author: TATUM, Judge. DAUGHTREY, Judge, separately

text:
    STATE of Tennessee, Appellee, v. Francis Donna FRAZIER, and Sharon Theresa Probst, Appellants.
    Court of Criminal Appeals of Tennessee, at Jackson.
    Oct. 25, 1984.
    Permission to Appeal Denied by Supreme Court Dec. 31, 1984.

      Phillip E. Kuhn, Memphis, for Frazier. Arch B. Boyd, III, Memphis, for Probst.
    William M. Leech, Jr., Atty. Gen., Gordon W. Smith, Asst. Atty. Gen., Nashville, P. Thomas Hoover, John Candy, Asst. Dist. Attys. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

Defendant, Francis Donna Frazier, was convicted of two counts and defendant Sharon Theresa Probst, was convicted of one count of presenting live obscene dances in violation of the obscenity statute (T.C.A. § 39-6-1104).

Punishment of each defendant on each count was fixed at sixty (60) days in the Shelby County Correctional Center. Frazier was manager of “The Follies,” a topless nightclub owned by Playgirl, Inc., which was also convicted but did not appeal. After considering the issues presented by Frazier and Probst, we affirm their convictions.

We first address defendant Probst’s issue attacking the sufficiency of the evidence. The accredited evidence established the following facts:

On May 29, 1981, John Mark DiScenza, a Memphis police officer assigned to a special task force investigating obscenity, went to the Memphis Topless Nightclub known as “The Follies” along with Assistant Shelby County Attorney General Kathleen Spruill, and a friend of hers known as Patty. That night DiScenza observed between twenty and twenty-five dancers, each performing three dances. Officer DiScenza saw Sheila Diane Perkins, known as “Heartbeat,” perform on stage and at a table dance. On stage, Ms. Perkins removed her clothing, fondled herself, and exposed her genitals to the customers. Ms. Perkins also rubbed her face between the legs of a male customer in an act of simulated oral sex.

Officer DiScenza testified that on that evening he also saw defendant Probst, whose stage name was “Dawn,” perform several stage dances. He described the dance:

“A. Okay. She would get up on stage like the other girls. They would call her name and she would get up. I don’t remember what she was wearing. I know she had a cowboy hat on and she would remove her clothing and come to the edge of the stage and she would spread her legs about three or four feet apart and squat down and spread her legs out like that and then took her hand and came on up and then she would stand back and turn around and bend over and expose her anal section toward the customers. She did this around the stage. She probably did about three dances that night in the same manner.” He testified that she rubbed her vaginal area and her breasts. Frazier was manager of “The Follies” and sponsored these dances.

Defendant Probst insists that the evidence is insufficient to support a finding that she presented an obscene live performance in violation of T.C.A. § 39-6-1104. The record, however, contains sufficient evidence from which a rational trier of fact might conclude that she was guilty beyond a reasonable doubt of violating the obscenity statute. Rule 13(e), T.R.A.P.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Nude dancing, while not in itself obscene, may become obscene when combined with certain sexual conduct such as lewd exposure of the genitals — e.g., Commissioner of Bldgs, v. Sidne Enterprises, Inc., 90 Misc.2d 386, 391, 394 N.Y.S.2d 777 (Sup.Ct.N.Y.Co., 1977). — or the fondling of one’s own breasts and vaginal area while dancing — e.g., People v. Better, 33 Ill. App.3d 58, 337 N.E.2d 272 (1975). The dancing of defendant Probst, as described by the above-summarized testimony of the State’s witness, included the rubbing of her own breasts and vaginal area, and further, could be said to constitute the lewd exposure of her genitals. This evidence was more than sufficient to present a jury issue as to the obscenity of her conduct. See Brazelton v. State, 550 S.W.2d 7, 9 (Tenn.Crim.App.1974).

The jury was properly instructed in accordance with the constitutional standards enunciated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and T.C.A. § 39-3001 (now § 39-6-1101(5)), that

“ ‘Obscene’ means: (A) That the average person applying contemporary community standards would find that the work taken as a whole appeals to the pruient interest; (B) That the work depicts or describes, in a patently offensive way, sexual conduct; and (C) That the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”

“A juror is entitled to draw on his own knowledge” of contemporary community standards in determining whether certain conduct is obscene, “just as he is entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hambling v. United States, 418 U.S. 87,104, 94 S.Ct. 2887, 2901, 41 L.Ed.2d 590, 613 (1974). The jury’s finding in this case that the dancer’s conduct met the constitutional test of obscenity was amply supported by the evidence. This issue has no merit.

We next address defendant Frazier’s contention that the obscenity statute, T.C.A. § 39-6-1104, violates the First Amendment right to privacy because it im-permissibly prohibits private sexual conduct between consenting adults. We find this contention to be without merit, and re-affirm the statute’s constitutionality.

The United States Supreme Court has established that obscenity is not expression protected by the First Amendment. Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, 430 (1973); Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, 1507 (1957). In Leech v. American Booksellers Association, Inc., 582 S.W.2d 738 (Tenn.1979), the Tennessee Supreme Court adopted the federal constitutional standards on obscenity as outlined in Miller v. California, supra.

One of the primary justifications for obscenity regulation is the State interest in shielding juveniles and unconsenting adults from obscene material. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); however, obscene materials do not acquire constitutional immunity from State regulation merely because they are exposed solely to consenting adults. The State has “the power to make a morally neutral judgment that public exhibition of obscene materials, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize the State’s ‘right to maintain a decent society.’ ” 3 Wharton’s Crim.L. § 305 (14th Edition 1980) (quoting Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964). Moreover, the right to privacy affords no constitutional protection for obscenity outside the home. United States v. Onto, 413 U.S. 139, 142-43, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513, 518 (1973). As the Supreme Court has observed,

“(t)he idea of a ‘privacy’ right and a place of public accommodation are, in this context, mutually exclusive. Conduct or depictions of conduct that the state police power can prohibit on a public street does (sic) not become automatically protected by the Constitution merely because the conduct is moved to a bar or a ‘live’ theatre stage ...”

Pans Adult Theatre I v. Slaton, supra, 413 U.S. at 66-67, 93 S.Ct. at 2640.

Defendant Frazier next insists that the trial court’s consolidation of the two indictments and admission of evidence of other matters not occurring on the date of the instant offense violated her due process right to a fair and impartial trial. We disagree.

The trial court allowed the consolidation of indictments 81882 and 81883. The State proceeded to trial on counts 2 and 4 in indictments 81882, and counts 1, 2, and 4 in indictment 81883. Count 2 of indictment 81882 charged defendant Frazier with presenting an obscene live performance on May 29, 1981, involving Shelia Diane Perkins; count 4 charged Playgirl, Inc., doing business as The Follies, with presenting that same performance. Count 1 of indictment 81883 charged defendant Probst with presenting an obscene live performance on May 29, 1981; count 2 charged defendant Frazier with presenting that same performance; and count 4 charged Playgirl, Inc., with presenting that performance.

Rule 13(a), T.R.Cr.P., permits consolidation of indictments for trial where the offenses and all of the defendants could have been joined in a single indictment pursuant to Rule 8. The offenses in indictments 81882 and 81883, arising from the same criminal episode, were appropriate for mandatory joinder under Rule 8(a). Moreover, since the offenses charged were part of a common scheme or plan, permissive joinder was appropriate pursuant to Rule 8(c)(3)(i). Thus, consolidation of the indictments for trial was proper. State v. Peacock, 638 S.W.2d 837 (Tenn.Crim.App. 1982). Furthermore, the trial court did not err in denying Frazier’s motion for a severance of offenses made before trial. No evidence was introduced against Frazier that would not have been admissible against her in a separate trial. “A severance was not necessary to achieve a fair determination of (Frazier’s) guilt or innocence, and (she) was not unfairly prejudiced.” State v. Hammonds, 616 S.W.2d 890 (Tenn.Crim.App.1981). See Rule 14(c)(2), T.R.Cr.P.; Woodruff v. State, 164 Tenn. 530, 538, 51 S.W.2d 843, 845 (1932).

Likewise, the trial court properly admitted evidence of other matters not occurring on the date of the instant offense. The general rule is that proof in a criminal prosecution tending to show that the accused is guilty of the commission of other crimes and offenses is inadmissible for the purpose of proving the commission of the particular crime charged; however, evidence of other crimes or acts of misconduct may be introduced for other limited purposes, such as to show guilty knowledge or intent. Collard v. State, 526 S.W.2d 112, 114 (Tenn.1975). Evidence that the investigating police officer had been to the club on other occasions and had seen similar conduct was admissible to show the guilty knowledge of Frazier and Playgirl, Inc. as to the obscene performance in the club. The trial court properly instructed the jury on the limited purpose of this evidence. Proof that on August 30, 1980, defendant Frazier stated, when advised of possible violations, that her club was doing no more than any other topless nightclub in the city, was relevant to show her knowledge of the activities at the club. Proof that in September, 1980, Frazier admitted at a beer board hearing that she was the manager of the club was relevant to show that she presented the obscene performance on May 29, 1981. Finally, proof that other dancers performed similar conduct on May 29, 1981 was relevant to show the intent and guilty knowledge of Frazier and Playgirl, Inc., on that date. The evidence did not prejudice Probst.

Both defendants next allege numerous instances of prosecutorial misconduct throughout the trial. They claim that this prosecutorial misconduct was prejudicial to them, and denied them a fair and impartial trial in violation of their federal and State due process rights. After careful consideration of the record, we find that the allegations of prejudicial prosecutorial misconduct have been waived in part, and that the remaining allegations are without merit.

In her motion for a new trial, defendant Frazier specifically alleged that (1) the prosecutor improperly used police reports by the State’s witnesses in the presence of the jury, and (2) the prosecutor wrongfully interjected in voir dire, opening statement, and closing arguments, the harmful nature of pornography, implications of children’s exposure to obscenity, and the “good of the community.” Frazier’s motions for a new trial also alleged that the prosecutor’s “constant and persistent questioning of witnesses to elicit irrelevant, inadmissible and highly prejudicial responses from them in the presence of the jury ... had a cumulative effect denying the defendant a fair and impartial trial as required by due process .... ” Her motion for a new trial stated:

“All mistrial requests and objections to prosecutorial conduct as argued at the trial and if the trial court wishes to have said errors specified with more factual particularity, then the defendant specifically requests the argument on the Motion for New Trial continued until such time as the Court reporter can transcribe the trial record and trial counsel can have a reasonable opportunity to review the trial record in this cause.”

Finally, Frazier specifically reserved the right to file amended motions for a new trial. Defendant Probst adopted Frazier’s motion for a new trial. Neither motion was ever amended.

On appeal, defendants assert numerous specific instances of alleged deliberate and prejudicial prosecutorial misconduct. We hold that, with the exception of the allegations specifically raised in the motion for a new trial, the defendants’ claims of prosecutorial misconduct have been waived. Rule 3(e), T.R.A.P., requires that issues be specifically raised in a motion for a new trial; otherwise such issues are waived. This court has held that grounds asserted

“must be specified with reasonable certainty in a motion for a new trial to advise the trial court and opposing counsel of the alleged error or irregularities relied upon and to enable the appellate court to see that the alleged error was presented to the trial court for correction as required by Rule 36(a), T.R.A.P.”

State v. King, 622 S.W.2d 77, 79 (Tenn.Crim.App.1981).

We find that, except for the particular allegations noted above, the grounds relied upon in the motion for a new trial were not specified with reasonable certainty.

The reference to “all mistrial requests and objections to prosecutorial conduct” in the motion for a new trial does not comply with Rule 3(e), T.R.A.P. Alleged errors not specified with reasonable certainty were waived.

With regard to the allegations properly preserved for appeal, we find no basis for reversal. The test for appellate review of allegations of prosecutorial misconduct is “whether the improper conduct could have affected the verdict to the prejudice of the defendant.” Harrington v. State, 215 Tenn. 338, 340, 385 S.W.2d 758, 759 (1965). Our analysis is concerned with “the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219,102 S.Ct. 940, 947, 71 L.Ed.2d 78, 87 (1982). Applying this test, we find that the remaining allegations of misconduct could not have affected the verdict to the prejudice of the jury, and, as such, are not reversible. These matters are most innocuous. Defendants’ first allegation is that, during his redirect examination of the investigating officer, the prosecutor improperly asked the witness to look at his police report and see if Danny Owens, the owner of the club, was present when the officer observed the obscene conduct. The trial judge sustained the defense objection to the use of police reports in that fashion and admonished the prosecutor to follow the Rules of Criminal Procedure in using such reports, but found that no prejudice to the defendant had occurred. Second, the record reflects that when the prosecutor asked during voir dire, “Do you think that young people know too much about sex these days? ”, the trial judge sustained the objection on relevancy grounds and properly instructed the jury.

The defendants have gone through the record of this four-day trial and listed questions asked witnesses by the State, questions asked on voir dire, opening statements and argument saying that the cumulative effect constitutes prosecutorial misconduct which denied fundamental due process. We have considered these matters and disagree that fundamental reversible error was committed with reference to them. Issue III is overruled.

The defendants next contend that the failure of the State to reveal an eyewitness known only to the State violated their due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). We hold that the defendants have waived this issue.

The record reveals that the defendants made no pre-trial request for discovery of eyewitnesses pursuant to Rule 16, T.R.Cr.P. Any request for discovery under Rule 16 must be made prior to trial or the State’s alleged failure to produce is waived. Rule 12(b)(4) and (f). Moreover, the defendants did not raise the issue at trial or in their motions for a new trial. The issue was waived. Rule 3(e), T.R.A.P., State v. Sutton, 562 S.W.2d 820 (Tenn. 1978); State v. Shelton, 649 S.W.2d 24 (Tenn.Crim.App.1983).

The defendants next insist that the trial court committed reversible error by improperly instructing the jury. They claim the trial court erred in (1) instructing the jury that, for the purpose of “community standards,” “community” meant the State of Tennessee; (2) instructing the jury to give the defendants' testimony “such weight as you may think it entitled to;” (3) denying a special request for instructions on “specific intent;” (4) denying a special request that mere knowledge and presence are not enough for a conviction; and (5) giving an inadequate jury instruction on “constructive knowledge.” After considering each of defendants’ contentions separately, we find the trial court’s jury instructions were proper.

First, the defendants claim that, in instructing the jury on “community standards,” the court should have charged that “community” referred to Shelby County, instead of the State of Tennessee. We find that the trial court properly instructed the jury, in accordance with the definition section of the obscenity statute, T.C.A. § 39-6-1101(1), that “community” refers to the State of Tennessee. The definitions contained in that section have been held to comport with the constitutional requirements set forth in Miller v. California, supra. Taylor v. State, 544 S.W.2d 897, 902 (Tenn.Crim.App.1976). We reaffirm the constitutionality of the statutory definition of “community.”

The defendants’ second contention is that the trial judge improperly commented on the evidence in his charge to the jury that when a defendant takes the stand on his/her own behalf, they were to give “to such defendant’s testimony in this case such weight as you may think it entitled to.” This instruction was taken from Tennessee Pattern Jury Instruction — Criminal 37.01. We find no error in the use of this instruction.

At common law, an accused was disqualified from testifying in his own behalf. This rule has been abolished in the United States. 2 Wigmore, Evidence § 579 (Chadbourne rev. 1979). In Tennessee, a person accused of a crime is constitutionally entitled to testify in his own behalf. Tenn. Const. Art. I, § 9; T.C.A. § 40-14-101, Campbell v. State, 4 Tenn.Crim.App. 100, 469 S.W.2d 506 (1971). Moreover, a defendant who voluntarily takes the stand in his own behalf is subject to the same consideration as any other witness. Peck v. State, 86 Tenn. 259, 6 S.W. 389 (1888). The trial judge was doing no more than instructing the jury, in accordance with well-settled Tennessee law, that the jurors are the sole and exclusive judges of the facts and the credibility of witnesses and the weight to be given witness testimony and that a testifying defendant is entitled to the same consideration as any other witness. See also Shiflet v. State, 216 Tenn. 365, 368, 392 S.W.2d 676, 678 (1965); Holt v. State, 210 Tenn. 188, 197-98, 357 S.W.2d 57, 62 (1962).

The defendant also challenges the trial court’s denial of the requested instruction on specific intent and the requested instruction that mere knowledge and presence are not enough to convict. We find that both of these requests were adequately covered by the general charge; thus, no error resulted. State v. Keele, 644 S.W.2d 435, 438 (Tenn.Crim.App.1982).

The defendants’ final contention with regard to the trial court’s instructions is that the court’s general charge on “constructive knowledge” was insufficient. The trial court charged verbatim the definition of constructive knowledge as contained in T.C.A. § 39-6-1101(3); therefore, this instruction was correct and sufficient.

Defendant Probst next insists that the trial court erred in failing to grant a new trial on the ground of jury misconduct. Specifically, she alleges that the jury disregarded the trial court’s instructions and engaged in deliberation on the case prior to the conclusion of the proof. In support of her allegation, defendant Probst offers the affidavit of Attorney Arch B. Boyd, III, who received this information from an alternate juror. We hold that the trial court properly denied the motion for a new trial on the ground of jury misconduct.

This court has recognized that Rule 606(b), Federal Rules of Evidence, is essentially a codification of Tennessee law with respect to the scope of appellate review on the validity of a jury verdict. State v. Blackwell, 664 S.W.2d 686, 689-9 (Tenn. 1984); Montgomery v. State, 556 S.W.2d 559, 560-62 (Tenn.Crim.App.1977). Rule 606(b) provides that

“A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberation or to the effect of anything upon his or any other juror’s mind or motion as influencing him to assent to or dissent from the verdict ... or concerning his mental processes in connection therewith, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.”

The alleged discussion by the members of the jury does not constitute “extraneous prejudicial information” or “outside influence.” Therefore, the affidavit was not admissible in evidence. FRE 606(b); Montgomery v. State, supra.

Finding no error, we affirm the judgments of conviction.

SCOTT, J., concurs.

DAUGHTREY, J., dissents.

DAUGHTREY, Judge, separately

dissenting.

Given the vagueness of the testimony regarding defendant Probst’s conduct in this case, I do not believe that the evidence is constitutionally sufficient to support her conviction, and I therefore dissent.

Although the United States Supreme Court has never decided a case involving a live performance on its merits, the Court has indicated that “the customary ‘bar room’ type of nude dancing may involve only the barest minimum of protected expression” but that “this form of entertainment [may] be entitled to First and Fourteenth Amendment protection under some circumstances.” Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975), citing California v. LaRue, 409 U.S. 109,118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1972). Moreover, in the landmark case of Miller v. California, the Court held that “no one [should] be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct_” 413 U.S. 15, 27, 93 S.Ct. 2607, 2616, 37 L.Ed.2d 419 (1973).

Probst’s activities in this case can hardly be described as “hard core.” According to the testimony of Officer DiScenza, her conduct was not materially different from that depicted in publications currently sold in virtually every newsstand and convenience market in Tennessee.

To the extent that activities like those in this case require regulation, they are more appropriately and effectively regulated by our Alcoholic Beverage Commission. See generally California v. LaRue, supra. By pursuing this latter route, the state both conserves its criminal prosecution reserves and avoids the risk of violating the First Amendment.

Sexual exploitation of children may also be regulated without running afoul of the constitution. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). But there was no evidence of the involvement of children in this case, either on the stage or in the audience. What we have instead is a group of adults who may have been misguided in their desire to watch what many would find to be a distasteful and vulgar performance, but none of whom were forced to attend nor exposed involuntarily to that performance.


source: Caselaw Access Project

author: CAMPBELL, Justice.

license: Public Domain

text:
    Norma WIEMERS et al., Petitioners, v. Edwin J. WIEMERS et al., Respondents.
    No. C-2675.
    Supreme Court of Texas.
    Oct. 31, 1984.
    Rehearing Denied Feb. 6, 1985.
    Brite, Drought, Bobbitt & Halter, James L. Drought and Calhoun Bobbitt, San Antonio, for petitioners.
    Porter, Madalinski, Mayo, Salyer & Sims, Robert P. Sims, Jack B. Sims, San Antonio, for respondents.
   CAMPBELL, Justice.

This is a declaratory judgment action to determine whether the George H. Wiemers and Ida J. Wiemers joint will is contractual. Wesley C. Wiemers, deceased, is the named beneficiary of the real property. His widow, Norma, and their children bring this suit. Respondents, Edwin J. Wiemers et al., are beneficiaries of a will executed by Ida J. Wiemers after the death of her husband George. The trial court held the will was not contractual and rendered judgment for Edwin. The court of appeals affirmed the trial court judgment. 663 S.W.2d 25. We reverse the judgments of the trial court and the court of appeals and declare the will contractual.

The 1951 joint will provides:

... [W]e, Geo. H. Wiemers and Ida J. Wiemers, husband and wife, ... desirous of settling our worldly affairs ... do hereby make, publish and declare this instrument to be our joint and individual last will and testament, that is, it expresses our joint wishes and desires, ... and is to be probated ... as the last will and testament of each of us .... (emphasis added).

FIRST

It is our joint will and desire that the survivor of our marital union shall have and be entitled to the full possession, use and enjoyment of all property, real and personal, separate and community which we or either of us may own at the time of death of the one who dies first; and that at the time of the death of the survivor of our union, aforesaid, that the whole of our real estate, ... shall pass to and vest, in fee simple, to our son, Wesley C. Wiemers, subject, however, to the payment by him, ... the sum of Five Hundred (500) Dollars, to each of our other children ... within six months from the date of the death of the surviving spouse herein ....

SECOND

In accordance with the aforesaid joint wish and desire of the undersigned, I, the said Geo. H. Wiemers, do hereby give, devise and bequeath to my beloved wife, Ida J. Wiemers, a life estate in and to the 125 acres of land, ... for and during the balance of her life, to have, hold, possess and enjoy until her death; and I do hereby give, devise and bequeath to my son, Wesley C. Wiem-ers, the whole of the remainder interest in and to my part and portion of said 125 acres and improvements thereon, ... subject, however, to the payment by him, the said Wesley C. Wiemers, of the sum of Five Hundred (500) Dollars, within six (6) months from the date of his mother’s death ....

THIRD

And I, the said Ida J. Wiemers, in accordance with the aforesaid joint wish and desire of the undersigned, do hereby give, devise and bequeath to my beloved husband, Geo. H. Wiemers, a life estate in and to the said 125 acres of land, ... for and during the balance of his life, to have, hold, possess and enjoy until his death; and I do hereby give, devise and bequeath to my son, Wesley C. Wiemers, the whole of the remainder interest in and to my part and portion of the aforesaid 125 acres of land and improvements thereon, ... subject, however, to the payment by him, the said Wesley C. Wiemers, of the sum of Five Hundred (500) Dollars to each of my other four children ....

George Wiemers died January 27, 1960, and the joint will was probated. Ida Wiem-ers executed a new will on May 16, 1972, which attempted to revoke the 1951 joint will. The 1972 will provided that three of her children, Edwin Wiemers, Minnie Buss, and Milton Wiemers, would each get an undivided one-fourth interest in her community share of the real and personal property. Ida devised the remaining undivided one-fourth interest of her community share to Wesley’s two daughters, Dorothy Fowler and Evelyn Grell.

In 1980 Wesley, beneficiary of the real property under the 1951 joint will, predeceased his mother, Ida. He was survived by his widow, Norma, and their three children, our petitioners. Ida died September 16, 1981, and her 1972 will was admitted to probate on October 20, 1982.

The court of appeals held the will was not contractual because there was an “absence of a recital that it was executed as the result of a compact or in furtherance of a contract.” 663 S.W.2d at 29. However, the joint will in this case was executed on December 5, 1951. Only wills executed on or after September 1, 1979, must expressly recite that a contract exists. Tex.Prob. Code Ann. § 59A (Vernon 1979).

The Wiemers joint will contains language which we have held evidences a contract on its face. Novak v. Stevens, 596 S.W.2d 848 (Tex.1980); Dougherty v. Humphrey, 424 S.W.2d 617 (Tex.1968); Murphy v. Slaton, 154 Tex. 35, 273 S.W.2d 588 (1954). A comprehensive plan for the disposition of all property owned by both parties is the primary characteristic of a joint and contractual will. Novak v. Stevens, 596 S.W.2d 848 (Tex.1980).

Under the first three paragraphs George and Ida intended the survivor of them to have a life estate in the real property. Also, they agreed Wesley would have the remainder interest in the 125 acre homestead provided he paid $500 to those named in the will.

Edwin contends the will is not contractual because in the second and third paragraphs of the joint will the parties refer to “my part and portion” of the 125 acres. However, the first paragraph of the joint will has the requisite language that this court has held to constitute a contractual will. In the first paragraph, George and Ida jointly set out a comprehensive plan for disposing of all their real property. The second and third paragraphs are reciprocal provisions in which each individually affirms the plan set forth in paragraph one.

Edwin also argues this case is controlled by Magids v. American Title Ins. Co., 473 S.W.2d 460 (Tex.1971). However, in Ma-gids, the wills were identical in form but each dealt only with property “of which I die possessed.” Id. at 466. The wills were separate, even though they were executed at the same time before the same witnesses. “Neither will dealt with the entire community estate of both testators in a manner that affected the survivor’s interest.” No-vak, 596 S.W.2d at 853 (construing Ma-gids).

The Wiemers will, unlike the Magids will, disposes of all the real property and distributes that property according to a common plan. The Wiemers will does contain reciprocal provisions, each disposing of “my part and portion” of the 125 acres; however, the preceding paragraph expresses George and Ida’s joint will and desire to distribute “the whole of our real estate.” As we held in Weidner v. Crowther, 157 Tex. 240, 301 S.W.2d 621 (1957), “[i]t would be manifestly unjust to permit the surviving party to the contract to disavow it and its obligations, as those obligations are incorporated in their will, after the other party has fully performed by abiding by it until his ability to revise it has been terminated by death.” Id. 301 S.W.2d at 624.

We hold that the George H. and Ida J. Wiemers will is joint and contractual. Norma Wiemers is entitled to the constructive trust requested. We reverse the judgments of the lower courts and remand this cause to the trial court to render judgment consistent with this opinion.'


author: PER CURIAM.

text:
    TEXAS INDUSTRIAL TRAFFIC LEAGUE et al., Petitioners, v. RAILROAD COMMISSION OF TEXAS et al., Respondents.
    No. C-3173.
    Supreme Court of Texas.
    Nov. 28, 1984.
    Rehearing Denied Feb. 6, 1985.
    Deborah A. Chadbourne, Dallas, Daniel J. Sweeny, Steven J. Kalish and John M. Cutler, Jr., Washington, D.C., for petitioners.
    Jim Mattox, Atty. Gen., Jose Manuel Rangel, Asst. Atty. Gen., Robinson, Felts, Starnes, Angenend & Mashburn, Phillip Robinson, Austin, Brooks & Brooks, Dallas, for respondent.
   PER CURIAM.

This is an appeal from an administrative order setting certain intrastate freight carrier rates. Common Carrier Motor Freight Association, Inc., applied to the Railroad Commission for an across-the-board rate increase for an entire class of carriers. The Texas Industrial Traffic League, the National Small Shipments Traffic Conference, and the Drug and Toilet Preparation Traffic Conference (“Contestants”) opposed the application before the Commission. After an extensive administrative hearing, the Commission in 1980 granted the increase. Contestants appealed to the District Court of Travis County, which affirmed the Commission order.

Contestants further appealed in 1981 to the court of civil appeals, which reversed and remanded the cause. 628 S.W.2d 187. That court held that Contestants’ failure to demonstrate facts in the record establishing a “justiciable controversy,” or that they had standing, was fundamental error requiring reversal, although neither issue had been raised before anywhere in the proceedings. By per curiam opinion, this court disapproved the holding, reversed the judgment of the intermediate court and remanded the cause to that court for determination of the merits of the appeal. Texas Industrial Traffic League v. Railroad Commission, 633 S.W.2d 821 (Tex.1982).

On remand, the court of appeals again declined to reach the merits as to two of Contestants’ three points. Rather, the court held that the type of review for rate cases provided under the freight carrier regulatory statute, Tex.Rev.Civ.Stat.Ann. art. 911b, § 20 (1964), was trial de novo. The court held that section 20 clearly mandated trial de novo under the administrative procedure act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a, § 19 (Supp.1982), rather than review under the substantial evidence rule. 672 S.W.2d 548. Because it found Contestants had presented their points and case under the wrong review standard, the court of appeals held no error was preserved. No party to the proceeding has ever contended that the standard of review was anything other than the substantial evidence rule. All parties — Contestants, the Commission, and the Freight Association— have filed applications for writ or error asking this court to set aside the court of appeals’ holding that de novo review is the standard for carrier rate cases.

We expressly disapprove all the holdings of the court of appeals that review under section 20 of article 911b is by trial de novo. We have expressly approved substantial evidence review of non-rate orders under section 20. Railroad Commission v. Continental Bus System, Inc., 616 S.W.2d 179 (Tex.1981); Railroad Commission v. Charlie Phillips Trucking Co., 580 S.W.2d 341 (Tex.1979). We have written that there is no longer necessarily a distinction between review of rate cases and review of other administrative orders. Railroad Commission v. Entex, Inc., 599 S.W.2d 292, 298 (Tex.1980). The same statute — section 20 of article 911b — defines the type of review, whether it is a rate order or other carrier regulation order. Our holdings mean that section 20 does not require de novo review, and therefore under section 19 of the administrative procedure act, review is under the substantial evidence rule. We disapprove all of the court of appeals’ language to the contrary.

We have reviewed Contestants’ unaddressed complaints that the rate order was not supported by substantial evidence and was arbitrary and capricious. The Commission’s order using the operating ratios method to set rates for this class of carriers is supported by substantial evidence both as to the decision to use that accounting method to set rates and as to sufficient accounting data to set the rate increase. We reject those complaints. The court of appeals’ also held that the Commission did not abuse its discretion in setting the effective date of the order, and overruled Contestants’ third point. We agree with that holding. We find no error in the judgment affirmed by the court of appeals. We disapprove the reasoning but agree with the judgment, and refuse the applications for writ of error, no reversible error. Tex.R.Civ.P. 483.


author: ROBERTSON, Justice.

text:
    LEYENDECKER & ASSOCIATES, INC., et al., Petitioners, v. William WECHTER et al., Respondents.
    No. C-2814.
    Supreme Court of Texas.
    Dec. 5, 1984.
    Rehearing Denied Feb. 6, 1985.

      Barry G. Flynn, Houston, for petitioners.
    Haynes and Fullenweider, Robert B. Wallis, Scott Ramsey, Houston, for respondents.
   ON MOTION FOR REHEARING

ROBERTSON, Justice.

We withdraw our judgment and opinion of July 11, 1984, and substitute the following.

William Wechter and his wife, Mildred Wechter, sued Leyendecker and Associates, Inc., the developer of a subdivision who built and sold the Wechters a townhouse in Houston, Texas. They sought damages under the Texas Deceptive Trade Practices-Consumer Protection Act for misrepresentation and for defective workmanship. In addition, they sought damages for libel. The trial court rendered judgment for the Wechters. The court of appeals substantially affirmed that judgment but reformed the measure of damages for misrepresentation. 667 S.W.2d 822. We affirm in part the judgment of the court of appeals, and we reverse and render in part.

On June 6, 1976, the Wechters executed an earnest money contract to purchase a townhouse from the defendant, Leyendecker & Associates, Inc. At the time the contract was executed, the townhouse had not been built. The Wechters agreed to the purchase after touring a similar model home and being told they could buy a corner lot slightly larger than the standard lot in the development. At the signing of the contract, the Wechters received only a block and lot number description; no other description or specific measurements of the lot were given. The Wechters had no knowledge or expectation of the size of the lot except that the lot was to be slightly larger than the standard lot in the development.

The contract for sale was closed on November 22, 1976. At closing the Wechters were given, for the first time, a metes and bounds description of the property plus a survey of the lot purchased. A few days after the Wechters moved in, employees of Leyendecker began constructing a fence around the Wechters’ lot. Mr. Wechter, noticing that the fence did not conform to his deed, contacted Leyendecker and the title company. Investigation by the title company and Leyendecker revealed that the legal description contained in the deed and the survey tendered at closing had inadvertently included 2,411 square feet of the “common area” of the subdivision. In an effort to correct the deed description, the title company and Leyendecker tendered a correction deed to the Wechters. However, the Wechters refused to sign the correction deed.

The Wechters also complained to Leyen-decker of construction defects which allegedly were never satisfactorily corrected. In an effort to have these construction defects repaired, the Wechters complained to the Greater Houston Builders Association. Leyendecker responded with a letter by an employee, Chris Hilliard, which falsely accused the Wechters of suing their neighbors over a small portion of the common area and of having asked Leyendecker to make fraudulent insurance claims. This letter was sent to the Greater Houston Builders Association as well as to the Veterans Administration through whom the Wechters had received financing.

After a jury trial, the trial judge rendered a judgment awarding the Wechters $9,644 for misrepresentation of the size of the lot, plus $4,500 for construction defects. On his claim for libel, Mr. Wechter was awarded $1,500 in damages against Chris Hilliard and Leyendecker, jointly and severally. As exemplary damages, $4,000 was awarded against each defendant individually.

The jury had awarded attorney fees to the Wechters in the amount of $9,700 for the trial, $5,000 in the event of appeal to the court of appeals, and $2,500 in the event of appeal to the Supreme Court. However, in its final judgment, the trial court denied the award of attorney fees in the Supreme Court and allowed attorney fees in the court of appeals only if none of the relief sought by Leyendecker was granted.

The court of appeals affirmed in part and reversed and rendered in part. That court held that the trial court improperly measured the damages for Leyendecker’s misrepresentation of the lot size and awarded the Wechters actual damages equal to the 1976 value of the land inadvertently included in the deed description plus the loss of use of the property from 1976 to 1982, the time of judgment. These damages were then trebled. The award for construction defects was sustained. The court of appeals also sustained the trial court’s award of actual damages for libel to Mr. Wechter and in addition, that court followed the jury’s findings and awarded Mrs. Wechter $1,500 in damages for mental anguish arising from the libelous letter. The court of appeals sustained the award of exemplary damages. In addition, the court of appeals held that the trial judge should have followed the jury’s findings on attorney fees and so rendered judgment for attorney fees based upon the jury findings.

MEASURE OF DAMAGES

In response to special issues regarding misrepresentation, the jury found that Ley-endecker had initially represented to the Wechters that the lot would contain 5,800 square feet. The jury then found that the representation was false, that it was made for the purpose of inducing the Wechters to purchase the lot, that the Wechters relied on that representation, that the representation was made willfully and knowingly, and that the lot in question was represented as having characteristics which it did not have. Further, the jury found that such representation was a producing cause of the Wechters’ damages.

The Deceptive Trade Practices-Consumer Protection Act (DTPA), Tex.Bus. &-Comm.Code Ann. § 17.46(a), declares all false representations in the conduct of any trade or commerce to be unlawful and subject to action by a consumer for damages. Texas courts have recognized two measures of damages for misrepresentation. Texas common law allows an injured party to.recover the actual injury suffered measured by “the difference between the value of that which he has parted with, and the value of that which he has received.” George v. Hesse, 100 Tex. 44, 93 S.W. 107 (1906). This measure of damages is known as the “out of pocket” measure and is calculated as of the time of sale. W. Pros-ser, Handbook of the Law of Torts § 110 (4th ed. 1971). The second remedy available in Texas, known as the “benefit of the bargain” measure, allows the plaintiff to recover the difference between the value as represented and the actual value received. Johnson v. Willis, 596 S.W.2d 256, 262 (Tex.Civ.App. — Waco), writ refd n.r.e. per curiam, 603 S.W.2d 828 (Tex. 1980). The DTPA permits a plaintiff to recover under either the “out of pocket” rule or the “benefit of the bargain” rule, whichever gives the consumer the greater recovery. Id., at 263.

The jury found the value of the 2,411 square foot shortage to have been $4,822 in 1976 and $9,644 in 1982. However, in response to a special issue measuring “benefit of the bargain” damages, the jury found there was no difference in the value of the property as represented and as received. The trial court awarded the Wechters the 1982 value of the shortage. The court of appeals reversed and awarded the 1976 value, stating that the jury’s negative finding on “benefit of the bargain” damages was contrary to common sense. Neither the award of the trial court nor the award of the court of appeals is founded on legal precedent or justification.

The Wechters could have sought recovery on either of the alternative theories described above. The negative jury finding precluded recovery on the “benefit of the bargain” theory, leaving open the “out of pocket” measure. As stated above, this measure requires a comparison of the value received against the value parted with. The jury found the value of the 2,411 square feet to have been $4,822 when purchased, but no issue was submitted inquiring as to the value the Wechters paid for the 2411 square feet as distinct from the purchase price of the entire lot and improvements. Furthermore, the record contains no evidence of this value. The Wechters are therefore not entitled to recovery under either theory.

In addition to the damages awarded for the loss of the 2,411 square feet of land, the court of appeals awarded $500 for the loss of use and enjoyment of the land from 1976 until 1982. Where an injury to realty is permanent, the general measure of damages comprehends and includes loss of use and enjoyment. Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440, 442 (1951). The benefit of the bargain measure of damages is a form of general.recovery and includes damages from loss of use. D. Dobbs, Remedies, § 9.2, at 601 (West 1973). Thus, the jury’s negative finding under the benefit of the bargain award of damages contemplated the Wechters’ damages for loss of use of the 2,411 square feet. Therefore, we reverse the court of appeals’ award for loss of use.

While we hold that there are no damages legally supported by the record for the 2,411 square feet inadvertently included in the Wechters’ deed, actual damages were found by the jury in regard to construction defects. These construction damages are not before this court and thus remain undisturbed. Because of the presence of these actual damages, attorney fees are recoverable under the DTPA. Tex.Bus. & Comm.Code Ann. § 17.50(d).

LIBEL

In response to a formal complaint filed by the Wechters with the Greater Houston Builders Association, Chris Hilliard, an employee of Leyendecker, wrote a letter containing several false statements, including an accusation that Mr. Wechter had requested Leyendecker to submit fraudulent claims to Mr. Wechter’s insurance company. The trial court rendered judgment finding Leyendecker guilty of libel and awarding Mr. Wechter damages. The court of appeals affirmed the award to Mr. Wechter and additionally awarded damages to Mrs. Wechter for mental anguish. Ley-endecker asserts that Mr. Wechter’s own testimony concerning his personal humiliation and the depressed state of his wife constitutes no evidence to support the damages awarded to the Wechters for libel.

Article 5430, Tex.Rev.Civ.Stat. Ann., establishes a cause of action in Texas for libel if there is evidence the writing tended to injure the reputation of the one defamed. Once injury to reputation is established, a person defamed may recover general damages without proof of other injury. Guisti v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874 (1912). Similarly, a person defamed by a writing libelous per se may recover by bringing an action at common law without proof of injury. Rawlins v. McKee, 327 S.W.2d 633, 635 (Tex.Civ. App. — Texarkana 1959, writ ref’d n.r.e.) The letter written by Chris Hilliard stated that the Wechters had filed a lawsuit to force their neighbors to buy the disputed area, and that they were generally hard to work with. Although false, these statements were not libelous per se and require evidence of injury to the Wechters’ reputation to allow recovery under Texas’ libel statute. The only evidence of injury to Mrs. Wechter was the testimony of Mr. Wechter that his wife was “very much upset”, “morose” and “depressed”. We find that this evidence does not demonstrate injury to Mrs. Wechter’s reputation. Therefore, we hold that the court of appeals erred in awarding Mrs. Wechter damages for mental anguish.

The letter also falsely accused Mr. Wechter of committing a criminal act by attempting to conspire with Leyendecker to file fraudulent insurance claims. See United States v. Becker, 569 F.2d 951 (5th Cir.), cert, denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). A false statement which charges a person with the commission of a crime is libelous per se. Christy v. Stauffer Publications, Inc., 437 S.W.2d 814 (Tex.1969). The law presumes a statement which is libelous per se defames a person and injures his reputation. Cotulla v. Kerr, 74 Tex. 89, 11 S.W. 1058, 1060 (1889). Because of this presumption of injury to reputation, Mr. Wechter may properly recover his general damages for mental anguish. The court of appeals properly affirmed the trial court’s award of damages to Mr. Wechter for libel.

Leyendecker also complains that the award of exemplary damages from the libelous letter was improper and argues that there is no evidence of malice. The court of appeals inferred malice from the circumstances, finding that the letter was written with reckless disregard and knowledge of the statement’s falsity. Although an issue on exemplary damages was submitted to the jury, no issue on malice was submitted; and Leyendecker did not object to the omission of the malice issue. Therefore, pursuant to Tex.R.Civ.P. 279, the court of appeals deemed the omitted issue to be in support of the trial court’s judgment, and thus the court of appeals deemed malice to have been found by the trial court. See Allen v. American National Ins. Co., 380 S.W.2d 604 (Tex.1964).

Malice is required as a basis for the recovery of exemplary damages in a libel action. Cotulla v. Kerr, 11 S.W. at 1060. However, for purposes of recovering exemplary damages in a libel per se cause of action,

it is not necessary that malice be shown by proof of ill will, animosity, or hatred, nor is it essential to show a willful or wanton act ... or an act done with the specific intent to injure ...; but malice may be inferred from ... such utter recklessness as to indicate a disregard of the consequences.

Houston Chronicle Pub. Co. v. Bowen, 182 S.W. 61, 65 (Tex.Civ.App. — Galveston 1915, writ ref d). See also Fessinger v. El Paso Times Co., 154 S.W. 1171 (Tex.Civ.App.— El Paso 1913, writ ref d).

The accusation made against Mr. Wechter was of such a kind that its truth or falsity was peculiarly within the knowledge of Leyendecker; in essence, the accusation was blatantly untrue. Furthermore, the fact that Leyendecker unnecessarily mailed an additional copy of the letter to the Veterans Administration also reflects a malicious intent. These circumstances were sufficient evidence to support an inference of malice. Pursuant to Rule 279, the court of appeals properly deemed a finding of malice by the trial court. We uphold, the award of exemplary damages.

Leyendecker’s final point urges that an employee who commits a tort while acting within the scope of his employment is not liable to the party injured. We disagree. A corporation’s employee is personally liable for tortious acts which he directs or participates in during his employment. Mayflower Investment Company v. Stephens, 345 S.W.2d 786, 795 (Tex.Civ.App.— Dallas 1960, writ ref’d n.r.e.); see also Light v. Wilson, 663 S.W.2d 813, 815 (Tex. 1983) (Spears, J., concurring). Chris Hilli-ard, in the course of his employment for Leyendecker, penned the libelous letter to the Greater Houston Builders’ Association. Therefore, the court of appeals was correct in affirming the trial court’s judgment holding Chris Hilliard and Leyendecker jointly and severally liable for the actual damages from the libelous letter.

We reverse and render the award of damages for misrepresentation, the award for loss of use, and the award for Mrs. Wechter’s mental anguish. We affirm the award of $4,500 for construction defects, $1,500 for Mr. Wechter’s mental anguish, and $4,000 against each defendant individually for exemplary damages. We also affirm the court of appeals in its award of attorney fees.

GONZALEZ, J., not sitting.


text:
    Guadalupe C. ALVAREZ, Petitioner, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, Respondent.
    No. C-3108.
    Supreme Court of Texas.
    Dec. 12, 1984.
    Rehearing Denied Feb. 6, 1985.

      Kidd, Whitehurst & Harkness, Mack Kidd and William 0. Whitehurst, Jr., Austin, for petitioner.
    Graves, Dougherty, Hearon & Moody, Dan Moody, Jr., David H. Donaldson, Jr., and Thomas I. Davies, Austin, for respondent.
   ROBERTSON, Justice.

Guadalupe C. Alvarez sued Missouri-Kansas-Texas Railroad Company for damages sustained when he was struck by its train at a crossing. The trial court rendered judgment for Alvarez. The court of appeals reversed the judgment and remanded the cause for a new trial, holding that the wording of Special Issue No. 1 constituted an impermissible comment on the weight of the evidence. 670 S.W.2d 338. We reverse the judgment of the court of appeals and remand the cause to that court for consideration of the remaining points.

On the night of December 26,1975, Alvarez was on his way to the grocery store with two other men, Antonio Ledesma and Antonio Tijerina. Ledesma and Tijerina occupied the front seat of the automobile and Alvarez occupied the right rear passenger seat. Their car stalled on the railroad tracks as an M-K-T train was approaching the crossing.

Robert Donnell, the engineer, and Grover Campbell, the head brakeman, were riding in the engine of the train. They testified that they were between 1,000 and 1,500 feet from the crossing when they saw the car stop on the tracks. When they saw the front seat passenger get out of the car and begin waving his hands, Campbell told Donnell, “It looks like they’re playing chicken.” Shortly thereafter, the driver got out and ran toward the front of the ear. Upon seeing the car’s driver exit, Donnell immediately applied the emergency brakes on the train. At that moment, the train was about 450 feet from the crossing.

Meanwhile Alvarez tried to get out of the car. In the panic of the moment, he was unable to get the rear door open, and so he climbed over the front seat to exit through the front door. The train hit the car just as Alvarez jumped for safety, and his left leg was severed below the knee.

The trial court’s judgment was based upon the jury’s answer to Special Issue No. 1 which was submitted over the objection of M-K-T. Special Issue No. 1 reads:

On the occasion in question do you find from a preponderance of the evidence that the Missouri-Kansas-Texas Railroad Company was negligent in its (a) speed, (b) in not timely applying the brakes, (c) in its lookout or (d) in failing to sound the train whistle or horn. If any of your answers in Column 1 are “Yes,” was any such negligence a proximate cause of the occurrence in question? Answer “Yes” or “No” on the corresponding line of Column 2.
Negligence Proximate Cause
a. Speed _ _
b. Brakes _ _
c. Lookout _ _
d. Whistle/Horn _ _

The jury answered “No” to “a”, “c”, and “d”, but answered “Yes” to “b” and found that such negligence was a proximate cause of the occurrence in question.

The court of appeals reversed, holding that the court’s use of the words “not timely” in its charge constituted an impermissible comment on the weight of the evidence. The court held that whether MK-T had made a timely application of the brakes was “a fact question to be submitted to and decided by the jury.” 670 S.W.2d at 346.

The trial court is not required to submit each fact question separately and distinctly. Lemos v. Montez, 680 S.W.2d 798 (Tex.1984); Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex.1981). Since 1974, this Court has approved the submission of broad negligence issues. Mobil Chemical Co. v. Bell, 517 S.W.2d 245 (Tex.1974). In Special Issue No. 1, the jury was asked the controlling question in the case— whether M-K-T was negligent.

M-K-T contends that the issue was not submitted in a neutral manner. Texas Rule of Civil Procedure 277 provides that “[t]he court in its charge shall not comment directly on the weight of the evidence or advise the jury of the effect of their answers.” Therefore, special issues are to be worded so as to avoid assuming the truth of a material controverted fact. Johnson v. Zurich General Accident & Liability Ins. Co., 146 Tex. 232, 205 S.W.2d 353 (1947).

However, even if the wording of a special issue constitutes an implied comment, not every such comment is cause for reversal. Mason v. Yellow Cab & Baggage Co., 153 Tex. 344, 269 S.W.2d 329, 330 (1954); Texas Employers Ins. Ass’n v. McKay, 146 Tex. 569, 210 S.W.2d 147 (1948); see also 3 R. McDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 12.03.2, at 233 (rev. 1983). It must be one that would probably cause the rendition of an improper judgment. Tex.R.Civ.P. 503; see also Rapid Transit Lines, Inc. v. Doyle, 450 S.W.2d 767, 768 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ). In considering whether the court's use of the words “not timely” constituted a harmful comment on the weight of the evidence, we must look to the circumstances of the particular case and to the charge as a whole. Mason, 269 S.W.2d at 330; McKay, 210 S.W.2d at 149.

In this case, it was undisputed that there was a time gap between the moment the car was first observed on the tracks and the moment the train’s brakes were finally applied. The engineer admitted that he purposely delayed applying the emergency brakes for five to six seconds in order to determine for himself whether the car was playing chicken with the train.

Considering the entire record in the case, it was obvious to the jury that the primary question was whether this undisputed time delay constituted negligence. The essence of M-K-T’s argument is that the wording of Special Issue No. 1 caused the jurors to convert that question into an instruction from the court that M-K-T had not exercised due care.

Viewing the charge as a whole, the word “timely” was merely mentioned in the body of the issue. The jury’s answer was listed on a line beside the heading of “Brakes” and under the column of “Negligence.” Thus, the jury’s attention was focused on consideration of the brakes, and it was asked the controlling question of negligence. Part “d” of Special Issue No. 1 asked whether M-K-T was negligent “in failing to sound the train whistle or horn.” Arguably, this wording might also be viewed as a comment on the weight of the evidence; yet the jury apparently understood there that the controlling question was negligence and answered “No” to part “d”. It is also unlikely that the jury was misled by the wording of part “b”.

Undoubtedly, Special Issue No. 1 could have been better worded. However, “in an already complicated field like that of special issues, we cannot strain too hard for perfection without ultimate damage to the whole jury system in civil cases.” Mason, 269 S.W.2d at 331. Based upon the circumstances of this entire case and upon the charge as a whole, we hold that Special Issue No. 1 was at most a harmless comment and that it was not a proper ground for reversal of the trial court.

We reverse the judgment of the court of appeals and remand the cause to that court for consideration of the remaining points.


text:
    Delvin Stanley PHILBROOK, et ux., Relators, v. The Honorable Weldon BERRY, Judge, Respondent.
    No. C-3463.
    Supreme Court of Texas.
    Jan. 9, 1985.
    See also 679 S.W.2d 651.
    George P. Hardy, III and Donna Cywin-ski, Ferebee & Ferebee, William C. Fere-bee, Houston, for relators.
    Baker & Botts, Richard Josephson, Houston, for respondent.
   PER CURIAM.

Relator, Delvin Stanley Philbrook, seeks a writ of mandamus to compel Judge Weldon Berry to vacate his order granting a new trial. Relator contends that Judge Berry lacked jurisdiction to grant a new trial because the motion upon which he purported to act was filed in another cause. On motion for rehearing, we withdraw our previous order overruling Relator’s motion for leave to file petition for writ of mandamus and conditionally grant the writ.

In the underlying action, Philbrook sued Owens-Illinois, Inc. and others seeking damages allegedly caused by his exposure to asbestos. After the time had passed for Owens-Illinois to answer, Philbrook moved to sever his claims against Owens-Illinois and obtained a default judgment in the severed cause. Nine days after Judge Berry signed the default judgment in the severed cause, Owens-Illinois filed its answer in the original cause. Thereafter, Owens-Illinois became aware of the default judgment and filed a motion for new trial. This motion, however, was filed in the original cause rather than the severed cause. Judge Berry nevertheless considered the motion as if filed in the severed cause and signed an order setting aside the default judgment. Judge Berry’s order granting Owens-Illinois’ motion for new trial was signed fifty-three days after the default judgment.

Philbrook sought relief in the court of appeals arguing that the default judgment signed in the severed cause became final thirty days after it was signed and that the motion for new trial filed in the original cause did not extend Judge Berry’s plenary jurisdiction over the default judgment. The court of appeals declined to issue the writ. 679 S.W.2d 651 (Tex.App. — Houston [1st Dist.] 1984, no writ).

We agree with Philbrook that the default judgment was already final when Judge Berry acted to set it aside. Absent a timely motion for new trial, a trial court retains plenary power over its judgment for a period of thirty days.' TEX.R.CIV.P. 329b(d). A trial court’s plenary power may be extended for as long as one hundred five days by a timely filed motion for new trial. TEX.R.CIV.P. 329b(a)(c) and (e). In addition to being filed timely, the motion for new trial must be filed in the same cause as the judgment the motion assails. Buttery v. Betts, 422 S.W.2d 149 (Tex. 1967).

Because the motion for new trial was filed in the wrong cause, it did not operate to extend the court’s plenary power over its judgment beyond the thirty days prescribed by TEX.R.CIV.P. 329b(d). Judge Berry retained plenary power to vacate, set aside, modify or amend the default judgment for a period of thirty days after he signed it. First Alief Bank v. White, 682 S.W.2d 251 (Tex.1984); Thursby v. Stovall, 647 S.W.2d 953 (Tex.1983); McCormack v. Guillot, 597 S.W.2d 345 (Tex.1980). Thereafter, he lacked the power to set his judgment aside except by bill of review. TEX.R.CIV.P. 329b(f).

Because Judge Berry’s order, granting a new trial after the default judgment became final, is contrary to the above authority, we grant the writ of mandamus without hearing oral argument. TEX.R.CIV.P. 488. The writ will issue only if Judge Berry’s successor, the Honorable William R. Powell, fails to vacate the order.


author: ONION, Presiding Judge. CLINTON, Judge, MILLER, Judge, TEAGUE, Judge,

text:
    Donald Joseph ELLIS, Appellant, v. The STATE of Texas, Appellee.
    No. 0143-83.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.

      Catherine E. Greene and Janet Seymour Morrow (court appointed on appeal only), Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Ray Elvin Speece, Tom Henderson and Chuck Rosenthal, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., and Cathleen Riedel, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal involves convictions from two counts of aggravated robbery in the same indictment. Punishment, enhanced by allegation and proof of two prior felony convictions, was assessed at life imprisonment on each count following the jury verdicts.

On appeal the appellant, inter alia, urged the trial court erred in not allowing him to call his co-defendant, Ballard, before the jury to assert his (Ballard’s) claim of Fifth Amendment protection against self-incrimination. Appellant argues the assertion of the privilege against self-incrimination by Ballard was not a legitimate claim of the privilege but was a part of a prior plea bargain agreement, and appellant’s counsel was surprised by Ballard’s refusal to testify-

The Houston Court of Appeals (1st Dist.) affirmed the convictions, holding, inter alia, the trial court did not err in refusing to allow appellant to call the co-defendant before the jury to assert to his previous claim of Fifth Amendment privilege against self-incrimination. Ellis v. State, 646 S.W.2d 554 (Tex.App. — Houston [1st Dist.] 1982). We granted appellant’s petition for discretionary review to determine the correctness of that portion of the decision below.

The record revealed that the alleged robberies occurred at Jones’ Apothecary Stores at different locations in Harris County. The first occurred on March 26, 1981, and the second on April 22, 1981. Cash and drugs were taken in each robbery. Appellant and Charles Ballard were identified by witnesses as the two men involved in both robberies.

Appellant testified and denied involvement in either robbery. He testified that during April, 1981, he was seriously ill with infectious hepatitis at his ex-wife’s house. He stated he had loaned Ballard his car for several weeks while he was ill. His former wife corroborated appellant’s testimony as to his illness and loaning the car to Ballard. Other defense witnesses testified they were in business meetings with appellant about the time of the March robbery.

Turning to appellant’s contention, we observe that appellant filed a pre-trial motion “to require the prosecution to reveal any agreement with a witness that could influence his testimony.” The motion was expressly directed to Ballard, and asked the prosecutor to reveal any concessions or promises made to Ballard which could occur “in the event ... Ballard ... cooperated with the prosecution by testifying against the Defendant herein.”

When prior to trial the said motion was called for consideration, a somewhat disjointed colloquy at the bench occurred. It does appear the prosecutor stated Ballard had plead guilty to two counts of an indictment, and two counts had been dismissed; that part of the agreement was that Ballard was not to testify for either party at appellant’s trial. He stated he had not talked to Ballard, but to his lawyer and it was understood Ballard could be “recharged” with the dismissed counts. Appellant’s counsel stated this was what he wanted to bring out in the presence of the jury. After some further discussion about the dismissed counts and count three of appellant’s indictment which had been abandoned by the State, the court stated to appellant’s counsel, “I don’t know what you expect to prove.” The record then reflects:

“MR. PANDAK (Defense Counsel): Not to fully disclose our hand, but what we intend to do is put the co-defendant on voir dire and put some evidence on for this court to show that this witness is completely adverse, and that I’ll be able to treat him as if the State had called him to the stand.
“MR. ROSENTHAL (Prosecutor): There’s no such rule in the State of Texas.
“MR. PANDAK: Yes, I know that, but that’s the intent that we have.
“MR. HENDERSON (Prosecutor): We don’t have an adverse witness rule. If he calls him, he’s liable for everything he says.”

The court then suggested that it would carry the motion, and later allow appellant to tender the witness Ballard out of the jury’s presence in order to fully develop the record when Ballard’s attorney could be present. Appellant agreed.

After the State rested its case at the guilt stage of the trial without calling Ballard as a witness, and prior to the appellant offering any evidence, the court indicated Ballard would be called outside the jury’s presence. It also noted Ballard apparently wanted to discharge his court-appointed counsel.

Prior to being sworn, Ballard stated he would refuse to answer “anything on this case” on the ground it might tend to incriminate him. After being sworn, Ballard refused to answer any questions until he talked to an attorney. He didn’t want to be incriminated in any way. At this point, F.M. Stover, his court-appointed counsel, stated for the record he represented Ballard on his guilty plea, that when he attempted to impart some legal information the day before Ballard had refused to talk to him. Counsel then, in open court, advised Ballard he did not, under the federal and state constitutions, have to give testimony that might tend to incriminate him. Attorney Stover stated he had previously recommended Ballard not testify, and he was now urging Ballard not to testify in appellant’s case.

In response to the court’s inquiry, Ballard took “the 5th” and refused to answer any questions. Ballard refused to answer appellant’s question that he had told a Mr. Ellis he would testify. Appellant then claimed surprise, asked the court to rule thereon so he could have Ellis impeach “this testimony.” The prosecutor then informed the court that Ballard had asked to withdraw his guilty pleas entered in another court. After appellant indicated he had no further questions of Ballard, the court inquired:

“You want to put this testimony on in front of the jury, or do you not?
“MR. PANDAK: Your Honor, I don’t want it unless — until after my ruling on the surprise is made. I don’t think it would be appropriate at this time.”

Ballard was removed from the courtroom and the court offered to hear “proof as to surprise.” Attorney Stover was called by the appellant. He testified that before or at the time of Ballard’s guilty pleas he told appellant’s counsel he had no objection to counsel talking to Ballard; that he saw counsel conversing with Ballard, but didn’t know what was said. Stover vaguely recalled a conversation with appellant’s counsel and other individuals in another court in which he was asked to be present at the instant trial; that he had stated he assumed Ballard would not testify, and appellant's counsel indicated Ballard would testify. Appellant’s counsel asked but later withdrew the question whether the day before Stover had told him (appellant’s counsel) Ballard would testify “but maybe not to my liking.” Thereafter attorney Stover was excused, and appellant’s counsel stated:

“Your Honor, we will put on no more evidence at this time, but as to claiming surprise and the right for any witness claiming the 5th, we’re saying that applies, if it comes unexpectedly, and we are asking at this time for a ruling on surprise based upon the evidence we have heard so far, solely on that evidence and not anything that was maybe discussed off the record.”

After discussing the claim of surprise, the court stated:

You haven’t expressed any testimony that would lead me to feel that you would be surprised. Therefore, I’ll overrule whatever surprise you may have in mind. The witness didn’t testify ... refused to testify under the advise of Counsel.
“MR. PANDAK: Thank you, Your Honor.”

As can be seen, appellant never secured a ruling on placing Ballard on the stand in the presence of the jury. He secured an adverse ruling on the ground of surprise which is part of the predicate for impeaching one's own witness before the trier of facts, but not a necessary part of the predicate for the contention now urged on appeal. Appellant did not clearly articulate to the trial court his present contention that under the circumstances he had the right to call a co-defendant as a witness to testify before the jury that he (co-defendant) had claimed his privilege against self-incrimination and to explain his reason for so claiming it. Appellant has preserved nothing for review.

If it can be argued that appellant did preserve his contention for review, this court has repeatedly held that a defendant has no right to have a witness assert or invoke his Fifth Amendment privilege against self-incrimination in the presence of the jury. Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974); Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977).

In Mendoza, supra, at p. 450, this court wrote:

“In Rodriguez v. State, 513 S.W.2d 594 (Tex.Cr.App.1974), we reiterated the general rule that when a witness, other than the accused, declines to testify on the ground that his answers would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or to the accused. The rationale is that in refusing to answer a question the witness is exercising a personal constitutional right which should neither help nor harm any third person. Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972). In Rodriguez, we held it was not error for the trial court to refuse appellant’s motion to have witnesses invoke the Fifth Amendment in the presence of the jury.

“The record in the instant case shows that defense counsel was well aware before trial of Ybarra’s intent not to testify. Therefore, appellant’s argument that the court should not have granted the State’s motion in limine is tantamount to an assertion that Ybarra should have been allowed to invoke the Fifth Amendment before the jury. Such conduct would have been improper, and the trial court did not err in sustaining the State’s motion which sought to prevent this occurrence. Victoria v. State, 522 S.W.2d 919 (Tex.Cr.App.1975); Rodriguez v. State, supra; Glasper v. State, supra.

“Appellant’s reliance on Washington v. Texas [388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) ], supra, is misplaced. That case held unconstitutional prior Article 82 of Vernon’s Ann.Tex.P.C., 1925, which denied an accused the right to call as defense witnesses persons charged as principals. The decision in Washington rested on the ground of an arbitrary statutory exclusion of potential witnesses. The rule of such cases as Rodriguez v. State, supra; Glasper v. State, supra; and Victoria v. State, supra, rests on a different footing: that of insuring that a third party witness’ invocation of the Fifth Amendment has a neutral effect on the accused and the State. While the expansive dicta in Washington concerning a defendant’s right to compulsory process may have been appropriate in the context of the facts of that case, it is not controlling here.”

It has also been made clear that an individual’s constitutional right against self-incrimination is superior to the constitutional right to compulsory process. Whitmore v. State, 570 S.W.2d 889 (Tex.Cr.App.1976); Rodriguez v. State, supra; Glasper v. State, 486 S.W.2d 350 (Tex.Cr.App.1972). See also United States v. Roberts, 503 F.2d 598 (9th Cir.1974), cert. den. 419 U.S. 1113, 95 S.Ct. 791, 42 L.Ed.2d 811 (1975).

The judgment of the Court of Appeals is affirmed.

CLINTON, Judge,

concurring.

Since it is never error for a trial court to refuse to permit either party to call a witness for the purpose of letting the jury hear an invocation of Fifth Amendment privilege against selfincrimination, I join the latter portion of the opinion of the Court to that effect, Maj. Opinion pp. 382-383. Insofar as the plea bargain and threatened retaliation are concerned, appellant was free to spread the facts about those matters on the record separate and apart from the Fifth Amendment ritual, and thereby explain why Ballard did not testify for appellant. On that basis I concur in that part of the opinion, and, in the judgment of the court.

I would be inclined toward the view of Judge Teague — that the agreement itself constituted a denial of due process to appellant by depriving him of the testimony of a material witness — if I could only read that to be the complaint treated by the court of appeals and raised for our review. But a fair reading of appellant’s petition for discretionary review and brief clearly reveals the contention to be that the jury was deprived of information regarding the agreement, and perforce the co-defendant’s unavailability. The record simply fails to support this.

MILLER, Judge,

concurring.

I agree that appellant has preserved nothing for review. Appellant’s contention, as pointed out in the majority opinion, was that he should have been allowed to bring out in front of the jury evidence showing that the co-defendant would claim his Fifth Amendment privilege because, at least in part, he agreed to do so as part of a plea bargain agreement with the State; and that the co-defendant’s lawyer had been informed that the State could recharge the co-defendant with dismissed counts if he did not live up to the agreement. The record reflects that the trial court carried appellant’s request so that appellant could have an out of presence hearing. Appellant never reurged his request and never sought to call the co-defendant to the stand.

The majority opinion goes further and holds that had appellant’s contention been preserved it would have been found to be without merit. The majority’s discussion supporting this holding fails, however, to address the crux of appellant’s ground of error — that the co-defendant was claiming his Fifth Amendment privilege not of his own volition but because: 1) he had been made to do so as part of a plea bargain with the prosecution, and 2) he had been threatened with retaliation from the prosecution if he didn’t live up to the plea bargain. Thus, claims appellant, his co-defendant’s invocation of the Fifth Amendment should not have “a neutral effect on the accused and the state.”

Since this additional majority holding does not properly address appellant’s claim and also is unnecessary to resolution of the case, I cannot agree with it. To that portion of the majority opinion which states that appellant preserved nothing for review, I concur.

TEAGUE, Judge,

dissenting.

Because counsel for the appellant inart-fully worded her ground of error, concerning the issue that was actually before the First Court of Appeals, this caused the train to get off the track back when the ease reached the train station that houses the First Court of Appeals. And it is still off the track.

Counsel asserted that “It was error for the trial judge not to allow appellant to call his co-defendant before the jury to assert his claim of fifth amendment protection against self-incrimination.” Of course, standing alone, this ground of error would be totally and wholly without merit. And counsel for appellant has recognized this in the briefs that she has filed in this cause.

However, counsel for appellant eventually gets to what I call the “nitty-gritty” issue that is in this cause, namely, whether the condition that the prosecutor placed on a plea bargain agreement he had made with appellant’s co-defendant, which plea bargain agreement consisted of the prosecutor agreeing to move to dismiss two of four charges of robbery and also agreeing to recommend to the trial judge that the co-defendant be assessed a 20 year sentence on each of the two charges to which he would plead guilty, effectively deprived the appellant of due process and due course of law as provided for in both the Federal and State Constitutions.

The condition that was placed on the plea bargain agreement was that the co-defendant would not testify when appellant’s case came to trial. The prosecutor admonished the co-defendant that if he reneged on the agreement, then he, the prosecutor, would refile the two dismissed charges. The record reflects that the plea bargain agreement was in all things executed and carried out. When appellant called the co-defendant to testify he, the co-defendant, understandably, refused to testify.

I find that the conditional plea bargain agreement effectively deprived the appellant of due process of law under the Fourteenth Amendment to the Federal Constitution, as well as due course of law under the State Constitution.

Simply because of the legal muscle that a prosecuting attorney has in the State of Texas, the above conditional plea bargain agreement makes the facts in this case more egregious than those found in Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972). There, the facts reflected that the defendant called a witness to testify. Outside of the presence of the jury, the trial judge admonished the witness that he was not required to testify, that if he lied under oath when he testified, the court would personally see that his case went to the grand jury, that he could be convicted of perjury, that in that event he would probably have to serve more time than he was presently serving, and such would be held against him when he was considered for parole. The witness then declined to testify and was excused. The Supreme Court found that the trial judge committed federal constitutional reversible error.

Finding that the facts of this case cannot be distinguished from Webb v. Texas, supra, I am compelled to respectfully dissent.

      . The record does not make clear who "Mr. 683 S.W.2d — 9 Ellis” is.

      . A party may not impeach his own witness unless two prerequisites are met: the witness must first testify to facts injurious to that party’s case, and the party must demonstrate that he was surprised by such testimony. Dove v. State, 623 S.W.2d 346, 348 (Tex.Cr.App.1981). See also Article 38.28, V.A.C.C.P.; Lewis v. State, 593 S.W.2d 704 (Tex.Cr.App.1980); Ortega v. State, 659 S.W.2d 35 (Tex.Cr.App.1983); Goodman v. State, 665 S.W.2d 788 (Tex.Cr.App.1984). In order to demonstrate surprise, the party must show (outside the presence of the jury) prior conversation with or statements by the witness. Lewis v. State, supra; Hunnicutt v. State, 523 S.W.2d 244 (Tex.Cr.App.1975). It is not sufficient for the party to merely claim that he is surprised. Williams v. State, 521 S.W.2d 250 (Tex.Cr.App.1975); Banks v. State, 510 S.W.2d 592 (Tex.Cr.App.1974). Further, it is not sufficient that the witness merely fails to testify as expected or to remember facts favorably to the party calling the witness. He must have stated facts injurious to the party calling him (the witness). Wall v. State, 417 S.W.2d 59 (Tex.Cr. App.1967); Dove v. State, supra.

      . Majority opinion quoting Mendoza v. State, 552 S.W.2d 444 (Tex.Cr.App.1977).

      . The evidence concerning the conditional plea bargain agreement was developed in the trial court through statements by the prosecutor and trial counsel for appellant.


author: ONION, Presiding Judge. MeCORMICK, Judge,

text:
    Samuel James RELEFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 152-83.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.
    James Gregory Glass, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr. and John Holleman, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This appeal is from a conviction for aggravated robbery. Punishment, enhanced by allegation and proof of a prior felony, was assessed at a life sentence and a $5,000.00 fine.

On appeal, the Houston Court of Appeals [1st Supreme Judicial District] in an unpublished opinion reversed and remanded appellant’s conviction holding, inter alia, that the jury charge contained fundamental error. We granted the State’s Petition for Discretionary Review to determine the correctness of that portion of the decision below.

The indictment charges appellant with the offense of aggravated robbery “while in the course of committing theft.” In applying the law to the facts, the court did not track the indictment and use the term “in the course of committing theft” but attempted to set out the component parts of the offense of theft by alleging the elements thereof. However, the charge failed to require the jury to find that appellant took or attempted to take the property without the effective consent of the owner. The Court of Appeals, therefore, held the charge fundamentally defective for failure to set out all the essential elements of theft, to-wit: “without the effective consent of the owner.” In support of their holding, the Court of Appeals relied on two earlier opinions by this Court with identical situations. Evans v. State, 606 S.W.2d 880 (Tex.Cr.App.1980); Hill v. State, 640 S.W.2d 879 (Tex.Cr.App.1982). See also, Williams v. State, 622 S.W.2d 95 (Tex.Cr. App.1981).

In Woods v. State, 653 S.W.2d 1 (Tex.Cr.App.1982) (Opinion on State’s Motion for Rehearing), this Court overruled Evans, Williams and Hill, holding that “... where it is alleged, proven and found that a defendant intentionally or knowingly placed the owner in fear of imminent bodily injury or death in the course of the taking, a charge is not defective for failing to require that the jury separately find the taking to have been without the effective consent of the owner.” Woods v. State, 653 S.W.2d at 5. The rationale for such a holding is found in Judge Clinton’s dissenting opinion in Hill, which we adopted in Woods, wherein he writes:

“Evans and its progeny should be overruled, even if ‘without the owner’s effective consent' is somehow a ‘sub-element’ of robbery, because we failed to perceive that requiring a jury to find that appellant ‘then and there intentionally and knowingly threatened or placed [complainant] in fear of imminent bodily injury or death’ rendered a factual finding to her lack of effective consent immaterial.”

We, therefore, sustain the State's contention.

That ruling, though, does not totally dispose of this case. There remains a problem of a jury verdict unauthorized by law.

The court’s charge at the penalty stage of the trial authorized the jury, if it found appellant had been previously convicted as alleged, to assess punishment “for a term of years not less than fifteen years or more than ninety-nine years or by confinement for life, and in addition thereto, you may assess a fine not to exceed $10,000.00.” (Emphasis supplied.)

The verdict accepted by the court assessed life imprisonment in the Department of Corrections and a fine of $5,000.00.

V.T.C.A., Penal Code, § 12.42(c) (Penalties for Repeat and Habitual Felony Offenders), provides:

“(c) If it be shown on trial of a first degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.”

The court’s instructions authorizing the imposition of a fine was incorrect as there are no provisions for a fine under § 12.-42(c). The confusion stems from the 1979 amendment to V.T.C.A., Penal Code, § 12.-32 (First-Degree Felony Punishment), which authorizes the imposition of a fine not to exceed $10,000.00. Nevertheless, § 12.42(c) controls over § 12.32, and the punishment assessed exceeds the legal maximum. See Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983).

The State suggests that this Court should reform the sentence instead of reversing and remanding. However, as we opined in Bogany v. State, supra, we are without authority on appeal to reform such a judgment and sentence. The error was in accepting a verdict which was not authorized by law, and not a situation where the judgment was contrary to the verdict. In the latter, this Court has authority to reform and correct a judgment to reflect the true finding of the fact finder, but not in the former. See, Article 44.24(b), Y.A.C. C.P.; Milczanowski v. State, 645 S.W.2d 445 (Tex.Cr.App.1983).

Because there was no authority for the jury to assess a fine, in addition to the time assessed, the verdict is void at the inception. Villarreal v. State, 590 S.W.2d 938 (Tex.Cr.App.1979); Ex parte Mclver, 586 S.W.2d 851 (Tex.Cr.App.1979); Diaz v. State, 663 S.W.2d 114, 115 (Tex.App — Houston [1st Dist.] — 1984).

We conclude the Court of Appeals was in error in reversing this cause as to ground of error one. However, because the judgment was void at its inception due to the excessive punishment assessed, we are constrained to reverse the judgment of the trial court and remand the cause to that court, thus in effect affirming the judgment of the Court of Appeals.

MeCORMICK, Judge,

concurring and dissenting.

Although I agree with the majority as to the disposition of the first ground of error, I must dissent to the reversal for the reasons set forth in my dissenting opinion in Bogany v. State, 661 S.W.2d 957 (Tex.Cr.App.1983).

W.C. DAVIS and CAMPBELL, JJ., join in this opinion.