author: ROWE, Justice.

text:
    Brenda Lee JACOLOS, T/N Brenda Lee Jacobs, and Dana Dalano Daniels, Petitioners, v. Honorable Robert MOSS, Judge of the County Criminal Court No. 10 of Dallas County, Appellee.
    No. 05-83-01508-CR.
    Court of Appeals of Texas, Dallas.
    Nov. 8, 1984.

      James M. Murphy, Dallas, for petitioners.
    Tom Streeter, Asst. Dist. Atty., Dallas, for appellee.
    Before AKIN, VANCE and ROWE, JJ.
   ROWE, Justice.

Petitioners filed this application for a writ of mandamus, or alternatively prohibition, from an “Order of Conditional Discharge” granted under TEX.REV.CIV. STAT.ANN. art. 4476-15, § 4.12 (Vernon Supp.1983) (the Controlled Substance Act) by the Honorable Robert Moss, Judge of the County Criminal Court No. 10 of Dallas County. Our first question is whether mandamus will lie. We hold that it will. Our second question is whether the assessments of fines and court costs provided for in the order are “reasonable conditions” of probation under section 4.12. We hold that they are. Accordingly, we deny petitioners’ writ.

The State contends initially that, despite the broad mandamus jurisdiction conferred on our court by TEX.REV.CIV. STAT.ANN. art. 1824 (Vernon Supp.1983), mandamus will not lie in this case. The State argues that petitioners could and should be required to litigate by direct appeal any impropriety in the assessment of fines and court costs included in an order of conditional discharge. We cannot agree. The Court of Criminal Appeals addressed the question of direct appeal in the context of TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.12 (Vernon 1974) in Richie v. State, 542 S.W.2d 422, 424 (Tex.Crim.App.1976), and in McIntyre v. State, 587 S.W.2d 413, 418 (Tex.Crim.App.1979). Both of these cases held that no appeal would lie from the grant of a conditional discharge under section 4.12 of the Controlled Substances Act; an appeal can be taken only when that conditional discharge is revoked and a judgment of guilt rendered. Because an adequate remedy at law by direct appeal does not exist under the present state of trial court proceedings, we hold that mandamus will lie. These petitioners should not be forced to breach a purported condition of conditional discharge and suffer an adjudication of guilt in order to attack the statutory propriety of the trial judge’s imposition of these fines and court costs. To place such a requirement upon these offenders would be contrary to the Legislature’s exemptive intent, behind the enactment of the “conditional discharge” provisions of section 4.12, that a certain highly selective class, of which petitioners are members, should thereunder “be subjected to relatively less exposure to the criminal justice system.” [emphasis added]. McIntyre, 587 S.W.2d at 417.

In the trial court petitioners pleaded guilty to possessing less than two ounces of marijuana and were placed upon conditional discharge probation. Ten days’ confinement in county jail, the payment of a $300 fine, and the payment of court costs were made the conditions of probation for each probationer. Petitioners now contend that a trial judge may never assess fines and costs while utilizing the conditional discharge provisions of TEX.REV.CIV.STAT. ANN. art. 4476-15, § 4.12 (Vernon Supp. 1983). We disagree. Section 4.12 provides:

If any person who has not been convicted of an offense under this Act, or subsequent to the effective date of this Act, under any statute of the United States, or of any state relating to a substance that is defined by this Act as a controlled substance, is charged with or found guilty of a violation of this subchapter, except an aggravated offense or an offense under Section 4.051 or 4.052 of this Act, after trial or on a plea of guilty, the court may, without entering a judgment of guilt and with the consent of the defendant, defer further proceedings and place him on probation on such reasonable conditions as it may require and for such period as the court may prescribe, except the probationary period may not exceed two years. [Emphasis added].

The only mention made in this statute concerning the conditions of probation is that they be “reasonable” and that the trial judge deem them to be required as part of the conditional discharge. McIntyre v. State, 587 S.W.2d 413, 417 (Tex.Crim.App.1979) teaches us that by enacting section 4.12 the Legislature called upon trial judges “to exercise an extraordinarily exquisite sense of discriminating discretion” in the granting of a conditional discharge. McIntyre also teaches that the true objective of a conditional discharge is “to divert the accused from the rest of the gauntlet run of the criminal justice system” and that the function of the trial court is to enter into a clearly understood pact with the accused “that will induce and persuade him to follow the diversionary road.” In the absence of a clear showing to the contrary, we must presume the trial judge believed that in this case the assessment of fines and costs would assist in accomplishing the statutory goal. If such was the intention, this condition qualifies as a reasonable one within the purpose of section 4.12. Accordingly, although we have jurisdiction to exercise mandamus, we deny the writ in this case because the condition complained of is not one beyond the sound discretion of the trial judge to impose.

VANCE, J., dissents without written opinion..

      . In our opinion, conditional discharge under section 4.12 is distinguishable from deferred adjudication under TEX.CODE CRIM.PROC. ANN. art. 42.12 (Vernon 1979 and Vernon Supp. 1984) insofar as the right to mandamus is concerned. We concede that the only procedure whereby an appellant may contest an unacceptable provision in an order deferring adjudication is to move for final adjudication. Peters v. State, 651 S.W.2d 31, 34 (Tex.App.—Dallas 1983, pet. dism’d).

      . In the instant situation, the trial court did voluntarily agree not to issue a capias pro fine in each case pending resolution of this application.

      . No complaint has been made with respect to the ten-day jail sentence. Consequently, we need not pass upon whether the jail sentence is a "reasonable condition" of conditional discharge under section 4.12. In this respect, it appears to us that an assessment of a fine and costs is a less onerous punishment than a jail term.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    NATIONAL BANK OF TEXAS, Appellant, v. FIRST NATIONAL BANK OF ROUND ROCK, Appellee.
    No. 12-83-0099-CV.
    Court of Appeals of Texas, Tyler.
    Nov. 8, 1984.

      B. Weldon Ponder, Coffee, Golston & Vogt, Austin, for appellant.
    Randy E. Drewett, Groves, for appellee.
    Mark T. Mitchell, Stubbeman, McRae, Sealy, Laughlin & Browder, for appellant, on Bill of Review only.
   SUMMERS, Chief Justice.

The question presented in this appeal is whether appellee, First National Bank of Round Rock (hereafter referred to as “First National”), is entitled to a bill of review to set aside a default judgment. The trial court granted the bill of review. We reverse the judgment of the trial court and render judgment for appellant.

On November 28, 1979, appellant, National Bank of Texas (hereafter referred to as “National”), obtained a judgment against Robert Leffingwell in Cause No. 297,331 in the 98th District Court of Travis County, Texas. After the judgment became final and nonappealable, National applied for a writ of garnishment against First National in an attempt to satisfy the judgment. The garnishment action was docketed as Cause No. 304,796 in the same District Court of Travis County. A writ of garnishment was issued and delivered to First National. The president of First National, Jon E. Sloan, filed a pro se answer to the garnishment action in the form of a letter addressed to the Judge of the 98th District Court of Travis County. Although the copy of the writ of garnishment served on Sloan clearly states that the garnishment action was docketed as Cause No. 304,796, Sloan captioned the letter as follows: “RE: Cause # 297,331 National Bank of Texas v. Leffingwell.” The district clerk received the letter before the answer to the garnishment suit was due; however, in accordance with the reference in the letter, the clerk placed the letter among the papers of the original debt action. Therefore, no answer was placed in the file of the garnishment suit.

A default judgment was entered in the garnishment suit on June 5, 1980, against First National for the total amount of the judgment against Leffingwell. On June 12, 1980, the district clerk mailed a notice of the default judgment to First National in compliance with former Rule 306d (Vernon 1977). First National received the notice on June 18, 1980, which was thirteen days after the judgment was entered. First National employed counsel who prepared a motion for new trial to set aside the default judgment. The attorney mailed the motion to the district clerk on July 3, 1980. The district clerk received and filed the motion on July 7, 1980. The attorney did not ask for a hearing or otherwise attempt to present the motion to the trial judge before the judgment became final on July 7,1980. Instead of perfecting appeal or filing a petition for writ of error, First National filed this bill of review on January 6, 1981, six months after the judgment became final. After the bill of review hearing, the trial court found that First National had filed a legally sufficient answer in the garnishment suit and that the answer was not presented to the court before the default judgment was rendered due to the official mistake of the district clerk. The court also found that First National was diligent in filing the answer and therefore was not negligent in allowing the default judgment to be entered. After granting the bill of review, the trial judge set aside the default judgment and entered a take nothing judgment against National in the writ of garnishment proceeding.

A party seeking to set aside a default judgment by a bill of review must demonstrate that his failure to present a meritorious defense was the result of fraud, accident or wrongful act of the opposite party or official mistake unmixed with his own negligence. Baker v. Goldsmith, 582 S.W.2d 404 (Tex.1979). It is uncontro-verted that the pro se answer was timely filed. However, the answer was not presented to the court because the district clerk placed it with the papers of the original debt action. The trial court held that the clerk made an official mistake by filing the answer in the debt action notwithstanding the erroneous reference in the letter to the debt action. National has not presented a point of error regarding the court’s finding of official mistake; therefore, we cannot review that finding.

However, National asserts in its fifth point of error that First National failed to exhaust its legal remedies before filing its petition for bill of review. As in all equitable proceedings, a party must show that he has no adequate remedy at law before he is entitled to a bill of review. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). It is uncontroverted that First National received notice of the default judgment on June 18, 1980, which was thirteen days after the judgment was rendered. The trial judge had plenary power over the default judgment until July 7, 1980, under Rule 4 and former Rule 329b(5) (Vernon 1977). First National had nineteen days to present a motion for new trial to the trial judge for his approval even though the motion could not be used for purposes of appeal. First National’s attorney mailed the motion for new trial to the district clerk twenty-eight days after the judgment was rendered instead of presenting the motion to the judge before the judgment became final four days later. Therefore, First National negligently failed to take steps to prevent the judgment from becoming final notwithstanding the ample opportunity to do so. See Mackay v. Charles W. Sexton Co., 469 S.W.2d 441 (Tex.Civ.App.—Dallas 1971, no writ).

First National also failed to perfect appeal after the judgment became final. The answer was legally on file once it was in the district clerk’s custody. Therefore, the answer was part of the record and would be part of the appellate transcript. See Rule 376. Had First National perfected appeal, the appellate court could have properly reversed the default judgment since an answer was on file. Also, because the error was on the face of the record, First National had six months after the default judgment was rendered in which to appeal by writ of error to the Court of Appeals. Instead, First National chose to wait six months and file this bill of review. Because First National failed to exhaust the available legal remedies to set aside the default judgment, it is not entitled to a bill of review to achieve the same result. French v. Brown, 424 S.W.2d 893 (Tex.1967). National’s fifth point of error is sustained. We do not reach National’s other points of error since our holding on this point of error is dispositive of the appeal.

The judgment of the trial court is reversed and judgment is rendered that the default judgment in favor of National Bank of Texas be reinstated.

      . All references to rules are to the Texas Rules of Civil Procedure.

      . The thirtieth day after the judgment was rendered fell on Saturday, July 5, 1980. Under Rule 4, the judgment became final on the following Monday. See Dupree v. Piggly Wiggly Shop Rite Foods, Inc., 542 S.W.2d 882, 890 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.).

      .At the time the default judgment was entered, Rule 329b(l) provided that a motion for new trial had to be filed within ten days from the date judgment was rendered. Since First National did not receive notice of the default judgment until thirteen days after it was rendered, a motion for new trial could not be timely filed in order to become reviewable on appeal.


text:
    COMPUGRAPHIC CORPORATION, Appellant, v. Margie F. MORGAN, Appellee.
    No. 05-82-00302-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 9, 1984.
    Rehearing Denied Dec. 7, 1984.
    William B. Finkelstein, Paul M. Koning, Hughes & Hill, Dallas, for appellant.

      Bertrán T. Bader, III, Cox & Bader, Dallas, for appellee.
    Before CARVER, ALLEN, and ROWE, JJ.
   ROWE, Justice.

Opinion On Remand

Finding in the record some probative evidence to support the trial court’s award of damages, the supreme court has reversed our judgment which held to the contrary on Compugraphic’s no evidence point and has remanded this cause to our court for consideration of an alternative point of error by Compugraphic asserting the factual insufficiency of the evidence. See Tex., 675 S.W.2d 729 reversing, Tex.App., 656 S.W.2d 530. As mandated, we have again reviewed the statement of facts covering the hearing on damages and have concluded that the $200,000 award made by the trial judge is manifestly unjust because the evidence is too weak and insufficient to support it. We now sustain, therefore, Compugraphic’s alternative point of error and remand the cause to the trial court for a new trial between Morgan and Compu-graphic, limited albeit to the issue of Morgan’s damages only, in conformity with the supreme court’s opinion concerning that issue.

The supreme court’s opinion elaborates on the character of the evidence found to have enough probative weight to raise a fact issue on damages. This evidence concerns those symptoms which the otherwise healthy Morgan testified she experienced within a few days after returning from vacation to her job and working close to a newly installed typesetting machine. These initial symptoms included only watering of the eyes, blurred vision, headaches, and swelling of the breathing passages. Because of these early-noticed symptoms, Morgan did take off from work for several weeks. Although she testified she usually worked 38¾ hours per week and received a salary averaging $227.70 per week, Morgan did not testify to any actual loss of pay during this short period. Also, her testimony on long-term lost wages as well as other alleged long-term damages was related not to symptoms initially suffered but to additional symptoms reportedly diagnosed later by medical experts as being changes in Morgan’s immune system, the gradual onset of cataracts in both eyes, and a persistent and violent allergenic reaction involving most of the body. The line dividing these two separate categories of symptoms is, however, so imprecisely fixed in the record that we cannot in fairness quantify what amount of damages attributable to particular symptoms is supported by the record and what amounts are not. Accordingly, rather than order a remittitur, we set aside the entire award made by the trial court and, on terms above stated, remand for trial the determination of the amount of all recoverable damages which Morgan has asserted against Compugraphic.


author: WARD, Justice. STEPHEN F. PRESLAR,

text:
    Melvin Lee ALEXANDER, Appellant, v. Patricia A. RUSSELL, Appellee.
    No. 08-83-00028-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 14, 1984.
    Rehearing Denied Dec. 12, 1984.

      Stephen A. Hines, Merkin & Hines, El Paso, for appellant.
    Hector I. Reyes, Daniel Anchondo, Robert S. Anchondo, Anchondo & Armendariz, El Paso, Richard Barajas, Fort Stockton, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

WARD, Justice.

Melvin Alexander appeals from a default judgment by which the 243rd District Court of El Paso terminated his parental rights to his son. The appeal challenges the authority of the judge of the 327th District Court of El Paso County to act in the proceeding, the legal sufficiency of the evidence, alleged defects in the appointment of the guardian ad litem, the lack of notice and a disregard of a demand for a jury. The appeal is without a statement of facts. We affirm.

The transcript reveals examples of carelessness in the entry of orders, the filing of the papers and even the capacity with which the judges acted, all of which created considerable confusion in sorting out the proceedings. Melvin Alexander and Patricia A. Russell were divorced on October 10, 1978, by decree of the 243rd District Court in Cause No. 78-4534. In June, 1980, the Appellant filed in the 243rd District Court, same cause number, a motion to change the managing conservatorship and requesting his appointment as temporary managing conservator. This was granted, but the proceeding then ended in an order restoring the minor child to his mother. This order was entered in the 243rd District Court and is signed by Judge Enrique Pena as judge presiding of the 243rd District Court. Judge Pena is the judge of the 327th District Court. The two district courts have jurisdiction over El Paso County. With this order the confusion begins, as it recites that in that proceeding to change the managing conservatorship, the judge of the 243rd Judicial District Court disqualified himself to proceed and transferred the case to the 327th District Court and that the jurisdiction of the 327th District Court was “not in issue nor is it being challenged by any party to the lawsuit.” Regardless of these recitals, the order was entered in the 243rd District Court and was signed by Judge Pena as judge presiding of the 243rd District Court.

On May 10, 1982, Patricia Russell filed her petition to terminate the parent-child relationship between the Appellant and the child alleging that the Appellant had failed to support the child according to his ability during a period of one year ending within six months of the date of the filing of this petition and that termination of the parental relationship was in the best interest of the child. This was filed in Cause No. 78-4534 and on the printed caption of the petition is “327th JUDICIAL DISTRICT.” In hand, the “327th” is corrected with “243rd.” The Appellant filed an answer to this petition on June 3, 1982, in the 243rd District Court. On September 8, 1982, Hector Zavaleta, an attorney, was appointed guardian ad litem in the proceeding and this appointment was under the same number, but in the 327th District Court and signed by Judge Edward Marquez, who is defined as “JUDGE.” Judge Edward Marquez is judge of the 65th District Court in El Paso County. On October 28, 1982, the Appellant made a request for a jury in the proceeding, the request being made in the 243rd Judicial District Court. On November 4, 1982, a hearing was held and the court rendered judgment terminating the Appellant’s parental relationship to his son. The caption of the termination decree is printed in the 327th District Court and is signed by Judge Pena who signed as “JUDGE.” The caption of the termination decree has been corrected in hand, as was the original petition, to reflect that the judgment came from the 243rd District Court and not the 327th District Court. This decree recites that William Crout was appointed as the guardian ad litem, that the Appellant although duly and properly cited did not appear and wholly made default, that a jury was waived and that all matters and controversy were submitted to the court. This order was approved by William Crout as guardian ad litem, and as stated is signed by Judge Pena as “JUDGE.”

After the entry of the decree, a motion was filed in the 243rd District Court requesting substitution of counsel for the Appellant and this was granted by Judge Marquez as judge presiding in the 243rd District Court. Thereafter, the new counsel for the Appellant filed a motion for new trial in the 327th District Court. The transcript does not contain anything reflecting that any action was ever taken on that motion. Thereafter, within the ninety days required after the judgment was signed, Appellant filed his cost bond; however, it is noted that this cost bond is filed in the 327th Judicial District Court. Both the motion for new trial and the cost bond were filed in Cause No. 78-4534, being the original cause number in the divorce and in the proceeding filed to terminate conservator-ship.

We have treated the motion for a new trial as having been filed in the proper court due to the fact that the correct docket number was used and that a correct cost bond was then filed, again due to the fact that the proper docket number was used and it is obvious that both the motion for new trial and the cost bond were intended to be filed in the termination proceeding. No attack has been made on these proceedings by the Appellee within thirty days after the filing of the transcript in this Court. Any questions arising therefrom are treated by us as pertaining to informal-ities in the manner of bringing the case into court, and any objection thereto is considered as waived. Rule 404, Tex.R. Civ.P.

Appellant raises five points of error. Under Point of Error No. One, the Appellant contends that the 327th District Court was without jurisdiction to render judgment since the 243rd District Court was the court of continuing jurisdiction. The Appellant relies upon the principle that once the court acquires jurisdiction of a particular child and enters a final judgment, that court has continuing and exclusive jurisdiction over subsequent suits affecting that child until the matter is transferred to another court.

The Appellant argues that the decree of termination was heard and rendered in the 327th District Court. We do not agree. The transcript as presented to us shows that the petition for termination, the answer, the Appellant’s request for a jury and the final decree of termination were all filed in Cause No. 78-4534 in the 243rd District Court. The printed heading on the petition and the decree of termination were originally printed as being filed in the 327th District Court and were then scratched out to show the 243rd District Court. This means that as far as our record is concerned, the petition and judgment were filed and entered in the proper 243rd District Court. That is what the District Clerk’s certificate attached to the transcript reflects. There has been no attack on that certificate and no showing by bill of exceptions, statements of facts or otherwise that these proceedings were ever in any other court but the 243rd District Court.

The Appellant argues that the signature by Judge Pena who signed as “JUDGE” to the decree of termination establishes his point. That argument is without merit under the facts before us since he was acting as judge of the 243rd District Court. The constitution and statutes of this state have made provision for district judges to hold court for each other. The combined result of Tex. Constitution art. 5, sec. 11; Tex.Rev.Civ.Stat.Ann. arts. 1916 and 200b (Vernon Supp.1984); and Tex.R.Civ.P., Rule 330(e)(f)(g) is that any district judge in El Paso County may hear and determine any case or proceeding or any part thereof pending in any other of the District Courts of El Paso County. Gaspard v. Gaspard, 582 S.W.2d 629, 631 (Tex.Civ.App.—Beaumont 1979, no writ); Balderas v. State, 497 S.W.2d 298, 299 (Tex.Crim.App.1973); Collins v. Miller, 443 S.W.2d 298, 300 (Tex.Civ.App.—Austin 1969, writ ref d n.r.e.). The district judges in El Paso County sitting as judges in this multidistrict court county should exercise extreme caution and should sign their orders in their proper capacity. However, the fact that they fail to so sign does not deprive them of their power to act for another judge under the above authorities and comparable facts. Appellant’s Point of Error No. One is overruled.

In Point of Error No. Two, the Appellant contends there was insufficient evidence to support any finding as required under Tex.Fam.Code Ann. sec. 15.02 (Vernon Supp.1984). Section 15.02 sets out two elements a petitioning party must prove before a court terminates a parent-child relationship. These are 1) the commission of the proscribed conduct listed under sec. 15.02(1), and 2) that termination is in the best interest of the child under sec. 15.-02(2). The termination decree recites that all matters of law and fact were submitted to the court, and further recites that the court found that Appellant had failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition and that termination was in the best interest of the child. A court may grant a petition requesting termination of the parent-child relationship if the parent has failed to support the child according to his ability within six months of the date of filing of the petition. See: Whiteside v. Dresser, 543 S.W.2d 158, 159 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.). Appellant did not file a statement of facts with this Court. Absent a statement of facts, this appellate Court must presume the judgment is supported by sufficient evidence. Calhoun v. Calhoun, 617 S.W.2d 756 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). Point of Error No. Two is overruled.

Under Point of Error No. Three, Appellant contends the trial court erred in rendering judgment without the appearance of the guardian ad litem or notice to the representative of the final setting. The Family Code contains directory provisions concerning the appointment of a disinterested person to represent a child in a suit involving the termination of the parental relationship. Tex.Fam.Code Ann. sec. 11.10 (Vernon Supp.1984). The 327th District Court appointed Hector Zavaleta guardian ad li-tem of the parties’ child on September 8, 1982. The termination decree from the 243rd District Court recites that William Crout was appointed guardian ad litem, and that the decree is approved by that guardian ad litem and he appeared at the hearing. The transcript does not contain an order reflecting a change in guardian ad litem. Appellee avers in her brief that Zavaleta withdrew from the cause of action after a motion to remove him was made by counsel for the Appellant and the trial court appointed Crout as the new guardian ad li-tem, and further stated that this change would be reflected in the statement of facts. Appellant states in his brief that Crout made a report with the trial court as attorney ad litem and the court awarded him attorney’s fees.

As recited in the judgment, Crout, a disinterested person, was appointed by the court to represent the child. Since there is no statement of facts, but only the recitals made in the judgment, this point is overruled.

Under Point of Error No. Four, Appellant contends that the trial court could not grant the termination by default since he did not receive notice of a final hearing. A trial court may set contested cases for trial on the motion of any party, or on the court’s own motion, with reasonable notice of not less than ten days to the parties. Bosco & Sons Contracting Corporation v. Conley, Lott, Nichols Machinery Company, 629 S.W.2d 142 (Tex.App.—Dallas 1982, writ ref’d n.r.e.); Rule 245, Tex.R.Civ.P. Failure to give the required notice of the trial setting is a ground for reversal. Morris v. Morris, 554 S.W.2d 792 (Tex.Civ.App.—San Antonio 1977, no writ). The decree recites that Appellant was duly and properly cited, did not appear and made default, but there is no recitation that ten days notice of trial setting was given to the Appellant. Regardless, the trial court is presumed to have heard the case only after proper notice. The cases cited by Appellant are those where the record affirmatively showed lack of notice of setting. It was incumbent upon Appellant to show by either the statement of facts or a bill of exception that he or his attorney did not get notice by personal service, registered mail or a method otherwise directed by the trial court. Point of Error No. Four is overruled.

Under Point of Error No. Five, Appellant contends the trial court erred in rendering judgment without a jury after he had requested a jury trial. Rule 220, Tex. R.Civ.P., provides:

When any party has paid the fee for a jury trial, he shall not be permitted to withdraw the cause from the jury docket over the objection of the parties adversely interested. If so permitted, the court in its discretion may by an order permit him to withdraw also his jury fee deposit. Failure of a party to appear for trial shall be deemed a waiver by him of the right to trial by jury.

The last sentence of this rule was added in a 1971 amendment.

In Chandler v. Chandler, 586 S.W.2d 260, 262 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d), the court in overruling a point similar to that in the case at bar stated:

When the absent party is the one who affirmatively asserts his right to a jury and has timely paid his jury fee, his absence shall be deemed as a waiver by him of the right to a trial by jury.

Point of Error No. Five is overruled.

The judgment of the trial court is affirmed.

STEPHEN F. PRESLAR,

Chief Justice, dissenting.

I respectfully dissent. There is no room in our judicial process for this kind of a determination of people’s rights especially in such a serious matter as termination of parental rights. One judge gives the mother custody; less than two years later, based on pleadings of an emergency for the child’s welfare, the judge of that same court changes the custody to the father; that judge apparently disqualified himself, at least he takes no further action in the case; another judge takes over and some six months later, in a lengthy order styled “A Memorandum Opinion,” writes a dissertation on family law and ends up returning custody to the mother; then comes this severance of parental rights of the father, who six months before was found by the first court to be the more fit parent to have custody; in the severance of parental rights case, a third judge gets into the act on two different occasions, appoints a guardian ad litem (later displaced by another guardian ad litem, who appears in the final judgment although there is no order of his appointment) and signs an order allowing substitution of counsel. As indicated in our majority opinion, the real confusion centers on which court considered and determined the various matters involved. The case arose in the 243rd District Court and apparently ended there with an order labeled as the 248rd, but signed by the judge of the 327th District Court, not as “judge presiding in the 243rd”, but simply as “Judge.” Throughout the record the various pleadings and orders are styled as being in both the 243rd and the 327th. Some of those originally typed as the 327th are struck out and 243rd is written in. This with no notation of who did it or under what authority or when. Some remain unchanged as being in the 327th. One such order out of the 327th is signed by the “Judge” of the 65th District Court.

As set out in the majority opinion, the district courts in El Paso may hold court for each other, but that does not cover the situation presented by this case. This parent-child relationship case is required by statute to be heard by the court where it orginated. The requirement is jurisdictional by its own terms and has long been zealously so construed by the courts. See: Ex parte Mullins, 414 S.W.2d 455 (Tex.1967) and numerous authorities therein cited. Section 11.05 of the Family Code (Vernon Supp.1984) in part provides:

[W]hen a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing, exclusive jurisdiction of all parties and matters provided for under this subtitle in connection with the child. No other court of this state has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 or 17.06 of this code.

The record does not contain an order transferring this case from the 243rd where it originated. The vitally important matter of jurisdiction is resting on such tenuous grounds as scratched out and written in court designations, orders of one court signed by judges of other courts and resort to a presumption of continuing jurisdiction based on the clerk’s standard transcript designation. The jurisdictional waters are further made muddy by a recitation in the “Memorandum Opinion” by the judge of the 327th reciting:

Jurisdiction of the 327th Family District Court is not in issue nor is it being challenged by any party to the law suit.

This court order declaring jurisdiction should override a clerk’s transcript certificate. If not, then it, combined with the other cited conflicts in the exercise and atempted exercise of jurisdiction by the different courts, calls for Appellant’s Point of Error No. One to be sustained. The severance of parental rights is such a serious matter that it should not stand on the questionable jurisdiction presented by this record. This case should be remanded in the interest of justice for the error cited.

I would further clarify the majority opinion to make sure and to disclaim any misconception that it is holding that any El Paso judge can hear, in his own court, a parent-child matter subject to Section 11.05 of the Family Code. Article 200b, Tex.Rev. Civ.Stat.Ann. (Vernon Supp.1984) has no application to the real question of jurisdiction in this case. While it provides that a judge of one El Paso court may sit in the court of another judge, it does not alter the jurisdiction provided for by Section 11.05. Article 200b sec. 6, provides:

Neither this Act nor any rule adopted under this Act may be construed to authorize any judge to act in a case of which his own court would not have potential jurisdiction under the constitution and laws of this State.

Jurisdiction of this case was fixed by the statute in the 243rd District Court. Undeniably, a judge of any of the other district courts of El Paso could preside in the 243rd. Unless they were actually presiding in that court, any action taken by the judge of another court in regard to this case would be void. Ex parte Mullins, supra.

[A] court cannot exist without a judge. But a judge is not the court, although frequently the words are used interchangeably. A time when, a place where, and the persons by whom, judicial functions are to be exercised, are essential to complete the idea of a court.

Ex parte Lowery, 518 S.W.2d 897 (Tex.Civ.App.-Beaumont 1975, no writ), quoting the Supreme Court of Indiana.

Because of the questions surrounding the exercise of jurisdiction in this case, I would reverse and remand.


author: WARD, Justice.

text:
    Edward L. KENNEDY and David Kennedy, Appellants, v. Lloyd BAIRD, Appellee.
    No. 08-83-00316-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 14, 1984.
    Michael R. Milligan, Charles E. Anderson, El Paso, for appellants.
    Stephen B. Tatem, Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellee.
    Before WARD, OSBORN and SCHULTE, JJ.
   OPINION

WARD, Justice.

Two plaintiffs, who were intentionally shot by the defendant’s adult son, sued for their personal injuries and car damage mainly on the theory of negligent entrustment of the rifle by the father to the son. Summary judgment was entered in favor of the defendant-father. We are of the opinion that the summary judgment proof established that the defendant had no forewarning of his son’s criminal behavior on the occasion and that the summary judgment was proper. We affirm.

The Appellee Lloyd Baird resided with his wife, his son John and two other sons at 5735 Waycross in El Paso. John was twenty years of age. Appellants alleged in their petition that on October 1,1982, while in Appellant David Kennedy’s car, they were shot at by John Baird when they turned into the Appellee’s driveway. They alleged and proved that John Baird continued to shoot at the Appellants as they drove away from Appellee’s house and that at least five shots were fired. As a result of the shooting, the Appellant Edward L. Kennedy was shot in the forehead and Appellant David Kennedy suffered an eye injury and damage to his automobile. Appellants brought suit seeking damages, and in their petition they presented two theories of recovery against the defendant-father. The first theory was based on Appellee’s capacity as a land owner and an alleged breach of duty to Appellants with regard to unsafe premises. The second theory of recovery was apparently based on Appel-lee’s alleged negligent entrustment of the rifle to his son John.

By their first point, Appellants complain that the summary judgment should not have been granted because the facts in the case had not been sufficiently well developed. Under this point and under the balance of their points, the Appellants argue that no discovery had taken place, and since the son was charged with a crime, they could not have obtained his affidavit or deposition in the face of his privilege. Outside of the record, they further state that after the hearing they obtained the transcript of a witness in the son’s criminal trial that refuted the Appellee’s affidavit. The matters outside the record are challenged by the Appellee. The Appellants have failed to make any showing as to any other evidence they might have obtained that could have helped them nor did they file any motion for new trial on “newly discovered evidence.” Under this point, nothing is presented for review and the point is overruled.

The balance of the Appellants’ points can be summarized as complaints that the Appellee failed in his summary judgment proof and did not establish as a matter of law that-there were no genuine issues of fact. A defendant who moves for summary judgment has the burden of showing as a matter of law that no material issue of fact exists as to the plaintiff’s cause of action. Williams v. Chaney, 620 S.W.2d 809 (Tex.Civ.App.-El Paso 1981, writ ref’d n.r.e.). This may be accomplished by summary judgment evidence that at least one of the elements of a plaintiff’s cause of action has been established conclusively against the plaintiff. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970). It was by this manner that the Appellee proceeded.

The Appellants’ first theory of recovery against Appellee is based on an alleged breach of a land owner’s duty to maintain safe premises, as the alleged shooting took place on Appellee’s property. This case does not concern a negligent defect in the premises, but only an intentional shooting not related to any premise defect. The real basis of the Appellants’ cause of action was one of negligent entrustment by the father of the rifle to the son.

Appellee’s counsel is correct in stating that there is no prior precedent in Texas to establish a negligent entrustment of a firearm cause of action. However, Texas has long had a cause of action for negligent entrustment of an automobile. Mundy v. Pirie-Slaughter Motor Company, 146 Tex. 314, 206 S.W.2d 587 (1947); Russell Construction Company v. Ponder, 143 Tex. 412, 186 S.W.2d 233 (1945); La-Roque v. Sanchez, 641 S.W.2d 298 (Tex.App.—El Paso 1982, writ ref’d n.r.e.); Murray v. Pasotex Pipe Line Co., 161 F.2d 5 (5th Cir.1947). The establishment of the negligent entrustment of an automobile theory of recovery was developed by the courts because of the realization that one who entrusts an automobile to another owes a duty to the general public not to be negligent in such entrustment. An automobile when in the hands of one who is not competent to handle it becomes a threat to the general public, and the owner of the automobile who is negligent in the entrustment should be liable to the injured party provided that causation can be shown. The owner’s liability does not arise out of a vicarious relationship, rather it arises out of the negligence of the owner in entrusting the automobile to another.

A firearm is a deadly weapon per se, Tex.Penal Code sec. 1.07(a)(ll)(A) (Vernon 1974), and under certain circumstances, the owner may be charged with responsibility for the use made of it where the control of the weapon has passed to another. 79 Am. Jur.2d Weapons and Firearms, sec. 38, p. 40 (1975). Most of the cases involve en-trustment of the weapon to a minor child, but there are exceptional cases where the entrustment of the weapon was to an adult. Thus, a cause of action was recognized where there was the sale of a firearm to a person obviously demented who immediately used the weapon to kill a third person. Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Dist.Ct.App.—Florida 1978).

Potential liability in such a situation is recognized by Restatement of Torts Second sec. 390 (1965):

Chattel for Use by Person Known to be Incompetent
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

The Appellee’s summary judgment proof consisted of his own affidavit which stated that he resided in his home with his wife, two minor sons and his adult son John who did the shooting; the adult son was self-employed, had his own car and the Appel-lee seldom saw him; on the occasion in question, the Appellee arrived home for his evening meal and did not remember seeing John at the meal but remembers the other members of the family all going out that night and that he was alone in the house asleep in his den; he was awakened after 9:00 p.m. when he heard some noise at the front of the house and the incident was over when he went outside and saw his son John. The affidavit continues as follows:

I have no knowledge that at any time before October 1, 1982 JOHN BAIRD had ever used or fired a weapon at any ear or person. I had absolutely no knowledge of JOHN’S physical condition before I went outside on the night of October 1, 1982, or whether he had or had not been drinking. I have no personal knowledge of any incident where JOHN BAIRD has ever used a weapon or gun against anyone at any time before the events of the evening of October 1, 1982 allegedly occurred. In my opinion, JOHN BAIRD does not have a violent temper, and I know of no occasion, nor do I have any personal knowledge, where JOHN displayed a violent temper prior to the events on the evening of October 1, 1982 that allegedly occurred.
During the time that JOHN has lived in my house, neither his mother nor I had any indication that he would attempt to use a weapon or gun against someone else. I have kept in my home at 5735 Waycross 30-caliber rifle, which I have intended to use as a deer rifle, and to my knowledge, the rifle has never been fired. Both JOHN and his brother own a 22-caliber rifle, which they have had for a number of years that have only been used, to my knowledge, in the desert to shoot at cans or targets. Both JOHN’S mother and I have never had any knowledge that either the 22 or 30-caliber rifles were ever fired in the city or at either a person or a car at any time before the evening of October 1,1982. I have absolutely no knowledge of the conduct of JOHN BAIRD or his physical condition at any time on the day of October 1,1982 before I was awakened from my easy chair and went outside to the front yard of my home.

Appellants responded to this affidavit with ones which indicate that the adult son had pushed a fifteen-year-old boy down on one occasion and another that he had a reputation for having a violent temper.

We are of the opinion that the Appellee’s affidavit was clear, positive and direct as to his knowledge to show he breached no duty to the Appellants. The summary judgment was proper as it proved the absence of one key element of the Appellants’ cause of action, the actual knowledge by the Appel-lee of his son’s propensity to commit the act complained of or to use the rifle dangerously. Restatement of Torts Second sec. 390(b) (1965).

We have considered all of the Appellants' points and they are all overruled. The judgment of the trial court is affirmed.


author: POWERS, Justice.

text:
    David Paul COTE, Appellant, v. The STATE of Texas, Appellee. Donald Clay SKELTON, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 3-84-125-CR, 3-84-133-CR.
    Court of Appeals of Texas, Austin.
    Nov. 21, 1984.

      Charles 0. Grigson, Austin, for appellants.
    Ronald Earle, Dist. Atty.; David Boat-right, Asst. Dist. Atty., Austin, for appel-lee.
    Before POWERS and GAMMAGE, JJ., and KEITH, J. (Retired).

      Keith, Justice (Retired), Ninth Court of Appeals, sitting by assignment. See Art. 1812, as amended.

   POWERS, Justice.

The trial-court judgments, rendered following a bench trial on pleas of not guilty, convict appellants David P. Cote and Donald P. Skelton of cocaine possession. Tex. Rev.Civ.Stat.Ann. art. 4476-15, § 4.04(a), (b)(1); § 4.01(b)(2); § 4.02(b)(3)(D) (1976); Tex.Rev.Civ.Stat.Ann. art. 4476-15, §§ 4.04(a), (b), (c); 4.01(b)(2); 4.02(b)(3)(D) (1976). Crisp v. State, 643 S.W.2d 487 (Tex.App.1982), aff'd, 661 S.W.2d 944 (Tex.Cr.App.1983). Each appellant was sentenced to a prison term of three years, which was probated, and a fine of $300.00. We will affirm the judgments of the trial court.

In their respective appeals, the appellants raise two identical grounds of error: (1) the trial court erred when it overruled a motion to suppress evidence of the cocaine, it having been discovered by reason of an unlawful warrantless arrest; and (2) the evidence was insufficient to support a finding of guilty because there was no evidence that either knew the substance was cocaine or that either had exercised control over it. Before turning to these contentions, we shall summarize the evidence bearing thereon.

SUMMARY OP THE EVIDENCE

The arresting officer testified that he was a uniformed city police officer on duty the night of appellants’ arrest. Around 10:35 p.m., he had gotten out of his police automobile and was walking through the parking lot of a shopping center. The retail establishments in the center were closed, save for a couple of restaurants and bars, or nightclubs. The center was, according to the officer, a place where “[w]e have more trouble ... at night” than in the daylight hours. By more “trouble,” he meant “[njarcotics, disturbances, public intoxication, assaults, killings, any number of things.”

Continuing, the officer testified that the parking lot was lighted and he was able to see clearly. He saw a van about thirty feet away. It was legally parked in a section of the lot used by patrons of one of the bars. The dome light of the van was shining. He saw in the front seat of the van two individuals. The driver (Skelton) “was leaning over towards the middle of the van, and he had his hand close to his face in a position that looked like he was snorting cocaine.” The driver then “passed [an] object that was in his hand to the ... passenger [Cote] who did a similar thing with the object,” that is, the passenger took the small object and “put it to his face and leaned over, also.” On examination by defense counsel, the officer stated that he saw clearly the two individuals in the van and responded “That’s correct,” when asked:

And as you approached the van ... the driver appeared to be taking something to his nose.

Seeing the movements of the two individuals, the officer walked toward the right-front quarter of the van. When the officer “was a couple of steps” from the passenger side, the passenger said something to the driver, who then turned off the dome light. The passenger concurrently “sat up and put his left hand down,” which was the hand that he had “had near his face.” Based upon these observations, when the officer was “getting right close to the door” on the passenger side of the van, he formed the opinion that “they were snorting cocaine and [he] was going to arrest them.”

The officer testified that on arriving at the door of the van he ordered the passenger

... to get out of the van and put his hands behind his back. He had both hands in fists in front.... I opened the door, ordered him to get out of the van, put his hands behind his back. He had his hands in fists. I got his right hand behind his back, and he continued holding his left hand in a fist in front of him. I told him to put it behind his back. He dropped something out of his left hand, and it hit on the ground, and he kicked it under the van, and I handcuffed him.

The officer then arrested the driver as well. The object kicked under the van by Cote was shown to be an open vial containing a substance stipulated to be cocaine. The lid of the vial was found between the two front seats of the van.

UNLAWFUL ARREST

A police officer is statutorily authorized to “arrest an offender without a warrant for any offense committed in his presence or within his view.” Tex.Code Cr.P. Ann. art. 14.01 (1977). Whether effectuated with or without a warrant, however, an arrest must be predicated upon “probable cause” in order to be constitutionally valid. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

To determine whether there exists in a particular case the predicate of “probable cause," one must appraise the material facts and circumstances and evaluate whether the basis for the arrest was no more than an inarticulate hunch, suspicion, or good-faith belief, held by the arresting officer, that an offense had been committed; or, on the other hand, whether the arrest, at the moment it was made, was based upon observations or reasonably trustworthy information sufficient to warrant a man of reasonable prudence in believing that an offense had been committed for which an arrest was authorized. The latter is said to constitute “probable cause.” The former does not. Id.; Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949); Muniz v. State, 672 S.W.2d 804, 806 (Tex.Cr.App.1984); Hawkins v. State, 660 S.W.2d 65, 70 (Tex.Cr.App.1983); Britton v. State, 578 S.W.2d 685, 689-90 (Tex.Cr.App.1979) (opinion on State’s motion for rehearing). “Probable cause” is thus a eonclusory inference drawn from an appraisal of the material facts and circumstances. Several principles govern the reasoning process by which the conclusion of “probable cause” may be reached.

The factual possibilities surrounding a warrantless arrest are, of course, practically limitless. Because of this, reviewing courts normally resort to analogy to previous circumstances where probable cause was or was not inferred. We shall do so here.

In Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), the Court inferred probable cause from the following circumstances shown by the evidence. The officer stopped the defendant’s automobile in a routine, nighttime, driver’s license check. He asked for the defendant’s license, shining his flashlight inside the defendant’s car. The officer saw fall from the defendant’s hand an opaque, green party balloon, knotted at the tip. Based upon the officer’s previous experience in drug arrests, and discussions with fellow officers, he was aware that narcotics frequently were packaged in such balloons, and while the defendant searched for his license, the officer shifted position to obtain a better view. He noticed in the open glove compartment an open bag of similar balloons, loose white powder, and small plastic vials. The defendant stated that he did not have a driver’s license in his possession and complied with the officer’s request that he get out of the automobile. When he did so, the officer picked up the green balloon, which seemed to contain a powdery substance within the tied-off portion. The officer arrested the defendant. The Supreme Court inferred probable cause from the facts and circumstances.

In Miller v. State, 667 S.W.2d 773, 777 (Tex.Cr.App.1984), the Court quoted and adopted the following principles stated by the Supreme Court in Texas v. Brown, supra:

As the Court frequently has remarked, probable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, non-technical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States.... Moreover, our observation in United States v. Cortez, 449 U.S. 411 [101 S.Ct. 690, 66 L.Ed.2d 621] ... (1981), regarding “particularized suspicion,” is equally applicable to the probable cause requirement:
The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

Appellants suggest in the present cases that the movements observed by the arresting officer were as logically consistent with innocent behavior (for example, the inhalation of medicine by nasal spray) as with criminal activity, and so they were in the sense that anything is possible. But we are cautioned against “library analysis” and enjoined to assign meaning to the officer’s observations in the light in which he viewed them, under all the facts and circumstances, as one “versed in the field of law enforcement.” Miller v. State, supra; United States v. Cortez, supra; Texas v. Brown, supra. Specifically, we may not require a showing that the officer’s belief of criminal activity be “more likely true than false.” Texas v. Brown, supra; Miller v. State, supra.

We hold the following evidence would warrant a man of reasonable prudence in believing that appellants were inhaling cocaine:

1. The parking lot was in an area of high crime activity, including “narcotics.”

2. Skelton leaned over with his hands to his face, holding a small object in his hand which he then passed to Cote who used it in the same manner.

3. To one versed in law enforcement, as shown by the arresting officer’s testimony of his previous experience and police-academy training, it is known that cocaine is often taken by leaning over and inhaling the powder through the nose. While the officer’s training and experience in this regard were shown not to be great, we hold them sufficient to be placed in the scales as giving particular meaning to the officer’s observation. Cf, Miller v. State, supra, at 777-78.

4. On seeing the approaching officer, Cote sat up, dropped the hand holding the small object, and said something to Skel-ton, who turned off the dome light that had previously illuminated the cab. One may infer that appellants’ movements in this regard were in reaction to seeing the approaching police officer, who testified that he was a uniformed officer on duty at the time and that the parking lot was sufficiently lighted for one to see clearly. In our view, appellants’ furtive reactions to the approaching officer gave a distinctly culpable meaning to their previous movements in the front seat of the van — movements that had, by their being consistent with cocaine inhalation, first excited the officer’s suspicion and led him to remove his doubt by further investigation. The furtive reaction may also have an innocent explanation, but credulity is not a virtue in any reasonably prudent police officer, nor does the law require it when he assigns meaning to all the facts and circumstances he observes, and draws therefrom an interpretative conclusion assisted by whatever special training and experience he possesses. Appellants’ attempt to conceal was dramatically inconsistent with any non-eul-pable inference that might have been drawn from their previous movements in the cab, even to an untrained observer. We hold that a reasonably prudent and cautious officer would have been justified in believing that his earlier suspicion of cocaine possession and use had been confirmed by appellants’ efforts at concealment.

We overrule appellants’ first ground of error.

SUFFICIENCY OF THE EVIDENCE

Appellants contend there is no evidence that they knew the substance was cocaine and no evidence that either of them had exercised control over it. The legal issue is whether a rational trier of fact could find beyond a reasonable doubt, from the evidence, that the two appellants each possessed the substance knowing it was contraband, the evidence being that described heretofore.

The evidence shows that each appellant handled the object which came to rest in Cote’s fist, and that he kicked the object under the van on his arrest. The object was shown to be a vial containing cocaine. The top to the vial was found on the console between the passenger and driver’s seats. We hold the evidence sufficient to sustain the proposition that each was aware of the vial and had, indeed, exercised physical control over it. See, e.g., Tatom v. State, 555 S.W.2d 459, 461 (Tex.Cr.App.1977); Hazel v. State, 534 S.W.2d 698, 703 (Tex.Cr.App.1976); Cf. Ramirez v. State, 365 S.W.2d 791, 792 (Tex.Cr.App.1963); Jones v. State, 371 S.W.2d 883, 884 (Tex.Cr.App.1963). The evidence justifies as well the implied finding that each knew the substance in the vial was cocaine. They were shown to have used the substance in a manner in which cocaine is inhaled; their movements were furtive on being discovered. These acts and Cote's kicking the vial under the van on being arrested suggest in the strongest terms that he knew it was contraband. Appellants’ cooperative movements with the vial, as described by the police officer, are not consistent with a theory that either was ignorant of the vial’s contents, but suggest instead a joint enterprise in intentionally using the contents of the vial in a manner consistent with the way cocaine is used. We overrule appellants’ second ground of error.

Finding no error as assigned, we affirm the judgments of the trial court.

      . The present case does not involve the principle of detention for questioning or other investigation, for the arresting officer testified that he had decided to arrest the appellants for possession of a controlled substance, a decision made at the moment he arrived at the door of the van. The State insists that the officer’s observations preceding that point were sufficient to constitute probable cause for the arrest that followed immediately.

      . The arresting officer’s experience and training were described in his testimony basically as follows: He had, on two or three previous occasions, "seen somebody that looks like they’re snorting cocaine.” He made an arrest for possession of cocaine on one of those occasions. He was, in addition, trained in police academy that a user of cocaine does so by leaning over, putting the container next to his face, and "snorts it up" his nose, "among other things” not described by the officer.


author: SHANNON, Justice.

text:
    John S. HANZELKA, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-169-CR.
    Court of Appeals of Texas, Austin.
    Nov. 21, 1984.
    Christopher M. Gunter, Fitzgerald, Meissner, Augustine & Alexander, Austin, for appellant.
    Margaret Moore, County Atty., Claire Dawson-Brown, Asst. County Atty., Austin, for appellee.
    Before SHANNON, EARL W. SMITH and BRADY, JJ.
   SHANNON, Justice.

Appellant John S. Hanzelka seeks to set aside a judgment of conviction for assault rendered by a county-court-at law of Travis County after a jury trial. The court assessed punishment of confinement in the county jail for one year. This Court will reverse the judgment of conviction.

On March 3, 1982, Hanzelka, a college youth, engaged in a fist-fight with another student at a hamburger stand near the University of Texas. For about an hour before the fight Hanzelka and a friend had been driving about the University drinking bourbon. Although Hanzelka claimed that he had taken only one drink, the investigating officer testified that immediately after the fight Hanzelka appeared intoxicated.

Although the evidence is conflicting with respect to whom initiated the fight, Hanzel-ka admitted that he landed the first punch. Of the two combatants, Hanzelka was the larger in size. There was evidence that after Hanzelka knocked down the complainant, he lifted the complainant by his hair and hit him three times in the face. After the fight Hanzelka was hardly scratched, whereas the complainant had a “very bloody” head, requiring stitches, and a bad black eye.

By a single ground of error Hanzelka claims that he was denied reasonably effective assistance of counsel in violation of the constitutions of Texas and the United States. The basis for this assertion is the fact that Hanzelka’s trial attorney failed to inform him of the prosecution’s "plea bargain” offer.

The State stipulated that the prosecutor made the offer in exchange for Hanzelka’s pleading “no contest” or “guilty” to the assault charge. The offer was that the prosecutor would recommend ten days in jail, probated for twelve months; $250.00 fine or eighty hours of community service work; and restitution to the complainant of $366.82.

The evidence and stipulations of the parties at the hearing on motion for new trial established that counsel did not inform Hanzelka of the plea bargain offer and that, had Hanzelka been so informed, he would have accepted the offer. Upon oral submission, counsel for the State candidly conceded that the trial court would have accepted the negotiated plea.

The issue presented is whether an attorney’s failure to inform his client of a plea bargain offer is such an error so as to deny the client effective representation of counsel where such failure to communicate results in a substantially greater punishment.

Since Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), it has been established that the Sixth Amendment to the Constitution of the United States guarantees an accused “effective assistance” of counsel. The most recent authority determining standards by which to evaluate whether counsel’s assistance is so ineffective as to require reversal of a judgment of a conviction is Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland the Court set out a two-part test to determine effectiveness of assistance. The accused must show (1) counsel’s performance was so deficient that he was not functioning as the “counsel” guaranteed by the Sixth Amendment; and (2) the deficient performance prejudiced the defendant.

The standard applicable to the first requirement is that of “reasonably effective assistance.” The accused must show that counsel’s representation fell below an objective standard of reasonableness. The objective standard referred to is that of “prevailing professional norms.” In discussing these professional norms, the Supreme Court stated:

In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) (“The Defense Function”), are guides to determining what is reasonable, but they are only guides. — U.S. at -, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

Following the Supreme Court’s directive, this Court turns to the pertinent provisions of the Texas State Bar Code of Professional Responsibility. Ethical Consideration 7-7 provides in pertinent part:

A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospects of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.

Ethical Consideration 7-8 states in pertinent part:

A lawyer should exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations.

“The Defense Function” referred to by the Supreme Court in Strickland contains standards of conduct for defense attorneys and sets forth standards pertaining to plea bargains:

In conducting discussions with the prosecutor the lawyer should keep the accused advised of developments at all times and all proposals made by the prosecutor should be communicated promptly to the accused. 1 Standards for Criminal Justice, Standard 4-6.2(a) (2d ed. 1980).

The commentary to Standard 4-6.2 provides:

Because plea discussions are usually held without the accused being present, the lawyer has the duty to communicate fully to the client the substance of the discussions. It is important that the accused be informed of proposals made by the prosecutor; the accused, not the lawyer, has the right to decide on prosecution proposals, even when a proposal is one that the lawyer would not approve. If the accused’s choice on the question of guilty plea is to be an informed one, the accused must act with full awareness of the alternatives, including any that arise from proposals made by the prosecutor. (Emphasis added)

Our search has not revealed that an appellate court in Texas has passed upon the issue whether the failure to communicate a plea bargain results in a denial of effective assistance of counsel; however, courts in other states have held that such failure denies an accused effective assistance of counsel. In Lyles v. State, 178 Ind.App. 398, 382 N.E.2d 991 (1978), the Indiana Court of Appeals held that the defendant was denied effective assistance of counsel where the State’s offer of one to five years sentence was not communicated to the defendant, and he was subsequently sentenced to ten years imprisonment. After citing the predecessor provision of Standard 4-6.2 of “The Defense Function”, the court stated:

In the case at bar, the defense counsel’s failure to communicate the State’s plea offer short-circuited the entire guilty plea process. This was not a matter of trial tactics or strategy, which do not automatically constitute incompetence. Magley v. State, (1975) 263 Ind. 618, 335 N.E.2d 811; Bucci v. State, (1975) 263 Ind. 376, 332 N.E.2d 94; Roberts v. State, (1975) 263 Ind. 53, 324 N.E.2d 265. This case involved a decision of the utmost importance: whether or not to plead guilty. In matters of such importance, the attorney has no option, he must advise his client of the proposed plea agreement. Here, this duty to advise was clearly and flagrantly breached. That Lyles was prejudiced ... is evident: he was sentenced to ten years, when he had an opportunity to plead to an offense with a recommendation of a one to five years sentence. 382 N.E.2d at 994. (Footnote omitted)

The Supreme Court of Indiana in Curl v. State, 272 Ind. 605, 400 N.E.2d 775, 777 (1980) adopted the ruling of the Indiana Court of Appeals in Lyles. (If defense counsel failed to inform defendant of a plea offer, the court would be compelled to reverse.)

The Court of Appeals of North Carolina in State v. Simmons, 65 N.C.App. 294, 309 S.E.2d 493 (1983) quoting from Lyles held that a failure to inform an accused of a plea bargain offer constituted ineffective assistance of counsel absent extenuating circumstances.

Relying upon the above authorities, this Court has concluded that Hanzelka was denied reasonably effective assistance of counsel. This Court has concluded further that counsel’s deficient performance prejudiced Hanzelka in that under the terms of the plea bargain he would not have served any time in jail.

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

      . Counsel on appeal did not represent Hanzelka at trial.


author: LEVY, Justice.

text:
    Nicholas S. RENZI, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-00268-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 21, 1984.

      Charles Medlin, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Lori B. Millberg, William T. Cornelius, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before LEVY, WARREN and COHEN, JJ.
   OPINION

LEVY, Justice.

This appeal is taken from a conviction for the felony offense of possession of marihuana. The trial court found the appellant guilty and, pursuant to a plea bargain, sentenced him to eight years confinement, probated, and a $1,000 fine.

The Pasadena Police Department received information on January 15, “1983”, from an undisclosed informant that appellant would be in possession of a quantity of marihuana and methaqualone on January 15, 1984. Officer Zink of the Pasadena Police immediately obtained a search warrant for appellant’s premises and executed the warrant on January 15, 1984. He found approximately thirty-five pounds of marihuana on appellant’s premises.

Appellant was arrested and charged by indictment with possession of marihuana in a useable quantity of more than five pounds and less than fifty pounds. Appellant’s motion to suppress was denied at the hearing. Shortly thereafter, appellant signed a stipulation of evidence and judicial confession. He then pled no contest to the charges pursuant to a plea bargain agreement.

Appellant argues in his first of three grounds of error that the trial court erred in overruling his motion to suppress, contending that the search warrant was issued on stale probable cause. The search warrant was apparently, but not actually, executed one year after the informant’s tip. The State argues that the 1983 date shown on the informant’s affidavit, upon which the warrant was predicated, was only a typographical mistake.

Article 44.02 gives the defendant a right to appeal the trial court’s adverse ruling on written pretrial motions after a plea of guilty under a plea bargain arrangement.

Tex.Code Crim.P.Ann. art. 44.02 (Vernon 1977) provides:

A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court, except on those matters which have been raised by written motion filed prior to trial... (Emphasis supplied).

For the defendant to preserve appellate review of the trial court’s adverse ruling on his pretrial motion to suppress, the record must show, according to the test set forth in Gano v. State, No. 07-82-00229-CR (Tex.App.—Amarillo, February 8, 1984) (not yet reported):

(1) existence of a plea bargaining agreement with the State, Galitz v. State, 617 S.W.2d 949, 951 (Tex.Crim.App. 1981);
(2) punishment assessed by the trial court at or within that recommended by the prosecutor, Id., at 951; and
(3) the absence of any independent evidence to support the plea of guilty, such as a judicial stipulation or admission of guilt which relieved the State from the burden of introducing the challenged evidence to support that conviction.

The record reflects that the appellant judicially stipulated to the commission of the offense, which is evidentiary support for his conviction independent of his plea of nolo contendere. The document is entitled “Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession.”

A judicial confession alone is sufficient to sustain a conviction. Dinnery v. State, 592 S.W.2d 343, 353 (Tex.Crim.App.1979); Ferguson v. State, 571 S.W.2d 908, 910 (Tex.Crim.App.1978); Cervalles v. State, 513 S.W.2d 865, 866 (Tex.Crim.App.1974). In view of appellant’s judicial stipulation to the commission of the offense, any error alleged in appellant’s motion to suppress is harmless. Mooney v. State, 615 S.W.2d 776, 777 (Tex.Crim.App.1981); Young v. State, 622 S.W.2d 582, 583 (Tex.Crim.App.1981); Gano v. State, supra. We further note that no material obtained as a result of the search complained of was ever introduced into evidence, thus making a review of the denial quite academic, if not pointless. Ferguson v. State, supra; Mooney v. State, supra. The first ground of error is overruled.

Appellant’s second ground of error alleges that appellant’s plea of no contest was conditional and involuntary, in that the trial court agreed with appellant that he had a right to appeal the merits of his pretrial motion to suppress.

During the hearing on appellant’s plea of no contest, but before formally entering his plea, appellant’s counsel and the court engaged in a lengthy colloquy, within the presence of the appellant, concerning appellant’s right to appeal the suppression issue. The Court made some ambiguous statements fairly implying that appellant had a right to appeal even though the Court was reluctant to enter into a formal agreement with respect thereto. Appellant principally relies on the following exchange:

MR. MEDLIN: I understand Judge, I mean no disrespect for you.
THE COURT: I understand that, I do.
MR. MEDLIN: We are interested in appealing the search issue.
THE COURT: I understand. You have a right under the Law. By all means you should pursue it.

The appellant contends that the instant case is similar to Wooten v. State, 612 S.W.2d 561 (Tex.Crim.App.1981), holding that a guilty plea will be considered conditional and involuntary when the trial court erred in accepting a guilty plea made in misplaced reliance on an agreement that an issue can be raised on appeal. In Wooten, the trial court incorrectly assured the appellant that he could appeal his pretrial speedy trial motion when it was no longer available to him after appellant had pled guilty. The State argues that the case at bar is distinguishable from Wooten in that the appellant, Renzi, had not entered his no contest plea at the time that the Court suggested that he had a right to pursue an appeal. The distinction as to sequence is inconsequential in evaluating the controlling question: Was the plea of nolo conten-dere induced by an agreement between the State and the appellant, and approved by the court, that an issue could be appealed when the law makes it impossible to fulfill the agreement?

In Mooney, the trial court made incorrect assurances to the appellant that he could appeal a written pretrial motion to suppress even though appellant pled nolo contendere, stipulated to the commission of the offense, and the stipulations were admitted into evidence. Although the record herein reflects that the trial court did not give such an explicit assurance, the court’s statements were nevertheless of such a nature as would induce a reasonable belief that appellant had a right to appeal the court’s denial of his motion to suppress, and thus conditioned and made involuntary his plea.

The second ground of error is sustained.

The appellant’s third and final ground of error alleges that appellant’s plea of no contest was conditional and involuntary in that the trial court failed to admonish appellant that his judicial confession and stipulation, although sufficient to sustain his conviction, would foreclose his right to appeal the merits of his pretrial motion to suppress.

The record reflects that the trial court did not inform appellant that he would be foreclosed from appealing the merits of the written pretrial motion to suppress. Texas Courts of Appeals have found an appellant’s plea to be conditional and involuntary where the trial court failed to admonish the appellant as to the nullifying effect his stipulation of evidence and judicial confession would have on his right to an appeal on the merits. Stinson v. State, 658 S.W.2d 820 (Tex.App.—Fort Worth 1983, pet. granted); Gomez v. State, 665 S.W.2d 849 (Tex.App.—Corpus Christi 1984, pet. granted); Morgan v. State, 656 S.W.2d 171 (Tex.App.—San Antonio 1983, pet. granted); and Zappas v. State, 650 S.W.2d 131 (Tex.App.—Houston [14th Dist.] 1983, pet. granted). Unless and until the Court of Criminal Appeals decides otherwise — and the issue is presently pending there — we conclude that such an admonition by the trial judge is necessary under these facts; an appellant’s guilty plea without such admonition can only be considered as involuntary and conditional.

The third ground of error is sustained.

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


author: JACK SMITH, Justice.

text:
    J.D. TAYLOR, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0319-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 21, 1984.
    Craig A. Washington, Craig A. Washington & Associates, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Becky Gardner, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and DUGGAN and JACK SMITH, JJ.
   OPINION

JACK SMITH, Justice.

The trial court convicted appellant of possession of cocaine and assessed his punishment at two years confinement. Appellant brings two grounds of error on appeal.

In his first ground of error, appellant asserts that the trial court erred in failing to grant his motion to suppress. He urges that the warrantless search of his automobile was not made incident to his lawful arrest.

The arresting officer testified that he and his partner saw appellant driving his pickup truck down the wrong side of a two-way residential street in Houston. As appellant turned onto another street, the officers turned on their emergency equipment, but appellant continued to drive another three to four blocks before stopping. During this time, the arresting officer observed appellant and his passenger through the rear window of the pickup truck. The officer testified that appellant reached behind himself as if he were reaching in his back pocket and then looked over his right shoulder. Although the officer could not see appellant’s hands, he was able to observe the upper part of appellant’s torso down to the shoulder blades. The officer stopped appellant for driving on the wrong side of the road. The arresting officer approached the driver’s window, and his partner approached the passenger’s window. The arresting officer asked appellant to get out of the truck, and step to the rear of the truck. Because appellant was driving on the wrong side of the street, the arresting officer testified that he thought appellant might be drunk, and the officer conducted a field sobriety test. After he decided that appellant was not intoxicated, he patted down appellant for weapons. He asked the dispatcher to check appellant for outstanding warrants, and then left appellant standing at the back of the truck and approached the passenger’s window to talk to his partner. The arresting officer shined his flashlight into the cab of the truck, and observed on the floor board on the driver’s side a clear cellophane package which contained a white powdery substance. The officer testified that he thought the white substance was cocaine, and he requested the passenger to step out of the truck. He then picked up the package and arrested appellant for possession of cocaine. At that time, he determined that appellant was the owner of the truck by checking with the police vehicle registration department and also by questioning the appellant.

The arresting officer’s partner corroborated this testimony, and testified that he had shined his flashlight into the cab of the truck when he approached the passenger side. He did not observe the cellophane package on the floor board until the arresting officer pointed it out to him. He said he could not have seen it from where he was originally standing.

Appellant urges that the officers had no justification for searching his pickup because the search was not reasonably necessary to protect the officers from bodily injury. However, the officers did not search appellant’s truck. The Court of Criminal Appeals has held that contraband contained in a cellophane bag found on the floor board of an automobile in plain view may be properly admitted into evidence. Nickerson v. State, 660 S.W.2d 825 (Tex.Crim.App.1983). The officers in the instant case had a right to be where they were, and saw the cocaine in plain view on the floor of the pickup truck. Appellant’s first ground of error is overruled.

In his second ground of error, appellant asserts that the trial court erred in finding that the evidence was sufficient to establish that appellant had possession of the cocaine. The evidence showed that appellant was the owner of the truck, and that the cocaine was located on the driver’s side on the floor of the pickup. It further showed that, after the officers had turned on their emergency equipment, including their spotlights, the appellant continued to drive for three or four blocks, and he was observed turning his body as if he was removing something from his rear pocket.

Deshong v. State, 625 S.W.2d 327 (Tex.Crim.App.1981), is similar to the instant case. In Deshong, the defendant was stopped for driving erratically. As the officer opened the driver’s door to the car, he noticed a plastic baggie containing what he believed to be marijuana on the floor board of the car between the door and the driver’s seat. The car was used as a delivery vehicle in the defendant’s business, and others had access to the vehicle. The defendant had a passenger with him, but the court found that the evidence was sufficient to support his conviction. Describing the test to be used, the court stated:

When the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused with the contraband.

625 S.W.2d at 329. In the instant case, the cocaine was discovered on the driver’s side of the floor board, and appellant was the owner of the truck. Appellant argues that Deshong is distinguishable because the contraband in that case was located in a position inaccessible to the passenger. Appellant cites Baltazar v. State, 638 S.W.2d 130 (Tex.App.—Corpus Christi 1982, no pet.), in which the court held that the evidence was not sufficient to exclude the-possibility of possession by another. In that case, the officers stopped the defendant on suspicion of a robbery, discovered gambling paraphernalia on his person during a pat-down search, and arrested him. The defendant’s passenger was allowed to depart. When the defendant’s vehicle was impounded and searched, an envelope of cocaine was found in a tissue box on the dashboard of the car. The court held that the evidence was insufficient to prove that the defendant had possession of cocaine, noting:

It is true that the area of the automobile in which the substance was found, i.e., on the dashboard, was convenient to appellant and rendered it readily accessible to him. This one circumstantial link, however, is not sufficient. We do not feel that the circumstances presented exclude with any degree of certainty every other reasonable hypothesis except appellant’s own unlawful possession.

638 S.W.2d at 132 (citations omitted). The court in Baltazar also noted that there was no evidence regarding ownership of the car that the defendant was driving at the time of his arrest, no evidence as to how long the car had been in the defendant’s possession, and nothing to indicate that the defendant had sole access to the automobile. In the instant case, the arresting officer testified that appellant was the owner of the truck, that the cocaine was located on the driver’s side of the truck, and that appellant’s movements just before his arrest indicated that he was removing something from his pocket. There is no evidence that appellant’s passenger was ever aware of the cocaine. We find that this evidence, although circumstantial, was sufficient to link appellant with possession of the cocaine. Appellant’s second ground of error is overruled.

The judgment of the trial court is affirmed.


author: OSBORN, Justice.

text:
    Arturo ALMANZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 08-84-00054-CR.
    Court of Appeals of Texas, El Paso.
    Nov. 28, 1984.

      Robert Perel, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty., El Paso, for appellee.
    STEPHEN F. PRESLAR, C.J, and WARD and OSBORN, JJ.
   OPINION

OSBORN, Justice.

This is an appeal from a conviction for murder. The jury assessed punishment at sixteen years imprisonment. We affirm.

On August 21, 1981, the Appellant together with Fernando Almanzar, Oscar Alvarado and Saul Alvarado drove to Fabens, Texas, from their nearby homes in San Elizario. They encountered a rival gang and in an ensuing brawl (described in more detail below), Frank Sierra, Jr., was stabbed some twelve times. He died as a result of a stab wound to the heart, with contribution from a severe brain injury produced by blunt instrument trauma to the temple. The Almanzars and Alvarados were arrested later that night, and all were charged with this offense. Appellant and the Alvarados engaged the services of San-tiesteban and Juarez in their defense. Fernando Almanzar obtained other counsel. Attorneys Jose Juarez and Judy Sanders (an associate of Santiesteban and Juarez) carried out the actual pretrial preparation of the defense for Appellant and the Alvar-ados. In mid-September, the prosecuting authority contacted Ms. Sanders and presumably Mr. Juarez and offered immunity to the Alvarados in exchange for their grand jury and trial testimony. Mr. Juarez discussed the offer with the Alvarados and they accepted. They testified before the grand jury with Mr. Juarez in attendance for consultation. As a result, Appellant and Fernando Almanzar were indicted. At trial, the Alvarados were called as State’s witnesses. Fernando Almanzar was convicted of murder and received a thirty-year sentence, affirmed by this Court in Almanzar v. State, Cause No. 08-84-00044-CR, (November 28, 1984) (unpublished). Appellant received a sixteen-year sentence. Throughout the trial, Appellant continued to be represented by Ms. Sanders on behalf of Santiesteban and Juarez.

After conviction, Appellant obtained new counsel and filed a motion for new trial, alleging conflict of interest on the part of his trial counsel. The motion was overruled on December 9, 1988.

Admittedly, our first impression was that this case presented the clearest possible conflict of interest in the joint representation of Appellant and the Alvarado brothers. A detailed examination of the grand jury testimony, the trial testimony, Appellant’s confession, objections, final argument and the motion for new trial record ultimately dispelled that preliminary reaction. There is no dispute as to the applicable law governing appellate review of conflict of interest. An attorney may not serve two masters with adverse interests. Where one defendant-client stands to gain from an act of representation producing injury to another defendant-client, actual conflict of interest exists. Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Guyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Glosser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). On appeal, it must be shown that an actual conflict of interest adversely affected the performance of counsel and the adequacy of the representation afforded. Upon such a showing, resulting actual prejudice or injury need not be demonstrated. Ex parte Acosta, 672 S.W.2d 470 (Tex.Crim.App.1984).

A careful examination of the record reveals that despite a serious potential for conflict before trial, there was in fact no actual conflict between Appellant and the Alvarados. There was a conflict between the Alvarados and Fernando Almanzar, which tends to cast a pall of conflict over the entire case, particularly as a result of the self-defense issue.

The defense theory, supported by the evidence, was that the four drove to Fa-bens to meet Saul Alvarado’s girlfriend, pick up some other girls and go to a movie. Fernando was driving, Saul Alvarado was in the front seat, and Appellant and Oscar Alvarado in the rear. They were confronted by approximately seven “cholos” from a Fabens gang on foot. Probably due to prolonged conflicts between gangs from these adjacent towns, the Fabens group began to throw rocks and bottles at the Almanzar car. Fernando Almanzar made several turns initially to evade the Fabens groups. They reencountered them on an adjacent street. The car veered into the group, struck one and then encountered a cinder block wall. Appellant and the Al-varados testified that they were not sure if Fernando had intentionally driven into the group. A thrown cinder block had just shattered the windshield and it appeared that he either lost control of the car or could not see. Fernando testified that the latter explanation was the true cause.

When the car struck the wall, Frank Sierra and his companions attacked. Sierra reached in the front passenger window and made stabbing motions at Saul Alvarado. Only the Appellant actually saw a blade in Sierra’s hand. From the back seat, Oscar Alvarado used a set of “numchuks” on Sierra’s arms to keep him away from Saul. Fernando Almanzar and Appellant exited the left side of the vehicle. Fernando dragged Sierra away from the right side of the car but was then beset by Sierra and two others from Fabens. Getting the worst of the encounter and receiving a stab wound to his arm, he drew and opened his own pocket knife and admittedly stabbed at Sierra. He testified that he believed he struck him twice. Meanwhile, Appellant, seeing Fernando in trouble, came to his aid by striking Sierra in the head with a baseball bat taken from the back seat of the vehicle. The Alvarados exited the vehicle and gave further assistance to the Alman-zars. Fernando drew Appellant back to the car but not before Appellant delivered a few final kicks and bat blows to the lower portion of Sierra’s prone body. Fernando testified that as he and Appellant reentered the car, Saul Alvarado was crouched above Sierra making stabbing like movements at his chest. Once in the vehicle, Fernando admitted stabbing Sierra and exhibited his bloody knife. Oscar Alvarado cleaned it and returned it to Fernando who later gave it to Saul Alvarado for disposal. Instead, Saul kept it and it was recovered by the Sheriff’s deputies. Saul admitted ownership of another knife found at the scene, but denied using it or stabbing Sierra.

The State presented two witnesses from the rival Fabens gang who denied any rock-throwing provocation. Based on their testimony and the potentially inculpatory evidence from the Alvarados and Almanzars, the State presented the Appellant and his companions as the aggressors, intentionally trying to run down the Fabens group in the vehicle.

The jury received instructions with regard to party responsibility, accomplice testimony and self-defense in the face of actual or apparent danger. The only conflict in testimony from the Alvarados and Alman-zars is with regard to Saul Alvarado’s possible infliction of stab wounds upon Sierra at the conclusion of the fight. Only Fernando presented such a scenario. On the other hand, Saul, Oscar and Appellant all heard Fernando admit stabbing Sierra and saw his bloodied knife. At trial, Fernando admitted stabbing at Sierra and believed he struck him twice. This conflict, however, only pertains to Fernando and Saul. In no way does it present a conflict between Appellant and the Alvarados. In fact, it presents no conflict at all unless the self-defense presentation fails.

On the other hand, Appellant’s participation is uniformly described by his extrajudicial written confession which he reaffirmed at trial, the grand jury testimony of both Alvarados and the trial testimony of all four. The stab wound to the heart was the undisputed cause of death. Appellant was either not guilty by reason of self-defense or guilty as a party. He consistently admitted striking Sierra with the baseball bat in order to aid Fernando, and that same act was similarly described by his companions. Consequently, the Alvarados’ grand jury and trial testimony furthered the defensive theory of self-defense. Only if that failed would a conflict arise on the defense side and then only between Saul Alvarado and Fernando Almanzar.

Confronted with a confession by Appellant which could be presented in an edited fashion by the State and potential witnesses from the other gang who would deny any provocation, Appellant’s counsel, Ms. Sanders, had to find the most credible manner of placing self-defense before the jury. Obviously, she could move to introduce the remainder of Appellant’s confession and place him on the stand, with self-interest on his part as the negative credibility factor. Whether Fernando would take the stand and present the self-defense scenario was in his hands subject to advice of his counsel. Along comes the State and offers to immunize her other two clients in exchange for their testimony. From pretrial interviews, their testimony would bolster the self-defense theory and present no additional or conflicting harm to the Appellant— Fernando yes, but her third client no. Furthermore, their testimony as to self-defense would bear a certain stamp of State endorsement. In fact, this is one of those cases in which the State presents exculpatory evidence in its case-in-chief and then must rebut it in order not to be bound thereby. The grand jury and trial testimony of the Alvarados was consistent with the self-defense expectations of counsel and presented no conflict with Appellant’s interests.

Appellant’s present counsel castigates trial counsel for not conducting a more vigorous cross-examination of the Alvara-dos. It was in her third client’s interest not to do so. If she assisted in developing a theory that Saul dealt the death blow, she would help Fernando, not her client. Any attack on the credibility of the Alvarados would weaken their self-defense credibility as well, which was working to her client’s full benefit. What she would have accomplished had she done so would be to expose her third client to liability as a party to either Fernando’s or Saul’s primary liability. In final argument also, it was to her client’s advantage not to assail the credibility of the Alvarados.

Not only was there no actual conflict of interest, but the immunity and State’s use of the Alvarados enhanced Appellant’s self-defense posture, which was his only defense. That defense failing, his own confession and testimony rendered him guilty regardless of the conflict between Saul Alvarado and Fernando Almanzar.

Our conclusions are the peculiar result of the evidentiary development of this case by both sides. It is appropriate, however, to express a final word of caution concerning the dangers of multiple representation in a criminal defense, the close scrutiny which trial judges and lawyers should apply to such situations and the need for communication and explanation of potential conflicts to clients in advance of trial. Retrospectively, this case presents no actual conflict and no diminution of defensive representation. We would hope, however, that all participants seek and arrive at such a conclusion prospectively in such cases. Ground of Error No. One is overruled.

The judgment is affirmed.