author: COUNTISS, Justice.

text:
    Virgil CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 07-82-0171-CR.
    Court of Appeals of Texas, Amarillo.
    April 16, 1984.
    Discretionary Review Granted Jan. 16, 1985.

      Clifford W. Brown, Mike Brown, Brown, Harding, Fargason & Brown, Lubbock, for appellant.
    Travis Ware, Marta Rosas, Sp. Prosecutors, Lubbock, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.

      . Tex.Penal Code Ann. § 21.09 (Vernon 1974), as amended by 1975 Tex.Gen.Laws, ch. 342, § 8, at 914. The statute was repealed by 1983 Tex. Gen.Laws, ch. 977, § 12, at 5321, effective as to offenses committed on or after September 1, 1983. See now Tex.Penal Code Ann. §§ 22.011, 22.021 (Vernon Supp.1984).

   COUNTISS, Justice.

A jury convicted appellant of rape of a child, section 21.09 of the Penal Code, and assessed his punishment at eight years in the penitentiary, probated, and a fine of $10,000.00. Appellant attacks the conviction by six grounds of error, contending the trial court erred in failing to require the State to elect which act of intercourse was being relied on for conviction, in giving an erroneous limiting instruction on extraneous offenses, in granting the State’s motion for change of venue and denying appellant’s motions, and in refusing to admit rebuttal evidence tendered by appellant. We agree that an eléction was required and that the limiting instruction was erroneous; therefore, we reverse and remand.

As pertinent here, the single-count indictment charged that appellant:

on or about the 28 day of September, A.D. 1979, and anterior to the presentment of this Indictment, in the County and State aforesaid, did then and there knowingly engage in sexual intercourse with [B_ A_], a female then under the age of 17 years, and not then the wife of the said defendant....

B.A. was employed by appellant to clean his office and occasionally perform various other work for him. She testified that she and appellant had sexual intercourse numerous times over a three-year period beginning when she was 12 years old and ending on September 27, 1979, when she was 15 years old. The majority of the acts of intercourse occurred in appellant’s office, although other locations were occasionally utilized. On most occasions, she would report for work, perform her assigned employment duties, have intercourse with appellant in his office, receive compensation and return to her home. The acts of intercourse she related nearest the September 28 date alleged in the indictment were on September 18, 19, 20, 21, 23, 26 and 27.

By his first ground, appellant contends the trial court erred in not requiring the State to elect the act of intercourse upon which it was relying for a conviction under the indictment. Appellant first brought the matter to the attention of the trial court when B.A. testified, and the court indicated it would give a limiting instruction at the proper time. When the State rested, appellant, outside the presence of the jury, again asked that the State be required to elect and state specifically which offense, of the many presented, was relied on for a conviction. The court then advised counsel, but not the jury, that the State would be limited to the acts occurring between September 18 and September 27. Appellant excepted to the ruling because it did not limit the State to a specific date. Later, he lodged the same objection to the jury charge, which authorized a conviction if the jury found that appellant committed the crime “on or about the 28th day of September....”

When the State alleges one offense in a single-count indictment and presents evidence of several separate acts, each sufficient to support a conviction under the indictment, it must elect the act upon which it is relying for a conviction. Crocker v. State, 573 S.W.2d 190, 198 (Tex.Crim.App.1978); O’Clair v. State, 364 S.W.2d 375, 376 (Tex.Crim.App.1963); Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366, 368 (1957); Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377, 378 (1922). In Bates, for example, the defendant was charged in a one-count indictment with statutory rape. He was convicted after the State proved he had sexual intercourse with the prosecutrix several times within the year prior to return of the indictment. The Court regarded each act of intercourse as being a separate, completed offense, and therefore reversed the conviction because the State had not. been required to elect and rely on one of the acts as the crime alleged by the indictment. See discussion in Crocker v. State, 573 S.W.2d at 198.

In this case, the State presented evidence of numerous acts of intercourse between appellant and B.A. Each act of intercourse was, under the State’s evidence, a separate crime. Thus, under the well-settled rule discussed above, the State should have been required to elect and select the specific act upon which it was relying for conviction under the indictment, and the jury should have been instructed accordingly. Bates v. State, supra.

The State contends the September 18-27 limitation orally imposed by the trial court was a sufficient election because the acts that occurred during that time constituted a single transaction. However, each of the acts during the time span in question was, as discussed above, a separate, distinct and completed crime. Each time after B.A. and appellant engaged in sex, they went their separate ways. B.A. testified she was not coerced and could have ended the relationship at any time. Thus, as in Bates, supra, an election was required. McNutt v. State, 168 Tex.Cr.R. 27, 322 S.W.2d 622, 624 (1959), upon which the State relies, is inapplicable. The issue in that case was the admissibility of the extraneous offenses, not the requirements for an election, and the State was not asked to elect. Ground of error one is sustained.

By his second ground of error, appellant contends the trial court erred in failing to give the jury a correct limiting instruction on the various extraneous offenses about which B.A. testified. As discussed above, the State presented evidence of numerous acts of intercourse between appellant and B.A., beginning when she was 12 and ending when she was 15. When evidence of the first act was offered, the State conceded the extraneous nature of the evidence but told the Court it was tendered to show appellant’s unnatural attention toward B.A. and the probability that the act occurred. The Court admitted the evidence, observing that it would give the jury a limiting instruction. The State then presented evidence of numerous acts of intercourse.

By paragraph 4 of the charge, the trial court charged the jury on the extraneous offenses as follows:

You are further charged that if there is any evidence before you in this case tending to show that the defendant herein committed offenses other than the offense alleged against him in the indictment, you cannot consider said testimony for any purpose unless you find and believe, beyond a reasonable doubt, that the defendant committed such other offenses, if any were committed, and if you find and believe beyond a reasonable doubt from such testimony that other offenses were committed, then such testimony still cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.

The instruction, says appellant, is erroneous because it permits the jury to use specific acts of misconduct to test appellant’s credibility as a witness, instead of limiting the jury to consideration of the acts for the purpose for which they were admitted. We agree.

In cases involving sexual offenses with children, the general rule against admission of extraneous offenses is often abrogated. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972). Related offenses are admitted for the specific purpose of aiding the jury in deciding “whether the particular act relied upon by the state was committed,” Bates v. State, supra, 805 S.W.2d at 368, and for other narrow purposes. See, e.g., Garcia v. State, 573 S.W.2d 12, 16 (Tex.Crim.App.1978). When such extraneous offenses are admitted, however, the jury must be instructed on their purpose and told that it can consider them only for the limited purposes for which they are admitted. Hitchcock v. State, 612 S.W.2d 930 (Tex.Crim.App.1981); Sparks v. State, 366 S.W.2d 591, 592 (Tex. Crim.App.1963). An instruction permitting the jury to use the extraneous offenses to test the defendant’s general credibility as a witness is erroneous, Sparks v. State, supra, absent unusual circumstances not present in this case. See, e.g., Taylor v. State, 612 S.W.2d 566, 572 (Tex.Crim.App.1981).

The instruction given in this case permitted the jury to use the extraneous offenses to pass upon the weight to be given appellant’s testimony. Such an instruction is, within the context of this case, comparable to an instruction that the offenses can be used to test appellant’s credibility. As such, it violates the foregoing principles and fails to correctly limit the jury’s consideration of the evidence. On retrial, after the State elects the offense upon which it will rely for conviction, the court should limit the jury’s consideration of any admissible extraneous offenses to the specific purposes for which they are admitted. Ground of error two is sustained.

By his third ground, appellant attacks the foregoing limiting instruction as applied to a rebuttal witness called by the State. When appellant testified, he denied having sexual intercourse with B.A., stating that he had been impotent for the preceding ten years. In rebuttal, the State called a local massage parlor operator who testified that appellant had intercourse with her and with one of her employees within the preceding four and one-half years.

Appellant was not entitled to a limiting instruction on the massage parlor operator’s testimony, because it was offered to rebut a defensive theory. Ruiz v. State, 523 S.W.2d 691, 694 (Tex.Crim.App.1975). Thus, the instruction in question, insofar as it pertains to that testimony, was an error against the State about which appellant cannot complain. Id. Ground of error three is overruled.

By grounds of error four and five, appellant attacks the trial court’s venue rulings in the case. Appellant was indicted in Terry County in May of 1980. In February of 1981, the trial court granted the State’s motion for change of venue and transferred the case to Lubbock County. After a mistrial in April of 1981, appellant, by three separate motions, requested a change of venue from Lubbock County.

We must first determine whether the trial court erred in granting the State’s motion for change of venue. The State alleged that appellant was an attorney and a prominent citizen of Terry County and that a fair trial could not be obtained because of existing combinations and influ-enees in favor of appellant. At the hearing, the State presented evidence that appellant was a prominent long-time citizen of the county, had served as county attorney and had a relative who had worked in the district attorney’s office during the events in question and was the district attorney at the time of the hearing. Several State witnesses testified about the community climate and opined that the State could not get a fair trial in Terry County. At least one witness expressed the ultimate opinion that there were influences or combinations of individuals in the community who, if seated on the jury, would be unable to give both sides a fair trial. Appellant presented a number of witnesses who controverted the State’s evidence, stating that a fair and impartial trial for both sides was possible and that there were no combinations or influences in favor of appellant. At the conclusion of the hearing, the trial court granted the State’s motion.

Article 31.02, Tex.Crim.Pro.Code Ann. (Vernon 1966), establishes the State’s right to a change of venue if, as alleged by the State, it cannot receive a fair and impartial trial because of existing combinations and influences in favor of the defendant. The trial court’s decision is tested by the abuse of discretion standard. See Allen v. State, 488 S.W.2d 460, 461 (Tex.Crim.App.1972).

After reviewing the evidence, we are satisfied the trial court did not abuse its discretion by granting the State’s motion. The State presented evidence supportive of the elements it was required to prove, and the court was entitled to believe that evidence, even though it was disputed.

Appellant’s motions for change of venue, filed after a mistrial in April of 1981, were based on the contention that there was so great a prejudice against him that he could not obtain a fair trial in Lubbock County. The first motion pointed to the news media accounts of the first trial. The second motion reurged the same ground and added allegations concerning unfavorable publicity about a Lubbock lawyer who had been indicted on a charge of indecency with a child. The third motion reurged the matters stated in the first motion and added allegations concerning inflammatory and erroneous reports about appellant that were broadcast shortly before the second trial.

The trial court conducted separate hearings on each motion. At each hearing, appellant presented evidence supportive of his allegations and the State countered with evidence that he could receive a fair trial in Lubbock County. It is apparent from the evidence tendered by appellant that there was considerable publicity about the case, that some of the information conveyed by the news media was incorrect and that, on several occasions, the electronic media reported matters not in evidence, injected editorial comments into its reports and related events in a manner that created an erroneous impression.

The trial court overruled the first two motions and deferred a ruling on the third until after the voir dire examination. Appellant never obtained a ruling on the third motion.

During the voir dire examination of the jury panel, 52 of the 64 veniremen indicated they had heard something about the case. Those veniremen were questioned individually and eight were seated as jurors. Each of the eight denied having an opinion on guilt or innocence and none of the seated jurors were challenged for cause by appellant. Eleven veniremen were excused for cause, but only one was excused because of the pretrial publicity.

In this Court, appellant argues that the news reports caused such great prejudice in Lubbock County that he could not receive a fair trial. The need for a venue change because of local prejudice against a defendant is predominantly a constitutional question, Revia v. State, 649 S.W.2d 625, 626 (Tex.Crim.App.1983), because due process promises a prejudice-free jury. Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). Pretrial publicity will entitle a defendant to a venue change if he can show either (1) news media coverage so damaging that it must be presumed no unbiased jury could be selected, or (2) from the totality of circumstances, actual prejudice. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975); Barefoot v. State, 596 S.W.2d 875, 881 (Tex.Crim.App.1980), cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981); Von Byrd v. State, 569 S.W.2d 883, 890-91 (Tex.Crim.App.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2418, 60 L.Ed.2d 1073 (1979). We will separately analyze each ground, as pertinent to this case.

Pretrial publicity can be so inflammatory and prejudicial, and so widely disseminated in the community from which the jury is to be drawn, that impaneling an unbiased jury is virtually impossible. In such a situation prejudice is presumed and there is no need to show that the publicity actually contaminated the jury. Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975); Rideau v. Louisiana, 373 U.S. 723, 724-26, 83 S.Ct. 1417, 1418-19, 10 L.Ed.2d 663 (1963). Texas courts state this test as being “[wjhere outside influences [e.g., the news media] affecting the community’s climate of opinion as to a defendant are inherently suspect, the resulting probability of unfairness requires suitable procedural safeguards, such as a change of venue, to assure a fair and impartial trial.” Morris v. State, 488 S.W.2d 768, 771 (Tex.Crim.App.1973) (quoting Pamplin v. Mason, 364 F.2d 1, 5 (5th Cir.1966)); see also, e.g., McManus v. State, 591 S.W.2d 505, 517 (Tex.Crim.App.1979); Bell v. State, 582 S.W.2d 800, 811 (Tex.Crim.App.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981); Adami v. State, 524 S.W.2d 693, 703 (Tex.Crim.App.1975). Widespread publicity which, on the whole, is not inflammatory is not inherently prejudicial. United States v. Haldeman, 559 F.2d 31, 61-62 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977). Nor is prejudice presumed from inflammatory news coverage unless it is shown to have permeated the local community. Mayola v. Alabama, 623 F.2d 992, 998 (5th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1986, 68 L.Ed.2d 303 (1981). Only once, in Rideau, supra, has the U.S. Supreme Court presumed prejudice solely because of publicity; most other courts find it rarely applicable. Mayola, 623 F.2d at 997; Haldeman, 559 F.2d at 60-61.

When attempting to determine the damage done by pretrial publicity, some revealing factors are:

(1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.

Henley v. State, 576 S.W.2d 66, 71-72 (Tex.Crim.App.1978).

Certainly some facts in this case tend toward a likelihood of prejudice. All witnesses who were asked about the matter agreed that there was considerable publicity about the first trial. Various witnesses also agreed that the indictment of a Lubbock lawyer for indecency with a child would likely have some affect on the community attitude. Additionally, news media reports were not always accurate, and at times contained information which would never be presented to the jury.

On the other hand, the electronic media reports were rarely over a minute long, and the written articles were rarely displayed in a prominent position in the newspaper. Most of the publicity was about the first trial, which preceded the second by some seven months. See Sheppard v. Maxwell, 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600 (1966). More important, the predominant reason for reporting the story was to inform the public, and on the whole, the stories are accurate, factual, and neutral in tone. Haldeman, 559 F.2d at 61; also see Demouchette v. State, 591 S.W.2d 488, 490 (Tex.Crim.App.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3146, 69 L.Ed.2d 996 (1981); Bell v. State, 582 S.W.2d 800, 810 (Tex.Crim.App.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3145, 69 L.Ed.2d 995 (1981). The stories at their worst do not come close to the viciousness found in Sheppard, or the unavoidable incrimination found in Ri-deau. On balance, after reviewing the publicity preceding the second trial, there is no sense that the atmosphere was “utterly corrupted.” Murphy, 421 U.S. at 798, 95 S.Ct. at 2035. Consequently, we cannot presume that appellant was tried before a prejudiced jury.

Even if news coverage in itself does not require a presumption of prejudice, the defendant is entitled to a change of venue if he shows that the jury was actually prejudiced. United States v. Gorel, 622 F.2d 100, 103 (5th Cir.1979). Direct evidence of juror bias is not necessary, however; it is sufficient if the totality of circumstances leading up to trial show a reasonable probability of a prejudicial jury. The most revealing evidence is the ease with which the jury is selected. Murphy, 421 U.S. at 799-803, 95 S.Ct. at 2035-2038; Irvin, 366 U.S. at 721, 81 S.Ct. at 1641; Haldeman, 559 F.2d at n. 30; Barefoot, 596 S.W.2d at 880, Von Byrd, 569 S.W.2d at 890.

In this case, only 12 out of 64 potential jurors were totally uninformed about the case. In the individual voir dire, however, it is clear that the rest remembered few details. Of the eleven veniremen excused for cause, only one was released because of pretrial publicity. Although eight of the jurors chosen had heard something of the case, each testified he or she had formed no opinion about the veracity of the charges and appellant did not challenge any of them for cause.

When we review the voir dire examination, appellant’s evidence that he could not receive a fair trial and the State’s evidence to the contrary, we cannot conclude, from a totality of the circumstances, that the trial court abused its discretion by denying appellant’s motions. Ussery v. State, 651 S.W.2d 767, 772 (Tex.Crim.App.1983); Roy v. State, 608 S.W.2d 645, 648 (Tex.Crim.App.1980); Garcia v. State, 537 S.W.2d 930, 933 (Tex.Crim.App.1976). Grounds of error four and five are overruled.

By his final ground, appellant contends the trial court erred in refusing to permit him to present evidence that he had not made sexual advances toward other women, near the same age as B.A., who worked for him. Such negative evidence is admissible only if it is first established that the absence of a fact or the non-occurrence of an event would have probative value. Makarski v. State, 439 S.W.2d 340, 342 (Tex.Crim.App.1969); Hunt v. State, 160 Tex.Cr.R. 358, 271 S.W.2d 290, 291 (1954); Russell v. State, 92 Tex.Cr.R. 114, 242 S.W. 217, 218 (1922). Cf. 1 R. Ray, Texas Practice, Law of Evidence §§ 683-84 (1980). Under the record, the probative value of the tendered evidence is so slight that we cannot conclude the court erred in excluding it. See Norman v. State, 121 Tex.Cr.R. 433, 52 S.W.2d 1051, 1053 (1932). Ground of error six is overruled.

The judgment is reversed and the case is remanded to the trial court.

      . When an indictment alleges that an offense occurred "on or about” a certain date, the State may prove that the offense occurred on any date not outside the statute of limitations. Ellis v. State, 167 Tex.Cr.R. 87, 318 S.W.2d 655, 656 (1958).

      . The district attorney, at his request, was disqualified in this case and a special prosecutor was appointed.

      . The most sensational television story concerned an encounter between the prosecution and defense while the jury was retired during the first trial. According to the television account, B.A. told the prosecutors she had seen pictures of appellant with teenage prostitutes, taken on one of appellant's occasional trips to Mexico. During a recess, the lead prosecutor threatened appellant with them. Appellant denied they existed, and no such evidence was presented at either trial.


source: Caselaw Access Project

author: ESQUIVEL, Justice.

license: Public Domain

text:
    BAPTIST MEMORIAL HOSPITAL SYSTEM, Appellant, v. Sam C. BASHARA, Appellee.
    No. 04-82-00354-CV.
    Court of Appeals of Texas, San Antonio.
    May 16, 1984.
    Rehearing Denied May 31, 1984.
    Writ of Error Granted Oct. 3, 1984.

      Herbert W. Hill, San Antonio, for appellant.
    Sam C. Bashara, pro se.
    Before ESQUIVEL, REEVES and TI-JERINA, JJ.
   OPINION

ESQUIVEL, Justice.

This is an appeal from a judgment awarding attorney’s fees.

Briefly, the background facts are as follows. Jody Maxwell Tombs (Tombs) was involved in a collision with appellee, Kelly F. Axtell (Axtell). Axtell sued Tombs for injuries received in the collision. Appellee Sam C. Bashara (Bashara), an attorney, represented Axtell under a contingency contract of employment in Axtell’s personal injury suit against Tombs. While this suit was pending and before settlement was reached, all parties knew that appellant Baptist Memorial Hospital System (Baptist) filed a hospital lien for charges incurred by Axtell at Baptist for treatment of his injuries received in the collision. Through Bashara’s efforts, Axtell settled with Tombs’ automobile liability insurance carrier, Texas Farmers Insurance Company (Farmers). Farmers issued two drafts in payment of the total amount of the settlement. One draft was for $34,789.55 payable to Axtell and Bashara; the other draft was for $15,210.45 payable to Axtell, Bash-ara and Baptist. A dispute arose as to the distribution of the proceeds of the latter draft because Bashara was claiming a share thereof as his attorney’s fees, which claim Baptist refused to recognize. A lawsuit, subject of this appeal, was filed to resolve this dispute.

Baptist sued Farmers to recover its hospital lien and for its attorney’s fees. Axtell and Bashara intervened, seeking a reduction of Baptist’s lien from $15,210.45 to $2,500.00 and for judgment against Baptist for the remaining $12,610.45 and for judgment for one-third (V3) of the gross recovery by Baptist as Bashara’s attorney’s fees. Farmers answered both petitions and also filed a bill of interpleader, deposited the $15,210.45 draft in the registry of the court, requested that the court determine the rightful owner of the proceeds, and asked for its attorney’s fees. In a bench trial the court entered judgment in favor of Bashara against Baptist for $3,854.62 as his attorney’s fees on the theory of quantum meruit and ordered that this sum be retired from the $15,210.45 proceeds inter-pled by Farmers; the court further ordered that the interpled draft be endorsed by all payees thereon and thereafter be deposited for collection by the clerk of the court and that upon collection the clerk pay out the following amounts: $2,885.00 to Axtell and his wife; $750.00 to W. Burl Brock as his attorney’s fees for filing the interpleader; $3,854.62 to Bashara as his attorney’s fees for recovering the hospital charges; and $7,720.83 to Baptist. Baptist filed a motion for new trial which was overruled by the court. Baptist gave notice of appeal and in compliance with TEX.R.CIV.P. 353, gave notice of appeal limiting its appeal to only that portion of the judgment rendered against it for Bashara’s attorney’s fees. The trial court filed findings of fact and conclusions of law.

We will address the points of error, reply points and cross-points of the parties under the following categories.

ESTOPPEL BY JUDGMENT

It is undisputed that Baptist accepted $7,720.23 from the clerk of the court as its share of the distribution ordered by the judgment. Bashara contends in his reply point that when Baptist cashed the $7,720.83 check distributed to it by the clerk of the court, this was an acceptance by Baptist of the judgment which amounted to a waiver of the right of review. The general rule relied upon by Bashara is laid down in Matlow v. Cox, 25 Tex. 578 (1860) and Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950) as follows:

A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom.... The rule is based on the principle of estoppel.

Carle, 149 Tex. at 472, 234 S.W.2d at 1004.

Baptist contends that it accepted a benefit under the judgment which could not be adversely affected by its appeal and therefore did not waive its right of appeal. We agree with Baptist.

Generally, if a litigant voluntarily accepts benefits of a judgment he is es-topped from later prosecuting an appeal therefrom. Matlow, 25 Tex. at 580-81. However, this rule is subject to that exception that where a reversal of a judgment cannot possibly affect a litigant’s right to the benefit secured under the judgment an appeal may be taken. Caranas v. Jones, 437 S.W.2d 905 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r.e.). In the instant case, the only portion of the judgment before us is the question of Bashara’s attorney’s fees. Applying the aforementioned rules, we conclude a reversal in no way can affect Baptist’s right to the $7,720.23 accepted by it. To the contrary, the only result of a reversal would be that Baptist would have a right to a sum of money in addition to the $7,720.23 already received by it.

JURISDICTION

In his reply point number one Bashara contends that the trial court erred in awarding Baptist $12,325.45 because there is no evidence to support such an award. Baptist contends that this Court lacks jurisdiction to consider this point and in support of its contention argues that its appeal was limited only to Bashara’s attorney’s fees; that Bashara did not give notice of appeal, nor did he file any appeal bond to any part of the judgment. We agree with Baptist’s contention and hold that we do not have jurisdiction to consider this portion of the judgment.

It is undisputed that Baptist complied with the provisions of Rule 353 when it filed its notice of limited appeal. The record is void of any claim by Bashara, either at trial or before this Court, that the award of attorney’s fees is not a severable portion of the judgment. The purpose of Rule 353 notice requirements is to insure that appellee will have notice of appellant’s intention to limit the scope of his appeal so that appellant may perfect his appeal on any severable portion of the judgment with which he is dissatisfied. Johnson v. Downing & Wooten Construction Co., 480 S.W.2d 254, 256 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ). If, as in this appeal, an appellant has appealed from a portion of a severable judgment appellee will not be heard to complain of any matters falling wholly within the portion of the judgment not brought up for review by appellant. Dallas Electric Supply Co. v. Branum Co., 143 Tex. 366, 371, 185 S.W.2d 427, 430 (1945); Barnsdall Oil Co. v. Hubbard, 130 Tex. 476, 483, 109 S.W.2d 960, 964 (1937). Bashara not having perfected an appeal on that portion of the judgment with which he was dissatisfied, i.e., the $12,325.45 award to Baptist, cannot now be heard to complain about it on appeal. Cf. Great Eastern Life Insurance Co. v. Jones, 526 S.W.2d 268 (Tex.Civ.App.—Beaumont 1975, writ ref’d n.r.e.).

REQUESTED FINDINGS OF FACT AND CONCLUSIONS OF LAW

In its points of error five, six and eight through twelve, Baptist contends that the trial court erred in failing to make two requested conclusions of law and five requested findings of fact. We conclude that Baptist’s requested additional findings of fact and conclusions of law are adequately covered by the court’s findings and conclusions, they are contrary to such findings, and they were not material and necessary. A trial court may properly refuse requested additional findings of fact an conclusions of law where they are either already adequately covered by the court’s findings and conclusions, or were contrary to such findings, or were not material and necessary. Caranas v. Jones, 437 S.W.2d 905, 910 (Tex.Civ.App.—Dallas 1969, writ ref’d n.r.e.). Accordingly, the trial court did not err in refusing same.

ATTORNEY’S FEES

Baptist contends that the trial court erred in deducting Bashara’s attorney’s fees from the portion of the judgment awarded to it for its hospital lien charges against Farmers. Baptist argues in support of its contention that there is a conflict of interest between Axtell and Baptist precluding Axtell’s attorney, i.e., Bashara, from charging both Axtell and Baptist for the services rendered. Bashara admits in his brief that:

[Ajfter the monies were collected and the unliquidated claim reduced to liquidated form, the hospital and Mr. Axtell became antagonistic to each other. However, at no time after the interests of the parties became antagonistic did Bashara purport to represent the Baptist Memorial Hospital System or claim a fee therefrom. His entire claim is premised upon the proposition that he caused to be reduced to money the therefore unliquidated lien of the hospital. Accordingly, there was no conflict between the parties....

Bashara argues that the circumstances pending in this appeal are markedly similar to the situation sanctioned by statute under the Workers’ Compensation Statute, TEX. REV.CIV.STAT.ANN. art. 8307, § 6a, (Vernon Supp.1984), wherein the trial court is authorized to charge an insurer’s portion of a damage award against a third-party with attorney’s fees. We cannot agree with Bashara’s contention that the central issue presented by this appeal is whether, under the theory of quantum meruit, an attorney is entitled to an award for attorney’s fees against a hospital that has previously filed a hospital lien, when through the attorney’s efforts a settlement, which includes the hospital’s charges, is reached between his client and the automobile insurer and carrier of the other driver. Bashara’s pleadings and his failure to challenge the finding of fact by the court that “in determining a reasonable fee for the necessary legal services rendered by Sam C. Bashara for the benefit of the Baptist Memorial Hospital System, only the amount actually recovered, to-wit: $12,325.4-5, should be considered ...” (emphasis ours), leads us to the conclusion that Bashara’s suit for his attorney’s fees was not based on the gross originally “recovered” for Baptist. After seeking to reduce the amount of Baptist’s hospital lien from $15,210.45 to $2,500.00, Axtell and Bashara’s plea in intervention continues as follows:

IV.
A reasonable fee for the necessary legal services rendered in connection with the collection of any monies for the Plaintiff would be one-third (Vs) of the amount collected. The Intervenor, SAM C. BASHARA, prays judgment of one-third (Vs) of the gross amount of such recovery to be awarded to him from any proceeds recovered for the HOSPITAL.
WHEREFORE, PREMISES CONSIDERED, Intervenors pray that upon final hearing, the lien be reduced in accordance with the allegations contained hereinabove; that from the proceeds paid to the hospital, Intervenor, SAM C. BASHARA, be awarded one-third (½) of the gross recovery; that Intervenor, KELLY Ft AXTELL, be awarded $12,-710.45 representing the difference between the lien amount and that to which the Plaintiff is actually entitled; for their costs of court, and such other and further relief to which they may show themselves justly entitled.

We hold that there is a conflict between the interests of Axtell and Bapti§t which precludes Bashara from charging both Axtell and Baptist for services rendered. A lawyer is precluded from accepting or continuing employment when asked to represent two or more clients who may have differing interests whether such interests be conflicting, inconsistent, diverse, or otherwise discordant. Lott v. Ayres, 611 S.W.2d 473, 476 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r.e.); SUPREME COURT OF TEXAS, RULES GOVERNING THE STATE BAR OF TEXAS art. XII, § 8 (Code of Professional Responsibility) DR 5-105 (1973); STATE BAR OF TEXAS, ETHICAL CONSIDERATIONS ON CODE OF PROFESSIONAL RESPONSIBILITY EC 5-14 (1973). The court erred as a matter of law in charging the amount received by Baptist with Bashara’s attorney’s fees.

Accordingly, the judgment of the trial court is reversed and judgment is rendered that Bashara’s claim for attorney’s fees be denied.

REEVES, J., concurs in result.


author: BRADY, Justice.

text:
    Billy P. TURNER, Appellant, v. Arthur W. LUTZ, et ux., Appellees.
    No. 14126.
    Court of Appeals of Texas, Austin.
    Oct. 10, 1984.
    Rehearing Denied Feb. 20, 1985.

      David Greenfield; Blanks, Greenfield, Mewhinney & Rhodes, Temple, for appellant.
    Geoffrey A. FitzGerald, Temple, for ap-pellees.
    Before PHILLIPS, C.J., and POWERS and BRADY, JJ.
   BRADY, Justice.

This is a second appeal by Billy P. Turner from the trial court’s decree terminating his parent-child relationship with his two children. The first appeal resulted in this Court’s reversal and remand for failure of the trial court to appoint a guardian ad litem as required by statute. 654 S.W.2d 57. On a retrial of this cause, the trial court appointed a guardian ad litem, proceeded to trial, with no jury having been demanded by any party, and held that the termination of the father’s parental rights was for the best interests of the children. We reverse and render.

The parties to this cause were divorced in 1980. The mother, who is one of the appel-lees here, was named managing conservator of the two minor children, a boy, Billy, born in 1971 and a girl, Tami, born in 1979. The mother remarried appellee Arthur W. Lutz seven months after the divorce, and in July, 1981 filed this suit for termination of the parent-child relationship with the natural father and for adoption of appellant’s two children. The petition for termination and adoption alleged that appellant “has failed to support the children in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition.”

The divorce decree provided for child support payments of one hundred dollars per month for each child, commencing in March, 1980. Appellant had failed to pay payments as ordered by the court, paying only $200.00 in June of 1980, and $150.00 in July, 1980 after a contempt hearing. On October 14, 1981, the trial court terminated appellant’s parental rights, and the first appeal was perfected to this Court. We reversed and remanded this cause for a new trial because Tex.Fam.Code Ann. 11.-10(a) (Supp.1982) providing for appointment of a guardian ad litem had not been followed in the trial court.

Appellant on this appeal argues that the trial court erred in finding that the termination of the parent-child relationship between him and his two minor children was in the best interest of the children because there was either (1) no evidence or (2) insufficient evidence of such facts.

In considering “no evidence” points of error, this Court must look only to that evidence which supports the trial court’s decision and disregard all other evidence to the contrary. In reviewing an “insufficient evidence” point of error, this Court must consider and weigh all the evidence in the record to determine if the judgment was proper.

Although the Texas Family Code, Section 11.15 provides that the court’s findings shall be “based on a preponderance of the evidence,” the Texas courts have applied the “clear and convincing evidence” standard of proof in all proceedings for involuntary termination of the parent-child relationship. In the Interest of G.M., et al. Children, 596 S.W.2d 846 (Tex.1980). In that case the Court stated:

Termination is a drastic remedy and is of such weight and gravity that due process requires the state to justify termination of the parent-child relationship by proof of more substantial than a preponderance of the evidence.

In Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), the United States Supreme Court stated:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “[rjights far more precious ... than property rights.” “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.

The natural right between parents and their children is one of constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). The termination of this right is complete, final, and irrevocable. It divests forever the parent and child of all legal rights, privileges, duties, and powers between each other except for the child’s right to inherit. Our courts uniformly hold that for such reasons the proceedings below must be strictly scrutinized. In the Interest of R.L., 620 S.W.2d 249 (Tex.Civ.App.1981, no writ).

In determining questions of termination of parental rights to their children, the primary consideration is the best interest of the children. Where there is no jury, broad discretion is entrusted to the trial court, subject to the rules outlined herein. Once made, the decision of the trial court will not be disturbed unless it appears from the record that there was an abuse of discretion. Normally, as a corollary to this rule of broad discretion, it would matter not what this Court might have done under the circumstances had we heard the evidence; we would only be permitted to determine whether such broad discretion had been abused. However, under the “clear and convincing evidence” standard of proof, the scope of appellate review is expanded and this Court has more discretion in reviewing an involuntary termination case. See 12 St. Mary’s L.J. 558, Hellman v. Kincy, 632 S.W.2d 216 (Tex.App.1982, no writ).

For guidance, we look to the Texas Supreme Court decision of Holley v. Adams, 544 S.W.2d 367 (Tex.1976), in which the Court lists some nine factors to be considered by the courts in ascertaining the best interests of the children. Included among these are (A) the desires of the child, (B) emotional and physical needs of the child now and in the future, (C) emotional and physical danger to the child now and in the future, (D) parental abilities of the individuals seeking custody, (E) programs available to assist these individuals to promote the best interest of the child, (F) the plans for the child by these individuals, (G) stability of the home or proposed placement, (H) the acts or omissions of the parent which may indicate the existing parent-child relationship is not a proper one, and (I) any excuse for the acts or omissions of the parent.

With the above rules in mind, we must now proceed to scrutinize carefully and strictly this record for evidence which will support this drastic remedy. The “clear and convincing evidence” standard is defined as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” This is an intermediate standard falling between the preponderance of the evidence of civil cases and the reasonable doubt of criminal proceedings. See State v. Addington, 588 S.W.2d 569 (Tex.1979) and In The Interest of G.M., et al., Children, supra.

We find no testimony in this record from the guardian ad litem. As previously stated in Holley, supra, the Texas Supreme Court has noted several factors which are pertinent in ascertaining the best interest of the children. We have no evidence from which this Court can determine that Mr. Sheffield, the court appointed guardian ad litem, had at any time made any investigation concerning these factors. We find nothing in the record to indicate that the children had been either seen or were interviewed by the guardian ad litem.

The limited participation of the court appointed guardian ad litem suggests he failed to make an independent investigation into the Holley factors. The trial court should have considered this in its finding that termination was in the best interest of the children. No written report was made or filed by the guardian ad litem. He did not testify. A social study made in 1981 by a court appointed investigator for the purpose of the adoption petition was not introduced into evidence in the termination hearing. Although we need not determine this point, the rule in termination cases requires the social study be formally introduced and admitted into evidence before it can be considered by the trial court. We note that evidence of appellant’s alcohol problem or his misdemeanor DWI conviction did not include any showing of emotional or physical danger to his children, which in our view would be sufficient to support termination. Appellant’s statement to his son that his mother was pregnant when they married, although reprehensible, justified the trial court’s strong censure but alone would not be sufficient to support termination. The record indicates to us that the children’s mother after the divorce and her remarriage, made visitation from the children’s natural father next to impossible. Appellant was never permitted to have his children with him, but was only allowed to see them in the appellees’ home. Letters and cards addressed from him to his children were not given to his children but were returned unopened. When the mother and her new husband moved from Bell County to El Paso, their unlisted telephone number prevented the appellant from communicating with his children. Gifts sent by the father to the children were refused by the appel-lees. In one instance a doll sent by appellant to his daughter was never given to her by appellees. The appellant was cut off almost completely from his children.

In a termination case there is a presumption that the children’s best interest is served by leaving custody in the natural parents. This is of course based on the universally recognized belief that the ties of natural parents with their children are the best atmosphere for the mental, moral and emotional development of the children. Wiley v. Spratlan, supra. Appellees argue that this presumption was overcome, or that the original burden of proof on them to produce evidence that it was in the best interest of the children to terminate the parent-child relationship was shifted to appellant. This argument overlooks the “clear and convincing evidence” standard of proof. We reject it.

Actions which break the ties between parent and child can never be justified without the most solid and substantial reasons. Wray v. Lenderman, 640 S.W.2d 68 (Tex.App.1982, no writ); In the Interest of H.W.E., 613 S.W.2d 71 (Tex.Civ.App.1981, no writ). Termination of the parent-child relationship may not be based solely upon what the trial court determines to be the best interest of the child. Holley v. Adams, supra; Hellman v. Kincy, supra. While there is some evidence in this record of probative force to support the grounds for termination of the parent-child relationship, we do not feel that such evidence meets the requirement that it be “clear and convincing.”

We conclude that the judgment of the trial court was not based on sufficient clear and convincing evidence to defeat the natural right of appellant as the father of these children, being one of constitutional dimensions.

Tex.Fam.Code § 11.19 provides that an appeal from an order, decree or judgment with or without a supersedeas bond, does not suspend the order, decree or judgment unless suspension is ordered by the trial court. No such suspension order was entered by the trial court of the decree terminating appellant’s parent-child relationship with his two children. No showing was made to this Court by any party to this appeal that such orders should be suspended by us. Further, the record reveals that all the parties considered the decree of termination as being continued in effect pending appeal. Appellant had no visitation rights during these periods. Appellees moved from Bell County to El Paso, obtained an unlisted telephone number, and returned all of appellant’s mail unopened. Some of this mail included Christmas and birthday gifts which appellant had sent to his children. Appellee, Mrs. Patricia Lutz, testified in 1981,

I wrote him, when I mailed back some cards, his parental rights had been terminated and I told him there was no need for him to send gifts for them any more.

This record reveals that the attorneys and the trial court erroneously assumed that the termination decrees in the first suit and in the second trial were suspended by the appeals, as was appellant’s obligation to pay appellee child support.

Appellant’s obligation to pay child support ceased upon the first order of termination on October 15,1981. Upon reversal by this Court of that order on June 22, 1983, such obligation then was restored until September 15, 1983, when the trial court again terminated appellant’s parent-child relationship with his children, and his obligation to pay child support. Effective on the day of the entry of the mandate on this appeal, appellant’s obligation to pay child support in accordance with the decree of divorce in Cause No. 81,800 is reinstated.

Judgment of termination is reversed and rendered whereby appellant’s parental rights are restored.


author: BUTTS, Justice. ESQUIVEL, Justice,

text:
    Peggy Sue YOUNG, Relator, v. Honorable Ben MARTINEZ, Respondent.
    No. 04-84-00449-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 31, 1984.

      David Duran, Carrizo Springs, for relator.
    Jim Parish, Houston, for respondent.
    Before ESQUIVEL, BUTTS and DIAL, JJ.
   OPINION

BUTTS, Justice.

This is an original mandamus proceeding brought by Peggy Sue Young, formerly Miller, requesting a writ of mandamus directing the Honorable Ben Martinez, District Judge, to grant a writ of habeas corpus returning the minor children, Sean Christopher Miller and Daylor Ian Miller, to Young, the managing conservator.

Peggy Sue Miller and her former husband, Arthur Garret Miller, were divorced on October 14, 1980. The decree named Peggy Sue Young managing conservator of the two minor children and Arthur Garret Miller as possessory conservator. •

In July 1984, as the result of visitation privileges, the children were in the possession of their father, Arthur Garret Miller. Unable to secure their return, on July 27, 1984, Peggy Sue Young filed an application for writ of habeas coiqms to compel return of the children to her pursuant to TEX. FAM.CODE ANN. § 14.10 (Vernon Supp. 1984).

All parties were present and announced ready for the hearing on the writ on September 14, 1983, before Judge Martinez. Prior to any evidence being offered, interviews with the children were conducted in chambers with only Judge Martinez and the court reporter present. Immediately following the interviews when the proceedings began in open court, relator Young objected that she was being denied a hearing on her application for writ of habeas corpus. The court thereupon stated no hearing would be conducted and denied the relief requested by the writ of habeas corpus, commenting it found there existed a serious immediate question concerning the welfare of the children. Relator Young requested to make a bill of exceptions to show what testimony she would offer in support of the application for writ of habe-as corpus. The court denied this request and informed relator that she could do that by affidavit. At relator’s request, the court did note that no responsive pleadings had been filed on the application for the writ.

The trial court subsequently entered temporary orders appointing Arthur Garret Miller temporary managing conservator of the minor children and Peggy Sue Young temporary possessory conservator.

Under § 14.10(a), a court is required to grant a writ of habeas corpus if it finds that the relator is entitled to possession of a child by virtue of a court order. Forbes v. Wettman, 598 S.W.2d 231 (Tex.1980). The issues of best interest of the child and right of possession should not be relitigated in the habeas corpus proceeding. Schoenfield v. Onion, 647 S.W.2d 954 (Tex.1983); McElreath v. State, 545 S.W.2d 955 (Tex.1977). The right of relator to possession of a child by virtue of a court order is enforceable by mandamus. Forbes v. Wettman, 598 S.W.2d at 232; Almarez v. Williams, 673 S.W.2d 923, 926 (Tex.App.—San Antonio 1984, no writ).

It is equally true, however, that under § 14.10(c), the trial court has authority to issue a temporary order if there is a serious immediate question concerning the welfare of the child. Forbes v. Wettman, 598 S.W.2d at 232. Although the trial court has great discretion in issuing orders for the immediate protection of a child, such discretion is not limitless. See McElreath v. State, 545 S.W.2d at 958.

Even if we assume in the instant case the trial court had sufficient evidence upon which to issue a temporary order for the immediate protection of the children involved, this court is disturbed by the lack of a meaningful hearing. Of greater concern is the apparent finality of the so-called “temporary orders” entered. The very person who invoked the trial court’s jurisdiction by filing the writ of habeas corpus, Young, was completely denied the opportunity to offer any evidence or even to make a bill of exceptions when the trial court denied relief, although she stood ready and willing to do so.

Recently this court has expressed its unfaltering belief in the fundamental right of a litigant to be heard under the due process clause of the United States and Texas Constitutions. See Speed v. Guidry, 668 S.W.2d 807 (Tex.App.—San Antonio 1984, no writ); Jordan v. Jordan, 653 S.W.2d 356 (Tex.App.—San Antonio 1983, no writ). “The right to be heard assures a full hearing before a court having jurisdiction of the matter, the right to introduce evidence at a meaningful time and in a meaningful manner, and to have judicial findings based upon that evidence.” Jordan v. Jordan, 653 S.W.2d at 358. The denial of Young’s right to be heard, together with the type of orders entered in this case by the trial court, serve to make the harm suffered more egregious.

While we acknowledge the right of a trial court to enter temporary orders under § 14.10(c), such temporary orders should not have the force and effect of a final adjudication of custody. See and compare Widner v. Pixley, 439 S.W.2d 403 (Tex.Civ.App.—Beaumont 1969, no writ). Although the orders herein are labeled “temporary,” a reading of these orders reveal that they effectually and completely transferred custody to Miller without a setting of any further hearing. Young’s writ action was fully terminated, but a final adjudication of custody to Miller was effectuated under the guise of temporary orders. A later hearing on the matter was not contemplated. Thus the habeas corpus application was used to decide final custody. Under such circumstances, we find that the procedure utilized herein is not the type contemplated by § 14.10(c).

The order of the trial court denying the writ of habeas corpus is set aside and the trial court is directed to proceed to a full hearing on the merits of the writ to consider only those matters authorized under § 14.10. The orders previously entered by the trial court herein shall remain in effect pending final disposition of the writ. The writ of mandamus will issue only upon the trial court’s failure to comply with this order.

ESQUIVEL, Justice,

concurring in part and dissenting in part.

I concur in part and dissent in part with the result reached by the majority. I would reverse and render. I cannot agree that this cause should be remanded to the trial court for a hearing on the merits. A hearing on the merits has been held and it is the court’s denial of the writ of habeas corpus that is before us.

It is undisputed that the relator herein was entitled to custody under the terms of a prior order awarding managing conserva-torship to her. Further, the issue of dire emergency was not raised due to the absence of a pleading responding to relator’s application for writ of habeas corpus filed in the court below. In light of the absence of allegations of a serious immediate question concerning the welfare of the children, the grant of the writ of habeas corpus should have been automatic, immediate and ministerial.

I would, therefore, hold that relator is entitled to a writ of mandamus directing the Honorable Ben Martinez, Judge of the 293rd District Court, to grant Young’s application for writ of habeas corpus. TEX. R.CIV.P. 383.

      . All statutory references are to TEX.FAM. CODE ANN. (Vernon Supp.1984) unless otherwise indicated.


author: BUTTS, Justice.

text:
    ALLIED INDUSTRIAL INTERNATIONAL, INC., Coast Industrial Exchange, Inc., Ray’s Bit Retipping Service, Inc., Dresser Industries, Inc. and Crane Welding Supply Company, Appellants, v. Jose PLACENCIO, Appellee.
    No. 04-83-00280-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 21, 1984.
    Rehearing Denied Feb. 1, 1985.

      G. Thomas Coghlan, San Antonio, Richard C. Keene, Gray & Keene, San Antonio, for appellants.
    Russell H. McMains, Corpus Christi, Ho-mero C. Canales, Alice, Steve Hastings, Corpus Christi, for appellee.
    Before CADENA, C.J., and BUTTS and TIJERINA, JJ.
   OPINION

BUTTS, Justice.

This is a products liability action, arising when a grinding wheel flew apart, injuring plaintiff, Jose Placencio, as he worked with it. The injuries occurred when plaintiff was sharpening or grinding a 25 pound drill bit. It is the bench grinder to which the wheel was attached which is the subject product of the appeal. He with his wife, Frances, sued Allied Industrial International, Inc. and Coast Industrial Exchange, Inc., distributors of the bench grinder; Ray’s Bit Retipping Service, Inc., a retailer; Dresser Industries, manufacturer of the grinding wheel; and Crane Welding Supply Company, retailer of the wheel. Trans-america Insurance Company, having paid worker’s compensation insurance, intervened to assert subrogation rights to plaintiff’s possible recovery. Dresser Industries, Inc., Crane Welding and Ray’s Bit Retipping Service each obtained a directed verdict that plaintiff take nothing against them. The judgment is against Allied and Coast. Only Allied and Coast appeal.

In answer to special issues the jury found: (1) when Allied sold the bench grinder in question, it failed to furnish adequate warnings of the danger(s) or adequate instructions for safe use; (2) such failure rendered the bench grinder unreasonably dangerous as marketed; (3) such failure was a producing cause of the occurrence; (4) the guard on the grinder was defectively designed at the time it left the possession of Allied; (5) such defective design was a producing cause of the occurrence in question; (6) Jose Placencio should be compensated in the amount of $650,000 for his injuries resulting from the occurrence and, (7) Frances Placencio was not entitled to any damages for loss of consortium.

The judgment provides (1) that Coast and Allied are jointly and severally liable to Jose Placencio in the amount of $564,495 (the jury awarded $650,000.00); (2) that Allied fully indemnify Coast for any and all amounts owed by it to the plaintiff (Allied acknowledged an agreement to indemnify Coast); (3) that intervenor Transamerica Insurance Company recover $37,365.54 of the judgment; and (4) that Jose’s wife recover nothing in her claim for loss of consortium. We reverse and remand.

On the theory of strict liability in tort, plaintiff alleged defendants failed to provide an adequate warning on the grinder as to the actual revolutions per minute at which the grinder rotated. He alleged there were not adequate instructions for the use of the bench grinder with various grinding wheels on the market. And, further, he charged the grinder was defective in that the guard on the grinder did not comply with safety standards for such guards. While plaintiff grounded his suit also upon negligence and breach of warranty theories, the special issues addressed only the strict liability theory of the cause of action.

RESTATEMENT OF TORTS 2d § 402A (1965), adopted as governing by Texas in 1967, governs both warning and design defect cases. In a warning defect case, the plaintiff must show that the manufacturer knew or should have known of the risks at the time the product was sold and failed to provide warnings of the dangers and/or instructions for safe use. Bristol-Myers Co. v. Gonzales, 561 S.W.2d 801, 804 (Tex.1978). In a design defect case, the plaintiff must show that a facet of the design plan renders the product unreasonably dangerous as designed. Boatland, of Houston, Inc. v. Bailey, 609 S.W.2d 743, 748 (Tex.1980); Turner v. General Motors Corp., 584 S.W.2d 844, 851 (Tex.1979); Bryan v. John Bean Division of FMC, 566 F.2d 541, 547 (5th Cir.1978).

On appeal Allied and Coast do not challenge the sufficiency of the evidence regarding either a warning defect or a design defect. The evidence is undisputed that the grinder came with no instruction booklet nor any nameplate indicating the safe speed at which the grinder could operate. While an instruction card accompanied the grinding wheel, there was none with the bench grinder.

The testimony of expert witnesses, who were engineers and metallurgists, also established that the guard on the bench grinder, its purpose being to contain debris, was made of a brittle aluminum alloy of slightly more than ⅛⅛ inch thickness contrary to ANSI standards requiring that the guard be made of ductile material, a minimum of %ths inch thickness.

Plaintiff stated he received about one-half hour of instruction to operate the grinder from his employer, Mac’s Bit Service, where he had been working for six weeks before the date of the accident on April 19, 1977. After grinding on a 25 pound drill bit for about one-half hour, he took a “break.” Upon returning, he'started the bench grinder again. The grinding wheel immediately fractured into two halves. The right guard attached to the bench grinder fragmented. Fragments of the guard, along with debris from the grinding wheel, travelling explosively, struck plaintiff in the face and head, impacting on the bridge of his nose and forehead and penetrating his face shield. This caused impaired vision in plaintiff’s right eye; his frontal sinuses were fractured and crushed; his nasal bones were crushed and flattened, resulting in some loss of smell and taste. He also suffered a skull fracture. At the time of trial, he complained of resulting headaches and dizziness and constant watering of the left eye. He has been unable to return to work on a permanent basis, but has sometimes been employed setting up electrical equipment for a musical group.

Allied brings ten points of error. In points one through five, it charges that the trial court erred in failing to grant Allied’s submitted defensive issues on misuse and/or alteration, and further that it was plaintiff’s burden to show there was no misuse and/or alteration. In points six through eight, Allied argues error resulted when the trial court submitted certain special issues which assumed that Allied had, in fact, sold the bench grinder when the evidence of sale was legally and factually insufficient. In points nine and ten, Allied challenges the damages awarded to plaintiff as being grossly excessive.

Coast brings seven points of error: Coast contends, in points one through three, that the judgment against Coast cannot stand because there are no special issues finding Coast liable. In points four through six Coast challenges as factually insufficient the evidence which would support the jury finding of plaintiff’s loss of future earning capacity in the amount of $300,000. In point seven, Coast adopts all of Allied’s points of error. Plaintiff claims by crosspoint that the trial court should not have reduced the sum awarded by the jury to plaintiff for his injuries.

Allied submitted its request for special issues on January 27, 1983. The judge refused these requested special issues, endorsed them as refused, and filed them with the clerk of the court. This preserved any error for appellate review. TEX.R.CIV.P. 276. The jury returned its answers to the submitted special issues on that same day. Judgment was entered on March 23, 1983. We must, however, determine whether Allied timely filed objections to the charge of the court. On the first page of its exceptions and objections is the file mark indicating these were filed on June 8, 1983, over two months after judgment was entered. However, on the last page of the exceptions and objections, there is the stamped signature of the trial judge following this statement:

The ABOVE and FOREGOING objections and exceptions were presented to the Court by counsel above-named in timely and proper form, and except as reflected in the Charge of the Court as given to the jury, were by this Court overruled.

There is contradictory evidence on the face of the record, the file mark indicating the exceptions and objections were filed late, and the stamped signature in the back indicating timely filing. TEX.R.CIV.P. 272 provides a presumption that the party making such objections filed them timely. Therefore, we find that Allied’s objections were timely made and preserved.

We note, however, that Coast, unlike Allied, neither submitted requested special issues nor offered objections to the court’s charge. Coast cannot object in its brief on appeal to the court’s charge when it neither submitted special issues nor excepted and objected to the court’s charge. Campbell v. Davis, 563 S.W.2d 675, 678 (Tex.Civ.App.—Tyler), reversed on other grounds, 572 S.W.2d 660 (Tex.1978). Thus, as to point of error seven, Coast waived any complaint directed to special issue submission.

The matters in argument may be addressed under each of three categories: (1) was it necessary that special issues establish the distributive chain in order to support the liability of Allied and Coast?; (2) was Allied entitled to the defensive issues of misuse and/or alteration in the court’s charge?; and (3) what should be the proper award of damages, if any, to plaintiff?

DISTRIBUTIVE CHAIN

Appellant Allied objects to special issues one and four which states that Allied sold the grinder, contending this is an issue in dispute.

Special Issue No. 1
At the time Allied Industrial International, Inc. sold the grinder in question, did it fail to furnish with the product adequate warnings of the danger(s) or adequate instructions for safe use with respect to the product?
“Adequate warnings and instructions” means warnings and instructions that are given in such form that they could reasonably be expected to catch the attention of the reasonably prudent person in the circumstances of its use; and the content of the warnings and instructions must be of such a nature as to be comprehensible to the average user and to convey a fair indication of the nature and extent of the danger and how to avoid it to the mind of a reasonably prudent person.
Answer “Yes” or “No.”
Answer: Yes
SPECIAL ISSUE NO. 4
Was the guard on the grinder defectively designed at the time it left the possession of Allied Industrial International, Inc.?
A “defectively designed” product is a product that is unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use.
Answer: “Yes” or “No.”
ANSWER: Yes

Harry W. Steere, general manager of Allied, testified that “Chicago Heavy Duty” is the logo on Allied’s products, and that Coast was one of Allied’s “big” customers. However, as a result of a move, Allied lost the records of the sale of this particular grinder to Coast. Carl Stronberg, vice-president and general manager of Coast, testified that he bought the grinder from Allied; he knew this because Allied’s logo “Chicago Heavy Duty” appeared on the grinder; however, he could not designate the particular grinder because there was no serial number. Stronberg also testified that he sold two grinders to Ray’s Bit Service; the invoice of that sale was admitted into evidence without objection. Ray testified that he bought the subject grinder for his father-in-law who owned Mac’s Bits. M.C. McKee, the owner of Mac’s Bit Service, testified that he obtained the grinder from Ray.

We find the evidence here conclusively establishes the distributive chain from Allied to Coast to Ray’s Bit Service to Mac’s Bits. Compare Coca-Cola Bottling Co. of Lubbock v. Fillmore, 453 S.W.2d 239, 241 (Tex.Civ.App.—Amarillo 1970, no writ) (link in distributive chain from bottler to filling station missing).

We note the new Texas rule of evidence 902(7), not in effect at the time of trial, provides that the trademark itself connects the product to the manufacturer. Applying the reasoning of Coca-Cola Bottling of Lubbock, supra, we find there is no missing link in the distributive chain. A special issue should not be submitted when evidence is conclusively established or when it is a matter of legal deduction from undisputed facts. Lumbermen’s Insurance Corp. v. Jones, 311 S.W.2d 873, 875 (Tex.Civ.App.—Fort Worth 1958, writ ref’d n.r.e.) (where stipulation, no issue goes to the jury); Yancey v. Olvera, 518 S.W.2d 935, 942 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.) (where evidence established as a matter of law, submission of special issue not required).

Allied’s points six through eight are overruled. The record also discloses a stipulation of the parties that Coast is part of the distributive chain. Thus, no special issue is necessary finding Allied or Coast to be part of the distributive chain.

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

Coast further argues that because no issues address its liability, the judgment against it must fall. We do not agree. The evidence shows the alleged defects existed when Allied placed the product in the stream of commerce and nothing is shown to demonstrate the alleged defects were not there when Coast sold the product.

Texas courts follow section 402A of the Restatement of Torts 2d and rule that strict liability in tort lies against the distributor as well as the manufacturer of defective goods. Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975). The evidence is undisputed that Coast was a distributor. If there had been affirmative evidence that Coast was not a part of the distributive chain as a seller, the trial court should have submitted an issue on the disputed fact. There was, however, a stipulation that Coast was part of that chain. TEX.R. CIV.P. 277 and 279 place no duty on the trial court to submit an issue on an undisputed fact. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971). Further, Coast did not request any special issue. We overrule Coast’s points one through three.

DEFENSIVE ISSUES

Appellant requested fifteen special issues on misuse and/or alteration and negligence as well as definitions on alteration, misuse and negligence. The trial court refused all requested defensive issues and definitions.

In its recent opinion, Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 434 (Tex.1984), the Supreme Court of Texas replaced unforeseeable misuse as a defense with the doctrine of comparative fault, ruling, however, that the doctrine of comparative fault should apply prospectively to govern product cases tried after July 13, 1983. Since the present trial began on January 24,1983, the defense of unforeseeable misuse rather than comparative fault was a viable one.

(7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.

In a landmark ease, General Motors Corp. v. Hopkins, 548 S.W.2d 344, 352 (Tex.1977), the Texas Supreme Court treats alteration as a kind of misuse. See Sales, Assumption of the Risk and Misuse in Strict Tort Liability — Prelude to Comparative Fault, 11 TEX.TECH.LAW REV. 729, 749-53 (1980). In Hopkins, the court said that the alteration of the carburetor was in essence a misuse of that carburetor, but there was no burden on the plaintiff to show the product involved in the accident-producing event was not subjected to any substantial alteration in its design after leaving the hands of the product supplier. Although some other jurisdictions place this burden on a plaintiff, Texas does not. Allied’s point of error three concerning plaintiffs burden to show no misuse or alteration is therefore overruled.

MISUSE

The defense of misuse may be asserted after a product is found to be unreasonably dangerous, and the defect is found to be a producing cause of the injury.

According to Hopkins, supra, there are three elements, all of which are necessary to establish the misuse defense: (1) the defendant must establish that the particular misuse of the product was neither intended nor reasonably foreseeable from the manufacturer’s or supplier’s perspective; (2) the defendant must establish that the product user could reasonably foresee an injury occurring as a result of the misuse; and (3) the misuse was a producing cause of the injury. If a jury finds these elements are present, it must then determine the percentage by which these concurring causes proximately contributed to the accident and resulting injury. Id. at 351. Sales, Comparative Causation in Strict Tort Liability: One Perspective of Duncan v. Cessna Aircraft Corp., 3

STATE BAR LITIGATION SECTION REPORT 4 (1984).

Allied pled the affirmative defense of misuse and sought to establish during the course of the trial that the grinder had been misused in a number of ways: (1) the employer had cut a slot in the right guard; (2) the work rest and the eye shield had been removed; (3) the flanges (the purpose being to grip the side of the grinding wheel and provide for an even distribution of pressure) were not clean and flat; (4) plaintiff jammed the drill bit between the grinding wheel and guard; (5) plaintiff had ground on the side of the wheel; and (6) plaintiff had run the grinder without checking the r.p.m.’s.

As to alterations, McKee, plaintiff’s employer, testified that he was responsible for removing the eye shield and the work rest and that he cut the slot in the guard. In Blackwell Burner Co. v. Cerda, 644 S.W.2d 512, 520 (Tex.App.—San Antonio, 1982, writ ref’d n.r.e.), this Court quoted from the Hopkins decision, 548 S.W.2d at 351: “We reject misuse as a defense where the product is dangerous for its foreseeable use and the danger is a producing cause of the injury of a bystander or a user who has not himself made some unforeseeable use of the product.”

The misuse defense, at the time of this trial, could nevertheless be applicable even though a supplier was liable for injuries resulting after it placed a dangerous product into the stream of commerce. Products liability was not meant to take the place of insurance, and the supplier should not be required to reimburse the plaintiff for that portion of damages caused by a use of the product that the supplier would not have foreseen and that plaintiff should have foreseen would create or increase the attendant danger. Reduction of the plaintiff’s recovery should be ordered where the misuse is a concurring proximate cause of the damaging event. General Motors Corp. v. Hopkins, supra, 548 S.W.2d at 351.

Subsequent to the accident, tests were conducted which indicated the grinding wheel broke as plaintiff operated the grinder at 3650 r.p.m.’s; however, the instructions accompanying the grinding wheel specified the wheel should be run at no more than 2480 r.p.m.’s. It is undisputed that no instructions accompanied the grinder nor was any nameplate attached to the grinder itself to indicate the maximum speed that an attached grinding wheel should be capable of rotating. Since neither plaintiff nor his employer received that kind of warning, such a marketing defect alone would suffice to make this product defective. Blackwell Burner Co., supra, at 516. Compare Lopez v. Aro Corp., 584 S.W.2d 333, 336 (Tex.Civ.App.—San Antonio 1979, writ ref’d n.r.e.) (instruction booklet without warning on side of grinder sufficient to warn user).

Allied presented evidence through its expert, Dr. Billy H. Amsted, a consulting engineer, that the flanges on the grinding wheel were not clean, explaining that the excessive buildup interfered with the function of the flanges to distribute the weight uniformly over a greater part of the wheel. A buildup of any kind would cause undue stress on the wheel which was attached to the grinder. This was a violation of Underwriters, OSHA, and ANSI standards. In calculating the torque, Amsted said if twenty pounds were placed on the wheel at four and one-half inches out, the torque (force) would be 450 pounds. This would be equivalent to putting 450 pounds on one side of the wheel when there is dirt buildup on the wheel. This is the kind of stress which would cause the wheel to break in half (which it did). Excess buildup on the wheel results in uneven load distribution.

There was testimony from other experts indicating that when a grinding wheel breaks from overspeed, it normally breaks into many pieces. It was stated that when a wheel breaks in half, as in this case, that it may not be from overspeed alone. There was testimony from Amsted that he found evidence of “jamming” of the bit between the grinding wheel and the guard. He could not say whether the breaking of the grinding wheel was caused by jamming or dirty flanges, but he based his conclusions that either could be a cause upon the type of fracture (in half) of the wheel. Also he stated the removal of the tool (work) rest was a substantial alteration, stating if it was impossible to use the work rest, “they” were using the wrong kind of grinder. This last might be a possible misuse by plaintiff, not because of his employer’s initial removal of the work rest, but because plaintiff’s demonstrated necessity to work without the work rest, there being no room for both the drill bit and the work rest, indicated the wrong kind of grinder was used with this particular grinding wheel and 25 pound drill bit. He further stated there was some evidence that plaintiff had ground on the outside of the wheel, and that may have been a cause of the damaging event. Another expert testified there was some evidence of “improper mounting, premounting damage, and excessive side pressure” by the plaintiff.

While it is accepted that if the injury resulting from a foreseeable misuse of the product is one which an adequate warning would likely prevent, then such misuse is not a defense in an action based on the failure to give such a warning, Bituminous Casualty Corp. v. Black & Decker Manufacturing Co., 518 S.W.2d 868, 875 (Tex.Civ.App.—Dallas 1974, writ ref’d n.r.e.) (Citations omitted), in the present case there was some evidence that other possible unforeseeable concurring producing causes existed. Thus the question arises as to concurring producing causes and their unforeseeability. The same rationale applies as to the proven design defect in the grinder guard. We emphasize that the grinding wheel as used and attached to the grinder was a necessary and integral part of the working unit. Without the wheel in operation to grind the drill bit, the damaging event would not have occurred. Therefore, viewing the grinder as if it existed and operated alone does not encompass the whole working unit.

Even if it is argued the evidence is factually insufficient to support an affirmative answer to an opponent’s issue, this furnishes no basis for refusal to submit the issue. Clarostat Manufacturing, Inc. v. Alcor Aviation, Inc., 544 S.W.2d 788, 791 (Tex.Civ.App.—San Antonio 1976, writ ref d n.r.e.). Only when there is no evidence to support it may the trial court decline to submit a relevant issue. Garza v. Alviar, 395 S.W.2d 821, 824 (Tex.1965). There is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact. Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.1974); accord, Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

Having pled the defense of misuse, Allied presented evidence of possible misuse of the grinder by plaintiff and tendered issues and instructions on misuse, as well as objections to the charge. A trial court is required to submit all material issues raised by the pleadings and evidence. TEX.R.CIV.P. 277, 279. We hold Amsted’s and other experts’ testimony was more than a scintilla of evidence because it furnished a reasonable basis for minds to differ as to whether there was misuse by the plaintiff which gave rise to concurring producing causes. We find the trial court should have submitted to the jury the special issues directed to that inquiry. Point of error one is sustained. In view of our disposition of the first point of error, we have no need to address points two through five regarding jury issues not submitted.

DAMAGES

The trial court submitted this issue: (The listed sums of money were written in by the jury):

SPECIAL ISSUE NO. 6
Do you find from a preponderance of the evidence what sum of money, if any, if paid now in cash, would fairly and reasonably compensate Jose Placencio for his injuries, if any, resulting from the occurrence in question.
Consider the following elements of damage, if any, and none other:
(a) Physical pain and mental anguish in the past. $50,000.00
(b) Physical pain and mental anguish that, in reasonable probability, he will suffer in the future. $50,000.00
(c) Loss of earnings in the past. $50,-
000.00
(d) Loss of earnings in the future. $300,000.00
(e) Disfigurement in the past.
(f) Disfigurement in the future.
(g) Physical impairment in the past. $50,000.00
(h) Physical impairment that, in reasonable probability, he will suffer in the future. $50,000.00
(i) Medical expenses in the past. $40,-000.00
(j) Medical expenses that, in reasonable probability, he will incur in the future. $60,000.00
You are to consider each element of damage separately, so as not to include damages for one element in any other element.
Answer in dollars and cents, if any.
ANSWER: $650,000.00

Allied filed a motion for judgment n.o.v. and Coast, a motion to reform the judgment based on jury answers written beside each damage element that was submitted. However, it is plain the jury found that the plaintiff ultimately incurred $650,000 in damages. The trial judge rendered a judgment in the reduced amount of $564,495. It is obvious the trial judge reduced the award for past medical expenses from $40,-000 to the stipulated figure, $12,995 and reduced the award for purported future medical expenses by a total of $85,505 leaving the judgment total of $564,495.

Coast and Allied both argue the evidence is legally and factually insufficient to justify the amount awarded to plaintiff, even in the reduced amount of the judgment. Plaintiff, on the other hand, argues that the full jury verdict should be reinstated.

The powers of a trial court and a court of appeals to determine the propriety of a remittitur are governed by the same standard. Highlands Insurance Co. v. Baugh, 605 S.W.2d 314, 319 (Tex.Civ.App.—Eastland 1980, no writ).

TEX.R.CIV.P. 440 governs re-mittitur by a court of appeals. If the court is of the opinion that the verdict and judgment of the trial court is excessive, it may suggest remittitur of the excess and if remittitur is not filed, the appellate court may reverse the trial court’s judgment. Missouri-Kansas-Texas Railroad Co. v. Pierce, 519 S.W.2d 157, 159 (Tex.Civ.App.—Austin 1975, writ ref’d n.r.e.). In determining whether a verdict is excessive this Court must consider the evidence in the light most favorable to the award. Green v. Rudsenske, 320 S.W.2d 228, 235 (Tex.Civ.App.—San Antonio 1959, no writ). An appellate court will not disturb a jury award on the grounds of excessiveness if there is any evidence to sustain the award. J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728, 743 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.).

We observe that it is only the ultimate figure of damages that this court may consider, not the unsolicited write-ins of the jury. TEX.R.CIV.P. 300, 301. We have examined the record and find that the damages awarded to plaintiff in view of the injuries incurred are not excessive. We therefore do not suggest remittitur, pursuant to TEX.R.CIV.P. 440.

The trial court could also have ordered remittitur upon penalty of a new trial if it thought the sum total excessive. TEX.R.CIV.P. 315. The trial court chose to render judgment in a reduced amount, substituting its findings for that of the jury, and establishing the written-in itemized amounts as part of the verdict of the jury. A judge may not disregard answers to material issues and substitute findings for that of the jury. Highlands Insurance Co., supra, at 319. 4 R. McDONALD, supra, at § 17.28. We therefore overrule Allied’s points nine and ten and Coast’s points four through six. We would grant plaintiff’s cross-point, reinstating damages in the amount of $650,000 if the cause were not otherwise reversed.

Accordingly, the judgment of the trial court is reversed and the case is remanded for trial.

      . American National Standards Institute sets standards for grinding wheels.

      . Rule 902. Self-Authentication.

      . We do not address the question of alteration by the employer in this case. See Herrera v. FMC Corp., 672 S.W.2d 5, 8 (Tex.App.—Houston [14th Dist.] 1984, no writ). We recognize that in a case where misuse is a defense and the employer is a worker’s compensation subscriber, the employer’s conduct may not be considered to reduce the percentage of a defendant’s liability.


author: CADENA, Chief Justice.

text:
    Orlando David HINOJOSA, Appellant, v. STATE of Texas, Appellee.
    No. 04-83-00416-CR.
    Court of Appeals of Texas, San Antonio.
    Dec. 31, 1984.

      Michael Ugarte, San Antonio, Jose Pe-rales, San Antonio, for appellant.
    Sam Millsap, Jr., Dist. Atty., Mario Bor-dini, Margaret Embry, Asst. Dist. Attys., San Antonio, for appellee.
    Before CADENA, C.J., and BUTTS and DIAL, JJ.
   OPINION

CADENA, Chief Justice.

Appellant pleaded guilty to a charge of burglary of a habitation, made a judicial confession and was sentenced to five years’ imprisonment. On this appeal he contends that the trial court erred in denying his motion to dismiss the indictment because of failure of the prosecution to comply with the provisions of the Speedy Trial Act, TEX.CODE CRIM.PROC.ANN. arts. 32A.01, 32A.02 (Vernon Supp.1984).

On September 29, 1982, officers, executing a search warrant at an apartment occupied by Angie Hessbrook, discovered appellant hiding in the attic space above a closet. His attempt to escape was unsuccessful, and he was handcuffed and told to sit on a sofa while the officers conducted the search of the apartment. When the search was completed, appellant was taken to police headquarters and questioned for about 45 minutes. He was then released. No charges were filed against him and he was not required to furnish bail or to execute a personal bond. Appellant remained handcuffed from the time he was discovered in the attic until the questioning terminated and he was unconditionally released some four hours later.

A complaint charging appellant with burglary of a habitation was filed on October 29, 1982. Appellant was indicted on March 23, 1983, and the State first announced ready on March 28, 1983. Appellant’s speedy trial motion was timely filed and he preserved his right to appeal from the denial of that motion despite his subsequent plea of guilty.

Under the statute, a defendant accused of a felony is entitled to have the indictment set aside if the State is not ready for trial within 120 days of the commencement of [the] criminal action. Art. 32A.02 § 1(1). According to § 2 of art. 32A.02,

A criminal action commences for the purposes of this article when an indictment, information, or complaint against the defendant is filed in court, unless prior to the filing the defendant is either detained in custody or released on bail or personal bond to answer for the same offense or any other offense arising out of the same transaction, in which event the criminal action commences when he is arrested.

Appellant contends that the criminal action commenced on September 29,1982, the day he was arrested. However, since he was unconditionally released and no charges were filed against him, under the holding in Lyles v. State, 653 S.W.2d 775, 776 (Tex.Crim.App.1983), the criminal action did not “commence” on the date of such arrest.

The judgment of the trial court is affirmed.


author: TIJERINA, Justice.

text:
    UVALDE COUNTRY CLUB, Appellant, v. MARTIN LINEN SUPPLY COMPANY, INC., Appellee.
    No. 04-83-00451-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 31, 1984.
    Rehearing Denied Jan. 29, 1985.

      George H. Spencer, Jr., Clemens, Spencer, Welmaker & Finck, San Antonio, for appellant.
    R. Laurence Macon, Cox & Smith, San Antonio, for appellee.
    Before ESQUIVEL, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

This is a direct appeal by writ of error from a default judgment. Appellee filed suit to collect on a contract for services rendered and appellant, although served with citation, failed to file an answer or enter an appearance. Default judgment was subsequently rendered.

Appellant’s first assertion of error alleges that the record does not show that the person served with citation was authorized to receive service or that he was connected with appellant. Appellee’s original petition, alleged that appellant could be served by serving its registered agent, Henry Bunting, Jr., 137 West Nopal Street in Uvalde, Uvalde County, Texas. The citation was directed to Uvalde Country Club (appellant), by serving its registered agent, Henry Bunting, 137 West Nopal Street, Uvalde, Texas. The sheriff’s return certifies that service was executed September 29, 1981, at 10:00 a.m. by delivering to Henry Bunting, in person, a copy of the citation together with a copy of the original petition.

To invoke the jurisdiction of the appellate court, a writ of error must be filed within six months after the final judgment. TEX.REV.CIV.STAT.ANN. art. 2255 (Vernon 1971). Additionally, the party seeking writ of error relief must not have participated in the trial of the case. TEX.REV.CIV.STAT.ANN. art. 2249a (Vernon Supp.1984). We will address the third requirement, i.e., that the invalidity of the judgment must appear on the face of the record. See Garcia v. Garcia, 618 S.W.2d 117, 118 (Tex.Civ.App.—Corpus Christi 1981, no writ). The rules of civil procedure relating to the issuance of service and return of citation are mandatory; failure to strictly comply therewith will render invalid the service of process. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). Appellant argues, and correctly so, that the central issue for our determination is whether the names “Henry Bunting, Jr.,” the person alleged in the original pleading as the registered agent for service, and “Henry Bunting,” the person actually served, are separate and distinct, for writ of error review purposes.

Early legal authorities concluded that “Jr.” is not an essential addition to or a part of a name. Dolton v. Cain, 81 U.S. (14 Wall.) 472, 472 n., 20 L.Ed. 830 (1872); Keene v. Meade, 28 U.S. (3 Pet.) 1, 1 n., 7 L.Ed. 581 (1830). This rationale formed the basis of the decision in the sole Texas case cited by appellee, Clark v. Groce, 16 Tex.Civ.App. 453, 41 S.W. 668, 669 (Tex.Civ. App.1897, no writ), where the court disregarded the variance between the names of Jarard E. Groce, Jr. and Jarard E. Groce, saying: “The addition, ‘Jr.,’ is no part of the name.” Furthermore, the addition or omission of the suffixes “Sr.” or “Jr.” is immaterial in civil and criminal proceedings. 40 TEX.JUR.2d Names § 10 (1959). Generally, if the intended, defendant is sued under the wrong name, a judgment will be valid after service on the defendant under the misnomer, even though he has a name that is different. Callan v. Bartlett Electric Cooperative, 423 S.W.2d 149, 155 (Tex.Civ.App.—Austin 1968, writ ref’d n.r. e.). This rule does not apply, however, when another entirely distinct person from the one sued is served with process. Nail v. Wichita Falls & Southern Railroad Co., 294 S.W.2d 431, 433 (Tex.Civ.App.—Fort Worth 1956, no writ); 44 TEX.JUR.2d Parties § 80 (1963). Therefore, Texas case law in effect provides that a misnomer of a defendant does not render void a judgment based on personal service, even one by default, provided the intention to sue the defendant actually served with citation is so evident from the pleadings and process that the defendant could not have been misled. Nail v. Gene Biddle Feed Co., 347 S.W.2d 830, 832 (Tex.Civ.App.—Beaumont 1961, no writ); 2 R. McDONALD, TEXAS CIVIL PRACTICE § 6.04.1 (1982). Most recently, in Northwest Sign Co. v. Jack H. Brown & Co., 28 Tex.S.Ct.J. 110 (Nov. 21, 1984), where the defendant was sued under its assumed name of Signgraphics and service of process was obtained on the registered agent, Jack H. Brown, the supreme court held that the defendant had fair and adequate notice of the lawsuit. In effect, the supreme court approved service on the registered agent. In the instant case, it is obvious from the pleadings and the citation that appellee did not sue the wrong party. Appellant was personally served with citation and the misnomer, if any, is immaterial. He was not misled; he had fair and adequate notice. The first point of error is overruled.

Appellant’s assertion, that the service of process was rendered invalid because the sheriff’s return failed to recite that the deputy sheriff who served the citation was not “interested in the outcome of a suit,” is ’ without merit. TEX.R.CIV.P. 103 provides in pertinent part, viz:

All process may be served by the sheriff or any constable of any county in which the party to be served is found, or, if by mail, either of the county in which the case is pending or of the county in which the party to be served is found; provided that no officer who is a party to or interested in the outcome of a suit shall serve any process therein_

The procedure for the service of citation is found in TEX.R.CIV.P. 106, providing in relevant part, viz:

(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any officer authorized by Rule 103 by
(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or
(2) mailing to the defendant by registered or certified mail, with delivery restricted to addressee only, return receipt requested, a true copy of the citation with a true copy of the petition attached thereto.
(b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under (a)(1) or (a)(2) at the location named in such affidavit but has not been successful, the court may authorize service
(1) by an officer or by any disinterested adult named in the court’s order. ...

We interpret the provision of Rule 103, supra, at issue, to be a designated disqualification and not a mandatory requirement and a failure to include it is not a defect that is apparent from the face of the record. Cf. Texas Inspection Services, Inc. v. Melville, 616 S.W.2d 253, 254 (Tex.Civ.App.—Houston [1st Dist.] 1981, no writ). Rule 103, entitled “Officer Who May Serve,” specifically names the sheriff or any constable as the officer authorized to serve the process. Rule 106 directs that the citation shall be served by any officer authorized by Rule 103, unless the citation or an order of the court provides for alternative service or substituted service. Texas courts have recognized the rule that service of process within its territorial limits is effective to gain jurisdiction of the person of parties defendant. Lawler v. Neathery, 509 S.W.2d 453, 456 (Tex.Civ.App.—Amarillo 1974, no writ); Oates v. Blackburn, 430 S.W.2d 400, 403 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). In this case the record, including the citation and the sheriff’s return, affirmatively shows strict compliance with all necessary requisites for issuance, service and return of process. The citation was directed to appellant by serving its registered agent, Henry Bunting, at 137 West Nopal Street in Uvalde, Texas. TEX.R. CIV.P. 107 requires the return of citation to state when the citation was served and the manner of service, and to be signed by the officer executing the citation. The sheriff’s return herein certifies that the citation was served October 7, 1981, by delivering to Henry Bunting in person a copy of the citation and a copy of the petition; it is signed by the deputy sheriff executing the service of process. Thus, we conclude that the failure of the citation to negate that the officer was “interested in the outcome of a suit” does not invalidate the service of process. The second point of error is overruled.

In its final point, appellant urges that the trial court erred in holding that the citations supported the default judgment because appellee used “from” instead of “after” in commanding appearance “20 days from the date of service.” TEX.R.CIV.P. 101 mandates that:

[t]he citation shall be styled “The State of Texas” and shall be directed to the defendant and shall command him to appear by filing a written answer to the plaintiffs petition at or before 10:00 a.m. of the Monday next after the expiration of 20 days after the date of service thereof.... (Emphasis ours)

However, Rule 101 does not require that the precise language of the rule be used, except in the “State of Texas” style. Moreover, the Rules of Civil Procedure are to be liberally construed. TEX.R.CIV.P. 1.

“From” and “after” are synonymous when used in the context of a time computation, as in the citations complained of. See, e.g., Home Insurance Co. v. Rose, 152 Tex. 222, 255 S.W.2d 861, 862 (1953); McGaughy v. City of Richardson, 599 S.W.2d 113, 115 (Tex.Civ.App.—Dallas 1980, writ ref’d n.r.e.); Pitcock v. Johns, 326 S.W.2d 563, 565 (Tex.Civ.App.—Austin 1959, writ ref’d). Therefore, the use of “from” instead of “after” did not invalidate the citations. Appellant s third point of error is overruled.

The judgment of the trial court is affirmed.