author: FRANKS, Judge.

text:
    Royce SMITH, Plaintiff-Appellee, v. TRI-COUNTY ELECTRIC MEMBERSHIP CORPORATION, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Feb. 13, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 22, 1985.

      R.K. Witcher, Jr., Lafayette, for defendant-appellant.
    Thomas H. Bilbrey, Lafayette, for plaintiff-appellee.
    Carlos C. Smith, Frederick L. Hitchcock, R. Christine Mabe of Strang, Fletcher, Car-riger, Walker, Hodge & Smith, Chattanooga, for amicus curiae.
   OPINION

FRANKS, Judge.

Plaintiffs suit, predicated upon the discontinuance of his electric utility service by defendant and tried before a jury, resulted in a judgment of compensatory damages in the amount of $532.92, and punitive damages in the amount of $25,000.00 against the defendant.

On June 30,1983, Debbie Hix, who owed defendant utility a delinquent account in the amount of $692.68, went to defendant’s office and requested electrical service in the name of Roy Smith at a residence subject to service by defendant. A representative of defendant advised that Roy Smith, or a close relative, would have to sign an application for the service. On the same day, Roy Smith, the plaintiff, went to defendant’s office and defendant’s representative explained defendant’s policy of not furnishing electrical service when anyone indebted to defendant planned to live in the residence. The representative also informed plaintiff that Debbie Hix, who had initially requested the service, owed a delinquent account. Plaintiff advised defendant’s representative that Debbie Hix would not be living at the residence and signed an application for service which recites, in pertinent part: “This application is subject to the Corporation’s Rules and Regulations and By-Laws, copies of which are open for inspection at the office of the Corporation; and that these Rules and Regulations, and By-Laws are a part of this agreement.”

The representative further informed plaintiff defendant would set the meter but if it was determined that Debbie Hix was in fact residing in the residence, the electric service would be discontinued. After the meter was set, on July 6, 1983, an employee of the defendant determined Debbie Hix was living at the residence and, on July 7, 1983, the electric service was terminated. On that occasion, Debbie Hix was present at the residence and was informed the meter was being removed. This suit was filed five days later.

The trial judge submitted to the jury the issue of whether the rule relied upon by defendant to terminate plaintiff’s electrical service was reasonable; however, this determination should have been made by the trial judge as a matter of law. Where the facts are not in controversy, whether a rule or regulation of the public utility is reasonable is a question of law for determination by the court. Smith v. Pickwick Electric Coop., 212 Tenn. 62, 367 S.W.2d 775 (1963); Jones v. Nashville, 109 Tenn. 550, 72 S.W. 985 (1902).

Defendant is obligated to furnish its service to its members without arbitrary discrimination. T.C.A., § 65-24-109. The Supreme Court has held members of electric cooperatives are entitled to service from the cooperative upon compliance with “reasonable rules and regulations” of the cooperative. Pickwick Electric Coop., supra; Chumbley v. Duck River Elec. Corp., 203 Tenn. 243, 310 S.W.2d 453 (1958).

The Supreme Court in Farmer v. Nashville, 127 Tenn. 509, 156 S.W. 189 (1912), declared an ordinance void which denied water service to a tenant of a landlord who had a delinquent water bill at the location. In discussing the restrictions upon a municipality or utility in making rules of this nature, the court said:

The distinction between the general power of a legislative body to make laws and the special power of a municipal corporation to enact by-laws is recognized by our authorities. In respect of the latter, the corporate council is restrained to such matters as are not at variance with the general laws of the State, are reasonable, and adapted, to, or proper for, the purposes of the corporation. In Long v. Taxing District, 7 Lea [134] 137, 40 Am.Rep., 55, the court said:
“Whenever a by-law seeks to alter a well-settled principle of the common law, or to establish a rule interfering with the rights of an individual or the public, the power to do so must come from plain and direct legislative enactment. No implied power to pass bylaws, and no express general grant of the power, can authorize a by-law which conflicts either with the national or State constitution, or with the statutes of the State, or with the general principles of the common law adopted or in force in the State. Ordinances must be consistent with public legislative policy, may regulate, not restrain, trade, and must not contravene common right....”

And in speaking of a by-law of this defendant with respect to the relation of its water service to its inhabitants, this court has said:

“It may be said generally that ordinances must be consonant with the constitution and statutes of the United States and of the State, and with the general principles of the common law. They must be authorized by the charter of the corporation or general laws applying thereto, and consistent with the objects and purposes of its creation. They must be general, and applicable alike to all persons and property affected by them, and certain in their application and operation, and their execution not left to the caprice of those whose duty it is to enforce them. They must be just. And they should be adapted to the locality and affairs which it is intended they shall control and affect. They must not be harsh and oppressive. They must not discriminate in favor of or against any class of persons or property, but must be general in their nature, and impartial in their operation and effect.” Jones v. Nashville, 109 Tenn. 558, 72 S.W. 985. 127 Tenn., at 515-7, 156 S.W. 189.

It is argued the rule under consideration is reasonably necessary to combat the so-called practice of rotation, ie., a customer contracts for electrical services, defaults on payment, and then enjoys the benefit of new electric service contracted by a friend or relative. The rule, as applied, encompasses a broader class of individuals than those who practice the rotation scheme. The rule denies an individual the right to contract for electrical service at any location in the area served by the defendant under all circumstances and relationships so long as another individual, who owes the defendant for electrical services, resides on the premises where electrical services are sought. The classification, we believe, is unreasonable and arbitrary. In Davis v. Weir, 497 F.2d 139 (5th Cir.1974), the court invalidated an ordinance of the City of Atlanta similar in substance to the ordinance voided by our Supreme Court in the Farmer case. The court observed:

A collection scheme, however, that divorces itself entirely from the reality of legal accountability for the debt involved, is devoid of logical relation to the collection of unpaid water bills from the defaulting debtor. The City has no valid governmental interest in securing revenue from innocent applicants who are forced to honor the obligations of another or face constructive eviction from their homes for lack of an essential to existence — water. “The fact that a third-party may be financially responsible for water service provided under a prior contract is an irrational, unreasonable and quite irrelevant basis upon which to distinguish between otherwise eligible applicants for water service.” Davis v. Weir, supra, 359 F.Supp., at 1027. The Department’s actions offend not only equal protection of the laws, but also due process. [Citations omitted.] 497 F.2d, at 144-5.

As in the case of water, electric utility service is a “necessity of modern life” and the defendant is obligated to provide service to all of its members “alike, without discrimination, and without denial, except for good and sufficient cause.” Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1 at 11, 98 S.Ct. 1554 at 1561, 56 L.Ed.2d 30 (1978). The cases cited by defendant and amicus in the briefs are inapposite and not controlling. The instant case is distinguishable in that plaintiff contracted for the electrical service, was using the service, was not delinquent, owed the defendant no bills for prior service at any location, and had no connection with the delinquent customer when her bills were incurred.

Plaintiff has not appealed as to the amount of compensatory damages awarded and we pretermit defendant’s issue relating to the trial court’s charge to the jury concerning whether or not the rule relied upon by defendant was reasonable. We conclude the submission of the issue to the jury was harmless error, T.R.A.P., Rule 36, as there is ample material evidence to support the award of compensatory damages. In this connection, see Annot., 108 A.L.R. 1174, Measure and amount of damages for breach of duty to furnish water, gas, light, or power service.

Defendant insists plaintiff’s application for membership, coupled with defendant’s acceptance, constituted a contract wherein defendant would furnish electric utility service to plaintiff and, assuming arguendo, a breach of the contractual duty, punitive damages cannot be allowed in breach of contract actions. We cannot agree. The action was one sounding in tort and not purely a breach of the terms of the contract. When the rule, which we conclude is unreasonable, is elided from the contract between the parties, the termination of plaintiff’s service was not in accordance with the contract but independent of and against the contract and, under T.C.A., § 65-24-109 and Trigg v. Middle Tennessee Electric Membership Corp., 533 S.W.2d 730 (Tenn.App.1975), the utility has a duty to furnish electric services to its members and a breach of that duty is tor-tious conduct. See Capital Electric Power Association v. Hinson, 92 So.2d 867 (Miss.1957).

Punitive damages may be awarded in cases of fraud, gross negligence, or where a wrongful act is done with a bad motive, or where there is willful misconduct or entire want of care so as to raise a presumption of a conscience indifferent to the consequences. Inland Container Corporation v. March, 529 S.W.2d 43 (Tenn.1975). The evidence does not establish a basis for punitive damages. Plaintiff obtained his electrical service by artifice and malice or bad motive cannot be inferred from defendant’s termination of the service. At the time the service was connected, plaintiff was advised the service would be disconnected if Debbie Hix was found to be residing with plaintiff and, upon terminating plaintiff’s service in reliance on its long-standing rule, these facts cannot reasonably be considered malicious nor willful misconduct by defendant since the service would not have been furnished initially had plaintiff disclosed the facts that formed the basis for its termination.

Where punitive damages are sought, the pleadings must properly disclose circumstances which justify an allowance of such damages. 22 Am.Jur.2d, Damages, § 331, at 433. During the trial, plaintiff called as a witness, Charles May-hew, who served as general manager of the defendant utility but was retired at the time of trial, and was permitted, over the objection of the defendant, to cross-examine Mayhew about a suit filed in Chancery Court at Gallatin styled Jerry Donald Spears v. Tri-County Electric Membership Cooperative, wherein a final judgment was entered against the utility on September 22, 1975. Excerpts from a discovery deposition given by Mayhew purportedly in that case were read to the jury and a copy of the final decree was offered in evidence. The decree awarded the plaintiff damages in the amount of $100.00 and a temporary injunction previously issued in the case was made permanent. Plaintiff insists this evidence was properly admitted because in the prior lawsuit defendant had relied on the rule involved in this case in terminating electric utility service and the chancellor in his ruling, by implication, determined the rule to be unreasonable and enjoined its enforcement. This theory, if timely advanced and established by evidence, would properly be considered by the triers of fact on the issue of punitive damages; however, plaintiff did not plead this theory or mention the prior case in his pleadings. Moreover, the record does not establish the same factual issue involving the rule in the instant case was litigated in the prior chancery case.

The general rule is former testimony as an exception to the hearsay rule may be allowed into evidence at trial, including testimony given in a prior hearing, whether a deposition, preliminary hearing or plenary trial. The rule, however, is limited by the further requirements that the declarant must be unavailable as a witness and the issues and, in this jurisdiction, the parties, must be the same. Paine, Tennessee Law of Evidence, § 50.

The evidence pertaining to the Sumner County Chancery case was improperly admitted. Upon excluding this evidence from consideration, there is no material evidence to establish a basis for an award of punitive damages in this case. Accordingly, we affirm the judgment for compensatory damages and reverse and dismiss the award of punitive damages, and remand.

The costs of appeal are assessed one-half to each party.

TODD, P.J. (M.S.) and LEWIS, J., concur.

      . Hix and her minor children had been residing with Smith at another address for approximately two months.

      . The regulation, in the form of a written policy since 1967, states:
      Meter sets for Delinquents—
      Meter shall not be installed for any consumer who is indebted to the Cooperative, nor may meter be set in name of another person when consumer indebted to Cooperative lives or plans to live in such residence.

      . T.C.A., § 65-24-109. Corporate membership—

        Terms and conditions. — (a) Except as hereinafter provided, the corporate purpose of each corporation shall be to render service to its members only.
      (b) Any person may become and remain a member if such person shall use energy supplied by such corporation and shall comply with the terms and conditions in respect to membership contained in the by-laws of such corporation, which terms and conditions shall be nondiscriminatory. Any person who shall agree to use energy supplied by the corporation from an existing line or from a line the construction of which has been authorized or commenced by the corporation may be admitted to membership in the corporation prior to such use upon complying with the other terms and conditions with respect to membership contained in the certificate of incorporation or in the by-laws. The membership fee of the corporation shall be fixed by the board of directors.

      . "Evidence” does not encompass the evidence we rule inadmissible, infra.


source: Caselaw Access Project

license: Public Domain

text:
    William KELTON, Plaintiff-Appellant, v. Craig SNELL, Sheriff of Rutherford County, and Jo Ann Arnold, Clerk and Master of Rutherford County, Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section, at Nashville.
    Feb. 13, 1985.
    Application for Permission to Appeal Denied by Supreme Court April 22, 1985.

      Lionel R. Barrett, Jr., P.C., Nashville, for plaintiff-appellant.
    Robert L. Estes, Reid M. Estes, Stewart, Estes & Donnell, Nashville, for defendants-appellees.
   OPINION

FRANKS, Judge.

Plaintiff’s action for damages, based upon the issuance of a writ of possession on the sale of his home by the clerk and master and an alleged breach of duty by the clerk following a stay of the writ by this court, was dismissed by the trial judge upon summary judgment.

The record of the prior case is not before us, other than the writ of possession issued by the clerk and master and the order staying the writ issued by this court. The writ of possession recites:

[B]y Decree in the above styled cause entered on the 19th day of June, 1981, the Court rendered judgment that the purchaser, Allen J. Gambill, have and recover immediate possession of the real estate involved which is described Tracts Nos. 2, 3 and 4, as described in the Clerk and Master’s REPORT OF SALE which is incorporated in said Decree, and it was further ORDERED by the Court that the Defendants [plaintiff herein] and all persons holding under them are directed to vacate the premises on or before June 26, 1981, and if they have not, the Clerk and Master is directed to issue a Writ of Possession to put the purchaser, Allen J. Gambill, in possession.
THEREFORE, YOU ARE DIRECTED AND COMMANDED to remove the Defendants from the aforesaid property and put said purchaser in possession thereof and make due return how you have executed this writ.

The writ was signed by the clerk and master and filed on June 30, 1981. The return shows the writ was received by the sheriff’s office at 1530 hrs. on June 30, 1981, and the return of service notes the writ was executed on July 2, at 0945 hrs.

On July 2, at 12 noon, on motion of plaintiff, a judge of this court signed an order staying “the issuance and/or execution of any writ of possession ... until after the expiration of 30 days from and after June 19, 1981.”

In the complaint, plaintiff alleges the stay order was “ignored” by the defendant “who proceeded to sell plaintiff’s property and placed Mr. Gambill in possession of his home”, and further charges the clerk and master with “improperly” issuing the writ of possession.

The clerk and master filed a motion for summary judgment and tendered her affidavit, wherein she states in pertinent part:

On July 2, 1981, (at approximately 1:20 p.m.) a Ms. Faulkner from the Court of Appeals called to inform me that Judge Todd had signed a Stay Order in the Kelton case and that “they were bringing a copy of the Order to me.” She asked me if I would, in turn, inform the sheriff’s office that a Stay Order was on the way. Pursuant to her instructions, I proceeded to call the sheriff’s office and talked to Mr. John Brown, who stated that they had already received information that a Stay Order had presumably been issued, and that when they received the Order they would be in touch with the Chancellor or the County Attorney.
Sometime later Mr. Kelton called to ask me to inform the sheriff of the Stay Order. He stated that he was at his home and that Deputy Vandervort, whose job was to give peaceful possession to Mr. Gambill pursuant to the writ, “threatened to arrest him if he entered his home.” I informed him of Ms. Falk-ner’s telephone call, and further told him that I had in turn advised the sheriff’s office that a Stay Order was coming, but that we had not yet received it. Mr. Kelton informed me that he would bring me the Stay Order immediately and he did so sometime thereafter. Upon his arrival, which was approximately 2:50 p.m. or thereafter, he requested that I accompany him to his former residence with the Stay Order. I declined to do so inasmuch as I thought such conduct would be improper and outside my jurisdiction and duties; however, I did call and ask for Sheriff Snell, who was out of town. I nevertheless talked to Deputy Butner, who advised me that the execution of the writ of possession had already taken place. I in turn informed Mr. Kel-ton of this fact.
Mr. Kelton insisted that I contact the sheriff and advise him of the Stay Order. However, I informed him that I had been informed that the sheriff was not in town, and that the county attorney would be the proper person to talk to and that I would be glad to call the county attorney for him. I proceeded to do just that. In the meanwhile, the Plaintiff called his attorney on my phone and conversed with him for over fifteen minutes. Mr. Ingram then informed me that this stay nullified the writ and that I should notify the sheriff of this fact. I informed him in turn that I had twice called the sheriff’s office, once immediately after Ms. Falkner’s call and once again after Mr. Kelton appeared in my office, and that as far as I knew, I had fulfilled my duty in that regard.

The trial court, upon determining the clerk and master should be granted summary judgment, observed:

This determination is made based on a review of the pleadings which indicate only one Affidavit on behalf of the Plaintiffs dealing with the factual issues which they raise to contradict the Motion for Summary Judgment. This Affidavit does not raise facts as to the actions of Jo Ann Arnold and, therefore, the Affidavit of Mrs. Arnold must be taken on face value as to the facts and events that took place. Based on that Affidavit, there appears to be no factual basis to claim negligence on her part that resulted in any loss alleged to have occurred to the Plaintiffs.

Plaintiff’s affidavit, filed in response to the motion for summary judgment, states the conclusion that the clerk and master “ignored” the stay order. This conclusion did not controvert the factual statements contained in the clerk and master’s affidavit, and the requirements of T.R.C.P., Rule 56, were not met:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. T.R.C.P., Rule 56.05.

The stay order issued by this court was a form of injunctive relief. T.R.A.P., Rule 7. In this connection, T.R.C.P., Rule 65.02(2) provides:

Every restraining order or injunction shall be binding upon the parties to the action, their officers, agents and attorneys; and upon other persons in active concert or participation with them who receive actual notice of the restraining order or injunction by personal service or otherwise.

It is undisputed that the clerk and master, upon being made aware of the stay order, promptly notified the sheriffs office of its existence and again called the sheriffs office when a copy of the stay order was physically delivered to her office. On these facts, we believe reasonable persons would all agree the clerk and master acted properly in the discharge of her duties to plaintiff.

Plaintiff further insists defendant was negligent in the issuance of the writ. A writ of possession is the execution of a decree or order of a court. Terry v. Clark, 72 Tenn. 186 (1879). The issuance of the writ of possession by the clerk and master was in obedience to an order of the chancellor, who established the time-table, and was a discharge of a duty imposed by statute. T.C.A., § 18-5-102. Also see Gibson’s Suits in Chancery (6th ed., Inman), § 642, Other Duties of the Clerk and Master. The record establishes no basis for negligence by the clerk and master upon the issuance of the writ.

We pretermit the remaining issues because the foregoing establishes the propriety of the summary judgment. The summary judgment is affirmed and the case remanded at appellant’s cost.

TODD, P.J. (M.S.), and LEWIS, J., concur.


author: BYERS, Judge.

text:
    STATE of Tennessee, Appellee, v. Bob McD. GREEN, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Sept. 14, 1984.
    John T. Milburn Rogers, Greeneville, Charles T. Herndon, IV, Johnson City, for appellant.
    W.J. Michael Cody, State Atty. Gen., Wayne E. Uhl, Asst. State Atty. Gen., Nashville, William R. Mooney and Teresa Murray, Asst. Dist. Attys. Gen., Johnson City, for appellee.
   OPINION

BYERS, Judge.

The defendant has filed an appeal as of right under Rule 3 T.R.A.P. from five judgments of summary contempt imposed upon him by the Criminal Court of Washington County.

The state has filed a motion to dismiss the appeal in which they contend that a summary contempt may not be reviewed on an appeal as of right under Rule 3. The state insists that summary judgments of contempt are reviewable only by way of extraordinary writs, and they rely upon cases decided long before the advent of the Tennessee Rules of Appellate Procedure.

Rule 3(b) T.R.A.P. provides that a defendant may appeal from a final judgment in a criminal contempt. The state’s position, however, is that because the judgment in this case was entered summarily against a lawyer for direct contempt in the presence of the court, this portion of the rule is not applicable.

The purpose behind the adoption of the various procedural rules was to simplify proceedings in the courts of this state and to abolish so far as possible the use of common law procedures which were cumbersome, outdated, and unnecessary.

In our opinion, it behooves the courts to interpret the rules in such a manner as to give applicability thereof to proceedings rather than to interpret them in such a way as to reimpose on our procedures the more cumbersome common law forms, when such application can be done without prejudice to the rights of litigants. Rule 3(b) makes no distinction between direct contempt or that contempt which would require notice and a hearing.

In our view a judgment of contempt, summary or otherwise becomes final upon the entering of punishment therefor, 17 C.J.S. Contempt § 114 (1963), and is thus appealable as of right under Rule 3 T.R. A.P. It matters not that the proceedings out of which the contempt arose are not complete.

The motion of the state to dismiss the appeal is therefore denied.

O’BRIEN and DUNCAN, JJ., concur.


author: DUNCAN, Judge.

text:
    STATE of Tennessee, Appellee, v. Reginald REED, Appellant.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Nov. 29, 1984.
    Permission to Appeal Denied by Supreme Court April 1, 1985.

      Thomas Travaglini, Nashville, for appellant.
    W.J. Michael Cody, Atty. Gen., Kevin Steiling, Asst. Atty. Gen., Thomas H. Shri-ver, Dist. Atty. Gen., Edward Bernard, Roe Ellen Coleman, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

DUNCAN, Judge.

The defendant, Reginald Reed, was found guilty of aggravated rape and armed robbery and was sentenced to Range II sentences of forty-five (45) years and forty (40) years, respectively. The trial court ordered his forty (40) year armed robbery sentence to be served consecutive to his forty-five (45) year aggravated rape sentence. The defendant was also convicted of aggravated assault for which he received a concurrent seven (7) year sentence; however, for reasons stated in this opinion his aggravated assault conviction must be set aside.

In this appeal, the defendant says the trial court made an incorrect statement to the jury on voir dire regarding the law on his right to the presumption of innocence, contests the admission of certain evidence, says he was improperly denied a hearing on his motion to suppress, raises issues about the trial court’s instructions to the jury, and argues that his sentences were improperly imposed. We find no reversible error incident to the defendant’s aggravated rape and armed robbery convictions, but we do find merit to one portion of his sentencing issue.

The defendant does not challenge the sufficiency of the evidence, but in order to explain our rulings on some of his issues, a recitation of some of the evidence will be helpful.

The State’s evidence showed that on March 24, 1983, the victim arrived at her duplex apartment at 5:55 a.m. The defendant was standing on the porch of his nearby duplex apartment. The victim entered her apartment, took a shower, and then heard a knock on her door. As she placed her hand on the doorknob, she noticed that it was already turning. The defendant came in and asked to use the phone. Subsequently, the defendant grabbed her by the arms and demanded a kiss. The victim went into her roommate’s bedroom to get a gun, but she could not find it. She returned to the living room, at which time the defendant was standing at the door. He had her purse under his arm, and he said, “I was going to steal your purse.” The defendant locked the door, grabbed the victim again by the arms, and struck her in the face and broke her glasses. The defendant then threw her into a chair, pulled out a knife, and continued to hit her in the face, choked her, and struck her with the knife which resulted in a deep puncture wound to her left upper arm. In the scuffle, the defendant received a cut on his finger with the same knife. Thereafter, the defendant raped the victim, took ten dollars ($10.00) from her and seventy-five dollars ($75.00) from her roommate’s room, and then left. In addition to the knife wound, the victim received head injuries. Soon after the event, the police arrested the defendant at his apartment where he was found hiding under the bed.

In his testimony, the defendant admitted being at the victim’s apartment on the occasion in question, and he attempted to convince the jury that he and the victim had a fight over a drug transaction. He said that the victim pointed a knife at him and that he slapped her hand away and struck her, causing her to fall, and that in falling, she fell on the knife and was wounded. The defendant denied that he raped or robbed the victim.

We need not further detail the evidence. Suffice it to say that the jury rejected the defendant’s version of the event, and accredited the testimony of the State’s witnesses. We find that the evidence is more than sufficient to show the defendant’s guilt.

Before we address the defendant’s issues, we will explain why the defendant’s conviction for aggravated assault must be set aside.

The defendant was charged in a three count indictment.

The first count charged him with aggravated rape, i.e. rape while “armed with a weapon, to-wit: a knife.” T.C.A. § 39-2-603(a)(1) (1982). The jury found him guilty of aggravated rape.

The second count charged the defendant with armed robbery, i.e. robbery “accomplished by the use of a deadly weapon, to-wit: a knife.” T.C.A. § 39-2-501 (1982). The jury found him guilty of armed robbery.

The third count charged the defendant with assault with intent to commit murder in the first degree, inflicting “bodily injury” upon the victim. T.C.A. § 39-2-103(a), (b) (1982). Regarding the third count, the jury reported that it found the defendant not guilty of assault with intent to commit murder in the first degree “involving bodily injury,” but rather found him guilty of the lesser included offense.of “aggravated assault with a deadly weapon.”

The jury’s verdict finding the defendant guilty of “aggravated assault with a deadly weapon” obviously had to be based on T.C.A. § 39-2-101(b)(3) (Supp.1984) which provides:

(b) Any person who:
(3) Assaults another while displaying a deadly weapon or while the victim knows such person has a deadly weapon in his possession ... is guilty of the offense of aggravated assault ...

As the proof developed in this case, the elements of this offense were all encompassed in the offense of aggravated rape by the use of a deadly weapon, for which the defendant was abo convicted.

The defendant’s conviction of aggravated rape on count one of the indictment was predicated on the fact that the assault was carried out while he was armed with a weapon, to-wit: the knife, and yet we see that his conviction on count three of the indictment of aggravated assault with a deadly weapon was also predicated on the fact that he committed the assault while displaying or being in possession of the same knife.

The offense of aggravated assault may or may not be a lesser included offense of aggravated rape, depending upon the allegations in the indictment and the proof. See Howard v. State, 578 S.W.2d 83 (Tenn.1979). See also State v. Johnson, 670 S.W.2d 634 (Tenn.Cr.App.1984).

We point out that while aggravated assault can be predicated on the fact that a deadly weapon was used, it can also be predicated on other facts. T.C.A. § 39-2-101(b)(1), (4) (Supp.1984). The same thing is true as to the offense of aggravated rape. T.C.A. § 39-2-603(a)(2), (3), (4) (1982). However, in the present case, as we have indicated, both of the aggravated assault elements, i.e., the assault and the use of the weapon, were elements involved in the defendant’s aggravated rape conviction.

Therefore, after considering the indictment allegations as stated in count one and count three, and the proof pertaining to those counts, as well as considering the jury’s verdict on count three where it predicated the defendant’s aggravated assault conviction on the use of the same weapon that was the basis of the defendant’s aggravated rape conviction, we come to the conclusion that in this case the offense of aggravated assault was a lesser included offense of the aggravated rape offense. Howard v. State, supra; State v. Johnson, supra.

Thus, we find that the defendant should not have been convicted of both aggravated rape and aggravated assault.

For the reasons stated, we reverse the defendant’s conviction for aggravated assault and that charge is dismissed.

Next, we will address the defendant’s voir dire complaint. At one point, during defense attorney’s examination of the jurors, the following exchange took place:

MR. WATSON: Right. As things stand right now, he’s presumed to be innocent and that presumption continues for the entire trial; is that right?
THE COURT: No, it doesn’t. That’s incorrect. It continues until the State has presented evidence to overcome that presumption. That might not be all the way through the trial.
MR. WATSON: I’m sorry, your Honor. I didn’t mean to misstate that.

Clearly, the trial court misstated the law because the presumption of innocence remains with the defendant throughout every stage of the trial. The law on this subject is correctly stated in T.P.I.—Crim. § 2.01 as follows:

The law presumes that the defendant is innocent of the charge against him. This presumption remains with the defendant throughout every stage of the trial, and it is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.

Although the trial court misstated the law, when viewed in the context of the other statements made during voir dire, as well as the entire case, the error is harmless.

During voir dire, the State’s counsel, defense counsel, as well as the trial court, repeatedly stressed to the jurors that the defendant was presumed innocent and that the entire burden rested on the State to prove his guilt beyond a reasonable doubt. In other parts of the voir dire, both State’s counsel and defense counsel elicited responses from the jurors that they would wait until they had heard all of the evidence before they would decide whether the defendant was guilty. Also, we note that at one point during voir dire, after the trial court had misstated the law, the trial court gave a correct statement of the law, saying:

Now, in this particular case, as well as any criminal case that you’ll be hearing during the process of your jury service over the next three weeks, there are several principles of law that you are to abide by and that will govern your sitting on juries.
One, is that the defendant enters the courtroom presumed to be innocent. This presumption remains with the defendant throughout each and every stage of the trial and is not overcome, unless from all the proof presented in the case, you are convinced that the defendant is guilty.
Now, in that regard, the State has the burden of proving the defendant’s guilt beyond a reasonable doubt and to a moral certainty, (emphasis added)

Further, we call attention to the fact that in its final instructions to the jury, the trial court gave a correct statement of the law on the subject by stating the language of the pattern instruction quoted above.

Accordingly, when the trial court’s error is viewed in the light of the entire proceedings, along with the ample evidence showing the defendant’s guilt, we conclude that no prejudice resulted to the defendant. We find that the error was harmless. T.R.A.P. 36(b); Tenn.R.Grim.P. 52(a).

Also, we apply the harmless error rule to the fact that Detective Ricky Roll was allowed to testify as to what the victim had told him about the details of the attack and about the description of the defendant that she gave him. The victim had already testified in substance to the same things. Detective Roll’s testimony was “merely cumulative and thus harmless.” State v. Lewis, 628 S.W.2d 750, 751 (Tenn.Cr.App.1981).

In another issue, the defendant says the trial court erred in allowing evidence of his prior conviction. During cross-examination of the defendant, the State elicited from the defendant that he had been convicted in 1982 of an attempt to commit a felony. During the jury out hearing on this question, it was shown that the defendant’s conviction was based on a burglary charge. This evidence was properly admitted. See State v. Morgan, 541 S.W.2d 385 (Tenn.1976).

Next, the defendant argues that a tape recording of his statement was improperly admitted into evidence.

After the defendant had testified denying having made certain statements to the police, the State in rebuttal was allowed to play the tape recording of that statement. A transcript of the tape had been made and had been furnished to the defendant prior to trial. The contents of the tape and the transcript were the same. In fact, Detective Roll had testified in the State’s case-in-chief about the contents of the defendant’s statement and the transcript of its contents had been filed in evidence, so therefore the playing of the tape in rebuttal did not tell the jury anything they had not already heard. We find no error.

Additionally, we find no error in the trial court’s action in refusing to grant the defendant a hearing on his motion to suppress. The trial court found that the motion was untimely filed. Also, the trial court found that the defendant had not shown “good cause” for the waiver of the time rule. The record supports both rulings. See Tenn.R.Crim.P. 12(b)(3) and 12(f); see also State v. Hamilton, 628 S.W.2d 742, 744 (Tenn.Cr.App.1981) and Feagins v. State, 596 S.W.2d 108 (Tenn.Cr.App.1979).

Another complaint by the defendant is that the trial court did not charge on the issue of self-defense. As we view this question, the issue of self-defense could only apply to the offense of aggravated assault and in view of our disposition of that charge, the issue is moot. Moreover, the credible evidence did not warrant any self-defense instruction. We point out that the defendant never indicated that he was in fear of the victim. He maintained that the victim was accidentally injured and that he did not intentionally inflict any injuries upon her.

Finally, we consider the defendant’s sentencing complaints.

The trial court ordered that the defendant be sentenced to Range II sentences for his offenses, and also ordered that his armed robbery sentence be served consecutive to his aggravated rape sentence.

Regarding the consecutive sentencing question, we note that the trial court based its ruling on a finding that the defendant was both a persistent and a dangerous offender.

The record shows that the defendant’s crimes indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. Also, the record shows that the defendant had previously been convicted of one felony (attempt to commit a felony) and more than two (2) misdemeanors. Thus, the record fully supports the trial court’s finding that the defendant was both a dangerous offender as well as a persistent offender, and as such he was an eligible candidate for consecutive sentencing under the dictates of Gray v. State, 538 S.W.2d 391, 393 (Tenn.1976).

However, we do find that the trial court, erred in imposing Range II sentences upon the defendant for his aggravated rape and armed robbery convictions.

The trial court imposed Range II sentences because he found the defendant to be an especially aggravated offender based on two (2) separate factors, as listed in T.C.A. § 40-35-107(2) and (3)(C) (1982 and Supp.1984), i.e. willful infliction of serious bodily injury upon the victim, and committing the instant crime while on probation. Under the 1983 and 1984 amendments to T.C.A. § 40-35-107, the trial court would have been authorized to impose Range II sentences because the enumerated factors used to find that the defendant committed especially aggravated offenses were not alleged as statutory elements in the indictment. See T.C.A. § 40-35-107(6)(A) (Supp.1984).

Nevertheless, since the defendant’s offenses were committed on March 24, 1983 (prior to the effective dates of the 1983 and 1984 amendments to T.C.A. § 40-35-107), then the propriety of the defendant’s eligibility for Range II sentences must be judged under the statutory provisions that were in effect prior to the amendments.

At the time of the defendant’s offenses, T.C.A. § 40-35-107(6)(A) (1982) contained this proviso: “The provisions of this section shall not apply to sentencing for an offense ... [i]f the provisions of the crime charged in the indictment provide for some form of enhancement for the commission of that offense in an aggravated manner.”

Therefore, since each of the defendant’s convictions for aggravated rape and armed robbery already carried its own form of enhanced punishment because they had been committed in an aggravated manner, then it follows that the provision of the statute applicable to the defendant plainly precluded the use of any aggravating factor so as to qualify him as an especially aggravated offender and thereby make him eligible for Range II sentencing.

In State v. Jeffrey Fort, No. 83-210-III (Tenn.Cr.App., Nashville, June 1,1984), our Court dealt with practically the same Range II sentencing issue that is involved in the instant case. In that case, we interpreted the law, as set out in T.C.A. § 40-35-107(6)(A) (1982) (prior to the 1983 and 1984 amendments), the same as we have done in the present case.

Accordingly, we find that the defendant’s Range II sentences were improperly imposed.

For the reasons stated in this opinion, we reverse the defendant’s conviction for aggravated assault and that charge is dismissed. We affirm his convictions for aggravated rape and armed robbery; however, his Range II sentences for those convictions are set aside, and the case is remanded to the trial court for a new sentencing hearing, at which hearing the trial court will fix Range I sentences at such terms as the trial court, in its discretion, deems appropriate. See T.C.A. § 40-35-109(a) (1982 and Supp.1984).

TATUM and CORNELIUS, JJ., concur.


author: O’BRIEN, Judge.

text:
    STATE of Tennessee, Appellee, v. Jack Farris PURKEY, Appellant.
    Court of Criminal Appeals of Tennessee, at Knoxville.
    Dec. 13, 1984.
    Permission to Appeal Dismissed by Supreme Court April 1, 1985.

      William M. Leech, Jr., Atty. Gen., Wayne E. Uhl, Asst. Atty. Gen., Nashville, Charles Hawk, Dist. Atty. Gen., Kingston, for ap-pellee.
    Thomas D. Shelburne, Rogersville, for appellant.
   OPINION

O’BRIEN, Judge.

Defendant was convicted of embezzlement by a jury in the Hawkins County Criminal Court and sentenced to serve not less than three (3) years nor more than three (3) years in the penitentiary, and to pay a fine of Fifty Thousand Eight Hundred Eighteen Dollars and forty-eight cents ($50,818.48), the amount embezzled. He was also found guilty on two counts of failure, as a county official, to deposit county funds in accordance with T.C.A. § 5-8-207. He was sentenced to serve thirty days in jail on each of the two misdemeanor counts concurrently with the penitentiary sentence.

The sufficiency of the conviction evidence has not been challenged, however, a brief summary of the facts will be beneficial to place the matter in its proper perspective.

Defendant was the Hawkins County Circuit Court Clerk. On August 31, 1981 State auditors made a routine check of the Clerk’s books. The procedure employed was to check the latest receipt issued for monies received against the most recent bank deposit of public funds to the credit of the Clerk’s official account. This was followed by an actual count of the remaining cash on hand in the office on that date, and finally by an annual audit which was begun on May 17, 1982. While this audit was in progress irregularities were disclosed which prompted a further investigation.

Statutory accounting procedures require the issuance of receipts for any payment made into the Clerk’s office, and for all funds received to be deposited within three days into an official account. The audit revealed that receipts had not been issued for certain checks which had been deposited in the bank. The auditors concluded that some cash payments had been received and entries made in the receipt books, but the cash received was not deposited in the bank. For the period between September 1, 1980 and August 31, 1981, shortages totaled about $31,000. By May 17, 1982 the discrepancy had increased to $50,-818.48.

The auditors requested defendant to produce all of the cash on hand. Defendant informed them that all of the money was not there. That he had a large farming operation and would sometimes write personal checks to the cash box and replace the money at the end of the month. He requested time to compute the amount of the shortage so it could be augmented by his personal check to be included in the auditor’s computation. A few days later defendant produced cash accompanied by his personal check in the amount of $23,500 to make up the sum of $51,013 which had been his computation of the shortage.

The District Attorney General became aware of the apparent shortage of funds while the audit was in progress: During the next ensuing weeks he had two or three short conversations with defendant about the situation. When the audit was complete and the approximate amount of shortage was ascertained he set up an informal conference with the County Executive and two of the judges whose courts were served by the clerk’s office. Defendant was requested to attend. When notified, defendant suggested meeting first with the Attorney General privately to discuss the matter. The called meeting was conducted for the general purpose of informing the judges of the contents of the audit report and to talk over the facts of the situation. There was no official action discussed, or taken, at the meeting which lasted about ten or fifteen minutes.

It is defendant’s first insistence that he was entitled to immunity from prosecution under the provisions of T.C.A. § 8-47-107. Chapter 47 of Title 8 of the Code pertains to the removal of public officers from office who shall knowingly or willfully misconduct themselves in office, or who shall knowingly or willfully neglect to perform any duty enjoined upon them by any of the laws of the State, etc. Among other things it provides for investigation, institution of proceedings against defalcating officers, and the procedure for their ouster from office in appropriate circumstances. The various sections generally provide that when the circumstances warrant it is the duty of the State Attorney General, the District Attorneys General, or County or City Attorneys, within their respective jurisdictions, to initiate an investigation, and upon a finding of reasonable cause, institute proceedings in court for the ouster of an offending officer from office. The statutes invest the investigating officers with subpoena power, in the course of their investigation, for witnesses whom they believe have any knowledge of the subject matter of the investigation. Witnesses called to appear before the investigating officer shall be sworn to testify truly on all questions touching the matter under investigation. T.C.A. § 8-47-107 specifically provides for immunity from prosecution:

“No person shall be excused from testifying before said attorney general, district attorney general, county attorney, or city attorney, at such investigation, or in any investigation, or be excused from testifying in any proceeding brought in any court of competent jurisdiction, under the provisions of this chapter, on the ground that his testimony may incriminate him; but no person shall be prosecuted or punished on account of any transaction, matter, or thing concerning which he shall be compelled to testify, nor shall such testimony be used against him in prosecutions for any crime or misdemeanor under the laws of this state.”

Defendant argues that he was compelled to appear at the meeting with the District Attorney and the judges and was interrogated in a coercive atmosphere about the matter for which he now stands convicted. That he was not advised of his rights at that meeting even though the investigation had focused on him as a suspect and he is entitled to the immunity granted by the statute.

A complete pre-trial hearing was held on this issue. The trial court held the meeting between defendant, the District Attorney General and the judges did not fall within the scope of the statute, and that ouster was not discussed. Criminal prosecution was not discussed. He held that it was an informal process, not held under authority of law, no one was placed under oath or compelled to testify and that T.C.A. § 8-47-107 did not bar prosecution. We concur with the trial court. From the record it is clear defendant was not compelled to attend the meeting and did not testify. The issue is without merit.

Defendant charges the trial court erred in allowing the supervisor of the auditors who conducted the audit of the books to testify to his conclusions based upon the audit performed by others under his supervision. It is argued that though the witness supervised the work he did not perform the audit, and was allowed to testify on his conclusions that unreceipted funds were used to replace funds previously embezzled. It is also contended that the witness was not qualified as an expert and the opinions expressed by him were beyond his expertise and went to the ultimate issue of the prosecution.

The record does not bear out the contentions made by the defendant. Larry Bailey testified he was a supervisor in the State Comptroller’s Office, Division of County Audit, and had assigned a particular auditor to do the cash count in this case according to procedures he had established. The assigned auditor ran into some peculiar problems and Mr. Bailey became personally involved, examining all of the receipts, deposits, and monetary transactions of the Clerk’s office. It is plain that Mr. Bailey’s testimony was based on his own observations and not that of anyone else. Generally a lay witness may testify regarding facts about which he has firsthand knowledge. See State v. Wiseman, 643 S.W.2d 354, 364 (Tenn.Cr.App.1982). An expert’s opinion is not objectionable merely because it embraces an ultimate issue to be decided by the trier of fact, so long as it is helpful to the court. Lawrence County Bank v. Riddle, 621 S.W.2d 735, 737 (Tenn.1981). Mr. Bailey was fully qualified as an expert in his field. The issue is overruled.

Defendant says the court erred in admitting into evidence certain charts which were prepared by the State’s witness, William McBee. This witness testified he was a special agent for the Tennessee Bureau of Investigation with a degree in accounting. He was an auditor for the State of Tennessee for three years, and had various other related experience over a period of six or seven years. He had been involved in the investigation of the Circuit Court Clerk’s Office of Hawkins County, and had made an analysis of certain bank accounts of defendant and his wife. He produced copies of the bank records of the accounts which included microfilm copies of bank statements for the period of time in question, deposit slips and supportive information reflecting the deposits shown on the statement. These records were filed and marked as exhibits in the case. The witness explained the nature of his investigation and his analysis of the accounts and produced charts and graphs which he had prepared to assist in the explanation of his analysis of the accounts. The charts were filed in evidence and utilized by him in his testimony. Defendant argues there was no proper foundation laid for the introduction of the charts which stated conclusions rather than being illustrative of the witness’ testimony.

This Court recently reviewed an almost identical situation in State v. Wiseman, supra, in which an accountant used a chart to summarize business records in an embezzlement case. The Court stated:

“When the documents introduced in evidence are voluminous and of such a character as to render it difficult for the jury to comprehend material facts without abstracts thereof, it is within the discretion of the trial judge to admit the abstracts provided they are based on facts in evidence, verified by the testimony of the preparer, and provided the adverse party is allowed to examine them to test their correctness by cross-examination.” (643 S.W.2d at 365).

These conditions were met in the instant case. The witness verified the information on the charts and the bank statements on which the charts were based were introduced into evidence. Defense counsel had adequate opportunity to test the correctness of the charts by cross-examination of the witness. The trial judge did not abuse his discretion in allowing the State to use the charts.

Defendant propounds the proposition that T.C.A. § 5-8-209, the penalty statute for failure of public officials to maintain an official bank account, violates Article 6, See. 14 of the Tennessee Constitution because it provides for a fine of not less than $50 nor more than $200, or by imprisonment, in the discretion of the court. Article 6, Sec. 14 of the Constitution provides that no fine shall be levied in excess of $50 unless it shall be assessed by a jury. Defendant says the statute is unconstitutional because it allows the court to fix a fine contrary to the quoted constitutional provision.

In State v. White, 177 S.W. 478, 132 Tenn. 203, 206 (1915), in construing a similar statute it was held that the word “court as used in the statute, is not a designation of the presiding judge, but the term is used in a collective sense, indicating the tribunal before which the conviction should be had, and includes both court and jury. Moreover, the limitations upon the power of the trial court imposed by Article 6, Sec. 14 of the Constitution may be waived by an accused. State v. Durso, 645 S.W.2d 753, 759 (Tenn.1983). Notwithstanding all of the foregoing, a person has no standing to contest the constitutionality of a statutory provision unless the provisions he claims to be deficient has been used to deprive him of his rights. State v. Vanzant, 659 S.W.2d 816 (Tenn.Cr.App.1983); State v. Pritchett, 621 S.W.2d 127 (Tenn.1981). There was no fine imposed in this case upon defendant. Moreover we note that were we to find the statute unconstitutional, it would affect only the lesser judgments for failure to deposit funds, and not defendant’s conviction for embezzlement.

Defendant avers he was a proper candidate for probation under statutory criteria and case law. He also says the trial court erred in denying probation in disregard of a favorable pre-sentence report; by basing his decision on deterrence as a factor; and in denying probation when to grant the same would benefit both the defendant and the public.

In the order denying probation the trial court dwelt extensively on the numerous factors militating in favor of defendant’s probation. He also made a finding that the plan to embezzle funds from the county was a continuing scheme executed over the course of an extended period of time. Substantial sums of money were taken and the records were artfully juggled so that all accounts were balanced. Except for the discovery of discrepancies in a limited audit the loss of public funds would have never been discovered. He found that guilt was evident and that defendant maliciously impugned the integrity of his employees at trial in an attempt to sacrifice their reputation for his personal advantage. He found defendant unre-morseful and unrepentant. He held that the public’s confidence in public servants is imperative in a free society and that public corruption has been rampant in that area in recent months involving sheriffs, trustees, assistant district attorneys general, and other public officers. He held that the public right to responsible public officials must be vindicated and that criminal misconduct must be punished to deter those similarly situated, and to renew the faith and confidence of the citizens in their officials and in the criminal justice system. Because of the continuing nature of the malevolent acts, the nature and circumstances of the offense, the enormity of the crime, the great need for deterrence, the vindication of public wrong, that probation should be denied.

An appellate court is not authorized to weigh evidence or substitute its judgment for that of a trial judge in reviewing an order granting or denying a petition for a suspended sentence or probation. See State v. Hollingsworth, 647 S.W.2d 937 (Tenn.1983); State v. Grear, 568 S.W.2d 285 (Tenn.1978), cert denied, 439 U.S. 1077, 99 S.Ct. 854, 59 L.Ed.2d 45 (1979). The decision of the trial judge in ruling on a petition for suspended sentence or probation is binding on the appellate courts, unless the decision is capricious, arbitrary, or indicates a palpable abuse of discretion. State v. Hollingsworth, supra. In Grear, supra, the Supreme Court pointed out that:

“... in order for the reviewing appellate court to be warranted in finding an abuse of discretion by the trial court in these cases it must demonstrate that the record contains no substantial evidence to support the conclusion of the trial court that the defendant is not entitled to probation or suspended sentence, giving due consideration to the criteria set out in the statute and decisions of this Court as appropriate for determining suitability for probation.”

In the ease under consideration there is evidence pro and con on the issue of suspension of sentence and probation. The trial judge elected to require the defendant to serve his sentence and denied probation. His decision is binding on the appellate courts. See State v. Neeley, 678 S.W.2d 48 (Tenn.1984); State v. Pierson, 678 S.W.2d 905 (Tenn.1984).

The judgment of the trial court is affirmed.

BYERS, J., and WILLIAM H. WILLIAMS, Special Judge, concur.


author: TATUM, Judge.

text:
    STATE of Tennessee, Appellee, v. Charles LANE, Carl Courtney and David Webb, Appellants.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Dec. 14, 1984.
    Permission to Appeal Dismissed, as to Webb; Denied as to Lane and Courtney, by the Supreme Court, April 1, 1985.

      Jerry B. Bible, Jasper, for Lane.
    William C. Killian, Jasper, for Courtney.
    Howard G. Swafford, Jasper, for Webb.
    W.J. Michael Cody, Atty. Gen., Jerry L. Smith, Asst. Atty. Gen., Nashville, J. Mike Caputo, Asst. Dist. Atty. Gen., Jasper, J. William Pope, Dist. Atty. Gen., Pikeville, for appellee.
   OPINION

TATUM, Judge.

The defendants Lane and Webb were convicted of bank robbery and Courtney was convicted of armed bank robbery and possession of a sawed-off rifle. Webb was sentenced to 30 years imprisonment and Lane was sentenced to 20 years. Courtney was sentenced to 31 years on the armed bank robbery conviction and 2 years on the illegal weapons conviction.

The issues presented by Courtney and Lane center around the refusal of the trial judge to order a psychiatric examination for Courtney. We find no merit in these issues. We cannot consider the issues presented by Webb for the reasons hereinafter stated.

None of the defendants question the sufficiency of the evidence. It overwhelmingly establishes that Courtney and Lane entered the Inter-Federal Savings and Loan in South Pittsburg, Tennessee, and robbed it. Courtney displayed a sawed-off .22 rifle. Approximately 10 or 15 minutes later a policeman saw an automobile fitting the description of the getaway car with a passenger fitting the description of one of the bank robbers. The officers stopped the car, which was occupied by the three defendants, and retrieved the money taken at the bank from under the front passenger’s seat. The sawed-off rifle was also found in the car. It is not necessary to detail the evidence establishing these facts.

We first consider the issues presented by the defendant, Carl Courtney. He says that the trial court erred in refusing his motion for a psychiatric evaluation made prior to and during the trial and that the trial court erred in denying a continuance for the requested psychiatric evaluation. Courtney says that he made an oral motion for a psychiatric examination on April 28, 1983 and filed a written motion supported by counsel’s affidavit on May 10, 1983. Neither the motion nor an affidavit of Courtney’s attorney is in the record. There was no evidence offered in support of the motion other than counsel’s affidavit. Since the affidavit is not in the record, we are forced to glean its contents from argument on the motion. In arguing for a continuance, Courtney’s attorney stated that his affidavit contained the following information: that Courtney told him that he (Courtney) had spent from 1969 to 1972 in a mental hospital in Florida, and that Courtney told the attorney that he (Courtney) had received brain surgery and had been treated by Dr. Stephen Ellison Nathel-son of Knoxville, Tennessee for psychiatric problems. Based on this information he had received from Courtney and the fact that Courtney did not communicate well with the attorney, the attorney was of the opinion that Courtney had “mental problems.” We cannot determine what other information might have been contained in the affidavit. The defendant did not testify in support of his motion for a psychiatric examination and no record or statement was submitted from the Florida State Mental Hospital where Courtney allegedly was confined. Dr. Nathelson did not testify and no statement or record was submitted to the court from him. No explanation was given for the failure to produce the medical evidence. No hint is given as to the nature of the alleged treatment or “mental problem.” The defendant had been tried, and convicted in another case after his confinement in the Florida institution. The trial judge denied the pretrial motion for a continuance and a psychiatric examination, saying that he had nothing before him in support of the motion other than the attorney’s affidavit which was based entirely upon what Courtney had told him.

T.C.A. § 33-7-301 authorizes a psychiatric examination “(w)hen a person charged with a criminal offense is believed to be incompetent to stand trial, or there is a question as to his mental capacity at the time of the commission of the crime.” (emphasis supplied). This court has held that the statute vests discretion in granting a psychiatric evaluation with the trial judge. An appellate court will not grant a reversal based on the exercise of discretion absent a showing that the trial judge abused his discretion. State v. Robinson, 622 S.W.2d 62 (Tenn.Crim.App.1981). The proof submitted to the trial judge for an evaluation pursuant to § 33-7-301 was not substantial. We do not find that the trial judge abused his discretion in denying the pretrial examination.

The defendant moved for a mistrial for the purpose of granting a psychiatric examination during the trial. On the morning of the second day of trial, defense counsel procured an interview of Courtney by Miss Jan Taylor, who had a Master’s Degree in Psychology from the University of Tennessee at Chattanooga and had finished her internship at the Chattanooga Psychiatric Clinic. She visited with Courtney for about one hour and fifteen minutes.

Miss Taylor testified that Courtney would be “worthy — for further evaluation to determine how much, if any, mental instability he had.” This was based largely on a diagnosis of a “possible sociopathic tendency,” which she explained as follows:

“MR. KILLIAN: (Interposing) Yeah, explain that. I mean explain...
MISS TAYLOR: Okay. Well, he has a very charming nature. And it seems to be absolutely coherent and it’s as if he can change his moods at his own will, but it’s hard to decide. I cannot not diagnosis him as that, but definitely the tendencies are there. There was some schizophrenic type things too that I noticed. His visions has (sic) had for quite a while, of seeing himself from outside of himself which is another classic indicator of mental disorder.
MR. KILLIAN: Did he relate to you the past history of the accident?
MISS TAYLOR: Yes, he did.
MR. KILLIAN: And the staying in the mental hospital and so forth?
MISS TAYLOR: Yes. His memory is very good, which is another symptom or another classic point of sociopathic personality. His memory and his ability to talk and explain and communicate is, at least, average or above average. And he did explain his accident.”

Thus, we see from her testimony that during trial the defendant was “absolutely coherent.” His memory and ability to talk, explain and communicate were average or above average.

Miss Taylor did not know the legal definition of insanity. There was no showing that she was aware of what degree of competency the law requires to put a defendant to trial. Her testimony would seem to indicate that he was very competent to stand trial and there is nothing to indicate that he was legally insane at the time the offense was committed. The defendant’s testimony was coherent.

After Mr. Courtney testified, his attorney stated to the court that Courtney had given him six other versions of what occurred. The failure of a defendant to give consistent versions of a criminal episode does not indicate insanity or incompetency to stand trial. Defense counsel also states that Courtney attempted suicide about 7 weeks before trial but trial evidence was that he “scratched” his wrists with disposable razors and the wounds required no medical attention. The trial judge did not abuse his discretion in refusing a mistrial to enable the defendant to undergo further psychological testing. There is no merit in Courtney’s issues.

The defendant Lane complains of the trial court’s refusal to order a psychiatric evaluation of Courtney on the pretrial motion and during trial. Lane says that if Courtney had been given a mental evaluation and found to be incompetent or insane at the time of trial, Courtney's testimony would not have been allowed in evidence. Courtney’s testimony inculpated Lane.

Our disposal of Courtney’s issues requires no further discussion of this issue presented by Lane. There is no showing that Courtney was not competent to be a witness. See T.C.A. § 24-1-101.

Lane also states that the trial judge should have stopped the trial and ordered a mental evaluation of Courtney because Courtney “waved and smiled at the jurors and at times made gestures to the jurors which indicated he was trying to communicate to them through the use of sign language. Defendant Lane candidly states that these alleged incidents are not in the record. Hence, they cannot be considered by us. Lane’s issues are overruled.

The defendant Webb says that his arrest was illegal, that the officer did not have probable cause to stop the automobile in which he was riding and make a search and that the identification evidence should have been suppressed. He also says that he was entitled to a severance and that he was prejudiced by the trial misconduct of Charles Lane.

The verdict of the jury rendered on June 28, 1983, found Webb guilty. His motion for a new trial was filed on October 10, 1983, approximately 2V2 months after the date of the verdict. The trial court lost jurisdiction 30 days after the jury verdict and the motion for a new trial filed later than 30 days from the date of the jury verdict was a nullity.

Prior to May 26, 1983, T.C.A. § 40-35-401 provided that the time for the filing of a motion for a new trial should commence to run upon entry of judgment. However, effective May 26, 1983, the Legislature amended T.C.A. § 40-35-401 to provide that the time for filing of a motion for a new trial commenced to run on the date of the verdict in conformity with Tennessee Rule of Criminal Procedure 33. That rule provides for a 30-day period for filing new trial motions commencing on the date of the verdict. Because the issues raised by Webb have not been presented to the trial court in a timely filed motion for a new trial, the issues must be considered waived. See T.R.A.P. 3(e), State v. Givhan, 616 S.W.2d 612 (Tenn.Crim.App.1980).

We note, however, that the defendant was not prejudiced by the failure to file the motion for a new trial within the time required. We have observed that the issues presented on this appeal are without merit.

The judgment of the trial court is affirmed as to all three defendants.

O’BRIEN, Judge, and SAMUEL L. LEWIS, Special Judge, concur.


author: McGEE, Justice.

text:
    Donald E. McKNIGHT, Petitioner, v. HILL & HILL EXTERMINATORS, INC., Respondent.
    No. C-3361.
    Supreme Court of Texas.
    March 27, 1985.
    Rehearing Denied May 22, 1985.
    Watson, Flynn & Bensik, Patrick M. Flynn, Houston, for petitioner.
    Kirklin, Boudreaux & Joseph, Charles B. Kirklin and Robert G. Gibson, Jr., Houston, for respondent.
   McGEE, Justice.

This is a suit for damages under the Deceptive Trade Practices Act. The action was instituted by Donald E. McKnight upon discovery of termite damage to his home. The trial court rendered judgment in favor of McKnight. The court of appeals reversed the judgment of the trial court and rendered judgment in favor of Hill & Hill Exterminators, Inc., 678 S.W.2d 515. We affirm the judgment of the court of appeals.

In March 1968, McKnight executed a termite treatment and control contract with Hill & Hill. The contract was extended through the payment of a yearly fee and annual inspections were made until January 19, 1977. On April 13, 1977, live termites were discovered during remodeling of the McKnight’s home. McKnight brought suit under the DTPA and for breach of express warranties. An action on the contract was not alleged. The jury returned a verdict in favor of McKnight finding that Hill & Hill engaged in a deceptive trade practice on March 30, 1968 by issuing a warranty against future termite infestation upon the payment of an annual renewal fee. The jury also found that Hill & Hill represented that there were no live termites in the home on January 19, 1977, and that a preventative treatment was applied on the same date. McKnight submitted evidence that the total cost of repairing all termite damage in the home was $3,141.00. The special issue on damages did not require the jury to apportion the total damages between the 1968 or 1977 representations. The jury awarded $3,141.00 as actual damages, plus $304 for chemical retreatment of the home. The trial court trebled the damages, awarded attorney’s fees of $3,300, and rendered judgment for McKnight in the amount of $13,635.00.

The court of appeals held that the 1968 representation was not a basis for liability because it occurred prior to the effective date of the DTPA. Therefore, the court of appeals held that liability must be predicated upon the representations made by Hill & Hill on January 19, 1977. Because McKnight produced no evidence that all the termite damage occurred after January 19, 1977, the court reversed the judgment of the trial court and rendered judgment for Hill & Hill. McKnight does not appeal the court of appeals’ holding that the evidence must establish that all of the termite damage occurred after January 19, 1977. Rather, McKnight asserts that there is evidence to support such a finding.

In deciding a no evidence point, we consider only the evidence and inferences which support the jury finding ai.d disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). The point must be sustained if there is a complete absence of, or no more than a scintilla of evidence which supports the verdict. Freeman v. Texas Compensation Ins. Co., 603 S.W.2d 186 (Tex.1980).

This case involves uncertainty of the fact of damages. There is a distinction between uncertainty as to the fact of damages and uncertainty merely as to the amount of damages. “Uncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount will not defeat recovery.” Southwest Battery Corp. v. Owen, 131 Tex. 423, 427-8, 115 S.W.2d 1097, 1099 (1938); Hindman v. Texas Lime Co., 157 Tex. 592, 305 S.W.2d 947 (1957). The narrow question posed in this cause is whether there is legally sufficient evidence for the jury to conclude that all of the termite damage occurred after January 19, 1977.

Other jurisdictions have noted the difficulty in determining that termite damage is the factual result of the defendants’ negligence due to the inherent difficulty in determining the exact date of termite infestation. See Annot. 32 A.L.R.4th 682 (1984). However, the task is not impossible, and the courts have universally held that the plaintiff must produce competent evidence from which the jury may reasonably infer that the damages sought were the result of the defendants’ acts. Alabama v. Howell, 276 Ala. 66, 158 So.2d 915, 918 (1963); Neary v. Posner, 253 Md. 401, 252 A.2d 843, 856 (1969); Hamilton v. Walker Chemical & Exterminating Co., 233 So.2d 440, 443-4 (Fla.Dist.Ct.App.1970).

Although the date of infestation may not be exactly determined, an expert witness may form a conclusion as to the approximate date of infestation through examination of the premises and analysis of the damaged wood. Neary v. Posner, 252 A.2d at 845; Termitrol Engineers, Inc. v. Duncan, 112 So.2d 419, 421 (Fla.Dist.Ct.App.1959); See also 15 Am.Jur. Proof of Facts 400 (1966). In addition, the plaintiff may establish an approximate date of infestation or prove that all damage has resulted from the defendant’s acts through circumstantial evidence. See Baird v. Dodson Exterminating Co., 217 Va. 745, 232 S.E.2d 770 (1977) (jury could reasonably infer that upon repair of termite damage at time of initial treatment, all subsequent damage resulted from the defendants’ negligence); Ohio Valley Terminix Corp. v. Rudolph, 444 S.W.2d 114 (Ky.1969) (report showing “old” termite damage was sufficient to submit question of “new” termite damage to jury); Alabama v. Howell, 158 So.2d at 918 (testimony that partially destroyed wood would indicate “new” rather than “old” termite damage); Higdon v. Orkin Exterminating Co., 412 So.2d 720 (La.Ct.App.1982) (graph showing the location of active termites coupled with expert testimony could form basis from which jury could infer that damage found two years later occurred after the initial treatment); Maguire v. Masino, 325 So.2d 844 (La.Ct.App.1975) (swarming termites indicate an infestation within the previous three months).

Two recent court of appeals cases have addressed the question of the sufficiency of proof as to termite infestation and damage. In Marquez v. Sears, Roebuck & Co., 625 S.W.2d 52 (Tex.App.—San Antonio 1981) rev’d on other grounds, per curiam 628 S.W.2d 772 (Tex.1982), the plaintiff brought suit upon the discovery of termite damage two and a half years after the execution of a termite control contract. The plaintiff submitted proof that the cost to repair the termite damage was $39,774. However, the estimate was for a total remodeling job and “would include repair of anything that needed repair, such as electric wiring, plumbing and replacement of asbestos siding, none of which were damaged by termites. [The witness] also recognized that there was some water damage, particularly around the bathroom, which would be repaired.” 625 S.W.2d at 53.

The parties in Marquez agreed that there was some new subterranean termite damage. Marquez admitted that the damage depicted in photographs introduced into evidence was more severe than that existing when suit was brought. The court of appeals noted that the only proof offered at trial was that some of the new damage “was caused by subterranean termites between the inception of the extermination contract and the institution of suit.” Id. at 55. However, the Marquez court held that there was no evidence upon which the jury could reasonably estimate the amount of damages. The court did not address the question of whether there was evidence to support a finding that the damages sued for were the factual result of the defendants’ acts.

In Terminix International, Inc. v. Lucci, 670 S.W.2d 657 (Tex.App.—San Antonio 1984, writ ref’d n.r.e.), the plaintiff discovered termite damage in her home in 1976. In February, 1976, a termite control and guarantee contract was executed and the infestation abated. The plaintiff brought suit for new subterranean termite damage when active termites were discovered in September, 1978. The court applied the rule as to uncertainty of the amount of damages and held that recovery would not be defeated if the injured party produced the best evidence from which the extent of damages may be ascertained. 670 S.W.2d at 664. We agree that the plaintiff in Lucci should not have been denied recovery merely because the monetary amount of damages was difficult to estimate. However, the Lucci court purported to allow plaintiff recovery for termite damage occurring prior to the date of the original termite contract. Id. at 663. We expressly disapprove of this language.

We hold that the plaintiff must produce evidence from which the jury may reasonably infer that the damage sued for has resulted from the conduct of the defendant. Southwest Battery Corp. v. Owen, 131 Tex. at 427-8, 115 S.W.2d at 1099; Texas & P. Ry. Co. v. Dunn, 17 S.W. 822 (Tex. 1891); In the case at bar, the plaintiff’s expert did not conduct a personal examination of the McKnight home. The witness testified that from examining photographs, he could not tell whether there was any recent live subterranean termite activity. The witness further stated that the termite damage depicted in the photographs “may have been there before, it might be new.” He stated that because the photographs taken 84 days after the January representations depicted moisture, the infestation might have occurred within the previous 60-90 days. However, the witness testified that the damage might be as old as 30 years. We hold that this testimony raised no more than a suspicion or surmise that all of the termite damage occurred after January 19, 1977. Seideneck v. Cal Bayreuther Associates, 451 S.W.2d 752 (Tex.1970); Rounsaville v. Bullard, 154 Tex. 260, 276 S.W.2d 791 (1955); Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898). Therefore, there was no evidence upon which the jury verdict could be sustained.

The judgment of the court of appeals is affirmed.

KILGARLIN, J., not sitting.


author: PER CURIAM.

text:
    James Lewis ROBERTSON et al. v. RANGER INSURANCE COMPANY.
    No. C-3774.
    Supreme Court of Texas.
    May 1, 1985.

      Byrd, Davis and Eisenbert, Tom H. Davis and Mike Davis, James Brady, Austin, for petitioners.
    Small, Craig and Werkenthin, C.C. Small, Jr., Austin, for respondent.
   PER CURIAM.

Amelda Ann McKnight was a passenger in an airplane flown by Byron McKnight, her husband, when the plane crashed in 1974. Both were killed. Thereafter, Robertson, as executor of Amelda Ann’s estate, sued the estate of Byron McKnight for wrongful death in the Travis County District Court. Judgment was rendered in that suit, and ultimately appealed to this court. This court dealt with an interspousal immunity question and remanded the cause for a trial on the merits on the basis that New Mexico law on interspousal immunity should be applied. 609 S.W.2d 534.

A motion for rehearing was then filed by McKnight’s estate. Before the motion was acted on by this court, the parties settled their claims without notice to Ranger Insurance Company. The district court rendered a consent judgment against the husband’s estate based on the settlement agreement. Over one month later this court overruled the motion for rehearing.

The representatives of both estates thereafter sued Ranger Insurance Company, the liability carrier of Byron McKnight’s estate, seeking to enforce the consent judgment. Ranger filed a declaratory judgment suit seeking to avoid liability under the consent judgment by claiming that it was void and by raising certain policy defenses. The two cases were consolidated by the district court.

The trial court rendered judgment against Ranger for the amount of the consent judgment and filed findings of fact and conclusions of law which established Ranger’s liability under the insurance contract. The court of appeals vacated the trial court’s judgment and dismissed the appeal, holding that the judgment was based on the void consent judgment and was void. 680 S.W.2d 618.

The court of appeals correctly found that the consent judgment was rendered at a time when this court had exclusive plenary jurisdiction over the case. See Davis v. Huey, 571 S.W.2d 859 (Tex.1978); Carrillo v. State, 480 S.W.2d 612 (Tex.1972); Amex Warehouse Company v. Archer, 381 S.W.2d 478 (Tex.1964). The trial court had no power to change or modify its judgment once an appeal had been taken therefrom. Carrillo, 480 S.W.2d at 616.

The consent judgment of the trial court is void since that court, as shown by the record, had no jurisdiction to render the judgment. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973). In this case, Ranger, not a party to that suit, may collaterally attack the consent judgment. See Kirby Lumber Corp. v. Southern Lumber Co., 145 Tex. 151, 196 S.W.2d 387 (1946); State Mortgage Corporation v. Traylor, 120 Tex. 148, 36 S.W.2d 440 (1931). The plaintiffs in this case pleaded only for enforcement of the consent judgment. Since the relief they requested is based upon a void judgment, the portion of the trial court’s judgment which awards them that relief is also void. The court of appeals correctly dismissed the appeal as to that portion of the judgment.

Ranger, however, also had a declaratory judgment suit pending before the court. Ranger sought a declaration that it was not liable under its insurance contract with Byron McKnight. The trial court filed a conclusion of law that coverage for liability existed under the policy. While the trial court’s judgment did not deal specifically with these issues, by implication, the rendition of judgment against Ranger for the amount of the consent judgment constituted a rendition of judgment against Ranger in its declaratory judgment suit. Vance v. Wilson, 382 S.W.2d 107 (Tex.1964). The court of appeals should have considered those issues, and its failure to do so conflicts with Vance, 382 S.W.2d 107, and Tex.R.Civ.P. 451.

We therefore grant petitioners’ applications and, without hearing oral argument, affirm the court of appeals’ dismissal of the portion of the appeal based on the void consent decree and reverse the judgment of the court of appeals as to its dismissal of the remainder of the cause. Tex.R.Civ.P. 483. Accordingly, we remand to the court of appeals for consideration of the other points of error presented. See Simon v. L.D. Brinkman and Company, 459 S.W.2d 190 (Tex.1970).


text:
    HUNT CONSTRUCTION COMPANY, INC., et al., Petitioners, v. Oscar CAVAZOS, et al. d/b/a Cavazos Electric, Respondents.
    No. C-3816.
    Supreme Court of Texas.
    May 1, 1985.
    Kleberg, Dyer, Redford and Weil, Gaston M. Broyles, Jr., Leslie 0. Lynch, Corpus Christi, for petitioners.
    Canales and Barrera, Terry A. Canales, Alice, for respondents.
   PER CURIAM.

This is a suit for recovery on a contract. Oscar and Hector Cavazos contracted with Hunt Construction Company to perform electrical work on a school remodeling project in which Hunt Construction was the general contractor. The Cavazoses brought suit in the district court against Hunt Construction and its surety, Aetna Casualty and Surety Company, for the unpaid retainage on the contract and for payment for additional work performed under an alleged subsequent oral agreement. The trial court awarded judgment for the Cavazoses. In an unpublished opinion, the court of appeals affirmed the trial court judgment with a modification in the amount of interest on the judgment;, a question not before us.

Trial of this case was to a jury which found that the Cavazoses had completed their contract with Hunt Construction and that the Cavazoses provided additional labor and materials worth $14,100.00 under a subsequent oral agreement. The trial court rendered judgment for the Cavazoses for $19,089.70 plus $6363.23 attorney’s fees. In addition to the $14,100.00 supported by the jury verdict, this judgment contains an award of $3473.36 for unpaid retainage and an award of $1616.34 for balance due under the original contract. The court of appeals affirmed these additional awards as being uncontested. Both Hunt Construction and Aetna Casualty have filed applications for writ of error.

The petitioners contest the award of $1516.34 for balance due on the original contract as it was not alleged as owing in the Cavazoses’ pleading and was not submitted to the jury. Tex.R.Civ.P. 279 states in part that “all independent grounds of recovery or of defense not conclusively established under the evidence and upon which no issue is given or requested shall be deemed as waived_” The Cavazoses did not plead or pray for any balance due under the original contract other than re-tainage. Furthermore, that a balance was due was not conclusively established. Oscar Cavazos himself twice testified that all sums owed had been paid by Hunt Construction except for retainage and extras. The Cavazoses did not request a special issue on whether a balance on the original contract remained unpaid.

We therefore hold that the award of $1516.34 was contrary to Rule 279, and pursuant to Tex.R.Civ.P. 483, we grant the applications for writ of error of Hunt Construction and Aetna Casualty and Surety, and without hearing oral argument, we modify the judgments of the courts below to reduce the trial court judgment from $19,-089.70 to $17,573.36 plus $6363.23 attorney’s fees. The petitioners’ remaining points of error are overruled.


text:
    Bernard L. MIDDLETON, et al., Petitioners, v. Bonner D. MURFF, et al., Respondents.
    No. C-3840.
    Supreme Court of Texas.
    May 1, 1985.
    Rehearing Denied June 26, 1985.

      Williamson, Gardner, Hall and Wiesenthal, Anthony W. Hall, Jr., Houston, for petitioners.
    Cannon, Cannon and Reed, Joe Cannon, Groesbeck, for respondents.
   ON MOTION FOR REHEARING

PER CURIAM.

This is an appeal from a direct attack on a “consent judgment” rendered by the district court after receiving notice that certain parties, petitioners herein, no longer consented. The consent judgment was not appealed to the court of appeals. This direct attack, brought in the district court, is a motion to vacate the consent judgment and does not conform to the requirements of a bill of review. The trial court refused to set the consent judgment aside. The court of appeals affirmed this refusal by holding that the consent judgment was not void, and that therefore the requirements of a bill of review must be met to set it aside. 682 S.W.2d 672. We refused the petitioners’ application for writ of error, no reversible error, and we now overrule their motion for rehearing. We find it necessary to do so with an opinion to correct certain misconceptions created or perpetuated by the court of appeals opinion.

On rehearing, the petitioners strongly contend that the consent judgment was void and that their motion to vacate should have been granted. We find it unnecessary to decide whether the consent judgment was void or merely voidable. In either instance, a bill of review is the exclusive remedy since the time for an appeal from the consent judgment has expired. Tex.R.Civ.P. 329b(f); Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961).

The court of appeals cites Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428, 433 (1959) and Glenn W. Casey Constr. v. Citizen’s Nat’l Bank, 611 S.W.2d 695, 701 (Tex.Civ.App.—Tyler 1980, no writ) for the proposition that “[i]f a judgment rendered by a trial court is void it may be set aside by that court at any time.” 682 S.W.2d at 673. We disapprove of this statement. In McEwen and Been, this court has twice ordered a trial court to reinstate a judgment, even presuming the judgment could be shown to be void, because the direct attack against it did not qualify as a bill of review. In McEwen, this court recognized its conflict with the statement in Freeman, but stated that “[i]n Freeman, exclusiveness of remedy by bill of review as provided in Rule 329b was not presented or decided.” 345 S.W.2d at 711. Therefore, the reliance of the court of appeals on Freeman is erroneous.

In McEwen and Deen, we recognized an exception to the Rule 329b(f) requirement of a bill of review in cases where the court rendering the judgment had no “jurisdictional power” to do so. We have defined “jurisdictional power” in this sense to mean “jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs.” Deen, 508 S.W.2d at 72. The consent judgment was rendered in a suit to partition real estate, a matter within the district court’s subject matter jurisdiction. Therefore, the exception does not apply, and a bill of review is required in order to set the consent judgment aside.

The motion for rehearing is overruled.


text:
    The STATE of Texas, ex rel. Tim CURRY, Criminal District Attorney, Tarrant County, Applicant, v. Honorable L. Clifford DAVIS, Judge, Criminal District Court No. Two, Tarrant County, Respondent.
    No. 69252.
    Court of Criminal Appeals of Texas, En Banc.
    July 25, 1984.
    Tim Curry, Dist. Atty., and C. Chris Marshall, Asst. Dist. Atty., for applicant.
    Jim Voller, Austin, for respondent.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

July 20, 1983 this Court rendered an opinion in two causes brought up from the Fort Worth Court of Appeals by an appellant; we affirmed the judgments of that court which had affirmed two judgments of conviction in the trial court. Garrett v. State, 658 S.W.2d 592 (Tex.Cr.App.1983), affirming Garrett v. State, 639 S.W.2d 18 (Tex.App.—Fort Worth 1982). Motions for rehearing were denied, and mandates of this Court were issued November 4, 1983 commanding the trial court “to observe the order of our said COURT OF CRIMINAL APPEALS in this behalf and in all things to have it duly recognized, obeyed and executed.”

In the trial court the two causes are numbered 15,864 and 15,866. Mandate in each cause was received by the clerk of the trial court November 10, 1983. Garrett then filed with the clerk of this Court a motion to stay or recall mandate, praying as well for an order allowing him to remain at large on security of his appeal bond or, alternatively, of new bail to be fixed by the officer having custody of him. December 6, 1983 counsel for all parties were notified that the motion had been in all things denied.

Garrett also filed in the trial court an application to remain at large on his appeal bond during determination of a prospective petition for writ of certiorari. Not only did the trial court grant that relief on or about December 6,1983, but also there followed a flurry of motions, purported nunc pro tunc orders undertaking to “correct” sentences, notices of appeal and fresh appeal bonds and other related litigation. Soon the criminal district attorney sought and we granted leave to file an application for writs of mandamus and prohibition. We have decided that relief must be granted.

Given the statutory scheme in matters of mandate after final judgment rendered by an appellate court and of ministerial duties flowing from issuance and receipt of a mandate, except for ministerial matters, neither the judge nor the trial court had jurisdiction, power or authority to take any action other than in obedience to the mandates of this Court. State ex rel. Vance v. Hatten, 508 S.W.2d 625, 628 (Tex.Cr.App.1974) and State ex rel. Wilson v. Briggs, 171 Tex.Cr.R. 479, 351 S.W.2d 892, 894 (1961).

When the mandate of this Court has been made out by our clerk and mailed to the clerk of the trial court, Article 44.26, V.A.C.C.P., the latter is charged to file it with the papers of the cause and note it upon the docket, Article 44.27, id. Then the clerk of the trial court is mandated by statute to do several things. The most important is “forthwith [to] issue a capias for the arrest of the defendant for the execution of the sentence of the court, which shall ... command the sheriff to arrest and take into his custody the defendant and place him in jail and therein keep him until delivered to the proper authorities, as directed by said sentence.” Article 44.05, id.; and, similarly, if defendant has been released on bail pending disposition of appeal, the clerk of the trial court shall issue a commitment against the defendant, Article 42.09, § 2, id. The sheriff, in the case of a capias, shall execute it as directed and notify the clerk of the trial court and of the appellate court that issued its mandate, Article 44.05, supra; the officer who executes a commitment shall endorse thereon the date defendant is taken into custody for the sentence thus begins to run, Article 42.09, § 2, supra.

Article 44.06, id., provides that upon execution and return of a capias “no bail shall be taken ...” Although such a prohibition is not expressly stated with reference to a commitment, since both serve essentially the same function, see Ex parte Priest, 162 Tex.Cr.R. 398, 286 S.W.2d 164, cert. denied 351 U.S. 910, 76 S.Ct. 696, 100 L.Ed. 1444 (1956), we take it that the Legislature did not intend to allow release on bail should a clerk of the trial court opt to issue a commitment rather than a capias. Article 44.04, V.A.C.C.P., clearly contemplates that bail may be fixed after conviction in a trial court and that security given by an appellant is effective pending final determination of the appeal, as does Article 17.09, id. However, § (f) also insists that neither appellant nor sureties are released from liability until he is “placed in the custody of the sheriff,” without regard to the title of the paper executed to put him there. We hold that bail may not be taken from one who is subject to being placed in custody upon execution of a capias or commitment issued in a cause pursuant to a mandate of affirmance from this Court.

Issuing and executing a capias or commitment after mandate are purely ministerial acts accomplished by officers of a trial court “only to see that the judgment of this court [is] carried out,” State ex rel. Vance v. Hatten, 508 S.W.2d 625 (Tex.Cr.App.1974); see also Houlihan v. State, 579 S.W.2d 213, 217 (Tex.Cr.App.1979).

We are informed by the record that upon receipt of our mandate the clerk of the trial court issued a capias after mandate in each cause; January 10, 1984 a deputy sheriff executed them while Garrett was in the trial court attending a hearing convened by respondent judge in order to fix an amount bond on appeal by Garrett from nunc pro tunc orders purporting to correct sentences in Cause No. 15,864 and Cause No. 15,866, respectively. However, detention of Garrett was momentary at best, for he was immediately released on appeal bond approved by the trial judge and filed among the papers of each cause. Thus, as in State ex rel. Wilson v. Briggs, supra:

“In this manner the Respondent has done ... indirectly what he has no authority to do directly; that is, to stay the effectiveness of the decisions and mandates of this Court.”

Id., at 895.

We conclude that it is necessary in order to enforce the jurisdiction of this Court that Respondent be ordered and directed to cause the clerk of his court to issue, and an appropriate peace officer to execute a capi-as or commitment against Curtis Garrett by arresting and taking him into custody and placing him in jail and therein keep him until delivered to proper authorities, as directed by the sentences imposed in these causes. State ex rel. Vance v. Hatten, supra, at 629.

However, accepting at full value statements made by Respondent during the January 10 hearing that this “matter needs to be resolved and I am trying to facilitate the resolution of it,” we assume that he will immediately effectuate that which this Court has ordered and directed. Writ of mandamus will issue only if he refuses to do so.

All other relief sought by applicant is denied, but without prejudice to a fresh application seeking all or part of such relief as may be deemed necessary to enforce fully the mandates of this Court issued by our clerk pursuant to the opinion and judgments in Garrett v. State, supra. A motion for rehearing will not be entertained.

It is so ordered.