author: WARREN, Justice.

text:
    Dewey M. CLARK, Appellant, v. WALKER-KURTH LUMBER COMPANY, Appellee.
    No. 01-84-0696-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 14, 1985.
    Rehearing Denied April 18, 1985.

      J. James Luck, Houston, for appellant.
    Margaret Garner Mirabel, Eric B. Zwie-bel, Mirabel & Associates, Houston, for appellee.
    Before DUGGAN, HOYT and WARREN, JJ.
   OPINION

WARREN, Justice.

This is an appeal from a judgment for the creditor in a suit tried without a jury on a guaranty agreement. Walker-Kurth Lumber Company (Walker-Kurth) sued appellant in his capacity as guarantor for the unpaid debts at Clareo, Inc., a Texas corporation. Appellant brings seven points of error, alleging: (1) that the trial court erred in holding him liable under the guaranty agreement beyond the sum guaranteed; (2) that the terms of the guaranty agreement were not complied with resulting in a failure of consideration of the guaranty and his discharge as guarantor; (3) that the trial court abused its discretion in refusing to allow his trial amendments; (4) that the trial court erred in admitting certain business records into evidence; and (5) that the trial court erred in awarding prejudgment and postjudgment interest at a rate of eighteen percent per annum.

In 1976, appellant formed Clareo, Inc. to conduct international sales of oilfield equipment. Clareo, Inc. expanded its operations in 1978 to include export forwarding and crating. On September 6, 1978, Clareo, Inc. submitted a credit application to Walker-Kurth to finance the acquisition of supplies for the crating operations. The application listed appellant and two employees as authorized buyers. Additionally, the instrument stated that in the event of delinquency in the account, the debtor agreed to “pay interest at the full legal rate.”

On the same day appellant executed an “Individual Personal Guaranty” stating:

I, Dewey M. Clark ... for and in consideration of your extending credit at my request to Clareo, Inc. (hereinafter referred to as the “Company”) ... personally guarantee to you the payment ... of any obligation of the Company and I hereby agree to bind myself to pay you on demand any sum which may become due to you by the Company whenever the Company shall fail to pay the same. It is understood that this guaranty shall be a continuing and irrevocable guaranty and indemnity for such indebtedness of the Company. I do hereby waive notice of default, non-payment and notice thereof and consent to my modification or renewal of the credit agreement hereby guaranteed.
/s/ Dewey M. Clark

At some time after appellant submitted the credit application and personal guaranty to Walker-Kurth, a notation was made in the margin of the credit application: “OK $1000 limit/GDJ.” George D. Jones was credit manager of Walker-Kurth in September of 1978.

From 1978 to 1982, Clareo, Inc. continued to use lumber for crating. Purchases were made on the Clareo, Inc. account at Walker-Kurth and by February 19, 1982, the account had an unpaid balance of $26,138.57. Also during this period, several changes were made in Clareo, Inc.’s management including appellant’s resignation and subsequent reappointment as president, and the formation of a separate corporation for equipment crating and forwarding. In May 1982, Clareo, Inc. filed bankruptcy in the United States Bankruptcy Court for the Southern District of Texas.

Appellant’s primary contention on appeal is that the trial court erred, as a matter of law, in expanding his obligation beyond the $1000 credit limit added to the credit application by Walker-Kurth’s credit manager. In related points of error, appellant argues that appellee breached the terms of the credit agreement by allowing purchases in excess of the credit limit and without the authorization of either appellant or another “authorized buyer.” Appellant concludes that the breach of the credit agreement resulted in a failure of consideration of the guaranty.

The issues before this court turn primarily on the interpretation of the credit contract and appellant’s guaranty. In particular, the court must reconcile appellant’s guaranty of “any obligation” of Clareo, Inc. and his claim that the credit limit notation was intended to limit his liability as guarantor.

In analyzing the agreements in this case we should note preliminarily that the rules of interpretation of guaranty agreements are well established. Where uncertainty exists as to the meaning of a contract of guaranty, and where two reasonable constructions may be made, the reviewing court will apply the construction more favorable to the guarantor. The rule of strictissimi juris is applied to refrain from extending the guarantor’s obligation by implication beyond the written terms of the agreement. Coker v. Coker, 650 S.W.2d 391, 394 n. 1 (Tex.1983); Reece v. First State Bank of Denton, 566 S.W.2d 296, 297 (Tex.1978); McKnight v. Virginia Mirror Company, 463 S.W.2d 428, 430 (Tex.1971); Commerce Savings Association of Brazoria County v. GGE Management Co., 539 S.W.2d 71, 77-78 (Tex.Civ.App.—Houston [1st Dist.]), modified and aff'd per curiam, 543 S.W.2d 862 (Tex.1976); Southwest Savings Association v. Dunagan, 392 S.W.2d 761, 766-67 (Tex.Civ.App.—Dallas 1965, writ ref’d n.r.e.).

Similar claims to appellant’s were raised and rejected in Lenamond v. North Shore Supply Company, 667 S.W.2d 283 (Tex.App.—Houston [14th Dist.] 1984, no writ). In Lenamond, the appellant executed a guaranty agreement to enable his company to purchase materials on open account from the appellee. Lenamond, the guarantor, argued that a handwritten credit limit of $2,500 limited his personal liability to that amount. In rejecting the argument the court held:

First, it is clear that the guarantors did not intend to limit their liability to $2,500 under the guaranty because the credit application which contains the guaranty requests credit for $10,000 on August 13, 1978. Thus the guarantors expressed a willingness to guarantee indebtedness up to at least $10,000. The $2,500 credit limit was approved by the appellee after the credit application was made and did not constitute part of the guaranty agreement. We believe that the “indebtedness hereunder” language referred to all credit obtained through the credit application rather than to credit limitations imposed by the appellee which were subject to change. In this case the appellee later revoked the credit limit by extending Norwest Fabricating Company credit beyond the initial $2,500 credit limit. Second, the guaranty expressly states no notice of indebtedness or extension of credit hereafter contracted or extended need be given to the guarantors. Generally, if parties to a loan materially alter the terms, the guarantors will be discharged unless they are given notice and consent to the change in terms. Straus-Frank Co. v. Hughes, 138 Tex. 50, 156 S.W.2d 519 (1941). The guarantors in this case have impliedly agreed that alteration would not result in discharge by agreeing that the terms of the debt may be altered without giving notice to them.

Lenamond, 667 S.W.2d at 286 (emphasis added). Appellant contends that the Lenar mond case is distinguishable because, in the case at bar, there is no evidence of appellant’s intent to guaranty the indebtedness of the corporation beyond the written credit limitation. He also argues that the Lenamond court ignored the application of section 2.207 of the Business and Commerce Code by holding that the credit limit was not part of the guaranty.

On our facts it would be unreasonable to conclude that the credit limit of $1000 is an enforceable limit on appellant’s liability as guarantor. First, it is clear that appellant, the guarantor, did not intend to limit his liability to $1000. Nothing in the record demonstrates that appellant requested any limitation on his personal liability. To the contrary, appellant admits signing the guaranty before the addition of the credit limit notation. Moreover, the clear language of the guaranty states that he guaranteed payment of “any obligation” of Clareo, Inc. Lenamond, 667 S.W.2d at 286.

Second, appellant’s argument that the $1000 limit became part of the guaranty agreement under the rules of section 2.207 is without merit. The $1000 limit was a limit on credit to be extended Clareo, Inc., and clearly was not intended to limit the guarantor’s liability. Where the contract between the creditor and principal debtor limits the obligation of the former to extend credit to the latter up to a specified amount, such limitation does not condition the contract by which the guarantor agrees to guaranty the payment of all credit extended to the debtor. Moreover, the liability of the guarantor is not limited to the amount of credit specified or discharged by the extension of more credit than the amount specified. See Missouri Farmers Association v. Coleman, 676 S.W.2d 855 (Mo.App.1984); Bay Oil Co. v. Vilas, 237 Wis. 603, 296 N.W. 595 (1941); 38 C.J.S. Guaranty § 356, p. 1211.

Third, appellant is incorrect in asserting that the terms of the credit agreement were breached and he was discharged as guarantor when appellee allowed purchases to be made by persons other than the “authorized buyers” listed on the credit agreement. Appellant agreed to remain liable for any debts incurred by Clareo, Inc. in purchasing goods from Walker-Kurth. Appellant’s guaranty was thus continuing and unconditional. Sufficient evidence was introduced at trial to establish the debt of Clareo, Inc. to Walker-Kurth. Moreover, in concluding that Walker-Kurth did not breach the credit agreement by allowing purchases in excess of $1000 or by persons other than the authorized buyers, we necessarily conclude that there was no failure of consideration of the guaranty agreement.

We are not extending appellant’s obligation or faltering in our application of stric-tissimi juris since appellant intended his guaranty to be unconditional. Appellant is thus liable for the entire indebtedness of Clareo, Inc. to Walker-Kurth.

Appellant’s first, second, third, and fifth points of error are overruled.

Appellant next contends that the trial court erred in refusing to allow him to amend his pleadings at trial. Appellant’s trial amendments asserted the affirmative defenses of Walker-Kurth’s failure to fulfill all conditions precedent and material modification of “the agreement.”

Rule 66 of the Texas Rules of Civil Procedure states in pertinent part:

If evidence is objected to at the trial on the ground that it is not within the issues made by the pleading ... the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense on the merits.

Tex.R.Civ.P. 66. Our courts favor a liberal construction of the rule and uniformly hold that trial amendments should be allowed whenever the interests of justice are served. See Putter v. Anderson, 601 S.W.2d 73 (Tex.Civ.App.—Dallas 1980, writ ref’d n.r.e.). An appellate court will not disturb the decision of a trial court to allow or refuse a trial amendment, however, unless such decision is a clear abuse of discretion. Schrader v. Artco Bell Corp., 579 S.W.2d 534 (Tex.Civ.App.—Tyler 1979, writ ref'd n.r.e.). The reviewing court will determine whether the trial court abused its discretion by examining the entire record. Alamo Ambulance Service, Inc. v. Moulton, 402 S.W.2d 200, 205 (Tex.Civ.App.—San Antonio 1966), aff'd and rev’d in part, 414 S.W.2d 444 (Tex.1967).

Here, the record shows that Walker-Kurth received notice before trial that appellant planned to amend his pleadings. When appellant’s counsel exceeded the bounds of the pleadings during cross examination, appellee’s counsel objected to the questioning. At that point, appellant’s counsel offered his first trial amendment. After lengthy argument, the court took the matter under submission and adjourned. The following day, the court overruled appellant’s motion to amend the pleadings. Prior to presentation of his case-in-chief, appellant moved to have certain amendments made, again alleging failure of the conditions precedent of “the agreement.” The amendments were again rejected.

Appellee pointed out at trial and urges on appeal that local rules for the district courts of Harris County prohibit amending pleadings after a cause has been certified for trial. See Harris Co.Dist. Civ.R. 3c(4) (1983). This rule must, however, be read in conjunction with rule 166(g) of the Texas Rules of Civil Procedure which allows modification of pretrial orders to prevent manifest injustice.

The issue on appeal is therefore whether the trial court abused its discretion by precluding appellant from asserting affirmative defenses and thus preventing consideration of the merits of the case at bar. We conclude that the trial court did not abuse its discretion in refusing to allow amendments to pleadings because evidence sufficiently demonstrated that the corporation owed the debt and the “presentation of the merits” would not have been subserved by the allowance of amendments. See Durham v. Uvalde Rock Asphalt Company, 599 S.W.2d 866, 870 (Tex.Civ.App.—San Antonio 1980, no writ); Harberson v. Lawhon, 518 S.W.2d 840, 841 (Tex.Civ.App.—Fort Worth 1975, no writ). Moreover, even if the trial court committed error in refusing the amendment, that error would not amount to such a denial of appellant’s rights that it would be considered reasonably calculated to cause and probably caused the rendition of an improper judgment in the case. See Tex.R.Civ.P. 434; Knolle v. Hunt, 551 S.W.2d 755, 763 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r.e.).

Appellant’s fourth point of error is overruled.

Appellant contends in his sixth point of error that the trial court erred in admitting into evidence plaintiff’s exhibit 7-A containing a billing statement and invoices as proof of the indebtedness of Clareo, Inc. Appellant argues that appellee did not establish the foundation for the introduction of business records under rule 803(6) of the Texas Rules of Evidence.

At trial, Robert Fountain, credit manager of Walker-Kurth, described his company’s customary practices in documenting sales and in billing customers. Mr. Fountain was not employed by Walker-Kurth at the time of the creation of the subject documents but was familiar with and testified to the usual method of invoice generation: a salesperson receives a customer’s order, feeds the order into a computer terminal, prints out a five-part typed invoice, and gives the invoice to the shipping department for collection and delivery of the goods. The customer then signs the invoice, either upon delivery by Walker-Kurth or when the customer leaves the lumber yard transporting the goods himself. Mr. Fountain also testified that once the invoices were generated, and after receipt of the goods, the invoices were torn apart and copies were sent to various corporate departments at Walker-Kurth. Mr. Fountain did not testify as to the procedure for creating the statement, or summary of unpaid invoices, but appellant did not separately attack the admissibility of the statement at trial. Counsel for appellant objected generally to the introduction of exhibit 7-A on the ground that “the personal knowledge requisite” of rule 803(6) was not demonstrated.

Rule 803(6) provides:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. “Business” as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex.R.Evid. 803(6).

Appellant contends that Fountain’s general description of the procedures for creating the records failed to establish that these particular invoices were generated at or about the time of the sale by a person with knowledge of the sale. Appellant also contends that the statement portion of exhibit 7-A constituted a “summary” of business records and that appellee failed to lay the proper predicate for introduction of a summary.

First, appellant cannot enlarge his complaint on appeal to include the arguments that the invoices were not generated at or near the time of the transaction and that appellee failed to lay the proper predicate for introduction of a summary of business records. See Pfeffer v. Southern Texas Laborers’ Pension Trust Fund, 679 S.W.2d 691 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.); Roylex, Inc. v. Arco Community Developers, Inc., 559 S.W.2d 833, 837 (Tex.Civ.App.—Houston [14th Dist.] 1977, no writ). His complaint regarding the admissibility of the records related to the personal knowledge requirement of the rule.

Second, Fountain’s testimony sufficiently established that invoices are prepared by salesmen with knowledge of the transaction, that the supplies cannot be collected for pick-up or delivery without an invoice specifying the materials needed, and that each invoice was signed by the party receiving the goods.

The predicate for admissibility under rule 803(6) is sufficiently established if it is demonstrated that the documents are records that are generated pursuant to a course of regularly conducted business activity and that the records are, as a practical matter, always created by or from information transmitted by a person with knowledge, at or near the time of the event. The trial judge shall determine from all the evidence offered whether the personal knowledge required by rule 803(6) is present. La Freniere v. Fitzgerald, 669 S.W.2d 117, 119 (Tex.1984); Marquis Construction Co., Inc. v. Johnson Masonry, 665 S.W.2d 514, 516 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.). In reviewing the trial court’s ruling, our task is only to determine whether there was a sufficient evidentiary basis for the court’s determination. Marquis Construction, 665 S.W.2d at 516. We conclude that Mr. Fountain’s testimony was sufficient to establish the predicate for the admission of the invoices.

Finally, we conclude that the billing statement was erroneously admitted since Mr. Fountain gave no testimony as to how billing statements are created. Any error in the admission of the statement, however, was harmless since there was other competent evidence in the record to support the judgment. Tex.R.Civ.P. 434; Mandril v. Kasishke, 620 S.W.2d 238, 249 (Tex.Civ.App.—Amarillo 1981, writ ref’d n.r.e.).

Appellant’s sixth point of error is overruled.

Appellant contends in his final point of error that the trial court erred in awarding Walker-Kurth prejudgment and postjudgment interest at the rate of eighteen percent per annum. The credit agreement contained the following provision:

I/we agree to pay interest at the full legal rate and any reasonable collection or legal fee incurred by Walker-Kurth Lumber Company to collect any delinquent amount.

Appellant argues that the following statute applies:

When no specific rate of interest is agreed upon by the parties, interest at the rate of six per cent per annum shall be allowed on all amounts and contracts ascertaining a sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.03 (Vernon Supp.1967). Appellee contends that the term “full legal rate” indicates the parties’ intent to have prejudgment and postjudgment interest accrue at eighteen percent per annum, as specified in the following provision:

All judgments of the courts of this State based on a contract that provides for a specific rate of interest earn interest at a rate equal to the lesser of:
(1) the rate specified in the contract
(2) 18 percent.

Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 (Vernon Supp.1983) (emphasis added).

We hold that both prejudgment and post-judgment interest should have been awarded at the rate of 10% per annum.

The phrase “full legal rate,” contained in the 1978 credit agreement is specific enough to show an agreement under article 5069-1.04 (1967), the law then in effect, which provided that parties may agree to any rate of interest not exceeding 10% per annum on the amount of the contract. Further, the phrase is specific enough to show that the parties intended that appellant pay interest on delinquent accounts at the highest rate allowable by law on the date of the agreement. Therefore, the judgment should have awarded prejudgment interest at the rate of 10% per an-num.

Since we have concluded that there was a valid contract regarding interest, the rate of postjudgment interest is governed by article 5069-1.05 which allows interest at the lesser of the rate specified in the contract or 18 per cent per annum. Although no specific numerical rate was specified in the contract, our determination that the parties intended that the interest rate on delinquent accounts would be the highest rate allowable on the date of the contract requires that postjudgment interest of 10% be awarded.

We acknowledge and respect the holding in Jetty, Inc. v. Hall-McGuff Architects, 595 S.W.2d 918 (Tex.Civ.App.—Houston [14th Dist.] 1980, no writ), but we are of the opinion that the term “full legal rate” used in the contract in our case is more definite and ascertainable than the term “legal rate” used in the Jetty contract.

The judgment is reformed to allow appellant prejudgment and postjudgment interest at the rate of 10%; in all other respects, the judgment is affirmed.


source: Caselaw Access Project

author: DICKENSON, Justice.

license: Public Domain

text:
    Thomas P. LOVE et al, Appellants, v. ZALES CORPORATION, INC. et al, Appellees.
    No. 11-84-260-CV.
    Court of Appeals of Texas, Eastland.
    March 21, 1985.
    Rehearing Denied April 25, 1985.

      Charles A. Deason, Robert D. Earp, Schwartz, Earp, McClure, Cohen & Stewart, El Paso, for appellants.
    Kevin J. Keith & C. Edward Fowler, Jr., Bailey & Williams, Dallas, Dennis L. Richard, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellees.
   DICKENSON, Justice.

This is a summary judgment case where the trial court agreed with defendants that: (1) the negligence cause of action was barred by the two-year statute of limitations; and that (2) the plaintiffs’ pleadings alleged facts which negate their causes of action for breach of contract and for breach of express and implied warranties. Plaintiffs appeal, arguing: (1) the “discovery rule” should apply to their negligence cause of action; and (2) their pleadings state causes of action founded on breach of warranty in the sale of goods and for breach of contract, neither of which are barred by the applicable four-year statute of limitations. We affirm the summary judgment.

The lawsuit was filed on October 21, 1982, for the wrongful death of Theresa Love and for personal injuries to Louise Love and Cliff O’Gurian. The pleadings and the undisputed facts show that Ronald P. Love used a Winchester shotgun on April 18, 1979, to kill his mother, Theresa, and to wound his sister, Louise, and his brother-in-law, Cliff O’Gurian. The Winchester shotgun had been purchased from defendants on October 26, 1978.

The pleadings and the undisputed facts also show that when Ronald P. Love purchased the shotgun, he disclosed on the “Firearms Transaction Record” that he had “been committed to a mental institution.” See the Appendix to this opinion. Even though the form clearly states that a person who answers that question in the affirmative “is prohibited by Federal law from purchasing and/or possessing a firearm,” the salesclerk completed the form and sold the shotgun. The salesclerk was clearly negligent in selling the shotgun to a person who disclosed that he had previously been committed to a mental institution.

Plaintiffs have briefed three points of error. In their first two points, they argue that the trial court erred in granting summary judgment because their pleadings stated a cause of action: (Point one) founded on breach of warranty in the sale of goods to which the four-year statute of limitations of the Uniform Commercial Code applied; and (Point two) founded on breach of a written contract, as to which they were third party beneficiaries.

These points of error raise the question as to whether summary judgment on the pleadings is proper or if the matter should have been developed through special exceptions. See Texas Department of Corrections v. Herring, 513 S.W.2d 6 at 10 (Tex.1974):

This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings, as here, fail to state a cause of action.

Even so, Herring recognizes the fact that: “a party may plead himself out of court; e.g., the plaintiff may plead facts which affirmatively negate his cause of action.” 513 S.W.2d at 9. Even though they attempt to assert breach of implied and express warranties under TEX.BUS. & COM. CODE ANN. secs. 2.313, 2.314 and 2.315 (Vernon 1968), the facts which they have pleaded show that there was no breach of warranty. There was nothing wrong with the shotgun. See Hulsebosch v. Ramsey, 435 S.W.2d 161 at 164 (Tex.Civ.App.—Houston [14th Dist.] 1968, no writ); Hulsman v. Hemmeter Development Corp., 65 Hawaii 58, 647 P.2d 713 at 721 (1982). Of course, if the shotgun had been defective, there would have been a breach of warranty. See International Armament Corporation v. King, 686 S.W.2d 595 (Tex.1985). Point One is overruled.

The “Firearms Transaction Record” shown in the Appendix is not a contract. Therefore, plaintiffs cannot be third party beneficiaries of a written contract. Consequently, TEX.REV.CIV.STAT.ANN. art. 5527 (amended August 27, 1979) is not applicable. Point two is overruled.

In their third and final point of error, plaintiffs argue that the trial court erred in granting the summary judgment “in that the discovery rule is applicable to plaintiffs’ cause of action founded on negligence.” We decline plaintiffs’ invitation to extend the discovery rule. See Otis v. Scientific Atlanta, Inc., 612 S.W.2d 665 at 666 (Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.):

The existence of a cause of action was not concealed, and defendant was under no duty to disclose its identity to plaintiffs.

Plaintiffs knew they had been injured when the shootings occurred. They were aware that their mentally deranged relative had obtained a shotgun from someone and that he had shot his mother, his sister and his brother-in-law. While they pursued their claims against the psychiatrists and the mental institution which had treated their relative, they apparently made no effort to ascertain where he obtained the shotgun. Months later they were told by the mental patient’s personal attorney that Ronald had bought the shotgun from defendants.

All of the cases cited by plaintiffs in connection with the “discovery rule” are factually distinguishable. See Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), where the Supreme Court said: “Our holding here is limited to causes of action in which a physician leaves a foreign object in the body of his patient.” The recent ease of Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984), deals with the “open courts provision,” TEX.CONST. art. I, sec. 13, which prevents the legislature from “cutting off a cause of action before the party knows, or reasonably should know, that he is injured.” The Love family knew that it had been injured on the date of the shootings, far more than two years before this lawsuit was filed. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976), deals with a false credit report and the one-year statute of limitations for libel and slander. The third point of error is overruled.

The judgment of the trial court is affirmed.

      . This appeal was transferred from the El Paso Court of Appeals to this Court on November 20, 1984. See TEX.REV.CIV.STAT.ANN. art. 1738 (Vernon Supp.1985).

      . The plaintiffs are Thomas P. Love, Individually and as Executor of the Estate of Theresa Love, Deceased; Thomas P. Love, Jr., Jean E. Love, Joan E. O'Gurian, Louise Love, and Donald P. Love, sole heirs of Theresa Love, Deceased; Louise Love, Individually; and Cliff O’Gurian, Individually.

      . The salesclerk who sold the gun is Peter Ar-duini. He was employed by Cullum & Boren, Inc. which was owned at that time by Zales Corporation, Inc. That subsidiary corporation was subsequently sold by Zales Corporation, Inc. to Oshman’s Sporting Goods, Inc. The salesclerk and all three corporations are named as defendants in this case.

      . The sale was a violation of federal law. See 18 U.S.C. sections 921-928. The purchaser and the salesclerk were subject to fine and imprisonment.

      . If plaintiffs had a cause of action for breach of warranty under Sections 2.313, 2.314 or 2.315 of the Business and Commerce Code, supra, it would not be.barred by limitations. See Garcia v. Texas Instruments, Inc., 610 S.W.2d 456 at 465 (Tex.1980).

      . This report is required by 18 U.S.C. sections 921-928.


author: THOMAS, Justice.

text:
    ROBINSON MACHINERY COMPANY, INC., a Texas Corporation, Appellant, v. Jeff DAVIS, Appellee.
    No. 10-84-110-CV.
    Court of Appeals of Texas, Waco.
    March 21, 1985.
    Rehearing Denied April 18, 1985.

      Vance Dunnam, Dunnam, Dunnam, Hor-ner & Meyer, Waco, for appellant.
    James E. Wren, Waco, for appellee.
   OPINION

THOMAS, Justice.

This is a Deceptive Trade Practices Act (DTPA) case. Plaintiff-Appellee, Jeff Davis, sued Defendant-Appellant, Robinson Machinery Company, Inc. (Robinson Machinery), for damages to his tractor. The damages were allegedly caused when Robinson Machinery attempted to repair the tractor. The jury found that Robinson Machinery’s failure to perform its work in a good and workmanlike manner was a producing cause of $3500 damage to Davis’ tractor. The court entered judgment for $5500, which was the amount of Davis’ actual damages plus two times the first $1000 of actual damages, as authorized by Tex.Bus. & Comm.Code Ann. § 17.50(b)(1) (Supp.1985). Robinson Machinery claims on appeal that the court should have entered judgment against Davis because the damage issue was improperly submitted and Davis failed to obtain a jury finding on a proper measure of damages. We affirm.

On September 10, 1980, Davis took his tractor to Robinson Machinery to have the clutch repaired and to have a new pump installed on the rear power lift. He picked up the tractor on September 24; however, the power lift would not function properly. Davis drove the tractor back to Robinson Machinery on four subsequent occasions for repairs but the power lift still would not function properly. When Davis returned the tractor to Robinson Machinery the final time for repairs, a mechanic dismantled the engine. Davis then discovered that pieces of metal had chipped away and damaged the gears and bearings. After being told that it would cost $6000 to completely repair the tractor, Davis decided to trade it in rather than repair it. He traded the tractor for another tractor in March 1981. Davis sued Robinson Machinery to recover the difference between the trade-in value of the tractor in its damaged condition and the trade-in value if Robinson Machinery had repaired it as promised and warranted. At trial, Davis’ expert witness testified that the metal chips would cause damage to other vital parts. The metal chips would contaminate the oil system and clog the filter, causing a malfunction of the hydraulic system operating the rear power lift. According to the expert witness, this condition would also cause a continuing deterioration of the whole tractor.

In its first three points of error, Robinson Machinery claims that the trial court submitted an improper measure of damages. The following damage issue was submitted to the jury:

Find from a preponderance of the evidence the difference, if any, between what the cash market value of the tractor was at the time of its trade-in by Jeff Davis, and what the cash market value of the tractor would have been at the time of the trade-in if the work by Robinson Machinery Company, Inc., had been performed in a good and [workmanlike] manner, if applicable, or as warranted, if applicable, or as represented, if applicable.

The parties agree that the proper measure of damages was the difference between the value of the property immediately before and after the injury. Their real dispute is over when the injury took place. Robinson Machinery’s argument is essentially that any injury occurred at the time of repair, and therefore, the difference in value should have been determined immediately after Robinson Machinery attempted to repair the tractor. Davis, however, claims that the injury was a continuing one, which continued to cause damage until he traded in the tractor. Davis thus argues that the difference in value should have been determined at the time of the most distant injury, i.e. at the time of trade-in.

The DTPA provides for the recovery of “actual damages” which are produced by a DTPA violation. Tex.Bus. & Comm.Code Ann. § 17.50(a) (Supp.1985). The DTPA does not define actual damages; however, the Supreme Court has defined actual damages as those recoverable at common law. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). At common law, when one isolated event does not cause all of the damage to property, but rather the total damage is the result of a continuing cause, the difference in value is not determined immediately after the damage begins. Burns v. Lamb, 312 S.W.2d 730, 734 (Tex.Civ.App.—Fort Worth 1958, writ ref'd n.r.e.). When there is a continuing cause of damage, measuring the difference in value immediately after the damage starts would be unduly restrictive and would not fully compensate the plaintiff for his loss. The court in Lamb recognized that the first damage may not be the last nor the greatest amount of damage, and that damage from a continuing cause necessarily becomes greater than when the damage first begins. Id. Under such circumstances, the courts have recognized a more flexible rule. See, e.g., id.; Longwell Transfer v. Elliott, 267 S.W. 346 (Tex.Civ.App.—El Paso 1924, writ ref’d) (holding a warehouseman liable for the progressive deterioration of goods which he allowed to get wet and not merely for the damage caused when the goods initially got wet). In Salais v. Martinez, 603 S.W.2d 296 (Tex.Civ.App.—El Paso 1980, no writ), the court recognized this common law rule and applied it to a DTPA case. After concluding that the failure to make repairs was a continuing cause of breach, the court in Salais allowed the amount of damages to be calculated eleven months after the defendant originally failed to make repairs. Id.

Davis introduced evidence to show that Robinson Machinery’s conduct was a continuing cause of the damage to his tractor, and based on this evidence, the jury found that Robinson Machinery failed to repair the tractor in a good and workmanlike manner as it had represented and warranted that it would do. Thus, because the injury to the tractor was a continuing one, we hold that the difference in the market value of the tractor at the time of trade-in was a proper measure of damages. Points one, two and three are overruled.

In its fourth point of error, Robinson Machinery claims that the court erred when it denied its motion for judgment, because Davis failed to obtain a finding on any legal measure of damages. Having concluded that the measure of damages was proper, we overrule point four.

The judgment is affirmed.


author: JACK SMITH, Justice.

text:
    GEOCHEM LABORATORIES, INC., Appellant, v. BROWN & RUTH LABORATORIES, INC., et al., Appellees.
    No. 01-84-0760-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 28, 1985.
    Rehearing Denied April 25, 1985.

      Van E. McFarland, Michol O’Connor, McFarland & Tondre, Houston, for appellant.
    Barry H. Richardson, Scott Douglas Cunningham Wood, Lucksinger & Epstein, Houston, for appellees.
    Before BASS, HOYT and JACK SMITH, JJ.
   OPINION

JACK SMITH, Justice.

The principal issue in this appeal is whether a trial court, after sustaining special exceptions to the plaintiff’s petition, erred in dismissing the plaintiff’s suit without affording the plaintiff an opportunity to amend its petition.

After plaintiff, Geochem Laboratories, filed this suit, the defendants’ special exceptions were sustained. The plaintiff amended its petition three times, and the defendants filed special exceptions after each amendment. Following a hearing on the defendants’ special exceptions to the Plaintiff's Third Amended Original Petition, the court ordered “that all of said Special Exceptions should be sustained. Accordingly, it is ordered, adjudged, and decreed that Special Exceptions I, II, III, IV, V, VI, VII, and VIII are hereby sustained and Plaintiff’s suit against Defendants is hereby dismissed.” The court stated no reasons for the dismissal.

It is well settled that when special exceptions are sustained, the pleader has two options: (1) he may, as a matter of right, amend his petition, or (2) he may refuse to amend and thereby test the validity of the ruling on appeal. Davis v. Quality Pest Control, 641 S.W.2d 324, 328 (Tex.App.—Houston [14th Dist.] 1982, writ ref d n.r.e.). If the pleader refuses to amend his pleading, the trial court may by further order either strike the objectionable portion of the pleading, see Ship Ahoy, Inc., v. Whalen, 347 S.W.2d 662, 663 (Tex.Civ.App.—Houston 1961, no writ), or dismiss the suit if the remaining allegations in the petition fail to state a cause of action. Farias v. Besteiro, 453 S.W.2d 314, 317 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n.r. e.); see also 3 R. McDonald, Texas Civil Practice in District and County Courts sec. 10.14.5 (rev.1983).

It is also well settled that the trial court may not dismiss a suit until the party has been given an option to amend, Harold v. Houston Yacht Club, 380 S.W.2d 184, 186 (Tex.Civ.App.—Houston 1964, no writ), unless the trial court can determine that an amendment will not cure the defect. See Williams v. Muse, 369 S.W.2d 467, 470 (Tex.Civ.App.—Eastland 1963, writ ref’d n.r.e.).

The defendants contend that the plaintiff was given an opportunity to amend three times, and therefore, the trial court properly dismissed this suit. However, the defendants’ special exceptions to plaintiffs third amended petition contained exceptions that had not been made previously. Hence, the court had not previously ruled on these new exceptions. The plaintiff should have been given an opportunity to amend its Third Amended Original Petition. See Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex.1974).

Defendants also contend that the plaintiff was given an opportunity to amend after the special exceptions to the third amended petition had been submitted. Plaintiff filed a motion for reconsideration, in which it attacked the sufficiency of the pleadings and the insufficiency of the special exceptions. Defendants argue that by filing this motion and by failing to attach amended pleadings or to produce these at the hearing, plaintiff, in effect, refused to amend its pleadings. We disagree. Plaintiff did complain in its motion that it had been denied the opportunity to amend, because the trial court dismissed the suit. This complaint by the plaintiff was sufficient to place the trial court on notice that plaintiff was not refusing to amend its pleadings.

The plaintiff asserts that the trial court erred in sustaining defendants’ special exceptions. We do not rule on this contention, because the plaintiff was not given an opportunity to amend, and thus, dismissal was improper. The validity of the court’s ruling on these special exceptions therefore is not in issue. See McCamey v. Kinnear, 484 S.W.2d 150 (Tex.Civ.App.—Beaumont 1972, writ ref’d n.r.e.).

Plaintiff also requests that its attorney’s fees for this appeal be taxed against the defendants. Article 2226 of the Texas Revised Civil Statutes Annotated, cited as authority for this request, does not authorize such an award. We deny this request.

The judgment of the trial court is reversed, and the plaintiff’s suit is reinstated.


text:
    Marlyn Edward MARR, Appellant, v. The STATE of Texas, Appellee.
    No. 10-83-329-CR.
    Court of Appeals of Texas, Waco.
    March 28, 1985.

      Stanley G. Schneider, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Winston E. Cochran, Jr., Asst. Dist. Atty., Joe Ma-gliolo, Asst. Dist. Atty., Houston, for appel-lee.
   OPINION

THOMAS, Justice.

This is an appeal from the denial of Appellant’s plea of jeopardy. We affirm.

Appellant was convicted of capital murder and sentenced to death in cause number 363,445 in the 228th District Court of Harris County. He was also indicted for three aggravated robberies in cause number 363,446 in the same court. Appellant filed a “Plea of Double Jeopardy” in cause number 363,446, alleging that he had already been punished for the robberies because the State had introduced evidence of the aggravated robberies during the punishment phase of his capital murder trial to secure the death penalty. The court denied the jeopardy plea on July 5, 1983.

Appellant then filed a motion requesting the court to reconsider its ruling on the jeopardy plea. On November 21 the court held a hearing on the motion to reconsider. The State admitted at the hearing that the three victims of the aggravated robberies had testified about the robberies during the punishment phase of Appellant’s capital murder trial. Appellant called as witnesses two members of the jury which had assessed his death penalty. The jurors denied that the testimony of the three victims of the aggravated robberies had caused them to assess the death penalty. The court denied the motion to reconsider on November 21. Following the denial of the motion to reconsider, Appellant plead “no contest” to the three aggravated robberies charged in cause number 363,446. The court found him guilty of all three offenses and assessed his punishment at twenty-five years in prison for each offense.

In his sole ground of error Appellant contends that the court erred when it denied his jeopardy plea. This ground is without merit. The record before us does not reflect the date of Appellant’s capital murder conviction nor does it show that such conviction had become final before the court denied the jeopardy plea.

The constitutional guarantee against double jeopardy protects an accused from a second prosecution for the same offense after acquittal or conviction and also protects against multiple punishments for the same offense. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); U.S. Const. art. V. Here, Appellant argues that he is being subjected to multiple punishments for the three aggravated robberies because the State used evidence of the robberies to obtain the death penalty in his capital murder case. He does not claim that he has been convicted or acquitted of the robberies in the prior proceeding. An accused cannot successfully claim that he has already been punished for the same offense in a prior proceeding unless the judgment in the prior proceeding has become final. Thus, only a final judgment in a prior proceeding will support a plea of jeopardy. See Dailey v. State, 162 Tex.Cr.R. 387, 285 S.W.2d 733 (1955); Ramirez v. State, 147 Tex.Cr.R. 256, 179 S.W.2d 976 (1944). Appellant has failed to show that his jeopardy plea was based on a final prior conviction, and he cannot therefore demonstrate that he has already been punished for the aggravated robberies. Ground one is overruled.

Affirmed.


author: BURDOCK, Justice.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. David MAYNORD, Appellee.
    No. 2-84-208-CV.
    Court of Appeals of Texas, Fort Worth.
    April 3, 1985.
    Publication Ordered May 1, 1985.

      Charles M. Bradshaw, Dallas, for appellant.
    Dushman, Friedman & Brady, Jack Friedman & Lowell E. Dushman, Fort Worth, for appellee.
    Before FENDER, C.J., and BURDOCK, J.
   OPINION

BURDOCK, Justice.

This is an appeal from a summary judgment in favor of appellee, plaintiff below, on an insurance policy.

We reverse and render a take nothing judgment for appellee.

Appellee had two insurance policies with appellant. One was a Texas Personal Auto Policy which scheduled three cars owned by appellee. The other policy was a Texas Standard Automobile Policy on which ap-pellee’s motorcycle was scheduled.

On July 14, 1982, appellee was injured in a collision while riding his motorcycle. The damages he sustained due to bodily injuries were agreed by the parties to be in excess of $5000. Appellee filed a claim under his Texas Standard Automobile Policy, which covered the motorcycle, and was paid $2,500 under the personal injury protection (PIP) provision. He then made a claim for $2,500 in PIP benefits under his Texas Personal Auto Policy. (The maximum amount of PIP benefits provided in each policy was $2,500.) Appellant denied the claim on the grounds that the motorcycle was not a scheduled vehicle and was therefore excluded from coverage under that policy.

Appellee then brought suit to recover the PIP benefits existing under the Texas Personal Auto Policy. An agreed statement of facts was filed by the parties and each party moved for summary judgment. The trial court granted appellee’s motion for summary judgment, denied appellant’s motion, and awarded appellee $2,500 plus the statutory penalty, interest, and attorney’s fees.

Appellee’s right to receive the $2,500 in PIP benefits under his Texas Standard Automobile Policy, which insured the motorcycle, is not challenged by appellant. We find that appellee was entitled to receive those PIP benefits and therefore we need not consider the Texas Standard Automobile Policy any further.

Appellant presents two points of error on appeal arguing that the trial court erred in granting appellee’s motion for summary judgment and denying appellant’s motion for summary judgment because appellee is not entitled to receive PIP benefits under the Texas Personal Auto Policy. The contention of appellant is that the following exclusion in the policy is applicable to this situation:

EXCLUSIONS
We do not provide Personal Injury Protection Coverage for any person for bodily injury sustained: ...
(4). While occupying, or when struck by, any motor vehicle (other than your covered auto) which is owned by you. [Emphasis in original.]

Appellant argues that since the term “your covered auto” is defined in the policy and does not include motorcycles, appellee’s motorcycle is specifically excluded from coverage under the policy.

Appellee’s argument is that where there are two or more policies, PIP benefits should be payable from all the policies as long as the amount of benefits paid does not exceed the actual loss sustained. He further contends that primary coverage follows the vehicle while secondary coverage is derived from appellee’s status as an insured policy holder, therefore appellee is entitled to the benefits.

In a summary judgment case, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises a fact issue with reference to the essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex.1970). See also TEX.R.CIV.P. 166-A. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.1972); Goodwin v. Texas General Indemnity Co., 657 S.W.2d 156, 159-60 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

The provisions of TEX.R.CIV.P. 166-A are applicable both to plaintiffs and defendants who move for summary judgment. The judgment sought should be granted, and if granted should be affirmed, only if the summary judgment record establishes the movant’s right thereto as a matter of law. Gibbs, 450 S.W.2d at 828. The mov-ant establishes his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

We find that exclusion four in the policy is applicable here and clearly provides that appellee, as the insured, is not entitled to coverage under the Texas Personal Auto Policy for the injuries he sustained while riding his motorcycle. There is no dispute that the motorcycle was not a “covered auto” as defined in the policy and therefore coverage is simply excluded under the terms of this policy.

We can find no merit in appellee’s contention that appellant specifically provided for coverage in the event of multiple policies by including an “Other Insurance” clause in the policy. The clause provides:

If there is other Personal Injury Protection Insurance, we will pay only our share. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible Personal Injury Protection insurance. [Emphasis added.]

It is apparent from a reading of this provision that the “Other Insurance” clause only becomes effective if liability exists under two or more policies. Having found that exclusion four in the policy is valid, no liability exists on this policy and there can be no recovery of PIP benefits.

We find appellee has failed to establish his right to summary judgment as a matter of law. See City of Houston, 589 S.W.2d at 678. We reverse and render a take nothing judgment for appellee because, as a matter of law, appellant’s motion for summary judgment should have been granted.

The judgment is reversed and rendered.


author: COHEN, Justice.

text:
    Allen Paul SCHERLIE, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0529-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 4, 1985.

      W. Scott Carpenter, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Houston, William J. Delmore, III, Harris County Asst. Dist. Atty., Pam Sklar Derbyshire, Harris County Asst. Dist. Atty., for appellee.
    Before EVANS, C.J., and DUNN and COHEN, JJ.
   OPINION

COHEN, Justice.

The appellant was convicted by a jury of driving while intoxicated and the court assessed punishment of 120 days in jail, probated for two years, and a $350.00 fine.

The first ground of error asserts that the court erred in instructing the jury that intoxication is defined as having an alcohol concentration of 0.10% or more because such an instruction constituted an irrebuttable presumption of intoxication and was, therefore, unconstitutional.

The information contained two paragraphs alleging the offense of driving while intoxicated, under Tex.Rev.Civ.Stat. Ann. art. 6701Z-l(a)(2)(A) and (B) (Vernon Supp.1985). The State abandoned the first paragraph and prosecuted solely upon the second paragraph, which alleged that the appellant committed the offense by “having an alcohol concentration of at least 0.10% in his body” while he drove or operated a motor vehicle in a public place.

The jury charge defined “intoxicated” as “having an alcohol concentration of 0.10% or more.”

In applying the law to the facts, the jury charge provided:

Therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Allen Paul Scherlie, on or about the 29th of April, 1984, in Harris County, Texas, did while intoxicated, namely, having an alcohol concentration of at least 0.10% in his body, drive or operate a motor vehicle in a public place, you will find the defendant guilty.

Until art. 670Ü-1 was amended, effective January 1, 1984, the sole definition of “intoxication” in Texas was that a driver did not have the normal use of his mental or physical faculties by reason of introduction of alcohol into his body. The statutory amendment added the new definition of “having an alcohol concentration of 0.10% or more.” Thus, under the statute, one who drives a vehicle in a public place with an alcohol concentration of 0.10% or more commits the crime of driving while intoxicated, even though he may retain the normal use of his mental or physical faculties. Under the former law, an alcohol concentration of 0.10% entitled a jury to presume that the defendant did not have normal use of his mental and physical faculties. Under the new law, once it is shown that the defendant had an alcohol concentration of 0.10% or more, there is nothing for the jury to presume. The offense has been proved. The new definition of “intoxicated” in art. 6701 l -1(a)(2)(B) does not give rise to any presumption of intoxication; on the contrary, an alcohol concentration of 0.10% constitutes intoxication standing alone. It is a separate, independent, additional way in which the crime of driving while intoxicated may be committed. It is not a presumption at all, much less an irrebuttable presumption. It is the ultimate fact to be determined in the litigation.

The appellant’s argument has been rejected in Texas and elsewhere. See Forte v. State, 686 S.W.2d 744 (Tex.App.—Fort Worth, pet. pending) and cases cited there from other states.

The first ground of error is overruled.

The second ground of error asserts that the court erred in denying the appellant’s motion to set aside the second paragraph of the information because art. 6701Í -1(a)(2)(B) is unconstitutional in that it predetermines the accused’s guilt, deprives the accused of a fair trial, shifts the burden of proof to the accused and deprives the accused of due process of law. These arguments are all grounded on the appellant’s assumption that the statute creates an irre-buttable presumption of intoxication, a proposition we have rejected in ground of error one.

Ground of error two is overruled.

The third ground of error contends that the court erred in refusing the appellant’s requested jury charge, pursuant to Tex.Penal Code Ann. sec. 2.05 (Vernon 1974). That statute requires that a jury be given instructions limiting the effect of a presumption, “when this code or another penal law establishes a presumption with respect to any fact,....” The appellant relies on Goswick v. State, 656 S.W.2d 68 (Tex.Crim.App.1983) and Eckman v. State, 600 S.W.2d 937 (Tex.Crim.App.1980) for the proposition that failure to give such a charge is fundamental error in a driving while intoxicated prosecution. Neither Goswick nor Eckman controls this ground of error, however, because neither interpreted article 6701/ -1(a)(2)(B), as amended effective January 1, 1984.

The new definition of “intoxication”, having an alcohol concentration of 0.10% or more, is not a presumption. Consequently, there is no requirement to give the limiting instruction required by sec. 2.05 for presumptions.

Ground of error three is overruled.

The fourth ground of error asserts that the court erred by admitting evidence of the intoxilyzer results because the State failed to establish that the intoxilyzer operator understood the scientific theory of the device.

It is not required that the operator understand the scientific theory of the intoxi-lyzer. The State is only required to prove “that the operator and the machine were under the periodic supervision of one who has an understanding of the scientific theory of the machine.” Hill v. State, 158 Tex.Cr.R. 313, 256 S.W.2d 93, 96 (Tex.Crim.App.1953). The State presented testimony from a chemist which met this requirement.

Ground of error four is overruled.

The fifth ground of error contends that the predicate was not proved to justify admission of the results of the intoxilyzer test because it was not shown that the test was performed pursuant to the rules of the Department of Public Safety and by an individual possessing a valid certificate issued by the Department.

The officer testified that he held a D.P.S. certificate as a qualified intoxilyzer operator on the date alleged in the information and that he followed the rules of the Department for giving an intoxilyzer test. This was a proper predicate. See Epperson v. State, 578 S.W.2d 398 (Tex.Crim.App.1979) holding that an objection under the “best evidence rule” is not meritorious in such circumstances.

Ground of error five is overruled.

The judgment is affirmed.


author: DUGGAN, Justice.

text:
    Marie V. DAVIS, Administratrix, Appellant, v. Joyce D. JOHNSON, Appellee.
    No. 01-84-0389-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 4, 1985.
    Rehearing Denied May 2, 1985.

      E.W. Newman, Houston, for appellant.
    Jacko Hargrave, Houston, for appellee.
    Before DUGGAN, WARREN and LEVY, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from a judgment following a non-jury trial approving and authorizing payment of a claim previously rejected by the administratrix of a decedent’s estate. The claimant-appellee, Joyce D. Johnson, brought suit against the estate of Warren D. Davis, the decedent, to establish a claim to 50% of the profits acquired in a joint venture between Joyce D. Johnson and Warren D. Davis. The trial court found that Johnson and Davis had entered into and conducted a joint venture to provide serological services to Texas Southern University and that Johnson was entitled to 50% of the assets from that venture.

In September of 1976, appellee, Joyce D. Johnson, and the decedent, Warren D. Davis, entered into an agreement whereby they would jointly perform serological, medical, and related services for Texas Southern University. They further agreed to share equally in the proceeds-and the net revenue derived from the Texas Southern University account, and to deposit all payments received from Texas Southern into a joint bank account in the Port City State Bank of Houston. The account was opened in the name of Modern Medical Laboratory as the joint account of Warren D. Davis and Joyce D. Johnson, and Davis made the initial deposit of $1400.

Shortly prior to Davis’s death on July 2, 1978, Joyce D. Johnson transferred the sum of $14,000 from the Port City State Bank account to her personal account with Davis’ knowledge and consent. Subsequent to Johnson’s transfer of the $14,000, Marie V. Davis filed a petition for divorce in the 257th Judicial District Court of Harris County, and named as defendants Joyce D. Johnson, Warren D. Davis, Port City State Bank, and South Main Bank, where both Warren and Marie V. Davis had personal accounts. Pursuant to that lawsuit, the sum of $14,856.61 from the personal account of Joyce D. Johnson, $64.85 from one joint account of Warren D. Davis or Marie V. Davis, and $1,416.56 from another joint account of Warren D. Davis or Marie V. Davis were interpleaded by South Main Bank into the registry of the court. That lawsuit, including the monies in the registry of the court, was transferred to the Probate Court Number One of Harris County upon agreement of the parties, and was consolidated with the present action filed by Joyce D. Johnson urging her claim against the estate of Warren D. Davis.

Having concluded that Johnson and Davis entered into a joint venture, the trial court reconstructed the Port City State Bank account and awarded half the money in the account to Johnson. The sum of $22,492.50, collected by the estate from Texas Southern after Davis’ death, was returned to the account, as was $14,000 of the $14,856.61 from Johnson’s personal account being held by the trial court. These amounts, combined with the $1,385.91 still in the account, totalled $37,878.41. The estate was given a credit of $1400 for the initial deposit by Warren D. Davis from his personal sources. Of the remaining $36,-478.41, Johnson was awarded one-half, or $18,239.20.

In her first point of error, appellant urges that the probate court “erred in assuming jurisdiction when the probate court did not have jurisdiction.” Appellant argues that the probate court did not have jurisdiction to hear this suit because probate court is not the appropriate forum to adjudicate the existence of a joint venture. Appellant relies generally upon Seay v. Hall, 677 S.W.2d 19 (Tex.1984), but she does not explain how that case applies to the facts and circumstances of this case. Seay addressed the issue of whether the statutory terms “appertaining to estates and incident to an estate,” “all matters relating to the settlement ... of estates,” and “claims” are broad enough to confer upon probate courts jurisdiction over survival and wrongful death actions. See generally Tex.Prob.Code Ann. secs. 3, 5 and 5A (Vernon 1980). While Seay held that wrongful death and survival actions are not matters appertaining to or incident to estates, nothing in that opinion requires the same result in this case- Seay turned on the fact that no specific sums of money are owed in survival and wrongful death actions because the damages are unliqui-dated. See also English v. Cobb, 593 S.W.2d 674 (Tex.1979). Furthermore, the controlling issue in wrongful death and survival actions is never the settlement, partition, or distribution of an estate.

In our case, as distinguished from Seay, Johnson presented a claim against the estate for a specific sum consisting of exact amounts derived from three particularized and identified sources. Thus, the controlling issue here was the settlement, partition, or distribution of liquidated and specific funds controlled by the estate. Appellant’s first point of error is overruled.

In her second point of error, appellant urges that the trial court erred in finding that a joint venture existed between the appellee, Joyce Johnson and the deceased, Warren Davis, because there is nothing in the record to support the finding of a joint venture. We understand appellant’s contention to be a no evidence point. In considering such a point, the court considers only the evidence tending to support the finding, viewing it in the light most favorable to the finding, giving effect to all reasonable inferences that may be drawn therefrom, and disregarding all evidence to the contrary. Glover v. Texas General Indemnity Co., 619 S.W.2d 400, 401 (Tex.1981).

In support of the finding of a joint venture, Johnson testified that she and Davis entered into the joint venture in September, 1976; that they both had authority to, and did, write checks on the business account at Port City State Bank; and that they agreed to share equally in the profits of the business. The signature card from the Port City State Bank account bearing both names, as well as business checks showing Johnson’s home address as the business address, were admitted into evidence. Johnson also testified and produced documentary evidence concerning her actual involvement in the business, including her preparation of statements mailed to Texas Southern University. This evidence and all reasonable inferences deriving therefrom support the court’s finding. Appellant’s second point of error is overruled.

Appellant’s third and fourth points of error urge that the trial court erred in overruling her plea in abatement which stated that prior to a division of the assets of the joint venture, if there was one, there must first have been an accounting and winding up of the venture’s affairs. Appellant claims that it is the “unyielding law” of this area that an accounting and winding up of the affairs of a joint venture are prerequisites to division of its assets. The law in this area is not as rigid as the appellant suggests. In Chipley v. Smith, 292 S.W. 209 (Tex.Comm’n App. 1927, judgment adopted), the court recognized a “well defined exception” to the general rule stated by appellant. When the partnership is formed to carry out a single transaction or venture and does not involve complicated accounts, one partner may maintain an action at law against his co-partner or, as in this case, against the estate, for his share of the profits of thé venture without first having a formal accounting. Id. at 210. Accord Mullins v. Archer, 176 S.W.2d 763, 764 (Tex.Civ.App.—Amarillo 1943, no writ).

This case falls within this exception to the general rule, even though this undertaking was not a single venture in the same sense that there was a single venture in Chipley and Mullins. Here, the joint venture activity consisted of the servicing of one account for Texas Southern University. No work had been done on the account for a period of time before Warren Davis’ death, and a final statement prepared by Johnson had been rendered to Texas Southern for all work done. The collection of that invoiced amount by the appellant executrix was the basis for a substantial portion of appellee’s claim against the estate.

“Further, the evidence presented at trial demonstrated that the account was not complicated. Appellant states in her brief that there has been no resolution of the disposition of valuable lab equipment, accounts receivable, collection of assets, payment of creditors, payment of taxes, and a determination of net assets left after taking care of all the liabilities.”

By her response to interrogatories in the original divorce action, Johnson had answered under oath in August 1978, some 5½ years before the plea in abatement and trial, that she was not in possession of any of Modern Medical Laboratories’ facilities; that she did not know who was; and that she had not collected any of the venture’s accounts receivable since Warren D. Davis’ death. Johnson’s interrogatory answers and pleading, both in the divorce action and in the probate claim, were consistent with the evidence heard at trial; i.e., that the Texas Southern University account was the joint venture’s only work, that the work was completed and billed prior to Warren Davis’ death, and that the balance due was collected from Texas Southern by the appellant administratrix. No testimony concerning equipment, other accounts receivable, other collections, creditors, taxes, or net assets was heard at trial, and no evidence of these matters was presented by the appellant administratix during the hearing on her plea in abatement.

There was ample opportunity to discover by depositions or interrogatories any complicating factors prior to trial, but nothing in the record indicates any attempt to discover such information. In cases where the estate of a deceased partner sues the surviving partner for an accounting of the partnership assets, the burden of proof is upon the estate to prove the amount for which the surviving partner should account to the deceased’s estate. Cauble v. Handler, 603 S.W.2d 362, 364 (Tex.Civ.App.—Fort Worth 1973, writ ref’d n.r.e.). Although here the estate has not actually sued the surviving joint venturer for an accounting, it is clearly asking for such an accounting by its plea in abatement. We hold that the burden of proof was upon the appellant in this case to come forward with any evidence that actually requires an accounting.

Since there was no such evidence, we hold that there was no necessity for a final accounting prior to the court’s disposing of the assets on the joint venture. Points of error three and four are overruled.

The judgment is affirmed.


author: DUNN, Justice.

text:
    Jonathan Lamont GLOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0430-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 18, 1985.

      Brian W. Wice, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Timothy G. Taft, Herbert Burns, Harris County Asst. Dist. Attys., Houston, for appellee.
    Before EVANS, C.J., and DUNN and COHEN, JJ.
   OPINION

DUNN, Justice.

The appellant was convicted by a jury of the offense of burglary of a habitation. His punishment, enhanced by one prior conviction, was assessed by the court at 17 years imprisonment. We affirm the judgment of the trial court.

Appellant’s sole ground of error is that the evidence presented at trial was insufficient to sustain the jury verdict. Because the sufficiency of the evidence is challenged, we will discuss the facts in some detail.

The state’s witness, Robert Brady, identified the appellant at trial as one of two men whom he saw standing next to his neighbor’s car in the parking lot of their apartment complex at approximately 2:30 a.m. on the morning of April 15, 1984. Brady testified that the trunk of the car was open and that he noticed several large boxes inside. When the two men saw Brady, they jumped into the car and sped off in the general direction of the Southwest Freeway, which was about one-half mile from the apartment complex.

Brady then went into his neighbor’s apartment, after seeing that the door of the apartment was wide open, and awakened the complainant and the complainant’s girlfriend, who called both the apartment’s security force and the Houston police.

Officers Krol, Sanders, and Hemsberger of the Houston Police Department testified that they had become involved in a high-speed chase on the Southwest Freeway at approximately 2:30 a.m. on April 15, 1984.

The engine of the speeding car was blown in an attempt to escape the police, and the passenger fled as the car coasted to a stop. He was captured by police officers five minutes later and placed under arrest along with the driver of the car. The fact that the speeding automobile was owned by the complainant was not disputed, and all three officers identified the appellant as the passenger of the car.

According to the testimony of the Houston police officers, the appellant made no statement to the police at the time of his arrest. Officer Sanders also testified that stereo speakers and a television were found in the trunk of the car.

The state further showed, by Brady’s testimony, that the appellant was seen outside the complainant’s burglarized apartment and that he was there for no apparently legitimate purpose at an unreasonable hour of the night. This circumstantial evidence, including the testimony of police officers that the appellant subsequently fled from the complainant’s car, which contained the complainant’s personal property, is sufficient to support a conviction for burglary of a habitation. See Taylor v. State, 630 S.W.2d 469, 472 (Tex.App.—San Antonio 1983, no pet.).

To rebut the evidence presented by the state, the defense presented Michael Caster, the other man Brady saw standing next to the complainant’s car. Caster was the driver of the car stolen from the victim of the burglary in this case, and at the time of trial was serving a seven-year sentence for that auto theft.

Caster testified that he had been talking with the appellant on the evening of April 14, 1984, at the Change of Pace Club, which is located a few blocks from the complainant’s apartment complex. An officer of the Houston Police Department, while on patrol, had seen the two behind the club and had talked with them briefly.

Caster further testified that he left the club on foot, and caught up with a friend, Tim Townsend, at a point near the apartment complex. When they noticed the complainant’s car with the keys in the trunk, they opened the trunk and saw several boxes inside. Caster then asked Townsend, “Do you want to steal this car?”; upon receiving an affirmative answer, both men got into the complainant’s car and drove away. Caster testified that he did not know how the complainant’s property got into the car, and that he didn’t know for sure, but he thought that Townsend had burglarized the complainant’s apartment.

According to Caster’s testimony, Tim Townsend found a purse in the car containing approximately $200. He gave $100 of that amount to Caster, took the purse, and got out of the automobile.

Caster then drove around for approximately five minutes, saw the appellant jogging down Glenmont Street, and offered him a ride. The appellant accepted Caster’s offer and the two drove to the Southwest Freeway, where they were chased and ultimately arrested by officers of the Houston Police Department. Caster stated that he informed Officer Krol and Officer Sanders at the scene that the appellant was “not responsible for this.”

On re-direct examination by the state, Officer Krol testified that Michael Caster, at the time of his arrest, had stated that he and the appellant had “split the money.” The cash found on the two men totalled approximately $180, the amount the complainant stated was in the wallet stolen from his apartment.

The appellant cites Olguin v. State, 601 S.W.2d 941 (Tex.Crim.App.1980), and Naquin v. State, 607 S.W.2d 583 (Tex.Crim.App.1980), for the proposition that possession of stolen property is not established merely by showing that the accused was the driver or passenger of the car in which the items were found. In Olguin, the Court held that “where the accused is not in the exclusive control of the place where the contraband is found, it cannot be concluded that he had knowledge of the contraband and control of it unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband.” 601 S.W.2d at 943. The Naquin court stated that “an affirmative link may be established by showing additional facts and circumstances which indicate the accused’s control and knowledge of the contraband.” 607 S.W.2d at 586.

Here, the appellant’s presence outside the burglarized apartment, the virtually immediate apprehension of the appellant with the stolen goods, and the fact that the appellant and Caster had been seen together earlier in the evening only a few blocks from the scene of the offense constitute sufficient independent facts and circumstances to affirmatively link the appellant to the stolen property. Caster’s explanation for the appellant’s possession of recently stolen property was not made at the time of the arrest of either Caster or the appellant, nor was it sufficient to rebut the circumstances of that possession. The truth or falsity of an explanation may be shown by circumstantial evidence and determined by the jury in light of all of the facts. See Callahan v. State, 502 S.W.2d 3 (Tex.Crim.App.1973).

In McLemore v. State, 638 S.W.2d 211 (Tex.App.—Houston [1st Dist.] 1982, no pet.) also cited by the appellant, this court held that:

An inference or presumption of a defendant’s guilt of burglary or of a theft sufficient to sustain a conviction may arise from the appellant’s possession of property stolen or taken in a recent burglary. However, in the prosecution for either theft or burglary, to warrant such an inference or presumption of guilt from the circumstances of possession alone, such possession must be recent, must be unexplained, and must involve a distinct and conscious assertion of right to the property by the defendant.

638 S.W.2d at 214, citing Rodriguez v. State, 549 S.W.2d 747 (Tex.Crim.App.1977) (emphasis added).

In McLemore, the state failed to discredit the appellant’s reasonable and sufficient explanation, which was given by him at the scene of the arrest, and the judgment of the trial court was reversed. The instant case is readily distinguishable from McLemore; here, the inference of the appellant’s guilt is not based upon possession alone.

As we stated in Medrano v. State, 658 S.W.2d 787 (Tex.App.—Houston [1st Dist.] 1983, pet. ref’d):

Guilt of the offense of burglary can be established circumstantially by the combined and cumulative force of all the incriminating circumstances, but proof of guilt by accompanying circumstances is subject to the same rigorous standard required of direct evidence, i.e., proof beyond a reasonable doubt. In deciding whether circumstantial evidence is sufficient to support a conviction, each case must necessarily be tested by its own facts_ Evidence that a house has been burglarized, together with the accused’s unexplained possession of some of the property recently stolen from the house, is sufficient to support a conviction for burglary. Id. at 790.

Considering the entire record, we find there was sufficient evidence from which the jury could conclude that every reasonable hypothesis other than the appellant’s guilt of the offense of burglary was excluded. The appellant’s sole ground of error is overruled and the judgment of the trial court is affirmed.


author: EVANS, Chief Justice.

text:
    LOOMIS INTERNATIONAL, INC., Appellant, v. William A. PERKINS, Appellee.
    No. 01-84-0796-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 18, 1985.

      Douglas W. Sanders, Tony P. Rosenstein, Baker & Botts, Houston, for appellant.
    Dalton L. Jones, Kay M. Doyle, Gregg, Jones, Mieszkuc & Feldman, Houston, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

EVANS, Chief Justice.

The appellant, Loomis International, Inc., brought this action against one of its former employees, William A. Perkins, to enforce a covenant not to compete. The trial court denied Loomis’ request for a temporary injunction, and Loomis appeals from that order.

In six points of error, Loomis contends: (point one) that the evidence conclusively shows that Perkins violated the noncompet-ition covenant and that a temporary injunction is its only adequate remedy; (points two, three, four, and five) that the requested temporary injunctive relief is reasonable in time and geographic scope; and (point six) that if the trial court found the scope of the requested relief to be overbroad, it erred in not reforming the covenant and in not enforcing the covenant as reformed.

Because this is an appeal from the denial of a temporary injunction, our review is limited to whether the trial court clearly abused its discretion in deciding that the appellant was not entitled to the temporary injunction. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978). Because no findings of fact or conclusions of law were filed, we must uphold the trial court’s judgment if it is supported by the record on any legal theory. Id. at 862; Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex.1968).

There is no dispute as to the terms of the noncompetition covenant in the 1976 employment agreement between Loomis, a company engaged in oilfield pipe testing and Perkins, who was hired as a salesman. Under the terms of the contract, Perkins agreed that for a period of two years following the termination of his employment, he would not engage directly or indirectly in the same or a competitive business within a 500-mile radius from the office where he worked at the time of his termination or where Loomis had done business in the year preceding such termination. At the temporary injunction hearing, Loomis limited its requested relief to an area within a 100-mile radius of any Loomis office within whose jurisdiction Perkins had worked or made customer contacts.

The evidence is uncontroverted that when Perkins resigned from Loomis in September 1984, he held the position of sales vice-president, and within several days thereafter, he began working for National Testers, Inc., a competitor of Loomis. It is also undisputed that Perkins continued to call on some of the same individuals that he contacted while employed by Loomis. Perkins acknowledged that his employment contract with Loomis prohibited him from working for a competitor of Loomis within the time and geographic scope specified in the noncompetition covenant.

In order to be entitled to temporary in-junctive relief, Loomis was required to show not only a probable right to the relief sought, but also a probable injury to that right in the interim unless temporary relief were granted. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968). Thus, the controlling question is whether the evidence so conclusively established Loomis’ right to temporary relief that the trial court clearly abused its discretion in refusing to grant such relief. Davis v. Huey, 571 S.W.2d at 862.

There was evidence from which the trial court could have concluded that Loom-is failed to prove such an irreparable injury by reason of Perkins’ breach of the non-competition covenant that temporary in-junctive relief would be justified. There was testimony that Perkins had worked in the oil business for 25 years before he went to work for Loomis and that he made sales contacts and built up customer goodwill long before he began working for Loomis. There was also testimony that while Perkins worked for Loomis, he was assigned to a particular geographic area, but he did not have an exclusive sales territory or exclusive customers. There was some evidence that oil companies use several different testing companies and that in the highly competitive oilfield pipe testing business, sales are no longer influenced primarily by personal contacts, but rather are determined by pricing and by a company’s performance record. Prom all the testimony presented, the trial court could reasonably have decided that any injury that Loomis showed it might sustain by reason of Perkins’ competitive efforts did not justify the imposition of temporary injunctive relief. Cf. Martin v. Linen Systems for Hospitals, Inc., 671 S.W.2d 706, 710 (Tex.App.—Houston [1st Dist.] 1984, no writ).

In our review, we cannot assume that the evidence taken at the preliminary hearing will be the same as that developed at a full trial on the merits. Davis v. Huey, 571 S.W.2d at 862. Neither may we substitute our judgment for that of the trial court. Our sole determination is whether the undisputed evidence conclusively shows an abuse of discretion. Id.; Zmotony v. Phillips, 529 S.W.2d 760 (Tex.1975). Because the record does not clearly show that the trial court abused its discretion in denying temporary relief, we overrule all points of error.

The order of the trial court is affirmed.


author: BOYD, Justice.

text:
    Eddie Lee LENZY, Appellant, v. The STATE of Texas, Appellee.
    No. 07-84-0103-CR.
    Court of Appeals of Texas, Amarillo.
    April 19, 1985.

      Law Firm of Floyd Holder, Sam Ogan, Lubbock, for appellant.
    Jim Bob Darnell, Dist. Atty., Ruth Cantrell, Asst. Dist. Atty., Lubbock, for appel-lee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   BOYD, Justice.

Appellant Eddie Lee Lenzy brings this appeal from his conviction of aggravated sexual assault and the consequent jury-assessed punishment of life imprisonment. In two grounds, he asserts that the evidence is insufficient to prove: (1) penetration of the vagina of the victim by the sexual organ of appellant and (2) serious bodily injury suffered by the victim, as defined in Tex.Penal Code Ann. § 1.07(a)(34) (Vernon 1974). We disagree with appellant’s contentions and affirm his conviction.

On September 22,1983, at approximately 3:30 p.m., the victim, who was a secretary for the Veterans Administration, entered a women’s restroom located on the second floor of the Federal Building in Lubbock. As she entered that restroom she noticed a black man using a pay telephone located in an adjacent hallway. Once in the restroom, she entered the first stall and pulled down some of her clothing. Within seconds the restroom went completely dark. She became “terribly afraid” and pulled up her clothes. The lights went on again and she heard “soft footsteps walking, walking.” She looked out the crack in the door but saw nothing. She “wanted out real quickly” and opened the stall door. As she did so, the “black man stepped up, had his hand on the outside” and took hold of her wrist. She told the man, whom she said was the same person she had seen using the telephone, “You are not supposed to be in here, this is the ladies’ restroom.” The man grinned, said “Come on,” and asked her name. When she entreated him to let her go he responded, “No, and it will do you no good to ask me again.” She pulled away from him, trying to reach the outside door, and had no further recollection of what happened until she regained consciousness on the restroom floor.

When asked about her condition upon regaining consciousness, she responded:

When I came to, when I came to, I was lying on my back, on the floor, staring at an overhead light. For a moment, I just looked at the light. I didn’t know what had happened. After a moment, I turned my head and saw part of my clothes.

The victim’s panty hose and panty girdle were lying about a foot above her head, her skirt was pulled up “[tjhigh length” and she did not have on any undergarments. There was blood on the floor close to where her clothes were and “approximately where [her] head was.” She was able to pick up her clothes and leave the restroom but then passed out again. Her next recollection was hearing a doctor, a co-worker, question her about her condition. At that time she said, “[T]he left side of my chest hurt. I was real nauseated. Very nauseated. My stomach hurt. My face hurt.”

Subsequent examination revealed that the victim was beaten about the face and head and she had to have three teeth crowned and two root canals. Her lower abdomen and back also hurt. She was kept in the hospital for two days for treatment of those injuries and to check for suspected cranial damage. She returned to work on November 8,1983 but “couldn’t work a full week. I took a lot of sick leave” because “I just couldn’t handle the whole week” and, at the time of the trial, had again been off work for three weeks. Since the date of the incident she had been under the continuous care of a psychiatrist. Approximately one month before the trial she had reached the point where her alternatives “were to go stay with my brother and his wife, have family support and get psychiatric care there, or be hospitalized psychiat-rically here.” She chose to stay with her brother. All of this, she testified, was a result of the occurrence here in question. As a result of her beating, the victim’s facial appearance was sufficiently altered that when she saw herself for the first time, four days after the accident, her thought was, “I guess this is me but it doesn’t look much like me.”

Janelle Carr, an employee of the United States Department of Agriculture, was one of the first to see the victim as she lay on the hall floor outside the restroom. She said the victim “was extremely swollen in the face and so badly swollen, she — I wasn’t able to tell that I even knew her. Blood was running out of her mouth on both sides. Down to the floor. Her eyes were open but she didn’t seem to be really seeing us.” She went on to say that the victim “was beaten so badly, her face was so swollen, that she was unrecognizable. And I thought it was just a woman that I didn’t even know.”

Rebecca Gregory, an Assistant U.S. Attorney whose office was in the Federal Building, was also one of the first to see the victim. She characterized the appearance of the victim’s face as “exceedingly swollen” and it “looked like it had exploded from within.” Later she said her face looked “like a volcano had exploded. She was very badly beaten around her jaw and cheek area.”

Dr. James Terry Gage was the physician who examined the victim in the emergency room at Methodist Hospital in Lubbock. Dr. Gage said that at the time of her arrival at the emergency room, she was suffering from “severe swelling from beating around her head and face,” had some tenderness over her back and abdomen and was very emotionally distressed. Because of what he characterized as the “severity” of her injuries, he was concerned that she might develop a neurological problem requiring surgical intervention. However, the specialist who checked her, Dr. Denton DeWitt, determined that no surgical procedures were required. Dr. Gage also said that the usual specimens taken from rape victims such as fingernail scrapings, pubic combings and washings from the vagina and the perineal area were taken in the presence of a Rape Crisis volunteer. In his examination, he found no evidence of vaginal tearing on the victim.

Lab tests of the results of the washings were made to detect any evidence of intercourse that might have culminated in ejaculation. The washings were checked for sperm and acid phosphatase, a chemical present in the male prostate gland. In the tests made at the hospital, no sperm was found, but a low concentration of acid phosphatase was found.

Dr. Gage said this type of low-level acid phosphatase is present in male secretions in the urethra and “may be present as a lubricant in the urethra” and left by the male in the vagina even though ejaculation may not have occurred. He also testified that the absence of trauma to the vaginal area did not mean that no penetration occurred, since such trauma did not always occur. Further, he stated that the victim’s lower back pain and later vaginal discomfort were consistent with a female having sexual intercourse while lying on a tile floor. It was his expert opinion that the victim had had sexual penetration by a male. When asked on cross-examination whether there were low levels of acid phosphatase activity commonly present in female vaginal fluids, he replied that he was not aware that such a condition could exist. When Dr. Gage was given the legal definition of “serious bodily injury” he testified that in his opinion the injuries fit within that statutory definition.

Joanie Bumpass, the Lubbock Rape Crisis Center volunteer who was present at the emergency room, in her report identified the incident as an “aggravated assault with intent to kill.” Appellant points to this as an indication that Ms. Bumpass believed the occurrence was not a rape. However, upon redirect examination, she testified that her act was strictly “a personal opinion at that time” and she “left it to the center” to determine the offense. In any event, her report was merely one of the circumstances to be considered by the jury in their determination of the question as to whether penetration occurred. Parenthetically, we note that Bumpass’ characterization might also be legitimately considered as an indication of her opinion as to the severity of the assault and the extent of the injuries suffered by the victim.

David Legg was the Department of Public Safety chemist who analyzed the specimens submitted by the Lubbock Rape Crisis Center. He testified that his test did not reveal the presence of any sperm or acid phosphatase in the vaginal and peri-neal washings taken from the victim and submitted to them. He acknowledged that a finding by another laboratory of the presence of acid phosphatase in similar washings might indicate the use of a more sensitive test by that laboratory. He explained that the type of test conducted by him was to determine qualitative as opposed to quantitative results and he did not conduct tests to determine the level of any acid phosphatase. He did say that there were instances where low levels of acid phosphatase occurred in the female body and that such a presence would not be an “ironclad” indication of sexual activity.

Officer James Childers, a Lubbock policeman, was qualified as a fingerprint expert. He testified that he was able to retrieve a latent partial palm print from the pull plate on the interior door in the restroom. He further opined that, as with fingerprints, no two persons have the same palm prints. He identified the palm print found by him as that of appellant.

Appellant testified and denied he had been in that building since 1982. He said the identification of the palm print as his was a “mistake.”

In an offense of this nature, the State must establish penetration of the female sex organ. Tex.Penal Code Ann. § 22.011(a)(1)(A) (Vernon Supp. 985). In the instant indictment, it was alleged that the penetration was by appellant’s sex organ. While proof of the slightest penetration is sufficient, that element of the offense must be proved beyond a reasonable doubt. Sherbert v. State, 531 S.W.2d 636, 637 (Tex.Crim.App.1976). However, that penetration may be proved by circumstantial evidence and there is no requirement that the victim be able to testify as to penetration. Nilsson v. State, 477 S.W.2d 592, 595-96 (Tex.Crim.App.1972).

In reviewing a factual insufficiency claim, this Court must inquire “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Wilhoit v. State, 638 S.W.2d 489, 494 (Tex.Crim.App.1982). Circumstantial evidence is sufficient to support a conviction if the facts proved support a reasonable inference that the accused committed the crime and they exclude every other reasonable hypothesis except that of the guilt of the accused. Wilson v. State, 654 S.W.2d 465, 467 (Tex.Crim.App.1983); Phelps v. State, 594 S.W.2d 434, 436 (Tex.Crim.App.1980). It is not necessary, however, that every fact directly and independently point to the accused’s guilt. It is enough if the conclusion is warranted by the combined and cumulative force of all of the incriminating circumstances. Flores v. State, 551 S.W.2d 364, 367 (Tex.Crim.App.1977). While presence at the scene of an offense, without more, is insufficient to support a conviction, it is a circumstance which, combined with other facts, may be sufficient to show that the accused is guilty. Thompson v. State, 563 S.W.2d 247, 250 (Tex.Crim.App.1978).

The testimony by the victim that she was fully clothed prior to the encounter with appellant inside the restroom, but upon regaining consciousness her underclothing was removed and her dress “hiked up,” coupled with the testimony of Dr. Gage and joined with the other surrounding circumstances, is sufficient to justify the evident conclusion of the jury that the rape had occurred. The record does not support any other reasonable hypothesis for the peculiar circumstances of the removal of the victim’s clothing, the onset of the low back and abdominal pain, etc. While appellant advances the proposition that the abdominal pain might have occurred as a result of the victim’s fall on the floor, that proposition falls far short of a reasonable explanation of the other circumstances.

Appellant also advances the theory that the jury might have been incensed by what they saw as appellant’s perjury in denying his presence in the women’s restroom when the evidence overwhelmingly indicates otherwise, and was thereby influenced in making their decision as to penetration. There is nothing in this record to justify that conclusion. In summary, the combined and cumulative force of all the incriminating circumstances is sufficient to justify the jury’s conclusion that penetration did occur. Appellant’s first ground of error is overruled.

In his second ground of error, appellant questions the sufficiency of the evidence to prove the existence of serious bodily injury as defined in Tex.Penal Code Ann. § 1.07(a)(34) (Vernon 1974). Again, we disagree.

In section 1.07(a)(34), serious bodily injury is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” The victim was also treated by Dr. James Carpenter, a dentist. In describing the victim’s condition on September 26, 1983, the date when he first saw her, Dr. Carpenter said:

[S]he was one massive hematoma. Her face was swollen, at least a third, maybe a half larger than it was the last time I had seen her. It was black and — just almost solid black. She had some laceration around the mouth. It was difficult to get into her mouth to examine her. But upon examination, we found that the maxillary or upper right, first lower, the second premilar [sic] and first premolar, were all fractured. The first premolar had the lingual or inside cusp completely fractured off. The second premolar had the buckle or the outside cusp fractured off.

It was necessary for him to perform two root canals and install three porcelain crowns to restore the utility of those teeth. His testimony is sufficient to establish that, without his remedial work and treatment, the teeth in question would have been lost or their use substantially impaired. Dr. Carpenter concluded that the injuries to the victim’s teeth would have resulted in their protracted loss or impairment. The Penal Code does not specifically define the term “bodily member or organ,” and we have neither been cited nor found a court definition of that term. Therefore, we are directed that that term be “taken and understood in [its] usual acceptation in common language.” Tex.Code Crim.Proc. Ann. art. 3.01 (Vernon 1977). A law dictionary has defined bodily member as, “A part or organ of the body; especially a limb or other separate part.” Black’s Law Dictionary 887 (5th Ed.1979). Common usuage as well as the legal definition suggested above leads us to hold that teeth are separate, definable parts of the body sufficient to bring them with the statutory term “bodily member or organ.”

Moreover, Dr. Gage testified that the severity of the head injuries suffered by the victim did create a risk of intracranial or brain swelling that could cause death or serious permanent injury. The severity and concomitant risk of such injuries is emphasized by the testimony of the other witnesses as to the victim’s condition after the incident. We are cautioned by the Court of Criminal Appeals that the relevant issue is the “disfiguring and impairing quality of the bodily injury as it was inflicted, not after the effects had been ameliorated or exacerbated by other actions such as medical treatment.” Brown v. State, 605 S.W.2d 572, 575 (Tex.Crim.App.1980). We also think that, in its decision as to the severity of the injuries and their duration and effect, the jury was entitled to consider the victim’s testimony that since the event and even up to the time of the trial, she continued to have difficulty in working which she attributed to the injuries she received. The evidence is sufficient to support the jury’s verdict. Appellant’s ground of error two is overruled.

There being no reversible error, the judgment of conviction is affirmed.