text:
    Joseph Francis KEEGAN, Jr., Appellant, v. The STATE of Texas, Appellee. David SANTIAGO, Appellant, v. The STATE of Texas, Appellee.
    No. B14-83-530CR, C14-83-531-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.

      Bobbi L. Blackwell, Mark Atkinson, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

This is a consolidated appeal from two judgments of conviction for the offense of murder. In a joint trial, the jury found appellants, Joseph Francis Keegan, Jr., and David Santiago, guilty and assessed punishment for appellants at nineteen years confinement in the Texas Department of Corrections and a $5,000 fine. Appellant Keegan raises six grounds of error and appellant Santiago raises three grounds of error. We affirm both judgments.

Appellants’ first three grounds of error are identical. Their first ground of error alleges that the trial court erred in allowing the prosecutor to introduce testimony concerning fingerprint identification of the deceased because the prosecutor violated the trial court’s pre-trial discovery order requiring the prosecutor to provide any such evidence to appellants’ attorneys at least ten days prior to trial. In a second ground of error, appellants assert that the trial court erred in allowing the prosecutor to introduce bullets recovered from the body of the deceased, again in violation of the trial court’s pre-trial discovery order. As their third and last common ground of error, appellants assert that the trial court committed reversible error in admitting testimony concerning the bullets recovered from the body of the decedent since the prosecutor violated the trial court’s pre-trial discovery order by not providing the appellants’ attorneys with any such evidence at least ten days prior to trial. Appellant Keegan’s fourth ground of error claims that the trial court erred in failing to allow appellant Keegan to cross-examine a State’s witness in violation of appellant’s Sixth Amendment right of confrontation. In his fifth ground of error, appellant Kee-gan argues that the trial court committed reversible error in limiting appellant’s ability to show the violent character of the deceased since there was evidence before the jury of some act of aggression by the deceased. In appellant Keegan’s last ground of error, he claims that the trial court erred in failing to grant appellant’s request for an accomplice witness charge.

The State’s first witness, William Kas-bohm, testified that appellant Keegan told him that his .22 caliber pistol was stolen by a person named Glen and that he was going to get it back. Three or four days later, on the day of the killing, September 7, 1982, Keegan and Santiago picked up Kasbohm in the company truck and dropped him off at a business which Santiago was supposed to be guarding that night. Keegan told Kasbohm that Santiago and he were going to get the pistol back from Glen. The next day, Kasbohm testified, appellant Keegan told him that Santiago and he picked up Glen and took him along his work route. Appellant Keegan transported guard dogs for a kennel. When they arrived at the Black Brollier Cement Company, one of the kennel’s clients, all three men got out of the truck. Keegan told Kasbohm that appellant Santiago walked behind Glen and hit him over the head with a pipe. Glen fell to the ground. Appellant Keegan then took the .22 caliber pistol from Glen and shot him twice in the head and once in the heart. Appellant Kee-gan told Kasbohm that the body was hidden in a culvert at the Black Brollier and the pistol was thrown into the Houston Ship Channel.

Wyndon Guy, part owner of the kennels which employed Keegan, testified that appellant Keegan told him that appellant Santiago, a security guard, and Keegan planned to take the man who they believed to have stolen Keegan’s pistol on Keegan’s work routes to “take care of him” at the Black Brollier. A week later Keegan told Guy that the gun theft had been taken care of and the evidence destroyed. Later Guy went to look for a lost dog at the Black Brollier Cement Company, and found a badly decomposed body in a culvert. Fearing what Keegan might do to him, Guy waited two weeks before reporting it to the police.

Another State’s witness, James Widner, testified that he worked at the kennel in September, 1982, and was a partner with Keegan in the security dog business. Wid-ner recalled seeing Keegan with a .22 caliber pistol and later Keegan told him that Glen had stolen the pistol. The day after the killing, Widner testified that Keegan came by his house and told him that Santiago and he had taken care of Glen. Keegan told Widner that Santiago and he had convinced Glen to go along with them to the Black Brollier to investigate an alleged break in at that location. Upon arriving, Keegan and Santiago acted as if the burglary was still in progress. Santiago took a steel bar and Keegan took a shotgun from the truck. Keegan told Widner that all three men began to walk toward the Black Brollier building with Glen leading the way. Santiago struck Glen over the head with the steel bar. Keegan said that he went over to Glen, who lay on the ground, took the .22 caliber pistol from Glen, and shot him three times. After hearing Keegan’s news, Widner told Kee-gan that he did not want to hear any more and walked with Keegan to the truck which was parked outside. Widner saw blood and two shovels in the bed of the truck. Wid-ner testified that Keegan told him that they tried to bury Glen’s body but the ground was too hard, so they put his body in the truck and drove to a culvert where they put the body. Keegan also told Wid-ner that hollow point bullets were used. Widner also testified that after the killing he talked to Santiago and told him that Keegan told him about the killing. Santiago admitted to Widner that he hit Glen over the head with a steel bar and was present when Keegan shot him. He told Widner that the killing had been easy.

Testimony established that the body was so badly decomposed that it was unidentifiable. Two fingerprint examiners testified that the fingerprints of the deceased matched those of Glen Cavanaugh. A firearms examiner from the Houston Police Department testified that the three bullets removed from the deceased’s body were .22 caliber and that at least one bullet was a hollow point.

Both appellants testified on their own behalf. Appellant Keegan, in his testimony, asserts that the killing of Cavanaugh was in self defense. Keegan stated that Cavanaugh wished to burglarize the Black Brollier. Cavanaugh pulled a pistol on Keegan. A struggle ensued and the pistol was knocked to the ground. As Cava-naugh reached for a shotgun in the truck and came at him with it, Keegan shot him. Keegan stated that he later returned to the kennel and related the events of the shooting to Widner and Guy who told him to hide the body. Keegan testified that Guy and Widner returned with him to hide the body and dispose of the gun. Appellant Santiago testified that he was working at his assigned job as a security guard at the time of the murder and was not present at the Black Brollier Cement Company.

In both appellants’ first three grounds of error, they complain that the trial court erred in allowing the admission into evidence of fingerprint identification testimony, ballistic testimony, and the actual slugs recovered from the deceased’s body. They claim that the evidence is inadmissible because the prosecutor failed to comply with the trial court’s pre-trial order to provide appellants’ attorneys with such evidence at least ten days prior to trial.

When the three .22 caliber bullets removed from the decedent’s body were introduced into evidence, appellants objected on the grounds that the slugs had not been “turned over” to appellants in accordance with the court order. The trial court stated that its order required the State to only inform appellants of the evidence in the State’s possession and to allow appellants to examine it. The prosecutor informed the court that the bullets were listed in an autopsy report, a copy of which appellants had received, and that no tests had been performed on the bullets. The court denied a request to declare a mistrial so that the attorneys could prepare the case. The court offered a continuance, which was not accepted, to have appellants’ expert examine the bullets and fingerprints.

Appellants objected to the admission of any evidence of fingerprints since the fingerprints were not made available to appellants prior to trial. The objection was overruled and Susan Fuller, a Houston Police Department fingerprint examiner, identified the fingerprints taken from the decedent as those of Glen Cavanaugh. Fuller’s identification, as well as an identification by a second Houston Police Department examiner, went without objection.

Appellants also objected to the testimony of C.E. Anderson, a Houston Police Department firearms examiner. Again, appellants based their objection on the fact that they had not been allowed to discover such evidence prior to trial. The objection was overruled and the witness identified the bullets, based on a visual inspection from the witness stand, as .22 caliber and he testified that the bullets had been fired.

The State must disclose all exculpatory evidence to the accused. Brady v, Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court should allow discovery only if the evidence is “material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.” Tex.Code Crim.Proc. art. 39.14. Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence. Bates v. State, 587 S.W.2d 121 (Tex.Crim.App.1979); Hollowell v. State, 571 S.W.2d 179 (Tex.Crim.App.1978). A prosecutor’s failure to comply with a discovery order, however, may constitute harmless error. Hollowell, 571 S.W.2d 179; Neal v. State, 626 S.W.2d 879 (Tex.App.-San Antonio 1981, pet. ref’d). The standard to be applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony may have had an effect on the outcome of the trial. Saunders v. State, 572 S.W.2d 944 (Tex.Crim.App.1978), citing Smith v. State, 516 S.W.2d 415 (Tex.Crim.App.1974); Crutcher v. State, 481 S.W.2d 113 (Tex.Crim.App.1972). Error is committed only if after a review of the whole record the undisclosed evidence creates a reasonable doubt that did not otherwise exist. Whitchurch v. State, 650 S.W.2d 422 (Tex.Crim.App.1983). The elements which would establish a potential effect on the trial outcome are: (1) suppression of evidence after a request by the defense; (2) the evidence was favorable to the defense; (3) the evidence was material. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Ransonette v. State, 550 S.W.2d 36 (Tex.Crim.App.1976). We find that appellants did not establish that the violation of the trial court’s order affected the outcome of their trial. The evidence was not favorable or material to the defense. Appellants have never contested the identity of the decedent. Appellant Keegan testified that he shot the decedent several times with a .22 caliber pistol and that the body was put in a culvert, where it was later found. Appellant Kee-gan alleged self defense and appellant Santiago tried to establish an alibi, but Santiago’s participation in the murder was proven through statements by both appellants to several witnesses. We have reviewed the entire record and find that the testimony concerning the .22 caliber bullets and the fingerprint identification of the deceased were not of such a nature that if it had been made available to appellants prior to trial it would have created a reasonable doubt that did not otherwise exist. Discovery and inspection of the fingerprints, of the bullets, and of the ballistics expert’s testimony would not have affected their defenses or the outcome of the trial. We overrule grounds of error one, two, and three.

In appellant Keegan’s fourth ground of error, he asserts that the trial court erred in not permitting him to cross-examine James Widner, a State’s witness, violating his Sixth Amendment right of confrontation. When Widner was first questioned by the police he denied knowledge of the Cavanaugh murder case. Later Widner was charged and arrested upon complaint by James Kasbohm, with the offense of retaliation. While in jail on the retaliation charge Widner gave a written statement to police about both appellants’ involvement in the Cavanaugh murder. He was later released from jail on what appellant Keegan claims is a “very low pre-trial bond.” The State elicited testimony from Widner about the retaliation charges. The court, after a hearing outside the jury’s presence, would not allow defense' counsels to cross-examine Widner about the facts of the retaliation charge because the court determined that Widner would consistently invoke his Fifth Amendment rights of self-incrimination.

The scope of cross-examination is within the control of the trial judge in the exercise of his sound discretion. Saunders v. State, 572 S.W.2d 944 (Tex.Crim.App.1978); Toler v. State, 546 S.W.2d 290 (Tex.Crim.App.1977); Richardson v. State, 508 S.W.2d 380 (Tex.Crim.App.1974). In light of the fact that James Kasbohm, the complaining witness, testified as to the retaliation charge and the prosecutor testified to any arrangements the State made with Widner, in exchange for his testimony as a State’s witness, we hold that the trial judge did not abuse his discretion.

In his fifth ground of error, appellant Keegan argues that the trial court erred in limiting appellant’s ability to show the violent character of the decedent since there was evidence before the jury of some act of aggression by the deceased. The trial court did not allow testimony concerning specific acts of misconduct by the deceased. Appellant Keegan’s attorney in a bill of exception showed that the witness Frank Wells, a friend of the deceased’s since grade school, had known the deceased to steal and to burglarize, both done to support a drug habit. Wells testified, out of the jury’s presence, that he knew of the deceased’s criminal record. Wells recalled that the record involved all auto theft offenses. Wells stated that he knew that the deceased had engaged in violent conduct. However, the only instance of violent conduct recounted by Wells was a pistol whipping which Wells did not personally witness.

The defense may offer testimony as to any specific act of violence or misconduct which evidences the violent character of the deceased under the following conditions ....
[I]f offered for the purpose of showing the deceased was in fact the aggressor (not that the defendant thought the deceased was making or about to make an attack) the witness must know but it need not be shown that appellant had knowledge of the acts of violence of the deceased at the. time of the homicide.
Before any evidence of the deceased’s character for violence becomes admissible, however, there must be evidence of some act of aggression by the deceased which the character tends to explain (such as drawing a gun or reaching for a pocket where one is usually carried).

Limon v. State, 632 S.W.2d 812 (Tex.App.-Houston [14th Dist.] 1982, pet. ref’d), quoting Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875 (1954). In the instant case, appellant Keegan testified that the decedent pulled a pistol on him and that after the pistol was knocked from his hand the decedent reached for a shotgun in appellant Keegan’s truck. Evidence of the deceased’s violent character would be admissible. However, Wells did not actually see the specific act. A witness may assert the existence of a fact if his knowledge of that fact was gained through personal observation and reasonable inferences from that observation. Wilson v. State, 605 S.W.2d 284 (Tex.Crim.App.1980). Wells’ knowledge was not through personal observation. Rather, it was from the victim of the pistol whipping. Appellant’s fifth ground of error is overruled.

Appellant Keegan in his sixth ground of error claims that the trial court committed reversible error in failing to grant appellant’s request for an accomplice witness charge over appellant’s timely objection. In Day v. State, 532 S.W.2d 302 (Tex.Crim.App.1975), the court held that if the evidence raises an issue and the charge is properly requested, the trial court must submit the issue to the jury. In our case, however, the evidence did not raise an accomplice issue. Appellant Keegan’s attorney requested a charge on accomplice witnesses. Appellant’s attorney was specifically concerned with appellant’s testimony that Widner and Guy helped hide the decedent’s body. Even if Keegan’s testimony were true, we find a charge on accomplices would not be necessary. Although the 1974 Penal Code abolished the traditional distinction between accomplices and principals, it does specify that “a person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.” Tex.Penal Code Ann. § 7.01(a) (Vernon 1974). If Widner and Guy had helped appellant Keegan hide a body, they would not be considered a party to the offense of murder. Widner and Guy did not help plan or execute the murder. In fact these two witnesses were not at the scene during the murder. Appellant Keegan’s last ground of error is overruled.

Accordingly, we affirm the judgments of the trial court.


source: Caselaw Access Project

author: SEARS, Justice.

license: Public Domain

text:
    Freddie Paul HOLMES, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-780CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.

      Wendell Odom, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL and SEARS, JJ„ and T. GILBERT SHARPE, J. (Retired).
   OPINION

SEARS, Justice.

This is an appeal from a jury conviction for possession of a controlled substance (methamphetamine). Upon a finding of true by the jury to enhancement allegations in the indictment, Appellant was sentenced to life in the Texas Department of Corrections pursuant to TEX.PENAL CODE ANN. § 12.42(d) (Vernon Supp. 1984). Appellant asserts the trial court erred in admitting into evidence altered penitentiary packets during the punishment stage of trial. Appellant also challenges the sufficiency of evidence presented to the jury during the punishment stage on grounds that the State failed to prove, as required under the habitual offender statute, that the second prior offense alleged in the enhancement was committed after the first prior conviction became final. We find no error and affirm.

During the punishment stage of the trial the State introduced four penitentiary packets from the Texas Department of Corrections (State’s Exhibits 5-8). Each packet contained a custodial attestation and certification cover page and numerous judgments and sentences against Appellant. Appellant objected to Exhibit 5 on grounds that the packet contained a judgment and sentence not reflected within those cause numbers listed on the certification page. The certification page listed as one of the judgments contained within the packet Cause No. 83742, while the actual judgment in the packet was No. 83752. The State proceeded to “white-out” the erroneous cause number on the certification page and excise the mismatched judgment from the packet. Appellant then objected to the packet on grounds that the packet was no longer self-authenticating under TEX.REV. CIV.STAT.ANN. art. 3731a (Vernon Supp. 1984).

Appellant objected to Exhibits 6 and 7 on grounds that the judgments contained the words “Burglary, Second Offender” when in fact Appellant was convicted of “Burglary.” The State “whited-out” the “Second Offender” language and again Appellant objected to the admissibility of altered self-authenticating documents. All three exhibits were admitted over Appellant’s objections.

In his first ground of error Appellant asserts the trial court erred in admitting into evidence the altered penitentiary packets that in part formed the basis for a finding of true to the enhancement count.

Appellant cites no authority for his proposition that objectionable portions of documents properly authenticated under art. 3731a may not be excised from an exhibit. Accordingly, we need not consider the ground of error. North Harris County Junior College Dist. v. Fleetwood Construction Co., 604 S.W.2d 247 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ ref’d n.r.e.). However, we note that there is authority for admitting into evidence only part of a writing. TEX.CODE CRIM.PROC.ANN. art. 38.24 (Vernon 1979); Harrington v. State, 547 S.W.2d 616 (Tex.Crim.App.1977). In addition, the specific judgments to which Appellant objected were not the two prior convictions alleged in the enhancement. The inconsistencies to which Appellant objected were technical defects and as such were insufficient to render the packets inadmissible. Brewer v. State, 500 S.W.2d 149 (Tex.Crim.App.1973). The first ground of error is overruled.

In his second ground of error Appellant challenges the sufficiency of evidence presented to the jury on the enhancement. He alleges the State failed to meet its burden of proving a final conviction in the first prior offense before the second prior offense was committed as required under the habitual offender statute. TEX.PENAL CODE ANN. § 12.42(d) (Vernon Supp.1984).

The trial court admitted into evidence both the penitentiary packets containing the judgments and the indictments for the two prior felony convictions cited in the enhancement. State’s Exhibit 5 contained a judgment and sentence on June 12, 1958, in Cause No. 83751 for felony theft. This conviction was used by the State as the first prior felony offense in the enhancement. State’s Exhibit 8 contained a judgment and sentence on February 26,1971, in Cause No. 155,557 for possession of heroin. This conviction was used by the State as the second prior felony offense alleged in the enhancement. The State also introduced the indictment for this offense which was filed October 14, 1970. The statute of limitations requires that an indictment for the possession of heroin be filed within three years of the commission of the crime. TEX.CODE CRIM.PROC.ANN. art. 12.-01(4) (Vernon 1977). The State relied on the statute of limitations to prove that since the indictment for the second prior felony was filed on October 14, 1970, the second prior felony offense must itself have been committed on or after October 14, 1967, i.e. after the first prior felony became final on June 12, 1958, thus meeting its burden of proof under the habitual offender statute.

Appellant argues, however, that because the jury was not instructed on the statute of limitations, the evidence was insufficient for the jury to find that the first prior felony conviction was final before the second prior felony was committed.

This issue was addressed in Klasing v. State, 662 S.W.2d 789 (Tex.App.-Corpus Christi 1983, pet. ref’d). In a fact pattern similar to Appellant’s, the court held the requirements of § 12.42(d) were met by presuming the seeond prior felony conviction was committed after the first became final as evidenced by the indictment for the seeond prior offense. Id. at 793. Thus, the jury instruction was not necessary. The second ground of error is overruled.

The judgment is affirmed.


author: DRAUGHN, Justice.

text:
    Jesse Ralph GOMEZ, Appellant, v. The STATE of Texas, Appellee.
    Nos. A14-84-115-CR, B14-84-116CR, C14-84-117CR and A14-84-118CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 18, 1984.

      J. Ronald Vercher, Houston, for appellant.
    Calvin A. Hartmann, Houston, for appel-lee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Appellant Jesse Ralph Gomez pled guilty in four cases involving one count of aggravated robbery and three counts of attempted capital murder. After a pre-sentence investigation, the trial court assessed punishment at fifty years. Mr. Gomez appeals on three grounds of error: (1) that he received ineffective assistance of counsel because his attorney allegedly advised him that he would receive a maximum seven-year sentence upon a guilty plea, (2) that his attorney also incorrectly advised him that he was eligible for probation, and (3) that the trial court erred in refusing to allow him to withdraw his guilty plea at the punishment hearing. We overrule all three grounds of error and affirm the judgment of the trial court.

After the appellant pled guilty, the trial judge admonished him as to the effect of his pleas, admitted stipulation of evidence and judicial confession forms, and adjudged appellant guilty of the four offenses. The court then took the matter under advisement, ordered a pre-sentence investigation, and set a date for sentencing. At the punishment hearing, appellant complained that he was coerced into participating in the offenses by his brother who died in a shootout with police during commission of the crimes. Appellant requested that his guilty plea be withdrawn, but the court denied his motion and assessed punishment at four concurrent fifty-year terms.

Appellant timely filed a motion for new trial in each case. He also filed an affidavit in support of his motion for new trial, stating his allegations under oath. The motion for new trial was overruled by operation of law without a hearing.

In his first ground of error, appellant asserts that his guilty plea was involuntary because he relied upon inaccurate information from counsel that his sentence would not exceed seven years. The only support for appellant’s allegations as to his attorney’s advice is the affidavit filed with his motion for new trial. Allegations in a motion for new trial are not self-proving. Vaughn v. State, 456 S.W.2d 141, 142 (Tex.Crim.App.1970). Therefore, appellant’s assertions in his brief as to ineffective assistance of counsel are unsupported by the record. The first ground of error is overruled.

In his second ground of error, appellant asserts that his guilty plea was involuntary because his attorney incorrectly informed him that he was eligible for probation and the trial judge did not inform him otherwise. Again, appellant’s allegations as to his attorney’s advice are not supported by the record. Id.; Shepherd v. State, 673 S.W.2d 263, 267 (Tex.App.-Houston [1st Dist.] 1984, no pet.). Furthermore, a trial judge is only required to warn the defendant concerning his ineligibility for probation if the defendant hopes to receive and actively pushes for probation. Lewis v. State, 630 S.W.2d 809, 811 (Tex.App.-Houston [1st Dist.] 1982, no pet.). Appellant in the instant case apparently never indicated to the court that he considered himself eligible for probation, nor did he file an application for probation.

Appellant cites Murphy v. State, 663 S.W.2d 604, 610 (Tex.App.-Houston [1st Dist.] 1983, no pet.) as support for his position that the trial judge erred in this matter; but Murphy merely states that although a judge is not required to inform a probation applicant of his ineligibility, the better practice is to advise the applicant of this error if the court is aware of any misunderstanding. In the instant case there is no evidence that appellant was a probation applicant or that the trial judge was aware of any misunderstanding. Although we also feel that the better practice is to advise a defendant of his ineligibility for probation as a matter of course when this circumstance arises, there is no indication that the trial judge was obliged to inform appellant of this fact. See also Shepherd v. State, 673 S.W.2d 263; Spencer v. State, 666 S.W.2d 578, 581 (Tex.App.-Houston [1st Dist.] 1984, pet. ref’d). Therefore, appellant’s second ground of error is overruled.

The third ground of error alleges that the trial court erred in refusing to allow appellant to withdraw his guilty plea at the sentencing hearing. Appellant contends that his protestations of innocence at this hearing absolutely required the trial judge to withdraw his guilty plea. According to appellant’s brief, a defendant has an automatic right to "withdraw his guilty plea before a judgment is rendered. McWherter v. State, 571 S.W.2d 312, 313 (Tex.Crim.App.1978); Milligan v. State, 168 Tex.Crim.R. 202, 324 S.W.2d 864, 865 (1959). Appellant asserts that judgment is not rendered until punishment is actually pronounced; therefore, the court should have allowed withdrawal of the guilty plea since it had not publicly announced appellant’s sentence.

The Court of Criminal Appeals has indicated that if evidence of innocence is raised after an adjudication of guilt upon a defendant’s guilty plea, the trial court is not required to withdraw the plea upon the defendant’s request. Sullivan v. State, 573 S.W.2d 1, 3 (Tex.Crim.App.1978). In DeVary v. State, 615 S.W.2d 739, 741 (Tex.Crim.App.1981), the Court of Criminal Appeals acknowledged the bifurcated system whereby the trial court finds a defendant guilty, takes the case under advisement, then enters a final judgment when the sentence is pronounced. In DeVary, the defendant requested the withdrawal of his guilty plea after the trial judge took the case under advisement and before he assessed punishment. However, the Court of Criminal Appeals clearly stated that such a request comes too late since any withdrawal of a guilty plea at this stage is within the discretion of the trial court. Since there is no evidence in this case that the trial court abused its discretion, appellant’s third ground of error is overruled.

The judgment of the trial court is affirmed.


author: T. GILBERT SHARPE, Justice (Retired).

text:
    Thaddeus KIRK, Appellant, v. The STATE of Texas, Appellee.
    No. C14-84-105CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 25, 1984.

      M. Bruce Port, Texas City, for appellant.
    Miguel Martinez, Galveston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired).
   OPINION

T. GILBERT SHARPE, Justice (Retired).

Thaddeus Kirk, Appellant, was convicted by a jury of aggravated sexual abuse. The jury further found the enhancement allegations of the indictment to be true and assessed punishment at life imprisonment. Appellant asserts six grounds of error which we find to be without merit. We affirm.

During the early morning hours of April 23, 1983, the complainant, a nineteen year old female, was walking to a convenience store situated in the area of 27th and Avenue K in Galveston. Complainant testified that as she made her way along the street, she was accosted by appellant. The appellant brandished a gun, which he used to strike complainant repeatedly in the face and to force her off the street into an alley. Once in the alley, appellant compelled the complainant to commit oral sodomy. A witness who had heard complainant’s screams and saw appellant threaten her with a gun summoned the police. The responding officer placed appellant under arrest, after appellant had dropped his weapon.

In his first ground of error, appellant complains that the trial court erred in allowing certain questions and answers allegedly relating to specific acts of extraneous conduct. The record reveals no objection to the same. Absent a timely objection, appellant waived error in the admission of such evidence. Parker v. State, 649 S.W.2d 46 (Tex.Crim.App.1983) cert. denied - U.S. -, 104 S.Ct. 496, 78 L.Ed.2d 689 (1983). Ground of error one is overruled.

Appellant urges in his second ground of error that he was denied effective assistance of counsel by his appointed attorney. As a basis for this contention, appellant compiles a list of certain events disclosed by the record of the proceedings below and the action taken by his counsel in response thereto. Appellant’s list includes alleged changes of counsel when he was not present, absence of pre-trial motions, absence of a punishment election motion, an abbreviated voir dire, and failure to object to certain portions of testimony and the jury charge.

The United States Supreme Court has recently held that where the defendant asserts a claim of ineffective assistance of counsel, he shoulders the burden of meeting a two-prong test. Strickland v. Washington, - U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, appellant must demonstrate that counsel’s performance was deficient to the extent that counsel was not functioning within the sixth amendment mandate of “right to counsel.” Second, defendant must show that there is a reasonable probability that, but for the ineffective assistance of counsel, the result of the proceeding would have been different. Strickland, 104 S.Ct. at 2064. The right to counsel, whether appointed or retained, does not mean errorless counsel. Williams v. State, 549 S.W.2d 183 (Tex.Crim.App.1977). The sufficiency of an attorney’s assistance must be measured by the totality of the representation afforded the accused. Archie v. State, 615 S.W.2d 762 (Tex.Crim.App.1981).

A review of the totality of representation afforded the appellant does not reflect a denial of effective assistance of counsel. The record reflects that defense counsel was permitted discovery of the State’s case, without discovery motions. Counsel conducted an extensive and in-depth cross examination of each witness for the State, effectively highlighting the weak portions of his testimony. Counsel availed himself of the Gaskin rule, securing prior written statements of the State’s witnesses and attempted to impeach the complainant by eliciting prior convictions. Ground of error two is overruled.

Appellant’s third ground of error challenges the denial of his first amended motion for new trial based upon the jury improperly considering the effect of parole upon the sentence. A jury’s discussion of parole law does not constitute reversible error unless an affirmative showing of the following five elements is made: (1) a misstatement of the law (2) asserted as fact (3) by one professing to know the law (4) which is relied upon by other jurors (5) who for that reason changed their vote to a harsher punishment. Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984) (en banc). The record fails to show the existence of these elements. The record shows only that some general discussion occurred as to parole law. When the jury requested of the judge specific information pertaining to that subject, it was instructed not to be concerned with the topic in its deliberations. After this instruction, the topic of parole was dropped. Appellant’s reliance on the case of Heredia v. State, 528 S.W.2d 847 (Tex.Crim.App.1975) is misplaced, as it has been overruled by the Sneed decision and therefore is not now authoritative. Appellant’s third ground of error is overruled.

In his fourth and fifth grounds of error, appellant claims that the evidence was insufficient to support an aggravated rape conviction, and the jury charge was at fatal variance with the indictment. The complainant testified in substance that appellant accosted her during the early morning hours in a deserted area. He pushed a gun into her stomach, struck her repeatedly and ordered her to go with him and commit oral sodomy. Appellant stated he could kill the complainant if he wished. The complainant stated she was afraid appellant would shoot her and hurt or even kill her. Aggravated Sexual Abuse occurs where the actor, in the course of sexual abuse, by acts, words or deeds places the victim in fear of death, or serious bodily injury. TEX.PENAL CODE ANN. art. 21.-05 (Vernon 1979). We find the evidence to be sufficient to establish complainant was in fear of death and serious bodily injury.

The jury charge permitted the jury to convict upon a finding of fear of death or serious bodily injury. The indictment alleges appellant placed the complainant in fear of death and serious bodily injury. Appellant argues that where the state pleads in the conjunctive, appellant cannot be convicted under a charge in the disjunctive. The Texas Court of Criminal Appeals has on numerous occasions rejected this proposition. See Zanghetti v. State, 618 S.W.2d 383 (Tex.Crim.App.1981). Grounds of error four and five are overruled.

In his final ground of error, appellant urges that the trial court committed reversible error by allowing trial counsel to withdraw and appointing substitute counsel in appellant’s absence. Appellant argues that because the record does not affirmatively indicate appellant’s presence, the court must presume he was absent. The correct rule is to the contrary. Where the record is silent, there is a presumption that procedural rules have been complied with. Frame v. State, 615 S.W.2d 766 (Tex.Crim.App.1981). Mere assertions in appellant’s brief, unsupported by the record, cannot be accepted as fact on appeal. Yates v. State, 624 S.W.2d 816 (Tex.App.-Houston [14th Dist.] 1981, no pet.). The record reflects that appointed counsel had ample opportunity to contact appellant and discuss the case with him. Appellant’s sixth ground of error is overruled.

We find no error and affirm the judgment of the trial court.


author: JUNELL, Justice.

text:
    Charles Edward MACK, Appellant, v. The STATE of Texas, Appellee.
    Nos. C14-84-111CR, C14-84-112CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 25, 1984.
    Larry Urquhart, Moorman, Tate, Moor-man & Urquhart, Brenham, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired).
   OPINION

JUNELL, Justice.

This is an appeal from two murder convictions tried jointly before a jury. The jury assessed punishment at 35 years. In his first ground of error appellant asserts that the trial judge abused his discretion by refusing to let the defense impeach a state witness with a felony conviction outside the ten-year rule. Appellant urges in his second ground of error that the circumstantial evidence was insufficient to support the convictions. Finding no error we affirm the convictions.

The state’s primary witness, Frank Gibson, had been with appellant the night of the murders and drove appellant to the scene of the crime. Gibson admitted at a hearing on the state’s motion in limine that he had been convicted in June of 1965 for assault with intent to rape and robbery by assault. He was sentenced to twenty-five years confinement and released from prison on August 22, 1973. He testified December 13, 1984, approximately eleven years and four months after release. Appellant acknowledges that a prior felony conviction of a witness is admissible for impeachment purposes if not too remote and that the question of remoteness is largely a matter within the discretion of the trial court. The general rule of thumb is that a conviction is remote if the witness had been released from prison ten years or more prior to the time of testimony. Taylor v. State, 612 S.W.2d 566 (Tex.Crim.App.1981). Appellant urges that the court should not have applied the general rule of thumb because the witness’s status as a convicted felon could have motivated him to cooperate with the police. If the witness had been tried for the murders, he faced the possibility of an enhancement charge. The court of criminal appeals has rejected this contention in Spriggs v. State, 652 S.W.2d 405 (Tex.Crim.App.1983) (en banc). In Spriggs the defense wanted to bring up remote felonies because the witness was facing a pending indictment that did not contain an enhancement charge. The court held that the state’s power to add the enhancement charge at any time did not establish a bias or motive for testifying against the defendant and did not warrant admission of the remote convictions. Appellant’s first ground of error is overruled.

Appellant's second ground of error urges that the circumstantial evidence was insufficient to support the convictions. We find the evidence sufficient and overrule the second ground of error. The following summary of the evidence should explain our holding.

The state’s main witness was Frank Gibson. Gibson testified that he picked up appellant and Joseph Woods while driving around in his wife’s car. They drove first to a party at a nightclub nearby and then left to search for a homosexual to “roll.” The search was unsuccessful and the three headed home in the early morning hours. On the way home Gibson stopped at a Stop-N-Go drive-in market on Broadway Street to buy cigarettes. Appellant and Woods left the car, and Gibson slumped down in the front seat and closed his eyes to rest. While he waited in the car, he heard shots fired and the appellant and Woods came running back to the car. Gibson refused to let them in the car. The two left on foot down Broadway while Gibson drove away. Gibson waited until the two had time to walk home and drove down the street where appellant lived. He saw appellant and Woods and asked what had happened. Appellant told him “he had got into it with some Mexicans.”

Another key witness was Sherry Lacy. Lacy was spending the night in an apartment in a complex near the Stop-N-Go on Broadway. In the early morning of June 5, 1983, she and her two-year-old niece walked to the Stop-N-Go to buy cigarettes. The Stop-N-Go is located in a strip mall. As she was leaving the store, she noticed that appellant was standing by the telephone three or four feet from the door and facing Broadway. Appellant was wearing jeans and a white T-shirt. She saw a bulge under the shirt that looked to her like a gun stuck into his waistband. Miss Lacy had been acquainted with appellant for five years and could recognize his voice. As she walked home along the front of other stores in the mall, she saw two Mexican men walking across Broadway. She heard appellant yell “Run mother _” followed by four loud shots. She looked back to see one of the Mexican men run back toward Broadway and fall. The other man ran along the sidewalk behind her. She heard him fall onto the concrete. She was frightened and ran home. She did not call the police.

From testimony of Johnie Love, another state witness, it was established that on June 7, 1983, the appellant gave him a short, nickel-plated .88 caliber revolver as collateral for a $25.00 loan. On the next Sunday appellant repaid the loan with interest ($31.25) and got the gun back. Tuesday morning appellant telephoned Love and said he was in trouble and wanted Love to help him out. Appellant said that the gun "had been involved.” If anyone asked Love about the gun, appellant wanted Love to say it was a smaller caliber pistol.

Other testimony from investigating police officers and a forensic pathologist revealed that two Latin American males, Candido Mesa Cabrera and Jesus Mesa Al-cantar, were found dead outside the Stop-N-Go June 5, 1983. The pathologist was of the opinion that both died of gunshot wounds to the back. A .38 caliber bullet was recovered from the body of Candido Mesa Cabrera. Jesus Mesa Alcantar was wounded in the ring finger of the right hand, palm side. Soot around the wound indicated that the muzzle of the gun was within six inches of the hand when fired. Strippling was found around the back entrance wound of Jesus Mesa Alcantar indicating that the gun was fired within twenty-four inches of the victim. A firearm expert testified that the .38 caliber bullet recovered from Candido Mesa Cabrera came from a revolver as opposed to a semiautomatic gun.

Appellant contends that the state’s circumstantial evidence was weak and left open the reasonable hypotheses that Joseph Woods or Frank Gibson fired the fatal shots that night. Citing Routon v. State, 589 S.W.2d 700, 704 (Tex.Crim.App.1979) and Waldon v. State, 579 S.W.2d 499 (Tex.Crim.App.1979), appellant places special emphasis on the fact that the state did not call Woods to the stand or offer an explanation for failure to do so. We do not find Routon or Waldon controlling because the state’s evidence is not weak. We recognize that the reasonable hypotheses test is still to be utilized in deciding sufficiency of the evidence on appeal. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (on rehearing en banc). We hold that the jury could have reasonably eliminated Joseph Woods and Frank Gibson as the ones who fired the shots because Sherry Lacy saw only appellant at the spot from which the shots were fired. She also knew Woods and Gibson but saw neither that night.

The convictions are affirmed.


author: T. GILBERT SHARPE, Justice, Retired.

text:
    Dennis Lee BOGERT, Appellant, v. The STATE of Texas, Appellee.
    No. C14-84-132CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 25, 1984.

      Ken Sparks, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J., Retired.
   OPINION

T. GILBERT SHARPE, Justice, Retired.

Dennis Lee Bogert, appellant, was found guilty by a jury of possession with intent to deliver a controlled substance, methamphetamine. Punishment was assessed by the jury at fifteen years confinement. By his sole ground of error, appellant contends the evidence was insufficient to support a conviction. We affirm.

During the months of January through March of 1982, the Federal Drug Enforcement Agency was conducting an investigation into the illegal manufacture of controlled substances in the Houston, Texas area. Pursuant thereto, agents of the DEA became aware of a warehouse/office building located at 10216 Georgibelle, unit 900, where the circumstances indicated a clandestine drug laboratory was in operation. Unit 900 is situated on the northernmost end of a row of connecting mini-storage facilities with adjoining offices. An overhead door provides access to the eastern portion of the facility and a conventional door is located on the western side.

Unit 900 was placed under surveillance for a period beginning March 6, 1982. On March 7, DEA agents smelled chemical odors associated with the manufacture of methamphetamine emanating from unit 900, and no such odors were detected from any other unit. The agents obtained a search warrant for the location and returned on March 8 to execute it. Before they had an opportunity to do so, the agents observed appellant enter unit 900. The appellant had been seen in the area of the warehouse on previous occasions. On those prior occasions, as well as on March 8, appellant used motor transportation to and from the vicinity of unit 900, but always arrived there on foot.

After appellant’s entrance into unit 900, the agents waited fifteen minutes before entering the unit by the overhead door on the eastern side. The appellant was the only person found on the premises. He was seated in the room where the agents made their initial entrance. The testimony revealed that this room was equipped to serve as a chemical laboratory. Large quantities of chemical substances and manufacturing apparatus filled the room. Agents seized over four pounds of a liquid substance containing 23% pure methamphetamine, as well as large quantities of other chemical compounds which are used in the manufacture of methamphetamine.

Appellant was arrested but released on bond. However, appellant failed to make court appearance and remained a fugitive for six months until he was apprehended.

The Controlled Substances Act defines possession as actual care, custody, control or management. TEX.REV.CIV. STAT.ANN. art. 4476-15 § 1.02(23) (Vernon 1979); See Oaks v. State, 642 S.W.2d 174 (Tex.Crim.App.1982). Regardless of whether the theory of prosecution is joint or sole possession, the evidence must so affirmatively link the accused to the contraband that it is reasonable to infer the accused knew of the contraband’s existence and nature. Naquin v. State, 607 S.W.2d 583 (Tex.Crim.App.1980). Possession may be established by circumstantial evidence in the absence of direct evidence of exclusive possession by the accused. Foster v. State, 635 S.W.2d 710 (Tex.Crim.App.1982). However, in order to establish the requisite link between the accused and the contraband, the circumstantial evidence must consist of facts and circumstances which are additional to the accused’s presence at the location of the contraband and tend to indicate the accused’s knowledge and control. Dubry v. State, 582 S.W.2d 841 (Tex.Crim.App.1979).

The evidence offered by the state established that appellant had been seen in the area of 10216 Georgibelle on several previous occasions and that his use of motor transportation was always displaced several blocks from that location, so that appellant would arrive at unit 900 on foot. Appellant was followed on one occasion as he left the area by cab, however the cab made several obvious attempts to lose any person that might be following, and the police were forced to break off their surveillance. The agents observed appellant let himself into unit 900 on March 8. Appellant was found alone on the premises in a room full of chemicals and equipment of an ongoing manufacturing operation. Over four pounds of the controlled substance, methamphetamine, were found out in plain and open view. After posting bond, appellant failed to appear as required and was at large for six months. Flight, in the context of bail-jumping, may be construed as evidence of guilt. Wockenfuss v. State, 521 S.W.2d 630 (Tex.Crim.App.1975).

The standard of review in sufficiency of evidence cases requires the reviewing court to consider all the evidence in a light most favorable to the verdict. Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984) (en banc). The jury was authorized to find that the evidence offered by the state excluded all other reasonable hypotheses except that of appellant’s guilt.

We overrule appellant’s sole ground of error and affirm.


text:
    Brady Lynn BECK, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-504CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 25, 1984.
    Rehearing Denied Nov. 15, 1984.

      Stanley G. McGee, Buddy Stevens, An-gleton, for appellant.
    Jim Mapel, Angleton, for appellee.
    Before JUNELL and SEARS, JJ., and T. GILBERT SHARPE, J. (Retired).
   OPINION

JUNELL, Justice.

This is an appeal from a capital murder conviction. The appellant was 16 years old at the time of the offense. He was certified as an adult, tried and sentenced to life. We reverse and remand for new trial because the trial court should have suppressed admission of appellant’s oral confession given to a police officer after appellant informally requested an attorney.

The following testimony was heard by the trial court in a pretrial suppression hearing requested by appellant. Appellant was arrested at about 9 p.m. November 2, 1982, at his Lake Jackson home by a Lake Jackson Police detective and Brazoria County Sheriffs Lieutenant Matt Wingo. He was informed of his rights by the detective using a juvenile warning card. He was taken to the juvenile detention facility in Angleton, Texas. The record is silent as to further events that night. On November 3, 1982, appellant was taken to the Brazoria County sheriffs office and fingerprinted and photographed by Lt. Wingo. At 11:15 a.m. he was taken to a fourth floor deputy’s office where Justice of the Peace Walter Mathews read the juvenile warnings required by Tex.Fam.Code Ann. § 51.09(b)(1) (Vernon Supp.1984).

After the magistrate left, Lt. Wingo entered the office to interview appellant. Appellant asked Lt. Wingo “if he should have a lawyer present before he gives me a written statement.” Lt. Wingo declined to make a decision for appellant; instead he told appellant that he would not take a written statement. At that stage of the investigation Lt. Wingo knew that the victim’s wallet was still missing and that appellant was suspected of having discarded it during the crime. Lt. Wingo also knew that if information from appellant’s oral statement led to discovery of the wallet, that statement could be admissible. Appellant told Lt. Wingo about the crime. Whether the statement was elicited in question-and-answer form or given in an uninterrupted narrative is not reflected in the record.

After the confession Lt. Wingo telephoned Officer Ronnie Duncan with information on where the wallet could be found. Officer Duncan, using that information, found the wallet in an area that he and Lt. Wingo had unsuccessfully searched the day before using information given by Beck’s accomplice.

Appellant testified at the suppression hearing to essentially the same facts, adding that he also gave Lt. Wingo the name of his lawyer, Sam Lee. He also claimed that Lt. Wingo promised that what was said would not leave the room. Lt. Wingo remembered that the name Sam Lee came up sometime during the investigation, but did not remember appellant specifically asking to see him before giving the statement. Lt. Wingo specifically denied any offer of confidentiality.

The trial court denied the suppression motion because the wallet was discovered as a consequence of the oral confession. At trial the court instructed the jury to disregard appellant’s oral statement if they did not believe beyond a reasonable doubt that the confession was voluntarily given and that the wallet was found as a direct result of the statement. The threshold question here is whether under the constitutions of this state and the United States, appellant invoked his right to counsel by asking whether he should have a lawyer present before giving a written statement. If it is determined that appellant’s actions did invoke his right, it is clear that the state has not met its heavy burden to prove that appellant knowingly and intelligently waived the right to counsel. See Green v. State, 667 S.W.2d 528, 529 (Tex.Crim.App.1984) (en banc); Reed v. State, 518 S.W.2d 817, 821 (Tex.Crim.App.1975).

In Ochoa v. State, 573 S.W.2d 796 (Tex.Crim.App.1978) (en banc) the appellant informally invoked his right to counsel when he said to the interviewing officer “that he probably ought to talk to a lawyer ... or didn’t want to sign anything until he talked to a lawyer.” 573 S.W.2d at 799. The officer responded to this statement by giving the suspect coffee and cigarettes and talking about families, horses and children to “get on his good side” before turning the conversation back to the offense. 573 S.W.2d at 800. Ochoa’s conviction was reversed because the confession should have been suppressed. The state attempts to distinguish Ochoa by contending that in Ochoa the officer initiated the conversation, while Lt. Wingo testified that it was appellant who initiated any conversation after mentioning a need for a lawyer. We are not persuaded. Lt. Wingo admitted that he promised not to take a written statement. That agreement could be taken as an invitation to make an oral statement instead. There was no evidence of a break in the “interview” after the desire for an attorney was indicated. Lt. Wingo may have ceased “interrogation” but he did not cease the interview.

Another case on point is Goodnough v. State, 627 S.W.2d 841 (Tex.App.-San Antonio 1982, pet. ref’d). In Goodnough a constable came to the suspect's jail cell after the suspect was served with a second complaint and asked him if he wanted to make a statement. The response was “I might better talk to my lawyer before.” The constable’s reply was, “Well, I’m here to talk to you now. I’m not going to be back.” Then the suspect relented. The appeals court found that the appellant had invoked his right to counsel. “The critical factor is that appellant responded to Davis’ requests for statements with vocal reluctance to speak without an attorney present. If it was indeed unclear to Davis whether appellant had invoked this right, it was Davis’ duty, as a peace officer acting under Miranda, to clarify appellant’s position in order to honor his constitutional rights.” 627 S.W.2d at 844. Appellant’s first ground of error is sustained. A new trial must be held.

Appellant’s second ground of error complains about the same confession, but on the ground that Lt. Wingo deceived appellant into giving an oral statement. The second ground is overruled. It is superfluous.

Appellant’s third ground of error is that the confession to Lt. Wingo is inadmissible as a product of an illegal arrest because the warrant for arrest was not based on probable cause. Again, our decision on ground one makes the point moot, but we will say that the application for immediate custody and probable cause (juvenile arrest warrant) does set out why a detached and neutral magistrate should believe the informer. The informer, a friend of appellant’s accomplice, made a sworn written statement attached to and adopted by reference into the complaint signed by Lt. Wingo. The informer related in detail information that Beck’s accomplice had told him about the murder, including the type of car the victim had been driving, the way the shooting occurred and that the weapon was a .22 caliber. Officer Wingo’s complaint stated that a body had been found with two bullet holes from a .22 caliber pistol. Under Bellah v. State, 653 S.W.2d 795 (Tex.Crim.App.1983) (en banc) the complaint and sworn statement clearly provided probable cause to issue the warrant. The third ground of error is overruled.

In the fourth and fifth grounds of error appellant argues that Gerald Don Shelton, appellant’s uncle, should not have been allowed to testify as to Beck’s confession to him because Shelton was acting as an agent for law enforcement authorities and did not give Miranda warnings to appellant. The grounds of error were preserved in the same suppression hearing discussed above. Shelton, who was close to appellant and had on occasion kept the boy in his own home, went to appellant’s house the evening of November 2, 1982, because he had heard the boy was in trouble. Shelton pointed to a newspaper story about the murder and asked if appellant were involved. Appellant answered that he had killed the boy. The uncle then remained at the house talking to the boy about the murder. He was trying to convince appellant to get a lawyer and turn himself in.

Appellant contends that the exclusionary rule in Tex.Code Crim.Proc.Ann. art. 38.23 (Vernon 1970) requires exclusion of the confession to the uncle whether or not the uncle was acting as an agent of law enforcement. Article 38.23 does apply to peace officers and individuals alike, but it comes into play only when discovery of the evidence was done in violation of the law. There is no evidence in the record that the uncle was without a legal right to be in his sister’s house. As long as he had permission to be where he was, any evidence he obtained there is admissible. Hall v. Texas, 643 S.W.2d 738 (Tex.Crim.App.1983) (en banc). The inadmissibility of oral confessions is also governed by Tex.Code Crim. Proc.Ann. art. 38.22 § 3 (Vernon Supp. 1984), which excludes only improperly taken custodial interrogations. Custody means in the custody of law enforcement officers or their agents. See Arnold v. State, 659 S.W.2d 45 (Tex.App.-Houston [14th Dist.] 1983, no pet.). There is no evidence that the uncle was acting as an agent of the police when he went to appellant’s house as a concerned uncle. There is no evidence that the uncle had even spoken to police before going to see appellant. A similar situation occurred in De Leon v. State, 201 S.W.2d 816 (Tex.Crim.App.1947). After participating in a shooting, the defendant went to a friend’s house to consult about turning himself into the sheriff. The court, in interpreting the statutory predecessor to Article 38.22, held that the confession given to the friend was admissible. Appellant’s fourth and fifth grounds of error are overruled.

The sixth ground of error complains that the state injected injurious and prejudicial matter before the jury panel during voir dire when the prosecuting attorney told the panel that he was there to make sure that the defendant got a fair trial. The sixth ground of error is overruled. A prosecutor is, under law, obligated to see that justice is done. Tex.Code Crim.Proc.Ann. art. 2.01 (Vernon Supp. 1984). It cannot be prejudicial to inform the panel of that fact.

The last nine grounds of error are that the trial court allowed the state to misstate the law during voir dire when the prosecuting attorney uséd hypothetical situations to see if the potential juror could under some circumstances grant probation to a person convicted of capital murder. The appellant complains that the hypothetical used by the state described manslaughter, not murder. The appellant does not list the affected jurors by name, but cites to pages in the transcript. None of the jurors involved were seated on the jury. If there was error, it was harmless. Grounds of error seven through fifteen are overruled.

We reverse and remand for a new trial because appellant’s oral confession to Lt. Wingo should have been suppressed.


author: ROWE, Justice.

text:
    AUTOMARK OF TEXAS, Appellant, v. DISCOUNT TROPHIES, Appellee.
    No. 05-83-01188-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 29, 1984.

      W. Bruce Monning, Vial, Hamilton, Koch & Knox, Dallas, for appellant.
    Billy D. Hullum, Wills Point, for appel-lee.
    Before AKIN, WHITHAM and ROWE, JJ.
   ROWE, Justice.

This appeal concerns the oft-litigated question of whether consequential damages for lost profits as found by a jury were proved with sufficient certainty to permit recovery. Each such case must be determined on its own facts. Pace Corporation v. Jackson, 275 S.W.2d 849, 859 (Tex.Civ.App.-Austin), aff'd, 155 Tex. 179, 284 S.W.2d 340 (1955). Under the particular facts of this case, we hold that the evidence of record was legally insufficient. Accordingly, we reverse and render a take-nothing judgment as to those two awards totaling $16,500 for consequential damages appearing in the jury verdict.

Discount Trophies is the assumed name under which a nationwide business related to ballroom dance conventions has been conducted by Tom O’Dell since about 1975. This business has included not only making the arrangements for these conventions in over a dozen cities on an annual basis, but also providing travel services for and selling jewelry, t-shirts, and trophies to the convention participants. For a price, O’Dell also personalizes the trophies for dance contest winners by engraving on the trophies inscriptions appropriate to identify the prize. To do this engraving O’Dell had purchased in May of 1980 for a price of $2,000 a trophy typewriter from its manufacturer, Automark of Texas. The typewriter operated satisfactorily, with only minor repairs, for about two years. This lawsuit arose because of a malfunction which occurred in the keyboard of the type-' writer in February of 1982, which problem despite three separate attempts at correction by Automark, was never solved to O’Dell’s satisfaction.

O’Dell was attending a dance convention in Williamsburg, Virginia, when the keyboard on the trophy typewriter first malfunctioned. A substitute keyboard expedited to Williamsburg also malfunctioned. After a second substitute failed, Automark sent a third substitute, which did not reach O’Dell in time for use at subsequent conventions in New Orleans and Houston. When the third substitute was installed, the entire typewriter “blew up” and was returned to Automark for repairs. O’Dell refused to pay $747.60 for repair charges and chose instead to operate the trophy engraving part of his business by the much slower hand engraving method.

On the issue of consequential damages, O’Dell testified at trial both as the business owner and as a business expert. All of O’Dell’s non-expert testimony concerning damages was given from personal and unaided recollection. Despite a timely request by Automark for O’Dell’s pertinent business records and despite an admission by O’Dell that such records were available, O’Dell appeared at trial with no objective business data other than a hand-prepared summary itemizing potential engraving sales losses, which summary the trial judge ruled to be inadmissible. Although deprived of any resort to this summary, O’Dell was able nonetheless to recollect approximately: (1) the number of participants at 16 dance conventions while he was without use of the trophy typewriter, (2) the engraving sales actually made at these conventions, and (3) the engraving sales at similar conventions held the previous year. Because of O’Dell’s long-time experience in the dance convention field, the trial judge also permitted O’Dell to testify as an expert. The substance of O’Dell’s expert testimony was that between seventy to eighty percent of all convention participants acquire engraving services and that sale proceeds for engraving services average between $4 and $5 per person for the total number of all participants at a convention. We observe in passing that all of this expert testimony can be characterized as referring to a loss of sales income rather than to a loss of net profits. We observe, further, that calculations given by O’Dell in dollars are stated invariably not as the individually accurate figures but as merged totals, as percentage estimates, as averages, and as rounded-off even amounts. We find this subjective testimony of O’Dell, standing alone, legally insufficient to support an award of consequential damages for lost profits.

To be recoverable, lost profits must be proved with “reasonable certainty.” Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098 (1938); Copenhaver v. Berryman, 602 S.W.2d 540, 544 (Tex.Civ.App.-Corpus Christi 1980, writ ref’d n.r.e.). Controlling as to proper disposition of this appeal is the complete absence from the record of objective facts, figures, and data without which, in our opinion, it cannot be ascertained with the required degree of certainty that O’Dell’s trophy engraving operation, as distinguished from his other dance convention related business, would have continued to be profitable had the trophy typewriter not failed to function. Two critical determinants are missing: (1) nowhere in the record is there objective documentation that prior to the trophy typewriter’s malfunctioning the particular business operation in question had an established track record of profitability, and (2) nowhere in the record is there objective documentation that if the trophy engraving sales had continued at their past rate, and if all current overhead and expenses allocable to this particular business operation had been deducted from gross sales income, a net profit would have been obtained had the typewriter not malfunctioned. As a consequence, it is not possible from the record to make a meaningful correlation between the business’s profitability with the operational typewriter and the business’s loss of profitability attributable to the nonoperational typewriter. Atomic Fuel Extraction Corporation v. Slick’s Estate, 386 S.W.2d 180, 189-90 (Tex.Civ.App.1964), writ ref’d n.r.e. per curiam, 403 S.W.2d 784 (Tex.1965); Pederson v. Dillon, 623 S.W.2d 696, 698 (Tex.Civ.App.-Houston [1st Dist.] 1981, no writ); Copenhaver, 602 S.W.2d at 544; Van Sickle v. Clark, 510 S.W.2d 664, 668-69 (Tex.Civ.App.-Fort Worth 1974, no writ). We agree with Automark’s contention that the distinguishing feature between the line of Texas cases permitting recovery for lost profits and the line of cases denying recovery is a reliance upon routinely kept business records which have been produced in court — that is, upon an evaluation of a business’s decreased profitability based upon objective facts, figures, and data and not upon the subjective opinions of interested parties. White v. Southwestern Bell Telephone Company, Inc., 651 S.W.2d 260, 262 (Tex.1983); Village Square, Ltd. v. Barton, 660 S.W.2d 556, 560 (Tex.App.-San Antonio 1983, no writ); compare Mesa Agro v. R.C. Dove & Sons, 584 S.W.2d 506, 512 (Tex.Civ.App.-El Paso 1979, writ ref’d n.r.e.); Restatement (Second) of Contracts, § 350, illustration 5 at 128 (1979). The record before us places this case in the line where recovery has been denied. Auto-mark’s point of error complaining of legally insufficient evidence of lost profits is sustained. The judgment of the trial court is reformed to delete the combined $16,500 award for consequential damages and to provide for total damages in favor of Discount Trophies, of $3,750, including attorney’s fees, instead of $20,250.


author: WHITHAM, Justice.

text:
    DAVID McDAVID PONTIAC, INC., Appellant, v. Frances NIX, Appellee.
    No. 05-83-00787-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 31, 1984.

      Carmen Blankenship, Irving, for appellant.
    Robert Charles Lyon, Mesquite, for ap-pellee.
    Before SPARLING, VANCE and WHIT-HAM, JJ.
   WHITHAM, Justice.

Appellee, Frances Nix, brought this action under the Deceptive Trade Practices— Consumer Protection Act, TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63 (Vernon Supp.1982-1983), against appellant, David McDavid Pontiac, Inc. The action arises out of a sale of an automobile. The jury answered all issues in Nix’s favor. Judgment in favor of Nix awarded actual damages and restoration of the consideration paid and trebled both and awarded Nix attorney’s fees. The trial court denied in-junctive relief against McDavid Pontiac. We conclude that the trial court correctly denied injunctive relief. We conclude that the trial court erred in awarding restoration of the consideration paid. We conclude that Nix is entitled to recover $1,080.60 pursuant to section 17.50(b)(1) of the Act. We conclude that the award of attorney’s fees was excessive. Accordingly, we affirm in part, reverse and render in part and suggest remittitur as to the award of attorney’s fees.

Liability

First, we consider McDavid Pontiac’s liability under the Act. McDavid Pontiac tells us in its brief that “[sjpecial issues No. 5, No. 7, No. 9, No. 12, No. 17(a & b) and No. 15 were the Special Issues submitted pursuant to § 17.46 and § 17.50a [of the Act].” We agree and treat these issues as the liability issues. McDavid Pontiac contends in numerous points of error that there was no evidence to support the jury’s findings to these issues. Therefore, we must determine whether there is any probative evidence to support the jury’s findings to any one or more of these issues in order to establish McDavid Pontiac’s liability under the Act. Virtually all of the facts in the present case are disputed and confusing. The record, however, contains certain undisputed facts. We focus on those undisputed facts to illustrate a situation in which reasonable minds can draw different inferences or conclusions from undisputed facts, thereby raising issues for the jury.

Nix testified that when she entered McDavid Pontiac’s place of business on September 13 she told the salesman that among other things she wanted a “green car.” Later that day, Nix agreed in writing to purchase a described automobile from McDavid Pontiac for $10,223.15. The contract detailed certain equipment, options or features of the automobile. That automobile was yellow. On a day in dispute, the parties abandoned purchase and sale of the yellow automobile because Nix wanted a green automobile. McDavid Pontiac did not have a green automobile identical to the yellow automobile; however, McDavid Pontiac obtained a green automobile from another dealer and delivered it to Nix on September 19. Nix drove the green automobile away from McDavid Pontiac that day and kept it until mid or late October when she returned it to McDavid Pontiac after driving it 1200 miles. The selling price on a September 19 retail installment contract on the green automobile bearing Nix’s signature was $10,223.15 — the identical selling price of the yellow automobile on. the September 13 purchase contract. The green automobile lacked many of the features of, and options and equipment on, the yellow automobile.

Nix contends that under her agreement with McDavid Pontiac, the green automobile was to be identical to the yellow automobile described in the September 13 contract and that she was defrauded because the green automobile delivered to her was not identical to the yellow automobile. McDavid Pontiac concedes that the green automobile was not identical to the yellow automobile. McDavid Pontiac contends, however, that Nix agreed to purchase the green automobile because it is the automobile described in the September 19 retail installment contract. The jury, however, rejected most, if not all, of the evidence upon which McDavid Pontiac grounds its contention because the jury found that Nix did not accept delivery of the green automobile. McDavid does not challenge submission, instruction or finding as to the following special issue number three:

Do you find from a preponderance of the evidence that FRANCES NIX accepted delivery of the green Pontiac Bonneville, Vehicle Identification Number VIN 2069Y9P258582?
For purposes of answering this special issue you are instructed that “Acceptance” of goods occurs when the buyer: (1) After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them inspite of their non-conformity; or (2) Fails to make an effective rejection after he has had an opportunity to inspect the goods.

The jury answered “we do not.” Since there was no challenge to the jury’s finding that Nix did not accept delivery of the green automobile, we must accept that finding.

We now consider two of the liability special issues in light of the undisputed evidence of an identical selling price for both the yellow and green automobiles. Special issue number nine reads:

Do you find from a preponderance of the evidence that the Defendant David McDavid Pontiac, Inc. represented to Plaintiff that the green 1979 Pontiac Bonnevillé V.I.N. 2Q69Y9P258582 they were selling to Plaintiff had a characteristic or characteristics which it did not ultimately have?

The jury answered “Yes.” It is obvious that special issue number nine was submitted in light of the provisions of sections 17.50(a)(1) and 17.46(b)(5) of the Act (characteristics of the goods). Special issue number twelve reads:

Do you find from a preponderance of the evidence that Defendant David McDavid Pontiac, Inc., through its officers or employees, made an express warranty on September 13, 1979 to the Plaintiff that they would deliver to Plaintiff a green 1979 Pontiac Bonneville V.I.N. 2Q69X9P187663 equipped with a 350 V-8 engine with a 4-barrell carburetor, GR 78 white sidewalls, a heavy duty battery, certain specified gauges, power reclining seats, tungsten headlamps, vinyl top, air conditioning, fender guards, cruise control, tinted glass, visor mirror, sport mirror, power door locks, stereo 8-track, tilt wheel and wire wheel covers?

The jury answered “yes.” It is obvious that special issue number twelve was submitted in light of the provisions of section 17.50(a)(2) of the Act (express warranty). The automobile described in special issue number twelve described the yellow automobile but painted green.

It is undisputed that McDavid Pontiac’s selling price' for the yellow and green automobiles was the same amount. That facts are undisputed does not always eliminate the right to a fact finding. If reasonable minds can draw different inferences or conclusions from undisputed facts, a fact issue is presented. Commercial Standard Insurance Co. v. Davis, 134 Tex. 487, 137 S.W.2d 1, 2 (1940). Although McDavid Pontiac points to evidence to explain why two admittedly dissimilar automobiles had the identical selling price, we conclude that such evidence raised issues properly for the jury to determine. We conclude that in the present case reasonable minds could draw different inferences or conclusions from undisputed facts. We reach this conclusion because, if the sales prices were identical, the jury could reasonably infer or conclude (1) that the green automobile was represented to have characteristics which it did not ultimately have, i.e., the characteristics of the yellow automobile described in the September 13 sales contract (special issue number nine) and (2) that McDavid Pontiac made an express warranty on September 13 that it would deliver a green automobile equipped as described in the September 13 sales contract (special issue number twelve). Accordingly, we hold that evidence of an identical selling price for both the green and yellow automobiles was sufficient evidence to support submission of special issues numbers nine and twelve and the jury’s findings to these issues. It follows, therefore, and we so hold, that Nix established McDavid Pontiac’s liability under the Act.

Monetary Relief

Next, we turn to the relief afforded Nix by the trial court. The jury found actual damages of $360.20. It was undisputed that Nix made a down payment of $2,118.15 on the green automobile. The trial court awarded Nix judgment for both the actual damages of $360.20 and the consideration paid of $2,118.15 and then trebled both. Awarding both actual damages and restoration of the consideration paid are inconsistent remedies. In Smith v. Kinslow, 598 S.W.2d 910, 915 (Tex.Civ.App.-Dallas 1980, no writ) we put it this way in a case brought under the Act:

Since the Act does not define “actual damages” as that term is used in [§ 17.50(b)(1) ], we interpret this expression to mean common-law damages. United Postage Corp. v. Kammeyer, 581 S.W.2d 716, 722 (Tex.Civ.App.-Dallas 1979, no writ).... On the other hand, restoration of the consideration paid, as authorized by [§ 17.50(b)(3)], is a statutory recognition of the equitable remedy of rescission and restitution, based on the theory that the complaining party may elect to avoid the contract, surrender any benefits received, and recover that he parted with.... Nevertheless, [the two remedies] are mutually exclusive, since one is based on recovery of the benefits under the contract and the other on avoidance of the contract. Consequently, we hold that in a suit for breach of warranty, the complaining party may recover three times his actual damages under subdivision (1) or restoration of the consideration paid under subdivision (3), but not both, (emphasis added) (some citations omitted).

We conclude, therefore, that Nix may not recover for both actual damages and the consideration paid. It follows, and we so hold, that the trial court erred in awarding Nix judgment for both actual damages of $360.20 and consideration paid of $2118.15.

Restoration of the Consideration Paid

In light of various points of error raised by McDavid Pontiac, we must determine whether Nix is entitled to recover under either remedy. First, we consider restoration of the consideration paid. In its fifth point, David McDavid asserts that there was no evidence, or insufficient evidence, to support the remedy of rescission and restoration of the consideration paid because Nix did not at any time offer to return the value of any benefits she received from using the green automobile for approximately one month and driving it 1200 miles. When considering “no evidence” points, we can consider only the evidence and inferences tending to support the jury findings or the judgment awards, as the case may be, and must disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). In reviewing “factually insufficient evidence” points we consider all the evidence, including any evidence contrary to the jury findings. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980).

We conclude that Nix’s demand for return of the consideration paid is not consistent with the rules of law involving the rescission of contracts. Villarreal v. Boggus Motor Co., 471 S.W.2d 615, 619-20 (Tex.Civ.App.-Corpus Christi 1971, writ ref’d n.r.e.). Those rules are found in Mathis Equipment Co. v. Rosson, 386 S.W.2d 854, 869-70 (Tex.Civ.App.-Corpus Christi 1964, writ ref'd n.r.e.):

Before a buyer can avail himself of the right of recission, (assuming that he has proper grounds for the same), he must proceed to give timely notice to the seller that the contract is being rescinded and either return, or, at least offer to return, the property he has received and the value of any benefit he may have derived from its possession. The rule requiring th'e buyer desiring to rescind to take such action is based on the view that before a rescission can be granted, the parties must be placed in status quo, and on the maxim “He who seeks equity must do equity.” The burden of proof is on the party seeking rescission to establish that he is entitled equitably to such relief.

The record in the present case is silent as to any tender, or offer of tender, by Nix to McDavid Pontiac of the value of the benefits Nix received from using the green automobile for approximately one month and driving it 1200 miles. Restoration of consideration is an equitable remedy rather than one at law. See Smith, 598 S.W.2d 915. Consequently, we conclude that Nix failed to meet her burden of proof and must, therefore, be denied the equitable relief of rescission according to the maxim “he who seeks equity must do equity.” Accordingly, we conclude that there was no evidence to support the remedy of rescission and restoration of the consideration paid and sustain McDavid Pontiac’s fifth point. If a “no evidence” point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. Garza, 395 S.W.2d at 823. Applying this principle to the present case, we conclude that the trial court erred in awarding Nix judgment for the consideration paid in the amount of $2,118.15. It follows that we must sustain McDavid Pontiac’s fifth point and reverse the trial court’s judgment insofar as it awards Nix judgment for the consideration paid in the amount of $2,118.15 and render judgment that Nix take nothing as to the amount of consideration paid.

Actual Damages

Second, we consider McDavid Pontiac’s challenges to the award of actual damages of $360.20. In its first point, McDavid Pontiac contends that the damage issue, special issue number eleven, states an incorrect and improper measure of damages. In its second and third points, McDavid Pontiac contends that there was no evidence, or insufficient evidence, to support submission of special issue number eleven or the award of actual damages. Special issue number eleven reads:

Find from a preponderance of the evidence the difference, if any, between the value of the 1979 Pontiac Bonneville V.I.N. 2Q96Y9P258582 delivered to the Plaintiff and the value of the 1979 Pontiac Bonneville V.I.N. 2Q69X9P187663 as represented by the Defendant.

The jury answered “$360.20.” The charge contained the following instruction:

“MARKET VALUE”, “FAIR MARKET VALUE”, “CASH MARKET VALUE” and “FAIR CASH MARKET VALUE” are synonymous expressions. They may be defined as the amount of money that a person desiring to sell, but not bound to do so, could, within a reasonable time procure for such property from a person who desires and is able to buy, but is not bound to purchase the property. It is the amount that could be obtained at private sale and not at a forced or auction sale.

Initially, McDavid Pontiac complains that the issue asks only about the difference between “value.” Nix responds that the instruction covers the failure to inquire in terms of the synonymous expression “cash market value.” Considering the charge as a whole, we conclude that special issue number eleven may be read as inquiring in terms of the appropriate synonymous expression defined in the instruction. Therefore, we conclude that inquiry as to “value” is not fatal in the present case.

McDavid Pontiac, however, further complains of the wording of special issue number eleven and insists that the issue should have been submitted as: “What was the difference, if any, between the cash market value of the ear [Nix] contracted for and the cash market value of the car delivered.” We find no error in asking the jury to determine the difference in the cash market value between the green automobile delivered to Nix and the yellow automobile as represented by McDavid Pontiac in light of our language in Smith, 598 S.W.2d at 912. In Smith, we stated the correct measure of damages for breach of warranty in a case brought under the Act to be: “In the case of a sale of personal property the measure of damages is the difference between the cash market value of the article as delivered and what its value would have been if it had been as warranted.” Accordingly, we conclude that special issue number eleven did not state an incorrect and improper measure of damages. McDavid Pontiac’s first point is overruled.

Next, we consider McDavid Pontiac’s evidentiary challenges to special issue number eleven. McDavid Pontiac tells us in its brief that “[in] the absence of other proof of market value, the price agreed upon by the parties to the sale of personal property may be taken as the market value of that for which the parties contracted,” citing Chrysler Corp. v. Schuenemann, 618 S.W.2d 799 (Tex.Civ.App.-Houston [1st Dist.] 1981, writ ref’d n.r.e.) and Smith. Therefore, there is sufficient evidence of the cash market value of the yellow automobile as represented by McDavid Pontiac — the agreed upon selling price of $10,223.15. With respect to the green automobile delivered to Nix, both the “window sticker” in evidence and testimony establish that the manufacturer’s suggested retail price of that automobile was $9,681.95. The price placed on a good by a vendor is at least some evidence of its market value. Jack Roach Ford v. De Urdanavia, 659 S.W.2d 725, 729 (Tex.App.-Houston [14th Dist.] 1983, no writ). The difference between $10,223.15 and $9,681.95 is $541.20. The jury reduced that amount to $360.20. To do so was their prerogative. Where there is some evidence of damages, the amount of the award must be left to the sound judgment and discretion of the jury. Nickel v. Snider, 484 S.W.2d 940, 943 (Tex.Civ.App.-Corpus Christi 1972, writ ref’d n.r.e.). As a general rule, a reviewing court will not interfere with a jury's determination of the amount to award as damages if there is any probative evidence to sustain the award. Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d 324, 334 (Tex.App.-Houston [1st Dist.] 1982, writ ref’d n.r.e.). We hold, therefore, that there was sufficient evidence to support submission of special issue number eleven and the award of actual damages in the amount of $360.20.

Under the Act, a finding of actual damages by the trier of fact invokes the further provisions of section 17.50(b)(1) reading “[i ]⅞ addition the court shall award two times that portion of the actual damages that does not exceed $1000.” (emphasis ours). Thus, it has been held that section 17.50(b)(1) provides that in addition to actual damages, the trial court shall award twice that portion of the actual damages that does not exceed $1,000.00. Garcia v. Rutledge, 649 S.W.2d 307, 313 (Tex.App.-Amarillo 1982, no writ). Therefore, Nix is entitled to recover $360.20 in actual damages plus an additional award of $720.40 which is “two times that portion of the actual damages that does not exceed $1000.” Accordingly, we must render judgment in favor of Nix for $1,080.60.

Attorney’s Fees

Section 17.50(d) provides “[e]ach consumer who prevails shall be awarded court costs and reasonable and necessary attorneys’ fees.” The jury found that $7,000.00 would be a reasonable attorney’s fee for the services of Nix’s attorneys. The trial court awarded Nix that amount. McDavid Pontiac contends that there was no evidence, or insufficient evidence, of the reasonableness and necessity of Nix’s attorney’s fees. Nix’s attorney testified to the following hourly rate structure for certain clients as follows:

When we first took on this case back in 1980 we were charging clients who could pay for us to handle this type of work at the rate of $65 an hour.
In 1981 our rates were changed to $75 an hour, and in 1983 my rate was changed to $100 an hour for each and every hour of time that I spent on a case where a client had the ability to pay.

The present case went to trial February 14, 1983. Nix’s attorney further testified that he had expended seventy hours on the present case and expressed his opinion “that in this case for the 70 hours of time that had been spent that a fair and usual and reasonable and customary fee for those type of services in Dallas County, Texas, would be $75.00 an hour.” McDa-vid Pontiac’s counsel, called as a witness by Nix, testified:

Q At what rate have you billed your client?
A I billed my client at $75 an hour at the beginning of the case which started back in 1980. I am now billing at the rate of $85 an hour.
Q Do you feel that those rates are reasonable and necessary rates and usual and customary rates in Dallas County, Texas, for the same or similar services?
Á I feel that that is a customary charge in Dallas County, Texas, yes, sir.

Seventy hours times seventy-five dollars cannot equal $7,000.00. Seventy hours times eighty-five dollars cannot equal $7,000.00. It is obvious, however, that the jury seized upon Nix’s attorney’s testimony that “in 1983 my rate was changed to $100 an hour for each and every hour of time that I spent on a case where a client had the ability to pay,” multiplied that hourly rate by seventy and arrived at a finding of $7,000.00. We conclude, however, that testimony as to a rate of $100.00 per hour in existence only weeks before trial for an attorney’s clients having “the ability to pay” does not constitute any probative evidence to support the jury’s finding in the present case. Implicit, however, in the testimony of both counsel is that seventy-five dollars an hour (at least) would be a reasonable hourly rate in the present case. Consequently, we conclude that the testimony of both counsel would be sufficient to support an award of $5,250.00, or seventy-five dollars an hour times seventy hours. Chrysler Corp. v. Schuenemann, 618 S.W.2d at 807 (Testimony on hours spent and hourly charge considered reasonably sufficient to support attorney fee award under the Act). Moreover, TEX.R.CIV.P. 440 vests a court of appeals with the authority to suggest a remittitur “if such court is of the opinion that the verdict and judgment of the trial court is excessive and that said cause should be reversed for that reason only.” A court of appeals may exercise its power to suggest a remittitur when the appellant complains that there is insufficient evidence to support an award and the court of appeals agrees, but finds that there is sufficient evidence to support a lesser award. See Baker Marine Corp. v. Moseley, 645 S.W.2d 486, 490-91 (Tex.App.-Corpus Christi 1982, writ ref'd n.r.e.). We conclude that in the present case there is sufficient evidence to support a lesser award than $7,000.00, to wit, $5,250.00. Accordingly, we condition our affirmance of the attorney’s fee award in this case on appellee’s filing a remittitur in the amount of $1,750.00, plus any applicable interest.

Injunctive Relief

By crosspoint, Nix contends that the trial court abused its discretion in refusing to permanently enjoin McDavid Pontiac from:

1. having customers sign retail installment agreements in blank;
2. representing to customers that retail installment agreements confer or involve rights, remedies or obligations which they do not have or involve;
3. representing to customers that they will deliver an automobile of a particular standard, quality or color or which has certain characteristics or uses which these automobiles do not have; and
4. knowingly making false or misleading statements of fact concerning the standard, quality, color, use, characteristics or equipment an automobile has when it does not have same.

Section 17.50(b)(2) provides “[i]n a suit filed under this section, each consumer who prevails may obtain ... an order enjoining such acts or failure to act.” In Smith, 598 S.W.2d at 915 we noted:

We recognize that since § 17.50(b) is not phrased in the disjunctive, the remedies enumerated in its four subdivisions are not expressly made mutually exclusive. Thus, treble damages under subdivision (1) may not preclude an injunction under subdivision (2) restraining future deceptive trade practices, (emphasis added).

Section 17.50(b), however, speaks of injunctive relief a prevailing consumer may obtain; not shall obtain. Thus, the trial court had discretion to grant or deny injunctive relief. Nix argues that, since the jury verdict was in her favor and McDavid Pontiac’s conduct grossly negligent and malicious, the trial court abused its discretion in denying the injunctive relief sought. Historically, injunctive relief is designed to deter, not to punish. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 62, 95 S.Ct. 2069, 2078, 45 L.Ed.2d 12 (1975). We conclude that the relief sought is designed to punish McDavid Pontiac for the manner in which it dealt with Nix. Moreover, we conclude that absent a showing that the acts sought to be enjoined were occurring as to other consumers or that McDavid Pontiac intended to do those acts in the future, a permanent injunction forbidding future acts would be improper. Injunctions are issued only to prevent imminent harm. Chacon v. Granata, 515 F.2d 922, 925 (5th Cir.1975), cert. denied, 423 U.S. 930, 96 S.Ct. 279, 46 L.Ed.2d 258 (1975); Lloyd v. Alaska Worldwide, Inc., 550 S.W.2d 343, 348 (Tex.Civ.App.-Dallas 1977, no writ); Wooten v. Clark, 276 S.W.2d 391, 394 (Tex.Civ.App.-Austin 1955, no writ). We conclude, therefore, that the trial court correctly denied the permanent injunctive relief sought by Nix. It follows, and we so hold, that the trial court did not abuse its discretion in denying the injunctive relief sought by Nix.

In view of our disposition of this appeal, we consider it unnecessary to address McDavid Pontiac’s other points of error. We affirm the trial court’s judgment insofar as it denies Nix the permanent injunc-tive relief sought. We reverse the trial court’s judgment insofar as it awards Nix the sum of $6,435.05. We render judgment in favor of Nix and against David McDavid in the amount of $1,080.60 plus interest thereon at the rate of nine (9%) percent per annum from May 2, 1983, the date the trial court rendered its judgment. With respect to attorney’s fees, the trial court’s judgment will be reformed and affirmed if within twenty days from the date of this opinion Nix files a remittitur of $1,750.00, plus any applicable interest. If this remittitur is not filed timely, the trial court’s judgment for attorney’s fees will be reversed, and the issue of attorney’s fees will be severed from the remainder of the case and remanded to the trial court for trial. All costs in this court and in the trial court are taxed against McDavid Pontiac.

ON FAILURE TO FILE REMITTITUR

Nix did not file our suggested remittitur. Accordingly, that portion of the judgment awarding Nix attorney’s fees is reversed, and the issue of attorney’s fees is severed from the remainder of the case and remanded for retrial. All costs in this court and in the trial court before this appeal are taxed against McDavid Pontiac.

      . Since actual damages in the present case are less than the $1,000 ceiling in section 17.-50(b)(1), we do not reach the new car dealer inflation factor calculations required by TEX. REV.CIV.STAT.ANN. art. 4413(36), § 6.06(b) (Vernon Supp.1984).