author: WALLACE, Justice.

text:
    INTERNATIONAL ARMAMENT CORPORATION, et al., Petitioners, v. Clifford Wayne KING, Respondent.
    No. C-3343.
    Supreme Court of Texas.
    Feb. 20, 1985.
    Rehearing Denied April 10, 1985.

      Hutcheson & Grundy, Darrell E. Reed, Jr., Houston, Scott, Douglass & Keeton, W. Page Keeton, Austin, for petitioners.
    Longley & Maxwell, Joe K. Longley, Austin, for respondent.
   WALLACE, Justice.

This is a products liability case. Clifford Wayne King was injured when his “Star Gauge” shotgun misfired. The shotgun was manufactured by Armas Erbi S. Coop. (Armas Erbi), a Spanish corporation, imported by Petitioner, International Armament Corporation (Interarms), and sold to King by Oshman’s Sporting Goods Company, Texas, Inc., (Oshman’s).

Pursuant to a jury verdict, the trial court rendered judgment for King which awarded him $234,053.60 actual damages against Oshman’s and Interarms, $1,500,000 punitive damages against Interarms, $4,400,000 punitive damages against Armas Erbi, and attorneys’ fees. Armas Erbi made no appearance. The court of appeals affirmed the judgment of the trial court. 674 S.W.2d 413. Interarms and Oshman’s do not contest the award of actual damages; however, they do contest the award of punitive damages and attorneys’ fees.

The pivotal issue before us is whether there is any evidence to support the award of punitive damages against Interarms. We hold there is, and therefore affirm the judgment of the court of appeals.

The gun in question is a side by side double barrel shotgun which King purchased from Oshman’s in September, 1979. On November 24, 1979, King and some of his relatives were target shooting on a relative’s farm. The shotgun malfunctioned and King’s stepfather took the weapon to inspect it. When his stepfather completed the inspection of the shotgun and closed the receiver, the shotgun fired, striking King in- the leg. At all times during the inspection process the weapon’s safety was engaged. It is undisputed that the shotgun fired while the safety was engaged and without anyone touching the triggers.

The shotgun in question utilized the An-son-Deli automatic safety design. This safety operates only on the trigger, as opposed to operating on the hammer and firing pin. In other words, when the safety is engaged the trigger cannot be moved; however, the safety does not prevent the hammer from striking the firing pin which causes the gun to fire. This Anson-Deli type automatic safety is a common design and has been widely used for over 100 years.

The jury findings pertinent to the punitive damages issue in this case are:

(1) Interarms failed to give an adequate warning that the gun could fire while the “safety” was engaged but while the triggers were not engaged;
(2) the failure to warn rendered the shotgun unreasonably dangerous;
(3) the failure to warn was an unconscionable action;
(4) Interarms knowingly engaged in such unconscionable action;
(5) the failure to warn constituted reckless, wanton and grossly negligent conduct;
(6) Interarms knowingly engaged in such conduct;
(7) such conduct was a proximate cause of King’s injuries.

In reviewing a no evidence point we consider only the evidence and inferences tending to support the jury verdict and disregard all evidence to the contrary. If there is any evidence of probative value to support the jury verdict we must affirm. Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965). The judgment of the court of appeals can be affirmed only upon a finding that there is some evidence of probative value that Interarms’ failure to warn was a producing cause of King’s injury and, further, that such failure constituted reckless, wanton and grossly negligent conduct.

This Court held in Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922, (Tex. 1981):

The essence of gross negligence is not the neglect, which must, of course, exist. What lifts ordinary negligence into gross negligence is the mental state of the defendant; that is what justifies the penal nature of the imposition of exemplary damages. The plaintiff must show that the defendant was consciously, i.e., knowingly, indifferent to his rights, welfare and safety. In other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrated that he didn’t care. Such conduct can be active or passive in nature. ... All actions or circumstances indicating a state of mind amounting to a conscious indifference must be examined in deciding if there is some evidence of gross negligence.

The relevant evidence is primarily derived from the testimony of four expert witnesses. The first expert called by Inte-rarms was Russ J. Moure, its Director of Engineering. Moure supervised the examination of shotguns as they were received by Interarms. He was extremely well-informed about guns and gunsmithing, having been in the gun business for 35 years. In addition, he was quite familiar with the intricate workings of firearms in general and shotguns in particular. Moure performed a complete inspection of the first two shotguns received from Armas Erbi. The inspection included a close examination of both the internal mechanism of the weapons and of the external “cosmetic” appearance. For these reasons, Moure’s testimony is the most probative and his testimony will be summarized first.

Moure testified that he knew the “Star Gauge” shotgun, as designed, could fire if the trigger was not touched, even with the safety engaged, if the sear and the sear notch on the hammer fit together poorly. He added that this phenomenon would occur if the breech were closed abruptly.

Moure agreed that the shotguns which he inspected were not assembled with a high degree of care and were not finished with meticulous care; the internal parts of the shotgun, such as the sears, hammers and locking levers, were not completely machined but were partially handfiled; and the moving parts were not completely polished for smooth operation. Moure also stated that the firing pins on the first shotguns that he inspected measured .068 inches although the recommended standard was only .050 to .055 inches. Furthermore, after the inspection of the first two shotguns, Moure wrote an intercompany memorandum which revealed that the actions of the guns were “extremely hard to open” and required considerable manipulation to make them open or close. He noted it would have been more desirable if the action of the gun were softer and more precise. Moure also added there were substantial numbers of “cosmetic” defects. Such defects included rust and corrosion, scarred stocks and improper fit between stock and metal.

There was evidence that Interarms visually inspected each shotgun received and that it rejected those with a poor external appearance. Of 700 shotguns received by Interarms in the first two shipments, 150 were rejected for “cosmetic” defects because they would not be marketable. Of the remaining 550, only two of every 25 were internally inspected for safety and mechanical defects. There was also testimony that Interarms ceased importing the shotguns in 1975 due to a lack of quality control at the Armas Erbi factory.

Moure stated he was not aware of any safety defects in the shotguns, but he admitted that Interarms itself had no formal quality control procedure for the guns that it imported; that no written reports were prepared after the internal inspection of the guns; and, that there is no record of whether Interarms inspected King’s shotgun. Interarms knew that the shotguns would be sold to and used by members of the general public who possess varying skills and knowledge regarding shotguns. Moure testified that some defects were found in every shotgun which underwent a documented inspection.

The other three expert witnesses are Charles Tedford, Charles E. Hudak and John Milton Vance, Ph.D. Tedford was called by King and qualified as an expert. He is a gunsmith who, at the time of trial, had approximately ten years experience in the field. Vance, a professor of engineering at Texas A & M University, whose doctorate degree is in the field of mechanical engineering, was also called by King and qualified as an expert. Hudak is a chemist with more than 20 years experience as a gunsmith. The relevant testimony of Tedford, Hudak and Vance will be summarized in addition to Moure’s.

King’s first expert witness, Charles Ted-ford, testified that any gunsmith could have quickly disassembled the shotgun in question and easily observed that the sear and hammer did not fit together properly. It was his opinion that importers should inspect each gun to determine if it is safe, and if they' do not inspect the internal workings of the gun, they should issue a written warning. He testified that another manufacturer, the Reuger Corporation, stamps a warning on its guns. Tedford added that Interarms’ failure to inspect each gun was such an entire want of care as would constitute a conscious indifference to the welfare and safety of people who might use them.

King’s second expert witness, John Milton Vance, Ph.D., testified that the hammer and sear of the gun in question were of very poor quality, that the ridge was very roughly made, and that the edge of the sear was crudely manufactured. He testified that the Anson-Deli safety design used in the shotgun only prevents the trigger from being pulled, but allows the gun to fire in many cases even while the safety is engaged, especially if the parts fit together poorly. This testimony echoes Interarms’ Director of Engineering, Moure. Vance added that most people who use shotguns expect the safety to always prevent the gun from firing. Interarms’ own expert witness, Charles Hudak, testified that because he knew that this shotgun had a propensity for firing while its safety is engaged, he would have issued a warning cautioning that no safety mechanism is entirely foolproof.

Additionally, there is evidence that Inte-rarms printed a brochure which described the shotgun in question as being meticulously assembled, with all parts completely machined and highly polished. Mr. Moure testified that the guns did not meet the description set out in the brochure. Nonetheless, Interarms continued to distribute the brochure to dealers and the general public for over a year after it determined that the statements made in the brochure were false. This does not directly relate to the defect in the shotgun in question, or the likelihood of safety related defects in other “Star Gauge” shotguns; however, the jury was free to consider this evidence in determining the mental state of Inte-rarms.

We find that the above testimony constitutes evidence upon which the jury could base its finding of gross negligence. Inte-rarms knew of the poor workmanship of the guns it inspected. Interarms also knew that the guns could misfire if the internal mechanism did not fit properly; yet, it chose not to inspect each gun or issue a warning about the safety system. The evidence was sufficient for the jury to infer that Interarms intentionally did not inspect the safety related parts of the guns, but was interested only in the cosmetic appearance of the guns as appearance primarily affected the sale of the weapon.

Finally, Interarms and Oshman’s contend that the court of appeals erred in sustaining the trial court’s award.of attorneys’ fees based upon TEX.BUS. & COM. CODE ANN. § 17.50(d) (Vernon Supp.1982) of the Deceptive Trade Practices — Consumer Protection Act (Act). This provision provides that a consumer who “prevails” under the Act may recover attorneys’ fees. The jury found that the “Star Gauge” shotgun was unfit for its intended purposes and that such unfitness was a producing cause of the injuries. Section 17.50 of the Act states, “(a) A consumer may maintain an action where any of the following constitutes a producing cause of actual damages: ... (2) breach of an express or implied warranty.” Since the jury found that Inte-rarms and Oshman’s breached the implied warranty of fitness set forth in TEX.BUS. & COM.CODE ANN. § 2.315 (Vernon 1968), King is entitled to recovery of attorneys’ fees.

We hold that the court of appeals correctly disposed of Interarms’ points of error concerning the wording of special issues and the jury’s finding of producing cause.

The judgment of the court of appeals is affirmed.

GONZALEZ, J., not sitting.


source: Caselaw Access Project

author: RAY, Justice. GONZALEZ, Justice,

license: Public Domain

text:
    Stephanie ROGERS, A Minor, Petitioner, v. WALMART STORES, INC., et al., Respondents.
    No. C-3383.
    Supreme Court of Texas.
    March 6, 1985.
    Rehearing Denied April 10, 1985.

      Crouch, Scott & Platt, L. Stuart Platt, Greenville, for petitioner.
    Patterson, Lamberty, Kelly & Stanford, Edwin J. Lamberty, Dallas, for respondents.
   RAY, Justice.

This appeal arises from a product liability lawsuit brought by the parents of Stephanie Rogers, a minor, against Walmart Stores, Inc. and Baby Togs, Inc. (Walmart). At issue is the trial judge’s discretion in taxing costs for good cause against the prevailing party pursuant to Tex.R.Civ.P. 141. The trial court rendered judgment on the merits for Walmart, but assessed it with one-half of the total guardian ad litem fees incurred on behalf of Stephanie. The court of appeals reversed and rendered judgment that the guardian ad litem fees be borne totally by Stephanie and her parents. Walmart Stores, Inc. v. Rogers, 675 S.W.2d 313. We reverse the judgment of the court of appeals and affirm the judgment of the trial court.

Following a three-week trial, the jury found that Walmart was not liable for damages to Stephanie and her parents. Before trial, the court assigned a guardian ad li-tem for Stephanie to represent her interests throughout the litigation. Based on an hourly charge, the guardian ad litem accrued $16,161.50 in fees. After trial, the court conducted a hearing on a motion for judgment and assessment of costs. Thereupon, the court rendered judgment, which in part required Walmart to pay one-half of the fees owed to the guardian ad litem. In support, the judgment recited that “[Wal-mart] prolonged the testimony and presentation of evidence of this cause for strategical reasons.... ” Thus, the trial court found “good cause” to tax one-half of the guardian ad litem fees against Walmart.

Under Tex.R.Civ.P. 173, guardian ad litem fees should be “taxed as part of the costs.” The basic rule of procedure pertaining to the assessment of costs, Tex. R.Civ.P. 131, provides that “[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” A corollary to this rule is Tex.R.Civ.P. 141, which states that “[t]he court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.” Rule 141, then, permits a court to assess costs on the prevailing party for good cause as shown on the face of the record. Lofton v. Norman, 508 S.W.2d 915, 922-23 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.); Morrow v. Terrell, 21 Tex.Civ.App. 28, 50 S.W. 734, 736 (Tex. Civ.App.1899, writ ref’d).

The court of appeals based its reversal on the facts that Walmart did not request the appointment of the guardian ad litem and that Stephanie’s parents possessed the financial capability of totally paying the fees. See Davis v. Henley, 471 S.W.2d 883, 885 (Tex.Civ.App.— Houston [1st Dist.] 1971, writ ref’d n.r.e.). Thus, that court held that the facts of this case did not merit a Rule 141 “good cause” assessment of costs on Walmart and that the trial judge abused his discretion by finding otherwise. We disagree. “Good cause” is a very elusive concept which can only be determined on a case-by-case basis. Morrow v. Terrell, 50 S.W. at 736. Consequently, in Rule 141 cases, an appellate court should scrutinize the record to determine whether it supports the trial judge’s decision to tax the prevailing party with part, or all, of the costs. Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81, 96 (1942). Unless the record demonstrates an abuse of discretion, the trial judge’s assessment of costs for good cause should not be disturbed on appeal.

The trial judge in this cause properly considered the manner of Walmart’s presentation of its case in determining that Walmart should bear one-half of the guardian ad litem fees. The record on appeal, as presented to the court of appeals by Wal-mart as the appellant, only includes the statement of facts of the post-trial hearing on the motion for judgment and assessment of costs. Even in that limited record, evidence exists to support the trial judge’s “good cause” imposition of costs against Walmart for unnecessarily prolonging the trial. The determination of a trial judge that a particular trial strategy caused an unnecessary increase in costs should not be disturbed on appeal absent an abuse of discretion. Lofton v. Norman, 508 S.W.2d at 922-23. We hold that the trial judge did not abuse his discretion in taxing costs against Walmart. Accordingly, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.

GONZALEZ, J., dissents.

GONZALEZ, Justice,

dissenting.

I respectfully dissent. Given the adversarial nature of trial proceedings and the variety of strategies and styles of advocacy, we should not penalize a prevailing party that has vigorously prosecuted or defended his case within the parameters of the rules.

Good cause under Tex.R.Civ.P. 141 is such an elusive concept that it is impossible to judge whether a particular trial strategy has caused an unnecessary increase in costs without second guessing trial counsel. There are other remedies, such as contempt of court or a complaint to a disciplinary committee, that are available to a trial judge who wishes to punish an attorney who acts in an improper manner.

I would hold that punitive assessment of costs against a prevailing party that engaged in trial tactics within the rules is an abuse of discretion.


author: KILGARLIN, Justice.

text:
    FIRST INTERNATIONAL BANK IN SAN ANTONIO, Petitioner, v. ROPER CORPORATION et al., Respondents.
    No. C-3461.
    Supreme Court of Texas.
    March 6, 1985.
    Rehearing Denied April 10, 1985.
    Putman & Putman, Vick Putman, San Antonio, for petitioner.
    Clemens, Spencer, Welmaker & Finck, Steven D. Browne, San Antonio, for respondents.
   KILGARLIN, Justice.

This products liability case presents two issues to this court. First, did the trial court’s submission of an instruction on sole cause constitute harmful error? Second, was the trial court’s refusal to allow the plaintiff to introduce a 1982 lawnmower as an illustration of the feasibility of safety changes an abuse of discretion? George Hemeyer sued Roper Manufacturing Company and Sears Roebuck and Company (both defendants will be subsequently referred to as “Roper”) after Hemeyer’s three year old daughter, Mariann, injured her hand in a lawnmower’s grasscutting blades. First International Bank in San Antonio, as guardian of Mariann’s estate, replaced George Hemeyer as plaintiff prior to trial. The suit was tried to a jury under theories of defective design and failure to give adequate warnings and instructions. Roper defended the suit by arguing that parental negligence was the sole cause of the accident. The trial court rendered a take nothing judgment based on jury findings against the bank as Mariann’s guardian. The court of appeals affirmed the trial court’s take nothing judgment in an unpublished opinion. We reverse the judgments of the courts below and remand this cause for a new trial.

In March 1975, George Hemeyer purchased a lawnmower from Sears. The lawnmower had been manufactured by the Roper Corporation. In September 1976, Hemeyer left the lawnmower running while emptying the grasscatcher. In his absence, his three year old daughter, Mar-iann, left the Hemeyers’ house, entered the front yard, and severely injured her hand when it came into contact with the gras-scutting blades of the mower. Mariann’s suit alleged that the lawnmower suffered from design defects in that it did not have a brake blade clutch, an interlock cut-off switch or a deadman switch. She also contended that the mower was dangerously defective because the mower did not cover the blades when the grasscatcher was removed.

The allegedly erroneous jury instruction appeared after the general boilerplate instructions and prior to all special issues. The instruction on producing cause contained a substantially approved definition. See Rourke v. Garza, 530 S.W.2d 794, 801 (Tex.1975). However, after the approved definition and as part of the instruction on producing cause, the trial court submitted the following instruction:

There may be more than one cause of an occurrence, but there can be only one sole cause. If an act or omission of any person not a party to the suit was the sole cause of the occurrence, then no act, omission, or product of any party to the suit could have been a cause of the occurrence.

In answer to the liability questions, the jury found no design defect or failure to give adequate warnings and instructions. The jury also responded to all damage issues that $“0.00” would fairly and reasonably compensate Mariann Hemeyer for her injuries, resulting from the occurrence. The causation issues were left unanswered because they were predicated on affirmative answers to the liability issues.

The bank argues that the sole cause issue poisoned the jury verdict, because it was a comment on the weight of the evidence and because it improperly inserted negligence into a products liability ease. The bank asserts that the result of the instruction submission was harmful error. Roper contends that the instruction was correctly submitted and, in any event, was not harmful error.

We note initially that this case was tried in February 1983, a year before our decision in Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984). Thus, the comparative causation analysis which we announced in Duncan does not apply to this case. Because this is a pre-Duncan suit, contributory or third party negligence can only be a defense when it rises to the level of misuse or assumption of the risk. Otherwise, the defendant must negate an element of the plaintiff’s case. Roper chose the latter alternative and attempted to negate the causal connection between the lawnmower and the accident, claiming that the sole cause of the accident was parental negligence.

Neither party to this suit questions the correctness of the instruction as a definition of “sole cause.” The only question pertains to its propriety in this case. This type of question was first considered by this court in Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979). In that suit, we reversed a court of appeals’ opinion which held that juries should be instructed to balance specific factors in determining the outcome of products liability cases. We explicitly approved the correct special issue form and a single accompanying instruction on design defect. Additional instructions on how to balance the competing factors in a products liability suit were, however, disapproved.

In 1983, we again faced the question of whether an instruction was superfluous. In Fleishman v. Guadiano, 651 S.W.2d 730 (Tex.1983), the plaintiff complained because the trial court refused to submit the following instruction in a defective design suit:

You are further instructed that in answering this issue you shall not consider any evidence of negligence on the part of Virginia Guadiano, if any, in climbing the ladder in question on the occasion in question.

In determining that this was not a proper instruction, this court explained that the special issue in that case accurately stated the question for the jury to answer. Any further instruction “would have deflected the jury’s attention to ... contributory negligence when it was considering whether the ladder was defectively designed.” Id. at 731.

Finally, the issue of unnecessary explanatory instructions emerged again in Acord v. General Motors Corp., 669 S.W.2d III (Tex.1984). In that design defect case, the trial court instructed the jury that a manufacturer is not an insurer of the product he designs nor is he required to create perfect products. Relying on Turner and Guadi-ano, we held that such an instruction should not be submitted in a strict liability case. We explicitly approved the Texas Pattern Jury Charges special issue and instruction on design defect, but again stated that additional instructions which single out balancing factors are improper comments on the case.

In the present suit, the sole cause instruction was surplusage of the type against which we warned in Acord. Appropriate special issues ask the jury about the existence of a product defect and its causal connection to the accident. Any additional instruction serves merely as a diversion from those issues. The sole cause instruction placed an undue emphasis on the Hemeyers’ negligence when the jury was considering the existence of a defect and its relationship to the injurious event.

Citing Herrera v. FMC Corp., 672 S.W.2d 5 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.), and Gross v. Black and Decker (US), Inc., 695 F.2d 858 (5th Cir.1983), Roper insists that the judge was required to submit the instruction because its pleadings and evidence required to submit the instruction because its pleadings and evidence raised the issue of “sole cause.” We first point out that neither of these holdings are binding upon this court; and second, that they were both decided before Acord. While Gross was handed down before Guadiano, nonetheless, we must consider the reasoning used in these cases to determine if they rationally support Roper’s position.

Herrera v. FMC Corp. involved an oil-worker who was injured when equipment fell from a derrick hitting the worker in the upper back. The worker alleged failure to adequately warn of potential dangers. FMC defended by alleging that misuse was the sole cause of the injury. Appealing a take nothing judgment, the worker argued that evidence on sole cause should not have been admissible and that there was no evidence to support submission of a sole cause instruction. The court found nothing to preclude a sole cause defense in that case. The appellate court, however, did not reach the question of whether the submission of sole cause was proper, because the plaintiff did not object to the issue prior to its submission to the jury.

Our holding that the “sole cause” instruction was improper surplusage is thus not affected by Herrera. Roper’s entire defense to this products liability suit depends on ordinary negligence, whereas in Herrera the defendant pled and proved misuse. Second, the Herrera court never considered whether or not the issue was surplusage because of the plaintiff’s failure to preserve error. The best language which Roper can pull from Herrera is that the court found “nothing in [the cited cases] to indicate that a ‘sole cause’ defense as presented in [Herrera], is improper.” Id. The court of appeals’ only support for this statement is Gross v. Black and Decker (US), Ivc,

In Gross, a worker whose left hand was injured while using a Black and Decker saw at work brought suit based on a marketing defect and negligence. Black and Decker countered that the employer’s failure to warn and to provide safety equipment was the sole cause of Gross’ injury. The court announced:

Under Texas law, if it is the position of the defendant that he is entitled to be absolved of liability because the event in question was caused by the negligence of a codefendant or of a party to the event who is not a party to the suit, he may protect himself through pleadings, proof, and findings that the negligence of such person was the sole proximate cause of the event.

Id. at 861. The Fifth Circuit based its interpretation of Texas law on a case in which the plaintiff asserted only a negligence cause of action and by citing “40 Tex.Jur.2d Rev., part 2, Negligence § 16,” which discusses only negligence claims. The court cited no authority that applied a negligence based sole cause defense with a sole cause instruction to a products liability suit. In addition, the plaintiff in Gross asserted a negligence cause of action as well as actions in products liability. The present case is grounded solely in products liability. Thus, neither Herrera nor Gross support the submission of a sole cause instruction founded in negligence in the case before us.

Roper contends that even if the inclusion of the sole cause instruction in the charge was error, it was only harmless error. The jury never reached the causation issues to which the instruction applied, because they were predicated on the liability issues. The judgment is supported by the findings which were not affected by the instruction, so Roper contends any error is harmless. Spradling v. Williams, 566 S.W.2d 561, 564 (Tex.1978).

The record on its face shows this error to have been harmful. The evidence at trial clearly established that Mariann suffered injuries from the accident. Yet, in response to the damages issues, the jury found that Mariann suffered no compensa-ble injuries. In addition, we reiterate the message of Acord. In a closely contested products liability case, it is error to burden the jury with excess instructions which emphasize extraneous factors to be considered in reaching a verdict. The questions in a pre-Duncan products liability case are: was there a defect; did the defect cause damage; and what are the damages. In this case the issue was whether the lawnmower was defective and whether that defect caused Mariann’s injuries. The sole cause instruction, however, singled out the acts of the parents and highlighted the question of the parents’ negligence. The result, as forecast by the court in Guadi-ano, was that the jury’s attention was diverted from the pivotal issues of the case. The trial court thus committed harmful error by submitting the instruction because it was a comment on the weight of the evidence and the case as a whole.

Because we have determined that the sole cause instruction resulted in harmful error, we do not reach the question of the admissibility of the lawnmower as an illustration of safety feature feasibility. We note only that when this ease is retried, the new rules of evidence will apply.

Having found the initial trial to be tainted by the sole cause instruction, we reverse the judgments of the courts below and remand this cause to the trial court for a new trial.


author: GONZALEZ, Justice. KILGARLIN, Justice,

text:
    J.S. LOGAN, Jr., Petitioner, v. J.A. MULLIS, and Wife, Martha Mullis, Respondents.
    No. C-3313.
    Supreme Court of Texas.
    March 13, 1985.

      Hubbard, Patton, Peek, Haltom & Roberts, Donald W. Capshaw, Texarkana, for petitioner.
    Atchley, Russell, Waldrop & Hlavinka, Norman C. Russell, Texarkana, for respondents.
   GONZALEZ, Justice.

This is a suit for damages and an injunction for interference with an easement. After a jury trial, the trial court rendered judgment for defendant, J.S. Logan, Jr. In an unpublished opinion, the court of appeals reversed and rendered judgment for plaintiffs, J.A. and Martha Mullis. We affirm.

In 1977, Logan owned a tract of land which was landlocked. He purchased a roadway easement from James and Carolyn Ashford, the owners of adjoining property. The easement crossed the Ashfords’ property to a public road. The easement provided that:

The right of way, easement, rights and privileges herein granted shall be used only for the purpose of providing pedestrian and vehicular ingress and egress between the paved highway lying West of the Grantors’ property mentioned above and the property of Grantee which adjoins the property of Grantors to the East.
It is agreed that the Grantee will build a fence along one side of the said easement as agreed with the Grantors, and further that the Grantors, their heirs and assigns, and the agents, invitees and guests of the Grantors, their heirs or assigns may also use the road way built and to be built by the Grantee.

Logan subsequently constructed a gravel road over the easement. Because a creek intersected the easement, he built a culvert beneath the road at that point. The culvert was constructed by cutting both ends off of a railroad tank car and putting it in the creek bed. When the culvert was completed, the gravel road was extended over it.

Later the same year that Logan obtained his easement, the Mullises purchased 18½ acres of land from the Ashfords, subject to and including the Logan easement. Several years later, Logan acquired another highway access by purchasing the remainder of the Ashford property. Since he no longer needed the easement across the Mullís tract, Logan sent a letter to the Mullises informing them that “[y]ou will not use my road easement again unless you put it in yourself. Please be so advised and no matter what.” Logan thereafter removed the metal culvert from the Mullis-es’ property, destroyed part of the fence along the roadway, and piled dirt across the road to make it impassable.

The Mullises sued Logan for damages and injunctive relief. After a hearing, Logan was ordered to, within ninety days, replace the culvert, remove the obstructions placed across the easement and restore approximately 200 feet of fence which he tore down while removing the culvert. When he failed to comply, a motion for contempt of court was filed. Logan died before the motion was heard, and the suit for damages continued against his estate.

At trial, only special issues on damages were submitted to the jury. The jury found that: (1) the reasonable cost necessary to put the roadway in the condition in which it was immediately before Logan removed the culvert was $4,000; (2) the Mul-lises had suffered damages as a result of the removal of the culvert; and (3) the reasonable value of the loss of use of the property was $900.

The trial court initially rendered judgment for the Mullises in accordance with the jury verdict. Thereafter, Logan filed timely motions for new trial, for judgment N.O.V. and to vacate the judgment. The trial court vacated its original judgment and rendered a take nothing judgment in Logan’s favor. At the Mullises’ request, the trial court filed findings of fact and a conclusion of law that the culvert was not a fixture and that therefore, Logan had a right to remove it without incurring liability-

The essential liability issue was whether the culvert was permanently attached to the realty. If it retained its character as personalty, Logan was free to remove it when he abandoned the easement. If the culvert was a fixture, Logan had no right to remove it and subjected himself to liability for damages for its removal.

Three factors are relevant in determining whether personalty has become a fixture, that is, a permanent part of the realty to which it is affixed: (1) the mode and sufficiency of annexation, either real or constructive; (2) the adaptation of the article to the use or purpose of the realty; and (3) the intention of the party who annexed the chattel to the realty. O’Neal v. Quilter, 111 Tex. 345, 234 S.W. 528, 529 (1921), Fenlon v. Jaffee, 553 S.W.2d 422, 428 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.). The third criterion dealing with intention is preeminent, whereas the first and second criteria constitute evidence of intention. Fenlon v. Jaffee, 553 S.W.2d at 428; Hutchins v. Masterson, 46 Tex. 551, 554 (1887).

Intent is made apparent by objective manifestations. Citizens’ National Bank of Abilene v. Elk Mfg. Co., 29 S.W.2d 1062, 1065 (Tex.Comm’n App.1930, judgmt adopted). See also City of Pine-hurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968). As a general rule,' intent is a question of fact to be decided by the jury. However, even testimony of intention that the chattel was not meant to become a fixture will not prevail in the face of undisputed evidence to the contrary. See Ruby v. Cambridge Fire Ins. Co., 358 S.W.2d 943, 946 (Tex.Civ.App.—Dallas 1962, no writ). Where reasonable minds cannot differ, the issue is one of law rather than one of fact. See Exchange Savings & Loan Association v. Monocrete Pty. Ltd., 629 S.W.2d 34, 37 (Tex.1982) when this court in effect held that cement roofing tiles affixed to a dwelling were fixtures as a matter of law for purposes of determining lien priorities under TEX.REV. CIV.STAT.ANN. art. 5459.

In this case, the intention to make the tank car a fixture is conclusively established by Logan’s conduct at the time he built the culvert. The manner in which he affixed the tank car to the realty, the circumstances surrounding the building and eventual destruction of the culvert, and the adaptability of the culvert to the peculiar topography of the land are all prime evidence of intention. Logan began construction by packing some substance (either clay or gravel) on the creek bed to prevent water from washing underneath the tank. After the tank car was in place, Logan used dirt, cement and wood pilings to pack it. He also built retaining walls around the culvert. After the tank was buried, he laid a gravel road on top of it. The tank was thus embedded in the road so that a vehicle could cross over it.

The manner in which the tank car was affixed to the realty is further evidenced by the difficulty Logan had in removing it once it was embedded. Logan testified that he used several large winch trucks to hoist the tank car out of the creek. In the process, he excavated the gravel and removed the wood and concrete surrounding the tank car. Once the culvert was destroyed, the road was impassable and the stream eroded the creek banks considerably.

The purpose for which the annexation was made sheds further light on the issue of intent. In this case, it is undisputed that Logan’s property was completely landlocked when he acquired the easement. He had no other prospects of obtaining access to a public road at that time. However, the easement was useless as a means of ingress and egress unless the creek intersecting it could be spanned. For that reason, Logan constructed the culvert.

Counsel for Logan’s estate stipulated that Logan had abandoned the easement. He was free to do so. Yet, his right to abandon the easement did not vest him with authority to destroy the roadway and thereby prevent others from taking advantage of the benefits to which they were legally entitled, both by the easement grant itself and by their rights as owners of the freehold estate.

The status of the culvert as a permanent accession to realty was not altered simply because Logan opted to abandon the easement. Once the tank car was affixed in the manner that it was, it became a part of the fee estate. Logan was therefore liable for its removal.

The Mullises contended before the court of appeals that the trial court’s findings of fact and conclusion of law that the culvert was not a fixture were erroneous. They assert that there was no evidence to support the fact findings, and that therefore, the conclusion of law based upon such findings was in error.

The court of appeals rendered judgment for the Mullises based on the jury verdict. Although there was no jury finding on the character of the culvert, the court of appeals held that the culvert had impliedly been found to be a fixture because the omitted issue was referable to the jury finding of damages in favor of the Mullises.

Tex.R.Civ.P. 279 provides "... such omitted issue or issues shall be deemed or found by the court in such a manner as to support the judgment.” (Emphasis added.) Tex.R.Civ.P. 301 provides that there will be only one final judgment. Once the first judgment (in the Mullises’ favor) was set aside, the cause stood precisely as if there had been no judgment. Thus, the later judgment (in Logan’s favor) must be viewed as the only judgment rendered in the case. Sampson v. Scott, 318 S.W.2d 22 (Tex.Civ.App. Fort Worth 1958, writ ref’d n.r.e.). The court of appeals incorrectly applied Rule 279 to the jury findings rather than the judgment. However, since the culvert was a fixture as a matter of law, the issue was properly excluded from jury consideration. Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 503 (1926). The court of appeals was therefore correct in rendering judgment for the Mullises.

We affirm the judgment of the court of appeals.

Dissenting opinion by KILGARLIN, J., joined by RAY, J.

KILGARLIN, Justice,

dissenting.

Because the determinative legal question discussed in the majority opinion was not briefed or argued by the parties either before this court or the court of appeals, I respectfully dissent.

A basis for understanding the error made by the majority of the court lies in the case’s procedural history. The Mullises brought suit for damages they incurred due to Logan’s destruction of the culvert. The jury answered damage issues in favor of the Mullises, but did not answer liability issues since none were submitted to the jury. The trial court initially rendered judgment in favor of the Mullises. Following several motions by Logan, including motions for new trial, a motion for judgment n.o.v. and motions to vacate the judgment, the trial court set aside the first judgment and rendered a second judgment for Logan. The trial court substituted this second judgment within the time period that it had plenary power.

The court of appeals reversed, holding that liability was a deemed finding under Tex.R.Civ.P. 279 as consistent with the trial court’s first judgment. It held that the trial court had no power to vacate the first judgment, even though the trial court had plenary power. Written findings made by the trial judge to support the second judgment were likewise held to be improper under the theory that Rule 279 requires such findings to be made by the trial court prior to judgment. The court of appeals interpreted the word “judgment” in Rule 279 to mean the first initial judgment, not the final judgment rendered by the trial court. Throughout its opinion the court of appeals treated the question before it as a deemed fact finding under Rule 279. Writ of error was granted by this court solely on the issue of whether or not the court of appeals’ procedural analysis was correct.

Today the majority decides that Logan’s culvert was permanently attached to the realty as a matter of law (emphasis added). Although I do not quarrel with the majority’s conclusion, I do dispute their procedural power to reach such a question. Neither Logan nor the Mullises briefed or argued this legal question to the court of appeals. There is nothing in the court of appeals opinion remotely suggesting that this issue was before that court. Neither party argued or briefed this question in this court.

Indeed, the Mullises, receivers of the majority’s benevolence, argued both before us and the court of appeals that determination of the culvert’s character was a question of fact. It should be noted that the Mullises did attack in the court of appeals the second trial court judgment on the grounds that there was no evidence to support the court’s fact findings. However, the Mullis-es did not ask the court of appeals or this court to find as a matter of law that the culvert is a fixture. Moreover, their only no evidence argument remotely contending the culvert was a fixture was one directed toward Logan’s intent, which, as the majority observes, is but one of three necessary factors. Thus, the Mullises prevail on an argument never made. The irony of the majority’s reasoning is underscored by the fact that the Mullises proceeded under assumptions opposite to the majority’s conclusion.

The law in Texas is clear that grounds of error not asserted by points of error or argument before the appellate courts are waived. Gulf Coast State Bank v. Emenhiser, 562 S.W.2d 449, 452-53 (Tex.1978). Points not argued or briefed are questions that the court of appeals has no power or authority to decide. Bickler v. Bickler, 403 S.W.2d 354, 361 (Tex.1966). Accordingly, this court has jurisdiction only over those issues that are properly before it. Wisdom v. Smith, 146 Tex. 420, 209 S.W.2d 164, 166 (Tex.1948). A question of law not argued by either party and not found in the court of appeals opinion is outside this court’s power and authority to decide legal questions.

These procedural rules not only incorporate basic jurisdictional concepts but also provide important constitutional safeguards. Due process assures not only an opportunity to present one’s position but also an opportunity to respond to issues raised by one’s opponent. When a case is decided on an issue never raised or anticipated, that opportunity is denied. Justice Frankfurter once noted that “the history of liberty has largely been the history of observing procedural safeguards.” McNabb v. U.S., 318 U.S. 332, 347, 63 S.Ct. 608, 616, 87 L.Ed. 819 (1943). Because I would decide the case only on the issues properly before the court, I dissent.

RAY, J., joins in this dissenting opinion.


author: ROBERTSON, Justice.

text:
    Wiley E. HILL, Petitioner, v. Dr. John C. MILANI, Jr., Respondent.
    No. C-3612.
    Supreme Court of Texas.
    March 13, 1985.
    Gibbins, Burrow & Bratton, R. Louis Bratton, Austin, for petitioner.
    Pierre A. Kleff, Jr., Killeen, for respondent.
   ROBERTSON, Justice.

This is an appeal from a summary judgment construing the two-year limitations provision of the Medical Liability and Insurance Improvement Act of Texas, Tex. Rev.Civ.Stat.Ann. art. 4590i § 10.01 (Vernon Supp.1985).

On August 24, 1980, Wiley E. Hill was bitten by a rattlesnake and treated by Dr. John C. Milani, Jr. Hill filed suit on November 2, 1982, alleging that Dr. Milani was negligent in treating the snakebite. Dr. Milani moved for summary judgment, alleging that Hill’s action was barred by limitations.

At the summary judgment hearing, argument focused on the question of whether Tex.Rev.Civ.Stat.Ann. art. 5537 (Vernon 1958) tolled the limitations period while Dr. Milani was absent from the state. The judgment, in fact, recites a stipulation that the interaction of art. 5537 and art. 4590i § 10.01 was the sole issue in dispute. This stipulation was facially valid as a Rule 11 agreement, under this court’s decision in City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979), and its validity is not questioned by point of error in this court. See Tex.R.Civ.P. 11. In view of this stipulation, the trial court declined to consider, on motion for rehearing of the summary judgment, the new question of whether the limitations period was tolled for a period of 75 days by the timely sending of a notice letter. Tex.Rev. Civ.Stat.Ann. art. 4590i § 4.01(a), (c) (Vernon Supp.1985). Petitioner does not complain of this action.

The sole issue thus presented for this court’s consideration is whether the tolling provision of art. 5537 affects the two-year limitation provision of art. 4590i § 10.01. The trial court held that it does not, and granted defendant’s motion for summary judgment. The court of appeals affirmed. 678 S.W.2d 203. We affirm the judgments of the courts below.

Article 4590i § 10.01 provides, in relevant part, that

“Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed....”

(emphasis added) The language of the statute is clear and exclusive. Elsewhere in the Medical Liability and Insurance Improvement Act, limited tolling provisions are contained, suspending the statute during minority, § 10.01, and upon the giving of notice. § 4.01(e). Article 5537 is not part of the statutory scheme for medical malpractice claims envisioned by the legislature, and is part of the “other law” expressly made inapplicable by operation of statute.

For the foregoing reasons, the judgments of the courts below are affirmed.


author: GONZALEZ, Justice. SPEARS, Justice,

text:
    INA OF TEXAS, Petitioner, v. Lawana BRYANT, Respondent.
    No. C-3430.
    Supreme Court of Texas.
    March 20, 1985.
    Malia A. Connery, Dallas, for petitioner.
    J. Thomas Sullivan, Paul W. Pearson, Dallas, for respondent.
   GONZALEZ, Justice.

The sole issue in this summary judgment case is whether a fact issue was raised in the trial court as to the status of an employee at the time of the accident. The trial court granted summary judgment against the employee. The court of appeals reversed and remanded the cause to the trial court for trial on merits. 673 S.W.2d 693. We affirm the judgment of the court of appeals.

Lawana Bryant was a part time worker at a bakery. Her husband also worked there. She was laid off after having worked only four days. She did not pick up her pay on her last day, but returned to the bakery sixteen days later to get it. While at the bakery she fell and was injured. Bryant sued INA of Texas, the worker’s compensation carrier for the bakery, claiming an entitlement to benefits as a result of her injury. She contends that an issue of fact exists as to whether the employment relationship continued through the time that she suffered her injuries. This issue of fact is allegedly raised by (1) her response to INA’s motion for summary judgment, and (2) her deposition on file at the time the judgment was rendered.

Bryant’s response to INA’s motion for summary judgment was not timely filed, and nothing appears of record to indicate that the late filing was with leave of court. Therefore, we must presume that the trial court did not consider it in rendering a take nothing judgment in favor of INA. Tex.R. Civ.P. 166-A.

It is the movant’s burden in a summary judgment proceeding to establish his right to judgment as a matter of law. He is not, however, required to “negate all possible issues of law and fact that could be raised by the non-movant but were not.” City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). INA’s affidavit of the bakery bookkeeper shows that it was the policy of the bakery to mail checks to terminated employees, or to allow them to pick them up, as they chose. The bookkeeper further stated that, to her knowledge, no one had advised Bryant to return to the plant to get her check. The affidavit does not state that Bryant was told of her option to receive the check by mail.

The court of appeals based its opinion on certain hearsay statements contained in Bryant's deposition. We need not address the issues raised in that opinion, however, as a fact question is also raised by other evidence found in Bryant’s deposition. Bryant states that her husband had worked in the past at the bakery and that he had always returned to the plant to pick up his pay. This fact coupled with the failure of INA to establish that Bryant was informed of her choice as to the method of payment, raises a material issue of fact as to whether the practice of the bakery required Bryant to return in order to receive her final paycheck.

To prove an injury compensable, a claimant must show (1) that she was an employee, (2) that the injury occurred in the furtherance of the affairs or business of the employer and (3) that the injury was of the kind and character that originated in, or had to do with, the employer’s business. Tex.Rev.Civ.Stat.Ann. art. 8309 § 1; Deatherage v. International Insurance Co., 615 S.W.2d 181 (Tex.1981); Biggs v. United States Fire Insurance Co., 611 S.W.2d 624 (Tex.1981).

This injury is of a type which originated in the business of the employer. Clearly, being paid for work done is within the employment relationship and contract. The question of coverage, therefore, turns on the character of Bryant’s return to the plant. If plant practice required Bryant to return to pick up her pay, then her injury would have occurred in the course and scope of employment. See Johnson v. Toro Co., 331 N.W.2d 243 (Minn.1983); Solo Cup Co. v. Pate, 528 P.2d 300 (Okla. 1974); 1A A. Larson, The Law of Workmen’s Compensation § 26.00 et seq. (Supp. 1982). We hold that when an employee is directed or reasonably believes from the circumstances she is required by the employer to return to the place of her employment to pick up her pay after termination and an otherwise compensable injury occurs, then such an injury is reasonably incident to her employment and is incurred in the furtherance of the employer’s affairs. Accordingly, we affirm the judgment of the court of appeals and remand the case to the trial court for trial.

SPEARS, J., files a dissenting opinion in which CAMPBELL, J., joins.

SPEARS, Justice,

dissenting.

I respectfully dissent. The majority goes too far in holding that a terminated employee who reasonably believes that she is required to return to pick up her paycheck is covered by worker’s compensation. The better rule, and the rule consistent with the holdings of the cases relied upon by the majority, is that in order for a terminated employee to be covered, that employee must have been instructed to return to the employer’s premises in order to receive her pay. The former employee must have been required to pick up the check, and should not be covered by worker’s compensation if she decides to go pick up her pay based on hearsay or rumor. If the employee does not request that her check be mailed to her, then it is for her convenience that she decides to return to get it.

My position is consistent with the denial of worker’s compensation for pre-employment injuries. Carnes v. Transport Ins. Co., 615 S.W.2d 909 (Tex.Civ.App.—El Paso 1981, writ ref d n.r.e.). The denial of worker’s compensation coverage during the pre-employment association which leads to employment is analogous to the denial of coverage during the post-employment association.

Moreover, the only cases cited by the majority support a requirement that the employee be instructed to return to the employers premises. In Johnson v. Toro Co., 331 N.W.2d 243 (Minn.1983), it was customary for employees to receive a turkey as the Christmas bonus. While on a medical leave of absence, Ms. Johnson received a letter inviting her to come to the plant on December 21 in order to receive her turkey. She went to the plant to pick up her turkey and while in the parking lot slipped and was injured. The Minnesota Supreme Court held that she was covered by worker’s compensation. There are two important facts that distinguish Johnson from the instant case. First, Ms. Johnson was still an employee at the time of injury. Second, she was instructed in writing that if she wanted her turkey, she had to come and get it. Johnson does not support the majority opinion.

In Solo Cup Co. v. Pate, 528 P.2d 300 (Okla.1974), the company required employees to work in uniform and furnished them with two uniforms and a locker with key so the employees could comply. Ms. Pate quit, and at the company’s request signed a termination statement. In it she agreed that she would “return all company property in good condition before I receive my last check.” 528 P.2d at 300. The company property was listed as two smocks and one key. On the day she quit, one of the uniforms was at home, so she did not receive her last paycheck. On the usual payday she returned to the company to turn in the uniform which the Oklahoma Supreme Court held “was required for her to receive her last check.” 528 P.2d at 300. While in the manager’s office she tripped and was injured. The court held that she was covered by worker’s compensation. Pate is distinguishable because Ms. Pate was instructed in writing that she had to bring in her uniforms and key in order to receive her pay. Likewise, in Cyrus v. Vierson & Cochran, Inc., 631 P.2d 1349 (Okla.App. 1981), the court held that a former employee who was told by a company spokeswoman that he would have to pick up his final check at the job site was covered by worker’s compensation.

The majority states that “being paid for work done is within the employment relationship and contract.” This statement is overly broad, and is apt to be construed with unintended and incongruous results. At some point when a former employee has not received her pay, the employee-employer relationship is transformed into a debtor-creditor relationship. 1A A. Larson, The Law of Workmen’s Compensation § 26.30 (1982). Otherwise, a terminated employee who is not required to return, but fails to leave a forwarding address so the check can be mailed, could return for her paycheck six months later, fall, and be covered by worker’s compensation.

I would hold that Bryant’s deposition testimony that her husband had worked in the bakery and had always returned to pick up his pay does not raise a question of fact that she was directed to return to the bakery in order to receive her final check. Indulging every inference in favor of the nonmovant, I find no competent summary judgment evidence that she was instructed that she had to return in order to obtain her pay. Accordingly, I would reverse the judgment of the court of appeals and affirm the judgment of the trial court.

CAMPBELL, J., joins in this dissenting opinion.


author: PER CURIAM.

text:
    Ex parte Bernard and Odette PORT.
    No. 14336.
    Court of Criminal Appeals of Texas.
    Sept. 11, 1984.
   ORDER

PER CURIAM.

On this day came to be considered this original application for writ of habeas corpus in which the applicants complain that they are being illegally restrained of their liberty by virtue of judgments of contempt and commitment orders entered by the Honorable I.D. McMaster, Judge of the 179th District Court of Harris County, on August 28, 1984, and also came to be considered the response by the State on behalf of the Respondent Judge, and this Court is of the opinion that the motion for leave to file this original application should be denied.

Accordingly, the motion by the applicants for leave to file this original application for writ of habeas corpus is DENIED and that portion of this Court’s order of August 28, 1984, in which it was ordered that the applicants be released from confinement on their personal bonds of $1,000 each, is hereby withdrawn. It is so ordered this 10th day of September, 1984.

CLINTON and TEAGUE, JJ. would grant leave to file.


author: CLINTON, Judge. TEAGUE, Judge,

text:
    Ex parte Antonio SILLER.
    No. 69353.
    Court of Criminal Appeals of Texas, En Banc.
    Feb. 27, 1985.
    Rehearing Denied March 27, 1985.
    Nancy B. DeLong, Huntsville, for appellant.
    Sam D. Millsap, Jr., Dist. Atty. and Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION

CLINTON, Judge.

This is an application for habeas corpus seeking relief from consequences of a conviction pursuant to Article 11.07, V.A.C. C.P. Basically applicant contends that out of the same “criminal episode” or transaction he has been twice convicted in one trial on a single indictment, whereas the law allows only one conviction and punishment in the premises. We agree and grant relief.

In Cause No. 82-CR 2231 in the 289th Judicial District Court, Bexar County, the indictment contains two counts: the first alleges that on the 25th day of April, 1982 appellant had sexual intercourse with a named female younger than 17 who was not his wife and was younger than 14 years of age; the second avers that on the same day appellant did engage in sexual contact with the same female child by touching her vagina with intent to arouse and gratify his own sexual desire. On his plea of not guilty the case was tried to a jury that returned a verdict of guilty on each count and then assessed punishment at confinement in the Texas Department of Corrections for 30 years and 10 years, respectively. In a single judgment the trial court adjudicated guilt of each offense and imposed separate sentences to run concurrently. On appeal the Fort Worth Court of Appeals affirmed in an unpublished opinion.

Applicant swears both offenses arose out of the same “criminal episode;” the local prosecuting attorney impliedly acknowledges they occurred in one transaction; the judge of the convicting court specifically found that “both offenses arose out of the same transaction.” That is the premise on which we shall proceed.

The propriety of charging two or more offenses from a single transaction aside for the moment, it is settled law in this State that regardless of allegations in a charging instrument the consequence of a general verdict of guilt, as all predecessors to Article 37.07, V.A.C.C.P., mandated, is but one conviction and one punishment. Drake v. State, supra. Thus, applicant is entitled to appropriate relief unless the law has been changed by some authoritative judicial pronouncement or valid legislative enactment.

The State concedes that based on “the current state of the law it appears that the procedure utilized by the trial court was improper in that it allowed for more than one conviction arising out of a single indictment.” It further concedes that rule of law “remains intact” despite abolition of the “carving doctrine” in Ex parte McWilliams, 634 S.W.2d 815 (Tex.Cr.App.1982). The State disassociates itself from what it concedes is still the law; it urges upon this Court two bases for finding that the prohibition against multiple convictions on a multiple count indictment is no longer “a valid rule of law.”

First ground is that without the “carving doctrine” there is no foundation for the rule. The judge of the convicting court opined that “the procedural aspect of the carving doctrine disallowing multiple verdicts from a multiple count indictment was not addressed by the Court of Criminal Appeals and remains intact;” however, he perceives that the Blockburger test (see McWilliams, supra) permits the State to prosecute the two offenses alleged in this indictment and to obtain a verdict on each, and allows the trial court to enter judgment on each and to impose separate sentences.

In Drake we examined the carving doctrine in juxtaposition with the common law rules of joinder of offenses, and concluded one is independent of the other. Carving meant that the State could cut as much as it desired out of one transaction and allege what it had carved in a single indictment, whereas restricting the State to but one conviction from that single indictment was a feature of the common law that in Texas was soon incorporated into statutory law for criminal actions.

Secondly, the State urges and the judge of the convicting court agreed that intent of the Legislature in adding §§ 1(c) and 2(c) to Article 37.07, V.A.C.C.P., was to enable the State to obtain in one trial valid multiple convictions for offenses other than offenses against property alleged in a single indictment. We find such was not at all the intent nor is it the effect.

As revised in 1965, § 1 of Article 37.07, V.A.C.C.P., provided:

“1. The verdict in every criminal action must be general. When there are special pleas on which a jury is to find, it must say in its verdict that the allegations in such pleas are true or untrue. If the plea is not guilty, it must find that the defendant is either guilty or not guilty.”

Section 2 set forth an “alternate procedure” authorizing a bifurcated trial.

In the next session § 1 was amended by Acts 1967, 60th Leg., Ch. 659, § 22, p. 1739. Added were an “exception” and a clause: “and, except as provided in Section 2, they shall assess the punishment in all cases where the same is not absolutely fixed by law to some particular penalty.” Section 2 remained the “alternate procedure,” albeit modified somewhat in particulars not relevant to this examination. There was neither a subsection (b) or (c) to § 1 nor a (c) to § 2. They came as conforming amendments to implement the new penal code. See Acts 1973, 63rd Leg., Ch. 399, 971, § 2(A), reproduced in 4 V.T.C.A. Penal Code 365 ff.

Along with those amendments to Article 37.07 the Legislature introduced its own concept of multiple prosecution just for repeated commission of an offense against property only, pursuant to V.T.C.A. Penal Code, Chapter 3, and necessarily sought to render former Article 21.24, V.A.C.C.P., compatible with those new provisions. See Drake, supra, for development of legislative history of Article 21.24 and its ramifications and consequences, as we understand them.

Having thus rewritten provisions for consolidation and joinder of certain property offenses for trial, and since those multiple prosecutions might well bring about multiple punishments under § 3.03, the Legislature turned its attention to Article 37.07. The last sentence of subsection (a) of § 1 became subsection (b), and a new subsection (c) was added to coincide with changes made in Article 21.24; it reads:

“(c) If the charging instrument contains more than one count or if two or more offenses are consolidated for trial pursuant to Chapter 3 of the Penal Code, the jury shall be instructed to return a finding of guilty or not guilty in a separate verdict as to each count and offense submitted to them.”

Subsections (a) and (b) of § 2 remained substantially the same, but a new subsection (c) was added, viz:

“(c) Punishment shall be assessed on each count on which a finding of guilty has been returned.”

Given a consistently developing legislative history reflected in the materials discussed ante and in Drake, then, all the affirmative evidence is that § 1(c) and § 2(c) were added to Article 37.07 to effectuate the provisions for “multiple prosecutions” of offenses against property constituting a criminal episode within the meaning of § 3.01. Negatively, since the Legislature rejected the broader definition of “criminal episode” proposed in the Blue Book and proposed conforming amendments to the code of criminal procedure related to that definition — a packaged statutory scheme to accomplish much of what the State now claims — one would be most irrational to conclude that the Legislature designed the amendments to implement what demonstrably it had refused to accept. See generally Gordon v. State, 633 S.W.2d 872, 876-877 (Tex.Cr.App.1982) and Stevens v. State, 667 S.W.2d 534, 536-538 (Tex.Cr.App.1984).

Furthermore, there is not to be found from any source an indication that in adding § 1(c) and § 2(c) to Article 37.07 in 1973 the Legislature intended to authorize multiple convictions of offenses generally. To say that they are not forbidden by statute begs the question. The law applicable to a given situation need not be in black letters, nor appear as a “brightline” rule. It is enough that our appellate courts have uniformly held before and after article 433 was inserted in the revision of the code of criminal procedure in 1879 that multiple convictions may not be had on two or more counts in a single indictment alleging offenses arising out of the same transaction.

Accordingly, applicant is entitled to relief. Count I alleged aggravated rape and the judgment indicates that the jury first found appellant guilty of that offense. Therefore, the judgment in Cause No. 82-CR 2231 of the 289th Judicial District Court, Bexar County, is reformed to read that applicant is “guilty of the offense of aggravated rape” only, and assessment of punishment at confinement for ten years for the offense of indecency with a child and imposition of sentence for a term of ten years for the latter offense are vacated and set aside. The Clerk of this Court shall forward a certified copy of this opinion to the Texas Department of Corrections.

WHITE, J., not participating.

TEAGUE, J., concurs in the result. He will later file a concurring opinion.

TEAGUE, Judge,

concurring.

Antonio Siller, applicant, asserts through a post-conviction application for writ of ha-beas corpus, see Art. 11.07, V.A.C.C.P., that his judgment of conviction for indecency with a child is void because it was founded upon an indictment which charged not only the offense of indecency with a child but also charged the offense of rape of a child.

Siller was convicted on a single indictment of the offenses of rape of a child and indecency with a child. The majority correctly holds that only one of his convictions is valid.

Notwithstanding that an indictment or information may contain as many distinct counts charging the same offense as is thought necessary by the prosecutor to meet the proof as it transpires, see Art. 21.24, V.A.C.C.P.; Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972), and the cases cited on page 571; Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Hicks v. State, 508 S.W.2d 400 (Tex.Cr.App.1974); Breeden v. State, 438 S.W.2d 105 (Tex.Cr.App.1969); Lewis v. State, 638 S.W.2d 148 (Tex.App.El Paso 1982) (P.D.R. Refused 1982), up until January 1, 1974, when the New Penal Code became effective, when a single indictment charged two or more distinct felonies in different counts, whether or not the offenses were property or non-property offenses, the accused could be convicted of only one count of the indictment. See Garcia v. State, 574 S.W.2d 133, 134 (Tex.Cr.App.1978); Santoscoy v. State, 596 S.W.2d 896 (Tex.Cr.App.1980); Crocker v. State, 573 S.W.2d 190 (Tex.Cr.App.1978); Jordan v. State, 552 S.W.2d 478 (Tex.Cr.App.1977); Beaupre v. State, 526 S.W.2d 811 (Tex.Cr.App.1975); Ex parte Easley, supra; Monroe v. State, 146 Tex.Cr.R. 239, 172 S.W.2d 699 (1943); Hufstetler v. State, 116 Tex.Cr.R. 175, 33 S.W.2d 461 (1930); Hill v. State, 109 Tex. Cr.R. 635, 6 S.W.2d 763 (1928); Nowells v. State, 94 Tex.Cr.R. 571, 252 S.W. 550 (1923); Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377 (1922); Crawford v. State, 31 Tex.Cr.R. 51, 19 S.W. 766 (1892).

In that instance, the State was required to elect which count of the indictment it intended to proceed on, abandoning the others, or the counts had to be considered by the fact-finder in a conditional manner. Whether trial was to the court or the jury, a verdict of guilty could be reached as to any count, but not more than one. The State was not, however, required to make an election, but if it did not, conditional submission was mandatory. See Jordan, supra; Koah v. State, 604 S.W.2d 156 (Tex.Cr.App.1980); Crocker, supra. Thus, the law as it existed prior to January 1, 1974, was clear: Whenever a single indictment charged two or more distinct felonies in different counts, and regardless of whether the offenses were property or non-property offenses, the accused could be convicted of only one count of the indictment. The above all inclusive rule of law remained the law of this State until the present Penal Code became effective on January 1, 1974.

However, Art. 21.24(a), V.A.C.C.P., in no uncertain terms now expressly provides that “Two or more offenses may be joined in a single indictment, information, or complaint, with each offense stated in a separate count, if the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code.” (My Emphasis.) V.T.C.A., Penal Code, Section 3.02(a) also provides in no uncertain terms that Penal defendants may be prosecuted in a single action for all offenses “arising1 out of the same criminal episode.” The term “Criminal Episode” is defined in V.T. C.A., Penal Code, Section 3.01, to mean “the repeated commission of any one offense defined in Title 7 of this Code (Offenses Against Property).” Thus, it is only in the instance when an indictment alleges multiple offenses, and such offenses are offenses against property, that multiple convictions may be obtained on a single indictment. In this instance, it is obvious that the offenses of aggravated rape: of a child and indecency with a child are not offenses against property, nor do they involve “the repeated commission of any one offense defined in Chapter 7 of the Penal Code (offenses against property).” Thus, in this instance, the offenses of aggravated rape of a child and indecency with a child were improperly joined by the State in the same indictment in this cause, and, under the above rules of law, there can only be one valid conviction.

However, if the judgment of conviction can be reformed, it will be reformed to reflect conviction on only one count of the indictment. Barr v. State, 100 Tex.Cr.R. 533, 271 S.W. 624 (1925). In this instance, it is possible to reform Siller’s judgment of conviction to reflect that he stands convicted and sentenced only for the offense of aggravated rape of a child, which was the first verdict that the jury returned in this cause. Thus, the majority correctly reforms applicant’s judgment of conviction.

Notwithstanding that I agree with the majority that it has reached the correct result in this cause, I also find that it is unfortunate that unnecessary and weedy language has cropped into the opinion. I believe that in this instance this happened when the author of the opinion was attempting to answer some outlandish, ridiculous, asinine, or outrageous suggestion that one of the parties to the lawsuit made, perhaps, under the guise that you never know what spoiled and damaged goods the Court might be buying on that particular day. In this instance, this cause is governed by the provisions of Art. 21.24, V.A. C.C.P., and this Court’s past decisions interpreting and construing the present statute as well as its predecessors. Notwithstanding some weedy language in the majority opinion, the Court reaches the correct result in holding that Siller, the applicant, was subject to only one punishment.

However, if it was formerly well established that multiple sentences for non-property offenses could not be obtained on separate counts in the same indictment, then how can one square up what the Court holds in this cause with what this Court held in Drake v. State, 686 S.W.2d 935 (Tex.Cr.App.1984.) If the “failure to demand an election or to protest conviction for each separate offense” precludes a defendant from complaining on appeal or by way of post-conviction writ of habeas corpus, see Drake v. State, supra, then why does applicant Siller obtain any relief in this cause? Drake v. State, supra, was wrongly decided.

Whenever a single indictment charges two or more distinct non-property felonies in different counts, the accused may be convicted of only one count. Gordon v. State, 633 S.W.2d 872 (Tex.Cr.App.1982); Garcia v. State, supra; Beaupre v. State, supra; Ex parte Easley, supra; Monroe v. State, supra; Wimberley v. State, 94 Tex. Cr.R. 1, 249 S.W. 497 (1923). Failure to so treat multiple non-property counts in an indictment requires reversal even when the defendant does not raise the error on direct appeal. Such may be attacked in a collateral proceedings. Garcia v. State, supra; Beaupre v. State, supra; Ex parte Easley, supra.

For the above and foregoing reasons, I respectfully concur.

MILLER, J., joins.

      . Though Article 27.05, V.A.C.C.P. uses the term “criminal episode,” it is not defined in the procedural code. In the penal code "criminal episode” is defined only in V.T.C.A. Penal Code, § 3.01 — "the repeated commission of any one offense defined in Chapter 7 of this code (Offenses Against Property)" — and that definition is expressly just for purposes of Chapter 3. See Boutwell v. State, 653 S.W.2d 108, 110-111, n. 1 (Tex.App.—Austin 1983), review granted on other grounds and pending. Accordingly, unless Chapter 3 is implicated, and it is not here, practitioners and courts would be well advised to avoid loosely using the term. Drake v. State,—S.W.2d-(Tex.Cr.App. No. 148-84, delivered this day.)
      All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

      . The common law and Texas statutes from Old Code art. 626 through all its successors to Article 37.07, § 1(a) provided that the verdict in every criminal action "shall be general.” That meant that “where there are several counts in an indictment, on the bringing in by the jury of a general verdict the court will apply the verdict to any one of the several counts and order judgment and sentence accordingly.” Southern v. State, 34 Tex.Cr.R. 144, 29 S.W. 780, 781 (1895). Arnett v. State, 105 Tex.Cr.R. 132, 286 S.W. 989 (1926), collects many authorities for the proposition that "if there be two counts and both are submitted and a general verdict is returned the judgment [on one count] will be upheld.” And if one count is "good" and supported by sufficient evidence and the other is "bad" or not supported, “a general verdict is also proper, and would be assigned to the good count,” Boren v. The State, 23 Tex.App. 28, 4 S.W. 463, 466 (1887), With deference, carving had no such procedural aspect and Mr. Bishop, himself, regarded it as a "different question.” See Whitford v. State, 24 Tex.App. 489, 6 S.W. 537, at 538 (1887).

      . We note that in practical effect the "exception” seems to consume the clause following it, rendering the clause superflous.

      . The Blue Book proposed that assessing punishment be made a part of sentencing and, except for the jury recommending probation or the State seeking the death penalty, all sentencing, i.e., punishment was to be determined by the trial court. See id., "Sentencing Procedure,” articles 42.02-42.12, at 402-416. However, the Legislature retained the "alternate procedure" by which the court assessed punishment unless accused opted for a jury to do so. Thus subsection (c) applies equally to court and jury, and is consistent with the added requirement of subsection (c) of § 1 that separate verdicts be returned and, it would follow, that a trial court make separate findings of guilt.


author: CAMPBELL, Judge. TEAGUE, Judge,

text:
    Wilbert Carl WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 389-83.
    Court of Criminal Appeals of Texas, En Banc.
    March 20, 1985.
    Keith W. Marshall, Richardson, for appellant.
    Henry M. Wade, Dist. Atty., and W.T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
   ORDER ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

It now appearing that the decision to grant discretionary review was improvident, the Appellant’s petition for discretionary review is hereby dismissed.

CLINTON and MILLER, JJ., dissent.

TEAGUE, Judge,

dissenting.

I respectfully dissent to the majority’s decision to dismiss appellant’s petition for discretionary review on the ground that it was improvidently granted. It was not improvidently granted.

The Dallas Court of Appeals, in an unpublished opinion, on April Fool’s Day, 1983, see Williams v. State, (No. 05-81-01167-CR, April 1, 1983), erroneously held that the evidence was sufficient to sustain the verdict of the jury that Wilbert Carl Williams, appellant, was guilty of committing the alleged primary offense of burglary of a vehicle, allegedly belonging to Preston Burge, Jr. See V.T.C.A., Penal Code, Section 30.04.

The involved vehicle was actually a trailer that belonged to Ryder Truck Lines of Dallas. Burge was the Terminal Manager for Ryder. On December 22nd, appellant was found in exclusive, unexplained possession of merchandise, which had been put inside of the trailer between December 11th and December 22nd. Business records of Ryder reflect that many persons had the lawful right to enter the trailer during this period of time. There is no evidence that once placed inside of the trailer, the merchandise was never moved or removed from its location inside of the trailer, nor is there any evidence that the merchandise was not ever temporarily moved outside of the trailer in order to restructure or relocate the items of merchandise that had been placed inside of the trailer.

Did the prosecution establish beyond a reasonable doubt not only appellant’s guilt of the primary offense of burglary of the vehicle, but did it also exclude to a moral certainty every other reasonable hypothesis except that appellant, acting either individually or as a party, without the effective consent of Burge, the alleged owner of the vehicle, and with intent to commit theft, break into or enter Burge’s vehicle?

In arriving at its conclusion that the evidence was sufficient to establish appellant’s guilt, as well as to exclude any other reasonable hypothesis except appellant’s guilt of the primary offense of burglary of Burge’s vehicle, the Dallas Court of Appeals relied upon the following facts, which it implicitly or expressly asserted were undisputed: (1) someone without authority took from the inside of Burge’s vehicle personal property, and (2) that appellant later, but recently, was shown to have been in exclusive, unexplained possession of the property. It then held: “Evidence that the appellant had the exclusive, unexplained possession of property recently stolen is sufficient to sustain the conviction [for the alleged offense of burglary of a vehicle].” [Emphasis Added]. The court of appeals cited several cases as authority for its holding, namely: Williams v. State, 621 S.W.2d 613, 614 (Tex.Cr.App.1981); Ward v. State, 581 S.W.2d 164, 168 (Tex.Cr.App.1979); Bolden v. State, 504 S.W.2d 418, 419 (Tex.Cr.App.1974).

The main problem that I have with the opinion of the court of appeals is that other than appellant’s recent, unexplained possession of property that was unlawfully removed from the premises of Ryder Truck Lines, there is no independent evidence that a burglary of Burge’s vehicle ever occurred, nor is there any evidence to support the following implicit finding the court of appeals made, namely, that “the property was taken from (the inside of) trailer 83366 without authority.” Although it is undisputed that the property was removed from the premises of Ryder Truck Lines of Dallas without lawful authority, it is also undisputed that there is no evidence that on December 22nd, when the trailer was “sealed,” that the property was or had been previously unlawfully removed from inside of the trailer.

The decisions that the court of appeals cited as authority for its holding that appellant was the guilty perpetrator of the burglary of Burge’s vehicle do hold that if the defendant is charged with the offense of burglary and there is independent evidence that a burglary occurred and the defendant is found in recent, unexplained possession of property that came from the burglary, then the evidence will be sufficient to sustain the defendant’s conviction for the burglary.

The problem with the decisions that the court of appeals relies upon is that, in light of our facts, they are inapposite to correctly resolve appellant’s contention that the evidence is insufficient to establish either that a burglary of Burge’s vehicle occurred or that the evidence does not exclude, to a moral certainty, every reasonable hypothesis except appellant’s guilt for that burglary-

In Williams, supra, which was a burglary of an apartment case, the independent evidence reflected that a burglary of an apartment, from which personal property had been taken, occurred. It was also established that the defendant was found in recent, exclusive, unexplained possession of the stolen property. Thus, because not only was there independent evidence that a burglary had occurred, but that it was also established that the defendant was later, but recently, found in possession of property that had come from the burglary, the general rule of recent, unexplained possession of stolen property was properly invoked and applied by this Court in that cause, causing the evidence to be sufficient to sustain the verdict of the jury. In Ward v. State, supra, which involved the offense of credit card abuse, the independent proof established that motel rooms which the complaining witnesses had rented had been burglarized and credit cards were taken from the rooms without the effective consent of their owners. It was also established that on the very next day the defendant was found in possession of the credit cards. Using the principle that recent, exclusive, and unexplained possession of stolen property is sufficient to convict for the offense of burglary, this Court correctly held that the evidence was sufficient in that case to establish that the defendant was the perpetrator of the burglary offenses. In Bolden v. State, supra, the last case the court of appeals relied upon, the independent evidence established that there had been a burglary of a building and that a quantity of copper wire and fittings were taken from the burglarized premises. It was also established that the defendant and two other persons sold to another person the copper wire and fittings, which sale occurred recently after the burglary had been committed. This Court correctly held that the evidence was sufficient to show not only that the defendant had possession and control of the copper wire when he sold it, but that such recent, unexplained possession of the stolen property was sufficient proof to establish the defendant’s guilt for the offense of burglary. Also see Harris v. State, 656 S.W.2d 481, 483 (Tex.Cr.App.1983); Williams v. State, 621 S.W.2d 613 (Tex.Cr.App.1981); Mulcahey v. State, 574 S.W.2d 112 (Tex.Cr.App.1978); Vol. 8, Tex.Dig.2d, burglary key number 42(1).

Thus, as easily seen, in each of the above cases there was independent evidence that a burglary had occurred and additionally there was evidence that the accused was later, but recently, found in unexplained possession of property that had come from the burglary. But, as to the commission of a burglary, those are not our facts.

The record on appeal reflects that the State’s case was based totally upon circumstantial evidence. The jury was instructed that “this [was] a case depending for conviction on circumstantial evidence,” and was also instructed on the law of circumstantial evidence. The charge on circumstantial evidence reflects it is a carbon copy of the one found in the 1981 edition of McClung’s Jury Charges for Texas Practice, at page 260. Cf. Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1981) (On State’s Motion for Rehearing), (Charge on circumstantial evidence is no longer required to be given even when case rests solely on circumstantial evidence.)

In light of the instruction that was given the jury, before it could find appellant guilty of the offense of burglary of Burge’s vehicle, it had to exclude, to a moral certainty, every reasonable hypothesis except the appellant’s guilt.

It is undisputed in this cause that appellant was found in exclusive, recent possession of property that had been unlawfully removed from the premises of Ryder Truck Lines of Dallas between December 11th and December 22nd. The property had been consigned by Sue Ann, Inc., to Ryder for shipment to Magic Valley Development, Inc., located in Henderson, Tennessee, and The Fashion Shop, located in Fa-yetteville, Tennessee. Evidence which came from Ryder’s business records reflects that the boxes of merchandise of which appellant was found in possession on December 22nd had been loaded inside of a Ryder Truck Lines’ trailer sometime between December 11, 1979, and December 22, 1979, at 12:30 o’clock a.m., when the trailer was “sealed.” There is no evidence, however, either direct or circumstantial, that would allow anyone to infer or conclude that when the trailer was “sealed” that the merchandise was then inside of the trailer. There is also no evidence, either direct or circumstantial, that the “seal” that was placed on the back of the trailer on December 22nd at 12:30 o’clock a.m. was ever broken or disturbed. The business records themselves reflect that between December 11th and December 22nd many persons had the lawful right to enter the inside of the trailer.

The record clearly reflects that the prosecution did not present any evidence, or attempt to present any evidence, that would have conclusively established the fact that once the merchandise was placed inside of the trailer it was never, for any reason or purpose, moved from where it was put or thereafter removed from inside of the trailer to the outside of the trailer.

Thus, the circumstantial evidence that was presented by the prosecution will not permit one to' infer or conclude, as the court of appeals did, “that the property was taken from (the inside of) trailer number 83366 without authority.” Nor does the evidence permit one to infer that the prosecution excluded, to a moral certainty, every reasonable hypothesis except the appellant’s guilt.

Therefore, I must agree with appellant that “if in fact the items in question were stolen, then it is just as likely that they were stolen from outside the trailer in question rather than from inside of the trailer.”

Furthermore, but just recently, in Hardesty v. State, 656 S.W.2d 73, 76-77 (Tex.Cr.App.1983), this Court stated the following: “If a defendant is found in possession of recently stolen property and at the time of arrest fails to make a reasonable explanation showing his honest acquisition of the property, the factfinder may draw an inference of guilt ... [but] is not forced to convict the defendant, the burden of proof is not shifted, and the State must still prove each element of the crime beyond a reasonable doubt. See 19 Tex.Jur.3d, Criminal Law Sec. 715, p. 416... [T]he deduction of guilt drawn from a defendant’s recent and unexplained possession of stolen property is merely a circumstance of guilt and is not conclusive... Once the permissible inference arises, the sufficiency of the evidence must still be examined according to applicable direct or circumstantial evidence standards of appellate review since the inference is not conclusive... Once the permissible inference arises, sufficiency of the evidence must still be examined ... since the inference is not conclusive.” Also see Sutherlin v. State, 682 S.W.2d 546 (Tex.Cr.App.1984).

Because this was a circumstantial evidence case, in order to prove beyond a reasonable doubt that appellant burglarized Burge’s vehicle, it was incumbent upon the prosecution to establish beyond a reasonable doubt that without the effective consent of Burge, someone broke into or entered his vehicle, or any part of it, with intent to commit any felony or theft. See footnote 1, supra. As noted, recent, unexplained possession of stolen property, in and of itself, is sufficient to sustain a conviction for burglary — if it is also established that a burglary occurred and that the property the defendant was found in possession of came from the burglarized premises. But if there is no evidence that a burglary has been committed, even though it is shown that without authority the defendant was in recent, unexplained possession of property, such, standing alone, in and of itself, is not sufficient to establish appellant’s guilt of committing a burglary. Furthermore, in a circumstantial evidence case, if there is another, but just as reasonable, hypothesis than the defendant’s guilt, it is incumbent upon the prosecution to exclude such to a moral certainty.

In this instance, the prosecution did not establish beyond a reasonable doubt that a burglary of Burge’s vehicle ever occurred. It never established that the property found in appellant’s possession was taken from “the (inside of) trailer number 83366 without authority.” The prosecution never established beyond a reasonable doubt that the items appellant was found in possession of were removed from inside of the trailer in question in a burglarious or otherwise unauthorized manner.

Evidence from business records only establishes that the boxes of merchandise found in appellant’s possession were loaded inside of the trailer sometime between December 11th and December 22nd, at 12:30 o’clock a.m., at which time the trailer was “sealed.” There is also no evidence, either direct or circumstantial, that would have allowed the factfinder to draw the inference that when the trailer was “sealed” the boxes of merchandise were then inside of the trailer, and had remained inside of the trailer from the moment they were put inside of the trailer. It is just as reasonable to assume from the facts of this case that the boxes of merchandise were unlawfully taken from outside of the trailer as it is to assume that they were unlawfully removed from inside of the trailer.

I believe that all the prosecution has shown in this cause is the fact that without authority appellant was found in possession of the merchandise. The facts do not establish, either by direct or circumstantial evidence, a burglary of the trailer. Even if a burglary was proved, the prosecution did not exclude, to a moral certainty, every other reasonable hypothesis except that appellant committed the burglary, either individually or as a party.

I submit that from the facts the prosecution presented, no rational trier of fact could find beyond a reasonable doubt that the involved vehicle was burglarized, or, if it could so find beyond a reasonable doubt, I further submit that the evidence did not permit the jury to conclude or infer that the prosecution excluded, to a moral certainty, every other reasonable hypothesis except the appellant’s guilt.

Appellant’s petition for discretionary review should be granted, and not dismissed as having been improvidently granted. Therefore, I must respectfully dissent.

      . V.T.C.A., Penal Code, Section 30.04(a) provides that a person commits the offense of burglary of a vehicle if, without the effective consent of the owner, he breaks into or enters a vehicle or any part of a vehicle with intent to commit any felony or theft. The word "vehicle" is defined by statute to mean the following: "[A]ny device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as ‘habitation.’ ” V.T.C.A., Penal Code, Section 30.01(3). The word “habitation” is defined by V.T.C.A., Penal Code, Section 30.01, but such definition does not play any part in this cause.

      . "[The] seal [was] a plastic device approximately 8 to 10 inches long that states 'Ryder Truck Lines,’ and it has a six-digit number on it for identification purposes... It's a device — ... it’s a piece of plastic that interlocks with its opposite end and it obviously is so constructed that it couldn't keep anybody out, but it’s a security device to let us know in the event ihat something has happened to that trailer door.”