author: EVANS, Chief Justice.

text:
    Vincente Cesar VEGA, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0738-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    May 31, 1984.
    Rehearing Denied July 25, 1984.

      Bob Tarrant, Houston, for appellant.
    Karen Zellars, Houston, for appellee.
    Before EVANS, C.J., and WARREN and BULLOCK, JJ.
   OPINION

EVANS, Chief Justice.

The appellant was tried before the court upon stipulated evidence, and the court found him guilty of possession of heroin and assessed his punishment at twelve years confinement.

The stipulated evidence indicates that officers of the Houston Police Department obtained a warrant to search the appellant’s residence in June 1983. When the officers arrived at appellant’s house, he tried to leave through the back door, but was brought back into the house and read the Miranda warnings. Then according to the recitation in the record,

Officer Farrar asked [appellant] if he had any heroin in his house. [Appellant] told Officer Farrar “yes” and took Officer Farrar to his bedroom. [Appellant] opened the drawer to the nightstand and Officer Farrar recovered two bags of a brown chunky substance.

In his first ground of error, the appellant contends that the stipulated evidence showing the chain of custody of the bags seized by Officer Farrar is insufficient to prove beyond a reasonable doubt that the substance tested by the police chemist and found to be heroin was the substance recovered from appellant’s residence.

There was no objection at trial that the chemist’s report was not admissible. Appellant therefore waived his right to complain on appeal of an alleged defect in the State’s predicate to the report’s admission. Moreover, the appellant’s admission that he had heroin in his house tends to tie the substance in the two bags recovered by the officers during the search to the two bags containing a substance analyzed by the police chemist as heroin. We find the evidence is sufficient to show the appellant’s possession of heroin, and we overrule his first ground of error.

The appellant next contends that the omission of the word “The”, before the words “State of Texas” in the style of the search warrant renders it fundamentally defective, arguing that the Tex. Const, art. V, sec. 12 and Tex.Crim.Proc.Code art. 18.-04 require the style to read: “The State of Texas.” The same argument was raised by appellant and his attorney six months earlier in a case not mentioned in appellant’s brief in the instant appeal, Vega v. State, 662 S.W.2d 667 (Tex.App.—Houston [1st Dist.] 1983), rev’d on other grounds, No. TC-84-15-005 (Tex.Crim.App., April 11, 1984) (not yet reported). In that case, this court held that appellant’s failure to object at trial to the style of the warrant waived any right to complain on appeal. In the present case, appellant did object at trial to the omission, so that the asserted error was preserved.

The constitutional provision invoked by appellant is located in Article V of the Texas Constitution, and that article concerns the state judiciary, not citizens’ rights. Citizens generally do not have standing to complain of violations of provisions of the Constitution unless they can demonstrate some reliance on that provision and some injury resulting from its violation. Mouton v. State, 627 S.W.2d 765 (Tex.App.—Houston [1st Dist.] 1981, no pet.). Here, appellant has not alleged how he was harmed by the defect in the style of the warrant, and absent some showing of harm, there is no basis for a reversal of his conviction. The second ground of error is overruled.

In his third ground of error the appellant contends that the trial court erred in overruling his motion to suppress because the affidavit upon which the search warrant was issued did not justify the court’s finding that probable cause existed. The thrust of appellant’s argument is that the affidavit does not allege that heroin could be found in the appellant’s home or that heroin was actually seen in appellant’s possession.

The affidavit recites that the attesting officer has received information “from a reliable and credible informant” that the appellant was “dealing heroin from his house located at 4639 Rusk.” According to the affidavit, this information was based upon a transaction the informant had witnessed earlier that day, when he was at appellant’s front door. This informant stated that he heard the appellant “tell an unknown Latin American male that he had plenty quarters of heroin,” if anyone wanted some. The appellant then sold this person “a tin foil paper that the informant was told contained heroin, for an undetermined cash currency.” The informant also said that he knew that the buyer was a user of heroin.

The affidavit further recited that appellant’s house had been searched a year earlier, that heroin had been found at that time, and that appellant had been arrested. It additionally stated that the informant had given true and correct information to the police officer on more than three prior occasions.

The allegations in the affidavit support the magistrate’s determination that a search of the house would probably result in confiscation of heroin. The affidavit explained that heroin had been found at that location in the past and that appellant apparently was selling heroin from this location again. It was reasonable for the magistrate to conclude from these facts that a search of appellant’s house would yield heroin. Furthermore, the magistrate was entitled to rely on the facts supplied by the informant because tips from the informant had been reliable in the past. The statement in the affidavit that the informant was known to be reliable made it unnecessary to independently corroborate the allegations in the affidavit. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

The third ground of error is overruled.

In his fourth ground of error, the appellant contends that the affidavit and search warrant are fatally defective because there is no allegation that the appellant “knowingly or intentionally” possessed the controlled substance, heroin, and therefore failed to allege an offense against the laws of the State of Texas. Appellant relies primarily upon cases relating to indictments and court charges, for authority that search warrants must allege a culpable mental state.

We overrule this ground of error. The principal function of an affidavit made in support of a search warrant is to provide the reviewing magistrate with sufficient verified information to determine whether the search warrant is justified and to prevent arbitrary and unconstitutional searches. The search warrant and affidavit serve no notice function to an accused, so there is no sound policy reason for the extension of the strict technical requirements imposed on charging instruments to search warrants and probable cause affidavits. The appellant also relies on this court’s opinion in McInnis v. State, 634 S.W.2d 912, (Tex.App.-Houston [1st Dist.] 1982), rev’d 657 S.W.2d 113. In McInnis, this court invalidated a conviction for exhibiting commercial obscenity because, among other reasons, the arrest warrant failed to allege that appellant knew the content of the film he was projecting. The Court of Criminal Appeals reversed, holding that before the appellant might complain of the arrest, he must demonstrate how he was harmed by the arrest. We conclude, under the circumstances, that the statement relied upon by appellant in Mcln-nis, is dictum, and we do not consider it controlling here.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: ESQUIVEL, Justice.

license: Public Domain

text:
    Dick LUBEL, Trustee, Appellant, v. J.H. UPTMORE & ASSOCIATES & J.H. Uptmore, Individually, Appellees.
    No. 04-82-00417-CV.
    Court of Appeals of Texas, San Antonio.
    June 27, 1984.
    Leif M. Clark, Cox & Smith, San Antonio, for appellant.
    Sidney D. Callender, San Antonio, for appellees.
    Before ESQUIVEL, REEVES and TI-JERINA, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from the granting of a directed verdict at the close of plaintiff’s case in a suit for reformation and specific performance of a contract for the sale of land. We affirm.

The facts of the case are as follows. In May of 1977, Dick Lubel (Lubel), the appellant herein, entered into an earnest money contract with J.H. Uptmore & Associates (Uptmore), the appellees herein, for the purchase of a tract of land owned by Upt-more in the San Pedro North subdivision on the east frontage road of U.S. Highway 281. The tract under consideration was located in an unplatted section of County Block 4991, immediately adjacent to an un-platted L-shaped tract known as Lot 13, Subdivision 5 of the San Pedro North subdivision. A plat of the area had been prepared; however, Uptmore had delayed its recordation pending the addition to the plat the property subject of this lawsuit. The property, roughly the shape of a rectangle, was adjacent to the L-shaped tract that Uptmore planned to use for the construction of mini warehouses. The parties, upon executing the contract, also initialled a map of the area with the proposed property outlined in red, said map being attached to the earnest money contract and constituting the sole description of the property.

Approximately two and one-half years later, the only impediment to the consumation of the sale was a city-imposed requirement that a drainage pond be created. It was at this point that Uptmore raised the insufficiency of the description of the tract to excuse himself from performance under the contract. This lawsuit was filed by Lubel seeking reformation so as to include a proper legal description of the tract, and specific performance thereunder. Uptmore moved for and received a directed verdict at the close of Lubel’s case.

Lubel presents four points of error. Our disposition of the first point obviates the need to address points two, three and four.

In reviewing an assignment that alleges error in the granting of a directed verdict, this court must consider only the evidence and inferences most favorable to the one against whom the directed verdict was granted; in this case Lubel. See Jones v. Tarrant Utility Co., 638 S.W.2d 862, 865 (Tex.1982). If there is any evidence of probative force to raise a fact issue on Lubel’s theories of recovery, then we must remand the case for a new trial. Id.

In point of error one, Lubel alleges that he raised sufficient evidence under each element of his cause of action to require the submission of his case to the jury, such that it was error for the trial court to grant the Uptmore’s motion for directed verdict. Lubel’s primary support for his contention is the opinion of the Eastland Court of Civil Appeals in Shotwell v. Morrow, 498 S.W.2d 432 (Tex.Civ.App.—Eastland 1973, writ ref’d n.r.e.). Lubel attempts to put himself squarely within the rule laid down by that opinion.

In Shotwell v. Morrow, 461 S.W.2d 527 (Tex.Civ.App.—Eastland 1970), rev’d, 477 S.W.2d 538 (Tex.1972), the appellee agreed to sell to appellant two tracts of land. When Shotwell refused to convey, Morrow sued for specific performance. The description of the first tract was found to be sufficient at both the trial and appellate levels. As to the second tract, the court held the description to be insufficient to meet the requirements of the Statute of Fraudsj TEX.BUS. & COM.CODE ANN. § 26.01, and reversed and rendered as to that tract so that Morrow take nothing. Id. 461 S.W.2d at 528.

An application for writ of error was granted by the Texas Supreme Court. In its opinion, the court agreed with the court of civil appeals’ opinion that the second tract was insufficiently described. Morrow v. Shotwell, 477 S.W.2d 538, 541 (Tex.1972). The court, however, reversed the case and remanded it to the trial court “in the interest of justice” so as to enable Morrow to replead an action for reformation.

The supreme court’s opinion, Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972), established a "two part exception to the general rule of the Statute of Frauds. Where a description is otherwise insufficient, but the record contains both: (1) strong evidence that the parties intended to describe a particular and identified tract in their contract, and (2) that the parties were mutually mistaken in their belief that the description used was legally sufficient for that purpose, then reformation and specific performance are proper remedies.

In the instant case, it is undisputed that the property description is insufficient and fails under the Statute of Frauds. In fact, only by admitting this may the Lubel attempt to invoke Morrow in his favor. As to the requirement of strong evidence of an intent to convey a specific tract of land, the court of civil appeals in the second Shot-well appeal, 498 S.W.2d at 435, noted that: (1) at the time the contract was signed, Morrow paid Shotwell $7,900.00; (2) Morrow went into immediate possession of the tract and remained so during the pendancy of the trial and appeal; and (3) Morrow had farmed the first tract as Shotwell’s tenant for several years.

The record in our case contains no such “strong evidence.” After the contract was signed, Lubel did not take possession of the property, nor had he and Uptmore had a business or other relationship in the past with regard to the tract in question so as to warrant a conclusion that the parties knew exactly which property was the subject of • their agreement.

Significantly, the exhibit constituting the description of the property was prepared from a drawing provided to Lubel by Upt-more. The drawing was not introduced into evidence at trial because Lubel could not find it. Upon examination of the drawing attached to the contract, it is evident that the proposed mini warehouse site’s frontage on U.S. Highway 281 does not have a distance. It is obvious that one could, for instance, locate either the Dairy Queen or Pizza Hut site by going in a southerly direction either 100 or 200 feet from the southern boundary of the private road. Since there is no frontage distance for the mini warehouse site, however, a precise beginning point for the subject tract agreed on by the parties is non-existent.

Lubel himself testified, on cross-examination, that there was no iron stake or other mark on the property at the time of the execution of the contract. He further testified that before the tract was staked, he could not find the starting point of the subject property. When asked how he “knew” that the mini warehouse site was to have 100 feet of frontage, Lubel replied “[t]hat site was agreed on because there were also some other drawings that were looked at that showed the mini warehouse sites on this tract, which is not even here in evidence.” There are no “other drawings” in the record and no reference on the contract exhibit to another source whereby the frontage for the mini warehouse site could be determined.

Although the record contains evidence that the subject tract was 175 feet of frontage on U.S. Highway 281 and 200 feet deep and included an easement for ingress and egress, the record contains no evidence of probative force, strong or otherwise, that the parties intended to describe a particular and identified tract in their contract. We need go no further. The rule of Morrow v. Shotwell will apply only where there is a misdescription, not a failure of identification. Morrow, All S.W.2d at 541. Viewing only the evidence and inferences most favorable to Lubel we conclude that there is a failure of identification and accordingly Lubel is not entitled to reformation and specific performance.

Accordingly, the trial court did not err in granting the directed verdict in Uptmore’s favor at the close of Lubel’s case. For that reason, a determination of Lubel’s remaining points of error would be fruitless. We, therefore, will not address them.

The judgment of the trial court is affirmed.

      . This drawing refers to no other drawing or description. The contract and drawing are reproduced at the end of this opinion.

      . On remand, Morrow pled an action for reformation and specific performance. The jury found in his favor and on appeal to the Eastland court, the judgment was affirmed. The application for writ was refused, no reversible error.


author: ROWE, Justice. STOREY, Justice,

text:
    Shirley KRAMER, Appellant, v. Fred DOWNEY, Appellee.
    No. 05-83-00178-CV.
    Court of Appeals of Texas, Dallas.
    July 17, 1984.
    Rehearing Denied Sept. 6, 1984.
    Shirley Kramer, pro se.
    John W. Henvey, Dallas, for appellee.
    Before STOREY, WHITHAM and ROWE, JJ.
   ROWE, Justice.

In this tort action Fred Downey obtained a money judgment and a permanent injunction against Shirley Kramer. Although the parties properly characterized this as being an invasion of privacy case, the specific thrust of Downey’s complaint is the harassment he endured almost daily over a number of years from offensive activities engaged in by Kramer to force him to have a personal relationship with her when he desired none. Finding the pleadings and the evidence sufficient to support the money judgment and finding the injunctive relief to be appropriate under the circumstances, we affirm the judgment of the trial court.

Kramer has characterized this action as being “one woman’s novel solution to being swept into oblivion.” According to her, after Downey interrupted a regular pattern of sexual intimacy with her, she merely “maintained visual contact with him in public places to fill the emptiness in her life.” Little of what this “visual contact” entailed is disputed by Kramer; indeed, she maintains that with impunity she had a right to freely express herself by playing a “cat and mouse game” so long as she kept her distance from Downey, always stayed on public property and always skirted arrest by the police. We cannot agree that, by so doing, she shielded herself from civil liability for mental suffering caused thereby to Downey. To the contrary, the rule in Texas is that damages are recoverable for mental suffering (even if unaccompanied by physical suffering) when the wrong complained of is a willful one intended by the wrongdoer to produce mental anguish or from which such result should be reasonably anticipated as a natural consequence. Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 939 (Tex. 1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex.1967); Stafford v. Steward, 295 S.W.2d 665, 667 (Tex.Civ.App.—Eastland 1956, writ dism’d by agr.). Invasion of one’s right to privacy is such a wrong. Billings v. Atkinson, 489 S.W.2d 858 (Tex. 1973). Although it has not previously been so held in this State, we now hold that the right to privacy is broad enough to include the right to be free of those willful intrusions into one’s personal life at home and at work which occurred in this case. Further, this right to be left alone from unwanted attention may be protected, in a proper case, by injunctive relief. Hawks v. Yancey, 265 S.W. 233 (Tex.Civ.App.—Dallas 1924, no writ).

The evidence shows that, when after a brief extra-marital affair Downey told Kramer he did not want to see her anymore, she did not yield to his wishes but instead began a pattern of conduct to thrust herself into his presence and otherwise to disrupt his domestic and professional life. Several days a week, for several years, Kramer would be at Downey’s home when he left for work or at his office when he left for lunch or for dinner and would follow him to his destination, always on a motor scooter or bicycle. She followed him as well on trips he made with his wife and children to school during the day and to restaurants in the evening. Often Kramer was observed waiting in the park across the street from the Downey residence or outside the office entrance to the hospital where Downey worked. At many of these times, she was attired in a fashion so unusual as to attract the attention of Dow-ney's acquaintances. Downey’s wife, daughter, neighbors and co-workers witnessed these activities, and some overheard Kramer on occasion make sexually vulgar remarks to Downey. In addition, by devious means, Kramer caused to be delivered to Downey numerous unwanted letters, cards and gifts. Downey testified that Kramer’s incessant behavior increasingly caused him to be upset, agitated, depressed and fearful for the safety of himself and his family. He became unable to sleep at night and unable to concentrate at work; finally, he sought psychological counseling.

The jury by its verdict found that Kramer: (1) followed, spied upon and harassed Downey; and (2) tried to force Dow-ney to have a personal relationship with her when he desired none. These actions by Kramer were found to be: (1) a proximate cause of damage to Downey; and (2) an intrusion upon his seclusion or solitude or into his private affairs. Actual damages were found to be in the amount of $1,000.00. Exemplary damages were assessed at $25,000.00 of which $13,500.00 were remitted. The jury also found that an award of money damages alone was not reasonably likely to deter Kramer from her course of conduct, this being tantamount in our opinion to a finding of malice. Although the incomplete statement of facts appearing in this record authorizes a presumption that all jury findings have adequate support in the evidence, a resort to this presumption is unnecessary because the above jury findings are sufficient to support the judgment and have adequate support in that partial statement of facts which is before us. Accordingly, without merit are Kramer’s no evidence and factually insufficient evidence points, the point concerning absence of a malice finding, and those two points concerning requested but refused special issues on collateral and noncontrolling matters. Kramer’s first eleven points of error are overruled.

By her twelfth and thirteenth points of error, Kramer complains about the trial court’s failure to give any controlling weight to Downey’s promiscuity, certain proffered evidence thereon having been excluded and injunctive relief notwithstanding having been granted to him. On these grounds we find no reversible error. We are cited no cases (and have found none through our own research) granting this claimed defense to a perpetrator of a willful tort of the type involved here. Without intending to sanction extra-marital affairs, we decline to hold that Kramer was justified in treating Downey the way she did because Downey’s own sexual immorality made him unworthy of judicial relief. Kramer’s twelfth and thirteenth points of error are overruled.

Kramer’s remaining four points of error address certain provisions of the injunction pertaining to restraints on her conduct. She complains that the language used to control her conduct is so broad that not only does the injunction decree fail to give her fair notice of what is being restricted, but also it impinges unduly on the exercise of her constitutional rights. At the outset we agree that, while injunctive relief designed to prevent the abuse of personal harassment will encounter these two evils, it must, nonetheless, avoid them. Whether the evils are in fact reasonably avoided requires a judgment call. To that end, we have reviewed the decree of injunction before us and find it satisfactory. The format adopted by the trial judge is similar to that devised and used regularly in domestic relations cases to minimize friction between estranged couples. The restraints reach only so far as will prevent activities motivated by certain purposes that are condemned. While this device may not be perfect, it has proven to be useful without being unacceptably harsh. Should any unique inequity arise from its application in this action, an appropriate redress can be fashioned by the trial judge when enforcement of the injunction is placed at issue.

Affirmed.

STOREY, Justice,

dissenting.

I respectfully dissent. This case presents classic proof of the old aphorism: “hard facts make bad law.” I cannot condone the reprehensible conduct of this appellant — all freely admitted by her. Rather, my point of departure from the majority is its failure to exercise judicial restraint. The majority, holding extends the holding of the supreme court in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), so far as to virtually create a new tort in Texas. This should be left to the court of last resort. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 791 (Tex.1967); Mans v. National Living Centers, Inc., 633 S.W.2d 674, 676 (Tex.App.—Austin 1982, writ ref’d n.r.e.).

I would reverse and remand with instructions to dismiss.


author: HALL, Justice.

text:
    Billie Joe PENTYCUFF, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-246-CR.
    Court of Appeals of Texas, Waco.
    July 26, 1984.
    Rehearing Denied August 16, 1984.
    Discretionary Review Refused As Untimely Filed Nov. 1, 1984.
    Charles M. McDonald, Merrilee L. Harmon, McDonald, Harmon & Malone, Waco, for appellant.
    Vic Feazell, Crim. Dist. Atty., J. Patrick Murphy, Chief Deputy Dist. Atty., Kenneth L. Abies, E. Crawford Long, Asst. Dist. Attys., Waco, for appellee.
   HALL, Justice.

Pleading not guilty, appellant Billie Joe Pentycuff was found guilty by a jury on May 12, 1983, for committing the felony offense of driving while intoxicated on June 12, 1982, proscribed at that time in Vernon’s Texas Civil Statutes Art. 6701/-2. The jury assessed punishment at confinement in the Texas Department of Corrections for a term of five years. This appeal resulted from judgment rendered on these verdicts. We affirm.

The State’s evidence showed that the two arresting officers observed appellant’s motor vehicle, with appellant driving, twice weave across the line dividing the southbound lanes for traffic on a public highway in the City of Lacy Lakeview shortly before appellant drove the vehicle onto a parking lot behind a night club that adjoined the highway. After all were out of their vehicles on the parking lot, the officers con-eluded that appellant was extremely intoxicated based on their detailed observations of his attitude and demeanor, physical bearing, face, eyes, speech and the strong odor of alcoholic beverage on his breath. This evidence supports the conviction, and appellant does not assert otherwise. Appellant seeks reversal on grounds that the trial court erred (1) in failing over appellant’s objection to charge the jury on the defense of necessity, and (2) in failing to grant appellant’s challenge for cause of a venire person in violation of V.A.C.C.P., Art. 35.16(a)(9).

The defense of necessity is set forth in V.T.C.A., Penal Code § 9.22, as follows:

“Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law [proscribing] the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.”

Penal Code § 1.07(a)(31) provides that “In this code: ‘Reasonable belief means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor”; and the term “conduct” is defined in § 1.07(a)(8) to mean “an act or omission and its accompanying mental state.” Prior to this codification effective January 1, 1974, the defense of necessity was not available to the accused against a charge of driving while intoxicated. Butterfield v. State, 167 Tex.Cr.R. 64, 317 S.W.2d 943 (1958); Sansom v. State, 390 S.W.2d 279 (Tex.Cr.App.1965). Since the defense as set forth in the code requires a choice between two harms based upon a belief “that would be held by an ordinary and prudent man in the same circumstances as the actor,” and because by the standard definition of the term “intoxicated” as used in cases of driving while intoxicated the defendant has lost the “normal use” of his “mental faculties” by reason of the use of intoxicating liquor, the availability of the defense even in light of the statute might be questionable. This question has not been resolved by our Court of Criminal Appeals.

Assuming the defense proper in a case of driving while intoxicated, we hold it was not raised by the evidence in our ease. Appellant testified that he lived alone about one and one-fourth miles from the night club where he was arrested by the officers; that shortly before the incident of his arrest he waked from a nap sweating and with a high fever; that he checked his temperature and found it to be 103 degrees, and that he had pneumonia; that he had a twenty-four-hour pass for admittance to the Veterans Administration Hospital in Waco, and determined he should go to the hospital; that he tried to telephone his sister to take him to the hospital, but he was unable to contact her; that he believed a female friend of his named “Mitzi” was at the night club where he was arrested; and that he determined to drive the short distance to the club to get Mitzi to take him to the Veterans Administration Hospital. Appellant testified repeatedly that he had not consumed any alcoholic beverage on the day of his arrest nor during the entire week preceding his arrest. He said that he told the officers that he was not drunk. He said that because he had not consumed any alcoholic beverage he could not have had the odor of such beverage on his breath; and he testified that any undue actions on his part observed by the officers was caused by the state of his illness and not by intoxication. He stated he told the officers he was ill with pneumonia and that he requested they take him to the hospital.

The defense of necessity as set forth in the Penal Code, supra, requires a belief and determination on the part of the defendant that the commission of the offense charged against him is immediately necessary to avoid other imminent harm. Logically, a defendant who denies commission of the proscribed conduct could not have entertained this belief and he could not have made the choice. Without an admission that he committed the offense, the defendant is not entitled to the defense of necessity. Klein v. State, 662 S.W.2d 166, 170 (Tex.App.—Corpus Christi 1983, no pet.). In our case, appellant did not admit driving while intoxicated, he denied it. Appellant’s first ground of error is overruled.

Appellant challenged for cause three prospective jurors, Sanders, Honey-cutt and Turnmire. No other was named by appellant as objectionable to him. The challenges against Sanders and Honeycutt were sustained by the court: Turnmire had stated on examination that because several people in her family were alcoholics, she was strictly opposed to the drinking of alcoholic beverages in any form or fashion; that this feeling might “possibly interfere with [her] subconsciously” as a fair juror in this type of case; and that she felt “it might be best” that she not serve on this jury. After appellant’s challenge for cause of Turnmire was overruled, appellant requested an additional peremptory challenge “because of the fact that we had to take the said objectionable juror, namely, Mrs. Charlcie Turnmire.” This request for an additional strike was overruled. The record shows that appellant used all of his ten peremptory strikes, and that one was used on juror Turnmire. There is no showing in the record that appellant was forced to take a named juror who was objectionable to him. No injury is shown. Doggett v. State, 530 S.W.2d 552, 557 (Tex.Cr.App.1975). Appellant’s second ground of error is overruled.

The judgment is affirmed.


author: AKIN, Justice. GUILLOT, Justice,

text:
    Joe COSTELLO, Appellant, v. Robert W. JOHNSON and Marcia G. Johnson, Appellees.
    No. 05-83-00866-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 6, 1984.
    Rehearing Denied Sept. 5, 1984.

      Robert A. Ray, Tyler, for appellant.
    Robert L. Dillard, III, William Hays, Dallas, for appellees.
    Before AKIN, ALLEN and GUILLOT, JJ.
   AKIN, Justice.

This is an appeal by Joe Costello from a summary judgment granted plaintiffs, Robert W. Johnson and Marcia Johnson. Costello contends that the judge erred in granting summary judgment because the record does not show that the notice requirements of TEX.R.CIV.P. 166-A were met. In this respect, he argues that, when his attorney of record withdrew after the opposing attorney had served upon him the motion for summary judgment, the John-sons had the burden of showing receipt of notice of the motion and hearing by Costello. We hold that, when a party complies with TEX.R.CIV.P. 21a by a certificate of service upon opposing counsel, this raises a prima facie showing of notice. Additionally, since Costello filed a motion for new trial which neither set up a meritorious defense nor set forth reasons why Costello failed to respond to the motion or to reasonably explain why he did not do so, the trial court did not abuse its discretion in refusing to grant Costello a new trial. Accordingly, the judgment is affirmed.

This suit arose when the Johnsons sued Costello to collect two promissory notes in the sum of $32,500.00 plus interest and attorney’s fees. Costello answered by general denial. On March 8, 1983, the John-sons filed a motion for summary judgment supported by copies of the promissory notes attached to the Johnsons’ affidavit and the answers of Costello to requests for admission of facts, which judicially admitted the execution of the notes, their validity, demand, and the Johnsons’ acceleration of payment of the notes. The trial judge set the hearing on the motion for April 8, 1983. On March 14, 1983, the Johnsons’ attorney certified that the motion was served the same day by certified mail on Larry S. Parker, the attorney for Costello. Parker filed a motion to withdraw as Costello’s attorney of record on March 24, 1983. This motion purports to be signed by Costello as well as Parker. In this respect, the signature of Costello appears to be the same as that contained on the answers to requests for admissions. An order granting Parker’s motion to withdraw was granted by the trial judge on the same date.

Pursuant to the motion, a summary judgment hearing was had on April 8, 1983, and summary judgment granted on April 18, 1983. Costello apparently engaged his present attorney, who filed a motion for new trial on May 17, 1983, within the time when the trial court still had jurisdiction. Costello’s motion for new trial failed, however, to set up a meritorious defense or to allege facts under oath, which, if true, would show that Costello’s failure to respond to the motion for summary judgment was neither intentional nor the result of his conscious indifference, but was rather due to a mistake or accident on his part. Strackbein v. Prewitt, 671 S.W.2d 37 (Tex.1984); Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939); see Dallas Heating Co., Inc. v. Pardee, 561 S.W.2d 16, 19-20 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r. e.); see also Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.1966). In this respect, the motion for new trial did not allege, as Costello contends on appeal, that he did not receive notice of the motion or the hearing date. We here hold that the Craddock standard of review applies to a summary judgment default where the non-movant has failed to respond to the motion due to accident or mistake just as in the situation where a party fails to appear for the trial due to accident or mistake after answering and a default judgment is rendered. Because Costello’s motion for new trial failed to comport with the requirements of Crad-dock, no abuse of discretion is shown by the trial judge’s action in overruling the motion.

We also overrule Costello’s contention that notice of the hearing on the motion was not proper. In this respect, TEX. R.CIV.P. 166-A provides that the motion and supporting summary-judgment evidence must be served on the opposing party at least 21 days before hearing. Undis-putedly, the motion was filed and notice served on Costello’s prior counsel more than twenty-one days prior to the hearing, in accordance with TEX.R.CIY.P. 21a by posting by registered mail. Rule 21a further provides that service by mail is complete when the document is deposited, properly addressed, in a postal depository and that a written certificate to this effect shall be prima facie evidence of the fact of service.

Here, the record shows that the John-sons’ counsel signed a certificate of service stating that the motion was served upon Costello’s counsel on March 14, 1983. Although this certificate complies with the notice requirements of Rule 21a, Costello argues that he is entitled to a reversal unless the record affirmatively shows that Costello’s counsel received notice of the hearing. We cannot agree. We know of no authority for this proposition and, indeed, Costello’s reading of Rule 21a is contrary to the plain language of that rule.

Additionally, Costello asserts that because the certificate of service attached to the motion did not state that all supporting summary-judgment evidence was attached to the motion posted, the certificate is not prima facie evidence that the attached affidavits were indeed sent with the motion. We do not agree. The motion for summary judgment specifically refers to the “attached” exhibits by description and exhibit number. We hold that the attorney’s certificate which refers to the motion complies with rule 21a in that it is prima facie evidence that not only was notice of the motion itself given but also of all “attached” and described supporting affidavits and exhibits.

In support of his argument with respect to receipt of the notice of the motion for summary judgment, Costello cites Booker v. Hill, 570 S.W.2d 460 (Tex.Civ.App.—Waco 1978, no writ). In that case, the Waco Court of Civil Appeals reversed a summary judgment taken by default against the appellant on the apparent ground that since only nine days elapsed between the time of her attorney’s withdrawal from the case and the date of the hearing, “[ajssuming notice was mailed to defendant on September 12, 1977 (the record reflects she lived in California), it is physically impossible she could have had 10 days notice prior to September 21, 1977.” Booker, 570 S.W.2d at 463. We doubt the soundness of the decision in Booker because the defendant in that case was notified of the hearing by certified mail and the presumption that she could not have received it timely was not warranted by the facts recited in that opinion. Furthermore, as noted by that court in footnote 1, Booker, 570 S.W.2d at 462, error existed on the face of the record because plaintiffs petition set forth two different deeds describing different properties while the judgment rendered decreed title in the plaintiff to but one described property. Due to this confusion, that court noted that “such could not be properly adjudicated on the summary judgment.” Booker, 570 S.W.2d at 462. Consequently, we cannot say that the judgment of reversal was wrong.

Nevertheless, we expressly disagree with the Booker court’s statement that the record must show receipt of notice of the motion, which is contrary to the express language of rule 21a. We also note that Booker is distinguishable from our case with respect to notice in that Booker was on writ of error whereas here Costello filed a motion for new trial, which failed to allege lack of notice of the hearing. Accordingly, the judgment is affirmed.

GUILLOT, Justice,

concurring.

I concur in the result but must disagree with my colleagues’ treatment of this ease as one of a default judgment. A default judgment cannot be granted when an answer is on file. Corsicana Ready Mix v. Trinity Metroplex Division, General, Portland, Inc., 559 S.W.2d 423 (Tex.Civ. App.—Dallas 1977, no writ). It is undisputed that Costello filed an answer, so to characterize the judgment as one of default is incorrect. This judgment is also neither a judgment nihil dicit because Costello’s answer placed the merits of the case in issue nor a post-answer default judgment because there was no trial on the facts which was unattended by Costello. See Stoner v. Thompson, 578 S.W.2d 679, 682-683 (Tex.1979). Thus, Strackbein v. Prewitt, 671 S.W.2d 37 (1984); Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966); Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939); and Dallas Heating Co., Inc. v. Pardee, 561 S.W.2d 16, 19 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.), have no relevancy.

      . Rule 166A at that time specified a 10 day notice.


author: UTTER, Justice.

text:
    Thomas KOSTELNIK and Margaret Kostelnik, Appellants, v. Marie Martha ROBERTS, Appellee.
    No. 13-83-507-CV.
    Court of Appeals of Texas, Corpus Christi.
    Sept. 6, 1984.
    Rehearing Denied Oct. 25, 1984.

      David Roberts, Garner & Roberts, Port Lavaca, Terrell S. Mullins, County Atty., Hallettsville, for appellants.
    Timothy A. Watt, Wiley, Garwood, Stol-handske & Simons, William F. Stolhandske, Stolhandske, Simmons, Stolhandske, & Conley, San Antonio, for appellee.

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

UTTER, Justice.

This is a suit in which appellee sought to impose a constructive trust on certain property, which appellee had previously conveyed to appellants. Trial was before the court without a jury. We affirm the judgment of the trial court.

Since 1965, appellee and her husband lived in a mobile home which was located behind appellant’s residence. In October 1981, appellee and her husband moved from their mobile home into a convalescent home and conveyed to appellants certain property, including the mobile home, an automobile and $65,753.10. Between October 1981 and March 1982, appellee and her husband resided in the convalescent home. In March 1982, appellee’s husband died; and, subsequently, appellee decided to move to San Antonio and made demand upon appellants for the return of the property conveyed to them in 1981. Appellants refused to return the conveyed property; and, as a result of appellants’ refusal to return the property, appellee brought suit.

Upon trial to the court, the trial court found: (1) that there existed between the parties a confidential and fiduciary relationship; (2) that there were transfers of property and things of value made by ap-pellee and her husband to appellants; (3) that appellants had failed to prove the validity and fairness of the transfers made; (4) that the transfers were not intended as gifts; and, (5) that a constructive trust did exist.

In their first through third points of error, appellants complain of the sufficiency of the evidence to support the trial court’s express or implied findings (1) that a confidential and fiduciary relationship existed between the parties which was breached, thereby meriting the imposition of a constructive trust; and, (2) that the transfers were not intended as gifts.

In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App.—Corpus Christi 1981, writ ref’d n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

“A constructive trust arises where a conveyance is induced on agreement of a fiduciary or confidant to hold in trust for a reconveyance or other purpose, where the fiduciary or confidential relationship is one upon which the grantor justifiably can and does rely and where the agreement is breached, since the breach of the agreement is an abuse of the confidence, and it is not necessary to establish such a trust to show fraud or intent not to perform the agreement when it was made.” Mills v. Gray, 210 S.W.2d 985 (Tex.1948) at p. 988, citing 54 Am.Jur. 1978, § 233. Such confidential relationships may arise not only from technical fiduciary relationships, such as attorney-client, trustees cestui que trust, partner and partner, etc., but may arise informally from moral, social, domestic or purely personal relationships. Thig-pen v. Locke, 363 S.W.2d 247 (Tex.1962); Miller v. Huebner, 474 S.W.2d 587 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d. n.r.e.). Also, the confidential relationship must exist apart and prior to the transaction made the basis of this suit. Consolidated Gas & Equipment, Co. v. Thompson, 405 S.W.2d 333 (Tex.1966); Miller v. Huebner, 474 S.W.2d 587 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref’d. n.r.e.).

At trial, appellee testified that appellant Thomas Kostelnik was “real close to us. In fact, like a son,” and was “related through marriage.” The testimony further shows that appellant Thomas Kostel-nik knew that he had been made a beneficiary of appellee and her husband’s will, wherein they left “everything they owned” to appellants. Appellants had given appel-lee and her husband a lifetime lease on the land behind appellants’ residence on which appellee and her husband had lived on a mobile home from 1965 until 1981. Appellant Thomas Kostelnik, also, made bank deposits and paid bills for appellee and her husband and was an authorized signatory on appellee and her husband’s checking and savings accounts. In addition, appellants went to the grocery store and ran errands for appellee and her husband and drove appellee and her husband to doctor appointments.

Appellants, also, prepared appellee and her husband’s gift tax return and made application for Medicaid benefits on behalf of appellee and her husband. Furthermore, when appellee and her husband made their decision to enter the convalescent home, appellee and her husband confided this to appellants, and appellants offered to make and personally made the arrangements for their admission into the convalescent home. Appellee testified that, before they were moved into the convalescent home, she and her husband were told by Thomas Kostelnik “that we couldn’t have any property or anything” at Stevens Convalescent Home and that, “if we did go into Stevens, everything we had would be taken away from us.” Appellee further testified that, regarding their property, Thomas Kostelnik suggested that she and her husband “put it all in his name, and then Stevens wouldn’t get it away from us” and that it was upon that suggestion that “we agreed to let Tom keep our money and everything for us” until the time “when Bob got well, that everything would be in his name, if we got well, he would turn it back to us.” The evidence further shows that the agreement took place on October 7, 1981, and the actual transfers of money from checking and savings accounts and of the mobile home and automobile commenced on October 8, 1981. Appellee and her husband were transported to the bank and savings and loan by appellants. In addition, the evidence shows that appellee and her husband, in 1979, had advanced cash to appellant Thomas Kostelnik to pay for pre-paid burial contracts.

We hold that the existence of a confidential relationship is clearly evident in the record and the quantity and quality of evidence presented is more than sufficient to sustain the trial court’s express finding of a confidential relationship between the parties and its implied finding of a breach thereof. In addition, after having reviewed all of the evidence, we hold that there is sufficient evidence to sustain the trial court’s finding that the transfers were not intended as a gift. Appellants’ first through third points of error are overruled.

In their fourth point of error, appellants assert that the trial court erred in imposing a constructive trust upon the subject property because appellee did not come before the trial court of equity with “clean hands.” In their brief on appeal, appellants allege that the record demonstrates that appellee benefited from her gifts to appellants by having “defrauded the State of Texas by accepting Medicaid benefits” because she was allowed, due to her new financial status following the transfers of property, to receive Medicaid benefits from the State of Texas while residing in the convalescent home. Appellants contend that the subject transactions were questionable dealings made by appellee in order to become eligible for the Medicaid benefits, the receipt of which would result in unjust enrichment, which courts of equity are to prevent and not to encourage. Moreover, appellants contend that, if the judgment of the trial court imposing a constructive trust is allowed to stand, appellants will be injured by appellee’s conduct.

Regardless of the truthfulness of appellants’ allegations that appellee defrauded the State of Texas and of appellees’ possible participation in the alleged questionable dealings, appellants are not in a position to assert the “clean hands” doctrine. “The party to a suit, complaining that his opponent is in court with ‘unclean hands’ because of the latter’s conduct in the transaction out of which litigation arose, or with which it is connected, must show that he himself has been injured by such conduct, to justify the application of the principle to the case. The wrong must have been done to the defendant himself and not to some third party.” Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960). Furthermore, it is a matter within the sound discretion of the trial court to determine whether appellee has come into court with clean hands and whether the alleged fraudulent actions were such as to deny appellee relief. Hand v. State, 335 S.W.2d 410 (Tex.Civ.App. — Houston 1960, writ ref’d. n.r.e.). We hold that the trial court, sitting as a court of equity, did not abuse its discretion by failing to apply the “clean hands” doctrine to the instant case. Appellants’ fourth point of error is overruled.

In their fifth point of error, appellants assert that the trial court erred in imposing a lien on their real property, their alleged homestead entitled to protection from such liens, in violation of TEX. CONST, art. XVI § 50.

The initial burden of establishing that property is homestead property is on the claimant of homestead protection. Lifemark Corp. v. Merritt, 655 S.W.2d 310 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d. n.r.e.); see Burk Royalty Co. v. Riley, 475 S.W.2d 566 (Tex.1972). It is well settled in this State that, in order to establish homestead rights, the proof must show a combination of both overt acts of homestead usage and the intention on the part of the owner to claim the land as a homestead. Lifemark Corp. v. Merritt, 655 S.W.2d at p. 314; Sims v. Beeson, 545 S.W.2d 262 (Tex.Civ.App.—Tyler 1976, writ ref’d. n.r.e.); Prince v. North State Bank, 484 S.W.2d 405 (Tex.Civ.App.—Amarillo 1972, writ ref’d. n.r.e.). The only evidence bearing on the issue of homestead was that appellants lived on the real property, on which they built a new home, in part, with the funds which appellee and her husband had earlier conveyed to them. We hold that such evidence was insufficient to establish that the property was homestead property, which deserved homestead protection under TEX. CONST, art. XVI § 50 from the imposition of a judicial lien. Appellants’ fifth point of error is overruled.

The judgment of the trial court is AFFIRMED.

      . We, furthermore, note that it has long been decided that homestead exemption laws of this state were never intended to be, and cannot be, the haven of wrongfully obtained money or properties. Lifemark Corp. v. Merritt, 655 S.W.2d 310 (Tex.App.—Houston [14th Dist.] 1983, writ ref'd. n.r.e.); Baucum v. Texam Oil Corp., 423 S.W.2d 434 (Tex.Civ.App.—El Paso 1967, writ ref'd. n.r.e.).


author: GAMMAGE, Justice.

text:
    Nancy F. COLQUETTE, Appellant, v. Thomas A. FORBES, Appellee.
    No. 13635.
    Court of Appeals of Texas, Austin.
    Sept. 12, 1984.
    Rehearing Denied Oct. 3, 1984.

      Barry Bishop, L. Parker McNeill, Clark, Thomas, Winters & Shapiro, Austin, for appellant.
    Gary F. DeShazo, Davis, DeShazo & Gill, Dan R. Price, Lee & Price, Austin, for appellee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   GAMMAGE, Justice.

Nancy Colquette appeals from a judgment entered in favor of Thomas Forbes for acceleration of a note and foreclosure of an implied equitable vendor’s lien on certain real property. We will affirm the judgment of the trial court.

This case began as an action to collect a promissory note executed by Colquette in favor of Forbes pursuant to a property settlement agreement incident to their divorce. The terms of the note provided for it to become due five years from the date of execution, with immediate acceleration of maturity upon Colquette’s remarriage or upon her cohabitation with an unrelated adult male at her place of residence. This note was executed in exchange for Forbes’ conveyance of his interest in the house to Colquette. The property settlement agreement was approved by the trial court and incorporated into the divorce decree. No express lien was created to secure the note.

Forbes brought suit to collect the note alleging that Colquette had cohabitated with an adult male for more than three weeks, causing the note to mature according to its terms. Forbes further alleged that he had an implied equitable vendor’s lien on the house and sought foreclosure on that lien.

The trial court held that the note was then due, that an equitable vendor’s lien existed in favor of Forbes, ordered foreclosure of the lien, and entered judgment for Forbes.

In her two points of error Colquette asserts that the trial court erred in holding that an equitable vendor’s lien exists in favor of Forbes, and that acceleration of the note because of her cohabitation with an adult male violates her constitutional right of privacy.

Colquette’s first point of error asserts that the trial court erred in imposing an equitable lien on her property. She contends that no implied lien arises out of the division of property upon divorce, and that the establishment of an implied lien is barred by the doctrine of res judicata, because of the prior divorce judgment involving the parties. We disagree. Our Supreme Court recently ruled on the precise issue here presented in McGoodwin v. McGoodwin, 671 S.W.2d 880 (Tex.1984). The facts in that case are strikingly similar to those now before us. Justice Barrow, writing for the Court in McGoodwin, stated that the doctrine of res judicata does not apply where the divorced spouse seeks to enforce a vendor’s lien he contends arose when the divorce decree was rendered — a claim which could not have been litigated in the prior divorce action.

The opinion continues by stating that a divorce decree that approves a property settlement agreement by which [a spouse] agrees to pay a sum of money as consideration for the [other spouse’s] interest in a particular piece of real estate [implies] a vendor’s lien in favor of the [spouse conveying his or her interest].
⅜* ⅜ % ¡⅝ ⅜
Such an agreement though incorporated into a final divorce decree, is treated as a contract, and its legal force.and its meaning are governed by the law of contracts, not by the law of judgments, [citations omitted]. The property settlement provision now considered is one that directs the payment of money as consideration for the conveyance of an interest in real estate ....

In the case at bar, Schedule 2 of the Agreement Incident To Divorce lists those items set aside for Forbes in the Division of Assets portion of the agreement, including the promissory note from Colquette to Forbes, and along with the following language:

Notwithstanding any other provisions to the contrary, said note is for the husband’s ownership interest in [the house].

When purchased money is not paid and the deed to property contains no express lien, an implied lien nevertheless arises in favor of the vendor to secure payment of the purchase money. Such a vendor’s lien may be enforced by a suit brought for that purpose. Id.

Colquette further argues that if an implied lien existed, it was expressly waived by the provision in the Division of Assets section of the Agreement Incident to Divorce that “Wife shall own, possess, and enjoy, free from any claim of Husband, the property listed in Schedule 1,” which includes the house in question. In the McGoodwin case, however, the agreement of the parties provided that each was awarded possession of certain property and the other was “divested of all right, title, and interest in and to such property.” This appears to us to be a much more strongly worded expression of intent to relinquish any interest in the property conveyed, yet the Supreme Court did not find such boilerplate language sufficient to constitute a waiver of an implied lien.

Colquette’s first point of error is overruled.

In her second point of error, Colquette contends that acceleration of the indebtedness, based upon her cohabitation with an unrelated adult male, violates her constitutional right of privacy and is contrary to public policy. Forbes asserts that mere judicial enforcement of the note according to its terms is not such an intrusion into Colquette’s privacy as to be violative of the constitutional right of privacy as recognized in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). We agree.

Forbes correctly argues that the right of privacy prohibits “unwarranted government interference or intrusion into those areas deemed to be within the protected zone of privacy.” Industrial Foundation of the South v. Texas Industrial Accident Board, 540 S.W.2d 668, 679 (Tex. 1976), cert, denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). The acceleration clause about which Colquette complains is the product of mutual agreement of the parties. The only involvement by the state is judicial construction of the terms of the note and a judicial declaration of obligations according to the terms of the note. The only case Colquette cites, wherein judicial enforcement of private contractual obligations has been held to be sufficient governmental involvement to invoke the protections of the United States Constitution, is Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948). Shelley held that judicial enforcement of racially restrictive covenants was prohibited by the constitution. It is apparent to us that the justifications for the Shelley rule are not present in this case. Here, the affected parties consented to the intrusion — if acceleration of maturity of the debt and the particular conditions giving rise thereto can be construed as such — by their mutual acceptance of the terms of the note. Shelley is distinguishable in many other respects and strong policy reasons exist for that decision. We hold that, under the facts of this case, judicial approval of the property settlement agreement and subsequent enforcement of the obligations created therein are, in nature and degree, not the type of government involvement restrained by a constitutional right of privacy. Industrial Foundation of the South v. Texas Industrial Accident Board, supra.

We also reject Colquette’s contention that enforcement of the cohabitation clause would be contrary to public policy. She cites no authority to support this proposition. Furthermore, it appears that the purpose of the note and the agreement giving rise thereto was to provide Col-quette time to adjust and make arrangements to pay the note. In view of these considerations, we hold that enforcement of the note is not contrary to public policy. Colquette’s second point of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.


author: BROOKSHIRE, Justice. DIES, Chief Justice,

text:
    Roy Wayne WILSON, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-149 CR.
    Court of Appeals of Texas, Beaumont.
    Sept. 19, 1984.

      Harold J. Laine, Jr., Beaumont, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

BROOKSHIRE, Justice.

The appellant was charged by indictment with delivery of a controlled substance and by an enhancement paragraph with a prior final conviction of felony possession of marihuana. His plea was not guilty. The jury found appellant guilty of the primary offense. The enhancement paragraph was responded to with a plea of “true” made in open court by the attorney of record for the defense. The jury fixed punishment at twelve years confinement.

At the punishment stage the State introduced documentary evidence Exhibits 4, 5 and 6 showing that the appellant was (1) finally convicted on March 3, 1976, of the offense of felony possession of marihuana in Cause No. 32,907; (2) that he was finally convicted in Cause No. 32,734 on March 3, 1976, of felony possession of marihuana; and (3) he was finally convicted on March 3, 1983, for the misdemeanor crime of possession of pentazocine and talwin in Cause No. 98,241 in the County Court at Law of Jefferson County. The State rested after the documentary evidence was admitted without objection. The defense offered nothing.

The record is somewhat unclear and to a degree unsatisfactory. It shows that when the trial court handed the charge on the punishment phase of the trial to the attorneys, neither the State nor the defense made any objection at that time. The attorney for the appellant at trial stated to the court that “he may have an objection in the morning”. The court allowed this and recessed until 10:00 o’clock the following morning. The next day the court immediately started reading the charge to the jury at 10:00 a.m. In the record there were no objections made at that time by the appellant.

Afterwards, there was a change in the attorney of record for the appellant. The new attorney then requested a hearing to enter the omitted objections into the record. A hearing was held by the trial judge September 6, 1983, about five months after the verdict was returned. The new attorney argued that the appellant’s trial attorney had already objected to the inclusion of the portion of the punishment charge entitled “Objectives of Law”. The attorney further stated to the court:

“[Y]ou had, as you normally do, overruled him and there was an agreement that he could include it — his objection would be included. Then the trial came to a conclusion. I was appointed. I tried to get — there was a little bit of a communication mix up. I did drop off the objection that would normally have been included at that time, whereupon it was lost.
THE COURT: Was that not a written objection? The same one Mr. Sekaly has showed me?
MR. LAINE: Yes, Your Honor, that’s it.
THE COURT: I appreciate Mr. Fisher’s [assistant district attorney] concern it not being in the Record, but as I recall, it— and Mr. Sekaly is not here. Who was the prosecutor? As I recall — I would make this for the purposes of the bill to let the Record speak the truth. Mr. Se-kaly did hand me a written objection to that page of the charge and I indicated to him that it would be included in the Record and somehow or another that was not done. It was overruled. He did object to it. He did object to it in writing and that page apparently is missing somewhere or another. That occurred in Chambers and we intended to put it on the Record and never did. Is that not what you remember happened? That’s my recollection of what happened.
MR. LAINE: That’s my understanding. And Exhibit-A is a copy of that written objection and we would like to have it included. The only part that is not filled in is the page of the—
THE COURT: Well, is that the objection which was, in fact, made?
MR. LAINE: That’s the typed version. It was handwritten.” (Emphasis added)

We find no Exhibit A said to contain the objections in the record but we do find an informal motion for leave to supplement the record on appeal. Attached to the motion is Exhibit B which bears no style or number and is not certified to by the court reporter or by the court or agreed to by the State. It may be a typed version of another exhibit that was handwritten and lost. We think it is fair to say that we cannot know from this record exactly what the appellant’s original objections were.

Although the trial dockets are extremely heavy and without criticism toward anyone, we think it is salutary to have the official objections to the court’s charge certified by an officer of the court.

Nevertheless, out of abundance of precaution we have carefully considered Exhibit B and we feel that the objections are without merit. We do think, however, that it would have been preferable for the trial judge, when he gave the “Objectives of Law”, to have set forth in its entirety TEX. PENAL CODE ANN. sec. 1.02 (Vernon 1974) as follows:

“See. 1.02. Objectives of Code
The general purposes of this code are to establish a system of prohibitions, penalties, and correctional measures to deal with conduct that unjustifiably and inexcusably causes or threatens harm to those individual or public interests for which state protection is appropriate. To this end, the provisions of this code are intended, and shall be construed, to achieve the following objectives:
(1) to insure the public safety through:
(A) the deterrent influence of the penalties hereinafter provided;
(B) the rehabilitation of those convicted of violations of this code; and
(C) such punishment as may be necessary to prevent likely recurrence of criminal behavior;
(2) by definition and grading of offenses to give fair warning of what is prohibited and of the consequences of violation;
(3) to prescribe penalties that are proportionate to the seriousness of offenses and that permit recognition of differences in rehabilitation possibilities among individual offenders;
(4) to safeguard conduct that is without guilt from condemnation as criminal;
(5) to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons accused or convicted of offenses; and
(6) to define the scope of state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction.”

The trial judge charged as follows:

“OBJECTIVES OF LAW:
In arriving at your verdict, you should consider the following objectives of our criminal law:
(1) To insure the public safety through:
(A) The. deterrent influence of the penalties [sic] provided:
(B) The rehabilitation of those convicted, and;
(C) Punishment as may be necessary to prevent likely reoccurence of criminal behavior.
(2) To give fair warning of what is prohibited and of the consequences of violation.
(3) To prescribe penalties that are proportionate to the seriousness of the offense and that permits recognition of differences in rehabilitation possibilities among individual offenders.”

We note that the “Objectives of Code” should also be to safeguard conduct that is without guilt from condemnation as criminal; and to guide and limit the exercise of official discretion in law enforcement to prevent arbitrary or oppressive treatment of persons accused or convicted of offenses. “Objectives of Code” are also to define the scope of the state interest in law enforcement against specific offenses and to systematize the exercise of state criminal jurisdiction. These crucial objectives were omitted. The inclusion of the last three paragraphs of Section 1.02 would make the charge more balanced. We believe the better practice would be that, if the trial judge is going to charge on the “Objectives of Code”, he charge on all of them and not just part of them.

The appellant complains on appeal of four grounds of error all of which attack the court’s charge on “Objectives of Law”. The grounds of error are: (1) that his objections were overruled; (2) that part of the charge amounted to a comment on the weight of the evidence; (3) that it amounted to a failure to apply the law to the facts; and (4) that it amounted to a direction by the court to the jury to consider facts and circumstances not in evidence and outside the record.

Grounds of error two, three, and four have no application and are not relevant. They are disallowed. We do not think the charge as given on “Objectives of Law” was an expression of the opinion of the judge as to the weight of the evidence or the summing up of the testimony or discussion of the facts or of using an argument in his charge calculated to arouse the sympathy or excite the passions of the jury. Hence, we find no reversible error.

We do not interpret ground of error one to be an objection that only part of Section 1.02 was given, omitting the last three paragraphs which, we think, are arguably favorable to the appellant. We do not find merit in error one that parts of Section 1.02 “Objectives of Code” were deleted in a calculated manner as to be reasonably considered unfavorable to the appellant.

TEX.CODE CRIM.PROC.ANN. art. 36.U (Vernon Supp.1984) provides in part:

“The requirement that the objections to the court’s charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state’s counsel, before the reading of the court’s charge to the jury.” (Emphasis added)

Article 36.14, ⅛ relevant part, provides that appellant’s objections distinctly specify each ground of objection. This article was not complied with. If there were some prior objections in handwriting, they are not in the record.

TEX.CODE CRIM.PROC.ANN. art. 36.-19 (Vernon 1981) provides in pertinent part:

“Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14 ... has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.” (Emphasis added)

We find under this record that Article 36.-19 was not complied with.

We hold that the burden under this record is upon the appellant to show that the charge was calculated to injure his rights and that he did not have a fair and impartial trial.

The objections, if any, to the charge are irregular and informal. They were filed with us by motion without any certificate on October 26, 1983, six months after the judgment and sentence had been entered. It is an undue burden to require the trial court to remember in detail any verbal objections not included in the record.

We perceive that the enhancement paragraph and State’s exhibits of prior criminal records bring TEX.CODE CRIM.PROC. ANN. art. 37.07, sec. 3(b) (Vernon 1981), into play:

“After the introduction of such evidence has been concluded, and if the jury has the responsibility of assessing the punishment, the court shall give such additional written instructions as may be necessary and the order of procedure and the rules governing the conduct of the trial shall be the same as are applicable on the issue of guilt or innocence.”

In view of the prior record of this appellant and the verdict of the jury, we hold that no harm has been demonstrated by appellant. Finding no harmful reversible assigned error under the grounds of error presented to us, we affirm the judgment and sentence below.

AFFIRMED.

DIES, Chief Justice,

concurring.

I concur with the results of this opinion because a proper objection was not lodged against the “Objectives of Law”. However, it is my belief that neither TEX. PENAL CODE ANN. sec. 1.02 (Vernon 1974), “Objectives of Code”, nor the “Objectives of Law” as given by the court has any place in the court’s charge. See Hart v. State, 634 S.W.2d 714 (Tex.Crim.App.1982).


author: STEWART, Justice. GUILLOT, Justice,

text:
    BLS LIMOUSINE SERVICE, INC. and Abraham Altman, Appellants, v. BUSLEASE, INC., Appellee.
    No. 05-83-00446-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 24, 1984.
    Rehearing Denied Nov. 13, 1984.

      William C. Odeneal, Odeneal & Odeneal, Dallas, for appellants.
    Charles W. Cunningham, Johnson & Swanson, Dallas, for appellee.
   STEWART, Justice.

BLS Limousine Service, Inc., and Abraham Altman, non-resident defendants, appeal by writ of error from a default judgment against them for damages in the amount of $9,460.40, plus attorney’s fees. In five points of error BLS and Altman attack the judgment on the grounds that minimum contacts were not established by the pleadings or evidence; there was no showing that the Secretary of State of Texas mailed citation by regular mail; the evidence, was insufficient to support damages; and the two separate contracts will not sustain a default judgment. We affirm the trial court’s judgment.

Buslease, Inc., appellee, is a Texas corporation with its principal place of business in Dallas, Texas. BLS is a California corporation and has its principal place of business in Culver City, California. Altman is also domiciled in Culver City. Buslease entered into two agreements with BLS and Altman to lease intercity buses. Altman signed one lease agreement as president of BLS; the other he signed “Abraham Altman, personal.” When BLS and Altman failed to pay the amount of $2,460.40 due under the lease or to return the buses to the state of Texas, Buslease sued for the amount owed, $7,000 in costs incidental to recovering the buses, and attorney’s fees.

In their first two points of error, BLS and Altman challenge the default judgment on jurisdictional grounds, asserting that due process was violated because the necessary minimum contacts were not established by the pleadings or evidence and that the contractual requirement of payment in Texas was insufficient to establish minimum contacts necessary for the exercise of longarm jurisdiction. In reviewing the authorities cited by appellants, we conclude that they have confused the requirements of the longarm statute, TEX.REV. CIV.STAT.ANN. art. 2031b (Vernon 1964 and Vernon Supp.1984), see Whitney v. L & L Realty Corp., 500 S.W.2d 94 (Tex.1973), and McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965), with the “minimum contacts” test of due process applicable to a special appearance under TEX.R.CIV.P. 120a, see O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966); U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978); TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427 (Tex.Civ.App.—Dallas 1981, writ ref d n.r.e.); and Gathers v. Wallace, Co., 544 S.W.2d 169 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.). In Whitney the court tested the pleadings only in terms of the requirements of article 2031b to determine if the defendant had a responsibility to answer under that statute:

We have no problem here as to the responsibility to answer, or “amenability to process.” The allegations are sufficient, under Section 6 of Art. 2031b, to require the defendants to answer if they have in fact been served in accordance with the requirements of that statute. Id. at 96. (Emphasis added).

Whitney, 500 S.W.2d at 96 (Emphasis added).

As in McKanna and Whitney, also default judgment cases appealed by writ of error, the issue before us is whether Buslease made sufficient allegations to confer jurisdiction under article 2031b. McKanna, 388 S.W.2d at 930. Here, appellants do not contend that Buslease’s pleadings fail to comply with the requirements of article 2031b, and, in fact, we hold that the allegations are sufficient under sections 3 and 4 of that article to give the court jurisdiction over the appellants. Thus, they had a responsibility to answer if they have been served in accordance with the statute. Id. We do not reach the minimum contacts issue because appellant filed no rule 120a special appearance to contest amenability to process under the “minimum contacts” rule. U-Anchor, 553 S.W.2d at 764; Blumenthal v. Ameritex Computer Corp., 646 S.W.2d 283 (Tex.App.—allas 1983, no writ); see Thode, Special Appearance, 42 TEX.L.REV. 279, 319 (1964).

In Blumenthal we held that when the nonresident defendant has made no special appearance as allowed by rule 120a, but seeks review of a default judgment by writ of error, a petition alleging the facts required by article 2031b for lon-garm jurisdiction is sufficient without alleging the three elements necessary to satisfy the “minimum contacts” test. We have found no case holding that a defendant may invoke the “minimum contacts” test without complying with rule 120a. Consequently, we adhere to our holding in Blumenthal, and, in the absence of any contention that the facts alleged here do not meet the requirements of article 2031b, we hold that longarm jurisdiction has been established for the purpose of this case.

In point of error three, BLS and Altman assert error in the court’s assuming jurisdiction under article 2031b because there was no showing that the Secretary of State affirmatively mailed the citations to them by regular mail through the United States Postal Service. They cite no authority to support this position; appellants merely “suggest” that this would be a simple and fair insurance of their receipt of the citations in this case. Their argument is without merit. As evidenced by the certificates of the Secretary of State, the Secretary forwarded process by certified mail, return receipt requested, to both BLS and Altman. Although the citations were returned to the Secretary bearing the notation “refused,” appellants were served in accordance with the requirements of article 2031b. Whitney, 500 S.W.2d at 95-96. TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 707 (Tex.Civ.App.—Fort Worth 1982, no writ). Point of error three is overruled.

BLS and Altman next maintain that the trial court erred in rendering a default judgment because the evidence of damages at the trial was wholly inadequate and insufficient to sustain the judgment. They complain of Buslease’s failure to attach to the petition or offer in evidence a summary of charges or other evidence from which the trial court could accurately determine damages to support the claim of $2,460.40 and the additional damages of $7,000.00. They argue that their default did not admit Buslease’s allegations of damages because the claim was not proved by an instrument in writing within the contemplation of TEX. R.CIV.P. 241; consequently, they assert that the trial court was obligated to hear evidence on the damages issue. TEX.R. CIV.P. 243; Looney v. Kribbs, 588 S.W.2d 678 (Tex.Civ.App.—Tyler 1979, no writ).

We agree that under TEX.R. CIV.P. 241 and 243, damages may not be assessed in default proceedings without presenting evidence unless the claim is liquidated, that is, unless with sufficient certainty the amount due can be calculated by the court solely from documents and the factual, as opposed to conclusory, allegations in the petition. Burrows v. Bowden, 564 S.W.2d 474 (Tex.Civ.App.—Corpus Christi 1978, no writ). In the hearing on damages here, the court determined that the damages were proved. The equipment lease agreements were attached as Exhibit A to Buslease’s first amended original petition. One provided for $59.67 times the number of days comprising the interim term and $1,790.00 per month during the basic term; the other provided for $60.00 times the number of days comprising the interim terms and $1,800.00 per month during the basic term. The amended petition further stated that:

As a result of the above-described breaches and defaults [failing to return the buses to Texas], BusLease was forced to incur certain expenses for which it seeks recovery herein, including the costs of (a) transporting a representative of BusLease to California in connection with the breaches and defaults, (b) transporting drivers to California to take possession of the buses, (c) transporting the buses out of California, and (d) securing a new lessee for the buses, all of which incidental costs total not less than $7,000.00, for which BusLease seeks recovery herein.

John Lawrence, an officer of Buslease, testified that he was familiar with the leases, that they were in default, that the amount of rental due under leases was $2,460.40, and that the additional “damages were $7,000.” Consequently, we hold that considering the factual allegations of the petition deemed admitted, the leases attached to the petition, combined with Lawrence s testimony, the evidence is sufficient to support the amount awarded.

Finally, in their fifth point of error, appellants urge error by the trial court in rendering the default judgment against either BLS or Altman because Buslease attempted to rely on two separate contracts which have material differences and there is no way to tell which one appellee relied upon other than to assume that it relied upon both in an unfair effort to involve Altman, individually. Appellants cite no authority to support their position and thus, this point presents nothing for review. Arrechea v. Arrechea, 609 S.W.2d 852, 855 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref'd n.r.e.). However, in its first amended petition, Buslease clearly alleges that it is suing BLS on its lease and that Altman is being sued individually as a guarantor of performance by BLS. Again, these allegations are deemed admitted for the purpose of establishing the liability of both BLS and Altman since neither filed an answer. Justice Life Insurance Co. v. Walker, 508 S.W.2d at 437.

Affirmed.

GUILLOT, Justice,

dissenting.

I respectfully dissent because I agree with BLS and Altman, defendants below, that the trial court erred in assuming in personam jurisdiction over them because the necessary purposeful acts of them in this state were not established, and thus they were not afforded due process.

The majority has discussed the test that the Texas Supreme Court has established to support a default judgment when substituted service under the long-arm statute is utilized. First, the pleading must allege facts, which, if true, would make the defendant “amenable to process.” Whitney v. L & L Realty Corp., 500 S.W.2d 94, 95 (Tex.1973). Second, there must be proof in the record that the defendant was served in the manner required by the statute. Verges v. Lomas & Nettleton Financial Corp., 642 S.W.2d 820, 821 (Tex.App.—Dallas 1982, no writ). Appellants contend in their writ that neither prong of this test has been met. Because I find that appellants were not amenable to process, I do not address the second prong of the test as to whether appellants were properly served.

The first prong of the test for upholding a default judgment entered pursuant to substituted service under the long-arm statute concerns section 4 of article 2031b. This section reaches only “as far as the limits of the federal constitutional requirements of due process will permit.” U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977), cert. denied, 434 U.S. 1063 (1978). I think that the proper test under this first prong should be whether plaintiff’s petition alleges such purposeful acts of the defendant such that the defendant comes within the constitutional reach of this state’s jurisdiction. See Gathers v. Walpace Co., 544 S.W.2d 169 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.). The requirements that a plaintiff must meet in order to show jurisdiction over an out of state defendant when the defendant enters a special appearance pursuant to TEX.R. CIV.P. 120a were established by the Texas Supreme Court in O’Brien v. Lanpar Company, 399 S.W.2d 340, 342 (Tex.1966). The three elements that must exist are: (1) the nonresident defendant or corporation must purposefully do some act or consummate some transaction in this state; (2) the cause of action must arise from, or be connected with, such transaction; and (3) the assumption of jurisdiction by this state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in this state, the relative convenience of the parties, the benefits and protection of the laws of this state afforded to the respective parties, and the basic equities of the situation. U-Anchor, 553 S.W.2d at 762. I would hold that these same requirements should apply when deciding whether a petition is sufficient to show jurisdiction to support a default judgment. There should not be any difference between “amenability to process” for purposes of supporting a default judgment and “amenability to process” when a special appearance under TEX.R.CIV.P. 120a is made. In both instances, jurisdiction must first attach. A plaintiff must first show the minimum contacts before the defendant has any responsibility to answer. See Gathers.

In order to establish if the requirements have been met, I would look to the pleadings of Buslease to determine if the jurisdictional allegations that they contain are sufficient. Cf. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). Buslease alleges in its petition that appellants have done business in the state of Texas by virtue of the lease agreements that they entered into with Buslease. The lease agreements are attached to its petition. The agreements are performable in part in Texas. On appeal, Buslease relies on this allegation, contending that the facts contained in its pleadings are sufficient under section 4 of article 2031b to confer jurisdiction of a Texas court upon appellants. In applying the three prong test of O’Brien, I find that Buslease has not made the slightest attempt to allege any purposeful acts in Texas on the part of appellants other than the sending of lease payments to Texas. This is not sufficient. See U-Anchor, 553 S.W.2d at 763. Buslease has not alleged any other purposeful acts that would establish jurisdiction over BLS and Altman. I would hold that the allegations in Bus-lease’s petition are not sufficient to establish jurisdiction since not enough purposeful acts have been alleged.

To the extent Blumenthal v. Ameritex Computer Corp., 646 S.W.2d 283 (Tex.App.—Dallas 1983, no writ), differs from my view in this case, I would overrule Blu-menthal. It offends my traditional notions of fair play and substantial justice to allow a party to only plead a general allegation that a contract was to be performed in this state, without stating sufficient purposeful acts conducted pursuant to the contract, and thus acquire jurisdiction over an out-of-state defendant. Clearly some purposeful acts of the out-of-state defendant must be alleged. See TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427, 431 (Tex.Civ.App.—Dallas 1981), writ refd n.r.e. per curiam, 639 S.W.2d 450 (Tex.1982); Gathers v. Walpace Co., 544 S.W.2d 169 (Tex.Civ.App.—Beaumont 1976, writ refd n.r.e.).

Considering the basic equities and circumstances of the case, I would hold that BLS and Altman would not be accorded due process of law if required to defend the suit of Buslease in Texas under these pleadings. Inasmuch as BLS and Altman have entered general appearances by pursuing this appeal, I would remand for a trial on the merits. Cf. McKanna, 388 S.W.2d at 930.

I would reverse the judgment and remand to the trial court for a new trial.


author: BROOKSHIRE, Justice.

text:
    Ray Donald SESSION, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-170-CR.
    Court of Appeals of Texas, Beaumont.
    Sept. 26, 1984.

      Tom Brown, Livingston, for appellant.
    James Keeshan, Dist. Atty., Conroe, for appellee.
   OPINION

BROOKSHIRE, Justice.

The Appellant pleaded not guilty to the offense of Attempted Capital Murder of peace officer Cleburne Swilley. The jury found him guilty as charged in the indictment. The court assessed punishment at fifteen years and one day and affirmatively found that the Appellant used a deadly weapon, a firearm, in the commission of the offense.

This appeal is based on a single ground of error. Appellant contends that his motion for instructed verdict should have been granted because the evidence was legally insufficient to establish that he had the required intent to commit the offense of murder.

Gary Lee Pinson, a witness for the State, testified that he knew the Appellant. Pin-son stated that he, the Appellant, and Hillary Brown rode in a pickup truck together on the evening of May 2, 1982. The Appellant was the driver, Pinson sat in the middle and Brown was on his right. The three decided to drive toward Houston from Livingston. About 11:00 or 12:00 p.m., they traveled north on the East Texas Highway toward Polk County. Pinson testified that they had not been drinking but they had been smoking marihuana. Appellant drove the truck to the front of a tire store located in Livingston at about 1:00 a.m. on May 3rd. Pinson further testified:

“A When we got to the tire store, Ray got out and shot the window out. Shot inside the store about four or five times.
“Q Do you know what kind of gun he was using, if he was using a gun?
“A I think it was a — it was a hand gun, a .38 or something like a .38.
“Q A pistol?
“A Pistol.
⅝ * * $ * *
“Q Did you know if there were any other firearms in the truck at the time besides the pistol?
“A Yeah, I had noticed. I had noticed.
“Q Was there another firearm besides the pistol?
“A Yeah, there was another firearm, a shotgun.
“Q Do you know what kind of shotgun it was, what size or anything?
“A It was a shotgun, I don’t know what kind it was.”

Bob Price, a reserve police officer with the Livingston Police Department, was on duty as the inn keeper of a Holiday Inn across the street from the tire store. He heard the gunshots and ran outside to see what was happening. He saw the pickup truck and three people in front of the tire store. The driver left the store and drove past him. Price testified that the lighting was good enough to see all three men. Price described the driver as a large black man. Price was able to identify the Appellant in an in-court identification. He also gave testimony that the Appellant was definitely the driver of the vehicle as it left the tire store. Price notified the police of the shooting after the pickup truck sped away.

Deputy Sheriff Cleburne Swilley received a description of the vehicle and began a search for the truck. Swilley spotted Appellant’s truck at a service station in Corri-gan. He followed the truck for several blocks after it left the service station. Swilley switched on his revolving lights, aircraft landing lights and siren. The truck pulled over to the side of the road.

Gary Pinson testified that he was aware a police car had stopped them. Swilley, with the use of his public address system, told the occupants of the truck to “put your hands on your head.” The two passengers complied but the driver did not. The command was repeated. Suddenly, the truck started off at a high speed.

Pinson testified:

“Q Okay, now what did you do when you heard — what happened when he told you to get out of the car and put your hands up?
“A Ray was driving at that time. He just took off. I — we was fixing to get ready to get out. I know I was and that boy next to me was, but he just took off.”

The truck sped down the freeway and a chase ensued. At one point in the chase the speed of the truck was said to be in excess of 100 miles per hour. The truck slowed down as it approached the Neches River. Swilley came within 100 to 150 feet of the Appellant’s truck. As the vehicles slowed down to 25 or 30 miles an hour, Swilley notified his dispatcher by radio that the truck was stopping. When Swilley drew closer to the truck, he saw the Appellant raise a shotgun out of the window on the driver’s side of the truck. When Swil-ley saw the shotgun, he immediately applied his brakes. The gun was pointed and fired in the direction of the patrol car driven by Swilley. The shot went slightly high and to the right of the patrol car.

Pinson further testified:

“Q You said he was chasing you — were you going pretty fast?
“A Yeah, we were going fast, real fast.
“Q Okay, during any of this time, while he was chasing you, did anybody in the truck there, use any of the guns that you said were in the truck, either the shotgun or the pistol?
“A While we was driving down the Freeway, he shot at him. He shot at him with his 'pistol. Then he shot at him with the shotgun.
“Q By ‘he’, who are you talking about?
“A Ray.
“Q Was he still driving?
“A Yeah, still driving, at that time.
“Q How did he shoot at him?
“A Like I am driving now, for instance, he turned back, you know, he was just shooting at him like this here (indicating).
“Q Okay, now just out the window?
“A Out the window.
“Q Did either you or Mr. Brown pick up a gun and start shooting at him also?
“A No, sir, I was down in the middle, I didn’t know what to do. I was down in the middle, that’s where I was. I was on the floor of the truck and he had got down.” (Emphasis added.)

Swilley testified that after the first shot was fired the driver immediately increased the truck’s speed and continued north on Highway 59. Two shots were fired within Polk County. Swilley said the Appellant was apparently driving with his left hand and shooting the gun with his right hand. The fleeing suspects were stopped at a roadblock. Appellant was finally apprehended after a shootout with law enforcement officers in South Lufkin.

Testimony concerning the shootout and the roadblock in Lufkin was given by Patrolman Dennis Jones of the Lufkin Police Department. A Browning automatic 16-gauge shotgun and a .38 caliber pistol were recovered.

Simon David Hayes, a patrol officer with the City of Lufkin, secured evidence at the scene of the Lufkin roadblock. Hayes testified that Jones handed him a Browning 16-gauge shotgun and Swilley handed him a .38 caliber pistol.

The Appellant correctly concedes that under the prior Penal Code in a trial for assault with intent to murder, the predecessor of the present statute, that intent to kill could be inferred from the use of a per se deadly weapon in a deadly manner. Thompson v. State, 521 S.W.2d 621 (Tex.Crim.App.1974); Burks v. State, 145 Tex. Cr.R. 15, 165 S.W.2d 460 (Tex.Crim.App.1942).

There is no longer such a presumption of specific intent when a per se deadly weapon is used by a defendant. Harrell v. State, 659 S.W.2d 825 (Tex.Crim.App.1983); Gutierrez v. State, 672 S.W.2d 633 (Tex.App.—Corpus Christi 1984, no writ).

But intent, even a specific intent, may be inferred from the conduct, acts, and words of the accused. Dues v. State, 634 S.W.2d 304 (Tex.Crim.App.1982); Beltran v. State, 593 S.W.2d 688 (Tex.Crim.App.1980).

Indeed, the trier of the facts may infer a specific intent to kill from any facts in evidence which in its mind proves the existence of such prerequisite intent. See Palafox v. State, 484 S.W.2d 739 (Tex.Crim.App.1972).

There is evidence in the record on the prerequisite intent which was correctly before the jury. Evidence that during the chase the truck approached speeds of 100 miles an hour, then suddenly slowed to about 30 miles an hour, was proper for the jury to weigh. Evidence that when Swilley closed the distance between the two vehicles to within approximately 30 paces a shotgun was fired at him was proper for the jury’s evaluation. Evidence of Swil-ley’s quick reflex action thwarting any serious bodily injury or death was also proper to be considered by the trier of facts.

The basic thrust of TEX. PENAL CODE ANN sec. 15.01 (Vernon Supp. 1984), entitled Criminal Attempt, is that the offender does an act which amounts to more than mere preparation that tends to but fails to effect the commission of the offense.

Placing the shotgun outside the cab of the truck and firing the shotgun amounts to more than “mere preparation”. The attempt failed. However, failure is not a defense nor does it negate the specific intent to commit the offense charged under this indictment.

Although not cited in the briefs, the State vigorously argued on oral submission date a triad of cases highly persuasive, if not controlling, under this record. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Crim.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Crim.App.1983).

We believe that the specific intent necessary in this case was based on direct and circumstantial evidence. Assiduously following Carlsen, Freeman, and Denby, supra, we agree that a verdict based on circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. Each and every fact need not necessarily point directly and independently to the guilt or specific intent of the accused, if the cumulative effect of all the surrounding, incriminating facts and circumstances when taken together are sufficient to support the verdict. Conced-edly, proof, evidence and circumstances which amount only to a strong suspicion or a mere probability are inadequate. In ascertaining the guilt of the accused, including the specific intent to commit capital murder, we review the entirety of the record. We presume no fact or circumstance that was not shown to have been committed and intended by him.. On appeal, a verdict of guilty will not be affirmed if the evidence and record does not sufficiently establish all the material elements of the offense charged.

The controlling and paramount inquiry on appeal in testing the sufficiency and adequacy of the evidence to support a criminal conviction must include the determination that the jury was properly instructed. The appellate inquiry must determine whether the evidence reasonably supports a finding of guilt beyond a reasonable doubt. Carlsen, Freeman, and Denby, supra. The inquiry does not require the reviewing court to determine whether the evidence at the trial established the elements of the offense as well as the guilt of the accused beyond a reasonable doubt. The relevant question is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Johnson v. Louisiana, 406 U.S. 356, 362, 92 S.Ct. 1620, 1624, 32 L.Ed.2d 152, 159 (1972). Under this appellate standard, the trier of fact must be given full play in its responsibility to fairly resolve conflicts in the testimony, conscientiously weigh the evidence and reach reasonable inferences from certain basic and evidentiary facts to arrive at the ultimate facts.

Appellant’s one ground of error is disallowed. We affirm the verdict, the sentence, and the judgment below.

Affirmed.