author: BROCK, Justice.

text:
    Linda KILPATRICK, Plaintiff-Appellee, v. EMERSON ELECTRIC COMPANY, Defendant-Appellant.
    Supreme Court of Tennessee.
    Jan. 22, 1985.
    Rehearing Denied March 11, 1985.
    George C. Thomas, Thomas, Welles & Thomas, Dresden, for plaintiff-appellee.
    Richard L. Dunlap, III, Paris, for defendant-appellant.
   OPINION

BROCK, Justice.

In this worker’s compensation case the Chancellor found that the plaintiff had sustained an occupational disease while employed with defendant and awarded benefits for medical expenses, compensation for temporary total disability and compensation for permanent partial disability in the amount of 75% of the body as a whole. On this appeal the defendant questions only the award of 75% permanent partial disability benefits; defendant asserts that the evidence does not support permanent partial disability to the extent awarded. We affirm the decree of the Chancellor.

The only medical evidence in the record is the testimony of Dr. Robert L. Kaplan, a certified dermatologist, who examined and treated the plaintiff's allergy condition over an extensive period of time. He found the plaintiff to be allergic to Melcote No. 1, Melcote No. 2, rubber gloves, tetramethyl-thriuram disulfide, which is a compound used in the making of rubber, thiuram mix, another compound used in the making of rubber products. These allergens occurred in the environment in which the plaintiff worked at the employer’s factory. In addition to those items, Dr. Kaplan found that she was also allergic to acrylic monomer, a compound used in glues; cinnamic alcohol, which is used in perfumes; hexachlora-phene, a disinfectant, and paraben mix which is a preservative used in some topical medications. These last four allergens did not occur in the work environment of the plaintiff. With respect to these last four allergens which were not work connected the doctor testified that “... they didn’t contribute to her present condition.” Dr. Kaplan testified that the plaintiff would be allergic to these various allergens for the remainder of her life.

Lay testimony of the plaintiff and her husband was to the effect that prior to her employment with the defendant the plaintiff had never experienced any allergies or dermatitis although she had on many occasions been exposed to rubber compounds and some of the other allergens above mentioned which now cause her to suffer dermatitis. Dr. Kaplan explained:

“Q. Now would you state whether or not a person can handle certain chemicals for a long period of time without being sensitive and then either gradually or subtly become sensitive to those agents?
“A. That is correct. We have subtle changes in our immune system where we can be exposed to something, for example, like nickel, which has been very common in other (our) environment for years, and all of a sudden we become allergic to it. We don’t know exactly why we have these changes in our immune system, but it certainly is a fact of life.
******
“Q. Do you have an opinion based upon a reasonable medical certainty as to the cause of Mrs. Kilpatrick’s dermatitis that she is suffering from now?
“A. I know Melcote 1 and Melcote 2 and rubber were certainly causing this particular dermatitis.”

Dr. Kaplan further testified that the plaintiff is disabled to work in any environment where the above mentioned allergens are present.

Dr. Lome Semrau, a clinical psychologist, specializing as a vocational expert, testified that the plaintiff had an IQ of only 89 and functioned within “... the lower range of dull normal intelligent, slightly above borderline mental retardation.” He further testified that considering the plaintiff’s limited mental faculties and education and because of “... the type of products to which she is allergic and because of their use in the regional economy within the industrial force, that alone would eliminate her from at least 75% of the industrial work ...” available to her.

Other testimony is to the effect that the plaintiff attempted to return to her work with the defendant but had a severe allergic reaction and was unable to continue and that she attempted to attend a vocational school for retraining but in that environment also suffered a severe allergic reaction which forced her to quit.

The defendant offered no medical or other expert testimony to rebut the evidence, above outlined, which was presented on behalf of the plaintiff. The defendant complains that the opinion of Dr. Semrau with respect to the extent of plaintiff’s disability was based, in part, upon her allergy to acrylic monomer, found in glues, cinnamic alcohol, used in perfumes, hexachlora-phene, a disinfectant and paraben mix, a preservative, which were not found in her work environment with the defendant. But, in this regard, the plaintiff, in response to the defendant’s own questions, testified as follows:

“Q. Now, has he told you that you are allergic to glue?
“A. Yes.
“Q. Do you blame that on Emerson Electric Company?
“A. He said that was such a violent reaction that I had that it has caused more allergies because I have no resistance. It just broke down my whole system because I was so sick I couldn’t even get out of bed. That’s how violent it was. And he — and in his opinion he said yes, it did bring it on.
“Q. All of those allergy problems that you have?
“A. Yes, because I used to wear makeup a lot. I wore perfume. Now I cannot. I have wore make-up on occasions. And the doctor has fussed at me because I did have a rash and I had to take it off.
“Q. So it is your position today that any allergy that you have is a result of this reaction to either the rubber or Melcote?
“A. Yes.”

Of course, this particular testimony of the plaintiff probably would have been objectionable but for the fact the defendant not only did not object to its introduction but affirmatively elicited the same. We regard it as probative, especially since it was not contradicted by Dr. Kaplan and since the plaintiff had not experienced allergy on coming in contact with these particular compounds prior to her exposure to Melcote 1 and Melcote 2 and rubber compounds in her work environment with the defendant.

In our opinion the evidence as a whole fully supports the findings and award made by the Chancellor and his decree is in all things affirmed.

The plaintiff-appellee insists that she is entitled to invoke the remedy afforded by T.C.A., § 27-1-122, on the ground that the appeal in this case is frivolous and was taken solely for delay. Our review of the evidence, the findings and decree of the Chancellor, the briefs the parties filed in this Court, and the oral argument of counsel convinces us that this appeal in fact was frivolous and that damages should be awarded. The appellant has cited no evidence or rule of law which tends to entitle it to a reversal or other relief from the decree of the Chancellor. Therefore, we find that the appeal was frivolous and award to the appellee damages against the appellant which shall consist of all costs incurred on appeal, interest on that part of the Chancellor’s award which had accrued at the time the appeal was perfected from the date of the appeal until such interest is paid and expenses incurred by the appellee as a result of the appeal, including a reasonable attorney’s fee, the amount of which is to be determined by the Chancellor upon remand. Lambert v. Travelers Ins. Co., Tenn., 626 S.W.2d 265 (1981).

This cause is remanded to the Chancellor for such further proceedings as are consistent with this Opinion.

COOPER, C.J., and FONES, HARBISON and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: BROCK, Justice. FONES, Justice,

license: Public Domain

text:
    Stephanie EVRIDGE, a Minor b/n/f and Father, Joe Evridge and Joe Evridge, Individually, Plaintiffs-Appellees, v. AMERICAN HONDA MOTOR COMPANY, INC., and Honda Motor Company, Ltd., Defendants-Appellants.
    Supreme Court of Tennessee at Knoxville.
    Feb. 19, 1985.

      Charles B. Lewis, Linda J. Hamilton, Knoxville, for defendants-appellants.
    R.R. Ruth, Jr., James W. Milam, Chattanooga, for plaintiffs-appellees.
   OPINION

BROCK, Justice.

I

Stephanie Evridge and her father brought this action against the manufacturer and the distributor of a motorbike to recover for injuries received by Stephanie in an accident while she was a passenger on a motorbike. The complaint sets forth causes of action based on strict liability and negligence theories.

On the day of the accident, six year old Stephanie was playing in her yard while nine year old Brian Hyde, her neighbor, “doubled” his sister on his Honda Express nearby. Brian agreed to let Stephanie double. They had moved only a few feet when Stephanie’s foot slipped down and was trapped between the rear wheel and the hot exhaust pipe on the bike. She suffered third degree burns to her foot.

Brian is an experienced motorbike operator, having operated them since he was three years old. His parents are also very experienced in operating motorcycles. Brian received the Honda Express a few weeks prior to the accident from his parents. They purchased the bike from Brian’s uncle. It was a used bike and came with no warranty or owner’s manual.

The Honda Express, as described by the Court of Appeals,

”... was designed with a muffler on the right side and with the rear wheel suspended on an axle mounted on the left side. During operation of the motorbike, the inside of the muffler is at a high temperature. There was a cooling guard on the top and along the outside of the muffler, but there was no bracket, guard or support member between the muffler and the spokes of the rear wheel. The space between the muffler and the rear wheel was large enough for a child to get a foot caught between the hot muffler and the rear wheel. As manufactured, the Honda was equipped with a luggage rack which was attached to the rear fender immediately behind the operator’s seat. The Honda did not have regular foot pegs for a passenger, however, it did have a chain guard on the left side and a muffler guard on the right side which were flat enough to be used as foot rests for a passenger seated on the luggage rack. The luggage rack was flat enough for a passenger to ride on it.”

The Honda Express comes with a decal located on the headlight, visible to the operator, which reads:

WARNING

OPERATOR ONLY

NO PASSENGERS

Located on the oil tank under the luggage rack behind the seat is another decal which is captioned “CAUTION.” Along with other specifications, the decal states:

“VEHICLE CAPACITY LOAD: 180 lbs. (82 Kg) OPERATOR ONLY. FRONT 7 lbs. (WITH OPTIONAL CARRIER FITTED). REAR 11 lbs.”

The owner’s manual for the Honda Express, which was not seen by the Hydes, contains the following statement on the inside of the front page:

“IMPORTANT NOTICE
“OPERATOR ONLY. NO PASSENGERS.
“This motorcycle is designed and constructed as an operator only model. The seating configuration does not safety [sic] permit the carrying of a passenger. Do not exceed the vehicle capacity load limit shown on the tire information label.”

Later, under the heading “WARNING,” the manual states,

“Exhaust pipe and muffler become very hot during operation and remain sufficiently hot to inflict burns if touched, even after shutting off the engine. Wear clothing which will completely cover the legs while riding and avoid any contact with unshielded portions of the exhaust system.
“Do not wear loose clothing which may catch on control levers, starter pedal, foot pegs, wheels and tires.”

Brian and his parents admitted in depositions that they had seen and understood the warning on the headlight decal. Nevertheless, Brian was given permission to double his younger sister, but was told “to be real careful and not to be making sharp turns, quick turns, or anything like that ...” when he was carrying her. Mr. Hyde gave as his reasons for allowing Brian to double his sister that “all the other kids in the neighborhood, they doubled on theirs and there were two decent places to put your feet” (the top of the muffler guard and the chain guard) and there was a luggage rack on which a passenger could sit. Mrs. Hyde deposed that, although she realized that the manufacturer instructed that no passengers should ride on the motorbike, she felt it was safe to ride passengers on it and would not have allowed her daughter to ride otherwise. Brian was not expressly given permission to double anyone other than his sister, but was not told not to double anyone else.

Neither Stephanie nor her parents had seen the decals on the Honda prior to the accident. Her parents deposed that they were not asked to give permission to Stephanie to ride on the bike and would have denied permission if it had been requested. Stephanie had never ridden on a motorcycle before the accident.

The trial judge granted the defendant’s motion for summary judgment on the basis that the acts of Brian and his parents in intentionally ignoring the warning which they saw and understood “constitute an efficient, predominant, and intervening cause....” The plaintiff appealed to the Court of Appeals which reversed the judgment of the trial court and remanded for a trial on the merits. We granted defendant’s application for discretionary review.

II

The defendants first contend that the Court of Appeals erred in reversing the trial court’s grant of summary judgment in their favor because the actions of Brian and his parents in failing to follow the warnings are, as a matter of law, an intervening cause sufficient to relieve the defendant of liability, assuming liability would otherwise exist.

The doctrine of intervening cause has been concisely stated as follows:

“ ‘Damage cannot be attributed to a given negligent act as its proximate cause when it appears that subsequent to that negligence, a new, independent, and unexpected factor intervenes which itself appears to be the natural and real occasion of the mischief. The intervening cause breaks the chain of legal causation and relieves the original negligent actor of responsibility.’ ” Ford Motor Co. v. Wagoner, 183 Tenn. 392, 401, 192 S.W.2d 840, 844 (1946), quoting, 1 Street, Foundations of Legal Liability, 120.

An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated. Ford Motor Co. v. Wagoner, 183 Tenn. at 399, 192 S.W.2d at 843.

The issue of proximate or intervening cause is one for the jury to decide, unless the uncontroverted facts and the inferences to be drawn from them make it so clear that all reasonable men must agree on the outcome. E.g., Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 281 (Tenn.App.1977). The characterization as an intervening cause of the failure to heed a warning is a determination that is particularly for the jury because of the test of foreseeability which is attached to that characterization. Young v. Reliance Electric Co., 584 S.W.2d 663, 669 (Tenn.App.1979).

The Restatement (Second) of Torts (1965) is in accord with the general principles outlined above. Section 447 states, in pertinent part:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
“(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
“(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted,....”

As to the respective function of the court and jury, § 453 states:

“It is the exclusive function of the court to declare the existence or non-existence of rules which restrict the actor’s responsibility short of making him liable for harm which his negligent conduct is a substantial factor in bringing about, and to determine the circumstances to which such rules are applicable.”

Comment b to § 453 specifically addresses the application of that section to situations such as the one at bar:

“b. If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor’s liability. If, however, the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done (see §§ 447 and 448) is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.”

Turning to the facts of this case, there is proof that, even though the Honda Express is not designed to carry passengers, there is a flat place where a child passenger can sit and places for a child to put his or her feet. There is evidence that children in the neighborhood where the accident occurred often “doubled” other children on the back of Honda Express motorbikes. There is proof that Brian’s parents only gave him permission to double his sister, who was familiar with riding as a passenger on a motorbike. We cannot say, as a matter of law, that it was not reasonably foreseeable that under the circumstances outlined above, a parent would fail to heed the warnings and would allow his child, an experienced motorbike operator, to double his sister on a Honda Express after instructing him on how to drive to ensure that his sister would remain steady on the bike. We also cannot say it was not reasonably foreseeable that a nine-year-old child would fail to heed the warnings. Thus, in our opinion, a genuine issue as to a material fact was made out, and the grant of summary judgment was error. Rule 56, T.R.C.P.

Ill

Defendants next contend that the warnings given by them are sufficient, as a matter of law, to foreclose the imposition upon them of liability for plaintiff’s injuries.

In support of their contention, the defendants rely in part upon Restatement (Second) of Torts, § 402A comment j, which states in pertinent part:

“Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.”

We agree, as we must, that adequate warnings can be relied upon by a manufacturer or seller to escape liability for failure to warn of non-obvious dangers associated with a product. However, we think that the statement quoted above presupposes warnings which are adequate. If it does not, then to that extent we are not persuaded by it. The following observation points out the circularity of the presumption which defendant would have us adopt:

“The Restatement presumption would apply when a warning is actually given and, because it does not take into account whether that warning is adequate, it is in reality meaningless. If an adequate warning is given, there is no liability for failing to provide an adequate warning, and it hardly matters whether that adequate warning was read and heeded.” J. Beasley, Products Liability and the Unreasonably Dangerous Requirement 439 (1981).

Thus, the question remains as to whether or not the warnings were adequate as a matter of law.

An adequate warning is “one calculated to bring home to a reasonably prudent user of the product the nature and the extent of the danger involved in using the product.” See Trimble v. Irwin, 59 Tenn. App. 465, 473, 441 S.W.2d 818, 822 (1968). In formulating their warning, the defendants were required to take into account the fact that the Honda Express was designed and intended for the use of children. See Henry v. Crook, 202 A.D. 19, 195 N.Y.S. 642 (1922). Compare Johnson v. Safeway Stores, Inc., 1 Wash.App. 380, 461 P.2d 890 (1969). The adequacy of the warning is a question for the jury unless reasonable minds could agree on the outcome. See Young v. Reliance Electric Co., supra, 584 S.W.2d at 668.

We conclude that at this stage of the proceedings there exist genuine issues of fact with respect to (1) the adequacy of the warnings given by the defendants to bring home to a reasonably prudent user of the Honda Express, particularly a young child, the nature and extent of the danger involved in “doubling” passengers on it and (2) whether this vehicle was negligently designed, as asserted in the affidavit filed by the plaintiff.

We do not express any opinion on the merits of these issues other than to hold that the defendants are not entitled to judgment on them as a matter of law at this point.

The judgment of the Court of Appeals reversing the judgment of the trial court is affirmed and this cause is remanded to the trial court for a trial on the merits. Costs incurred upon appeal are taxed against the defendants-appellants.

COOPER, C.J., and HARBISON and DROWOTA, JJ., concur.

FONES, J., filing dissenting opinion.

FONES, Justice,

dissenting.

I respectfully dissent.

In my opinion, the warnings given by the manufacturer were adequate as a matter of law and, in addition, I agree with the trial judge’s finding that the acts of Brian Hyde, and his parents, in intentionally ignoring those warnings were an efficient, predominant, intervening cause.

I would reverse the judgment of the Court of Appeals and affirm the trial court’s action in dismissing this lawsuit.


author: DROWOTA, Justice.

text:
    BOWATER NORTH AMERICA CORPORATION, Plaintiff-Appellee, v. Donald W. JACKSON, Commissioner of Revenue, State of Tennessee, Defendant-Appellant.
    Supreme Court of Tennessee, at Nashville.
    Feb. 19, 1985.

      H. Rowan Leathers, III, Asst. Atty. Gen., Nashville, for defendant-appellant; W.J. Michael Cody, Atty. Gen. and Reporter, Nashville, of counsel.
    F. Clay Bailey, Jr., Nashville, for plaintiff-appellee.
    W. Ovid Collins, Jr., Nashville, for ami-cus curiae, Tennessee Manufacturer’s Ass’n.
   OPINION

DROWOTA, Justice.

The taxpayer, Bowater North America Corporation, brought this suit against the Commissioner of Revenue for recovery of local sales taxes paid on industrial machinery. The Chancellor granted relief to the taxpayer and the Commissioner has appealed to this Court.

The issue in this case is whether the Legislature’s exemption of industrial machinery from the state sales tax also exempts the property in question from the local option sales tax. The lawsuit involves a construction of the 1963 Local Option Revenue Act, T.C.A. §§ 67-6-701 et seq. and T.C.A. § 67-6-206(a), as amended in 1980, which exempted industrial machinery from all state sales taxes as of July 1, 1983.

The facts were stipulated and are not in dispute. Plaintiff is a foreign corporation duly qualified to do business in Tennessee with its principal Tennessee office located in Calhoun, Tennessee. Bowater was assessed local sales and use taxes by the Commissioner of Revenue for the period of July, 1983 through March, 1984. The taxpayer was assessed $101,321.58 for this period, pursuant to T.C.A. §§ 67-6-702(a)(1), (b) and § 67-6-710.

The Plaintiff takes the position that industrial machinery is exempted from both state and local taxation of industrial machinery by T.C.A. § 67-6-206(a). That section, as amended in 1980, operated to phase out the state sales tax on industrial machinery by providing that

notwithstanding other provisions of this chapter, tax imposed with respect to industrial machinery as defined in § 67-6-102 shall be at the following rate:
(1) July 1, 1980 — June 30, 1981— .75%
(2) July 1, 1981 — June 30, 1982— .50%
(3) July 1, 1982 — June 30, 1983— .25%
(4) On and after July 1, 1983, no tax is due with respect to industrial machinery.

Plaintiff argues that the Legislature intended to exempt industrial machinery from both the state tax and the local option sales tax. It further argues that the privileges which local governments may tax are restricted to those taxed by the State and the amount of the local option tax is restricted to a certain fraction of the state tax. T.C.A. § 67-6-702(a)(l). It is also the position of the Plaintiff that the Legislature intended to encourage manufacturing and industrial development and that subjecting industrial machinery to the local option sales tax would frustrate that purpose.

The Defendant argues that the local option sales tax is separate and distinct from the state sales tax, and that the collection of the local tax is not dependent on the existence of a similar state sales tax. The Commissioner concedes that the 1980 amendment was intended to encourage industrial development by phasing out the tax on industrial machinery. However, the Commissioner argues that the revenue needs of local governments which gave rise to the local option sales tax override the policy of encouraging industrial development. He maintains that the fact that the local option sales was not explicitly repealed indicates the Legislature intended to maintain the local option tax on industrial machinery.

Our reading of the statutes in question reveals a clear legislative intent to remove all sales taxes on industrial machinery. As previously indicated, T.C.A. § 67-6-206(a) provides that “[o]n and after July 1, 1983, no tax is due with respect to industrial machinery.” (emphasis added). The Commissioner tells us that the “words of a statute should be taken in their ordinary sense without any forced or subtle construction,” citing Hall Contracting Corp. v. Tidwell, 507 S.W.2d 697 (Tenn.1974). We are in complete agreement. We believe the Legislature meant that no tax is due with respect to industrial machinery when it said: “no tax is due with respect to industrial machinery.”

In addition, it is apparent that a “local option” tax contemplates taxation of a privilege that is already subject to state taxation. T.C.A. § 67-6-702 and the Department of Revenue Rules support this interpretation. In a 1980 publication entitled “Tennessee Sales and Use Tax Laws,” the Department of Revenue states that the Local Option Revenue Act authorizes local governments “to levy a tax on the same privileges subject to the Retailers’ Sales Tax Act.... Tangible personal property which is per se exempt from the state sales and use tax is exempt from the local option tax.” We agree.

T.C.A. § 67-6-206, as amended, embraces by its specific language, or at least by clear implication, both the state sales tax and the local option tax on industrial machinery. Accordingly, the judgment of the Chancellor in favor of the Plaintiff is affirmed. Costs of this appeal shall be taxed to the Defendant.

COOPER, C.J., FONES and BROCK, JJ., and SHRIVER, Special Justice, concur.


author: KILGARLIN, Justice.

text:
    Dan BROWN, Petitioner, v. Irvin GOLDSTEIN et al., Respondents.
    No. C-3280.
    Supreme Court of Texas.
    Feb. 13, 1985.
    Buck C. Miller, Houston, for petitioner.
    Harvill & Hardy, Pat McKenna, Houston, for respondents.
   KILGARLIN, Justice.

The issue in this appeal of an award in a personal injury case is whether requested defensive issues and instructions should have been given. Irvin Goldstein, as next friend of his children, Adele and Robert Goldstein, sued Dan Brown for personal injuries sustained by Adele and Robert in an automobile accident.

At the conclusion of a jury trial, the judge refused to submit requested instructions on unavoidable accident and sudden emergency and requested issues on contributory negligence. Based on answers to those issues that were submitted, judgment was rendered for the Goldsteins. The court of appeals, with one justice dissenting, affirmed that judgment, holding that the trial court’s refusal to submit defendant’s requested issues and instructions was proper. 678 S.W.2d 539. We disagree and therefore reverse the judgments of the courts below and remand the case to the trial court for a new trial.

At the time of the events in issue, Adele Goldstein, with her brother Robert as her passenger, was driving in the far left lane of Interstate Highway 610 (West Loop South) in Houston. Dan Brown was driving in the adjacent lane to her right. Brown testified that: (1) his car’s electrical system failed and his engine, signal lights, and horn all ceased to work; (2) because the electrical system had failed, he had additional difficulties with his power steering and brakes; (3) he attempted to remove his car from the highway by waving his left hand out the window and pointing towards the emergency lane next to the center guardrail; (4) he saw Adele’s car overtaking him in the lane to his left; (5) because of her car, he did not attempt to change lanes; and (6) Adele and Robert passed him unimpeded, and then she swerved into the emergency lane, lost control of her car and hit the guardrail. Other evidence was that Brown’s car was found abandoned on the right side of West Loop South about one-fourth mile further down the road. The car was towed away by the police, and Brown did not return to the accident scene until everyone was gone.

Adele and Robert’s testimony significantly differed from that of Brown. They testified that: (1) Brown approached them from behind, traveling at a faster speed; (2) his car had not completely passed them when he attempted to switch into their lane; (3) to avoid a collision Adele immediately swerved into the emergency lane and applied her brakes; and, (4) she then hit the guardrail which led to her personal injuries and those of Robert.

Brown complains, among other things, of the trial court’s refusal to submit issues on Adele’s contributory negligence. Specifically, Brown requested issues asking if Adele had failed to keep a proper lookout and had failed to apply her brakes properly.

Submission of special issues is governed by Tex.R.Civ.P. 279. Rule 279, long a part of the practice of Texas lawyers, requires attorneys to submit adequately prepared special issues in substantially correct form. In the event that those issues are the controlling issues, properly supported by the pleadings and the evidence, the trial court is to submit them to the jury. Hodges, Special Issue Submission in Texas § 2 (1959). That is to say that a trial court may not refuse to submit an issue merely because the evidence was insufficient to support a judgment. Guit-tard, Protecting the Record for Appeal, Tex. Trial Law.F. at 11-13 (1978). A judge may refuse to submit an issue only if no evidence exists to warrant its submission. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

Brown’s contributory negligence issues on improper lookout and failure to properly apply the brakes were submitted to the trial court in substantially correct form. Nevertheless, the court of appeals stated that “under the facts of this case Adele did not owe a duty to appellant [Brown] to let him enter her lane of traffic.” 678 S.W.2d at 542 (emphasis in original). The appeals court determined that if Adele owed no duty to Brown, then she could not be negligent in failing to keep a proper lookout. Thus, the court of appeals reasoned that the trial court did not err in submitting the issue. Again, we disagree. See DeWinne v. Allen, 154 Tex. 316, 320, 277 S.W.2d 95, 98 (1955). See also Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958).

Here the evidence is conflicting. Brown testified that he signaled with his hand as Adele approached him. At one point Adele testified that she entered the emergency lane to avoid being hit, and at another point testified that she did not know if Brown ever entered her lane. In addition, it is unclear from the evidence if Adele was cognizant of the guardrail until after she hit it. The Goldsteins, during oral argument, suggested that there was no causal connection between Adele’s failure to keep a proper lookout and the accident. Although this may be true, that question is a fact issue to be decided by the jury-

In a case of this character [improper lookout], standards of ordinary care such as the direction and extent of the observation which Mrs. Ricketts should have made at any particular time cannot be fixed with any degree of certainty but must be left in large measure to the trier of fact. It is well settled, moreover, that negligence and causation, like any other ultimate fact, may be established by circumstantial as well as direct evidence. [Citations omitted.] The jury is thus not only the judge of the facts and circumstances proven but may also draw reasonable inferences and deductions from the evidence adduced before it.

Lynch v. Ricketts, 314 S.W.2d at 275-76. A proper application of the no evidence rule and an examination of probative evidence of improper lookout in this case demonstrates that the issue should have been submitted.

The court of appeals also erred in holding that the issue of Adele’s proper lookout was not controlling. They recited Brown’s version of the facts that Brown “was not liable — not, however, because Adele failed to keep a proper lookout, but because he was not negligent.” 678 S.W.2d at 542. But, there was some evidence that Brown did enter Adele’s lane, thus causing Adele to swerve, lose control of her car, and hit the guardrail. Although this evidence came largely from the plaintiffs and is inconsistent with Brown’s testimony that he did not enter Adele’s lane, Brown is not precluded from arguing inconsistent theories.

Brown properly pleaded his theories of defense and the Texas Rules 'of Civil Procedure allow alternative pleading even of inconsistent theories. The only require-’ ment to allow submission of inconsistent theories to the jury is that there be evidence to support the issues. Nor can it be said that Brown’s testimony is a judicial admission forcing him to adhere to one theory. To constitute an admission of a party, the admission cannot be destructive of the opposing party’s theory of recovery. Mendoza v. Fidelity and Guaranty Insurance Underwriters, 606 S.W.2d 692, 694 (Tex.1980).

The reason for this requirement for a conclusive admission was discussed in United States Fidelity & Guaranty Co. v. Carr, 242 S.W.2d 224 (Tex.Civ.App.—San Antonio 1951, writ ref’d). That court stated that “[ujnless we abandon reality and consider a lawsuit as a species of a game, we cannot recognize something as an established fact for one side and deny its existence for the other side.” Id. at 229-30. In drafting the charge, the trial court could not refuse Brown’s defense by conclusively binding him to his testimony that he did not swerve into Adele’s lane. For this reason, the court of appeals erred in holding that the issue on Adele’s proper lookout was properly denied because Brown’s defensive theory was inconsistent with his version of the facts and therefore not controlling.

The testimony as to Adele’s proper application of the brakes is also conflicting. Adele’s testimony is that she properly used her brakes. Physical evidence provided by the police officer who investigated the accident scene indicates that Adele should have applied her brakes much sooner than she did. Because the manner and timeliness of applying her brakes is a disputed factual question, the trial court improperly refused to submit that issue to the jury.

Brown also complains of the trial court’s failure to submit his requested instructions on sudden emergency and unavoidable accident. The court of appeals rejected this argument partly because there was no evidence to support the submission of these instructions. Because we agree that there was no evidence to support submitting these instructions, we find it unnecessary to further address Brown’s contentions. We hold that the court of appeals reached the correct result in affirming the trial court’s refusal of Brown’s requested instructions on sudden emergency and unavoidable accident.

Having held that Brown was entitled to special issues on contributory negligence, we reverse the judgments of the courts below and remand the case for a new trial.


author: HILL, Chief Justice.

text:
    Bernald Ross STUBBS, Petitioner, v. Ruth Yvonne STUBBS, Respondent.
    No. C-3127.
    Supreme Court of Texas.
    Feb. 27, 1985.

      Robertson, Railsback & Shoultz, William V. Dorsaneo, III and Stephen W. Shoultz, Dallas, for petitioner.
    James J. Hartnett, Dallas, for respondent.
   HILL, Chief Justice.

The question presented for our consideration is whether Ruth Stubbs has met the criteria enabling her to proceed by writ of error review in the court of appeals more than five months after judgment. Ruth Stubbs sought review by writ of error to the court of appeals from the divorce decree granting a divorce to her husband, Dr. Bernald Ross Stubbs. The court of appeals denied a motion by Dr. Stubbs to dismiss the petition for writ of error. 654 S.W.2d 838. In a separate opinion, the court of appeals reversed and remanded those portions of the trial court’s judgment adjudicating the property division and child support and it affirmed the judgment in all other respects. 671 S.W.2d 70. We affirm the judgments of the court of appeals.

On September 30, 1982, Bernald and Ruth Stubbs signed an agreement incident to divorce prepared by Bernald’s attorney. The agreement provided for the division of marital property and for the conservator-ship and support of the Stubbs’ minor child. Ruth Stubbs also signed a waiver of citation. She did not waive the making of a statement of facts. The next day, Dr. Stubbs appeared with his attorney before the trial court. No record was made of the trial court proceedings. The trial judge rendered a decree of divorce reciting that the court heard the evidence and argument of counsel in the case and incorporating the parties’ agreement. The decree also recites that Ruth Stubbs did not appear in person or by an attorney. Ruth Stubbs petitioned for writ of error review of the court’s decision concerning the division of marital property and the payment of child support. She did not raise conservatorship issues.

The four elements necessary for a review by writ of error are: (1) the petition must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the trial; and (4) error must be apparent from the face of the record. Brown v. McLennan County Children’s Protective Services, 627 S.W.2d 390, 392 (Tex.1982). It is undisputed that Ruth Stubbs timely petitioned for writ of error review and that she was a party to the suit. The issues presented here are whether she participated in the trial and whether error appears on the face of the record. We first consider Ruth Stubbs’ participation.

Article 2249a, section 1, Tex.Rev.Civ. Stat.Ann., now rule 360(2), Tex.R.Civ.P., provided:

No party who participates either in person or by his attorney in the actual trial of the case in the trial court shall be entitled to review by the Court of Civil Appeals through means of writ of error.

[Emphasis added.] Dr. Stubbs contends that Ruth Stubbs participated in the trial within the meaning of article 2249a by signing the waiver of citation and the agreement incident to divorce.

We defined “actual trial” in Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096, 1097 (1941) as ordinarily understood to be the hearing in open court, leading up to the rendition of judgment, on the questions of law and fact. We noted that article 2249a should be liberally construed in favor of the right to appeal. The courts have recognized that the extent of participation in the actual trial of the case disqualifying a party under article 2249a is a matter of degree. For example, taking part in all steps of summary judgment proceeding except appearance at hearing on the motion for summary judgment, Norman v. Dallas Cowboys Football Club, 665 S.W.2d 137 (Tex.App.—Dallas 1983, no writ); Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.—Amarillo 1973, writ dism’d), or confession of judgment by attorney of record, Lewis v. Beaver, 588 S.W.2d 685 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref d n.r.e.), constitutes participation. Filing an answer,- Phillips Petroleum Co. v. Bivins, 423 S.W.2d 340 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.), or a motion for new trial, Lawyers Lloyds, is not participation.

We hold that signing the waiver of citation and the divorce agreement were not sufficient acts of participation to preclude Ruth Stubbs from obtaining writ of error review. We approve the court of appeals’ holding in Blankinship v. Blankinship, 572 S.W.2d 807 (Tex.Civ.App.— Houston [14th Dist.] 1978, no writ), relied upon by Dr. Stubbs. We believe that case is distinguishable, however. Johnny Blan-kinship, who was denied writ of error review of a divorce judgment against him, not only waived citation; he expressly waived the making of a statement of facts, and he signed the judgment prior to its entry by the trial court.

We next consider the fourth element necessary for writ of error review— whether there is error apparent from the face of the record. The papers on file in the case do not contain a statement of facts. The official court reporter was unable to furnish Ruth Stubbs a record of the proceedings at trial. Ruth Stubbs contends that Texas Family Code section 11.14(d) required the court to make a record of the trial proceedings and that in this case the absence from the record of a statement of facts constitutes error on the face of the record. We agree.

Texas Family Code section 11.14(d) requires that a record be made in all suits affecting the parent-child relationship “as in civil cases generally unless waived by the parties with the consent of the court.” This case is governed by section 11.14(d) because the court adjudicated not only a property division but also custody of the Stubbs’ minor child and child support payments. See Texas Family Code §§ 3.55(b), 11.01(5).

Section 11.14(d) places a duty on the court to make a record of the proceedings in the same manner as did article 2324, Tex.Rev.Civ.Stat.Ann., before its amendment in 1975. Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978). This means that all oral testimony must be recorded. It is the responsibility of the trial judge to see that the court reporter performs this duty. Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 315 (Tex.Civ.App.—Dallas 1975, writ ref’d). In this case, section 11.14(d) was violated because there was no record made of the testimony adduced at the hearing.

Dr. Stubbs cites Brown v. McLennan County Children’s Protective Services, 627 S.W.2d 390 (Tex.1982), as authority for his argument that the waiver of citation and the agreement incident to divorce signed by Ruth Stubbs satisfy the requirement of a complete record under section 11.14(d). We held in Brown that the absence of a statement of facts did not violate section 11.14(d) in a termination of parental rights case because the complaining party had voluntarily executed an irrevocable affidavit relinquishing those rights prior to hearing. Section 15.03(d) of the Family Code expressly provided for the irrevocability of affidavits made to State authorized adoption agencies. We found that by enacting section 15.03(d), the legislature intended to make such irrevocable affidavits of relinquishment sufficient evidence on which the trial court could find termination to be in the children’s best interests. No statement of facts was necessary unless it could be demonstrated that the irrevocable affidavit was obtained by fraud, misrepresentation or overreaching.

Our holding in Brown does not control here. Unlike the affidavit in Brown, the agreement signed by Ruth Stubbs was not irrevocable. On the contrary, section 3.631(a) of the Family Code provides that agreements incident to divorce may be repudiated prior to the rendition of the divorce. We hold that the failure to provide Ruth Stubbs with a statement of facts in violation of section 11.14(d) constitutes error on the face of the record, allowing Ruth Stubbs to appeal by writ of error.

We affirm the judgments of the court of appeals which remanded this cause to the trial court for a new trial on the property division and child support issues.


author: RAY, Justice.

text:
    Aurora H. ALVARADO, et al., Petitioners, v. CITY OF LUBBOCK, Respondent.
    No. C-3159.
    Supreme Court of Texas.
    March 6, 1985.

      Templeton & Garner, Nancy J. Stone and Robert E. Garner, Sanders, Kiser & Baker, Herman Jesko and Van Northern, Amarillo, for petitioners.
    Crenshaw, Dupree & Milam, Cecil Kuhne, Lubbock, for respondent.
   RAY, Justice.

This appeal arises from a wrongful death lawsuit brought by several members of the Alvarado family against the City of Lubbock and others as a result of an accident that took the life of Samuel Alvarado. At issue is whether the summary judgment evidence conclusively supports the trial court’s rendition of summary judgment for the City. The court of appeals, in an unpublished opinion, Tex.R.Civ.P. 452, affirmed the trial court judgment. We reverse the judgments of the courts below and remand the cause to the trial court for a trial on the merits.

The accident in question occurred on May 8, 1978 at the intersection of Southeast Drive and 50th Street in Lubbock, Texas. Southeast Drive at that location is State Highway FM 835. Alvarado was a passenger in a car proceeding westbound on 50th Street that was hit by an automobile travel-ling southbound on Southeast Drive. At that time, the speed limit on the southbound lane of Southeast Drive just north of 50th Street was posted at 55 mph. The actual speed limit, however, as provided by a city ordinance, was 50 mph. Thus, the Alvarados assert that the City was negligent in failing to post an accurate sign.

The trial court granted summary judgment for the City. The court of appeals affirmed, reasoning that the Alvarados’ pleadings contained an admission that the State possessed exclusive control of Southeast Drive and that uncontroverted deposition testimony presented as summary judgment evidence further supported this conclusion. Consequently, that court held that the City owed no duty to Samuel Alvarado with respect to the erroneous sign.

The court of appeals held that the following statement made by the Alvarados in their pleadings constituted an admission: “the STATE DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION COMMISSION assumed the duty of maintenance of such highway in question on or before January 1,1974.” Immediately preceding this statement in the pleadings, however, the Alvarados allege that the City committed negligence in lowering the speed limit without replacing the sign to reflect this change. Also, immediately following the statement, the pleadings continue:

[t]he State Department of Highways and Public Transportation Commission, therefore, has breached the same duties which the City of Lubbock has breached in failing to maintain the speed limit signs as set out in the foregoing paragraphs, and because of the absence of a clear, definitive agreement between such parties, both Defendants, the City of Lubbock and the State Department of Highways and Public Transportation Commission, have breached duties owed to Plaintiffs.

Rule 45, Tex.R.Civ.P., provides that “[a]ll pleadings shall be so construed as to do substantial justice.” This requires a court to read the pleadings as a whole and examine each statement in its proper context before determining that a party made an admission. Here, it is clear that the Alvar-ados allege that the State Department of Highways and the City were jointly responsible for the maintenance of the speed limit signs on Southeast Drive. Consequently, the court of appeals erred in construing the statement as an admission.

The deposition testimony relied upon by the court of appeals to affirm the trial court’s summary judgment was that of Bill McDaniel, the Traffic Engineering Director for the City of Lubbock. McDaniel testified that the City once was responsible, for the upkeep of the sign, but that this duty shifted to the State after his 1973 telephone conversation with George Wall, a district engineer for the State Highway Department. During this telephone call, McDaniel and Wall agreed that the State would assume the maintenance of speed limit signs on state highways in Lubbock. Tex.Rev.Civ.Stat.Ann. article 6673b (Vernon 1977), however, only permits a city’s governing body and the State Highway Commission to enter into agreements involving the maintenance of state highways. See Hale v. City of Dallas, 335 S.W.2d 785 (Tex.Civ.App.—Dallas 1960, writ ref’d n.r. e.). Thus, an oral agreement between these two engineers is not sufficient to alter the responsibility over the maintenance of speed limit signs.

The City further claims that certain Texas statutes mandate exclusive state control over the maintenance of speed limit signs on state highways. See articles 6701d, § 30 and 6701f (Vernon 1977). While the state does exercise control over the maintenance of speed limit signs on state highways, this control is not necessarily exclusive. See article 6674w-5 (Vernon 1977). For example, article 6701d, § 169(b) (Vernon 1977) expressly grants cities the power to alter speed limits. In fact, the city ordinance which lowered the speed limit in question from 55 mph to 50 mph specifically referred to this statute. Thus, in the absence of a valid agreement between the State Highway Commission and the City delegating exclusive responsibility for the maintenance of speed limit signs to the State, the City cannot conclusively prove that it owed no duty to Samuel Alvarado with respect to the erroneous sign.

Finally, the City argues that the Texas Tort Claims Act, article 6252-19 (Vernon 1970 and Vernon Supp.1985), precludes the Alvarados’ cause of action because the Act provides no exception to the City’s governmental immunity and that the Alvarados failed to comply with the Act’s notice requirement, article 6252-19, § 16 (Vernon 1970). We disagree. Section 14(12) excepts from the Act’s ambit:

[a]ny claim arising from the absence, condition, or malfunction of any traffic or road sign, signal, or warning device unless such absence, condition or malfunction shall not be corrected by the governmental unit responsible within a reasonable time after notice.

This cause involves the absence of or condition of a traffic sign, so the City can be held liable unless it did not have notice of the erroneous sign. The summary judgment evidence, however, does not conclusively establish that the City was without notice of the discrepancy between the posted sign and the actual speed limit. To the contrary, the summary judgment evidence included several city traffic citations and Lubbock police accident reports explicitly noting the difference between the posted speed limits on either side of Southeast Drive. Thus, a fact question exists on whether the City received notice of the erroneous sign. In section 16, the Texas Tort Claims Act requires parties to give notice of their claim within six months of the incident, unless the governmental unit has actual notice of the death or injury. The determination of whether the City had actual notice of Samuel Alvarado’s death is also a fact question. Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex.1982). Furthermore, six of the Alvarados are minors and section 16 does not apply to them. City of Houston v. Torres, 621 S.W.2d 588, 591 (Tex.=1981).

In conclusion, the City’s summary judgment proof is insufficient to conclusively establish that it owed no duty to Samuel Alvarado with respect to the erroneous sign. Also, fact questions exist pertaining to the notice requirements found in article 6252-19, §§ 14(12) and 16 (Vernon 1970). Accordingly, we reverse the judgment of the court of appeals and remand this cause to the trial court for a trial on the merits.

      . All further reference to Tex.Rev.Civ.Stat.Ann. will be to the specific article.

      . Article 6701d, § 169(b) in part provides:
      The governing body of an incorporated city ... with respect to any highway ... including ... a highway of the State Highway System, within its corporate limits, shall have the same authority by city ordinance to alter maximum prima facie speed limits ... as that delegated to the State Highway Commission. ...


author: PER CURIAM.

text:
    Robert C. MATTHEWS et ux., Petitioners, v. CANDLEWOOD BUILDERS, INC. et al., Respondents.
    No. C-3416.
    Supreme Court of Texas.
    March 6, 1985.

      Earl Rutledge, Fort Worth, for petitioners.
    Lively, Wilson & Gieb, John Lively and Conrad Kasselman, Jr., Fort Worth, for respondents.
   PER CURIAM.

The question we review is whether Matthews was entitled to recover attorney fees on his counterclaim that Candlewood failed to timely complete a residence. In an unpublished opinion, the court of appeals held that Matthews was not entitled to attorney fees. We reverse the court of appeals’ denial of Matthews’ attorney fees and render judgment that Matthews recover these fees. We affirm the judgment of the court of appeals in all other respects.

Candlewood, a construction company, and Matthews entered into a written contract whereby Candlewood was to construct a residence for Matthews within a 160-day period. Candlewood sued Matthews for debt based on the contract. Matthews counterclaimed alleging that Candle-wood breached the contract and violated the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), Tex.Bus. & Com.Code Ann. §§ 17.41-63. Matthews alleged four separate grounds for recovery of damages against Candlewood: (1) failure to build the house substantially free of defects in materials and workmanship; (2) construction of a beam and truss foundation inferior to that originally designed; (3) failure to timely complete the house; and (4) calculation of the wallpaper allowance in a false, misleading and deceptive manner. Matthews also sought attorney fees under the DTPA and under Tex.Rev.Civ.Stat.Ann. article 2226.

The case was tried to a jury which awarded Candlewood $2,676.25. The jury awarded Matthews $672.00 for interim construction loan interest based upon Matthews’ claim that Candlewood failed to timely complete the residence. The jury also awarded Matthews attorney fees. The trial court disregarded numerous jury findings including this award of attorney fees. Judgment was rendered for Candlewood in the net amount of $2,004.25. The court of appeals affirmed the trial court’s judgment, holding that Matthews could not recover attorney fees and that he was only entitled to an offset.

We held in McKinley v. Drozd, 685 S.W.2d 7 (Tex.1985), that a consumer can recover attorney fees incurred in the successful prosecution of a DTPA claim, even though the amount of damages awarded to the consumer is entirely offset by the amount awarded to an opposing party. We also decided that the same rule applies for recovery of attorney fees under article 2226. Accordingly we hold that Matthews is entitled to attorney fees based on his recovery of the $672.00 against Candle-wood.

Candlewood complains that the attorney fees award should be denied because Matthews has furnished no evidence by which the fees could be allocated to the claims in which they were incurred. The special issue on attorney fees, however, requested the jury to find Matthews’ attorney fees for the entire case, rather than separately allocating the fees to each attorney fee bearing claim, as recommended in Bray v. Curtis, 544 S.W.2d 816, 820 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.). Candlewood did not object to this broad attorney fee issue; therefore, any complaint that the trial court allowed the jury to consider and award attorney fees not associated with Matthews’ successful claim has been waived. Tex.R.Civ.P. 274.

Pursuant to Tex.R.Civ.P. 483, and without hearing oral argument, we reverse the judgment of the court of appeals on the issue of attorney fees and render judgment that Matthews recover these fees. We affirm the judgment of the court of appeals in all other respects.


author: MILLER, Judge. CLINTON, Judge, TEAGUE, Judge,

text:
    Robert Lee LADAY, Appellant, v. The STATE of Texas, Appellee.
    No. 399-84.
    Court of Criminal Appeals of Texas, En Banc.
    Jan. 9, 1985.
    Douglas M. Barlow, Beaumont, for appellant.
    James S. McGrath, Dist. Atty. and R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

This is an appeal from a conviction for burglary of a building pursuant to V.T.C.A. Penal Code, § 30.02(A)(1). Punishment, enhanced by proof of one prior felony conviction for aggravated assault, was assessed by the jury at 30 years confinement in the Texas Department of Corrections.

On February 29, 1984, the Beaumont Court of Appeals reversed the judgment of the trial court and ordered the cause remanded for a new trial. The court of appeals held that the State had failed to prove that appellant was the identical person who had previously been convicted of burglary of a building in Cause No. 37774 on March 4, 1980. Laday v. State, 685 S.W.2d 681 (Tex.App.—Beaumont, 1984). At the punishment phase of appellant’s trial, the judgment and sentence in Cause No. 37774 were admitted into evidence to show the appellant’s prior criminal record in accordance with Art. 37.07, § 3, V.A.C.C.P. The court of appeals held that there was no proof that appellant and the person named in the judgment and sentence were the same individual. Further, the court of appeals held that, even though there was no trial objection complaining of the failure to introduce identification evidence, such error was fundamental and required reversal.

In its petition for discretionary review, the State for the first time indicates that the record shows that the appellant and the person named in the judgment and sentence in Cause No. 37774 are the same individual.

The record reflects that the appellant took the witness stand and testified in his own behalf at the guilt-innocence stage of trial. During cross examination by the prosecuting attorney, the following colloquy occurred:

“Q. Mr. Laday, I want to make sure that you are the same Robert Lee Laday, who was finally convicted in Cause Number 36820, in the 252nd District Court of Jefferson County, Texas, on March fourth, Nineteen-eighty, for the offense of Burglary of a Building?
“A. Yes, sir.
“Q. And are you, also, the same Robert Lee Laday who was finally convicted in Cause Number 37774, in the 252nd District Court of Jefferson County, Texas, on March fourth, Nineteen-eighty, for the offense of Aggravated Assault?
“A. Well, I was convicted to serve those two cases running “CC”, yes, sir. “Q. Okay. You got sentences to run concurrent?
“A. Yes, sir.
“Q. But you are the same person finally convicted in each of those Cause Numbers?
“A. Yes, sir.”

This Court has approved several different methods by which it may be proved that a defendant is the same person previously convicted. See, Daniel v. State, 585 S.W.2d 688, 690-91 (Tex.Cr.App.1979). One such method is a judicial admission of the defendant that he has been so convicted. Daniels, supra; Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974); Beard v. State, 458 S.W.2d 85 (Tex.Cr.App.1970).

We find that appellant’s judicial admission at the guilt-innocence stage of trial is sufficient to prove he was the same individual named in the judgment and sentence in Cause Number 37774. Having so held, we need not consider whether the lack of such proof constitutes “fundamental error.”

The judgment of the court of appeals is reversed and the cause is remanded for consideration of appellant’s other grounds of error.

CLINTON, Judge,

concurring.

The reason for reversal given by the Beaumont Court of Appeals is: “We believe and find that when the State introduces a previous conviction and offers absolutely no proof of identification, the error is fundamental.”

To justify that significant statement of law neither the court of appeals nor the parties have found any case “precisely on point.” So we granted review to decide whether the statement is accurate, and, now that for the first time the State had discovered some evidence of that conviction, a majority wanted also to determine disposition of the underlying premise of appellant that, as stated by the court of appeals, “there was no evidence offered by the State to identify appellant as the person so convicted in [the exhibit].”

Both the State and appellant failed the court of appeals. Appellant did not comprehend the effect of his testimony admitting prior convictions; neither on original submission nor on motion for rehearing did the State refute his contention that there was no evidence of identity. The point is purely a factual issue that should have been, but was not, joined in the court of appeals. Having granted review and found testimony contrary to the premise for which appellant contended, we are confronted with resolution of a matter so poorly presented to the court of appeals.

The power and authority granted this Court is to review “decisions of the courts of appeals.” Article V, § 5, Constitution of the State of Texas; Articles 4.04, § 2, 44.01 and 44.45, V.A.C.C.P. A decision flows from “the reason for such decision” set forth in a written opinion of a court of appeals. Article 44.24, id. Thus, the discretionary function of the Court is to determine whether “the reason for such decision” is correct in law. However, the majority expressly declines to address the reason given by the court of appeals for its decision to reverse the judgment of conviction in this cause, although review was granted for that very purpose. Instead, the majority favors the State with a sort of de novo determination of a claim that has not been presented to and decided by the court of appeals.

Accordingly, the Court should review the significant statement of law given by the court of appeals as the reason for its decision, rather than dispose of the cause on a point that patently was not presented to that court nor decided by it. I will not approve such cavalier disregard of orderly exercise of power and authority in this Court to review decisions of courts of appeals and, therefore, do not join the majority opinion.

In my judgment, however, the reason given by court of appeals for its decision is not, in the circumstances shown by the record in this cause, “fundamental error.” Thus, I concur in the judgment of the Court.

TEAGUE, Judge,

dissenting.

I respectfully dissent to what the majority does in this cause because, in light of what has now been belatedly urged by the State before this Court, I believe that the proper course of action would be to remand this cause to the Beaumont Court of Appeals for it to reconsider its opinion.

The majority opinion correctly observes in its footnote 1 that “[njeither party pointed the court [of appeals] to the appellant’s judicial admission at the guilt-innocence phase of trial.” See Branch v. State, 445 S.W.2d 756 (Tex.Cr.App.1969), in which this Court stated the following, “We specifically reject appellant’s claim that evidence offered at the guilt stage of the proceedings cannot be considered in determining the issue or issues to be determined at the penalty stage of the proceedings.” (758).

The local assistant district attorney, who represented the State before the court of appeals and who also filed the petition for discretionary review on behalf of the State of Texas, confesses the following before this Court: “The State submits that the State’s attorney [sic] on appeal ... overlooked the fact that appellant had admitted during the guilt phase [of the trial] that he was the same person who was convicted in Cause No. 37774 in the 252nd District Court of Jefferson County, Texas.”

Thus, this Court is now placed in the position of reviewing, not by way of a petition for discretionary review, but by direct appeal, the State’s belatedly urged contention. However, when it comes to some contention that the State urges before this Court in a petition for discretionary review, this Court has held the following: “The Rules of Post Trial and Appellate Procedure in Criminal Cases governing petitions for discretionary review in this Court do not authorize review of claims which have not been presented in an orderly fashion and determined by the appropriate court of appeals.” Noel v. State (Tex.Cr.App., No. 827-83, delivered March 14, 1984). Cf. Lambrecht v. State, 681 S.W.2d 614 (Tex.Cr.App.1984).

Appellant, in his response to the State’s Petition for Discretionary Review, which the majority opinion does not even bother to address, correctly points out the following: “If it was in fact an error for the Court of Appeals to sustain respondent’s ground of error, it was incumbent upon the State to [at least] point out the error in its motion for rehearing. To allow the State to raise new matters not brought out in the original appeal or on rehearing would open up a panacea [sic] of problems by way of precedent. The parties could simply ignore the initial appeal and wait until the case came up on discretionary review to present issues which should have been settled in the lower courts.”

It appears to me, in light of the State’s above concession, that when the court of appeals wrote its opinion in this cause, it very well could have invoked and applied Rule 419, T.R.C.P., to this cause. That rule provides: “Any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.” Also see Art. 38.02, V.A.C.C.P.

Regardless of how the court of appeals decided this cause, I believe it is imperative for this Court to at least give the court of appeals the opportunity to state how it decided this cause before it hands down an opinion that, in my view, is a slap in the face to the court of appeals.

In the immortal words of my judicial brother Clinton, “To such a waste of time, resources, and effort of the criminal justice system I must dissent [to what the majority does in this cause].” Turner v. State, 662 S.W.2d 357 (Tex.Cr.App.1984) (Clinton, J., Dissenting Opinion).

      . The sole issue presented to the court below both on original submission and on the State’s Motion for Rehearing was whether the appellant had sufficiently - preserved the error for review. Neither party pointed the court to the appellant's judicial admission at the guilt-innocence phase of trial.

      . Even though the prosecuting attorney inadvertently got the cause numbers backwards when cross examining the appellant, we find that the appellant’s affirmative reply to the question whether he was "the same person finally convicted in each of those Cause Numbers” [37774 and 36820] was sufficient to show appellant was the same person previously convicted in each. See, Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974).

      .This phraseology was used by the court of appeals in the context of the necessity of objecting (to the failure to introduce this type of evidence) in order to preserve error. Compare Jackson v. State, 493 S.W.2d 158 (Tex.Cr.App.1973) (sustaining defendant’s objection to the lack of identification evidence sufficient to cure error) with Smith v. State, 489 S.W.2d 920 (Tex.Cr.App.1973) (overruling defendant’s objection to the lack of identification evidence constituted reversible error).

      . The supreme irony is that in the court of appeals the State urged that appellant had not properly preserved the error, but here it would have us reverse the court of appeals on a point the State failed to raise for consideration by the court of appeals. In accommodating the State the majority sets a dreadful precedent that bodes much ill for the constitutional declaration that the State shall have no right of appeal in criminal cases. Article V, § 26.

      . Judge Teague takes his stand on firmer ground that is somewhat supported by recent precedent. See Szilvasy v. State, 678 S.W.2d 77 (Tex.Cr.App.1984). There, without expressing any opinion as to ultimate disposition of ground of error, this Court vacated judgment of court of appeals and remanded cause for reconsideration because court erred in concluding that evidence was sufficient to corroborate testimony of an accomplice by considering testimony not adduced before jury.


author: PER CURIAM. CLINTON, Judge.

text:
    William Andrew MASTERS, II, Appellant, v. The STATE of Texas, Appellee.
    No. 773-83.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 20, 1985.

      William Andrew Masters, II pro se.
    Margaret Moore, County Atty. and Claire Dawson-Brown, Asst. County Atty., Austin, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

Appellant was convicted, upon a plea of nolo contendere, of unlawfully carrying a weapon. V.T.C.A., Penal Code, Sec. 46.02. The court assessed punishment at a fine of one dollar.

The judgment of conviction was affirmed by the court of appeals. 653 S.W.2d 944 (Tex.App. 3 Dist.1983). We granted discretionary review to consider appellant’s contentions that Sec. 46.02 is violative of Art. 1, Sec. 23 of the Texas Constitution and of the Second Amendment to the Constitution of the United States of America.

We rejected the first of these contentions in Roy v. State, 552 S.W.2d 827 (Tex.Cr.App.2977), citing Collins v. State, 501 S.W.2d 876 (Tex.Cr.App.1973) and Morrison v. State, 339 S.W.2d 529 (Tex.Cr.App.1960).

Art. 1, Sec. 23 of the Texas Constitution provides that “the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.” This power was held in Roy, supra, and its progenitors to authorize regulatory statutes such as Sec. 46.02 and its predecessors, and we continue to so hold.

As to the contention that the Second Amendment to the Constitution of the United States prohibits such state regulation of weaponry as is at issue here, that contention has consistently been rejected since U.S. v. Cruikshank, 2 Otto 542, 92 U.S. 542, 553, 23 L.Ed. 588 (1875). The Second Amendment simply does not apply to the states or their subdivisions. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir.1983), aff'd 532 F.Supp. 1169, cert. den. — U.S. -, 104 S.Ct. 194, 78 L.Ed.2d 170. See also Presser v. Illinois, 116 U.S. 252, 265, 6 S.Ct. 580, 584, 29 L.Ed. 615 (1886); U.S. v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939); U.S. v. Oakes, 564 F.2d 384 (10th Cir.1977), cert. den. 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521; U.S. v. Williams, 446 F.2d 486 (5th Cir.1971); Vietnamese Fishermen’s Assoc. v. Knights, etc., 543 F.Supp. 198 (S.D.Tex.1982).

The judgment of the court of appeals is affirmed.

CLINTON, Judge.

The opinion of this Court correctly disposes of the cause under settled State and Federal Law, and therefore properly affirms the judgment of the Austin Court of Appeals. Masters v. State, 653 S.W.2d 944 (Tex.App.—Austin 1983). However, because of the earnestness with which a zealous appellant has presented his defense and appeal pro se and in light of a thoughtful concurring opinion by Justice Powers, I take this occasion to comment on some of the concerns underlying the subject matter of this cause.

The Constitution and laws of the United States are “the supreme Law of the Land” and “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article VI, Second Paragraph, Constitution of the United States of America. Indeed, every judge of a State court in Texas has solemnly sworn or affirmed to “preserve, protect, and defend the Constitution and laws of the United States,” as well as of this State. Article XVI, § 1, Constitution of The State of Texas.

Therefore, so long as the Supreme Court of the United States adheres to its longstanding construction of the Second Amendment, this Court and all other Texas courts are dutybound to follow it and apply that construction. Thus, as declared in United States v. Cruikshank, 2 Otto 542, 92 U.S. 542, 23 L.Ed. 588 (1875), its verity remains:

“ ‘[Bjearing arms for a lawful purpose^’ ... is not a right granted by the Constitution. The Second Amendment declares that it shall not be infringed; but this ... means no more than that it shall not be infringed by Congress. This is one of the amendments that has no effect than to restrict the powers of the National Government ...”

Id., 92 U.S. at 553. Still the Supreme Court did acknowledge that the Second Amendment “recognizes” the “rights” it mentions. Ibid. And in passing did so again in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1896). But see United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed.2d 1206 (1939).

Accordingly, for appellant and other citizens similarly situated or of like mind to persist in claiming a Federal constitutional grant of “the right ... to keep and bear Arms” seems utterly futile. However, not yet finally decided is the proposition that what they seek to protect is a preexisting “right” such that under the Ninth Amendment government may not “deny or disparage.” Justice Powers certainly advances that sort of proposition in his concurring opinion, 653 S.W.2d at 947, and though it was rejected in Quilici v. Village of Morton Grove, 695 F.2d 261 (CA 7 1982), certiorari was merely denied by the Supreme Court, - U.S. -, 104 S.Ct. 194, 78 L.Ed.2d 170 (1983).

On the other hand, on firm ground of experience recounted in the Texas Declaration of Independence, the citizen in Texas does have the right to keep and bear arms “in the lawful defense of himself or the State” subject, however, to the Legislature’s regulating by law “the wearing of arms, with a view to prevent crime.” Apparently because the Legislature has exercised its authority to enact laws regulating the carrying of weapons, appellant and others find our own constitutional guarantee unacceptable. Thus they must assert, as appellant does, that a State is precluded by the Second Amendment from imposing any regulation on keeping, bearing and wearing arms. But all the cases make abundantly clear that the Second Amendment does not have that preemptive effect. Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (1894), is just one, but it upheld a Texas regulatory statute against that very contention.

With those comments, I join the opinion and judgment of the Court.

      . Neither the Quilici appellants nor the Seventh Circuit found "any Supreme Court case holding that any specific right is protected by the ninth amendment,” so it dismissed their contention summarily, viz:

      "Appellants may believe the ninth amendment should recognize an unwritten, fundamental right to own or possess firearms; the fact remains that the Supreme Court has never embraced this theory.”
      Nor by denying certiorari did the Supreme Court find it untenable.

      . All emphasis is mine unless otherwise indicated.


text:
    Thomas Lloyd GREEN, Appellant, v. The STATE of Texas, Appellee.
    No. 351-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.
    Clyde F. DeWitt, III, Rita J. Ryan, Houston, for appellant.
    Charles D. Houston, Bellville, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

This appeal was taken from a conviction for escape. The appellant waived trial by jury and entered a guilty plea before the court to the primary offense and a plea of “not true” to the enhancement of punishment allegations of two prior felony convictions. The court assessed punishment at life imprisonment. See V.T.C.A. Penal Code, Sec. 12.42(d), prior to the 1983 amendment thereto.

On appeal a panel of the Houston [14th] Court of Appeals affirmed the conviction holding, inter alia, that there was no violation of Article 26.04(b), V.A.C.C.P., regarding the ten days’ preparation period for appointed counsel to defend an indigent defendant absent a written waiver. Green v. State, 681 S.W.2d 84 (Tex.App.—Houston [14th] 1984). One justice dissented. We granted appellant’s petition for discretionary review to determine the correctness of the above described holding.

We now find that 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.


author: CLINTON, Judge. TEAGUE, Judge,

text:
    Aubrey Eugene YOUNGER, Appellant, v. The STATE of Texas, Appellee.
    No. 550-84.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.

      Richard Alan Anderson, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., Anne B. Weth-erholt, Lynn Hastings and William G. Edie, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty. and Alfred Walker, First Asst. State’s Atty., Austin, for the State.
   OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The Dallas Court of Appeals held that appellant was denied due process in a probation revocation hearing because “the record does not reflect that appellant ever received written notice of the claimed violations.” Given the straightforward nature of the only question presented, we granted review to examine the matter and decide whether the court of appeals correctly reversed the judgment of conviction on the basis stated by it.

The problem here is simply that one cannot find in the record any paper showing that appellant received or was served with the motion to revoke probation. To be technical about it, a failure of that kind of showing in an appellate record is not a denial of due process. It is no more than a negative suggestion that the motion was not served or received.

We have recently dealt with that same problem in Herndon v. State 679 S.W.2d 520 (Tex.Cr.App.1984). In Herndon the complaint was twofold: he had no notice that a motion to revoke had been filed and that it was being heard along with the trial for the same offense giving rise to a ground to revoke. Herndon, supra, at 522-523.

Unlike Herndon, all material proceedings occurred after September 1, 1981. However, like Herndon, there were several procedural opportunities available to appellant to correct the deficiency he now claims denied him due process, “yet appellant made no effort whatsoever to demonstrate any denial of due process ... [and] we do not find such a denial on our own.” Herndon, 679 S.W.2d at 523.

Following Herndon’s lead, we emphasize that a claim such as this one is not likely to be considered on appeal when available post trial procedures have not been utilized to “make the record speak the truth” about that which is merely suggested.

The judgment of the Dallas Court of Appeals is reversed and that of the trial court is affirmed.

TEAGUE, Judge,

concurring.

The record of this cause reflects that the Dallas Court of Appeals set aside the trial court’s order revoking the probation of Aubrey Eugene Younger, appellant, after it found that the record on appeal did not affirmatively reflect that appellant was ever served with a copy of the State’s written motion to revoke his probation. See Younger v. State, (Tex.App.—Dallas, No. 05-83-00374-CR, March 19, 1984). Because I believe that the majority of this Court correctly reverses the court of appeals, but gives the wrong reasons, I only concur in the result it reaches.

Although I find that the majority of this Court reaches the right result, that the court of appeals erred in holding that merely because the record on appeal does not affirmatively reflect that appellant ever received written notice of the State’s motion to revoke, I am unable to agree that what is before this Court is “the same problem” that was before this Court in Herndon v. State, 679 S.W.2d 520 (Tex.Cr.App.1984). The “problem” that was present before this Court in Herndon, supra, involved a situation where the record did not affirmatively reflect that the probationer saw a copy of the State’s written motion to revoke prior to the trial that was held on the primary offense, which offense was the basis for the subsequent order of revocation. Because the defendant Herndon was unable to establish how he had been deprived of a defense, or had failed to establish how he had been injured by lack of notice, if any, he could not complain on appeal. In this instance, it is true that the record on appeal does not affirmatively reflect that appellant was ever served with a copy of the State’s written motion to revoke prior to the hearing on the State’s motion. The record also does not affirmatively reflect whether or not appellant or his attorneys ever informally received a copy of the State’s written motion to revoke. Of course, if either of appellant’s attorneys formally or informally received a copy of the State’s motion, such could be imputed to appellant. See Wray v. State, 89 Tex.Cr.App. 632, 232 S.W. 808 (Tex.Cr.App.1921). Notwithstanding the fact that the record should have affirmatively reflected that appellant did receive a copy of the State’s written motion prior to the hearing, the fact that it does not so reflect does not mean that the defendant did not either formally or informally receive a copy of such motion. I am unable to agree with the Court of Appeals that simply because the record on appeal did not reflect that appellant was served with a copy of the State’s written motion to revoke his probation, that this, standing alone, is sufficient to set aside an order revoking the defendant’s probation.

In this instance, the record on appeal affirmatively reflects that prior to when the trial on the unlawful possession of the sawed-off shot gun case commenced, but in the presence of the appellant and his attorneys, the trial court granted the State’s oral motion that for purposes of the State’s written motion to revoke appellant’s probation, it would take into consideration the evidence that would be adduced at the trial on the merits. Not without debate, this procedure has been approved by this Court. See Barrientez v. State, 500 S.W.2d 474 (Tex.Cr.App.1973). The record also reflects that neither appellant nor his two attorneys objected to such procedure. The record also reflects that appellant and his attorneys were fully aware that the trial court, in deciding whether to grant the State’s motion to revoke, would consider the evidence adduced during the trial on the merits involving the sawed-off shotgun when it decided whether or not to grant the State’s motion to revoke.

The record reflects that after the jury retired to deliberate to decide whether the State had proved beyond a reasonable doubt the allegations of the indictment that appellant had unlawfully possessed a sawed off shotgun, the trial court then took up the State’s motion to revoke appellant’s probation. One of the prosecuting attorneys read aloud to appellant the State’s motion, after which appellant entered a plea of true to the allegation in the motion to revoke that he had violated the condition of his probation that he pursue vocational training. The record reflects that the trial court more than adequately admonished appellant regarding his plea of true. Appellant pled “not true” to the gun charge and the other alleged violation. The trial court, as did the jury, found beyond a reasonable doubt that appellant had unlawfully possessed the sawed-off shotgun. The trial court, however, found that appellant had not violated the condition of probation that he maintain suitable employment.

In this instance, but as previously noted, neither appellant nor his attorneys ever objected to the procedures that were invoked in this cause, and the record clearly reflects that it was not until after this cause was placed on appeal that appellant first asserted that because the record on appeal did not affirmatively reflect this fact, that this nullified the trial court’s order of revocation. Appellant has never asserted he was harmed by not receiving a copy of the State’s motion to revoke prior to the hearing on the motion to revoke, assuming that he did not receive such a copy, either formally or informally. As to the gun case, the record clearly reflects that the appellant’s two attorneys were extremely well prepared and defended appellant in a competent manner. They were more than effective counsel. In light of their representation on the gun case, it is almost unbelievable or inconceivable that neither attorney would not have perused the State’s written motion to revoke prior to the trial on the merits of the gun case or prior to the hearing that was thereafter conducted on the State’s motion to revoke appellant’s probation.

Contrary to Herndon, supra, in this instance, the record reflects that prior to the hearing on the State’s motion to revoke, the State’s motion to revoke was read aloud to appellant by one of the prosecuting attorneys. Neither appellant nor his attorneys ever complained or objected about not receiving any written notice, if in fact they did not previously, formally or informally, receive a copy of the State’s written motion to revoke. At no time did either complain about receiving notice in the manner in which they did. No continuance was sought. Thus, we are not confronted with a situation where the record does not reflect that the accused was not given any notice, either written or oral, of the reasons why the State sought an order from the trial court revoking his probation.

I pause to also emphasize that at no time did either appellant or his attorneys assert that they were unprepared for the hearing on the State’s motion to revoke. Nor does appellant complain on appeal that he was deprived of any defense which he might have interposed had he been served with a copy of the written motion to revoke prior to the hearing, assuming that neither he nor his attorneys did not receive a copy of the State’s written motion prior to the hearing.

I find that both appellant and his attorneys were given sufficiently fair notice of what the State intended to prove against appellant in order that the trial court could revoke his probation, and that appellant’s rights were in all things adequately protected. Cf. Garner v. State, 545 S.W.2d 178 (Tex.Cr.App.1977); Kuenstler v. State, 486 S.W.2d 367 (Tex.Cr.App.1972); Jans son v. State, 473 S.W.2d 40 (Tex.Cr.App.1971); Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970).

Notwithstanding what I have stated, I do not mean to depart from what this Court stated in Campbell v. State, supra, or the principles of law stated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); or what this Court has stated in, for example, Whisenant v. State, 557 S.W.2d 102 (Tex.Cr.App.1977), Wester v. State, 542 S.W.2d 403 (Tex.Cr.App.1976), and Caddell v. State, 605 S.W.2d 275 (Tex.Cr.App.1980), regarding the rudiments of due process to which a parolee or a probationer is entitled to receive under our law, which includes, in a revocation of probation proceeding, when demanded, personally receiving a copy of the written notice of the claimed violations. In this instance, there is no question but that the record should have reflected that appellant, either formally or informally, personally or through counsel, received a copy of the State’s written motion to revoke. Notwithstanding this omission in the record, but in light of the facts and circumstances of this case, I am compelled to find that appellant received adequate and sufficient notice of the State’s allegations of why it was going to seek an order revoking appellant’s probation. Appellant has never contended or shown, and the record does not reflect, that he was in any way injured by not receiving a copy of the State’s written motion to revoke his probation, assuming that this did not occur.

In this instance, if appellant did not receive, either personally or through counsel, prior to the hearing on the State’s written motion to revoke, a copy of the State’s written motion to revoke, such error of omission was harmless to appellant.

Thus, for the above and foregoing reasons, I concur in the result the majority reaches, that the Court of Appeals erred by holding that simply because the record on appeal did not affirmatively reflect that appellant had received a copy of the State’s written motion to revoke, that this, standing alone, was sufficient to require a reversal of the trial court’s order of revocation.

      . Emphasis is in original opinion of the court in Younger v. State, (Tex.App.—Dallas, No. 05-83-00374-CR, delivered March 19, 1984). All other emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . In the instant cause, however, appellant was provided notice of the latter procedure when at the outset of trial for possessing a prohibited weapon the prosecuting attorney, indicating to the court the file before it, requested the trial judge "to consider the State’s Motion to Revoke filed in his previous case number ... [and] to consider the evidence during this trial in considering the State’s Motion to Revoke in that case.” The judge responded, “In Cause F-81-2911-GH, State versus Aubrey Eugene Younger, the Court will do that." Whereupon further proceedings were recessed over the noon hour.
      Moreover, thereafter when the motion to revoke was read to appellant, although the £rial court ordered pleas of not true to be entered with respect to two grounds, counsel for appellant entered a plea of true to violation of the remaining condition.