author: McDONALD, Chief Justice.

text:
    Jesus BELTRAN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-133-CR.
    Court of Appeals of Texas, Waco.
    Dec. 13, 1984.

      Santos R. Beltran, San Antonio, for appellant.
    Thomas B. Sehon, Dist. Atty., Marlin, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Beltran from conviction for felony Driving While Intoxicated (on the basis of a prior conviction), for which he was assessed 2 years confinement in the Texas Department of Corrections.

Defendant appeals on 5 Grounds of Error.

Ground 1 asserts: “The trial court was without jurisdiction to try the defendant”. Under this ground defendant complains the record devoid of any documents or testimony that he had previously been convicted of DWI.

Exhibit 1 was admitted into evidence by agreement of counsel. Such exhibit is in the record and contains certified copies of the complaint, information, sentence granting probation, order revoking probation, and jail sentence of defendant in a DWI case in McLennan County (the prior conviction alleged in the indictment in this case).

Ground 1 is overruled.

Ground 2 asserts: “The trial court erred in overruling defendant’s motion for instructed verdict as there was insufficient proof of defendant’s guilt”. Under this ground defendant asserts the State’s principal witness, Trooper Holmes (the arresting officer) was not sworn as a witness.

The record does reflect that Trooper Holmes was sworn as a witness. In any event, if he was not sworn, such error was waived by failure of defendant to object to his testimony. Thomas Trammell & Co. v. Mount, S.Ct., 4 S.W. 377; Jefco Inc. v. Lewis, CCA (Austin) NRE, 520 S.W.2d 915; Beck v. State, CA (El Paso) 647 S.W.2d 55.

Ground 2 is overruled.

Ground 3 asserts: “The trial court erred in admitting opinion testimony of the witness, Elmer Weber, as to the operational condition of the breathalyzer test given defendant over defendant’s objection”.

The witness Weber testified he was a certified technical supervisor of breath testing equipment for the Texas Department of Public Safety; that he has responsibility of checking the breath test instruments in a 13-county area surrounding Waco and including Falls County; that he has a B.S. degree; that he has worked as a chemist; has held his present position 12 years; and that he was last certified as a technical supervisor in 1980.

He further testified the breathalyzer instrument defendant was tested by was working correctly on February 18, 1982; and on March 18, 1983, the latter date just 4 days after defendant was arrested.

The testimony was admissible.

Ground 3 is overruled.

Ground 4 asserts: “The defendant was not apprised of his right to refuse to take the breathalyzer test, depriving him of his constitutional right to counsel and to remain silent”.

Trooper Holmes, the arresting officer, testified defendant agreed to take the breathalyzer test after having had explained to him the implied consent law and having been read his rights.

Taking of a breathalyzer test with the consent of defendant accused of DWI violates none of his rights. Hager v. State, Ct.Crim.Appls, 487 S.W.2d 723.

Ground 4 is overruled.

Ground 5 asserts: “Defendant was without effective assistance of counsel”.

The standard of “reasonably effective assistance of counsel” is used to test the adequacy of representation afforded an accused by counsel, when performance is to be judged by the Sixth Amendment right to assistance of counsel. Ex parte Duffy, Ct.Crim.Appls, 607 S.W.2d 507.

Prom the record as a whole we conclude defendant was afforded a much higher representation in this case than just “reasonably effective assistance”.

Ground 5 is overruled.

AFFIRMED.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Margarita DE LEON, Appellant, v. STATE of Texas, Appellee.
    No. 13-82-115-CR.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 20, 1984.

      Arnold X. Medina, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
   OPINION

PER CURIAM.

This is an appeal from a conviction for murder. Trial was to a jury on a plea of not guilty. After conviction, the jury assessed punishment at confinement in the Texas Department of Correction for 35 years.

Appellant and her husband, Cresencio De Leon, were jointly indicted for the murder of Angel Love De Leon, their child, by omitting to provide food and medical care for him when they had a statutory duty, as parents, to so provide. After the cases were severed, a trial before a jury resulted in appellant’s conviction and sentence. Cresencio De Leon’s case is before this Court in Cause No. 13-82-203-CR.

In ground of error number one, appellant challenges the sufficiency of the evidence to support her conviction for murder. In considering this ground of error, this Court must review the evidence in the light most favorable to the jury’s verdict. Firo v. State, 654 S.W.2d 503 (Tex.App.—Corpus Christi 1983), affirmed 657 S.W.2d 141 (Tex.Crim.App.1983).

The omission to perform statutory parental duties resulting in serious physical deficiency will constitute an offense, if the omission has the necessary mens rea. Pickering v. State, 596 S.W.2d 124 (Tex.Crim.App.1980); Ahearn v. State, 588 S.W.2d 827 (Tex.Crim.App.1979); and Harrington v. State, 547 S.W.2d 616 (Tex.Crim.App.1977). The omission by a parent to perform his statutory parental duty which results in the death of the child, if done intentionally and knowingly, is murder.

The evidence in this case consisted of the testimony of several neighbors and relatives of appellant, photographs of the deceased child taken when he was in apparent good health and immediately after his death, testimony of the medical doctor who had delivered the child and had examined or treated him prior to his death, testimony of police officers who observed the scene when the child was found dead, testimony of the Nueces County Medical Examiner and the written statement of appellant. A review of the evidence convinces us that it is sufficient to support the conviction. Such evidence shows that appellant was the mother of the deceased, that he was a child born February 11, 1980, that he was in need of medical attention and food, that appellant knew of such needs and did not provide for such needs and that the failure to so provide was intentional and knowing and occurred in Nueces County, Texas, at or about the time alleged. Dr. Rupp testified that the child died as a direct result of malnutrition and dehydration. Excerpts from Dr. Rupp’s testimony reflect the conditions as described in most of the evidence:

“... the body was clad in a paper diaper and a knit shirt, and the body was that of a poorly developed, poorly nourished white male infant that measured thirty inches in length and weighed an estimated fourteen pounds but appeared the recorded age of seventeen months. The body hair was black and sparse. The eyes were sunken in their sockets. The eyes were brown. The pupils were round, regular and equal. The teeth were natural and in the process of erupting. The body surfaces were poorly cared for, and the subject was literally skin and bones, and was malnourished and dehydrated. ... externally — the external examination showed ant and roach erosion marks on the neck, the cheeks, the ears, the tips of the toes and fingers. There were bruises on the ears. There was a bruise across the bridge of the nose. There were bruises on the forehead. There were bruises on the cheeks. There were — and the bruises appeared to be of varying ages. The examination of the buccal mucosa, which is the internal surface of the mouth under the lips and gums, showed a laceration and ulceration of the frenulum, which is that little membrane in the middle of our upper lip, as well as a large lacerated and ulcerated area along the upper part of the left lip. There were also on the lower lip some contusions, contusion of the gingiva, lacerated and ulcerated area on the buccal mucosa of the lower lip, and there was a small bruise on the penis. As far as the internal examination was concerned, the subject was dehydrated. There was no congenital heart disease. No tumors or anything like that. All of the organs were essentially normal, and in the intestinal tract there were a few small masses of hard fecal material, again, confirming the dehydration or lack of water in his body.... The general state of nutrition, the bruising of the body, are consistent with the battered child type syndrome. The ant erosion marks and the roach marks on the body where the skin has been eaten away by the bugs indicates that the child was in such a weakened state from his malnutrition and dehydration that he couldn’t brush the bugs away that were eating on it prior to his death.”

Appellant’s first point of error is overruled.

Appellant’s second ground of error is that the trial court erred in overruling her motion to suppress her confession because it was coerced and involuntary. Appellant argues that the totality of circumstances suggest that, due to her abnormal condition (nine months pregnant, delivery imminent), her will was overcome by the police officers. She delivered twins the next day after giving her statement to police.

A trial court’s findings in a hearing on the issue of the voluntariness of a confession will not be overturned when there is evidence to support the findings. Barton v. State, 605 S.W.2d 605 (Tex.Crim.App.1980). The general rule is that, before a confession can be admitted into evidence, it must be shown to have been freely and voluntarily given. The appellant told the police officer at least twice that she wanted to tell what happened to her baby, and thus, indicated her willingness to make a statement. The record shows there were no threats or coercion used by the police officers in taking her statement. Hawkins v. State, 613 S.W.2d 720 (Tex.Crim.App.1981), and Moon v. State, 607 S.W.2d 569 (Tex.Crim.App.1980).

In evaluating confessions for vol-untariness, the totality of circumstances is the standard test. Berry v. State, 582 S.W.2d 463 (Tex.Crim.App.1979). However, appellant has not even established the least intimidation by the officers. In Rumbaugh v. State, 629 S.W.2d 747 (Tex.Crim.App.1982), the appellant argued that he was not his normal self among other challenges to his confession being admitted. In that ease, it was held that the trial judge is the sole judge of the credibility of the witnesses at a hearing on the voluntariness of a confession. The evidence in the record supports a finding that the confession was freely and voluntarily given. Appellant’s second ground of error is overruled.

Appellant’s third ground of error is the trial court’s failure to make findings of fact and conclusions of law on appellant’s confession. It was necessary to abate the appeal until the trial court forwarded its finding of facts and conclusions of law. Since findings of fact and conclusions of law have been filed by the trial court, the record does not support appellant’s ground of error. Stone v. State, 583 S.W.2d 410 (Tex.Crim.App.1979); McKittrick v. State, 541 S.W.2d 177 (Tex.Crim.App.1976); Trevino v. State, 641 S.W.2d 626 (Tex.App.—Corpus Christi 1982, pet. ref’d). The third ground of error is overruled.

By ground of error number four, appellant claims error in the trial court’s action of overruling her motion to quash the indictment because it failed to allege all the elements necessary to establish that appellant had a duty to provide food and medical care to the alleged victim.

At the outset, we acknowledge that there are two functions of the indictment, to wit: to give adequate notice to the defendant and to invoke the jurisdiction of the trial court. These two functions are distinct and the sufficiency of the pleadings to fulfill one or the other of these functions are subject to different rules for presentation and different measures for validity. Drumm v. State, 560 S.W.2d 944 (Tex.Crim.App.1977). When an accused makes proper and timely complaint concerning the adequacy of the indictment to give him sufficient notice on which to prepare a defense, examination of the indictment must be made from the perspective of the accused, and in light of the presumption of innocence. Drumm v. State, supra; Coleman v. State, 643 S.W.2d 124 (Tex.Crim.App.1982). Viewed in this light, if the notice is not sufficient to adequately advise the accused of the charge against him and to enable him to properly prepare his defense, the indictment should be quashed. Jeffers v. State, 646 S.W.2d 185 (Tex.Crim.App.1981).

In order to invoke the benefit of this protection, it is required that the accused specifically point out to the trial court the manner in which the notice is deficient. Jones v. State, 672 S.W.2d 798 (Tex.Crim.App.1984). American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Crim.App.1974). A careful review of appellant’s Motion to Quash fails to reveal that the complaint raised by her ground of error number four was raised specifically in such motion. Ground of error number four is therefore overruled.

Even so, we must consider whether the indictment is fundamentally sufficient to invoke the jurisdiction of the trial court so as to meet the second function of a charging instrument under Drumm v. State, 560 S.W.2d 944 (Tex.Crim.App.1977).

Without stating the formalities, the indictment alleges that appellant and the co-indictee on or about the 3rd day of August, A.D. 1981,

“did then and there intentionally and knowingly cause the death of Angel Love De Leon, their child, by omitting to perform the following acts, to wit: providing Angel Love De Leon with food and providing Angel Love De Leon with medical care, when they had a duty to perform said acts under Title 2 Chapter, Section 12.04(3) Texas Family Code in that they were then and there the parents of the said Angel Love De Leon as defined by said Title 2, Chapter 12, Section 12.04 Texas Family Code-

A review of TEX.FAM.CODE ANN. § 12.04 (Vernon 1975) reveals that it covers the rights, privileges and duties of a parent, but in no way seeks to define the term “parents.” If the defect in the charging instrument is of such a degree as to charge no offense against the law, it is void or fundamentally defective and such a defect may be considered for the first time on appeal. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Crim.App.1974). In Ronk v. State, 544 S.W.2d 123 (Tex.Crim.App.1976), the Court considered an indictment involving an offense similar to the one in this case. The Court pointed out that the omission to perform an act does not constitute an offense unless a statute provides that the omission is an offense or that the person has a duty to perform the act. TEX.PENAL CODE ANN. § 6.01(c) (Vernon 1974). It further pointed out that the only persons charged with the statutory duties, listed under Section 12.04, Family Code are the parents as that term is defined in Section 11.01, Texas Family Code. Since the indictment in Ronk, supra, failed to allege a relationship between the accused under the statutory duty (to secure medical treatment for the child), the indictment was held fundamentally defective and was dismissed.

In Ex parte Moss, 598 S.W.2d 877 (Tex.Crim.App.1980) it was held that where an indictment alleged that “... Linda Moss was then and there the parent of Jack Moss, against the peace and dignity of the State” such allegation was fundamentally sufficient to show that Jack Moss was a child as defined in TEX.FAM.CODE ANN. § 11.01(1) (Vernon 1975) and that the recitation that the accused was a “parent” meant a “parent” as defined in TEX.FAM. CODE ANN. § 11.01(3) (Vernon 1975).

In the case at bar, there was no need to define the term “parent” and the attempt to do so by adding the emphasized language is considered as surplusage. Collins v. State, 500 S.W.2d 168 (Tex.Crim.App.1973). We hold the indictment is sufficient to invoke the jurisdiction of the trial court and to sustain the conviction.

Finding no error, the judgment of the trial court is AFFIRMED.


text:
    Cresencio DE LEON, Appellant, v. STATE of Texas, Appellee.
    No. 13-82-203-CR.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 20, 1984.

      Jon Bonilla, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
   OPINION

PER CURIAM.

This is an appeal from a conviction of murder where the punishment was assessed by a jury at 72 years. Appellant and his wife, Margarita De Leon were indicted together for the murder of their son, Angel Love De Leon. The indictment alleged that the parents intentionally and knowingly caused the death of their child by omitting to provide food and medical care under the parental statutory duty of Section 12.04(3) of the TEX.FAM.CODE ANN. (Vernon 1975). After the cases were severed, a trial before a jury resulted in appellant’s conviction and sentence. Margarita De Leon’s conviction is also before this Court in Cause Number 13-82-115-CR.

In his first ground of error, appellant complains of the introduction into evidence of numerous photographs of the victim. Three of the photographs showed the child in his early stage of development and depict him as appearing normal and healthy. The remaining photographs show him as he appeared when he was originally discovered dead and as he appeared unclothed the day after his death but before the autopsy was performed. There is no complaint that the photographs do not accurately reflect the physical condition of this child at the time of his death and at the time the photographs were taken. The complaint is that the cumulative effect of the photographs was to inflame and enrage the minds of the jury against appellant.

Appellant concedes that the rule in Texas concerning admissibility of photographs is presented by the case of Martin v. State, 475 S.W.2d 265 (Tex.Crim.App.1972). In Martin, Judge Odom, speaking for the Court, said:

“We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.”

A discussion of the rule announced in Martin has been made by this Court in Reimer v. State, 657 S.W.2d 894 (Tex.App.—Corpus Christi 1983, no pet.) which further points out that the determination of the admissibility of the photographs as evidence, as in other types, rests largely in the discretion of the trial judge.

Dr. Joseph C. Rupp, the Nueces County Medical Examiner, testified, without objection that:

“The body was that of a poorly developed and poorly nourished white male infant, which measured thirty inches in length and weighed an estimated fourteen pounds and appeared the recorded age of seventeen months. The hair was of normal distribution but was sparse. The eyes were sunken in their sockets. The teeth were natural and in the process of erupting. The body surfaces were poorly cared for, and the subject was just really skin and bones and was malnourished and dehydrated ... there were ant and roach erosion marks over the neck and cheeks and the ears and the tips of the toes and fingers, and there were bruises on the ears; bruise across the bridge of the nose; bruises of the forehead; bruises on the cheeks; and the bruises were of varying ages. In other words, they were done at different times. The buccal mucosa, which is the inner skin of your mouth, revealed a large ulceration of laceration of the frenulum; and the frenulum is that little membrane you feel when you stick your tongue up in the middle of your upper lip; a large laceration and ulceration of the frenu-lum, as well as a large lacerated area along the upper part of the left — left side of the head; and there was on the lower lips some contusions of the gingiva, which is the tissue around your teeth, and a lacerated and ulcerated area of mucosa of the lower lip. There was also what appeared to be a small bruise on the penis ... the subject had no fat, no subcutaneous fat, which of course, is the malnourished part of it, and the organs were relatively small for this — for a subject like this, because of the loss of protein during the malnourished phase of this child’s existence, and then we found in the intestinal tract a few small masses. The stomach was empty. The small intestine was empty, distended with gas, however, and the few small masses of the fecal material in the large intestine which were very hard, and the few small masses indicate one, that the child hadn’t been fed or wasn’t eating well, and that the fact that they’re hard means that the body has extracted all of the water out of them, because the body is trying to conserve water because it isn’t taking in any water, part of the dehydration process.”

It is difficult to imagine that photographs which depict the conditions described by Dr. Rupp would not be gruesome and tend to enrage anyone who believed that some individual had caused such condition. The proper purpose of the State’s prosecution in this instance was to prove, first, that this situation existed, and, second, that appellant was guilty of causing it. The photographs accurately reflected the condition of the child as described by Dr. Rupp. They were relevant, competent and material to issues involved in the proceeding. We hold the photographs were admissible. Appellant’s first ground of error is overruled.

By his second ground of error, appellant charges that the indictment is fundamentally defective. He claims that it fails to set forth sufficient facts to constitute an offense and further that the date is not alleged with sufficient certainty.

Without stating the formalities, the indictment alleges that appellant and the co-indictee on or about the 3rd day of August, A.D. 1981,

“did then and there intentionally and knowingly cause the death of Angel Love De Leon, their child, by omitting to perform the following acts, to wit: providing Angel Love De Leon with food and providing Angel Love De Leon with medical care, when they had a duty to perform said acts under Title 2 Chapter, Section 12.04(3) Texas Family Code in that they were then and there the parents of the said Angel Love De Leon as defined by said Title 2, Chapter 12, Section 12.04 Texas Family Code_”

Appellant’s complaint that the indictment fails to give him notice of precisely what he is charged with is without merit. While the grammar in the indictment might be improved upon, a careful examination of the wording leaves no doubt of the offense with which he is charged. Appellant further complains that the parent-child relationship is not sufficiently alleged. In Ronk v. State, 544 S.W.2d 123 (Tex.Crim.App.1976) an indictment was dismissed for failure to allege a parent-child relationship in a case similar to the instant case. The court pointed out that under TEX. PENAL CODE ANN. § 6.01 (Vernon 1974) an omission to perform an act does not constitute an offense unless a statute provides that the omission is an offense or otherwise provides that he has a duty to perform the act. A person is not generally obligated to provide food or medical care for another but the Texas Family Code provides that parents (as defined in the Code) are required to provide these to their child (as defined in the Code). The indictment in Ronk, supra, failed to allege that the person charged was a parent, hence, no offense was charged. The indictment in this case clearly alleges that Angel Love De Leon was “their child” and “they were then and there the parents of Angel Love De Leon.” We hold the indictment sufficient to allege the offense of murder. Ex parte Linda Moss, 598 S.W.2d 877 (Tex.Crim.App.1980).

Appellant further complains that because the indictment alleged the date of the offense to be “on or about the 3rd day of August, 1981” he could not determine the date of the alleged offense with reasonable certainty. TEX. PENAL CODE ANN § 21.-02(b)(6) (Vernon 1974) only requires that the time mentioned be some date anterior to the presentment of the indictment and not so remote as to be barred by limitation. The method chosen by the State in alleging the date in this is consistent with good pleading and has been often approved. Ex parte Hyett, 610 S.W.2d 787 (Tex.Crim.App.1981); Williams v. State, 565 S.W.2d 63 (Tex.Crim.App.1978); and Nees v. State, 402 S.W.2d 186 (Tex.Crim.App.1966). Appellant’s second ground of error is overruled.

In his third and fourth grounds of error, appellant challenges the sufficiency of the evidence to support the conviction and claims that the evidence was not sufficient to show he was a parent and, in fact, that as a matter of law he was not the father of the deceased. Some of the evidence concerning these matters was mentioned in our discussion of appellant’s first and second grounds of error. In addition, the evidence was undisputed that appellant was married to the mother of the victim in December, 1972, and that the victim was born on February 11, 1980. While appellant presented evidence that he was not the father of the deceased, it is well settled that a child born during marriage is presumed to be the legitimate child of the husband and wife. Thompson v. Thompson, 572 S.W.2d 761 (Tex.Civ.App.—Tyler 1978, no writ). Of course, this presumption may be rebutted. Davis v. Davis, 521 S.W.2d 603 (Tex.1975). The other evidence in this case showed that appellant was at home a substantial period of time immediately prior to the death of Angel Love De Leon and was in charge of the family; that he knew or should have known of the child’s deteriorating condition; and that nothing was done for the child. While appellant testified that he cared for and fed the child, the evidence to the contrary was substantial. The testimony of Dr. Rupp, as to the appearance of the child and the condition of the intestine and fecal matter clearly contradicted appellant. Harrington v. State, 547 S.W.2d 616 (Tex.Crim.App.1977). Appellant’s third and fourth grounds of error are overruled.

Finally, appellant complains of the trial court’s action in allowing Amado De Leon, a minor child of appellant to testify. The trial judge satisfied himself that the child was competent. Appellant does not quarrel with this decision but claims that there should be a parent-child privilege established to prevent a child from testifying in a proceeding involving a parent. We believe the creation of such a privilege would not be consistent with the ends of justice and decline to recognize such a privilege. Appellant’s fifth ground of error is overruled.

Finding no error, the judgment of the trial court is AFFIRMED.


author: BASS, Justice.

text:
    Lee EISENHAUER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0501-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 1984.

      W. Scott Carpenter, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Jesse Rodriguez, Harris County Asst. Dist. Atty., Houston, for appellee.
    Before WARREN, BULLOCK and BASS, JJ.
   ON REMAND

BASS, Justice.

This is an appeal from a conviction for the offense of possession of cocaine upon a plea of nolo contendere. In accordance with a plea bargain, the court assessed punishment at six years confinement, probated, and fined appellant $2,000. The court granted appellant permission to appeal the denial of his motion to suppress evidence. On appeal, this court reversed and ordered the cause dismissed. 657 S.W.2d 184. The state filed a petition for discretionary review which was granted and the judgment of this court was reversed and remanded to this court for consideration of additional issues. Eisenhauer v. State, 678 S.W.2d 947 (Tex.Crim.App., 1984).

The Court of Criminal Appeals considered only the question of was whether this court properly applied federal constitutional law in finding a lack of probable cause for the warrantless arrest. The Court of Criminal Appeals determined that our decision was based solely on federal constitutional grounds and did not reach a consideration of state law. Thus, that court reversed our judgment and remanded the cause to this court to consider the grounds of error with regard to Texas law.

At one o’clock p.m., on February 16, 1982, Officer Furstenfeld, a Houston police officer, received a phone call from an unknown informant concerning an individual named Lee Eisenhauer. The informant advised the officer that Eisenhauer would depart from Houston Intercontinental Airport at 1:30 p.m. en route to Miami. The informant further revealed that Eisenhauer would return from Miami the same day with cocaine in his possession.

The informant gave the officer a description of Eisenhauer. The description included the following details:

Eisenhauer was a white male, approximately 22 years of age, 5'10" tall weighing 160 pounds, with short, dark hair. He would be wearing a beige tweed jacket, blue jeans, and white tennis shoes.

The officer went to the Continental ticket desk and ascertained that an individual named Lee Eisenhauer was booked on a 1:30 p.m. flight to Miami, and was booked to return the same day from Miami at 8:03 p.m. At 8:00 p.m. the officer observed appellant deplane and determined he fit the description given by the informant. Officer Furstenfeld testified that appellant was carrying a piece of luggage and walked at a fast pace down the concourse, looking over his shoulder twice. Appellant took the escalator to the baggage area, bypassed the area, and approached the north exit. Officer Furstenfeld stated that none of these actions were unusual in the airport. At this point Officer Burnias and Furstenfeld approached the appellant, identified themselves as police officers, and asked if they could speak with him. Fur-stenfeld asked appellant for his ticket and identification. Appellant complied with the request. Furstenfeld then advised appellant that he believed him to be in possession of cocaine. Appellant’s hands began to shake and he appeared nervous. His forehead broke out in perspiration and he began to stutter.

Furstenfeld requested permission to search appellant and his luggage. However, appellant did not respond. Officer Castiglo then approached appellant and told him that they knew he had gone to Miami to buy cocaine and that they believed him to have cocaine in his bag or on his person. Appellant then stated “What happens now,” whereupon Furstenfeld told him that he could consent to a search of his bag and person or require the officers to procure a warrant. Another officer, Officer Gannon, joined the group at this time. Appellant was standing backed into a phone cubicle with four officers surrounding him. Appellant’s luggage was then searched but no contraband was discovered. Officer Gannon then commented that the cocaine was probably in appellant’s sock, and at that time Furstenfeld asked appellant where the cocaine was located. Officer Castiglo then told appellant to “give it up”, that he was “caught”.

Appellant responded by taking off his jacket and handing it to Officer Burneas saying only “It’s in the pocket”. Two of the officers searched the pockets and a package wrapped in a napkin was discovered. Furstenfeld opened the napkin and observed a plastic bag full of a white substance, which tested positive for cocaine.

Appellant at no time gave permission for the search of his luggage, jacket, or the napkin-wrapped package. Although he was told that he could either consent to a search or require a search warrant, his luggage was immediately searched without consent. Officer Furstenfeld admitted, on cross-examination, that appellant handed over his jacket only after he had been told to “give it up” because he had been “caught.”

In his first ground of error, appellant contends that “The trial court erred in failing to suppress the evidence, for the reason that appellant’s arrest was without probable cause”. He contends that under current Texas law, where a warrantless search is based upon an informant’s tip, the two-pronged Aguilar test must be met. Aguilar v. State, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). More specifically, appellant asserts that the informant’s tip in this case was insufficient to establish probable cause for appellant’s arrest because no evidence was introduced establishing how the officer had obtained his information from the informant.

Appellant also asserts in his second ground of error that there was insufficient evidence to establish the credibility of the informant. Appellant argues that Officer Furstenfeld’s mere assertion that his informant was reliable is an insufficient basis for establishing probable cause for a war-rantless arrest.

An anonymous telephone call does not, in itself, provide sufficient basis for a warrantless arrest or search as evidence must also be introduced establishing why the officer deemed the informant credible and the information reliable. Evidence and standards applicable to the assessment of probable cause for a warrantless arrest and search are at least as stringent as the standards applied for the issuing of an arrest or search warrant. Wilson v. State, 621 S.W.2d 799 (Tex.Crim.App.1981). Under Texas law, an affidavit for a search warrant based upon hearsay must satisfy the two-prong test that the magistrate be informed of the underlying circumstances which render the information reliable and that he be informed of specific factual allegations which render the source of the information reliable. Tex.Code Crim.P. art. 18.01 (Vernon 1977); Winkles v. State, 634 S.W.2d 289 (Tex.Crim.App.1982). Glass v. State, 681 S.W.2d 599 (Tex.Crim.App.1984).

In the present matter, the officer testified that he had never received any information from the informant previous to the phone conversation of February 16, 1982. He had no idea whether the information was accurate when he acted upon it, and he testified that the informant himself had never seen the cocaine the appellant was to obtain. According to the officer, all the informant knew was that “a person was supposed to go to Miami and obtain some cocaine”. There was no testimony as to the credibility of the informant or even an affirmative showing that the officer had previously received information from the informant.

Appellants first and second grounds of error are sustained.

Appellant asserts through his third ground of error that there was insufficient evidence to establish that appellant had committed an offense so there was no probable cause for the arrest.

The record contains testimony by Officer Furstenfeld that when confronted at the airport appellant appeared nervous. However, as pointed out in Glass v. State, 681 S.W.2d 599 (Tex.Crim.App.1984), “in this day and time when a citizen is suddenly facing an imminent confrontation with police officers for unknown reasons, most citizens with nothing to hide will nevertheless manifest an understandable nervousness in the presence of the officer.”

Additionally, in Wilson v. State, 621 S.W.2d 799, the court held that police officers who had received information from an informant that the defendant would be going to a phencyclidine lab and would be driving a particular truck, did not have probable cause to arrest the defendant or to conduct a search. In Ebarb v. State, 598 S.W.2d 842 (Tex.Crim.App.1978), the court stated that it “behooved” the trial court to suppress evidence obtained when the “specific and articulable” circumstances which justify the investigatory stop were based solely on the tip of an informant. Clearly, an anonymous telephone call would provide sufficient justification for police officers to initiate an investigation, but it will not justify a warrantless arrest or search. Clemons v. State, 605 S.W.2d 567 (Tex.Crim.App.1980).

Texas cases have consistently held that not only must the information received from an informant be specific enough to render it reliable, but that there must be allegations of such a specific and factual nature to conclude that the source was credible. Tolentino v. State, 638 S.W.2d 499 (Tex.Crim.App.1982); Wilson v. State, 621 S.W.2d 799 (Tex.Crim.App.1981); Green v. State, 615 S.W.2d 700 (Tex.Crim.App.1981); Kleasen v. State, 560 S.W.2d 938 (Tex.Crim.App.1978). Texas cases further hold that a search conducted without a warrant issued on probable cause is per se unreasonable. Nastu v. State, 589 S.W.2d 434 (Tex.Crim.App.1979, cert. denied 447 U.S. 911, 100 S.Ct. 3000, 64 L.Ed.2d 862). Evidence seized as a result of any legal detention without probable cause should be suppressed. See Jones v. State, 567 S.W.2d 209 (Tex.Crim.App.1978). Appellant’s third ground of error is sustained.

Appellant’s fourth ground of error also addresses the illegality of the search by asserting that there was ample time to procure an arrest warrant. However, in view of our conclusion that there was not probable cause for the arrest or search, this ground need not be addressed.

In appellant’s fifth ground of error, he claims that there was insufficient evidence to establish his consent to the search. We agree and sustain this ground of error. A consent to search must be free and voluntary in light of the totality of the circumstances, and such consent is vitiated if granted only in submission to a claim of lawful authority. Green v. State, 594 S.W.2d 72 (Tex.Crim.App.1980). Whether such consent is voluntary must be proven by clear and convincing evidence, and it is a question of fact whether the accused gave positive and unequivocal consent. Kolb v. State, 532 S.W.2d 87 (Tex.Crim.App.1976).

In the instant case appellant was intercepted by four officers. The officers told him that they knew he had gone to Miami to purchase cocaine and believed it to be on his person or in his bag. Appellant was asked several times where the contraband was. Although the officers indicated that appellant could withhold consent and force them to get a search warrant, they immediately searched his bag without consent of any kind. The clear implication was that, contrary to the assertion that consent could be withheld as a practical matter, consent was immaterial. Furthermore, after completion of the unsuccessful search of the bag, the officers indicated that they intended to begin to search his person when they commented that the contraband was probably in his sock. At this point one officer told appellant to “give it up” because he had been “caught.” Another officer continued to question appellant as to where the cocaine was. In fact, the record reveals that the officer stated that he would not permit appellant to leave the scene in the event that he would require the officers to secure a search warrant. It was only after the search of his bag without consent and the statement that appellant should “give it up” that appellant handed over his jacket and stated, “It’s in the pocket”.

Appellant argues that because he never gave a positive statement indicating his consent to search, the trial court erred in failing to suppress the evidence since the consent to search was obtained through the exploitation of an illegal arrest. We agree. After examining the totality of the circumstances, we conclude that after the appellant was told to “give it up”, he simply acquiesced to lawful authority and complied with that unequivocal demand. From the record as a whole, we find the evidence to be insufficient to support a finding that consent was voluntarily given. See Kolb v. State, 532 S.W.2d 87.

In his sixth ground of error, appellant asserts that the trial court erred in failing to suppress the evidence because appellant’s consent to search was secured through the exploitation of his illegal arrest. As stated above, any purported “consent” was given in direct response to the officer’s demand for the alleged contraband, under claim of lawful authority, and, hence, was acquired through exploitation of his illegal arrest. Lee Green v. State, 615 S.W.2d 700 (Tex.Crim.App.1980).

Appellant’s sixth ground of error is sustained.

The judgment below is reversed and the cause is ordered dismissed.


author: JAMES, Justice.

text:
    Francisco DAMIAN, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-338-CR.
    Court of Appeals of Texas, Waco.
    Jan. 10, 1985.
    Henry L. Burkholder, III, Law Offices of Garland D. Mclnnis, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., William J. Delmore, III, Larry Schreve, Asst. Dist. Attys., Houston, for appellee.
   OPINION

JAMES, Justice.

This is an appeal from the trial court’s order revoking probation.

Appellant was indicted for the offense of felony driving while intoxicated on or about July 9, 1983. The indictment pleaded a prior misdemeanor conviction on July 27, 1981, in Cause No. 623751 in Harris County Criminal Court at Law No. 3. On October 20, 1983, Appellant pleaded guilty to the felony offense, stipulated that the allegations in the indictment were true, was adjudged guilty, and was placed on three years probation.

On October 26, 1983, the State filed a motion to revoke Appellant’s probation, alleging that he again committed the offense of driving while intoxicated on October 23, 1983.

On November 8, 1983, Appellant filed a motion for new trial, attacking the prior misdemeanor conviction on the grounds that he had not waived his right to trial by jury in that case. After hearing, the trial court overruled the motion for new trial on November 28, 1983. Appellant then raised the same complaint in a motion to set aside the State’s motion to revoke probation. The trial court accepted a stipulation that the evidence adduced at the hearing on the motion for new trial would be considered in reference to this subsequent motion. Appellant’s motion was overruled. Appellant then entered a plea of true to the allegations in the amended motion to revoke probation. The trial court revoked his probation, reforming the judgment to provide for two years confinement in the Texas Department of Corrections and payment of a $500.00 fine, from which Appellant prosecutes this appeal.

At the hearing on the motion for new trial Appellant testified that he never waived his right to trial by jury in his prior misdemeanor case, and had not been aware at that time that he had such right.

The State called Mr. Lasof, Appellant’s lawyer in the prior misdemeanor trial, who testified that he did not recall executing a written jury waiver in the prior misdemean- or trial, and could not remember whether the trial court made any oral inquiries concerning this right. Mr. Lasof further testified that he was “confident” that he had counselled with Appellant concerning his right to a “full scale trial”, but could not recall whether he also informed Appellant that such trial would include a jury. This in effect was the extent of the evidence.

Appellant asserts one ground of error as follows: “The trial court committed reversible error in proceeding to revoke Appellant’s felony driving while intoxicated probation, where the evidence showed that Appellant never waived his Federal right to trial by jury in his prior misdemeanor driving while intoxicated conviction.” We overrule this ground of error and affirm the trial court’s judgment.

Appellant relies on Samudio v. State, (Tex.Cr.App.1983) 648 S.W.2d 312, cert. denied June 20, 1983, and argues that when a defendant testifies during a revocation hearing that he did not waive trial by jury in a non-jury case used for enhancement, the State should be required to present evidence showing defendant’s affirmative waiver of that right. We know of no existing case law which places such a duty upon the State. In our opinion, Sa-mudio is not applicable to the case at bar.

We believe the disposition of the case at bar is governed by Hill v. State, (Tex.Cr.App.1981) 633 S.W.2d 520, which holds that a failure to lodge a timely objection to evidence offered during trial precludes a defendant from later complaining, even if the alleged error were of constitutional dimension.

The record in the case at bar does not show that Appellant made any objection to the introduction into evidence of the prior misdemeanor conviction. Therefore, we hold that Appellant’s failure to object at trial to the introduction of proof of the allegedly infirm conviction precludes Appellant from thereafter attacking a conviction that utilized the prior conviction. Also see Wright v. State, (Tex.Cr.App.1974), 511 S.W.2d 313.

As stated before, the case at bar is an appeal from the trial court’s order revoking Appellant’s probation. In Hoskins v. State, (Tex.Cr.App.1967), 425 S.W.2d 825, it was held that in an appeal from an order revoking probation, appellate review is limited to the question of whether an abuse of the trial court’s discretion is shown concerning the propriety of the revocation itself, and does not include review of the original conviction.

For the reasons hereinabove stated, we affirm the trial’s judgment.

AFFIRMED


author: DICKENSON, Justice. RALEIGH BROWN, Justice,

text:
    HOMESTATE SAVINGS ASSOCIATION, Appellant, v. WESTWIND EXPLORATION, INC., Appellee.
    No. 11-84-212-CV.
    Court of Appeals of Texas, Eastland.
    Jan. 17, 1985.
    Rehearing Denied Jan. 31, 1985.

      R. Temple Dickson, Moore, Dickson, Roberts & Ratliff, Inc., Sweetwater, Paul D. Clote, Shrader & York, Houston, for appellant.
    Don M. Connally, Norvell & Connally, Abilene, for appellee.

      . If the letter of credit covers all balances due to Westwind from International Crude, the presentment for payment complies with its terms.

   DICKENSON, Justice.

The controlling issue is whether a letter of credit issued by Homestate Savings Association in favor of Westwind Exploration, Inc. covered: (1) all balances due to West-wind from International Crude Corporation; or (2) only balances due to Westwind from International Crude Corporation for the delivery of crude oil during the month of August, 1982. Following a trial by jury, judgment was rendered that West-wind recover $124,000 plus interest and attorney’s fees. Homestate appeals. We reverse and render.

In answer to the two special issues the jury found: (1) Homestate Savings Association wrongfully refused to pay Letter of Credit No. 321 dated August 3, 1982, as amended, upon presentment for payment by Westwind Exploration, Inc. on November 26, 1982; and (2) a reasonable attorney’s fee for Westwind Exploration, Inc. would be $7,300.

Homestate has briefed eight points of error. Point 1 argues that the trial court erred in rendering judgment for Westwind because “as a matter of law, Westwind did not strictly comply with all terms and conditions of the letter of credit.” We sustain this point, and we need not discuss the other points of error. The cross-points of appellee have been considered, and they are overruled. The trial court did not abuse its discretion in refusing to permit a trial amendment which would have changed the nature of the lawsuit in the middle of the trial. Consequently, there were no pleadings of ambiguity or seeking reformation.

The recent case of Temple-Eastex, Incorporated v. Addison Bank, 672 S.W.2d 793 at 795 (Tex.1984), makes it clear that the issuer would be liable under the letter of credit “only if a proper presentment and demand for payment were made,” and that case also makes it clear that those documents must show that the beneficiary of the letter of credit has “strictly” complied with the conditions of payment before it is entitled to receive payment thereunder. Letters of credit are governed by the construction rules of ordinary contracts and are construed most strictly against the issuer. Temple-Eastex, Incorporated v. Addison Bank, supra at 798. However, the objective intent of the parties must be ascertained from the terms of the letter of credit itself. City of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515 at 518 (Tex.1968), makes it clear that: (1) “the construction of the written instrument is a question of law for the Court;” (2) “the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls;” and (3) “generally the parties to an instrument intend every clause to have some effect and in some measure to evidence their agreement.”

The letter of credit in this case was issued to Westwind Exploration, Inc. by Homestate Savings Association on August 3,1982, in the amount of $124,000, showing an expiration date of September 27, 1982, listing International Crude Corp. as applicant, and being further identified as Irrevocable Letter of Credit No. 321. The body of the letter contained the following terms and conditions:

Funds under this letter of credit are available to you against your draft(s) drawn on us, but not prior to September 22, 1982, mentioning thereon our Letter of Credit No. 321 accompanied by the following:
(1) Your officially signed statement by an officer of Westwind Exploration, Inc. certifying that the amount drawn hereunder represents balances due them from International Crude Corp. has been outstanding for more than 24 hours and has not been received.
(2) Copy of run statements/tickets evidencing delivery of crude oil to International Crude Corp. during the month of August, 1982. (Emphasis added)
(3) Beneficiary can draw only on the amount due them, after any or all taxes connected with this oil are deducted by International Crude Corp. (Emphasis added)
We hereby engage with drawers that drafts drawn under and in compliance with the terms and conditions of this letter of credit will be duly honored upon presentation.
This letter of credit is subject to the uniform customs and practice for documentary credits (1974 revision) International Chamber of Commerce Brochure No. 290.

There were two amendments to the letter of credit. First, the expiration date was extended to October 28. Second, the expiration date was extended to November 29. Each of the amendments specifically provided that: “All other terms and conditions shall remain the same.”

By letter dated November 26, 1982, Westwind attempted to draw a draft for $124,000 against Homestate’s Letter of Credit No. 321 certifying that the amount drawn “represents balances due ... that have been outstanding for more than 24 hours and have not been received.” The supporting evidence consisted of crude oil run statements from International Crude Corporation for “crude oil purchased in the months of July, August, September and October 1982.” Since the evidence shows the draft was not merely for the August oil (guaranteed by the letter of credit) but was also for July oil (prior to the effective date of the letter of credit) and for September and October oil (subsequent to the August oil deliveries which were guaranteed by the letter of credit), we hold that the evidence conclusively shows that the presentment and demand for payment covered oil which was not guaranteed by the letter of credit. These documents show on their face that “as a matter of law, Westwind did not strictly comply with all terms and conditions of the letter of credit.” Consequently, Homestate’s motion for judgment non obstante veredicto should have been sustained.

Westwind contends, as indeed it must, that the presentment would have complied with the terms of the letter of credit if Westwind furnished Homestate with a copy of a run statement showing the delivery of a single barrel of oil during the month of August. We are unable to accept this contention. Westwind would have us read numbered paragraph one by itself, covering all balances due Westwind from International Crude which have been outstanding for more than 24 hours. Since we must ascertain the objective intent of the letter of credit by giving effect .to all of its clauses, City of Pinehurst v. Spooner Addition Water Company, supra, we cannot ignore numbered paragraphs two and three. When the three paragraphs are read together, it seems clear that the letter of credit covers: (1) outstanding balances due for more than 24 hours; (2) for crude oil delivered during the month of August, 1982; (3) after all taxes connected with this oil are deducted.

The judgment of the trial court is reversed, and we render judgment that West-wind Exploration, Inc. take nothing by its suit and that Homestate Savings Association be discharged from all liability on Letter of Credit No. 321.

RALEIGH BROWN, Justice,

dissenting.

I dissent. The essential purpose of a letter of credit is to insure payment to the beneficiary. This obligation of the issuer to pay upon presentment of conforming documents is independent of the underlying contractual relationship between the customer and the beneficiary. The issuer deals in documents and not goods, and when conforming documents are presented, payment must be made. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, 578 S.W.2d 109 (Tex.1978); TEX.BUS. & COM.CODE ANN. sec. 5.114(a) (Vernon 1968). Further, a letter of credit and underlying contract giving rise to the transaction cannot be construed together for the purpose of adding obligations in addition to those specifically set out in the letter of credit. Summit Insurance Company of New York v. Central National Bank of Houston, 624 S.W.2d 222 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ); Dulien Steel Products, Inc., of Washington v. Bankers Trust Company, 298 F.2d 836 (2nd Cir.1962); Siderius, Inc. v. Wallace Company, Inc., 583 S.W.2d 852 (Tex.Civ.App.—Tyler 1979, no writ).

A fair and reasonable reading of paragraph one in the letter of credit reflects that the purpose of said letter was to insure payment of balances due Westwind Exploration, Inc. from International Crude Corporation which had been outstanding for more than 24 hours and not received. There is no limitation in that paragraph restricting Homestate’s obligation for payment of balances due for August only. Further, the expiration date was significantly extended which expresses an intention on Homestate’s part to extend its liability.

Paragraphs two and three set forth additional accompanying documents to be furnished by Westwind. Such documents do require evidence of runs for August 1982 but do not suggest an improper presentment if other documents are furnished. Whether Westwind strictly complied with requirements of the letter of credit was a question for the jury. H. Ray Baker, Inc. v. Associated Banking Corp., 592 F.2d 550 (9th Cir.1979); Chase Manhattan Bank v. Equibank, 550 F.2d 882 (3rd Cir.1977). The jury found that Westwind did strictly comply with the terms of the letter of credit.

Construing the letter of credit most strictly against the issuer as we must, I would hold that Homestate’s obligation to Westwind is not restricted to payments of balances for August only. Republic National Bank of Dallas v. Northwest National Bank of Fort Worth, supra. The majority concludes that as a matter of law the objective intent of the parties was that only payment for August oil was guaranteed by the letter of credit. I do not agree with such conclusion. I would affirm the judgment.

      . If the letter of credit only covers balances due for the month of August, 1982, the presentment for payment was not in compliance with its terms.

      . Consequently, the jury’s finding of a wrongful refusal to pay is immaterial.


author: RALEIGH BROWN, Justice.

text:
    CITY OF DALLAS, Appellant, v. Charles GATES et ux, Appellees.
    No. 11-84-157-CV.
    Court of Appeals of Texas, Eastland.
    Jan. 17, 1985.
    Rehearing Denied Feb. 7, 1985.

      Paul K. Pearce, Jr., Dallas, for appellant.
    G. Frank Brown, Brown & Stacker, Michael W. Stacker, Hercules & Lavery, Dallas, for appellees.
   RALEIGH BROWN, Justice.

This appeal concerns the award of attorney’s fees. Charles Gates, one of the ap-pellees, is employed by the City of Dallas, the appellant. The City, under a self-insurance plan, provides health benefits to its employees and their dependents. Gates enrolled himself and his wife, Betty Gates, in the insurance plan. Mrs. Gates, suffering from multiple sclerosis, relied heavily on the plan to help defray the costs of her medical treatments. In February 1982, the City decided to deny any further benefits to Mrs. Gates. Mr. and Mrs. Gates filed suit. The parties agreed to the entry of a partial summary judgment in favor of the employee and his wife for the unpaid benefits that had accrued, and the City agreed not to deny any of Mrs. Gates future claims under the plan. The parties then proceeded to trial on the issue of attorney’s fees. In its conclusions of law, the trial court found the City liable for attorney’s fees under TEX.REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1984) and TEX.INS. CODE ANN. art. 1.14-1 (Vernon 1981). Accordingly, the trial court entered final judgment which included attorney’s fees of $100,000 through judgment in the trial court; an additional sum of $10,000 if the City files an appeal with the Court of Appeals; an additional sum of $5,000 if the City files an application for writ of error to the Texas Supreme Court, and an additional $5,000 if the writ of error is granted.

The City appeals solely as to the award of attorney’s fees. The judgment is affirmed in part and reversed and rendered in part.

The City urges that the trial court erred in holding the City liable for attorney’s fees under TEX.REV.CIV.STAT. ANN. art. 2226 (Vernon Supp.1984) and TEX.INS.CODE ANN. art. 1.14-1 (Vernon 1981) and in rendering judgment thereon because those statutes do not apply to a municipal corporation. We agree. TEX. REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1984) provides in pertinent part:

Any person ... having a valid claim against a person or corporation for ... suits founded upon ... written contracts, may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney’s fees_ The provisions hereof shall not apply to ... contracts of any insurer subject to the provisions of Article 3.62, Insurance Code_ (Emphasis ours)

TEX.INS.CODE ANN. art. 1.14-1 (Vernon 1981) provides:

Sec. (2)(a) ... Unless otherwise indicated, the term insurer as used in this Article includes all corporations, associations, partnerships and individuals engaged as principals in the business of insurance.
* * * * * *
Sec. 7 In an action against an unauthorized person or insurer upon a contract of insurance ..., if the person or insurer has failed for 30 days after demand prior to the commencement of the action to make payment in accordance with the terms of the contract, and it appears to the court that such refusal was vexatious and without reasonable cause, the court may allow to the plaintiff a reasonable attorney’s fee and include such fee in any judgment that may be rendered in such action.... (Emphasis ours)

The City argues that as a municipal corporation, it is not a corporation within the meaning of a “corporation” under these statutes. We agree. Under Article 2226, the word corporation does not include a municipal corporation. City of Austin v. North Austin State Bank, 631 S.W.2d 564 (Tex.App.—Austin 1982, no writ); Willis v. City of Lubbock, 385 S.W.2d 617 (Tex.Civ.App.—Amarillo 1964, writ ref'd n.r.e.). See Preload Technology, Inc. v. A.B. & J. Construction Company, Inc., 696 F.2d 1080, 1095 n. 23 (5th Cir.1983). Therefore, Article 2226 is not applicable to the City. Any award of attorney’s fees made pursuant to such statute is invalid.

It is settled that when a statute uses the word “corporation,” the statute “is construed to apply only to private corporations and does not include municipal corporations, unless the statute expressly so provides.” State v. Central Power & Light Co., 139 Tex. 51, 161 S.W.2d 766 (Tex.1942). In the instant case, the statutes use the word “corporations” and do not provide for any exceptions to the general rule. Therefore, we hold that neither statute applies to the City. The award of attorney’s fees under these statutes was error. The legislature has had ample opportunity since these cases were decided to expand the definition of “corporations” to include municipal corporations. They have declined to do so. These points are sustained.

All of the remaining points of error relate to other reasons why the trial court erred in awarding attorney’s fees. The points hinge on the supposition that the two statutes apply to the City. Since the statutes upon which the trial court relied in granting the award of attorney’s fees do not apply to the City, it is unnecessary for us to consider these points.

Mr. and Mrs. Gates, in a single cross-point, argue that the trial court erred in failing to hold the City liable to them for attorney’s fees, penalty, and interest under TEX.INS.CODE ANN. art. 3.62 (Vernon 1981). We disagree. This Article authorizes a recovery of attorney’s fees, penalties and interest against a health insurance company. The definition of a health insurance company in TEX.INS.CODE ANN. art. 3.01, sec. 3 (Vernon 1981) refers to corporations. No language in that statute indicates that the term “corporation” includes a municipal corporation. Therefore, we hold that since TEX.INS.CODE ANN. art. 3.62 (Vernon 1981) does not include a municipal corporation within its definition, it is not binding on the City. State v. Central Power & Light Co., supra. This cross-point is overruled.

The judgment of the trial court is affirmed save and except as to the award of attorney’s fees, which portion is reversed and judgment rendered that Charles and Betty Gates take nothing as to said attorney’s fees.

      . The appellees are Charles Gates and his wife Betty Gates.

      . The City of Dallas is a home rule city.


author: JOE SPURLOCK, II, Justice.

text:
    Jose ARANDA, Appellant, v. The STATE of Texas, State.
    Nos. 2-84-211-CR, 2-84-218-CR and 2-84-219-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 6, 1985.

      Dennis Cadra, Odessa, for appellant.
    Barry E. Blackwell, Dist. Atty., Dumas, for the State.

      Before FENDER, C.J., and ASHWORTH and JOE SPURLOCK, II.
   OPINION

JOE SPURLOCK, II, Justice.

Appellant, Jose Aranda, pled guilty to three offenses which had occurred on the same day. He was found guilty by the District Court of Moore County in January of 1981, and was placed on probation for each of the offenses. Subsequently his probation was revoked in each of the cases. His sole ground on appeal is that the trial court abused its discretion in revoking his probations.

We agree and reverse the convictions and remand the case to the District Court for continuation of appellant’s probation.

The three cases and the offenses for which Aranda was convicted in Moore County were as follows: No. 1821 (our 2-84-219-CR) aggravated assault upon a police officer, upon revocation of probation assessed five years confinement in the penitentiary and a $1,000 fine; No. 1817 (our 2-84-218-CR) robbery, upon revocation of probation assessed punishment of seven years confinement in the penitentiary and a $1,000 fine; and No. 1822 (our 2-84-211-CR) unlawfully carrying a weapon on a licensed premises, upon revocation of probation assessed punishment at confinement in the penitentiary for four years and a $1,000 fine. In order to discuss the issue of the court’s abuse of discretion in revoking the probation in each of the cases, it is necessary we review the circumstances surrounding the period of probation and the testimony given at the revocation hearing.

Upon his plea of guilty in January, 1981, appellant was found guilty in all three cases by the Court, placed upon probation, ordered by the court to make written reports to his probation officer in Moore County each month, and to pay the court costs and fine assessed against him. In cause No. 1817, he was ordered to pay court costs of $72, a probation supervision fee of $1,800, a fine of $1,000, for a total of $2,872 to be paid to the State of Texas in 99 payments at $29 per month. In cause No. 1821, his court costs were set at $72 and probation supervision fee of $1,800, a fine of $1,000 “probated” for a total of $1,872 to be paid in 98 payments at $18 per month. In cause No. 1822, his court costs were set at $72, probation supervision fee of $1,800 and a fine of $1,000 "probated” for a total to be paid of $1,872 to be paid in 98 payments at $19 per month. The total of his monthly payments were therefore to be $66 per month for at least 98 months with a minimal balance to be paid in the 99th month. He began his payments on the 15th day of February 1981.

The testimony at trial on the probation revocation hearing showed that he made each and every one of such payments as they became due, in full, by mail, except for a contested payment that he testified he made, but the probation officer testified was never received for the month of April 1988. The testimony further revealed that the payments for the month of May and the month of June 1983 were made by appellant even though he was in jail during those two months awaiting trial upon the revocation hearing.

At the revocation hearing the testimony showed appellant was a resident of Kansas, was transferred to the supervision of that state and accepted by Kansas in April of 1981 under provisions providing for courtesy supervision. At trial the testimony of the probation officer was that appellant did not report to the Moore County probation officer beginning in May of 1981 and had not reported during the period of time from that occasion until the time of the probation revocation hearing, except for one month during such time. At issue in this case is whether or not the missing of a single payment during the period of time that a probationer is on probation is sufficient to revoke such probation when the probationer insists he made the payment and there is no other evidence of his inability or unwillingness to have made the payment. At issue further is the question of whether or not his failure to report in writing upon forms furnished by the probation office, which he admits he did not make, is sufficient to revoke his probation when in fact he did make a report each month to the office by mailing in his payments to that office and did comply with the probation requirements of the State of Kansas by reporting to them each month as he was directed by them.

The testimony showed that appellant first came to the attention of the probation department on May 24, 1983 when he was arrested with a companion on a road near Amarillo, Texas. Appellant’s testimony was that he was in route from his home in Kansas to Amarillo to pick up a brother, having picked up a friend at the friend’s home in Dumas, Texas. While in route they had stopped alongside the highway to answer a call of nature and while relieving themselves were arrested by police officers. There was originally an allegation that marihuana was found in the vehicle, which appellant was driving on that occasion. The original report made by the probation officer to the court as a report of probation violation filed on May 24th alleged an offense of possession of marihuana only and was filed in each of the three cases 1821, 1817 and 1822. That same day the court ordered the arrest of the appellant based upon that report of probation violation.

On the 3rd of June, appellant, through counsel, made a motion for bail in each of the three cases, which was denied, not by formal order, but by notation on the docket sheet. However, on June 6th, the probation officer who had made the report of probation violation filed a motion to set aside the order for arrest and for the court to disregard the report of probation violation in causes 1821 and 1817 only. On June 8th the court granted the motion, set aside the order for arrest and ordered that appellant be reinstated on his probation in causes 1817 and 1821. The probation officer had also filed on June 6th a formal motion to revoke probation in cause 1822, alleging therein the marihuana complaint plus three counts of violation of the requirements to pay or report. Those three separate counts (which could have applied then to all three cases) included the one specific failure to make a payment in April of 1983 and the failure to report from May 1981 up until and including the period of time in May 1983. Another count was a failure to make a sworn affidavit concerning the failure to make the payment of April 1983. On July 1st, the court ordered that a hearing be held on the motion to revoke probation in cause 1822.

The probation revocation hearing was held on the 14th day of July. At that time the court heard evidence concerning the probation violations and the testimony of the appellant. The court thereafter entered its judgment revoking the probation and sentencing the appellant to four years confinement in the Texas Department of Corrections and a $1,000 fine. The court made findings of probation violation only upon the counts alleging failure to report and pay. The court found that there was no violation of the law as there was no marihuana violation evidence. Meanwhile, on the 8th day of July the probation officer filed a second sworn report of probation violation in cause 1821 also including the marihuana count (after having filed a motion to disregard the same on June 6th) and the three counts of failure to pay and report, the same as in cause 1822. The court, on the 14th of July (the same date as the hearing in cause 1822), issued an order for the arrest of the appellant for such violations in cause 1821. Thereafter on the 27th day of July a motion to revoke probation was filed (without including the marihuana complaint) in both causes 1821 and 1817.

A trial was held upon those two motions to revoke probation, neither of which included the marihuana complaint, on August 19th. On that date the court again concluded that appellant had violated his probation in the same particulars as it had found in cause 1822. The trial was upon stipulated evidence which had been taken in cause 1822. The court then assessed in cause 1817, seven years imprisonment and a $1,000 fine, and in cause 1821, five years imprisonment and a $1,000 fine. At that time appellant had been in jail for 93 days. On the 9th day of September, on the 114th day of jail for appellant, an appeal bond was filed in each of the three causes and approved by the court.

The evidence at trial showed that appellant was a resident of Kansas and was employed at a beef plant. He had been working there in excess of 12 years beginning in 1971 up until the time of the arrest for probation violation on May 24, 1983 and was then earning $7.65 an hour. He was supporting his mother, four children and his wife, who also worked at the same beef plant. There was no testimony offered by the State tending to show that appellant willfully failed or refused to hold employment, support his dependents, or that he willfully failed or refused to make any payments he was ordered to make by his probation orders. The only evidence that the State offered was the testimony of a probation officer who upon reviewing the records of the probation office of Moore County stated that he found no record of a payment being received in April of 1983. The officer testified that, according to the records, every other payment had been made.

The appellant testified that he made the April 1983 payment the same as he made all other payments; that he did so by the purchase of a money order from a Safeway store; that he had sent those money orders regularly each time they were due to the probation office in Moore County, Texas; and in fact had made two more payments since the time that he was arrested and placed in jail for probation violation. He testified he had no receipt or cancelled check to show that he made any payment but that he had done so regularly every month. He did not testify as to any excuse for failing to make the April payment.

In regards to the failing to report in writing to the probation office in Dumas, appellant testified that when he was in Texas he reported to Dumas because they told him he had to, but that when he moved to Kansas no one told him to make the reports in writing. He testified if they told him so he would have done so. Compounding the difficulty in this case is the uncontested fact that appellant does not speak or write English. In both the original trial in January of 1981 and at each of the two separate probation revocation hearings in 1983 the court appointed a court interpreter to interpret the proceedings and the questioning and answers of the appellant for the appellant and the court. The appellant testified that he did report to the probation officer in Kansas every time that he was required to, which included at first going every month and thereafter every two months.

The Texas probation officer testified that his office had never been contacted by Kansas concerning any delinquency or crimes or failure to comply with probation on behalf of the appellant. The probation officer further testified that ordinarily the probation officer assigned to the case in Texas should contact the people in Kansas but there was no notation in the file that this had been done. Further, the original Texas probation case officer was no longer employed by the Moore County probation department and was not available to testify at trial. The officer testifying further testified that it was customary that progress reports would not be sent on a probationer unless it was requested or unless there was a violation or something occurring in the courtesy state. Generally the progress report would be required if the Texas office had found problems in a probationer reporting or paying. Except for the April 1983 payment, of which they had no record, every other payment had in fact been made up to and including the payments for May and June of 1983.

He further testified that when a probationer was on courtesy supervision usually a letter would be sent if the allegations were for failure to make a written report and that the probation office or department in the courtesy state would be contacted either by phone or mail and it would be up to that state to make contact with the probationer. But, in this case, there had been no such notation that Kansas had been notified or that Kansas had reported that the probationer had done anything wrong.

This court is cognizant of the fact that the trial court as a trier of fact is the sole judge of the credibility of witnesses and the weight to be given their testimony and may accept or reject all or any part of any witness’ testimony. Hernandez v. State, 538 S.W.2d 127, 131 (Tex.Crim.App.1976). Further, we are not unmindful of the fact that appellate review of an order revoking probation is limited to the issue of whether the court abused its discretion. Barnett v. State, 615 S.W.2d 220, 222 (Tex.Crim.App.1981), appeal dismissed, 454 U.S. 806, 102 S.Ct. 79, 70 L.Ed.2d 75 (1981). Further, the standard of proof in such a proceeding is proof by a preponderance of the evidence. Martin v. State, 623 S.W.2d 391, 393 (Tex.Crim.App.1981). The trial court as the sole judge of the credibility of the witness was entitled to disbelieve appellant’s versions. Rumbaugh v. State, 629 S.W.2d 747, 751 (Tex.Crim.App.1982).

The issue in this case is not simply testing whether the evidence was sufficient or whether there was a preponderance of the evidence against the appellant. Nor is the issue whether or not the probation officer was believable. The issue in this case is whether or not, under all of the circumstances, the trial court abused its discretion in revoking the probation which that same court had placed the appellant on over two years prior to the time of revocation. At issue here is the question of what should be done with a man who neither reads nor speaks the English language, who, after being lawfully transferred to supervision in another state, for over two years dutifully reported to that state’s probation office and was never once counseled, reminded, or even contacted by anyone in the Moore County probation office and told to mail the reports in to them also. Yet, during the entire period of that two years he mailed in regularly every month, the required payment due in each of the three cases for which he was on probation. Further, although the probation officer testified his office had no report of a payment being received during the month of April 1983, the gravaman of the offense charge would be willful failure to make such a payment. There was no evidence at trial of any such willful failure of the appellant to make the probation payment. See Curtis v. State, 548 S.W.2d 57, 58 (Tex.Crim.App.1977) and cases cited therein.

We find that the evidence is insufficient for the trial court to have concluded that Aranda failed to make the April 1983 payment and further that even had he failed to make such payment, we find there is no evidence that such failure was willful. Accordingly, we hold that the trial court abused its discretion in holding that there was a failure, or that such failure, if any, was a violation of the terms and conditions of his probation. In this connection we further find, inasmuch as the testimony is clear that Aranda made each and every other one of the required payments monthly of the probation fee, that the court abused its discretion in finding that he failed to file a sworn statement as required in paragraph 13 of the probation judgment. That finding related to filing a sworn statement with the court for any month in which he was financially unable to make a payment. We find there was no evidence that he was ever financially unable to make such a payment. There was no evidence that Aranda violated paragraph 13 of the probation order.

We further find that the court abused its discretion in holding that Aran-da violated paragraph 18 of the probation order when the court found he failed to report as required to Moore County, Texas after being transferred to courtesy supervision in the State of Kansas. The allegation that Aranda did not report was not challenged. He did not report in writing as required by the order. The issue raised is whether or not Aranda should be held accountable for failure to report under the circumstances. We hold that when the following circumstances occurred: 1) the Moore County probation office continued to receive monthly by mail the required payments on the probation fee sent in by Aran-da; 2) they approved the transfer of his probation for courtesy supervision to Kansas; 3) they never contacted either the probationer himself, nor the Kansas office inquiring about such reports and/or the absence of the same; 4) and never did exercise any kind of supervisory probation efforts in this matter, that it was an abuse of the court’s discretion to find that appellant had violated the terms and conditions of his probation order. The evidence is uncontroverted that he was in fact complying with the requirements of the supervisory office of Kansas to which he had been assigned, and there is not sufficient evidence, if any, to support any of the allegations that appellant willfully violated the reporting conditions of his probation.

The judgment of the court is reversed and the cause is remanded to the 69th District Court of Moore County with instructions that appellant is to be continued upon his probation.


author: GRAY, Justice.

text:
    Mark Amos WEBB, Appellant, v. The STATE of Texas, State.
    No. 2-83-402-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 13, 1985.

      Rogers, Turner & Cooke, P.C. and Michael S. Griffin, Cleburne, for appellant.
    Tim Curry, Criminal Dist. Atty., and David K. Chapman, Asst. Dist. Atty., Fort Worth, for State.
    Before FENDER, C.J., and BURDOCK and GRAY, JJ.
   OPINION

GRAY, Justice.

Appeal is taken from a conviction for rape (TEX.PENAL CODE ANN. sec. 21.02 (Vernon 1974)) wherein the jury assessed four years in the penitentiary. In ground of error number one, appellant contends that the court erred in denying appellant’s motion for mistrial after the prosecutrix testified following an alleged violation of the rule.

We agree and reverse and remand.

The prosecutrix was a 24-year old female who, according to testimony, had the mental capacity of a child of six or seven years. A hearing was held by the court to determine the competency of the prosecutrix after the witnesses had been placed under the rule in accordance with TEX.CODE CRIM.PROC.ANN. arts. 36.03 and 36.06 (Vernon 1981).

At the competency hearing, upon questioning of the prosecutrix, the following transpired:

Q. Do you know Mr. Webb [appellant]?
A. Huh-uh.
Q. Have you ever seen him before?
A. No.
[Later during the hearing:]
Q. Can you identify that person [the attacker]?
A. Uh-huh.
Q. Can you tell me if he’s in this courtroom?
A. Yeah.
Q. Can you point him out for me?
A. He’s not in here.
Q. Okay. Can you look around in here and see if he’s anywhere in here?
A. No. [Emphasis added.]

The appellant was in the room during the competency hearing, and the prosecutrix said she had never seen him before. When she was asked to identify the man who had raped her, she said he was not in the room.

Thereafter, the court found the prosecu-trix competent to testify and testimony began before the jury. The sister of the prosecutrix was called by the State and she testified that she knew appellant. The prosecutor asked the sister to identify appellant by counting down the counsel table from right to left (a common practice). The sister counted and identified appellant as “fourth person”.

Following the testimony of the sister, a recess was called and prosecutrix and her sister went to the restroom. Prosecu-trix testified next for the State, and, after describing her ordeal and attack, she testified as follows:

Q. Now, Robin, this man that did this to you, is this man in the courtroom today?
A. Yeah.
Q. Okay. Can you point him out to me?
A. Uh-huh, he’s number four. [Emphasis added.]

At a later hearing on appellant’s motion for mistrial prosecutrix denied having gone to the restroom with her sister even though the sister confirmed that she had. Prose-cutrix further denied having any conversation with her sister during a lunch break on that day but this was also contradicted by the sister. Even though there is no direct evidence that prosecutrix and her sister violated the rule, we believe that all of the circumstances lead only to the conclusion that they did. Prosecutrix’s response, “Uh-huh, he’s number four”, cannot be called a coincidence.

The question arises, therefore, whether the trial court erred in denying a mistrial after this violation. Of course, the decision as to whether a witness who has violated the rule may thereafter testify is within the sole discretion of the trial court. Pena v. State, 662 S.W.2d 430, 434 (Tex.App.—Corpus Christi, 1983, no pet.), citing Beecham v. State, 580 S.W.2d 588 (Tex.Crim.App.1979). Great latitude is given the trial judge and the exercise of his discretion will not be reversed on appeal except in cases of clear abuse. Owens v. State, 503 S.W.2d 271, 273 (Tex.Crim.App.1974). Here, we hold there was clear abuse of discretion — viewing the matter in its entirety — and that a mistrial should have been granted. Therefore, the appellant’s first ground of error is sustained.

In so holding, we do not cast any reflection on the trial judge. Abuse of discretion does not imply intentional wrong or bad faith, or misconduct, but means only an erroneous conclusion. State v. Draper, 83 Utah 115, 27 P.2d 39, 50 (1933).

Since this case is being reversed and remanded on the appellant’s first ground of error, it is not necessary for us to address the remaining two grounds.

Reversed and remanded.


text:
    Jack Richard GOBIN, Jr., Appellant, v. The STATE of Texas, State.
    Nos. 2-84-053-CR to 2-84-055-CR.
    Court of Appeals of Texas, Fort Worth.
    Feb. 13, 1985.

      Robert J. Wilson & Associates, Inc. and Robert J. Wilson, Burleson, for appellant.
    Tim Curry, Criminal Dist. Atty. and Mary Thornton Taylor, Fort Worth, for ap-pellee.
    FENDER, C.J., and BURDOCK and GRAY, JJ.
   OPINION

GRAY, Justice.

Jack Richard Gobin, Jr. has appealed his conviction on three counts of delivery of a controlled substance, to-wit: amphetamine less than 200 grams. The case was tried to a jury which returned a verdict of guilty and then assessed a punishment of three concurrent sentences: two three-year sentences in the Texas Department of Corrections and one eight-year probated sentence.

We reverse and remand for a new trial.

The evidence shows that Kathy Ward, an undercover narcotics agent for the Fort Worth Police Department, was introduced to a police informant who was then under indictment for auto theft. The informant led Officer Ward to the home of appellant and appellant’s wife for the purpose of buying amphetamine. Officer Ward testified that, at that time, appellant stated that he was waiting on his supplier, named Wes, to deliver the drugs and did not then have any in his possession. On three later occasions, appellant sold amphetamine to Officer Ward and was arrested the third time. At the time of arrest, a pistol was found in the car appellant was driving.

At trial, appellant claimed that the informant was the appellant’s roommate and that the informant provided the appellant with drugs to supply the appellant’s addiction. The appellant testified that the informant came to him and asked him to sell some amphetamine to a school friend of the informant’s (Officer Ward posed as that friend), and that he flatly refused to do so the first time he was introduced to the school friend. The appellant claimed that the informant threatened to withhold drugs and rent money from appellant if appellant did not sell amphetamine to Officer Ward, and that appellant would not otherwise have done so. The appellant also testified that the informant supplied the drugs which were eventually sold to Officer Ward.

Based on these alleged facts, appellant asserted the defense of entrapment under TEX.PENAL CODE ANN. sec. 8.06 (Vernon 1974). Appellant tried to introduce several indictments pending against the informant to show that the informant had an incentive to cooperate with the police and to help them “make a case.” The trial court refused to admit the indictments. The trial court also refused a directed verdict of acquittal based on entrapment and refused an instruction on entrapment in the charge. The pistol was admitted into evidence.

The appellant’s first ground of error complains of the trial court’s denial of an instructed verdict of acquittal. The second ground of error complains of the denial of an instruction on entrapment in the charge. We will discuss these two grounds together.

Section 8.06 reads as follows:

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Id.

Thus, the issue of entrapment in this case was two-pronged: (1) was the informant acting under police instructions, and (2) if so, did his conduct constitute persuasion or other means likely to cause the appellant to commit the offense, excluding conduct which merely afforded the appellant an opportunity to do so? The State argues that there was no evidence of either prong to support an instruction on entrapment or an instructed verdict of acquittal.

On the first prong, the State admits that the informant was acting in concert with the police, but alleges that if the informant used any illegal means to induce the appellant to commit the crimes charged, he did so without the knowledge or consent of the police. The State argues that the first prong of the issue of entrapment was not raised and that neither an instruction on entrapment nor an instructed verdict thereon was warranted because the appellant presented no evidence that the informant was acting under specific instructions from the police to entrap the appellant or that he was under their general control, as required by Rangel v. State, 585 S.W.2d 695, 699 (Tex.Crim.App.1979). We agree that an instructed verdict was not warranted, but we think there was justification for an instruction on entrapment.

Though the evidence was far from conclusive, there was some evidence that the informant was under the general control of the police. At trial, appellant was prevented from introducing three indictments pending against the informant to show that the informant’s conduct was under the control of the police. The State cites Taylor v. State, 612 S.W.2d 566, 571 (Tex.Crim.App.1981) as authority for the exclusion of such evidence. However, that case is not on point. In Taylor, the informant was not the person who had allegedly entrapped the defendant into criminal conduct, but rather, the police officer had allegedly done so. In that case, the question of whether or not the informant was under police control was not in issue. In the case at hand, the informant himself allegedly entrapped the appellant. He was more than an informant, he was an active participant. Therefore, the question of whether he was under police control is in issue, even though the informant did not testify.

We should point out that the recent opinion in Soto v. State, 681 S.W.2d 602 (Tex.Crim.App.1984) does not control the issue of whether an instruction on entrapment should have been submitted to the jury. In Soto, the judge was the trier of fact and was authorized to weigh the evidence. In the case at bar, the jury was the trier of fact, and if any evidence existed to support the allegation that the informant was acting under police control, then the first prong was raised. We hold that there was such evidence and that the first prong of the entrapment defense was raised, though not proven conclusively.

The second prong of the entrapment defense is whether the appellant was induced to commit a crime by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense; with the caveat that conduct merely affording appellant an opportunity to commit an offense does not constitute entrapment.

The appellant alleges that the informant threatened to withhold drugs which the appellant needed for his own addiction unless appellant sold drugs to Officer Ward. Appellant also alleges that the informant threatened to withhold his share of the rent which was due.

The State cites Bush v. State, 611 S.W.2d 428, 432 (Tex.Crim.App.1980) (on rehearing) to show that “[a] promise to get appellant high on dope is so unlikely to induce a person not already so disposed, to commit the criminal offense charged as to not even raise the issue of entrapment.” Since we are bound to follow this decision, we hold that the informant’s alleged threats to withhold drugs did not constitute evidence which could help raise an issue of entrapment.

The alleged threat to withhold rent money is different. There is no authority to the effect that such a threat would not induce a person to commit a crime who is not already so disposed. Furthermore, we are not prepared to rule that, as a matter of law, people cannot be induced to commit crimes for money.

Once again, the proof of the appellant’s entrapment was far from the conclusive evidence which was needed to support an instructed verdict. For instance, if the informant supplied the drugs to be sold to Officer Ward, if Officer Ward posed as the informant’s friend, and if the appellant did not want to sell the drugs to the informant’s friend, why didn’t the appellant simply tell the informant to sell his own drugs to his own friend? Nevertheless, the veracity of the witness is for the jury to decide. Since the appellant testified to allegations which, if true, would constitute entrapment, the second prong of entrapment was raised and appellant was entitled to have an instruction on entrapment submitted to the jury.

We hold that the trial court did not err in refusing a directed verdict on entrapment, but did err in refusing an instruction thereon in the charge. The appellant’s first ground of error is overruled, but his second ground of error is sustained.

The appellant’s third ground of error complains that the trial court erred in allowing a pistol to be admitted into evidence because it was evidence of an extraneous offense. The State contends that it was part of the “res gestae” of the offense.

The State cites Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex.Crim.App.1972), which stated six exceptions to the rule excluding evidence of extraneous offenses: (1) to show the context in which the criminal act occurred — the “res gestae”; (2) to circumstantially prove identity; (3) to prove scienter; (4) to prove malice; (5) to show motive; or (6) to refute a defensive theory. The State relies on the first exception— “res gestae” — to justify admission of the pistol into evidence.

“The test for determining the admissibility of any type of evidence is whether the probative value outweighs its inflammatory aspects, if any.” Id. at 99.

The appellant in this case did not deny selling amphetamine to Officer Ward, nor did he deny that he knew that he was committing a crime. Therefore, the pistol had no probative value whatsoever in establishing the State’s ease-in-chief. We hold that the pistol should not have been admitted into evidence as part of the State’s case-in-chief where the elements of the crime were undisputed. See Jones v. State, 481 S.W.2d 900, 902 (Tex.Crim.App.1972).

However, we believe that the pistol was relevant to a defensive theory raised by the appellant and would, therefore, be admissible under the sixth exception of Albrecht, 486 S.W.2d at 101. By raising the defense of entrapment, the appellant was telling the court that he had not been involved in the selling of amphetamine until the informant coerced him in that direction. The existence of the pistol in the car the appellant was driving tends to refute this defense. Thus, even though the appellant cannot be tried for being a criminal generally, Albrecht, 486 S.W.2d at 100, we hold that it was he who gave the pistol its probative value and that the pistol may be admitted into evidence to refute the defense of entrapment. The appellant’s third ground of error is overruled.

Beversed and remanded.