author: ELLIS, Justice.

text:
    Curtis Ray McHENRY, Appellant, v. STATE of Texas, Appellee.
    No. B14-84-253-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 21, 1985.
    Harry A. Loftus, Houston, for appellant.
    Roe Morris, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Curtis Ray McHenry appeals from a judgment of conviction for burglary of a habitation with intent to commit sexual assault. The jury found appellant guilty and, after finding the two enhancement paragraphs in the indictment true, assessed his punishment at life in the Texas Department of Corrections. In one ground of error appellant argues that the trial court erred in entering the judgment of guilty because the evidence was insufficient to show that entry into the habitation was with intent to commit sexual assault. We affirm.

When sufficiency of evidence is challenged, the court must view the evidence in the light most favorable to the verdict. Garza v. State, 622 S.W.2d 85, 90 (Tex.Crim.App.1981). Intent may be established by circumstantial evidence. Clark v. State, 543 S.W.2d 125, 127 (Tex.Crim.App.1976); Williams v. State, 537 S.W.2d 936, 938 (Tex.Crim.App.1976); Garcia v. State, 649 S.W.2d 70, 72 (Tex.App.—Corpus Christi 1982, no pet.); Warren v. State, 641 S.W.2d 579, 582 (Tex.App.—Dallas 1982), pet. dism’d, 652 S.W.2d 779 (Tex.Crim.App.1983) (en banc). Intent can be inferred from conduct of, remarks by, and circumstances surrounding the act engaged in by the accused. Ercanbrack v. State, 646 S.W.2d 480, 481 (Tex.App.—Houston [1st Dist.] 1982, no pet.)

Appellant entered the home of the complaining witness, Sandra Stokes, at approximately 1:30 a.m. on October 6, 1983. Stokes, an adult female friend, and one child were in the two bedroom house at the time. Stokes was watching television in her bedroom when she noticed appellant standing in the hallway watching her through the open bedroom door. Appellant entered her bedroom and began stabbing Stokes with a knife. Appellant pushed Stokes onto the bed where he lay on top of her and they struggled over control of the knife. He then tried to choke Stokes when she lost her grip on one of his hands. The struggle awoke Sharon Brady, the female friend, who was in another bedroom with her four year old daughter. Brady heard Stokes yell out, “Who are you? What are you doing here? Please don’t hurt me. Don’t hurt me.” After hearing this, Brady called the police.

Stokes testified that appellant repeatedly told her to “shut up” and called her a “bitch.” Appellant told Stokes she slept naked, even though she was wearing a floor length gown. He told her three times that “he wanted to get his dick wet.”

Appellant stabbed Stokes on the thigh and cut her hand. Stokes was able to free herself and retrieved a pistol from her nightstand. She fired three times. Appellant was hit once, but he was not seriously injured. The police arrived and found appellant in the house and arrested him there.

In Allen v. State, 156 Tex.Crim. 620, 245 S.W.2d 707 (1952), the court found there was sufficient evidence to sustain the burglary with intent to commit rape conviction where the complainant awoke to find the appellant on top of her. In Allen the appellant did not even make a statement with sexual references, as appellant did in the instant case. In Denison v. State, 651 S.W.2d 754 (Tex.Crim.App.1983) (en banc), the court found sufficient evidence of intent to commit rape where the complainant found the appellant masturbating on her bed, and he told her that he wanted to “fuck” her.

In our case, appellant’s statements were of an obviously sexual nature. The only intent that can be inferred from appellant’s statement is the intent to commit a sexual act with the complainant. We find that the evidence was sufficient to show appellant’s entry was with intent to commit sexual assault; therefore, we find that the trial court was correct in entering a judgment of guilty.

Accordingly, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: DRAUGHN, Justice.

license: Public Domain

text:
    Kenneth Dewayne PIERSON, Appellant, v. The STATE of Texas, Appellee.
    Nos. A14-84-300CR, C14-84-479CR and A14-84-480CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 21, 1985.
    Peter W. Lewis, Houston, for appellant.
    Timothy G. Taft, Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This appeal arises from three separate cases involving two convictions for the unauthorized use of a motor vehicle and one conviction for aggravated robbery. Appellant Kenneth Dewayne Pierson presents two grounds of error: (1) violation of the constitutional prohibition against double jeopardy and (2) trial court error during the punishment phase of the trial in refusing to instruct the jury that appellant’s failure to testify should not be held against him.

In 1982 appellant received a six-year probated sentence and a $300 fine after pleading guilty to a charge of unauthorized use of a motor vehicle. In November of 1983, the State charged appellant with two separate crimes arising out of the same incident: unauthorized use of a motor vehicle and aggravated robbery. One month later the State filed a motion to revoke appellant’s probation for the 1982 unauthorized use offense.

As the jury trial began, appellant pled guilty to the 1983 unauthorized use of a motor vehicle, not true to the motion to revoke probation, and not guilty to aggravated robbery. The jury convicted appellant of aggravated robbery and assessed punishment at 45 years for the robbery and 10 years for the 1983 unauthorized use offense. The trial judge revoked appellant’s probation and sentenced him to six years for the 1982 unauthorized use offense, an action appellant does not contest in this appeal. We affirm the revocation of probation. However, we reverse the conviction for the 1983 unauthorized use offense because this conviction violates the prohibition against double jeopardy. We further reverse the aggravated robbery conviction because of trial court error during the punishment hearing and remand this case for a new trial.

Appellant alleges in his first ground of error that the district court violated his constitutional protection against double jeopardy because it convicted him of both a greater and a lesser included offense arising out of the same incident. The aggravated robbery conviction was based on testimony that appellant stole the complainant’s car at gunpoint. No other property was alleged to have been taken. Appellant continued to drive the car until he was arrested approximately one month later. The State then charged him with the unauthorized use of a motor vehicle in addition to charging him with aggravated robbery.

In a similar case the Court of Criminal Appeals held that unauthorized use of a motor vehicle is a lesser included offense of aggravated robbery. Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App.1981). Thus, the district court may not convict appellant for both offenses arising out of the same incident without violating the constitutional prohibition against double jeopardy. U.S. Const. amend. V; see Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977).

The State argues that it was appropriate to indict appellant for both crimes because he committed the aggravated robbery on October 21 but continued to use the car without the owner’s consent until November 25. The State contends that the indictment for the separate offense of unauthorized use was valid because the two crimes were sufficiently separated in space and time. The United States Supreme Court rejected this argument in Brown v. Ohio, 432 U.S. at 169, 97 S.Ct. at 2227. The Court stated, “[t]he Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units.”

Furthermore, in discussing appellant’s guilty plea, the trial judge specifically questioned appellant as follows:

We are not talking about October 22nd, October 23rd, November 25th when you were arrested. We are talking about October 21st. The date of the offense, 1983, did you have [the complainant’s] consent to drive that vehicle?

From this statement, it is clear that the trial court accepted a guilty plea that related to the appellant’s behavior on October 21, the day of the aggravated robbery. These circumstances and the Supreme Court decision in Brown v. Ohio confirm that the aggravated robbery and the unauthorized use should be treated as greater and lesser included offenses. We find that appellant’s conviction for both a greater and a lesser included offense violated the protection against double jeopardy; thus, we sustain appellant’s first ground of error and must now determine the proper remedy for this injustice. The following chronology of the trial court’s proceedings is relevant to this determination: (1) the jury was empaneled, sworn, and instructed to leave the courtroom; (2) appellant pled guilty to the 1983 unauthorized use offense and not true to the motion to revoke probation; (3) the jury returned to the courtroom; (4) appellant pled not guilty to aggravated robbery; and (5) appellant again pled guilty to the 1983 unauthorized use offense in the presence of the jury so that the jury could later assess his punishment in this case.

From this sequence of events, we find that jeopardy initially attached when the jury was empaneled to try the aggravated robbery case. Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978); Torres v. State, 614 S.W.2d 436, 441 (Tex.Crim.App.1981). Appellant was placed in double jeopardy when he subsequently entered into the record a plea of guilty to the 1983 unauthorized use offense. See Thornton v. State, 601 S.W.2d 340, 344 (Tex.Crim.App.1980); 22 C.J.S. Criminal Law § 248 (1961 and Supp.1984). Therefore, we reverse the conviction for the 1983 unauthorized use of a motor vehicle and remand this case to the trial court with instructions to enter a verdict of acquittal.

Appellant contends in his second ground of error that the trial court erred in failing to instruct the jury that appellant’s failure to testify during the punishment hearing should not be held as a circumstance against him. When appellant requested the instruction at the punishment stage, the trial judge refused because appellant’s testimony at the guilt-innocence stage had been officially re-offered for the punishment phase. The trial judge apparently decided that counsel’s re-offer of the earlier testimony precluded an instruction on appellant’s failure to testify at the punishment stage, because appellant technically did testify at this second stage. We disagree with this reasoning.

Appellant’s re-offer of earlier testimony is a mere formality and is unnecessary since a jury assessing punishment may consider the prior testimony even without its being officially re-offered. Brumfield v. State, 445 S.W.2d 732, 740 (Tex.Crim.App.1969). Furthermore, the Court of Criminal Appeals has insisted that it is reversible error when a trial court denies a defendant’s proper request for an instruction on his failure to testify during the punishment stage. Moss v. State, 632 S.W.2d 344 (Tex.Crim.App.1982); Brown v. State, 617 S.W.2d 234 (Tex.Crim.App.1981) (en banc); Stewart v. State, 666 S.W.2d 548 (Tex.App.—Dallas 1984, pet. ref’d). In the instant case, appellant complied with the procedure for requesting a jury charge. TEX.CODE CRIM.PROC.ANN. art. 36.15 (Vernon Supp.1985). No further exception or objection was needed to preserve error. Id. Therefore, we sustain appellant’s second ground of error and hold that even when a defendant’s testimony at the guilt-innocence phase of the trial is formally re-offered at the punishment phase, a trial court commits reversible error in denying a proper request for an instruction on the defendant’s failure to testify at this second stage of the trial. It is important to instruct the jury again of the defendant’s right; otherwise, the jurors may draw improper conclusions from the defendant’s silence. We sustain appellant’s second ground of error, reverse the aggravated robbery conviction, and remand this case to the trial court for a new trial.

We affirm the revocation of probation (Cause No. 361,475); reverse the conviction for the 1983 unauthorized use of a motor vehicle and remand this case to the trial court with instructions to enter a verdict of acquittal (Cause No. 393,128); and reverse the conviction for aggravated robbery and remand this case for a new trial (Cause No. 393,297).


author: JUNELL, Justice.

text:
    Barry Eugene DODSON, Appellant, v. STATE of Texas, Appellee.
    No. C14-84-473CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 21, 1985.

      Anthony Osso, Houston, for appellant.
    James Brough, Asst. Dist. Atty., Houston, for appellee.
    Before JUNELL, ROBERTSON and CANNON, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from an order revoking probation. Appellant pled guilty to felony burglary of a habitation. He was sentenced on March 14, 1983, to five years in the Texas Department of Corrections. On June 16, 1983, his motion for shock probation was granted. On June 22, 1984, the court heard and granted the state’s motion to revoke probation.

In his first ground of error appellant complains that the trial court did not specify in writing the facts and grounds upon which probation was revoked. Appellant filed on the day of the revocation hearing a request that written findings of fact and grounds be filed by the court. The court granted the motion, but no written findings had been filed by the time appellant submitted his brief on appeal.

After appellant’s brief was filed, this court granted the state’s motion to supplement the record. The supplemental record contains an order correcting the record on appeal in compliance with Tex. Code Crim.Proc.Ann. art. 40.09, § 7 (Vernon Supp.1985), and “Findings of Facts and Specifications of Grounds Upon Which Probation is Revoked” signed January 4, 1984. There is no indication in the record that appellant made any objection to this procedure. Because the requested findings are now in the record the first ground of error is overruled.

Appellant’s second ground of error states: “The trial court erred in revoking appellant’s probation on the basis of his failure to complete high school or obtain a G.E.D.” The written findings and grounds filed by the court clearly show that probation was revoked for (1) failure to report to the probation officer (2) failure to pay costs of court and (3) failure to pay a probation supervisory fee. The findings make no mention of failure to obtain a G.E.D. The second ground of error is overruled.

The third ground of error concerns the testimony of the single witness at the hearing, a probation officer. Near the beginning of his questioning the prosecutor established that the probation file in the officer’s possession was (1) a business record kept in the ordinary course of business of the Harris County Adult Probation Department, (2) made by someone with personal knowledge of the events the record describes and (3) made directly after the events noted in the file. See Business Record Act, Tex.Rev.Civ.Stat.Ann. art. 3737e, § 1 (Vernon Supp.1985). It is obvious from the statement of facts that the probation officer was referring to the probation file to answer all the questions asked by the prosecution concerning appellant’s failure to report or pay the necessary fees.

Appellant’s counsel made the following objection: “The witness is utilizing a file in his possession to answer the questions and any information contained in those files would be hearsay until such time as it was admitted into evidence.” Essentially the same objection was made periodically throughout the officer’s testimony.

The probation file is hearsay, but it is admissible hearsay because it fell under the business record exception to the hearsay rule. The only objection available to appellant was that the file itself was the best evidence of its contents. This is not the objection made at the hearing or on appeal.

Even if the objection made did raise the best evidence rule, the file did not have to be physically introduced into evidence, but could be read into evidence. Lumpkin v. State, 524 S.W.2d 302, 304 (Tex.Crim.App.1975), Williams v. State, 508 S.W.2d 83 (Tex.Crim.App.1974). When it is obvious that the witness is testifying from the record, the rule requiring production of the record is complied with if the record is produced and accounted for and available for defendant’s counsel. Alvarez v. State, 508 S.W.2d 100, 102 (Tex.Crim.App.1974), Cozby v. State, 506 S.W.2d 589, 591 (Tex.Crim.App.1974). The third ground of error is overruled.

Finding no reversible error, the order revoking probation is affirmed.


author: SEARS, Justice.

text:
    Gonzalo Londono MEJIA, Appellant, v. The STATE of Texas, Appellee.
    No. A14-84-471-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 28, 1985.

      William Pavlov, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., Winston Cochran, Jr., Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a conviction for possession of more than four hundred grams of cocaine with intent to deliver pursuant to TEX.REV.CIV.STAT.ANN. art. 4476-15, § 4.03 (Vernon 1976). Appellant waived trial by jury and pled not guilty. Punishment was assessed by the court at ten years in the Texas Department of Corrections. In two grounds of error the appellant alleges the evidence is insufficient to support the conviction. We sustain his grounds of error and reverse the conviction.

On March 29, 1983, Officers Slay and Furstenfeld of the Houston Police Department were monitoring passengers departing from a Continental Airlines flight from Miami pursuant to their assignment to the Narcotics Division of the Airport Detail. They observed the appellant leave the plane with another passenger named Alase-do. The appellant and Alasedo waited in the terminal concourse until joined by a man named Morales and a woman, both from the appellant’s flight. The officers testified that all four people seemed nervous as they talked together and glanced furtively about the area. All four then proceeded down the concourse with Morales and appellant walking on one side and Alasedo and the woman walking down the opposite side. Officer Furstenfeld followed Alasedo and the woman. Officer Slay observed Morales and the appellant enter a restroom, and when they exited Slay saw appellant hand Morales a Continental ticket folder. Appellant then left the terminal and walked to the taxi area. Officer Slay followed Morales to the airport baggage claim area where Morales claimed three bags and left the terminal. As he left the terminal, appellant passed Morales and the two spoke briefly before Morales continued 'outside with the bags. Meanwhile, Officer Brown of U.S. Customs followed the appellant and apprehended him. Slay then identified himself to Morales and took him and the bags to a detention area where the appellant, Alasedo and the woman were already detained. Slay recovered from Morales a ticket folder with three baggage claim checks which matched the numbers on the baggage. All four people denied any knowledge of the baggage, one of which was found to contain about four pounds of cocaine. All four people were then arrested. Alasedo and the woman were subsequently released, while appellant and Morales were charged with possession of a controlled substance with intent to deliver. Morales posted bond but left the jurisdiction before trial.

Every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence to support the conviction. See Russell v. State, 665 S.W.2d 771 (Tex.Crim.App.1983) (en banc), and cases there cited. The reviewing court will look at all the evidence in the light most favorable to the verdict or judgment. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (en banc). A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused, although the circumstances need not exclude every hypothesis, only those reasonably consistent with the facts. Russell, 665 S.W.2d at 776. Proof amounting to only a strong suspicion or mere probability is insufficient. Id. at 775. In order for the offense of possession of a controlled substance to be proven, the evidence must show that the accused exercised care, control and management over the drug and that the accused knew the drug was contraband. Morr v. State, 587 S.W.2d 711 (Tex.Crim.App.1979). A finding of joint possession cannot be based solely on proof of mere presence at the place where contraband is found; there must be an affirmative link between the accused and the drug in such manner, and to such an extent, that a reasonable inference may arise that the accused knew of the drug’s existence and its whereabouts. Gutierrez v. State, 628 S.W.2d 57, 60 (Tex.Crim.App.1980), and cases there cited.

The state contends that the affirmative link between the appellant and the contraband is most clearly established by the appellant’s possession of the airline ticket folder which held the claim check for the bag containing the cocaine. The state also contends the appellant’s “guilty knowledge and intent to deliver can all be presumed from his nervous association with the other three passengers culminating in his delivery of the airline ticket folder to Morales.”

Appellant contends, and we agree, that the link is too tenuous to support his conviction. Officer Slay, who arrested appellant, testified that the reason he arrested the appellant was not because he saw him hand Morales the ticket folder but because he thought appellant “was with Mr. Morales and was involved in the same illegal act that Mr. Morales was involved in.” In any event, a review of the record reveals that there is considerable doubt as to whether appellant is linked at all to the ticket folder, tickets, baggage or claim checks involved with the cocaine. Officer Slay testified at the hearing on appellant’s Motion to Suppress that he was unable to keep the ticket folder allegedly passed from appellant to Morales in constant sight. At trial he testified he had no personal knowledge that the folder allegedly given to Morales was the same folder containing the baggage claim checks found on Morales, however, on cross-examination he said it was the same. The only ticket folder found on Morales contained two tickets with the name “Morales” on them; neither contained appellant’s name. Officer Slay testified there was no way to determine to which ticket(s) the claim checks were assigned or who checked the bags in order to receive the claim tickets. Further, airport security does not require a showing of the claim tickets to receive the luggage. All four suspects denied any ownership in the luggage. The three bags contained male and female clothing but the officers did not attempt to determine to whom they belonged. In summary, the appellant was never seen with an airline ticket, baggage claim tickets, baggage or cocaine, nor were these objects linked to the appellant in any way other than through a ticket folder.

The appellant’s own explanation was that he had traveled to Miami for a two-day trip to visit his mother-in-law, had left his airline ticket in the seat pocket on the plane, had taken no baggage because it was a short trip, and was waiting for someone to pick him up from the airport when detained by customs. He testified that he was somewhat nervous about the customs agent because although he is married to an American, he is a Cuban national. The record also indicates that after the customs agent detained him, he waited patiently outside the restroom while the agent searched it, making no attempt to escape. Appellant denied knowing Morales, Alase-do or the woman and denied being nervous until approached by the customs agent. No attempt was made to determine if appellant’s ticket was left on the plane or if appellant was on the airline passenger list. Even if the folder containing the baggage claim tickets found on Morales was the same one given to him by the appellant, there is no evidence that the folder originated with appellant or that appellant had any knowledge of the contents of the baggage. The line is simply too thin to catch this fish.

We hold the evidence is insufficient to prove an affirmative link between the appellant and the cocaine. Accordingly, we reverse the judgment of the trial court and remand with instructions to acquit.


author: DIES, Chief Justice. BURGESS, Justice,

text:
    Clarence Hilbert VALLIER, Appellant, v. The STATE of Texas, Appellee.
    No. 09 84 111 CR.
    Court of Appeals of Texas, Beaumont.
    April 3, 1985.
    Paul Buchanan, Beaumont, for appellant.

      John R. DeWitt, Asst. Crim. Dist. Atty., Beaumont, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was convicted by a jury of the offense of Possession of a Controlled Substance, to-wit, cocaine. Punishment was assessed by the jury at five years in the Texas Department of Corrections, probated, and, in addition, a fine of ten thousand dollars.

Appeal has been perfected to this Court on one ground of error, viz: “The evidence is insufficient to support a conviction for possession of a controlled substance in this cause.”

Appellant has provided us with an able and thorough brief from which we conclude the evidence is insufficient to show appellant was in possession of the contraband found in the house. However, cocaine was found in an automobile in the driveway. The testimony concerning this follows:

“We executed the search warrant for the residence and the vehicles associated. The car was parked in the driveway. I asked [appellant] if it was his and he said it was. He asked me if I needed to look in it and I told him I did. He reached in his pocket and gave me the keys to it.”

The case at bar seems to us to be controlled by Christopher v. State, 639 S.W.2d 932, 935 (Tex.Crim.App.1982), where the Court wrote:

“To support a conviction for possession of marihuana the evidence must affirmatively link the accused to the contraband in such a manner and to such an extent that a reasonable inference may arise that the accused knew of the contraband’s existence and of its whereabouts, [citing authorities] This affirmative link is established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the contraband, [citing authorities]
“In the instant case, the appellant was in possession of the key to the camper which reasonably implies his control over the contraband....”

Appellant’s ground of error is overruled.

The judgment of the trial court is affirmed.

Affirmed.

BURGESS, Justice,

concurring and dissenting.

I concur in part and dissent in part. I concur in the majority’s finding of insufficient evidence to show the appellant was in possession of the contraband found in the house. I respectfully dissent to the majority’s holding that the evidence concerning the contraband found in the automobile was sufficient.

I agree with the majority that the case at bar seems to be controlled by Christopher v. State, 639 S.W.2d 932 (Tex.Crim.App.1982). I disagree, however, with their application, or lack of it, to this case. They correctly cite that portion of Christopher, supra, which sets out the requirement that the accused must have both knowledge and control of the contraband. They also correctly find that the testimony cited would reasonably imply control over the contraband. Nowhere do they cite any testimony or evidence which reasonably implies the accused had knowledge of the contraband. They fail to do so because there is no such evidence in the record.

I would have to presume the majority is adopting a rule that once control over the contraband can be implied, then some type of presumption of knowledge arises. This is not and should not be the law. I would reverse and enter a judgment of acquittal.


author: DICKENSON, Justice.

text:
    VANTAGE MANAGEMENT COMPANY, INC., Appellant, v. VISION INDUSTRIES CORPORATION, Appellee.
    No. 11-84-131-CV.
    Court of Appeals of Texas, Eastland.
    April 4, 1985.
    Rehearing Denied May 16, 1985.
    Jerry L. Hughes & Stanley F. Denman, Bliss & Hughes, Dallas, for appellant.
    Charles 0. Shields & Thomas Noble, Shields, Blankenship & Noble, Dallas, for appellee.
   DICKENSON, Justice.

A Commercial Lease Agreement was executed by Vantage Management Company, Inc. (Lessor) and Vision Industries Corporation (Lessee) on September 10, 1981, covering 12,719 square feet in a Dallas industrial district building for a term of 60 months. The premises were to be used for manufacturing and assembling optical frames for safety glasses. When the lessee learned that the electrical power to the premises was not of sufficient capacity to operate its equipment, disputes and differences of opinion resulted as to whether the lessor or its real-estate agent had misrepresented the capacity of the electrical power or if there had been a mutual mistake as to the suitability of the premises for lessee’s manufacturing plant. Lessee filed suit first, seeking cancellation of the lease and compensatory damages plus relief under the Deceptive Trade Practices Act. Lessor filed a counterclaim, seeking the unpaid lease rentals and attorney’s fees. Following a trial by jury, judgment was rendered that the lessee recover the sum of $29,-832.83 (the amount of its payments to lessor) and declaring that all relief not expressly granted is denied. Both parties appeal. We reverse and remand.

The verdict of the jury is summarized and discussed as set forth below:

Question 1
Defendant’s motion to disregard the answers to Questions 1, 1A, and IB was granted on the basis that these answers have no support in the evidence.
The jury had answered these issues by finding: (1) Yes, Vantage represented to Vision that the building had 600 amperes of electrical service available; (1A) Yes, such representation was false; (IB) Yes, such representation was a producing cause of actual damages to Vision.
Question 2
Vantage did not know that the electrical power available to the premises was only 450 amperes; and Vantage did not know that the electrical system of the building had been damaged by burning.
Question 3
This question was conditioned upon an affirmative answer to question 1 (as to which the motion to disregard was granted) or question 2 (which was answered in the negative).
$29,832.83 is the sum of money Vantage acquired from Vision by means of such representation or such failure to disclose.
Question Jp
After the closing arguments and during the jury’s deliberations, in answer to a question from the jury and over the lessor’s objection, the Court instructed the jury: “Do not answer Question 4 in the Court’s original Charge. Instead, answer Questions 4A and 4B, and if required, 4C below.
The jury then found: (4A) Yes, Vision and Vantage entered into the lease of the building as a result of a mutual mistake of material fact as to whether the electrical system of the building had previously been damaged by burning; (4B) Yes, Vision and Vantage entered into the lease of the building as a result of a mutual mistake of material fact as to what electrical power was actually available; and (4C) Vision and Vantage had the same misunderstanding as to what electrical power was available to the building.
Question 5
The reasonable and necessary attorney’s fees for Vision aré $30,000 in the trial court; $5,000 in the Court of Appeals; and $3,000 in the Supreme Court.
Question 6
The reasonable and necessary attorney’s fees for Vantage are $31,000 in the trial court; $5,000 in the Court of Appeals; and $3,000 in the Supreme Court.

Vantage Management Corporation, as appellant and cross-appellee, has briefed nine points of error. Vision Industries Corporation, as appellee and cross-appellant, has briefed two cross-points. We overrule Vantage’s points of error insofar as they urge that Vantage is entitled to judgment non obstante veredicto for unpaid rentals in the sum of $52,297.05 and attorney’s fees in the sum of $36,000 because there is some evidence to support the jury’s findings of mutual mistake. We overrule Vision’s cross-point which urges that the trial court erred in disregarding the answers to Question 1 and in failing to award its attorney’s fees in the sum of $35,000 in addition to the actual damages which were awarded. We sustain Vantage’s point four insofar as it states that the trial court erred in submitting a new issue on mutual mistake without allowing additional time for oral argument.

The record shows that while the jury was deliberating, the jury sent a note which asked: “Does question # 4 say that Vision and Vantage both believe that there was only 450 amp. in the building at the time of transactions taking place?” The following proceedings then occurred in open court (but not in the jury’s presence):

THE COURT: Go ahead then.
MR. HUGHES: Your Honor, the defendant Vantage Management Company, Inc., objects to the submission of the issue and instruction to 4 a. and 4 b., since it is a post jury argument submission of an issue not authorized by any statute of the State of Texas or any Rules of the Rules of Civil Procedure. Rule 286 provides for additional jury in-struetions to clarify other instructions; does not provide for the submission of new issues which would require new argument and new consideration of the facts. Oh, excuse me, that’s 4 a., b. and c. (Emphasis added)
* ⅜ * * * *
THE COURT: All right. For plaintiff.
MR. SHIELDS: Your Honor, please, we have no objection.
THE COURT: All right. The objections are overruled.
* * * * * *
MR. HUGHES: We further object that these instructions and special issues were not given in open court.
THE COURT: All right.

In connection with a similar situation, Boler v. Coughran, 304 S.W.2d 290 at 291 (Tex.Civ.App.—San Antonio 1957, writ refused) states:

The appellant objected to this action upon several grounds, one being, that he had not been afforded an opportunity to argue such question to the jury. The court qualified the bill by certifying that appellant’s counsel did not request further time to argue the case after the change. Notwithstanding the court’s qualification, we think appellant’s objection was sufficient to call the matter of argument of the new issue to the court’s attention.
(T)he change in the date inquired about amounted to a withdrawal of the original issue and the submission of a new and different issue of fact.
Rule 286, Texas Rules of Civil Procedure, provides for giving additional instructions to the jury after their retirement, and provides that for this purpose they shall appear before the judge in open court in a body, and further provides that no instruction shall be given except in conformity with the rules relating to the charge. The rule also provides that additional argument may be allowed in the discretion of the court. We think the fact that this was a controlling issue in the case, and that the charge presented a new and different issue based on different evidence from that which would support the former issue, the trial court’s action was erroneous
Under such circumstances, the appellant should have been permitted to present argument to the jury on the new issue. The trial court’s failure to permit such argument resulted in probable harm to appellant and requires a reversal of the judgment. (Emphasis added)

We hold that under the circumstances now before us, the trial court erred in submitting the revised question on mutual mistake, over appellant’s objection and without allowing the parties “to present argument to the jury on the new issue.”

The judgment of the trial court is reversed, and the cause is remanded.

      . This appeal was transferred from the Dallas Court of Appeals to this Court on April 26, 1984. See TEX.REV.CIV.STAT.ANN. art. 1738 (Vernon Supp.1985).

      . We need not discuss the other points of error and the other cross-point in view of our holding on point four.


author: OSBORN, Justice.

text:
    Theresa BAKER, Appellant, v. Robert L. ERICSSON, Appellee.
    No. 08-84-00423-CV.
    Court of Appeals of Texas, El Paso.
    April 10, 1985.

      Ann Crawford McClure, El Paso, for appellant.
    Peter S. Peca, Jr., El Paso, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and OSBORN and SCHULTE, JJ.
   OPINION

OSBORN, Justice.

Theresa Baker, the mother of Misty Ericsson, age eight, appeals from a judgment changing the custodial rights and responsibilities of such child to her father. We affirm in part and reverse in part.

Most cases involving custody of children present hard and difficult issues for determination by the trial and appellate courts. This case has been no exception. Robert and Theresa were married in August, 1976, when he was nineteen years old and she was sixteen years old. Their daughter, Misty Ann, was born February 24, 1977, and the parties were divorced in October, 1978. Theresa was named managing conservator. At the time of the divorce, Robert was in the Army. Robert and Theresa lived with his parents at the time Misty was born and she and her daughter continued to live there when Robert was transferred overseas. At the time of the divorce, she was living with her father, Walter Abourezk, and her stepmother, Tracy Abourezk. For most of the last five or six years Misty has been raised and cared for primarily by Tracy Abourezk. Some of the time Theresa lived in the home with her father and stepmother and at other times she had her own apartment. She has subsequently remarried and is now Theresa Baker. Robert lives with his parents and is a student in college.

Robert filed a petition to terminate the parental rights of Theresa on January 14, 1983, and asked to be named managing conservator. In the alternative he sought to modify the divorce decree and be named managing conservator. In February, 1983, Robert filed another motion to modify the prior order which dealt primarily with his visitation rights. The case was specially set for trial several months before the trial date of September 4, 1984. On August 27, 1984, Tracy Abourezk filed a Plea in Intervention alleging that she had cared for and reared Misty for the past seven years and sought to be named managing conservator. On August 30, 1984, Robert filed his first amended motion to modify and opposition to the Plea in Intervention.

Following a lengthy hearing on September 4, 1984, the trial court struck the Plea in Intervention. See: Rule 60, Tex.R.Civ.P. The case then proceeded to trial with only the two parents as litigants. The jury found that since the entry of the divorce decree the circumstances of (1) Misty, (2) Theresa, and (3) Robert have materially and substantially changed; (4) that retention of Theresa as managing conservator would be injurious to Misty; (5) that the appointment of Robert as managing conservator would be a positive improvement for the child; (6) that Theresa voluntarily relinquished possession and control of Misty for more than twelve months and (7) that the appointment of Robert as managing conservator would be in the best interest of Misty. The trial court entered judgment naming Robert as managing conservator and both Theresa and her parents as possessory conservators. Pursuant to Sec. 11.19 of the Texas Family Code, the trial court suspended execution for thirty days. After hearing arguments on a motion filed in this Court, this Court continued the suspension pending our disposition of the appeal.

Theresa asserts in her first point of error that the trial court erred in denying the Plea in Intervention filed by Misty’s stepgrandmother. At the hearing on the pleading to strike the intervention, the trial court, in reliance upon the holdings in O’Connell v. O’Connell, 661 S.W.2d 261 (Tex.App.—Houston [1st Dist.] 1983, no writ) and Vick v. Vick, 626 S.W.2d 569 (Tex.App.—Tyler 1981, no writ), concluded that the Texas Family Code sec. 14.08(b), which requires “at least thirty days’ notice of a hearing on the motion to modify,” was jurisdictional and that Tracy Abourezk had not been diligent in filing her intervention and that without the thirty-day notice the court had no jurisdiction to consider the Plea in Intervention. Roe v. Doe, 607 S.W.2d 602 (Tex.App.—Eastland 1980, no writ) holds that this notice provision is not jurisdictional.

We conclude that the statutory notice provision is not controlling. The case had been specially set. Both Robert and Theresa had thirty-days notice of the scheduled hearing. Tracy, as intervenor, was willing to proceed and waive the thirty-day notice to her. We do not believe the Plea in Intervention should have been stricken on the basis of jurisdictional notice requirements. We recognize that a new party in the suit would necessarily have an effect upon Robert’s trial strategy. If he was not ready to proceed with the stepgrandmother as a party, he could have sought and should have been granted a continuance in view of her entry into the case only a week before trial. But, the main issue before the trial court was the best interest of the child. In such instances, technical rules of practice and pleadings are of little importance in determining issues concerning custody of children. Leithold v. Plass, 413 S.W.2d 698 (Tex.1967). In C- v. C-, 534 S.W.2d 359 (Tex.Civ.App.—Dallas 1976, no writ), the court noted that pertinent facts which may directly affect the interest of children should be heard and considered by the trial court regardless of the lack of diligence of the parties in their presentation of information to the court. Since the stepgrandmother had raised the child for most of her life, we believe she should have been permitted to intervene, although we don’t condone her waiting until a week before trial to do so. But, any error in denying the intervention did not adversely affect Theresa and any error was harmless as to her. Rule 434, Tex.R.Civ.P. Point of Error No. One is overruled.

Appellant next asserts the trial court erred in submitting Special Issue No. 6 and Special Issue No. 7 because the pleading filed by the father less than a week before trial to support these issues had been stricken prior to trial. The Appellee had not previously pled that the mother had voluntarily relinquished possession and control of the child for a period of twelve months. See: Tex.Fam.Code sec. 14.-08(e)(1)(D). We sustain the Point of Error No. Two, but this does not result in a reversal because of other findings which support the judgment. Point of Error No. Three, which also complains about the submission of Special Issue No. 6 and Special Issue No. 7, is moot in view of our determination as to the effect of other jury findings.

The next two points of error contain assertions that there is no evidence to support the submission of Special Issue No. 1, Special Issue No. 2, and Special Issue No. 3 that the answers are against the great weight of the evidence. We pass upon these issues using the standards set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965) and In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

There have been significant changes during the period between the divorce in October, 1978, and the trial in September, 1984. Misty was not yet two years old at the time of the divorce. At the time of the trial she was seven years old and enrolled in the second grade. At the time of the divorce Misty was with her mother, but at the time of the trial she had been living with her stepgrandmother for six years. At the time of the divorce, Robert was in the United States Army and at the time of trial he lived at home with his parents and was enrolled in college. After the child was left with Tracy, she was led to believe that the stepgrandmother was her mother, that Mr. Abourezk was her father, that the Abourezk son was her brother and that her mother was in fact her sister. When she started to school she was enrolled as Misty Ann Abourezk. Since the divorce, the child has become bonded to a person who obviously loves the child but is not a blood relative. The evidence is both legally and factually sufficient to support the jury’s answers of material and substantial changes as to both parents and the child. Points of Error Nos. Four and Five are overruled.

The Appellant in the next four points of error attacks the legal and factual sufficiency of the evidence to support the jury findings that retention of Theresa as managing conservator would be injurious to the welfare of the child, and that appointment of Robert as managing conservator would be a positive improvement for the child.

There was evidence that at times the child had been confused as to family relationships and that she refused to recognize Robert as her father. There has been some instability in the Abourezk household with a divorce being filed by Walter, later a divorce filed by Tracy, which was granted, and then subsequently a remarriage by Misty’s grandfather and stepgrandmother. Sometime since the first divorce Theresa has remarried, but there was no testimony about her second husband or their marriage relationship. There was testimony that she had received all the child support paid by Robert and used it for her own needs and not for Misty. We find the evidence to be legally and factually sufficient and overrule Points of Error Nos. Six, Seven, Eight and Nine.

We conclude that the evidence and the jury findings were sufficient for the trial court to remove Theresa Baker as managing conservator. In order to place Robert Ericsson and Tracy Abourezk in the positions they should have been in had the intervention been granted, we remand for a new trial on the issue of whether Robert or Tracy should be named managing conservator. We affirm that part of the judgment which removes Theresa Baker as managing conservator. We reverse that part of the order which appoints Robert Ericsson as managing conservator. We affirm that part of the order which names Theresa Baker and Walter and Tracy Abourezk as possessory conservators and, by reversing that part of the order which appoints Robert Ericsson as managing conservator, we reinstate the provision of the original decree which named him possesso-ry conservator. We leave our suspension order in effect until the trial court can enter such temporary custody orders as may be required. Tex.Fam.Code sec. 11.11. We direct the trial court to forthwith enter such orders as may be necessary to provide for the safety and welfare of Misty Ann Ericsson, pending a new trial.


author: EVANS, Chief Justice.

text:
    Donn R. WILSON, Appellant, v. INDUSTRIAL LEASING CORPORATION, Appellee.
    No. 01-84-0705-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 18, 1985.
    Rehearing Denied April 18, 1985.
    William J. Mays, Mays & Norwood, Houston, for appellant.
    Jerry W. Bussell, Stafford, for appellee.
    Before EVANS, C.J., and COHEN and DUNN, JJ.
   OPINION

EVANS, Chief Justice.

The original opinion, filed February 28, 1985, is hereby withdrawn, and the following opinion is substituted:

This is a writ of error proceeding to review a post-answer default judgment. The principal question before us is whether the record shows that proper notice of the trial setting was provided to the appellant as required by Texas Rule of Civil Procedure 245. We find the record deficient in this respect, and we therefore reverse the trial court’s judgment and remand the cause for a new trial.

The appellee, Industrial Leasing Corporation, sued the appellant, Donn R. Wilson, and also named as defendants Robyn Wilson, Peter D’A. Cook, and Alida Cook, alleging breach of a five-year lease of restaurant equipment. The appellee alleged that the defendant Peter D’A. Cook executed the lease as president of the lessee, Old West Provision Company, and that all the named individual defendants were liable as guarantors of the lease. On March 12, 1984, the trial court entered a final judgment in favor of the appellee and against all named defendants other than Robyn Wilson, who had been severed from the action. The final judgment recites that the matter was heard on February 28, 1984, that the defendants Peter D’A. Cook and Alida Cook had been duly served with citation and wholly made default, and that the defendant Donn R. Wilson had filed an answer, but having been duly notified to appear, failed to appear in person or by attorney and wholly made default. The trial court’s judgment awarded the appellee $50,826.47, plus $2,500 as attorney’s fees.

A writ of error constitutes a direct attack on the default judgment, and for an appellant to obtain relief by this means, the invalidity of the judgment must be disclosed by the papers on file in the case. Pace Sports, Inc. v. Davis Brothers Publishing Co., 514 S.W.2d 247 (Tex.1974) (per curiam). The reviewing court will look only to the record on file in the trial court to determine invalidity. Fears v. Mechanical & Industrial Technicians, Inc., 654 S.W.2d 524, 528 (Tex.App.—Tyler 1983, writ ref’d n.r.e.). The usual presumptions of a judgment’s validity are not indulged in a writ of error proceeding. McKanna v. Edgar, 388 S.W.2d 927, 929-30 (Tex.1965).

The appellant contends in his first point of error that the trial court erred in entering judgment, because his counsel withdrew from the case without his knowledge, and after such withdrawal, he was never given notice of the trial setting.

Rule 245 of the Texas Rules of Civil Procedure provides that the court may set contested cases for trial on motion of any party, or on the court’s own motion, with reasonable notice to the parties of not less than 10 days. Rule 21a recites that any notice, other than the original citation upon filing suit or as otherwise expressly provided, may be served by delivering a copy of the notice to the party to be served either in person, by registered or certified mail, or in any other manner the court directs. A failure to give this required notice constitutes a denial of a party’s due process right to be heard in a contested case. Chow v. Dole, 677 S.W.2d 220 (Tex.App.—Houston [1st Dist.] 1984, no writ); Williams v. Holley, 653 S.W.2d 639, 640 (Tex.App.—Waco 1983, writ ref’d n.r.e.).

In the writ of error proceeding at bar, the recitation of due notice of the trial setting in the judgment constitutes some, but not conclusive, evidence that proper notice was given. See P. Bosco & Sons Contracting Corp. v. Conley, Lott, Nichols Machinery Co., 629 S.W.2d 142, 143 (Tex.App.—Dallas 1982, writ ref’d n.r.e.); Roberts v. Mullen, 417 S.W.2d 74, 78 (Tex.Civ.App.—Dallas 1967), aff'd, 423 S.W.2d 576 (Tex.1968). Where a judgment recitation is effectively rebutted by other evidence in the record, it is no longer taken to be true. See P. Bosco & Sons Contracting Corp., 629 S.W.2d at 143.

In the statement of facts of the trial proceeding, only a brief discussion between the court and the appellee’s counsel relates to the issue of whether the appellant had actual or constructive notice of the trial setting, as required by rule 245:

THE COURT: All right, and what about the location of the Defendant, Donn Wilson?
MR. BUSSELL: My efforts to locate Donn Wilson consisted of sending correspondence to the last known address in Houston, and that letter was returned with a new forwarding address. Correspondence was sent out to the new forwarding address, which was returned with no forwarding address listed.
I then asked my client, Industrial Leasing, to make a search in order to locate Donn Wilson. That search resulted in an address in Sarasota, Florida. Correspondence to that address was returned with no forwarding address.
A subsequent search by Industrial Leasing has led to Canada: “No Address,” “Unknown.”
Our efforts to locate Donn Wilson have been fruitless.
Of course, the other two, the Cooks, have been severed and defaulted.
And I also contacted one attorney that had previously represented Donn Wilson, and had been allowed to withdraw, and he had no information available as to the whereabouts of his former client. Plaintiff rests.

The appellee’s brief suggests that a “trial certification request” was sent by regular and by certified mail on January 28, 1983, to the appellant’s last two known addresses in Houston and Florida and that both envelopes were returned with the notation, “Moved, Left No Address.” We find several cancelled postmarked envelopes in the record. The appellee’s brief further suggests that this information was communicated to the trial court at the certification hearing and that the case was certified for trial on February 20, 1984. However, these “facts” were not specifically developed at trial, where the appellee’s counsel stated only that “correspondence” sent to the appellant had been returned. Although a letter from the appellee’s attorney to the clerk of the 269th District Court refers to an enclosed “trial certification request,” we do not find such a request in the record. '

There is no evidence, moreover, that proper notice of the actual trial setting was given pursuant to rule 245. The testimony at trial that all correspondence sent to the appellant was returned as undeliverable indicates that the appellant had no actual notice of the trial date. As discussed above, the appellee’s brief suggests that constructive notice of the trial certification request was attempted, but this court has previously held that notice of a trial certification request, standing alone, does not constitute sufficient notice of the trial setting as required by rule 245. Chow v. Dole, 677 S.W.2d 220.

Since there was no evidence that the appellant received actual notice of the trial date, nor was there evidence of sufficient constructive notice of the trial setting, we conclude that the record does not demonstrate that the appellant had adequate and reasonable notice of the trial date pursuant to rules 245 and 21a. We sustain the first point of error. Because of this disposition, we need not reach the appellant’s other points of error.

In view of further proceedings, however, we briefly consider the second point of error, in which the appellant contends that judgment should not have been rendered against him as a guarantor of the lease, since no judgment was obtained against the contract’s primary obligor, Old West Provision Company. We note that the terms of the guaranty agreement expressly waive any right to have the primary obligor joined in a suit as a party defendant. -Such agreements are valid and enforceable. See Yandell v. Tarrant State Bank, 538 S.W.2d 684, 687-88 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n.r.e.). We overrule the second point of error.

The judgment of the trial court is reversed, and the cause is remanded for a new trial.


text:
    Charles Earl SAMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. A14-84-576-CR.
    Court of Appeals of Texas, Houston, (14th Dist.).
    April 18, 1985.

      Brian W. Wice, Houston, for appellant.
    John B. Holmes, Dist. Atty., Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.
   OPINION

SEARS, Justice.

This is an appeal from a conviction for burglary of a habitation with intent to commit theft. Appellant pled not guilty and a jury sentenced him to twenty-five years in the Texas Department of Corrections upon a finding of true to the enhancement allegation. In a single ground of error the appellant asserts that he was denied reasonably effective assistance of counsel at trial. We find no error and affirm.

Vickie Nail, the former maintenance manager at the Chateau Dijon Apartments, testified that on March 6, 1984, she observed a black male later identified as the appellant in the area of apartment 24 around 3:00 p.m. She did not recognize him as a resident of the complex so she called security. Nail then returned to apartment 24 and observed that the bedroom window was broken and the bedroom “a mess.” Wayne Humbles, the resident in apartment 24, testified that his apartment was broken into sometime on March 6, 1984, while he was at work. When he returned home that evening the apartment was “in shambles” and his television set, stereo, speakers and some clothing were missing. He testified he did not know appellant nor did he give him consent to enter his apartment. He later found a black address book under his bed which did not belong to him or his friends but which contained appellant’s name.

Larry McGlassen, another resident, testified that he was at the complex the afternoon of March 6 and saw a black male he later identified as the appellant. He saw appellant loading filled duffle bags into a Yellow Cab parked near apartment 24. McGlassen and another neighbor followed the cab and wrote down the license number before losing sight of the cab. A.W. Hardesty is a Houston police officer who lives at the apartment complex and works off-duty as a security guard. He was called to the complex on March 6, and received a description of the alleged burglar and the cab number from Nail. Hardesty called Yellow Cab to determine who was driving the cab that picked up appellant at the complex, then spoke with the driver and dispatched a police officer to the place the driver had dropped off appellant. The cab driver testified that he was called to pick up a fare at apartment 24 and upon arrival the appellant flagged him down in the complex parking lot. Appellant had a television, speaker and turntable wrapped in sheets, which he said he was taking because the apartment resident “owed him money for dope.” The driver noticed a car following them and appellant offered him a bigger tip if he could lose the car. After appellant was dropped off, the driver called his superior to report what happened and minutes later the police contacted him. Officers Moran and Quinlan testified that they investigated the burglarized apartment, found signs of forced entry and received the address book which contained appellant’s name.

Appellant details several instances before and during trial which he asserts constituted ineffective assistance of counsel.

The Sixth Amendment to the Constitution of the United States guarantees an accused “effective assistance” of counsel. The most recent authority which determines the standards used to evaluate whether counsel’s assistance is so ineffective as to require reversal of a conviction is Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court established a two-part test to determine effectiveness of assistance. First, the accused must show that counsel’s performance was so deficient that he was not functioning as “counsel” guaranteed by the Sixth Amendment. The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Second, the accused must show that counsel’s errors were so serious as to deprive the accused of a fair trial. Id. at 2064.

With these standards in mind we review the instances which appellant claims denied him effective assistance of counsel.

Appellant first complains that counsel filed only a “boilerplate” Motion to Suppress while failing to file specific motions to suppress the oral statement made by appellant to the cab driver concerning the money allegedly owed for dope and the admission into evidence of the address book. He also complains that counsel requested only an oral Motion for Continuance when it appeared he was not prepared to proceed to trial, and that counsel did not request the court reporter to transcribe bench conferences. However, appellant fails to show how a more specific motion would have led to suppression of any harmful evidence. The cab driver’s testimony regarding appellant’s statement was not to show, as appellant contends, an extraneous offense, but rather to show why the driver thought appellant might be a burglar. The mere filing of pre-trial motions, for the sake of appearance, does not in and of itself effectively aid the defense of an accused. Appellant has failed to point out what motions could or should have been filed and how he would have benefitted from them. Hunnicutt v. State, 531 S.W.2d 618, 624 (Tex.Crim.App.1976). In addition, the record reflects that the trial court considered the merits of the oral request for continuance and considered it to be without substance. Even though the bench conference of which appellant complains was unrecorded, he fails to show what evidence would have been presented in aid of his defense.

Appellant next complains that counsel conducted too narrow a voir dire examination. However, two potential jurors of whom appellant complains stated they would want to hear testimony from the accused before they could convict him, which would not, as appellant asserts, have been harmful to him. The third venireman of whom appellant complains did not serve on the jury.

Appellant also complains that counsel failed to investigate the facts concerning appellant’s repeat offender status and was not prepared on the case. Appellant was indicted in another similar cause and counsel was prepared to go to trial under one cause but not the other. However, counsel stated the facts were similar in the two causes and he would proceed to trial. Appellant does not specify what additional evidence would have been available had the continuance been granted.

Lastly appellant complains of counsel’s ignorance of the law, in particular regarding the oral Motion for Continuance, general objections, the failure to exclude appellant’s pen packet, the failure to request a limiting charge on the “dope” statement, appellant’s failure to testify, and the failure to call witnesses at the punishment phase of trial. These complaints are likewise without merit.

Viewing the totality of the circumstances, we can not hold that appellant did not receive a fair trial nor do we find that these “errors” contributed to his conviction. Appellant failed to hold any post-trial hearing to determine the competence of his trial attorney, whether the acts complained of represented incompetence or trial strategy and whether or not these acts prevented appellant from getting a fair trial. See Dunn v. State, 650 S.W.2d 139 (Tex.App.—Houston [14th Dist.] 1983, no pet.). The evidence of guilt was overwhelming and could not have been overcome by trial counsel.

We overrule appellant’s ground of error and affirm the conviction.


author: PER CURIAM.

text:
    Robert VALLES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 08-85-00098-CR to 08-85-00101.
    Court of Appeals of Texas, El Paso.
    April 24, 1985.
    Discretionary Review Denied May 29, 1985.

      Joseph A. Calamia, El Paso, for appellant.
    Steve Simmons, Dist. Atty., El Paso, for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.
   OPINION

PER CURIAM.

Appellant pled guilty on December 28, 1984, to four indictments alleging official misconduct under Tex.Penal Code Ann. sec. 39.01(a)(2). Adjudication of guilt was deferred and Appellant was placed on four years adult probation. An original condition of probation prohibited Appellant’s consumption of alcohol. On January 15, 1985, the conditions were modified, deleting the alcohol consumption prohibition. On March 7, 1985, Appellant was arrested for driving while intoxicated. The State moved to revoke probation on March 11. On March 14, Appellant’s prerevocation bail was set at $15,000.00. On March 28 and 29, the revocation hearing was conducted. The court found Appellant to have violated a condition of his probation by committing another offense, driving while intoxicated. Guilt was adjudicated and punishment assessed at four years imprisonment under each indictment. The transcript of that hearing is not before us, but the parties have filed an agreement that for purposes of reviewing the appellate bail denial this Court may assume that sufficient evidence was introduced to support the driving while intoxicated finding.

Appellant then gave notice of appeal, not from the revocation but from the initial plea, and asked that appellate bail be set under Tex.Code Crim.Pro.Ann. art. 44.04(c) (Vernon Supp.1985). A hearing was held on April 9 and bail was denied. This is an appeal from denial of bail under Article 44.04(g).

At the hearing, the State urged denial of bail on two grounds: (1) that Appellant has no right to appeal under Tex.Code Crim.Pro.Ann. art. 42.12, sec. 3d(b) (Vernon 1979) and (2) there was sufficient evidence for the court to find good cause to believe Appellant would commit further offenses if released on bail. Tex. Code Crim.Pro.Ann. art. 44.04(c) (Vernon Supp.1985). The court apparently accepted both arguments. The question is, did the court actually deny bail on both grounds. The order simply reflects a denial. Findings of Fact and Conclusions of Law were filed on April 18, stating:

This Court further finds that no bond should be placed on the defendant, Robert Valles, as it is the understanding of this court under section 42.12 3 d of the Texas Penal Code that a person who is sentenced under deferred adjudication and whose probation is revoked at a later date by the Court due to a violation of probation by the probationer, that there is no appeal from that order and that the defendant should be placed forthwith in the Texas Department of Corrections to serve the sentence set out by the Court

This is clearly an erroneous reading of Article 42.12, sec. 3d(b). It is true, and conceded by Appellant, that no appeal may challenge the revocation proceeding and the decision to adjudicate guilt. Subsection (b) concludes, however:

After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant’s appeal continue as if the adjudication of guilt had not been deferred [emphasis added].

Thus an appeal does lie following a revocation of deferred adjudication probation, not from the revocation but from the initial plea itself. In fact, such an appeal cannot be taken until an adjudication of guilt occurs. Such an appeal is the same as any other appeal from a guilty plea, and while certainly limited in scope, is nonetheless an appeal entitling the defendant to invoke the provisions of Article 44.04.

Under Article 44.04(c), the trial court may still deny bail if shown good cause to believe the Appellant is likely to commit another offense if released. The real question is whether this was a basis for the court’s denial of bail. Reading the court’s comments at the bail hearing and the Findings of Fact and Conclusions of Law, it would seem that the court relied only on the erroneous basis of no right to appeal and simply gave an advisory opinion as to the second theory of denial.

[E]ven if, the appellate Court decides that the defendant is entitled to an appeal bond; the trial Court would refuse bond under Act 44.04(b) CCP. That it appears the defendant is likely to commit another offense while on bail [emphasis added].

(Findings of Fact and Conclusions of Law, p. 2) (Note: the reference to 44.04(b) is clearly inapplicable to this case as it relates solely to convictions for certain drug offenses or where the punishment exceeds fifteen years imprisonment). The question is did he or would he deny bail on this basis. The question is similar to interpreting an intermediate appellate court’s comments on a ground of error not actually reached because of the outcome of some other appellate issue.

Reading the trial court’s comments in the statements of facts and its Findings of Fact and Conclusions of Law, we do not find that it based its decision on the criteria set out in Article 44.04(c), but solely upon an erroneous understanding of the appeal of the official misconduct convictions. The concluding paragraph of the Findings of Fact and Conclusions of Law can only be reasonably read as a prospective comment by the trial court as to the probable outcome of its decision if required to act under Article 44.04(c). We express no opinion as to the sufficiency of the evidence that Appellant is likely to commit further offenses if released on bail. The order must be reversed and the cause remanded to allow the trial court to first exercise its discretion under the proper statute. Under Article 44.04, denial of bail may still be a viable outcome within the court’s discretion as supported by the evidence. Ex parte Byers, 612 S.W.2d 534, 537 (Tex.Crim.App.1980).

Appellant has asked this Court to set bail itself. Under Article 44.11, once the record has been filed in this Court, jurisdiction passes from the trial court “except as to bond as provided in Article 44.-04.” The initial setting of bail is the duty of the trial court, subject to review by appeal under Article 44.04(g). Byers at 537. The lower court has made no such determination, and this Court declines to set an original amount of bail. Appellant’s ground of error is otherwise sustained.

The order of the trial court denying bail is reversed and the cause is remanded for consideration of bail under Article 44.04(c).


author: DIES, Chief Justice.

text:
    John Doras HAMNER, Appellant, v. The STATE of Texas, Appellee.
    No. 09 84 068 CR.
    Court of Appeals of Texas, Beaumont.
    April 24, 1985.
    Rehearing Denied May 15, 1985.
    Phillip Swisher, Conroe, for appellant.
    Mary Ann Turner, Conroe, for appellee.
   OPINION

DIES, Chief Justice.

Appellant was indicted for the offense of aggravated sexual abuse of a child, with one enhancement. Trial began on January 9, 1984, and a mistrial was granted on January 12, 1984, because the jury was deadlocked. Appellant was represented by a court-appointed counsel.

On January 17, 1984, appellant filed a motion requesting partial transcripts, requesting the court to order the court reporter to transcribe and provide to him without cost the testimony of two witnesses. Appellant alleged in the motion that such testimony was necessary “to adequately prepare for the retrial of his case,” and that the appellant had previously satisfied the court as to his inability to pay the costs involved. The court denied this motion on January 19, 1984.

On January 30, 1984, the second jury trial commenced, and resulted in a conviction on February 1, 1984. The court assessed punishment at thirty years confinement in the Texas Department of Corrections. Appeal has been perfected to this court.

Appellant’s sole ground of error complains of the trial court’s order of January 19, 1984, denying appellant the transcription of testimony of two witnesses in the first trial. We reverse the case and remand it for a new trial.

In Armour v. State, 606 S.W.2d 891, 894 (Tex.Crim.App.1980), the Court was faced with the same situation. It wrote:

“Although in Billie[] this Court did not explicitly hold that the State had the burden of proof regarding need, it expressly relied on the above-quoted portions of Britt[] discussing the burden of proof. In accordance with Billie, we now hold that the defendant’s need for a transcription of the State’s testimony from a former trial will be presumed, and the State has the burden of showing a lack of need if it desires to oppose the defendant’s motion for a transcription of the testimony.” (emphasis supplied)

In the case at bar the State showed nothing.

The State’s answer is that, on the hearing for a new trial following the conviction in the second trial, it was shown appellant was not indigent because he owned certain property (even though the court approved payment of the court-appointed attorney for both trials on February 24, 1984). The answer to this is that the hearing on the motion for new trial was on April 6, 1984. There is nothing in the appellate record to suggest that the trial court had any such evidence before it on January 19, 1984, when the court refused the motion for the transcription of the testimony in the first trial. He may have heard some type of evidence at the first trial, but we do not know. We sustain the appellant’s ground of error.

The judgment of the trial court is reversed and the case is remanded for a new trial.

Reversed and Remanded.

      . Billie v. State, 605 S.W.2d 558 (Tex.Crim.App.1980).

      . Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).


author: DUGGAN, Justice.

text:
    Felton PATT, Appellant, v. Almatine PATT, Appellee.
    No. 01-84-0496-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 25, 1985.

      David Heller, Stolaroff & Heller, Houston, for appellant.
    Johnny L. Charles, Houston, for appellee.
    Before DUGGAN, WARREN and HOYT, JJ.
   OPINION

DUGGAN, Justice.

This is an appeal from that portion of a divorce decree dividing the parties’ community property.

The parties had been married for over 31 years before their separation in June, 1982. The divorce was granted on the basis of irreconcilable differences without regard to fault of either party. The eleven children of the marriage were all over eighteen years of age at trial time in February, 1984.

The community estate consisted of a homestead valued by the parties at $40,000 (subject to a mortgage of approximately $8,000), a 1977 Grand Prix automobile, and household furniture and fixtures purchased originally for between $1,500 and $2,200, and situated in the homestead residence. Neither party owned separate property. The court awarded each party (1) an undivided one-half interest in the homestead, and (2) ownership as separate property of the household furnishings, appliances, fixtures, wearing apparel, jewelry, and other personal property in his or her own possession or control. The court further awarded the appellee, Almatine Patt, the automobile and the exclusive use and possession of the home during the remainder of her life, subject to her timely payment of the house note, taxes, insurance, and reasonable maintenance and upkeep. All of the household furnishings, appliances and fixtures were situated in the homestead residence and thereby became the separate property of the appellee wife.

Appellant urges by his points of error one, two, three, and six, that (1) the trial court divided the community property in a manner that was “disproportionate, inequitable, and manifestly unjust and unfair,” because the effect of the decree was to award all of the personalty and realty to the wife; and (2) there is no evidence to support such a division.

Although the appellant initially requested findings of fact and conclusions of law from the trial court, he failed to call attention to the court’s omission to file them, as required by Tex.R.Civ.P. 297, and none were filed. In the absence of findings of fact and conclusions of law, we must affirm the judgment if it can be supported on any theory presented by the record, viewing the evidence in the light most favorable to the appellee. Goodyear Tire & Rubber Co. v. Jefferson Constr. Co., 565 S.W.2d 916, 918-19 (Tex.1978); Thomas v. Thomas, 525 S.W.2d 200, 202 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ).

Tex.Fam.Code Ann. sec. 8.63 (Vernon Supp.1984) provides:

In a decree of divorce or annulment the Court shall order a division of the estate of the parties in a manner that the Court deems just and right, having due regard for the rights of each party and any children of the marriage....

Section 3.63, supra, affords the trial court wide latitude and discretion in dividing the community estate of the parties in a divorce suit, Vallone v. Vallone, 644 S.W.2d 455, 460 (Tex.1982), and the exercise of this discretion will not be disturbed on appeal without a clear showing of abuse of discretion. Cockerham v. Cockerham, 527 S.W.2d 162, 173 (Tex.1975); Wallace v. Wallace, 623 S.W.2d 723, 726 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref d n.r. e.). The trial court’s discretion is not unlimited, however, and there must be some reasonable basis for an unequal division. Tarin v. Tarin, 605 S.W.2d 392, 394 (Tex.Civ.App.—El Paso 1980, no writ). The division of property must not be so disproportionate as to be inequitable and the circumstances must justify awarding more than one-half to one party. Thomas v. Thomas, 525 S.W.2d 200 (Tex.Civ.App.—Houston [1st Dist.] 1975, no writ). Among the factors that a court may look to as justification for an unequal division of community property are:

(1) the nature of the property;
(2) the relative earning capacities and business experience of the spouses;
(3) educational background of the parties;
(4) size of separate estates;
(5) the age, health and physical condition of the parties;
(6) fault in breaking up the marriage;
(7) the benefits the innocent spouse would have received had the marriage continued; and
(8) probable need for future support.

Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981); Clay v. Clay, 550 S.W.2d 730 (Tex.Civ.App.—Houston [1st Dist.] 1977, no writ).

At the time of trial, the appellee wife was 51 years of age. Four of the parties’ eleven children were still living with her at home. The youngest child was an unemployed eighteen year-old high school student, and the three older children were employed. Appellee testified that she had received no financial assistance from appellant since he left the house (other than the worker’s compensation settlement sum discussed in point of error four), that the children had helped her by paying the house notes and other bills, that she was not employed, and that she had no source of income. There was no testimony that she had ever worked outside the home, or that she possessed any marketable job skills.

While there was no testimony as to appellant’s age, appellee’s original petition for divorce, filed December 1, 1982, alleged that appellant was 49 years of age. Appellant testified that he had been living with his sister for about two years; that he pays her $100 per month from his only source of income, a monthly social security disability check in the amount of $406; and that he is unable to work because of his physical disability. He testified that since leaving the parties’ home, he has remained under a doctor’s care for an emphysema condition; that he was hospitalized for this condition after his workers’ compensation settlement; but that since the separation he has not had any further attacks that have required hospitalization.

Although a trial court is specifically authorized by sec. 3.63 of the Family Code to take into consideration the rights of “any children” of a marriage when dividing the estate of the parties, and is not limited to the consideration of the rights of minor children only, Young v. Young, 609 S.W.2d 758, 760 (Tex.1980), there was no testimony in the record that the children living at home had either mental or physical disabilities that would make them dependent on either party. Three of the four children living at home were employed. Although the youngest child was still attending high school at the time of trial, there was no testimony that he had any special needs that would justify the appellee wife having exclusive use of the homestead after his graduation from high school. McKnight v. McKnight, 535 S.W.2d 658, 660 (Tex.Civ.App.—El Paso), rev’d on other grounds, 543 S.W.2d 863 (Tex.1976).

Neither party has any separate property, and their only significant community asset is the home and its furnishings and fixtures. Taking into consideration appellant’s age and physical condition, it is highly possible, as he asserts in his brief, that he will never receive anything more than the remainder interest awarded by the court in the residence property, the most valuable item of community property owned by the parties. Tarin v. Tarin, 605 S.W.2d 392, 394 (Tex.Civ.App.—El Paso 1980, no writ).

In considering the needs of the parties and the surrounding circumstances, the trial court appears to have shown a primary and realistic concern that each spouse have current living expenses. The court apparently concluded that the appellant’s subsistence needs are met by his $406 monthly social security disability benefit, which provides him current funds that, after payment of $100 to his sister for room and board, leaves him $306 monthly for other living expenses. The court’s award of the exclusive use of the house to the ap-pellee/wife provides her a place of residence and the means to earn current income by renting either to her children or other persons. Although testimony showed that three adult children living at home presently provide the appellee her sole current income, the court may have recognized that the adult children’s living arrangement was temporary. If the children move, appellee might be able to rent a portion of the house to other persons to earn current living expenses. Should she be unable to do so, and be unable to satisfy mortgage, tax, insurance and maintenance payments on the residence premises, the property would have to be sold, at which time appellant would receive payment for his community one-half interest. Appellant’s equity would have increased in value because of interim current monthly payments made by appellee. We are unable to say that the trial court’s division of the estate constituted, in the circumstances, an abuse of discretion.

Thomas v. Thomas, supra, relied on by appellant, is distinguishable in that it concerns the division of a relatively abundant estate between spouses who each had jobs and current salaries. Our opinion in Thomas found an abuse of discretion in a community estate division that awarded 56% of a $61,000 divisible community estate (only part of which was homestead equity) to the graduate engineer, husband, who had a $23,500 salary and $12,500 in withdrawable retirement benefits, while awarding only 44% to the secretary-wife who had a $9,900 salary.

Appellant’s points of error 1, 2, 3, and 6 are overruled.

By his fourth point of error, appellant contends that the trial court erred in rendering judgment that his wife have the exclusive use of the homestead until her death because such a disposition is not supported by the pleadings. We disagree. Appellee’s original pleadings, which were never amended, requested that the trial court, in dividing the community property, award her the parties’ house or, alternatively, award her the house for her use and benefit and that of the youngest child until he reached the age of eighteen. Appellee testified at trial, without objection, that she' needed to retain the home so that she and the child would have a place to live.

Ex parte Fleming, 532 S.W.2d 122 (Tex.Civ.App.—Dallas 1975, no writ), cited by appellant, is distinguishable from our case. In Fleming, the court found that there was no claim by either party in their pleadings upon which the trial court could have based its judgment. In our case, appellee’s original petition requested that the house be awarded to her or, alternatively, that it be set aside for her use and benefit until the youngest child reached eighteen years of age. In addition, she requested in her testimony that the court award her the homestead for her own use and the use of the four children living at home.

The appellant had notice of the nature of the relief being sought by the appellee with respect to the community homestead in her petition for divorce. Tex.R.Civ.P. 47(a). Further, with respect to pleadings under sec. 3.63 of the Texas Family Code, the trial court has authority to construe the pleadings more liberally than in other civil cases. Buchan v. Buchan, 592 S.W.2d 367, 372 (Tex.Civ.App—Tyler 1979, writ dism’d w.o.j.); Poulter v. Poulter, 565 S.W.2d 107, 110-11 (Tex.Civ.App.—Tyler 1978, no writ); Zamba v. Zamba, 498 S.W.2d 695, 698 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d w.o.j.). Appellant’s fourth point of error is overruled.

Appellant’s fifth point of error contends that the trial court erred in the division of the community property by not taking into account the disposition of his worker’s compensation award.

Appellant alleges that although he should have been the beneficiary of 50% of his worker’s compensation award, he realized only 10% of the award, with the remainder being spent by the appellee. He argues that because a portion of the compensation settlement is separate property, the court’s division of the community home should have reflected this inadequate disposition. This contention is not supported by the record.

The record before us reflects that appellant received a $13,000 worker’s compensation settlement three years before trial; that on the advice of his attorney, he placed the money in an account in the name of appellee and their daughter, Dorothy; that the money was used to make house note payments, buy groceries, and pay community debts; and, that Dorothy Patt made withdrawals from the account for her father on several occasions.

Tex.Family Code Ann. sec. 5.01(a)(3) (Vernon 1975) provides that “[a] spouse’s separate property consists of ... the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage ” (Emphasis added). Graham v. Franco, 488 S.W.2d 390, 396-97 (Tex.1972). Section 5.02 of the Family Code provides that “[pjroperty possessed by either spouse during or on dissolution of marriage is presumed to be community property.” To rebut this presumption, the person seeking to prove the separate character of any property must do so by “satisfactory evidence.” Tarver v. Tarver, 394 S.W.2d 780, 783 (Tex.1965).

Further, Tex.Family Code Ann. see. 4.02 (Vernon Supp.1984) provides that both husband and wife are obligated to furnish support for community living. If no community funds are available, separate funds must be utilized, and when spent for community living these separate funds are deemed a gift to the community for its well-being and use. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 683 (1953).

It is undisputed that appellant’s worker’s compensation settlement was received while he was married to the appellee. Nothing in the record shows how much of appellant's settlement was for accrued compensation payments, or for future lost earning capacity, or for personal injuries. The appellant did not meet his burden to show that any of the settlement was his separate property.

Appellant was not entitled to reimbursement in the form of a greater part of the community estate for that portion of his worker’s compensation settlement he alleges he did not actually receive. The evidence in the record showed that the funds from the settlement were used for the benefit of the community estate. Appellant’s fifth point of error is overruled.

The judgment is affirmed.


author: STEPHEN F. PRESLAR, Chief Justice.

text:
    Steven Blaine JONES a/k/a Daniel Raymond Mawkin, Appellant, v. The STATE of Texas, Appellee.
    No. 08-82-00223-CR.
    Court of Appeals of Texas, El Paso.
    May 15, 1985.
    Rehearing Denied June 5, 1985.

      Charles Mallín, Joseph Calamia, El Paso, for appellant.
    Steve SimmonSj Dist. Atty.; E1 Pas0) for appellee.
    Before STEPHEN F. PRESLAR, C.J., and WARD and OSBORN, JJ.
   OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from a conviction for murder. The jury assessed punishment at ninety-nine years imprisonment. Appellant was indicted for capital murder in the beating and strangulation death of Frank White whose body was discovered at the Motel 6 in El Paso. Appellant testified that he killed White following an argument over who would be the passive and who the aggressive party in a homosexual liaison. The jury was charged on capital murder, murder and voluntary manslaughter. We affirm.

In Ground of Error No. One, Appellant contends that the indictment is duplicitous in that it alleges both murder and assault in one count, in violation of Tex. Code Crim.Pro.Ann. art. 21.24 (Vernon Pamphlet 1966-1985). Where one offense necessarily includes another offense, the descriptive averments relating to each may be contained in the same count without constituting duplicity. Nichols v. State, 653 S.W.2d 768 (Tex.Crim.App.1981). Here, the State’s theory of capital murder consisted of murder committed in the course of committing robbery. Tex.Penal Code Ann. sec. 19.03(a)(2) (Vernon 1974). Robbery consists of committing an assault in the course of committing theft. Tex.Penal Code Ann. secs. 29.02, 31.03 and 22.-01(a)(1) (Vernon 1974 and Supp.1985). The theft and assault elements of the alleged robbery were essential foundations for elevating the murder to a capital offense. The State’s detailed pleading was necessary to allege a capital offense and does not suffer from duplicity. Ground of Error No. One is overruled.

Ground of Error No. Two alleges that the capital juror selection process set out in Tex.Code Crim.Pro.Ann. art. 35.13 (Vernon Supp. Pamphlet 1966-1985) is unconstitutional, depriving him of due process and equal protection by not allowing him to reserve the exercise of his peremptory challenges until the entire venire had been examined. The difference in status between capital and non-capital defendants and the quantum difference in issues confronting prospective jurors in those two classes of cases provide a sufficient distinction to justify the different selection methods. In Koonce v. State, 654 S.W.2d 705, 708-709 (Tex.App.—Houston [14th Dist.] 1983, PDRR), this selection method was held to be consistent with due process and equal protection. Ground of Error No. Two is overruled.

Grounds of Error Nos. Three and Four deal with alleged errors in permitting the State a retroactive peremptory challenge to prospective juror R.Y. Adams or alternatively disqualifying her regardless of the State’s challenge. Adams had been accepted by both the State and defense. The juror oath set out in Tex.Code Crim. Pro.Ann. art. 35.22 (Vernon 1966) was administered. Adams refused, however, to take the supplemental oath for capital offense jurors set out in Tex.Penal Code Ann. sec. 12.31(b) (Vernon 1974). Appellant contends that this violated the rule set out in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), as well as Tex.Code Crim.Pro.Ann. arts. 35.16 and 35.19 (Vernon Pamphlet 1966-1985).

The treatment of Juror Adams was probably error in both regards as argued by Appellant. Nonetheless, the issue is rendered moot by the jury’s acquittal of Appellant on the capital charge and subsequent verdict and ninety-nine year sentence on the lesser offense of murder. Osteen v. State, 642 S.W.2d 169 (Tex.Crim.App.1982); Adams v. State, 624 S.W.2d 568 (Tex.Crim.App.1981) (following remand by the Supreme Court); Koonce, 654 S.W.2d at 710. Judge Clinton’s dissent in Adams is not applicable here since the issue was rendered moot not by the exercise of the governor’s power of commutation but by the trial process itself. Grounds of Error Nos. Three and Four are overruled.

In Ground of Error No. Five, Appellant contends that the court erred in refusing a requested jury instruction reciting the evidentiary rule set out in Tex.Penal Code Ann. sec. 19.06 (Vernon 1974). While it is presently permissible to give such an instruction, Valentine v. State, 587 S.W.2d 399 (Tex.Crim.App.1979), Appellant has presented no authority for the proposition that refusal to so instruct constitutes reversible error. Indeed, as the State points out in its brief, at one time such an instruction would have been improper, constituting a comment on the weight of the evidence. See: Wheeler v. State, 156 Tex.Cr.R. 140, 239 S.W.2d 105 (1951) and Hill v. State, 130 Tex.Cr.R. 585, 95 S.W.2d 106 (1936).

The most reasonable analysis is that presented by the State. Section 19.06 is essentially a rule of evidence which dictates the scope of testimony, documentary and physical evidence to be presented to the jury. Such evidence, having been presented in open court and argued to the jury without impediment, will, under the charge as given, naturally become an allowable area of jury deliberation. Ground of Error No. Five is overruled.

Ground of Error No. Six asserts error in failing to include within the charge paragraph applying the law of murder to the facts of the case an instruction that the State was required to prove that the murder was not committed under the immediate influence of sudden passion arising from an adequate cause. The court apparently instructed on voluntary manslaughter without request by the defense. Nor was there any objection to the murder application paragraph.

This issue has been addressed by the Court of Criminal Appeals in Cobarrubio v. State, 675 S.W.2d 749 (Tex.Crim.App.1983, rehearing denied September 26, 1974), relying upon an earlier decision in Braudrick v. State, 572 S.W.2d 709, 710 (Tex.Crim.App.1978). See also: Jenkins v. State, 688 S.W.2d 504 (Tex.Crim.App.1983, rehearing pending). Braudrick held that “sudden passion” is in effect a defensive issue which if accepted would reduce an offense from murder to the lesser offense of voluntary manslaughter. That construction has been revised by Bradley v. State, 688 S.W.2d 847 (Tex.Crim.App.1985). The Cobarrubio opinion holds that when sudden passion is raised by the evidence, a defendant is entitled not only to an instruction on voluntary manslaughter but also to a modification of the paragraph applying the law of murder to the facts. This latter paragraph must include an element that places a burden upon the State of disproving, beyond reasonable doubt, that the murder was committed under the influence of sudden passion arising from an adequate cause. The Court of Criminal Appeals has characterized the error as “a denial of due process of law in the most fundamental sense.” In Braudrick, the Court of Criminal Appeals stated that when voluntary manslaughter is raised by the evidence, the State must disprove sudden passion to sustain guilt of murder. A necessary implication of this conclusion is that in such a case absence of sudden passion assumes the character of an “implied element” of the offense of murder, although it does not when the only evidentiary issues are guilt or non-guilt of murder. Bradley, supra. This analysis is critical in light of Appellant’s failure to object to the murder charge in this ease. In Cobarrubio, trial objection was made, but in Jenkins, the issue was not even raised on appeal. The court found and acted upon this “fundamental” error on its own.

The Eleventh Court of Appeals has concluded that failure to object to the omission constitutes a waiver. Walters v. State, 677 S.W.2d 629 (Tex.App.—Eastland 1984, petition granted and remanded to the Court of Appeals, April 24, 1985). The Eastland court does not even mention Jenkins. On the other hand, the Second Court of Appeals, in Wynne v. State, 676 S.W.2d 650, 654 (Tex.App.—Fort Worth 1984), while dealing with an objected to charge, reemphasizes the elemental language of Braudrick placing the burden of disproof upon the State in its murder effort when voluntary manslaughter is raised by the evidence. The best suggestion to date is offered by Judge Clinton in footnote 13 in Bradley, eliminating voluntary manslaughter as a distinct offense and rendering it a mitigation issue at the punishment phase. Unless and until the legislature so acts, we must proceed in concert with existing law.

There was no objection to the charge in this case and we have concluded that this ground of error has been waived. See: Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1985). In Cobarrubio there were timely objections to the charge, and as noted by the court in Walters, the ruling in Cobarrubio was: “These objections should have been sustained.” Jenkins is an unpublished opinion which has not been made final by a ruling on a motion for rehearing which has been pending over two years. Since that case was decided, the Walters case has held that error was not preserved in the absence of objection to the charge at time of trial; also, the Court of Appeals for the Fourth District has cited both Cobarrubio and Jenkins while holding that error is waived where there is no objection to the charge. Cano v. State, 681 S.W.2d 291 (Tex.App.—San Antonio 1984). Said the court: “Where the defendant fails to object to the trial court’s charge or make any special request to the charge, any alleged error in the charge is waived. See: Manry v. State, 621 S.W.2d 619 (Tex.Cr.App.1981); Romo v. State, 568 S.W.2d 298, 303 (Tex.Cr.App.1978); TEX.CODE CRIM.PROC.ANN. ART. 36.14 (Vernon Supp.1984).” The cited Article 36.14 contains a provision that before the charge is read to the jury “the defendant or his counsel ... shall present his objection thereto in writing, distinctly specifying each ground of objection.” And, Article 36.19 of the Code of Criminal Procedure provides: “All objections to the charge and to the refusal of special charges shall be made at the time of trial.” We think it significant that the legislature placed that provision in a chapter entitled “Review of charge on appeal.” We hold that Appellant’s failure to object and give the trial court an opportunity to correct any alleged error amounts to waiver. Ground of Error No. Six is overruled.

Appellant’s seventh and final ground of error complains of the introduction of five gruesome photographs allegedly for inflammatory effect alone. The photographs, State’s Exhibits Five through Nine, appear to be relevant to material issues in the case. They depict the position of the body, its state of undress, the ligature device, and the location of the injuries. All were taken at the scene of the murder. Other than the presence of a small amount of dried blood, there is nothing of a particularly gruesome nature included within the photographs. No error is shown. Terry v. State, 491 S.W.2d 161 (Tex.Crim.App.1973). Martin v. State, 475 S.W.2d 265 (Tex.Crim.App.1972). Ground of Error No. Seven is overruled.

The judgment is affirmed.