text:
    Larence Earl PETERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 08-84-00115-CR.
    Court of Appeals of Texas, El Paso.
    Nov. 28, 1984.
    John W. Cliff, Jr., Law Offices of Smith & Cliff, P.C., Odessa, for appellant.
    James L. Rex, County Atty., Andrews, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

OSBORN, Justice.

This is an appeal from a conviction for burglary of a habitation. The jury assessed punishment at fifty years imprisonment. We affirm.

Appellant contends that the court erred in denying his request for a continuance and in forcing him to proceed to trial with counsel not of his own choosing. Appellant was indicted for burglary of a habitation and spent fourteen months in jail awaiting trial. He retained an attorney who represented him for over one year, including bond reduction proceedings, parole revocation resulting from this charge and discovery. At the end of March, 1983, a trial setting was issued for April 12. On Tuesday, April 5, counsel notified Appellant of a plea bargain offer by the State of fifteen years imprisonment. Dissatisfied with this offer, Appellant immediately rejected the plea bargain and discharged his attorney. Counsel notified the prosecuting attorney. On April 12, Appellant appeared in court without counsel. Previously retained counsel appeared at the request of the prosecuting attorney. Appellant expressed his desire to obtain other counsel and asked for a two-week postponement. The court refused. Counsel advised the court that based on his discharge on April 5, he had not prepared for trial and asked for two weeks to prepare. This was also denied, and Appellant proceeded to trial with the retained attorney he had previously discharged. The same attorney was then appointed to present this appeal, without apparent objection by the Appellant.

The State contends that the judgment should be upheld on the basis of Ex parte Windham, 684 S.W.2d 718 (Tex.Crim.App.1982). In that opinion, the Court of Criminal Appeals suggested nine primary factors to be considered in reviewing the propriety of a similar action in the trial court. In light of the nine factors, the Windham case presented a more compelling basis for reversal than this record.

In Windham, the Appellant sought only a two-day delay, as opposed to two weeks. Neither case involved any prior continuances granted at the behest of the defendant. In Windham, the trial counsel had less experience than the defendant's attorney of record and had not reviewed the facts of the case with the client. He had only been involved in filing a motion to quash, a motion in limine and the motion for continuance which was the subject of Court of Criminal Appeals review. In this case, trial counsel had been handling the case throughout the fourteen months prior to trial. He had represented the Appellant’s brother in a separate trial of the same offense and had represented Appellant in a parole revocation based upon the alleged burglary. Thus, counsel in this case was far better prepared to proceed to trial than his counterpart in Windham. For the above reasons, the fourth factor (availability of other competent counsel) weighs in favor of the State. The fifth factor (convenience or inconvenience to witnesses, opposing counsel and the court) is not clearly resolved by the record. We note, however, that during the week following discharge of retained counsel, Appellant took no steps to hire other counsel or advise the court of his situation. While most of the State’s witnesses were local residents, one was from another county. Furthermore, advance scheduling of crowded court dockets means that a two-week continuance frequently results in actual greater delay. The sixth factor involves an appraisal of whether the delay is for legitimate or contrived reasons. Appellant was dissatisfied with the plea bargain of fifteen years imprisonment and sought to discharge counsel as a result. While we do not suggest that this was a contrived reason for delay, we do find it significantly less than impressive in assessing the propriety of the court’s action. We further note at this point that Appellant was seeking to drop the attorney who had been representing him for over one year, while Windham was merely trying to go to trial with counsel who had been handling his case for a comparable period of time. In terms of complexity of the case, this trial presented one moderately complex legal issue (addressed below) within an otherwise simple factual or evidentiary problem. Appellant was arrested inside a Department of Public Safety Officer’s residence at night, having forced entry through a back door. No identifiable harm has resulted from the court’s action, placing the eighth factor in the State’s column.

The final factor expressed in Windham is the quality of legal representation actually provided. In light of the interests involved, we have carefully scrutinized the trial proceedings and the evidence. The State presented testimony of various witnesses including law enforcement personnel and one of the codefendants. Tom Finley, a former DPS narcotics investigator, stated that he was contacted by one of his established informants, Kenneth Albritton, who advised him that several individuals from Odessa were planning to visit Andrews to burglarize a home in search of gold. No target had been selected. Finley conceived of setting up a controlled situation in which a safe residence would be “provided” for the burglary, free of weapons and any danger to civilians. Law enforcement personnel in Andrews selected the home of DPS Officer Barnes, who consented to its use. All weapons and DPS uniforms were removed. Finley then relayed the address to his informant for “spoon-feeding” to the burglars. On the night of January 27, 1982, members of various law enforcement agencies surrounded the house. At 9:05 p.m., the three burglars arrived at the residence in a truck driven by Albritton. Albritton and John Peterson waited in the truck. Appellant and J.P. Lowry went to the rear of the house and forced entry through a back door. After a few minutes, the trap was sprung. Appellant and Lowry were arrested at the scene. Albritton and John Peterson drove away but were “apprehended” later. Lowry testified on behalf of the State. Appellant testified that he and Low-ry simply went to the house at Albritton’s suggestion expecting to participate in a crap or poker game. Although Appellant had three dice in his pocket, the explanation was at odds with the forced entry and sum total of less than two dollars between the two intruders. At punishment, the State introduced penitentiary packets demonstrating Appellant’s four prior felony convictions for delivery of heroin, with sentences ranging from eleven to fifteen years.

We find only two noticeable lapses on counsel’s part during trial. One was a failure to object to a sidebar remark of disbelief on the part of the prosecutor concluding the cross-examination of Appellant as to his gambling explanation for entry. Second was a failure to object to the suggestion of an extraneous offense by Deputy Sheriff Farmer. The officers had been informed that the subjects were armed. A pat-down revealed no weapons. A pistol was then located in the refrigerator. It was not present prior to the burglary. To this extent, the pistol evidence was admissible as part of the res gestae of the offense. Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972). Farmer went on to relate, however, that subsequent investigation disclosed that the gun had been taken in an earlier Odessa burglary, and that it was ultimately returned to its owner. This was not only improper hearsay, but also irrelevant to the offense being tried. Nonetheless, no further evidence was offered with regard to which burglar had introduced the weapon to Barnes’ house, Lowry or Appellant (despite the fact that both testified). In addition, the jury did learn that Lowry was awaiting trial in Odessa for burglary. No other connection between Appellant and the Odessa burglary/pistol theft was presented. We conclude that these isolated instances of failure to object, viewing the record as a whole, do not amount to ineffective assistance of counsel under the “reasonably effective” standard expressed in Simmons v. State, 629 S.W.2d 38 (Tex. Crim.App.1981) and Passmore v. State, 617 S.W.2d 682 (Tex.Crim.App.1981). Counsel otherwise properly objected to hearsay and effectively cross-examined the State’s witnesses. In fact, he effectively sought to impeach Lowry by demonstrating that he had a prior conviction for burglary and filed a false affidavit with his plea for probation under his indictment for the present offense, asserting no prior convictions. He also brought out the pending burglary charge against Lowry in Odessa. Finally, counsel did develop at trial a critical question of consent raised by the manner in which the burglary trap was set by the officers in this case. He did move for a directed verdict on the basis of consent by Barnes to the entry into his house. The issue is not reurged on appeal and we ultimately conclude that the evidence was sufficient to support a finding of no effective consent. The issue is far from frivolous, however, and thus is a further indication of counsel’s attentive skill in representing Appellant at trial.

In an age of “sting” and decoy operations by law enforcement agencies, the present technique is of interest in testing the extent of police involvement providing criminals the rope to hang themselves. The issue here was not entrapment; Even if it had been, Appellant’s denial of guilt would have precluded submission óf such an issue to the jury. The issue is whether the controlled scenario in effect resulted in consent to entry by Barnes, relayed through Finley and Albritton. Clearly, the criminal intent to burglarize some dwelling originated with Appellant, his brother and Lowry. Rather than providing a tempting decoy, however, here the police actually provided an address to the burglars. Of course, Tex.Penal Code Ann. secs. 1.07(a)(12)(D) and 30.02(a)(l)(Vernon 1974) exclude consent to entry from being “effective” if solely given to detect the commission of an offense. For a similar example of police conduct, this Court had to reach back to Jarrott v. State, 1 S.W.2d 619 (Tex.Crim.App.1927). There, an informant came to the police with information concerning a proposal he had received from a car thief operating in the area. The thief was planning to look for a 1925 Ford coupe. Officer Griffin provided his own comparable vehicle, leaving the parking lights on, the key in the ignition, and concealing himself in the rear. The vehicle was left in the area the thief was apparently planning to scour. The informant was advised of these arrangements and accompanied the thief to the scene. The Texas Commission of Appeals upheld the conviction (opinion approved by the Court of Criminal appeals), although Judge Hawkins reflected that “[t]he facts of this case are so unique, an exact precedent is not likely to be discovered.”

Apart from police conduct, the consent issue we have examined is not without more recent precedent. In Brown v. State, 576 S.W.2d 820 (Tex.Crim.App.1978), the defendant was convicted of aggravated rape. The evidence reflected that he abducted two women, intending to rape the younger one. The older woman “volunteered” to replace the younger victim. On appeal, the issue was one of consent by the older female. The Court of Criminal Appeals held that:

The fact that the victim “volunteered” could be interpreted by the trial court not as consent to have sexual intercourse, but as an effort to prevent the rape of her companion.

Id, at 823. By analogy, Appellant and his companions had already determined to burglarize some home in Andrews. By providing a safer target than some other citizen’s house, the police did not instigate the offense or effectively consent to the offense. Consequently, while the trial development of this issue is a mark in counsel’s favor, his failure to reurge it on appeal does not amount to ineffective assistance, since ultimately the legal effect of the police technique was not one of effective consent and non-guilt.

On the basis of the procedural history of this case and the factors expressed in Windham, Ground of Error No. One is overruled.

The judgment is affirmed.


source: Caselaw Access Project

author: BRADY, Justice.

license: Public Domain

text:
    Bob BULLOCK, Comptroller of Public Accounts of Texas, et al., Appellants, v. MEL POWERS INVESTMENT BUILDER, Appellee.
    No. 13975.
    Court of Appeals of Texas, Austin.
    Nov. 28, 1984.

      Jim Mattox, Atty. Gen., Bradley Seals, Asst. Atty. Gen., Austin, for appellants.
    Constance K. Acosta, Williams, Birnberg & Andersen, Houston, for appellee.
    Before PHILLIPS, C.J., and POWERS and BRADY, JJ.
   BRADY, Justice.

This is an appeal by the State Comptroller, Bob Bullock, from a summary judgment of the trial court in favor of appellee, Mel Powers, for refund of sales tax on the purchase of a Jet Commander aircraft. The aircraft was acquired by appellee for the purpose of commencing a charter service to carry persons or property. As a result of an audit by the Comptroller, a tax was assessed against the appellee in the sum of $26,557.53 on the Jet Commander aircraft. On July 11, 1979, appellee paid this tax under protest and filed a protest letter with the Comptroller which was treated by the Comptroller as an administrative refund proceeding. On January 11, 1980, this suit for refund was filed. Both parties filed motions for summary judgment. The trial court granted the taxpayer’s motion and rendered judgment for the tax refund.

Appellant Bob Bullock, State Comptroller, argues four points of error: (1) that the trial court erred in finding it had jurisdiction when appellee failed to comply with the statutory requirement of bringing suit within 30 days from the denial of the motion for rehearing; (2) that the trial court erred in denying his motion for summary judgment because the aircraft was never certified or licensed and thus did not comply with the statutory exemption; (3) that the trial court erred in granting the refund because the aircraft was never certified or licensed; and (4) the trial court erred in granting appellee’s motion for summary judgment because the aircraft was never used as a licensed certified carrier as provided by law. We sustain the appellants’ first point of error, reverse the judgment of the trial court, and order the trial court to dismiss this suit for lack of jurisdiction.

The State may not be sued without its consent. Bullock v. Electro-Science Investors, Inc., 533 S.W.2d 892 (Tex.Civ.App.1976, no writ). The Legislature promulgated Tex.Tax.-Gen.Ann. art. 1.11(A) (Supp. 1982), now codified as Tex.Tax Code Ann. Sec. 112.151-112.154 (Vernon 1982), authorizing the Comptroller to refund payment of certain taxes found to have been paid through mistake of fact or mistake of law.

By enacting Art. 1.11(A), the Legislature intended to create a right and a remedy heretofore not recognized at common law. See Motorola, Inc. v. Bullock, 586 S.W.2d 706 (Tex.Civ.App.1979, no writ). The general rule is that where the cause of action and remedy for its enforcement are derived not from the common law but from the statute, the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not maintainable. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084 (1926).

In resolving this case we must construe the statute as it existed when plaintiff filed suit, January 11, 1980. The text of Art. 1.11(A)(6), as amended by the 1979 Act, contained the following language:

(6) A claimant who is dissatisfied in whole or part with the comptroller's decision upon a claim for refund may file a motion for rehearing before the decision becomes final. The motion for rehearing, which is a prerequisite to filing an action in the courts of this state, must set forth in writing each specific ground upon which the claimant believes the decision of the comptroller is erroneous. If the comptroller denies the motion for rehearing, the claimant may bring an action against the comptroller on the grounds set forth in the claim by filing a petition in a district court of Travis County, Texas, within 30 days of the issue date of the denial of the motion for rehearing. Only the issues set forth in the motion for rehearing may be raised in the court action. The attorney general shall represent the comptroller in the suit. Failure to bring an action within the time specified constitutes a waiver of any demand against the state for the alleged overpayment.

Appellee argues that the 30 day limitation is not jurisdictional. Appellee contends further that the motion for rehearing, and the denial thereof by the Comptroller, is not a condition precedent to filing suit. We do not agree.

The record reveals that appellee’s motion for rehearing was not overruled until September 15, 1981. However, appellee filed suit in district court on January 11, 1980. Not until January 25, 1982, did appellee amend his petition to allege jurisdiction under the refund statute.

Before a taxpayer could file suit in district court under Art. 1.11(A), three things were required: (1) a tax refund claim must be filed, (2) the motion for rehearing must have been overruled by the Comptroller, and (3) any additional tax must be paid. The statute clearly states that a taxpayer may bring suit against the Comptroller if he has complied with the above requirements. Additionally, the grounds contained in the motion for rehearing are the only issues that may be raised in a suit under the refund statute.

Appellee cannot maintain suit under the protest statute, Tex.Tax.-Gen.Ann. art. 105 (Supp.1982), because he clearly did not file suit within 90 days of submitting his protest payment. Motorola, Inc. v. Bullock, supra. Appellee cannot maintain suit under the refund statute, Art. 1.11(A), because suit was not filed after the motion for rehearing was overruled and within 30 days thereafter. The refund statute was drafted with the legislative intent that a taxpayer should go through administrative channels before filing suit in district court. If suit could be properly filed before the statutory conditions were complied with, the utility of the administrative proceedings would be reduced to a nullity.

It is clear that appellee’s original petition failed to allege a cause of action under either Art. 1.11(A) or Art. 1.05. The trial court, therefore, acquired no jurisdiction to entertain suit. Plaintiffs petition "... must state facts which affirmatively show the jurisdiction of the court in which the action is brought.” Brown v. Peters, 127 Tex. 300, 94 S.W.2d 129, 130 (1936); Richardson v. First National Life Insurance Co., 419 S.W.2d 836, 839 (Tex.1967). “... [I]f the original petition does not affirmatively allege jurisdictional facts concerning the subject matter of the suit ... the only jurisdiction which the court has is to dismiss the suit for want of jurisdiction.” Byke v. City of Corpus Christi, 569 S.W.2d 927, 930 (Tex.Civ.App.1978, writ ref d n.r.e.).

The taxpayer, however, insists he had the right to amend his petition to confer jurisdiction upon the trial court. Where the original petition states no cause of action, the trial court’s only alternative is to dismiss for want of jurisdiction. United Production Corp. v. Hughes, 137 Tex. 21, 152 S.W.2d 327 (1941); Bullock v. Adickes, 593 S.W.2d 805 (Tex.Civ.App.1980, writ ref’d n.r.e.). In the instant case, the trial court was without power to hear any proceedings in relation to the case. Bullock v. Adickes, supra. The court lacked authority to hear the case and therefore no cause of action existed which would afford the taxpayer the right to amend his original petition. Id. at 809.

Amendments to pleadings are permissible only if jurisdiction has attached. Indemnity Insurance Company of North America v. Carrell, 318 S.W.2d 744 (Tex.Civ.App.1958, writ ref’d n.r.e.). The rule that one cause of action can be substituted for another is based on the assumption that the jurisdiction was initially established. United Production Corp., supra, 152 S.W.2d, at 330. Any action by the trial court permitting amendments by appellees was a nullity. Likewise, this Court has acquired no jurisdiction by appeal. Abel v. Bloomfield, 6 Tex. 263 (1851); Timmins v. Bonner & Long, 58 Tex. 554 (1883); Pettaway v. Pettaway, 177 S.W.2d 285 (Tex.Civ. App.1943, no writ). We are compelled to reverse the judgment of the trial court and order the cause dismissed. Pecos & NT. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S.W. 294, 295 (Tex.1909); Perkins v. United States Fidelity & Guaranty Co., 299 S.W. 213, 219 (Tex.Comm’n App.1927, jdgmt. adopted); Prince v. Garrison, 248 S.W.2d 241, 244 (Tex.Civ.App.1952, no writ).

POWERS, J., not participating.


author: EARL W. SMITH, Justice.

text:
    U.S. RESOURCES, INC., et al., Relators, v. Honorable John L. PLACKE, Respondent.
    No. 14333.
    Court of Appeals of Texas, Austin.
    Nov. 28, 1984.

      Charles G. Bell, Newton, Bell & Jones, Dallas, Allan I. Schneider, Schneider, Kru-gler & Kleinschmidt, Giddings, for relators.
    Robert Q. Keith, Mehaffy, Weber, Keith & Gonsoulin, Johnson City, Carey B. Boe-thel, Simmang, Boethel & Hall, Giddings, for respondent.
    Before SHANNON, EARL W. SMITH and BRADY, JJ.
   EARL W. SMITH, Justice.

Charles R. Barnhill instituted suit against U.S. Resources, Inc., et al., in the 21st Judicial District Court of Lee County on February 16, 1984. Among other things, Barnhill alleged that by reason of a 1978 agreement, he is entitled to an interest in certain oil and/or gas properties located in Lee County, in which one or more of the relators have or have had a working interest. In their first responsive pleading, the relators filed a motion to transfer venue. On May 17, 1984, Barnhill had not responded to the motion, and Judge John L. Placke signed an order sustaining relators’ motion to transfer venue. On May 22, 1984, Barnhill filed a “motion to reconsider order sustaining motion to transfer venue.” A hearing was held on Barnhill’s motion on May 24, 1984, and the motion was granted by written order entered June 11, 1984. Relators then filed in this Court a motion for leave to file a petition for writ of mandamus. We will deny relators’ motion.

Relators argue that Tex.Civ.Stat.Ann. art. 199-21, § 5 (Supp.1984), rendered void Judge Placke’s ruling on Barnhill’s motion to reconsider the order transferring venue. Article 199-21, § 5 reads:

Sec. 5. Judgments of all such District Courts [in the 21st Judicial District] shall become final on and after the expiration of ten (10) days after the date of judgment, or on and after the day the motion or amended motion for new trial, if any be filed, is overruled, as if the term of court had expired, when execution and all such other writs to enforce such judgment may issue. On and after the day such judgment becomes final, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law for the filing of bills of review in other District Courts, (emphasis added).

It is to be noted that the statute says nothing about the time in which the court must act upon the motion for new trial. Relators assert, nevertheless, that because Barnhill’s motion to reconsider the order to transfer venue was not filed and acted upon within ten (10) days after the order sustaining relators’ motion to transfer venue, the court’s ruling on Barnhill’s motion was void.

However, Barnhill’s motion was filed within ten (10) days after the order to transfer venue, and Judge Placke acted upon Barnhill’s motion within thirty (30) days after Judge Placke had signed rela-tors’ order transferring venue. When art. 199-21, § 5 is read in conjunction with Tex. R.Civ.P.Ann. 329b (Supp.1984), the motion of Barnhill and the judgment of the court thereon both fall within allowable time periods. Relators argue that the two rules cannot be harmonized, and that art. 199-21, § 5 controls exclusively the times for filing and acting upon a motion for new trial in Lee County; i.e., if a motion is filed within the ten (10) day period, it must be acted upon within the same period. Such a construction is not warranted. When two rules of law can be harmonized, courts should do so. State v. Jackson, 370 S.W.2d 797 (Tex.Civ.App.1963), aff’d, 376 S.W.2d 341 (Tex.1964). A reasonable interpretation of these two rules suggests that art. 199-21, § 5 applies to when a motion for new trial or similar motion must be filed, and Rule 329b applies to how long the trial court retains jurisdiction to act upon such motions. In other words, art. 199-21, § 5 requires that a motion must be filed within ten (10) days after the judgment or the judgment becomes final. If a motion for new trial or similar motion is filed, Rule 329b gives the trial court thirty (30) days after the judgment to act upon timely filed motions for new trial or similar motions. Then, under art. 199-21, § 5, the judgment becomes final ten (10) days “on and after the day the motion ... is overruled.” The fact that the Legislature adopted art. 199-21, § 5 in 1943 when art. 2092-28, Tex.Rev. Civ.Stat.Ann. (1964), the predecessor of Rule 329b (with the same time limits for disposition of a motion for new trial as originally in Rule 329b), was in effect, clearly demonstrates the intent of the Legislature that the two rules be read together and harmonized. Therefore, we hold that Barnhill’s motion was timely filed under art. 199-21, § 5, and that Judge Placke had power to rule on the motion when he did so under Rule 329b.

In relators’ reply brief, they assert two additional reasons for why Judge Placke’s ruling to reconsider his order to transfer venue was void. First, relators assert that Rule 87(5), Tex.R.Civ.P.Ann. (Supp.1984), provides that there shall be “no rehearing” of orders to transfer venue. Secondly, relators argue that the language of the order to transfer venue effected an immediate transfer of the case. However, Rule 87(5) reads:

If venue has been sustained as against a motion to transfer, or if an action has been transferred to a proper county in response to a motion to transfer, then no further motions to transfer shall be con-sidered_ (emphasis added).

Here, there had been filed a motion to transfer venue, which Judge Placke had sustained, but the case had not actually been transferred when Judge Placke timely decided to reconsider the motion to transfer. Although relators assert that the court’s order to transfer venue effectuated an immediate transfer of the case, they cite no cases supporting this proposition. Therefore, we find that neither Rule 87(5) nor the order to transfer venue prohibited Judge Placke from deciding to reconsider and rescind the motion to transfer venue.

Relators’ motion for leave to file a petition for writ of mandamus is, therefore, denied.


author: RALEIGH BROWN, Justice.

text:
    Patrick V. BUSCHER, Appellant, v. BULLDOG STEEL PRODUCTS and Bobby G. Bryant, Appellees.
    No. 11-84-193-CV.
    Court of Appeals of Texas, Eastland.
    Nov. 29, 1984.
    Rehearing Denied Dec. 20, 1984.
    Sam J. Chase and Dick R. Crownover, Law Offices of Sam J. Chase, Abilene, for appellant.
    Ernest Reynolds III, McMahon, Smart, Surovik, Suttle, Buhrmann & Cobb, David G. Stubbeman and Thomas M. Wheeler, Wagstaff, Harrell, Alvis, Stubbeman, Seamster & Longacre, Abilene, for appel-lees.
   RALEIGH BROWN, Justice.

This is a third party action. Buscher appeals the denial of an award of attorney’s fees. We reverse and remand.

Buscher was injured while in the course of his employment and settled his worker’s compensation claim with his employer’s insurance carrier, Texas General Indemnity (TGI). Settlement was had for $49,000, with $35,000 being paid to Buscher in a lump sum. Buscher's attorney, Sam Chase, received as his statutory fee, twenty-five percent of the lump sum payment. Buscher, represented by Chase, and TGI, represented by separate counsel, joined as plaintiffs against Bulldog Steel and Bobby Bryant seeking recovery for Buscher’s common-law damages and for a subrogation recovery of the money paid out by TGI to Buscher under the compensation claim. The case was settled for $100,000. TGI recouped its $49,000, and Buscher was awarded $51,000. Chase received a one-third contingency fee from the $51,000. Chase then moved the court to award him a percentage of the $49,000. The court denied the motion. Judgment was entered accordingly. Chase appeals that ruling.

TEX.REV.CIV.STAT.ANN. art. 8307, sec. 6a (Vernon Supp.1984) specifies the award of attorney’s fees in the event of a subrogation recovery from third persons for injuries for which compensation was paid. The statute differentiates between the situation when the association’s interest is not actively represented by its own attorney and when the association obtains an attorney to actively represent its interest and to actively participate in obtaining a recovery. It is this later situation which applies in the instant case. The statute provides:

* * * * * *

(W)hen the claimant is represented by an attorney, and the association’s interest is not actively represented by an attorney, the association shall pay such fee to the claimant’s attorney not to exceed one-third (V3) of said subrogation recovery or as may have been agreed upon between the claimant’s attorney and the association or in the absence of such agreement the court shall allow a reasonable attorney’s fee to the claimant’s attorney for recovery of the association’s interest which in no case shall exceed thirty-three and one-third per cent (33½%) payable out of the association’s part of the recovery.
⅜ ⅜ # * ⅝: *
If the association [TGI] obtains an attorney to actively represent its interest and if the attorney actively participates in obtaining a recovery, the court shall award and apportion an attorney’s fee allowable out of the association’s subro-gation recovery between such attorneys taking into account the benefit accruing to the association as a result of each attorney’s service_ (Emphasis ours)

Chase’s sole point of error asserts that the trial court abused its discretion in refusing to award him a portion of the subro-gation recovery pursuant to this statute. Chase argues that the trial court erred in finding that his services as an attorney did not benefit the association.

The record establishes that a $100,000 settlement offer was actually made prior to the filing of this lawsuit. While this is the offer which was eventually accepted, and upon which TGI obtained its benefits, TGI was not able to complete the settlement until Attorney Chase had sufficiently developed the facts to satisfy himself and his client that the settlement was in the client’s best interest. That work was of benefit to TGI because it made the settlement possible and permitted its subrogation recovery. The evidence shows that the attorney for TGI actively participated in the development of the case. There is no dispute that said attorney was solely responsible for protecting the subrogated interest of TGI. He prepared the original draft of the petition, prepared and filed requests for admissions, participated in the taking of depositions, obtained information in answering interrogatories and had numerous conferences with Buscher and Chase.

However, the record also establishes that Chase spent in excess of 90 hours in investigating the law and the facts relating to the prosecution of the third party tort action. He took depositions, questioned witnesses, examined pleadings and negotiated a settlement. Under the evidence, the trial court recognized that Chase “was the head counsel in the third party negotiation” and “worked very diligently on this case.” Three attorneys, experienced in the handling of this type lawsuit, testified that Chase’s efforts were of benefit to TGI. We hold that the evidence conclusively established that Chase’s service did benefit TGI to some extent and that the finding of no benefit was error. Therefore, since the statute provides that the court shall award and apportion attorney’s fees, taking into account the benefit accruing to the association, the trial court abused its discretion in not awarding some portion of the statutory attorney’s fees to Chase. Espinoza v. Victoria Bank & Trust Co., 572 S.W.2d 816 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.).

The judgment is reversed, and the cause is remanded for an appropriate apportionment of attorney’s fees.


author: DOYLE, Justice. LEVY, Justice,

text:
    Antonio Alvarez VASQUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-82-0127-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.

      Paul Cedillo, Jr., New Braunfels, for appellant.
    William A. Meitzen, Fort Bend County Dist. Atty., John F. Healey, Fort Bend County Asst. Dist. Atty., Richmond, for appellee.
    Before EVANS, C.J., and DOYLE and LEVY, JJ.
   OPINION

DOYLE, Justice.

The appellant was assessed a 70-year sentence by a jury after it convicted him of murdering his 88 year old father.

There were no eyewitnesses to the crime. Teodulo Vasquez, the deceased, was found severely wounded at approximately 1 p.m. on February 24, 1979 beside a woodpile at his farm near Richmond in Fort Bend County. He died later that afternoon.

In the first of three grounds of error, appellant challenges the sufficiency of the evidence to prove beyond a reasonable doubt that he killed his father.

Because there is no variance between the state’s and appellant’s version of the evidence adduced at the trial, we shall use principally the state’s account of the witnesses’ testimony.

Filimon Vasquez, brother of Antonio Vasquez and the son of Teodulo Vasquez, testified that he lived with his father, the appellant and his sister, Petra, on their father’s farm near Schultz’s store. Filimon further stated that on the morning of February 24, 1979, Antonio was too drunk to talk to, and that when he left the farm at 9 a.m., Petra, his father, and Antonio remained at the farm. When he returned at approximately 1 p.m., he found his father lying beside a woodpile at their farm with blood around him. It was indicated by the testimony of Filimon that Teodulo was in the habit of carrying money on him and that he had just gotten some money and was carrying it on the morning of February 24, 1979. It was also deduced from Filimon that Antonio on more than one occasion argued with Teodulo over Teodu-lo’s will.

Larry Vasquez, the grandson of Teodulo Vasquez, stated that he arrived at Teodu-lo’s farm at 10 a.m. on February 24, 1979. While there, he observed Antonio cursing at his sister, Petra, and at Larry’s daughter, and arguing with Teodulo, who was chopping wood by a woodpile. Antonio appeared to be drunk. Larry further testified that Antonio never worked, and that he never knew him to have any money. Larry testified that he left the farm at approximately 11 a.m. and that he remained at the farm for about an hour and that during that time, no one other than himself, Petra, Teodulo, and Antonio, were at the farm. He also testified that Antonio hollered at his retarded sister, Petra, asking, “Where is my God damn radio?”

The testimony of Patrick Vasquez, the son of Teodulo, indicated that Teodulo owned approximately 112 acres of farmland, and that on Saturday, February 24, 1979, he was going to see his father at the farm, because his father was going to loan him approximately $500 to make delinquent truck payments. At 12 noon, Patrick received a phone call indicating that something had happened at his father’s house.

Joe Vasquez, another son of Teodulo Vasquez, testified that Antonio had no job in February 1979. He also testified that Teodulo, by his will, had planned to leave all of his land to his children equally, but that in early February he told Joe that he was going to redraft his will and leave Antonio out of it. As of the 24th of February, 1979, Teodulo had not effected this change.

Gregorio Ramirez, a casual acquaintance of the appellant, testified that on the day in question he had given appellant a ride sometime after 12 noon. Ramirez smelled blood when the defendant entered his car. When the appellant exited the car, he pulled a roll of bills from his pocket and peeled off a $20 bill, even though he had promised Ramirez only $10 at the time he was picked up.

Olivia Ramirez, wife of Gregorio, also testified that when she and her husband picked up Antonio Vasquez, the smell of blood was evident. She said they had picked him up outside the Swinging Door, a restaurant in Richmond, which was only a mile away from Schultz’s Store. Further, she said that the appellant said that he was “running away.”

Fort Bend County Deputy Gary Stone testified that on February 24, 1979, he was summoned to 3805 Holmes Road in Richmond. At this address, he found Teodulo Vasquez lying on the ground, bleeding from a wound to the head. An ambulance was summoned, and Teodulo Vasquez was taken to a hospital, where he expired.

Officer Billy Frank Teague said that he arrested Antonio Vasquez at a bar in Richmond at 8:50 p.m. on February 24, 1979 because he was intoxicated. Teague further testified that at the jail $440.40 was taken from the appellant.

Officer Michael Randolph, a jailer employed by Fort Bend County, testified that he observed what appeared to be blood stains on a boot and shirt of the appellant, and that he gave these articles to Officer Larry Spillers. Spillers stated that he took these items from Officer Randolph and brought them to DPS Officer Bobby Urba-nowski for analysis. Spillers also testified that he dusted an ax and sledge hammer found at the murder scene, but could not lift any fingerprints from it.

Texas Department of Public Safety Officer Bobby Urbanowski, qualified as a Department of Public Safety chemist, stated that he had examined several articles of what proved to be the appellant’s clothing. These items were given to him by Fort Bend County Deputy Larry Spiller. Urba-nowski testified that he determined that human blood, of blood type “A” was found on the back right shoulder area of a shirt, and also upon the left boot. Randolph testified that he had conducted an extensive search on the whole body of the appellant on February 24, 1979, and found no evidence of scratches, bruises or blood.

The testimony of Dr. Joseph Jachimczyk indicated that an autopsy was conducted on the body of Teodulo Vasquez by Dr. Robert Bucklin on February 25, 1979. The blood type taken from Teodulo Vasquez was determined to be blood type “A”. Dr. Ja-chimczyk gave his opinion that Teodulo Vasquez died as a result of a fractured skull, caused by blunt force trauma to the head.

Dana Boettcher, a member of the Fort Bend County Grand Jury which indicted the appellant, stated that the Grand Jury did not know what had caused the blow to the head of Teodulo Vasquez.

From the foregoing evidence, we observe that appellant was in a foul, belligerent, drunken, cursing mood on the morning of the murder. He argued with the deceased that same morning and he was last seen with his father and sister around 11 a.m. shortly before the time his father was discovered mortally wounded. Soon thereafter, he was picked up near his father’s farm by the Ramirez; and flashing a roll of money, he stated he was running away. At that time, the smell of blood was noticeable on him. The appellant’s possession of the roll of money, which later proved to be over $400, was never explained. Appellant was then unemployed, and the deceased had a large amount of money on him the date he was murdered. Traces of blood type “A”, which was that of the decedent, were found on the boot and shirt of appellant. No wounds, cuts or bruises were found on the appellant’s body, tending to negate the possibility that blood on the appellant’s shirt and boot was his own. The evidence, though circumstantial, leads to the rational conclusion that appellant murdered his father.

In a circumstantial evidence case, we must exclude every other reasonable hypothesis except the guilt of the accused. Moore v. State, 640 S.W.2d 300 (Tex.Crim.App.1982); Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983). Further, we must view the evidence in the light most favorable to the verdict. Houston v. State, 667 S.W.2d 157 (Tex.App.—Houston [14th Dist.] 1984, pet. den’d). Each circumstantial evidence case must be tested by its own facts. Stogsdill v. State, 552 S.W.2d 481 (Tex.Crim.App.1977).

Appellant urges that the evidence before us raises the probability that someone other than appellant may have been the murderer. We disagree. The incriminating evidence against appellant, when viewed in the light most favorable to the verdict, was sufficient to support the jury verdict that the appellant murdered his father. Brasfield v. State, 600 S.W.2d 288 (Tex.Crim.App.1980). We overrule appellant’s ground of error one.

Appellant argues in his second ground of error that the trial court erred in admitting certain testimony indicating that the deceased intended to exclude appellant from his will. It is appellant’s position that this information was hearsay, and because there was no showing that the appellant knew his father was going to take him out of the will, it was reversible error to allow the jury to hear such testimony. However, the cases cited by appellant on this ground are not in point, as they involve situations where the issue of self defense was raised.

The state argues that the will testimony was relevant to show motive, and while there is no direct evidence to show appellant knew of his father’s intentions, there is sufficient circumstantial evidence to infer it. Edmondson v. State, 109 Tex.Cr.R. 518, 6 S.W.2d 119 (1928).

The only evidence presented by the state, regarding the deceased and his will, was the testimony of the appellant’s brothers Filimon and Joe Vasquez. Joe Vasquez testified that his father told him he was going to take Antonio out of the will and that they had discussed it four or five times. However, Joe admitted that his father never actually changed the will before his death. Joe stated that he did not know from his own personal knowledge whether Antonio knew he was going to be removed from the will.

Filimon Vasquez, another brother of appellant, testified that he had seen the appellant and the deceased arguing within two weeks of the incident, but that he did not really know what they were arguing about. Filimon further testified that he had heard appellant and the deceased talk and argue about the will, but that he did not know the details of their arguments.

The ease of Bailey v. State, 532 S.W.2d 316 (Tex.Crim.App.1975) is directly in point. In Bailey, the court held that the evidence revealing that the deceased planned to alter her will was relevant and admissible, even without a showing that the appellant knew of the deceased’s plans. The court further cited Knapp v. State, 504 S.W.2d 421 (Tex.Crim.App.1974) for the general rule that in a circumstantial evidence case, the rules of evidence will not be so stringently applied as to exclude evidence which sheds light on the occurrence. The Bailey court also held that any error committed in admitting the testimony was harmless in light of the overwhelming evidence of appellant’s guilt.

After reviewing all of the testimony which was given at trial, the only reasonable conclusion which the jury could have reached is that the appellant, and no other, killed the deceased. Thus, the circumstantial evidence overwhelmingly points to the probability that appellant knew that he might be taken out of the deceased’s will. It was not improper for the trial court to admit the testimony concerning the intention of the deceased to remove appellant from his will and to let the jury decide the weight to be given to such testimony. Appellant’s second ground of error is overruled.

In his third ground of error, appellant complains that the trial court erred in allowing the introduction of evidence secured as the result of an illegal arrest. Appellant contends that the arrest was without probable cause being established for a warrantless arrest and hence any evidence seized should have been suppressed upon his duly urged motion. We find that the arrest was based on sufficient probable cause.

The appellant bases his contention on the fact that at the time of his arrest the officers claimed that there existed two outstanding warrants on appellant which were never produced in court. However, Officer Sanders, when questioned by Mr. Rosen, testified that appellant was also arrested for public intoxication.

Q. Why did you arrest him for public intoxication?
A. Because he was, in my opinion as a police officer based on experience I have had, he was highly intoxicated.
Q. How long did you have a chance to observe him for?
A. I would say about five minutes before taken (sic) him into custody.
Q. Did you arrest him for public intoxication?
A. Yes, sir.

While it is undisputed that the two outstanding warrants were never produced in court, we need not concern ourselves with this failure, since we may rely wholly on the charge of public intoxication to sustain the validity of the arrest. When asked what he observed about the appellant when he encountered him at the place of arrest, Officer Teague testified that “he was in disarray, smelled strongly of alcohol, swaying, in my opinion, he was intoxicated.” Officer Randolph, the jailer at the Fort Bend County jail, also testified that when he checked appellant into the jail on February 24, 1979, appellant was intoxicated; and that he exhibited “slurred speech, bloodshot eyes, the smell of alcoholic beverages on his breath, unsteadiness.” Thus it is clear that in the police officers' opinion, appellant was highly intoxicated. Section 42.08 of the Penal Code states that a person commits the offense of public intoxication if he appears in a public place under the influence of alcohol or any other substance, to the degree that he may endanger himself or another. Whether prosecution for the offense of public intoxication would fail or succeed need not be considered by this court in its determination of whether the search and seizure was lawful.

The facts in Soileau v. State, 156 Tex.Cr.R. 544, 244 S.W.2d 224 (1951) are similar to those in the case here considered. Houston police on patrol at 3:30 a.m. saw the defendant Soileau drive through a red light. They pursued and arrested him for the traffic violation and while searching his person found a pistol. He was tried and convicted for unlawfully carrying a pistol. In affirming the conviction, Judge Davidson stated:

We are not here dealing with the question of whether appellant was in fact guilty of such violation; all the requirement necessary for the officers to make the arrest was the existence of probable cause authorizing the belief that the traffic offense had been committed. According to the undisputed testimony, the patrolmen were authorized to so conclude and therefore to make the arrest.

In Britton v. State, 578 S.W.2d 685, 689 (1978), the Court of Criminal Appeals sets forth the standard and test for a warrant-less arrest under section 42.08 of the Penal Code.

It must be borne in mind that we are here faced with the question of proof necessary to establish probable cause for arrest rather than proof essential to a judicial determination of guilt. The test of probable cause for an arrest without a warrant as stated by the United States Supreme Court in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 [1964] and McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 [1967], is:
“Whether at that moment the facts and circumstances within the officer’s knowledge and of which [he] had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.”
Thus, when an officer is confronted with a person intoxicated in a public place, his determination as to possible danger that may befall the individual is not reviewed under the same standard used in a judicial determination of guilt.

When the officers arrived at Rose’s Bar in response to a tip that the appellant would be there, they found him in a state of heavy intoxication. Under such circumstances, the officers were warranted in concluding that the appellant committed the offense of public intoxication. Therefore, the arrest was valid, and so was the search. The motion to suppress was properly denied. Johnson v. State, 633 S.W.2d 687 (Tex.App.—Amarillo 1982, pet. ref’d). Appellant’s third ground of error is overruled.

The judgment of the trial court is affirmed.

LEVY, J., dissenting.

LEVY, Justice,

dissenting.

Appellant’s first ground of error, evidential insufficiency, is difficult enough to resolve because of both the circumstantial nature of the evidence and its marginal weight and implications.

It is even more difficult for me to accept the majority’s disposition of the second and third grounds of error. The nearest the evidence approaches to showing, albeit circumstantially, that the appellant knew that his deceased father was planning to remove him from the will was the testimony of appellant’s two brothers: Joe admitted that he did not know whether appellant was so informed, and further stated that he had never seen his father arguing with the appellant; and Filimon stated vaguely that appellant and his father were arguing about the deceased’s will approximately two weeks before the homicide. It is not disputed by the State that the deceased did not in fact change his will to disinherit the appellant.

Logic, authority, and experience combine to guide me into believing that the circumstances relied on by the State to show that a defendant had a motive to kill the deceased are admissible only where it is first shown that the circumstances were probably known to the defendant. See Bailey v. State, 532 S.W.2d 316, 325 (Tex.Crim.App.1975) (dissenting opinion on motion for rehearing); McCormick and Ray, Texas Law of Evidence Civil and Criminal, sec. 1534 (Texas Practice 2d ed. 1956); and Wigmore, Evidence, sec. 389 at 329 (3d ed. 1940). See also the following cases which were reversed when circumstances were admitted to show a motive for murder but it was not shown that the defendant had knowledge of the circumstances: See e.g., Phillips v. State, 22 Tex.App. 139, 2 S.W. 601 (1886); De Leon v. State, 68 Tex.Cr.R. 625, 155 S.W. 247 (1913); Young v. State, 59 Tex.Cr.R. 137, 127 S.W. 1058 (1910); Black v. State, 82 Tex.Cr.R. 358, 198 S.W. 959 (1910); (1917); Kirklin v. State, 73 Tex.Cr.R. 251, 164 S.W. 1016 (1914); Terry v. State, 45 Tex.Cr.R. 264, 76 S.W. 928 (1903); Berwick v. State, 116 Tex.Cr.R. 508, 31 S.W.2d 655 (1930); Edmondson v. State, 109 Tex.Cr.R. 518, 6 S.W.2d 119 (1928).

It seems to me that the circumstantial evidence was not sufficient to show that appellant knew that he might be disinherited, and such testimony in question was therefore essentially irrelevant, prejudicial, and possibly hearsay. Nor does such testimony become admissible under Section 19.-06 of the Texas Penal Code, which permits evidence showing the previous relationship existing between the accused and the deceased, as well as all relevant circumstances going to show the state of mind of the accused at the time of the homicide. Section 19.06 does not change, limit, or extend the general rules of evidence relating to hearsay. Erwin v. State, 531 S.W.2d 337 (Tex.Crim.App.1976); Love v. State, 581 S.W.2d 679 (Tex.Crim.App.1979); Nixon v. State, 587 S.W.2d 709 (Tex.Crim.App.1979).

Because I cannot say that the error in admitting such testimony was rendered harmless in light of the overwhelming evidence of appellant’s guilt, as in Bailey v. State, supra — because the evidence herein, while sufficient to support the jury’s verdict, was not overwhelming — I would sustain appellant’s second ground of error.

In his third ground of error, appellant argues that the trial court erred in overruling his motion to suppress, thereby allowing into evidence appellant’s clothes, boots, and the money found on his person. The State urges that appellant’s arrest was lawfully based upon his being publicly intoxicated, and that the search of his person was incidental to such arrest and accordingly permissible. Pulido v. State, 503 S.W.2d 578 (Tex.Crim.App.1974). Seizable items, such as instruments or evidence of the crime or contraband which come into the possession of an officer lawfully searching in connection with another crime or for another purpose, may be retained and used in the prosecution to which they relate. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Pulido v. State, supra.

Appellant argues that the arresting officer did not have any warrant for his arrest, but claimed only that he had information that there were outstanding warrants for appellant’s arrest. Tex.Code Crim.P.Ann. art. 15.26.. In Gant v. State, 649 S.W.2d 30 (Tex.Crim.App.1983), it was held that when an accused objects to admission of evidence on the ground it is tainted by a warrantless arrest, and the State relies on an arrest warrant, in the absence of waiver, error results unless the arrest warrant is exhibited to the trial judge for a ruling. Id., at 33. The court, applying the basic holding of Cannady v. State, 582 S.W.2d 467 (Tex.Crim.App.1979), requiring production at trial of search warrants, found no basis in reason to distinguish the principle when applying it to arrest warrants.

The arrest warrants were never produced at trial by the State in the instant case— nor was their production waived. The State argues, however, that sec. 14.01(b) of the Code of Criminal Procedure allows a peace officer to arrest a party without a warrant for an offense committed in his presence or within the view of the officer, and the fact that the officers observed appellant highly intoxicated in a public place gave the officers probable cause to arrest appellant for public intoxication. That offense, however, consists of more than mere intoxication in a public place. It requires extreme intoxication and public presence under circumstances that indicate a danger to self or a threat to the security of others. See Dickey v. State, 552 S.W.2d 467 (Tex.Crim.App.1977); Tex.Penal Code Ann. art. 42.08 (Vernon 1974).

In the instant case, the arresting officers testified that the appellant was highly intoxicated at the time of his arrest, and was playing pool. Playing pool is generally thought to require some degree of skill unlikely to be compatible with extreme intoxication. Furthermore, there was no testimony as to the appellant’s danger to himself or to others, and in the absence of such testimony, the State has failed to establish probable cause justifying an arrest for public intoxication. See Davis v. State, 576 S.W.2d 378 (Tex.Crim.App.1978), which in a footnote at 380 states:

We also note that there was not probable cause to arrest for public intoxication. In order to arrest for public intoxication under V.T.C.A., Penal Code Sec. 42.08, the arresting officer must have reason to believe the suspect is intoxicated “to the degree that he may endanger himself or another.” In this instance appellant was walking along a sidewalk in the early afternoon without any difficulty when first observed by the officer. Only on close inspection did Davis appear to the officer to be intoxicated because he was somewhat unsteady on his feet and his speech was slurred. There was no indication that he was in any way a danger to himself or anyone else. There was no probable cause for an arrest for public intoxication, had there been such an arrest.

No other justification for the warrantless arrest, under either Chapter 14 of the Code of Criminal Procedure or any other authority, has been claimed by the State.

Accordingly, I would sustain appellant’s third ground of error, reverse the judgment of the trial court, and remand the cause for a new trial.


author: WARREN, Justice.

text:
    Mateo SALAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0011-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Rehearing Denied Dec. 20, 1984.

      Michael P. Fosher, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist Atty., Roe Morris, John Kyles, Harris County Asst. Dist. Attys., Houston, for ap-pellee.
    Before WARREN, COHEN and LEVY, JJ.
   OPINION

WARREN, Justice.

After a plea of not guilty to the court, appellant was found guilty of aggravated robbery and his punishment was assessed at 50 years confinement. Prior to trial, the court conducted an extensive hearing to inquire into the merits of appellant's motion to suppress identification testimony and his motion to set aside the indictment for failure to provide him with a speedy trial. These motions were overruled. Trial to the court was on stipulated evidence which included a stipulation that witnesses appearing at the pre-trial hearing would offer the same testimony at a trial on the merits.

The pre-trial testimony showed that appellant entered and robbed the Commonwealth Savings on September 15, 1982. After leaving the establishment, he attempted to commandeer a car driven by Anna Purkey and shot her as she drove away. Appellant then stopped a car driven by Nugent Myrick, took control of it, and drove with Myrick to the east side of Houston, approximately a 30 minute trip. Pur-key, Myrick, Ralph Morris, and Richard Stonely, loan officers for Commonwealth Savings, all identified appellant as the robber. Purkey, Morris, and Stonely each stated that this identification was based upon their recollection of the events of the robbery and not upon pre-trial identification procedures.

Appellant brings three grounds of error. The first contends that there is insufficient evidence to support the conviction. He complains specifically that, because the witnesses testified that the robber was wearing a cap and sunglasses, their testimony proved that they had an insufficient view of the robber to establish his identity beyond a reasonable doubt. These facts do not preclude appellant’s identification. We find the state’s identification testimony was sufficient to prove this element of their case. E.g., Moore v. State, 446 S.W.2d 877 (Tex.Crim.App.1969). Appellant’s first ground is overruled.

Appellant’s second ground contends that the court erred in overruling his motion to suppress his in-court identification. He directs our attention to evidence of numerous incidents which allegedly tainted the witnesses’ identification testimony and rendered it inadmissible. We find this complaint is without merit. Richard Stonely, the most emphatic of the several witnesses, was not involved in any of the pre-trial identification procedures which appellant contends were prejudicial. Furthermore, Stonely, Morris, and Purkey testified that their identification of appellant was based on their recollection of the robbery and not upon pre-trial identification procedures. We find sufficient indicia of the reliability of the in-court identification to overcome any suggestiveness in the pre-trial identification procedures. See Manson v. Brathwaite, 482 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Munguia v. State, 603 S.W.2d 876 (Tex.Crim.App.1980); Green v. State, 488 S.W.2d 805 (Tex.Crim.App.1972). Appellant’s second ground is overruled.

Appellant’s third ground of error claims that the court erred in denying his motion to dismiss the case for failure to afford him a speedy trial. The dates and occurrences pertinent to this ground of error are as follows:

September 15, 1982 — Commonwealth Savings robbed.
September 16, 1982 — Appellant indicted for 3 counts of aggravated robbery.
September 17, 1982 — Warrant issued for appellant’s arrest.
January 16, 1983 — Appellant arrested in New York.
January 17, 1983 — State sent a detainer to New York.
March 26, 1983 — Appellant returned to Houston by federal authorities and placed in the Harris County Rehabilitation Center as a federal prisoner.
April 6, 1983 — State filed a detainer with the U.S. Marshall’s office.
April 18, 1983 — U.S. District Judge James DeAnda, by docket entry, ordered federal prosecution deferred and appellant released to the state. (There is no evidence that this order was communicated to the state authorities.)
June 30, 1983 — Investigator from Harris County District Attorney’s office made personal inquiry of federal authorities concerning Judge DeAnda’s order of April 18th. On same date, Judge De-Anda signed a written order transferring appellant to state authorities.
October 13, 1983 — Appellant brought into state court for the first time; state announced ready; pre-trial motions heard.
October 20, 1983 — Appellant, after a plea of not guilty, found guilty by the court.

Appellant’s complaint looks to Tex.Code Crim.P.Ann. art. 32A.02 (Vernon 1981) (the Speedy Trial Act). It provides in pertinent part:

Sec. 1. A court shall grant a motion to set aside an indictment ... if the state is not ready for trial within:
(1) 120 days of the commencement of a criminal action if the defendant is accused of a felony;
Sec. 2. (a) Except as provided in Subsections (b) and (c) of this section, a criminal action commences for purposes of this article when an indictment ... or complaint against the defendant is filed in court....
Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:
(1) a reasonable period of delay resulting from other proceedings involving the defendant, including but not limited to proceedings for the determination of competence to stand trial, hearing on pretrial motions, appeals, and trials of other charges;
(9) a period of delay resulting from detention of the defendant in another jurisdiction, if the state is aware of the detention and exercises due diligence to obtain his presence for trial ....

The state’s announcement of readiness within the prescribed period constitutes a prima facie showing that it has complied with the requirements of the Speedy Trial Act. Phipps v. State, 630 S.W.2d 942, 947 (Tex.Crim.App.1982). This prima facie showing is rebutted by proof that the defendant was absent during the time in which the state claimed to be ready. Newton v. State, 641 S.W.2d 530 (Tex.Crim.App.1982). The absence of the defendant is a circumstance that prevents the state from being ready as contemplated by the Speedy Trial Act. Id. Once the prima facie showing of readiness is rebutted, the state must prove that there were excluda-ble periods of delay that bring its handling of the case within the statutory time limitation. Pate v. State, 592 S.W.2d 620 (Tex.Crim.App.1980). Appellant concedes that the period from September 16, 1982, to March 26, 1983, is excludable from this calculation, but contends that none of the 196 days from March 26, 1983, until October 13, 1983, are excludable, and that the state was therefore not ready for trial within 120 days as the Act requires.

There is no evidence that the state made any inquiry about the status of appellant’s federal proceeding or made any efforts to obtain his custody from April 6, 1983, to June 30, 1983. The question presented is thus whether, after filing its detainer with the United States, the state was required to make additional efforts to obtain appellant’s presence in state court during that two and one half month period in order to prove due diligence under the Act. In deciding this question, we note that the Speedy Trial Act creates significant cost and logistics problems for the state when a defendant is charged with offenses in different jurisdictions. The Texas courts have generally been unsympathetic to these difficulties. See Ybarho v. State, 659 S.W.2d 898 (Tex.App.—San Antonio 1983, no pet.); Taylor v. State, 666 S.W.2d 157 (Tex.App.—Houston [14th Dist] 1983, pet. ref’d); Flores v. State, 647 S.W.2d 363 (Tex.App.—Corpus Christi 1982, no pet.) Cases reversing the trial court’s finding of due diligence in procuring the defendant’s presence have not indicated the standard for the review of the trial court’s determination. They also offer little guidance regarding what a reasonable delay is, given the practical difficulties inherent in satisfying this burden.

We find Parish v. State, 632 S.W.2d 200 (Tex.App.—Fort Worth 1982, no pet.) similar to the instant ease. In Parish, the court held that a three-month delay by the Tarrant County District Attorney in securing the presence of a defendant held in the Dallas County jail and awaiting trial in Dallas county was not unreasonable. As in Parish, the delay in the instant case provided a reasonable period of time for another law enforcement entity to prosecute its case. We find that the period from April 6th until June 30th is excludable from the 120 day period within which the state was required to be ready for trial and that the Act’s requirements were satisfied. This period constituted both a reasonable delay resulting from other proceedings involving the defendant, and a period of delay resulting from defendant’s detention in another jurisdiction when the state was aware of the detention and exercised due diligence to obtain his presence at trial. Tex.Code Crim.P.Ann. art. 32A.02, sec. 4(1), (9) (Vernon Supp.1984). Appellant’s third ground of error is overruled.

The judgment of the trial court is affirmed.


author: COHEN, Justice.

text:
    Anthony FALCONE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0314-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Bob Heath, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., J. Harvey Hudson, W.E. “Rusty” Herman, Clayton Rawlings, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before WARREN, LEVY and COHEN, JJ.
   OPINION

COHEN, Justice.

The appellant pleaded not guilty to a three paragraph indictment alleging: 1) theft of three thousand mechanical prints of the value of over $20,000.00, in violation of Tex.Penal Code Ann. sec. 31.03 (a), (b)(1) as amended in 1981; 2) theft of three thousand mechanical prints by appropriating the property knowing it was stolen by another, in violation of sec. 31.03(a), (b)(2); and 3) theft of trade secrets, in violation of sec. 31.05(b)(1). The court granted the appellant’s motion for instructed verdict as to the second paragraph, theft by receiving, and the State abandoned the third paragraph, theft of trade secrets. The jury convicted the appellant of felony theft of three thousand mechanical prints of over $20,000 value, as alleged in the indictment’s first paragraph, and the judge assessed punishment at six years confinement, probated, and a $2,000.00 fine.

The appellant’s sole contention on appeal is that the evidence was insufficient. The record shows that the appellant was employed by All Seals Corporation, which was in the business of repairing seals for high pressure pumps used in refineries, chemical plants, and manufacturing facilities. These seals consisted of several parts which could be disassembled for repair. Thousands of different parts in various sizes and shapes must be duplicated by a company in the business of repairing seals. For every part there is a mechanical print or drawing showing the general configuration, the materials used, and the exact dimensions of the part to be duplicated. At All Seals these mechanical prints or drawings were filed for future use in the event that an identical seal needed repair.

The appellant worked in the machine shop and in outside sales at All Seals for several years before going into business for himself. He was terminated in the fall of 1978 when the principal owner and then president of All Seals, Morris Womack, discovered that the appellant had already begun his own business of repairing seals and was, in fact, competing with All Seals for customers.

In the first quarter of 1979, Womack learned that the number of photocopies made on the company Xerox machine had increased by several thousand around the time the appellant left All Seals’ employment. Four years later, officers of the Special Theft Division of the Houston Police Department received information from a confidential informant which allowed them to obtain a search warrant for the offices of the appellant, then doing business as Dyna Tech. Three thousand copies of All Seals manufacturing prints were found in the two work areas of Dyna Tech’s main building. The appellant was arrested at the same time for the offense of theft of trade secrets.

At trial, the appellant presented evidence that the manufacturing prints were not stolen, but had been collected by a former president of All Seals, James Eaton, during his tenure in 1981 and 1982. Eaton testified that he had taken the prints home and sorted them in an effort to control the inventory of pump seals at All Seals. This action was taken with the knowledge and consent of Morris Womack. Womack later fired Eaton, and the prints lay around Eaton’s house for several months until Christmas of 1982, when he took them to the appellant hoping that the appellant could benefit from them.

The appellant argues that there was no evidence that he unlawfully appropriated three thousand mechanical prints. He contends that Eaton’s unrebutted testimony explained how the copies of the prints came to be on Dyna Tech’s premises. However, even if the jury believed Eaton’s testimony, the appellant could have also believed the testimony of his ex-wife, Dorothy Farbert. Farbert stated that she had seen copies of All Seals’ prints in their home as early as July, 1978, when the appellant started his business, and as recently as April, 1983. Consequently, even if the appellant received some copies of prints from Eaton in 1982, there was evidence that he had copied other prints while employed by All Seals.

The appellant also argues that there was no probative evidence establishing the value of the prints at more than $20,000. However, Womack testified that the prints, if sold in one package, were worth $500,-000, and that they had a replacement value of between $200,000 and $300,000. Value was thus proved in accordance with Tex.Penal Code Ann. sec. 31.08 (Vernon 1974).

The appellant further suggests that there was insufficient evidence to prove that he intended to deprive Womack of the prints. The intent to deprive the owner of property must be proved in order to sustain a theft conviction, and failure to prove it requires reversal. See Bryant v. State, 627 S.W.2d 180 (Tex.Crim.App.1982).

The term “deprive" is defined under Tex. Pen.Code Ann. sec. 31.01(3) (Vernon 1974), as:

A) to withhold property from the owner permanently or for so extended a period of time that a major portion of the value of enjoyment of the property is lost to the owner;
B) to restore property only upon payment of reward or other compensation; or
C) to dispose of property in a manner that makes recovery of the property by the owner unlikely.

There is no proof that the appellant intended to withhold the prints from Wom-ack permanently or for any period of time, nor was there evidence that he intended to hold the prints for ransom, or to dispose of the prints in a way that made their recovery by Womack unlikely. No prints ever left Womack’s possession. On the contrary, Womack testified that the prints possessed by the appellant were not his original drawings, but were merely copies, and that he still had every original drawing in his master file at All Seals. Nothing in the record shows an intent to deprive Womack of his prints. And, while the value of the prints was proved, there was no evidence that Womack was deprived of any part of that value or that the appellant intended to deprive him of that value. Therefore, we conclude that the evidence was insufficient to prove a theft under Penal Code sec. 31.03(a), (b)(1), the only crime of which the appellant was convicted.

What the appellant did in this case may have constituted an offense under the theft of trade secrets statute, Penal Code secs. 31.05(b)(2) and 31.05(b)(3). The appellant was not charged with either of these offenses, however. Although he was charged with theft of trade secrets under see. 31.05(b)(1), the State abandoned that paragraph of the indictment.

We further conclude that this case presents fundamental error. The appellant was improperly convicted under the general theft statute, Penal Code sec. 31.03(a), (b)(1), when he should have been charged under Penal Code sec. 31.05(b) (Vernon 1974), a special theft statute entitled Theft of Trade Secrets.

The general theft statute, sec. 31.03, reads, in pertinent part:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property-
(b) Appropriation of property is unlawful if:
(1)it is without the owner’s effective consent; ...

The theft of trade secrets statute reads, in pertinent part:

31.05. Theft of Trade Secrets.
(a) For purposes of this section:
(1) “Article” means any object, material, device, or substance or any copy thereof, including a writing, recording, drawing, sample, specimen, prototype, model, photograph, microorganism, blueprint, or map.
(2) “Copy” means a facsimile, replica, photograph, or other reproduction of an article or a note, drawing, or sketch made of or from an article.
(3) “Representing” means describing, depicting, containing, constituting, reflecting, or recording.
(4) “Trade secret” means the whole or any part of any scientific or technical information, design, process, procedure, formula, or improvement that has value and that the owner has taken measures to prevent from becoming available to persons other than those selected by the owner to have access for limited purposes.
(b) A person commits an offense if, without the owner’s effective consent, he knowingly:
(1) steals a trade secret;
(2) makes a copy of an article representing a trade secret; or
(3) communicates or transmits a trade secret.
(c) An offense under this section is a felony of the third degree.

The Court of Criminal Appeals has held in Ex parte Harrell, 542 S.W.2d 169 (Tex.Crim.App.1976) that if a defendant’s conduct is proscribed under a general statute and a specific statute, and both statutes have the same general purpose, the defendant should be charged under the specific statute. See also Williams v. State, 641 S.W.2d 236 (Tex.Crim.App.1982); Tawfik v. State, 643 S.W.2d 127 (Tex.Crim.App.1982); and Jones v. State, 552 S.W.2d 836 (Tex.Crim.App.1977). The holding in Ex parte Harrell and similar cases is based on the rule of statutory construction codified in Tex.Rev.Civ.Stat.Ann. art. 5429b-2, sec. 3.06 (Vernon Supp.1984), the Code Construction Act, which provides:

If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision unless the general provision is the later enactment and manifest intent is that the general provision prevail.

Tex.Penal Code, sec. 1.05(b) (Vernon 1974) provides:

Unless a different construction is required by the context, Sections 2.01, 2.02, 2.04, 2.05, and 3.01-3.12 of the Code Construction Act ... apply to the construction of this code.

Penal Code sec. 31.03 is a broad and general theft statute applicable to all types of unlawful appropriation of property. Section 31.05 is more specific than the general theft statute in at least three ways: (1) the victims are restricted to the owners of trade secrets; (2) the property is limited to trade secrets, as defined; and (3) the manner of commission of the offense includes not only stealing a trade secret but also copying an article representing a trade secret or communicating or transmitting the trade secret. Furthermore, sec. 31.05 anticipates the kind of proof problem presented in this case by eliminating the element of intent to deprive.

The practice commentary of sec. 31.05 acknowledges the specificity of the statute. It notes:

In addition to the thefts proscribed in subsection (b)(1), this section criminalizes unauthorized reproductions and communications of trade secrets, Subsections (b)(2) and (3). Both are methods of stealing covered under subsection (1) if there is intent to deprive, but Subdivisions (2) and (3) cover that conduct whether or not it is theft, (emphasis supplied)

Since there were significant conflicts between the general theft statute and the specific theft of trade secrets statute, both as to elements of proof and as to penalty range, the appellant should have been charged with the more specific offense, theft of trade secrets.

The sole ground of error is sustained.

The judgment of conviction is reversed and a judgment of acquittal is hereby entered. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

      . Texas Penal Code, sec. 31.03(a), (b)(1), ch. 298, sec. 2, 1981 Tex.Gen.Laws 849, amended by ch. 497, sec. 3, 1983 Tex.Gen.Laws 2918.


text:
    Jose CRUZ, Relator, v. Hon. Jim SCANLAN, Respondent.
    No. 01-84-0627-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.
    Bonnie J. Fitch, Rhodes & Fitch, Houston, for relator.
    Samuel Gutierres, Houston Volunteer Lawyer’s Program, Houston, for respondent.
    Before WARREN, LEVY and COHEN, JJ.
   OPINION

COHEN, Justice.

Relator Jose Cruz asks this court to issue a writ of mandamus directing the probate court to vacate an order naming a temporary guardian.

Relator is the stepfather of two children whose mother died on April 18, 1984. In its order of September 28, 1984, the probate court appointed as temporary guardian the children’s aunt, Shiren Lucits Dean. Relator challenges the authority of the probate court to name the temporary guardian, because on August 30, 1984, he had filed a petition for termination and adoption in the 257th Family District Court. This court granted leave to file an application for a writ of mandamus on October 11, 1984.

Mandamus has been held to be an appropriate remedy when a subsequent suit is filed after another court in which suit is first filed acquires dominant jurisdiction. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.1974).

Both the probate courts and district courts have jurisdiction to issue temporary orders such as that issued in this case. Tex.Prob.Code Ann. sec. 131 (Vernon 1980) authorizes probate courts to appoint temporary guardians. Similarly, Tex. Fam.Code Ann. sec. 11.11(a)(1) (Vernon Supp.1984) gives the district courts authority to issue orders for temporary conserva-torship. Guardianship of the person is essentially a managing conservatorship. In re Guardianship of Henson, 551 S.W.2d 136 (Tex.Civ.App.—Corpus Christi 1977, writ ref d n.r.e.). However, once a district court acquires jurisdiction of a suit affecting the parent-child relationship, no other court has jurisdiction of parties and matters in connection with the child. Tex.Fam. Code sec. 11.05(a) (Vernon Supp.1984) provides in part:

when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing exclusive jurisdiction of all parties and matters provided for under this subtitle in connection with the child.

Thus, section 11.05(a) specifies that once a district court acquires jurisdiction, it retains continuing jurisdiction except as otherwise provided. Greene v. Schuble, 654 S.W.2d 436, 439 (Tex.1983), (Ray, J., dissenting) (writ granted on other grounds); Sawa v. Williams, 656 S.W.2d 204 (Tex.App.—San Antonio 1983, no writ).

In a suit for termination and adoption, jurisdiction attaches upon the filing of a suit. Mayo v. Hall, 571 S.W.2d 213 (Tex.Civ.App.—Waco 1978, no writ). Tex.Fam.Code Ann. sec. 11.07(a) provides that “a suit affecting the parent-child relationship shall be commenced by the filing of a petition as provided in this chapter.” Accordingly, Cruz’s filing of the petition for termination and adoption in the district court vested that court with continuing exclusive jurisdiction and the probate court’s subsequent order appointing a temporary guardian was ineffective.

The aunt responds by citing subsection (e) of 11.05 of the Family Code as authority for her assertion that the district court did not have continuing exclusive jurisdiction. The language of this subsection taken out of context is misleading. It reads:

A court does not acquire continuing exclusive jurisdiction over the matters provided for under this subtitle in connection with the child before the entry of a final decree.

This section deals with the filing of subsequent suits and does not control interlocutory orders prior to the disposition of the case, which is covered by subsection (a) of 11.05. See Greene v. Schuble, 654 S.W.2d at 439.

The aunt also asserts that Cruz has no standing to bring a suit affecting the parent-child relationship. However, Tex. Fam.Code Ann. sec. 11.03 authorizes a person who has had possession and control of the child for at least six months immediately preceding the filing of a petition to bring suit. Whether Cruz met this requirement is a factual question to be decided by the district court, and is not before us for review.

Relator’s petition for writ of mandamus is conditionally granted. We are confident that Judge Scanlan will vacate his order appointing a temporary guardian. The writ of mandamus will issue only if the order is not vacated.


author: REYNOLDS, Chief Justice.

text:
    John WHITSON and Freeda Whitson, Appellants, v. Anthony G. HARRIS, Individually and as Receiver for First United Life Insurance Company of America, Appellee.
    No. 07-83-0197-CV.
    Court of Appeals of Texas, Amarillo.
    Dec. 4, 1984.

      Karl L. Rubinstein, Steven Alan Bennett, Freytag, Laforce, Rubinstein, Stutzman & Teofan, Dallas, for appellants.
    Betty Newby, Borger, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   REYNOLDS, Chief Justice.

John Whitson and his wife, Freeda Whit-son, have perfected this appeal from the trial court’s venue order granting the plea of privilege of Anthony G. Harris, sued individually and as receiver for First United Life Insurance Company of America, and transferring the action filed by the Whitsons in Gray County to the district court in Travis County where the receivership is pending. The court’s order being proper, we affirm.

Freeda Whitson sustained an injury for which the Whitsons claimed the benefits provided in a group health insurance policy-issued by First United Life Insurance Company of America. At the time the Whit-sons filed the claim, the insurance company had been placed in receivership upon the application of the State of Texas and by order of the 250th Judicial District Court of Travis County.

By its order, the court appointed Anthony G. Harris, the statutory Liquidator for the State Board of Insurance, as the temporary receiver to take charge of the property and assets of the insurance company, investing him with all powers and authority, and particularly those contained in article 21.28 of the Texas Insurance Code, appertaining to an appointed receiver. The court’s order included its further order for the issuance of a temporary injunction enjoining and restraining all persons, among others specifically named, from, among other things, “commencing or prosecuting any action ... and from asserting any claims against the defendant [First United Life Insurance Company of America] or the receiver thereof [Anthony G. Harris], except in the receivership proceedings herein.”

The Whitsons’ claim was received by Harris. The claim was “fully denied as excluded from coverage under the policy issued by said company.”

Then, the Whitsons filed the action underlying this appeal in Gray County. By their action, the Whitsons contend, in essence, that in denying their claim, Harris was responsible for certain enumerated acts and misrepresentations made actionable by the Texas Insurance Code and the Deceptive Trade Practices-Consumer Protection Act (DTPA), for which he, individually and as receiver for the insurance company, was liable for the monetary recovery authorized by the DTPA.

Harris interposed his plea of privilege, which was controverted by the Whitsons. After a hearing, the court sustained the plea and ordered the cause transferred to the 250th Judicial District Court of Travis County without stating the basis for the order.

The Whitsons predicate their appeal on two points of error. However, for the appellate decision in this appeal, it suffices, without addressing all of the Whitsons’ challenges to the trial court’s order, to state the reasons why the order must be upheld.

Harris’ plea of privilege, cast in the form statutorily prescribed, was prima facie proof of his right to the change of venue. Victoria Bank & Trust Co. v. Monteith, 188 Tex. 216, 158 S.W.2d 63, 68-69 (1941). Upon the filing of Harris’ plea, the Whitsons assumed the burden of proving that, as pleaded in their controverting affidavit, venue was properly maintainable in Gray County. Burtis v. Butler Bros., 148 Tex. 543, 226 S.W.2d 825, 828 (1950). By virtue of his plea, Harris was entitled to present evidence tending to contradict the Whitsons’ proof or tending to defeat their asserted right to hold venue in Gray County. Victoria Bank & Trust Co. v. Monteith, supra, 158 S.W.2d at 69.

In offering their proof, the Whit-sons relied on the venue provision of section 17.56 of the DTPA, which section is couched in “may be commenced” language that, as they candidly concede, has been construed to be a purely permissive venue provision. Portland Sav. & Loan Ass’n v. Bevill, Etc., 619 S.W.2d 241, 246 (Tex.Civ.App.—Corpus Christi 1981, no writ). Responding to the contrary, Harris directed the attention of the court, prior to the signing of the venue order, to article 21.28, section 3(h), of the Texas Insurance Code, which provides, in part, that when the receiver rejects a claim against the insurer, he shall notify the claimant of such rejection by written notice, and that:

Action upon a claim so rejected must be brought in the court in which the delinquency proceeding is pending within three (3) months after service of notice; otherwise, the action of the receiver shall be final and not subject to review.

The “must be brought” language in the statute is a mandatory command to which a permissive statute must yield. Langdeau v. Burke Investment Company, 163 Tex. 526, 358 S.W.2d 553, 555-56 (1962). It follows that the trial court properly determined that the venue of the Whitsons’ action is in the district court of Travis County where the receivership proceeding is pending.

Beyond that, the 250th Judicial District Court of Travis County had issued its injunction against the commencing or prosecution of any action against the insurance company or the receiver except in the receivership proceedings pending in that court. The injunction is authorized by article 21.28, section 4(b), of the Texas Insurance Code, by which the Legislature validly provided for the regulation of insolvent insurance companies and the enforcement thereof in a particular locality, Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435, 441-42 (1961), and the Whitsons have not challenged the injunction in any manner in this appeal. The injunction, therefore, is entitled to honor so long as it subsists. Accord, Floyd v. Eggleston, 137 S.W.2d 182, 184 (Tex.Civ.App.—El Paso 1939, writ ref’d), cert. denied, 311 U.S. 708, 61 S.Ct. 314, 85 L.Ed. 460 (1940), reh’g denied, 312 U.S. 713, 61 S.Ct. 609, 85 L.Ed 1143 (1941).

Accordingly, the trial court’s judgment is affirmed.

      . Tex.Ins.Code Ann. (Vernon 1981).

      . The Deceptive Trade Practices-Consumer Protection Act is a part of the Texas Business and Commerce Code, section 17.41 et seq. (Vernon Supp.1984).


author: EVANS, Chief Justice.

text:
    John Henry FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0850-CR.
    Court of Appeals of Texas, Houston (1st Dist,).
    Dec. 6, 1984.
    Warren G. Clark, Jr., Anahuac, for appellant.
    Eugene T. Jenson, County Atty., for Chambers County, Anahuac, for appellee.

      Before EVANS, C.J., and JACK SMITH and DUGGAN, JJ.
   OPINION

EVANS, Chief Justice.

A jury convicted the appellant of illegal use of shrimping equipment in violation of Tex.Parks & Wild.Code Ann. sec. 77.084 (Vernon Supp.1984). The trial court assessed his punishment at a fine of $150. The appellant brings two grounds of error on appeal, both challenging the sufficiency of the evidence.

In his first ground of error, appellant asserts that the state failed to prove that he intentionally and knowingly had on board his boat two trawl doors. The statute does not by its terms require intentional or knowing possession of the trawl doors, but where no culpable mental state is specifically listed in a criminal statute, proof of a culpable mental state is still required. Tex.Penal Code Ann. secs. 6.02(b), 1.03(b) (Vernon 1974). The indictment in the case at bar alleged that appellant:

did then and there unlawfully, intentionally and knowingly, have on board a boat controlled by said defendant ... in the inside water for use on the inside water ... more than one set of trawl doors.

Unnecessary allegations in an indictment must be proved as alleged if they are descriptive of an essential element of the crime. Windham v. State, 638 S.W.2d 486 (Tex.Crim.App.1982).

The evidence shows that appellant owned the boat on which he was found in the inside waters of the Gulf of Mexico. On board the boat were two sets of wet nets, both containing fresh fish and shrimp. When confronted by the state game wardens, appellant denied that he was using both of the trawl doors and nets. One net was attached to trawl doors on the port side of the boat, and on the starboard side there was another set of trawl doors racked up, and another net containing live fish and shrimp was on the stern of the boat. Both sets of trawl doors were wet and muddy. One of the game wardens testified that, in his opinion, both of the trawl doors had been used to catch the fish and shrimp in the inside waters, because the fish would not have still been alive if they had been caught in the gulf. When the boat reached the dock, it was again examined by another state game warden who testified:

A. I observed on that boat two sets of shrimp trawler doors, one set attached to a large shrimp trawl, cables attached to the trawler doors and run through the rigging and to the winch cables — Excuse me, to the winch.
The other set of doors were wet, muddy, and shell was dripping off of them onto the deck.
The winch cables were attached to the door. They were through the rigging and through the winch. The net was not attached. It was piled on the rear part of the boat.
In the net — In both nets was a quantity of fresh seafood, menhaden, shrimp, and crabs, and other types of fish.

Intent need not be proven by direct evidence, and it may be inferred from the acts of the accused. Dues v. State, 634 S.W.2d 304 (Tex.Crim.App.1982). We find that the evidence was sufficient to prove that appellant intentionally and knowingly had the two sets of trawl doors on his boat for use in catching fish and shrimp in the inside waters of the gulf. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the circumstantial evidence amounted only to a suspicion or a mere probability of his participation in the offense. On appeal, the standard for review is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (op on reh’g). The evidence shows that appellant owned the boat, and that two sets of trawl doors were on the boat showing signs of recent use in the inside waters of the gulf. Viewing the evidence in the light most favorable to the state, we find that the jury could have found all of the elements of the offense beyond a reasonable doubt. Appellant’s second ground of error is overruled.

The judgment of the trial court is affirmed.


author: PER CURIAM.

text:
    Robert Lee NORSWORTHY, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0358-CR.
    Court of Appeals of Texas, Houston (1st Dist.)
    Dec. 6, 1984.
    Joe Cannon, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Calvin A. Hartmann, Harris County Asst. Dist. Atty., Houston, for appellee.
    Before EVANS, C.J., and DUGGAN and LEVY, JJ.
   OPINION

PER CURIAM.

This is an appeal from a conviction for the offense of aggravated robbery.

The record reflects that appellant is indigent and represented by court-appointed counsel, Joe Cannon. No brief has been filed on appellant’s behalf.

Appellant’s brief was originally due in this court on October 19,1984. On October 23,1984, this court notified appellant that a brief had not been filed and that unless a brief and a motion to extend time were filed within 10 days, the court would take appropriate action. Appellant then filed a motion to extend the time for filing his brief until November 14, 1984. The court granted appellant's motion to extend time to file a brief until November 14, 1984, but expressly provided in its order that “NO FURTHER EXTENSIONS WOULD BE GRANTED”.

In the face of such notification, on November 13, 1984, appellant’s counsel filed a second motion to extend the time for filing appellant’s brief, stating only that the press of other business prevented him from having sufficient time to prepare the appellant’s brief. We deny this second motion, concluding that appellant’s counsel has not shown a good cause for a further extension under the circumstances presented.

A court-appointed appellate counsel must act as an advocate for his indigent client, and this requires that counsel prepare and file a brief on appellant’s behalf. See, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.1969); and Currie v. State, 616 S.W.2d 684 (Tex.Crim.App.1974).

We abate the appeal and return the cause to the trial court for such action as necessary to protect the right of the appellant to effective assistance of counsel on appeal.

Accordingly, the appeal is abated.