author: NYE, Chief Justice.

text:
    Hubert MURRAY, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-195-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 21, 1985.

      Randy Clapp, Edna, for appellant.
    Robert E. Bell, Dist. Atty., Edna, for appellee.
    Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction of the offense of driving while intoxicated. Trial was to the jury, who found appellant guilty and sentenced him to five years’ imprisonment in the Texas Department of Corrections and a fine of $1,500.00.

Appellant raises six grounds of error on appeal. The first four grounds concern alleged errors committed by the trial court in disallowing certain questions to be asked of potential jurors by appellant’s counsel during voir dire examination. In viewing these grounds of error, we are mindful of the rule that decisions about the propriety of questions asked in jury voir dire is left to the discretion of the trial court and review will be only for abuse of discretion. Ussery v. State, 651 S.W.2d 767 (Tex.Crim.App.1983); Patterson v. State, 598 S.W.2d 265 (Tex.Crim.App.1980). The discretion of the trial court is abused when a proper question about a proper area of inquiry is prohibited. Smith v. State, 513 S.W.2d 823 (Tex.Crim.App.1974). Denial of a proper question prevents the intelligent use of peremptory challenges, which is an integral part of defendant’s right to counsel. Florio v. State, 568 S.W.2d 132 (Tex.Crim.App.1978).

Appellant first argues that the trial court erred in not allowing the following question to be asked of the potential jurors: “Is there anyone in here who feels they would not be able to disagree with the testimony of a police officer?” Appellant cites cases in which the denial of questions similar to the question he asked were determined to be reversible error. Florio, 568 S.W.2d at 133; Hernandez v. State, 508 S.W.2d 853 (Tex.Crim.App.1974).

These cases are clearly distinguishable from the one at bar by the fact that, in the cases cited by appellant, the trial court’s denial of this line of questioning was unequivocal. Here, the trial court never ruled on the state’s objection. After the state made its objection, the following discourse took place between the court and appellant’s counsel:

COURT: All right. Ask the question again and I’ll listen to it. Then I’ll rule on your objection.
COUNSEL: I’ll rephrase the question.

Appellant then asked the veniremen if any of them would give more weight to the testimony of a police officer simply because he was a police officer. There was no objection to this question. Here, there is no showing that appellant was ever denied the opportunity to ask the question. The record clearly shows that he voluntarily rephrased the question and elicited the necessary information from the prospective jurors. Appellant’s first ground of error is overruled.

Appellant next complains that the court’s refusal to allow the following question was reversible error:

... Now the judge is going to instruct you that you should deliberate jointly and you should freely discuss this case among yourselves before you reach a verdict but after you have done this and you have made up your mind honestly and fairly you should give my client Mr. Murray, the benefit of that decision. Now if you’re chosen as a juror would all of you have any problem with doing it? What I mean by that is would you refrain from changing your mind after you’ve already made it up just because you’re the odd man out?
MR. BELL: Your Honor, again the State would object. This is an attempt on the part of the defense attorney to get the jurors to commit themselves on a course of deliberation that at this point they’re not capable of doing to which the State would object. It’s asking them to take the position of inflexibility which the law doesn’t require and which is improper. The State would object to it.
THE COURT: I’m going to sustain the objection with regard to the way it was stated.

Counsel did not thereafter attempt to rephrase the question. The trial court is afforded considerable discretion in determining what questions will be asked of a panel during voir dire examination. Patterson, 598 S.W.2d at 272. While it is most proper to ask the jury panel if each would follow his own conscience in arriving at a verdict, the question asked by appellant is unclear. The trial court did not deny appellant the right to question the venire regarding their ability to follow their consciences in the face of adversity. He merely sustained the objection as to the way the question was phrased by counsel. We find no abuse of discretion. Appellant’s second ground of error is overruled.

Appellant, in his third ground of error, objects to the sustaining of an objection to the following question asked during voir dire: “Can you be that skeptic that I was describing?” This question was objected to by the prosecutor because it asked the prospective juror to be “skeptical” about the evidence. In the context of the record, this line of questioning was appellant’s attempt to determine that the prospective jurors would presume the appellant innocent. The objection was sustained, but appellant was allowed to ask the same venireman if he could presume appellant to be innocent until proven guilty. We find that it was well within the trial court’s discretion to sustain the objection. This in no way limited any information that appellant was attempting to glean from the panel or the individual juror. Appellant’s third ground of error is overruled.

In his fourth ground of error, appellant claims the trial court erred in sustaining an objection to the following question. The following interaction between appellant and the prospective juror took place:

MR. CLAPP (Defense Counsel): Do you presume Mr. Murray to be innocent?
JUROR MELNAR: Yes. I do have feelings about people endangering the lives of others while driving while intoxicated but this case, I can’t say about that.
MR. CLAPP: What kind of feelings do you have?
JUROR: Well, they shouldn’t be driving.
MR. CLAPP: Okay. Well, I don’t think those feelings are any different than feelings anyone else has, do you?
JUROR: No.
MR. CLAPP: Do you feel that you have an especially strong feeling that people shouldn’t endanger the lives of other people?
JUROR: Yes.
MR. CLAPP: Stronger than most other people have?
MR. BELL (District Attorney): I object, Your Honor. It calls for this prospective juror to try to speculate how other people feel about it. She’s stated that she would obey the law which would keep people from drinking and driving.
THE COURT: Sustained.

The objection made by the State that the question would require the juror to speculate on the feelings of others was properly sustained. No abuse of discretion is shown. Appellant’s fourth ground of error is overruled.

In his fifth ground of error, appellant asserts that the trial court erred in refusing to sustain a challenge for cause a juror who demonstrated bias and prejudice. During the voir dire examination, the following exchange took place with regard to a juror whose nephew had been killed by a driver who was operating a vehicle under the influence of alcohol:

MR. CLAPP: Do you think that that’s going to affect your deliberations in this case?
JUROR MARESH: I’ll try not to.
MR. CLAPP: You think you might? JUROR: It’s hard to say until I hear the evidence.
* ⅜ ⅜ * *
MR. CLAPP: Assuming that this case doesn’t involve a traffic accident at all, do you think that your experience with this case is going to affect you in either deciding guilt or in assessing an appropriate sentence?
JUROR: I’ll try not to. I can’t say for sure.
MR. BELL: Mr. Maresh, the true test is this: You understand that that incident that occurred that you’ve just mentioned is totally irrelevant to these proceedings?
JUROR: Right.
MR. BELL: We all come into this world and into this courtroom with certain past backgrounds and experiences. What I want to know from you, and I’m sure the Judge does, it’s not can you set that aside totally because you have to take that which brought you here into that jury room to deliberate, but can you not let those feelings that exist, however strong they may be, influence how you deliberate upon the guilt or innocence or the punishment of Mr. Murray. And understanding that you may have feelings about DWIs, in particular, but can you set those aside and base your decision from the evidence presented as opposed to feelings you may have about this incident?
JUROR: I’ll try. I can’t say for sure.
MR. BELL: Well, we all — No one else can know for sure. But are you telling this Court that you will do that?
JUROR: Yes, I will do that.

When bias or prejudice is not established as a matter of law, it is within the trial court’s discretion to determine whether bias or prejudice actually exists to the extent that the prospective juror is disqualified and should be excused from jury service. In order to present reversible error for the refusal of the trial court to grant a challenge for cause, a defendant must show that he was forced to exercise a peremptory challenge to excuse a prospective juror for whom his challenge for cause should have been sustained; he then must show that he exhausted his peremptory challenges and was later forced to accept a juror whom he found objectionable. O’Bryan v. State, 591 S.W.2d 464, 473 (Tex.Crim.App.1979). The record shows that appellant utilized one of his peremptory challenges on Juror Maresh. Appellant never stated to the court in a form of objection that he was forced to accept an objectionable juror. In fact, he agreed, in the record, to use eight peremptory challenges rather than ten because of the shortage of potential jurors the day of trial. Denying the challenge for cause was not error. See Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982). The error, if any, was not preserved. Appellant’s fifth point of error is overruled.

In appellant’s last ground of error, he argues that the evidence was insufficient to prove the element of intoxication beyond a reasonable doubt. Appellant suggests that this is a circumstantial evidence case and it was incumbent upon the trial court to exclude every other reasonable hypothesis except the guilt of appellant. In reviewing the sufficiency of the evidence, we review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). See Lopez v. State, 643 S.W.2d 431 (Tex.App.—Corpus Christi 1982, no pet.).

Appellant here asserts that there was insufficient evidence to establish the essential element of intoxication. Bill Davidson testified that he had been employed as a State Trooper for the Texas Department of Public Safety for more than ten years. He testified that, on the evening of September 17, 1983, he observed defendant’s vehicle straddled between two lanes. He saw the vehicle pull over near a curb and come back and cross the center stripe. According to Davidson, the vehicle was generally weaving from that point until he stopped the vehicle. He indicated that the actions of the appellant driving his vehicle were consistent with those of an intoxicated driver.

Davidson said that, when he stopped appellant, he stumbled from the vehicle out into the road. Appellant was swaying around and generally unstable upon his feet. According to Davidson, appellant’s eyes were bloodshot, and there was a very strong odor of an alcoholic beverage about his person. Davidson administered the in-toxilyzer examination to the defendant and testified that it showed the appellant’s blood-alcohol content to be 0.17. The presumed rate of intoxication is 0.10. TEX. REV.CIV.STAT.ANN. art. 670li-1(2)(B) (Vernon Supp.1985). It was Davidson’s opinion, based upon his experience, that appellant was most definitely intoxicated on that evening while operating a motor vehicle.

Carl Lecocke, a chemist with the Department of Public Safety, testified that he had checked the intoxilyzer utilized to administer the test upon appellant on August 25, 1983 and on September 19, 1983 and found that it was producing accurate results. He verified the 0.17 reading and testified that he believed that the appellant would have lost normal use of his mental and physical facilities by reason of the ingestion of that amount of alcohol.

Conflicting evidence was presented through the testimony of appellant and cross-examination of the State’s witnesses. Appellant testified that he drank only three beers on the evening in question during a five-hour period. He also claimed that he took a beer to go. He said that he has trouble with his legs which makes his knee “buckle” and that he weaves when he walks. According to appellant, he was laying formica with wellwood cement on the day of the incident. He was in an enclosed area for a period of 8-8½ hours. He said that the can contained warnings that it should be used only in well-ventilated areas. The cement fumes which he had inhaled contained toluene, dicholoromethane and methyl ethyl ketone, which appellant attempted to prove by cross-examination could have caused the intoxilyzer to register inaccurately.

The jury heard all of the evidence and found appellant guilty. We hold that the testimony of the officer as well as the result of the intoxilyzer were sufficient direct evidence to support appellant’s conviction. Annis v. State, 578 S.W.2d 406 (Tex.Crim.App.1979); Whisenant v. State, 557 S.W.2d 102 (Tex.Crim.App.1977); Dorsche v. State, 514 S.W.2d 755 (Tex.Crim.App.1974). We find that the testimony constituted direct evidence of intoxication, and, as such, the state was not required to exclude every other reasonable hypothesis except the guilt of appellant. See Reneau v. State, 321 S.W.2d 886 (Tex.Crim.App.1969); Hayes v. State, 162 Tex.Cr.R. 660, 288 S.W.2d 771 (1956). Appellant’s sixth ground of error is overruled, and the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: THOMAS, Justice.

license: Public Domain

text:
    Sammy Earl AFINOWICZ, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-062-CR.
    Court of Appeals of Texas, Waco.
    Feb. 28, 1985.

      Lynn W. Malone, McDonald, Harmon & Malone, Waco, for appellant. *
    Vic Feazell, Dist. Atty., Crawford Long, Asst. Dist. Atty., Waco, for appellee.
   OPINION

THOMAS, Justice.

This is an appeal of an order revoking felony probation. Appellant’s probation was revoked, and he was sentenced to five years in prison for driving while intoxicated. He contends that the court lacked jurisdiction to revoke his probation because the capias which was issued when the State amended its motion to revoke was never executed and because the State failed to show that it had exercised due diligence in attempting to serve the capias. Appellant also argues that the court abused its discretion when it revoked his probation because the evidence was insufficient to support the alleged violations and because one of the alleged violations failed to include a venue allegation. The judgment is affirmed.

On November 30,1978, Appellant waived his right to a jury trial and plead guilty to the felony offense of driving while intoxicated. The court placed Appellant on five years probation on February 23,1979, after assessing his punishment at five years in prison. On November 7, 1983, the State filed a motion to revoke, and a capias was issued. Appellant was arrested and served with a copy of the motion on January 26, 1984. The revocation hearing was scheduled for February 17. On the day of the hearing, Appellant moved to quash the motion to revoke, and the hearing on the motion to revoke was rescheduled for February 24. On February 17 the State filed an amended motion to revoke, and a capias was issued but never executed. The revocation hearing was later rescheduled for March 23, and Appellant, who was released on bond on February 17, appeared at the hearing with his attorney.

At the revocation hearing the State elected to proceed on the amended motion to revoke. Appellant objected to the proceeding because the capias that was issued in connection with the amended motion to revoke had not been served and because the State had not shown that it had used due diligence in attempting to execute the capi-as. The court overruled his objections and proceeded with the hearing on the amended motion. Having found that Appellant had violated three conditions of his probation, the court revoked his probation and sentenced him to five years in prison. Appellant appeals on four grounds.

In his first ground of error Appellant claims that the court abused its discretion when it permitted the State to proceed on the amended motion and when it revoked his probation under the amended motion. He questions whether the court had jurisdiction to revoke his probation because the second capias was never executed and because the State failed to show that it had exercised due diligence in attempting to serve the capias.

When a motion to revoke is filed and a capias is issued before the expiration of a probationary period, the court acquires a limited jurisdiction to hear the motion after the probation period expires. Zillender v. State, 557 S.W.2d 515, 519 (Tex.Cr.App.1977). This jurisdiction extends to allegations contained in an amended motion to revoke which is filed during the probation period. See id. at 519 n. 4; Nicklas v. State, 580 S.W.2d 537, 541 (Tex.Cr.App.1975); McBee v. State, 166 Tex.Crim. 562, 316 S.W.2d 748 (1958). Article 42.12(8)(a) of the Texas Code of Criminal Procedure, which authorizes the amendment of a revocation motion, does not require the district clerk to issue a capias when an amended motion to revoke is filed. See Tex.Code Crim.Proc.Ann. art. 42.12(8)(a) (Supp.1985). Thus, when the State filed the original motion to revoke and issued the first capias, the court acquired limited jurisdiction to hear the motion after the probation period expired. This jurisdiction included the power to hear the amended motion because it was filed within the probation period. Because article 42.12(8)(a) did not require the clerk to issue another capias after the State filed its amended motion, the State was not required to execute the second capias or show due diligence in attempting to execute it. The court already had jurisdiction over the case so a second capias was not required for the court to have jurisdiction.

Furthermore, Appellant was either in jail or under bond when the amended motion was filed; therefore, no logical purpose would be served by issuing and serving a second capias on Appellant merely because the State had amended its motion to revoke. Cf Tex.Code Crim.Proc. Ann. art. 23.03 (stating that, when an indictment is presented, the district clerk need not issue a capias for a defendant who is already in custody or under bond). Moreover, once Appellant was under bond, he could not be rearrested and required to give another bond, unless the court found that his bond was defective, excessive or insufficient in amount, or that the sureties, if any, were not acceptable, or for any other good and sufficient cause. See Tex. Code Crim.Proc.Ann. art. 17.09(2), (3). To hold that a probationer under bond must be rearrested and required to give another bond every time the State amends a motion to revoke probation would countenance a procedure ripe for harassment and potential abuse.

Because the second capias was not executed, it appears that Appellant was never served with a copy of the amended motion. A more serious question, therefore, is whether the court abused its discretion when it revoked probation under an amended motion of which Appellant had no notice. Due process requirements do apply to probation revocation proceedings. Caddell v. State, 605 S.W.2d 275 (Tex.Cr.App.1980). To satisfy due process, the State must proceed by a written motion to revoke which fully informs the probationer of the allegations relied on by the State. Id. Furthermore, the court can only revoke probation on written allegations of which the probationer has due notice. Id.

The original motion to revoke was served on Appellant when he was arrested on January 26. One of the allegations in the original motion was that Appellant had violated his probation when he “[flailed to totally avoid the use of alcoholic beverages; to-wit: On or about September 22, 1983, [Appellant] did then and there consume alcoholic beverages.” Appellant had written notice of this allegation and should have been prepared to defend against it when he appeared at the revocation hearing. Appellant cannot, therefore, successfully argue that he did not have notice of this allegation.

This allegation was also alleged in the amended motion to revoke, and the court found that Appellant had, in fact, committed this violation. Regardless of the number of violations alleged, sufficient proof of one violation will support a revocation order. Taylor v. State, 604 S.W.2d 175, 180 (Tex.Cr.App.1980). Therefore, if there is sufficient evidence to sustain this one allegation, the court’s revocation order must be affirmed because the court had jurisdiction and Appellant had due notice of this allegation.

At a probation revocation hearing the State has the burden of proving by a preponderance of the evidence that the probationer committed an alleged violation. Wilson v. State, 645 S.W.2d 932 (Tex.Cr.App.1983). Furthermore, in a revocation hearing the court is the sole judge of the credibility and the weight of a witness’ testimony. Id. Appellate review of an order revoking probation is therefore limited to the issue of whether the court has abused its discretion. Id.

At the hearing, Officer Gonzales testified that on September 22, 1983, he stopped Appellant outside of a bar. He had observed Appellant staggering down the sidewalk carrying a half-gallon of vodka. Gonzales talked to Appellant, noticed his blood shot eyes, and concluded that he was intoxicated. Viewing this evidence under the appropriate standard, we conclude that the court did not abuse its discretion when it revoked Appellant’s probation for consuming alcohol. Having concluded that the court had jurisdiction of the revocation proceeding, that Appellant had due notice of the ground for revocation, and that the evidence was sufficient to support the court’s finding of such violation, we overrule ground one.

In his fourth ground of error Appellant claims the allegation that he had consumed alcoholic beverages could not support the court’s revocation order because it did not contain an allegation of where the violation occurred. The condition imposed by the court (i.e. that Appellant abstain from consuming alcoholic beverages) was not limited to a particular place; therefore, the State did not have to allege or prove that Appellant had violated the condition by consuming alcoholic beverages in a particular place. See Acton v. State, 530 S.W.2d 568 (Tex.Cr.App.1975). Therefore, the court did not abuse its discretion when it refused to quash the allegation because of the State’s failure to allege venue. Ground four is overruled.

Because one sufficient ground for revocation will support a revocation order, we do not reach Appellant’s other grounds of error. See Moore v. State, 605 S.W.2d 924 (Tex.Cr.App.1980).

Affirmed.


text:
    Leno PERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-119-CR.
    Court of Appeals of Texas, Waco.
    Feb. 28, 1985.
    Tim Altaras, Altaras & Altaras, Cle-burne, for appellant.
    Dan M. Boulware, Dist. Atty., Cleburne, for appellee.
   OPINION

THOMAS, Justice.

This is an appeal of a felony conviction for driving while intoxicated. The jury found Appellant guilty of driving while intoxicated and also found that he had been convicted in September 1976 of the same offense as a misdemeanor. The jury set his punishment at five years in prison, the maximum penalty for the offense. We affirm.

The indictment alleged the primary offense and also charged the prior misdemeanor offense to elevate the primary offense to a felony. During the guilt-innocence phase, the record of the 1976 misdemeanor conviction was introduced into evidence as State’s exhibits three and four. Appellant contends in his first ground that the court erred when it allowed the record of this misdemeanor conviction to be introduced into evidence over his objection. He argues that the record of the 1976 misdemeanor conviction did not reflect that he had waived his right to a jury trial, either in writing or otherwise. This ground cannot be sustained.

When the State first offered exhibits three and four into evidence the following occurred:

[Prosecutor]: Judge, we’re going to offer State’s Exhibits No. 3 and State’s Exhibit No. 4.
[Defense Counsel]: Your Honor, we have no objection.
THE COURT: What is it you wish for her [deputy district clerk] to find?
[Defense Counsel]: If there is a written waiver of a right to trial by jury [in the misdemeanor record].
THE COURT: All right.
[Defense Counsel]: Other than that, there is no objection.

Later, the following occurred when the State re-offered exhibits three and four into evidence:

BY [Defense Counsel]:
Q And did you [deputy district clerk] check the records of the District Clerk’s office to see if there was a written waiver of a right to trial by jury?
A Yes, I did.
Q On [Appellant] back in 1976 we’re talking about?
A Yes, I did.
Q And that record reflected what?
A That there was not a signed waiver.
* * * * * *
[Prosecutor]: Judge, we would of course, before this witness [deputy district clerk] is excused, based on her testimony, we’re going to offer into evidence State’s Exhibit No. 3 and State’s Exhibit No. 4.
[Defense Counsel]: No objection, Your Honor.

Appellant failed to timely object to the admission of the exhibits. A failure to timely object waives any error in the admission of evidence and presents nothing for review. Boulware v. State, 542 S.W.2d 677, 682 (Tex.Cr.App.1976). Errors of constitutional dimension can also be waived by failure to timely object. See id. at 682; Wright v. State, 511 S.W.2d 313, 315 (Tex.Cr.App.1974) (holding defendant waived error that he was not represented by counsel in prior conviction by failing to object when the record was offered into evidence). Ground one is overruled.

Appellant asserts in his second ground that the jury committed reversible error when it set his punishment at five years in prison because the jury considered the effect of the parole law in assessing his punishment. This complaint was first raised in a motion for new trial which was overruled by the court.

During the punishment phase the State introduced evidence of Appellant’s prior convictions, including a misdemeanor conviction on August 11, 1983, for driving while intoxicated. Appellant, who had been assessed one year in the county jail for this prior offense, was arrested for the felony offense of driving while intoxicated on November 14, 1983. During its deliberation on punishment, the jury sent a note to the court which inquired: “If [Appellant] was sentenced to one year [in the county jail] on August 11, 1983, why was he out driving in November, 1983?” The court refused to answer the question and told the jury that it was bound by the court’s charge, which contained the following instruction:

In determining the punishment in this case you are instructed that you are not to discuss among yourselves how long the [Appellant] will be required to serve any sentence of confinement you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Parole, and the Governor of the State of Texas, and are of no concern to you.

The foreman was the only member of the jury who testified at the hearing on the motion for new trial. He admitted that a question had arisen during the jury’s deliberation on punishment of how Appellant could be out of jail on November 14, 1983 [the date of the felony offense], when he had just been sentenced on August 11 to one year in the county jail for driving while intoxicated. The foreman stated, however, that the jury followed the court’s admonishment to adhere to the instructions in the charge. He insisted that Appellant’s five-year sentence was assessed because the jury believed that he would benefit from alcoholic rehabilitation programs in the state’s prison system, and that he should be confined long enough to benefit from these treatment programs.

To determine whether a discussion of the parole law by a jury constitutes reversible error, a five-pronged test must be applied. Sneed v. State, 670 S.W.2d 262, 266 (Tex.Cr.App.1984). Under this test a defendant must show that there was (1) a misstatement of the law (2) asserted as a fact (3) by one professing to know the law (4) which is relied on by other jurors (5) who for that reason changed their vote to a harsher punishment. Id. Fact issues relating to jury misconduct that are raised at a hearing on a motion for new trial are for the determination of the judge. Id. Where the motion for new trial is overruled, the judge’s ruling will be upheld unless there is an abuse of discretion shown. Id.

At the new trial hearing Appellant failed to show, among other things, that any juror voted for harsher punishment because of the misstatement of a parole law by another juror. Appellant thus failed to satisfy the five-pronged test in Sneed, and the court did not abuse its discretion when it overruled Appellant’s motion for new trial. Ground two is overruled.

In ground three Appellant complains that the prosecutor committed fundamental error in his jury argument during the punishment phase when he told the jury:

What you have really got the opportunity to do today, and you may never have it again, is to prevent a tragedy. I’m telling you a tragedy is going to occur. When it does, anybody is going to be powerless to change it. Going to be absolutely powerless. But you have got an opportunity right now to prevent a tragedy that is going to happen as sure as you and I are in this courtroom. You get up in the morning and you say, “when are they going to do something about that?” You’re sitting there drinking coffee and turn the page, and you read about another tragedy. “When are they going to do something about that?” Right now, you are the “they” that can do something about it. Because you’ll never be in the position you are right now. Where you can do something about the problem that’s laid in front of you. You are the “they” that can do something about. You’ll never be there again. Really, what you have got to decide is whether when you had the opportunity to change the course, if you took it. And you have got the evidence in front of you because you go out, and you give this man a five year sentence, and I’ll assure you that verdict will be heard and recorded in this county, and it will have an effect.

Appellant contends that this argument constituted a plea that the people of the community where the crime was committed wanted Appellant convicted of the offense. A similar “ ‘you’ and ‘they’ ” argument was held to be a legitimate plea for law enforcement in Haynes v. State, 627 S.W.2d 710, 714 (Tex.Cr.App.1982). Ground three is overruled.

Affirmed.


text:
    Orville VanZANDT, Appellant, v. Dorothy McKelvy HOLMES, et al, Appellees.
    No. 10-84-135-CV.
    Court of Appeals of Texas, Waco.
    March 7, 1985.

      Harry L. Dulick, Ferguson & Dulick, Inc., Cleburne, for appellant.
    Terry Bradley, Bradley and Lummus, Cleburne, for appellees.
   OPINION

THOMAS, Justice.

This is a boundary dispute tried in the form of a trespass to try title suit. Orville VanZandt, Plaintiff-Appellant, appeals a take-nothing judgment in favor of Defendants-Appellees, Dorothy McKelvy Holmes, Roger Holmes and Marvin Joe McKelvy. In a non-jury proceeding the court rendered judgment after VanZandt rested but before Appellees had produced any evidence or rested., VanZandt contends that the court erred in this regard because the evidence had raised material fact issues. We reverse and remand.

VanZandt, who had developed the Crest-view Addition to the City of Cleburne, sold Lot 2, Block 854, of the Crestview Addition (Lot 2) to Roger McKelvy by a general warranty deed on July 3, 1953. Appellees, who are Roger McKelvy’s son, daughter and grandson, acquired title to Lot 2 when McKelvy died in 1980. VanZandt owns the lots contiguous to the rear property line of Lot 2. Prior to selling Lot 2 to Roger McKelvy, VanZandt had granted a 10-foot-wide utility easement to Texas Power and Light Company, and utility poles had been erected within the easement. According to VanZandt, the easement extended five feet on either side of the rear boundary line between his and McKelvy’s property. Van-Zandt contended that the utility poles had been erected on the property line in the center of the easement; however, Appel-lees contended that the utility poles had been erected inside the rear boundary line of Lot 2. In October 1982, after having Lot 2 surveyed, Appellees moved a chain-link fence approximately seven to eight feet toward VanZandt’s property line. The fence had been erected by Roger McKelvy shortly after he purchased Lot 2. Van-Zandt claimed that the fence, in its new position, encroached on his rear property line, and he destroyed a portion of the fence. Appellees contended that the fence had been moved to the boundary line. VanZandt filed suit when the parties could not resolve their differences. He plead a trespass to try title action and alternatively alleged adverse possession under the three, five, ten and twenty-five-year statutes of limitation. He sought title and possession of the disputed property, $200 in damages, and attorney fees. Appellees answered with a plea of “not guilty”. Prior to trial Appellees demanded that VanZandt produce an abstract of title under Rule 791 of the Texas Rules of Civil Procedure. Prior to trial VanZandt furnished Appellees with a list of instruments on which he relied for title, but the list was not filed within twenty days after notice of demand as required by Rule 792.

VanZandt, who testified on his own behalf, also called Dorothy McKelvy Homes and Theo Darnell, Appellees’ neighbor, as witnesses. VanZandt and the other witnesses generally disagreed on the location of the boundary line, on whether the utility poles had been erected on the boundary line, on whether the chain-link fence, as originally constructed by Roger McKelvy, had established the boundary line by agreement, and on whether Roger McKelvy had maintained the disputed property as his own. When VanZandt rested, Appellees moved to dismiss his suit on the ground that VanZandt had not shown evidence of title as required in a trespass to try title action, and this motion was purportedly granted.

On June 18, 1984, the court signed a judgment titled “Judgment of Dismissal”. The judgment is conflicting because it purports to dismiss VanZandt’s suit with prejudice and also decrees a take-nothing judgment against him on the merits. See City of Abilene v. Fryar, 143 S.W.2d 654, 656 (Tex.Civ.App.—Eastland 1940, no writ). When a plaintiff rests before establishing a cause of action, the appropriate defensive response is a motion for instructed verdict rather than a motion for dismissal. R. McDonald, Texas Civil Practice § 17.17 (1984). In Texas an involuntary dismissal of the plaintiff’s action is generally limited to instances where the suit is dismissed upon sustaining of a plea in abatement or a special exception without a curative amendment or where the suit is dismissed because the action has become moot. Id. Involuntary dismissal is also appropriate for lack of prosecution and for lack of jurisdiction. Id. Because it was inappropriate under the circumstances to dismiss VanZandt’s suit, we construe the judgment to be a take-nothing judgment.

In his first point, VanZandt contends that the court erred when it granted the equivalent of an instructed verdict in favor of Appellees because the evidence had raised material fact issues. Appellees argue that the court did not enter an instructed verdict. They point out that the case was tried without a jury, that the court was the fact-finder, and that the court could resolve any disputed fact issues against VanZandt after he had presented his case. This argument is without merit.

Where the court enters judgment for a defendant in a non-jury proceeding at the conclusion of the plaintiff’s case-in-chief and before the defendant has rested, the court’s action is equivalent to entering an instructed verdict in a jury trial, and it must be reviewed on appeal as an instructed verdict. See Plumb v. Stuessy, 617 S.W.2d 667 (Tex.1981) (holding that the court erred when it granted an instructed verdict for the defendant after the plaintiff had rested in a non-jury proceeding); see also Rhinetubes, Inc. v. Norddeutscher Lloyd, 335 S.W.2d 269 (Tex.Civ.App.—Houston 1960, writ ref’d n.r.e.). In reviewing a take-nothing judgment as an instructed verdict, the evidence must be viewed in the light most favorable to the non-movant, and every reasonable inference arising from the evidence must be indulged against the movant. Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953). Furthermore, an instructed verdict is improper if the evidence raises material fact issues. Air Conditioning v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422, 425 (1952). The crucial question to be determined, therefore, is whether material fact issues existed when the court entered judgment against VanZandt. Having reviewed the evidence under the appropriate standard, we hold that material fact questions existed concerning the location of the boundary line on the ground and whether the boundary had been established by an agreement of the parties.

As previously noted, Appellees moved to dismiss VanZandt’s suit because he had failed to show title to the disputed property. The court purported- to grant this motion. After judgment was entered, the court filed conclusions of law, which included the following:

I. [VanZandt] did not comply with the Texas Rules of Civil Procedure in connection with the furnishing of an abstract in writing, and [VanZandt] has shown no title to the property in dispute.
II. [VanZandt] has failed to establish a cause of action against [Appellees] upon which [VanZandt] could recover a judgment against [Appellees].

The court thus apparently entered judgment against VanZandt because he had not proven title as required in a formal trespass to try title proceeding. Although VanZandt’s pleadings are cast in the form of a trespass to try title claim, the crux of the parties’ disagreement is over the location of a boundary line between their properties. The test to determine whether a trespass to try title suit is really a boundary dispute is: if there would have been no case but for the question of boundary, then the case is necessarily a boundary suit even though it might involve questions of title. Plumb v. Stuessy, 617 S.W.2d at 669. VanZandt’s suit meets this test. Because this case is one of boundary, VanZandt was not required to establish a superior title to the disputed property in the manner required by a formal trespass to try title action. See id. at 669.

In any event, VanZandt was the common source of title because Appellees claimed title to the disputed property through a deed from VanZandt. Jones v. Parker, 193 S.W.2d 863, 865 (Tex.Civ.App.—Texarkana 1946, writ ref’d n.r.e.). VanZandt’s deed to Roger McKelvy, Appellees’ predecessor in title, was introduced into evidence, and VanZandt was therefore not required to introduce his deed into evidence to prove that he was the common source of title. See id. Furthermore, VanZandt’s failure to timely file an abstract of title under Rule 792 was nothing more than a technical, harmless error. See McCraw v. City of Dallas, 420 S.W.2d 793 (Tex.Civ.App.—Dallas 1967, writ ref’d n.r.e.).

Because material fact issues existed when the judgment was entered, point one is sustained, the judgment is reversed, and the cause is remanded for a new trial. We do not reach VanZandt’s remaining point of error.


author: HALL, Justice.

text:
    Robert DEANNE, Appellant, v. Janice M. DEANNE, Appellee.
    No. 10-84-170-CV.
    Court of Appeals of Texas, Waco.
    March 7, 1985.
    James A. Endicott, Jr., Killeen, for appellant.
    William B. Ray, Copperas Cove, for ap-pellee.
   HALL, Justice.

Appellant Robert Deanne brought this appeal from a no-answer default divorce decree in favor of his wife appellee Janice M. Deanne. The decree awarded appellee a divorce, divided the parties’ property, awarded custody of their two children to appellee, and ordered child support to be paid by appellant. At the time service of process was attempted against appellant, he was a member of the Army, stationed in Europe. The judgment recites that appellant received process by substituted service which the record shows was authorized by the trial court under the provisions of Rule 106 and 108, Vernon’s Tex.Rules Civ.Proc. However, the record shows without dispute that appellant never received such process and that at the trial appellee asserted and relied upon “actual notice” of the divorce suit by appellant as vesting jurisdiction in the court to hear the case. Appellant asserts that such actual notice was not sufficient to satisfy the service of process required by the rules, and we agree. Where a defendant has not been served in the manner required by law the court’s jurisdictional power to act in the. case, both in rem and in personam jurisdiction, is not invoked notwithstanding actual notice of the suit on the part of the defendant. This includes both the in rem and in personam aspects of a divorce action. Heth v. Heth, 661 S.W.2d 303, 304-5 (Tex.App.—Fort Worth 1983, writ dism.); Matter of Marriage of Peace, 631 S.W.2d 790, 794 (Tex.App.—Amarillo 1982, no writ).

Appellant’s first point of error is sustained. The judgment is reversed and this cause is remanded for trial.


author: DUGGAN, Justice.

text:
    The AETNA CASUALTY & SURETY COMPANY, Appellant, v. MARTIN SURGICAL SUPPLY COMPANY, Appellee.
    No. 01-84-00297-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 14, 1985.
    Rehearing Denied April 26, 1985.

      Reagan M. Brown, Fulbright & Jaworski, Houston, for appellant.
    Charity M. O’Connell, Edmund L. Cog-burn, Dow, Cogburn & Friedman, Houston, for appellee.
    Before DUGGAN, SMITH and KEITH (Retired, sitting by assignment), JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a judgment awarding treble damages and attorney’s fees as indemnity for expenses of litigation. Appellee incurred the expenses by providing its own defense when a defense as an additional insured was available from appellant under a policy of insurance. Appellee’s judgment was based on causes of actions under the Deceptive Trade Practices — Consumer Protection Act (“the DTPA”), Tex.Bus. & Com.Code Ann. sec. 17.41, et seq. (Vernon Supp.1985), and the Texas Insurance Code, Tex.Ins.Code Ann. art. 21.21 (Vernon 1981).

In an earlier suit filed in 1972, Gibson v. Henley, et al, (“the Gibson suit”), the ap-pellee, Martin Surgical Supply Company, was one of four defendants charged with manufacturing and/or selling an allegedly defective drug, Gomenol, to the defendant physician, Dr. Henley. In its answer filed in the Gibson suit, Martin claimed it purchased the drug from Myers-Carter Lab, Inc., a subsidiary of Chromalloy American Corporation. Unknown to Martin, Chro-malloy and Myers-Carter were insured by the appellant, Aetna Casualty & Surety Company, under a policy of insurance containing a broad form vendor’s endorsement which covered as an additional insured any company that distributed or sold Myers-Carter products.

In the Gibson suit, Aetna provided a defense under Chromalloy’s policy to Myers-Carter only, and Martin hired its own legal counsel. Although Aetna knew that Martin was a customer of Myers-Carter, Myers-Carter informed Aetna that Martin purchased Gomenol from various companies. In early 1975, Martin filed a cross-action in the Gibson suit against Myers-Carter for indemnity for any liability and expenses incurred from Martin’s sale of Gom-enol purchased from Myers-Carter. In June and in November of 1975, Myers-Carter’s attorney requested Martin’s attorney to produce any invoices showing that Myers-Carter manufactured the Gomenol sold by Martin to Dr. Henley. Martin’s attorney did not respond until June 11, 1976, one day after the conclusion of the Gibson suit.

Martin’s attorney thereafter made a written demand on Aetna for reimbursement of Martin’s legal expenses under the Aetna policy’s vendor’s endorsement. Aetna denied Martin’s claim on the grounds that Martin did not timely request coverage and voluntarily incurred its legal expense. On a non-waiver agreement, Aetna thereafter represented Martin and Myers-Carter in the appeal of the case.

Martin filed the present suit against Aet-na in July of 1978, alleging a cause of action for breach of the Aetna-Chromalloy insurance contract. By an amended petition filed in August of 1983, some five years later, Martin added causes of action asserting (1) violation of the DTPA, (2) violation of art. 21.21 of the Texas Insurance Code, and (3) fraudulent misrepresentation.

Upon jury trial, the special issues based on Martin’s theories of fraud, DTPA, and art. 21.21 causes of action were answered in Martin’s favor. The issues submitting Martin’s initial theory of breach of contract were answered in Aetna’s favor, but were disregarded by the trial court when it entered judgment following the hearing on both parties’ motions for judgment. The jury answered the fraudulent concealment issue in Martin’s favor, but found that the concealment was not made willfully, such that no exemplary damages were awarded. Based on the DTPA and the Insurance Code art. 21.21 causes of action, the court entered judgment for Martin for actual damages of $9,190.41, which was trebled, and for attorney’s fees.

Aetna urges nineteen points of error on appeal, and Martin urges two conditional cross-points.

Aetna’s first point of error asserts that the trial court erred in rendering judgment based on jury answers to special issues asserting Martin’s DTPA cause of action. In four sub-points, Aetna urges as a matter of law (1) that Martin is not a “consumer” under the DTPA; (2) that if Martin is a “consumer,” it is not a consumer of goods, but of services for business or commercial use, an area specifically excluded from the applicable 1973 and 1975 versions of the DTPA; (3) that Aetna’s failure to provide insurance coverage is not actionable under the DTPA; and, (4) that Aetna’s failure to disclose the possibility of insurance coverage to Martin is not actionable under the DTPA.

In order to maintain a cause of action under the DTPA, a plaintiff must be a “consumer”, defined in sec. 17.45(4) of the Act as “an individual who seeks or acquires by purchase or lease, any goods or services.” Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 172 (Tex.1980). To qualify as a consumer, at least two requirements must be met: (1) the party seeking relief must have sought or acquired goods or services by purchase or lease; and, (2) the goods or services purchased or leased must form the basis of the complaint. Flenniken v. Longview Bank and Trust Co., 661 S.W.2d 705, 707 (Tex.1983); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.1981).

Aetna contends that Martin cannot be a “consumer” because it was not a party to Aetna’s original contract of insurance with Chromalloy; that any rights Martin may have under that policy are those of a third-party beneficiary; and that a third-party beneficiary to an insurance contract is not a “consumer” under the DTPA as a matter of law. The language Aetna cites as authority for this contention, from Hi-Line Electric Company v. Travelers Insurance Companies, 587 S.W.2d 488 (Tex.Civ.App.—Dallas), writ ref'd n.r.e. per curiam, 593 S.W.2d 953 (Tex.1980), was specifically disapproved by the Texas Supreme Court’s 1981 opinion in Cameron v. Terrell & Garrett, Inc., supra, which held that “a person need not seek or acquire goods or services furnished by the [defendant] to be a consumer as defined in the DTPA.” Id. at 541.

A plaintiff is not required to prove a contractual relationship with the defendant to establish his standing as a consumer. Flenniken at 707. A third-party beneficiary of an insurance contract can be a consumer under the DTPA, provided he shows he purchased goods (Gomenol, the Myers-Carter manufactured drug, here) or services which were the basis of his complaint. Cameron at 541. We therefore conclude that appellee was a “consumer” in the transaction by virtue of its purchase of the drug.

Aetna next argues that even if Martin is a consumer under the DTPA, it is not a consumer of “goods” when it seeks the benefits of appellant’s insurance coverage. Rather, Aetna argues, Martin is a consumer of services for business or commercial use, an area specifically excluded from the applicable version of the Act. Aetna urges that all of Martin’s claims concern acts or omissions allegedly committed by Aetna before June of 1976, such that the 1973 and 1975 versions of the DTPA thereby apply. Pennington v. Singleton, 606 S.W.2d 682, 685 n.1 (Tex.1980). Section 17.45(2) of the Act, under both the 1973 and 1975 versions, reads:

“Services” means work, labor, or service purchased or leased for use, for other than business or commercial use, including services furnished in connection with the sale or repair of goods. (Emphasis added).

Thus, Aetna argues, one who seeks to acquire services for business or commercial use, such as the insurance protection here available to Martin from Aetna, is not a “consumer” under either the 1973 or 1975 versions of the Act.

Aetna points out that an insurance policy is covered by the definition of “services” in sec. 17.45(2) of the DTPA, Dairyland County Mutual Ins. Co. v. Harrison, 578 S.W.2d 186, 190 (Tex.Civ.App.—Houston [14th Dist.] 1979, no writ), and that an insurance policy that insures a business is a commercial service and was expressly excluded under the 1973 and 1975 versions of the DTPA. Bennett v. Imperial Insurance Co., 606 S.W.2d 7, 12 (Tex.Civ.App.—Dallas 1980, writ ref’d n.r.e.).

We disagree with this analysis. Martin’s relationship to Aetna occurred in the context of Martin’s purchase of goods from Myers-Carter. Martin’s purchase of the drugs established its status as a consumer to the entire transaction wherein Martin became a covered insured under Aetna’s policy protecting Myers-Carter and the vendors of its products. As one involved in a transaction in goods, Martin was a “consumer” under the Act as to all persons who sought to enjoy the benefits of that transaction, and is entitled to relief under the DTPA against anyone who

... in the context of a transaction in goods, ... engages in an unconscionable course of action which adversely affects a consumer....

Flenniken, 661 S.W.2d at 707. As in Flenniken, the DTPA applies here although there is no contractual relationship between Martin and Aetna, and the conduct complained of occurred after Myers-Carter’s sale of goods to Martin.

By its post-submission brief, Aetna additionally urges that Martin’s purchase of the Gomenol in question was not a purchase of “goods” under the 1973 or 1975 versions of the DTPA. Under Sec. 17.45(1) of the 1973 Act, “goods” was defined to mean “tangible chattels bought for use.” By a 1975 amendment, “goods” was expanded to mean “tangible chattels or real property purchased or leased for use.” No statutory language of restriction or limitation on the word “use” has ever appeared in any version of the Act’s definition of “goods.”

Aetna urges that Ratcliff v. Trenholm, 596 S.W.2d 645 (Tex.Civ.App.—Tyler 1980, writ ref'd n.r.e.), is authority that the purchase of tangible chattels or real estate for resale is not a purchase of goods for “use” under the 1973 and 1975 versions of the Act.

Aetna argues that when the Texas Supreme Court held in Big H Auto Auction, Inc. v. Saenz Motors, 665 S.W.2d 756 (Tex.1984) that a purchase of tangible goods for resale after 1977 constituted a “use” under the DTPA, such that a buyer of the goods was a “consumer” within the Act, the court did not disapprove but merely distinguished Ratcliff, noting that it was decided under the 1975 Act.

We disagree with appellant’s contention that Big H Auto Auction was not a criticism of Ratcliff v. Trenholm. The opinion pointed out that the term “use” (as an element of the definition of “goods” in sec. 17.45[1]) has been unchanged and unrestricted since the Act’s 1973 inception, and that the Legislature has consistently rejected attempts to limit the term “use.” In 1973, the Legislature deleted from the initial draft of the Act the words “primarily for personal, family, or household purposes” following “use.” In 1975, the Legislature rejected an amendment to add “final” before “use.” In concluding that goods bought for resale are covered by the DTPA, Justice Campbell noted that “[t]o limit ‘use’ would be contrary to the statutory mandate of sec. 17.44 on [liberal] construction and application of the Act.” 665 S.W.2d at 758.

In Rotello v. Ring Around Products, Inc., 614 S.W.2d 455 (Tex.Civ.App.—Houston [14th] 1981, writ ref’d n.r.e.), the court held that under the 1973 version of the DTPA, the purchase of seed for use in a commercial farming operation was a purchase of goods and the purchasers were consumers under the Act. Chief Justice Brown wrote:

Ring Around also urges that the definition of “services” [under the 1973 version of sec. 17.45(a) ] excludes those rendered for commercial or business use and the definition of goods [under sec. 17.-45(1)] should be similarly limited. The use of limiting language in one definition, and its exclusion in another, does not evidence an intent to limit both definitions. To the contrary, it evidences an intent to limit one and not the other. The Act will be applied as written.

614 S.W.2d at 459. We conclude that the 1977 amendments to the definition of “services” in sec. 17.45(2) did nothing to change the earlier unrestricted meaning of the term “use” within the definition of goods in sec. 17.45(1). Accordingly, the 1973 and 1975 versions of “goods” should be interpreted to include goods for resale.

By its third subpoint, Aetna urges that its undisputed failure to provide insurance coverage is not actionable under the DTPA. The jury found Aetna’s failure to provide coverage to be “an unconscionable action or course of action” (Special Issue No. 1), and a producing cause of financial loss to Martin (Special Issue No. 3).

Aetna asserts as an assumption, without explanation or authority, that “[t]he failure to provide insurance coverage is simply a denial of coverage.” We disagree. Aetna’s conduct in question was not a denial of coverage but a concealment from Martin, or a failure to disclose (as is treated in its next subpoint) the material facts that Myers-Carter had contracted with Aetna for comprehensive general liability insurance coverage which entitled Martin to protection as an additional insured under Myers-Carter’s broad form endorsement.

In further special issue answers, the jury found that Aetna failed to disclose to Martin that insurance coverage was available to it (Special Issue No. 5); that Aetna’s failure to disclose was a “false, misleading, or deceptive act or practice” (Special Issue No. 6); and that such failure to disclose was a producing cause of financial loss to Martin (Special Issue No. 7).

In connection with the foregoing issues and answers, Aetna urges that its failure to disclose the availability of insurance coverage was not actionable under the DTPA prior to the Act’s 1979 amendment. In argument, Aetna asserts that Section 17.-46(a) of the DTPA does not apply to an insurance company’s failure to disclose the possibility of coverage “to a potential additional insured.” In the case before us, insurance coverage was not merely available to Martin as a “potential” insured, but actually existent as a right to be claimed in the form of Myers-Carter’s broad form endorsement that included Martin as an additional insured.

Aetna urges that sec. 17.46(b) was not amended until 1979 to add subdivision 23, which now gives consumers a specific cause of action for the failure to disclose information concerning goods or services. Because the alleged failure to disclose occurred prior to June of 1976, and subdivision 23 does not apply retroactively, Aetna contends that Martin cannot maintain an action under sec. 17.46(b)(23), citing Ozuna v. Delaney Realty, Inc., 600 S.W.2d 780, 782 n.3 (Tex.1980). Aetna acknowledges that the Texas Supreme Court concluded in Robinson v. Preston Chrysler-Plymouth, Inc., 633 S.W.2d 500, 502 n. 1 (Tex.1982), that sec. 17.46(a) of the DTPA provided a cause of action for a “failure to disclose” prior to the 1979 addition of subsection 23. However, Aetna asserts that the narrow purpose of sec. 17.46(a) “was to guarantee to the consumer the greatest possible knowledge about any potential undesirable features of a product,” quoting Sam Montgomery Oldsmobile Co. v. Johnson, 624 S.W.2d 237, 240-41 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ). Thus, Aetna urges, the rationale behind the passage of sec. 17.46(a) is not applicable to the facts of this case. Such a restricted applicability of the section is contrary to the Act’s mandate that its provisions be liberally interpreted for the protection of consumers. We reject each of appellant’s four subpoints and overrule the first point of error.

Aetna’s second point of error asserts that the trial court erred in rendering judgment for Martin on the jury’s answers to the special issues based on art. 21.21 of the Texas Insurance Code because Martin cannot maintain such a cause of action as a matter of law.

Martin’s cause of action under art. 21.21, sec. 16(a) was an alternative pleading to its DTPA action. In essence, art. 21.21, sec. 16(a) does nothing more than apply the DTPA to all insurance companies except county mutuals. Art. 17.22, Tex.Ins.Code (Vernon 1981); Mobile County Mutual Insurance Co. v. Jewell, 555 S.W.2d 903, 909 (Tex.Civ.App.—El Paso), writ ref'd n.r.e. per curiam, 566 S.W.2d 295 (Tex.1978).

Section 16(a) of art. 21.21 states that:

Any person who has been injured by another’s engaging in any of the practices declared in Section 4 of this Article or in rules or regulations lawfully adopted by the Board under this Article to be unfair methods of competition and unfair and deceptive acts or practices in the business of insurance or in any practice defined by Section 17.46 of the Business & Commerce Code, as amended, as an unlawful deceptive trade practice may maintain an action against the company or companies engaging in such acts or practices. (Emphasis added).

Section 17.46(a) of the DTPA states that “[f]alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce are ... unlawful.” Section 17.-46(b), commonly called the “laundry list”, states that “the term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:” and proceeds to list numerous actionable practices. (Emphasis added).

Appellant contends that because sec. 17.-46(b)(23), with its specific cause of action for failure to disclose information concerning goods and services, was not in effect at the relevant times in this case, appellee cannot rely on the general language of sec. 17.46(a) to maintain a cause of action for failure to disclose, citing Mobile County Mutual Insurance Co. v. Jewell, supra. In Jewell, the El Paso Court of Civil Appeals held that a cause of action under art. 21.21, sec. 16 is limited to acts or practices “defined” by sec. 17.46 of the DTPA, and because sec. 17.46(b) is the only part of the Act that furnishes definitions, a plaintiff must find its cause of action within that list. Id. at 911. However, by its own language, sec. 17.46(b) states that the “laundry list” is not all inclusive, and sec. 17.44 provides that the Act “shall be liberally construed and applied to promote its underlying purposes, ... to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty .... ” Pennington v. Singleton, 606 S.W.2d 682, 686 (Tex.1980). To limit a consumer to a cause of action based only on those practices specifically enumerated would defeat the legislative intent of the Act. Furthermore, Jewell was prior to Robinson v. Preston Chrysler-Plymouth, Inc., supra, wherein the Texas Supreme Court concluded from the legislative history of sec. 17.-46(b)(23) that a “failure to disclose” cause of action was already covered by the then existing sec. 17.46(a). Appellant’s second point of error is overruled.

Aetna’s points of error three, four, five, and six all assert that the court erred in failing to render judgment for Aetna based on answers to four special issues that submitted Aetna’s defense to Martin’s breach of contract cause of action. By answers to these special issues the jury found that (1) Martin did not give reasonable notice to Aetna of its demand for coverage under the policy (Special Issue No. 13); (2) Martin did not immediately forward to Aetna every demand, notice, summons or other process received by Martin in the Gibson suit (Special Issue No. 15); (3) Martin voluntarily made payments, assumed the obligation of its defense, and incurred attorney’s fees in the Gibson suit (Special Issue No. 16); and, (4) Martin or its attorneys failed to exercise reasonable diligence in determining whether it was covered by a policy of insurance issued by Aetna (Special Issue No. 17). The trial court disregarded these answers by implication when it rendered judgment for Martin on its DTPA and art. 21.21 causes of action.

Appellant urges that if we determine that Martin cannot recover under its DTPA or art. 21.21 causes of action, we should reverse and render judgment in its favor based on these answers. Our rulings upholding Martin’s causes of action under those theories in points of error one and two effectively reject this alternative. Aet-na’s points of error three through six are overruled.

By its first counterpoint, Martin asserts that if its DTPA or art. 21.21 relief is disallowed, then it is entitled to judgment for breach of contract as a matter of law because the jury’s findings reflect an erroneous theory of law, and are either irrelevant or unsupported by the evidence. We disagree.

Martin asserts that it had no duty to comply with the notice provisions of the Aetna policy until it had actual knowledge of the available coverage, citing Allstate Insurance Co. v. Darter, 361 S.W.2d 254, 255 (Tex.Civ.App.—Fort Worth 1962, no writ), which quoted Appleman, Insurance Law and Practice, Vol. 8, sec. 4745 in stating:

An insured’s lack of knowledge ... excused a delay in giving notice, as a matter of law, where he was not guilty of a lack of due diligence. (Emphasis added).

Such is not the situation before us.

The jury found by its answer to Special Issue No. 17 that Martin or its attorneys failed to exercise reasonable diligence in determining whether Martin was covered by a policy of insurance issued by Aetna. The evidence showed that in June and November of 1975, the attorney for Myers-Carter requested Martin’s attorney to locate any invoices showing that Martin had purchased the drug in question from Myers-Carter. Appellee’s attorney did not respond to this request until June 11, 1976, one day after the conclusion of the Gibson suit.

This evidence and jury finding of lack of due diligence on Martin’s part, coupled with Martin’s failure to comply with the policy’s notice provision, relieved Aetna from liability for breach of contract under the policy. Martin’s first counterpoint is overruled.

Aetna’s seventh point of error urges that the trial court erred in rendering judgment for Martin for attorney’s fees based on the jury’s answers to the three subparts of Special Issue No. 14, because Martin does not have a cause of action against Aetna for attorney’s fees as a matter of law. It is true that the jury’s answers adverse to Martin on the four breach of contract issues bar recovery on that basis, and Martin thus has no right to recover attorney’s fees under Tex.Rev.Civ. Stat.Ann. art. 2226 (Vernon Supp.1984). However, Martin did recover under both its DTPA and art. 21.21 Insurance Code claims, and each of these Acts provides for recovery of attorney’s fees. The court therefore did not err in rendering judgment based on answers to Special Issue 14. See Kish v. Van Note, 692 S.W.2d 463 (1985). Appellant’s seventh point of error is overruled.

By its points of error eight and nine, Aetna asserts that the jury’s answers to Special Issues No. 18 and 19 are contrary to “all the evidence or the great weight and preponderance of the evidence.”

Special Issues No. 18 and 19 directed the jury to find the last day for which Martin incurred (1) damages, if any, from Aetna’s failure to disclose the possibility of insurance coverage, if any (conditioned on a finding in Special Issue No. 5 that Aetna failed to disclose to Martin that insurance coverage was available to it); and (2) attorney’s fees, in its defense of the Gibson suit. The jury’s answers to both of these questions was “6/16/78.” By answers to other special issues, the jury found that Martin’s damages were the amount of legal fees it reasonably incurred in defense of the Gibson suit, $9,190.41.

The trial in the Gibson case ended June 19, 1976 and Aetna denied Martin’s claim for coverage on June 23, 1976. Martin’s attorney informed Myers-Carter’s attorney by letter on June 25, 1976 that Martin’s attorney’s fees and expenses ' were $9,190.41, offered his time slips for examination, requested this information be forwarded to Myers-Carter, and asked to be advised of the type of coverage that Myers-Carter had available.

Almost two years later, on June 16,1978, Martin’s attorney wrote Myers-Carter’s attorney, stating “I have now been advised that [Martin] has paid off the total amount” of the $9,190 defense costs incurred “through trial, and not including any work done on the subsequent appeal ...,” and presented Martin’s claim to Aet-na for reimbursement for Martin’s defense costs. Martin then filed this suit on July 3, 1978.

Aetna contends that, contrary to the jury findings, the evidence shows that all of Aetna’s alleged acts or omissions were committed long prior to the trial of the Gibson case in June of 1976, and that all of Martin’s attorney’s fees and expenses had been incurred on or before June 25, 1976. While Martin’s suit against Aetna was filed in July of 1978, the amendment to assert Martin’s DTPA and Insurance Code art. 21.21 claims was not filed until August of 1983, at least seven years after Aetna’s most recent possible conduct and five years after Martin’s last attorney’s fees were incurred.

Aetna’s argument asserting the four and two-year statutes of limitation applicable to DTPA and Insurance Code Art. 21.21 actions, respectively, does not comport with the error raised by these two points of error. Nevertheless, we hold that Martin’s amendment of its pleadings to assert DTPA and Art. 21.21 Insurance Code actions allowably “relates back” to the time of filing of suit. The amended claims are not “wholly based on and [growing] out of a new, distinct or different transaction or occurrence” such as is proscribed by Tex.Rev.Civ.Stat.Ann. art. 5539b. Leonard v. Texaco, 422 S.W.2d 160, 163 (Tex.1967) (suit in tort for seismic operations damage allowed to be amended to allege contract to pay for damages). The “relation back” doctrine has been specifically allowed in DTPA claims. Providence Hospital v. Truly, 611 S.W.2d 127 (Tex.Civ.App.—Waco 1981, writ dism’d).

Martin’s suit was an action for indemnity for its expenses of litigation, and the right to indemnity does not arise until the loss indemnified against is either paid (as was here done by Martin) or suffered as a judgment. Pate v. Tellepsen Construction Co., 596 S.W.2d 548, 552 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r. e.). Martin’s attorney testified that “Mr. Koslin, I think, had paid our bill over a period of about two years and I think it was at that time that I made another or wrote another [June 16, 1978] letter to [Aetna’s attorney] asking for reimbursement on behalf of [Martin].” The letter of June 16, 1978 and counsel’s above testimony were the only evidence indicating the time Martin paid its legal fees, as contrasted with incurring them. No evidence appears in the record to the contrary. We hold that the testimony of counsel and the letter of June 16, 1978 are a sufficient basis to support the jury’s answers to Special Issues No. 18 and 19. Appellant’s eighth and ninth points of error are overruled.

Aetna’s tenth point of error contends that the trial court erred in rendering judgment for Martin on the jury’s answer to Special Issue No. 9 because that issue constitutes an impermissible comment on the weight of the evidence.

Special Issue No. 9 reads:

Do you find find [sic] from a preponderance of the evidence that knowing Plaintiff to be misled as to material facts concerning insurance coverage, Aetna intentionally kept Plaintiff misled by concealing material facts from Plaintiff, thereby causing Plaintiff to pay its own attorney’s fees, proximately causing financial loss to plaintiff? (Emphasis added).

Aetna properly and timely objected to the submission of this issue as worded on the grounds that it constituted a comment on the weight of the evidence and presumed issues of fact.

Rule 277, Tex.R.Civ.P., states that the “court’s charge shall not comment directly on the weight of the evidence,” but shall not be objectionable on the ground that it “incidentally” does so. A comment on the weight of the evidence occurs when the trial judge indicates an opinion as to the verity or accuracy of the facts in inquiry. McDonald Transit, Inc. v. Moore, 565 S.W.2d 43, 44-45 (Tex.1978).

We agree with Aetna that Special Issue No. 9 constitutes an impermissible comment on the weight of the evidence, and that the trial court erred in submitting the issue as worded. The issue was not predicated upon an affirmative finding as to any earlier issue. We disagree with Aetna’s argument that the issue assumes two disputed facts: (1) that Aetna knew Martin was misled as to material facts concerning insurance coverage; and (2) that Aetna concealed material facts from Martin. Instead, we construe the defective wording to be an effort to inquire about two fact issues, (1) and (2), but which erroneously assumes the existence of (1) and inquires about (2). See Cactus Drilling Co. v. Williams, 525 S.W.2d 902, 905 (Tex.Civ.App.—Amarillo 1975, writ ref'd n.r.e.).

Martin contends that this court approved the submission of a substantially identical special issue in Reed v. Israel National Oil Co., Ltd., 681 S.W.2d 228 (Tex.App.—Houston [1st Dist.] 1984). We disagree. Reed is distinguishable in that the facts there assumed were established by undisputed evidence, such that the terminology in question constituted at most an incidental, and not a direct, comment by the court on the weight of the evidence. In the present case, the evidence is disputed as to both of the matters in question.

However, contrary to the assertion of Aetna’s point of error, the trial court did not render judgment based on the jury’s answers to Special Issue No. 9, but impliedly disregarded it. While this issue submitted Martin’s common law theory of fraudulent concealment, the judgment specifically recited that it was rendered for the plaintiff, Martin, based on the DTPA and art. 21.21 of the Texas Insurance Code.

Our concern therefore turns to whether the erroneous comment of the issue was harmless, on the one hand, or so prejudicial that it “infected and destroyed the findings made on the other issues submitting different theories of recovery.” 3 R. McDonald, Texas Civil Practice, sec. 12.03.2 (1983).

Special Issue No. 9’s inquiry was the third act by Aetna inquired about. Two earlier groups of issues submitted questions related to (1) whether Aetna’s failure to provide coverage was “an unconscionable action or course of action,” as defined, (Special Issues No. 1, 3, and 4); and (2) whether Aetna failed to disclose to Martin that coverage was available, and if so, whether that failure to disclose was “a false, misleading or deceptive act or practice,” as defined (Special Issues No. 5, 6, 7, and 8). The instructions and definitions accompanying Special Issues No. 1 and No. 5 were each sufficient to make those issue groups self-contained units with no necessity to reference forward to the offending issue, which was positioned last. We conclude that the error in the comment was not harmful or prejudicial to earlier groups of issues submitting other theories of recovery. Aetna’s tenth point of error is overruled.

Martin’s first counterpoint asserts that, alternatively to the judgment under its DTPA and Art. 21.21 actions, it is entitled to judgment based on fraud and deceit as found under Special Issue No. 9. This special issue having been found to be improperly submitted, no judgment could be rendered on it. Martin’s first counterpoint is overruled.

By its points of error 11 through 19, Aetna urges that there is no evidence or insufficient evidence to support the jury’s answers to Special Issues No. 1, 3, 4, 5, 7, 8, 9, 12 and 13A.

In response to these two sets of issues, the jury found (1) that Aetna’s failure to provide Martin coverage under the vendor’s endorsement was “an unconscionable action or course of action” (defined as “an act or practice which takes advantage of another’s lack of knowledge to a grossly unfair degree”); (2) that Aetna failed to disclose that insurance coverage was available; and (3) that each of these failures was a producing cause of financial loss to Martin.

In reviewing a legal insufficiency or “no evidence” point, this court must examine only the evidence and inferences therefrom tending to support the jury’s findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Salazar v. Hill, 551 S.W.2d 518 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). In reviewing a factual insufficiency point, this court must examine the entire record to determine if there is any evidence of probative value to support the findings of the jury. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Aetna’s investigation file contained a handwritten memo dated July 26, 1972 which read:

... Gominal or Gomenal Martin Surgical
Vendor’s Edt?

A hand-drawn arrow points from “Martin Surgical” to “Gominal.” A copy of the vendor’s endorsement appears in the file within four pages of the memo. It can be inferred from the memo that Aetna was aware that Martin might be an additional insured because of its relation to the product, Gomenal.

A January 16, 1973 letter from the Houston attorney representing Aetna and its insured, Myers-Carter, addressed to Aetna, stated in pertinent part:

there ... was no indication ... that our insured may have manufactured the Gomenol sold by [Martin] until a phone call from Martin’s attorney ... in which he stated that this is his understanding ... (Emphasis added).

The same letter enclosed a summary of Dr. Henley’s deposition, including his testimony that he had obtained the Gomenol from Martin.

A January 16, 1973 letter from Aetna’s same attorney, addressed to Myers-Carter, stated:

I have-noted, however, in your correspondence that you mention [Martin] as one of your customers. Quite recently, its attorney remarked that you had produced the Gomenol also involved in this suit for Martin. (Emphasis added).

A Myers-Carter officer replied on February 5, 1973 to Aetna’s attorney representing it:

yes — we have supplied [Martin] with Gomenol. They have also purchased this product from other sources as well.

By a letter of January 4, 1974, the same attorney advised Aetna:

Mr. Smelley of Coastal [another defendant] inquired informally whether Aetna might provide a defense for Coastal, but no request or demand of any sort has been made by Coastal or [Martin], for whom Mr. Carter advises we were one of the manufacturers of its product under the brand name of Gomenol. (Emphasis added).

In January of 1975, Martin filed a cross-action against Myers-Carter, specifically seeking indemnity based on Martin’s purchase of Gomenol from Myers-Carter and Martin’s resulting status as one in the chain of distribution between manufacturer and user.

Martin’s attorney for trial of the Gibson case, Mr. John Golden, testified that a cross-action, such as the one he filed for Martin against Myers-Carter, constitutes a demand for coverage and “seeks indemnity which includes all costs of defense.” He testified that either he asked Mr. Martin Koslin, the president of Martin, or Mr. Kos-lin told him, that Myers-Carter had told him there was no insurance help available and that he, Golden, “was satisfied that inquiry had been made and negative response had been given ...” He further testified:

If I had been served with a cross-action as [Aetna’s attorney was served with Martin’s] I would have made an inquiry about the vendor’s broad form endorsement and I would have called the lawyer back.

The testimony continued:

Q: (By Aetna’s attorney): Mr. Golden, you will agree, in the years that you have been representing insurance companies, ... that the normal and customary practice, based on reasons stated in the policy ... is not to go out and tell people who already have a lawyer, well, you may have coverage and you may not. That is not the normal practice, that isn’t done in the industry of insurance, is it?
A: I disagree with you_if this cross-action was filed and there was a vendor’s coverage, [as the insurer’s attorney] I would have made an immediate inquiry if I had the knowledge, I would have called the lawyer and said we have got it. That is what you—
Q: That is assuming—
THE COURT: Let him finish.
AETNA’S ATTORNEY: I am sorry.
THE WITNESS: That is what you [the named insured] buy it for is to be service to your customer.
Q: (By Mr. Brown) Assuming of course that there is a demand, is that right?
A: I don’t know what else it [the cross-action] could be construed [to be].
Q: That is how you [interpret] it, right?
A: Yes, sir. It is a demand and notice and that is all I know to do. (Emphasis added).

The plaintiff’s fifth amended petition in the Gibson case, filed in February of 1975, contained an allegation that:

The aforesaid substances introduced and injected into Shannon Gibson’s body ... were manufactured and/or supplied and sold by the defendants [Martin] and Imperial Pharmaceutical Laboratories, Inc., a division of Myers-Carter Laboratories, Inc.

In connection with the issues on failure to disclose coverage, the above exhibits, testimony, and pleadings were a sufficient evidentiary basis for the jury to find that Aetna knew Martin’s involvement in the suit was due solely to its purchase of Gomenol from Myers-Carter, entitling Martin to coverage; that Aetna’s failure to provide coverage was, in the circumstances, intended to induce Martin to provide its own coverage at its own expense; and that Martin would not have done so if the fact of coverage had been disclosed. In connection with the issues on failure to provide coverage, such evidence was sufficient to show an unconscionable action or course of action in Aetna’s taking advantage of Martin’s lack of knowledge to a grossly unfair degree. Points of error 11 through 19 are overruled.

The judgment is affirmed.