author: BENAVIDES, Justice.

text:
    Tony Paul SINAST, Appellant, v. The STATE of Texas, Appellee.
    No. 13-84-292-CR.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 24, 1985.
    John H. Miller, Jr., Sinton, for appellant.
    Dale Paul Summa, Sinton, for appellee.
    Before NYE, C.J., and BENAVIDES and SEERDEN, JJ.
   OPINION

BENAVIDES, Justice.

Appellant was charged by information with the offense of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor. The jury convicted appellant of driving while intoxicated, and the court then assessed a sentence of 30 days’ confinement in the San Patricio County Jail and a fine of $500.00. We reverse and acquit.

A car was found in a muddy ditch at the end of four hundred eighty-nine feet of skid marks on the pavement. Deputy Nati-vidad Carranza of the San Patricio County Sheriff’s Office arrived in response to a call from a dispatcher, and upon finding appellant at the scene and after subsequent conversation with appellant, Deputy Carranza informed appellant that he would have to stay until the highway patrol arrived to investigate the accident.

When Trooper Oscar Rivera of the Department of Public Safety arrived at the accident scene, he formulated an opinion that appellant was intoxicated and transported him to the Sinton jail. Trooper Rivera related to the jury that appellant was unable to recite the alphabet past the letter “s,” refused to participate in any further sobriety tests and refused to take a breath test.

In his first ground of error, appellant alleges the evidence is insufficient to support a finding that he was intoxicated while operating a vehicle. “To sustain a conviction for driving while intoxicated, the evidence must show that the appellant drove the vehicle, that he drove while he was intoxicated, and that he drove on a public road or highway or a street or alley.” Johnson v. State, 517 S.W.2d 536, 538 (Tex.Crim.App.1975).

Deputy Carranza testified that when he arrived, appellant’s car was in the ditch, and appellant was walking toward it, but stated that he did not know how long it had been from the time of the accident until the time he arrived at the scene. Trooper Rivera testified that he did not know how long it was before anybody notified any police officer about the accident. Officer Ray Ramon of the D.P.S. also stated that he had no idea how long it had been between the time the accident occurred and when he and Trooper Rivera arrived. There was no evidence at trial concerning when the dispatcher, who sent the deputy, was informed of the accident.

In its brief, the State argues that appellant was at the scene of a single car accident, and that appellant was the only person at the scene. This evidence may indicate that it was appellant who drove the vehicle, but the question is whether appellant drove while he was intoxicated.

In the instant case there was no evidence that the engine of the vehicle was still hot, see Johnson v. State, 517 S.W.2d at 538, or that the car was still smoking, see Green v. State, 640 S.W.2d 645, 648 (Tex.App.— Houston [14th Dist.] 1982, no pet). Absent any evidence in the record fixing the time of the accident, the evidence is insufficient to show that appellant drove at the time he was intoxicated. Johnson v. State, 517 S.W.2d at 538.

Appellant’s first ground of error is sustained.

In his second, third, and fourth grounds of error, appellant complains that under the Federal Constitution, the Texas Constitution and TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon 1979 & Vernon Supp. 1984), the trial court erred in admitting evidence of statements he made.

At trial, Deputy Carranza and Trooper Rivera were both allowed to testify that appellant told each of them the accident occurred when appellant lost control of the vehicle while attempting to change the tape in a tape player.

Appellant now argues that he was under arrest before those statements were made, and that the statements were the result of custodial interrogation. He alleges the officers’ testimony should not have been admitted because appellant was not informed of his Miranda rights.

In resolving these grounds of error, we observe that the gist of appellant’s statement to each officer was the same; however, the circumstances surrounding the statements differ.

Appellant testified outside the presence of the jury that he had been picked up on the side of the road by an individual who gave him a ride into Sinton. Appellant was attempting to telephone someone to help him pull his car out when the City of Sinton Police ordered him to hang up the phone and get into their car. Appellant stated that these city officers returned him to the scene of the accident where three or four deputies, perhaps as many as five, had arrived. Appellant was left at the scene with Deputy Carranza.

Deputy Carranza testified on voir dire that appellant was not under arrest, but then stated that he told appellant he had to stay at the scene until the highway patrol arrived. He stated he was holding appellant there for the highway patrol. Deputy Carranza also stated that the investigation was going to focus on appellant, that it was his intent to keep appellant in custody until the highway patrol arrived for the purpose of investigation, and that there was probable cause to arrest appellant for a D.W.I.

In light of the above testimony, the State’s position that appellant was not under arrest when the statements were made to the D.P.S. officers is untenable. By any test, appellant must be considered to have been in custody when Deputy Carranza “secured the scene” by detaining appellant. See Ruth v. State, 645 S.W.2d 432, 435 (Tex.Crim.App.1979).

However, both D.P.S. officers testified that appellant approached them as they got out of their car and greeted them with the statement appellant now complains of. A voluntary statement, not in response to any inquiry by the D.P.S. officers, and not the product of interrogation, is admissible even though made after arrest but before Miranda rights are explained. Earnhart v. State, 582 S.W.2d 444, 448 (Tex.Crim.App.1979). The record shows that the statements of appellant were voluntary, not a product of interrogation and not made in response to a inquiry by the D.P.S. officers. Accordingly, the statements were admissible. Sanchez v. State, 589 S.W.2d 422, 423 (Tex.Crim.App. 1979).

Deputy Carranza was also allowed to testify that appellant told him the accident occurred as he was changing tapes. Deputy Carranza candidly admitted that appellant’s statement was in response to his question. However, we need not decide whether Carranza’s question was investigation or interrogation, for even if the court erred in admitting Carranza’s testimony, the testimony of the D.P.S. officers was admissible. In Lovel v. State, 538 S.W.2d 630, 632 (Tex.Crim.App.1976), the court wrote, “It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by other proper testimony.” We therefore overrule appellant’s second, third and fourth grounds of error.

In his fifth ground of error, appellant alleges the trial court erred in admitting the oral statements because those statements were not “res gestae” of the offense. An admission by an accused to a third party is not hearsay and is clearly admissible, Russell v. State, 598 S.W.2d 238, 254 (Tex.Crim.App.), cert. denied, 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980), thus the only prohibition against admitting appellant’s statements was the confession statute. See Garner v. State, 464 S.W.2d 111 (Tex.Crim.App.1971). In that we have held that art. 38.22 is not applicable to appellant’s volunteered statement, the court did not err in admitting same. Appellant’s fifth ground of error is overruled.

In his sixth ground of error, appellant alleges that the trial court erred in admitting evidence that appellant refused to submit to a breath test.

Until 1977, there was an unbroken line of authority mandating that evidence of appellant’s refusal to submit to a breath test was inadmissible. Dudley v. State, 548 S.W.2d 706, 707 (Tex.Crim.App.1977); Clinard v. State, 548 S.W.2d 716, 717 (Tex. Crim.App.1977); Martinez v. State, 548 S.W.2d 719 (Tex.Crim.App.1977); Sutton v. State, 548 S.W.2d 720 (Tex.Crim.App.1977).

The law in effect at the time of the instant offense was identical to that in effect when the Court of Criminal Appeals wrote Dudley, and appears in the 1977 bound volume of TEX.REV.CIV.STAT. ANN. art. 67011 -5. The information in the instant offense alleges that the criminal conduct occurred on or about September 23,1983. Trial commenced on July 5,1984. In the interim, art. 6701Z-5 was amended. The amendments were effective January 1, 1984. Act of June 16, 1983, ch. 303, § 29, 1983 Tex.Gen.Laws 1568, 1607.

In its brief, the State argues that the refusal provision of the 1983 amendments was not a change in substantive law, rather it was only a change in procedure and evidence, and, therefore, appellant’s refusal to submit to the test was admissible. The act, however, specifically states that an offense committed before the effective date of the act is covered by the law in effect when the offense was committed and the former law is continued in effect for that purpose. Act of June 16, 1983, ch. 303, § 28(c), 1983 Tex.Gen.Laws 1568, 1607. We conclude that the law is that which is set out in Dudley; therefore, the court erred in admitting evidence of appellant’s refusal to submit to a breath test. See Nevarez v. State, 671 S.W.2d 90 (Tex.App. —El Paso 1984, no pet.).

We are aware that other courts of appeals (relying on South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983)) (dissenting opinion 459 U.S. at 566-71, 103 S.Ct. at 924-927) have held to the contrary, see Parks v. State, 666 S.W.2d 597 (Tex.App. — Houston [1st Dist.] 1983, no pet.); Ashford v. State, 658 S.W.2d 216 (Tex.App. — Texarkana 1983, no pet.), but we are of the opinion that Dudley was decided on statutory as well as Texas constitutional grounds, and until the Court of Criminal Appeals sees fit to narrow the scope of the protection afforded citizens of the State, we are unwilling to do so.

The United States Constitution provides a minimum level of protection, not a maximum. Although federal decisions may expand the rights a State must afford to an accused, we do not believe that federal decisions should be relied upon by intermediate state appellate courts to restrict independent and non-incompatible rights given to Texas citizens by their own Texas Constitution and state laws. See Neville, 459 U.S. at 566-71, 103 S.Ct. at 924-27 (dissenting opinion). Appellant’s sixth ground of error is sustained.

The judgment of the trial court is reversed, and an order of acquittal is entered.


source: Caselaw Access Project

author: SEERDEN, Justice.

license: Public Domain

text:
    Ada P.C. JACOBSEN, Relator, v. The Honorable Rene HAAS, Respondent.
    No. 13-84-447-CV.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 24, 1985.
    Order Feb. 25, 1985.

      Pamela E. George, Piro & Lilly, P.C., Houston, for relator.
    Scott T. Cook, Corpus Christi, for respondent.
    Before NYE, C.J., and SEERDEN and BENAVIDES, JJ.
   OPINION

SEERDEN, Justice.

This is an original mandamus proceeding brought by relator Ada Jacobsen, requesting a writ of mandamus directing the Honorable Rene Haas to grant a writ of habeas corpus returning the minor children, Jane and Jacqueline, to relator, the managing conservator. The real party in interest is Jacob Jacobsen, relator’s ex-husband and possessory conservator of the minor children. The relator and her former husband were divorced on April 4, 1983 in Nueces County, Texas. The couple separated in July of 1982, and the minor children had resided with Jacob Jacobsen in Nueces County, Texas from that date until the incidents which precipitated these proceedings. The decree of divorce, by agreement, named relator the managing conservator of the children. However, by oral agreement, the minor children remained living with Jacob Jacobsen, who was named possesso-ry conservator by the divorce decree. In July of 1984, the managing conservator reacquired possession of the children and, subsequently, took them to her home in Toronto, Canada. In October of 1984, Jacob Jacobsen regained possession of the children and returned them to Corpus Christi, Texas. Unable to secure return of her children, on November 4, 1984, relator filed an application for writ of habeas corpus to compel return of the children to her pursuant to TEX.FAM.CODE ANN. § 14.-10 (Vernon Supp. 1984). After hearing, respondent denied relator’s application for writ of habeas corpus, and the action now pending before this Court ensued.

Under § 14.10(a), a court is required to grant a writ of habeas corpus if it finds that the relator is entitled to possession of a child by virtue of a court order. Forbes v. Wettman, 598 S.W.2d 231 (Tex. 1980). The issues of best interest of the child and right of possession should not be relitigated in the habeas corpus proceeding. Schoenfeld v. Onion, 647 S.W.2d 954 (Tex. 1983); McElreath v. State, 545 S.W.2d 955 (Tex.1977). The right of relator to possession of a child by virtue of a court order is enforceable by a mandamus. Forbes v. Wettman, 598 S.W.2d at 232; Almarez v. Williams, 673 S.W.2d 923, 926 (Tex.App.— San Antonio 1984, no writ).

In Strobel v. Thurman, 565 S.W.2d 238 (Tex.1978), the Court said that, under § 14.10, the writ should be granted “upon proof of the bare legal right to possession,” but the Court continued as follows:

“There are some exceptions to this use of the remedy. A writ may be denied if the prior order was ‘granted by a court that lacked jurisdiction’ § 14.10(b)(1), ‘if the child has not been in the relator’s possession for at least six months’ § 14.10(b)(2), ‘if there is a serious immediate question concerning the welfare of the child’ § 14.10(c), or ‘if the right to possession of a child is not governed by a court order’ § 14.10(e).”

A review of the evidence and testimony adduced at the habeas corpus hearing shows that there is no question but that relator was named managing conservator of the minor children and granted all the appropriate and customary rights of a managing conservator, that the court appointing such managing conservator had jurisdiction and that such court order had not been changed or modified. Jacob Jacobsen made no claim that there was a serious, immediate question concerning the children’s welfare. The claim is made, however, that the children had not been in relator’s possession and control for at least six months immediately preceding the filing of the petition for the writ. Section 14.10(b)(2).

In their briefs and during oral argument, the parties have made conflicting interpretations of Section 14.10(b)(2). It is Jacob Jacobsen’s position that the provision is to be read to mean that the relator must be in continuous possession of the children for at least six months prior to the filing of the application for writ of habeas corpus. It is relator’s position that this section means that the children must have been out of the relator’s possession for a period of at least six months immediately prior to the filing of the application for writ of habeas corpus. We hold that the correct interpretation of the statute is that the children must have been out of the relator’s possession continuously for more than six months immediately prior to the filing of the application for writ of habeas corpus. A review of the facts in this case indicates that the children were in the relator’s possession a matter of weeks before the héaring on the application for writ of habeas corpus and that they had not been out of her possession for the entire period of six consecutive months prior to the hearing.

To give this particular exception to § 14.10 the interpretation advocated by Jacob Jacobsen, we believe, would only encourage acts of kidnapping to avoid the obvious intent and effect of § 14.10(a). It is our interpretation of the statute that Section (b)(2) of 14.10 is not applicable unless it can be shown that the relator did not have possession and control of the minor children during any time during the six months immediately prior to the filing of the application for writ of habeas corpus. See Hui-Mei Wise v. Yates, 639 S.W.2d 460 (Tex.1982); Henderson v. Shackelford, 671 S.W.2d 687 (Tex.App. — Amarillo 1984, no writ); Allen v. Allen, 647 S.W.2d 356 (Tex. App. — El Paso 1982, no writ).

Under our holding, relator is entitled to issuance of a writ of habeas corpus as a matter of right. The issuance of the writ should be automatic, immediate and ministerial. Armstrong v. Reiter, 628 S.W.2d 439 (Tex.1982). The court with continuing jurisdiction must grant the writ of habeas corpus for delivery of possession of a child to the person with the superior right of possession without any delay for separate or simultaneous considerations of a pending motion for modification of the pri- or court order unless an exception under Section 14.10 is shown to exist. Greene v. Schuble, 654 S.W.2d 436 (Tex.1983). In light of what is said above, we hold that no exception has been shown in this case.

Our opinion herein does not reflect consideration of the merits of the other proceedings pending in the court below. Habeas corpus proceedings in child custody cases are governed exclusively by Section 14.10, the provisions of which are mandatory. The application of habeas corpus in child custody cases is limited to restoring possession of the children to the person legally entitled to present possession and should not be combined in this cause with the temporary custody question or in any way be used to relitigate custody. Whatley v. Bacon, 649 S.W.2d 297 (Tex.1983).

It is assumed that Judge Haas will vacate her order denying relator’s application for writ of habeas corpus and that she will grant the requested writ. A writ of mandamus will issue only if she declines to do so.

ORDER

This matter is now before this Court on relator’s motion for rehearing and motion for immediate relief. In conjunction with these motions, the parties have filed a complete transcript to date of cause number 83-431-C styled Ada P.C. Jacobsen v. Jacob H. Jacobsen, now pending before the 94th District Court of Nueces County. The parties have also filed statements of facts for hearings held November 5, 1984, January 29, 1985, and January 30, 1985 in this cause.

We have carefully listened to the oral arguments of counsel and have reviewed all authorities and the entire records filed in connection with these motions. We find that the court’s order entered and dated January 30, 1985, ordering the children be delivered to relator complies with this Court’s order and opinion of January 24, 1985. This completed the proceedings related to the mandamus filed in this Court.

It has come to the attention of this Court that after making the ruling and entering the order described above, the trial court heard other matters relating to a motion for temporary orders and entered additional orders. The actions of the trial court taken subsequent to the order granting the writ of habeas corpus are not before us.

Relator’s motion for rehearing and motion for immediate relief is DENIED.

      . All statutory references are to TEX.FAM. CODE ANN. (Vernon Supp.1984) unless otherwise indicated.


author: CORNELIUS, Chief Justice.

text:
    Archie WADE, et ux., Appellants, v. Joe SEEBURG, AKA Joe Seelbach, et al., Appellees.
    No. 9317.
    Court of Appeals of Texas, Texarkana.
    Feb. 6, 1985.
    Rehearing Denied March 5, 1985.
    Mike Smith, Erskine, Smith & McMahon, Gilmer, for appellants.
    Joe P. Taylor, Longview, for appellees.
   CORNELIUS, Chief Justice.

Archie and Margie Wade appeal from a judgment awarding Joe Seeburg a portion of the proceeds of a fire insurance policy covering property they purchased from Seeburg. Although Seeburg was not named in the fire policy, the court awarded him a portion of the proceeds on the ground that the Wades had contracted with him to keep the property insured for his benefit. The Wades contend it was improper for the judgment to award Seeburg the proceeds directly, the pleadings are insufficient, and the judgment unjustly enriched Seeburg. We will affirm the judgment.

The Wades purchased a mobile home and lot from Seeburg in April of 1982. They paid $5,000.00 down and signed a vendor’s lien note for $25,000.00 payable in monthly installments of $500.00. The mobile home burned on January 28, 1983. The Wades had purchased a fire insurance policy in which Archie Wade was the named insured. The policy listed Seeburg as a lienholder, but he was not named in the policy’s loss payable clause. The insurer paid the proceeds of the policy into the registry of the court. At the time of the fire the Wades had missed one monthly payment, and they made no payments after the fire. At the time of the trial, the amount of the insurance proceeds was $11,625.00 ($750.00 having been deducted as the attorney’s fee for the insurance company’s attorneys).

Trial was to the court without a jury. No findings of fact or conclusions of law were requested or filed. The judgment awarded Seeburg $8,000.00 of the insurance proceeds directly, and awarded him a lien on the remainder of the proceeds ($3,625.00).

Even though not listed as an insured in a fire insurance policy, a vendor-mortgagee may recover the proceeds of such a policy where the vendee-mortgagor has agreed to insure the property for the benefit of the vendor-mortgagee. Farmers Ins. Exchange v. Nelson, 479 S.W.2d 717 (Tex.Civ.App. — Waco 1972, writ ref’d n.r.e.); Abilene White Truck Co. v. Petrey, 384 S.W.2d 211 (Tex.Civ.App. — Fort Worth 1964, writ ref d n.r.e.); Fidelity & Guar. Ins. Corp. v. Super-Cold Southwest Co., 225 S.W.2d 924 (Tex.Civ.App. — Amarillo 1949, writ ref’d n.r.e.). The right to the proceeds may be enforced by suit directly against the insurer.

The Wades executed a deed of trust which expressly provided that they would keep the mortgaged property insured for Seeburg’s protection against loss by fire. Thus, the court correctly awarded Seeburg judgment for the amount of his debt.

We find the pleadings sufficient to support the judgment. Seeburg alleged the facts giving rise to his equitable claim to the proceeds and prayed for recovery of them as well as for foreclosure of his lien. The pleading supports the judgment as it demands, in part, the relief obtained and reasonably apprises the Wades of the nature of the claim.

The testimony supports the conclusion that at the time of the trial the Wades were in default on the note in the amount awarded to Seeburg by the judgment. The remainder of the proceeds are held subject to an equitable lien and will be paid to See-burg only if the Wades fall further into default. Seeburg has not been unjustly enriched since he has only been awarded an amount equivalent to the unpaid monthly payments in the court’s award arising from his equitable lien on the proceeds, and because any right to the recovery of the balance of the proceeds depends upon the failure of the Wades to make their future payments on the note.

The judgment of the trial court is affirmed.


author: NYE, Chief Justice.

text:
    PAT WOMACK, INC., et al., Appellants, v. WESLACO AVIATION, INC., & W. Warren Nichols, Appellees.
    No. 13-84-151-CV.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 7, 1985.

      Ronald B. Layer, McAllen, for appellants.
    Hollis Rankin, III, McAllen, for appel-lees.
    Before NYE, C.J., KENNEDY, and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a judgment of the trial court favoring Weslaco Aviation, Inc., and W. Warren Nichols against Pat Wom-ack, Inc.

Weslaco Aviation (Weslaco) is in the business of applying pesticides to agricultural crops by airplane (crop dusting). Womack is engaged in farming cotton. Weslaco filed suit asserting that Womack had agreed to pay them the charges associated with the aerial application of chemicals to his cotton crop. This case began in the trial court as a suit on sworn account. Womack filed a verified denial of the account. The case proceeded to trial before the court on its merits, whereupon the court found that Weslaco was entitled to recover the full amount of this account from Womack. Findings of fact and conclusions of law were filed and are before us in this appeal.

Womack asserts seven points of error on appeal. Womack claims that there was no evidence or, alternatively, insufficient evidence to support the implied finding that there was an account between them and Weslaco. They also argue that there was no evidence, or insufficient evidence, to support a finding that Weslaco furnished chemicals and aerial application of chemicals and that Womack agreed to pay for them. Womack also argues that there was no evidence to support the trial court finding that the goods were delivered to Wom-ack; there was no evidence to support the justness and fairness of the bill; and there was no evidence to support a finding of an agreement to pay made by Womack.

The facts of this case are hotly disputed. Warren Nichols, President of Weslaco, testified that Homer Womack first contacted them about spraying his crop. He testified that Womack had ordered jobs in the past. On the particular job in question, Nichols testified that Womack told him to begin sending all invoices to Joe Christmas’ gin. Womack told Weslaco that Joe Christmas’ gin would take care of the payments.

Nichols verified the agreement prior to performing any services. According to Nichols, Weslaco sprayed Womack’s crop and billed Joe Christmas, who refused to pay. The invoices, according to Nichols, were originally set up in Womack’s name but were changed to Christmas’ name at Wom-ack’s request. The invoices, as they appear in the record, show that they were billed to Joe Christmas’ gin for services performed on Womack’s cotton.

Wayne Nichols, Vice-President of Wesla-co, testified that they expected Womack to pay if Joe Christmas didn’t. He testified that their original understanding was that, if Joe Christmas didn’t pay, Womack would. He further testified that he was personally involved in the spraying of Womack’s cotton crop.

H.L. Womack testified that he had a cotton contract with Joe Christmas and told Nichols that Christmas would pay for the spraying. He said that he had entered into a contract with Christmas to grow the cotton and that he told Nichols from the very beginning that he would not pay for the spraying of the cotton crop. The trial court found the following facts that are relevant to this appeal:

I. The account sued upon was for services performed by Weslaco of aerial application of chemicals to a cotton crop owned by Womack.
2. Womack originally contacted Wesla-co and requested them to perform aerial application of chemicals to his cotton crop.
3. Womack later advised Weslaco to mail the bill to Joe Christmas’ gin.
4. Womack did not advise Weslaco, nor was there an agreement, that Womack would not be responsible for the charge for the aerial application to the crop.
5. Weslaco made application of the chemicals to Womack’s cotton crop.
6. The bills were mailed to Joe Christmas, but payment was not made.
7. The amount due Weslaco is $6,506.00, which was a reasonable charge for such service in Hidalgo County in 1980.
8.The application of chemicals to Wom-ack’s crop was a benefit to him.

In this case, Womack filed a verified denial which destroyed the evidentiary effect of the sworn account and forced the plaintiff to put on proof of his claim. Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860 (Tex.1979). Because a verified denial was filed in the case at bar, Weslaco was required to prove its case as at common law. The essential elements of a common law action on account are (1) that there was a sale and delivery of merchandise, (2) that the amount of the account is just, that is, that the prices are charged in accordance with an agreement, they are the usual, customary and reasonable prices for that merchandise, and (3) that the amount is unpaid. Nichols v. William A. Taylor, Inc., 662 S.W.2d 396 (Tex. App. — Corpus Christi 1983, no writ); Jones v. Ben Maines Air Conditioning, Inc., 621 S.W.2d 437 (Tex.Civ.App. — Texarkana 1981, no writ).

The trial court found from the undisputed evidence that Weslaco had promptly made application of chemicals to Womack’s cotton crop after Womack had contacted them. The trial court also determined that the $6,506.00, which Weslaco claims it was owed, was a reasonable charge for services in Hidalgo County, Texas in 1980. Womack argues that there is no evidence in the record to support the finding of the justness and fairness of Wes-laco’s bill. After reviewing the entire record, we must agree. It was Weslaco’s burden to establish the justness of its account. This could be proven by showing that the charges were based upon an agreement between the parties, or, in the absence of an agreement, the charges were usual, customary, or reasonable. Barcheers v. Braswell, 548 S.W.2d 76 (Tex.Civ. App. — El Paso 1977, no writ); Brooks v. Eaton Yale and Towne, Inc., 474 S.W.2d 321 (Tex.Civ.App. — Waco 1971, no writ).

At trial, the parties stipulated to the introduction of the invoices which were sent to Joe Christmas’ gin by Weslaco. However, there was no stipulation made that these charges were reasonable. Furthermore, neither Warren Nichols nor Wayne Nichols testified as to the reasonableness of the charges. There was no evidence in the record that the parties agreed on an amount to be charged. We find that Wes-laco did not prove its common law action on account because it failed to show the justness of the account. Avia Jet Management Corp. v. Aeroplace Service, Inc., 626 S.W.2d 325 (Tex.App. — Tyler 1981, no writ); Ron-Dell Associates, Inc. v. Texas Plywood and Lumber Co., 504 S.W.2d 922 (Tex.Civ.App. — Waco 1973, no writ); Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App. — Dallas 1963, no writ). Appellant Womack’s sixth point of error is sustained.

The trial court also found that Womack was liable to Weslaco because the work which they performed benefited Wes-laco. This suggests that the trial court may have found that Weslaco had a cause of action against Womack on quantum meruit. However, the pleadings assert only that the parties made an agreement whereby Womack promised to pay to Wes-laco the charge for the chemicals and the aerial application of those chemicals. There is no alternative pleading for quantum meruit alleged in the petition or asserted by trial amendment. The law is settled that one may not merely allege an express contract and recover under quantum meruit. Tatum v. Tatum, 606 S.W.2d 31 (Tex.Civ.App. — Corpus Christi 1980 , no writ); Freeman v. Carroll, 499 S.W.2d 668 (Tex.Civ.App. — Tyler 1973, writ ref’d n.r. e.). Appellees were precluded from recovering under a theory of quantum meruit by their lack of pleadings.

Weslaco asserts by counterpoint that this court should impose a 10% penalty upon Womack because Womack’s appeal was groundless, frivolous or brought for purposes of delay. In view of our disposition of this case, the imposition of such a penalty would be clearly erroneous. Wes-laco’s counterpoint is overruled.

The appellate court may reverse and remand a case for another trial when it appears from the record that the case has not been fully developed. Groves v. Hanks, 546 S.W.2d 638 (Tex.Civ.App. — Corpus Christi 1976, writ ref’d n.r.e.). We believe that, in the interest of justice, the case should be reversed and a new trial ordered.

The judgment of the trial court is accordingly REVERSED and the cause is REMANDED.


author: UTTER, Justice.

text:
    Gustavo RIOS, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-255-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 7, 1985.

      Joseph A. Connors, III, McAllen, for appellant.
    Theodore C. Hake, Crim. Dist. Atty., Ed-inburg, for appellee.
    Before UTTER, KENNEDY and KEITH, JJ.
   OPINION

UTTER, Justice.

This is an appeal from a jury conviction for the felony offense of burglary of a habitation with intent to commit rape for which the trial court assessed appellant’s punishment at ten years in the Texas Department of Corrections, probated for ten years. We reverse the judgment of the trial court.

In his first and second grounds of error, appellant asserts that the trial court erred in overruling appellant’s motion to dismiss for want of a speedy trial.

The offense, for which appellant was convicted, was committed on February 18, 1983. Later that night, appellant voluntarily went with a police officer to the Mission Police Department for questioning, after which appellant was not arrested but was allowed to leave. On February 24, 1983, a formal complaint was filed in Justice of the Peace Court, which then issued a warrant for appellant’s arrest. The complaint charged appellant with the commission of the felony offense of Burglary of a Habitation with Intent to Commit Rape. Appellant was subsequently indicted for the offense on March 7,1984, and was arrested on the indictment on March 14, 1984. The State first announced ready for trial on March 12, 1984. On April 2, 1984, appellant filed his motion to dismiss for want of a speedy trial; and, a hearing on the motion to dismiss was held on April 18, 1984. At the conclusion of the hearing on the motion to dismiss, the trial court overruled appellant’s motion to dismiss after concluding (1) that, based upon the authority of Davis v. State, 630 S.W.2d 532 (Tex.App.— Amarillo 1982, no pet.), the criminal action against appellant did not commence for Texas Speedy Trial Act purposes until appellant was indicted on March 7, 1984, and (2) that, since the State made an announcement of ready for trial on March 12, 1984, within 120 days after appellant was indicted, the State did not violate appellant’s rights under the Texas Speedy Trial Act.

In support of his first and second grounds of error, appellant contends (1) that, for purposes of the Texas Speedy Trial Act, TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984), the criminal action against him commenced (a) at the time when he was allegedly “detained in custody” on February 18,1983, or, in the alternative, (b) when the formal complaint was filed against him on February 24, 1983, and (2) that, since the State did not announce ready for trial until more than one year (and more than 120 days) after both events, the trial court should have granted his motion, to dismiss. In response, the State argues (1) that, under the authority of Davis v. State, the criminal action against appellant commenced on March 7,1984, when appellant was charged by indictment with the offense or, in the alternative, (2) that, if the action commenced at the time of the questioning on February 18, 1983 or at the time of the filing of the complaint and issuance of the warrant of arrest on February 24, 1983, “thus putting the State to the burden of proving up excusable periods, the State has met this burden by showing due diligence to locate [appellant], which was unsuccessful.”

The Texas Speedy Trial Act, TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984), in pertinent part, provides:

Art. 32A.02. Time limitations
Section 1. A court shall grant a motion to set aside an indictment, information, or complaint if the state is not ready for trial within:
(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony;
* * * * * *
Sec. 2. (a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when an indictment, information, or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.
* * * * * *
Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:
* * * * * *
(4) a period of delay resulting from the absence of the defendant because his location is unknown and:
(A) he is attempting to avoid apprehension or prosecution; or
(B) the state has been unable to determine his location by due diligence;
(5) a period of delay resulting from the unavailability of the defendant whose location is known to the state but whose presence cannot be obtained by due diligence or because he resists being returned to the state for trial;
* * * * * *
(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial;

(Emphasis added.)

Regarding appellant’s claim that he was “detained in custody,” the record of the hearing on the motion to dismiss reflects that, on February 18, 1983, after the commission of the offense, Mission Police Officer Victor Flores went to appellant’s residence where, after appellant’s mother allowed him inside, Flores then visited with appellant. There, Flores asked appellant to go with him to the police station “to clean up his name, to investigate the situation a little bit further” regarding the offense. Flores testified that “I wasn’t arresting him for anything. I asked him if he wanted to go with me” and that, if appellant had refused to go with him, “I would probably take him out for investigation purposes only” — “that would have been wise.”

Appellant went voluntarily to the police station with Officer Flores; and, at the police station and after having been given his Miranda warnings, appellant was interrogated, fingerprinted and then taken home by Mission Police Officer George Rangel. Officer Rangel testified that, during the interrogation, appellant was “free to leave if he wanted to go” and, after the interrogation, he told appellant that “the case was going to be thoroughly investigated and that it was going to be sent to the District Attorney’s office for their perusal to see if we had enough evidence to prosecute” and, “if he was going to leave town, to let us know and if he was going to go, to let us know so we can keep in contact with him.” During that evening, appellant was neither placed under arrest nor told that he was going to be arrested. Further, appellant did not testify that he was placed under arrest, that he felt that he was deprived of his freedom or that he felt that he was not free to leave, if he so decided. We hold that, for purposes of Art. 32A.02 § 2(a), appellant was not “detained in custody” and, since appellant was not arrested, the criminal action against appellant did not commence at that time. Appellant’s first ground of error is overruled.

In his second ground of error, appellant argues that, under the express language of Art. 32A.02 § 2(a), the criminal action against him commenced on February 24, 1983, the date on which the formal complaint was filed against him in Justice of the Peace Court. As noted above, Art. 32A.02 § 2(a), in pertinent part, provides that “a criminal action commences for purposes of this article when an indictment, information, or complaint against the defendant is filed in court, _” (Emphasis added.) Appellant acknowledges the holding in Davis v. State, which construes Art. 32A.02 § 2(a) and upon which the trial court relied in overruling appellant’s motion to dismiss, but appellant contends that the holding in Davis v. State is erroneous.

In Davis v. State, the Amarillo Court of Appeals held:

Under Article 1, Section of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure, a person shall not be “held to answer” for a felony unless on indictment by a grand jury. When we read Section 1(1) and Section 2(a) of the Texas Speedy Trial Act in light of the mandatory language of Article 1, Section 10 of the Texas Constitution and Article 1.05 of the Texas Code of Criminal Procedure, we must conclude that, as used in Section 2(a), the word “indictment” refers to felony prosecutions and the words “information or complaint” refer to misdemeanor prosecutions. It follows that, for the purposes of the Texas Speedy Trial Act, a felony criminal action commences when an indictment is filed in court or when the accused is arrested.

Davis v. State, 630 S.W.2d at 538-539. (Emphasis added.) Thus, the Amarillo Court of Appeals in Davis v. State, held that, in felony prosecutions, the filing of a complaint does not commence the “criminal action” for purposes of Art. 32A.02 § 2(a).

Contrary to Davis v. State, we hold that, under the clear intent of the express language of Art. 32A.02 § 2(a), a criminal action, whether classified as a felony or misdemeanor prosecution, commences “when an indictment,' information, or complaint against the defendant is filed in court, ...” We agree with the dissent in Davis v. State filed by Chief Justice Reynolds wherein he wrote:

Notwithstanding the majority’s citation of Texas constitutional and statutory provisions for the proposition that no person shall be finally tried and convicted of a felony except upon indictment by a grand jury, unless waived, none of those provisions undertake to say, and do not say, that the filing of a complaint accusing one of a felony offense with a justice of the peace is not the commencement of a prosecution. In fact, it has been held, long ago and recently, that the filing of a complaint accusing one of a felony offense with a justice of the peace is the initial step in the commencement of a prosecution under Texas law. Baskins v. State, 75 Tex.Cr.R. 537, 171 S.W. 723, 725 (1914); Ex parte Clear, 573 S.W.2d 224, 228 (Tex.Cr.App.1978).
Indeed, the very wording in Clear, paraphrased as to date and crime, exactly expresses the situation before us thusly: The complaint filed against appellant on 10 July 1975 was the initial step in a criminal action instituted to secure his conviction and punishment for the crime of arson. Id. So, the appellant became, within the meaning of Marion [U.S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ], an “accused” on 10 July 1975 when the complaint was filed, and the length of delay is measured from that date. Arivette v. State, 513 S.W.2d 857, 861 (Tex.Cr.App.1974).

Davis v. State, 630 S.W.2d at 541.

Under our interpretation of Art. 32A.02 § 2(a), the trial court erred in concluding that the criminal action against appellant did not commence until appellant was indicted on March 7, 1984, and not when the formal complaint against him was filed on February 24, 1983.

In further support of our holding, we note the following language from Bueno v. State, 677 S.W.2d 261 (Tex.App. — Corpus Christi 1984, no pet.), a case which involved a felony prosecution for possession of heroin:

Appellant was charged with the offense which forms the basis of this appeal on January 4, 1983, when the complaint was first filed. This was the day when the clock began to tick. Lyles v. State, 653 S.W.2d 775 (Tex.Crim.App. 1983) (en banc).

Bueno v. State, 677 S.W.2d at 266. (Emphasis added.)

As set forth above, the State argues that, if the criminal action against appellant commenced at the time of the filing of the complaint on February 24, 1983, “thus putting the State to the burden of proving up excusable periods, the State has met this burden by showing due diligence to locate [appellant], which was unsuccessful.”

In our case, the State first secured the presence of appellant on March 14, 1984, more than a year after the commencement of the criminal action on February 24,1983. The State first announced ready for trial on March 12,1984, also more than a year after the commencement of the criminal action on February 24, 1983.

The State may be ready for trial from an evidentiary standpoint and yet not ready for trial under Art. 32A.02 for failure to secure the presence of the defendant. The presence of the defendant is a readiness burden, which falls upon the State. This is clearly indicated by the fact that the Texas Speedy Trial Act tolling exceptions include three instances in which the State will not be charged with delays due to the defendant’s absence. Lyles v. State, 653 S.W.2d 775 (Tex.Crim.App.1983); Newton v. State, 641 S.W.2d 530 (Tex.Crim.App.1982).

In this case, the potentially applicable time exclusions under the Texas Speedy Trial Act for delay resulting from a defendant’s absence are those quoted above in Art. 32A.02 § 4 (4), (5) and (9). Because the statute specifically excludes time periods when the defendant is absent under the limited circumstances stated in Art. 32A.02 § 4 (4), (5) and (9) quoted above, it is obvious that the mere absence of the defendant is a circumstance that, except for those specific statutory exclusions, does not toll the statute. Lyles v. State, 653 S.W.2d at 778; Newton v. State, 641 S.W.2d at 531. Appellant’s absence and the State’s failure to secure appellant’s presence for more than a year after the criminal action against him had commenced effectively rebutted the prima facie showing of readiness upon the State’s announcement of ready on March 12, 1984.

Upon rebuttal by demonstration that the State was not ready for trial within the time allowed by Art. 32A.02, the burden shifted back to the State to prove that there were excludable periods of delay that would extend the initial time limitation. Newton v. State, 641 S.W.2d at 531.

Regarding appellant’s absence and the State’s failure to secure appellant’s presence, the record of the hearing on the motion to dismiss reflects the following: Mission Police Officer George Rangel testified that Rangel received the arrest warrant issued by Justice of the Peace Arturo Leal on February 24, 1983. Soon afterwards, Rangel went to appellant’s home to arrest appellant; at that time, appellant was not home and Rangel told “whoever was at the door when he gets back in town, have him call me.” At the door of appellant’s home, Rangel had been told that appellant “was somewhere in town working or looking for a job or something of that nature.” A week or two later, Rangel received a telephone call from McAllen attorney Joe Cha-pa regarding appellant and was told that appellant “could turn himself over” to Ran-gel. Rangel testified that, “after Mr. Cha-pa told me that he was going to bring him in, I took Mr. Chapa’s word that he was going to bring him in, which he never did, and I stopped looking for him. Then maybe about a week or so later, his secretary called me and asked me if Mr. Rios had turned himself in and I advised her that he hadn’t.” After receiving the telephone call from Chapa’s secretary, Rangel then started looking for appellant again. Rangel had heard that appellant “was around” and “that he was living behind the bus station on the 800 Block of Conway” and, after having gone there, Rangel “couldn’t find him, nobody was home.” Rangel also went to appellant’s mother’s house “a couple of times.” Rangel never received a telephone call from appellant at the police station.

At the hearing on the motion to dismiss, appellant gave the following testimony: On February 18, 1988, appellant lived at his mother’s house in Mission and, after February 18, 1983, appellant never moved from his mother’s house into another home. Appellant never lived in “back of the bus station.” When Rangel came to arrest him at his mother’s house, appellant was “out of town” in Reynosa, Mexico, visiting his uncle. He visited his uncle there “about three hours” and went “back home to Mission” to his mother’s house. Appellant went to the police station “a couple of times” and “both times Rangel was not there.” Appellant left a message “once, the first time,” and never turned himself into Officer Rangel “because he was never there when I went.” After appellant spoke with McAllen attorney Joe Chapa, appellant went to see Rangel thereafter, but “he wasn’t there.” Sometime after February 18, 1983, appellant saw Rangel at the “Quintanilla Store,” where Rangel waived “hi” to appellant and, when he left, Rangel said “Goodbye.” Also sometime after February 18, 1983, appellant saw Rangel driving “from McAllen to Mission” at the intersection of Ware Road and Business Highway 83 in Mission. Rangel’s car “was going about 30 or 40 miles per hour” and Rangel “took his eyes off the road and turned his head all the way, you know, towards me.” Since February 18, 1983, until the time he was arrested on March 14, 1984, appellant did not “try and hide” from the police so that he would not be arrested in this case.

At the hearing on the motion to dismiss, Mission Police Officer Victor Flores testified that he did not know why appellant was not arrested from February 18, 1983, until March 14, 1984.

After reviewing the evidence presented at the hearing on the motion to dismiss, we conclude that the State failed to discharge its burden under Art. 32A.02 § 4 “to prove there were excludable periods of delay that would extend the initial time limitation.” See Newton v. State, 641 S.W.2d 530 (Tex.Crim.App.1982). The trial court erred in overruling appellant’s motion to dismiss. Appellant’s second ground of error is sustained.

We have considered all of appellant’s remaining grounds of error and they are all overruled. The judgment of the trial court is REVERSED, and the indictment is ordered dismissed.

      . We note that TEX.CODE CRIM.PROC.ANN. art. 15.04 (Vernon Supp.1984) defines the term “complaint” as follows:
      Art. 15.04. Complaint The affidavit made before the magistrate or district or county attorney is called a “complaint" if it charges the commission of an offense.
      TEX.CODE CRIM.PROC.ANN. art. 15.05 (Vernon Supp.1984) sets forth the requisites of a valid complaint, upon which a magistrate pursuant to TEX.CODE CRIM.PROC.ANN. art. 15.-03 may issue a warrant of arrest or a summons. Neither Art. 32A.02 § 2(a) nor any other provision of the Texas Code of Criminal Procedure regarding the term "complaint” designates that term as having reference to misdemeanor prosecutions only. Compare Ex Parte Hyett, 610 S.W.2d 787 (Tex.Crim.App.1981); Washington v. State, 531 S.W.2d 632 (Tex.Crim.App.1976); Austin v. State, 531 S.W.2d 615 (Tex.Crim.App. 1975); Chappie v. State, 521 S.W.2d 280 (Tex. Crim.App.1975) (in non-capital felony cases where a defendant waives his right to be tried on an information pursuant to TEX.CODE CRIM.PROC.ANN. art. 1.141 (Vernon Supp. 1984), the information need not be but may be based upon a complaint).

      . TEX. CONST. Art. 1 § 10 provides:
      § 10. Rights of accused in criminal prosecutions
      Sec. 10. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury ... and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, ...
      TEX.CODE CRIM.PROC.ANN. art. 1.05 (Vernon Supp.1984) provides:
      Art. 1.05. Rights of Accused In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury_ No person shall be held to an-
      swer for a felony unless on indictment of a grand jury.


author: KENNEDY, Justice.

text:
    MILITARY HIGHWAY WATER SUPPLY CORP., et al, Appellants, v. Daniel BOONE, Chief Appraiser of Hidalgo County Appraisal District, Appellee.
    No. 13-84-270-CV.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 1, 1985.

      Aida S. Flores, McAllen, Donald W. Al-lee, Edinburg, Barry Evan Jones, Mercedes, Leo Montalvo, McAllen, Jack Bishop, Austin and Neal King, Mission, for appellants.
    Richard S. Talbert, Weslaco, for appellee.
    Before KENNEDY, UTTER and KEITH, JJ.
   OPINION

KENNEDY, Justice.

This is a summary judgment case. Appellant is a corporation organized under the Texas Non-Profit Corporation Act. Appel-lee is the Chief Appraiser of the Hidalgo County Appraisal District. On appellee’s motion for summary judgment, appellant was denied an exemption from the payment of property taxes for the year 1983. We affirm.

Appellant was incorporated in 1971, under TEX.REY.CIV.STAT.ANN art. 1434a (Vernon 1980) and TEX.REV.CIV. STAT.ANN art. 1396-1.01 et seq. (Vernon 1980).

Appellant’s request for an exemption from property taxes under TEX.TAX CODE ANN. § 11.18 (Vernon 1982) was granted by a decision of the Hidalgo County Appraisal Review Board. Appellee filed this suit to overturn this decision. Appel-lee filed a motion for summary judgment alleging that appellee was entitled to judgment as a matter of law because Military Highway Water Supply Water Corporation was not organized exclusively for the charitable purposes of acquiring, storing, transporting, selling or distributing water for public use as required by TEX.TAX CODE ANN. § 11.18(c)(1). This motion was granted. Appellant, by its point of error, asserts that there is a genuine issue of material fact to be determined at the trial on the merits.

In a motion for summary judgment, the burden of proof that there is no genuine issue of material fact is on the movant, and all doubts as to the existence of a fact issue will be resolved against the movant. Bradley v. Quality Service Tank Lines, 659 S.W.2d 33 (Tex.1983).

The statute, under which appellant claims his tax exemption, provides in relevant part:

(a) An organization that qualifies as a charitable organization as provided by Subsection (c) of this section is entitled to an exemption from taxation of the buildings and tangible personal property that: (1) are owned by the charitable organization; and
(2) except as permitted by Subsection (b)of this section, are used exclusively by qualified charitable organizations.
(b) Use of exempt property by persons who are not charitable organizations qualified as provided by Subsection (c) of this section does not result in the loss of an exemption authorized by this section if the use is incidental to use by qualified charitable organizations and limited to activities that benefit the beneficiaries of the charitable organizations that own or use the property.
(c) To qualify as a charitable organization for the purposes of this section, an organization (whether operated by an individual, as a corporation, or as an association) must:
(1) be organized exclusively to perform religious, charitable, scientific, literary, or educational purposes and, except as permitted by Subsection (d) of this section, engage exclusively in performing one or more of the following charitable functions:
* * * * * *
(G) acquiring, storing, transporting, selling, or distributing water for public use;
******
(2) be operated in a way that does not result in accrual of distributable profits, realization of private excess of a reasonable allowance for salary or other compensation for services rendered, or realization of any other form of private gain and, if the organization performs one or more of the charitable functions specified by Paragraph (C), (D), (E), (F), (G), (J), (K) or (M) of Subdivision (1) of this subsection, be organized as a nonprofit organization as defined by Act; and
(3) by charter, bylaw, or other regulation adopted by the organization to govern its affairs:
(A) pledge its assets for use in performing the organization’s charitable functions; and
(B) direct that on discontinuance of the organization by dissolution or otherwise the assets are to be transferred to this state or to an educational, religious, charitable, or other similar organization that is qualified as a charitable organization under Section 501(c)(3), Internal Revenue Code of 1954, as amended.
(d)Performance of noncharitable functions by a charitable organization that owns or uses exempt property does not result in loss of an exemption authorized by this section if those other functions are incidental to the organization’s charitable functions.

Appellee argues that, as a matter of law, appellant failed to meet the provisions of § 11.18(c)(1) in that the 1982 amendment to Appellant’s Articles of Incorporation changed the “purpose” provision so as to permit activities other than those permitted by § 11.18(c)(1). We agree.

The “purpose” provision of appellant’s Articles of Incorporation was amended in 1979 and again in 1982. The 1971 “purpose” provision read:

The Corporation is formed for the purpose of furnishing a water supply for general farm use and domestic purposes to individuals residing in the rural communities of southern Cameron and Hidal-go Counties, Texas, and the surrounding rural areas.

The 1979 “purpose” provision read:

The purposes for which the corporation is organized are to furnish a water supply and sewer services for individuals, towns and corporations in rural areas; of Cameron and Hidalgo Conties.

The 1982 “purpose” provision reads:

The purposes for which the corporation is organized are to furnish water supply and sewer service for individuals, towns and corporations and to provide other community services which are of benefit to the corporation’s general membership. (emphasis added)

Both statutory and constitutional provisions purporting to grant exemptions from taxation, including § 11.18, will be given a narrow and strict construction. Willacy County Appraisal District v. North Alamo Water Supply Corp. 676 S.W.2d 632, (Tex.App. — Corpus Christi 1984, writ ref d n.r.e.). When interpreting a predecessor to § 11.18, TEX.REV.CIY. STAT.ANN. art. 7150. (repealed 1979), the Texas Supreme Court said, “[to] qualify under these constitutional and statutory requirements, an institution must be one of purely public charity in the purposes for which it is formed and the manner and means it has adopted for the accomplishment of such purposes; ...” Hilltop Village, Inc. v. Kerrville Independent School District, 426 S.W.2d 943, 946 (Tex.1968). (emphasis added), overruled on other grounds, City of McAllen v. Evangelical Lutheran Good Samaritan Society, 530 S.W.2d 806 (Tex.1975). We find that the 1982 amendment to the appellants’ Articles of Incorporation, which added the words “and to provide other community services which are of benefit to the corporation’s general membership”, violates the requirement of § 11.18 that the charitable organization “be organized exclusively to perform religious, charitable, scientific, literary or educational purposes ...” As phrased, the amendment permits the corporation to perform non-charitable activities. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.

      . Public Utilities — Water supply or sewer service corporations.

      . Texas Non-Profit Corporation Act.

      .This statute was amended effective January 1, 1984. See TEX.TAX CODE ANN § 11.18 (Vernon Supp.1984).


author: BURGESS, Justice.

text:
    ORKIN EXTERMINATING CO., INC., Appellant, v. Ineda LESASSIER, Appellee.
    No. 09-83-221 CV.
    Court of Appeals of Texas, Beaumont.
    Feb. 7, 1985.
    Rehearing Denied March 6, 1985.

      Philip Babin, III, Strong, Pipkin, Nelson, Parker & Bissell, Beaumont, for appellant.
    M. Scott Taylor, Lufkin, for appellee.
   OPINION

BURGESS, Justice.

This is a Texas Deceptive Trade Practices case. Mrs. Ineda LeSassier contracted with Orkin Exterminating Co., Inc., for termite extermination services on May 10, 1978. Orkin in their contract, stated the treatment would involve (1) removal of cellulose debris, (2) scraping of tunnels, (3) trench and treat soil around the foundation and (4) trench and treat around any structure such as water pipes or television antennas that made contact with the house and ground. Mrs. LeSassier paid Orkin upon signing the contract and several days later, Orkin’s service man came to Mrs. LeSassier’s home for the treatment. She let him in the home and returned to her employment. When she returned home from work that day, the service man was gone and she had no further contact with Orkin until March of 1979 when she began trying to contact Orkin because of what she felt were indications of termite activity. In May, 1979, Mys. LeSassier personally met with representatives of Orkin and on May 15, 1979 another treatment was done. Mrs. LeSassier continued to have termite problems and damage. She retained another firm to exterminate her home, had the damage repaired and filed suit against Or-kin. Trial was before a jury which found Orkin had “represented that work or services had been performed when such work or services had not been performed”, that such act was a producing cause of Mrs. LeSassier’s damages, and awarded her damages of $12,600.00 plus attorneys’ fees of $5750.00. The trial court then trebled the actual damages and entered judgment for $37,800.00 and the $5750.00 attorneys’ fees. Appeal has been perfected to this court.

Appellant’s first point of error:

“There is no evidence, or in the alternative, insufficient evidence, of any act of Orkin actionable under the D.T.P.A.”

This argument is based on the premise, that although the evidence may have shown the services contracted for were never performed, there was no representation by Orkin the services had actually been performed. This they contend, is simply breach of contract and not a violation of the D.T.P.A.. We concede there was no direct verbal assertion by Orkin to Mrs. LeSassier that all the termite treatment procedures described in the contract had been performed. But keep in mind, many of these procedures were to be performed under her home and virtually out of sight. The Orkin man came and began to perform some treatment procedures. Mrs. LeSassier left him and returned to work. She never saw an Orkin man again until she complained. The jury obviously found that a service man coming to her home, beginning treatments and thus leaving, never to return, was a representation to Mrs. LeSas-sier that all the treatments called for in the contract had been performed. We believe this to be a reasonable deduction from the evidence. Appellant’s point of error number one is overruled.

Points of error two, three and four complain of the damages awarded by the trial court. We will consider points of error three and four together, as they involve the question of what may be considered “actual damages”. The jury found, as elements of Mrs. LeSassier’s damages, the sum of $4000.00 as the loss of interest resulting from withdrawal of her savings and the sum of $1181.00 as the cost of re-exterminating her home. Point of error number three states:

“This trial court erred in rendering judgment for pre-judgment interest.”

This point refers to the awarding of the $4000.00 as the loss of interest resulting from the withdrawal of Mrs. LeSassier’s savings. If this element of damage is prejudgment interest, she may not recover it because her damages under the Deceptive Trade Practices Act were not definitely determinable as to time and amount. See Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815 (Tex.App. — San Antonio 1982, writ ref’d n.r.e.). Is it recoverable, however, as “actual damages?” We have been provided no precedent which holds “loss of use” of funds used to effect repairs to be included within the definition of actual damages under the Deceptive Trade Practices Act.

We do, however, recognize a party is under an obligation to mitigate damages whenever possible. Consequently, a party is entitled to recover, as damages, those amounts reasonably expended in an effort to mitigate. Texas & P. RY. Co. v. Mercer et al, 127 Tex. 220, 90 S.W.2d 557 (1936). In a termite infestation ease, we believe it reasonable to (1) have an immediate re-extermination in order to mitigate damages and (2) to repair the termite damage in order to ascertain the correct measure of damage. The cost of these are certainly “actual damages.” In this case, the re-extermination cost and the loss of interest in order to effectuate repairs were “actual damages” of Mrs. LeSassier and therefore recoverable. Points of error number three and four are overruled.

Point of error number two:

“The trial court erred in rendering judgment contrary to the jury’s verdict.”

The trial court entered judgment for treble damages, in spite of the fact the jury found the defendant had not received written notice of Mrs. LeSassier’s complaint. There was no motion to disregard this finding. A trial judge is not empowered to disregard jury findings on its own initiative and in absence of a motion. Williams v. Northrup, 649 S.W.2d 740 (Tex. App. — Tyler 1983, writ ref’d n.r.e.), Durham v. Uvalde Rock Asphalt Company, 599 S.W.2d 866 (Tex.Civ.App. — San Antonio 1980, no writ). Point of error number two is sustained as to the trebling of damages by the trial court.

Accordingly, the judgment of the trial court is reformed only with regard to the award of treble damages. In all other respects, the trial court is affirmed.


author: REYNOLDS, Chief Justice.

text:
    Randolph JOHNSON and Wife, Betty Johnson, Appellants, v. SOUTHWESTERN PUBLIC SERVICE COMPANY, Appellee.
    No. 07-83-0257-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 19, 1985.
    Rehearing Denied March 18, 1985.

      Brian P. Quinn, D. Murray Hensley, McWhorter, Cobb & Johnson, Lubbock, for appellants.
    Charles R. Watson, Jr., Culton, Morgan, Britain & White, Amarillo, for appellee.
    Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.
   REYNOLDS, Chief Justice.

Randolph Johnson and wife, Betty Johnson, appeal from a take-nothing summary judgment, which denied them the relief they summarily requested in their action for a declaratory judgment to construe a right-of-way easement contract and summarily granted the relief for which Southwestern Public Service Company moved. Determining that the Johnsons neither have conclusively shown nor raised a material fact issue whether SPS violated the terms of the easement, and that SPS is entitled to a summary judgment as a matter of law, we affirm.

The material facts are not in dispute. The parties agree that the Johnsons’ predecessors in title, E.K. Warren & Son, conveyed to SPS a 30-foot easement and right of way for an electric power line across their property in 1952. The portions of the easement contract relevant to this appeal are worded thusly:

2. The ELECTRIC POWER LINE will consist of a variable number of conductors or wires, insulators, cross-arms, and all other necessary and desirable power line devices, attached to, supported from, and a part of the necessary structures consisting of a variable number of wood, steel, or other metal members or poles, props, guys and anchors.
3. Southwestern Public Service Company, ... will have the right of ingress and egress over adjacent lands of E.K. Warren & Son to and from the easement or right of way for the purpose of constructing, inspecting, patrolling, adding to or removing power line [sic ], its conductors, structures, and other devices; the right to relocate upon the right of way or easement; ...

In 1952 or 1953 SPS erected a 115 KV power line on the easement. In 1982 SPS acquired, by condemnation, two additional easements, each 25 feet wide, parallel and adjacent to each side of the 1952 easement. In 1983 SPS removed the 115 KV power line and replaced it with a 230/115 KV power line. The base of the new power line is located on the 1952 easement, and the crossarms extend over into the airspace of the two 25-foot easements.

In their brief, the Johnsons originally argued that SPS’s right to construct a power line became fixed, and was limited to the size of the first line erected in 1952 or 1953, and that SPS’s right to ingress and egress was over lands adjacent to those of E.K. Warren & Son, and not the lands of E.K. Warren & Son which were adjacent to the 1952 easement. However, on oral submission, the Johnsons candidly conceded that, except to the extent that the 1982 power line extends beyond the boundaries of the 1952 easement, SPS has the authority under the terms of the 1952 easement contract to construct and maintain the 1983 power line, and to use the 1952 easement to its fullest extent, which rights the law provides. Lower Colorado River Authority v. Ashby, 530 S.W.2d 628, 632-33 (Tex.Civ. App. — Austin 1975, writ ref’d n.r.e.). Thus, the Johnsons’ two points of error only present the contention that the trial court erred in denying their motion for summary judgment and in granting SPS's motion, because the 1983 power line transgresses the boundaries of the 1952 easement into the airspace of SPS’s two 25-foot easements and thereby places an additional unauthorized burden on the 1952 easement which was not contemplated by the parties to the original contract.

However, other than submitting the easement contract itself, the Johnsons did not evidence either the intention of the original parties to the contract or any burden the 1983 power line places on the 1952 easement which the terms of the easement do not permit. Neither do they contend that SPS does not have the right to use the two 25-foot easements in the manner or for the purpose for which they are being utilized. It is apparent that SPS could have no purpose for acquiring the 25-foot easements unless they could be used in connection with the 1952 easement. See Aycock v. Houston Lighting & Power Co., 175 S.W.2d 710, 716 (Tex.Civ.App. — Galveston 1943, writ ref’d w.o.m.). Since SPS has the right to use its easements to the fullest extent, it follows that SPS is not using any of the easements in an unauthorized manner or purpose.

This obtains because every easement carries with it the right to do whatever is reasonably necessary for the full enjoyment of the easement itself. The creation of an easement contemplates, unless negated by specific language, a future use consistent with the grant by the one entitled to it, under conditions different from those existing at the time of the conveyance, so that the easement owner may enjoy or carry out the object for which the easement was granted. Knox v. Pioneer Natural Gas Company, 321 S.W.2d 596, 601 (Tex.Civ.App. — El Paso 1959, writ ref’d n.r.e.). There is no language in the 1952 easement contract which denies to SPS the use it has made of the easement.

Indeed, the 1952 easement contract provides for a power line of variable conductors or wires, insulators and crossarms to be attached to and supported by a variable number of structures, with the right of ingress and egress for the purpose of constructing, patrolling, adding to, removing or relocating the power line. The language is plain and clearly authorizes SPS to remove the old power line and replace it with a new line. Therefore, the structure is not an additional unauthorized burden on the 1952 easement. Cantu v. Central Power & Light, 38 S.W.2d 876, 877 (Tex.Civ.App. —San Antonio 1931, writ ref’d).

There being no evidence of any unauthorized burden on, or unauthorized use of, the 1952 easement by SPS, the Johnsons did not establish their entitlement to summary judgment by conclusively proving the elements of their cause of action, City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979), and SPS was entitled to the rendition of the take-nothing summary judgment as a matter of law. Accordingly, points of error one and two are overruled.

The judgment of the trial court is affirmed.


author: EVANS, Chief Justice.

text:
    Richard Charles JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0268-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 20, 1984.
    Michael Charleton, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson, Harris County Asst. Dist. Atty., Rusty Hardin, Harris County Asst. Dist. Atty., Houston, for ap-pellee.
    WARREN, EVANS and BULLOCH, JJ.
   EVANS, Chief Justice.

A jury found the appellant guilty of murdering his ex-wife and assessed his punishment at life imprisonment. We have concluded that we do not have jurisdiction to consider the appeal.

The record reflects that the appellant was sentenced on April 18, 1988, and that he gave oral notice of appeal in court that same day. On April 20, 1983, the appellant timely filed a motion for new trial, which the trial court denied on the same date it was filed. The state contends that the appellant’s oral notice of appeal was rendered premature and ineffective, because appellant did not subsequently renew his notice of appeal after his motion for new trial was overruled, as required by Tex. Code Crim.P.Ann. art. 44.08(b) (Vernon Supp.1984).

It has been held that a notice of appeal, filed prior to the disposition of a motion for new trial by action of the court or by operation of law, is premature and therefore does not effectively initiate the appeal. See Menasco v. State, 503 S.W.2d 273 (Tex. Crim.App.1973); also Mosqueda v. State, 646 S.W.2d 589 (Tex.App. — Houston [1st Dist.] 1983, no pet.). Both of these cases involved appeals under article 44.08 prior to its amendment, effective September 1, 1981; however, we find no language in the amended statute that would permit a statutory construction different from that stated in Menasco. Thus, even though there no longer appears to be any reason for requiring an appellant to file a duplicate notice of appeal after the overruling of his motion for new trial, the holding in Menasco seems to mandate that course of action.

We note that the statute does authorize the courts of appeals to permit the giving of a late notice of appeal “for good cause shown.” Tex.Code Crim.P.Ann. art. 44.08(e) (Vernon Supp.1984). It has been held that a showing of “good cause” must be based upon sworn testimony or other sufficient supportive evidence in the record. Abron v. State, 531 S.W.2d 643 (Tex.Crim.App.1976); McCuin v. State, 504 S.W.2d 512 (Tex.Crim.App.1974); Menasco v. State, 503 S.W.2d at 275. Thus, we order the dismissal of this appeal without prejudice to the appellant’s filing of a motion in this court for reinstatement, supported by sufficient evidence of good cause for the late filing of the notice of appeal.

The appeal is dismissed for want of jurisdiction.


author: McCLOUD, Chief Justice.

text:
    Charles Ira ROBERSON, Appellant, v. STATE of Texas, Appellee.
    No. 11-84-192-CR.
    Court of Appeals of Texas, Eastland.
    Feb. 21, 1985.

      John R. Cook, Thompson & Cook, Breckenridge, for appellant.
    Jack G. Willingham, Criminal Dist. Atty., Anson, for appellee.
   McCLOUD, Chief Justice.

On February 9, 1982, appellant pleaded guilty to the misdemeanor offense of driving while intoxicated, and the trial court entered an order deferring the adjudication of guilt and placing appellant on probation for one year. See TEX.CODE CRIM.PRO. ANN. art. 42.13, sec. 3d (Vernon Supp. 1985). On October 12, 1982, the State’s motion to revoke probation and to adjudicate appellant’s guilt was filed and a capias was issued. Appellant was arrested in Breckenridge, Texas, on March 13, 1984, 17 months after capias had been issued and 13 months after the end of his probationary period. On April 10, 1984, the trial court entered an order revoking probation, adjudicating appellant guilty and sentencing him to confinement for three days in jail and a $350 fine.

Appellant challenges the trial court’s jurisdiction to revoke probation and adjudicate guilt. Appellant contends diligence was not exercised in his arrest. We agree.

The trial court has jurisdiction to revoke probation after the expiration of the probation period where the motion to revoke is filed and the capias is issued before the end of the probation period and “the court’s order of arrest is followed by a diligent effort to apprehend and to hear and determine the claimed violation.” Guillot v. State, 543 S.W.2d 650 (Tex.Cr. App.1976); Stover v. State, 365 S.W.2d 808 (Tex.Cr.App.1963); Delgado v. State, 634 S.W.2d 354 (Tex.App. — Waco 1982, no pet’n). The motion to revoke was filed and the capias was issued prior to the expiration of the probation period on February 9, 1983. However, the State has not shown diligence in the arrest of appellant.

Appellant was placed on probation by the 259th District Court located in Shackelford County. A condition of appellant’s probation was that he remain within Stephens County. Shackelford and Stephens Counties are adjacent sparsely populated West Texas Counties. At all times pertinent to this case, appellant resided in Breckenridge, the county seat of Stephens County. The record reflects Breckenridge is 22 miles from the county seat of Shackelford County. The Shackelford County Probation Officer had appellant’s home address, a work address and the addresses of two people who knew appellant’s whereabouts at all times.

Appellant reported in person once a month to the Stephens County Adult Probation Office and by mail once a month to the Shackelford County Adult Probation Office. Appellant continued to report after the capias was issued. The Shackelford County Adult Probation Office did not inform the appellant by telephone or letter that a motion to revoke his probation had been filed and that a capias had been issued. The original capias was filed with the Shackelford County Probation Office the same day it was issued. The probation officer did not forward any of the addresses on file to Shackelford County Sheriff Ben. J. Riley.

The only attempt to locate the appellant was the entry of the capias on “the computer.” Sheriff Riley testified that if appellant had been stopped by a Department of Public Safety Officer and a “10/29” check was run, “the computer” or teletype would have shown that a warrant was outstanding on appellant.

Sheriff Riley testified that he had known the appellant since 1960 or 1962. He knew where appellant was working in Breckenridge during part of the time he was on probation. Sheriff Riley had been in Stephens County after the capias had issued. He did not discuss apprehending the appellant with anyone. He did not see appellant until appellant was arrested in Breckenridge on March 13, 1984.

Rocky Wesley, a police officer in Breckenridge, stated he had known appellant since junior high school and had seen him on a regular basis since October of 1982. Officer Wesley was an eyewitness to the incident on August 28,1982, which was the basis of the motion to revoke probation. He testified that if he had known a capias had been issued, he would have picked up the appellant in “ten minutes.”

Appellant’s first ground of error attacks the jurisdiction of the trial court. The thrust of the State’s argument is that no appeal may be taken from an “adjudication of guilt” in a deferred adjudication case. See Article 42.13, Sec. 3d(b), supra; Contreras v. State, 645 S.W.2d 298 (Tex. Cr.App.1983); Wright v. State, 592 S.W.2d 604 (Tex.Cr.App.1980). Appellant’s attack upon the “personal jurisdiction” of the trial court is not an appeal of the trial court’s determination of an “adjudication of guilt.” We do not construe Article 42.13, Sec. 3d(b) to preclude appellant from raising the issue that the court had no “jurisdiction.” Appellant properly preserved his challenge to the trial court’s personal jurisdiction in his motion to quash. See Hardman v. State, 614 S.W.2d 123 (Tex.Cr.App.1981).

The judgment of the trial court is reversed, and the motion to revoke probation and to adjudicate appellant’s guilt is dismissed.


text:
    Arturo RIVERA, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-378-CR.
    Court of Appeals of Texas, Corpus Christi.
    Feb. 28, 1985.

      Armando Reyna, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
    Before NYE, C.J., and BENAVIDES and DORSEY, JJ.
   OPINION

BENAVIDES, Justice.

Appellant pled guilty to the offense of delivery of cocaine and was sentenced to ten years in the Texas Department of Corrections. Appellant was placed on probation for ten years. On July 31, 1984, the State filed a motion to revoke probation alleging the violation of five probationary conditions. Appellant pled true to each violation. The trial court revoked probation and sentenced appellant to ten years in the Texas Department of Corrections.

Appellant raises three grounds of error, attacking the sufficiency of the evidence to support the alleged violations, and one ground of error concerning “excessive verbiage” in the motion to revoke. We will not address appellant’s grounds of error individually, as one probation violation will support the trial court’s order to revoke, Sanchez v. State, 603 S.W.2d 869 (Tex. Crim.App.1980), and a plea of “true,” standing alone, is sufficient to support revocation. Cole v. State, 578 S.W.2d 127 (Tex.Crim.App.1979). We, therefore, find that the appellant’s five pleas of true to the violations are sufficient to support the trial court’s order. Appellant’s first three grounds of error are overruled.

Appellant’s fourth ground of error concerning excess verbiage in the motion to revoke is also without merit. Even were we to agree that the motion contained excess verbiage, such a finding would have no impact upon the sufficiency of the evidence to support the trial court’s order.

Appellant’s fourth ground of error is overruled.

The judgment of the trial court is affirmed.


author: COUNTISS, Justice.

text:
    Mike Edward SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 07-83-0031-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 28, 1985.

      Gene Storrs, Storrs & Stokes, Amarillo, for appellant.
    Randall Sherrod, Dist. Atty., John L. Davis, Asst. Dist. Atty., Canyon, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   COUNTISS, Justice.

Appellant was convicted of murder, Tex. Penal Code Ann. § 19.02 (Vernon 1974), and sentenced to 45 years in the penitentiary. He contends, by one ground of error, that his confession was the inadmissible product of an illegal arrest. We affirm.

In the early morning hours of June 20, 1981, an Amarillo motorist discovered a badly beaten body lying in the 58th Street roadway. Deputy Sheriff Joel Richardson of the Randall County Sheriff’s Department was one of the officers dispatched to the scene. The decedent, Manual Andy Jimenez, had apparently been stripped of identification, but Richardson learned his name and address from fingerprint comparisons. Richardson went to the address and notified the family of the death. During their conversation, Jimenez’ father pointed out his son’s car, parked down the street in front of appellant’s residence.

Richardson and another officer briefly looked over Jimenez’ car and Richardson noticed a shoe print near the car similar to one he had seen near the body. At that point Richardson, believing someone in the house may have been at the crime scene, went to the house, where he was invited inside by appellant’s sister, who was also decedent’s wife.'

Once inside, the officers advised Mrs. Jimenez of her husband’s death and asked if she knew where her husband had been on the preceding night. She told the officers that he had been with appellant and another brother, Martin Salazar. At some point unclear in the record, Mrs. Jimenez invited the officers into her brothers’ presence.

The officers, who admitted that the Salazar brothers would not have been allowed to leave after Mrs. Jimenez’ statement, asked the brothers to step out onto the front porch. Deputy Richardson said the brothers voluntarily accompanied them.

On the porch, the officers noticed apparent bloodstains on the brothers’ pants and shoes. At that point, they gave the Miranda warnings and Richardson asked Martin Salazar if he could inspect the soles of his tennis shoes. Martin complied and Richardson observed that the soles were similar to the shoe prints near the car and at the crime scene. The officers then told appellant and his brother that they were under arrest for investigation of homicide. A short time later, appellant confessed that he and his brother had beaten Jimenez to death with a tire bumper.

Appellant contends his confession is the inadmissible product of an illegal arrest. Specifically, appellant says the officers had neither probable cause to arrest him nor facts justifying a warrantless arrest. We do not agree.

We begin with the principle that law enforcement officers have the right to detain a person for questioning in a criminal investigation, if the detention is (1) based upon reasonable suspicion, and (2) limited in time and obtrusiveness of the detention and in scope of the investigation. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580-81, 45 L.Ed.2d 607 (1975); Ussery v. State, 651 S.W.2d 767, 770 (Tex.Crim.App.1983). Here, by the time the officers asked the brothers to step outside, they had observed the decedent’s car in front of the house, and had seen a shoe print similar to one observed near the body. They also knew the brothers had been with the decedent the previous evening, and they knew the decedent had been beaten and was bloody. Certainly those facts gave the officers a reasonable basis to suspect that appellant and his brother were connected with the commission of the crime, Ussery, supra, and were sufficient “for temporarily detaining [the defendants] while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention.” Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229, 239 (1983).

After the brothers stepped outside, the officers could observe their bloody clothing and the similarity of the twice-observed shoe print and the print on Martin Salazar’s shoe. When that information was combined with the other information possessed by the officers, they clearly had probable cause to arrest appellant. Milton v. State, 549 S.W.2d 190, 194 (Tex.Crim. App.1977).

The second requirement of Brigno-ni-Ponce was also satisfied, because the investigative detention lasted only a short time, was not obtrusive and was confined to the single issue being pursued by the officers.

Appellant points out, however, that the only pertinent Texas statute justifying a warrantless arrest is article 14.04 of the Code of Criminal Procedure Annotated (Vernon 1977), which permits a warrantless arrest as follows:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.

There is no evidence, says appellant, that (1) the officers had satisfactory proof, (2) the persons directing the officers to appellant were credible persons, or (3) he was about to escape.

Satisfactory proof under article 14.04 is the equivalent of probable cause. Earley v. State, 635 S.W.2d 528, 531 (Tex. Crim.App.1982). It may be based on a combination of information from others and observations of the officer. Walker v. State, 555 S.W.2d 454, 456 (Tex.Crim.App. 1977). As discussed above, the officers had facts within their knowledge amounting to probable cause, and this information was also satisfactory proof under the article.

Credible persons, as used in the context of article 14.04, does not mean unnamed confidential informants who must satisfy one of the eclectic rules constructed by the U.S. Supreme Court. Rather, it means ordinary citizens relating information of which they had direct knowledge. Esco v. State, 668 S.W.2d 358, 360-61 (Tex. Crim.App.1982); Mena v. State, 504 S.W.2d 410, 413 (Tex.Crim.App.1974); Frazier v. State, 480 S.W.2d 375, 378-80 (Tex.Crim. App.1972). That is the role played by the decedent’s relatives, who directed the officers to appellant’s house, and the officers were entitled to rely upon their representations when approaching appellant.

Finally, in Guzman v. State, 521 S.W.2d 267 (Tex.Crim.App.1975) and Trammell v. State, 445 S.W.2d 190 (Tex.Crim.App.1969) the Court of Criminal Appeals found war-rantless arrests to be permissible under article 14.04, where defendants were arrested under facts comparable to those present here, even though the officers did not expressly recite into the record their fear that the defendants might flee if left alone while a warrant was sought. The Austin Court of Appeals put the matter into proper perspective when it observed, in Hollomon v. State, 633 S.W.2d 939, 943 (Tex.App. — Austin 1982, pet. ref’d):

The fact that the Rangers did not have a warrant for appellant’s arrest is immaterial, as it cannot be seriously argued that the officers should have been required to leave a person who has confessed to a homicide to obtain a warrant with the delusive hope that the person would wait about for their return.

Here, appellant and his brother were wearing vital evidence and were surrounded by incriminating circumstances. There was a reasonable basis for believing they had brutally beaten a man to death and stripped him of all papers in order to delay identification. Additionally, we know they had access to vehicles for flight. Under those circumstances, and knowing they were prime suspects, only an incurable optimist would conclude that the brothers Salazar were not “about to escape” if the officers left to seek a warrant. While it would have been helpful if the officers had stated their concern in that regard, we do not think we are limited to consideration of an oral recitation of that fact; we can also look at the rest of the record and determine from all of the facts and circumstances whether such a danger existed. Clearly it did here. Appellant’s ground of error is overruled.

The judgment is affirmed.

REYNOLDS, C.J., not participating.


author: McCLUNG, Justice.

text:
    Claude Lynn MEDLOCK, Appellant, v. The STATE of Texas, Appellee.
    No. 05-84-00924-CR.
    Court of Appeals of Texas, Dallas.
    March 6, 1985.
    Rehearing Denied April 4, 1985.
    Russ Henrichs, Dallas, for appellant.
    Tom Streeter, Asst. Dist. Atty., Dallas, for appellee.
    Before AKIN, MALONEY and MCCLUNG, JJ.
   McCLUNG, Justice.

An order revoking probation was entered against appellant, Claude Lynn Medlock, based on the court’s findings that he violated the terms and conditions of his probation by failing to report monthly to the probation officer, failing to pay a probation fee of $15.00 per month, and failing to make monthly restitution payments for court-appointed attorney’s fees. Punishment was assessed at five years’ confinement in the Texas Department of Corrections. We affirm the trial court’s order revoking probation.

In his sole ground of error, appellant contends that the trial court abused its discretion in revoking probation because he raised the affirmative defense of his inability to pay the fees and he showed that he was unable to report due to a lack of transportation. We disagree with appellant’s contention.

The current version of TEX. CODE CRIM.PROC.ANN. art. 42.12 § 8(c) (Vernon Supp.1985) provides as follows:

(c) In a probation revocation hearing at which it is alleged only that the probationer violated the conditions of probation by failing to pay compensation to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence (emphasis added).

In Jones v. State, 589 S.W.2d 419 (Tex.Crim.App.1979), a case decided while two versions of section 8(c) were in effect, the Court of Criminal Appeals held that the inability to pay the enumerated fees is an affirmative defense to be proved by a preponderance of the evidence. However, in 1981 the Legislature repealed the version that did not include the word “only.” That action indicates the Legislature’s intention to limit the requirement of raising inability to pay as an affirmative defense to cases where failure to pay fees is the sole ground alleged in a motion for revocation. As a result of the repeal, section 8(e) does not address the situation in the case before us where failure to pay fees plus other grounds are alleged. We agree with the holding in Stanfield v. State, 638 S.W.2d 127 (Tex.App. — Fort Worth 1982, pet. granted) that where an additional ground is alleged, the State must prove the probationer’s ability to pay and that his failure to pay was intentional in accordance with the general rule stated in Curtis v. State, 548 S.W.2d 57 (Tex.Crim.App.1977). Stanfield, 638 S.W.2d at 129. In other words, inability to pay is not an affirmative defense under those circumstances.

A review of the record discloses that the State did not meet its burden of proving appellant’s ability to pay fees and that his failure to pay was intentional. However, as discussed in the remainder of this opinion, the State did carry its burden of proving that appellant failed to report to his probation officer. Accordingly, one of the alleged violations was proven and is sufficient to support the order of revocation. Moses v. State, 590 S.W.2d 469, 470 (Tex.Crim.App.1979).

The trial court did not abuse its discretion in finding that appellant failed to .report to his probation officer. Appellant did not deny his failure to report. His only response to the testimony of his probation officers that he did not report was that he lacked transportation. However, appellant also testified that on one occasion he had walked to the probation office, that if he paid for gas a friend would have taken him to report, and that if his probation was continued he would walk or obtain transportation so that he could report as required. Similar testimony was sufficient to support a finding that the probationer violated the condition of reporting to his probation officer in Valdez v. State, 508 S.W.2d 842 (Tex.Crim.App.1974). Accordingly, we find no abuse of discretion.

The order of the trial court revoking probation is affirmed.

      . The 1977 amendments to section 8 added two sections 8(c). The two sections read as follows:
      (c) In a probation revocation hearing at which it is alleged only that the probationer violated the conditions of probation by failing to pay probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.
      (c) In a probation revocation hearing at which it is alleged that the probationer violated the conditions of probation by failing to pay compensation paid to appointed counsel, probation fees, court costs, restitution, or reparations, the inability of the probationer to pay as ordered by the court is an affirmative defense to revocation, which the probationer must prove by a preponderance of evidence.