author: PER CURIAM.

text:
    Jose BUITUREIDA, Jr. and Enrique Buitureida, Jr., Appellants, v. STATE of Texas, Appellee.
    No. 13-81-240-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 29, 1984.

      Joseph A. Connors, III, McAllen, John Guerra, Edinburg, for appellants.
    Ted Campagnolo, Brownsville, for appel-lee.
   OPINION

PER CURIAM.

This is an appeal from the convictions of Jose Buitureida, Jr. (Jose) and Enrique Bui-tureida, Jr. (Enrique) for the offense of murder. Appellants were indicted in a single instrument and tried together for the murder of an individual known as “El Co-lumbiano.” Both pled not guilty. Appellants were represented at trial by separate attorneys. It was agreed at trial that objections made by Jose’s attorney were also made by Enrique’s attorney. Both appellants were found guilty by a jury, and their punishment was assessed by the jury at imprisonment for fifty years each. On February 2, 1982, the trial court granted appellant Enrique’s Motion for Leave to File an Out of Time Motion for New Trial. Appellant Jose’s corresponding motion was denied. All motions for new trial were subsequently denied, and this appeal was filed. We reverse.

On February 21, 1981, around 7:30 p.m., Alex Galvan, Javier Mendoza, and a man known as El Columbiano were on the front porch of Galvan’s home in Brownsville, Texas. At about that time, a beige-colored car drove by with two people inside. The same car had already driven past once or twice before. The car was moving slowly as it passed the house. Galvan recognized the occupants as being involved in a fight with him earlier and went up to the car and threw a brick at it. At that point, the passenger drew a pistol and fired in the direction of Galvan’s house. The car then speeded up and departed the area.

Two of the bullets hit the man known as El Columbiano; one striking him in the head, the other in the back. In court, Galvan identified Jose Buitureida, Jr. as the man who fired the gun from the car. He also identified Enrique Buitureida Jr. as the driver of the car. At trial, Mendoza identified Jose Buitureida Jr. as the person who fired the shots and Enrique Buitureida Jr. as being with him at the time. Mendoza also recognized appellants because they had beaten him and Galvan earlier that day. Both appellants presented alibi testimony.

On appeal, appellants are represented by separate attorneys. Three briefs are filed by appellants and one by the State. Appellants’ “First Brief of Appellant Enrique Buitureida, Jr.,” filed January 3, 1983, contains seven grounds of error and is filed by Ricardo Flores, Enrique Buitureida Jr.’s attorney from July 29, 1982 until December 30, 1982. On February 15, 1983, Mr. Joseph A. Connors, III, as attorney for Jose Buitureida, Jr. and Mr. John Guerra, as attorney for Enrique Buitureida, Jr., filed a single brief entitled “First Brief of Appellant Jose Buitureida, Jr. and Second Brief of Appellant Enrique Buitureida, Jr.” This brief contains ten grounds of error, some of which relate solely to Jose’s appeal, some of which relate to both appellants, and some of which appear to relate solely to Enrique. Some of the grounds presented in this brief raise the same grounds of error raised in Enrique’s first brief, only now, they are raised in regard to Jose. On August 15, 1983, appellants filed jointly a “First Supplemental Brief of Both Appellants.” In it are appellants’ eleventh through fifteenth grounds of error. These grounds relate to both appellants and presumably supplement appellants’ February 15, 1983 brief. Since all briefs are timely, we will address all grounds of error raised thereby. See Alfaro v. State, 638 S.W.2d 891 (Tex.Crim.App.1982).

Appellant Jose does not challenge the sufficiency of the evidence to support his conviction. Through his first ground of error, Jose contends that the trial court erred in not charging the jury on the mistaken identity feature of the evidence in this case. Both Galvan and Mendoza identified Jose as the person who fired the shots that killed El Columbiano. They also both placed Enrique, Jr. in the car from which the shots were fired. The evidence presented at trial does not raise the issue of mistaken identity. Even if it had been raised, the Court’s instructions on the presumption of innocence and the requirement that the jury find appellants guilty beyond a reasonable doubt or acquit them, adequately protected appellants’ rights. Wilson v. State, 581 S.W.2d 661 (Tex.Crim.App.1979) (Opinion on State’s Motion for Rehearing); See Hill v. State, 608 S.W.2d 932 (Tex.Crim.App.1980); and, Roy v. State, 627 S.W.2d 488 (Tex.App.—Houston [1st Dist.] 1981, no pet.). Appellant Jose’s first ground of error is overruled.

Appellants, in their separate second and third grounds of error, both allege that the trial court committed reversible error by denying appellants their right to propound questions during effective and full cross-examination when the trial court refused to allow appellants to place the credibility and persons of Alex Galvan and Javier Mendoza in the proper context by introducing before the jury the juvenile records of these witnesses. During trial, Alex Galvan was recalled by the defense and the following questions, objections and rulings were made on this issue:

Q Mr. Galvan, I’m going to ask you if at any time, as a result of proceedings against you, you have been convicted of a felony in this or in any other state or whether you have been, as a result of proceedings, confined to the — any juvenile correctional institute—
MR. JONES: Your Honor, may we approach the bench, again please?
THE COURT: Counsel, with regards to juvenile proceedings, as you know, they are not admissible, if any. [Emphasis added.]
MR. TOSCANO: My position, Your Honor, is that they are with regards to trying to place this young man in the proper context. [Emphasis added.]
* * * * * *
THE COURT: What is the purpose of asking about a juvenile proceeding, Counsel?
MR. TOSCANO: Yes, sir. Your Honor, we are not seeking to impeach this witness by the fact that he has been adjudicated a delinquent and has been ordered confined in the Texas Correctional Institute of Texas — for the purpose of impeachment, but he is a witness upon whose credibility this Jury must pass upon. He is a witness upon whose — how much weight they will give to his testimony. We want the Jury to understand that he is no alterboy. We want the Jury to understand what his background is, in order to intelligently reach a conclusion as to how much credence, how much weight, how much believability this young man, who has been incarcerated several times in his life as a result of several violations, serious of such a character that this Court or some other Court in Cameron County sent to the Texas Youth Correctional Institute.
THE COURT: That’s not admissible, Counsel.
MR. TOSCANO: We take the position that it is and we would certainly respect the Court’s ruling.
THE COURT: Unless the law has changed, Counsel, and you are prepared to convince me otherwise. If this young man has been found to be a child that is engaged in delinquent conduct and wherefore has been sent to the Texas Youth Council, that matter is not relevant for impeachment purposes and by statute. [Emphasis added.]
MR. TOSCANO: I’m not seeking to place him here for impeachment purposes. I think I made myself clear. I’m seeking to give this young man’s background to the Jury so that they may consider him in the proper context. [Emphasis added.]
THE COURT: Have you got authorities to support your position at this time?
MR. TOSCANO: Not at this time. I thought it was not necessary, sir, but I will if necessary.
THE COURT: What is the state’s position on the matter?
MR. JONES: He indicated he didn’t want to impeach the witness and then proceeded to give a very good definition of what we understand being impeachment. Number two, as the Court pointed out, the juvenile record is not admissible in Court. Even the State can’t elicit the Defense witness’s record. The juvenile record, of course, if any that this person has, is simply not admissible in front of this Jury for pus-poses [sic] of impeachment or as Counsel for Defense put it, putting it in proper context or whatever. [Emphasis added.] It’s not admissible and the Court is correct in that ruling. I don’t think that there are any cases to the contrary on that.
MR. TOSCANO: I don’t have the citation before me, Your Honor, but if the Court wants to take a recess for that purpose, we will.
THE COURT: Your theory is that if this man is in general a bad person or criminal person, that you want the Jury to know that. Is that right?
MR. TOSCANO: Yes, sir, and not only by whatever purpose, how he was placed in that position. Just like he would be entitled to come in say, “I am an alterboy at the Catholic Church”, so that the Jury could say, “Well, now this young man apparently is a Christian, raised up in the proper religious atmosphere and we are inclined to give him much more believability than we would, should the Court show us evidence that he is a delinquent and has been so adjudged and has been in the Texas Youth Council for commission of crimes of the character that will require the Court to so order that he be so detained.” [Emphasis added.]
THE COURT: I know of no authority to allow that, Counsel, so your objection — the objection is sustained.
THE COURT: Do you have any other questions of this young man?
MR. TOSCANO: Nothing further from this witness. I do state to the Court that we do have some authorities upon which this question has been asked in good faith and —but, right now I do not have them here and I will try to present them to the Court and we ask the Court to reconsider.
THE COURT: Well, after the noon hour, you do that.
MR. TOSCANO: Yes, sir. At this point in time I don’t want to belabor the point.
THE COURT: After the lunch hour you can bring some authorities to me and we will take a good look at them.
MR. TOSCANO: Yes, sir.
THE COURT: You may step down, Mr. Galvan.
(WITNESS STEPPED DOWN)
THE COURT: Call your next witness.
MR. TOSCANO: Your Honor, we may— may we complete our bill on this young man? May we complete it at this point in time?
THE COURT: Yes, sir.
MR. JONES: Due to the lateness of the hour we request that we move along with some more testimony.
MR. TOSCANO: We are going to recall the other juvenile for the same purpose and that’s the same ruling with the Court.
THE COURT: Well, Counsel, let’s move along with the case, then, before the case goes to the Jury.
MR. TOSCANO: May the record reflect that we would call Mr. Mendoza Menchaca, the juvenile? The same questions would be propounded to him and I assume the same objections would be made and the Court’s ruling and position would be the same?
THE COURT: Same objection would be made, Counsel?
MR. JONES: Oh yes, Your Honor.
THE COURT: That would be the same ruling.
MR. TOSCANO: Same ruling and our exception that we would wish to perfect our bill on that.
THE COURT: Yes, sir ... All right. Now, bring the Jury in.

Appellants, through their formal Bill of Exception No. 1, set forth that:

“On December 20, 1979, the Juvenile Court of Cameron County, Texas committed said Alex [Galvan] to the Texas Youth Council for delinquent conduct arising out of an assault on Oct. 25,1979. Alex was released on parole from the Texas Youth Council on Oct. 25, 1979. Alex did remain on said parole from the Texas Youth Council until Oct. 11, 1981, his 18th birthday.”

Also set forth in this Bill was the statement that:

“Attached hereto are true and correct summaries of the juvenile records of the Juvenile Probation Department of Cameron County, Texas, concerning Alex and Javier. Those exhibits are marked as Defense Appellate Exhibits 2 and 3 respectively, and they are incorporated herein for all purposes.”

These exhibits set forth numerous charges, and actions thereon, with regard to both Galvan and Mendoza. Galvan’s record designates an “ACTIVE” status, dated 10-26-79. Nowhere in the Bill is any reference, however, as to Mendoza’s status.

Appellants allege, through their Bill of Exception, that the trial court erred in excluding the above facts from the jury because such exclusion prevented the jury from being able to properly pass upon the credibility of the witnesses and to determine how much weight should be given the testimony. Appellants also, for the first time, specifically allege that the exclusion prevented appellants from “impeach[ing] each said witness, showing bias, motive and prejudice to assist the State in the above entitled case with their testimony so that they would not be revoked and lose their status as parolees of the Texas Youth Council.”

Before we can rule on the merits of these grounds of error, we must first determine if appellants properly preserved their alleged error. At trial, appellants’ counsel asked Galvan, a chief witness for the State, if he “had been convicted of a felony ... [or] confined to the — any juvenile correctional institute.” It appears that, at this point, counsel was cut off by an objection from the State. The trial court and counsel for the defendants and the State entered into a discussion in which both the court and the State remarked that juvenile proceedings were not admissible. The State’s objection was subsequently sustained.

While appellants’ counsel never specifically questioned Galvan as to whether he was on parole as a result of any criminal activity he might have committed as a juvenile, requiring such a question to be asked in order to preserve error was not necessary under the circumstances. Asking Gal-van if he had been placed upon parole for an offense, for which counsel was prevented by a court ruling from asking if Galvan had in fact committed, would be pointless. The trial court had already stated that juvenile proceedings were “not admissible.”

“The essential policy underlying the sixth amendment right to confrontation is to give the accused an opportunity to cross examine the witnesses against him.
$ * ⅜ Sfc ⅝ 9jC
Thus, extreme prejudice ensues from a denial of the opportunity to place a material witness in his proper setting as regards his testimony.
* * * * * *
Apparent then, is the fact that when the cross-examiner is improperly denied the opportunity to ask a question and receive the witnesses’ answer for consideration by the factfinder, he may concomitantly be denied the right to establish facts which would illustrate the true circumstances bearing on the issue by extrinsic proof.” [Emphasis added.]

Harris v. State, 642 S.W.2d 471 (Tex.Crim.App.1982); and authorities cited therein.

Here, counsel objected and stated, in essence, that he was inquiring into the witness’ past criminal record in order to place the witness in his “proper context.” We see little difference in the court in Harris, supra, allowing such questioning so that

the witness could be placed in her “proper setting.” As in Harris, without the testimony, the jury could not fairly apprise the weight and credibility it should place on the witnesses’ testimony. Also, as in Harris, “the jury had a right to observe [the witnesses] under questioning in this regard[,]” and, if necessary, the defense would have been entitled to establish those facts set forth in their Bill of Exception. See Harris, at 477. We hold that appellants’ objection properly places the issue of the admissibility of the juvenile record of Galvan and Mendoza before this Court.

We must now determine if appellants’ Bill of Exception is adequate.

The record reflects that appellants first gave notice of appeal on June 11,1981. On August 31, 1981, appellants filed their “First Motion for Extension of Time for Filing Bills of Exception,” this motion being granted the same day and extending time to file until October 19, 1981. An Order approving appellants’ Motion for Extension was entered on October 16, 1981. Thereafter, on October 19, 1981, appellants filed their Formal Bill of Exceptions No. 1-7. These bills were not approved, with the notation of “not within my knowledge” on February 8, 1982. No bystander’s Bills of Exception were filed.

Since appellants filed their motion for extension on August 31, 1981, we will apply those time restraints set forth in art. 40.09, Tex.Code Crim.Proc.Ann., prior to its revision effective September 1, 1981. This provides that:

“Bills of exception must be filed with the clerk and presented to the trial judge within ninety days after notice of appeal is given.... A bill of exception will be deemed approved without qualification if it be not acted upon by the trial judge within a period of 100 days after notice of appeal is given and no extension of time for filing has been granted; provided, however, if an extension of time for filing has been granted, a bill of exception will be deemed approved without qualification if it be not acted upon by the trial judge within a period of 10 days after the actual filing of the bill.” [Emphasis added.]

Appellants’ Bills of Exceptions number one through seven were timely filed, but were not timely ruled upon by the trial court. Since no action was taken upon appellants’ bills of exceptions within the time prescribed by art. 40.09, the bills are deemed approved without qualification. Herrin v. State, 525 S.W.2d 27 (Tex.Crim.App.1975); Damaris v. State, 363 S.W.2d 464 (Tex.Crim.App.1963). This remains true despite the trial judge’s late refusal of the bills. Lair v. State, 169 Tex.Cr.R. 220, 333 S.W.2d 389 (1960).

The approval of a bill of exception, without qualification, constitutes a certification by the trial court of the correctness of the language contained in the bill. Skinner v. State, 144 Tex.Cr.R. 21, 159 S.W.2d 878 (1942) (Opinion on Motion for Rehearing). However, if it is shown in another trial that the facts contained in the Bill of Exceptions are not true, our judgment will not be binding in the cause as to the issues raised therein. Damaris, supra, (Opinion on State’s Motion for Rehearing at 466.) We accept appellants’ bills as approved and proceed accordingly. While it is improper to impeach a witness by proof of a prior juvenile record, Barecky v. State, 639 S.W.2d 943 (Tex.Crim.App.1982), appellants relay on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), to support their contention that the trial court committed reversible error by refusing to admit the juvenile records of Galvan and Mendoza. In Davis, the Supreme Court stated:

“that the right to confrontation is paramount to the State’s policy of protecting a juvenile offender.”

Davis, 94 S.Ct. at 1112. “Davis does not require that we ignore the clear mandate of Article 38.29 in order to permit impeachment of general credibility.” Bilbrey v. State, 594 S.W.2d 754 (Tex.Crim.App.1980). See Thomas v. State, 578 S.W.2d 691 (Tex.Crim.App.1979); and, Warren v. State, 514 S.W.2d 458 (Tex.Crim.App.1974). However, the Court of Criminal Appeals recognized in Bilbrey, that the refusal to allow the cross-examination of a witness about a juvenile probation which had not expired, so as to show motive and bias because of possible pressure upon the witness by the prosecution, violated the accused’s right to confrontation.

We see little difference in the pressure that can be exerted by the State upon a witness placed upon juvenile parole rather than juvenile probation. “[A] parole ... is a release from imprisonment on specified conditions to be observed, the sentence remaining in effect during the liberty thus granted.” Ex parte Lefors, 165 Tex.Cr.R. 51, 303 S.W.2d 394 (1957); see Argon v. State, 123 Tex.Cr.R. 151, 58 S.W.2d 108 (1933). While no showing is made as to what conditions were placed upon Galvan’s parole, a parole by its very meaning implies that some sort of conditions exist. By prohibiting appellants their right to fully cross-examine Galvan as to his criminal record and to develop testimony as to his parole status, the trial court committed reversible error. However, while appellants preserved their right to develop the same type of testimony with regard to Mendoza, no showing was made from which the jury could infer the possibility of undue influence to be exerted by the State against Mendoza. Appellant’s second grounds of error are sustained, and their third grounds of error are overruled.

Jose’s fourth ground of error complains that the trial court erred by denying his requested charge at the punishment phase “that the jury not consider current events in trying to determine what is a just punishment in the case.” The record reflects that, during the course of this trial, an assassination attempt was made on the life of Pope John Paul II. It is with regard to this event that appellants’ requested charge relates.

Contained in the Court’s Charge at the guilt or innocence phase was the instruction that: “you must not consider, discuss, nor relate any matters not in evidence before you.” Contained in the Court’s Charge on Punishment, was the instruction: “Please remember all of the instructions the Court has previously given you and be governed thereby.” Appellants were adequately protected by these charges. No error was committed in refusing the requested charge. Appellant’s ground of error is overruled.

During the State’s closing final jury argument, the prosecutor stated: “You got a situation where the Defendants would not talk to the police. They didn’t want to talk to the police.” Appellants’ counsel objected. The objection was overruled, he then moved for a mistrial which was denied. The prosecutor later, in argument, stated: “if they [the appellants] have such a good reputation for being truthful and having a good reputation for truth and veracity, why not tell the police at the first opportunity.” Appellants’ counsel again objected and moved for a mistrial when the objection was overruled. The motion for mistrial was denied. Counsel again moved for a mistrial after the jury had retired. His motion was again denied.

Grounds of error five, six, seven, eight and nine, in the combined brief of appellants, complain that the prosecutor’s remarks amounted to reversible error and that the trial court erred in both overruling “appellant Jose’s objection^]” and denying his motions for mistrial, since the comments violated appellants’ rights and privileges against self-incrimination and to due process. While these grounds of error all speak only in terms of “appellant Jose’s” objections and motions, two of the grounds relate to the prosecutor’s comments as to Enrique’s not telling the police about his alibi. Again, we note that Enrique’s counsel had a standing objection with regard to everything to which Jose’s attorney objected. These grounds of error are all briefed together and speak in terms of harm to both appellants. Accordingly, we will treat these grounds of error as relating to both appellants. We point out, however, that these grounds of error illustrate the problem inherent in filing briefs of this nature. While we are able to determine here the error raised by the grounds presented, we could easily have concluded that these grounds related solely to one appellant and that nothing was preserved by the other appellant as to these alleged errors.

Following the objection to the prosecutor’s second comment on the appellant’s failure to provide the police with their alibis, the trial court admonished the jury to “judge the guilt or innocence of the defendants on the evidence you heard, not on the failure to tell the police or not tell the police anything. They do have a constitutional right to be silent. Do not draw any inferences of guilt from their failure to make statements.” The Court then instructed the prosecutor “to please do not comment or allude to the fact that defendants did not talk to the police at the time and allude or refer to an inference of guilt....”

The State contends that these admonishments and instructions coupled with the fact that appellants invited the prosecutor’s remarks render any error harmless. We cannot agree. Under Chapman v. United States, 547 F.2d 1240 (5th Cir.1977), cert. denied, 431 U.S. 908, 97 S.Ct. 1705, 52 L.Ed.2d 393 (1977), comments on a defendant’s post-arrest silence falls into three categories:

[1] When the prosecution uses defendant’s post-arrest silence to impeach an exculpatory story offered by defendant at trial and the prosecution directly links the implausibility of the exculpatory story to the defendant’s ostensibly inconsistent act of remaining silent, reversible error results even if the story is transparently frivolous.
[2] When the prosecutor does not directly tie the fact of defendant’s silence to his exculpatory story, i.e., when the prosecutor elicits that fact on direct examination and refrains from commenting on it or adverting to it again, and the jury is never told that such silence can be used for impeachment purposes, reversible error results if the exculpatory story is not totally implausible or the indicia of guilt not overwhelming.
[3] When there is but a single reference at trial to the fact of defendant’s silence, the reference is neither repeated nor linked with defendant’s exculpatory story, and the exculpatory story is transparently frivolous and evidence of guilt is otherwise overwhelming, the reference to defendant’s silence constitutes harmless error.

547 F.2d at 1249-1250 (citations and footnote omitted) 1; United States v. Meneses-Davila, 580 F.2d 888 (5th Cir.1978). “The infusion of ‘harmlessness’ into error must be the exception, and the doctrine must be sparingly employed. A miniscule error must coalesce with gargantuan guilt, even wfien the accused displays an imagination of Pantagruelian dimensions.” Chapman, at 1250.

Here, the comments must fall into the first category. Not only were they repeated, but they were directly tied to appellant’s alibi defense. There can be no question from the record before us that Enrique had no opportunity to make any comments amounting to pre-arrest silence, and, while Jose was not immediately placed under arrest, he was asked by the police to come to police headquarters and was not given a chance to make a statement until after he had been read his Miranda rights. It is also clear from the record that the remarks were not, in fact, invited. The defense of invited error is not open to the State since the prosecutor made the initial reference to the appellants’ silence. Meneses-Davila, supra at 896. Appellants’ testimony during examination did not invite the comment during closing argument.

The State’s comments on appellants’ post-arrest silence constitutes reversible error. See Williams v. State, 607 S.W.2d 577 (Tex.Crim.App.1980); Hawk v. State, 482 S.W.2d 183 (Tex.Crim.App.1972); Brown v. State, 101 Tex.Cr.R. 421, 275 S.W. 1069 (1925); Conway v. State, 625 S.W.2d 35 (Tex.App.—Eastland 1982, pet. ref’d). Furthermore, under the facts presented, we do not believe that the remarks were cured by the trial court’s subsequent admonishment and instruction. See Harrison v. State, 491 S.W.2d 920 (Tex.Crim.App.1973). Since the trial court improperly overruled appellants’ objections and since the harm was not subject to being cured, the trial court also erred in refusing to grant appellant’s motion for mistrial. Appellants’ fifth, sixth, seventh, eighth and ninth grounds of error are sustained.

In the tenth ground of error in appellants’ combined brief, appellants allege that the trial court committed error by denying appellants’ motion to discover appellant Enrique’s own oral statements. Appellants were attempting to discover an oral statement made by Enrique at the time of his .arrest. Officer Flores, of the Brownsville Police Department, testified that, “We went to his residence. We knocked on the door. As soon as we opened the door a man stepped out. We identified ourselves, we told him that and he identified himself as Mr. Enrique Buitu-reida Junior and we told him there was an outstanding warrant for him. At this time this gentleman turned around, placed his hands behind his back and said, 7 was waiting for you. ’” [Emphasis added.]

During the pre-trial hearing, the State denied that the statement was ever written down in a manner subject to discovery by appellants. Regardless of the character of statement, appellants were not entitled to discover a fact already known to them. Harris v. State, 453 S.W.2d 838 (Tex.Crim.App.1970). Appellants’ tenth ground of error is overruled.

Appellants, in their eleventh, twelfth, thirteenth, fourteenth and fifteenth grounds of error, complain that the trial court erred in the submission of a charge on alibi which they contend shifted the burden from the State to appellants. They also allege in these grounds of error that the trial court erroneously charged that the jury should find appellants not guilty if they have a reasonable doubt as to the presence of appellants at the place where the offense was committed, if one was committed. Appellants contend that the charge should have charged that appellants must prove their alibi defense by a preponderance of the evidence. That part of the court’s charge of which appellants now complain, reads:

“A defense raised by the Defendants in this case is what is known as an alibi, that is, that if the offense was committed, as alleged, the Defendants were, at the time of the commission thereof, at another and different place from that at which such offense was committed and, therefore, was not and could not have been the person who committed the same. Now if you have a reasonable doubt as to the presence of the Defend- ■ ants at the place where the offense was committed, if an offense was committed, at the time of the commission thereof, then you will find the Defendants not guilty.”

First, we note that the charge also instructed the jury that:

“The burden of proof in all criminal cases rests upon the State throughout the trial, and never shifts to the defendant. All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. If you have a reasonable doubt as to any element of the offense after considering all the evidence before you and these instructions, you will acquit the defendant.”

Appellants’ contentions have previously been considered and disposed of by the Court of Criminal Appeals. Swinney v. State, 529 S.W.2d 70 (Tex.Crim.App.1975); See Gallaher v. State, 28 Tex.Crim. 247, 12 S.W. 1087 (Court of Appeals 1889); Bautista v. State, 632 S.W.2d 846 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d). The charge given, in the case at bar, correctly charged the jury on the defense of alibi. Appellants’ eleventh through fifteenth grounds of error are overruled.

Appellant Enrique, in his first separate ground of error, contends that the trial court’s refusal to grant his Out-of-Time Motion for New Trial, upon the ground of newly discovered evidence, constituted an abuse of discretion. We disagree. A motion for new trial based upon newly discovered evidence is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a showing of clear abuse of discretion. Ayers v. State, 606 S.W.2d 936 (Tex.Crim.App.1980). To establish that such an abuse exists, the record must show that:

“(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant’s failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
[ (4) ] the new evidence is probably true and will probably bring about a different result on another trial.”

Ayers, at 941.

While the testimony offered at his motion for new trial is different from that offered at trial, this factor alone will not warrant the granting of a new trial. Here, Enrique contends, that after the trial, he discovered 1) that there were witnesses who would be willing to testify to the fact that he was not present at the time of the shooting (this would merely be cumulative of his alibi testimony); 2) appellant Jose Buitureida, Jr. was not totally truthful when discussing the case with his attorney (appellant has not established that this fact was either unavailable or not discovered due to lack of diligence); 3) that Enrique’s cousin Roberto Buitureida was the driver of the car in question (again appellant has not shown that this was not discoverable through the use of due diligence). The key witnesses at the hearing either testified at appellants’ trial or were not shown to be unavailable had they been called to testify. The testimony of appellant’s trial attorney on these matters is not determinative.

We have reviewed all the evidence presented by appellant at the hearing on his Out-of-Time Motion for New Trial and find that the trial court did not abuse its discretion in denying appellant’s motion for new trial. Enrique’s first ground of error is overruled.

Appellant Enrique’s fourth, fifth, sixth and seventh grounds of error attack the sufficiency of the evidence to support the conviction in that: 1) there is insufficient evidence to infer that Enrique should have anticipated Jose’s shooting of the victim; 2) that Enrique, acting with the intent to promote or assist the commission of the offense, solicited, encouraged, directed, aided or attempted to aid Jose in committing the offense; 3) that Enrique shot and killed the victim.

The court charged the jury on the law of parties. A person is criminally responsible for an offense committed by the conduct of another person if he acts with the intent to promote or assist the commission of the offense by soliciting, encouraging, directing, aiding, or attempting to aid the other person to commit the offense. Tex.Penal Code Ann. § 7.02 (Vernon 1974).

The testimony of Galvan and Mendoza place Enrique as the driver of the vehicle from which the victim was shot. The same car drove by the scene of the shooting as many as three times before Jose reached his arm out the window and shot the gun resulting in the death of the victim. On the final pass by the house, the vehicle was proceeding at a slow rate of speed. Following the shooting, the car speeded away. Galvan and Mendoza also testified that, earlier on the day of the shooting, Enrique had been involved in a fight with Galvan and Mendoza. There is also the testimony of the police officers to the effect that, when they approached Enrique to arrest him, he turned around, offered himself for handcuffing and stated, “I was waiting for you.” We find the evidence sufficient to support the conviction of Enrique as a party to the offense. His fourth through seventh grounds of error are overruled. See Flores v. State, 491 S.W.2d 144 (Tex.Crim.App.1973); Garza v. State, 149 Tex.Cr.R. 359, 194 S.W.2d 406 (1946).

We have considered all grounds of error raised by appellants through this appeal. Grounds of error two and three in both the First Brief of Appellant Enrique Buiturei-da, Jr. and the combined brief of appellants are sustained. Grounds of error five, six, seven, eight and nine of appellants’ combined brief are also sustained. All other grounds of error are overruled.

The judgment of the trial court is REVERSED and the cause REMANDED for a new trial.

      . 1965 Tex.Gen.Laws, ch. 722, p. 317, at 479. Effective September 1, 1981, this act was amended by 1981 Tex.Gen.Laws, ch. 291, § 108, p. 804.


source: Caselaw Access Project

license: Public Domain

text:
    Dr. Ward BROWN, Appellant, v. Stanley A. STARRETT, Jr., and Earl Peck, d/b/a Starrett Construction, Appellee.
    No. 13-83-409-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 29, 1984.

      Michael F. Archer, San Antonio, for appellant.
    E.R. Fleuriet, Harlingen, for appellee.
   OPINION

PER CURIAM.

This is a suit on sworn account. Starrett and Peck, d/b/a Starrett Construction Company (Starrett), brought suit against Dr. Ward Brown (Brown) to recover the balance on the cost of labor and materials, plus profit of 15% incurred by Starrett in remodeling Brown’s home. After hearing all of the evidence in the case, the trial court granted judgment in favor of Starrett on the sworn account. Special issues were submitted to the jury on Brown’s counterclaims for violation of the Deceptive Trade Practices Act and his affirmative defenses of failure of consideration, accord and satisfaction, attorney’s fees and appellees’ claim for prejudgment interest. The jury found that there had been no failure of consideration and found against Dr. Brown on his DTPA claim. Brown appeals only the actions of the trial court in granting judgment on Starrett’s sworn account and awarding the appellees 10% as prejudgment interest on the account.

Starrett’s First Amended Original Petition alleges that they entered into an oral contract with Brown whereby they agreed that Starrett would remodel and renovate Brown’s home. The agreement, according to Starrett, was that Brown was to pay the cost of labor and materials, plus 15% as profit on the job. Starrett claims that a systematic record was kept of the expenses incurred, and the amount owing was $7,002.86 as profit and $2,285.72 on unpaid invoices. Dr. Brown, in an unsworn First Amended Original Answer and Counterclaim, asserts that the amounts stated were not owing, that proper demand had not been made, that there was a failure of consideration and asserted claims under the Deceptive Trade Practices Act.

On appeal, Brown argues three points of error. He first claims that the trial court erred in rendering judgment for that portion of the contract specifically relating to the 15% profit and overhead because the contract in question was a “special contract” not properly the basis for a suit on sworn account.

A “special contract” is “one with peculiar provisions or stipulations not found in the ordinary contract relating to the same subject matter and such provisions are such as, if omitted from the ordinary contract, the law will never supply.” Eisenbeck v. Buttgen, 450 S.W.2d 696, 702 (Tex.Civ.App.—Dallas 1970, no writ). Transactions between parties resting on special contracts do not come within TEX. R.CIV.P. 185, except if the transaction in question is a transaction mentioned in the rule. Caro v. Haywood, 585 S.W.2d 354 (Tex.Civ.App.—Austin 1979, no writ); Hollingsworth v. Northwestern National Insurance Co., 522 S.W.2d 242 (Tex.Civ.App.—Texarkana 1975, no writ). Rule 185 specifically includes actions or defenses founded on “... any claim for a liquidated money demand based upon a written contract or founded upon business dealings between the parties.” Tex.R.Civ.P. 185.

In the case at bar, the petition alleges that the parties entered into a contract to repair and renovate appellant’s home. The agreement was that appellant would pay the cost of labor and materials utilized and 15% as profit. The 15% profit factor was an amount which could be readily ascertained from the invoices attached to appellees’ petition. Appellees’ petition also contained several ledger sheets which showed the amount of labor and materials expended on the job. At the end of the ledger sheet, the total amount expended on the job is listed. The ledger sheet shows how the 15% profit factor was derived. We need not reach the issue of whether the contract for 15% profit was a “special contract” because we find that the transaction in question was specifically within TEX.R. CIV.P. 185 because it was a liquidated claim founded upon business dealings between the parties. Appellant’s first point of error is overruled.

In appellant’s second point of error, he asserts that the trial court erred in rendering judgment for the appellee pursuant to TEX.R.CIV.P. 185 because that portion of the contract relating to the 15% profit and overhead factor was not properly framed in the pleadings to support a judgment.

TEX.R.CIV.P. 185, which was in effect on the date of trial, stated that a proper pleading based upon a sworn account:

... shall be taken as prima facie evidence thereof, unless the party resisting such claim shall, before an announcement of ready for trial in said cause, file a written denial, under oath, stating that each and every item is not just or true, or that some specified items are not just and true... , When the opposite party fails to file such affidavit, he shall not be permitted to deny the claim, or any item therein, as the case may be.

TEX.R.CIV.P. 93(k), which was in effect at the time the trial court granted judgment, provided, in part:

That an account which is the foundation of the plaintiff’s action, and supported by the affidavit, is not just, and in such case, the answer shall state that each and every item is not just or true, or that some specified items are not just and true.

The cases which have interpreted Rules 185 and 93(k) require strict adherence to the requirements of the rules. Edinburg Meat Products, Inc. v. Vernon Co., 535 S.W.2d 432 (Tex.Civ.App.—Corpus Christi 1976, no writ); Goodman v. Art Reproductions Corp., 502 S.W.2d 592 (Tex.Civ.App.—Dallas 1973, writ ref’d n.r.e.). A denial of a sworn account should strictly comply with the rules; otherwise, a defendant will not be permitted to deny appellees’ claim. See Crystal Investments v. Manges, 596 S.W.2d 853 (Tex.1980); Edinburg Meat Products Co. v. Vernon, 535 S.W.2d at 435. If a sworn denial is not in compli-anee with the rule, the sworn account is taken as prima facie evidence against a defendant, and the defendant may not dispute receipt of items or services or the correctness of the charges, although he may defend on other grounds. Rizk v. Financial Guardian Insurance Agency, 584 S.W.2d 860 (Tex.1979).

In our opinion, plaintiff’s sworn petition, which complied with Rule 185, established a prima facie case. Because Brown’s unsworn answer and counterclaim failed to properly deny the petition (see Rule 93[k]), he may not now dispute the correctness of the charges. The second point of error is overruled.

In appellant’s last point of error, he claims that the trial court erred in rendering judgment for Starrett for the loss of the use of funds at the rate of 10% per annum because the applicable rate of prejudgment interest on a sworn account is 6% when no specified rate of interest is agreed upon by the parties.

We agree with appellant that the applicable rate of interest on sworn accounts is 6% per annum. TEX.REV.CIV. STAT.ANN. art. 5069-1.03 (Vernon 1971). However, non-statutory interest has been allowed under the name of “damages,” measured by the legal rate of interest, and at other times has been allowed as damage under the equitable doctrine for use and detention of money. See Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978). The Phillips case has been interpreted to mean that it is within the trial court’s discretion to utilize the equitable theory when a statute clearly applies to provide for prejudgment interest. Larcon Petroleum, Inc. v. Autotronic Systems, Inc., 576 S.W.2d 873 (Tex.Civ.App.—Houston [14th Dist.] 1979). A prayer for interest provides fair notice of the claim for relief for prejudgment interest. Black Lake Pipe Line Co. v. Union Construction Co., Inc., 538 S.W.2d 80 (Tex.1976); Arndt v. National Supply Co., 633 S.W.2d 919 (Tex.App.—Houston [14th Dist.] 1982, writ ref'd n.r.e.).

In the case at bar, Starrett specifically pled that they had been damaged by lost interest on a liquidated sum which was determinable as of January 20, 1982. They claimed as damages 10% per annum from January 20, 1982 until the time of trial. No special exception was made to these pleadings by appellant in accordance with TEX.R.CIV.P. 90. During trial, Starrett testified that he was Chairman of Economic Development for the Harlingen Chamber of Commerce. He testified that he received a degree in Finance and was a stockbroker for four years. He claimed he was familiar with the workings of the financial community. He testified that, if he had the sum of money allegedly owed by Brown available to him, he could have gotten a minimum of 10% by investing it. The only objection made by appellant was that Star-rett had not shown himself to be an expert on what interest might be paid on funds. Thereafter, Starrett testified regarding his background in finance and prevalent interest rates. There were no further objections to his testimony.

The jury also found in answer to a special issue that 10% per annum was the percentage which would reasonably compensate Starrett as damages for the loss of the use of funds from January 20, 1982 until the present. Considering the entire record, we find that appellee properly pled and proved the award of prejudgment interest at the rate of 10% per annum. Appellant’s third point of error is overruled.

The judgment of the trial court is affirmed.

      . TEX.R.CIV.P. 185 was amended by the Legislature in 1983.

      . TEX.R.CIV.P. 93(k) was amended by the Legislature in 1983.


author: UTTER, Justice.

text:
    Robert J. GARZA, Appellant, v. CITY OF MISSION; City Council of the City of Mission; Fernando Ortegon, Individually and in his official capacity as Mayor, Leonel Olizarez, Individually and in his official capacity as Council Member, Manuel Delgado, Individually and in his official capacity as Council Member, Leonel Pena, Individually and in his official capacity as Council Member, Manuel De Leon, Individually and in his official capacity as Council Member, and Benito Lopez, Individually and in his official capacity as City Manager, Appellees.
    No. 13-84-303-CV.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 29, 1984.
    Rehearing Denied Jan. 3, 1985.

      George M. Kirk, Jr., Houston, Roberto Garcia, Garcia, Lopez & Rodriguez, Edin-burg, for appellant.

      Larry Watts, Houston, Hollis Rankin, Jr., McAllen, for appellees.
    Before UTTER, KENNEDY and KEITH, JJ.
   OPINION

UTTER, Justice.

This is an accelerated appeal pursuant to TEX.CIY. 885 from an order denying appellant’s application for temporary injunction. This appeal from an interlocutory order is expressly authorized by TEX.REV.CIV. STAT.ANN. art 4662 (Vernon Supp.1984). We affirm the judgment of the trial court.

On June 5, 1984, appellant, former Chief of Police of the City of Mission, initially filed suit against appellees, who allegedly had violated appellant’s rights under TEX. REV.CIV.STAT.ANN. art 6252-16a (Vernon Supp.1984). Article 6252-16a, an act relating to the protection of public employees who report a violation of law, provides:

Retaliation prohibited
Sec. 2. A state or local governmental body may not suspend or terminate the employment of, or otherwise discriminate against, a public employee who reports a violation of law to an appropriate law enforcement authority if the employee report is made in good faith.

In his petition, appellant alleged that his employment as Chief of Police of the City of Mission had been terminated by appel-lees in retaliation for appellant having initiated and conducted, in the good faith exercise of his lawful duties as Chief of Police, an internal investigation regarding allegations of criminal wrongdoing by a police officer employed by the City of Mission. Appellant further alleged (1) that he referred the results of the internal investigation to the District Attorney of Hidalgo County for possible criminal indictment by the Grand Jury of Hidalgo County and (2) that appellees had knowledge of the investigation.

Also, on June 5, 1984, appellant filed Plaintiff’s Application For Preliminary Injunction, alleging (1) that appellees had terminated appellant’s employment as Chief of Police in violation of Article 6252-16a, “which statute provides specially for injunc-tive relief in a controversy as is presented in the case at bar,” and (2) that appellant “had no adequate remedy at law and irreparable damage to the Plaintiff will occur if he is not reinstated to his position pending resolution of this case.” In said application, appellant prayed “specially for reinstatement to his position as Chief of Police of the City of Mission.” Following an extensive hearing, the trial court denied appellant’s application for temporary injunction. No findings of fact or conclusions of law were requested or filed.

Appellant had been the Chief of Police for the City of Mission from 1978 until March 29, 1984, when his employment with the City of Mission was terminated by Benito Lopez, who was then the acting City Manager. Prior to his termination, appellant became aware of alleged felonious wrongdoings of Officer George Rangel and, subsequently, in December or January, 1984, assigned Detective John Mohring to investigate the allegations. In September 1983, prior to the assignment of Mohr-ing, appellant had visited the then acting City Manager, Jose Rolando Gonzalez, regarding other alleged wrongdoings (including certain internal affairs violations) by Rangel. After his assignment, Mohring accumulated evidence against Rangel and, sometime in February, 1984, presented his case against Rangel to Mark Alexander, Assistant District Attorney for Hidalgo County.

On March 21, 1984, Alexander issued a subpoena requiring Lopez, the acting City Manager who succeeded Gonzalez on February 16, 1984, to produce certain personnel and payroll records on Rangel. Mohr-ing and Sergeant L.B. Garza served the subpoena on Lopez that same day. The records were delivered to the District Attorney’s office approximately one week later.

On March 26, 1984, an executive session meeting of the City Council was held, at which time the status of the Police Department was discussed. At that meeting, the City Council decided (1) that an impartial agency would be requested to conduct an “investigation” of the Police Department’s operations and (2) that no action regarding appellant’s employment would be taken until after the investigation. The next day after the meeting, City Manager Lopez requested the services of the Texas Commission on Law Enforcement Standards and Education (“TCLEOSE”) to conduct such an investigation of the Police Department; however, TCLEOSE informed Lopez that such a request would have to be made by appellant, the acting Chief of Police, and that, following such a request, the agency would not be able to conduct such an investigation for approximately eight to ten months.

On March 28, 1984, Lopez received a petition signed by twelve officers, including Rangel, Flores and Benavides, threatening to resign on March 30, 1984, unless affirmative action was taken towards dismissing or reassigning appellant. Later that evening at City Secretary Criselda Briones’ home, Briones and Dr. Fernando Ortegon, the Mayor of the City of Mission, discussed the threatened resignations. From Briones’ home, Mayor Ortegon telephoned Flores, who, accompanied by Benavides, went to Briones’ home to discuss the threatened resignations. At the end of his “visit” to Briones’ home, Mayor Ortegon telephoned Lopez, the acting City Manager, concerning the threatened resignations. During their phone conversation, Lopez advised Mayor Ortegon that he was considering terminating appellant, and Mayor Or-tegon expressed his agreement with Lopez. Later that evening about 9:30 p.m., City Manager Lopez called appellant to inform him to be in Lopez’s office on the following morning because Lopez “had some matters” to discuss with appellant.

At approximately 10:00 a.m. on the morning of March 29, 1984, after Lopez had consulted with his attorneys and after appellant and his attorney had arrived at Lopez’s office, Lopez terminated appellant’s employment as Police Chief of the City of Mission because appellant had given the City of Mission a “lot of bad publicity.”

In his first point of error, appellant alleges that the trial court erred in denying appellant the benefit of the statutory re-buttable presumption set forth in Article 6252-16a § 3(b). Section 3(b) provides:

(b) a public employee who sues under this section has the burden of proof, but it is a rebuttable presumption that the employee was suspended or terminated for reporting a violation of law if the employee is suspended or terminated not later than the 90th day after making a report in good faith.

Appellant urges that the effect of the above statutory rebuttable presumption, which he allegedly established by prima facie evidence, is similar to the “almost conclusive” effect of child legitimacy and ceremonial marriage validity presumptions and that, accordingly, appellees had to “go forward with certain definite, reliable and convincing evidence” in order to satisfy their burden of persuasion in rebutting such presumption. Appellant alleges that, under his theory of the “almost conclusive” effect of such presumption, appellees’ evidence was not sufficient to discharge such burden of persuasion.

We disagree with appellant as to the legal effect of the statutory rebuttable presumption. We do not believe that this statutory presumption is entitled to the “almost conclusive” effect as that granted in child legitimacy and ceremonial marriage situations. We believe that strong social policy considerations, such as are present in those situations, are not present in this case; therefore, an “almost conclusive” effect, requiring appellees to “go forward with certain definite, reliable and convincing evidence” in order to rebut the statutory presumption, should not be applied here. We hold that the rebuttable presumption set forth in Article 6252-16a § 3(b), if established by prima facie evidence, is an “ordinary” rebuttable presumption, which does not shift the burden of proof. It is the type of rebuttable presumption which can stand only in the absence of evidence to the contrary. See Texas Water Rights Commission v. Wright, 464 S.W.2d 642 (Tex.1971). Once sufficient evidence is produced to support a finding of the non-existence of the presumed fact, the case will then proceed as if no presumption ever existed. See Allred v. Harris County Child Welfare Unit, 615 S.W.2d 803 (Tex.Civ.App.—Houston [1st Dist.], 1980, writ ref'd n.r.e.). An “ordinary” rebuttable presumption does not have the effect of shifting the burden of proof; and, when rebut-table evidence is introduced, the presumption vanishes; the facts that give rise to the presumption remain for the jury’s consideration even though the presumption has vanished. See Pete v. Stevens, 582 S.W.2d 892 (Tex.Civ.App.—San Antonio, 1979, writ ref’d n.r.e.). As set forth below, appellee introduced sufficient evidence to rebut such presumption. Appellant’s first point of error is overruled.

In his second point of error, appellant alleges that the trial court abused its discretion in denying appellant’s application for temporary injunction. At the hearing, appellant testified (1) that he, as Chief of Police, initiated and conducted the investigation in good faith, (2) that he had regular conversations with the Assistant District Attorney assigned to that case after the investigation was initiated and before his termination, (3) that he had informed the City Manager regarding the investigation and the basic circumstances of the allegations against Rangel and (4) that he thinks he was fired because he ordered the investigation and reported two felony complaints against Rangel.

Detective Mohring testified (1) that, after his assignment to the investigation of the allegations against Rangel, he contacted Alexander and supplied Alexander with documentation regarding the allegations against Rangel, (2) that, approximately six weeks before appellant was fired, he hand-carried to City Manager Gonzalez’ office a letter from appellant, who told Mohring that the letter concerned problems with Rangel and requested that Rangel be terminated, and (3) that he believed Rangel was being protected by the city administration.

Mark Alexander, the Assistant District Attorney assigned to the case involving the allegations of felony wrongdoings by Ran-gel, testified (1) that, after being approached by Mohring in February, 1984, Mohring presented the case to him and (2) that the only information given by appellant was after appellant’s termination.

City Manager Lopez testified (1) that, regarding the subpoena which he received, he had “no knowledge” — “absolutely no idea what the nature of the request was, absolutely none” and that he found out that Rangel was being investigated for something or other, at the time he was served with the subpoena, (2) that, during the Spring of 1984, he did not know of any investigation that was conducted regarding allegations of criminal wrongdoing by Ran-gel, (3) that appellant was not terminated as Chief of Police because he submitted any reports to the District Attorney’s office “on any subject, George Rangel, or anything else,” (4) that it was the threat of the resignations of the twelve officers that forced him to fire appellant because the threatened resignations “presented a genuine crisis, or potential crisis, for the citizens of the City of Mission,” he “did not feel like gambling with the public safety” and he “thought termination was the thing to do at the time” and (5) that he did not receive any order or instruction to terminate appellant’s employment.

Lieutenant Flores, who succeeded appellant as Chief of Police for a brief time, testified (1) that he had nothing to do with the decision to fire appellant, (2) that, prior to appellant’s termination, there had been rumors that an officer was being investigated and that the case might be going before the Grand Jury, (3) that, at City Secretary Briones’ home on the evening of March 28, 1984, Briones and Ortegon were present and that, even though they discussed the reasons for the petition, they did not discuss any strategy for firing appellant and (4) that he, as acting Chief of Police, suspended Mohring for disregarding a direct order.

Police Lieutenant Connie Garza, the supervisor of Detective Mohring during the time of the investigation, testified (1) that, to her knowledge, no complaint had been filed charging a felony against Rangel, although Mohring had told her that he was investigating felony allegations against Rangel and (2) that she did not know that appellant had submitted any report to the District Attorney’s office alleging any criminal wrongdoing of Rangel.

Briones, the City Secretary, testified (1) that, at her home on the evening of March 28, 1984, during their discussions, she and Mayor Ortegon neither mentioned appellant’s name nor discussed the suggestion that appellant be fired or anything about a report or investigation by Mohring of Ran-gel, (2) that she was not aware of (a) any felony allegations against any officer, (b) any investigation against Rangel by Mohr-ing or (c) any reports filed by appellant or Mohring in the District Attorney’s office and (3) that she was not aware of any specific reason why appellant was fired.

Gonzalez, the former City Manager, testified (1) that appellant had not told him that Rangel was suspected or accused of having committed a felony and (2) that appellant was never the target of any member of the City Council or Mayor for retaliatory termination.

Mayor Ortegon testified (1) that, he considered the threatened resignations as “some sort of emergency for the City” “that could present a problem,” (2) that, from the Briones’ home on March 28, 1984, he called the two officers (Flores and Bena-vides) to ask how serious the situation was, (3) that he later telephoned Lopez to express his concern about the threatened resignations and told Lopez that “the threat of resignation was real, and it was an emergency” but did not tell Lopez to fire appellant, (4) that he had never instructed, directed, ordered or suggested that appellant be terminated as Chief of Police because he had submitted a report of alleged criminal wrongdoing to any appropriate law enforcement agency, (5) that he had never acted to protect Rangel from having appellant discipline him and (6) that, regarding appellant’s employment, he had nothing to do with hiring and firing; notifying the City Manager that the threatened resignations was a serious situation was as far as he could go.”

The only other witness, who testified at the hearing, was Police Sergeant Roberto Rivera, who was the acting Chief of Police at the time of the hearing and whose testimony was cumulative.

In his second point of error, appellant claims that, based upon the evidence presented at the hearing, the trial court abused its discretion by denying appellant’s application for temporary injunction.

At a hearing upon a request for a temporary injunction, the only question before the trial court is whether the applicant is entitled to preservation of the status quo of the subject matter of the suit pending trial on the merits. Davis v. Huey, 571 S.W.2d 859 (Tex.1978); Ogden v. Coleman, 660 S.W.2d 578 (Tex.App.—Corpus Christi 1983, no writ). To prevail on an application for temporary injunction, an applicant need only plead a cause of action and show a probable right on final trial to the relief he seeks and probable injury in the interim. Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968); Ogden v. Coleman, 660 S.W.2d at p. 582; Diesel Injection Sales and Service v. Gonzalez, 631 S.W.2d 193 (Tex.App.—Corpus Christi 1982, no writ).

In reviewing an order granting or denying a temporary injunction, appellate review is strictly limited to a determination of whether there has been a clear abuse of discretion by the trial court in granting or denying the interlocutory order. Davis v. Huey, 571 S.W.2d at p. 862; Ogden v. Coleman, 660 S.W.2d at p. 581; Diesel Injection Sales and Service v. Gonzalez, 631 S.W.2d at p. 194; Powers v. Lynn, 523 S.W.2d 271 (Tex.Civ.App.—Corpus Christi 1975, writ ref’d n.r.e.). Appellate courts will not assume that the evidence heard at a preliminary hearing will be the same as the evidence developed at a full trial on the merits, thereby precluding an effective premature review of the merits and an effective denial of the applicant’s right to a trial by jury. Davis v. Huey, 571 S.W.2d at p. 862. In determining whether the trial court abused its discretion in granting or denying a temporary injunction, an appellate court may not substitute its judgment for that of the trial court. Id., at p. 862. In determining whether there has been an abuse of discretion, an appellate court is required to view the evidence in the light most favorable to the action of the trial court and indulge all reasonable presumptions in support of the trial court’s judgment. Parks v. U.S. Home Corporation, 652 S.W.2d 479 (Tex.App.—Houston [1st District] 1983, writ dismissed); Ogden v. Coleman, 660 S.W.2d at pp. 581-582; Diesel Injection Sales and Service v. Gonzalez, 631 S.W.2d at p. 195; Hartwell’s Office World, Inc. v. Systex Corporation, 598 S.W.2d 636 (Tex.Civ.App.-Houston [14th District] 1980, writ ref’d n.r.e.).

A trial court is clothed with broad discretion in determining whether to grant or deny an application for temporary injunction to preserve the rights of the parties pending a final trial of the case on its merits. When that discretion is exercised, it should not be overturned on appeal unless the record discloses a clear abuse of discretion. Ogden v. Coleman, 660 S.W.2d at p. 582; Home Savings Association v. Ramirez, 600 S.W.2d 911 (Tex.Civ.App.-Corpus Christi 1980, writ ref’d n.r.e.). An abuse of discretion does not exist when the trial court bases its decision on conflicting evidence. Davis v. Huey, 571 S.W.2d at p. 862; Zmotony v. Phillips, 529 S.W.2d 760 (Tex.1975); Powers v. Lynn, 523 S.W.2d at p. 274. Furthermore, where no findings of facts or conclusions of law are requested or filed, the trial court’s judgment must be upheld on any legal theory supported by the record. Davis v. Huey, 571 S.W.2d at p. 862; Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968).

After reviewing the entire record and in light of the conflicting evidence and the lack of findings of fact and conclusions of law, we find that the trial court did not abuse its discretion in denying appellant’s Application for Temporary Injunction.

Additionally, the trial court did not err in denying the appellant’s application for temporary injunction because a temporary injunction would have, in effect, given appellant a substantial portion of the ultimate relief, which he sought. Ordinarily, a trial court should not issue a temporary injunction if the applicant would thereby obtain substantially all the relief which is properly obtainable in a final hearing. See Dallas Independent School District v. Daniel, 323 S.W.2d 639 (Tex.Civ.App.—Dallas 1959, writ ref’d n.r.e.). “It is error for a trial court to grant a temporary injunction, the effect of which would be to accomplish the object of the suit. To do so would be to determine rights without a trial.” Id., at p. 641, quoting Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (Tex.1952). Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.


author: J. CURTISS BROWN, Chief Justice.

text:
    Anthony Levi TODD, Appellant, v. Morgan Sykes CARTWRIGHT, III, Appellee.
    No. A14-84-214-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.

      Don T. Schwartz, Schwartz, Kalinowaki & Hartfiel, Houston, for appellant.
    Mark A. Sanders, Tudzin, Tobor & Alt-schil, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is a will contest. The court below imposed a constructive trust on one-half of the estate of Ruth Aline Cartwright. Its judgment was based on a jury finding that her 1977 will was contractual with that of her then husband. Appellant contends in two points of error that there was no evidence to support the jury finding of a contractual will. We affirm.

Appellant is Ruth Aline Cartwright’s son by her first marriage. Appellee is the son of Morgan Sykes Cartwright, Jr., by his first marriage. Ruth and Morgan Jr. were married in 1951.

Ruth Cartwright’s estate consists primarily of the proceeds from the sale of a ranch in Montgomery County, Texas. The ranch, less 50 acres, had passed to her under the 1977 will of Morgan Jr., who died in 1978.

Many years earlier, when Morgan Jr. had first inherited the land from Morgan Sykes Cartwright, Sr., the Cartwright family discussed its eventual disposition on several occasions. The family understanding reached at these discussions, at which both Morgan Jr. and appellee were present, was that the property would eventually go to appellee. Morgan Sr. had not directly given the land to appellee, it was concluded, because although Morgan Sr., and not Morgan Jr., had raised appellee, Morgan Sr. had never formally adopted him.

Three months apart in 1977, Ruth and Morgan, Jr. both executed wills. The same lawyer prepared both wills and the same witnesses attested them. Morgan Jr.’s will states the following:

“I give, devise and bequeath the residue of my estate, whether real, personal, or mixed and wherever situated, but excluding property over which I may have a power of appointment, to my beloved wife, Ruth Aline Cartwright. If my wife shall have predeceased me, then I give, devise and bequeath the residue of my estate, whether real, personal, or mixed, and wherever situated, but excluding property over which I may have power of appointment, to my children, Morgan Sykes Cartwright, III and Anthony Levi Todd, share and share alike...
“All references in this Will to my child or children include the above-named child and stepchild and it is my intention that Anthony Levi Todd be considered the same as if he were my natural child.”

Ruth Cartwright’s will states the following:

“I give, devise and bequeath all of my estate, whether separate or community, real, personal, or mixed and wherever situated, but excluding property over which I may have a power of appointment, to my beloved husband, Morgan Sykes Cartwright, Jr. If my husband shall have predeceased me, then I give, devise and bequeath all of my estate, whether separate or community, real, personal, or mixed, and wherever situated, but excluding property over which I may have a power of appointment, to my children, Anthony Levi Todd and Morgan Sykes Cartwright, III, share and share alike...
“All references in this Will to my child or children include the above named child and stepchild and it is my intention that Morgan Sykes Cartwright III be considered the same as if he were my natural child.”

Following Morgan, Jr.’s death, Ruth executed a total of three wills. In the first, dated October 2, 1978, and in the second, dated November 1980, she preserved the structure of the 1977 will in which appellant and appellee were to share equally in her estate. In her last will, dated August 10, 1982, no gift to appellee appears. Instead her estate is left to appellant and to a male friend of Mrs. Cartwright’s. Ruth died four and one-half months after executing the 1982 will.

In his first point of error appellant claims that the trial court erred in overruling his motion for judgment notwithstanding the verdict because there was no evidence in support of the finding of a contractual will. A “no evidence” point is a question of law and a jury verdict must be sustained if supported by more than a scintilla of evidence. Gulf, Colorado & Santa Fe Ry. Co. v. Deen, 158 Tex. 456, 312 S.W.2d 933, 937 (1958); Burney v. Ibarra, 415 S.W.2d 517, 519-20 (Tex.Civ.App.—San Antonio 1967, writ ref’d n.r.e.).

While it is true that courts in Texas and elsewhere have traditionally viewed claims of contractual will with caution, the rule in Texas appears to be that proof of contractual or “mutual” wills is sufficient if the terms of the contract essential to recovery are supported by proof sufficiently clear for the court to determine what those terms are without resort to inference or conjecture. Kirk v. Beard, 162 Tex. 144, 345 S.W.2d 267, 272 (1961). As to the types of evidence admissible to prove contractual wills, the Supreme Court, in Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 167 (1946) stated the following:

“Proof may be made by the provisions of the will[s] itself or by competent witnesses who testify to the agreement; and evidence as to the declarations of the promissor, relations or conduct of the parties and other facts and circumstances, that tend to prove that an agreement was made ...” Id. 193 S.W.2d at 167.

We find ample support in the record for the jury finding of contractual wills. The provisions of the wills themselves clearly indicate “the terms of the contract essential to recovery.” The wills are identical in form and substance, with the one necessary exception that Morgan, Jr.’s will separately disposed of 50 acres of the Montgomery County property. The wills employ a deliberate identity of wording, especially regarding the sons, both of whom are called the “children” of each testator. They were prepared by the same lawyer, at nearly the same time, before the same witnesses. Indeed, a codicil modifying Morgan Jr.’s will was prepared at the same time as Ruth's will. The two wills should therefore be regarded as having been executed simultaneously, since under Texas law Morgan Jr.’s will speaks from the date of the codicil. Reynolds v. Park, 521 S.W.2d 300, 308 (Tex.Civ.App.—Amarillo 1975, writ ref’d n.r.e.).

It has been held that a similarity in the wording of wills and the fact of execution at the same time and place and before the same witnesses are facts which may be considered along with other evidence in determining whether or not the wills were executed pursuant to an agreement. Pullen v. Russ, 226 S.W.2d 876, 879 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n.r.e.). The wills further conform to the theory of an agreement in that they provide for an equal distribution naming the lineal descendants of both sides of the family. This manner of distribution, occurring in a case involving bequests to a couple’s children by prior marriages, was expressly held to be an indication of an agreement in Trlica v. Bunch, 642 S.W.2d 540, 543 (Tex.Civ.App.—Dallas 1982, no writ).

We observe that in this case the testators exchanged one set of family relations for an entirely new one by virtue of these wills. Two sons by previous marriages, neither of whom was adopted or raised by the opposite testator, are each made the “child” of that testator, both by the express wording of the wills and by the equal distribution of the Montgomery County acres. Thus whereas before, the natural child of each testator would stand to inherit only lineally, under the wills they both inherit directly from the combined estate remaining to the surviving testator.

We think that these facts afford proof beyond a scintilla that the testators executed the wills pursuant to an agreement. To hold otherwise would require us to make the unlikely assertion that the similarity of the wills, their simultaneous execution, the exact equality in the distribution of the testators’ property, and the change in the manner by which the sons would inherit, happened by accident and signify no clearly defined purpose. We believe instead that given these will provisions and the circumstances of their execution, it is at least doubtful whether wills like these could have been made without agreement that they should be so made. See Odeneal v. Van Horn, 678 S.W.2d 941 (1984) (per curiam); Nye v. Bradford, supra, 193 S.W.2d at 168.

If this were not enough, appellee also introduced the testimony of a competent witness, Pat Schuler, who stated that Morgan, Jr. had declared to her that the purpose of the two wills was to distribute his property to the two sons after he and Ruth had died. Ruth made no attempt to deny this understanding in this conversation. The combination of will provisions and pa-rol testimony, both supporting the theory of an agreement, was held sufficient to prove a will contractual in Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165 (1946) and in Pullen v. Russ, 226 S.W.2d 876 (Tex.Civ.App.—Port Worth 1950, writ ref'd n.r.e.).

Magids v. American Title Ins. Co., Miami, Fla., 473 S.W.2d 460 (Tex.1971), cited by appellant, is inapplicable to this case. The wills in Magids failed to make any mention of community property, and since it was community property which was the subject of the dispute, the wills failed to evidence an agreement. Here the Montgomery County land, inherited by Morgan, Jr. from his father, was separate property fully covered by his will. In Magids, as in Kastrin v. Janke, 432 S.W.2d 539 (Tex.Civ.App.—El Paso 1968, writ ref'd n.r.e.), also cited by appellant, the parol testimony negated, rather than confirmed, the existence of a binding agreement. Here the opposite is true. We think the Nye and Pullen cases are controlling here. Accordingly, appellant’s first point of error is overruled.

Appellant’s second point of error attempts to raise a factual sufficiency point, but on its face complains of the trial court’s overruling his motion for judgment notwithstanding the verdict. It can therefore raise nothing more than the “no evidence” point treated above. Maxie v. Maxie, 635 S.W.2d 175, 177 (Tex.App.—Houston, [1st Dist.] 1982, writ dism’d). Although it is not necessary to our holding, we can also say that the evidence introduced by appellee would be sufficient to support the verdict under a factual sufficiency standard as well. This conclusion is supported by the Nye and Pullen cases cited above, which declared that the evidence was sufficient to establish the wills before them as contractual “clearly” and “conclusively,” respectively. See Nye v. Bradford, 193 S.W.2d at 168, and Pullen v. Russ, 226 S.W.2d at 880. Appellant’s second point of error is overruled.

The judgment of the trial court is affirmed.

      . The issues presented by this case only pertain to wills executed before September 1, 1979. Wills executed on or after that date must expressly recite that a contract exists in order to be held contractual. TEX.PROB.CODE ANN. § 59A (Vernon 1979); Wiemers v. Wiemers, 663 S.W.2d 355 (Tex.1984).


author: CANNON, Justice.

text:
    Cyril J. SMITH, Jr., Appellant, v. Barbara Smith CHRISTLEY, Appellee.
    No. A14-84-375CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 29, 1984.

      Don M. Kennedy, Ladin, Engel, Kennedy & Margolin, Houston, for appellant.
    Ben H. Schleider, Jr., Schleider & Francis, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is an appeal from a summary judgment in a probate case. Appellant, Cyril J. Smith, Jr., argues that: the trial court erred in finding him disqualified to serve as independent executor of the estate of his father, Cyril J. Smith, Sr.; the trial court erred in appointing his sister, Appellee, Barbara Smith Christley, as independent executrix of the estate; and the trial court abused its discretion in denying Appellant’s motion for continuance. We affirm.

Cyril J. Smith, Sr., died testate on October 22,1982. His will, dated June 10,1980, named Appellant as independent executor and Appellee as alternate independent executrix. Appellee filed an application to have the June 10th will admitted to probate and have herself named as independent executrix of the estate of her father. Appellant also filed an application to have the will and a later codicil admitted to probate. Appellant sought to be named independent executor of the estate. Christley opposed admitting the codicil to probate and contested Appellant’s suitability to serve as executor.

Appellant, on November 11, 1983, was convicted of possession of a controlled substance and was sentenced to seven years in the penitentiary. Appellant is currently appealing that conviction.

On February 3, 1984, Appellee filed a motion for summary judgment in the probate court. In that motion, Christley sought to have the will admitted to probate; the codicil denied probate; Appellant disqualified to serve as executor due to the felony conviction; and herself named as independent executrix. In response to the motion, Appellant argued that he was not disqualified to serve as executor, his sister was not a suitable person to be independent executrix, and requested the court grant a continuance so that he could take Christ-ley’s deposition. On April 13, 1984, the probate court granted Appellee’s motion for summary judgment. Appellant has properly and timely perfected his appeal in this court.

In point of error one, Appellant argues that the trial court erred in granting the summary judgment because he was not disqualified to serve as executor of the estate unless and until his appeal from the felony conviction was acted upon. Section 78 of the Probate Code provides in part:

No person is qualified to serve as an executor or administrator who is:
(c) A convicted felon, under the laws either of the United States or of any state or territory of the United States, or of the District of Columbia, unless such person has been duly pardoned, or his civil rights restored, in accordance with law ....

TEX.PROB. CODE ANN. § 78(c) (Vernon 1980).

Relying on a line of Texas criminal cases, Appellant argues that one is not a “convicted felon” or “convicted of a felony,” if an appeal from the conviction is pending. See Baker v. State, 520 S.W.2d 782 (Tex.Crim.App.1975); Carter v. State, 510 S.W.2d 323 (Tex.Crim.App.1974). Those cases did not involve interpretation of the term “convicted felon” in relation to a person’s qualification to serve as executor of an estate.

We believe that in determining whether a person is disqualified to serve as independent executor under § 78(c) of the Probate Code, the term “convicted felon” should include those persons convicted of a felony and sentenced by the district court regardless of whether the conviction is still pending appeal. By its very nature, the position of independent executor is not subject to extensive court supervision. The interests of the creditors of the estate, beneficiaries, and other third parties could be adversely affected if a person convicted of a felony were to serve as independent executor. The entire system of efficient settlement and distribution of decedents’ estates could be jeopardized.

In addition, we believe that another section of the Probate Code supports this conclusion. An independent executor may be removed from that position when he is sentenced to the penitentiary. TEX.PROB. CODE ANN. § 149C(a)(5) (Vernon 1980). It would be illogical to say that a person appealing a felony conviction could be named independent executor but then removed because he or she had been sentenced to the penitentiary. Although Appellant’s sentence has been suspended by the filing of an appeal bond, to name a person convicted of a felony as executor and then to remove that person if the appeal is unsuccessful would promote confusion and inefficiency in the administration of estates.

Appellant argues that this construction of the term “convicted felon” violates his constitutional rights to due process of law in two respects. Contrary to his assertions, we do not believe that this decision has deprived Appellant of his right to appeal from his conviction. Also, even if we assume that Appellant’s right to serve as independent executor is a constitutionally protected property right, Appellant has received procedural due process in that he was given a hearing in the probate court on his qualification to serve.

We hold that “convicted felon,” as it is used in Probate Code § 78(c), includes a person who is appealing from a felony conviction. The trial court did not err in finding Appellant was disqualified to serve as independent executor. Point of error one is overruled.

The second point of error is that the trial court erred in granting summary judgment naming Christley as independent executrix because genuine issues of material fact were raised as to her suitability to serve. In a related argument, Appellant asserts that the trial court erred in overruling his motion for continuance so that Christley’s deposition could be taken.

In order to raise fact issues on Christley’s suitability to serve as independent executrix, Appellant relies on his affidavit attached to the response to the motion for summary judgment. Affidavits in opposition to a motion for summary judgment must be made on personal knowledge and must set forth facts which would be admissible into evidence. TEX.R.CIV.P. 166-A(e). Mere conclusions of an affiant, without some supporting facts, are not sufficient to raise fact issues necessary to defeat a motion for summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111 (Tex.1984). The statements upon which Appellant relies are mere conclusions and were not sufficient to raise a fact issue as to Christley’s suitability to serve as independent executrix. Point of error two is overruled.

The granting or denial of a motion for a continuance rests within the sound discretion of the trial judge and the denial of such a motion will be reversed only upon a showing that the trial court has committed a clear abuse of discretion. Gendebien v. Gendebien, 668 S.W.2d 905 (Tex.App.—Houston [14th Dist.] 1984, no writ). Appellant has failed to make such a showing. There had been sufficient time prior to the time the motion for summary judgment was filed for Appellant to take Christley’s deposition. There is nothing in the record to show that, prior to the time the motion for summary judgment was filed, Appellee had attempted to avoid any discovery proceedings. Appellant’s motion for continuance does not state that due diligence was used to procure Christley’s deposition or that the continuance was not sought for delay only. The estate had been pending for well over a year when the motion was heard. In these circumstances, we cannot say that the Appellant has shown that the trial court abused its discretion in failing to grant the motion for continuance. Point of error three is overruled.

The judgment is affirmed.


author: NYE, Chief Justice.

text:
    Shannon Kelley CLARK and Marjorie G. Hugo, Appellants, v. Martha LEWIS, Appellee.
    No. 13-84-136-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 6, 1984.

      S. Reese Rozzell, Rockport, for appellants.
    Lola L. Bonner, Rockport, for appellee.
    Before NYE, C.J., and KENNEDY and SEERDEN, JJ.
   OPINION

NYE, Chief Justice.

This is an appeal from a judgment awarding appellee a judgment for debt, plus attorney’s fees and a take nothing judgment on appellants’ counterclaim for slander of title.

Appellee, Martha Lewis, a real estate agent in Aransas County, filed suit against appellants, Shannon Kelley Clark and Marjorie G. Hugo, for foreclosure of a mechanics and materialman’s lien or, alternatively, for debt to recover money she had expended while occupying appellants’ home. She abandoned the claim on the lien prior to trial.

The relationship between the parties arose in April or May 1981 when appellee asked to rent appellant’s home in Rockport, Texas during a period of time in the summer of 1981. Appellants were then on an extended stay in California. Appellee was aware that the appellants’ home was unoccupied because she worked for the real estate company that had listed the house for sale. Appellants agreed to allow the appellee to move in, but the specifics of their agreement are in dispute. Both parties agree that appellee was supposed to pay appellants’ mortgage payment while she occupied the home. Appellee testified that she occupied the home for only one month. Appellant Shannon Clark testified that Lewis agreed to pay the mortgage payments and utilities for the months of June and July. However, an excerpt from a letter written by appellant Clark to appel-lee on May 6, 1981, suggested the following arrangement:

We were pleased to hear from you today. Thank you for calling us. As we told you in our discussion, it will be satisfactory with us, if the house has not been sold by then, for you to occupy our home at 1818 Bayshore Drive, Key Allegro, during the latter part of June or during July and you will pay the June or July installments on our loan with Mrs. Leona Webster as well as all the utilities while you are there.” (Emphasis ours.)

The trial court, in findings of fact and conclusions of law, found that the appellee had paid both the June and July mortgage payments and that the June payment was expended at the specific request of the appellants with the understanding that she would be reimbursed by the defendants.

Appellee also claimed that she paid a painting charge of $400.00 for which she had been reimbursed only to the extent of $200.00, a $28.00 charge to have the air conditioning system inspected, and $68.00 for the June utility bill. Appellants claim that they offered to reimburse appellee for the amount expended for painting and the bill for the air conditioning inspection, but not the mortgage payment for June or the June utility bill. The trial court found that the appellee was justly entitled to the entire $619.00 for which she sued. The court further found that the appellee did not slander the appellants’ title to their property.

Appellants assert three points of error on appeal. All are directed to their counterclaim for slander of title. They argue that the trial court’s finding that the appel-lee did not slander the title of appellants’ property was against the great weight and sufficiency of the evidence, that the trial court’s finding that appellants did not sustain actual damages as a result of the filing of the lien was against the great weight of the evidence, and that the trial court’s finding that the appellee did not act willfully, maliciously or in bad faith when she filed a mechanic’s and materialman’s lien against the appellants’ real property was against the great weight of the evidence. In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App.—Corpus Christi 1981, writ ref’d n.r. e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L. Rev. 361 (1960).

In order for a party to recover in an action for slander of title, he must allege and prove: 1) the utterings and publishing of disparaging words; 2) that they were false; 3) that they were malicious; 4) that he sustained special damages thereby; and 5) that the plaintiff possessed an estate or interest in the property disparaged. American National Bank & Trust Co. v. First Wisconsin Mortgage Trust, 577 S.W.2d 312 (Tex.Civ.App.—Beaumont 1979, writ ref'd n.r.e.). It is also the rule in Texas in such cases that the plaintiff must plead and prove the loss of a specific sale. Ellis v. Waldrop, 656 S.W.2d 902 (Tex.1983); A.H. Belo Corp. v. Sanders, 632 S.W.2d 145 (Tex.1982).

Appellants argue that the trial court’s finding that appellee did not act willfully or maliciously was against the great weight and preponderance of the evidence. Malice as a basis for recovery of actual damages means that the act/or refusal was deliberate conduct without reasonable cause. Kidd v. Hoggett, 331 S.W.2d 515 (Tex.Civ.App.—San Antonio 1959, writ ref'd n.r.e.). Malice as a basis of punitive damages is described as actual malice, ill will, bad or evil motive, or such gross indifference to or reckless disregard of the rights of others to amount to a willful or wanton act. Kidd v. Hoggett, 331 S.W.2d at 518; Wheelock v. Batte, 225 S.W.2d 591 (Tex.Civ.App.—Austin 1949, writ ref’d n.r.e.). Here, appellee testified that she went to a person named “Jim Anderson” to seek advice on how she could recover funds she felt were owed to her. The evidence showed that appellee was an experienced realtor who knew that, by filing a lien, it would affect the title of appellants’ residence. There was evidence, however, that appellee abandoned her lien claim prior to trial. Appellants assert that appellee abandoned her cause of action for foreclosure of the lien because she had no standing to perfect the lien under the statute. Appellee’s explanation and the trial court’s finding was that the required notice of the lien had not been filed by appellee. There was evidence supporting both parties’ contentions. However, we cannot say that the finding of the trial judge that appellee was not acting maliciously was against the great weight and preponderance of the evidence.

Appellants claimed that the trial court’s finding that they had suffered no actual damage was against the great weight and preponderance of the evidence. Appellants suggest that the $1,200.00 bond they were required to post constituted actual damage to them. Appellants also asserted that they were forced to expend attorney’s fees as a result of appellee’s lien claim. It appears to us that, at most, appellants lost the use and benefit of the $1,200.00 for the period of time that the money was in escrow. The cost of attorney’s fees may not be considered actual damage because they are not recoverable in a slander of title action. Storm Associates, Inc. v. Texaco, Inc., 645 S.W.2d 579 (Tex.App.—San Antonio 1982, no writ); Ryan v. Mo-Mac Properties, Inc., 644 S.W.2d 791 (Tex.App.—Corpus Christi 1982, writ ref’d n.r.e.); American National Bank v. First Wisconsin Mortgage Trust, 511 S.W.2d at 319; contra Walker v. Ruggles, 540 S.W.2d 470 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ). In a slander of title action, the plaintiff’s only damages are special damages in the form of pecuniary losses. Louis v. Blalock, 543 S.W.2d 715 (Tex.Civ.App.—Amarillo 1976, writ ref’d n.r.e.). We find that even if the trial court erred in finding that the appellants sustained no actual damage by depositing $1,200.00 to bond around the lien, such error is harmless in view of the fact that the trial court also found that the appellee had not acted with malice which is an essential element in a slander of title action.

It is the general rule in Texas that an essential element to recovery under a slander of title theory is a loss of a specific sale. Ellis v. Waldrop, 656 S.W.2d 903 (Tex.1983); Belo Corp. v. Sanders, 632 S.W.2d 145 (Tex.1982). Both of the parties agree that, in this case, there was no loss of a specific sale. However, appellants argue that the lien was filed with the intent to frustrate the sale of appellants’ home or to harass them into paying the claim and, as such, should be an exception to the general rule. We disagree. Appellants have given us no reason or authority to deviate from the general rule in this case. Appellants’ points of error are overruled.

The judgment of the trial court is affirmed.

      . Overruled on other grounds in A.H. Belo Corp. v. Sanders, 632 S.W.2d 145 (Tex.1982).