text:
    John Albert DRAPER, Appellant, v. STATE of Texas, Appellee.
    No. A14-82-196-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 2, 1984.

      Craig Washington, Donald W. Rogers, Jr., Houston, for appellant.
    James Brough, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

John Albert Draper appeals his conviction for burglary of a habitation for which his enhanced punishment was set at life imprisonment. In two grounds of error, appellant contends that the evidence presented was insufficient to support his conviction, and that the trial court erroneously denied his motion to dismiss under the provisions of the Speedy Trial Act. We affirm the conviction.

Because the sufficiency of the evidence is challenged, we will first review the relevant facts. Louis Holmes, a maintenance man at the Fountainview Apartments, testified that he noticed a man, identified as John Albert Draper, and his wife, Janice Draper, sitting in a car outside the apartment complex washateria. The woman got out of the car and began walking from apartment to apartment, knocking on doors. During this time, appellant had parked the car and walked away from the apartments toward a nearby convenience store. Mr. Holmes then observed that Janice Draper had crossed a street in the complex and picked up a car rim that had been discarded in the complex. She took the rim to the patio area belonging to the complainant, Mrs. Kays. Mrs. Draper then used the rim to pull herself into a tree and over the wooden fence surrounding Mrs. Kays’s patio. Moments later Mr. Holmes saw the sliding patio door open. He immediately went to the apartment manager’s office to inform them of the activities. He returned to Mrs. Kays’s apartment with the manager and assistant manager. The assistant manager went to Mrs. Kays’s front door and began knocking on it. Mr. Holmes and the manager waited in the back and then observed appellant and his wife coming out of Mrs. Kays’s patio gate. The manager attempted to question them as to their reasons for being there, whereupon Mrs. Draper mumbled something about looking for an old woman. The manager offered to help them locate the woman and suggested that they accompany her to the apartment offices; appellant and his wife, however, refused to speak with them and instead went to their car and sped off. The manager was able to observe their license plate number and reported the same to the police. Based on this information, appellant was apprehended the next day.

Although nothing was missing from Mrs. Kays’s apartment, several items were displaced. The television in her daughter’s room was turned around, and the television in her own room was turned on and the remote control placed on top of the television, while she typically places it by her bed. A camera which she kept in her closet was on the bed, and a trophy usually kept in a trophy case in the living room, was on the couch. The patio door had been pried open, and Mrs. Kays testified that it had been securely locked when she left that morning. Based on this information, appellant was indicted and convicted of burglary of a habitation.

In his first ground of error, appellant contends that there was insufficient evidence to convict him, either individually or as a party to the burglary. In order to sustain appellant’s conviction the evidence presented must establish all material elements of the offense. Alvarado v. State, 632 S.W.2d 608, 610 (Tex.Crim.App.1982). We must review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. See Phipps v. State, 630 S.W.2d 942, 944 (Tex.Crim.App.1982). The essential elements of burglary are: (1) a person; (2) without the effective consent of the owner; (3) enters a habitation with the intent to commit a felony or theft. Garcia v. State, 571 S.W.2d 896, 899 (Tex.Crim.App.1978). See also Ford v. State, 632 S.W.2d 151, 152 (Tex.Crim.App.1982). Since the trial record positively established that the appellant was discovered leaving Mrs. Kays’s enclosed apartment patio area and that she had not given him consent to enter, the only elements of burglary that appellant could plausibly challenge are entry and intent.

Both entry and intent may be established by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex.Crim.App.1976); Williams v. State, 537 S.W.2d 936, 938 (Tex.Crim.App.1976); Garcia v. State, 649 S.W.2d 70, 72 (Tex.App.—Corpus Christi 1982, no pet.); Warren v. State, 641 S.W.2d 579, 582 (Tex.App.—Dallas 1982), pet. dism’d, 652 S.W.2d 779 (Tex.Crim.App.1983) (en banc). In the instant case, appellant was discovered leaving the enclosed patio area of an apartment which had been forcibly entered, and which had been secured by the resident that morning. The sliding door to the apartment had been pried open and a number of items inside the apartment had been moved from their normal location. He and his wife left the premises through the back door only when the assistant manager pounded on the front door. When confronted by the apartment manager, appellant did not offer any explanation for his presence, nor did he agree to accompany her to the office. Instead, he quickly fled the premises, jumped into his car, and hurriedly sped off, almost hitting the manager in his haste to leave. These actions, without realistic justification therefor, are circumstantially sufficient to establish both his entry and intent.

Appellant urges that these circumstances merely established his presence at the scene of the crime and his flight therefrom, and that this was insufficient to sustain his conviction. See Moore v. State, 532 S.W.2d 333, 337 (Tex.Crim.App.1976); Ysasaga v. State, 444 S.W.2d 305, 308 (Tex.Crim.App.1969). These cases, however, each involved a person who was simply found in the vicinity of a crime, not one actually at the scene, as was the case with appellant Draper. Additionally, while these circumstances alone are not adequate to sustain a conviction, they are circumstances which tend to prove guilt, and which, combined with additional facts, may suffice to show appellant was a participant. Thomas v. State, 645 S.W.2d 798 (Tex.Crim.App.1983). See also Robinson v. State, 658 S.W.2d 779, 781 (Tex.App.—Beaumont 1983, no pet.). We find the evidence cumulatively sufficient to uphold the judgment.

Appellant also suggests that Mrs. Draper offered a reasonable hypothesis and justification for his presence at the scene of the crime. She testified that she and appellant went to the complex looking for her friend, Dan, who she thought would help them rent an apartment. As she was looking for him, she became dazed, and she just suddenly found herself in Mrs. Kays’s apartment, not knowing how she got there. She testified that her loss of consciousness was not an unusual occurrence to her, as she was “attempting to kick a drug habit” and had experienced memory lapses in the past. Once she discovered herself in Mrs. Kays’s apartment, she saw a cat, which looked like her deceased aunt’s cat, which, in turn, led her to believe she was actually present in her dead aunt’s apartment. She then left the apartment, located appellant, and took him back into the apartment to prove her story. Mr. Holmes and the apartment managers discovered them as they were leaving the enclosed patio area of the apartment. While this testimony does present a novel hypothesis for appellant’s presence at the scene of the burglary, it is difficult to consider the combination of “looking for Dan”, cat, and dead aunt hypothesis reasonable, particularly considering the method of entry, the hasty exit, and the displacement of items in the apartment. See O’Pry v. State, 642 S.W.2d 748 (Tex.Crim.App.1982).

Additionally and alternatively, appellant was guilty as a party to the burglary. Under section 7.02 of the Penal Code, a defendant is guilty as a party to an offense when he is physically present at the commission of the offense and encourages the commission by words or agreement. Porter v. State, 634 S.W.2d 846, 849 (Tex.Crim.App.1982). Such an agreement to act together in committing an offense may be established by circumstantial evidence. Medrano v. State, 658 S.W.2d 787, 791 (Tex.App.—Houston [1st Dist.] 1983, pet. ref’d). In determining whether appellant participated as a party, the fact finder may consider events before, during, and after the offense and may rely on actions indicating an understanding to do a certain act. Strelec v. State, 662 S.W.2d 617, 619 (Tex.App.—Houston [14th Dist.] 1983, no pet.).

In the instant case, appellant drove his wife to the complex where the burglary took place. He loitered in the area while she knocked on doors and then entered Mrs. Kays’s apartment in order to verify that his wife had found a cat and apartment belonging to her dead aunt. After the assistant manager knocked on the front door of the apartment, he was then discovered leaving those premises from the rear with his wife and rushed her to his car, refusing to stop and speak with the manager. These circumstances present sufficient evidence for the trier of fact to determine that appellant was a party to this offense. Appellant’s first ground of error is overruled.

Appellant was indicted on November 11, 1980, but was not tried until September 16, 1981. At that time, he filed a motion to dismiss claiming that more than 120 days had elapsed since his indictment, and that this violated the provisions of the Speedy Trial Act. The court denied that motion. On September 18, 1981, however, the trial ended and resulted in a mistrial caused by a hung jury. While the trial court apparently had legal justification for denying the motion, we need not delve into it as Article 32A.02 of the Code of Criminal Procedure specifically provides that a criminal action commences on the date of the mistrial. Tex.Crim.Proc.Code Ann. art. 32A.02 § 2(b) (Vernon Supp.1984). Consequently, appellant could only suggest error under the Speedy Trial Act as to the second trial, since that is the relevant action for purposes of the Act. Appellant did not move for a discharge in the second trial, and therefore waived any alleged speedy trial rights by the specific provisions of article 32A.02 § 3. Appellant’s second ground of error is overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: MURPHY, Justice.

license: Public Domain

text:
    Charles Robert CASEY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-663-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 2, 1984.
    Rehearing Denied Oct. 25, 1984.

      Stanley Schneider, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

This is an appeal from a conviction for escape pursuant to Tex.Penal Code Ann. Sec. 38.07 (Vernon 1974). The appellant waived trial by jury and entered a plea of not guilty. The trial court found appellant guilty and assessed punishment at two years confinement in the Texas Department of Corrections. We affirm.

The record reflects appellant was arrested and charged with the felony offense of kidnapping on January 29, 1983. Bail was set at $2,000. Appellant, never released from custody due to his failure to make bond, was escorted by Deputy Sheriff J.K. Shipley to a twenty-four hour hearing on January 31, 1983. After hearing the evidence the court increased appellant’s bond to $20,000 and ordered the Deputy to “take Casey into custody.” Appellant then ran from the courtroom and was apprehended approximately 20 feet outside the courtroom door.

Appellant went to trial by way of written stipulated evidence as set forth:

On January 31, 1983, at 9:30 a.m. at 301 San Jacinto, Houston, Harris County, Robert Charles Casey reported to the 228th District Court for purposes of a 24 hr. hearing. On motion of the State, Honorable Ted Poe, Judge 228th District Court raised Charles Robert Casey’s bond. Bond was raised to $20,000.00. Judge Poe ordered Deputy Shipley to take Casey into custody. Deputy Shipley ordered Casey to go with him twice. After the second order, Casey broke and ran from [sic] courtroom. Casey was apprehended outside the courtroom approximately 20 feet from the courtroom door. Casey struggled with Deputy Shipley. Casey was subdued by Deputy Shipley with the assistance of four Houston Police Officers.

Additionally, appellant stipulated orally that Deputy Shipley was a deputy sheriff with the Harris County Sheriffs Department.

Appellant contends in his first ground of error the trial court erred in overruling his motion to quash the indictment. Specifically, appellant argues the indictment fails to adequately notify him of the offense alleged because it failed to state (1) the authority under which J.K. Shipley was acting when he placed appellant into custody and (2) the manner in which the appellant’s conduct constituted an escape. We disagree.

In Farmer v. State, 540 S.W.2d 721 (Tex.Cr.App.1976), the indictment alleged that the defendant escaped from the custody of W.E. Heeter. The indictment did not specify in what capacity W.E. Heeter was acting when he placed the defendant in custody. After defining custody, the Court of Criminal Appeals reasoned “... by its legal definition appellant was put on notice that Heeter was either a peace officer or a public servant acting pursuant to an order of the court.” Id. at 722. Additionally, there was a stipulation by Farmer that he was in the custody of Officer W.E. Heeter. After taking all this into consideration, the court held that the failure to allege the capacity of the custodian did not render the indictment fatally defective. Id.

In appellant’s brief, he cites no authority for his contention that the indictment failed to give adequate notice as to the manner in which his conduct constituted an escape. Texas courts have held similar indictments afforded adequate notice where there was no allegation of the manner of escape. The indictment in this case follows the language of the escape statute. We see no reason to require that the State plead more than the language of the escape statute in the absence of legislative intent or known principles of law to the contrary. Rowl v. State, 547 S.W.2d 612 (Tex.Cr.App.1977); Booker v. State, 523 S.W.2d 413, 414 (Tex.Cr.App.1975).

In the case at bar, we feel that the indictment was sufficient to afford adequate notice and with the stipulation by the appellant that J.K. Shipley was a deputy sheriff, we find no error. Appellant’s first ground of error is overruled.

Appellant complains in his second ground of error that the evidence is insufficient to support his conviction because Deputy J.K. Shipley had not detained, arrested or restrained appellant by merely commanding him to come along. We disagree.

In order to find appellant guilty of escape, pursuant Section 38.07 of the Texas Penal Code, the State must present evidence to show that appellant was "detained or arrested by a peace officer” or “restrained by a public official pursuant to a court order” at the time that he made an unauthorized departure from custody.

Appellant is correct in his contention that Chapter 38 of the Penal Code does not define the terms “detained,” “arrest” or “restraint.” However, when words in a criminal statute are not defined, the words employed are given their plain meaning. Tex.Penal Code Ann. Sec. 1.05(b) (Vernon 1974); Campos v. State, 623 S.W.2d 657, 658 (Tex.Cr.App.1981).

Black’s Law Dictionary, Fifth Edition, defines “detain,” “arrest” and “restraint” as follows:

Detain. To restrain as to possession of personalty. To arrest, to check, to delay, to hinder, to hold or keep in custody, to retard, to restrain from proceeding, to stay, to stop.
Arrest. To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.
Restraint. Confinement, abridgement, or limitation. Prohibition of action; holding or pressing back from action. Hinderance, confinement, or restriction of liberty. Obstruction hinderance or distruction of trade or commerce. (Emphasis added.)

The word “detain” means to arrest and the word “arrest” means to deprive a person of his liberty by legal authority. This is done by taking custody of another for the purpose of holding or detaining him to answer a criminal charge. Black’s Law Dictionary defines “custody” as:

... the detainer of a man’s person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. (Emphasis added.)

See also Scott v. State, 672 S.W.2d 465 (Tex.Cr.App.1984).

Under the facts of this case, we hold that the evidence is sufficient to support appellant’s conviction. Once the trial court raised appellant’s bond and ordered Deputy Sheriff J.K. Shipley to take appellant into custody, appellant was deprived of his liberty by the court’s legal authority or power. There was no need for Deputy Sheriff J.K. Shipley to take manual possession of appellant to take him into custody. Accordingly, appellant’s second ground of error is overruled.

The Judgment of the trial court is affirmed.

      . ",.. intentionally and knowingly escape from the custody of J.K. Shipley after having been charged with the felony offense of kidnapping. ..” formal portions omitted.

      . "... ‘Custody’ means detained or under arrest by a peace officer or under restraint by a public servant pursuant to an order of the court.” Tex. Penal Code Ann. Sec. 38.01(2) (Vernon 1974).

      .... § 38.07 Escape

      (a) a person arrested for, charged with, or convicted of an offense commits an offense if he escapes from custody. Tex.Penal Code Ann. Sec. 38.07 (Vernon 1974).


author: T. GILBERT SHARPE, Justice (Retired).

text:
    Troy Phillip READY, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-707CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Barry J. O’Keefe, Humble, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired).
   OPINION

T. GILBERT SHARPE, Justice (Retired).

This appeal is from a judgment revoking appellant’s probation. On January 14, 1983, appellant entered a plea of guilty to the offense of burglary of a building. Punishment was assessed at six years confinement in the Texas Department of Corrections; however imposition of the sentence was suspended and appellant placed on probation. The State filed an amended motion to revoke appellant’s probation on September 30, 1983. The State alleged in its motion that on or about August 10, 1983, appellant committed the felony of burglary of a building. The trial court granted the state’s motion and imposed a three-year term of confinement.

In two grounds of error the appellant contends that the trial court abused its discretion by revoking his probation because the evidence presented at the hearing was insufficient.

In a probation revocation proceeding, the state must prove the allegations of its motion by a preponderance of the evidence. Garrett v. State, 619 S.W.2d 172 (Tex.Crim.App.1981). Upon appellate review, the court must view the evidence in a light most favorable to the order of the court below. Garrett, 619 S.W.2d at 174. The decision to revoke probation lies within the sole discretion of the trial court and is subject to reversal only upon a showing of abuse. Barnett v. State, 615 S.W.2d 220 (Tex.Crim.App.1981) dismissed, 454 U.S. 806, 102 S.Ct. 79, 70 L.Ed.2d 75 (1981).

The State’s evidence at the hearing established the corpus delecti. Testimony showed that the offices of Dr. Henrekson were entered and items of personal property — certain drug items in a container— were removed, all without the doctor’s consent. Further testimony offered by two accomplice witnesses then linked the appellant to the commission of this offense. The accomplices testified in substance that, during the early morning of August 10, 1983, the appellant accompanied them to certain office buildings, one of which was the office of Dr. Henrekson, and proceeded to break into the offices and pilfer certain items therein.

Appellant complains that because this testimony was offered by accomplices, without corroboration, it is insufficient to support revocation. However, the Texas Court of Criminal Appeals has expressly rejected this proposition, holding instead that uncorroborated accomplice testimony will support a revocation of probation. Russell v. State, 551 S.W.2d 710 (Tex.Crim.App.1977) cert. denied, 434 U.S. 954, 98 S.Ct. 480, 54 L.Ed.2d 312 (1977); Moreno v. State, 476 S.W.2d 684 (Tex.Crim.App.1972). In a proceeding to revoke probation, the trial court is the sole trier of fact and judge of the credibility of the witnesses and weight to be given particular testimony. Where the State has proved up each element of the offense alleged as grounds for revocation, the court may, in its sound discretion, revoke probation. Naquin v. State, 607 S.W.2d 583 (Tex.Crim.App.1980). Here, the trial judge chose to believe the facts as related by the accomplices, and the evidence supports his finding.

Appellant further contends that a certain portion of the accomplice testimony was hearsay and lacking of probative force. The record reflects that appellant voiced no objection to this testimony at the hearing. The Court of Criminal Appeals has held that hearsay testimony, which is admitted into evidence without objection and is sufficiently reliable, will be afforded probative value in revocation hearing. Frazier v. State, 600 S.W.2d 271 (Tex.Crim.App.1979). The Court defined “sufficiently reliable” as testimony which is subject to cross-examination. Frazier, supra at 274. The record reflects that appellant had ample opportunity to cross-examine the witnesses.

We hold that the evidence was sufficient to support the order revoking probation and that no abuse of discretion is shown. Grounds of error one and two are overruled.

The judgment is affirmed.


author: SEARS, Justice.

text:
    Dwain ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-762CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 25, 1984.

      Randy McDonald, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL and SEARS, JJ„ and T. GILBERT SHARPE, J. (Retired).
   OPINION

SEARS, Justice.

This is an appeal from an order revoking probation.

Appellant alleges in two grounds of error that the trial court abused its discretion in revoking the probation because: (1) the evidence failed to show both ability to pay costs and fees imposed by the court and intentional non-payment and, (2) the guilty plea to a subsequent criminal charge was coerced. We find no error and affirm.

On April 7, 1983, Appellant pled guilty to a charge of forgery. His punishment was assessed at four years confinement in the Texas Department of Corrections and a $700.00 fine. The imposition of sentence was suspended and the Appellant placed on probation pursuant to TEX.PENAL CODE ANN. art. 42.12, § 3 (Vernon 1979). The probation agreement ordered the Appellant to: (1) pay a $700.00 fine in monthly installments of $50.00 beginning May 8, 1983; (2) pay $91.00 in court costs by May 8, 1983; (3) pay a probation supervisory fee of $15.00 per month beginning May 8, 1983; (4) pay a $150.00 reimbursement to Harris County for court-appointed counsel in monthly installments of $10.00 beginning May 8, 1983; and (5) pay $15.00 per month in restitution to the Crime Stoppers of Houston, Inc. beginning May 8, 1983.

On September 23, 1983, the State filed a Motion to Revoke Probation alleging failure to pay the above fees and the commission of a subsequent crime. The State’s motion was granted on November 4, 1983, and the original sentence and fine were imposed on the Appellant.

It is undisputed that Appellant failed to make any monthly payments as agreed under the terms of probation beyond one $40.00 payment in May, 1983, representing $15.00 towards the supervisory fee, $10.00 for appointed counsel, and $15.00 to Crime Stoppers, Inc. Where revocation of probation is based upon the nonpayment of fees and costs under the terms of the probation agreement, there must be a showing at the revocation hearing of the probationer’s ability to make the payments and that his failure was intentional. Fletcher v. State, 547 S.W.2d 634 (Tex.Crim.App.1977); Herrington v. State, 534 S.W.2d 331 (Tex.Crim.App.1976). Testimony by the Appellant’s probation officer indicates that Appellant reported he was employed throughout the period of non-payment. Appellant testified that he worked at various jobs during his probation and that during the probationary period he was living at home with his mother who was also employed. Although Appellant asserts qn inability to make his probation payments because he was contributing his salary towards essential household expenses, he testified that he bought a television set on a time payment plan and successfully made all the payments as they came due during his probation. The Appellant also testified that he used his earnings to pay for automobile repairs.

It is within the trial court’s discretion to disbelieve the probationer’s assertion of his inability to make the probation payments. Harris v. State, 629 S.W.2d 832 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d). Further, we must view the evidence in a light most favorable to the verdict. Jones v. State, 589 S.W.2d 419 (Tex.Crim.App.1979). The evidence demonstrates the State met its burden of making a prima facie showing of Appellant’s ability to make payments, and that the failure to pay was intentional. Further, there is no showing of any abuse of discretion by the trial court. The first ground of error is overruled.

During the revocation hearing the State introduced a misdemeanor judgment against the Appellant on a charge of theft to which Appellant pled guilty on September 6, 1983. Appellant attacks this conviction on the ground that his plea of guilty was involuntary and was coerced by the prosecutor’s statement that the conviction would not affect his probation. Appellant testified that he told the prosecutor of his probation, stated that if he pled guilty it would revoke his probation, and asked for an attorney. The prosecutor then allegedly told him that his plea of guilty would not affect his probation. While we feel a question of impropriety is raised when a prosecutor negotiates a guilty plea from a person on probation who is not represented by counsel, Appellant has failed in this case to substantiate his charges. The prosecutor in question was not called to testify at the hearing and no other proof was given to the court. In any event, the theft conviction was not the sole basis for revocation as the court also based revocation on the non-payment of fees and fines. Proof of any single alleged violation of a condition of probation is sufficient to support revocation. Green v. State, 650 S.W.2d 464 (Tex.App.—Houston [14th Dist.] 1982, no pet.); Moore v. State, 605 S.W.2d 924 (Tex.Crim.App.1980). The second ground of error is overruled.

The Appellant’s grounds of error are overruled and the revocation of probation affirmed.


author: JUNELL, Justice.

text:
    Ralph MALONE, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-204-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 16, 1984.

      E. Stanley Topek, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This appeal is taken from an order revoking probation.

On November 16, 1979, appellant pled no contest to a charge of burglary of a habitation with intent to commit rape. Punishment was assessed at eight years confinement, probated. In February, 1981, the state moved to revoke probation, alleging three separate grounds: (1) that appellant had committed rape and two counts of sexual abuse, (2) that appellant had failed to report to his probation officer as directed by the court, and (3) that appellant had failed to pay his supervisory fee as directed by the court. On June 29, 1981, at the conclusion of the hearing on the motion the trial court announced that it found appellant not guilty of the first ground of revocation but found appellant in violation of the terms of his probation and ordered the probation revoked. However, the court did not state any reasons why appellant was in violation of the terms of probation or the reasons for the revocation.

Appellant filed a motion on July 14,1981, requesting that the trial court specify the grounds on which revocation was predicated. On that same day, the trial court entered the order revoking probation, specifying therein that appellant had violated the terms of his probation in that “he failed to report to the probation officer as directed and failed to pay supervisory fee.” The Court of Appeals for the First Supreme Judicial District reversed and remanded for failure of the trial court to set forth more specifically the reasons for revoking probation. In response to that judgment, the trial court reheard the motion on March 21, 1983, and at the conclusion of the hearing announced that appellant’s probation was revoked for failure to report to his probation officer on April 17,1980, November 17, 1980, December 17, 1980 and January 17, 1981 and for failure to pay the probation supervisory fees, and that he was $120.00 in arrears. The order revoking probation stated that appellant’s probation was revoked because appellant “failed to report to the probation officer as directed and failed to pay supervisory fees.”

Appellant’s sole ground of error alleges that the trial court’s order fails to set forth the reasons for revoking probation with sufficient specificity. We disagree. An examination of the record reveals that at the March 21, 1983 hearing, the trial court pronounced specifically the grounds for revoking appellant’s probation. The written order also states the same two grounds for revocation although it does not state specifically the dates of failure to report or the total arrearage in supervisory fee payments. We hold that on this record the court’s order complies with the requirement that it set forth the court’s findings in a manner sufficient to inform a probationer of the conditions of probation the court found were violated. In our opinion it is not necessary on this record for the revocation order to state the specific months he failed to report or pay the supervisory fee or the total amount of arrearage in the supervisory fee payments.

Appellant relies on Garcia v. State, 488 S.W.2d 448 (Tex.Crim.App.1972). Garcia is distinguishable. The Garcia court made no oral findings despite a request for the specific grounds for revocation. Moreover, the written findings in Garcia stated that the court was sustaining allegations of probation violations found in three specific paragraphs of the Motion to Revoke Probation. Two of the paragraphs referred to did not even exist and the other did not allege a violation of probation. The judgment in that case was reversed and remanded because the findings were clearly insufficient. No such confusion is present in this case. The trial court in the instant case orally and in writing apprised appellant of the reasons for revocation.

Appellant also cites Aguilar v. State, 542 S.W.2d 871 (Tex.Crim.App.1976) for the proposition that the written findings of the court control over the oral pronouncement. However, a closer reading of Aguilar reveals that court reversed and remanded because there was insufficient evidence to support the trial court’s findings relative to violation of probation, and that although the trial judge made an oral statement regarding the defendant’s possessing heroin, the written orders revoking probation did not contain the court’s findings relative to the defendant’s possessing the drug. In the case at bar there were written findings which are consistent with the oral pronouncements of the trial court and lack of evidence to support the findings is not an issue. We, therefore, find Aguilar inapplicable.

The granting of probation in a non-jury trial is a matter resting entirely within the discretion of the trial court. The trial court has that same discretion in revoking the probation it granted, so long as a violation of probationary conditions is proven by a preponderance of the evidence and so long as there are no procedural irregularities. Flournoy v. State, 589 S.W.2d 705 (Tex.Crim.App.1979). The allegations in the case at bar regarding probationary violations have been sustained by a preponderance of the evidence. In fact, appellant does not challenge the sufficiency of the evidence.

The record reveals no procedural irregularities and clearly sets forth the reasons for revocation of appellant’s probation. We therefore overrule appellant’s single ground of error.

The judgment of the trial court is affirmed.


text:
    Homer Lee COATS, aka Shawn Lee, Appellant, v. STATE of Texas, Appellee.
    No. C14-82-707-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 13, 1984.

      Robert W. Tarrant, Houston, for appellant.
    William Meitzen, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

MURPHY, Justice.

Homer Lee Coats (Coats or Appellant) was found guilty by a jury of being party to a theft of $10,000 cash. The court assessed punishment of twelve years imprisonment and a fine of $2,500.00. In five grounds of error Coats contends the evidence was insufficient for conviction, and that the indictment should have been quashed.

Two accomplices testified that Coats forced one of them to enter a grocery store where she was employed and take ten thousand dollars from a cash collection area. The accomplice then put the money in an unlocked car parked in a parking lot outside the store. Coats recovered the money from the car and later went on a spending spree to Las Vegas with the two accomplices.

Appellant asserts the evidence was insufficient to show lack of consent, unlawful appropriation, or the other elements of the offense. He also asserts there was insufficient evidence to corroborate the testimony of the accomplices.

With respect to the issue of consent, the manager of the grocery store testified he gave no consent for Coats’ accomplice to remove money from the store. Lack of consent renders its appropriation unlawful. TEX.PENAL CODE ANN. § 31.03(b) (Vernon Supp.1984). Testimony was given to substantiate Coats’ intent to deprive the owner of the money taken, and that he had possession of this money. A rational jury could have concluded beyond a reasonable doubt that the evidence was sufficient to prove all of the elements of theft. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Cr.App.1983).

Appellant asserts there was insufficient evidence corroborating the testimony of the accomplices. The record contains the following independent evidence. The assistant store manager testified he saw a man waiting in a truck in the parking lot where the accomplices testified Coats was waiting. A manager of another store in the shopping center testified that Coats used a pay phone at the same time one of the accomplices testified Coats talked to her while she was in the cash collection area. Other witnesses testified that Coats paid cash to rent a truck shortly after the theft, and that he went on a trip to Las Vegas thereafter. An apartment manager from Las Vegas testified that Coats rented two apartments with cash, and always paid the rent in cash. She testified that he seemed proud of his money and often flashed large amounts of cash. Finally, after Coats was evicted from his apartment in Las Vegas, he returned to the business where he rented the truck and asked for a copy of the rental agreement. When asked why he wanted it, he said it was important because it could keep him out of going to jail for ten years.

The evidence in this case was sufficient to corroborate the testimony of the accomplices. Corroborating evidence need only tend to connect the accused with the commission of the offense. Apparently insignificant circumstances can corroborate accomplice testimony. Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Cr.App.1983). Appellant’s first four grounds of error relating to the sufficiency of the evidence are overruled.

Appellant next asserts the indictment should have been quashed because the word “appropriate” was not defined. The relevant phrase in the indictment charged Coats, “did then and there unlawfully, intentionally and knowingly appropriate property, to wit: cash money, in the amount of $10,000.00.” Coats filed a written, timely, motion to quash the indictment on the basis that he was not given fair notice as to the unlawful conduct of which he was being accused.

In Gorman v. State, 634 S.W.2d 681, 683 (Tex.Cr.App.1982); and Coleman v. State, 643 S.W.2d 124, 126 (Tex.Cr.App.1982) (en banc), the Court of Criminal Appeals has stated that when a timely motion to quash has been filed, the State must take further steps to define the word “appropriate” in an indictment for theft. An accused must be informed of the conduct for which he is being prosecuted. “Appropriate” could mean the taking of physical possession, or it could mean the taking of non-possessory title, such as a bill of sale or bill of lading. The Court of Criminal Appeals cites TEX. BUS. & COM.CODE ANN. § 2.105(a) (Vernon 1968) to demonstrate that title to “goods” may be transferred in more than one way. Gorman, 634 S.W.2d at 683.

The issue in this case is whether Coats was given fair notice of his culpable behavior when charged with unlawfully appropriating cash money. The answer depends on whether cash money can be considered “goods” as defined in Coleman and Gorman. Both cases involved tangible chattels, a camera and men’s suits. The Austin Court of Appeals in Scott v. State, 646 S.W.2d 638, 639 (Tex.App.—Austin 1983, no writ) decided cash money was “goods” and could be appropriated by more than one means. They relied upon § 2.105 of the Business and Commerce Code, and concluded it would be possible to have a non-pos-sessory interest in cash money.

We disagree. The nature of cash money denies any possible non-possessory interest. The only way to take title to cash money is by physically taking possession of it. The Texas Supreme Court examined § 2.105 and reached the conclusion that cash money cannot be “goods”, and is distinguishable from tangible chattels. Riverside National Bank v. Lewis, 603 S.W.2d 169, 174 (Tex.1980). Cash money would not be a medium of exchange if one did not take title by taking possession.

Coats was given fair notice by indictment of the act of which he was accused. He could only have appropriated the $10,000.00 by taking physical possession of it. His fifth ground of error is overruled.

The judgment of the trial court is affirmed.


author: ROBERTSON, Justice.

text:
    Oscar GARAY, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-395-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1984.
    Rehearing Denied Oct. 11, 1984.
    Blanca Lopez, Spring, Henry Burkholder, III, Houston, for appellant.
    Calvin A. Hartmann, Houston, for appel-lee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

After a plea of not guilty, a jury found appellant guilty of “recklessly causing serious bodily injury to a child under the age of fifteen by placing her in hot water.” The sole ground of error asserted by appellant is that “the evidence produced at trial was insufficient to show that appellant caused serious bodily injury to complainant.” We affirm.

Appellant contends the evidence is insufficient to show that the child’s burns placed her in a substantial risk of death and therefore appellant did not violate TEX.PENAL CODE ANN. § 22.04 (Vernon Supp.1984). We disagree.

In accordance with Section 1.07(a)(34) of the Texas Penal Code, the court instructed the jury that:

“serious bodily injury means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Viewing the evidence in the light most favorable to the verdict we note:

1. Dr. Yudorich stated that due to the severity of the burns immediate treatment was necessary.
2. Dr. McCormack testified that on admission, Karla Elizabeth was extremely dehydrated and had burns on her lower back, buttocks, genitals, back portions of her thighs and calves and her feet.
3. Dr. McCormack further testified that Karla Elizabeth had to be stabilized when admitted to Ben Taub Hospital; that he “spent most of the day with her” and that he left the Intensive Care Unit, where the child was taken, only after he was sure the child wasn’t going to die.
4. Dr. Mintz testified that on admission Karla Elizabeth had superficial and deep burns as first and second degree burns.
5. Photographs showing the severity of Karla Elizabeth’s burns were before the jury and are in the record on appeal.
6. The medical testimony at trial indicated that Karla Elizabeth’s burns were “deep” second degree burns under the new medical terminology. These burns were compared to third degree burns and would have been so labeled except that with scalding water, no charring of the skin occurs.

We hold that the photographs and the medical testimony provided sufficient evidence to sustain the jury finding that appellant did cause “serious bodily injury” to the child. The jury could reasonably conclude from the photographs and the oral testimony that Karla Elizabeth, a two year and five month old child, was likely to die from the injuries that she received or that she sustained serious permanent disfigurement. Hooker v. State, 621 S.W.2d 597 (Tex.Crim.App.198l). Appellant’s ground of error is overruled.

The judgment of the trial court is affirmed.


text:
    W. Marvin RADNEY, et ux., Appellants, v. CLEAR LAKE FOREST COMMUNITY ASSOCIATION, INC., et al., Appellees.
    No. A14-83-511-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 27, 1984.

      Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellants.
    David A. Carp, Michael W. McCoy, Winters, Deaton & Briggs, Jack D. Nolan, Law Offices of Jack D. Nolan, Houston, for appellees.
    Before J. CURTISS BROWN, C.J., and DRAUGHN and ROBERTSON, JJ.
   OPINION

ROBERTSON, Justice.

This is an appeal from judgment finding a violation of a deed restriction, granting a mandatory injunction and awarding attorneys fees. Appellants raise fifty-one points of error arguing that: the restrictive covenant in question was ambiguous; ap-pellee, Clear Lake Forest Community Association, Inc., was not a proper party to enforce the restrictive covenant; appellees were estopped from enforcing the restriction; the Texas Fraudulent Conveyance statute is not applicable to this case; there was legally and factually insufficient evidence to support the finding that there was a fraudulent conveyance; it is impossible for appellants to perform in conformity with the mandatory injunction; the trial court erred in failing to balance the equities between the parties; there was an improper award of attorneys fees; and Special Issue No. Four contained a comment on the weight of the evidence. We affirm.

Appellants were the owners of a one story home located on Lot 48, Block 4, Section I of Clear Lake Forest Subdivision. In February of 1977, they wished to add a second story above their detached garage. They submitted their plans and request for a building permit to the City of Taylor Lake Village. Allen Heidbreder issued the building permit for the City and returned the plans to appellants. After receiving the building permit and plans, appellants began work on the addition to the garage.

The deed restrictions applicable to Section I of Clear Lake Forest Subdivision contained a specific restriction that:

No building shall be erected, altered or permitted to remain on any lot other than one detached single-family residential dwelling not to exceed two stories in height, and a private garage for not more than three cars and bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories.

Heidbreder notified appellee, Logan Hay-craft, Jr., President of the Community Association, that the garage addition was a possible deed restriction violation. Hay-craft also received a complaint about the garage construction from a Mr. Haze-briggs. Haycraft testified that he sent a letter in March of 1977 instructing the Rad-neys to cease the construction because it was in violation of the deed restrictions. Mr. Radney testified that he never received the March 1977 letter. Haycraft never received any indication that the letter was returned.

Appellants continued the work on the garage. In June, 1977, the community association sent another letter, by certified mail, to appellants, complaining that the construction of a second story on the garage was in violation of the deed restrictions. Haycraft and Ms. Jane Webb testified that the letter was returned unclaimed to the Association. Radney testified that his wife claimed the letter at the post office.

After the certified letter was returned unclaimed, Ms. Webb went to the Radney home to personally deliver a copy of the letter. Webb was met at the door of the home by Mrs. Radiiey. Webb was told that Mr. Radney could not talk with her because he was busy working on the roof of the garage. Because Radney continued to work on the garage and failed to make any effort to bring the garage in conformity with the deed restrictions, the community association retained legal counsel. The association’s attorney sent additional notice to appellants that the association considered the garage construction to be in violation of the deed restrictions. Appellants continued with and finished the construction. Appellees, Clear Lake Forest Community Association, Inc. and Logan Haycraft Jr., filed suit against appellants seeking to enforce the restriction.

Shortly before the case was called for trial in April, 1982, appellants’ counsel informed the appellees’ attorney that the property had been sold by the Radneys to Intercontinental Engineering and Management Consultants, S.A. (Intercontinental), a corporation registered in the Caymen Islands. The conveyance was by an unrecorded deed. A continuance was granted. Appellees thereafter amended their petition to include Intercontinental as a party and added a fraudulent conveyance cause of action.

The case proceeded to trial in February, 1983. It was stipulated by counsel for the respective parties that the subject garage exceeds in height or is higher than the main dwelling, that the garage is two stories while the main dwelling is one story, and that the Radneys, at the time of the transfer of the subject property to Intercontinental, were on notice that the association and Haycraft had filed suit to obtain an injunction and recover attorney’s fees. In response to Special Issue No. 1, the jury found that the conveyance of the property from the Radneys to Intercontinental was intended to delay or hinder appellees from obtaining an injunction or collecting attorney’s fees. The jury found, in response to Special Issue No. 2, that Intercontinental purchased the property with notice of the intent of the Radneys to delay or hinder the appellees from obtaining an injunction or collecting attorney’s fees. The jury failed to find that the appellees were es-topped from enforcing the restriction at issue. The fourth special issue asked the jury to find the sum of money that should be awarded to appellees “as reasonable attorney’s fees, for the services rendered by Plaintiff’s attorney in relation to the amount of time expended in asserting a breach of the restrictive covenants or deed restrictions at issue.” The jury awarded: six thousand dollars ($6,000) for the legal services rendered prior to March 19, 1982; twenty-nine thousand dollars ($29,000) for the legal services rendered in the preparation of the trial of this cause after- March 19, 1982; five thousand dollars ($5,000) for legal services if the case is appealed to the court of appeals and two thousand five hundred dollars ($2,500) for legal services if application for writ of error is made to the supreme court.

The trial court entered judgment that: the restriction in question was valid and enforceable; the addition of a second story to the garage was a violation of the deed restriction which continued after the conveyance to Intercontinental; the conveyance from the Radneys to Intercontinental was declared null and void; the Radneys were ordered to remove the second story from the garage within sixty days of the date of the signing of the judgment; and attorney’s fees were awarded to appellees in accordance with the jury verdict.

In point of error thirty-seven, appellants argue the trial court erred in rendering judgment that the second story of the garage be removed, as the restrictive covenant in question is ambiguous as a matter of law, and should be construed in favor of freer use of the land. We cannot agree that the restriction is ambiguous as a matter of law.

The restriction is that:

No building shall be erected, altered or permitted to remain on any lot other than one detached single-family residential dwelling not to exceed two stories in height, and a private garage for not more than three cars and bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories.

Appellants argue that this restriction can be reasonably interpreted in two different ways. Appellants concede that the restriction can be interpreted to mean that each lot may be improved with only two structures: 1) one detached single-family residential dwelling not exceeding two stories in height; and 2) a private garage for not more than three cars and bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories. However, Appellants believe the restriction can also be interpreted to allow each lot to be improved with three structures: 1) one detached single-family residential dwelling not exceeding two stories in height; 2) a three car garage; and 3) bona fide servants quarters, which structure shall not exceed the main dwelling in height or number of stories. Appellants believe that since the restriction can reasonably be construed in two different ways, it is ambiguous as a matter of law and must be construed in favor of freer use of the land. The interpretation that the restriction allows three separate structures on each lot is not a reasonable interpretation. Looking at the wording and punctuation of the specific restriction and all of the deed restrictions, the only reasonable interpretation is that the restriction allows only two structures: 1) a residential dwelling and (2) a private garage with servants quarters, which structure shall not exceed the main dwelling in height or number of stories. Since there is only one reasonable interpretation, the restriction is not ambiguous as a matter of law. Appellants’ point of error thirty-seven is overruled.

In points of error thirty-eight through forty-three, appellants argue that the Clear Lake Forest Community Association was not a proper party to enforce the restriction or recover attorney’s fees. Assuming that the association was not a proper party, an issue we do not decide, any error by the trial court was harmless. Appellants do not challenge the standing of Mr. Haycraft to enforce the restriction. Since Haycraft was a proper party to enforce the restriction and recover attorney’s fees, any error by the trial court in allowing the association to remain as a plaintiff in this action was harmless. Tex.R.Civ.P. 434. Appellants’ points of error thirty-eight through forty-three are overruled.

In points of error twenty-eight through thirty-three, appellants argue that the ap-pellees were estopped from enforcing the restriction in question. In Special Issue No. 3 the jury was asked if they found the appellees were estopped from enforcing the restriction at issue. The jury’s response was “We do not.” Appellants argue that the uncontradicted evidence conclusively established that appellees were estopped by their conduct from enforcing the deed restriction in issue. In the alternative, appellants argue that the jury’s failure to find that appellees were estopped was so against the great weight and preponderance of the evidence as to require that it be set aside.

The evidence before the jury was conflicting. Mr. Radney testified Heidbreder approved the plans and drawings as meeting the restrictions. There is nothing in the record to show that Heidbreder had any authority to act on behalf of the association. Haycraft testified that Heidbreder telephoned him to inform him that the proposed garage construction by appellants was possibly in violation of the deed restrictions. There is evidence in the record that appellees did not precisely follow the procedure the association had established for dealing with potential deed restriction violations. There is no evidence in the record that appellees made any representation that the proposed construction was in conformity with the deed restrictions. Haycraft testified that a letter was sent to appellants in March, 1977, notifying them that the association had reason to believe that the plans for the improvements to the garage might be in violation of the deed restrictions. Radney testified that he never received that letter. Haycraft testified he mailed the letter personally and received no indication that the letter was returned. Another letter was sent by certified mail to appellants in June, 1977. Mr. Radney testified that his wife picked the letter up at the post office. Haycraft and Webb testified that the letter was returned to the association as unreceived. Webb testified that she went to the Radney home to hand deliver a letter and discuss the violation but she was told by Mrs. Radney that Mr. Radney could not speak with her as he was busy finishing the roof of the garage. Mr. Radney testified that he had already spent a substantial amount of money on the garage addition by the time he received the letter from the association in June, 1977.

Looking at the evidence in support of the jury response to Special Issue No. 3, we are unable to say that appellants established conclusively and as a matter of law that the appellees were estopped from enforcing the deed restrictions. Appellants’ argument that the jury’s response to Special Issue No. 3 is against the great weight and preponderance of the evidence requires this court to consider and weigh all the evidence in the record and to reverse the judgment only if the verdict is so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Southwestern Bell Telephone Co. v. Baker, 650 S.W.2d 467 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.). After reviewing the entire record, we are unable to say that the jury’s answer to Special Issue No. 3 was so against the weight of the evidence as to be unjust. Appellants’ points of error twenty-eight through thirty-three are overruled.

In a related argument, appellants, in point of error thirty-six, argue that the trial court erred when Defendant’s Exhibit No. 5 was excluded from evidence. The exhibit consisted of two pages. The first page was a building permit issued by the Village of Taylor Lake, Texas. The second page was an isometric drawing of the proposed garage construction. On the drawing was a handwritten notation, “Permit issued on basis of deed Restrictions only.” Mr. Heid-breder’s initials appear after the notation. Appellees objected to the introduction of the exhibit on the basis that the handwritten notation was hearsay. That objection was sustained.

Appellants argue that by allowing Mr. Radney to testify that he received the plans back from Heidbreder approved as meeting the restrictions, appellees have waived any subsequent objection to the admission of the instrument confirming the testimony. See Boozer v. Stephens, 509 S.W.2d 910, 913 (Tex.Civ.App.—Tyler 1974, no writ). Appellees respond that the notation on page 2 of the exhibit was hearsay, a timely objection to the exhibit was raised, and that Radney’s prior testimony, whether objected to or not, was hearsay which was incompetent and without probative force. See Texas Co. v. Lee, 138 Tex. 167, 157 S.W.2d 628 (1941). The failure of appellees to object to the incompetent testimony of Radney did not serve to waive appellees’ hearsay objection to the admission of Defendant’s Exhibit No. 5. The trial court did not err by excluding the exhibit. Appellants’ thirty-sixth point of error is overruled.

Appellants, in points of error one through five, argue that because the disputed property was their homestead, Section 24.02 of the Texas Business and Commerce Code is not applicable to the convey-anee of the property to Intercontinental. Section 24.02 provides in part:

(a) A transfer of real ... property ... is void with respect to a creditor, purchaser, or other interested person if the transfer was intended to
(1) Delay or hinder any creditor, purchaser or other interested person from obtaining that to which he is, or may become, entitled;
(b) The title of a purchaser for value is not void under Subsection (a) of this section unless he purchased with notice of
(1) The intent of his transferor to delay, hinder, or defraud; ....

TEX.BUS. & COMM.CODE ANN. § 24.02 (Vernon 1968).

Appellants argue that § 24.02 has no application to this case because the property was their homestead and the conveyance of exempt property may not be attacked as being in fraud of creditors. Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801 (1956). The rationale for such a rule is that because the law already removes homestead property from the reach of creditors, the conveyance of the property, whether fraudulent or not, deprives the creditors of no right that they had against the property. See Cox v. Shropshire, 25 Tex. 113 (1860); Taylor v. Ferguson, 87 Tex. 1, 26 S.W. 46 (1894); Wood v. Chambers, 20 Tex. 247, 254 (1857).

However, in this case appellees did not seek to have the conveyance from appellants to Intercontinental be declared fraudulent and void in order to attach the property and satisfy a debt. Appellees were not creditors of appellants. Appel-lees were interested persons who sought to enforce the deed restriction by means of an injunction. Section 24.02 allows an “interested person” to bring an action to void a transfer of real property. Since appellees were “interested persons” and not “creditors”, the rule that a conveyance of exempt property may not be attacked as a fraudulent conveyance as to creditors has no application. The trial court did not err in applying section 24.02 to this fact situation. Points of error one through five are overruled.

In response to Special Issue No. One, the jury found that the transfer of the property to Intercontinental by appellants was intended to delay or hinder appellees from obtaining an injunction or collecting attorney’s fees. The jury found, in response to Special Issue No. Two, that Intercontinental purchased the property with notice of the intent of the appellants to delay or hinder appellees from obtaining an injunction or collecting attorney’s fees.

In points of error six through twenty-three, appellants argue: there was insufficient evidence to support the submission of Special Issues Nos. One and Two; there was insufficient evidence to support the jury’s findings in response to those issues; and the trial court erred in rendering judgment, in accordance with the jury verdict, that the conveyance between appellants and Intercontinental be declared void.

Appellants argue that appellees relied only upon a presumption arising from the failure to record the deed to Intercontinental, to support the submission of Special Issues Nos. One and Two. Appellants believe that when Mr. Radney denied any intent to hinder or delay and the representative of Intercontinental denied any notice of an intent to hinder or delay, there was insufficient evidence in the record to support either the submission of or the responses to Special Issues Nos. One and Two. We believe there is more than adequate circumstantial evidence to support the jury’s answers.

The secrecy of appellants and Intercontinental was one factor the jury could consider in answering the special issues. The deed was unrecorded and appellants did not reveal that the property had been conveyed until the eve of the first trial setting. The purchaser of the property, Intercontinental, was a corporation registered in a country whose laws prevented the disclosure of the name of the beneficial owner of the corporation.

The transaction differed from the usual method of selling a home. Appellants did not list the home for sale with any real estate broker. There was no earnest money contract. Radney prepared all of the documents associated with the sale. Mr. Putterill, the representative of Intercontinental, made no effort to find out what the physical characteristics of the house were or even if there actually was a house on the lot. The funds for the down payment came from an account over which Putterill had no control.

The fact that litigation involving the property was pending at the time of the conveyance may be considered by the jury as some evidence that the conveyance was fraudulent. Texas Sand Company v. Shield, 381 S.W.2d 48 (Tex.1964). This litigation was pending in January, 1982, when Mr. Radney first met with Mr. Putterill in the Caymen Islands. Intercontinental was formed on February 15, 1982, three days before the date on the deed from appellants to Intercontinental.

The jury was also entitled to look at the interest the Radneys retained in the property. Mr. Radney retained a second mortgage on the property and was unconcerned about Intercontinental’s ability to make its payments because he could foreclose on the mortgage. As part of the conveyance, Intercontinental leased the property back to appellants. Appellants continued to occupy the premises after the expiration of the term of the written lease.

Viewing all of these factors, we are unable to say that there was no evidence to support the submission of Special Issues Nos. One and Two to the jury. There was also legally and factually sufficient evidence to support the jury’s response to those issues and the trial court’s rendition of judgment in conformance with the verdict. Points of error six through twenty-three are overruled.

In points of error twenty-four through twenty-seven, appellants argue that the performance by them of the mandatory injunction is impossible because the property was conveyed to Intercontinental. Appellants’ argument is premised on the assumption that the fraudulent conveyance statute is inapplicable to our fact situation. As stated above, section 24.02 of the Business and Commerce Code does apply and there was sufficient evidence to support the jury’s answers to Special Issues Nos. One and Two. Since the trial court did not err in voiding the conveyance from appellants to Intercontinental, it is not impossible for appellants to perform the mandatory injunction. Points of error twenty-four through twenty-seven are overruled.

Points of error thirty-four and thirty-five concern whether the trial court erred in refusing to balance the equities in rendering its judgment. Appellants believe that the trial court erred in ordering that the second story of the garage be removed rather than allowing appellants to choose the least onerous method to bring the garage into compliance with the restriction.

We are aware that appellants spent a substantial amount of money on the garage construction. However, the fact that one landowner may suffer a greater injury due to the enforcement of the restriction does not compel refusal to enforce the restriction. Gunnels v. North Woodland Hills Community Association, 563 S.W.2d 334 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ). The granting of a mandatory injunction ordering the removal of non-conforming structures is a proper way to enforce deed restrictions. Viking Homes, Inc. v. Larkin, 452 S.W.2d 25 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ). Appellants have failed to show the trial court abused its discretion when it granted the mandatory injunction ordering that the second story of the garage be removed. See generally, Walker v. Race, 612 S.W.2d 685 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ); Mini-Tape, Inc. v. Fields, 566 S.W.2d 119 (Tex.Civ.App.— Houston [14th Dist.] 1978, no writ). We believe that the trial court did look at the competing interests before it ordered the removal of the second story of the garage. We cannot say that the trial court abused its discretion by entering the mandatory injunction. Appellants’ points of error thirty-four and thirty-five are overruled.

Point of error fifty is that the trial court erred in submitting Special Issue No. Four because the issue as submitted placed undue emphasis on the amount of work done, constituting a comment on the weight of the evidence by the trial court. Appel-lees sought attorney’s fees in connection with this suit. At the time of trial, TEX. REV.CIY.STAT.ANN. article 1293b provided :

(a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney’s fees in addition to the party’s costs and claim.
(b) To determine reasonable attorney’s fees, the Court shall consider:
(1) the time and labor required;
(2) the novelty and difficulty of the questions
(3) the expertise, reputation, and ability of the attorney;
(4) any other factor.

Special Issue No. Four asked the jury what sum of money, if any, do you find should be awarded to appellees “as reasonable attorney’s fees, for services rendered by Plaintiff’s attorney in relation to the amount of work expended....” The issue did not indicate an opinion of the court on the amount of attorney’s fees that should be awarded. Neither did the issue assume material disputed facts. While the issue could have included all of the factors set forth in the statute, we are unable to say that the issue as submitted constituted a comment on the weight of the evidence. Point of error fifty is overruled.

Appellants’ points of error forty-four through forty-nine attack the jury’s award of attorney’s fees. Appellants attack the sufficiency of the evidence to support the submission of Special Issue No. Three and the jury’s response thereto. Appellants also argue that appellees had to distinguish between the time spent on the fraudulent conveyance cause of action and the action to enforce the restrictive covenant.

There was sufficient evidence to support the submission of the special issue and the award of attorney’s fees. The record contains testimony from two attorneys as to the number of hours worked, the qualifications of the attorneys involved, and the reasonableness of the fee. As stated above, a litigant who is successful in asserting an action based on a restrictive covenant has a statutory right to be awarded reasonable attorney’s fees. There is both legally and factually sufficient evidence that the fees awarded were reasonable. Appellants believe that, under the statute, appellees could not recover for legal services rendered in relation to the fraudulent conveyance cause of action. We disagree.

The statute allows the recovery of attorney’s fees in an action based on a restrictive covenant. We believe that the fraudulent conveyance action was in part based on and related to the breach of the restrictive covenant. The home had been conveyed by appellants, shortly prior to trial, to a foreign corporation. In order to obtain the complete relief to which they were entitled because of the breach, it was necessary for appellees to have the fraudulent conveyance voided. The fraudulent conveyance action would not have been necessary if appellants had not conveyed the property in order to avoid the suit to enforce the restriction. In this situation, the entire suit was based on the breach of the restriction. Appellants’ points of error forty-four through forty-nine are overruled.

In point of error fifty-one, appellants argue the amount of attorney’s fees awarded was excessive and remittitur should be ordered. The amount of a reasonable attorney’s fee is a fact question to be determined by the jury. Jack Roach Ford v. DeUrdanavia, 659 S.W.2d 725 (Tex.App.—Houston [14th Dist.] 1983, no writ). Looking at the entire record, and viewing the matter in light of the testimony and the nature of the controversy, we are unable to say the award of attorney’s fees was excessive. Point of error fifty-one is overruled.

The judgment is affirmed.

      . This provision is now included in the Property Code. TEX.PROP.CODE ANN. § 5.006.


author: J. CURTISS BROWN, Chief Justice.

text:
    COMMERCE SAVINGS ASSOCIATION OF BRAZORIA COUNTY, Appellant, v. S/C MANAGEMENT 108, LTD., et al., Appellees.
    No. A14-83-775-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 27, 1984.
    Gary L. McConnell, Thomas & McConnell, Angleton, for appellant.
    B. Edward Williamson, Gillis, Walker, Drexler <& Williamson, Daniel C. Pappas, Kissner & Pappas, C. Henry Kollenberg, Schlanger, Cook, Cohn, Mills & Grossberg, Houston, for appellees.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is an appeal from a judgment that Appellant, Commerce Savings Association of Brazoria County, take nothing in its suit to enforce a note and written guaranty agreement. Appellant argues that the trial court erred in allowing the introduction of parol evidence to vary the terms of the written agreements and that there was an improper submission of special issues. Ap-pellees, S/p Management 108, Ltd. (S/C), S/C Investment Partners (Partners), E.J. Cummins, Jr., James T. Drake, Fred E. Miller, Barry W. Smith, Al B. Lum, and James C. Shindler, respond that there was sufficient, competent evidence to support the jury’s finding that there was an accord and satisfaction which precludes Appellant’s suit. We affirm.

In 1972, Appellant was the owner by foreclosure deed of a 61.5935 acre tract of land located in Harris County (the “Telge Tract”). Appellant sought to have the classification of the Telge Tract changed from property taken by foreclosure to collateral supporting a viable loan. On September 15, 1972, Appellant contracted with S/C acting by and through Partners to purchase the Telge Tract via an earnest money contract. The terms of the agreement called for a cash payment by S/C of $77,-000 and the execution of a promissory note in the amount of $331,000. Only $231,000 was to be considered disbursed and interest bearing. The remaining $100,000 was to be disbursed at a later time for development of the tract. The earnest money agreement also provided that the note be guaranteed by the individuals to the extent of one-half of the unpaid balance of the note.

The real estate note was renewed and extended several times. In October, 1974, Appellees sold eight acres of the tract to two Mexican nationals for $96,000. Of that amount, $50,880 was paid to Appellant as a principal payment on the note, leaving an unpaid principal balance on the note of $180,120. Appellant sent a notice to Appel-lees that an interest payment was due on March 22, 1975. That payment was not made. No further payments on either principal or interest were made by Appellees. Appellant foreclosed on the property by trustee’s sale and retook title by trustee’s deed dated June 1, 1976. On December 6, 1978, Appellant sold the property for $150,-000 to Richard V. Adkins, Trustee.

Appellant filed suit in February, 1979, to recover sums owing under the real estate note and guaranty. Appellees introduced evidence that representatives of Appellant made oral representations that the personal liability provisions contained in the note and guaranty would not be enforced by Appellant against Appellees. Appellant argued that the Parol Evidence Rule barred the introduction of such evidence. Appel-lees also introduced evidence that an agreement had been reached that if Barry Smith could procure a purchaser for the land at a price acceptable to Appellant, such procurement would be considered complete satisfaction of the disputed claim for payment of a deficiency.

The trial judge submitted special issues to the jury on the defensive theories of fraudulent misrepresentation and accord and satisfaction. The jury's answers to the special issues established that Appellant had made a fraudulent misrepresentation, that an accord and satisfaction had been reached, and that under the accord and satisfaction Appellant’s claim for a deficiency against the individuals was barred. Appellant appeals from the judgment rendered in favor of Appellees.

Appellant raises five points of error. In points of error four and five, Appellant attacks the findings that an accord and satisfaction had been reached. Point of error four is that the trial court erred in admitting parol evidence that Appellant agreed to compensate Smith for his brokerage services in the sale of the tract to Richard V. Adkins, Trustee, when such evidence served to vary the terms of the earnest money contract between Appellant and Adkins. Point of error five is that the trial court erred in submitting Special Issue No. Ten to the jury because there was no competent evidence that Appellant intended to release any of the Appellees from liability other than Smith.

Appellees introduced evidence of an oral agreement between Appellant and Smith whereby Smith was to obtain a purchaser of the property in return for a release from liability to Appellant. This testimony came from Smith, Adkins, and Daniel J. Goldberg. Appellant argues that the oral agreement is unenforceable.

Paragraph 9 of the written earnest money contract between Appellant and Adkins provided that:

The Purchaser and Seller warrant that no real estate commissions are due and payable in consummating this transaction. Further, there are no real estate brokers and agents involved in consummating this sale.

Appellant argues that the oral accord and satisfaction is unenforceable because it serves to vary the terms of a written contract and because it violates the statute of frauds applicable to suits for real estate commissions.

If Smith were suing for a commission for the sale of the property, the Parol Evidence Rule might preclude the admission into evidence of an oral agreement that varies the express terms of a written contract. However, Smith is not suing for a broker’s commission. The earnest money contract between Appellant and Adkins was not the subject of the claim by Appel-lees. The testimony was offered not to vary the terms of a written contract but to establish the existence of a separate accord and satisfaction. Therefore, the parol evidence rule is inapplicable.

We agree that a written agreement is necessary in order for a broker to bring an action for a commission for the sale or purchase of real estate. TEX.REV.CIV. STAT.ANN. art. 6573a, § 20(b) (Vernon Supp.1984). However, Appellees have not brought an action for the recovery of a real estate commission. We do not believe that article 6573a, § 20 prevents Appellees from raising the defense of accord and satisfaction. Appellant’s fourth point of error is overruled.

Special Issue No. Ten asked whether Appellant entered into an agreement with Smith that if Smith could procure a purchaser Appellant would release the Ap-pellees from a liability on the note and guaranty agreement. The jury found that Appellant made such an agreement. Appellant argues there is no evidence that it intended to release all of the Appellees. Smith testified that Appellant’s representative agreed to “release the liability on the note” if Smith found a buyer for the property. Adkins testified that Appellant’s representative said not to worry about Smith not getting a commission because “He’ll get off the hook on the liability for bringing you in as a buyer.” Goldberg, Adkins’ lawyer, testified'that “Smith would be released for his services.” None of the witnesses testified that only Smith was to have the benefit of an accord and satisfaction. With the record before us, we believe that a fact issue was created as to whether Appellant intended the satisfaction by Smith to cover all of the Appellees or only Smith. See generally, 1 Tex.Jur.3rd Accord and Satisfaction § 32 (1979). There was sufficient evidence to support the submission of Special Issue No. Ten. Point of error five is overruled.

Due to our disposition of Appellant’s points of error concerning accord and satisfaction, we do not address the points of error on the issue of fraudulent misrepresentation.

The judgment is affirmed.


author: ELLIS, Justice.

text:
    Gary Wayne FISHER, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-698-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 27, 1984.

      Kristine Woldy, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, Gary Wayne Fisher, appeals from a judgment of conviction for the felony offense of burglary of a habitation, enhanced by two prior felony convictions. In a joint trial, with co-defendant, Thomas Lee Gamble, the jury found appellant guilty and, finding the two enhancement paragraphs of the indictment true, assessed punishment at forty-five years in the Texas Department of Corrections. Appellant raises six grounds of error.

Ground of error one claims that the trial court erred in refusing to grant appellant’s motion to quash the first enhancement paragraph of the indictment. Appellant’s ground of error two asserts that the trial court erred in refusing to grant appellant’s Motion for Severance. Ground of error three contends that the trial court erred in denying a mistrial after the prosecutor, during jury argument, appealed to community expectations. As his fourth ground of error, appellant claims the trial court erred in allowing the prosecutor to bolster the identification made by his witnesses. In appellant’s fifth ground of error, he claims that the trial court erred in permitting the prosecutor to intellect his personal feelings and opinion into his jury argument on punishment. Appellant’s last ground of error asserts that the affirmative finding made by the trial court that a deadly weapon was used in the commission of the offense was error when no such issue was submitted to the jury and no such allegation was made in the indictment. We overrule appellant’s first five grounds of error, and agree with appellant’s sixth ground of error. We reform the judgment of the trial court and affirm as reformed.

The events leading to appellant’s arrest started when Shirley Irving, around midnight on April 29, 1983, observed an automobile stop across the street from her apartment and saw two men get out. She testified that she recognized the two men as appellant, Gary Wayne Fisher, whom she knew for thirteen years, and co-defendant, Thomas Lee Gamble, whom she knew for twelve years. Irving testified that about ten minutes after she saw appellant and co-defendant Gamble arrive, she heard a noise “like someone was kicking in a door.” Irving called the police to report a burglary in progress. She testified that she saw co-defendant Gamble carrying clothes and shoes to a car, and then returned to the apartment building across from Irving’s apartment. The police arrived and Irving said she heard what sounded like a gunshot. Irving later identified both appellant and co-defendant Gamble when police brought them to the scene for identification.

Wally Posey, the complainant, testified that he woke up around midnight on April 29,1983, to find two people in his bedroom. He recognized both Fisher and Gamble, having previously known them. Co-defendant Gamble placed a pistol to Posey’s head and demanded money. Gamble told appellant to hit Posey if he moved. Gamble put a pillow over Posey’s head. Posey testified that Gamble found and took his wallet and money. Posey said that he heard the noise of a door being kicked in and, as he turned his head, appellant hit him across the hand with a piece of metal. Posey testified that the two men took clothing and shoes from his apartment. Both appellant and co-defendant Gamble rushed from Posey’s apartment when the police arrived. On Posey’s way out to see what was happening outside, he noticed his television and AM/FM radio at the bottom of the staircase. Outside, Posey found the police, who had appellant in custody. Posey identified appellant and told them that Gamble could be found at the Sampson Motel. Posey was taken to the motel to identify Gamble. Posey also claimed some clothes and shoes which were found in the car that Irving saw appellant and Gamble get out of.

One of the arresting officers testified that as he got out of his car, he saw someone look out of the window of Posey’s apartment. Moments later, he saw two men run out of the building. The officer chased them and apprehended appellant. The officer testified that Posey identified appellant and told them Gamble could be found at the Sampson Motel. An officer searched the car outside Posey’s apartment and found personal articles which were claimed by Posey. The officers proceeded to the Sampson Motel and talked to Denise Carol, later identified as Gamble’s common law wife. She told the officers that Gamble was not home, but he would return in a few hours. The police returned to the Sampson Motel and arrested Gamble.

Gamble, who denied any part in the burglary, testified on his own behalf. He testified that he had been with Carol that evening in the Sampson Motel. He said he left the motel for another motel, the El Orbit Motel, where he spoke with the manager. From there, he went to a bootleg house and then home. The manager of the El Orbit Motel testified that he spoke to Gamble that evening and Gamble did not appear to be sweating or excited. Appellant did not testify.

The jiiry found both appellant and co-defendant Gamble guilty. At the punishment hearing, appellant renewed his motion to quash the first enhancement paragraph of the indictment, which was denied, but succeeded in arranging the deletion of the reason for the probation revocation from the judgment of his 1980 heroin conviction contained in the penitentiary packet offered by the State as State’s Exhibit No. 9. The jury found the two enhancement paragraphs true and assessed appellant’s punishment at forty-five years confinement.

In ground of error one appellant alleges that the trial court erred in denying appellant’s motion to quash the first enhancement paragraph of the indictment. The motion alleged that the 1980 conviction alleged in the first enhancement paragraph was for possession of heroin. The original punishment imposed for appellant’s heroin possession was probation. However, appellant’s probation was revoked for alleged possession of oxycodine hydrocloride, which appellant claims is a substance not listed in the Controlled Substance Act or the Dangerous Drugs Act. Appellant alleges that the probation revocation was fundamentally defective because the offense used to revoke the probation was not an offense. Therefore, the 1980 heroin conviction could not be used to enhance punishment. At the punishment hearing, appellant moved to delete the reason for the revocation of probation in the judgment contained in the penetentiary packet offered by the State in State’s Exhibit No. 9. The trial court whited out the reason for the revocation of probation from the judgment. Appellant also renewed the motion to quash the enhancement paragraph. The court denied this motion. As presented to the jury, the proof of the first enhancement allegation did not show the cause of the probation revocation. We cannot find that the trial court erred since there is a lack of proof, and sufficiency of the evidence cannot be attacked collaterally.

Appellant filed an unverified motion to quash. Appellant made no attempt to prove any of the allegations in the motion. In Taylor v. State, 612 S.W.2d 566 (Tex.Crim.App.1981), the court refused to find an abuse of discretion in the trial court’s action because the appellant did not furnish the court with a bill of exception or a record of the hearing which led to the objectionable ruling. In the present case, appellant has not presented proof by a record of a hearing, or any other form. Allegations in the briefs, unsupported by the record, cannot be accepted as fact in a criminal case. Devereaux v. State, 473 S.W.2d 525 (Tex.Crim.App.1971). Appellant’s first ground of error simply has not been properly preserved or presented for review.

Additionally, this court cannot find that the trial court erred in denying appellant’s motion to quash the first enhancement paragraph because it is a prohibited collateral attack on the sufficiency of the evidence. Dinnery v. State, 592 S.W.2d 343 (Tex.Crim.App.1980); Ex parte Easter, 615 S.W.2d 719 (Tex.Crim.App.1981); Ex parte Binder, 660 S.W.2d 103 (Tex.Crim.App.1983). Appellant alleges that collateral attack is permissible, citing Ex parte Wong, 612 S.W.2d 548 (Tex.Crim.App.1981); Ex parte Perez, 618 S.W.2d 770 (Tex.Crim.App.1981). However, appellant cites cases in which collateral attack was allowed because a fundamentally defective indictment was involved. In the case at bar, appellant is attacking the judgment. Specifically appellant attacks the revocation of his probation, not the indictment.

In appellant’s second ground of error, appellant claims that the trial court erred in denying appellant’s motion for severance. We do not find that the trial court abused its discretion in denying the severance. Appellant claims he was prejudiced because co-defendant Gamble testified and admitted to prior misdemeanor theft convictions, while appellant did not testify. He argues he was prejudiced when co-defendant Gamble presented a defense witness who admitted to being a prostitute. Since a joint trial was held, appellant was given only six premptory challenges. Appellant alleges he was prejudiced because he was given a limited number of challenges. Additionally, appellant claims he suffered prejudice because the trial court and the prosecutor spoke of the two defendants jointly and the identification testimony as to co-defendant Gamble was much stronger than against appellant. Lastly, appellant argues he was prejudiced by a joint trial because co-defendant Gamble’s acts were much more severe. Appellant presented his allegations in a pre-trial motion and in his motion for new trial. Tex. Code Crim.Pro.Ann. art. 36.09, (Vernon 1981), provides:

Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.

Appellant and co-defendant Gamble both had previous convictions, so there was no absolute right to a severance. Bolding v. State, 493 S.W.2d 186 (Tex.Crim.App.1973). Appellant in his brief admits that the record does not contain specific evidence offered at the time the motion was originally overruled. Appellant argues that the evidence presented to the jury shows that the joint trial was prejudicial to appellant. Where no evidence was offered in support of the motion, no error is shown in the absence of such evidence offered at the time the motion was presented and overruled. Sanne v. State, 609 S.W.2d 762 (Tex.Crim.App.1980); Ransonette v. State, 550 S.W.2d 36 (Tex.Crim.App.1976); Nelson v. State, 503 S.W.2d 543 (Tex.Crim.App.1974).

In appellant’s third ground of error, he claims that the trial court erred in denying a mistrial when the prosecutor appealed to community expectations in his punishment argument before the jury. Appellant objected at trial to the following statements made by the prosecutor:

“... I’m angry, ladies and gentlemen, because I’m speaking for the citizens of this community, which we all are. I’m speaking for the law-abiding citizens of this community. I’m speaking for the citizens who are tired of crime in this county. I’m speaking for the citizens who are tired of criminals walking the streets even after being caught. We’re tired of it, ladies and gentlemen.”

We hold that the trial court made no error in denying a mistrial. Pleas of law enforcement have been accepted as a permissible area of jury argument. Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973); Minafee v. State, 482 S.W.2d 273 (Tex.Crim.App.1972). The prosecutor’s argument is similar to the arguments approved in Starvaggi v. State, 593 S.W.2d 323 (Tex.Crim.App.1979) (“... I hope he doesn’t come knocking on one of your doors at eight o’clock in the evening — ); DeBolt v. State, 604 S.W.2d 164 (Tex.Crim.App.1980) (“What I’m mainly concerned with is he is not out among the public, living next door to me or next door to anybody else.”); Sanchez v. State, 622 S.W.2d 491 (Tex.App.—Corpus Christi 1981, pet. granted), 628 S.W.2d 780 (Tex.Crim.App.1982), aff’d. 655 S.W.2d 214 (Tex.App.1983) (“Would you be standing next to him the next time he went beserk or one of your children or one or [sic] your friends?”). The prosecutor’s comments constituted a proper plea of law enforcement.

Had there been any error, we still would have to overrule this ground of error because the trial judge instructed the jury not to consider the prosecutor’s statement concerning what the citizens demand. Any error was cured. Parr v. State, 606 S.W.2d 928 (Tex.Crim.App.1980); Zataraus v. State, 666 S.W.2d 294 (Tex.App.—Houston [14th Dist.] 1984, no pet.).

In ground of error four, appellant claims that the trial court erred in permitting the prosecutor to repeatedly attempt to bolster the identification made by his witnesses. After Posey, the victim, had testified about his own identification of the co-defendants, the prosecutor asked him the following:

Q. Were you present when Shirley Irving was shown the suspect, Thomas Gamble?
A. Yes, sir.
Q. You were present at the time?
A. Yes, sir.
Q. Was Ms. Irving able to identify Thomas Edward Gamble as Thomas Edward Gamble?
A. Yes, she did.
Q. Was Gary Wayne Fisher shown to Shirley Irving?
A. Yes.
Q. Were you present when that occurred?
A. Yes.
(objection to further bolstering interposed and sustained).
The next witness to testify was Houston Police Department officer Casey. The prosecutor asked the following of him:
Q. Were you present when the defendant Fisher was shown to Ms. Irving?
A. Yes.
Q. And how did that occur?
A. She just looked through the window of my car.
(Objection to bolstering interposed and sustained).
Then with Terry Cobbs, another Houston Police officer, on the stand, the prosecutor added the following:
Q. And it’s true, Officer, that in your presence Mr. Posey identified Gary Wayne Fisher as the person who— one of the persons—
(objection as to bolstering interposed and sustained instruction to disregard given, mistrial denied).
Q. And it’s true that the suspects in this offense were caught and identified collectively—
(objection interposed and sustained).

The court again instructed the jury to disregard. Appellant argues that a reversal is necessary due to the repeated efforts to bolster the identification made by the witnesses. Alleged improper and repeated comments to the jury followed by instructions not to consider the remark have not resulted in a reversal. Thomas v. State, 578 S.W.2d 691 (Tex.Crim.App.1979). We find no reason to reverse the instant case because of alleged attempts to bolster the identification made by a witness.

By his fifth ground of error, appellant asserts that the trial court erred in allowing the prosecutor to interject his personal feelings and opinions into his argument on punishment before the jury. Specifically, appellant objects to the prosecutor’s comment after he asked the jury to assess life imprisonment. The prosecutor told the jury, “If I seem to have gotten angry, ladies and gentlemen, I’m just shocked. I’m outraged for the citizens of this community.” Appellant also objects to the prosecutor’s alleged attempt to place himself in the jury box by asking, “Are we going to let these individuals tell us what to do?” The prosecutor’s statements are within the permissible area of jury argument because it is a plea of law enforcement. Starvaggi, 598 S.W.2d 323; Debolt, 604 S.W.2d 164; Sanchez, 622 S.W.2d 491. Again, we hold had there been any error, it was cured by the trial judge’s instruction to the jury to disregard. Thomas, 578 S.W.2d 691; Zataraus, 666 S.W.2d 294.

Appellant’s sixth ground of error alleges that the trial court erred in making an affirmative finding that a deadly weapon was used in the commission of this offense when no such issue was submitted to the jury and no such allegation was made in the indictment. The indictment does not contain any allegation of the use of a deadly weapon. The charge of the court does not contain any reference to a deadly weapon. The jury found appellant guilty as charged in the indictment. Therefore, the jury made no finding that a deadly weapon was used. The trial court, however, found that a deadly weapon, a firearm, was used during the commission of the offense. Its finding is contained in the judgment. An affirmative finding as to whether a firearm was used during the commission of an offense must be made by the jury when the jury is the trier of fact. Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim.App.1982). In Barecky v. State, 639 S.W.2d 943 (Tex.Crim.App.1982), the court reformed a judgment in which the court made an improper finding of deadly weapon use. In Barecky, as in the instant case, the improper entry was made after appellant was found guilty and after the jury assessed punishment. The court’s finding in both cases had no effect on the verdict or punishment. This court has the power to reform and correct the judgment as the law and nature of the case may require. Tex.Code Crim.Pro.Ann. art. 44.24(b) (Vernon Supp.1983). Accordingly, the judgment is reformed and corrected by deleting the following “... and the Court further found that a deadly weapon, to wit, a firearm, was used during the commission of this offense".

As reformed, the judgment is affirmed.