallas, for petitioner.
    Henry Wade, Dist. Atty., Tom Streeter and Bill Booth, Asst. Dist. Attys., Dallas, for respondent.
   PER CURIAM.

This is an appeal from a judgment ordering forfeiture of certain items of personal property as “drug paraphernalia” pursuant to the civil forfeiture provision of the Controlled Substances Act, Tex.Rev.Civ.Stat. Ann. art. 4476-15 (Vernon Supp.1984). The State made four separate seizures of property from a shop known as Gas Pipe, Inc. located in Dallas. Jerry and Lori Shults were the sole shareholders in Gas Pipe, Inc. The State filed four civil forefeiture petitions naming Jerry Shults and Gas Pipe, Inc. as respondents. The trial court rendered judgment, ordering the seized property forfeited to the State.

Although Shults asserted a property interest in the seized property and was named as a respondent in the forfeiture petition, the court of appeals held that Gas Pipe, Inc. was the owner of the forfeited property. Therefore, the court held that Shults had no standing to appeal the forfeiture order. Because Jerry Shults executed the appeal bond in his own name, and Gas Pipe, Inc. was not named in the appeal bond, the court of appeals held that Gas Pipe, Inc. failed to perfect appeal. Therefore, the court of appeals affirmed the trial court and overruled Shults’ motion to amend or supplement the cost bond on appeal.

It is well settled that under Rule 363a appeal bonds are to be liberally construed. Owen v. Brown, 447 S.W.2d 883 (Tex.1969); United Ass’n of Journeymen & Apprentices of Plumbing & Pipe Fitting Indus, v. Borden, 160 Tex. 203, 328 S.W.2d 739 (1959); Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141 (1943). In Woods Exploration & Prod. Co. v. Arkla Equip. Co., 528 S.W.2d 568 (Tex.1975), this court allowed a clerk’s certificate in lieu of an appeal bond to be amended for the benefit of parties, such as Gas Pipe, Inc., that were not named in the original certificate. In Woods, we further stated that courts “are admonished not to affirm or reverse a judgment or dismiss an appeal or writ of error for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend the same.” Id. at 570. We hold that the court of appeals erred in affirming the trial court and overruling Shults’ motion to amend the cost bond on appeal.

Pursuant to Tex.R.Civ.P. 483, we grant the writ of error and, without hearing oral argument, reverse the judgment of the court of appeals and direct the court to grant leave to file an amended appeal bond. Upon the filing thereof, the court will dispose of the case on the merits.


author: CAMPBELL, Justice. ROBERTSON, Justice, GONZALEZ, Justice,

text:
    Ex parte Don GRIFFIN.
    No. C-3358.
    Supreme Court of Texas.
    Dec. 19, 1984.
    Latham & Moss, Bill Mills Latham, Corpus Christi, for relator.
    Gary, Thomasson, Hall & Marks, Shirley Selz, Corpus Christi, Larry R. Margolies, Dallas, for respondent.
   CAMPBELL, Justice.

This is a habeas corpus proceeding. The trial court found Relator, Don Griffin, in contempt of court for violating a temporary injunction. He was ordered to jail for 30 days and fined $104,000, $500 for each of 208 separate violations of the temporary injunction.

We hold the large penalties ordered in this case make it a serious offense, entitling Griffin to a jury trial. Griffin was not afforded a right to jury trial and did not waive that right. Therefore, he is discharged from custody.

The temporary injunction prohibited Griffin from:

(1) selling, offering for sale, participating in or advising about a sale, or soliciting the sale of chemical specialties, germicides, cleaning chemicals, degreasers, insecticides, maintenance chemicals, specialty coatings, chemicals for turf maintenance, water treatment, air and water pollution, and related products similar to NCH Corporation’s products to any account identified on the attached sealed exhibit “A” within the counties San Pa-tricio, Nueces, Jim Wells, Brooks, and Duval; and (2) from diverting, taking away or attempting to take away the accounts identified in the sealed attached exhibit “A” within the counties of San Patricio, Nueces, Jim Wells, Brooks, or Duval.

The temporary injunction provided that it would be in effect for 24 months following July 29,1981, or until the signing of a final judgment after a trial upon the merits. Attached to the temporary injunction judgment was Exhibit A, a seven-page listing of NCH customers and their mailing addresses. Griffin appealed from the temporary injunction, and the Court of Appeals affirmed the judgment of the trial court in an unpublished opinion.

In its motion for contempt, NCH Corporation complained that Griffin violated the temporary injunction “on multiple occasions” by selling chemical products to 25 named customers listed in the attachment to the temporary injunction during its term. It sought punishment “by a fine of $500 for each violation” and by confinement in jail for a period not to exceed six months.

Griffin asserts he should be released because: (1) he was denied a trial by jury; (2) the temporary injunction is void under Rule 683; and (3) he did not have sufficient notice of the charges against him. We agree with the first contention and grant the writ of habeas corpus. Therefore, we do not address the other two issues.

The Sixth Amendment to the United States Constitution guarantees the right to jury trials for serious offenses, but not petty offenses. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975). We concluded in Ex Parte Werblud, 536 S.W.2d 542 (Tex.1976), that two separate $500 fines in a case of constructive criminal contempt did not take the case out of the category of petty offenses.

The United States Supreme Court in Muniz v. Hoffman, supra 422 U.S. at 476, 95 S.Ct. at 2190, declined to hold that a jury is required where any fine greater than $500 is contemplated. Instead, the Supreme Court held it would look at the individual defendant, the seriousness of the risk and the extent of possible deprivation. Other courts have held a right to jury trial exists where potential fines exceed $500. U.S. v. Hamdan, 552 F.2d 276 (9th Cir. 1977) [$1,000 fine]; Black Police Officers Assoc. v. Richmond, 548 F.2d 123 (4th Cir. 1977) [$1,000 fine]; Douglass v. First Nat. Realty Corp., 543 F.2d 894 (D.C.Cir.1976) [$5,000 fine].

We hold that a contempt action in which contemnor is fined $104,000 and ordered to jail for 30 days is a serious offense. Therefore, Griffin was entitled to a jury trial.

NCH Corporation contends we must presume Griffin waived his right to a jury' trial because the record does not establish that he demanded a jury. However, in a contempt hearing for a serious offense, waiver of the right to jury trial cannot be presumed from a silent record. See Samudio v. State, 648 S.W.2d 312 (Tex.Crim.App.), cert denied, — U.S. -, 103 S.Ct. 3113, 77 L.Ed.2d 1368 (1983).

The relator is discharged from custody.

ROBERTSON, J., concurs.

GONZALEZ, J., dissents, joined by SPEARS, J.

ROBERTSON, Justice,

concurring.

I reluctantly concur in the result reached by this Court. However, I am of the opinion that this case presents another example of trial by ambush. Griffin was represented by counsel of his own choosing. He remained silent throughout the contempt proceedings and never requested a jury, nor has he asserted any disputed issues of fact to be decided by a jury. Now in this Court, he complains for the first time that he was denied a fundamental right because there is no record that he formally waived a jury trial.

Contempt is a unique, quasi-criminal sanction. Procedural safeguards for contempt do not derive from the Sixth Amendment to the United States Constitution, but from traditional notions of due process. Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960). Therefore, the full panoply of Sixth Amendment rights available to persons in ordinary criminal proceedings should not apply in contempt proceedings. I refer to my previous dissent in Ex parte Johnson, 654 S.W.2d 415, 422-423 (Tex.1983).

GONZALEZ, Justice,

dissenting.

I respectfully dissent. I would deny the writ of habeas corpus.

Griffin claims, and the court holds, that he was denied his constitutional right to a trial by jury. Griffin must show that the lack of a jury trial was fundamental error, since he did not request one prior to trial.

Contempt proceedings are normally considered to be either civil or criminal in character. Ex Parte Werblud, 536 S.W.2d 542, 545 (Tex.1976). Proceedings which are punitive in nature, punishing past infractions which affront the dignity and authority of the court, are criminal contempt proceedings. Unquestionably, the case at bar arose from such a proceeding. In criminal contempt proceedings, however, the right to a jury trial is not absolute. It is conditioned upon a characterization of the punishment imposed as being for either a “serious” or a “petty” offense. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975); Werblud, 536 S.W.2d at 547.

Muniz involved a labor union and an individual that had violated the orders of a court which was seeking to control picketing activities during a labor dispute. Prior to criminal contempt hearings these two parties requested that they be tried before a jury. This request was denied by the trial court. A probated sentence was subsequently imposed on the individual, and a $10,000 fine was levied against the union. The Muniz Court addressed the right to a jury trial in the contempt proceedings, and drew a distinction between the imposition of fines and imprisonment.

With punishment by imprisonment, Mun-iz has established, and this court has approved, a “bright-line” standard by which a court may determine if the contemnor has committed a serious offense. Imprisonment for more than six months establishes that the offense is a serious one and entitles the contemnor to a jury trial as a matter of constitutional right. Muniz, 422 U.S. at 475-6, 95 S.Ct. at 2190; Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). Werblud, 536 S.W.2d at 547. Moreover, the right to a jury trial in contempt proceedings is dependent solely on the actual punishment imposed, rather than the punishment possible. Taylor, 418 U.S. at 496, 94 S.Ct. at 2702; Werblud, 536 S.W.2d at 547.

The delineation of “serious” and “petty” offenses becomes much more difficult when a fine is imposed against a con-temnor. The courts in Muniz and in Wer-blud declined to establish a “bright line” rule to aid a trial court in its determination of the distinction between the two types of offenses when a fine is involved. Some subsequent eases indicate that a $500 fine assessed against an individual is the dividing line between serious and petty offenses. See United States v. McAlister, 630 F.2d 772 (10th Cir.1980); Girard v. Goins, 575 F.2d 160 (8th Cir.1978); United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977). Douglass v. First Nat’l Realty Corp., 543 F.2d 894 (D.C.Cir.1976). These opinions seemingly draw a distinction between those cases in which a fine is assessed against an individual and those involving other legal entities. See McAlister, 630 F.2d at 774.

Muniz, on the other hand, does not offer the clear guidance which these courts would provide. In considering a statute which authorized the same punishment for contempt as Tex.Rev.Civ.Stat.Ann. art. 1911a, § 2, the court stated that

... it is one thing to hold that deprivation of an individual’s liberty beyond a six-month term should not be imposed without the protection of a jury trial, but it is quite another to suggest that, regardless of the circumstances, a jury is required where any fine greater than $500 is contemplated.

Muniz, 422 U.S. at 477, 95 S.Ct. at 2191. This distinction between punishment by fine and punishment by imprisonment led the court to state that the two are “intrinsically different.” Id.

Hamdan and its progeny assert that they properly draw a distinction between individual contemnors and other entities based on the facts of Muniz ($10,000 fine assessed against labor union with 13,000 members). See Hamdan, 552 F.2d at 279. Muniz does not suggest such a distinction. The Muniz court stated that the argument that a $10,000 fine posed a “serious risk” to a large union was “untenable.” Muniz 422 U.S. at 477, 95 S.Ct. at 2191. Indeed, Muniz seems to require an inquiry by the court into the financial ability of the con-temnor to pay the imposed fine before the court is bound to declare an offense a “serious” one entitling the contemnor to the constitutional right to trial by jury. Muniz, 422 U.S. at 476-8, 95 S.Ct. at 2190-91. In Werblud, this court acknowledged Muniz and recognized that a $1,000 total fine did not necessitate a trial by jury, as it remained in the category of petty offenses. Werblud, 536 S.W.2d 542.

In the instant case the trial court imposed a fine of $104,000 against Griffin: $500 for each of the 208 violations of the injunctive order against him. The court fails to note that Griffin’s gross revenues from the prohibited sales totaled over $96,-000, representing a profit of over $67,000. When balanced against the amounts Griffin would not have realized had he not violated the clear order of the trial court, the $104,-000 fine is reduced to a net fine of just $8,000. The punitive effect of the fine and the ability of the contemnor to pay may be considered in light of the revenue raised through a violation of the order of the court. U.S. v. Troxler Hosiery Co., Inc., 681 F.2d 934 (4th Cir.1982) (gross revenue —$60,000; profit — $15,000; fine — $80,000 plus costs); Musidor, B. V. v. Great American Screen, 658 F.2d 60 (2nd Cir.1981), cert. denied, 455 U.S. 944, 102 S.Ct. 1440, 71 L.Ed.2d 656 (1982) (2 sales in violation of injunction — gross revenue of $60,000-75,-000 at one of the sales; fine — $10,000 for each violation).

In light of the net fine imposed, it is doubtful that Griffin was absolutely entitled to a jury trial as a constitutional right. It is not clear that such a right even exists in civil proceedings to assess criminal contempt punishments through fines. The question was expressly left open by the Supreme Court in Muniz in such a way as to indicate that the existence of that right is as open to question as the extent of that right. See Muniz, 422 U.S. at 476, 95 S.Ct. at 2190.

Griffin had been ordered not to sell to these companies; he knew that if he violated this order he would be held accountable for his actions; and still, he wilfully affronted the dignity and authority of the court by engaging in prohibited sales.

Since Griffin did not demand a jury trial, this court has had to resort to the questionable doctrine of “fundamental error” to reverse the judgment. This court assumes that the trial court would have denied Griffin a jury trial had he requested one. Griffin has had a fair and impartial hearing. I would therefore remand him to the Sheriff of San Patricio County.

SPEARS, J., joins in this dissenting opinion.

      . All citations to rules refer to the Texas Rules of Civil Procedure.

      . Relator was released on bond pending this appeal.


author: MILLER, Judge. CLINTON, Judge.

text:
    Stephen Peter MORIN, Appellant, v. The STATE of Texas, Appellee.
    No. 69028.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 14, 1983.
    Rehearing Denied Jan. 9, 1985.

      Peter Torres, Jr., John Keith Alaniz, San Antonio, for appellant.
    Sam D. Millsap, Jr., Dist. Atty. & Susan D. Reed, Steve Vacek and Alan E. Battag-lia, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty. and Alfred Walker, Asst. State’s Atty., Austin, for the State.
   OPINION

MILLER, Judge.

Appellant was indicted in Bexar County for the offense of capital murder. He was charged with the murder of Carrie Scott while in the course of committing robbery. After appellant’s request for a change of venue was granted, the cause was transferred to Jefferson County. Appellant pled guilty. The trial judge instructed the jury to return a verdict of guilty. After the jury complied, evidence was heard at the punishment state of trial. The jury answered the special issued affirmatively and appellant was sentenced to death. Appellant appeals on nine grounds of error. The sufficiency of the evidence is not challenged.

First, appellant contends that the trial court erred in overruling his motion to dismiss the indictment because: the grand jury failed to inquire into all offenses liable to indictment, acting instead as a rubber-stamp for the District Attorney’s office; appellant was denied an opportunity to appear before the grand jury; the indictment is vague and contradictory; and the indictment calls for a punishment that is contrary to the Eighth and Fourteenth Amendments to the United States Constitution because the punishment mandated is cruel and unusual.

Initially, appellant’s ground of error is multifarious and presents nothing for review. Art. 40.09, Y.A.C.C.P.. Bodiford v. State, 630 S.W.2d 847 (Tex.App.1982); Wilson v. State, 581 S.W.2d 661 (Tex.Cr.App.1979); Ely v. State, 582 S.W.2d 416 (Tex.Cr.App.1979); Wells v. State, 576 S.W.2d 857 (Tex.Cr.App.1979). Given the gravity of the sentence, however, we shall deal with each of appellant’s claims under his first ground of error.

Appellant’s claim that the grand jury failed to inquire into all offenses liable but acted only as “a rubberstamp for the District Attorney’s office” is without merit since the allegation is unsubstantiated by any reference to a transcription of the grand jury proceedings. Moreover, no evidence was offered at trial on the issue. We cannot accept as fact allegations in briefs or motions that are not supported by the record. Art. 40.09, V.A.C.C.P.; Hawkins v. State, 628 S.W.2d 71 (Tex.Cr.App.1982), citing Beck v. State, 573 S.W.2d 786 (Tex.Cr.App.1978).

Appellant also complains that the court improperly denied him an opportunity to appear before the grand jury. An accused does not have the constitutional right to appear in person or by counsel before the grand jury. Moczygemba v. State, 532 S.W.2d 636, 638 (Tex.Cr.App.1976), and cases cited therein. Since appellant has no right to appear before the grand jury, the trial judge did not err in denying his request.

Next, appellant challenges the indictment as being vague and contradictory. He contends that the indictment is duplicitous since it alleges that the murder occurred while appellant was “committing and attempting to commit robbery.” Faced with a similar indictment, we have previously resolved this issue adverse to appellant’s claim. Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.1977), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977). Appellant also attacks the indictment because it fails to allege all of the elements of robbery. In Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977), we held that under the new Penal Code, an indictment charging one offense during the commission of another crime need not allege the elements of the latter offense. Id., 542 S.W.2d at 658, and cases cited therein.

Appellant’s last attack on the indictment under his first ground of error is directed at the death penalty: he contends that the death penalty is cruel and unusual and is, therefore, contrary to the Eighth and Fourteenth Amendments to the United States Constitution. We rejected this contention in Burns, supra, and Livingston, supra, 542 S.W.2d at 662. The United States Supreme Court also rejected this contention in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), reh. denied, 429 U.S. 875, 97 S.Ct. 197, 50 L.Ed.2d 158 (1976). Accordingly, we overrule appellant’s first ground of error.

In his second and third grounds of error, appellant alleges that the trial court erred in overruling his Motion to Suppress and in admitting the identification testimony of two witnesses because their testimony was tainted and based upon suggestive identification procedures, i.e., appellant’s picture had been seen on television by the witnesses prior to identification. Appellant’s claim is without merit for two reasons. First, appellant waived any error committed regarding the identification testimony of the two witnesses. A plea of guilty, voluntarily and understandingly made, waives all nonjurisdictional defects, including deprivations of federal constitutional due process. Wheeler v. State, 628 S.W.2d 800 (Tex.Cr.App.1982); Velasquez v. State, 608 S.W.2d 674 (Tex.Cr.App.1980); McKelvey v. State, 570 S.W.2d 951 (Tex.Cr.App.1978); Runo v. State, 556 S.W.2d 808 (Tex.Cr.App.1977); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977); Helms v. State, 484 S.W.2d 925 (Tex.Cr.App.1972). Moreover, error in admission of identification evidence is not jurisdictional in nature. Ex Parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982), cert. denied 32 Cr.L.R. 4098. Since appellant entered a plea of guilty, and the plea was made voluntarily and understandingly, any error committed by the trial court regarding identification was waived.

Second, in addition to the identification testimony given by the two witnesses challenged by appellant, a third witness also identified appellant and placed him at the scene of the offense. Her testimony was not challenged. Under our holding in Williams v. State, 477 S.W.2d 885 (Tex.Cr.App.1972), any error committed by admission of the identification evidence elicited from the two witnesses, objected to by appellant, was rendered harmless when the third witness identified appellant without objection. Accordingly, we overrule appellant's second and third grounds of error.

In his fourth and fifth grounds of error, appellant contends that the trial court erred in directing and instructing the jury to return a verdict of guilty, and in denying appellant’s requested instructions to the jury at the guilt stage of trial. Appellant claims that a directed verdict is prohibited in capital cases for three reasons. First, Art. 36.14, V.A.C.C.P., requires that “in each felony case ... the judge shall before the argument begins, deliver to the jury, except in pleas of guilty where a jury has been waived, a written charge distinctly setting forth the law applicable to the ease; not expressing any opinion as to the weight of the evidence ....” Since a jury cannot be waived in a capital case under Art. 1.13, V.A.C.C.P., the trial judge, according to appellant, commits fundamental error if he refuses to instruct the jury on the law and directs the jury to find the defendant guilty. Second, appellant contends that the trial court deprived appellant of a trial by jury because the court’s instruction amounted to a jury waiver. Third, appellant contends that there is no procedure providing for the direction of a guilty verdict in capital cases under Texas laws.

Appellant’s initial contention that since a jury cannot be waived in a capital case, Art. 36.14, V.A.C.C.P., requires that the judge instruct the jury on the law overlooks the fact that, in the instant case, the judge did instruct the jury on the law when he told them to return a verdict of guilt. The charge read to the jury indicated that appellant had pled guilty to the charge, that appellant was mentally competent, that the plea had been made freely and voluntarily, and that the court had received the plea. The charge also contained the statement “You are bound to receive the law from the Court which is herein given to you and be governed thereby.” The record, therefore, shows compliance with Art. 36.14 in that the jury was given instruction on the law, applicable to the case, without comment on the weight of the evidence. Fairfield v. State, 610 S.W.2d 771, 780 (Tex.Cr.App.1981), and cases cited therein.

Appellant’s claims that the judge’s instructing action in a verdict deprived appellant of trial by jury and that instructed verdicts are not provided for in capital cases are also without merit. In Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App.1980), cert. denied 452 U.S. 931, 101 S.Ct. 3067, 69 L.Ed.2d 431, reh. denied 453 U.S. 923, 101 S.Ct. 3160, 69 L.Ed.2d 1005 (1981), the defendant pled guilty to the offense of capital murder, the trial judge directed a verdict of guilt, and the jury subsequently assessed punishment at death. We noted no fundamental error in directing the verdict of guilt in the case, nor do we find such error now. A directed verdict, therefore, is permissible in capital cases where the defendant pleads guilty, and the plea is properly accepted by the court. Furthermore, the defendant is not deprived of a trial by jury when a verdict is directed pursuant to a guilty plea since the jury receives evidence at the punishment stage and must determine whether the defendant is to receive life imprisonment or the death penalty. Accordingly, appellant’s fourth and fifth grounds of error are overruled.

In his sixth ground of error, appellant contends that the trial court erred in permitting the introduction into evidence of extraneous offenses involving the killing of Janna Bruce, the attempted killing of another person, and an assault on a third person, where appellant had not been convicted of any of these offenses. Appellant claims that the accused in a capital murder case is treated differently than others accused of non-capital offenses since Art. 37.-07, V.A.C.C.P., permits the State in capital cases to prove offenses not resulting in final convictions. Such varied treatment, according to appellant, is violative of equal protection guarantees provided under both the State and Federal Constitutions.

In Williams v. State, 622 S.W.2d 116 (Tex.Cr.App.1981), cert. denied 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982), we held that absent a showing of unfair surprise, proof of an unadjudicated, extraneous offense at the sentencing stage of a trial on a capital offense is admissible and does not deny a defendant due process and equal protection under the law. Since appellant has made no claim of unfair surprise, his sixth ground of error is overruled.

In his seventh ground of error, appellant contends that the trial court erred in admitting into evidence the photographs of Janna Bruce in that such photographs were prejudicial and inflammatory and served no purpose except to inflame the minds of the jurors thus depriving appellant of a fair trial.

As a general rule, if a verbal description of an item portrayed in a photograph would be admissible, then so would the photograph which reflects the verbal testimony. Kelly v. State, 621 S.W.2d 176 (Tex.Cr.App.1981); Heckert v. State, 612 S.W.2d 549 (Tex.Cr.App.1981); Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979); Harrington v. State, 547 S.W.2d 621 (Tex.Cr.App.1977); Martin v. State, 475 S.W.2d 265 (Tex.Cr.App.1972). Only where the probative value of the photograph is very slight and the inflammatory aspects very great will it be an abuse of discretion to admit the photograph. Kelly, supra; Harrington, supra; Martin, supra.

In the case at bar, evidence relating to the death of Bruce was admissible during the punishment stage of the trial. See discussion, supra. Moreover, the police officer who investigated the scene of Ms. Bruce’s death testified as to what he saw at the scene of her death. He also stated that the photographs accurately portrayed that which he observed. Since the verbal description of the scene was admissible, the photographs depicting the scene were also admissible. Also, we have examined the photographs and find that the trial judge did not abuse his discretion in admitting them over appellant’s objection on the basis of undue prejudice. Appellant’s seventh ground of error is overruled.

Appellant alleges in ground of error number eight that the trial court erred in overruling his request for instruction to the jury at the punishment stage of the trial regarding the definition of the term “deliberate.”

In Heckert, supra 612 S.W.2d at 552, we stated that since the term “deliberately” has not been specially defined by statute, it is to be taken and understood in its usual acceptation in common language. In King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977), we held that the term “deliberately” need not be defined in the charge to the jury during the punishment stage of a capital murder trial. Given that the trial judge need not define the term, the trial court in the case at bar did not err in overruling appellant’s request for the definition. Russell v. State, 665 S.W.2d 771 (Tex.Cr.App., 1983). Appellant’s eighth ground of error is overruled.

In appellant’s last ground of error, he contends that there was insufficient evidence to support the jury’s finding that appellant would be a continuing threat to society because the finding was contrary to the evidence that appellant had undergone a Christian conversion.

At the punishment state of trial, the State introduced evidence regarding the offense at bar and prior felonies and acts of violence committed by appellant in order to prove that he would be a continuing threat to society. The State showed that appellant had murdered Janna Bruce, stolen her car, and fled to San Antonio with his accomplice, Sara Clark, and Pamela Jackson. On December 6, 1981, approximately five days before the murder of Carrie Scott, appellant attempted to kill three persons. Evidence regarding the rape and sexual torture of a fourteen year old girl in California was introduced. The State also introduced final convictions held by appellant in three other states.

After the State presented its evidence, appellant called four witnesses. Each witness stated that appellant had undergone a Christian conversion.

The jury, as the trier of fact during the punishment stage of the trial, was entitled to assess the credibility of all witnesses. Minx v. State, 615 S.W.2d 748 (Tex.Cr.App.1981). We find that the evidence presented is sufficient to support the jury’s determination that appellant would commit criminal acts of violence that would constitute a continuing threat to society. See Villarreal v. State, 576 S.W.2d 51 (Tex.Ci.App.1979), and cases cited at 65. Appellant’s ninth ground of error is overruled.

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

CLINTON, J., dissents to ground of error # 8.

Before the court en banc.

OPINION DISSENTING TO DENIAL OF APPELLANT’S MOTION FOR LEAVE TO FILE MOTION FOR REHEARING WITHOUT WRITTEN OPINION

CLINTON, Judge.

The Court continues to compound the error of the decision in Russell v. State, 665 S.W.2d 771 (Tex.Cr.App.1983) by again refusing to reconsider the continued viability of King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977) which held we need not provide instructional guidance to capital juries on the meaning and import of “deliberately” as employed in the first special punishment issue.

When written, the primary underpinning of King (that “deliberately” is a simple word of and by itself, and jurors know the common meaning of it) appeared to be sound; but developments over the intervening years have illuminated a need to reconsider that position. See Russell, supra, at 783, n. 8 (Opinion dissenting). Indeed, the Court has even acknowledged that to construe “intentionally” to be the equivalent of “deliberately” “would render Art. 37.-071(b)(1), [V.A.C.C.P.] a nullity. Under such a [construction the deliberateness question] would be a useless thing in that a finding of an intentional ... murder would be irreconcilable with a finding that the defendant’s conduct was not committed deliberately.” Heckert v. State, 612 S.W.2d 549, 550-551 (Tex.Cr.App.1981).

While this statement from Heckert is absolutely correct and unquestionably compelled by logic, it is ironic indeed that in the same year King was written, the Court noted in Blansett v. State, 556 S.W.2d 322, 327, n. 6 (Tex.Cr.App.1977) that a finding the killing was intentional was irreconcilable with the jury’s negative answer on the deliberateness question.

If in 1977 the members of this Court believed “deliberateness” was the same thing as “intentional,” all the collective legal training notwithstanding, how can we any longer seriously suggest that jurors, without the least bit of assistance, will, in every case not apply it the same way as Blansett — a way Heckert now acknowledges would be unconstitutional?

I can appreciate the fact that once a decision has been made, it is very difficult to reconsider it — particularly when to do so could invalidate a number of past convictions. But it seems to me that when we can clearly see a substantial error in past decisions which is rendering trials unfair and unconstitutional, that the alternative to correcting it ourselves is infinitely more disastrous to the finality and integrity of our capital convictions, as the consequences of Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980) and Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981), should illustrate.

Rather than setting precedent which might invalidate some past capital convictions, the majority instead perpetuates precedent which risks invalidation of not only past convictions, but also every future capital conviction in which jury guidance on “deliberateness” is requested.

Many careful Texas trial judges and prosecutors protected the integrity of capital convictions in their courts by refusing to apply the V.T.C.A. Penal Code, § 12.-31(b) oath and the limitations announced in Witherspoon v. Illinois as “separate and independent grounds for exclusion” of capital jurors in spite of the approval given by this Court, simply because it was apparent to them that such an application was unconstitutional and unfair. Likewise, it behooves careful trial officials to exercise the same degree of independent thought in instructing capital juries on the import of “deliberateness.” See Williams v. State, 674 S.W.2d 315, 322, n. 6 (Tex.Cr.App.1984).

For the reasons stated in the dissenting opinion in Russell, supra, I remain convinced that the Court’s refusal to reconsider this matter in light of experience and clear indications of confusion is resulting in an unconstitutional application of Article 37.071 in many capital cases.

I dissent.

TEAGUE, J., joins.

      . Appellant has not challenged the plea entered before the trial court. We have made an independent examination of the record and determined that appellant’s plea of guilty was made both voluntarily and understandingly. The trial judge advised appellant outside of the presence of the jury of the consequences of entering a plea and appellant’s rights with regard thereto, on three separate occasions during trial. Moreover, appellant’s plea was supported by evidence in the record. The trial court, therefore, properly accepted appellant’s plea. See Arts. 26.13, 27.13, V.A.C.C.P.; Wheeler, supra; McKelvey, supra; Runo, supra; Cantu, supra; Helms, supra.

      . Appellant's emphasis.

      . Janna Bruce was not the victim of the instant offense. Her death, however, occurred a few days prior to the offense in the case before us.

      . 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

      . See Moore v. State, 542 S.W.2d 664 (Tex.Cr. App.1976) and its progeny.