text:
    Janice Herndon GALAZNIK, Appellant, v. Kenneth Jay GALAZNIK, Appellee.
    No. 04-83-00242-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 31, 1984.
    Rehearing Denied Jan. 29, 1985.

      Sam C. Bashara, San Antonio, for appellant.
    Daniel R. Rutherford, Wallace T. Jacobs, San Antonio, for appellee.
    Before ESQUIVEL, BUTTS and DIAL, JJ.
   OPINION

BUTTS, Justice.

This appeal arises from a bill of review proceeding. The jury trial resulted in a verdict favoring the petitioner for bill of review, Kenneth Jay Galaznik, appellee herein; the trial court entered judgment on the verdict and set aside the original divorce decree. Subsequently, the trial court conducted hearings on the issues of the divorce decree, pronouncing the dissolution of the marriage, deciding conservatorship and child support, and the division of the property of the parties. Three separate judgments were signed by the trial judge on March 15, 1983. Appellant wife, Janice Herndon Galaznik, appeals from the judgment granting the bill of review and from the judgment of division of property. This court consolidated the two appeals, considering them as arising from one final judgment.

It is settled that an order following a hearing on a petition for bill of review, (TEX.R.CIV.P. 329b), which merely sets aside the prior judgment is an interlocutory order which cannot be reviewed by appeal. Hubbard v. Tallal, 127 Tex. 242, 92 S.W.2d 1022, 1023 (1936). If that were the only order before this court, then we would lack jurisdiction to determine this appeal. In Warren v. Walter, 414 S.W.2d 423, 424 (Tex.1967), the Supreme Court stated: “... Rule 174(b) confers broad discretion on trial courts to order a separate trial ‘of any issue.’ ” As concluded by this court in Johnnie C. Ivy Plumbing Co. v. Chapa, 567 S.W.2d 897, 898 (Tex.Civ.App.—San Antonio 1978, no writ) the provisions of TEX.R.CIV.P. 174(b) permit the trial court to decide, by separate orders, the “separate issues” relating to vacation of the previous judgment and resolution of the original controversy on its merits. There is determined in a bill of review proceeding not only the question of whether the challenged judgment should be set aside but also the merits of the controversy between the parties. Since the jury heard the bill of review petition in the present case, the trial court thereafter heard the merits of the issues in controversy. Neither of the parties questions on appeal the necessity or form of the three “judgments.” Therefore we will treat the judgment setting aside the previous judgment and the two judgments which dispose of the issues in controversy, namely, the property division, child support and related con-servatorship matters, as one final judgment. We thus have jurisdiction of the appeal.

Janice assigns five points of error: the judgment notwithstanding the verdict should have been granted because the evidence was legally insufficient to support a finding of her fraudulent intent; the evidence was also factually insufficient to support that finding; the judgment notwithstanding the verdict should . have been granted because the evidence was legally insufficient to support a finding of the husband’s reliance upon any misrepresentation of Janice; and the evidence is factually insufficient to support a finding. Her last point is that the pleadings for the bill of review were unverified and, therefore, fundamentally inadequate.

In overruling the last contention, we apply the general rule that omission of or formal defect in the verification of a plea or pleading may be deemed waived unless the fault is challenged. 2 R. MCDONALD, TEXAS CIVIL PRACTICE § 5.16 (1982). A petition in equity for bill of review should be verified. 2 R. MCDONALD, supra at § 5.14.3. In the instant case the pleader presented trial issues which he had the burden of establishing. Had the lack of verification of the pleading been complained of before trial by special exception, it would have been well taken. Generally, however, absence of a required verification is a defect which may be waived. Heusinger Hardware Co. v. Frost National Bank of San Antonio, 364 S.W.2d 851, 856 (Tex.Civ.App.—Eastland 1963, no writ). We find the defect in the pleading was waived. Point of error five is overruled.

To understand the context in which the petition for bill of review was brought, it is necessary to summarize the events leading to the original divorce. This divorce was granted in 1981. The evidence is clear that Kenneth insisted upon the divorce. It is also plain that Kenneth represented himself in negotiations to settle all issues. He was a “tough negotiator,” according to the wife’s lawyer. The testimony highlighted Kenneth’s concern with tax consequences. He said that he and the lawyer discussed “a ton” of alternatives to disposition of the house and child support. He and the attorney finally settled on contractual alimony as the solution. There is no dispute that Kenneth revised the agreement, taking it with him to study.

A property settlement agreement was finally drawn up and made part of the divorce judgment. That written agreement contained a provision which is an unenforceable contract. It provided that Janice would forebear from seeking child support for their minor child so long as “periodic payments” in the sum of $300.00 per month . were made to her beginning July 31, 1981, and continuing each month until one of the following events occurs: Janice dies or the date of February 25, 1996 is reached. The periodic payments were intended to qualify for inclusion in the gross income of the payee (Janice) under section 71(a) of the Internal Revenue Code of 1954, and the payments likewise to be deductible by the payor (Kenneth) under section 215(a) of the Code. Thus she paid tax, but he could deduct his payments. In return, the homestead property, a residence, was given to the wife in fee simple. The equity in that was determined to be about $30,000. Although there were other provisions in the agreement, these are the only relevant ones we are concerned with as they form the basis of this suit.

At the trial on the petition for bill of review it was established that both parties were aware of the unenforceability of the agreement (contract). Janice was represented by an attorney, but Kenneth, a certified public accountant, was not. However, testimony revealed that Kenneth met several times with Janice’s attorney, and the subject of unenforceability of that kind of agreement was discussed. We can conclude that had Kenneth sought to enforce the contract, a judgment mandating that the managing conservator never seek support for Kenneth’s minor child would be precluded by considerations of public policy. It is not questioned on appeal that the contract would be detrimental to the best interests of the minor child.

The evidence showed that Janice became ill and was hospitalized in 1982. She asked Kenneth to pay child support. He refused and filed this petition for bill of review to set aside the previous agreed judgment awarding the real estate to Janice in fee simple. TEX.R.CIV.P. 329b. Although a bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, and (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950).

Kenneth alleged fraud was practiced by Janice when she agreed and promised with Kenneth if she received the property she would sign an agreement whereby she would not seek increased child support. His alleged meritorious defense was that the division of community property (homestead) was not fair in that 98% was awarded to Janice and his failure to appear in court was not the result of his negligence.

The jury found that when Janice signed the agreement she intended to seek modification of child support payments; that the provision in the agreement prohibiting her from seeking an increase was made to induce Kenneth to sign the agreement; that Kenneth relied upon the validity of the provision (that it was enforceable) when he signed the agreement; that had a court decided the property and child support matters the result probably would have been different; and, that Kenneth was not negligent in handling his divorce.

We note the fact that Janice knew at the time she signed the agreement that it was unenforceable does not prove that she had no intent to abide by its provisions and would seek child support. In several instances in the record she states she always intended to abide by it. She did testify that her husband had always handled the finances and that she had no idea how much the cost of raising a child was. She stated he had promised to help if she needed aid for the child. Her attorney also emphasized and stated that she intended to abide by the agreement so far as he could ascertain. Kenneth presented no evidence contrariwise to prove that Janice did not intend to abide by the agreement. Moreover, his testimony was that the attorney “may have mentioned” the unenforceable aspect of the contract to him. The attorney stated that, without doubt, he had pointed this out to Kenneth, who, in turn, was curious and wanted to know why the contract was unenforceable. The attorney said he explained why.

The court will grant relief to a party from a judgment when he has been prevented from presenting his defense as the result of extrinsic fraud on the part of the opposite party. He must prove the fraud and that it prevented him from making his defense. He must also allege and prove that he had a meritorious defense and that the judgment was entered without negligence on his part. Mohammed v. Maldonado, 214 S.W.2d 896, 898 (Tex.Civ. App.—Waco 1948, writ ref’d n.r.e.). See Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (1950); TEX.R.CIV.P. 329b.

When the overruling of a motion for judgment notwithstanding the verdict is attacked, the appellate court reviews this as a “no evidence” point. We must look at the evidence most favorably in support of the finding to determine if a judgment notwithstanding the verdict would have been proper. We consider only the evidence and inferences which support the verdict and reject the evidence and inferences which are contrary thereto. See Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.L.REV. 360, 362-63 (1960). Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); TM Productions v. Nichols, 542 S.W.2d 704, 707 (Tex.Civ.App.—Dallas 1976, no writ); Rule 301.

The evidence demonstrated that Kenneth was the party who was concerned about tax consequences. Both Janice and her attorney testified that Kenneth took proposed agreements with him and reworked them to his satisfaction. The evidence was that Janice was emotionally upset, hoping for a reconciliation, not trained in money matters, not as well educated nor financially astute as her husband. Janice further testified that Kenneth told her she must sign the subject agreement by July 31, 1981, or he would obtain the divorce himself. We do not find this to be evidence of an inducement on her part. Mathematics demonstrate also Kenneth would benefit in the years to come by Janice’s continued acquiescence to the arrangement because of tax consequences and related financial gains. It is significant that with his background in tax laws as a certified public accountant Kenneth participated in the preparation of the agreement.

In order to show that he was prevented from presenting his defense in court, Kenneth must first show he was induced to make the agreement by fraudulent misrepresentation. Unless the promise (misrepresentation) was made with a present intention not to perform, it does not constitute actionable fraud. This is so even if it was made to induce a contract and thereafter not fulfilled. Yarborough v. Back, 561 S.W.2d 593, 595 (Tex.Civ.App.—Amarillo 1978, no writ). (Citations omitted). We hold there was legally insufficient evidence to support the finding that Janice had the present intention not to perform the contract. We sustain the first point of error.

We likewise sustain point of error three that a finding of reliance upon misrepresentation is not supported by any evidence: the evidence is legally insufficient. Reliance upon misrepresentation is an essential element of fraud. Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983); Cresap v. Manor, 63 Tex. 485, 488 (1885); Woofers v. I. & G.N. Railway Co., 54 Tex. 294, 299 (1881). All of the persons testifying, including Kenneth himself, indicated that he knew of the unenforceability of the provision, the attorney stating he went so far as to explain the reasons to Kenneth for the unenforceability. Although Kenneth stated that the nonvalidity “may have been mentioned,” it would strain credulity in the circumstances of this case to find that he actually relied on the enforceability of the provision. We hold there is no evidence to support a finding that Kenneth relied upon the validity of the provision (enforceability).

Although there was no jury finding on this matter, the misrepresentation upon which he would rely must be in this instance Janice’s agreement to abide by the unenforceable contract. Since the evidence reflects no fraudulent intent on the part of Janice at the time she signed the agreement not to abide by it, there is no false misrepresentation upon which one could rely. Mere proof of nonperformance of the contract will not support an inference of fraudulent intent. In order for a promise to constitute fraud, it is necessary that it should have been made at a time when the promissor knew that it would not be performed. When a representation, in the nature of a promise to be performed in the future, is alleged as a basis for fraud, it must be shown that the person [when] making the representation did not intend to perform at the proper time. William B. Roberts, Inc. v. McDrilling Co., 579 S.W.2d 335, 339 (Tex.Civ.App.—Corpus Christi 1979, no writ). We find there was no evidence of fraudulent intent on the part of Janice when she made the agreement. Therefore there was no false representation upon which there could be reliance, a necessary element of fraud. As noted before, the special issue was addressed to Kenneth’s reliance upon the validity of the contract.

We have no need in this case to consider points of error two and four: that the evidence is factually insufficient to support a finding of fraudulent intent, and that the evidence is factually insufficient to sustain a finding of reliance upon any misrepresentation.

Accordingly, the final judgment (all matters) on the bill of review is reversed and rendered, and the judgment is set aside. The trial court is instructed to enter forthwith a judgment in this case in compliance with the laws of the state.


source: Caselaw Access Project

author: ESQUIVEL, Justice. CANTU, Justice,

license: Public Domain

text:
    Maria Theresa GONZALES, Appellant, v. STATE of Texas, Appellee.
    No. 04-83-00595-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 9, 1985.

      James A. Mayer, San Antonio, for appellant.
    Sam D. Millsap, Jr., Crim. Dist. Atty., Sid Harle, Margaret M. Embry, Asst. Crim. Dist. Attys., San Antonio, for appellee.
    Before ESQUIVEL, CANTU and DIAL, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from a conviction for passing a forged check. Imposition of a two year sentence was suspended and appellant placed on probation for a period of three years.

In two grounds of error appellant challenges the sufficiency of the evidence to sustain her conviction. The first ground of error alleges the evidence is insufficient to show she acted with the intent to defraud and harm another. The second ground alleges the evidence fails to establish that she knew the check was forged as alleged in the indictment.

Appellant waived her right to a jury and trial was before the court. Appellant entered a plea of “not guilty.” Appellant agreed to allow the State to introduce evidence by written stipulations. A handwritten portion of the stipulations introduced by the State recites, in pertinent part, the following:

... I am the same Maria Theresa Gonzales who passed check No. 512 on the account of A.L. Plumbing Co. on April 18, 1983, in the amount of $256.89 ... and the owner of the checks, Arnulfo Lopez, did not authorize or consent, or execute the said check being written, and that said check was altered, executed, authenticated and completed so that it purported to be the act of another, and further I stipulate that I ... passed a check No. 488, on the same account in the amount of $243.57 ... and that the owner, Arnulfo Lopez did not authorize said check ... and the check had been altered, executed, and completed so that it purported to be the act of another who did not authorize said act ... and both checks were forgeries.

Appellant specifically stipulated to the testimony of four witnesses and to any other witnesses that might be called by the State. See O’Conner v. State, 401 S.W.2d 237 (Tex.Crim.App.1966). Appellant further stipulated that the witnesses’ statements attached to the stipulations were true and correct.

The witnesses’ statements include one from the cashier wherein he, Stephen Dunk, states that appellant presented the check to him for cashing on the date alleged. The check was made payable to appellant, signed by Arnulfo Lopez of A.L. Plumbing and fits the description of the check set out in the indictment. Dunk’s statement further indicates that he ran a check and found that this check was listed as stolen. Dunk had two other checks in his office from A.L. Plumbing that were “fored” (sic).

The statement from Arnulfo Lopez asserts that the signature on the check is not his, nor authorized by him and is in fact a forgery of his signature. Lopez further states that he does not know appellant.

Included in the stipulations received in evidence as part of the State’s case is a computerized print-out of the arresting officer’s report. In this report, the officer states that when he questioned appellant about the check at the scene, the appellant stated that she worked for the company and that the check was her payroll check. Thus, in effect, appellant admitted she passed the check but believed she was entitled to the proceeds because of the work she had performed. Where the State puts in evidence a statement or admission of the accused party which exculpates the accused, and does not directly or indirectly disprove them, the accused is entitled to an acquittal. See Palafox v. State, 608 S.W.2d 177 (Tex.Crim.App.1979). Nowhere in the State’s evidence introduced is there anything which refutes appellant’s exculpatory statement to the arresting officer.

After the overruling of her motion for instructed verdict, which was based upon the same grounds as are now urged on appeal, appellant took the stand in her own behalf.

Appellant testified that around the time of the incident she had a part-time job at a Target store. She wanted an additional job and asked a friend, Elida Lambaria, about work. She was informed by Lambaria that a job with A.L. Plumbing, where Lambaria worked, was open. She stated she, along with three other women, began working for the company under a supervisor named Johnny. She stated she signed a contract which was retained by Johnny. She stated that she would receive a call when plumbing work was needed and that Johnny would pick up her and the other woman in his car and take them to the job sites. After working about two weeks she received her first payroll check which she had no difficulty in cashing. This check, drawn on A.L. Plumbing, appears to be the one also introduced by the State and stipulated by appellant in the amount of $243.57. After doing further work, she received the check which is the subject of the indictment. Appellant, testified that Johnny always left her’s and the other women’s checks at Lambaria’s house for them and she never had to go to the main A.L. Plumbing office for anything.

After receiving their paychecks on this occasion, appellant and the three women went to Handy Andy to cash them. Appellant presented her check and identification to the cashier, Stephen Dunk. Dunk informed her she would have to wait while he ran it through “Check Stop.” After twenty or twenty-five minutes, appellant asked Dunk if there was a problem and he said no. While there, one of the other women attempted to cash her payroll check but was told to wait. The four women waited by the door. When appellant started to smoke a cigarette, the four started outside - to smoke, a police officer arrived and told them all to go back inside. She stated that at the time she gave the cashier this particular check she did not know it was forged. She believed the check to be in payment to her for her recent work. Appellant stated she had no reason to suspect there would be a problem with this check because she did not have any problem cashing the first check.

On cross-examination, appellant admitted that she did not know Johnny’s last name. Other than that the job sites were on the northside of town, appellant could not recall the names of the subdivision or builder associated with the job sites. Appellant also admitted that two of the other women, Elida Lambaria and another named Ester had been charged with passing checks. Appellant stated that no charges were filed against Johnny.

One of the offense reports indicate that the check in question was reported stolen in a burglary which occurred on March 27, 1983. Appellant presented the check to the cashier on April 18, 1983.

In pertinent part, the indictment charged appellant with forgery, as follows:

... and on or about the 18TH day of APRIL, A.D., 1983, MARIA THERESA GONZALES, hereinafter called defendant, did then and there knowingly and intentionally with intent to defraud and harm another, PASS TO STEPHEN DUNK a WRITING, NAMELY: A CHECK that had been MADE, ALTERED, EXECUTED, AUTHENTICATED AND COMPLETED so that it purported to be the act of another who did not authorize the act, and the said defendant knew said CHECK was forged and which said CHECK is to the tenor following:
[A photocopy of the face of the check is attached to the indictment]

In Tatum v. State, 649 S.W.2d 822, 823 (Tex.App.—San Antonio 1983, no pet.), this court stated: “Because the gist of the offense of forgery is the ‘intent to defraud or harm,’ it becomes necessary in a ‘passing’ case for the State to prove the defendant had knowledge the instrument was forged.” We further stated that this proof may be made by circumstantial evidence. Id. at 823. Yet, whether the evidence be direct or circumstantial, the State must prove facts from which such an intent to defraud or harm is deducible beyond a reasonable doubt and, in the absence of such proof, a conviction will not be justified. See Stuebgen v. State, 547 S.W.2d 29 (Tex.Crim.App.1977).

A careful reading of the handwritten stipulation does not reveal that AT THE TIME SHE PASSED THE CHECK(S) appellant had the intent to defraud or harm or knew that the check(s) were forged. At best, the handwritten stipulation acknowledges that appellant is presently agreeing that both checks are forgeries. This is consistent with appellant’s defensive posture both at the time of arrest and at trial. On each occasion appellant stated she believed the check to be her pay for work performed for A.L. Plumbing. Appellant specifically denied knowing the check was a forgery when she presented it to the cashier.

Appellant was listed as payee and there is no evidence in the record to show that appellant falsely identified herself to the cashier. There is no evidence that appellant forged Arnulfo Lopez’ signature on the check. There is no evidence connecting appellant to the burglary which resulted in the checks being stolen from the company. There is no evidence appellant attempted to flee the scene. Appellant made no statement from which it could be inferred that she knew the instrument was forged.

In the instant case, while the State did prove that the instrument was forged, the State failed to show by any evidence beyond a reasonable doubt that appellant knew the instrument was forged or that she had the intent to defraud or harm. See and compare Crittenden v. State, 671 S.W.2d 527 (Tex.Crim.App.1984); Pfleging v. State, 572 S.W.2d 517 (Tex.Crim.App.1978); and Stuebgen v. State, supra.

The evidence being insufficient to sustain the conviction, the judgment of the trial court is reversed and the cause remanded to the trial court with instructions to enter a judgment of acquittal. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

CANTU, Justice,

concurring.

I concur in the result, but I disassociate myself from that portion of the opinion which relies on O’Conner v. State, 401 S.W.2d 237 (Tex.Crim.App.1966) for authority to consider as evidence those documents attached to the “Written Waiver and Consent to Stipulation of Testimony and Stipulations” which constitute statements or reports of witnesses whose names are not specifically included in the waiver portion of the instrument.

The majority opinion needlessly discusses, I believe, evidence not validly before the trial court or before this Court in arriving at its conclusion. As I see it the probative evidence in the case is much weaker than the majority assumes inasmuch as it consists solely of two witness’ statements and the handwritten stipulation alluded to in the majority opinion.

In support of my position I refer to the Written Waiver and Consent to Stipulation of Testimony and Stipulations and especially those portions which read:

Now comes the defendant ... and understanding that he has the right to have any witness against him appear in Court, to be confronted by such witness and the right to cross-examine such witness through counsel, deliberately and knowingly agrees and consents in writing to waive the appearance, confrontation and cross-examination of witnesses against him in said cause, to-wit:
ARNULFO LOPEZ
STEPHEN DUNK
HECTOR GARZA
RENE ARIZOLA
As well as any other witnesses that might be called by the State.
* * * ‡ * *
Said defendant in person together with his counsel and the attorney representing the State of Texas further agrees and consents in writing in open court to the introduction of testimony on behalf of the State by affidavits, written statements of witnesses, and any other documentary evidence that may be offered in support of any judgment that may be entered in said cause, all of which are attached hereto, marked Exhibit Nos. SX-1 (1-14) inclusive, and made a part hereof ...

The exhibit then contains the statements of Stephen Dunk, and Arnulfo Lopez. Also included are xerographic copies of two checks, one forming the basis of the instant indictment and another indicating a possible extraneous offense. There follows the inclusion of numerous police reports prepared by several police officers whose names are not included within the waiver of confrontation and cross-examination portion of the stipulations.

Not included in the exhibit although confrontation and cross-examination were waived as to them are statements of the witnesses Hector Garza and Rene Arizola.

The constitutional right of an accused to confrontation and the right to cross-examine witnesses against him is a right which may be waived. Griffith v. State, 391 S.W.2d 428 (Tex.Crim.App.1965). But if waiver of a constitutional right is to have any meaning, it must remain “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314, 317 (1966).

By specifically naming those witnesses appellant was willing to waive confrontation and cross-examination of, appellant, I do not believe, was giving the State Carte Blance to attach the statements of every other potential witness which could be dragged up. This is especially true in a case tried upon a plea of not guilty and which is not purely one tried upon stipulated proof.

In O’Conner v. State, supra and O’Conner v. State, 401 S.W.2d 240 (Tex.Crim.App.1966), cases involving guilty pleas, both opinions by Commissioner Dice, the issue was not one of identifying the witness whose confrontation and cross-examination were the subject of waiver. Rather, the narrow question presented was whether the State could substitute in the absence of an objection, a narrative statement by the prosecutor of what the evidence would be for the prior testimony of the witnesses which appellant agreed could be offered.

I find nothing in either case authorizing the majority to consider statements of witnesses whose confrontation and cross-examination have not been waived constitutionally and pursuant to TEX.CODE CRIM. PROC.ANN. art. 1.15. Furthermore, both O’Conner eases, insofar as they permit the State to substitute on the manner of stipulation agreed upon by the parties are correctly decided only if failure to object at the trial level constitutes a waiver by silence.

In all other respects I agree that the State’s proof falls short of that required for conviction.


author: FRED V. KLINGEMAN, Assigned Justice .

text:
    Jan Bean LYONS, Appellant, v. Neal MONTGOMERY, Ben O’Neal, Rio Grande Abstract and Title Company, Inc., d/b/a Amistad Title and Abstract Company and USLife Title Insurance Company of Dallas, Appellees.
    No. 04-83-00455-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 9, 1985.
    Rehearing Denied Jan. 30, 1985.

      Nick Duncan, Del Rio, for appellant.
    Stephen P. Allison, San Antonio, for ap-pellees.
    Before ESQUIVEL and REEVES, JJ., and FRED V. KLINGEMAN, Assigned Justice.
   OPINION

FRED V. KLINGEMAN, Assigned Justice .

This is a suit for damages involving alleged breach of contract, misrepresentations, failure to disclose, and deceptive trade acts with numerous parties involved, in which some of the parties on the appeal appear as both appellant and appellees.

Jan Bean Lyons filed suit for damages on September 22, 1981 in a District Court of Val Verde County, Texas against Neal Montgomery, Ben O’Neal, Rio Grande Abstract and Title Company, Inc. d/b/a Amis-tad Title and Abstract Company and US-Life Title Insurance Company of Dallas. On March 14,1983 an interlocutory summary judgment was signed by a district judge of Val Verde County ordering that Lyons take nothing against defendant USLife Title Insurance Company of Dallas. On March 16, 1983 trial on the merits began. Following the presentation of evidence by the parties, the case was submitted to a jury on a number of Special Issues. The jury findings will be hereinafter discussed. Three days following the discharge of the jury, Lyons was allowed, without notice to the defendants, to submit a trial amendment which included new allegations against Rio Grande. At a subsequent hearing, the trial court overruled Rio Grande’s objections and exceptions to the submitted trial amendment.

Judgment was rendered in favor of Lyons against Rio Grande in the amount of $30,907.61, but rendered against Lyons in favor of defendants Neal Montgomery and Ben O’Neal.

For brevity and clarity, Rio Grande Abstract and Title Co., Inc., d/b/a Amistad Title and Abstract Company will be generally referred to in this opinion as “Rio Grande”; Jan Bean Lyons as “Lyons”; Neal Montgomery and Ben O’Neal as “Montgomery”; and USLife Title Insurance Company of Dallas as “USTitle”.

Rio Grande has appealed from this judgment and Lyons has appealed from the take nothing judgment rendered against her in favor of Montgomery and O’Neal and further appeals from the summary judgment in favor of USLife.

We will first discuss Rio Grande’s appeal, because the basic background of the case and the material issues involved in the appeal are most thoroughly covered in such appeal.

RIO GRANDE’S APPEAL

Rio Grande asserts eleven points of error. We deem it necessary to discuss only points of error Nos. 5, 8, and 10.

Point of error No. 5 complains that the trial court erred in failing to enter a take nothing judgment against Lyons based upon the verdict.

Point of error No. 8. complains that the trial court erred in denying Rio Grande’s motion for judgment non obstante veredic-to because the evidence conclusively established as a matter of law that the owner’s title policy of insurance provided to Lyons by Rio Grande specifically excepts the deed of trust which contains a due on sale clause and consequently the jury’s verdict is unsupported by the evidence.

Point of error No. 10 asserts that the trial court erred in denying Rio Grande’s motion for judgment in that the pleadings, evidence, and jury’s findings conclusively established Rio Grande’s entitlement to judgment.

For the reasons hereinafter set forth we sustain these points of error.

We are of the opinion that the jury’s answers to Special Issues No. 1 and No. 15 are the material and controlling issues.

In Special Issue No. 1, the jury was asked whether Neal Montgomery failed to disclose to Lyons during the course of negotiations leading up to and including the entering into the contract of sale on the property involved that the existing deed of trust on the property contained a “due on sale” clause granting Rio Grande the option to mature the entire balance on the note secured thereby upon a sale of the subject property.

The jury in response to such inquiry answered: “He did not fail to so disclose.”

Special Issue No. 15 inquired if certain information had been disclosed by Rio Grande to Lyons, whether Lyons would have entered into the contract of sale. The jury in response to this Special Issue found: “She would have entered into such contract of sale”.

There is ample evidence to support the jury’s answer to these Special Issues. It is clear from the evidence that not only did Lyons know of the existence of the deed of trust, but also knew that it contained a “due on sale” clause, and was cognizant of the meaning and consequences of such a provision in the deed of trust.

Such evidence includes: (a) certain acts and statements made by Lyons; (b) testimony by a real estate agent involved in the sale, Alice Santos, that Lyons knew of the “due on sale” provision in the deed of trust and was aware of the effect of the “due on sale” clause; (c) testimony by the manager of Rio Grande that at the proceedings involving the closing of the sale, Lyons indicated that she knew the effect and meaning of the “due on sale” provision and indicated she could and would pay off the remaining balance due, or renegotiate the terms of the payment with the debt holder; (d) testimony by Neal Montgomery that it was his understanding that Lyons would pay or renegotiate the balance remaining on the note, if necessary.

We have concluded that the jury’s answer to Special Issues No. 1 and No. 15 are controlling and dispositive, and that the trial court should have granted Rio Grande’s motion for judgment. The trial court erred in failing to grant a judgment non obstante veredicto that Lyons take nothing by her suit.

It is clear that Lyons was aware of the potential ramifications of the purchase of the property with the existing deed of trust held by Rio Grande containing a “due on sale” clause. She was well aware that Rio Grande had the legal right to mature the amount due on the indebtedness against the property and institute foreclosure proceedings, and that under the foreclosure proceedings she could lose the property. Lyons cannot complain of the alleged failure of Rio Grande to disclose to her what she already knew.

DECEPTIVE TRADE PRACTICE

Lyons’ deceptive trade practice action is basically premised on her contention that the title company should have explained the meaning of a “due on sale” clause in more detail in the title policy. We find no merit in this contention for a number of reasons. We have already set forth in some detail that Lyons not only knew of the existence of the deed of trust at the time that she entered into the contract of sale, but she also knew that such deed of trust contained a “due on sale” clause and knew the meaning of such a “due on sale” provision. The title policy contained a number of “exceptions” in such policy. One of the exceptions refers to the deed of trust here involved by giving the title of such instrument and the recordation data (volume and page of the applicable mortgage or other record of the county in which the land is situated). This is legally sufficient to put a prospective purchaser or person who is interested in the property of the full contents of the deed of trust involved. It is not the purpose of a title policy to set forth in full detail a detailed explanation of the full terms and provisions of each instrument affecting the property, but give only sufficient information to put them on notice of the existence of such instruments. If every title exception in a title policy set forth the full details of every instrument involved, it would more resemble an abstract of title than a title policy. Under Lyon’s theory, if the property was subject to an oil gas and mineral lease, it would be necessary to set forth in minute detail the many things that are involved in this type of lease, such as the length of the primary term, the amount of delay rentals, the amount of royalty payable, etc.

See Jernigan v. Page, 662 S.W.2d 760 (Tex.App.—Corpus Christi 1983, no writ) where it was pointed out that the purpose of the recording statutes in Texas was to provide notice to all persons of the existence of recorded material and the effect of same, so that a person interested in the property could look at the full instrument by examining the record.

We have already pointed out the fact that Lyons was aware of the deed of trust containing a “due on sale” provision. In addition Lyons was also given notice of the deed of trust by the title policy, which identified the instrument and gave the recording data thereof.

The judgment of the trial court in favor of Lyons against Rio Grande is reversed, and judgment here rendered that Lyons take nothing against Rio Grande.

LYON’S APPEAL

Lyons appeals that part of the judgment granting: (1) a summary judgment to US-Life Title that Lyons take nothing by her suit against USLife Title; (2) a judgment that Lyons take nothing by her suit against Neal Montgomery and Ben O’Neal.

Lyons asserts eleven points of error which may be summarized as follows: the trial court erred (1) in not granting Lyons’ motion for judgment non obstante veredic-to as to defendant Neal Montgomery and Ben O’Neal because the evidence as a matter of law showed that these defendants had a legal duty to pay the accelerated indebtedness due to Rio Grande, and the failure to do so was a breach of contract as a matter of law; (2) in granting summary judgment in behalf of USTitle because there was some summary judgment evidence to support a cause of action against USTitle as plead in Lyons’ pleading; (3) the trial court erred in failing to submit to the jury nine Special Issues requested by Lyons.

THE LYONS-NEAL MONTGOMERY APPEAL

The trial court entered judgment that Lyons take nothing against Neal Montgomery and Ben O’Neal. We affirm these judgments for the same reason that we reversed and rendered the judgment in favor of Lyons against Rio Grande. Since we have set forth in full detail the general background applicable to this appeal in the Rio Grande appeal, including the material jury findings, we do not deem it necessary to reiterate such discussion. The record conclusively establishes that the judgment rendered by the court that Lyons take nothing against Neal Montgomery and Ben O’Neal is correct and it is, therefore, affirmed.

THE LYONS-USTITLE APPEAL

USTitle timely filed a motion for summary judgment. The summary judgment evidence is basically similar to the evidence previously discussed under the Rio Grande appeal. The summary judgment evidence specifically points out that the owner’s title policy issued to Lyons specifically excepts from coverage the deed of trust containing the “due on sale” clause. USTitle summary judgment evidence also shows the following: (1) Lyons’ admission of Item No. 1 of the request for admission of genuineness of document propounded to Lyons establishing the genuineness of the title policy exception which excepted the deed of trust containing the “due on sale” provision; (2) the oral deposition of the real estate agent involved in the sale that Lyons was aware of the “due on sale” clause in the deed of trust; (3) the contract of sale which was prepared by Lyons’ agent provided that such sale was specifically subject to the terms and provision of the “due on sale” clause.

Lyons did not file a controverting affidavit or other reply to USTitle’s motion for summary judgment. Rule 166-A(c) provides among other things that “issues not presented to the trial court by written motion, answer or other reply shall not be considered upon appeal as grounds for reversal.”

A non-moving party must expressly present to the trial court those issues that would defeat the moving party’s right to a summary judgment; failing to do so, such a party may not later assign this as error on appeal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 679 (Tex.1979); Miller v. Soliz, 648 S.W.2d 734 (Tex.App.—Corpus Christi 1983, no writ). A party moving for summary judgment does not have to negate all possible issues of law and fact that could have been raised by a non-moving party, but were not raised. City of Houston v. Clear Creek Basin Authority, supra.

The contract of sale is specifically subject to the terms and conditions of the deed of trust which contained the “due on sale” clause.

A summary judgment should be rendered if the pleadings, depositions, answers to interrogatories, admissions and affidavits on file at the trial of the hearing on the motion for summary judgment shows that no genuine issue of material fact exists on the issues expressly set forth in the motion.

USTitle’s summary judgment evidence established that no material issue of fact existed as to Lyons’ cause of action against USTitle.

Lyons asserts eleven points of error in her appeal. We have previously overruled her point of error No. 1 pertaining to Neal Montgomery and Ben O’Neal in this opinion in that portion of the opinion designated as the Lyons-Montgomery Appeal. We do not deem it necessary to further discuss Lyons’ point of error No. 1.

We have also heretofore in this opinion overruled and discussed in some detail Lyons’ point of error No. 2 complaining that the trial court erred in granting USTi-tle a summary judgment that Lyons take nothing against it. Consequently, we do not further discuss Lyons’ point of error at this time.

Lyons’ nine other points of error complain that the trial court erred in refusing to submit to the jury certain Special Issues requested by Lyons. We have examined and considered all of such requested Special Issues and do not consider them as controlling issues. The trial court did not err in failing to submit these Special Issues requested by Lyons. TEX.R.CIV.P. 277, 279; See Stone v. Metro Restaurant Supply, Inc., 629 S.W.2d 254 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.).

All of Lyons’ points of error have been considered and all are overruled.'

The judgment that Lyons take nothing against Neal Montgomery and Ben O’Neal is affirmed. The summary judgment in favor of USTitle is affirmed. The judgment that Lyons recover damages from Rio Grande is reversed and judgment here rendered that Lyons take nothing against Rio Grande.

       Assigned to this case by the Chief Justice of the Supreme Court of Texas as authorized pursuant to paragraph (d) of Article 1812, Texas Revised Civil Statutes as amended by H.B. 2244 (Acts 1983, 68th Leg., p. 1912, Ch. 354, Sec. 1, effective June 16, 1983).


author: EVANS, Chief Justice.

text:
    Allan S. MILLS, et al., Appellant, v. Leon F. KUBENA, et al., Appellee.
    No. 01-84-0516-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 10, 1985.
    Rehearing Denied Feb. 7, 1985.

      Gary Risley, Lawrence, Thornton, Payne, Watson & Kling, Bryan, for appellant.
    Jonathan Miller, Caperton, Rodgers & Miller, Bryan, for appellee.
    Before EVANS, C.J., and JACK SMITH and COHEN, JJ.
   OPINION

EVANS, Chief Justice.

This is an appeal from a permanent injunction entered against the appellants in a suit to enforce a deed restriction.

The appellees, Mr. and Mrs. Kubena and Mr. and Mrs. Rosynek, are home owners in a residential subdivision. The appellants, Mr. and Mrs. Mills, also live in the subdivision, on the same street as the appellees. The appellants entered into the commercial child care business and registered their premises as a family home under section 42.002(9) of the Texas Human Resources Code. That section defines a “registered family home” as:

a facility that regularly provides care in the caretaker’s own residence for not more than six children under 14 years of age, excluding the caretaker’s own children, and that provides care after school hours for not more than six additional elementary school siblings of the other children given care, but the total number of children, including the caretaker’s own, does not exceed 12 at any given time.

Tex.Hum.Res.Code Ann. sec. 42.002(9) (Vernon 1980).

On weekdays between 8 a.m. and 6 p.m., Mrs. Mills cared for up to six preschool children in her home and backyard. The children’s parents delivered them to and picked them up from the Mills home, which is located on a cul-de-sac. Traffic increased somewhat along the street in front of the appellees’ homes each day. The appellants’ backyard contained a swing set, a sand box, a jungle gym, a tire swing, and a merry-go-round for the children, who ranged in age from nine months to five years. The appellants reported income and deducted expenses related to their child care facility on their annual income tax returns.

In September 1982, the appellees brought this action to enforce a deed restriction that limited the use of subdivision lots to residential purposes. The trial court determined, as a matter of law, that the appellants’ use of their property violated the deed restriction, but it submitted an issue to the jury inquiring whether there had been a waiver of such restriction. The jury answered that issue in the affirmative. However, the trial court granted the appel-lees’ motion for judgment non obstante ve-redicto and entered judgment permanently enjoining the appellants from using their property for nonresidential purposes. They appeal from that judgment.

The appellants complain, in their second and fourth points of error, that the trial court erred in ruling as a matter of law that the use being made of their property violated the subdivision restrictions, because their operation of a registered family home was an incidental use of their home. In their briefs, the appellants concede, for purposes of argument, that their activity constituted a business, but they contend that the evidence presented a fact issue as to whether the activity violated the restriction to such a substantial degree as to entitle the appellees to injunctive relief.

The deed restriction provided in pertinent part:

No lot shall ever be used for any purpose except for residential purposes, and no lot shall ever be used for through traffic purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one detached single family dwelling not to exceed two and one-half stories in height and a private garage or carport other structure [sic] which supplements the residence, and use of which is compatable [sic] to the residence, such as fences, walls, pools, terraces, and similar landscaping features.

The trial court properly construed this provision as forbidding any use of the property for other than residential purposes. See Vaccaro v. Rougeou, 397 S.W.2d 501, 502-03 (Tex.Civ.App.—Houston 1965, writ ref’d n.r.e.).

The trial court also ruled properly in deciding, as a matter of law, that the nature of the appellants’ activity violated the deed restriction. The appellants’ full-time operation of a commercial child care facility constituted an ongoing business, which was conducted entirely on their residential premises. When the children were being delivered and picked up, traffic increased in the cul-de-sac, and that fact indicated, as did the appellants’ backyard playground facility, that appellants were conducting a business on their premises. Similar activities have been held to constitute prohibited activities in violation of residential subdivision restrictions. See, e.g., Park v. Baxter, 572 S.W.2d 794 (Tex.Civ.App.—Tyler 1978, writ ref’d n.r.e.) (use of home for music and swimming lessons); Fowler v. Brown, 535 S.W.2d 46 (Tex.Civ.App.—Waco 1976, no writ) (use of garage as a florist shop); Sumerlin v. Cox, 344 S.W.2d 742, 743 (Tex.Civ.App.—Eastland 1961, writ ref’d) (use of home as a music school).

We next consider whether the trial court committed reversible error in refusing to submit the appellants’ requested special issue, inquiring whether the use of their property constituted a substantial and distinct violation of the covenant prohibiting nonresidential use. In deciding this issue, we must consider not only the sufficiency of the evidence to support the submission of such an issue, but also whether the requested issue was in substantially correct form. We find that some evidence existed, from which reasonable minds might draw different conclusions, as to whether the appellants’ use of their home was a substantial violation of the deed restriction. There was testimony that the appellants’ use of their premises was merely a “babysitting” activity and that such use was unobtrusive, caused no appreciable damage to the property of other homeowners, and resulted in no inconvenience, annoyance, or discomfort to the neighbors. Thus, we conclude that there was legally sufficient evidence to support the submission of a special issue on the matter.

The next question is whether the appellees had the burden of obtaining an affirmative finding on the issue of substantial compliance or whether the issue was defensive in nature, imposing the burden on the appellants. This court has previously concluded that the issue in a residential restrictive covenant case is defensive in nature. Townplace Homeowners’ Association, Inc. v. McMahon, 594 S.W.2d 172, 175 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Therefore, the burden rested upon the appellants to request and tender a special issue in substantially correct form and to obtain an affirmative finding thereon. Tex.R.Civ.P. 279. See, e.g., Estate of Blardone v. McConnico, 604 S.W.2d 278, 282-83 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.).

The issue requested by the appellants inquired:

Do you find from a preponderance of the evidence that the use made by Allan and Andrea Mills of their residence in Camelot, Section IV, is a substantial and distinct violation of the covenant prohibiting non-residential uses?
In connection with answering this question you are intstructed [sic] that a substantial and distinct violation is one in which the use of the property complained of is an obtrusive use and not merely incidental to the use of the house as a residence.

This requested issue improperly placed the burden on the appellees to persuade the jury, by a preponderance of the evidence, that the appellants’ use constituted a substantial and distinct violation of the deed restriction. Since the requested issue was not in substantially correct form, the trial court did not err in refusing to submit it. Goodnight v. Phillips, 458 S.W.2d 196, 202 (Tex.Civ.App.—Houston [1st Dist.] 1970, writ ref’d n.r.e.). We accordingly hold that the trial court acted within its discretion in granting the appellees’ application for in-junctive relief upon the evidence before it. We overrule the appellants’ second and fourth points of error.

We also overrule the appellants’ third point of error, in which they contend that, as a matter of public policy, their operation of a registered family home does not violate the residential use restriction. Although the Texas Human Resources Code does express a state policy of insuring the protection of children in child care facilities and of encouraging and assisting in the improvement of child care programs, this general language cannot reasonably be construed as adequate support for the appellants’ contention that a registered family home does not, as a matter of law, violate a residential use covenant.

We next consider the appellants’ first point of error, in which they assert that the trial court erred in disregarding the jury’s finding on the issue of waiver. We overrule this point.

The trial court submitted a special issue inquiring whether there had been a waiver of the restriction prohibiting the use of subdivision lots for other than residential purposes. The jury was instructed that, in order to find such a waiver, there had to be evidence showing such other nonresidential activities as would lead a reasonable person to conclude that the restriction had been abandoned and its enforcement waived. The factors to be considered in answering this issue were the number, nature, and severity of any prior nonresidential use violations, any previous acts of enforcement of the restriction, and, additionally, whether it was still possible to realize to a substantial degree the benefits protected by the restriction. The instruction further required the evidence to show that the preexisting nonresidential use violations were substantial in nature and materially affected the use of all the appellees’ lots for residential purposes. Finally, all appellees had to have knowledge of the other violations for a waiver to occur.

There was some evidence of other business activity in the neighborhood. The appellants focus their argument on the activities of Mr. Emery Ragsdale, who stored and repaired video game machines from his business in his garage and driveway. Employees of Mr. Ragsdale, driving unmarked vehicles, frequently visited his house, which was situated diagnonally across the street from the Rosyneks’ home. There was testimony indicating that some residents of the subdivision knew of Mr. Rags-dale’s business-related activities and also that it was possible to see the boxes containing video game machines from the Ro-syneks’ home. However, there was no showing that the Rosyneks themselves knew of Mr. Ragsdale’s activities and recognized them to be commercial or that the other appellees were aware of such activity. Even considered in its most favorable light, the evidence raises no more than a mere suspicion that the appellees knew of other alleged violations in the subdivision, and the trial court did not err in disregarding the jury’s finding on the issue. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

The appellants’ points of error five and six complain that the trial court erred in excluding certain proffered testimony on the effect of zoning in the location of registered family homes and on the difference between a day-care center and a registered family home. Under these points, the appellants argue that testimony on the effect of zoning and on the difference between day-care centers and registered family homes should have been allowed, particularly to rebut the references at trial to a “day-care center cul-de-sac.” The appellants have not demonstrated how such testimony would be relevant in deciding whether there was a substantial violation of the deed restriction in this particular case. Furthermore, we note that there is no bill of exception in the record showing what the testimony would have been concerning the distinction between a day-care center and a registered family home. We conclude that the trial court did not abuse its discretion in excluding this evidence. We overrule the appellants’ fifth and sixth points of error.

We affirm the trial court’s judgment.


author: CADENA, Chief Justice.

text:
    Jesus Hernandez SALDANA, Jr., Principal & Raymond Rangel, Surety, Appellants, v. STATE of Texas, Appellee.
    No. 04-82-00262-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 16, 1985.

      Douglas S. Daniel, San Antonio, for appellants.
    Miguel Martinez, San Antonio, for appel-lee.
    Before CADENA, C.J., and BUTTS and DIAL, JJ.
   OPINION

CADENA, Chief Justice.

Appellant, Raymond Rangel, surety on a bail bond for Jesus Hernandez Saldana, Jr., complains of a judgment, following forfeiture of the bond, allowing him only a 50% remittitur of the amount of the bond after the principal was returned to custody. Appellant contends that he was entitled to a remittitur of 95% of the amount of the bond.

We affirm the judgment of the trial court.

On November 24, 1980, after the principal failed to appear in court, the bond was declared forfeited and a judgment nisi was signed on December 11, 1980.

On November 11, 1981, the principal was rearrested, and on November 19, 1981, a summary judgment on the bond was rendered against appellant. On February 22, 1982, the trial court granted appellant a 50% remittitur of the $15,000.00 bond, plus expenses of $2,100.00 incurred by appellant in procuring the return to custody of the principal.

At the time of the judgment nisi, the applicable statute limited the amount of remittitur to 50% of the amount of the bond. Appellant argues that since he procured the return of the principal within two years of the judgment nisi and after the effective date of the amendment mandating a remittitur of 95%, the trial court erred in limiting the remittitur to 50%.

This Court has held that TEX. REY.CIV.STAT.ANN. art. 2372p-3 § 13(b), which requires a 95% remittitur is unconstitutional. Williams v. State, 670 S.W.2d 717 (Tex.App.—San Antonio 1984, pet. granted). We adhere to the Williams decision. Since appellant’s claim is based solely on the provisions of an unconstitutional legislative act, it must be rejected and there is no need to consider whether the enacted 1981 amendment is applicable to a declaration of forfeiture and a judgment nisi entered prior to the effective date of such amendment.

The judgment of the trial court is affirmed.


author: CANTU, Justice.

text:
    Leroy R. PANELLI, Appellant, v. STATE of Texas, Appellee.
    No. 04-83-00569-CR.
    Court of Appeals of Texas, San Antonio.
    Jan. 16, 1985.

      Joe Hernandez, San Antonio, for appellant.
    Sam Millsap, Jr., Dist. Atty., Lawrence A. Smith, Charles Estee, Criminal Dist. Atty., San Antonio, for appellee.
    Before CANTU, TIJERINA and DIAL, JJ.
   OPINION

CANTU, Justice.

Appeal is taken from a probation revocation. Appellant was convicted of driving while intoxicated in cause number 298,262 in the County Court at Law Number 2 of Bexar County on December 22, 1982. Imposition of sentence was suspended and appellant was placed on probation for two years. Among the conditions of probation was a requirement that appellant “commit no offense against the laws of this or any other State or the United States.”

A motion to revoke probation was filed by the Bexar County District Attorney on April 27, 1983, alleging that appellant had violated probationary condition number 1 in that on or about the 5th day of March, 1983, appellant had operated a motor vehicle upon a public road while under the influence of intoxicating liquor in Live Oak County, Texas.

The revocation hearing was conducted on July 21,1983 and the State’s sole proof was in the form of stipulated evidence. The evidence consisted of a certified copy of an order entered by the County Court of Live Oak County on May 24, 1983, in cause number 7992 indicating that appellant had been granted deferred adjudication in a proceeding arising from a driving while intoxicated violation.

Solely upon the stipulated evidence the trial court revoked probation and sentenced appellant. Oral notice of appeal was given in open court.

On August 19, 1983, appellant filed both a motion for new trial and a written notice of appeal. The motion for new trial was overruled on August 26, 1983. No new notice of appeal was given.

Appellant urges that the trial court abused its discretion in revoking probation solely upon the stipulated evidence introduced at the hearing. The State, in its brief, recognizes the validity of appellant’s contention pointing out that an order granting deferred adjudication is not a final conviction such as will support an order revoking probation. See Harris v. State, 169 Tex.Cr.R. 71, 331 S.W.2d 941 (Tex.Crim.App.1960); Prince v. State, 503 S.W.2d 777 (Tex.Crim.App.1974).

The State also correctly recognizes that the order entered in cause number 7992 does not spell out when the offense forming the basis of the deferred adjudication was committed. Therefore, it is impossible to ascertain that the offense was committed subsequent to the granting of probation in cause number 298,262. The State thus admits that the trial court abused its discretion in revoking probation based upon the meager proof offered.

However, the State argues that this Court may not reach the merits of the appeal inasmuch as appellate jurisdiction of this Court never properly attached.

The State points out that both of the notices of appeal given by appellant were premature.

TEX.CODE CRIM.PROC.ANN. art. 44.-08 requires that notice of appeal be given within fifteen days after the defendant’s motion for new trial is overruled or within fifteen days after sentencing.

TEX.CODE CRIM.PROC.ANN. art. 40.-05 provides that a motion for new trial may be filed prior to or within thirty days after sentence is imposed or suspended in open court.

Appellant’s motion for new trial was filed within thirty days after sentence was imposed and was therefore timely filed. Since the written as well as the oral notice of appeal were given and filed prior to a ruling upon the motion for new trial, the State argues, the notices were premature. Gordon v. State, 627 S.W.2d 708 (Tex.Crim.App.1982); Richie v. State, 598 S.W.2d 264 (Tex.Crim.App.1980); Menasco v. State, 503 S.W.2d 273 (Tex.Crim.App.1973).

Following the enactment of the Texas Rules of Post-Trial and Appellate Procedure in criminal cases which became effective September 1, 1981, several courts of appeal have drawn upon TEX.R.CRIM. APP.P. 211 and TEX.R.CIV.P. 306c to construe a premature notice of appeal as being timely filed.

TEX.R.CRIM.APP.P. 211 provides:

Where not inconsistent with the Code of Criminal Procedure and these rules, as they now exist or may hereafter exist, the Rules of Civil Procedure shall govern proceedings in the courts of appeals in criminal cases.

TEX.R.CIV.P. 306c provides:

[n]o notice of appeal ... shall be held ineffective because prematurely filed; and every such ... notice of appeal ... shall be deemed to have been filed on the date of but subsequent to ... the date of the overruling of motion for new trial, if such motion is filed.

We agree with the holdings of our brethren in Johnson v. State, 649 S.W.2d 153 (Tex.App.—Austin 1983, no pet.) and Mayfield v. State, 627 S.W.2d 474 (Tex.App.—Corpus Christi 1981, no pet.) that a premature notice should be given the effect of timeliness so as to do a defendant justice in keeping with the spirit of the new post trial and appellate rules. See also concurring opinion of Miller, J. in Ex parte Drewery, 677 S.W.2d 533 (1984).

We recognize that the question of premature notices of appeal as affected by the new Rules of Post-Trial and Appellate Procedure has not been directly addressed by the Court of Criminal Appeals and that our holding is contrary to past precedents of that Court. Nevertheless we read TEX.R. CRIM.APP.P. 211 to apply where not inconsistent with the Code of Criminal Procedure and the rules of post-trial and appellate procedure and we find no conflict. We believe that rule 211 was intended to make appellate procedure uniform in the courts of appeal under their new expanded jurisdiction. When viewed from this perspective we are not persuaded that prior holdings of the Court of Criminal Appeals on the question now before us mandate continued application of reasoning rendered inappropriate by the very purpose of the rule.

We hold that the appeal is properly before us for review and in keeping with our expressed opinion on the merits of the appeal we reverse the judgment of the trial court and remand the cause. Shaw v. State, 622 S.W.2d 862 (Tex.Crim.App.1981); Davenport v. State, 574 S.W.2d 73 (Tex.Crim.App.1978).


author: PER CURIAM.

text:
    The STATE of Texas, Appellant, v. Miles B. SINK, Appellee.
    No. 05-84-00713-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 18, 1985.
    Tom Streeter, Asst. Dist. Atty., Dallas, for appellant.
    Thomas J. Lochry, Dallas, for appellee.
    Before AKIN, STEWART and KEITH, JJ.

      . This opinion was prepared and approved by Justice Stewart prior to the expiration of her term of office on December 31, 1984.

      . The Honorable Quentin Keith, Justice, Ninth Supreme Judicial District, retired, sitting by assignment.

   PER CURIAM.

This is an expunction case. The State of Texas appeals, urging in one point of error that the trial court erred in granting Miles B. Sink’s petition to expunge his arrest record because the dismissal in Sink’s criminal case did not show absence of probable cause. Sink moved this Court to dismiss the appeal on the ground that the State lacks standing as a party to directly appeal this ex parte matter. We sustain the State’s point of error and deny Sink’s motion. Accordingly, we reverse the trial court’s judgment and render judgment denying expunction of Sink’s arrest record.

We turn first to Sink’s motion to dismiss this appeal. The 1979 amendment to TEX.CODE CRIM.PROC.ANN. art. 55.-02, 3(a) (Vernon Supp.1984) provides in part:

Any petitioner or agency protesting the expunction may appeal the court’s decision in the same manner as in other civil cases....

Sink now concedes that this language disposes of the issue raised in his motion. We agree and therefore deny the motion.

We now address the substance of this appeal. Sink was arrested and the grand jury indicted him for indecency with a child, a second degree felony. However, the prosecutor dismissed the indictment when the trial judge ruled, after an in-chambers examination, that the three-year-old female complainant was incompetent to testify at trial. Later Sink petitioned to expunge his record pursuant to TEX.CODE CRIM. PROC.ANN. art. 55.01 (Vernon Supp.1984). The same judge presided over both the criminal case and the expunction proceedings.

To prove that he was entitled to expunction, Sink’s only evidence was the State’s motion to dismiss which, with the court’s stamped approval and signature, also constituted the dismissal order. The motion in pertinent part recites:

The complainant in this case is three years old. On November 18, 1983, a hearing was held in [the judge’s] chambers to determine if the complainant was competent to testify. The judge ruled that the complainant was not competent to testify. Without this testimony a pri-ma facie case cannot be proved....

Although Sink did not offer the record of the in-chambers examination into evidence at the expunction hearing, the trial judge states in his findings that he recalled and considered the entire criminal proceeding in deciding to grant Sink’s petition. Sink has included in the appellate record the transcript of the in camera hearing and the child’s testimony before the grand jury, which was before the trial court as an exhibit to Sink’s motion to suppress her testimony on grounds of incompetency.

In its sole point of error, the State contends that the dismissal did not show absence of probable cause. It conceded in its brief that Sink satisfied the conditions in paragraphs 2 and 3 of article 55.01. Thus, we need only determine whether Sink proved that he met the conditions contained in paragraph 1 of that article, which provides in pertinent part:

A person ... arrested for ... a felony ... is entitled to have all records and files relating to' the arrest expunged if each of the following conditions exist: (1) an indictment ... charging him with ... a felony was presented, it has been dismissed and the court finds it was dismissed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of dismissal to believe the person committed the offense ...;

The State argues that facts which come to light after the issuance of the indictment may be used to show absence of probable cause for the presentment (1) only if they constitute the reason stated for the dismissal in the motion to dismiss and (2) only if they existed when the indictment was issued. We need not address here the issue of whether the trial court in an expunction hearing may look beyond the reason alleged in the State’s motion to dismiss to determine if the State’s “true” reason for dismissing the case was because the presentment of the indictment had been made because of mistake, false information, etc. This is true because in his ex-punction case, Sink relies solely on the motion and order of dismissal to establish the State’s reason for dismissing the criminal case. Thus, both sides agree that the reason for dismissal was the incompetency of the complaining witness to testify at trial. This case, therefore, may be distinguished from Cyrus v. State, 601 S.W.2d 776 (Tex.Civ.App.—Dallas, 1980, no writ) where apparently neither the motion nor the order of dismissal was offered into evidence by either side and the issue litigated there was the reason for the dismissal.

However, we agree with the State’s second proposition that the facts relied on in an expunction hearing to show absence of probable cause at the time of dismissal must have been in existence when the indictment was issued, because the plaintiff’s burden is to present facts to prove that the presentment had been made because of a mistake, false information or the like.

In his findings of fact and conclusions of law regarding paragraph 1 of article 55.01, the trial court stated in relevant part:

The trial court concluded that the case had been dismissed due to the witness’ incompetency to testify and that the aforesaid incompetency constituted mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense.

It is apparent that the trial judge made no finding relating the reason for dismissal back to the reason for the presentment of the indictment by the grand jury. Sink was plaintiff in the trial court and therefore had the burden of proof to affirmatively show that the indictment “was dismissed because the presentment had been made because of mistake, false information, or other similar reason_” When this statement is reduced to its component parts, it is apparent that paragraph 1 requires both that mistake, false information, or similar reason cause the presentment and that the fact of wrongful or mistaken presentment cause the dismissal. In other words, but for the reason for dismissal, the indictment would not have been presented. In addition, a finding that the presentment had been made because of false information or mistake requires proof that the grand jury based its decision to indict on erroneous facts; we conclude that any “other similar reason” also must establish that the grand jury acted on incorrect facts.

Appellant maintains that because the child was found incompetent to testify at the time of trial, the trial court could conclude that the child was also incompetent at the time she testified before the grand jury at an earlier point in time. Thus, he contends that, because the presentment was based on presumably incompetent testimony, there was no probable cause at the time of dismissal to believe he committed the offense charged. We disagree.

In his brief Sink states that the child’s remarks before the grand jury “would have perhaps warranted investigating by the Department of Human Resources, but did not warrant a felony prosecution and indictment.” Appellant, in effect, is arguing that the grand jury did not have sufficient evidence before it to present the bill of indictment, not that the grand jury had erroneous evidence before it that caused the presentment.

The validity of an indictment may not be attacked on the ground that it was not based upon sufficient evidence. Thomas v. State, 578 S.W.2d 691, 699 (Tex.Crim.App.1979); Tarpley v. State, 565 S.W.2d 525, 532 (Tex.Crim.App.1978). The grand jury alone judges the competency and sufficiency of the testimony upon which they act in returning a bill of indictment, Barnes v. State, 134 Tex.Cr.R. 461, 116 S.W.2d 408, 409 (1938).

Assuming that the child was incompetent to testify before the grand jury, this fact is only relevant to the issue of the sufficiency of the evidence before that body; it does not prove that the grand jury acted on erroneous information. Sink has not presented any evidence to controvert the facts presented to the grand jury.

We conclude that a showing of insufficient evidence to convict beyond a reasonable doubt will not support expunction; a plaintiff must further show that, at the time of dismissal, there was lack of probable cause to indict. Sink failed to carry his burden of proof on this issue. We hold that incompetency of a witness to testify at trial does not indicate an absence of probable cause for issuance of an indictment. The State’s point of error is sustained.

The judgment of the trial court is reversed and judgment rendered that the petition for expunction be denied.


text:
    Theresa BROWN and Jefferson Vaughn, Relators, v. Honorable James E. BARLOW, Respondent.
    No. 04-84-00560-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 21, 1985.
    Stephen E. Vangaasbeck, Eric Turton, San Antonio, for relators.

      Charles Estee, San Antonio, for respondent.
    Before BUTTS, CANTU and REEVES, JJ.
   OPINION

PER CURIAM.

We are asked in this original mandamus proceeding to vacate a district court order that orders the destruction of several items of personal property under the forfeiture provisions of TEX.CODE CRIM.PROC. ANN. art. 18.18 (Vernon Supp.1984). The petition for writ of mandamus is denied.

The record in this proceeding consists only of a certified copy of the order signed by respondent James Barlow, Judge of the 186th Judicial District Court of Bexar County, Texas, and a statement of facts of the hearing held below before Judge Barlow. This forfeiture proceeding apparently was originated by the State seeking forfeiture and destruction of the following items:

One (1) spiral note pad containing the names, preferences and prices charged persons seeking the services of prostitutes;
Four (4) steno pads containing the dates, times, payments and names of customers of the Respondent’s [Brown’s] prostitution business; and
Several loose pieces of paper containing the names of customers, dates and times (of appointments) and charges to customers of the prostitution business.

These pads and papers were seized in connection with the prosecution of relator Brown in a prior proceeding for the offense of aggravated promotion of prostitution. They were admitted into evidence at a hearing on a motion to suppress evidence but were not a part of the stipulated evidence admitted at trial. Brown’s conviction for aggravated promotion of prostitution was affirmed by this Court in an unpublished opinion.

Subsequent to our affirmance of Brown’s conviction, this proceeding was originated, and a hearing was held at which both sides appeared and argued but offered no evidence.

Judge Barlow’s order found that the pads and papers were criminal instruments and contraband as defined by TEX.PENAL CODE ANN. § 16.01(b) (Vernon Supp. 1984). He ordered them destroyed but delayed their destruction “for 30 days to allow Relator [Brown] to take any appellate steps available to her.” The order was signed under the cause number of the original criminal proceedings against Brown.

Brown claims that the pads and papers are her property. She argues in her brief that these documents are not criminal instruments, and that by offering no evidence at the hearing the State failed to meet its burden of proof. The State’s primary contention is that we have no jurisdiction in this matter because Brown has an adequate remedy at law by way of appeal. In response to the State’s contentions, Brown maintained at oral argument that she could not have appealed the order because it was filed under a criminal cause number. Brown reasons that since a forfeiture proceeding is in rem and civil in nature in that it is a suit against the thing and not against the person, there is no sentence imposed, but since the order bears a criminal cause number, the appellate timetables would begin to run from sentencing. See TEX.CODE CRIM.PROC.ANN. art. 44.08 (Vernon Supp.1984). She therefore argues that an appeal of this matter is impossible since there is no sentence to trigger the time when the appeal begins to run.

The exercise of mandamus jurisdiction is authorized only in cases where no other adequate remedy is available. If an appeal would provide an adequate remedy, our mandamus jurisdiction will not be invoked. Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 829 (1961). In a case involving article 18.18, the Supreme Court impliedly held that such orders are appealable. State v. Rumfolo, 545 S.W.2d 752 (Tex. 1976). See also State v. Dugar, 553 S.W.2d 102 (Tex.1977); Alexander v. State, 553 S.W.2d 825 (Tex.Civ.App.—Beaumont 1977, no writ). Destruction of the property could have been stayed by a supersedeas bond, TEX.R.CIV.P. 364, or perhaps by an original injunction proceeding in this court after perfection of the appeal. TEX.REV. CIV.STAT.ANN. art. 1823 (Vernon 1964). As we have noted, Judge Barlow’s order suspended its execution for 30 days to provide Brown adequate time to pursue such remedies. Brown cited us to Rumfolo in her brief and recognized at oral argument that that case was before the Supreme Court by way of appeal. Admittedly, she recognized that such orders are appealable but deliberately chose to pursue this petition for writ of mandamus rather than an appeal.

We reject Brown’s contention that the fact that the order bore a criminal cause number somehow circumvented her right to appeal. Bond forfeiture cases, for example, arise out of criminal proceedings but are controlled by the laws and rules applicable to the review of civil actions. TEX.CODE CRIM.PROC.ANN. art. 44.44 (Vernon 1979); Surety Insurance Co. of California v. State, 514 S.W.2d 454, 455 (Tex.Crim.App.1974). Proceedings of such nature are not beyond the scope of this Court’s purview, and do not present us with any insurmountable jurisdictional problems. Likewise, a forfeiture proceeding is one in rem and is a proceeding of a civil nature. State v. Rumfolo, 545 S.W.2d at 754. Although the instant cause bore a criminal trial court number, it remained civil in nature and would have been treated in this Court as a civil appeal under the applicable rules of civil procedure. Brown’s time to perfect her appeal from this order would have run from the date of the signing of the order. TEX.R.CIV.P. 306a.

The second relator, Jefferson Vaughn, claims no ownership interest in the pads and papers. He claims that these documents are needed as evidence in a libel suit filed against him arising out of a statement made by Vaughn that the plaintiff in the libel suit was a client of Brown’s. Vaughn alleges that the appearance of the plaintiff’s name in the documents ordered destroyed would constitute an absolute defense to the libel action. Vaughn filed a Motion in Intervention in the proceedings below which was denied by Judge Barlow. He therefore has not invoked our mandamus jurisdiction. The writ of mandamus cannot be used to review an order refusing an intervention. Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856, 861 (1919); Boswell, O’Toole, Davis & Pickering v. Stewart, 531 S.W.2d 380, 382 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ). Vaughn’s remedy, if any, is by way of appeal. Matthaei v. Clark, 216 S.W. at 861. Thus, because Vaughn too has a remedy by way of appeal, we must deny his petition for writ of mandamus.

Accordingly, relators’ petition for writ of mandamus is denied. Our temporary orders entered at the time leave to file this writ was granted are dissolved.

      .Although Rumfolo was an appeal of a proceeding that originated in a Justice of the Peace Court, there is no question that Judge Barlow had jurisdiction to hear this matter. Article 18.18(b) provides that "the magistrate to whom the return was made" shall decide the forfeiture question. While the magistrate to whom the return is made is usually a justice of the peace, TEX. CONST, art. V, § 8 provides that the district courts shall have original jurisdiction in all suits on behalf of the State to recover penalties, forfeitures and escheats. The Supreme Court has held that art. 18.18 did no more than to grant concurrent jurisdiction to a court to which the return was made that was not also a district court. State v. Dugar, 553 S.W.2d 102, 105 (Tex.1977).

      . While we do not reach the merits of this action, we note that the State, by failing to offer evidence, did not meet its initial burden of proof. See State v. Rumfolo, 545 S.W.2d at 754. Had Brown perfected an appeal from this order she might well have prevailed.

      . Vaughn admitted at oral argument that he had other legal remedies available to him that he had not yet exhausted. Thus, even if he could show standing, he would not be entitled to the writ of mandamus.


author: SHANNON, Chief Justice.

text:
    The UNIVERSITY OF TEXAS AT AUSTIN, By and Through the BOARD OF REGENTS OF the UNIVERSITY OF TEXAS SYSTEM, Appellant, v. The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, et al., Appellees.
    No. 13873.
    Court of Appeals of Texas, Austin.
    Jan. 23, 1985.
    Rehearing Denied Feb. 27, 1985.
    Jim Mattox, Atty. Gen., Jerry D. Cain, Asst. Atty. Gen., Austin, for appellant.
    Robert M. Roller, Graves, Dougherty, Hearon & Moody, Austin, for appellees.
    Before SHANNON, C.J., and EARL W. SMITH and BRADY, JJ.
   SHANNON, Chief Justice.

Appellant, The University of Texas at Austin, filed suit in the district court of Travis County, seeking a declaration of its rights concerning, among other things, the ownership of the telecast rights to its football games. Appellees filed a motion for summary judgment. The district court granted appellees’ motion and rendered judgment that the University take nothing. The University perfected an appeal from that judgment to this Court.

Before the appeal was set for submission upon oral argument, the University, as appellant, filed its “motion to remand with instructions to dismiss as moot.” Appel-lees lodged no objection to the dismissal of the appeal in this Court, but strenuously opposed that part of the relief seeking to set aside the district court’s judgment. This Court will dismiss the appeal as moot and will vacate the district court’s judgment.

By its suit, the University sought a declaration of the rights of the parties with respect to:

(1) Ownership of the telecast rights, including cablecasting, to the football games of The University of Texas at Austin;

(2) the right to contract with television networks for the sale of said telecasting and cablecasting rights;

(3) the obligations of membership in the NCAA under the Constitution and Bylaws of the Association;

(4) the validity of the amendments to the NCAA Constitution and Bylaws set out in certain proposals and adopted by the NCAA Convention on January 12, 1982; and

(5) the validity of any contracts with television broadcasters and cablecasters signed by the NCAA and purporting to bind the University until the Board of Regents of the University has approved the same in accordance with Texas Education Code § 65.34.

The University sought ancillary relief by way of temporary and permanent injunc-tive orders.

Appellees filed their motion for summary judgment and, as grounds therefor, claimed:

(1) The district court was without jurisdiction in that the University had requested an advisory opinion;
(2) The University had not “alleged sufficient grounds that would permit the Court to interfere in the internal affairs of the [appellees]”;
(3) The University had not “exhausted its remedies within the association with regard to the ‘grievances’ it alleges in this suit”;
(4) The University, being a “long-standing member of the Association”, consented to be bound by all Bylaw and constitutional provisions of the Association;
(5) Section 65.34 of Texas Education Code is inapplicable and does not concern itself with the character of rights here involved; and
(6) Section 65.34, even if applicable, is applicable only to tlie conduct of the University and the appellees.

The judgment of the district court recited that appellees’ motion for summary judgment was “meritorious” and decreed simply that the University “take nothing by its suit.” The judgment did not declare any rights of the parties.

The basis for the University’s motion to dismiss as moot is an opinion and judgment of the Supreme Court of the United States decided in June of 1984. National Collegiate Athletic Ass’n v. Board of Regents of the University of Oklahoma and University of Georgia Athletic Ass’n, — U.S. -, 104 S.Ct. 2948, 82 L.Ed.2d 70 (1984). The Supreme Court held, in general, that the television plan that the NCAA adopted for the 1982-85 seasons violated § 1 of the Sherman Act, 15 U.S.C. § 1 (1973). The University claims that the Supreme Court’s opinion voids appellees’ plan and “entirely settles the controversy between the parties before this Court and renders the present litigation moot.”

Appellees claim, on the other hand, that the issues determined by the United States Supreme Court are separate and distinct from those determined by the district court in this cause. Appellees suggest that “The NCAA has prevailed on the merits of the issues litigated here [in the district court] and is entitled to the res judicata effect of the judgment in order to foreclose relitigation of those issues.” Appellees argue that there are issues here on appeal which are not moot and although the University is free to dismiss its appeal, the judgment of the district court should not be vacated.

The rule of law pursuant to the Uniform Declaratory Judgments Act, Tex. Rev.Civ.Stat.Ann. art. 2524-1 (1965) is that if a declaratory judgment will terminate the uncertainty or controversy giving rise to the lawsuit, the trial court is duty-bound to declare the rights of the parties as to those matters upon which the parties join issue. Calvert v. Employees Retirement System of Texas, 648 S.W.2d 418 (Tex.App.1983, writ ref’d n.r.e.); Calvert, Declaratory Judgments in Texas, 14 St. Mary’s L.J. 1 (1982).

The district court in this declaratory judgment suit failed to declare anything. Rather, the Court’s judgment simply granted appellees’ motion for summary judgment and ordered that the University “take nothing by its suit.”

For all that anyone knows, the district court may have concluded that the University failed to exhaust its “remedies with the Association”, or possibly, the district court may have concluded that the University was seeking an impermissible “advisory opinion.” Finally, the district court may have gone off on some unarticulated substantive ground.

As a result, this Court is in no position to ascertain what determinations the district court made so as to compare those determinations with the holdings of the Supreme Court of the United States. We might add that appellees, perhaps for the same reason, have not pointed out to this Court any specific issue determined by the district court that was not passed on by the Supreme Court of the United States.

Appellant’s motion is granted to the following extent. The appeal is dismissed and the judgment is vacated. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863 (1943).

      . Appellees are The National Collegiate Athletic Association, The NCAA Committee On Infractions and The NCAA Council.


text:
    John PRUETT, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-213-CR.
    Court of Appeals of Texas, Austin.
    Jan. 30, 1985.

      J.W. Howeth, Austin, for appellant.
    Ken Oden, County Atty., Claire Dawson-Brown, Asst. County Atty., Austin, for ap-pellee.
    Before SHANNON, C.J., and EARL W. SMITH and BRADY, JJ.
   PER CURIAM.

Appeal is taken from a judgment of conviction for failure to keep records of purchase of crafted precious metals. 1981 Tex.Gen.Laws, ch. 500, § 4, at 2148 [Tex. Rev.Civ.Stat. art. 9009a, § 4, subsequently amended]. After the jury found appellant guilty, the court assessed punishment at a $300 fine and twenty days in jail, probated.

In his sole ground of error, appellant contends his conviction is void because the charging instrument fails to allege an offense. The information alleges that on or about October 7, 1981, appellant

did then and there knowingly and intentionally purchase an item of crafted precious metals from Danny Tilton, who was not a manufacturer or regular dealer in crafted precious metals, in the course of business and did then and there fail to record [in a well-bound book at the said John Pruett’s place of business] a description of the said item purchased, the name and address of Danny Tilton, and the driver’s license number or information from some other method of identification from the said Danny Tilton....

Appellant contends the charging instrument is fundamentally defective because it omits the culpable mental state. Although the information charged he did “knowingly and intentionally purchase an item of crafted precious metals,” appellant argues the charging instrument should have alleged “knowingly and intentionally fail to record” in order to allege an offense. We disagree.

As enacted by the 67th Legislature, Regular Session, effective September 1, 1981, art. 9009a (Crafted Precious Metals; Dealer Purchase & Disposition), § 4, provided the following:

Sec. 4 (a) Each dealer shall keep at the dealer’s place of business a well-bound book in which the dealer shall enter for each transaction in which the dealer purchases an item made of crafted precious metals, if it was purchased by the dealer in the course of business and if purchased from other than a manufacturer of or a regular dealer in crafted precious metals:
(1) a description of each item purchased and the serial number of the item, if available;.
(2) the name and address of the seller;
(3) the driver’s license number of the seller or information from some other method of identification.
(b) Each dealer shall preserve the records required by this section for one year from date of purchase or until the item is sold, whichever occurs later.
(c) A person who fails to keep a record as required by this section commits a Class B misdemeanor.

As seen from the statutory language, no culpable mental state is expressly provided for this offense. Appellant relies on Tex. Pen.Code Ann. § 6.02(b) (1974), which provides:

If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element.

To answer appellant’s contention, we find it useful to apply the analysis suggested by Judge Clinton in his concurring opinion in Lugo-Lugo v. State, 650 S.W.2d 72 (Tex.Cr.App.1983) (opinion on State’s motion for rehearing, concurring opinion, J. Clinton). Under this analysis, § 4 of art. 9009a contains a “nature of conduct” element (failure to keep the required record of purchase) and a “circumstance of conduct” element (purchase made in the course of business from a person other than a manufacturer or regular dealer). Taking the latter element first, we find § 4 does not plainly dispense with a culpability requirement and we therefore hold that the State must plead and prove the accused dealer knew the person from whom he purchased the crafted precious metals was not a manufacturer or regular dealer, or the accused dealer was reckless with respect to this circumstance. Tex. Pen.Code Ann. §§ 6.02(c), 6.03(b) and (c), supra. However, we find that § 4 imposes on the accused dealer a mandatory duty to record all purchases made from persons he knows are not manufacturers or regular dealers. In other words, the statute plainly dispenses with a culpability requirement with respect to the “nature of conduct” element.

The allegation that appellant did “knowingly and intentionally purchase an item of crafted precious metals from Danny Tilton, who was not a manufacturer or regular dealer in crafted precious metals, in the course of business,” sufficiently alleges the culpable mental state required for the “circumstance of conduct” element. As this is the only culpable mental state required by § 4, art. 9009a, the information is not fundamentally defective.

Even if it is assumed that § 4 requires a culpable mental state with respect to the “nature of conduct” element; that is, proof the accused dealer intentionally, knowingly, or recklessly failed to keep the required record, we find the instant information sufficient. The rules of grammar and common sense require a culpable mental state to be read to apply to each element of conduct that follows it. See Lugo-Lugo v. State, supra. This principle is particularly accurate when the culpable mental state of “intentionally” or “knowingly” is alleged at the beginning of the charging instrument. Id.

Applying the rules of grammar and making a common sense reading of the charging instrument in this case, we find the culpable mental states of “knowingly” and “intentionally” alleged at the beginning of the information apply both to “purchase an item of crafted precious metals” and to “fail to record.” Finding no fundamental error, we overrule appellant’s ground of error.

The judgment is affirmed.