author: JACK SMITH, Justice.

text:
    M.R. TANNER, Appellant, v. Herbert L. AXELRAD, et al., Appellees.
    No. 01-84-0440-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 20, 1984.
    Rehearing Denied Nov. 21, 1984.

      W. Lawrence Gray, Houston, for appellant.
    Richard H. Callison, Parks & Moss, Houston, for appellees.
    Before EVANS, C.J., and DUGGAN and JACK SMITH, JJ.
   OPINION

JACK SMITH, Justice.

This appeal arose from a denial of a temporary injunction against a writ of restitution based on a forcible entry and de-tainer action brought by Herbert L. Axel-rad against M.R. Tanner. We affirm.

Axelrad filed suit for forcible entry and detainer in Harris County Precinct One Justice Court. Tanner responded by filing a motion to dismiss, complaining that the justice of the peace for precinct one did not have jurisdiction in the case, because the real property sought to be repossessed was located outside the geographical boundaries of that precinct. In response the court transferred the cause to Harris County Precinct Five Justice Court. After the transfer, an amended petition was filed by Axelrad and service obtained. Tanner then filed a plea in abatement in the precinct five proceeding, alleging that the transfer was void, because the action must be commenced in the precinct where the property is situated and there is no statutory authority to permit a transfer. This motion was denied and, after a hearing, the court granted forcible entry and detainer relief.

Tanner then appealed to County Court At Law No. 2 in Harris County, alleging the judgment was void. She claimed that because precinct five justice court lacked jurisdiction, the county court did not have the authority to hear the appeal or to issue the writ of restitution. The motion was denied, and after a hearing on the merits of the case, Axelrad again prevailed and the county court authorized the issuance of a writ of restitution.

Tanner then filed the present cause of action with the district court requesting a temporary restraining order and a temporary and permanent injunction against the county court’s issuance of the writ of restitution. She alleged that the justice court judgment was void for want of jurisdiction; hence, the county court judgment was also void. The district court denied the relief requested and Tanner appealed to this court.

This court issued a writ of injunction staying execution of the writ of restitution based on our authority to issue such writs as may be necessary to protect our jurisdiction. Tex.Rev.Civ.Stat.Ann. art. 1823 (Vernon Supp.1984). A writ of injunction is an appropriate remedy to enjoin execution of a writ of restitution pending disposition of an appeal from the trial court’s denial of the writ of injunction. Madison v. Martinez, 42 S.W.2d 84 (Tex.Civ.App.—Dallas 1931, writ ref’d).

Again on appeal, Tanner argues that the judgment on which the writ of restitution was based was void for want of jurisdiction of the justice court and the county court.

Jurisdiction of forcible entry and detain-er suits is found in Tex.Rev.Civ.Stat.Ann. art. 2390, sec. 1 (Vernon 1971), which provides: “Cases of forcible entry and detain-er must be brought in the precinct where the premises, or a part thereof, are situated.” Similarly article 3973, concerning where an action lies for forcible entry and detainer, provides: “Any justice of the peace of the precinct where the property is situated shall have jurisdiction of any case arising under this title.”

The property subject to the writ of restitution is located in precinct five, not precinct one where the suit was originally filed. We need not reach the question of the validity of the transfer from precinct one to precinct five because we hold that the precinct five justice court acquired jurisdiction when Axelrad filed an amended petition in that court following the transfer.

To commence a civil suit in a district or county court a plaintiff shall file a petition and such other supplemental documents as are necessary in the office of the clerk. Tex.R.Civ.P. 22, 78. These rules apply to justice courts. Tex.R.Civ.P. 523. In Brown v. Prairie View University, 630 S.W.2d 405 (Tex.App.—Houston [14th Dist.] 1982, writ ref d n.r.e.), the court held that even though a district court had no authority to transfer a cause of action, the court to which it was transferred did acquire jurisdiction when the plaintiff filed a petition in the second court entitled, “First Amended Original Petition.” Similarly, in this case, Axelrad filed a first amended original petition in justice court precinct five. That petition meets the requisites of a complaint as set out by rule 741. Had the precinct one justice court dismissed this cause of action, Axelrad could have commenced a new cause of action by filing an original petition in justice court precinct five. Even though the pleading was titled “First Original Amended Petition,” it can be considered according to its content rather than its title. Staley v. Western Steel Wire & Pipe Co., 355 S.W.2d 565 (Tex.Civ.App.—Dallas 1962, writ ref'd n.r.e.).

Tanner also contends that the failure to pay a filing fee defeats the jurisdiction of the precinct five justice court. Tex. Rev.Civ.Stat.Ann. art. 3935 (Vernon Supp. 1984) is a comprehensive statute describing various fees to be collected by justices of the peace. Section A of article 3935 prescribes a seven dollar fee to be collected from the plaintiff for each original cause of action. There is no indication in this statute that the payment of this fee or any other fee is a prerequisite to jurisdiction. See Advance Imports, Inc. v. Gibson Products Co. 533 S.W.2d 168 (Tex.Civ.App.—Dallas 1976, no writ). To support her contention that the filing fee is a prerequisite of jurisdiction attaching, Tanner cites Knight v. Cedena, 467 S.W.2d 692 (Tex.Civ.App.—San Antonio, writ ref'd n.r.e. per curiam 474 S.W.2d 687 (Tex.1971)). However, this case holds that a clerk may refuse to accept a case for filing if the fee is not paid. If the clerk accepts and files the case without payment of the fee, the duty to collect the fee continues. Consequently, we conclude that failure if any, to pay the fee does not affect the jurisdiction of the justice court.

We hold that when Axelrad filed the amended pleading in precinct five justice court and obtained service, he invoked the jurisdiction of that court as if he had filed a petition and commenced his lawsuit in that court in accordance with the rules of civil procedure.

Accordingly, precinct five justice court had jurisdiction of the case, and ultimately the county court at law had the authority to issue a writ of restitution. Tex.R.Civ.P. 749. The order of the trial court denying the temporary injunction is affirmed.


source: Caselaw Access Project

author: SHANNON, Justice.

license: Public Domain

text:
    In re the CONTESTS OF the CITY OF EAGLE PASS, et al., TO the ADJUDICATION of WATER RIGHTS IN the MIDDLE RIO GRANDE BASIN And CONTRIBUTING TEXAS TRIBUTARIES.
    No. 13917-A.
    Court of Appeals of Texas, Austin.
    Oct. 3, 1984.
    Rehearing Denied Dec. 5, 1984.

      Timothy L. Brown, Booth, Lloyd & Simmons, Austin, for appellant-claimant, City of Eagle Pass, Tex.
    Jim Mattox, Atty. Gen., R. Lambeth Townsend, Asst. Atty. Gen., Austin, for appellee, Texas Water Com’n.
    R. Glenn Jarvis, Ewers, Toothaker, Ewers, Abbott, Talbot, Hamilton & Jarvis, McAllen, for Cameron County Water Control & Improvement Dist., et al.
    Before SHANNON, EARL W. SMITH and GAMMAGE, JJ.
   SHANNON, Justice.

The City of Eagle Pass appeals from the judgment of the district court of Travis County which affirmed, in large part, the final determination by the Texas Water Rights Commission of claims of water rights in the Middle Rio Grande. This Court will affirm the judgment of the district court.

The “Middle Rio Grande” includes the Rio Grande and contributing Texas tributaries from Amistad Dam, in Val Verde County, downstream to Falcon Dam, in Starr County, and includes all or parts of Val Verde, Kinney, Maverick, Webb, Zapata, Edwards, Dimmit, and Jim Hogg Counties. Users of state water within this area are the Cities of Laredo, Eagle Pass, and Del Rio, several smaller towns and unincorporated communities; those using water for irrigation, industrial and mining purposes; and recreational developments around Falcon Reservoir.

The standard of review under the Water Rights Adjudication Act, Tex. Water Code Ann. § 5.301 et seq. (1972) is neither a substantial evidence review nor a de novo review. Instead, it is a review made independently of the Commission’s determination. In Re Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River Basin, 642 S.W. 438 (Tex.1982).

Eagle Pass holds three certified filings which authorize it to divert water from the Rio Grande. The validity of the certified filings is not disputed, but, instead, at contest is the extent to which two of the certified filings have been perfected. Eagle Pass insists that the district court erred in determining that the City was entitled to a lesser amount of water than the amount claimed by it.

The City’s certified filings are Nos. 454, 522 and 540. The City contended that its certified filings should be recognized as perfected to the following extent:

Certified Filing No. 454 - 571 acre-feet of water per annum
Certified Filing No. 522 - 6000 acre-feet of water per annum
Certified Filing No. 540 — 1680 acre-feet of water per annum
TOTAL 8251 acre-feet of water per annum

The district court, however, affirmed the Commission's recognition of Eagle Pass’ certified filings as having been perfected only in the following amounts:

Certified Filing No. 454 — 282 acre-feet of water per annum
Certified Filing No. 522 - 3600 acre-feet of water per annum
Certified Filing No. 540 - 1680 acre-feet of water per annum
TOTAL 5562 acre-feet of water per annum

Because the district court’s judgment affirmed the Commission’s order recognizing certified filing no. 540 to the full extent claimed, naturally Eagle Pass does not complain of that part of the judgment. The City does complain, however, of the judgment in fixing the amount of acre-feet of water per annum for certified filing nos. 454 and 522.

By three points of error Eagle Pass attacks that part of the judgment affirming the Commission’s determination that by certified filing no. 454 the City was entitled to divert 282 acre-feet of water per annum. In 1914 Eliza K. Dolch and others filed certified filing no. 454 for irrigation of 571 acres in Maverick County at a diversion rate of twenty cubic feet per second (cfs). Later in the same year, the parties filed their statement of work done indicating 376 acres were ready for irrigation and water was being diverted at fifteen cfs for 150 days.

More than forty years later Eagle Pass purchased a part of certified filing no. 454 from W.M. Stafford, the then holder of the filing. In such transaction Stafford conveyed five cfs to Eagle Pass out of his rights under certified filing no. 454. In 1961, upon written request by Stafford, the Commission’s predecessor agency cancelled certified filing no. 454 in its entirety because of voluntary abandonment. At the time of the cancellation proceeding, the agency had no knowledge that Stafford had conveyed any interest in the certified filing to Eagle Pass. The agency, being unaware of the City’s interest, did not notify the City of the cancellation proceedings and, as a result, the City had no knowledge of the order cancelling the certified filing. In 1963, when the agency learned that Eagle Pass held an interest in certified filing no. 454, the agency reinstated certified filing no. 454 to the extent of 282 acre-feet in the name of Eagle Pass.

Eagle Pass argues that the Commission’s predecessor impermissibly adjudicated its water rights under certified filing no. 454 in the 1963 order. Although the agency’s order, in determining the amount of acre-feet due Eagle Pass, was probably erroneous, Nueces Co. Water C. & I. Dist. v. Texas Water Rights Com’n., 481 S.W.2d 924 (Tex.Civ.App.1972, writ ref’d n.r.e.), the error in the order could have been corrected on appeal. Eagle Pass, however, did not appeal from the agency’s 1963 order determining its rights under certified filing no. 454 and, instead, permitted that order to become final.

The 1963 order has been long final and is now binding on Eagle Pass as fully and as completely as a judgment of a court of competent jurisdiction. As such, the agency order is not subject to collateral attack by the City. Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, 967 (1945); Combs v. State, 526 S.W.2d 648, 649 (Tex.Civ.App.1975, writ ref’d n.r.e.). The City’s points of error complaining of certified filing no. 454 are overruled.

By two points of error Eagle Pass asserts that the district court erred in failing to conclude as a matter of law that the City had the right under certified filing no. 522 to divert 6000 acre-feet of water per annum from the Rio Grande. The district court declared that it was impossible to determine from the evidence the precise amount of water used pursuant to certified filing no. 522. The district court observed, however, that the water use reports and other evidence indicated a use far less than 6000 acre-feet.

The Eagle Pass Irrigation Company filed certified filing no. 522 in 1914 and declared its intention to irrigate 1200 acres. It is undisputed that irrigation facilities were in place and that a quantity of land was being irrigated at the time of the 1914 filing. Eagle Pass insists that all of the evidence was that the full 1200 acres was being irrigated at five acre-feet per acre per an-num.

In support of such assertion, Eagle Pass relies upon the testimony of two life-time residents of Maverick County, Fred Wey-rich and Clarence G. Herring. They testified that a vegetable crop was raised on the tract in the winter and a grain or hay crop was grown in the summer. The summer crops required a greater amount of irrigation water. They testified that the frequency of irrigation depended upon the crop grown. Both witnesses indicated, however, that the composition of the soil varied over the 1200 acre tract, requiring more water near the river and less water away from the river. Herring testified that the length of the winter growing season varied, depending upon the type of vegetable grown.

In defense of the judgment, the Commission directs our attention to the water use reports showing that through 1919, the maximum amount of water used for irrigation under certified filing no. 522 was only 2045 acre-feet per annum, far below the 6000 feet presently claimed by the City. This fact is significant, suggests the Commission, since Weyrich testified that the full irrigation operation on the 1200 acre tract was underway by 1917 or 1918.

The district court considered the evidence respecting the perfection of the water right under the certified filing. It is, of course, trite learning that the weight accorded to and the probative force of evidence is a matter entirely for the trier of fact, in this instance, the trial court. Contrary to the arguments of Eagle Pass, all of the evidence did not support its claim of 6000 acre-feet of water per annum. Most important, the only documentary proof of use under certified filing 522 consisted of the water use reports filed early in the operation. By 1917 or 1918, the full irrigation program was in progress and the actual use reflected a figure about one third of the amount presently claimed by the City. Also of some significance is that the City’s witnesses admitted that the actual water use varied considerably depending upon the different soil types existent in the tract and upon the kind of vegetable crop grown. Finally, the court could consider that the City’s case was entirely dependent upon the recollections of aged witnesses of events long past.

In point of error three Eagle Pass claims that the district court erred in its adjudication of certified filing no. 522 by applying a “duty of water” standard to evaluate the water right. The district court did declare in its additional conclusions of law that “[t]he Commission’s determination that the three acre-foot duty should be used as a measure of perfection under C.F. 522 was reasonable in light of the evidence contained in the record.”

Eagle Pass refers the Court to the definition of duty of water found in a report of the Commission’s predecessor agency:

By duty of water is meant the service it [water] will or should perform. The question to be answered in an investigation of the duty of water in irrigation may be expressed two ways: How much water is required to economically irrigate a given acre of land; or what area of land will a given quantity of water economically irrigate? [,Second Report of the Board of Water Engineers, Covering the Two-Year Period from September 1, 1914, to August 31, 1916, Inclusive, Page 70.]

The Supreme Court of Nebraska has defined “duty of water” as

[s]uch a quantity of water necessary, when economically conducted and applied to land without unnecessary loss, as will result in the successful growing of crops. [Enterprise Irr. Dist. v. Willis, 135 Neb. 827, 284 N.W. 326, 329 (1939).]
Although the expression ‘Duty of Water’, in the opinions of some present-day scholarly hydrologists and technical engineers, may be outmoded, provincial, unscientific, and otherwise objectionable, nevertheless it is a term well understood and accepted by every rancher and farmer who has had practical experience in the artificial irrigation of land for the production of crops. It is that measure of water, which, by careful management and use, without wastage, is rear sonably required to be applied to any given tract of land for such period of time as may be adequate to produce therefrom a maximum amount of such crops as ordinarily are grown thereon. It is not a hard and fast unit of measurement, but is variable according to conditions. [Farmers Highline Canal & Reservoir Co. v. City of Golden, 129 Colo. 575, 272 P.2d 629, 634 (1954). (emphasis added) ]

The Court in City of Golden set out several factors which should be considered in determining the duty of water:

Land characteristics at the place of use are important; location; slope; depth of soil; whether it is loose or close; if underlain with gravel or impervious material; its composition and general adaptability for the growing of irrigated crops; all are taken into consideration. Climate is a feature not to be overlooked, as also are the kinds of crops ordinarily grown thereon and the proportion of the area devoted to each type of crop and the rotation thereof. In fact, every element that concerns or affects the consumption of water in the particular case before the court is to be considered.

Eagle Pass asserts that application of a duty of water sets the maximum that is predetermined by the agency to be beneficial without reference to evidence of past use of water. On the other hand, the Texas Water Code, according to the City, requires consideration of the actual amount of water used. The City suggests that application of the duty of water is proper for calculating the extent of a water right only when little or no evidence is readily available of past usage and that application of the duty of water in this ease was inappropriate because the “uncontroverted evidence establishes actual amounts used.”

Even under the City’s theory, application of the duty of water was not improper because, contrary to the City’s insistence, the evidence did not conclusively establish the past use of water under certified filing no. 522. In point of fact, the only documentary proof indicated an actual use far below that recalled by the City’s witnesses.

Moreover, this Court is convinced that the judgment may be affirmed without reference to, and reliance upon, the duty of water concept.

Texas Water Code § 11.025 (Supp.1984) provides:

A right to use state water under a permit or a certified filing (C.F.) is limited not only to the amount specifically appropriated but also to the amount which is being or can be beneficially used for the purposes specified in the appropriation, and all water not so used is considered not appropriated, (emphasis added)
Texas Water Code § 11.002(5) (Supp. 1984) defines “Beneficial Use” as the amount of water which is economically necessary for a purpose authorized by this chapter, when reasonable intelligence and reasonable diligence are used in applying the water to that purpose.

The owner of a certified filing has the right to all of the water appropriated which may be used in a beneficial and nonwasteful manner. In Re Adjudication of the Water Rights of the Upper Guadalupe Segment of the Guadalupe River Basin, supra; Texas Water Rights Commission v. Wright, 464 S.W.2d 642 (Tex.1971).

As this Court understands the quoted provisions of the Water Code and the Supreme Court opinions, the law requires a consideration of the amounts of water actually used and whether such quantity was economically necessary when used reasonably and diligently.

The City’s witnesses recalled water usage which, in the main, would justify the City’s claim of 6000 acre-feet per annum. The water use report, however, showed an actual use far below that claimed by the City. The trial court was completely justified in concluding from the conflicting evidence, alone, that 3600 acre-feet per annum more nearly reflected the extent of use than did 6000 acre-feet'per annum. It was unnecessary for the district court to refer to the Commission’s report and to rely upon an application of a duty of water in order to make that determination. The point of error is overruled.

Several down-stream water control and improvement districts have filed a brief in which they complain by cross-point of the judgment, contending that Eagle Pass obtained more acre-feet of water per an-num than was shown perfected under certified filing no. 522. The districts also claim that the district court erred by failing to apply the “two times 1965 actual municipal use” standard applied in prior adjudication. The cross-points are without merit and are overruled.

The judgment is affirmed.


author: DOYLE, Justice. LEVY, Justice,

text:
    Peter Alan WERNER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0069-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 4, 1984.
    Rehearing Denied Nov. 21, 1984.

      David Berg, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., William J. Delmore, III, Norma Davenport, Harris County Asst. Dist. Attys., Houston, for appellee.

      Before DOYLE, DUGGAN and LEVY, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from a conviction of murder. Punishment was assessed by a jury at ten years.

The record reflects that appellant shot and killed Tarbell Griffin Travis, after Travis allegedly damaged an automobile owned by appellant’s friend, Kenneth Net-terville.

While visiting at Netterville’s residence, appellant saw a car driven by the deceased collide head-on with Netterville’s parked vehicle. The deceased immediately backed off all the way to the intersection and sped away. Appellant and Netterville decided to give chase, and hold “whoever hit the car for the police.” According to appellant’s testimony, the following events next happened. Upon overtaking the deceased’s vehicle, appellant, carrying a pistol and a flashlight, approached the deceased and allegedly told him to “get up against the car.” When the deceased allegedly made a movement with his shoulders and stepped toward appellant, appellant shot the deceased in the chest from a distance of approximately eight feet. Appellant was charged by indictment with the offense of murder.

In the first of four grounds of error, the appellant contends that the trial court erroneously charged the jury on the use of deadly force to make an arrest.

The trial court included the following instruction in its charge to the jury.

A person other than a peace officer acting in a peace officer’s presence and at his direction is justified in using deadly force against another when and to the degree the person reasonably believes the deadly force is immediately necessary to make a lawful arrest, if the use of force would have been justified, and the defendant reasonably believes the offense against the public peace for which arrest is authorized included the use or attempted use of deadly force; or the defendant reasonably believes there is a substantial risk that the person to be arrested will cause death or serious bodily injury to another if the arrest is delayed.

The appellant argues that this instruction confused the jury, because there was no evidence that appellant used deadly force in his attempt to make the arrest or that he acted in the presence and at the direction of a police officer. The appellant also argues that the instruction was a comment on the weight of the evidence, because appellant did not claim that he used deadly force in order to make the arrest, merely that he threatened the victim with deadly force in order to effect an arrest.

When determining reversible error, the reviewing court normally looks to the part of the court’s charge that applies the law to the facts. Thomas v. State, 587 S.W.2d 707 (Tex.Crim.App.1979). Where a broad definition or abstract definition is used in the definitional portion of the charge, the court seldom finds reversible error or error which is calculated to injure the rights of appellant, or render the trial unfair. See Jones v. State, 576 S.W.2d 393 (Tex.Crim.App.1979); Pulgarin v. State, 635 S.W.2d 195 (Tex.App.—Houston [1st Dist.] 1982, no writ).

In contrast, if the charge authorizes the jury to convict upon a set of circumstances that could not constitute the offense charged, or are not supported by the evidence, the reviewing court will find reversible error. Dowden v. State, 537 S.W.2d 5, (Tex.Crim.App.1976); Venzor v. State, 283 S.W.2d 397 (Tex.Crim.App.1955); but cf. Toler v. State, 546 S.W.2d 290 (Tex.Crim.App.1977).

In the instant case, the application paragraph of the charge authorized the jury to convict only if they believed appellant was guilty of murder.

Therefore, if you believe from the evidence beyond a reasonable doubt that the Defendant, Peter Alan Werner, on or about April 2, 1982, in Harris County, Texas, intentionally or knowingly caused the death of Tarbell Griffin Travis by shooting him with a firearm, you will find the Defendant guilty of Murder. If you do not so believe, or have a reasonable doubt thereof, you will find the Defendant not guilty, (emphasis added)

The court’s charge also instructed the jury on the issue of self-defense, and authorized the jury to find either for or against appellant on this issue:

If you find from the evidence beyond a reasonable doubt that at the time and place in question the Defendant did not reasonably believe that he was in danger of death or serious bodily injury, or that a reasonable person in the Defendant’s situation at the time and place in question would have retreated before using deadly force against Tarbell Griffin Travis, or that the Defendant, under the circumstances, did not reasonably believe that the degree of force actually used by him was immediately necessary to protect himself against Tarbell Griffin Travis’s use or attempted use of unlawful deadly force, if any, as viewed from the Defendant’s standpoint at the time, then you must find against the Defendant on the issue of self-defense.
Now if you find or have a reasonable doubt thereof that Tarbell Griffin Travis committed a breach of the peace as those terms have been defined herein, in the presence or in the view of Peter Alan Werner; and if you further find or have a reasonable doubt thereof that Peter Alan Werner reasonably belived [sic] his purpose and the reasons for his arrest of Tarbell Griffin Travis were already known to him, or the purpose could not reasonably be made known to him; and if you further find from the evidence beyond a reasonable doubt that the Defendant, Peter Alan Werner, did kill the said Tarbell Griffin Travis by shooting him with a gun as alleged, but you further find from the evidence or have a reasonable doubt thereof that, viewed from the standpoint of the Defendant at the time, from the words, conduct, or both, of Tarbell Griffin Travis, it reasonably appeared to him that the Defendant’s life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury, or he reasonably believed he was under attack or attempted attack from the use of unlawful deadly force at the hands of Tarbell Griffin Travis, and that acting under such apprehension and reasonable belief that the use of deadly force on his part was immediately necessary to protect himself against Tarbell Griffin Travis’s actual or apparent use of unlawful deadly force, .he shot the said Tarbell Griffin Travis, and that a reasonable person in the Defendant’s situation would not have retreated, then you should acquit the Defendant on the grounds of self-defense; or if you have a reasonable doubt as to whether or not the Defendant was acting in self-defense on said occasion and under the circumstances, then you should give the Defendant the benefit of that doubt and say by your verdict not guilty. (emphasis added)

The record indicates that the part of the court’s charge that applies the law to the facts was properly restricted to cover the offense charged, and the defensive issues raised at trial. Throughout the trial, appellant’s defense to the murder charge was that he was justified in using a certain amount of force to effect an arrest Tex.Penal Code 9.51(b), but that he shot the deceased in self-defense. The application paragraphs of the charge clearly only reflect these two theories. Therefore, the inclusion of the definition of when “deadly force” may be used by a person attempting an arrest was harmless. Ground of error one is overruled.

In the second ground of error, appellant contends that the trial court erred in refusing to allow appellant to introduce evidence on the condition of appellant’s mind at the time of the offense.

During the guilt-innocence phase of the trial, the court sustained the state’s motion in limine, prohibiting appellant from introducing the testimony of Dr. Roden, a psychiatrist who had treated descendents of survivors of concentration camps and Officers Hartman and McErland, the officers who arrested appellant at the scene shooting. The officers were allowed to testify to all facts and circumstances surrounding the killing except the conversation between the appellant and them concerning the Holocaust. Appellant contends that these three witnesses’ testimony would tend to show the condition of the mind of the appellant at the time of the offense and that such testimony should have been permitted under the Texas Penal Code sec. 19.06 (Vernon 1974) which reads:

Section 19.06. Evidence
In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

The key word in the foregoing statute is “relevant.” Whether the evidence sought to be introduced is relevant, is a matter of law and must be determined by the trial court. Such a determination will not be disturbed on appeal unless an abuse of discretion is shown. The trial court’s decision to exclude, as irrelevant, the Holocaust testimony of the appellant and other witnesses as showing the appellant’s state of mind at the time of the offense, was based on testimony of Dr. Roden and Officers Hartman and McErlane as set out in the bill of exceptions. Dr. Roden would have testified that Peter deeply believed people should have the “strength to protect” themselves, and was determined not to be intimidated, as his relatives had been, in similarly dangerous situations. Dr. Roden would have also testified that these were appellant’s subconscious thoughts, even though appellant had told him that he was not thinking about the Holocaust at the time of the offense. He would have also testified that he is a board-certified psychiatrist and holds a medical degree and various other degrees. He would have further testified that his professional experience includes frequent lectures given to organizations and groups of children of Holocaust survivors. He has spoken with Houston groups of children of survivors of the Holocaust. He has conducted seminars in pre-Freudian and Freud, Freud’s general psychological theory, male chauvinism, survivor syndrome, and survival. Dr. Roden would also testify that he himself was incarcerated in German concentration camps from the years 1940 to 1945.

Dr. Roden would have testified that beginning in August of 1982, he began to see Peter Alan Werner as a patient. He has since seen him on eighteen or nineteen separate occasions, two or three occasions of which, maybe more, he also saw Peter with his father, mother, brother, and sister; that he has determined that Peter is, in fact, an example of an individual who shows some of the characteristics of an individual who has the syndrome associated with children of survivors of Nazi concentration camps; the way that it is manifested in Peter Werner might be exhibited as follows: Peter Werner grew up with the stories of concentration camps, not only from his dad but also from his grandmother who lived with him and he thinks still lives with them, or did live with them during Peter Alan Werner’s formative years and only recently has moved into a home for the aged; that during the period of time when he was growing up, Peter Wer-ner was told all the stories of what his father had seen in the Holocaust; and that most important to Peter was that his father and his grandmother told him of seeing people beaten to death who did not fight back; and of people who were taken to Theresienstad, a concentration camp where Peter’s father spent most of his time as an internee.

Dr. Roden would have testified that Peter has told him everything that happened at the scene that night. Dr. Roden would have testified that one does not need to be thinking of an event for another event in one’s life to have an effect, a subconscious effect on him. For instance, Peter testified that at the moment he pulled the trigger, he wasn’t thinking about anything except protecting himself. Peter feels that the greatest injustice in the history of man was perpetrated against his family and against his people. Peter has a great deal of feeling for the injustice perpetrated against others, and among them, the two or three million Americans who died at the hands of the Turks. Dr. Roden would have testified that those feelings were a result of Peter’s experiences, the experiences related to him by his father and his grandmother, and as a result of that, he had made the decision that if his life were threatened, he would act to protect himself.

Dr. Roden would have also testified that, in his professional opinion that is precisely what happened on the night or the early morning hours of April 2, 1982; that these things came to bear, brought themselves to bear on Peter, even though at the moment that it happened he wasn’t thinking about the Holocaust; and that it was his state of mind to defend himself because he comes from a family that did not.

Officers Hartman and MeErland would have testified that while appellant was handcuffed, appellant made statements which related to his empathy for Jews during World War II. Appellant also stated that his father had been a victim of the Holocaust, and that he would be ashamed if he could see appellant under arrest. According to Officer Hartman, appellant stated that his father had witnessed people going into gas chambers, without argument. Accordingly, appellant said that he had always planned to protect himself with guns.

In sustaining the state’s objection to the proffered testimony, the court stated:

THE COURT: In light of the Defendant’s testimony, the fact that there is no legal authority at all for such testimony coming before the jury, and because there are no two people alike, everybody is different, everybody comes from a different background, different things happen in their past, because there is no special breed of people that should be treated differently, all must come within the standard of the law that we have in the state of Texas, and although the Holocaust is’ an example of man’s inhumane acts towards their fellow man, the Court is going to sustain the objection at this time.

Appellant has raised the issue of self-defense. Where self-defense is raised, the issue before the jury is whether or not appellant had a reasonable belief that he is under unjustifiable attack as viewed from his standpoint at the time he acted. Texas Penal Code sec. 9.31(a); Kolliner v. State, 516 S.W.2d 671 (Tex.Crim.App.1974). The danger need not be real. The right of self-defense exists if it appears real to the accused. Jones v. State, 544 S.W.2d 139 (Tex.Crim.App.1976). The term “reasonable belief” is defined as a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. Texas Penal Code sec. 1.07(a)(31). Therefore, the question as to whether appellant believed he was in danger, real or apparent, viewed from his standpoint at the time he acted, is based on what an ordinary and prudent man would have believed under the same circumstances, not of what the descendent of a Holocaust survivor may have believed, as contended by appellant. Accordingly, Dr. Roden’s testimony as to the effect of being a descendent of a survivor of the Holocaust had upon appellant as to his reasonable belief of danger, was not relevant on the issue of self-defense.

We have been cited to no authority, nor can we find any which holds that all testimony, regardless of relevancy or materiality, is admissible under sec. 19.06 if it relates to facts and circumstances going to show the relationship between the accused and the deceased and the condition of the mind of the accused at the time of the offense. In every case cited by appellant, where testimony concerning his state of mind was admitted, the courts first found relevancy. In VanSickle v. State, 634 S.W.2d 946 (Tex.App.—Fort Worth 1982, P.D.R. ref d), the accused had been convicted of murder. He objected to the admission of testimony which showed that he had conspired to burn the victim’s store; had tried to hire someone to rob it and blow it up with dynamite if rebuilt; and had done several other acts directed toward putting the victim out of business. The accused argued that sec. 19.06 was unconstitutional because it allowed such extraneous offenses into evidence. The Fort Worth Court of Appeals affirmed with this observation:

Ground of Error Number Six asserts that Section 19.06 of the Penal Code is unconstitutional to the extent that it is interpreted as allowing proof of extraneous offense without any further showing of relevance and materiality. Section 19.06, by its very terms, limits itself to relevant facts and circumstances. We overrule the sixth ground of error. (Emphasis added)

Appellant relies heavily on the McClure case as authority for the admission of the testimony of Dr. Roden and the police officers. In McClure v. State, 575 S.W.2d 564 (Tex.Crim.App.1979), a murder case, a psychiatrist found that the defendant suffered from chronic depression and disassociated phenomena prior to shooting his wife. The court held that those findings were relevant and should have been admitted on the issue of whether the defendant was guilty of only voluntary manslaughter by virtue of the influence of sudden passion. No issue of voluntary manslaughter was raised in the case before us and hence McClure is inapposite.

The case of Wagner v. State, — S.W.2d - No. 61601 (Tex.Crim.App.1984) not yet reported, discusses the exclusion of psychiatric evidence in a murder trial where the defendant was charged with intentionally or knowingly causing the victim’s death. The court therein made the following observation:

One of appellant’s witnesses stated that appellant was not insane but that he might have problems with impulse control and that he was aware of what was happening but that his emotional contact was a bit displaced. In Cowles [v. State], supra, the court stated:
[w]hen an expert witness for the defense testifies that the accused was legally sane at the commission of the act, and that the offense is not one where specific intent is an element of the crime, an offer of testimony by that witness as to the mental aberration or the emotional problems of the accused should be rejected at the guilt-innocence stage of the trial.
510 S.W.2d [608] at 610 [Tex.Cr.App.1974].
The trial court correctly excluded the testimony. The ground of error is overruled.

In our case there is no question of appellant’s sanity, only the state of his mind as influenced by his thoughts of the Holocaust at the time of the offense. Our appellant was charged with “intentionally and knowingly” causing the death of the deceased. The appellant argues that the jury should consider his “special” state of mind as conditioned by his Holocaust knowledge, rather than consider his plea of self-defense in the light of the standard as set out in Kolliner and Jones, supra. The rejected testimony was not relevant to any issue raised by appellant’s defense. The second ground of error is overruled.

In the third ground of error, appellant contends that the trial court erroneously refused to grant a new trial despite evidence of jury misconduct in discussing the parole law.

In appellant’s motion for new trial, he includes an affidavit from juror, Gary Burrows. The relevant portions of Mr. Burrows’ affidavit are as follows:

During the deliberations on punishment the jury discussed parole. Our knowledge to that point related to parole was based on what we had learned prior to trial through the media. However, I really didn’t have any idea of how parole actually worked. Mr. Robert Palmer, another juror, however, did explain it to us. He told us his son had been convicted of a hot check charge and was sentenced to serve three (3) years in the penitentiary. I believe he said his son only served fourteen (14) months. I believe he also said that his son is still on parole and must visit the parole officer periodically and allow the parole officer to visit him in his home periodically. He must pay a parole fee.
I did not have any information about how parole actually worked until Mr. Palmer outlined the above of his experience with his son. I was reassured by his discussion that Peter Werner would spend a lesser time behind bars than the time we assessed (ten years) and that sometime during his incarceration would be available for parole, and then would be subjected to supervision similar to that of probation.

The appellant relies principally on Munroe v. State, 637 S.W.2d 475 (Tex.Crim.App.1982) and Grismore v. State, 641 S.W.2d 593, (Tex.Crim.App.1982). These cases have been overruled, along with all other cases applying art. 40.03(7) and (8) by the recently decided case of Sneed v. State, 670 S.W.2d 262 (Tex.Crim.App.1984). In Sneed, three jurors testified. One stated that she voted for five years at first, but after some discussion about a prison year being only seven months and her common knowledge about inmates being released on parole, she was influenced to vote for seven years, then eight, and finally ten years. The other juror also stated that he voted for five years on the first vote, after which someone “brought it up” that the time would probably be cut in half. He stated that he did not know the law; that none of the jurors knew, nor pretended to know the law. He surmised that it was common knowledge that prisoners were released before serving the full time assessed, but no one purported to know the exact time. He said the “discussion” was “probably” why he raised his vote finally to ten years. Still another juror testified that a “bunch of people” raised the parole question and the discussion lasted some 30 to 45 minutes. She said no one professed to know the law, although she knew inmates were released on parole. She stated that comments on parole caused her to change her mind.

The Sneed court ruled that the foregoing discussions concerning parole law did not constitute jury misconduct, and set forth the following five-prong test:

To show that a jury’s discussion of the parole law constitutes reversible error, it must be shown that there was
“(1) a misstatement of the law
“(2) asserted as a fact
“(3) by one professing to know the law
“(4) which is relied upon by other jurors
“(5) who for that reason changed their vote to a harsher punishment.”
Such test shall apply to cases under either sections 7 or 8 of Article 43.03, supra. All cases to the contrary are now overruled.

Applying this five-prong test to the facts in the case at bar, Burrows’ affidavit shows that not one of the five-prongs of the test were met. The testimony offered in our case fails to show that the “other jurors” relied upon any misstatement of the law asserted as a fact by one professing to know the law which caused them to vote for a harsher punishment. Appellant’s third ground of error is overruled.

The appellant contends in his fourth ground of error that the trial court erred in refusing to order a mistrial after the prosecutor discussed the law on early termination of probation.

During the punishment phase of trial, the prosecutor asked the following questions, while cross-examining one of the defense’s witnesses:

Questions By Mr. Hansen:
Q. Did you know he could be terminated early?
A. I don’t understand what you told me.
Q. If the jury put him on ten years’ probation, do you know he could be let go in three years?
Mr. Berg: Objection, Your Honor. May we approach the bench?

The court sustained appellant’s objection, and instructed the jury to disregard the question. However, the court denied the appellant’s motion for mistrial.

Appellant argues that the prosecutor’s discussion of early termination of probation was so prejudicial and harmful that a mistrial should have been granted.

It is well established that a discussion of parole eligibility during jury argument or witness examination generally constitutes reversible error. Clanton v. State, 528 S.W.2d 250 (Tex.Crim.App.1975); Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App.1973), but cf. McCarter v. State, 527 S.W.2d 296 (Tex.Crim.App.1975).

However, not every discussion of probation will result in reversible error where the court sustains an objection and instructs the jury to disregard. In the cases cited by appellant, only one, Alejandro, was reversed due to improper argument. In Alejandro, the court found that the state’s discussion of the number of probationers per probation officers in the county, was clearly outside the record, and reversed the conviction. However, in Alejandro, the trial court had overruled defense counsel’s objections to such remarks. In two other cases cited by appellant, Starling v. State, 522 S.W.2d 505 (Tex.Crim.App.1975) and Wood v. State, 516 S.W.2d 667 (Tex.Crim.App.1974), the court did not reverse the convictions despite evidence that the prosecutor had questioned witnesses on their knowledge of the availability of probation officers.

In Starling, defendant failed to preserve error, and in Wood the error was cured by other testimony. In both cases the court found that the argument was improper because evidence outside the record was presented to the jury.

It is interesting to note that in McCarter the prosecutor asked appellant about his knowledge of the parole law. The court sustained a belated general objection and instructed the jury to disregard the question. The Court of Criminal Appeals held that the asking of the question, especially in view of the instruction, did not constitute reversible error. Appellant’s fourth ground of error is overruled.

The judgment of the trial court is affirmed.

LEVY, Justice,

dissenting.

I respectfully dissent because of a significantly different perception of Section 19.-06, Texas Penal Code (Vernon 1974), which constitutes the basis of appellant’s second ground of error.

Section 19.06 provides as follows:
In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

As I read it, 19.06 directs the admissibility of all relevant facts and circumstances relating to the killing and to the defendant’s state of mind at the time, whether offered by the State or by the defendant. During the first phase of the trial, to determine the guilt of the defendant, the trial court prohibited the defendant from introducing testimony of the two arresting officers who arrived at the scene of the killing very soon after the fact. The testimony of the officers directly related to the defendant’s emotional condition at the time of the killing, and accordingly was explicitly authorized by 19.06.

In addition, the excluded statement was res gestae of the arrest. Khoury v. State, 669 S.W.2d 731, 734 (Tex.Crim.App.1984) held that it was reversible error to exclude the defendant’s res gestae statement to police upon his arrest in a murder case, which explained his state of mind at the killing, relying on Tex.Code Crim.P.Ann. art. 38.22, sec. 5; Harryman v. State, 522 S.W.2d 512 (Tex.Crim.App.1975); Ramos v. State, 419 S.W.2d 359 (Tex.Crim.App.1967).

Even more glaring was the error in excluding testimony of the psychiatrist who had treated survivors of Nazi concentration camps and their descendants. Psychiatric testimony concerning the defendant’s mental condition at the time of the killing, especially enlightened by the experience of Dr. Roden in treating other such patients who similarly were such descendants, .would appear to me to be of considerable potential significance to the jury, and also clearly authorized by 19.06. Indeed, the exclusion of very similar psychiatric testimony was held to be reversible error under 19.06 in McClure v. State, 575 S.W.2d 564 (Tex.Crim.App.1979).

By virtue of its specific terms applicable to prosecutions for murder and voluntary manslaughter, general theories of relevancy and competency are superceded by Section 19.06. Self-defense, the most common justification asserted in such prosecutions, is always evaluated from the particular defendant’s perception at the time, not from the theoretical “reasonable and prudent man” acting with olympian objectivity. Kolliner v. State, 516 S.W.2d 671 (Tex.Crim.App.1974); Jones v. State, 544 S.W.2d 139 (Tex.Crim.App.1976). Jones declared (quite consistently with prior decisions) that under the law of self-defense, a person has a right to defend from apparent danger to the same extent as he would had the danger been real, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time. Kolliner v. State, supra.

Whether the trial court believed the proffered psychiatric testimony was strong, feeble, unimpeached, contradicted, sophistry, a desecration, or simply not entitled to belief, the jury under 19.06 was clearly entitled to consider it. Kolliner, supra; Jones, supra. The very purpose of 19.06’s sweeping language was to distinguish the particular “mind of the accused at the time of the offense” from the mind of the theoretical “reasonable and prudent man,” and permit the jury, as the trier of fact — not the court — to evaluate the killing in such light.

I would reverse and remand for a new trial.


author: DUGGAN, Justice.

text:
    CITY OF HOUSTON, Appellant, v. Madeline Marie ARNEY, Appellee.
    No. 01-83-00744-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1984.
    Rehearing Denied Nov. 21, 1984.

      F.J. Coleman, City Atty., William T. Fiddes, Jr., Asst. City Atty., Houston, for appellant.
    Robert L. Collins, Houston, for appellee.
    Before DUGGAN, JACK SMITH and BULLOCK, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from the entry of an interlocutory default judgment against the appellant, City of Houston, and from the trial court’s award of $502,500 in damages. The default judgment was entered after the trial court struck the City’s pleadings, pursuant to Rules 168(8), 170(c) and 215a(b), Tex.R.Civ.P. (Vernon Supp.1983), for failure to comply with the court’s order to answer interrogatories. After the entry of the default judgment, a hearing on damages was held before the trial court, although a jury fee had been paid by the City, at which time the court made its damage award. This appeal follows the overruling of the City’s motion for new trial.

The plaintiff filed suit on October 4, 1982, alleging that personnel at a free health clinic operated by the City of Houston Health Department failed to inform her that her pap smear had revealed a “precancerous” condition, and that as a result of this failure to notify she was forced to undergo a complete hysterectomy.

The plaintiff served interrogatories upon the City on November 11, 1982, to be answered on or before December 12, 1982. Answers were not filed, and plaintiff filed her motion to compel answers. The motion to compel was heard February 3, 1983, and on that date the court entered an order compelling the City to answer plaintiff’s interrogatories by March 3, 1983. On May 5, 1983, nine weeks after the due date, plaintiff filed her motion to strike pleadings. The City was notified of the hearing set for May 10, 1983, but did not appear. Plaintiff’s motion for sanctions was granted and the City’s pleadings were stricken.

The City had earlier mailed its answers to the interrogatories to the clerk’s office, and the answers were filemarked as being received at 9:26 a.m. on May 10, 1983, the day of the hearing on plaintiff’s motion to strike pleadings. The appellant admits that it was notified of this setting and that its attorney did not attend the motion hearing.

Appellant contends that the trial court abused its discretion in entering the interlocutory default judgment as a sanction for appellant’s failure to timely answer appel-lee’s interrogatories.

Under the then applicable Texas Rules of Civil Procedure 168(8), 170(c) and 215a(b), a trial judge was authorized to impose sanctions for abuse of the discovery process. Specifically, Rule 170(c) stated that such sanctions may consist of striking pleadings, dismissing the cause of action, or rendering a default judgment. The choice of the appropriate sanction is for the trial court rather than the appellate court, and as long as such sanctions are within the authority vested in the trial court, they will not be overturned unless they constitute a clear abuse of discretion. Illinois Employers Insurance Company of Wausau v. Lewis, 582 S.W.2d 242, 245 (Tex.Civ.App.—Beaumont, writ ref'd n.r.e. per curiam, 590 S.W.2d 119 (Tex.1979)). In deciding whether or not there was an abuse of discretion, the question is whether the trial court’s decision was arbitrary or unreasonable. Bottinelli v. Robinson, 594 S.W.2d 112, 117 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ).

The authorized sanctions are not intended to be arbitrary and exclusive, but flexible and plural, vesting in the trial court broad discretion to fashion a remedy which will secure compliance with its orders and deter future non-compliance. (Emphasis added).

Lewis, 582 S.W.2d at 244.

“[A]buse of the discovery rules has caused a trend in federal and state courts toward using sanctions to deter violations of the rules by other litigants.” Southern Pacific Transp. Co. v. Evans, 590 S.W.2d 515, 518 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.), cert. denied, 449 U.S. 994, 101 S.Ct. 531, 66 L.Ed.2d 291 (1980).

[T]he most severe in the spectrum of sanctions [dismissal or default] provided by the statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent. (Emphasis added).

Id. (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976)).

In addressing claims of judicial abuse of discretion in the choice of sanctions for discovery abuse, the reported decisions have uniformly examined the particular facts of each case.

A chronology of events in this case indicates the following:

1. October 4, 1982 — Plaintiffs Original Petition filed.
2. October 22, 1982 — Defendant’s Original Answer filed.
3. November 11, 1982 — Plaintiff's interrogatories served on defendant.
4. November 15, 1982 — Memo sent from City’s attorney to Investigators, Legal Department, requesting information about plaintiff’s claim for Answers to Plaintiff’s First Series of Interrogatories.
5. December 12, 1982 — due date for answers to plaintiff’s interrogatories.
6. January 18, 1983 — Memo from Sgt. V.H. Schultea to defendant City’s attorney, stating that the investigation of plaintiff’s claim was completed and returning file.
7. February 3, 1983 — Plaintiff’s Motion to Compel granted and City’s attorney ordered to answer interrogatories by March 3, 1983.
8. February 18, 1983 — Letter sent from City’s attorney to plaintiff’s attorney explaining delay in answering interrogatories.
9. February 18, 1983 — Memo to City’s investigators from City’s attorney requesting update on investigation in order to answer interrogatories.
10. May 5, 1983 — Plaintiff’s Motion to Strike Pleadings filed.
11. May 10, 1983 — Hearing on Plaintiff’s Motion to Strike Pleadings set for 8:30 a.m.; motion granted.
12. May 10, 1983, 9:26 a.m. — City’s answers to plaintiff's interrogatories filed.
13. May 13, 1983 — Order signed striking City’s pleadings and granting interlocutory default judgment.
14. June 27, 1983 — City’s Motion for New Trial overruled by trial court.
15. June 28, 1983 — Plaintiff’s hearing on damages held.
16. July 14, 1983 — Final judgment signed.

A party who seeks discovery under the rules of procedure is not obligated to invoke lesser initial sanctions before requesting the striking of pleadings. Lewis v. Illinois Employers Insurance Company of Wausau, 590 S.W.2d 119, 120 (Tex.1979). Even though the appellee here did seek the less severe remedy of a motion to compel, the appellant failed to respond. It is undisputed that at no time during the six-month period from the November, 1982 service of plaintiff’s interrogatories until the May, 1983 order striking the City’s answer did the City (1) request a hearing to object to the interrogatories; (2) allege that the interrogatories were not answered because of mistake, lack of information, lack of notice, or even neglect; or, (8) communicate with the court in any manner to explain its apparent indifference to the court’s order. Pearson Corp. v. Wichita Falls Boys Club Alumni Ass’n, Inc., 633 5.W.2d 684, 686 (Tex.App.—Fort Worth 1982, no writ); Evans at 519. However, as the record above shows, the City’s attorney did send a letter to plaintiff’s attorney explaining the delay in answering the interrogatories and stating that an investigation had been initiated to gather information in order to answer the interrogatories. The record also contains the affidavit of the City’s attorney, William T. Fiddes, Jr., attached to the City’s Motion for New Trial filed August 12, 1983. In this affidavit, Fiddes states that he spoke with the plaintiff’s attorney’s secretary on Friday, May 6, 1983, informed her that the answers to interrogatories were in the mail, and told her that unless he was informed otherwise there would be no need for a hearing on plaintiff’s motion for sanctions. Fiddes likewise states in the affidavit that he did not hear from plaintiff’s attorney or the secretary that day, and consequently did not appear at the hearing on sanctions. We also note that appellee’s motion to strike was granted on the same day appellant’s answers to interrogatories were filed, and that the order striking defendant’s pleadings was entered three days later, when the interlocutory default judgment was signed.

In Illinois Employers Insurance Company of Wausau v. Lewis, supra, the Beaumont Court of Appeals held that the trial court abused its discretion in striking the defendant’s pleadings when the answers to interrogatories were on file with the court at the time this sanction was imposed. 582 S.W.2d at 245. However, the facts in Lewis which gave rise to a finding of an abuse of discretion are clearly distinguishable from our case.

In Lewis, the answers to plaintiff’s interrogatories were due on August 4. Plaintiff filed its motion for sanctions on August 28, and the hearing on this motion was held September 1; however, the defendant filed its answers to interrogatories fifteen minutes before the hearing on sanctions began. The trial court granted the plaintiff’s motion for sanctions and struck the defendant’s pleadings, despite the fact that it had been brought to the court’s attention that the answers were on file. The entire period of time between the date that defendant’s answers were initially due and its pleadings were struck encompassed about four weeks.

In our case, by contrast, the time period between answer due date and the striking of the pleadings is a total of six months. In addition, during that six-month period the court’s order compelling the answers to the interrogatories was issued and ignored by the City and nothing was done to answer the interrogatories until the threat of a motion for sanctions was placed over the City’s head. Furthermore, there is nothing in the record to indicate that the trial judge was even aware that the answers to the interrogatories had been filed or would be filed on the day of the hearing on sanctions. Bass v. Duffey, 620 S.W.2d 847, 489 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). See also Alexander v. Barlow, 671 S.W.2d 531 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.); Reimer v. Ford Motor Credit Co., 635 S.W.2d 162 (Tex.App.—Houston [1st Dist.] 1982, no writ).

Under the facts presented, we do not find that the trial court’s action in striking appellant’s answer, a sanction available under the Texas Rules of Civil Procedure, constituted a clear abuse of discretion. We overrule appellant’s contention that the trial court erred in striking the answer.

In subpoint 5 of appellant’s first point of error, appellant contends that, despite the payment of a jury fee and repeated demands for a jury, the trial court refused to empanel a jury at the post-default hearing to determine appellee’s damages.

While it is uncontroverted that appellant paid a jury fee, appellant’s assertion that the court denied it a jury trial after repeated demands finds no support in the record. The record of the hearing on damages contains no evidence of an objection by the appellant that a jury was not empanelled to hear testimony. Compare Coleman v. Sadler, 608 S.W.2d 344, 346-47 (Tex.Civ.App.—Amarillo 1980, no writ) with Webb v. Webb, 602 S.W.2d 127, 129 (Tex.Civ.App.—Austin 1980, no writ). A litigant must take affirmative action to avoid a waiver of his right to jury trial. The deposit of the jury fee with the district clerk by itself does not constitute a demand for a jury. Walker v. Walker, 619 S.W.2d 196, 197-98 (Tex.Civ.App.—Tyler 1981, writ ref’d n.r.e.). Where, as here, appellant appears, enters upon a hearing before the court without objection, and calls upon the court to decide an issue of fact, he waives his right to a jury. After the court rules adversely to his position, appellant will not be heard to complain that he was entitled to have a jury decide the fact question rather than the court. Walker at 198, citing Hernandez v. Light Pub. Co., 245 S.W.2d 553, 554 (Tex.Civ.App.—San Antonio 1952, writ ref’d). Subpoint 5 of appellant’s first point of error is overruled.

Subpoints 9 and 10 of appellant’s first point of error contend that there was no evidence or insufficient evidence to support an award of $502,500 in damages and that such damage award was so contrary to the great weight and preponderance of the evidence as to shock the conscience.

The trial court heard testimony at the hearing on damages and a statement of facts has been filed with this court. Plaintiff’s Original Petition alleges that she was injured because of the negligent acts of the defendant and that such injury caused her to sustain damages. The testimony contained in the statement of facts is to the same effect. No findings of facts and conclusions of law were filed nor were any requested by appellant. Where no findings have been made, all questions of fact are presumed to have been in support of the trial court’s judgment, and the trial court’s judgment must be affirmed if it can be upheld on any legal theory with support in the evidence. Goodyear Tire & Rubber Co. v. Jefferson Const. Co., 565 S.W.2d 916 (Tex.1978). Subpoints 9 and 10 of appellant’s first point of error are overruled.

In subpoint 4 of appellant’s first point of error, appellant contends that it was error for the trial court to enter a final judgment because no “notice of entry of default” was given to appellant under Rule 239a, Tex.R.Civ.P.

The purpose of Rule 239a is to afford a defendant who has failed to answer a lawsuit the opportunity to be apprised of the default judgment rendered against him so that he can file a motion for new trial or an appeal. It is designed as an administrative convenience for the parties and the failure to file a certificate of last known address does not constitute reversible error. Grayson Fire Extinguisher Co., Inc. v. Jackson, 566 S.W.2d 321, 322 (Tex.Civ.App.—Dallas 1978, ref’d n.r.e). Subpoint 4 of appellant’s first point of error is overruled.

Subpoints 2, 3, 4, 7, 8, and 11 of appellant’s first point of error are not supported by the record. Furthermore, these sub-points are not briefed by appellant and we need not address them. Bottinelli, 594 S.W.2d at 119; Archer v. State, 548 S.W.2d 71, 75 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.). Subpoints 2, 3, 4, 7, 8, and 11 of appellant’s first point of error are overruled.

Because the issues raised by appellant’s points of error two and three are closely related, these points will be considered together.

Appellant’s second point of error contends that the trial court erred in entering a final judgment for an amount of damages five times greater than the maximum allowed by the Texas Tort Claims Act, art. 6252-19, sec. 3(b), Tex.Rev.Civ.Stat.Ann. (Vernon Supp.1984), for two alternate reasons. First, the City urges that because appellee’s cause of action was brought only by virtue of the provisions of the TTCA, appellant was not subject to the TTCA’s waiver provisions while engaged in a governmental function. Alternatively, the City argues, if appellant was subject to the waiver provisions of the TTCA, the provisions of the Medical Liability and Insurance Improvement Act, art. 4590i, Tex.Rev.Civ. Stat.Ann. (Vernon Supp.1984), do not function as an additional waiver of governmental immunity.

Appellant’s third point of error contends that the trial court erred in entering a final judgment against appellant because (1) the appellant is immune from liability in the lawsuit upon which the judgment is based; and, (2) Plaintiff’s Original Petition does not state a cause of action for which the substantive law provides relief.

Because this is equivalent to a “no answer” default judgment case, the judgment may stand only “if the plaintiff has alleged a claim upon which the substantive law will give relief.” Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979). A default judgment has the effect of admitting all matters properly alleged, except the amount of unliquidated damages. However, on appeal or writ of error it may be contended that no cause of action in law is alleged, and if this contention is sustained, the judgment will fall. Rector v. Metropolitan Life Insurance Co., 506 S.W.2d 696, 700 (Tex.Civ.App.—Houston [1st Dist.] 1974, writ ref’d n.r.e.); 4 McDonald Texas Civil Practice sec. 17.23.3 (1971).

Section 3 of the TTCA provides for waiver of governmental immunity in three general areas: (1) use of publicly owned automobiles; (2) premises defects; and, (3) injuries arising out of conditions or use of property. Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980). In plaintiff’s original petition, she alleges that she was injured through the negligent “keeping of files, records or other documentation and means of notification, a use or condition of tangible personal property” on the part of the City’s hospital. This allegation states a cause of action upon which the substantive law will give relief under the TTCA. The default judgment against the City as to liability had the effect of admitting that the plaintiff had a viable cause of action under the waiver provisions of the TTCA. The trial court’s judgment as to the liability of the City can stand. However, that portion of the trial court’s judgment which awards plaintiff damages in the amount of $502,-500 cannot.

Appellee contends that because a default judgment was entered, appellant was denied its defenses, including that of sovereign immunity, and thus its liability for damages is increased to $500,000 by virtue of the provisions of the MLA. This contention cannot be sustained.

A governmental unit is not liable for the torts of its officers or agents while performing a governmental function in the absence of a constitutional or statutory provision therefor. Duhart at 741. The law is equally well-settled in Texas that the operation and maintenance of a public hospital by a municipality is a governmental function. City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872, 877 (1937); Bryant v. Mission Municipal Hospital, 575 S.W.2d 136, 137 (Tex.Civ.App.—Corpus Christi 1978, no writ). A sovereign does not waive the $100,000 limit of liability imposed by the Texas Tort Claims Act by failure to plead and urge it. State Highway Department v. Pinner, 531 S.W.2d 851, 858 (Tex.Civ.App.—Beaumont 1975, no writ).

Prior to the enactment of the Texas Tort Claims Act, there was no liability for torts committed by a governmental unit. With its adoption, the 61st Legislature waived governmental immunity for certain types of causes of action and specifically limited the liability of any unit of local government to $100,000 per person and $300,000 for any single occurrence for bodily injury or death. Art. 6252-19, sec. 3(b) (Vernon Supp.1984).

It is undisputed that, by definition of the health care facilities covered, the MLA expressly includes municipal hospitals within its scope. However, this inclusion of municipal hospitals does not increase the limits of a municipal hospital’s liability to the amount otherwise available under the MLA. Even though the MLA was enacted later in time than the Texas Tort Claims Act, it does not supplant the latter’s provisions limiting a governmental unit’s liability in the performance of a governmental function. A well-settled principle of Texas jurisprudence holds that when the law makes a general provision for all cases and a special provision for a particular class of cases, the general must yield to the special insofar as the particular class is concerned. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879, 881 (1947). By passage of the Texas Tort Claims Act the Legislature did not intend to abolish the doctrine of sovereign immunity entirely, but deliberately retained it in some areas. Dobbins v. Texas Turnpike Authority, 496 S.W.2d 744, 748 (Tex.Civ.App.—Texarkana 1973, writ ref’d n.r. e.).

In order for the Legislature to waive sovereign immunity, it must do so by clear and unambiguous language. Duhart at 742. Waiver of sovereign immunity cannot be effected by implication, but must be expressly waived. Texas Prison Board v. Cabeen, 159 S.W.2d 523, 527 (Tex.Civ.App.—Beaumont 1942, writ ref’d). We find no express waiver of the limits of liability of the Texas Tort Claims Act in the provisions of the Medical Liability and Insurance Improvement Act.

Plaintiff has a cause of action upon which the substantive law can grant her relief only by virtue of the waiver of sovereign immunity provided by the Texas Tort Claims Act. Accordingly, she must accept the Act’s limits on liability along with its benefits. City of Austin v. Cooksey, 570 S.W.2d 386, 387 (Tex.1978).

The judgment of the trial court as to liability is affirmed; that part of the judgment awarding damages is reformed to delete $402,500 therefrom, bringing the damage award within the applicable limits of the Texas Tort Claims Act, art. 6252-19, sec. 3(b). As reformed, judgment in the amount of $100,000 is affirmed. City of Houston v. Le Blanc, 562 S.W.2d 20, 22 (Tex.Civ.App.—Waco 1978, writ ref’d n.r. e.).


text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Nathaniel John DAVIS, III, Appellee.
    No. 01-83-00841-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1984.

      Roderick Q. Lawrence, Houston, for appellant.
    Jimmy James, Houston, for appellee.
    Before DOYLE, LEVY and DUGGAN, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal by the Texas Department of Public Safety (the “DPS”) from a county court at law judgment finding that appellee is not a habitual violator of the traffic laws and refusing to suspend his Texas Operator’s License.

The City of Houston Municipal Court No. 5 made an affirmative finding that appellee was a habitual violator of the traffic laws of the State of Texas as defined in art. 6687b, sec. 22(b)(4), Tex.Rev.Civ.Stat.Ann. (Vernon 1975), ordered suspension of his Texas Operator’s License for a period of twelve months, and probated the suspension for that period. Appellee appealed this judgment to the County Civil Court at Law No. 4 of Harris County, Texas, and was granted a trial de novo pursuant to art. 6687b, sec. 22(c).

At trial, the DPS introduced into evidence a certified copy of the appellee’s driving record, as shown by the files of the Driver and Vehicle Records Division of the Texas Department of Public Safety. This record was certified by Vernon Cole, Manager, Driver Improvement and Control, Driver, and Vehicle Records Division of the Texas Department of Public Safety, and stated in pertinent part that “notices of conviction ... [had] been received and recorded” by the DPS for the following moving violations:

Date of offense 05-28-81 for SPEEDING WALKER CO convicted on 06-09-81 JP Court Prct 1 PI 0 Docket Number 0000007848
Date of offense 07-22-81 for SPEEDING BROOKSHIRE convicted on 08-26-81 Municipal Court, Docket Number 0000024484
Date of offense 08-12-81 for SPEEDING HOUSTON convicted on 10-30-81 Municipal Court number 7A, Docket Number 81259616
Date of offense 04-11-82 for SPEEDING WALKER CO. convicted on 11-10-82 JP Court Prct 1 PI 0 Docket Number 0000014071

As the basis for suspension of appellee’s license, the DPS relied in its pleadings and proof upon these four convictions. The DPS also introduced a form DL-18, “Notice of Final Conviction for Traffic Law Violation,” certified by Mary E. Gates, Justice of the Peace, Precinct 1, Walker County, as a true and correct abstract of judgment of conviction of appellee on November 10, 1982, Docket No. 14071, Walker County, Texas.

Both appellant and appellee offered, and the court received into evidence, copies of the pages from the docket book of the Walker County Justice of the Peace Court, Precinct One, for docket numbers 7843 and 14071. Appellee offered, and the trial court received into evidence, an.affidavit signed by Judge Gates which stated that the court’s official records of complaints and judgments show “that no competent evidence exists of convictions of Nathaniel John Davis, III.”

The DPS called as a witness Walter Co-oksey, the former Justice of the Peace of Precinct 1, Walker County, who testified that the two docket book pages, with the entries thereon, were “records of convictions” for the two offenses charged because the fine for each had been mailed in and a plea of nolo contendere entered. The appellee called as a witness Judge Gates, who testified that, in her opinion, there was no valid judgment on the docket sheets to support the judgment of guilty noted on the Form DL-18, Notice of Final Conviction, forwarded by the Justice of the Peace to the DPS.

We agree with appellant’s argument that Judge Gates’ statements that the docket sheet and its entries are “no competent evidence” of appellee’s convictions, and “that no competent evidence exists of convictions of [appellee]”, were her opinion statements and legal conclusions, and of no probative value. For the same reasons, former Judge Cooksey’s testimony as to the effect of the docket sheets and the entries upon them was also his opinion and a legal conclusion only, and equally lacking in probative value. We note from the statement of facts that the trial judge indicated that he was “not considering what she [Judge Gates] said” in assessing the legal consequences of the docket sheets.

At the conclusion of the de novo trial, the county court at law entered its judgment that appellee was not a habitual violator of the traffic laws. The DPS urges four points of error on appeal.

Appellant’s first point of error asserts that the trial court erred in failing to accept as prima facie evidence the notices of conviction filed with the DPS pursuant to art. 6701d, sec. 152, Tex.R.Civ.Stat.Ann. (Vernon 1977). The DPS’s theory was that it made a prima facie case by proof of four final convictions for moving traffic offenses within a one year period, and that the appellee failed in any manner to rebut the prima facie proof.

In determining the basis of the judgment, we are faced at the outset with a record that contains no findings of fact or conclusions of law. In such a posture, we must affirm the trial court’s judgment if it can be upheld on any legal theory supported by the evidence. Goodyear Tire & Rubber Co. v. Jefferson, 565 S.W.2d 916 (Tex.1978). Where no findings are made, all questions of fact are presumed to have been decided in support of the judgment. Lassiter v. Bliss, 559 S.W.2d 353 (Tex.1978).

Art. 6701d, sec. 152(a) requires every magistrate or judge of a court not of record to keep “a full record of every case in which a person is charged” with a violation of the traffic laws. Sec. 152(b) requires the magistrate or judge, within ten days after conviction for such an offense, to prepare an abstract of the record, certify it as being true and correct, and forward it to the DPS. The abstract is to be made on a form furnished by the DPS. Art. 6701d, sec. 152(c). Once such notices of conviction are certified and forwarded to the DPS, they become abstracts of judgment and are admissible as prima facie evidence of the matters stated therein under the express provisions of art. 3731(a), sec. 1, Tex.Rev. Civ.Stat.Ann. (Vernon Supp.1983) (now Tex.R.Evid. 901(b)(7)). Drake v. Texas Department of Public Safety, 393 S.W.2d 320 (Tex.Civ.App.—Houston [1st Dist.] 1965, writ ref’d n.r.e.).

When a person’s driving record shows that the driver was convicted of four or more moving violations of the traffic laws arising out of different transactions in a consecutive twelve-month period, the DPS may, after a proper hearing, obtain a suspension of the person’s operator’s license. Tex.Rev.Civ.Stat. Ann. art. 6687b, sec. 22(b)(4) (Vernon Supp.1984).

Even if the suspension is appealed, the DPS may rely on the duly certified abstracts of judgment to provide a prima facie presumption of conviction, which may not be ignored by the trial court unless the conviction was previously successfully challenged by direct attack or in a habeas corpus proceeding. Texas Department of Public Safety v. Casselman, 417 S.W.2d 146 (Tex.1967).

However, the record in the instant case does not contain copies of three of the four certified DL-18 Notice of Conviction forms for the moving traffic violations relied upon for suspension, and for which an admission predicate was laid by the DPS record custodian’s affidavit.

As evidence that the appellee has been convicted of four moving traffic violations within one year, the DPS relies for its prima facie case upon (1) the affidavit of the record custodian of the DPS, Vernon Cole, as to appellee’s driver’s record; (2) one certified DL-18 form reporting a conviction in Cause No. 14071; and, (3) copies of the docket sheets from the Docket Book of Justice Court, Precinct 1, Walker County, for Cause No. 14071 and 7843.

While the DPS record custodian’s affidavit states that appellee’s driver’s record on file with the DPS shows that notices of conviction for the listed moving violations have been received and recorded, the affidavit does not purport to be an abstract of the court records covering the cases in which the appellee was convicted, and cannot be presumed to reflect the terms of the judgments rendered in such cases. Texas Department of Public Safety v. Gentry, 386 S.W.2d 758, 760 (Tex.1965). Therefore, the evidence fails to establish the requisite four moving traffic violations on which the suspension of appellee’s license as a habitual violator can be based, and the trial judge was justified in rendering his judgment on this theory. Appellant’s first point of error is overruled.

In its second, third, and fourth points of error, the DPS urges that the court erred (1) in allowing the appellee to collaterally attack the judgments of conviction; (2) in finding that the two Walker County judgments of conviction were nonexistent; and, (3) in failing to apply the provisions of art. 27.14 of the Texas Code of Criminal Procedure. Because the record supports the judgment on the basis that the court found no initial proof of four final convictions within one year, and hence no prima facie case by the appellant DPS, we are unable to say that the trial court’s judgment was based on any of three argued bases. Appellant’s points of error 2, 3, and 4 are overruled.

The judgment is affirmed.


author: COHEN, Justice.

text:
    GULF INTERSTATE ENGINEERING COMPANY, Appellant, v. PECOS PIPELINE AND PRODUCING COMPANY, Appellee.
    No. 01-84-00275-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Oct. 18, 1984.
    Rehearing Denied Nov. 21, 1984.

      Richard H. Page, Vinson & Elkins, Jeff Crane, Vinson & Elkins, Houston, for appellant.
    Glenn A. Ballard, Jr., Bracewell & Patterson, Houston, for appellee.
    Before WARREN, LEVY and COHEN, JJ.
   OPINION

COHEN, Justice.

This is an accelerated appeal from the district court’s interlocutory order staying arbitration, pursuant to Tex.Rev.Civ.Stat. Ann. arts. 225, 238-2(A)(2) (Vernon 1973), and denying Gulf’s motion to stay litigation and compel arbitration, pursuant to a contractual arbitration provision. No findings of fact or conclusions of law were filed by the trial judge, despite Gulf’s request, and none are required under Tex.R.Civ.P. 385(b).

Pecos, the owner of a pipeline, contracted with Gulf to operate the pipeline and perform all necessary engineering services. The first contract between the parties was made in December, 1982, and contained no arbitration provision. The second contract, which is the subject of this appeal, was dated February 18, 1983, and contained an arbitration clause which provided that:

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall, if not settled by mutual agreement of the parties, be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Arbitration proceedings hereunder shall be conducted in Houston, Texas.

The contract provided that it should be governed by Texas law, and, on its first page, it stated, “THIS CONTRACT IS SUBJECT TO ARBITRATION UNDER THE TEXAS GENERAL ARBITRATION ACT’, as required by Tex.Rev.Civ.Stat. Ann. art. 224-1 (Vernon Supp.1984).

A dispute arose in 1983, and Pecos ceased making payments to Gulf. On November 21, 1983, Gulf sent a demand letter stating that if the claim was not paid within thirty (30) days and if a lawsuit and a judgment resulted, Pecos would be liable for attorney’s fees under Tex.Rev.Civ.Stat. Ann. art. 2226 (Vernon Supp.1984). On December 19, 1983, Pecos sent Gulf a notice of its intent to file an action under the Texas Deceptive Trade Practices Act. Gulf then requested arbitration. Pecos rejected arbitration and filed suit in February, 1984, alleging claims for breach of contract and deceptive trade practice.

Gulf then moved that the lawsuit be abated and that all proceedings in the district court be stayed until completion of arbitration. Pecos requested the opposite relief, namely, that the district court order all arbitration proceedings stayed until completion of litigation in the district court.

The court granted all relief sought by Pecos and denied all relief sought by Gulf. It stayed arbitration indefinitely.

The parties vigorously dispute whether this controversy is governed by federal or state law. We find, however, that the relevant provisions of both the federal and state law are very similar.

Article 224 of the Texas General Arbitration Act provides:

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. A court shall refuse to enforce an agreement or contract provision to submit a controversy to arbitration if the court finds it was unconscionable at the time the agreement or contract was made.

The Federal Arbitration Act, 9 U.S.C. section 2 provides: '

A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising of such contract or transaction, or the refusal to perform the whole or any part thereof, or any agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

The Texas court “shall proceed summarily” to determine the validity of the arbitration provision, and if the provision is valid, the court shall order arbitration; otherwise, the court may deny the application to compel arbitration and may instead stay arbitration upon a showing that there is no agreement to arbitrate. Article 225, supra. Courts are granted similar powers under the Federal Arbitration Act to stay litigation and compel arbitration when appropriate. 9 U.S.C. sections 3 and 4.

Under the Texas Act, it is a defense to the specific enforcement of an arbitration provision that it was unconscionable when made or that other grounds exist at law or in equity for the revocation of the contract. Article 224, supra. Under the Federal Act, it is a defense to specific enforcement of an arbitration provision that grounds exist in law or equity to revoke the contract, 9 U.S.C. section 2, and, in addition, an arbitration clause is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion. Prima Paint Corporation v. Flood & Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 1805-06, 18 L.Ed.2d 1270 (1967); Scherk v. Alberto-Culver Co., 417 U.S. 506, 519, fn. 14, 94 S.Ct. 2449, 2457, fn. 14, 41 L.Ed.2d 270 (1974).

Pecos claims that the arbitration provision was unenforceable because it was unconscionable, fraudulently induced, and waived. Therefore, Pecos concludes, the district court properly refused to compel arbitration and stayed arbitration pending litigation.

The parties agree that the standard of review in this case is that of “no evidence.” We have reviewed the record to determine if Pecos’ claims are supported by any evidence. When reviewing legal sufficiency of the evidence, we are guided by established principles. A “no evidence” point presents a question of law requiring the appellate court to consider only the evidence and inferences tending to support the finding under attack and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). When, as in the instant case, there are no findings of fact and conclusions of law, we must affirm the judgment if there is sufficient evidence to support it upon any legal theory asserted by the prevailing party, and we must resolve every issue raised by the evidence in support of the judgment. Lassiter v. Bliss, 559 S.W.2d 353, 358 (Tex.1977); Beef Cattle Co. v. Scott, 613 S.W.2d 318 (Tex.Civ.App.—Amarillo 1981, no writ); Levinson v. Slater, 565 S.W.2d 337 (Tex.Civ.App.—Corpus Christi 1978, no writ).

The record does contain some evidence that Gulf fraudulently induced Pecos to include the arbitration clause in the contract. Both contracts were drafted by Gulf; however, only the second contract contained an arbitration provision. The president of Pecos, Stephen Hacker, testified that he signed the contract without consulting his attorney after he was told by Gulf’s employee, Mr. Dempsey, that the contract had been approved by Pecos’ attorney. The record reflects the following testimony on direct examination by Mr. Hacker of Pecos:

Q: Did you discuss the arbitration provision in that contract with your attorney?
A: No. I did not.
Q: Did you discuss any provisions in the contract with your attorney?
A: No. I did not. Not that I — to the best of my recollection.
Q: Okay. Why not?
A: I was led to believe that you okayed this.
Q: Who led you to believe that?
A: The people at Gulf Interstate, precisely, Mr. Dempsey.
Q: Okay. Did you take any note of the arbitration provision whatsoever?
A: No. Didn’t mean anything to me.

On cross-examination, Mr. Hacker was questioned as follows:

Q: Mr. Hacker, was the contract, a copy of which is introduced here as Pecos Exhibit 2, reviewed by your counsel before it was executed?
A: I don’t think it was, sir.
Q: Well, do you think your counsel was never given an opportunity to see that contract?
A: My counsel says they never say this contract before I signed it.
Q: Who is your counsel?
A: Mr. Ballard.
Q: And he said he had never seen this contract?
A: That’s what he’s told me, sir.
Q: Did you ever have a copy of the contract?
MR. BALLARD: Your Honor, I’d have to object to all that because it’s going into the attorney/client privilege. Your Honor, I would move to strike that all from the record.
THE COURT: Sustained.
(Cross-examination continues)
Q: Did you have a copy of the contract before it was executed, Mr. Hacker?
A: Did I have a copy? Yes, I did.
Q: Did you take it down to Mr. Ballard and ask him to review it?
A: No, I did not.

John Dempsey, the vice-president of Gulf, later testified at the hearing; he did not, however, deny Hacker’s testimony that he had led Hacker to believe that Pecos’ attorney had “okayed” the contract.

Fraud occurs when a false representation of a material fact is made with intent to induce the listener to act upon it and the listener acts in reliance upon the misrepresentation and suffers injury as a consequence. Hicks v. Wright, 564 S.W.2d 785, 791 (Tex.Civ.App.—Tyler 1978, writ ref’d n.r.e.).

In reviewing Hacker’s testimony under the “no evidence” standard, we consider only the evidence and inferences from it which support the trial court’s finding; we disregard all evidence and inferences to the contrary. In this case, Mr. Dempsey testified, but never denied the misrepresentation, nor did any other witness, and, therefore, there is no evidence to the contrary. It is clear from Mr. Hacker’s testimony that the representation was made by Mr. Dempsey. Mr. Hacker’s testimony that he did not discuss any provisions of the contract with his attorney was admitted without objection and from it the court could have inferred that the attorney never “okayed” the contract. Mr. Hacker’s later testimony that he did not think the contract was reviewed by his counsel prior to execution and that his counsel said that they never saw the contract prior to execution gives rise to inferences that Mr. Hacker’s counsel had not approved the contract. This inference is supported by the fact that Gulf drafted both contracts and that the first did not contain an arbitration clause. The materiality of such a misrepresentation is obvious, and the trial judge could have reasonably inferred that Mr. Hacker relied upon this misrepresentation because he signed the contract shortly after it was made. Hacker’s testimony that the arbitration clause was not negotiated would be consistent with, and would therefore support, an inference that he agreed to its inclusion based on Dempsey’s assertion that Pecos’ own attorney had approved it.

The entire testimony on this subject occupies less than three pages of the statement of facts. This evidence, although slight, constitutes more than a scintilla and was uncontradicted. We conclude that the evidence and inferences therefrom support the trial court’s implied finding that the arbitration clause was fraudulently induced. All of the appellant’s grounds of error are overruled.

The judgment is affirmed.

      . Curiously, this important testimony supporting Pecos, i.e., that Dempsey’s statement was false, was brought out by Gulfs attorney, over an objection and motion to strike by Pecos’ attorney. The objection was sustained, but the court never ordered that any testimony be stricken from the record. Several questions on the same subject had been asked without objection immediately prior to the objection, and the record does not reflect how much of the prior testimony was included in the objection "to all that”. Also, Hacker had testified earlier without objection that he had never discussed any provisions in the contract with his attorney.