author: BASS, Justice.

text:
    David Wilson McCREA, Appellant, v. CUBILLA CONDOMINIUM CORPORATION N.V. and Fidinam (U.S.A.), Inc., Appellees.
    No. 01-84-0250-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 24, 1985.
    Rehearing Denied Feb. 21, 1985.

      Karen A. Lerner, Michael R. Charlton, Houston, for appellant.
    Jim Flegle, Barbara E. Gardner, Brace-well & Patterson, Houston, for appellees.
    Before JACK SMITH, BASS and LEVY, JJ.
   OPINION

BASS, Justice.

The appellant, David McCrea, brought suit against appellees, Cubilla Condominium Corporation and Fidinam (U.S.A.) Inc., under the Texas Deceptive Trade Practices Act (DTPA) and under contract law for alleged defects in a condominium. The original trial court entered a partial summary judgment on claims arising from the contract and as to express and implied warranties, and ordered a trial on all claims arising under the DTPA. The suit was later transferred to another court which held a non-jury trial on the misrepresentation claims brought under the DTPA. That court found that there were no material misrepresentations by the seller and entered a take nothing judgment.

We affirm in part and reverse and remand in part.

The appellant, McCrea, claims that the original court erred in granting a summary judgment on the issues of express and implied warranties. He also claims that the court erred in holding that a misrepresentation, under the DTPA, had to be material. Further, he claims that if, in the alternative, the misrepresentations are required to be of a material fact, then the court’s holding that there were no material misrepresentations is against the great weight and preponderance of the evidence or is established by the evidence as a matter of law.

McCrea entered into an earnest money contract with the appellee, Cubilla, to purchase a condominium that had been converted from an apartment. The contract contained a disclaimer of all warranties, express or implied, and further provided that no representations, claims, or statements made by the seller would be binding unless they were set forth in the purchase agreement or in a subsequent written agreement executed by the seller. Two months after the parties entered into the contract, Cubilla sent a letter to McCrea stating that it would correct all defects in the unit caused by defective materials or faulty workmanship on items defined in “Schedule A” (i.e., washer, dryer, and fireplace) of the contract.

After McCrea moved into his condominium, his roof began to leak. He notified the resident manager, who in turn notified Fidi-nam, Cubilla’s authorized representative. In the conversion of the apartments, Fidi-nam had served as the construction manager and agent in fact. It was Fidinam that authorized the repairing of McCrea’s roof. However, the roof continued to leak, and when the limited warranty on the “Schedule A” items was about to expire, Fidi-nam’s general manager sent a letter stating that it would continue to work on the roof until it was repaired.

The first issue is whether the trial court properly entered a summary judgment on “all claims arising from the contract as to express and implied warranties between the parties.” The seller contended it was entitled to a judgment, as a matter of law, because of the following arguments:

The condominium unit was a used good, [sic] without an implied warranty of habitability.
Assuming that the implied warranties existed, they were expressly waived by the Appellant by language in his Contract of Sale wherein the Appellant agreed to take the unit “without warranty from Seller, express or implied.”
That the Appellee Fidinam had made no representations of the warranty alleged in the Petition and was not the seller.

When a summary judgment order does not state the grounds upon which it is granted, a party appealing from the order must show that each of the independent arguments alleged in the motion are insufficient to support the order. Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.—El Paso 1983, no writ).

In reviewing these arguments, we look to the agreement of the parties. If the contract is unambiguous, then its construction becomes a question of law for the trial court. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). The pertinent sections of the contract are as follows:

(g) Purchaser understands that the unit has been converted from a rental unit. That purchaser has made a physical inspection of the unit and, thus is taking the unit, all appliances and utility fixtures and equipment without warranty from seller, express or implied; or in the event purchaser has specified improvements to be made as per schedule A. Then seller shall, at closing, assign to purchaser any and all manufacturers warranties which he may have to said appliances, fixtures or equipment.
This agreement (including the instruments and documents referred to in sub-paragraph (d) of paragraph 10 and all exhibits hereto) constitutes the final and complete agreement between the parties. No representations, claims, statements, advertising or promotional activities made or conducted by seller or seller’s agents or representatives shall be binding upon seller unless the same are expressly set forth in this agreement or in a subsequent written agreement executed by seller.

(emphasis added). Cubilla, on June 27, 1981, sent a subsequent written agreement to McCrea, which reads as follows:

Cubilla Condominium Corporation, N.Y., as seller, warrants that the above condominium unit has been completed as of date hereof, and that for a period of one (1) year hereafter, provided said unit is owned by addressee, Seller will, at its own expense, repair or otherwise correct any defects (other than those being excluded) in said unit caused by defective materials or faulty workmanship incorporated into the construction of said condominium unit, and defined in Schedule A of your Earnest Money Contract,

(emphasis added). Under the terms of these documents, McCrea purchased the condominium without any type of warranty, except those listed in “Schedule A” and any express warranties given by a “subsequent written agreement.”

An express warranty is created when a seller makes an affirmation of fact or a promise to the purchaser, which relates to the sale and warrants a conformity to the affirmation as promised. See Bormaster v. Henderson, 624 S.W.2d 655, 660 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). Cubilla and Fidinam, in support of the summary judgment, contend that no other express warranties were made at the time McCrea purchased the condominium.

However, McCrea makes three arguments which he contends raise a fact issue that precludes a summary judgment. First, he submits that even if the contract states that he disclaimed all express and implied warranties, the provision is void under section 17.42 of the DTP A. Second, he claims that he purchased a new condominium to which an implied warranty of habitability applied. Finally, he claims that the letter he received from Fidinam raised a fact issue as to the existence of an express warranty for the roof.

We disagree with McCrea’s argument that the disclaimer in the contract is rendered unenforceable by section 17.42 of the Texas Deceptive Trade Practices Act. McCrea was free to contract with Cubilla, and took the condominium “without warranty from seller [Cubilla], express or implied.” This language is sufficiently clear and free from doubt so as to constitute an agreement that McCrea waived the implied warranty of fitness created by Humber v. Morton, 426 S.W.2d 554 (Tex.1968), and also waived all express warranties. McCrea is bound by his agreement. See G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982). McCrea contends that Robichaux authorizes only the disclaimer of warranties under a contract cause of action. However, Robichaux was brought under the Texas Deceptive Trade Practices Act, and the Texas Supreme Court gave effect to the disclaimer. See also Ellmer v. Delaware Mini-Computer Systems, Inc., 665 S.W.2d 158 (Tex.App. — Dallas 1983, no writ). We hold that when a contract specifically states that no express or implied warranties are made, a cause of action for breach of express or implied warranties under either the DTPA or contract law has been waived, unless such provision is against public policy or some other statutory provision.

Because McCrea disclaimed his implied warranties, there is no issue as to whether such implied warranties existed for the purchase of a condominium converted from a used apartment, and thus, we need not consider appellant’s second argument.

In appellant’s third argument, he claims that a letter he received from Fidi-nam superseded the disclaimer of expressed warranties and showed that the roof was expressly warranted. The pertinent parts of the letter read as follows:

In confirmation of our telephone conversation, we acknowledge the existence of a persistent roof leak in your unit. We will continue our efforts to locate the source of your problem and resolve it to your satisfaction.
In the unlikely event we cannot locate the leak before the end of your warranty period we will, of course, stand behind our product and remedy the problem at our expense.

We agree with appellant’s argument that this letter constitutes a subsequent written agreement from the seller that created an express warranty. This letter was signed by the General Manager of Fidinam (U.S. A.), Inc., who was the attorney-in-fact for Cubilla. Cubilla admits within its response to interrogatories that Fidinam was authorized to execute contracts for it, and that, in connection with the conversion of the property into condominiums, Fidinam served as its construction manager and as an agent-in-fact.

Cubilla and McCrea contracted for the disclaimer of all expressed and implied warranties in the contract. However, the subsequent written agreement by Fidinam, Cu-billa’s representative, superseded the disclaimer of all express warranties, and thus created an express warranty on the roof. The trial court correctly granted the partial summary judgment as to alleged breaches of implied warranties, but erred in granting a summary judgment that there were, as a matter of law, no express warranties.

As a matter of law, the letter warrants that the appellees will repair the roof to McCrea’s satisfaction. On remand, the issue before the trial court will be whether the appellees breached this warranty, and if so, then there must be a determination of the damages, which were contractually limited to the repair of the roof. See Rinehart v. Sonitrol of Dallas, Inc., 620 S.W.2d 660, 663 (Tex.Civ.App. — Dallas 1981, writ ref’d n.r.e.).

The appellees contend that if we hold that the letter dated May 18, 1982, contains a warranty, then the provisions of the letter were fully satisfied, and thus, there is no breach of warranty. The appel-lees did not make this point in their summary judgment motion, nor did they establish during the summary judgment proceedings that there was no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. As a result, this is a fact issue that must be determined by the trial court. Tex.R.Civ.P. 166-A(c) (Vernon Supp.1984).

Turning our attention to the misrepresentation claims under the DPTA, the record shows the appellant claimed and attempted to prove that the sellers misrepresented the fact that they would work on the roof until such time as the problem was corrected, and also that the roof was about two years old. When these claims were tried before the trial court, it ruled that appellant should take nothing, because he did not establish a material misrepresentation under DPTA.

The appellant contends the trial court erred in holding that a misrepresentation under the Deceptive Trade Practices Act had to be material. Misrepresentation under DTPA are statements, promises, or representations made before the contract is signed in order to induce the acceptance thereof. Anthony Industries, Inc. v. Ragsdale, 643 S.W.2d 167, 174 (Tex.App.— Fort Worth 1982, writ ref’d n.r.e.). However, these misrepresentations are actionable only when they concern a material fact. Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex.1980).

The appellant relies on Jim Walter Homes v. Castillo, 616 S.W.2d 630 (Tex. Civ.App. — Corpus Christi 1981, no writ) to argue that materiality is not a consideration in determining liability under the DPTA. However, Castillo instructs the trial court on submission of jury issues. A companion case, Jim Walter Homes, Inc. v. Chapa, 614 S.W.2d 838, 841 (Tex.Civ.App. —Corpus Christi 1981, writ ref’d n.r.e.), explained in more detail that materiality need not be submitted in special issues, since a jury issue is to be phrased in terms as similar as possible to the statute itself. These two cases involve the phrasing of jury issues, and not whether the alleged misrepresented fact must be material to be actionable under the DTPA. We do not find appellant’s cited cases to be dispositive on the issue.

The court in Pennington did not explain why a misrepresentation must be material. The appellant argues that the mere showing of a misrepresentation should be actionable under the DTPA. However, we disagree, because it would create situations where the defendant would be strictly liable for any and all misrepresentations, regardless of the representation’s importance to the parties’ transaction. A misrepresentation must be such that it constitutes a producing cause of damages. See Bormaster v. Henderson, 624 S.W.2d 655, 660 (Tex.App. — Houston [14th Dist.] 1981, no writ). To do this the representation must be material. A material fact is one which causes a party to enter into the transaction. See Putman v. Bromwell, 73 Tex. 465, 11 S.W. 491 (1889); Sawyer v. Pierce, 580 S.W.2d 117, 124 (Tex.Civ.App. — Corpus Christi 1979, writ ref’d n.r.e.). Thus, we hold that for a party to have a misrepresentation cause of action under the DTPA, the misrepresentation must have been material to the transaction.

Appellant also contends that if a misrepresentation had to be material, then the trial court erred when it found there was no material misrepresentation. He argues that the evidence conclusively established the opposite of this finding, and alternatively, that this finding is against the great weight and preponderance of the evidence.

There were no findings of fact or conclusions of law requested or filed. Thus, all questions of fact are presumed to have been in support of the trial court judgment. Goodyear Tire & Rubber Co. v. Jefferson Const., 565 S.W.2d 916, 918 (Tex.1978); 4 R. McDonald, Texas Civil Practice in District and County Court sec. 16.10 (rev. 1984).

The trial court found that there were no material misrepresentations. There is no evidence in the record that appellees’ representation that the roof was approximately two years old was the cause of appellant’s damages. Although there is evidence that the roof was approximately three years old, the evidence also shows that the characteristics of the roof would have been the same whether it was two or three years old.

Furthermore, McCrea claims that the appellees misrepresented the fact that they would work on the roof until such time as the problem was corrected. The record does not support this allegation. It shows that not only had the roof been repaired, but also that during Hurricane Alicia the roof did not leak. We conclude, in light of Guthrie v. National Homes Corp., 394 S.W.2d 494 (Tex.1965), the evidence supports the trial court judgment that there were no misrepresentations of material fact.

We affirm the judgment of the trial court, except for that portion of the partial summary judgment that found there were no express warranties. We hold, as a matter of law, that the letter of May 15, 1982, created an express warranty on the roof. We remand that portion of this cause of action for determination of whether there was a breach of such warranty, and if so, whether there were any damages from that alleged breach.

      . Rinehart held the contractual limitations of actual damages is not a violation of section 17.42 of the DTPA, but an attempt to limit treble damages that are authorized by section 17.50(b) would be a violation of section 17.42.


source: Caselaw Access Project

author: COHEN, Justice.

license: Public Domain

text:
    Loretta Jean CLINE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0321-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 24, 1985.

      Jimmy James, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Lori B. Millberg, Herbert Burns, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

COHEN, Justice.

A jury convicted the appellant of forgery, a third degree felony, upon finding that she possessed a forged check with intent to utter it. Tex.Penal Code Ann. sec. 32.21 (Vernon 1974). The court assessed punishment of two years probation. She brings three grounds of error asserting that the court erred by denying her motion to dismiss for lack of a speedy trial; that the evidence was insufficient; and that the jury charge was fundamentally defective for failing to describe an offense. We overrule these grounds of error and affirm the judgment.

The appellant filed two motions concerning the issue of speedy trial. The first was filed March 19, 1984, and was styled “Defendant’s Motion for Speedy Trial.” It prayed for alternative relief, either that a speedy trial be granted or that the indictment be dismissed for lack of a speedy trial. Neither motion cited the Speedy Trial Act, Chapter 32, Code of Criminal Procedure. The court denied the March 19th motion; however, in response to the motion, the case was set preferentially for trial, thus giving the appellant one form of the relief requested. Consequently, no error is shown as to the March 19th motion.

The March 20th motion to dismiss for lack of the speedy trial contained an identical prayer for alternative relief. Therefore, the granting of a preferential setting in response to the March 19th motion also constituted granting one of the forms of alternative relief prayed for under the March 20th motion. The record does not indicate that any other ruling was ever made expressly relating to the March 20th motion.

We conclude that the court’s action in granting the speedy trial granted relief on both motions and, therefore, nothing is presented for review.

The first ground of error is overruled.

The second ground of error complains that the evidence was insufficient. The evidence showed that the appellant was employed by the complaining witness, a physician, and that she had the exclusive responsibility for his bookkeeping and banking. She was responsible for recording the receipt of checks and depositing them in her employer’s account. The employer’s record showed that the forged check was not deposited on the day of receipt and that the business records had been altered so that the missing check would not be noticed. A teller at the employer’s bank identified the appellant as the person who cashed the check at the time she made a deposit to the employer’s account. A vice-president of the employer’s bank testified that he confronted the appellant with his suspicions, and she admitted that she had forged her employer’s signature and cashed the check. This evidence was clearly sufficient. See Penal Code sec. 32.21(a)(1)(A)(i); (B); and (C).

The appellant argues, however, that the evidence in a forgery case cannot be sufficient when, as in the instant case, the original check is lost. In Anderson v. State, 621 S.W.2d 805, 809 (Tex.Crim.App.1981), the court approved the use of a copy of a check the defendant was accused of forging. A true copy of the check was held properly admitted where there was sufficient proof that the original had been lost, that a reasonable effort had been made to find it, and there was no evidence that the copy differed from the original. The court held that whether these predicates have been proved is a matter within the trial judge’s sound discretion. In this case, the court received a true copy of the forged check only after hearing testimony concerning its loss and the prosecutor’s diligent but unsuccessful search for it. There was no evidence that the copy differed from the original. No abuse of discretion has been shown.

The appellant further argues under this ground of error that the absence of the original check rendered the entire prosecution fundamentally unfair because it made it impossible for her to prove, by use of expert handwriting analysis, that the endorsement on the check was not her own. The appellant called as her witness a handwriting expert with the Houston Police Department, who testified that it was impossible to use a copy to compare the handwriting thereon with known original handwriting samples. This, the appellant claims, deprived her of essential evidence because, if the original had not been lost, it could have been examined by a handwriting expert who might have concluded that it was, in fact, not forged, but was signed by the complaining witness, her employer.

We consider this to be a due process claim, although no authority has been cited. We observe that there is no evidence that the original check was ever possessed by the state. It appears to have been lost by the bank’s insurance company. Thus, it cannot be said that the state ever had access to the original check, or that its access assisted it in the preparation or presentation of its case. It was not shown that the state’s possession, if any, of the check led to the discovery of any witnesses or evidence against the appellant. This is not a case in which the check was shown to have been examined by the state’s expert, secret and apart from any defense investigator, and was then lost before the defendant had an opportunity for an equal examination. It has not been shown that the state benefited in any way from the loss of the check, or that the state caused the loss of the check. In fact, the state was deprived of the same “benefit” claimed by the appellant because expert analysis of the original could just as likely have supported the testimony of the complaining witness, who denied endorsing the check.

The disadvantage claimed is based entirely on speculation that a defense handwriting expert would have concluded that the original check was endorsed by the appellant’s employer. This is too speculative a harm to render an otherwise fair trial unfair. See California v. Trombetta, — U.S. -, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984). The state’s case was certainly not stronger in the jury’s eyes and was probably weaker as a result of not having the original check.

Ground of error two is overruled.

The third ground of error argues that the jury charge was fundamentally erroneous because it failed to include the back side of the check, containing the endorsement, in the jury charge. No authority is cited under this ground of error. The jury charge does include the face of the check.

This issue was decided in the state’s favor in Howell v. State, 627 S.W.2d 836 (Tex.App. — Fort Worth 1982, pet. ref’d), a forgery case in which neither the front nor the back of the check was contained in the jury charge. The Howell court noted that: (1) the tenor of the check was alleged in the indictment; (2) only one check was introduced into evidence; (3) the appellant failed to request that the exact wording of the check be included in the jury charge; and (4) the appellant failed to object to the court’s charge on the ground that the exact wording was not set out therein. This was also the situation in the case at bar. The cheek was set out in the indictment by photocopy, and it was the only check introduced in evidence. The appellant did not object to the charge or request that it include the other side of the check. We conclude that the charge was not fundamentally defective. Howell v. State, supra; Hart v. State, 682 S.W.2d 346 (Tex.App. — Dallas, 1984).

The third ground of error is overruled.

The judgment is affirmed.


author: AKIN, Justice.

text:
    Tommy L. DORSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 05-84-00457-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 24, 1985.

      Bruce Anton, Dallas, for appellant.
    Dennis E. Guffey, Asst. Dist. Atty., Dallas, for appellee.
    Before AKIN, SPARLING and DEVA-NY, JJ.
   AKIN, Justice.

Appellant was convicted by a jury of the offense of burglary of a habitation. Punishment was assessed at 25 years confinement. We affirm.

In his sole ground of error, appellant contends that the court erred in allowing the prosecution, at the punishment phase, to argue facts outside the record. Specifically, he objects to the following argument:

MR. ISENBERG: Okay. Now, that’s the kind of person he is.
And what kind of person is the victim? You know, it's an insult for the defense counsel to get up here and say, well, put him on probation and give her money. I mean, that’s just the most ridiculous thing that I’ve ever heard. She didn’t want money. She doesn’t want anything from him other than—
MR. THOMPSON: Judge, that’s outside the record. She hasn’t testified as to what she wants on punishment.
THE COURT: No, overruled. Its argument.
MR. ISENBURG: She doesn’t want anything but for him to be put away to where he can’t do it to some other neighbor that he might have, whoever bought that house from them.

Appellant argues that this statement was outside the record because no evidence existed that the complainant wanted appellant confined for burglarizing her house. In response, the State first argues that appellant’s objection was not timely in that no objection was made following the prosecutor’s remark. We do not agree. A reading of the argument in its entirety establishes that appellant was obviously objecting to the prosecutor telling the jury what type of punishment the complainant allegedly desired for appellant. The objection was made just as the prosecutor was about to describe the punishment purportedly desired by the complainant. The objection was overruled and the prosecutor then completed his remark. We conclude that appellant’s objection was timely made.

The State alternatively argues that the prosecutor’s statement was proper. We agree. A jury argument is proper if it is a summation of the evidence, a reasonable deduction from the evidence, an answer to an argument of opposing counsel, or a plea for law enforcement. Hightower v. State, 629 S.W.2d 920 (Tex.Crim.App.1981); Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973). We conclude that the prosecutor’s argument was a reasonable deduction from the evidence. Counsel is given wide latitude without limitation in drawing inferences from the evidence as long as those inferences are fair, legitimate, and offered in good faith. Denison v. State, 651 S.W.2d 754 (Tex.Crim.App.1983). A prosecutor’s statements to the effect that it is an indignity on the complainant to be forced to testify have been held to be reasonable deductions from the evidence. Moore v. State, 658 S.W.2d 312 (Tex.App. — Houston [1st Dist.] 1983, pet. ref’d). Similarly, we conclude that where, as in the instant case, the complainant testified as to appellant’s guilt it is a reasonable deduction from the evidence that the complainant desired appellant’s incarceration.

Additionally, we note that a prosecutor’s argument may call the attention of the jury to something not reflected in the record which is of such common occurrence that its recognition requires no expertise. Jordan v. State, 646 S.W.2d 946 (Tex.Crim.App.1983). In this respect, it is common knowledge that a complainant would want to see the offender incarcerated. We recognize that a jury argument referring to the expectations or demands of the community for a particular result constitutes reversible error and can not be cured by an instruction to disregard. Bothwell v. State, 500 S.W.2d 128 (Tex.Crim.App.1973). Because jurors view themselves as, and indeed are, representatives of the community, such an argument puts undue pressure on the jurors to accede to the prosecutor’s requests and thus is considered particularly harmful. The argument in our case, however, does not pose the same danger in that jurors do not act as representatives of a complainant. Accordingly, we hold that the prosecutor’s argument was harmless and that the trial court did not err in overruling appellant’s objection thereto.

The judgment is affirmed.


author: LEVY, Justice.

text:
    Robert C. EVANS, et al., Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al., Appellees.
    No. 01-84-0511-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 31, 1985.
    Rehearing Denied Feb. 21, 1985.

      James A. McGuire, James A. McGuire & Associates, Houston, for appellants.
    Arthur M. Glover, Jr., Hicks, Hirsch, Glover & Robinson, David E. Lueders, Law Offices of David E. Lueders, Houston, for appellees.
    Before JACK SMITH, BASS and LEVY, JJ.
   OPINION

LEVY, Justice.

This is an appeal from an order dismissing appellants’ suit for fraud. Appellant, Robert Evans, initially brought suit for personal injuries arising from an automobile accident against David Hoag and his insurance carrier, State Farm Mutual Automobile Insurance Company (“State Farm”). The suit was later amended to include a claim against Bert Simmons, a claims adjuster, and his employer, State Farm, for allegedly fraudulent settlement practices. Appellant’s counsel, James McGuire, joined as a party plaintiff on the fraud claim. The trial court subsequently dismissed the fraud claim for abuse of the discovery process. Appellants appeal from the dismissal of the fraud claim following its severance from the personal injury claim on April 26, 1984. Hoag is not a party to the fraud claim or to this appeal.

The record reflects that the court granted not one, but numerous opportunities over a 5 ½-month period for the appellants’ counsel to produce a requested tape-recorded conversation between Simmons and himself. Appellants’ counsel first refused to produce all tapes during a pretrial conference on October 31, 1983. The oral order of the pretrial conference was then reduced to written form on December 20, 1983, setting a January 16th deadline. Appellants’ counsel then turned over all the tapes except the requested tape on January 16, 1984. Instead, appellants produced a tape which later was discovered to be the wrong tape. The trial judge signed an interlocutory order on February 6, 1984, dismissing the fraud claim for failure to produce the requested tape, but orally offered to rescind her order if the tape was produced by April 16, 1984, at 5:00 p.m. On April 16, a tape was produced but not timely presented before the trial judge. The record does not reflect whether the tape produced was the requested tape.

Appellants bring two points of error. In point of error one, appellants assert that the trial court erred in requiring the production of any and all tape recordings held by appellants’ counsel of a telephone conversation with Bert Simmons, an employee of State Farm. In support of their first point, appellants complain that there was no written timely request for the production of the tapes; that the tapes were the attorney’s work product; and that the sanction applied was too harsh.

Appellants argue that the trial court had an affirmative duty not to permit the discovery of an attorney’s “work product.” West v. Solito, 563 S.W.2d 240 (Tex.1978). The “work product” doctrine generally protects against disclosure of specific documents, reports, communications, mem-oranda, mental impressions, conclusions, opinions, or legal theories, prepared and assembled in actual anticipation of litigation or for trial. It is not an umbrella for materials assembled in the ordinary course of business. United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir.1982). We find that the “work product” doctrine does not apply to the statements of State Farm’s employee. Rule 167(6), as amended January 1, 1981 (now found at Tex.R.Civ.P. 166b [2][g] (Vernon 1984)), provides for production as follows:

Any person, whether or not a party, shall be entitled to obtain, upon written request, his own statement previously made concerning the subject matter of a lawsuit, which is in the possession, custody, or control of any party. For the purpose of this paragraph, a statement previously made is (a) a written statement signed or otherwise adopted or approved by the person making it, and (b) a stenographic, mechanical, electrical, or other type of recording, or any transcription thereof which is a substantial verbatim recital of a statement made by the person and contemporaneously recorded.

State Farm is entitled to invoke rule 167(6) regarding the statements of its own employee because “a corporation can only act and speak through its directors, officers, agents and employees.” Mosher Steel & Machinery Co. v. Nash, 6 S.W.2d 158, 164 (Tex.Civ.App. — Dallas 1928, writ dism’d).

Appellants further argue that at the time of the pretrial conference on October 31, 1983, no written request for production of the tapes had been made, pursuant to rule 167. The record reflects that a written request was made by State Farm on December 7, 1983, some 37 days after the pretrial conference at which the trial judge orally ordered production. Appellants complain that the written request must be made within 30 days of the pretrial conference. We are not referred to any authority for the time limitation. Under rule 167(2), the response to any request shall be served within 30 days after receipt of the request. The time limitation on a request provides only that, “No request may be served on a party until that party has filed a pleading or time therefor has elapsed.” Id. Appellants have apparently confused the time limitation for the response with the limitation on the request.

Appellants further complain that the sanction of dismissal was too harsh. Appellants argue that the “most severe” sanction cannot be immediately imposed when there has not been a complete failure to comply with the discovery rules. Lewit v. Illinois Employers Insurance Co., 590 S.W.2d 119 (Tex.1979) (per curiam).

The choice of sanctions is a mat.ter addressed to the sound discretion of the trial court. The question on appeal is whether the court’s decision was arbitrary or unreasonable and is to be decided under the particular facts of each case. City of Houston v. Arney, 680 S.W.2d 867 (Tex.App. — Houston [1st Dist.] 1984, no writ). The dismissal sanction is expressly committed to the trial court’s broad discretion as a means to remedy and deter discovery abuse. On appeal, sanctions for discovery abuse can be set aside only upon a showing of clear abuse of discretion. Waguespack v. Halipoto, 633 S.W.2d 628, 631 (Tex.App. —Houston [14th Dist.] 1982, writ dism’d); Bottinelli v. Robinson, 594 S.W.2d 112, 117 (Tex.Civ.App. — Houston [1st Dist.] 1979, no writ).

Waguespack v. Halipoto, supra, is similar to the instant case. The trial court dismissed the suit for failure to produce requested documents. The defendant finally produced the documents but did not pay the attorney’s fees as ordered. The trial court denied the later motion to reinstate and the court of appeals held that there was no abuse of discretion because of the delay, disobedience to the court’s orders, and general discovery abuse.

The appellants herein have not shown that the sanction of dismissal was a clear abuse of discretion under the facts and circumstances of this case, and we overrule the first point of error.

In point of error two, appellants assert that the trial court abused its discretion in refusing to reinstate the case after voluntary surrender of the requested tapes for “in camera” inspection by the appellants. The order of dismissal was signed February 6, 1984. The trial court offered to rescind its order if the tapes were timely surrendered and a $1,000 check for attorney’s fees was paid to the opposing party. The tapes were allegedly surrendered by the April 16th deadline. Appellants also allege that the check was delivered on time.

To preserve any alleged error, appellants should have filed a bill of exception to show that the tapes were produced because they do not otherwise appear of record. See Tex.R.Civ.P. 372(c), (e); Continental Trailways, Inc. v. McCandless, 450 S.W.2d 707 (Tex.Civ.App. — Austin 1969, no writ); Robinson v. Crump, 422 S.W.2d 536 (Tex.Civ.App. — Houston [14th Dist.] 1967, writ ref’d n.r.e.). Appellants have the burden of making the appellate record. Newsom v. Starkey, 541 S.W.2d 468 (Tex.Civ.App. — Dallas 1976, writ ref’d n.r.e.).

A check for attorney’s fees was attached as Exhibit “C” to appellants’ brief. The check, however, was made payable jointly to “A.M. Glover and James A. McGuire.” The trial court did not intend, and did not order, McGuire to make a check out to himself, singly or jointly. Failure to comply with an order to pay attorney’s fees was grounds for dismissal in Waguespack v. Halipoto, supra; and Lindley v. Flores, 672 S.W.2d 612 (Tex.App. — Corpus Christi 1984, no writ). The mode of payment in the instant case was emphatically not proper payment of attorney’s fees.

We find no error in the trial court’s refusal to reinstate appellants’ fraud action even if the correct tape was eventually produced, because no bill of exception was filed to show that the tape was actually submitted. Furthermore, appellants not only refused to produce the tape as ordered by the court but also clearly violated the trial court’s order to pay attorney’s fees. We find that the trial court’s imposition of sanctions, pursuant to rule 170 (now found in rule 215), finds adequate support in the record’s disclosure of these abuses. The second point of error is therefore overruled.

The judgment of the trial court is affirmed.


author: EVANS, Chief Justice.

text:
    Leroy Lester ARNDT, Appellant, v. Shirley Ann ARNDT, Appellee.
    No. 01-84-00665-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Jan. 31, 1985.
    Rehearing Denied Feb. 14, 1985.
    George C. Peyton, Corpus Christi, for appellant.
    Jamie J. Elick, Elick & Elick, Bellville, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

EVANS, Chief Justice.

This is an appeal from an order increasing the child support obligation of appellant, Leroy Lester Arndt, for his 15 year old daughter. We affirm.

Under the terms of the divorce decree entered June 5, 1981, the appellant was ordered to make child support payments for his two minor children in the total sum of $250 per month. Although the record before us is not entirely clear on the matter, it appears that this order was subsequently modified on November 3, 1982, so as to reduce the child support obligation to $130 per month. Thereafter, on March 6, 1984, in a contempt proceeding instituted on appellee’s motion, the court found that the oldest child had reached 18 years of age on November 2, 1983, and “by way of clarification of its previous order,” it decreed that the appellant’s child support “shall remain at $130 per month ... until the youngest child reaches 18 years of age or until modified” by subsequent order.

On June 20, 1984, the appellee filed a motion alleging that there had been a material and substantial change of circumstances since the prior order dated November 3, 1982, and asking that the amount of child support be increased. At a hearing on September 5, 1984, the appellee testified that her daughter’s expenses had increased because of her entry into high school, where she had to pay laboratory feés and the expenses of extracurricular activities such as uniforms, twirling lessons, and the cost of a major school project. She also testified that the child’s clothing expenses had increased by about $100 per month and that the child had a psychological problem, which previously had required hospitalization. She said she was unable to afford the necessary psychiatric care for her daughter. The appellee further testified that her own income had increased only $150 per year since the prior order and that her income was not sufficient to meet the child’s additional needs. The appellant did not testify at the hearing, nor did he present any evidence in contradiction of the appellee’s testimony. The trial court did have before it, however, the appellant’s financial information statement, indicating appellant’s monthly gross income to be $1168 and his net income to be $878 per month.

The trial court filed findings of fact and conclusions of law, in which it determined that because the child had recently started high school and was engaged in school activities, the appellee had increased costs and expenses attributable to the child’s needs, which she was unable to pay. Thus, the court concluded that the evidence established a material and substantial change of circumstances of the child and the appel-lee since the prior order, and on the basis thereof, it ordered the child support obligation increased from $130 per month to $220 per month. The record does not indicate that any additional findings or conclusions were made or requested.

In two points of error, which will be considered together, the appellant contends that the trial court abused its discretion in increasing the child support obligations because there was no evidence of a material and substantial change in the circumstances of the child or a person affected by the prior decree. Both points of error challenge only the legal sufficiency of the evidence to support the judgment, and therefore, we view the evidence in the light most favorable to the judgment, giving effect to all reasonable inferences that may properly be drawn therefrom and disregarding all evidence to the contrary. Butler v. Hanson, 455 S.W.2d 942, 944 (Tex.1970); Cannon v. Cannon, 646 S.W.2d 295, 297 (Tex.App. — Tyler 1983, no writ).

We find the appellee’s testimony to be legally sufficient to support the trial court’s findings that there had been a material and substantial change in appellee’s circumstances, and those of the child, since the date of the prior order. One way to demonstrate a substantial and material change in the needs of the child is to show the child’s needs at the time of the prior support order and the child’s needs at the time of the hearing, but that is not the only way. Contrary to the appellant’s argument, the appellee is not required to offer evidence of her income and each expense at the time of the prior order and her income and each expense at the time of the hearing so that an overall comparison could be made. Her testimony showing a substantial increase in the designated expenses for the child, in the absence of evidence showing any decrease in expenses, was sufficient to establish her claim that there had been a material and substantial increase in the needs of the child. The evidence before the trial court was legally sufficient to provide a basis for its judgment. Bergerac v. Maloney, 556 S.W.2d 586 (Tex.Civ.App. —Dallas 1977, writ dism’d) is distinguishable, because in that case, there was no evidence upon which the court could determine whether the childrens’ expenses had increased.

We also overrule the appellant’s contention that there is no evidence of his financial ability to pay the increased amount of child support. The appellant argues that the judgment cannot stand because no evidence was introduced of his financial ability to pay child support in November 1982, which could be compared with his financial ability at the time of the hearing. It was not the appellee’s burden to make a comparative showing of the appellant’s financial ability, and on the basis of the appellant’s financial statement alone, the trial court was entitled to determine that appellant had the financial ability to pay the increased child support. Willis v. Willis, 425 S.W.2d 696 (Tex.Civ.App.— Houston [1st Dist.] 1968, no writ). The trial court has broad discretion in matters relating to child support, Dorshaw v. Dorshaw, 635 S.W.2d 783 (Tex.App. — Corpus Christi 1982, no writ), and the appellant has not demonstrated that the trial court abused its discretion in the instant order. We accordingly overrule appellant’s two points of error.

The judgment of the trial court is affirmed.


author: GAMMAGE, Justice.

text:
    Victor MAREK, Appellant, v. The STATE of Texas, Appellee.
    No. 3-84-141-CR.
    Court of Appeals of Texas, Austin.
    Feb. 6, 1985.
    James H. Kreimeyer, Kreimeyer, Cain & Jezek, Belton, for appellant;

      Edward J. Walsh, Dist. Atty., Georgetown, for appellee.
    Before PHILLIPS, C.J., and POWERS and GAMMAGE, JJ.
   GAMMAGE, Justice.

Victor Marek stands convicted of unlawful delivery of grain, pursuant to Texas Agric.Code Ann. § 14.030(a)(1) (1982). Punishment was assessed at confinement in the Department of Corrections for 12 years. He brings two grounds of error to this Court complaining of the trial court’s refusal to quash the indictment upon his motion. We will affirm the judgment of conviction.

Marek was indicted for 21 counts of unlawful delivery of grain. The indictment presents 48 paragraphs alleging alternate ways the offense could have been committed. Marek moved the trial court to quash each of the 48 paragraphs. The State waived two paragraphs of the indictment, the trial court denied Marek’s motion to quash, and the case went to trial on the modified indictment. Marek now contends that the trial court erred in failing to grant his motion on either of the two grounds discussed herein.

The State pleaded and proved that Ma-rek:

... did then and there intentionally deliver grain ... out of a public grain warehouse ... knowing that a negotiable receipt for said grain was outstanding and without possessing that receipt....

The State further pleaded and proved the issue date of each receipt, and the serial number of each receipt.

Section 14.030(a)(1), under which Marek was convicted, provides:

(a) A person commits an offense if the person:
(1) delivers grain out of a public grain warehouse knowing that a negotiable receipt for the grain is outstanding and without possessing the receipt.

In his first ground of error, Marek claims that the indictment was defective and failed to give fair notice because it did not allege to whom the negotiable receipts for the grain had been originally issued. Marek cites no authority for this proposition.

Section 14.030(a)(1), on its face, does not require the State to prove identity of the original recipient of the receipt. The State contends that, although the recipients were called to testify, the offense could have been proved without this testimony, and that proof of their identity is not necessary to establish a violation of § 14.-030(a)(1). We agree. The identity of the original depositors of the grain is irrelevant and immaterial because of the negotiability of the receipts. The crime is the release of a commodity, with which one is entrusted, without presentment or possession of the receipt evidencing ownership.

While a charging instrument must allege every element of the offense charged, it need not allege matters which need not be proved. Article 21.02 and 21.-03, Tex.Code Cr.P.Ann. (1966); Fleming v. State, 62 Tex.Cr.R. 653, 139 S.W. 598 (1911). Appellant’s first ground of error is overruled.

Section 14.001(4) of the Agriculture Code defines “public grain warehouse” as follows:

“Public grain warehouse” means a building, bin or similar structure used for:
(A) the receiving, storing, shipping, or handling grain for hire; or
(B) the purchasing and selling of grain, including grain on which payment is deferred.

The charge of the court tracked this exact definition.

By his second ground of error, Ma-rek complains of the failure of the indictment to specify which of the alternate definitions the State relied upon to prove the offense. Specifically Marek contends that the act charged is not merely “delivery of grain,” but “delivery of grain out of’ a public grain warehouse,” and therefore the State must specify which of the two means of committing the offense is alleged. The State asserts that this situation is controlled by Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1980), which discusses what constitutes “an act” requiring definition in an indictment. Thomas holds that the State need not specify which statutory definition of “without the effective consent” and “owner” it is relying on in a theft indictment because these are Vmly eviden-tiary issues. The State argues that the type of “public grain warehouse” is also merely evidentiary, and therefore need not be defined in the indictment.

Specification of the type of public grain warehouse will not assist or affect the appellant in the preparation of his defense. As with the terms “owner” and “effective consent,” the term “public grain warehouse” is statutorily defined and “does not go to an act or omission of the [accused].” Thomas, supra at. 165.

Appellant’s second ground of error is overruled and the judgment of conviction is affirmed.

PHILLIPS, C.J., not participating.


text:
    John Rogers SLATON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0212-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 7, 1985.

      Stanley Schneider, Catherine Green Burnett, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, George Lambright, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

EVANS, Chief Justice.

A jury convicted the defendant of murder, and the trial court assessed his punishment at eight years confinement. We reverse the trial court’s judgment and remand the cause for a new trial.

In the early morning hours of February 4,1983, the Houston police were called to a downtown motor inn, where they found the body of a man who had fallen from the seventh floor balcony. At the scene, an eyewitness told the police that he was the next-door neighbor of the dying man and the appellant. The witness gave a statement to the police, indicating that the deceased had fallen accidentally from the balcony. At trial, the witness testified to the contrary, stating that the deceased had been pushed from the balcony by the appellant during an argument. The deceased and the appellant had lived together in a homosexual relationship for the past 14 years.

We consider the appellant’s second ground of error to be dispositive of the appeal. In that ground, he contends that the trial court erred in refusing to charge the jury on his defensive theory of suicide. He argues that the trial court improperly overruled his objection to the court’s charge. The objection stated:

COUNSEL: Third, Your Honor, we would object to the Court’s charge for the failure of the Court to specifically charge the jury that if they find that John Slaton was attempting to prevent suicide or have a reasonable doubt as to whether or not he was preventing suicide or committing the offense of murder, they should render the verdict in the defendant’s favor.

There was ample evidence to raise the issue of whether the decedent had caused his own death. Several witnesses testified that the decedent often talked of jumping out a window and of committing suicide. There was evidence that the deceased had attempted suicide previously by climbing on to the ledge outside a tenth floor window of the Pennzoil Building. The deceased had a severe drinking problem and was continually depressed about his mother’s death, his inability to find work, his bad health, and his problems in interpersonal relationships. A psychologist testified that, in her expert opinion, the decedent was a very high suicide risk and that under the circumstances presented by the evidence, there was a very high probability that the decedent had committed suicide.

The state concedes, on oral argument, that the evidence was sufficient to raise the defensive theory of suicide. However, the state contends that the trial court did not err in overruling the appellant’s objection, because the objection did not direct the court’s attention to the issue of suicide as being the cause of the complainant’s death. We disagree with the state’s position.

In a murder prosecution, a defendant is entitled to the affirmative submission of any defensive theory raised by the evidence, including defensive theories concerning the cause of death. Hill v. State, 585 S.W.2d 713 (Tex.Crim.App.1979). However, if the requested instruction merely denies the existence of an essential element of the offense charged, the trial court does not have to submit the issue affirmatively. Green v. State, 566 S.W.2d 578, 584 (Tex.Crim.App.1978).

In Hill, the requested charge instructed the jury that the defendant should be acquitted if there was a reasonable doubt that the complainant’s death had been caused by “some natural bodily ailment or disease.” In the case at bar, the appellant’s objection asserted that the court’s charge failed to specifically instruct that the appellant should be acquitted if the jury found that he “was attempting to prevent suicide” or if they had a reasonable doubt “as to whether or not he was preventing suicide or committing the offense of murder.”

The appellant’s objection sufficiently directed the trial court’s attention to the defensive issue of suicide, i.e., the issue of the cause of the complainant’s death. Even though the objection referred to the appellant’s actions in “preventing suicide,” rather than to the issue of suicide as causing the appellant’s death, we find this semantic difference to be insignificant. The appellant was entitled to the affirmative submission of the defensive theory of suicide as the cause of the complainant’s death, and appellant’s objection was clear enough to direct the court to the issue of causation. Thus, we hold that the trial court erred in overruling the appellant’s objection, and we sustain the second ground of error.

In view of the disposition of the appellant’s second ground of error, we do not find it necessary to consider appellant’s first ground of error, in which he contends that the trial court erred in denying his challenge for cause to a prospective juror; his fourth ground of error, in which he contends that he was denied an opportunity to impeach the character of a state witness; or his fifth ground of error, in which he claims that the trial court erred in overruling his request for a mistrial because of the improper jury argument of the prosecutor. We will, however, consider his third ground of error in view of further proceedings in the case.

In his third ground of error, the appellant contends that the trial court erred in overruling his objection to the submission of a special issue that inquired whether “the defendant’s hands in the manner they were used” constituted a deadly weapon, as defined by sections 1.07(a)(11)(B) and 1.07(a)(34) of the Texas Penal Code. In this ground of error, the appellant contends that because the allegation of a deadly weapon was not contained in the indictment, the trial court could not properly submit the issue to the jury.

The indictment alleged that the appellant caused the complainant’s death “by intentionally and knowingly committing an act clearly dangerous to human life, namely, by pushing and shoving and throwing the complainant over a balcony, causing him to fall to the ground.” The indictment did not allege that the appellant applied his hands in a manner of use or intended use that was capable of causing death. Tex.Penal Code Ann. sec. 1.07(a)(11)(B) (Vernon 1974).

A person’s hands are not deadly weapons per se, and they “can become such only in the manner used depending upon the evidence shown.” Turner v. State, 664 S.W.2d 86, 90 (Tex.Crim.App.1983). In Turner, a murder prosecution, the court found the evidence insufficient to support an affirmative finding that the defendant’s fist and hands were deadly weapons as they were used in the commission of the offense.

In the case at bar, the appellant did not challenge the sufficiency of the evidence to support the trial court’s finding. We, nevertheless, address the issue in the interest of justice to determine whether the finding is supported by sufficient evidence. Howeth v. State, 645 S.W.2d 787 (Tex.Crim.App.1983). An affirmative finding that the appellant used a deadly weapon during the commission of a felony offense makes him ineligible for probation from the court. Tex.Code Crim.Proc.Ann. art. 42.12 sec. 3f(a)(2) (Vernon 1979).

The eyewitness to the incident testified that he saw the appellant push the complainant over the rail and that the appellant used his hands in that action. There was, however, no testimony describing the appellant’s hands or the manner of their use that would support the finding that they constituted a "deadly weapon” within the meaning of the statute. We hold that the evidence is insufficient to support the jury’s finding of the use of a deadly weapon. The double jeopardy clause of the United States Constitution precludes the retrial of this issue. See Burks v. United States, 437 U.S. 1, 10-11, 98 S.Ct. 2141, 2146-2147, 57 L.Ed.2d 1 (1978). Since the state has failed to adequately prove the facts necessary to support the affirmative finding of a deadly weapon for purposes of the statute, it may not have a second opportunity to prove them at a new trial. See Cooper v. State, 631 S.W.2d 508, 513-14 (Tex.Crim.App.1982). Because of this holding, we need not consider the appellant’s contention that he was denied due process because of the state’s failure to include an allegation in the indictment that the appellant’s hands as used constituted a deadly weapon.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.


author: DUGGAN, Justice.

text:
    Ex parte Konstantinos PAPAGEORGIOU.
    No. 01-84-0827-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 7, 1985.

      Rod Borlase, Houston, for relator.
    Jo Nelson, Houston, for respondent.
   OPINION

DUGGAN, Justice.

Original Proceeding on Writ of Habeas Corpus

Relator, Konstantinos Papageorgiou, complains that he has been illegally confined by the Sheriff of Harris County by virtue of an order of commitment issued by the Judge of the 312th Judicial District Court.

On December 18, 1984, the trial court found relator in contempt of its order of January 27, 1984, to pay child support. He was ordered confined to jail for 20 days, and thereafter until such time as he could purge himself of contempt by paying $6,175 in child support, $1000 in attorney’s fees, and courts costs. We granted leave to file this writ of habeas corpus on December 27, 1984, and ordered relator released from jail on bond pending final determination of the matter.

Relator first argues that his confinement is illegal because he was unable to pay his arrearage. A writ of habeas corpus is a collateral attack on the trial court’s order, and it is relator’s burden to demonstrate the impossibility of his performance and that the order is void. See Ex parte Fisher, 146 Tex. 328, 206 S.W.2d 1000 (1947); see also Ex parte Dean, 517 S.W.2d 365 (Tex.Civ.App. — Houston [1st Dist.] 1974, no writ). Therefore, we must examine the testimony adduced at the contempt hearing to determine if relator has discharged his burden to prove that he could not pay the child support as ordered.

The contempt order is both a criminal or penal contempt (20 days confinement), and a civil or coercive contempt (further confinement until relator purges himself by paying the arrearage). For this court to hold the criminal portion of the order invalid, relator must conclusively establish his inability to pay each child support payment as it accrued. Ex parte Cummings, 610 S.W.2d 238 (Tex.Civ.App. — Amarillo 1980, no writ). If he fails to carry that burden as to even one delinquent payment, the criminal contempt judgment is not void. Ex parte Raymer, 644 S.W.2d 889 (Tex.App. — Amarillo 1982, no writ); see Ex parte Townsley, 156 Tex. 402, 297 S.W.2d 111 (1956). For this court to hold the civil portion of the order invalid, relator must conclusively establish that he is unable to pay the delinquency at the time of the contempt hearing, and that he has no source from which he might be expected to obtain the money to discharge the arrear-age. Ex parte Rohleder, 424 S.W.2d 891 (Tex.1968); see generally Ex parte Dustman, 538 S.W.2d 409 (Tex.1976) (one may not be confined indefinitely for contempt when the relator cannot perform the necessary act to purge himself).

Where the party charged with contempt claims that he was financially unable to make the required payment, ordinarily he must establish 1) that he lacked sufficient personal or real property which could be sold or mortgaged to raise the needed sum; 2) that he had unsuccessfully attempted to borrow the sum from financial institutions; 3) and that he knows of no other source, including relatives, from whom the sum could be borrowed or otherwise secured. Ex parte Hennig, 559 S.W.2d 401, 402 (Tex.Civ.App. — Dallas 1977, no writ). He must show without substantial contradiction in the record that he was unable at the time of the hearing to do the act required by the judgment as a condition for release from custody. Ex parte Deckert, 559 S.W.2d 847 (Tex.Civ.App. — Houston [1st Dist.] 1977, no writ).

Relator has filed a statement of facts containing his testimony given at the contempt hearing. He testified that he is employed by Houston Ship, Inc., a marine repair and cleaning service of which he owns 16%. He stated that he has received no salary from the company since February 7, 1984, and that he does not own any real property or anything of value that could be sold or used as collateral. (His 16% interest in the company is already collateral for another loan made to him by one of his business partners). Relator further testified that he was personally liable for a $350,000 corporate debt to Lockwood Bank and that he has over $40,000 in outstanding judgments which he has been unable to satisfy.

However, relator drives a 1983 Datsun car that is owned by the corporation, his gasoline bills are paid by the corporation, and his new wife pays the remainder of his expenses from her income. Relator testified that he had asked one of his business partners for a loan and had been turned down. He did not ask any of his other partners, friends, or relatives for financial assistance, nor had he attempted to borrow the money for his child support from any banks or other lending institutions. There was contradicting evidence as to whether relator asked his present wife for the money-

Relator testified that he had been continuously employed since the time of the divorce for a corporation that he owned in part, and had been working extremely hard, sometimes six or seven days per week, sometimes 24 hours a day, yet he had received no salary since February 1984. Despite the court’s order to pay $675 per month in child support, relator indulged in working for an allegedly indigent corporation, rather than seeking salaried employment elsewhere.

On the basis of the record before this court, relator has not conclusively demonstrated his inability to comply with the court’s order each time the $675 payment came due, nor has he met his burden of showing his inability to pay the arrearage at the time of the contempt hearing. His first point of error is overruled.

Relator’s next point urges error because the trial court did not make specific findings as to each act of contempt, but rather holds him in contempt for failing to pay child support. The order finds relator was charged with contempt in failing and refusing to comply with the

judgment/order of this Court entered on or about the 27 day of January, 1984, wherein the Court ordered her/him to pay the sum of $675.00 each month on the 1st day of each month to Diane G. Papageorgiou for the support of Michael C. Papageorgiou, minor ... and finds that [relator] is guilty of contempt of this Court in that he has failed and refused to pay child support as hereto before ordered in an amount of $6,175.00.

A court may charge in one contempt order an aggregate contempt composed of individual acts specified in the motion for contempt, Ex parte Genecov, 143 Tex. 476, 186 S.W.2d 225 (1945), so long as the relator received sufficient notice of the acts alleged to have been in violation of the prior court order. See, e.g., Ex parte Slavin, 412 S.W.2d 43 (Tex.1967). Similar to an indictment in a criminal case, the motion for contempt or show cause order must give fair notice of the specific matters alleged against the defendant. Ex parte Pyle, 134 Tex. 148, 133 S.W.2d 565 (1939).

We note initially that relator has failed to provide us with the court’s order of January 27, 1984, the motion for contempt, or the show cause order. We have only a statement of facts from the contempt hearing and the contempt judgment/commitment order in the record. That order states specifically what prior court order was at issue, the means by which relator has violated the order, and spells out the terms of compliance. Ex parte Kottwitz, 117 Tex. 583, 8 S.W.2d 508 (1928). It was not necessary for the order to make specific findings as to each contemptuous act.

Relator does not attack any of the acts singularly on any basis other than his inability to pay, and we have overruled that point above. Additionally, relator stipulated to the amount of the arrearage at the contempt hearing. Thus, the evidence from the contempt hearing supports the judgment, indicating that relator was in arrears in his court-ordered support obligation and that appropriate credit had been given. But see Ex parte Proctor, 398 S.W.2d 917 (Tex.1966) (no recitation of ar-rearage). Relator’s second point is overruled.

In relator’s third point of error he contends that he is illegally confined, because the trial court failed to inquire whether relator desired a jury since he was charged with a “serious” offense. The right to a jury trial is guaranteed only for serious offenses, not for petty offenses. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975). Cases of criminal contempt where the sentence does not exceed six months do not constitute “serious” offenses. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). Further, the right to a jury trial in contempt proceedings is dependent solely on the actual punishment imposed, rather than the punishment possible. Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974). Punishment for contempt that does not impose significant confinement may still be a “serious” offense meriting a jury trial if the court has imposed other sanctions such as a large fine. Compare Ex parte Griffin, 28 Tex.Sup.Ct.J. 178 (Dec. 19, 1984) with Ex parte Werblud, 536 S.W.2d 542, 547 (Tex.1976) ($104,000 fine is serious offense, two $500 fines held petty). In this case, relator was ordered confined for only 20 days and no fine was imposed. We do not find this to fall within the category of a serious offense, and the trial court did not err in failing to inquire whether relator desired a jury trial. Relator’s third error is overruled.

Relator’s final point of error complains that the show cause order was defective because it did not give relator notice of possible confinement. We are unable to consider this point because the show cause order is not before us.

The trial court’s order is valid, and relator’s application for writ of habeas corpus is denied. He is remanded to the custody of the Sheriff of Harris County to serve the remainder of his ordered confinement.

WARREN and HOYT, JJ., also sitting.


author: BOYD, Justice. REYNOLDS, Chief Justice,

text:
    Sandra Judy Glenn ASHLEY, et al., Appellants, v. The HOME INDEMNITY COMPANY, Appellees.
    No. 07-83-0195-CV.
    Court of Appeals of Texas, Amarillo.
    Feb. 11, 1985.
    Rehearing Denied Feb. 28, 1985.

      Bean, Francis, Wills & Street, Robert Bean, Dallas, for appellants.
    Gibson, Ochsner & Adkins, S. Tom Morris and Jeffrey C. Voiles, Amarillo, for appellees.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   BOYD, Justice.

Appellants Sandra Judy Glenn Ashley, et al. sued appellee The Home Indemnity Company to recover workers’ compensation benefits that appellee refused to pay. Sandra Ashley’s husband, James Ashley (herein Ashley), was a truck driver for Skaggs Supercenters, Inc. On June 29, 1979 at 5:00 p.m. he left Richardson, Texas for Albuquerque, New Mexico carrying produce for Skaggs in a Skaggs truck. Ashley reversed his course after he got to or near Amarillo. His truck overturned approximately 80 miles east of Amarillo at 12:30 a.m. the next morning. He was killed in the accident. Ashley did not tell anyone why he reversed his course and began driving away from his original destination and toward his point of origination. At trial the jury, in response to the only issue submitted to them, found Ashley’s death occurred in the course of his employment. The trial court granted judgment notwithstanding the verdict in favor of ap-pellee.

Appellants, in their sole point of error, contend that the trial court erred in its action because there was sufficient evidence to support the jury’s verdict. We agree and, accordingly, remand this cause to the trial court for entry of a judgment in accordance with the jury’s verdict and the holding of this Court.

In determining the challenge of appellants, we must decide whether the record contains evidence of probative value which, with the reasonable inferences therefrom, will support the jury’s verdict. In making that decision, it is the duty of this Court to view the evidence in its most favorable light in support of the finding, considering only the evidence and the inferences that support the finding and disregarding all that are contrary thereto. Scott v. Millers Mutual Fire Insurance Co. of Texas, 524 S.W.2d 285, 288, 289 (Tex.1975); Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359, 363 (1957).

James Ashley had been a truck driver for Skaggs Supercenters, Inc. for some six months. His primary responsibility was to haul goods from Skaggs’ Richardson terminal to its outlet in Albuquerque, New Mexico. From Albuquerque he would generally proceed to Liberal, Kansas. At Liberal he would pick up a load and return it to Richardson. On the date in question, he had returned from such a trip about 2:00 a.m. He had made a local delivery, returned to his house, slept about an hour, did some work around the house, and returned to Skaggs’ “yard” to begin another trip. As noted above, about 5:00 p.m. that day, he left Richardson for Albuquerque carrying produce for Skaggs in a Skaggs truck and reversed his course after he got to or near Amarillo. The fatal accident occurred approximately 80 miles east of Amarillo at 12:30 a.m. on June 30, 1979.

After Ashley left Richardson, he was never again in contact with his wife nor with his dispatchers and the record does not reveal what route he took to Amarillo. However, appellee’s witness Robert Bailey, who was a truck driver and relief dispatcher for Skaggs, testified that he had made this run over this exact route. He said that Ashley was dependable, that he showed up for work on time and that he would usually arrive at his destination on time.

Robert Ballard testified that he was the dispatcher on duty the afternoon that Ashley left on the trip in question and that Ashley had no scheduled stops between Richardson and Albuquerque. He said that Ashley was dependable and that he had never had any trouble with Ashley drinking. He also said Ashley would usually leave with a load on time and that he usually arrived at his destination on time. Both Ballard and Bailey testified that they knew of no reason, business or personal, why Ashley reversed his course. Bailey said that normally the trip to Albuquerque and Liberal was made with two drivers because of its length.

Both dispatchers testified that in the event a driver encounters a problem requiring a delay or a detour, standard company procedure would be that the driver call his dispatcher to report the problem. However, Ballard said that the drivers do not always follow the standard procedure. The evidence also shows that Skaggs’ drivers are given credit cards and have access to a WATS line to obtain service assistance in the event of mechanical problems. Neither dispatcher was contacted by Ashley after he left Richardson and no credit card charges were made by Ashley. Ballard testified that he saw Ashley when he left on the trip and that Ashley was not intoxicated at that time. While there is other evidence pertaining to Ashley’s possible intoxication at the time of the accident, appel-lee concedes that this was a fact issue resolved against it by the verdict of the jury-

It is undisputed that Ashley was driving a Skaggs truck on a run for Skaggs at the time of his death. Generally, these facts give rise to a presumption that Ashley was acting in the scope of his employment when the accident occurred. Lumbermen’s Lloyds v. Jones, 153 Tex. 379, 268 S.W.2d 909, 912 (1954); Liberty Mutual Insurance Company v. Preston, 399 S.W.2d 367, 372 (Tex.Civ.App.—San Antonio 1966, writ ref’d n.r.e.). See also Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex.1971); Houston News Co. v. Shavers, 64 S.W.2d 384, 386 (Tex.Civ.App.—Waco 1933, writ ref’d) (in the context of master-servant). This is a rebuttable presumption which vanishes when positive evidence to the contrary is introduced, at which point the burden is back on the plaintiff to produce other evidence. Lumbermen’s Lloyds v. Jones, 268 S.W.2d at 912 (quoting Houston News Co. v. Shavers, 64 S.W.2d at 386).

However, we do not attempt to decide whether a presumption of course and scope of employment arose in this case because the office of such a presumption is to invoke a rule of law that compels the jury to reach that conclusion, in the absence of positive evidence to the contrary from appellees. Having obtained a jury finding that Ashley was injured in the course of his employment, appellants had no need for the presumption to compel the jury to reach that conclusion. Their burden with respect to the scope of employment issue has been satisfied if there is evidence to support the finding that was made. Scott v. Millers Mutual Fire Insurance Co. of Texas, 524 S.W.2d at 288.

Moreover, even assuming arguendo, that any presumption of course of employment had been dispelled by the receipt of evidence to the contrary, the facts upon which such a presumption could have been based have not disappeared but remain in evidence and would support any inferences that may properly be drawn therefrom. Sudduth v. Commonwealth County Mutual Ins. Co., 454 S.W.2d 196, 198 (Tex.1970). Therefore, the question for our decision is whether this record contains evidence of probative value which, with the reasonable inferences therefrom, will support the jury’s finding.

The undisputed evidence that Ashley left in a Skaggs truck on a mission for his employer is a circumstance that could be considered by the jury as evidence of his acting in the course and scope of his employment. See Lumbermen’s Lloyds v. Jones, 268 S.W.2d at 912. That fact, coupled with the evidence that Ashley had been a dependable employee and that the accident occurred on a route normally trav-elled by employees performing the delivery for which Ashley was employed, viewed in its most favorable light, are additional circumstances from which the jury could reasonably infer that the accident occurred while Ashley was within the scope of his employment. The fact that Ashley had turned around and was proceeding back toward Richardson, in the absence of any evidence that the reversal was because of a personal mission or purpose, at most raised a fact issue which was resolved against appellee by the jury.

In support of its position that there is no evidence to support the verdict, appellee places primary reliance upon the holdings of the courts in Lumbermen’s Lloyds v. Jones, 153 Tex. 379, 268 S.W.2d 909 (1954); Hardware Mutual Casualty Company v. McDonald, 502 S.W.2d 602 (Tex.Civ.App.— San Antonio 1973, writ ref'd n.r.e.); Liberty Mutual Insurance Company v. Preston, 399 S.W.2d 367 (Tex.Civ.App. — San Antonio 1966, writ ref d n.r.e.) and Wolverton v. Hartford Accident & Indemnity Co., 254 S.W.2d 834 (Tex.Civ.App. — Amarillo 1952, writ ref d n.r.e.). The facts in each of those cases are distinguishable from those here existent.

In Jones, although the employee was driving a truck owned by and registered in the name of the alleged employer, evidence was produced by the defendant, undisputed by the plaintiff, that at the time in question, the deceased employee was actually employed by another employer. In Preston, the undisputed evidence was that Preston, the deceased employee, had combined personal purposes with a business trip. At the time of his fatal accident, he had turned aside from the business trip to camp at Gamer State Park and had actually been camped there some five days. His fatal injuries occurred at a time when he was travelling from the park to a nearby town at a time when his tent and camping gear were still in the park.

In McDonald, the employee had returned to a cafe bar after he had eaten his normal evening meal, a fact which the court noted made that later trip a purely personal one, and then, without permission from the owner, went along a private dirt road, posted against trespassers, some two hundred yards to the Guadalupe River where he was found drowned the next morning. The court held that the trip to the river, alone and without permission from the owner, could not have had anything to do with the furtherance of his employer’s business.

In Wolverton, the employee was driving his personal automobile at the time of the accident. He was to go to Carlsbad, New Mexico, but the accident occurred while he was going towards Canyon, in a direction opposite from Carlsbad. The actual holding of the court was that the issue as to scope of employment was properly submitted to the jury and was sufficient to sustain the finding of the jury that the employee was not acting in the scope of his employment.

In summary, we remain convinced that, under the standard of review which we must apply, the evidence that Ashley, an admittedly dependable employee, was driving his employer’s vehicle on his delivery mission along a route normally travelled by him and other employees, without any evidence of a personal mission save that he inexplicably reversed his course, is sufficient to support the jury verdict.

Appellant’s point of error is sustained, the judgment of the trial court reversed and the cause remanded to the trial court for entry of a judgment in accordance with the jury finding.

REYNOLDS, Chief Justice,

dissenting.

I respectfully dissent. In my view, the claimants failed to evidence support for the jury’s verdict that the worker’s fatal injury was received in the course of his employment. I, therefore, would affirm the trial court’s take-nothing judgment rendered notwithstanding the jury’s verdict.

James Douglas Ashley, the deceased worker, was employed as a truck driver by Skaggs Supercenters, Inc. His primary responsibility was to haul merchandise in Skaggs’ truck from Skaggs’ Richardson, Texas, terminal to Albuquerque, New Mexico, from whence he usually would travel to Liberal, Kansas, pick up a load of beef and return with it to Richardson. The parties are agreed that Ashley’s normal highway route from Richardson to Albuquerque would take him through Amarillo, Texas, the approximate mid-point about 360 miles east of Albuquerque.

At approximately 5 p.m. on 29 June 1979, Ashley departed the Richardson terminal, driving a Skaggs truck carrying produce and bound for Albuquerque. After leaving the terminal, Ashley never contacted his dispatcher or his wife. The next report of his whereabouts came from the deposition testimony of Joyce Hughey who, accompanied by her husband, Charles Hughey, was driving a truck southeasterly from Amarillo on their way from Colorado to Lone Star, Texas. Mrs. Hughey first saw the truck driven by Ashley as it was coming up behind the truck she was driving southeasterly on U.S. Highway 287 about a mile east of Amarillo.

The two trucks traveled southeasterly along the highway, taking turns passing each other, for some 80 miles. Mr. Hu-ghey, who had been asleep, noticed the truck Ashley was operating some 400 yards ahead about thirty minutes before the accident. Both the Hugheys observed that Ashley was driving straight at a steady speed within the speed limit and never saw anything thrown from Ashley’s truck.

About 12:30 a.m. on 30 June 1979 at a point 2.9 miles west of Memphis, Texas, and some 80 miles southeast of Amarillo, Ashley’s truck left the road and overturned. Ashley was killed. A blood sample analyzed by the Department of Public Safety toxicology laboratory in Austin revealed that at the time of his death, Ashley had a blood alcohol concentration of .24% by weight, which in the opinion of the forensic toxicologist would make a person “blind staggering drunk,” but no intoxicating liquor or containers for it were found at the scene of the accident.

The evidence adduced reveals that Ashley had napped only an hour or so after completing a prior delivery, and was tired, before he began his fatal trip. Skaggs’ standard procedure required a driver to, and Ashley was said to be the type of a driver who would, call his dispatcher to report a problem and ask for instructions, even though delay was not necessarily reported by all drivers. There is no evidence of probative force to show, and at most the mere surmise or speculation of, a business or personal reason for Ashley to turn at mid-point from his course of travel to his assigned destination and retrace the route he apparently had traveled for 80 miles until the accident occurred.

When The Home Indemnity Company, the compensation insurance carrier for Skaggs, refused to pay the claim for death benefits under the workers’ compensation statute, Sandra Judy Glenn Ashley, the surviving widow, individually and as next friend of the Ashleys’ minor children, brought the suit underlying this appeal. The insurance carrier answered, alleging that workers’ compensation benefits were not recoverable because Ashley was not in the course and scope of his employment at the time of his death, and that he was at the time in a state of intoxication.

A jury returned its verdict, answering, in response to the single special issue and instructions submitted, that Ashley received an injury in the course of his employment by Skaggs. Mrs. Ashley and the children moved for judgment on the verdict; the insurance carrier moved for judgment notwithstanding the verdict or, alternatively, for a new trial submitting that there is no evidence to support the jury’s answer, that the evidence conclusively shows Ashley did not receive an injury in the course of his employment, and that the evidence is factually insufficient to support the jury’s answer.

Hearing the motions, the trial court denied Mrs. Ashley’s and the children’s motion and granted the insurance carrier’s motion for judgment notwithstanding the verdict. The court then rendered judgment decreeing that Mrs. Ashley and the children take nothing.

Appealing from the judgment, Mrs. Ashley and the children charge the court with error in granting the insurance carrier’s motion for the reason that there is sufficient evidence to support the jury’s verdict. The insurance carrier commendably concedes that the issue of intoxication was a fact issue decided adverse to its contention and that it will not pursue the matter; however, it urges that Mrs. Ashley failed to carry her burden to prove that Ashley died while acting within the course and scope of his employment.

As defined in the Workers’ Compensation Act, an “injury sustained in the course of employment” is one of the kind and character having to do with and originating in the work, business, trade or profession of the employer and is sustained while the worker is engaged in or about the furtherance of his employer’s affairs or business, whether upon the employer’s premises or elsewhere. Tex.Rev.Civ.Stat.Ann. art. 8309, § 1 (Vernon 1967); Texas General Indemnity Company v. Bottom, 365 S.W.2d 350, 352-54 (Tex.1963). Generally, an injury received by a worker while traveling on a public highway is not incurred in the course of employment, Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 242 (1942); however, if the injury is sustained while the worker is traveling on a highway in transportation furnished as a part of his contract of employment, or when the worker is directed in his employment to proceed from one place to another, the injury is sustained in the course of employment. Tex.Rev.Civ.Stat.Ann. art. 8309, § 1b (Vernon 1967); Safety Casualty Co. v. Wright, supra. The claimant of workers’ compensation benefits has the burden to establish that the injury was sustained in the course of employment. Scott v. Millers Mutual Fire Insurance Co. of Texas, 524 S.W.2d 285, 288 (Tex.1975); Texas General Indemnity Company v. Bottom, supra.

Applying these principles to the undisputed facts, it is certain that when Ashley, as directed, left the terminal in transportation furnished by Skaggs and traveled the highway toward Albuquerque in furtherance of Skaggs’ business, he was in the course and scope of his employment. Yet, at the approximate mid-point of travel to his directed destination, he inexplicably reversed his course and traveled in the direction he had come for some 80 miles until he sustained his fatal injury. The question, then, is: What is the effect of Ashley’s unexplained 80-mile reversal of his directed course of travel?

Mrs. Ashley and the children contend that since there is no evidence that Ashley’s course reversal was for the purpose of a personal errand, the jury could conclude that he still was in his course and scope of employment at the time of his death. In so contending, the insurance carrier asserts, Mrs. Ashley and the children ignore their burden to establish that Ashley’s fatal injury was sustained in the course of his employment; and, since they did not produce any evidence of a business reason for Ashley’s 80-mile reverse deviation from his assigned route, they failed to carry their burden of proving that he died while acting within the course and scope of his employment.

I, agreeable to the trial court’s decision, would hold that Mrs. Ashley and the children failed as a matter of law to discharge their burden to establish that Ashley’s fatal injury was sustained in the course of his employment. Although Ashley’s operation of the truck to Amarillo was within the course and scope of his employment, his unexplained 80-mile reversal of course to his death raised the issue whether he was at that time in the course and scope of his employment by Skaggs. This obtains because the evidence reveals that Ashley was not directed in his employment to retrace his route upon reaching Amarillo, and that his injury did not occur at a place he should have been on the normal route and direction of travel in the furtherance of Skaggs’ business of having the produce he was hauling delivered to Albuquerque.

The reversal-of-course evidence rebutted any presumption of course of employment at the time of Ashley’s fatal injury, if the presumption could arise in this case, for that evidence shows his injury was sustained at a place where he properly would not be after reaching Amarillo under his direction to proceed from the Richardson terminal to Albuquerque. Cf. Scott v. Millers Mutual Fire Insurance Co. of Texas, supra, (reciting case holdings that where an employee is found dead at a place where his duties require him to be, or where he might properly have been in the performance of his duties, during the hours of his work, and there is an absence of evidence that he was not engaged in his master’s business, there is a presumption that the accident arose out of and in the course of his employment within the meaning of the compensation statute; and, also, recognizing that the presumption is rebuttable). Then, to discharge their burden of proof, Mrs. Ashley and the children had to produce evidence to support the jury’s finding that Ashley received an injury in the course of his employment by Skaggs, id., i.e., that his injury was of a kind and character that had to do with and originated in the work, business, trade or profession of his employer, Skaggs, and was received while he was engaged in or about the furtherance of Skaggs’ affairs or business. Texas General Indemnity Company v. Bottom, supra, at 354.

Mrs. Ashley and the children concede that “there is no evidence why Ashley reversed course.” It follows that under the circumstances recorded, they did not produce any evidence of probative force to show that at the time of Ashley’s death, he was in the course of his employment; and, therefore, the trial court’s granting of the insurance carrier’s motion for judgment notwithstanding the jury’s verdict was correct. Id.

Accordingly, I would affirm the trial court’s take-nothing judgment.


author: WARREN, Justice.

text:
    Robert Carlton LEONARD, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0238-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 14, 1985.

      Jim Steele, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., Carol Cameron, Asst. Dist. Attys., Houston, for appellee.
    Before WARREN, DUGGAN and HOYT, JJ.
   OPINION

WARREN, Justice.

On a plea of guilty, the court found appellant guilty of evading arrest and assessed his punishment at 90 days in jail. We affirm.

Appellant’s sole ground of error urges that the trial court erred in overruling the motion to dismiss the information under Tex.Code Crim.P.Ann. art. 32A.02 (Vernon Supp.1984), the Texas Speedy Trial Act.

On April 20,1983, appellant was arrested and charged by information with the offense of evading arrest, a misdemeanor.

Appellant posted bond, but failed to appear at an April 27 court setting or at a May 5 setting. On the latter date, the judge forfeited the bond and issued a capi-as for appellant’s arrest.

Appellant was rearrested on January 3, 1984. After nine agreed resettings, the case was tried on April 4.

At a hearing on appellant’s motion to dismiss because of the state’s noncompliance with the Texas Speedy Trial Act, the prosecutor testified that the state had been ready at all times since April 20, 1983. Testimony was also adduced showing that from April 1983 until January 1984, appellant’s bondsman or parole officer could not locate him, that appellant used several aliases and was in fact arrested by Houston Police Officer Wendall Kendrick for unrelated offenses in June 1983.

Appellant contends that since he was not in custody at the time the state announced ready, the announcement was a nullity; therefore, the burden was on the state to show that it exercised diligence in attempting to rearrest appellant during his nine-month absence and thereby show an exception under the Speedy Trial Act.

Generally the state’s announcement of ready within the statutory time period establishes a prima facie showing of compliance with the Speedy Trial Act. Barfield v. State, 586 S.W.2d 538 (Tex.Crim.App.1979). Once the state announces ready, the burden shifts to the defendant to show that the state was not ready during the statutory time period. Barfield, 586 S.W.2d at 542. An accused’s absence effectively rebuts the prima facie showing of readiness made by the state. Newton v. State, 641 S.W.2d 530 (Tex.Crim.App.1982). The burden then shifts back to the state to prove excludable periods of delay that would extend the initial time limitation. Newton, 641 S.W.2d at 530.

The state contends that under the provisions of article 32A.02, section 4(4)(A), the period from April 20, 1983, to January 6,1984, should be excluded from the 60-day time limit requirement because the appellant’s location was unknown and he was attempting to avoid apprehension or prosecution. We agree. Article 32A.02 provides in part:

Sec. 4. In computing the time by which the state must be ready for trial, the following periods shall be excluded:
(4) a period of delay resulting from the absence of the defendant because his location is unknown and:
(A) he is attempting to avoid apprehension or prosecution; or
(B) the state has been unable to determine his location by due diligence.

The statute provides that in addition to the requirement that the defendant’s location was unknown, the state must prove either that the defendant was attempting to avoid apprehension, or that the state was unable to determine the defendant’s location by due diligence. The state chose to prove an exception under subsection 4(4)(A).

The record reflects that the only address given by the appellant when he was arrested on April 20, 1983, was an address that did not exist, and that the state did not know of the appellant’s whereabouts once he left jail. The record also reflects that on June 22,1983, Officer Kendrick arrested a Robert Ray Shelby, who was actually the appellant. Officer Kendrick was aware that the appellant was also called “Beeper Bob” and “Robert Racio,” but he was not aware that “Beeper Bob” was also known as Robert Carlton Leonard and Robert Wilmer Schmalsried. The appellant was then on parole under the name Schmalsried, but failed to maintain contact with his parole officer. When the appellant was arrested on June 22, he was not formally charged because he gave the police information that helped destroy a methamphetamine manufacturing operation.

Officer Kendrick again encountered the appellant during a drug investigation on December 7, 1983. On that date he understood the appellant’s name to be Robert Wilmer Schmalsried. Officer Kendrick attempted to arrest the appellant, but the appellant escaped in a blue Camaro. Officer Kendrick wrote the number of the license plate and found that the car belonged to the appellant’s sister. However, her address was also nonexistent.

An informant told Officer Kendrick that the appellant would often stay at the Dun-fey Hotel. When Officer Kendrick found the blue Camaro at the hotel, he set up surveillance, saw appellant come out of the hotel, and arrested him. The appellant’s room at the hotel was registered under the name Bob Mennick. At the time of arrest, appellant was carrying an identification card with the last name “Rossman,” although the evidence did not conclusively establish that the appellant also used that name.

In Hamilton v. State, 621 S.W.2d 407 (Tex.Crim.App.1981), the court held that when a defendant was in jail under an assumed name because of an unrelated charge, and the prosecutor was unaware of those facts, the court could have concluded that the defendant’s use of an assumed name was to avoid prosecution for the offense in which he was charged. We find that under the circumstances of this case, the trial court could have concluded that the appellant was attempting to avoid prosecution. The appellant used several assumed names. He attempted to avoid apprehension on December 7 and succeeded. He listed a fictitious address when he was originally arrested. He drove a car which was also listed under a fictitious address. Finally, although he was on parole for another offense, under a different name, he failed to maintain contact with his parole officer. The evidence is sufficient to support a finding that the appellant, by using several assumed names and listing a nonexistent address, was attempting to avoid apprehension or prosecution. Therefore, the trial court correctly excluded the period from April 27, 1983, to January 6, 1984, from the calculation of the 60-day period. Further, since the defendant voluntarily absented himself and failed to appear at the court settings, the state was not required to show diligence or establish an exception to the Speedy Trial Act. Appellant’s ground of error is overruled.

In view of our disposition of this ground of error, we need not consider the state’s contention that the Speedy Trial Act is unconstitutional.

The judgment is affirmed.