author: SEARS, Justice. ROBERTSON, Justice,

text:
    Randolph Lewis STEWART, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-203-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Bradford Yock, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
   OPINION ON MOTION FOR REHEARING EN BANC

SEARS, Justice.

On Motion for Rehearing, En Banc, the original opinion is withdrawn and the judgment of the Trial Court is reversed and remanded.

This case involves the question of whether a warrantless entry by police into the private apartment of Appellant was justified under the “emergency doctrine.”

Appellant was convicted, in a trial to the court, of manufacturing methamphetamine. He received a probated sentence and a $4000 fine. The conviction was affirmed by two justices of this court and a dissent was written by Justice Ellis. Appellant timely filed a motion for rehearing, en banc, which was granted.

Appellant and a co-defendant, Green, were tried separately and both were convicted of manufacturing methamphetamine. On appeal, Green’s conviction was reversed. Green v. State, 666 S.W.2d 291 (Tex.App.-Houston [14th Dist.] 1983, no pet.). The opinion in Green concluded the stipulation of evidence was invalid as it lacked the signature of the trial judge, and warrantless entry was not justified under the emergency doctrine. In the first Stewart opinion, the majority concluded an “emergency” existed, therefore a warrant-less search was justified, and the introduction into evidence of contraband seized was lawful and proper.

Appellant raises five grounds of error, however our treatment of the first ground of error is dispositive of this case. Appellant complains in ground of error one that the trial court erred in holding that the warrantless entry of the apartment was lawful. We agree, and ground of error one is sustained.

Before we reach the “emergency” issue, we feel it important to respond to the State’s position that Appellant cannot complain about the introduction of evidence because Appellant executed a “Stipulation of Evidence” and thereby agreed that the court could base its finding of guilt or innocence on this evidence. The Appellant handled the trial and the stipulation correctly, as he followed the instructions of this court in Zappas v. State, 650 S.W.2d 131 (Tex.App.-Houston [14th Dist.] 1982, pet. granted). It must be understood that a “Stipulation of Evidence” is not an agreement that the evidence or testimony is admissible or that the testimony is truthful. It is merely an agreement to waive cross-examination of witnesses and agree that the written version of their testimony is the same as it would be if they were present in the courtroom. Further, in this case, the Stipulation of Evidence contained the following language:

The parties agree that the Defendant does not waive his right to complain of the legality of the search or warrant in this cause.

It is clear that Appellant at all times complained of the court’s error in overruling the Motion to Suppress and in admitting evidence seized pursuant to the unlawful entry into Appellant’s apartment. It is also clear that the court and the State understood and agreed to Appellant’s right to appeal that ruling of the court.

In addition to the Stipulation of Evidence, the record contains the statement of facts from the hearing on the Motion to Suppress and the tape recording of conversations with the Houston Fire Department (H.F.D.) and the Houston Police Department (H.P.D.). The record establishes that a resident of an apartment complex called the H.F.D. at 8:59 a.m. complaining of a “gaseous odor” in the area. Mark Key, an eight year veteran of H.F.D., responded with a unit, discovered the complex was completely electrical, and ruled out the possibility of a natural gas leak. Key talked with the couple who made the complaint and learned they had been bothered by this order for the past week. Key determined the odor was ether, but a walk-around of the complex failed to locate the source. Key had never encountered any problems or responded to any emergency calls regarding ether. He recognized the odor because he had previously purchased it at an auto parts store and used it on his car. He called the H.F.D. dispatcher, and reported “a definite smell of ether all through the apartments.” He reported the complainant “smelled it every night and suspected someone was making dope.” He requested instructions on what course of action to take. The dispatcher talked with the chief dispatcher who advised that the people call H.P.D. and said, “The best thing to do is to let him (complainant) handle it on his end, and tell him there’s really nothing we can do about it.” Key told the couple to call H.P.D. and returned to the fire station confident that no emergency existed.

The couple then called H.P.D. and reported the smell of ether, the suspicion of dope and related that H.F.D. had responded, found no emergency and advised them to call H.P.D. Officer Shirley of H.P.D. responded, smelled a strong odor of ether, and from his past experience in narcotics, suspected a methamphetamine laboratory. Shirley investigated and discovered apartment 69 to be the source of the ether. A “cloud” of ether was seen on the patio of the apartment and appeared to emanate from the doors and/or windows of apartment 69. The record is not clear at this point whether Shirley or some other police officer called the Harris County District Attorney’s office. However, someone talked to an assistant district attorney who advised him to call H.F.D. Officer Shirley at this time called H.F.D. from the complainant’s apartment, and talked to Key. Key advised Shirley that ten to fifteen minutes earlier he had investigated the ether odor and found no emergency situation. Shirley stated that the odor was much stronger now and that apartment 69 was the source. Key advised that, if the odor was “that strong,” Shirley should knock on the door of the apartment, and if no one answers, to enter and air out the apartment. Shirley then called H.P.D., reported locating the source of the ether, and stated “we’re going inside to check it out.” Shirley then proceeded to apartment 69, knocked on the door, and waited ten minutes before Appellant opened the door. The “cloud” and the smell were stronger when the door was opened and Shirley immediately rushed past Appellant, entered the apartment without consent, opened windows and saw “in plain view” a methamphetamine laboratory. Appellant and Green were placed under arrest, other officers were called to the scene, a search warrant was obtained, and the evidence was seized.

For purposes of this appeal, we find it unnecessary to deal with the issuance of the subsequent search warrant. Shirley’s warrantless entry was either good or bad in law the instant it was made. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Therefore, the subsequent issuance of a search warrant cannot justify a previous unjustifiable act and make evidence admissible that is otherwise inadmissible. A “search” occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, - U.S. -, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984).

We must first approach this appeal with the viewpoint that any search conducted outside the judicial process, and without prior approval of a judge or magistrate, is per se unreasonable under the Fourth Amendment to the Constitution of the United States. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We next look to specific exceptions to the above rule to determine if our facts fall within these well delineated exceptions. There are three exceptions under which a warrantless search and seizure can be held justified: (1) “Plain view” doctrine, (2) “consent,” or (3) “emergency” doctrine. Root v. Gauper, 438 F.2d 361 (8th Cir.1971). The “plain view” doctrine carries with it the requirement that the officers have the right to be where they are when they first “view” the evidence in question. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). This exception will apply only if we find that Shirley had a right to be in Appellant’s apartment in the first place. There is nothing in the record to show that the lab was visible from outside the apartment. Further, the “consent” exception cannot help the State because there is no evidence to support a claim that Appellant or any one else consented to Shirley’s entry of Appellant’s apartment. We are therefore left with the “emergency doctrine” exception as the only avenue available to the State to justify the introduction into evidence of the items seized.

The emergency doctrine originated in dictum in Justice Jackson’s opinion in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1947):

There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.

The U.S. Supreme Court expanded on the foregoing by establishing an emergency exception when an officer hears a cry for help and demands entrance in the name of the law. McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). Since that time, the emergency doctrine has been applied in many varying circumstances, however they all fall into one of three categories:

(1) to render emergency aid or assistance to persons whom they reasonably believe to be in distress or in need of assistance.
(2) to prevent the destruction of evidence or contraband.
(3) to protect the officers from other suspects or persons whom they reasonably believe may be present, and if so, they reasonably believe may be armed and dangerous.

In applying the facts of this case to the foregoing categories of emergency exceptions, we can immediately eliminate (2) and (3). Officer Shirley testified that he had no reason to believe Appellant or anyone else was disposing of contraband, and, there is no evidence in the record to indicate that Shirley believed there was anyone armed and dangerous in the apartment. Therefore, in order for officer Shirley’s warrantless entry into Appellant’s apartment to be justified, officer Shirley must have entered to protect the occupants of the apartment from harm or to render aid and assistance if he reasonably believed them to be in distress.

An objective standard as to the reasonableness of the officer’s belief was established in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968):

In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that in-trusion_ And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search, warrant a man of reasonable caution in the belief that the action taken was appropriate?

Applying the above standard to the instant case, we conclude the action of Shirley was not justified by any emergency condition. Shirley, in response to a leading question by the State, testified that his primary concern was for the safety of the people inside apartment 69 and the residents of all the apartments. However, his following actions contradict his alleged motives:

(1) Shirley smelled ether and suspected a methamphetamine laboratory.
(2) He took the time to call or have someone call the Harris County District Attorney’s office for advice pri- or to entering the apartment.
(3) On the advice of an assistant district attorney he called H.F.D.
(4) H.F.D. advised him to enter the apartment if no one answered the door.
(5) He testified he would have entered the apartment regardless of what H.F.D. advised.
(6) He took the time to call H.P.D. and advise the dispatcher he was entering the apartment.
(7) He knocked on the door of apartment 69 and waited 10 minutes for Appellant to open the door.
(8) He failed to get a pass key from the security guard or apartment manager and immediately enter apartment 69.
(9) He failed to inquire of Appellant if he was in need of aid or assistance before entering the apartment.
(10) He failed to determine if any other persons were in the apartment and in need of aid or assistance before entering the apartment.
(11) There is no evidence that anyone in the entire complex was in need of aid or assistance and there is no reasonable belief that anyone was.
(12) He failed to notify H.F.D. of any emergency that threatened the lives of the residents of the complex. The first time he called Key he was seeking advice, and the second call was to report finding a dope laboratory.
(13) He failed to notify H.P.D. of any life threatening emergency, instead he told them he suspected dope and was going in.
(14) He failed to take any precautions or to seek any assistance to remove any persons from a potential danger zone.
(15) He did not respond immediately to what he claimed was an emergency situation.

The gist of all of the case law dealing with the emergency exception is the need to act immediately, thus negating the possibility of obtaining a search warrant. The only reasonable justification for an exception to the per se unreasonableness of such a warrantless intrusion is the emergency of the situation. The actions of Shirley do not lead us to believe that he reasonably believed an emergency existed. Even if he thought Appellant and others were overcome by ether in the apartment, and entered to give them aid and assistance, this “emergency” terminated the minute Appellant opened the door. The record contains no evidence that Appellant or Green were in need of aid or assistance. We cannot, even in retrospect, reasonably conclude any other residents were in any “immediate” danger.

The facts in this appeal are very similar to those in Bray v. State, 597 S.W.2d 763 (Tex.Crim.App.1980). In both cases, persons specially trained to handle the “emergency” were on the scene prior to the arrival of the police. In both cases the trained persons concluded no emergency existed and left the scene. In both cases the police could have requested consent to enter and failed to do so. In both cases the unjustified entry was, at least in part, motivated by the belief a crime had been committed. The Bray court noted:

There is a difference between rendering emergency aid and investigating the possibly criminal cause of the emergency.' The emergency doctrine justifies the former, but it does not always justify the latter.

See also Root v. Gauper, 438 F.2d 361 for a similar fact situation.

In Provost v. State, 631 S.W.2d 173 (Tex.App.-Houston [1st Dist.] 1981, pet. ref’d), the State contended an emergency justified a warrantless entry into a home. The court of appeals rejected that contention because the police did not act immediately, but instead they: (1) telephoned the District Attorney, (2) telephoned the fire department, and (3) waited ten minutes before entering.

The unauthorized physical entry of a person’s home is the chief evil against which the wording of the Fourth Amendment is directed. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), see also Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

In summation, it appears the only valid test to determine the reasonableness of officer Shirley’s actions is to balance the need to enter against the constitutionally protected right violated by such intrusion. The burden of proof is on the State to show that “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. at 456, 69 S.Ct. at 193. The State has failed in this burden.

The judgment of the Trial Court is reversed and remanded for a new trial.

ROBERTSON, Justice,

dissenting.

Believing the majority opinion does not correctly apply the law authorizing a war-rantless search based upon exigent circumstances to the undisputed facts of this case, I respectfully dissent.

Both appellant and the state have briefed and argued this case upon the basis of whether the facts created exigent circumstances and an emergency authorizing a warrantless search. Since I agree, without any question, that they do, my discussion assumes there was a search. Not addressed by any of the parties or the court is the issue of whether this was an emergency intrusion, as opposed to an emergency search as enunciated in the cases of Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971), and Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). In Wyman, the supreme court held that a government intrusion for a purpose other than criminal investigation is simply not a search at all and the fourth amendment is totally inapplicable. In Cady the supreme court overruled a challenge to a warrantless search on the ground that the purpose of the police intrusion was to perform “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” See: Bacigal, The Emergency Exception to the Fourth Amendment 9 U.Rich.L.Rev. 249 (1975).

Prior to trial a lengthy hearing was held on appellant’s motion to suppress, but before ruling on the motion, the trial judge died. When this case was called for trial, appellant plead not guilty and entered into a lengthy written stipulation of evidence consisting of some six typewritten legal sized pages, agreeing that that evidence, along with the evidence heard by the court on the motion to suppress, would be the evidence “and provide the factual basis for the court’s determination of the guilt or innocence of the Defendant.”

I have difficulty understanding the majority’s statement of the evidence. My complaint is that the majority gives undue consideration to minor details and inconsistencies in the live testimony developed at the motion to suppress and apparently never considers the written stipulation of evidence introduced at trial. However, in my opinion, appellant closed the door to any argument over the facts as to whether an emergency existed when he personally signed, along with his attorney, the stipulation of evidence agreeing “that if the below-named witnesses were called, sworn and questioned, that they would give testimony in this case as set out below.” For this reason I am content to rely upon and “find” the evidence from this written stipulation, supplemented, where appropriate, by the suppression hearing testimony not reflected in the written stipulation. Additionally, appellant did not testify at either the motion to suppress or trial. Therefore, I find no dispute in the basic facts which form the basis for a finding of exigent circumstances.

Since the lawfulness of the search depends upon whether there were exigent circumstances or an emergency authorizing a warrantless entry into the apartment, the facts before the trial court must be set out in some detail. This written stipulation of evidence shows that Houston Police Officer Shirley was dispatched to a large apartment complex at 2800 West T.C. Jester in the city of Houston regarding complaints of “a strong chemical odor that was making them physically ill;” that he personally inspected the area and determined “a strong chemical aroma of ether” was coming from apartment 69.

The stipulation further shows that Shirley contacted Captain Key of the Houston Fire Department “who was alarmed by Shirley’s report;” that he returned to apartment 69 and “observed a gaseous cloud emanating from the patio door of apartment 69 and smelled a very strong odor of ether” with which he was familiar and which he knew to be “extremely flam-able” [sic], and being “concerned for the safety of the inhabitants of the entire apartment complex,” (emphasis added) he knocked on the door and after approximately ten minutes appellant opened the door; that when the door was opened he “detected an even stronger odor of flamable [sic] ether inside the apartment 69;” and that he immediately entered and opened windows “to afford maximum emergency ventilation.” Once inside Officer Shirley, who had previously worked in the narcotics division and had observed clandestine laboratories for the manufacture of methamphetamine, “immediately recognized in plain view a collection of chemical apparati, which, combined with the ether odor Shirley knew was an essential ingredient in the manufacture of many narcotic drugs, led Shirley to believe that amphetamine [sic] was being manufactured.” The stipulation further recites that the only two occupants of the apartment, appellant and a female, were placed under arrest and a search and arrest warrant was obtained.

As a result of the search under the warrant “18 pieces of glassware including flasks, beakers, and jars, methylamine (which Shirley knew was a raw material necessary to the manufacture of methamphetamine), thermometers, funnels, heating and stirring devices, clamps, tubing and liquid powder substances” were recovered from the apartment. The stipulation further recites that in Shirley’s opinion “the manner in which the various glass instruments and beakers and flasks were assembled on various instruments of heating and mixing were designed for the manufacture of methamphetamine.” In addition, Shirley recovered from the apartment “a series of typed and handwritten notes containing chemical formulae.” It was stipulated that the chemist would testify that these notes were a “step by step guide for the manufacture of methamphetamine, which, if followed, would result in the successful manufacture of methamphetamine, and which would require the use of the various items of chemical supply (glassware, tubing and heating mantles) and chemical substances (methalymine [sic], lye) found in apartment 69.” The stipulation further provided that the chemist recovered liquid methamphetamine, “an intermediate stage in the manufacture of methamphetamine” and powdered methamphetamine from the apartment.

Appellant at trial introduced as “Defendant’s Exhibit No. 1” a transcript of the testimony adduced on his motion to suppress. From this transcript we additionally learn that the “reportees,” occupants of nearby apartment 76, first called the fire department at 3:59 a.m. on the morning in question. They complained of an odor making them sick; that they had smelled the same odor for several days; that the fire department responded and Fire Captain Key determined the apartment complex was “total electricity” and did not have gas service; that he detected a “faint odor of ether” but could not find the source and returned to his fire station. The evidence further shows that the reportees then called the police department and Officer Shirley arrived at the apartment complex at approximately 4:20 a.m. and that after investigating the source of the odor, he called Captain Key.

It is unclear from Key’s testimony as to his instructions to Shirley regarding entering the apartment, however, appellant introduced into evidence a transcription of tape recorded conversations between Key and his dispatcher (made at 5:22 a.m., on the morning in question when Key had returned to the apartment complex) in which Key informed his dispatcher “I told them that it was a hazard,” and acknowledged to his dispatcher that “it’s (the smell of ether) strong.” Finally, two additional facts for consideration are: (1) Shirley testified that he was just about to kick the door in when appellant answered his knock; (2) in addition to being extremely flammable, the evidence showed ether “puts you to sleep.”

The law is clear and the majority opinion recognizes that an objective standard of reasonableness must be used in assessing an officer’s belief that a warrantless entry was justified by exigent circumstances. Root v. Gauper, 438 F.2d 361 (8th Cir.1971), citing with approval and applying this standard adopted by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) to a search under the emergency doctrine. The court of criminal appeals has likewise recognized this standard. Bray v. State, 597 S.W.2d 763 (Tex.Crim.App.1980).

The fallacy of the majority opinion lies in the fact that while it recognizes the “objective standard” test, it refuses to apply it. In fact, the majority opinion states: “Shirley, in response to a leading question by the state, testified that his primary concern was for the safety of the people inside apartment 69 and the residents of all the apartments.” First of all, the stipulated evidence was that Shirley was “concerned for the safety of the inhabitants of the entire apartment complex.” Second, if an objective test is applied, it wouldn’t matter what his concern was, primary or otherwise, for the reason this is subjective, not objective. As the court said in United States v. Callabrass, 607 F.2d 559 (2nd Cir.1979): “We do not see, however, how Cassidy’s subjective intention controls the question of whether there were exigent circumstances justifying the warrantless entry.” The Supreme Court, last Term, came to a similar conclusion as the D.C. Circuit did in Callabrass when deciding the “public safety” exception to Miranda warnings, The Court stated:

In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. Undoubtedly, most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives — their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect.

New York v. Quarles, - U.S. -, 104 S.Ct. 2626, 2630, 81 L.Ed.2d 550 (1984).

However, to compound the error further, the majority opinion then lists fifteen “actions [which] contradict his alleged motives.” Not a single one of these “actions”, except the first part of the first one (Shirley smelled ether) has anything to do with whether an emergency existed. A brief comment on each of these “actions” used by the majority to defeat a finding of emergency is appropriate.

In the first numbered “action”, the majority points out that Shirley suspected a methamphetamine laboratory. This exact fact has been held to have no bearing on the issue of exigent circumstances. Callabrass, 607 F.2d at 559. Likewise it should have no bearing in this case.

In actions numbered (2), (3), (4), (5) and (6) the majority points out that Shirley took time to contact the district attorneys office and the Houston Fire Department, the advice he received from each and Shirley’s subjective intent. None of these “facts” have any bearing upon whether an emergency existed. The majority apparently assumes Shirley determined an emergency existed when he arrived on the scene. The facts do not support this conclusion. It was only after appellant opened the door in response to his knocking that it was finally determined — at that moment — that an emergency existed. Appellant stipulated the facts to be that when he opened the door, Shirley “detected an even stronger odor of flamable [sic] ether inside the apartment 69” and that Shirley entered “to afford maximum ventilation” by opening the windows.

In actions (7), (8), and (15) the majority points out that the officer knocked on the door for some ten minutes, failed to get a pass key and immediately enter or “respond immediately”. The majority places undue weight upon the time element. In Callabrass, 607 F.2d at 559, the fact that the officers waited some four hours for the arrival of an experienced narcotics officer did not detract from a finding that exigent circumstances existed. Similarly in United States v. Brock, 667 F.2d 1311 (9th Cir.1982), there had been visual surveillance of a suspected mobile methamphetamine lab “throughout the afternoon”. Later, after certain unusual activity was observed, another officer arrived and following a discussion between the officers for ten minutes, the officers decided exigent circumstances existed and ordered the occupants out and searched. The court of appeals, en banc, found an emergency existed and the United States Supreme Court denied certio-rari. And finally in United States v. Williams, 630 F.2d 1322 (9th Cir.1980), a finding of exigency to search a motor home five hours after the arrests were made was justified, based on the need of agents to enter to check on the explosiveness of the chemicals.

In actions numbered (9) and (10) the majority points out that the officer “failed to determine” if appellant or anyone else in the apartment was in need of assistance before entering. The majority opinion is in error in looking only to the “needs” of appellant and his companion to find exigent circumstances. As pointed out above appellant agreed in his stipulation that the officer was “concerned for the safety of the inhabitants of the entire apartment complex.”

Finally in actions (11), (12), (13) and (14) the majority points to lack of evidence that anyone in the apartment complex was in need of assistance and the failure of the officer to take certain actions. These issues are totally immaterial. It was incumbent upon the officer “to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant a man of reasonable caution in the belief that the action was appropriate.” The trial judge had to weigh these facts against an objective standard. We must do the same.

Ether is an extremely volatile, highly flammable liquid derived from the distillation of ethyl alcohol with sulphuric acid.Indeed, the Grecian root word from which “ether” is derived means “to ignite,” “to blaze.” Webster’s 9th Collegiate Dictionary. In judging the articulable facts pointed out by the officer, neither the trial court nor this court can close its eyes to reality. The test relied upon by the majority commands that we apply the “man of reasonable caution” test. As Chief Justice Burger of the Supreme Court stated in an opinion authored by him while sitting on the Court of Appeals for the D.C. Circuit:

The appraisal of exigent circumstances surrounding .... forcible entries without a search warrant presents difficult and delicate problems. These cases do not arise in the calm which pervades a courtroom or library. They are rarely if ever seen by courts except in eases where criminal activity has been uncovered by the challenged police actions. They are not matters resolved by meditation and reflection of the participants. The events are likely to be emotion-charged, filled with tension, and frequently attended by grave risks. Neither the Constitution, statutes or judicial decisions have made the home inviolable in an absolute sense. Collectively they have surrounded the home with great protection but protection which is qualified by the needs of ordered liberty in a civilized society. Breaking into a home by force is not illegal if it is reasonable in the circumstances.... The need to preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency ... When policemen, firemen or other public officers are confronted with evidence which would lead a prudent and reasonable official to see a need to act to protect life or property, they are authorized to act on that information, even if ultimately found erroneous.

Wayne v. U.S., 318 F.2d 205 (D.C. Circuit 1963).

In view of the fact that while this case has been pending in this court an illegal methamphetamine laboratory has been blamed for an explosion and fire causing in excess of one million dollars damage to a large apartment complex not far removed in distance from the apartment complex in question, I cannot agree with the statement in the majority opinion that “we cannot, even in retrospect, reasonably conclude any other residents were in immediate danger.” While this is not material under the test, the answer to this statement of the majority is that Officer Shirley’s action in aeriating the appellant’s apartment may well have prevented an explosion or fire. This court is simply not in a position to speculate as to what might have happened or that no emergency existed. Only a divine being could know what the eventual outcome would have been.

In short, I consider the question presented to be a simple one. The burden is on the state to prove that a warrantless entry fell within the emergency doctrine. McDonald v. United States, 335 U.S. 451, 69 S.Ct. at 191 (1948); Janicek v. State, 634 S.W.2d 687 (Tex.Crim.App.1982). There can be no ready test for determining reasonableness other than by balancing the need to enter against the invasion the entry entails. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). When we apply these rules of law to the undisputed and stipulated facts, I conclude that an emergency existed. Thus, the entry was authorized.

The fact that the officer may have suspected the illegal manufacture of methamphetamine is, in my opinion, totally immaterial. What is material is whether the concentration of a combustible substance was such as to create an emergency in a large apartment complex. Likewise, the failure of the fire captain to make a more thorough investigation and to determine for himself whether, he should have entered is inconsequential. Appellant’s argument taken to its logical conclusion would result in an incapacity to find an emergency if there was a difference of opinion among those present at the scene. After all, Key admitted that given the facts stipulated to by appellant, an emergency existed.

The material facts are that it was approximately 4:30 a.m.; that the concentration of ether was intense enough to make visible a gaseous cloud coming from the patio door of the apartment; that the officer knew ether to be extremely flammable and that this activity was occurring in a large apartment complex in the city of Houston. When his knock on the door was answered he found the concentration of ether even stronger. He entered to aeriate the apartment. Whether an exigent entry is authorized is determined by the articula-ble facts at the time of entry is authorized rather than being affected by what is ultimately found inside.

I would hold that upon the facts then in possession of the police officer, he was justified in entering without warrant to ventilate the apartment. Once inside he wa& not required to close his eyes to those items he recognized as being used in the illegal manufacture of methamphetamine. He was therefore authorized to use those facts as a basis for securing a search warrant to search the apartment and seize the evidence used to convict appellant.

There can be no question that the United States Supreme Court explicitly recognizes that exigent circumstances may in some instances justify and require a warrantless official intrusion into privacy. Surely it was precisely toward providing for such circumstances as are present here that the court formulated the emergency doctrine. If not, it is difficult, indeed, to think of a case in which it ever could be applied.

I respectfully dissent.

Paul PRESSLER, CANNON and DRAUGHN, JJ., concur.

      . ... Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).

      . ... Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).

      . . ..Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


source: Caselaw Access Project

author: JUNELL, Justice.

license: Public Domain

text:
    Jimmie Lee DEARY, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-778CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 11, 1984.

      Dick DeGuerin, Lewis Dickson [on appeal only], Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, SEARS and SHARPE, JJ.
   OPINION

JUNELL, Justice.

Appellant has been convicted of third degree felony theft for his participation in shoplifting a cassette stereo player from a Houston discount store. Three main issues are raised on appeal. First, the appellant seeks a new trial because of jury misconduct committed when a juror related his personal experience in shopping for stereo equipment. Second, he seeks reversal because inadmissible hearsay was allowed into evidence. Third, he argues that the evidence was insufficient to sustain a conviction because the stolen cassette player was not adequately identified as store property. We reverse and remand for a new trial because of jury misconduct.

A discussion of appellant’s third, fourth, and fifth grounds of error necessitates a factual summary and will be treated first. In January 1981 a shoplifting incident occurred in a Houston Target Store. Three persons were involved in the theft observed by Security Guard Steve Walton. Mr. Walton testified that he noticed a black boy, whom he had seen in the store on numerous occasions, meet up with a black man (identified as appellant) in the camera and sound department of the store. As the boy and man looked at cassette players and televisions, a black woman approached with an empty baby stroller box. The appellant put the box in a shopping basket cart and the woman left the area. Then the man picked a cassette player from the shelf and placed it in the box. The boy and man started toward the front of the store but stopped when a store employee crossed their path. The appellant removed the cassette player from the box and placed it on a shelf. He went up to a customer service booth and engaged in a conversation while the boy stayed near the stroller box. The appellant returned to the sound and camera department and put the stereo cassette player back into the box. He also put two other pieces of merchandise in the box. He and the boy took the box and shopping cart to the children’s department. The man exited the store while the woman met up with the boy. The woman and boy took the merchandise out of the store through the front door without stopping at a checkout register. The security guard, who had been watching the entire incident, followed the woman and boy out to the parking lot and to a car at which appellant was standing. As the boy and woman were attempting to put the stroller box into the car, the guard identified himself and asked them to accompany him back to the store. A scuffle ensued. The merchandise fell to the ground as the guard attempted to recover the property. The man and woman escaped while the boy was captured by the guard. As the guard kept control of the boy, a store employee came out and helped recover the merchandise from the parking lot. Upon returning to the store James Harris, merchandise manager for the store, saw Walton bring a black boy into the store and a store employee bring some property back into the store.

The indictment charged appellant with stealing an eight-track tape player, one cassette player and one recorder. Only theft of a cassette player was proved at trial. Both Security Guard Walton and the merchandise manager identified State “Exhibit 1” as a picture of a cassette player. “Exhibit 1” was never offered into evidence. The security guard said the cassette player pictured was the one he saw appellant place into the stroller box. The merchandise manager said the player was one of the items he saw brought back into the store along with the boy. While looking at “Exhibit 1,” the manager recognized the cassette player as inventory of the store he managed and affirmed that it was owned by Target Stores, Incorporated.

Appellant’s last three grounds of error all complain that evidence was insufficient. The proper standard for review is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984) (en banc).

Appellant’s third ground of error is that the state never proved that the cassette recorder identified by the merchandise manager was the same property stolen from the store. It is clear that Security Guard Walton, who saw the item leave the store, and Merchandising Manager Harris, who saw the item brought back into the store, were speaking of the same cassette recorder throughout the trial. The fact that Walton used various words to describe the recorder (“stereo,” “cassette player,” “merchandise”) is understandable. The cassette recorder also contained an AM/PM stereo receiver. Appellant’s third ground of error is overruled.

In his fourth ground of error appellant contends that the state failed to prove that the property was taken without the consent of Target Stores, Incorporated, because the state did not adequately show that Mr. Harris had the requisite authority to act on behalf of Target Stores, Incorporated, in identifying the stolen merchandise. Mr. Harris testified that he was employed by “Target Stores” as merchandise manager for “the store” where the theft occurred. As merchandise manager he had care, custody and control of the merchandise on sale at the store the day of the theft. He stated that all of the merchandise on sale on the floor of Target Stores was property owned by Target Stores, Incorporated. This adequately established his credentials as custodian of property of Target Stores, Incorporated. Appellant’s fourth ground of error is overruled.

Appellant’s fifth ground of error is that the state failed to prove that the property was owned by Target Stores, Incorporated. This was established by direct testimony by Mr. Harris. “Q. And was this cassette player (Exhibit 1) owned by Target Stores, Incorporated? A. Yes, it was.” This last ground of error is overruled.

NEW TRIAL MOTION

Appellant’s first ground of error is that the trial court erred in refusing to grant a new trial because a juror during deliberations related his experiences in shopping for stereo equipment. At trial defense counsel successfully raised a question in the minds of some jurors as to the value of the cassette player by suggesting that the price tag on the player could have included two speakers displayed alongside it. There was no evidence that any speakers were stolen.

A hearing was held on the new trial motion. Juror Otilio P. Gutierrez testified that at the beginning of deliberations he had been confused as to what type of stereo equipment was stolen and its value. Juror Michael King related that he had been shopping for stereo equipment and from that experience felt that it was reasonable to believe that the cassette player alone had a value over $200. King explained to Gutierrez the nature of component stereo systems and the fact that pieces of equipment can be purchased separately. He said that he had paid more than $200 for a stereo/tape player without speakers. All but one of the jurors testified at the hearing. None disputed the fact that the conversation took place; however, some did not remember it. Juror Arthur Adams, who had alerted appellant’s defense attorney to the alleged misconduct, testified that he heard King’s explanation and that it changed his mind to vote guilty instead of not guilty.

A defendant is entitled to a new trial “where the jury, after having retired to deliberate upon a case, has received other evidence.” Tex.Code Crim.Proc.Ann. art. 40.03(7) (Vernon 1979). The test to be applied in determining grounds for reversal under art. 40.03 are: (1) that other testimony or other evidence was actually received by the jury, and (2) that such evidence was detrimental to the appellant. Garza v. State, 630 S.W.2d 272, 274 (Tex.Crim.App.1982).

The state contends that King’s testimony was not “received” because it was made in passing and whatever harm it may have caused was cured by King’s own admonishment to consider only submitted evidence. We hold the comments were not in passing. King explained the nature of component systems, that speakers need not be purchased with other equipment, and the price he paid for his purchase. This was more than a passing comment. Cf. Rodriguez v. State, 661 S.W.2d 332, 336 (Tex.App.-Corpus Christi 1983, pet. ref’d) and Zuniga v. State, 635 S.W.2d 780 (Tex.App.1982, pet. ref’d).

The state also urges that the misconduct was cured by this statement made by King during deliberations:

And he [Gutierrez] said, “Well, how can we be sure that the system”—or that what Mr. Deary took—“was worth $200.00 or more?” And I said, “Well, the only thing that we have to go by— the only thing that we’re supposed to go by—is the testimony. And the testimony is when the guy looked—when the merchandising manager held the photograph and looked at the picture and Mr. Cos-sum asked him, ‘Was this worth more than $200.00 or more,’ the guy said yes. And nobody ever said differently.” And so I said, “The only testimony we have is that. And that’s what I’m basing my decision on, and that’s what I believe.”

The statement above was not strong enough to cure the misconduct. It was not made by the presiding juror. It did not cause the other jurors to reject the improper remarks. Cf. Eckert v. State, 623 S.W.2d 359 (Tex.Crim.App.1981).

The other evidence brought in by Juror King was detrimental to the appellant because his guilt on the felony charge depended upon whether the value of the cassette player exceeded $200.00. See Bearden v. State, 648 S.W.2d 688 (Tex.Crim.App.1983) (en banc); Alexander v. State, 610 S.W.2d 750 (Tex.Crim.App.1980) and McGary v. State, 658 S.W.2d 673 (Tex.App.-Dallas 1983, pet. ref’d). We need not consider, nor would it be proper to consider, Juror Adams’ statement that King’s comments made Adams change his mind to vote guilty. The first ground of error is sustained.

HEARSAY BY INFERENCE

We now address appellant’s second ground of error concerning hearsay to avoid repeating error during retrial. After the shoplifting incident, Security Guard Walton brought the boy involved with appellant back into the .store where he was interviewed by Houston Police Officer D.L. Rogers. The boy identified the adults involved in the theft and Officer Rogers used those names to locate in police files a photograph of Deary. That photo was included in an array presented to the security guard ten days after the incident. Security Guard Walton testified at trial that he picked appellant’s picture out of the array.

Inadmissible hearsay was allowed into evidence by the trial judge after timely objections were made by defense counsel out of the hearing of the jury and again when the jury was present. The judge allowed Officer Rogers to testify that he asked the boy for the names of the two persons involved with him, and as a result of that conversation the officer went to the identification division and located one photograph. Later in the trial a detective was allowed, again over objection, to testify that Security Guard Walton picked out the photograph of appellant as the man who committed the theft.

Appellant would have us call this sequence of testimony hearsay by inference. The term is as good as any. The officer was not allowed to testify “the boy named Jimmie Lee Deary as his accomplice.” But the unavoidable inference from the testimony as a whole conveyed the same information. See Trussell v. State, 585 S.W.2d 736, 739 (Tex.Crim.App.1979) and Vines v. State, 479 S.W.2d 322, 324 (Tex.Crim.App.1972). The boy was not on the stand, was not available for cross-examination and the jury was not able to assess his demeanor. All of the underlying concerns that engendered the hearsay rule are present here. The judge should have cut off questioning of Officer Rogers after he stated he had a conversation with the boy. The state could still have presented evidence that the security guard identified appellant in a photo array. Allowing the jury to find out how the police came to get a picture of appellant was error. The state argues that any error in allowing hearsay by inference was harmless because the security guard positively identified appellant at trial. We need not decide whether the error was harmless because a new trial is necessary. The appellant’s second ground of error is sustained.


text:
    Jesse Salvador LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. C14-84-087CR.
    Court of Appeals of Texas, Houston (14th Dist.)
    Oct. 11, 1984.

      Clyde Woody, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, SEARS and SHARPE, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a conviction for the offense of possession of a controlled substance (methamphetamine). The appellant waived trial by jury. In defense he relied upon a motion to suppress evidence on the ground that the arresting officer had no authority to make the initial investigatory stop that resulted in arrest and subsequent discovery of the contraband. The motion to suppress was carried forward, heard during the trial and denied. The trial court found appellant guilty, assessed a three-year sentence, probated for three years. We hold that the trial court correctly denied the motion to suppress and accordingly affirm the judgment.

The only witness at the trial was Officer Clement Abbondandolo. He testified that at approximately 5:45 a.m. he was patrolling a “high-crime area” in a marked police car. He observed appellant nervously pacing back and forth in front of a motel. The officer drove alongside and from his police car window asked “if everything was okay.” Appellant answered that “he wasn’t involved; he had nothing to do with it.” Officer Abbondandolo next asked appellant, who was then standing over the patrol car, whether he had a weapon. Appellant answered that he had a gun. Then the officer exited his car, noticed a bulge in appellant’s vest pocket, felt the vest and pulled a pistol out of the pocket. Appellant was arrested and during a body search incident to arrest the officer found the methamphetamine.

In his first ground of error, appellant contends that evidence resulting from the arrest should have been suppressed because there was no probable cause for the initial investigative stop. The argument fails because no probable cause was necessary to justify Officer Abbondandolo’s opening question.

Fourth Amendment jurisprudence now recognizes three categories of police-citizen encounters. The first, and least intrusive, can be called “mere contact.” It occurs when an officer approaches an individual on the street or in another public place to ask questions. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, 236 (1983) (plurality opinion). The Fourth Amendment is not applicable because the officer has not significantly interfered with the citizen’s liberty interests.

The next category of contact is known as a Terry-type investigative stop. A stop occurs when an officer detains an individual by exerting official authority such that a reasonable person would believe he is not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497, 509 (1980) (plurality opinion). This type seizure is reasonable as long as the officer can demonstrate articulable suspicion that a crime has occurred or is about to occur. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Probable cause is a requisite only to an arrest.

We find that the initial inquiry, “if everything was okay,” did not amount to an investigative stop.

The cases cited by appellant, Rodriguez v. State, 578 S.W.2d 419 (Tex.Crim.App.1979) and Ceniceros v. State, 551 S.W.2d 50 (Tex.Crim.App.1977), are factually similar to the situation at bar. But these decisions are not the latest word from the court of criminal appeals on the distinction between mere contact and an investigative stop.

An officer can approach an occupied motor vehicle and knock on the window without effecting a “stop.” Merideth v. State, 603 S.W.2d 872 (Tex.Crim.App.1980); see also Stewart v. State, 603 S.W.2d 861 (Tex.Crim.App.1980); Isam v. State, 582 S.W.2d 441 (Tex.Crim.App.1979); and Thomas v. State, 633 S.W.2d 334 (Tex.App.-Dallas 1982, pet. ref’d). No detention occurs when an officer approaches a suspect in a bar and asks him to step outside to talk as long as the suspect goes along voluntarily and not in submission to a show of force or authority which leaves him no choice. Galitz v. State, 617 S.W.2d 949, 957 (Tex.Crim.App.1981). An officer can even knock politely on a closed apartment door without impinging on any constitutional rights. Rodriguez v. State, 653 S.W.2d 305 (Tex.Crim.App.1983) (en banc). Surely appellant was not “stopped” when Officer Abbondandolo drove up to ask him a question.

Although the subjective thoughts of the officer are not controlling on the matter, Martinez v. State, 635 S.W.2d 629 (Tex.App.-Austin 1982, pet. ref’d), Officer Abbondandolo testified that had appellant walked away instead of answering, there could be no justification for detaining him. Instead, appellant answered with a nonsensical answer that indicated that some criminal activity had occurred. At that moment Officer Abbondandolo had articulable suspicion to justify a Terry-type detention. He was in a high-crime area; it was dark; appellant was nervously pacing back and forth; and the officer had just heard a statement that would reasonably lead him to believe a crime had occurred and needed to be investigated. Asking appellant whether he had a weapon was a reasonable precaution. Under Terry, the officer could have gotten out and executed a pat-down search without further questioning. See Ramirez v. State, 672 S.W.2d 480 (Tex.Crim.App.1984) (en banc) and Zelip v. State, 669 S.W.2d 125, 127 (Tex.App.-Waco 1983, pet. ref’d). Once the gun was recovered, probable cause to arrest was evident and a search incident to arrest proper. We overrule the first ground of error.

The appellant’s second ground of error is without merit and is overruled. He claims that his Constitutional rights were violated because Officer Abbondandolo did not give a Miranda warning when he pulled up to question appellant. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) requires warnings only when a custodial interrogation occurs. See United States v. Woods, 720 F.2d 1022 (9th Cir.1983); United States v. Collom, 614 F.2d 624 (9th Cir.1979), cert. denied, 446 U.S. 923, 100 S.Ct. 1862, 64 L.Ed.2d 278 (1980).

In his third ground of error appellant complains that the evidence is insufficient to sustain conviction because the record lacks proof that the substance recovered in the search was methamphetamine. A stipulation as to a chemical analysis of the substance is missing from the record. The statement of facts clearly shows that a stipulation was introduced into evidence and accepted by the court as State’s “Exhibit 1.” Copies of exhibits on file are to be made part of the record without special request by a party. Tex.Code Crim.Proc. Ann. art. 40.09 § 1 (Vernon Supp.1984). We hold that the appellant waived any complaint when he failed to object to the record before it was approved by the court. Tex.Code Crim.Proc. Ann. art. 40.09 § 7 (Vernon Supp.1984). It has been repeatedly held that a party cannot raise issues of insufficiency of evidence when no, or only a partial, statement of facts has been included in the record. Beck v. State, 583 S.W.2d 338 (Tex.Crim.App.1979); Daughtrey v. State, 544 S.W.2d 158 (Tex.Crim.App.1976); Goodings v. State, 500 S.W.2d 173 (Tex.Crim.App.1973); Martinets v. State, 493 S.W.2d 923 (Tex.Crim.App.1973). The same should be true when exhibits are missing. See Benton v. State, 168 Tex.Crim. 367, 328 S.W.2d 302 (1959). The third ground of error is overruled.

The judgment of the trial court is affirmed.


author: CANNON, Justice.

text:
    Gilbert Lee MANNING, Appellant, v. The STATE of Texas, Appellee.
    No. A14-84-386-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 11, 1984.
    Frank Rush, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is an appeal from the denial of Relator’s Writ of Habeas Corpus filed prior to the disposition of the criminal case upon which he was originally arrested. The Relief requested is denied.

A felony complaint was filed against appellant on Dec. 11, 1983. At the preliminary hearing before Judge Guarino, Dec. 13, 1983, bail was increased to $50,000 and he was given certain warnings. Among the warnings given to him was his right to an examining trial. After being read these warnings he signed the warning sheet. Also, he claimed he was indigent and counsel was appointed. On February 9, 1984, the grand jury returned a true bill against the appellant for aggravated assault.

Appellant now claims that his right to an examining trial was violated by Judge Guarino. More specifically, that under Judge Bue’s order there must exist an affirmative waiver of the right to an examining trial. Judge Bue held, “The magistrate shall schedule an examining trial to be held within 10 days after the preliminary hearing unless such a right is specifically and knowingly waived by an accused and his attorney.” Alberti v. Sheriff of Harris County, Texas, 406 F.Supp. 649, 676 (S.D.Tex.1975). We disagree.

At the preliminary hearing, while represented by counsel, appellant signed a warning sheet containing the right to an examining trial. He now claims he requested, through his appointed counsel, an examining trial. We find insufficient evidence in the record to support this contention.

He further argues that under Judge Bue’s order he must specifically and knowingly give up his right to an examining trial and that failure to request one does not waive this right. We decline to follow this view.

It is clear that under Texas law the right to an examining trial terminates upon the return of an indictment. Gooden v. State, 425 S.W.2d 645, 646 (Tex.Crim.App.1968); Romo v. State, 641 S.W.2d 390, 392 (Tex.App.-Tyler 1982, no pet.). The return of a true bill by the grand jury satisfies the principal purpose and justification for such a hearing; that there is probable cause to believe the accused committed the crime charged. Tarpley v. Estelle, 703 F.2d 157 (5th Cir.1983), cert. denied, - U.S. -, 104 S.Ct. 508, 78 L.Ed.2d 697 (1983).

Also, we find that it is incumbent upon the accused or his attorney to request an examining trial before return of the indictment or it is waived. Failure to grant an examining trial prior to the return of the indictment does not affect the validity of the indictment or conviction. Eubanks v. State, 635 S.W.2d 568, 572 (Tex.App.-Houston [1st Dist.] 1982, no pet.); Gooden v. State, 425 S.W.2d at 646.

Accordingly, this court chooses to follow Texas case law and finds the appellant did not properly request an examining trial and because an indictment has been returned against appellant, he no longer has this right. Furthermore, any relief sought by appellant does not rest with this court but rather with the federal courts.

Relief prayed for denied.


author: T. GILBERT SHARPE, Justice, retired.

text:
    Dawn Carol SMITH, Appellant, v. Frank Stanton SMITH, et al., Appellees.
    No. C14-83-651CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.

      Raymond W. Greer, Hinton, Morris & Browning, Houston, for appellant.
    Carol Vance, Bracewell & Patterson, Houston, for appellees.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J., retired.
   OPINION

T. GILBERT SHARPE, Justice, retired.

This is an appeal from an order signed August 25,1983, appointing a receiver over certain partnership assets.

In 1978, Frank and Grace Smith (Appel-lees) entered into two joint venture agreements with their daughter, Dawn Smith (Appellant), for the purpose of acquiring real property so as to build two separate apartment projects. The funds necessary to construct the projects were obtained through Farmers Home Administration (“FmHA”), a rural residential housing program. The principal amounts of the loans obtained from FmHA were $1,280,000 and $1,488,000. Appellant acted as the managing joint venturer of both apartment projects until the time the receiver was appointed.

On October 6, 1982, Frank and Grace Smith filed suit against Appellant for (1) dissolution of the partnership, (2) appointment of a receiver, and (3) for an accounting in connection with Dawn Smith’s alleged breaches and mismanagement of the two joint ventures. (Dawn Smith’s husband, Earl Malpartida, is also a defendant, along with Joe and Lea Slayton, holders of a ten percent interest in one of the projects.) On August 9, 1983, a hearing was held on Appellees’ application for appointment of a receiver. On August 25, 1983, the court signed an order appointing a receiver, inserting the receiver’s name and the bond amount on September 6,1983. Both the receiver and appellees subsequently filed a $10,000 bond in connection with the receivership. On September 26, 1983, the receiver filed a motion with the court, asking it to clarify his duties and to enjoin all parties to the lawsuit from interfering with the performance of those duties. As a result of this motion, an order was signed by the trial judge on November 11, 1983, titled “Agreed Supplemental Order Clarifying Duties of Receiver and Temporary Injunction.” Appellant has perfected this appeal, challenging the validity of the trial court’s August 25, 1983 order. She does not, however, complain of the subsequent supplemental order. We affirm.

We will first address the merits of Appellant’s argument in opposition to the appointment of a receiver. In points of error eight and ten, Appellant contends (1) the trial court abused its discretion in ordering the appointment of a receiver when a less harsh remedy was available, and (2) the trial court abused its discretion in appointing a receiver to take control of the operation and management of the two apartment projects because there was no evidence of a “present danger of loss, removal or material injury to the property.” We disagree.

It is well settled that the appointment of a receiver is within the discretion of the court and, absent a clear abuse of discretion, will not be disturbed on appeal. Covington Knox, Inc. v. State, 577 S.W.2d 323 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ). TEX.REV.CIV.STAT.ANN. art. 2293 (Vernon 1971) provides, in part:

Receivers may be appointed by any judge of a court of competent jurisdiction of this State, in the following cases:
(1) In an action ... between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff or any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.

If there is evidence to show Appellees brought themselves within the terms of this statute, the trial court did not abuse its discretion by appointing a receiver. See Hitt v. Morris, 250 S.W.2d 408 (Tex.Civ.App.-El Paso 1952, mand. overr.); M. Guerra & Son v. Manges, 442 S.W.2d 441 (Tex.Civ.App.-Waco 1969, writ dism’d).

Appellees hold a 45% partnership interest in the Magnolia Village apartment projects and a 50% interest in Country Terrace Village. When Appellees became aware that Appellant was engaged in certain misconduct with regard to the two projects, they filed this lawsuit. At the hearing on Appellees’ application for appointment of a receiver, Appellant testified: (1) that she took $39,000 from the Country Terrace Village construction account and placed it in a Swiss bank account in her name; (2) she purchased items for personal use out of the partnership accounts; (3) she had commingled her personal funds with those of the two partnerships; and (4) that a number of the business records regarding the projects were inaccurate.

Richard Cumberland, a certified public accountant, testified that Appellant had failed to keep even the minimum records necessary for this type of business venture. He further testified that this failure to keep accurate records would cause material injury to the partnership assets. After he reconstructed each partner’s contributions and withdrawals from the checks written to and from the projects (no general ledger had been kept), the records showed that Appellant had withdrawn approximately $242,000 from the projects. This amount was far in excess of any fees and distributions to which she was entitled. Cumberland also testified that the partnership tax returns prepared from the records provided by Appellant were inaccurate, and that such filing could result in tax penalties to the partners.

Bill Derden, District Director of FmHA, testified that Appellant had failed to provide them with unqualified annual audits pursuant to FmHA regulations. He noted that FmHA requires that management fees must be limited to five percent of the gross monthly rent, and that any improper use of funds or commingling of funds would place the projects in jeopardy.

Appellant contends that since FmHA had been unaware of any violations of FmHA regulations prior to the receivership hearing, there was no “present” danger of foreclosure, thus precluding the finding necessary for appointment of a receiver. We disagree. The fact that Appellant’s misconduct had been heretofore undiscovered in no way lessens the potential danger of injury to the property; thus, their petition for relief by way of receivership was proper. We overrule points eight and ten.

In point of error nine, Appellant contends the trial court erred in appointing a receiver because Appellees’ application for appointment of a receiver was barred by laches. We find no merit in this contention. Laches is an affirmative defense, and the burden was on Appellant to prove its essential elements. City of Fort Worth v. Johnson, 388 S.W.2d 400, 403 (Tex.1964). Two essential elements of laches are (1) unreasonable delay by one having legal or equitable rights in asserting them, and (2) a good faith change of position by another to his detriment because of the delay. Id. at 403. Appellees filed their original petition in October 1982. Their request for appointment of a receiver was heard on August 9, 1983, approximately ten months later. While Appellant claims error, she has failed to show either lack of diligence on the part of Appellees to pursue their cause of action or detriment incurred due to the alleged delay. We overrule point of error nine.

We turn now to Appellant’s points of error one through seven wherein she contends the Order Appointing a Receiver signed August 25, 1983, contains injunctive orders which are void ab initio. These orders, set out at the end of the document entitled “Order Appointing a Receiver,” are as follows:

(a) Defendant Dawn Carol Smith is hereby enjoined from making any payments for any reason, including fees, wages, and other, to herself, Defendant Earl Malpartida Smith, or Defendants I. Joe Slay and Lea Slay;
(b) Defendant Earl Malpartida Smith is enjoined from performing services as an employee or otherwise of either Magnolia Village Joint Venture or Country Terrace Village Joint Venture;
(c) Defendant Dawn Carol Smith is prohibited from committing Magnolia Village Joint Venture or Country Terrace Village Joint Venture to any expenditures or making any payments on behalf of Magnolia Village Joint Venture or Country Terrace Village Joint Venture, ...
(d) Defendant Dawn Carol Smith is enjoined from taking any action concerning selling or otherwise disposing of partnership assets; and
(e) Defendant Dawn Carol Smith is prohibited from interfering in any way with the Receiver in his management of Magnolia Village Joint Venture or Country Terrace Village Joint Venture and shall have no contact with the Receiver except at the Receiver’s request.

It is Appellant’s contention that these orders are void and should be dissolved because (1) no bond was set or filed by Appel-lees pursuant to TEX.R.CIV.P. 684 and (2) the orders fail to state the reason for their issuance and are not “definite, clear and precise” pursuant to TEX.R.CIV.P. 683.

In an order granting injunctive relief, it is mandatory that a bond be set by the trial court and filed by the applicant. The failure of the applicant to file such a bond renders the injunction void ab initio. Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956); Diversified, Inc. v. Turner, 650 S.W.2d 175 (Tex.App.-Houston [14th Dist.] 1983, no writ). Additionally, TEX.R.CIV.P. 683 provides, in part, that “[e]very order granting an injunction ... shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained. ...” This court has held that the provision set out in Rule 683 that the order state the specific reasons for granting an injunction is mandatory, and the failure to comply with the rule is reversible error. Diversified, Inc. v. Turner, 650 S.W.2d at 176; General Homes, Inc. v. Wingate Civic Ass’n, 616 S.W.2d 351 (Tex.Civ.App. Houston [14th Dist.] 1981, no writ).

Indeed, if we were to construe the language of the order set out above as a temporary injunction, it would clearly be void because it does not satisfy the provisions of TEX.R.CIV.P. 683 and 684. However, we believe error, if any, regarding these orders is moot in light of the subsequent order of clarification and temporary injunction entered by the trial court. The supplemental order contains the following language:

It is further Ordered, Adjudged and Decreed that all parties immediately refrain and desist from any acts or omissions which would hinder the Receiver in performance of his court-ordered duties:
(1) All parties are ordered to turn over to the Receiver all books, records or materials relating to the joint ventures within two days of the signing of this Order to the extent each has not already done so....
(2) No party is to communicate with the Receiver except at the Receiver’s request.
(3) No party is to visit the site of either of the joint ventures without prior consent of the Receiver, ...
(4) No party is to talk with any current or prospective employee of either joint venture, any contractors working for or employed by either joint venture, or any vendors, mortgagees, banks or federal agencies that are involved with either joint venture, concerning the business of the joint ventures without prior written consent of the Receiver.
(5)Any party who is contacted by a third party who is not aware of this Order and the existence of the receivership shall be directed immediately to the Receiver by that party and further communication with that third party concerning the business of the joint ventures shall then cease.

We hold that the orders contained in the agreed supplemental order supercede any prior injunctive orders that may have been issued by the trial court on August 25, 1983. Since Appellant does not complain in this appeal of the supplemental order, there is nothing presented on this matter for our review. We overrule points one through seven.

The judgment of the trial court is affirmed.

      . ... A second order, identical to this order, also appears in the record. It was signed by the trial judge on January 20, 1984.


author: ELLIS, Justice.

text:
    NORTHWEST MALL, INC. and N.W. Management Corp., Appellants, v. LUBRI-LON INTERNATIONAL, INC., Appellee. LUBRI-LON INTERNATIONAL, INC., Appellant, v. Madge SPENCER, Appellee.
    No. B14-83-857-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.

      Bradley M. Bingham, John O’Quinn, Houston, for appellants.
    W.D. Carter, Jr., Charles W. Hurd, Houston, for appellees.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

In this consolidated appeal, appellant Lu-bri-lon International (Lubri-lon) complains of a jury award to Madge Spencer in her personal injury lawsuit. Appellants Northwest Mall and N.W. Management Corporation (Northwest Mall or the Mall) raise the issue of the validity of an indemnity agreement between it and Lubri-lon for Mrs. Spencer’s injuries. Mrs. Spencer brought this action after she slipped and fell in a puddle of oil additive sold in Lubri-lon’s kiosk in Northwest Mall. In thirty-five points of error, Lubri-lon now contends that the evidence presented did not adequately support the jury’s findings of negligence, causation, and damages, and that these findings were erroneous as a matter of law. In a single cross-point, Mrs. Spencer argues that she should have been awarded prejudgment, interest. Finally, Northwest Mall complains that the trial court erred in holding that the lease contract between the Mall and Lubri-lon did not provide for indemnity against Lubri-lon. After a careful review of the facts and applicable law, we affirm the judgement of the trial court in its entirety.

Because the sufficiency of the evidence is challenged, we will briefly review the relevant facts. Lubri-lon operated a sales booth in the center of a corrider in Northwest Mall, out of which they sold an engine oil additive. The booth was run by Buddy Parent. As part of his sales pitch, Mr. Parent would use a machine to demonstrate the effects of the additive. After each demonstration, a small amount of used oil and oil additive remained. Mr. Parent would dispose of this oil in a thermos jug which he kept in the booth. On Saturday night, January 5, 1980, Mr. Parent closed up the booth. On this particular night he was “bone tired”, so, instead of immediately disposing of the left-over oil or placing the thermos jug into a locked bin inside the booth, he put the jug on a shelf underneath the booth’s countertop. On Sunday night, the Mall security guard, while making his rounds, observed a kid jumping out of the Lubri-lon booth. The kid ran away, and the guard was unable to catch him. Some time later, the guard noticed that some oil was leaking out from inside the booth. The guard left a note for the next guard on duty telling him of this problem, but did not himself clean the oil up.

Monday morning, at around 7:15 a.m., the morning maintenance man noticed the puddle of oil and mopped it up. However, between 8:30 and 9:00 that same morning, the mall manager, while making his daily rounds, found a patch of oil in the same place. He radioed for the maintenance man on his walkie-talkie, but got no response. He then left to look for the maintenance man. As he was walking away from the booth, he passed Mrs. Spencer, who worked at a store in the mall, but did not say anything to warn her of the spill. Mrs. Spencer slipped in the oil and broke her hip. Based on this incident, she sued the Mall and Lubri-lon.

STANDARDS OF REVIEW

To facilitate comprehension of this case, we first will set out the various standards of review raised by Lubri-lon. In deciding legal insufficiency or “no evidence” points of error, we are to consider only that evidence and the reasonable inferences therefrom, which, viewed in the light most favorable to the verdict, support the jury’s findings. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981). After conducting such a review, if we find any evidence supporting the jury’s findings, the verdict will be upheld. See Lucas v. Everman Corporation, 27 Tex.Sup.Ct.J. 491, 494 (July 14, 1984). Lubri-lon also attempts to raise several points attacking the factual insufficiency of the evidence supporting the jury’s findings. However, they word each point of error “the trial court erred in entering judgment.” The supreme court has held that points stated in such a manner are adequate only as “no evidence” points. Chemical Cleaning, Inc. v. Chemical Cleaning & Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970). See also Chrysler Corporation v. Schuenemann, 618 S.W.2d 799, 806 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref’d n.r.e.). But see Bluebonnet Express Inc. v. Employers Insurance of Wausau, 651 S.W.2d 345 (Tex.App.-Houston [14th Dist.] 1983, writ ref’d n.r.e.) (Robertson, J., dissenting). In this case, however, as will be more fully developed below, even Lubri-lon’s factual insufficiency arguments fail, and consequently, we will also consider those points. In making those decisions we have considered all the evidence and determined that there is evidence of probative value to support the jury’s findings. See American Oil Company v. Fisher, 659 S.W.2d 80, 82 (Tex.App.-Houston [14th Dist.] 1983, no writ). Challenges to a court’s refusal to grant a motion for judgment notwithstanding the verdict are to be reviewed similarly to legal insufficiency claims. The reviewing court is to consider only the evidence favorable to the jury’s verdict, and can reverse the trial court’s refusal to grant the motion only if there is no evidence to support the jury’s findings. See Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980). Finally, a trial court’s refusal to disregard the jury’s answers to special issues is reversible error only if there is no evidence to support them or if the issue is immaterial. See Hughes v. Aycock, 598 S.W.2d 370, 374 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.). With these rules in mind, we now proceed to Lubri-lon’s contentions.

NEGLIGENCE

In each of the above described manners, Lubri-lon challenges the legal and factual sufficiency of the evidence supporting the jury’s affirmative findings of negligence and duty. Lubri-lon also suggests that they established that there was no duty and no negligence as a matter of law. The elements of negligence are the existence of a duty on the part of one party to another, a breach of that duty, and damages proximately caused by the breach of that duty. Lucas v. Everman Corporation, 27 Tex.Sup.Ct.J. 491, 493-94 (July 14, 1984). This “duty” is a duty to act as a reasonable prudent person under the same or similar circumstances, considering the reasonably foreseeable risk or probability of injury to persons situated as the plaintiff. Bennett v. Span Industries, Inc., 628 S.W.2d 470 (Tex.App.-Texarkana 1981, writ ref’d n.r.e.).

The evidence indicates that Mr. Parent violated this duty under a number of theories. First, Mr. Parent testified that sixty percent of the time, he did, in fact, lock the thermos jug in the bin. This particular night, however, he was very tired and left the jug out to save time. From this fact alone, the jury could have found negligence. Secondly, the Lubri-lon booth had been vandalized in the past. The booth itself facilitated such acts. It was simply an enclosed rectangular unit which was bolted to the mall floor. The inside was open, except for the storage bin. There were countertops along the two longer sides, with an open area underneath. Although one could store items under the counters, such items were accessible simply by jumping over the countertops into the booth. Considering that the items Mr. Parent left under the booth, the Lubri-lon and oil, were very slippery in nature, and that the booth area was open and had been broken into in the past, we have no difficulty in holding that there was evidence, both as a matter of fact and as a matter of law, to support the negligence issues.

Lubri-lon attempts to argue that they owed no duty to Mrs. Spencer as she was merely a passerby and was not injured inside the booth. This argument fails on both accounts. In similar instances, courts have established that occupiers of premises on adjacent public throughways have a duty of care to passerbys. See Alamo National Bank v. Kravs, 616 S.W.2d 908, 910 (Tex.1981); Beaumont Iron Works Co. v. Martin, 190 S.W.2d 491, 495 (Tex.Civ.App.-Beaumont 1945, writ ref’d w.o.m.); Skelly Oil Co. v. Johnston, 151 S.W.2d 863 (Tex.Civ.App.-Amarillo 1941, writ ref’d). Furthermore, their contention that Mrs. Spencer did not stand in a proper legal relationship to Lubri-lon is without merit. The existence or non-existence of a “legal relationship” is of little or no consequence if the circumstances of the incident are such that a person of common sense would recognize that if he did not exercise reasonable care, his acts would place another person in danger. Bennett v. Span Industries, Inc. at 474. Surely the reasonable person would recognize that a jug of oil left in an accessible location could spill and cause danger to anyone stepping in it. In sum, Lubri-lon’s negligence points, in each of their various forms, are overruled.

In its next set of arguments, Lubri-lon challenges the sufficiency of the evidence supporting the jury’s findings of causation. They first suggest that the evidence adduced at trial regarding the causation special issues was factually and legally insufficient, that the court erred in refusing their motion to disregard those issues, and that they were not a cause of the incident as a matter of law. They further argue that the jury’s affirmative findings that the oc-eurrence did arise out of the occupancy of the booth and that the occurrence in question was a result in whole or in part of any act or omission on the part of Lubri-lon were not established factually or as a matter of law. Again considering the standards announced above, we now review these contentions.

Proximate cause consists of two elements: (1) cause in fact; and (2) foreseeability. Farley v. M.M. Cattle Company, 529 S.W.2d 751, 755 (Tex.1975). Cause in fact is satisfied by showing that the act or omission was a substantial factor in bringing about the injury and without which no harm would have occurred. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980). The test for foreseeability is whether the actor, as a person of ordinary intelligence, should have anticipated the danger to others created by his negligent act. McClure at 903. Where the failure to use ordinary care actively aids in producing an injury, it need not be the sole cause. Rather, it can be a concurring cause and one that might reasonably have been contemplated as contributing to the result under the attending circumstances. McClure at 903.

The cause in fact element is readily satisfied from our circumstances. Lubri-lon, through Buddy Parent, was responsible for the oil and the booth from which it escaped. The oil was on the floor because Mr. Parent did not lock it up. Mrs. Spencer slipped and fell in this oil. Mr. Parent’s failure to lock the oil up was both a substantial factor in her fall, and one without which her fall would not have occurred. Similarly, the foreseeability element finds support in the evidence. Mr. Parent knew the area under the counter was open. He also knew that there was a possibility that anyone could get into the booth, and, in fact, designed a locked bin to prevent any misappropriations. Furthermore, he knew that the mall was open nights and weekends, and that people were able to roam in the mall. Kids had even vandalized his booth in the past. The evidence of these facts was certainly sufficient, legally and factually, to support the jury’s affirmative findings. Likewise, we cannot make a contrary finding as a matter of law.

We also note that under these facts the jury’s findings on the issues inquiring whether the occurrence arose out of the occupancy of the booth and whether it was a result of an act or omission of Lubri-lon were proper. While technically these issues were submitted in response to Northwest Mali’s attempts to acquire indemnity against Lubri-lon, which is discussed more fully below, these issues are simply variations on causation. As such, there was more than adequate evidence to support them both factually and as a matter of law.

In both its causation and its new and independent cause points of error, Lubri-lon contends that the intervening acts of either the vandal or the mall personnel completely absolves them of liability for Mrs. Spencer’s injuries. Specifically, they point to a number of “stolen car” cases. These cases have relieved the owner of liability, despite the owner’s failure to remove the keys, when the car is stolen, and in the course of theft, another person is injured. See, e.g., Parker and Parker Construction Co. v. Morris, 346 S.W.2d 922 (Tex.Civ.App.-El Paso 1961, writ ref’d n.r.e.). While we acknowledge that these cases exist, we believe the better rule is that an intervening action of a third party will not excuse the first wrongdoer if such act should have been foreseen. Clark v. Waggoner, 452 S.W.2d 437, 440 (Tex.1970); Texas Industries, Inc. v. Lucas, 634 S.W.2d 748, 755 (Tex.App.-Houston [14th Dist.] 1982), rev’d on other grounds, 27 Tex.Sup.Ct.J. 491 (July 14, 1984). See also Finnigan v. Blanco County, 670 S.W.2d 313 (Tex.App.-Austin 1984, no writ). As explained above, there was more than adequate evidence, both before the jury and before us, to determine that the vandal might have intervened. Furthermore, the acts of the Mall personnel in their various failures to prevent this type of incident do not extinguish Lubri-lon’s liability. Northwest Mall’s actions represented concurring causes, namely those which co-operated with a still present original act in bringing about the injury. See Bell v. Campbell, 434 S.W.2d 117, 122 (Tex.1968); Batko v. Mecca Investment Company, 642 S.W.2d 41, 44 (Tex.App.-Eastland 1982, no writ). As such, the original negligence re- • mains a proximate cause of the injury regardless of whether the concurring cause was foreseeable. Bell at 122; Batko at 44. Consequently, the evidence does not support, nor did the trial court err in failing to submit, an issue on new and independent cause. See McAllen Kentucky Fried Chicken No. 1, Inc. v. Leal, 627 S.W.2d 480, 483 (Tex.App.-Corpus Christi 1981, writ ref’d n.r.e.).

DAMAGES

Lubri-lon next attacks certain of the jury’s findings on the damages issues. They specifically challenge the following elements, suggesting that there was no evidence and/or insufficient evidence to support them, and that they are excessive:

Future lost earnings $107,000.00
Past disfigurement 25,000.00
Future disfigurement 30,000.00
Future medical 75,000.00

Alternatively, they request a remittitur of that part of the award.

In personal injury cases, the amount of damages is particularly within the discretion of the jury. Sanchez v. Schindler, 626 S.W.2d 871, 874-75 (Tex.App.-Corpus Christi 1981), rev’d on other grounds, 651 S.W.2d 249 (Tex.1983). We will not disturb a jury’s verdict on the grounds of excessiveness if there is any probative evidence to support the award. T.J. Allen Distributing Co. v. Leatherwood, 648 S.W.2d 773, 775 (Tex.App.-Beaumont 1983, writ ref’d n.r.e.). Likewise, a remittitur is proper only if the award is so excessive as to shock the conscience of the court. North Houston Pole Line Corp. v. McAllister, 667 S.W.2d 829, 832 (Tex.App.-Houston [14th Dist.] 1983, no writ). After reviewing the evidence under these standards, we cannot say the awards were excessive or unsupported by the evidence.

Mrs. Spencer earned approximately $10,000.00 per year from her job as a saleslady. After the accident, she was forced to quit this job because she was unable to stand without pain. She attempted to find another job, but without success. She sold her home in order to buy a flower shop. She has to hire people to work in this shop because she is unable to do even the simple tasks. Although no dollar figure was given, she stated that she makes less at this job. The award of $107,000.00 amounts to $600.00 per month over a fifteen year period. See Roberts v. Tatum, 575 S.W.2d 138, 142 (Tex.Civ.App.-Corpus Christi 1979, writ ref’d n.r.e.). Considering inflation, this amount is not excessive, and certainly not 100% excessive, as argued by Lubri-lon.

Lubri-lon’s complaints about the awards for past and future disfigurement are also without merit. Mrs. Spencer had three hip surgeries prior to trial; she anticipated at least three more. Each surgery left scars, and each future one was expected to leave the scars bigger. Mrs. Spencer considered herself deformed and would only wear clothes that covered the scars. The award amounted to $7.00 a day for the remainder of her life expectancy, an award we find both supported by the evidence and not excessive.

Regarding future medical expenses, Mrs. Spencer’s doctor, Dr. Dozier, stated that her artificial hip would have to be replaced approximately every eight years. Mrs. Spencer could thus anticipate at least three more surgeries in her lifetime. At approximately $12,000.00 each, as suggested by Dr. Dozier, that would amount to $36,000.00. Dr. Dozier also testified that she could anticipate in excess of $850.00 a year in medical bills and prescriptions, or about $23,000.00 over her expected lifetime. These alone add up to $59,-000.00, without considering inflation and the jury was not limited to the amount testified to by the doctor. See City of Houston v. Moore, 389 S.W.2d 545, 549 (Tex.Civ.App.-Houston 1965, writ ref’d n.r.e.).

In summary, we find that the evidence supporting the damages issues was not factually or legally insufficient, was not excessive, nor does it shock the court’s conscience. Lubri-lon’s damages points are overruled.

PREJUDGMENT INTEREST

In a single reply point, Mrs. Spencer contends that the trial court erred in failing to award her prejudgment interest. Prejudgment interest is recoverable as a matter of right when an ascertainable sum of money is determined to have been due and payable at a definite date prior to judgment. Miner-Dederick Construction Corporation v. Mid-County Rental Service, Inc., 603 S.W.2d 193, 200 (Tex.1980); Bethel v. Butler Drilling Company, 635 S.W.2d 834, 842 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.). The crucial factor is whether the measure of recovery or claim is fixed by conditions existing at the time the claim arose or the injury was inflicted. English v. Fisher, 649 S.W.2d 83, 92 (Tex.App.-Corpus Christi 1982), rev’d on other grounds, 660 S.W.2d 521 (Tex.1983). Here, the amount of damages were not definitely fixed or determinable at any point prior to judgment. Appellee’s cross-point is overruled.

INDEMNITY

In the consolidated portion of this appeal, Northwest Mall contends that the trial court erred in its refusal to uphold an attempted indemnity agreement between it and Lubri-lon. Before the jury returned its verdict, Northwest Mall settled with Mrs. Spencer for $350,000.00. The jury awarded Mrs. Spencer $567,000.00. the Mall now claims that the indemnity clause went into effect because the Mall was found 50% negligent, and that Lubri-lon must pay the Mall their half of the $567,000.00 jury award. Lubri-lon argues that the disputed clause was not effective to protect the Mall against their own negligence. Our examination of the clause convinces us that the clause is not enforceable under these facts.

The lease agreement between Northwest Mall and Lubri-lon included the following provision:

The Exhibitor will indemnify The Northwest Mall Joint Venture and Northwest Mall Merchants Association, and any of the merchants leasing space in the mall and/or parking area and save them harmless from and against any and all claims, damages, actions, liability, and expense in connection with the loss of life, personal injury and/or damage to property arising from or out of the occupancy or use by Exhibitor of the premises or any part thereof, or any other part of the shopping center property or occasional (sic), wholly, or in part by any act or omission of exhibitor, it’s (sic) agents, contractors, employees or participants.

In considering the validity of this clause, we must keep in mind that the current trend of Texas law has been progressively stricter in applying the general rule of indemnity. That rule states that a contract of indemnity will not protect an indemnitee against his own negligence unless the obligation of the indemnitor to do so is expressed in clear and unequivocal terms. Eastman Kodak Company v. Exxon Corporation, 603 S.W.2d 208, 211 (Tex.1980). We must then determine whether the instant clause contains a clear statement that Lubri-lon intends to save Northwest Mall harmless from liability for the Mall’s own negligence. See Fireman’s Fund Insurance Company v. Commercial Standard Insurance Company, 490 S.W.2d 818 (Tex.1972). We believe it does not.

While our indemnity provision does include general language referring to Lu-bri-lon’s responsibility for “any and all claims,” it continues to state that Lubri-lon will be required to take this responsibility only when the damages were occasioned by the use of the property by the Exhibitor, Lubri-lon. The clause further provides that Lubri-lon would indemnify the Mall for any damages occasioned in whole or in part by any acts or omissions of Lubri-lon. Under the strict rules announced above, we certainly cannot agree that this clearly and unequivocally states that Lubri-lon will indemnify Northwest Mall for the Mali’s own negligence. In direct contrast, this specifically refers to the negligence of Lubri-lon, without an accompanying assumption of liability for the negligence of Northwest Mall.

Northwest Mall argues that they come under a “premises” exception to the broad general rule announced above. This exception, as found in Fireman’s Fund, states that Northwest Mall would be entitled to indemnity if the agreement was found to be one in which one party clearly undertook to indemnify another party against liability for injuries or damages caused by defects in certain premises or resulting from the maintenance or operation of a specified instrumentality. Fireman’s Fund, 490 S.W.2d at 822. This argument fails on two accounts. First, the indemnity provision here does not contain a clear undertaking of indemnity. Secondly, the Eastman Kodak court has held that this is not really an exception, but rather is simply an application of the general rule. Eastman Kodak, 603 S.W.2d at 212. Consequently, Northwest Mall’s point of error is overruled.

In this portion of the appeal, Lubri-lon attempts to argue that the jury’s findings in regard to the language contained in the indemnity provisions, were unsupported by the evidence and incorrect as a matter of law. They specifically refer to the findings that the occurrence did arise out of the occupancy of the booth and that the occurrence was a result of an act or omission of Lubri-lon. We here reiterate that these findings were supported by the evidence. However, these findings are of no consequence in the context of the validity of the indemnity agreement since such agreement was inadequate to create indemnity as a matter of law.

The judgment of the trial court is affirmed.

ROBERTSON, J., concurs in the result.