author: BROOKSHIRE, Justice.

text:
    Travis A. TAYLOR, Appellant, v. Martha Schmidt TAYLOR, Appellee.
    No. 09-82-102-CV.
    Court of Appeals of Texas, Beaumont.
    Nov. 8, 1984.
    Rehearing Denied Dec. 3, 1984.

      Joe Scott Evans, Groveton, for appellant.
    Thomas L. Belanger, Nacogdoches, for appellee.
   OPINION

BROOKSHIRE, Justice.

This is a divorce proceeding wherein Petitioner, Martha Schmidt Taylor, was granted a divorce from Respondent, Travis A. Taylor. Both parties appeal from the judgment ordering a division of certain properties of the parties. A considerable amount of property was divided by the court about which no complaint is made by either party. Martha appeals from the division of the home and Travis appeals from the division of certain other real property.

Appeal of Petitioner, Martha Schmidt Taylor

The record reveals that the parties were married August 9, 1969. The parties purchased a home in Tyler, Texas, in 1973 with a down payment of approximately $22,-000.00 of which $10,000.00 represented a distribution from the “Schmidt Trust” (hereinafter referred to and discussed in other points of error). The balance of the money invested in this home was community funds. The home in Tyler was sold by the parties on September 26,1975, and they retained a short-term, second lien note in the sum of $31,556.00 for their equity in the house. This second lien note was payable on October 31,1975 but was paid early and the proceeds were deposited in the parties account on October 24, 1975.

On October 2, 1975, the parties purchased their home in Lufkin, Texas (this home being the subject of Martha’s appeal). It is undisputed that Travis Taylor, Respondent, had previously received $40,-000.00 as a testamentary gift under his deceased father’s will. The down payment of approximately $35,000.00 was drawn from the $40,000.00 testamentary gift. The deed to the home recited the conveyance was to Travis Arthur Taylor and his wife Martha Jane Taylor.

The trial court entered a “Judgment Modifying Decree of Divorce”, awarding Respondent, Travis Arthur Taylor a “Fifty-six percent (56%) undivided interest” in the home located in Lufkin, and awarded Petitioner, Martha Jane Taylor, “Forty-four percent (44%) undivided interest” in the home.

By her first five points of error, Martha Jane Taylor challenges the legal and factual sufficiency of the evidence to support the award of 56% undivided interest in the home to Travis Taylor.

Petitioner, Martha Jane Taylor, admits in her brief the claim of her husband, Travis Taylor, that the down payment for the Luf-kin home was made from his separate property, i.e., the $40,000.00 received from the testamentary gift under his father’s will, was based upon “a complicated ‘paper trail’ of deposit slips, checks and savings account entries compiled by Respondent to establish that the $35,000.00 down payment on the [Lufkin home] originated from a $40,-000.00 testamentary gift from Respondent’s father.” The evidence referred to by Petitioner was introduced into evidence. She does not dispute this tracing and does not dispute the accuracy of the tracing. The trial court filed findings of fact and found, inter alia, that funds, directly traceable to the $40,000.00 testamentary gift, were used in the “payment” of the purchase price of the Lufkin home. There was no direct challenge made to this finding.

Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. TEX.FAM.CODE ANN. sec. 5.02 (Vernon 1975). In order to overcome this presumption, the party asserting separate ownership must clearly trace the original separate property into the particular assets on hand during the marriage. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex.1975). The evidence presented by Respondent clearly traced the down payment made toward the purchase of the Lufkin home into his separate funds, i.e., the $40,000.00 testamentary gift. This fact is supported by the evidence presented, and the findings of the court and is not challenged or disputed by Petitioner. These points are overruled.

Petitioner’s sixth through fifteenth points complain of error in “failing to find” certain facts and conclusions of law. The trial court made and filed findings of fact and conclusions of law, but did not make the findings about which she now complains. She then filed a request for additional findings as to specific facts. The trial court in making one additional finding of fact did not make a finding as to the other specific findings. These points of error are without merit because Petitioner did not bring forward a bill of exception to the failure of the court to make such findings of fact and conclusions of law. Therefore, Petitioner waived any error in her failure to bring forward a bill of exception. Pan American National Bank v. Holiday Wines & Spirits, 580 S.W.2d 7 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.); Stolte v. Mack Financial Corporation, 457 S.W.2d 172 (Tex.Civ.App.—Texar-kana 1970, no writ); Commagere v. Anderson, 417 S.W.2d 875 (Tex.Civ.App.—Dallas 1967, no writ). These points are overruled.

Petitioner, in her sixteenth point, contends the court erred in “concluding that it does not have jurisdiction to order Respondent to repay the funds borrowed from the accounts of the minor children by Respondent and various third parties with Respondent’s permission.”

The record reveals that the parties’ two minor children have received numerous cash gifts from several relatives and from two separate trust estates. These cash gifts were set up in a separate account or trust fund. From this fund Respondent borrowed money over a period of time for his own use and for the purpose of loaning certain sums to third parties. At the time of the divorce, such outstanding loans amounted to the sum of $61,500.00.

Both parties treat the account or trust fund (the evidence is not clear as to the type of account or fund) as evidencing the money belonging to the children in their own right. Neither party asserts any property rights or ownership in such fund.

The $61,500.00 borrowed by Respondent is clearly a debt owed to the children. There is a presumption that a debt created by a spouse during marriage is an obligation of the community. Mortenson v. Trammell, 604 S.W.2d 269 (Tex.Civ.App.—Corpus Christi 1980, writ ref d n.r.e.).

The trial court, in making a division of the community estate pursuant to the provisions of TEX.FAM.CODE ANN. sec. 3.63(a) (Vernon Supp.1984), has authority to order the payment or disposition of the community debts in its consideration and determination of the division of the community estate. Janik v. Janik, 634 S.W.2d 323 (Tex.App.—Houston [14th Dist.] 1982, no writ); Bourne v. Bourne, 559 S.W.2d 844 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ). The trial court did have jurisdiction over this matter. Respondent, in his brief, states “Appellee [Respondent] does not contest Appellant’s [Petitioner] point that the trial court had jurisdiction to allocate the responsibility for the payment of the debt to the children, as between Petitioner and Respondent.” This point is sustained.

Appeal of Respondent, Travis A. Taylor

Respondent contends in his two points of error that the court erred in “concluding that the ‘Creekside Estates’ properties and the ‘Schmidt Building’ rental properties, purchased during the marriage with income distributions from Petitioner’s separate property trust, are Petitioner’s separate property in that such income distributions, made during the parties’ marriage, are community property as they were not acquired by gift, devise, or descent.”

We agree with Respondent’s general contention that the income generated by or from a spouse’s separate property is considered as community property of the husband and wife. However, we do not view this general proposition as being dis-positive of the question before us.

The record reveals that Petitioner’s parents created the “Schmidt Trust” naming the Commercial National Bank in Nac-ogdoches, Texas, as trustee. This “Trust” has been in existence for approximately ten years when Petitioner and Respondent were married. At the time of the marriage of the parties, the “Schmidt Trust” had retained earnings of $62,850.68. The “Trust” made distributions of $161,050.70 of its income or retained earnings to, or for the benefit of, Petitioner during the marriage.

The “Schmidt Trust” was established for the “use and benefit of the respective children of the Trustors, and their lineal descendants....” At its inception, the sole Trust asset was an undivided interest in Schmidts, a ladies’ ready-to-wear store in Nacogdoches, Texas. This asset did not consist of any realty, but only the business enterprise known as Schmidts ladies dress wear store.

The business known as Schmidts “is conducted in two certain buildings, one owned by Miss Emily Lee and one owned jointly by Henry P. Schmidt [Petitioner’s father] and John Louis Schmidt, the assets of which business consist of cash, furniture, fixtures, delivery equipment, accounts receivable and merchandise inventory and burdened with the obligations shown in the attached statement .... ” Petitioner, by the terms of the trust agreement, was the beneficiary of 20% interest “in said business.”

During thfe marriage of the parties, Petitioner, with the earnings distributed from this Trust, purchased realty described as the “Creekside Estates” and the “Schmidt building.”

The trial court filed findings of fact and conclusions of law consisting of, inter alia, the following:

8. The parties stipulated that the corpus of the “Schmidt Trust” was the separate property of Petitioner.
9. The “Schmidt Trust” made $161,-050.70 in distributions of its income or retained earnings to, or for the benefit of, Petitioner during the marriage.
11. All interest of the parties in the “Creekside Estates” properties and the “Schmidt building” rental properties, both in Nacogdoches, County, were purchased with distributions of income from the Schmidt Trust during the parties’ marriage.

Based upon the above findings, the court awarded Petitioner, as her separate property, the “Creekside Estates” and the “Schmidt building.”

It is necessary for us to make a brief reference to certain provisions of the “Schmidt Trust” agreement in order to place Respondent’s contentions in proper perspective.

The Trust agreement provided:

(B) It is the intention of this Trust to place in the Trustee a 40% undivided interest in the retail business herein described as SCHMIDT’S, subject to the following ....
(1) A reasonable salary to the present management ... or to any subsequent management;
(2) “BUY AND SELL” agreement by and between John Louis Schmidt et ux and Henry P. Schmidt et ux; Trustee is expressly authorized to execute the necessary instruments of transfer ....
(3) Reasonable rental payments upon the buildings now or that may hereafter be tenanted by Schmidt’s ....
(4) In order to continue the growth and expansion of said business, management is authorized to create the necessary reserves and make proper additions to capital from earnings before distribution of earnings ....
(D) ... We further provide that if the Trustee shall determine, in its sole discretion, that the financial condition of either of the Trustors is such that their respective children might be in need or that income from the Trusts might be needed for the care, support or education for any of said children during their minority, then in that event, the Trustee may, at its election, distribute and pay for the benefit of such child such amounts out of income of the Trust Estate as it may deem proper to the end that said child may receive proper support, care and education. ... we give to the Trustee the right to distribute the net income at such times and in such amounts as the Trustee it its sole discretion may elect. We further provide that any undistributed income be likewise invested and reinvested, and such investments and re-investments as our said Trustee may select

The above quoted terms of the Trust, in addition to other terms not quoted, clearly indicate that the income and profits derived from the operation of the dress shop were a part of the corpus of the trust estate. The trustors specifically directed the disposition of both. They directed the manner in which income, as distinguished from profits, could be distributed under certain conditions. The intention of the trustors clearly show that the income and profits were as much a part of the corpus of the trust as the individual items of personal property used in the operation of the retail business. The mere operation of a dress shop by the trustee, without receiving income or profits, would be of no benefit or value to the beneficiary of the trust. We hold that the income and profits from the operation of the dress shop were not only a part of the corpus of the trust estate, but were the principal assets of the trust. The entire trust agreement contained more specific directions as to distribution of the income and profits than any other items mentioned in the trust agreement.

It was stipulated by the parties that the corpus of the trust was Petitioner's separate property. The trial court found that the “Creekside Estates” and the “Schmidt building” were purchased with “monies directly traceable to the distributions from the Schmidt Trust.” This finding has not been challenged by Respondent. The “Creekside Estates” and the “Schmidt building” were properly determined by the court as being the separate property of Petitioner.

The judgment of the trial court is reversed as to the failure to dispose of the $61,500.00 debt owed to the children of the parties and is remanded for a disposition of such debt. The judgment, in all other respects, is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Gerald Wallace SANFORD, Appellant, v. TEXAS A & M UNIVERSITY, Et Al., Appellees.
    No. 09-83-211-CV.
    Court of Appeals of Texas, Beaumont.
    Nov. 8, 1984.
    Rehearing Denied Nov. 26, 1984.
    Joseph R. Steele, Port Arthur, for appellant.
    Jim Mattox, Atty. Gen., Susan A. German, Asst. Atty. Gen., Austin, for appellees.
   OPINION

BROOKSHIRE, Justice.

Appeal from summary judgment proceeding arising out of a suit for personal injuries under the Texas Tort Claims Act, TEX.REV. CIVSTATANN. art. 6252-19 (Vernon 1970 and Supp.1984). Original defendants were Texas A & M University, Texas A & M University Agricultural Research and Extension Center and Katy Pest Control.

Texas A & M University and Texas A & M University Agricultural Research and Extension Center filed a joint motion for summary judgment based on the two-year statute of limitations and the six months notice provision in the Texas Tort Claims Act. Evidence introduced at the summary judgment hearing showed that Appellant was exposed to a strong pesticide while working as a telephone repairman on the premises of Texas A & M University Agricultural Research and Extension Center on or about June 29, 1975. He experienced symptoms from the exposure almost immediately and went to a physician the next morning. The physician dismissed the exposure as the cause and diagnosed Appellant’s condition as bursitis. Appellant was in and out of hospitals several times during the period between June, 1975, and September, 1980, complaining of fainting spells and dizziness. Two physicians he consulted dismissed the pesticide exposure as cause of his symptoms.

In September, 1980, Appellant consulted with Dr. Sam Copeland for kidney trouble. He related the pesticide exposure to Dr. Copeland. In October, 1980, Dr. Copeland informed Appellant that his symptoms were consistent with exposure to the pesticide. Prior to this time, none of the numerous physicians Appellant had consulted told him that his medical problems were related to the June, 1975, exposure.

After depositions of Appellant and the custodian of the medical records of Dr. Copeland, then deceased, were proffered at the hearing, the trial court granted the motion for summary judgment. Appellant timely moved for a new trial and for a nonsuit against Katy Pest Control. The nonsuit was granted and the new trial was overruled. Appeal has been perfected to this court.

Appellant contends on appeal that the discovery rule applies in cases brought under the Texas Tort Claims Act for both the two-year statute of limitations and the six-month notice provision. The discovery rule, over time, has ameliorated certain classes of personal injury cases from the injustice of the inflexible doctrine that a cause of action accrues when the wrongful act complained of was actually committed. The rule, developed by case law, holds that the statute of limitations will not commence to run against an injured party until he knew, or in the exercise of reasonable care should have known, that he had a cause of action. See e.g. Weaver v. Witt, 552 S.W.2d 565 (Tex.Civ.App.—Houston [14th Dist.]), writ ref’d n.r.e. per curiam, 561 S.W.2d 792 (Tex.1977) (negligent surgical operation); Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), (negligent leaving of foreign object in patient’s body); Conerly v. Morris, 575 S.W.2d 633 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n.r. e.), (negligent treatment).

Appellant argues that the trial court erred in ruling that the discovery rule does not apply to cases brought under the Texas Tort Claims Act. The Texas Tort Claims Act was passed, in part, to remedy the harsh inequities resulting from the doctrine of sovereign immunity. The Act provides, in part:

“Sec. 16. Except where there is actual notice on the part of the governmental unit that death has occurred or that the claimant has received some injury or that property of the claimant has been damaged, any person making a claim hereunder shall give notice of the same to the governmental unit against which such claim is made ... within six months from the date of the incident....”

The wording of this statute is clear. The statute mandates claimant to give notice to the governmental unit within six months from the date of the incident unless there is actual notice on the part of the governmental unit. In Harris County v. Dowlearn, 489 S.W.2d 140, 146 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.), we find:

"... The Act itself provides for the notice requirements, and sec. 16 of the Act is clearly intended to be an exclusive notice requirement for purposes of bringing suit under the Act. The express mention or enumeration of one thing, consequence or class is equal to an express exclusion of all others. 53 Tex. Jur.2d Statutes sec. 142 (1964). Moreover, the Act contains a repealer clause which repeals all laws in conflict with Art. 6252-19 to the extent of such conflict. (sec. 20)_”

Appellant did not meet this mandatory provision. The record shows that there was no actual notice on the part of Appellees, nor was there notice given to Appellees within the six-month time period.

We find 1) that, excepting actual notice to the governmental unit, a person making a claim under the Texas Tort Claims Act must do so within six months from the date of the incident; 2) section 16 oí the Act is the exclusive notice requirement for prosecuting a suit under the Act; and 3) section 20 of the Act repeals all laws or parts of law in conflict with the Act. In the instant case the date of the incident was on or about June 29, 1975. We find no evidence that a notice of claim for injury was given within six months from that date. We hold that the discovery rule is not applicable to the instant cause of action brought pursuant to the Texas Tort Claims Act because of its plain, mandatory and compelling wording. For reasons stated, we do not reach Appellant’s other points of error.

The judgment of the trial court is affirmed.

AFFIRMED.


author: REYNOLDS, Chief Justice.

text:
    SUNSHINE DATSUN, INC., Appellant, v. Bette RAMSEY, Appellee.
    No. 07-83-0063-CV.
    Court of Appeals of Texas, Amarillo.
    Nov. 8, 1984.

      Marvin Jones, Amarillo, for appellant.
    John Judge, Amarillo, for appellee.
    Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
   REYNOLDS, Chief Justice.

Sunshine Datsun, Inc., brings this appeal from a judgment, rendered on a jury verdict, decreeing its monetary liability to Bette Ramsey in her action to recover damages authorized by the Deceptive Trade Practices-Consumer Protection Act (DTPA). Tex.Bus. & Com.Code Ann. § 17.-41 et seq. (Vernon Supp.1984). Because Mrs. Ramsey’s pre-suit notice of her claim against Sunshine Datsun was insufficient to satisfy the statutory notice required as a prerequisite to filing suit, we reverse and remand.

When the new 1981 Datsun automobile Mrs. Ramsey purchased from Sunshine Datsun was delivered, the hood was not properly positioned and the body side moldings were missing. The salesman took the car to be fixed, telling Mrs. Ramsey she could pick it up two days later. After Mrs. Ramsey unsuccessfully attempted to obtain the car for twelve days following the date it was to be repaired, her attorney made a written demand on Sunshine Datsun. Approximately a week or ten days after the demand, Sunshine Datsun notified Mrs. Ramsey’s husband that the car was ready and, when Mrs. Ramsey did not pick up the car, it was delivered to her home forty-seven days after it had been taken to be repaired. Upon delivery of the car, its odometer registered an additional 150 miles and its upholstery on the passenger seat had sustained four cigarette burns.

Mrs. Ramsey instituted her DTP A action and obtained a favorable verdict from a jury. The trial court rendered judgment, and Sunshine Datsun brought this appeal predicated on twelve points of error. By its second point, Sunshine Datsun contends that Mrs. Ramsey’s letter did not meet the DTPA’s notiee-of-claim requirement which is made a prerequisite to the filing of her suit. We agree and sustain the point, thereby pretermitting an address of the other points which should not recur in the same form in the event of further proceedings.

The letter sent by Mrs. Ramsey’s attorney advised Sunshine Datsun of the specifics of, as well as the circumstances giving rise to, her complaints, and then stated:

Demand is hereby made for the immediate return of my client’s vehicle together with a sum of money representing the fair rental value of the vehicle for each day that it has been in your possession subsequent to August 19, 1981 [the day the car was taken by Sunshine Datsun to be repaired].

The letter was sent thirty days before the filing of Mrs. Ramsey’s suit, which was filed three days before the car was redelivered to her by Sunshine Datsun. No other written notice of claim for monetary redress from Sunshine Datsun was given.

Mrs. Ramsey’s suit is predicated on section 17.50 of the DTPA, which authorizes an action by a consumer subjected to deceptive trade acts or practices, and she seeks damages measured by the provisions of section 17.50(b)(1), together with reasonable attorney’s fees allowed by section 17.-50(d). To maintain the action for damages, section 17.50A(a) requires that

As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 ... against any person, a consumer shall give written notice to the person at least 30 days before filing the suit advising the person of the consumer’s specific complaint and the amount of actual damages and expenses, including attorneys’ fees, if any ....

The language is a clear expression that the mandatory requirement for filing suit is the written notice setting forth the matters specified. Thus, the notice of the claim must include the actual damages and attorney’s fees as a prerequisite to recovery under section 17.50(b)(1). Call v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983).

It is at once apparent that Mrs. Ramsey’s notice letter does not comply with the statutory requirement to advise Sunshine Dat-sun of the amount of actual damages and attorney’s fees claimed as a prerequisite to filing her suit by which she sought specific amounts of damages and attorney’s fees. Yet, aside from her patently untenable submission that her written notice actually gave more notice than was required by the statute, Mrs. Ramsey argues that it was impossible for her to comply with the rigid notice requirements of the statute. The impossibility obtains, she asserts, because when the notice letter was drafted, she could not have known what her damages, resulting from her loss of use and the reduction in the vehicle’s market value, would be until the car was returned, and, at that point, it was not clear that any significant amount of attorney’s fees had been incurred in the absence of prosecution of the action. We are not persuaded to that view.

First, we note the adduction of expert testimony that $38 is the daily rental value of a similar car, and no reason is shown why that daily rate, or a comparable one, was not noticed in the letter as applicable to each day the car was in Sunshine Datsun’s possession. Second, the amount of attorney’s fees accruing at the time of the letter, significant or not, could be stated, id., there being no requirement in the statute for demanding an amount for attorney’s fees in the event suit is filed.

More pertinent, however, is that, when Sunshine Datsun redelivered the car three days after the letter was sent, it was evident Mrs. Ramsey’s claim for damages was not limited to the letter claim of damages for loss of use of the car. At that time, her specific complaints were known and the amounts of damages therefor, including attorney’s fees, were ascertainable. With that information, Mrs. Ramsey could have given the statutory notice made a prerequisite to filing her suit seeking damages pursuant to section 17.50(b)(1), such notice not being rendered impracticable under section 17.50A(b) by reason of necessity of filing suit to prevent the expiration of the statute of limitations.

Given Mrs. Ramsey’s noncompliance with the notice requirement as a prerequisite to filing her suit, Sunshine Datsun contends that the judgment should be reversed and a judgment ordering that Mrs. Ramsey take nothing should be rendered, pointing out that it pleaded the deficiency of notice and, based on the lack of the required notice, filed its motion for an instructed verdict, objected to the submission of special issues, and moved for judgment notwithstanding the verdict. Although we agree that the lack of the required notice dictates a reversal of the judgment rendered, we do not agree that it calls for the rendition of a take-nothing judgment by this Court.

Even though the statutory language clearly manifests the Legislative intent that the notice provision is mandatory, there is no legislative expression of the consequences of a failure to give the mandatory notice. It is settled that there can be no recovery absent the required pre-suit notice, id,.; but, to render a take-nothing judgment upon a determination of the consumer’s noncompliance with the notice provision would be contrary to the expressed legislative scheme, announced in section 17.44, to provide protection, and the efficient and economical procedures to secure it, to consumers against deceptive trade acts or practices, particularly since the provisions are to be liberally construed and applied. Logically, the notice requirement, albeit mandatory, is one of those procedures designed to provide the protection efficiently and economically by affording the opportunity for pre-suit negotiations and settlement in avoidance of lengthy and costly litigation.

On balance, then, we conclude that where, as here, the consumer fails to give the notice required as a prerequisite to filing the suit and the defendant objects to the failure, the legislative scheme of consumer protection is more reasonably effected by an abatement of the filed suit, to allow the giving of proper notice, for a period of time not to exceed the 30-day statutory time for giving notice. This conclusion is reinforced by our Supreme Court’s parallel determination that the purpose of another statute’s similar mandatory pre-suit notice requirement, i.e., to encourage pre-suit negotiations of a plaintiff’s claim so as to avoid excessive cost of litigation, could be accomplished by requiring an abatement of the suit for the giving of notice rather than by dismissing the suit. Schepps v. Presbyterian Hosp. of Dallas, 652 S.W.2d 934, 938 (Tex.1983). Accord, Hutchinson v. Wood, 657 S.W.2d 782, 782-83 (Tex.1983).

Accordingly, the judgment is reversed and the cause is remanded. On remand, the trial court shall abate the suit for a period of time not to exceed thirty days during which, as a condition to litigating her claims for damages and attorney’s fees, Bette Ramsey may give the statutory notice required by section 17.50A(a) of the DTPA.


author: SHANNON, Justice.

text:
    Richard FIELDER, Appellant, v. Dr. Michael ABEL, et ux., Appellees.
    No. 14148.
    Court of Appeals of Texas, Austin.
    Nov. 14, 1984.

      Roy G. Scudday, Fielder & Scudday, Lockhart, for appellant.
    Jeff Otto, Meadows & Otto, Austin, for appellees.
    Before SHANNON, EARL W. SMITH and BRADY, JJ.
   SHANNON, Justice.

Appellees Michael and Peggy Abel, husband and wife, sued appellant Richard Fielder, an attorney, alleging violations of the Texas Deceptive Trade Practices and Consumer Protection Act, fraud in the inducement, constructive fraud and negligence, such claims stemming from appel-lees’ sale of a parcel of real estate to Ben and Elizabeth Schleder. After a bench trial, the district court of Caldwell County rendered judgment that appellant pay ap-pellees $15,000.00 and attorney’s fees. This Court will reverse that judgment and here render judgment that appellees take nothing.

Before May, 1980, appellees held title to forty-nine acres of the William Pettus Survey in Caldwell County. During the winter of 1980, appellees entered into negotiations with Ben and Elizabeth Schleder to sell them ten acres of the forty-nine acre tract. Fielder acted as counsel for the Schleders, the purchasers. Albert Walker represented appellees. Fielder prepared the contract of sale and the warranty deed in question. According to appellees, the warranty deed erroneously included a seventy-five foot strip of land which provided appellees with access to the remaining part of their tract. Appellees also purchased a policy of title insurance from Fielder’s title insurance company insuring the title to the tract for the benefit of the Schleders.

Appellees initially sued the Schleders and appellant, but thereafter settled their claim against the Schleders. As a part of the settlement, the Schleders reconveyed the seventy-five foot strip of land to appellees. Appellees then proceeded to judgment against appellant.

After rendition of judgment, appellant requested the district court to file findings of fact and conclusions of law. In response, the district court filed two different sets of findings and conclusions, one dated February 1, 1984, and the other dated February 3, 1984. The findings filed on February 3, 1984, provided that such were supplementary to those filed on February 1, 1984, except in the event of conflict in which case the findings filed February 3, 1984 were deemed controlling.

Appellees pleaded violations of the Deceptive Trade Practices Act, fraud in the inducement, constructive fraud, and negligence. It is apparent, however, that the district court tried the cause on the theory of violation of the Deceptive Trade Practices Act because there are no findings of fact or conclusions of law referable to ap-pellees’ other claimed grounds of recovery. Because appellees requested no additional findings or conclusions relating to their other claimed grounds of recovery, they waived any claimed error of the court in failing to address those other grounds of recovery. See Imatani v. Marmolejo, 606 S.W.2d 710 (Tex.Civ.App.1980, no writ). Moreover, appellees have filed no cross-points on appeal complaining of the failure of the district court to address their grounds of recovery other than violations of the Deceptive Trade Practices Act.

Appellant attacks the judgment by seven points of error. Although the judgment may be reversed upon any one of several errors, this Court has determined to grant point of error one which complains that the district court erred in finding that appellees were “consumers” within the meaning of the Deceptive Trade Practices Act.

The following facts are not disputed. Appellant prepared the contract of sale and warranty deed, and furnished them to ap-pellees’ attorney, Walker, prior to closing. Both the sales contract and the deed contained a legal description which included the seventy-five foot strip. Appellant prepared the metes and bounds description for the contract and deed from a copy of a plat prepared by surveyor Dale L. Olson. The plat was provided appellant by appellees’ attorney, Walker. The original plat was prepared by Olson on March 28, 1980 and was accompanied by a separate page containing field notes, or a complete metes and bounds description of the area surveyed. At the time of the preparation of the contract and deed, appellant was not aware of the existence of the field notes as there were no field notes accompanying the plat provided appellant.

At the closing, appellees paid for a title policy issued by County Wide Abstract and Title Co., a business solely owned by Fielder and his wife. The title policy’s metes and bounds description of the property was the same as the description in the contract and deed. Following the legal description in the warranty deed and title commitment is the phrase, “As surveyed on the ground by Dale L. Olson, Public Surveyor No. 1753 on March 28, 1980.”

The rationale of appellees’ claim for violation of the Deceptive Trade Practices Act, is that Fielder drafted the metes and bounds description “inconsistent and contrary” to the field notes prepared by Surveyor Olson on March 28, 1980, and then “certified” that such description was that actually surveyed by Olson. Appellees contend that by use of the phrase, “As surveyed ... ”, in the instruments, Fielder represented that Olson actually prepared the legal description in those instruments. This conclusion rests on the premise that the phrase, “As surveyed ... ”, necessarily means that the description corresponds to the surveyor’s field notes.

In defense of the judgment, appellees maintain that they were consumers of the services of Fielder doing business as the title company. Appellees claim that they purchased the title policy which contained the inaccurate description and false “certification,” and, as a result, they were consumers as to Fielder. In addition, appel-lees assert that they were consumers of the services of Fielder, as an attorney. Under the law and facts neither assertion is meritorious.

One must be a “consumer” within the definition of Sec. 17.45(4) to successfully maintain a cause of action under the Deceptive Trade Practices Act. Riverside Nat. Bank v. Lewis, 603 S.W.2d 169, 173 (Tex.1980). As a “consumer,” a party must qualify as one “who seeks or acquires by purchase or lease, any goods or services.” There are two requirements for one to qualify as a consumer: (1) the person must have sought or acquired goods or services by purchase or lease, and (2) the goods or services purchased or leased must form the basis of the complaint. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981). “If either requirement is lacking, the person aggrieved by a deceptive act or practice must look to the common law or some other statutory provision for redress.” 618 S.W.2d at 539. The district court determined in Additional Finding of Fact No. twelve that the issuance of the title policy was not the basis for appellees’ complaint. The district court’s determination stands unchallenged by cross-point. Accordingly, appellees cannot satisfy the second requirement of Cameron with respect to their argument that their purchase of the title policy qualifies them as “consumers.”

In Additional Finding of Fact No. thirteen, the district court determined that the language of the warranty deed was the basis for appellees’ complaint. The following two unchallenged findings foreclose ap-pellees’ claim that they were “consumers” as to Fielder in connection with the preparation of the deed. Additional Finding of Fact No. fourteen states that appellees did not purchase the warranty deed from Fielder, because he prepared the deed as the attorney for the Schleders. Additional Finding of Fact No. fifteen states that ap-pellees did not purchase any goods or services from Fielder. Under Cameron, as appellees’ claim is based upon the warranty deed, appellees would have to be the purchasers of such deed. However, the only items purchased by appellees were the legal services of their own attorney, Albert Walker.

Appellees assert that they qualify as “consumers” under Flenniken v. Longview Bank & Trust Co., 661 S.W.2d 705 (Tex.1983) which holds that one is a “consumer” to all parties who seek to enjoy the benefits of the transaction. Appellees urge that Fielder, as a compensated attorney for the purchasers, enjoyed the benefits of the transaction of the sale of the property. The rule in Flenniken, however, simply describes the range of potential defendants once the plaintiff establishes his “consumer” status under Cameron. Flenniken does not abrogate the two-part requirement of Cameron.

First Municipal Leasing Corp. v. Blankenship, Potts, Aikman, Hagin and Stewart, 648 S.W.2d 410 (Tex.App.1983, writ ref’d n.r.e.) bears on the issue of whether appellees qualify as “consumers” based on Fielder’s having prepared closing documents for the Schleders. In First Municipal Leasing Corp., plaintiff First Municipal was required to provide a bank with an attorney’s opinion determining the validity of an assignment of a right to receive payment which was assigned to First Municipal by System Works. First Municipal requested System Works to provide the legal opinion, and System Works employed a law firm to prepare the opinion. The attorneys submitted to System Works a legal opinion and System Works paid their fee. It was discovered later that the legal opinion was erroneous, and First Municipal filed suit against the attorneys claiming negligence and violations of the Deceptive Trade Practices Act. In concluding that First Municipal was not a “consumer”, the Dallas Court of Appeals wrote at page 417:

We conclude that First Municipal was not a “consumer.” First, it is undisputed that First Municipal neither purchased nor leased the Attorneys’ legal services and that these Attorneys received no consideration from First Municipal for such services. Although the Supreme Court of Texas has held that a client of an attorney is a consumer within the meaning of the Act, that holding was based on the fact that the client purchased legal services from an attorney. DeBakey v. Staggs, 612 S.W.2d 924 (Tex.1981). In the present case, however, there was no such purchase by First Municipal. In the present case the Attorneys’ services were purchased by System Works, not by First Municipal, and System Works was the client.

The district court erred in concluding that appellees were “consumers” within the meaning of the Deceptive Trade Practices Act.

The judgment is reversed and judgment is here rendered that appellees take nothing.

EARL W. SMITH, J., not participating.


author: BULLOCK, Justice.

text:
    Juan Ramon ORTIZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0570-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 20, 1984.
    Ken J. McLean, Houston, Charles C. Cate, Katy, for appellant.
    William A. Meitzen, Fort Bend County Dist. Atty., Donald W. Bankston, Fort Bend County Asst. Dist. Atty., Richmond, for appellee.
    Before EVANS, C.J., and WARREN and BULLOCK, JJ.
   OPINION

BULLOCK, Justice.

Appellant was originally indicted and tried in Fort Bend County for murder. However, the trial court declared a mistrial when the jury could not reach a verdict on guilt or innocence. The cause was then transferred by change of venue to Comal County, where a jury found appellant guilty of murder and assessed punishment at fifteen years confinement.

We affirm.

On July 16, 1982, game wardens discovered four badly decomposed bodies along the Brazos River in Fort Bend County. Further investigation disclosed that the vie-tims had been Salvadoran nationals, illegal aliens who had been murdered between July 2-4, 1982. Other Salvadorans, who had entered the United States with the victims, identified the corpses through the clothing, the decomposition having made recognition of the victims’ features impossible. The victims had been bound with rope. The coroner testified that the four had died from gunshots, at close range, to the head. Authorities also recovered seven spent nine millimeter (9mm) cartridges and one spent 9mm bullet at the murder site.

Investigation by law enforcement authorities ultimately led to a gang of Hispanics known as “Los Tejas” or “Mafia de los Tejas,” and to several units of an apartment complex in southeast Houston that the gang rented and occupied. The police obtained the property owner’s permission to search those units and discovered human hair and human blood in one of the units.

A grand jury indicted thirteen members of this gang, including appellant, known as Juan or Juanio Ortiz.

Police officers testified that their investigation revealed that the gang rented several units of the apartment complex; that they frequently occupied these units; that a major occupation of the gang was to be “coyotes,” individuals who agree to import illegal aliens into the United States for money; that neighbors had seen the gang on many occasions bringing illegals into or moving illegals out of the apartments; that appellant was a member of the gang; and that appellant was usually armed with a 9mm handgun.

Four individuals who had come to the United States from Central America through the gang’s activities as “coyotes” testified at appellant’s trial. All of these individuals testified through a translator.

Cruz Ventura testified that in June, 1982, he left El Salvador for the United States in the company of seven countrymen, including the four victims. In Monterrey, Mexico, Ventura testified, the group met one Pedro Hernandez, who offered to turn the group over to “coyotes” who would transport them to Houston for $500 per person. The group crossed the Rio Grande at Nue-vo Laredo by raft (for which, Ventura testified, the “coyotes” made them pay extra), whereupon most of them were herded into the trunk of an automobile, the remainder riding inside the vehicle, and taken to Houston. During this eight-hour journey the “coyotes” provided neither food nor water to their helpless charges. Upon arriving in Houston, the “coyotes” — now armed with automatic handguns — herded the refugees into an apartment that Ventura identified at trial through photographs as one of the apartments occupied by the gang, ridiculed and harrassed them, and informed them that the “selling price” was now $800 per person. Appellant and another gang member took Ventura and another Salvadoran, Roman Turcios, to a restaurant to inform the illegals’ families of the higher price for delivery. The negotiations were unsuccessful, and the foursome returned to the apartments. There, Ventura testified, the gang members were outraged over a gun battle that had occurred while Ventu-ra’s group was at the restaurant, in which another Salvadoran had escaped after his relatives had shot and killed a gang member. At this point appellant and other gang members beat and kicked the remaining Salvadoran illegals, bound them with rope, cut their hair, stuffed it in their mouths, and poured a noxious liquid down their noses in an attempt to drown them. The gang members then put the bound and helpless Salvadoran victims in a room and told them they would cut their heads off in the morning. During the night, Ventura and another Salvadoran, Victor Turcios, freed themselves and their companions from their bondage and attempted to escape. Ventura and Victor Turcios were successful; Ventura testified that the other four failed in their escape attempt, and that he never saw them alive again.

Mario Ventura, another member of the illegal group, testified at trial, corroborating Cruz Ventura’s testimony as to the group’s arrival in Houston in early July, and their treatment when they arrived at the apartment. He testified that a gang member took him to a grocery store to inform his relatives of the “price increase,” and that a gun battle ensued, in which a gang member died, and he made his escape.

Victor Turcios also testified at appellant’s trial, corroborating Cruz Ventura’s story in every respect.

Gerardo Perez, a Mexican national imported illegally by the gang approximately twenty-four hours after the Salvadoran group, also testified at appellant’s trial. Perez described the barbarous treatment meted out to him by the gang members, including appellant, this treatment being only slightly less appalling than that testified to by the survivors of the first group. The gang then locked him and his wife in the same apartment that the Salvadoran witnesses had identified with four badly beaten Salvadorans, whom Perez described as securely tied with rope. Some time later, Perez testified, appellant and another gang member entered this apartment and took the four Salvadorans out, laughingly claiming that their families had paid for them. Perez, a highly educated man familiar with hunting and firearms, testified that appellant carried a 9mm automatic, while his companion carried a .38 caliber handgun. The two gang members returned later, Perez testified, without their Salvadoran prisoners.

Jose Mejia, the maintenance worker at the apartment complex, testified that “Los Tejas” or “Mafia de los Tejas” was an Hispanic group that rented the apartment units in question and that he had observed them in their trade as “coyotes,” while illegals were present. He specifically identified appellant as a gang member and as a “coyote,” described from personal observation the 9mm weapon appellant carried, and testified that appellant had once told him that if he ever wanted someone killed, the gang would take care of it for him.

Appellant’s counsel cross-examined each of these witnesses vigorously, including law enforcement personnel, counsel later contending that the law officers’ informants had implicated another individual instead of appellant. Nothing in the record, however, demonstrates that, apart from semantic difficulties encountered when cross-examination requires an interpreter, counsel elicited any contradiction of this evidence. Appellant’s ease rested on alibi; his wife testified at trial that on one of the days the killings may have occurred, she saw him “leave for work.”

The trial court properly charged the jury as to the law of parties, infra, and the jury convicted appellant of the murder of Roman Turcios.

Appellant presents five grounds of error, comprising two related arguments:

1) That insufficient evidence exists in the record to support appellant’s conviction for murder (Ground of Error 1) and

2) That the trial court improperly applied the law of parties to the case, because insufficient evidence exists to establish that appellant acted either alone or in concert with his fellow “coyotes” (Grounds of Error 2-5).

Appellant argues that the evidence in this case is totally insufficient to support his conviction on the charge of murder. There is, in appellant’s view, no evidence that ties appellant to the murder of the victims. We disagree.

The Texas Court of Criminal Appeals has clearly established the standard of review for judging the sufficiency of the evidence supporting a conviction based on circumstantial evidence:

[Circumstantial evidence will be sufficient to support a conviction if the facts proved support a reasonable inference that the defendant committed the crime and exclude to a moral certainty any inference consistent with his innocence.

Wilson v. State, 654 S.W.2d 465, 467 (Tex.Crim.App.1983); see also Easley v. State, 564 S.W.2d 742, 749 (Tex.Crim.App.1978). This standard of proof does not require the presence of one concise, discrete fact establishing of its own force the guilt of the accused:

It is not necessary ... that every fact point directly and independently to the guilt of the accused, and the cumulative force of all the incriminating circumstances may be sufficient to warrant a conclusion of guilt.

Easley v. State, 564 S.W.2d at 749.

The “reasonable hypothesis” test has not changed the fundamental interest we have in reviewing the sufficiency of the evidence to support a conviction:

[Circumstantial evidence should not be tested by an ultimate “standard for review” different from direct evidence; the standard in both kinds of cases is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt [Emphasis in the original].

Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981).

The State introduced all of the evidence described, supra, without objection or any contradiction by appellant. The only hypothesis appellant raised during trial was that he had not even been present during the period of time he allegedly abused and ultimately murdered the Salvadorans, but this hypothesis fails in light of the uncontradicted testimony of four of the very people upon whose numbers the gang members preyed. They placed appellant, by their testimony and their in-court identification of him, at the apartments where the two groups of illegals debarked. Thus, more than adequate evidence exists to refute appellant’s claim of an alibi, and establish his guilt.

The only other reasonable hypotheses remaining are that, while appellant was a member of the gang, either he was not involved in the importation of this group of Salvadorans, or that he was not present and involved during the murders.

The first of these hypotheses fails for the same reasons that appellant’s attempt to construct an alibi failed. Witnesses, both within and without the apartment, placed appellant at the apartment and established that he had a direct involvement, not only in the “coyote” business generally, but in this particular scenario itself. We hold that the evidence established that appellant had a continuing involvement in the importation of illegals by this gang.

The second possible hypothesis must likewise fail when we consider the sum of the evidence. This evidence establishes that the gang had a direct involvement as “coyotes”; that appellant was a member of this gang, directly involved in its activities; that appellant habitually carried a 9mm handgun; that the gang imported both the group of Salvadoran illegals from which the victims came and the group of illegals that included Mr. Perez; that appellant physically and verbally abused the Salvadoran illegals; that after one of their members died in the escape of Mario Ventura, the gang decided to kill their desperate charges, and threatened that they would kill them; that appellant was among those who made the threats; that appellant was among those who continued the physical abuse, including an attempt to drown the Salvadorans; that appellant and another gang member removed the remaining Salvadorans from the apartment; that appellant was carrying a 9mm handgun at this time; that the Salvadorans were not released but instead killed by gunshots; that there was spent 9mm ammunition found near the bodies; and that no one saw the victims alive again after appellant and his companion led them away from the apartment.

While the advanced state of decomposition made it impossible to prove on the basis of the coroner’s examination, that the death wounds came from a 9mm handgun, the presence of only 9mm ammunition refutes a conclusion that the wounds came from a .38 handgun. Moreover, it is immaterial which gang member actually did the shooting or with which weapon since the trial court properly charged the jury as to the law of parties. Romo v. State, 568 S.W.2d 298 (Tex.Crim.App.1978). The evidence clearly and overwhelmingly demonstrates appellant’s predisposition to harm, and ultimately to kill, the Salvadorans, and we overrule appellant’s first ground of error.

In his remaining four grounds of error, appellant argues that the trial court improperly failed to charge the jury as to the law of parties, because testimony by a law enforcement authority indicated that an informant may have notified them that appellant was not present during the murders. He contends that because a different legal theory between the indictment and proof was thus created, fundamental error exists, and his failure to object to this misapplication of the law of parties is immaterial.

Tex.Penal Code Ann. sec. 7.01(c) (Vernon 1981) provides:

All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice [Emphasis supplied].

The Penal Code does not require an indictment to contain any reference to the law of parties, and its absence from an indictment is not a fundamental defect, nor does it create a difference in legal theories with the jury charge. Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978); Romo v. State, 568 S.W.2d at 302-303 (Tex.Crim.App.1978). It is sufficient to satisfy the Code if the charge to the jury contains the law of parties. Id. Moreover, we note that the charge properly incorporated the law of parties, including a requirement that the jury acquit appellant if it found that the four individuals alluded to in the alleged informant’s story committed the murder without appellant’s presence or involvement. Appellant thus received in the charge to the jury precisely what he claims now on appeal that he needed for a fair determination of his case. Appellant’s authorities are clearly distinguishable from the instant case. In Wilson v. State, 625 S.W.2d 331 (Tex.Crim.App.1981), the indictment failed to allege a culpable mental state. In Moore v. State, 574 S.W.2d 553 (Tex.Crim.App.1978), the charge to the jury included alternative grounds for a conviction not alleged in the indictment, and in Smith v. State, 574 S.W.2d 551 (Tex.Crim.App.1978), the charge authorized the jury to convict on an offense not alleged in the indictment. In the case at bar, appellant was indicted, tried, and convicted for the offense of murder. While the indictment did not incorporate the law of parties, we hold that it was not necessary under the Penal Code for it to include that law. Thus, appellant having failed to object to the charge, he has waived any objection on appeal. Pitts v. State, supra; Romo v. State, supra. Officer Saldivar’s testimony intimated indirectly that an unidentified informant had, as appellant points out, suggested that appellant was not physically present at the time of the murders. This in itself is insufficient to create a reasonable hypothesis that the evidence taken as a whole does not refute beyond a reasonable doubt. Four witnesses saw appellant’s course of physical assault upon these unfortunates; one of those saw him take the victims out of the apartment. No one saw the victims alive after they left the apartment. The evidence overwhelmingly refutes the conclusion that appellant would have us draw from one isolated, indirect comment made by an unidentified informant not, himself, present at the trial. The jury thus could reasonably have found either that appellant acted alone or in concert with other gang members in the murder of Roman Turcios.

We overrule appellant’s last four grounds of error and affirm the judgment of the trial court.


author: JORDAN, Justice.

text:
    Mark KLEESE, Appellant, v. The STATE of Texas, State.
    No. 2-83-314-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 21, 1984.

      Woodruff, Fostel, Wren & Simpson and Melton D. Cude, Decatur, for appellant.
    Brock R. Smith, Dist. Atty., Decatur, for appellee.
    Before HUGHES, JORDAN and ASH-WORTH, JJ.
   OPINION

JORDAN, Justice.

The appellant was arrested along with six other people at a ranch in Wise County, Texas, which had been under surveillance by Fort Worth narcotics officers. This appeal is from a conviction of appellant for organized criminal activity consisting of unlawful delivery of hydromorphone in an amount less than twenty-eight (28) grams and unlawful delivery of a usable quantity of marihuana in an amount of more than four (4) ounces, but less than five (5) pounds. Punishment was assessed by a jury at twenty-five (25) years in- the Texas Department of Corrections. Appeal has been taken alleging five (5) grounds of error.

The judgment is affirmed.

Appellant in his first and second grounds of error claims that there was no evidence or alternatively insufficient evidence to support the jury’s verdict. The court charged the jury on the law of circumstantial evidence.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the jury’s verdict and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on rehearing). A conviction cannot be sustained if the evidence leaves any reasonable doubt as to the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Thus, it follows that a conviction based on circumstantial evidence cannot be sustained “if there is a ‘reasonable hypothesis’ other than the guilt of the accused, [for] then it cannot be said that the guilt has been shown ‘beyond a reasonable doubt’ ”. Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984) (quoting Denby v. State, 654 S.W.2d 457, 465 (Tex.Crim.App.1983) (opinion on rehearing) (McCormick, J., concurring).

There was testimony that on the day of the arrest, appellant and three other men spent most of the day walking around the ranch. They were carrying guns. Appellant’s living quarters, in the upstairs part of the horse barn, gave him a good view of the entire ranch. There was testimony that appellant was present when the down payment was made on a trailer later found to contain kilos of marihuana. When appellant was arrested in his living quarters, police found a loaded .30-30 lever action rifle lying behind appellant’s head. A switchblade knife was discovered nearby. The shoulder holster which was sewn inside appellant’s jacket was also found to contain a handgun. We find this evidence sufficient for the jury to conclude appellant was acting as an armed guard.

Finally, we note that the State does not have to directly refute appellant’s contention that he was only a stablehand. See Jackson, 672 S.W.2d at 804. The rational triers of fact chose to believe the State’s evidence and to disbelieve appellant.

Grounds of error one and two are overruled.

Grounds of error three, four, and five all concern the court’s charge to the jury on the law of criminal responsibility. The court charged the jury as follows:

Mere presence alone will not make a person a party to an offense. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he aids or ■ attempts to aid the other person to commit the offense.
A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, or aids or attempts to aid the other person to commit the offense.

In his third ground of error appellant complains that the trial court erred in charging the jury twice on the State’s theory that appellant was criminally responsible for the conduct of another. He argues such action unduly emphasized the State’s theory of criminal responsibility. Appellant did not raise this objection to the charge at trial. Where there is no objection to the charge at trial only fundamental error will be considered on appeal. Rubio v. State, 607 S.W.2d 498, 502 (Tex.Crim.App.1980).

The cases, Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643 (1953), and Garrett v. State, 639 S.W.2d 18 (Tex.App.—Fort Worth 1982), aff'd, on other grounds, 658 S.W.2d 592 (Tex.Crim.App.1983), cited by appellant are not controlling. These cases merely state that a defendant is not entitled to a double submission. Parsons, 271 S.W.2d at 654; Garrett, 639 S.W.2d at 21. They do not address the issue of whether a repetitive submission is so unfair and prejudicial as to constitute fundamental error.

A jury charge is fundamentally defective when: (1) that portion of the court’s charge to the jury which applies the law to the facts authorizes conviction on a theory not alleged in the indictment; (2) the charge to the jury substitutes a theory of the offense completely different from the theory alleged in the indictment; (3) the charge to the jury authorizes conviction on the theory alleged in the indictment and on one or more other theories not alleged in the indictment; and (4) the charge authorizes conviction for conduct which is not an offense, as well as for conduct which is an offense.. Cumbie v. State, 578 S.W.2d 732, 733-35 (Tex.Crim.App.1979). Clearly any error in twice submitting an instruction on criminal responsibility does not fall within these four categories. See id.; see also Woodard v. State, 54 Tex.Crim. 86, 111 S.W. 941, 942 (Tex.Crim.App.1908) (court will not reverse on basis of repetition alone). Appellant’s third ground of error is overruled.

In his fourth ground of error appellant claims that the trial court erred in submitting the complete statutory definition of “criminal responsibility for the conduct of another” as the facts do not show any “solicitation, encouragement or direction” on the part of the appellant. We see no merit in appellant’s contention as the court’s definition tracked the language of the statute. See TEX. PENAL CODE ANN. sec. 7.02(a)(2) (Vernon 1974).

The cases cited by appellant do not support his position. These cases discussed the court’s failure to apply the law to the facts in the application paragraph. See Williams v. State, 622 S.W.2d 578, 579 (Tex.Crim.App.1981); Perez v. State, 537 S.W.2d 455, 456 (Tex.Crim.App.1976); Harris v. State, 522 S.W.2d 199, 202 (Tex.Crim.App.1975). In the present case, however, appellant has objected to the wording in the definitional section of the court’s charge, not the language contained in the application paragraph. Appellant has cited no cases and we have found none which require the court to apply the facts of the offense to the definitions given to the jury. See Turpin v. State, 606 S.W.2d 907, 910 (Tex.Crim.App.1980) (specific facts of offense need not be applied to general instructions and definitions in court’s charge); Jones v. State, 576 S.W.2d 393, 394 (Tex.Crim.App.1979) (broad definitions do not constitute reversible error). We accordingly overrule appellant’s fourth ground of error.

In his fifth ground of error appellant complains that the contents of the doubly submitted instruction on criminal responsibility was contradictory and therefore confusing to the jury. Appellant points out that the first definition of criminal responsibility does not include the words “solicits, encourages and directs” while the second instruction deleted the sentence involving “mere presence”. Appellant contends this instruction was fundamentally defective.

When evaluating the charge, the reviewing court will view the charge as a whole. Crocker v. State, 573 S.W.2d 190, 207 (Tex.Crim.App.1978); Pittman v. State, 554 S.W.2d 190, 191 (Tex.Crim.App.1977).

After viewing the charge in its entirety, we conclude the jury was not misled so as to deny appellant a fair and impartial trial. Consequently, no fundamental error was shown. Ground of error five is overruled.

The judgment is affirmed.


author: HILL, Justice.

text:
    Carroll Wayne WATTS, Appellant, v. The STATE of Texas, State.
    No. 2-84-166-CR.
    Court of Appeals of Texas, Fort Worth.
    Nov. 29, 1984.

      George Harwood, Amarillo, Ralph H. Brock, Lubbock, for appellant.
    David M. McCoy, Dist. Atty., Childress, for the State.
    Before HUGHES,' BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

Appellant, Carroll Wayne Watts, was convicted of attempted capital murder and sentenced to twenty years in the Texas Department of Corrections.

On appeal, he argues that there was insufficient evidence to support his conviction, and that the State made improper jury arguments during both the guilt/innocence and punishment phases of the trial. He further complains that the trial court’s charge on intoxication and insanity caused the jury to reject his insanity defense, and that the rejection was against the great weight and preponderance of the evidence.

We affirm.

Appellant’s grounds of error numbers one, two and seven urge that there was no evidence or insufficient evidence to support the conviction.

On October 3, 1981, about 8:50 p.m., Truett Owens, the son of a deputy sheriff, saw appellant standing next to his pickup truck about a block from the county jail, holding a pistol and staring at the jail. Appellant’s son was being held in the jail on juvenile charges. Owens drove to the jail and reported what he’d seen to the dispatcher on duty. As Owens drove away from the jail, appellant started to follow him in his pickup. Appellant chased Owens at speeds up to 80 m.p.h. When Owens stopped, appellant pointed a pistol at him and threatened to blow his brains out. Owens escaped and reported the second incident.

Deputy Sheriff Jean Denton heard the radio traffic about appellant and reported for duty early. He and Constable Wilson Porter were given appellant’s name and the number and description of his pickup truck. They left the jail in a patrol car, which was clearly marked, and stopped for gas at the Texaco station. The station attendant told them that appellant had driven by and fired a shot at the attendant.

Meanwhile, appellant went to the VFW, ordered a beer, and talked to Earl Janes, a local farmer. He asked Janes, “Have you seen any cops? I just shot one and I’m looking for another one to shoot.” Janes testified that Watts had a “goofy” look but seemed fairly normal and spoke calmly. Appellant did not appear to be drunk, and left a few minutes later with his can of beer.

Officers Denton and Porter spotted appellant in his truck at the corner of 8th and Dallas Streets. Denton called in and was told that appellant had also fired a shot at the Conoco gas station. Denton activated the car’s flashing lights and started to follow appellant down Dallas Street, toward 7th Street. Appellant sped up, turned right on 7th, and right again onto Highway 83, running a stop sign. The officers followed. Appellant threw a beer can out of his truck.

As both vehicles picked up speed on Highway 83, the patrol car was about 50 feet behind appellant’s pickup. As the two vehicles crossed 8th Street, an object hit the patrol car. The same thing happened at about 15th Street. Both officers initially thought the objects were pieces of gravel slung up from the road, but as the patrol car caught up to appellant’s truck, Porter said to Denton, “The man is shooting at us.” The officers identified appellant through the open driver’s window of the pickup. Denton, the driver, radioed in and was told to stop the pickup. At this point, as the two vehicles reached 110 m.p.h., both officers heard three or four gunshots. Denton told Porter to blow the pickup’s tires out with a shotgun, which Porter proceeded to do. Appellant’s pickup flew off the road and ended up on its side. Appellant was not injured, although he was admitted into the hospital for observation for a couple of days.

After the chase was over, the officers discovered a hole in the front grill of the patrol car and a crease along the front hood of the car, holes that were not there before the chase began. A half-full whiskey bottle was found in the pickup, and a .357 Colt Magnum with six spent shells in it was found fifteen feet from the pickup. Appellant had .38 ammunition on his person. Marshall Peters, a man who lived along Highway 83, also heard the four gunshots.

In reviewing the sufficiency of the evidence in a circumstantial evidence case, we must view the evidence in the light most favorable to the jury’s verdict and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983, opinion on rehearing).

Appellant was charged with knowingly and intentionally attempting to cause the death of a person or persons he knew to be peace officers acting in the lawful discharge of their duties by knowingly and intentionally shooting at them with a gun.

Appellant does not dispute that he knew Denton and Porter were peace officers acting in the lawful discharge of their duties. He does argue that there is insufficient evidence that he shot at the patrol car.

Both Denton and Porter twice heard something strike the patrol car. Porter told Denton that the man was shooting at them. Both officers heard four gunshots, as did bystander Peters. The patrol car was damaged in two places, damage that could have been caused by bullets. Appellant had a pistol and ammunition with him in the pickup and, in his own words, was looking for a cop to shoot. We find that the evidence was sufficient for the jury to find the essential elements of the crime beyond a reasonable doubt.

However, a conviction cannot be sustained if the evidence leaves any reasonable doubt as to the guilt of the accused. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979). Thus, it follows that a conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant. Johnson v. State, 673 S.W.2d 190, 195 (Tex.Crim.App.1984); Wilson, 654 S.W.2d at 471.

Appellant urges that the State failed to exclude the reasonable hypothesis that the patrol car was damaged by gravel, not bullets. He points to the testimony of the two police officers. Each initially thought that it was gravel striking the car, and neither actually saw appellant holding a pistol or firing it at the officers.

These portions of the officers’ testimony do show that the State’s case was circumstantial. They do not show, however, that gravel was a reasonable alternative. The police officers realized almost immediately that appellant was shooting at them. The fact that neither saw split-second muzzle flashes while engaged in a sudden high-speed pursuit in and out of light cast by streetlights does not mean that there were no muzzle flashes. It means only that the officers did not see any. Appellant offered no evidence that gravel could cause the type of damage that the patrol car sustained. We therefore hold that the jury could find that no other reasonable hypothesis existed besides appellant’s guilt. We overrule grounds of error one, two and seven.

Appellant’s ground of error number three alleges improper jury argument by the State.

The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted in evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App.1980). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; (4) plea for law enforcement. Darden v. State, 629 S.W.2d 46, 52 (Tex.Crim.App.1982); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Crim.App.1973).

Appellant claims that the prosecutor, Mr. McCoy, exceeded the permissible bounds of jury argument during the punishment phase when he said:

[MR. McCOY:]
Now, the punishment range varies with the crime. We talked about that way back when we’re talking about five on the low end to ninety nine or life on the top end. What’s average? About fifty. Isn’t this crime at least an average first degree felony? I’m not going to tell you all or demand anything before I or any peace officer, any citizen in this community would be satisfied. I’m only going to tell what to give but I say when you measure it you have got to say that it is at least an average crime.

Defense counsel then objected. In response to that objection, Mr. McCoy told the court:

MR. MCCOY: Nowhere did I ask or suggest what time they should give. I said an average time span is between ninety nine and fifty and was not this an average crime at least? Nowhere did I suggest any number of years.

Defense objections were overruled, as was a motion for mistrial, thus preserving this question for us on appeal.

Appellant argues that the prosecutor was, in effect, telling the jury to assess appellant 50 years imprisonment, and refers us to Irving v. State, 573 S.W.2d 5 (Tex.Crim.App.1978), and Haynes v. State, 663 S.W.2d 118 (Tex.App.—Houston [1st Dist.] 1983, pet. ref d). In Irving, the prosecutor asked the jury to rely on “my expertise in these matters,” and in Haynes, the prosecutor implied that he had personal knowledge of other crimes or convictions not in evidence before the jury. Neither case supports appellant’s contention here. Mr. McCoy did not refer to himself as an expert, and did not imply personal knowledge of other crimes or convictions. The question before us was raised in Jackson v. State, 654 S.W.2d 749, 751 (Tex.App.—Houston [14th Dist.] 1983, no pet.) but was not answered. We hold that there was no error. As long as a prosecutor does not say he has some kind of specialized knowledge, it is perfectly proper for him to offer the jury his analysis of the case, Johnson v. State, 629 S.W.2d 99, 102 (Tex.App.—El Paso 1981, no pet.), to remind the jury of the entire range of punishment, Rich v. State, 510 S.W.2d 596, 597 (Tex.Crim.App.1974), and generally to contrast the case before the jury to other cases, Tatum v. State, 649 S.W.2d 139, 141 (Tex.App.—Fort Worth 1983, pet. ref’d). We overrule appellant’s ground of error number three.

Appellant’s grounds of error numbers four, five and six involve appellant’s defense of insanity.

In ground of error number four, appellant urges us to find that the State’s attorney made an improper jury argument during the guilt/innocence phase. The prosecutor said:

(Mr. McCoy) Ladies and gentlemen, if you believe beyond a reasonable doubt, that that Defendant is guilty with what he is charged with and don’t find him guilty, what in essence you are saying is in Collingsworth County you get a free one before we do anything with you.

The defense objected, but the objection was overruled. The prosecutor continued:

(Mr. McCoy) What you are really saying is in Collingsworth County there’s a bag limit of one peace officer before we do anything with you: if you believe he is guilty and don’t find him guilty.

Appellant reads this as an attempt by the State to tell the jury to ignore appellant’s insanity defense. We disagree.

The prosecutor began his jury argument with a discussion of appellant’s insanity defense, which was based on diagnoses of temporal lobe epilepsy and dementia. He then changed the subject, and praised the peace officers involved in the case, followed by the remarks to which appellant objects. After appellant’s objections were overruled, the prosecutor concluded by telling the jury how important a link they were in the American system of justice.

As appellant points out, it is improper for a prosecutor to beg jurors to “do something” about a man who kills another and then “claim[s] exemption from punishment because he is an epileptic, ...” Maynard v. State, 106 Tex.Crim. 558, 293 S.W. 1104, 1106 (Tex.Crim.App.1927). Similarly, as in Livingston v. State, 531 S.W.2d 821, 823 (Tex.Crim.App.1976), it is improper for the prosecutor to say that the accused “may very well go out and kill somebody” if not convicted. Here, prosecutor McCoy in no way connected his remarks about appellant’s defense of insanity to his remarks about “you get a free one”, and he did not tell the jury that appellant would try again to kill someone.

Also, prosecutorial warnings about “one free attempt to murder”, “one free ride”, and “one free killing” have been held not in error. Bacon v. State, 500 S.W.2d 512, 514 (Tex.Crim.App.1973); Smith v. State, 457 S.W.2d 58, 60 (Tex.Crim.App.1970); Monroe v. State, 644 S.W.2d 540, 545 (Tex.App.—Dallas 1982, discretionary review granted April 6, 1983). We overrule appellant’s ground of error number four.

Under ground of error number five, appellant challenges the instruction on intoxication given to the jury:

The burden of proof, as to insanity, is upon the Defendant to prove insanity by a preponderance of the evidence.
By the term “preponderance of the evidence” is meant the greater weight and degree of the credible evidence in the case.
Temporary insanity caused by voluntary intoxication does not constitute a defense to the commission of crime. The term “intoxication” means disturbance of mental and physical capacity resulting from the introduction of any substances into the body.

The giving of this instruction was error, according to appellant, for two reasons. First, TEX.PENAL CODE ANN. sec. 8.04 (Vernon 1974), upon which this instruction is based, refers to “intoxication”, not mere “use”. Since, according to appellant, there was no evidence of his being intoxicated, to the point of being what is commonly referred to as “drunk”, the inclusion of the instruction is error. Also, appellant continues, the reference to temporary insanity caused by voluntary intoxication was in error because the issues of voluntary intoxication and temporary insanity were never raised at trial. The instruction in effect told the jury to ignore his insanity defense based on temporal lobe epilepsy and dementia if they felt the use of alcohol was a cause of that insanity.

Section 8.04 of the Penal Code contains its own definition of “intoxicated”, “disturbance of mental or physical capacity resulting from the introduction of any substance into the body.” This special definition is probably closer to “use” than “drunk,” but the trial court used the exact language of the statute and was not in error.

The evidence shows that on the night of October 3, 1981, appellant drank a beer at the VFW, threw a beer can out the window of his pickup, and had a half-full whiskey bottle with him in the cab of the pickup. He did introduce some alcohol into his body. According to one of appellant’s own medical experts, epileptic seizures can be triggered by the use of alcohol. The jury could find that appellant was temporarily insane because of his use of alcohol, and so the trial court was correct to include the instruction on temporary insanity caused by voluntary intoxication.

Appellant’s reliance on Hart v. State, 537 S.W.2d 21, 24 (Tex.Crim.App.1976) and Rodriguez v. State, 513 S.W.2d 594 (Tex.Crim.App.1974) is misplaced. Hart does not stand for the proposition that the defendant must be “drunk” in order to be “intoxicated”, and Hart itself notes that Rodriguez is not controlling. We overrule appellant’s ground of error number five.

Appellant argues, in his ground of error number six, that the jury’s rejection of his insanity plea was against the great weight and preponderance of the evidence.

Most of the- witnesses were asked about appellant’s behavior before, during or after the events of October 3.

Owens, the deputy sheriff's son, testified that appellant recognized him and called him by name.

Janes, the farmer in the VFW, testified that appellant recognized him. Appellant “barged in” and had a “mad” or “goofy” look about him and was “wild-eyed”. Although appellant appeared to be “tense”, he seemed fairly normal and spoke calmly about crops for about three to five minutes before he left.

Denton, the deputy sheriff, testified that he had heard talk that appellant was a “nut”.

Kenneth Maxwell, sheriff, testified that appellant had a reputation for being “overbearing” and “a bully, but not a nut”. Appellant had pointed pistols at people and threatened them before, but had no convictions. There had been some trouble between appellant and a deputy sheriff a couple of weeks before the events of October 3. On the night of the 3rd and during appellant’s time in the jail awaiting trial, nothing indicated that he was insane. Two or three days after October 3, some papers were found at appellant’s home that talked about drug smuggling and violent acts aimed at the sheriff and a deputy. Once, in the hospital immediately after October 3, appellant said that someone was trying to poison him.

Alta Watts, appellant’s mother, testified that appellant told her in September that “some guys” tried to push him off the highway. He was thereafter “nervous”, and thought that some killers were after him. He drew up a will and stayed up all night one night watching the vacant house next door. At no time, though, did he have seizures or pass out, and nothing in his papers mentioned any killers.

Carter Holcomb, M.D., appellant’s family physician, saw appellant soon after the high-speed chase ended. Appellant was coherent, did not need restraints and appeared sane. He did pull his I.Y. out two days later and said someone was trying to poison him. He sent appellant for psychiatric treatment in 1976 and to Rusk in 1977 for evaluation after family complaints of episodes of “agitation”.

Mary Lou Mulch, appellant’s cousin, repeated a story appellant told her in the hospital about being a federal agent with drug smugglers after him.

Marvin Leon Morris, clinical psychologist, testified that appellant suffered from organic brain dysfunction (dementia) and temporal lobe epilepsy. He said the former was probably the result of illness or injury and would not improve, though it could be controlled by medication and therapy. The epilepsy, he went on, is characterized by attacks of extremely bizarre behavior, and requires drugs and moderation of lifestyle, including abstention from alcohol, to control.

Jack Randolph Tomlinson, psychiatrist and physician, confirmed the diagnosis of Morris, his partner, and added that appellant had some minimal atrophy of the brain. He did agree, however, that it was unlikely appellant would have had only two “seizures” or problems in a five-year period, and agreed that drinking or anger could bring on a seizure. Most seizures last one and one-half to two minutes.

In rebuttal, the State presented three witnesses, Sheriff Maxwell, jailer N.E. Childers, who saw appellant every day for four and one-half months until the trial, and the ambulance driver who took appellant to the hospital after the chase. All testified that appellant seemed normal, not insane or suffering from any kind of seizure.

Appellant argues that we, as a Court of Appeals, do not need to find here that the appellant was insane as a matter of law, merely that the jury verdict that appellant was not insane was contrary to the great weight and preponderance of the evidence. He relies on Sckuessler v. State, 647 S.W.2d 742, 748-49 (Tex.App.—El Paso 1983, discretionary review granted June 22, 1983).

Those testifying that appellant was insane were his mother, his cousin and two medical experts who talked to appellant and tested him for a few hours several months after the incidents of October 3. Several police officers, a local farmer and appellant’s family physician, all of whom spoke with appellant and observed him on October 3, said that he was sane. In Sckuessler, the only witnesses as to Schuessler’s sanity were jailers who saw him months after the incident in question and after he had received months of treatment. The jury verdict was not against the great weight and preponderance of the evidence. We overrule ground of error number six.

Having overruled all of appellant’s grounds of error, we affirm his conviction for attempted capital murder.