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

text:
    Allen Levi MONROE, Appellant, v. The STATE of Texas, Appellee.
    No. 132-83.
    Court of Criminal Appeals of Texas, En Banc.
    April 3, 1985.
    Michael P. Gibson, Michael D. McKinley, Dallas, for appellant.
    Henry Wade, Dist. Atty., R.K. Weaver, Martin Lenoir and Bill Booth, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

This is an appeal from a conviction for voluntary manslaughter, a lesser included offense of murder charged in the indictment. The jury assessed punishment at 20 years’ imprisonment and a fine of $10,-000.00.

On appeal the appellant inter alia raised the contentions that the trial court erred in overruling his amended motion for new trial because he had shown the jury received “other evidence” in violation of Article 40.-03(7), V.A.C.C.P., and had shown the jury engaged in “misconduct” in violation of Article 40.03(8), V.A.C.C.P.

On appeal the conviction was affirmed by the Dallas Court of Appeals in a panel opinion written by Justice Allen. See Monroe v. State, 644 S.W.2d 540 (Tex.App.—Dallas 1978).

The Court of Appeals held the trial judge did not abuse his discretion in overruling the new trial motion on ground the jury received “other evidence” concerning length of time the appellant would actually serve on any given sentence, in that once such expressions were stated, the jury foreman immediately admonished the jurors they were not to discuss that, and statements made were fairly accurate statements of the parole law. The Court of Appeals further held there was no abuse of discretion in denying the motion for new trial on ground of “misconduct” in discussing parole laws during deliberations in that no “discussion” of parole laws ensued, there was no showing of more than one vote on punishment, and mere mention of parole drew immediate admonition of jury foreman that it was not a proper consideration and would not be discussed. In so holding, the Court of Appeals distinguished Munroe v. State, 637 S.W.2d 475, 478 (Tex.Cr.App.1982), on the facts.

In his petition for discretionary review appellant contends the decision of the Court of Appeals is in conflict with Munroe and the determination that no “discussion” occurred during jury deliberations on the issue of punishment was unsupported by the record. We granted appellant’s petition for discretionary review to determine the correctness of the Court of Appeals’ opinion.

Justice Allen in his opinion for the Dallas Court of Appeals discussed the evidence developed at hearing on the motion for new trial as follows:

“... Three jurors testified at the hearing on the motion for new trial. The jury foreman, Noel Pittman, in his testimony estimated that during the jury deliberation on punishment the length of time appellant would have to serve in the Texas Department of Corrections on any sentence assessed was mentioned on two or three occasions. He testified that on each occasion he said to the jury that ‘the court had specifically proscribed such discussions and that we would not discuss that.’ A second juror, Allen Cros-land, testified that he recalled a couple of times during deliberation on punishment it was mentioned that the defendant would serve approximately one-third of the time assessed. Juror Crosland testified further that the jury foreman reminded the jury that they were not to talk about the length of time the defendant would serve for any sentence given but were to concern themselves with the specific number of years they were to assess as punishment. He testified that no juror mentioned any particular case with which he or she was familiar. He remembered the foreman’s admonishing the jury a ‘couple of times’ that they were not to consider the length of time a defendant would serve on any given sentence. He further testified that statements were made two or three times during the deliberations on punishment with regard to the length of time a defendant would have to serve on a given sentence.
“The third juror to testify was Sharon L. Tharp. She testified that statements were made two or three times during the deliberations on punishment with regard to the length of time a defendant would have to serve on a given sentence. She remembered a mention of the statements that ‘seven months equaled a year,’ and ‘if he is a good prisoner, he will be off in a third of his sentence.’ She testified that one juror mentioned a case where the defendant served less than the sentence given. She testified that the jury foreman instructed the individuals who made the statements that their statements were not within the realm of that which they were instructed to discuss in the jury room. She testified that the statements were not discussed. When asked if she relied on the statements as being accurate she first answered, ‘No.’ In answer to a similar question she answered, ‘Well, I don’t know.’ When the prosecutor persisted in propounding the same question in different ways, the witness testified that she did rely on the statements as being true and that the statements affected her verdict. The witness admitted that she possessed a general knowledge of the parole laws before appearing for jury service. The statement made which she claimed had affected her verdict was, ‘That he would serve only a third of the time assessed.’ She further testified that she knew that the jury was not supposed to consider the parole situation. She testified that she did consider the parole situation because somebody had to compromise. Juror Tharp told the trial judge that if the statements about parole had not been made she would have held out for a different verdict and would never have gone with the maximum sentence.
“Appellant contends that the statements made during jury deliberations concerning good time and early release required the trial court to grant a new trial upon it being shown that Juror Tharp relied on the statements. The evidence adduced at the hearing on the motion for new trial proved that parole was mentioned two or three times during jury deliberation at the penalty phase of the trial. Each time it was mentioned before the verdict was reached, the jury foreman admonished the jury that the court had instructed them that they were not to consider the length of time one would serve on any sentence imposed and that they were not going to discuss that subject. No juror professed to know the law. The proof shows that no discussion was held on the statements made. Based on this evidence we must determine whether the trial court abused its discretion in refusing to grant a new trial so as to require reversal of the cause by this court.”

Since the time of the decision in question, this Court has laid down a five-prong test to determine if a jury’s discussion of parole laws results in reversible error.

In Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984), this Court stated:

“After further consideration, we readopt the five-prong test gleaned from pre-Heredia cases.
“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 §§ 7 or 8 of Article 43.03, supra. All cases to the contrary are now overruled.” (Emphasis supplied.)

Applying this test to the facts of the instant case, it is clear that the trial judge did not abuse its discretion in overruling the motion.

The judgment of the Court of Appeals is affirmed.

CLINTON, Judge,

dissenting.

Before us on appellant’s petition for discretionary review is a conviction for voluntary manslaughter, affirmed by the Dallas Court of Appeals. See Monroe v. State, 644 S.W.2d 540 (Tex.App.—Dallas 1982).

On direct appeal, appellant contended the trial court had committed reversible error in overruling his amended motion for new trial because: (1) he demonstrated jurors received “other evidence” in violation of Article 40.03(7), V.A.C.C.P.; and, (2) he demonstrated jurors engaged in “misconduct” in violation of Article 40.03(8), V.A.C. C.P. Underlying both contentions was appellant’s evidence establishing that the effects of the law of parole had been mentioned during jury deliberations, and that at least one juror voted for an increased punishment as a result.

In rejecting appellant’s contention that the jury had received “other evidence,” the court of appeals concluded, inter alia, a statement “something like ... that seven months was equal to one year” is “consistent with common knowledge and is generally the practice followed by the administration of the Texas Department of Corrections. Therefore, it is not a misstatement of the common practice.” In concluding the above did not constitute a “misstatement of the law,” the court of appeals mentioned, but did not address, appellant’s argument that since there was an affirmative finding he used a deadly weapon in this case, the statement made in the jury room was clearly incorrect. See Article 42.12, Sec. 15(b), V.A.C.C.P. The court of appeals concluded its rejection of appellant’s first ground of error by declaring the testimony of Juror Tharp (that the mentioned effect of parole had influenced her ultimate agreement to the maximum sentence) could not be considered in determining prejudice because it constituted an “impermissible impeachment of the verdict.”

In overruling appellant’s complaint that “jury misconduct” had denied him a fair and impartial determination of punishment, the court of appeals held “there is no evidence that there was a discussion by the jury of the parole laws.”

Petitioning this Court for discretionary review, appellant contends: (1) the court of appeals’ decision is in direct conflict with Munroe v. State, 637 S.W.2d 475 (Tex.Cr.App.1982); and, (2) the determination below that no “discussion” occurred during the punishment deliberations is utterly unsupported by the record.

In rejecting appellant’s contentions, the majority relies on Sneed v. State, 670 S.W.2d 262 (Tex.Cr.App.1984). That case created a “five-prong standard” for reviewing claims such as this without intimating any rational basis whatever for those criteria. Instead, Sneed claimed its new test was a “re-adoption” of a test gleaned from cases prior to Heredia v. State, 528 S.W.2d 847 (Tex.Cr.App.1975); one need not be a legal scholar in order to see, upon a reading of Heredia, supra, that neither it nor any case cited by it, ever espoused the so called “five-prong test” now established by Sneed.

In view of the complete lack of precedent for, or evolutionary history of, the integrated “five-prong test” pronounced in Sneed, it seems to me the appropriate role of a discretionary review court is to explain to the bench and bar the reasoning underlying such an abrupt and radical departure from sound policies heretofore advanced, admittedly with some inconsistency, by this Court.

It is to this failure of the majority in Sneed as well as cases such as the instant one in which the rule in Sneed is invoked, that I strenuously object. I do agree that our analysis of parole discussion cases could be improved; I do not agree that the impossible burden contrived by the majority in Sneed can be justified in law or logic.

My own suggestions for refashioning the law and the reasons for them follow.

In Munroe, supra, it was unambiguously stated and held by a majority of the Court, that

“... any discussion by the jury of the parole laws is jury misconduct. However, that misconduct requires the granting of a new trial only when the defendant can show that he was denied a fair and impartial trial. That showing can be made by showing that even a single juror voted for a harsher punishment as a result of that misconduct.” [Emphasis original]

The author of Munroe, supra, was of the opinion that consideration of the effect of parole by the jury during punishment deliberations in express violation of the trial court’s instructions should be analyzed only as jury misconduct under the provisions of Article 40.03(8), supra, rather than as the receipt of other evidence under Article 40.03(7), supra. That sentiment, however, did not carry the day, and in Diaz v. State, 660 S.W.2d 93 (Tex.Cr.App.1983), a unanimous Court determined Article 40.-03(7), supra, is still a viable vehicle for complaint of parole law consideration by a jury.

In the instant case, the opinion of the court below does make some things clear. First, by ignoring the actual effect the law of parole had on the ultimate assessment of appellant’s punishment at the maximum term of confinement and focusing instead on the lack of an “extensive” round table discussion, the court of appeals has failed to appreciate the policy governing the law in this area and the reason interjection of parole law into jury deliberations is prohibited. This failure on the part of the court of appeals appears to be but one product of somewhat inconsistent pronouncements from this Court. For example, in Sanders v. State, 580 S.W.2d 349 (Tex.Cr.App.1978), the constitutional basis for the rule is well explicated: jurors have no business considering the operation of parole law because its exercise and application is exclusively in the province of the executive branch. But then, in other cases, the fact that a discussion centered around a “correct statement of the law” seems suddenly to make the jury’s consideration of parole law permissible despite the trial court’s specific admonition against it. The diametric opposition of these notions in terms of public policy is apparent. This paradox is unfortunately perpetuated by the Sneed majority.

Second, while our opinion in Munroe, supra, clearly synthesized prior decisions and the analytical process to be pursued when it is alleged the jury committed “misconduct” addressed by Article 40.03(8), supra, no affirmative standards had been set out for analyzing a claim that the jury received “other evidence” under Article 40.-03(7), supra. This void in our pronouncements had left the courts of appeals to devise their own criteria for what constitutes “other evidence;” here, a remarkably incorrect statement of fact (“that seven months was equal to a year”) was labeled a correct statement of law and utilized to conclude no “other evidence” was received by the jury. Undue emphasis on, as well as confusion between “fact” and “law,” may also have been fostered by prior decisions.

Third, it is manifest that the court below was exasperated by the lack of possible corrective action trial courts might take to avoid having parole law affect punishment verdicts in the future. Members of this court share that frustration. Generally, when appellate courts are constrained to reverse criminal convictions, it is due to some failure on the part of counsel or the trial court. Appellate opinions are ordinarily addressed to avoiding such failures in the future. But it seems that if there are divergent views among jurors regarding an appropriate punishment, inevitably the subject of parole is broached in order to facilitate a , compromise — and this is true no matter how carefully and sternly the trial court has instructed against that consideration. Thus, appellate judges are left with the feeling that their efforts in this area are nothing more than judicial wheelspin-ning, having no consistent corrective effect on the trial process whatever.

I.

PUBLIC POLICY

As was observed above, Sanders, supra, cannot be improved upon as a statement of the constitutional basis for prohibiting those participating in the criminal judicial process from basing punishment on an expectation that executive clemency powers will be exercised, or from attempting to delay the exercise of clemency powers or to avoid the possible granting of parole by increasing the punishment. I need not reiterate that explanation here.

In Munroe, supra, a majority of the Court observed:

“Whether [a jury’s] attempted interference [with powers constitutionally granted to the executive branch] is based upon correct or incorrect information, whether it is based upon an asserted fact or a guess, and whether anyone professed to know the law or simply used his layman’s understanding, such an attempt is still unconstitutional.”

637 S.W.2d at 478.

It is true that it is “common knowledge” that “from time to time” inmates of the Texas Department of Corrections are released on parole, as so many of our cases have stated. Indeed, this is a generic fact, not necessarily an aspect of law. But suggestions that a life sentence is 17 years, or that convicts are released after serving one third of their assessed sentences are patently incorrect: most convicts are entitled to be considered for release on parole after earning credit for one third of their assessed sentences. See Article 42.12, Sec. 15(b), supra.

Judge Odom may well have made the most factually accurate observation in this regard in Heredia v. State, 528 S.W.2d 847, 853, n. 4 (Tex.Cr.App.1975), which was reiterated in Sanders, supra, at 351:

“The determination to grant parole, if and when made, rests upon many facts and events not known to the jury, not proper for consideration by the jury and not having occurred at the time of trial. * * * The decision to parole, if and when made, is beyond the province of the courts ... and therefore of the jury, and is exclusively a matter within the province of the executive branch of government, under proper regulation by the legislative branch.”

The thrust of this observation may be easily translated into an understandable verity: there is no way to predict whether or when any given convict will be released on parole.

There is no way for this court to predict this; there is no way courts of appeals or trial courts can predict this, and there is no way for juries to predict it.

This is the practical and factual basis for .the rule that jurors are not to consider the effect of parole in assessing sentences— aside from, though intertwined with, the constitutional basis for the rule.

•Accordingly, any interjection of the law of parole or its incidents into jury deliberations as a reason to assess a punishment, is not only legally improper (since it is neither constitutional nor relevant to the issue of punishment assessment, see Article 37.07, Sec. 3(a) and (b), V.A.C.C.P.) but is also erroneous because it suggests a factually inaccurate basis for punishment. Indeed, this is the very reason it has been repeatedly held that any discussion of parole law is misconduct. Munroe, supra; Sanders, supra; Heredia, supra.

It is clear then that if a single juror votes for an increased punishment because of some interjection of the subject of parole or its legal or factual incidents by another juror into punishment deliberations, harmful jury misconduct has occurred. Article 40.03(8), supra. It matters not that the topic, once broached, was not “discussed” in a “round table” “give and take” conversation; neither does it matter that the foreman reminded the jury of the trial court’s instructions against such discussion. Here-dia, supra. What does matter is that the convict’s punishment was arrived at on the basis of an improper consideration by at least one juror. Id.

I would hold the court of appeals erred in so narrowly construing our use of the word “discussion” in Munroe, supra. I reiterate: any oral interjection, be it a “mention” or “statement,” of the law of parole or its legal or factual incidents, constitutes a matter offered by the speaker for the consideration of other jurors and is therefore “discussion” within the meaning of Munroe, Sanders and Heredia, supra, and I so hold.

II.

RECEIPT OF OTHER EVIDENCE

In Munroe, supra, the so called “five-prong” test which was rejected in both Heredia, supra, (see Dally, dissenting); and Sanders, supra, (see Dally, dissenting), was explicitly rejected by a majority of the Court.

It is clear that, while not mentioned in Article 40.03(7), supra, the Court has generally required a showing of harm to the defendant: something akin to the fourth and fifth “prongs” of the rejected test; see n. 6, ante', or the second criterion of the test for jury misconduct under Article 40.-03(8), supra.

However, what kinds of “mentions,” statements, etc., constitute “other evidence” has been a good bit less clear.

It was observed in Heredia, supra, and has since been oft quoted:

“... [Information may be given to the jury, by a juror or someone else, which would constitute receiving other evidence. Information which would constitute other evidence would include, for example, a juror relating his personal knowledge of some particular case from which the jury might then try to ‘figure out’ what the parole law is. Also, a misstatement of the law, by being incorrect, would constitute other evidence, since by being false it certainly could not be classified as ‘common knowledge.’ ”

528 S.W.2d at 852-853.

Both the State and the court of appeals have read the above passage to mean that a statement regarding parole must be a misstatement of the law in order to constitute “other evidence.” The concomitant argument is made that, if the statement is “essentially” a correct recitation of the law, then no “other evidence” has been received.

Not only is such a rationale illogical, but it also proceeds from a misreading of Heredia, supra.

If we begin on the premise that the effect of parole laws is an improper and harmful basis for punishment determination, (and therefore all such evidence offered under the rules of evidence by a litigant during the penalty phase of a trial is to be summarily excluded), it follows that a correct statement regarding that prejudicial, inadmissible information made by a juror during deliberations is “other evidence” in the classic sense. Cf. Price v. State, 150 Tex.Cr.R. 161, 199 S.W.2d 168 (1947); and see, e.g., Moore v. State, 171 Tex.Cr.R. 182, 346 S.W.2d 349 (1961). Moreover, the utter futility of an appellate court’s attempting to determine whether a particular statement is “correct” has been well illustrated.

Indeed, we are again brought full circle, for it is clear that the only accurate statement about the operation of parole is that there is no way to predict whether or when any given convict will be released on parole.

Accordingly, I would adhere to all prior decisions, as the Court did in Heredia, supra, at 852, to the effect that “it is common knowledge that from time to time inmates of the Texas Department of Corrections are released on parole” and the mention of this common knowledge will not be considered interjection of “other evidence.” But any other assertion made — whether substantially correct or not — which would be excluded at trial (where its accuracy and relevance could be tested by adversarial process), surely constitutes “other evidence” within the meaning of Article 40.-03(7), supra, when foisted into punishment deliberations by a juror, and I would so hold.

To recapitulate, “other evidence” in this context is any assertion made regarding the law of parole or its legal or factual incidents which would be ruled inadmissible if offered at the punishment phase of trial, other than the common understanding that “from time to time” inmates of the Texas Department of Corrections are released on parole. If other evidence has been received by the jury in this regard, the defendant should demonstrate that at least one juror agreed to an increased penalty assessment because of the assertion made during deliberations, before reversal would be necessitated. Such a demonstration could, of course, be made by either direct or circumstantial evidence.

In this conclusion, I necessarily reject the line of cases which would require a reversal if the “other evidence” received is “untrue,” even if there is no showing it affected the ultimate punishment verdict. See, e.g., Jones v. State, 462 S.W.2d 578 (Tex.Cr.App.1971); Mays v. State, 320 S.W.2d 13 (Tex.Cr.App.1959); De La Rosa v. State, 167 Tex.Cr.R. 28, 317 S.W.2d 544 (1958); Jackson v. State, 248 S.W.2d 748, 157 Tex.Cr.R. 323 (1952). I cannot agree that reversal of a conviction is the appropriate remedy when there has been no showing that the “other evidence” regarding parole affected or influenced a juror. Accordingly, I would overrule these eases, their precursors and progeny.

III.

PREVENTION OF ERROR

It is painfully apparent that a new commitment to preventing improper parole discussions and resulting defective punishment verdicts is overdue. The standard admonition against considering the indeterminate sentence law or possible actions of the board of Pardons and Paroles is obviously insufficient.

I believe jurors fail to take this instruction seriously because they do not understand the policy behind it and are therefore factually misinformed about the operation of parole; indeed, they may well believe the intent of the instruction is to hide something from them. It follows that they would be better equipped to remove the operation of parole laws from consideration if they were given a common sense reason for doing so. As has been stated ante, the most understandable, practical reason— particularly from a layman’s perceptive — is that no one can predict when a convict will be released on parole, or whether he will ever be released on parole at all.

Accordingly, I would recommend that anytime a jury is charged upon the impropriety of considering the length of time a defendant will actually serve on an assessed sentence as in n. 12, ante, the trial court should add an explanation of the reason it should not be considered. As stated ante, the most factually accurate explanation of this I have found is contained in n. 4 of the opinion in Heredia, supra, quoted ante at p. 456. A synthesized version of this charge might read as follows:

“Further, you are instructed that the determination to grant parole, if and when made, rests on many facts and events not known to the jury and not having occurred at the time of trial. Since it cannot be predicted at this time when or even whether parole will be granted, you are not to mention, refer to, discuss or consider how long the defendant might be required to remain in confinement to serve the sentence you decide to impose. Such matters come within the exclusive jurisdiction, at some future time, of the Board of Pardons and Paroles and the Governor of the State of Texas, and are beyond the province of the courts, and therefore, of the jury.”

The addition of the above recommended charge or its equivalent to jury instructions would also create a self-correcting procedure for improper arguments concerning the operation of parole made by counsel. The harmful effect of a prosecutor’s improper argument would often be removed if either the trial judge could instruct, or defense counsel could argue in response, that no one can predict whether or when, if ever, “this defendant” will be released on parole. The potential benefits of giving the jury complete, accurate information are great. Compared with reversals, retrials and successive appeals, the additional burden in giving this recommended instruction on the administration of criminal justice wóuld be miniscule.

To the majority’s adherence to the unsupportable rule contrived in Sneed, I dissent.

TEAGUE and MILLER, JJ., join.

TEAGUE, Judge,

dissenting.

I wholeheartedly join all of the scholarly dissenting opinion that Judge Clinton has filed in this cause. His words of wisdom, concerning jurors who violate the usual instruction that is given by the trial judge — that jurors are not to discuss how long the defendant will be required to serve his sentence — are long overdue.

I observe that Judge Clinton has set out on page 458 a proposed instruction to jurors as to why they should not bother themselves with our parole law when they are deliberating on what punishment should be assessed the defendant.

I would add to his suggested instruction the following: “Violation of this instruction can subject the offender to contempt of court and a possible punishment of a fine of not more than $500 or by confinement in the county jail for not more than six months, or by both a fine of not more than $500 and confinement in the county jail for not more than six months.”

Art. 1911a, V.A.C.S., of which all trial judges of this State are aware, expressly provides that trial judges of this State have the power of contempt and may punish any offender with a fine not to exceed $500 or confinement in the county jail for not more than six months or by both such fine and confinement. A juror who violates a trial judge’s jury instruction that he or she is not to discuss how long a defendant will be required to serve his or her sentence subjects himself or herself to contempt of court.

Although we are all aware that some trial judges of this State have invoked their contempt power and held jurors in contempt for being late to court, for not showing up for jury duty, and other transgressions, I am unaware of any instance where any trial judge of this State has ever held a juror in contempt of court for violating the usual instruction that he or she is not to discuss what effect, if any, our parole law might have on his or her verdict of guilt or punishment. And I believe that this omission has contributed to more and more jurors violating the instruction.

I firmly believe that if trial judges of this State had in the past been more prone to invoke and apply their contempt power to jurors who had violated the usual admonition not to discuss the parole law, a contention such as that made in this cause would be infrequently urged in our appellate courts, rather than frequently asserted in our appellate courts as appears to be the case today. I am firmly convinced that if more trial judges would punish violators by remanding them to the county jail to serve at least three (3) days, not only would such get the attention of the violator, but word would quickly spread in the district or county that the trial judge or trial judges of that district or county mil not tolerate such a violation.

      . Article 40.03, V.A.C.C.P. provides in relevant part:
      "New trials, in cases of felony, shall be granted the defendant for the following cause, and for no other:

        ******

      (7) Where the jury, after having retired to deliberate upon a case, has received other evidence-, * * *
      (8) Where, from the misconduct of the jury, the court is of the opinion that the defendant has not received a fair and impartial trial. It shall be competent to prove such misconduct by the voluntary affidavit of a juror; and the verdict may, in like manner, be sustained by such affidavit;”
      (All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.)

      . At the time appellant was tried and convicted, Article 42.12, Sec. 15, supra, provided in part:

      (b) ... If a prisoner is serving a sentence for the offenses listed in Section 3f(a)(l) of this Article or if the judgment contains an affirmative finding under Section 3f(a)(2) of this Article, he is not eligible for release on parole until his actual calendar time served, without consideration of good conduct time, equals one-third of the maximum sentence or 20 calendar years, whichever is less, but in no event shall he be eligible for release on parole in less than two calendar years. * * * ”

      . While some inmates might receive credit for having served one year after actually serving only approximately seven months by the calendar, this is by no means a foregone fact at the time any given accused is tried.
      For example, in this case, the statement is factually incorrect (if for no other reason) because of the deadly weapon finding.

      . I am aware that there is sentiment favoring charges to juries on the law of parole eligibility this session of the Legislature. The mind boggles at the thought of the potential for reversible error inherent in such a proposition. Surely, any attempt to inform juries of the parole "law applicable to the case,” Article 36.14, V.A.C.C.P., in any given situation is so fraught with peril, it is not worth the risk. The only charge which should be given — by legislative mandate or otherwise — is something like that discussed post at 458.

      . This is also the reason it would be useless to instruct juries upon the constitutional and statutory provisions governing the executive branch’s exercise of clemency powers as was advocated by the State in oral argument before this Court in Munroe.

      . That test would require the defendant to show: (1) that a misstatement of the law (2) asserted as a fact was made (3) by someone professing to know the law (4) which was relied upon by other jurors (5) who for that reason changed their vote to a harsher punishment.

      . In fact, the only thing certain was that the speaker need not profess to "know the law" in order for the content of his statement to be "other evidence." Heredia, supra.

      . Starting with the opinion below: “something like ... that seven months was equal to a year” was held to comport with "common practice.” However, as the record shows, our appellant will not be receiving the benefit of “common practice” since he was found to have committed the instant offense with a deadly weapon. See also Douglas dissenting in Sanders, supra, at 355, n. 1 and accompanying test, where the majority is "roasted” for having reversed a conviction in Mays v. State, 320 S.W.2d 13, 167 Tex.Cr.R. 339 (1959) on the basis of a "misstatement of the law" which turned out to be less liberal than reality; the irony of the futility of basing reversals or affirmances on the “accuracy” of such statements by jurors was apparently lost on the dissenting author in Mays, as well as on the Sneed majority.

      . Interestingly, the second and third "prongs" of the standards adopted in Sneed — that the questioned statement must be "(2) asserted as a fact (3) by one professing to know the law” — have apparent genesis in the rules of evidence which are applicable to adversarial proceedings, and designed specifically to protect the integrity of information received by the jury.
      Thus, the rationale is that matters not asserted as fact by one professing personal knowledge (such as hearsay, opinion, etc.) would generally be inadmissible in court and are therefore, in a strict sense, not "evidence;" since such matters are not "evidence," they cannot be "other evidence."
      This remarkable progression certainly turns the policy behind rules of evidence on its head by ultimately condoning the jury’s receipt of facts in the deliberation room which would be excluded from their consideration at trial!

      .Apparently the general rule prohibiting a juror from explaining the reasoning behind his verdict does not apply in cases where a prima facie showing of improper parole discussion has been made. Compare, e.g., Sanders, supra, with Eckert v. State, 623 S.W.2d 359 (Tex.Cr.App.1981); Daniels v. State, 600 S.W.2d 813 (Tex.Cr.App.1980); Arnold v. State, 486 S.W.2d 345 (Tex.Cr.App.1972); Adams v. State, 481 S.W.2d 884 (Tex.Cr.App.1972).
      The justification for the rule’s suspension is equally apparent in this context: If jurors were unable to testify to the reasons for their punishment votes, the courts would be unable to determine whether the improper discussion was harmful; new trials would be required upon the mere showing that an improper discussion took place. Article 40.03(7), supra; see also n. 11, post.

      . Thus, I would reject all prior standards or analyses which would require reversal without a showing that the parole discussion actually affected the sentence assessed, and thereby harmed the defendant.
      I am aware that this holding constitutes a departure from the general rule applicable to Article 40.03(7), supra, cases, that "other evidence” received need only be "detrimental to the accused" in order to constitute reversible error. The departure is compelled in parole discussion cases because, unlike other kinds of “other evidence,” the existence of parole is uniquely a matter of common knowledge, potentially implicated in every felony trial. Moreover, the effect of an improper parole discussion on the jury’s verdict can be quantitatively ascertained much more readily than the effect of other kinds of "other evidence.”

      . “During your deliberations you are not to consider or discuss the Indeterminate Sentence Law or the possible actions of the Board of Pardons and Paroles or how long this defendant will be required to serve the punishment which you assess.”
      Morrison and Blackwell, 8 Texas Practice, Criminal Forms Ann. Sec. 81.03 (8th ed. 1977).
      Or, as the jury was instructed in this case:
      "Further, you are instructed that you are not to mention, refer to, discuss or consider how long the Defendant will be required to remain in confinement to serve the sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas.”

      . It seems the public’s "common knowledge” in this regard is really more accurately described as widespread misconception. Since the misdeeds of parolees are newsworthy, the public— judging from assertions made by jurors — is under the impression that all convicts are released early on parole. It was, of course, “common knowledge" at one time that the earth is flat.

      . If the Legislature is concerned about accurately informing juries about the law of parole and avoiding reversals for discussions of it by juries as well as arguments by counsel, this is the charge to be mandated by statute.

      . The usual instruction that is given in our trial courts is as follows: "You are further charged as part of the law in this case that you are not to discuss among yourselves how long the accused will be required to serve the sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas, and should not be considered by you.”


source: Caselaw Access Project

author: McCORMICK, Judge.

license: Public Domain

text:
    Ex parte Vincent Hopkins CALVIN aka Vincent Calvin Hopkins. Vincent Hopkins CALVIN aka Vincent Calvin Hopkins, Appellant, v. The STATE of Texas, Appellee.
    Nos. 67723, 67724.
    Court of Criminal Appeals of Texas, En Banc.
    May 8, 1985.
    See also 610 S.W.2d 479.

      Charles Rice Young, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., James C. Brough and Mack Arnold, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

Appellant was convicted of murder in our Cause No. 67,723. Punishment was assessed at forty years’ confinement. He now appeals that conviction. Also consolidated with that appeal is an Application for Writ of Habeas Corpus (our Cause No. 67,724). This application which was heard prior to appellant’s trial in Cause No. 67,-723 was denied by the trial court. Appellant’s main contention in both causes is that the trial court did not have jurisdiction to try him for the instant offense. This case points out some of the inherent problems built into the dual appellate system used in Texas when dealing with juveniles who have been certified as adults and then convicted of criminal offenses.

Appellant, a juvenile at the time of the offense, was arrested on January 26, 1979. He was immediately transferred to the custody of the director of the Harris County Juvenile Detention Home. A juvenile petition, dated January 30, 1979, asking that the “child be adjudged a child engaged in delinquent conduct,” was filed. In a “Reopened Amended” petition dated February 14, 1979, the State asked that “the Court considers (sic) discretionary transfer to Criminal Court and waive its exclusive original jurisdiction and transfer said child to the appropriate District Court or Criminal District Court for criminal proceedings.” A “Second Amended” petition dated February 21, 1979, was then filed. This petition changed the spelling of the murder victim’s name.

Thereafter, in conformity with the Family Code, appellant was certified as an adult and the case was transferred to the 182nd Judicial District Court. After an examining trial, appellant was then indicted. However, the record reflects that on August 6, 1979, the appellant’s special plea in bar was granted pursuant to an agreed order. This order recited that the 182nd District Court did not have jurisdiction and thus the two indictments pending against appellant were void for lack of proper jurisdiction. Appellant was released to the custody of the director of the Harris County Juvenile Detention Home until further proceedings in the juvenile court.

On August 7, 1979, a “Third Amended” petition was filed in the juvenile court requesting that the juvenile court waive its jurisdiction and transfer appellant to criminal district court. On October 18,1979, the juvenile court entered an order transferring appellant to criminal district court. Appellant gave notice of appeal to the Court of Appeals regarding the juvenile certification issue.

Meanwhile, in the 182nd District Court, appellant was given an examining trial and then indicted for the instant offense. Appellant’s motion to dismiss for lack of jurisdiction was denied. On January 30, 1980, appellant filed a pretrial writ of habeas corpus (our Cause No. 67,724) alleging that the criminal case should be dismissed on double jeopardy grounds. After conducting an evidentiary hearing, the trial court denied appellant’s application. Appellant was then tried for the instant offense. He was found guilty and sentenced to forty years’ confinement. Appellant then commenced the appeal of his criminal conviction through the criminal appellate system.

On July 17, 1980, after his criminal appeal had been filed, the First Supreme Judicial District Court in Houston handed down their opinion in the appeal from the juvenile proceedings. Matter of V.C.H., 605 S.W.2d 643 (Tex.Civ.App.—Houston [1st Dist.] no writ history, 1980). The Court of Civil Appeals found that the second transfer order emanating from the “Third Amended” petition was void in that the juvenile court had improperly erred in overruling appellant’s motion for a separate jury trial on the issue of appellant’s fitness to proceed with the transfer hearing. The Court of Civil Appeals also held that the first transfer order could not remedy this defect in that although the district court’s agreed order of August 6, 1979, did not purport to reverse the first transfer order, it did not leave the first transfer order intact. Thus, the Court of Civil Appeals reversed the second transfer order of October 18, 1979, and remanded the cause to the juvenile court for a jury hearing on whether appellant was fit to proceed to trial. If the juvenile court found appellant fit, then a new transfer hearing was to be held.

On March 11,1981, a third transfer hearing was held and the juvenile court certified the appellant and again signed a transfer order. The appellant appealed this order and on February 18, 1982, the Court of Appeals again reversed and remanded the cause because although appellant’s counsel announced that appellant would waive his right to a jury trial on the issue of competency, “the record is void of any evidence to show that the child was informed of the waiving of the jury, that the child joined in the waiver, or that the child was informed and understood the right and possible consequences of his waiving a jury trial.” V.C.H. v. State, 630 S.W.2d 787 (Tex.App.—Houston (1st Dist.) no writ history, 1982), at p. 789.

At appellant’s fourth transfer hearing, a jury trial was conducted on appellant’s fitness to stand trial. After the jury found that appellant was competent to stand trial, the trial court ruled that appellant should be certified, and a transfer order was signed on August 11,1982. Appellant once again filed an appeal. In an opinion handed down on October 13, 1983, the Court of Appeals, now familiar with appellant, affirmed the certification procedures. V.C.H. v. State, 662 S.W.2d 42 (Tex.App.—Houston (1st Dist.), no writ history, 1983).

In his brief to our Court which was filed shortly after the third transfer hearing, appellant contends that his conviction is void in that the trial court lacked jurisdiction over him since there was no valid transfer in existence at the time he was transferred from juvenile court to the criminal district court. The State, on the other hand, argues that although the second transfer order was void, the first transfer order was good and thus the criminal district court did have jurisdiction to adjudicate appellant’s criminal case. The State contends that the 182nd District Court had no jurisdiction to review the validity of the first transfer order of April 22, 1979, and thus the agreed order of August 6, 1979, had no effect on the transfer order. Furthermore, the State contends that the Court of Civil Appeals, the only court with jurisdiction to review the transfer order of April 22, 1979, found the transfer order to be valid.

Both the State and appellant urge this Court to apply the doctrine of “the law of the case” in the instant case. Under the doctrine of “the law of the case,” where determinations as to questions of law have already been made on a prior appeal to a court of last resort, those determinations will be held to govern the case throughout all of its subsequent stages. 6 Tex.Jur.3d, Appellate Review, Section 901, p. 378.

“It is inherent in the very definition of the doctrine of the law of the case that the doctrine is applicable only where the prior appellate decision was rendered in the same case in which the subsequent appeal is pending. And, as the rule is generally applied, the doctrine is limited to questions of law only, and does not apply to questions of fact. More explicitly, under the application of the doctrine, if certain questions of law have been previously decided by an appellate court on a prior appeal of the cause to such court, such questions will thereafter, on the taking of a subsequent appeal in the cause to the court, be deemed to have been concluded by the court’s decision on the former appeal, provided, of course, that the facts involved on both appeals are substantially the same.” (footnotes omitted) 6 Tex.Jur.3d, Appellate Review, Section 908, p. 386.

We agree that the application of the doctrine is appropriate to the instant case. It is axiomatic that an appeal from an order of a juvenile court is through the civil appellate system and is governed by the Rules of Civil Procedure. V.T.C.A. Family Code, Section 56.01. The Court of Criminal Appeals has no jurisdiction to review juvenile proceedings, except where a jurisdictional defect is raised. Johnson v. State, 594 S.W.2d 83 (Tex.Cr.App.1980); Watson v. State, 587 S.W.2d 161 (Tex.Cr.App.1979); Grayless v. State, 567 S.W.2d 216 (Tex.Cr.App.1978). Nonetheless, any alleged defect in the transfer process should be urged in an appeal from the transfer order as provided by V.T.C.A. Family Code, Section 56.01. In accordance with this procedure, once a juvenile case has been appealed through the civil system, the criminal appellate courts therefore must abide by the rulings of the civil appellate courts. Dillard v. State, 477 S.W.2d 547, 549 (Tex.Cr.App.1971); Dillard v. State, 479 S.W.2d 304 (Tex.Cr.App.1972); Tatum v. State, 534 S.W.2d 678 (1976). Thus we hold that where as in the instant case a civil appellate court has ruled on the correctness of juvenile proceedings, this Court is not empowered to review that ruling.

We have reviewed the opinion of the Court of Civil Appeals and find that the State made basically the same argument as to the validity of the first transfer order during the civil appeal.

“Appellee, the State of Texas, contends not only that none of the actions complained of constitutes reversible error, but also that this appeal is moot because a transfer order signed six months prior to the order now attacked is valid and will stand regardless of the action taken by this court in the present suit.” 605 S.W.2d 643 at 644.

As to this contention, the Court of Civil Appeals wrote:

“It is true that there is no indication that an appeal was ever taken from the first transfer order or that the juvenile court ever vacated its order. Further, the criminal district court’s agreed order finding that it had no jurisdiction does not purport to reverse the first transfer order, and even if it had, it would have lacked jurisdiction to do so. Section 56.-01 of the Family Code expressly vests jurisdiction over appeals from orders of the juvenile court in the Courts of Civil Appeals.
“We accept as correct the statement in the appellant’s original brief explaining the basis for the criminal district court’s order; he said that opposing counsel agreed that the case should be remanded to the juvenile court for a second transfer hearing ‘to perfect service on appellant’s natural mother who had never been notified of the Discretionary Transfer Hearing and who was not present.’ Appellant contends that this lack of service on her was a fatal defect, citing Section 53.06 of the Family Code, which provides, in pertinent part:
(a) The juvenile court shall direct issuance of summons to:
(1) the child named in the petition;
(2) the child’s parent, guardian, or custodian;
(3) the child’s guardian and (sic) li-tem; and
(4) any other person who appears to the court to be a proper or necessary party to the proceeding.
“A child’s custodian is defined by Section 51.02 of the Family Code as ‘the adult with whom the child resides.’ It is undisputed that under this definition the appellant’s foster father was his custodian and that the foster father was served and appeared at the first hearing. As subsection (a)(2) is clearly worded in the alternative, we consider that service on the custodian and the parent is not required. Moreover, there is nothing in the record to reflect that any party alleged or that the trial court determined that appellant’s mother was ‘a proper or necessary party’ to be served under subsection (a)(4). Thus, we conclude that failure to serve appellant’s mother did not invalidate the first transfer order. In any event, the validity of the first transfer order cannot be attacked in this proceeding, no timely appeal having been perfected.
“We hold, however, that when the judge of the criminal district court signed the agreed order that the plea in bar be granted, that both indictments against the defendant be dismissed, and that the defendant be released by the sheriff to the custody of the director of the juvenile detention home, the effect of his order was to end prosecution in the criminal district court and to remand the child to the jurisdiction of the juvenile court. Subsection (h) of Section 54.02 provides that the court to which the case was transferred ‘may remand the child to the jurisdiction of the juvenile court. We do not agree that this order left intact the first transfer order, thus making this appeal moot, and we overrule this counterpoint. ” (emphasis added) 605 S.W.2d 643, at 646-647.

It is apparent from our reading of the excerpt above that the Court of Civil Appeals found that although the first transfer order was not void, the agreed order of dismissal in the criminal district court somehow destroyed the operability of that first transfer order. Thus that order is no longer available for the State to rely on in lieu of the defective second transfer order.

As a last resort, the State argues that if the Court of Civil Appeals’ opinion is read to mean that the first transfer order was not operative, then we should conduct our own review of the validity of the order. As we noted above, the appellate review of juvenile proceedings is a creature of the civil appeals process. We have no jurisdiction to conduct such an inquiry.

Because the Court of Civil Appeals in its first opinion ruled that no operative order existed transferring appellant from the juvenile system to the adult criminal system, we are constrained to sustain appellant’s ground of error.

Furthermore, the fact that a valid and judicially approved certification order has now been made, does not cure the jurisdictional defects present in the case before us. At the time that appellant was indicted and tried for the present offense, there was no valid basis for the exercise of criminal jurisdiction over him. V.T.C.A., Penal Code, Section 8.07.

Appellant’s conviction is reversed and the cause is dismissed. This renders moot appellant’s writ of habeas corpus which is also dismissed.

MILLER, J., concurs.


author: W.C. DAVIS, Judge.

text:
    Ex parte Billy SLAUGHTER.
    No. 69449.
    Court of Criminal Appeals of Texas, en banc.
    May 8, 1985.

      Melinda Hoyle Bozarth, Huntsville, for appellant.
    Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

W.C. DAVIS, Judge.

Applicant filed this post conviction application for writ of habeas corpus pursuant to Art. 11.07, V.A.C.C.P.

On August 28, 1984, applicant’s federal probation was revoked and he was sentenced to two years’ confinement. Subsequently, on September 4, 1984, applicant was convicted in State District Court of Hall County, after his plea of guilty, of burglary of a building. He was sentenced to five years’ confinement.

Applicant asserts that he entered his plea pursuant to representations by the prosecutor, trial court, and his attorney that his state and federal sentences would run concurrently.

Included in the record before us is a copy of the “Agreed Punishment Recommendation,” signed by applicant, his attorney and the prosecutor. The agreement states that the State sentence is “to run concurrently with the two years assessed against defendant for violation of probation in the U.S. District Court in Amarillo, Texas.”

Also included in the record is an excerpt from the statement of facts at the plea hearing. Applicant’s attorney reminded the prosecutor that the plea agreement was that the sentences would run concurrently. The prosecutor seemed not to remember the agreement. However, the court then stated:

THE COURT: It is the order of this Court that you, Billy Slaughter, who has [sic] been adjudged guilty of the felony offense of burglary of a building, and whose punishment has been assessed at confinement in the Texas Department of Corrections for a term of five years, be delivered immediately by the Sheriff of Hall County, Texas, or his duly authorized Deputy, to the Director of the Texas Department of Corrections, or other persons legally authorized to receive your custody, where you shall be confined in the Texas Department of Corrections for a term of five years.
This sentence will run concurrently with the two years assessed against the Defendant out of the U.S. District Court in Amarillo, Texas.

On September 25, 1985, a detainer was received by the Texas Department of Corrections from the United States Marshal, which indicated that federal authorities would assume custody of applicant for a probation warrant after his term was served in the Texas Department of Corrections.

As evidenced by the detainer, the two sentences are not running concurrently. Applicant contends that under Ex Parte Chandler, 684 S.W.2d 700 (Tex.Cr.App.1985); Ex Parte Huerta, No. 69,352 (delivered January 30, 1985); Ex Parte Burton, 623 S.W.2d 418 (Tex.Cr.App.1981) and Joiner v. State, 578 S.W.2d 739 (Tex.Cr.App.1979), he must be allowed to withdraw his plea.

When an appellant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement, the State is bound to carry out its side of the bargain. If the State is unable to do so, a defendant is entitled to withdraw his plea. Joiner, supra. The State cannot perform the agreement to run his State time concurrent with his Federal time. Saulsbury v. United States, 591 F.2d 1028 (5th Cir.1979). Consistent with Burton, supra, and Chandler, supra, applicant is remanded to the Sheriff of Hall County to answer the indictment in Cause No. 2594 of the 100th Judicial District Court of Hall County.

It is so ordered.

ONION, P.J., and McCORMICK and WHITE, JJ., dissent.

      . Notwithstanding that the result in this case reflects the majority’s viewpoint, the writer of this opinion agrees with Judge Onion’s well-founded dissent in Ex Parte Chandler, supra.


author: PER CURIAM.

text:
    Michael J. PUMPHREY, Appellant, v. The STATE of Texas, Appellee.
    No. 905-84.
    Court of Criminal Appeals of Texas, En Banc.
    May 15, 1985.
    Hugh O’Fiel, Beaumont, for appellant.
    James S. McGrath, Dist. Atty., R.W. Fisher, Asst. Dist. Atty., Beaumont, Robert Huttash, State’s Atty., Austin, for the State.
   ORDER

PER CURIAM.

The Beaumont Court of Appeals, in a published opinion, affirmed the conviction of Michael J. Pumphrey, appellant, for committing the offense of sexual abuse. Punishment, enhanced, was assessed at thirty-three (33) years’ confinement in the Texas Department of Corrections and a $2,500 fine. See Pumphrey v. State, 691 S.W.2d 5 (Tex.App.—Beaumont 1984).

Thereafter, counsel for Pumphrey filed with the Clerk of the Beaumont Court of Appeals what purported to be an appellant’s petition for discretionary review. This Court eventually received that document. We carefully examined the document in order to make the determination whether it was prepared in conformity with Tex.Cr.App.R. 304(d), which rule states what an appellant’s petition for discretionary review should contain. This Court’s members unanimously agreed that the document was not prepared in conformity with the rule. On April 10, 1985, this Court entered the following Order:

It is therefore Ordered by this Court that within fifteen (15) days of the date of this Order, counsel for appellant shall file with the Clerk of this Court one (1) original of a petition for discretionary review, which is to be prepared in conformity with Tex.Cr.App.R. 304 (d), and nine (9) legible copies of the original. Counsel shall serve, by certified mail, return receipt requested, one (1) copy of the petition for discretionary review on the attorney of record for the appellee and one (1) copy of the petition for discretionary review on the State Prosecuting Attorney. Failure of counsel to comply with this Order will cause this Court to summarily refuse the document that has been filed on behalf of appellant.

On April 17, 1985, this Court received a second document from appellant’s counsel. We have carefully examined it in order to make the determination whether it was prepared in conformity with both the above rule and this Court’s Order dated April 10, 1985.

We find and hold that the second document that appellant’s counsel has filed with this Court does not comply with either Tex.Cr.App.R. 304(d) or this Court’s Order of April 10, 1985.

Therefore, pursuant to our Order dated April 10, 1985, this Court will treat the second document as “appellant’s petition for discretionary review” and will Order that it be summarily refused for failure to comply with both Tex.Cr.App.R. 304(d) and this Court’s Order of April 10, 1985.

IT IS SO ORDERED.

MILLER, J., does not join in this order.


text:
    Michael William BOONE, Appellant, v. The STATE of Texas, Appellee.
    No. 67065.
    Court of Criminal Appeals of Texas, En Banc.
    May 15, 1985.
    Rehearing Denied July 24, 1985.

      James E. Davis, Jim Hudson, Texarkana, Ark., for appellant.
    Neal Birmingham, Dist. Atty., Linden, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

McCORMICK, Judge.

Appellant was convicted of involuntary manslaughter. Punishment was assessed at five years’ confinement.

In his first ground of error, appellant contends the evidence adduced at trial was insufficient to show that his conduct caused the victim’s death. The evidence showed that the victim, an eighteen year old woman in good health was riding in a car which rear-ended a car driven by appellant on Highway 59 in northeast Texas. At the time of the accident appellant was backing up on the highway and, although it was dark, testimony showed that the lights on appellant’s car were not turned on. The victim was rendered unconscious as a result of the accident and was taken to the Atlanta Memorial Hospital with head injuries. Shortly thereafter, she was transferred to Schumpert Hospital in Shreveport, Louisiana. She never regained consciousness and died there six days later. No medical testimony was introduced showing the cause of death. Appellant maintains that, absent some medical testimony, there is no way to determine whether the deceased died from injuries sustained in the accident or from some other cause such as allergies to drugs administered, or infections contracted while she was in the hospital.

In 29 Tex.Jur.2d, Homicide, Section 180, p. 282, it is written:

“Opinion evidence is not the only mode of establishing the cause of the decedent’s death; circumstantial evidence may fully suffice for this purpose. It is not necessary to establish by the testimony of a physician the fact that the wounds inflicted by the defendant caused the death; it is sufficient if it appears from all the evidence that the wounds were sufficient to cause death, and that death occurred within a reasonable time after the wounds were inflicted. It is permissible to show the good health of the deceased prior to a shooting, his condition thereafter and his subsequent death.” (footnotes omitted)

Although it would have been preferable to have some medical testimony introduced into the record as to the cause of the victim’s death, we find that, based on the record before us, the evidence is sufficient to show that the victim died as a result of the injuries sustained in the accident caused by appellant. Any other theory is totally speculative. See Guerrero v. State, 605 S.W.2d 262 (Tex.Cr.App.1980); Hines v. State, 515 S.W.2d 670 (Tex.Cr.App.1974); Williams v. State, 464 S.W.2d 114 (Tex.Cr.App.1971); Morris v. State, 168 Tex.Cr.R. 29, 322 S.W.2d 632 (1959). Compare Reeves v. State, 131 Tex.Cr.R. 560, 101 S.W.2d 245 (1937) (where record contained evidence of another potential cause of death). Appellant’s first ground of error is overruled.

In his third ground of error, appellant argues that the court’s charge on the presumption of intoxication amounted to a comment by the court on the weight and credibility of the evidence and caused the burden of proof to be shifted to the defendant. The abstract portion of the charge defined the offense of involuntary manslaughter and intoxication. Then followed a paragraph on the presumption of intoxication:

“Where evidence of the amount of alcohol in a person’s blood at the time of the act alleged as shown by chemical analysis of his blood, breath, urine or any other bodily substance, shows to have been 0.10 percent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of intoxicating liquor; however this presumption may be overcome by other evidence showing that the person was not under the influence of intoxicating liquor.”

Appellant objected to the charge on the same grounds now urged on appeal.

In Eckman v. State, 600 S.W.2d 937 (Tex.Cr.App.1980), this Court examined a similar charge and wrote the following:

“... We also observe that the charge actually given instructed the jury that the presumption ‘may be overcome by evidence,’ while it neglected to inform the jury, as required by [V.T.C.A., Penal Code,] Sec. 2.05, that if it had ‘a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.’ In this respect the charge was at best confusing, and could have shifted the burden of proof in the minds of the jurors.” [material in brackets added] 600 at 939.

See also Ginther v. State, 605 S.W.2d 610 (Tex.Cr.App.1980).

We find that the court’s charge in the instant case suffers from the same defect as the charges in the two cases cited above. The charge as worded created the possibility that the jury could have misunderstood the burden of proof as to the presumption of intoxication. Under Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985), the requisite harm is clearly demonstrated. Thus the trial court erred in overruling appellant’s objection to the charge.

The judgment is reversed and remanded.

TEAGUE, J., concurs in the result.


author: ROBERTSON, Justice.

text:
    TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Mildred L. GOODWIN, Appellee.
    No. C14-84-326CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1985.
    Rehearing Denied April 4, 1985.

      S.P. Lewis, Jr., Galveston, for appellant.
    Gregory W. Allen, Bieganowski & Allen, Houston, for appellee.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

ROBERTSON, Justice.

This is a workman’s compensation case. The jury found favorably for appellee on the issues concerning (1) good cause for delay in filing her claim with the Industrial Accident Board, and (2) the date of last injurious exposure to the hazards of asbestos. The issues before us call for a determination of whether there is any evidence to support these jury findings. We affirm.

Previous to the trial from which this appeal is taken, the trial court had rendered summary judgment in favor of appellant, but such judgment was reversed and remanded for trial. Goodwin v. Texas General Indemnity Co., 657 S.W.2d 156 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

In its first point, appellant contends the trial court erred in failing to direct a verdict in its favor because appellee failed to file her notice of claim with the Industrial Accident Board within six months of the date of death. Appellant acknowledges this is a challenge to the legal sufficiency of the evidence. Therefore, if there is any evidence to support the finding of “good cause”, the point must be overruled. And, in searching for such evidence, we must be guided by the test laid down by the supreme court:

The test of a showing of good cause for delay in filing a claim beyond the statutory period is the standard of conduct of an ordinary prudent person. The question is one of fact to be determined by the trial court or jury whose decision will not be disturbed unless the evidence is such that reasonable minds could reach no other conclusion than that good cause was not shown.

Texas State Highway Department v. Fillmon, 236 S.W.2d 635, 637 (Tex.Civ.App.—Eastland 1951), aff'd 150 Tex. 460, 242 S.W.2d 172 (1951). Bearing in mind these two principles, the evidence reveals the following: The deceased, husband of appellee, had been employed by Marathon Oil Company, some 22 years when he retired in 1972. On November 1, 1977 surgery was performed by Dr. Hink; cancer of the lungs was found, from which he died December 4, 1977. Neither appellee nor the deceased were forewarned of cancer. Following the surgery, Dr. Hink asked appel-lee if her husband had ever worked around asbestos. She testified “that was the first hint” she ever had that it might be work-related. Sometime in March, 1978, she discussed with her daughter, a legal assistant with Johns-Manville, (a manufacturer of insulating material), in Colorado about filing a claim with the Industrial Accident Board. Her testimony was that her request for a copy of the hospital and clinic records of her deceased husband was denied. It was only after her daughter in Colorado had an attorney call the hospital that she received a copy of the medical records. After she received them, she forwarded them to her daughter who had a physician with Johns-Manville study them. She further testified that while that physician would not render a written report because of a possible conflict, he orally rendered the opinion that the cancer was a “textbook case” of asbestosis, which opinion she received about the first of June 1978. Her daughter assisted her in completing a claim form which she personally took to the post office in La Marque and mailed. She identified a copy of the form dated June 11,1978 and the testimony reasonably supports the conclusion that it was mailed either that day or reasonably soon thereafter. According to unobjected hearsay testimony, this report was never received by the Industrial Accident Board. Finally, there was some evidence that prior to filing a claim appellee desired to have substantiating evidence that her husband’s death was work-related and this was also a reason she had not filed the claim sooner. She gave as her reason for this the fact that one of the duties of her husband was to process such claims and that he had strong feelings against unmeritorious claims.

To hold as appellant suggests, we would have to determine, as a matter of law, that the above evidence, construed most favorably to the claimant, admits no other reasonable conclusion than that she failed to act as an ordinary prudent person. Moronko v. Consolidated Mutual Insurance Co., 435 S.W.2d 846 (Tex.1968). We refuse to so hold. Just as the courts have recognized a reasonable period of time for investigation, preparation and filing of a claim after the seriousness of the injury is determined, Texas Employers’ Insurance Association v. Renfro, 496 S.W.2d 227 (Tex.Civ.App. [14th Dist.] 1973), we believe, under the facts as presented by this record, a reasonable period of time is allowable for investigation, preparation and filing of a claim to determine if the death resulted from an occupational disease. See Commercial Insurance Co. of Newark, New Jersey v. Smith, 596 S.W.2d 661 (Tex.Civ.App.—Fort Worth 1980). Appellant’s first point is overruled.

In its second point of error, appellant contends the trial court erred in failing to direct a verdict in its favor for the failure of appellee “to comply with the duty of continuing diligence by not filing her claim within a reasonable time after the expiration of the six-month limitation.” This, too, is a challenge to the legal sufficiency of the evidence. While there is no real dispute in the evidence, when we look at the evidence in the light most favorable to the finding of good cause, we discern:

After appellee had mailed the notice to the Industrial Accident Board, she subsequently had conversations with her son, who was an attorney, about the matter. He testified that since he did not handle workman’s compensation cases he talked with a lawyer friend who did and was advised that it would probably be a month to six weeks before the Board set a hearing and it would then notify the claimant. The son “thought” it was in August or possibly “close to the first of September” when he first called the Industrial Accident Board to inquire about the claim. He was advised by a lady at the Board that the computer did not show a pending claim and her attitude was that this wasn’t unusual. The lady then told him not to send another claim immediately but to give her a little time to physically check to make sure if there was some reason it had not been put in the computer. He further stated that after he had waited “a few days — maybe 10 days” he decided to file another claim, which was filed on September 19, 1978.

What we said above applies equally as well to this point. Applying the rule by which we test the legal sufficiency of the evidence, we cannot say this amounts to no evidence. The second point is overruled.

In its third point of error, appellant asserts that it was entitled to judgment as a matter of law under Article 8306 § 25, as it then existed, since appellee’s husband was last exposed to asbestos prior to 1970. We disagree.

At trial, through the testimony of appel-lee, other Marathon employees and appel-lee’s medical expert, there was evidence to support the jury’s finding that appellee’s husband continued to be exposed to asbestos fibres until his retirement in May, 1972. Since TEX.REV.CIV.STAT.ANN. art. 8306 § 25 was repealed in 1971, the three year limitation period would not be applicable to this case. Appellant’s third point is overruled.

The judgment is affirmed.


text:
    AQUAMARINE OPERATORS, Appellant, v. Ida E. DOWNER, Appellee.
    No. C14-84-635CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1985.
    Rehearing Denied April 4, 1985.
    Terry P. Ayre, Jeffrey R. Bale, Joseph H. Finkel, Brown, Sims & Ayre, Houston, for appellant.
    Mike Kerensky, John O’Quinn, John O’Quinn & Associates, Frank M. Staggs, Jr., O’Quinn & Hagans, Houston, for appel-lee.

      Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

ROBERTSON, Justice.

Aquamarine Operators, Inc. appeals a judgment for $1,685,988.00 entered after the trial court struck its pleadings as a discovery sanction. The controlling issue on appeal is whether those sanctions were proper. After a careful review of the record, we believe the court’s action was erroneous and accordingly reverse and remand the cause.

The facts forming the basis of this lawsuit can be briefly summarized. Appellee’s husband died while working as a seaman on appellant’s vessel. Appellee brought a wrongful death action under the Jones Act and general maritime law. After appellant’s answer to this pleading was filed, appellee issued notice to take oral depositions of eight people. These people were scheduled for deposition three times, twice by notice and once by agreement, but appellant notified appellee on two of those occasions that they were unable to attend because their vessel was “out at sea.” On the day following the last of these two notices, appellee filed a motion for sanctions and a hearing on that motion was set. Only the appellee appeared at that setting and the judge thereafter entered an order striking appellant’s answer. The trial court subsequently refused to set aside his order granting sanctions, and after a jury trial was held solely on the issue of damages, judgment was entered against appellant.

While appellant raises six points of error challenging the judgment, we believe the first two points are dispositive of the appeal. Appellant first contends that the trial court erred as a matter of law in striking its answer because Rule 215a, Texas Rules of Civil Procedure, which contained discovery sanctions applicable at that time, permitted the trial judge to strike a party’s pleadings only when a “party or an officer or managing agent” failed to comply with a discovery request. Thus, it argues, since the witnesses here noticed for deposition were not parties, this particular sanction was not an available option. We agree.

To properly address this issue, we first turn to the then applicable language of rule 215a.

Failure of Party or Witness to Attend. If a party or an officer or managing agent of a party, except for good cause shown, fails to appear before the officer who is to take his oral deposition or his answers to written questions or cross-questions under these rules, after proper service of subpoena or notice as provided in Rule 201, the court in which the action is pending on motion and notice may strike out all or any part of the pleading of that party, or dismiss the action or proceeding or any part thereof, or direct that such party shall not be permitted to present his grounds for relief or his defense, or enter a judgment by default against that party, or make such other order with respect thereto as may be just.
Any witness who, except for good cause shown, fails to appear before the officer who is to take his oral deposition or answers to written questions or cross-questions under these rules, after proper service of subpoena, may be punished as for contempt of the court in which the action is pending or of the district court in the district in which such deposition or answers are to be taken, and an attachment may issue out of such court for such witness, as in ordinary civil cases. (Emphasis added.)

TEX.R.CIV.P. 215a(c) (Vernon 1976). This rule obviously makes a distinction between parties and witnesses. See Barrientos v. Texas Employers’ Insurance Association, 507 S.W.2d 900, 903 (Tex.Civ.App.—Amarillo 1974, writ ref’d n.r.e.). It therefore becomes our task to determine whether the trial court had sufficient information before it to decide if the requested deponents fell within the “party” category. We are guided in this determination by the principle that the movant, here the appellee, had the burden of proof before the trial court. See Mobile, Inc. v. Cone, 457 S.W.2d 175, 176 (Tex.Civ.App.—Tyler 1970, writ ref’d n.r.e.).

The record before us reveals that only certain pertinent information was before the trial court at the time the sanctions were granted. It included a notice of deposition filed May 4,1983, requesting the appearance of the following persons with no further designation of their status:

1. William Balou;
2. Chester P. Dalfrey;
3. Ross Pearce;
4. Clifford Crider;
5. Ernest Richardson;
6. Donald Doswell;
7. The supervisor of Chester P. Dal-frey;
8. Custodian of the entire personnel file for Edward Pierce Downer.

A second notice contained an identical listing. The actual motion for sanctions itself was the only document indicating that any of the requested deponents were anything but crew members. This motion, sworn to by appellee’s attorney, referred to “the entire crew as well as the captain’s supervisor and a member of Aquamarine Operators to discuss the fringe benefit program for the Decedent.” At the time the sanctions were granted the requested deponents had not been further identified in any of the papers before the court.

It is also noteworthy that there evidently was not a “hearing” on the motion for sanctions. The “Notice of Submission” notified appellant that the motion would be heard on July 18, 1983, “without the necessity of an oral hearing unless one is requested by you.” (Emphasis supplied). While this hearing was reset to August 22, neither appellant nor his counsel appeared on that date (as will be shown later on) and neither the order granting sanctions nor the docket sheet reflects the court heard any evidence.

Even stretching these listings and sworn statements to the point of implications, we do not believe the trial court had sufficient evidence before it to characterize any of the noticed persons as “a party or an officer or managing agent of a party” as required by the rule. The crew obviously does not fit into any of those categories. While the supervisor of Chester Dalfrey, the captain, might be considered a managing agent of the vessel, this bears no relationship whatsoever to the required category, that is, a managing agent of the party, Aquamarine Operators. See Davis v. Sea Fresh Fisheries, Inc., 1983 A.M.C. 1165 (W.D.Wash.1981). The noticing of the custodian of records, alternatively referred to as a member of Aquamarine Operators, is equally ambiguous. Such a designee need not, by definition or implication, be an official of the corporate party. Under this record it was not possible for the court to determine that any of these people were parties, or officers or managing agents of the party defendant, Aquamarine Operators. Consequently the court could not, as a matter of law, strike appellant’s pleadings under the dictates of rule 215a.

While we believe that the trial court did not have the authority to impose this sanction, of equal importance in our decision is the issue of whether that action constituted an abuse of discretion. See Bass v. Duffey, 620 S.W.2d 847, 849 (Tex.Civ.App.—Houston [14th Dist.] 1981, no writ). We are aware of the recent judicial trend of taking firmer action for discovery abuse. See, e.g., Kilgarlin & Jackson, Sanctions for Discovery Abuse Under New Rule 215, 15 St. Mary’s L.J. 767 (1984). Although we believe the facts here did not present an appropriate case for the extreme discovery sanction imposed, in light of the trend to the contrary, we will carefully detail the series of events leading to the trial court’s granting of the motion for sanctions.

Plaintiff-appellee filed her original petition on January 27, 1983. On May 4, 1983, she filed the first notice of intention to take depositions on June 1, 1983. On June 1, appellant’s attorney called appellee’s attorney and informed him that he had just been notified that the crew was out at sea and therefore was unavailable for the deposition. The two attorneys then informally agreed to reset the depositions for June 22, 1983. On June 21, appellant’s attorney told appellee’s attorney that the crew was again at sea and would not be able to attend the deposition scheduled for the next day. Appellant’s attorney suggested that the crew would be able to attend a July 5 deposition in Houston, and appellee’s attorney thereafter noticed a deposition for that date and location.

There is some dispute as to the next turn of events. In a response to the motion for sanctions, appellant’s attorney stated under oath that on July 1, he contacted counsel for appellee and requested that the depositions be taken in New Iberia, Louisiana, where the crew’s vessel was docked. The crew was unable to go to Houston as scheduled because a skeleton crew had to remain with the vessel at all times. He further stated that appellant chartered a plane and informed appellee’s counsel that they would fly him to New Iberia at their expense. On the morning of July 5, appellant’s counsel called counsel for appellee to give him directions to the airport where the chartered airplane was waiting. He was informed by the secretary that appellee’s attorney was out of the office. That afternoon appellant’s attorney was notified that appellee’s attorney refused to make the trip. In an unsworn letter to the court (in answer to appellant’s response to the motion for sanctions), appellee’s attorney asserted that appellant’s recitation of the events of July 1 was “blatently false.” He stated that appellant’s attorney did not contact him at all on July 1, and in fact did not call him until 10:00 a.m. on July 5, one hour after the deposition was to begin. Appel-lee’s attorney told the court that only at this point did counsel offer to fly him to New Iberia, which request he did refuse because he was preferentially set for trial the next day.

The next day, July 6, appellee filed her motion for sanctions, and the hearing thereon was set for July 18, 1983. Appellant responded to this motion, detailing the above-described events. Appellee responded to this with the unsworn letter, pointing out inaccuracies in appellant’s allegations. The trial court had all of this information before it at the time it signed the order granting the sanctions on August 22.

While this summarization completes the chronological facts leading to the granting of sanctions, several other factors significant to the court’s decision are also presented in the record. First, appellant’s attorney had a number of reasons for not appearing at the hearing. Hurricane Alicia came through on August 18, and appellant’s attorney, who lives in La Porte, suffered storm damage to his residence as a result thereof. Appellant’s attorney was also scheduled for trial on August 22. Finally, and perhaps most importantly, appellant’s counsel’s secretary filed an affidavit indicating that she had been told the hearing was scheduled for September 6, 1983. She stated that the clerk of the trial court called her to confirm the availability of the August 22 hearing date. The secretary checked counsel’s calendar and found a conflict on that date. She called the clerk and notified her of the conflict, at which time they agreed on the September 6 date. The clerk said she would call appellee’s counsel to confirm that date with him, and that she would call the secretary back only if there was a problem. The clerk did not return the call, so she assumed the September 6 setting was correct. These scheduling problems certainly are of some value in the decision to strike pleadings.

Appellant points out further facts for our consideration. First, the very nature of its business is such that it is difficult to produce the crew for deposition. When the crew ships out, they often spend substantial periods of time offshore. The crew would often have to return to an offshore oil patch shortly after arriving onshore. Furthermore, because of the currently depressed offshore oil industry, appellant suggested that they found it necessary to take work whenever they could find it, even if before a scheduled deposition. Secondly, none of the deponents resided in Texas, making it difficult to attend a Houston deposition.

We also note that appellee apparently never sought only the harsh sanction imposed. In the motion, appellee’s prayer was in the alternative — either strike the pleadings and enter default judgment or award attorney’s fees for the three days lost. In appellee’s letter (referenced above) to the court, appellee reasserted the request for sanctions “and in addition, would at least ask this Court to enter an Order compelling the Defendant to produce its crew within thirty (30) days” for depositions.

The very timetable of this cause indicates a factor for consideration regarding abuse of discovery. The cause had been on file less than eight months, and the motion for sanctions was granted less than four months after the first notice of deposition. Although the motion itself was on file for over a month when the motion was granted, appellee’s attorney was on vacation from July 28 until August 18. In a sworn affidavit, an attorney from appellant’s firm said that he spoke with appellee’s attorney before he left on vacation in an attempt to reschedule the depositions before the sanction hearing. Since such rescheduling was impossible, appellant’s attorney asked him to pass the hearing on the motion for sanctions and promised that he would produce the crew upon counsel’s return. Appellee’s attorney said that he would not pass, but that he would not request the court to strike appellant’s pleadings but rather would only ask for an order compelling the crew members’ appearance.

Under this state of the record, we cannot hold that the trial court did not abuse its discretion. While the depositions were scheduled twice formally, and once by agreement, this is not outrageous in light of the explained nature of appellant’s work. The appellate record does not indicate that appellant’s crew ever actually refused to appear, but rather evidences that appellant requested reschedulings due to their unavailability. Although there are some conflicts in the various versions of the facts, these conflicts, along with the short time .between the first scheduled deposition and the granting of sanctions, clearly presented a vague enough situation that the judge should not have resorted to striking appellant’s pleadings. Though we certainly can understand the court’s apparent irritation at appellant’s counsel’s failure to appear at the sanctions hearing, the subsequent response outlining his reasons for non-appearance further fortifies our belief that the court abused its discretion.

Appellee places significant reliance on Wiley v. Browning, 670 S.W.2d 729 (Tex.App.—Tyler 1984, no writ). We believe this reliance is misplaced. In that case a party-defendant to a lawsuit failed to appear for a noticed deposition. After this single absence, the plaintiff filed a motion for sanctions. A hearing was held, and the trial court granted the motion and defaulted the defendant. The Tyler court found the trial court had not abused its discretion. We do not find the decision controlling here because we believe there are several distinguishing factors. First, the defendant there never notified the plaintiffs that he would not be present. Secondly, he did not offer to appear at a later date for his deposition, and when questioned by the court, the defendant stated “I let my wife handle all the business she could, and I didn’t want to be bothered with it.” Finally, the parties had informally agreed to depositions on “several” prior occasions, but none of these had resulted in the taking of a deposition. This is easily contrasted with this case, where appellant, although cancelling depositions, made efforts to reschedule them each time. Furthermore, the cancellations did not appear to be deliberate evasions, but rather were a result of appellant’s work conditions.

Appellee also relies upon the recent case of City of Houston v. Arney, 680 S.W.2d 867 (Tex.App.—Houston [1st Dist.] 1984, no writ) where the court approved the granting of sanctions by striking the defendant’s answer and entering default judgment. The facts of that case do not, however, compare with the facts of this case. In Arney, answers to interrogatories were due six months prior to the striking of defendant’s answer. During this time an order was issued compelling answers, which order was completely ignored by the defendant. No action was taken by the defendant until plaintiff’s motion for sanctions was filed. This is easily contrasted with appellant’s repeated attempts to reschedule depositions in the four month period between the first notice and the order striking its pleadings.

We find comfort in the language of the United States Supreme Court in National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 2781, 49 L.Ed.2d 747 (1976):

[T]he most severe in the spectrum of sanctions [dismissal or default] provided by 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).

The facts of this case simply do not, in our opinion, show this to be an appropriate case to impose the ultimate sanction of striking the pleadings and entering default judgment.

In conclusion, we hold the granting of the discovery sanctions constituted both an error at law and an abuse of discretion. Having thus disposed of appellant’s first two points, it is unnecessary to discuss the remaining points.

The judgment is reversed and the cause remanded with instructions to reinstate appellant’s answer.

      . Although Chester Dalfrey was eventually identified as the captain, the trial court record did not specifically contain an identification of him as such at the time the sanctions were granted.

      . In her brief, appellee states that the notice of deposition required appellant to produce "its President as the supervisor of Captain Dalfrey.” The record before us indicates that the record available to the trial court at the hearing on sanctions is devoid of any information indicating that the president of Aquamarine Operators had been noticed.


text:
    Charles T. MOBLEY, et al., Appellants, v. Henry Penn WENGER, et al., Appellees.
    No. C14-84-707CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 7, 1985.
    Billy H. Pollard, Smith, Pollard & Lowes, Houston, for appellants.
    Roger Wright, Jr., Roger Townsend, Fulbright & Jaworski, Houston, for appellees.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

ROBERTSON, Justice.

This is an appeal from a summary judgment granted in favor of appellees on their statute of frauds defense to an alleged oral employment contract. The issue before us is whether a fact issue existed concerning appellants’ plea of promissory estoppel. We affirm.

A written “understanding of the agreement” entered into between appellant Purcell and appellees Wenger and Wester-house forms the basis for the lawsuit. The agreement concerned the formation of a company to be called “Pip Minerals Company.” While the written agreement covered several subjects, the provision applicable to the issue before us is paragraph 10, providing:

Agreements will be negotiated covering stock buy-and-sell arrangements, employment contracts, non-permissible outside commercial activities, and so forth.

Appellant Purcell was to be the Divisional Executive Director of the newly formed company. Prior to the time he assumed such position, he recruited appellant Mob-ley to leave his present employment (where Purcell was also employed) to work for the new company. After employment for one year, both appellants were discharged and they filed suit alleging breach of an oral five year contract of employment. Appel-lees defended on the basis of the statute of frauds and appellants asserted promissory estoppel.

The sole issue before us is whether appellants established a genuine issue of fact as to their plea of promissory estoppel. Unless appellants can establish each element of promissory estoppel, appellees are entitled to judgment as a matter of law on the affirmative defense of the statute of frauds. “Moore ” Burger, Inc. v. Phillips Petroleum Company, 492 S.W.2d 934, 936 (Tex.1972).

The doctrine of promissory estoppel as applied by the supreme court in Wheeler v. White, 398 S.W.2d 93, 96 (Tex.1965), was derived from the language of the Restatement of Contracts § 90 (1932). Section 90 of the Restatement expresses the doctrine in the following words:

A promise which the promisor should reasonably expect to induce action or for-ebearance of a definite and substantial character on the part of the promisee and does induce such action or forebearance is binding only if injustice can be avoided only by enforcement of the promise.

“This [promissory estoppel] does not create a contract where none existed before, but only prevents a party from insisting upon his strict legal rights when it would be unjust to allow him to enforce them....” “Moore” Burger, 492 S.W.2d at 936. (citation omitted). The court in explaining the foregoing rules of substantive law stated: “The Restatement expressly recognizes in § 178, comment f, that the doctrine may operate to preclude a defense based on the statute of frauds, in these words:

Though there has been no satisfaction of the Statute, an estoppel may preclude objection on that ground ... A misrepresentation that there has been such satisfaction in reliance on the representation, precludes proof by the party who made the representation that it was false; and a promise to make a memorandum, if similarity relied on, may give rise to an effective promissory estoppel if the Statute would otherwise operate to defraud.”

“Moore” Burger, 492 S.W.2d at 937 (emphasis original). There is no contention in the instant case that appellees misrepresented that a writing complied with the statute of frauds. Therefore, appellants must establish that an additional promise to reduce the first promise to writing was made in order to remove this unenforceable oral promise from the statute of frauds before promissory estoppel may apply. 21 Turtle Creek Sq. Ltd. v. New York St. Teach Retire. Sys., 432 F.2d 64, 65 (5th Cir.1970), cert. den. 401 U.S. 955, 91 S.Ct. 975, 28 L.Ed.2d 239 (1971); Dickerson v. Auto Ctr. Mfg. Co., 594 F.2d 523, 528 (5th Cir.1979); Boddy v. Gray, 497 S.W.2d 600, 604 (Tex.Civ.App.—Amarillo 1973, writ ref’d).

From reading Purcell’s deposition, we are unable to find any evidence of the second promise to reduce the first unenforceable promise to writing. As we understand Purcell’s argument, he relies upon paragraph ten of the letter of intent for evidence of the second promise. The letter of intent stated that employment contracts would be negotiated. We can hardly construe this language as support for Purcell’s argument. Since there is no evidence of the second promise to reduce the first promise to writing, Purcell’s reliance on the doctrine of promissory estoppel is misplaced.

Mobley, in his deposition, testified that he was recruited by Purcell while both of them were employed elsewhere. Mobley stated that he was shown the letter of intent and was told that he would receive a contract like Purcell’s. Purcell testified that he told Mobley he would have a five year contract but never promised him that he would not be discharged.

Even if we should assume Purcell was authorized to enter into the contract alleged by Mobley, the record is silent as to a second promise by appellees to reduce the unenforceable promise to writing. As such, Mobley is unable to invoke the doctrine of promissory estoppel.

Failure to recognize promissory estoppel more liberally has been said to present harsh results; however,- as it has been stated, the failure to strictly limit its application would allow the exception to swallow the rule. Reynolds v. Stephens Studios, 659 F.2d 44, 45 (5th Cir.1981).

The judgment of the trial court is affirmed.