author: COHEN, Justice.

text:
    Christopher M. LOVE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 01-84-0243-CR, 01-84-0244-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 28, 1985.
    Clinard J. Hanby, Haynes & Fullenweider, Houston, for appellant.

      John B. Holmes, Jr., Harris County Dist. Atty., Winston E. Cochran, Jr., Dan Kroeker, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and COHEN and SMITH, JJ.
   OPINION

COHEN, Justice.

The appellant pleaded guilty to possession with intent to deliver a controlled substance in cause no. 392,502, and the Court assessed his punishment at 12 years imprisonment. In addition, the Court revoked his probation in cause no. 380,570 and assessed punishment of 10 years. The probation, for the offense of delivery of a controlled substance, was revoked solely because of the offense committed in cause no. 392,502.

He asserts that the controlled substance used against him was obtained during a warrantless arrest and search which were illegal because Pasadena city police lacked authority to arrest and search outside of Pasadena, in Houston. Thus, we must decide whether city officers have countywide or statewide power to make warrant-less arrests.

A. The Facts

On November 14, 1983, Pasadena Officer Williams learned from a reliable informant that the appellant would be buying and selling mandrax tablets that night. The informant, who had talked with the appellant in the preceding 24 hours, stated where the appellant resided and identified the car that he drove. Officer Williams knew these statements were accurate, based on other information he had regarding the appellant. During the preceding year, Williams had heard from several sources that the appellant was dealing in narcotics. Williams ordered Officers Stewart and Standley to watch the appellant’s Houston residence. Stewart saw the appellant and a female leave the residence and, as the informant had stated, they drove a blue 1982 Chevrolet Camaro hatchback automobile registered to the female. They went to a restaurant, stayed one hour and then drove to another house in Houston, followed by the officers who parked 200 yards away and watched with binoculars. The appellant approached a man standing in the yard, whereupon a tan car pulled up. The man in the yard walked to it, handed the driver money, and the driver handed him a large Fiesta grocery store bag. The tan car drove away, and the man put the grocery bag in a truck parked in his driveway. He talked to the appellant and then moved the grocery sack from the truck to the rear of the appellant’s Camaro. The appellant then drove back to his residence, followed by at least three officers, and parked his car outside. He and the female entered the residence, leaving the grocery bag and its contents in the parked Camaro. Officer Williams believed that the appellant kept drugs in his car on occasion, because another informant, named in testimony, had admitted stealing 6,000 mandrax tablets from the appellant’s vehicle.

One officer then left to return to Pasadena and obtain a search warrant for the parked car; however, the appellant and the female soon thereafter left the house and drove off, whereupon this officer returned in order to help pursue and arrest them. The appellant’s car was heading in the general direction of the home of a suspected drug purchaser, who was a regular customer of the appellant according to other informants, when four Pasadena police in three cars stopped the appellant, arrested him and the female, searched the car, and found a Fiesta grocery store bag filled with 3,000 mandrax tablets. Officer Stewart had seen that the bag was a Fiesta bag before the arrest, and Officer Williams testified that Fiesta grocery store bags were often used to carry pills, and that he had made four arrests where the drug was contained in a Fiesta bag.

All of the surveillance, as well as the arrest and the automobile search, occurred inside Harris County and inside the Houston city limits. The appellant’s residence, the scene of a great deal of surveillance, was 5-6 miles outside the city limits of Pasadena. The appellant was never in Pasadena on November 14; nevertheless, the Pasadena officers were in Houston solely to pursue this investigation. No officers from the city of Houston, Harris County, or any other authority were involved. The officers testified that the appellant, who drove the Camaro at all times, was not stopped because he committed any traffic offense, but solely for the purpose of searching the car. The Pasadena officers had no search warrant and no arrest warrant, and they were aware that they were outside their city. In short, the entire narcotics division of the City of Pasadena Police Department was knowingly operating 5 to 6 miles outside of Pasadena, in Houston, for a period of 3 to 4 hours, without a warrant, without assistance from City of Houston, Harris County or State peace officers, while not in hot pursuit, and solely in order to investigate the appellant.

B. The Common-Law Rule

Under the common law, a city police officer’s power to arrest, with or without a warrant, ends at the city limits. Buse v. State, 435 S.W.2d 530 (Tex.Crim.App.1968); Irwin v. State, 147 Tex.Cr.R. 6, 177 S.W.2d 970 (1944); Henson v. State, 120 Tex.Cr.R. 176, 49 S.W.2d 463 (1932); Jones v. State, 26 Tex.App. 1, 9 S.W. 53 (1888); Ledbetter v. State, 23 Tex.App. 247, 5 S.W. 226 (1887). If the Code of Criminal Procedure, which generally governs war-rantless arrests (see Chapter 14), fails to provide a rule of procedure, the rules of the common law apply and govern. Tex. Code Crim.P.Ann. art. 1.27 (Vernon 1977); see also Tex.Rev.Civ.Stat.Ann. art. 1 (Vernon 1963).

There are exceptions to the common-law rule that a city officer cannot arrest without warrant outside his city; however, they do not apply to this case. These officers were not engaged in “hot pursuit,” see Minor v. State, 153 Tex.Cr.R. 242, 219 S.W.2d 467 (1949), nor did they observe the appellant commit any traffic offense within the statutory exceptions to the common-law rule. See Christopher v. State, 639 S.W.2d 932, 937 (Tex.Crim.App.1982) (op. on reh’g); Hurley v. State, 155 Tex.Cr.R. 315, 234 S.W.2d 1006 (1950).

C. The Lopez Decision

In Lopez v. State, 652 S.W.2d 512 (Tex.App.—Houston [1st Dist.] 1983), a panel of this Court held that city police officers had general countywide authority to make war-rantless arrests. Lopez was reversed on other grounds by the Court of Criminal Appeals. Lopez v. State, No. 509-83, March 28, 1984 (State’s motion for rehearing pending).

The appellant asks that we reconsider our holding in Lopez, which was based on Tex.Rev.Civ.Stat.Ann. arts. 998 and 999 (Vernon Supp.1984). Article 998 provides that city police officers have the same authority as city marshals, and article 999 provides that city marshals have the same authority as sheriffs. Since sheriffs have countywide authority to make warrantless arrests, Tex.Code Crim.P.Ann. art. 2.17 (Vernon 1977), we reasoned that city marshals and city police officers also had countywide authority to make warrantless arrests. Lopez did not rely on exceptions to the common-law rule. Rather, it held that arts. 998 and 999 abrogated the common-law rule and permitted city officers to arrest countywide without warrant for any offense.

Irwin v. State, supra, which applied the common-law rule limiting a city officer’s warrantless arrest power to the city limits, was distinguished in Lopez on the basis that it was decided in 1944, before the 1967 “enactment” of art. 999. Lopez, 652 S.W.2d at 513. This was error because article 999 was not enacted in 1967.

Article 999 was amended in 1967; it was enacted in 1875. See Acts 1875, p. 122; Tex.Rev.Civ.Stat.Ann. art. 999 (Vernon 1963). The 1911 enactment contained language identical to the present version, providing that, “in the prevention and suppression of crime and arrest of offenders, [the city marshal] shall have, possess, and execute like power, authority and jurisdiction as the sheriff.” See “Historical Note” following art. 999 (Vernon 1963). This language, which was contained both in the 1875 enactment and in the 1967 amendment, was apparently contained in art. 999 at all times from 1876 to the present time.

Similarly, art. 998 was originally enacted in 1907 and provided that, “such officers [city police] shall have like powers, rights, and authority as are by said title vested in city marshals.” Acts 1907, p. 299. The 1967 amendment added only the words “and jurisdiction” after the word “authority” in this sentence.

Thus, both articles 998 and 999 were enacted long before the 1944 Irwin decision. In fact, article 999 was cited in Weeks v. State, 132 Tex.Cr.R. 524, 106 S.W.2d 275, 276 (1937), where the Court wrote, “Article 999, R.C.S. 1925, seems to limit the legal authority of peace officers to their own bailiwick.” This statement was criticized in Minor v. State, 219 S.W.2d at 471; however, despite the criticism, Weeks in 1937, Irwin in 1944, and Buse in 1968, all reversed convictions because city police officers lacked authority to arrest outside their city limits. More recently, in Rozell v. State, 662 S.W.2d 634, 636-37 (Tex.App.—Houston [14th Dist.] 1983, no pet.), the Court affirmed a conviction, but recognized the common-law limitation on a city officer’s power, citing Irwin as authority. These decisions all recognized and applied the common-law rule, despite the fact that statutes very similar or identical to the present articles 998 and 999 were then in effect. None held, as we did in Lopez, that articles 998 and 999 gave city officers general countywide warrantless arrest powers.

The Texas rule prohibiting warrantless arrests and the reasons for that rule were stated by the Supreme Court in Heath v. Boyd, 141 Tex. 569, 175 S.W.2d 214 (1943):

Art. 1, sec. 9, of the Constitution of Texas, guarantees that the people shall be secure in their persons from all unreasonable seizures. Therefore, despite obi-ter dicta expressions to the contrary in a few cases, our courts, both civil and criminal, have consistently said that the arrest of a citizen without warrant is an unreasonable seizure of his person, unless it is expressly authorized by statute .... [T]he subject is thus exclusively regulated by the constitution and the statutes of this State.... This rule has two objects, namely (1) to protect the right of the citizen to his liberty, under the presumption of his innocence of all crime; and (2) to inform peace officers as to the limits of the authority with which they are invested.... If the situation claimed to authorize an arrest without warrant does not come squarely within some [statutory exception], the authority does not exist, because the statutes are strictly construed.

Id. 175 S.W.2d at 215-16 (emphasis added). Accord Gant v. State, 649 S.W.2d 30, 32 (Tex.Crim.App.1983). The Court of Criminal Appeals quoted with approval from Heath v. Boyd in Honeycutt v. State, 499 S.W.2d 662, 664 n. 2 (Tex.Crim.App.1973).

We conclude that neither art. 998 nor art. 999 gives city police general countywide authority to make warrantless arrests, and that the panel decision in Lopez, holding to the contrary, is in error. Articles 998 and 999 provide that city marshals, city police, and sheriffs have “like powers, rights, authority and jurisdiction.” In this context, “jurisdiction” refers to what the officer may do, not where he may do it. Buse, 435 S.W.2d 530; Minor, 219 S.W.2d at 470 (Beauchamp, J., concurring); Irwin, 177 S.W.2d 970; Weeks, 106 S.W.2d 275; Rozell, 662 S.W.2d 634.

D. Newbum v. Durham — A Rejected Rule

We are aware that the Texas Supreme Court, in answering a certified question, has held directly opposite to our conclusion, at least in felony arrests. Newburn v. Durham, 88 Tex. 288, 31 S.W. 195 (1895). However, the Court of Criminal Appeals held the opposite of Newburn in Weeks, a misdemeanor, and ignored Newburn in Irwin, a felony, and in Buse, a misdemeanor. All three decisions reversed convictions, the opposite of the result indicated in New-burn.

Civil cases such as Vernon v. City of Dallas, 638 S.W.2d 5 (Tex.App.—Dallas 1982, writ ref'd n.r.e.) have also ignored Newburn v. Durham and reached the opposite result. In Vernon, a city of Dallas police officer sought worker’s compensation benefits after being hurt outside the city of Dallas. The Court cited articles 998 and 999 as authority for limiting a city officer to his city. The Court wrote:

We reject plaintiff’s contention that arts. 6.05 and 6.06 [Code of Criminal Procedure] impliedly authorized and required him to act anywhere in the county. In our view, those provisions are expressly limited by art. 2.13 of the Code of Criminal Procedure, which states: ‘[I]t is the duty of every peace officer to preserve the peace within his jurisdiction ’ (court’s emphasis). Plaintiff is a ‘peace officer’ by virtue of art. 2.12(3) of the Code of Criminal Procedure and his ‘jurisdiction’ is the city. See Tex.Rev. Civ.Stat.Ann. arts. 998, 999 (Vernon 1963-1981). We believe it would be an unreasonable construction of the statutes to hold, as plaintiff urges, that while a peace officer is expressly authorized to act only in his jurisdiction, he may by implication be authorized, if not required, to act over a much larger territory. Surely where the legislature has been explicit with the limited grant of authority in art. 2.13, it would not leave this much broader grant to implication.

638 S.W.2d at 8-9 (emphasis added).

The rejection of the rule in Newburn is shown in Minor v. State. In Minor, a felony, the majority opinion by three judges cited Newburn, but declined to apply it, relying instead on the narrow “hot pursuit” exception to affirm the conviction. The other two judges expressly disapproved Newburn’s construction of art. 999. Minor recognized the general rule that a city policeman cannot make a warrantless arrest outside his city. The Minor court would not have needed to rely on the then controversial “hot pursuit” exception if it had found broader authority in arts. 998, 999, or elsewhere, expanding a city police officer’s territorial authority to the county line. Judge Hawkins, dissenting, denied that any such authority arose from art. 999, which he would have construed “to mean that within the limits of the municipality the authority of the city officers was the same as that of the sheriff in his county.” 219 S.W.2d at 471 (emphasis added). Judge Beauchamp, concurring, wrote that an officer in “hot pursuit” could arrest without warrant anywhere in Texas, but that, “The statute [art. 999] giving the policeman a right similar to that of the sheriff must be limited to the confines of the city boundary lines. He cannot go beyond the city limits to initiate the arrest.” 219 S.W.2d at 471 (emphasis added). The three judges in the majority of the five-judge Court of Criminal Appeals concluded, “We hold that the city peace officer had the same power as the sheriff relative to his jurisdiction_”. (emphasis added).

Plainly, the Court of Criminal Appeals has not followed the Supreme Court decision in Newburn v. Durham. Given several opportunities, that Court has declined to hold that arts. 998 and 999 give city officers the same county-wide warrantless arrest powers in felony offenses as sheriffs have. Irwin; Minor; both supra. The Court of Criminal Appeals has never cited Newburn, except in Minor, where it was not followed; the Supreme Court has never cited Newburn; no other court has cited Newburn, except the Court of Civil Appeals in the appeal of the same case, according to Shepard’s Texas Citations.

E. Comparison of Articles 998 and 999 With Statutes Giving Statewide Powers

Henson v. State, 120 Tex.Cr.R. 176, 49 S.W.2d 463 (1932), decided the related issue of whether a sheriff had authority to make warrantless arrests outside his county. In Henson, the Sheriff of Jones County received information that Henson would be coming into Jones County driving an automobile loaded with whiskey. The Sheriff drove into Haskell County to await Henson’s approach. Henson was arrested in Haskell County and a search of his car turned up eight gallons of whiskey, for which he was convicted of transporting intoxicating liquor, a felony. The Jones County Sheriffs deputies arrested and searched Henson without a warrant. It was established that Henson did not consent to the search; that the officers could not see or detect any whiskey in his car until after the search; that the Jones County Sheriff and deputies held no commission as officers of Haskell County, where the arrest and search were made; and that the Jones County Sheriff and his deputies were the only peace officers present at the arrest and search.

The Court quoted provisions of the Code of Criminal Procedure then in effect which were identical in pertinent respects to arts. 2.17, 2.12, 2.18, and 15.06 of our present Code. These provided that, “Each sheriff shall be a conservator of the peace in his county ... ”, and, “It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose he shall use all lawful means.... He shall give notice to some magistrate of all offenses committed within his jurisdiction _” 49 S.W.2d at 464 (emphasis added).

The Court compared art. 6570 [now Tex. Rev.Civ.Stat.Ann. art. 4413(11)] with Tex. Code Crim.P.Ann. art. 223 (now art. 15.06). Article 223 generally authorized Texas peace officers to execute a warrant in any county in Texas, whereas art. 6570 [now 4413(11) ] authorized Texas Rangers to make arrests in any county in Texas.

The general statute governing peace officers, arR 223, then, as now, provided:

A warrant of arrest, issued by any county or district clerk, or by any magistrate (except county commissioners or commissioners’ courts, mayors or recorders of an incorporated city or town), shall extend to any part of the state; and any peace officer to whom said warrant is directed, or into whose hands the same has been transferred, shall be authorized to execute the same in any county in this state.

Quoted in Henson v. State, 49 S.W.2d at 465; now codified as Tex.Code Crim.P.Ann. 15.06.

The broader statute, art. 6570, was the one describing the authority of Texas Rangers, which provided:

They shall have authority to make arrests, and to execute process in criminal cases, and in such cases shall be governed by the laws regulating and defining the powers and duties of sheriffs when in discharge of similar duties; except that they shall have the power and shall be authorized to make arrests and to execute all process in criminal cases in any county in the state.

Quoted in Henson v. State, 49 S.W.2d at 465.

The Court then stated and underlined emphatically the following:

The opinion is expressed that the statutes quoted and those to which reference has been made evidence the intention of the Legislature to confine the jurisdiction of the sheriff to his county, except in so far as the authority to execute warrants of arrest in any county of the state is conferred by art. 223[15.06], C.C.P. The sheriff is a conservator of the peace in his county. It is his duty to preserve the peace within his jurisdiction. In performing this duty, he may, in meeting with resistance in the discharge of any duty imposed upon him by law, summon citizens of his county to overcome the resistance. The same statutes respecting the authority to make arrests and execute process in criminal cases govern sheriffs and state rangers, except that state rangers have the power to make arrests in any county in the state. Article 223[15.06], C.C.P., authorizing the execution of a warrant of arrest by a sheriff under the conditions stated in the article in any county in the state, is not deemed to have the effect to extend generally the jurisdiction of a sheriff beyond the borders of his county. In the absence of a warrant of arrest issued under the provisions of article 223, ... a sheriff as such is not authorized to make an arrest outside his county.

49 S.W.2d at 465 (emphasis in original).

Henson dealt with a sheriffs warrant-less arrest outside his county, whereas the case at bar deals with a city officer’s arrest outside his city, but within his county. Nevertheless, the Court of Criminal Appeals apparently viewed the difference as insignificant because 12 years later, in Irwin, Henson was cited as authority limiting a city officer’s warrantless arrest and search powers to his city limits.

As the Court observed in Henson, when the legislature intended to give statewide warrantless arrest powers to Texas Rangers, it did so with great clarity, authorizing them “to make arrests and to execute all process in criminal cases in any county in the state.” Presumably, the language authorizing Rangers “to make arrests” means warrantless arrests because arrests under warrant would be authorized by the language permitting them to “execute all process in criminal cases.”

The language in the Texas Ranger statute, art. 4413(11), is much broader than language in art. 998. Article 998 provides:

[City police] officers shall have like powers, rights, authority and jurisdiction as are by said title vested in city marshals. Such police officers may serve all process issuing out of the corporation court anywhere in the county in which the city, town or village is situated. If the city, town or village is situated in more than one county, such officers may serve with process throughout those counties. (emphasis added)

Article 998, unlike the Texas Ranger statute, does not give city officers “power to make arrests ... in criminal cases” throughout their county. It is a limited grant of power.

Neither does art. 999 expressly empower city marshals to arrest without warrant throughout the county in language as clear and specific as art. 4413(11) empowers Texas Rangers. Article 999 provides in pertinent part:

For the purpose of executing all writs and process issued from the corporation court, the jurisdiction of the marshal extends to the boundaries of the county in which the corporation court is situated. If the corporation court is in a city which is situated in more than one county, the jurisdiction of the marshal extends to all those counties. He shall have like power, with the sheriff of the county, to execute warrants; he shall be active in quelling riots, disorder and disturbance of the peace within the city limits and shall take into custody all persons so offending against the peace of the city and shall have authority to take suitable and sufficient bail for the appearance before the corporation court of any person charged with an offense against the ordinance or laws of the city. It shall be his duty to arrest, without warrant, all violators of the public peace, and all who obstruct or interfere with him in the execution of the duties of his office or who shall be guilty of any disorderly conduct or disturbance whatever; to prevent a breach of peace or preserve quiet and good order, he shall have authority to close any theatre, ballroom or other place or building of public resort. In the prevention and suppression of crime and arrest of offenders, he shall have, possess and execute like power, authority, and jurisdiction as the sheriff, (emphasis added)

The first sentence of art. 999 uses very clear language in giving the city marshal authority reaching “to the boundaries of the county” for the sole purpose of executing corporation court process. However, the other parts of the statute, which specifically mention the marshal’s territorial authority, limit it to the city’s boundaries, except for serving warrants and process. For example, “he shall be active in quelling riots, disorder and disturbances of the peace within the city limits,” and shall arrest all persons offending “against the peace of the city.” He can take bail only “for the appearance before the corporation court of any person charged with an offense against the ordinance or laws of the city.” The important sentence specifically authorizing “arrest without warrant” immediately follows the listing of other powers which are confined to the city limits, and it says nothing about where the city marshal’s warrantless arrest power may be exercised.

The language in article 999, which either limits the city marshal to his city boundaries, or is silent about where he may operate, contrasts markedly with the first sentence extending the city marshal’s power to serve process “to the boundaries of the county” or counties in which the city sits. The legislature used clear and specific language when it extended the city marshal’s territorial powers to the county line, yet it did so only “for the purpose of executing all writs and process issued from the corporation court.”

Article 999’s limiting language also differs from the clear language the legislature used in article 4413(11) giving statewide warrantless arrest powers to Texas Rangers. It is significantly different from Tex.Code Crim.P.Ann. art. 1.23, which provides that all district and appellate court judges “shall, by virtue of their offices, be conservators of the peace throughout the state.” (emphasis added). See also Tex. Const, art. 5, sec. 12. (“All judges of courts of this state, by nature of their office, [shall] be conservators of the peace throughout the state.”) It differs from Tex.Rev.Civ.Stat.Ann. art. 6889 (Vernon 1960) which provides that, “Every constable may execute any process ... throughout his county and elsewhere.... ” Indeed, art. 999 is completely silent about where the warrantless arrest power may be exercised.

In 1967, articles 998 and 999 were amended, and the amendments indicate what the legislature intended to be the geographic scope of a city police officer’s authority. The following was added to article 998:

Such police officers may serve all process issuing out of a corporation court anywhere in the county in which the city, town or village is situated. If the city, town or village is situated in more than one county, such officers may serve the process throughout those counties.

Similarly, the following was added to article 999:

For the purpose of executing all writs and process issued from the corporation court, the jurisdiction of the marshal extends to the boundaries of the county in which the corporation court is situated.

In construing statutes, courts will not presume that the legislature has done a useless act. Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 551 (Tex.1981). If city police officers and the city marshal already had general countywide jurisdiction prior to the above-quoted 1967 amendments, the amendments added nothing to their existing authority and served no purpose whatsoever. If, however, they did not already have general countywide jurisdiction, the amendments certainly did not grant it to them. If the legislature had meant for city police and marshals to have general countywide authority, it would have clearly said so, as it has frequently done in other statutes, and it would not have given these officers countywide jurisdiction limited merely to executing process from the corporation courts.

The legislature’s 1973 amendments to Tex.Rev.Civ.Stat.Ann. art. 999b, which added sec. 2a, shed further light on the legislature’s intention. Ch. 587, sec. 1, 1973 (Tex. Gen.Laws 1626). This amendment permits neighboring counties or municipalities to enter agreements to cooperate “in the investigation of criminal activity and enforcement of the laws of this state.” It further provides:

A law enforcement officer employed by a county or municipality covered by an agreement authorized by this section may make arrests outside the county or municipality in which he is employed, but within the area covered by the agreement, provided however, that the law enforcement agencies within such county or municipality shall be notified of such arrest without delay....
Peace officers employed by counties or municipalities entering into such agreements shall have only such additional investigative authority throughout the region as may be set forth in the agreement.

Id. (emphasis added). This language indicates the legislature’s understanding that a city police officer’s law enforcement activities are normally confined to his city. The statute gives city officers “only such additional investigative authority” outside their city as is provided in the inter-governmental agreement. If city police officers already had general county-wide authority, it would have been unnecessary to pass a statute authorizing local governments to grant it. There is no evidence in this case of any such agreement between the cities of Houston and Pasadena.

We conclude that the legislature, which has the power to grant countywide war-rantless arrest powers to city police, Hurley, 234 S.W.2d at 1008, has not done so in arts. 998 and 999. We note that the legislature has met and adjourned many times without amending arts. 998 or 999 in pertinent respects, despite its presumed knowledge of decisions like Weeks, Minor, Buse, and Irwin, supra, which reversed convictions because of arrests by city officers outside their cities, and declined to follow the Supreme Court’s decision in Newburn v. Durham.

F. Statewide Warrantless Arrest Powers for City Police

We now decide whether Pasadena city officers have statewide warrantless arrest powers. It has been suggested that the Pasadena police had authority to arrest in Houston, as a result of Tex.Code Crim.P. Ann. art. 14.01(b) (Vernon 1977) which has created, according to some authorities, a statewide warrantless arrest power for all peace officers. Article 14.01(b) provides: “A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”

In Buse v. State, the Court applied the common law rule and reversed a conviction, but stated in dicta that art. 14.01(b), which was not in effect at the time of the offense therein, gave all peace officers a statewide warrantless arrest power. 435 S.W.2d at 532. The same was stated in Green v. State, 490 S.W.2d 826 (Tex.Crim.App.1973), a driving while intoxicated case, although the statement was, again, unnecessary to the decision because the arresting officer, while inside his city limits, observed a traffic offense under either art. 6701d or former Penal Code art. 803. Violations of traffic laws within these two statutes are specific exceptions to the common-law rule, without regard to art. 14.01(b). Christopher, 639 S.W.2d at 937; Hurley, 234 S.W.2d at 1006.

The authority of the dicta in Buse and Green, regarding art. 14.01(b) is questionable in light of the recent Court of Criminal Appeals decision in Christopher. Christopher held that no statewide warrantless arrest power exists under art. 14.01(b) for game wardens, deputy constables, and municipal park patrolmen. In so doing, it impliedly recognized that the common-law rule has not been abrogated by art. 14.-01(b), at least for these three categories of peace officers. In affirming the conviction, the Court refused to rely on art. 14.01(b). Instead, it relied on art. 6701d, sec. 153, which provides:

Any peace officer is authorized to arrest without a warrant any person found committing a violation of this article.

The Court held that this language, unlike art. 14.01(b), created a statewide warrant-less arrest power for all peace officers, limited solely to motor vehicle offenses covered by art. 6701d. Four judges dissented even from that limited holding, arguing that art. 6701d, sec. 153, did not grant statewide warrantless arrest power to all peace officers. 639 S.W.2d at 937-41.

Christopher appears to have silently overruled the obiter dicta in Green and Buse, supra, by holding that no general statewide warrantless power exists under art. 14.01(b) for deputy constables and municipal park patrolmen. 639 S.W.2d at 937. We observe that the same statute declaring deputy constables and municipal park patrolmen to be peace officers declares city police to be peace officers. See Tex.Code Crim.P.Ann. art. 2.12(2), (3). We perceive no difference in the authority granted to city police, deputy constables, and municipal park patrolmen under art. 14.01(b).

We further note that art. 14.01(b) says nothing about where the arrest power may be exercised. This is in contrast to Tex. Rev.Civ.Stat.Ann. arts. 998, 999, 4413(11), 6889; Tex.Code Crim.P.Ann. arts. 1.23, 2.13, 2.17, 15.06; and Tex. Const, art. 5, sec. 12, which establish both general and specific territorial limitations.

In deciding whether art. 14.01(b) gives statewide powers, we construe it strictly because it is in derogation of both the common law rule and the Texas Constitution. Honeycutt, 499 S.W.2d 662; Irwin, 177 S.W.2d 970.

Our courts, both civil and criminal, have consistently said that the arrest of a citizen without warrant is an unreasonable seizure of his person, unless it is expressly authorized by statute.... If the situation claimed to authorize an arrest without warrant does not come squarely within some [statutory exception], the authority does not exist, because the statutes are strictly construed.

Heath v. Boyd, 175 S.W.2d at 215. We conclude that art. 14.01(b) does not expand the warrantless arrest power of a city police officer beyond city limits. Christopher v. State, 639 S.W.2d at 937.

Our holding that city police officers may not arrest outside their cities without warrant, unless in hot pursuit or with specific statutory authority, is based on Texas constitutional law, Texas statutory law, and Texas common law, not on federal constitutional law. These authorities limit warrantless arrests more strictly than does the United States Constitution. See Milton v. State, 549 S.W.2d 190, 192 (Tex.Crim.App.1977). This is a “plain statement” within the meaning of Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201 (1983).

It may be argued that there is always a serious shortage of peace officers and that the shortage can be partially alleviated by abolishing territorial limitations on their power and by granting them countywide or statewide warrantless arrest authority. On the other hand, it may be argued that the common-law rule is needed in order to preserve local civilian control of peace officers, who should not be allowed to operate in cities or counties whose elected leaders have no control over their selection, training, discipline, supervision, and performance. These are difficult issues which are, and should be, controversial, but they are for the legislature to decide, not us. The legislature may, by simple majority vote, grant broad statewide warrantless arrest powers to all peace ‘officers, thus abrogating both the common-law rule keeping city police in their cities and the limitations of Chapter 14 on warrantless arrests. Hurley, 234 S.W.2d at 1008. So far, however, it has not done so.

The first ground of error is sustained.

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

      . The city of Pasadena is in Harris County. The arrest occurred within the Houston city limits, a location also in Harris County. See Fort v. State, 615 S.W.2d 738 (Tex.Crim.App.1981).

      . Art. 6570 is now codified, largely verbatim, as Tex.Rev.Civ.Stat.Ann. art. 4413(11), which grants statewide powers to Rangers in addition to, and subsequent to, granting them “all the powers of peace officers.” The same powers are granted to officers of the Texas Highway Patrol. See art. 4413(12).

      . Guidance on this subject, from either the Court of Criminal Appeals or the legislature, would enable courts and peace officers to better understand the geographic limits of every Texas peace officer to preserve the peace "within his jurisdiction.” Although Presiding Judge Hawkins of the Court of Criminal Appeals sought such guidance from the legislature in 1949, the need persists. Minor v. State, 219 S.W.2d at 471 (Hawkins, P.J., dissenting).


source: Caselaw Access Project

author: STEPHENS, Justice.

license: Public Domain

text:
    Gene Dewayne SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-01501-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 28, 1985.
    John H. Hagler, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Jeffrey B. Keck, Asst. Dist. Atty., Dallas, for ap-pellee.
    Before STEPHENS, ALLEN and McCLUNG, JJ.
   STEPHENS, Justice.

Appellant appeals from a conviction for burglary of a habitation, enhanced by a prior felony conviction. Punishment was assessed by the court at forty years confinement. Appellant contends in his sole ground of error that the evidence was insufficient to support a true finding of the enhancement paragraph. We agree. Consequently, we remand the case to the trial court for resentencing only.

The indictment in the instant cause alleged burglary with intent to commit rape. The charge was enhanced with a prior felony conviction for attempted aggravated rape. The appellant elected to have the trial court assess punishment; upon return of the guilty verdict, the jury was discharged. The trial court then recessed for approximately two weeks so that a pre-sen-tence investigative report could be prepared.

When the Court reconvened for sentencing, the following transpired:

DECEMBER 16, 1983
THE COURT: What was that offense in Sherman?
THE DEFENDANT: Burglary of a habitation.
THE COURT: Burglary of a habitation?
THE DEFENDANT: Yes, sir.
THE COURT: Was it tried—
THE DEFENDANT: Yes, sir.
THE COURT: —in front of a jury?
THE DEFENDANT: Yes, sir.
THE COURT: And you had a court-appointed lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: That case is on appeal?
THE DEFENDANT: Yes, sir.
THE COURT: How much time did they give you up there?
THE DEFENDANT: Five.
[DEFENSE COUNSEL]: He told me this was for something that happened in ’79 before he went down on the case he went for. They bench-warranted him back from TDC to go to trial on the ’79 case which happened before he even got his first conviction.
He says that the lawyer up there tells him it’s almost certainly going to be reversed, because there were some problems with the indictment that they charged him with one thing and tried him on something else.
THE DEFENDANT: There were quite a few errors in it.
[DEFENSE COUNSEL]: Quite a few technical errors in the procedure, so—
THE COURT: What’s your back time? How long have you been in jail?
THE DEFENDANT: I was arrested July 25th.
THE COURT: July 25th?
THE DEFENDANT: Yes, sir.
THE COURT: All right. Dewayne, I have discussed this case with your lawyer and read your file, talked to the •prosecutor about the case. The Court feels because of your extensive history I will sentence you to 40 years in the penitentiary. Your sentence will begin the 20th of July, 40 years. [Emphasis added].
(Whereupon the proceedings in this cause were concluded.)

Appellant contends that because the trial judge commented that the sentence was based on his criminal history, reversal is required since no evidence was ever offered regarding the enhancement allegation. No plea was ever entered regarding enhancement nor was the indictment alleging enhancement read in open court. Nonetheless, the judgment recites that:

“all of the allegations set out in the second paragraph of the indictment charging a final conviction for the offense of ATTEMPTED AGGRAVATED RAPE are true, as found by the Court, and that he be punishment [sic] by confinement in the Texas Department of Corrections as a 1st degree felony for 40 years.”

We begin our analysis by noting that the failure to read the enhancement portion of the indictment or receiving his plea are not required by either TEX.CODE CRIM. PROC.ANN. art. 36.01 or 37.07 (Vernon Supp.1984). However, in Reed v. State, 500 S.W.2d 497, 499 (1973), Presiding Judge Onion observed “such is the better and accepted practice.”

In Ex parte Augusta, 639 S.W.2d 481, 485 (1982), the Court held that during the punishment stage of a trial in which an enhancement allegation is included the State must prove its case against a defendant. Hence, the State has the burden of proving “the defendant on trial is in fact the same defendant named in ... the alleged felony convictions.” 639 S.W.2d at 484. Furthermore, Judge Teague noted: "Failure to prove all of these facts will nullify the punishment hearing_ If the hearing was before the trial court, and there was error, then the defendant will only be entitled to a new punishment hearing.” 639 S.W.2d at 484 (emphasis added).

In the instant situation there was no evidence presented regarding the enhancement paragraph. Therefore, we hold the evidence insufficient to support the judgment regarding enhancement only. We now must determine whether reformation is possible or whether retrial on punishment is required.

In Augusta the Court held the double jeopardy protection of the Fifth Amendment to the United States Constitution prohibited relitigation of enhancement allegations reversed for insufficiency of evidence. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). Therefore, the enhancement allegation must not be considered viable for resentencing.

We recognize that the forty years assessed as punishment was well within the time allowed for a first degree felony conviction. TEX.PENAL CODE ANN. sec. 12.32 (Vernon 1984). However, the affirmative finding in the judgment regarding the enhancement paragraph contained in the indictment along with the comments made at trial casts doubt on whether the sentence was made only upon the burglary conviction. We therefore remand the cause to the trial court for resentencing only, in accordance with this opinion.


author: SPARLING, Justice. WHITHAM, Justice,

text:
    H.V. TYGRETT, Jr., Independent Executor of the Estate of Howard V. Tygrett, Appellant, v. UNIVERSITY GARDENS HOMEOWNERS’ ASSOCIATION, Appellee.
    No. 05-83-01264-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 28, 1985.
    Rehearing Denied March 29, 1985.

      R. Gregory Lamb, Dallas, for appellant.
    Earl Bentley, Dallas, for appellee.
    Before AKIN, SPARLING and WHIT-HAM, JJ.
   SPARLING, Justice.

Appellee, University Gardens Homeowners’ Association, sued H.V. Tygrett, appellant, to collect a late payment penalty charge resulting from overdue assessments on Tygrett’s condominium. Tygrett counterclaimed for statutory penalties under TEX.REV.CIV.STAT. art. 5069-1.06 (Vernon 1971 & Vernon Supp.1984), contending that the late charge amounted to usurious interest. The Association prevailed in a trial to the court on stipulated facts, and Tygrett’s counterclaim was denied. Ty-grett contends on appeal that the trial court erred in its conclusion of law that the late charge was not usurious interest. We disagree and affirm.

Tygrett owned a condominium unit in the University Gardens project. The Association was an unincorporated nonprofit entity comprised of all the owners of the individual units at University Gardens, including Tygrett. Pursuant to the by-laws of the Association and the Condominium Declaration, the Association administered the overall operation of the condominiums, which included assessing the individual owners their proportionate share of the various common expenses incurred in managing and maintaining the property.

Assessments to condominium owners were collected on a monthly basis. In accordance with the by-laws, a five-dollar late charge was added for each day that the monthly assessment was overdue. Ty-grett, whose monthly assessment was $228.48, was delinquent in his payment a total of 79 days in three separate months. He did not dispute the amount of the assessments due, and eventually paid them. However, Tygrett refused to pay the resulting $395.00 late charge, asserting that it was usurious interest.

The trial court, in its findings of fact and conclusions of law, found in part that: (1) the Association entered into a written contract with Tygrett which provided for his payment of assessments “intended to provide funds from which to pay anticipated expenses common to the Association” and for late payment penalties; (2) the Association was entitled to demand a $395.00 late payment penalty from Tygrett for late assessment payments; (3) Tygrett refused to pay such penalty; (4) Tygrett was eighty-two years old and ill during this period, and did not fail to pay the penalties due to conscious indifference; (5) the Association was entitled to a judgment of $395.00 against Tygrett; and (6) the late payment penalty was not interest as that term is statutorily defined.

Article 16, section 11 of the Texas Constitution authorizes the legislature to classify loans and lenders, regulate lenders, define interest, and fix maximum rates of interest. Pursuant to this authority, the legislature defined usury as “interest in excess of the amount allowed by law,” and interest as “the compensation allowed by law for the use or forbearance or detention of money.” TEX.REV.CIV.STAT.ANN. art. 5069-1.01(a), (d) (Vernon 1971). Thus, for the usury laws to apply, there must be an overcharge by a lender for the use, forbearance, or detention of the lender’s money. Stedman v. Georgetown Savings & Loan Association, 595 S.W.2d 486, 489 (Tex.1979). The question, then, is whether the late charge was for the “use or forbearance or detention” of the Association’s funds by Tygrett and therefore interest.

The “use” of money provision referred to in the statute is that which is contracted for when a loan is made. Parks v. Lubbock, 92 Tex. 635, 51 S.W. 322, 323 (1899). The late charge imposed was clearly not within this category because no funds of the Association were transferred or “loaned” to Tygrett.

“Forbearance” occurs when there is a debt due or to become due, and the parties agree to extend the time of its payment. Meyer v. Mack Sales, Inc., 645 S.W.2d 493, 495 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.). It is undisputed that the assessments were due. However, there is no evidence that the Association agreed to extend the time of Tygrett’s payment, or to forego collection or demand for immediate payment, regardless of payment of the late charge. We thus conclude that there was no “forbearance” within the meaning of the usury statute.

Finally, the “detention” of money arises when a debt has become due and the debtor has withheld payment without a new contract giving him the right. Parks, 51 S.W. at 323. Because usury must be founded on an overcharge by a lender for the use, forbearance or detention of the lender’s money, the definition of “detention” necessarily requires a lending transaction between the parties themselves. See Stedman, 595 S.W.2d at 489 (emphasis added). See also Crow v. Home Savings Association of Dallas County, 522 S.W.2d 457, 459 (Tex.1975) — (a major emphasis delineating between a legal and a usurious transaction is whether the party charging for the use, forbearance or detention of money “himself lends to the borrower”). Thus, the Association can be held to have overcharged Tygrett for the detention of money only if Tygrett detained the Association’s money by agreeing that the Association pay his creditors and then later discharging his “debt” to the Association through payment of the assessments. In the present case, the evidence reflects that no such lending relationship between the Association and Tygrett existed. Rather, the following evidence indicates that the Association was merely a conduit or agent of the owners which maintained an account containing, among others, Tygrett’s money, through which Tygrett paid his own individual debts as a member of the Association.

The Association was empowered to annually prepare a budget for the condominiums to determine the amount payable by the owners to meet the common expenses. Accordingly, the assessments were fixed in an amount approximating the “projected operating expenses” of the Association, which were divided into three categories:

(a) Current expense, which shall include all funds and expenditures within the year for which the funds are budgeted, including a reasonable allowance for contingencies and working funds, except expenditures chargeable to reserves and to additional improvements.
(b) Reserve for deferred maintenance, which shall include funds for maintenance items which occur less frequently than annually.
(c) Reserve for replacement (sinking fund), which shall include funds for repair or replacement required because of damage, wear or obsolescence.

If the Association overestimated the expenses, the by-laws provided that it could decrease the assessments or return any excess at the end of the year. If the Association underestimated, it could increase the assessments or levy a special assessment. The Declaration required Ty-grett to pay, in advance, his portion of the “estimated or actual” expenses before the first of each month. The Declaration also provided that the common expenses assessed were the “personal and individual debt of the owner,” and unpaid assessments constituted a lien upon the owner’s condominium. Further evidence that the Association was merely a distributor for the owner’s money may be found in a letter to the condominium owners from the Association regarding delinquent assessments:

The Association is a non-profit organization and has no source of income except from your assessments. If you don’t pay, there is nothing with which to pay the costs of running the complex. If you don’t pay on time, we are forced to put off paying bills, risking loss of discounts and our credit rating.... I also urge you to make sure your assessments are paid on time simply to avoid the additional operating costs necessary to collect delinquent assessments. (Emphasis added).

We conclude that there is sufficient evidence from the aforementioned documents that there was no “debt” owed to the Association as a lending entity, and thus no “detention” of money within the meaning of the usury statute.

Tygrett relies upon Dixon v. Brooks, 604 S.W.2d 330, 334 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.), which stated that under Texas law “late charges are considered interest.” Dixon, however, concerned a late charge on a promissory note, in which a lending relationship was clearly established. Here, as previously discussed, there was no such lending relationship to which “interest” as defined by statute could attach. Further, Texas law has indeed recognized several types of transactions where there was no lending relationship and thus late charges did not constitute usurious interest, including: (1) rental or lease relationships [Schepps Grocery Co. v. Burroughs Corp., 635 S.W.2d 606, 610 (Tex.App.—Houston [14th Dist.] 1982, no writ); Apparel Manufacturing Co. v. Vantage Properties, 597 S.W.2d 447, 448-49 (Tex.Civ.App.—Dallas 1980, writ ref’d n.r.e.); Southwest Park Out-patient Surgery, Ltd. v. Chandler, 572 S.W.2d 53, 55 (Tex.Civ.App.—Houston [1st Dist.] 1978, no writ); Maloney v. Andrews, 483 S.W.2d 703, 704-05 (Tex.Civ.App.—Eastland 1972, writ ref’d n.r.e.)]; and (2) utility billings Rimco Enterprises, Inc. v. Texas Electric Service Co., 599 S.W.2d 362, 366 (Tex.Civ.App.—Fort Worth 1980, writ ref’d n.r.e.).

The usury statutes are penal in nature and are to be strictly construed. Texas Commerce Bank-Arlington v. Goldring, 665 S.W.2d 103, 104 (Tex.1984). Any doubt as to the intention of the legislature to punish the conduct of the party should be resolved in favor of the defendant. Hight v. Jim Bass Ford, Inc., 552 S.W.2d 490, 491 (Tex.Civ.App.—Austin 1977, writ ref’d n.r.e.). The question of usury must be determined by a construction of all the documents constituting the transaction, interpreted as a whole, and in light of the attending circumstances. Spanish Village, Ltd. v. American Mortgage Co., 586 S.W.2d 195, 199 (Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.). Moreover, there is a presumption that the parties intended a nonusurious contract; when the contract by its terms, construed as a whole, is doubtful, or even susceptible to more than one reasonable construction, the court will adopt the construction which comports with legality. Smart v. Tower Land & Investment Co., 597 S.W.2d 333, 340-41 (Tex.1980). Applying these rules of construction, we conclude that the late charge here does not fall within any of the statutory definitions of interest, and thus is not interest as a matter of law. Meyer, 645 S.W.2d at 495. There was no “lending relationship” as contemplated by the statute. Rather, the evidence reflects that the charge was a device to induce timely payment so as not to penalize the credit rating of the Association of which Tygrett was an integral part, and to require the delinquent payers to bear collection costs that resulted from delay in paying their collective bills.

Appellant’s points of error are overruled.

Affirmed.

WHITHAM, Justice,

dissenting.

I respectfully dissent. In my view, the late payments are interest, the interest charged was usurious and the trial court erred in failing to render judgment accordingly. Consequently, I would sustain Ty-grett’s three points of error and reverse and render judgment in favor of Tygrett.

TEX.REV.CIV.STAT.ANN. art. 5069-1.-01(a) (Vernon 1971), defines interest as “the compensation allowed by law for the use or forbearance or detention of money.” The detention of money arises in a case when a debt has become due, and the debt- or withholds its payment without a new contract giving him the right to do so. Parks v. Lubbock, 92 Tex. 635, 51 S.W. 322 (1899). In my view, a debt has become due in the present case and the debtor has withheld its payment without a new contract giving him the right to do so. Therefore, I disagree with the majority’s holding that there has been no detention of money in the present case.

I cannot agree with the majority that, by virtue of the assessments, Tygrett was paying his own obligations; hence, no debt to the other owners can exist to be detained. The majority’s interpretation disregards the provisions of article twenty-two of the Condominium Declaration for University Gardens providing for interest on past due assessments. Article twenty-two reads:

The amount of common expenses assessed against each condominium shall be the personal and individual debt of the owner thereof. No owner may exempt himself from liability for his contribution toward the common expenses by waiver of the use or enjoyment of any of the common elements or by abandonment of his unit. The Board of Managers or Managing Agent shall have the responsibility to take prompt action to collect any unpaid assessment which remains unpaid more than fifteen (15) days from the due date for payment thereof. In the event of a default by an owner in the payment of the assessment, such owner shall be obligated to pay interest at the rate of ten percent (10%) per annum on the amount of the assessment from due date thereof, together with all expenses, including attorney’s fees, incurred to collect such assessment together with late charges as provided by the By-Laws of the Association.

Furthermore, the majority’s interpretation disregards the provisions of article 4, (3)(f) of the by-laws of the association reading:

To collect delinquent assessments by suit or otherwise and to enjoin or seek damages from an owner who may be in default as is provided in the Declaration and these By-Laws. To enforce a per diem late charge of FIVE and 00/100 DOLLARS ($5.00) and to collect interest at the rate of ten percent (10%) per an-num in connection with assessments remaining unpaid more than fifteen (15) days from due date for payment thereof, together with all expenses, including attorney’s fees incurred.

To my mind, the provision for ten percent (10%) interest per annum payable to the other owners contemplates a debt due the other owners. In my view, the provision for a late charge so immediately tied to provisions for the stated interest of ten percent is nothing other than a provision for additional compensation cast in the terminology of a “late charge.” Thus, the compensation to be paid is the stated interest of ten percent (10%) of the principal per annum plus the five dollars a day late charge fixed by the by-laws of the University Gardens Condominium Association.

Furthermore, my view that there is a debt due the other owners is reinforced by the fact that article twenty-three of the condominium declaration goes on to impose a lien upon the debtor’s property to secure the payment of the debt. In the language of article twenty-three:

All sums assessed but unpaid for the share of common expenses chargeable to any condominium unit shall constitute a lien on such unit superior to all other liens and encumbrances, except only for tax and special assessment liens on the unit in favor of any assessing unit, and all sums unpaid on a first mortgage or first deed of trust of record, including all unpaid obligatory sums as may be provided by such encumbrance.

In the present case, all of the owners paid into a cooperative pool (the association) various common expenses incurred in managing and maintaining the property. As stipulated by the parties, “[t]he revenue generated by the collection of assessments from homeowners is applied by the Association principally to pay for the cost of maintenance of the condominium properties, the payment of utility charges and taxes, premiums for required insurance coverages and administrative expense.” To facilitate payment of these expenses, assessments were collected of and from all the owners collectively through the vehicle of the association, an unincorporated nonprofit entity comprised of all owners, including Tygrett. The creation and operation of the association cannot change the fact that all of the owners were to pay the various common expenses. It is inconceivable that when, for example, utility charges were payable that Tygrett’s proportionate part went unpaid. Therefore, if one owner failed to pay his proportionate share, then other owners had to pay his share on his behalf. Thus, Tygrett’s debt to the other owners was created when he defaulted in the payment of an assessment.

To negate the existence of this debt owed the other owners, the majority places great reliance upon portions of a letter to the owners from the association. I quote the letter in full and underscore the close interrelationship between the stated interest of ten percent (10%) per annum and the late charges as compensation for the detention of money.

Section 21 of our Declaration provides that payment of your maintenance assessment is due monthly in advance on the first day of each month. Under Article IV. 3.(f) of our By-laws the Board of Managers is authorized to collect a $5.00 late charge for each day your assessment is not paid after the first of the month. The same provision authorizes the Board to collect interest at the rate of 10% per annum if your assessment remains unpaid for more than 15 days, (emphasis in original).
Effective April 1, 1978, the foregoing provisions will be put into effect, as follows:
(1) If payment of your assessment is not received in the Association’s office by 5:00 p.m. on the second business day of the month for which it is due, a late charge of $5.00 a day will be made for each day during which the assessment remains unpaid after the first of the month.
(2) If your assessment remains unpaid for more than 15 days, in addition to the late charges described above, you will be charged interest at the rate of 10% per annum until the assessment is paid, (emphasis added).
(3) Several homeowners are seriously delinquent in the payment of maintenance assessments — some going back to the date of closing on their individual units. These owners will have until 5:00 p.m. on April 3, 1978, to pay all amounts due, in full. After that time, late charges and interest will be added to their accounts. Obviously, this could amount to quite a lot of money in some cases, (emphasis added).
The Association is a non-profit organization and has no source of income except from your assessments. If you don’t pay, there is nothing with which to pay the costs of running the complex. If you don’t pay on time, we are forced to put off paying bills, risking loss of discounts and our credit rating. I am sure you don’t want University Gardens operated in that fashion.
I also urge you to make suré your assessments are paid on time simply to avoid the additional operating costs necessary to collect delinquent assessments. In my opinion, the money could be better spent.
If you pay your assessments on time regularly, we thank you. Obviously, this letter is not directed at you.

Contrary to the interpretation placed on the letter by the majority to negate debt, I read the letter as a plea that owners pay on time, otherwise their fellow owners will have to pay their share for them; and that if payment is not timely that steps will be taken to collect the resulting debt.

When Tygrett failed to pay, the other owners had to “lend” him his part of the common expenses. Therefore, I cannot agree with the majority that the association was merely a conduit “through which Ty-grett paid his own individual debts as a member of the Association.” To my mind, the present case is one in which a debt has become due to the other owners and Ty-grett has withheld its payment without a new contract giving him the right to do so. Consequently, I would hold that there has been a detention of money within the meaning of article 5069-1.01(a). Moreover, in my view, the late charges are compensation for that detention of money, as is the stated interest of ten percent (10%) per annum. It follows, and I would further hold, that the late charges are interest.

Having concluded that the late charges are interest, it must next be determined whether the late charges are usurious. A contract is usurious as a matter of law if there is any contingency by which the lender may receive more than the lawful rate of interest. Shropshire v. Commerce Farm Credit Co., 120 Tex. 400, 30 S.W.2d 282 (1930). The stated interest of ten percent (10%) per annum was the maximum amount allowed by law in the present case. TEX. REV.CIV.STAT.ANN. art. 5069-1.02 (Vernon 1971). Therefore, provision for the late charges was the contingency by which the association may receive more than the lawful rate of interest. Consequently, I would hold that the late charges are usurious.

Accordingly, I would reverse the judgment of the trial court and render judgment that the association take nothing against Tygrett. I would render judgment in favor of Tygrett and against the association in an amount calculated under TEX. REV.CIV.STAT.ANN. art. 5069-1.06 (Vernon 1971 & Vernon Supp.1984), together with interest on that amount at the rate of nine percent (9%) per annum from the 15th day of July 1983, the date of the trial court’s judgment.

        . Common expenses included maintenance costs, utility charges, taxes, insurance, and administrative expenses.

      . Interestingly, the dissent argues that a provision in the Condominium Declaration for interest at 10% somehow inalterably stamps this agreement as a loan and otherwise contaminates the legality of the penalty provision. This unique concept of this case was neither briefed nor argued by the parties and we can find no provision in the law to justify such a conclusion.

      . The Keystone of the dissenting opinion is the statement: "It is inconceivable that when, for example, utility charges were payable that Ty-grett’s proportionate part went unpaid." This is sheer speculation. It is just as easy to speculate that none of the utilities were paid until all the assessments were collected. Indeed, the letter to Tygrett stated, "If you don't pay on time, we are forced to put off paying bills.” In either event, it is the nature of the relationship, not its mechanics, that is controlling.

      . In Dixon v. Brooks, 678 S.W.2d 728 (Tex.App.—Houston [14th Dist.] 1984, no writ), a subsequent opinion after remand, the court held that the same late charges were not usurious.


text:
    Robert EIKEL, Appellant, v. Lyn A. CORRY, Appellee.
    No. 01-84-0468-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 28, 1985.
    Robert Eikel, Eikel & Davey, Houston, for appellant.
    Michael Klein, Fulbright & Jaworski, Houston, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

COHEN, Justice.

An automobile collision between the parties led to a jury trial resulting in a verdict and judgment that the appellee was not negligent. In his sole point of error, the appellant contends that hearsay evidence was improperly admitted, thereby causing the rendition of an improper judgment. Trial occurred before September 1, 1983, the effective date of the new Texas Rules of Evidence.

The appellant’s automobile entered an intersection where it was struck and damaged by the automobile driven by the appel-lee. At trial, the appellee offered into evidence a chart correlating minimum stopping distance with speed as evidence that, between the time appellee saw the appellant’s car and the time of impact, the appel-lee’s vehicle could not have been stopped. The chart measured “perception distance,” “reaction distance,” and “skid distance,” at speeds from five to 80 miles per hour.

The appellant objected to the chart, but did not mention hearsay, the basis for his point of error. He stated: “I object to it because it is a general chart. It is not supported by any evidence.” The Court overruled the objection and admitted the chart into evidence.

At the time this case was tried, hearsay evidence was not merely inadmissible, it was incompetent. It had no probative value, even if admitted without objection, and, it would not, standing alone, support a judgment. Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 891 (Tex.1969); Aetna Ins. Co. v. Klein, 160 Tex. 61, 68, 325 S.W.2d 376, 381 (1959). Therefore, the error asserted on appeal can be considered, despite the lack of a hearsay objection in the trial court, because an objection to incompetent hearsay was not required in order to preserve error. Texas Co. v. Lee, 138 Tex. 167, 171-72, 157 S.W.2d 628, 631 (1941).

Experts may testify regarding braking time, see Missouri-Kansas-Texas R. Co. v. Hamilton, 314 S.W.2d 114, 123 (Tex.Civ.App.—Dallas 1958, writ ref’d n.r. e.), and stopping distance, see Rogers v. Gonzales, 654 S.W.2d 509, 512-14 (Tex.App.—Corpus Christi 1983, writ ref’d n.r. e.). There was no expert testimony in the case at bar, however; there was only a chart. Thus, there was no way to test by cross-examination the truth of the chart’s conclusions. Texas Employers’ Insurance Ass’n v. Nixon, 328 S.W.2d 809 (Tex.Civ.App.—Houston 1959, writ ref’d .r.e.).

The appellee contends that the Court should have taken judicial notice of the information represented by the chart, but it cites no cases authorizing judicial notice of such facts. Courts have judicially noticed a normal driver’s reaction time, but they have not judicially noticed the correlation of minimum stopping distance with speed. See Samford v. Duff, 483 S.W.2d 517, 525 (Tex.Civ.App.—Corpus Christi 1972, writ ref’d n.r.e.).

In the present case, the principal issue was whether the appellee kept a good lookout and had her car under control. Thus, an important question was whether she had applied her brakes in time to avoid the collision. The testimony on that issue was in sharp dispute, and the chart, which strongly supported the appellee’s version, undoubtedly affected the verdict. The chart was improperly admitted over the appellant’s objection, and we find that the error was calculated to cause and probably did cause the rendition of an improper judgment. Tex.R.Civ.P. 434; see Chapa v. United States Fire Insurance Co., 644 S.W.2d 823, 827 (Tex.App.—Corpus Christi 1982, no writ). We therefore sustain the appellant’s point of error.

The judgment is reversed, and the cause is remanded for a new trial.


author: J. CURTISS BROWN, Chief Justice.

text:
    Karen Christine RUMPH, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-739CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1985.
    Rehearing Denied March 21, 1985.

      David W. Farley, Houston, for appellant.
    Calvin Hartmann, Dist. Atty., J. Harvey Hudson, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and DRAUGHN and CANNON, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

Karen Christine Rumph was charged with the murder of her husband. She was found guilty by a jury, which assessed punishment at ten years probation and a fine of $10,000. Judgment was entered on the verdict and the court additionally sentenced appellant to 60 to 120 days imprisonment.

The police obtained a written statement from appellant that she shot her husband with a handgun. Appellant’s motion to suppress this statement was overruled. Appellant contends in her first ground of error that the denial of the motion to suppress was error because the statement was not voluntary. The jury was made aware of the statement through examination of appellant by her counsel. The State never attempted to introduce the statement into evidence. Even if we assume that the ruling on the motion to suppress was erroneous, such error does not vitiate the conviction, because the evidence sought to be surpressed was not introduced into evidence. Brewster v. State, 606 S.W.2d 325, 328 (Tex.Crim.App.1980); Ferguson v. State, 571 S.W.2d 908, 909 (Tex.Crim.App.1978). Ground of error one is overruled.

In ground of error two appellant contends that the trial court erred in failing to exclude from the autopsy report the medical examiner’s statement that the decedent’s death was due to homicide. Appellant contends that the medical examiner’s statement is a legal conclusion which he was not qualified to testify to. The statement was a factual conclusion, not a legal conclusion. Homicide is simply the “killing of a human being by another”. Webster’s Third New International Dictionary 1083 (1981). The fact that appellant shot and killed her husband was not contested at trial. Ground of error two is overruled.

In ground of error three, appellant contends that the trial court erred in refusing to allow some of appellant’s character witnesses to testify because the witnesses had never specifically discussed the appellant’s reputation. Appellant is correct in asserting that the fact that a witness has not heard the reputation discussed in the community does not disqualify him from testifying as to a person’s reputation as a peaceable and law-abiding person. Barber v. State, 168 Tex.Crim. 168, 324 S.W.2d 553 (1959). However, the error in excluding the testimony was not preserved for review. Appellant did not by a bill of exception show what the testimony would have been if the witnesses had been allowed to testify. Baldwin v. State, 538 S.W.2d 109, 112-113 (Tex.Crim.App.1976). Ground of error three is overruled.

Appellant contends in her fourth ground of error that the trial court erred in permitting the state to use testimony about the offense for which appellant was on trial to attempt to impeach reputation testimony favorable to appellant. We have reviewed the testimony which appellant objected to and there is no reference to the offense appellant was charged with. In the objected to testimony appellant stated that the deceased’s aunt told appellant’s fellow employees that she had “evil ways.” Appellant claims that the aunt’s opinion is based upon the offense with which appellant was charged. However, the basis of aunt’s opinion was not disclosed to the jury. Ground of error four is overruled.

Appellant contends in her fifth ground of error that the trial court erred in denying appellant’s motion for dismissal or for a directed verdict of acquittal. Appellant waived any potential error in the trial court’s denial of her motion by putting on a defense. Kuykendall v. State, 609 S.W.2d 791, 794 (Tex.Crim.App.1980); Shirley v. State, 501 S.W.2d 635, 637 (Tex.Crim.App.1973). Ground of error five is overruled.

Appellant contends in her sixth ground of error that the trial court’s charge to the jury incorrectly stated the elements of intent required to sustain a conviction. The charge of the Court which was submitted to the jury at the innocence-guilt phase of the trial stated the following:

Our law also provides that a person commits the offense of murder if he intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

This language tracks the language of Sec. 19.02(a)(2) of the Texas Penal Code. The indictment stated:

... Defendant, heretofore on or about April 2, 1983, did then and there unlawfully intend to cause serious bodily injury to JAMES RIVERS RUMPH, JR., ... hereafter styled the Complainant, and did cause the death of the Complainant, by intentionally and knowingly committing an act clearly dangerous to human life, namely, shooting the Complainant with a firearm, (emphasis added)

Appellant appears to be complaining that the court’s charge did not require the jury to find that she intentionally and knowingly committed an act clearly dangerous to human life. However, the court’s charge contains equivalent language; it requires the jury to find that she intentionally caused serious bodily injury by committing an act clearly dangerous to human life. Since “intentionally” is a higher culpable state than “knowingly”, there was no diminution of the State’s burden of proof in the charge. TEX.PENAL CODE ANN. § 6.02(d) (Vernon 1974). The charge, therefore, did not permit conviction on proof different than nor less than that required by the indictment. Cumbie v. State, 578 S.W.2d 732, 734 (Tex.Crim.App.1979). We find no fundamental error in the charge. Ground of error six is overruled.

In ground of error seven, appellant contends the trial court erred in refusing to include in the charge to the jury her requested instruction on the law of circumstantial evidence. The requirement of a circumstantial evidence charge has been abolished. Hankins v. State, 646 S.W.2d 191, 197 (Tex.Crim.App.1981). Ground of error seven is overruled.

In ground of error eight, appellant contends the trial court erred in permitting the prosecutor, to comment to the jury in summation on the appellant’s failure to call her nine-year old son to testify. Appellant testified that at times her son was present when her husband beat her. The child was a competent and material witness to the facts leading up to the killing. The state is entitled to comment on appellant’s failure to call such a witness and may argue that the reason the witness was not called by appellant is that the testimony would have been unfavorable to appellant. Carrillo v. State, 566 S.W.2d 902, 912 (Tex.Crim.App.1978).

In ground of error nine appellant contends that the evidence of appellant’s intent or state of mind is insufficient to support her conviction. The state was required to show beyond a reasonable doubt that appellant (1) intentionally or knowingly caused the death of an individual or (2) intended to cause serious bodily injury and committed an act clearly dangerous to human life that causes the death of an individual. TEX.PENAL CODE ANN. § 19.02(a)(1), (2) (Vernon 1974). The role of the appellate court in reviewing the sufficiency of the evidence is not to ask whether we believe that the evidence at trial established guilt beyond a reasonable doubt; it is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App.1982); See Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). We recognize that the presumption of an intent to kill from the use of deadly weapon per se is no longer valid under the Texas Penal Code. Harrell v. State, 659 S.W.2d 825 (Tex.Crim.App.1983); Gantz v. State, 661 S.W.2d 213, 218 (Tex.App.—San Antonio 1983, pet ref’d).

Appellant admitted that she grasped the gun with both hands and shot her husband as he was coming towards her. The pathologist testified that the bullet travelled on a horizontal path through the victim’s abdomen which was the cause of death. The bullet entered on the left side of the abdomen. Viewing this evidence in the light most favorable to the prosecution we find that a rational trier of fact could have found an intent to kill or to cause serious bodily injury. We overrule ground of error nine.

In ground of error ten appellant contends that the jury verdict is contrary to the law and evidence, because she created a reasonable doubt on the issue of self defense as a matter of law. The issue of self defense was presented to the jury. It is their province to assess the credibility and weight of the evidence on this issue. Their conclusion is not subject to appellate review. Banks v. State, 510 S.W.2d 592, 595 (Tex.Crim.App.1974). Ground of error ten is overruled.

In ground of error eleven appellant contends that the trial court erred in overruling appellant’s objection to the following part of the prosecutor’s argument at the punishment phase:

The second thing that should be considered is telling the defendant specifically what her actions are worth, what her actions, the actions which caused the death of James, are worth, her walking in with the gun and going in there and shooting him to death and then what her actions in getting on the stand and telling you what she told you are worth. What is it worth to malign a person who is not here to defend himself, who is dead? What are those actions worth in our city, in our county, in our state? You need to tell her by your verdict what it’s worth to prepare your defense to all of a sudden becoming the best mother and going to church every week and starting to teach Sunday school classes after you have murdered your husband prior to the time of going on trial?

Appellant objected to this argument as improper because it suggested that appellant be punished for something other than the offense she committed.

The prosecutor’s argument is an appropriate summation of the evidence concerning appellant’s conduct, demeanor, and character. In sentencing, a jury may legitimately consider evidence heard during trial and appraise the demeanor and character of the accused. Chaffin v. Stynchcombe, 412 U.S. 17, 32, 93 S.Ct. 1977, 1985, 36 L.Ed.2d 714 (1973). The appellant’s character is relevant to assessing punishment. Aliff v. State, 627 S.W.2d 166, 173 (Tex.Crim.App.1982).

Even were we to assume that such argument was improper, we conclude that appellant was not prejudiced by this argument. The jury convicted appellant of murder. The range of punishment is confinement in the Texas Department of Corrections for life or for any term not more than 99 years or less than five years. In addition to imprisonment, the individual may be-punished by a fine not to exceed $10,000. TEX.PENAL CODE ANN. § 12.32 (Vernon Supp.1984). The jury assessed punishment at ten years probation and a fine of $10,-000. Because the jury assessed punishment at the extreme lower end of the punishment range, we conclude that the argument was ignored by the jury and therefore harmless. Ground of error eleven is overruled.

In ground of error twelve appellant contends that the trial court erred in denying appellant’s motion for a mistrial during the prosecutor’s summation at the punishment phase, because the prosecutor argued that the jury should do what society requires in the assessment of punishment (i.e. put appellant in the penitentiary) and such improper argument cannot be cured by the court’s instruction to disregard. Bothwell v. State, 500 S.W.2d 128 (Tex.Crim.App.1973); Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527 (1961). This improper argument was ineffective and not harmful to appellant. The jury gave appellant probation instead of penitentiary time. Ground of error twelve is overruled.

In ground of error thirteen appellant claims that the trial court erred in submitting at the punishment phase, instead of at the guilt/innocence phase, a special issue concerning appellant’s use of a firearm. Appellant argues that the submission of the issue could be construed by the jury as an indication that they should assess a more severe punishment because a firearm was used. Appellant did not object to the submission of the issue. We do not agree with appellant’s speculation that the issue gave such an indication to the jury. If there was any error, it was not fundamental. Point of error thirteen is overruled.

In ground of error fourteen, appellant contends that the trial court abused its discretion by ordering that: 1) appellant serve sixty to one hundred and twenty days in the Texas Department of Corrections because a firearm was involved and 2) appellant pay the $10,000 fine that the jury assessed within one year.

Appellant argues that the trial court abused its discretion in sentencing appellant to serve sixty to one hundred twenty days because appellant had no criminal history, several witnesses testified to appellant’s good character, and the appellant’s minor son needs her care. In view of the punishment range for the serious crime of murder, we do not believe that appellant has shown an abuse of discretion by the trial court in ordering a relatively short period of confinement.

Appellant asserts that the trial court's order to pay the $10,000 fine within one year as a condition of her probation constitutes an abuse of discretion because she is incapable of paying the fine by that time. Appellant’s complaint is premature. If appellant’s probation is revoked solely because of her failure to pay her fine and the state fails to demonstrate that she had the capability to pay, her complaint will then be ripe.

The judgment of the trial court is affirmed in all respects.


author: SEARS, Justice.

text:
    David Wayne HOFFMAN, Appellant, v. The STATE of Texas, Appellee.
    No. C14-84-446-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1985.

      I. Nelson Heggen, Houston, for appellant.
    Miguel Martinez, Galveston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a conviction for burglary of a building. The appellant waived his right to trial by jury, pled nolo contendere and was sentenced to four years confinement in the Texas Department of Corrections. In a two-pronged single ground of error, appellant alleges the trial court erred in denying his motion to dismiss for failure to provide a speedy trial in accordance with the Speedy Trial Act, TEX.CODE CRIM.PROC.ANN. art. 32A.02, § 1(1) (Vernon Supp.1985). We agree, and reverse and remand.

The appellant was arrested on October 26, 1983, for the offense of burglary of a building and has remained in custody since that time. An examining trial was held November 16. The indictment was returned on December 16, 1983; and on the same date, the assistant district attorney presenting the case to the grand jury filed a written announcement of ready. The case first appeared on the docket on February 21, and was set for trial February 24, 1984, but was not reached. On February 27, appellant filed a pro se Motion to Dismiss based on the Speedy Trial Act. The case was then set on the March 16 trial docket and assigned for trial March 19. On March 16 appellant's attorney filed a Motion to Dismiss the indictment for failure to provide a speedy trial. The state was not ready to go to trial on March 19 because the assistant district attorney assigned to the case was in the process of moving his belongings to Galveston. The Motion to Dismiss was heard on April 6 and denied on May 2. Appellant was arraigned on May 17 and pled nolo conten-dere while specifically reserving the right to appeal his contention that the state violated the Speedy Trial Act.

The Speedy Trial Act provides that the trial court shall grant a motion to set aside an indictment if the state is not ready for trial within 120 days of the commencement of a felony action. The appellant alleges that the state was in violation of art. 32A.02 because on March 19, 1984, 145 days after the appellant’s arrest, the state was not ready for trial.

Appellant also asserts the state could not have been ready within the statutory period because the indictment was not served on appellant until April 10, 1984, 167 days after arrest. Since trial may not proceed until the appellant has been arraigned, which can not occur until at least two days after the indictment is served on the appellant, the state could not have been ready for trial within the 120 day period. See TEX.CODE CRIM.PROC.ANN. arts. 25.01, 25.02, 26.03 (Vernon 1966).

The threshold standard for dismissal under the Speedy Trial Act, i.e. “the state is not ready for trial,” refers to the preparedness of the prosecution for trial and does not encompass the trial court and its docket. Barfield v. State, 586 S.W.2d 538, 541 (Tex.Crim.App.1979). Thus the Act addresses itself to prosecutorial delay rather than the judicial process as a whole. Id. Once the defendant files his motion to dismiss for failure to adhere to the Speedy Trial Act, the state must declare its readiness for trial then and at all times required by the Act. This declaration is a prima facie showing of conformity with the statute but can be rebutted by any evidence demonstrating that the state was not ready for trial during the 120 day time limit and at the time appellant filed his Motion to Dismiss. Id.

Richard Crowther, the prosecutor to whom the case originally was assigned, testified that while he had the case the state was ready at all times to proceed to trial. Crowther left the district attorney’s office on February 29, 1984. Douglas Yan-ey, the next assistant district attorney assigned to try the case, testified that he received the case file shortly after starting to work for the district attorney’s office on March 12,1984. He testified that he would not have been able to try the case the week of March 19 because he was out of town and in the process of moving to Galveston. There is no evidence in the record to indicate that the case was not reached on March 19 for any reason other than Yan-cy’s absence. More importantly, there is no proof in the record before this court that the state announced ready on March 16 when appellant filed his Motion to Dismiss as required under Barfield.

The state argues that a prima facie showing of readiness within the statutory period was not rebutted by the appellant. However, it is the prosecutor whose function and duty it was to try the case as of the time the appellant claimed his rights under art. 32A.02 whom the statute requires to be ready, not other staff members who theoretically might have been ready had they been given the assignment. McLean v. State, 638 S.W.2d 124 (Tex.App.—Fort Worth 1982, pet. ref’d).

Crowther testified that the written announcement of ready filed on the date of indictment was filed by the assistant district attorney who presented the case to the grand jury. He further testified the practice followed by the district attorney’s office was to get the announcement of ready on the record at time of indictment to avoid a Speedy Trial Act problem. It is significant to note that the assistant making the announcement is not the assistant who will take the case to trial. Crowther further testified that up to 150 cases may be set on a Friday docket call for the following Monday’s trial docket; and when the state initially announces ready, that announcement is “good forever.” However, when the state is unable to proceed to trial on March 19 because the prosecutor is out of town, how can the announcement be “good forever”? We find it to be hollow and meaningless to announce ready for trial when in truth and in fact they are not. Mr. Yancy came to work on March 12 and was handed this file along with others. He left town sometime before March 19 and was not available for trial that entire week. The state indicated the case was so simple any assistant could have taken it to trial without preparation, but no one did. The Act was violated when the state did not announce ready on March 16 when appellant filed his Motion to Dismiss, and when no assistant district attorney was ready to take this case to trial on March 19, 1984, 145 days after appellant’s arrest.

We hold that the appellant sufficiently rebutted the state’s prima facie showing of readiness. Ground of error one is sustained. We need not consider appellant’s contention concerning the lack of service of the indictment within the statutory time limit.

We reverse and remand to the trial court with instructions to dismiss the indictment pursuant to art. 32A.02.


author: ELLIS, Justice.

text:
    Richard STELTER d/b/a Inwood Automotive, Appellant, v. Earl LANGORIA, Appellee.
    No. A14-84-624-CV.
    Court of Appeals of Texas, Houston (14 Dist.).
    Feb. 28, 1985.
    Jim Parish, Houston, for appellant.
    Lawrence R. Edrozo, Dickinson, for ap-pellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is a negligence case. Appellant, Richard Stelter, appeals from a judgment in favor of appellee, Earl Langoria. Appel-lee sued appellant for damages to his van which was vandalized while in appellant’s possession. Appellant was the owner of Inwood Automotive, a repair shop where appellee left his van to be repaired. After a dismissal, a trial to the court, and yet another dismissal, judgment was entered for appellee for damages in the amount of $2,910.77. We affirm.

Appellant in his first point of error asserts that the trial court committed error when it proceeded to trial on March 21, 1984, on a case that had been dismissed for want of prosecution on March 15,1984, and had not been reinstated. In his second point of error, he asserts that the trial court erred when it entered judgment on July 12, 1984, after the case had been initially dismissed for want of prosecution on March 15, 1984, and had not been reinstated, and further the case had been dismissed again on June 26, 1984, in accordance with Rule 5 of the Rules of County Civil Court at Law No. 4 of Harris County, Texas, without any subsequent motion or order to reinstate the case.

Appellee filed his original petition on January 6, 1983. The record contains an order setting the case for trial on March 14,1984. On March 15, 1984, Judge Charles Cous-sons of the County Civil Court at Law No. 4 entered a judgment of dismissal in appel-lee’s suit because he failed to appear for trial on March 14, 1984, to prosecute his suit. However, that judgment of dismissal was set aside by a written order dated March 21, 1984, granting a new trial on the court’s own motion. The case proceeded to trial on March 21, 1984, without objection. After a non-jury trial, which was completed the same day, the court found for appellee and awarded damages in the amount of $2,910.77. This oral judgment was not reduced to writing and signed by the judge. On June 26, 1984, Judge Coussons signed an order of dismissal pursuant to Rule 5 of the Rules of County Civil Court at Law No. 4. Rule 5 provides:

Any case regularly set for trial and announced settled by telephone or otherwise will be held by the Clerk for 45 days for entry of Judgment. If no Judgment is entered it will be Dismissed....

However, at the bottom of this dismissal order, Judge Coussons signed an order on July 12, 1984, granting a new trial on his own motion. The prior oral judgment was then reduced to writing and signed the same day, July 12, 1984.

We do not find that the trial court committed error when it proceeded to trial in this case even though it had been dismissed for want of prosecution and allegedly had not been reinstated. Rule 165a of the Texas Rules of Civil Procedure requires that a written reinstatement order must be granted within 80 days of the dismissal. On March 15, 1984, the court dismissed the case for want of prosecution. However, on March 21, 1984, the trial judge signed a written order, which is in the record, granting a new trial on the court’s own motion. That order constituted an order of reinstatement and it was timely signed and entered in compliance with Rule 165a. Appellant places particular importance on the fact that the record does not show that a motion for reinstatement was made. To support his contention, appellant cites The Courtlandt Corporation v. Trico Service Corporation, 600 S.W.2d 883 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r. e.). However, that case does not require that appellee make a motion before reinstatement may be ordered. The Court-landt case merely requires a written order of reinstatement within 30 days of dismissal. The written order signed by Judge Coussons met this requirement. The trial court validly proceeded to trial. Point of error one is overruled.

We also find that appellant’s second point of error has no merit. Appellant contends that the trial court erred when it entered judgment after the case had been dismissed for want of prosecution and again dismissed because the judgment was not entered within 45 days after trial. We see no problem in the entry of judgment after the first dismissal for the very same reasons that we found no error in proceeding to trial after the first dismissal. In addition, we find no error in the entry of judgment after the second dismissal. The trial judge ordered the second dismissal on June 26, 1984, because no judgment had been submitted for entry and 45 days had passed since the court announced its decision after trial. However, the trial judge at the bottom of the dismissal order wrote that he ordered a new trial on the court’s own motion. That order was dated July 12, 1984. We interpret that written order to mean the dismissal was set aside and the case was reinstated. Since the reinstatement order was signed within 30 days of the dismissal, the court had jurisdiction to so act. We find the case was properly reinstated twice; therefore, the entry of judgment was valid.

Accordingly, the judgment of the trial court is affirmed.