author: THOMAS G. DAVIS, Judge.

text:
    Richard Allen HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 493-84.
    Court of Criminal Appeals of Texas, En Banc.
    March 13, 1985.

      Marshall Davis Brown, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and J. Harvey Hudson and Russell Lloyd, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

A jury found appellant guilty of aggravated robbery and thereafter found the enhancement paragraphs of the indictment to be true. The trial court assessed confinement for life. The First Court of Appeals (Houston) affirmed the conviction. Hill v. State, 666 S.W.2d 663 (1984). The Court of Appeals held that the trial court did not err in failing to conduct a hearing on the effectiveness of appellant’s court-appointed trial counsel. We granted appellant’s petition for discretionary review to examine that holding.

This offense occurred on December 29, 1982. Appellant was arrested two days later. The trial court appointed counsel to represent appellant on February 4, 1983. Between March 4 and May 24, 1983, appellant filed eleven pro se motions. One of the motions is entitled “Notice That The Defendant Will not accept Thomas C. Dunn as his Attorney of Record, And Request for Competent Counsel.” The motion states that appellant “would show the Court the following:

“I
“That after the Defendant arraignments, despite several written requested and telephone calls, Thomas C. Dunn has refused to get in contact with Defendant, and any attempts made by the Defendant to receive proper counsel from Thomas C. Dunn have been totally ignored.
“II
“Attorney Thomas C. Dunn refuses to file any Motions that the Defendant, has been requesting him to file.
“Ill
“Attornay Thomas C. Dunn is not investigating my cases properly. Such as talk with the Co. Defendants. Also has refuses investigate circumstances of my cases.
“IV
“Family members have talked with Attorney Thomas C. Dunn and they feel as though he is incapble of handling my cases properly.” [We have reproduced appellant’s motion precisely as it appears in the record.]

A second motion is entitled “Motion to be Relieved of Appointed Counsel and Appointment of Replacement,” and essentially repeats the allegations of the first, quoted above.

On June 8, 1983, the trial court held a brief hearing before calling the case for trial. At the hearing, defense counsel presented three of appellant’s eleven pro se motions to the court for a ruling, stating “The defendant had asked me he particularly wanted to hear the three motions be filed pro se, that he particularly wanted me to urge the Court.”

The case then went to trial before a jury. At the conclusion of the State’s case, the following colloquy took place out of the presence of the jury:

“MR. DUNN: Judge, the defendant has requested me to request the Court permission to make an oral statement to the Court at this time.
“THE COURT: To the Court?
“MR. DUNN: Yes.
“THE COURT: All right.
“THE DEPENDANT: Yes, Your Honor, on those motions I filed in the court, is it in the record that the motions that wasn’t heard is it in the record that were denied?
“THE COURT: No.
“THE DEPENDANT: It’s not in the records?
“THE COURT: No.
“THE DEFENDANT: Is there any way possible it can be entered into the record?
“THE COURT: What motion specifically?
“THE DEFENDANT: Every one of them which was filed.
“THE COURT: First, there are several things wrong with that. First of all, you are not co-counsel and never will be. That is not the law of the State of Texas.
“Secondly, some of the motions were not timely filed, and, no,. I am not going to consider them at this late date.”

Appellant contends that the trial court should have held a hearing at that point on the issue of defense counsel’s effectiveness. The failure to hold such a hearing, appellant argues, constitutes fundamental error.

In Stovall v. State, 480 S.W.2d 223 (Tex. Cr.App.1972), defendant informed the trial court on the day of trial that he had discharged his court-appointed counsel. The trial court then stated that counsel would not be discharged. Counsel represented defendant at trial. On appeal, defendant contended that the trial court should have held a hearing on its own motion to determine why defendant was dissatisfied with counsel. This Court rejected the argument, writing:

“[Defendant] never stated any grounds at the time he sought to discharge counsel. No request for a hearing was made at any time before, during or after the trial. Nothing in the record points to any reason the [defendant] wanted different counsel or that he was not properly represented.”

In King v. State, 511 S.W.2d 32 (Tex.Cr. App.1974), defendant made a similar claim. We quote this Court’s discussion of the issue in full:

“Appellant next contends that the court improperly refused to conduct a hearing, outside the presence of the jury, in order to determine if the appellant was justified in his desire to discharge his retained attorney.
“The record reveals that about mid-way through the trial the appellant filed a pro se motion requesting that he be allowed to discharge his retained attorney and employ new counsel. Neither the appellant nor his counsel made any effort to present evidence in support of this motion, nor is the court’s reason for denying it shown.
“Although appellant offered no evidence, he argues that the court should have held a hearing on this matter. The record reflects that appellant and the court discussed appellant’s request, but appellant did not seek to have this discussion transcribed in the court reporter’s notes, nor is the matter preserved by bill of exception.
“Appellant’s contention is without merit. Upon presenting his motion, appellant had a duty to offer evidence in support of it, and to preserve the evidence and discussions about the motion for review. This was not done. Absent this action, nothing is preserved for review. ...”

In Malcom v. State, 628 S.W.2d 790 (Tex. Cr.App.1982), defendant filed a pro se motion to dismiss court-appointed counsel two weeks before trial, citing the attorney’s “unwillingness to explore the [defendant’s] contentions” and alleging that an “irreparable animosity” had developed between defendant and counsel “thus preventing a workable relationship between attorney and client.” Defendant alleged in his motion that forcing him to accept his court-appointed lawyer would deny him adequate counsel as guaranteed by the Sixth and Fourteenth Amendments. The motion asked that the court appoint another attorney to represent defendant. The trial court denied the motion the day after it was filed.

On appeal, defendant claimed that the failure of the court to hold a hearing on his motion to dismiss counsel denied him his rights to procedural and substantive due process. Relying in part on Stovall, supra, this Court rejected the claim, writing:

“We have found no case law mandating the trial court to sua sponte hold a hera-ing on this matter. In addition, [defendant] never requested such a hearing.”

Appellant seeks to distinguish this case from Malcom on two grounds. First, appellant points out that the court in Malcom ruled on the motion, whereas in the instant case the trial court did not. Appellant does not go on to explain why this should make a difference. We do not find that it does.

Next, appellant’s counsel takes care to deny that he is suggesting that a trial court must conduct a hearing sua sponte on the issue once a defendant claims his court-appointed counsel is inadequate. Rather, counsel seeks to distinguish this case from Malcom on the additional ground that appellant in the instant ease requested a hearing on the issue. Counsel argues that appellant requested the hearing during the colloquy we have quoted above. Specifically, counsel claims that “[appellant] requested hearings on, ‘Each one of them, which was filed’ ...”

We note that, of the eleven motions appellant had filed before trial, the court had heard three at the pre-trial hearing. After the State rested, appellant asked if the trial court’s denial of the others was in the record. When the court replied that it was not, appellant asked, “Is there any way possible it can be entered into the record?” Given the context, “it” must refer to the court’s ruling denying the motion or motions. The court asked “What motion specifically?” The appellant replied, “Every one of them which was filed.” The record reflects that appellant asked for a ruling on each of eight motions. The record does not reflect that appellant asked for a hearing on any of them.

In Malcom, supra, the Court stated:
“If a defendant is displeased with his appointed counsel, he must bring the matter to the court’s attention. Thereupon, the defendant carries the burden of proving that he is entitled to a change of counsel.”

Even if we assume that appellant in the instant case brought the matter to the trial court’s attention, appellant did not request a hearing on the matter nor otherwise attempt to make a record to support his contentions.

The clear rule of Stovall, supra, King, supra, and Malcom, supra, is that, in addition to making the court aware of his dissatisfaction with counsel and stating the grounds for the dissatisfaction, a defendant also bears the responsibility of substantiating his claim.

In the instant case, because appellant did not request a hearing, no error was presented.

The judgment of the Court of Appeals is affirmed.

      . The three were: "Motion for Disclosure of Witnesses,” "Motion to Discover and Inspect Physical Evidence,” and a motion in limine regarding the conduct of the trial by counsel for the State.

      "3 Appellant does not contend that he received ineffective assistance of counsel, nor would the record support such a contention."


source: Caselaw Access Project

author: McKAY, Justice. COLLEY, Justice,

license: Public Domain

text:
    John Earl DUPLECHIN, Appellant, v. The STATE of Texas, Appellee.
    No. 12-81-0114-CR.
    Court of Appeals of Texas, Tyler.
    Nov. 10, 1983.
    Buddy Stevens, Angleton, for appellant.
    John B. Holmes, Jr., Dist. Atty., Houston, for appellee.
   McKAY, Justice.

This is an appeal from a conviction for the offense of aggravated assault. Appellant was indicted for murder. The jury found that appellant had been twice before convicted of a felony, as alleged in the indictment, and the trial judge assessed his punishment at life imprisonment in the Texas Department of Corrections.

This court delivered an opinion on March 17, 1983, in which we affirmed the conviction. 654 S.W.2d 20. Appellant raised on appeal for the first time the question of whether or not the indictment for one of the felony convictions used to enhance the present conviction was void as fundamentally defective. We held that the indictment was not properly before us and ruled that nothing was presented for review. The indictment complained of was included in the transcript as an attachment to a writ of habeas corpus filed and denied without a hearing in the trial court after sentencing. The petition with its accompanying documents, i.e., the indictment complained of, was included in the transcript after the trial judge had approved the record. The order approving the record was on page 497 of the transcript and approved the preceding 496 pages as the true and correct record of the trial. The petition for habeas corpus was found on pp. 508-513. The District Clerk of Harris County included in his certificate that the preceding pages were a full and complete record of the proceedings. There was no further approval by the trial court of any additional instruments or record. This court held in its previous opinion that the indictment was not properly before us in that there was no objection to the indictment raised at trial, citing Hill v. State, 633 S.W.2d 520 (Tex. Crim.App.1981).

The Court of Criminal Appeals granted appellant’s petition for discretionary review, and on June 29, 1983, delivered an opinion remanding the cause to this court for reconsideration of appellant’s grounds of error. 652 S.W.2d 957. The opinion stated that we had erroneously relied on Hill. The opinion cited Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App.1981), as holding that the absence of a trial objection to the use of a prior conviction, based on a fundamentally defective indictment does not preclude a subsequent attack upon a conviction that utilized the prior conviction for enhancement purposes. In Nivens, the subsequent attack was through an application for writ of habeas corpus.

The court in the opinion on appellant’s petition for discretionary review instructed us to do the very thing that the court said it should not have done in Hill, citing Smith v. State, 486 S.W.2d 374 (Tex.Crim. App.1972), that is, to go outside the appellate record of the trial court and consider a writ of habeas corpus. As previously discussed, the transcript of the trial did not include a copy of the indictment in the prior conviction. It was included in the transcript by the District Clerk. The application for a writ of habeas corpus was not before this court, but was addressed to a district court and denied, and was not part of the appeal. Under Tex.Code Crim.Proc. Ann. § 11.07 (Vernon 1983) we do not have jurisdiction of post-conviction writs of habe-as corpus. However, in this instance it appears the Court of Criminal Appeals has refused the very same writ of habeas corpus without written order on December 10, 1980.

Therefore, we now review the indictment. In pertinent part it reads:

... On or about the 21st day of September, A.D. 1971, in said County and State, was then and there a person who had previously been convicted of assault to murder with malice, a felony, to-wit, the said JOHN EARL DUPLICHIN was duly and legally convicted on the 21st day of March, A.D., 1968, in the 178th District Court of Harris County, Texas in cause No. 125,510 of said offense of assault to murder with malice, a felony, styled the State of Texas vs. JOHN EARL DUPLICHIN, upon an indictment then and there legally pending against him in said court and which said court had jurisdiction of said offense, and said conviction was a final conviction.
And after the judgment of conviction in said cause no. 125,510 had become final, the said JOHN EARL DUPLICHIN on or about the 21st day of September A.D. 1971, in said County and State, did then and there have in his possession, away from the premises upon which he then and there lived, a pistol capable of concealment on his person.

Appellant raises three grounds of error all contending the indictment is void as fundamentally defective because it fails to allege (1) the appellant had been previously convicted of a felony involving an act of violence; (2) that the appellant possessed a prohibited weapon; and (3) a culpable mental state.

The appellant, regarding the indictment of which he complains, was indicted under former art. 489c, Penal Code of Texas. This article was the forerunner of § 46.05 of the Penal Code. We will review appellant’s grounds of error in view of the law relating to art. 489c prior to the enactment of the present Penal Code. Art. 489c provided as follows:

Section 1. No person who has been convicted of a felony involving an act of violence may possess away from the premises upon which he lives a prohibited weapon, or a firearm having a barrel of less than 12 inches in length. “Prohibited weapon” means any weapon specified by Article 483, Penal Code of Texas, 1925, as amended.
Section 2. A person who violates any provision of this Act is guilty of a felony and upon conviction is punishable by imprisonment in the penitentiary for not less than two nor more than 10 years.

Article 483, Penal Code of Texas, 1925, as amended, provided in pertinent part:

“(a) Any person who shall carry on or about his person, saddle or in his saddlebags, or in his portfolio or purse any pistol.”

Appellant complains the indictment did not allege that he had been previously convicted of a felony “involving an act of violence.” We find the allegation that the appellant had previously been convicted of “assault to murder with malice” is sufficient by its terms to allege a previous conviction of a felony involving an act of violence. See Scott v. State, 571 S.W.2d 893 (Tex.Crim.App.1978).

Secondly, appellant contends the indictment failed to allege the appellant possessed a prohibited weapon as required by former 489c, Penal Code of Texas. A pistol is a prohibited weapon by definition under art. 483.

Lastly, appellant contends that the prior conviction is void because the indictment fails to allege a culpable mental state. Tew v. State, 551 S.W.2d 375 (Tex.Crim. App.1977), held that a culpable mental state was a necessary element of § 46.05, Penal Code, as viewed in connection with § 6.02(b) of the Penal Code. However, we do not find such a requirement for art. 489c, Penal Code of Texas. Appellant’s grounds of error are overruled.

Appellant has filed a pro se brief. We have reviewed the brief and find the grounds of error expressed therein to be without merit.

The judgment of the trial court is affirmed.

COLLEY, Justice,

concurring.

While I concur in the affirmance, I am persuaded that further discussion of the appellate posture of this case, Duplechin’s grounds and the authorities supporting our decision is appropriate.

Duplechin was convicted of the lesser included offense of aggravated assault by a jury on an indictment charging him with murder under the provisions of Section 19.-02(a)(1) and (2) of the Texas Penal Code. The indictment alleged two prior felony convictions for the purpose of enhancement of punishment under Section 12.42(d), Texas Penal Code. The jury found that the defendant had been convicted of such prior felonies as alleged, and the trial judge assessed Duplechin’s punishment at life imprisonment in the Department of Corrections. One of the prior convictions used to enhance punishment was defendant’s conviction of “Possession of prohibited weapons by persons convicted of certain felonies” as denounced by art. 489c of the former Penal Code, as amended by Acts 1969, 61st Leg. ch. 653, p. 1951. This conviction was had in Cause No. 172145 in the 185th Judicial District Court of Harris County, Texas. In this appeal all of Duple-chin’s grounds of error, contained in briefs both pro se and otherwise filed in his behalf prior to submission of the cause, chai-lenged the indictment in said Cause No. 172145. Duplechini claims such indictment is fatally defective because it fails to allege: (1) that the felony was one involving an act of violence; (2) that Duplechin possessed a prohibited weapon; and (3) a culpable mental state.

Before I address the merits of this case, it seems appropriate to review the appellate history of the case.

On March 17, 1983, this court affirmed Duplechin’s conviction (654 S.W.2d 20). The Court of Criminal Appeals granted Du-plechin’s petition for discretionary review, vacated our judgment, and remanded the cause to this court for consideration of Duplechin’s grounds of error Duplechin v. State, 652 S.W.2d 957 (Tex.Crim.App.1983).

The Court of Criminal Appeals in its per curiam opinion on the petition for discretionary review states that we refused to consider Duplechin’s grounds of error because we “... found that nothing was presented for review due to [Duplechin’s] failure to raise_” the contentions at trial.

We erroneously cited Hill v. State, 633 S.W.2d 520 (Tex.Crim.App.1982), in our opinion; and erroneously concluded our opinion with a paragraph purporting to hold that Duplechin’s failure to object at trial to the introduction into evidence of a “pen pack” containing inter alia, the judgment and sentence, but not the indictment in Cause No. 172145, precluded Duplechin’s attack on his conviction in Cause No. 172145 in our court.

Our reported opinion sets forth in adequate detail facts which show that the indictment in Cause No. 172145 was not a part of the trial proceedings. Sentence in the case on appeal was pronounced on September 20, 1979, and notice of appeal was given on September 24, 1979. Some eight months later, on May 22, 1980, the post-conviction writs of habeas corpus were filed by Duplechin at a time when the appeal was pending in the Court of Criminal Appeals. (The appeal was later transferred to the Houston 14th Court of Appeals and thence to our court in October 1981.) The indictment in Cause No. 172145 was attached to the petition for writ of habeas corpus. The trial judge denied the petition without a hearing and ordered the District Clerk to file the same in this cause and forward copies thereof to the Court of Criminal Appeals. The Court of Criminal Appeals in its per curiam opinion noted that such indictment “... is included within the record on appeal ...” and that the clerk has certified the record as “... a complete, full and correct record of the proceedings as approved by the court....” The clerk’s certificate as to such facts is patently incorrect. The face of the record so shows.

In our vacated opinion we cited Smith v. State, 573 S.W.2d 546, 547 (Tex.Crim.App. 1978), and Casas v. State, 626 S.W.2d 805, 807 (Tex.App.—San Antonio 1981, no pet.), both cases stand for the proposition that materials not a part of the appellate record cannot be considered by the reviewing court. The Court of Criminal Appeals nevertheless has ordered us to consider Duplechin’s grounds of error presumably for the reason that our refusal to consider such grounds relating to the sufficiency of the indictment in Cause No. 172145 was based on our conclusion that Duplechin’s failure to object at trial to the indictment precluded him from raising the grounds that such indictment was fatally defective for the first time on appeal. Our conclusion is contrary to the decision in Ex parte Nivens, 619 S.W.2d 184 (Tex.Crim.App. 1981) (a habeas corpus proceeding).

I respectfully submit, assuming as the undisputed facts show, that the indictment is not a part of the appellate record of the trial proceedings, our refusal to consider such grounds of error with the rationale that the indictment was not properly before us is supported by Smith v. State, 573 S.W.2d 546, 547, supra.

Next, considering that the indictment is before us as a part of defendant’s petition for writ of habeas corpus, the question arises of whether we have jurisdiction to entertain such writ. Under the record I believe we do not. The courts of appeal have no original habeas corpus jurisdiction. Article 5, Section 6 of the Texas Constitution, grants no original habeas corpus jurisdiction to the courts of appeal but does provide that in addition to the appellate jurisdiction conferred on the courts of appeal thereby, “[S]aid courts shall have such other jurisdiction, original and appellate, as may be prescribed by law.” To this date the legislature has not granted the courts of appeal original habeas corpus jurisdiction in criminal cases. Denby v. State, 627 S.W.2d 435 (Tex.App.—Houston [1st Dist.] 1981, no pet.).

Although we are without original habeas corpus jurisdiction, can we entertain the writ by virtue of the provisions of Article 44.34 of the Texas Code of Criminal Procedure which grants us jurisdiction to review an appeal "... from the judgment rendered on the hearing on application under habeas corpus....” We conclude that we may not because the district court had no jurisdiction to decide Duplechin’s post-conviction writ. Coronado v. State, 617 S.W.2d 265 (Tex.Crim.App.1981). Under this record only the Court of Criminal Appeals, in the exercise of its original constitutional and statutory habeas corpus jurisdiction (Article 5, Section 5, Texas Constitution and Articles 11.05 and 4.04, Texas Code of Criminal Procedure), can decide the grounds alleged in Duplechin’s petition for writ of habeas corpus. Smith v. State, 486 S.W.2d 374 (Tex.Crim.App.1972); Ex parte Payne, 618 S.W.2d 380 (Tex.Crim.App. 1981). I respectfully suggest that the Court of Criminal Appeals could have properly exercised its original habeas corpus jurisdiction in this instance and decided Du-plechin’s grounds incorporated in his petition for habeas corpus. Rather than so doing, that honorable court has vacated our judgment, thus “unfinding” facts we found on the appeal, viz., that the petitions for writ of habeas corpus with the indictment in Cause No. 172145 attached thereto, were not a part of the appellate record. In so doing I assume that the Court of Criminal Appeals implicitly found that such documents were a part of the record as a matter of law because Section 6 of Article 5 of the Texas Constitution provides that the “decision of the courts of appeal shall be conclusive on all questions of fact brought before them on appeal or error.”

I further suggest, that since the courts of appeal have acquired original appellate jurisdiction in all criminal cases, other than capital cases where death is the punishment, by virtue of the 1980 amendments to Section 6 of Article 5 of the Texas Constitution, that the legislature, pursuant to its authority under such section, should confer on the courts of appeal both original and Section 11.07 habeas corpus jurisdiction in such criminal cases. Such jurisdiction should be concurrent with the jurisdiction of the Court of Criminal Appeals. Armed with such habeas courpus jurisdiction and following the lead of the Court of Criminal Appeals as to the propriety of the exercise of such jurisdiction in any given case, the courts of appeal would then be empowered to see that substantial justice is accomplished expeditiously. For then, we could follow Smith v. State, 486 S.W.2d 374; Ex parte Payne and Coronado v. State, all supra, in the disposition of cases on grounds raised on direct appeal, as well as by writs of habeas corpus presented simultaneously. Such legislation appears to be needed since the vast majority of criminal appeals are now filed in the courts of appeal.

The foregoing portions of this opinion were written without any intention of exhibiting disrespect for the Honorable Court of Criminal Appeals or any judge thereof, but as an expression of respect for orderly and disciplined appellate procedures conforming to constitutional and statutory requirements.

Now to address Duplechin’s grounds of error. As earlier noted, Duplechin was indicted in Cause No. 172145 under the provisions of Article 489c of the former Texas Penal Code 1925 as amended by Acts of the 61st Legislature. Such article read in part:

“No person who has been convicted of a felony involving an act of violence may possess away from the premises upon which he lives a prohibited weapon or a firearm having a barrel less than twelve inches in length.
“ ‘Prohibited weapon’ means any weapons specified by Article 483, Penal Code, of the Texas 1925 as amended.”

Article 483 of the then existing Penal Code provided in part: “(a) any person who shall carry on or about his person ... any pistol ... shall be punished_” Thus it is clear that the indictment in Cause No. 172145 specifically alleged that Duplechin possessed a prohibited weapon. Duplechin’s argument to the contrary is without merit and ground two is properly overruled.

In his first ground of error Duplechin argues that because the indictment in Cause No. 172145 fails to allege the words that Duplechin was “previously convicted of a felony involving an act of violence” such indictment is fundamentally defective, citing Mendoza v. State, 460 S.W.2d 145 (Tex.Crim.App.1970), and Waffer v. State, 460 S.W.2d 147 (Tex.Crim.App.1970). In both Mendoza and Waffer the prior felony alleged under Article 489c, as it existed prior to the 1969 amendments to Section 1 thereof, was burglary. I do not consider such cases pertinent here.

In our case the indictment in Cause No. 172145 alleges the felony offense of assault with intent to murder in the following language:

“... that John Earl Duplechin ... was then and there a person who had previously been convicted of assault to murder with malice, a felony, to-wit, the said John Earl Duplechin was duly and legally convicted on the 21st day of March A.D. 1968 in the 168th District Court of Harris County, Texas, in Cause No. 125510 of said offense of assault to murder with Malice, a felony....” (Article 1160, Texas Penal Code 1925 as amended.)

In Mena v. State, 504 S.W.2d 410 (Tex. Crim.App.1974), the defendant challenged the sufficiency of the evidence to support his conviction for violation of Article 489c, claiming the evidence was insufficient to demonstrate that the underlying felony conviction of robbery was a felony involving an act of violence. The Court of Criminal Appeals overruled such ground of error and held that robbery is a felony involving an act of violence. Id. at 414. In Scott v. State, 571 S.W.2d 893 (Tex.Crim.App.1978), the court upheld the defendant’s conviction against his contention that the evidence was insufficient to show that robbery by assault was a felony involving violence or threatened violence under Section 46.05(a), Texas Penal Code, stating that robbery by assault “... is a felony involving violence or threatened violence against a person as a matter of law.” The reversal in Tew v. State, 551 S.W.2d 375 (Tex.Crim.App.1977), cited by Duplechin resulted because the indictment under Section 46.05(a), Texas Penal Code Ann. (Vernon 1974), did not allege a culpable mental state as required by Section 6.02(a)(b) and (c), Texas Penal Code Ann. (Vernon 1974). The prior felony conviction alleged in the indictment was “burglary, an act of violence....” The trial court in Tew, supra, instructed the jury to the effect that burglary was a felony involving violence or threatened violence to persons and property. Judge Onion writing for the full court noted that in the event the case should be retried on a new indictment that it was error for the trial court to give such instruction because burglary does not “per se” involve violence and whether a felony involves violence depends on the facts and circumstances of the case, citing Powell v. State, 538 S.W.2d 617 (Tex.Crim.App.1976).

The State argues that the allegation of the indictment in Cause No. 172145 that defendant had a prior conviction of “assault to murder with malice” was a sufficient allegation that the felony alleged involved an act of violence. I agree. I would expressly hold that assault with intent to murder with malice (Article 1160, Texas Penal Code 1925 as amended) is a felony involving an act of violence as a matter of law. Scott v. State; Mena v. State; supra. If a felony involves violence as a matter of law, the allegation of the offense, as here, inherently includes the allegation that it is a felony involving an act of violence. Stated another way, and in language used by Judge Onion in Tew, assault with intent to murder with malice does per se involve an act of violence. The allegations in the indictment in Cause No. 172145 were therefore sufficient to allege an underlying felony involving an act of violence. Defendant’s first ground of error is properly overruled.

Duplechin by his third ground complains of another infirmity in the indictment under review, viz., that it fails to allege a culpable mental state, thus voiding his conviction in said cause. Duplechin again relies on Tew v. State, supra, in support of his contention. Of course, Tew v. State was decided after the effective date of the new penal code and Section 6.02 thereof. Defendant’s counsel ably argues, however, that we should strike down the indictment in question for want of the allegation of a culpable mental state because the provisions of Section 6.02 represent a codification of former ease law, citing Vaughn v. State, 86 Tex.Cr.R. 255, 219 S.W. 206 (1920), and Miles v. State, 52 Tex.Cr.R. 561, 108 S.W. 378 (1908). Vaughn involves an appeal from a conviction for selling adulterated meats contrary to provisions of Chapter 2 of Title 12 of the then existing penal code, known as the “Pure Food Law of Texas.” (Article 704, et seq. of the Penal Code.) In Miles, the appeal was from a conviction for unlawfully carrying a pistol. In both cases reversal resulted from the error of the trial court in refusing to submit the defendant’s requested charge on mistake of fact. Neither decision supports Duplechin’s contention under this ground of error.

I would expressly hold that a culpable mental state was not an element of the offense of possession of a prohibited weapon by persons convicted of certain felonies as denounced by Article 489c,. and hence the indictment in Cause No. 172145 is not subject to the attack made in Duplechin’s third ground of error.

The constitutionality of former Article 489c has been upheld on numerous occasions contrary to Duplechin’s contentions. Castillo v. State, 411 S.W.2d 741 (Tex. Crim.App.1967), and Elliott v. Beto, 419 F.2d 128 (5th Cir.1969).


author: SHUMPERT, Justice.

text:
    Mart ARMSTRONG, Appellant, v. Arnold N. ABLON d/b/a Spanish Steppes Apartments, Appellee.
    No. 05-83-00600-CV.
    Court of Appeals of Texas, Dallas.
    June 20, 1984.

      Wayne Ames, Plano, for appellant.
    Michael Buchanan, Dallas, for appellee.
    Before STEPHENS, STEWART and SHUMPERT, JJ.
   SHUMPERT, Justice.

This is an appeal from a summary judgment granted in favor of appellee, Arnold Ablon, d/b/a Spanish Steppes Apartments, on the basis of the statute of limitations, TEX.REV.CIV.STAT.ANN. 5526, § 4 (Vernon Supp.1984). In six points of error, appellant Armstrong contends that the trial court erred in granting the summary judgment because: the original suit was involuntarily dismissed; the abandonment of the original suit was satisfactorily explained, and thus equity must toll the statute; the statute was tolled by TEX.REV. CIV.STAT.ANN. art. 5539a under the trial court’s order to dismiss without prejudice; the trial court divested itself of jurisdiction by denying reinstatement, and therefore extended the limitations period under article 5539a; and the trial court’s order nunc pro tunc is not a final order. We disagree with Armstrong’s contentions, and accordingly, we affirm the summary judgment.

Armstrong filed suit against Ablon on February 11, 1981, for personal injuries that allegedly occurred on June 19, 1980. The suit was dismissed with prejudice on September 3, 1982, because of Armstrong’s failure to comply with the trial court’s order of May 27, 1982, to produce documents for discovery. On September 28, 1982, the trial court entered an order nunc pro tunc, stating that the dismissal was without prejudice. Armstrong then filed a motion to reinstate the cause which was denied. Armstrong refiled the cause of action on October 6, 1982, two years, three months, and seventeen days from the date of his alleged injury. ■ Ablon filed a motion for summary judgment which was granted based on the statute of limitations.

The statute of limitations in this suit is prescribed by TEX.REV.CIV.STAT.ANN. art. 5526, § 4 (Vernon Supp.1984), which states that an action for injury done to the person of another shall be commenced within two years after the cause of action has accrued. The gist of Armstrong’s six points of error, is that the filing of the original suit on February 11, 1981, well within the limitation period, tolled the running of the statute.

Armstrong initially argues that the statute of limitations could not continue to run as if no suit had been filed because the suit was involuntarily dismissed. We disagree. This suit was dismissed under TEX. R.CIV.P. 170 (Vernon 1976) because of Armstrong’s failure to comply with the court’s order to produce documents for discovery. His motion for reinstatement was denied. We hold that dismissal under Rule 170 is the equivalent, for limitations purposes, of dismissal for want of prosecution with the result that limitations ran as if the suit had never been filed. Shaw v. Corcoran, 570 S.W.2d 96, 98 (Tex.Civ.App.—Austin 1978, no writ). Were the rule otherwise, plaintiffs could delay the progress of actions by not cooperating with discovery, and could essentially lengthen the available limitations period because they could refile their suits at no disadvantage long after limitations had run. We cannot approve of such a result. Accordingly, we hold that the statute of limitations was not tolled by the pendancy of Armstrong’s first lawsuit.

Armstrong argues, however, that equity tolled the running of the statute because he gave an adequate explanation for the abandonment of his suit. We disagree for two reasons. First, he did not raise this argument in his answer to Ablon’s motion for summary judgment, and therefore, he cannot raise it for the first time on appeal. City of Houston v. Clear Creek Basin, 589 S.W.2d 671, 678 (Tex. 1979). Second, contrary to his assertions, there is no explanation given for Armstrong’s failure to comply with the trial court’s order. Such an explanation is required, and it must be of a nature sufficient to show that the abandonment was not in fact voluntary. Irwin v. Basham, 507 S.W.2d 621, 625 (Tex.Civ.App.— Dallas 1974, writ ref’d n.r.e.). We conclude, therefore, that his abandonment of the suit was voluntary. Where a plaintiff voluntarily abandons his suit, the statute of limitations is not interrupted during the period when the suit was pending. Florida State Bank v. Southwestern Life Ins. Co., 133 Tex. 243, 127 S.W.2d 188, 192-93 (1939).

Armstrong next contends that the provisions of TEX.REV.CIV.STAT.ANN. art. 5539a (Vernon 1958) tolled the running of the statute of limitations. He reasons that by its order denying reinstatement of his original suit, the trial court divested itself of jurisdiction, thereby tolling the statute under article 5539a. We disagree with Armstrong’s contention. Article 5539a provides that when an action is dismissed for want of jurisdiction by one court, it may be refiled in a court having jurisdiction if it is refiled within 60 days of the dismissal. That statute further provides that the running of limitations will be tolled for the period between dismissal and refiling, up to 60 days. Article 5539a applies only when dismissal of the initial action is for lack of jurisdiction. Oram v. General American Oil Co. of Texas, 503 S.W.2d 607, 609 (Tex.Civ.App.— Eastland 1973), writ ref'd per curiam, 513 S.W.2d 533 (Tex.1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1355, 43 L.Ed.2d 441 (1975). Although the trial court denied Armstrong’s motion to reinstate the cause of action, it dismissed for failure to comply with discovery, not for lack of jurisdiction. The trial court had jurisdiction over the suit. Consequently, article 5539a does not apply, and the statute was not tolled. Oram, 503 S.W.2d at 610.

Armstrong next contends that the trial court’s order, nunc pro tunc, dismissing the suit was not a final order because it was a dismissal without prejudice. We fail to see how this argument is applicable to the running of the statute of limitations, and Armstrong has not shown us how the statute would be tolled if this were the case. Further, the order disposed of all parties and all issues before the court and is a final order. Cf. First National Bank v. Fox, 121 Tex. 7, 39 S.W.2d 1085 (Tex. Comm’n App.1930, opinion adopted). Consequently, we find no error.

In a summary judgment case, when the defendant has established that a case is barred by the statute of limitations and the plaintiff has failed to avoid its application, a defendant is entitled to prevail upon his demonstration that the claim is barred. Oram, 503 S.W.2d at 610. Armstrong has failed to explain or excuse his delay by specifying any proof which would change the result. Accordingly, we affirm the summary judgment granted against him.

      . Repealed by order Dec. 5, 1983, eff. April 1, 1984. See, now, TEX.R.CIV.P. 215.


author: SEARS, Justice.

text:
    NOWSCO SERVICES DIVISION OF BIG THREE INDUSTRIES, INC., Appellant, v. Chris D. LASSMAN, Appellee.
    No. C14-82-728CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 12, 1984.
    Rehearing Denied Sept. 13, 1984.
    Second Rehearing Denied Jan. 24, 1985.

      Theodore Goller, Fulbright & Jaworski, Henry P. Giessel, Talbert, Giessel, Stone, Barker & Lyman, Mayo J. Thompson, Houston, for appellant.
    William R. Edwards, Edwards & Perry, Corpus Christi, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Chris Lassman, Appellee, brought a maritime negligence action against Jaray, Inc., Nitrogen Oilwell Service Company, Fairbanks Well Service (Fairbanks), Mitchell Energy Production Corporation (Mitchell), Mitchell Energy Corporation, Intercoastal Operating Company, Intercoastal Industries, Inc. and Nowseo Services Division of Big Three Industries, Inc., Appellant, for personal injuries sustained by him while working as a Jones Act seaman on an oil well drilling barge in September, 1978. Fairbanks cross-claimed against Mitchell and Appellant for indemnity and contribution. Mitchell cross-claimed against Fairbanks and Appellant. Appellant cross-claimed against Fairbanks but was denied leave to file a late cross-claim against Mitchell. The trial court directed a verdict in favor of Fairbanks and Mitchell.

TEX.REV.CIV.STAT.ANN. art. 2212a (Vernon Supp.1984), gives a defendant the opportunity to request issues concerning the negligence of co-defendants if such issues are supported by pleadings. In this case, however, Appellant failed to timely file any pleadings against Mitchell and an issue inquiring of Mitchell’s negligence, if any, was not submitted. Consequently, Appellant was not awarded contribution or indemnity from Mitchell and is therefore liable for the entire $745,759.46 awarded Appellee by the jury. Appellant’s Motion for New Trial and/or Remittitur was overruled by the trial court. On appeal, Appellant does not contest its liability to Appellee. Rather, Appellant argues the trial court erred in granting Mitchell’s Motion for Directed Verdict, claims a statutory right to contribution from Mitchell, although Mitchell was dismissed from the suit and Appellant had no pleadings against Mitchell, and contests the failure of the trial court, to grant a new trial and/or the court’s refusal to order a remittitur. We affirm.

Appellee was injured while working as a derrickman for Fairbanks, the drilling contractor in workover operations on Mitchell’s oil lease. Mitchell contracted with Appellant to send a coil tubing unit to the offshore rig. The unit was to run a continuous length of one-inch diameter steel tubing into the hole and inject nitrogen through the tube in order to flush debris out of the well. The accident occurred as Appellant attempted to move the injector head from a barge to the well platform with a cherrypicker. The cherrypicker had a hydraulic boom which both rotated and telescoped. Appellant used a chain on the cherrypicker which was designed to stabilize the injector head but not to lift it. The chain broke in the lifting attempt and the injector head fell, coming to rest partially on top of the pump shed on the platform. The crane operator then attempted to swing the boom laterally in order to free the head from the shed. Since the boom was telescoped to its fullest and could not lift the head straight up, Appellant attempted to swing the boom to move the head. Appellee saw a piece of coil tubing on the truck, which he thought might interfere with the lateral movement of the crane’s boom, and was attempting to move the tubing when the injector head swung back and struck the rear of the truck. The truck was overturned and Appellee became entangled in the hydraulic hoses and was pulled into the bay. A roughneck dove in the bay, disentangled Appellee from the hydraulic lines and pulled him to safety. Appellee sustained a compression fracture of the fourth and fifth vertebrae in the thoracic area of the back and was hospitalized for two or three weeks.

In its first point of error, Appellant contends that the trial court erred in granting Mitchell a Directed Verdict, alleging that sufficient evidence was introduced from which the jury could have found Mitchell liable to Appellee on theories of negligence or unseaworthiness. It argues that it has standing to appeal from the Directed Verdict in favor of Mitchell because it is an aggrieved party which lost its statutory right to contribution from a joint tortfeasor when the Directed Verdict was granted. We disagree. Appellant has no standing to appeal from the judgment for Mitchell because it had no trial pleadings against Mitchell.

TEX.REV.CIV.STAT.ANN. art. 2212a, § 2(g) (Vernon Supp.1984), provides:

All claims for contribution between named defendants in the primary suit shall be determined in the primary suit, except that a named defendant may proceed against a person not a party to the primary suit who has not effected a settlement with the claimant.

This section changed prior law by making a cross-claim for contribution mandatory when the cross-claimant has been made a party to the suit by the plaintiff. See Helicoptoros Nacionales de Colombia, S.A. v. Hall, 616 S.W.2d 247, 252 (Tex.Civ. App.—Houston [1st Dist.] 1981), rev’d on other grounds, 638 S.W.2d 870 (Tex.1982), rev’d, — U.S. -, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984); DORSANEO, TEXAS LITIGATION GUIDE § 291.04[2][a]. Contribution from joint tortfeasors in negligence actions is a statutory remedy in Texas and, like any other claim, must be supported by sufficient pleadings. As noted in Beaumont Coca Cola Bottling Co. v. Cain, 628 S.W.2d 99, 101 (Tex.Civ.App.— Beaumont 1981, writ ref’d n.r.e.) (emphasis in original), “all rights of contribution must be pleaded and determined in the primary suit or be barred unless such right comes within the language found in the last phrase of the subsection”. Since Appellant had no pleadings against Mitchell, we overrule point of error one.

In its second point of error, Appellant claims that the trial court erred in failing to grant a new trial or to order a remittitur because the verdict and judgment is manifestly excessive. Appellant compares amounts awarded to plaintiffs in other cases and concludes that a remittitur must be ordered because Appellee’s injury is less severe. We disagree with Appellant’s conclusions as to the severity of Appellee’s injuries and as to what the applicable standard of review is.

The basic standard of review was articulated in Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959). It stated:

‘All the Court of Civil Appeals can do, and all that is required of it to do ... is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation for the injury sustained, and treat the balance as excess ... [Having] decided upon an amount that would be reasonable compensation ... it should authorize a remittitur of the excess ... in accordance with its sound judgment.’

Id. 159 Tex. at 606, 324 S.W.2d at 840 (cite omitted). Later cases have amplified this holding. In McMillin v. L.D.L.R., 645 S.W.2d 836, 841 (Tex.App.—Corpus Christi 1982, writ ref d n.r.e.), the court stated that in applying this standard, only evidence favorable to the jury’s award is to be considered by the court. See also Wharf Cat, Inc. v. Cole, 567 S.W.2d 228 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.). In Amoco Production Co. v. Thompson, 657 S.W.2d 824, 831 (Tex.App.—Corpus Christi) (opinion on Motion for Rehearing) (emphasis added), rev’d, Ideal Lease Service, Inc. v. Amoco Production Co., 662 S.W.2d 951 (Tex.1983), the court also noted that:

The measure of damages in a personal injury case is not subject to precise mathematical calculation. Rosenblum v. Bloom, 492 S.W.2d 321, 325 (Tex.Civ. App.—Waco 1973, writ ref’d n.r.e.); Houser v. Sunshine Laundries & Dry Cleaning Corp., 438 S.W.2d 117, 120 (Tex.Civ.App.—San Antonio 1969, writ ref’d n.r.e.). Matters of past and future pain and suffering, disfigurement and physical impairment are necessarily speculative, and it is particularly within the province of the jury to resolve these matters and determine the amounts attributable thereto. Rosenblum v. Bloom, supra. Each case must be measured by its own facts, and considerable latitude must necessarily be vested in the jury. Id.; Houser v. Sunshine Laundries & Dry Cleaning Corp., supra.

In Allen v. Whisenhunt, 603 S.W.2d 242 (Tex.Civ.App.—Houston [14th Dist.] 1980 writ dism’d), this court held that absent some evidence of jury bias or prejudice, a court “must give every intendment to the evidence supporting the verdict” and stated that the amount the trial or appellate court would have awarded is irrelevant. Id. at 245. Finally, in Texas Farm Products Co. v. Stock, 657 S.W.2d 494 (Tex.App.—Tyler 1983, writ ref’d n.r.e.) (opinion on Motion for Rehearing), the court stated that if passion, prejudice or other improper motivation which controlled the jury’s award of damages is affirmatively shown, the case must be reversed and remanded. Absent such a showing, a remittitur is proper. The court explained that the mere exces-siveness of the verdict is insufficient to establish that the jury was motivated by passion and prejudice unless the amount awarded is shocking to the judicial conscience. In that case, reversal and a new trial is proper. Id. at 505.

We must therefore review the evidence concerning Appellee’s injuries. As stated, Appellee was injured while working as a derrickman on an offshore oil rig. He became entangled in the hydraulic hoses of the crane operated by Appellant and was pulled underwater in the bay. Appellee testified that he held his breath for as long as he could, involuntarily inhaled water and then passed out. A roughneck saved Ap-pellee’s life by diving into the bay, freeing him and pulling him to safety. Appellee suffered a 70-75% compression of his fourth thoracic vertebra and was in the hospital for several weeks as a result of his injuries. For some time after the injury, he had recurring nightmares about drowning.

Appellee testified that he enjoys water-skiing and motorcycle riding but has discontinued both activities on the advice of his doctor. He has been cautioned that he could further injure himself if he continues to participate in these activities, which injury could lead to paralysis or inability to work. Appellee has been able to continue working because he chooses to tolerate the pain he suffers daily.

Appellee’s physician testified that Appel-lee had early symptoms indicating an injury to his spinal cord which could have resulted in weakness or complete paralysis of his legs. Although these results never manifested, re-injury could result in paralysis. The physician further testified that Appellee’s vertebra will never regain its normal height, that the problem cannot be corrected surgically and that he is in the best condition he ever will be in. His symptoms will be similar for the next ten to fifteen years. However, they will worsen as he ages because his injury will aggravate normal degenerative problems. As this occurs, the intensity of pain will increase. Additionally, any increase in current activities will trigger a higher level of pain. He stated that Appellee cannot avoid the pain associated with working but that he will be able to continue working so long as he can, or will, tolerate the pain.

Under these facts, the $745,759.46 awarded to Appellee does not shock our conscience. We find no evidence of jury prejudice or passion. Further, we do not believe the verdict is excessive or that a remittitur is proper; rather, the facts developed at trial convince us that the evidence is sufficient to support the jury’s award. We overrule point of error two.

The judgment of the trial court is affirmed.

OPINION ON SECOND MOTION FOR REHEARING

On Appellant’s Second Motion for Rehearing, Leave to File the Second Motion for Rehearing is hereby granted, the Second Motion for Rehearing is hereby overruled, and the original opinion affirming the judgment of the trial court is herein reaffirmed. However, the following opinion is necessary due to the complexity of the problems presented by this Motion for Rehearing.

On July 12, 1984, this court rendered its opinion affirming the judgment of the trial court. On July 27, 1984, Appellant received leave to file and filed a Motion for Rehearing. On September 13, 1984, this court, without opinion, overruled Appellant’s first Motion for Rehearing and the clerk’s office sent notice to the attorneys for the three appellees. However, Appellant’s name was inadvertently removed from the clerk’s computerized mailing list, and Appellant received no notification that this court had overruled its Motion for Rehearing.

On November 5, 1984, in a telephone conversation with an attorney for one of the Appellees, Appellant was advised for the first time that his Motion for Rehearing had been overruled. On the following day, November 6, 1984, Appellant filed a Motion for Recall of Mandate and Second Motion for Rehearing, and Appellant later filed a Motion for Leave to File the Second Motion for Rehearing. In addition to the allegation that Appellant failed to receive notification by the clerk’s office that the court overruled its Motion for Rehearing, Appellant further alleges that he has been attorney of record for Appellant since the party’s original answer was filed in district court. Appellant’s attorney alleges that at all times his name has appeared on all legal instruments and briefs filed for or on behalf of Appellant in this court as well as in the trial court. No other attorney has at any time represented Appellant, nor was any other attorney at any time subject to notice of any actions taken by this court.

This court has investigated the allegations of the attorney for Appellant and find them to be true and correct. We have discovered no reason for the deletion of Appellant’s attorney’s name from the clerk’s mailing list, nor have we been able to determine the exact point in time at which his name was removed from said list.

At the time of the filing of Appellant’s Second Motion for Rehearing, fifty-three days had elapsed since entry of the court order overruling Appellant’s first Motion for Rehearing. The time for filing application for Writ of Error to the Supreme Court of Texas has therefore expired. Tex. R.Civ.P. 468. See also Reynolds v. Dallas County, 146 Tex. 372, 207 S.W.2d 362 (1948), for an example of refusal to expand time for filing writ of error even though good cause was shown.

We find that the loss of such a right was not occasioned by any mistake, neglect or fault on the part of Appellant or its attorney. We further find that Appellant will be greatly prejudiced and deprived of due process of law by the loss of his right to apply to the Supreme Court for a Writ of Error unless this court accepts the late filing of Appellant’s Second Motion for Rehearing.

An extension of time may be granted for the late filing of a motion for rehearing if the party seeking the extension files a motion reasonably explaining the need therefor within fifteen (15) days of the date the opinion was rendered. Tex.R.Civ.P. 21c and 458(a). See B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex.1982), for a discussion of the applicability of Rule 21c. See also Tex.R.Civ.P. 5. We are aware that Rule 21c has been held inapplicable to a second motion to extend time for filing the statement of facts, using the rationale that the first motion to extend was made timely pursuant to Rule 21c and the court retained jurisdiction to consider the second motion to extend although it was not filed within fifteen (15) days of the time allowed by the first extension. Gibraltar Savings Association v. Hamilton Air Mart, Inc., 662 S.W.2d 632 (Tex.App.—Dallas 1983, no writ). We decline to apply this rationale to motions for rehearing.

A study of the notice requirement of the Texas Rules of Civil Procedure reveals that Rule 456 imposes a duty on the clerk of each Court of Appeals to mail or deliver a copy of a decision of the court to the clerk of the trial court, the trial judge, and to one attorney for plaintiff and one attorney for defendant. It further provides:

If [sic] shall also be the duty of the clerks of said appellate courts, within ten days after rendition of a decision, to mail or deliver to one of the attorneys for the plaintiffs and one of the attorneys for the defendants a copy of the judgment as entered in the minutes of the appellate court.

Rule 456 was changed by Amendment; effective January 1,1976, to require clerks of appellate courts to mail or deliver copies of judgments as well as opinions to attorneys. Further, Rule 457 provides:

When the Court of Appeals renders judgment or grants or overrules a motion for rehearing, the clerk shall immediately give notice to the parties or their attorneys or record of the disposition made of the cause or of the motion, as the case may be. The notice shall be given by first-class mail and be so marked as to be returnable to the clerk in case of non delivery.

We have been unable to find any case history or any interpretation or application of Rule 456 or Rule 457. However, we believe the legislative intent was to prevent such an injustice as is presented to us in this case.

The trial courts have express power to protect a party from denial of due process by failure to receive notice of a final order. Tex.R.Civ.P. 306a(3), provides that the clerk of a court shall immediately give notice to the parties of the signing of any appealable order. And further, Tex.R. Civ.P. 306a(4), provides that when the clerk fails to notify a party adversely affected by the signing of an appealable order, the time for appealing or filing any motions or bonds in connection therewith shall begin on the date actual notice is received.

We believe this court has inherent power to prevent a denial of due process. We believe further that the failure to provide a tolling of appellate timetables, when the clerk fails to notify a party pursuant to Rules 456 and 457, is an oversight on the part of the persons who drafted and amended these rules, and was in no way intended as a hole in the appellate process through which the inherent rights of due process could fall and be forever lost.

We therefore hold that the provisions of Rule 456 and Rule 457 are mandatory and impose a duty upon the clerk of an appellate court to notify the attorney of record for each party of any action by the court in rendering judgment or granting or overruling a motion for rehearing. We further hold that in the event the clerk of a court of appeals fails to provide such notice to the attorney of a party prior to the expiration of the time period for the next step in the appellate process, the time for taking any further steps in the appellate process in relation to the action taken by the court shall be tolled until such time as the attorney for the party has actual knowledge of the said action of the court of appeals. All time for filing requirements thereafter shall commence to run from the date of actual knowledge of the said action taken by the court of appeals.

We further hold that Appellant’s Second Motion for Rehearing was timely filed following notice that this court had overruled Appellant’s first Motion for Rehearing. To hold otherwise would constitute a denial of Appellant’s constitutional right to due process of law.

Leave to File Appellant’s Second Motion for Rehearing is granted and this court’s mandate heretofore issued is hereby ordered to be recalled. Appellant’s Second Motion for Rehearing is overruled. The original opinion of this court which affirmed the judgment of the trial court is hereby reaffirmed.

      . Thompson settled with Amoco after the court of appeals decision was rendered and was not a party to the Ideal appeal.


author: VANCE, Justice.

text:
    John STARZL, Appellant, v. Regina STARZL, Appellee.
    No. 05-82-01329-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 31, 1984.

      John D. Griggs, Pro Bono, Dallas, for appellant.
    H. Wayne Meachum, Dallas, for appellee.
    Before STEPHENS, VANCE and ALLEN, JJ.
   VANCE, Justice.

Plaintiff Regina Starzl brought suit in the trial court seeking enforcement of a foreign support judgment against her former husband, defendant John Starzl. After a non-jury trial, the trial court entered judgment for plaintiff based on its conclusion of law, inter alia, that the foreign judgment is entitled to full faith and credit and enforcement. Defendant’s challenge in this court is multifarious but is based primarily on the contention that there is insufficient evidence to establish that the foreign judgment is entitled to full faith and credit. We agree with this contention and, consequently, reverse and remand this cause.

Article IV, Section I of the United States Constitution (“the full faith and credit clause”) requires that each state give full faith and credit to the public acts, records and judicial proceedings of every other state. McLendon v. Todd-AO-Corp., 546 S.W.2d 653, 654 (Tex.Civ.App.— Beaumont 1977, no writ). A judgment rendered by a court of a sister state and properly proven is entitled to the same recognition and the same credit in this state as it would receive in the state where rendered. Baumgardner v. Southern Pac. Co., 177 S.W.2d 317, 319 (Tex.Civ.App.—El Paso 1943, no writ). Before the foreign judgment is entitled to recognition, however, the plaintiff has the burden to establish that the judgment sued upon is a valid, final and subsisting judgment. Harris v. Harris, 403 S.W.2d 445, 447 (Tex.Civ.App.—Houston 1966, writ ref’d n.r.e.).

Ordinarily, this burden is fulfilled by meeting the requirements of 28 U.S.C. § 1738 (1966). 28 U.S.C. § 1738 is intended to implement the full faith and credit clause of the United States Constitution by providing a uniform standard for the introduction into evidence of statutes and documents from judicial proceedings of another state. Noe v. State, 646 S.W.2d 595, 598 (Tex.App.—San Antonio 1983, pet. granted). Under that statute, where a plaintiff introduces a properly authenticated copy of a foreign judgment, he has established a prima facie case for enforcement of that judgment. McLendon, 546 S.W.2d at 654. An authenticated copy of the foreign judgment creates a presumption of the foreign judgment’s validity and its entitlement to full faith and credit. Hart v. Calkins Mfg. Co. Inc., 623 S.W.2d 451, 453 (Tex.Civ.App.—Texarkana 1981, no writ). Thereafter, the burden of attacking the judgment shifts to the defendant to bring forth reasons, e.g., a lack of in personam jurisdiction, why the foreign judgment should not be given full faith and credit. McLendon, 546 S.W.2d at 654.

The first question for this court to determine is-whether the judgment admitted before the trial court by plaintiff was properly authenticated as required by 28 U.S.C. § 1738 and therefore entitled to a presumption of validity. Section 1738 provides, in pertinent part, that:

The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestations of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form (emphasis added).

See Paschall v. Geib, 405 S.W.2d 385, 387 (Tex.Civ.App.—Dallas 1966, writ ref’d n.r. e.). It is undisputed that the judgment admitted in this cause does not contain a certificate from a judge of the court that the said attestation is in proper form and, thus, is not in compliance with 28 U.S.C. § 1738.

The judgment may, however, still be entitled to enforcement, despite the noncompliance with 28 U.S.C. § 1738. Satisfaction of the requirements of 28 U.S.C. § 1738 compels admission of items into evidence, but failure to meet them does not necessarily result in inadmissibility. Conformity with the evidentiary requirements of the state where the trial is being held will suffice. Noe, 646 S.W.2d at 598.

Article 3731a, Section 2 of the Texas Revised Civil Statutes permits the introduction into evidence in Texas courts of official documents and court records of other states and of this state as proof of the matter asserted therein, Noe, 646 S.W.2d at 598. In the present case, the judgment in evidence was not an original but a copy. In order for a copy of a judgment to be introduced under Article 3731a, Section 2, the judgment must also meet the proof requirements of Article 3731a, Section 4, which, similar to 28 U.S.C. § 1738, requires not only that the judgment of a court of another state be attested to by its official custodian but also that the judge of a court of record certify that such officer did have official custody. Hutchins v. Seifert, 460 S.W.2d 955, 957 (Tex.Civ. App.—Houston [14th Dist.] 1970, writ ref’d n.r.e.). Again, it is undisputed that the copy of the judgment admitted before the trial court does not contain a certification from the judge of a court of record that the official custodian did in fact have official custody of the judgment and, thus, is not in compliance with Article 3731a.

This next question, then, for this court to determine is the effect of plaintiffs failure to offer a judgment in compliance with either 28 U.S.C. § 1738 or Article 3731a. Plaintiff has taken the position in this Court that, if this failure was error, it was waived by defendant’s failure to object to its admission. While this does dispose of any of defendant’s complaints regarding the admissibility of the judgment, it does not address his complaints regarding the sufficiency of the evidence to establish that there is a judgment entitled to full faith and credit and enforcement.

Absent proper authentication, the judgment in the present case was hearsay and of no evidentiary value, even though it was admitted in evidence without objection. Hutchins, 460 S.W.2d at 957. See generally Byrd v. Texas Dept. of Human Resources, 625 S.W.2d 375, 376 (Tex.Civ.App.—San Antonio 1981, no writ) (“The trial court admitted in evidence the purported 1965 judgment of the Christian Circuit Court in Kentucky.... Such purported judgment is unverified, uncertified and unauthenticated. Although the appellant did not except specifically to the introduction of the document, the purported judgment was not entitled to confirmation; it constituted incompetent evidence”); Neff v. Johnson, 391 S.W.2d 760, 763-64 (Tex.Civ. App.— Houston 1965, no writ) (“The trial court admitted in evidence the purported 1950 judgment of the Court of Common Pleas ...” Such purported judgment is not certified in any manner, is unauthenticated, and bears no signature whatever. Although appellant did not except to the introduction of such purported judgment, it is of no probative value. Incompetent evidence cannot form the basis of a fact finding or of a judgment regardless of whether an objection to its introduction is lodged. A waiver by failure to object cannot convert incompetent evidence into competent evidence. As a result, there is insufficient evidence in the present case to establish that plaintiff has a foreign judgment entitled to full faith and credit and enforcement. On this basis, the judgment of the trial court is reversed and this cause remanded to the trial court for new trial.

      . This cause was tried on September 10, 1982, prior to the effective date of the Texas Rules of Evidence.

      . While authentication of a judgment of a sister state may also be accomplished by a witness who has compared the copy offered in the evidence with the original record entry thereof, Schwartz v. Vecchiotti, 529 S.W.2d 603, 604 (Tex.Civ.App. — Houston [1st Dist.] 1975, writ ref'd n.r.e.), the record does not reflect that plaintiff tried to authenticate her judgment in this manner.


author: DUGGAN, Justice.

text:
    Carol W. SEAMAN, Appellant, v. Margie B. SEAMAN, et al, Appellees.
    No. 01-84-0134-CV.
    Court of Appeals of Texas, Houston (1 Dist.).
    Nov. 1, 1984.
    Rehearing Denied Feb. 28, 1985.

      Mary M. Craft, Robert L. Lipstet, Dunn, Stern, Lipstet, Singer & Hirsch, Constance G. Decker, Dunn, Stern, Lipstet, Singer & Hirsch, Houston, for appellant.
    Larry B. Jackson, Houston, for appellees.
    Before DUGGAN, LEVY and DOYLE, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a summary judgment in favor of the appellee, the former wife of the deceased, against both the appellant, the deceased’s widow, and the in-terpleader, Philadelphia Life Insurance Company. The judgment awarded the former wife $68,000, the total amount of term life insurance proceeds due at the deceased’s death.

The Houston Port Authority maintained group life insurance coverage for its employees, including the deceased, Colman Seaman, through a policy issued by the interpleader. Seaman died on September 25,1982, and both his former wife, appellee Margie B. Seaman, and his widow, appellant Carol W. Seaman, made demand on Philadelphia Life for the proceeds of the policy. Philadelphia Life filed an inter-pleader action in the district court, implead-ing both claimants, and deposited into the registry of the coürt the $68,000 policy proceeds due as of the date of the deceased’s death.

Appellant based her claim to the policy proceeds on her status as the policy’s designated beneficiary. Appellee, who was divorced from the deceased approximately five years earlier, based her claim on the provisions of a 1977 divorce property settlement agreement. That agreement awarded appellee “all right, title and interest in and to any insurance policies, in effect as of date of separation of March 1, 1977, held or owned by Colvin Gregory Seaman.” Colvin Seaman thereafter married appellant on June 23, 1980, and executed a form changing the beneficiary of the policy from appellee to appellant on or about July 23, 1980. However, he retained appellee as the contingent beneficiary.

Following motions for summary judgment by both claimants, the trial court (1) granted summary judgment in favor of the appellee former wife against the appellant widow and the interpleader insurance company for the full amount of proceeds due at the time of the insured’s death, (2) denied the appellant’s motion for summary judgment against the appellee, and (3) entered a take-nothing judgment as to appellant’s counter-claim against the interpleader insurance carrier. Appellant brings two points of error.

In her first point of error, appellant contends that the trial court erred in granting appellee’s motion for summary judgment because an issue of fact exists as to whether the 1977 property settlement agreement gave appellee an interest in the life insurance policy in effect on the insured’s death in 1982.

Appellee’s affidavit in support of her motion for summary judgment stated, concerning the insurance policy at issue, as follows:

At the date of our separation, March 1, 1977, COLVIN GREGORY SEAMAN was insured by an insurance policy, Group Policies Numbers 872 and 873, Certificate Number 360, of which PHILADELPHIA LIFE INSURANCE COMPANY was the insurer.
On September 25, 1982, COLVIN GREGORY SEAMAN died. At the time of his death, the insurance policy issued by PHILADELPHIA LIFE INSURANCE COMPANY was in full force and effect. The total benefits payable under such policy as of September 25, 1982, were SIXTY EIGHT THOUSAND AND NO/100 DOLLARS ($68,000 00).

Attached to appellee’s affidavit was a copy of the 1977 Property Settlement Agreement between her and the deceased, which contained the following pertinent language:

II.
Marital Property Set Aside to Wife Wife shall own, have and enjoy as her separate property and estate the properties, rights and interests set forth on Schedule I attached hereto and made a part hereof for all purposes, and Wife is hereby vested with and husband is hereby divested of all right, title and interest in and to the property and interests described on Schedule I.
Schedule I
Wife’s Property
10. All right, title and interest in and to any insurance policies, in effect at the time of date of separation, March 1, 1977, held or owned by Colvin Gregory Seaman. (Emphasis added).

The questions presented by this point of error are: (1) whether the appellee former wife’s evidence was legally sufficient to establish her right to the policy benefits, and, if not, (2) whether the appellant widow was required to bring to the trial court’s attention grounds why the appellee was not entitled to these benefits.

A summary judgment movant has the burden of proof to show that as a matter of law there is no material fact issue. The summary judgment must stand on the merits of its own supporting evidence. If legally insufficient, a summary judgment cannot be granted, even by default. Lloyd v. Holland, 659 S.W.2d 103, 105 (Tex.App.—Houston [14th Dist.] 1983, no writ).

While the nonmovant must expressly present to the trial court any reasons seeking to avoid the movant’s entitlement to judgment, an exception applies to the situation of an attack on the legal sufficiency of the grounds for summary judgment expressly raised by the movant. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

When counter-motions for summary judgment are properly before the court at the time judgment is rendered, all evidence accompanying appellant’s motion is to be considered in deciding appellee’s motion and vice versa. DeBord, v. Muller, 446 S.W.2d 299, 301 (Tex.1969); Sorsby v. State, 624 S.W.2d 227, 230 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ).

At a trial of this case, the appellee would be required to prove the existence of the insurance policy and the provisions of the property settlement agreement awarding her the policy benefits. While appellee failed to introduce proof of the policy of insurance at the summary judgment hearing, appellant did attach a copy of the policy in her own motion for summary judgment. In introducing a copy of the policy, the appellant thus established the first portion of appellee’s burden of proof, i.e., the existence of the policy. Debord v. Muller, supra; Sorsby v. State, supra.

However, appellee neither alleged in her affidavit nor proved that the specific insurance policy in question was “held or owned” by the deceased “at the time of date of separation,” such as would be required to set aside the policy to appellee under the agreement. To the contrary, the copy of the insurance policy introduced as summary judgment evidence showed that the deceased’s employer, and not the deceased, held or owned the policy. Appel-lee’s evidence was thus legally insufficient to support the summary judgment in that appellee failed to present and conclusively prove one of the essential elements of her cause of action as a matter of law, i.e., that the insurance policy in question was “held or owned” by the deceased at the time of his separation from the appellee. Tex.R. Civ.Pro. 166-A(c). Wilcox v. St. Mary’s University of San Antonio, Inc., 531 S.W.2d 589, (Tex.1975). Further, it was not necessary for the appellant to bring this defect to the attention of the court below, since the issue goes to the legal sufficiency of the grounds of the summary judgment, and is not an issue which the non-moving party needed to raise to avoid the appellee’s entitlement to judgment. See City of Houston v. Clear Creek Basin Authority.

If appellant’s first point of error had not required our reversal of the summary judgment, her alternative first point of error would compel it. Alternatively to her first point, appellant urges that as a matter of law she is entitled, as the designated beneficiary of the life insurance policy, to that portion of the proceeds which accrued after the effective date of appellee’s and the deceased insured’s 1977 divorce.

Appellant contends that a material question of fact exists in that the Property Settlement Agreement is ambiguous and susceptible to more than one meaning as to who is entitled to benefits accruing after the date of appellee’s separation from the deceased. Conversely, appellee asserts that the language of the agreement clearly and unambiguously shows that the agreement divested the deceased of any interest in the subject policies, not just the amount in effect on the date of separation.

Appellant’s response to appellee’s motion for summary judgment included as evidence a letter to appellant from Alton B. Landry, personnel manager of the deceased’s employer, which set out the amount of proceeds due under the insurance policy on various dates. The letter shows that, as of the date of the deceased’s divorce from appellee on December 12, 1977, the total amount of life insurance in effect was $44,000; as of the date of his marriage to appellant on June 27, 1980, the total amount in effect was $54,500; and, as of the date of his death on September 25, 1982, the total amount of insurance in effect was $68,000.

When a question exists as to the true meaning of a vital statement of fact contained in an instrument, the primary concern of courts is to ascertain and give effect to the intentions of the parties as expressed in the instrument. Citizens Nat’l Bank in Abilene v. Texas & P. Ry. Co., 136 Tex. 333, 150 S.W.2d 1003 (1941). To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all provisions so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). If a written instrument is so worded that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). However, when an instrument's meaning is uncertain and doubtful, or is reasonably susceptible to more than one meaning, it is ambiguous, and extraneous evidence is admissible to determine the true meaning. R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex.1980).

A 1975 amendment to art. 23(1), Tex.Rev.Civ.Stat.Ann. (Vernon 1969), enlarged the statutory definition of “property” to include “insurance policies and the effects thereof.” The right to receive insurance proceeds payable at a future but uncertain date is “property” in the nature of a chose in action which matures at the insured’s death. Brown v. Lee, 371 S.W.2d 694, 696 (Tex.1963), Clearly, the proceeds of insurance in effect on the date of separation of Margie Seaman and Colvin Seaman were community property and subject to division. However, the right to future proceeds was conditioned upon the continuous payment of policy premiums, and the un-matured chose in action was dependent upon the continuing effect of the policy. Thus, an ambiguity exists as to whether Colvin Seaman’s divestiture of his interest in this policy by the property settlement agreement applied (1) to future rights in the policy benefits, and (2) to the policy itself following the end of the term in effect at the time of the divorce.

Appellee cites several cases wherein either a term or a whole life insurance policy on the life of one spouse has been the subject of divorce decrees. However, the policies of insurance in these cases were particularly described and specific provisions were made in the decree requiring the insured spouse not only to keep the policy in force and effect by the payment of premiums for the benefit of minor children of the marriage, but also to designate these children as the beneficiaries of the policy. See Roberts v. Roberts, 560 S.W.2d 438 (Tex.Civ.App.—Beaumont 1977, writ ref’d n.r.e.); Wunsche v. Equitable Life Assur. Soc., 551 S.W.2d 84 (Tex.Civ.App.—1977, writ ref’d n.r.e.); O’Neill v. Connecticut Mutual Life Ins. Co., 544 S.W.2d 741 (Tex.Civ.App.—Houston [1st Dist.] 1976, writ ref’d n.r.e.).

The property settlement agreement between the deceased and appellee here in question makes no provision for the payment of future premiums in order to keep the policy in force and effect. Likewise, there was no provision in the agreement that appellee was to be kept as the designated beneficiary of the policy. Absent such requirements and duties on the part of the deceased, an ambiguity exists as to what benefits from the policy were awarded to appellee in the Decree of Divorce.

Accordingly, we hold that the right to the proceeds of the insurance policy was not resolved by the summary judgment evidence, and we sustain appellant’s first point of error.

By her second point of error, appellant contends that the trial court erred in granting a final summary judgment denying her recovery against the interpleader, Philadelphia Life, because in doing so the court adjudicated the rights and duties of a party not present.

As a result of the conflicting claims of the widow and the former wife, Philadelphia Life filed an interpleader action, alleged its willingness to pay the proceeds of the policy of insurance to the person legally entitled to receive them, and deposited the proceeds into the registry of the court. Both appellant and appellee had filed answers to Philadelphia Life’s bill of inter-pleader, as well as cross-claims against each other, and counter-claims against Philadelphia Life. When appellee filed her motion for summary judgment, appellant filed a response in opposition; however, appellant filed her counter-motion for summary judgment against appellee only. Philadelphia Life did not file a motion for summary judgment or a response to appellee’s motion for summary judgment. Further, although Philadelphia Life was served notice of the hearing date of the appellee’s motion, it did not appear.

Appellant’s counter-claim against Philadelphia Life alleged that the insurer was independently liable to her under its policy because she was the designated beneficiary under the policy, and the insurer had denied her claim to the policy proceeds. The trial court’s judgment stated in pertinent part the following:

ORDERED, ADJUDGED AND DECREED, that all right and liabilities of Interpleader Plaintiff, Philadelphia Life Insurance Company shall be discharged and satisfied by the payment by the Clerk of the Court of the funds deposited by Philadelphia Life Insurance Company into the Registry of the Court; ...
ORDERED, ADJUDGED AND DECREED that the Counter-Plaintiff, Carol W. Seaman, take nothing by way of her Counter-Claim against the Interpleader Plaintiff, Philadelphia Life Insurance Company; ...

The effect of this judgment was to render a final summary judgment against all of the parties. Based on the recent Texas Supreme Court decision in Teer v. Duddlesten, 664 S.W.2d 702 (1984), such a rendition was error.

In Teer, two plaintiffs sued the City of Bellaire and two other defendants. When the latter two defendants alone filed for, and were granted, motion for summary judgment, the final judgment entered included judgment for the defendant City of Bellaire as well. In holding that the trial court should have granted only an interlocutory or partial summary judgment, the supreme court stated:

Two of City’s co-defendants moved for summary judgment, but City filed no motion, gave no notice, produced no affidavits, and made no showing. It did nothing. See Tex.R.Civ.P. 166-A(a), (b). A summary judgment may only be granted in favor of a movant whose evidence offered in support of the motion establishes the movant’s right to judgment as a matter of law ... City was not a party to the summary judgment proceedings either as movant or non-movant, and whether City received a favorable or adverse judgment, the trial court erred in finally adjudicating the rights of that party.

Id. at 703.

Appellee’s motion for summary judgment was filed against both appellant and Philadelphia. The trial court was therefore able to dispose of appellant’s cross-claim against appellee and appellee’s counterclaim against Philadelphia. However, it was error for the court to dispose of appellant’s counter-claim against Philadelphia. Appellant’s counter-motion for summary judgment was filed only against appellee and not against Philadelphia. Although Philadelphia, like the City of Bellaire in Teer, filed no motion for summary judgment against appellant, the trial court nevertheless made an adjudication of appellant’s counterclaim against Philadelphia. Neither appellant nor Philadelphia had reason to believe an adjudication would be made for or against a party not before the court. Teer at 704. The correct judgment would have been a partial summary judgment which did not purport to adjudicate appellant’s rights against Philadelphia. Appellant’s second point of error is sustained.

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