author: DIES, Chief Justice.

text:
    William Danny PRUDHOMME, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-180-CR.
    Court of Appeals of Texas, Beaumont.
    Sept. 26, 1984.
    Rehearing Denied Oct. 10, 1984.

      Victor Meroney, Beaumont, for appellant.
    John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury of aggravated assault. After the verdict of guilty, though appellant had previously elected to have punishment assessed by a jury, the trial court withdrew the penalty phase of trial from jury consideration and assessed a life sentence. Appeal has been perfected to this Court.

Appellant’s first ground of error follows:

“The trial court erred by withdrawing the assessment of punishment from the jury because a question of fact existed for jury determination.”

After the trial court believed appellant had admitted to final convictions in two prior felonies, the trial court withdrew the consideration of sentence from the jury and imposed a life sentence on appellant as an habitual criminal. Appellant relies upon Washington v. State, 654 S.W.2d 10 (Tex.App.—Corpus Christi 1982, no writ), that the jury could disbelieve the admissions of a defendant as to the truth of the enhancement allegations. That ease does squarely stand for the proposition urged by appellant:

“We are of the opinion that the trial court erred in withdrawing the question concerning appellant’s prior convictions from the jury. Even though he had admitted to them from the witness stand, a question of fact still existed.”

Washington, supra.

Unfortunately for appellant, this holding conflicts with a prior decision of our Court of Criminal Appeals. Ballard v. State, 438 S.W.2d 924, 926 (Tex.Crim.App.1969): .

“In cases where the alleged prior convictions are admitted by the accused, the issue [of enhancement] need not be submitted to the jury, [citations omitted]”

This ground of error is overruled.

Appellant’s second ground of error follows:

“The trial court erred by assessing Appellant’s punishment at life when the record contains insufficient evidence to prove the habitual offender allegations in the indictment.”

The record reveals the following testimony:

“Q I would like to ask you a couple of questions now, Mr. Prudhomme. I want to ask you, first of all, if you are the same William Danny Prudhomme who was convicted on August 9, 1976, for the felony offense of burglary of a vehicle in cause number 32,255 in the Criminal District Court of Jefferson County, Texas, and sent to prison for a term of .10 years Are you the same William Danny Prudhomme?
“A Yes.
“Q I would like to ask you if you are also the same William Danny Pru-dhomme that was finally convicted on September 26, 1980, in cause number 38,695 in the Criminal District Court of Jefferson County, Texas, for the offense of burglary?
“A Yes.
⅝ sfc ⅝ ⅝ ⅜ ⅝
“Q Both these offenses for which you were finally convicted and sent to the penitentiary for, did they occur before this offense for which you are being tried now?
“A Yes, they did.
“Q Both final, you have been to the penitentiary and out on each of those offenses on separate dates? [emphasis supplied]
“A Yes, sir.”

The sequence was thus established. Appellant went to prison for the first conviction and was released. It follows that the second offense occurred after the first conviction became final. See Peters v. State, 575 S.W.2d 560 (Tex.Crim.App.1979). This ground of error is overruled.

Appellant’s final ground of error concerns prosecutorial argument. We find that the argument was improper but the court sustained Appellant’s objection and charged the jury to disregard the argument. The argument was cured by the instruction. Stone v. State, 510 S.W.2d 612 (Tex.Crim.App.1974). See also 26 TEX.JUR.3d Criminal Law secs. 39⅛6 and 39⅛7 (1983). This ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    Robert George DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 12-82-0065-CR.
    Court of Appeals of Texas, Tyler.
    Sept. 28, 1984.

      Grady Inzer, Longview, for appellant.
    Carter Beckworth, Dist. Atty., Longview, for appellee.
   SUMMERS, Chief Justice.

Appellant Robert George Duncan was convicted for possession of over four ounces of marihuana; punishment was assessed by the jury at two years confinement. Duncan brings three grounds of error. He asserts the trial court erred by not suppressing seven bags of marihuana (totaling approximately 9.6 ounces) which were seized during a routine inventory search from the locked glove compartment of the car he was driving. He also claims the jury charge was improper because it included an instruction on joint possession which was at variance with the indictment and pleadings. Finally, Duncan contends that the evidence offered by the State was merely circumstantial and therefore insufficient to support the conviction for possession of marihuana. We affirm the conviction.

On July 8, 1981, two officers of the narcotics unit of the Longview Police Department, who were dressed in plain clothes and driving an unmarked car, noticed a weaving automobile traveling south on High Street in Longview, Texas. The officers stopped the car and pulled up behind it. They approached the vehicle and showed their police badges to Duncan, who was driving the automobile, and the passenger. After identifying themselves as policemen, they asked Duncan and the passenger to step out of the car. The officers observed that both men were incoherent and appeared to be drunk. One officer began a conversation with Duncan to discuss his erratic driving. During this conversation the officer looked inside the automobile and smelled the odor of burnt marihuana. Duncan was arrested for driving while intoxicated.

The officers asked Duncan if he would consent to a search of the automobile. Duncan objected and the officers did not conduct one at the scene of the arrest. Since there was no one with whom the officers could entrust the automobile, one of the officers obtained the keys and drove the car to the Longview city jail where it was impounded and placed in police custody. Pursuant to the standard procedures of the Longview Police Department, the officers inventoried the automobile at the station house. The officers did not obtain a warrant before inventorying the car. The officers used the keys to unlock the trunk and the glove compartment to inventory them. Seven bags of marihuana were discovered inside the locked glove compartment. The officers also found a roach clip attached to one of the sun visors of the car. The bags of marihuana were placed in a manila envelope and put in an evidence locker at the police station for safekeeping.

Duncan did not make a pretrial motion to suppress the evidence found during the inventory, although he did object to the introduction of the evidence when it was offered at trial on the ground that the warrantless search and seizure was illegal. See, e.g., Roberts v. State, 545 S.W.2d 157 (Tex.Cr.App.1977). Duncan argued that the automobile was in police custody and therefore the officers had ample opportunity to obtain a warrant. The trial judge overruled his objection and his ground of error on appeal reads as follows: “The warrantless stopping and arrest was without probable cause, and the subsequent warrantless search and seizure was illegal, and the poisoneous [sic] fruits should have been excluded.”

We must initially determine which law controls the disposition of the search and seizure aspect of this case. While the search and seizure provisions of the Texas and Federal Constitutions are substantially similar, the Federal Constitution merely sets minimum standards and nothing prohibits the Texas Constitution from providing greater protections. We must therefore determine whether the protections furnished by the Texas Constitution are any greater than those provided by the Federal Constitution.

The United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000, opinion on remand, 247 N.W.2d 673 (1976), explicitly approved the taking of an inventory of a legally impounded vehicle. That case involved a locked automobile which was impounded and towed to the city impound lot because it was illegally parked. A Vermillion, South Dakota, police officer unlocked the car door and, using an inventory form pursuant to standard police procedures, inventoried the contents of the car including the contents of the unlocked glove compartment in which the officer found a plastic bag containing marihuana. In construing the fourth amendment of the Federal Constitution, the Supreme Court held that inventories of lawfully impounded automobiles, including an unlocked glove compartment, are not unreasonable intrusions of one’s expectation of privacy. The Court reasoned that inventories fulfill three specific needs: the protection of the owner’s property while it remains in police custody; the protection of the police against claims or disputes over lost or stolen property; and the protection of the police from potential danger. Opperman, 428 U.S. at 369, 96 S.Ct. at 3097. The Court recognized that standard inventories have been viewed as essential to protect against theft or vandalism and often include a search of the glove compartment since valuables and documents are usually placed there. Such a search is justifiable and not unreasonable because vandals would have ready access to valuables stored in the glove compartment once they broke into the car. Id. at 375 n. 10, 96 S.Ct. at 3100 n. 10.

Unfortunately, the Supreme Court in Op-perman did not express an opinion on whether the police could open and search the glove compartment if it is locked. See United States v. Opperman, 428 U.S. 364, 385 n. 1, 96 S.Ct. 3092, 3105 n. 1, 49 L.Ed.2d 1000 (1976) (Marshall, J., dissenting). However, the harbinger of the Opperman case, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), did involve a search of a locked trunk. The automobile in Cady was impounded and towed to a private garage. The automobile was owned by a Chicago policeman and officers conducting the search had reasonable grounds to believe that a service revolver was in the car’s trunk. However, there was no probable cause to believe that the trunk contained fruits of a crime and the sole justification for the warrantless search was that it was incident to the caretaking function of the local police to protect the community’s safety. Many federal courts of appeal have allowed inventories of locked trunks since Opperman was decided. See, e.g., United States v. Orozco, 715 F.2d 158, 161 (5th Cir.1983); United States v. Hall, 565 F.2d 917, 921 (5th Cir.1978).

The first Texas case to follow Op-perman was Robertson v. State, 541 S.W.2d 608 (Tex.Cr.App.1976), cert. denied, 429 U.S. 1109, 97 S.Ct. 1145, 5 L.Ed.2d 563 (1977). In that case Robertson drove his car into a utility pole and he was rendered unconscious. Robertson was taken by ambulance to a local hospital and his car was towed by a private wrecking company to a garage. Before the car was towed, the police inventoried the car and found marihuana in the unlocked glove compartment. The Court of Criminal Appeals concluded that the ease was governed by South Dakota v. Opperman and that “in following standard police procedures, the conduct of the police was not unreasonable under the Fourth Amendment.” Robertson, 541 S.W.2d at 611. The majority opinion in Robertson did not mention the Texas Constitution and made no references to any protections provided by the state constitution which are not provided by the federal constitution. In all the cases involving the inventory of an impounded automobile decided by the Texas Court of Criminal Appeals since Robertson, we are unable to find one which treats the Texas Constitution any differently than the United States Constitution. See, e.g., Backer v. State, 656 S.W.2d 463 (Tex.Cr.App.1983). We therefore conclude that art. I, sec. 9 of the Texas Constitution is co-extensive with the fourth amendment of the United States Constitution.

The question then is whether an inventory of a locked glove compartment of a lawfully impounded automobile is a reasonable search under the fourth amendment. In Guillett v. State, 651 S.W.2d 902, 903 (Tex.App.—Houston [1st Dist.] 1983, pet. granted), the court ruled that the inventory search of the locked glove compartment of an impounded automobile constituted an unlawful intrusion of one’s right to be secure against unreasonable searches under the Texas and United States Constitutions. After determining that the automobile was lawfully impounded when the driver was arrested for driving while intoxicated, the court reasoned that “since the glove compartment was locked ... it is unlikely that police would be charged with losing or misappropriating property found therein, and the possibility of vandalism ... is sufficiently minimized so that the purposes of the inventory search are not sufficient to outweigh the appellant’s reasonable expectation of privacy in the locked compartment.” Guillett, 651 S.W.2d at 904. We do not agree with the reasoning of the Houston Court of Appeals.

Chief Justice Burger, while writing for the Court in Opperman, stated that “[i]n applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.” Opperman, 428 U.S. at 373, 96 S.Ct. at 3099. The Court rejected the argument that the car was secure since the doors were locked and the windows were rolled up. It also rejected the lesser intrusive means of turning back vandals by placing guards at the storage lot since “that alternative may be prohibitively expensive, especially for smaller jurisdictions.... There is thus a substantial gain in security if automobiles are inventoried and valuable items removed for storage.” Id. at 379, 96 5.Ct. at 3102.

If the primary rationale for inventory searches is to promote security for the automobile and the contents located therein and it is not unreasonable for the police to unlock the car door and inventory the contents inside, including those in an unlocked glove compartment, it is also not unreasonable for the police to unlock a locked glove compartment in order to inventory the contents therein. It is unlikely that a vandal will be deterred from breaking a glove compartment lock once he has gained entry into the car by breaking the door lock or window. Justification for the inventory of a locked glove compartment also does not depend upon “loose” articles being within the plain view of a police officer. Valuables and important papers are often stored in locked glove compartments and that is certainly within the common knowledge of any would-be vandal. A vandal would not necessarily need the impetus of articles in plain view to be motivated to break into the car in order to survey the contents of a glove compartment. In weighing the danger of theft and vandalism of an impounded automobile against Duncan’s reasonable expectation of privacy in the locked glove compartment, it cannot be said that the Longview police officers acted unreasonably when they conducted an inventory search of Duncan’s locked glove compartment.

The Houston Court of Appeals reasoned that its holding in Guillett was compelled by the case of Gill v. State, 625 S.W.2d 307 (Tex.Cr.App.1980). However, the Gill case did not involve a true inventory. The question presented in the majority opinion was whether the officers had probable cause to break into the locked trunk of an automobile after finding a small quantity of suspected contraband in the passenger compartment. The court held that “the existence of probable cause to search the interi- or of an automobile is not necessarily sufficient to justify the search of the trunk.” When the State tried to justify the search of the locked trunk in Gill as a routine inventory search, the Court of Criminal Appeals wrote, "... there was no proof that an inventory of the car was in fact conducted. The burden is on the State to prove a proper inventory.” Id. at 312. The search of the trunk in Gill occurred after the officers were unsuccessful in obtaining the keys to the trunk from the arrested driver. They forced their way into the trunk by having the tow truck driver remove the back seat so that the officers could look into the trunk from the inside of the automobile. It is clear from the Gill opinion that standard police procedures were not observed when the car was inventoried and that the inventory was in reality nothing more than a sham. At least one Texas Court of Appeals has refused to follow Gill where there is no evidence of forced entry into a locked trunk. See Martinez v. State, 644 S.W.2d 104, 110 (Tex.App.—San Antonio 1982, no pet.).

We therefore hold that the inventory of the lawfully impounded automobile in the case at bar was conducted pursuant to standard police procedures and was not unreasonable under the fourth amendment of the United States Constitution. Therefore, the marihuana found during inventory was properly introduced at trial.

Duncan’s next ground of error charges that the court erred in submitting a charge on joint possession which was at variance with the indictment and pleadings of the State. The court’s instruction reads as follows: “You are further instructed that possession of the alleged marihuana need not be exclusive, and evidence which shows that the Defendant jointly possessed it with another is sufficient. The mere presence of the Defendant at a place where the alleged marihuana is possessed does not, in itself, justify a finding of joint possession.”

In order to establish the unlawful possession of a controlled substance, the State must prove two elements: (1) that the accused exercised care, control and management over the contraband, and (2) that the accused knew that the matter possessed was contraband. It is not necessary to prove that the accused had exclusive possession of the narcotics in question. Deshong v. State, 625 S.W.2d 327 (Tex.Cr.App.1981). In essence, Duncan argues that since the indictment stated that “Robert George Duncan did then and there knowingly and intentionally possess a usable quantity of marihuana of more than four ounces,” it was error to submit the joint-possession instruction because it did not conform to the indictment. We cannot agree. The indictment properly charged Duncan with the offense of possession of marihuana. The jury instruction regarding joint possession did not affect the State’s burden to prove that Duncan was beyond a reasonable doubt in actual care, custody, control or management of the marihuana as required by Art. 4476-15, sec. 1.02(23) of the Texas Controlled Substances Act. Duncan’s second ground of error is overruled.

Finally, Duncan contends that the evidence submitted against him was merely circumstantial and therefore insufficient to support his conviction. While it is true that the mere presence of the accused at the place where the controlled substance is located is not in itself sufficient to link the accused to the contraband, additional facts, such as exclusive possession of the place where the substance is found, can be used to indicate the accused’s knowledge and control of the contraband. Shortnacy v. State, 474 S.W.2d 713 (Tex.Cr.App.1972). Where the accused is the driver of the automobile in which the contraband was found, sufficient circumstances exist for the jury to conclude that the accused has dominion, control and possession over the place where the contraband is located and therefore has exercised care, control and management over the contraband itself. Aldridge v. State, 482 S.W.2d 171 (Tex.Cr.App.1972).

Although the State did not attempt to prove that Duncan owned the car in which the marihuana was found, the evidence is uncontradicted that Duncan was driving the automobile and therefore had exclusive possession of it. Furthermore, the officers smelled the odor of burnt marihuana inside the automobile which supports the jury’s finding that Duncan had knowledge that the marihuana was located therein. We therefore overrule Duncan’s last ground of error.

For the reasons stated, we affirm the judgment of the trial court.

      . At Duncan's trial, one of the officers who conducted the inventory testified as follows:
      Q. All right. Did you conduct a routine search of the vehicle?
      A. Yes, I did. Both me and my partner conducted a search of the car — we do this for an inventory purpose as standard procedure on all the vehicles that we bring in. We inventory the contents in case there is something say of considerable value we will know that it’s in the car. It protects the officer is what it does.
      The other officer later testified as follows:
      Q. Okay. What did you do with the car at the police station?
      A. We did an impound sheet on it.
      Q. Okay. Is this a usual procedure?
      A. Yes, ma’am.
      Q. And what is an impound sheet?
      A. It’s where we go through the car and write all the stuff that’s in the car down on a piece of paper to insure that when it leaves the next [sic] that it’s still there — they have a check list to go by.

      . Article 1, section 9 of the Texas Constitution provides:
      The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
      The fourth amendment of the United States Constitution reads:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      The fourth amendment is applicable to the states through the fourteenth amendment of the United States Constitution. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . It should be noted at the outset of this discussion that Duncan has failed to state on which constitution he is relying. Nevertheless, the actions of the police are regulated by both constitutions and a violation of either by the police would result in a reversal of Duncan’s conviction. Neither the State nor Duncan has argued that the protections provided by the Texas Constitution are any different than the protections given by the fourth amendment of the Federal Constitution.

      . After the United States Supreme Court determined that the fourth amendment had not been violated, on remand the South Dakota Supreme Court concluded that "as a matter of protection under S.D. Const., art. VI, § 11, ‘minimal inter-' ference’ with a citizen's constitutional rights means that noninvestigative police inventory searches of automobiles without a warrant must be restricted to safeguarding those articles which are within plain view of the officer’s vision." State v. Opperman, 247 N.W.2d 673, 675 (S.D.1976) (emphasis added).

      . Because we hold that the inventory search of Duncan’s locked glove compartment did not violate his constitutional rights, we do not decide whether the search might be justified on alternative grounds, e.g., a search incident to an arrest, New York v. Belton, 453 U.S. 950, 102 S.Ct. 26, 69 L.Ed.2d 1036 (1981); or a search based upon probable cause, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). However, the officers did smell the odor of burnt marihuana in the car and that is enough to justify "a man of reasonable caution and prudence to believe he will find the instrumentality of a crime or evidence pertaining to a crime” in the locked glove compartment. Moulden v. State, 576 S.W.2d 817, 819 (Tex.Cr.App.1978) (quoting Brown v. State, 481 S.W.2d 106, 110 (Tex.Cr.App.1972)).

      . Contra United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed. 572 (1982).


author: ROWE, Justice. AKIN, Justice,

text:
    Jack DELAPORTE, Appellant, v. PRESTON SQUARE, INC., Irwin H. and Michelle Mittelman, Appellees.
    No. 05-83-00767-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 1, 1984.
    Rehearing Denied Oct. 31, 1984.

      William C. Odeneal, Odeneal & Odeneal, Dallas, for appellant.
    Jeff Joyce, Winstead, McGuire, Sechrest & Minick, Dallas, for appellee Preston Square, Inc.
    Charles S. Fuquay, Moseley, Jones, Allen & Fuquay, Dallas, for appellees Mittelman.
    Before AKIN, VANCE and ROWE, JJ.
   ROWE, Justice.

Preston Square, Inc., the homeowner’s association for the Preston Square town-home development, sued Jack Delaporte to require him to remove certain additions to his townhouse which were purportedly in violation of deed restrictions. Irwin and Michelle Mittelman, Delaporte’s next-door neighbors, intervened as plaintiffs. They alleged, in addition to those matters alleged by Preston Square, that the additions in question constituted a common-law nuisance. After a jury trial, the trial judge ordered the improvements demolished. We affirm the trial court’s judgment.

Delaporte and the Mittelmans owned adjacent residences in the Preston Square townhome development which were subject to certain restrictions outlined in a document called “Declaration of Covenants, Conditions and Restrictions for Preston Square Townhomes.” Although the applicable restrictions prohibited townhome owners from making additions to their residences absent approval from the Preston Square Board of Directors, Delaporte built the wall in question and installed outdoor lighting without Board approval. This suit ensued. In answer to special issues, the jury found that the additions in question did not conform to the common scheme and architectural design of Preston Square, that the Board of Directors acted in good faith and in a reasonable manner in rejecting Delaporte’s proposal for these additions, and that the Board did not waive its right to complain of the improvements. The jury also found that the privacy wall constituted a nuisance. Acting upon these findings, the trial judge ordered Delaporte to remove the unapproved additions from his property.

Delaporte first argues that he was unduly prejudiced in front of the jury by questions posed to him and to another witness by the trial judge concerning the possibility that this controversy might have been settled by arbitration. He asserts that these questions improperly suggested to the jury that he had somehow failed to do an act required of him and that these questions by the judge were a comment on the weight of evidence. We disagree. Although a trial judge should remain impartial and not act as an advocate for either party, Ex parte Joellen Finn, 615 S.W.2d 293, 296 (Tex.Civ.App.—Dallas 1981, no writ), it is well within his duty to elicit testimony from a witness in an attempt to clarify evidence adduced at trial. Henderson-Bridges, Inc. v. White, 647 S.W.2d 375 (Tex.App.—Corpus Christi 1983, no writ). Here, the record shows that the trial judge merely asked the witnesses if anyone had ever asked for arbitration of this or any other dispute under the arbitration provisions of the Declaration containing the restrictions. The testimony in response to these questions indicated that either party could have sought arbitration but chose not to do so. In our view, no harm is shown because the Declaration had been introduced into evidence and the trial judge was merely attempting to clarify some of its terms which otherwise might have presented problems for the jury. Thus, Dela-porte’s contention is without merit.

Delaporte next contends that the court should have granted his motion for mistrial based upon a question asked of him by opposing counsel. Specifically, Del-aporte objected to an inquiry concerning whether he had been informed by his attorney that Preston Square had rejected his proposed additions before he began work on them. He says that this question improperly delved into matters protected by the attorney-client privilege. We do not agree that these circumstances mandated a mistrial. In this respect, Delaporte admits in his brief that he answered a question to the same effect during a deposition without objection. Consequently, his failure to assert the attorney-client privilege at the time of his deposition resulted in a waiver of the matter being protected by the attorney-client privilege. See, Eloise Bauer and Associates v. Electronic Realty Associates, Inc., 621 S.W.2d 200 (Tex.Civ.App.—Texarkana 1981, writ ref’d n.r.e.). Additionally, the trial court sustained Dela-porte’s objection to the question. Thus, he was not forced to testify concerning the allegedly privileged matter. Additionally, if any error existed in the asking of the question, it was cured by the court’s instruction to the jury to disregard' it.

Next, Delaporte asserts that the trial judge erred in failing to grant him leave to file a third-party action against three individual members of the Preston Square Board of Directors. A reading of this pleading reveals that Delaporte was attempting to recover damages for malicious prosecution by them. The trial judge correctly denied Delaporte leave to file the third-party action because an essential element for maintaining a suit for malicious prosecution is proof the suit upon which the action is predicated has been terminated in his favor. E.g. James v. Brown, 637 S.W.2d 914 (Tex.1982); RESTATEMENT TORTS 2d § 120 (4th ed. 1971). Obviously, this essential element could not exist since the suit from which this appeal has been taken was still in progress and a favorable termination of this suit in Delaporte’s favor is a condition precedent to bringing a suit for malicious prosecution. Thus, Dela-porte’s cause of action, if any, was premature.

Delaporte also challenges the trial court’s refusal to allow a proposed witness, Harry Groce, to testify. Delaporte’s bill of exceptions shows that Groce, the owner of three Preston Square townhomes, did not believe that the wall added by Delaporte was violative of the general architectural scheme of the community. The record also reveals that this testimony was not admitted because the trial judge concluded that Groce would be testifying as an expert witness and that Delaporte had not before trial, as required by the rules, identified Groce as that type witness. Although we doubt the correctness of this ruling, we need not pass on whether Groce was an expert witness rather than a mere fact witness because error, if any, was harmless. In this respect, Delaporte was allowed to adduce other testimony to the effect that the wall in question conformed with the architectural scheme of Preston Square. Thus, Groce’s testimony would have been cumulative and would not likely have caused the jury to answer the special issue in favor of Delaporte. See, Holloway v. Har-Con Engineering Company, Inc., 563 S.W.2d 695 (Tex.Civ.App.—Houston [14th Dist.] 1978, writ ref’d n.r.e.).

We now turn to Delaporte’s contention that the court erred in denying him leave to file a trial amendment seeking a declaratory judgment as to exactly which portions of the wall in question were not in compliance with the applicable restrictions. The trial amendment was not tendered until after the case had been submitted to the jury. No error exists because the filing of a trial amendment is within the sound discretion of the trial court, Burnett v. File, 552 S.W.2d 955 (Tex.Civ.App.—Waco 1977, writ ref d n.r.e.), which discretion was not abused in light of the fact that the amendment was tendered after the case had been submitted to the jury. Myers v. Cliff Hyde Flying Service, Inc., 325 S.W.2d 841 (Tex.Civ.App.—Houston 1959, no writ).

Finally, Delaporte argues that the evidence does not support the jury findings that the additions were not in keeping with the architectural scheme of the development, that the plans for the addition were rejected on a reasonable basis and in good faith, that the wall constituted a nuisance, and that Preston Square did not waive its right to object to his proposed additions. He says that these findings, which formed the basis for the judgment, were against the great weight and preponderance of the evidence. We are mindful that in ruling on the propriety of jury findings, we must exercise restraint and not substitute our judgment for that of the jury unless the evidence shows its finding to be clearly wrong or unjust. In Re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We have reviewed the entire statement of facts and are of the opinion that the findings in question are supported by sufficient, competent evidence.

In support of our holding, we will not recite all of the evidence in the record, however, we would point out that a number of photographic exhibits are present which illustrate both Delaporte’s additions and the general appearance of other townhouses in Preston Square, including a number of homes to which additions were made. Delaporte complains that this court should rule in his favor based on the impression of the architectural consistency of his additions which these photographs display. However, David Ludwick, an experienced, licensed architect called as an expert witness for appellees, testified that the additions shown in these exhibits were inconsistent with the overall scheme. He stated that nowhere else in the complex did he observe such a large wall built for the purpose of dividing so small a space. He said that the original design appeared to be for the specific purpose of providing a sense of openness, light and air in the complex. He testified that Delaporte’s additions upset this design, that they had the effect of violating the common scheme of design of Preston Square, and that they were unlike any other additions made at Preston Square. We hold that the record as a whole, including the exhibits and the testimony of the expert Ludwick, is ample support for the jury finding that Delaporte’s additions were architecturally inconsistent with the Preston Square community. Consequently, because it is undisputed that architectural control was vested in Preston Square, we also rule that the jury properly found that the architectural committee acted in good faith in rejecting the proposals for the additions.

We also overrule Delaporte’s contention that Preston Square waived its right to object to the additions by failing to object to other additions which violated the architectural scheme of the community. Appellees’ expert witness Ludwick testified that previous additions by other Preston Square residents included, at most, only minor violations of the architectural scheme compared to those in Delaporte’s addition. Because failure to object to trivial violations of a restrictive covenant does not result in a waiver of the restrictions, this evidence formed a sufficient basis for the jury’s conclusion. See Fowler v. Brown, 535 S.W.2d 46 (Tex.Civ.App.—Waco 1976, no writ). We would also point out that the terms of the deed restriction itself provide that the failure of the association to maintain an action against violations does not constitute a waiver of their right to do so.

As to the nuisance question, we note that although Delaporte complains that a jury finding that his additions created a nuisance was against the great weight and preponderance of the evidence, he fails to supply us with either argument or references to the appellate record in support thereof. Nevertheless, we have reviewed the record and find ample support for the jury finding that the additions constitute a nuisance.

The judgment is affirmed.

AKIN, J., dissents.

AKIN, Justice,

dissenting.

I cannot agree with the majority because they have erred in three respects. First, the jury’s finding that Delaporte’s additions were not in keeping with the general architectural scheme of the development was against the great weight and preponderance of the evidence. Second, Preston Square has waived its right to enforce the deed restrictions because of noncompliance with them over a period of time. Third, the nuisance as found by the jury could be abated by a less draconian remedy than by demolition of the wall. Accordingly, I must dissent.

With respect to the jury’s finding that the wall was not in keeping with the architectural scheme, the entire record must be reviewed, and the evidence considered in its totality. Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815 (Tex.Civ.App.—San Antonio 1982, writ ref’d n.r.e.). The record contains numerous exhibits, including photographic evidence, showing privacy walls in the development which are very similar to that built by Delaporte. An examination of these exhibits, together with other testimony, compels the conclusion that the jury’s finding was against the great weight and preponderance of the evidence. Consequently, the jury’s finding that the Preston Square Board of Directors acted in good faith in rejecting Delaporte’s plans for the additions should also fail.

Second, Preston Square waived its right to enforce the deed restrictions against Delaporte. The rules in equity are well settled that restrictive covenants are waived by non-compliance over time and that restrictive covenants may not be selectively enforced. The uncontroverted evidence is that Preston Square, prior to this controversy, had failed to take any action or make any effort to enforce numerous violations of restrictions applicable to the development. Accordingly, I would hold that Preston Square waived these covenants insofar as Delaporte’s additions are concerned.

Additionally, the Mittelmans cannot enforce the restrictive covenants against Del-aporte in equity because they did not seek to do so with clean hands. E.g., Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S.W. 225 (1927). The evidence showed that the Mittelmans had erected a wall to the rear of their property in contravention of the deed restrictions. They should not, therefore, be allowed to seek equity where they have ignored the same restrictions which they now seek to enforce against Delaporte.

Third, I strongly disagree that the draconian remedy ordered by the trial court, and affirmed by the majority, is necessary. An injunction which provides for measures beyond those required to safeguard a protect-able interest of the prevailing party may be held invalid to the extent that it is excessive. Matlock v. Data Processing Security, Inc., 618 S.W.2d 327 (Tex.1981). It is quite probable that the essence of the nuisance — the drainage and light problems which, under the evidence, could be the only basis for the jury’s finding of nuisance — could be abated by measures less drastic than elimination of the wall. Accordingly, I would reverse and remand for a new trial so that the trial court could determine, based upon specific jury findings, the way in which equity could best be served, short of the wall’s demolition.


author: UTTER, Justice.

text:
    Rose Marie AGUIRRE, Appellant, v. STATE of Texas, Appellee.
    No. 13-83-492-CR.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 4, 1984.
    Rehearing Denied Oct. 25, 1984.

      Patrick McGuire, Corpus Christi, for appellant.
    Grant Jones, Corpus Christi, for appellee.
    Before UTTER, YOUNG and GONZALEZ, JJ.
   OPINION

UTTER, Justice.

This is an appeal from a jury conviction of murder for which the jury assessed punishment at fifteen years in the Texas Department of Corrections. We affirm the judgment of the trial court.

On October 26, 1983, appellant was convicted of the murder of Steven Burch. Appellant was formally sentenced on October 27, 1983, at which time she gave oral notice of appeal. On October 28, 1983, the trial court held a hearing on bond, during which time the trial court scheduled a hearing on appointment of an attorney for November 7, 1983.

At the hearing on appointment of an attorney on November 7, 1983, appellant failed to appear. A warrant for the arrest of appellant had been issued because she was at large without an appeal bond ever having been approved. Because of appellant’s failure to appear and after having called appellant’s name at the courthouse door, the trial court ordered appellant’s original bond forfeited and the issuance of a judgment nisi.

Appellant was subsequently arrested in Miami, Florida, in December 1983 on the warrant issued in this case. Following extradition proceedings, appellant was returned to Nueces County on January 29, 1984.

On February 1, 1984, following appellant’s return to Nueces County, the trial court appointed counsel to represent appellant on appeal. That same day, February 1, 1984, appellant’s appointed counsel filed on behalf of appellant a pauper’s affidavit and various motions, including, in the trial court, a request to permit supplementation of the record and, in our Court, her Motion for Extension of Time to File Statement of Facts.

On February 13, 1984, the trial record, which consisted of the Transcript, Vol. I, comprising pages 1-105, and a statement of facts of the November 7, 1983, hearing were filed in our Court. At that point in time, no designation of material, including any part of the statement of facts, for inclusion in the record had been filed on behalf of appellant. See TEX.CODE CRIM.PROC.ANN. art. 40.09 §§ 2 and 5 (Vernon Supp.1984).

On March 9, 1984, the trial court held a hearing on appellant’s motion to supplement the record, which was granted in part. On March 13, 1984, appellant filed in our Court her Supplemental Motion for Extension of Time to File Statement of Facts. On March 15, 1984, our Court denied appellant’s Motion for Extension of Time to File Statement of Facts and her Supplemental Motion for Extension of Time to File Statement of Facts. In accordance with the above rulings, our Court, on October 4, 1984, received but refused to file supplemental portions of the statement of facts of the trial as well as the statement of facts of the hearings held on October 27, 1983, October 28, 1983, and March 9, 1984. As noted above, the transcript and the statement of facts of the November 7, 1983, hearing had been previously filed in our Court on February 13, 1984.

On April 10, 1984, appellant filed with the Court of Criminal Appeals its Petition for Discretionary Review and Motion to Abate Appeal, complaining of our Court’s denial of her prior motions for extension of time to file statement of facts. On April 13, 1984, appellant filed her Motion for Leave to File Statement of Facts, which was subsequently denied by our Court on April 26, 1984. On June 6, 1984, the Court of Criminal Appeals refused appellant's Petition for Discretionary Review, holding in its per curiam opinion that the interlocutory orders of our Court were not reviewable.

In her first two grounds of error, appellant challenges the rulings made by the trial court and our Court regarding her record on appeal. Appellant argues that she was deprived of her right to effective assistance of counsel on appeal when (1) the trial court failed to fully sustain appellant’s objection to the record and request for supplemental record filed February 1, 1984, and (2) when our Court denied appellant’s motions for extension of time or leave to file statement of facts.

TEX.CODE CRIM.PROC. art. 40.09 (Vernon Supp.1984) sets forth the responsibilities for the preparation of a record on appeal. Art. 40.09, in pertinent part, provides:

2. Designation of material for inclusion in the record
Each party may file with the clerk a written designation specifying matter for inclusion in the record. The appellant shall file his designation within 20 days after the giving of notice of appeal. The state shall file its designation within 30 days after the giving of notice of appeal. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter is not timely filed. Each party shall serve a copy of its designation on the opposing party.
3. Statement of facts and other proceedings
The record may include a transcription of all or any part of the proceedings shown by notes of the reporter to have occurred before, during or after the trial and the same will constitute the statement of facts for the appeal. A transcription applicable to any proceeding occurring before notice of appeal shall be filed with the clerk for inclusion in the record not later than 60 days after notice of appeal. A transcription of the notes applicable to any proceeding occurring after notice to appeal shall be filed with the clerk for inclusion in the record not later than thirty days after the end of such proceeding.
⅜ * * ⅜ * ⅜
5. Responsibility for obtaining a transcription of the reporter’s notes
If a party desires to have all or any portion of a transcription of the court reporter’s notes included in the record, he shall so designate with the clerk in writing and within the time required by Section 2 of this Article. Such party shall then have the responsibility of obtaining such transcription from the court reporter and furnishing the same to the clerk in duplicate in time for inclusion in the record and the appellant shall pay therefor. The court will order the reporter to make such transcription without charge to appellant if the court finds, after hearing in response to an affidavit filed by the appellant not more than 20 days after giving notice of appeal that he is unable to pay or give security therefore.

We note that Art. 40.09 does not permit an extension of the twenty day time period for either the designation of the record (Art. 40.09 § 2) or the designation of intention to include statement of facts in the record and filing of affidavit of inability to pay (Art. 40.09 § 5).

It is well established that the burden is on an appellant to establish that he has been improperly deprived of his statement of facts. Timmons v. State, 586 S.W.2d 509 (Tex.Crim.App.1979). To be entitled to a reversal of judgment of conviction when a statement of facts is not filed, an appellant must show (1) due diligence in requesting it and (2) that the failure to file or to have the statement of facts timely filed is not in any way due to negligence, laches or other fault on the part of the appellant and his counsel. Id. at p. 512; Walker v. State, 642 S.W.2d 189 (Tex.App.—Houston [14th Dist.] 1982, pet. ref’d.). In assessing an appellant’s diligence in obtaining a statement of facts, we must view the circumstances from the appellant’s standpoint, consider what an ordinary prudent person would do in the same or similar circumstances and resolve any reasonable doubt in favor of the appellant. Timmons v. State, 586 S.W.2d at p. 512; Lamkin v. State, 138 Tex.Cr.R. 311, 136 S.W.2d 225 (1940). We find that, under the circumstances of this case, appellant failed to demonstrate her due diligence in requesting preparation of the record on appeal. We further find that the failure to have a complete record, including a complete statement of facts, timely filed was due to her own fault. As evidenced in the record, appellant, while remaining at large without an approved appeal bond and eventually fleeing the jurisdiction to Florida, retained no attorney and failed to appear at the hearing on appointment of attorney on November 7, 1983. Even though she timely gave her oral notice of appeal on October 27, 1983, appellant did not file within the prescribed twenty day time period of Art. 40.09 a designation of material for inclusion of the record (Art. 40.09 § 2) or a designation of intention to include statement of facts in the record or a pauper’s affidavit (Art. 40.09 § 5). Unquestionably, appellant has failed to demonstrate her due diligence in requesting , and preparing a record on appeal. Appellant’s first and second grounds of error are overruled.

In her third, fourth and fifth grounds of error, appellant raises three contentions that are based upon matters contained within the portion of the statement of facts which our Court received but refused to file. Without the statement of facts properly before us, nothing is presented for our review. See Slade v. State, 400 S.W.2d 570 (Tex.Crim.App.1966); Bush v. State, 370 S.W.2d 875 (Tex.Crim.App.1963); See also Goodings v. State, 500 S.W.2d 173 (Tex.Crim.App.1973); Thomas v. State, 470 S.W.2d 892 (Tex.Crim.App.1971); Sellars v. State, 401 S.W.2d 835 (Tex.Crim.App.1966); Williams v. State, 397 S.W.2d 459 (Tex.Crim.App.1966).

The judgment of the trial court is AFFIRMED.

      . Under TEX.CODE CRIM.PROC.ANN. art. 44.-11 (Vernon Supp.1984), a trial court lacks the authority to supplement the record after the record is filed in the appellate court. Duncan v. Evans, 653 S.W.2d 38 (Tex.Crim.App.1983); James v. State, 660 S.W.2d 146 (Tex.App.—Amarillo 1983, no pet.). Any request for supplementation or correction of the record after that time must be addressed to the appellate court. As applied to the instant case, the trial court was without authority to order, on March 9, 1984, supplementation of the record after the trial court's transcript and the statement of facts of the November 7, 1983, hearing had been earlier filed in our Court on February 13, 1984, absent an order from our Court abating the appeal and instructing the trial court to supplement the record, thereby properly returning jurisdiction to the trial court for such purposes. See Duncan v. Evans, 653 S.W.2d at p. 40.


author: GONZALEZ, Justice.

text:
    Anna WILLIAMS, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-011-CR.
    Court of Appeals of Texas, Corpus Christi.
    Oct. 4, 1984.
    Rehearing Denied Oct. 25, 1984.

      J. Manuel Banales, Corpus Christi, for appellant.
    Grant Jones, Dist. Atty., Corpus Christi, for appellee.
    Before NYE, C.J., and GONZALEZ and SEERDEN, JJ.
   OPINION

GONZALEZ, Justice.

This is an appeal from a conviction by a jury for the offense of injury to a child by criminal negligence. Punishment was assessed at one year in the County Jail, probated. Appellant brings forth several grounds of error, among which she challenges the sufficiency of the evidence to support the conviction. Appellant also asserts that the trial court erred in denying her motion that the State elect on which count to proceed, in submitting the lesser included offense of criminal negligence, and in refusing to apply the defense of mistake of fact to the offense of criminal negligence. We affirm.

The evidence shows that appellant lived with the father of the child, Jeffrey Gui-drey, in the home of his relatives. Guidrey testified that, about 5:00 a.m. on March 21, 1983, their one year old baby awoke and needed his diaper changed. He found it necessary to bathe the child so he placed the child in the tub, turned on the cold and hot water, and left it running while he went to get a clean diaper and nightshirt. When he returned, the water was steaming hot and the child had suffered severe burns to his stomach, on his bottom, and in the groin area. Some of the skin was falling off. He put some Unguentine ointment on the baby and told appellant that the baby had suffered some burns. Appellant saw the baby’s skin coming off his bottom and was informed by Guidrey that he had applied ointment on the baby. Both appellant and Guidrey testified that the child went back to sleep after having a bottle and woke up at 8:00 a.m. Appellant said that she did not re-check the baby, but gave him another bottle and that the child went back to sleep. Appellant and Guidrey got up around 11:00 a.m. Guidrey’s step-father saw the child after being informed about the burns by a younger son and suggested that the baby be taken to the hospital. The child was admitted to the Driscoll Children’s Hospital about 12:00 noon.

When the child arrived at the hospital, the diaper was stuck to his body and he was in severe pain. He was given medication to reduce the pain. The burns were classified as first and second degree burns — the skin came off at the touch.

Appellant and Guidrey were indicted jointly in a four count indictment alleging different culpable mental states and severity of injuries:

Count I: alleged intentional and knowing conduct that caused serious bodily injury by pouring hot liquid on the child;
Count II: alleged reckless conduct causing serious bodily injury by pouring hot liquid on the child;
Count III: alleged reckless conduct by a parent causing serious bodily injury by failing to provide such medical assistance as needed; and
Count IV: alleged intentionally and knowingly causing bodily injury by a parent by failing to provide such medical assistance as needed.

The court submitted the case to the jury with the different culpable mental states of intentionally or knowingly causing bodily injury by a parent failing to provide such medical care as was needed, and also on the lesser culpable mental states of reckless conduct and criminal negligence.

Whether the child turned off the cold water and accidentally scalded himself, or whether the father intentionally poured hot water on the child was unresolved at the time of appellant’s trial. However, by their verdict, the jury found that appellant was guilty of causing bodily injury to her child in that she failed to provide medical care for the child when such care was needed. The jury apparently felt that the delay of several hours between when the father showed appellant the burns and when the child was taken to the hospital later that morning for treatment was criminal negligence.

This is a circumstantial evidence case. When considering the sufficiency of the evidence, we view it in the light most favorable to the verdict, and will uphold the conviction only if a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465 (Tex.Crim.App.1983); Vaughn v. State, 607 S.W.2d 914 (Tex.Crim.App.1980).

Election

In her first ground of error, appellant alleges the court erred in denying her motion that the State elect which count of the indictment upon which it would proceed. The indictment, in four counts, alleged the same offense, i.e., injury to a child. “[Wjhere the same act or transaction is charged in different counts which are phrased differently in order to meet possible variations in proof, the State is not required to elect.” Floyd v. State, 164 Tex.Cr.R. 50, 296 S.W.2d 523, 528 (1956). Appellant’s first ground of error is overruled.

Suppression-Oral Statements

In her second ground of error, appellant alleges the court erred in refusing to suppress evidence of oral statements made to an employee of the Texas Department of Human Resources who investigated the alleged child abuse.

From appellant’s pre-trial motion, see TEX.CODE CRIM.PROC.ANN. art. 40.-09 6.(d)(3) (Vernon Supp.1984), and her brief, we understand her complaints to be that the statements:

(1) were taken when she was under arrest or substantially deprived of her freedom;
(2) were involuntary, coerced, and enticed;
(3) would not have been given had she not been deprived of her right to counsel; and
(4) were procured in the absence of any Miranda warnings.

A hearing was held on appellant’s motion; however, there are neither findings by the court nor is there any statement in the record of the reason the motion was overruled. Notwithstanding these shortcomings, we need not abate the appeal, for absent custodial interrogation, a hearing on the voluntariness of any statement is not required. LaPoint v. State, 650 S.W.2d 821, 825 (Tex.Crim.App.1983).

In our opinion, the determinative issue on appeal is whether appellant was “in custody” at the time she made the oral statements. There is no well-defined rule to distinguish custodial interrogation from non-custodial interrogation; rather, the approach of the Court of Criminal Appeals is to review the evidence in each case in light of all the surrounding circumstances. McCrory v. State, 643 S.W.2d 725, 726-27 (Tex.Crim.App.1982).

Significant factors to be considered in determining whether a defendant is in custody are:

(1) probable cause to arrest;
(2) subjective intent of the police;
(3) focus of the investigation; and
(4) subjective belief of the defendant.

LaPoint v. State, 650 S.W.2d 821, 824 (Tex.Crim.App.1983); McCrory, 643 S.W.2d at 733. Of these four, the significance of whether the focus of the investigation had finally centered on the defendant is of special importance. See Newberry v. State, 552 S.W.2d 457, 461 (Tex.Crim.App.1977).

In applying this “all circumstances extant” test, we observe that the Court of Criminal Appeals has stated: “Clearly this is the best rule, encompassing the most meaningful criteria for consideration of the issue. The courts cannot be expected to decide cases solely on the basis of self-serving statements by the defendant or the interrogating officer.” McCrory, 643 S.W.2d at 733. However, in our case, we are hampered in making a determination, for we have no other testimony save that of the child welfare worker. Appellant offered no testimony at the hearing, despite an absolute right to do so for the limited purpose of contesting the voluntariness of her statements, see Horne v. State, 508 S.W.2d 643, 646 (Tex.Crim.App.1974); see also Myre v. State, 545 S.W.2d 820, 825 (Tex.Crim.App.1977), and though she testified at trial, the circumstances surrounding her statements to the child welfare worker were not explored.

Thus, we turn to the testimony at the pre-trial hearing of Mr. Onofre Garza, the child welfare worker with the Texas Department of Human Resources who investigated this abuse. Garza testified that he interviewed appellant at Driscoll Hospital on April 4, 1983, in response to a report of suspected abuse received April 1, 1983. Garza stated that he told appellant who he was and informed her that he wanted to speak with her about how her son was burned. Garza stated that he never attempted to prevent appellant from leaving or refusing to speak with him, and further testified that she was free to terminate the conversation at any time.

Concerning the important “focus of the investigation” issue, Garza testified that the purpose of the interview was to find out how the child was burned. He stated that he spoke with appellant to determine whether some action was needed to protect the child, not to gather evidence for a possible prosecution by the district attorney’s office.

Balancing the relevant factors in the context of all the facts and circumstances shown, see LaPoint, 650 S.W.2d at 825, we hold that appellant was not “in custody” at the time of her declarations. Accordingly, the statements complained of did not stem from custodial interrogation, and warnings were not required. Id. The trial court committed no error by admitting appellant’s oral declarations.

In reaching this conclusion we have applied the test fashioned to assay the conduct of law enforcement officers. Garza testified that he had no authority to make an arrest. In light of our conclusion that appellant was not “in custody,” we express no opinion on whether Garza was under any duty to administer Miranda warnings to appellant. See Fisher v. State, 379 S.W.2d 900, 902 (Tex.Crim.App.1964) (test for meaning of “person in authority”).

Appellant’s second ground of error is overruled.

Instructed Verdict

In her third ground of error, appellant alleges the trial court erred in denying her motion for instructed verdict that she made after the close of all the evidence. Appellant argues that the State failed to prove that she was reckless or that the child sustained any serious bodily injury or serious physical impairment.

In Chase v. State, 573 S.W.2d 247 (Tex.Crim.App.1978), the Court of Criminal Appeals was presented with a double jeopardy issue that arose when the trial court granted the defendant a new trial after agreeing with defendant that the court erred in denying defendant’s motion for instructed verdict. Concerning the issue of the trial court’s determination of whether the evidence was insufficient as a matter of law to sustain a guilty verdict, the Court of Criminal Appeals said:

The standard for review by the trial court on sufficiency of the evidence is not to consider whether or not he believes or disbelieves any witness, but merely to determine whether or not, in looking at the evidence in a light most favorable to sustain the verdict, there is any evidence which the jury could have believed in arriving at such a verdict. This is the same standard of review by which this Court reviews sufficiency of the evidence.

573 S.W.2d at 249 n. 1.

Though Chase dealt with post-verdict review of the evidence, we hold that the same standard of review applies to a motion made at the close of the evidence. The test remains the same: Is there any evidence which the jury could believe that would support a verdict of guilty? If there is such evidence, then an issue of fact is raised that presents a question for the jury, not a matter of law for the court. See McKenzie v. State, 617 S.W.2d 211, 218 (Tex.Crim.App.1981).

We turn then to the evidence to determine whether the court erred in refusing appellant’s motion for instructed verdict. At the outset, we observe that appellant places heavy reliance upon the testimony of the doctor she called as a defense witness. Appellant also concludes that, after cross-examination of the State’s medical witness, careful analysis and examination reveals that the prosecution’s case comes up short.

As previously stated, when the sufficiency of the evidence is challenged, this Court is required to view the evidence in the light most favorable to the verdict. Also, the jury, as sole trier of the facts, was entitled to accept or reject any or all the testimony and to determine the weight to be given that testimony. Lombardo v. State, 503 S.W.2d 780, 782 (Tex.Crim.App.1974).

Against these heavy burdens, we examine appellant’s complaints. Appellant sought to establish at trial that she was not aware of the severity or extent of the burns and that the baby went to sleep when given a bottle. The testimony of the doctor called by the State, Dr. Kepp, was that regardless of the diaper area that would be obscured or covered, there was an equal area of burns above the diaper from just below the chest margin on down. Concerning the alleged dress of the child, the jury would be entitled to reject the testimony that the burns were obscured when the father diapered the baby and put a nightshirt on it. Finally, concerning the matter of whether the baby went to sleep and whether this prevented appellant from finding out about the severity of the burns, the State’s doctor testified that the latter proposition was “not within my realm of experience or reason.” The implication being that with such severe burns, the baby would have been constantly crying with severe pain. We hold the evidence was sufficient to submit the issue of whether appellant acted recklessly.

Concerning appellant’s argument that the evidence is insufficient to show the child sustained any serious bodily injury or serious physical impairment, the State elicited the following response from Dr. Kepp: “There is certainly severe bodily injury with this in regard to that would have a good bit of scarring from the burn.” There was also testimony that skin was falling off the burned area when the baby arrived at the hospital, and numerous photographs depicting the injury were introduced as evidence. The doctor also testified that immediate treatment of such burns is critical because of fluid and protein losses through the burns and because of the possibility of infection. The child developed pneumonia and a urinary infection. We hold that the evidence was sufficient to inquire of the jury whether the child’s thirty-day stay in the hospital was the result of serious bodily injury. Appellant’s third ground of error is overruled.

In her fourth ground of error, appellant complains that the trial court erred in refusing her second motion for instructed verdict as to Count IV of the indictment.

Count IV provided as follows:

Anna Williams did then and there intentionally and knowingly cause bodily injury to Patrick Wayne Williams, a child younger than 14 years of age, by failing to provide medical care for Patrick Wayne Williams when such care was needed; that defendant was then the natural parent of Patrick Wayne Williams and was legally obligated to provide such care; and that the defendant was then able to provide such care ....

Appellant’s ground of error stems from the following remarks by the State in closing argument:

Of course, you will have probably reviewed the Court’s charge. You-all know what the mental state is that you are looking at. Once you have done that, I submit to you that the evidence does not prove beyond a reasonable doubt that the Defendant is guilty of intentionally or knowingly causing the injury. I submit to you that you will scratch paragraph number six off as I have done in my charge. The evidence is not there to support that.

Paragraph six of the charge was as follows:

If you find from the evidence beyond a reasonable doubt that the defendant, Anna Williams, on or about March 31, 1983, in Nueces County, Texas, did then and there intentionally or knowingly cause bodily injury to Patrick Wayne Williams, a child younger than 14 years of age, by failing to provide medical care for Patrick Wayne Williams when such care was needed; that the defendant was then the natural parent of Patrick Wayne Williams and was legally obligated to provide such care, then you will find the defendant guilty of injury to a child under paragraph 6. If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant not guilty under paragraph 6, and you will then consider paragraph 7.

In her brief, appellant argues: “If the State were indeed candid and correct about that observation before the jury, and surely the State would not utter representations unless genuinely and honestly made, then the same observation would be equally binding upon the Court.” Appellant cites no authority for her proposition that remarks made by the State’s attorney during closing argument are binding upon the trial court.

In our opinion, the charge of the court should be based on the evidence, not on the opinion of counsel. Furthermore, the remark brought forward as grounds for reversal was addressed to the jury, not to the court.

We have previously set out what we believe to be the proper test for examining the court’s action in granting or denying a motion for directed verdict. Applying that test to appellant’s second motion, we find there was sufficient evidence to submit a fact question to the jury of whether appellant acted intentionally or knowingly.

Garza testified that the pattern of the burn on the child was not consistent with the explanation of the parents of how it was inflicted. Dr. Kepp also testified that he thought the incident was no accident, and suggested the mother of an abused child may say nothing because of fear, of or threats from, the one who actually injured the child.

In light of this testimony, we cannot say that the issue of whether appellant may have intentionally or knowingly failed to seek medical care for her child when that care was needed should not have been submitted to the jury. Appellant’s fourth ground of error is overruled.

Appellant’s fifth ground of error is an argument premised on a supposition that this Court would sustain her fourth ground of error. The gist of her ground of error is that, since Count IV of the indictment, as embodied in paragraph six of the charge, should not have been submitted, all lesser included offenses, i.e., the paragraph of the charge that appellant was convicted of, should also have been excluded.

In that we have overruled appellant’s fourth ground of error, we also overrule ground of error number five. Appellant was convicted of bodily injury to child by criminal negligence. That offense is a lesser included offense of the offense alleged in Count IV of the indictment in that it differs only in the respect that a less culpable mental state suffices to establish its commission. TEX.CODE CRIM.PROC. ANN. art. 37.09(3) (Vernon 1981); see Sanders v. State, 664 S.W.2d 705, 709 (Tex.Crim.App.1982).

Jury Note

In her sixth ground of error, appellant alleges: “The trial court abused its discretion, and so erred, in arbitrarily and incompletely responding to a note from the jury regarding the ‘skin hanging’ testimony of appellant.”

During its deliberations on guilt or innocence, the jury sent a note to the trial court that apparently said “skin hanging statement.” The note was not included in the record.

In response, the Court had testimony read to the jury. We quote the testimony as it appears in the statement of facts:

Whereupon, the court reporter read the following portion of the Defendant’s testimony to the jury:
“Q All right, now, let’s go back to March 31st of 1983, and tell the jury what you remember of those early morning hours of that day.
A When Jeffery brought Patrick in there to me?
Q Yes.
A Well, after it happened, I was in bed asleep the whole time, and Jeffery brought Patrick back to bed, and he said he had got burned, and I looked at Patrick, and there was a piece of skin off his behind...”

Appellant objected at trial and now complains on appeal that the court should not have stopped in mid-sentence. Appellant argues that at the very least, the court should have submitted the complete answer of appellant which was as follows:

A Well, after it happened, I was in bed asleep the whole time, and Jeffery brought Patrick to bed, and he said he had got burned, and I looked at Patrick, and there was a piece of skin off his behind, and Jeffery told me he had put ointment on him, and he went to get him a bottle.

TEXAS CODE CRIM.PROC.ANN. art. 36.28 (Vernon 1981) provides:

In the trial of a criminal case in a court of record, if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other _ (Emphasis added.)

In the instant case, that part of the testimony that the jury requested was read. That portion advanced by appellant concerned ointment.

Furthermore, the court prefaced the reading with the following remark:

Of course, if I have misconstrued your intention, and you refer to some other statement, then if you will, so indicate to me. But this is my interpretation, if you will, of your note.

The court must decide, in its discretion, what sections of the testimony will best answer the query, and limit the testimony accordingly. Iness v. State, 606 S.W.2d 306, 314 (Tex.Crim.App.1980). We hold there was no abuse of the court’s discretion. Appellant’s sixth ground of error is overruled.

Criminal Negligence

In her seventh and eighth grounds of error appellant complains of the court’s charge, arguing that the court erred in submitting lesser included offenses based on the culpable mental state of criminal negligence. Appellant argues there was “no evidence that appellant ought to have been aware of a substantial and unjustifiable risk.”

TEX.PENAL CODE ANN. § 6.03(d) (Vernon 1974) states that a person acts with criminal negligence or is criminally negligent “with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.” What appellant should or should not have been aware of was a jury question. Dillon v. State, 574 S.W.2d 92, 95 (Tex.Crim.App.1978).

Appellant’s seventh and eighth grounds of error are overruled.

Defense of Mistake of Fact — Criminal Negligence

In her ninth ground of error, appellant alleges the court erred in refusing her request to apply the defense of mistake of fact to the lesser included offense of injury to a child by criminal negligence.

Appellant’s criminal liability was submitted to the jury by paragraphs four, five, six, seven, and eight of the charge as follows:

4 recklessly serious bodily injury or serious physical impairment
5 criminal negligence serious bodily injury or serious physical impairment
6 intentionally or bodily injury knowingly
7 recklessly bodily injury
8 criminal negligence bodily injury

The court submitted the defense of mistake of fact, but specifically limited it to paragraphs four, six, and seven of the charge.

The testimony in this case did raise the issue of whether appellant through mistake of fact formed a reasonable belief that the infant was not in need of immediate medical care. In the light most favorable to appellant, the evidence was that she was aware of only a small red area, that the child’s father had treated the small spot with a burn salve, and that the baby went to sle.ep with a bottle.

It is well established that appellant was entitled to an instruction on every issue raised by the evidence, whether produced by the State or the appellant, and whether the evidence was strong, weak, unim-peached, or contradicted. Montgomery v. State, 588 S.W.2d 950, 952 (Tex.Crim.App.1979). “The issue on appeal is not whether appellant’s story is true or even believable. That issue is exclusively for the jury as trier of fact.” Id.

Thus, the issue before us is whether the defense of mistake of fact is available as a defense to negate the culpable mental state of criminal negligence.

Texas Penal Code Ann. § 6.03 (Vernon 1974) defines culpable mental states:

(d) A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

On appeal, the State argues that:

Mistake of fact applies when the actor consciously disregards the consequences of his or her actions as a result of a mistake of fact. The actor is aware of a risk, but because of his mistake of fact he disregards the risk. In criminal negligence, the actor is not even aware of the risk. Whether or not he makes a mistake as to fact, he is still not aware of the risk and his mistake plays no part in his negligence.

A person who acts on the basis of a negligently formed belief that turns out to be mistaken acts negligently. It is illogical to give this defense in a criminal negligence case because mistake of fact is already factored into the definition of criminal negligence. Criminal negligence is an inadvertent risk creation; it does not require consciousness of the risk but inquires of the fact finder whether the actor ought to have been aware of the risk. See Searcy and Patterson, Practice Commentary, Tex. Penal Code Ann. § 6.03 & § 8.02 (Vernon 1974). Appellant’s conduct is weighed against an objective standard, that of the ordinary prudent man. Therefore, by its very nature, the defense of mistake of fact is incongruous with the definition of criminal negligence.

Our case is distinguishable from Beggs v. State, 597 S.W.2d 375 (Tex.Crim.App.1980). In that case, appellant was apparently convicted of intentionally and knowingly engaging in conduct that caused serious bodily injury to a child when the child was scalded with bath water. Appellant had testified that she mistakenly believed that the water was normal, but the trial court refused to give to the jury a requested instruction of mistake of fact. The Court of Criminal Appeals held that this was error. However, in onr ease, the trial court did charge the jury on the defense of mistake of fact as to the culpable mental states of intentional, knowing, or reckless conduct, but not as to criminal negligence. We believe that the trial court action was proper.

In summary, whether one should have been aware of the risk is a conclusion to be drawn by the trier of fact from inferences drawn from all the circumstances of the case. All twelve jurors were satisfied beyond a reasonable doubt that appellant should have been aware of the seriousness of the injury and not waited seven hours before seeking professional medical assistance. We cannot say that a rational trier of fact, from the evidence in this record, could not conclude that appellant’s negligence unnecessarily caused the child seven hours of excruciating pain. Appellant’s ninth point of error is overruled.

The judgment of the trial court is AFFIRMED.

      . Tex.Penal Code Ann. § 22.04 (Vernon Supp. 1984) provides:
      (a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that causes to a child who is 14 years of age or younger or to an individual who is 65 years of age or older:
      (1) serious bodily injury;
      (2) serious physical or mental deficiency or impairment;
      (3) disfigurement or deformity; or
      (4) bodily injury.

        (b) An offense under Subsection (a)(1), (2), or (3) of this section is a felony of the first degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly it shall be a felony of the third degree.
      (c) An offense under Subsection (a)(4) of this section is a felony of the third degree when the conduct is committed intentionally or knowingly. When the conduct is engaged in recklessly it shall be a Class A misdemeanor. (d)An offense under Subsection (a) of this section when the person acts with criminal negligence shall be a Class A misdemeanor.

      . Tex.Code Crim.Proc.Ann. art. 21.15 (Vernon Supp.1984) provides that the act or acts relied upon to constitute recklessness or criminal negligence must be alleged with reasonable certainty-

      . Tex.Penal Code Ann. § 8.02 (Vernon 1974) provides:
      (a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.
      (b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

      . This case is a good illustration of the problems encountered in criminal negligence cases. It is debatable whether criminal negligence provides a workable and a rational basis upon which to predicate criminal sanctions. See, Comment, Negligence: A Reappraisal of its Validity as a Basis for Criminal Liability and Sanction, 20 S.TexXJ. 179 (1979).


text:
    Dearing E. JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 09-83-234-CR.
    Court of Appeals of Texas, Beaumont.
    Oct. 10, 1984.
    Donald M. Brown, Conroe, for appellant.
    James Keeshan, Dist. Atty., Conroe, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was indicted in April, 1981, for the offense of theft over $10,000. A jury convicted him on May 10, 1982. The court assessed appellant’s punishment at ten years probation, including restitution, the amount to be determined following the filing of a financial statement by appellant. On June 29, 1982, appellant filed a petition for relief under Chapter 7 of the Bankruptcy Code in the United States Bankruptcy Court, Southern District of Texas. Among the scheduled debts listed by appellant in his bankruptcy petition were $44,000 each to Ruth Cable and Marguerite Byrnes, the victims of the offense for which appellant was convicted.

On August 9, 1982, the District Judge by written order placed appellant on probation and ordered appellant to

“Pay restitution in such sums and at such times as ordered by the Court; and the Court hereby sets this cause for hearing on the first Friday of July of every year during the term of probation to consider the defendant’s ability to make restitution.”

On December 22, 1982, appellant received a discharge from the Bankruptcy Court including the $88,000 claimed to be owed Byrnes and Cable. On July 29, 1983, the court held a hearing as provided for in the probation order. At the conclusion of the hearing, the court amended the probation judgment, ordering appellant to pay restitution in the total amount of $88,-831.00 by monthly payments of $200.00. On August 15, 1983, appellant filed a “Motion to Set Aside Amended Conditions of Probation”, alleging that the restitution order violated the Bankruptcy Court’s discharge order. Hearing was had on the motion and the court denied it on October 10, 1983. It is from this denial that appeal has been perfected to this Court. In an able brief filed with us by appellant, he states,

“No appeal was taken from that conviction [finding of guilty of theft], and none is now taken as to the conviction.... Notice of Appeal from the order of the Court setting amended conditions of probation was filed on October 10, 1983.”

Appellant presents us three grounds of error, all well briefed, that state:

1.The order of the Bankruptcy Court extinguished the debt made the basis of the trial court’s restitution order of $200.00 per month.
2.The trial court abused its discretion because there is not sufficient evidence of a factual basis to support such determination.
3.The award of $200.00 per month is not supported by the evidence.

We are unable to reach any of these grounds of error. In Basaldua v. State, 558 S.W.2d 2, 3 (Tex.Crim.App.1977) (Presiding Judge Onion), the Court was faced with “a purported appeal from an order refusing to alter or modify conditions of probation.” After reviewing its appellate jurisdiction, the Court concluded:

“We find neither constitutional nor statutory authority which would confer jurisdiction on this court to hear an appeal from an order entered pursuant to Article 42.12, Sec. 6, supra ..., altering or modifying probationary conditions or an order, as in the instant case, refusing to alter or modify such conditions. It must be remembered that this is not an appeal from an order granting probation, ef. Article 42.04, Vernon’s Ann.C.C.P., nor is it an appeal from an order revoking probation. Article 42.12, Sec. 8, Vernon’s Ann.C.C.P. We conclude that this court lacks the authority to entertain a direct appeal from the order entered, [citations omitted]”

558 S.W.2d at 5.

The Court did, however, conclude that the facts raise “a proper habeas corpus issue and fall within our habeas corpus jurisdiction.” Id.

TEX.CODE CRIM.PROC.ANN. art. 11.-07 (Vernon Supp.1984) grants exclusive jurisdiction of post conviction writs of habeas corpus to the Courts of Criminal Appeals.

Since we are without jurisdiction to consider appellant’s attempted appeal, it is dismissed.

Appeal dismissed.


author: McDONALD, Chief Justice.

text:
    William E. FULENWIDER, et al., Appellants, v. The CITY OF TEAGUE, Appellee.
    No. 10-84-105-CV.
    Court of Appeals of Texas, Waco.
    Oct. 15, 1984.

      J. Val Fulcher, Keils & Fulcher, Teague, for appellants.
    Patricia L. Akers, Fairfield, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiffs Fulenwider and Hogan from summary judgment against them and in favor of the City of Teague for the city’s right to construct a “sewer re-lift station within the boundaries of 9th Avenue, a validly dedicated public street in the City of Teague”.

Plaintiffs Fulenwider and Hogan sued the City of Teague for title and possession of a 59.52 acre tract of land in Freestone County, following an alleged unlawful entry by the agents and officers of defendant, and on which defendant removed a portion of plaintiffs’ fences and constructed a sewer re-lift station. Plaintiffs also sought actual and punitive damages as well as attorneys’ fees. Plaintiffs claimed title by virtue of a warranty deed dated March 3, 1972, in addition to limitation title under three, five, ten and twenty-five-year statutes.

Defendant generally denied and specially excepted to plaintiffs’ pleadings for failure to state a cause of action, citing Article 5517 V.A.C.S. Defendant claimed a street easement by common law dedication and counter-claimed for damages arising from plaintiffs’ obstruction of such easement. Defendant alternatively plead, if it was found not to own the easement, that judgment be granted against plaintiffs for an easement pursuant to defendant’s power of eminent domain. Plaintiffs further plead by amended petition that if defendant had acquired an easement, such was never dedicated by plaintiffs nor by their predecessors in title; that such right, if any, had been abandoned for over 20 years preceding defendant’s unlawful trespass; that if such easement exists, the re-lift station is not located within the right-of-way of such easement; that defendant knew or should have known it had the power under the right of eminent domain to take plaintiffs’ property in order to construct a sewage re-lift station thereon.

Defendant subsequently filed motion for summary judgment alleging that no genuine issue of material fact existed because the re-lift station was located within a validly dedicated public street of the City of Teague.

Among the exhibits attached to defendant’s motion are a recorded plat of the Colonial Hills Addition reflecting the width of 9th Avenue to be 50 feet, a map illustrating placement of the sewage station on 9th Avenue — 9th Avenue depicted as 70 feet wide, and an affidavit by surveyor G.M. Raymond which reads in pertinent part:

1. My name is M.J. Raymond and I am the registered public surveyor who located the sewer lift station location subject of this suit for the City of Teague, Texas.
2. Said sewer lift station is the right-of-way for 9th street as platted on the subdivision map of record for the City of Teague, Texas.

Handwritten on the affidavit and initialed by Raymond is the following statement:

The location of the lift station is the proper location for the proper fall.

Plaintiffs’ answer to defendant’s motion for summary judgment states in pertinent part:

A genuine issue of material fact further exists as to the location of the sewage re-lift station. Surveyor Raymond places the sewage re-lift station within the 70 foot right-of-way of South 9th Street. Exhibit “B”, a plat of Colonial Hills, shows the width of South 9th Street to be 50 feet.

Defendant answered:

Defendant did not state that its re-lift station was within the 70 foot right-of-way of South 9th Avenue. Defendant did state that the station is within the right-of-way of Ninth Street as it is platted on the map of the Colonial Hills Addition.

Attached to defendant’s response as reply Exhibit “A” is the supplemental affidavit of surveyor M.J. Raymond in which he states:

1. My name is M.J. Raymond. I am a registered public surveyor.
2. Regardless of whether 9th Street is 50 feet wide or 70 feet wide, the lift station subject of this suit is wholly within 9th Street.

The trial court rendered summary judgment that plaintiffs take nothing and that the city recover its costs from plaintiffs. The court found the records showed an absence of a genuine issue of material fact as to the right of defendant to construct a sewer lift station because said station is within the boundaries of 9th Avenue, a validly dedicated public street in the City of Teague. The court further found the street a part of the Colonial Hills Addition to the City of Teague as shown on the recorded plat and that the land depicted in such plat had been conveyed since the recording of the plat by deeds specifically referencing the plat.

Plaintiffs appeal on 8 points of error. Points 1 through 5 generally assert the trial court erred in granting defendant’s motion for summary judgment in that defendant failed to establish as a matter of law that the claimed extension of 9th Avenue was ever dedicated to the public and that defendant had a right to construct the re-lift station on said claimed extension. Point 6 asserts the trial court erred in granting defendant’s motion in that defendant failed to establish as a matter of law that said claimed extension of 9th Avenue, along with the alleged public use, was not abandoned. Point 7 asserts the trial court erred in granting defendant’s motion in that defendant failed to establish as a matter of law that the re-lift station is located within the right-of-way of 9th Avenue, if such street exists. Point 8 asserts the trial court erred in granting defendant’s motion in that a material fact issue existed as to whether the claimed street easement, if any, had been used for street purposes.

In reviewing a summary judgment, the following rules apply: (1) the movant for summary judgment (defendant city) has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Rule 166-A(c) TRCP; Gibbs v. General Motors Corp., S.Ct., 450 S.W.2d 827; (2) in deciding whether or not there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movants (plaintiffs Fulenwider and Hogan) will be taken as true. Cowden v. Bell, S.Ct., 157 Tex. 44, 300 S.W.2d 286; (3) Every reasonable inference must be indulged in favor of nonmovants, and any doubts resolved in their favor. Wilcox v. St. Mary’s University of San Antonio, S.Ct., 531 S.W.2d 589; (4) a party opposing the motion for summary judgment is not required to establish his right to prevail. Glenn v. Prestegord, S.Ct., 456 S.W.2d 901; Moseley v. Ramos, CCA (Waco) NWH, 559 S.W.2d 894; and (5) when a defendant moves for summary judgment on the whole case it assumes the burden of conclusively disproving plaintiff’s cause of action or establishing one or more of its defenses as a matter of law. Huie v. Lone Star Air Conditioning Company, CCA (Waco) NRE, 486 S.W.2d 182.

We revert to plaintiff’s point 7.

Nowhere does Raymond’s affidavit or the record otherwise give facts to determine the precise location of 9th Street (or the re-lift station) with reference to plaintiffs’ 59.52 acres.

The unilateral subjective determinations by surveyor Raymond as to the re-lift station’s location within the right-of-way of South 9th are conclusions of the affiant and not competent evidence to support a summary judgment. Hidalgo v. Surety Savings and Loan Association, S.Ct., 487 S.W.2d 702; Cox v. Bancoklahoma Agri-Service Corp., CCA (Amarillo) NWH, 641 S.W.2d 400; Empire Finance Service v. Western Preferred Life Ins. Co., CCA (Waco) ref’d, 461 S.W.2d 489. Such sworn statements do not meet the requirements of Rule 166-A TRCP that the affidavits in support of the motion shall set forth such facts as would be admissible in evidence. See also Kelly v. City of Marlin, CCA (Waco) NRE, 340 S.W.2d 507. Although defendant asserts plaintiffs’ failure to bring in their own expert to rebut surveyor Raymond’s conclusions, summary judgments must stand on their own merits, and the nonmovant’s failure cannot supply by default the proof necessary to establish the movant’s right. Swilley v. Hughes, S.Ct., 488 S.W.2d 64; Wise v. Dallas Southwest Media Corporation, CCA (Beaumont) NWH, 596 S.W.2d 533.

Applying the rules recited to the summary judgment evidence in this case, we hold that a genuine issue of material fact exists as to whether the re-lift station was constructed within the extended right-of-way of South 9th Avenue.

Plaintiffs’ point 7 is sustained.

The judgment of the trial court is reversed and the cause remanded.

REVERSED & REMANDED.

      . Italics ours.