author: ODOM, Judge. CLINTON, Judge, W.C. DAVIS, Judge. CLINTON, Judge,

text:
    Arthur Henry BERGHAHN, Appellant, v. The STATE of Texas, Appellee.
    No. 125-84.
    Court of Criminal Appeals of Texas, En Banc.
    Sept. 19, 1984.
    Rehearing Denied Jan. 30, 1985.

      Charles E. Perry, Wichita Falls, Bruce A. Martin, Iowa Park, for appellant.
    Harold Lerew, County Atty., Timothy D. Eyssen, Dist. Atty., and Barry L. Macha, Asst. Dist. Atty., Wichita Falls, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

ODOM, Judge.

Appellant was convicted of murder. The Court of Appeals, 660 S.W.2d 877, found fundamental error in the charge and reversed the conviction. We granted the State’s petition for review to consider the issue.

The verdict form attached to the charge included alternatives for the jury to find appellant guilty of murder, voluntary manslaughter, involuntary manslaughter, criminally negligent homicide, reckless injury to a child, and criminally negligent injury to a child. It did not include a form for finding appellant not guilty. In a hearing conducted by the trial court after the trial, the court reporter testified that after preparing the original charge and verdict form, which did include a form for finding appellant not guilty, the alternatives for injury to a child were added and in the process of correcting the page of form verdicts, the not guilty form was omitted. She also testified that the changes were made under the direction of defense counsel. The Court of Appeals held omission of the not guilty form was fundamental error, there being no objection to the omission.

In Bolden v. State, 489 S.W.2d 300, it was held that alleged error in the verdict form was not preserved for review where there was no objection at trial. The form used in that case recited:

“(If you find the defendant guilty, use the verdict form shown immediately below:)
We, the jury, find the defendant guilty of robbery as charged in the indictment.
Foreman.
“(If you find the defendant not guilty, use the verdict form shown immediately below:)
Foreman.”

In this case, unlike Bolden, there was no mention of a not guilty verdict on the sheet of verdict forms. Like Bolden, however, there was no trial objection.

In Cadd v. State, 587 S.W.2d 736, it was stated “if a defendant requests a charge and that charge is given just as requested, he is in no position to complain of any error therein, [citations omitted].” Although the issue in that case involved the substantive charge instead of the verdict forms, the rule should be equally applicable to both.

In this case appellant’s counsel supervised the alteration of the verdict form page by the court reporter and made no objection to omission of a not guilty form. Under the combined authorities of Bolden and Cadd we hold no reversible error is shown.

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for consideration of appellant’s other grounds of error.

MILLER, J., concurs in the result.

CLINTON, Judge,

dissenting.

Our present code of criminal procedure provides, and probably all its predecessors did as well, that a verdict is “a written declaration by a jury of its decision of the issue submitted to it ...,” Article 37.01, Y.A.C.C.P. The codes have also recognized a possibility that a jury verdict may be informal, meaning the jury had not “reduced [it] to the proper form,” Article 37.-10, id. A means of correcting an informal verdict is indicated, ibid.

Yet, the Legislature has never seen fit to prescribe a mechanism for the jury to reduce its declaration to writing in the proper form. Consequently, that task has been undertaken by courts and, as is often the case, the results have been uneven — to be charitable about it.

Early on, the jury foreman apparently wrote down the verdict on whatever paper happened to be at hand. When the indictment was taken along with the charge into the jury room upon retirement to have a clear understanding of what was alleged, e.g., Lindsey v. State, 108 Tex.Cr.R. 187, 299 S.W. 399, 400 (1927), the foreman might write a verdict on the indictment, as well as on the charge. See Myers v. State, 65 Tex.App. 448, 144 S.W. 1134, 1136 (1912). In Clay v. State, 157 Tex.Cr.R. 32, 246 S.W.2d 180 (1952), he reported the verdict on the bottom of the charge.

Moreover, given little or no guidance, a foreman might write out something so incomplete, vague or ambiguous that it would not support a judgment of conviction. See, e.g., Buster v. State, 42 Tex. 315 (1875); Wooldridge v. State, 13 Tex.App. 443 (1883). All sorts of rules of construction were applied to glean the intention of a jury in order to save its verdict. See notes 6 and 7 to Article 37.01, V.A.C.C.P. Presumably as a remedial measure, trial judges began to instruct juries as to terms of available verdicts. See, e.g., Williams v. State, 24 Tex.App. 637, 7 S.W. 333, 336 (1888); Oates v. State, 51 Tex.Cr.R. 449, 103 S.W. 859, 862 (1907). Then, to make it even easier, forms of possible verdicts were furnished the jury, along with the charge. However, that practice got mixed reviews on appeal whenever the judge omitted a form favorable to an accused; as the Court delicately put it in Harris v. State, 106 Tex.Cr.R. 539, 293 S.W. 822 (1927):

“Our opinions are not in harmony upon the propriety of furnishing forms of verdict. Some hold it to be a commendable practice. [citations omitted]. Other opinions discourage the practice, [citations omitted]. But all are agreed that, if forms are provided, the court should include a form for every verdict which might be returned under the evidence and instructions of the court so as to avoid conveying to the jury any impression as to the judge’s opinion as to what particular verdict should be rendered, [citation omitted]. Unless the forms provided in the present case violate the latter principle, the action of the court should not be held to call for reversal.”

Id., S.W. at 824. Accord: Cupp v. State, 127 Tex.Cr.R. 10, 74 S.W.2d 701, 704 (1934).

Then came Bolden v. State, 489 S.W.2d 300 (Tex.Cr.App.1972). To its charge the trial court attached a “verdict sheet.” Parenthetically the jury was instructed that if it found the defendant guilty to use the verdict form immediately below, and the form provided recited that the jury found defendant guilty of the offense charged in the indictment. Below that appeared:

“(If you find the defendant not guilty, use the verdict form shown immediately below:)
Foreman.”

Ultimately the Court found that “a form for not guilty, although not a proper one, was submitted and if the foreman had signed that form and it had been accepted by the court, the appellant would have been acquitted,” id., at 302. Judge Roberts dissented, and with his usual prescience wrote:

“Suppose an instruction and form provided for a ‘Guilty’ verdict but no mention whatsoever made of a verdict of ‘Not Guilty?’ Taken one logical step further, today’s decision might be good authority for upholding a verdict of ‘Guilty’ in such a case.”

Id., at 303.

As predicted by Judge Roberts, this Court now takes that step, relying on Bol-den v. State, supra, in that appellant did not object to omission of a “Not Guilty” form on the verdict sheet, and the “alleged error” is not deemed fundamental.

In the case at bar the trial court told the jury in its charge that “suitable forms for your verdict are hereto attached.” As it turned, however, that statement proved to be incorrect — so long as a “not guilty” verdict was “suitable.” Although not articulated the majority must reason that, having been instructed under which circumstances it could acquit appellant and say by its verdict “Not Guilty,” and should that be what the jury determined, the foreman of the jury was free to write out his own verdict form to that effect and sign it. That takes us partway back to “the good old days” when jury foremen were left to their own devices.

A trial judge in Texas either invented or adapted from another jurisdiction for use in this State a jury verdict form. When challenged on appeal, judges sometimes disagreed over propriety of the practice. Harris v. State, supra, at 824. Judge Latti-more, for one, believed “such practice should [not] be commended,” Hickox v. State, 95 Tex.Cr.R. 173, 253 S.W. 823, at 826 (1923), regarding it among “expedients in criminal trials [which] should be avoided when there exists room for doubt as to their propriety,” Smith v. State, 103 Tex. Cr.R. 103, 280 S.W. 200, at 201-202 (1926). Nonetheless, a rule approving the practice did develop, viz:

“If the court desires to furnish the jury with a form for their verdict he should include a form for every verdict which might be rendered so as to avoid conveying to the minds of the jury any impression as to the opinion of the court as to which of several verdicts might or should be rendered.”

1 Branch’s Annotated Penal Code (2nd Ed.) 652, § 677.

The Court has held that it is not reversible error for a trial court to submit proper forms, including one for “not guilty,” which “cover all possible verdicts under the facts,” Garcia v. State, 162 Tex.Cr.R. 594, 288 S.W.2d 513, 515 (1956); Harris v. State, supra, at 302; see also Ragland v. State, 391 S.W.2d 418, 420 (Tex.Cr.App.1965). Indeed, when neither accused nor his counsel had seen the forms, the Court pointed out that they are “justified in assuming that the court would deliver to the jury forms for every verdict authorized by the main charge,” Clepper v. State, 162 Tex.Cr.R. 278, 284 S.W.2d 739, 740 (1955). It is also true that the Court has applied the contemporaneous objection rule when an accused has seen the forms and failed to object, as the majority does here. However, if there is an opinion by this Court rendered before this cause in which the rule has precluded a complaint on appeal that a form verdict of “Not Guilty” was not delivered to the jury at all, I have yet to discover it. Even in Bolden v. State, supra, upon which the majority relies, the Court was not content to invoke the rule and rest on failure of objection.

In addition, to justify its result the majority says that “appellant’s counsel supervised the alteration of the verdict page by the court reporter” and equates that with requesting a charge that is given — the invited error rule. However, reading from the State’s brief a report of what happened, I am not so sure that counsel can be said to have “supervised” production of the flawed product.

The court reporter testified that appellant’s counsel requested additional forms on the verdict page for findings of guilt with respect to two lesser included offenses. She took the verdict page that had already been prepared by her, “whited out” in the fifth possible verdict the words “not guilty” and counsel directed her as to what words to type for verdict forms covering the lesser included offenses. Using what remained of the fifth form she completed a verdict for the first requested lesser included offense. When she typed the last verdict form for the last lesser included offense, the reporter “inadvertently, unintentionally left off” a form for a not guilty verdict; she “had not been directed by anyone to leave it off,” and was unaware that she had done so.

In criminal actions, due process vouchsafed by the Fourteenth Amendment and due course of law under Article I, § 19, Bill of Rights, are guarantees that proceedings will be conducted in accordance with established rules and forms which provide fundamental fairness necessary to due administration of justice. Deprivations of due process and due course do not rest on culpable fault, but may flow alike from innocent or good faith acts and omissions on the part of any participant in the criminal justice system. When the charge finally submitted also presented the jury a verdict sheet containing a form to find appellant guilty of the offense alleged or of every other conceivable lesser included offense, but did not include a verdict form for finding appellant not guilty, fundamental fairness was not provided appellant.

The Fort Worth Court of Appeals correctly decided this cause, and its judgment should be affirmed. Because it is not, I respectfully dissent.

TEAGUE and CAMPBELL, JJ., join. Before the court en banc.

OPINION ON MOTION FOR REHEARING ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

We granted appellant’s motion for leave to file a motion for rehearing to clarify our original opinion. The record from the post-trial hearing conducted by the trial court demonstrates that appellant’s attorney was in no way responsible for the omitted not guilty verdict form. The omission was purely a clerical error. The implication in our original opinion, that appellant’s counsel “directed” the omission, is incorrect.

However, we will not disturb our original holding that Bolden v. State, 489 S.W.2d 300 (Tex.Cr.App.1973) controls the instant case. Like Bolden, there was no trial objection. We deny appellant’s motion for rehearing.

CLINTON, Judge,

dissenting.

The reason for the decision of the Fort Worth Court of Appeals, as well in its conclusion as in its findings, is stated thusly:

“In this case, the court instructed the jury that ‘suitable forms for your verdict are hereto attached,’ and the only forms provided found the defendant guilty. Such action in effect amounted to an instruction by the court to find Ber-ghahn guilty. The error is fundamental and requires that the case be reversed and remanded for a new trial.” Berghahn v. State, 660 S.W.2d 877 (Tex. App. — Fort Worth 1983).

When this Court grants a petition for discretionary review, it is to review the “decision” of a court of appeals, Article 44.01 and Article 44.45(a) and (b); which is to say, to review “the reason for such decision,” Article 44.24(c). Indeed, that is precisely what the State identified in the two grounds it presented for review. Yet, a majority of this Court simply will not address the reason for the decision given by the court of appeals.

The court of appeals was well aware that appellant had not objected to failure to include a verdict form for “not guilty.” Not only does the record reflect lack of an objection, but also an amicus curiae brief flatly conceded that an objection had not been made. That was the very reason appellant and amicus curiae had to resort to a claim that fundamental error had been committed by the trial court in submitting a jury charge without a verdict form for finding appellant “not guilty.” And the authorities cited and discussed, albeit from other jurisdictions, support their contention and the reason given by the court of appeals for its decision.

On original submission this Court reversed the judgment of the court of appeals on a dual basis: failure of appellant to object to absence of a “not guilty” verdict form, under Bolden v. State, 489 S.W.2d 330 (Tex.Cr.App.1973); counsel for appellant “supervised the alteration of the verdict form page” and thus was in no position to complain, under Cadd v. State, 587 S.W.2d 786, 741 (Tex.Cr.App.1979). Neither confronts the reason given by the court of appeals for its decision.

Now on rehearing, since not factually supported in the record and diametrically contrary to an express finding by the trial court that such omission was a clerical error, this Court retreats from the latter position. However, a majority adheres to one portion of Bolden, supra, ignoring that the Court did go on and directly treat the effect of the verdict form that was attached to the charge of the trial court, concluded that “the jury was not misled by the form submitted,” and further concluded that “no harm or reversible error has been shown,” in that:

“In the present case a form of not guilty, although not a proper one, was submitted and if the foreman had signed that form and it had been accepted by the court, the appellant would have been acquitted.” Id., at 302.

So what Judge Douglas and the majority in Bolden really held is that the circumstances did not present fundamental error. Bolden is inapposite; it will not justify what the majority does today.

Because the majority would reverse the judgment of the court of appeals without even considering the issues presented to and determined by that court, and now presented to this Court for review, I respectfully dissent.

MILLER, J., joins.

      . What is surely a rarity occurred in Woodall v. State, 58 Tex.Cr.R. 513, 126 S.W. 591 (1910): A juror still sitting in the box signed a verdict written out and handed to him by the district attorney without any deliberation by jurors whatsoever.

      . All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . All references are to articles in V.A.C.C.P. unless otherwise indicated.


source: Caselaw Access Project

author: W.C. DAVIS, Judge.

license: Public Domain

text:
    Randall Paige HENSON, Appellant, v. The STATE of Texas, Appellee.
    No. 615-82.
    Court of Criminal Appeals of Texas, En Banc.
    Dec. 12, 1984.

      William W. Burge, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty. & Patricia Saum and George McCall Secrest, Jr.,
    Asst. Dist. Attys., Houston, Robert Hut-tash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

W.C. DAVIS, Judge.

Appellant was convicted of aggravated rape. The jury valso found the enhancement paragraph to be true and assessed punishment at confinement for life. See V.T.C.A., Penal Code, Sec. 12.42(c). The court of appeals for the Fourteenth Supreme Judicial District affirmed the conviction. Henson v. State, 650 S.W.2d 432 (Tex.App. — Houston [14th] 1982). We granted appellant’s petition for discretionary review to address his contention that the trial court erred by overruling his objection to the prosecutor’s argument that appellant contends is a comment on appellant’s failure to testify.

Appellant’s defense was alibi. His wife testified that appellant was with her at the time the offense was committed. Appellant also attempted to show that the victim had misidentified him as the rapist because she had testified that she saw a tatoo on the left arm of the rapist, but did not look at his right arm, which held the gun, and therefore did not see a tatoo on the right arm. Appellant had tatoos on both arms.

During closing argument at the guilt-innocence stage of trial, defense counsel argued that appellant was not the one who raped the victim, that the victim had misidentified appellant as the rapist. He also cautioned the jury not to convict appellant on the basis of an extraneous rape, evidence of which had been presented by the State in rebuttal.

In his closing argument the prosecutor stressed both appellant’s behavior when arrested and the victim’s identification of appellant, bolstered both by her description of appellant to investigating officers and by her identification of appellant as the offender at a lineup. Then he said:

[PROSECUTOR]: ... This is a very, very grave situation because the evidence in this case is overwhelming. The evidence is such that it cries out for a guilty verdict. Not because the defendant had a gun in his possession, not because for some reason known only to himself he has all those—
[DEFENSE ATTORNEY]: Object to the comment on the defendant’s failure to testify.
THE COURT: Overruled.
[DEFENSE ATTORNEY]: Note our exception.
[PROSECUTOR]: This stuff is in the vehicle. He is arrested and, of course, his defense is, folks, I know Dianne has gone through living hell but it wasn’t me and who does he put on the stand? His wife. I’m not going to criticize his wife

First, we must decide whether the statement is a comment on appellant’s failure to testify, either because the language was manifestly intended to be such a comment or because the language is such that a jury would take it as a comment on appellant’s failure to testify. Short v. State, 671 S.W.2d 888 (Tex.Cr.App.1984).

The statement was not a direct comment on the failure to testify and the State argues that the prosecutor was saying that the State had proven their case based upon the complainant’s testimony alone and that the evidence of other acts of the appellant — possession of the gun and possession of the ladies undergarments found in his vehicle — were not even needed to prove him guilty, that they were only incidental acts. We agree that the prosecutor’s statement was not manifestly intended to comment on the failure to testify, therefore, we must determine if the comment is of such a character that the jury would “naturally and necessarily” take it to be a comment on appellant’s failure to testify. See Short, supra.

Alleged argument error must be viewed in the context of the entire argument, keeping in mind the evidence presented and that isolated sentences taken out of context may take on meaning different than that understood by the jury. See Short, supra. The comment in the instant case refers to- the rather odd fact that appellant had a bag full of ladies undergarments in his truck several days after the instant offense when he was arrested. The complainant had testified that her undergarments, which appellant had taken off her, were nowhere to be found after he left.

The prosecutor’s comment was somewhat ambiguous, its meaning depending upon the emphasis and manner with which it was enunciated. Viewing it as a literal argument leads to the inference that appellant could tell us the answer but he did not. Viewing it as a rhetorical observation, however, we can infer that the prosecutor meant that, regardless of the reason for appellant’s having the items in his truck, the State had proved him guilty and no one need know or care why he had those items. This view is more consistent with what we perceive to be regular idiomatic usage and with what we perceive to be a likely, common inference. The parallel syntax of the comment about the gun and that about the “all those” also indicate a parallel message, namely, “Who knows why he had a gun and who knows why he had those items in his truck. It does not matter because his guilt as to the primary offense has been proved.”

Because the comment leads to two plausible inferences, we cannot say that a jury would necessarily take it to be a comment on appellant’s failure to testify. Short, supra. Further, an indirect comment, such as this one, is not harmful if it does not call for a denial of an assertion of fact or for contradictory evidence, that only the defendant is in a position to offer. Short, supra; Johnson v. State, 611 S.W.2d 649 (Tex.Cr.App.1981). The instant argument calls for neither of those. It rather calls for the jury to focus its consideration on that part of the case which they can themselves understand: the evidence of guilt.

Other cases in which comments have been held to be reversible error are ones in which the comment concerned an explanation about the crime itself, like the motive of the accused, comments which made reference to a defendant’s failure to testify about the crime itself. See Lee v. State, 628 S.W.2d 70 (Tex.Cr.App.1982). See also Minton v. State, 162 Tex.Cr.R. 358, 285 S.W.2d 760 (1956); Bell v. State, 130 Tex.Cr.R. 57, 92 S.W.2d 450 (1936); Sanders v. State, 123 Tex.Cr.R. 409, 59 S.W.2d 1116 (1933). In the instant case, the comment, alone or in the context of the whole argument, does not pertain to the rape or to motive for the rape, and thus does not call to a jury’s attention the failure of the only person who could explain that incidental information to testify.

Because we do not find that a jury would naturally and necessarily have taken the comment to refer to appellant’s failure to testify, and because the comment does not call for a denial of an assertion of fact or contradictory evidence, we hold that the argument was not an improper reference to appellant’s failure to testify.

The judgment of the court of appeals is affirmed.

TEAGUE, J., dissents.

      . Reference to appellant’s wife as a witness is proper argument to the extent the prosecutor is saying that all you can put on is your wife, an interested party with an obvious bias in favor of appellant.

      . The idiomatic usage here being "God only knows”, i.e., the prosecutor shrugged verbally.


author: CAMPBELL, Judge. ONION, Presiding Judge, TEAGUE, Judge,

text:
    John Paul (Mickey) STASEY, Appellant, v. The STATE of Texas, Appellee.
    No. 1140-83.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 30, 1985.

      Melvin Gray, San Angelo, for appellant on appeal only.
    Gerald A. Fohn, Dist. Atty., San Angelo, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of delivery of a controlled substance, to-wit: cocaine. On a plea of guilty appellant was sentenced to ten years in the Texas Department of Corrections and assessed a $10,000 fine. Subsequent to sentencing, appellant was placed on probation pursuant to Art. 42.12, Sec. 3e(a), V.A.C.C.P., hereinafter referred to as “shock probation.” The shock probation was later revoked. Appellant appealed, challenging the original grant of shock probation and alleging that the trial court was without jurisdiction to grant him shock probation, therefore entitling him to jail time credit for the time he was erroneously on probation. The Austin Court of Appeals, in an unpublished per curiam opinion, found that since appellant had filed a motion requesting release on shock probation, he was not without fault in his release, and not entitled to any jail time credit. See Stasey v. State, No. 3-83-109-CR, delivered September 14, 1983 (Tex.App.— Austin). We granted appellant’s petition for discretionary review to determine the propriety of that holding. We reform and affirm.

On March 31, 1982, appellant pled guilty to delivery of a controlled substance, to-wit: cocaine. On May 13, 1982, appellant’s counsel filed a motion for shock probation. Although the motion was filed 43 days after sentencing, the motion specifically requested that no hearing be held or probation granted until June 1, 1982, which would have been the 60th day after sentencing. The trial court granted appellant’s motion on May 27,1982, the 57th day after sentencing. Subsequently, on March 9, 1983, appellant’s probation was revoked. On March 14, 1983, appellant was released on an appeal bond.

On June 6, 1983, while this cause was pending on appeal but prior to the record being filed with the Court of Appeals, the trial court entered an order rescinding his order granting shock probation and granting appellant flat time for the time he was out on probation, to-wit: from May 27, 1982, to June 8, 1983. Appellant’s appeal bond was rescinded and appellant apparently was incarcerated.

On September 14, 1983, in an unpublished per curiam opinion the Third Court of Appeals held that appellant could not object to the revocation of probation since the trial judge was without jurisdiction to grant shock probation on May 27, 1983. The Court of Appeals further held: “Setting aside the question of the trial court’s jurisdiction” to enter the order of June 8, 1983, “ ‘order correcting sentence’ the court erred in giving appellant credit for the time he was erroneously released on shock probation.” Slip opinion, p. 2. The Court of Appeals then reformed the sentence to delete the improper grant of jail time credit from May 27, 1982, to June 8, 1983, except for the time from January 26, 1983, through March 24, 1983 — the time appellant was actually confined pending disposition of the motion to revoke.

Initially, appellant makes some unsupported assertions that Texas Department of Corrections is refusing to accept the appellant. Unsupported assertions in a brief present nothing for review. Ground of Error No. 2 is overruled.

Art. 42.12, Sec. 3e(a), supra, is the sole governing statute for the grant of shock probation. Sec. 3e(a) extends the jurisdiction of the trial court for 180 days from the date of execution of sentence. Specifically, Sec. 3e(a) states:

“Sec. 3e(a). For the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary.”

In Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979), this Court first thoroughly reviewed the shock probation law. This Court held that the grant of jurisdiction in 3e(a) was of a very limited nature. The defendant there was granted shock probation on the 126th day. This Court refused to construe the statute so as to apply the time limits to the mere filing of a motion. The statute specifically speaks to the granting of a motion; thus the fact that appellant’s attorney may have filed the motion prior to the trial court having jurisdiction to act is not controlling.

There can be no question that the trial court acted without jurisdiction in granting appellant’s motion for shock probation on the 57th day. Appellant alleges that said erroneous grant of shock probation was through no fault of his and he should not be penalized for the trial court’s error. Appellant rightfully points out that his request for shock probation was timely, and had the trial court adhered to his request that no action be taken until 60 days had elapsed, there would be no error from which to appeal. Under this Court’s “erroneous release” doctrine appellant claims he is entitled to jail-time credit for the entire time he was on probation.

This Court has long held that if a defendant through no fault of his own is erroneously released from incarceration he is entitled to flat time credit for the time he was erroneously out of custody. Ex parte Downe, 471 S.W.2d 576 (Tex.Cr.App.1971); Ex parte Tarleton, 582 S.W.2d 155 (Tex. Cr.App.1979).

However, a corollary to this doctrine is the premise that if the defendant was a “moving factor” in his erroneous release he would not be entitled to credit. In Ex parte Moneyhun, 161 Tex.Cr.R. 19, 274 S.W.2d 546 (1955), this Court found that “when appellant’s attorney requested his release he became the moving factor and cannot now take advantage of a void order_” Id. at p. 547. Moneyhun, supra, however, was a release without any statutory authority. The principal of Mon-eyhun has been applied by this Court in situations similar to the appellant’s, where a motion for probation was filed and subsequently erroneously granted. See Ex parte Massie, 161 Tex.Cr.R. 568, 278 S.W.2d 851 (1955).

In Adams v. State, 610 S.W.2d 780 (Tex. Cr.App.1981), a panel of this Court applied the foregoing principle to an erroneous grant of shock probation and held that since the defendant had requested shock probation he could not benefit from the erroneous grant of the relief requested. Adams, supra, does not indicate whether appellant’s motion requesting relief was proper. Likewise, in Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981), a panel of this Court found that the granting of shock probation on the 126th day under the old law was void, but the defendant would receive no credit since he had filed a motion requesting release. , Again, the opinion does not indicate whether appellant’s motion timely requested release.

We believe that the foregoing rules penalize a defendant for asserting his statutory right to probation. A defendant should not be penalized if the relief he requests is proper and only through the improper actions of the trial court does the order become void. Thus, if a defendant, who is statutorily eligible for shock probation, requests that the trial court consider his motion within the statutorily defined time limits, and the trial court unilaterally, but erroneously, grants the probation, the defendant is entitled to credit for the time between premature release and the date jurisdiction to grant shock probation attaches. Thus, in the case sub judice appellant is not entitled to all the time he was on shock probation since he requested to be released on June 1, 1982, the day jurisdiction attached in the trial court. He is, however, entitled to the 7 days he was prematurely released from May 27, 1982, to June 2, 1982.

The judgment of the Court of Appeals is reformed, granting appellant jail time credit from May 27, 1982, through May 31, 1982. In all other respects, the judgment of the trial court and the Court of Appeals is affirmed.

ONION, Presiding Judge,

dissenting.

Appellant was convicted on March 31, 1982 of delivery of a controlled substance, to-wit: cocaine, on his plea of guilty before the court. The punishment was assessed at 10 years’ imprisonment and a fine of $10,000.00. Sentence was imposed on the same date. No appeal was taken. On the same date the trial judge wrote the Department of Corrections that appellant was a candidate for shock probation, but that possibility was being kept from the appellant in accordance with the Department’s recommendation.

On May 13, 1982, appellant’s counsel filed a motion for shock probation, 43 days after the imposition of sentence on March 31, 1982. The motion expressly recognized that the court did not have jurisdiction until the 60th day after sentence under Article 41.12, § 3e(a), Y.A.C.C.P., to grant shock probation, and therefore requested the court to set a hearing “on or after June 1, 1982” and at the hearing to grant the appellant shock probation.

On May 27, 1982, the 57th day after sentencing, the trial judge entered an order granting shock probation stating he was acting pursuant to appellant’s motion. There does not appear to have been a hearing or any indication that counsel for the State or appellant were present when the order was entered. Appellant was returned to Tom Green County on June 2, 1982 and released on shock probation subject to certain conditions contained in the order of May 27, 1982.

On January 26, 1983, the State filed a motion to revoke probation alleging that on or about the same date appellant committed the offense of driving a motor vehicle upon a public road while intoxicated. Subsequently on March 9, 1983, a hearing was conducted on said motion. The appellant entered a plea of “true” to the motion’s allegations. Evidence was heard. The court revoked appellant’s probation. The order in effect, setting aside the suspension of the execution of sentence of March 31, 1982, gave appellant credit only for time in actual confinement. Notice of appeal was given, and appellant was released on an appeal bond.

Appellant’s brief on appeal dated June 6, 1983 was filed in the Austin Court of Appeals on June 10, 1983. Appellant ad-vaneed three grounds of error. He complained the court abused its discretion in revoking probation, claiming the evidence showed that because of his drinking problem he could not conform his conduct to the requirements of the probationary conditions. He also urged he was denied equal protection of the laws because some other defendant in Tom Green County had his punishment reduced following revocation of probation. In his third ground he argued the court failed to give him credit for all the time on his sentence to which he was entitled, that the court acted to grant shock probation when it didn’t have jurisdiction, and he was released without any fault of his own, and he should be given credit for the time he was on shock probation.

On June 8, 1983 the trial judge (other than the judge who granted shock probation) entered an “Order Correcting Sentence” acknowledging the court had acted prematurely in granting shock probation when it did not yet have jurisdiction, and the appellant was erroneously released from the Department of Corrections, and was entitled to credit for time spent on shock probation, and while free on an appeal bond and until taken into custody by virtue of the order of that date. The appellant was ordered arrested and returned to the Department of Corrections.

Based on such order the State moved to dismiss appellant’s appeal.

The Austin Court of Appeals affirmed the conviction reforming the sentence in an unpublished per curiam panel opinion. Stasey v. State (Tex.App. — Austin 1983) (No. 3-83-109-CR). Setting aside the question of the trial court’s jurisdiction to enter the “Order Correcting Sentence” at the time and under the circumstances, the Court of Appeals held the court erred in giving appellant credit for the time he was erroneously released on shock probation and for the time he was out of custody on appeal bond following revocation of probation. The State’s motion for dismissal was denied. We granted appellant’s petition for discretionary review to determine the correctness of the Court of Appeals’ decision.

Article 42.12, § 3e(a), V.A.C.C.P., reads:

“Por the purposes of this section, the jurisdiction of a court in which a sentence requiring confinement in the Texas Department of Corrections is imposed for conviction (of a felony) shall continue for 180 days from the date the execution of the sentence actually begins. After the expiration of 60 days but prior to the expiration of 180 days from the date the execution of the sentence actually begins, the judge of the court that imposed such sentence may on his own motion or on written motion of the defendant, suspend further execution of the sentence imposed and place the defendant on probation under the terms and conditions of this article, if in the opinion of the judge the defendant would not benefit from further incarceration in a penitentiary. Probation may be granted under this section only if:
“(1) the defendant is otherwise eligible for probation under this article; and
“(2) the defendant had never before been incarcerated in a penitentiary serving a sentence for a felony; and
“(3) the offense for which the defendant was convicted was other than those defined by Section 19.02, 20.04, 22.021, 22.03, 22.04(a)(1), (2), or (3), 29.-03, 36.02, 38.07, 71.02 or a felony of the second degree under Section 38.10, Penal Code.

In Houlihan v. State, 579 S.W.2d 213 (Tex.Cr.App.1979), this Court reviewed the original enactment of the shock probation law in Texas, and observed that the grant of jurisdiction to the district court was of a very limited nature. There Houlihan was granted shock probation on the 126th day after the execution of the sentence began, and this Court held the court had lost jurisdiction at the expiration of the 120th day as provided in the original enactment.

In the instant case the court acted prematurely prior to acquiring jurisdiction under the statute, and we are confronted with the question of whether that should affect appellant’s claim of time credit on his sentence.

It seems well settled that where a defendant is erroneously or mistakenly released from incarceration through no fault of his own he is entitled to “flat time” credit for the time he was at liberty. Ex parte Downey, 471 S.W.2d 576 (Tex.Cr.App.1971); Ex parte Esquivel, 531 S.W.2d 339 (Tex.Cr.App.1976); Ex parte Tarlton, 582 S.W.2d 155 (Tex.Cr.App.1979); Ex parte Pizzalota, 610 S.W.2d 486 (Tex.Cr. App.1980). And this is true even if the releasing institution or official is unaware of the legal impediment to release. Ex parte Downey, supra; Ex parte Tarlton, supra, or if the release is due to a clerical mistake, Ex parte Pizzalota, supra.

It is also true, however, that if the defendant was a “moving factor” in obtaining his improper release he would not be entitled to credit in his sentence. See Ex parte Moneyhun, 161 Tex.Cr.R. 19, 274 S.W.2d 546 (1955). Moneyhun was confined for 120 days in jail as a result of three judgments. After he served 41 days, his attorney approached the county judge and requested Moneyhun’s release because of his health and on the condition he leave Taylor County. He was released and left the county, but after the expiration of the 120-day-period he returned. The County Judge then ordered him re-arrested and confined to serve the balance of 120 days not previously served. A district judge refused habeas corpus relief and Moneyhun appealed. This Court stated the record was not sufficient to show the County Judge acted under Article 137, V.A.C.C.P. (1925), for health reasons, and decided the case upon the void condition that Moneyhun left the county.

After distinguishing between Ex parte Griffin, 158 Tex.Cr.R. 570, 258 S.W.2d 324 (1953), and Ex parte Morgan, 159 Tex. Cr.R. 241, 262 S.W.2d 728 (1953), on one hand, and Ex parte Wyatt, 29 Tex.App. 398, 16 S.W. 301 (1891), on the other hand, this Court held that when Moneyhun’s attorney requested his release he (Moneyhun) became the moving factor and could not take advantage of a void order on the part of the county judge. See also Ex parte Williams, 301 S.W.2d 84 (Tex.Cr.App. 1957).

The principle of Moneyhun was later applied in Ex parte Massie, 278 S.W.2d 851 (Tex.Cr.App.1955). Massie applied for probation, but was convicted and given “straight time.” His conviction was affirmed on appeal. The mandate of this Court issued. However, the trial court then granted probation for the first time. In Massie this Court held the trial court was without authority to grant probation after issuance of the mandate, and Massie was not entitled to credit for time served on the illegally granted probation. Money-hun was extensively stretched by saying Massie was the moving factor in release on probation after issuance of the mandate because he had filed a pre-trial motion for probation. This was so the court noted because it was incumbent upon the applicant to exclude himself from the rule announced in Moneyhun, and the record was silent as to whether release on probation after the issuance of the mandate was the direct independent action of the judge or upon a subsequent request for probation by Massie.

In Adams v. State, 610 S.W.2d 780 (Tex.Cr.App.1981), relied upon by the Court of Appeals in the instant case, this Court applied the rule of Moneyhun. There, after Adams was convicted and incarcerated, he timely filed for “shock probation” more than 60 days after sentencing. However, he was not released on shock probation until after the court had lost jurisdiction to grant such a motion. Further, Adams was not eligible for shock probation in view of the conviction for involuntary manslaughter for which the statute prohibits “shock probation.” Thus the rule of Moneyhun was applicable since Adams was a moving factor in obtaining an improper grant of probation.

Tamez v. State, 620 S.W.2d 586 (Tex.Cr.App.1981), involved a bevy of miscues. Tamez filed a pretrial motion for probation without a specific request for “shock probation.” Following his guilty plea before the court, he was assessed a punishment of five years’ imprisonment and a $5,000.00 fine. In sentencing on the same day as the plea of guilty, the court granted “shock probation” before it had jurisdiction to do so. It then attempted to sentence Tamez to not less than 60 nor more than 120 days in the Department of Corrections. When the court did release Tamez on “shock probation,” it was after the court had lost jurisdiction to do so. In holding Tamez was not entitled to credit on his sentence while on probation, the Court cited Adams.

In the instant case the appellant Stasey’s attorney filed a motion for “shock probation” before the court had the authority to grant shock probation, but the motion recognized the situation and expressly requested the court to grant the motion on or after the 60-day-period set by statute.

At the outset it should be observed that appellant was eligible for shock probation under the statute in question. And it is clear that while Article 42.12, § 3e, V.A.C. C.P., related to the time limitations upon the court’s jurisdiction to grant probation, it places no limitations upon the filing of a motion for shock probation. The appellant cannot be faulted by the fact his counsel filed a motion prior to the time the court acquired jurisdiction to act, particularly where the motion specifically requested action only after the court acquired jurisdiction. Appellant did not ask for that to which he was not entitled. The court, without the appellant being present, granted the motion prematurely. Appellant was not released from the Department of Corrections until June 2, 1982 and then returned to Tom Green County and was placed on probation more than 60 days after sentencing.

The appellant did not request an improper act. While he acted through his attorney, he was not, under the circumstances, a moving factor in the court’s premature action. I would hold that appellant is entitled to credit on his sentence from May 27, 1982 until June 2, 1982, because he was still in confinement on those dates, and that he is entitled to credit for the time he was at liberty on probation, but he is not entitled to the credit for time at liberty on the appeal bond. Ex parte Allen, 548 S.W.2d 905 (Tex.Cr.App.1977); Tamez v. State, supra.

Thus I would reform the judgment of the Court of Appeals accordingly, and for the same reason dissent from the majority’s opinion whose views as to reform of judgment of the Court of Appeals differs.

CLINTON, J., joins this opinion.

TEAGUE, Judge,

dissenting.

The issue that is before this Court is whether John Paul (Mickey) Stasey, appellant, is entitled to have the records of the Department of Corrections reflect that his sentence commenced on March 31, 1982, and that he has continuously served his sentence. The question should be answered in the affirmative. I respectfully dissent to the majority’s implicit holding that the question should be answered in the negative.

The decision to unlawfully release Sta-sey on probation after he had commenced serving his sentence in the Department of Corrections was made solely by the trial judge in this cause and no other person, including Stasey. The record clearly reflects that Stasey had nothing to do with the trial judge’s decision to order his release, and he did not cause his release; instead, Stasey was released from the Department of Corrections because the trial judge told the authorities to release him, which they did on May 27, 1982. I am quite sure, however, that when the trial judge unlawfully ordered Stasey released to “shock probation”, he was acting in good faith, and by this dissent I do not mean to imply or suggest otherwise. But, it makes no difference what prompted his act: When he acted, he was acting without color of authority, or legal authority of any kind.

I believe that every single judicial act that has occurred in Stasey’s case since May 27, 1982, is void ab initio. Therefore, I agree with the statement the Austin Court of Appeals made in its unpublished opinion, that “Because appellant was never legally on shock probation, he is not in a position to complain of matters in connection with the revocation thereof.” However, I believe that Stasey is most certainly entitled to complain of the failure of the authorities to give him the jail time credit that he is legally due on his sentence.

In rejecting Stasey’s contention, the majority erroneously relies upon Ex parte Moneyhun, 161 Tex.Cr.R. 19, 274 S.W.2d 546 (1955), which in turn erroneously relied upon Ex parte Wyatt, 29 Tex.App. 398, 16 S.W. 301 (Tex.Cr.App.1891). What the majority overlooks, in its reliance upon those decisions, is that this Court in Ex parte Griffin, 258 S.W.2d 324 (Tex.Cr.App.1953), which the majority neither cites nor discusses, rejected the legal theory that if an official unlawfully orders a prisoner released, the prisoner is to be treated as an escaped prisoner, which is the basis for this Court’s holding in Ex parte Wyatt, supra, upon which Ex parte Moneyhun, supra, relies, in which this Court stated in part: “... we think the Wyatt case is here controlling.” But, the Wyatt case cannot be controlling in light of what this Court held in Griffin, supra, that such a prisoner is not an escapee. It is only through that legal theory that a prisoner, such as Stasey, can be held not to be continuously serving his sentence. But, Stasey is no more of an escapee than you or I, and the majority does not even suggest or imply that he might be.

It is true that if a defendant, through no fault of his own, is prematurely and erroneously released from incarceration, he is entitled to flat time credit for the time he was out of custody. Ex parte Morris, 626 S.W.2d 754 (Tex.Cr.App.1982). This rule of law was originated to overcome the harshness of the rule that, notwithstanding that the prisoner was unlawfully released by the authorities, through no fault of his own, he was deemed to be an escapee. Of course, if it was shown that the release resulted or occurred through some fault on the part of the prisoner, then the prisoner was deemed to be an escapee. However, therein lies the distinction.

In Ex parte Griffin, supra, after the defendant had commenced serving his six month misdemeanor sentence, the trial judge in that cause unlawfully ordered the defendant released from the Bowie County Jail and placed on misdemeanor probation. This, he could not lawfully do at that time. Subsequently, the Sheriff of Bowie County arrested the defendant and placed him back in the county jail so that he could serve the remainder of the six months in jail that had been assessed as part of the punishment in the case.

This Court in Ex parte Griffin, supra, relying upon Ex parte Eley, 9 Okla.Cr.R. 76, 130 P. 821, 823, which it “deemed pertinent and in point,” and which it is, held that the defendant Griffin was entitled to be credited for the time that he was at liberty under the probation, notwithstanding the fact that the trial judge was not legally authorized to grant the probation.

In pertinent part, the Court implicitly held that Griffin was not to be treated as an escapee; instead, he was to be treated as a “trusty.” It quoted and adopted the following, which the Oklahoma Court had stated in Ex parte Eley, supra:

The petitioner in this case did no more than any other intelligent human being would have done under like circumstances — that is, to go home, when the court who had sentenced him ... told him he could do so — and a rule could not be established, technical or otherwise, holding him to be an escapee and liable to reincarceration, without placing in the hands of county courts, sheriffs, and prosecuting attorneys the power to defeat every judgment of a court of record entered in this state, and permit them to harass and impose upon the unfortunate members of our citizenship, who happen to be convicted and sentenced for a crime, during an endless period, by placing them in jail to-day and releasing them to-morrow, with or without cause, as their caprice might suggest. The petitioner in this case was in the custody of the sheriff and subject to his call at all times until the expiration of the prison sentence, and was in legal effect a ‘trusty.’ Ex parte Eley, supra, at 823.

In this instance, there was no appeal from the original conviction. The judgment and sentence were never lawfully vacated, nor was Stasey ever released from confinement — until the trial judge unlawfully ordered him released from the Department of Corrections to the probation department of Tom Green County.

It is axiomatic that when a judgment and sentence are pronounced, and no appeal is taken, and a commitment issued and the prisoner is delivered to the custody of the Department of Corrections, as occurred in Stasey’s case, there are few legal ways that would have enabled him to be lawfully released before his sentence was satisfied. The method by which Stasey’s release occurred in this instance is not one of those legal ways. Because the trial judge acted unlawfully, his act of ordering Stasey released from confinement was void ab initio. Because Stasey had nothing to do with the trial judge’s decision to unlawfully order him released from the penitentiary, he was not an escapee. He is entitled to have the records of the Department of Corrections reflect that his sentence commenced on March 31, 1982, and that he has continuously served that sentence. Ex parte Griffin, supra. To the majority’s decision, which is not supported by any pertinent legal authority, and which holds to the contrary, I respectfully dissent.

      . As originally enacted the statute extended the trial court’s jurisdiction 120 days. In 1981 the legislature, by amendment, extended the trial court’s jurisdiction to grant a shock probation to 180 days from the date of execution of sentence.

      . The appellant had filed no motion for probation prior to his guilty plea.

      . There is no evidence in the record to support such assertions found only in the appellant’s brief.

      . Article 42.12, § 3e(a), was amended in 1981 to extend the court’s jurisdiction from the 60th day to the expiration of 180 days, giving the trial courts 60 more days than it had under the original enactment.

      . In Griffin the Court was careful to point out that by no conduct on Griffin’s part did he escape confinement. In Morgan the Court observed Morgan was not personally a moving factor in securing his release which resulted from a secret agreement between prisoner’s parents and the judge. In Wyatt the prisoner remained at large at his own request.

      . While the Adams opinion does not reflect, an examination of the record in that case shows Adams was sentenced on March 27, 1978, and the motion for shock probation was filed on July 6, 1978, and granted on August 7, 1978.


author: PER CURIAM.

text:
    Vernon Lee MIDDAUGH, Jr., Applicant, v. The STATE of Texas, Respondent.
    No. 69415.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 30, 1985.

      Vernon Lee Middaugh, pro se.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

PER CURIAM.

Applicant has filed an original application for writ of mandamus alleging that he is being restrained illegally of his liberty by the Texas Department of Corrections, and asking this Court to order his immediate release from such alleged unlawful confinement. Applicant was convicted of the offense of felony theft and, upon a finding that he had previously been convicted of two felonies, was sentenced to life. This occurred in the 56th Judicial District Court of Galveston County on January 19, 1978.

In the sworn petition filed in this Court, applicant alleges that the docket sheet of the district court from which his conviction originated clearly shows that on November 17, 1983, the trial court had granted him relief from the conviction, reassessed punishment at fifteen years’ confinement, and ordered his immediate release. Applicant further asserts that no order of release has been forthcoming, and that since the time of the November, 1983, order (as reflected on a sworn copy of the docket sheet attached to his petition) all records of his conviction have been lost or destroyed by the clerk of the convicting court. Thus, the only available record, he contends, is the docket entry showing he was previously granted relief. In support of these additional contentions, applicant has filed copies of letters written by him to the district clerk which have typed thereon alleged responses of the clerk stating that the file is missing and cannot be located. All of these items are incorporated by reference in his sworn petition.

It is applicant’s prayer that we issue our writ of mandamus to compel the Department of Corrections to release him in accordance with the docket entry of November, 1983. However, this application presents a more serious question. Certified copies of documents filed in this Court by the District Clerk of Galveston County indicate that the materials filed by applicant are obvious forgeries and that applicant has falsely sworn to the truth of his allegations as well as the authenticity of other documents attached to his application. Just as one may abuse the writ of habeas corpus [see Ex parte Dora, 548 S.W.2d 392 (Tex.Cr.App.1977), and Ex parte Emmons, 660 S.W.2d 106 (Tex.Cr.App.1983) ] we hold that this applicant has waived and abandoned any contention he might have in regard to the instant conviction.

During the past fiscal year there were 1797 writs of habeas corpus, mandamus and prohibition and other extraordinary matters filed in this Court. All of these items are carefully scrutinized by an already over-burdened Court. We should not and will not tolerate the filing of such perjurious material.

Therefore, the Honorable Thomas Lowe, Clerk of the Court of Criminal Appeals, is not to accept or file any further applications of this applicant attacking the conviction for which he is currently incarcerated unless the applicant has first shown that any contentions presented have not been previously raised and a showing is made that they could not have been presented in any earlier application. Ex parte Dora, supra, and Ex parte Bilton, 602 S.W.2d 534 (Tex.Cr.App.1980).

It further appearing that applicant may have violated the criminal statutes of this State, the Honorable Thomas Lowe is directed to forward a copy of this order, together with the records in this cause, to the prosecuting authority of Houston County (wherein applicant made the sworn affidavits that are now before us) in order that such prosecutor may take such action as he may deem appropriate.


text:
    John Earl DUPLECHIN, Appellant, v. The STATE of Texas, Appellee.
    No. 024-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 30, 1985.
    Buddy Stevens, Angleton, Volly C. Bas-tine, Jr., Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Calvin Hartmann and Kenneth Levi, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON COURT’S MOTION FOR PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted of aggravated assault. Punishment was mandatorily assessed at life. Appellant’s conviction was originally affirmed by the Twelfth Court of Appeals in Tyler. The Court of Appeals refused to review appellant’s grounds of error, holding that appellant had failed to preserve error. Duplechin v. State, 654 S.W.2d 20 (Tex.App.1983). Appellant alleged that he was erroneously punished as a habitual criminal insofar as one of the convictions used for enhancement was premised on a fundamentally defective indictment. This Court granted appellant’s petition for discretionary review and remanded this cause back to the Court of Appeals with orders to review appellant's assertions. Duplechin v. State, 652 S.W.2d 957 (Tex.Cr.App.1983).

The Court of Appeals on November 10, 1983 overruled appellant’s grounds of error, finding that the indictment in his prior conviction was not fundamentally defective. Appellant filed a petition for discretionary review which was refused. This Court, however, granted a petition for discretionary review on its own motion to review the Court of Appeal’s opinion.

We agree with the result reached by the Court of Appeals that appellant’s conviction should be affirmed. Accordingly, we will dismiss the petition for discretionary review as improvidently granted.

The petition for discretionary review is dismissed and the judgment affirming appellant’s conviction is affirmed.

      . V.T.C.A. Penal Code, Sec. 12.42(d) prior to 1983 amendment.


author: DRAUGHN, Justice.

text:
    Santos Covarrubias GARCIA a/k/a Santos Garcia Covarrubias, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-430CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 15, 1984.
    Discretionary Review Refused Oct. 24,1984.

      Albert Low, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

A jury found appellant guilty of murder and assessed punishment at thirty years’ imprisonment. Appellant now contends that there was insufficient evidence to support his conviction, that his right to silence was violated, and that certain questions and answers were sufficiently prejudicial to necessitate a mistrial. We find no reversible error and accordingly affirm the judgment of the trial court.

The trial record reflects that Leroy Schultz, foreman at an oil screen company, was on the job one morning when he heard five gunshots. He looked in the direction from where the shots came; and within five or six seconds, he observed a man backing out of the front seat on the driver’s side of a car parked alongside the road. He noted that the man was of Spanish descent and was wearing a straw hat with a greenish-blue shirt and dark ¿ants. As the man walked quickly away from the car, Schultz noticed that he put something down inside his belt. The man then continued on down the street.

Schultz summoned a co-worker, Mark Scully, to join him, and the two men followed the fleeing man in Schultz’s car. They passed the man twice and were able to get a good look at him. They observed that he was walking rapidly, looking back and forth, and appeared to be holding something inside his belt. Schultz and Scully then returned to the car where Schultz had first noticed the man. There, they found a man’s body in a ditch near the car, with three noticeable puncture wounds. Scully went back to the plant. The plant manager notified the police of the incident and relayed Scully’s description of the fleeing man. Based on this information, appellant was located and arrested twenty to thirty minutes later. A search revealed that he possessed a .32 caliber pistol.

In his initial ground of error, appellant contends that the trial court erred by overruling his motion for instructed verdict because there was insufficient evidence that appellant committed the offense. Since this case involves circumstantial evidence, the proper test is whether the evidence excludes every other reasonable hypothesis except the guilt of the accused. Carlsen v. State, 654 S.W.2d 444, 447 (Tex.Crim.App.1983). While a strong suspicion or mere probability is not enough, every fact need not individually point to the guilt of appellant; rather, the cumulative effect of the incriminating facts may be sufficient. Carlsen at 447. After reviewing the evidence and applying these standards, we find that there was sufficient evidence for the jury to conclude that appellant committed the offense. Indicative of this is the fact that both Schultz and Scully identified the appellant as the man they observed that morning. Further, a ballistics expert testified that he compared bullets fired from the pistol which appellant was carrying with a bullet found in the body of the deceased, and found that they were fired from the same weapon.

Appellant, however, claims that several inconsistencies in the evidence indicate that the appellant did not commit the offense. First, he contends that it would have been virtually impossible for appellant to have shot the victim, climb out of the ditch, enter the passenger side of the car, and exit the driver’s side of the car where Schultz saw him — all in the five to six seconds between the time Schultz heard the shots and when he saw appellant leaving the car. We do not perceive such an impossibility. There was some disagreement as to the depth of the ditch and the distance to the car. However, pictures introduced into evidence indicate that it was reasonably possible for appellant to travel that distance even in that period of time. The jury could, and did, reasonably so conclude.

Secondly, appellant points to the fact that the medical examiner recorded that a .38 caliber bullet was recovered from the victim’s head, while appellant was arrested with a .32 caliber pistol. Although the medical examiner clearly made this statement, the remainder of the testimony, from the balistics expert and other police officers, was that the victim was shot with a .32 caliber gun. It is thus reasonable to assume that the jury concluded the medical examiner simply made a mistake.

Finally, appellant claims that the failure to establish the time of death and the ownership of the murder weapon were fatal to the State’s case. Appellant suggests that it is possible someone else killed the victim and that appellant merely happened on to the scene, took the gun and fired five test shots in the air to insure that it worked. This is a novel hypothesis, however, we feel it is simply “too tall a tale to swallow.” See Callahan v. State, 502 S.W.2d 3, 7 (Tex.Crim.App.1973). We conclude that these discrepancies, viewed both individually and in terms of their cumulative effect, fail to present any reasonable hypothesis except that appellant committed the offense. The first ground of error is overruled.

In his second ground of error, appellant contends that the following testimony resulted in a violation of his post-arrest right to silence.

PROSECUTOR: All right. Now, after you read those rights to the Defendant in Spanish, did he acknowledge in some way that he understood those rights.
OFFICER VALENTA: Yes, sir. He appeared to acknowledge that he understood what I told him.
PROSECUTOR: Did the Defendant say anything to you or tell you anything at that time?
OFFICER: No, sir.

Appellant claims that because these statements referred to the period after appellant was given his Miranda warnings, the officer’s testimony necessarily called attention to appellant’s failure to provide an exculpatory statement and penalized him therefore. We disagree. The entire line of questioning examined whether appellant, who did not speak English, understood his constitutional rights. It reasonably appears that the State’s attorney was simply trying to elicit whether appellant indicated that he did or did not so understand. Taken in its obvious context, we find no violation of his right to silence, and accordingly overrule appellant’s second ground of error.

In his final two grounds of error, appellant contends that two lines of questioning were so prejudicial as to require a mistrial. He first points to appellant’s cross-examination of Detective Preece concerning a photograph taken of appellant at the police station.

Detective Preece: ... I was not personally present when these pictures were made.
Appellant’s Counsel: Was it done at your direction since you were the supervising detective.
Detective Preece: Yes, sir.
Counsel: Then you asked them — you knew about these pictures?
Preece: It’s a normal course of operation that whenever a statement is taken from anyone a Polaroid photo is made so that we can ...

At that point, appellant objected on the basis that the answer was nonresponsive. The judge sustained the objection and instructed the jury to disregard the reference to statements. Generally, an instruction to disregard an unresponsive answer inadvertently put before a jury is sufficient to cure the effect of such an answer. Williams v. State, 643 S.W.2d 136, 138 (Tex.Crim.App.1982). It requires reversal only if there is a reasonable possibility that the unresponsive answer affected the jury’s verdict of guilt or the punishment assessed. Williams at 138. The instant answer did not refer to the type or contents of the statement, nor was there any further reference to a statement during the remainder of the trial. As such, we do not find that the reference had any prejudicial impact on the jury.

During the punishment stage of the trial, the State’s attorney questioned appellant’s brother as follows:

Q: Now, Mr. Garcia, your brother is not a resident of the United States; is that true?
A: No.
Q: And is it also true, Mr. Garcia, that your brother does not even have any papers allowing him to remain legally here in the United States?

Appellant’s counsel objected before the witness answered and the jury was instructed to disregard the question. Appellant claims that the question was intended to inform the jury that appellant was an illegal alien, and was therefore improper and prejudicial.

As a general rule, an improper question can be cured or rendered harmless by either a withdrawal of the question or by an instruction to disregard. Carter v. State, 614 S.W.2d 821, 824-25 (Tex.Crim.App.1981); Adams v. State, 642 S.W.2d 211, 212 (Tex.App. — Houston [14th Dist.] 1982, no pet.). An instruction to disregard is inadequate to cure error when it appears the question is clearly calculated to inflame the minds of the jurors and is of such a character to suggest the impossibility of withdrawing the impression produced on their minds. Carter at 824-25; Adams at 212. Here, the witness did not answer the question, so the jury was never informed of appellant’s actual illegal status. While we do not approve of such attempts to interject improper evidence into the case, we feel that here the lack of an ultimate answer prevented it from rising to the point of being fundamental error and incurable. We find the court’s jury instructions were curatively sufficient under the circumstances of this case. Appellant’s third and fourth grounds of error are accordingly overruled.

The judgment of the trial court is affirmed.


author: YOUNG, Justice.

text:
    George V. LEAL, Appellant, v. FORD MOTOR CREDIT COMPANY, Appellee.
    No. 13-83-003-CV.
    Court of Appeals of Texas, Corpus Christi.
    Aug. 31, 1984.
    Rehearing Denied Nov. 1, 1984.

      Thomas M. Schumacher, Corpus Christi, for appellant.
    Rick Rogers, Porter, Rogers, Dahlman & Gordon, Corpus Christi, for appellee.
    Before NYE, C.J., and YOUNG and UTTER, JJ.
   OPINION

YOUNG, Justice.

This is an appeal from a judgment granted against appellant, George V. Leal, in favor of appellee, Ford Motor Credit Company (FMCC). Appellant sued appellee for alleged violations of the Texas Consumer Credit Code, Article 5069-7.01, et seq., TEX.REV.CIV.STAT.ANN. (Vernon Supp. 1984), in a retail installment contract that he had signed in connection with the purchase of a used motor vehicle. The trial court found no violations of the Code. We affirm.

Appellant contracted with Yates Ford, Inc., on August 11, 1977, for the purchase of a used 1977 Ford Thunderbird. Appellant executed a document entitled “Texas Automobile Retail Instalment (sic) Contract,” which is an FMCC form contract. The retail contract was subsequently assigned to FMCC by Yates. In connection with the purchase of the 1977 Thunderbird, appellant executed a document entitled “Agreement to Provide Insurance” which covered the vehicle against risks of fire, theft and collision. Appellant completed making the monthly installment payments six months ahead of schedule. The record does not show that appellant was late on any payments, nor that appellee attempted to repossess the vehicle or accelerate the remaining monthly payments. Appellant did not file suit for actual damages for breach of warranty or dissatisfaction with the vehicle. The suit was filed for statutory penalties based on technical violations of the Texas Consumer Credit Code.

Appellant complains of six points of error which, basically, raise three legal issues. The first issue is whether appellee complied with Art. 5069-8.01(c) in correcting the violation of Art. 5069-7.07(4), TEX. REV.CIV.STAT.ANN. (Vernon Supp.1984) in the retail installment contract, and covers points of error one, two, three, and six.

Appellant’s first point of error is that appellee could not provide any correction notice of the violation of Art. 5069-7.-07(4) under Art. 5069-8.01(c)(l) because Art. 5069-8.01(c)(l) is unconstitutional in that it impairs the obligations of parties to a contract. In Carbajal v. Ford Motor Credit Co., 658 S.W.2d 281 (Tex.App. — Corpus Christi 1983, writ dism’d), this Court considered a constitutional attack on the same statute for being an impairment of the obligation of contracts. After careful consideration of that contention, it was found to be without merit and was overruled. This is the same constitutionality-question, except for the slightly different contention that the violation cannot be removed by compliance with an unconstitutional provision. We reach the same result as in Carbajal by concluding that Art. 5069-8.01(e)(l) is not unconstitutional and, therefore, overrule appellant’s first point of error.

Appellant’s second and third points of error challenge the trial court’s findings that appellee actually discovered that language in paragraph 19 of the installment contract violated Art. 5069-7.07(4) on May 6, 1981, and that a correction notice was sent to appellant’s attorney within sixty days of the date when appellee actually discovered the violation. These same two points of error were raised in Carbajal in almost identical fact situations and overruled by this Court.

The clause in the contract that allegedly violates Art. 5069-7.07(4) provides:

Any personalty in or attached to the Property when repossessed may be held by Seller without liability and Buyer shall be deemed to have waived any claim thereto unless written demand by certified mail is made upon Seller within 24 hours after repossession.

Art. 5069-7.07(4) provides that no retail installment contract shall:

(4) Provide for a waiver of the buyer’s rights of action against the seller or holder or other person acting therefor for any illegal act committed in the collection of payments under the contract or agreement or in the repossession of a motor vehicle[.]

On May 6, 1981, the Texas Supreme Court in Zapata v. Ford Motor Credit Company, 615 S.W.2d 198 (Tex.1981) ruled on conflicting holdings by the Courts of Appeals on whether the clause was a violation of the Texas Consumer Credit Code. It ruled that the waiver clause in a contract that was the same as in our case was in violation of public policy and the Texas Consumer Credit Code. See Ford Motor Credit Co. v. Zapata, 605 S.W.2d 362 (Tex. Civ.App. — Beaumont 1980); Tradewinds Ford Sales, Inc. v. Caskey, 600 S.W.2d 865 (Tex.Civ.App. — Eastland 1980) (finding no violation in the clause); Ford Motor Credit Co. v. McDaniel, 613 S.W.2d 513 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r. e.); and, Ford Motor Credit Co. v. Brown, 613 S.W.2d 521 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r.e.) (finding a violation).

In response to that ruling, FMCC almost immediately (May 7, 1981) mailed correction letters to 94,710 Ford credit purchasers in Texas to serve as a notice of the defect in the retail installment contract and a correction of that defect under Art. 5069-8.01(c)(1) which provides that:

(c)(1) A person has no liability to an obli-gor for a violation of this Subtitle or of Chapter 14 of this Title if within 60 days after having actually discovered such violation such person corrects such violation as to such obligor by performing the required duty or act or by refunding any amount in excess of that authorized by law; provided, however, that such person gives written notice to such obligor of such violation prior to such obligor having given written notice of or having filed an action alleging such violation of this Subtitle or of Chapter 14 of this Title.

Paragraph (c)(1) also explains the term “actually discovered”:

As used herein, the term “actually discovered” shall not be construed, interpreted, or applied in such manner as to refer to the time or date when, through reasonable diligence, an ordinarily prudent person could or should have discovered or known as a matter of law or fact of the violation in question, but such term shall be construed, interpreted, and applied to refer to the time of the discovery of the violation in fact, provided, however, that the actual discovery of such violation in one transaction may constitute actual discovery of the same violation in other transactions if the violation actually discovered is of such nature that it would necessarily be repeated and would be clearly apparent in such other transactions without the necessity of examining all such other transactions.

The only difference between this case and Carbajal is that the notice in this case was alleged to have been sent to appellant, rather than an attorney, as in Carbajal. The question is when appellee had actual notice of the violation of Art. 5069-7.07(4). As noted in Carbajal, at 284, FMCC continuously defended its position that the twenty-four hour clause did not violate the Credit Code up until the Supreme Court’s ruling in Zapata, and, therefore, did not have actual notice of the defect until, at the earliest, May 6, 1981. The conflicting decisions of Courts of Appeals did not serve as sufficient notice. The fact that appellee’s attorney was the attorney of record in those cases before the Courts of Appeal does not alter the determination of when the violation was “actually discovered.” Appellant’s second and third points of error are overruled.

Appellant’s sixth point of error is a no evidence or insufficient evidence point that the correction notice was not actually shown to have been mailed to appellant by appellee. In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well-established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App. — Corpus Christi 1981, writ ref’d n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

The following findings of fact by the court are relevant:

16. On May 7, 1981, the Defendant, FORD MOTOR CREDIT COMPANY, caused a written correction notice to be sent by United States Mail to the Plaintiff at P.O. Box 2117, Alice, Texas 78332.
17. The address of the Plaintiff shown on the records of Ford Motor Credit Company and on the most recent document in the transaction was P.O. Box 2117, Alice, Texas 78332.
18. The written correction notice, Defendant’s Exhibit “4”, advised the Plaintiff of the violation of Article 5069-7.-07(4) and that the provision was deleted from the contract.
19. The written correction notices prepared by Ford Motor Credit Company to be mailed to customers of Ford Motor Credit Company, including the Plaintiff herein, were deposited with the United States Postal Service on May 7, 1981.
20. The written correction notice mailed to the plaintiff herein and other customers of Ford Motor Credit Company was mailed within sixty (60) days from the date Ford Motor Credit Company actually discovered the violation of Article 5069-7.07(4).
21. The written correction notice was mailed to the Plaintiff before the Plaintiff gave the Defendant, FORD MOTOR CREDIT COMPANY, written notice of the claimed violation and before the Plaintiff filed his complaint alleging the violation.

FMCC’s four Michigan employees (Smith, Meach, Gleason, and Vanstipdonk) testified by deposition of the procedures used to produce the form letters, to prepare and run the mailing list, and to mail the letters under a postal permit. The receipts from the U.S. Postal Service were entered as evidence that the 94,710 correction letters had in fact been mailed on May 7, 1981. While they could not testify about having seen the correct postage placed on a letter addressed to appellant, they could testify that the names and addresses on the computer list had been mailed copies of the correction letter. Appellant’s name appeared on that list before and after the letters were mailed. Testimony of a witness from the U.S. Postal Service further substantiated the mailing procedures using a postal permit. Testimony of FMCC’s branch office manager in Corpus Christi as to a file copy of the correction letter sent from Michigan and received by the branch office provided further evidence that FMCC had at least attempted to mail the notice to appellant at his last known address.

Appellant’s arguments are that appellant does not recall ever having received the correction letter. The May 7, 1981, letter was addressed to P.0. Box 2117, Alice, Texas 78832, but appellant had moved in December, 1980 and was no longer receiving mail from that box. Appellant challenged the depositions of the Michigan employees for being hearsay and not falling under the business records exemption under TEX.REY.CIV.STAT.ANN. Art. 3737e (Vernon Supp.1982), repealed effective September 1, 1983:

Section 1. A memorandum or record of an act, event or condition shall, insofar as relevant, be competent evidence of the occurrence of the act or event or the existence of the condition if the judge finds that:
(a) It was made in the regular course of business;
(b) It was the regular course of that business for an employee or representative of such business with personal knowledge of such act, event or condition to make such memorandum or record or to transmit information thereof to be included in such memorandum or record;
(c) it was made at or near the time of the act, event or condition or reasonably soon thereafter.

While none of the four Michigan employees appear to have personal knowledge of the whole operation (the preparation of the list of customers, the preparation of the correction notice, the procedure of addressing the letters, mailing the 94,710 letters by postal permit and forwarding copies to the branch offices), the overall testimony of the four employees taken together establishes the evidence of the mailing of the correction letters as a hearsay exception under Art. 3737e. Therefore, we hold that the evidence was admissible and was sufficient to show that a correction letter had been mailed to appellant at the last known address in accordance with the trial court’s findings. Appellant’s sixth point of error is overruled.

Appellant’s fourth point of error is that the trial court erred in not ruling that the contract allowed appellee to receive unearned financial charges and interest in violation of TEX.REV.CIV.STAT.ANN. Art. 5069-7.04 (Vernon Supp.1984). Specifically, appellant is complaining that paragraph 19 on the reverse side of the contract would allow the seller the right to retain all payments made prior to repossession, with the buyer remaining liable for any deficiency.

In Carbajal, 658 S.W.2d at 284, a similar clause was alleged to have violated Art. 5069-7.04 in the same way alleged in this point of error. That contract had a prepayment rebate clause (paragraph 14) identical to the contract in our case. This court, in that case, determined that the two paragraphs, 14 and 19, should be read together. The conclusion reached there is the same conclusion we reach in this case:

Unless the contract involved in this appeal, by its express and positive terms, evidences an intention which requires a construction that unearned interest was to be collected, we will interpret the contract as not requiring the collection of unearned interest. Shropshire v. Commerce Farm Credit Co. [120 Tex. 400], 39 S.W.2d 11 (1931). Ford Motor Credit Co. v. McDaniel, 613 S.W.2d 513 (Tex.Civ.App. — Corpus Christi 1981, writ ref’d n.r.e.). The contract before us provides that Seller shall have the right to retain the payments made prior to repossession. It also provides that in the event of a prepayment Buyer is entitled to a rebate of the unearned portion of the finance charge. It follows that should a repossession result in a prepayment or even a demand, seller could, under the contract, refund any unearned charges. “In examining a contract, which by its terms, is susceptible of more than one reasonable construction, this Court will adopt the construction which comports with legality.” Ford Motor Credit Co. v. McDaniel, supra, at 518.

Appellant’s fourth point of error is overruled.

Appellant’s fifth point of error is that the trial court erred in holding that the Seller provided appellant with a statement that clearly and conspicuously disclosed that physical damage insurance was required. Appellant is claiming that, since the notice was not clear and conspicuous, it violated TEX.REY.CIV.STAT.ANN. art 5069-7.06(3) (Vernon Supp.1984) which requires, in part, that:

(3) When insurance is required in connection with such a contract or agreement made under this Chapter, the seller or holder shall furnish the borrower a statement which shall clearly and conspicuously state that insurance is required in connection with the contract, and that the buyer shall have the option of furnishing the required insurance either through existing policies of insurance owned or controlled by him or of procuring and furnishing equivalent insurance coverages through any insurance company authorized to transact business in Texas _ Such statement or statements may be made in conjunction with or as part of the retail installment contract required by Article 7.02 or may be made in a separate written statement or statements, (emphasis added)

The following findings of fact apply to this point of error:

9. The retail installment contract in question clearly and conspicuously states that physical damage insurance was required.
10. The seller, YATES FORD, INC., furnished the Plaintiff a statement which clearly and conspicuously stated that physical damage insurance was required.
11. The Plaintiff knew at the time of the execution of the retail installment contract in question that physical damage insurance was required.
12. The Buyer was given the option of furnishing the required insurance through existing policies of insurance owned or controlled by him, or obtained by him through any insurance company authorized to transact business in Texas.

Under article 5069-7.06(3), it is necessary to look at both the retail installment contract and the agreement to provide insurance to determine whether the disclosure that physical damage insurance was required was clearly and conspicuously printed on at least one of them. The disclosure language found in the insurance agreement was in large, bold type and, therefore, was clear and conspicuous under Art. 5069-7.-06(3). Appellant’s signature on the Agreement to Provide Insurance also shows that he was aware of the requirement to provide physical damage insurance. The Car-bajal case held against this same type of point. Appellant complains of the paragraph entitled OPTIONAL INSURANCE and cites Portland Tradewinds Ford v. Lugo, 613 S.W.2d 26 (Tex.Civ.App. — Corpus Christi 1981, no writ). The word “Optional” refers to the means by which the required insurance may be provided (through Seller or by a third party) and not whether the insurance will be provided depending on buyer’s willingness or discretion. Carbajal points out how it and this case are distinguishable from Lugo:

The case before us is distinguishable from Lugo, in that here a second form was provided to and executed by appellant, which states: “I understand that to provide protection from serious financial loss, should an accident occur, my installment contract requires the vehicle to be continuously covered with insurance against the risks of fire, theft and collision.” This second document overcomes any confusion which may have been created by the retail installment contract itself. Carbajal, at 285. (Emphasis Added)

Appellant’s fifth point of error is overruled,

The judgment of the trial court is AFFIRMED.

      . Reversed on other grounds, 616 S.W.2d 935 (Tex.1981).


author: VANCE, Justice.

text:
    CITY OF GARLAND, Texas, By and Through its MAYOR AND CITY COUNCIL, Appellant, v. Bobby C. LOUTON and Garland Professional Firefighters Association, Appellees.
    No. 05-84-00036-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 21, 1984.
    Rehearing Denied Jan. 2, 1985.

      Charles M. Hinton, Jr., City Atty., Garland, Fred Weldon, Asst. Atty. Gen., Dallas, for appellant.
    Kenneth H. Molberg, Dallas, for appel-lees.
    Before STEPHENS, VANCE and ALLEN, JJ.
   On Motion For Rehearing

VANCE, Justice.

The appellant’s motion for rehearing is granted. Our former opinion is withdrawn and the following is now our opinion.

Appellees, Bobby Louton and the Garland Professional Firefighters Association (Louton), bring to this court a motion to dismiss the appeal brought by the appellant, City of Garland, from both the grant of a writ of mandamus by the 14th Judicial District Court directing that an election be held on the issue of firefighter pay raises, and the district court’s refusal to grant the City certain declaratory relief. We grant the motion to dismiss the appeal of the writ of mandamus because of mootness. Furthermore, the appellant’s challenge to the district court’s refusal to grant it certain declaratory relief is also overruled because the record before us shows no evidence of notice of the City’s counterclaim to the Attorney General of the State of Texas, as mandated by statute. Therefore, the trial court was without jurisdiction and properly dismissed the action.

This action was initiated by the appellee in the 14th Judicial District Court of Dallas County, Texas, seeking the issuance of a writ of mandamus directed to the City of Garland to compel the holding of a citywide referendum on the issue of increased pay for Garland firefighters, pursuant to TEX.REV.CIV.STAT.ANN. art. 1269q (Vernon Supp.1984). In addition to its answer to the firefighters’ petition for the writ, the City counterclaimed for declaratory relief, alleging that article 1269q is unconstitutional. Following trial to the court, the writ was granted and the City’s request for declaratory relief dismissed. The City subsequently brought this appeal. Meanwhile, the election which had been ordered by the court was held by the City on January 21, 1984.

Louton first contends that the City’s appeal from the issuance of the writ of mandamus ordering an election must be dismissed for mootness since the election has already been held and completed on January 21, 1984. The City contends, however, that we may not recognize the election because evidence of the election was not properly presented to the trial court. We disagree. A court of appeals may take judicial notice of matters which are of “common knowledge,” i.e., “certain, commonly known, easily ascertainable and indisputable facts.” Buckaloo Trucking Co. v. Johnson, 409 S.W.2d 911, 913 (Tex.Civ.App. — Corpus Christi 1966, no writ). Furthermore, if the facts are of common, everyday knowledge in the jurisdiction, which everyone of average intelligence and knowledge can be presumed to know, and are not disputable, then this court may take judicial notice. See City of Austin v. Setter, 415 S.W.2d 489, 501 (Tex.Civ.App.— Austin 1967, writ ref’d n.r.e.); TEX.R. EVID. 201. We hold that the fact that the City of Garland held a municipal election on January 21, 1984, is certain, commonly known, easily ascertainable, and an indisputable fact, and thus we may take judicial notice of the fact of the election. See Moore v. Gordon, 122 S.W.2d 239, 242 (Tex.Civ.App. — Beaumont 1938, writ dism’d) (court of appeals held that very recently held municipal bond election was a matter of “common knowledge”).

The Texas Supreme Court has held in City of West University Place v. Martin, 132 Tex. 354, 123 S.W.2d 638 (1939), that when a city appeals from a writ of mandamus issued against it, the appeal itself suspends the trial court’s issuance of the writ without the necessity of filing a supersedeas bond and the court’s order need not and should not be carried out. Id. at 638-39; TEX.REV.CIV.STAT.ANN. art. 1174 (Vernon 1963). Furthermore, if a city goes ahead and carries out the order of the trial court contained in the writ of mandamus, the case must be dismissed for mootness since there no longer exists any actual controversy between the parties on the date of submission to the appellate court. Martin, 123 S.W.2d at 639. Thus, since the City has already held the election and thereby carried out the order of the trial court, there is no longer any controversy between the parties for this court to hear. Accordingly, the appeal of the writ of mandamus is dismissed as moot.

The City’s appeal of the district court’s refusal to grant the declaratory relief sought in its counterclaim is also dismissed. The record before us is completely void of any evidence that the Attorney General of the State of Texas was properly served with process as mandated by TEX. REV.CIV.STAT.ANN. art. 2524-1, § 11 (Vernon 1965). Thus, the trial court lacked jurisdiction to proceed with the action. Accordingly, dismissal was appropriate. Commissioners Court of Harris County v. Peoples National Utility Co., 538 S.W.2d 228 (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref’d n.r.e.); Burke v. Hutcheson, 537 S.W.2d 312, 315 (Tex.Civ. App. — Eastland 1976, writ ref’d n.r.e.). We note, however, that the recitations in the court’s judgment stated that the action was “dismissed upon the merits.” (emphasis added). Nevertheless, since the court was without jurisdiction to proceed with the action, the dismissal was not one on the merits, regardless of any recitations to the contrary by the trial court. However, since such recitations were erroneously entered into the judgment, we order that the judgment be reformed and the words “upon the merits” deleted.

The City contends, however, that because Louton did not make any objection to the jurisdiction of the court at trial, then any objection was thereby waived. We disagree. Lack of jurisdiction is a fundamental error which may be reviewed for the first time on appeal. Texas Employment Commission v. International Union of Electrical, Radio and Machine Workers, Local No. 782, 163 Tex. 135, 352 S.W.2d 252, 253 (1961); Long v. Fox, 625 S.W.2d 376 (Tex.App. — San Antonio 1981, writ ref’d n.r.e.); see Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982). Furthermore, because the error is fundamental, it must be noted and reviewed by the appellate court at any time it appears. Fincher v. City of Texarkana, 598 S.W.2d 22, 23 (Tex.Civ.App. — Texarkana 1980, writ ref’d n.r. e.). Thus, even though not properly raised at trial, the trial court lacked jurisdiction to hear this cause of action and, accordingly, dismissal was appropriate.

The appeal from the writ of mandamus is dismissed, the trial court’s dismissal of the City’s counterclaim is affirmed, and the trial court’s judgment is hereby ordered reformed.


author: JUNELL, Justice.

text:
    G & R INVESTMENT, et al., Appellants, v. James K. NANCE, Jr., Appellee.
    No. C14-83-642-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 4, 1984.

      Chris C. Pappas, Wyckoff, Russell, Dunn & Frazier, Houston, for appellants.
    Brantley Harris, Prappas, Moncrue, Harris & Eidman, Houston, for appellee.
    Before JUNELL, SEARS and SHARPE, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a judgment in a suit on a promissory note. G & R Investment, a partnership, Guy J. Robertson and Richard P. Schissler, Jr., sued to recover on a promissory note executed by James K. Nance, Appellee. Nance affirmatively pled the defense of limitations and moved for summary judgment. The trial court granted the defendant’s motion and entered judgment that the plaintiffs take nothing. At issue is when the limitation period begins to run on a note that is payable “on demand or if no demand be made, on February 2, 1978.” We reverse and remand because we find that, absent evidence that demand was made before February 2,1978, the note matured and limitations began to run on that date.

The note in question is dated August 2, 1976. An action for debt evidenced by a writing must be commenced within four years after the cause of action accrued. Tex.Rev.Civ.Stat.Ann. art. 5527 (Vernon Supp.1984). Ordinarily, the statute of limitations begins to run on a demand note on the date of making. Seaman v. Seaman, 425 S.W.2d 339, 342 (Tex. 1968). When demand is a condition precedent to suit on a note, the statute of limitations begins to run on the date of demand. Foreman v. Graham, 363 S.W.2d 371 (Tex. Civ.App. — Beaumont 1962, no writ). The terms of the Nance note did make demand a condition precedent. Loomis v. Republic National Bank, 653 S.W.2d 75 (Tex.Civ. App. — Dallas 1983, writ ref’d n.r.e.). In Loomis the court interpreted a note that was payable “on demand or if no demand be made 1-31-77.” The court held that the note was due on January 31, 1977, unless a prior demand had been made. Demand was waived if not made before January 31. No demand having been made, the court held that the note matured and the statute of limitations began to run on January 31, 1977. That holding is sound and we follow it here. We hold that the Nance note matured on February 2, 1978. Suit filed on January 29,1982, less than four years from the date of maturity, was not barred by the statute of limitations.

Appellee argues that Loomis was wrongly decided. We believe appellee relies on cases that are not on point.

The trial court was in error when it granted summary judgment for Appellee. There is no need to consider appellant’s alternative point of error.

The judgment is reversed and the case is remanded for trial on the merits.