author:
McCORMICK, Judge.
      TEAGUE, Judge,

text:
    Antonio Nathaniel BONHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 68928.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 21, 1984.
    Rehearing Denied Feb. 20, 1985.

      Robert A. Shults, Kristine C. Woldy, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. and Winston E. Cochran, Jr., Rusty Hardin and Wilford Anderson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

This is an appeal from a conviction for capital murder. Punishment was assessed at death.

This case originally came before us in November of 1982. Appellant raised three grounds of error relating, to the sufficiency of the evidence, the sufficiency of the indictment, and the voluntariness of his confession. On January 18, 1983, the appeal was abated because the trial court had made no written findings of fact as to the voluntariness of appellant’s confession in accordance with Article 38.22, V.A.C.C.P. Bonham v. State, 644 S.W.2d 5 (Tex.Cr.App.1983). The cause is now before us again with a supplemental transcript containing the trial judge’s written findings of fact and conclusions of law. We now turn to the merits of the case.

Appellant contends that the evidence is insufficient to prove that he acted intentionally in causing the death of the victim. Appellant argues that, although he admitted in his written confession that he ran over the victim with the car, his confession does not contain a clear statement of intent. Furthermore, he argues the State’s other evidence does not show an intent to kill and thus the evidence is insufficient to satisfy the element of the requisite culpable mental state.

The pertinent part of the indictment under which appellant was convicted reads as follows:

"... the Defendant, heretofore on or about July 9, 1981, did then and there unlawfully while in the course of committing and attempting to commit the Aggravated Robbery of Marie Jones McGOWEN, hereafter styled the Complainant, intentionally cause the death of the Complainant by driving an automobile over the Complainant’s body.”

According to appellant’s confession which was introduced into evidence at trial, the victim, a sixty-two year old instructor at Massey Business College in downtown Houston, arrived at the college at approximately 7:00 a.m. on July 9, 1981.

The appellant ambushed the victim on a sidewalk outside the business college and hit her on the back of the head with a brick, causing her skull to be fractured. The appellant then laid the victim in some bushes, took her car keys and drove her car up to the sidewalk. He placed the victim, who was apparently bleeding very badly, in the trunk of the car. According to appellant’s own confession, he then proceeded to drive to a location where he raped the victim. After raping her, appellant drove the victim to a sparsely populated area on Schurmier road. There he put the victim out of the car and as she was sitting on the side of the road, he ran over her with the car. Evidence showed that when he struck her with the car, the car became lodged on the body. After unsuccessfully trying to back the car off the victim, appellant then put the car in reverse. When this did not work, appellant abandoned the car, leaving the victim crushed under the car.

Other evidence adduced at trial showed that when other business college instructors and students arrived at Massey Business College that morning they found Mrs. McGowen’s personal belongings scattered around the ground and a pool of blood on the sidewalk. The police were called as was Mrs. McGowen’s husband. Later that afternoon, at approximately 4:00 p.m., Officer W.J. Roper, who was on regular patrol, found Mrs. McGowen’s car on Schurmier Road. Believing it to be an abandoned stolen car, he ran a check on the license number and found it as being wanted in a possible homicide. Homicide detectives were called as was Mrs. McGowen’s husband. Officer Roper testified that when he found the car, it was partially in the ditch. Looking inside the car, Officer Roper saw a brassiere and a pair of woman’s underwear in the back seat of the car. There was blood on both the front and back seats of the car. The officer also found blood on the front of the car. As Officer Roper walked around to the ditch-side of the car he found that the rear wheel of the car was mired in mud and a brief case had been placed underneath the rear wheel as if an attempt had been made to drive the car out of the mud.

Two people who lived or worked in the area told police that they had seen a black male driving Mrs. McGowen’s car along the road between 11:15 and 11:30 that morning. Both men testified at trial that the driver of the car was a black male with short hair who appeared to be sitting very low in the seat. One of the two positively identified appellant as the driver of the car. Another witness, Oliver Ruble, testified that he left his home on Schurmier Road between 11:30 a.m. and 11:45 a.m. on the morning of July 9. He noticed that a car later identified as belonging to the victim had become stuck in the ditch. Ruble related that he got out and looked to see if anyone was in the car and needed assistance, but there was no one in the car.

When Mrs. McGowen’s husband reached the scene, he found police searching the surrounding area for his wife’s body. Mr. McGowen gave the police his set of car keys and when they looked in the trunk, they found blood smeared all over the inside of the trunk. McGowen testified that when he saw the briefcase underneath the rear tire, he wanted to make sure it belonged to his wife so he squatted down in the ditch and saw that his wife’s body was pinned underneath the car.

Homicide detectives who were at the scene when the victim’s body was found testified that the car was sitting so low that it was impossible to see underneath the car without kneeling down on all fours. After Mr. McGowen had spotted his wife’s body, but before the wrecker lifted the car off the body, there was no clearance under the car for anyone to even reach under the car. Detectives found no skid marks at the scene and there was no evidence to indicate that the car had slid into the ditch. Finally, officers testified that when the body was finally recovered the victim’s wedding ring, gold necklace and purse were missing.

Detective G.C. Shultz testified that appellant was arrested at his father’s house on July 17, some eight days after the commission of the offense. After being in custody a short time, appellant agreed to give a written statement. Shultz testified that appellant appeared to be very calm and collected and showed no remorse when giving his confession.

The autopsy report showed that Mrs. McGowen’s death was caused by a fracture to the skull, a crushed chest and a broken neck all sustained when she was run over by the car. In addition as a result of being run over by the car, she sustained contusion hemorrhages and lacerations of the brain, subdural and epidural hemorrhage and hematoma, a fractured pelvis, open crushing fractures of the ankles, multiple contusions and lacerations of the head, trunk, back and extremities, and burn lesions of the back, left hip and left elbow. As a result of the sexual assault upon her by appellant the victim also suffered contusions, hemorrhage and lacerations of the external genitalia. Dr. Eduardo Bellas, the assistant medical examiner who performed the autopsy, testified that Mrs. McGowan’s head injuries were consistent with being hit on the right side of the head with a car bumper. The crushing wounds to the victim’s ankles were consistent with being rolled over by an automobile tire. Finally, he testified that the injuries to the victim’s genitalia indicated that forcible intercourse had occurred prior to the victim’s death.

Finally, Sgt. Steve Fowler of the Houston Police Department, who testified that he was trained in the field of accident reconstruction, testified that in his expert opinion the ear bumper struck the right side of the victim’s head as she was in a semi prone or sitting position. The victim was thrown on to her left side and her legs automatically tucked up underneath her. The vehicle then came to rest upon the victim’s body. The vehicle was then put in reverse and the victim was then rolled over onto her right side, still in a tucked up position. Fowler testified that this body movement was evident from the presence of burns on the body apparently from the exhaust pipe and catalytic converter. The car again became stuck upon the body and the weight of the car began compressing the body into the ground. At this point the car was again put into forward gear, evidenced by the fact that a portion of the victim’s blouse was caught up on the undercarriage of the car and pulled in a forward motion away from the victim’s body.

In analyzing the sufficiency of the evidence the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Cr.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex.Cr.App.1983). It must also be remembered that the jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980). The State argues correctly that this function extends not only to live testimony from the witness stand but also to statements made in written confessions which are introduced into evidence at trial. Clearly from their verdict, the jury chose to disbelieve appellant’s exculpatory statements made in his written confession and introduced into evidence by the defense. That is their prerogative and we can not disturb their finding.

If we were looking at one act alone, the mere running over of a pedestrian, we would have trouble in saying that the jury was correct in their finding of the proper intent. However, we are not operating in a vacuum. This offense started with a brutal assault and abduction compounded by the forcible rape and robbery of the sixty-two year old victim. It is hard to believe that after completing these horrendous acts upon his victim that appellant would drive to a sparsely populated area on the outskirts of Houston with the intent to release his victim and urge her to go for help. Furthermore, there is nothing in the record to suggest that after appellant ran over Mrs. McGowan with the car that he did anything to assist her. The evidence shows that appellant did not seek help for Mrs. McGowan. Indeed it took police officers eight days to track down the appellant and when he was confronted with his deeds and finally did admit them, appellant remained calm and collected and showed no type of remorse. From the evidence before us, we find the jury acted rationally in finding an intent to kill and we overrule appellant’s challenge to the sufficiency of the evidence.

In his second ground of error, appellant argues that the indictment is fundamentally defective. As noted above, appellant was charged with committing a murder while in the course of committing aggravated robbery. Appellant argues that since V.T.C.A., Penal Code, Section 19.03(a)(2), only lists robbery as an aggravating offense in the capital murder statute, an allegation of aggravated robbery as an aggravating offense is an illegal expansion upon the statute.

The offense of aggravated robbery includes all the elements of robbery. V.T. C.A., Penal Code, Section 29.03. Thus, technically speaking, if one commits the offense of aggravated robbery, he is also guilty of committing the offense of robbery. The logical extension of this reasoning is that if one intentionally or knowingly causes the death of an individual in the course of committing or attempting to commit aggravated robbery, he is guilty of capital murder just as if such killing occurred while in the course of committing or attempting to commit robbery. We find that the indictment was not fundamentally defective. See Carter v. State, 650 S.W.2d 843 (Tex.App.—Houston (14th Dist) 1982), affirmed on other grounds, 650 S.W.2d 793 (Tex.Cr.App.1983); Howard v. State, 650 S.W.2d 460 (Tex.App.—Houston (14th Dist) 1982), affirmed on other grounds, 667 S.W.2d 524 (Tex.Cr.App.1984).

Finally, appellant contends that his written confession was improperly admitted into evidence as it was not voluntarily given but was the product of psychological coercion, deceit, fraud and trickery on the part of Detective Shultz.

The record shows that appellant was sleeping at his father’s house during the early morning hours of July 17, when he was awakened by his father and told that the police were outside. When his father opened the door, the police came in with guns drawn and arrested him for the instant offense. Appellant was read his rights and taken to the police station. There Detective Shultz began discussing the case with him. After a short time appellant gave an oral confession. Thereafter he gave a written statement which was introduced into evidence during the trial of this cause. Appellant now contends that the evidence adduced at the hearing on the motion to suppress is uncontroverted that Detective Shultz induced the written confession by promising him a life sentence rather than the death penalty if he gave a written confession, and also deceived him into believing after their oral conversation about the offense that it would not make any difference if he made a written confession.

We will look first at appellant’s contention that Detective Shultz promised him a life sentence if he gave a written confession. Appellant testified on direct examination at the hearing on his motion to suppress:

“Q. Did they ever show you any photographs?
“A. They did.
“Q. Were those photographs of the scene you heard described in this trial at the area of Massey Business College?
“A. That’s true.
“Q. And did they make any remarks to you about those photographs or what might happen to the person involved or anything like that?
“A. Detective Schultz (sic) told me, he said, “These are the pictures the jury is going to see and they are going to determine what type of punishment you will get. And by making a statement you would get a life sentence rather than death.
“Q. When he told you making a statement might help you get a life sentence instead of a death sentence, what did you do as a result?
“A. Well, I considered if I was to be prosecuted for the charge I would rather a life sentence than a death.”

On cross-examination, when the prosecutor asked appellant how Detective Shultz had threatened him, appellant replied:

“A. Told me whether I committed the charge or not I was going to be charged with it, and I was a dead man and bought and paid for by the State of Texas, and’ if I didn’t give a statement he was going to see to it I get a death penalty.
“Q. He told you he would get you life?
“A. He didn’t say that.
“Q. What did he say?
“A. He said that the jury — by giving a statement the jury wouldn’t give me the death penalty but would give me life because there is only two sentences.”

Detective J.W. Ladd testified that he was asked to witness appellant’s signature on the written statement. Detective Ladd testified that when he entered the room, he asked appellant if he (appellant) had read the statement. When appellant replied that he had, Detective Ladd then had appellant read the warnings at the top of the statement out loud in order to make sure that appellant could read. Appellant also told Ladd that he understood his rights. Finally, Ladd asked appellant if he had been threatened or promised anything in return for making the statement. Appellant replied that he had not been threatened and had not received any promises. These events were also testified to by Detective Shultz and Patricia Key, a stenographer in the homicide division who also witnessed appellant signing his written statement. We also note that appellant’s written statement concludes with this last paragraph:

“I went to the 9th grade in school. I can read and write the english (sic) language. I have read the above statement and it is ture (sic) and correct. I have given this statement to Detective Schultz (sic) of my own free will no threats or promises were made to me to make this statement.” (Emphasis Added)

At trial Detective Shultz testified that at no time did he ever threaten appellant or offer him some kind of deal in exchange for his confession.

The trial judge made detailed findings of fact and conclusions of law regarding appellant’s motion to suppress the confession. This includes a specific finding that “[a]t no time up to, during, or after signing State’s Exhibit 132 was the defendant threatened or promised anything in return for his confession.” The trial judge went on to write:

“12. The Court does not find credible the defendant’s contention that he was threatened, coerced, and told he would get a life sentence if he gave a written confession. The Court closely listened to and observed all the witnesses and testimony offered during the Motion to Suppress the confession and during the trial before the jury. When the Court assessed the credibility and weight to be accorded the witnesses’ testimony, as well as reviewing State’s Exhibit 132, the Court did not find believable the defendant’s testimony offered in his Motion to Suppress hearing.”

Although appellant contends his allegation was uncontroverted, we disagree. Appellant’s reliance on Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Farr v. State, 519 S.W.2d 876 (Tex.Cr.App.1975); Sherman v. State, 532 S.W.2d 634 (Tex.Cr.App.1976); and Smith v. State, 547 S.W.2d 6 (Tex.Cr.App.1977) is misplaced. In those cases, there was a complete absence of evidence rebutting specific allegations of the defendants. In the instant case, we find that the language of the last paragraph of appellant’s written statement along with the testimony of Detective Schultz, Detective Ladd, Patricia Key and even of appellant on cross-examination rebutted appellant’s allegation.

The trial judge is the trier of fact at a hearing on the voluntariness of a confession. He is the exclusive judge of the credibility of the witnesses as well as the weight to be afforded their testimony. Barton v. State, 605 S.W.2d 605 (Tex.Cr.App.1980); Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977). We find that the record, including appellant’s own testimony on cross-examination, amply supports the trial court’s finding that appellant was not promised a life sentence in exchange for his confession.

Next we consider whether Detective Shultz made a misstatement of the law regarding oral statements and written statements which induced appellant to make a written statement. During direct examination at the hearing on the motion to suppress, the prosecutor questioned Detective Shultz as follows:

“Q. When he finished telling you what had happened orally, what was said or done next?
“A. After that, I asked if he wanted to put this in writing and he said that he might as well. I said that he— he asked would it make any difference if I put this in writing. I said it would make no difference whatsoever. ‘You are charged with capital murder. Capital murder is punishable by death in the State of Texas; and if you make this confession, it is going to be used against you in court.’
“Q. What did he respond?
“A. He said, T promised myself when I got out of the pen the last time that the next time I went up I was going to make it a federal rap.’ but he said, T didn’t make it, did I?’ I said, ‘No.’ I said, ‘It is a state charge.’ The only thing this time was that if convicted he would go to death row.”

On cross-examination, Detective Shultz reiterated:

“A. He asked if it would make any difference if he made a statement. I advised it would not, that all this would do would be to put down his side of what he wanted to put down as to what took place out there.”

Appellant did not testify on direct regarding Shultz’s statement to him concerning an oral versus a written confession. On cross-examination, however, he admitted that as a result of his prior experience with the criminal justice system, he knew that a written confession would be used against him in court.

As noted above, appellant is now contending that Shultz misstated the law regarding oral and written confessions and this misstatement of the law caused him to make his written statement. The trial judge in his findings of fact and conclusions of law addressed this contention as follows:

“... The Court finds that the intent and apparent meaning of Schultz’s (sic) statement was that the charge filed would be the same, whether or not the defendant signed a written statement. The Court finds that the defendant was not misled by a false impression of the admissibility of an oral statement versus a written one...

We have thoroughly reviewed the record and find that it supports the trial judge’s conclusion. Nowhere in the record is there anything that suggests that Detective Schultz was referring to the admissibility of the statements and nowhere in the record is anything in the record to suggest that the appellant interpreted Detective Schultz’s remarks to refer to the admissibility of the statements.

We find the confession was made voluntarily and properly admitted into evidence. This ground of error is overruled.

The judgment is affirmed.

TEAGUE, Judge,

dissenting.

When a police officer induces an accused to give a written or oral confession by virtue of a misstatement of the law concerning the admissibility of the confession, the prosecution has got problems in attempting to either get the confession admitted into evidence or, if is admitted into evidence, to convince an appellate court to sustain the trial court’s action.

In this instance, the State concedes that the police officer who took appellant’s confession misstated the law to appellant with regard to the admissibility of an oral statement that appellant had made to him. The record clearly reflects that prior to taking appellant’s written confession, the officer who took the confession told appellant that “it would make no difference whatsoever” whether appellant’s statement was reduced to writing or was made orally.

As a matter of law, however, because no evidence was discovered by reason of appellant’s oral statement, the only way appellant's oral statement could become admissible evidence against him was if the oral statement was reduced to writing and signed by the appellant. Thus, in order to induce appellant to give the written confession, the officer who took appellant’s written confession lied to appellant, either intentionally or through ignorance. It is now time for the State to pay the piper for the officer’s erroneous advice.

However, the majority declines to penalize the State; instead, it erroneously, without any basis therefor, awards the prosecution for the officer’s wrongful actions by upholding the admission into evidence of the appellant’s written confession. This it should not do because this encourages the law enforcer to become the law breaker.

I, therefore, am compelled to respectfully dissent to the majority upholding the admission into evidence of appellant’s written confession.

ONION, P.J., joins.

      . Although the State introduced only a portion of appellant’s written statement into evidence, the defense offered the remaining portion. For the purposes of this opinion, we are printing the entire confession. The material in the brackets was omitted by the State, but introduced by the defense:
      "My name is Antonio Nathaniel Bonham I am a black male 21 years old. My birth date is 2-6-60. I live at 5214 Kenilwood with my mother, Vera Edwards, my sister Ivy and my niece Melodee.
      "I had spent the night of July 8, 1981, Wednesday (sic) with my father, Nathan Hubert Bon-han (sic) at his apartment 1822½ Palm #2. The next morning I got up around 6:30 AM. This was thursday (sic) July 9, 1981. I put on a blue muscle shirt and a pair of dark green pants and black hush puppies shoes. I walked to Main Street sightseeing. When I got to Main Street I saw the woman driving a white car crossing Main Street. She was going behind the school to a parking lot. My intentions were to take her car. The only way I could get her car was to come in contact with her. [It was really my intensions (sic) never to harm the ladie (sic). But since I had been drinking heavily prior to this incident, the alcohol somehow took all controll (sic) of me. Then I decided that the pressures of socity (sic) of dealing with everyday life in terms of making decisions was so much of a problem that I decided that taking this car and the women would somehow relieve me of these pressures. Namely what I mean is that coping with socity (sic) was so hard that I got to the point in deciding that comitting (sic) this felony would some how help me over come (sic) my everyday (sic) difficulties. Being remourseful (sic) is something that is truly within me and I regrett (sic) the fact that I even got up that morning with thoughts of looking in the ways that I did.] While in the process of taking the car, I hit the women (sic) over the head with a brick. Then I took her car keys which were on the ground and walked to her car. She was on the ground face down. [After getting into the car I decided that leaving her there in the condition she was in should not be witnessed by the public.] So I drove the car to the back of the school and put her in the trunk of the car. Then I proceeded this mess by driving to a location that I was unaware of. In which that appeared to be all over Houston. I then drove to a wooden (sic) area after abusing her in the form that I had. [I resumed this mess purly (sic) by letting the women (sic) out of the car. In which she decided that sitting on the side of the road was something that she wanted to do of all things at this time. I then was in the process of heading to my destination of which I was unsure of.] My victim was still sitting on the side of the road [when I called myself trying to make her get some help]. [By trying to scear (sic) herwith (sic) the caras (sic) if I were going to run over her trying to make her get help I hadn’t realized that] I had run over the woman already, until the car got stuck in the ditch. [I was keenly aware of the fact that I had made one of the biggest mistakes in my life. There after (sic) I was so startled with what I had done] I futher (sic) more tryed (sic) to get the car out of the ditch, by using different object s (sic) that were in the trunk of the car, but failed to do so in trying. Since there was no hope in getting the car out of the ditch I fled undecidedly where to go, on foot. “I went to the 9th grade in school. I can read and write the english (sic) language. I have read the above statement and it is ture (sic) and correct. I have given this statement to Detective Schultz (sic) of my own free will no threats or promises were made to me to make this statement.”


source: Caselaw Access Project

author: REYNOLDS, Chief Justice.

license: Public Domain

text:
    William Blair MYERS, Appellant, v. The STATE of Texas, Appellee.
    No. 07-82-0230-CR.
    Court of Appeals of Texas, Amarillo.
    Jan. 17, 1984.
    Douglas R. Woodburn, Amarillo, for appellant.
    Danny E. Hill, Dist. Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.
   REYNOLDS, Chief Justice.

Following his plea of guilty to the court, appellant William Blair Myers was convicted of possession of a controlled substance, viz., heroin, in a quantity less than 28 grams. Punishment was assessed at three (3) years confinement in the Texas Department of Corrections.

Appealing, appellant contends, with his sole ground of error, that the trial court erred in overruling his motion to suppress evidence obtained by an unlawful search and seizure. Concluding that the search, albeit following an illegal arrest, was lawfully conducted pursuant to appellant’s voluntary consent freely given, we affirm.

The evidence adduced at the suppression hearing reveals that on 29 October 1981, a man identifying himself as Jerry Rhodes deposited with Ashby Simpson, the “terminal agent” for Air Cargo, Inc. at Dulles Airport in Washington, D.C., a package consigned to William or Bill Myers in Amarillo. Asked by Simpson to identify the contents of the package, Rhodes represented that the contents were motorcycle parts, but he would not specify the parts. Rhodes signed the “airway bill” which, in addition to reciting the shipment and corresponding charge for it, reserved to the shipper the right to examine the contents of any packages entrusted to it.

Simpson had the duty to assure that the contents of packages are safe for air travel and his suspicion was aroused by the size of the package and Rhodes’ lack of specification of its contents. Following Rhodes’ departure, Simpson opened the package for inspection. Observing that the package contained what appeared to be a prescription medicine bottle and one or more syringes, he relayed his discovery to Federal Aviation Administration police.

An hour later, United States Customs agent Low telephoned Simpson, who ventured that the package contained “narcotics.” Low was unsuccessful in enlisting the investigatory support of the Drug Enforcement Administration, and he instructed Simpson to re-seal the package and complete the shipping transaction. Accordingly, the package was placed on an October 30 morning flight to Dallas for transshipment to Amarillo.

On the same day, Low telephoned Lieutenant Garner of the Amarillo police department to alert the authorities of the impending arrival of suspected narcotics. Garner ascertained the arrival time of the flight and established surveillance at the Amarillo International Airport. Shortly before 4:00 p.m. on October 30, appellant, identifying himself as the recipient, redeemed the package at the Braniff Airways freight counter. Garner and two other officers arrested him and seized the package.

After giving appellant his Miranda (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) rights, which he acknowledged in writing, the officers asked appellant for his consent to search the package. The officers informed appellant that they suspected narcotics were in the package, but that they lacked a search warrant and, without his consent, they would need or attempt to get a search warrant. Appellant expressed a desire to consult an attorney before deciding whether to consent to the search. The officers took appellant, his awaiting female companion, and the package to the police station, where appellant was given a local telephone book and permitted to telephone any attorney of his choosing.

Appellant contacted an attorney, who arrived shortly thereafter at the police station. Appellant and the attorney were afforded a private conversation, following which the attorney informed Garner that appellant would sign a written consent to search the package, waiving any necessity for a warrant. Although the record does not disclose whether appellant’s consent was in conformity with or contrary to the advice of counsel, the attorney informed appellant, within Garner’s hearing, that appellant need not voluntarily consent to the search, but instead could require the officers to obtain a warrant.

Appellant executed the consent to search in the presence of the attorney he consulted, after Garner again told him that he did not have to consent to the search. Appellant gave his consent about an hour to one and one-half hours after his arrest. Inside the package the police discovered, inter alia, three packets of a substance later determined to constitute .841 grams of heroin.

Appellant neither testified nor offered other evidence at the suppression hearing. Without expressing the rationale therefor, the court overruled the motion to suppress, following which appellant entered a plea of guilty to the offense charged in the indictment. Incident thereto, appellant informed the court that he was age 34, was a high school graduate, and had completed one semester of college.

Appellant contends that the war-rantless search did not come within one of the recognized exceptions for a search conducted without a warrant issued upon probable cause. In advancing the contention, appellant does not directly challenge, nor does the State directly defend, his arrest; yet, it is to be accepted that appellant’s airport arrest was illegal. At the time of appellant’s apprehension, Garner was possessed of no more than a suspicion, based only upon Simpson’s unverified suspicion, that the package contained narcotics. Patently, the officer’s suspicion, not being an articulable one, was insufficient to constitute probable cause to arrest appellant at the airport. See Reid v. Georgia, 448 U.S. 438, 440-41, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1980); Fatemi v. State, 558 S.W.2d 463, 466 (Tex.Cr.App.1977).

Notwithstanding an illegal arrest, one of the recognized exceptions to the requirement of both a warrant and probable cause for a valid search is a search authorized by consent freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Kolb v. State, 532 S.W.2d 87, 89 (Tex.Cr.App.1976). Whether a consent to search was voluntary is a question of fact to be determined from the totality of all the circumstances. Schneckloth v. Bustamonte, supra, at 227, 2047; Kolb v. State, supra, at 90. If the consent is determined to be voluntary, then it must be determined whether the consent was “sufficiently an act of free will to purge the primary taint [of the illegal arrest].” Brown v. Illinois, 422 U.S. 590, 601-02, 95 S.Ct. 2254, 2260-61, 45 L.Ed.2d 416 (1975) (quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)).

The circumstances in this cause are that appellant was a mature man with formal education; he acknowledged in writing his Miranda rights and his right not to consent to a search of the package; other than his initial illegal arrest, he was not subjected to official overreaching and was afforded ample time to deliberate; and he consented to the search after consultation with the attorney of his choice. Appellant contends, however, that there was implied coercion by Garner’s statement that absent his consent, the police would need or attempt to obtain a search warrant; but, Garner’s statement, without more, does not invalidate the consent given, Stephenson v. State, 494 S.W.2d 900, 904 (Tex.Cr.App.1973), and appellant does not suggest there is, nor do we detect, other evidence of official coercion or duress.

The officers did not make any misrepresentations to induce appellant’s consent; indeed, the officers observed his rights and honored his request to consult privately with an attorney. In this regard, appellant “would assert that, under the circumstances, the appearance of the attorney more adequately demonstrates Appellant’s total submission to the claim of authority by police and acquiesence (sic) in the implied threat of the ability to examine the contents by search warrant.” But the bare assertion, undeveloped with the circumstances and unsupported by any authority, is contradicted by the recorded advice appellant received from the attorney. Beyond that, appellant’s actual consultation with his chosen attorney negates his present assertion of his total submission to the claim of authority by police and, it has been indicated, sufficiently attenuated the taint of his illegal arrest. See Brown v. Illinois, supra, 422 U.S. at 611, 95 S.Ct. at 2265 (Powell, J., concurring in part).

We have not been cited, nor have we found, any Texas authority addressing the precise issue presented in this cause. Absent a controlling determination of the issue in this jurisdiction, we conclude that the totality of all the circumstances in the record, measured by the applicable principles articulated in the previously cited authorities, competently supports a finding that appellant’s consent to search was voluntary and was an act of free will sufficient to purge the taint of his illegal arrest.

The same conclusion was reached upon a more detailed analysis of, and the application of the same basic principles to, a similar factual situation in United States v. Wellins, 654 F.2d 550 (9th Cir.1981). Deeming that the accused’s consent to search was, in the light of all the circumstances, voluntarily given and was sufficiently an act of free will to attenuate the taint of his illegal arrest, the Wellins court found the crucial factor to be that the accused was permitted to consult with his attorney. Id. at 555. We regard the court’s analysis as sound and apposite to the cause before us.

We, therefore, cannot fault the trial court for overruling appellant’s motion to suppress. His ground of error is overruled.

The judgment is affirmed.


author: DUGGAN, Justice.

text:
    FARMER FOUNDATION CO., Appellant, v. J.W. LEACH, et al., Appellees.
    No. 01-82-0819-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 15, 1984.
    Rehearing Denied Sept. 13, 1984.

      Mary Wimbish, Hollrah, Lange & Thoma, Charles L. Laswell, Laswell & Harvey, Houston, for appellant.
    Thea M. Fabio, Groom, Miglicco, Gibson, Bussell & Stewart, David A. Gibson, Groom, Miglicco, Gibson, Bussell & Stewart, Charles Casteel, Houston, for appel-lees.
    Before EVANS, C.J., and DUGGAN and BASS, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a judgment entered in favor of the plaintiffs in a suit on employment contracts. Gordon Jackel, James Jackel, and J.W. Leach, who specialize in setting foundations for bridges and other large structures, sued appellant, Farmer Foundation Co., to recover job completion bonuses allegedly due under written and oral employment contracts. On the basis of the jury’s verdict, the trial court entered judgment in their favor.

Each of the appellees entered into three separate employment contracts with Farmer regarding projects in Brazil. The first set of contracts were written. Under their terms the appellees agreed to provide labor on the construction of the Aratu naval base and, in exchange, were to be paid monthly salaries and completion bonuses. Each employee’s contract is identical, except for the amount of salary and bonuses to be paid, and the contract required that each employee remain on the job until completion in order to receive a completion bonus. The appellees completed the first project, but they were not paid their completion bonuses.

Farmer approached appellees about working on another project at the naval base. They accepted the offer and returned to Brazil. When this job was completed, the appellees agreed to work on a third and unrelated construction project in Brazil. Appellees did not receive a completion bonus on either the second or third projects. The parties agree that the second and third jobs were based on oral contracts and that the appellees were to be paid in the same manner on all three jobs: a monthly salary and a completion bonus calculated on the basis of the number of months worked. The disputed issue at trial was whether payment of the job completion bonuses was conditioned on Farmer first being paid as the general contractor for the various projects.

The case was submitted to the jury on one special issue drafted jointly by all parties:

Do you find from a preponderance of the evidence that the Plaintiffs, Gordon Jack-el, J.W. Leach and James Jackel were to receive a job completion bonus only if Farmer Foundation Company was completely paid for work performed?

While the jury was deliberating, the attorneys agreed that judgment would be entered for the employees if the jury answered, “We do not,” and for Farmer if they answered, “We do.” The attorneys stipulated that the employees’ damages totaled $95,000. The jury answered the special issue in favor of the employees, and judgment was entered in the amount agreed upon by the attorneys for both sides.

In the first of three points of error, Farmer alleges the trial court abused its discretion in refusing to grant its motion for new trial. Farmer asserts that its attorney’s negligence and unauthorized stipulations deprived it of a fair hearing of the case and that this misconduct necessitates a new trial. Farmer alleges that its trial attorney lacked minimal skills as an advocate, that much significant evidence was lost by his inability to lay the predicate necessary for its admission, and that its trial attorney entered into unauthorized stipulations regarding damages and attorney’s fees. It argues that the combination of these facts deprived it of its day in court and contends that the trial court erred in failing to grant it a new trial on this ground.

Farmer cites two cases as authority for its argument, Cleere v. Blaylock, 605 S.W.2d 294 (Tex.Civ.App.—Dallas 1980, no writ) and McMillan v. McMillan, 72 S.W.2d 611 (Tex.Civ.App.—Dallas 1934, no writ). Of these, only McMillan addresses circumstances under which a trial attorney’s negligent or unauthorized acts might entitle a civil litigant to a new trial. In McMillan, the court of civil appeals found an abuse of discretion in the trial court’s failure to grant a new trial because of the trial attorney’s negligence when, in his client’s absence, the attorney agreed to a judgment and the premature issuance of a writ of attachment against his client. This action occurred shortly after the client refused to settle the dispute. The trial court was aware of this refusal to settle, as well as the fact that the client was too ill to be present at trial. Based on these unusual facts, the court found an abuse of discretion in the refusal to grant a new trial.

The instant case is distinguishable from McMillan. In the case at bar, Farmer’s attorney did not consent to the judgment against his client in the face of a refusal to settle. Neither did the trial court deny a motion for new trial with knowledge that trial counsel had acted contrary to his client’s wishes.

The trial court was clearly in the best position to view the presentation of the case by Farmer’s trial counsel and to determine whether appellant was denied his day in court. Farmer acknowledges that the standard for appellate review of a denial of a new trial is abuse of discretion. The theory advanced as a basis for new trial, i.e., trial counsel’s negligence and unauthorized acts, is rooted in fact questions and has little legal precedent. Given these considerations, we hold that the denial of appellant’s motion was not an abuse of discretion. Accordingly, the record does not reflect reversible error in the trial court’s refusal to grant appellant’s motion. Howard Gault & Son v. Metcalf, 529 S.W.2d 317 (Tex.Civ.App.—Amarillo 1975, no writ). If Farmer was misrepresented at trial, we believe its remedy lies in a malpractice action against its former attorney. See generally Cook v. Irion, 409 S.W.2d 475 (Tex.Civ.App.—San Antonio 1966, no writ). Farmer’s first point of error is overruled.

Farmer’s second point asserts error in the court’s entering judgment upon the jury’s answer to the single special issue. It contends that the special issue agreed to by both parties failed to address the dispute between the parties as it was developed by the evidence at trial, that there was therefore no evidence to support the issue’s submission and that the jury’s answer provided no basis on which judgment could be entered.

The parties to a law suit have the responsibility to tender appropriate special issues to the court for submission to the jury for fact determinations in the ease. However erroneous or incomplete those special issues may be, the jury’s answers to the questions presented form the basis of the court’s judgment. Mowery v. Fantastic Homes, Inc., 568 S.W.2d 171 (Tex.Civ.App.—Dallas 1978, no writ). Failure to object that the special issues do not properly set out a party’s theories or defenses waives any complaint on appeal. State Reserve Life v. Ives, 535 S.W.2d 400 (Tex.Civ.App.—Fort Worth 1976, no writ); Parkview General Hospital, Inc. v. Eppes, 447 S.W.2d 487 (Tex.Civ.App.—Corpus Christi 1969, writ ref’d n.r.e.); Hankamer v. Sumrall, 257 S.W.2d 827 (Tex.Civ.App.—Beaumont 1953, writ ref’d n.r.e.). Farmer failed to object to the special issue submitted and thereby waived any error. We overrule its second point of error.

Farmer’s third point alleges that the special issue commented on the evidence by assuming that appellees had not breached their employment contracts. To have breach of contract considered as an aspect of the case, Farmer was required to tender special issues on that theory. Trinity Road & Bridge Co. v. Watson, 341 S.W.2d 956 (Tex.Civ.App.—Fort Worth 1960, writ ref’d n.r.e.). Farmer’s failure to tender such issues waived its opportunity to have appellee’s alleged breach of contract considered. To the extent that the special issue commented on the absence of breach of contract, it commented on a non-issue and was not error. Vahlsing Christina Corp. v. Ryman Well Service, Inc., 512 S.W.2d 803 (Tex.Civ.App.—Corpus Christi 1974, no writ). We overrule the third point of error.

Appellees bring one cross-point asserting that this appeal is frivolous and taken for purposes of delay only. Appel-lees request damages pursuant to Tex.R. Civ.P. 435, 438. The right to appellate review will not be penalized absent a clear showing that appellant had no reasonable ground to believe the judgment would be reversed. Beago v. Ceres, 619 S.W.2d 293 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ). We do not find sufficient evidence to convince us that the appeal was frivolous or was taken solely for the purpose of delay. We conclude that the assessment of damages is not appropriate. Landscape & Construction, Inc. v. Warren, 598 S.W.2d 38 (Tex.Civ.App.—Texarkana 1980, writ ref’d n.r.e.). Appellee’s cross-point is overruled.

The judgment of the trial court is affirmed.


author: DOYLE, Justice.

text:
    James Prentiss WELCH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0908-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 30, 1984.
    Rehearing Denied Nov. 29, 1984.

      Neal Y. Pickett, Houston, for appellant.
    William Meitzen, Fort Bend County Dist. Atty., Donald W. Bankston, Fort Bend County Asst. Dist. Atty., Richmond, for appellee.
    Before DUGGAN, LEVY and DOYLE, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from a conviction based on an indictment for the offense of intentionally and knowingly possessing with the intent to deliver a controlled substance, to wit, methamphetamine. By appellant’s choice, trial was by jury and punishment was by the court. The court assessed a sentence of thirty-seven years imprisonment.

Appellant was arrested February 27, 1982, in the parking lot of a Gerland’s Food Store in Fort Bend County. Prior to appellant’s arrest, three narcotics officers had observed him meet with police informant, Connie Tutt, for the alleged purpose of selling methamphetamine. The officers had pre-arranged that once Miss Tutt had been offered the drug by appellant, Miss Tutt would raise her right hand. Upon observing Miss Tutt’s raised hand, the officers approached appellant, searched, and arrested him. On appeal from his conviction of possession with the intent to deliver a controlled substance, appellant raises four grounds of error.

In the first ground of error, appellant contends that the trial court erred in submitting this case to the jury pursuant to Vernon Ann.Civ.Stat. art. 4476-15 sec. 4.03 because said statute is unconstitutional.

As authority for this contention, appellant cites Crisp v. State, 643 S.W.2d 487 (Tex.App.—Austin 1982, writ granted). In Crisp the court held that the caption to H.B. 730, was unconstitutional in that it failed to give readers fair notice of the subject matter contained within the Bill. House Bill 730 purportedly amended the Controlled Substances Act, including art. 4476-15 sec. 4.03. Therefore, the appellant is correct in his contention that art. 4476-15 see. 4.03 is unconstitutional as amended.

However, the Texas Court of Criminal Appeals also held that the Controlled Substances Act now stands as though H.B. 730 had never been enacted. Ex Parte Crisp, 661 S.W.2d 944 (Tex.Crim.App.1983).

Accordingly, given that the indictment in the instant case alleged the possession with intent to deliver a control substance, to wit: methamphetamine, which was an offense under art. 4476-15 sec. 4.03 before H.B. 730 was enacted, the trial court did not err in submitting the case to the jury. This ground is overruled.

In the second ground of error, appellant contends that there was insufficient evidence produced at trial to prove that appellant intended to deliver a controlled substance.

The record reflects that twenty-six grams of methamphetamine were found inside one of the boots appellant was wearing at the time of his arrest. The arresting officers were notified that appellant possessed and intended to sell a controlled substance by their informant, Miss Tutt, who was not available to testify at trial because no one could locate her. However, the three arresting officers who witnessed the alleged transaction testified to substantially the same facts.

Prior to appellant’s arrest, Miss Tutt, acting under the authority of one of the arresting police officers, Herschel Erwin, had arranged to purchase at least an ounce of methamphetamine from appellant. Under further direction from Officer Erwin, Miss Tutt arranged to buy the substance from appellant in the parking lot of Ger-land’s Food Fair Market Number 78. According to Officer Erwin, Miss Tutt agreed to signal the officers by raising her right, hand over her head when and if appellant showed her the methamphetamine and offered it for sale.

On the day of appellant’s arrest, Miss Tutt met with appellant in a car in the Gerland’s parking lot, and allegedly saw the methamphetamine and arranged to buy it. Upon exiting the car, appellant sig-nalled the officers by raising her right arm.

As the officers approached appellant’s car, they believed appellant was attempting to escape when they observed smoke coming from appellant’s tires and heard screeching and spinning noises as appellant placed his car in reverse. The officers blocked appellant’s car, ordered him out of the car, and conducted a body search. At this time, the officers found the methamphetamine tucked inside appellant’s boot.

Officer Erwin testified that on several prior occasions Miss Tutt had proven a reliable informant and had performed similar operations with the police. Although Officer Erwin could give no explanation as to where Miss Tutt was located at the time of trial, the officer testified that he had known Miss Tutt for approximately two years, that Miss Tutt sometimes co-operated with narcotic officers in her efforts to make amends for her prior criminal activity, and that Miss Tutt and her car were searched prior to her meeting with appellant.

Appellant contends that because Miss Tutt did not testify, there is insufficient evidence that appellant intended to “sell” the methamphetamine. This case was not submitted to the jury with an instruction on circumstantial evidence. However, the standard for review in both circumstantial and direct evidence cases is now the same, to-wit, whether “a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983). If the state’s evidence supports an inference other than a finding of the essential elements of the crime, then, in both circumstantial and direct evidence cases, no trier of fact could rationally find the defendant guilty beyond a reasonable doubt as required in In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Additionally, in circumstantial evidence cases, the state’s proof must exclude every other reasonable hypothesis except the defendant’s guilt. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983). The evidence must be of a higher degree than to merely raise a strong suspicion of guilt; it must foreclose reasonable doubt. Carlsen, supra.

The only evidence that appellant intended to deliver the substance is Miss Tutt’s alleged hand signal. Without testimony from her or someone else who was present and witnessed appellant’s offer to sell the contraband, we fail to see how appellant's guilt is established beyond a reasonable doubt. Even if we consider that the “hypothesis” of guilt must be a reasonable one consistent with the circumstances and the facts proven, the only proven facts before the court are that appellant possessed the methamphetamine, and met with Miss Tutt in the Gerland’s parking lot.

The cumulative force of all the incriminating circumstances does not exclude every other reasonable hypothesis except appellant’s guilt, and is insufficient to warrant the jury’s finding of guilt for the intent to transfer a controlled substance. We sustain appellant’s second ground of error.

Appellant contends in ground pf error three that the trial court erred in allowing into evidence state’s exhibits No. 1, 2, 3, 4, and 5, because said items were the result of an illegal arrest and search.

At trial, the state offered the following items which were seized from appellant immediately after the officers blocked appellant’s alleged escape; a clear plastic bag, a white envelope, which contains a plastic baggie, a band-aid box, and two plastic bags containing substances. The plastic bags contained controlled substances.

The appellant objected to the admission of the above items on the basis that a chain of custody had not been properly proven. However, this objection does not comport with the issue raised on appeal. Therefore, any objection to the admission based on an illegal search and arrest may not be raised for the first time on appeal, and was waived at trial when appellant failed to obtain a ruling on his motion to suppress such evidence. Dunavin v. State, 611 S.W.2d 91 (Tex.Crim.App.1981). This ground of error is overruled.

Appellant next contends that the trial court erred in admitting state’s exhibit one through five because the state failed to establish a chain of custody. At trial, appellant only objected to the admission of items 1 through 3 on the grounds that the chain of custody had not been proven. Appellant’s objection to the admission of items 4, 5, and 6 goes to their relevancy to the appellant:

Mr. Bankston: Your Honor, before I pass the witness, once more we request after tendering to defense counsel State’s Exhibits Numbers 4, 5 and 6, we would request that they be introduced. Mr. Pickett: I have the same objection. Number one, this goes to a person who is not a party in the proceeding here today, and I think, therefore, the introduction of this evidence would be highly inflammatory towards my client, Mr. Welch.
The Court: Overruled. State’s 4, 5 and 6 are admitted.

Since appellant’s objection to the introduction of items 4 through 6 does not comport with the chain of custody issue raised on appeal, appellant has not preserved these issues properly for appellate review. Hodge v. State, 631 S.W.2d 754 (Tex.Crim.App.1982).

We can find no error in the trial court admitting the state’s exhibits of items containing the controlled substance.

Mr. Butcher, a chemist and toxicologist for the Texas Department of Public Safety, testified that on March 1, 1982, he received the baggies from Officer Erwin, who had seized the articles on February 27, 1982. Officer Erwin testified that from the time he received the items until the time he delivered it to Mr. Butcher, the items were in his actual care, custody, and control. Officer Erwin also testified that he did not tamper with the contents of the items.

Mr. Butcher identified the state’s exhibits by means of his initials, and testified that they had been locked in the chemistry lab’s vault, until he had turned them over to the district attorney for use in a court hearing. There was no showing that the exhibit had been tampered with or changed. Moreover, the exhibits were sufficiently identified by Mr. Butcher. Therefore, no error is shown. Garcia v. State, 537 S.W.2d 930 (Tex.Crim.App.1976). This fourth ground of error is overruled.

From a total review of the evidence in this case, we conclude that the state has failed to carry its burden of proving beyond a reasonable doubt that appellant possessed with the intent to deliver the controlled substance, methamphetamine.

Therefore, the judgment of the trial court is reversed and the appellant is ordered acquitted.


author: ROBERT R. MURRAY, Justice (Retired).

text:
    Louis B. HUGHES, et al., Appellants, v. HOUSTON NORTHWEST MEDICAL CENTER, INC., et al., Appellees.
    No. 01-83-0109-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 30, 1984.
    Rehearing Denied Nov. 15, 1984.
    See also Tex.App., 647 S.W.2d 5.

      John K. Grubb, Blackburn, Gamble, Henderson & Grubb, Dermot Rigg, Hoover, Cox & Shearer, Houston, for appellants.
    Norman Reidmuller, Butler & Binion, Houston, for appellees.
    Before DOYLE and JACK SMITH, JJ., and ROBERT R. MURRAY, J., Retired.
   OPINION

ROBERT R. MURRAY, Justice (Retired).

This is an appeal from the judgment of the trial court denying plaintiffs relief on their cause of action and granting defendants judgment on their cross-action.

In 1971, several individuals executed instruments creating two general partnerships and one corporation for the purpose of acquiring, developing and operating the Houston Northwest Medical Center. Except for minor differences, when the three entities were initially formed, Houston North Properties, Houston Northwest Medical Center, Inc., and Houston North Hospital Properties had essentially the same owners, including plaintiffs, Dr. Louis B. Hughes and Dr. Phillip T. Eichel-berger, Jr.

Houston North Properties, a partnership, acquired a 56-acre tract of land in northwest Houston. That partnership is not a party to this suit. Houston North Hospital Properties (hereafter referred to as “the partnership”) purchased 11 acres from Houston North Properties and constructed a hospital. Houston Northwest Medical Center, Inc. (hereafter referred to as “the corporation”) was formed to operate the hospital as lessee.

When this suit was filed, plaintiffs were stockholders in the corporation but were no longer partners in the partnership. Plaintiffs were expelled from the partnership for failure to abide by the terms of the partnership agreement. See Hughes v. Aycock, 598 S.W.2d 370 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref d n.r.e.).

After the hospital was completed, the corporation operated it under a lease from the partnership for 20% of the gross revenues.. In mid-1980 the lease was canceled by agreement and a management contract was substituted in its place. At the same time, the corporation sold to the partnership all of its assets and liabilities, including two strips of land totaling 7.7 acres. The corporation continued to manage the hospital under the management contract. In June of 1982, the partnership announced that the hospital was to be sold and an agreement was made whereby the corporation would agree to cancel the management contract in return for $180,000. Plaintiffs filed this suit immediately upon learning of the proposed sale.

Plaintiffs brought this suit against the corporation, its officers and directors, and the partners of the partnership in the form of a shareholders’ derivative suit alleging a breach of fiduciary duty concerning (1) the sale of 7.7 acres of land, (2) termination of the hospital lease in 1980, (3) the commingling of assets and liabilities of the corporation and the partnership, and (4) the termination of the management contract in 1982. The corporation filed a counterclaim against plaintiffs for reasonable attorney’s fees under section 5.14 F of the Texas Business Corporations Act for bringing a shareholders’ derivative lawsuit without reasonable cause. The partnership filed a counterclaim against plaintiffs alleging that they conspired with Mrs. Reba Eichel-berger (a non-party) to tortiously interfere in the contractual relationship of the partnership.

After a two-week trial, the jury resolved all issues against plaintiffs and in favor of the defendants and cross-plaintiffs. The trial court entered a judgment on the verdict against Drs. Hughes and Eichelberger for $412,000 on the counterclaim of the partnership, $92,000 in attorney’s fees on the counterclaim of the corporation, canceled the lis pendens, entered a permanent injunction against plaintiffs filing a lis pen-dens, and entered a declaratory judgment declaring defendants’ non-liability to plaintiffs. The plaintiffs perfected an appeal presenting fifteen points of error.

Plaintiffs’ first point of error asserts that the trial court erred in entering judgment against them in the amount of $412,-300, because the judgment did not conform to the pleadings. We overrule this point.

The partnership alleged a contractual relationship with a buyer involving an agreement whereby the partnership was to sell its hospital with a closing date of November 1982. It further alleged that plaintiffs conspired with Mrs. Reba Eichelberger, wife of Dr. Eichelberger, to delay and prevent the sale and that it suffered actual damages and loss as a result of the interference. The partnership properly pleaded a cause of action for tortious interference with its contract to sell the hospital. See Armendariz v. Mora, 553 S.W.2d 400, 404 (Tex.Civ.App.—El Paso 1977, writ ref d n.r. e.).

Paragraph V of the partnership’s counterclaim states:

The amount of damage sustained by Defendants due to Plaintiffs’ tortious interference with business and contractual relations is the amount of the difference between the current sale price of the hospital and the amount of the previous best offer, which difference is Seven Million Dollars ($7,000,000.00).

The testimony at trial showed that the contract to sell was still intact and the sale was only postponed for two months. The measure of damages awarded by the jury and granted by the trial court’s judgment was the loss of profit caused by the delay of the closing date.

Plaintiffs contend that, because the partnership did not list damages caused by delay in their cross-claim, the pleadings will not support a judgment for such damages. We disagree. The law is well settled that the claimant is not required to allege the applicable legal measure of damages, and if all facts necessary to raise the issue on a proper measure of damages are in evidence, the court must submit a proper measure of damages to the jury. Sneed v. Martin, 292 S.W.2d 891 (Tex.Civ.App.—Dallas 1956, no writ); Dallas Railway & Terminal Co. v. Strickland Transportation Co., 225 S.W.2d 901 (Tex.Civ.App.—Amarillo 1949, no writ).

Plaintiffs’ second point of error alleges that the trial court erred in entering judgment against them, because the counterclaim was in fact founded upon a malicious prosecution claim which was neither pleaded nor proved. They contend that, although the counterclaim is called tortious interference, the real theory on which evidence was presented was that plaintiffs had harmed the partnership by filing suit against it. One element to maintain a malicious prosecution action is a showing that the partnership had already prevailed on plaintiffs’ suit before they could file a malicious prosecution action. Smart v. Carlton, 557 S.W.2d 553 (Tex.Civ.App.—Beaumont 1977, writ ref’d n.r.e.).

As we have previously stated, the partnership properly pleaded a cause of action for tortious interference. By its finding in answer to Special Issue No. 19, the jury found a tortious interference. Plaintiffs contend that because evidence of the pending suit was before the jury, the cause of action was for malicious prosecution. We disagree.

II.
HNHP has an existing business and contractual relationship with LeRoy Pesch, M.D., Health Resources Corporation of America (“HRCA”) and HNMC, Inc., a corporation formed by Dr. Pesch to facilitate his relations with HNHP. This relationship has ripened and grown to where HNHP has agreed to sell its hospital to HNMC, Inc. The sale was due to close on November 1, 1982. The sales price will include an initial payment of approximately Sixty Million Dollars ($60,000,000) and additional tens of millions of dollars to be paid out over time.
III.
Plaintiffs have made various false claims against HNHP. Plaintiffs have caused their false claims and allegations to be communicated to HNMC, Inc., HRCA and Dr. Pesch. Plaintiffs have further interfered with Defendants’ business and contractual relationships by causing Mrs. Reba Eichelberger, acting as their agent and in conspiracy with them, to delay and prevent the sale of the hospital. In so doing, Plaintiffs have tortiously interfered with HNHP's business and contractual relationships.

Litigation is a powerful weapon, and when instituted in bad faith for the purpose of causing damage or loss, it is a wrongful method of interference. The fact that the filing of a lawsuit could also serve as a basis for malicious prosecution is immaterial.

Plaintiffs’ third point of error alleges that the evidence was legally and factually insufficient to support the judgment of tortious interference. In reviewing for legal sufficiency, we limit the scope of our inquiry to the determination of whether there is any evidence in the record to support the jury finding, viewing the evidence in the light most favorable to the findings and disregarding all evidence and inferences to the contrary. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In contrast, in reviewing for factual sufficiency, we look at all the evidence in the record to determine if the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). We have closely examined the evidence, and conclude that the evidence is sufficient to support the judgment.

The contract to sell the hospital was a document entitled “Purchase Agreement” dated June 28, 1982, between the partnership as seller, and HNMC, Inc., represented by Dr. LeRoy Allen Pesch, as purchaser. It included a term wherein the buyer agreed to pay the partnership four percent of the net revenues of the hospital for 10 years after the sale. The contract called for a closing of the sale on November 1, 1982.

Plaintiffs contend that by an agreement dated July 10, 1982, the parties agreed to delay the closing to January 4, 1983, because the purchaser needed the additional time to obtain financing; therefore, they were not the cause of the delay. However, the agreement of July 10 did not move the closing date to January 4, 1983. Instead, it allowed the purchaser to satisfy the cash payment at the November closing by giving a note payable on January 4, 1983. The July 10 agreement did not change the closing date. The week before the trial began on November 8, 1982, the closing date was moved back to January 4, 1983. The evidence demonstrated that the sale was less beneficial to the partnership than it would have been if there had been no interference with its contractual relations. Although the contract to sell was still intact, Texas law recognizes that interference which makes performance more burdensome or difficult, or of less or no value to the one entitled to performance, may constitute an actionable tort. Tippett v. Hart, 497 S.W.2d 606 (Tex.Civ.App.-Amarillo), writ ref'd n.r.e. per curiam, 501 S.W.2d 874 (Tex.1973).

Four percent of the net revenues was estimated by witnesses for the partnership to be between $400,000 and $417,-000 per month. The jury awarded $412,-000, which is roughly equivalent to one month of delay. The evidence was ample that the partnership suffered damage due to the interference. Damages must be established with reasonable certainty, Jordan v. Cartwright, 347 S.W.2d 799 (Tex.Civ.App.—Fort Worth 1961, no writ), but the amount of damages need not be certain, or future damages would never be recoverable. See Adams v. Hood County Sand & Gravel Co., 354 S.W.2d 593 (Tex.Civ.App.—Fort Worth 1962, writ ref'd n.r.e.).

In their fourth point of error, plaintiffs complain that it was error to admit evidence of Mrs. Reba Eichelberger’s appearance before the Texas Health Facilities Commission under Tex.Rev.Civ.Stat.Ann. art. 4418h, sec. 3.09 (Vernon Supp.1984). Mrs. Eichelberger appeared before the Commission in opposition to the partnership’s application for a certificate of need concerning the expansion of the hospital.

Plaintiffs’ only argument under this point is that proceedings before the Commission are privileged, citing Reagan v. Guardian Life Insurance Co., 140 Tex. 105, 166 S.W.2d 909 (1942). That case stated the rule of privilege as follows:

An absolutely privileged communication is one for which, by reason of the occasion upon which it was made, no remedy exists in a civil action for libel or slander. (Emphasis added).

166 S.W.2d at 912. The privilege applies only to libel and slander actions against the person testifying at judicial or quasi-judicial proceeding. The fourth point of error is overruled.

In point of error No. 5, plaintiffs allege that the answer to Special Issue No. 21 was against the greater weight and preponderance of the evidence. We disagree. We have reviewed the record in this ease under the applicable standard and find the evidence to be sufficient.

The testimony of independent tax counsel, a certified public accountant, real estate appraisers, the comptroller for the corporation, partners and stockholders, and the records of the corporation and partnership would entitle, if not compel, the jury to believe that there was no “commingling” of any assets and that the cancellation of the hospital lease in 1980, the sale of the 7.7 acres of land in 1980, and the cancellation of the management contract in 1982 were beneficial to the corporation and its stockholders. A reasonable inquiry by plaintiffs before suit would have revealed no reasonable cause to bring a derivative suit.

In point of error No. 6, plaintiffs argue that the trial court erred in failing to impose a constructive trust on the assets of the corporation and the partnership. We disagree.

As we have previously stated, the jury resolved all special issues against plaintiffs. In order to prevail on this point, plaintiffs must show that the evidence establishes conclusively, or as a matter of law, their right to a constructive trust. See Horton v. Dental Capitol Leasing Corp., 649 S.W.2d 655 (Tex.App.—Texarkana 1983, no writ); Visage v. Marshall, 632 S.W.2d 667 (Tex.App.—Tyler, 1982, writ ref d n.r.e.). Corporate officers and directors owe the corporation and its shareholders a duty to act only in their best interest. See International Bankers Life Insurance Co. v. Holloway, 368 S.W.2d 567 (Tex.1963). A constructive trust is imposed by law because a wrongdoer would be unjustly enriched or would profit by his breach of fiduciary duty. Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960).

The acts complained of by the plaintiffs were shown to be beneficial to the corporation, and all money belonging to the corporation was accounted for through an inter-company transfer. The record fails to show that the partnership was unjustly enriched.

By points of error Nos. 7, 8, 9, 10, 11, 12 and 13, plaintiffs complain of rulings on special exceptions and the admission and exclusion of evidence. Plaintiffs fail to cite any authority and present only a general statement in support of these points. Tex. R.Civ.P. 418(e) (Vernon Supp.1984). Points of error not supported by argument and authorities are waived. Leckey v. Warren, 635 S.W.2d 752 (Tex.App.—Corpus Christi 1982, no writ); Dryden v. Dairyland County Mutual Insurance Co., 633 S.W.2d 912 (Tex.App.—Beaumont 1982, no writ).

By point of error No. 15, plaintiffs allege that the cumulative effect of all the errors was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment. We have found no assigned error; therefore, this point is without merit and is overruled. To obtain a reversal of a judgment an appellant must first show that there was error in fact. Fulmer v. Thompson, 573 S.W.2d 256, 265 (Tex.Civ.App.—Tyler 1978, writ ref’d n.r. e.).

Plaintiffs’ fourteenth point alleges error in the declaratory adjudication that the partnership had no liability to plaintiffs on claims “which might have been” presented in this suit. The judgment recites as follows:

It is therefore ORDERED, ADJUDGED and DECREED that all Defendants/ Cross-Plaintiffs have judgment pursuant to the Declaratory Judgments Act, Article 2524-1, V.A.T.S. DECLARING, and it is hereby DECLARED that none of the Defendants have any liability to Plaintiffs upon any claims or causes of action which were or which might have been presented herein, including any assertion of any interest in the realty described in Exhibit A against any of the parties hereto. (Emphasis added).

The partnership argues that in declaring their rights, the trial court went no further than the law of res judicata permits. We disagree.

The law of res judicata in Texas was correctly stated by our Supreme Court in Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768, 771-772 (Tex.1979) as follows:

The doctrine of res judicata states that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings either before the same or any other tribunal. Steakley & Howell, Ruminations on Res Judicata, 28 S.W.L.J. 355 (1974). The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit. (Emphasis added).

In any event, the trial court should not declare the effect of the judgment on other claims and causes of action not in issue.

The judgment is modified to delete the phrase “or which might have been,” and as modified, is affirmed.

      . Paragraphs II and III of the counterclaim state:

      . Special Issue No. 19 reads as follows:
      Do you find from a preponderance of the evidence that Louis Hughes or Phillip Eichelber-ger, Jr. tortiously interfered with the contractual relations of Houston North Hospital Properties with respect to the proposed purchaser of the hospital complex?
      Answer "We do” or “We do not” as to Louis Hughes.
      ANSWER: "We do".
      Answer “We do” or "We do not” as to Phillip
      Eichelberger, Jr.
      ANSWER: “We do".
      You are instructed that "tortious interference” means intentional action calculated to cause damage to Houston North Hospital Properties in regard to any contracts which it has and which action is done with the purpose of causing it damage or loss without justifiable cause on the part of Louis Hughes or Phillip Eichel-berger, Jr. and which action results in actual damage or loss to Houston North Hospital Properties.

      . Special Issue No. 21 reads as follows:
      Do you find from a preponderance of the evidence that Louis Hughes and Phillip Eichel-berger, Jr. brought their derivative suit in this case without reasonable cause?
      ANSWER "We do” or "We do not.”
      ANSWER: "We do”.
      In connection with this Special Issue, you are instructed that the "derivative suit” in this case refers to the claims brought on behalf of Houston Northwest Medical Center, Inc., related to the sale of the 7.7 acre parking lot, the termination of the hospital Lease, the cancellation of the hospital Management Contract, and the handling of the corporate assets.


author: UTTER, Justice.

text:
    HOME INSURANCE COMPANY, Appellant, v. James E. GILLUM, Appellee.
    No. 13-83-414-CV.
    Court of Appeals of Texas, Corpus Christi.
    Sept. 20, 1984.
    Rehearing Denied Oct. 25, 1984.

      William Gamble, Kenneth L. Clark, Hu-son, Clark, Hooks, Stephenson & O’Connor, San Antonio, for appellant.
    Russell McMains, Anthony Constant, Edwards & Perry, Corpus Christi, for appel-lee.
    Before UTTER, BISSETT and YOUNG, JJ.
   OPINION

UTTER, Justice.

This is a worker’s compensation case wherein appellee recovered total and permanent disability benefits from appellant. Appellant does not challenge the sufficiency of the evidence to support the jury’s verdict. Appellant primarily challenges the trial court’s rulings, which excluded certain evidence and which denied certain special issues and instructions. We affirm the judgment of the trial court.

Appellee was working for his employer, Berry Contracting, on August 6, 1981, when he sustained an injury to his lower back. On August 10, 1981, the following Monday after the accident, appellee reported to work and told his foreman that he was hurting too badly to continue working. After appellee filled out an accident report, his foreman then took him to a chiropractor, who “manipulated” and stretched his back and lower extremities. After the chiropractic treatment, appellee returned to work, at which time circulatory problems of his right leg began to develop and eventually resulted, first, in the amputation of his right toe and, subsequently, in the amputation of his right leg below the knee.

In its first and second points of error, appellant complains of the exclusion of certain testimony, which allegedly disclosed appellee’s prior medical problems and conditions and appellee’s injurious and/or unsanitary practices, which included alcohol abuse, smoking and failure to take prescribed medications, all of which were alleged to be the “sole cause” of appellee’s disability. In order to sustain a “sole cause” defense, an insurer has the burden of pleading and proving that the injured party’s incapacity was due solely to former disease or former injury. Love v. Traveler’s Insurance Co., 395 S.W.2d 682 (Tex.Civ.App.—Texarkana 1965, writ ref’d. n.r. e.). There was no evidence, either excluded or admitted, which showed that any of the prior medical problems or conditions or any of the alleged injurious and/or unsanitary practices were the “sole cause” of appel-lee’s incapacity; therefore, the trial court did not err in excluding such testimony. Appellant’s first and second points of error are overruled.

In his third and fourth points of error, appellant complains that the trial court erred in refusing to submit its requested special issues relating to its alleged “injurious practices” defense pursuant to TEX.REV.CIV.STAT.ANN. art. 8307 § 4 (Vernon Supp.1984).

TEX.REV.CIV.STAT.ANN. art. 8307 § 4 (Vernon Supp.1984), in part, reads:

If any employee shall persist in insanitary or injurious practices which tend to either imperil or retard his recovery, or shall refuse to submit to such medical or surgical treatment, chiropractor service or other remedial treatment recognized by the State, as is reasonably essential to promote his recovery, the board may in its discretion order or direct the association to reduce or suspend the compensation of any such injured employee.

Before an insurer is entitled to the submission of special issues pursuant to Art. 8307 § 4, the insurer must allege and prove a request to and a refusal by the claimant to refrain from the practice which it contends to be injurious. Aetna Casualty & Surety Co. v. Shreve, 551 S.W.2d 79 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ); Millers Mutual Fire Insurance Co. of Texas v. Gilbert, 462 S.W.2d 112 (Tex.Civ.App.-Beaumont 1970, writ ref’d. n.r.e.). In addition, the insurer must allege and prove not only that the claimant was advised to refrain from the injurious practices but also that his recovery would be hampered, imperiled or retarded if he failed to do so. Aetna Casualty & Surety Co. v. Shreve, 551 S.W.2d at p. 84.

The evidence actually presented and the proffered evidence, which was excluded by the trial court yet was preserved by way of bill of exceptions, did not establish that appellee was ever informed by any doctor that the failure to refrain from any of the alleged “injurious practices” would “imperil” or “retard” his recovery. Thus, appellant was not entitled to the submission of its “injurious practices” defense issues. The trial court did not err in refusing appellant’s related requested special issues. Aetna Casualty & Surety Co. v. Shreve, 551 S.W.2d at pp. 83-84. Appellant’s third and fourth points of error are overruled.

In its fifth point of error, appellant asserts that the trial court erred in refusing to admit certain hospital records for the purpose of impeaching appellee, who had earlier testified regarding his physical condition prior to the injury. It is not clear whether appellant challenges on appeal (1) the trial court’s failure to admit the complete hospital record offered or (2) the trial court’s failure to admit excerpts from the hospital record which appellant subsequently offered into evidence after appel-lee’s objection to the admission of the complete hospital record was sustained. Nothing is presented for our review because neither the original hospital record nor the excerpts therefrom, to which appellee’s objections were sustained, were included in the record. TEX.R.CIV.P. 373; Indust-Ri-Chem Laboratory, Inc. v. Par-Pak Co., Inc., 602 S.W.2d 282 (Tex.Civ.App.—Dallas 1980, no writ); Sanchez v. Carey, 409 S.W.2d 458 (Tex.Civ.App.—Corpus Christi 1966, no writ).

In addition, neither the complete hospital records nor the excerpts therefrom were admissible for impeachment of appel-lee. In order for a prior inconsistent statement to be admissible for impeachment purposes alone, the witness to be impeached must first be confronted with the alleged prior contradictory statement. Garcia v. Sky Climber, Inc., 470 S.W.2d 261 (Tex.Civ.App.—Houston [1st Dist.] 1971, writ ref’d. n.r.e.). Since appellee had not been confronted with the excluded documents during his examination before the trier of fact, no proper predicate for the admission of the documents for impeachment purposes had been laid. Appellant’s fifth point of error is overruled.

In its sixth point of error, appellant asserts that the trial court erred in excluding from evidence a health insurance claim form, which was introduced allegedly for the purposes of showing an admission against interest and of impeachment. The excluded health insurance claim form was prepared by the office of one of appellee’s treating physicians and was signed by ap-pellee. In the “Patient and Insured (Subscriber) Information” section of the claim form, an “x” indicated that appellee’s “condition” was not related to his employment. After appellee testified in a bill of exceptions that he had never taken the position that his injury was not related to his employment, appellee was confronted by appellant’s attorney with the health insurance claim form. When confronted with the claim form, appellee testified that his signature was affixed to the claim form, that he had not read the claim form but had just signed it and that he did not remember when or where he was or whether the claim form had been completed at the time he signed the document. At the conclusion of the bill of exceptions, appellant specifically offered the top part of the health insurance claim form, Items 1-12, and the related testimony of appellee into evidence for the purpose of showing a prior inconsistent statement by appellee for impeachment purposes.

We have carefully examined the specific portion (Items 1-12) of the claim form offered by appellant and find that it contained no description of any type of illness or injury allegedly sustained by ap-pellee. The “condition”, which was not related to his employment, could have referred to any number of undescribed illnesses or injuries. Therefore, the unidentified “condition” could not be used to impeach appellee’s statement that he had never taken the position that his present injury was not related to his employment. Also, the tendered portion of the claim form made reference to appellee as “insured” for purposes of health insurance coverage. The trial court did not err in sustaining appellee’s objection as to relevancy and to violation of the collateral source rule. Appellant’s sixth point of error is overruled.

In its seventh point of error, appellant complains of the trial court’s denial of its requested special issue and instruction as a denial of its right to the separate submission of its affirmative “sole cause” defense theory, to wit: the incapacity of appellee, if any, was caused solely by the injury to his right leg.

The trial court, in defining “producing cause” in its charge, without objection by appellant, instructed the jury regarding “sole cause” as follows:

“PRODUCING CAUSE” means an injury or condition which, either independently or together with one or more other injuries or conditions, results in incapacity, and without which such incapacity would not have occurred, when it did. There may be more than one producing cause of an incapacity, but there can be only one sole cause. If an injury or condition was the sole cause of an incapacity, then no other injury or condition could have been a producing cause. (Emphasis added).

As submitted in the court’ charge, appellee’s theory of the case was that ap-pellee was entitled to worker’s compensation benefits based upon a general injury to his back sustained during the course of his employment. Appellant’s requested issue and instruction attempted to disprove ap-pellee’s claim that his incapacity was caused by a general injury by inquiring whether appellee’s total incapacity was solely caused by a specific injury. Appellant’s requested issue and instruction did not represent an affirmative defense; rather, the requested issue, together with the requested instruction, constituted an inferential rebuttal issue. Gulf Ins. Co. v. Hodges, 513 S.W.2d 267 (Tex.Civ.App.—Amarillo 1974, no writ).

TEX.R.CIV.P. 277 provides that inferential rebuttal issues are to be submitted to the jury by way of an instruction. Charter Oak Fire Insurance Co. v. Taylor, 658 S.W.2d 227 (Tex.App.—Houston [1st Dist.] 1983, no writ); Select Insurance Co. v. Boucher, 551 S.W. 67 (Tex.Civ.App.—Houston [1st Dist.] 1977) affirmed, 561 S.W.2d 474 (Tex.1978). TEX.R.CIV.P. 277 only requires that the trial court submit such explanatory instructions and definitions as shall be proper to enable a jury to render a verdict. “The sufficiency of the explanations necessary to that end is largely left to the discretion of the trial judge.” McCane Sondock Detective Agency v. Penland Distributors, Inc., 523 S.W.2d 62 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). It is clear that the applicable standard of review is abuse of discretion. Charter Oak Fire Insurance Co. v. Taylor, 658 S.W.2d at p. 229. The trial court did not abuse its discretion in refusing appellant’s requested instruction regarding its “sole cause” defense, as the trial court had already submitted, without objection, an adequate explanatory instruction on “sole cause” in conjunction with its definition of “producing cause.” Appellant’s seventh point of error is overruled.

Appellant, in its eighth and ninth points of error, complains of the exclusion of evidence relating to certain forms of income received by appellee. Appellant argues that the excluded evidence should have been admitted because of its relevance to the issue of hardship. Appellant had previously offered to stipulate that any award received by appellee pursuant to a jury verdict would be paid in lump sum and that there would be no necessity for submission of the issue of hardship. The offer was rejected by appellee. During the trial, ap-pellee testified that it would be difficult for him and his family to live on a net weekly worker’s compensation benefits of approximately $99.00. In a bill of exceptions, ap-pellee testified that, since the accident in question, he had been receiving (1) $222.00 per month from a Veteran’s Administration pension, (2) assistance from the Texas Department of Human Resources in the form of more than $100.00 in food stamps and (3) social security benefits of at least $568.00 per month. Appellant tendered this testimony for limited consideration on the issue of hardship. The testimony was excluded on the basis of the collateral source rule.

Even though the testimony was relevant to the issue of hardship, the trial court did not abuse its discretion in excluding the tendered evidence on the basis of violation of the collateral source rule. See Pacific Employer’s Indemnity Co. v. Johnson, 448 S.W.2d 205 (Tex.Civ.App.— Beaumont 1969, no writ). In any event, in light of appellant’s offer to stipulate to the award of the lump sum, the exclusion of the evidence was harmless error. TEX.R. CIV.P. 434. Appellant’s eighth and ninth points of error are overruled.

In its tenth point of error, appellant asserts that the trial court erred in refusing to allow appellant to use an employee of its insured as a company representative during the trial. Appellant specifically requested that Mr. Holman be allowed to sit at counsel’s table during the trial for consultation purposes because he was “familiar with the operations” of the insured, Berry Contracting. Appellant has not cited and we do not find any cases which stand for the proposition that the trial court’s denial of the request could have possibly been reversible error. There is no showing in the record of what benefit Mr. Holman could have possibly rendered to appellant’s counsel in the preparation or presentation of the evidence except that Mr. Holman was “familiar with the operations” of the insured, Berry Contracting. The trial court did not abuse its discretion in denying appellant’s request. Appellant’s tenth point of error is overruled.

In its eleventh through fourteenth points of error, appellant alleges that the trial court erred in submitting its instruction to Special Issue No. 2 and in submitting Special Issue No. 6 because (1) each constituted a comment on the weight of the evidence by assuming appellee’s incapacity, if any, was caused by medical treatment and (2) each does not require the jury to find that the aggravating medical treatment was reasonable or necessary as a result of appellee’s back injury, if any. The instruction and special issue, of which appellant complains, follow:

SPECIAL ISSUE NO. 2
Was the injury a producing cause of any total incapacity?
You are instructed that where total incapacity results from medical treatment instituted to cure and relieve an employee from the effects of his injury, the total incapacity is regarded as having been caused by the initial injury since it is an aggravation regarded as a probable sequence and natural result likely to flow from the initial injury.
* * * * * *
SPECIAL ISSUE NO. 6
Find the reasonable costs of necessary and medical care required by James Gil-lum as a result of his injury, including its aggravation, if any, by medical treatment. (Emphasis added).

When read as a whole, the court’s charge, including both the instruction to Special Issue No. 2 and Special Issue No. 6, does not advise the jury to assume (1) that the aggravation of appellee’s back injury, if any, was caused by medical treatment or (2) that appellee’s incapacity, if any, was caused by the aggravating medical treatment, because of the use of the conditional terms, “where” and “if any,” which precluded said assumptions. See McDonald Transit, Inc. v. Moore, 565 S.W.2d 43 (Tex.1978).

Appellant did not plead that the aggravating medical treatment was unreasonable or unnecessary as the result of the initial injury. Even though appellant objected to the submitted special issues on the grounds that the special issues did not require the jury to find that the aggravating medical treatment was reasonable or necessary as a result of the initial injury, appellant did not properly request in written form his own special issues and/or instructions containing such a requirement. See TEX.R.CIV.P. 273-279; United States Fire Insurance Co. v. Monn, 643 S.W.2d 207 (Tex.App.—Fort Worth 1982, writ ref d n.r.e.).

Furthermore, appellant has not cited and we have not found any authority for the imposition of the “reasonable or necessary” requirement. The trial court correctly stated the law in its submission of Special Issue No. 2, as the instruction to Special Issue No. 2 utilized the language found in Western Casualty & Surety Co. v. Gonzales, 506 S.W.2d 303 (Tex.Civ.App.—Corpus Christi 1974), aff’d 518 S.W.2d 524 (Tex.1975), wherein our Court stated:

Where disability or death results from medical treatment instituted to cure and relieve an employee from the effects of his injury, it is regarded as having been proximately caused by the injury and is compensable; such aggravation is regarded as a probable sequence and natural result likely to flow from the injury. 62 Tex.Jur.2d, Workmen’s Compensation § 68, p. 621, and cases cited therein; Liberty Mutual Insurance Company v. Pool, 449 S.W.2d 121 (Tex.Civ.App.—Texarkana 1969, writ ref d. n.r.e.); McAdams v. Fidelity and Casualty Co. of New York, 406 S.W.2d 518 (Tex.Civ.App.—Houston 1966, writ ref’d. n.r.e.); Maryland Casualty Company v. Sosa, supra.

Western Casualty & Surety Co. v. Gonzales, 506 S.W.2d at p. 309. Appellant’s eleventh through fourteenth points of error are overruled.

The judgment of the trial court is AFFIRMED.

BISSETT, J., not participating.