author: STEPHEN F. PRESLAR, Chief Justice. OSBORN, Justice,

text:
    Pat McNEIL, Appellant, v. Charles PIERCE d/b/a Fashion Floors, Appellee.
    No. 08-84-00254-CV.
    Court of Appeals of Texas, El Paso.
    March 6, 1985.
    Rehearing Denied April 3, 1985.
    Edward T. Garza, Midland, for appellant.

      C.H. Hal Brockett, Jr., Brockett, Cunningham & Bates, Midland, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is a suit on a sworn account under Rule 185 of the Texas Rules of Civil Procedure. The sole question presented is whether the pleadings of the defendant are sufficient to put plaintiff on proof of his claim. The trial court granted judgment for plaintiff based on the pleadings of the parties. We reverse and remand.

Rule 185, as it existed at the time of trial, provided that where plaintiffs properly verified pleadings seek recovery on an account, the allegation in plaintiff’s petition shall be taken as true unless defendant files a “written denial, under oath, stating that each and every item is not just or true, or that some specified item or items are not just and true.... ” Rule 93(k) contained identical language concerning the content of the sworn denial at the time of trial.

The defendant pled “PAT McNEIL denies that each and every item in the accounting attached to Plaintiffs Original Petition is just and true.” The problem is that defendant in denying the entire account has used the language set out in the rule for denying some specified item or items. To deny the entire account, the rule says the answer should be “just or true.” However, we have concluded that the answer of the defendant is sufficient to put plaintiff to proof of his case considering the nature of the rule and the split of authorities on the question of strict adherence to the wording of the rule.

Rule 185 is not a rule of substantive law but is a rule of procedure with regard to evidence necessary to establish a prima facie right of recovery. Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75, 78 (1958). The defendant’s correct denial in the form required by Rule 185 destroys the evidentiary effect of the itemized account and forces the plaintiff to put on proof of his claim. Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860, 862 (Tex.1979). The obvious purpose of the rule is to provide a procedure for accounts to be reduced to judgment summarily in cases where there is no question of their validity. By proper pleading under the rule, the plaintiff can make a prima facie case, and to destroy the probative force of the prima facie case, the defendant must plead a denial of equal force or dignity. See: Dollie Adams Oil Corporation v. Roberts, 259 S.W.2d 311 (Tex.Civ.App.— Amarillo 1953, no writ) for a discussion of cases interpreting Rule 185. For an enlightening discussion of language use under Rule 185, see Hill v. Floating Decks of America, Inc., 590 S.W.2d 723 (Tex.Civ. App. — San Antonio 1979, no writ). In the case before us, plaintiff established his pri-ma facie case by pleading that his account was “just and true.” The defendant opposed it by a plea that it was not “just and true.” We view that as equalizing language that destroys the probative force of plaintiff’s pleadings and forces plaintiff to his proof. One says yes and the other says no, using the same language. So, clearly the issue is drawn.

The cases which have interpreted Rule 185 and 93(k) have required strict adherence to the requirements of the rules. Goodman v. Art Reproductions Corporation, 502 S.W.2d 592 (Tex.Civ.App. — Dallas 1973, writ ref’d n.r.e.). The courts of appeals are divided on whether a strict adherence to the rules requires a verbatim repetition of the language thereof. Plaintiff in this case, both in the trial court and in this court, relies on Edinburg Meat Products Company v. Vernon Company, 535 S.W.2d 432 (Tex.Civ.App. — Corpus Christi 1976, no writ). The defendant there used the same language as our case, and it was held to be insufficient to put the plaintiff to proof of his case. The Tyler court reached the opposite result in Stevens Foods, Inc. v. Loggins Meat Company, 644 S.W.2d 908 (Tex.App. — Tyler 1983, no writ), saying specifically that that court refused to follow Edinburg; and the court said it also overruled Oliver Bass Lumber Company v. Kay and Herring Butane Gas Company, Inc., 524 S.W.2d 600 (Tex.Civ.App.— Tyler 1975, no writ). The Oliver Bass Lumber Company case was one where the court called for a verbatim pleading of the rule and sought to support its holding by analyzing the language of the rule. That holding was criticized also in Hill v. Floating Decks of America, Inc., supra, where the court in an enlightening opinion by Judge Cadena upheld the sufficiency of an answer not following verbatim the language of rules. In the case of Sigler v. Frost Brothers, Inc., 555 S.W.2d 818 (Tex. Civ.App. — El Paso 1977, no writ), this Court reached the same conclusion as the Edinburg Meat Products case. Our decision was noted and disapproved in the Hill v. Floating Decks of America, Inc. case, and rightly so, we now think. The Tyler Court of Appeals in the case of Gipson v. Southwest Oil Company of San Antonio, Inc., 604 S.W.2d 396 (Tex.Civ.App. — Tyler 1980, no writ), had before it the same language, “that each and every item” was not “just and true” and it was held that that language was sufficient to put the plaintiff to the proof of his case.

Due to the absence of a controlling decision by the Supreme Court of Texas and the split of authority among the courts of appeals, this Court will hold that the pleadings in this case are sufficient to put the plaintiff to his proof.

The judgment of the trial court is reversed and the cause is remanded for trial on the merits.

OSBORN, Justice,

dissenting.

I respectfully dissent. In Sigler v. Frost Brothers, Inc., 555 S.W.2d 813 (Tex.Civ. App. — El Paso 1977, no writ), this Court was faced with the question of whether or not a strict compliance with Rule 185, Tex. R.Civ.P., is required in order for a defendant to be able to present a defense to a suit on a sworn account. We said: “A denial of the verified account must be in the terminology of the rules and if not, the Defendant will not be permitted to deny the Plaintiffs claim or any item included therein.” I see no reason to depart from that decision.

In Airborne Freight Corporation v. CRB Marketing, Inc., 566 S.W.2d 573 (Tex. 1978), the court in a per curiam opinion quoted Rule 185 and then said: “It is settled that if the defendant fails to file a written denial under oath and in the form provided, he will not be permitted to dispute receipt of the items or services or the correctness of the stated charges.”

The same results were reached in another per curiam opinion in Crystal Investments v. Manges, 596 S.W.2d 853 (Tex. 1980) where the defendant’s answer denied “that the said amount is not just and true in whole or in part, * * The court said:

We hold that the supplemental answer filed by the defendant did not meet the requirements of Rule 185 and that the court of civil appeals’ opinion is contrary to this rule. The supplemental answer does not contain language denying the validity of the claims for all items, or denying the validity of some identified item or items contained in the sworn account. To allege that an “amount is not just and true in whole or in part,” raises only a general denial, and satisfies neither the pleading requirements of Rule 185 nor the purpose for the rule. See, Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860 (Tex. 1979). See also, Rule 93(k) Tex.R.Civ. Pro.

The cases upon which the majority relies from the Courts of Appeals in Tyler and San Antonio are “no writ” cases. They are contrary to Rule 185 as it existed at the time of trial and the holdings of the Texas Supreme Court. Also see: Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249 (Tex.Civ.App. — Fort Worth 1981, no writ). I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: SEERDEN, Justice.

license: Public Domain

text:
    David Eugene WILSON, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-198-CR.
    Court of Appeals of Texas, Corpus Christi.
    March 7, 1985.
    Jose Luis Pena, Harlingen, for appellant.
    Maria Teresa Soto, Asst. Dist. Atty., Brownsville, for appellee.
    Before NYE, C.J., and SEERDEN, J.
   OPINION

SEERDEN, Justice.

Appellant was convicted of driving while intoxicated. Punishment was assessed by the jury at 30 days in the Cameron County Jail and a fine of $100.00. Upon the jury’s recommendation, the jail term was probated for two years.

In his first ground of error, appellant contends the evidence is insufficient to sustain the conviction. The undisputed evidence shows that around 8:00 p.m. on November 27, 1983, appellant and two friends departed the Galley Restaurant in Port Isabel and, almost immediately thereafter, the pick-up truck in which they were riding collided with a parked car, veered across the street and came to rest within a few feet of a lumber company’s plate glass window. The evidence is amply sufficient to show that all three parties in the pick-up were intoxicated. The dispute is over whether there is sufficient evidence to identify appellant as the driver of the pick-up.

There were no eyewitnesses to the collision, or the operation of the pick-up, other than the three parties in the pick-up. Both appellant and Kathy Allen, the owner of the pick-up, testified that Kathy Allen was the driver. The third party in the pick-up, Larry Shinn, called as a witness for the defendant, testified that he was too intoxicated to have much recollection of what happened.

In connection with the issue of who was driving the pick-up on the occasion in question, the State offered the testimony of Lawrence McFarland, Daniel Flores, and Emilio Yasquez.

Lawrence McFarland testified that he lived approximately 250 feet away from the accident and that after hearing the sound of crunching metal, he got in his truck and went to see what had happened. When he arrived at the accident site two to three minutes later, he saw appellant standing “fairly close” to the truck outside of the open driver’s door. A woman was sitting in the middle seat and another man was sitting on the passenger’s side. Less than a minute later, Officer Daniel Flores arrived in response to his dispatcher’s call.

Flores testified that when he arrived three persons were sitting in the truck. The driver’s door was closed. Appellant was seated behind the wheel, the woman was in the middle and the other passenger was on the far right-hand side. Flores asked what happened and appellant said, “Nothing, we’re just parked here.” When appellant stepped out of the truck, he lost his balance and Flores determined that appellant was intoxicated. Flores further testified without objection that after arriving at the police station appellant responded “yes” to a question of whether he was operating a vehicle.

Emilio Vasquez, the second police officer to arrive at the accident site, testified that under the direction of Officer Flores, he transported Kathy Allen and Larry Shinn to the police department to be booked for public intoxication.

In reviewing the sufficiency of the evidence, an appellate court looks at all the evidence in the light most favorable to the verdict or judgment and determines 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 (Tex.Crim.App.1984).

We have reviewed the record and find the evidence sufficient to sustain the conviction. While it is true that none of the State’s witnesses saw appellant operating the pick-up truck, appellant’s admission to Officer Flores that he was operating a vehicle (along with the circumstances testified to by Lawrence McFarland) support the jury’s conclusion that appellant was the driver of the pick-up truck, despite the conflicting evidence presented by appellant and his friends. We note here that appellant raised no objection to Officer Flores’ testimony concerning appellant’s oral statement. While appellant may have had valid grounds for suppressing this oral statement under TEX.CODE CRIM.PROC.ANN. art. 38.22 (Vernon Supp.1984), it is well settled that in the absence of an objection, such statements are admissible. See Moulden v. State, 576 S.W.2d 817 (Tex.Crim. App.1978); Jaramillo v. State, 504 S.W.2d 853 (Tex.Crim.App.1974); Herring v. State, 429 S.W.2d 147 (Tex.Crim.App.1968); Watkins v. State, 411 S.W.2d 364 (Tex.Crim. App.1967). The jury was justified in considering the appellant’s oral admission of guilt to Officer Flores, and thus the evidence is sufficient to sustain the conviction. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that trial counsel’s failure to locate and subpoena a key witness for the defense constituted ineffective assistance of counsel. The testimony of Kathy Allen and Lawrence McFarland showed that some other person arrived at the scene of the accident before McFarland. Arguing newly discovered evidence in his motion for new trial, appellant included the affidavit of Rae Dejur, an employee of the restaurant, who stated that on the night of the accident Kathy Allen was driving the vehicle when it left the restaurant just a minute before the accident. She further stated that one of her co-workers, Peter Larson, went across the street to investigate the accident. The trial court overruled the motion for new trial. Appellant did not raise an ineffective assistance ground in his motion for new trial.

Appellate counsel now asserts that trial counsel was ineffective for not using due diligence to secure the presence and testimony of Rae Dejur. In spite of appellant’s assertions, we are unable to determine from the record before us that appellant’s trial counsel failed to investigate or failed to call witnesses who could have assisted appellant. Appellant has simply failed to develop the record in this regard. We have previously noted that where the alleged inadequacies of trial counsel are primarily errors of omission or dehors the record, rather than that of commission revealed in the trial record, the proper vehicle for complaint is a collateral attack which permits the development of facts concerning the alleged ineffectiveness. See Barrera v. State, 664 S.W.2d 372 (Tex.App.— Corpus Christi 1983, no pet.). Moreover, appellant’s complaint that his trial counsel failed to call witnesses at the guilt stage of the trial is without merit in the absence of a showing that such witnesses were available. See Hunnicutt v. State, 531 S.W.2d 618 (Tex.Crim.App.1976). Appellant’s second ground of error is overruled.

The judgment of the trial court is AFFIRMED.

      . The trial court’s docket sheet reflects that on March 30, 1984, the "Motion for New Trial heard and overruled.” The written order denying the appellant's motion for new trial states "came on the (sic) be heard the State’s Brief in Response to Motion for New trial and the Court having heard the evidence thereon is of the opinion that said motion should be denied.” No statement of facts, however, is included in the record from a hearing on a motion for new trial, if indeed a hearing was held.
      We further note that appellant’s ground of error is predicated upon an affidavit attached to his motion for new trial. Whether we should consider this affidavit in disposing of appellant’s ground of error is questionable. In the recent case of Lamb v. State, 680 S.W.2d 11 (Tex.Crim. App.1984), the Court of Criminal Appeals considered the merits of an issue presented by way of affidavits attached to a motion for new trial. The majority noted the general rule that motions for new trial are not self proving and that they must be supported by affidavits, which must be offered into evidence at a hearing, citing Walker v. State, 440 S.W.2d 653 (Tex.Crim.App. 1969), but then considered the issue in the interest of justice. Presiding Judge Onion, concurring in the result, vigorously dissented to the majority’s consideration of the affidavits which were not properly before the trial court. Judge Onion wrote that the "departure from established procedure is wrong" and wondered "Will we hear again about what this court does today?"
      With this in mind, we mention the contents of the affidavit attached to appellant’s motion for new trial only for the purpose of explaining appellant's ground of error.


author: BENAVIDES, Justice.

text:
    Michael Joseph COLBURN, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-249-CR.
    Court of Appeals of Texas, Corpus Christi.
    March 7, 1985.

      Arnold Medina, Corpus Christi, for appellant.
    Dale Summa, Asst. County Atty., Richard Hatch, County Atty., Sinton, for appel-lee.
    Before NYE, C.J., and BENAVIDES, and SEERDEN, JJ.
   OPINION

BENAVIDES, Justice.

Appellant was convicted by a jury of the misdemeanor offense of driving while intoxicated. Punishment was fixed by the trial court which sentenced appellant to 30 days’ confinement in the San Patricio County Jail and a fine of $500.00. We affirm.

In a single ground of error, appellant alleges that the trial court erred in removing a selected, qualified juror and replacing him with another juror, without cause, upon request of the State in violation of TEX.CODE CRIM.PROC.ANN. art. 35.16 (Vernon Supp.1985). Appellant argues the court’s action was tantamount to giving the State an extra peremptory strike. Counsel for appellant asserts that the State was allowed to strike a juror after the clerk announced appellant’s strikes. This contention is contradicted by the record.

The trial court had the original strike lists of both parties filed and instructed the attorneys and the clerk that there would be no written changes. The court stated that the State’s list was prepared and submitted to the court prior to the reading of the names the clerk listed as those selected to serve.

After examining the transcript and statement of facts, we accept the trial court’s explanation to the jury that it simply made an error in calling the names of those selected. The court called the name of a juror who had been properly struck by the State and did not call the name of a qualified “unstruck juror” whose name should have been originally called to the jury box. Upon being advised of the mistake, the court properly removed the venireman who had been peremptorily struck by the State and seated the qualified, un-struck juror whose name should have been called to the jury box. The court then administered the oath to the jury. It would have been error had the court allowed a juror to serve on the panel after learning that said juror had been properly challenged. Appellant’s argument that the trial court cannot correct its mistake is without merit. See Acosta v. State, 522 S.W.2d 528 (Tex.Crim.App.1975) (duty of parties to see that jury box does not contain juror challenged by striking). Appellant’s ground of error is overruled.

The “conclusion” of appellant’s brief states that the evidence is insufficient to support a conviction for driving while intoxicated. There are no references to the record and no citations to any cases or statutes to support this blanket allegation. Appellant does not assign such conclusion as error or present any argument in furtherance of such conclusion. Appellant fails to specify in any manner whatsoever how or why the State’s proof is insufficient. We, therefore, decline to review this unbriefed “conclusion”.

The judgment of the court is AFFIRMED.


author: OSBORN, Justice.

text:
    COX MARKETING, INC. and Taco Villa, Inc., Appellants, v. Pete ADAMS, Appellee.
    No. 08-84-00397-CV.
    Court of Appeals of Texas, El Paso.
    March 13, 1985.

      Cynthia MeKeehan, Fred M. “Mickey” Jones, P.C., Odessa, for appellants.
    Michael Lockwood, Evans & Lockwood, Midland, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

OSBORN, Justice.

The Appellants appeal by writ of error from a default judgment in a garnishment case. We conclude that the citations will not support a default judgment, and the judgment of the trial court is reversed and the case remanded for trial.

Pete Adams filed an Application for Writ of Garnishment in the 142nd Judicial District Court on July 30, 1984. He alleged that on August 22, 1983, he had recovered judgment against Rick Dougherty for the sum of $17,064.70. He also alleged that he had reason to believe the two garnishees were indebted to Mr. Dougherty. The Application stated that the garnishee, Cox Marketing, Inc., is a Texas corporation and service could be had upon it by serving Bobby Cox, 810 North Dixie, Odessa, Texas. The Application also stated that the garnishee, Taco Villa, Inc., is a Delaware corporation authorized to do business in Texas and service could be had upon it by serving its registered agent, Bobby D. Cox, 212 Pilot Road, Midland, Texas.

One citation was issued to “COX MARKETING, INC. by serving BOBBY COX 810 NORTH DIXIE, ODESSA, TEXAS” and it has a return showing it was executed “by delivering to the within named Garnishee Cox Marketing, Inc. by s/Bobby Cox in person” on August 10, 1984. Another citation was issued to “TACO VILLA, INC. BY SERVING ITS REGISTERED AGENT, BOBBY D. COX 212 PILOT ROAD, POST OFFICE BOX 6504, MIDLAND, TX” and it has a return showing it was executed “by delivering to the within named Garnishee Taco Villa by serving Bobby Cox in person” on August 10, 1984. A default judgment was entered against each garnishee on September 5, 1984, for the sum of $13,-873.86 plus interest and costs. The two garnishees filed a petition for writ of error on November 1, 1984, and a supplemental petition on November 28, 1984.

The first three points of error assert the trial court erred in entering judgment without proper service. We conclude that the citation served upon Cox Marketing, Inc. will not support a default judgment. To uphold such a judgment against an attack based upon a claim of invalid service of process, it is essential that the record affirmatively show a strict compliance with the provided manner and mode of service of process. Texas Inspection Services, Inc. v. Melville, 616 S.W.2d 253 (Tex.Civ.App. — Houston [1st Dist.] 1981, no writ); Charles Cohen, Inc. v. Adams, 516 S.W.2d 464 (Tex.Civ.App. — Tyler 1974, no writ).

The Texas Business Corporation Act in Article 2.11 provides for service of process upon the president and all vice presidents of the corporation and the registered agent of the corporation, and if there is no registered agent then process may be served upon the Secretary of State. In order to meet these requirements, it is necessary that the record reflect that the person to be served is the president, a vice president or the registered agent of the defendant corporation. Pipe Line Park Properties, Inc. v. Fraser, 398 S.W.2d 154 (Tex.Civ.App. — Dallas 1965, no writ). In this case, neither the pleading nor the citation recites that Bobby Cox was a person designated by the statute as a person upon whom process could be served. Such a pleading and citation will not support a default judgment. Charles Cohen, Inc. v. Adams, supra; Ponca Wholesale Mercantile Company v. Alley, 378 S.W.2d 129 (Tex.Civ.App. — Amarillo 1964, writ ref’d n.r.e.).

The Appellee argues that the cost bond and the supersedeas bond filed by Cox Marketing, Inc. on November 1, 1984, show “Bobby D. Cox, President” as the person signing for the corporation and his capacity as president. These bonds were not before the court when the default judgment was signed and were not matters of record which could be used to show the validity of the citation. Neither can we consider them in determining the sufficiency of the citation. Tankard-Smith, Inc. General Contractors v. Thursby, 663 S.W.2d 473 (Tex.App. — Houston [14th Dist.] 1983, writ dism’d). But, in any event, the bond only reflects the position of Bobby D. Cox on November 1, 1984, when he signed the bond and is not proof that he occupied that position when citation was served in August, 1984. Point of Error No. One is sustained.

We turn next to the citation served on Taco Villa, Inc. The pleading alleged that the foreign corporation could be cited by serving process on its registered agent, Bobby D. Cox. The citation was directed to “TACO VILLA, INC. BY SERVING ITS REGISTERED AGENT, BOBBY D. COX * * * „ rphg return recites service on Bobby Cox. The Texas Business Corporation Act, art. 8.10, authorizes service of process upon the registered agent of a foreign corporation. When the petition alleges and the citation states the name of the corporation and its registered agent and the return shows service on the defendant through the named individual, no extrinsic evidence of the agent’s authority is required unless the issue is raised by an affidavit or a motion to quash which questions such authority. 4 McDonald, Texas Civil Practice sec. 17.23.2 (1984). Appellant’s contention in this regard is without merit.

But, the second argument is valid. Appellant contends a return on a citation which only reflects an agent was “served” will not support a default judgment. We agree. Rule 107, Tex.R.Civ.P., requires that the return of the executing officer state “the manner of service.” A recita-. tion that the agent “was served” states only a conclusion as to service being perfected and does not show the manner of service. In Hyltin-Manor Funeral Home v. Hill, 304 S.W.2d 469 (Tex.Civ.App. — San Antonio 1957, no writ), the court held that a return reciting “by serving Joe Manor, President” did not reflect the manner of service and reversed a default judgment. The same results were reached in Watson Van & Storage Company v. Busse, 451 S.W.2d 557 (Tex.Civ.App. — Houston [1st Dist.] 1970, no writ) where the return recited service upon a corporate defendant “by serving Mr. Bennett Watson.” The court said:

[I]t is settled that the qualifying words, “by serving,” render the return defective for failure to state the manner of service, as now required by Rule 107, T.R.C.P., in that such term is merely a legal conclusion.

Jacksboro National Bank v. Signal Oil and Gas Company, 482 S.W.2d 339 (Tex. Civ.App. — Tyler 1972, no writ) involved service on a garnishee just as in this case. The sheriff’s return on the writ of garnishment recited “by delivering the within named Garnishee, Jacksboro National Bank, by serving S.V. Stark, in person, a true copy of this writ.” The court quoting from the decision in Continental Insurance Co. v. Milliken, 64 Tex. 46 (1885) concluded that such a return only gives a legal conclusion of the officer and does not state the manner of service.

Appellee relies upon Hudler-Tye Construction, Inc. v. Pettijohn & Pettijohn Plumbing, Inc., 632 S.W.2d 219 (Tex.App. —Fort Worth 1982, no writ). That case is not applicable. There the court said the return did comply with Rule 107. We sustain Point of Error No. Two. It is not necessary to consider the other points of error which relate to the pleadings and the evidence.

The judgment of the trial court is reversed and the case is remanded for a new trial.


author: SCHULTE, Justice.

text:
    Michael Louis MILES, Appellant, v. The STATE of Texas, Appellee.
    No. 08-84-00057-CR.
    Court of Appeals of Texas, El Paso.
    March 13, 1985.

      Carl H. Green, J. Scott Howard, Gram-bling & Mounce, El Paso, for appellant.
    Steve Simmons, Dist. Atty., El Paso, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

SCHULTE, Justice.

This is an appeal from a conviction for murder. Appellant pled guilty to the court and punishment was assessed at thirty-five years imprisonment. We affirm.

Appellant was accused of the fatal stabbing of his mother, Glenda Miles, on October 8, 1982. Ground of Error No. Fourteen contends that he was denied his constitutional and statutory rights to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972); Tex.Code Crim.Pro.Ann. art 32A.02 (Vernon Pamphlet Supp.1985). This action commenced with Appellant’s arrest on October 8, 1982. An indictment was returned on November 19 and the State announced ready on November 22. This established a prima facie showing of compliance with the Speedy Trial Act. Barfield v. State, 586 S.W.2d 538 (Tex.Crim.App.1979). The record fails to rebut that announcement or demonstrate any later violation of the provisions of the act. Appellant’s pretrial/arraignment was set three times and ultimately waived on January 14,1983. On that same date, Appellant requested a pre-sentencing investigation (ultimately completed August 15, 1983). On January 26, he requested psychiatric evaluation for purposes of determining both sanity at the time of the offense and competency to stand trial. Psychiatric testing was completed on or about April 18, 1983. A competency trial was specially set for July 25. A jury verdict of competency was entered on July 28. On August 4, the court specially set the case for trial on the merits on November 14. Appellant entered his plea of guilty on November 15. No continuances or other forms of delay on the part of the State appear in the record. No evidence was presented to rebut the State’s assertion of readiness. Ground of Error No. Fourteen is without merit and is overruled.

The remaining fourteen grounds of error challenge the propriety of the guilty plea proceeding by focusing on the ramifications of Appellant’s asserted mental incompetency. For ease of analysis, they may be divided into and discussed in three categories: a) those dealing with the proceedings prior to November 14, 1983; b) those dealing with the court’s decision to accept the plea; c) those dealing with the conduct of the plea proceeding.

PRE-NOVEMBER 14 PROCEEDINGS

In Ground of Error No. Twelve, Appellant contends that the court erred in permitting, over objection, the testimony of Dr. Dale Johnson at the July, 1983 competency hearing. Appellant asserts that he was not advised that he would be evaluated by Johnson, did not request or consent to such evaluation and did not waive the privilege afforded by former Tex.Rev.Civ.Stat. Ann. art. 5561h, as it was in effect prior to September 1, 1983. In its present form, Article 5561h includes in its exception to confidentiality use during criminal court proceedings where the patient is victim, witness or defendant. Tex.Rev.Civ.Stat. Ann. art. 5561h, sec. 4(a)(5)(Vemon Supp. 1985). This exception became effective subsequent to Appellant’s competency evaluations and hearing. Nonetheless, the introduction of Dr. Johnson’s testimony was proper under the prior form of the act.

Appellant moved the court for psychiatric evaluation on January 26, 1983. He specifically requested examination by Dr. V. Jack Butler, psychiatrist, and Dr. Boris Kaim, neurologist. Dr. Kaim had previously served as a consulting physician with regard to two 1976 administrations of electroencephalogram tests on the Appellant. The court did appoint Dr. Kaim in accordance with Appellant’s request. For reasons not disclosed in the record, on February 11, 1983, the court appointed psychiatrist Dr. David Briones, in lieu of Dr. Butler, to conduct a psychiatric examination. On that same date, Appellant’s written waiver of confidentiality, under Article 5561h, sec. 4(a)(2) was filed with the court. No objection was raised to the substitution of Briones for Butler. On March 1, 1983, the court ordered psychological testing of the Appellant at 423 Executive Center, El Paso, under the umbrella of Dr. Briones’ psychiatric evaluation appointment.

The testimony of both Briones and Johnson reveals that Briones is the head of the Texas Tech School of Medicine Psychiatric Department and the Psychiatric Department of Thomason General Hospital in El Paso. Johnson is the chief psychologist working under Dr. Briones in both contexts. Briones defers all psychological testing necessitated by his psychiatric evaluations to the psychologists, particularly Dr. Johnson. Such testing is generally conducted at the outpatient facility at Executive Center. This same procedure was followed in this case. Dr. Briones’ court-ordered evaluation necessitated psychological testing. This was conducted by technicians at the outpatient facility. The test results were evaluated by Dr. Johnson, who reported his findings to his supervisor, Dr. Briones. Johnson did not personally interview the Appellant. Johnson’s evaluation was integrated into Briones’ evaluation and testimony. Consequently, Dr. Johnson’s involvement was merely a component of Dr. Briones’ evaluation and was covered by the same waiver of confidentiality. The testimony was admissible under Article 5561h, sec. 2(c) and 4(a)(2). Ground of Error No. Twelve is overruled.

In Ground of Error No. Eleven, Appellant contends that the evidence was insufficient to support the jury verdict of competency. We disagree. Appellant presented lay witnesses, including Appellant’s father,, sister, minister and investigating police officers. The testimony disclosed that Appellant sustained a head injury when he fell at the age of five. He began to experience recurrent seizures when he was approximately nine years old. EEG tests were performed, epilepsy was suspected and anti-convulsant medication was prescribed. At age fourteen, Appellant began to exhibit behavioral problems at school and home. He also began to use alcohol and marihuana. Substance abuse increased until it was apparently terminated in October, 1981. In 1978, Appellant sustained a second head injury when he was the driver of a car involved in a collision. A third head injury occurred when he was involved in a fight outside a bar in 1979. Appellant’s family members testified that he began to noticeably withdraw in late 1981. His seizures continued. He began an intense reading and self-education program at home. By June, 1982, he was almost totally uncommunicative with his family. The offense occurred on October 8,1982. Appellant attacked his brother with a knife. His parents intervened. Both were injured, the mother fatally.

The State presented the testimony of Dr. Boris Kaim, Dr. Dale Johnson and Dr. David Briones. As previously noted, Kaim had served as a consulting physician with regard to Appellant’s medical condition in 1976. Kaim obtained the Appellant’s prior medical records from Appellant’s regular physician, Dr. Rathbun. He reviewed the two 1976 EEG test results. He ascertained the facts of the offense from Appellant’s father. He conducted a neurological examination and two more EEG tests. He was also familiar with the results of two EEG’s administered at Thomason General Hospital shortly after the offense. The first EEG in May, 1976, demonstrated slow brain activity. The second, in November, 1976, was normal. The two conducted at Thomason General Hospital were normal, as were the two carried out after Kaim’s court appointment. For the last test, in April, 1983, Kaim wished to use nasal electrodes. Appellant refused to submit without his attorney being present. Kaim testified that the abnormality seen in the May, 1976, EEG was not of a type associated with psychomotor epilepsy. The neurological examination also failed to disclose any brain damage. Kaim also stated that in conversing with him, the Appellant was able to relate details of the offense and asserted a clear recollection of the incident.

Dr. Johnson evaluated the results of psychological testing conducted on April 14, 1983. He found no evidence of mental disease or defect. Appellant’s full scale IQ was 96, slightly below the average of 100. Johnson testified that Appellant could probably perform at a level ten to fifteen points higher. This prediction was consistent with prior IQ results described by Appellant’s father. Johnson interpreted the results of the Minnesota Multiphasic Personality Index as indicating hostility, immaturity, impulsivity and a tendency to rebel. The sum total of the psychological tests indicated some emotional disturbance but not rising to a level of incompetence. There were no indications of physical brain defect. In Johnson’s opinion, Appellant was competent to stand trial.

At the time of his testimony, Dr. Briones had had access to all of the material previously described. He conducted two psychiatric examinations of the Appellant on February 24,1983, and March 3,1983. He also interviewed family members, consulted with other physicians and was aware of the facts of the offense. Briones testified that there was a possibility that Appellant suffered from psychomotor epilepsy, but that if so, it was mild and infrequent. The EEG test results had been consistently normal. He recommended anticonvulsant treatment as a precautionary measure. In his interviews with the Appellant, the latter did not indicate any amnesia. He declined to discuss the details of the offense. Briones concluded that Appellant suffers from major, complex psychiatric problems, exacerbated by alcohol and marihuana abuse. Despite a need for further psychiatric treatment, he concluded that Appellant Was competent to stand trial. The details of the offense and Appellant’s conduct at that time, as provided by other sources, were in Briones’ opinion inconsistent with psycho-motor epilepsy. If he were suffering from psychomotor epilepsy, he would only be incompetent while in the throes of a seizure, which generally last from a few minutes to a few hours.

The expert testimony offered by the State encompassed all of the foundation material urged by the Appellant at the competency hearing, prior to the plea, and now on appeal. Kaim found no neurological evidence of brain dysfunction and testified that Appellant was able to recall and relate some details of the offense. His diagnosis was consistent with those of Johnson and Briones, both of whom acknowledged Appellant’s psychological problems but concluded that he was competent. There was ample evidence to support the jury’s verdict of competency as of July 28, 1983. Ground of Error No. Eleven is overruled.

THE DECISION TO ACCEPT THE PLEA

Appellant has presented five grounds of error with regard to the trial court’s decision to accept his guilty plea. In Ground of Error No. Four, he contends that he was not competent to testify in response to the court’s admonitions and inquiries into competence. Ground of Error No. Five asserts that the court erred in accepting a plea of guilty since it was apparent that Appellant was not competent. Grounds of Error Nos. Eight and Nine complain of the court’s failure to grant a second competency hearing in lieu of accepting the guilty plea. Ground of Error No. Ten alleges that Appellant was denied due process of law, a fair trial and effective assistance of counsel by the court’s refusal to provide further psychiatric evaluation.

Appellant’s case was set for trial on November 14, 1983. Counsel for Appellant advised the court that his client wished to waive trial by jury and enter a plea of guilty. This was against the advice of counsel. Counsel further urged the court to provide further psychiatric evaluation and a second competency hearing. In support of these requests, counsel testified that throughout his representation of Appellant, the latter had refused to discuss the events surrounding the commission of the offense. He stated that in his opinion, Appellant was not competent to stand trial or enter a guilty plea. Subsequent to the July 28 competency verdict, the trial court did grant a motion for further psychiatric evaluation by Dr. Ben Hill Passmore. Dr. Passmore testified that he had interviewed the Appellant twice since the competency verdict. He had reviewed the above-mentioned medical history and the testimony presented in the competency hearing. Passmore testified that all of this information suggested a strong probability that the Appellant was psychotic at the time of the offense. He could not venture an opinion as to legal sanity. He testified that further examination and testing were necessary and that the evaluations done by the other experts were inadequate to produce a diagnosis with reasonable medical certainty. Upon inquiry as to competency, Pass-more testified:

He certainly has a factual understanding. It is very hard to state whether or not he has a rational understanding because he will not only not talk about the incident, but he will not discuss his reason for not talking about the incident.

In essence, Passmore did not testify that in his opinion Appellant was incompetent. As with regard to the sanity issue, he simply stated that further examination was necessary.

It is apparent that a primary concern of Passmore, as well as that of counsel, was Appellant’s unwillingness to discuss the events of October 8, 1982. This, coupled with refusal to follow counsel’s advice, is at the heart of these five grounds of error.

The same problem was addressed at the competency hearing. Other than in the session with Dr. Kaim, Appellant consistently declined to discuss the offense. The previous experts were aware of this behavior in making their evaluation and the jury was so advised, preparatory to their rendering a verdict. Appellant presented no evidence of a change or deterioration in his mental condition subsequent to the competency verdict on July 28. Nor was any “new evidence” of incompetency presented. New non-committal expert testimony was offered, but it was not founded upon any new diagnostic evidence.

We recognize that a verdict of either competency or incompetency is not res judicata of that issue. Ex parte Long, 558 S.W.2d 894 (Tex.Crim.App.1977); Almand v. State, 536 S.W.2d 377 (Tex.Crim. App.1976); Bledsoe v. State, 519 S.W.2d 646 (Tex.Crim.App.1975); Minor v. State, 624 S.W.2d 702 (Tex.App. — El Paso 1981, PDRR). In Minor, this Court stated that the legislature has not seen fit to require a change of condition as a prerequisite to a second hearing. That statement must be read in light of the context of Minor in which the trial court had ordered a second competency hearing, not refused one. The standard of review is whether the trial court abused its discretion. In this case, while not res judicata, the jury had determined the Appellant’s competency as of July 28. As previously concluded, there was no error in that finding. Under these circumstances, to complain of a denial of a second hearing, Appellant must put forth some evidence of a subsequent change in competency or some “new evidence” in a manner analogous to the newly discovered evidence basis for new trial. Any other procedural and evidentiary framework would effectively block trial on the merits. See also: O’Neil v. State, 642 S.W.2d 259, 262 (Tex.App. — Houston [14th Dist.] 1982, no pet.). Appellant presented no such evidence prior to the plea. Grounds of Error Nos. Eight, Nine and Ten are overruled.

In addition to the testimony of counsel and Dr. Passmore, Appellant now asserts that it was apparent from his own demean- or in the plea proceeding that he was not competent. In accordance with Tex.Code Crim.Pro.Ann. art. 26.13(b)(Vernon Supp. 1985), the court heard the foregoing testimony and made its own competency inquiry of the Appellant. While Appellant’s responses were primarily “yes” or “no,” there is nothing in the record to demonstrate bizarre, inappropriate or incompetent behavior. Appellant responded normally to questions from the defense counsel, the prosecutor and the court. He acknowledged counsel’s advice to pursue a plea of insanity as well as the possibility of a lesser included offense charge to the jury. He was aware of the potential for a jury grant of probation. He was aware that his pursuit of a guilty plea was against the advice of counsel. He responded appropriately to admonishment as to the range of punishment and the absence of a punishment recommendation by the State.

On appeal, the brief points to two responses as indicative of incompetence. The court couched a question in the negative:

THE COURT: And there is no delusive or persuasive hope of pardon that prompts you to confess your guilt in this matter, is this true?
DEFENDANT MILES: No, sir.
THE COURT: It is true, or is not true? There is no delusive or persuasive hope of pardon that prompts you to confess your guilt, is this correct, sir? DEFENDANT MILES: Yes, sir.
The confusion arises from the question not the answer — no, there is not, or yes, it is true there is not. Such a response to a negative question is common and hardly indicative of incompetence.

Secondly, in response to the prosecutor’s question concerning any promises of leniency, Appellant stated, “[tjhere was a plea bargain mentioned to me.” Appellant was referring to the pre-plea recommendation of the Adult Probation Department. Appellant acknowledged that as the source, and the difference between that and a prosecution recommendation was subsequently clarified. After which Appellant stated:

Yes. And the District Attorney’s Office also was supposed to have agreed with the recommendation the Probation Department proposed to the court.

Appellant was then advised of the absence of a State recommendation in this case. Appellant was able to follow the question and express his understanding. The initial confusion over the Probation Department recommendation and an acceptance of that recommendation by the State as a plea bargain is not uncommon and does not indicate incompetence. The plea proceeding record is devoid of evidence of Appellant’s incompetence to testify or enter a plea of guilty. Grounds of Error Nos. Four and Five are overruled.

CONDUCT OF THE PLEA PROCEEDING

Grounds of Error Nos. One, Two and Three assert that Appellant was not represented by counsel at the plea, that he was not advised of the dangers of self-representation in accordance with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and that he was denied effective assistance of counsel due to his incompetence (inability to assist counsel). Counsel contends that when the court refused to order either further psychiatric evaluation or a second competency hearing and refused to permit counsel to withdraw, he declined to participate in the plea proceeding. Hence, the plea was without counsel.

The record does not support the assertion. Counsel’s alternative motion to withdraw stated:

In the event that the Court desires to accept or entertain his plea of guilty, we believe that other counsel should be appointed with regard to this matter. We do not want to participate in any plea that he enters because we do not believe he is mentally capable of voluntarily entering such a plea.

The record does not affirmatively show “non-participation” by counsel. The court properly referred counsel to the State Bar of Texas, Ethical Considerations on Code of Professional Responsibility EC 7-7 (1972). If counsel’s asserted position were correct, we envision the absurd situation in which, following a guilty verdict, an attorney firmly convinced of his client’s innocence refuses to participate in the punishment phase. Such a response could not serve the needs of his client or the legal system. Dissatisfaction with lower court results is to be resolved by appeal, not non-participation.

In any event, we do not find this to be an uncounseled plea. Both counsel and Appellant testified that before the plea, Appellant was advised of the defense prospects for trial, the range of punishment and the consequences of a guilty plea. Appellant simply chose to follow a course not recommended by counsel.

The absence of counsel’s signature on the jury waiver form is not an indication of lack or deprivation of counsel. Neither Article 1.13 (Vernon 1977) or 26.13 (Vernon Supp.1985) of the Code of Criminal Procedure require counsel’s signature. Counsel was present throughout the proceeding. He objected to the State’s evidentiary summary and asked to be heard on the issue of punishment. Appellant had the assistance of counsel, not to make his decision for him but to advise him of the options and consequences. This is not a case of self-representation as in Faretta. Grounds of Error Nos. One, Two and Three are overruled.

In Ground of Error No. Six, Appellant contends that the record is insufficient to support four assertions in the judgment. The judgment recites a finding of competency at the time the plea was entered. As discussed above, the evidence was sufficient to support such finding.. Similarly, we have found that Appellant was in fact provided assistance of counsel and that counsel was present throughout the plea proceedings. The judgment is accurate in that regard. The judgment is incorrect in stating that counsel and Appellant waived in writing the ten days to prepare for trial provided in Tex. Code Crim. Pro.Ann. art. 26.04(b)(Vernon 1966). This indigent Appellant and counsel were provided slightly over three months notice of the trial setting. No waiver was necessary. The judgment may be reformed to reflect the actual sequence of events.

The record does not disclose a formal inquiry and announcement of ready. That is not an express requirement of the Code of Criminal Procedure. In any event, it is an established concept that trial may not proceed in the face of a justifiable assertion of unreadiness. Here, the Appellant was apparently ready to proceed with his guilty plea. Counsel contended that he was not ready, but the only basis therefor was the continued assertion of incompetence which we have found to be without merit. We can perceive no harm in the failure of the record to demonstrate a formal announcement of ready. Ground of Error No. Six is sustained only to the extent of reforming the judgment to reflect that ten days notice of trial was provided and deleting the reference to a written waiver of such notice.

In Ground of Error No. Seven, Appellant contends that he was denied his statutory and constitutional right of allocution prior to sentence. Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961); Tex.Code Crim.Pro. Ann. art. 42.07 (Vernon Supp.1985). When the State rested, the court inquired if Appellant had anything to say on his behalf. Appellant and counsel both responded negatively. The court accepted the plea, found Appellant guilty and assessed punishment at thirty-five years imprisonment. Counsel stated:

MR. GREEN: Your honor, with regard to punishment, I didn’t know the Court was going to assess punishment at this time. We would have some evidence on the punishment portion, if we are permitted to present that.
THE COURT: Mr. Green, the Court asked you if you had any evidence to offer at that time, sir.
MR. GREEN: I thought you were speaking in terms of the guilty plea itself,
- not in terms of sentencing.
THE COURT: Well, we will call a recess.

Appellant’s complaint is restricted to a denial of his right of allocution. That right is restricted by Article 42.07 to three enumerated issues, of which Appellant presently focuses on the second, competency. Appellant’s contention is without merit. An objection to denial of allocution is a prerequisite to appellate complaint. Tenon v. State, 563 S.W.2d 622 (Tex.Crim.App.1978); Graham v. State, 498 S.W.2d 197 (Tex. Crim.App.1973). Appellant’s trial objection did not refer to allocution rights but to his desire to present evidence on punishment. That does not comport with the appellate ground of error. In fact, the statement of facts does not disclose the ultimate result of the actual trial court objection. The court did not expressly rule on it, and the last statement in the record is the court’s announcement of a recess, not an adjournment. In any event, the trial objection is not raised on appeal, and the actual appellate complaint is without trial foundation. Appellant seeks to distinguish Tenon by asserting that competency under Article 42.07(2) had clearly been placed in issue in the case. It had, but not in the context of Article 42.07. The objection to terminating the proceeding made no reference to competency. Furthermore, our disposition of the other grounds of error found no error in the trial court’s handling of the competency issue. There is no evidence of a change in competency between the decision to accept the plea and the sentencing which followed immediately. Ground of Error No. Seven is overruled.

In Grounds of Error Nos. Thirteen and Fifteen, Appellant asserts that the court erred in denying his motion to dismiss due to pretrial publicity and a newspaper interview given by the prosecutor. A jury was waived; the plea was entered before the trial court. A trial judge, in the absence of record proof to the contrary, is presumed to disregard improper evidence or extraneous material. Counsel invites us to speculate that the pretrial publicity unduly influenced his client to plead guilty. Even if that were a valid basis for reversing a guilty plea, such influence is nowhere suggested in the record. Grounds of Error Nos. Thirteen and Fifteen are overruled.

The judgment is reformed to delete the reference to a waiver of ten days notice of trial and substituting therefor a recitation that ten days notice of trial had been provided Appellant and counsel. As reformed, the judgment is affirmed.


author: WARD, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY and the El Paso Police Department, Appellants, v. Thomas Watson WIGGINS, Appellee.
    No. 08-84-00353-CV.
    Court of Appeals of Texas, El Paso.
    March 13, 1985.

      W. Barton Boling, Asst. Atty. Gen., Mike Thompson, Asst. City Atty., El Paso, for appellants.
    Pat E. Dwyer, El Paso, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

WARD, Justice.

This is an appeal from the order of the trial court granting the expunction of criminal records under Tex.Code Crim.Pro.Ann. art. 55.01 (Vernon Supp.1985). Because the order of expunction was erroneous and based on no evidence, the order entered will be reversed and rendered.

The Petitioner, Thomas Watson Wiggins was arrested for various offenses occurring in El Paso County in December, 1969, and January, 1970.

The evidence, testimony and records admitted into evidence at the hearing on the Petition for Expunction established, without contradiction, that Petitioner’s arrest on December 18, 1969, resulted in felony indictments being presented against Petitioner in the District Courts of El Paso County, Texas, in Cause Nos. 22662, 22663, 22664, 22665 and 22701. The evidence, testimony and records further established the following as to those felony indictments:

(1) That in Cause No. 22662, Petitioner was indicted for the felony offense of assault with intent to rob, and that on February 10, 1971, on the motion of the District Attorney that further prosecution was not warranted, the court dismissed that indictment.

(2) That in Cause No. 22663, Petitioner was indicted for the felony offense of theft, and on February 1, 1971, Petitioner pled guilty to that indictment and was sentenced to four years in the Texas Department of Corrections. Petitioner stated in open court that he did not seek expunction of these records, and they were not expunged.

(3) That in Cause No. 22664, Petitioner was indicted for the felony offense of robbery by firearms, and that on February 10, 1971, on the motion of the District Attorney that further prosecution was not warranted, the court dismissed that indictment.

(4) That in Cause No. 22665, Petitioner was indicted for the felony offense of robbery by firearms, and that on February 10, 1971, on the motion of the District Attorney that further prosecution was not warranted, the court dismissed that indictment.

(5) That in Cause No. 22701, Petitioner was indicted in 1970, for the felony offense of assault with intent to rob, and that on July 21, 1971, on the motion of the District Attorney that further prosecution was not warranted because Petitioner pled guilty to four years to serve in Cause No. 22663 on February 1, 1971, the court dismissed that indictment.

As regards Petitioner’s El Paso County arrest on January 13, 1970, for the offense of contributing to the delinquency of a minor, Petitioner alleged in his petition that this arrest was Sheriff’s Case No. 27169 and further alleged that it was dismissed on February 10, 1971; however, Petitioner presented no evidence, testimony or records to support that allegation, and from the evidence in this case it is unknown what disposition was made of that arrest for contributing to the delinquency of a minor.

After the expunction hearing, the trial court entered the judgment granting all relief requested regarding the expunction of all records previously mentioned with the exception of those relating to the one upon which conviction resulted. Findings of fact and conclusions of law were requested and filed, among which we find the following:

FINDINGS OF FACT
(4) That although Petitioner Thomas Wiggins and his Attorney Pat E. Dwyer conducted an inquiry at the District Attorneys office of El Paso County, Texas and all records on the indictments in all the arrests and causes in this matter were unavailable and have either been destroyed or lost.
(6) That there is no record of any preliminary hearing or any examing [sic] trial in any of the indicted cases that were later dismissed or in Sheriff’s case number 27169.
(8) That the uncontroverted testimony of Petitioner Thomas Wiggins as to the lack of probable cause in the indicted cases that were dismissed as well as a review of all the testimony, evidence, and lack of evidence indicates and the court finds that there was absence of probable cause at the time of the dismissals in Cause Numbers 22664, 22665, 22662, and 22701 in 34th District Court of El Paso County, Texas and in Sheriff’s case number 27169.
(9) That the matters involved in this cause should be resolved once and for all; and that for a partial microfilm record that is gathering dust to impede th [sic] future of a young man who has an unblemished rehabilata-tive [sic] record of eleven plus years and a family to care and provide for merits equitable relief as well.

Among the interested parties, only the Texas Department of Public Safety and the El Paso Police Department answered, appeared at the trial and have perfected an appeal. Two points of error are presented, the first being to the effect that as a matter of law the Petitioner was not entitled to have his records expunged, and the second being that there was no evidence in the record or, in the alternative, insufficient evidence to support the order of expunction.

The purpose of Article 55.01, Tex. Code Crim.Pro.Ann. (Vernon Supp.1985), is to allow those persons who are wrongfully arrested to expunge those arrest records. Texas Department of Public Safety v. Failla, 619 S.W.2d 215, 217 (Tex.Civ.App. —Texarkana 1981, no writ). The right to expunction is available only when all the statutory conditions of the article have been met, the court having no equitable power to extend the clear meaning of the statute. See: Texas Commission on Law Enforcement Officer Standards and Education v. Watlington, 656 S.W.2d 666, 668 (Tex.App. — Tyler 1983, writ ref'd n.r.e.); Gilbert v. State, 437 S.W.2d 444, 446 (Tex. Civ.App. — Houston [14th Dist.] 1969, writ ref’d n.r.e.). One who would avail himself of the statutorily created rights embodied in Articles 55.01-55.05 thus cannot invoke the court’s equity powers in order to bend the clear requirements of Article 55.01, and none of the parties assert that Article 55.01 is unclear. See: Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711, 714 (1961); City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 974 (1931); Jensen v. Bryson, 614 S.W.2d 930, 933 (Tex.Civ.App. —Amarillo 1981, no writ). An expunction proceeding is civil in nature rather than criminal, with the burden of proving compliance with the statutory conditions resting solely with the petitioner. See: Ex Parte Paprskar, 573 S.W.2d 525, 528 (Tex. Crim.App.1978); Johnson v. Darr, 114 Tex. 516, 272 S.W. 1098, 1099 (1925); Cyrus v. State, 601 S.W.2d 776, 777 (Tex.Civ.App.— Dallas 1980, writ ref’d n.r.e.).

Paragraph (1) of Article 55.01 requires basically that no indictment or information charging the petitioner with a felony arise out of the transaction he was arrested for or if it was presented it has been dismissed because it resulted from a mistake, false information or other similar reason indicating an absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void.

We have examined the Petitioner’s testimony and there is none supporting any of the requirements set forth in paragraph (1) of the statute as to the indicted offenses. There was no evidence of any kind made as to the Sheriffs Case No. 27169. No evidence supports any of the referred to findings of fact. Unsworn statements and arguments made by Petitioner’s attorney are not evidence. Both points are sustained and the judgment of the trial court is reversed and judgment is hereby rendered that the Petitioner take nothing and that his request for expunction of any of the records be denied.


author: PAUL PRESSLER, Justice.

text:
    Frank Lavelle URBISH, Relator, Individually and as Next Friend of Michael Shane Urbish, a Minor, Appellants, v. Honorable W. Erwin JAMES, Judge, Respondent.
    No. B14-84-568-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 14, 1985.

      Grant Kaiser, Nick C. Nichols, Kronzer, Abraham, Watkins, Nichols, Houston, for appellants.
    John D. Wittenmyer, Conway, Storey & Wittenmyer, Wayne Adams, Lorance & Thompson, Kenneth S. Cannata, Conway & Wittenmyer, Houston, for respondent.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   PAUL PRESSLER, Justice.

This court issued its opinion in this matter on January 10, 1985. Relator filed a Motion for Rehearing En Banc. A panel of three judges who were not involved in the original opinion have voted to deny the Motion for Rehearing En Banc. Chief Justice J. Curtiss Brown recused himself. The opinion of January 10, 1985 is withdrawn and the following is substituted.

OPINION

Relator requests a Writ of Mandamus directing Respondent to vacate his holding on Relator’s Motion to Show Authority, the Motion for Re-hearing, and the Motion for Sanctions filed by his former wife and to hold that he has had the sole right to represent his son in all legal matters since the date of his appointment as permanent managing conservator. We deny the writ.

The following dates are important to our consideration:

March 24, 1975 — Relator filed petition for divorce from Mary Urbish.

April 25, 1975 — Temporary Orders were entered directing that Relator become temporary managing conservator of their children, Frank Lavelle Urbish, Jr. and Michael Shane Urbish.

July 22, 1975 — Mary Urbish filed a Petition for Divorce together with an agreement that Relator should be managing conservator of their children. The two divorce petitions were subsequently consolidated.

December 15, 1976 — The divorce case was dismissed for want of prosecution. Relator claims that after this dismissal he and Mary Urbish never lived together as man and wife and that he had custody and control over their children at all times.

July 9,1979 — Michael Urbish was severely burned in a fire.

July 12, 1979 — An employment contract was executed between Robert E. Taitón, Attorney at Law, and Mary Urbish, Individually, and as Next Friend of Michael Ur-bish.

July 20, 1979 — Mary Urbish, acting as Next Friend of Michael Urbish, filed a suit for personal injuries to Michael Urbish. On the same day Mary Urbish filed a new petition for divorce. A temporary restraining order was issued that day in which Mary Urbish was appointed temporary managing conservator.

September 27, 1979 — The order granting Mary Urbish temporary managing conser-vatorship was overturned. Relator’s parents were named temporary managing conservators of Michael Urbish.

July 1, 1981 — Relator and his parents filed a Petition in Intervention in the personal injury suit filed by Mary Urbish to recover for Relator’s injuries and those of his minor son.

December 10, 1981 — Divorce decree was entered and Relator was appointed permanent managing conservator of Michael Ur-bish.

December 17, 1981 — Employment contract entered into between Relator and the law firm of Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, whereby Relator acts as Next Friend to represent the minor plaintiff, Michael S. Urbish.

December 23, 1981 — Relator filed a Motion to Show Authority under TEX.R. CIV.P. 12 directed toward Mary Urbish and her attorneys.

December 29, 1982 — Motion to Show Authority was overruled by Judge Sharolyn Wood.

February 22, 1983 — Relator’s Motion for Rehearing was overruled by Respondent, to whom Relator’s file was transferred when Judge Wood’s term expired.

April 27, 1983 — Relator’s Motion for Leave to File a Petition for Writ of Mandamus was overruled by the Texas Supreme Court. In the petition, Relator requested the Court to direct Respondent to reverse his holding on Relator’s Motion to Show Authority to represent Michael Urbish and to enter an order that Mary Urbish and the law firm she had retained had no authority to represent the minor plaintiff since the order of December 10, 1981.

June 8, 1983 — Relator’s Motion for Rehearing was overruled by the Texas Supreme Court.

January 16, 1984 — Relator filed a Petition for Declaratory Judgment in Cause No. 84-01989 currently pending in the 11th District Court of Harris County based on questions raised in his Motion to Show Authority and in his request for Writ of Mandamus.

July 30, 1984 — A Motion for Sanctions in which Mary Urbish Stanley requested Respondent to order Relator and his attorneys to desist from representing themselves as attorneys for Michael S. Urbish was sustained. The Court ordered that Mary Ur-bish Stanley and her attorneys alone represent Michael S. Urbish and that Relator and his attorneys desist in representing themselves as attorneys for Michael Ur-bish.

In his original point of error, Relator argues that Respondent erred in holding that the managing conservator does not have the power and duty to represent his minor child and to make decisions of substantial legal significance concerning the child. Thus he contends that the orders overruling his Motion to Show Authority and granting Mary Urbish Stanley’s Motion for Sanctions are void and an abuse of judicial discretion. The Supreme Court or a Court of Appeals is empowered to issue a writ of mandamus to compel a lower court to vacate a void order. Aztec Life Insurance Company of Texas v. Dellana, 667 S.W.2d 911, 914 (Tex.App. — Austin 1984, no writ); See TEX.REY.CIY.STAT.ANN. arts. 1733, 1824 (Vernon Supp.1984); An order is deemed void when issued through an abuse of discretion by a judicial officer. Aztec Life Insurance Company of Texas at 914; Zenith Radio Corporation v. Clark, 665 S.W.2d 804, 806 (Tex.App. — Austin 1983, no writ); Norvell & Sutton, The Original Writ of Mandamus in the Supreme Court of Texas, 1 St. Mary’s L.J. 177, 181 (1969). It is also deemed void when issued by a court without jurisdiction or authority. State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272, 274 (1939); Aztec Life Insurance Company of Texas, 667 S.W.2d at 914. Relator contends that the orders in question are void because they violate the express provisions of § 12.04 and § 14.02 of the Family Code. He further alleges that the orders are void because Respondent did not have jurisdiction to issue them. In other words, he argues, they are contrary to the continuing jurisdiction of the district court which ordered the dissolution of Relator’s marriage between Relator and Mary Urbish, thereby violating § 11.05 of the Family Code. We disagree.

Relator repeatedly cites § 12.04 and § 14.02 for the proposition that because he was awarded permanent managing conser-vatorship of Michael Urbish according to the district court's determination of the “best interests” of the child, he has the sole legal right to represent his son in any suit which is to be heard by the trial court subsequent to his appointment as managing conservator. This court understands the reasons why Relator desires to exert control in this particular case. However, these statutes do not uphold this position.

Relator filed a Motion to Show Authority to challenge the authority of Mary Urbish to maintain the personal injury suit. The purpose of a Motion to Show Authority is to permit dismissal of suits instituted without authority. TEX.R.CIY.P. 12; See Mobile Homes of America v. Easy Living, 527 S.W.2d 847, 848 (Tex.Civ.App. — Fort Worth 1975, no writ); Angelina County v. McFarland, 374 S.W.2d 417, 422 (Tex.1964). Among the rights, privileges, duties and powers of a parent is the power to represent his child in legal actions and to make other decisions of substantial legal significance concerning the child. TEX. FAM.CODE ANN. § 12.04 (Vernon Supp. 1985). Mary Urbish had the authority to enter into an employment contract with her attorney for this representation and to institute the legal action as Next Friend of Michael Urbish on July 20, 1979 when the action was begun. She and Relator were not divorced on July 20, 1979, when she filed the personal injury suit. The previous consolidated petitions for divorce had been dismissed for want of prosecution. “[A] dismissal is in no way an adjudication of the rights of parties; it merely places the parties in the position that they were in before the court’s jurisdiction was invoked just as if the suit had never been brought.” Crofts v. Court of Civil Appeals for the Eighth Supreme Judicial District, 362 S.W.2d 101, 104 (Tex.1962); Gonzalez v. Mann, 583 S.W.2d 637, 640 (Tex.Civ.App.— Houston [14th Dist.] 1979), rev’d on other grounds, 595 S.W.2d 102 (1979); See Molinar v. Plains Insurance Company, 660 S.W.2d 845, 849 (Tex.App. — Amarillo 1983, no pet.). No other court-awarded conserva-torship was in effect when Mary Urbish was named temporary managing conservator of the minor child on the day she filed the suit. Also, as a natural parent of Michael Urbish, Mary Urbish was empowered by § 12.04 to represent the child in legal actions. No other suit had been filed at that time concerning the personal injuries suffered by Michael Urbish. Thus, Mary Urbish had the legal right to file the suit and represent her son as “Next Friend.” See Murray v. Templeton, 576 S.W.2d 138, 140 (Tex.Civ.App. — Texarkana 1978, no writ); See TEX.REV.CIV.STAT.ANN. art. 1994 (Vernon 1964); TEX.R.CIV.P. 44. The fact that Relator was subsequently appointed permanent managing conservator of Michael Urbish did not give him the power to force the dissolution of the contract entered into by Mary Urbish with her attorneys.

A parent appointed managing conservator of his child retains all the rights, privileges, duties and powers of a parent to the exclusion of the other parent, but subject to the rights, duties and powers of the possessory conservator. Included is “the power to represent the child in legal action and to make other decisions of substantial legal significance concerning the child including, except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, a power as an agent of the child to act in relation to the child’s estate ...” TEX. FAM.CODE ANN. § 14.02(a), (b)(6) (Vernon Supp.1985). Relator, as managing conservator, controls the estate of his son including any amount recovered in the personal injury case. To further protect the interests of Michael Urbish, a guardian ad litem has been appointed.

Relator has the statutory power to control any suit filed on behalf of his son subsequent to his appointment as managing conservator. Just as clearly, Mary Ur-bish had the legal right to file the suit in question at the time she filed it and to represent Michael Urbish as Next Friend. Relator has not cited any authority, and this court has not been able to find any, which supports Relator’s position that because he is now managing conservator of his son, the trial court, under the authority of TEX.R.CIY.P. 12, should dismiss the personal injury suit or remove Mary Urbish Stanley’s attorneys, thereby terminating the valid employment contract between Mary Urbish Stanley and her attorneys. Respondent did not abuse his discretion in overruling the Motion to Show Authority or the Motion for Re-hearing or in sustaining the Motion for Sanctions. The orders are not void.

Relator argues additionally that the concept of continuing jurisdiction as set forth in § 11.05 of the Family Code indicates that only the district court which awarded him the managing conservatorship has jurisdiction to hear this cause. He contends that “the 308th (district court) is the court which first acquired jurisdiction of the parentehild relationship here at issue.” Thus, he argues, the orders of which he complains were issued by a court without jurisdiction to issue them. Relator misconstrues the “parent-child relationship” in the context of the statute. When a court acquires jurisdiction of a suit affecting the parent-child relationship, it “retains continuing, exclusive jurisdiction of all parties and matters provided for under this subtitle (emphasis ours) in connection with the child. No other court of this state has jurisdiction of a suit affecting the parent-child relationship (emphasis ours) ...” TEX.FAM.CODE ANN. § 11.05(a) (Vernon Supp.1985). A “suit affecting the parent-child relationship” is one brought under Subtitle A of Title 2 of the Texas Family Code in which the appointment of a managing or possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought. TEX.FAM.CODE ANN. § 11.01(5) (Vernon 1975).

The orders Relator challenges are not the result of an attempt to affect the parent-child relationship as it is referred to in § 11.01(5) and § 11.05(a). They do not alter the appointment of the managing conservator, access to or support of the child, or termination of the parent-child relationship. The purpose of the orders is to insure that the attorneys legally employed by Mary Urbish Stanley may represent Michael Urbish in the personal injury suit. The orders may have some effect on the parent-child relationship, but they do not affect the outcome of a “suit affecting the parent-child relationship” as defined in the Family Code.

A suit for damages for appellant’s failure to make child support payments as provided in the property settlement agreement was found not to be within the “continuing jurisdiction” provisions of § 11.05 in Adwan v. Adwan, 538 S.W.2d 192, 193-195 (Tex.Giv.App. — Dallas 1976, no writ). In Adwan, the agreement provided that its terms should be binding as a contract. In deciding whether the domestic relations court which had acquired jurisdiction in a subsequent child custody suit also retained jurisdiction over matters relating to child support obligations, the appellate court examined the applicable provisions of Subtitle A of Title 2 of the Family Code to determine whether the support action was a “suit affecting the parent-child relationship.” Interpreting the provisions of § 11.-01(5) of the Code, the court found that the suit was not one “brought under this subtitle” as required in that section. Thus the suit was properly brought as a contract cause of action and the trial court was not precluded from hearing it by the “continuing jurisdiction” provision of § 11.05(a).

This court has held that where a marriage settlement agreement provided that it was to be enforceable as a contract, a suit to enforce the agreement was not a “suit affecting the parent-child relationship” brought under Subtitle A in which support of a child was sought. The principle of continuing jurisdiction of § 11.05(a) did not apply. Busbey v. Busbey, 619 S.W.2d 472, 475 (Tex.Civ.App. — Houston [14th Dist.] 1981, no writ); See Garza v. Schilling, 576 S.W.2d 147, 150 (Tex.Civ.App. — Corpus Christi 1978, no writ).

The personal injury suit brought by Mary Urbish Stanley is not a “suit affecting the parent-child relationship” brought under Subtitle A of Title 2 of the Texas Family Code. The 308th District Court did not acquire continuing jurisdiction of the personal injury suit to the exclusion of the district court in which the suit was filed when the 308th District Court awarded the managing conservatorship of Michael Ur-bish to Relator. The orders Relator challenges are not void.

Relator’s point of error is overruled.

The Motion for Rehearing is denied.


text:
    Clifton Eugene FAIN, Appellant, v. The STATE of Texas, Appellee.
    No. 08-84-00028-CR.
    Court of Appeals of Texas, El Paso.
    March 20, 1985.
    Rehearing Denied April 17, 1985.

      Martin Underwood, Comstock, Joseph A. Connors, III, McAllen, for appellant.
    Phil J. Pollan, Dist. Atty., Fort Stockton, Douglas M. Becker, Gray, Allison & Becker, Austin, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

OSBORN, Justice.

This is an appeal from a Conviction for aggravated rape in which the jury found two enhancement counts to be true. Punishment was assessed at life imprisonment. We reform and affirm.

Grounds of Error Nos. Six and Seven challenge the sufficiency of the evidence to prove Appellant’s identity as the defendant in the prior conviction alleged in the third count of the indictment and demonstrated by the penitentiary packet introduced as State’s Exhibit No. Three. Since the admissibility and contents of this exhibit have a bearing on the first five numbered grounds of error, we will initially address grounds six and seven.

As evidence of prior convictions for felony false imprisonment and rape, the State introduced two penitentiary packets, respectively marked as State’s Exhibits Two and Three. State’s Exhibit No. Two contains a certification page, certified copy of judgment and sentence, an identification page with fingerprints, physical description and commitment summary, and frontal and profile photographs of the inmate, with and without glasses. Rose Marie Hill, Reeves County Sheriff’s Office, was qualified as a fingerprint expert. Based upon comparison of the penitentiary packet fingerprints with a known set taken from the Appellant, she concluded that he was in fact the former inmate to whom State’s Exhibit No. Two referred. No appellate challenge is raised to the admissibility or sufficiency of this exhibit.

State’s Exhibit No. Three contains a certification page, certified copies of judgments, orders and sentences reflecting an initial probated sentence ultimately revoked, and profile and frontal photographs of the inmate. The packet does not contain fingerprints or a verbal physical description.

Appellant objected to State’s Exhibit No. Three on the basis of the absence of fingerprint identification in the packet. On appeal, he relies upon a somewhat similar situation in Littles v. State, S.W.2d — (Tex.Crim.App. # 801-83, Sept. 19, 1984), (State’s Motion for Rehearing granted Jan. 30, 1985). In Littles, one penitentiary packet with fingerprints was properly admitted. Due to a discrepancy in the denomination of the offense for which the inmate was incarcerated, the fingerprint page of the second packet was withdrawn from tender by the prosecution. The Court of Criminal Appeals phrased the appellate issue:

All that remained of the exhibit was the certified copies of the judgment and sentence, the photographs (front and side views) and the certification page. Was this enough to prove the second prior conviction as alleged?

With three judges dissenting, the en banc court proceeded to conclude that it was not. Based upon long established rulings, the certified copies of the judgment and sentence were not enough, even if the name were the same as that of the defendant on trial. Elizalde v. State, 507 S.W.2d 749, 752 (Tex.Crim.App.1974). The photographs were considered insufficient because they were not reinforced by corroborative physical and biographical description. Gollin v. State, 554 S.W.2d 683 (Tex.Crim.App.1977).

The court did not address the third source of information noted above — the certification page. We can only conclude that in Littles that source was devoid of evidentiary significance or was not urged by the State as a basis for the necessary connection to the defendant. We know from the case before us that separate incarcerations at TDC may result in different inmate numbers being assigned to the same individual. Conceivably, in Littles, the two penitentiary packets reflected two different inmate numbers with no cross-reference within either packet. In such a case, there would be no linkage between the defective packet and the defendant either directly or indirectly through a chain of proof from defective packet to sufficient packet to defendant. Such is not the case here. Appellant was properly identified as the subject of State’s Exhibit No. Two, Clifton Eugene Fain, TDC # 268149. The identification page in that packet reflects that he was returned to the Department of Corrections as a parole violator based upon his new conviction in Galveston County and that he was to continue the remainder of his sentence as 240024. The number 240024 was the assigned TDC inmate number for the Clifton Eugene Fain who was the subject of State’s Exhibit No. Three. Was this cross-reference from the good packet to the defective packet sufficient to distinguish the Littles decision? We conclude that it was. A similar result based upon name and cross-reference of inmate number was reached by Judge Odom in Steam v. State, 571 S.W.2d 177, 178 (Tex. Crim.App.1978). The present record provides greater proof of identity than Littles in other respects. Without cross-referenced inmate numbers, the second packet in Littles had to be linked directly to Appellant, and the photographs were held insufficient to accomplish that. Here, due to the cross-reference, the connective evidence forms a triangular link. State’s Exhibit No. Two is bound to the Appellant by fingerprints and photograph's. State’s Exhibit No. Three is bound to Two by inmate number and photographs. The photographs in both packets are dated and were taken one year apart. Their similarity is apparent in the record. A dual connection is therefore forged to the third apex, the Appellant in person. We further note that these two penitentiary packets, prepared by TDC at the request of the prosecuting attorney, were certified by the TDC records custodian on the same day, April 26, 1983. Thus, only the difference of one staple precludes the two exhibits from being in fact one packet. Steam at 178. The cross-reference by inmate number, endorsed by Steam, enables State’s Exhibit No. Three to be supported by Exhibit No.

Two with its fingerprint page. In Daniel v. State, 585 S.W.2d 688, 691 (Tex.Crim. App.1979), the Court of Criminal Appeals stated:

A search of our cases reveals that fingerprints which have been used to provide independent identification of a person convicted have invariably been a part of the record of conviction, obtained from the same government entity.

In this case, the same entity, TDC, took custody of Appellant on two separate occasions a year apart. His fingerprints became a part of his record there, as did two sets of photographs in 1976 and 1977. That same entity assigned him separate identification numbers on each occasion, but upon the second acquisition, referenced the first number and the continuation of his sentence under that number. In response to local request, that same entity prepared an evidentiary package with regard to that individual consisting of one packet for each conviction and a set of fingerprints attached to one but clearly relating to both. The reliability factor expressed in Daniel has been satisfied, and the defect encountered in Littles overcome. Grounds of Error Nos. Six and Seven are overruled.

Grounds of Error Nos. One and Four address an issue in the court’s charge on punishment. Although the first ground is phrased in terms of sufficiency of the evidence, the same issue is at the core of both complaints. The indictment alleged that Appellant had been twice previously convicted of felonies — once in 1972 for rape and once in 1977 for felony false imprisonment. In the application paragraph of the punishment charge, the court in part instructed the jury to find true to the enhancement allegations if they found beyond a reasonable doubt that Appellant had been convicted of:

(b) Rape in the Criminal District Court Number 72-201-C of the 54th Judicial District Court of McLennan County, Texas, on the 26th day of September, 1972, styled, “The State of Texas versus Clifton Eugene Fain”; and that such last named conviction of Rape, if any, occurred and the judgment thereon became final prior to the commission of the offense for which the said defendant was convicted, if he was, in Cause Number 72-201-C in the 54th Judicial District Court of McLennan County, Texas....

In the drafting or typing of the charge, an obvious mechanical error occurred in regard to the last named conviction referred to in the quoted portion. The 1972 conviction was again referred to rather than the 1977 conviction. Consequently, reading the application paragraph alone, to find true the jury would have to have found that the 1972 conviction became final prior to the commission of the offense upon which it was based. This did not comport with the indictment, the evidence or common sense.

A similar situation occurred in Lindley v. State, 629 S.W.2d 844, 846-847 (Tex.App.— Houston [14th Dist.] 1982, no pet.). Contrary to pleading and proof, the court instructed the jury to find true if they found that a 1974 conviction was final prior to the commission of a 1972 offense. In that case, the jury was kind enough to the trial and appellate judges to send out a note asking if the charge should not read in the reverse. Our present jury was not so gracious, but the error is no less obvious and susceptible to lay, common sense correction. In Lindley, the court submitted a correction which again produced error. Its supplemental instruction permitted a verdict of true upon a finding that the 1974 “conviction,” not the commission of the offense, occurred after the 1972 one was final. This second error was not preserved for review and the Fourteenth Court of Appeals examined the evidence and found that the proper sequence of conviction was not disputed at trial. The court concluded that due to the absence of an objection and the absence of any contest on this issue the error was not reversible. In the recent decision in Almanza v. State, 686 S.W.2d 157 (Tex. Crim.App.1985), a majority of the Court of Criminal Appeals agreed on a reanalysis of the review of fundamental error in the court’s charge. Where a charge error is not objected to in the trial court, the automatic reversal approach indicated in Cumbie v. State, 578 S.W.2d 732 (Tex.Crim.App.1979) has been overruled. Upon finding an error such as that presented in this case, the appellate court must review the entire record to determine actual, not theoretical, harm to the defendant. Applying Alman-za to the present record, we find no reversible error. While Appellant has presented several grounds of error addressing the pleading, proof and charge with regard to proper sequence of conviction, none address the sequence issue raised by this charging error. Rather they address the effect of the initial grant of probation in the 1972 conviction, which was ultimately revoked in 1974. As discussed below, those grounds of error are without merit themselves. In any event, they are unrelated to the error presently presented. In light of the actual issues at trial, as embodied in the evidence and arguments of counsel, we find that these two grounds of error present no actual, egregious harm, leading to a denial of a fair and impartial trial. Grounds of Error Nos. One and Four are overruled.

In Grounds of Error Nos. Two, Three and Five, Appellant presents several complaints which turn upon the finality of the first 1972 conviction. That offense was committed on July 22, 1972. Appellant pled guilty on September 26, 1972, and was placed on probation for five years on November 16. On May 13, 1974, probation was revoked and a five-year sentence imposed (State’s Exhibit No. Three). The subsequent offense alleged in the indictment was committed on October 15, 1976.

Ground of Error No. Two asserts that there was no evidence that Appellant was convicted on September 26,1972, as alleged in the indictment, since that was simply the date upon which he pled guilty. Ground of Error No. Three contends that the indictment alleges commission of the 1977 offense subsequent to the finality of the 1972 conviction, which did not occur until revocation in May, 1974, not September, 1972. Ground of Error No. Five contends that the indictment allegation of the time of the 1972 conviction was vague and indefinite.

With regard to the latter contention, there was no objection to the indictment on grounds of inadequate notice and no showing of any harm or prejudice to the Appellant in the preparation of his defense. Complaint of a notice defect in a charging instrument will not be heard for the first time on appeal. Schneider v. State, 594 S.W.2d 415, 418 (Tex.Crim.App.1980); Coleman v. State, 577 S.W.2d 486 (Tex.Crim.App.1979). Ground of Error No. Five is overruled.

In examining the indictment, we note that the previous prosecutions were referred to simply as convictions, and the sequence of events was described by reference to the dates of conviction not “final” conviction. This has been held to be a sufficient allegation of finality. Watson v. State, 605 S.W.2d 877, 888 (Tex.Crim.App.1980); Williams v. State, 596 S.W.2d 862 (Tex.Crim.App.1980). The charge to the jury expressly required finality as a basis for a verdict of true.

With regard to the specific complaint raised on appeal, there is no error in alleging the date upon which the conviction was had by entry of plea and adjudication of guilt, as long as any resulting probation of sentence is shown by the evidence to have been revoked and the conviction finalized prior to the commission of the subsequent enhancing offense. Loud v. State, 499 S.W.2d 295, 297 (Tex.Crim.App.1973). The evidence in this case clearly establishes that the probation in the first rape case had been revoked and that the conviction had become final two years before the commission of the next offense leading to conviction. Grounds of Error Nos. Two and Three are overruled.

Ground of Error No. Eight is predicated upon the sustaining of those grounds of error challenging the enhancement verdict and asserts a right to the judicial imposition of a minimum five-year sentence. Having failed to invalidate the enhancement result, this ground of error is without merit and is overruled.

In Ground of Error No. Nine, Appellant contends that the evidence was insufficient to establish venue in Pecos County. Venue need only be established by a preponderance of the evidence. Tex.Code Crim.Pro.Ann. art. 13.17 (Vernon 1977). The venue for a sexual assault rests in the county where the offense was consummated or in any county to which or through which the victim is carried in the course of an abduction associated with the assault. In this case, we need not speculate as to the time at which the culpable intent arose and hence the time at which the complainant became a “victim.” A preponderance of the evidence established that the site of the offense was in Pecos County. Witnesses testified that the distance from Fort Stockton to Alpine was approximately sixty-four miles along Highway 67. The county line is approximately halfway along that route. The complainant’s vehicle stalled at a roadside park variously estimated at fifteen to twenty-seven miles or fifteen minutes from Fort Stockton and some thirty to forty miles from Alpine. Appellant picked up the complainant and made two trips to Fort Stockton, first to purchase then to return a repair part for her car. On the way back toward the stalled vehicle and Alpine, Appellant turned off Highway 67 and committed the rape. This was on the Fort Stockton side of the complainant’s vehicle and hence clearly within Pecos County. Furthermore, the Pecos County Sheriff’s Office contacted Barbee Wrecker Service of Fort Stockton to recover the complainant’s vehicle. Fred Prano, an employee of Barbee, testified that he retrieved the vehicle for his company because it was located in their county. This further established the location of the vehicle and consequently the rape site in Pecos County. Ground of Error No. Nine is overruled.

In Ground of Error No. Ten, Appellant requests reformation of the sentence to reflect conviction for rape, not aggravated rape. Appellant was indicted for aggravated rape. The charge to the jury, however, only presented abstract definitions and an application of the law to the facts with regard to rape. The jury was not instructed with regard to the aggravating element of the threat of imminent infliction of death or serious bodily injury. The jury verdict recites guilt of “rape as charged in the indictment,” as does the judgment. Paragraph two of the punishment charge reflects that the jury had convicted Appellant of “Rape” without reference to the indictment. The court’s punishment charge further instructed the jury that in the event they found the enhancement allegations untrue they were to assess punishment within the second-degree felony range. The sentence reflects conviction for aggravated rape. The State seeks to rely upon the “as charged in the indictment” language to forestall reformation. Jason v. State, 589 S.W.2d 447, 451 (Tex.Crim.App.1979), cited by the State, does not support that position. In Jason, regardless of shorthand titles for the offense committed, the charge to the jury did include the aggravating elements of the indicted offense. In this case, the jury was never called upon to consider that element. In effect, through inadvertence of the trial court and the prosecution, the Appellant was unjustly enriched by the submission of only a lesser included offense. The sentence must be reformed to reflect conviction for rape. This result, nonetheless, necessitates nothing more than a reformation of judgment and sentence to reflect a habit-ualized conviction for second-degree felony rape. Both the offense and the trial occurred prior to the September 1, 1983, effective date of the latest amendment to Tex.Penal Code Ann. sec. 12.42 (Vernon Supp.1985). Consequently, the result of the jury’s findings as to the enhancement counts would be the same whether the primary offense were rape or aggravated rape. Ground of Error No. Ten is sustained.

In Ground of Error No. Eleven, Appellant complains that the State exposed his marital status to the jury venire during voir dire. The contention is without merit. A member of the venire voiced this information in an unsolicited response to the prosecutor’s inquiry into possible acquaintances of Appellant himself. Wilhoit v. State, 638 S.W.d 489, 492 (Tex.Crim.App.1982). Furthermore, the information elicited did not disclose his marital status at the time of the alleged offense. Id. Finally, Appellant raised no objection and made further open inquiry regarding possible acquaintances of his wife. Hanner v. State, 572 S.W.2d 702 (Tex.Crim.App.1978). Ground of Error No. Eleven is overruled.

The judgment and sentence are reformed to reflect conviction for rape, deleting all references to either aggravated rape or rape as charged in the indictment. As reformed, the judgment is affirmed.