author: HALL, Justice.

text:
    Randy Scott FRANK, Appellant, v. Sandra Louise Frank CORBETT, Appellee.
    No. 10-83-297-CV.
    Court of Appeals of Texas, Waco.
    March 15, 1984.
    Joe Alfred Izen, Jr., Afton J. Izen, Houston, for appellant.
    James R. Jenkins, Jenkins & Jenkins, P.C., Waxahachie, for appellee.
   HALL, Justice.

On July 14, 1983, appellee Sandra Louise Frank Corbett recovered a default judgment against appellant Randy Scott Frank for $12,500.00 actual damages plus $5,000.00 in punitive damages in her suit against appellant for one-half the proceeds of an insurance policy obtained by appellant on a house jointly owned by them. The judgment reflects on its face that it is a “no answer” default judgment, reciting that although served with citation appellant “did not file an answer and thus was in default.”

On appellant’s motion after perfection of this appeal, we granted appellant leave to file a supplemental transcript to bring forward an answer assertedly filed by him before the judgment was rendered because, if such answer was on file when the judgment was taken, it should have been included in the original transcript since it constituted a “live pleading upon which the trial was had” and its absence from the transcript cannot be charged against appellant. Rule 376, Vernon’s Tex.Rules Civ. Proe.; Gay v. City of Hillsboro, 545 S.W.2d 765, 766 (Tex.1977). The supplemental record, timely filed, shows without question that appellant’s original answer was filed with the clerk of the trial court on July 11, 1983. This answer contained a general denial, special denials, affirmative defenses, and a claim for affirmative relief. At the end of the answer a lined space was provided for the signature of appellant’s attorney over the attorney’s name, his State Bar of Texas identification number, address and telephone number, but neither appellant nor his attorney had signed the instrument.

Rule 245, Vernon’s Tex.Rules Civ. Proc., provides in part as follows: “The court may set contested cases on motion of any party, or on the court’s own motion, with reasonable notice of not less than 10 days to the parties, ...” A judgment rendered against a party in a contested case without the notice of setting required by this rule constitutes a denial of due process, the fundamental right of an opportunity to be heard, and the judgment is void. Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959); Morris v. Morris, 554 S.W.2d 792, 793 (Tex.Civ.App.-San Antonio, 1977, no writ).

In our case, with appellant’s answer on file, judgment was taken against appellant without notice of the trial setting required by Rule 245. The answer should have been signed by appellant or his attorney, Rules 45 and 57, Vernon’s Tex. Rules Civ.Proc., but this signing is only a formal requisite and the lack of it did not affect the efficacy of the answer as a contest of appellee’s suit. W. C. Turnbow Petroleum Corporation v. Fulton, 145 Tex. 56, 194 S.W.2d 256, 257 (1946). Similarly, the fact that the answer was not in the clerk’s case file when the judgment was taken, asserted by appellee in her brief, does not make the default judgment valid. Reitmeyer v. Charm Craft Publisher, 619 S.W.2d 441, 442 (Tex.Civ.App.-Waco 1981, no writ).

The judgment is reversed and this cause is remanded for trial.


source: Caselaw Access Project

author: McDONALD, Chief Justice.

license: Public Domain

text:
    Louis Phillip BARAJAS, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-063-CR.
    Court of Appeals of Texas, Waco.
    Sept. 20, 1984.
    Russell D. Hunt, Fulbright, Winniford, Bice & Marable, Waco, for appellant.
    Vic Feazell, Dist. Atty., Kenneth R. Bennett, Asst. Dist. Atty., Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Barajas from an order revoking his probation and sentencing him to 2 years in the Texas Department of Corrections and a fine of $400.

On June 16, 1983, appellant plead guilty to the offense of unauthorized use of a motor vehicle, and was assessed 2 years confinement in the Texas Department of Corrections and a $400 fine [plus payment of court costs, probation fees and restitution]. Appellant was placed on probation on June 15,1983. The State filed motion to revoke appellant’s probation on February 7, 1984, alleging 14 violations of the conditions of appellant’s probation.

After hearing the trial court revoked appellant’s probation.

Appellant appeals on 1 Ground of Error: “The trial court erred and abused its discretion in revoking the probation of appellant based on a finding that appellant had consumed alcoholic beverages and failed to pay monies due.”

The State alleged among other matters in its motion to revoke that appellant failed to totally avoid the use of alcoholic beverages.

At the revocation hearing appellant’s supervising probation officer testified that appellant reported on January 26, 1984, for his monthly visit and admitted to him that he had been drinking alcoholic beverages at a local club on January 20, 1984. The testimony came without objection and appellant offered no opposing testimony.

The trial court found (among other matters) appellant had failed to avoid consumption of alcoholic beverages and revoked his probation.

One ground for revocation if proven is sufficient to revoke probation. Jones v. State, Tex.Crim.App., 571 S.W.2d 191; Moore v. State, Tex.Crim.App., 605 S.W.2d 924; Herrera v. State, CA (Waco) NWH, 656 S.W.2d 148.

The condition that probationer totally abstain from the use of alcohol is a reasonable term of probation. Flores v. State, Tex.Crim.App., 513 S.W.2d 66; Morris v. State, CA (Beaumont) NWH, 658 S.W.2d 770.

An oral admission of a violation of probation terms, made by probationer to his probation officer is sufficient to revoke probation. Cunningham v. State, Tex.Crim.App., 488 S.W.2d 117.

Defendant’s ground is overruled.

AFFIRMED.


author: DIES, Chief Justice.

text:
    Ralph Paul NORDYKE, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-200 CR.
    Court of Appeals of Texas, Beaumont.
    Sept. 26, 1984.
    Rehearing Denied Oct. 10, 1984.

      Herbin J. Molbert, Port Arthur, for appellant.
    Stephen C. Howard, Asst. County Atty., Orange, for appellee.
   OPINION

DIES, Chief Justice.

A jury convicted appellant of driving while intoxicated, second offense, and the jury assessed punishment at five years in the Texas Department of Corrections, plus a fine of $5,000. Appeal has been perfected to this Court.

Appellant has a ground of error contending the prosecutor erred when he commented on the defendant’s failure to testify in the punishment phase of the trial. Hereafter follows the argument complained of:

“[PROSECUTOR]: I don’t believe that there is any reason to give his man mercy. You have heard [Defense Attorney] ask for mercy and I want to ask you now, he had his opportunity at the punishment phase of this trial to present evidence in front of you about the man’s attitude, about his life situation, reasons why you could have a basis to afford him mercy. He has not taken advantage of that. He has presented you no evidence.
“[DEFENSE ATTORNEY]: Your Honor, I’d like to object to that, his comment on failure to testify.
“THE COURT: Objection is sustained.
“[DEFENSE ATTORNEY]: And I ask the jury to disregard it.
“THE COURT: The jury is instructed to so disregard.
“[DEFENSE ATTORNEY]: And I ask for a mistrial.
“THE COURT: That is denied.
“[PROSECUTOR]: What I am trying to say is while the defendant has a right of silence which I do not intend to try to diminish in any respect, he has the right to present testimony just as the State has the right to present testimony—
“[DEFENSE ATTORNEY]: Your Honor, I’d like to object on the basis of his comment on failure to testify.
“[PROSECUTOR]: Your Honor, I am not attempting in any way to remark about Mr. Nordyke’s taking the stand or not taking the stand. I am talking about the proposition of the State to the defense, how they both have the right to present evidence at the punishment phase just as we have the right to present evidence at the guilt or innocence phase.”

The court again sustained the objection, charged the jury to disregard, but refused to grant a mistrial.

The State may not comment on the accused’s failure to testify. Myers v. State, 573 S.W.2d 19 (Tex.Crim.App.1978) and authorities cited therein; TEX. CONST art. I, sec. 10; TEX.CODE CRIM.PROC. ANN. art. 38.08 (Vernon 1979). Ordinarily an improper argument is cured by a court’s instruction to a jury to disregard. Stone v. State, 510 S.W.2d 612 (Tex.Crim.App.1974). But if the argument is inflammatory this may not be the case. See 26 TEX.JUR.3d Criminal Law secs. 3946 and 3947 (1983) and the authorities cited therein. Here the prosecutor’s argument was improper, and the State comes near admitting this in its brief. The fact that the prosecutor returned twice to the same argument, after the court first sustained an objection, transcends the general rule that a charge to the jury to disregard cures the improper argument, we believe. We therefore sustain this ground of error, reverse and remand this case for a new trial. It is unnecessary to address appellant’s other grounds of error.

Reversed and remanded.


author: BRADY, Justice.

text:
    Graciano M. LEAL, Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    No. 14125.
    Court of Appeals of Texas, Austin.
    Oct. 10, 1984.
    Rehearing Denied Jan. 9, 1985.
    Mickey J. Blanks, Temple, for appellant.
    Noley R. Bice, Jr., Waco, for appellee.
    Before PHILLIPS, C.J., and POWERS and BRADY, JJ.
   BRADY, Justice.

Appellant Leal brought suit to recover workers’ compensation benefits resulting from an injury sustained in a fall from a roof, at a time when he was assisting other workmen in his sole proprietorship, a carpentry enterprise. The parties stipulated the injury arose in the course and scope of appellant’s business. The extent and duration of his injuries were submitted to the jury, which found that appellant had total and permanent loss of use of his left foot and almost ten years of temporary total loss of use to the right foot, with fifty percent permanent loss of use thereafter. The trial court, however, held that appellant was not covered under the workers’ compensation insurance policy because he was the sole proprietor of the business, and not an employee; accordingly, the trial court entered a take-nothing judgment against the claimant. We will affirm the judgment.

Under the Texas Workers’ Compensation Act (Tex.Rev.Civ.Stat. art. 8306, et seq.), unless coverage is otherwise afforded under Tex.Rev.Civ.Stat. Ann. art. 8309, § la (Supp.1984), benefits in case of injury are extended only to employees. Texas Employers’ Ins. Ass’n v. Inge, 146 Tex. 347, 208 S.W.2d 867, 869-70 (1948); Shannon v. Western Indemnity Co., 257 S.W. 522, 523 (Tex.Comm.App.1924, jdgmt adopted). The act does not ordinarily furnish coverage to employers. With exceptions not relevant here, an “employee” is defined by the act as “every person in the service of another under any contract of hire, expressed or implied, oral or written....” (emphasis added) Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (1967). As applicable herein, in contrast, the term “employer” is defined by the act as a “person ... that makes contracts of hire.” Id.

In this case, there is no doubt that appellant Leal is a subscribing employer. The parties stipulated below that he was the “sole proprietor or owner of his own business” and at the time of his injuries he, as a subscriber in his own name, had a workers’ compensation policy, issued by appel-lee, covering two employees paid by him on an hourly basis. It was also stipulated that Leal was not included by endorsement to the policy as a sole proprietor covered under art. 8309, § la.

It is also plain, and we so hold, that as a sole proprietor and employer, absent an art. 8309, § la endorsement to the policy issued to him, Leal cannot prevail. Absent the endorsement, he must have satisfied, at the time of his injuries, the statutory definition of an “employee.” This he could not do, as a matter of law. With reference to the policy issued to him as subscriber, Leal could not possibly be “in the service of another under any contract of hire.” (emphasis added) As stated in Southern Surety Co. v. Inabnit, 119 Tex. 67, 24 S.W.2d 375, 377 (1930): “He could not be both employer and employee, as it takes two persons to make a contract of hire.” Leal could not, within the meaning of the Workers’ Compensation Act, contract with himself to confer “employee” status. See also Shannon v. Western Indemnity Co., supra at 523; Superior Insurance Co. v. Kling, 160 Tex. 155, 327 S.W.2d 422, 424 (1959); Powell v. Vigilant Ins. Co., 577 S.W.2d 364, 366 (Tex.Civ.App.1979, no writ).

The issue before us is not the same, as appellant contends, as presented in Harris v. Casualty Reciprocal Exchange, 632 S.W.2d 714 (Tex.1982). In Harris, despite the absence of an art. 8309, § la endorsement, the Supreme Court held that a corporate officer killed while working as a substitute in an employee position was afforded coverage under the act. In doing so, the court applied the “dual-capacity” doctrine, which refers to “persons who are hired to fill both executive and ‘employee’ positions_” (632 S.W.2d 718; emphasis in original) Under this doctrine, the court observed, if such persons

are injured while performing the latter type of activity, [they] fall squarely within the ‘employee’ definition in section 1 [of art. 8309] and are thereby covered by the provisions of the act without a specific endorsement. We adopt this construction because it is consistent with the general purpose of the workers’ compensation statute. In short, persons who are ‘employees’ as defined by the act should be allowed to recover employee benefits. [M]

Unlike appellant Leal in the present case, however, the deceased in Harris was at the time of his injuries engaged “in the service of another,” the subscribing corporation. It is the fact that he, although ordinarily a corporate officer, had been hired as a substitute employee by the subscribing corporation that afforded coverage under the act. In contrast, Leal could not, as to his own policy, be “in the service of another,” for “a sole proprietorship has a legal existence only in the identity of the sole proprietor.” Ideal Lease Service v. Amoco Production Co., 662 S.W.2d 951, 952 (Tex.1983). We therefore conclude that appellant may not rely upon Harris as controlling authority for his position.

Further, it is not consistent with the general purpose of the Workers’ Compensation Act to hold that a sole proprietor may recover as an “employee” of himself. It is conventional learning that the act was designed to avoid questions of employers’ liability to their employees at common law, in case of disabling injury or death, and to provide benefits to workers without the burden of proof of their employers’ negligence. If so, application of the act to allow recovery to Leal would be an anomaly, for it is quite obvious that at common law, Leal could not recover against himself.

We therefore agree with the trial court that a subscribing sole proprietor cannot be his own employee under the act. Accordingly, we hold that the act does not afford coverage to a subscribing sole proprietor for his injuries, although he is performing the duties of an ordinary worker at the time, absent a specific endorsement to his policy under art. 8309, § la.

The point of error is overruled and the judgment of the trial court is affirmed.

      . This section of art. 8309 provides:
      (a) Notwithstanding any other provision of this law, a subscriber may cover in its insurance contract a partner, a sole proprietor, or a corporate executive officer_ The insurance contract shall specifically include the partner, sole proprietor, or corporate executive officer; and the elected coverage shall continue while the policy is in effect and while the named individual is endorsed thereon by a subscriber.


text:
    MERRILL LYNCH, PIERCE, FENNER AND SMITH, Appellant, v. Abraham MAGHSOUDI and Prudential-Bache Securities, Inc., Appellees.
    No. 01-84-0153-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 11, 1984.

      Kelly J. Coghlan, Vinson & Elkins, Kenneth E. Johns, Jr., Vinson & Elkins, Houston, for appellant.
    Thomas T. Hutcheson, Andrew R. Har-vin, Hutcheseon & Grundy, Houston, for appellees.
    Before EVANS, C.J., WARREN, J., and KLINGEMAN, J. (Retired).
   OPINION

FRED V. KLINGEMAN, Associate Justice (Retired).

Merrill Lynch, Pierce, Fenner and Smith sued Abraham Maghsoudi and Prudential-Bache Securities, Inc., seeking damages and injunctive relief under theories of: (1) breach of contract, (2) illegal use of appellant’s trade secrets, (3) tortious interference with contractual and business relations, (4) unjust enrichment, and (5) conspiracy. Upon the defendant’s motion, the trial court entered an order staying trial proceedings, ordering arbitration, and denying Merrill Lynch’s request for injunctive relief. Merrill Lynch appeals these actions.

The defendant Maghsoudi was formerly employed by Merrill Lynch as an account executive. At the time he was hired, he signed a contract in which he agreed that, in the event of his termination, he would not remove the originals or copies of Merrill Lynch’s records and would not, for a period of one year thereafter, solicit its customers he had come to know while in its employ. The contract also contained the following provision relating to arbitration of disputes:

I agree that any controversy between myself and Merrill Lynch arising out of my employment, or the termination of my employment, with Merrill Lynch for any reason whatsoever shall be settled by arbitration at the request of either party in accordance with the Constitution and Rules of the New York Stock Exchange, then in effect.

Maghsoudi subsequently resigned from Merrill Lynch and began working for Prudential-Bache. Merrill Lynch’s petition alleges that Maghsoudi solicited its customers and removed its records in contravention of the employment contract and that these acts were done with the knowledge and encouragement of Prudential-Bache.

The trial court denied appellant’s requested relief and ordered the parties to proceed to arbitration on the basis of the Federal Arbitration Act, 9 U.S.C. (1976). Sections 3 and 4 of that Act provide:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.... The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

Merrill Lynch brings twelve points of error, making arguments that were recently urged and rejected in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. McCollum, 666 S.W.2d 604 (Tex.App.-Houston [14th Dist.] 1984, writ ref’d n.r.e.). These arguments were squarely presented to the Texas Supreme Court in Merrill Lynch’s application for writ of error, and that court refused to grant the writ, finding no reversible error. We thus are strongly inclined to follow the McCollum decision unless it may be distinguished. See Culver v. State, 85 S.W.2d 997 (Tex.Civ.App.-El Paso 1935, no writ).

On oral submission, Merrill Lynch argues that we should not follow the McCol-lum decision because it is still pending on motion for rehearing in the Texas Supreme Court. Merrill Lynch also argues that McCollum should be distinguished from the instant case because in McCollum, Merrill Lynch made only an “offer of proof”, and did not make a full presentation of evidence as it did in the case at bar. Thus, Merrill Lynch asserts that the Texas Supreme Court’s denial of its application in McCollum could have been predicated upon a finding that the record did not present an adequate evidentiary basis for a review of its points of error.

We disagree with this argument. Under section 3 of the Federal Arbitration Act, the trial court must determine whether the issues presented are “referable to arbitration under the agreement to arbitrate.” Absent some showing that the allegations of the suit have been cast in bad faith, this determination is properly made without conducting an evidentiary hearing. McCollum, 666 S.W.2d 604.

Merrill Lynch also asserts that important policy considerations require this court to refuse to follow the holding in McCollum. Principally, Merrill Lynch urges that the McCollum decision, and other authorities to the same effect, will have a disastrous impact on the enforceability of protective covenants, because they will create a void during the period pending arbitration in which the party seeking to enforce the agreement will be denied any effective relief. We have noted, particularly on oral argument, that the parties are in substantial disagreement about the time required to obtain arbitration under the Act and also about preventative remedies that are available during the period pending arbitration. These same policy considerations were presented in McCollum, and we find no reason to rule contrary to that decision.

The judgment of the trial court is affirmed.


text:
    Kenneth Ray ARDOIN, Appellant, v. The STATE of Texas, Appellee.
    No. 09-84-033 CR.
    Court of Appeals of Texas, Beaumont.
    Oct. 17, 1984.

      William G. Martin, Jr., Beaumont, for appellant.
    John R. DeWitt, Asst. Criminal Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

A jury found appellant guilty of “Delivery of Marihuana” of less than four ounces. After the defendant (appellant) pled “true” to an enhancement count, the jury assessed punishment at fifteen years in the Texas Department of Corrections. Appeal has been perfected to this Court.

Ground of Error Number 1: “The evidence presented to the jury by the State was insufficient to warrant a finding of Appellant guilty at the guilt-innocence stage of the trial.”

George Audilet, an officer with the Beaumont Police Department for nineteen years, was on surveillance of appellant’s residence on May 5, 1983. (He identified appellant in court.) He was working with two other officers, Collins and Cartwright. The witness saw Collins go into appellant’s house and emerge with “a baggie of marijuana”. (There was no objection as to the contents of the bag.) The witness initialed the bag and locked it up in the Police Department. The next day it went to the lab.

Officer Collins testified that he went to appellant’s house, asked for “Carey”, and purchased a bag of marijuana for $40; that he had been trained to recognize and had seen marijuana on many occasions; and that this was the substance appellant sold him that night.

Bill McClain, with the Regional Crime Laboratory, testified that part of his duties was to keep thier records and that the records of the laboratory tests indicated the substance sold Collins was “marijuana Cannabis Sativa L.”

While there were some conflicts in the State’s testimony, the evidence was certainly sufficient to support the finding by the jury of guilty. This ground of error is overruled.

Ground of Error Number 2: “The trial court committed fundamental and revers-able [sic] error in overruling Appellant's timely objection to the testimony of State Witness, Bill McClain, in the presence of the jury, from a laboratory submittal report when the evidence failed to show that this expert witness supervised the test which had been run by another chemist whose qualifications were not shown.”

The witness was custodian of the records of the Regional Crime Laboratory and testified that the entries in those records are made near or at the time of the transaction which they are describing. The tests described in the records involved in this case were conducted by chemist Dal-lari Gibbs. When the witness was asked what type tests were performed on the substance, the actual objection lodged by appellant was:

“We object to Mr. McClain testifying about any tests or results of tests unless he actually conducted them, Your Hon- or.”

This is not the same as appellant’s ground of error and, therefore, nothing is preserved for review. McIlveen v. State, 559 S.W.2d 815, 822 (Tex.Crim.App.1977). But, as usual, we address the ground of error in spite of the inadequacy of the objection. In Jones v. State, 611 S.W.2d 64, 65 (Tex.Crim.App.1980), the Court wrote:

“In addition, the custodian of the business records of a laboratory may testify as to test results under circumstances in compliance with Art. 3737e, V.A.C.S. ..."

This ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . A properly qualified expert may testify that other qualified experts under his supervision had performed the relevant tests. See, in addition to Jones v. State, supra, Kent v. State, 374 S.W.2d 671 (Tex.Crim.App.1963).


text:
    Sharon K. TRAHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 09-84-034 CR.
    Court of Appeals of Texas, Beaumont.
    Oct. 17, 1984.
    Rodney D. Conerly, Port Neehes, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury of injury to a child, and the jury assessed punishment at fifteen years confinement in the Texas Department of Corrections. Appeal has been perfected to this Court.

Ground of Error No. 1: “The Honorable Trial Court erred in failing to grant defendant’s motion for instructed verdict because the evidence was insufficient to circumstantially prove that the appellant was the actor who actually caused the injuries to the victim.”

Kathleen Conway of Jefferson County Child Welfare was called to St. Mary’s Hospital on June 20, 1983. There she talked to Dr. Diengst who had called the witness’ department. She also saw James Edward Morgan, eight months old, brought there by his mother, the appellant. The child had two “large thigh bruises”, and bruises on the right cheek and neck. The witness ascertained this was the third time in a short period when the child had been brought to the hospital. The June 20th admission lasted until June 30th, when the baby was released to his mother’s custody. Three days later he was brought to the Park Place hospital, unconscious, and immediately was flown by Life Plight to Herman Hospital in Houston. Appellant asked the witness if she would go to prison if her baby died. The baby stayed in Herman a month and was then released to a temporary managing conservatorship, which was achieved by court order. The baby was then placed in a foster home. The baby at the time of trial was sixteen months old, still could not walk, or sit without assistance.

Candace Collins, with Jefferson County Welfare, also observed the child at St. Mary’s Hospital. She testified, “He had bruises to the front, inner parts of both legs, the thigh area, and he had a bruise on the right side of his face and the right side of his neck.” He was unconscious most of the time, and his eyes were rolling back in his head. Three days after his release, the child was brought back to the hospital “sei-zuring” and “foaming at the mouth”, in a comatose state. He was then flown to Herman Hospital in Houston. The baby has insufficient muscle control to achieve a sitting position by himself. It was her belief that the child will probably have to be institutionalized for the rest of his life.

Dr. William David Goldie, an Assistant Professor with the University of Texas Medical School in Houston, a pediatric neurologist, saw the child when he was admitted to Herman Hospital. He was in “acute onset of coma” and seizure, with brain swelling, and hemorrhage into the eyes and brain, which was caused by trauma. The child was near death. Later testing showed “cortical blindness”. His problems were caused by “repeated types of injury to the brain”; “it was our final conclusion that this was a sign of external injury, external trauma imposed upon the child over a period of weeks to months.” He was “essentially blind”, with “arching ... of the muscles”. Dr. Goldie opined, “It was my contention and that of my colleague ... that this was indeed injuries consistent with child abuse.”

Paula Sedtal, with whom appellant and the child stayed several months in 1983, saw the bruises on the boy. Appellant explained their presence because “she [appellant] whipped him because she was scared he was in a seizure at one time and she didn’t know how to get him out of it.” The witness had seen appellant whip the baby with a leather belt when he was five or six months old. The witness also saw appellant hit the baby in the face.

Joseph Robinson, Paula Sedtal’s son, had seen appellant strike the baby. Once he heard appellant say, “[G]o ahead and choke, you little bastard,” because she didn’t want the child “in the first place.” On one occasion he saw appellant drop the baby on purpose, and shake the baby real hard, “like trying to break his neck or his arms.”

Elsie Marie Sonnier’s testimony was that she had seen appellant take the baby by the arm and “threw him up towards the headboard.”

“Direct evidence is evidence that, if believed, proves the existence of the fact in issue without inference or presumption. Indirect or circumstantial evidence, on the other hand, is proof of collateral facts and circumstances from which it may be concluded that the principal facts in issue existed.”

24 TEX.JUR.3d, Criminal Law sec. 3005, at 101 (1982).

It is not correct, in our opinion, as appellant argues, that the State’s case is entirely circumstantial. But, at any rate, facts in issue in a criminal case are not required to be established by direct evidence but may be shown by circumstantial proof. See Bailey v. State, 532 S.W.2d 316 (Tex.Crim.App.1975). “It [circumstantial evidence] is not to be rejected, though standing alone it might not justify a verdict.” 24 TEX.JUR.3d, Criminal Law sec. 3005, at 103 (1982). In addition, the facts need not exclude every hypothesis that the act was committed by someone other than the accused, “ ‘it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.’ ” Davis v. State, 630 S.W.2d 769, 771 (Tex.App.-Houston [1st Dist.] 1982, disc. rev. ref’d). Each case must be determined by its own facts and viewed in the light most favorable to the verdict. Ysasaga v. State, 444 S.W.2d 305, 308 (Tex.Crim.App.1969).

The facts in the ease at bar are far different from those in the recent case of Johnson v. State, 673 S.W.2d 190 (Tex.Crim.App.1984), or Reese v. State, 653 S.W.2d 550 (Tex.App.-Beaumont 1983, no writ). In both of these cited cases the proof merely shows that the appellant could have committed the act. In both cases the State failed to prove beyond a reasonable doubt that the appellant was the person who committed the crime.

We have tried to carefully summarize the State’s evidence in the case at bar. It does not support an inference other than the guilt of the appellant. See Girard v. State, 631 S.W.2d 162 (Tex.Crim.App.1982); Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983). The verdict of the jury was not based on speculation. Reese v. State, supra. This ground of error is overruled.

Appellant’s final ground of error urges error in the admission of Exhibit No. 1. This is a photograph of appellant with the child sitting in her lap. The child is said to have a cigarette in his mouth, which we accept as true; however, our reproduction of the photograph is far from clear. The exhibit certainly did not help appellant, but neither can we say it was inflammatory. At best, it is irrelevant. No harm is shown. This ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: DOYLE, Justice.

text:
    Don COSTA, D.D.S., Appellant, v. Freeda STORM, Appellee.
    No. 01-84-00310-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1984.
    Rehearing Denied Dec. 6, 1984.

      Kevin Dubose, Ryan & Marshall, Houston, for appellant.
    Mary Wimbish, Hollrah, Lange & Thoma, Houston, for appellee.
    Before DOYLE, BASS and BULLOCK, JJ.
   OPINION

DOYLE, Justice.

This is an appeal in a dental malpractice case. A jury found the appellant guilty of certain negligent acts and also found gross negligence, and awarded the total sum of $174,000 for actual and exemplary damages. By cross-assignment, appellee requests that this court assess a penalty against appellant for taking the appeal for purpose of delay, pursuant to Texas Rules of Civil Procedure 435 and 438.

This case was originally brought by ap-pellee against the estate of Dr. James R. Smith and the appellant herein. After the elose of evidence and immediately before jury argument, counsel for appellee and the Estate of Dr. Smith announced a compromise and settlement agreement, and ap-pellee agreed to a take nothing judgment as to Dr. Smith. The jury awarded appel-lee $49,000 in actual damages and $125,000 in exemplary damages as to appellant. The amount of actual damages was reduced by $6,000 by the court upon a motion by the appellant.

Appellee had been treated by Dr. Smith from 1967 until Dr. Smith died in 1981. In that year, appellee began seeing appellant. Dr. Smith had never disclosed to appellee her deteriorating mouth condition, although the condition began to manifest itself symptomatically just prior to Dr. Smith’s death.

Appellee alleged that appellant exacerbated her problems by pulling a tooth and removing crowns without her informed consent and without advice on what she might expect from this work. She also alleged that inadequate treatment and failure to refer work out on an abcess condition caused prolonged infection and excessive drainage. Appellant argues that appellee’s injuries were the results of a lifetime of poor dental hygiene and ineffective dentistry-

Of appellant’s twenty-three points of error, twenty are directed toward the sufficiency of the evidence to sustain the jury’s findings on negligence and gross negligence.

In weighing the sufficiency of the evidence, the evidence must do more than create suspicion and must be strong enough to warrant a reasonable belief of the existence of the fact being established. Freeman v. Chick, 252 S.W.2d 763, 765 (Tex.Civ.App.-Austin 1952, writ dism’d). The nature of the fact to be established and the character of proof available should be considered when weighing the sufficiency of the evidence. Id.

The first fact that appellee sought to establish was that appellant’s treatment kept the gum around her second molar in an infected condition for 8½ months, which resulted in physical pain and mental anguish. In points of error 1 through 4, appellant alleges insufficient evidence to support the jury’s findings of negligence and proximate cause in appellant’s treatment of this area and failure to refer appel-lee to a specialist.

Appellant’s dental experts provided the proof purporting to establish this fact. Appellant testified that appellee came to him with an infected tooth and infected gum; when she left his practice 8V2 months later, the gum was still infected and the tooth was probably infected. Dr. Markoff, the dentist appellee began to see when she left appellant’s practice, testified that both the gum and the bone, and not only the tooth, were infected. He further testified that she had a bad odor and a bad taste in her mouth. Dr. Markoff and Dr. Presswood, appellee’s experts and appellant’s expert, Dr. Bell, testified that appellant’s salt and soda treatment of this area was below community treatment standards.

Appellant argues that there was no need to refer appellee to a specialist, because the infection in this area was clearing up. The last time appellant treated appellee was on May 11,1982; she saw Dr. Markoff on May 18, 1982 and he testified that her gum had a great deal of infection present. All of the experts testified that where an infection is not improving, the prudent general dentist should refer the patient to a specialist. According to Dr. Markoff, chronic gum infection over a long period of time eats away the bone around the tooth.

There was also extensive testimony concerning the manner of fitting and applying a temporary upper acrylic splint and the failure to refer appellee to a specialist. This splint was used as a temporary replacement for crowns on Mrs. Storm’s six front teeth.

Again, we must look to the nature of the fact to be established and the character of the proof. The testifying dentists agreed that the temporary acrylic splint was unstable due to a lack of support from the underlying tooth structure. From the time the splint was cemented in her mouth until she left appellant’s care, appellee was left with very unstable dentistry for approximately 3V2 months. The dentists also agreed that a patient should not have been left in such an unstable condition even temporarily.

During this time, appellee had trouble speaking because she could not keep the splint in; she was unable to chew and eat and had to sustain herself on a soft diet; she curtailed her social and civic activities because she was not presentable with teeth falling out of her mouth and cement showing between the teeth.

On the point of failure to refer ap-pellee to another dentist for the splint, the only evidence is appellee’s testimony that Dr. Markoff made a new temporary splint that was servicable. Appellant offers the argument that his work made it possible for Dr. Markoff to accomplish the stabilization of the splint more quickly. This evidence does not, however, make the jury finding wrong and unjust, particularly when all testifying dentists agreed that a patient of reasonable sensibilities would be upset at being in such an unstable condition.

Appellant contends that there is no evidence in the record that it was negligent for him to extract appellee’s upper right molar. Appellant testified that he pulled this tooth because Mrs. Storm was in pain and the tooth was fractured. Mrs. Storm testified, however, that she was not in pain and that she went to see Dr. Costa to have him put her crown back on the tooth.

Using a “worst-case” hypothetical because he had not seen this particular tooth, Dr. Markoff testified that it would be below the standards of the ordinary reasonably prudent dentist not to try to save the tooth. Appellant’s expert, Dr. Bell, testified that because this was an anchor tooth, he would pull it only as a last resort, even with a fracture. As a result of this extraction, appellee cannot have new removable bridges and partíais and will have to have posts surgically implanted to anchor the dentistry.

Several of appellant’s points of error complain of insufficient evidence to support a finding of gross negligence in appellee’s treatment and its proximate cause of injuries to her. Appellant’s evidence amounted to simply going over each step of his treatment and offering reasons for each step. Appellee’s experts testified that to leave a patient in the condition of appellee for such extended periods indicated an entire want of care or regard for the health of a patient. Further, they testified, this type of lack of care is below community standards. Regarding proximate cause, any negligence that caused injuries, and that also constitutes gross negligence, would also be the cause of the same injuries.

Appellant also complains that there is no evidence, or insufficient evidence, to support the jury’s awards of damages for future pain and anguish, past dental expenses, future dental expenses, and disfigurement.

We find that there is some evidence for each fact challenged in the points of error concerning the above mentioned damages. Appellee was diagnosed as needing gingi-val skin grafts, a surgical post implant, and implant surgery, all of which represent future pain and anguish. Evidence of past dental expenses was introduced, which showed that appellee paid appellant $991 for work that had to be redone and replaced. On the matter of future dental expenses, appellee offered evidence which shows the need for surgical implants to have been caused directly by appellant’s work. Appellant complains that he did not disfigure appellee in any way. Appellant argues that the only disfigurement appel-lee had was the exposure of unattractive remnant teeth, which were the result of Dr. Smith’s work. For appellee, evidence of disfigurement was proved by her difficulty in communicating due to the loose splint and photographs of her with the dentistry falling out and teeth missing.

Expert and lay testimony was offered on each point. Where appellant alleges no evidence or insufficient evidence for an award for cosmetic impairment and makes no objection to the court’s charge, the record must reveal evidence on the issue of cosmetic impairment. Texas Farm Products Co. v. Leva, 535 S.W.2d 953, 958 (Tex.Civ.App.-Tyler 1976, no writ). There is evidence in the record that appellee experienced anxiety and embarrassment because she had to appear at functions in a way that was cosmetically unattractive.

Based on the testimony and the reasonable inferences from the facts in evidence, a finding that negligence was the proximate cause of injuries to appellee was justified. Appellee's direct testimony, in addition to that of expert witnesses, indicates that appellant’s treatment resulted in injuries beyond those caused by Dr. Smith. Miller & Miller Motor Freight Lines v. Hunt, 242 S.W.2d 919, 922 (Tex.Civ.App.-Amarillo 1951, no writ). Appellant’s points of error 1 through 20 are overruled.

Points of error 21 and 22 complain that the jury awards for damages were excessive. In point of error 21, appellant complains that the award for disfigurement is excessive. On this point, Texas Farm Products, supra, again provides guidance. In that case, the court found that the jury could properly award damages for cosmetic disfigurement where physical and mental pain and suffering, and past and future loss of earning capacity were covered in other issues. Id. at 959. Further, the burden of establishing that damages are excessive is on the party complaining, and the jury findings will be upheld if there is evidence to' sustain the award. Id. To negate the award, there must be some indication of bias or prejudice in the record. Union Bottling Co. v. McDaniel, 546 S.W.2d 876, 880 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ). The jury has wide discretion in fixing the amount of the award, and the appellate court is not to merely substitute its judgment for that of the jury. Id. In this case, appellant simply makes the statement of bias or prejudice, without offering evidence to prove the allegation. By point of error 22, appellant complains that the award for punitive damages is excessive. It is established law that exemplary damages must be reasonably proportioned to actual damages although there is no set rule on what is reasonable. Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981). Factors to consider in determining whether an award of exemplary damages is reasonable include (1) the nature of the wrong, (2) the character of the conduct involved, (3) the degree of culpability of the wrongdoer, (4) the situation and sensibilities of the parties concerned, and (5) the extent to which such conduct offends a public sense of justice and propriety. First Security Bank & Trust Co. v. Roach, 493 S.W.2d 612 (Tex.Civ.App.-Dallas 1973, writ ref’d n.r.e.).

All parties and witnesses readily acknowledged that Dr. Smith’s care of ap-pellee’s dental problems were a definite factor in the present poor condition of her mouth. She proved that appellant inflicted a wrong on her by prolonging the bad condition of her mouth and permitting further deterioration. Expert witnesses testified that allowing such conditions to exist over these periods of time is below community standards. Conduct of an ordinary reasonably prudent dentist is certainly the standard by which appellant’s conduct is to be measured. Further, there was testimony that appellee was not unreasonable in being upset by the length of time involved in clearing up her discomfort.

The rule regarding an exemplary damages award alleged to be excessive is expressed in Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex.Civ.App.-Fort Worth 1964, writ ref’d n.r.e.):

The question of the measure of exemplary damages comes under the general rule that, where the law furnishes no legal measure of damages and they are unliquidated, the amount to be awarded rests largely in the discretion of the jury; and unless the award is so large as to indicate that it is a result of passion, prejudice or corruption, or that the evidence has been disregarded, the verdict of the jury is conclusive and will not be set aside as excessive, either by the trial court or on appeal. Id. at 692.

On the requirement of reasonable proportionality, a ratio of the award of exemplary damages to actual damages of 3.3 to 1 was held to be not unreasonable in Bank of North America v. Bell, 493 S.W.2d 633 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ). Appellants herein are complaining of damages where the ratio is approximately 2.9 to 1. We overrule points of error 21 and 22.

Point of error 23 alleges reversible error due to improper jury argument. Appellant complains that the court allowed counsel for appellee to argue to the jury on pain and suffering and punitive damages in rebuttal when counsel failed to fully open by addressing these issues in his initial argument. Appellant cites T.R.C.P. 269 and Continental Bus System, Inc. v. Toombs, 325 S.W.2d 153 (Tex.Civ.App.-Ft. Worth 1959, writ ref d n.r.e.) as support for this argument.

Texas Rules of Civil Procedure 269(b) states that in the concluding argument, counsel is limited to replying to the counsel on the other side. This rule further states that counsel who opens must present his whole case. Continental Bus requires that the whole case be presented in the opening argument, but there is no error if the whole case is not fully discussed in the opening argument. Continental Bus, 325 S.W.2d at 163. This decision gives discretion to the trial judge to determine whether argument in a suit for damages has been fully opened as to damages. Id. Further, to complain of error on this question, the complaint must be that there was an abuse of judicial discretion. Id. There is no mention of abuse of judicial discretion in appellant’s point. Point of error 23 is overruled.

Appellee, in her counterpoint, argues that appellant has taken this appeal for reasons of delay and should be assessed a penalty pursuant to Tex.R.Civ.P. 435 and 438. There is no evidence in the record that the appeal is groundless, frivolous and for delay only. In order to impose a penalty, the record must show that appellant had no reasonable ground to believe the judgment would be reversed. Beago v. Ceres, 619 S.W.2d 293, 295 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ). It was reasonable for appellant to believe that the insufficiency of evidence points would be sustained. The appellee’s counterpoint is overruled.

The judgment of the trial court is affirmed.


author: CORNELIUS, Chief Justice.

text:
    Francis VANDEFIFER, Appellant, v. The STATE of Texas, Appellee.
    No. 6-84-004-CR.
    Court of Appeals of Texas, Texarkana.
    Oct. 23, 1984.

      Robert Underwood, Carthage, for appellant.
    John S. Walker, Dist. Atty., Center, Mike Parker, Asst. Dist. Atty., Carthage, for ap-pellee.
   CORNELIUS, Chief Justice.

Francis Vandefifer was convicted of aggravated sexual abuse and assessed punishment by the jury at twenty years confinement. He appeals on four grounds of error based on the trial court’s refusal to grant a new trial. We overrule all grounds and affirm the judgment.

Vandefifer first argues he should have been granted a new trial because he was prevented from using a peremptory challenge to excuse Juror Marilyn Zanolli Hart. Vandefifer was charged with sexually abusing John Henthorne, a thirteen-year-old boy. During voir dire of the jury panel, defense counsel asked if any of the panel knew John Henthorne. Defense counsel did not exhibit Henthorne to the panel and no one indicated they knew him. After Mrs. Hart was chosen and sworn as a juror, she saw Henthorne at a lunch break and realized she had seen him at the school where she taught. She did not know him personally and had no relationship with him, although she thought he might be in her son’s room at school. Mrs. Hart promptly reported these facts to the judge. On being questioned by the prosecutor and the judge she stated that her recognizing the boy would not affect her impartiality as a juror. Defense counsel declined to question her. Vandefifer contends he could have used a peremptory challenge had Mrs. Hart revealed she recognized Henthorne at voir dire and thus the court should have granted him a new trial.

We do not believe reversible error has been demonstrated. The effect of Mrs. Hart’s testimony was that she did not know John Henthorne by name but only by sight. If Yandefifer felt that such a tangential knowledge of the witness would prejudice his case, he should have exhibited the witness to the panel so their knowledge could be tested. Furthermore, Mrs. Hart did not know John Henthorne personally and had no relation with him. In these circumstances we cannot perceive that Vandefifer was harmed. See Anderson v. State, 633 S.W.2d 851 (Tex.Cr.App.1982); Drousche v. State, 651 S.W.2d 883 (Tex.App.-Austin 1983, pet. ref’d).

Vandefifer asserts that a new trial should have been granted because the jurors discussed the parole law and considered matters not in evidence when they discussed whether or not Panola County had a suitable controlled rehabilitation center for probationers. Juror Williams testified that the jurors discussed the parole law and that he voted for a larger sentence because of the discussion. His testimony, however, was inconsistent and several other jurors testified that the parole law was mentioned only generally and briefly and that they were admonished that they could not consider it.

To warrant a new trial, a discussion of the parole law must (1) involve a misstatement of the law, (2) which is asserted as a fact, (3) by one professing to know the law, (4) which is relied upon by the other jurors, (5) who for that reason changed their vote for a more severe punishment. Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984). In this case the evidence fails to establish the first four of the criteria and supports the trial court’s finding that misconduct requiring a new trial did not occur.

The jurors testified that they discussed whether or not Panola County or the adjoining counties had a community rehabilitation facility during the time they were considering whether to recommend probation. Vandefifer contends this was an improper receipt of evidence not admitted at the trial. The record reveals, however, that the jurors only questioned whether there was any such facility, since the court’s charge had mentioned it in connection with probation. As there was no evidence on the point and the court could only refer the jurors to the charge, the jurors had no information on the question. The burden of showing his eligibility for and the propriety of probation is on the defendant. Having failed to provide evidence on this issue, Vandefifer is in no position to complain. Additionally, the jury assessed punishment at twenty years confinement, so probation could not have been given in any event.

Vandefifer also contends error was committed when the State was allowed to prove in rebuttal that he had engaged in sexual conduct with his son, similar to the conduct alleged to have been engaged in with the complaining witness. We find the evidence was relevant and properly admitted. Vandefifer had testified and presented evidence that he was not a homosexual or a bisexual, was a loving father who loved children, that he was incapable of engaging in the conduct alleged against him, and that the entire charge was a “frame up” orchestrated by his wife. In these circumstances the similar extraneous acts were admissible as tending to rebut Vandefifer’s defensive theory and claim of a frame up. See McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Cravens v. State, 663 S.W.2d 668 (Tex.App.-Houston [1st Dist.] 1983, no pet.).

The judgment is affirmed.


author: McNicholas, justice.

text:
    Joseph HALL, Appellant, v. The STATE of Texas, Appellee.
    No. 09 83 163 CR.
    Court of Appeals of Texas, Beaumont.
    Oct. 24, 1984.
    James DeLee, Nederland, for appellant.
    John R. DeWitt, Asst. Criminal Dist. Atty., Beaumont, for appellee.
   OPINION

McNicholas, justice.

This is an appeal from a conviction for the offense of murder; punishment assessed by the jury was imprisonment for 15 years.

On or about March 5, 1982, Nancy Sims died from a gun shot wound allegedly inflicted by appellant while appellant was inside the deceased’s residence. The deceased was appellant’s former wife. Peter Bell, appellant’s brother-in-law, testified that he received a telephone call from appellant at 3:30 p.m. the day of the shooting, informing him that appellant had killed Nancy, the former wife. Police arrived at the scene within moments and found the body, a weapon, and the appellant, and took appellant into custody.

During the trial, the circumstances of the divorce were introduced. The appellant, testifying in his own behalf, stated that he did not remember shooting the deceased. A psychologist, called as an expert by appellant, testified that appellant suffered a repression, a normal reaction to this type of a traumatic situation, and that the repression would occur regardless of how the deceased was killed.

Appellant’s first ground of error is that the trial court erred in failing to charge on the lesser included offenses of involuntary manslaughter and criminally negligent homicide which though timely requested were refused.

The trial court did charge the jury, in addition to murder, on voluntary manslaughter and, at the request of the State, on accident. Based on the testimony referred to above, appellant contends that the evidence required the trial court to charge on the lesser included offenses.

TEX.PENAL CODE ANN sec. 19.-05(a)(1) (Vernon 1974) states that the offense of involuntary manslaughter is committed when a person recklessly causes the death of an individual. Recklessness is defined by the TEX.PENAL CODE ANN. sec. 6.03(c) (Vernon 1974) as:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

TEX.PENAL CODE ANN. sec. 19.07(a) (Vernon 1974) states that criminally negligent homicide is committed when a person causes the death of an individual by criminal negligence. Criminal negligence is defined by the TEX.PENAL CODE ANN. sec. 6.03(d) (Vernon 1974) as:

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. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

The test as to whether a charge on a lesser offense is required is two-fold: (1) the lesser included offense must be included within the proof necessary to establish the offense charged and (2) there must be some evidence in the record that if the defendant is guilty, he is not guilty of the alleged offense but is guilty only of the lesser offense. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981); Wilder v. State, 583 S.W.2d 349 (Tex.Crim.App.1979) vacated and remanded, 453 U.S. 902, 101 S.Ct. 3133, 69 L.Ed.2d 987 (1981). But, mere speculation, conjecture or surmise does not meet the test. There is no hard evidence to show the appellant would be guilty of only the lesser included offenses in appellant’s requested charge. This ground of error is overruled.

Appellant’s second ground of error is that the trial court erred in overruling appellant’s timely objection to improper argument of the State. The State’s argument at the punishment phase was to refer to a trip taken by the deceased to return her sister home, saying the sister had been staying with the deceased because of the appellant. The State went on to say the deceased was “afraid to be alone.” We do not find the argument extreme or manifestly improper or injecting new and harmful facts to constitute reversible error. Duffy v. State, 567 S.W.2d 197 (Tex.Crim.App.), cert. denied, 439 U.S. 991, 99 S.Ct. 593, 58 L.Ed.2d 666 (1978); Brown v. State, 535 S.W.2d 640 (Tex.Crim.App.1976); Mayberry v. State, 532 S.W.2d 80 (Tex.Crim.App.1975).

Appellant’s third ground of error is that the evidence was insufficient to sustain a conviction and cites as authority Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) which we do not find to be controlling.

In this case, there was evidence that appellant admitted killing the deceased and thus there is no question of circumstantial evidence. Daniels v. State, 600 S.W.2d 813 (Tex.Crim.App.1980). Appellant’s brief admits he was not entitled to a charge on circumstantial evidence. We find on a careful and thorough review of all the evidence that the jury could have found all the essential elements of the offense charged beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1988).

The judgment is

AFFIRMED.


text:
    Willie R. DUHR, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-270-CR.
    Court of Appeals of Texas, Waco.
    Oct. 25, 1984.
    David S. Barron, Barron & Barron, Bryan, for appellant.
    John C. Paschall, Dist. County Atty., Franklin, for appellee.
   HALL, Justice.

Pleading not guilty, appellant Willie R. Duhr was found guilty by a jury for the offense of fraudulent and deceptive acquisition of a controlled substance, diazepam, by altering the quantity of pills to be prescribed on a prescription for valium. The jury assessed punishment at confinement in the jail for 180 days and a fine of $1,000.00. We overrule appellant’s two grounds of error, and we affirm the judgment.

The evidence reflects that on April 27, 1983, Dr. Charles M. Fiore, a general practice physician, gave appellant a written prescription for twenty valium tablets with no authorization for refills. Appellant altered the prescription to provide for 40 tablets and four refills. The following morning appellant asked his mother, Natalie Duhr, to have the prescription filled and furnished her the money. Complying with this request, Mrs. Duhr took the prescription to Loyd’s Drug Store in Bremond that day. She presented the prescription to Alvin Schiller, the pharmacist and owner of the drug store. Schiller suspected that the prescription had been altered to increase the number of pills and the number of refills. He called Dr. Fiore to determine the quantity of pills that he had prescribed for appellant. Dr. Fiore confirmed Schiller’s suspicions that the prescription had been altered. Schiller then contacted the Sheriff’s Department of Robertson County and state narcotics officers in Bryan. These agencies instructed him to fill the prescription. Joe Y. McNutt, a deputy sheriff of Robertson County, had received the call from Schiller and investigated the case. McNutt had an opportunity to view the prescription and also suspected that it had been altered in the manner described above. He was at the drug store when Mrs. Duhr picked up the pills on April 28, 1983. Appellant was arrested that evening.

Appellant challenges the sufficiency of the evidence in his first ground of error. He claims there was no scientific testimony that he acquired the drug diazepam, asserting that there was no testimony regarding chemical tests performed on the pills, that Schiller was not qualified as an expert in drug analysis, and that any non-expert testimony concerning the identification of drugs is equivalent to no evidence at all. We hold the evidence sufficient.

Dr. Fiore testified that he issued the prescription for valium to appellant, and Schiller testified that he filled this prescription with valium. The testimony is clear that appellant acquired the drug valium. Dr. Fiore testified without objection that diazepam is the chemical name for valium. Schiller testified without objection that dia-zepam is the generic name for valium. Their testimony was not contradicted. Thus, the undisputed evidence showed that valium is simply another name for the controlled substance diazepam.

Appellant argues that Schiller was not qualified as an expert in drug analysis and therefore his testimony regarding the identity of the drug had no probative value. He relies upon Bright v. State, 556 S.W.2d 317, 322 (Tex.Cr.App.1977), and Duran v. State, 552 S.W.2d 840, 843 (Tex.Cr.App.1977) in support of this position. In each of those cases the substance in question was found in unmarked packets and chemical tests were held necessary to determine the identity of the substance. There was no need for chemical analysis in our case since the drug went directly from the pharmacist to appellant’s mother and then to appellant and the pills were not recovered in unmarked packets. Dr. Fiore testified that he had been practicing medicine approximately forty-five years. He graduated from medical school in 1938. He had surgery training and was now concentrating on family practice. Schiller testified that he graduated from pharmacy school in 1965, that he was a co-owner of three drug stores in Bryan from 1965 to 1969, that he was manager for all the pharmacy services for Bryan Hospital from 1969 to 1982, and that he had owned and operated the store in Bremond since March, 1982. Neither witness was called upon to identify an unknown substance. They were asked if valium is also known by the name diazepam. We hold they were qualified to testify on this issue and that their testimony was sufficient proof that appellant acquired the controlled substance diazepam. See McClanahan v. State, 394 S.W.2d 499, 502-03 (Tex.Cr.App.1965). Appellant’s first ground of error is overruled.

The information alleged that appellant acquired and obtained the diazepam “from Alvin Schiller.” The charge to the jury, in applying the law to the facts of the case, did not require the jury to find that the drug was obtained from Alvin Schiller. In all other respects the charge tracked the information. Appellant asserts in his second ground of error that the court’s failure to require a jury finding on “the source of the acquisition,” that is, “from Alvin Schiller” as alleged in the information, was reversible error. Although appellant did not object to the jury charge on this ground, he argues the error was fundamental. We disagree.

An omission from the court’s charge of an allegation in the charging instrument which is required to be proved has been held to be fundamental error. Cumbie v. State, 578 S.W.2d 732, 733 (Tex.Cr.App.1979). However, it is important to determine “which allegations in an indictment must be proved, for not every averment is ‘required to be proved.’ ” Sattiewhite v. State, 600 S.W.2d 277, 284 (Tex.Cr.App.1980). In our case, the allegation of the person to whom the prescription was passed was surplusage which the State was not bound to prove. Harrell v. State, 643 S.W.2d 686, 689 (Tex.Cr.App.1983). We conclude that although the name Alvin Schiller was alleged in the information and was proved at trial, the name was not required to be proved and its omission from the charge did not result in fundamental error. See Sattiewkite, supra, at 600 S.W.2d 284, 285.

The judgment is affirmed.


author: McNICHOLAS, Justice.

text:
    Carl LOHMANN, Appellant, v. GULF REFINING COMPANY, Appellee.
    No. 09-83-185-CV.
    Court of Appeals of Texas, Beaumont.
    Nov. 1, 1984.

      J.C. Zbranek, Liberty, for appellant.
    John R. Tilly, Houston, for appellee.
   OPINION

McNICHOLAS, Justice.

The plaintiff below, hereinafter referred to as “Lohmann”, appeals from an adverse judgment in favor of the appellee, Gulf Refining Company, hereinafter referred to as “GRC”.

Lohmann sought to recover damages from GRC when GRC laid a 27/s" common carrier pipeline in the State and County road rights-of-way abutting his property pursuant to permits issued by these governmental bodies. Lohmann challenged GRC’s status as a common carrier and alleged that his rights of access to his property were diminished by the installation of the pipeline.

In a non-jury trial, the court rejected both contentions, finding as a matter of fact that GRC is a common carrier and as a matter of law that the pipeline did not cause a material and substantial impairment of access, and granted GRC’s motion for judgment.

Lohmann’s land, the subject of this action, is a triangular shaped tract bordered on the south by the Hamshire Road right-of-way and on the east and north by Interstate 10 right-of-way. Prior to the installation of the pipeline in question, Lohmann’s farm was bisected by the construction of Interstate 10 and the triangular piece at issue was separated from Lohmann’s other property on the north side of Interstate 10. The State purchased an easement from Lohmann, but did not give him access rights from the property involved in the instant ease to Interstate 10. At the time GRC installed its 2⅞" line in the public rights-of-way, Lohmann’s property was already crossed by seven pipelines of varying sizes.

GRC and Lohmann failed to arrive at an agreement when GRC asked Lohmann for an easement for the pipeline. Thereafter, GRC received permits from Jefferson County and the State of Texas to construct and maintain a 27/8" common carrier pipeline in the public easements along Interstate 10 and Hamshire Road. Lohmann complained to the County and State officials but failed to obtain any relief. Once the line was laid, GRC applied to the Railroad Commission of Texas for and received a common carrier pipeline permit. GRC then published and distributed tariffs advising the public of the line’s availability and the rates charged.

Lohmann’s first and only point of error is that the trial court erred in granting a summary judgment for the reason that a fact issue existed as a matter of law regarding the liability of the appellee to the appellant.

The transcript and the record fail to reveal that any motion for summary judgment was made. Rather, the final judgment sets out that all matters of fact and of law were submitted to the court without a jury and after hearing all of the evidence, judgment was rendered for GRC. Absent the filing of a motion for summary judgment, we of course overrule appellant’s point of error.

We are further of the opinion, irrespective of the above, that the trial court’s judgment was correct. Although no formal findings of fact or conclusions of law were requested, the record reflects one fact finding by the court — that GRC was a common carrier, and one finding of law— that there was no material or substantial impairment of access to Lohmann’s property, and therefore, no damage had been caused. The court’s judgment implies all facts necessary to support the judgment and we will affirm the judgment if it can be upheld on any legal theory finding support in the evidence. Goodyear Tire and Rubber Company v. Jefferson Construction Company, 565 S.W.2d 916 (Tex.1978); Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1977). In reviewing the record to determine if any evidence supports the judgment and the implied findings of fact incident thereto, it is proper to consider only the evidence favorable to the issue and to disregard all evidence or inferences to the contrary. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950).

In order to recover for a diminution of value to land from a pipeline constructed outside the property, it is necessary for one to show that “access is materially and substantially impaired even though there has not been a deprivation of all reasonable access; as before, this is a question of law for the Court.” City of Waco v. Texland Corporation, 446 S.W.2d 1 (Tex.1969). For instance, streets may be narrowed without violating abutting landowner’s rights unless the landowner’s access is materially and substantially impaired, City of Houston v. Fox, 444 S.W.2d 591 (Tex.1969); traffic diversion or circuity of travel is noncompensible, City of Beaumont v. Marks, 443 S.W.2d 253 (Tex.1969); and, the closing of an alley even though access is more circuitous, is not compensi-ble as a matter of law, City of San Antonio v. Olivares, 505 S.W.2d 526, 529 (Tex.1974).

Unlike City of Waco v. Texland Corporation, supra, where the construction of a viaduct interferred with the ingress and egress of transport trucks which formerly had easy access to and from public roads, Lohmann’s access to his property was unchanged after the construction of the pipeline — no more, no less. We agree with the trial court that Lohmann’s failure to show material and substantial impairment of his right of access precludes his recovery of damages as a matter of law, and the finding that GRC is a common carrier as defined in the TEX.NAT.RES. CODE ANN. sec. 111.002 (Vernon Supp. 1984) and TEX.BUS. CORP.ACT ANN. art 2.01 B(3)(b) (Vernon Supp.1984) is supported by the evidence.

The judgment is affirmed.

AFFIRMED.

      . Motion was made by GRC for "instructed verdict", obviously a misnomer, and properly enti-tied "Motion for Judgment.”

      . In view of our affirmation, we find it unnecessary to consider GRC’s first reply point, regarding TEX.R. CIV.PRO. 418(d).


author: COHEN, Justice.

text:
    James E. BRAY, Appellant, v. Maria Pults McNEELY, Appellee.
    No. 01-84-00313-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 8, 1984.
    Rehearing Denied Dec. 20, 1984.

      Michael A. Pohl, Gilpin, Maynard, Parsons, Pohl & Bennett, Wanda L. McKee, Gilpin, Maynard, Parsons, Pohl & Bennett, Houston, for appellant.
    Frederick P. Forlano, Finger, Burg, Cohen & Forlano, Houston, for appellee.
    Before EVANS, C.J., and COHEN and WARREN, JJ.
   OPINION

COHEN, Justice.

James Bray originally filed two causes of action against Maria Putts McNeely and others who were subsequently dismissed from the suit. The first lawsuit was for breach of contract in the amount of $55,-000. The second was to recover an additional $20,000. These two actions were consolidated and tried together. McNeely counterclaimed, asserting that both transactions were usurious loans. The jury found for Bray on all issues.

The trial court then granted McNeely’s motion for judgment non obstante veredic-to, finding, as a matter of law, that the two transactions were loans and that the additional monies owed constituted interest greater than twice the amount authorized by law. Tex.Rev.Civ.Stat.Ann. art. 5069, sec. 1.06. Consequently, the court entered a judgment disregarding the jury verdict, ordering that Bray take nothing, forfeiting all principal and interest claimed by Bray, assessing a $17,000 penalty against Bray, equal to twice the interest charged, and awarding McNeely attorney’s fees of $19,-000, subject to credits if Bray did not appeal.

Appeal is taken only from the judgment non obstante veredicto as to the $55,000 transaction. No challenge is made to the trial court’s action in forfeiting all principal and interest on the $20,000 transaction, and in assessing penalties, attorney’s fees and costs in that transaction.

Relying on the advice of friends who knew McNeely, James Bray, a retired civil engineer, decided to invest with McNeely, who was in the real estate business. Bray initially loaned McNeely $20,000.00. One week later, on August 15, 1978, Bray entered into a second transaction with McNeely. Unlike the $20,000 loan, this transaction involved a specific piece of property, a 6.5 acre tract in Pasadena. McNeely wanted Bray to purchase a one-half interest in the property for $50,000. Bray agreed to the deal provided that he retain an option to require McNeely to repurchase his interest in the property if she was unable to sell it by October 15, 1978. The repurchase price was $55,000. Two documents were executed in accordance with the agreement.

The property was not sold by October 15, 1978, and Bray exercised his option and demanded payment, which McNeely refused.

The special issues regarding the $55,000 transaction were:

SPECIAL ISSUE NO. 4
Do you find from a preponderance of the evidence that the $50,000.00 was a loan or an investment?
Answer either “It was a loan” or “It was an investment.”
ANSWER: Investment.
If you have answered Special Issue No. 4 “It was an investment,” then answer Special Issue No. 5; otherwise, do not answer Special Issue No. 5.
SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence that the agreement entered into between James E. Bray and Maria Pults was that James E. Bray properly exercised, pursuant to their agreement, an option to sell his investment for $55,-000.00?
Answer “We do” or “We do not.”
ANSWER: We do.

Bray argues that the trial court erred in granting judgment non obstante veredicto and in finding that the transaction was a loan, and a usurious loan, as a matter of law. This court cannot sustain the action of the trial court unless it concludes that there was no evidence to support the jury’s verdict. Dowling v. NADW Marketing, Inc., 631 S.W.2d 726, 728 (Tex.1982). In making such a determination, we must consider the evidence and inferences from it in the light most favorable to the appellant, and we must ignore all evidence and inferences to the contrary. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

This court is presented with one question: Is this a usurious loan as a matter of law? The essential elements of usury are well established. They are: (1) a loan of money; (2) an absolute obligation that the principal be repaid; and (3) the exaction of a greater compensation than allowed by law for the use of the money by the borrower. Id. at 696.

To determine whether this transaction should be classified as a loan or a sale, we must look to the intention of the parties as revealed by the contract and the surrounding circumstances. Rinyu v. Teal, 593 S.W.2d 759, 761 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref d n.r.e.). In our case, the contract between the parties on its face discloses the purchase of an interest in property by Bray. Plaintiffs Exhibit 5 is a letter addressed to Bray signed by McNeely which begins:

Re: Your purchase of a one-half (1á) interest in and to that certain 6.521 acre tract out of and a part of Lot 2, South Houston Gardens No. 2, according to the Map recorded in Volume 3, Page 2, Map Records of Harris County, Texas, and being in the H.C. Burnett Survey, Harris County, Texas.

The letter continues as follows:

This letter will acknowledge our agreement, that in return for the sum of $50,-000.00 paid to the undersigned, the receipt and sufficiency of which is hereby acknowledged, and your further agreement to pay one-half (½) of the principal, interest, taxes and other expenses connected with the ownership, and sale of the property described and attached hereto as Exhibit “A”, which Exhibit “A” contains a metes and bounds description of the subject property, I have this date, agreed to give you a one-half (⅛) undivided interest in and to the subject property.
The title will remain in the name of Maria Pults, Trustee, but provided you pay your share as above provided, this letter will evidence that I am holding a one-half (½) undivided interest in and to the subject property as Trustee for you, and upon sale of said property, you will receive one-half (Vs) of the net sale proceeds.
Your [sic] further agree that provided we sell the subject property at a profit, that I have full rights and control over marketing, management and sale of the property, (all emphasis supplied)

Although the date on the letter, December 17, 1977, is clearly erroneous according to both parties, the letter is probative evidence of the sale of an interest in property. The letter makes no reference at all to any repayment by McNeely. It clearly identifies the property, it contains the names of both grantor and grantee, it is signed by the grantor, and it contains words, albeit limited, of a conveyance in trust.

McNeely argues that this court must look to the substance of the agreement rather than its form. She contends that we must look at the attendant circumstances, reflected in the testimony of the parties, as well as the documents. Relying upon Markwardt v. Harrell, 430 S.W.2d 1, 4 (Tex.Civ.App.—Eastland 1968, writ refd n.r.e.), she argues that Bray himself admitted at trial that the transaction was a loan, and that, consequently, he is bound by his admissions. However, much of the testimony brought to the attention of the court refers to the $20,000 transaction which is not at issue in this appeal. The testimony regarding the $50,000 transaction is ambiguous at best, as exemplified by the following:

Q.: Isn’t it true that the agreement that you had with Maria Pults was that you were to give her a fixed sum of money which she was supposed to repay back to you with an additional sum of money at a certain date and time?
A.: Yes, sir. She was investing that money and I would be repaid it from her profits on her investments.
Q.: And I take it your answer is “yes”?
A.: Yes, sir.
Q.: And at the time when the monies were due you, you had an absolute right to that, is that not correct?
A.: I think so.
Q.: Your answer is “yes”?
A.: I think so.
Q.: “Yes, I think so.”?
A.: Yes, sir.
Q.: Would the $50,000.00 loan she was supposed to repay in two months, she had an absolute obligation to you to pay that $50,000.00 back, didn’t she?
A.: That was only one of the options.
Q.: The option she exercised, sir?
A.: Yes, sir.
Q.: Based on the option that you exercised, she had an absolute obligation to pay that on October 15, 1978?
A.: Yes, sir.
Q.: And at that time, she also had an absolute obligation to pay you an additional $5,000.00?
A.: Yes, sir.

Certainly, Bray cannot be said to have testified “clearly and positively to facts which defeat his right to recover” as the plaintiff did in Markwardt, 430 S.W.2d at 4. See also Delta Enterprises v. Gage, 555 S.W.2d 555 (Tex.Civ.App.—Fort Worth 1977, writ ref’d n.r.e.), which held that payments labeled “interest” in documents were not interest and the transaction was not a loan; and Gonzales County Savings & Loan Association v. Freeman, 534 S.W.2d 903, 906 (Tex.1976).

Regardless of what the parties chose to call the transactions at the time of trial, the documents they signed are still probative evidence of a sale of property. In a recent usury case, the Supreme Court of Texas held, “Though oral testimony may rebut the presumption that the instruments are what they appear to be, the instruments still remain evidentiary facts which will support any inference properly drawn therefrom, and still present a question for the trier of facts.” Holley v. Watts, 629 S.W.2d at 697.

Not only was there documentary evidence that the transaction constituted a sale of an interest in property rather than a loan, there was also evidence that there was no absolute obligation to repay the $50,000. The evidence, both documentary and testimonial, reveals that McNeely had a contingent obligation to repurchase Bray’s interest in the property after October 15, 1978, for $55,000, if Bray exercised his option to sell. The option was set out in a handwritten document dated August 15, 1978, which read:

RE: Purchase of one-half (½) interest in and to that certain 6.521 acre tract out of Lot 2, South Houston Gardens No. 2 according to the Map recorded in Vol. 3 Page 2, Map Records of Harris County, Texas.
MARIA PULTS AGREES TO PAY payment due September 9, 1978, and has paid all previous payments on $350,-000.00 Note dated December 9, 1977. If this property is not sold by October 15, 1978, MARIA PULTS agree to pay JAMES E. BRAY the sum of $55,000.00 plus any other expense incurred by JAMES E. BRAY in connection with this property including one-half (¾⅞) of payment to be made on October 9, 1978, at option of JAMES E. BRAY, (all emphasis supplied).

McNeely argues that because Bray exercised his option, the transaction necessarily constituted a loan. This overlooks the fact that during the period from August 15, 1978 until October 15, 1978, McNeely had control over the property and could have sold it. She could have prevented Bray’s exercise of the option by selling the property and paying Bray one-half of the proceeds.

McNeely relies on Bray’s testimony that, once he exercised the option, McNeely had an absolute obligation to pay Bray. This is true; however, in this case, McNeely was not obligated to pay until Bray exercised the option. There was only a contingent obligation at the time the contract was formed.

A contract does not become usurious just because it contains a contingent obligation, such as a repurchase, option. In Rinyu, 593 S.W.2d at 759, the grantors had difficulty in meeting mortgage payments, so they sold their property to the grantee who leased the property back to them for a six-month term. The grantee gave them a six-month option of repurchasing the property for $1500 over the purchase price, an otherwise usurious amount. The Fourteenth Court of Appeals held that since the grantee could not force the grantors to exercise the option, there was no absolute obligation to repay, and, therefore, the transaction was not a usurious loan. In Beavers v. Taylor, 434 S.W.2d 230 (Tex.Civ.App.—Waco 1968, writ ref’d n.r.e.), the allegedly usurious interest due on a note was actually payment of a percentage of the debtor’s gross sales. The court held that the payments were a contingent obligation, since if there had been no gross sales by the company, there would have been no payment. The fact that the contingent payments exceeded the lawful interest rate did not render the otherwise legal contract a usurious loan as a matter of law. Id. at 232. See also Delta Enterprises, 555 S.W.2d 555; Korth v. Tumlinson, 73 S.W.2d 1048 (Tex.Civ.App.—San Antonio 1934, no writ).

The transaction before us is similar. McNeely was not absolutely obligated to pay Bray $55,000 or any other amount. Payment was contingent upon either sale of the land or exercise of the option. If the land had been sold, either before or after October 15,1978, the amount due Bray was uncertain. If the land was not sold, and if Bray did not exercise the option, nothing was due from McNeely. The fact that Bray did exercise the option does not make the contract a usurious loan as a matter of law.

In two additional points of error, Bray argues that special issue number five should be disregarded. Special issue five posed the following question:

Do you find from a preponderance of the evidence that the partial agreement gave Mr. Bray an option to resell his investment prior to October 15, 1978, that Mr. Bray did elect to sell his investment, and is entitled to have his $50,000.00 refunded?

There was no evidence that Bray had an option to sell prior to October 15,1978, nor was there any evidence that Bray was entitled to $50,000. As special issue six correctly reflects, he was entitled to $55,000. Since there was no evidence to support the submission of the special issue, the jury’s answer to that issue was immaterial and should not have affected the trial court’s judgment. That issue should be disregarded.

The controlling issue in this case was number six which asked:

Do you find from a preponderance of the evidence that the agreement entered into between James E. Bray and Maria Pults was that James E. Bray properly exercised, pursuant to their agreement, an option to sell his investment for $55,-000.00?
ANSWER: We do.

That issue is supported by evidence, and in answering that issue, the jury found for Bray.

We conclude that the trial court erred in granting the judgment non obstan-te veredicto and in finding, as a matter of law, that the $55,000 transaction was a loan with a usurious rate of interest.

The judgment of the trial court is reversed. Judgment is rendered that James E. Bray have and recover from Maria Pults McNeely the sum of $55,000, plus pre-judgment interest thereon at the legal rate from October 16, 1978, until February 20, 1984, the date of the district court’s judgment, and post judgment interest on that amount from February 20, 1984, until paid.

The cause is remanded to the trial court for a determination of reasonable attorney’s fees for Bray’s attorney in successfully prosecuting the $55,000 claim, without any portion being awarded for Bray’s attorney’s fees related to the $20,000 claim.

The above judgment against McNeely shall be credited with $7000, being twice the amount of the usurious interest Bray charged on the $20,000 transaction (2 x $3500), plus post-judgment interest thereon at the legal rate from the date of the district court’s judgment, February 20, 1984.

The cause is remanded to the trial court for a determination of a reasonable attorney’s fee for McNeely’s attorney in successfully prosecuting the usury cause of action on the $20,000 transaction, without consideration of services rendered in connection with the $55,000 claim. The sum so determined as attorney’s fees, plus legal interest thereon from February 20, 1984, shall be an additional credit on the judgment in McNeely’s favor.

Costs in the trial court are assessed ¾⅛ against Bray and against McNeely. Costs in this court are assessed against McNeely.

      . Ch. 274, sec. 2, 1967 Tex.Gen.Laws 610, amended by Ch. 281, sec. 1, 1979 Tex.Gen.Laws 604.


author: BULLOCK, Justice.

text:
    Eric Thomas BORGEN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0278-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 15, 1984.
    Rehearing Denied Dec. 17, 1984.

      Stanley G. Schneider, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Winston E. Cochran, Jr., Richard Mason, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before DOYLE, BASS and BULLOCK, JJ.
   OPINION

BULLOCK, Justice.

This is a sexual abuse case that comes to us on remand from the Court of Criminal Appeals.

Upon initial submission of this case, a panel of this court held that a comment by the prosecutor, during the guilt phase of the trial, constituted reversible error notwithstanding the absence of an objection by appellant. Borgen v. State, 657 S.W.2d 15 (Tex.App.-Houston [1st Dist.] 1983). We reversed and remanded this cause for a new trial. The Court of Criminal Appeals granted the state’s petition for review and held: (1) that the comment by the prosecutor was improper; but (2) that, in light of the total record, it was not so prejudicial as to call for reversal in the absence of appellant's failure to object. Borgen v. State, 672 S.W.2d 456 (Tex.Crim.App.1984) (not yet reported). The court remanded the cause to us for determination of the remaining two grounds of error presented by appellant: That he was denied effective assistance of counsel; and that the prosecutor’s improper argument to the jury at the punishment stage denied appellant due process of law. Appellant does not challenge the sufficiency of the evidence supporting his conviction.

Appellant contends in his first ground of error that at the punishment stage of his trial, his attorney suffered an impairment of effective assistance that, appellant claims, “can only be characterized as a total collapse.” Specifically, appellant contends that his attorney failed to render effective assistance by (1) failing to object to evidence of extraneous offenses and other bad conduct by appellant, by (2) failing to make a timely objection to an allegedly improper question, by (3) having made an unnecessary comment to the jury that the prosecutor subsequently used to appellant’s disadvantage, and by (4) failing to request a hearing outside the jury’s presence on the competency of the state’s witnesses.

The state responds that, the record not having made the reason for appellant’s attorney’s lapses clear, no concrete basis for finding ineffective assistance of counsel exists, and that appellant’s attorney’s actions were conceivably the exercise of strategic or tactical options. Having examined at the entire record in this case, we conclude that the total circumstances of appellant’s representation do not clearly demonstrate a denial of effective assistance of counsel; we thus overrule this ground of error. Romo v. State, 631 S.W.2d 504 (Tex.Crim.App.1982).

Appellant’s remaining ground of error is that the prosecutor made prejudicially improper statements to the jury during the punishment stage of the trial.

During his final statement to the jury at the punishment stage of appellant’s trial, appellant’s counsel averred that “whatever happened” he would appeal the case. The prosecutor seized upon this statement and began his final statement as follows:

[PROSECUTOR]: May it please the court, ladies and gentlemen, this has been a rather quick trial as far as a criminal trial. One thing you have just learned is you have been given information that most jurors don’t ever get. The last question or the last comment that this lawyer told you about was if you made a mistake, don’t make a mistake. He said if he makes a mistake and you give him probation he will be sent to the penitentiary. Well, you see, you don’t need to worry about him making a mistake. The lawyer told you he is going to appeal this conviction. No matter what he is going to appeal. Any mistake you may have made some other court will rectify. [Emphasis supplied].

A few moments later, the prosecutor concluded his summation by returning to this theme:

I tell you based upon this evidence there is no question in my mind that this thing deserves a 20 year sentence and a $10,000.00 dollar fine. And if you need to be comforted the fact is you know the Defendant is going to appeal and if you do the wrong thing somebody will take care of it. If you’ve done the right thing you are also taken care of. God bless you. Thank you. [Emphasis supplied].

Appellant made no objection to either statement.

A proper jury argument is one that (1) summarizes the evidence, (2) draws reasonable deductions from the evidence, (3) responds to the opposing counsel’s arguments, or (4) is a plea for law enforcement. Todd v. State 598 S.W.2d 286, 296-297 (Tex.Crim.App.1980). Even when an argument exceeds these boundaries, however, “such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts, harmful to the accused, into the trial proceeding.” Todd v. State, 598 S.W.2d at 297.

Generally, a defendant waives any impropriety in the prosecution’s argument if he fails to make a timely objection to the impropriety. Romo v. State, supra. An objection is not necessary to preserve error, though, where the improper statement is so prejudicial that an instruction to disregard will not cure the harmful effect. Romo v. State, supra; Smith v. State, 541 S.W.2d 831 (Tex.Crim.App.1976).

Thus, our inquiry requires that we determine, first, whether the commentary challenged on appeal was improper; and, second, if it was improper, whether it was so prejudicial as to excuse appellant’s failure to object.

We hold that the statements were improper. The statements could not reasonably constitute a summarization of the evidence; on the contrary, they were a direct attack on appellant’s plea for leniency, based solely on a comment by appellant’s attorney to the jury on matters outside the record.

Nor did the statements fall within the second permissible area of jury argument under Todd, supra. For the reasons outlined above, the statements could not constitute a reasonable deduction from the evidence.

Neither were the statements a proper, invited response to the argument of opposing counsel. The state argues appellant invited this argument by stating to the jury that he would appeal the case. It is true that, if a defendant’s counsel invites argument in his own statement to the jury, it is not error for the state to reply to that argument, but this permission to reply does not constitute an unbounded license to stray beyond the scope of the invitation. Pemberton v. State, 601 S.W.2d 333, 338 (Tex.Crim.App.1979). In the instant case, the state went beyond a mere explanation of appellant’s right to appeal by telling the jury that, because appellant intended to appeal, it did not matter if the jury “made a mistake,” the prosecutor affirmatively encouraged the jury to ignore the responsibility to render a fair sentence that the jury assumed when it took its oath. This exceeded any permission to argue that appellant’s counsel statement may have invited under Pemberton, supra.

Finally, the statement did not reasonably constitute a plea for law enforcement. The state did not ask the jury to uphold the law, or to provide for a safer society by enforcing the law. On the contrary, the prosecutor’s statement actually charged the jurors not to concern themselves with interests of justice or fairness but instead to have blind faith in an almost parenthetical remark concerning appeal as the ultimate failsafe that they could do no wrong. The argument was calculated to and probably did give the impression to the jury that, no matter what it did, a higher court would ensure ultimate, perfect justice for appellant, and that therefore it need not concern itself with assessing a punishment that it sincerely felt was proper. This was not only outside the Pemberton exception, but expressly contrary to our system of criminal justice, for it in effect, told the jury that it could deal harshly with appellant at the punishment stage, rather than concerning itself with an honest effort to determine a proper punishment.

We next consider whether an objection was necessary to preserve error. We find that this particular impropriety by the prosecutor was much stronger and more direct in its intended and probable effect than the prosecutor’s comment at the guilt stage that, “As long as lawyers are for hire, justice is for sale.” In its argument during the punishment stage, the state told the jury in effect, “You don’t have to do the right thing here, because an appellate court will take care of it.” This was an improper attempt to take advantage of a statement by appellants’ counsel and resulted in an inducement for the jury to disregard its sworn duty. To hold that an instruction to disregard was necessary to preserve review of an impropriety so clearly outside the bounds delineated in Todd, supra would vitiate the whole purpose of the policy expounded therein.

The prosecutor’s argument being improper, and so prejudicial as to render objection unnecessary to preserve error, we sustain appellant’s third ground of error.

We reverse the judgment of the trial court and remand the case for a new trial.