author: REEVES, Justice.

text:
    Jose Maria AGUIRRE, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-00022-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 30, 1984.
    Rehearing Denied Jan. 4, 1985.

      Margil Sanchez, Jr., Rio Grande City, for appellant.
    Rudy Gutierrez, Hebbronville, for appel-lee.
    Before CADENA, C.J., and CANTU and REEVES, JJ.
   OPINION

REEVES, Justice.

Appellant was convicted of murder and the jury assessed punishment at fifty years’ confinement in the Texas Department of Corrections.

In his first ground of error, appellant alleges the trial court erred in denying his motion for instructed verdict because the State failed to prove venue. Appellant contends that the State failed to show that the offense occurred in the State of Texas.

The indictment charged appellant with the murder of the deceased occurring in Starr County, Texas. The State introduced into evidence through the testimony of a number of witnesses, including Chief Investigator Hilaria Saenz, Jr., Deputy Cornelio M. Garza, and Constable Gonzalo Bazan, that the homicide took place at La Casita in Starr County.

Venue is sufficiently proven if from the evidence it is shown that the offense was committed in the county alleged. TEX.CODE CRIM.PROC.ANN. art. 13.17 (Vernon 1977); Hignite v. State, 522 S.W.2d 210 (Tex.Crim.App.1975); and Skelton v. State, 626 S.W.2d 589 (Tex.App.—Texarkana 1981, no pet.). Here the State alleged and proved the offense occurred in Starr County as required by art. 13.17, supra, and this court takes judicial notice of the fact that Starr County is in the State of Texas. See Leyva v. State, 552 S.W.2d 158 (Tex.Crim.App.1977) and Houston v. State, 426 S.W.2d 868 (Tex.Crim.App.1968).

The first ground of error is overruled.

The second ground of error alleges the trial court committed reversible error in permitting the prosecution to argue to the jury in the opening statement, over objection, that the State of Texas and the people of the State were asking for a verdict of guilty.

Following the reading of the indictment and appellant’s plea thereto, the State made an opening argument to the jury. During the argument, the following occurred:

(The Prosecutor)
MR. RAMIREZ: Ladies and gentlemen, I’m going into the evidence that will come out. In the case-in-chief that we expect to present to you we expect to present several law enforcement officers to testify as to the investigation they conducted in regards to this shooting, then we also expect to show some expert testimony on the ballistics examination of the witnesses.
We also have expert testimony by the doctor who autopsied the body of Oscar Javier. We also expect to present one eyewitness and other lay witnesses that are involved in the case. I would ask, ladies and gentlemen, to keep in mind that we are here to arrive at the truth. We . are here to do justice. Ladies and gentlemen, throughout the testimony of the different witnesses there may be different discrepancies among their testimony.
(Defense Counsel)
MR. SANCHEZ: Objection, that is outside the scope of the opening statement. I think he’s limited, under the code, to present the evidence that he expects to show, whether there are any discrepancies that’s for the jury to decide.
THE COURT: The objection will be sustained.
MR. RAMIREZ: I’m going to tell you, ladies and gentlemen, that you are the sole judges, as we said, that is are the witnesses credible, who is telling the truth and who is not. I would ask you to decide that that is your role. Finally, ladies and gentlemen, at the end of this total case that the State of Texas will ask you, ladies and gentlemen, that you bring back a guilty verdict.
(Defense Counsel)
MR. SILVA: We object to the State’s opening statement to the jury in the nature of the accusation and the facts which are expected to be proved by the State and support thereafter — therefore, to limit the opening statement, that is for the jury argument. He is making a closing summation. We ask the Court to admonish counsel to stay withing [sic] the realm of the Code of Criminal Procedure.
MR. RAMIREZ: May I respond to the objection?
I stayed within the bounds of the opening statement. I can bring case law to back my statement.
MR. SILVA: What is the ruling on the objection?
THE COURT: Objection is overruled.
MR. RAMIREZ: In closing I will, that is the people of the State, ask you to bring back a guilty-verdict of Jose Maria Aguirre for the murder of Oscar Javier Lopez.
Thank you very much.
THE COURT: Will you call your first witness.
MR. RAMIREZ: The State calls Mr. Hilario Saenz.

Generally, any impropriety in the prosecutor’s argument to the jury is waived by a defendant’s failure to make a proper, clear and timely objection. Euziere v. State, 648 S.W.2d 700 (Tex.Crim. App.1983). Additionally, an objection raised on appeal will not be considered if it varies from the objection made at trial. Euziere v. State, supra, and Seals v. State, 634 S.W.2d 899, 909 (Tex.App.—San Antonio 1982, no pet.). An examination of the objection made by appellant reveals that it is nothing more than a general objection, insufficient to direct the trial court’s attention to a specific complaint, and presents nothing for review. Cf. Earnhart v. State, 582 S.W.2d 444, 449 (Tex.Crim.App.1979) (“... not a proper argument, not a proper statement. We object to his making a statement like that,” held too general and did not notify trial court of grounds for objection) and De Russe v. State, 579 S.W.2d 224, 234 (Tex.Crim.App.1979) (objection that argument is “prejudicial, outside of the record and prejudicial to defendant” too general and presented nothing for review.) The nebulous objection made by appellant at trial is clearly not the same objection as he now raises on appeal, and thus the error claimed herein on appeal is not preserved for review. See Jackson v. State, 516 S.W.2d 167, 174-175 (Tex.Crim.App.1974) and Seals v. State, supra at 909.

We also note that had appellant’s objection to the first portion of the prosecutor’s argument been proper, we fail to perceive error. The argument is similar to an argument presented at the close of the evidence in Spencer v. State, 466 S.W.2d 749, 754 (Tex.Crim.App.1971) wherein the prosecutor argued:

Ladies and Gentlemen, the State has proved its case. We are entitled and Dallas County is entitled to a verdict of guilty.

The court held that this amounted to a plea for a conviction. It did not mention public opinion or what the people of Dallas County wanted or expected the jury to do. Spencer v. State, supra at 754. This reasoning seems applicable to the instant case with regard to the prosecutor’s first remark and under Spencer v. State, supra, no error is shown.

The second reference in the latter portion of the prosecutor’s argument seems to have overstepped the subtle distinctive bounds of Spencer v. State, supra, by injecting what the people of this State wanted the jury to do. As the record reflects, this occurred right before the State called its first witness and appellant made no objection to the argument. As was previously mentioned, any impropriety in the State’s argument is waived by a defendant’s failure to make a proper and timely objection. Euziere v. State, supra. An exception to this general rule occurs where the argument of the prosecutor is so prejudicial that an instruction to disregard will not cure the harm. Romo v. State, 631 S.W.2d 504 (Tex.Crim.App.1982). Specifically noting this argument was made prior to any evidence being presented in the case, we believe that any error therein was not so prejudicial that it could not have been cured by an instruction by the trial court. For this reason, appellant’s failure to object waived any error. See Curtis v. State, 640 S.W.2d 615 (Tex.Crim.App.1982) and Mahan v. State, 586 S.W.2d 488 (Tex.Crim.App.1979).

The second ground of error is overruled.

The third ground of error alleges the trial court erred in permitting the State to present testimony of an oral statement allegedly made by appellant while in custody in contravention of TEX.CODE CRIM. PROC.ANN. art. 38.22 (Vernon 1979).

Deputy Sheriff Cornelio M. Garza testified that while conducting his investigation at the scene of the offense, he was contacted by the Sheriff’s dispatcher. After speaking with the dispatcher, he and Constable Bazan proceeded to the residence of Elias Aguirre, appellant’s father. Arriving there, Garza spoke with the elder Aguirre and asked to speak with his son, the appellant. When he met appellant at the home, Garza immediately informed appellant of his rights, both in Spanish and English. After the warnings, appellant told Garza that he, appellant, had killed Oscar Javier Lopez. Garza then placed appellant under arrest and asked appellant for the weapon. Appellant told Garza he had the weapon and then appellant told his father to get it from inside the house. Elias Aguirre, appellant’s father, returned with the shotgun, State’s Exhibit No. 7, and gave it to Garza.

At the hearing outside the presence of the jury, appellant indicated he understood the warning given him by Garza.

At trial, during his testimony on direct examination, appellant testified that he told his father to call the Sheriff’s Department. The reason for this was because he wanted the officers to know he shot the deceased in self-defense. He testified that he co-operated with them and gave them the shotgun.

Appellant, on direct examination, testified that he shot the deceased with the shotgun in defense of himself and his brothers.

On cross-examination, appellant identified State’s Exhibit No. 7 as the shotgun he used to kill the deceased, Oscar Javier Lopez.

A review of the entire record reveals that appellant made a voluntary oral statement to Deputy Garza, after properly being warned of his Miranda rights, and this oral statement led to the instrument with which the offense was committed. See TEX.CODE CRIM.PROC.ANN. art. 38.22 § 3(c) (Vernon 1984) and Lopez v. State, 535 S.W.2d 643 (Tex.Crim.App.1976).

Additionally, it is well established that the admission of improper evidence cannot be urged as grounds for reversal where the defendant gives testimony on direct examination which establishes the same facts as those to which an objection was addressed. Thompson v. State, 652 S.W.2d 770 (Tex.Crim.App.1983). As was noted, appellant admitted on direct examination that he killed the deceased. He also admitted on direct examination that he had his father contact the Sheriff’s Department so that he could tell them he shot the deceased in self-defense. No error is shown.

The third ground of error is overruled.

In his fourth ground of error, appellant alleges the trial court erred in allowing the prosecutor to cross-examine a witness with an extra-judicial statement allegedly made by a non-testifying witness.

Mrs. Maria Elena Villarreal testified that on the date of the alleged offense she arrived at her home along with her daughter, Maria Antonia Villarreal, three sons and her brother-in-law. Momentarily thereafter, the Aguirre brothers arrived followed by the Lopez brothers and the alleged incident unfolded on the Villarreal property. After describing the events, Mrs. Villarreal testified that she sent her daughter to assist the wounded Jesus Lopez.

On cross-examination, the prosecutor attempted to establish that on the date of the offense, but subsequent to its commission, Mrs. Villarreal denied that she had seen anything when asked by Deputy Cornelio Garza. Her answers regarding this issue are not clear. It seems that at first she denied that any officer spoke to her regarding the incident, while some of her answers indicate that the reason for her action was that she did not want to get involved. She testified that the only person the officers spoke to was her husband. When asked if her daughter, Maria Antonia Villarreal had given a statement, Mrs. Villarreal stated: “They brought her here, after that I don’t know.” In response to further questioning, she indicated that all her daughter saw of the event was after it occurred and the Lopez brother was on the ground. Thereafter, the prosecutor questioned Mrs. Villarreal as to why her daughter, Maria Antonia, would give a statement to the sheriffs department and district attorney’s office, if Maria Antonia had not really seen anything? The prosecutor asked if Maria Antonia had given a statement indicating she had seen the Aguirres get out of the truck with the “rifle” [sic] was Maria Antonia mistaken or lying. The witness insisted it must have been a mistake.

Maria Antonia Villarreal was never called as a witness.

The action of the prosecutor in questioning the witness concerning what a non-testifying witness may or may not have said in an out-of-court statement, if that statement existed, was clearly improper and should not have been permitted. The cross-examination involved hearsay, a collateral issue which was never factually established by the record, and called for conclusions from the witness on a matter of which she claimed she had no knowledge in the first place.

Although we find the action of the prosecutor totally improper in this regard, our duty is to determine from the entire record the probable impact of the erroneously admitted testimony upon the minds of an average jury. See Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App. 1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 169 (1982). “A judgment will not be reversed for admission of evidence that did not injure the accused. The question is whether there is a reasonable probability that the evidence complained of might have contributed to the conviction.” Gutierrez v. State, 628 S.W.2d 57, 62 (Tex. Crim.App.1982). “Unless we find a reasonable possibility that the improperly admitted evidence contributed to appellant’s conviction, reversal is not required.” Vanderbilt v. State, supra at 724.

Examining this area of improper cross-examination by the prosecutor in light of the entire evidence presented in the record, we find that reversal is not required. Appellant admitted shooting both Lopez brothers with a shotgun and claimed self-defense and defense of third persons. Whether or not appellant or his brothers initially exited their truck with a “rifle,” or shotgun, does not affect the only central issues in the case of whether or not immediately prior to the shootings appellant was defending himself and/or his brothers. There was no testimony from any witness that the Aguirres exited their truck with any type gun. Even the State’s sole eye witness, Jesus Lopez, stated that after each side faced each other, Jose Guadalupe Aguirre had to run back to the Aguirre’s truck to get the shotgun. Under all the facts presented, we find no reversible error. The fourth ground of error is overruled.

Appellant’s fifth ground of error is the trial court erred in excluding the testimony of Carlos Vera as rebuttal evidence to establish that appellant did not have contact with anyone, especially family members, prior to making his statement to the police. Appellant asserts this testimony was necessary to rebut the State’s inference during cross-examination of appellant that appellant and his brother fabricated that portion of their statements in which they claimed the Lopez brothers had a tire tool at the time of the incident.

The record reflects that after the State closed, the following occurred:

THE COURT: Does the Defense have any rebutable [sic] witnesses?
MR. SANCHEZ: I might have one from the sheriff’s department — from the dis- • trict attorneys office.
Call Carióse Vera to the stand.
(Conference at the Bench).
MR. SANCHEZ: Can I have my other rebutable [sic] evidence on the Bill.
THE COURT: Not before the jury.
MR. SANCHEZ: I close.
THE COURT: The Court is going to grant you your bill, but other than the bill that’s what I’m saying.

The jury was then excused. Carlos Vera, chief jailer was called for the bill of exception. Vera testified as to the visitation policy at the jail. Appellant seems also to have attempted to establish through Vera on what dates appellant’s wife visited him and the fact that she was not granted any special exception regarding the visitation policy.

In his brief, appellant asserts that his bill of exception has preserved this point for our review. We disagree.

It is well established that a bill of exception must be complete within itself and must stand or fall by its own allegations, and it must plainly set out any error sought to be preserved for review. Garza v. State, 622 S.W.2d 85 (Tex.Crim.App. 1981). A bill of exception relating to the exclusion of evidence must set forth the evidence offered, the objections made thereto, the ruling of the court and such facts as may be necessary to disclose its relevancy, materiality and competency. See Clark v. State, 142 Tex.Crim.R. 554, 154 S.W.2d 255 (1941) and West v. State, 141 Tex.Crim.R. 233,147 S.W.2d 791 (1941). The appellate court will not indulge in inferences to supply the omission of essential statements in a bill of exception. Clark v. State, supra.

The bill of exception before us does not disclose the objection made to the offered evidence; it does not disclose for what purpose the evidence was being offered; and it does not show the ruling of the court. A fair reading of the “preserved” testimony does not even seem to facially relate to the issue for which appellant claims in his brief it was being offered. Assertions in an appellate brief not supported by the record will not be accepted as fact. Herrin v. State, 525 S.W.2d 27 (Tex.Crim.App.1975).

Since the bill of exception is not complete in itself, nothing is preserved for review. See Garza v. State, supra, and Herrin v. State, supra. Appellant’s fifth ground of error is overruled.

The sixth ground of error alleges that the evidence is insufficient to sustain the conviction and that appellant’s motion for instructed verdict should have been granted. Appellant bases his support upon portions of appellant’s written statement, introduced by the State as State’s Exhibit No. 6 wherein appellant admits shooting the deceased, that are exculpatory in nature. Appellant claims the State did not disprove those exculpatory portions wherein appellant states they were chased by the Lopez brothers and that a tire tool was thrown by Javier Lopez striking appellant’s brother on the chest.

Generally, appellate courts will not consider arguments in a brief which refer to items not included in the record. Short v. State, 658 S.W.2d 250 (Tex.App.—Houston [1st Dist.] 1983, pet. granted). State’s Exhibit No. 6, along with every other exhibit introduced in this case, is not in the record before us. Appellant’s assertions in his brief, as to what is contained in State’s Exhibit No. 6 is thus unsupported and cannot be accepted as fact. See Davila v. State, 651 S.W.2d 797 (Tex.Crim.App. 1983). However, even if taken as correct, we find that the evidence is sufficient to sustain appellant’s conviction. A brief summary of the testimony adduced at trial, which is in the record before us, is all that is necessary to clearly show that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). In reviewing the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict or judgment. Houston v. State, supra.

Jesus Lopez, the deceased’s brother, testified that he and his brother followed the Aguirres to the Villarreal residence on the date in question. Jesus Lopez said the Aguirres had driven past the Lopez residence four times that day making obscene gestures at the Lopez brothers. Jesus Lopez denied a high speed chase of the Aguirre truck was involved and denied that he and his brother tried to run the Aguirres' truck off the road. They followed the Aguirres to confront them and find out why the Aguirres were harassing them. He denied he or the deceased had any weapon including a tire tool. As members of each family got out of their respective trucks at the Villarreal residence, he observed that appellant’s brother, Jose Guadalupe Aguirre, had a knife. Jose Guadalupe Aguirre theri got a shotgun and pointed it at Jesus and Oscar Javier Lopez. No words were exchanged. When the Lopez brothers saw the shotgun, they stopped. Appellant then took the shotgun from his brother, Jose Guadalupe Aguirre, and first shot Jesus Lopez and then shot and killed Oscar Javier Lopez. According to Jesus Lopez, the violent attack was unprovoked. He denied having a weapon and denied throwing anything at Jose Guadalupe Aguirre.

The defense version was different. According to the defense witnesses, the parties arrived at the Villarreal residence following a high speed chase started by the Lopez brothers. According to appellant and his brother, Jose Guadalupe Aguirre, when the Lopez brothers got out of their truck, Jesus Lopez had a tire tool in his hand. Jesus Lopez threw the tire took striking Jose Guadalupe Aguirre. Appellant told Jose to go to the truck and get appellant’s shotgun. When Jose returned with the shotgun, appellant claimed that Jesus Lopez had retrieved the tire tool and was coming towards them. Appellant then shot Jesus Lopez causing him to fall backward and dropping the tire tool. According to appellant, Oscar Javier Lopez said, “You killed my brother, now you are going to have to kill me. You son of your stinking mother.” While he said that Oscar Lopez reached for the tire tool, appellant loaded another round into the shotgun. As soon as he saw that Oscar Lopez had reached down, grabbed the tool and was about to, or in the process of standing up, appellant shot Oscar Lopez, killing him. Appellant testified that he shot the Lopez brothers in self-defense and in defense of his brothers. Appellant testified that Oscar Lopez never did threaten him. In response to questioning, appellant testified that Oscar Lopez never raised the tire tool as if to strike appellant. Appellant said he shot Oscar Lopez so as to not give Lopez the chance to attack him, the appellant. Appellant did state that he was afraid of being attacked.

In a criminal case, if there is conflicting evidence, the jury verdict will not be disturbed provided there is sufficient evidence to support that verdict. Mahavier v. State, 644 S.W.2d 129 (Tex.App.—San Antonio 1982, no pet.). Here, the testimony of Jesus Lopez was sufficient, if believed by the jury, to support a knowing and intentional murder of Oscar Javier Lopez by appellant as charged under TEX.PENAL CODE ANN. § 19.02(a)(1) (Vernon 1974). Also if believed, the testimony of Jesus Lopez, that he and his brother did not have a tire tool nor any other weapon, and were not threatening the Aguirres in any manner, would have been sufficient evidence to disprove any exculpatory portion of appellant’s statement, also introduced by the State, that the Lopez brothers pursued the Aguirres and threw a tire tool striking Jose Guadalupe Aguirre. Cf. Sloan v. State, 515 S.W.2d 913 (Tex.Crim. App.1974) (threats made by defendant against deceased sufficient to disprove exculpatory statement of killing in self-defense that arresting officer related that defendant made). The sixth ground of error is overruled.

In two grounds of error appellant complains of the court’s charge to the jury regarding voluntary manslaughter. The seventh ground of error alleges the voluntary manslaughter charge failed to include the culpable mental state of “knowingly.” By only including the culpable mental state of “intentionally” in that portion of the charge dealing with voluntary manslaughter, appellant claims the trial court raised the burden of proof for voluntary manslaughter. The. eighth ground of error alleges that the charge applying to murder and voluntary manslaughter is fundamentally defective under Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1984).

A charge on voluntary manslaughter is required only when there is evidence that the appellant acted under the immediate influence of sudden passion arising from an adequate cause. Lamb v. State, 680 S.W.2d 11 (Tex.Crim.App.1984). A close examination of the evidence in this cause reveals that the issue of voluntary manslaughter was not raised by the evidence presented by the State and was, in fact, negated by appellant’s own testimony.

Viewed in the light most favorable to appellant, the confrontation between the parties followed a high speed chase on the highway. Appellant stopped his truck at a house belonging to his relatives, the Villar-reals’. Appellant and his brothers exited from the truck. Jesus Lopez and Oscar Lopez stopped their truck, exited and faced the appellant and his brothers. The parties were approximately three to ten yards apart. According to appellant, Jesus Lopez was carrying a tire tool which he threw, striking appellant’s brother, Jose Aguirre, on the arm. Appellant told Jose G. Aguirre to go get appellant’s shotgun from appellant’s truck. When his brother returned with the shotgun, appellant grabbed it. Appellant, then saw that Jesus Lopez had retrieved the tire tool and was walking straight towards him. Appellant fired. The shot struck Jesus Lopez in the arm causing him to drop the tire tool and stumble backwards. Oscar Lopez then told appellant, “You killed my brother, now you are going to have to kill me. You son of your stinking mother.” When he saw that Oscar Lopez was going to reach for the tire tool, appellant loaded another round into the shotgun. As soon as he saw that Oscar Lopez had reached down, grabbed the tool and was about to, or in the process of standing up, appellant shot Oscar Lopez, killing him. Appellant testified that he shot the Lopez brothers in self defense and in defense of his brothers. Appellant testified that Oscar Lopez never did threaten him. In response to questioning, appellant testifies that Oscar Lopez never raised the tire tool as if to strike appellant. Appellant said he shot Oscar Lopez so as to not to give Lopez the chance to attack him, the appellant. Appellant did state that he was afraid of being attacked.

The scenario depicted here is similar to that in Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App.1983) in which the deceased threatened to kill the defendant and reached into his back pocket. The defendant, fearful that the deceased was reaching for a gun and fearful for his life, killed him. The Court noted that while entitled to a charge on self-defense, this does not necessarily raise the issue of voluntary manslaughter merely by indicating that at the moment of taking action to defend himself he was fearful of his attacker. Daniels v. State, supra at 460. the other hand, ‘fear’ that rises to the level of ‘terror’ may constitute sudden passion when its cause is such that would commonly produce a degree of terror ‘sufficient to render the mind incapable of cool reflection’ _” Daniels v. State, supra at 460. The Court concluded that, “Manifestly, appellant’s own appraisal of his situation reveals that he had reflected on it, knew what he had to do and did it.” Daniels v. State, supra at 460. This same rationale is equally applicable here. There is no evidence that appellant acted under the immediate influence of sudden passion arising from an adequate cause and appellant was not entitled to a charge on voluntary manslaughter. See Daniels v. State, supra. Since appellant was not entitled to a charge on voluntary manslaughter, the submission of the charge on voluntary manslaughter, even if erroneous, was a more beneficial charge than appellant was entitled to under the evidence. See Wilson v. State, 71 Tex. Crim. 399, 160 S.W. 83 (1913); Eggleston v. State, 59 Tex.Crim. 542, 128 S.W. 1105 (1910); see also Lamb v. State, supra. A conviction will not be reversed nor may an appellant complain of a beneficial charge erroneously submitted. Ex parte Green, 548 S.W.2d 914 (Tex.Crim.App.1977) and Perez v. State, 629 S.W.2d 834 (Tex.App.—Austin 1982, no pet.). No reversible error is shown. The seventh and eighth grounds of error are overruled. On

In the ninth and tenth grounds of error, appellant alleges the trial court erred in refusing to grant his motion for new trial based upon the jury having received other evidence, after having retired to deliberate, and jury misconduct in considering the effect of parole in assessing punishment.

As to the receipt of other evidence, appellant relies upon two affidavits submitted by Juror Remigio Pena. In the first affidavit, Pena states that he was originally for a punishment term of less than fifty years. Pena further states that Juror Guadalupe Castaneda stated that if the jury assessed a fifty year prison term appellant would be released on parole after serving only ten years. As a result of this statement, Pena, in his affidavit, states he agreed to increase his recommendation of punishment to fifty years. Appellant also claims the discussion of parole constitutes jury misconduct.

The “other evidence” relied upon by appellant is found in Juror Pena’s second affidavit. In this affidavit, Pena asserts that he visited the scene of the offense on three occasions and informed the jurors, during deliberations, that they should not go by the diagrams and sketches in evidence, that he had visited the scene and explained the layout of the scene as he had observed it.

The final portion of “other evidence” in this second affidavit refers to the punishment deliberations. According to Pena, one juror stated that appellant was not the one who shot the deceased, but it was appellant’s brother, Jose Guadalupe Aguirre, who shot the deceased. This same juror then stated that since appellant was willing to cover up for his brother, appellant must not care very much for his wife and children.

At the hearing on appellant’s motion for new trial, Juror Pena testified that he had requested appellant’s attorney to remove Juror Guadalupe Castaneda’s name from the first affidavit. Pena also testified, contrary to the first affidavit, that any statement made concerning parole did not influence his decision as to punishment.

As to visiting the scene, Juror Pena indicated that he did not actually visit the scene, but had passed by it in his car on two or three occasions and glanced at the area as he drove past it. At most, Pena admitted that he told the jury to disregard the sketches and diagrams because the number of cars as testified to at trial could not have fit in the area depicted. Pena also stated that he and the other jurors were aware, based upon the prosecution’s assertions at trial, that the sketches were not to scale.

The State introduced seven affidavits from seven jurors, including one from Jur- or Guadalupe Castaneda. These seven affidavits were identical to each other in content and form. The pertinent portion of each affidavit is as follows:

I sign this affidavit of my own free will and no one has promised me consideration or forced or threatened me to sign this statement. I have read the Motion for New Trial and attached affidavits in the above-styled and numbered cause and I wish to respond as follows:
During the discussion of the punishment to be assessed on Jose Maria Aguirre a reference was made that the defendant, if sentenced to life, would probably not serve the whole sentence. This was the only reference made to the parole laws during deliberations. There was no discussion of this comment and I am of the opinion that the facts in this statement are common knowledge. There was no comment made by any juror concerning any specific number of years the defendant would actually serve if sentenced to a 50 year term.
I did not increase my recommendation of the punishment to be assessed in this case as a result of this comment.
One juror did state that that juror had heard that the brother of the defendant may have committed the murder. As soon as this statement was made, Mrs. Anita P. Guzman stated that the brother “was not the person on trial” and there was no evidence presented in this regard. No further comment was made on this matter. This comment did not affect my deliberation or alter my recommendation as to punishment.
During the deliberations on whether or not Jose M. Aguirre was guilty, Mr. Remigio M. Pena stated that he had visited the scene of the crime once and it was his opinion that the sketches of the scene introduced into evidence were not accurate. This was no surprise to me, as the Assistant District Attorney had stated during the examination of witnesses that the sketches were “not to scale”.
I did not take Mr. Pena’s comment as evidence nor did I disregard the admitted “evidence” sketches as a result of this comment.
I do not remember any juror commenting that Jose M. Aguirre was covering up for his brother and as such, did not care very much about his wife and children.

Further, this affiant sayeth not.

In order to mandate a new trial under TEX.CODE CRIM.PROC.ANN. art. 40.03(7) (Vernon 1979), it must be shown that other testimony or other evidence was actually received by the jury, and that such evidence was detrimental to the appellant. Garza v. State, 630 S.W.2d 272 (Tex.Crim. App.1981). Additionally, it is the character of the evidence that controls the determination of this issue. See Alexander v. State, 610 S.W.2d 750 (Tex.Crim.App.1980).

The information given to the jurors by Juror Pena that the diagrams admitted into evidence were not accurate as he had observed the scene does constitute “other evidence.” Yet, the character of the evidence clearly reveals that it could not have been detrimental to the accused. Appellant admitted shooting the deceased. The only disputed fact issues revolved around whether or not appellant was defending himself and others from an attack by the complainant. The positioning of the vehicles or how many vehicles could actually fit into the scene was of no consequence in deciding the disputed issues.

The jurors’ affidavits, relied upon by the State, show that the jurors were already aware that the sketches or diagrams were not to scale. Even though they were aware the sketches were not to scale, and despite Juror Pena’s remarks, the jurors did not disregard the admitted sketches.

Under the circumstances presented, we find this “other evidence” not to have been detrimental to appellant. But see Trevino v. State, 582 S.W.2d 111 (Tex. Crim.App.1979).

The comment by one juror, that the juror had heard that appellant’s brother had shot the deceased, likewise constitutes “other evidence” received by the jury. The jurors affidavits supplied by the State confirm that this particular statement was made but immediately thereafter, Juror Guzman stated that the brother was not the person on trial. The affidavits further reflect no further evidence or comment was made in regard to this matter.

The portion of the affidavits signed by the jurors stating that no further comment was made refutes the allegation, in Pena’s affidavit, that this juror additionally stated that appellant must not care for his wife and children if he were willing to cover up for his brother.

Thus, if the State’s evidence was relied upon by the trial court, as it had the discretion to do, the only remark made was that the juror had heard that appellant’s brother had shot the deceased, followed by the cautionary instruction of Juror Guzman and no further comment was made regarding this matter.

Generally, improper statements made casually or incidentally during jury deliberations will not compel the granting of a new trial if jurors do not further discuss them. See Rodriguez v. State, 661 S.W.2d 332 (Tex.App.—Corpus Christi 1983, pet ref’d). A trial court’s decision regarding an issue of fact as to jury misconduct will not be reversed unless there has been an abuse of discretion. Jones v. State, 596 S.W.2d 134 (Tex.Crim.App.1980). Such is the situation before us and we find no abuse of discretion by the trial court in its decision regarding this issue. See Jones v. State, 641 S.W.2d 545 (Tex.Crim.App. 1982); Nacol v. State, 590 S.W.2d 481 (Tex. Crim.App.1979); and Rodriguez v. State, supra.

The evidence presented on the issue of a discussion by the jurors of parole and the length of time appellant would serve is also conflicting. Juror Pena stated in his affidavit that he was originally for a prison term of less than fifty years but agreed to the fifty year prison term after a juror said that appellant would be released on parole after serving only ten years. At the hearing on the motion for new trial, and in response to questioning by the prosecutor, Pena said that it was untrue that he increased his recommendation on punishment due to the statement on parole and the length of time appellant would have to serve.

The juror’s affidavits introduced by the State alleged that the only reference to parole, during the entire deliberations, was that if appellant were sentenced to life he would probably not serve the whole sentence. In these affidavits, the jurors specifically deny that any juror made a comment concerning any specific number of years appellant would have to serve if sentenced to fifty years.

To show that a jury’s discussion of the parole law constitutes reversible error under either § 7 or § 8 of TEX.CODE CRIM.PROC.ANN. art. 40.03 (Vernon 1979), it must be shown that there was (1) a mis-statement of the law, (2) asserted as a fact, (3) by one professing to know the law, (4) which is relied upon by other jurors, and (5) who for that reason change their vote to a harsher punishment. Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (On rehearing) (not yet reported). Further, determination of the issues of fact as to jury misconduct at a hearing on motion for new trial are for the trial court and when there is conflicting evidence, there is no abuse of discretion in overruling the motion for new trial. Id.

In light of the conflicting evidence presented to the trial court regarding the jury’s discussion of parole, the five prong test recently set out in Sneed v. State, supra, has not been established and no abuse of discretion by the trial court has been shown.

The ninth and tenth grounds of error are overruled.

Appellant’s eleventh ground of error alleges the trial court erred in denying his motion for mistrial when it became evident that the prosecution had suppressed demonstrative evidence favorable to appellant. The evidence of which appellant complains are photographs, taken the day after the alleged offense by Deputy Cornelio Garza, showing a bruise on the arm of Jose Guadalupe Aguirre, appellant’s brother. Appellant claims that because the photographs were given to him prior to the State’s last witness on the guilt-innocence phase, and prior to the State resting, he was denied the opportunity to cross-examine the previous State’s witnesses.

Although the evidence regarding the actions of the parties regarding these photographs is diffused throughout the record, a total review of the evidence does not support appellant’s contention that the State suppressed the photographs nor that his cross-examination of the State’s witnesses was hindered.

The record reflects that on October 26, 1982, and immediately prior to trial, the State tendered to the trial court, for an in camera inspection, certain photographs which appellant claimed were exculpatory. Appellant claimed that these photographs were of appellant’s brother, Jose Guadalupe Aguirre, and showed a bruise on his arm. Appellant indicated that the photographs would show the injury was the result of an attack. The trial court denied appellant the photographs until some evidence arose in the case which would give them some probative value. Suppression by the prosecution of evidence favorable to the accused violates due process when the evidence is material to guilt or punishment. Hawkins v. State, 660 S.W.2d 65 (Tex.Crim.App.1983) and cases cited therein. Here, the trial court denied appellant, temporarily, the use of the photographs which the State correctly tendered to the trial court for a decision on the issue prior to the commencement of trial. To characterize this action by the State as suppression of evidence favorable to the accused is ludicrous. Further, in Losoya v. State, 636 S.W.2d 566, 571 (Tex.App.—San Antonio 1982, no pet.), this court stated:

... The rule in Texas is that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) in addition to applying to suppression of evidence by the prosecutor, applies “to situations where evidence favorable to the accused is not turned over to the accused prior to or during trial, thus depriving him of the opportunity to use it in his defense.” (Emphasis added.) Juarez v. State, 439 S.W.2d 346 (Tex.Cr.App.1969). Our courts also hold that disclosing evidence at trial affords the accused the opportunity to request a postponement or a continuance and this adequately satisfied the due process requirements of Brady. Payne v. State, 516 S.W.2d 675 (Tex.Cr. App.1974).

Here, the record reflects that the photographs were turned over to appellant during trial. Appellant had nine of these photographs identified but only offered three into evidence. These three photographs were admitted during defense testimony at the guilt-innocence phase. Appellant never sought a recess, let alone a postponement or continuance, because of the time of the disclosure. Payne v. State, 516 S.W.2d 675 (Tex.Crim.App.1974) (ten days pre-trial disclosure of witness’ statement not required in Texas under Brady).

Appellant has failed to show how or in what manner his cross-examination of the State’s witnesses was limited. No bill of exception was perfected and generally, under such circumstances, nothing is presented for review. See Toler v. State, 546 S.W.2d 290 (Tex.Crim.App.1977).

Appellant has failed to show how, if earlier received, the photographs would have advanced his defense or materially affected the guilt-innocence or punishment issues before the jury. See Losoya v. State, supra. Appellant has even failed to have the photographs included in the record before us. The eleventh ground of error is overruled.

In his last ground of error, appellant alleges that the accumulation of errors, as listed in his first through eleventh grounds, deprived him of a fair and impartial trial and constitutes reversible error.

This ground of error is not in compliance with TEX.CODE CRIM.PROC.ANN. art. 40.09, § 9 (Vernon 1984) and presents nothing for review. McIlveen v. State, 559 S.W.2d 815 (Tex.Crim.App.1977) and Gantz v. State, 661 S.W.2d 213 (Tex.App.—San Antonio 1983, pet. ref’d). Further, we find no error that can be cumulated in the record before us. See Henry v. State, 567 S.W.2d 7, 9 (Tex.Crim.App.1978) and Gantz v. State, supra. The twelfth ground of error is overruled.

The judgment is affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: TIJERINA, Justice.

license: Public Domain

text:
    CITY OF SAN ANTONIO, By and Through its Agent, CITY PUBLIC SERVICE BOARD, Appellant, v. Jose S. MIRANDA, Appellee.
    No. 04-83-00410-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 30, 1984.
    Rehearing Denied Dec. 26, 1984.

      Raul M. Calderon, Matthews & Bran-scomb, San Antonio, for appellant.
    Lawrence G. Morales, San Antonio, for appellee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a judgment in a worker’s compensation case. Appellant, a self-insured city, filed suit to set aside the award of the Industrial Accident Board and appellee counter-claimed for worker’s compensation benefits. The jury found that appellee was totally and permanently incapacitated, awarding compensation in the sum of $35,757.08. Appellant’s motion for judgment notwithstanding the verdict and motion for new trial were overruled.

It is undisputed that appellee sustained an injury to his right shoulder on January 25, 1978, while in the course and scope of his employment for appellant. Appellee was assigned to the Overhead Construction Division, and on the date of the accident he was operating a jack hammer. The stem of the jack hammer broke, causing appellee to fall and strike his right shoulder against the hammer’s handle. The worker testified he had continuous pain and worked with pain since the date of the injury. He first consulted a physician several days after the accident and was told that he had a pulled muscle. He continued to work and in December, 1978, he had gall bladder and hernia surgery. In March of 1980, Dr. Williams performed rotator cuff surgery on appellee’s right shoulder and repaired a rotator cuff tear. The doctor testified that the disability to appellee’s right upper extremity was permanent and that future surgery was indicated. Appellee filed his claim for compensation with the Industrial Accident Board on June 1, 1979.

In points of error one through five appellant complains that the trial court erroneously entered judgment based on the jury’s answers to special issues one, two, and three. Appellant contends that there was no evidence or insufficient evidence to support the finding that appellee was totally incapacitated. Appellant further argues that appellee judicially admitted he was not totally incapacitated. The pertinent special issues and jury answers are as follows:

Special Issue No. 1

Do you find from a preponderance of the evidence that Plaintiff's injury of January 25, 1978, was a producing cause of any total incapacity?
“Total incapacity” does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of any particular trade or occupation, to such an extent that he cannot get or keep employment.
Answer “Yes” or “No.”
Answer: Yes

Special Issue No. 2

What do you find from a preponderance of the evidence to be the beginning date of such total incapacity, if any, sustained by Plaintiff?
Answer: January 25, 1978

Special Issue No. 3

Do you find from a preponderance of the evidence that the total incapacity, if any, sustained by Plaintiff as a result of the injury of January 25, 1978, has been and will be permanent or has been or will be temporary?
Answer “Permanent” or “Temporary.”
Answer: Permanent

Our initial task is to address the no evidence point. We are required to view the evidence in the light most favorable to the verdict, and to consider only the evidence and inferences that support the verdict. Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 191 (Tex.1980). The evidence and inferences that support the jury findings and the verdict are as follows:

(1) Appellee received an injury to his right shoulder on January 25, 1978. He reported the injury to his foreman, who told him to take some Bufferin.

(2) On the Monday next following the accident he went to see Dr. Luedemann concerning his right shoulder and was told he had a pulled muscle. Appellee was referred to Leudemann by appellant. The doctor advised him to return to work.

(3) He testified he continued working with pain in his right shoulder.

(4) His usual job was to stand poles, shovel, and dig holes.

(5) He had been working for appellant for twenty-six years.

(6) Dr. Williams performed rotator cuff surgery on appellee’s right shoulder and repaired a rotator cuff tear in March 1980.

(7) Dr. Williams testified that the incapacity to appellee’s right shoulder was permanent and that future surgery was indicated.

(8) Appellee continued working after the date of the injury because he was getting $46.51 a day.

(9) Appellee was forty-eight years of age and possessed a fourth grade education.

(10) Mr. Neumann, appellant’s superintendent, after considering appellee’s work history and Dr. Williams’ report on the incapacity of the worker’s right shoulder, discharged him from employment. A letter from Neumann to appellee, which was admitted in evidence, stated that appellee was being released from employment because he could not perform his usual job with his disability and did not qualify for any other jobs within the division.

As a general rule, a fact finder has implied findings power and can make a reasonable inference from direct or circumstantial probative evidence. In Harrison v. Harrison, 597 S.W.2d 477, 485 (Tex.Civ.App.—Tyler 1980, writ ref’d n.r.e.), the court stated, “The jury is not only the judge of the facts and circumstances proven, but may also draw reasonable inferences and deductions from the evidence presented to it.”

A claimant need not show economical loss because of the injury; the fact that he continues to work and earn money is but one factor to be considered. American General Insurance Co. v. Bailey, 287 S.W.2d 290, 292 (Tex.Civ.App.—Galveston 1956, writ ref’d n.r.e.). Total incapacity occurs when a workman is disabled by injury to such an extent that he cannot perform the usual tasks of a workman; the term does not imply absolute physical inability to perform any kind of labor. Texas Employers’ Insurance Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944); Texas General Indemnity Co. v. Cox, 544 S.W.2d 766, 768 (Tex.Civ.App.—Dallas 1976, no writ); Travelers Insurance Co. v. Smith, 435 S.W.2d 248, 249 (Tex.Civ.App.—Texarkana 1968, writ dism’d). The definition of total incapacity does not require that an injured person be reduced to a condition of complete and abject helplessness causing an absolute disability to perform any kind of labor. Texas General Indemnity Co. v. Cox, 544 S.W.2d at 769. Accordingly, we find legally sufficient evidence to support the challenged jury findings and verdict.

The question on the factual sufficiency of the evidence mandates that we consider and weigh all the evidence in the case and set aside the verdict and remand for a new trial if we conclude that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); see also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.L.REV. 361 (1960). The significant evidence to the contrary was Dr. Williams’ testimony that the worker’s right upper extremity was only disabled by twenty percent (20%); however, appellant concedes that Mr. Neumann considered the twenty-percent (20%) disability report as one of the factors for discharging appellee. The discharge clearly shows that appellee was no longer able to stand poles, shovel, and dig holes. The jury could have been concerned about the sudden interest in appellee’s work history after twenty-six years of service. Having reviewed the entire record, we find that the jury findings and verdict are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

In Texas, the rule by which a party’s recovery in a lawsuit is barred by his own testimonial declarations is one of public policy; it would be as absurd as it manifestly would be unjust to allow a party to recover after he has clearly and unequivocally sworn himself out of court. United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224, 229 (Tex.Civ.App.—San Antonio 1951, writ ref’d). The five rules set forth by then Associate Justice Norvell in the Carr case must apply before a party’s testimony is conclusive against him. It is incumbent upon appellant to satisfy these five requirements:

(1) That the declaration relied upon was made during the course of a judicial proceeding;
(2) That the statement is contrary to an essential fact embraced in the theory of recovery or defense asserted by the person giving this testimony;
(3) That the statement is deliberate, clear and unequivocal. The hypothesis of mere mistake or slip of the tongue must be eliminated. If the statement merely contradicts some other portion of the party’s testimony, conclusive effect cannot be given thereto, but a fact issue is presented for the determination of the jury;
(4) That the giving of the conclusive effect to the declaration will be consistent with the public policy upon which the rule is based; and
(5) That the statement is not also destructive of the opposing party’s theory of recovery. In other words, the declaration must be one relating to a fact upon which a judgment in favor of the opposing party may be based.

Appellee made the declarations during the course of the proceedings in the instant case, satisfying the first requirement. His statements, however, were not deliberate, clear and unequivocal. First, the statements were of a matter held as an opinion or belief; second, such belief was mistaken; and finally, the statements were contradicted by other testimony which established fact questions concerning appellee’s work restrictions. To give conclusive effect to these statements would be inconsistent with public policy because appellee was not unequivocally swearing himself out of court. Additionally, although the declaration relates to a fact upon which a judgment in favor of appellant may be based, it does not establish the admitted element as a matter of law. Testimony of parties to a suit must be regarded as evidence, not as facts admitted. Carr, 242 S.W.2d at 228. In the instant case, the weight to be given appellee’s statements was resolved by the jury in favor of appellee. Points of error one through five are overruled.

Under points of error six through eleven, appellant contends that the judgment was erroneously based on the jury answers to special issues nine, ten, and eleven, which concern the question of good cause for late filing of the claim for worker’s compensation benefits. Appellant specifically complains that there is no evidence or insufficient evidence to support the jury findings on the challenged issues:

Special Issue No. 9

Do you find from a preponderance of the evidence that within six months from the date of such injury Plaintiff had a bona fide belief that his injury was trivial?
Answer “Yes” or “No.”
Answer: Yes

Special Issue No. 10

Do you find from a preponderance of the evidence that such belief caused plaintiff to delay in filing a claim for compensation with the Industrial Accident Board until such claim was filed on June 1, 1979?
Answer “Yes” or “No.”
Answer: Yes

Special Issue No. 11

Do you find from a preponderance of the evidence that such belief was good cause for his delay in filing the claim for such period of time?
A person has “good cause” for delay in filing a claim when he has prosecuted his claim with such diligence as an ordinarily prudent person would have used under the same or similar circumstances.
Answer “Yes” or “No.”
Answer: Yes

Appellee filed his complaint for worker’s benefits with the Industrial Accident Board on June 1, 1979, which was sixteen months after the date of the injury. The version of TEX.REV.CIV.STAT.ANN. art. 8307, § 4a in effect at the time of trial required that a claim for compensation be filed with the Industrial Accident Board within six months after the occurrence of the injury. For good cause, however, the Board may in meritorious cases waive strict compliance with the limitations for notice and filing.

“Good cause” for not filing a claim for compensation is determined on the basis of whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 372 (1948). The question of whether the claimant has exercised that degree of diligence required under the ordinarily prudent person test is usually a question of fact to be determined by the jury or trier of fact. It may be determined against the claimant as a matter of law only when the evidence construed most favorably for the claimant admits no other reasonable conclusion. Lee v. Houston Fire & Casualty Insurance Co., 530 S.W.2d 294, 296 (Tex. 1975). Generally, a worker can establish good cause for failure to timely file his claim for worker’s compensation if he was acting under the belief that his injuries were trivial, provided that he had no affirmative medical opinion to the contrary. Liberty Mutual Insurance Co. v. Stanley, 534 S.W.2d 191, 193 (Tex.Civ.App.—Texarkana 1976, writ ref’d n.r.e.). Texas courts have found good cause to exist in those cases where a physician advises the worker that his injuries are not serious, provided that the worker in the exercise of ordinary care believes and relies upon that advice. Travelers Insurance Co. v. Rowan, 499 S.W.2d 338, 341 (Tex.Civ.App.—Tyler 1973, writ ref'd n.r.e.), citing Harkey v. Texas Employers’ Insurance Association, 146 Tex. 504, 208 S.W.2d 919 (1948).

It is in this context that we address appellant’s assertion of no evidence to support the jury’s findings related to a showing of good cause. The record evidence most favorable to the verdict is as follows:

(1) Appellee sustained an injury in the course and scope of his employment on January 25,1978. He was operating a jack hammer when the stem broke, causing ap-pellee to fall and strike his right shoulder against the hammer’s handle. He was given two Bufferins and returned to his laborer’s duties, without being taken to a hospital or to see a medical doctor.

(2) On the Monday following the date of the accident, appellee saw Dr. Luedemann, a physician to whom he was referred by appellant; Luedemann diagnosed his condition as a pulled muscle and advised him to return to work. This diagnosis was related to the injury and the pain appellee was complaining of.

(3) Appellee testified that he continued to work, but had pain in his right shoulder while working, lost sleep, and sometimes could not get out of bed because of the pain in his shoulder.

(4) In December 1978, appellee, still complaining of pain in his right shoulder, went to see Dr. Mimari, who instead of treating the shoulder, performed gall bladder surgery, and later, hernia surgery on appellee. This doctor also advised appellee to return to work.

(5) In March 1980, Dr. Williams performed surgery on appellee’s right shoulder, repairing a tear in the rotator cuff.

Appellant argues that there was no evidence or insufficient evidence to show that appellee had a bona fide belief that his injury was trivial and required direct evidence in this regard. The jury, as the fact finder, has implied findings power and can make a reasonable inference from the direct or circumstantial evidence. Harrison v. Harrison, 597 S.W.2d at 485; Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273, 276 (1958). This general injury case presented to the jury a worker with a fourth grade education, who, after twenty-six years of service for the same employer, was still working as a heavy duty laborer on the date of the accident. Obviously, appellee relied on Dr. Luedemann’s diagnosis that the trouble with his right shoulder was a pulled muscle. Thus, he did not believe his injury to be serious. He again relied on the treatment and surgery by Dr. Mimari for a condition not related to the injury, and was told to return to work. Lastly, his complaint that he suffered pain and worked with pain since the date of the accident was confirmed by Dr. Williams, who found the disabling injury and performed the surgery on the worker’s right shoulder. Therefore, we find that the record reflects some evidence of probative force to support the jury’s finding and verdict.

In considering the factual sufficiency of the evidence questions on these special issues, we have again, as required, reviewed the whole record. The only significant evidence to the contrary is appellee’s work history after the injury with continuous pain. Appellant argues that failure to timely file the claim for compensation was due to appellee’s lack of diligence since he continued to experience pain to his right shoulder after the gall bladder surgery. It is undisputed that appellee was told by Dr. Leudemann, several days after the accident, that his injury was a pulled muscle and that he should return to work. This gave the worker reason to believe his injury was not serious. Approximately seven months later, appellee consulted Dr. Mi-mari about the pain in his right shoulder but was side-tracked with gall bladder and hernia surgery; in July 1979, Dr. Mimari released him to return to his regular work. There is sufficient evidence in this record from which the jury could have impliedly found that appellee relied on the advice of his doctors and had a bona fide belief that his injury was not serious. Thus, having reviewed the entire record, we do not find that the evidence is so against the great weight and preponderance as to be clearly wrong and unjust. Points of error six through eleven are overruled.

The judgment of the trial court is affirmed.

      . This section was amended in 1983 to expand the time for filing to one year. Act of April 19, 1947, ch. 113, § 10, 1947 Tex.Gen. & Spec.Laws 176, 180, amended by Act of June 19, 1983, ch. 498, § 1, 1983 Tex.Sess.Laws Serv. 2921 (Vernon).


author: STOREY, Justice.

text:
    CROW-WILLIAMS, I, et al., Appellants, v. FEDERAL PACIFIC ELECTRIC COMPANY, Appellee.
    No. 05-83-01191-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 4, 1984.
    Marc H. Fanning, Dallas, for appellants.
    James H. Moody, III, P. Michael Jung, Strasburger & Price, Dallas, for appellee.
    Before STOREY, VANCE and ALLEN, JJ.
   STOREY, Justice.

The issue in this appeal is whether an insurance contract provision waiving subro-gation rights against a general contractor, subcontractor, and sub-subcontractor also waived subrogation rights against a mate-rialman. The trial court granted summary judgment for the materialman, Federal Pacific Electric. Crow-Williams I submits that the trial court erred in not finding that (1) as a matter of law, a materialman is not a subcontractor; (2) whether Federal Pacific is a subcontractor is a question of fact; and (3) the words “subcontractors and sub-subcontractors” are ambiguous, thus creating a fact question. Because we hold that, as used in the contract, the word “subcontractor” as a matter of law includes materi-almen, we affirm the judgment of the trial court.

Harbor Insurance Company insured Crow-Williams I under a builder’s risk policy. The policy provided, in relevant part, a waiver of Harbor’s subrogation rights against “Henry C. Beck Co., its subcontractors and sub-subcontractors.” During construction of the building there was a fire caused, allegedly, by a defective electrical bus duct manufactured and supplied by Federal Pacific. Federal Pacific supplied the bus duct system to Fisk Electric Co., a subcontractor of Beck Co. Harbor, in the name of Crow-Williams I, brought a products liability suit against Federal Pacific to recover the amount paid under the insurance policy.

Crow'-Williams I contends that the term “subcontractor” has many meanings and, thus, is ambiguous. Whether a contract term is ambiguous is a question of law. R & P Enterprises v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517 (Tex.1980). While “subcontractor” has been defined in other states for purposes of mechanic’s liens, contractor bonds, and other statutory schemes for securing compensation, see Annot., 141 A.L.R. 321 (1942), these definitions are technical, divergent, and developed for specific purposes. We do not find these definitions persuasive in the context of contract interpretation, and we hold that the word “subcontractor,” as used in this contract, is not ambiguous.

Terms used in an insurance contract are to be given their plain and ordinary meaning unless the context reveals strong reason for attaching another meaning. Ramsay v. Maryland American General Ins. Co., 533 S.W.2d 344 (Tex.1976). We find no indication in the contract that a technical or narrow meaning of “subcontractor” was contemplated. Indeed, inclusion of the word “sub-subcontractor” in the waiver clause indicates that a considerable depth of parties was contemplated and that the waiver was not meant to extend to only those who contracted directly with the prime contractor.

Thus, the issue before the court under the circumstances presented here is whether a materialman falls within the plain and ordinary meaning of “subcontractor.” Crow-Williams I contends that a material-man is not a subcontractor as a matter of law and submits the case of Huddleston v. Nislar, 72 S.W.2d 959 (Tex.Civ.App.—Amarillo 1934, writ ref’d n.r.e.). That case relied on several foreign authorities and Corpus Juris to hold that the materialman who contracted to deliver crushed rock to the construction company who had contracted with the State to improve certain roads was not a subcontractor. Huddleston, 72 S.W.2d at 962.

We disagree with the authorities cited by that court and their logic. The fault lies in assuming the two words, “subcontractor” and “materialman,” to be mutually exclusive. In the construction industry, performance requires the furnishing of both labor and materials. Yet Huddleston stands for the proposition that neither laborers nor materialmen can be contractors or subcontractors. Huddleston, 72 S.W.2d at 962. We cannot agree with this proposition. The ultimate effect of such proposition would be to require that a laborer must furnish materials and a materialman must furnish labor before either could be considered a subcontractor. This defies reason and ignores present-day construction practice. For example, a framer generally furnishes only labor, as do the sheet-roeker, the bricklayer, and other skilled trades. Yet these functions are routinely bid to the contractor and subcontracted by him.

In the same manner, materials are bid to the contractor and form the basis for his bid, that is, his offer, to furnish the necessary labor and materials to complete construction. The materialman, no less than the laborer, becomes bound to the contractor to furnish certain materials to specification at a price certain. We perceive no reason in logic to make a distinction between the labor contract and the material contract. Thus, we conclude that, here, Federal Pacific Electric was a subcontractor.

Furthermore, Huddleston was interpreting the Texas Mechanic’s Lien Law, Liens for Laborers and Materialmen on Property of Owners and Lessees of Oil and Mineral Lands, ch. 17, 1917 TEX.GEN.LAWS 28, repealed by Acts 1983, ch. 576, § 6 1983 TEX.GEN.LAWS 3729, 3730, which at that time did not define subcontractor. Since then the legislature has superseded the Huddleston holding with its own definition of subcontractor: “A person who has furnished labor or materials to fulfill an obligation to an original contractor or to a subcontractor to perform all or part of the work required by an original contract.” TEX.PROP.CODE ANN. § 53.001(10) (Vernon 1983) (emphasis added). The legislature’s definition is only a more explicit phrasing of the word’s ordinary meaning. “A materialman or supplier, according to the general usage of the terms, can be and often is a ‘subcontractor.’ ...” 10 J. Ap-pleman & J. Appleman Insurance Law & Practice § 5867 at 193 (1981). A “subcontractor” is known as “an individual or business firm contracting to perform part or all of another’s contract,” Webster’s New Collegiate Dictionary 1158 (1976), or “one who takes a portion of a contract from a principle contractor or another subcontractor.” Black’s Law Dictionary 1277 (rev. 5th ed. 19791.

We hold that the word “subcontractor” is not ambiguous; it has one ordinary meaning. In the ordinary sense of the word, “subcontractor” includes an entity in the position of Federal Pacific, a materialman. Both parties agree that Federal Pacific contracted to supply an electrical bus duct system to Fisk for the purpose of fulfilling part of Fisk’s electrical responsibilities under a particular building contract with Beck. Because these facts are undisputed, we find no issue for the jury to decide.

Because we hold that a materialman falls within the insurance policy’s waiver clause, the contract’s recitation of consideration is sufficient to support the relinquishment of subrogation rights against Federal Pacific. Crow-William’s contention that a finding that Federal Pacific is included in the waiver of subrogation clause would violate the rule against indemnifying one against one’s own negligence and would be an application of the unity of release rule is without merit.

Affirmed.


author: WHITHAM, Justice.

text:
    Debbie Lee ADAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-01031-CR.
    Court of Appeals of Texas, Dallas.
    Dec. 4, 1984.

      Melvyn Carson Bruder, Dallas, for appellant.
    Henry Wade, Dist. Atty., Donald G. Davis, Asst. Dist. Atty., Dallas, for appellee.
    Before AKIN, SPARLING and WHIT-HAM, JJ.
   WHITHAM, Justice.

Appellant, Debbie Lee Adams, appeals a conviction for possession of cocaine. The physical evidence — cocaine—used to convict appellant came from a search of the house in which she lived and from a search of the automobile she was driving at the time of her arrest and in which she had attempted to evade arrest. See Adams v. State, 669 S.W.2d 391 (Tex.App.—Dallas 1984, no pet.) The search of the house was under warrant issued by a magistrate. The issue is whether the exclusionary rule bars admission of the evidence obtained in the search of the house. We conclude that under United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) the exclusionary rule does not bar admission of the evidence. Accordingly, we affirm.

In her first ground of error, appellant contends that the trial court erred by denying her motion to suppress evidence with respect to the search of the house. In her second ground of error, appellant contends that the trial court erred by not suppressing the fruits of the search of the house under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). These two grounds of error are interrelated and we discuss them together. We do not read appellant’s brief to assert an unreasonable search under TEX.CONST. art. I, § 9, nor to rely upon the Texas statutory exclusionary rule, TEX.CODE CRIM.PROC.ANN. art. 38.23 (Vernon 1979). One may search appellant’s brief in vain for any reference to TEX.CONST. art. I, § 9 or article 38.23.. Rather, appellant asserts a deprivation of fourth amendment rights and seeks to invoke the fourth amendment exclusionary rule. This exclusionary rule is “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the person aggrieved.” Leon, 104 S.Ct. at 3412. Therefore, we do not reach the question whether the Texas statutory exclusionary rule bars admission of the evidence obtained in the search of the house. Accordingly, our disposition of the present case is based solely on the fourth amendment and the “judicially created remedy designed to safeguard Fourth Amendment rights.”

The record shows that on March 4, 1982, Larry Adelstein, a University Park police officer, arrested Kevin Long for possession of narcotics. Long told officer Adelstein that he had purchased the drugs from an individual named Jackie Norwood Kennedy earlier in the day and that Kennedy had more drugs at his home which Kennedy would be willing to sell. Long specified that Kennedy had over four ounces of cocaine in his residence at 6484 Lontos Drive. Officer Adelstein relayed this information to John Gaulding, investigator with the intelligence division of the Dallas Police Department. Officer Adelstein also told Gaulding that Long had disclosed other information which Adelstein had been able to substantiate. Long agreed to set up a meeting with Kennedy for a drug transaction and subsequently made arrangements with Kennedy to meet at the Abby Inn where Kennedy would sell Long two ounces of cocaine.

Surveillance was established outside the residence of Kennedy and appellant at 6484 Lontos Drive by Gaulding and his partner. During the surveillance operation, Gauld-ing was in radio contact with Adelstein through the police operator. Adelstein relayed Gaulding’s questions to Long and Long’s answers to Gaulding through the police operator. In one of these exchanges, Gaulding was informed that Kennedy could not leave the house to meet at the pre-arranged location to make the drug sale until everyone left Kennedy’s house. Prior to the time Gaulding and his partner observed Kennedy and appellant leave the residence in an Oldsmobile driven by appellant, the investigators observed numerous persons coming and going from the residence.

After Kennedy and appellant left their residence, the investigators followed them to a convenience store located near the Abby Inn. Kennedy was observed getting out of the Oldsmobile and walking to the telephones. It was Gaulding’s impression that Kennedy was looking for surveillance or watching to see if he and appellant had been followed. Kennedy returned to the automobile, and appellant drove to the Abby Inn. Although the uniformed officers watching the Abby Inn had been instructed not to stop the Oldsmobile until Gaulding gave the word, the officers started moving in too soon. Apparently, Kennedy and appellant saw the officers and left the scene immediately. When the officers turned on their red lights, appellant increased her speed, rammed a stop sign and ran a stop sign or light. As the officers gave chase, Kennedy was observed dumping a white powder out of the window. Kennedy and appellant were eventually stopped and arrested. A white powder, later determined to be cocaine, was observed on the arm rest on the door on the passenger side of the Oldsmobile. There was cocaine residue and “chunks” of cocaine in the window area, on the floorboard, beside the door and on the front seat of the Oldsmobile.

Once Kennedy and appellant were apprehended, Gaulding obtained a search warrant to search their residence. Pursuant to this search warrant the police seized cocaine and other drugs. The search warrant was issued upon Gaulding’s affidavit that:

The undersigned Affiant, being a Peace Officer under the laws of Texas and being duly sworn, on oath makes the following statements and accusations:

1.There is in Dallas County, Texas, a suspected place and premises described and located as follows: A single family Duplex, being described as a one story structure, pink brick, the left or east unit, located at 6484 Lontos Drive, (including all vehicles and structures at this location), in the City of Dallas, Dallas County, Texas.
2. There is at said suspected place and premises personal property concealed and kept in violation of the laws of Texas and described as follows: A Controlled Substance, TO WIT: COCAINE
3. Said suspected place and premises are in charge of and controlled by each of the following persons: Jackie Nor-wood Kennedy, a white male, date of birth 01 25 48, 6 feet tall and 175 pounds and Debbie Evans Adams, a white female, with the date of birth of 02 03 59, and person or persons whose names, ages, and descriptions are unknown to the affiant.
4. It is the belief of Affiant, and he hereby charges and accuses, that: the above described Kennedy and Adams and person or persons whose names, ages, and descriptions are unknown to the affi-ant on the forth [sic] day of March, 1982 in the City of Dallas, Dallas County, Texas does [sic] possess a controlled substance, TO WIT: COCAINE.
5. Affiant has probable cause for said belief by reason of the following facts: Affiant, Investigator John A. Gaulding is employed by the Dallas Police Department and is assigned to the Vice Control Division, Drug Abuse Section.
Affiant was contacted on March 4, 1982 at 4:15 PM by Officer Larry Adelstein of the University Park Police Department. Officer Adelstein stated that they had arrested a Kevin D. Long for Delivery of Cocaine. That this arrested person stated that he had bought this Cocaine from the above described Jackie Kennedy, this same day at the above described address, located at 6484 Lontos Drive, in the City of Dallas, Dallas County, Texas. That while at this location he did see the above described Jackie Kennedy with over four ounces of COCAINE.
Affiant informed officer Adelstein that he wanted his arrested person to contact Kennedy and set up a two ounce Delivery of COCAINE at 10:20 PM at the Abbey Inn, located at 702 Medallion Center. Affiant with the help of uniformed officers tried to the [sic] stop these two above described persons when they drove to the Inn. The above described female was driving and at the time the uniformed officer turned on their red lights, she started to evade arrest and run from the officers. The above described white male then threw the two ounces of Cocaine out the window scattering the cocaine all over the street. After about a [sic] five minutes they stopped and were arrested and removed from the vehicle. Cocaine residue was removed from the seat and floor board of this vehicle. Affiant contacted officer Adelstein who stated that the two remaining ounces of cocaine is still in the above described duplex, located at 6484 Lontos Drive, in the City of Dallas, Dallas County, Texas. Wherefore, affiant asks for issuance of a warrant that will authorize him to search said suspected place and premises for said personal property and seize the same and to arrest each said described and accused person.

Appellant argues that the affidavit is insufficient to establish probable cause for a search under the “totality of the circumstances” test of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). For the purposes of this opinion we assume, but do not decide, that the affidavit is insufficient to establish probable cause for a search under the “totality of the circumstances” test of Gates, and that, therefore, the search warrant was invalid. Thus, we reach the question whether the exclusionary rule bars admission of the evidence obtained in the search. We must decide that question in light of the Supreme Court’s conclusion in Leon “that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” 104 S.Ct. at 3419. Appellant does not challenge that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant. Cf. Massachusetts v. Sheppard, — U.S. —, 104 S.Ct. 3424, 3429, n. 6, 82 L.Ed.2d 737 (1984).

Leon teaches that “a search warrant provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime,” 104 S.Ct. at 3416, that a magistrate’s determination is entitled to “great deference,” 104 S.Ct. at 3417, and that “[pjenalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” 104 S.Ct. at 3420. Deference to the magistrate, however, is not boundless. Indeed, that deference imposes obligations and responsibilities upon the magistrate. The magistrate must be alert to knowing or reckless falsity of affidavits. The magistrate must be neutral and detached and not serve merely as a rubber stamp for the police. The magistrate must act on an affidavit that provides the magistrate with a substantial basis for determining the existence of probable cause. The magistrate cannot merely ratify the bare conclusions of others. The magistrate’s probable cause determination must reflect a proper analysis of the “totality of the circumstances” approach of Gates. The magistrate must issue the warrant in proper form. See Leon, 104 S.Ct. at 3417-18.

Thus, we now have the objective good faith rule announced in Leon that:

In the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.

104 S.Ct. at 3423. We turn then to the application of that rule in the present case. In applying the rule, Leon gives us four situations in which suppression of evidence obtained by a police officer in reliance on a search warrant subsequently held to be invalid remains an appropriate remedy. Under Leon, suppression of the evidence in the present case would be appropriate only under one or more of these four conditions: (1) the affidavit misled the issuing magistrate by stating some falsehood that the affiant either knew was false or asserted with a reckless disregard for the truth, Franks v. Delaware, (2) there is a well-founded allegation that the magistrate wholly abandoned his detached and neutral judicial role, (3) the affidavit is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, or (4) the warrant is facially deficient, i.e., it fails to particularize the place to be searched or the things to be seized. Leon, 104 S.Ct. at 3421-3422.

As to Leon’s first condition, appellant argues that the condition was met because the affidavit contained a false statement knowingly or recklessly made. Appellant asserts that the false statement in the affidavit is the statement from Officer Adelstein that he knew from personal knowledge that there were two ounces of cocaine remaining at 6848 Lontos Drive. The affidavit, however, did not explicitly say that Officer Adelstein made this statement as a matter of personal knowledge. It appears that he made the statement as an inference from other facts known to him. The fact that the statement was not based on personal knowledge did not make it false. Since appellant has not shown that the affidavit contained a false statement, she has not shown that the search was invalid under Franks v. Delaware. Consequently, we conclude that the affidavit did not mislead the issuing magistrate by stating some falsehood that the affiant either knew was false or asserted with a reckless disregard for the truth. As to Leon’s second condition, there is no allegation that the issuing magistrate abandoned his proper judicial role. As to Leon’s third condition, the police officer swore out the affidavit on the basis of information from a named informant who made what was at least arguably a declaration against penal interest and who gave the exact address at which he had bought cocaine, a description of the premises, the name of the person who sold cocaine to him, and an estimate of the amount of cocaine he had seen at the address. Appellant argues that the informant’s statements actually did not amount to a declaration against penal interest and that the informant had not given sufficiently detailed information about the contraband or its location. Regardless of whether appellant’s argument is correct, we conclude that the record shows indications of probable cause strong enough to establish that the officer who swore out the affidavit “harbored an objectively reasonable belief in the existence of probable cause.” Leon, 104 S.Ct. at 3423. We conclude further, therefore, that the affidavit is not so lacking in the indicia of probable cause as to render official belief in the existence of probable cause entirely unreasonable. As to Leon’s fourth condition, the affidavit in the present case clearly is not facially deficient. It does particularize the place to be searched and the things to be seized.

We conclude, therefore, that none of Leon’s conditions for suppression of the evidence are met in the present case. We conclude further that in the present case the police officers acted with objective good faith and conducted the search within the scope of the warrant. It follows, and we so hold, that in the present case the exclusionary rule should not be applied so as to bar the use in the State’s case-in-chief of evidence obtained by police officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate and subsequently assumed to be invalid. We hold further, therefore, that under the facts the exclusionary rule does not bar admission of the evidence in the present case. Thus, we conclude that the trial court did not err by denying the appellant’s motion to suppress evidence with respect to the search of the house. Accordingly, appellant’s first ground of error is overruled. Furthermore, we conclude that the trial court did not err in refusing to suppress the fruits of the search of the house under Franks v. Delaware. Consequently, appellant’s second ground of error is overruled.

In her third ground of error, appellant contends that the trial court erred by failing to suppress the fruits of the search of the Oldsmobile. Citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); and Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), appellant argues in her brief that since her arrest was unlawful, the seizure of the cocaine was likewise illegal and that, therefore, the cocaine should have been suppressed. In Adams v. State, we affirmed appellant’s conviction for evading arrest. At oral argument, appellant conceded that appellant’s arrest for the offense of evading arrest which was at issue in that case is the same arrest of appellant that is before us in the present case and at issue under appellant’s third ground of error. At oral argument, appellant further conceded that our judgment affirming her conviction for evading arrest in her prior appeal is now final and that, therefore, appellant’s third ground of error is moot. Accordingly, appellant’s third ground of error is overruled.

Affirmed.

      . Deference to the magistrate appears unaffected by the magistrate’s failure as a scrivener. "Suppressing evidence because the judge failed to make all the necessary clerical corrections [in a warrant form] despite his assurances that such changes would be made will not serve the deterrent function that the exclusionary rule was designed to achieve.” Massachusetts v. Sheppard, 104 S.Ct. at 3429-30.


author: WARD, Justice.

text:
    B.F. SAUL REAL ESTATE INVESTMENT TRUST, Appellant, v. Hugh J. McGOVERN, Appellee.
    No. 08-83-00096-CV.
    Court of Appeals of Texas, El Paso.
    Dec. 5, 1984.
    Rehearing Denied Feb. 13, 1985.

      Michael D. McQueen, Timothy Patton, Kemp, Smith, Duncan & Hammond, El Paso, Leslie A. Nicholson, Jr., Janice Lehrer-Stein, Shaw, Pittman, Potts & Trow-bridge, Washington, D.C., for appellant.
    S.Anthony Safi, W. Dean Hester, Gram-bling & Mounce, El Paso, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

WARD, Justice.

The Plaintiff, Hugh McGovern, by paying a fee of $240,000.00, obtained from the Defendant B.F. Saul Real Estate Investment Trust a standby loan commitment for $12,000,000.00 on the proposed construction of a hotel. When the project was abandoned, the Plaintiff sued to recover the $240,000.00 retained by the Trust on the theory that it was an unenforceable penalty rather than valid consideration for the loan commitment. Trial was to the court without a jury which entered judgment for the Plaintiff. Findings of fact and conclusions of law were requested and filed. We reverse and render.

The case stems from the Plaintiff's attempt to develop a first class hotel in downtown El Paso. A lender not involved in this controversy, First of Denver Real Estate Investment Trust, agreed to provide the Plaintiff with a $12,000,000.00 construction loan if the Plaintiff could find a satisfactory permanent loan commitment. The Plaintiff made an unsuccessful attempt to find such a lender. Instead, on March 29, 1974, he entered into the standby commitment with the Defendant. From a practical point, no loan would have ever been made under this $12,000,000.00 commitment. Rather, the standby commitment would have allowed construction to begin, and provided the Plaintiff more time to find an acceptable permanent loan commitment with which to pay the construction loan. It was a hedge. The Plaintiff would have wanted the traditional permanent loan since the standby loan, if made, would have required interest at the highest limit and payment within a short period of time. A traditional permanent loan would allow repayment over twenty-five to thirty years and at a more reasonable rate of interest. Though the standby commitment was made, First of Denver declined to make the construction loan for legitimate reasons which had been provided for in its own agreement. No other lender could then be found to make the construction loan.

The standby loan commitment in question as made on March 29, 1974, stated that Mr. McGovern could obtain in April, 1978, a standby loan of $12,000,000.00 provided the following conditions had been met:

1. The borrower had paid $240,000.00 to the Trust for the first two years of the commitment period.
2. Commencement of construction of the proposed improvements had begun within 180 days of the date of the commitment.
3. The borrower had paid an additional $120,000.00 for the third year of the commitment period not less than thirty days prior to the expiration of the first two years.
4. The borrower had paid an additional $120,000.00 for the fourth year of the commitment period not less than thirty days prior to expiration of the third year.
5. The borrower had given at least one hundred twenty (120) days’ advance written notice of its desire to fund the standby loan during the month of April, 1978.
6. The borrower had paid as additional interest the sum of $360,000.00 not later than the first advance of funds under the standby loan.

The critical provision in the contract regarding the commencement of construction was paragraph 24(D) and was as follows:

(D) Construction of the proposed improvements shall be within 180 days after the date of the commitment or the commitment fee will be forfeited as liquidated damages to the lender and the commitment shall become void.

Mr. McGovern was unable to commence construction within the 180-day period prescribed by paragraph 24(D). By July, 1975, Mr. McGovern had abandoned his efforts to find any construction financing and at that time claimed that his inability to arrange for such financing was because the Saul Trust commitment was worthless and he demanded that the commitment be rescinded and his fee returned. The Trust refused to return the $240,000.00 commitment fee which had been paid and this litigation resulted.

The Plaintiff brought suit alleging fraud, mutual mistake, breach of warranty and unenforceable penalty. At the first trial, the jury returned a verdict rejecting each of the Plaintiffs contentions. Instead of granting judgment on the verdict, the trial judge granted a new trial. Mr. McGovern then, by stipulation, waived all of his claims except for the issue of unenforceable penalty. The parties waived a jury and proceeded to trial before the court on the one theory and with an additional stipulation that all the evidence of the first trial could be considered as part of the record of the second trial. Judgment was then entered for the Plaintiff, the court finding as a matter of law that the $240,000.00 forfeiture was an unenforceable penalty.

For all practical purposes, the facts are not in dispute since the Defendant makes only one attack on the findings of fact filed by the trial court. As previously noted, Paragraph 24(D) of the contract provided that unless construction began within 180 days of the commitment, the commitment would be void and the $240,000.00 would be forfeited as liquidated damages. The trial court found that construction did not begin within the 180 days and the Defendant’s fifth point is a factual insufficiency attack on this finding. In the second trial, Mr. McGovern offered no evidence in support of his claim but rested immediately after his attorney’s opening statement. In the first trial, Mr. McGovern took the position and offered evidence to the effect that construction did in fact begin. What the Defendant overlooks is that in the first trial, the Defendant undertook to prove and did provide evidence that construction did not commence within 180 days of the commitment. As an example, Mr. Cronin, an expert witness for the Defendant, testified at the first trial that from his investigation, construction had not started on time. Having reviewed all of the evidence on this matter together with the inferences arising therefrom, the fifth point is overruled.

Points of Error Nos. One through Four advance essentially the same argument. The Defendant contends that the $240,-000.00 was valid consideration for holding open the loan commitment, not a penalty as the trial court found. That argument requires examination of the consideration provisions of the contract. When the parties agreed to the loan commitment on March 29, 1974, the Plaintiff paid the Defendant $240,000.00 to hold the commitment open until April, 1976. The standby loan could only be made, however, in April, 1978. To keep the commitment alive from April, 1976, to April, 1978, an additional payment of $120,000.00 was required for each of the two twelve-month periods. Further fees and notice were required if the Plaintiff ever actually called on the Defendant to make the loan.

The Plaintiffs argument that Special Provision 24(D) of the standby commitment provided for an unenforceable penalty rather than liquidated damages is based on the premise that this ease is controlled by Stewart v. Basey, 150 Tex. 666, 245 S.W.2d 484 (1952). There, the Supreme Court held that in order to enforce a liquidated damages clause, the court must find: (1) that the harm caused by the breach is incapable or difficult of estimation and (2) that the amount of liquidated damages called for is a reasonable forecast of just compensation for the breach.

In its findings, the trial court found: (1) as of March 29, 1974, the harm, if any, that would be caused to the Saul Trust by Mr. McGovern’s failure to begin construction of the proposed improvements on or before September 25, 1974, was not incapable or difficult of accurate estimation and (2) that the forfeiture of the $240,000.00 to the Saul Trust in the event Mr. McGovern did not begin construction of the proposed improvements on or before September 25, 1977, was not, as of March 29, 1974, a reasonable forecast of just compensation for the harm, if any, that would be caused to the Saul Trust by said failure to begin construction of the proposed improvements.

Thus, the Plaintiff concludes that since the requirements necessary to establish liquidated damages for a breach of contract were missing, the trial court was correct in holding that the $240,000.00 forfeiture was an unenforceable penalty.

The trouble with the Plaintiff’s reasoning is that there was no breach of contract ever commited by Mr. McGovern. The whole subject of penalty versus liquidated damages only arises when the parties to a contract have attempted to provide for a remedial right upon breach of a contract. See: Restatement of Contracts Second, sec. 339 (1981); Murray on Contracts, sec. 234 (Second Rev.Ed.1974); 5 Corbin on Contracts, sec. 1058 (1964); C. Mueller, Functional Approach in Determining the Validity of a Liquidated-Damages Clause, 30 Texas L.Rev. 752 (1952). To warrant a recovery of liquidated damages, there must have been a breach of the contract by a defendant. 22 Am.Jur.2d Damages, sec. 252 (1965). On the other hand, if this was an option contract held by Mr. McGovern, such a contract does not come within the equitable rule against forfeiture inasmuch as failure to comply strictly with the conditions of the option deprives no party of any right and abrogates no contract. 17 Am. Jur.2d Contracts, sec. 60 (1964).

It is clear that from reading the entire loan commitment, the requirement that construction begin within 180 days is one of several conditions that the Plaintiff had to satisfy in order to exercise the option. As with any option, the Plaintiff was not obligated to perform any of the conditions made. Accordingly, the Saul Trust had no legal right to force the Plaintiff to start construction within 180 days, to build the hotel, to pay the additional amounts or to borrow the twelve million ($12,000,-000.00) from the Saul Trust. Nor could the Saul Trust have collected damages for the failure of the Plaintiff to do any of those things. Paragraph 24(D) cannot be construed as a penalty clause, but only as a condition of the commitment.

There are two types of loan commitments: (1) a bilateral agreement under which the lender is obligated to make the loan if certain conditions are satisfied and the borrower is obligated to take the loan. Such a loan commitment was before the court in the case upon which the Plaintiff relies. Tri-Cities Construction, Inc. v. American National Insurance Company, 523 S.W.2d 426 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ), appeal after remand, 551 S.W.2d 106 (Tex.Civ.App.— Houston [1st Dist.] 1977, no writ). See: Annotation, 93 A.L.R.3d 1156 (1979). And (2) a unilateral agreement by a lender to make the loan if certain conditions are satisfied where the borrower has the right to take or not take the loan. The lender cannot force the borrower to do anything. See: Lowe v. Massachusetts Mutual Life Ins. Co., 54 Cal.App.3d 718, 127 Cal.Rptr. 23, 25 (Cal.App. [1st Dist.] 1976). This is the type before us.

The $240,000.00 was a commitment fee paid for the lender’s agreement to make the loan. See: Stedman v. Georgetown Savings and Loan Association, 595 S.W.2d 486 (Tex.1979). The language used in Paragraph 24(D) was the parties’ inartful way of saying the fee was nonrefundable. See: Walker v. First Pennsylvania Bank, 518 F.Supp. 347 at 354 (E.D.Pa. 1981). Points of Error Nos. One through Four are sustained.

We do not reach Points of Error Nos. Six through Eight where the Defendant contests the exclusion of certain tendered evidence.

The judgment of the trial court is reversed and judgment is hereby rendered that the Plaintiff take nothing.