author: PER CURIAM.

text:
    C.G. GIFFIN, Relator, v. The Honorable R.L. SMITH, Judge et al., Respondents.
    No. C-3887.
    Supreme Court of Texas.
    April 10, 1985.

      Garrett, Letbetter and Payne, Tom R. Letbetter and George Payne, Houston, for relator.
    Elena R. Maslia, Houston, for respondents.
   ORIGINAL MANDAMUS PROCEEDING

PER CURIAM.

This is an original proceeding in which C.G. Giffin seeks to have this court issue a writ of mandamus directing the district court to vacate its order overruling his motion to compel answers to deposition questions and to enter an order compelling answers to these questions. We grant the motion for leave to file petition for writ of mandamus and, pursuant to Tex.R.Civ.P. 483, without hearing oral argument, conditionally grant the relief requested.

This proceeding arises out of a lawsuit brought by Giffin against several corporations on theories of slander and breach of an employment contract. In the course of conducting pre-trial discovery, Giffin sought to depose William P. Costantini, general counsel and vice-president of one of the corporate defendants, concerning his knowledge of certain allegedly slanderous statements. Costantini refused to answer some twenty-three (23) questions relating to these statements, including two questions requesting the identities and locations of persons having knowledge of relevant facts regarding Giffin’s alleged acceptance of kickbacks while he had been employed by one of the defendants. This allegation is the subject of Giffin’s slander action. The basis given for Costantini’s refusal to answer these questions was that the information sought was protected from discovery by either the attorney-client privilege or the investigative privilege set forth in Tex.R.Civ.P. 166b, subd. 3 d.

Giffin filed a motion to compel Costantini to answer each of these questions. The trial court ordered that Costantini answer only one out of the twenty-three questions and overruled Giffin’s motion in all other respects. The court of appeals denied Gif-fin’s motion for leave to file a petition for writ of mandamus in that court and he sought the same relief from this court.

With regard to the first two of the twenty-three questions, the trial court’s refusal to compel answers from Costantini conflicts with our rules. Rule 166b, subd. 2 d specifically makes discoverable the identity and location of persons having knowledge of relevant facts. The final paragraph of Rule 166b, subd. 3 expressly states that none of the exemptions from discovery contained in that division of Rule 166b shall be construed to render nondis-coverable the identity and location of any person having knowledge of relevant facts. The exemptions from discovery recognized in Rule 166b, subd. 3 include any matter protected from disclosure by privilege. The plain language of Rule 166b thus makes it clear that information concerning the identity and location of persons having knowledge of relevant facts can never be protected from discovery. The first two of the twenty-three questions at issue herein requested only the names and addresses of all persons having knowledge of relevant facts regarding Giffin’s alleged receipt of kickbacks. The trial court clearly abused its discretion in refusing to compel answers to these two questions.

The remaining questions to which the trial court refused to compel answers concerned communications to which Costantini was a party and which dealt with Giffin’s alleged receipt of kickbacks.

Rule 166b, subd. 3 d exempts from discovery the following matters:

with the exception of discoverable communications prepared by or for experts, any communication passing between agents or representatives or the employees of any party to the action or communications between any party and his agents, representatives or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen_

(Emphasis added). Tex.R.Civ.P. 166b, subd. 3 d. The record contains no evidence to support a finding by the trial court that any of these communications were “made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen.”

Rule 166b, subd. 3 e exempts from discovery “any matter protected from disclosure by privilege.” Respondents assert that the communications in question are entitled to protection from discovery under the attorney-client privilege.

Rule 503(b), Tex.R.Evid. provides the following general rule with regard to the attorney-client privilege:

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer’s representative, (2) between his lawyer and the lawyer’s representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer, or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

(Emphasis added.) Tex.R.Evid. 503(b).

Rule 503(a)(5), Tex.R.Evid., provides the definition of “confidential:”

(5) A communication is “confidential” if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

Tex.R.Evid. 503(a)(5).

The record in this cause contains no evidence to support a finding that any of the communications to which the attorney-client privilege has been asserted meet the confidentiality requirement set forth in the Texas Rules of Evidence. The burden is on the party asserting a privilege from discovery to produce evidence concerning the applicability of the particular privilege to the communication in question. Here, that burden simply was not carried.

Our ruling does not prevent the real parties at interest herein, the defendants in Giffin’s lawsuit, from producing evidence which will support a finding that the communications in question are entitled to protection from discovery under either the attorney-client privilege or the investigative privilege. We hold only that, under the present record, the district court’s refusal to grant Giffin’s motion to compel answers to deposition questions was a clear abuse of discretion.

We are confident that Judge Smith will abide by our decision. A writ of mandamus will issue only if he fails to do so.


source: Caselaw Access Project

author: CLINTON, Judge. TEAGUE, Judge,

license: Public Domain

text:
    Ex parte Jose Manuel MALDONADO.
    No. 69149.
    Court of Criminal Appeals of Texas, En Banc.
    April 17, 1985.

      Ramon Cavazos, Houston, for appellant. John B. Holmes, Jr., Dist. Atty. and Roberto Gutierrez, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is an application for writ of habeas corpus brought pursuant to Article 11.07, V.A.C.C.P.

Applicant was indicted for the offense of aggravated robbery by use and exhibition of a deadly weapon as proscribed by V.T. C.A. Penal Code, § 29.03(a)(2), in Cause No. 269433 in the 248th Judicial District Court of Harris County. Subsequently, on January 20, 1978, a jury found applicant guilty of aggravated robbery. After a presen-tence investigation was conducted, the trial judge sentenced applicant to not less than five nor more than 10 years confinement in the Texas Department of Corrections.

Applicant now contends his confinement is unlawful “due to the fact that he was denied due process of law.” The only factual averment made by applicant in support of this legal conclusion is:

“Although he was indicted for aggravated robbery, the jury was improperly instructed for an offense other than aggravated robbery and the defendant was later ajudged [sic] guilty of aggravated robbery and then sentenced as such.”

In Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985) (Opinion on State’s motion for rehearing), the Court held that charge error which has not been objected to will not form the basis for successful attack on a conviction “unless it appears from the record that the defendant has not had a fair and impartial trial.” See also Article 36.19, V.A.C.C.P. In Part II of our opinion in Almanza, supra, we discussed the fact that “finding error in the court’s charge to the jury begins — not ends — the inquiry” and quoted from the opinion in Davis v. State, 28 Tex.Ct.App. 542, 13 S.W. 994, 995 (1890), to illustrate some of the considerations uniquely appropriate to determining the degree of harm attending any given error.

In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief. In the context of an allegation of an egregiously erroneous charge, one which rises to the level of having denied the applicant a fair and impartial trial, this requirement of pleading will be strictly pursued. In other words, it is not sufficient that the petition allege the denial of a fair and impartial trial or due process of law, which are mere conclusions of law; neither is it adequate to allege the bare fact that the court’s charge was somehow erroneous.

Rather, the applicant must allege the reasons a given error in the charge, in light of the trial as a whole, so infected the procedure that the applicant was denied a fair and impartial trial. Once alleged, the burden on the applicant to prove such a denial is heavy and cannot be carried by merely attaching a certified copy of the court’s charge to the application for writ of habeas corpus, as was done here.

The application before us utterly fails to allege facts which, if true, entitle the applicant to collateral relief; the application is accordingly dismissed. This dismissal is without prejudice to applicant’s right to replead and support this allegation with adequate reasoning, argument and testimonial and recorded evidence which illustrates the error so infected the trial process as to deny him a fair and impartial trial.

It is so ordered.

TEAGUE, Judge,

dissenting.

In this cause, it should not be open to question that had counsel on direct appeal for Jose Manuel Maldonado, applicant, or any member of the panel of this Court which decided his cause, see the unpublished opinion of Maldonado v. State, 629 S.W.2d 957 (Tex.Cr.App.1982), which panel was composed of Judges Odom, Davis, T., and Clinton (who is the author of the majority opinion in this cause), observed that the trial court’s charge was fundamentally defective, Maldonado’s conviction would have been set aside in 1982, because the error in the trial court’s charge to the jury caused the verdict of the jury to be erroneous, because the jury was not required to find essential elements of the offense of aggravated robbery beyond a reasonable doubt; a more egregious error of which I am unable to imagine can occur.

I must ask the majority: If Maldonado is not entitled to post-conviction relief because he was convicted by a jury on an erroneously and fundamentally defective jury charge, then why is he not entitled to relief because of ineffective assistance of counsel on appeal, or why is he not entitled to relief because of the Panel’s error in not “catching” the error in the charge when the cause was before the panel on direct appeal?

Something is sadly wrong with our system when one such as Maldonado does not obtain relief because of the egregious error that was present in his trial, as well as the manner in which his appeal was handled.

We learn today, however, that “Almanza the Terrible,” see Kucha v. State, 686 S.W.2d 154 (Tex.Cr.App.1985), (Teague, J. Concurring Opinion), which figure of speech is a shorthand rendition I have given for this Court’s decision of Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), was not really an aberration on the part of this Court, but that the opinion represents only an extension of “Coleman the Horrible,” which figure of speech is a shorthand rendition I have given for this Court’s decision of Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr.App.1978), which held that fundamental error in a trial court’s charge could not be raised through an application for post-conviction habeas corpus relief: “The writ of habeas corpus cannot be utilized, after conviction, to point out alleged errors in a court’s charge, as these are matters which should be urged on appeal quoting from Ex parte Gomez, 389 S.W.2d 308, 310 (Tex.Cr.App.1965) cert. denied 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810 (1967). Cf., however, Ex parte Clark, 597 S.W.2d 760 (Tex.Cr.App.1980).

The majority implicitly tells Maldonado to go back to “the writ room” and take the following test before he repleads: “In a postconviction collateral attack, the burden is on the applicant to allege and prove facts which, if true, entitle him to relief. In the context of an allegation of an egregiously erroneous charge, one which rises to the level of having denied the applicant a fair and impartial trial, this requirement of pleading will be strictly pursued. In other words, it is not sufficient that the petition allege the denial of a fair and impartial trial or due process of law, which are mere conclusions of law; neither is it adequate to allege the bare fact that the court’s charge was somehow erroneous. Rather, the applicant must allege the reasons a given error in the charge, in light of the trial as a whole, (footnote omitted), so infected the procedure that the applicant was denied a fair and impartial trial. Once alleged, the burden on the applicant to prove such a denial is heavy and cannot be carried by merely attaching a certified copy of the court’s charge to the application for writ of habeas corpus, as was done here.”

I must ask the majority one last question — in this cause: “Is Ex parte Clark, supra, also no more?”

All that I can say to Maldonado, when he takes the above test in “the writ room,” is “Lot’s of luck,” because I do not believe that either he or any other inmate in the Department of Corrections can pass the test that the majority has devised.

To the majority’s extension of Almanza v. State, supra, to this cause, I must respectfully dissent.

      . See Part II of Almanza, supra.

      . In Ex parte Coleman, 599 S.W.2d 305 (Tex.Cr. App.1978), the Court denied relief, recognizing what Almanza acknowledges: what was then being labeled “fundamental charge error” did not necessarily bear an essential relationship to denial of a fair and impartial trial. Accordingly Coleman held that “fundamental charge error" as it was known in 1978 would not support a postconviction collateral attack unless it was shown that due process rights had been violated. Since Almanza, however, by definition “fundamental error” means an egregious error that creates such harm as to deprive accused of a fair and impartial trial. Though its factual premise no longer exists, the reasoning in Coleman, along with its embracing the test pronounced by the Supreme Court in Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973), is the essence of the rationale of Almanza.

      .Before counsel and applicant determine whether to replead and file this application, a thorough review of Woods v. State, 653 S.W.2d 1 (Tex.Cr.App.1982); and the dissenting opinion in Hill v. State, 640 S.W.2d 879 (Tex.Cr.App. 1982) is recommended.


author: NYE, Chief Justice.

text:
    Michael J. BRANECKY, Appellant, v. Roger J. SEAMAN, Jr., Appellee.
    No. 13-84-238-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.
    Rehearing Denied Jan. 24, 1985.

      J. Stephen Weakley, Maebius & Duncan, Inc., San Antonio, for appellant.
    Ernest L. Duncan, Jr., Barnhart, Mallia, Cochran & Luther, Corpus Christi, for ap-pellee.
    Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal by Michael Branecky, an architect, urging that the trial court erred in granting summary judgment in favor of Roger Seaman, a landowner, that the appellant was not entitled to a statutory or constitutional lien.

The facts, as set out in the summary judgment proof, are as follows: Appellant contends that he entered into a contract with National Motel, Inc., and Sterling Bennett in January 1983 for architectural services to be performed by the appellant with regard to a proposed motel project. Appellant architect alleges that he prepared the plans and specifications for the project. After he completed the plans, he met with appellee and others in Corpus Christi to discuss their approval. Appellant claims that he, Bennett and appellee’s son-in-law applied for a building permit that day, using a copy of his plans. Appellant asserts in his affidavit that appellee was in partnership with Sterling Bennett and others but later backed out of the deal with Bennett. He claims that appellee nevertheless wanted to pursue the plans with appellant.

Later, the appellant was informed that appellee could get the plans prepared elsewhere for less money. He contends that he later learned that his plans had been traced or copied by another party and an engineer’s seal was placed on the plans. Appellant believed that the existence of these other plans was notification that Bennett and the others did not intend to honor his contract. So, as a result, he filed an affidavit for mechanic’s and materialman’s lien against appellee’s property. Appellee then filed a petition seeking to remove the lien. Appellant answered, pleading alternative claims for breach of contract and quantum meruit, in addition to his claims for a statutory and constitutional lien. The trial court granted summary judgment, declaring the purported lien filed by appellant to be void. The court further ruled that appellant should take nothing on his counterclaim to establish a constitutional lien. Appellant’s counterclaims for breach of contract and quantum meruit were severed.

Appellee’s affidavit states that he was not a party to the contract between National Motel, Inc., and appellee. He claims that he was never a partner with National Motel, Inc., or Sterling Bennett. He states that the land upon which appellant filed a lien belonged to him and that it is vacant. Appellee also included, as summary judgment evidence, the affidavit of R..C. Allen. Allen stated that he was familiar with the property which is the subject of the lien and that no improvements have been constructed or commenced on the land at any time during the period of one year prior to the date of the affidavit.

Appellant asserts as his sole point of error that the trial court erred in granting summary judgment against him on his con-

stitutional and statutory lien claims. He argues that an architect who prepares plans and specifications for a building is entitled to a lien on the owner’s property even though the project is never constructed. TEX.REV.CIV.STAT.ANN. art. 5452 provided in part:

1. Any person or firm, lumber dealer or corporation, artisan, laborer, mechanic or sub-contractor who may labor, specially fabricate material, or furnish labor or material: (a) for the construction or repair of any house, building or improvement whatever; (b) for the construction or repair of levees or embankments to be erected for the reclamation of overflow lands along any river or creek; (c) or for the construction or repair of any railroad: within this state under or by virtue of a contract with the owner, owners, or his or their agent, trustee, receiver, contractor, contractors, or with any subcontractor; upon complying with the provisions of this Chapter shall have a lien on such house, building, fixtures, improvements, land reclaimed from overflow, or railroad and all of its properties, and shall have a lien on the lot or lots of land necessarily connected therewith, or reclaimed thereby, to secure payment: (a) for the labor done or material furnished or both for such construction or repair; (b) for specially fabricated material even though such material has not been delivered or incorporated into such construction or repair, less its fair salvage value.

The use of the language “any person or firm” has been considered evidence of the intention of the legislature to provide a lien for any person who labors to erect a structure or improvements. Sanguinett & Staats v. Colorado Salt Co., 150 S.W. 490 (Tex.Civ.App. — Ft. Worth 1912, writ ref’d). Architects who prepare plans and supervise construction of improvements furnish labor within the meaning of the statute and may acquire a statutory lien. Sanguinett & Staats v. Colorado Salt Co., 150 S.W.2d at 491 (emphasis ours). Performing supervisory functions, in addition to drawing plans and specifications, may be an indispensable condition to an architect establishing a lien. Lancaster v. McKenzie, 439 S.W.2d 728 (Tex.Civ.App. —El Paso 1965, no writ).

The statute defines labor as that which is rendered in the direct prosecution of the work. TEX.REV.CIV.STAT.ANN. art. 5452(2)(a). The word “work” as defined is to be construed to mean any construction or repair, or any part thereof, which is performed pursuant to the original contract.

In the case at bar, there is no dispute that the plans and specifications which were drawn by appellant were never utilized in the construction or improvement of any structure on appellee’s land. Appellee established, as a matter of law, through his affidavit and the affidavit of R.C. Allen, that the subject land was vacant and that no construction or improvements had commenced, and, therefore, appellant’s claim did not come under the lien statute. The affidavits were clear, positive, direct, free from inconsistencies and could have been readily controverted by appellant, but were not. TEX.R.CIV.P. 166-A.

Appellant argues that he was ready to perform his supervisory obligation under the contract, but was unable to through no fault of his own. Regardless of appellant’s intention, appellant did not, in fact, superintend construction but merely prepared plans and specifications, and those plans and specifications were never utilized for the construction or repair of any building or structure on appellee’s land. We construe the statutory definitions of labor and work to require more than the preparation of preliminary plans and drawings for a project which is never commenced in order to establish a lien. The preparation of plans and specifications is often necessary as a preliminary step in assisting an owner in the decision whether or not to erect a structure or improvement. However, the trial court was correct in granting summary judgment. Until the work of construction or improvement has commenced, there is no “property” upon which the lien can attach.

Appellant also argues under his point of error that he is entitled to the protection of a constitutional lien under TEX.CONST. Art. XVI, § 37. This section states:

Mechanics, artisans and material men, of every class, shall have a lien upon the buildings and articles made or repaired by them for the value of their labor done thereon, or material furnished therefor; and the Legislature shall provide by law for the speedy and efficient enforcement of said liens.

Appellant cites us no case authority in his brief for his contention that he is entitled to a constitutional lien, nor do we find any. He claims only that he was in direct contractual privity with the owner of the realty pursuant to his written contract with National Motel Corp., and Sterling Bennett. We find, at best, the issue of whether appellant was in contractual privity with appellee to be a question of fact. However, we hold that the labor expended by appellant in preparing architectural plans and specifications was not labor expended in making or repairing a building and is not a proper subject for a statutory or constitutional lien.

The judgment of the trial court is AFFIRMED.

      . Repealed by Acts 1983, 68th Leg. p. 3729, ch. 576 § 6, eff. January 1, 1984 and codified as TEX.PROP.CODE ANN. § 53.021 (Vernon 1984).

      . Repealed by Acts 1983, 68th Leg., p. 3729, ch. 576, § 6 eff. January 1, 1984 and codified as TEX.PROP.CODE ANN. § 53.001 (Vernon 1984).


author: KENNEDY, Justice.

text:
    Lawrence Leroy BARKER, Appellant, v. Frances Catherine Abies BARKER, Appellee.
    No. 13-84-246-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 28, 1984.
    Rehearing Denied Jan. 16, 1985.
    Barbara H. Fritz, Victoria, for appellant.
    Robert P. Houston, Victoria, for appellee.
    Before KENNEDY, UTTER and KEITH, JJ.
   OPINION

KENNEDY, Justice.

This is the second appeal from a divorce decree dividing the community property of the parties. Suit was brought by appellee (former wife) against appellant (former husband) for a divorce and division of the property. There were no children of the marriage. We affirm.

In the original cause, following a trial, property issues were submitted to a jury which found that wife should be awarded sixty percent of the community property. Judgment was entered awarding wife sixty percent of the community property and requiring that she pay sixty percent of the community debt, including indebtedness on husband’s separate property. Husband was awarded forty percent of the community property, was required to pay forty percent of the community debt and was awarded his separate real property.

The jury found that husband’s separate real property had been enhanced in the amount of $25,000. No amount was awarded wife for reimbursement to the community for the improvements to husband’s separate property. This judgment was appealed to this Court under Cause No. 13-82-269-CV. Opinion ordered not published. Tex.R.Civ.P. 452. This Court reversed the judgment of the trial court and remanded “for a re-determination of the division of the parties’ community property with due consideration for the [wife’s] entitlement to reimbursement of the enhancement value of [husband’s] separate property attributable to the improvements made thereon with community funds.”

Upon remand, the trial court changed its judgment in the following respects:

(1) Wife was awarded $18,745.00 in cash instead of $13,945.00 in cash,
(2) Wife was made liable for 60% of all debts except those secured by husband’s separate realty;
(3) Husband was made liable for 40% of the indebtedness except that he was made solely liable for the $17,000.00 debt secured by his separate property.

In all other respects, the judgment remained the same. Husband asserts and wife agrees that the additional award made to wife amounts to “sixty percent of the enhancement found by the jury less sixty percent of the community debt incurred for improvements to the separate estate.”

Husband, by his first point of error, complains that the trial court erred in refusing to grant a new trial before a new jury. When reversing the judgment of the court below, the appellate court is authorized to render the judgment which should have been rendered. TEX.R.CIV.P. 434. However, when the matter to be decreed is uncertain, the cause should be remanded to the trial court. TEX.R.CIV.P. 434. Also, “if it appears to the court that the error affects a part only of the matter in controversy and that part is clearly separable without unfairness to the parties, the judgment shall only be reversed and a new trial ordered as to that part affected by such error,...” TEX.R.CIV.P. 434. Where the remand is accompanied by instructions restricting the retrial to particular issues, the parties must keep within those issues. Liberty Leasing Co., Inc. v. Still, 582 S.W.2d 255 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ).

This cause was remanded by this Court with instructions to consider wife’s entitlement to reimbursement for the enhancement of husband’s separate property. Evidence had been received by the court and an issue had been submitted to and answered by the jury. We find a second jury trial unnecessary because:

(1) The only error found in our prior consideration of this cause was an error of law by the trial court, which occurred in the rendition of the judgment after the jury entered its verdict.
(2) The jury’s answers to special issues about dividing the marital estate are advisory only, and a trial court may, in its discretion, disregard the jury findings.

See Hopkins v. Hopkins, 540 S.W.2d 783 (Tex.Civ.App. — Corpus Christi 1976, no writ). Husband’s first point of error is overruled.

Husband’s second point of error is that the trial court erred in failing to consider the benefits conferred by the separate estate upon the community estate.

This point of error is predicated upon the evidence presented at the hearing on the Motion for New Trial. The transcription of this hearing is not on file with this court. It is appellant’s duty to bring forward a complete statement of facts showing the error of which he complains. Tidelands Life Insurance Co. v. Harris, 675 S.W.2d 224 (Tex.App. — Corpus Christi 1984, writ ref’d n.r.e.); Husband’s second point of error is overruled.

The judgment of the trial court is AFFIRMED.

      . Since appellant (former husband) was the ap-pellee in the first appeal, and vice versa, to avoid confusion, the parties will be referred to throughout the opinion as "husband” and "wife”.


author: DIES, Chief Justice.

text:
    Bobby Joe SACKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 09 84 088 CR.
    Court of Appeals of Texas, Beaumont.
    Jan. 9, 1985.
    Clay Dugas, Orange, for appellant.
    David Bosserman, Asst. Co. Atty., Orange, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury of negligent homicide. The court assessed punishment of one year in the county jail and a fine of $1,000.00. Appeal was perfected to this Court on one ground of error, viz:

“The trial court erred in failing to grant appellant [sic] request to quash the information and require the State to allege in what respect failure to drive on the right side of the roadway was negligent.”

The information in this case charged that appellant:

“did then and there cause the death of an individual ... by criminal negligence, to wit: by then and there while driving and operating a motor vehicle on a public highway failed to maintain a proper lane of travel on said highway, to wit: failed to drive upon the right half of the roadway and thereby the said [appellant] caused the vehicle he was driving and operating to collide with a motor vehicle occupied by the said Dorothy Oneal Mercer. ...”

Appellant has furnished us with an able brief. Apparently there are no cases construing his challenge of the information under the statute of criminal negligent homicide as it now provides. Appellant cites us Thomas v. State, 621 S.W.2d 158 (Tex.Crim.App.1980); Cruise v. State, 587 S.W.2d 403 (Tex.Crim.App.1979); Wells v. State, 170 Tex.Crim. 428, 341 S.W.2d 912 (Tex.Crim.App.1961); TEX.CODE CRIM. PROC.ANN. art. 21.15 (Vernon Pamph. Supp.1984); and TEX.REV.CIV.STAT. ANN. art. 6701d, sec. 52 (Vernon 1977).

The last cited statute (Art. 6701d, sec. 52) provides four exceptions under which a vehicle need not be driven on the right half of the roadway. Briefly, these exceptions are as follows:

1. When passing a vehicle moving in the same direction;
2. When an obstruction exists;
3. When driving on a roadway with three marked lanes;
4. When proceeding down a one-way road.

TEX.CODE CRIM.PROC.ANN. art. 21.- • 15 (Vernon Pamph.Supp.1984) provides:

“Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”

Appellant argues that since exceptions exist where failing to drive upon the right half of the roadway is legal, then the act or acts relied on by the State are not alleged with reasonable certainty.

In Wells v. State, supra, cited by appellant, the indictment (for negligent homicide) alleged that the appellant,

“while engaged in the performance of an unlawful act ‘to wit driving and operating a motor vehicle ... across a double stripe and highway marker’, did by negligence and carelessness cause the death of the deceased by then and there colliding with a bicycle which the deceased was riding.”

The Court concluded 341 S.W.2d at 913:

“The driving of an automobile across a double stripe and highway marker may or may not be an unlawful act. The legality of the act would be made to depend upon the facts and circumstances existing at the time. There is no statute in this State making such an act, per se, a penal offense.”

However, the Wells court was operating under TEX. PENAL CODE art. 1239 (1925) (repealed 1973) as it provided in 1961:

“Negligent homicide of the second degree can only be committed when the person guilty thereof is in the act of committing or attempting the commission of an unlawful act.”

The TEX. PENAL CODE ANN. sec. 19.-07(a) (Vernon 1974) now provides:

“A person commits an offense if he causes the death of an individual by criminal negligence.”

TEX. PENAL CODE ANN. sec. 6.03(d) (Vernon 1974) states in pertinent part:

“A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. ...”

Thomas v. State, supra at 161, relied upon by appellant, holds:

“The general rule is that a motion to quash will be allowed if the facts sought are essential to giving notice. However, unless a fact is essential, the indictment need not plead evidence relied on by the State. Smith v. State, 502 S.W.2d 133 (Tex.Cr.App.1973); Cameron v. State, 401 S.W.2d 809 (Tex.Cr.App.1966)....”

Thomas v. State, supra, at 161, also cites Phillips v. State, 597 S.W.2d 929 (Tex. Crim.App.1980), where a defendant filed a motion to quash attacking the allegations charging “ ‘intent to violate and abuse * * sexually.’ ” The Thomas court, addressing Phillips, reasoned:

“Although sexual abuse encompasses different acts, it was wisely held that no error occurred because ‘the information requested was essentially evidentiary, rather than being required for purposes of notice and plea in bar.’ ”

And, in Cruise v. State, supra, at 404, also relied upon by appellant, a defendant was convicted by a jury of the offense of robbery by causing bodily injury [TEX. PENAL CODE ANN. sec. 29.02(a)(1) (Vernon 1974)]. The indictment charged the defendant “did then and there knowingly and intentionally cause bodily injury to the ... complainant.” Defendant filed a motion to quash for failure of the State to allege the manner in which the bodily injury was caused. The Court agreed that the defendant was entitled to this information, and reversed the conviction.

So, the question we must determine is whether the information sought by the appellant in the case at bar is essential for notice or is merely evidentiary. See Barnhart v. State, 648 S.W.2d 696, (Tex.Crim. App.1983).

The somewhat recent case of Arredondo v. State, 582 S.W.2d 457, 458 (Tex.Crim. App.1979), we believe, is important in our decision of the case at bar. There the indictment charged defendant:

“ ‘recklessly cause[d] the death of an individual, Robet Valdez, by grabbing the steering wheel of a motor vehicle and pulling said steering wheel to the right while the said [defendant] was a passenger in the right front seat of said motor vehicle, thereby recklessly causing said motor vehicle to veer to the right and strike the said Robert Valdez, thereby fatally injuring the said Robert Valdez, who was standing in the roadway

The Arredondo Court, in construing TEX. CODE CRIM.PROC.ANN. art. 21.15 (Vernon Pamph.Supp.1984), as we must do in this opinion, held, at 459:

“We hold that the indictment alleges with reasonable certainty the act relied upon to constitute recklessness.... ”

And, see, Townsley v. State, 538 S.W.2d 411 (Tex.Crim.App.1976), where the Court upheld an indictment alleging defendant

“ ‘did then and there recklessly cause the death of ... by driving a motor vehicle at an excessive rate of speed while attempting to elude a police officer and recklessly causing said vehicle to run off the roadway and roll over....”

We have concluded that under the Penal Code, as it now exists, the information in the case at bar gives appellant sufficient notice and, thus, overrule his ground of error.

The judgment of the trial court is affirmed.


text:
    Leonce J. NORRIS, Appellant, v. TEXAS EMPLOYMENT COMMISSION and Texaco, Inc., Appellees.
    No. B14-84-487-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.
    Rehearing Denied Feb. 7, 1985.
    See also, Tex.App., 634 S.W.2d 85.

      M. Diane Dwight, Provost, Umphrey, McPherson & Swearingen, Port Arthur, for appellant.
    James Hambright and Robert J. Ham-bright, Orgain, Bell & Tucker, Beaumont, James D. Garrison, Houston, Susan F. Eley, Asst. Atty. Gen., Austin, for appel-lees.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

PER CURIAM.

Appellant contests the decisions of the Texas Employment Commission (TEC) and the trial court that he was not qualified to receive unemployment benefits. We affirm.

Appellant was employed at Texaco’s main plant in Port Arthur. Texaco and the Oil, Chemical and Atomic Workers (OCAW) operated under a bargaining agreement which expired at midnight on January 7, 1982. The OCAW sought approximately sixteen modifications of the agreement. Two months of prior negotiations had proved fruitless. Late in the day on January 7, the OCAW offered a forty-eight hour extension of the agreement. Texaco refused, indicating that the parties were so far apart on the issues that it would not help. Consequently, the OCAW went on strike at midnight, and pickets were set up at that time.

When appellant drove to work the next morning, he saw the pickets and returned home. During the seven month strike, he made no attempt to return to work or any inquiry about doing so. While appellant was aware that other Texaco employees had crossed the picket lines and worked, he refused.

On January 11, appellant applied for unemployment compensation benefits. After a full hearing, the TEC ruled that appellant stopped work because of a labor dispute, and was, therefore, disqualified from receiving unemployment benefits. See TEX. REV.CIV.STAT.ANN. art. 5221b-3(d) (Vernon Supp.1983). Appellant contested the TEC ruling in district court. The trial court granted appellant’s request for a temporary injunction and ordered the TEC to pay benefits. Both the TEC and Texaco appealed. The Beaumont Court of Appeals vacated the temporary injunction, 636 S.W.2d 248, and appellant proceeded to trial on the merits in district court. At the trial, the court held that there was substantial evidence to support the TEC’s decision. Norris now appeals.

In his first point of error, appellant contends that the trial court erred in its application of the substantial evidence rule and failed to properly recognize the case as one of statutory construction. The standard for a court review of a decision of the TEC is based upon substantial evidence. Texas Employment Commission v. Holberg, 440 S.W.2d 38, 42 (Tex.1969); Mollinedo v. Texas Employment Commission, 662 S.W.2d 732 (Tex.App. — Houston [1st Dist.] 1983, writ ref’d n.r.e.). The trial should determine only whether the agency’s rule is free from a taint of illegality and is reasonably supported by substantial evidence. Firemen’s and Policemen’s Civil Service Commission v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984), quoting Fire Department of the City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666 (1949). The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness. Brinkmeyer, 662 S.W.2d at 956. The party appealing from the administrative order has the burden of demonstrating that the order is not supported by substantial evidence. Id. at 956. In a case where the facts are stipulated and undisputed and only questions of law exist, the standard of review is still substantial evidence. Nelson v. Texas Employment Commission, 290 S.W.2d 708, 710 (Tex.Civ. App. — Galveston 1956, writ ref’d). The trial court correctly applied the substantial evidence rule. Appellant’s first point of error is overruled.

Appellant then argues that even this standard was not met. The function of the appellate court is not to decide whether the TEC’s order was right, but rather whether the evidence was such that a reasonable mind could not have reached the same conclusion. Texas Employment Commission v. Riddick, 485 S.W.2d 849, 852 (Tex.Civ.App. — Texarkana 1972, no writ).

Here the following provision must be interpreted:

An individual shall be disqualified for benefits:
(d) For any benefit period with respect to which the Commission finds that his total or partial unemployment is (i) due to a claimant’s stoppage of work because of a labor dispute....

TEX.REV.CIV.STAT.ANN. art. 5221b-3(d) (Vernon Supp.1983). Appellant argues that the cause of the stoppage of work was Texaco’s refusal of the extension offer and that Texaco’s refusal to extend the contract amounted to a employer’s work stoppage.

Striking employees have not been disqualified from receiving unemployment in three particular situations. A “lockout” occurs when an employer prevents employees from working until a new contract is agreed upon. Brown v. Texas Employment Commission, 540 S.W.2d 758 (Tex. Civ.App. — Waco 1976, writ ref'd n.r.e.). In Brown, because the employees and the union were ready and willing to work, with or without a contract, the employer was the cause of the unemployment and the claimants received benefits. Brown, 540 S.W.2d at 760. Where a company laid off employees prior to a strike, benefits have been allowed. R.C.W., Inc. v. Texas Employment Commission, 619 S.W.2d 35 (Tex. Civ.App. — Eastland 1981, no writ); Texas Employment Commission v. E-Systems, Inc., 540 S.W.2d 761 (Tex.Civ.App. — Waco 1976, writ ref’d n.r.e.). A labor dispute is not alone sufficient to disqualify the employees from receiving their unemployment benefits. The employee’s willingness to work and the employer's reaction thereto is relevant. See R.C.W., 619 S.W.2d at 37. Also, no claimant’s stoppage of work exists when the employee attempts to cross a picket line and resume work only to find that he has been permanently replaced. Kraft v. Texas Employment Commission, 418 S.W.2d 482 (Tex.1967); Texas Employment Commission v. Hodson, 346 S.W.2d 665 (Tex.Civ.App. — Waco 1961, writ ref’d n.r.e.). In such cases, the cause of unemployment was not the claimant’s decision not to work, and he was eligible to receive unemployment compensation.

In Texas Employment Commission v. Riddick, Riddick and others went out on strike. Riddick walked the picket line and refused to cross it to find out if jobs were available. Riddick knew that several people had crossed the picket line and obtained jobs, and, in fact, did not know of anyone who did not if he tried. His manager testified that Riddick would have gotten his old job had he applied for it. Thus, the court held that reasonable minds could have decided that this was a stoppage of work by the claimant. Texas Employment Commission v. Riddick, 485 S.W.2d 849 (Tex. Civ.App. — Texarkana 1972, no writ).

These cases emphasize two key factors: the cause of the stoppage of work and the actions of each party after the strike begins. Here, although Texaco refused to extend the contract, testimony indicates that they were willing to allow the employees to continue working. The employees were not prevented from returning to work. All employees who crossed the picket lines were given work. Appellant made no effort to return to work. The agency’s decision is reasonably supported by substantial evidence. Appellant’s third, fourth, fifth, and eighth points of error are overruled.

Appellant contends that reasonable minds could not have concluded that work was available to him under the same terms and conditions, and that he, therefore, had “good cause” not to return to work. The court’s finding that work was available under similar conditions is reasonably supported by substantial evidence.

Appellant argues that since work was not available under the same conditions, any job would amount to “new work” under TEX.REV.CIV.STAT.ANN. art. 5221b-3 (Vernon Supp.1983). The “new work” classification applies only when the employer — employee relationship has been severed. Texas Employment Commission v. E-Systems, Inc., 540 S.W.2d 761, 763 (Tex.Civ.App. — Waco 1976, writ ref’d n.r.e.). Appellant remained an employee of Texaco throughout the dispute, and, therefore, any work at Texaco could not be considered “new.” Appellant’s seventh point of error is overruled.

In his sixth point of error, appellant argues that the trial court erred in holding that he was required to make an unconditional offer to return to work. The benefit disqualification for a claimant’s stoppage of work will not apply if the claimant himself did not participate in any way in the labor dispute or was not a member of a group participating in that dispute. TEX.REV.CIV.STAT.ANN. art. 5221b-3(d) (Vernon Supp.1983). “Participation” is defined as a failure to cross a picket line or a refusal to accept his customary work. If the claimant himself does not participate, but his union does, the claimant can escape the disqualification if he shows, among other things, that he has made an unconditional offer to return to work. Since appellant’s union directly participated in this strike, a finding that he had made such an offer was necessary for him to avoid disqualification. Appellant’s sixth point of error is overruled.

In point of error two, appellant contends that both the trial court’s and the TEC’s decisions are unreasonable, arbitrary and violative of the terms of the statute, its legislative purpose, and public policy. Pri- or to 1955, a claimant was disqualified for benefits for any unemployment due to a labor dispute. In 1955, the statute was amended to disqualify a claimant only upon his stoppage of work. Appellant suggests that this amendment establishes the “ameliorative intent” of the legislature. He argues that the addition of the word “claimant” indicated that fault and responsibility for the stoppage of work were to be the determinative factors. Thus, he argues, since Texaco refused to extend the contract, the disqualification should not apply-

Although disqualification from benefits is not to apply when the employer prevents its employees from working during a labor dispute, the emphasis in the cases establishing this principle, and in the statute itself, is placed upon who actually stopped the work. Unemployment benefits are to subsidize a claimant when he is unemployed through no fault of his own. See Reliable Life Insurance Company v. Washington, 570 S.W.2d 24 (Tex.Civ.App. —El Paso 1978), rev’d on other grounds, 581 S.W.2d 153 (Tex.1979). Here appellant made no attempt to return to his job. Resort to legislative intent is unnecessary as Texas law has decided this matter. Appellant’s second point of error is overruled.

There was sufficient evidence to support the trial court’s determination that this was a claimant’s stoppage of work. The judgment is affirmed.

ELLIS, J., dissents.


author: BROOKSHIRE, Justice.

text:
    David Allen LEGER, Appellant, v. The STATE of Texas, Appellee.
    No. 09 84 069 CR.
    Court of Appeals of Texas, Beaumont.
    Jan. 17, 1985.
    Rehearing Denied Feb. 8, 1985.
    Nolan J. LeBlanc, Orange, for appellant.
    James Jenkins, County Attorney’s Office, Orange, for appellee.
   OPINION

BROOKSHIRE, Justice.

Appellant was convicted by a jury of the offense of aggravated sexual assault. After a plea of “true” to an enhancement paragraph, the jury assessed punishment at forty years confinement in the Texas

Department of Corrections. Appeal has been perfected to this court.

Appellant’s first ground of error is: “The trial court erred in convicting the Appellant and sentencing him to the Texas Department of Corrections because it submitted a charge of conspiracy to the jury when conspiracy was not alleged in the indictment.”

Appellant argues that the indictment is devoid of any mention of a conspiracy; however, the charge, conversely states in part:

“[A]nd in furtherance of a conspiracy between David Allen Leger and Billy Hoffpauir or John = Hoffpauir, or all three, consisting of an agreement that one or more of them would commit Sexual Assault of [Complainant], and that such offense of Aggravated Sexual Assault, if any, was one which the Defendant, David Allen Leger, should have anticipated as a result of the carrying out of such conspiracy to commit Sexual Assault....” (Emphasis added)

TEX.PENAL CODE ANN. secs. 7.01, 7.02 (Vernon 1974) eliminate the distinction between principals and accomplices and all attendant complexities in the drafting of indictments. We believe that Blansett v. State, 556 S.W.2d 322 (Tex.Crim.App.1977) confirms the abolition of the distinction between principals, accomplices and conspirators.

Sec. 7.01(c) states:

“All traditional distinctions between accomplices and principals are abolished ... and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice.” (Emphasis added)

Additionally, Sec. 7.02(b) provides:

“If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.” (Emphasis added)

We find the reasoning of Blansett v. State, supra, is controlling of Appellant’s first ground of error. There, the defendant urged on appeal that the trial court erred in charging the jury on the theory of criminal responsibility as defined in Sec. 7.02(b). The facts showed that the defendant was found guilty of capital murder where the victim, a police officer, was actually shot by another police officer acting in self-defense during the commission of a felony. There was no evidence that the defendant, Blansett, fired his shotgun during the gun battle although there was evidence that Blansett’s cofelon fired his own gun. The court’s charge to the jury included a charge on the theory of conspiracy existing between the defendant and cofelon to commit the felony. In a footnote, the court quotes directly from the trial court’s charge, 556 S.W.2d at 326:

“5. ‘Now, therefore, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of June, 1974, in the County of Orange and State of Texas, as alleged in the indictment, that the defendant, Clifford S. Blansett, had entered into and was attempting to carry out a conspiracy with [cofelon] to commit the offense of implements for escape ... and you further find that such murder was committed, if it was, in furtherance of the original unlawful purpose of the defendant, Clifford S. Blansett and [cofelon], to commit the offense of implements for escape and was such an offense as should have been anticipated as a result of carrying out the conspiracy to commit the offense of implements for escape, then you will find the defendant, Clifford S. Blan-sett, guilty of capital murder....
‘You are further instructed that if you find the foregoing facts beyond a reasonable doubt from the evidence that the offense of murder was actually committed by the separate act of either Clifford S. Blansett or [cofelon] acting on their own separate volition and ... not in furtherance of the original purpose of the defendant, Blansett and [cofelon] and was not such an offense as should have been anticipated as a result of the carrying out of the conspiracy, then you will acquit the defendant and ... proceed to consider ... the lesser included offense of murder. ...”’ (Emphasis added)

Searching the opinion, we find no affirmative allegation of a classical conspiracy made in the indictment. We quote from the indictment in Blansett v. State, supra, footnote 3, at 325:

“ ‘[Cofelon] and CLIFFORD S. BLAN-SETT, acting together did then and there unlawfully, intentionally, and knowingly kill Danny L. Gray by shooting him with a gun, the said Danny L. Gray being then and there a peace officer who was then and there acting in the lawful discharge of an official duty and the said [cofelon] and Clifford S. Blansett, acting together, then and there knowing, and being informed that the said Danny L. Gray was then and there a police officer.’ ” (Emphasis added)

Despite the unusual circumstances, the court affirmed the conviction of capital murder and wrote, in Blansett v. State, supra, at 326:

“The evidence would support a conviction either on the theory of appellant’s guilt because of his own acts or of appellant’s guilt because of his responsibility for the acts of [cofelon]. However, the charge which was submitted to the jury, when considered as a whole, submitted only on the theory of appellant’s guilt because of his responsibility for the acts of [cofelon].” (Footnote omitted)

Reading Secs. 7.01, 7.02 and Blansett v. . State, supra, together, we find that the trial court properly incorporated the law of conspiracy in its charge to the jury. We find no harmful or reversible error. Appellant’s first ground of error is overruled.

Appellant’s second and third grounds of error complain that the trial court erred in submitting “a charge of conspiracy” and “an issue of party” to the jury because there was insufficient evidence to support either one.

Appellant’s only trial objection to the conspiracy charge was as follows:

“Defendant would also object to any paragraph or paragraphs in the Charge alleging a conspiracy in the present case as there was no conspiracy alleged in the indictment. In this regard, the Charge does not follow the indictment and allows for conviction on a theory of law which has not been alleged in the indictment.”

Appellant made no timely objection concerning the insufficiency of the evidence as to the charge of conspiracy or the issue of law of parties. Since there was no timely objection, thereby calling this error to the court’s attention as required by TEX. CODE CRIM.PROC.ANN. art. 36.14 (Vernon Supp.1984), we find there is nothing presented for appellate review. Carrillo v. State, 566 S.W.2d 902 (Tex.Crim.App.1978). See also Romo v. State, 568 S.W.2d 298 (Tex.Crim.App.1977); Savant v. State, 544 S.W.2d 408 (Tex.Crim.App.1976); Mott v. State, 543 S.W.2d 623 (Tex.Crim.App.1976). Appellant’s second and third grounds of error are overruled.

Appellant’s fourth ground of error is without merit and is overruled. TEX.PENAL CODE ANN. secs. 7.01, 7.02 (Vernon 1974).

Appellant, in his fifth ground of error, argues:

“The Trial Court erred when it refused to include the Appellant[’]s requested charge of mistake of fact when the Court submitted its charge to the jury.”

Appellant’s testimony, and the testimony of others, was that the victim consented to the various sexual acts. However, this was denied by the victim. The court’s charge required the jury to find that these assaultive acts of sexual conduct were without the victim’s consent. Hence, under this record, an affirmative submission of the issue of mistake of fact was not required and, indeed, would not have been proper. See Martinez v. State, 634 S.W.2d 929 (Tex.App. — San Antonio 1982, pet. ref’d). See also Green v. State, 666 S.W.2d 578 (Tex.Crim.App.1978); Bearden v. State, 487 S.W.2d 739 (Tex.Crim.App. 1972). Appellant’s fifth ground of error is overruled.

In Appellant’s final ground of error he urges:

“The Trial Court erred in communicating with the jury during deliberation in the absence of the Defendant and without first satisfying the requirements of article 36.27 of the Texas Code of Criminal Procedure.”

The record shows that the judge received a communication from the jury foreman worded:

“Your honor:
“We cannot all agree on a verdict.
“May we have more evidence — or can we hear more evidence?”

Without first securing the presence of Appellant and his counsel, and without first securing a waiver by Appellant, as governed by TEX CODE CRIM.PROC.ANN. art. 36.27 (Vernon 1981), the judge answered that communication:

“To the jury:
“You have received all the evidence you will receive on the guilt or innocence phase. You are to be governed by the Charge. Please continue your deliberations.”

Appellant’s counsel timely filed his objection to the judge’s communication.

We find no showing that reasonable diligence was not used by the court to secure the presence of Appellant and his counsel. Appellant takes the position that he could have been easily found. Although the communication was not in compliance with Art. 36.27, we find this does not constitute reversible error since the communication did not contain an additional instruction upon the law or some phase of the case. Nacol v. State, 590 S.W.2d 481 (Tex.Crim.App. 1979); Arrevalo v. State, 489 S.W.2d 569 (Tex.Crim.App.1973). See also Rodriguez v. State, 625 S.W.2d 101 (Tex.App. — San Antonio 1981, pet. ref’d). We overrule Appellant’s sixth ground of error.

Finding no reversible error, we affirm the judgment and sentence below.

AFFIRMED.

BURGESS, J., not participating.


author: BURGESS, Justice.

text:
    Daniel John SORG, Appellant, v. The STATE of Texas, Appellee.
    No. 09-84-151 CR.
    Court of Appeals of Texas, Beaumont.
    Jan. 23, 1985.

      Rodney Conerly, Port Arthur, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

BURGESS, Justice.

Appellant was tried by information for the offense of driving while intoxicated, a second offense. He was found guilty by a jury and the jury assessed punishment at two years in the county jail and imposed a fine of $2000.00. Appeal has been perfected to this court.

Appellant does not challenge the sufficiency of the evidence, but raises two complaints about the information. His ground of error number one states:

“The information failed to allege an offense.”

The information alleges in part that appellant did “on or about May 23, 1984” ... while under the influence of intoxicating liquor, drive and operate a motor vehicle in a public place....

Tex.Rev.Civ.Stat.Ann. art. 67011-1 sec. (b) (Vernon Supp.1984) as amended and effective January 1, 1984 states in part: “A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place.” “Intoxicated” is defined in Art. 67011-1 sec. (a)(2) as “(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or (B) having an alcohol concentration of 0.10 percent or more.”

The statute, prior to its amendment, stated in relevant part: “Any person who drives or operates an automobile ... while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty_” Tex.Rev.Civ.Stat.Ann. art. 67011-1 (Vernon 1977) (amended 1984).

Neither “intoxicated” nor “under the influence of intoxicating liquor” was defined in the prior statute. These terms were held to be synonomous in Williams v. State, 165 Tex.Crim. 202, 805 S.W.2d 369 (1957). It was also held that it was not necessary to define these terms since they were not technical but had a commonly understood meaning. Eddins v. State, 155 Tex.Crim. 202, 232 S.W.2d 676 (1950).

Although a definition was not necessary, one had been approved which defined both terms as when “a person has taken into his stomach a sufficient quantity of intoxicating liquor so as to deprive him of the normal control of his bodily or mental faculties.” Lockhart v. State, 108 Tex.Crim. 597, 1 S.W.2d 894, 895 (1927). See also Waites v. State, 401 S.W.2d 243 (Tex.Crim. App.1966) and Moynahan v. State, 140 Tex.Crim. 540, 146 S.W.2d 376 (1941).

The wording of an information need not strictly adhere to those of the statute. It is sufficient to use other words conveying the same meaning or which include the sense of the statutory words. See Tex. Code Crim.Proc.Ann. arts. 21.17, 21.23 (Vernon 1966).

Although the present statute deletes the phrase “or under the influence of intoxicating liquors”, that phrase is essentially codified in the definition of “intoxicated”. The definition of “intoxicated” in the present statute simply enlarges the previous non-statutory definition. The information in this case does not use the word “intoxicated” or the exact statutory definition of “intoxicated”, none the less, it in-compasses the statutory definition in the phrase “while under the influence of intoxicating liquor.” Only when a charging instrument charges no offense at all will it be fundamentally defective. Dennis v. State, 647 S.W.2d 275 (Tex.Crim.App.1983). Appellant’s ground of error number one is overruled.

Appellant’s second ground of error states:

“The information fails to meet the requirement of culpability of article 6.02 of the Texas Penal Code.”

Ex Parte Ross, 522 S.W.2d 214 (Tex.Crim.App.1975), specifically addressing this same question, held that no proof of a culpable mental state was required in driving while intoxicated prosecutions. The amended article still consists of only two elements: (1) intoxication and (2) driving or operating a motor vehicle in a public place. Art. 67011-1. Ground of error number two is overruled. The judgment of the trial court is affirmed.

AFFIRMED.


author: SEERDEN, Justice.

text:
    Leo Martinez RAMOS, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-140-CR.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 24, 1985.
    John H. Flinn, Sinton, for appellant.
    Thomas L. Bridges, Dist. Atty., Sinton, for appellee.

      Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

SEERDEN, Justice.

Appellant was convicted of voluntary manslaughter following a jury trial on his plea of not guilty to charges of murder and carrying a weapon on licensed premises. The jury assessed his punishment at fifteen years and one day in the Texas Department of Corrections.

Appellant’s first ground of error is that the trial court erred by overruling appellant’s motion for instructed verdict because the indictment charged the killing of Hilario Cervantes and the proof showed the killing of Hilario Roquis. Article 21.07 of the Texas Code of Criminal Procedure (Vernon 1966) provides that “when a person is known by two or more names, it shall be sufficient to state either name.” In Smith v. State, 446 S.W.2d 883 (Tex.Crim.App. 1969), the deceased was listed in the indictment as Roberta Thornton and the proof showed that she was also known by the surname Jackson. The court held that “when the deceased in a murder prosecution has gone by two names and the indictment refers to one and certain evidence refers to the other, variance between indictment and proof is immaterial.” Id. at 885.

In the case of Rivas v. State, 501 S.W.2d 918 (Tex.Crim.App,1973), the deceased was named in the indictment as “Everado Gai-tan.” The proof showed that he was a Mexican national who had been in this country only a short time. The death certificate offered by appellant showed the deceased’s name as “Everardo Gaytan Maldonado.” Evidence was admitted to show the Spanish custom of a person taking the names of both his father and mother. The surname of the mother of the deceased was “Maldonado.” There was also evidence in the record that the deceased was known by the name alleged in the indictment. The court held there was no fatal variance. Id. at 920.

In the case at bar, the death certificate identifies the deceased as Hilario Roquis; it lists his father’s surname as Roquis and it lists his mother’s surname as Cervantes; it indicates the removal of deceased’s body to Matamoros, Mexico. The evidence in the case included testimony about the custom of Mexican nationals regarding their surnames. Detective-Sergeant Richard Rodriguez testified that, in his experience, he found that Mexican nationals carried their mother’s last name, unlike Mexican-Americans who generally carried their father’s last name. Detective Rodriguez, when asked if he had been able to determine the name of the deceased, answered, “Cervantes. Roquis Cervantes was the name on the individual.” Eyewitness, Juan Flores, identified the deceased as Hilario Cervantes.

There is sufficient evidence in the record to show that the deceased was known by the name alleged in the indictment.

The object of the doctrine of variance is to avoid surprise, and for such variance to be material it must be such as to mislead the party to his prejudice. Plessinger v. State, 536 S.W.2d 380 (Tex.Crim. App.1976). The purposes of the requirement that the proof correspond to the allegations in the indictment are: first, to put an accused on notice as to the charge against him; and second, to allow the accused to protect himself against double jeopardy. Gill v. State, 670 S.W.2d 758 (Tex.App. — Corpus Christi 1984, no pet.). There is no question that appellant knew the substance of the charges against him, as illustrated by his defense against the charges. Should a further attempt be made to put appellant in jeopardy for this offense, he has ample material available with which to defeat such an attempt.

The proof of the name of the deceased conformed with the indictment. Appellant’s first ground of error is overruled.

In ground of error number two, appellant claims that the evidence is insufficient to sustain the conviction. The evidence shows that, on November 22, 1983, a fight broke out in the Safari Lounge in Aransas Pass, Texas, which resulted in the fatal shooting of one of the participants of that fight. An eyewitness, Juan Flores, testified that appellant and deceased were hitting each other with “sticks” just prior to the shooting. Flores testified that he saw appellant shoot the deceased and drop the gun on the floor. Another eyewitness, Margie Peed, testified that she saw appellant “pointing” at deceased at the time of the shooting, but said that it was too dark in the bar for her to determine whether there was a gun in appellant’s hand. Peed also testified that she saw no one else “pointing” at deceased at the time he was shot. Appellant, when arrested, had two live rounds of ammunition in his pocket, which were the same caliber as the murder weapon. Additional testimony placed appellant, at the time of the shooting, with his back to the corner, with the deceased facing him. The murder weapon was found on the floor where appellant had been standing and fighting with the deceased.

The appellate court, when reviewing a case to determine the sufficiency of the evidence to support a conviction, will look at all the evidence in the light most favorable to the verdict or judgment. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App. 1984). After reviewing the entire record, we find that there was sufficient evidence for the jury to find beyond a reasonable doubt that appellant shot the deceased. The evidence clearly places appellant in the position from which the fatal shot was fired while appellant was standing alone in a corner fighting with the deceased. Additionally, an eyewitness testified that he saw appellant shoot the deceased. The evidence is sufficient to sustain the conviction. Appellant’s second ground of error is overruled.

Appellant’s third ground of error alleges that the trial court erred in failing to grant appellant’s motion for instructed verdict because the evidence was conclusive as a matter of law that deceased was killed as a result of his unlawful, deadly attack on appellant. A review of the evidence does not substantiate appellant’s contention. Appellant and deceased were fighting with sticks. Appellant only received one observable injury, a knot over his right eye.

The matter of self-defense was a fact question submitted for determination by the jury. As previously stated by this Court: “The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony. A jury is entitled to accept one version of the facts and reject another or reject any of a witness’ testimony.” Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim.App.1981); See TEX.CODE CRIM. PROC.ANN. art. 38.04 (Vernon 1979); Stanley v. State, 664 S.W.2d 746 (Tex.App. —San Antonio 1983, pet. ref’d). The jury heard eyewitness Juan Flores testify to having seen appellant and deceased fighting with sticks, then to seeing appellant shoot deceased and then drop the gun on the floor. The jury had ample opportunity to see all the photographs and exhibits, and to determine the credibility of the witnesses and the weight to be given their testimony. The jury resolved this matter against appellant. We cannot say as a matter of law that this decision was error. Rios v. State, 510 S.W.2d 326, 327 (Tex.Crim.App. 1974). Appellant’s third ground of error is overruled.

The judgment of the trial court is AFFIRMED.

      . On cross-examination, Flores somewhat hesitantly agreed that the name "Hilario Roquis” was correct. He was cross-examined as follows:
      Q Now, the name of the man that was lying on the ground was named Roquis; is that correct?
      A (The witness gives no response.)
      Q Hilario Roquis?
      A Yes, sir.
      Flores did not, however, repudiate his former identification of the deceased as Hilario Cervantes.


author: BENAVIDES, Justice.

text:
    Michael Albert TOMTISHEN, Appellant, v. The STATE of Texas, Appellee.
    No. 13-84-339-CR.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 24, 1985.
    Thomas G. White, Corpus Christi, for appellant.
    T.R. Bandy, Corpus Christi, for appellee.
    Before NYE, C.J., and BENAVIDES, SEERDEN, JJ.
   OPINION

BENAVIDES, Justice.

Appellant pled nolo contendere to the misdemeanor offense of operating a motor vehicle in a public place while intoxicated. The court sentenced appellant to 90 days in the Nueces County Jail, probated the jail term for two years, and imposed a fine of two hundred fifty dollars.

Officer Linda Roberts arrested appellant after she observed him driving erratically. After much difficulty, she was eventually able to transport the appellant to the county jail.

After first insisting upon taking a breathalyzer test, appellant then refused to submit to such a breathalyzer examination. Appellant’s refusal was recorded on video tape.

After the taping session, appellant was placed in the room where breath tests were administered, but continued his refusal to take the test. Appellant refused to sign a form indicating his refusal to submit to a breath test unless he could consult with an attorney. As Officer Roberts completed the paperwork necessary to book appellant, another officer, Sergeant Morgan, entered the room.

When that officer was informed that appellant refused to take a breath test, he informed appellant, “Boy, you’re really making a mistake,” and upon being asked by the appellant, he informed the appellant of the consequences of such a refusal. Appellant then took the test, telling Sergeant Morgan that Officer Roberts had not explained the consequences to him.

Officer Roberts testified that she had “very carefully” explained the consequences to appellant and that she told appellant he could not deny this because it was recorded on video tape.

In a single ground of error, appellant alleges the trial court erred in overruling appellant’s motion to suppress the result of the breath test administered, after Officer Morgan’s remarks, to determine alcohol concentration in appellant’s blood. He argues the test was the result of badgering, and that there was no voluntary consent.

Appellant’s consent, in order to be effective, must have been voluntary. Turpin v. State, 606 S.W.2d 907, 914 (Tex. Crim.App.1980). Whether the consent was voluntary was a question for the trier of fact. Id. The trial judge is fact finder in a hearing on a motion to suppress. Luckett v. State, 586 S.W.2d 524, 527 (Tex.Crim. App.1979). As fact finder, the trial judge may choose to believe or disbelieve any or all of a witness’ testimony. Id.

In the instant case, the court heard the evidence, observed the officer as she testified, and also viewed the videotape! Despite an absolute right to take the stand to controvert the officer’s version of the events, appellant chose not to do so. The court then denied appellant’s motion to suppress.

We have reviewed the record and find sufficient evidence to support the trial court’s ruling. Though at times appellant refused to take the breath test, there was also evidence that before he arrived at the county jail, he insisted that he be allowed to do so. Officer Roberts also testified that after Sergeant Morgan’s explanation to appellant, he “volunteered” to take the test without being asked again. Officer Roberts testified this was after she had told appellant he could take the test or not take the test, as it did not matter to her.

As previously stated, it was within the discretion of the trial court as trier of fact to weigh the evidence and make a decision whether appellant voluntarily consented to take the breath test. The court concluded that he did. Appellant’s ground of error is overruled.

The judgment of the trial court is AFFIRMED.


author: BURGESS, Justice. BROOKSHIRE, Justice,

text:
    Ex parte Forrest E. SEYMOUR.
    No. 09 84 383 CY.
    Court of Appeals of Texas, Beaumont.
    Jan. 31, 1985.
    Rehearing Denied Feb. 20, 1985.

      Steven E. Hollimon, East Texas Legal Services, Inc., Beaumont, for appellant.
    Everett Lord, Beaumont, Melvin Boneau, Port Arthur, for appellee.
   OPINION

BURGESS, Justice.

Relator filed an application for writ of habeas corpus alleging illegal confinement in the Jefferson County jail. A brief recitation of the sequence of events is necessary. On March 18, 1983, relator was divorced and was required to make periodic child support payments. On October 25, 1983, the 317th District Court of Jefferson County, Texas, found relator in contempt of court for failing to make the child support payments previously ordered and placed him on probation for five years. On November 6, 1984, relator’s ex-wife filed a sworn motion to revoke his probation alleging non-compliance with the order of probation. The 317th District Judge ordered a warrant issued instanter for the production of relator. A warrant was issued on November 8,1984, and relator was incarcerated in the Jefferson County Jail on December 21, 1984. His application for writ of habeas corpus was filed in this court on December 28, 1984.

Relator, alleges his confinement is illegal for two reasons. First, although the relator acknowledges he is being held as a result of a warrant, he alleges the issuance of the warrant was illegal because he was not given any notice and was denied due process in violation of the U.S. and Texas Constitutions.

Tex.Fam.Code Ann. sec. 14.12(d) (Vernon Pamph.Supp.1985) states:

“If a probationer violates a condition of probation, the court may cause the probationer’s arrest by warrant as in other cases....”

Relator cites no cases which hold a statute such as this unconstitutional, although it could be applied as such. Here, the warrant was issued as a result of sworn motion which included a copy of official court records. Certainly, this is minimal due process and thus the warrant was properly issued.

Relator’s second allegation is he has not been brought promptly before the court causing the arrest and has not been afforded a hearing on the motion to revoke his probation.

Tex.Fam.Code Ann. sec. 14.12(d) (Vernon Pamph.Supp.1985) further states in pertinent part:

“An arrested probationer shall be brought promptly before the court causing the arrest, and the court, after a hearing without a jury, may continue, modify, or revoke the probation as the evidence warrants.”

Partially recalling the sequence of events, the relator was confined in the Jefferson County, Texas Jail on December 21, 1984, a Friday. Because of the weekend, December 22 and 23, and a holiday period, December 24 and 25, the next working day was December 26,1984. As of the filing of the application for writ of habeas corpus, December 28, 1984, the relator had not been brought before the court causing the arrest, nor had a hearing on the motion to revoke his probation been held. Did the failure to promptly bring the probationer before the court result in an illegal confinement subject to habeas corpus relief? We believe so.

Obviously, the legislature wanted arrested probationers brought before the court causing the arrest or they would not have said so in clear and concise language. Thus, the only question is, what is “promptly”? We believe a reasonable definition of “promptly” is seventy-two (72) hours from the time the arrested probationer arrives in the county jail of the court causing the arrest, excluding weekends and holiday periods. This is not to hold that every confinement, in this situation, beyond that period, is illegal per se, only that confinement past that period would be a pri-ma facie illegal confinement, subject to a showing of extraordinary circumstances.

Further, the hearing contemplated by the statute need not be held within 72 hours. We only hold the arrested probationer should be brought before the court for the purposes of determining such matters as whether the probationer is represented by counsel or is indigent, if bail is appropriate, to advise the probationer of the date, time and place of the hearing, etc.

The relator, having been arrested and confined in the county jail for a period in excess of 72 hours and not having been brought before the court causing his arrest within that time, has been illegally confined and is entitled to habeas corpus relief.

It is ordered that relator be discharged from such confinement and released from any liability on his bond.

BROOKSHIRE, Justice,

dissenting.

With respect, this dissent is filed. Relator has the heavy and onerous burden of showing that the District Court’s order was void and not merely voidable. These habe-as corpus proceedings are a collateral attack on the District Judge’s orders. Habe-as corpus is not an appeal but an original proceeding in this case. There is no showing in this case that the order of arrest was void.

There is no statement of facts before us. There are several documents before us. Among the documentary evidence is a signal and important document that shows an approved and enforceable order of support, which was actually signed and approved by the Relator, Forrest E. Seymour, and also the Respondent, Lena Marie Seymour, in the judgment of divorce, dated March 18, 1983. There is further documentary evidence, which was admitted to be correct, that an order of the court holding Relator in contempt was entered on the 25th day of October, 1983, and finding an arrearage of delinquent child support payments in the amount of $900.00. The order of October 25, 1983, also sets certain terms for probation of Relator. At that contempt hearing the Relator was represented by an able counsellor. The decree of contempt was signed by both Forrest E. Seymour and his attorney. They both approved it. Among other things, Relator’s signature acknowledged and approved of the following condition of probation:

“I have received a copy of this order . from the Clerk and fully understand each of the conditions imposed, and I understand that this probation could be revoked for any violation. I further understand that in the event I fail to make child support payments as ordered above, a warrant will be issued for my arrest.” (Emphasis added)

A motion to revoke probation, setting forth a violation, was filed. The motion was sworn to by Respondent. She requested that a warrant issue. There was exhibited to the trial judge, as “Exhibit A”, the Jefferson County Child support bookkeeping ledger showing lack of payment. Subsequent to this motion a capias was issued on November 8,1984. However, the Relator was not arrested until the 21st day of December, 1984, at 4:41 P.M. which was on the Friday prior to the weekend of the annual observance of the Christmas holidays. The Jefferson County Courthouse did reopen for business on Wednesday, December 26, 1984. Two days later, on December 28, 1984, the application for writ of habeas corpus was filed.

The legislature has mandated, by TEX. FAM. CODE ANN. sec. 14.12(a) (Vernon Pamph.Supp.1985) that:

“If the court finds that a person who has been ordered to make payment for the support of a child is in contempt of court for the failure or refusal to make a payment, the court may suspend the imposition of the court’s order of commitment and place the person on probation on the condition that the person shall continue the court-ordered child support payments with court costs and on other reasonable conditions that the court requires.” (Emphasis added)

Section 14.12(d) provides:

“If a probationer violates a condition of probation, the court may cause the probationer’s arrest by warrant as in other cases. An arrested probationer shall be brought promptly before the court causing the arrest, and the court, after a hearing without a jury, may continue, modify, or revoke the probation as the evidence warrants.” (Emphasis added) .

I think the trial judge acted in accordance with the mandate and command of the Legislature. I agree that an arrested probationer shall be brought promptly before the court causing the arrest. In our instant case, the unusual sequence of a weekend plus the holidays of Christmas Eve and Christmas Day intervened. There is no showing in the record, as I read it, that when the Relator obtained able counsel, any realistic attempt was made causing the Relator to be promptly brought before the issuing court for a hearing. Nevertheless, if this had been done, the court, under Sec. 14.12(d), had broad discretion in continuing, modifying or revoking the probation. It is not the position of the Relator, as I understand it, that he was not in contempt of court or, for some reason, could not pay the child support. He has not shown abuse by the trial judge in relation to Sec. 14--12(d) under this record.

In view of the numerous proceedings involving the continued problem of child support, it would seem to me that in this case, under all the facts, a reasonable and prudent manner of resolving it would be to remand the case to the trial judge for a very early hearing, the Relator remaining at liberty under his nominal, existing bond. This would require a reasonable amount of time because the Relator would desire to be present with his attorney, as well as the Jefferson County Child Support Office and its records, as well as the Respondent and her attorney of record. See Ex Parte Werblud, 536 S.W.2d 542 (Tex.1976). As I understand the court’s opinion, a grant of the writ of habeas corpus would require unnecessary expenses which could be avoided in favor of economy and efficiency in the judicial system and in the enforcement of child support payments.

I would construe the word “promptly” to mean a reasonable amount of time considering all the attendant facts and circumstances and considering all the rights of both the Relator and the Respondent and the rights of the infant, to have continuing, regular, periodical support payments. To decree a hard and fast rule of 72 hours would seem to be impractical especially in certain judicial districts that have multiple counties.

A copy of the October 25, 1983, decree was attached to Relator’s pleadings as Exhibit “B”. Therein, Relator was found guilty of contempt in that he willfully failed and refused to pay child support as previously ordered in the amount of $900.00 in arrearage and that was the decree which contained the agreement of Forrest Seymour and his attorney of record that Seymour did:

“... [Fjurther understand that in the event I fail to make child support payments as ordered above, a warrant will be issued for my arrest.”

Relator verified that he had been informed that he “would lose his job at Taco Bell, in Vidor, Texas, unless he returns to work.” He also swore that he was remarried, lived in Yidor and had been employed by Taco Bell in Vidor for over a year.

The small child involved is Thomas Joseph Seymour, born in Galveston, Texas, on January 25, 1982, and is only 3 years old.

Relator relies on Ex Parte Hart, 520 S.W.2d 952 (Tex.Civ.App. — Dallas 1975, no writ). But that case was decided before TEX.FAM.CODE ANN sec. U.12 (Vernon Pamph.Supp.1985) was added by Acts 1981, 67th Leg. p. 2536, ch. 674, sec. 1, eff. Sept. 1, 1981.

Relator also places major reliance on Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983). Ridgway supra, stresses that due process requires the assistance of counsel for an accused contemnor in constructive contempt cases and an indigent person who faces imprisonment is entitled to appointed counsel. I agree completely, but there is no showing in our record that Seymour was indigent, having a steady job with Taco Bell; additionally, our record is devoid of any request by the Relator to the court to appoint an attorney. Ridgway, supra, at 1415, states:

“Under Texas law, if the accused eon-temnor does not have the means to pay the arrearage, he cannot be committed to jail for the purpose of coercing him to make such payments. A contemnor can be incarcerated only for failure to pay with his present funds, in which case he is not indigent, or for what the state classifies as criminal contempt, in punishment for his past contemptuous behavior, and then only if it is determined that he could have made those payments when they became due.” (Emphasis added)

But Ridgway, supra, also approves this holding:

“Once the state has proved mere delinquency in payments, the accused has the burden of proving that his failure to pay was not contemptuous. He must present evidence establishing not only that he has no funds but also that he has no source of funds. Ex Parte Rohleder, 424 S.W.2d 891, 892 (Tex.1967). Such proof consists of these elements:
(1) that the relator lacks sufficient personal or real property which could be sold or mortgaged to raise the needed sum; and
(2) that the relator has unsuccessfully attempted to borrow the sum from financial institutions ...; and
(3) that the relator knows of no other source, including relatives, from whom the sum could be borrowed or otherwise secured.” (Emphasis added)

But showing his indigency and his non-contemptuous failure are burdens that must be borne by the Relator. It cannot be said that Relator was a stranger to a proceeding involving contempt of court, since he had been before the same judge in October, 1983, with counsel and found in contempt.

Also, from the documentary evidence before the judge, there is a sworn statement of total arrearage of $2,225.00 through 3-16-84 under the 3-18-83 order — also ar-rearage of $765.00 through 3-16-84 under the 10-25-83 order of probation.

The return was not filed in the court’s record until January 3, 1985, which was probably the earliest time the trial judge could have had official notice that the Relator was incarcerated in the Jefferson County Jail.

The warrant of arrest was issued pursuant to the legislative mandate as provided by the TEX.FAM.CODE ANN. sec. U.12 (Vernon Pamph.Supp.1985), as well as the Relator’s agreement. There is no affirmative showing in our record that the Relator asked for a hearing in the issuing court; that the Relator requested an indigency hearing; that the trial court, systematically or habitually, denied attorneys to indigent persons. I find no lack of due process. I would remand and direct the trial judge to conduct a hearing forthwith without the necessity of starting all over again on the motion to revoke probation, the Relator remaining at liberty.

This dissent is respectfully submitted.

      . Actually upon the filing of the application for writ of habeas corpus, the relator was allowed bail by the Court of Appeals.