text:
    JIM WALTER HOMES, INC., Appellant, v. Ramon GONZALEZ, Appellee.
    No. 04-83-00342-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.
    Rehearing Denied March 15, 1985.

      Thomas 0. Matlock, Jr., Atlas & Hall, McAllen, for appellant.
    John C. Mullen, Alice, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

TIJERINA, Justice.

This case concerns alleged violations of the Texas Deceptive Trade Practices — Consumer Protection Act, TEX.BUS. & COM. CODE ANN. § 17.41, et seq., for defective construction of a house. The jury verdict, based on special issues, awarded appellee treble damages in the sum of $18,000.00; the court entered judgment accordingly.

The record indicates that appellee visited appellant’s business premises and expressed an interest in buying a house. While there he saw their sample house and was shown pictures of other Jim Walter homes. Appellee selected from the photographs the model labeled “President” as the house he wanted constructed. Appellant thereafter contracted to build for ap-pellee a ninety percent (90%) completed residential home. After the house was completed appellee discovered structural defects, including defects in the siding, floors, and roof.

Appellant initially complains that the trial court erroneously refused to submit to the jury his requested special issue on an alternate measure of damages: the difference between the value of the house as promised and as delivered. Specifically appellant wants the damages ascertained by “diminution in market value.” Under the Deceptive Trade Practices Act, “actual damages are those recoverable at the common law.” Rotello v. Ring Around Products, Inc., 614 S.W.2d 455, 460 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref’d n.r.e.). In cases concerning defective construction issues, Texas courts generally allow damages based on cost of repairs if repairs are feasible and do not involve economic waste. Greene v. Bearden Enterprises, Inc., 598 S.W.2d 649, 652 (Tex.Civ.App. — Port Worth 1980, writ ref’d n.r.e.). If the repair of the defects requires that the structure in whole or in material part be changed or would impair the structure as a whole, the proper measure of damages would be the difference in value of the structure as constructed and its value had it been constructed without defects. Hutson v. Chambless, 157 Tex. 193, 196-97, 300 S.W.2d 943, 945 (1957). However, where the repair of defects will not impair the structure as a whole, the remedial cost is the correct measure of damages. Rogowicz v. Taylor & Gray, Inc., 498 S.W.2d 352, 354 (Tex.Civ.App. — Tyler 1973, writ ref’d n.r.e.). More recently, the supreme court addressed this precise question in Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 164 (Tex.1982), and declared that the remedial measure of contract damages applies only when the contractor has substantially complied with the contract; the difference in value measure is applicable where there has not been substantial compliance.

In this case, the record evidence establishes that appellant substantially complied with the contract. Appellee’s house was constructed and completed for a total cost of $39,870.00. Robert Koimm, an architect, testified that all the defects could be repaired for a low of $9,889.00 and a high of $11,435.00, which was a fraction of the cost. Appellant’s expert witness gave a lower estimate. The jury found that the sum of $5,000.00 was the reasonable cost of repairs necessary to restore the house to the condition it was represented to be in. There was no issue requested or submitted on substantial compliance; however, appellant neither objected to the omitted issue nor requested findings on it. “Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived.” TEX.R.CIV.P. 279. Presumed findings provisions of this rule provide that if no written findings are made, omitted issues are deemed to have been found by the court in such manner as to support the judgment. Harmes v. Arklatex Corp., 615 S.W.2d 177, 179 (Tex.1981). Additionally, the record in this case reflects that the repairs of the defects were feasible without impairing the structure in whole or in part and without incurring unreasonable expenses. Point of error one is overruled.

Secondly, appellant complains that there was no evidence, or insufficient evidence, that the representations were knowingly made. The standard for reviewing a no evidence point requires that we consider only the evidence favorable to the judgment and must sustain the judgment if there is evidence of probative force to support it. Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 191 (Tex.1980); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In determining a question on the sufficiency of the evidence, we consider and weigh all the evidence in the case and set aside the judgment only if we conclude that it is clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 665, 244 S.W.2d 660, 661 (1951).

A knowing misrepresentation is one made with actual awareness of the falsity, and “actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.” TEX.BUS. & COM.CODE ANN. § 17.45(9) (Vernon Supp.1985). In this case, appellant represented by contract that they would build, construct, and complete the house in question in a good, substantial, and workmanlike manner. Appel-lee’s expert testified as to numerous incidents of substandard building materials and procedures used by appellant in violation of the Southern Building Standards Code. The Code sets out the minimum requirements for building construction. Appellee’s expert witness testified that “any tradesman involved in building construction ... should be very familiar with these standards.” A knowledge of industry standards as codified can be imputed to appellant, who is in the business of building houses.

This case was predicated on DTPA § 17.46(b)(7) which provides, viz:

(B) [T]he térm ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.

It appears that the material misrepresentations made by appellant in the mechanic’s lien contract were in violation of this section of the DTPA. See Jim Walter Homes, Inc. v. Chapa, 614 S.W.2d 838, 841-42 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r.e.). The same representations made in Chapa, supra, were made in the case at bar, i.e., “that the home would be built in a good, substantial, and workmanlike manner.” In Jim Walter Homes, Inc. v. Geffert, 614 S.W.2d 843, 844-45 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r. e.), the court approved an award under the DTPA where the expert witness agreed that the construction of the house did not comply with local building codes. It is the prerogative of the fact finder to resolve any contradictions or inconsistencies in the testimony and to judge the credibility of the witnesses and the weight to be given their testimony. Johnson v. Buck, 540 S.W.2d 393, 401 (Tex.Civ.App. — Corpus Christi 1976, writ ref'd n.r.e.). As a general rule, a fact finder has implied findings power, and can make reasonable inferences and deductions from the direct or circumstantial evidence. Harrison v. Harrison, 597 S.W.2d 477, 485 (Tex.Civ.App. — Tyler 1980, writ ref d n.r.e.).

Thus, we find sufficient probative evidence of knowing misrepresentation to support the jury findings and the judgment. Having reviewed the entire record, we conclude that the judgment is not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Point of error two is overruled.

Lastly, appellant contends that the trial court erroneously awarded total damages in excess of three times the actual damages. Appellant’s argument is without merit. Under amended § 17.50(b)(1), more than treble damages in a DTPA action is possible. Jim Walters Homes, Inc. v. Valencia, 679 S.W.2d 29 (Tex.App. — Corpus Christi, 1984); D. BRAGG, P. MAXWELL & J. LONGLEY, TEXAS CONSUMER LITIGATION § 8.05 (2d ed. 1983). Section 17.50(b)(1), as amended effective August 27, 1979, provides in pertinent part, viz:

[E]ach consumer who prevails may obtain ... the amount of actual damages found by the trier of fact. In addition the court shall award two times that portion of the actual damages that does not exceed $1,000.00. If the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of $1,000.00.

The jury in the instant case found that actual damages were $5,000.00, and that the conduct of appellant was committed knowingly. For special issue number five, they were told: “You are further instructed that you may not award more than three times the amount of actual damages in excess of $1,000.00.” The jury awarded the sum of $11,000.00. The jury was authorized to treble the amount of actual damages that exceeded $1,000.00 which in this case would total to $12,000.00. The jury, however, in its discretion, awarded a lesser amount.

Thus it appears that appellee was awarded an amount less than the maximum award recoverable pursuant to § 17.-50(b)(1), supra. The third point of error is overruled.

The judgment is affirmed.

CADENA, Chief Justice,

dissenting in part.

Appellant’s complaint that the evidence does not support the award of treble damages is justified.

The actual damage suffered by appellee was $5,000.00. Under § 17.50(b)(1) of DTPA, appellee was entitled to receive an additional award of $2,000.00 (twice that portion of actual damages not exceeding $1,000.00), for a total award of $7,000.00.

In order to be entitled to an award of “three times the amount of actual damages,” appellee had the burden of proving that appellant’s conduct was committed “knowingly.” The majority opinion refers to no testimony which even suggests that the representations were made with knowledge of their falsity.

The fact that actual awareness of falsity may be inferred where “objective manifestations indicate that a person acted with actual awareness,” is, of course, true. But it is irrelevant in a case where, as here, there is no evidence of “objective manifestations” indicating such awareness. See Mann v. Fitzhugh-Straus Medina Ranch, 640 S.W.2d 367 (Tex.App. — San Antonio 1982, no writ).

There can be no question that it was represented that the house would be of a particular standard, quality or grade. The jury found that this representation was, in fact, false. But proof of a false, misleading or deceptive representation is not evidence that the representation was made with awareness that it was false, misleading or deceptive.

The majority opinion recites: “Thus, we find sufficient probative evidence of knowing misrepresentation to support the jury findings and the judgment.” The only evidence set out in the opinion is that which shows that appellant represented that the house would be built in a good, substantial and workmanlike manner, that appellee relied on such representation, and that the house was not built in a good, substantial and workmanlike manner.

Since the fact that a representation proved to be false is no evidence that it was made with knowledge of its falsity, there is no evidence to support the finding of a knowing misrepresentation.

Since appellee proved only a right to recover $7,000.00, the award of $18,000.00 was clearly error.


source: Caselaw Access Project

author: BUTTS, Justice.

license: Public Domain

text:
    Coy CLIFTON, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-00597-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.

      Richard Langlois, San Antonio, for appellant.
    Sam Millsap, Jr., Emil Holiner, Edward F. Shaughnessy, III, San Antonio, for ap-pellee.
    Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.
   OPINION

BUTTS, Justice.

This is an appeal from a conviction for the offense of forgery, TEX.PENAL CODE ANN. § 32.21(a)(1)(B) (Vernon 1974). After a finding of guilty by the jury, appellant entered his plea of “true” to an enhancement allegation in the indictment, and the trial court assessed punishment at five years imprisonment.

Appellant presents five grounds of error, the first challenging the sufficiency of the evidence to support the conviction and four attacking the court’s admission of certain photographs of appellant into evidence.

The indictment provides in pertinent part:

... on or about the 22nd day of June, 1983, [appellant] did then and their knowingly and intentionally with intent to defraud and harm another, PASS TO LISA BAKER a WRITING NAMELY: A CHECK that had been MADE so that it purported to be the act of another who did not authorize the act, and the said defendant knew said CHECK was forged and which said CHECK is to the tenor following:
[Attached is the cheek which is the subject of this conviction.]
* ⅝: sfc ⅝ sjs sfc

The forgery statute encompasses many kinds of forgery. See Commentary following statute. Forgery by passing is but one kind of forgery, § 32.21(a)(1)(B). This is the offense charged against appellant which the State was bound to prove. The State relied upon the “parties” statutes, TEX.PENAL CODE ANN. §§ 7.01 and 7.02(a)(2) (Vernon 1974). It had the burden to show that appellant was criminally responsible for the conduct of another, and the trial court charged the jury on the requisites of proof necessary to find criminal responsibility as a party to the offense of forgery by passing. See Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978). It is not appellant’s contention that the criminal responsibility (parties) statutes are inapplicable in forgery cases. Rather he argues that proof in this case showed only that he was merely present when the offense was committed by another person.

To sustain the conviction for passing a forged check there must be proof that the check was forged. Section 32.-21(a)(1)(B). To prove that a check is forged it is necessary to prove that the purported maker did not authorize the defendant or another to make the check. Section 32.-21(a)(l)(A)(i). Payne v. State, 567 S.W.2d 4, 5 (Tex.Crim.App.1978), citing Reed v. State, 533 S.W.2d 35 (Tex.Crim.App.1976). (The required element of knowledge is not an issue in this case.)

In deciding whether there is sufficient evidence to sustain a conviction, this court must review the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bonham v. State, 680 S.W.2d 815, 819 (Tex.Crim.App.1984); Acevedo v. State, 633 5.W.2d 856, 857 (Tex.Crim.App.1982). In this case the State presented the testimony of Minerva Mendez, a co-defendant who was an accomplice as a matter of law, and the jury was so instructed.

It is required by TEX.CODE CRIM.PROC.ANN. art. 38.14 (Vernon 1979) that an accomplice witness’ testimony be corroborated. The test to determine if there has been sufficient corroboration of that testimony is to eliminate the accomplice testimony from consideration, and if there is other incriminating evidence tending to connect the accused to the commission of the offense, there is sufficient corroboration. Hernandez v. State, 578 S.W.2d 731, 732 (Tex.Crim.App.1979); see also Infante v. State, 612 S.W.2d 603, 605 (Tex.Crim.App.1981); Sheets v. State, 606 S.W.2d 864, 866 (Tex.Crim.App.1980). The corroborative testimony need not directly link the accused to the crime or be sufficient in itself to establish guilt; corroboration need only make the accomplice’s testimony more likely than not. Carrillo v. State, 591 S.W.2d 876, 883 (Tex.Crim.App.1979). McManus v. State, 591 S.W.2d 505, 513-514 (Tex.Crim.App.1979). The evidence of other witnesses is examined to ascertain if there is any inculpatory evidence which tends to connect the accused with the commission of the offense. In-fante, supra at 605. The corroborating evidence may be circumstantial or direct. Paulus v. State, 633 S.W.2d 827, 843 (Tex.Crim.App.1981). It is not necessary that the corroborating evidence directly link the accused to the crime or be sufficient in itself to establish guilt. Id.

Lisa Baker, a cashier at the Consumers Commissary in Leon Valley, testified that Minerva Mendez on June 22, 1983, attempted to purchase two cases of cigarettes costing $456.12. She saw her write a check; however, the manager refused to cash it. Mendez signed the check “Frances Gorm-ley.” Baker stated she did not see appellant in the store. The check written for that amount is the subject check in this case.

Frances Gormley testified that in June her purse was stolen. Among its contents were a checkbook, the subject check that Mendez had, a Consumers Commissary identification card, her social security card, and her driver’s license. She stated she did not sign the subject check, nor did she authorize anyone to do so. Further she did not write the check nor give anyone permission to do so.

Mendez, the co-defendant and accomplice witness, said she met appellant, his wife and Richard Meyers in a parking lot at her “connection’s” house. The appellant advised her the others made money by making checks, and she could do the same. Needing money for a “fix,” Mendez, admittedly a long-time heroin addict, telephoned appellant on the morning of June 22, telling him she was without funds. He directed her to his house. She related that after she had bought some heroin with appellant’s money, the appellant tacked up “like a bedsheet ... light blue” and took several pictures of her. One of those Polaroid pictures of her was in evidence. Then, she continued, the appellant cut one of her pictures “real small.” On the kitchen counter he had “all kinds of stuff,” such as a driver’s license from which he extracted the official photograph and put in the one he had just taken. Then he “glued” it back together. Appellant gave her the driver’s license, social security card and three checks, all belonging to Frances Gormley. He inquired whether she knew how to make out a check.

Her testimony was that she saw appellant use “machines” to “cut out” other checks, making them from “scratch.” Some of these checks were recovered from a briefcase by investigating officers. Mendez related that appellant drove her, his wife, and Meyers in his automobile to a Consumers Commissary in south Bexar County and then to the same kind of store on Broadway. At each of these she and appellant went inside, although separately. He watched her while she passed two checks, purchasing at each store two cases of cigarettes. She testified that at the third store in Leon Valley he also went into the store, and when the manager refused to cash the check, she took the check and left hurriedly. She said the appellant passed her and told her to keep walking. She walked to the corner, while he got into his automobile and “took off.” He circled in the car and came back to pick her up. They had driven about one-half block when apprehended by an officer.

Mendez admitted she had been twice convicted for forgery and had convictions for theft and shoplifting. She told the jury she was going to enter a guilty plea in this case and be sentenced according to the terms of a plea bargain.

Leon Valley police officer John Anderson testified he responded to a police dispatch regarding a suspected forgery. He received a description of the automobile and occupants and almost immediately saw the car which matched the description. Appellant and his wife were in the front seat, and Meyers and Mendez in the back seat with a briefcase also in back. He arrested all of them and impounded the car. It was later established that appellant owned it. Appellant disclaimed ownership of the briefcase.

Police officer Robert De La Garza assisted by taking fingerprints from the briefcase and its contents. One of the items found in the briefcase was a checkbook belonging to Frances Gormley. There was a purported Lone Star Brewery payroll check, dated June 17, 1983, in the sum of $348.00 the payee being Frances Gormley. There was evidence that Detective Cruz Morua found appellant’s fingerprints on documents and checks located in the briefcase. Five of these items, including the Lone Star Brewery check, were admitted into evidence. Significantly the fingerprints of Mendez, Meyers and appellant’s wife were not found on the documents. Morua also identified appellant’s fingerprint on Gormley’s checkbook.

Meyers claimed the briefcase as his own. He also stated he was the perpetrator of the instant offense, not appellant. He said he instructed Mendez and gave her the checks. Appellant and his wife, he said, were simply driving him to the commissary stores because he asked for the favor; he said that the couple planned to go sightseeing that day.

The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Bonham v. State, supra at 819; Daniels v. State, 600 S.W.2d 813, 815 (Tex.Crim.App.1980).

Eliminating the testimony of the accomplice witness, we examine the remaining evidence which may tend to connect the appellant to the commission of the offense:

1. Appellant’s fingerprint found on Gormley’s checkbook, which was in the recovered briefcase.

2. Appellant’s fingerprints found on Lone Star Brewery check with Gormley’s name as payee on it—also taken from briefcase.

3. Other checks and documents had his fingerprints on them—also taken from briefcase.

4. Meyer’s fingerprints were not found on the checks and documents retrieved from the briefcase.

5. Mendez’ polaroid picture, as described by her, recovered from briefcase.

6. Appellant, driver of his own automobile, arrested within minutes of the commission of the offense with Mendez, fleeing the scene.

We find the inculpatory evidence does tend to connect appellant with the commission of the offense. When, as here, the evidence tends to connect appellant with the alleged offense, it is sufficient to corroborate the accomplice witness’ testimony.

In determining whether one participated as a party in committing an offense, the court may look to events occurring before, during and after the offense and reliance may be placed on actions of the parties which show an understanding and common design to do a certain act. Tarpley v. State, 565 S.W.2d 525, 529 (Tex.Crim.App.1978); see also Wygal v. State, 555 S.W.2d 465, 469 (Tex.Crim.App.1977).

Now considering all of the evidence presented, including that of the accomplice witness, we find the evidence is sufficient to sustain appellant’s conviction as a party to the offense. It is plain that the jury chose to believe Mendez and to disbelieve Meyers, and that is their prerogative. If there is evidence which establishes guilt beyond a reasonable doubt, and the trier of fact believes that evidence, this court is not in a position to reverse the judgment on sufficiency of the evidence grounds. Combs v. State, 643 S.W.2d 709, 716 (Tex.Crim.App.1982). The first ground of error is overruled.

Appellant contends four polaroid photographs of appellant should not have been admitted into evidence, asserting their admission was error because a collateral fact was sought to be established by them. The photographs are close-ups of appellant. Upon comparison to Mendez’ photograph it is apparent they are the same kind with the same background.

Meyers accepted the blame for the offense, stating that all of the items in the briefcase belonged to him, including the four photographs of appellant. He affirmed they were taken with the blue sheet as background, but he said he photographed appellant without any criminal plan in mind. He did not intend to use the pictures for identification purposes. He insisted that appellant had not committed the offense but that he, Meyers had. He insisted that appellant was innocent.

The trial court admitted into evidence the four polaroid pictures of appellant, taken against the blue sheet background, for the limited purpose of impeachment of Meyers. Appellant’s objection to the admission contained as one base lack of relevancy. On appeal he calls the pictures “collateral” to any issue. We believe this to be a relevancy or materiality argument on appeal and do not agree with the State that appellant waived objection to their admission.

On cross-examination Meyers testified that appellant was not aware of any of the check forging activities and further, was not present when Meyers took Polaroid pictures for use in stolen identification documents, such as driver’s licenses. Whether or not appellant participated as a party to the instant offense was a material, not a collateral issue, in the trial. See Shipman v. State, 604 S.W.2d 182, 184 (Tex.Crim.App.1980). Thus, it was the testimony of Meyers regarding appellant’s non-participation in the forgery “business” that the State sought to impeach. We find the evidence of the four photos to be material to the issue of a scheme to pass forged checks by the appellant. When Meyers denied that appellant owned the briefcase containing items used in forgeries, and also testified that appellant was ignorant of any of the forgery activities and that he, Meyers, took Mendez’ pictures, the witness Meyers could be properly cross-examined about the four pictures of appellant in an effort to impeach his stance that appellant was not involved in any manner with the forgery activities. The jury could then judge the credibility of the witness. We hold the admission of the photographs was not error because they were probative of the witness’ credibility in this case. While it is settled that a witness may not be impeached on immaterial and collateral matters, McManus v. State, 591 S.W.2d 505, 524 (Tex.Crim.App.1979), the photographs were not an immaterial and collateral matter. We overrule the four grounds of error.

This court, upon examination of the judgment in this case, has found that the correct recitation of the verdict does appear, that is, that appellant was found “guilty of the offense of forgery as charged in the indictment.” However, the judgment of the court recites that appellant is “guilty of the offense of forgery by possessing ...” The indictment charged appellant with the offense of forgery by passing; the jury found he committed that offense. This is a clerical error which is subject to reformation. Where, as in this case, the court has the necessary data and evidence before it for reformation, the judgment and sentence may be reformed on appeal. Joles v. State, 563 S.W.2d 619, 622 (Tex.Crim.App.1978); accord Knight v. State, 581 S.W.2d 692, 694 (Tex.Crim.App.1979). Accordingly, the judgment is reformed to state “forgery by passing.”

The judgment is affirmed as reformed.

      . The driver’s license of Frances Gormley, admitted in evidence, contains no photograph; the space for a photograph is empty. Mendez stated that when she was placed in the back seat of the police car, she removed her polaroid picture from Gormley's license and ate it. Further she hid the incriminating identification cards under the back seat. That evidence was recovered later.


author: CANTU, Justice. TIJERINA, Justice,

text:
    Rural M. MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 04-84-00007-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.

      Gregory W. Canfield, San Antonio, for appellant.
    Sam Millsap, Jr., Mary Esther Hernandez, Charles Estee, San Antonio, for appel-lee.
    Before CANTU, TIJERINA and DIAL, JJ.
   OPINION

CANTU, Justice.

Appellant was convicted upon a plea to guilty of the misdemeanor offense of possession of marihuana, two ounces or less. In keeping with a plea bargain agreement the trial court assessed punishment at confinement for one day and a fine of one hundred dollars ($100.00).

Appellant’s sole ground of error on appeal stems from the overruling of his motion to suppress disposed of by adverse ruling prior to the entry of his guilty plea. See TEX.CODE CRIM.PROC.ANN. art. 44.02.

The sole contention raised on appeal alleges trial court error in the overruling of his motion to suppress because the arresting officer allegedly did not have probable cause upon which to base a search or an investigative stop. We overrule the contention and affirm the judgment of the trial court.

On September 7, 1983, officer James McCourt of the Universal City Police Department while on routine patrol, at about 4:45 A.M., observed a parked pickup truck in the parking lot of a Universal City H.E.B. grocery store. Both doors of the truck were open and no one was visibly attending to the vehicle. McCourt considered this strange considering the time. Only one car appeared to be parked in the vicinity of the truck.

The officer was aware that a rash of car burglaries had occurred at that grocery store parking lot a week or two prior and believing that a burglary of the pickup truck was in progress decided to investigate.

McCourt parked his vehicle to the left rear of the truck, got out and walked toward the driver’s side of the truck. He then noticed legs sticking out of the driver’s side entrance to the vehicle. As he approached the truck, appellant got out.

McCourt then inquired of appellant as to what was going on while at the same time looking into the open vehicle in search of possible weapons. The glove compartment was open, and McCourt observed a clear plastic baggie containing a green substance that he believed to be marihuana.

At that very moment appellant instructed another individual in the truck to shut the glove compartment, and the individual, later identified as Dwayne Wilson, complied with the request.

Appellant and Wilson were then asked to step away from the truck as McCourt reached toward the glove compartment. Appellant attempted to prevent the opening of the compartment by insisting that the opening of the compartment would constitute an illegal search.

McCourt, nevertheless, opened the compartment and retrieved the plastic baggie containing the suspected marihuana. Based upon his prior experience as a police officer, McCourt knew that plastic baggies are commonly used to package and carry marihuana. At the very time appellant instructed Wilson to shut the glove compartment, McCourt believed the contents of the baggie to be marihuana.

Appellant and his companion Wilson both testified. Their version of the incident placed McCourt in possession of a flashlight as he approached the truck. McCourt did not remember whether or not he possessed and used a flashlight at the time.

According to appellant McCourt conducted a search of the truck interior with his flashlight and by leaning into the interior.

Appellant argues on appeal that the seizure was unlawful because the plain view exception to warrantless searches and seizures was inapplicable. This argument is based upon two contentions; that there was an insufficient basis to support McCourt’s conclusion that the substance seen in the baggie was contraband and that McCourt was not legitimately in a position to view the contraband.

The first contention finds reliance upon McCourt’s admission that although he could tell the contents of the baggie was a green substance, he was not positive that it was marihuana and could have been alfalfa.

The second contention finds reliance in appellant’s characterization of the investigation as a stop and detention. Neither contention is premised upon a correct assessment of the record.

Appellant’s first contention was rejected in Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983).

The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable assuming that there is probable cause to associate the property with criminal activity. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), that is to say, plain view is but an extension of whatever the prior justification for an officer’s access to an object may be. Texas v. Brown, 460 U.S. at 736, 103 S.Ct. at 1540, 75 L.Ed.2d at 511.

Information obtained as a result of observation of an object in plain sight may be the basis for probable cause or reasonable suspicion of illegal activity. Thus, if while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object they may seize it immediately. Texas v. Brown, 460 U.S. at 736, 103 S.Ct. at 1540, 75 L.Ed.2d at 511-512.

We observe initially that a stop is not involved nor did a detention precede the plain view of the contraband.

Appellant’s vehicle was already stopped and parked in an area accessible to the public in general. That being the case, McCourt had the same right as did anyone on the premises to view that which appellant deliberately placed in plain view. Appellant exhibited no legitimate expectation of privacy by his conduct. In short, McCourt’s observation was not a search within the meaning of the Fourth Amendment.

Once having viewed the suspected contraband, it is immaterial that McCourt was not absolutely certain that the contents of the baggie were marihuana.

Probable cause merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief, Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Texas v. Brown, supra.

The evidence thus collected must be seen and weighed not in terms of library analysis by scholars but as understood by those versed in the field of law enforcement. United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981).

McCourt testified that he had seen marihuana twenty to thirty times prior to the instant case and that it was common for marihuana to be rolled up in plastic baggies. Based upon his experiences with contraband and particularly with marihuana, McCourt was justified in believing that the substance was marihuana. Gonzales v. State, 648 S.W.2d 684 (Tex.Crim.App.1983); Miller v. State, 608 S.W.2d 684 (Tex.Crim.App.1980).

McCourt lawfully seized that which he observed in plain view from a position legitimately occupied at the time. Sanchez v. State, 589 S.W.2d 422 (Tex.Crim.App.1979); Berry v. State, 579 S.W.2d 487 (Tex.Crim.App.1979); Legall v. State, 463 S.W.2d 731 (Tex.Crim.App.1971).

Appellant’s sole ground of error is overruled and the judgment of the trial court is affirmed.

TIJERINA, Justice,

dissenting.

I respectfully dissent.

This appeal concerns the search and seizure of evidence from a parked automobile. Appellant filed a pre-trial motion to suppress the evidence and after an evidentiary hearing, the motion was overruled.

The record shows that appellant and his friend Wilson were in a pick-up truck which was parked in the parking lot of an H.E.B. store at 4:45 a.m. The store was open, the parking lot was well lighted and the door on the driver’s side was open. The police officer was on routine patrol, stopped his vehicle and approached appellant’s pick-up from the rear. He stated that he had a “hunch” something was going on; that he thought some one needed help or someone was burglarizing the truck. The officer asked appellant what he was doing and at the same time appellant told Wilson to close the glove compartment. The officer, shining his flashlight into the truck, saw a clear plastic sandwich bag containing a green substance. Appellant and Wilson were ordered to back away from the pickup truck, whereupon the officer searched inside the vehicle and seized the bag and its contents. The police officer on cross-examination admitted the green substance could have been something other than marihuana, such as alfalfa.

A review of the case law in this regard indicates that a suspicious individual may be briefly stopped to determine his identity or to maintain the status quo and considered reasonable in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Hence, a police officer without probable cause to arrest may justify a temporary detention for the purposes of investigation since an investigation is considered to be a lesser intrusion upon the personal security of the individual. Leighton v. State, 544 S.W.2d 394, 397 (Tex.Crim.App.1976). An occupant of an automobile is just as subject to a brief detention or stop as a pedestrian. Shaffer v. State, 562 S.W.2d 853, 854 (Tex.Crim.App.1978). However, the temporary investigative detention must be based on circumstances that distinguish the activity of the detained person from that of any other citizen and made on an objective perception of events rather than the subjective feelings of the officer. Armstrong v. State, 550 S.W.2d 25, 30 (Tex.Crim.App.1977) (on rehearing).

In the instant case the State’s burden was to justify the officer’s investigation of the parked vehicle in accordance with the mandate of the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968):

In order to justify an intrusion, by means of physical force or show of authority, however slight it might be, the officer involved must be able to point to specific and articulable facts which in light of his experience and general knowledge taken together with rational inferences from those facts, reasonably warrant that intrusion.

Mere suspicions or the officer’s “hunch” will not meet the test. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Hull v. State, 613 S.W.2d 735, 738-39 (Tex.Crim.App.1981); Armstrong v. State, supra. The United States Supreme Court has now promulgated the standard for the determination of this question. In United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981), the Court stated: that on consideration of the totality of the circumstances, “the detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Emphasis ours.)

The State does not challenge the inherent issue of whether appellant had a legitimate expectation of privacy to the vehicle and its contents; therefore, we assume that he had such constitutional protection. U.S. CONST, amend. IV; TEX.CONST. art. I, § 9. We now address the question of whether the officer had an objective, particularized basis for suspecting appellant of criminal activity. The parking lot at the H.E.B. store was well lighted. Even considering the lateness of the hour, the fact remains that the store was open for business. Appellant’s wife was inside the store shopping. The truck was properly parked; hence, there were no traffic violations at issue. The officer had no adverse information about appellant or the vehicle. He did not, prior to the intrusion, see the commission of a criminal offense nor was there any evidence of suspicious criminal activity. The justification alleged was that the officer had a hunch and thought someone could be burglarizing the truck. Where the events are as consistent with innocent activity as with criminal activity, a detention based on those events is unlawful. Gearing v. State, No. 906-83 (Tex.Crim.App., July 18, 1984) (not yet reported); Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983); Shaffer v. State, 562 S.W.2d 853, 855 (Tex.Crim.App.1978).

The State argues that the evidence was in plain view and that the seizure of the evidence was therefore lawful. The “Plain View” doctrine permits an officer to seize contraband which he sees in plain sight or open view provided his presence at the scene is lawful. DeLao v. State, 550 S.W.2d 289, 291 (Tex.Crim.App.1977). The requirements of the “Plain View” doctrine were articulated in Coolidge v. New Hampshire, 403 U.S. 443, 468-71, 91 S.Ct. 2022, 2039-41, 29 L.Ed.2d 564 (1971), where the Court prescribed the following test: (1) the officer must make a lawful “initial intrusion”; (2) the evidence must be discovered inadvertently, and (3) it must be immediately apparent that the items seized are evidence of a crime. In Texas v. Brown, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), a divided Supreme Court rendered a plurality decision disagreeing in some respects with Coolidge v. New Hampshire, supra. However, the automobile in Brown was lawfully detained at a license check point when the officer saw in plain view a balloon knotted near the tip. The court stated that a probable cause to associate the evidence with criminal activity was sufficient. Similarly in Razo v. State, 577 S.W.2d 709 (Tex.Crim.App.1979), the officer lawfully stopped defendant’s vehicle for a license check and while in the process of checking the driver’s license detected a strong smell of marijuana. In Isam v. State, 582 S.W.2d 441, 444 (Tex.Crim.App. 1979), appellant stopped his automobile at a traffic light and as the officers approached they smelled marijuana. In the case at bar the officer stopped his patrol car and approached appellant’s vehicle for the purpose of making an investigation. He asked appellant, “What are you doing?” and then looked inside the parked vehicle. At such time the officer did not have a particularized and objective suspicion that appellant was engaged in criminal activity. Therefore, the initial intrusion concededly made on an inarticulable “hunch” was unlawful. Accordingly, I would reverse the judgment and discharge appellant. See Greene v. Massey, 437 U.S. 19, 24, 98 S.Ct. 2151, 2154, 57 L.Ed.2d 15 (1978).

      . The store maintained continuous business hours and was open for business at the time.

      . Both appellant and McCourt agreed that the parking lot was well lighted. Appellant admitted that the interior dome light was on at the time McCourt approached him and insisted that McCourt shined his flashlight into the interior of the truck.

      . Even if an issue of lighting had been made, the use of a flashlight by McCourt would avail appellant of nothing. See United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927).


author:
CADENA, Chief Justice.
      REEVES, Justice,

text:
    ROSS F. MERIWETHER & ASSOCIATES, INC., Appellant, v. Robert E. AULBACH, Appellee.
    No. 04-84-00161-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.

      Cynthia J. Estee, San Antonio, for appellant.
    Diego J. Pena, San Antonio, for appellee.
    Before CADENA, C.J., and BUTTS and REEVES, JJ.
   OPINION

CADENA, Chief Justice.

Plaintiff, Ross F. Meriwether & Associates, Inc., appeals from an order sustaining the special appearance of defendant, Robert E. Aulbach, and dismissing plaintiffs suit in sworn account against Aulbach. We affirm the judgment of the trial court.

Defendant Aulbach is president of Ro-bach, Inc., an Illinois corporation. Plaintiff, a mechanical engineering consulting company, incorporated under the laws of Texas, performed computer services for Robach, Inc., but did not receive full payment. Plaintiff brought this suit on a sworn account against Robach, Inc. and Robert E. Aulbach, in his individual capacity. Both Robach, Inc. and Aulbach filed rule 120a motions for special appearance. The trial court held a hearing and sustained Aulbach’s motion. Robach, Inc. waived its motion and is not a party to this appeal.

Plaintiff claims the evidence is legally and factually insufficient to support the finding that Aulbach is not amenable to the jurisdiction of Texas courts. Meriwether urges that because Aulbach dealt with Meriwether in Texas, he submitted himself to the jurisdiction of Texas courts.

The burden is on the defendant challenging jurisdiction to prove that he is not amenable to process by Texas courts. Smith v. Reynolds, 533 S.W.2d 861, 862 (Tex.Civ.App. — San Antonio 1976, no writ).

Texas authorizes the service of process on foreign corporations and nonresident defendants in TEX.REV.CIV.STAT.ANN. art. 2031b, § 4 (Vernon Supp.1984). Under this statute, a nonresident natural person does business in Texas when he enters “into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State....” See U-Anckor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1235, 55 L.Ed.2d 763 (1978).

Under O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966) a nonresident may be sued in Texas if the cause of action arises from some act done or transaction consummated by him in Texas and the assumption of jurisdiction by a Texas court does not offend traditional concepts of fair play and traditional justice. See International Shoe Co. v. Washington, 326 U.S. 310, 316-20, 66 S.Ct. 154, 158-60, 90 L.Ed. 95 (1945).

An agent is not a party to, nor individually liable on, a contract he enters into on behalf of his principal. It is the principal who enters into the contract. Medical Personnel Pool of Dallas, Inc. v. Seale, 554 S.W.2d 211, 213 (Tex.Civ.App.— Dallas 1977, writ ref'd n.r.e.); Talmadge Tinsley Co. v. Kerr, 541 S.W.2d 207, 208-09 (Tex.Civ.App. — Dallas 1976, writ ref’d n.r.e.). When an agent arrives in Texas to negotiate a contract for his principal, only the principal does business in the state. The agent, having entered into no contract, has done no business in Texas, and, therefore, has done no act nor has he consummated a transaction in Texas.

We must determine whether the evidence is sufficient to show that Aulbach acted only as an agent in his negotiations with Meriwether & Associates, Inc.

The trial court found that Aulbach negotiated the contract in Texas “only in his corporate capacity as president of Ro-bach, Inc.” Aulbach testified he negotiated and contracted with plaintiff solely as president of Robach, Inc., and not in his personal capacity. Plaintiffs ledger sheets and invoices on the sworn account are in the name of Robach, Inc. Plaintiff received some payments on the accounts by checks drawn on the account of Robach, Inc. Although Meriwether testified that he believed he was dealing with Aulbach individually and that he had dealt with Aulbach in the past on a personal basis before he was aware of the existence of Robach, Inc., such testimony merely raised a question of fact which the court resolved in favor of defendant. The evidence is sufficient to support the trial court’s finding that Aul-bach acted only in a representative capacity, and that he did no act or consummate any transaction in Texas. Under such findings, Aulbach did not individually do business in Texas by entering into a contract with plaintiff on behalf of the Illinois corporation.

The evidence is sufficient to support the trial court’s findings of fact.

It is true, as pointed out in the dissenting opinion, that the conclusion that defendant, Aulbach, did not enter into a contract with plaintiff in the state of Texas involves a determination concerning the existence of an element of plaintiff’s cause of action. But there is no rule requiring that an out-of-state defendant’s objection to the exercise by a Texas court of jurisdiction over him cannot prove the non-existence of an essential jurisdictional fact, simply because such proof would also disprove the existence of a necessary element of plaintiff’s cause of action.

Where the jurisdiction of the Texas court rests on the fact that defendant entered into a contract with a resident of Texas to be performed in whole or in part by either party in Texas, it is clear that the non-resident can defeat the attempted exercise of “long-arm” jurisdiction by the Texas court by proving that he entered into no contract with a resident of Texas. The fact that the existence of the contract is also a fact which plaintiff must prove in order to impose liability on the defendant, cannot operate to deprive the defendant of his right to prove the non-existence of such contract in order to avoid the attempted exercise of jurisdiction by the Texas court.

In Arterbury v. American Bank & Trust Co., 553 S.W.2d 943, 948 (Tex.Civ.App. — Texarkana 1977, no writ), the court correctly stated that the issue of ultimate liability is separate from the issue of jurisdiction. But the court pointed out that the act or omission within the state “is sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability...” Such a statement is undoubtedly correct. But where, as here, defendant establishes the non-existence of the act or omission on which jurisdiction rests, he has destroyed the basis for the power of the Texas court to determine the issue of liability. The fact that the showing of an absence of the factual basis for exercise of jurisdiction also tends to show the absence of liability is irrelevant, cannot in any way limit the right of defendant to establish the non-existence of the essential jurisdiction fact. If A, a resident of Texas, sues B, a resident of Oklahoma, in a Texas court, alleging that B struck A in the head with a hatchet in Texas and B, in the hearing held for the purpose of determining the validity of his challenge to the jurisdiction of the Texas court, establishes that he did not hit A in the head with a hatchet, it cannot be said that the Texas court has jurisdiction over B because the question of whether or not B struck A with a hatchet also is an issue necessarily involved in determining whether B is liable to A for an assault. To so hold would effectively bar defendant’s right to challenge the jurisdiction of the Texas court by showing that he committed no act in Texas which would justify the assertion of jurisdiction over his person by the Texas court.

The judgment of the trial court is affirmed.

REEVES, Justice,

dissenting.

I respectfully dissent from the majority opinion and would hold Robert E. Aulbaeh amenable to jurisdiction by our courts.

The burden is on Aulbaeh to prove that he is not amenable to process by Texas courts. Smith v. Reynolds, 533 S.W.2d 861, 862 (Tex.Civ.App. — San Antonio 1976, no writ). He must overcome the jurisdictional allegations in the plaintiff’s pleadings either by showing their insufficiency or negating the facts alleged. TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427, 432 (Tex.Civ.App. —Dallas 1981), writ refd n.r.e. per curiam, 639 S.W.2d 450 (Tex.1982).

The words “not amenable to process issued by the courts of this State” can only be interpreted to mean that the special appearance is available solely to establish that the Texas court cannot, under the federal and state constitutions and the appropriate state statutes, validly obtain jurisdiction over the person or the property of the defendant with regard to the cause of action pled. Defective service or defective process, or even an attempt to bring the defendant before the court under the wrong statute does not authorize the use of the special appearance. If the defendant attempts to make a special appearance to raise any of these contentions, then his appearance is a general one and the rule of York v. State applies to him with full force.

TM Productions, Inc. v. Blue Mountain Broadcasting Co., supra, at 430, quoting, Thode, “In Personam Jurisdiction; Article 2031b, The Texas ‘Long Arm’ Jurisdiction Statute; and the Appearance to Challenge Jurisdiction in Texas and Elsewhere,” 42 TEX.L.REV. 279, 312-13 (1964).

Aulbaeh failed to meet this burden. He failed to show he did not perform the alleged acts in Texas. The evidence is undisputed that he did transact business in Texas with Meriwether & Associates. However, he argues that since he performed them while holding the status of agent for Robach, Inc., that he is not liable for damages and thus not amenable to our jurisdiction. The question of Aulbach’s individual liability is one for trial on the merits, not a rule 120a hearing. In a jurisdictional hearing, the question is whether Aulbaeh submitted himself to the jurisdiction of our courts under the requirements stated in O’Brien v. Lanpar Co., 399 S.W.2d 340, 342 (Tex.1966). To determine at a jurisdictional hearing whether Aulbaeh acted only as an agent within the scope of his duties while he was working in Texas is to determine a material issue on the merits. The trial court must look to whether Aulbaeh, in any capacity, transacted business in the State of Texas. In Arterbury v. American Bank & Trust Co., 553 S.W.2d 943, 948 (Tex.Civ.App. — Texarkana 1977, no writ), the court stated that the ultimate issue of liability in tort is not a jurisdictional issue. “The act or omission within the state is a sufficient basis for the exercise of jurisdiction to determine whether or not the act or omission gives rise to liability in tort.” Id. We believe the statement holds true for contractual liability as well as for individual liability of a party.

The majority is stepping ahead of itself by determining liability at a jurisdictional hearing. “[Tjhere must be only a showing of the act on which jurisdiction is predicated, not a prima facie demonstration of the existence of a cause of action.” Id., at 947; Product Promotions, Inc. v. Cousteau, 495 F.2d 483, 490-91 (5th Cir.1974). On affirmatively determining that preliminary point, the court then must proceed to a determination of liability at trial on the merits, at which time Aulbaeh may present his defensive issue of agency.

Aulbaeh failed to prove he is not amenable to process by Texas courts. He admits he performed the acts from which the cause of action arises. To demand that Aulbaeh defend himself in our forum does not offend traditional notions of fair play and substantial justice. I believe Aulbaeh is amenable to process by the Texas courts and would reverse the judgment of the trial court which sustains Aulbach’s objection to the jurisdiction.


text:
    The CITY OF LAREDO, Appellant, v. Hector Ruben THREADGILL, Appellee.
    No. 04-84-00336-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.
    Anthony C. McGettrick, Laredo, for appellant.
    Roger Rocha, Laredo, Amie Rodnick, Austin, for appellee.
    Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.
   OPINION

BUTTS, Justice.

Appellant, City of Laredo, appeals the denial of a bill of review. Appellee, Hector Ruben Threadgill, took a default judgment against the City on March 22, 1983, in which appellee recovered certain real estate. Appellee’s attorney did not file a certificate of appellant’s address as required by TEX.R.CIV.P. 239a. Appellant did not learn of the default judgment until the sheriff attempted execution on the City. Appellant filed its petition for a bill of review on May 12, 1983. After a non-jury hearing, the trial court entered judgment against appellant. On appeal, appellant alleges the court erred in not granting a new trial because the City was not notified of the entry of the default. We reverse the judgment of the trial court.

In order to be entitled to a new trial on a bill of review, the bill of review plaintiff must allege and prove that (1) he has a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident, or wrongful act of the opposing party, (3) unmixed with any fault or negligence of his own. Gracey v. West, 422 S.W.2d 913, 915 (Tex.1968); Hanks v. Rosser, 378 S.W.2d 31, 34 (Tex.1964); Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950). However, in cases in which a court official, acting within his official court duties, misinforms or fails to inform a litigant so that he is prevented from timely filing a motion for new trial, the litigant need not prove that he was prevented from making a meritorious defense by the fraud, accident, or wrongful act of the opposing party. Gracey v. West, supra, at 916; Hanks v. Rosser, supra, at 35; Kelly Moore Paint Co. v. Northeast National Bank of Fort Worth, 426 S.W.2d 591, 594 (Tex.Civ.App. — Fort Worth 1968, no writ).

The purpose of TEX.R.CIV.P. 239a, which requires the winning party to certify to the district clerk the last known address of the losing party in a default judgment, is to insure that the losing party has an opportunity to attack the judgment by motion for new trial or appeal. The purpose of the rule “would be unnecessarily thwarted if there can be no relief when the clerk, either intentionally or through oversight, fails to send the requisite notices.... ” Crabbe v. Hord, 536 S.W.2d 409, 412 (Tex.Civ.App.— Fort Worth 1976, writ ref’d n.r.e.), cert. denied, 430 U.S. 932, 97 S.Ct. 1554, 51 L.Ed.2d 776 (1977).

The same reasoning applies when the clerk fails to send notice because the appel-lee failed to certify the address. In that instance, the bill of review standard is much like that of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). The bill of review plaintiff must allege and prove (1) a meritorious defense to the underlying cause of action; (2) official misinformation misled or prevented him from timely filing a motion for new trial; (3) his failure to answer was not intentional or the result of conscious indifference, even though it was negligent; and (4) no injury will result to the other party by the delay in the trial. Petro-Chemical Transport, Inc. v. Carroll, 514 S.W.2d 240, 244 (Tex.1974); Hanks v. Rosser, supra; Gonzalez v. Mann, 584 S.W.2d 928, 931 (Tex.Civ.App. — Houston [14th Dist.] 1979, writ ref’d n.r.e.).

Appellee’s attorney admitted at the bill of review hearing that he did not give the district clerk’s office notice of the appellant’s address. We, therefore, hold the Hanks v. Rosser standard for bill of review applies.

Appellant has met the Hanks v. Rosser requirements for the granting of a bill of review. The appellant proved a meritorious defense and the failure of appellee to give the required certificate of address to the district clerk. The trial court found appellant was negligent in failing to file an answer. However, negligence is not controlling in a case like this. Petro-Chemical Transport, Inc. v. Carroll, supra. Further, appellee’s failure to comply with Rule 239a in giving the clerk notice of appellant’s address weighs heavily in our consideration. We believe appellee will suffer no harm by granting the bill of review, even though he resides in Arizona. His presence at trial probably will not be necessary as the necessary proof will consist mainly of documents.

The trial court abused its discretion in failing to grant appellant a new trial. The judgment of the trial court is reversed and remanded for a new trial. It is proper that costs of the appeal be taxed against appellant, and we so order.

      . The City filed a writ of error in this suit in our court. We affirmed the judgment of the trial court in an unpublished opinion, appeal No. 04-83-00223-CV, delivered March 14, 1984. On June 14, 1984, the Supreme Court denied application for writ of error, no reversible error.


author: ESQUIVEL, Justice.

text:
    Clayton P. MYER, Appellant, v. The STATE of Texas, Appellee.
    No. 04-84-00352-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 20, 1985.
    Rehearing Denied March 11, 1985.
    Discretionary Review Refused May 1, 1985.

      Thomas G. Sharpe, Jr., Brownsville, for appellant.
    Sam Millsap, Jr., Lawrence A. Smith, Criminal Dist. Atty’s. Office, San Antonio, for appellee.
    Before CADENA, C.J., and ESQUIVEL and BUTTS, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from a denial of a writ of habeas corpus filed in response to a Governor’s Warrant, issued pursuant to article 51.13 of the Texas Code of Criminal Procedure, for the extradition of the appellant to the State of California. The trial court denied the relief and remanded appellant to the custody of the Bexar County Sheriff for delivery to an agent of the State of California. Appellant presents four points of error. We affirm.

Appellant’s initial contention is that the State of Texas failed to properly prove the existence of the extradition warrant. Specifically, appellant alleges that the records offered through Bexar County Sheriffs Deputy Gene Talbert were not business records of the Sheriff of Bexar County, Texas, and were therefore inadmissible under TEX.REY.CIY.STAT.ANN. art. 3731a (Vernon Supp.1985), because they lacked an authentication from California officials. The State called as its witness Deputy Talbert, who testified that he was the deputy sheriff in charge of extraditions, that he received the California Governor’s Warrant, identification materials and supporting affidavits on Clayton P. Myer from Orange County, California, along with the Texas Governor’s Warrant in the mail, and that all procedural requirements of his office were properly performed. He identified appellant’s photo and his fingerprint card from the packet and identified appellant in the courtroom as the same person in the photograph. The State then introduced the official records. Inasmuch as the documents offered into evidence were original, official writings, we hold they were admissible for proof of the truth of the matters asserted therein. TEX.R. EVID. 902(1). Only when copies are introduced must an authentication of the custodian of the records be included. TEX.R. EVID. 902(4).

Appellant further alleges that the affidavits offered in support of the amended California complaint are at variance with said complaint. We hold that the introduction of supporting papers from the Governor of the State of California was unnecessary as the Texas Governor’s Warrant established a prima facie case and the State was not required to introduce the supporting papers. Ex parte Cain, 592 S.W.2d 359, 362 (Tex.Crim.App.1980) (en banc on rehearing); Noe v. State, 646 S.W.2d 595, 598 (Tex.App. — San Antonio), rev’d on other grounds, 646 S.W.2d 230 (1983). Appellant’s initial contention is overruled.

Next, appellant argues that his extradition is improper because the California complaint is invalid. In support of his contention, appellant cites this court, as he did the trial court, to the case of People v. Gitchuway, 146 Cal.App.3d 432, 194 Cal.Rptr. 141 (Ct.App.1983). Appellant relies on this case for the proposition that not only was the complaint against him defective, it did not comply with the Constitution of the State of California. Initially, we recognize that habeas corpus proceedings do not constitute a trial on the merits, rather a hearing on the Governor’s Warrant. Ex parte Scarbrough, 604 S.W.2d 170 (Tex.Crim.App.1980). Once the Governor’s Warrant is introduced and it is regular on its face, the State has made a prima facie case authorizing extradition. Ex parte Mackerman, 376 S.W.2d 350 (Tex.Crim.App.1964). Further, whether pleadings filed by a demanding state are sufficient to support a criminal prosecution in that demanding state is not an issue in our courts but one for the courts of the demanding state to decide. See Ex parte Nelson, 594 S.W.2d 67 (Tex.Crim.App.1979); Ex parte Schmidt, 500 S.W.2d 144 (Tex.Crim.App.1973); Ex parte Preston, 434 S.W.2d 136 (Tex.Crim.App.1968). Appellant’s contention is overruled.

Appellant’s third assignment of error relates to his attempt to raise an alibi defense to the crimes charged in California. The generally recognized rule in' Texas, as found in Ex parte Martinez, 530 S.W.2d 578 (Tex.Crim.App.1975), is that alibi testimony of the accused, standing alone, will not support the granting of a writ of habe-as corpus and is not sufficient to overcome a prima facie case made by the introduction of the Governor’s Warrant. The exception to this rule is found in Ex parte Meador, 597 S.W.2d 372, 373 (Tex.Crim.App.1980). Generally, that case stands for the proposition that when an accused challenges the identity of the person named in the warrant, that is, he is not the person named in the warrant, then the burden of proof shifts to the State to show that the person taken into custody and held for extradition is the identical person named in the warrant. Id. at 373. Appellant’s reliance on this exception is misplaced. In the instant case, appellant attempted to prove an alibi defense, whereas in Meador, the appellant specifically put identity into issue. We do not agree with appellant’s contention that he has destroyed the presumption of regularity raised by the Governor’s Warrant. The State called as a witness the complainant’s stepfather who, had come from California to testify. He identified appellant as the person who lived at his house in California during the time in question. The trial judge is the sole trier of fact and it is clear that the trial judge simply chose not to believe the appellant and his alibi witnesses. This contention is overruled.

In his last contention, appellant argues that this court must test the legal validity of the complaint against the appellant not on the affidavits and extradition packet, but based on California law. Appellant relies on the Gitchuway opinion for the proposition that the indictment is not correct and TEX.CODE CRIM.PROC. ANN. art. 51.04, § 5 (Vernon 1979), which requires proof that the alleged act committed is a violation of the law in the demanding state. In response to this contention, the State argues, and correctly so, that the variance between the extradition packet and California law is an affirmative defense which by its nature has been ruled to be for the courts of the demanding state to determine. See Ex parte Leach, 478 S.W.2d 471 (Tex.Crim.App.1972). In addition, it is the position of Texas courts that they will not look behind the Governor’s Warrant to the demanding state’s cases or its statutes, so long as the warrant is valid on its face. See Ex parte Ellis, 589 S.W.2d 128 (Tex.Crim.App.1979); Ex parte McCarthy, 472 S.W.2d 759 (Tex.Crim.App.1971). Unless the accusation against the appellant is clearly void, the question of its validity is for the demanding state. See Ex parte Bowman, 480 S.W.2d 675 (Tex.Crim.App.1972). We overrule appellant’s final contention as being without merit.

The order remanding the appellant to the custody of the Bexar County Sheriff for extradition to the State of California is affirmed.

      . Article 3731a was deemed to be repealed as it relates to civil actions by order of the Texas Supreme Court dated November 23, 1982, effective September 1, 1983. Appellant's objection should have been premised on TEX.R.EVID. 902(1).

      . We note that prior to submission of this cause but after the appellant's brief was tendered, the California Reporter of Decisions was ordered not to publish the opinion of this cause. Pursuant to TEX.R.CRIM.APP.P. 308, we may not consider the opinion tendered by counsel in determining the issues in the instant appeal.

      . See supra note 2.


author: PER CURIAM.

text:
    Roland HARPER, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-074-CR.
    Court of Appeals of Texas, Austin.
    Feb. 20, 1985.

      Laura M. Little, Georgetown, Burt Carnes, Taylor, for appellant.
    Edward J. Walsh, Dist. Atty., Ken Anderson, Asst. Dist. Atty., Georgetown, for appellee.
    Before POWERS, EARL W. SMITH and CARROLL, JJ.
   PER CURIAM.

A jury found appellant guilty of involuntary manslaughter. Tex.Pen.Code Ann. § 19.05(a)(2) (1974). After appellant entered a plea of true to the enhancement paragraphs alleging two previous felony convictions for driving while intoxicated, the jury assessed punishment at imprisonment for life. Tex.Pen.Code Ann. § 12.-42(d) (Supp.1985). Finding appellant’s three grounds of error to be without merit, we affirm the judgment of conviction.

This cause arises out of a multi-vehicle traffic accident that occurred shortly after midnight on April 3, 1983, at the intersection of U.S. Highway 183 and Ranch Road 620 in far northwest Austin. The evidence reflects that appellant was driving his pickup truck south on Highway 183 at approximately forty miles per hour when he struck from the rear a Ford Maverick that was stopped at the intersection in obeyance to a red traffic light. Both the testimony of witnesses and physical evidence at the scene indicated that appellant made no effort to stop before hitting the Maverick, which was spun into the middle of the intersection by the force of the impact.

Appellant’s vehicle continued through the intersection, then swerved left into the northbound traffic. The truck next hit a motorcycle, killing the rider, Charles He-stand. After hitting the motorcycle, appellant’s truck sideswiped a Chevrolet Monte Carlo and then collided with the guardrail on the east side of Highway 183, where it finally came to rest.

The emergency medical personnel who treated appellant at the scene of the accident and the physician who treated appellant at the hospital testified that appellant smelled strongly of alcoholic beverage and described his behavior as incoherent and uncooperative. All were of the opinion that appellant was intoxicated. A blood test performed at the hospital showed appellant’s blood alcohol level to be .26 percent. Appellant does not challenge the sufficiency of the evidence to support his conviction for the involuntary manslaughter of Hestand.

In his first ground of error, appellant contends the trial court erred in overruling his motion to suppress testimony by Austin police officer C.F. Adams concerning the discovery of a wine bottle in appellant’s pickup. Adams, one of two Austin police officers specially assigned to investigate serious traffic accidents, was in charge of gathering and preserving the physical evidence at the scene of the instant accident. During the course of his investigation, Adams followed a trail of liquid as it crossed Highway 183 from the southbound lanes through the northbound lanes and ended at the radiator of appellant’s pickup. Appellant had already' been taken to the hospital and the truck’s left door was open. Looking inside the truck, Adams saw a bottle partially wrapped in an opaque plastic bag lying in the floorboard beneath the steering wheel. Adams picked up the bottle and read the label, which disclosed that the bottle contained wine. The bottle was almost empty.

We disagree with appellant’s contention that Adams’ testimony was the product of an unlawful search of his truck. To the contrary, we find that Adams’ actions were justified under the plain view doctrine. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Williams v. State, 668 S.W.2d 692, 699 (Tex.Cr.App.1983). As he stood outside the pickup, Adams was unquestionably in a legitimate position to view the bottle lying on the floorboard. Adams’ discovery of the bottle was inadvertent. Finally, Adams’ observations at the scene, combined with his training and experience in the investigation of traffic accidents, gave him probable cause to believe the bottle was seizable as evidence of a crime. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends the result of the blood alcohol test conducted while he was hospitalized immediately following the accident was privileged and, therefore, inadmissible over his objection. Appellant relies on Tex. Rev.Civ.Stat. art. 4495b as enacted in 1981 and in effect at the time the blood test was conducted. See 1981 Tex.Gen.Laws, 1st Spec.Sess., ch. 1, § 1 at 1. This statute provides, in pertinent part, that records of the evaluation or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed except as otherwise provided by the statute. See art. 4495b, § 5.08(b), supra. Although this statute as originally enacted was subject to several exceptions, none were applicable to the instant cause.

Effective September 1, 1983, while appellant’s trial was in progress, art. 4495b was amended to create an exception to the confidentiality of patient records in any criminal prosecution where the patient is a victim, witness, or defendant. See Tex.Rev. Civ.Stat.Ann. art. 4495b, § 5.08(g)(8) (Supp. 1985). The result of the blood alcohol test was offered and introduced in evidence at appellant’s trial on the day this amendment took effect. Appellant argues that this constituted an unconstitutional ex post fac-to application of § 5.08(g)(8).

In Ritchey v. State, 407 S.W.2d 506 (Tex.Cr.App.1966), the defendant contended the trial court erroneously permitted his wife to testify against him at his trial for statutory rape. The court held:

We perceive no error, as Art. 38.11 of the 1965 Code [Tex.Code Cr.P. art. 38.11] — in effect at the time of trial — permitted the former wife to testify against appellant in the case for the offense committed against her child under the age of sixteen years. The fact that Art. 38.11, supra, became effective after the date of the commission of the offense did not, as applied to the case, render it ex post facto and invalid. [Citation omitted.] No less evidence was required to convict by virtue of the statute.

407 S.W.2d at 507. See also Miller v. State, 468 S.W.2d 818, 823 (Tex.Cr.App.1971). As in Ritchey, no less evidence was required to convict appellant by virtue of the 1983 amendment to art. 4495b, § 5.08, and the trial court did not err in admitting the result of the blood test.

Finally, appellant contends the trial court erred at the punishment stage by refusing his requested charge on temporary insanity caused by voluntary intoxication. Tex.Pen.Code Ann. § 8.04 (1974). We find, however, that a person convicted of involuntary manslaughter under § 19.-05(a)(2), supra, cannot rely on § 8.04.

A finding that the statutory elements of § 19.05(a)(2) have been fulfilled constitutes, as a matter of law, a finding of reckless conduct; that is, a finding that the defendant was aware of but consciously disregarded a substantial and unjustifiable risk that by reason of his operation of a motor vehicle while intoxicated he would cause the death of an individual by accident or mistake. Guerrero v. State, 605 S.W.2d 262 (Tex.Cr.App.1980); Ormsby v. State, 600 S.W.2d 782 (Tex.Cr.App.1979). Because, as a matter of law, appellant was aware of but consciously disregarded the risk, he cannot logically assert that, as a result of the very intoxication that is an element of the offense under § 19.05(a)(2), he did not know his conduct was wrong or was incapable of conforming his conduct to the requirements of the law. Tex.Pen. Code Ann. § 8.01(a) (1974), in effect at the time of the instant offense.

We also find that the evidence on which appellant relies does not raise an issue of temporary insanity. This evidence reflects that appellant has been an alcoholic for over twenty years. In addition, appellant suffers from a heart condition and emphysema, for which he takes numerous drugs. The doctor who treated appellant following the accident testified that a person who took such drugs could suffer certain serious side effects including delusions, disorientation, and confusional states. However, there was no evidence offered at trial to indicate that appellant suffered such side effects, although his wife testified that he occasionally experienced memory losses and brief blackouts.

Appellant’s wife also testified that on the evening in question appellant “wasn’t looking right.” After taking “a couple of drinks of beer,” appellant drove off in his pickup without explanation. One of the emergency medical technicians who treated appellant described his behavior as bizarre and abnormal. As for appellant, his only memory of the evening in question was eating dinner several hours before the accident.

Unquestionably, appellant was very drunk when he struck and killed the deceased with his pickup. However, there is nothing in the evidence to indicate that, as a result of this intoxication, appellant did not know his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he violated. Hart v. State, 537 S.W.2d 21 (Tex.Cr.App.1976). This ground of error is overruled.

The judgment of conviction is affirmed.

      . Adams testified he had received special training in accident investigation and had investigated several hundred traffic accidents.

      . For the purpose of this opinion, we assume, as have the parties, that the result of the blood test, which was expressly ordered by a physician to assist the diagnosis of appellant’s injuries but performed by a laboratory technician, was confidential under § 5.08(b).


author: GAMMAGE, Justice.

text:
    Patrick O’Neil KELLY, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-038-CR(T).
    Court of Appeals of Texas, Austin.
    Feb. 20, 1985.
    Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Criminal Dist. Atty., Dennis E. Guffey, Asst. Criminal Dist. Atty., Dallas; Robert Huttash, State Pros. Atty., Austin, for appellee.

      Before POWERS, GAMMAGE and CARROLL, JJ.
   GAMMAGE, Justice.

Patrick O’Neil Kelly appeals from the order of the trial court revoking probation and sentencing him to confinement in the Texas Department of Corrections. We will affirm the order.

Kelly entered a plea of guilty to the charge of burglary of a building, a second degree felony, before the magistrate’s court of Dallas County. The plea was accepted, and the punishment was set at four years confinement, probated. Kelly made no complaint at that time about being brought before the magistrate rather than the district court. Thereafter, the State filed a motion to revoke Kelly’s probation. The motion was granted after a hearing before the district court of Dallas County. This appeal is from the revocation of probation, not the initial conviction.

By his first ground of error, Kelly asserts that the initial conviction in this cause is void, therefore the subsequent revocation is void. Traylor v. State, 561 S.W.2d 492 (Tex.Cr.App.1978). Kelly was presented before a magistrate for the entering of the plea and sentencing pursuant to Tex.Rev.Civ.Stat.Ann. art. 1918c (Supp. 1985). This article provides for the appointment of magistrates in Dallas County by the district judges of that county, to perform the functions authorized by the act. Kelly contends that this act is an impermissible “local or special law,” in contravention of Tex. Const.Ann. art. Ill, § 56 (1984). Kelly relies on the following clause of § 56:

Sec. 56. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing:
* * * * * ⅜
Regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, commissioners, arbitrators or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate, [emphasis added]

A review of the prior judicial treatment of this section reveals that the creation of county level courts, district courts, and additional justice courts in specifically named counties has been held to be permissible under its provisions. Harris County v. Crooker, 248 S.W. 652 (Tex.1923); Lytle v. Halff, 75 Tex. 128, 12 S.W.2d 610 (1889); Howard v. State, 77 Tex.Cr.R. 185, 178 S.W. 506 (Tex.Cr.App.1915). Various offices have been abolished, and authority and obligations of officials modified, without violating this section. See Jones v. Anderson, 189 S.W.2d 65 (Tex.Civ.App. 1945, writ ref’d). Modification of jurisdiction among the various courts in specific counties has been upheld, and it has been generally held that the legislature may pass such local laws affecting the functioning of different courts throughout the state. Rogers v. Graves, 221 S.W.2d 399 (Tex.Civ.App.1949, writ ref’d); Tom Green County v. Proffitt, 195 S.W.2d 845 (Tex.Civ.App.1946, no writ).

Texas Const.Ann. art. V, § 1 (Supp.1985) provides, in pertinent part:

The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other courts thereto.

The State contends that this section, rather than art. Ill, § 56, is controlling in this case. We agree. We hold that art. 1918c is not an unconstitutional “local or special law,” in violation of art. Ill, § 56. The Legislature is authorized by art. V, § 1 to create courts and organize those courts as they deem necessary. Appellant’s first ground of error is overruled.

By his second ground of error, Kelly contends that this cause was never properly referred to the magistrate. He asserts that while we must presume regularity of proceedings in the trial court, the transcript herein does not contain an order of referral to the magistrate. Therefore, he argues, the magistrate never had jurisdiction, pursuant to the terms of art. 1918c. The transcript was amended, however, after appellant’s brief was filed, to reflect the existence of a prior order of referral, referring all cases subject to disposition under art. 1918c to the magistrate. Kelly’s original conviction was clearly a case subject to disposition under art. 1918c.

The referral order provides, in pertinent part:

ORDER OF REFERRAL
IT IS HEREBY ORDERED that all cases which have been indicted, or have had such indictment duly waived by the defendant, and assigned to this Court are hereby referred to the Magistrate’s Court of Dallas County, Texas pursuant to Art. 1918c V.A.C.S., for the following proceedings:
(1) Negotiated pleas of guilty before the Court, and the Magistrate shall exercise all. of the powers enumerated in Art. 1918c Y.A.C.S. as may be deemed necessary and proper by such Magistrate, and in addition, the Court deems that it is necessary and proper for the efficient performance of the duties herein required that such Magistrate be, and is hereby, authorized to: ...

This order was entered prior to the referral of Kelly’s case. The statute provides that the district court “may refer to the magistrate any criminal case.” Sec. 4(a), art. 1918c. This is the only reference in the statute to the manner or method of referral of cases. We hold that this order of referral of cases to the magistrate is sufficient to satisfy the requirements of the. act. Appellant’s second ground of error is overruled.

The order of revocation is affirmed.