author: EVANS, Chief Justice.

text:
    PRODECO EXPLORATION, INC. and Adobe Oil & Gas Corporation, Appellants, v. Gayl Lauderdale WARE, Appellee.
    No. 01-84-0514-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 20, 1984.
    Rehearing Denied Jan. 28, 1985.

      Norm Riedmueller, Krist, Kinney & Ried-mueller, Houston, for appellants.
    William V. Wade, Weitinger, Steelham-mer & Tucker, Houston, Clay A. Cornett, Hofheinz, Harpold, McDonald & Fitzgerald, Houston, for appellee.
    Before EVANS, C.J., and DOYLE and BULLOCK, JJ.
   OPINION

EVANS, Chief Justice.

The appellant, Adobe Oil & Gas Corporation, brought this action for declaratory relief, alleging that the appellee, Gayl Lauderdale Ware, was not entitled to certain monies under an oil and gas lease. Ware counterclaimed, seeking a declaratory judgment in her favor and also filed a “Motion to Require Payment of Royalties into the Court Registry.” After a hearing, the trial court took the matter under advisement, and later entered the order granting Ware’s motion.

Adobe is the operator and owner of a working interest in a producing leasehold, in which Ware asserts a royalty interest. Although two other working interest owners, James B. Cornett, II and Prodeco Exploration, Inc., have intervened in the proceedings, the order in question applies only to Adobe. Therefore, this appeal involves only the issues between the two original parties to the suit, Adobe and Ware.

The threshold question is whether this court has jurisdiction to consider the appeal. In deciding this question, we must determine whether the order is interlocutory in nature, and nonappealable.

The courts of appeal have no jurisdiction to hear appeals from interlocutory orders, unless specifically authorized by statute. Henderson v. Shell Oil Co., 143 Tex. 142, 182 S.W.2d 994, 995 (1944). This court does have jurisdiction to review orders which are injunctive in nature, Tex. Rev.Civ.Stat.Ann. art. 4662 (Vernon Supp. 1984), and if a portion of an order is injunc-tive, then that part is reviewable, even though a portion of it may be interlocutory and nonappealable. Wood v. Wood, 585 S.W.2d 761, 762 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ dism’d).

A portion of the order in question directs Adobe to deposit the sum of $80,000 and future monthly production payments into the registry of the court. The trial court has the inherent authority to direct Adobe to deposit disputed funds into the registry of the court pending the outcome of the litigation, Castillejo, v. Camero, 414 S.W.2d 431 (Tex.1967), and we find, in that respect, that the court’s order was interlocutory and nonappealable. Id. at 433.

However, the court’s order further directed Adobe to tender into the registry of the court “a suitable bond with surety in the face amount of $100,000 and made payable to the District Clerk of Burleson County, Texas.” In this respect, the order was injunctive, since it required Adobe to take affirmative action to secure the performance of the court-imposed obligation to make the required deposit. Accordingly, this court has the authority to review that portion of the trial court’s order.

We have determined that the trial court’s order requiring Adobe to file a bond is invalid on its face, because the order does not meet the essential requirements of the Texas Rules of Civil Procedure. Specifically, the rules require that the order must set forth the reasons for its issuance, Tex.R.Civ.P. 683, and the order in question is clearly deficient in this respect.

We dismiss for want of jurisdiction that part of the appeal related to the portion of the order requiring Adobe to deposit the disputed funds into the registry of the court. Such ruling, however, is without prejudice to the rights of any third parties to assert claims in the trial court with respect to such disputed funds. We reverse the trial court’s order, insofar as it directs Adobe to file a $100,000 bond, and in that respect we order the dissolution of the trial court’s order.

Dismissed, in part, for want of jurisdiction, and, in part, reversed and remanded with directions.


source: Caselaw Access Project

author: DUGGAN, Justice.

license: Public Domain

text:
    Donald DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-00345-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 27, 1984.

      William W. Vance, Vance, Bruchez & Goss, Bryan, for appellant.
    Bill Turner, Brazos County Dist. Atty., Rodney Boyles, Brazos County Asst. Dist. Atty., Bryan, for appellee.
    Before EVANS, C.J., and DUGGAN and JACK SMITH, JJ.
   OPINION

DUGGAN, Justice.

After finding appellant guilty of burglary of a habitation, the jury made an affirmative finding at the punishment hearing that he exhibited a deadly weapon during the commission of the offense, and assessed his punishment at thirty-five years confinement. Appellant urges six grounds of error.

Appellant first contends that the trial court erred in overruling his motion to dismiss the indictment for violation of the Speedy Trial Act.

When appellant’s pro se speedy trial motion was heard on March 2, 1984, appellant testified that he was arrested on September 6, 1983, and incarcerated from that time until the date of the hearing. The trial court took judicial notice of the facts that (1) more than 120 days had elapsed from the date of arrest and incarceration until the date of the hearing, and (2) the state’s announcement of ready was signed and filed October 25, 1983. The fact of the filing was also entered on the docket sheet. Appellant’s request for dismissal was denied.

Texas Code Crim.P. art. 32A.02 (Vernon Supp.1984) (the Texas Speedy Trial Act) addresses prosecutorial delay rather than delay resulting from the judicial process, Barfield v. State, 586 S.W.2d 538, 541 (Tex.Crim.App.1979), and an announcement of ready by the state within the 120 day time period applicable for felonies constitutes a prima facie showing that the state was ready. Ostoja v. State, 631 S.W.2d 165, 167 (Tex.Crim.App.1982). This prima facie declaration of readiness can be rebutted by evidence showing that the state was not ready for trial during the Act’s time limits. Barfield at 542. The state presented evidence of its announcement of ready at the motion hearing, and appellant offered no evidence in rebuttal. The requirements of the Speedy Trial Act were met, and appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in overruling his four objections to improper pros-ecutorial jury argument at the punishment phase of the trial.

The trial court sustained appellant’s first objection to the following state’s argument:

One of those aspects is that it was a very well conceived crime. You heard from the witnesses that this was a particular time in the day, in a very nice neighborhood of this town, very exclusive neighborhood, where people were gone out of their homes, where there were housewives and children in many of the homes. And those people were gone between 8:00 and 8:30 everyday. This gave the Defendant time to go into a home and get out in virtually minutes.
MR. VANCE: Your Honor, I am going to object at this time to the argument. There has been no testimony to any conceived plan or there’s been no testimony as to what type of neighborhood, and I would object.

Appellant’s motion to instruct the jury to disregard these comments by the prosecutor was granted, but his motion for mistrial was denied. The prosecutor’s argument continued as follows:

I don’t think it’s an accident. I don’t think the evidence shows it was an accident.
MR. VANCE: Your Honor, I object to that. There’s no evidence as to — he’s, again, alluding to a preconceived plan by arguing it wasn’t an accident. That was the same objection that I objected to, as to him arguing outside of the record. He’s just paraphrasing it in another way.

This objection was also sustained by the court, but appellant’s counsel made no motion to instruct the jury to disregard.

The prosecutor continued his argument as follows:

An [sic] in today, in the 1980’s, I think we have come to a point in time where the prisoners in society tend to be the citizens of society.
MR. VANCE: Your Honor, I am going to object to that as an improper plea of law enforcement.

This objection was overruled.

Four general areas of acceptable jury argument are: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and, (4) plea for law enforcement. Denison v. State, 651 S.W.2d 754, 761 (Tex.Crim.App.1983). While the prosecuting attorney is permitted in argument to draw from the facts in evidence all reasonable, fair, and legitimate inferences, he may not use jury argument to get before the jury, either directly or indirectly, evidence which is outside the record. Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App.1983). However, unless argument outside the record is extreme, manifestly improper, or injects new harmful facts, it does not constitute reversible error. This rule is applied by looking to the facts of each case and viewing the probable effect on the minds of the jurors. Thomas v. State, 621 S.W.2d 158, 164 (Tex.Crim.App.1981). If the prosecutor does argue outside the record and injects personal opinion, any error is cured when the trial court sustains appellant’s objection and instructs the jury to disregard the statements, Boyd v. State, 643 S.W.2d 700, 707 (Tex.Crim.App.1983), unless it appears that the argument is clearly calculated to inflame the minds of the jurors and is of such character as to suggest the impossibility of withdrawing the impression produced on the juror’s minds. Rodriguez v. State, 646 S.W.2d 539, 542 (Tex.App.—Houston [1st Dist.] 1982, no pet).

Appellant’s objection to the first instance of alleged improper argument was sustained and his motion to instruct the jury to disregard the prosecutor’s remarks was granted. From a review of the record, we conclude that these remarks were not of such a nature as to be clearly calculated to inflame the minds of the jurors, and any error was cured by the court’s instruction. An eyewitness testified that she saw appellant walk along the street in front of the burglarized house and then go up its driveway; that the neighborhood was one of single family houses with children; that the time was about 8:10 or 8:20 a.m.; that it is usual or customary for parents to be taking their children to school at this time daily; that she had just seen Mrs. Perkins leave the house to take her children to school; and that Mr. Perkins usually left at 7:30 a.m.

As to the second instance of improper jury argument, appellant’s objection was sustained, and no motion was made to instruct the jury to disregard, nor did appellant request a mistrial. Appellant obtained all the relief he sought, and no error is preserved. Boyd v. State, 643 S.W.2d at 707.

The third objection to the prosecutor’s argument was that it was an improper plea for law enforcement. The remarks in question can be seen as reasonable inferences from the evidence adduced and summarized above, and were thus a proper plea for law enforcement during punishment stage argument. Denison v. State, 651 S.W.2d at 763.

The final complaint of improper jury argument was as follows:

And you know he took a calculated risk, one that he measured in his own mind, one that he decided, just as you decided to go to work everyday—
MR. VANCE: Your Honor, I am going to object at this time as being a comment on the Defendant’s failure to testify ... on what his attitudes were, as to what he thought.

This objection was also overruled by the trial court.

It is improper for a prosecutor to comment upon a defendant’s failure to testify, Tex.Code Crim.P. art. 38.08 (Vernon 1966), but for such comment to be error, it must be a direct allusion to the accused’s failure to testify. Hawkins v. State, 660 S.W.2d 65, 79 (Tex.Crim.App.1983). The prosecutor’s argument was neither a direct allusion to the accused’s failure to testify nor of such character that the jury would naturally and necessarily take it to be a comment on his failure to testify. Owen v. State, 656 S.W.2d 458, 459 (Tex.Crim.App.1983). Eye witness testimony supplied the facts as to appellant’s actions just prior to the burglary, and the argument did not call the jury’s attention to the absence of evidence that only the defendant’s testimony could supply. Banks v. State, 643 S.W.2d 129, 134 (Tex.Crim.App.1982), cert. denied, — U.S. -, 104 S.Ct. 259, 78 L.Ed.2d 244 (1983). Appellant’s second ground of error is overruled.

Appellant’s third ground of error alleges that his due process and equal protection of the law rights were violated by the prosecutor’s actions in peremptorily challenging all black members of the jury panel.

On appellant’s motion, the trial court took judicial notice of the facts that (1) the state peremptorily struck all prospective jurors who were black; (2) all twelve jurors chosen in the case were white; and, (3) the appellant is black. Appellant’s motion to dismiss the jury panel chosen because of the state’s systematic exclusion of all blacks from the jury was denied. No other evidence was presented by appellant to support this motion.

The use of peremptory challenges to strike qualified blacks is not a prohibited systematic exclusion of blacks in petit jury selection. Evans v. State, 622 S.W.2d 866, 869 (Tex.Crim.App.1981). The burden is on the appellant to show that there has been a systematic use by the state of peremptory challenges against blacks over a period of time, and not just in the instant case. Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965). Since appellant presented no evidence to meet this burden, his motion to dismiss the jury panel was properly denied, and his third ground of error is overruled.

Appellant’s fourth and sixth grounds of error concern two facets of one procedural event of the trial, and we therefore consider them together.

At the punishment phase of trial, the court submitted to the jury the issue of whether appellant used or exhibited a deadly weapon during the commission of the offense, and the jury answered affirmatively. The indictment alleged a prior felony conviction for enhancement purposes, but did not allege the use or exhibition of a deadly weapon, either in connection with the commission of the primary offense or as a separate paragraph similar to the enhancement allegation.

Appellant complains in his fourth ground of error that the indictment is fundamentally defective for failing to notify him of the use or exhibition of a deadly weapon. His sixth ground of error asserts that the court erred in charging the jury at the punishment phase to find whether a deadly weapon was used or exhibited during the commission of the offense.

Appellant concedes that the indictment, as worded, correctly charges the primary offense of burglary of a habitation. He contends, however, that since he faces punitive consequences from an affirmative finding that he used or exhibited a deadly weapon, i.e., the lengthening of his confinement under any sentence imposed by the restriction of his ability to obtain good time credit, the state should be required to include such language in the indictment. He urges that harm has been shown and that his “rights under due process” have been denied by the court’s failure to require the state to include “use or exhibition of a deadly weapon” in the indictment. He concedes that he has no case authority on point. He suggests that the situation is analogous to the requirement elsewhere that, if statutory language is not completely descriptive of the offense charged, and greater particularly is required, a mere tracking of the statute is insufficient, citing Haecker v. State, 571 S.W.2d 920 (Tex.Crim.App.1978). We reject the analogy since use or exhibition of a weapon is not one among several descriptive manners or means of commission of the primary offense.

Appellant objected, during preparation of the punishment charge, to the inclusion of the inquiry concerning his use or exhibition of a deadly weapon, because it was not set out in the indictment. He further urges that since the inquiry concerned the circumstances of the case in chief, it should have been submitted at the guilt or innocence phase of trial, if at all.

Only in Tex.Code Crim.P. art. 42.12 (Vernon Supp.1984) do we find mention of an affirmative finding as to the use or exhibition of a deadly weapon during the commission of an offense or during immediate flight therefrom. Because this section deals with the alternatives available to a jury or a court in imposing, suspending, or probating a sentence after conviction, it is appropriate that an inquiry affecting punishment alternatives be determined at this phase of trial.

Article 42.12 does not state when, during the bifurcated criminal trial, a jury is to be charged to find whether a weapon was used or exhibited during the commission of an offense. Section 3f of art. 42.12, states in pertinent part as follows:

(a) The provisions of Sections 3 and 3c of this Article [listing situations in which a judge may grant probation] do not apply:
(1) to a defendant adjudged guilty of an offense defined by the following sections of the Penal Code:
(A) Section 19.03 (Capital murder);
(B) Section 20.04 (Aggravated kidnapping);
(C) Section 22.021 (Aggravated sexual assault);
(D) Section 29.03 (Aggravated robbery); or
(2) to a defendant when it is shown that the defendant used or exhibited a deadly weapon as defined in section 1.07(a)(ll), during the commission of a felony offense or during immediate flight there-from_ Upon an affirmative finding that the deadly weapon the defendant used or exhibited was a firearm, the court shall enter that finding in its judgment. (Emphasis added).

Sections 3, 3a, and 3f of art. 42.12, when read together, suggest that the inquiry is a proper one for the punishment phase of the trial, not for the guilt or innocence phase.

Barecky v. State, 639 S.W.2d 943 (Tex.Crim.App.1982), cited by appellant, is not in point. There, as in our case, the indictment did not contain an allegation of the use or exhibition of a deadly weapon. After the jury found Barecky guilty, and assessed his punishment, the court made an affirmative finding that he had used a deadly weapon. The Court of Criminal Appeals reversed, holding the trial court’s action to be improper “in the absence of such an ‘affirmative finding’ by the appropriate trier of fact.” Id. at 945. Barecky does not state at which stage of trial the affirmative finding by the trier of fact must be made.

Neither was the issue decided in Ex parte Moser, 602 S.W.2d 530 (Tex.Crim.App.1980), where the defendant was indicted for intentionally and knowingly causing the death of a named individual by “shooting him with a pistol.” There, the jury found the defendant guilty of murder “as charged in the indictment,” assessed punishment at ten years’ confinement, but recommended that the defendant be placed on probation. The trial court stated in its judgment as follows:

The jury verdict in this case being an affirmative finding that the defendant ... used a firearm during the commission of the offense ... and the defendant having been granted probation, the Court accordingly, under the provisions of Art. 42.12f(b) ..., orders that the Defendant be confined in the Texas Department of Corrections....

Id. at 532.

The court held that, in light of the allegations in the indictment, the jury verdict necessarily included a finding that a deadly weapon was used during the commission of the offense and that there was no need for the issue to be presented to the jury.

We should not be understood to hold that this method was the only, or even the better, way to make such a finding. Different indictments, instructions, or forms of verdict obviously might make such a method inadequate to comply with the statute....

Id. at 533.

Appellant has shown no authority to support his contention that the trial court erred in charging the jury to make the finding at the punishment phase of trial. Neither has he shown how he was harmed by the court’s requiring the jury finding to be made at the final phase. The affirmative finding was a punishment/sentencing concern, and was not a part of the state’s proof of the primary offense. Deferring the inquiry until the punishment phase not only avoided any suggestion to the jury as to the gravity of the “use or exhibition” factor in determining guilt or innocence but also averted any inferential comment on the weight of the evidence that might encourage a finding of guilt. Without a showing of harm, the error, if any, is harmless. The issue was properly determined by the jury which was the trier of fact. Ex parte Thomas, 638 S.W.2d 905 (Tex.Crim.App.1982). Cf. Pena v. State, 630 S.W.2d 686 (Tex.App.—Houston [1st Dist.] 1981, rev’d on other grounds, 640 S.W.2d 295 (Tex.Crim.App.1982). Appellant’s fourth and sixth grounds of error are overruled.

Appellant’s fifth ground of error contends that the trial court erred in allowing evidence of a prior conviction during the punishment phase of the trial.

Appellant’s motion to quash the enhancement paragraph of the indictment alleged that:

(1) the conviction upon which the State relies for enhancement (Cause No. 12,-962) is void because the trial court violated the provisions of art. 42.12, sec. 3(4), Tex.Code Crim.P., in that the original sentencing judge was not the same judge who later probated the sentence; and, (2) there exists a variance in the indictment, the plea of guilty, and the order revoking probation as to when the conviction in Cause No. 12,962 became final.

The prior conviction alleged in the indictment, and upon which the state relied for enhancement purposes, was in Cause Number 12,962, where the judgment was signed by the Honorable John L. Placke as presiding judge of the 272nd District Court of Brazos County, Texas. Both the sentence form signed by Judge Placke on November 24, 1980, and the guilty plea form signed earlier by the appellant on November 13, 1980, reflected that appellant was convicted in that cause on November 13, 1980. Likewise, the order granting shock probation after sentence and the later order revoking probation, both signed by Honorable J. Bradley Smith as presiding judge, also reflect that appellant was convicted on November 13, 1980.

Section 5 of art. 42.12, of the Code of Criminal Procedure was amended, effective September 1, 1981, to add sec. 5(a), which provides in pertinent part that “[o]nly the judge who originally sentenced the defendant may suspend execution thereof and place the defendant under probation....” At the time appellant was granted shock probation, sec. 5 did not include this limiting language. Rather, sec. 3e(a) of art. 42.12, then applicable, stated that “the judge of the court that imposed such sentence may, ... suspend further execution of the sentence imposed and place the defendant on probation....” (Emphasis added). We reject appellant’s argument that only the judge who originally sentenced him could grant him shock probation. The limitation was created only by the 1981 amendment, and before its effective date any judge presiding in the sentencing court, whether sitting by assignment or otherwise, could grant shock probation to a defendant sentenced by that court. This portion of appellant’s fifth ground of error is without merit.

However, the court lacked jurisdiction to grant appellant shock probation at the time it entered its order doing so. As then in effect, art. 42.12, sec. 3e(a) continued the jurisdiction of a court in which a sentence was imposed requiring confinement in the Texas Department of Correction “for 120 days from the date the execution of the sentence actually begins.”

Appellant was sentenced on November 13, 1980, and was delivered to the Department of Corrections on December 4, 1980. The purported grant of shock probation on April 6, 1981, more than 120 days after execution of appellant’s sentence actually began, was done at a time when the court was without jurisdiction to do so. Adams v. State, 610 S.W.2d 780, 781 (Tex.Crim.App.1981).

Appellant argues that since the second judge was without authority to grant him shock probation, the conviction was void and should not have been allowed before the jury for impeachment or any other purpose. He cites no authority to support this proposition. Appellant’s conviction is not void; only the purported grant of shock probation is void for failure to comply with the time limits.

Appellant is in effect attempting a collateral attack on the judgment of conviction on the grounds that since he was erroneously granted shock probation, the conviction was therefore not final. If the court had validly granted him shock probation, the conviction would not be a final one. If appellant had been on valid shock probation which was thereafter revoked, the date of the revocation would be the date of the final conviction.

The record does not show that an appeal was pending when appellant was erroneously granted shock probation. Accordingly, the date of final conviction is November 13, 1980, the date sentence actually began, and not December 17, 1982, the date of signing of the order revoking the unauthorized shock probation.

Appellant further contends that the court erred in allowing evidence of this prior conviction because there was a variance between the allegations of the enhancement paragraph and appellant’s plea of guilty as to the date of final conviction in the cause alleged.

The enhancement portion of the indictment states, in pertinent part, that “on the 24th day of November, 1980, ... in Cause Number 12,962, [appellant] was convicted of a felony, ... and said conviction became final prior to the commission of the aforesaid [primary] offense....” The record shows that in Cause Number 12,962 the written plea bargaining agreement, the jury waiver, the stipulation of evidence, the judicial confession, and waiver of time for sentencing and right to appeal were all signed by appellant on November 13, 1980. While the judgment signed on November 24,1980 does not reflect the date of conviction, the sentence form signed the same day states that the verdict and judgment were “rendered and entered against” appellant on November 13, 1980.

The state concedes that there is a variance between the proof and the allegation of the date of final conviction in the indictment’s enhancement paragraph. Our concern is whether this is a fatal variance.

Allegations of prior convictions used for enhancement should include (1) the court in which the conviction was obtained; (2) the time of the conviction; and, (3) the nature of the offense. Jackson v. State, 633 S.W.2d 897, 898 (Tex.Crim.App.1982). However, a prior conviction for enhancement need not be alleged with the same particularity as must be used in charging the original offense. Watson v. State, 605 S.W.2d 877, 883 (Tex.Crim.App.1980). The purpose of an enhancement allegation is to provide the accused with notice of the prior conviction relied upon by the state in order to avoid surprise. Cole v. State, 611 S.W.2d 79, 82 (Tex.Crim.App.1981). To be material, a variance in allegation and proof must be such as to mislead the party to his prejudice. Burton v. State, 493 S.W.2d 837, 840 (Tex.Crim.App.1973). The enhancement paragraph contained the correct cause number and court number in which the alleged conviction for the prior offense occurred, as well as the correct name of the offense and description of it as a felony. The indictment’s incorrect allegation of the date of final conviction for the prior offense would not have prevented the appellant from finding the record of it and presenting a defense. The variance was not fatal, and appellant’s fifth ground of error is overruled.

The judgment is affirmed.


author: DOYLE, Justice.

text:
    Sheriff Jack HEARD, Appellant, v. The HOUSTON POST COMPANY d/b/a the Houston Post, Appellee.
    No. 01-84-00393-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 27, 1984.
    Rehearing Denied Jan. 24, 1985.

      Mike Driscoll, County Atty. for Harris County, Molly D. Shannon, Bill E. Lee, Harris County Asst. County Attys., Houston, for appellant.
    A. Frank Koury, Alton J. Hall, Jr., Fulbright & Jaworski, Houston, for appellee.
    Before DOYLE, BASS and BULLOCK, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from a permanent injunction against Sheriff Jack Heard (the Sheriff) ordering him to make available to the Houston Post (the Post) access to or a copy of the Offense Report whenever the Post requests it pursuant to its statutory rights under the Texas Open Records Act.

On April 12, 1984, the Houston Post reported allegations that four Harris County Sheriff’s Deputies had brutalized Richard Allen Brittain during his arrest on April 9. The Post requested from the Sheriff’s office on April 12 a copy of the offense report on Brittain’s arrest. The Sheriff’s office denied the request, contending that the report was excepted from disclosure by the Texas Open Records Act, Tex.Rev.Civ. Stat.Ann. art. 6252-17a (Vernon Supp. 1984).

On April 13, 1984, the Houston Post requested and was granted a temporary injunction, which ordered Sheriff Heard to provide the newspaper with a copy of the first page of Brittain’s offense report. A show cause hearing for a temporary injunction was originally scheduled for April 23, 1984. Both parties agreed that the submissions at this hearing would be for an application for a permanent injunction, because the Sheriff indicated he would deny future requests for similar offense report information in all cases.

On May 1, 1984, the court signed a permanent injunction ordering the Sheriff to provide the Post, within three hours of its request, a copy of the Sheriff’s Department offense report containing the following information: 1) the offense committed; 2) the location of the crime; 3) the premises involved; 4) the time of the occurrence; 5) the property involved; 6) the vehicles involved; 7) the description of the weather; 8) a detailed description of the offense in question; and, 9) the names of the investigating officers. The identification and description of the complainant was ordered released only in cases not under active investigation; in cases where the complainant is also the victim of the offense committed; in cases where the identification and description of ,the complainant are evident from the abovementioned nine categories; and in all other cases except where there is an active investigation and the Sheriff’s Department applies to a court and asserts a reasonable likelihood of serious physical harm to the complainant if the complainant’s identity or description were revealed to other than law enforcement agencies.

On May 28, 1984, the Houston Post filed a motion to modify judgment, objecting to that portion of the judgment that limited the release of the identity and description of the complainant. The motion was denied.

On May 25, 1984, Sheriff Heard filed his notice of appeal without an appeal bond, pursuant to Tex.Rev.Civ.Stat.Ann. art. 6252-19b (Vernon Supp.1984). However, the docket sheet of the court shows a $1,000 bond filed on June 11, 1984, apparently fixed by the court.

Appellant now brings two points of error. Appellee has filed a cross-point based on its motion to modify judgment. Appellant’s second point, objecting to the issuance of the permanent injunction, will be discussed first.

In his second point of error, appellant urges that it was error for the trial court to order the Sheriff to deliver a copy of an offense report to the Post and to deliver future copies when requested. Appellant’s brief presents two arguments to support this allegation.

His first argument is that sec. 3(a) of the Texas Open Records Act excludes the offense report from disclosure to the public. It is to be noted that only portions of the offense report were ordered disclosed and not the entire report. These portions are public information as determined by the decision in Houston Chronicle Publishing Co. v. City of Houston, 531 S.W.2d 177, 187 (Tex.Civ.App.—Houston [14th Dist] 1975, writ ref’d n.r.e.), 536 S.W.2d 559 (Tex.1976) (Chronicle I). The information requested by the Houston Post is the same information with which Chronicle I was concerned. Eighteen exceptions are listed in sec. 3(a), and appellant relies on three of them. The exception found in sec. 3(a)(1) is based on confidentiality. The appellant brings forward this exception for the first time on appeal. Arguments raised for the first time on appeal are not properly preserved and cannot be considered by an appellate court. Gray-Taylor, Inc. v. Tennessee, 587 S.W.2d 668, 671 (Tex.1979).

The next exception appellant has relied on is sec. 3(a)(3):

(3)information relating to litigation of a criminal or civil nature and settlement negotiations, to which the state or political subdivision is, or may be, a party, or to which an officer or employee of the state or political subdivision, as a consequence of his office or employment, is or may be a party, that the attorney general or the respective attorneys of the various political subdivisions has determined should be withheld from public inspection;

Section 7 of the Act provides that the Attorney General make a determination as to the status of information within the exceptions, when a governmental body requests a determination that has not previously been made. This section also states that if a decision is not requested, there is a presumption that the information is public. The Attorney General’s opinions construing the Open Records Act are not binding on the courts, but are to be given great weight because the legislature has required a written opinion when a determination is requested from the Attorney General. City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 322 (Tex.App.—Houston [1st Dist.] 1984, no writ) (Chronicle II).

The opinions construing sec. 3(a)(3) indicate that this exception applies only when a lawsuit has been filed or if litigation is reasonably anticipated. Op.Atty. Gen., No. ORD-350 (1983); No. ORD-288 (1981); No. ORD-143 (1976). Although appellant’s brief outlines the steps in the criminal justice system, there is nothing specific to indicate that litigation is reasonably anticipated with respect to these nine items.

Appellant next relies on sec. 3(a)(8):

(8) records of law enforcement agencies that deal with the detection and investigation of crime and the internal records and notations of such law enforcement agencies which are maintained for internal use in matters relating to law enforcement;

Appellant also relies on Ex parte Pruitt, 551 S.W.2d 706 (Tex.1977). This case centered on an active arson investigation, and appellant mistakenly concludes that the district court could not order the production of records because of the investigation. The court could not order the production of detailed, investigatory records. However, the court could under the release of basic information, similar to that in Chronicle I. Ex parte Pruitt, 551 S.W.2d at 709-10. Appellant disapproves of the decision in Chronicle I because it holds the offense report was excluded by sec. 3(a)(8), but then balances the competing interests and orders information from the report released.

Opinions of the attorney general construing sec. 3(a)(8) indicate that information is protected by this exception if there is a showing that release of the information would unduly interfere with law enforcement. Op.Atty.Gen., No. ORD-252 (1980); No. ORD-333 (1983).

Appellant, however, does make an argument, which is not supported by any law, that releasing portions of the offense report may result in harm to the individual under investigation.

In discussing the potential for massive and unjustified damage to the individual, the court in Chronicle I found that the right of privacy is not an unlimited one and that newsworthy occurrences may justify the invasion of the lives of private citizens. Chronicle I, 531 S.W.2d at 188.

Appellant’s second argument is that the press has no constitutional right to have access to particular government information. The case relied on is Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978) and involved a broadcaster seeking access to inmates in a county jail. The holding in that case was that “the media have no special right of access ... different from or greater than that accorded the public generally.” Id. at 16, 98 S.Ct. at 2597. In a concurring opinion, it was noted that “[fjorees and factors other than the Constitution must determine what government-held data are to be made available to the public.” Id. The Post is not seeking a special right of access, but the same access due the general public to information about crime in the community.

Appellant uses a federal statute, which is similar to the Texas statute, and the cases construing the federal statute to further support its position for denying access to government records. Appellant failed to note the section in the Freedom of Information Act which upholds disclosing portions of records. See Industrial Foundation of the South v. Texas Industrial Board, 540 S.W.2d 668 (Tex.1976).

Appellant contends Chronicle I is inapplicable to this case. We disagree. The same items of information are at issue. These items are contained in records of law enforcement agencies, and construction of the Texas Open Records Act and the constitutional right of access to information concerning crime in the community are in issue. Appellant has failed to present facts or law that would require a finding that information already held to be public should not be made public in this case. Appellant’s second point of error is overruled.

Appellant, in his first point of error, contends that the trial court erred in requiring him to file an appeal bond. In order to perfect an appeal, Rule 354 of the Texas Rules of Civil Procedure requires a cost bond payable to the appellee or a deposit with the clerk. The rule allows for statutory exemptions.

Appellant bases his claim of statutory exemption on Tex.Rev.Civ.Stat.Ann. art. 6252-19b (Vernon Supp.1984). This Act, “an Act relating to the liability of a political subdivision for certain acts of officers and employees,” is applicable where damages arise out of a cause of action for negligence. In such a cause of action, no cost bond is required.

Appellant contends that the cause of action herein is one for negligence. This argument is not supported by the facts. Where a temporary injunction is not based upon any allegations or proof of negligence, art. 6252-19b has been held inapplicable. Attorney General Opinion No. MW-158 (1980). Article 6252-19b specifically distinguishes a wilful or wrongful act from negligence. In its original pleading, the Post sought “access to the information wrongfully and without justification denied them by defendant.” Thus, the statute clearly is not applicable. Appellant’s first point of error is overruled.

In appellee’s cross-point, it complains that the trial court was bound to fully follow the decision in Chronicle I and order the release of the complainant’s name in all cases. In our case, the trial court created four categories of cases in which the identification and description of the complainant should be released:

(a) in all cases not under active investigation; (b) in all cases where the complainant is also the victim of the offense committed; (c) in all cases where the identification and description of the complainant is otherwise evident from the other nine categories of information ordered to be produced above; and (d) in all other cases except eases of active investigation in which the Harris County’s Sheriff’s Department within twenty-four (24) hours of the request applies to a court of competent jurisdiction and asserts in a verified pleading its genuine belief that there is a reasonable likelihood that serious physical harm would occur to the complainant if the complainant’s identity or description was revealed to other than law enforcement agencies.

Categories (a) and (d) are already established as exceptions under sec. 3(a)(8) of the Texas Open Records Act, through the opinions of the Attorney General and the cases applying the opinions, e.g., Ex parte Pruitt, 551 S.W.2d 706 (Tex.1977); ORD No. 350 (1983); ORD No. 371 (1983). Categories (b) and (c) are apparent and need not be enumerated. Occasions may arise when the release of complainant’s identity would be harmful. On those occasions, it would be proper for the Sheriff, within 24 hours of the request, to apply to a court of competent jurisdiction setting out the harm.

The court found in Chronicle II that “[t]he question of the type of information which is subject to disclosure by reason of the Open Records Act was determined in Chronicle I. The passage of time will not change the type of information which must be disclosed.” Chronicle II, 673 S.W.2d at 321. Because this information has already been found not to be protected by an exception, the trial court should have followed the decision in Chronicle I. Appellee’s cross-point is sustained. •

We accordingly reverse that portion of the trial court’s judgment which restricts the release of the complainant’s name in only the four enumerated situations. We modify the judgment to require the Sheriff or his duly authorized representative to provide the Post, within three (3) hours after the information is available with the name and description of the complainant in all cases not subject to the statutory exception.

As reversed and modified, the judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    David E. VILLARREAL, Appellant, v. Maria Oralia VILLARREAL, Appellee.
    No. 13-83-333-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 28, 1984.

      Bill Blackburn, Corpus Christi, for appellant.
    James L. McManus, Corpus Christi, for appellee.
   OPINION

PER CURIAM.

This is a child custody case. Appellee, the mother of the three minor children who are the subject matter of this case, brought this action seeking a change of managing conservatorship of the three children. Trial was to the court which ruled in favor of the appellee and named appellee managing conservator of the three children. Appellant has brought this appeal, seeking to set aside the trial court’s ruling and to be reinstated as managing conservator of the children. We reverse and render.

In March of 1982, appellee filed suit for divorce against appellant. In her Original Petition, appellee sought to be named temporary managing conservator of the parties’ three minor children. However, at the hearing on appellee’s request to be named temporary managing conservator, the trial court named appellant temporary managing conservator. Apparently, appellee made no further attempt to be named managing conservator of the children prior to the filing of this cause of action. The final decree of divorce reflects that appellant and appellee agreed that appellant be named managing conservator of the children. The final decree was dated Decern-ber 21, 1982. On April 14, 1983, appellee filed this cause wherein she sought a change of managing conservatorship. Since the motion to modify was filed well within the one-year period referred to in TEX.FAM.CODE ANN. § 14.08(d) (Vernon Supp.1984), appellee’s motion was accompanied by the requisite affidavit in support of the motion to modify.

The grounds for appellee’s motion to modify are found in her testimony at the hearing. These grounds are:

Appellant intends to move the children to California;
Appellant has been verbally abusive to appellee in front of the children;
Appellant has left the children alone without adequate supervision;
Appellant has solicited the children to spy on appellee;
Appellant has removed the children from the community house.

In its findings of facts and conclusions of law, the trial court found that:

Appellant intended to remove the children to California permanently;
The appellant’s action in removing the children to California would cause harm to the children;
Appellant engaged in a variety of activities which had caused emotional injury to the children;
Appellant had left the children alone on occasion without supervision;
Appellee had adequate parental skills;
The children’s present environment with the father as managing conservator, may endanger their health and significantly impair their emotional development;
The circumstances of the children and the parent has substantially changed since the entry of the decree;
The retention of the present managing conservator would be injurious to the welfare of the children;
Appointment of appellee as managing conservator would be a positive improvement for the children.

Based on these findings and conclusions, the trial court entered judgment naming appellee managing conservator of the three children, appellant possessory conservator, ordering appellant to pay child support, and providing for visitation with the children by the appellant.

In his points of error one through fourteen, appellant attacks the factual sufficiency of the trial court’s findings which serve as the basis for the trial court’s judgment. In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App.—Corpus Christi 1981, writ ref’d n.r.e.); Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

There are two fundamental guidelines which we observe in reviewing child custody cases. “The paramount concern in the custody action is the welfare and best interest of the child. This is the primary standard upon which the trial court shall determine questions of managing conserva-torship, possession, support of and access to the child. In determining this, the trial court shall consider all the circumstances of the parents”. Hamann v. Morentin, 660 S.W.2d 645 (Tex.App.—Ft. Worth 1983, no writ); See Griffith v. Griffith 462 S.W.2d 328 (Tex.Civ.App.—Tyler 1970, no writ); TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1984). We also recognize that a trial court has broad discretion in a motion to modify and the court’s decision will be overturned only upon a showing of abuse of discretion. Jeffers v. Wallace 615 S.W.2d 252 (Tex.App.—Dallas 1981, no writ); See Davis v. Duke, 537 S.W.2d 519 (Tex.Civ.App.—Amarillo 1976, no writ); Davis v. Davis 499 S.W.2d 922 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ).

The statutory authority for the trial court’s judgment herein is found in TEX. FAM.CODE ANN. § 14.08(c) (Vernon Supp.1984). Section 14.08(c) provides in part that:

“After a hearing, the court may modify and order a portion of a decree that:
1. Designates a managing conservator if:
(A) The circumstance of the child, managing conservator, possessory conservator, or another party affected by the order of the decree had materially and substantially changed since the entry of the order or decree to be modified; and
(B) The retention of the present managing conservator would be injurious of the welfare of the child; and
(C) The appointment of the new managing conservator would be a positive improvement for the child...”

In Jones v. Cable 626 S.W.2d 734 (Tex.1981) the Supreme Court analyzed Section 14.08(c) as follows:

“Section 14.08(c)(1) can be paraphrased into three inquiries: Before a court can modify a custody order, there (1) must be change in the circumstances of the child or parent so material and substantial that (2) retention of the present managing conservator would be injurious to the welfare of the child and (3) the appointment of a new managing conservator would be a positive improvement for the child.”

The requirements of a change of circumstances are based upon the doctrine of res judicata. The previous determination of custody constitutes an adjudication of the “best interest” of the child required by TEX.FAM.CODE ANN. § 14.07(a) (Vernon Supp.1984). To avoid the affect of the former order or judgment determining custody, the party seeking the modification of conservatorship must show a material and substantial change in condition. Knowles v. Grimes, 437 S.W.2d 816 (Tex.1969); Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963). “The final judgment in a custody proceeding is res judicata of the best interest of a minor child as to the condition then existing.” Gibbs v. Greenwood, 651 S.W.2d 377 (Tex.App.—Austin 1983, no writ). Whether there has been a material and substantial change of conditions affecting the child is normally to be determined by an examination of the evidence of changed circumstances occurring between the date of the order or judgment sought to be modified and the date of the motion to modify. Bukovich v. Bukovich, 399 S.W.2d 528 (Tex.1966); Gibbs v. Greenwood, 651 S.W.2d 377 (Tex.App.—Austin 1983, writ ren’d n.r.e.). See also Oglesby v. Silcott, 620 S.W.2d 820 (Tex.App.—Tyler 1981, no writ); Roe v. Doe, 607 S.W.2d 602 (Tex.Civ.App.—Eastland 1980, no writ); Armstrong v. Armstrong, 601 S.W.2d 724 (Tex.Civ.App.—Beaumont 1980, writ ref’d n.r.e.); Thibodeaux v. Forse, 592 S.W.2d 663 (Tex.Civ.App.—Beaumont 1979, writ ref’d n.r.e.).

Reviewing the evidence in this case, we find insufficient evidence of the existence of any change of circumstances of the children or the parent to support the trial court’s findings. The record indicates that none of the events testified to by appellee and her witnesses were a change from circumstances existing prior to the naming of appellant as managing conservator.

The trial court findings that the father intended to move to California is neither supported by the evidence nor a change in conditions. The testimony indicates appellant was considering a vacation to California and was going to look at job prospects in California while on vacation. He did not testify, nor did any other witness testify, that he intended to permanently relocate himself and the children to California. Additionally, the evidence indicates that possible relocation to California was a condition the appellee was well aware of prior to her agreement to allow appellant to be named managing conservator of the children.

While we cannot condone the obvious acrimony which existed between appellant and appellee, we find that the trial court’s finding that this caused emotional damage to the children is unsupported by the record and not a change in conditions. The record clearly indicates that for some time prior to the entry of the divorce decree, the parties were on very unpleasant terms with each other. While appellee testified that the children seemed upset by the relationship between herself and appellant, there was no real evidence that anything more than the emotional stress upon children which normally arises from this type of divorce, was being experienced by these children. It is an unfortunate by-product of our system of dissolving marriages that children are subjected to a certain amount of emotional distress. In this case, that discomfort was exacerbated by the obvious acrimony between the parents. However, we find no expert testimony that the children were suffering some emotional damage. While we recognize that there is no requirement for expert testimony concerning emotional distress, we do not find sufficient evidence from any source of such a problem in this record. See Jeffers v. Wallace, 615 S.W.2d 252 (Tex.Civ.App.—Dallas 1981, no writ); Matter of the Marriage of Stockett 570 S.W.2d 151 (Tex.Civ.App.—Austin, 1978, no writ); O. v. P. 560 S.W.2d 122 (Tex.Civ.App.—Ft. Worth 1977, no writ); Hanna v. Turner, 556 S.W.2d 866 (Tex.Civ.App.—Corpus Christi 1977, no writ).

The trial court also found that appellant had left the children alone on three occasions. Again, this was not a new or changed circumstance. The uncontradicted testimony was that, prior to the final divorce decree, appellant had on three occasions left the children alone briefly to take his mother to work. This is neither a substantial or material incident, nor is it any change of circumstance of the children or the parent.

It is apparent that the legislature intended to make more stringent the standards for a change of custody when they amended the Family Code to include the current version of § 14.08. See D.W.D. v. R.D.P., 571 S.W.2d 224, 226 (Tex.Civ.App.—Ft. Worth 1978, writ ref’d n.r.e.). This strengthening was no more than a codification of common law standards. “As a matter of public policy, there should be a high degree of stability in the home and surroundings of a young child, and in the absence of materially changed conditions, the disturbing influence of relitigation should be discouraged. Mumma v. Aquirre, 364 S.W.2d 220 (Tex.1963); See Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963). Because a change of custody disrupts the child’s living arrangement and the channels of the child’s affections, a change should be ordered only when the trial court is convinced that the change would be a positive improvement. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787 (1955); Sutter v. Hendricks, 575 S.W.2d 308 (Tex.Civ.App.—Dallas 1978, writ ref’d n.r.e.).

“Even if one could say the child would be better off with the possessory conservator, this would not cause the existing custody arrangements to injure the child. For an existing custody arrange-» ment to become injurious to a child, there must first be a change in the circumstances of the child or custodial parent.” Jones v. Cable, 626 S.W.2d 734 (Tex.1981). Viewing all of the evidence of the circumstances of the children and the parents, and keeping the best interest of the children in mind, we find the trial court abused its discretion in ordering a modification of the managing conservatorship of the children. Appellant’s points of error number one through fourteen are sustained.

In his points of error fifteen and sixteen, appellant complains that the trial court erred in finding that the second and third elements of the Section 14.08(c) tests were not established by the evidence. While our disposition of appellant’s points of error one through fourteen makes these points moot, we find insufficient evidence to support the trial court’s findings as to the question of whether or not the appointment of appellee would be a positive improvement for the children and that the children’s “then” present environment endangered their health and significantly impaired their emotional development. Appellant’s points of error fifteen and sixteen are sustained.

In his seventeenth point of error, appellant challenges the affidavit which accompanied appellee’s motion to modify. TEX.FAM.CODE ANN § 14.08(d) (Vernon Supp.1984) requires in part that a motion to modify the managing conservator must be accompanied by an affidavit which alleges, certain supportive facts before the trial court may grant a hearing on the motion to modify. While we have found that appel-lee failed to prove the facts alleged in her affidavit, we find that the affidavit alleges sufficient facts to serve as a basis for the trial court’s subsequent hearing. Appellant’s seventeenth point of error is overruled.

In his final point of error, appellant complains of the trial court’s action in ordering him to pay child support. There is no controversy over this point of error between the parties. Both parties agree that, if the order of the trial court were to be reversed and appellant be reinstated as managing conservator of the children, he should not have to pay child support. Having so reversed the judgment, we also sustain this point of error.

The judgment of the trial court is reversed, and judgment rendered in restoration of the status of the parties with rights and responsibilities to those provided by the trial court’s judgment dated December 21, 1982, including the immediate right by appellant to possession of the children.

      . The only "professional” testimony offered by either party was that of the oldest child’s teacher, who testified that she perceived no emotional problems in the child.


author: LEVY, Justice.

text:
    Michael KILLOUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0347-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 31, 1984.

      Jack R. Stern, Sugar Land, for appellant.
    William A. Meitzen, Fort Bend Dist. Atty., Terry Breen, Fort Bend Asst. Dist. Atty., Richmond, for appellee.
    Before DOYLE, BASS and LEVY, JJ.
   OPINION

LEVY, Justice.

Michael Killough appeals from a conviction for the offense of aggravated robbery for which the jury assessed punishment at twenty years confinement. We affirm.

Two armed men robbed a bar in Richmond, Texas, in December, 1983, and shot a female patron in the course of the robbery. Police officers who investigated the crime scene and interviewed witnesses to the robbery testified as to witnesses’ descriptions of the assailants and the pickup truck they used.

One patron chased the robbers after they fled the scene, despite the fact that one of the robbers shot at him while he was in pursuit, until the two vehicles collided. The witness testified at trial, describing the events of the chase in detail, identifying Jackie Ham as the robber who shot the female patron at the bar and who shot at him during the chase. He also identified the truck the robbers used.

Another witness testified that appellant robbed her at gunpoint while she was at a night depository, stealing from her a bank pouch and a pistol. She identified the pistol at trial and also identified appellant as the person who had robbed her. According to the witness’s testimony, this robbery occurred at an earlier date than the robbery that was the subject of this appeal.

Jackie Ham, a co-defendant, testified at trial against appellant, claiming that appellant secured a pistol for Ham to use in the robbery; that appellant told Ham he had secured this pistol by robbing a woman at a night depository; that the two men went to the bar on December 4, 1983, with the express intention of “robbing” it; that they did in fact rob the people at the bar; that Ham shot the female patron during the robbery; that the two then fled in a pickup truck, and when a patron chased them, Ham fired at the pursuer; and that they then collided with the pursuing vehicle. Ham’s testimony corroborated or was corroborated by all other evidence gathered at the crime scene or offered by other witnesses in this case.

A physician testified as to his treatment of appellant, who came to the physician under an assumed name, for rib injuries that appellant had told him were the result of a “motorcycle accident.”

Appellant argues in the first of his three grounds of error that the State’s controverting affidavit to his motion for change of venue is defective, such as to entitle him to a change of venue as a matter of law.

Tex.Code Crim.P. art. 31.04 (Vernon 1966) provides:

The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant.

The State’s controverting affidavit in this case tracks the language of article 31.04 almost identically. Nevertheless, appellant contends that the State did not aver in its affidavit precisely how appellant’s supporting witnesses were prejudiced or without sufficient knowledge regarding appellant’s potential for a fair trial in Fort Bend County, thus entitling him to a change of venue. We disagree.

If the controverting affidavit satisfies statutory requirements, a trial court may deny the motion for a change of venue on the strength of that controverting affidavit alone. See, e.g., Cockrell v. State, 117 S.W.2d 1105, 1107 (Tex.Crim.App.1938). A defendant is entitled to a change of venue as a matter of law if, and only if: 1) the State files no controverting affidavit on the question of venue, and 2) the trial court holds no hearing on the question of venue. Durrough v. State, 562 S.W.2d 488, 489 (Tex.Crim.App.1978), rev’d, on other grounds, 620 S.W.2d 134 (Tex.Crim.App.1981).

Contrary to appellant’s argument, the opinion of Robbins v. State, 667 S.W.2d 318, 328 (Tex.App.—El Paso 1984, pet. granted), does not affect the validity of the controverting affidavit in the instant case. In Robbins, the State’s affiant stated that she neither knew either of the persons who signed the affidavit for appellant’s motion for change of venue nor did she know anything about them.” However, the El Paso Court of Appeals found that no evidence existed in the record that the defendant ever effectively objected to the State’s controverting affidavit. In the instant case, the State offered such an affidavit and appellant objected but did not offer any evidence or conduct any cross-examination which effectively challenged the State’s affiant. Therefore, we need not determine whether the State’s controverting affidavit was sufficient because by proceeding to a hearing on the question of venue, appellant waived any entitlement as a matter of law to a change in venue. We may next look to the entire record to determine if the appellant received a fair jury. Turner v. State, 641 S.W.2d 383, 385-86 (Tex.App.—El Paso 1982, pet. ref’d). Appellant has indicated nothing in the record that clearly or even inferentially demonstrates that he did not receive a fair jury in this trial, and our review of that record in its entirety discloses no evidence of a prejudicial jury.

Accordingly, we overrule appellant’s first ground of error.

Appellant next argues that no evidence exists in the record to corroborate Jackie Ham’s testimony, demonstrating that he participated in this robbery.

Tex.Code Crim.P. art. 38.14 (Vernon 1966) provides:

A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.

In other words, independent evidence must exist in the record demonstrating that the crime charged actually occurred and that the defendant participated in it. May v. State, 618 S.W.2d 333, 338 (Tex.Crim.App.1981).

We hold that, taken as a whole, the record strongly corroborates Jackie Ham’s testimony in every pertinent regard. Police officers described the crime scene and related information given by witnesses to the robbery, and this information matched Ham’s description of his and appellant’s activities during the robbery itself. The testimony of the patron of the bar who followed the escaping pickup truck with the two men in it is an identical counterpart to Ham’s testimony of his and appellant’s activities immediately following the robbery. The testimony of the woman who was the victim of appellant’s earlier robbery, wherein he stole a bank pouch and a pistol, corroborated Ham’s testimony regarding how appellant provided Ham with the pistol that Ham ultimately used in the robbery. Appellant argues that this witness’s testimony is meaningless because she had identified another individual to the police immediately after her robbery. This argument we find without merit for two reasons: first, the witness did not positively exclude appellant in her initial statement to the police; therefore, we do not find her to have been an inherently incredible witness; second, even though her initial identification was different from her positive, in-court identification of appellant, that difference goes only to the weight her testimony deserved, a matter within the jury’s discretion and not subject to our review.

We hold that more than sufficient evidence exists to corroborate Jackie Ham’s testimony, and we therefore overrule appellant’s second ground of error.

In his last ground of error, appellant challenges the admission by the trial court of Ham’s testimony regarding appellant’s statement to him that appellant had stolen the weapon (which he was providing for Ham to use during the robbery) from a woman at a nighttime bank depository.

Although appellant objected to Ham’s testimony about appellant’s earlier robbery of the pistol, appellant offered no objection when the woman from whom appellant had stolen the pistol testified immediately after Ham as to the robbery, and specifically identified appellant as the man who had stolen the pistol from her. No error exists in the admission of testimony over objection where another source places the same evidence before the jury without objection. Boles v. State, 598 S.W.2d 274 (Tex.Crim.App.1980); Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109, 112 (1958). Moreover, evidence of other crimes committed by the accused is admissible where such evidence is material and relevant to a contested issue in the case. Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App.1981); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972).

We therefore overrule appellant’s third ground of error.

Appellant has failed to demonstrate any impropriety in the trial court’s actions, any absence of sufficient evidence to support his conviction, and any preservation of error on the question of the extraneous offense.

We accordingly overrule appellant’s grounds of error and affirm the judgment of the trial court.


author: DUNN, Justice.

text:
    John Calvin JONES, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-713-CR, 01-83-714-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 17, 1985.

      Will Gray, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson, Brad Beers, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

DUNN, Justice.

The appellant was convicted by a jury of two violations of the Texas Controlled Substances Act, Tex.Rev.Civ.Stat.Ann. art. 4476-15 (Vernon 1976). The court assessed punishment at seven years probated and a $500 fine in each count.

The appellant, while employed as a registered licensed pharmacist, sold large amounts of controlled substances at excessive prices to an undercover investigator for the Texas State Board of Pharmacy, in violation of sections 4.08 and 3.08(e) of the Act. The indictment alleged that he “while a practitioner, namely a Pharmacist, did intentionally and knowingly dispense a controlled substance, namely Pentazocine, to [an undercover investigator], without a valid medical purpose and not in the course of professional practice.”

The appellant raises three basic issues in his grounds of error:

a) Is a registered, licensed pharmacist a “practitioner” within the meaning and application of section 1.02(24)(A)?
b) Are the terms “valid medical purpose” and “in the course of professional practice” as contained in section 3.08(e) of the Controlled Substances Act so vague that they fail to give fair notice of their requirements and, as such, place an impossible burden on persons intended to be bound thereby?
c) Did the appellant “dispense” the controlled substance within the meaning of section 4.08?

The appellant argues that the indictment and the charge of the court were fundamentally defective because appellant, as a pharmacist, is not a “practitioner” within the meaning and application of section 4.08 of the Act.

Section 1.02(24)(A) defines “practitioner” as follows:

[A] physician, dentist, veterinarian, scientific investigator, or other person licensed, registered, or otherwise permitted to distribute, dispense, analyze or conduct research with respect to, or to administer a controlled substance in the course of professional practice or research in this state_ [emphasis added].

The appellant suggests that he cannot be a “practitioner” within section 1.02(24)(A) because another statute, the Texas Pharmacy Act, Tex.Rev.Civ.Stat.Ann. art. 4542a (Vernon 1976), defines “practitioner” differently. The Pharmacy Act, however, does not affect the definition of “practitioner” under the Controlled Substances Act.

The appellant, as a pharmacist, falls within the above definition of a “practitioner” in the category of “other persons licensed” to distribute or dispense a controlled substance. In Merriman v. State, 594 S.W.2d 410 (Tex.Crim.App.1979), which was before the court on the issue of “delivery” and “dispensing,” the court affirmed the conviction of a licensed pharmacist as a “practitioner” under the Controlled Substances Act. Any other interpretation would exclude one of the largest and most critical segments linking the prescriber and the consumer. We hold that the appellant is a “practitioner” within the meaning of the Act.

The appellant also complains that the language of section 3.08(e) fails to give fair notice of the statutory requirements, and places an impossible burden on those bound by them.

Section 3.08(e) provides as follows:

A practitioner, as defined by Section 1.02(24)(A) of this Act, may not prescribe, dispense, deliver, or administer a controlled substance or cause a controlled substance to be administered under his direction and supervision except for a valid medical purpose and in the course of professional practice.

Texas courts have not decided the proper interpretation, or construction, of “valid medical purpose” and “in the course of professional practice,” as those terms relate to pharmacists. However, the question has been addressed by the federal court in United States v. Hayes, 595 F.2d 258 (5th Cir.1979). In Hayes, a pharmacist was convicted under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 TJ.S.C. sec. 841(a)(1), which contains language similar to the Texas Controlled Substances Act, for unlawfully distributing controlled substances by filling prescriptions which he knew were not issued for a legitimate medical purpose. He claimed that the terms “legitimate medical purpose” and in the “usual course of professional practice” were unconstitutionally vague. While conceding that the terms had been upheld in prosecutions of physicians, Hayes argued that they were nevertheless unconstitutionally vague when applied to a pharmacist

because he cannot have responsibility as a prescriber nor does he have any reasonable means to fulfill a duty of establishing that the practitioner-prescriber who issued the order did so in the usual course of medical treatment.... The most the pharmacist can do to verify the bona fides of a prescription is to check with the issuing practitioner; anything more will require him to examine the patient, which he is neither qualified or legally permitted to do.

Id. at 260-61.

The Fifth Circuit rejected this argument, relying on circumstantial evidence supporting the jury’s conclusion that Hayes knew the prescriptions were not issued for a legitimate medical purpose. The evidence showed a high volume of prescriptions filled for a single individual, and high prices charged by Hayes. These factors are also present in the case at bar. In a footnote, the Fifth Circuit added that “the facts of this case show how a pharmacist can know the prescriptions are issued for no legitimate medical purpose without his needing to know anything about medical science.” Id. at 261 n. 6.

We find appellant’s argument that the statute is unconstitutionally vague to be without merit.

The appellant’s final ground of error avers that even if he were a “practitioner,” he did not “dispense” the substance within the meaning of the statute. He argues that, at most, he merely “delivered” or “distributed” a controlled substance, but did not “dispense” it improperly. This argument, too, is without merit.

The Controlled Substances Act, section 1.02(8) defines “deliver” or “delivery” as follows:

“Deliver” or “delivery” means the actual or constructive transfer from one person to another of a controlled substance, abu-sable glue or aerosol paint, or drug paraphernalia, whether or not there is an agency relationship....

The Controlled Substances Act, section 1.02(10) — (11), defines “dispense” and “dispenser” as follows:

“Dispense” means to deliver a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner (in the course of professional practice or research), including the prescribing, administering, packaging, labeling, or compounding necessary to prepare the substance for such delivery.
“Dispenser” means a person who dispenses.

Given that the appellant was a practitioner for the purposes of the Controlled Substances Act, his actions in selling the controlled substances to the undercover investigator fall within the meaning of the term “dispense” as alleged in the indictment. The appellant’s actions also constituted “delivery” under the Act. Even if appellant is semantically correct that the evidence at trial established “delivery,” and not “dispensing,” our courts have held that evidence establishing an unlawful “dispensing” did not fatally vary from an indictment alleging an unlawful “delivery”. Merriman, 594 S.W.2d at 415. The evidence established an unlawful dispensing of a controlled substance; there was nothing improper in either the indictment or the charge of the court.

We overrule all of appellant’s grounds of error and affirm the judgment of the trial court.

      . Amended by ch. 570, sec. 3.08, 1981 Tex.Gen. Laws 2313.


author: FENDER, Chief Justice.

text:
    Cheryl Aline MOBLEY, Appellant, v. John Arnold MOBLEY, Appellee.
    No. 2-84-053-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 30, 1985.

      Charlye 0. Farris, Wichita Falls, for appellant.
    Crampton, Crampton & Estrada, and Barbara C. Crampton, Wichita Falls, for appellee.
    Before FENDER, C.J., and ASHWORTH and SPURLOCK, JJ.
   OPINION

FENDER, Chief Justice.

Cheryl Aline Mobley, appellant, appeals from an order dismissing her motion to modify custody for failure to state a cause of action under TEX.FAM.CODE ANN. sec. 14.08(d) and (e) (Vernon Supp.1985).

We reverse and remand.

Appellant and John Arnold Mobley, ap-pellee, were divorced in August, 1983. Under the terms of the divorce decree, custody of the two minor children of the marriage was split. Managing conservatorship of the eight-year-old son was awarded to appellee (father). Managing conservator-ship of the three-year-old daughter was awarded to appellant (mother). Appellant and appellee were each named possessory conservator of the child over whom they were not named managing conservator. A visitation schedule was established which allowed the two young siblings to see each other every weekend and a parent every other weekend and to spend the entire summer vacation together.

Four months after the divorce was granted, appellant filed on November 16, 1983, a Motion to Modify in Suit Affecting the Parent-Child Relationship, seeking a change in the managing conservatorship of the eight-year-old son. Subsequently, ap-pellee, father, filed a Motion to Stay Proceeding under the Soldiers’ and Sailors’ Civil Relief Act of 1940, 50 U.S.C.S.Appx. sec. 521 (Law.Co-op.1981), and a Motion to Dismiss in which he asserted that the Motion to Modify should be dismissed because it does not meet the requirements of sec. 14.08(d) and (e) for filing within one year. A hearing was held on December 13, 1983, before the Honorable Arthur Tipps, a visiting judge, sitting for the 89th District Court, at which time the Motion to Stay Proceeding was denied and the Motion to Dismiss was continued. Judge Tipps stated that in order to rule on the Motion to Dismiss, the court would have to have professional advice as to whether or not taking the child out of the continental United States would be a serious and immediate question involving the child and ordered a psychiatric study of the child and other members of the family as deemed necessary by the psychiatrist.

On December 16, 1983, Judge Tipps held a second hearing on the Motion to Dismiss at which time he announced to the parties that he had been premature in ordering a psychological study explaining as follows:

“The law says that before you can change the custody of a child, within six months, within one year of the date appointing the Managing Conservator, you have to allege that the, [sic] to get the case heard before a year, you have to make affidavit that the child’s present environment may endanger his physical health or significantly impair his emotional development, and she did that. It was my impression earlier this week that I had to determine whether or not those facts were true, but the further reading of the law says that you shall make this affidavit and, if the Court finds that there are adequate facts to support [the] allegation in the affidavit, then the Court will order a hearing on the merits. I thought that I had to determine whether or not it would, as a matter of fact, impair his emotional development in ruling on this temporary hearing the other day. I do not. We can’t get to that point yet. We get to that point later on on a hearing on the merit. I have ruled that the affidavit was sufficient, and I should have based my ruling solely on the basis of the affidavit, ...”

Judge Tipps ruled that the facts stated in the affidavit were sufficient to support the allegation in the Motion to Modify and set a hearing on the motion.

Subsequently, the case was transferred from the 89th District Court to the County Court at Law of Wichita County, the Honorable Jim Hogan presiding, where previous contested issues concerning the parent-child relationship had been tried. A hearing in the matter was held on January 6, 1984, at which time Judge Hogan swore in the witnesses and invoked the Rule. Ap-pellee then presented to the court a Plea to the Jurisdiction, asserting that the trial court was without jurisdiction to proceed with the hearing because as a matter of law the affidavit was legally insufficient under section 14.08(d) and (e) to allow the court to proceed and that the court should dismiss the Motion to Modify Custody without prejudice for failure to state a cause of action under section 14.08(d) and (e) of the Texas Family Code. We note that appellee asserted basically the same grounds as in his earlier Motion to Dismiss which was overruled by Judge Tipps. The trial court agreed and dismissed the Motion to Modify Custody for failure to state a cause of action under section 14.08(d) and (e), announcing orally that he found “the motion and the affidavit fail to meet the three-pronged test, plus the emergency situation set out under 14.08(d) and (e) of the Family Code.” It is apparent that Judge Hogan based his ruling on the more stringent three-prong test of sec. 14.08(c)(l)(A-C) which is not applicable to the threshold determination required by sec. 14.08(d) and (e) before him in this case.

On appeal, appellant raises five points challenging the trial court’s ruling. The issue before us is whether the affidavit states sufficient facts to entitle the movant requesting modification within one year to a hearing on the motion.

Section 14.08(d) and (e) provides in pertinent part:

(d) If the motion is filed for the purpose of changing the designation of the managing conservator and is filed within one year after the date of issuance of the order or decree to be modified, there shall be attached to the motion an affidavit executed by the person making the motion. The affidavit must contain at least one of the following allegations along with the supportive facts:
(1) that the child’s present environment may endanger his physical health or significantly impair his emotional development; or ...
(e) On the filing of a motion to which the provisions of Subsection (d) of this section apply, the court shall deny the motion and refuse to schedule a hearing unless the court determines, on the basis of the affidavit, that adequate facts to support an allegation listed in Subdivision (1) or (2) of Subsection (d) of this section are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, a time and place for the hearing shall be set.

Id.

It is obvious that the intention of the Legislature in putting section 14.08(d) in the Family Code was to assure stability to the provision for custody of divorced parents and to prevent the custody award from being relitigated within a short period of time, except in cases involving the children’s physical health and emotional development. Therefore, section 14.08(e) requires that an initial determination be made by the court as to whether the facts sworn to in the affidavit supporting the motion to modify justify a hearing. See Jilek v. Chatman, 613 S.W.2d 558, 559 (Tex.Civ.App.—Beaumont 1981, no writ).

In order to comply with section 14.08(d) of the Code, appellant attached an affidavit to her Motion to Modify and in which she stated:

“My name is CHERYL ALINE MOB-LEY, I am well acquainted with the present environment of the child JOHN ABDUL MOBLEY, and I hereby state under oath that the child’s present environment may endanger his physical health or significantly impair his emotional development. Specific facts that support the above are:
The Managing Conservator of the child John Abdul Mobley has received military orders for an assignment to Panama, where he will be stationed with the Air Force for at least 3 years. If John Abdul Mobley is taken to Panama, the present visitation schedule could not be carried out. The two siblings would not be able to see each other for months or even years as I could not afford the cost of transportation for either of us to and from Panama or any place else.
John Abdul Mobley is still a very young child, only 8 years of age. He does not want to leave the area where his Mother and 3 year old sister are living and it would not be in his best interest as shown by the attached summary.”

The attached summary incorporated in the affidavit a report made by Dr. L.R. Ballering, a clinical psychologist, which stated that the named subject child had “a definite fear of being removed from the area,” that he expressed “strong feelings against having to leave the area,” and, most significantly, that “to move him [the child] from the community, at this time, would be one too many strains and could prove too detrimental to his mental health.”

To be entitled to have the motion set for a hearing in the instant case, appellant had to state adequate facts to support the allegation that the child’s physical health may be endangered or his emotional development significantly impaired. The facts alleged had to be sufficient to show the possibility of harm rather than the existence of harm.

In her affidavit the appellant presented the following facts to support her allegation that the child’s present environment may significantly impair his emotional development:

(1) Father, managing conservator, was being re-assigned to Panama under military orders for at least three years.
(2) The subject child is an eight-year-old boy.
(3) Mother and three-year-old sister reside in Wichita County, Texas.
(4) The siblings would be separated by the distance between Wichita County, Texas, and the Republic of Panama.
(5) The cost for sending the children back and forth between Wichita County and Panama to visit would be prohibitive.
(6) The eight-year-old son did not want to leave the area where his mother and sister live.
(7) An assessment by a clinical psychologist indicates to move the boy away from his mother and sister “would be one too many strains and could prove to be detrimental to his mental health.”

Considering these facts in light of the fact that custody of the two young siblings was split between the two parents with the visitation schedule structured to maximize contact between the siblings, it is clear that the facts are sufficient to establish the possibility of harm to the son if he is taken out of the country and to entitle movant to a hearing on her Motion to Modify custody. Therefore, we hold that as a matter of law the affidavit in support of the Motion to Modify custody within one year of divorce stated adequate facts to require a hearing on the motion.

Accordingly, we reverse the judgment of the trial court and remand the cause to the trial court. Costs of appeal are assessed against appellee.


author: O’HARA, Justice.

text:
    Karl T. MOORE and Kentucky Farm Bureau Mutual Insurance, Appellants/Movants, v. Lisa ROBERTS, By and Through next friend, Judith ROBERTS and Earl Bailey, administrator of the Estate of Barbara Bailey, Appellees/Respondents.
    Supreme Court of Kentucky.
    Dec. 14, 1982.
    As Modified on Denial of Rehearing Feb. 28, 1985.
    J.D. Raine, Jr., Raine & Raine, Louisville, for appellants/movants.
    Don F. Schmidt, Louisville, for appellee/ respondent Lisa Roberts.
    Henry S. Johnson, Handmaker, Weber, Meyer & Rose, Louisville, for appellees/ respondents Earl Bailey, Administrator of the Estate of Barbara Bailey.
   O’HARA, Justice.

On October 26, 1978, Karl Moore (appellant herein) spent the day doing odd jobs with a friend, Roger Underwood. Over a fourteen hour period, Moore drank between seven and fourteen beers. Late that night while driving Underwood’s vehicle (Underwood was too intoxicated to drive and was a passenger), Moore offered a ride to Lisa Roberts, Barbara Bailey and Moreen Lette-ney. There was testimony that Underwood had a six pack of beer and Roberts a fifth of bourbon in the car. At approximately 1:00 a.m. on October 27, 1978, the automobile operated by Moore left a Jefferson County road and struck a tree, killing Barbara Bailey and injuring Lisa Roberts.

This case is before this court on a grant of discretionary review. We are presented two arguments, one by each of the appellants. We shall discuss each of them separately.

I.

Appellant Moore argues that the trial court and the Court of Appeals erred in holding that his testimony by deposition and otherwise constituted judicial admissions as to the issues of intoxication and excessive speed, and that it additionally erred by prohibiting testimony of other witnesses as to these issues.

The appellant made a statement at his deposition that he was not drunk at the time of the accident. At a pre-trial hearing, the court determined that his declarations in that deposition were judicial admissions and that he would not be permitted to testify otherwise at trial. In response to a subsequent trial motion by the appellees, impeachment testimony from other witnesses was also denied. The Court of Appeals held that the determination that Moore’s deposition testimony amounted to irrebuttable judicial admissions was erroneous. The Court of Appeals further held, however, that when Moore freely adopted his pre-trial statements during the course of the trial, the statements then became judicial admissions. We disagree.

The Court of Appeals utilized the definition of a “judicial admission” as set out in Lawson’s Kentucky Evidence Law Handbook, 1976, at 127 which states in full:

(1) A "judicial admission” is a formal act of a party committed in the course of a judicial proceeding either in pleading or in presenting testimony that serves as a substitute for the production of evidence by the opponent. It is conclusive against the party committing it and, therefore, may be the underlying basis for a summary judgment, directed verdict, or judgment notwithstanding the verdict.
(2) The testimony of a party shall not be construed to be a “judicial admission” unless it appears from all the conditions and circumstances of the case that there exists no probability of error in his testimony.

That standard was set out by this court in Sutherland v. Davis, 286 Ky. 748, 151 S.W.2d 1021 (1941) as to the broad definition of a judicial admission. However, we have included in this definition of a judicial admission any statements made under oath in a pre-trial deposition. Bell v. Harmon, Ky., 284 S.W.2d 812 (1955), Fletcher v. Indianapolis and Southeastern Trailways, Inc., Ky., 386 S.W.2d 264 (1965). This is still the law in the Commonwealth, therefore appellant Moore’s statements, made under oath in a pre-trial deposition could possibly constitute judicial admissions.

We now turn to that question: did the statements made by Moore in this case constitute conclusive judicial admissions? The appellant stated in his deposition that he was not drunk at the time of the accident in question. It would appear that this statement was self-serving at the time it was made. There is no indication or allegation in the record that Moore made this statement knowing it to be detrimental to his position in the pending lawsuit. In addition, his statements were merely his own opinion as to the state of his sobriety. In Sutherland, supra, we stated:

We believe the law to be that admissions fatal to his cause given in the testimony of a party to an action on the trial of the case should be viewed in the light of all the conditions and circumstances proven in the case; and unless all such circumstances and conditions give rise to the probability of error in the party’s own testimony, he should not be permitted to avert the consequences of his testimony by the introduction of, or reliance on, other evidence in the case. Sutherland, supra, 151 S.W.2d at 1024.

Under the facts of the case at bar, there is no indication whatsoever that the “admissions” of the appellant Moore were in any way “fatal to his cause.” It does not appear from all the conditions and circumstances of the case that there exists no probability of error in his testimony. We hold, therefore, that the statements made by the appellant were not “judicial admissions” such as to prevent him from explaining his statements or introducing other evidence to rebut the statements. It was error for the trial court to exclude rebuttal testimony on the issue of Moore’s sobriety or lack thereof on the night in question. The case is hereby remanded to the Jefferson Circuit Court for retrial on this issue.

II.

Appellant Kentucky Farm Bureau Mutual Insurance Company (Farm Bureau) argues that the Court of Appeals erred in upholding the award of additional attorney’s fee to counsel for Lisa Roberts. We disagree.

KRS 304.39-220 allows a reasonable attorney’s fee to be awarded if the denial or delay of benefits from the reparations obli-gor was without reasonable foundation. The trial court held that the delay of payments to Lisa Roberts by Farm Bureau was unreasonable, and a fee was assessed against Farm Bureau. This decision was affirmed on appeal in Kentucky Farm Bureau Mutual Insurance Company v. Roberts, Ky.App., 603 S.W.2d 498 (1980). Subsequently, the trial court imposed an additional attorney’s fee to cover the representation on that appeal.

Appellant argues that its constitutional right to an appeal cannot be subjected to an assessment of damages on the first appeal as a matter of right contemplated by Section 115 of the Constitution of Kentucky. See KRS 264A.300(1).

KRS 304.39-220 provides for a penalty of reasonable attorneys fees “on a claim or in an action for basic or added reparation benefits ... if the denial or delay was without reasonable foundation.” The only issue of that appeal was the reasonableness of the delay. Until that issue is fully resolved either through the appellate process or through failure to perfect an appeal, the appellee has no basis upon which to enforce her judgment. Had the Court of Appeals determined that the delay was not unreasonable, then the appellee would not have been able to collect any additional attorney’s fees.

The award of the additional fee is not, as suggested by Farm Bureau, a penalty imposed upon its right to appeal, but rather an item of monetary damages allowed by the legislature due to the continuing representation upon the issue of reasonableness. An appeal is always at one’s own peril. Clearly KRS 304.39-220 envisages that the fee shall attach to the logical and legal conclusion of litigation.

Therefore, since a portion of this appeal relates to that same issue, the trial court may permit additional attorney’s fees for this appeal proportionate with this issue as to the overall appeal.

III.

Finally, we find it necessary to comment upon an issue not raised on appeal but of prime import in creating the first issue discussed on this appeal.

Both appellants (defendants) Moore and Farm Bureau were represented at trial by the same counsel. Although Moore initially testified that he was not drunk on the night of the accident, his own attorney attempted to impeach this testimony with the apparent intent of showing that the plaintiffs would have been contributorily negligent by getting into the vehicle if they knew or should have known that Moore was too drunk to drive. While this defense, if successful, might have relieved Farm Bureau of its liabilities under the insurance policy, we are not so sure that this defense was presented in the best interests of the appellant (defendant) Moore.

We would strongly advise all counsel in a case such as the one at bar to avoid the unavoidable conflict of interest inherent in such a situation by notifying the clients of the potential conflict and by choosing the one client whom he or she will represent and advising the other clients to retain separate counsel.

This case is remanded to the Jefferson Circuit Court for retrial and disposition consistent with this opinion.

All concur.