author: FENDER, Chief Justice.

text:
    Bobby Joe WILSON, Appellant, v. The STATE of Texas, State.
    Nos. 2-84-127-CR, 2-84-128-CR and 2-84-129-CR.
    Court of Appeals of Texas, Fort Worth.
    May 1, 1985.
    J.R. Molina, Forth Worth, for appellant.
    Tim Curry, Dist. Atty., and David L. Richards, Asst. Dist. Atty., Fort Worth, for the State.
    Before FENDER, C.J., and BURDOCK, J.
   OPINION

FENDER, Chief Justice.

Appellant was charged in three separate indictments for the offense of burglary of a building. TEX. PENAL CODE ANN. sec. 30.02 (Vernon 1974). Each indictment contained three enhancement paragraphs. Enhancement paragraph one was waived by the State. Appellant entered pleas of guilty to the primary offenses alleged, but chose not to enter a plea to the enhancement paragraphs. A plea of “not true” was entered in his behalf by the trial court. After hearing the evidence, the trial court found enhancement paragraphs two and three to be true. Punishment was assessed in each case at thirty years confinement in the Texas Department of Corrections, to run concurrently.

We affirm.

In his first ground of error, appellant contends that the trial court erred by denying appellant’s motion to quash enhancement paragraph three in cause nos. 0221265D and 219102A because the prior conviction alleged in enhancement paragraph three is alleged to have been final on June 12, 1968, when in actuality it became final on December 27, 1968, when the Court of Criminal Appeals issued a mandate affirming the conviction. We find no merit to appellant’s contention. Similar arguments have been uniformly rejected by the Court of Criminal Appeals. See Burton v. State, 493 S.W.2d 837, 839-40 (Tex.Crim.App.1973); Head v. State, 419 S.W.2d 375, 377 (Tex.Crim.App.1967) and Rener v. State, 416 S.W.2d 812, 814 (Tex.Crim.App.1967). In Rener v. State, the Court of Criminal Appeals addressing this same argument stated:

The appeal, the affirmance and the issuance of the mandate which was filed with the clerk of the trial court on June 29, 1960, did not affect the date of the finality of the judgment rendered and entered and the sentence pronounced by the trial court on January 11, 1960.

Rener v. State, 416 S.W.2d at 814.

We conclude that the State properly plead the sentencing date in the enhancement paragraphs at issue. Accordingly, appellant’s first ground is overruled.

In his second ground, appellant contends that the trial court erred in overruling his motion for specific performance of a plea bargain agreement.

The record reflects that appellant filed a “Motion for Specific Performance of a Plea Bargain” upon which a hearing was held. Basically, appellant contends that a prior plea bargain offer of ten years confinement was made by the State and accepted by appellant who now claims the trial court erred in not reinstating this offer. The State’s position is that this offer was made for a limited time only and was withdrawn when appellant’s counsel indicated his client would not accept the offer. Appellant offered the testimony of three witnesses: (1) Judge Jake Cook, the former public defender for Criminal District Court Number Four of Tarrant County; (2) appellant himself; and (3) J.R. Molina, defense counsel at the time of the hearing.

Jake Cook testified that although he could not specifically recall appellant’s cases, his records indicated that he was appointed to represent him on August 31, 1983. He further testified that he represented Aubrey Whiting who was indicted in a companion case, and remembered Whiting’s plea of guilty in return for a ten-year sentence. “Possibly,” he said, “they offered Mr. Wilson the same thing, I’m not positive.” During his testimony, the following exchange occurred:

Q. Do you recollect, Judge Cook, if during the time that you represented Mr. Wilson, which was apparently several months there, whether Mr. Wilson accepted the ten years?
A. He must not have or he would have been pled.
Q. Or could it have been that the State of Texas, if you recollect, that withdrew the offer?
A. Possibly it was a limited offer for some period of time. I just don’t recall specifically as to Mr. Wilson what happened. Apparently, for some reason, he didn’t plead.

He further indicated that because he represented Mr. Whiting in a companion case and because he normally asked to withdraw from the representation of one of two defendants charged with the same offense because of a potential conflict of interest, he assumed that his withdrawal in the present ease, and the subsequent appointment of another attorney, occurred for that reason. The court’s records reflect that Whiting, represented by Cook, pled guilty on October 24, 1983, ten days after J.R. Molina was appointed to represent appellant.

Appellant testified that a ten-year offer had been made, although he was very unspecific as to exactly when he accepted it. In response to the question “Tell us, if you would, when this ten-year offer was made to you? If you recall”, appellant stated:

A. Well, I think that I was picked up — I was brought back to the county jail. When I did finally make it to Court, Mr. Cook had already told me that he couldn't represent me because he was on the same case.
So, he told me that if he could, he would try to me [sic] a plea bargain before he got off my case. So then, he asked me if I would take ten years and I said, “yes”. And he came in here and talked to the Judge or DA or whatever and when he came back — well, in the meantime, they brought me in here to appoint you [J.R. Molina] as my lawyer.

Appellant further indicated he thought Whiting “had his ten years before I did [have the offer],” and that he did not “know if it was the same deal.” Appellant admitted that at the time he discussed a plea bargain with Jake Cook he had only been indicted on one of the three cases. Appellant testified that he told Cook that he would accept the ten-year offer.

J.R. Molina testified that he was appointed to represent appellant on October 14, 1983, but was only able to talk with him for about fifteen seconds on that occasion because of another pressing legal matter. Some weeks later when they again met, appellant asked Molina what had happened to the “ten-year agreement that he had”, and Molina told him that prosecution at the time was offering a plea bargain in the range of thirty-five to forty years for all three indictments and would not agree to a ten year plea.

Pam Moore, formerly the State’s chief prosecutor in Criminal District Court Number Four, testified for the State at the hearing and admitted that she previously had made a ten-year offer to both defendants conditioned on their quick acceptance. At the time of the offer Wilson had not been indicted for the third burglary offense. No acceptance of the plea bargain was made and the offer was specifically withdrawn by her. Under cross-examination she stated: “My understanding was that [the offer] was [refused]. It was never accepted. I set a specific date that it had to be accepted by when I said, ‘Are you going to plead? ’ he [Cook] said ‘One will and one won’t.’ ”

Tom Bellows, the State’s present chief prosecutor, indicated that he had made appellant an offer of thirty-five years in February of 1984 and that the first time any mention was made to him of a possible earlier agreement occurred on April 5,1984 when Molina asked him to find out if a ten-year offer had, in fact, been made. Bellows testified:

And in my investigation in to [sic] that, I discovered that an offer had been made in September or October of 1983 and that it had been refused. An offer had been withdrawn and the case prepared for trial in December;
That, in fact, my offer for thirty-five was left open for a period of time and was, in fact, reduced to thirty years with a time limit of last Friday for acceptance and it was not accepted and it was specifically withdrawn at that time.

At the close of the hearing, the trial court denied appellant’s motion for specific performance of a ten-year offer. Thereafter appellant, (without the benefit of a plea bargain) waived his right to a jury trial and entered a plea of “guilty” in each of the three cases.

The Court of Criminal Appeals’ recent decision in Thompson v. State, 691 S.W.2d 627, (Tex.Crim.App., 1984) provides controlling authority. There the Court addressed the issue as follows:

The record reflects that after appellant’s first conviction for the instant offense was reversed, the state offered to recommend a life sentence in exchange of appellant’s plea of guilty. Appellant rejected this offer. Later, the state again discussed the possibility of a life sentence, but appellant’s counsel suggested appellant would take only a term of 50 or 60 years. Appellant’s offer was not accepted by the state. Shortly before the instant trial began, appellant offered to plead guilty in exchange for a life sentence, but the state refused. Appellant contends the prosecution abused its discretion by refusing to accept his offer.
An accused has no constitutional right to demand that the state enter into a plea bargain. DeRusse v. State, 579 S.W.2d 224 [Tex.Cr.App.(1979)]; Morano v. State, 572 S.W.2d 550 [Tex.Cr.App.(1978)]; McCarty v. State, 498 S.W.2d 212 [Tex.Cr.App.(1973)]. Although plea bargains are enforceable after they are entered into, see Ex parte Williams, 637 S.W.2d 943 [Tex.Cr.App.(1982)]; Ex parte Rogers, 629 S.W.2d 741 [Tex.Cr.App.(1982)]; here, no agreement was reached between the state and appellant, and thus no error is shown. [Emphasis by the Court.]

Id. at 635.

The fact that the defendant in Thompson clearly rejected the State’s original plea bargain offer, whereas in the present case appellant alleged his intent to enter into the agreement, provides a distinction without significance.

A plea bargain is not “entered into” until the trial court accepts the plea agreement. In Ex parte Williams, 637 S.W.2d 943 (Tex.Crim.App.1982), the Court stated:

When a defendant agrees to the terms of a plea bargain agreement he is deemed to have entered into the agreement knowingly and voluntarily unless he shows otherwise. In effect, he becomes a party to a “contract”. Jones v. Estelle, 584 F.2d 687 (5th Cir.1978). The “contract” does not become operative until the court announces it will be bound by the plea bargain agreement. Once the court makes such an announcement, the State is bound to carry out its side of the bargain. [Emphasis added.]

Id. at 947. No testimony at the hearing in the present case indicated that the trial court was aware of the ten-year plea bargain offer or that it “announced” its agreement.

In DeRusse v. State, 579 S.W.2d 224 (Tex.Crim.App.1979) the Court of Criminal Appeals addressing a similar situation stated:

On April 29, 1976, appellant and an assistant district attorney entered into a plea bargain agreement under which appellant would plead nolo contendere to the offense of injury to a child and a jury would be impaneled to assess punishment. On May 7, three days before trial was set to begin, the district attorney informed appellant’s appointed defense counsel that he was withdrawing the plea bargain agreement. On May 10, appellant requested and received a continuance until July 5 in order to prepare for trial in light of the withdrawal of the agreement. Selection of the jury began on July 12.
In the instant case, the agreement was withdrawn prior to the entry of appellant’s plea. Appellant was in the same position he would have been in had no agreement been made, or had the trial court indicated that it would not follow the agreement and appellant withdrawn his plea. Art. 26.13, V.A.C.C.P.; Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975).
There can be little doubt that the withdrawal of the agreement by the district attorney could have prejudiced appellant had he been forced to trial without adequate time to prepare his defense. But the trial court gave appellant a two-month continuance after the agreement was withdrawn and appellant did not request a further continuance. Appellant argues that he was prejudiced by having to enter a not guilty plea after newspaper stories had been published stating his willingness to plead guilty to injury to a child. Aside from the fact that appellant has only agreed to plead nolo contendere, he has failed to point out any instance in which he was forced to accept a juror who had heard of the plea bargain agreement. In the absence of any showing of harm, we hold that the prosecutor’s withdrawal from the plea bargain agreement prior to the entry of a plea by appellant was not reversible error.

Id. at 236.

A careful review of the record in the present case reflects conflicting testimony as to whether the appellant accepted the State’s offer prior to the time it was withdrawn. Although appellant’s original trial attorney, Jake Cook, could not remember the circumstances of the offer, he testified that by the defendant’s failure to plead guilty at that time, he could now only assume that appellant rejected the offer. This finds support in Pam Moore’s testimony wherein she recalled Jake Cook advising her that “[o]ne [defendant] will [plead] and one won’t.” Additionally, Moore testified that the offer was specifically withdrawn. Moreover, even if appellant did accept the plea bargain offer, it is clear that the State withdrew its offer prior to trial, especially in light of the fact that the original offer was made at a time when appellant had less than three indictments returned against him. We conclude that appellant has no constitutional or contractual rights to demand specific enforcement of the agreement since it had never been “entered into” or, in other words, had not become operative. See Ex parte Williams, 637 S.W.2d at 943.

We hold that the trial court did not err in overruling appellant’s motion for specific performance of a plea bargain. Accordingly, appellant’s second ground is overruled.

In a third ground of error, appellant contends that the trial court erred in overruling his motion to quash enhancement paragraph one because defense counsel, a former assistant district attorney for Tar-rant County, was the reviewing attorney in that case. We find no merit to appellant’s contention in light of the fact that enhancement paragraph one was waived by the State. Accordingly, we overrule appellant’s third ground.

The judgment is affirmed.


source: Caselaw Access Project

author: HILL, Justice.

license: Public Domain

text:
    MYTEL INTERNATIONAL, INC., Appellant, v. TURBO REFRIGERATING COMPANY, Appellee.
    No. 2-84-113-CV.
    Court of Appeals of Texas, Fort Worth.
    May 2, 1985.

      Phillips, White, Davidge, Griffin, Shelton, Eames, Wood & Duncan and David C. White, Denton, for appellant.
    Whitten & Loveless, P.C. and Michael J. Whitten, Denton, for appellee.
    Before BURDOCK and HILL, JJ.
   OPINION

HILL, Justice.

Mytel International, Inc. sued Turbo Refrigerating Company for breach of an agreement to purchase office supplies. Turbo brought a counterclaim asserting fraud and violations of the Texas Deceptive Trade Practices Act. Mytel appeals from a judgment which awarded it nothing on its claim and which awarded $8,368.38 plus attorney’s fees to Turbo on its counterclaim.

Mytel presents eight points of error. Turbo has brought forward one cross-point of error.

We reverse, because we find that there was no evidence to support the jury’s finding as to the fair and reasonable market value of certain goods shipped from Mytel to Turbo. We remand for a trial on Turbo’s counterclaim, because we find that the interests of justice require another trial.

This case began in September 1978, when Rhonda Burnside, an employee in Turbo’s purchasing department, began ordering large numbers of office supplies from My-tel and other office supply companies. Turbo had only about 20 employees with clerical responsibilities, yet Burnside in less than a year placed four orders with Mytel totaling $11,634.64 for 5,352 markers, 1,728 pens, 864 rolls of tape, 1,750 file folders, 864 yellow pads and 144 boxes of 1,000 paper clips. Burnside testified that she received kickbacks of cash, a television, and a microwave oven from Mytel.

Although Burnside placed the orders with salesman Ralph Roades, the orders were not filled until Mytel confirmed the order directly. In order to contact Roades, Burnside called Mytel. All complaints about the products or service had to be made directly to Mytel. Mytel had to give prior approval before any merchandise could be returned. Invoices were sent directly from Mytel’s headquarters, and payment was made to “Mytel International”. Turbo’s checks were returned with the endorsement, “Mytel International, Inc.”

In August 1979, while Burnside was on vacation, her superior at Turbo, purchasing agent Ben Davis, noticed the arrival of a large shipment of office supplies. Davis called Mytel and told them not to do any more business with Turbo.

On September 7, 1979, Roades induced Burnside to place one more order with My-tel for office supplies totaling $14,231.52. Turbo refused to accept the shipment when it arrived. Turbo received Mytel’s invoice for the shipment on September 24th. At that point, Turbo’s president, William Ha-gen, began to investigate the situation. Burnside eventually pleaded guilty to theft.

Mytel, alleging that Turbo had breached the September 7th contract to purchase office supplies, sued Turbo on February 11, 1981. Turbo replied on March 5, 1981, but did not add its Texas Deceptive Trade Practices counterclaim until September 23, 1983. The counterclaim alleged that Mytel had engaged in an unconscionable course of conduct by overcharging Turbo on the four purchase orders placed before September 7, 1979.

At trial, the jury found that Roades acted as Mytel’s agent when he solicited the September 7, 1979 order, that Mytel had engaged in an unconscionable action or course of action both prior to September 7, 1979, and again on that date, that the fair and reasonable market value of the first four orders was $5,266.26, and that Turbo’s actual damages were $6,368.38. The trial court rendered judgment against Mytel on its breach of contract suit, and for Turbo on its Deceptive Trade Practices Act claim. The court set Turbo’s actual damages at $6,368.38, but doubled only the first $1,000 portion of those actual damages in awarding Turbo $8,368.38 plus attorney’s fees and costs of court.

By point of error number one, Mytel asserts that Turbo’s counterclaim under the Deceptive Trade Practices Act was barred by the Statute of Limitations. In this case, the Statute of Limitations is four years, under the 1977 version of the Deceptive Trade Practices Act in effect when the unconscionable course of conduct began in 1978. See La Sara Grain v. First Nat Bank of Mercedes, 673 S.W.2d 558, 565 (Tex.1984); Woods v. Littleton, 554 S.W.2d 662, 666 (Tex.1977).

A Statute of Limitations begins to run at such time as fraud is discovered or, by the exercise of reasonable diligence, might have been discovered. Courseview, Incorporated v. Phillips Petroleum Co., 312 S.W.2d 197, 205 (Tex.1957); Jim Walter Homes, Inc. v. Castillo, 616 S.W.2d 630, 633 (Tex.Civ.App.—Corpus Christi 1981, no writ); Kelly v. Dorsett, 581 S.W.2d 512, 513 (Tex.Civ.App.—Dallas 1979, writ ref’d n.r.e.). When the issue of limitation is raised by the pleadings, and evidence on the issue has been introduced, the question of whether the cause of action is barred is ordinarily one of fact for the jury. Tenneco Oil Company v. Rollans, 399 S.W.2d 217, 220 (Tex.Civ.App.—Amarillo 1965, no writ).

Here, there was evidence from Davis, the purchasing agent, that he became suspicious in August 1979. There was also evidence that the arrival of the $14,231.52 invoice from Mytel on September 24, 1979 was what sparked the investigation that led to Burnside’s confessions to the police. The jury could have found that the discovery took place in August 1979, or it could have found that the discovery took place on or after September 24, 1979. The jury, however, was not asked to determine this fact question. Where the Statute of Limitations is pleaded but no request is made to have the issue submitted to the jury, and no objection is made to the court’s charge for failure to include such an issue, the Statute of Limitations defense is waived. McMullan v. Friend, 642 S.W.2d 15, 18 (Tex.App.—El Paso 1982, no writ); Burba v. Lary, 296 S.W.2d 797, 804 (Tex.Civ.App.—Waco 1956, writ ref’d n.r. e.). Mytel pleaded the Statute of Limitations but did not request a Statute of Limitations issue and did not object to the court’s failure to include such an issue in the jury charge. Mytel has therefore waived the issue. We overrule point of error number one.

By points of error numbers four and five, Mytel urges that there is no evidence or insufficient evidence to support the jury finding that Ralph Roades acted with actual or apparent authority from My-tel International.

The sole jury question on agency was Special Issue No. 4, in which the jury was asked if Roades “acted with actual or apparent authority from MYTEL INTERNATIONAL in soliciting the purchase order of September 7, 1979.” The jury answered, “We do.” The jury was not asked if Roades acted as Mytel’s agent in soliciting the first four purchase orders, all dated before September 7, 1979, which form the basis for Turbo’s recovery under the Deceptive Trade Practices Act. However, such a finding of agency is not essential to Turbo’s cause of action.

Section 17.45(4) of the 1977 Deceptive Trade Practices Act defines a consumer as one “ ‘who seeks or acquires by purchase or lease, any goods or services.’ ” Flenniken v. Longview Bank and Trust Co., 661 S.W.2d 705, 706 (Tex.1983). Here, Turbo was sent office supplies directly from Mytel, was billed directly by Mytel, and sent payments directly to Mytel. A consumer can bring a suit under sec. 17.-50(a)(3) if it “ ‘has been adversely affected by ... any unconscionable action or course of action by any person.’ Flenniken, 661 S.W.2d at 706. Unconscionability can be defined as “ ‘an act or practice which, to a person’s detriment: ... results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration.’ ” Franks v. Associated Air Center, Inc., 663 F.2d 583, 592 (5th Cir.1981). Mytel’s conduct was unconscionable, not because Roades bribed Burnside, but because the jury found that Mytel greatly overcharged Turbo. See Miller v. Soliz, 648 S.W.2d 734, 739 (Tex.Civ.App.—Corpus Christi 1983, no writ). Privity of contract is not a requirement. Stagner v. Friendswood Development Co., Inc., 620 S.W.2d 103, 103 (Tex.1981); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 541 (Tex.1981). Prom Turbo’s point of view, there was only one transaction, the purchase of office supplies, and Mytel could be sued as one who sought to enjoy the benefits of that transaction. See Flenniken, 661 S.W.2d at 707; Knight v. Intern. Harvester Credit Corp., 627 S.W.2d 382, 389 (Tex.1982).

Since we hold that Turbo did not have to show that Roades acted as Mytel’s agent, we overrule points of error numbers four and five.

In point of error number six, Mytel asserts that there is no evidence to support the jury’s finding as to the fair and reasonable market value of the goods shipped to Turbo pursuant to purchase orders issued before September 7, 1979.

In determining a “no evidence” point, we are to consider only the evidence and inferences which tend to support the finding of the jury and disregard all evidence and inferences to the contrary. See International Armament Corporation v. King, 686 S.W.2d 595 (Tex.1985); Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 103 (Tex.1979); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If there is any evidence of probative force to support the finding of the jury, the point must be overruled and the finding upheld. In re King’s Estate, 244 S.W.2d at 661-62.

A “no evidence” point of error must and may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; (4) the evidence establishes conclusively the opposite of a vital fact. Royal Indemnity Co. v. Little Joe’s Catfish Inn, Inc., 636 S.W.2d 530, 531 (Tex.App.—San Antonio 1982, no writ); Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960).

If a “no evidence” point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant unless the interests of justice require another trial. See National Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

The jury found from the invoices and cancelled checks that Turbo paid Mytel $11,634.64 for the first four orders of office supplies. The jury determined that $2,326.93 (20% of $11,634.64) was the wholesale cost to Mytel. The jury added a 100% profit and the actual freight and handling charges as shown on the invoices to arrive at a market value of $5,266.26.

Evidence as to Mytel’s wholesale costs and “service fees” was introduced at trial in the form of testimony by Mytel’s president, Gil Michaels, about two of the purchase orders. On one, for $3,918.91, the wholesale cost was $951.08 (24%) and the service fee was $783.63 (20%). On the other, for $4,872.96, the wholesale cost was $1,084.00 (22%) and the service fee was $1,071.84 (22%). There was no testimony as to the wholesale cost or service fee on the other two invoices in question. There was no testimony as to a fair and reasonable retail price for the goods or as to the reasonable market value of the goods if purchased in bulk.

We find that there was no evidence introduced at trial from which the jury could calculate the fair and reasonable market value of the office supplies Turbo received. In view of our holding herein, we need not consider Mytel’s points of error two, three, seven, and eight.

Turbo has presented one cross-point to us on appeal. Turbo asks us to find that the trial court erred in refusing to render judgment for Turbo for treble damages. As noted above, since the course of conduct for which Turbo was awarded actual damages began before the effective date of the 1979 Deceptive Trade Practices Act amendments on August 27,1979, the 1977 version of the Deceptive Trade Practices Act applies to this case. See La Sara Grain, 673 S.W.2d at 565; Lubbock Mortg. & Inv. Co., Inc. v. Thomas, 626 S.W.2d 611, 613 (Tex.App.—El Paso 1981, no writ). Under the 1977 Deceptive Trade Practices Act, treble damages are mandatory. Pennington v. Singleton, 606 S.W.2d 682, 691 (Tex.1980); Woods, 554 S.W.2d at 671. We sustain Turbo’s cross-point.

In view of the flagrant nature of the conduct found by the jury in this cause, we find that the interest of justice requires another trial on Turbo’s counterclaim.

We reverse and remand for trial on Turbo’s counterclaim with one-half costs of court charged to the appellant and one-half costs charged to the appellee.


author: JORDAN, Justice. ASHWORTH, Justice,

text:
    Tony TYE and George W. Brock, Appellants, v. William E. APPERSON, Jr. and Wife, Sherry Apperson, Appellees.
    No. 2-84-228-CV.
    Court of Appeals of Texas, Fort Worth.
    May 8, 1985.
    Douglas & Elms, Inc. and Lee Elms and Glen D. Mangum, San Antonio, for appellants.
    Hill, Heard, Oneal, Gilstrap & Goetz and Shane Goetz and Frank M. Gilstrap, Arlington, for appellees.
    Before JORDAN, ASHWORTH and HOPKINS, JJ.
   OPINION

JORDAN, Justice.

The Appersons, appellees, filed a declaratory judgment suit asking for a judgment declaring void an option granted appellants Tye and Brock in February of 1978 to purchase certain real estate in Fort Worth, Texas. Appellees also sued to recover the reasonable rental value of the property for the time it was occupied by appellants during the pendency of the lawsuit. Appellants Tye and Brock, by a counterclaim, contend that they had properly exercised their option and seek specific performance of the option to purchase.

In a trial to the court without a jury, the judgment was rendered for appellees, holding the option agreement unenforceable and denying appellants’ specific performance. The judgment also awarded appel-lees reasonable attorney’s fees, court costs, and the sum of $19,000.00 which had been deposited into the registry of the court by appellants.

We reverse and render.

In February of 1978, and at the time of trial of this case in October of 1988, the Appersons were the owners of Lots 2, 3, 4, and 5, Block 16, Wilkes Estates, a subdivision of a portion of the J.M. Daniels Survey, City of Fort Worth, Tarrant County, Texas, known also as 5733 Oakdale Drive, Fort Worth. Tye and Brock are the principal shareholders and officers of Hercules DFW Concrete Pumping Service, Inc. (Hercules), a corporation engaged in the concrete pumping business. Under date of February 6, 1978, the Appersons as lessors and Hercules and Tony Tye, individually and as president of Hercules, entered into a lease agreement on the Appersons’ property for a period of five years, the lease expiring on or about February 5, 1983. On the same date, the Appersons and Tye and Brock individually entered into a separate agreement under which, on certain terms and conditions, Tye and Brock were granted an option to purchase the property covered by the lease.

The lease agreement provided that no improvements or alterations shall be made in or to the premises without the consent of the lessor in writing and also provided that the lessee should not make any alterations in the building, (except as therein provided), without the consent of the lessor in writing. The lessee also agreed to pay one-half of all real estate taxes and one-half of all the insurance on the demised premises during the terms of the lease as those items became due, upon notification to the lessee by the lessor.

The second paragraph of the option agreement of February 6,1978, provided as follows:

Optionee shall have the right to purchase the above described real property any time during the five year period beginning on February 6, 1978, and ending on February 5, 1983. To exercise said option, Optionee must give written notification to Optionor of Optionee’s election so to exercise said option. Said notification must be given no later than January 6, 1983. Otherwise, said option shall lapse and be null and void.

Paragraph six of the option agreement stipulated the following:

It is specifically understood and agreed that Optionees are presently the sole shareholders of HERCULES DFW CONCRETE PUMPING SERVICE, INC., a Texas corporation, and the Lessee under the terms and provisions of the Lease Agreement which is marked Exhibit B hereto. Accordingly, this Option Agreement is conditioned upon the true and full performance of all of the Lessee’s obligations under the terms and conditions of that Lease Agreement. Should Hercules DFW Concrete Pumping Service, Inc., and/or Tony Tye and/or George W. Brock default or otherwise be in violation or breach of any of the terms and conditions of that Lease Agreement, then, at Optionor’s election, this Option Agreement shall lapse and be null and void for all purposes.

At the conclusion of the bench trial, the court rendered judgment for appellees holding that the option agreement was unenforceable and denying appellants’ counterclaim for specific performance. No findings of fact or conclusions of law were filed, although they were requested. On appeal, no complaint of this failure to file findings of fact and conclusions of law is urged and any error in such failure is waived.

Where there are no findings or fact or conclusions of law filed by the trial court, this court must affirm the judgment of the trial court if it can be upheld on any legal theory that finds support in the record. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962). By their first five points of error, appellants contend that: the trial court erred in finding that strict compliance with the lease agreement by Hercules was a condition precedent to appellants’ exercise of the option; the court erred in holding that Hercules materially breached the lease agreement; appellees waived their right to insist upon strict compliance with the lease agreement by Hercules; and appellees were also equitably es-topped from alleging breaches of the lease agreement. In their sixth and seventh points of error, appellants maintain they were entitled to specific performance of the option agreement and that the judgment must be reversed because of a lack of necessary parties.

We have carefully reviewed the parties’ briefs, as well as the entire record in this case, and while we have also studiously reviewed all points of error, our decision to reverse and render judgment in this case is based on our sustaining of point of error six, and, accordingly, our discussion for the most part, will be confined to this point of error. With respect to the remaining six points of error asserted, it is our opinion that there is either no merit to those points or that, because of our disposition, discussion of such points is unnecessary. Accordingly, those points are all overruled.

By way of explanation, it should be pointed out that as previously mentioned, the lease agreement dated February 6, 1978, was between William E. Apperson, Jr. and wife, Sherry Apperson as lessors and Hercules DFW Concrete Pumping Service, Inc., as lessee. The lease agreement was signed by the Appersons and Tony Tye, individually and as president of Hercules. The option agreement, on the other hand, also signed on February 6, 1978, was between the Appersons, as owners and optionors, and Tony Tye and George W. Brock, individually, as optionees. The option agreement did refer to the lease agreement of the same date between the Appersons and Hercules and it did contain the provisions with respect to the exercising of the option and the termination of the option, above quoted as paragraphs two and six of the option agreement.

The trial court necessarily and impliedly found that certain provisions of the lease agreement between appellees and Hercules had been violated, and it also found that strict compliance with the lease agreement by Hercules was a condition precedent to appellants’ exercise of their option.

We are bound by the trial court’s findings under the evidence and agree there is ample evidence to show numerous violations of the terms of the February 6, 1978 lease between the Appersons and Hercules, but we disagree with the court’s holding that the mere occurrence of these defaults or breaches under the lease agreement, and under the terms of the option agreement, caused the option to purchase to automatically lapse and become null and void. Our reason for such disagreement may be found in the language in terms of paragraphs two and six of the February 6, 1978 option agreement, both of which are quoted earlier in this opinion. Under paragraph two of the option agreement, the optionees, Tye and Brock, had the right to exercise the option anytime between February 6, 1978 and February 5, 1983, by giving written notification to the Appersons of their election so to exercise the option. The record reflects that on December 30, 1982, Tye and Brock, through their attorney, gave written notice to the Appersons of their intention to exercise the option.

Paragraph six provides that the option agreement is conditioned upon the true and full performance of all of the lessees’ obligations under the lease and that any breach thereof by Hercules, Tye, or Brock, will cause the option agreement to lapse and be null and void. However, the lapse of the option agreement occurs only at “op-tionors’ election.” (Emphasis added.) This means to us that despite breaches or defaults by the lessee, before lessees are prevented from exercising their option, they must be advised by the optionors, the Appersons, that because of such defaults or breaches, the option agreement has lapsed. This was not done in this case until well after Tye and Brock, as optionees, on December 30, 1982, exercised their option to purchase the subject property. In fact, it was not done until January 11, 1983, by letter from appellees’ attorney to appellants.

The right to terminate the grant of the option, contained in paragraph six of the option agreement, is not self-executing. The grant of the option does not self-destruct even though the lease terms are breached; before the option lapses, the Ap-persons, the optionors, must have elected to terminate the option agreement and declare it null and void for all practical purposes.

We are bound, as was the trial court, to not only consider both the lease and option agreements together, but also to give effect to all parts of both instruments if possible. Smith v. Davis, 453 S.W.2d 340, 345 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n.r.e.). As previously stated, paragraph two granted to Tye and Brock the right to exercise the option at anytime during the five-year lease period. Paragraph six of the option agreement, as we have seen, did require “true and full performance of all of the lessees’ obligations”, providing additionally that the default or breach of any of the terms and conditions of the lease would, “at option-ors’ election,” effect a termination or lapse of the option agreement. (Emphasis added.)

There can be no question that there was ample evidence in this record of numerous violations or breaches of the lease agreement by Hercules. Appellees testified that though they observed many of the breaches committed by Hercules and/or Tye and Brock, and notified Hercules and/or Tye and Brock of such violations, nevertheless, there were some violations which went unnoticed by them throughout the term of the lease. It was not until October of 1982, just a few months before the lease was to expire in February of 1983, that the written notice of violations was sent to Hercules. This letter concerned the installation on the leased property by Hercules of a mobile home for use as a residence. After complaint was made by the Appersons of this installation, the mobile home was removed within ten days. However, even after the mobile home was removed, a clothesline, a Butane tank, electrical utility service, and other utility lines and connections, plus a concrete sidewalk or walkway, remained and were obvious to the Appersons or to anyone else. Moreover, there were other open and obvious alterations, additions, or deletions from the leased property, all of which were violations or breaches of the lease. It is obvious from this record that appellees saw and observed many of these violations for a long period of time before any complaint was made or before they said anything to appellants about the option agreement lapsing because of these violations. We think they were too late in declaring the option agreement lapsed, since that was not done until well after the option agreement was properly exercised under the terms of the agreement.

An option agreement, such as the one here, is a contract between the parties; however, until such time as the option is exercised in accordance with the contract, the contract is said to be unilateral in nature. Then, when the option is exercised in accordance with the terms of the contract, it becomes a binding bilateral contract. C & W Manhattan Associates v. Lively, 588 S.W.2d 671, 673 (Tex.Civ.App.—Beaumont 1979, no writ); McWhirter v. Morrow, 203 S.W.2d 317, 319 (Tex.Civ.App.—Amarillo 1947, no writ). Until the option to purchase the Apperson property in this case was exercised by appellants in their attorney’s letter of December 30, 1982, heretofore referred to, there was no legal binding contract of sale between the Appersons and appellants Tye and Brock. But when the appellants, the optionees, accepted the offer of appellees to sell before January 6, 1983, and in accordance with the terms specified in the option, there then existed a contract binding on both parties. See McWhirter, 203 S.W.2d at 319; see also, Hott v. Pearcy/Christon, Inc., 663 S.W.2d 851, 854 (Tex.App.—Dallas 1983, writ ref’d n.r.e.); Kenver Corporation v. Robinson, 492 S.W.2d 317, 319 (Tex.Civ.App.—Beaumont 1973, writ ref’d n.r.e.); Vratis v. Baxter, 315 S.W.2d 331, 333 (Tex.Civ.App.—Beaumont 1958, writ ref’d n.r.e.). Appellees’ rejection of the option by their letter of January 11, 1983, came too late and was ineffective. At this point a binding contract for the sale of the property by appellees existed. See Humble Oil & Refining Co. v. Westside Invest. Corp., 428 S.W.2d 92, 94 (Tex.1968); Sinclair Refining Co. v. Allbritton, 147 Tex. 468, 218 S.W.2d 185, 188 (1949); Smith v. Hues, 540 S.W.2d 485, 490 (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.).

We sustain appellants’ point of error six and hold that they were entitled to specific performance of the option agreement. Accordingly, the judgment of the trial court is reversed and rendered. Specific performance of the sale of the property from appel-lees to appellants in accordance with the option agreement of February 6, 1978 is hereby ordered. The sum of $19,000.00, paid into the registry of the court as rental, with interest, is hereby ordered paid to appellees to be credited to appellants on their purchase of the subject property from appellees.

ASHWORTH, Justice,

dissenting.

I respectfully dissent.

The majority opinion correctly states all principles to be observed in construing the two agreements in question and in reviewing the judgment of the trial court. However, the majority imposes a duty on the part of the optionor which is not specified by either agreement. As stated in the opinion, there was no legal binding contract of sale between the Appersons and appellants until the optionees accepted the offer to sell in accordance with the terms specified in the option and that such acceptance brought in existence a binding contract.

There was no duty imposed on the op-tionors under either agreement to advise the optionees that the option had terminated because of a default in the lease agreement. There is no duty to perform a useless act. Why should optionor be required to give notice of termination of the option when there is no way of knowing there will be an attempt to exercise the option? To carry the majority opinion to its logical conclusion, lessee could default after a tenancy of one year, be evicted from the property, and still have a right for four years to purchase the property because optionor gave no notice of termination of the option.

The judgment of the trial court is supported by the evidence, correctly applies the law, and should be affirmed.


author: HOPKINS, Justice.

text:
    Lin Nhun Char KHAM, Appellant, v. The STATE of Texas, State.
    Nos. 2-84-116-CR, 2-84-117-CR.
    Court of Appeals of Texas, Fort Worth.
    May 8, 1985.

      Lollar & Phillips and Abe Factor, Fort Worth, for appellant.
    Tim Curry, Dist. Atty. and Mary Thornton Taylor, Asst. Dist. Atty., Fort Worth, for State.
    Before FENDER, C.J., and HILL and HOPKINS, JJ.
   OPINION

HOPKINS, Justice.

The appellant, Lin Nhun Char Kham, was charged by two separate indictments. In each indictment, count one charged the offense of attempted capital murder and count two charged the offense of aggravated assault with a deadly weapon. Appellant entered his pleas to the jury of not guilty to both counts of attempted capital murder and guilty to both counts of aggravated assault with a deadly weapon. The jury found appellant guilty of attempted capital murder under each indictment and punishment was assessed at 65 years in the Texas Department of Corrections in each case, the sentences to run concurrently.

We affirm.

In ground of error one, appellant contends the court committed reversible error in not including a “not guilty” verdict form as to the offense of attempted capital murder with the court’s charge. No objection to the omission was made at the time of trial, therefore determination must be made whether such omission constituted fundamental error.

The jury was charged as follows:

Now, bearing in mind the foregoing instructions, if you believe beyond a reasonable doubt ... then you will find the defendant guilty of the offense of attempted capital murder as charged in Count One of the indictment; but if you do not so believe or if you have a reasonable doubt thereof, you will acquit the defendant of the offense of attempted capital murder as charged in Count One of the indictment, and you are then directed to find the defendant guilty of the offense of aggravated assault with a deadly weapon as charged in Count Two of the indictment, the defendant having pleaded guilty to such Count ...

Appellant complains that in order for the jury to have found him not guilty of the offense of attempted capital murder it would have had to create its own verdict form. We disagree.

We hold the trial court’s instruction in this case was sufficient to advise the jury that if they determined the appellant was not guilty of the offense of attempted capital murder, or if they had a reasonable doubt thereof, they were to sign the second form finding him guilty of aggravated assault with a deadly weapon.

However, if there was error in omitting a “not guilty” verdict form, we do not believe that it was fundamental error. In Berghahn v. State, 683 S.W.2d 697 (Tex.Crim.App.1984), the Court held that omission of a “not guilty” verdict form was not fundamental error, even where the defendant had not pled guilty to the lesser included offenses. If that was not fundamental error, then it certainly was not fundamental error to omit a “not guilty” verdict form where the appellant pled guilty to the lesser offenses. In essence, the directed verdict of guilty form on the lesser included offenses constituted a “not guilty” form for the greater offense. We hold that any error which may have existed was not so egregious as to deny appellant a fair and impartial trial and did not constitute fundamental error. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (opinion on rehearing).

Appellant’s second ground of error alleges that the trial court erred in refusing to proceed directly to sentencing under TEX. CODE CRIM.PROC.ANN. art. 26.14 (Vernon 1966) after appellant pled guilty to the charges of aggravated assault with a deadly weapon, which were lesser included offenses of attempted capital murder. Appellant argues that the State, by accepting the guilty pleas on the lesser included offenses, elected to forego prosecution on the greater offenses. Appellant reasons that the acceptance of guilty pleas constituted convictions which caused the double jeopardy provisions of the U.S. and Texas constitutions to attach and, therefore, bar subsequent prosecution for the greater offense. We disagree.

A recent Supreme Court interpretation of the double jeopardy clause established that the trial court’s acceptance of a guilty plea to a lesser included offense does not bar prosecution for the greater offense. Ohio v. Johnson, — U.S. —, —, 104 S.Ct. 2536, 2542, 81 L.Ed.2d 425, 435 (1984). In that case, the State objected to the trial court's acceptance of the guilty plea, but was overruled. The Supreme Court, Justice Rehnquist, wrote:

No interest of respondent protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here respondent offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against respondent without a trial. Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an ‘implied acquittal’ which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses....

Id.

The case at bar presents a slightly different problem in that the State did not object to the acceptance of the guilty pleas to the lesser included offenses. This raises the question of whether the State elected to forego prosecution of the greater offenses.

Essentially, appellant tried to impose a plea bargain on the State by pleading guilty to the lesser included offenses and then requesting immediate sentencing which he apparently hoped would bar subsequent prosecution for the greater offense. The trial court, however, refused immediate sentencing and proceeded to trial on the greater offense. Appellant now claims that the double jeopardy clause barred subsequent prosecution of the greater offense, even without sentencing on the lesser, and that he was deprived of the benefit of his guilty plea.

Since a plea bargain was never reached between the State and appellant, we believe that the State was not obligated to make an election and the appellant’s plea of guilty was made at his own expense. “It is well settled that the right of election belongs to the State and not the defendant, and the State is entitled to submit the more serious offense to the jury.” Reseburg v. State, 656 S.W.2d 84, 87 (Tex.App.—Tyler 1983, no pet.), cert. denied, — U.S. —, 104 S.Ct. 431, 78 L.Ed.2d 364 (1983). Of course, appellant could have withdrawn his guilty plea any time prior to adjudication of the offense, long after the State made it known that it intended to pursue the greater offense. Therefore, there could have been no implied election by way of fraud or deception.

We hold that the State did not elect to forego prosecution of the charges of attempted capital murder by acquiescing in appellant’s guilty plea to the lesser included offenses of aggravated assault with a deadly weapon since there was no proof that a plea bargain had been reached. Appellant’s second ground of error is overruled.

In appellant’s ground of error three, the contention is made that the court’s instruction for the jury to find appellant guilty of the lesser included offense constituted an impermissible comment on the weight of the evidence. This objection was not made at the time of trial; the objection having been, “there is no provision in the Code of Criminal Procedure for any sort of directed verdict in this fashion in a criminal case.” A specific objection raised on appeal will not be considered if it varies from the objection made at trial. Euziere v. State, 648 S.W.2d 700 (Tex.Crim.App.1983) (en banc); Hodge v. State, 631 S.W.2d 754 (Tex.Crim.App.1982).

Even had appellant preserved error, where an accused pleads guilty to a jury, an instruction to find the accused guilty is not an impermissible comment on the weight of the evidence. Fairfield v. State, 610 S.W.2d 771 (Tex.Crim.App.1981). We hold that the trial court did not err in directing the jury to convict the appellant of the lesser included offense to which he had pled guilty in the event that they found him not guilty of the greater offense. Appellant’s third ground of error is overruled.

Affirmed.

      . It is not clear whether immediate sentencing would have in fact barred subsequent prosecution for the greater offense. In dicta. Justice Rehnquist implied that the double jeopardy clause of the U.S. Constitution would not bar conviction of both a primary and lesser included offense with separate punishments for each. He stated that the double jeopardy protection against multiple punishments for the same offense merely requires that one who is convicted, sentenced, retried, and reconvicted must be given credit for time served. He declined to make this the basis of his decision, however, because the Ohio Supreme Court had already ruled that multiple sentences for primary and lesser included offenses would be a violation of Ohio state law. Ohio v. Johnson, — U.S. — at — - —, 104 S.Ct. at 2540-41, 81 L.Ed.2d at 432-33. We find no comparable decision under Texas law. However, any such decision would not be determinative of this case because the appellant was never sentenced for the lesser included offenses.


text:
    Robert HOOTEN, Appellant, v. The STATE of Texas, State.
    No. 2-83-442-CR.
    Court of Appeals of Texas, Fort Worth.
    May 8, 1985.

      Philips, White, Davidge, Griffin, Shelton, Eames, Wood & Duncan, and M.P. Duncan III, Denton, for appellant.
    Jerry Cobb, Dist. Atty., and Fred Marsh, Asst. Dist. Atty., Denton, for appellee.
    Before FENDER, C.J., and BURDOCK, J.
   OPINION

FENDER, Chief Justice.

Appellant was convicted of murder by a jury and sentenced by the jury to 50 years in the Texas Department of Corrections. Appellant raises four grounds of error.

We affirm.

The facts in this case are not in dispute. Appellant drove his car to the residence of Bobby Zettler. He got out and approached the residence at which time he shot the victim. Appellant was then wrestled down by Bobby Zettler and by other neighbors.

Appellant pled not guilty and rested without calling any witnesses. At the punishment phase of the trial appellant called ten lay witnesses as well as one expert to testify on his behalf.

In his first three grounds of error, appellant argues that a mistrial should have been granted because the prosecutor asked improper questions of three of appellant’s witnesses during the punishment phase of the trial. Appellant complains of the following three questions which were posed during cross-examination of, respectively, appellant’s son, his aunt, and a friend and business acquaintance of appellant:

“Have you ever observed any acts or violence by your father prior to this act?”
“Did you hear Bill’s [appellant’s brother] testimony concerning the acts of violence committed against him by this defendant?”
“[W]ould your opinion about him associating with your grandkids change any if you knew that after he committed this murder that he threatened to kill the entire family?”

After each of these three questions, appellant’s counsel objected, and each objection was sustained by the trial court. After the objections to the first and second questions had been sustained, the trial court offered to instruct the jury to disregard the questions, but appellant’s counsel refused. Appellant's counsel did ask for a mistrial, but this request was denied by the trial court. After appellant’s counsel objected to the third question, the trial court sustained the objection and, on its own initiative, instructed the jury to disregard.

While we agree with appellant that the three questions constituted improper attempts to impeach the three witnesses, we nonetheless, do not believe that the trial court erred in refusing to grant a mistrial. Appellant refused the offers of the trial court to instruct the jury to disregard the first two questions. Since an instruction to disregard will usually cure any error generated by an improper question, the failure to obtain such an instruction normally constitutes a waiver of any error. See Brooks v. State, 642 S.W.2d 791, 798 (Tex.Crim.App.1982). Appellant acknowledges this rule, but argues that his motions for a mistrial alone, lodged after the first two questions, were sufficient to preserve error. We disagree. Given the strong curative power of an instruction to disregard, judicial economy demands that a party resort to such a remedy before he be allowed to move for a mistrial.

In the interest of justice, though, we will assume that appellant did properly preserve error. If such had been the case, appellant would only have been entitled to a mistrial if the improper questions were clearly calculated to inflame the minds of the jurors and were of such a character as to suggest the impossibility of withdrawing the impression produced. See Crawford v. State, 603 S.W.2d 874, 876 (Tex.Crim.App.1980).

Based on this stringent standard, we do not find that any of the three questions generated enough prejudice to warrant a mistrial. Furthermore, the third question, which is perhaps the most damaging to appellant, refers to threats about which there had been testimony at the guilt-innocence phase. Since a jury is entitled to consider during the punishment phase of the trial evidence introduced at the guilt-innocence phase, no reversible error is shown. Appellant’s first three grounds of error are overruled.

In his fourth ground of error, appellant contends the trial court erred in permitting the State’s rebuttal witness to testify during the punishment phase about threats made by appellant to third persons immediately after he shot the victim. The rebuttal witness stated that she heard appellant threaten, as he was being wrestled down by Bobby Zettler, to kill Bobby and his wife. Appellant argues that this testimony constituted an impermissible attempt on the part of the State to aggravate punishment because it was probative of an extraneous offense, and not of appellant’s prior criminal record, his general reputation or his character. See TEX.CODE CRIM.PROC.ANN. art. 37.07 sec. 3(a) (Vernon 1981).

We disagree. The threats made by appellant immediately after the shooting were relevant to the issue of punishment because they were part of the res gestae of the offense. In Hoffert v. State, 623 S.W.2d 141 (Tex.Crim.App.1981), the defendants pled guilty to delivery of metham-phetamines. The issue on appeal was whether it was proper for the prosecutor to introduce, for purposes of the punishment phase alone, evidence that the defendants had been smoking marihuana while they delivered the controlled substance. The Court said:

“The material issue during the punishment phase is, obviously, what punishment to assess; this Court has held that the circumstances surrounding the instant offense [offer to sell marihuana] are therefore material in order for the jury to intelligently perform this function.”

Id. at 145. Under this principle, the testimony of the State’s rebuttal witness was properly admitted.

Appellant attempts to distinguish Hoffert from the case at bar on the ground that it involved a situation in which the defendant pled guilty, and not not guilty. Appellant urges that the State is entitled to greater latitude for getting evidence before a jury following a plea of guilty than it is entitled to following a plea of not guilty. We disagree. That a defendant’s guilt in one case is litigated and in another stipulated is immaterial to the question of what evidence is relevant during the punishment phase of a trial. Appellant’s fourth ground of error is overruled.

The judgment below is affirmed.


text:
    Carol D. McFADDEN a/k/a Carol Weakley, Appellant, v. FARMERS AND MERCHANTS BANK OF LONG BEACH, A California Banking Corporation, Appellee.
    No. 2-85-008-CV.
    Court of Appeals of Texas, Fort Worth.
    May 9, 1985.

      Dixon & Neuville, P.C., and Brian H. Clapp, Granbury, for appellant.
    Seilheimer & Reid, P.C., and Edwin J. Seilheimer, Granbury, for appellee.
    Before FENDER, C.J., and ASHWORTH and JOE SPURLOCK, II, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from an order overruling appellant’s motion to quash a writ of execution. We affirm the action of the trial court.

Appellee, Farmers and Merchants Bank of Long Beach, filed suit as judgment creditor in the district court of Hood County to enforce a judgment by default entered against the appellant, Carol McFadden (a/k/a Carol Weakley), in the Municipal Court of the Long Beach Judicial District, California. Appellee alleged in its pleadings that the California judgment was rendered by a court of general jurisdiction after due service of citation upon appellant in compliance with California law and was thus entitled to full faith and credit in Texas. On April 29,1981, the trial court in the instant case rendered a default judgment against appellant, finding that appellant had been properly served in Texas, that the allegations in appellee’s petition were admitted, that the California default judgment was a final valid and subsisting judgment and that appellant was thereby indebted to appellee for $2,884.96 with interest thereon at the rate of nine percent (9%) per annum until paid, plus court costs. Appellant did not challenge this judgment in any way until she filed her motion to quash execution October 23, 1984.

In one point of error, appellant argues the trial court erred in overruling her motion to quash because the underlying California judgment is void upon its face. Appellant has chosen to collaterally attack the validity of the California judgment and to succeed she must show the judgment eompalined of is absolutely void, not merely voidable. “If the court has jurisdiction, a judgment entered by default is as conclusive against collateral attack as any other form of judgment.” Carter v. G. & L. Tool Company of Utah, Inc., 428 S.W.2d 677, 682 (Tex.Civ.App.—San Antonio 1968, no writ). A judgment may be void for one of the following reasons only: 1) want of subject matter jurisdiction, or 2) want of jurisdiction over the parties. Id. Appellant argues the judgment is void because it is not signed by a judge. In support of her contention that the California judgment is void, appellant relies for authority on Interamerican Lambs Wool v. Doxsee Food, 642 S.W.2d 823 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.) and Mathis v. Wachovia Bank & Trust Co., 583 S.W.2d 800 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.). An examination of those cases reveals that they were direct attacks upon voidable foreign default judgments which recited that they were heard by “the court,” but failed to have the signature of the trial judge anywhere upon the face of the judgment. In the case at bar, appellant is collaterally attacking the California judgment. Failure to bear the signature of the judge of the trial court does not, according to appellant’s authorities, render a judgment void, merely voidable.

Additionally, appellant asserts that we must presume the Municipal Court of California is equivalent to a Texas Municipal Court and therefore without jurisdiction over the subject matter. The record before us is sketchy at best, with no statement of facts, findings of fact and conclusions of law. The transcript, which appears to contain less than the complete contents of the court’s file, does not include a motion under TEX.R.CIV.P. 184a, for the court to take judicial notice of California law. By means of the pleading of both parties, the trial court had before it the question of whether the California judgment was a valid judgment entitled to full faith and credit. The trial court obviously ruled in favor of appellee that the California judgment was valid. It is the burden of the appellant to bring forward a sufficient record to show the error committed by the trial court in overruling the motion to quash. Where the record contains no statement of facts or findings of fact and conclusions of law, every presumption must be indulged in favor of the trial court’s judgment. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (1945). The trial court presumably found the California Municipal Court had jurisdiction over the subject matter of ap-pellee’s suit. Additionally, the courts of this State have long held that the presumption that foreign law is the same as Texas law cannot be used to overthrow the presumed validity of the judgment of a sister state. Dowden v. Fischer, 338 S.W.2d 534, 537 (Tex.Civ.App.—Waco 1960, no writ); Roberts v. Hodges, 401 S.W.2d 332, 334 (Tex.Civ.App.—Amarillo, 1966, writ ref'd n.r.e.).

The record before us does not reveal any failure of jurisdiction of the California court such as would render the judgment void. The action of the trial court in overruling the motion to quash writ of execution is affirmed.


author: ASHWORTH, Justice.

text:
    Steven CHANDLER, Appellant, v. The STATE of Texas, State.
    No. 2-84-249-CR.
    Court of Appeals of Texas, Fort Worth.
    May 9, 1985.

      Hal Jackson, Denton, for appellant.
    Fred' Marsh, Asst. Dist. Atty., Denton, for the State.
    Before ASHWORTH and JOE SPUR-LOCK, II, JJ., and W.A. HUGHES, Jr., J. (Retired) (Sitting by Designation).
   OPINION

ASHWORTH, Justice.

A jury found appellant guilty of involuntary manslaughter and assessed his punishment at ten years confinement and a fine of $5,000.00. TEX. PENAL CODE ANN. sec. 19.05 (Vernon 1974). Appellant alleges improper jury argument in his first two grounds of error and in his third ground of error alleges that it is improper to allow a jury to find that an automobile is a deadly weapon in the commission of the offense of involuntary manslaughter.

Judgment affirmed.

On the afternoon of December 16, 1983, appellant, Richard Middleton, and James David Erwin, were visiting and drinking at Erwin’s apartment. About mid-afternoon appellant and Middleton drove to a nearby Laundromat and appellant took two cases of beer from a Coors truck which was parked in the area. They then returned to Erwin’s apartment. The driver of the Coors truck approached them while they were in Middleton’s pickup at Erwin’s apartment. The Coors driver asked if they had taken beer from his truck and they denied doing so. The Coors driver then left and the trio decided to follow the Coors truck since they resented being accused of stealing beer from the truck.

They pursued the truck with Middleton driving, appellant sitting in the middle of the pickup and Erwin on the right side. As they were proceeding, a jogger was jogging on the right side of the road. Appellant stated, “Let’s get him.” Appellant grabbed the steering wheel and steered the pickup truck to the right side of the road where it collided with the jogger, causing his death. There was testimony that on prior occasions that same day, appellant had also grabbed the steering wheel attempting to direct the movement of the pickup. Middleton testified that he applied the brakes of the pickup and attempted to steer the pickup away from the jogger but was unable to do so.

During his closing argument, the prosecutor made the following statement:

You see, you can judge this Defendant by his actions, and what his state of mind was when he started after the beer truck driver. You see, that shows you what kind the state of mind this Defendant here has. That shows you what his mental attitude was. He didn’t care who he found, it could have been you, I, or any member of this audience walking down that street.

The statement was objected to by appellant’s attorney, the objection was sustained and the jury instructed to disregard the reference to the jury. Appellant’s motion for a mistrial was denied. The statement of the prosecutor is the subject of appellant’s first ground of error.

The purpose of closing argument is to facilitate the jury in properly analyzing the evidence presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted in evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App.1980). To be permissible, jury argument must fall within one of the following four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; (4) plea for law enforcement. Darden v. State, 629 S.W.2d 46, 52 (Tex.Crim.App.1982); Alejandro v. State, 493 S.W.2d 230, 231-32 (Tex.Crim.App.1973).

When an argument exceeds the permissible bounds of the above areas, such will not constitute reversible error unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused into the trial proceeding. Mathews v. State, 635 S.W.2d 532, 539 (Tex.Crim.App.1982); Todd v. State, 598 S.W.2d 286, 296 (Tex.Crim.App.1980).

The test to determine whether improper jury argument is harmless error is not whether a conviction could have been had without the improper argument, but whether there is a reasonable possibility that the argument complained of might have contributed to the conviction or the punishment assessed. Garrett v. State, 632 S.W.2d 350, 353-54 (Tex.Crim.App.1982). In making this determination, we must review the evidence at the guilt-innocence stage as well as that adduced at the punishment phase of the trial. See id.

It is improper in argument for a prosecutor to ask members of the jury to place themselves in the shoes of the victim. United States v. Cook, 592 F.2d 877 (5th Cir.1979), cert. denied, 442 U.S. 921, 99 S.Ct. 2847, 61 L.Ed.2d 289 (1979). However, it is also true that any harm from an improper jury argument by a prosecutor is cured when an objection to such argument is sustained and the jury instructed to disregard the statement unless the remarks are so inflammatory that their prejudicial effect cannot reasonably be removed by such an admonition. Thomas v. State, 578 S.W.2d 691, 695 (Tex.Crim.App.1979).

We hold the argument objected to was improper, however, we also hold that the instruction by the court to the jury to disregard such statement had the effect of curing such error. The remark was not so inflammatory that it could not be cured by the admonition of the court. Appellant’s first ground of error is overruled.

Addressing appellant’s second ground of error, during the punishment phase of the case, the following occurred:

Now, you do what you want to with this case, but when you go back there and you come out with your verdict, I want you to be able to say to Mr. Robertson, and to every other citizen of Denton County, Texas—
MR. JACKSON [Defendant’s Attorney]: Objection, Your Honor, it’s not ethical and inadmissible to point to one of the family and ask them to do something like that. And — I mean, in the audience. It’s not proper and it’s bad argument.
MR. MARSH [State’s Attorney]: I will withdraw the argument, Your Honor.
MR. JACKSON: Judge, we ask you to instruct the jury to disregard it.
THE COURT: I’ll instruct the jury to disregard.
MR. JACKSON: And then we further move for a mistrial.
THE COURT: Denied.

John T. Robertson, the father of the deceased jogger, testified for the State during the trial and apparently was in the courtroom during the argument in question. We hold the argument objected to was not permissible under any of the four areas of permissible argument set forth above. It was a plea to the passion of the members of the jury and was not a plea for law enforcement, and was improper. However, applying the principles stated above which apply to rulings of the court on objections and instructions to the jury to disregard improper argument, and looking at the record as a whole, we find that the error presented by such statement was cured by the ruling of the court and instructions to the jury to disregard the same. Appellant’s second ground of error is overruled.

Appellant’s third ground of error contends the trial court committed reversible error in submitting an issue to the jury in the charge on punishment which allowed the jury to find that appellant used a deadly weapon in the commission of the offense, because the jury’s verdict of involuntary manslaughter negated such a finding.

TEX.CODE CRIM.PROC.ANN. art. 42.-12, sec. 3f(a)(2) (Vernon Supp.1985) provides in effect that probation will be denied if it is shown that a defendant has used or exhibited a deadly weapon as defined in TEX.PENAL CODE ANN. sec. 1.07(a)(ll) (Vernon 1974) during the commission of a felony offense or during immediate flight therefrom. TEX.PENAL CODE ANN. sec. 1.07(a)(ll)(B) (Vernon 1974) states in effect that a deadly weapon is anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Appellant’s argument is that since he was found guilty of recklessly causing bodily injury there was no intent on his part to cause harm or injury to any person, and therefore, the issue of deadly weapon does not apply after a jury finding of involuntary manslaughter. An automobile can be a deadly weapon depending upon the manner of its use or intended use. Hubbard v. State, 579 S.W.2d 930 (Tex.Crim.App.1979); Parrish v. State, 647 S.W.2d 8, 10-11 (Tex.App.—Houston [14th Dist.] 1982). Involuntary manslaughter is a felony offense; if the Legislature had intended to exempt such an offense from the provisions of art. 42.12 pertaining to probation, we must presume that they would have expressly provided for such exception. Appellant’s third ground of error is overruled.

Judgment affirmed.


author: JORDAN, Justice.

text:
    MOTHER AND UNBORN BABY CARE OF NORTH TEXAS, INC., Appellant, v. Jane DOE, et al., Appellees.
    No. 2-85-094-CV.
    Court of Appeals of Texas, Fort Worth.
    May 9, 1985.

      Gandy, Michener, Swindle, et al., Shelby Sharpe, Cantey, Hanger, Gooch, Munn & Collins, and Richard L. Griffith, Fort Worth, for appellant.
    B.C. Cornish, Art Brender, James D. Neel, Fort Worth, for appellees.
    Before JORDAN, ASHWORTH and HOPKINS, JJ.
   OPINION

JORDAN, Justice.

On April 11, 1985, the trial court granted a temporary injunction prohibiting appellant from advertising in the Yellow Pages of Southwestern Bell Telephone Book under the headings of “Clinics-Medical” or “Abortion Information & Services,” and from representing to any inquirer by commission, omission, or inference, that it funds abortions or that it performs abortions.

On motion of appellant the appeal was accelerated by this court because of exigencies relating to the time of publication of the questioned advertisements.

The appeal is on four points of error.

We reverse and remand.

Appellees are three women, still of childbearing age, who brought this suit against appellant for both monetary damages and for injunctive relief, based primarily on fraud, deceptive practices, and invasion of privacy. All three appellees, who used pseudonyms in filing the suit, were pregnant and unmarried women, who consulted the Yellow Pages of the telephone book, seeking the services of someone who would perform an abortion for them. Each of them testified that appellant is listed as “Problem Pregnancy Center” in the phone book under the headings of “Clinics-Medical” and “Abortion Information & Services,” and that they each called the number listed in the phone book for information concerning abortions. Each of them then went to appellant’s place of business at 1412 Ballinger in Fort Worth for the purpose of having an abortion. On the side of the building is a sign reading “Free Pregnancy Test and Problem Pregnancy Center.”

Each of the three women testified that they believed appellant to be a medical clinic that offered pregnancy testing and abortion services. All of them, at different times, in November of 1984, went to appellant’s facility, expecting to obtain an abortion. However, according to their testimony, all of them were given a urine test and subjected to questions of a personal and intimate nature about their marital status, use of contraceptives, previous pregnancies and previous abortions, if any. Each of the appellees were then shown an anti-abortion film and were lectured on the dangers and evils of abortion.

They testified that they “feared” or they “thought” it was possible that they could have future contact with appellant’s facility if the same ads were run in the future in the Yellow Pages. They did admit that they would not go back to the same location on Ballinger Street.

All of the appellees also admitted that they did not know the nature of the advertisement or advertisements appellant was planning on running in the next edition of the Yellow Pages in the phone book, or what the headings on those ads would be. There was no evidence whatever on these matters. The only evidence concerning future ads in the Yellow Pages was that of Charles J. Pelletier, II, appellant’s president, who said he intended to advertise in the next edition of the Yellow Pages.

Appellant’s first point of error is that the trial court erred in granting the temporary injunction since there was no evidence that appellees were threatened with any injury, and thus the granting of the temporary injunction was an abuse of discretion. We agree and sustain this point of error.

A trial court has broad discretion in determining whether to issue a temporary injunction to preserve the rights of the parties pending final trial on the merits. When this discretion is exercised and a temporary injunction granted, the trial court’s order should not be disturbed on appeal unless the record discloses a clear abuse of discretion. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952).

On the other hand, it is equally well settled that a temporary injunction will be dissolved if it is based upon an erroneous application of the law to the facts. Dallas General Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879 (1956); Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, 723 (1935). The law is also well established that a trial court abuses its discretion in granting a temporary injunction unless it is clearly established by the facts that one seeking such relief is threatened with an actual irreparable injury if the injunction is not granted. Dallas General Drivers, 295 S.W.2d at 879. Moreover, “an injunction will not lie to prevent an alleged threatened act, the commission of which is speculative and the injury from which is purely conjectural.” Haden Employees’ Ass’n v. Lovett, 122 S.W.2d 230, 232 (Tex.Civ.App.—Galveston 1938, writ ref'd); see also Dallas General Drivers, 295 S.W.2d at 879.

We hold that under the facts in this record, these propositions of law compel a holding that the trial court abused its discretion in granting the temporary injunction. It must be remembered that all of the appellees’ contact with appellant ended in November, or at least December, of 1984. None of these appellees had been in contact personally since their separate visits sometime in November of 1984. There was testimony of a phone call from Problem Pregnancy Center to one or more of appellees after November, but those phone calls ended and there was no other contact.

Jane Doe, when asked if she feared future contact from Problem Pregnancy Center, said, “Yes, in a way I do.” Elizabeth Collins said future contact by appellant was possible. Jane Ashley simply said she feared future contact. They all testified that they were still capable of becoming pregnant again and that if appellant was not enjoined from advertising under the headings, “Abortion Information & Services” and “Clinics-Medical” in the Yellow Pages, they might end up again in appellant’s clinic.

The testimony of “fear”, “apprehension”, and “possibilities” is not sufficient to establish any injury, let alone “irreparable” injury. Frey v. DeCordova Bend Estates Owners Ass’n, 647 S.W.2d 246, 248 (Tex.1983). “Moreover, fear or apprehension of the possibility of injury alone is not a basis for injunctive relief.” Id. This evidence falls short of establishing a threat to appellees from the current advertisements of appellant in the Yellow Pages. Appellant’s first point of error is sustained.

In points of error two and three, appellant contends that the granting of the temporary injunction was erroneous because instead of maintaining the status quo, it changed it, and because it constituted a prior restraint of freedom of speech and freedom of press. We agree that the temporary injunction changed the status quo because it actually granted the relief sought by appellees in the trial on the merits. It is agreed that May 10, 1985 is the deadline for an ad to be pulled from the next edition of the Yellow Pages, so the temporary injunction is actually tantamount to a permanent injunction. Moreover, there is no evidence in this record which establishes what appellant proposes to run in the next edition of the Yellow Pages.

At no time was appellant or anyone else asked about the contents or the headings of appellant’s ad or ads in the upcoming edition of the Yellow Pages. There was also an absence of proof as to who determines the headings and the ads to appear under those headings. We sustain appellant’s second point of error.

We pretermit discussion of point of error three because a ruling on this point is unnecessary in view of our dissolution of the temporary injunction.

Point of error four, complaining of the vagueness and overbreadth of the injunction, is overruled.

This opinion is not to be construed or considered in any manner as approval or sanction of appellant’s camouflage tactics evidenced by the record in this case. There is no question that appellant’s employees purposefully attracted pregnant women to their facility by disseminating information which could lead these women to believe that abortions were available there. We can well understand the umbrage taken by these appellees and others, but that cannot change our opinion that under the law and the facts of this case, for the reasons stated, appellees have no standing to temporarily enjoin appellant.

Reversed and remanded.


text:
    Barney WEAKLEY, Appellant, v. CHANDLERS FURNITURE CO., INC., Appellee.
    No. 2-85-011-CV.
    Court of Appeals of Texas, Fort Worth.
    May 9, 1985.

      Dixon & Neuville, P.C., and Brian H. Clapp, Granbury, for appellant.
    Seilheimer & Reid, P.C., and Edwin J. Seilheimer, Granbury, for appellee.
    Before FENDER, C.J., and ASHWORTH and JOE SPURLOCK II, JJ.
   OPINION

FENDER, Chief Justice.

This is an appeal from an order overruling appellant’s motion to quash a writ of execution. We affirm the action of the trial court.

Appellee, Chandlers Furniture Co., Inc., as the judgment creditor, filed suit in the district court of Hood County to enforce a judgment by default entered against the appellant, Barney Weakley, in the Municipal Court of Central Orange County, California. Appellee filed its judgment in accordance with Uniform Enforcement of Foreign Judgments Act, art. 2328b-5 (Vernon Supp.1985). On April 3, 1984, the court entered an order domesticating the foreign judgment. Appellant did not appeal entry of that order. Over six months passed before appellant challenged the acceptance in Texas of the California judgment by means of his motion to quash writ of execution.

In one point of error, appellant argues the trial court erred in overruling his motion to quash writ of execution because the underlying California judgment is void upon its face. Appellant has chosen to collaterally attack the validity of the California judgment and to succeed he must show the judgment complained of is absolutely void, not merely voidable. “If the court has jurisdiction, a judgment entered by default is as conclusive against collateral attack as any other form of judgment.” Carter v. G. & L. Tool Company of Utah, Inc., 428 S.W.2d 677, 682 (Tex.Civ.App.—San Antonio 1968, no writ). A judgment may be void only for one of the following reasons: 1) want of subject matter jurisdiction, or 2) want of jurisdiction over the parties. Id. Appellant complains the judgment is void because it is not signed by a judge.

Appellant relies for authority on Interamerican Lambs Wool v. Doxsee Food 642 S.W.2d 823 (Tex.App.—Fort Worth 1982, writ ref'd n.r.e.) and Mathis v. Wachovia Bank & Trust Co., 583 S.W.2d 800 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref'd n.r.e.) for his contention the California judgment is void. An examination of those cases reveals that they were direct attacks upon voidable foreign default judgments which recited that they were heard by “the court”, but failed to have the signature of the trial judge anywhere upon the face of the judgment. In the case at bar, appellant is collaterally attacking the California judgment. Failure to bear the signature of the judge of the trial court does not, according to appellant’s authorities, render a judgment void, only voidable.

Additionally, appellant asserts that we must presume the Municipal Court of California is equivalent to a Texas Municipal court and therefore without jurisdiction over the subject matter. The record before us is sketchy at best, with no statement of facts, findings of fact and conclusions of law. The transcript, which appears to contain less than the complete contents of the court’s file, does not include a motion under TEX.R.CIV.P. 184a for the court to take judicial notice of California law. By means of the pleading of both parties, the trial court had before it the question of whether the California judgment was a valid judgment entitled to full faith and credit. The trial court obviously ruled in favor of the appellee that the California judgment was valid.

It is the burden of the appellant to bring forward a sufficient record to show the error committed by the trial court in overruling the motion to quash. Where the record contains no statement of facts or findings of fact and conclusions of law, every presumption must be indulged in favor of the trial court’s judgment. Commercial Credit Corp. v. Smith, 143 Tex. 612, 187 S.W.2d 363, 365 (1945). The trial court presumably found the California Municipal Court had jurisdiction over the subject matter of appellee’s suit. Additionally, the courts of this State have long held that the presumption that foreign law is the same as Texas law cannot be used to overthrow the presumed validity of the judgment of a sister state. Dowden v. Fischer, 338 S.W.2d 534, 537 (Tex.Civ.App.—Waco 1960, no writ); Roberts v. Hodges, 401 S.W.2d 332, 334 (Tex.Civ.App.—Amarillo 1966, writ ref’d n.r.e.).

The record before us does not reveal any failure of jurisdiction of the California court such as would render the judgment void. The action of the trial court in overruling the motion to quash writ of execution is affirmed.

      . We note that the California judgment in question, entitled "Default by Clerk”, is a form judgment, with no provision for it to be signed by the judge, under the particular circumstances involved. This peculiar action by the clerk is apparently in complete accord with California civil procedure statutes. See: California Code of Civil Procedure, sec. 585. (Deering Supp. 1985).


text:
    Dwight Ardell MURPHY, Appellant, v. The STATE of Texas, State.
    No. 2-84-079-CR.
    Court of Appeals of Texas, Fort Worth.
    May 16, 1985.
    Bruder and Cooper and J. Stephen Cooper, Dallas, for appellant.
    John D. Nation, Asst. Dist. Atty., Dallas, for appellee.
    Before ASHWORTH and JOE SPUR-LOCK, II, JJ., and W.A. HUGHES, Jr., J. (Retired) (Sitting by Assignment).
   OPINION

ASHWORTH, Justice.

Appellant was convicted of burglary of a habitation, TEX.PENAL CODE ANN. sec. 30.02 (Vernon 1974), and after finding enhancement, the jury sentenced him to thirty-five years confinement.

Judgment affirmed.

Appellant’s one ground of error alleges that the evidence was insufficient to prove a prior final conviction as alleged in the enhancement paragraph of the indictment. The indictment alleged that a prior robbery conviction became final on September 2, 1982. The evidence to prove such conviction consisted of State’s exhibit no. 27, a pen packet. The gist of appellant’s argument is that the evidence presented by the State shows that appellant was convicted of robbery on July 1, 1981, not on September 2, 1982, as alleged in the indictment.

Included in the pen packet is a “judgment and sentence”, dated July 1, 1981, which recites that the appellant pled guilty to robbery, a second degree felony, and was sentenced to seven years confinement; also included is an “order revoking probation” dated September 2,1982, which bears the same case number as reflected in the “judgment and sentence.” The “order revoking probation” recites that appellant was convicted of robbery, a second degree felony as charged in the indictment, and sentenced to seven years confinement and placed on probation, and that the probation is revoked and that the sentence is reduced from seven years confinement to four years confinement.

It is true, as appellant contends, that the “judgment and sentence” makes no provision with regard to probation, and looking at that instrument only, one would reasonably conclude that appellant was sentenced to seven years confinement on July 1, 1981 for the offense of robbery. It is also true that immediately following that particular instrument is another designated “order revoking probation,” bearing the same case number as that of the “judgment and sentence” stating that appellant had been placed on probation in that particular case and that his probation was revoked effective September 2, 1982.

The “judgment and sentence” and “order revoking probation” are both parts of the same exhibit. Both instruments must be examined together to properly construe their effect. It is apparent that after being convicted on July 1, 1981, of the offense of robbery, appellant was assessed a seven-year term of confinement and placed on probation. That probation was revoked on September 2, 1982, and a four-year sentence assessed. No final conviction occurs when a person is placed on probation and the conviction becomes final only when that probation is revoked and a sentence imposed. Todd v. State, 598 S.W.2d 286 (Tex.Crim.App.1980). When the probation was revoked on September 2, 1982, the conviction became final as alleged in the enhancement paragraph in question. We find that there was sufficient evidence to warrant a finding by the jury that appellant was finally convicted of the offense of robbery on September 2, 1982.

The judgment is affirmed.