author: W.C. DAVIS, Judge. W.C. DAVIS, Judge, CLINTON, Judge,

text:
    Thomas Ray BREAZEALE and Wallace Neil Higgs, Jr., Appellants, v. The STATE of Texas, Appellee.
    Nos. 387-83, 604-83.
    Court of Criminal Appeals of Texas, En Banc.
    July 11, 1984.
    On Rehearing Jan. 23, 1985.

      Robert A. Jones, Houston, for appellant Thomas Ray Breazeale.
    John B. Holmes, Jr., Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State in No. 387-83.
    Terrence Gaiser, Houston, for appellant Wallace Neil Higgs, Jr.
    John B. Holmes, Jr., Dist. Atty. and Calvin Hartmann and Richard Wilkinson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State in No. 604-83.
    Before the court en banc.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant Wallace Neil Higgs, Jr. pled guilty to possession of lysergic acid diethyl-amide, a controlled substance. The court found appellant guilty and sentenced him to ten years’ confinement.

Appellant Thomas Ray Breazeale pled not guilty and was tried before the court for the felony offense of forgery. The court found appellant guilty, found the enhancement allegations contained in the indictment to be true, and sentenced him to life imprisonment. V.T.C.A., Penal Code, § 12.42(d) prior to the 1982 Amendment.

Both cases were reversed by the court of appeals, 655 S.W.2d 230, for the fourteenth supreme judicial district, on the ground that Art. 1.13, V.A.C.C.P. was not complied with because no written waiver of jury trial signed by the appellant appeared in the record.

We granted the State’s petition for discretionary review in both cases to address the issue of whether a felony judgment that recites that the appellant waived his right to trial by jury is sufficient where the record does not contain such a waiver.

The State argues that the presumption of regularity based upon recitals in the judgment should control the waiver of the right to trial by jury, and that no other evidence need be included. The State points out that prior case law has applied the presumption on the issue of jury waiver. Harvey v. State, 485 S.W.2d 907, 908, (Tex.Cr.App.1972); Graham v. State, 138 Tex.Cr.R. 449, 136 S.W.2d 830 (1940); Waldrop v. State, 129 Tex.Cr.R. 134, 83 S.W.2d 974 (1935). However, these cases were tried under Art. 10a of the Code of Criminal Procedure of 1925. Art. 10a is the predecessor to the current Art. 1.13, V.A.C.C.P., but there are some critical differences between the two. Art. 10a provided:

‘The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must be made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approvals by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.
‘Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.’

Art. 1.13 as amended in 1959 and 1965 reads:

The defendant in a criminal prosecution for any offense classified as a felony less than capital shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea. Before a defendant who has no attorney can agree to waive the jury, the court must appoint an attorney to represent him.
Acts 1965, 59th Leg. vol. 2, p. 317, ch. 722.

The present article, Art. 1.13 commands that a waiver be made in person by the defendant and signed by him. Ex Parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979). Art. 10a did not require any writing by the defendant.

The State also cites several recent cases holding that where prior convictions offered into evidence or prior convictions used for enhancement contain only a recital in the judgmént alleging waiver of jury trial, the presumption of regularity applies and no written waiver need be included. Williams v. State, 605 S.W.2d 596 (Tex.Cr.App.1980); Berry v. State, 582 S.W.2d 463 (Tex.Cr.App.1979); McCoy v. State, 529 S.W.2d 538 (Tex.Cr.App.1975). These cases rely on old case law decided under Art. 10a or on cases dealing with the right to counsel. Neither of these cases is convincing. No mandatory statute cognate to Art. 1.13 requires written waiver of the right to counsel.

Art. 10a did not require written waiver by the defendant, but only by the State. Since the right to jury trial in criminal cases is fundamental to our system of justice and is and has always been intended primarily for the protection of the accused, the focus of the right is upon the defendant. The Legislature made this idea very clear when they replaced Art. 10a with Art. 1.13 and required written waiver by the defendant himself.

Boyd v. State, 660 S.W.2d 820 (1983) controls this case. In Boyd we held that the defendant’s motion to quash the enhancement portion of the indictment due to the absence of a jury waiver should have been granted. We held that one purpose of Art. 1.13 is to protect a defendant by expressly conditioning a waiver of the right to jury trial on the requirements that it be in person, in writing, and in open court.

We hold that the presumption of regularity does not apply to waiver of jury trial in the light of the express dictates of Art. 1.13; to hold otherwise would be to render nugatory the protection of the defendant’s right to jury trial which is the purpose of Art. 1.13. In order to show a valid waiver the State must comply with Art. 1.13 and include in the record a waiver of jury trial signed by the defendant. All cases to the contrary are overruled insofar as they apply to trials conducted since the effective date of the adoption of Art. 1.13.

The judgments of the court of appeals reversing the judgments of the trial courts are affirmed.

CAMPBELL, J., concurs in the result.

McCORMICK, J., dissents.

OPINION ON STATE’S MOTION FOR REHEARING

TEAGUE, Judge.

On original submission, this Court, with Judge McCormick dissenting and Judge Campbell concurring in the result, affirmed the judgments of the Fourteenth Court of Appeals, which had reversed the convictions of Thomas Ray Breazeale and Wallace Neil Higgs, Jr., appellants, because each record of appeal did not reflect a formal written waiver of the right to a jury trial. This holding was made notwithstanding that the felony judgment in each cause affirmatively recites that a written waiver of the right to trial by jury was in fact executed.

This Court expressly held: “We hold that the presumption of regularity does not apply to waiver of jury trial in the light of the express dictates of Art. 1.13 (footnote omitted). In order to show a valid waiver the State must comply with Art. 1.13 and include in the record a waiver of jury trial signed by the defendant. All cases to the contrary are overruled insofar as they apply to trials conducted since the effective date of the adoption of Art. 1.13.”

We granted the State’s motion for rehearing in order to make the determination whether the above holdings are correct statements of the law. We find that they are not. We will, therefore, grant the State’s motion for rehearing. We will also remand Higgs’ cause to the court of appeals for it to consider Higgs’ grounds of error which have not yet been reviewed. Because the court of appeals has reviewed all of Breazeale’s other grounds of error, and rejected them, we will affirm the judgment of the trial court in that cause.

The formal judgment in Breazeale’s case reflects in part that Breazeale, “in person and in writing, in open court, having waived his right of trial by jury ...” The formal judgment in Higgs’ case is in all things identical. No issue was made in the trial courts over whether there had been a written waiver of the right to a jury trial. The State concedes that other than the recitations in the formal judgments, the records of appeals are silent on whether the appellants formally waived their right to a jury trial.

On direct appeal in Higgs’ cause, the State argued the following: “The State recognizes that, where there is an affirmative showing of no waiver, such a recitation in the judgment is insufficient. Ex parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979); Boyd v. State, 633 S.W.2d 661 (Tex.App.— Eastland 1982). However, unlike Felton, there is no affirmative showing that no waiver of jury trial was executed. Neither was there a bill of exception or objection to the record as required in 40.09(1), (7), Y.A. C.C.P. In absence of such an affirmative showing, the recitals create a presumption of regularity. Ex parte Reed, 610 S.W.2d 495 (Tex.Cr.App.1981); McCoy v. State, 529 S.W.2d 538, 539 (Tex.Cr.App.1975); Creeks v. State, 537 S.W.2d 29 (Tex.Cr. App.1976). Further, the appellant neither claims he requested a jury trial nor that he was harmed in any way as a result of no jury.”

On direct appeal in Breazeale’s cause, the State made the following arguments: “Under the presumption of regularity of judgments, it must be presumed, in the absence of a contrary showing, that the recitation in the judgment and sentence, which were signed by the judge, is correct, and that the appellant, in writing, in open court, waived the right to a trial by jury. Creeks v. State, 537 S.W.2d 29 (Tex.Cr.App.1976); Robert v. State, 613 S.W.2d 291, 292 (Tex.Cr.App.1981); Housewright v. State, 573 S.W.2d 233, 235 (Tex.Cr.App.1978). The presumption of regularity created by recitals in the judgment can be overcome only when the record otherwise affirmatively reflects that error occurred. Creeks v. State, supra; Ex parte Reed, 610 S.W.2d 495 (Tex.Cr.App.1981).”

We find the State’s arguments and authorities persuasive, and will grant its motion for rehearing.

We pause momentarily to point out that in Samudio v. State, 648 S.W.2d 312 (Tex.Cr.App.1983), where the defendant was convicted of a misdemeanor offense, the formal judgment in that cause only contained the following recitation: “No jury having been demanded ...” This Court agreed with the decision of the court of appeals in that cause, see Samudio v. State, 635 S.W.2d 183 (Tex.App.1982), that this recitation was insufficient to establish that the defendant had waived his right to trial by jury. Samudio, however, emphatically distinguished between the absence in the record of a demand for a jury trial and an affirmative waiver thereof, and held that such could be challenged on direct appeal. Because of the difference in the wording of the judgments in the causes before us, and the judgment in Samudio, supra, Samudio is inapplicable to this cause.

The recitation in the judgments of these causes complies with the provisions of Art. 42.01, V.A.C.C.P., which defines the legal term “judgment,” and what should be placed in the formal judgment.

By both case law, see, for example, Hardin v. State, 471 S.W.2d 60, 63 (Tex.Cr.App.1971) (It is presumed on appeal that all the rulings of the trial court are correct); Johnson v. State, 478 S.W.2d 442, 444 (Tex.Cr.App.1972) (It is presumed on appeal that if trial was to the court, the trial judge ignored improperly admitted evidence); Jackson v. State, 494 S.W.2d 550, 551 (Tex.Cr.App.1973) (In an appeal involving the application of the law of another state, the Court of Criminal Appeals will presume that the foreign law is the same as Texas law), and statutory law, see Art. 44.24, V.A.C.C.P., there are many evidentiary legal presumptions utilized by this Court.

In addition to the above evidentiary presumptions, this Court will indulge every presumption in favor of the regularity of the documents in the trial court. McCloud v. State, 527 S.W.2d 885, 887 (Tex.Cr.App. 1975); Nichols v. State, 511 S.W.2d 945, 947-948 (Tex.Cr.App.1974). This means that the recitations in the records of the trial court, such as a formal judgment, are binding in the absence of direct proof of their falsity. In this instance, neither appellant has ever attacked or challenged the truthfulness of the recitation that is found in each of their formal judgments. They rely in support of their contention, that they did not formally waive a trial by jury, on the absence of any such document in their respective appellate record. This, of course, is insufficient to overcome the presumption that the recital in a formal judgment, that the defendant formally waived his right to trial by jury is true, and that such presumption attains until and unless the contrary is made to appear. Ex parte Brewer, 156 Tex.Cr.R. 369, 242 S.W.2d 430 (Tex.Cr .App.1951).

While it is true that a silent record cannot support a presumption that the defendant formally waived his right to trial by jury, it is equally certain that the formal judgment of the trial court carries with it a presumption of regularity and truthfulness, and such is never to be lightly set aside. Ex parte Morgan, 412 S.W.2d 657 (Tex.Cr.App.1967).

In this instance, neither appellant made any objection to the judgment that was entered and filed in his respective cause. Nor did either make an issue in his respective trial court over whether a formal written waiver of jury had been properly signed and filed. Nor did either request, through a designation of the record, the inclusion of the formal written waiver of the jury in the record of appeal, that each is presumed to have executed. Nor are we confronted with records of appeals which are both silent as to a formal written waiver of jury trial and the presumption that the formal judgment speaks the truth.

The burden of reciting in the formal judgment that a jury was waived by the accused is one established by statute, see Art. 42.01, supra, and if such recitation is present the burden is then on the accused to establish otherwise, if he claims that the contrary is true. In this instance, neither of the appellants overcame the presumption that his. respective formal judgment spoke the truth and was in all things regular.

The State’s motion for rehearing is sustained. Appellant Higgs’ cause is ordered remanded to the Fourteenth Court of Appeals for that court to review the grounds of error that have not yet been reviewed. The judgment of the court of appeals in Breazeale’s cause is reversed and the judgment of the trial court is affirmed.

W.C. DAVIS, Judge,

concurring.

Upon reconsideration of appellant’s contention, I agree that the issue is whether, for purposes of appellate review, a recital in the judgment that appellant waived his right to trial by jury, suffices to affirmatively show waiver. The issue is not whether the State failed to comply with the mandatory provisions of Art. 1.13, V.A.C. C.P. because appellant does not contend that he did not waive his right to jury trial. Rather, he essentially contends that the appellate record does not adequately reflect his waiver because the written waiver itself is not in the record. Appellant argues that this Court should not presume a waiver just because the judgment states that he did waive his right to trial by jury.

I join the opinion of the Court that where the judgment of conviction recites that a defendant “waived his right to trial by jury”, the record affirmatively shows a waiver by that defendant. The burden is then on the defendant to refute that recitation and show that he did not waive his right to trial by jury as required by Art. 1.1S.

CLINTON, Judge,

concurring.

There is too much said by the State and in the opinion of the Court about “the presumption of regularity of judgments”— as if the sole issue is whether it may be applied in the circumstances of these causes. That approach, I suggest, creates much of the difficulty we are experiencing in not yet finding a satisfactory solution to this problem. Let us address it in another way.

Whether trial be by jury or court is largely an option granted an accused by a combination of constitutional and statutory provisions. Article I, §§ 10 and 15, Constitution of the State of Texas; Articles 1.05, 1.12, 1.13, 1.14 and 1.15, V.A.C.C.P. See generally Turner v. McDonald, 676 S.W.2d 371 (Tex.Cr.App.1984).

Complying with one requisite of a judgment laid down in Article 42.01, V.A.C.C.P., the trial judge signed and caused to be entered of record judgments which recite as historical fact that each accused “in person and in writing, in open court, ... waived his right to trial by jury ...” That is to say, the trial court found that each appellant had exercised his right to waive trial by jury — opting instead for a trial before the court.

Though appellants’ respective grounds of error were framed somewhat differently, the essence of their contentions to the court of appeals is that since the record does not contain a written waiver of jury trial executed by each in accordance with Article 1.13, V.A.C.C.P. (notwithstanding a recitation in the judgment that each accused had waived his right to trial by jury), the trial judge erred in conducting a trial-before the court. In short, they sought to reverse their respective convictions on the proposition that when, dehors the judgment, the record on appeal fails to show that an accused exercised a right granted by statute to waive his constitutional right to trial by jury, the resultant judgment of conviction is invalid. The proposition, raised for the first time on appeal, was accepted and upheld by the court below.

The right of a criminally accused person to a trial by jury is constitutionally guaranteed. Article I, §§ 10 and 15, supra. However, appellants have not claimed that right; nor have they complained that it was wrongfully denied. Indeed, though

presented with ample opportunities in the trial court, appellants never expressed any opposition to the ease being heard by the trial court without a jury.

In Samudio v. State, 648 S.W.2d 312 (Tex.Cr.App.1983) a unanimous Court held that “counseled acquiescence to a non-jury proceeding” does not amount to waiver of right to trial by jury in a misdemeanor case, with respect to which neither Article 1.13 nor any statute governing waiver of jury trial - applies, and that with only a silent record as to waiver the State “failed to meet its constitutional burden of establishing waiver of jury trial,” id., at 315. Of course, here the record is not silent: The judgment of conviction recites that appellant “waived his right to trial by jury.” Thus, the record affirmatively demonstrates a waiver by each appellant, so the State has discharged its constitutional burden.

What appellants are really asserting is that a waiver of jury trial in the manner prescribed by Article 1.13 is not documented in the record. Contrary to the notion expressed in the opinion on original submission, that assertion does not rise to a level of constitutional dimension, for there is no constitutional provision which prohibits an accused from knowingly and intelligently waiving his right to trial by jury in a felony prosecution. Ex parte Ross, 522 S.W.2d 214, 222 (Tex.Cr.App.1975). Samudio is therefore inapposite.

Though it may be said that Article 1.13 “commands that a waiver be made in person and signed by him,” making compliance with its provisions mandatory, Ex parte Felton, 590 S.W.2d 471 (Tex.Cr.App.1979), nothing more is implicated here than an alleged failure in the trial court to conform to statutory prescriptions for showing a waiver of jury trial. We do not know that there was an actual failure to conform— just that the record before the Court does not contain papers reflecting compliance.

The trial court having found that each appellant waived his right to trial by jury, a plethora of procedural means was readily available to contest that finding in the forum of the trial court. A motion for new trial that the court “has committed [a] material error calculated to injure the rights of defendant” is a solid ground under Artiele 40.03, Y.A.C.C.P. and, if supported by the showing appellant now alleges to be the ease, granting a new trial would have placed the cause in the same position as before any trial had been held, Article 40.-08, id. A motion in arrest of judgment suggesting that “judgment has not been legally rendered against him” would lie under Article 41.01, V.A.C.C.P., and related provisions of Chapter Forty One. More informally, at allocution under 42.07, id., an accused could make it known that he had not properly waived his right to trial by jury pursuant to Article 1.13. Thereafter, a formal bill of exception to make the record disclose any event or occurrence relevant to the issue of waiver was available under Article 40.09, § 6(a), id. Even an objection to the record in accordance with Article 40.09, § 7, id., would have it “speak the truth” about any alleged failure to follow Article 1.13.

In these circumstances to resort to “the presumption of regularity of judgments” is but a facile and vacuous methodology of appellate review. Appellants’ contention that the trial court erred in proceeding to trial without a jury simply has not been preserved for appellate review, and that is what we ought to hold. On that basis I join the judgments of the Court.

The judgments of the Houston (14th) Court of Appeals should be reversed and the judgment of the trial court affirmed in Breazeale v. State, our Cause No. 387-83; Higgs v. State, our Cause No. 604-83 should be remanded to the court of appeals to decide his remaining grounds of error.

      . Because the statutory scheme requires the result reached, we need not discuss — and do not endorse — the court of appeals’ holding in these two cases that the rule of review presuming the regularity of judgments “does not apply to fundamental, constitutionally protected rights such as the right to trial by jury.”

      . A different case is presented when the record contains either a judgment reciting merely that no jury was demanded or when the record is silent on the issue. In such cases, the record does not affirmatively reflect a waiver of the right to trial by jury, as is required.

      . As a matter of fact, appellant Higgs states in his brief that his case "was tried to the Court simultaneously with Appellant's Motion to Suppress Evidence,” and the record bears out an "understanding” between the parties and the court to that effect; and for whatever it is worth the record shows that more than six months before actual trial appellant Breazeale agreed to reset the case for "Trial to Court.” If either appellant did not in fact opt for a trial before the court, the time to let that be known to the judge of the trial court and to the prosecution was before announcing ready for trial that manifestly was going to be conducted by the trial judge without a jury, and then joining issue on the indictment. As with nearly every other matter of procedure perceived to be working adversely to the rights or interests of an accused, some character of outcry ought to be made in order that corrective action may be taken. Zillender v. State, 557 S.W.2d 515, 517 (Tex.Cr.App.1977).


source: Caselaw Access Project

author: BUTTS, Justice. DIAL, Justice, CADENA, Chief Justice. DIAL, Justice,

license: Public Domain

text:
    Charles Edward PADGETT, Appellant, v. The STATE of Texas, Appellee.
    No. 04-82-00026-CR.
    Court of Appeals of Texas, San Antonio.
    June 1, 1983.
    Rehearing Denied Nov. 30, 1984.

      Louis T. Rosenberg, David Chapman, San Antonio, for appellant.
    Bill White, Dist. Atty., Sam Ponder, Robert Arellano, Miguel Martinez, Asst. Crim. Dist. Attys., San Antonio, for appellee.
    Before BUTTS, TIJERINA and DIAL, JJ.
   OPINION

BUTTS, Justice.

This is an appeal from a conviction for aggravated kidnapping. After a jury found appellant guilty, the trial court found both enhancement allegations in the indictment to be true and assessed his punishment at life imprisonment.

Appellant challenges the verdict by four grounds of error. We sustain his fourth ground: that a jury charge on the lesser included offense of kidnapping should have been given. We therefore reverse and remand the case to the trial court.

The indictment in this case alleges, in pertinent part:

... on or about the 13th day of August, 1980, CHARLES EDWARD PADGETT did then and there intentionally and knowingly abduct TRACY L. BECK-WITH, by THREATENING TO USE AND USING DEADLY FORCE with intent to TERRORIZE THE SAID TRACY L. BECKWITH; ...

The complainant was a 17-year-old who worked on the date of the offense at a Steak ’n Eggs restaurant on Harry Wurz-bach Road in San Antonio. It was customary for one waitress to be the only employee on duty at that time of day, which was about 3:00 p.m. A couple left the restaurant, leaving only the appellant present. A neighborhood ranger patrolman came in, drank a cup of coffee, and left. Appellant then asked Beckwith to “watch his table” while he went outside for a moment. After agreeing to this, the complainant went to the restroom. When she later stepped out of the restroom, appellant seized her by the arm and pressed a gun against her lower back. She believed the gun to be a .45 caliber; it later proved to be a heavy pellet gun. She testified:

Then he proceeded to threaten me, tell me that I had better cooperate and if I didn’t, he would blow my brains out, and there was various bad language.
When asked about the ‘various bad language,’ she replied that ‘in all my statements I left the vulgar out.’ She recalled that he said, instead of ‘blow my brains out,’ the words were, ‘I’m going to blow your shit away.’

She was wearing a white uniform with an apron. He ordered her to remove the apron and leave it on the floor. Appellant also told her to leave her purse at the restaurant. He then walked her over to the cash register and told her to get the money, still with the gun against her back. She removed the bills only, less than $40.00, and he then put the gun in his waistband, placed his arm about her, and they walked out the door and went to the back parking lot.

Appellant put her in the front seat of his pickup, which had a Coleman camper on it, ordering her to put her head “down between my legs.” She said she complied because she was afraid he might hurt her or shoot her. She also stated he had a conversation with “two black men” in another vehicle away from the pickup at the time, but she did not see them. She said the two other men wanted appellant to give her to them, but he refused. The patrolman testified otherwise, stating there had been no other vehicles on the parking lot when he was there.

Appellant drove the truck away, and, she stated, he repeatedly told her he would “drop” her off soon. He advised that they were driving through the Post (Fort Sam Houston), but she did not raise her head. She was perspiring and he told her to wipe her face with a towel, “and I being stubborn, I didn’t want to ... I just didn’t want to bother to look up or anything, and so finally he pulled my head up [by her hair] and smacked me with his back hand ... and jabbed me in the side with a gun, telling me I had better do what he said.” She said she was afraid of him and wondered what he might do to her.

Appellant drove to Raymond Russell Park off Interstate 10 West. She said he put her in the camper and tied her hands with an electrical cord, her feet with cord from a hair blow dryer, and placed a handkerchief gag on her mouth. She stated there was no one around, although the defense pointed out this was summertime and a popular park. She said she did not attempt to cry out. She testified she threw the money (bills) at him in the cab while her head was down because she was “mad.” They left Raymond Russell Park while it was still daylight and went to a service station. She did not attempt to call out because he had told her to be quiet or he would kill her and the attendant. She said she believed him.

They continued on I — 10 West until they came to a roadside park with facilities. She had gone to sleep. When he was not in the cab, he “was always sitting in the back talking to her,” she said, about his old war days, ripping off places like Tiffany’s, girls he had taken, then raped, and it “turned into some big party” because the girls enjoyed it, people he had killed, taking girls and selling them. She said she did not believe all his stories.

He untied her feet when they arrived at the “comfort station,” and took off the mouth gag, leaving her hands tied. She went to sleep before he did and awoke after he did on the two nights she was with him. She related he lay by her each night, on the camper floor, but did not attempt to have sexual relations with her nor to contact her sexually. He wanted her to call him “daddy,” and he told her he was going to buy her a car, a house and a dog, and take her out and “show her off” to all his friends. He told a family at a rest stop she was his daughter.

The next morning they continued on to Ozona and stopped at a rest stop on a cliff [near Sheffield]. The water hose “broke,” and while he repaired that, appellant untied Beckwith’s hands. He had not threatened her any more, she said, after the first day. She remained untied after that. She was going to try to escape, she said, on the second night, but she fell asleep again. When she woke the next morning, appellant was helping a trucker with truck repairs at the rest stop. She sat on the tailgate of the pickup. She and appellant were sitting later at a picnic table when the officers arrested appellant. [This was for an unrelated offense, and the officers had a warrant and a description of his truck.] The testimony of an officer showed that other people were at the rest stop when they arrived.

Beckwith admitted on cross-examination that she had “gone to the restroom” away from appellant and that she had changed her clothes. Further she said she was alone much of the time in the camper and there were windows, but that she did not attempt to alert anyone that she was a captive. They went to a store and he bought snack food while she remained in the camper without a gag on her mouth the first evening. He untied her feet when they returned from the store. He permitted her to go to the restroom at the first comfort station. She stated she saw two knives in the camper and she knew their location in the camper. The arresting policemen found three knives in the camper. At the last rest stop, which had no facilities, appellant let her climb a fence to go to the “restroom.” The appellant did not testify nor offer other testimony.

Kidnapping, TEX. PENAL CODE ANN. § 20.03 (Vernon 1974) is the offense committed when a person intentionally or knowingly abducts another, and the jury charge so defined it in this case. The charge defined abduct by tracking the instant indictment and the statute. Abduct, § 20.01 of the penal code, means to restrain a person with intent to prevent his liberation by:

(B) using or threatening to use deadly force.

It further defined restrain as restricting a person’s movements, so as to interfere substantially with his or her liberty, by moving him or her from one place to another or by confining him or her. § 20.01(1).

Deadly force was defined for the jury as force that is intended or known by the person acting to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. See, TEX. PENAL CODE ANN. § 9.01(3) (Vernon 1974).

Therefore, in the present case, the jury must initially find that the appellant intentionally or knowingly restrained Beck-with with intent to prevent her liberation by using or threatening to use deadly force [abduction]. These are the required elements of kidnapping. In order to elevate the offense to aggravated kidnapping the jury next must find that the kidnapping was committed with intent to terrorize Beckwith, § 20.04(a)(5), and the trial court so charged.

The term “terrorize” was not defined in the jury charge. A search of Texas cases reveals no definition nor, as yet, any conviction which rests upon subsection 5 of the aggravated kidnapping statute. We have drawn upon another source to guide us since appellant’s first ground of error attacks the sufficiency of the evidence to sustain a finding of appellant’s specific intent to terrorize Beckwith.

Webster’s Third New International Dictionary (1981) casts some light upon the meaning of “terrorize”: It may mean to fill with terror or anxiety; or to coerce by threat or violence. Perhaps, to excite fear; or to rule by intimidation, p. 2361. Terrorism may be the systematic use of terror as a means of coercion. It may create an atmosphere of threat or violence, p. 2361. Terror may denote stark fear; a state of intense fright or apprehension, p. 2361. Terrorize, as distinct from terrify, often implies an intentional affecting with terror, p. 912 (frighten). See also: Arto v. State, 19 Tex.App. 126, 136 (1886) stating that terror means more than fright or alarm.

A person’s intent may be shown by his acts and his words. We are mindful that Beckwith remained calm, never became hysterical, did not try to escape, had access to knives in the camper, did not attempt to attract passersby on 1-10 West, did not call out to others at rest stops, and did not appear to be agitated or upset when the officers arrested appellant. The State offered medical evidence that such apparent calmness, along with sleepiness, may be evidence of withdrawal from a stressful situation. Although Beckwith did not appear to be terrorized outwardly when rescued, she repeated during the trial that she was afraid of the appellant, of 'what he might do to her. She told about recurring nightmares. It is generally known that not all persons react in the same manner to frightening events. We hold there was sufficient, albeit conflicting, evidence for a jury to find an intent by appellant to terrorize the victim. We overrule ground of error one.

In grounds of error two and three appellant challenges the constitutionality of TEX. PENAL CODE ANN. § 20.04, in that its provisions are vague as well as over-broad because the statute allows a first-degree felony conviction for conduct that is condemned as a second-degree felony, namely kidnapping, § 20.03. Restraint becomes abduction when it is done with intent to prevent the liberation of the victim. Carpenter v. State, 551 S.W.2d 724, 726 (Tex.Crim.App.1977). Appellant argues that persons of ordinary intelligence are not given adequate notice of the acts which would elevate the offense of kidnapping to aggravated kidnapping. Thus one might not know on which acts a jury relied in finding him guilty of aggravated kidnapping. This argument was rejected in Phillips v. State, 597 S.W.2d 929, 936 (Tex. Crim.App.1980). The Court stated that in order to be in a position to commit aggravated kidnapping, one must have committed kidnapping, which required a knowing or intentional abduction. The aggravating circumstances which raise the level of culpability must be the presence or absence of any one of the six specific intents at the time of the abduction. The ultimate issue is abduction with the requisite specific intent.

In the present case the specific intent to be proved was the intent to terrorize Beckwith. One’s acts are generally reliable circumstantial evidence of his intent. Id.; Bowers v. State, 570 S.W.2d 929 (Tex.Crim.App.1978). Words and acts may be probative evidence of intent. We find no impermissible vagueness or uncertainty m the language of TEX. PENAL CODE ANN. § 20.04(a)(5). The statute prohibits abduction with intent to terrorize the victim or a third person. There is no statutory definition of the term “terrorize.” Although a definition of the term “terrorize” was not given to the jury, we believe the jury could be presumed to apply the common and ordinary meaning. The statute in this case is not unconstitutionally vague.

Nor is it overbroad. A statute is overbroad when it sweeps within its reach constitutionally protected conduct. Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231 (1972). The statute would impose criminal liability for non-criminal conduct. In this case the jury must have found that appellant committed kidnapping, which requires an intentional or knowing abduction; in addition the jury must then have found that appellant kidnapped Beckwith with the intent to terrorize. The kidnapping was completed when appellant took the complainant by threatened use of deadly force to his pickup truck; thereafter the words and acts of appellant could be considered by the jury to determine whether those words and acts demonstrated his intent to terrorize her. The aggravating element must be found to be present to raise the level of culpability to come within the prohibition of subsection 5 of the aggravated kidnapping statute. We believe this narrows, rather than broadens, the scope of that offense. We find the statute not to be constitutionally overbroad. Grounds of error two and three are overruled.

We sustain ground of error four. We find that kidnapping, in the context of this case, was a lesser included offense of aggravated kidnapping. The lesser included offense of kidnapping was established by proof of less than all the facts required to establish the commission of the offense charged. TEX.CODE CRIM.PRO.ANN. art. 37.09(1) (Vernon 1981). Phillips v. State, supra. We can also apply the principles of Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981), that is, where there is testimony raising the issue that appellant, if guilty at all, is guilty only of the lesser included offense, to arrive at this decision. Although appellant did not testify, the testimony not only of the complainant, but also of the officers, raised that issue. Compare, Bush v. State, 358 S.W.2d 384, 385 (Tex.Crim.App.1962). We hold that the charge on kidnapping as a lesser included offense of aggravated kidnapping, applying the law to the facts of this case, should have been given to the jury when the appellant objected to its omission.

The judgment is reversed and the case remanded to the trial court.

DIAL, Justice,

dissenting.

I respectfully dissent.

I adopt the majority’s possible definitions of “terrorize,” i.e., fill with terror or anxiety, coerce by threat or violence, excite fear, rule by intimidation. The testimony of the complainant, as related in the majority opinion, was that the appellant did all of the above. The statute does not require continuous terrorizing, only that the abduction be with intent to terrorize. I find no conflicting evidence on appellant’s intent to terrorize. In the absence of a disputed factual element, a charge on the lesser included offense is not required. Royster v. State, 622 S.W.2d 442 (Tex.Crim.App. 1981).

Before the court en banc.

ON STATE’S MOTION FOR REHEARING

CADENA, Chief Justice.

The evidence is sufficient to sustain the conviction of aggravated kidnapping. The relevant evidence is set forth both in the original opinion by Justice Butts and the dissenting opinion by Justice Dial.

While it is true that the kidnapping statutes do not define the term “terrorize,” however, TEX. PENAL CODE ANN. § 22.-07(a)(2) (Vernon 1974), which deals with “terroristic threats,” includes in the category of terroristic threats a threat to commit any offense involving violence with the intent to place any person “in fear of imminent serious bodily injury.” This statute affords ample support for the conclusion that appellant’s threat to kill Beckwith if she attempted to escape constituted a threat to use deadly force which would reasonably create a feeling of terror in the mind of the threatened person. See Rodriguez v. State, 646 S.W.2d 524, 525-527 (Tex.App. — Houston [1st Dist.] 1982, no pet.).

The only disagreement on the Court concerning the proper disposition of this appeal concerns the failure of the trial court to grant appellant’s charge on the lesser included offense of kidnapping. As pointed out in the opinion by Justice Butts, which is not withdrawn by this opinion, the evidence produced by the State is sufficient to raise the issue of whether appellant abducted Beckwith with the intent to terrorize her. Beckwith testified that no threats were made after the first afternoon of her ordeal, immediately following her abduction. After the first night, neither her hands nor feet were bound. She remained unfettered while appellant “fixed” the rupture of the vehicle’s water hose. She sat on the tailgate of the vehicle, unfettered, while appellant helped another motorist make repairs to such other person’s vehicle. She was allowed to go to the rest room unbound, and change her clothes. Appellant introduced her to others as his daughter, and there is no evidence that at such time appellant had any weapon on his person or nearby. At the roadside park where appellant was arrested, Beckwith, unfettered, climbed a fence for the purpose of “going to the rest room.” Appellant did not accompany her. Other people were at the roadside park, and the evidence establishes that all weapons which might have been available to appellant were in the vehicle with Beckwith, not on his person.

Although appellant and Beckwith slept side by side two nights, he made no effort to molest her or touch her in any way, and there is no evidence that appellant had a weapon on his person while he was asleep. Appellant’s statements concerning his intention to “show her off” to his friends and to buy her a house and a car constitute, together with all the evidence outlined in the preceding paragraph, a lack of intent to terrorize. The police who arrested appellant testified that Beckwith was quiet and subdued, although she was relieved by the fact that she had been rescued. There is no evidence of undue fright on Beckwith’s part.

The motion for rehearing is overruled. The original opinion by Justice Butts stands as written, except that the second sentence in the second paragraph on page five of her opinion is deleted.

DIAL, Justice,

dissenting.

This is an appeal from a conviction for aggravated kidnapping. After a jury found appellant guilty, the trial court found both enhancement allegations in the indictment to be true and assessed his punishment at life imprisonment.

The indictment in this case alleges, in pertinent part:

... on or about the 13th day of August, 1980, CHARLES EDWARD PADGETT did then and there intentionally and knowingly abduct TRACY L. BECK-WITH, by THREATENING TO USE AND USING DEADLY FORCE with intent to TERRORIZE THE SAID TRACY L. BECKWITH; ...

The complainant was a 17-year-old who worked on the date of the offense at a Steak ’n Eggs restaurant on Harry Wurz-bach Road in San Antonio. It was customary for one waitress to be the only employee on duty at that time of day, which was about 3:00 p.m. A couple left the restaurant, leaving only the appellant present. A neighborhood ranger patrolman came in, drank a cup of coffee, and left. Appellant then asked Beckwith to “watch his table” while he went outside for a moment. After agreeing to this, the complainant went to the restroom. When she later stepped out of the restroom, appellant seized her by the arm and pressed a gun against her lower back.. She believed the gun to be a .45 caliber; it later proved to be a heavy pellet gun. She testified: Then he proceeded to threaten me, tell me that “I had better cooperate and if I didn’t, he would blow my brains out” and there was various bad language. When asked about the “various bad language” she replied that “in all my statements I left the vulgar out.” She recalled that he said, instead of “blow my brains out,” the words were, “I'm going to blow your shit away.” She was wearing a white uniform with an apron. He ordered her to remove the apron and leave it on the floor. Appellant also told her to leave her purse at the restaurant. He then walked her over to the cash register and told her to get the money, still with the gun against her back. She removed the bills only, less than $40.00, and he then put the gun in his waistband, placed his arm about her, and they walked out the door and went to the back parking lot.

Appellant put her in the front seat of his pickup, which had a Coleman camper on it, ordering her to put her head “down between my legs.” She said she complied because she was afraid he might hurt her or shoot her. She also stated he had a conversation with “two black men” in another vehicle away from the pickup at the time, but she did not see them. She said the other two men wanted appellant to give her to them, but he refused. The patrolman testified otherwise, stating there had been no other vehicles on the parking lot when he was there.

Appellant drove the truck away, and, she stated, he repeatedly told her he would “drop” her off soon. He advised that they were driving through the Post (Fort Sam Houston), but she did not raise her head. She was perspiring and he told her to wipe her face with a towel, “and I being stubborn, I didn’t want to ... I just didn’t want to bother to look up or anything, and so finally he pulled my head up [by her hair] and smacked me with his back hand ... and jabbed me in the side with a gun, telling me I had better do what he said.” She said she was afraid of him and wondered what he might do to her.

Appellant drove to Raymond Russell Park off Interstate 10 West. She said he put her in the camper and tied her hands with an electrical cord, her feet with cord from a hair blow dryer, and placed a handkerchief gag on her mouth. She stated there was no one around, although the defense pointed out this was summertime and a popular park. She said she did not attempt to cry out. She testified she threw the money (bills) at him in the cab while her head was down because she was “mad.” They left Raymond Russell Park while it was still daylight and went to a service station. She did not attempt to call out because he had told her to be quiet or he would kill her and the attendant. She said she believed him.

They continued on 1-10 West until they came to a roadside park with facilities. She had gone to sleep. When he was not in the cab, he “was always sitting in the back talking to her,” she said, about his old war days, ripping off places like Tiffany’s, girls he had taken, then raped, and it “turned into some big party” because the girls enjoyed it, people he had killed, taking girls and selling them. She said she did not believe all his stories.

He untied her feet when they arrived at the “comfort station,” and took off the mouth gag, leaving her hands tied. She went to sleep before he did and awoke after he did on the two nights she was with him. She related he lay by her each night, on the camper floor, but did not attempt to have sexual relations with her nor to contact her sexually. He wanted her to call him “daddy,” and he told her he was going to buy her a car, a house and a dog, and take her out and “show her off” to all his friends. He told a family at a rest stop she was his daughter.

The next morning they continued on to Ozona and stopped at a rest stop on a cliff [near Sheffield]. The water hose “broke,” and while he repaired that, appellant untied Beckwith’s hands. He had not threatened her anymore, she said, after the first day. She remained untied after that. She was going to try to escape, she said, on the second night, but she fell asleep again. When she woke the next morning, appellant was helping a trucker with truck repairs at the rest stop. She sat on the tailgate of the pickup. She and appellant were sitting later at a picnic table when the officers arrested appellant. [This was for an unrelated offense, and the officers had a warrant and a description of his truck]. The testimony of an officer showed that other people were at the rest stop when they arrived.

Beckwith admitted on cross-examination that she had “gone to the restroom” away from appellant and that she had changed her clothes. Further, she said she was alone much of the time in the camper and there were windows, but that she did not attempt to alert anyone that she was a captive. They went to a store and he bought snack food while she remained in the camper without a gag on her mouth the first evening. He untied her feet when they returned from the store. He permitted her to go to the restroom at the first comfort station. She stated she saw two knives in the camper and she knew their location in the camper. The arresting policemen found three knives in the camper. At the last rest stop, which had no facilities, appellant let her climb a fence to go to the “restroom”. The appellant did not testify nor offer other testimony.

Kidnapping, TEX. PENAL CODE ANN. § 20.03 (Vernon 1974) is the offense committed when a person intentionally or knowingly abducts another, and the jury charge so defined it in this case. The charge defined “abduct” by tracking the instant indictment and the statute.

Abduct, § 20.01 of the penal code, means to restrain a person with intent to prevent his liberation by:
(B) using or threatening to use deadly force.

It further defined restrain as restricting a person’s movements, so as to interfere substantially with his or her liberty, by moving him or her from one place to another or by confining him or her. § 20.01(1).

Deadly force was defined for the jury as force that is intended or known by the person acting to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury. See TEX. PENAL CODE ANN. § 9.01(3) (Vernon 1974).

Therefore, in the present case, the jury must initially find that the appellant intentionally or knowingly restrained Beckwith with intent to prevent her liberation by using or threatening to use deadly force [abduction]. These are the required elements of kidnapping. In order to elevate the offense to aggravated kidnapping the jury next must find that the kidnapping was committed with intent to terrorize Beckwith, § 20.04(a)(5), and the trial court so charged.

The term “terrorize” was not defined in the jury charge. A search of Texas cases reveals no definition nor, as yet, any conviction which rests upon subsection 5 of the aggravated kidnapping statute. We have drawn upon another source to guide us since appellant’s first ground of error attacks the sufficiency of the evidence to sustain a finding of appellant’s specific intent to terrorize Beckwith.

Webster’s Third New International Dictionary (1981), casts some light upon the meaning of “terrorize”: It may mean to fill with terror or anxiety; or to coerce by threat or violence. Perhaps, to excite fear; or to rule by intimidation. Id. at 2361. “Terrorism” may be the systematic use of terror as a means of coercion. It may create an atmosphere of threat or violence. Id. at 2361. Terror may denote stark fear; a state of intense fright or apprehension. Id. at 2361. Terrorize, as distinct from terrify, often implies an intentional affecting with terror. Id. at 912 (frighten). See also Arto v. State, 19 Tex.App. 126, 136 (1885) stating that terror means more than fright or alarm.

A person’s intent may be shown by his acts and his words. There was sufficient evidence for a jury to find an intent by appellant to terrorize the victim.

Appellant challenges the constitutionality of TEX. PENAL CODE ANN. § 20.04, in that its provisions are vague as well as overbroad because the statute allows a first-degree felony conviction for conduct that is condemned as a second-degree felony, namely kidnapping, § 20.03. Restraint becomes abduction when it is done with intent to prevent the liberation of the victim. Carpenter v. State, 551 S.W.2d 724, 726 (Tex.Crim.App.1977). Appellant argues that persons of ordinary intelligence are not given adequate notice of the acts which would elevate the offense of kidnapping to aggravated kidnapping.- Thus one might not know on which acts a jury relied in finding him guilty of aggravated kidnapping. This argument was rejected in Phillips v. State, 597 S.W.2d 929, 936 (Tex. Crim.App.1980). The court stated that in order to be in a position to commit aggravated kidnapping, one must have committed kidnapping, which required a knowing or intentional abduction. The aggravating circumstances which raise the level of culpability must be the presence of any one of the six specific intents at the time of the abduction. The ultimate issue is abduction with the requisite specific intent.

In the present case the specific intent to be proved was the intent to terrorize Beck-with. One’s acts are generally reliable circumstantial evidence of his intent. Id.; Bowers v. State, 570 S.W.2d 929, 933 (Tex.Crim.App.1978). Words and acts may be probative evidence of intent. There is no impermissible vagueness or uncertainty in the language of TEX. PENAL CODE ANN. § 20.04(a)(5). The statute prohibits abduction with intent to terrorize the victim or a third person. There is no statutory definition of the term “terrorize.” Although a definition of the term “terrorize” was not given to the jury, we believe the jury could be presumed to apply the common and ordinary meaning. The statute in this case is not unconstitutionally vague. Nor is it overbroad. A statute is overbroad when it sweeps within its reach constitutionally protected conduct. Grayned v. City of Rockford, 408 U.S. 104, 114-15, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222, 231 (1972). Additionally, an overbroad statute would impose criminal liability for non-criminal conduct. Id. In this case the jury must have found that appellant committed kidnapping, which requires an intentional or knowing abduction; in addition the jury must then have found that appellant kidnapped Beckwith with the intent to terrorize. The kidnapping was completed when appellant took the complainant by threatened use of deadly force to his pickup truck; thereafter the words and acts of appellant could be considered by the jury to determine whether those words and acts demonstrated his intent to terrorize her. The aggravating element must be found to be present to raise the level of culpability to come within the prohibition of subsection 5 of the aggravated kidnapping statute. We believe this narrows, rather than broadens, the scope of that offense. The statute is not constitutionally overbroad.

Appellant also complains of the trial court’s failure to charge on the lesser included offense of kidnapping. To warrant submission of the lesser included offense there must have been conflicting evidence on whether or not the kidnapping was done with intent to terrorize the complainant. As stated above, “terrorize” means to fill with terror or anxiety, coerce by threat or violence, excite fear, rule by intimidation. The testimony of the complainant was that the appellant did all of the above. The statute does not require continuous terrorizing, only that the abduction be with intent to terrorize. There is no conflicting evidence on appellant’s intent to terrorize. In the absence of a disputed factual element, a charge on the lesser included offense is not required. Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App.1981).

I would grant the motion for rehearing and affirm the judgment.

      . The caption to the 1979 amendment of Article 22.07 states that it is an act relating to “the offense of terroristic threats ...". Acts 1979, 66th Leg., ch. 530, p. 1113.


author: SHUMPERT, Justice.

text:
    E.G. HAAS, Appellant, v. TEXAS EMPLOYMENT COMMISSION, Appellee.
    No. 05-83-00561-CV.
    Court of Appeals of Texas, Dallas.
    June 20, 1984.

      Joselle M. Albracht, North Central Texas Legal Services Foundation, Inc., Dallas, for appellant.
    Charles J. Quaid, Ronald E. Massingill, Dallas, for appellee.
    Before STOREY, WHITHAM and SHUMPERT, JJ.
   SHUMPERT, Justice.

This appeal is from a judgment upholding a Texas Employment Commission decision that appellant Haas was not entitled to unemployment benefits because he was guilty of misconduct at work. We agree with the trial court that there was substantial evidence to support the Commission’s decision, and consequently, we affirm.

Texas Employment Commission decisions are reviewed under the “substantial evidence trial de novo” standard. TEX. REY. Cl V.STAT. ANN. art. 6252-13a § 21(g) (Vernon Supp.1984); Texas Employment Commission v. Bell Helicopter International Inc., 627 S.W.2d 524, 526 (Tex.App. — Fort Worth 1982, writ ref d n.r. e.); Instant Photo, Inc. v. Texas Employment Commission, 650 S.W.2d 196, 197 (Tex.App. — San Antonio 1983, no writ). This standard mandates a trial de novo without regard to the evidence heard by the Commission, unless evidence of the Commission hearing is properly introduced in the trial court. Instant Photo, 650 S.W.2d at 198. Under this standard, the issue is whether the evidence introduced before the trial court shows facts in existence, as of the time the agency decision was made, of such a substantial nature as to reasonably support the decision. Texas Employment Commission v. City of Houston, 616 S.W.2d 255, 258 (Tex.Civ. App. — Houston [1st Dist.]), writ ref'd n.r.e. per curiam, 618 S.W.2d 329 (Tex. 1981); Circuitronics v. Texas Employment Commission, 561 S.W.2d 555 (Tex.Civ.App.— Dallas 1978, writ ref’d n.r.e.). The appellate court’s sole function is to decide whether the evidence is such that reasonable minds could not have reached the conclusion the administrative body must have reached in order to justify its actions, Texas Employment Commission v. Riddick, 485 S.W.2d 849 (Tex.Civ.App. — Texarkana 1972, no writ), or stated differently, whether the Commission’s decision was arbitrary, unreasonable, capricious, and was without regard to the facts or the law. Circui-tronics, 561 S.W.2d at 557.

In the trial court here, a transcript of the Commission hearing was introduced. We may, therefore, consider that transcript as well as the statement of facts compiled in the trial court.

The Texas Employment Commission hearing officer found that Haas sold beer to minors and sold beer and wine to customers for less than the retail price. Haas denied that he ever sold beer to minors or gave discounts to customers, and argues that since his manager Ranous never actually saw him sell alcohol to a minor, that the decision to deny him benefits on the basis of misconduct was arbitrary, without regard to the facts, and was based on circumstantial suspicions only. He contends that the evidence of these alleged violations cannot support the finding of misconduct necessary to deny him unemployment benefits.

We hold that there was substantial evidence to support the Commission’s decision denying Haas benefits. Ranous testified at the Commission hearing that he saw Haas accept a student I.D. as identification for the sale of beer. Expanding on this at trial, Ranous stated that a young man entered the store and asked for a six pack of beer. Haas placed the beer on the counter. Ranous told Haas that he would need some identification from the customer. The customer produced a student I.D. which Haas examined and returned, continuing to ring up the sale. Ranous intervened to prevent the sale stating that a student I.D. was insufficient. The store policy was that the only acceptable identification was a driver’s license or a Department of Public Safety identification card, and that without proper identification, the store policy was to assume the person was a minor. All employees were informed of this policy, and Ra-nous testified that Haas was previously warned personally.

Another reason given- for Haas’ discharge was that he gave discounts to customers. Ranous saw Haas ring up a price which was considerably less than the marked price for some merchandise. The store policy was to not give discounts to anyone, and employees were reminded of this policy at least once.

TEX.REV.CIV.STAT.ANN. art. 5221b-3 (Vernon Supp.1984) provides in pertinent part:

An individual shall be disqualified for benefits:
(b) If the Commission finds he has been discharged for misconduct connected with his last work.

TEX.REV.CIV.STAT.ANN. art. 5221b-17 (Vernon Supp.1984) defines misconduct as follows:

(q) “Misconduct” means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure orderly work and the safety of employees, but does not include an act of misconduct that is in response to an unconscionable act of an employer or superior.

This definition of misconduct was added to the statute in 1981 and has not yet been construed in case law. Haas cites Texas Employment Commission v. Ryan, 481 S.W.2d 172, 176 (Tex.Civ.App. — Texarkana 1972, no writ), and City of Dallas v. Texas Employment Commission, 626 S.W.2d 549 (Tex.Civ.App. — Texarkana 1981, no writ), for the proposition that misconduct, sufficient to disqualify a person from receiving benefits, must be wanton, willful, or deliberate. We disagree with Haas’ contention. Those cases are not controlling here because the legislature has now defined what constitutes misconduct. We hold that to be guilty of misconduct under art. 5221b-17(q), the performance of one of the prohibited acts listed in that section is sufficient, and it need not be shown that the behavior was wanton, willful, or deliberate, because the statute does not use that terminology.

Haas’ “sale” to a minor constituted misconduct under the statute because it violated a policy or rule adopted to ensure orderly work and jeopardized the property of others. The reason for the rule requiring a certain type of identification is to have a clear standard for employees to follow in determining whether identification is sufficient. This is necessary to prevent the sale of alcohol to minors, the occurrence of which could cost the store its liquor license. Haas’ failure to ask for proper identification jeopardized the property, i.e. the liquor license, of the store owner. It does not matter that the “sale” was not completed. The testimony shows that the “sale” would have been completed had Ranous not intervened.

Haas’s ringing up of a lower than retail price constituted misconduct because it was mismanagement of his position as a clerk if it was intentional, and neglect jeopardizing the property of the store owner if unintentional. We hold that the Committee’s decision disqualifying Haas from unemployment benefits was reasonably supported by substantial evidence, and was not arbitrary, unreasonable, capricious, or made without regard to the law or the facts.

Appellant also contends that he was denied procedural due process. He contends that the employer’s testimony regarding alleged instances of misconduct that were not mentioned in the Employer’s Response to Initial Claim denied him due process because he was not adequately prepared to respond to these allegations. We disagree that there was a denial of due process.

Procedural due process, including a meaningful evidentiary hearing with the right to be heard, upon timely and adequate notice, is required in administrative agency proceedings. Goldberg v. Kelley, 397 U.S. 254, 267-268, 90 S.Ct. 1011, 1020, 25 L.Ed.2d 287 (1970); Lewis v. Metropolitan Savings & Loan Assn., 550 S.W.2d 11, 13 (Tex.1977). Haas was ultimately denied benefits for the incidents of which he had notice, and not for the other instances about which there was testimony. Consequently, there was no denial of procedural due process.

The judgment is affirmed.


author: CADENA, Chief Justice.

text:
    CHARLES SCHREINER BANK, OF KERRVILLE, a State Bank, First National Bank of Kerrville, and National Bank of Commerce of Kerrville, Both National Banking Associations: Raymond F. Barker, Henry H. Wied, and Ben R. Low, Appellants, v. KERRVILLE INDEPENDENT SCHOOL DISTRICT, and the City of Kerrville, Texas, a Municipal Corporation: Clyde H. Greer, Superintendent of the Kerrville Independent School District, in His Official Capacity; Juanita Maples, as Tax Assessor-Collector for the Kerrville Independent School District and the City of Kerrville, Texas, in Her Official Capacity; and Manly W. Cooper, Mayor of the City of Kerrville, Texas, in His Official Capacity, Appellees.
    No. 16687.
    Court of Appeals of Texas, San Antonio.
    July 31, 1984.
    Rehearing Denied Dec. 12, 1984.

      David Jackson, Wallace & Jackson, Darrell G. Lochte, Kerrville, Joe Burkett, Jr., Kerrville, for appellants.
    Thomas S. Terrell, Kerrville, Robert M. Huey, McCreary & Huey, Austin, for appel-lees.
    Before CADENA, C.J., and ESQUIVEL and DIAL, JJ.
   OPINION

CADENA, Chief Justice.

Plaintiffs in this case appeal from a judgment denying them injunctive and other relief to prevent enforcement of a tax plan which imposes a tax on obligations of the United States Government declared exempt from taxation by 31 U.S.C. § 742. The specific complaint is that the taxing authorities, in determining the taxable value of shares of stock in three national banks, included the government obligations as part of the assets of the banks.

The suit was filed by three Kerrville banks, Charles Schreiner National Bank, First National Bank and National Bank of Commerce, joined by three individuals, each of whom owns stock in one of the banks. The three shareholders sued individually and as representatives of a class composed of all the shareholders in each of the three banks. The trial court’s determination that the suit should proceed as a class action is not challenged here.

Defendants are the Kerrville Independent School District, the City of Kerrville, Clyde H. Greer, superintendent of the Kerrville Independent School District, Manley H. Cooper, mayor of Kerrville, and Juanita Maples, tax assessor-collector for both the school district and the city. The three individual defendants are sued only in their official capacities.

The assessor determined the value of the shares of stock by using the “equity capital formula,” which is “the usual and customary method used in Texas to arrive at such value” for property tax purposes. City of Midland v. Midland National Bank, 607 S.W.2d 303, 304 (Tex.Civ. App. — El Paso 1980, writ ref’d n.r.e.). The tax was computed by determining the total amount of the capital assets of each bank and subtracting from that figure the bank’s liabilities and the assessed value of the real estate owned by the bank. The trial court’s conclusion of law that the United States obligations are exempt from taxation and that the assessor acted illegally in including the value of such obligations as part of the capital assets of each bank is clearly correct. The formula adopted by the assessor in this case “plainly ... takes into account, at least indirectly, the federal obligations that constitute a part of the bank’s assets,” in violation of 31 U.S.C. § 742. American Bank & Trust Co. v. Dallas County, 463 U.S. 855, 103 S.Ct. 3369, 77 L.Ed.2d 1072, 1079 (1983).

Despite its conclusion concerning the illegal action of the assessor, the trial court denied plaintiffs relief because they had not established “substantial injury.” In view of the trial court’s finding that book value “cannot be equated with market value,” it is apparent that the inability of the court to find substantial injury was due to plaintiffs failure to establish the market value of the stock.

In City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 417 (1954), the Texas Supreme Court, after pointing out that the procedures adopted by the taxing authority were “wholly unlawful and fundamentally wrong,” said that to obtain relief from taxes computed by “the use of an arbitrary, illegal and fundamentally erroneous plan of evaluation, the taxpayer must show substantial injury.” Similar language is found in State v. Whittenburg, 154 Tex. 205, 265 S.W.2d 569, 573 (1954). No case has given a precise definition of “substantial injury,” but both Cannon and Whittenburg indicate that unless the taxpayer shows that his property was actually assessed at a substantially higher percentage of its market value than the percentage used for other property no relief will be granted. If such showing is made, relief will be limited to the amount or extent of the excess.

Ordinarily shares of stock in banks, particularly in our smaller cities, are but rarely sold, so that what is considered to be the best method of determining market value, i.e., comparable sales, is not available. In this case the assessor candidly admitted that she was unable to find any information which would furnish a reliable basis for determining market value and, consequently, she used book value. Her testimony was that she proceeded “to establish what the fair market value would be by the use of book value.” She testified that the only records of transfers of bank stock which she unearthed were found in probate records. Her testimony reveals that, in her opinion, the method she used resulted in the determination of “reasonable market value.” “Book value,” of course, is the same as the value determined by application of the equity capital formula.

In view of the applicable law, the traditional concept of market value is irrelevant in determining the value of bank shares for tax purposes. Even if there were brisk buying and selling of such shares on a daily basis, the market value determined on the basis of such transactions would be completely useless for the purpose of determining the value of such shares for property tax purposes. Clearly, the total value of the bank’s assets would receive substantial consideration by one willing, but not forced to sell, and one willing, but not forced, to buy. Such market value would necessarily be based upon a consideration of the government obligations held by the bank, with the result that a tax computation based on such “market value” would necessarily run afoul of the federal statute.

Since, because of the scarcity of sales as well as the provisions of both state and federal law, ascertainment of the market value of bank stock is, at least from a practical standpoint, impossible, it is not surprising that the assessor in this case, like assessors throughout Texas, based her assessment on book value. There is no other feasible method for determining the value of such stock.

It is generally believed, and the assessor in this case so testified, that market value is greater than book value. Although the truth of this statement at any given time necessarily depends on economic conditions at such time, the evidence in this case makes its application extremely doubtful. According to the assessor, as to each bank the book value of the real estate substantially exceeded its market value as determined by her. In the case of the Schreiner Bank, for example, the value of the real estate as shown by the books was $1,883,-000.00, but, according to the assessor, the market value of such real estate was $1,312,033.00. Therefore, the book value of the real estate exceeded its market value by $570,967.00, or slightly more than 43%. There is no evidence that the other assets of the bank were carried on the books at figures in excess of market value. In the case of the First National Bank, the book value of the real estate was $1,944,000.00, while, according to the tax assessor, its market value was $998,083.00, so that the book value exceeded market value by $945,-917.00, or almost 95%. In the case of the National Bank of Commerce, the book value of the real estate was $446,000.00, while its market value, according to the assessor, was $229,144.00. The book value, then, exceeded market value by $216,856.00, or more than 94%. The evidence in this case furnishes no basis for concluding that the book value of the equity capital of the bank was less than its market value.

In Cannon, supra, the Texas Supreme Court, recognizing that it was placing an extremely onerous burden on the taxpayer, said:

The difficulties to be encountered in making the necessary proof as a basis for relief is the penalty the taxpayer must pay for sitting idly by while taxing authorities put into effect a plan of taxation which deliberately permits certain classes of property to escape taxation.

271 S.W.2d at 417.

Apparently, once the tax plan has been put into effect, the taxpayer has the burden, in a case where property has been omitted from the tax rolls, of showing not only that certain property has completely escaped taxation, but also of placing a value on the omitted property, calculating the reduction in the tax rate if the property has been taxed, and determining the amount of money that he would have saved. State v. Federal Land Bank, 160 Tex. 282, 329 S.W.2d 847, 850 (1959). The burden is impossible to discharge, since it is doubtful that the assessor himself knows how much property has been omitted or, if he has such knowledge, the value of such property. For example, in Campbell v. Bexar, 567 S.W.2d 852 (Tex.Civ.App. — San Antonio 1978, no writ), this Court denied relief because the taxpayer, who was complaining of the omission of household furniture and appliances, as well as automobiles, from the tax rolls was denied relief because he had failed to prove substantial injury. This decision was reached although the Court recognized that, from a practical standpoint, the assessor, with his 180 employees, could not acquire information concerning the extent and value of the omitted property. Where a court requires a lonely taxpayer to do that which 181 taxing officials could not do is, from a practical standpoint, the same as refusing to make any effort to require that taxing officials abide by constitutional and statutory mandates. Such rules effectively prevent success by a complaining taxpayer.

In any event, the case before us is not one in which, as in Cannon, the taxpayer is complaining because property was omitted from the tax rolls. Nor is the complaint one of inequality resulting in discrimination because plaintiffs’ property was assessed at a higher percentage of market value than other property. The complaint is a simple one. The school district and the city have attempted to tax property which is not subject to taxation, although they are doing it under the guise of taxing non-exempt property by including the value of the exempt property in computing the value of the property which is subject to taxation. If the “substantial injury” rule is applicable in this case, it would mean that taxing authorities may tax all exempt property so long as the tax imposed is not substantial. If the taxing authorities are prudent, the complaining taxpayer would be lectured by the court, as was the taxpayer in Federal Land Bank, supra, that “since the tax on his exempt property amounted to only 41 cents, it is difficult to see substantial injury to any taxpayer under these circumstances.” 329 S.W.2d at 850. Of course, 41 cents here and 41 cents there can add up to hundreds of thousands, if not millions, of dollars illegally extracted from the taxpayers, all, of course, without imposing substantial hardship on any one taxpayer. The taxing agencies profit handsomely from their illegal activities while the courts content themselves with adjusting the judicial blindfold to insure that the old adage, “you can’t fight city hall,” remains true, at least in the area of taxation. Our courts have not held that proof of substantial injury is required in every case.

Where the taxing scheme is “wholly unlawful and fundamentally wrong” because it places a tax on exempt property, there is no justification for judicial tolerance and eye-winking disguised as procedural rules. Even in cases where the complaint is discrimination resulting from omission of property or the assessment of plaintiffs property at a higher percentage of market value than that at which other property was assessed, the reluctance of the courts to interfere cannot be justified. The decisions placing impossible burdens on the taxpayer are patently result-oriented. The reluctance to demolish the financial structures of governmental agencies may be understandable, but this does not justify the judicial inertia which the decisions reflect. Our courts can take steps to insure compliance by making their decisions prospective. This can be easily achieved by holding that while the particular illegal and fundamentally wrong tax scheme before the court will be allowed to continue in operation for the particular tax year involved, similar tax schemes adopted in the future will be struck down.

Where the taxing plan is “wholly unlawful and fundamentally wrong” because it results in the taxing of exempt property, there is no justification for judicial blindness and tolerance disguised as rules relating to burden of proof. Absent justification for rules shielding taxing agencies which impose illegal taxes, the substantial injury requirement should not be extended to cases of taxation of exempt property.

As already pointed out, the Cannon requirement of proof of substantial injury was explained as punishment of the taxpayer who sits idly by and allows an illegal plan to go into effect. In this case, the taxpayers did not sit “idly by.” The trial court found that the plaintiffs did not sit idly by but acted diligently and that the suit was timely filed. This finding is supported by the evidence.

The Board of Equalization convened on July 14, and adjourned two days later, July 16. The members commented that they were sympathetic to the situation, would consider the presentation made by plaintiffs and would let plaintiffs know of their decision. The Board adjourned that same day without notifying plaintiffs of their decision. On July 18 the assessor notified plaintiffs that while the Board understood the need for relief, the Board had left the values submitted by the assessor unchanged. This suit was filed on July 29, 13 days after the Board adjourned and 11 days after plaintiffs were notified that their protest had been rejected.

We cannot hold that plaintiffs were not justified in relying on the Board’s promise that they would be notified when a decision was reached and in withholding the filing of suit until they were notified of a decision. Taxing authorities should not be allowed to escape an injunction or mandamus attack on their taxing schemes by lulling the taxpayers into a false sense of security. Cf Childs v. Reunion Bank, 587 S.W.2d 466 (Tex.Civ.App. — Dallas 1979, writ ref’d n.r.e.).

There are decisions, such as Dorman v. Ferris Independent School District, 581 S.W.2d 783 (Tex.Civ.App. — Waco 1979, writ ref’d n.r.e.) which hold that a suit seeking injunctive relief is not timely filed if it is filed after the Board has certified the tax rolls. As defendants point out, these cases do not speak of diligence on the part of the taxpayer. They simply hold that suit filed after the rolls have been certified is a suit filed after the tax plan has been put into operation and the substantial injury rule is applicable. Defendants argue that, in view of such decisions, whether the taxpayer acted diligently is irrelevant, despite the holding in Childs. In the alternative, they urge that Childs must be limited to its peculiar facts and applied only where the taxing authorities have led the taxpayer to believe that the tax plan would not be implemented until notification of the Board’s decision had been given. We do not agree.

It is difficult to justify the requirement that a taxpayer file suit before the rolls are certified or else be saddled with the burden of proving substantial injury. It might be possible to justify the imposition of such burden upon the taxing agency when the rolls have been certified, the tax rate has been set, tax statements have been mailed and collection of taxes has begun. In such a case it can be argued that the taxing agency has begun to rely on the revenues being generated. But where, as here, the tax rate has not been set and the suit if filed before the taxes are even due, the reliance argument is unpersuasive.

There are practical problems involved which may make it virtually impossible for the taxpayer to sue before the rolls are approved. For example, in the case before us, plaintiffs were able to obtain a hearing before the Board only hours before the Board approved the rolls and adjourned without notifying plaintiffs of any decision concerning their complaint. In order to comply with judicial notions concerning the time to sue without being penalized by imposition of the Cannon, sanctions, they would have had to rush to the court house before they learned of the Board’s decision. It is a strange rule which requires a taxpayer to initiate a judicial challenge to the action of a quasi-administrative decision before the administrative agency has made a decision. In order to file suit before the rolls were certified in this case, plaintiffs would have to presume that the Board would act illegally and disregard the federal statute, in the face of the presumption that governmental authorities will discharge their duties according to law. Until plaintiffs learned of the Board’s decision,

plaintiffs were in no position to solemnly allege, in a petition for injunction or mandamus, that the taxing authorities had violated the law or were threatening to violate the law. Nothing occurred during the hearing before the Board which would furnish a basis for the conclusion that the Board intended to violate the law. In fact, the evidence supports the conclusion that each Board member indicated a sympathetic attitude concerning plaintiffs’ complaints. Until the Board certified the roll, plaintiffs had no basis for believing that the Board had acted illegally. The date of initiation of legal proceedings has little relation to the possibility of interference with the collection process. It is highly doubtful if, in this case, for example, a suit filed on July 16 instead of July 29, would have been finally determined before the tax rate was set, statements mailed and revenues collected. M.G. Yudof, The Property Tax in Texas under State and Federal Law, 51 TEX.L.REV. 885, 905-6 (1973). There is, therefore, no logical or practical reason for making a distinction in favor of plaintiffs who sue before certification of the rolls. In the case before us, what would have been gained if the suit had been filed minutes before the rolls were certified? What disadvantage was created by the fact that the suit was filed 13 days later? The rule which requires a taxpayer to challenge an assessment before he knows what the official assessment is makes no sense.

It should be sufficient if the suit is filed before the governing body sets the tax rate, since it is only in the determination of the tax rate that the governing body truly relies on the assessment rolls. Atlantic Richfield Co. v. Warren Independent School District, 453 S.W.2d 190, 195 (Tex.Civ.App.—Beaumont 1970, writ ref’d n.r.e.) supports the conclusion that a suit filed before collection had begun is filed before the tax plan has been put into effect.

The cases relied on by defendants assume that a tax plan has been put into operation when the assessment rolls are approved. This theory is unacceptable unless we accept as a “tax plan” a situation in which the “plan” consists solely of the approval of the assessment rolls. Such a “plan” is clearly incomplete until decisions have been made concerning the tax rate. Certification of the assessment rolls is but one step in the procedure which leads to the imposition of a tax, and it cannot be seriously argued that a “tax plan” has been put into operation before the tax rate has been established and the taxpayer knows what his tax liability will be under the “plan.”

A tax plan, if it deserves to be called a “plan,” contemplates the raising of a given amount of revenue which is required to support a budget. A Board of Equalization is not concerned with the amount of money to be raised. Its sole concern is to insure that the assessments are proper and truly reflect “market value.” It would clearly be improper, if not blatantly illegal, for the Board to base its assessments on the needs of the governmental agency involved, since the monetary needs of the governmental agency are irrelevant in the process of determining proper assessments. The amount of money required to finance the operations of a school district or a city is a question to be determined by the governing board of such district or municipality, and not by a body whose sole concern is with value of property. Determinations concerning the value or property subject to taxation cannot be considered a “tax plan,” since such determinations, have nothing to do with determining the method by which the required revenue is to be raised.

A tax “plan” which requires the taxation of exempt property is blantantly illegal. It is not only “fundamentally” wrong, it is indefensibly wrong. There is no reason for courts to protect such illegal action by penalizing the taxpayer and rewarding the wrongdoer by resort to judicially-invented doctrines designed to insure that government collects taxes illegally imposed.

We conclude that the trial court should have invalidated the illegal assessments.

The judgment of the trial court is reversed, and the cause is remanded to the trial court for entry of a judgment in accordance with this opinion. Nothing herein shall be interpreted as being a denial of the right of taxing agencies to reassess the shares of stock in accordance with applicable law.

The judgment of the trial court is reversed and the cause is remanded with instructions.

      . Subtraction of the assessed value of the real estate is required because TEX.REV.CIV.STAT. ANN. art. 7166 (Vernon 1960), in effect at all times pertinent to this case, required that bank shares be taxed only for the difference between their actual cash value and the proportionate amount per share at which the bank’s real estate is assessed. Since 1982, this provision for taxation of shares of stock in banks is found, expressed in simpler language, in TEX.TAX CODE ANN. § 23.11 (1982).

      . 31 U.S.C., as amended in 1959, provides:
      All stocks, bonds, Treasury Notes, and other obligations of the United States, shall be exempt from taxation by or under State or municipal or local authority. This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax, except nondiscriminatory franchise or other nonproperty taxes in lieu thereof imposed on corporations and except estate taxes or inheritance taxes.

      .In enacting this statute, “Congress intended ... to invalidate all taxes measured directly or indirectly by the value of federal obligations, except those specified in the amendment.” 463 • u.S. at -, 103 S.Ct. at 3377, 77 L.Ed.2d at 1082.

      . The plan attempts to tax $15,485,000.00 in United States obligations owned by the First National Bank; $15,481,000.00 of such obligations owned by the Charles Schreiner Bank; and $50,000.00 owned by the National Bank of Commerce. If the assessor had obeyed the mandate of federal statute, the assessed value of the stock of the First National Bank, and the Charles Schreiner Bank would have been a negative figure, while in the case of the National Bank of Commerce such assessed value would have been $1,220,856.00 instead of $1,270,-856.00.