author: DWYER, Judge.

text:
    STATE of Tennessee, Appellee, v. Bourke Palmer MYNATT, Jr., Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    July 20, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 17, 1984.

      Carl R. Ogle, Jr., Jefferson City, for appellant.
    William M. Leech, Jr., Atty. Gen. & Reporter, Kimberly J. Dean, Asst. Atty. Gen., Nashville, Richard Vance, Asst. Dist. Atty. Gen., Sevierville, for appellee.
   OPINION

DWYER, Judge.

The defendant, Bourke Palmer Mynatt, Jr., originally was charged with a felony involving violation of the election laws. He was allowed to plead guilty to violating T.C.A. § 2-19-102, a misdemeanor provision, and his 11 month, 29 day sentence was suspended, conditioned upon payment of a $500 fine and costs. Mynatt now appeals, challenging the length of the sentence imposed on the grounds that it is “excessively long under the circumstances presented by this case.”

The record indicates that the defendant went to the County Election Commission to check his voter’s registration card, found what he considered to be an inaccuracy, folded the card and left with it, defying the commissioner’s demand that it be returned. He was charged with a felony under T.C.A. § 2-19-108, felonious possession of official registration or election supplies. Mynatt turned himself in to the sheriff and a few days later returned his card to the election commission. He maintained that he did not know that his action in taking the card was illegal or what the consequences were.

Pretrial diversion was denied, and, despite the fact that Mynatt had no prior record and was the married father of two and a former Optimist Club president, the State resisted suspension of his sentence. The prosecution pointed to Mynatt’s position as chairman of the county Democratic Executive Committee, saying:

... [H]ere’s a man who carries some weight in the political process. He is an official of a Party. He is charged with responsibilities. He is aware of the election laws ... [and] has willfully violated those same election laws.

The trial judge accepted this argument, noting that Mynatt’s “very prominence prevented him claiming ignorance, lack of knowledge, lack of familiarity of the political process.” The trial judge therefore imposed a stiff sentence and fine but immediately suspended the sentence, noting the defendant’s “good record.” The trial judge concluded:

That [disposition] seems to me to meet the ends of justice. The people in this county know that it will not be tolerated. This conviction verifies that.... It will be a deterrence.

On appeal, the State continues to argue that the lengthy sentence imposed is justifiable on the basis of deterrence. While we agree that deterrence was a legitimate factor for the trial court to consider, we do not agree with the State’s argument that the length of the sentence may not be considered excessive as long as it falls within the limits set by the statute. The State relies on State v. Bennett, unpublished opinion of this court released at Knoxville on November 17, 1983, which cites Dukes v. State, 578 S.W.2d 659, 666 (Tenn.Cr.App.1978). With the advent of the Tennessee Criminal Sentencing Reform Act of 1982, that authority may be dated. Unlike here, the Dukes court was concerned with sentencing by a jury and not by the trial court. While the Bennett case was determined under the new sentencing act, it relied on Dukes. We will now review some of the salient facts to support our belief that the sentence imposed in this case was excessive.

After describing the offenses committed by appellant as “trivial” and “not that severe,” the trial court sentenced appellant to the maximum term of imprisonment provided for by the law, 11 months and 29 days, and then suspended the sentence. The trial judge indicated that he did not believe that appellant knew he was committing a felony when he walked out of the Election Commission with his voter’s registration card. He noted that appellant was not attempting to steal an election or deprive anyone of the right to vote. At most, his act could be described as defiant or arrogant.

The trial court also stated his reasons for denying pretrial diversion. The court described the appellant as a good citizen, a civic leader, and a man with a high profile in the community. The court noted that appellant was married, the father of two children, was in his forties and had no prior police record. In view of these remarks, it is apparent that this appellant was a prime candidate for diversion. He had the requisites and was the type of man that in all probability prompted our legislature to enact the pretrial diversion laws.

In complete incongruity to the laudatory remarks of the trial court, appellant was given the maximum possible prison sentence for his crime. While the sentence was immediately suspended, the latter result could have been better accomplished by granting pretrial diversion. This extraordinary relief was designed for those who can show that they were above-average citizens before impulsively committing an offense and that they can be relied upon to practice good citizenship in the future. State v. Poplar, 612 S.W.2d 498 (Tenn.Cr.App.1980). The trial judge clearly found appellant to be an above-average citizen, but it was apparently for this very reason that he denied diversion.

In imposing a sentence, the trial court must be guided by the sentencing considerations set forth in T.C.A. § 40-35-103. The only one of these considerations that this sentence even arguably comports with is T.C.A. § 40-35-103(l)(B), and under these circumstances a sentence of ten days at the most would have provided an effective deterrence. The punishment here clearly does not equate with the remaining considerations set forth in the statute.

In conclusion, this appellant obviously committed an impulsive and irrational act; he should not for that one transgression receive the harshest punishment on this misdemeanor that the law can apply. While, as argued by the State, it is within the limits of the law, the punishment under these circumstances is a far cry removed from the intent of the law. We do not condone this or any violation of the law, but it is also apparent that a sentence of ten days for appellant’s transgression would have satisfied his most severe but fair-minded critic.

We have the authority to reduce this sentence. Thompson v. State, 192 Tenn. 298, 241 S.W.2d 404 (1950); Brooks v. State, 187 Tenn. 361, 215 S.W.2d 785 (1948); McKnight v. State, 171 Tenn. 574, 106 S.W.2d 556 (1937). Indeed, the new sentencing act specifically grants us this authority. T.C.A. § 40-35-402(c)(2). The reduction of excessive sentences on appeal is also in line with the principles set forth in the A.B.A. Standards for Criminal Justice 20-1.2. Accordingly, the sentence of confinement is reduced to 10 days in the county jail. The fine and costs are to remain intact. The judgment is affirmed but modified to reflect that the sentence of confinement for 11 months and 29 days is reduced to 10 days confinement. Our holding does not inhibit the trial court’s authority consistent with this opinion to implement the 10 days confinement or to suspend it.

WALKER, P.J., and DAUGHTREY, J., concur.

      . It was mentioned in oral argument and noted in the State’s brief that appellant’s suspended sentence was revoked following an arrest for D.U.I.

      . In deference to the trial court, in all probability the court would never have imposed the maximum sentence if there had appeared to be any chance that it would have to be implemented.


source: Caselaw Access Project

author: JOHN D. TEMPLETON, Special Judge.

license: Public Domain

text:
    STATE of Tennessee, Appellant, v. Grace FRESEMAN, Appellee.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Aug. 22, 1984.
    Permission to Appeal Denied by Supreme Court Nov. 13, 1984.
    Robert N. Skinner, Nashville, for appel-lee.
    William M. Leech, Jr., Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., David I. Komi-sar, Asst. Dist. Atty. Gen., Nashville, for appellant.
   OPINION

JOHN D. TEMPLETON, Special Judge.

The grand jury, in Nashville returned indictments against various individuals in connection with the operation of a bawdy house, including one against Grace E. Freseman. The judge dismissed the indictments because the assistant district attorney representing the state would not comply with rules of court and orders of the judge. The grand jury reindicted the parties, including Freseman, for offenses growing out of the same operation and in some cases for the same offenses. Although a new assistant district attorney appeared for the state on the second indictments and his conduct of the state’s cases was not objectionable, the judge dismissed the second indictments, too. The state appealed dismissal of the second indictments, not the first, and we have before us the one against Freseman. Concluding the judge erred, we reverse the judgment and remand for trial.

Freseman’s motion to dismiss the second indictment against her included a claim of double jeopardy. The action relied on to support the claim of double jeopardy was the dismissal of the first indictment as a sanction against the state for the conduct of the assistant district attorney. Since the dismissal was for matters unconnected with a determination of guilt or innocence and no trial on the merits commenced, we think no jeopardy attached. Delay v. State, 563 S.W.2d 905 (Tenn.Cr.App.1977).

Freseman’s motion contained no claim of denial of a speedy trial but it appears the claim was advanced in argument. The first indictment was returned February 25, 1983 and finally dismissed July 11, 1983. The second indictment was returned July 15, 1983 and dismissed September 19, 1983. Both were for offenses alleged to have occurred in December 1982. The charges were dismissed on Freseman’s motion and she naturally demanded no trial. The record reveals no prejudice she sustained by the delay. Weighing the conduct of the prosecution and the defendant in the light of the factors prescribed by law, we think there was no such denial of a speedy trial as would entitle her to relief. State v. Bishop, 493 S.W.2d 81 (Tenn.1973).

A reading of the judge’s comments indicates that actually he did not rely on double jeopardy or speedy trial grounds in dismissing the second indictment. He relied entirely on our Rules. As we understand his view, the Rules conferred authority on him to terminate the prosecution altogether which he did by dismissing the first indictment. The case could not be revived by reindictment and he dismissed the second indictment for that reason.

As shown by the minutes, the judge dismissed the first indictment “because of the intentional gross misconduct of the prosecuting attorney by repeatedly refusing to comply with time deadlines established by Rule 12 and 16 of the Rules of Civil (sic) Procedure and Rule 10 of the Local Rules and by refusing to file a bill of particulars as previously ordered by the Court”. The only Rule applicable is Tenn.R.Crim.P. 16(d)(2). Finding unproductive or inappropriate the sanctions of order to comply, or continuance, or exclusion of evidence, the judge elected the only other alternative the Rule makes available to the court which is to “enter such other order as it deems just under the circumstances”. He deemed dismissal the appropriate order. And, as already alluded to, he construed the Rule to authorize termination of the case.

In a civil case involuntary dismissal for failure to comply with the Rules of Civil Procedure or an order of the court is a sanction against the plaintiff expressly provided for. And unless otherwise specified in the order, dismissal operates as an adjudication on the merits. T.R.C.P. 41.02. But there is no express provision in the Rules of Criminal Procedure for involuntary dismissal as a sanction against the state for its failure to comply with discovery rules or orders of the court and no express provision for such a dismissal to be either on the merits or otherwise a bar to reindictment. If such provisions exist at all they exist only by implication in that part of Tenn.R.Crim.P. 16(d)(2) for the court to “enter such order as it deems just under the circumstances”.

Since the dismissal of the first indictment is not appealed, we are not compelled to decide whether the judge in that case abused his discretion or whether under the Rule he had authority to dismiss at all. We address only the dismissal of the second indictment. The procedure under it being uninfected by state misconduct there could be no dismissal for that reason. Our only inquiry is whether dismissal of the first indictment terminated the prosecution and for that reason the second indictment was subject to dismissal. We think not. The order of dismissal of the first indictment did not purport to be on the merits or to foreclose reindictment. And in our opinion the Rule does not imply such a dismissal terminates prosecution.

We conclude the judge improperly dismissed the second indictment. And we reverse and remand for trial or other appropriate proceedings.

O’BRIEN and SCOTT, JJ., concur.


author: CORNELIUS, Judge.

text:
    STATE of Tennessee, Appellee, v. Jack Randall SHULTS, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Oct. 26, 1984.
    Permission to Appeal Denied by Supreme Court Jan. 14, 1985.
    William M. Leech, Jr., Atty. Gen., Kimberly J. Dean, Asst. Atty. Gen., Nashville, Al Schmutzer, Jr., Dist. Atty. Gen., Sevier-ville, for appellee.
    Gordon Ball, Ball & Dunn, Newport, for appellant.
   OPINION

CORNELIUS, Judge.

Jack Shults, indicted in Sevier County, pled guilty to grand larceny and possession of burglary tools. He received concurrent sentences of six and five years respectively with a release eligibility date of thirty percent.

He presents four issues on appeal: no probable cause for his seizure and arrest, failure of the officers to administer the Miranda warning, improper lineup of motor vehicle and, his right after this appeal to petition the trial court to probate his sentence.

In view of the issues raised it is necessary to consider the formal plea agreement. The agreement contains the following:

The defendant agrees to plead guilty to grand larceny and carrying burglar tools and the State agrees to recommend to the Court the following sentence: Grand larceny — 6 years, Range I, 30%; carrying burglar tools — 5 years, Range I, 30%. Sentences to run concurrently, defendant remain on bond pending appeals of search and seizure issues — no probation.
The above terms represent the full agreement between the parties.
Signed this the 27th day of July, 1983.
STATE OF TENNESSEE
/S/ Al Schmutzer, Jr.
DISTRICT ATTORNEY GENERAL
I agree to this freely and voluntarily. I understand that if this agreement is not accepted by the Court I can withdraw my guilty plea.
/S/ Jack Shults
DEFENDANT
/S/ Gordon Ball
DEFENDANT’S ATTORNEY

The trial court accepted the plea agreement and pronounced judgment accordingly. The acceptance order provided “With the consent of the District Attorney General and the court the defendant retains his right to appeal legal issues.”

Appellant claims in his brief that he was “allowed” to appeal all legal issues. This assertion is broader than the plea agreement and judgment of the trial court. Such a claim exceeds the legal bounds of Rule 37(b)(2)(i), T.R.Cr.P., or Rule 3(b) T.R. A.P., which are the authority for a defendant, “upon a guilty plea agreement, to explicitly reserve, with the consent of the State and the trial court, the right to appeal a certified question of law dispositive of the action.” The only issue reserved in the plea agreement was one of “search and seizure.”

None of the four issues in appellant’s brief “explicitly” address the customary search and seizure issue. As a matter of fact, none of the issues present a controlling question of law solely dispositive of the action. However, the procedural rules may arguably be stretched to cover the first issue of seizure without probable cause and save it from the rule that a plea of guilty constitutes a waiver of non-jurisdictional defenses. State ex rel Lawrence v. Henderson, 1 Tenn.Cr.App. 199, 433 S.W.2d 96, 101 (1968); also see Beaty v. Neil, 4 Tenn.Cr.App. 86, 467 S.W.2d 844, 847 (1971). We will consider the first issue.

To resolve the seizure issue we will review the proof presented by the State during the suppression hearing. The suppression hearing was apparently conducted on the day the case was set for trial and after a portion of the jury had been selected. The plea agreement appears to have resulted from the trial court overruling the defense motions.

Teddy Agee, a patrolman for the Sevier-ville Police Department, testified that he investigated the theft of a new truck from McNeely-Whaley Motors on January 25, 1983. He interviewed Randy Fox, Tim Hurst and Randy Justice. These men had shortly before noticed the truck in question and a white over bronze, or brown, early model 1970 or 1971 Oldsmobile Cutlass convertible away from the motor company. Fox had been interested in purchasing the truck so upon seeing it away from the motor company, they approached it. They observed two men pouring gasoline into the truck’s gas tank. Upon their approach, the two men each entered a separate vehicle and left. Mr. Fox followed the Oldsmobile and described the driver as having dark hair and a beard. Officer Agee could not recall if Fox had described his clothing. Agee’s partner relayed the information to the Sheriff's Department with specific instructions for broadcasting on Cocke and Jefferson Counties’ radio frequency.

Officer George Davis, of the White Pine Police Department, testified that he and auxiliary Officer Mike Marie received the driver’s description as a bearded subject wearing a green jacket. While stationed at the intersection of Metzer Highway and Highway 113, they observed the described automobile and driver make a right turn onto the Airport Road. Officer Davis testified the defendant was the driver.

When the officers drove across the highway and activated their blue light, the defendant’s automobile accelerated. A chase in excess of 80 miles per hour ensued and was joined by Officer Dean Smith. The officers were unable to detect a license plate on the chased vehicle. For a brief period, within Cocke County, the chased vehicle eluded its pursuers, but was found unattended behind a church. It bore no license plate.

Approximately a quarter of a mile from where the car had been abandoned, Officers Davis and Marie came upon the defendant walking on the side of the road in the direction of White Pine. Not recognizing him at first, they offered him a ride. As he entered the police vehicle, he was recognized as the driver of the chased automobile. These officers denied questioning defendant as to the theft. They radioed Sheriff Eslinger and Dean Smith to meet them at Walter’s Bridge where the defendant was placed in their custody.

The record clearly demonstrates that the initial intrusion upon the liberty of Shults was the crossing of the highway and activating the blue light. This action was based upon objective facts developed by another officer and relayed by the reliable means of the police radio. There was a logical request for assistance. The relayed facts were strengthened by the high speed vehicular chase. Officer Davis’ statement, during recall for additional cross-examination, that he acted on a “hunch” is belied by his prior testimony. Officers Agee and Davis were able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warranted the intrusion upon Shults’ liberty. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). In the first instance, Davis and Marie were justified in turning on their blue light to make an investigatory stop. When the defendant failed to stop they had an added reasonable suspicion to further their investigatory efforts. After the chase and upon recognizing the defendant, they had probable cause to detain him for further investigation. There is no merit to appellant’s certified issue of seizure without probable cause.

Although we hold to the proposition that issues two, three and four as presented in appellant’s brief were waived by his guilty plea, we have fully considered the record of the suppression hearing. The trial court ruled adverse to defendant on issues two and three. The record contains sufficient evidence to support the trial court’s rulings. The finding of such facts by the trial court would be conclusive in this court had the appellant appealed of right from a guilty verdict following a not guilty plea. See State v. Tate, 615 S.W.2d 161, 162 (Tenn.Cr.App.1981). The issue of no probation was clearly resolved by the plea agreement.

The judgment of the trial court is affirmed.

DWYER and DUNCAN, JJ., concur.


author: DUNCAN, Judge.

text:
    Charlene “Nap” White PATTERSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Nov. 27, 1984.

      Randy Hillhouse, Lawrenceburg, for appellant.
    W.J. Michael Cody, Atty. Gen., David M. Himmelreieh, Asst. Atty. Gen., Nashville, Thomas M. Bottoms, Dist. Atty. Gen., Law-renceburg, for appellee.
   OPINION

DUNCAN, Judge.

The defendant has appealed, after the entry of pleas of guilty in the trial court, seeking our review of an alleged defective search warrant.

The record shows that on January 17, 1984, the defendant entered in the trial court pleas of guilty to possession of marihuana with intent to sell, conspiring to sell or deliver marihuana, and possession of marihuana, receiving a penitentiary sentence of not less than two (2) years nor more than two (2) years on her conviction for the first offense, a like sentence to be served consecutively for her second offense, and a jail sentence of eleven (11) months and twenty-nine (29) days for her third offense, the latter sentence also to be served consecutively.

The record contains no written plea agreement; however, the transcript of the guilty plea hearing indicates that the State and the defendant made an agreement to the effect that the defendant would plead guilty to the two (2) felony offenses and the misdemeanor offense, and that she would receive sentences totalling five (5) years on the three charges.

An appeal does not generally lie from a guilty plea conviction. Ray v. State, 224 Tenn. 164, 451 S.W.2d 854 (1970). A guilty plea, voluntarily and understanding^ entered by a defendant, waives all non-jurisdictional and procedural defects and constitutional infirmities, if any, in any prior stage of the proceeding. State ex rel. Edmondson v. Henderson, 220 Tenn. 605, 421 S.W.2d 635 (1967); Beaty v. Neil, 4 Tenn.Cr.App. 86, 467 S.W.2d 844 (1971).

Nevertheless, the Rules of Criminal Procedure do allow an appeal from a guilty plea in certain cases under very narrow circumstances. Tenn.R.Crim.P. 37. Under this rule, the only avenue for the defendant to legally appeal from her guilty pleas would be if at the time she entered her guilty pleas, she had “explicitly reserved with the consent of the state and of the court the right to appeal a certified question of law that is dispositive of the case.” Tenn.R.Crim.P. 37(b)(2)(i). The problem with the present case is that the defendant did not do this. The record is absent any showing that there was a compliance with the formal steps required by Rule 37(b)(2)(i).

The transcript of the guilty plea hearings indicates that at that time, the State agreed with defense counsel’s statement that the plea agreement included her reservation “to appeal on the search and statement.” At another point in the hearing, defense counsel reiterated that the defendant “would reserve the right to appeal on the search warrant.” The court, in accepting the defendant’s pleas, advised the defendant that “your attorney will reserve the right to appeal the search question.” However, no statements were made in the hearing neither about the necessity for “certification” of the question, nor that the resolution of the question would be “dispositive of the case.” Further, the trial court’s judgments contain nothing about any “explicit” reservation by the defendant to appeal a “certified” question of law that would be “dispositive of the case.”

Thus, we find that the defendant’s search question has not been “certified” for review, as is required by Rule 37(b)(2)(i).

In passing, we would comment that even if the question had been “certified,” a resolution of the question would not have been “dispositive of the case” regarding the defendant’s two (2) felony convictions, as the record indicates that the validity of the search warrant would have no bearing on her felony convictions, but would relate only to her misdemeanor conviction.

We conclude that no question has been properly “certified” to us for review. Accordingly, we hold that the defendant’s appeal must be and is hereby dismissed.

TATUM and CORNELIUS, JJ„ concur.


author: SHUMPERT, Justice.

text:
    Steve NAGY, Appellant, v. The FIRST NATIONAL GUN BANQUE CORPORATION, Appellee.
    No. 05-83-00321-CV.
    Court of Appeals of Texas, Dallas.
    June 6, 1984.

      Robert G. Oake, Jr., Stephen L. Hubbard, Harold Gold, Dallas, for appellant.
    Chris B. Harper, Nancy A. Thomas, Charles L. Perry, Dallas, for appellee.
    Before AKIN, SPARLING and SHUM-PERT, JJ.
   SHUMPERT, Justice.

Appellant Nagy appeals from a judgment rendered under the Deceptive Trade Practices Act, TEX.BUS. & COM.CODE ANN. §§ 17.41-63 (Vernon Supp.1984) (the DTPA). Nagy contends that the court applied an improper standard in finding that he knew or should have known of a collision involving a motor home which he sold and that there was insufficient evidence to support such a finding. Because we agree with these contentions, we need not address his other points of error. In three counterpoints, appellee First National Gun Banque Corporation (First National) contends that its other claims were established as a matter of law and, therefore, the trial court erred in denying these claims. We hold that there was sufficient evidence to support the judgment denying these claims. Accordingly, the judgment of the trial court is reversed, and judgment is rendered that appellee, First National, take nothing.

First National purchased a used 1973 model motor home from Nagy in 1980. Neither party was in the business of buying or selling such vehicles. Nagy had purchased the vehicle used in 1977. First National brought suit alleging that Nagy had made various false representations about the mechanical condition of the vehicle and that it was damaged to the extent that repairs had to be made. After trial to the court, First National was awarded damages on the basis of Nagy’s representation that to the best of his knowledge the vehicle had not been in a collision. First National was awarded three times the amount of its actual damages over $1,000 on the authority of section 17.50(b)(1) of the DTPA. Its claims for damages attributable to other alleged misrepresentations were denied.

Nagy moved for findings of fact and conclusions of law. The trial judge had previously informed the parties what his decision would be and the reasons therefor. These statements, and the discussion thereon, appear in the statement of facts. In response to Nagy’s request, the trial judge filed a document entitled “Findings of Fact and Conclusions of Law.” In that document the trial judge makes no findings or conclusions but refers to the portion of the statement of facts wherein he announced his ruling and the reasons therefor. He incorporates by reference those pages, which are attached to the document entitled “Findings of Fact and Conclusions of Law.” We do not approve of this method of filing findings of fact, nor does it comport with rule 296. The narrative, conversational nature of the “findings” make it difficult to determine exactly what was held. As best we can determine, the trial court found that Nagy knew or should have known that the vehicle had sustained collision damage and, therefore, that his statement was a violation of the DTPA. Both parties on appeal assume that this was the basis of the judgment and since this is the only theory on which the judgment can be upheld, we will discuss these issues as if the trial court had specifically so found.

Actual Knowledge

The trial court found that Nagy knew or should have known that the vehicle had been in a collision. The court concluded that Nagy’s statement, that it had not been in a collision to the best of his knowledge, constituted a violation of the DTPA. Nagy contends that, due to the nature of his representation, liability cannot be established without a finding that he actually knew that the vehicle had been in a collision. We agree.

Nagy represented that to the best of his knowledge the vehicle had not been in a collision. He did not represent that it had not been in a collision. Assuming that the vehicle had been in a collision, and assuming that he had represented that it had not, liability could have been based on the representation without a finding of actual knowledge. Pennington v. Singleton, 606 S.W.2d 682 (Tex.1980). Pennington is distinguishable from this case. In Pennington, the representation made alleged that the boat in question was in excellent and perfect condition. It was not. Liability was found even though the seller believed that his statements were true. The falsity of the representation, not the seller’s intentions, predicated liability. The representation in Pennington was false even though the seller did not know it was false. Here, Nagy represented that to the best of his knowledge the vehicle had not been in a collision. This statement is false only if it can be shown that Nagy actually knew that it had been in a collision. Therefore, liability cannot be based on a finding that he knew or should have known. Without a direct finding of actual knowledge there was no misrepresentation. Misrepresentation is an essential element of First National’s cause of action. Ogden Food Service Corp. v. Mitchell, 614 F.2d 1001 (5th Cir.1980).

First National contends that even if the statement was literally true it could still have been deceptive. The test is whether the statement has a tendency to deceive the ignorant, the unthinking, and the credulous who do not stop to analyze but are governed by appearances and general impressions. Spradling v. Williams, 566 S.W.2d 561, 563 (Tex.1978); Sam Montgomery Oldsmobile Co. v. Johnson, 624 S.W.2d 237, 241 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ). In Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777 (Tex.1980), a salesman stated that he believed the vehicle for sale had an eight-cylinder engine. Other representations as to the number of cylinders were also made. These statements were held to be a violation of the DTPA. In that situation it was immaterial whether or not the salesman actually believed the vehicle had eight cylinders. The various representations, taken as a whole, tended to deceive the non-expert buyer.

There must be some misrepresentation or failure to disclose that constitutes the deception. Nagy’s statement, on its face, did not preclude the possibility that the vehicle had been in a collision prior to the time he purchased it. First National was aware that Nagy was not the original owner. In this respect, our case is easily distinguishable from Duncan. In Duncan, the various representations, taken together, left the buyer with only one possible impression: the vehicle had eight cylinders. A representation by the second owner of a used vehicle, who was not in the business of selling or repairing vehicles, that to the best of his knowledge, the vehicle had not been in a collision, is not a deceptive act absent a showing that he actually knew the vehicle had been in a collision.

Evidence of Actual Knowledge

Nagy further contends that there was no evidence to support a finding of actual knowledge. In deciding this point, we must consider only that evidence and permissible inferences therefrom which support the findings, viewing it in the most favorable light and rejecting all evidence to the contrary. Connecticut General Life Insurance Co. v. Stice, 640 S.W.2d 955, 957 (Tex.App.—Dallas 1982, writ ref’d n.r. e.).

There is no direct evidence that Nagy knew that the vehicle had been in a collision. First National relies on circumstantial evidence. Four facts were shown to support First National’s position. First, Nagy replaced the tires on the vehicle two or three times during the period he owned it. Second, the vehicle was not properly aligned. Third, a rear suspension arm had been broken and welded back together. And fourth, such a break, according to First National’s expert, could have occurred only in a collision. From these facts, First National would have the court infer actual knowledge of the alleged collision.

In order to reach this conclusion, we must infer that because Nagy replaced the tires so frequently he must have known of the alignment problems. This is a reasonable inference. We must then infer that he checked under the vehicle and saw the welded arm. This, too, is reasonable. We must then further infer that upon seeing the weld Nagy became aware that the vehicle had been in a collision. This inference is difficult to support since Nagy was not an expert in this field.

Even if that inference is reasonable, we cannot reach the conclusion that he actually knew of the collision. Even if these inferences are reasonable, they are not permissible because First National is inferring facts from previously inferred facts. Stacking of inferences to reach an ultimate conclusion is not allowed. Briones v. Levine’s Department Store, Inc., 446 S.W.2d 7, 10 (Tex.1969); Regal Petroleum Corp. v. McClung, 608 S.W.2d 276, 278 (Tex.Civ.App.—Dallas 1980, no writ). We hold, therefore, that there was no evidence to support a finding of actual knowledge.

Crosspoints

First National pleaded that Nagy made other misrepresentations concerning the mechanical condition of the vehicle. The court considered these claims and expressly denied recovery. In three crosspoints, First National contends that liability based on these representations was established as a matter of law. We disagree.

First National’s expert witness testified that the alleged defects were present when he examined the vehicle six months after it was purchased. He further testified that these defects probably were present at the time of the purchase but could not rule out the possibility that some, if not all, occurred after the purchase. Therefore, we are unable to hold that First National has established the claims as a matter of law and overrule First National’s crosspoints.

Accordingly, the judgment of the trial court is reversed. Because we hold that there was no evidence to support a finding of actual knowledge, we render judgment that First National take nothing.

Reversed and Rendered.


author: UTTER, Justice. UTTER, Justice.

text:
    Opal Frances HARRELL, Appellant, v. Herbert C. HARRELL, Appellee.
    No. 13-84-077-CV.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 18, 1984.
    First Motion for Rehearing Granted in Part Nov. 21, 1984.
    Second Motion Denied Jan. 10, 1985.

      Ann E. Coover, Coover & Coover, Corpus Christi, for appellant.
    Pat Morris, Corpus Christi, for appellee.
    Before UTTER, YOUNG and SEER-DEN, JJ.

      . In Gordon v. Gordon, 659 S.W.2d 475 (Tex.App.-Corpus Christi 1983, no writ), we remanded the entire property division aspect for a new trial. However, we see no reason why just the issue as to division of retirement benefits could not be remanded for consideration in light of the trial court’s initial award.

   OPINION

UTTER, Justice.

This is an appeal from a take-nothing judgment in a suit for partition of military retirement benefits. Trial was to the court. Findings of fact and conclusions of law were requested and filed. We reverse and remand for a new trial.

Appellant and appellee were married on July 3, 1959, and were divorced on October 29, 1981. During the marriage, appellee served a total of one hundred sixty-eight (168) months in the military. Prior to the marriage, appellee had served a total of eighty-two (82) months in the military. It is apparent from the record that appellee had retired from the military prior to the entry of the final decree of divorce.

The final decree of divorce: (1) dissolved the marriage of parties; (2) awarded con-servatorship and child support of the minor child of the marriage; (3) divided certain community property of the parties; and, (4) assigned liability for certain debts. All relief requested and not expressly granted in the divorce decree was denied. No specific reference was made in the divorce decree regarding appellee’s military retirement benefits. The divorce decree was not appealed and became final.

On May 16, 1983, appellant filed in the trial court an “Original Petition,” in which she alleged that community property, i.e. an interest in appellee’s military retirement benefits, was accumulated during their marriage and was not apportioned by the trial court’s final decree of divorce. In her suit, appellant sought (1) partition of the military retirement benefits in accordance with the parties’ respective interests and prejudgment interest on any sums due her beginning October 29, 1981, and (2) attorney’s fees. On November 3, 1983, the trial court entered a take-nothing judgment. In its findings of fact, the trial court found that:

“9. The military retirement benefits of Herbert C. Harrell were before the divorce court and were requested to be ‘awarded, divided and - partitioned’ as community property set forth in the pleadings of Opal Frances Harrell, and testimony of both parties and as being received in Herbert C. Harrell’s statement of expenses and income.
10. The divorce court in the Harrell divorce considered and disposed of the military retirement benefits by denying all relief requested and not expressly granted in the Decree of Divorce.
11. The divorce court in the Harrell divorce considered and disposed of the military retirement benefits as community property as noted in the unequal division of the other community assets.
******
13. The decision of the divorce court in the Harrell divorce is a final, unap-pealed decision.
14. The issue of the division of military retirement benefits was decided by the divorce court in the Harrell divorce, and any subsequent attempt to partition these benefits is barred by res judicata.
15. Herbert C. Harrell and Opal Frances Harrell are not tenants in common as to the military retirement benefits.
16. The Texas Supreme Court has held that McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), precludes a division of a spouse’s entitlement to military retirement benefits. Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981).
17. The Uniformed Services Former Spouse’s Protection Act does not affect the authority of the Texas Supreme Court’s holding in Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981).”

Appellant now comes before this Court asserting eight points of error.

Appellant’s first, second, third, fourth and sixth points of error attack: (1) the trial court’s finding that the divorce court considered and disposed of the military retirement benefits as community property in its divorce decree; (2) the trial court’s finding that the divorce court considered and disposed of the military retirement benefits by denying all relief requested and not expressly granted in the divorce decree; and, (3) the trial court’s finding that the partition suit of the military retirement benefits is barred by res judicata. It is established that appellant and appellee were divorced subsequent to the United States Supreme Court’s June 26, 1981, ruling in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), and prior to the enactment of the Uniformed Services Former Spouses’ Protection Act, Pub.L. No. 97-252, 96 Stat. 730 (1982), which is now codified in 10 U.S.C. § 1408 (effective February 1, 1983).

The enactment of the Uniformed Services Former Spouses’ Protection Act (hereafter “the Act”) over a year and a half after the United States Supreme Court’s decision in McCarty created by necessity, the very problem before this Court today. Divorces, wherein military retirement benefits are present and which are granted subsequent to the enactment of the Act, can be treated in the same manner as prevailed prior to the McCarty decision. Divorces, wherein military retirement benefits were present and which were granted in the interim period but were not yet final on the date of the enactment of the Act, can be remanded to afford the trial court an opportunity to divide the military retirement benefits in light of its previous division of the parties’ estate and other equitable considerations present at the time of the parties’ divorce. A much more difficult decision comes with applying existing Texas law to those divorce cases, wherein military retirement benefits were present and in which the divorce decree was granted in the interim period became final prior to Congress’ enactment of the Act and were based upon and conformed with the McCarty decision.

Clearly, Congress was aware of the existence of this type of anomaly. S.REP. No. 97-502, U.S.CODE CONG. & AD. NEWS 1982, pp. 1555, 1596 (July 22, 1982) sets forth that:

“The provisions of S. 1814 reversing the effect of the McCarty decision are retroactive to June 26, 1981, the date on which the U.S. Supreme Court issued that decision. That is, the committee intends the legislation to restore the law to what it was when the courts were permitted to apply State divorce laws to military retired pay. Former spouses divorced in the interim period between the McCarty decision and the effective date of this law will have the opportunity to return to court to have their decrees modified in light of this legislation. However, nothing in the bill would mandate payments out of retired pay which had been disbursed during the period between the date of the McCarty decision and the effective date of this legislation.” (Emphasis added.)

Two states have expressly dealt with the problem before us today and, in both instances, have allowed the divorce to be reopened for the purposes of receiving additional evidence and argument with respect to valuation and equitable distribution of military retirement benefits. Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (1984); Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983).

In Gordon v. Gordon, 659 S.W.2d 475 (Tex.App.-Corpus Christi 1983, no writ), this Court examined the circumstances created by a divorce, which was granted subsequent to the McCarty decision but prior to the effective date of the Uniformed Former Spouses’ Protection Act and in which military retirement benefits were present. We concluded that, under rules set forth in Trahan v. Trahan, 626 S.W.2d 485 (Tex.1981), and Cameron v. Cameron, 641 S.W.2d 210 (Tex.1982), a trial court during this period could neither consider nor apportion nondisability military retirement benefits in its division of the community estate upon divorce. Gordon, 659 S.W.2d at p. 477.

Regarding the issue of res judi-cata, appellant’s claim to appellee’s military retirement benefits cannot be barred by res judicata because res judicata applies to those issues, which either were previously litigated or could have been litigated in a prior action. See Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983); Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768 (Tex.1979). Here, the division of the military retirement benefits was precluded, by law, from being litigated at the time of divorce.

Three rules of law are generally accepted regarding the division of community property upon dissolution of a marriage. First, in dividing the property upon divorce, the trial court need not make an equal division; in arriving at its division, the trial court can consider a myriad of equitable considerations, including: (1) disparity in earning power; (2) business opportunities; (3) earning capacities and opportunities; (4) age and physical conditions of the parties; (5) their relative need for future support; (6) educational background; and, (7) financial obligations. Second, when a divorce decree is silent regarding the division of a particular community asset, the ex-spouses become tenants-in-common or joint owners of that asset; and, a subsequent division of that asset is ob-tamed through partition. Third, military retirement benefits are a community asset, which is subject to division upon dissolution of a marriage.

Appellant came before the trial court seeking a partition of appellee’s military retirement benefits. As we have already noted, this would normally be the method for apportioning community property, which was not considered by the trial court in its decree of divorce. However, the circumstances created by retroactive effect of the Act require that we consider whether partition should be applied to the situation at hand.

In a suit to partition undivided community property, filed subsequent to a final decree of divorce, such mandatory partition, in effect, sacrifices a balancing of equities for judicial efficiency. Since the parties have already been provided the opportunity to have the trial court divide certain community property at the time of their divorce, to allow, either inadvertently or otherwise, the parties an additional full-blown trial for the division of other community property not apportioned in their original divorce decree would unreasonably burden the courts and encourage forum shopping. However, in the case at bar, if the parties were not, in fact, prevented from presenting the military retirement benefits to the trial court for division, the trial court was prevented by McCarty from dividing that particular asset. The end result would be the same.

The Texas Supreme Court, in Busby v. Busby, 457 S.W.2d 551 (Tex.1970), recognized that a court-ordered partition of military retirement benefits would probably result in a different division of the benefits than would occur if the trial court was entitled to apportion the benefits in the same manner that it divided the community property before it at the time of the divorce.

There can be little doubt that application of a universal rule for division of property, instead of one, whereby the trial court considers each case on the facts unique to it, can result in inequities. To require a mandatory partition under the facts before us today would, in effect, punish appellee for obtaining a divorce decree, which became final, during the time the McCarty decision controlled the disposition of military retirement benefits. Neither the trial court nor the parties were ever provided an opportunity to have the military retirement benefits and considered apportioned by the trial court as a community asset in the original divorce proceeding. We hold that, even though the trial court could have and, if the case is remanded, might still divide these benefits in a proportion identical to that mandated by partition, the parties are entitled to have the trial court consider the division of the military retirement benefits, a community asset, in the same manner as if the benefits had been before the trial court for disposition at the time of the original divorce.

A partition by this Court of appellee's military retirement benefits would preclude the equitable division of that community asset which should have been made by the trial court at the time of the parties’ now-final divorce; we feel that such a division can and should be accomplished through the use of a bill of review.

Normally, “an inequitable settlement of property is not sufficient ground for new trial after the judgment has become final.” Hoyt v. Hoyt, 351 S.W.2d 111 (Tex.Civ.App.—Dallas 1961, writ dism’d). However, a bill of review may, in fact, be used as a vehicle to attack the property division portion of a divorce decree. Ragsdale v. Ragsdale, 520 S.W.2d 839 (Tex.Civ.App.—Fort Worth 1975, no writ); see Jarrett v. Northcutt, 592 S.W.2d 930 (Tex.1980).

“A bill of review is an equitable proceeding designed to prevent manifest injustice.” French v. Brown, 424 S.W.2d 893 (Tex.1967). It is an independent equitable action brought by a party to a former action seeking to set aside a judgment, which is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979).

In the usual bill of review case, the applicant seeks to set aside a default judgment rendered against him in order that he may have an opportunity to show that he has a meritorious defense to the cause of action alleged by the successful plaintiff. As a general and almost invariable rule in such cases, the moving party must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. (Emphasis added. Citations omitted.)

Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240 (Tex.1974). In Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979), the Supreme Court set forth that: “[t]o the extent there is reliance on the erroneous official information given by an official court functionary preventing the filing of a motion for new trial, the bill of review plaintiff is excused from showing the wrongful conduct, fraud or accident of the opposite party.” Such a holding recognizes that circumstances may arise which require the use of bills of review to be expanded into new areas. It also recognizes that the fault causing the harm can be incurred as a result of someone other than the opposite party.

We believe that, in the case at bar, to allow the parties to litigate the division of the military retirement benefits through any manner other than a bill of review would be manifestly unjust. The judgment of the trial court is clearly based upon erroneous findings of fact and improper application of law. However, we acknowledge the fact that errors by the trial court and by appellant in electing its means of relief were primarily caused by the fact that both had to proceed without guidance regarding the correct procedural remedy (partition or bill of review) under which the relief sought could be obtained. In the interest of justice, we reverse the judgment of the trial court and remand the cause for a new trial, at which time appellant may amend her pleadings to conform with this opinion. See Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80 (Tex.1976); L.M.B. Corporation v. Gurecky, 501 S.W.2d 300 (Tex.1973); Scott v. Liebman, 404 S.W.2d 288 (Tex.1966); and, Hartford Accident & Indemnity Company v. Parrott, 486 S.W.2d 405 (Tex.Civ.App.—Beaumont 1972, no writ).

Since we have held that appellant has improperly sought to divide appellee’s military retirement benefits through partition rather than through a bill of review, we decline to rule on appellant’s fifth point of error, in which appellant alleges that there is no evidence to support the trial court’s finding that appellee is an alcoholic and incapable of sustained employment, and her eighth point of error, in which appellant alleges that the trial court erred in finding that any increase in the retirement benefits after the date of the parties’ divorce is not subject to partition. Any holding on our behalf would be purely advisory. Appellant’s seventh point of error, in which appellant asserts that the trial court erred in finding that appellant and appellee are not tenants-in-common as to the military retirement benefits, is overruled.

The judgment of the trial court is REVERSED and the cause REMANDED.

OPINION ON APPELLEE’S MOTION FOR REHEARING

UTTER, Justice.

In his motion for rehearing, ap-pellee has directed this court’s attention to the fact that the original suit for divorce was tried in the 94th District Court, whereas the suit for partition was tried by the 117th District Court. An action attacking an original judgment by Bill of Review must be brought in the same court in which the judgment was entered. Martin v. Stein, 649 S.W.2d 342 (Tex.App.—Ft. Worth 1983, writ ref’d n.r.e.). Since there is no showing in the record that the jurisdiction of the 94th District Court was invoked in the pending case, it was error for this Court to remand the cause back to the 117th District Court. See Martin; and South Texas Development Co. v. Martwick, 328 S.W.2d 230 (Tex.Civ.App.—Waco 1959, writ ref’d n.r.e.). For this reason alone, we are compelled to reverse the judgment of the trial court and render the appellant take nothing by her suit. We do not, however, intend this disposition to be an adjudication on the merits of any cause of action appellant has by Bill of Review in the 94th District Court regarding her claim to part of appellee’s military retirement benefits.

Appellee has also filed a Motion to Re-tax and Re-adjudge costs on appeal. Ap-pellee also brings forth this contention in his motion for rehearing. In our original judgment, costs of appeal were adjudicated against appellee. We are now of the opinion that costs of appeal should be assessed one-half against appellant and one-half against appellee. Appellee’s motion to re-tax and re-adjudge costs is granted, and costs are adjudged as set forth herein.

Appellee’s third and fourth points of error in his motion for rehearing are sustained. Appellee’s first and second points of error are overruled. Appellee’s motion for rehearing is GRANTED in part and OVERRULED in part. The judgment of the trial court is REVERSED and RENDERED.

      . Both courts have allowed the cases to be reopened based upon court rules, which authorized the reopening of a case for equitable reasons.

      . Smith v. Smith, 458 A.2d 711 (Del.Fam.Ct.1983), would apparently allow the parties to reopen the entire property division aspect of the decree.

      . We emphasize that this departure from the commonly accepted rule regarding partition of undivided community property upon divorce is due primarily to the retroactive application of the Act, which contemplates that, regarding military retirement benefits, the parties should be placed in the position they would have stood, absent the United States Supreme Court’s ruling in McCarty.


author: JUNELL, Justice.

text:
    Ex parte Darwin CRAWFORD, Relator.
    No. C14-84-443CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 15, 1984.

      Walter Mahoney, Jr., Houston, for appellant.
    Susan Myres, Whitmore, Sheppard & Pollicoff, Houston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired)
   OPINION

JUNELL, Justice.

This is a habeas corpus proceeding. On July 28, 1983, the Honorable Bob Robertson of the 308th Judicial District Court of Harris County held relator, Darwin Crawford, in contempt of court for violating provisions in a divorce decree ordering him to pay child support. The written order of contempt was signed August 3,1983. Punishment for the contempt was set at 30 days confinement in the county jail. Further confinement was ordered until relator purged himself of contempt by paying the back child support of $1,600, attorney’s fees and costs.

Enforcement of the order holding relator in contempt was suspended upon the conditions that relator pay $100 cash to his former wife that day and the $1500 balance, attorney’s fees ($875) and costs ($53) by September 7, 1983. All parties were ordered to appear September 8, 1983, for a hearing to determine whether relator had complied with the order. Relator did not appear September 8, 1983. He successfully evaded appearance before the court until he was arrested on a writ of attachment and brought before the court June 28, 1984. On that day the court conducted a hearing and found that the relator had failed to comply with the conditions in the July 28, 1983, contempt order and signed a commitment order under which the relator was held until released on bond pending hearing on this habeas corpus proceeding.

Before an appeals court may order the release of a relator in a habeas corpus proceeding, the trial court’s order must be void either because it was beyond the power of the court or because it deprived the relator of his liberty without due process of law. Ex parte Barnett, 600 S.W.2d 252, 254 (Tex.1980). Relator does not challenge the trial court’s jurisdiction. All of his arguments are based on due process.

Relator proposes three reasons that his confinement is illegal: (1) that the divorce order is so vague and ambiguous that it cannot be enforced by contempt, (2) that relator had no notice of the allegations against him at the June 28, 1984, hearing and (3) that the commitment order is void because it does not specify when and how relator violated the order of the court nor for which violation he is being punished. We find that the relator was properly committed to the Harris County jail and deny his application for writ of habeas corpus.

The portion of the March 4,1983, divorce decree ordering the relator to pay child support contains hand-made deletions and changes. The original typed version ordered payment of $300 per child for a total of $600 a month. The changes were obviously intended to lower the support obligation to $200 per child, for a total of $400 per month. Unfortunately, not all of the figures were corrected so that the decree, as corrected by hand, actually reads,

IT IS DECREED that DARWIN RAY CRAWFORD pay to CONNIE JEAN CRAWFORD child support in the amount of $300.00 per month, per child, for a total of FOUR HUNDRED DOLLARS, ($400.00), monthly, with the first payment of SIX HUNDRED DOLLARS, ($400.00), being due and payable on the 15th of each month, commencing March 15, 1983 and a like payment being due and payable on the same day of each month thereafter until the oldest child reaches the age of 18, or is otherwise emancipated, at which time the payments shall be THREE HUNDRED DOLLARS, ($200.00), per month until the youngest child reaches the age of 18.

The divorce decree recites that relator did not appear or file answer and did wholly default.

The relator cites the rule in Ex parte Slavin, 412 S.W.2d 43 (Tex.1967) that a person cannot be held in contempt for failing to follow an order that is ambiguous or susceptible to different meanings or constructions. In Slavin the relator was a father who reduced his child support payments after one of his children reached majority. The court was not faced with a relator who completely ignored his obligation to support his children. Even with the carelessly made revisions in the March 4, 1983, decree relator was made aware that he was at least obligated to pay the lesser amount of $400. If he had any doubts as to what was required of him, he could have had the matter cleared up. See Garza v. Fleming, 323 S.W.2d 152, 156 (Tex.Civ.App.—San Antonio 1959, writ ref’d n.r.e.).

We agree with Justice Reeves’s dissenting opinion in Ex parte Longoria, 671 S.W.2d 673, 675-76 (Tex.App.—San Antonio 1984, no writ). A relator who knows with certainty he was either to pay X amount or Y amount under an order can be punished for contempt for choosing to ignore the order completely.

Further, we hold that the relator has waived his right to complain about any ambiguity in the divorce decree when he agreed to the judgment of contempt rendered July 28, 1983. We do not have before us a statement of facts for any of the court hearings involved, but both parties in their briefs call the July 28, 1983, order an “agreed order.” That order finds the relator in arrears in the amount of $1,600. Both the Motion for Contempt for Failure to Pay Child Support and the Order to Show Cause setting the July 28,1983, hearing allege that relator failed to pay $400 a month for March, April, May and June of 1983. Relator was clearly put on notice that the court was being asked to enforce the March 4, 1983, divorce decree to the extent it ordered payments of $400 per month as child support. There is no indication that relator disputed the court’s interpretation of the divorce decree even as late as June 28, 1984, when he was before the court in the delayed compliance hearing. It was only when the relator was finally in jail that he decided that the decree was ambiguous.

Relator also argues that he has been denied due process because he had no notice of the allegations against him prior to his “trial for constructive contempt.” Apparently, relator is speaking of the June 28, 1984, compliance hearing. It is well settled that imprisonment for contempt without notice and hearing is a denial of due process. Ex parte Herring, 438 S.W.2d 801 (Tex.1969). It is equally clear that when a person has been found in contempt for violating a court’s previous order, but his punishment is suspended on condition of his compliance with certain terms and conditions, the court must afford him a subsequent hearing to determine whether he breached any of those terms and conditions before he can be committed to jail. Ex parte Pena, 636 S.W.2d 741 (Tex.App.—Corpus Christi 1982, no writ).

Relator was found in contempt July 28, 1983. That finding was put in writing and signed August 3, 1983. The contempt order itself gave relator sufficient notice of the compliance hearing when it ordered him to appear September 8, 1983, for a hearing to determine “whether Respondent has complied with this Order.” A similar procedure was upheld in Ex parte Pappas, 562 S.W.2d 865, 867 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ) and Ex parte Lee, 568 S.W.2d 689 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ). The compliance hearing was not held until June 28, 1984, only because the relator himself ignored the court’s orders and evaded its processes. The court’s docket sheets unveil this scenario leading to the relator’s commitment. When relator did not appear for the September 8,1983, compliance hearing, the court issued a writ of attachment and bond was set at $2,000. Relator was arrested October 25, 1983, and released when a surety posted bond. He was sworn to return December 22, 1983, but again failed to appear. A second writ of attachment was issued but apparently went un-served. A third writ of attachment was issued June 13, 1984, under which relator was arrested and brought before the court June 28, 1984. Finally, the compliance hearing could be held. The court was correct in issuing the writs of attachment and delaying hearing until the relator was present. Such a procedure is mandated in Ex parte Johnson, 654 S.W.2d 415 (Tex.1983).

At submission relator argued that he was never given notice of what allegations he would face at the compliance hearing. The contempt order directed relator to appear September 8, 1983, “at which time it shall be determined whether Respondent has complied with this Order.” Directly above this language were the terms and conditions under which enforcement of the contempt order was suspended. Relator was given until September 7, 1983, to comply-

It would have been impossible for the court or the movant to delineate for relator the exact allegations that would be considered September 8, 1983, because no one would know until September 7, 1983, whether relator had complied. Relator clearly had notice of what was required of him to stay out of jail. He chose to ignore that notice and cannot now complain.

Relator’s last argument is that the commitment order itself is void because it does not specify when and how relator is found to have violated the order of the court nor for which violation he is being punished.

A written order of commitment is made for the purpose of enforcing a contempt judgment by directing imprisonment of the eontemnor. It is a warrant or order of process by which a court directs a ministerial officer to take a person to jail or to prison and detain him there. A commitment order can be included in the contempt judgment or stand as a separate document. Ex parte Arapis, 157 Tex. 627, 306 S.W.2d 884, 886 (1957). There is no particular form required for a commitment order. Ex parte Palmateer, 150 Tex. 510, 243 S.W.2d 160 (1951). Since this commitment order is based upon a finding of contempt, it must be read in conjunction with the contempt order of July 28, 1983, (signed August 4, 1983) to determine its validity.

The June 28, 1984, commitment order under which relator was jailed recites that the relator “stands charged with Contempt of Court in failing and refusing to comply with the terms of the judgment/order” entered July 28, 1983. The commitment order would have been more precise if it had recited that the relator “stands charged with failing and refusing to comply with the conditions upon which enforcement of the court’s contempt order of July 28,1983, was suspended, such order of July 28, 1983, having adjudged Darwin Ray Crawford to be in contempt for failing to pay child support of $400 per month on March 15, April 15, May 15 and June 15, 1983, as ordered in the divorce decree signed on March 4, 1983.” Nevertheless we hold that the commitment order as written sufficiently tells relator why he is being punished and under what charge he is held. The July 28, 1983, contempt order referred to in the commitment order specifically states that relator is in contempt for failing to pay four months of child support payments of $400 each and assesses punishment at 30 days in jail. Not all drafting errors invalidate an otherwise complete commitment order. Ex parte Benitez, 590 S.W.2d 704, 707 (Tex.1979); Ex parte Hall, 611 S.W.2d 459, 460-61 (Tex.Civ.App.—Dallas 1980, no writ). The commitment order viewed as a whole is sufficiently clear and certain and states in which respect the court’s previous order had been violated. Cf. Ex parte Jenkins, 593 S.W.2d 395 (Tex.Civ.App.—Dallas 1980, no writ).

A commitment order containing coercive provisions, as did this one, must additionally specify in clear and unambiguous language what the imprisoned one is required to do in order to be released. Ex parte Proctor, 398 S.W.2d 917 (Tex.1966); cf. Ex parte Nivens, 592 S.W.2d 1 (Tex.Civ.App.1979—Houston [1st Dist.] 1979, no writ). Again this commitment order meets this requirement, but it contains an error that can be corrected now.

At the July 28, 1983, contempt hearing relator was found in contempt for failing to pay $1,600 in child support and charged with costs of $53 and attorney’s fees of $375. The commitment order states that the relator must pay attorney’s fees of $1,835 before he can be released. The commitment order is based upon a finding of contempt made July 28, 1983. At that time the court fixed the attorney’s fees. Relator did not have notice before the compliance hearing that he could be charged with additional fees. It is regrettable that this ruling leaves the movant’s attorney unrewarded for diligently pursuing this case. This result could have been avoided if the contempt order had stated that relator would be held for additional attorney’s fees should he fail to comply and further proceedings became necessary.

Application for writ of habeas corpus is denied and relator is remanded to the custody of the sheriff of Harris County for confinement pursuant to the lower court’s order of commitment, except that attorney’s fees of $1,835 shall be reduced to $375.


author: CANNON, Justice.

text:
    Bobby Ray JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. B14-84-215CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 21, 1984.

      Sandra Kimble, Houston, for appellant.
    Winston E. Cochran, Jr., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

Appellant appeals from a jury conviction of possession of a controlled substance with intent to deliver. After appellant pleaded true to an enhancement allegation, the jury assessed punishment at 50 years.

As is common in many criminal cases, this case presents two different versions of how the arrest and search occurred. Since the jury chose to believe the state’s witnesses, the following facts were taken from their testimony.

Officer Dyess, assigned to the Houston Police Department Tactical Squad, was working the Northeast area of Houston on May 24, 1983. He witnessed the transaction in dispute while standing between two houses on Rawley street. With the aid of binoculars, Dyess observed the actions of the appellant. Appellant was standing outside Hall’s Gameroom on Rawley Street when a gray vehicle stopped in front of the appellant. The driver got out of his vehicle, approached appellant, and after a brief conversation, appellant walked over to a blue Ford parked next to the gray vehicle. Dyess observed appellant remove a key from a ring hanging from his waist and appear to unlock the door of the blue Ford. Appellant removed a brown paper sack from the Ford, then approached the driver of the gray vehicle and exchanged a small plastic bag for some cash. The plastic bag contained a white powder, which appeared to be cocaine. As the gray vehicle drove away, appellant returned the brown paper sack to the Ford.

Officer Dyess left his observation point and met his partner, Officer Calaway, who was in the patrol car a few blocks away. They proceeded to the Northeast police substation for the purpose of drawing up a search warrant for the blue Ford. Before Dyess could draft a search warrant affidavit, he received information that the Ford was going to move shortly; therefore, he and his partner returned to Rawley Street.

Dyess exited the patrol car and approached the gameroom from one direction, while his partner in the patrol car approached from the other. When Dyess walked around the corner of the game-room, he observed appellant sitting in the front seat on the passenger side of the blue Ford. He stood at the corner of the game-room until 'his partner came around the other corner. When the appellant noticed Officer Calaway approaching in his patrol car, he exited the blue Ford and Dyess stepped up next to him. At this time, Dyess observed the butt of a pistol protruding from under the armrest of the front seat. Appellant was told to step to the rear of the Ford. Dyess informed his partner of the presence of the pistol and instructed him to watch appellant. Dyess reached in the Ford, raised up the armrest, and retrieved the sack containing the protruding pistol. He unloaded the pistol and examined the contents of the sack, which contained $400 cash and four plastic bags of a white powdered substance he believed to be cocaine.

Appellant was placed under arrest and the Ford was subjected to an inventory search prior to being towed. This search revealed another pistol under the front seat and a blue bag containing the appellant’s identification.

Prior to trial, a hearing was held on appellant’s Motion to Suppress. Appellant sought suppression of any and all evidence seized from his person or the blue Ford. The trial judge overruled this motion, and after a jury trial he brings this appeal.

The appellant brings to this court an appeal based on one ground of error presented in an unusual manner, because the ground of error and the argument which follows it do not comport. The ground of error challenges the admissibility of the controlled substance at trial on the premise it was obtained as a result of an unreasonable search and seizure. On the other hand, the argument presented by appellant does not directly support the ground of error; rather, it attacks the overruling of his motion to suppress at the pre-trial suppression hearing. Due to the manner in which this ground is presented, we choose to answer it in a two-pronged approach.

First, in appellant’s argument he attacks the court’s overruling his motion to suppress. He argues that the State’s failure to rebut the testimony presented by the defense at the pre-trial hearing was error. Further, that because the state did not put on any evidence, it failed to prove the legality of the warrantless arrest and search. We disagree.

At the pre-trial suppression hearing, appellant testified on his own behalf. The state did not offer any evidence nor call any witnesses to rebut the defense testimony; however, on cross examination, appellant testified to several crucial facts. Among these facts were: (1) appellant did not own the blue Ford from which the drugs were taken; (2) nothing was taken from the Ford which belonged to him except a pistol, placed there by the true owner of the Ford, Johnny Lee Austin; (3) appellant denied ever driving the car or having been in the car that day; (4) he was left in possession of the key to the Ford while Johnny Lee Austin went next door. In other words, appellant disassociated himself from the ownership or control of the blue Ford.

It is well recognized that a defendant may challenge a search and seizure only if he had a legitimate expectation of privacy in the place where the police found the evidence. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Liebman v. State, 652 S.W.2d 942 (Tex.Crim.App.1983) (en banc); Rozell v. State, 662 S.W.2d 634 (Tex.App.—Houston [14th Dist.] 1983, no pet.). The appellant readily admitted on the witness stand he had no interest whatsoever in the car or its contents. The

appellant may not now complain the search and seizure was unlawful simply because the evidence was used against him. He must stand behind his suppression hearing testimony, which leads this court to find appellant had no standing to challenge the search which produced the cocaine. “Where, as here, the appellant disclaims ownership of an automobile he forfeits his standing to contest the search thereof.” Sullivan v. State, 564 S.W.2d 698, 702 (Tex.Crim.App.1978) (en banc); Hensley v. State, 494 S.W.2d 816, 817 (Tex.Crim.App.1973). Therefore, we find the trial court was correct in overruling appellant’s motion to suppress.

This court is aware of the recent decision of Wilson v. State, No. 921-83 (Tex.Crim.App., September 19, 1984) (not yet reported), where the court held the state may not raise standing for the first time on appeal. However, the Court of Criminal Appeals went on to hold that Sullivan v. State is to be applied narrowly and that its application is limited only to those situations where an absurd result would occur.

In Sullivan v. State the Court of Criminal Appeals held:

To hold that a search and seizure is illegal even though the record before this court and the evidence before the trial judge shows the defendant had no standing to challenge the search simply because the prosecutor did not verbalize the issue would be to reach an absurd result.

In the more recent case of Wilson v. State, the Court of Criminal Appeals held that Sullivan v. State, announced an exception to the general rule that the state may not raise standing for the first time on appeal. The court in Sullivan v. State relied on four principles as justification for allowing the state to raise standing for the first time on appeal. We follow this theory and compare the case at bar.

First, the evidence must affirmatively show the appellant could have entertained no reasonable expectation of privacy in the automobile. Here, it is clear from appellant’s pre-trial suppression hearing testimony that he claimed no interest in nor control over the blue Ford. Therefore, he could claim no expectation of privacy in an automobile from which he completely disassociates himself.

Second, it would be absurd to hold that a search and seizure was illegal where the record before this court and the evidence before the trial judge showed the appellant had no standing to challenge the search. Based on the pre-trial suppression hearing testimony, it was clear to the trial judge and to this court that appellant had no standing to challenge the search. To hold otherwise would be to reach the absurd result feared in Sullivan v. State.

Third, the state must not claim appellant had sufficient possession of the automobile for purposes of conviction, but did not have sufficient possession to confer standing to challenge the search. The state must take consistent positions. In the present case, Dyess observed the apparent sale of cocaine from a paper sack stored in the front seat of the Ford. Here, the police did not try to prove appellant owned the car; only that he knew about the cocaine and used the car to store it. Therefore, the state’s positions are consistent.

Although the Court of Criminal Appeals delineated a fourth element or justification of the Sullivan v. State test, we perceive this fourth point not to be an element of the test but merely a supplemental explanation of the effect of another case relevant to this issue. This case, Maldonado v. State, 528 S.W.2d 234 (Tex.Crim.App.1975) declares the general rule that the state may not raise standing for the first time on appeal. The exception to this rule is to apply the test set out in Sullivan v. State.

We follow the court’s holding in Wilson v. State and apply Sullivan v. State narrowly to the case at bar. We find this case analogous to Sullivan v. State and hold that because the state did not specifically raise standing at the pre-trial suppression hearing, its waiver on appeal would be an absurd result in light of the evidence that standing was lacking.

We now move to the second part of our two-pronged approach to this appeal. The ground of error alleges the trial court erred in admitting into evidence an alleged controlled substance that was illegally obtained from an unreasonable search and seizure. This ground of error is unsupported by authority or argument, thus this court need not address this ground. Tex. Code Crim.Proc.Ann. art. 40.09 (Vernon Supp.1984). However, in the interest of justice, we will inquire into the lawfulness of the arrest and search.

The evidence reveals that Officer Dyess witnessed the exchange of money for a plastic bag containing a white powdered substance. As an experienced officer, it was reasonable for him to assume this substance was cocaine. The only method to be absolutely sure the substance was cocaine would have been for him to test it, an unlikely event. Under Tex.Code Crim.Proc.Ann. art. 14.01(b) (Vernon 1977) a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. The sale of cocaine could hardly be considered an exception to this rule. Therefore, we find Officer Dyess had probable cause to believe that an offense had been committed in his presence. See Boyd v. State, 621 S.W.2d 616 (Tex.Crim.App.1981); Gonzales v. State, 638 S.W.2d 41 (Tex.App.—Houston [1st Dist.] 1982, pet. ref'd).

We now consider the reasonableness of the search. When a peace officer possesses probable cause that a motor vehicle contains contraband or the instrumen-talities of a crime, a valid search can be conducted in the area of the vehicle where the facts justify the officer’s belief that such evidence is concealed. Christopher v. State, 639 S.W.2d 932, 935 (Tex.Crim.App.1982) tracks the leading state and federal authority on this issue.

In the present case, Officer Dyess observed appellant selling what he believed to be cocaine from the blue Ford. He observed appellant place the paper bag in the automobile after the sale. Under these circumstances, Dyess had probable cause to search the Ford for contraband. Also, when Dyess approached appellant, he immediately observed in plain view the butt of a pistol protruding from beneath the armrest on the front seat. Officer Dyess was justified in seizing the pistol for his safety and the safety of his partner.

Furthermore, inventory searches pursuant to a lawful impoundment are not in violation of the Fourth Amendment. The appellant was placed under custodial arrest and there was no one to whom the police could have given possession of the automobile. Therefore, the impoundment was lawful and the inventory search prior to having the car towed was lawful. Whether the car is searched prior to lawful impoundment or at the city pound makes no difference. Daniels v. State, 600 S.W.2d 813, 815 (Tex.Crim.App.1980).

Accordingly, the judgment of the trial court is affirmed.