author: BRADY, Justice.

text:
    Bob BULLOCK, Comptroller of Public Accounts, State of Texas, et al., Appellants, v. MID-AMERICAN OIL & GAS, INC., Successor In Interest To Mid-American Oil Company, a Joint Venture, Appellee.
    No. 14044.
    Court of Appeals of Texas, Austin.
    Oct. 31, 1984.
    Rehearing Denied Dec. 5, 1984.

      Jim Mattox, Atty. Gen., Maureen Bucek, John M. Gilliland, Asst. Attys. Gen., Austin, for appellants.
    Jerry P. Jones, Emily A. Parker, Thompson & Knight, Dallas, for appellee.
    Before SHANNON, EARL W. SMITH and BRADY, JJ.
   BRADY, Justice.

The appellee, Mid-American, sued the State for a refund of $1,210,145 in occupation taxes which Mid-American had paid under protest. The trial court sitting without a jury decreed that the State must refund $1,206,945, and Bob Bullock, Comptroller, appeals. We will affirm the judgment of the trial court.

During 1973, William and Mary Borchers as lessors, executed two oil and gas leases with Wayne S. Davis and Gerald R. Hill as lessees, on land situated in Lavaca County. Another lease in the same field was executed by Dorothy Borchers Ploeger as lessor, with Gerald R. Hill, as lessee. These leases will be referred to as the “Hill Group.” Subsequently, the “Hill Group” negotiated a gas sales contract with Bay Pipeline, Inc., which at the time was a wholly-owned subsidiary of Mid-American, with the provision that Bay would pay sixty-five cents per MCF for the first five years. In order to take delivery of the gas, Bay constructed a pipeline. Delivery of gas per the contract was on the Borchers’ leases. The Ploeger lease provided for the sale of gas at the same price.

In October of 1974, Mid-American purchased from the Hill Group all of their interest under these leases except for 21.875% of the Ploeger contract. This sale had the effect of making Mid-American both a seller and an operator under the leases. In December of 1974, Mid-American sold its assets to a new entity called “Mid American Oil Company, a Joint Venture.” At the same time, Bay Pipeline declared and paid a dividend to its parent, Mid-American, of all its rights to the gas sales contracts it had acquired from the Hill Group. Thus, the Joint Venture acquired all of Bay’s rights as buyer and seller of the natural gas. It is stipulated by the parties that the contracts were to remain in force as originally written.

Thereafter, effective July 1, 1975, the Joint Venture contracted to sell gas to Lo-Vaca and others at $1.90 per MCF. In order to deliver the gas, Bay extended the pipeline to a delivery point within Lo-Vaea’s pipeline. The record reveals that there were forty-three separately described gas leases located in seven different counties involved in these resales. In 1976, the Joint Venture was dissolved, the present appellees succeeded to the Joint Venture’s interest under the Borchers and Ploeger leases, and Bay Pipeline reacquired its rights as buyer under the gas sales contracts. The State Comptroller audited Mid-American. The audit resulted in an assessment of taxes between December 4, 1974, and May 31, 1976, based on a price of $1.90 per MCF, instead of the previously assessed sales price of sixty-five cents per MCF. Though there were other leases involved in this case, they are not necessary to this opinion. Due to the factual similarity between these other leases and the Hill Group leases, and for the sake of simplicity, they need not be addressed.

The thrust of appellants’ nine points of error is that the trial court erred in concluding that sales made by Mid-American as a producer of natural gas to Lo-Vaca and others at $1.90 were second sales, and that the correct price on which to base the occupation tax was sixty-five cents as per the original contracts. The State argues that appellee's sale as a gas producer to itself as a “first purchaser” and a subsequent sale to others at a higher price would contravene the intent of the Legislature when it enacted the occupation taxes. Since the first sale by Mid-American did not involve any cash payment, the Comptroller says, the subsequent sales to Lo-Vaca were first sales. However, the findings of fact and conclusions of law made by the trial court correctly stated that the Joint Venture’s first sale of gas produced from the leases in question from the period of December 4, 1974, through May 31, 1976, was “made at the mouth of the well.” Additionally, this was the proper measure of the market value of the gas for occupational tax purposes.

The statute involved is Tex.Tax Gen.Ann. art. 3.02 (1969) ([repealed by 1981 Tex.Gen. Laws, ch. 389, § 39(a), at 1785] and codified as Tex.Tax.Code §§ 201.101-201.104 (1982), effective January 1, 1982), which provided:

Art. 3.02:
(1)The market value of gas produced in this State shall be the value thereof at the mouth of the well; however, in case gas is sold for cash only, the tax shall be computed on the producer’s gross cash receipts.
Art. 3.04:
(1) For the purpose of this Act “producer” shall mean any person owning, controlling, managing, or leasing any gas well and/or any person who produces in any manner any gas by taking it from the earth or waters in this State, and shall include any person owning any royalty or other interest in any gas or its value whether produced by him, or by some other person on his behalf, either by lease, contract or otherwise.
(2) “First purchaser” shall mean any person purchasing gas from the producer.
(3) “Subsequent Purchaser” shall mean any person who purchases gas for any purpose whatsoever, when said gas is purchased from any person other than the producer.

In determining the occupational tax provided for under the occupational tax statute, it is clear the taxes attach when “the minerals have been produced and severed from the land, when they have been reduced to possession and have come under the dominion and control of the producer.” Humble Oil and Refining Company v. Calvert, 478 S.W.2d 926, 931 (Tex.1972). The tax involved herein is a tax only upon the occupation of producing gas. Id., W.R. Davis, Inc., v. State, 142 Tex. 637, 180 S.W.2d 429 (1944); State v. Humphrey, 159 S.W.2d 162 (Tex.Civ.App.1941, no writ). Any tax levied is upon the market value of the gas when it is produced. Francitas Gas Co. v. Calvert, 332 S.W.2d 389 (Tex.Civ.App.1960, writ ref d n.r.e.). Taxing the price of gas subsequent to delivery would result in a tax on other activities, such as gathering, instead of purely on production. This would be a tax outside the scope of the Texas occupational gas tax statute. As the Court has said before, “The producer thereof only is taxed, not the refiner.” W.R. Davis, Inc. v. State, supra.

The difficult question in this case, however, is how to determine the market value of the gas in order to apply properly the occupational gas tax. The general rule is that market value is determined by the contract of sale between the producer and the purchaser. This rule holds true as long as the contract is an arms length transaction, free from fraud or collusion. W.R. Davis, Inc. v. State, supra; Calvert v. Union Producing Co., 402 S.W.2d 221 (Tex.Civ.App.1966, writ ref’d n.r.e.). In the Calvert case, the Court found that the State had failed to establish the presence of fraud, collusion, or lack of good faith. The Court held the contract thus entered into was the measure of the market value of the gas for tax purposes even though all the contracting parties were run as a single business enterprise under the control of the parent. The original contract of sale in the instant case was entered into by completely unrelated parties. Additionally, the State did not raise the issue of fraud, collusion, or lack of good faith in the formation of the contract. In fact, the Comptroller concedes the contracts at issue were entered into in good faith and free from fraud or collusion.

The first sale contracts remained in force and did not terminate on December 4, 1974, the effective date of the formation of the joint venture. They continued to be binding contracts for the sale and purchase of gas. The owners of the 21.875% working interest under the Ploeger lease were allowed to pay their taxes during the period in which the joint venture existed based upon the price for gas as set forth in the first sale contracts. Likewise, the Comptroller determined that after May 31, 1976, the effective date of the joint venture’s dissolution, the tax for the successor in interest to the joint venture would again be based on the price for gas as set forth in the original contract. Thus, the price for gas as reflected by the original contract establishes the market value for occupational tax purposes.

The purpose of the statute in question is to place a tax on the “market value” of gas at the well head. This is supported by phrases in the statute such as “the market value thereof as and when produced”, “the value thereof at the mouth of the well”, and producer means any person who produces gas “by taking it from the earth.” The Texas cases cited by appellant defining “market value” as “gross cash receipts” we do riot find controlling.

Gross cash receipts do not control where they clearly do not reflect the true market value of the gas at the mouth of the well. The case of Humble Oil and Refining Company v. Calvert, supra, defined “market value” as the cash price received by the producer when the gas was sold at the well head. As the producer’s “gross cash receipts” do not represent a sale at the well head the second sale should not control. The term “gross cash receipts” must yield to the term “as and when produced” and “at the mouth of the well.” Even conceding that there are apparent conflicts within the taxing statute, all doubts are to be resolved in favor of the taxpayer. United States v. Merriam, 263 U.S. 179, 44 S.Ct. 69, 68 L.Ed. 240 (1923).

Gross cash receipts realized by a “producer” from operations apart from the “production” of gas are not part of the producer’s “gross cash receipts” for purposes of gas occupation taxes. Humble Oil and Refining Company v. Calvert, 464 S.W.2d 170, 175 (Tex.Civ.App.1971), aff’d, 478 S.W.2d 926 (Tex.1972). The tax is upon a producer’s production of gas and is measured by the “gross income" from production operations considered separately from other activities. Id. Humble Oil and Refining Company v. Calvert, supra. These “other activities” obviously refer to the gathering of gas and other related aspects of gas marketing.

The occupational gas tax is not necessarily a tax on the production and cash sale of gas, as the Comptroller seems to argue. In citing the case of Francitas Gas Co. v. Calvert, supra in support of his position, appellant fails to recognize that the residue gas in that case had not been “produced and saved.” The facts showed the “producer” had extracted gas from a well and removed certain hydrocarbons, then returned the residue gas back into the well. The hydrocarbons were taxed but not the residue gas because an exception was provided by § 1(2) of the old occupational gas statute, art. 7047b, Tex.Rev.Civ. Stat. (1951 Tex.Gen.Laws, ch. 402, § V, at 700, repealed by the adoption of art. 3.02, supra), the substantially identical predecessor statute to art. 3.02. It specified that when products are extracted from gas and the residue returned to a gas producing formation the rate of the tax would be restricted to the value of the extracted products. The Court in Francitas taxed the residue gas once it was again extracted for sale, at its market value. Apparently, the Court reasoned that during the period of time the residue gas was returned to the gas producing formation it had no market value. At most, it was in storage and was not “saved.” In the instant case, the gas was produced and “saved.” It was also sold pursuant to a valid and binding contract. At the time of sale it had a definite “market value” and that was the proper value with which to measure the amount of the tax.

Appellants strongly urge that the rights of a seller and a buyer pursuant to a gas sales contract must remain in separate corporate entities for the prices set forth in the contract to control the market value the tax will be set against. It is appellants’ contention that the joint venture, being a single corporate entity, existed as both a seller and a buyer, and that a true “sale” of gas did not occur until the joint venture sold gas to customers under the Lo-Vaca contract. Further, they argue that the gross cash receipts realized at that time should be the market value for tax purposes. In support of this contention appellants cite the case of Texaco, Inc. v. Calvert, 526 S.W.2d 630 (Tex.Civ.App.1975, writ ref’d n.r.e.). We find this case not dispositive of the issues in the case at bar. The Texaco case involved a franchise tax, and payment for the privilege of transacting business within Texas. Texaco could not include the gross receipts of subsidiaries in the tax calculations because the subsidiaries are separate corporate entities. This does not compare with a tax on the business of producing gas computed on the market value of the gas.

Support for our holding that the original contract represents the market value of the gas for tax purposes can be found in the case of Humble Oil and Refining Company v. Calvert, supra. There, the Texas Supreme Court noted the similarity between Section 613 of the Internal Revenue Code of 1954, and the Texas occupational tax statute as it then existed. Gross income from depreciated oil and gas property was defined in the income tax regulations, § 1.613-3, as follows:

In the case of oil and gas wells, gross income from the property, as used in section 613(C)(1), means the amount for which the taxpayer sells the oil or gas in the immediate vicinity of the well. If the oil or gas is not sold on the premises but is manufactured or converted into a refined product prior to sale, or is transported from the premises prior to sale, the gross income from the property shall be assumed to be equated to the representative market or field price of the oil or gas before conversion or transportation.

The Court, in noting the definition of gross income was applicable only in the context of federal taxation found the concept too close to that in the occupational tax statute to not find it persuasive. It is our opinion that this comparison can be followed in the case at bar. This dispels the view taken by appellants that they had already taken into account the costs of refining and “gathering” before they levied the tax on the $1.90 price for gas found in the contract with Lo-Vaca. The sixty-five cent price found in the original contract is the representative market or field price of the gas before transportation or conversion. Though the appellee was named as a “producer” in the second sale contract, it has no effect in this case. Despite the name attributed to the parties in the contract, the market value of the gas at the well head remained unchanged.

The judgment of the trial court is affirmed.

EARL W. SMITH, J., not participating.


source: Caselaw Access Project

author: SHANNON, Justice.

license: Public Domain

text:
    RANGER INSURANCE COMPANY, Appellant, v. James Lewis ROBERTSON, et al., Appellees.
    No. 13764.
    Court of Appeals of Texas, Austin.
    Oct. 31, 1984.
    Rehearing Denied Dec. 5, 1984.

      C.C. Small, Jr., Small, Craig & Werken-thin, Austin, for appellant.
    Mike Davis, Byrd, Davis & Eisenberg, Austin, for appellees.
    Before SHANNON, POWERS and BRADY, JJ.
   SHANNON, Justice.

This appeal stems from a crash of a Piper aircraft near Graford on December 5, 1974. At the time of the crash Byron McKnight was the pilot of the plane and his wife, Amelda Ann McKnight, was a passenger. The flight in question originated in Hobbs, New Mexico and was to terminate in Dallas. Both the pilot and the passenger perished in the crash.

James Lewis Robertson, as executor of Amelda Ann McKnight’s estate, sued Byron McKnight’s estate for wrongful death in the district court of Travis County, cause number 255,130. On June 2, 1978, the district court ruled by summary judgment that the Texas doctrine of interspousal tort immunity barred the suit. The Court of Civil Appeals at Tyler affirmed the summary judgment. Robertson v. Estate of McKnight, 591 S.W.2d 639 (Tex.Civ.App.1979, writ granted).

On November 12, 1980, the Supreme Court of Texas rendered judgment reversing the judgments of the district court and the Court of Civil Appeals, holding that the law of New Mexico concerning interspousal tort immunity should be applied. The Supreme Court ordered the cause remanded to the district court “to proceed to trial on the merits in conformity with this opinion. Robertson v. Estate of McKnight, 609 S.W.2d 534, 537 (Tex.1980).

The estate of Byron McKnight then filed its motion for rehearing. The Supreme Court overruled the estate’s motion for rehearing on January If 1981, and issued its mandate in the cause on January 16, 1981.

After the Supreme Court had delivered its opinion in cause no. 255,130, but about one month before the Supreme Court acted on the motion for rehearing, counsel for both estates, without knowledge of counsel for the liability insurance company, announced to the district court that they had settled all claims asserted in cause no. 255,-130. Accordingly, on December 11, 1980, the district court signed a consent judgment in cause no. 255,130 approving the settlement agreement of the parties and ordering that the estate of Amelda McKnight recover $275,000.00 from the estate of Byron McKnight.

Thereafter, Robertson, executor and personal representative of the estate of Amel-da Ann McKnight, and Brady, administrator and personal representative of the estate of Byron McKnight,'sued the liability carrier of the estate of Byron McKnight, Ranger Insurance Company, in the district court of Travis County to enforce the consent judgment rendered on December 11, 1980. In a separate cause, Ranger filed a suit seeking a declaratory judgment that it was not obligated to pay the consent judgment. The district court consolidated the two suits.

Ranger insisted in the consolidated suit, among other things, that the consent judgment rendered on December 11, 1980, was void because that judgment was rendered at a time when the motion for rehearing was still pending in the Supreme Court. Nevertheless, after trial to the court, the district court rendered judgment that ap-pellees recover $275,000.00 from the insur-anee company. Ranger then perfected its appeal from that judgment to this Court.

The insurance company has carried forward on appeal its argument that the consent judgment was void because it was rendered at a time when the cause was still pending on motion for rehearing in the Supreme Court. If indeed the consent judgment is void, it follows that the judgment here under consideration is also void.

A consent judgment has the same degree of finality and binding force as does one rendered by the court at the conclusion of an adversary proceeding. Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234 (1961); Wagner v. Warnasch, 156 Tex. 334, 295 S.W.2d 890 (1956); Ranger Ins. Co. v. Rogers, 530 S.W.2d 162 (Tex.Civ.App.1975, writ ref d n.r.e.).

Appellees argue that Ranger’s assault on the consent judgment constitutes an impermissible collateral attack. A collateral attack is an attempt to avoid the force of a judgment in a proceeding brought for some other purpose. A direct attack on a judgment, on the other hand, is an effort to change that judgment in a proceeding prosecuted for that specific purpose. Crawford y. McDonald, 88 Tex. 626, 33 S.W. 325 (1895); Ranger Ins. Co. v. Rogers, supra. The grounds which may be successfully urged in a collateral attack are that the court rendering the judgment has: (1) no jurisdiction of the person of a party or his property, (2) no jurisdiction of the subject matter of the suit, (3) no jurisdiction to render the particular judgment rendered, or (4) no capacity to act as a court. Austin Independent School District v. Sierra Club, 495 S.W.2d 878 (Tex.1973); Ranger Ins. Co. v. Rogers, supra; Hodges, Collateral Attacks on Judgments, 41 Texas L.Rev. 163, 164 (1962).

Ranger maintains that the district court was without jurisdiction to render the consent judgment because on the date of its rendition the cause was still pending in the Supreme Court of Texas on motion for rehearing. Although not articulated, Ranger’s collateral attack is necessarily premised upon the ground that the district court had no jurisdiction of the subject matter of the suit. “A lack of jurisdiction of the subject matter may exist for various reasons other than the allocation between levels of trial courts. For example, when the cause has been removed to an appellate court by the perfection of an appeal, the trial court loses the power to deal with it.” Hodges, id. at 513. This Court concludes that the consent judgment is one subject to collateral attack.

It is established law that once an appeal has been perfected, the appellate court acquires exclusive plenary jurisdiction over the cause. Carrillo v. State, 480 S.W.2d 612, 616 (Tex.1972); Ammex Warehouse Co. v. Archer, 381 S.W.2d 478 (Tex.1964). When an application for writ of error is filed, the Supreme Court acquires exclusive jurisdiction of the cause. Davis v. Huey, 571 S.W.2d 859, 863 (Tex.1978); Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605, 608 (1935).

Appellees rely upon Continental Casualty Company v. Street, 364 S.W.2d 184 (Tex.1963), in support of their argument that the consent judgment was valid and not void. Continental, however, is not authority for appellee’s thesis.

In Continental the Second Court of Civil Appeals, in October 1960, reversed the judgment of the district court and remanded the cause for new trial; however, the Court of Civil Appeals did not issue its mandate until August, 1961. Before the appellate court’s mandate issued, the district court retried the cause and rendered judgment. The Court of Civil Appeals dismissed the appeal of the judgment, holding that the judgment rendered before the return of the August 1961 mandate was void:

... it is made apparent that it was only on and after the date of August 11,1961, that the trial court was reinvested with jurisdiction to try or otherwise effectively act in the case, authority in said respect being controlled by the fact of the delivery thereto of the mandate of this court. 358 S.W.2d 746 at 747.

The Supreme Court, in reversing the judgment of the Court of Civil Appeals, focused upon the issue of whether the Rules of Civil Procedure dealing with the issuance of mandates by the Courts of Civil Appeals were jurisdictional. The Supreme Court concluded that such rules were primarily procedural in nature and not jurisdictional. Accordingly, the Court held the judgment not void merely because the Court of Civil Appeals’ mandate had not issued before rendition of the judgment.

Continental may be distinguished from the instant appeal because in that case the cause was not pending on motion for rehearing in the Court of Civil Appeals when the district court proceeded to trial and rendered judgment. Nevertheless, even under the reasoning in Continental this Court is satisfied that the district court’s rendition of the consent judgment in the cause when the matter was pending before the Supreme Court on motion for rehearing was “an actual interference with the appellate court’s active power and authority over a case by the trial court.” Continental Casualty Company v. Street, supra, at 188. Until the motion for rehearing was overruled, the Supreme Court had the authority to determine whether or not the judgment appealed from was correct. By rendering a new and different judgment, the district court “actually interfered” with the jurisdiction of the Supreme Court.

In the present appeal, the judgment of the Supreme Court was not final on December 11, 1980 because the motion for rehearing was still pending. Tex.R.Civ.P. 506 (repealed, effective April 1, 1984.) See Tex.R.Civ.P.Ann. 507 and 510 (Supp.1984). Until the Supreme Court overruled the motion for rehearing on January 14, 1981, the Supreme Court could have withdrawn its opinion and judgment, or could have modified the opinion and judgment in any one of a number of respects. During the penden-cy of a motion for rehearing the Court, on occasion, does withdraw its opinion and judgment, and hands down a different opinion and judgment.

Because the cause was still pending-before the Supreme Court on motion for rehearing, rendition of the consent judgment violates, as well, Tex.R.Civ.P.Ann. 301 (1977) providing that no more than one final judgment may be rendered in a cause and Tex.R.Civ.P.Ann. 329b(f) (Supp.1984) providing that upon expiration of the time within which the trial court has plenary power, the trial court cannot set aside a judgment except upon bill of review.

Because the district court was without jurisdiction to render the consent judgment, that judgment is void. Because the judgment in the present appeal is predicated upon the void consent judgment, it, too, is void.

Accordingly, the judgment on appeal is set aside and the appeal is dismissed. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961).

      . The executor of the estate of Amelda Ann McKnight was represented by personal counsel as well as by counsel for the liability insurance company.

      . In fact, in Robertson v. McKnight, the Supreme Court had initially refused Robertson’s application for writ of error with the notation "no reversible error”, but on motion for rehearing the Court granted the application for writ of error and then delivered its opinion and rendered judgment reversing the judgments of the district court and the Court of Civil Appeals.


text:
    G.A. JAMAIL, Appellant, v. GENE NAUMANN REAL ESTATE, et al., Appellees.
    No. 14155.
    Court of Appeals of Texas, Austin.
    Oct. 31, 1984.
    Rehearing Denied Dec. 5, 1984.

      James H. Pearl, Casseb, Strong & Pearl, San Antonio; Alvin Nored, Burnet, for appellant.
    Richard D. Mock, Evans, Mock & Webb, Burnet, for appellees.
    Before SHANNON, EARL W. SMITH and BRADY, JJ.
   SHANNON, Justice.

Appellant G.A. Jamail filed a declaratory judgment suit against appellee Gene Nau-mann Real Estate and others for a declaration of his rights in and to a tract of land known as “The Cove” situated in Burnet County. The land in question is situated between the 1020' contour line and the waters of Lake Buchanan. Appellees are owners of tracts “upland” from the 1020' contour line and claim a right of ingress and egress across the land below the 1020' contour (“The Cove,”) to the waters of Lake Buchanan. The district court determined by judgment, among other things, that appellees were entitled to the right of ingress and egress across the land in question, to and from the waters of the lake free from interference by Jamail. This Court will affirm the judgment.

In 1930 Cassie A. Friedsam owned a large ranch in western Burnet County, and in that year Cassie, by deed, granted to the predecessor of the Lower Colorado River Authority (LCRA) a perpetual easement and right to overflow and inundate her land lying along the Colorado River below the 1020' contour line in connection with the operation of a dam. It should be observed that Cassie Friedsam retained fee title to the land below the 1020' contour. The waters backed up from that dam form what is now known as Lake Buchanan.

Upon Cassie Friedsam’s death, one of her children, Linda Lou Friedsam, succeeded to that part of the ranch adjacent to Lake Buchanan. The partition deed expressly conveyed to Linda Lou all easements, reversions, uses and all other right, title and interest in and to all lands covered by Lake Buchanan in accordance with her mother’s deed to LCRA’s predecessor.

In 1947, Linda Lou conveyed a 386-acre tract of the ranch situated adjacent to Lake Buchanan to E.J. Ulhricht and V.S. Heck-man. This tract was set out by metes and bounds and called for the 1020' contour line as the boundary of that part of the land lying along the shore of Lake Buchanan. This tract lay “upland” from the 1020' contour line. In 1948, Linda Lou conveyed the land below the 1020' contour line, a part of which is now known as “The Cove,” to L.B. Dorbandt.

A few months after Linda Lou conveyed the 386-acre tract to Ulbricht and Heckman she filed suit in the district court of Burnet County seeking to set aside the provisions in her original deed to Ulbricht and Heck-man conveying the 386 acres whereby a perpetual easement was granted a'cross the remaining portion of her ranch for ingress and egress to the 386 acres conveyed. This lawsuit was numbered 3783, and was terminated by rendition of an agreed judgment whereby, among other things, Linda Lou gave full recognition to the right of Ul-bricht and Heckman to use Lake Buchanan as a means of ingress and egress to their land conveyed to them by their purchase deed.

In 1956 Ulbricht and Heckman filed suit in the district court of Burnet County against Linda Lou and her lessee seeking to recover title to land below the 1020' contour line (a part of which is now known as “The Cove”) and" also seeking a declaration from the district court recognizing their right of ingress and egress across the land below the 1020' contour line to their land from the waters of Lake Buchanan as well as the right to use their alleged “lake front” property, the land below the 1020' contour line, for such uses as were owned, claimed and enjoyed by Linda Lou prior to her conveyance to Ulbricht and Heckman. L.B. Dorbandt, the record owner of the land below the 1020' contour line, was not joined as a party in this suit.

On appeal, the Supreme Court of Texas held that Ulbricht and Heckman did not possess fee title to the land below the 1020' contour line. The Court held further, among other things, that Ulbricht and Heckman held a “quasi-easement” for use and enjoyment of the land below the 1020' contour line limited to the extent that the same would be reasonably necessary for the use and enjoyment of the land as lakefront property and that Ulbricht and Heck-man had a “quasi-easement” for ingress and egress to their property from Lake Buchanan. Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959).

Appellees are the successors-in-title to Ulbricht and Heckman, while appellant Ja-mail is successor-in-title to L.B. Dorbandt.

Appellant Jamail filed the instant suit as a declaratory judgment action seeking a judicial declaration as to the respective rights of the parties to the part of the land below the 1020' contour line commonly known as “The Cove.” Jamail contended, among other things, that the district court should declare that (1) he held title to the land below the 1020' contour line known as “The Cove”; (2) that he is entitled to control the surface of the land below the 1020' contour line known as “The Cove”; (3) that the land below the 1020' contour line known as “The Cove” is not subject to any easement for the benefit of appellees, the successors-in-title to Ulbricht and Heck-man; and (4) that he held title by limitations to the land below the 1020' contour line known as “The Cove.”

In response, appellees filed a cross-action seeking a declaration that they have the right of egress from their lands across lands of “The Cove” to the waters of Lake Buchanan without interference from Ja-mail, and the right of egress to their lands from the waters of Lake Buchanan without such interference. Appellees further sought a declaration that they possessed the rights set out by the Supreme Court in Ulbricht v. Friedsam, supra.

After a bench trial, the district court rendered judgment denying all relief to Ja-mail. The judgment further declared that appellees were entitled to the right of ingress and egress to their lands from the waters of Lake Buchanan, and the right of egress from such lands to the waters of Lake Buchanan at all times without interference, obstruction, or impediment by Ja-mail. The district court declared further that appellees for such purposes of ingress and egress have the right to go upon, use and “tranverse” the land below the 1020' contour line and that appellees own the rights and privileges reserved by Cassie A. Friedsam as grantor in her deed to the predecessor LCRA.

The judgment further confirmed the rights, easements, and privileges as were recognized by the Supreme Court in Ulbricht v. Friedsam, supra.

Upon request, the district court filed findings of fact and conclusions of law. The dispositive findings were, inter alia, that no “good and substantial” fence enclosed “The Cove” for a period in excess of the several limitation periods and that the construction of the fence along the 1020' contour line adjacent to “The Cove” was a convenience for the benefit of both Jamail’s and appellees’ predecessors-in-title and was not adverse to appellees or their predecessors-in-title. Further, the court found that Jamail and his predecessors-in-title had not made adverse use of “The Cove” for the required periods of time under the several limitations statutes.

The district court concluded, among other things, that Jamail took his deed to “The Cove” subject to the rights afforded appel-lees and their predecessors-in-title by the Supreme Court in Ulbricht v. Friedsam, supra. The court concluded further that Jamail had not obtained, through adverse use, the rights of appellees afforded them by the opinion of the Supreme Court in Ulbricht v. Friedsam, supra.

Jamail assails the judgment by many points of error, a major contention being that the district court erred in concluding that the Supreme Court in Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669 (1959) recognized any right or easement for the benefit of appellees in “The Cove.” Jamail argues further that the district court erred in concluding that he took his deed to “The Cove” subject to the right afforded appellees by Ulbricht v. Friedsam, supra. Jamail points out that his predecessor-in-title, L.B. Dorbandt, was not a party to the suit. Jamail’s contention requires, of course, an examination of the Supreme Court’s opinion in Ulbricht v. Friedsam, supra.

By his suit in 1956 Ulbricht endeavored to establish title to the lands below the 1020' contour line and, alternatively, to obtain a declaration that he and his partner held implied easement rights of ingress and egress over such lands below the 1020' contour line. The Supreme Court disposed of the first contention holding that Ulbricht and his partner did not hold title to the lands below the 1020' contour line. The Court in its opinion identifies the following as the “correct rule of law” governing the question whether Ulbricht possessed the right of ingress and egress over Friedsam’s lands below the 1020' contour line:

Where the owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous, permanent, and apparent nature, and sells the one in favor of which such quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.

The Supreme Court also quoted with approval language from Mitchell v. Castellaw, 151 Tex. 56, 246 S.W.2d 163 (Tex.1952):

It is universally recognized that where the owner of a single area of land conveys away part of it, the circumstances attending the conveyance may themselves, without aid of language in the deed, and indeed sometimes in spite of such language, cause an easement to arise as between the two parcels thus created — not only in favor of the parcel granted (“implied grant”) but also in favor of the one remaining in the ownership of the grantor (“implied reservation”). The basis of the doctrine is that the law reads into the instrument that which the circumstances show both grantor and grantee must have intended, had they given the obvious facts of the transaction proper consideration.

The easement referred to in Ulbricht has been described as an implied easement appurtenant, Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196 (Tex.1962), or as an easement by necessity. Capitol Rod & Gun Club v. Lower Colorado River Authority, 622 S.W.2d 887 (Tex.Civ.App.1981, writ ref d n.r.e.); Wall v. Lower Colorado River Authority, 536 S.W.2d 688 (Tex.Civ.App.1976, writ ref’d n.r.e.).

This Court has examined Ulbricht v. Friedsam, supra and has concluded again that the controlling holding is that, under the circumstances, Ulbricht and Heckman possessed an easement by necessity to cross over the lands below the 1020' contour line. Capitol Rod & Gun Club v. Lower Colorado River Authority, supra; Wall v. Lower Colorado River Authority, supra.

In any event, and however labeled, the easement recognized by the Supreme Court permitted Ulbricht the right to use and enjoy:

the surface land below the 1,020 contour line limited to the extent that the same may be reasonably necessary to the use and enjoyment of the land as lake front property, subject to the rights of the L.C.R.A. We further hold that [Ulbricht and Heckman] have the right to pasture their cattle on the land below the 1,020 foot contour line in front of their 386 acres, down to the water’s edge; and that [Ulbricht and Heckman] have ingress and egress to their property from Lake Buchanan.

Because appellees are successors-in-title to the lands of Ulbricht and Heckman, they possess the same rights and privileges in and to the land below the 1020' contour line as specified by the Supreme Court in its opinion.

Contrary to Jamail’s suggestion, the district court’s judgment is not in conflict with Capitol Rod & Gun Club v. Lower Colorado River Authority, supra, and Wall v. Lower Colorado River Authority, supra. Capitol Rod & Gun Club and Wall, unlike Ulbricht v. Friedsam, supra, involved the construction of express easements. This Court affirms the district court’s judgment upon the holding and conclusion that appellees held an implied easement of ingress and egress across the lands below the 1020' contour line as set out in Ulbricht v. Friedsam, supra.

Jamail’s other major contention asserted by several points of error is that, as a matter of law, he and his predecessor-in-title extinguished by adverse possession any easement which appellees and their predecessors-in-title may have had in and to the lands situated in “The Cove.” Alternatively, Jamail claims that the great weight and preponderance of the evidence required that the district court conclude that he and his predecessors-in-title had extinguished any easement rights in and to the lands in “The Cove” possessed by appellees and their predecessors-in-title. In considering Jamail’s “no evidence” (as a matter of law) point, this Court must reject all evidence contrary to the findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950). In reviewing factual sufficiency points of error, this Court considers all of the evidence to determine whether the findings are so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Jamail had the burden of proving the elements of adverse possession, including “a claim of right.” Orsborn v. Deep Rock Oil Corp., 153 Tex. 281, 267 S.W.2d 781 (Tex.1954). A claim of right must be manifested by declaration or by open or visible act. If there is no verbal assertion of claim to the land brought to the knowledge of the holder of title, the adverse possession must be so open and notorious and manifested by such an open visible act or acts that knowledge on the part of the title holder will be presumed. Orsborn v. Deep Rock Oil Corp., supra.

Jamail’s limitations claim is dependent upon L.B. Dorbandt’s use and possession of the land in “The Cove.” L.B. Dorbandt’s deposition testimony was that in 1948 he built a fence along the 1020' contour line which separated “The Cove” from the lands now owned by appellees. Dorbandt grazed cattle in “The Cove” and he testified that the purpose of the fence was to separate “The Cove” from the upland and to prevent his livestock from passing from his property in “The Cove” onto the uplands. The fence also served to keep the upland cattle from passing onto the lands of “The Cove.” Dorbandt’s fence did not enclose “The Cove” because it was constructed on only one side of “The Cove.” There was evidence that the fence began to deteriorate in the later years as no one was regularly repairing it. Once the lake area began to build up, appellees or their predecessors-in-title began to exercise their rights by using “The Cove” area to gain access to the lake for fishing and swimming.

Dorbandt testified on deposition that he paid ad valorem taxes on the land in “The Cove” area. He was also allowed to testify that he exercised “dominion and control” over the land in “The Cove.”

The adverse claimant who relies upon grazing only as evidence of his adverse use and enjoyment must show as a part of his case that the land in dispute was designedly enclosed. McDonald v. Weinacht, 465 S.W.2d 136 (Tex.1971). Dorbandt built the fence to prevent his cattle from straying onto the uplands, and at the same time to keep the upland cattle from coming down onto the lands of “The Cove.” The proof fails to show not only that “The Cove” was “designedly” enclosed, but also fails to show that the land in “The Cove” was even enclosed. By far the greater part of the boundary of “The Cove” consisted of the shores of Lake Buchanan and there was nothing to indicate that such shores were relied upon or used to enclose the land and keep out any person desiring access to the lands in “The Cove.” Vineyard v. Brundrett, 42 S.W. 232 (Tex.Civ.App.1897).

The judgment of the district court is affirmed.

EARL W. SMITH, J., not participating.


author: NYE, Chief Justice.

text:
    Alejandro Robles VASQUEZ, Appellant, v. STATE of Texas, Appellee.
    No. 13-83-332-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 1, 1984.

      A.G. Betancourt, Brownsville, for appellant.
    Reynaldo Cantu, Jr., Dist. Atty., Brownsville, for appellee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction for aggravated robbery. Trial was to a jury, which assessed punishment at fifteen years in the Texas Department of Corrections.

In the first of two points of error appellant raises on appeal, he asserts that it was reversible error on the part of the trial court not to charge the jury on the law applicable to his failure to testify.

First, we note that the appellant was not present during the last part of the trial of his case. The record reflects that the case was set for trial on November 9, 1981, and the jury selected. The appellant was present and pled not guilty at that time. The case was reset on the State’s motion for continuance to November 23, 1981, at which time the appellant did not appear. The case was reset until December 1, 1981. Appellant did not appear on this date. The trial court, at this time, found that appellant had voluntarily absented himself, and the case was tried in his absence. When a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion. TEX.CODE CRIM.PROC. ANN. art. 33.03 (Vernon Supp.1984); Gon zales v. State, 515 S.W.2d 920 (Tex.Crim.App.1974). No argument is raised on appeal regarding whether the appellant’s absence was voluntary. The trial court acted properly in proceeding to trial.

Appellant’s counsel requested instructions on appellant’s failure to testify at both the guilt/innocence and penalty stages of trial.

At the guilt stage, the following discourse between appellant’s attorney and the trial court took place:

THE COURT: Okay. Your requested charge on accomplice will be denied. You want failure to testify?
MR. BETANCOURT: Yes.
THE COURT: Well, I’ll give it to you.

The trial judge indicated that he was going to give the jury the charge on failure to testify. He later denied the requested charges. It is unclear from the record if the charge on appellant’s failure to testify is one of the charges the trial court denied. However, no instruction appears in the charge to the jury before us. We presume that the trial court denied the requested charge.

At the penalty stage of the trial, the appellant’s attorney again objected to the charge and requested the court to instruct the jury not to consider the appellant’s failure to testify and not to consider the absence of the defendant during their deliberations. The court denied the request. We find that appellant preserved, by request and objection, any error on the part of the trial court in refusing to submit an instruction on appellant’s failure to testify.

Here, we are faced with the dilemma of whether a voluntarily absent appellant is entitled to an instruction on his failure to testify. Where a request is made to the trial court to add to its charge at the punishment stage of the trial an instruction on the failure of the defendant to testify, or an objection is made to the omission of such charge, such error is reversible. Moss v. State, 632 S.W.2d 344 (Tex.Crim.App.1982); Brown v. State, 617 S.W.2d 234 (Tex.Crim.App.1981); Blevins v. State, 672 S.W.2d 828 (Tex.App.—Corpus Christi 1984, no pet.) (opinion on motion for rehearing). The same is true when a proper request is made by the appellant at the guilt stage of trial and such request is refused by the trial court. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). A seemingly conflicting consideration arises in this case because the appellant was absent voluntarily, and the voluntary absence of a defendant at trial may be commented upon to the jury ■by the trial court in certain circumstances. See Zambrano v. State, 478 S.W.2d 500 (Tex.Crim.App.1972). However, the jury may not infer guilt on account of a defendant’s voluntary absence.

The inclusion of the privilege against compulsory self-incrimination in the fifth amendment reflects the aspirations of the unwillingness of courts to subject those accused of crimes to self-accusation, perjury and contempt. Carter v. Kentucky, 450 U.S. 288, 298, 101 S.Ct. 1112, 1118, 67 L.Ed.2d 241, 250 (1981). Absent an instruction on the failure to testify, a jury will likely notice that a defendant does not testify and possibly speculate guilt from his silence. The underlying philosophy of requiring such an instruction when requested appears to be to reduce speculation as to why a defendant sits mute before the jury in the face of accusation.

We believe that, in this case, the trial court was at liberty to make its finding that the defendant was voluntarily absent and proceed to trial without him. Otherwise, the processes of law become paralyzed, and a defendant is allowed to benefit from his own wrongdoing. However, we also believe that where a defendant voluntarily absents himself, the court should proceed with the trial in like manner and with like effect as if he were •present. See Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). In the case at bar, the appellant, if he had been present, would have been entitled to an instruction on his failure to testify both at the guilt/innocence and penalty stages of trial. Carter v. Kentucky, Moss v. State, Brown v. State. We find that he was similarly entitled to these instruction in his absence, and it was reversible error on the part of the trial court not to give them. Carter v. Kentucky, 450 U.S. at 303, 101 S.Ct. at 1120, 67 L.Ed.2d at 253; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). See People v. Morales, 83 A.D.2d 804, 441 N.Y.S.2d 686 (1981). Appellant’s first ground of error is sustained.

In appellant’s second ground of error, he asserts that the verdict and judgment rendered are erroneous because appellant was not arraigned before the jury. TEX.CODE CRIM.PROC.ANN. art. 36.-01(1) and (2) provide:

1) The indictment or information shall be read to the jury by the attorney prosecuting. When prior convictions are alleged for purposes of enhancement only and are not jurisdictional, that portion of the indictment or information reciting such convictions shall not be read until the hearing on punishment is held as provided in Art. 37.07.
2) The special pleas, if any, shall be read by the defendant’s counsel, and if the plea of not guilty is also relied upon; it shall also be stated.

Until the indictment is read and a plea is entered, the issue is not joined between the State and the accused before the jury. Peltier v. State, 626 S.W.2d 30 (Tex.Crim.App.1981). This provision has been construed by the courts as mandatory, but, waiver of the provision may be established. See Peltier v. State, 626 S.W.2d at 31.

On appeal, we also follow the presumptions set forth in TEX.CODE CRIM.PROC. ANN. art. 44.24(a) which states:

The courts of appeals and the Court of Criminal Appeals shall presume ... that the defendant was arraigned; that he pleaded to the indictment or other charging instrument ..., unless such matters were made an issue in the court below, or otherwise affirmatively appears to the contrary from the record.

The record reflects, through a statement made by appellant’s counsel, that the jury was selected and sworn in. He then stated: “The announcement was made of a plea of not guilty by the defendant, and the jury was advised to be here at nine o’clock this morning to begin testimony on the part of the state.” The judgment also affirmatively shows that the defendant was duly arraigned and pleaded not guilty. The record does not affirmatively show that appellant was not properly arraigned or allowed to plead to the indictment. We also note nothing in the record to show that these omissions if, in fact, they were omitted, were brought to the attention of the trial court. We will presume that appellant was arraigned and pleaded not guilty to the indictment. Boening v. State, 422 S.W.2d 469 (Tex.Crim.App.1967); Garcia v. State, 629 S.W.2d 196 (Tex.App.—Corpus Christi 1982, pet. ref’d). Appellant’s second ground of error is overruled. The judgment of the trial court is reversed and the cause remanded to the trial court.

      . In Taylor v. United States, 414 U.S. 17, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), the United States Supreme Court found that a voluntarily absent defendant had waived his right to testify and personally confront the witnesses against him. The Supreme Court pointed out that, in that case, the trial court admonished the jury throughout the trial that no inference of guilt could be drawn from the defendant's absence. The Court, however, did not discuss the propriety of the instruction.


text:
    Leslie TENERY, Appellant, v. STATE of Texas, Appellee.
    No. 13-83-490-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 1, 1984.

      Eric Brown, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
    Before NYE, C.J., and GONZALEZ and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction for the offense of murder. The jury assessed punishment at confinement in the Texas Department of Corrections for fifty (50) years and a fine of $5,000.00. The sufficiency of the evidence is not challenged on appeal. We affirm.

Appellant was indicted for the offense of murder on January 20, 1983. In his first trial, the jury, after having found appellant guilty of murder, assessed punishment at confinement in the Texas Department of Corrections for twenty-five (25) years and a fine of $10,000.00. On May 25,1983, appellant filed his Amended Motion for New Trial alleging, among other things, prose-cutorial misconduct during jury argument. After hearing evidence and argument of counsel, the trial court vacated appellant’s judgment of conviction, and granted his Amended Motion for New Trial because of “unintentional improper jury argument.”

At the second trial, the jury found appellant guilty of the offense of murder and also assessed punishment at 50 years’ confinement in the Texas Department of Corrections and a fine of $5,000.00. Appellant brings forward eight grounds of error on appeal.

In his first ground of error, appellant contends that the trial court erred in overruling his special plea of double jeopardy prior to the second trial. See TEX. CODE CRIM.PROC.ANN. arts. 27.05 and 27.07 (Vernon Supp.1984). By his special plea, appellant alleged that he had been previously placed in jeopardy for the same offense in his second trial. He also alleged that the trial court granted the new trial because of prosecutorial overreaching or intentional conduct on the part of the prosecutor wherein, during jury argument at the guilt/innocence phase of the trial, the prosecutor allegedly pointed at the appellant and called him a “Son-of-a-Biteh.” In addition, during the punishment phase of the trial, the prosecutor allegedly referred to appellant’s plea for leniency as “a bunch of crap.” Appellant’s plea of double jeopardy was overruled prior to the second trial on October 31, 1983.

The Double Jeopardy Clause of the Fifth Amendment protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense. U.S. Const. Amend. 5. See also TEX.CONST. art. I, § 14. Ordinarily, a motion by the defendant for mistrial is assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Only where the government conduct in question is “intended to provoke the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). “The important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.” Id.

Whether the exception (i.e., intentional government overreaching) extends to situations where, as here, an earlier prosecution culminated in a jury verdict only to be set aside by an order of new trial is a matter of some doubt. The uncertainty arises from the established principle that “the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to support the verdict, poses no bar to further prosecution on the same charge.” Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982); United States v. DiFrancesco, 449 U.S. 117, 130-31, 101 S.Ct. 426, 433-34, 66 L.Ed.2d 328 (1980). Similarly, when the trial proceeds to its conclusion despite a legitimate claim of seriously prejudicial error, the Double Jeopardy Clause will present no obstacle to a retrial if the conviction is reversed on appeal. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Durrough v. State, 620 S.W.2d 134, 139 (Tex.Crim.App.1981).

In the present case, the alleged prosecu-torial misconduct did not result in a mistrial. Appellant complains of the following jury argument by the prosecutor (Mr. Bab-cock) at the guilt/innocence phase of the trial:

“... Folks, you have got one thing to do in this case. I am going to ask you one thing. What is justice in this case? What is justice? That is what the bottom line is in this case. The tombstone reads Anthony Bernard Stein. He had a right to live, and no stupid chunk [sic], son of a bitch like this guy has a right to take his life away. I don’t care if that guy is in Goofie’s Lounge or whether he is on Hewit Drive, everybody has a right to live.... ”

Appellant’s counsel contends that he did not object to the prosecutor’s argument at the time it was made for the reason that he was “paralyzed with shock,” and “couldn’t believe that it had occurred.” Additionally, appellant complains of the following jury argument at the punishment phase of the trial:

“... MR. BABCOCK: Whatever you do, you hit that guy up for a ten-thousand-dollar fine, ten thousand dollars. Every day that he — whatever time you put him in prison, I want him to think every day that he is going to have to put another dollar, five dollars toward paying for the things he has done, pay for this. I wish the law would provide that a man can go to prison for twenty-five years and pay a fifteen-thousand-dollar fine to the family in restitution. I wish that we had a provision for that, but we don’t. But it is high time the people who start committing those crimes start paying back in more ways than one. He may not have much money, but brother, you are going to have to pay for it. The society gets fed up. We get fed up with all of this crap. We get fed up with — —”

At this instance, appellant did object to the language used by the prosecutor throughout the arguments. The trial court admonished Mr. Babcock and had him apologize to the jury for that remark, which Babcock did. The trial court then granted appellant’s instruction to disregard these statements, and denied his motion for mistrial.

Appellant contends on appeal that the granting of the new trial in appellant’s case was attributable to prosecutorial overreaching. Specifically, appellant contends that the prosecutor’s conduct at the first trial, through “gross negligence or intentional misconduct,” caused aggravated circumstances to develop which seriously prejudiced the appellant. Therefore, appellant argues that, since a mistrial should have been declared by the trial court on its own at the first instance of misconduct, and the new trial was necessitated because of the trial errors, this was sufficient to trigger preclusion of retrial. We disagree.

We hold that appellant’s second trial for the same offense is not barred by virtue of the Double Jeopardy Clause of the Fifth Amendment or the related provision of the Texas Constitution. Appellant’s first conviction was vacated when the trial court granted appellant’s motion for a new trial. See Alberts v. State, 458 S.W.2d 83 (Tex.Crim.App.1970); Mahavier v. State, 644 S.W.2d 129, 134 (Tex.App.—San Antonio 1982, no pet.); McGee v. State, 629 S.W.2d 182, 184 (Tex.App.—Waco 1982, no pet.). Even assuming the narrow exception applied to this ease, we cannot say on the facts here presented that the misconduct assigned by appellant constituted prosecutorial overreaching sufficient to bar appellant’s retrial. See Robinson v. Wade, 686 F.2d at 309. There is no question but that the new trial came about as a result of prosecutorial error. However, the evidence clearly supports the trial court’s finding of “unintentional improper jury argument.” See Anderson v. State, 635 S.W.2d 722 (Tex.Crim.App.1982); Chvojka v. State, 582 S.W.2d 828, 830-31 (Tex.Crim.App.1979). We hold that the tria! court properly overruled appellant’s plea of double jeopardy. Ground of error number one is overruled.

In appellant’s next four grounds of error, he contends that, for various reasons, the trial court erred by entering in the judgment and sentence an affirmative finding that a deadly weapon was used in the commission of the offense. Appellant’s first contention is that the trial court erred in finding that a firearm was used in the commission of the offense because that issue was not submitted to the jurors, who were the exclusive triers of fact in this case. The indictment charged, in pertinent part, that appellant:

“did then and there intentionally and knowingly cause the death of an individual, Anthony Bernard Stein, by shooting him with a firearm." (Emphasis added.)

The only theory of guilt submitted in the court’s charge was that the appellant intentionally or knowingly caused the death of the individual by shooting the individual “with a firearm.” The verdict, signed by the foreman, read: “We, the Jury, find the Defendant, Leslie Tenery, guilty of the offense of Murder, as alleged in the indictment.”

The verdict necessarily included a finding that the appellant committed murder by shooting the individual with a firearm. Therefore, the jury’s verdict reflects an affirmative finding that a firearm was used in the commission of the offense. Ex parte Moser, 602 S.W.2d 530, 533 (Tex.Crim.App.1980); see Chavez v. State, 657 S.W.2d 146 (Tex.Crim.App.1983); Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim.App.1982). The jury’s verdict, based upon the indictment, authorized the inclusion in the judgment of a finding of use of a firearm. However, we do find that the trial court erred in entering its finding in the judgment rather than the jury’s finding, but this is an error in the judgment which may and will be corrected by this Court.

In compliance with art. 42.12, § 3f(a)(2), this Court has the power to reform and correct the judgment as the law and nature of the case may require, TEX. CODE CRIM.PROC.ANN. art. 44.24(b), and because we have before us the same information for reforming or correcting the judgment as the trial court would have should we reverse and remand, we hereby reform and correct the judgment to reflect the fact that the jury, not the trial court, made the affirmative finding. See Barecky v. State, 639 S.W.2d 943, 945 (Tex.Crim.App.1982); Reed v. State, 649 S.W.2d 357 (Tex.App.—Fort Worth 1983, no pet.). Accordingly, we order that the affirmative finding entered in the judgment, to wit: “... and Court further finds that a firearm was used during the commission of offense, ....” be stricken from the judgment and substitute therefor the following: “and by its verdict, the jury made an affirmative finding that the defendant did use or exhibit a firearm in the commission of the offense of murder, .... ”

Next, appellant invokes the collateral estoppel doctrine embodied in the Double Jeopardy Clause, and contends that the State is prevented from asking for and receiving the affirmative finding at appellant’s second trial when the State failed to obtain the finding at appellant’s first trial. Appellant correctly points out that the concepts of double jeopardy and collateral es-toppel extend to the punishment phase of a trial. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). Appellant then relies on the proposition that the State “is precluded from relitigat-ing an issue of fact at a second trial or at a second punishment hearing where it failed to properly litigate that factual issue at the first trial or at the first punishment hearing.” Ex parte Augusta, 639 S.W.2d 481, 485 (Tex.Crim.App.1982); Cooper v. State, 631 S.W.2d 508 (Tex.Crim.App.1982). Appellant’s reliance on this proposition is misplaced.

Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). Thus, two inquiries are necessary: (1) what facts were necessarily determined in the first lawsuit; and (2) is the government trying to relitigate facts necessarily established against it at the first. See Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App.1981).

The State did not request it, and the judgment of the first trial did not recite an affirmative finding that a firearm was used in the commission of the offense. However, the jury found in the first trial, as well as the second trial, that appellant was guilty of murder “as charged in the indictment” (i.e., by shooting the individual with a firearm). The ultimate fact that a firearm was used in the commission of the offense was necessarily determined by the jury in favor of the State in both trials. Therefore, the State was not attempting to relitigate a factual issue already resolved against it. We hold the State was not estopped from requesting that the judgment reflect the affirmative finding of use of a firearm.

In another ground of error, appellant contends that the trial court erred in entering the affirmative finding because the State’s request for such finding at the conclusion of the second trial was the result of prosecutorial vindictiveness. The record shows that the prosecutor at the first trial was Mr. Babcock. The record also shows that the attorney representing the State at the second trial was Ms. Gray. At the second trial, following announcement of the jury’s verdict and sentencing in open court, Mr. Babcock requested the court enter an affirmative finding of use of a firearm, over appellant’s objection. Appellant strongly contends that Mr. Babcock’s actions at the second trial were the result of vindictiveness for appellant’s successful urging of his motion for new trial following the first trial. We disagree.

We recognize the general principle that “rendition of a higher punishment by a jury upon retrial does not violate the Double Jeopardy Clause and does not offend due process so long as the jury is not informed of the prior sentence, and the second punishment is not otherwise shown to be a product of vindictiveness.” Weeks v. State, 521 S.W.2d 858, 863-64 (Tex.Crim.App.1975); McGee v. State, 629 S.W.2d at 184. However, such principle has no bearing on the instant case. The jury’s rendition of a higher punishment at the second trial (i.e., 50 years’ confinement, compared to 25 years’ confinement at the first trial) was clearly unrelated to the subsequent request for the affirmative finding by the State. Secondly, the provisions of article 42.12, § 3f(a)(2), as applied to the provisions of article 42.12, § 15(b), mandate that the trial court enter the affirmative finding (as found by the trier of fact). The affirmative finding in the judgment has a definite impact on appellant’s eligibility for parole and punishment to be served. However, we cannot say that the State’s request that the trial court make an affirmative finding of what it was technically required to do by statute amounts to vindictiveness on the part of the prosecutor.

Finally, appellant contends that the affirmative finding of a firearm must be deleted from the judgment and sentence because the trial court lacked jurisdiction to enter such a finding. Appellant’s contention is premised on the fact that the prosecutor did not request, and the trial court did not grant, the affirmative finding until after appellant had given oral notice of appeal in open court. Appellant’s argument that the moment he uttered the words: “Your Honor, we would like to give notice of appeal ...” deprived the trial court of jurisdiction to exercise any further control over the judgment is erroneous and without merit. TEX.CODE CRIM.PROC. ANN. art. 44.11. Grounds of error numbers two through five are overruled.

In his sixth ground of error, appellant contends the trial court erred in excluding testimony of specific acts of misconduct on the part of State’s witness, Clyde Eugene Dill. Dill testified that, on December 13, 1982, he, the deceased, and the appellant went to a shed outside of Goofy’s Lounge. He testified that while they were there, appellant shot the deceased once, and then “when he fell and hit the ground, then he (appellant) put the gun down toward his head (the deceased’s) and emptied the gun on him.” Appellant, on the other hand, testified that “Gene” Dill was the person who shot the deceased.

On direct examination, Dill testified that he was currently on eight years’ probation for an aggravated assault conviction. During the cross-examination, Dill again admitted that he had been convicted of aggravated assault in 1982 and that it involved causing serious bodily injury to another person. He also admitted that he had previously been convicted of a misdemeanor theft. During cross-examination, appellant sought to introduce testimony concerning specific acts of misconduct, or, more specifically, some details of Dill’s conduct which resulted in his conviction for the offense of aggravated assault.

Appellant made a Bill of Exception outside the presence of the jury, stating for the trial court and the record the testimony he sought to introduce. It was shown that, in August of 1982, in Midland County, Texas, Dill had pled guilty to intentionally and knowingly causing serious bodily injury to Christopher Caldwell by stabbing him with a knife. Dill proceeded with the following account of the circumstances surrounding the aggravated assault:

“Q In fact, for no apparent reason, you walked up to this man, stabbed him three times in the stomach; isn’t that right?
A It wasn’t three times, and I had my reasons.
Q How many times do you say you stabbed him?
A One time.
Q What is your reason?
A The man — I let the man live with me for a period of probably a couple of months, and he stole a bunch of my riding gear, a bunch of my tools. He pawned — he took them and pawned my tools. About three hundred dollars’ worth of tools. And he lied to me and spread all kinds of rumors about me, and was telling everybody that he was going to whip me if he ever got the chance. And I told him that he could make it right, and I gave him four or five different opportunities to make it right, and he never would. He was running from me and telling everybody that he was going to whip my ass, and all that. And I kept giving him chances, letting it slide, giving him more chances, and nothing ever worked.
Q So you went up and stabbed him?
A Well, I went up and told him that I either wanted my money — I wanted to get my money — because he was working at the time — and he laughed at me, and he laughed at me again.
Q So you stabbed him?
A Yes, I did. That isn’t how it started out, but that’s the way it ended up.”

At the conclusion of appellant’s Bill of Exception, the trial court reasserted his earlier ruling that the details of the offense were not admissible and, therefore, not allowed before the jury. Appellant renewed his offer of testimony after he had testified, which was overruled.

“[I]t has long been the law of this State that proof of either mere accusations, or specific acts of misconduct, is inadmissible to affect the credibility of the accused or any other witness.” Murphy v. State, 587 S.W.2d 718, 722 (Tex.Crim.App.1979); Hoffman v. State, 514 S.W.2d 248 (Tex.Crim.App.1974). This rule assumes that the witness has made no “blanket statement concerning his conduct, such as never having been charged or convicted of any offense, or never having been ‘in trouble.’ ” Hoffman v. State, 514 S.W.2d at 254. In the present case, Dill did not make a “blanket statement” regarding his conduct.

Appellant contends that, based upon the reasoning in Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875 (1954), the details of Dill’s prior conviction were admissible because the jury had a fact issue to decide which person, Dill or the appellant, was the aggressor. In Dempsey, unlike here, the issue before the jury was self-defense. The Court stated that “the defense may offer testimony as to any specific act of violence or misconduct which evidences the violent character of the deceased (emphasis added) under the following conditions:

“If offered for the purpose of showing the reasonableness of defendant’s claim of apprehension of danger, it must further appear that the acts of violence or misconduct were known to the defendant at the time of the homicide.
But if offered for the purpose of showing that the deceased was in fact the aggressor (not that the defendant thought the deceased was making or about to make an attack) the witness must know but it need not be shown that appellant had knowledge of the acts of violence of the deceased at the time of the homicide.”

Appellant contends that the latter part of the foregoing rule should be extended to the present case to allow appellant to present evidence tending to show that the witness, Dill (rather than appellant), was the aggressor. We decline to apply the rule set out in Dempsey to this case. Further, there is no testimony that Dill was the intended victim, where the details of specific acts of violence by Dill may be admissible to explain the condition of appellant’s mind at the time of the homicide. See Dixon v. State, 634 S.W.2d 855 (Tex.Crim.App.1982). Dill admitted several times before the jury his conviction for aggravated assault. This alone was sufficient for impeachment purposes. The jury had sufficient testimony before them to decide who was the aggressor against the deceased. The exclusion of such testimony by the trial court was not error. Ground of error number six is overruled.

In ground of error number seven, appellant contends that the trial court improperly refused to allow him to question the State’s witness, Wiley Queen, concerning his prior criminal record. Appellant made his Bill of Exception outside the presence of the jury. Queen testified that he had successfully served a one-year probated sentence for the offense of misdemeanor theft in 1975. He also testified that he had been fined in 1976 for misdemeanor assault on a female. Queen testified that he had been involved in an obstruction of justice charge back in 1952 or ’53. He explained that this was a civil matter involving the taking of his daughter. He stated that he paid an $85.00 fine and spent a night in jail for that offense. After hearing the testimony and arguments of counsel, the trial court ruled that appellant could not impeach Queen with proof of his prior misdemeanor convictions.

The general rule regarding impeachment of witnesses is that a witness, by testifying, places his credibility in issue, and the opposing party may seek to impeach that credibility by proof that the witness has been convicted previously of any felony offense, or a misdemeanor involving moral turpitude. Even then, however, such offenses must not be so remote in time so as not to be relevant to the present credibility of the witness. Taylor v. State, 612 S.W.2d 566, 572 (Tex.Crim.App.1981). See TEX.CODE CRIM.PROC. ANN. art. 38.29 (Vernon 1979). The question of remoteness is largely a matter within the discretion of the trial court, although the general rule of thumb is that, if the release from confinement is less than ten years prior, the conviction may be admitted. Taylor v. State, 612 S.W.2d at 572.

Appellant contends that the misdemeanor assault charge against Queen was admissible to impeach him because it was a crime involving moral turpitude. The offense of aggravated assault on a female is a misdemeanor involving moral turpitude. Trippell v. State, 535 S.W.2d 178 (Tex.Crim.App.1976). However, in the present case, there was no evidence that the assault charges against Queen back in 1976 amounted to an aggravated assault. More importantly, even assuming the offense in question was shown to be one involving moral turpitude, the testimony elicited did not show that a final conviction had resulted:

“THE COURT: All right. Would have had to be a misdemeanor assault. What type of assault was it? It was not an assault on a female, was it?
THE WITNESS: Well, what it was, sir, this woman cussed me, and what she had said, I don’t take exception to anybody on that. And I had a piece of material in my hand, or a piece of pipe, and I threw it and it hit a chair, like this right here, and bounced off. So she went down to the Sheriff’s Office up there and—
THE COURT: Filed assault on you?
THE WITNESS: Well, they filed charges on me. Well, I didn’t pay the—
THE COURT: Did you go to court?
THE WITNESS: No, sir.
THE COURT: What court, Municipal Court?
THE WITNESS: It was J.P. Court.
THE COURT: J.P. Court.
THE WITNESS: And fine, I think was — I think $17; I’m not sure. It was paid and — but it wasn’t paid by me.
THE COURT: And you never appeared in court on the charge?
THE WITNESS: Well, I was notified that there had been a paper sent out to me — for me. Then I went down to the Sheriff’s Office and turned myself in, because at that time, after the incident, I went on to work.
THE COURT: But you never — you never did go to court on that case?
THE WITNESS: No, sir.
THE COURT: You went down to the Sheriff's Office?
THE WITNESS: And the fine was paid.”

We hold that the trial court did not commit error in excluding the evidence of Queen’s prior criminal record. The misdemeanor theft offense involved moral turpitude, but the witness had completed his probation at the time of the trial. See TEX.CODE CRIM.PROC.ANN. art. 38.29; Trippell v. State, 535 S.W.2d at 180. The obstruction of justice charge thirty years earlier was too remote in time to be admissible for impeachment purposes. Finally, the misdemeanor assault charge was not shown to be one involving moral turpitude, or even that it resulted in a final conviction. Therefore, under the provisions of Art. 38.-29, the evidence was properly excluded from the jury. Ground of error number seven is also overruled.

In his last ground of error, appellant contends that the trial court erred in refusing, at the punishment phase of the trial, to submit to the jury the issue of probation as authorized by TEX.CODE CRIM.PROC.ANN. art. 42.12, § 3a (Vernon 1979). Prior to trial, appellant filed with the Court his sworn motion stating that he had never been convicted of a felony in this State or any other State, and requested the Court to submit to the jury his application for a probated sentence. At a hearing held outside the presence of the jury, appellant testified that, in 1977, he had been convicted of the offense of driving while intoxicated in the State of New York. He stated that he received three years’ probation and 60 days in the county jail. He also stated that he had successfully completed his probation. Appellant then admitted that earlier, in 1975, he had been convicted of DWI in the State of New York, for which he received a $500.00 fine. Appellant testified only that he did not understand the second DWI conviction (1977) to be a felony. He did not present any evidence concerning either conviction.

Appellant, not the State, had the burden of establishing his eligibility for probation. Baker v. State, 519 S.W.2d 437 (Tex.Crim.App.1975); Flores v. State, 487 S.W.2d 122 (Tex.Crim.App.1972). A jury may not recommend probation in its verdict unless both the sworn motion and the evidence show, and the jury finds in its verdict, that the defendant has never before been convicted of a felony in this or any other state (emphasis added). Art. 42.12, § 3a. In the present ease, the State presented evidence to show that, under the applicable laws of the State of New York, a second conviction for DWI was a felony offense. At the hearing, appellant relied on his sworn motion for probation alleging that he had never been convicted of a felony; however, it did not constitute proof of the matter asserted. Green v. State, 658 S.W.2d 303, 309 (Tex.App.—Houston [1st Dist.] 1983, pet. ref’d.). The trial court found from the evidence that appellant had, in fact, been previously convicted of a felony. Appellant objected to the court’s ruling on the grounds of insufficient evidence introduced by the State to show what the law of the State of New York was at the time appellant was convicted.

At the punishment phase of the trial, appellant testified as to his two prior convictions for DWI. No other evidence was produced before the jury showing that appellant had never been convicted of a felony. Appellant then objected to the omission of the issue of probation in the jury charge.

From readily available and easily accessible sources, we, as appellate judges, are competent to ascertain with reasonable certainty whether appellant’s second conviction for DWI constituted a felony offense of another state. Acosta v. State, 650 S.W.2d 827, 837 (Tex.Crim.App.1983); Mason v. State (Tex.Crim.App. No. 1038-82, Sept. 14, 1983) (unpublished). Taking judicial notice of New York law, we agree with the trial court’s finding that, based on the punishment assessed, appellant’s second DWI conviction (1977) amounted to a felony offense. Consolidated Laws of New York Ann. (Vehicle and Traffic) 62A, § 1192(5) (McKinney’s Supp. 1983-84) (amendments included).

The jury need not be charged on the issue of probation in the absence of evidence before the jury to support the motion for probation. Walker v. State, 440 S.W.2d 653, 659 (Tex.Crim.App.1969). The mere filing of the motion was not sufficient proof to establish appellant’s eligibility for probation. Palasota v. State, 460 S.W.2d 137, 140-141 (Tex.Crim.App.1970). We hold that the trial court’s refusal to submit the requested instruction on probation to the jury was not error. Ground of error number eight is overruled.

The judgment of the trial court, as reformed to reflect the jury’s affirmative finding of use of a firearm in the commission of the offense of murder, is affirmed.

GONZALEZ, J., not participating.

      . The Special Plea under arts. 27.05 and 27.07 (Vernon Supp.1984) is a mechanism for avoidance of reconviction, not retrial, and, in its limited function, it falls short of the protections extended to criminal defendants by the double jeopardy clause of the Fifth Amendment as applicable to the states through the Fourteenth Amendment. Robinson v. Wade, 686 F.2d 298, 302 (5th Cir.1982); see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

      . A firearm is a deadly weapon per se. Stewart v. State, 532 S.W.2d 349 (Tex.Crim.App.1976); TEX.PENAL CODE ANN. § 1.07(a)(ll) (Vernon 1974).

      . Article 42.12, § 3f(a)(2), provides:
      "(a) The provision of Sections 3 and 3c (granting of probation) of this Article do not apply:
      (!)***
      (2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in Section 1.07(a)(ll), Penal Code, during the commission of a felony offense or during immediate flight therefrom. Upon affirmative finding that the defendant used or exhibited a deadly weapon during the commission of an offense or during immediate flight therefrom, the trial court shall enter the finding in the judgment of the court. Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter the finding in its judgment."

      Article 42.12, § 15(b), V.A.C.C.P., provides:
      "(b) A prisoner under sentence of death is not eligible for parole. If a prisoner is serving a sentence for the offenses listed in Section 3f(a)(l) of this Article, or if the judgment contains an affirmative finding under Section 3f(a)(2) of this Article, he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less, but in no event shall he be eligible for release on parole in less than two calendar years

      . While it is clear from the record that the trial court and both counsels were reading from McKinney’s Consolidated Laws of New York Ann. 62A (Vehicle and Traffic Law) § 1192(5), the State failed to formally offer this exhibit as evidence in the proceeding.


text:
    HARRIS DATA COMMUNICATIONS, INC., Relator, v. Honorable Jerry A. DELLANA, Respondent.
    No. 14264.
    Court of Appeals of Texas, Austin.
    Nov. 7, 1984.
    Rehearing Denied Dec. 5, 1984.
    Raymond E. LaDriere, II, Rain, Harrell, Emery, Young & Doke, Dallas, for relator.
    Braden W. Sparks, Newman, Shook & McManemin, Dallas, for party in interest, Insurance Company of America.
    Before SHANNON, KEITH  and BRADY, JJ.

       Keith, retired, Justice, Ninth Court of Appeals, sitting by assignment. See Art. 1812, as amended]

   BRADY, Justice.

This is an original mandamus proceeding instituted by Harris Data Communications, Inc., Relator, against Respondent, the Honorable Jerry A. Dellana, Judge of the 98th Judicial District Court of Travis County. Relator seeks an order requiring Judge Dellana to vacate his ruling of June 27, 1984, in Cause No. 330,294, pending in that court, styled Insurance Company of America v. Harris Data Communications, Inc., which ordered Data Communications to produce what has been termed a “Critical Accounts Report.” Harris Data claims they have a privilege and exemption from Tex.R.Civ.P. 166b(3)(d) and has requested that this Court vacate the trial judge’s order allowing discovery. We will deny the petition for writ of mandamus.

Underlying this original proceeding is a damage suit based on alleged fraudulent misrepresentations by Richard Wilson, a Harris Data computer salesperson, to the representatives of Insurance Company of America, hereinafter called ICA, in connection with the insurance firm’s lease of a computer system. After leasing the system, ICA apparently experienced problems with its performance, and on July 2, 1981, wrote a formal letter of complaint to Harris Data allegedly listing some five misrepresentations made to them by Wilson. A few days later, Wilson wrote what has been called a “Critical Accounts Report” to one of the marketing divisions of his company, sending it to his superiors in the company. It was not sent or addressed to legal counsel. The parties disagree as to the facts surrounding the drafting of the “Critical Accounts Report.” Relator contends that after receiving ICA’s letter of complaint, Wilson prepared the report informing his superiors of the claim and “anticipated litigation.” Neither the letter nor the report were included in the record. Although relator argues that this was a “demand” letter, this Court has no way of determining this fact.

Relator contends that the report is a communication between representatives of a party regarding an investigation of ICA’s claims and is therefore protected from discovery under the proviso in Rule 166b(3)(d), which provides:

(A) any communication passing between agents or representatives or the employees of any party ... where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen....

Relator’s proof showed that the “Critical Accounts Report” was:

(1) a communication between representatives or employees of a party;
(2) was made subsequent to the occurrence or transaction on which the suit is based;

Relator’s proof is, however, inadequate to show that the “Critical Accounts Report” was made in connection with the investigation or defense of a claim, or investigation of the occurrence or transaction out of which the claim arose.

Relator asserts that the insurance company delivered to Wilson a demand letter directed at Harris. That letter supposedly accused Harris of false and misleading practices and specified the insurance company’s claims. However, there is nothing in the limited record to support those assertions; certainly, the exhibits to the petition for mandamus do not contain a copy of such a letter. There is no other proof as to the contents of the letter. • The only support for these assertions is found in the veiled reference in the one and one-half page excerpt of testimony of Thomas Eugene Meyer.

Accordingly, this Court may not properly conclude that the “Critical Accounts Report” was made in connection with the investigation of a transaction out of which the claim arose.

In determining if a writ of mandamus should be issued, it is well settled that it will not issue unless a clear abuse of discretion is shown. West v. Solito, 563 S.W.2d 240 (Tex.1978); Crane v. Tunks, 328 S.W.2d 434 (Tex.1959).

Since we have nothing in the record to support Relator’s arguments that the report in question was prepared in connection with a possible legal defense of a claim, we cannot say that the trial court clearly abused its discretion in allowing discovery of this report.


text:
    Carolina Betancourt PARKER, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-169-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 8, 1984.
    Guadalupe Olvera, III, Brownsville, for appellant.

      Reynaldo Cantu, Jr., Dist. Atty., Brownsville, for appellee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a conviction for credit card abuse. TEX.PENAL CODE ANN. § 32.31(b)(1)(A) (Vernon 1974). Trial was before a jury. The trial court assessed punishment at two years’ confinement in the Texas Department of Corrections; probated for a period of two years and a $400.00 fine. We affirm.

The indictment alleged that appellant: “... did then and there unlawfully, with intent to fraudulently obtain property and services from Rachel Soto, present and use a Montgomery Ward Credit Card with knowledge that the card had not been issued to the Defendant and that the card was not used with the effective consent of Verniece Ramirez, the cardholder, ...”

The application portion of the charge instructed the jury that if they found from the evidence beyond a reasonable doubt that appellant did present or use a Montgomery Ward credit card, “with specific intent to fraudulently obtain personal property, ... and that the credit card had not been issued to her, and that she did not have the effective consent of the cardholder ..., then they will find appellant guilty as charged.”

In appellant’s first ground of error, she contends that the evidence was insufficient to show that she intended to obtain services with the credit card. The State concedes, and we agree, that the evidence was insufficient to prove beyond a reasonable doubt that appellant intended to fraudulently obtain “services. The trial court, however, charged the jury only on appellant’s intent to obtain personal property and not “services, ” as defined in TEX.PENAL CODE ANN. § 31.01(7) (Vernon 1974), and appellant was not convicted on this theory. Appellant’s first ground of error is overruled.

In her second ground of error, appellant contends that because the indictment alleges that appellant intended to fraudulently obtain “property and services,” the trial court must charge the jury that they must find from the evidence both property and services before returning a guilty verdict. This contention is without merit.

We hold that “it was proper for the State to charge appellant by alleging con-junctively that [s]he intended to fraudulently obtain property and services, and proof of either would have been sufficient to convict. See: Sidney v. State, 560 S.W.2d 679 (Tex.Crim.App.1978); Garcia v. State, 537 S.W.2d 930 (Tex.Crim.App.1976); Boyd v. State, 419 S.W.2d 843 (Tex.Crim.App.1967). It was also proper for the trial court to charge the jury that a finding of either would be sufficient to convict.” Ortega v. State, 668 S.W.2d at 707.

In the instant case, the trial court properly charged the jury as to appellant’s intent to fraudulently obtain property, and not as to services. We find the evidence was sufficient to support the averments in the trial court’s charge. See Boozer v. State, — S.W.2d -, No. 402-82 (Tex.Crim.App., September 19, 1984) (Not yet reported). The second ground of error is overruled.

In her final ground of error, appellant complains that she was denied effective assistance of counsel at trial. In her brief, appellant points to several instances where trial counsel allegedly rendered ineffective assistance of counsel, although she does not contend that she was denied a fair trial.

The standard which we must apply to appellant’s ineffective assistance of counsel ground is whether or not her attorney rendered “reasonably effective assistance.” Ex parte Robinson, 639 S.W.2d 953 (Tex.Crim.App.1982); Passmore v. State, 617 S.W.2d 682 (Tex.Crim.App.1981). The adequacy of a counsel’s assistance must be gauged by the totality of the representation, and allegations of ineffective assistance of counsel will be sustained only if they aré firmly founded. Ferguson v. State, 639 S.W.2d 307 (Tex.Crim.App.1982); Johnson v. State, 614 S.W.2d 148 (Tex.Crim.App.1981). Due to the nature of the allegation, each case must turn on its own particular facts and circumstances. Mercado v. State, 615 S.W.2d 225 (Tex.Crim.App.1981).

We have carefully reviewed the entire record before us and find that counsel’s efforts on appellant’s behalf, while not errorless, were sufficient to constitute reasonably effective assistance at trial. See Ferguson v. State, 639 S.W.2d at 310. Appellant’s third ground of error is also overruled.

The judgment of the trial court is affirmed.

      . Emphasis supplied through opinion.

      . Rachel Soto, a salesperson at Montgomery Ward, testified that on July 28, 1983, she sold a lady’s gold watch to appellant. Soto also testified that because the watchband was too big for appellant she (Soto) "cut it down” twice for appellant. Arguably, the incidental labor performed by Soto amounted to a “service” under § 31.01(7)(A). However, there were no resultant charges made to the victim's account. We, therefore, hold that the mere adjustment of the watch purchased by appellant, without further proof, is insufficient to show such labor, or service, was the intended object of appellant’s desire. See Ortega v. State, 668 S.W.2d 701, 706 (Tex.Crim.App.1984) (opinion on motion for rehearing).

      . Appellant claims that, during cross-examination of Vernice Ramirez, her counsel introduced testimony of an alleged "extraneous offense,” and that counsel failed to request an instruction in the jury charge limiting the jury’s consideration of the alleged extraneous offense.