author: UTTER, Justice.

text:
    Kenneth BLAIR, Appellant, v. INA OF TEXAS, Appellee.
    No. 13-84-020-CV
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.
    Rehearing Denied Jan. 31, 1985.
    James B. Ragan, Corpus Christi, for appellant.
    Edward 0. Garcia, Stone & Thompson, Corpus Christi, for appellee.
    Before UTTER, YOUNG and GONZALEZ, JJ.
   OPINION

UTTER, Justice.

Appellant brought suit to recover worker’s compensation benefits for disability resulting from a heart attack. Following a jury trial, the trial court entered judgment for appellee based upon the jury’s failure to find that appellant’s heart attack occurred in the course of employment. We reverse and remand.

In his two points of error, appellant challenges the legal and factual insufficiency of the evidence to support the following jury finding:

ISSUE NO. 2
Do you find from a preponderance of the evidence that Kenneth Blair’s heart attack was in the course of his employment by E & P Trucking Company?
A “heart attack” is in the course of employment if it is produced or precipitated by an employee’s work or conditions of his employment. Otherwise, a heart attack is not in the course of employment, even if it occurs on the job.
Answer “We Do” or “We Do Not.”
ANSWER: We Do Not.

In considering a “no evidence” or “insufficient evidence” point of error, we will follow the well-established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App. — Corpus Christi 1981, writ ref’d n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 361 (1960).

On December 22, 1981, appellant had been employed as a crane truck operator for E & P Trucking Company for approximately four months. That afternoon, appellant washed his crane truck and painted some portions of the truck. While cleaning and painting the truck, appellant noticed that the crane’s winch cable had become frayed and decided to replace the old cable. The old cable was made of ⅝ inch steel wire cable and was approximately 200 feet long.

In attempting to change out the old cable, appellant first unspooled the frayed wire cable from the winch drum on the crane- truck and then straightened out the cable on the ground. Appellant then rolled up the wire cable into a coil “like you do a garden hose” and bound the wire cable together. The rolled-up cable weighed “about a hundred to two hundred pounds.” To dispose of the rolled-up cable, appellant “rolled” the cable “about two or three hundred feet” to a scrap pile at the truck yard. During the process of rolling the cable to the scrap pile, the rolled-up cable would occasionally fall and would have to be picked up by appellant before it could be rolled further.

After the rolled-up cable was deposited at the scrap pile, appellant began walking back to his crane truck. About halfway back to his crane truck, appellant began “feeling bad”; he felt “tired,” “felt weak and started sweating.” Appellant was able to return to and to climb into his truck. He was later discovered by fellow employees, who found him sitting in his truck, slumped over the steering wheel and “soaking wet.”

The deposition testimony of Dr. D.L. Woodson, Jr., was the only testimony of a medical expert produced at trial. Dr. Woodson testified that, prior to the heart attack, appellant apparently had a severe atherosclerotic blockage of three of his coronary arteries — “the right one was almost a 100 percent plugged up on the catheteri-zation. The left one was 99 percent plugged up.... And he had 90 percent occlusion of his third one” — and that appellant’s heart attack was caused by a complete occlusion of the right coronary artery. Dr. Woodson further testified that, when the arteries were almost totally blocked, “the heart attack can occur suddenly, without doing anything,” and that appellant, in his “precarious situation” before the heart attack, “was on the verge of having a heart attack at anytime, it didn’t matter what he was doing.” Dr. Woodson also gave his opinion that, regarding appellant’s activity in the disposition of the old cable, he would not consider rolling “like a ear tire” the coil of old cable, which “weighed about one hundred pounds,” to the scrap pile to be “unusually strenuous activity, particularly in December when it’s not that hot.” However, Dr. Woodson, in answer to questions by appellant’s attorney, testified:

Q. No. I’m asking you specifically if you think that activity caused him to have a heart attack when it did, within reasonable medical probability, as opposed to possibility.
A. I would have to say that that amount of activity could cause you to have your heart attack start right after it, if you had that bad of a lesion.

Dr. Woodson further testified:

I would have to say, if we are saying that the heart attack wouldn’t have occurred at that exact moment and maybe it would have occurred an hour later— that it probably wouldn’t have occurred at that moment, if he hadn’t been doing something a little bit hard a little before that. Circumstantially, you would have to say that the heart attack occurred at that moment because he had just been doing something, in my opinion, wouldn’t be real strenuous, but you had that bad of underlying heart trouble, that amount of activity to make it occur at that moment.
s£ ⅝ sfc ⅝ }Sc ⅝
A. I would have to say in reasonable medical probability, that is what set it off. If he would have been at home just sitting down watching TV, it probably wouldn’t have occurred at that time.

There was absolutely no testimony from Dr. Woodson or any other witnesses that appellant’s heart attack did not occur in the course of his employment. However, in his deposition, Dr. Woodson did testify that, because of the badly deteriorated condition of appellant’s cardiovascular system, appellant’s heart attack could have occurred at any time, including while appellant might be walking, watching television, going to the refrigerator or sleeping. However, that type of testimony does not negate Dr. Woodson’s positive testimony that appellant’s physical activity on the job actually produced or precipitated appellant’s heart attack while appellant was in the course of his employment.

A heart attack caused by strain or overexertion may constitute an accidental injury to the physical structure of the body within the meaning of the Worker’s Compensation Act. Henderson v. Travelers Insurance Co., 544 S.W.2d 649 (Tex.1976); Baird v. Texas Employers’ Insurance Co., 495 S.W.2d 207 (Tex.1973). In heart attack cases, such as the instant case, there are two issues which must be resolved: First, it must be determined whether there is evidence of an unde-signed, untoward event involving overexertion or strain which is traceable to a definite time, place and cause. Olson v. Hartford Accident & Indemnity Co., 477 S.W.2d 859 (Tex.1972); Cavazos v. Fidelity & Casualty Co. of New York, 590 S.W.2d 173 (Tex.Civ.App. — Corpus Christi 1979, no writ). If so, it then must be determined whether there is any evidence of whether such strain or overexertion was a producing cause of claimant’s stroke. Henderson v. Traveler’s Insurance Co., 544 S.W.2d 649 (Tex.1976); Cavazos v. Fidelity & Casualty Co. of New York, 590 S.W.2d at p. 175.

The question of causation in heart attack cases is usually close, and the evidence is most often largely circumstantial or based on answers of medical witnesses to hypothetical questions. Baird v. Texas Employer’s Insurance Co., 495 S.W.2d 207 (Tex.1973); Mueller v. Charter Oak Fire Insurance Co., 533 S.W.2d 123 (Tex.Civ.App. — Tyler 1976, writ ref’d. n.r.e.); Cavazos v. Fidelity & Casualty Co. of New York, 590 S.W.2d at p. 175. A pre-existing condition, such as diseased arteries, will not preclude compensation. Mueller v. Charter Oak Fire Insurance Co., 533 S.W.2d at p. 125; O’Dell v. Home Indemnity Co., 449 S.W.2d 485 (Tex.Civ.App.— Amarillo 1969, writ ref'd. n.r.e.). Since preexisting heart disease is usually present in heart attack cases, it is important that the job-related strain be the sole or contributing cause of the injury. Mueller v. Charter Oak Fire Insurance Co., 533 S.W.2d at p. 125, citing Symposium of Workmen’s Compensation: A Pandect of the Texas Law, 6 St. Mary’s L.J. 608.

In the instant case, we hold that Dr. Woodson’s testimony that appellant, in his severe atherosclerotic condition, could have sustained the heart attack at any time, regardless of what he was doing, is sufficient to overcome appellant’s no evidence point. Appellant’s first point of error is overruled.

However, in reviewing all of the evidence, the evidence overwhelmingly established that appellant’s activity in disposing of the old cable involved overexertion or strain, which occurred during the course of appellant’s employment and produced or precipitated appellant’s heart attack. We, therefore, hold that the jury finding that appellant’s heart attack did not occur while in the course of his employment is against the great weight and preponderance of the evidence so as to be manifestly wrong. See Kiel v. Texas Employers’ Insurance Association, 679 S.W.2d 656, No. 01-83-00855-CV (Tex.App. — Houston [1st Dist.], no writ); Traders & General Insurance Company v. McDaniel, 305 S.W.2d 659 (Tex.Civ.App. — Beaumont 1957, no writ). Appellant’s second point of error is sustained.

Due to the conditional submission of the issues, we must REVERSE the judgment and REMAND the cause to the trial court.

GONZALEZ, J., not participating.


source: Caselaw Access Project

author: CORNELIUS, Chief Justice.

license: Public Domain

text:
    CORPORATE FUNDING, INC., Appellant, v. The CITY OF HOUSTON, Appellee.
    No. 9274.
    Court of Appeals of Texas, Texarkana.
    Dec. 18, 1984.
    Rehearing Denied Jan. 22, 1985.

      Mary Ann George, Mary Ann George & Associates, Houston, for appellant.
    Joan C. Ward, Daniel Doherty, Asst. City Attys., Houston, for appellee.
   CORNELIUS, Chief Justice.

Corporate Funding, Inc. brought this writ of error to review the trial court’s granting of a summary judgment in favor of the city of Houston.

The city filed suit for itself and other interested taxing entities seeking to recover delinquent taxes, interest and penalties due against personal property leased by Corporate Funding. The trial court granted the city’s motion for summary judgment, finding proper service and notice, the absence of any material fact, and awarding $23,741.50 in delinquent taxes, penalties and interest, and $3,561.21 as attorney’s fees. Corporate Funding raises four points of error contending generally that fact issues were raised and there was inadequate proof of notice, property description, and reasonableness of attorney’s fees.

We overrule Corporate Funding’s point on the notice issue, but sustain its points concerning the reasonableness of attorney’s fees and the sufficiency of the property descriptions.

The trial judge found that the attorney’s fees awarded were reasonable, but there was no summary judgment evidence concerning their reasonableness. The city argues that since the statute authorizes attorney’s fees not to exceed fifteen percent in tax collection cases, the affidavit and exhibits are sufficient evidence of attorney’s fees. We disagree. The statute provides that a taxing unit may recover reasonable attorney’s fees approved by the trial court, not to exceed fifteen percent of the total taxes, penalty and interest due. Since the attorney’s fees must be in a reasonable amount and not per se fifteen percent, reasonableness is a fact which must be proved, and it cannot be determined in a summary judgment proceeding unless it is agreed to or there is uncontradicted summary judgment evidence of that fact. Tex. R.Civ.P. 166-A(c); Coward v. Gateway Nat’l Bank of Beaumont, 525 S.W.2d 857 (Tex.1975); Brown v. Clark, 557 S.W.2d 558 (Tex.Civ.App.-Texarkana 1977, no writ); Hurt v. Bays, 537 S.W.2d 139 (Tex.Civ.App.-Austin 1976, writ ref’d n.r.e.).

We also find that the property descriptions in the delinquent tax statements which were attached as summary judgment evidence are insufficient. While Tex.Tax Code Ann. § 33.43(c) (Vernon 1982) allows personal property to be described generally, the particular method of description used here, in itself, raises an ambiguity and a fact issue as to what property has been taxed. The descriptions are “leased eqpt. various locations, one being 198 Post Oak,” and similar ones. Even the general type of equipment is not given, and the notation that the situs of the property is at various unspecified locations (even though one of the locations is specified), adds to the uncertainty. See Houston Crane Rentals, Inc. v. City of Houston, 454 S.W.2d 216 (Tex.Civ.App.-Houston [1st Dist.] 1970, writ ref d n.r.e.) Cases such as City of Corpus Christi v. Sudduth, 475 S.W.2d 720 (Tex.1972) and Stone v. City of Dallas, 244 S.W.2d 937 (Tex.Civ.App-Waco 1951, writ dism’d), are inapposite because the descriptions used there were made certain by limiting them to a specific location, or identifying the nature of the property, or by additional identifying summary judgment evidence furnished by affidavit or otherwise. There is no such summary judgment evidence here.

For the reasons stated the summary judgment is reversed and the cause is remanded to the district court for trial.

      . Tex.Tax Code Ann. § 33.48 (Vernon 1982).


author: HUTCHINSON, Justice.

text:
    James R. AVERYT, Individually and as Trustee for R.M. Hopkins, Jr., Appellants, v. GRANDE, INC., Appellee.
    No. 9185.
    Court of Appeals of Texas, Texarkana.
    Dec. 18, 1984.
    Rehearing Denied Feb. 6, 1985.

      Stanley J. Krist, Christie Condara, Krist, Kinney, Puckett & Riedmueller, Houston, for appellants.
    William J. Ehlert, Spinn, Ehlert, Spinn, Weisler & Weisler, Brenham, for appellee.
   HUTCHINSON, Justice.

James R. Averyt, Individually and as Trustee for R.M. Hopkins, Jr., brings this appeal claiming the trial court erred in its construction of a royalty reservation in a deed and in its failure to file findings of fact and conclusions of law.

On September 30, 1977, Grande, Inc. conveyed certain property by general warranty deed to the Fogelmans. Averyt and Hopkins subsequently acquired the Fogel-mans’ interest by assumption deed. Aver-yt, in both capacities, brought this suit seeking a declaration of the portion of the mineral interests that were granted to the Fogelmans in the Grande, Inc. to Fogelman deed. The deed conveys two tracts of land, the first being 86.82 acres and the second 0.03 acres. Averyt, on appeal, is interested only in the first tract.

The pertinent portions of the Grande-Fo-gelman deed are as follows:

[T]hat Grande, Inc. ... have GRANTED, SOLD and CONVEYED, ... unto the said Gordon V. Fogelman and wife, Clarice E. Fogelman, ... the following described real estate:
FIRST TRACT:
All that certain tract or parcel of land, situated in Fayette County, Texas,
[Containing 86.82 acres of land. SECOND TRACT:
An undivided interest in and to all that certain tract or parcel of land, situated in Fayette County, Texas, ...:
[Containing 0.03 acre of land.
LESS, HOWEVER, AND SUBJECT TO an undivided ¼ interest in the oil, gas, sulphur, and all other minerals, described in that deed from Rubie Keil-ers and Annie Keilers, to Texas Osage Co-operative Royalty Pool, et al, dated May 2, 1930, and recorded in Volume 152, Pages 75-76, Deed Records of Fa-yette County, Texas.
LESS, ALSO, AND SUBJECT TO certain rights granted to Fayette Electric Cooperative, Inc., by an instrument in writing from David Rivers, et ux, dated June 7, 1945, and recorded in Volume 217, Page 271, Deed Records of Fayette County.
There is hereby excepted from this conveyance and reserved to Grantor, its successors and assigns, an undivided Vith of the royalty covering all of the oil, gas and other minerals, including but not limited to uranium, coal, lignite, iron, gold, silver, and all other minerals, whether or not now known to be valuable and whether by drilling, strip mining, or any other method, in, to and under or that may be produced from the lands above described to be paid or delivered unto the Grantor, its successors and assigns, free of cost to it from royalty oil, gas, and other minerals, as above defined, forever. Said interest hereby reserved is a non-participating royalty interest and shall not participate in the bonuses paid for any oil, gas and other minerals lease, as above defined, covering said lands, nor shall it participate in the money rentals which may be paid to extend the time within which a well may be begun under the terms of any lease covering said lands. It shall not be necessary for the Grantor, its successors or assigns, to join in the execution of any lease covering said royalty interest herein reserved and the said Grantees, their heirs or assigns, shall have the right to lease said lands for oil, gas and other minerals, as above defined, provided, however, that all such leases shall provide for a royalty of not less than ⅛⅛.
TO HAVE AND TO HOLD the above described premises, together with all and singular, the rights and appurtenances thereto in any wise belonging unto the said Gordon V. Fogelman and wife, Clarice E. Fogelman, their heirs and assigns, forever. And Grande, Inc., does hereby bind itself and its successors, to warrant and forever defend, all and singular, the said premises unto the said Gordon V. Fogelman and wife, Clarice E. Fogelman, their heirs and assigns, against every person whomsoever lawfully claiming, or to claim the same or any part thereof.

We must determine whether Grande, Inc., reserved one-fourth of the royalty of the entire 86.82 and 0.03 acres or one-fourth of the royalty of Grande’s one-half mineral interest at the time of the conveyance. Both parties agree that the deed is unambiguous, and the court must construe the language therein to ascertain the true intent of the parties, Middleton v. Broussard, 504 S.W.2d 839 (Tex.1974), and that parol evidence as to the parties’ construction of said language is immaterial and not admissible. First Nat’l Bank in Dallas v. Kinabrew, 589 S.W.2d 137 (Tex.Civ.App. — Tyler 1979, writ ref’d n.r.e.); Ross & Sensibaugh v. McLelland, 262 S.W.2d 205 (Tex.Civ.App. — Fort Worth 1953, writ ref’d n.r.e.). The unambiguous deed must be given the legal effect resulting from a construction of the language contained within the four corners of the instrument. All parts of the instrument must be given effect, if possible to do so, without violating any legal principals. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953).

As used in conveyances, “subject to” is a term of qualification and not of contract. Kokernot v. Caldwell, 231 S.W.2d 528 (Tex.Civ.App. — Dallas 1950, writ ref’d). “Subject to” clauses in deeds protect the warranty and limit the grant. These terms in their ordinary sense mean “subservient to” or “limited by.” Cockrell v. Texas Gulf Sulphur Co., 157 Tex. 10, 299 S.W.2d 672 (1956); 5 Lange, Texas Civil Practice in District and County Courts § 721 (1961). See also, Bass v. Harper, 441 S.W.2d 825 (Tex.1969). The covenant of general warranty extends only to what is granted or what purports to be granted by the deed. Benge v. Scharbauer, supra. In this case the “less, however, and subject to” clause concerning the prior one-half mineral interest conveyance does not limit the description of the land area described in the two tracts of the Grande, Inc. to Fogel-man deed. It is not part of the land description. This clause limits the granting or conveyance of the mineral interest from Grande, Inc. to the Fogelmans, thereby protecting the general warranty in the deed and avoiding an estoppel situation as in Duhig v. Peavy-Moore Lumber Co., 135 Tex. 503, 144 S.W.2d 878 (1940).

The royalty interest reserved by Grande, Inc. is that “undivided ¼⅛ of the royalty ... that may be produced from the lands above described ....’’ (Emphasis added). The terms “covering said lands,” appearing twice, and “said lands,” appearing once, in the same royalty reservation are terms subsequent to and referring to the “lands above described,” being the first and second tracts. We find that the language used in this deed reservation is controlled by Middleton v. Broussard, supra; and King v. First Nat’l Bank of Wichita Falls, 144 Tex. 583, 192 S.W.2d 260 (1946), and not by Hooks v. Neill, 21 S.W.2d 532 (Tex.Civ.App. — Galveston 1929, writ ref d). The Hooks case dealt with a reservation term of “lands herein described and conveyed,” thereby limiting the reservation to the fraction of the mineral interest conveyed by the grantor. Here, the reservation terms of “lands herein described,” “covering said lands,” and “said lands” refer to the land itself rather than the granted interest or interest conveyed therein. Middleton v. Broussard, supra; King v. First Nat’l Bank of Wichita Falls, supra; 1 Kuntz, Law of Oil & Gas § 14.5 (1962). The royalty fraction reserved is construed to refer to the entire mineral interest as was determined by the trial court in this cause, and therefore Grande’s reserved royalty is a nonparticipating one-fourth of the royalty of the entire acreage.

We find that Averyt has waived his right to complain on appeal of the trial court’s failure to file the requested findings of fact and conclusions of law. Tex.R. Civ.P. 296 requires the trial court to state findings of fact and conclusions of law when a request is filed within ten days from the rendition of the final judgment. The trial court then has thirty days after the judgment is signed or a motion for new trial is overruled to prepare his findings and conclusions. If he fails to prepare the findings, the party demanding them must complain of the failure in writing within five days after such period. Tex.R.Civ.P. 297. When the party fails to bring it to the judge’s attention he cannot complain on appeal of the failure to file findings and conclusions. Peterson Sales Co. v. Mica, Inc., 623 S.W.2d 679 (Tex.Civ.App. — Houston [1st Dist.] 1981, no writ). A party waives the right to complain on appeal when it fails to give timely notice of the trial court’s omission to enter requested findings of fact and conclusions of law. Martinez v. Martinez, 608 S.W.2d 719 (Tex.Civ.App. — San Antonio 1980, no writ); Lynch v. Exxon Pipeline Co., 545 S.W.2d 55 (Tex.Civ.App. — Waco 1976, no writ); Associates Dev. Corp. v. Air Control Prod., Inc., 392 S.W.2d 542 (Tex.Civ.App. — Austin 1965, writ ref’d n.r.e.).

The judgment of the trial court is affirmed.

      . Although Rules 296 and 297 were amended, effective April 1, 1984, these requirements are substantially still the same,


author: PER CURIAM.

text:
    SAN BENITO BANK & TRUST COMPANY, Appellant, v. RIO GRANDE MUSIC COMPANY, B & P Enterprises, Lionel Betancourt and John Phillips, Appellees.
    No. 13-83-188-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 28, 1984.
    Rehearing Denied Jan. 31, 1985.

      William C. Roundtree, Harlingen, for appellant.
    Ferriel C. Hamby, Maurice D. Healey, Harlingen, R. Gaines Griffin, Weslaco, for appellees.
   OPINION

PER CURIAM.

Appellant Bank brought this suit on a promissory note. Appellees contended that collection on the note was barred because appellant knew that the disputed funds were to be used in an illegal transaction, and yet participated in the furtherance of that transaction. Appellees may be grouped into two sets of parties: B & P Enterprises, Lionel Betancourt and John Phillips (hereafter referred to collectively as B & P) and Frank Betancourt, Leigh Magee, Betty Wilson and Rio Grande Music Company (hereafter referred to collectively as RG Music).

RG Music was founded and operated for many years by Paco Betancourt, who became a highly-regarded customer of appellant Bank; after his death in 1971, appel-lees Lionel Betancourt and John Phillips operated RG Music. The other appellees were children of Paco Betancourt and had inherited their partnership interest in RG Music.

In late 1975, B & P Enterprises was formed to facilitate the smuggling of electronic equipment into Mexico (for a more complete factual rendition, see International Aircraft Sales v. Betancourt, 582 S.W.2d 632 [Tex.Civ.App. — Corpus Christi 1979, writ ref’d n.r.e.]). Because the company needed cash immediately, B & P prevailed upon Omar Rodriguez, an executive vice-president of appellant Bank and a long-time friend of Paco Betancourt, to treat incoming checks drawn against Mexican banks in payment for the smuggled electronic goods as “cash collections.” By March of 1976, some of the Mexican checks had been dishonored; B & P was told that appellant would not carry the overdraft, and B & P was required to sign a promissory note. The note was repeatedly extended but, though some of the balance was satisfied, appellant was forced to bring this suit to collect the remainder.

In answers to special issues, the jury found generally (1) that appellant was aware that the B & P transactions were entirely separate from the operations of RG Music, and (2) that appellant knowingly aided B & P in their violations against the laws of Mexico by treating the Mexican checks as “cash collections.” The trial court accordingly ordered that appellants take nothing by their suit. The trial court also ruled as a matter of law that appellee RG Music take nothing by its counterclaim which charged appellant with breach of its fiduciary duty as executor of the estate of Paco Betancourt.

“Promissory notes given in connection with a contract which is illegal are ordinarily not enforceable as between the parties to such instruments.” Similarly, if a contract or sale is made with a view of violating the laws of another country, though not otherwise obnoxious to the law either of the forum or of the place where the contract is made, it will not be enforced. International Aircraft Sales v. Betancourt, 582 S.W.2d 632 (Tex.Civ.App. —Corpus Christi 1979, writ ref’d n.r.e.).

However, the mere mental operations of a lender cannot operate to incite a borrower to commit an unlawful act, and courts therefore recognize that even actual knowledge on the part of the lender that the borrower intends to put the borrowed money to a possible unlawful use will not of itself invalidate a loan contract. Perkins v. Nevill, 58 S.W.2d 50 (Tex.Comm.App.—1933 opinion adopted). Even if the lender has knowledge of the borrower’s illegal designs, recovery on the loan will be permitted unless the lender performs another act beyond the bare sale in aid or furtherance of the unlawful object. McDonough v. Zamora, 338 S.W.2d 507 (Tex.Civ.App.—San Antonio 1960, writ ref’d n.r.e.); Kottwitz v. Alexander’s Executors, 34 Tex. 689 (1869).

In the case before us, the jury did find that, by handling the Mexican checks as “cash collections,” the Bank did “knowingly aid” the illegal transactions, but we hold that this finding does not establish the “furtherance of the unlawful object” necessary to absolve B & P from liability on the note. Our perception of “furtherance of the unlawful object” is clearly set out in the International Aircraft case, in which B & P sued their smuggling partners on a note issued for the goods received. The parties stipulated that it was illegal to ship the merchandise into Mexico. This Court refused to allow B & P to recover, noting that they:

“removed the components from their boxes and rewrapped them so as to conceal their true identity. Moreover, they separated the components into lots of 1,200 to 1,400 pounds each so that they might be flown over the border illegally. And finally, Betancourt and Phillips filled out their invoices and other documentation so as to facilitate the smuggling of the items into Mexico. In addition to this, the evidence is conclusive that Betancourt and Phillips knew that the shipment of these goods into Mexico was illegal. We think the evidence is conclusive that the original agreement of sale between Betancourt and Phillips and Kyral and Whitley was illegal and not enforceable in a court of law.”

We sustain appellant’s third and fourth points of error.

We also sustain appellant’s first point of error, in which it contends that appellees failed to establish their “illegality” defense to the note because they failed to prove the laws of Mexico. “Foreign law is regarded as a fact issue in the State of Texas. It must, therefore, be strictly pled and proved by the party relying on such law. Since our Texas courts refuse to take judicial notice of foreign laws, the party relying upon such a foreign law must offer proof and plead the laws themselves.” Franklin v. Smalldridge, 616 S.W.2d 655 (Tex.Civ.App.—Corpus Christi 1981, no writ).

It is not illegal to sell electronic components in the United States; thus, illegality may be established in this case only by showing that the laws of Mexico forbade the importation and sale of electronic components. Since the proof did not show that the laws of Mexico forbade the importation and sale of electronic components, the proof also failed to show that any party committed an illegal act. Since no illegal act was, in fact, proved, there is no reason to prevent appellant’s recovery on the promissory note.

Appellees argue that appellants injected the issue of illegality throughout the case and that “counsel went to great lengths to parade the opinion of this Court in International Aircraft Sales v. Betancourt, supra, before the jury, so as to emphasize the determination of illegality to the trial jury.” Appellees cite a number of cases holding that a party introducing evidence may not later complain of its admission or use as competent evidence; however, this begs the question of whether appellees sustained their burden of coming forward with formal proof that the laws of Mexico barred importation of electronic components. We hold that appellees failed to prove the laws of Mexico as required by the statute in effect at the time of trial, TEX.REY.CIV.STAT.ANN. art. 3718 (Vernon 1926). Garza v. Greyhound Lines, Inc., 418 S.W.2d 595 (Tex.Civ.App. — San Antonio 1967, no writ).

Our ruling in this case takes into consideration the fact that there is often involved, in reaching a decision as to granting or withholding relief, the question whether the policy against assisting a wrongdoer outweighs the policy against permitting unjust enrichment of one party at the expense of the other. The solution of the question depends upon the peculiar facts and the equities of the case, and the answer usually given is that which it is thought will better serve public policy. Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146 (1947). Further, public policy considerations aside, the courts are not always reluctant to grant relief to culpable complainants. For instance, courts may require an accounting between partners of profits or assets acquired from illegal transactions. See cases cited in Lewis v. Davis, 199 S.W.2d at 150; Kottwitz, 34 Tex. at 697-8. A court may enforce a contract against a defense of illegality where the failure to do so would, in effect, create a right or title in the other party dependent entirely on the contract, and thereby enable that party to reap a benefit thereunder. Loggins v. Stewart, 218 S.W.2d 1011 (Tex.Civ.App.— El Paso 1949, writ ref d). Even the fruit of a gambling venture is property about which the parties may be allowed to litigate. Castilleja v. Camero, 402 S.W.2d 265 (Tex.Civ.App. — Corpus Christi 1966, affd 414 S.W.2d 424 (Tex.1967)). We hold that appellant may recover on its promissory note.

In its fifth point of error, appellant raises evidentiary challenges to the jury findings which established that Lionel Be-tancourt had no authority “to execute the note sued upon on behalf of Rio Grande Music Company.” The jury found that, at the time the note of March 12, 1976 was signed, Rodriguez did not believe that Be-tancourt and Phillips were signing as the act of RG Music, and that neither Betanc-ourt nor Phillips was acting within the scope of his apparent authority from RG Music in signing that note. We refuse to hold that, because Phillips and Lionel Be-tancourt operated RG Music and had had extensive dealings with appellant over the years, that every business transaction they enter into must automatically include RG Music as a guarantor of their liabilities. The point of the jury findings is that B & P was a separate entity from RG Music, and that appellant’s agent knew this. Our review of the record certainly does not establish the opposite as a matter of law. We hold that there is sufficient evidence to support the jury verdict.

Also under this point of error, appellant contends that RG Music ratified the transaction with the Bank because trial evidence “unequivocally established that Rio Grande Music Company received certain money benefits ... as a result of the Kyral, Whitley [B & P’s smuggling partners], Betancourt, and Phillips activities, and to this date, Rio Grande Music Company has retained those benefits.” Even if true, the fact that RG Music eventually retained proceeds which were generated by B & P hardly bears upon whether RG Music ratified the note issued, and certainly does not make RG Music liable to appellant as a matter of law. Appellant’s fifth point of error is overruled.

In its sixth point of error, appellant contends that appellees executed the March 12, 1976 note as an Accord and Satisfaction for the benefit of RG Music with the Bank. We note first that Accord and Satisfaction is an affirmative defense, yet here it is appellant, plaintiff at trial, who seeks to establish the “defense” on appellee’s behalf in order that appellant may recover. In addition, the defense of Accord and Satisfaction rests upon a new contract “in which the parties agree to the discharge of an existing obligation in a manner otherwise than originally agreed. The tender of the alternate satisfaction is upon the condition that the acceptance will constitute a discharge of the underlying obligation.” Harris v. Rowe, 593 S.W.2d 303 (Tex.1979). The minds of the parties must meet and the communication must be unmistakable. Moreover, an Accord and Satisfaction must be supported by a consideration. Pickering v. First Greenville National Bank, 495 S.W.2d 16 (Tex.Civ.App. —Dallas 1973, writ ref’d n.r.e.). There is no “accord” or “satisfaction” under the facts of the ease before us.

Also under its sixth point of error, appellant contends that RG Music “is attempting to avoid the Bank's subrogation claim based on this same Accord and Satisfaction agreement.” As we have found that no accord or satisfaction existed, we will overrule appellant’s contention assuming its existence. Appellant’s sixth point of error is overruled.

In light of our disposition of the previously discussed issues, we need not consider appellant’s second, seventh, eighth and ninth points of error because they no longer present controlling issues. TEX.R. CIV.P. 451.

Appellees RG Music bring one cross-point of error in which they contend that the trial court erred by refusing to allow evidence and special issues on the issue of whether appellant breached its fiduciary duty as Successor Independent Executor of the estate of Paco Betancourt. Appellees contend that by “the very taking of the note in question, [appellant] has violated its fiduciary duty to Rio Grande Music Company, Frank Betancourt, Lee Magee and Betty Wilson.”

Appellant cites no cases which lead us to believe that the fact situation before us constitutes a breach of fiduciary duty. We hold that the trial court did not err in finding as a matter of law that this was so. Appellant’s cross-point is overruled.

Appellant’s first, third, and fourth points of error are sustained. All other assignments of error are overruled. The judgment of the trial court is affirmed insofar as it relates to appellees Rio Grande Music Company, Frank Betancourt, Betty Wilson and Lee Magee. The judgment of the trial court as it relates to appellees B & P Enterprises, John Phillips, and Lionel Be-tancourt is reversed. Pursuant to TEX.R. CIV.P. 434 and TEX.REV.CIV.STAT.ANN. art. 5069-1.05, we render judgment that appellant recover on its promissory note together with interest at the rate specified in the note calculated from the date of the trial court’s judgment. Costs are to be apportioned equally between appellant and appellees B & P Enterprises, John Phillips and Lionel Betancourt. TEX.R.CIV.P. 448.

      . Rule 203 of the new Rules of Evidence greatly relaxes the procedure for proving the law of a foreign country, allowing the court to "consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavit, testimony, briefs, and treatises." However, this Rule did not take effect until several months after trial, and we decline to assign it retroactive application. See Aquamarine Associates v. Burton Shipyard, Inc., 659 S.W.2d 820 (Tex.1983).


text:
    Clayton ROBERTSON, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-007-CR.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 28, 1984.
    Rehearing Denied Jan. 31, 1985.

      Michael Sieber, Victoria, for appellant.
    George J. Filley, III, Asst. Dist. Atty., Victoria, for appellee.
    Before UTTER and KENNEDY, JJ.
   OPINION

UTTER, Justice.

This is an appeal from a jury conviction for the offense of Aggravated Sexual Assault on a Child for which the jury assessed punishment at ninety-nine years in the Texas Department of Corrections. We affirm the judgment of the trial court.

Appellant was arrested on September 2, 1983, and was originally indicted for the offense of Sexual Assault. Appellant was re-indicted by indictment filed October 14, 1983, for the greater offense of Aggravated Sexual Assault on a Child. The new indictment alleged that the offense occurred “on or about the 1st day of September A.D. 1983.” (Emphasis added.)

Aggravated Sexual Assault on a Child is a new criminal offense, which became effective on September 1, 1983. Act 1983, 68th Leg., p. 5312, Ch. 977, § 3, eff. Sept. 1, 1983. See TEX.PENAL CODE ANN. art. 22.021(a)(5) (Vernon Supp.1984). The elements of the offense of Aggravated Sexual Assault on a Child are the same elements of the old offense of Aggravated Rape of a Child, which was repealed effective September 1, 1983. Act. 1983, 68th Leg., p. 5321, Ch. 977, § 12, eff. Sept. 1, 1983. See TEX.PENAL CODE ANN. § 21.03(a)(5) (Vernon Supp.1983). The note under TEX.PENAL CODE ANN. § 22.021 (Vernon Supp.1984) recites:

Applicability of 1983 Act to offense committed on or after effective date in law governing offense committed before effective date, see note under § 22.01.

The note under TEX.PENAL CODE ANN. § 22.01 (Vernon Supp.1984), in pertinent part, states:

For purposes of this section, an offense is committed before the effective date of this act if any element of the offense occurs before the effective date. (Emphasis added.)

In his first and second grounds of error, appellant asserts that the indictment and the court’s charge were erroneous because both of them alleged that the appellant committed the offense “on or about the 1st day of September, 1983.” Appellant contends that the phrase, “on or about the 1st day of September, 1983,” in the indictment and in the court’s charge is an “expansive” phrase, which could have misled the jury to convict appellant under the new statute for an offense committed prior to the effective date of the new statute. Appellant claims that the indictment and the court’s charge should have alleged that the offense had occurred “on the 1st day of September, 1983.” In the alternative, appellant claims that the indictment and the court’s charge should have alleged that the offense was committed “on or after the 1st day of September, 1983.”

We note that appellant filed no motion to quash the indictment and made no objection to the court’s charge. Since the alleged insufficiency of the indictment is raised for the first time on appeal, only appellant’s contention that the indictment failed to allege constituent elements of an offense is before our Court for review. Reynolds v. State, 547 S.W.2d 590 (Tex.Crim.App.1976); Livingston v. State, 542 S.W.2d 655 (Tex.Crim.App.1976); Fisher v. State, 538 S.W.2d 623 (Tex.Crim.App.1976); Cox v. State, 523 S.W.2d 695 (Tex.Crim.App.1975); Terry v. State, 517 S.W.2d 554 (Tex.Crim.App.1975, citing American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex.Crim.App.1974) and Peterson v. State, 508 S.W.2d 844 (Tex.Crim.App.1974); See TEX.CODE CRIM.PROC.ANN. art. 27.08 (Vernon Supp.1984).

Omitting the formal portions of the indictment, the indictment alleged that:

Clayton Robertson ... on or about the 1st day of September A.D. 1983, ... did then and there intentionally and knowingly cause the penetration of the vagina of a child by the insertion of his penis, to-wit: the said child being [complainant] a person younger than fourteen (14) years of age and not the spouse of the said Clayton Robertson. (Emphasis added.)

The indictment clearly alleges culpable conduct, which constituted an offense for which appellant could be convicted. If committed before September 1, 1983, the alleged conduct comprised the elements of Aggravated Rape of a Child, under TEX. PENAL CODE ANN. § 21.03(a)(5) (Vernon Supp.1983) (a first degree felony); whereas, if committed on or after September 1, 1983, the alleged conduct comprised the elements of the offense Aggravated Sexual Assault, under TEX.PENAL CODE ANN. § 22.021(a)(5) (Vernon Supp.1984) (a first degree felony). We therefore hold that the indictment sufficiently alleged the elements of an offense, for which appellant could be convicted. Also, the indictment sufficiently alleged the offense with such certainty as to enable the accused, appellant, to know what he was called upon to defend against and to enable him to plea the judgment in bar for any further prosecution for the same offense. See Terry v. State, 517 S.W.2d 554 (Tex.Crim.App.1975). Furthermore, the defect, of which appellant complains, relates simply to the convenience of appellant in making his defense and, by going to trial without raising any such objection, we must presume that appellant found the indictment sufficient to his own satisfaction and waived any objection; a defendant cannot wait to see the State’s case and then, if it appears adverse to him, claim for the first time on appeal that he had no notice of precisely what he was charged with. Trevino v. State, 519 S.W.2d 864 (Tex.Crim.App.1975); See also Drumm v. State, 560 S.W.2d 944 (Tex.Crim.App.1977); Rhodes v. State, 560 S.W.2d 665 (Tex.Crim.App.1978). We find no fundamental error in the indictment. Appellant’s second ground of error is overruled.

It follows that, since the indictment was not fundamentally defective, the court’s charge, which “tracked” the language of the indictment, is also not fundamentally defective. See Cumbie v. State, 578 S.W.2d 732 (Tex.Crim.App.1979). Appellant’s first ground of error is overruled.

In his third ground of error, appellant asserts that the evidence was insufficient to prove that the offense occurred in Victoria County, as alleged in the indictment. Under the provisions of TEX.CODE CRIM.PROC.ANN. art. 44.24(a) (Vernon Supp.1984), an appellate court will presume that venue was proven in the trial court below, unless it was made an issue during trial. Crocker v. State, 573 S.W.2d 190 (Tex.Crim.App.1978); Clark v. State, 558 S.W.2d 887 (Tex.Crim.App.1977); Gill v. State, 646 S.W.2d 532 (Tex.App. — Houston [1st Dist.] 1982, no pet.). At trial, under the provisions of TEX.CODE CRIM.PROC. ANN. art. 13.17 (Vernon Supp.1984), venue need only be proven by preponderance of the evidence. Id. at p. 533. The burden of objecting to the prosecution’s failure to prove venue is on the defendant. Vasquez v. State, 491 S.W.2d 173 (Tex.Crim.App. 1973); Mosley v. State, 643 S.W.2d 212 (Tex.App. — Port Worth 1982, no pet.).

At trial, the child testified that she lived in Victoria County, had gone to schools in Victoria County, moved from Corpus Christi to Victoria County to where she, with her family, lived in a bus, which was located under the Guadalupe River Bridge on Loop 175 in Victoria County. She further testified that, after school on September 1, 1983, a school bus took her home from school and let her off “down at the stop sign” “down past the bridge,” from where she walked home and that, after she returned home, the offense occurred “in the back of the bus.” Terry Henry, a child placement worker with the Child Welfare Division of the Texas Department of Human Resources testified that, on one occasion prior to the offense, she had visited the bus, the family’s home. Henry testified that, at that time, the bus was located under the bridge on Loop 175 by the Guadalupe River in Victoria County. Appellant testified that he had moved the bus, the family’s home, on September 1 or September 2 — “I don’t remember the date.” Furthermore, our review of the record reveals that venue was not made an issue during the trial. In light of the above evidence presented at trial, we hold that the evidence was sufficient for the jury to conclude that the offense occurred in Victoria County, as alleged in the indictment. Appellant’s third ground of error is overruled.

In appellant’s last ground of error, he asserts that the trial court erred in failing to grant a new trial because appellant’s competency to stand trial was never determined. To the contrary, the record reflects that, prior to trial, the trial court ordered a psychiatric examination of appellant which indicated that appellant was competent to stand trial. In that court-ordered psychiatric examination of appellant on September 27, 1983, Dr. Will Calhoun, M.D., specifically found:

Based on the evaluation today, we feel that the patient is competent to stand trial and that he possesses a rational as well as a factual knowledge of the proceedings against him. Has the ability to consult with an attorney in his own defense. Also at the time of the alleged offense, the patient was not suffering from a mental disease or mental defect. He knew right from wrong and had the inherent ability to adhere to the right.

Furthermore, we note that no motion was made nor was any evidence presented before or during trial that appellant was incompetent to stand trial. Regarding the procedures for determining a defendant’s incompetency, TEX.CODE CRIM.PROC. ANN. art. 46.02 § 2 (Vernon Supp.1984) provides:

Sec. 2. (a) The issue of the defendant’s incompetency to stand trial shall be determined in advance of the trial on the merits if the court determines there is evidence to support a finding of incompetency to stand trial on its own motion or on written motion by the defendant or his counsel filed prior to the date set for trial on the merits asserting that the defendant is incompetent to stand trial.
(b) If during the trial evidence of the defendant’s incompetency is brought to the attention of the court from any source, the court must conduct a hearing out of the presence of the jury to determine whether or not there is evidence to support a finding of incompetency to stand trial.

A person is incompetent to stand trial if he does not have (1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding or (2) a rational as well as factual understanding of the proceedings against him. TEX.CODE CRIM.PROC.ANN. art. 46.02 § 1(a) (Vernon Supp.1984); Kirby v. State, 668 S.W.2d 448 (Tex.App. — Corpus Christi 1984, no pet.); Miles v. State, 642 S.W.2d 827 (Tex.App. — Tyler 1982, no pet.). The most recent cases require a competency hearing when “there is evidence to support a finding of incompetency.” Kirby v. State, 668 S.W.2d 448 (Tex.App. — Corpus Christi 1984, no pet.), citing Williams v. State, 663 S.W.2d 832 (Tex.Crim.App.1984); Sisco v. State, 599 S.W.2d 607 (Tex.Crim.App.1980).

We have found nothing in the record to indicate that, before or during trial, appellant was incompetent to stand trial or that would cause the trial court, on its own motion, to conduct a competency hearing. Furthermore, there is nothing in the record which would indicate that, before or at the time of the motion for new trial, appellant had not possessed competency to stand trial at the time of trial. Consequently, we hold that the trial court did not abuse its discretion in failing to grant a new trial because appellant’s competency to stand trial was never determined. Appellant’s fourth ground of error is overruled.

The judgment of the trial court is AFFIRMED.


author: GUILLOT, Justice.

text:
    Wilson PALMER, Appellant, The STATE of Texas, Appellee.
    No. 05-84-00557-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 14, 1985.
    R.K. Weaver, Dallas, for appellant.

      Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for appellee.
    Before STEPHENS, WHITHAM and GUILLOT, JJ.
   GUILLOT, Justice.

Wilson Palmer appeals his conviction for burglary of a habitation. In two grounds of error he contends: (1) that the indictment is fundamentally defective because it is vague on the element of “without effective consent;” and (2) that TEX.PENAL CODE ANN. § 30.02 (Vernon 1974), as interpreted by the Court of Criminal Appeals, is unconstitutionally vague. We disagree with both contentions. Consequently, we affirm.

Palmer’s first contention is that because the indictment fails to set out how consent in this cause was ineffective, it is fundamentally defective. It is by now well-settled that when an indictment alleges “without effective consent,” the defendant is given sufficient notice that consent was lacking for any of the reasons set out in TEX.PENAL CODE ANN. § 1.07(a)(12) (Vernon 1974). Feldman v. State, 576 S.W.2d 402 (Tex.Crim.App.1979). The rule is that an indictment need not plead evidence relied on by the state, only the facts essential to give notice. Thomas v. State, 621 S.W.2d 158, 161 (Tex.Crim.App.1981). Further, this indictment alleges that the entry was without effective consent as “no assent in fact was given by the owner.” We find no merit to this ground of error; therefore, we overrule it.

Palmer next contends that Thomas, 621 S.W.2d 158, renders TEX.PENAL CODE ANN. § 30.02 (Vernon 1974) unconstitutionally vague and ambiguous. Actually, Thomas interprets § 31.01(4), the theft statute, but the definition of “without effective consent” contained therein is virtually the same as the definition in § 1.07(a)(12) applicable to § 30.02, the burglary statute. The court held that the term “effective consent” is neither vague nor indefinite simply because it is statutorily defined. Thomas, 621 S.W.2d at 164. The definition is “purely evidentiary” of, not an element of, the offense. Thomas, 621 S.W.2d at 161. Appellant urges us to hold that the Court of Criminal Appeals’ decision, in particular footnote 2, renders an otherwise valid statute unconstitutionally vague and ambiguous. The footnote provides in part: “Section 31.01(4) negating effective consent is not to be interpreted as an exhaustive list.”

This court recently decided this issue as to section 31.01(4) in Tovar v. State, No. 83-881 (Tex.App. — Dallas, November 16, 1984, pet. filed) (not yet reported). We find that the reasoning in that case is equally applicable to the challenge to section 30.02.

In order to be unconstitutionally vague and ambiguous, appellant must demonstrate that persons of common intelligence would necessarily guess at the meaning of the negation of effective consent and differ as to its application. Papachristou v. City of Jacksonville, 405 U.S. 15 [156], 162 [92 S.Ct. 839, 843, 31 L.Ed.2d 110] (1972); Ahearn v. State, 588 S.W.2d 327, 338 (Tex.Crim.App.1979). A statute is vested with a presumption of validity; the presumption obtains until the contrary is shown beyond a reasonable doubt. Ex parte Granviel, 561 S.W.2d 503, 515 (Tex.Crim.App.1978). It is well settled that a statute is not rendered unconstitutionally vague merely because the words or terms are not specifically defined. Ahearn, 588 S.W.2d at 338.”

Tovar v. State, No. 83-881. This presumption of validity has not been overcome. We overrule this ground of error.

The judgment of the trial court is affirmed.


text:
    Gary COLLVINS, Appellant, v. The STATE of Texas, Appellee.
    No. 6-84-098-CR.
    Court of Appeals of Texas, Texarkana.
    Jan. 15, 1985.

      Jim Hooper, Friedman & Hooper, Texar-kana, for appellant.
    John F. Miller, Jr., Asst. Criminal Dist. Atty., Texarkana, for appellee.
   CORNELIUS, Chief Justice.

Gary Collvins was convicted of murder and assessed punishment of ten years imprisonment. On appeal he raises insufficiency of the evidence grounds and contends that the trial court committed reversible error in admitting into evidence his wife’s affidavit stating she did not wish to testify. We overrule the contentions and affirm the judgment.

On January 21, 1983, Collvins shot and killed his twenty-three year old son, David. The shooting occurred when David was preparing to leave the house to attend his marriage ceremony. Collvins maintained that the shooting was an accident. Shortly after the shooting police officers recorded a question and answer statement by Coll-vins. The statement indicates that Collvins refused to go to his son’s wedding, and that he had been disturbed by his son’s actions in having illegitimate children, and failing to support them. Collvins admitted he shot his son, but denied that he acted intentionally or knowingly, and said he did not know how the shooting occurred.

The following questions and answers ended the statement:

Officer Money: Let me ask you one other important thing — do you think your wife will tell the same thing?
Officer Cannon: She will tell you the truth.
Collvins: Jean will tell you the truth. My wife don’t lie.
Officer Money: Well, I’m neutral in this thing and I don’t know anybody. I just want to know if you think she will tell it the same way.
Collvins: Well, I don’t know if she will tell it the same way, but she will tell you the truth and I don’t want her bothered now. You go ahead and take me and book me in jail. She has been through enough. I hope to God my boy lives and if it comes to it, whatever I have to do, I’ll do it. Now I haven’t lied to you all about it at all.

Before trial, the defense moved to suppress the testimony of Mrs. Collvins pursuant to Article 38.11, Tex.Code Crim.Proc.Ann. (Vernon 1979). The motion stated:

Defendant would show that under Article 38.11 of the Texas Code of Criminal Procedures that the said Jean Collvins is not a competent witness to testify against him and if allowed to be called by the State, it would highly prejudice the jury against him.

Attached to the motion was an affidavit signed by Jean Collvins. The affidavit stated:

COMES NOW Jean Collvins,' the wife of the accused Defendant, Gary Collvins, and after being duly sworn and under oath states and alleges:
I am the wife of the Defendant, Gary Collvins, and that the deceased in this cause, David Collvins, was my son, and at the time of his demise he was 23 years of age.
I further state that I do not wish to testify in this case and respectfully request the Court not to allow the State of Texas to call me as a witness.
SIGNED this 13th day of October, 1983.
Jean Collvins

At trial, the State read portions of the Collvins statement but omitted the concluding portion which discussed Mrs. Collvins. The defense then read the statement to the jury, including the last questions and answers about Mrs. Collvins. After the defense rested its case the State, in rebuttal, offered the motion to suppress and Mrs. Collvins’ affidavit, and the court admitted them in evidence. Collvins objected on the basis of Article 38.11.

Collvins insists that he is entitled to a new trial because the court admitted Mrs. Collvins’ affidavit in evidence.

Tex.Code Crim.Proe.Ann. art. 38.11 provides as follows:

Neither husband nor wife shall, in any case, testify as to communications made by one to the other while married. Neither husband nor wife shall, in any case, after the marriage relation ceases, be made witnesses as to any communication made while the marriage relation existed except in a case where one or the other is on trial for an offense and a declaration or communication made by the wife to the husband or by the husband to the wife goes to extenuate or justify the offense. The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution. However, a wife or husband may voluntarily testify against each other in any case for an offense involving any grade of assault or violence committed by one against the other or against any child of either under 16 years of age, or in any case where either is charged with incest of a child of either, or in any case where either is charged with bigamy, or in any case where either is charged with interference with child custody, or in any case where either is charged with nonsupport of his or her spouse or minor child.

Mrs. Collvins did not testify against her husband, so the literal prohibition of the statute was not violated. Collvins argues, however, that under various decisions of the Court of Criminal Appeals , the effect of the affidavit’s introduction was to make Mrs. Collvins a witness against her husband.

In the decisions cited by Collvins the convictions were reversed because the court concluded that the State’s actions were calculated to cause the jury to take the wife’s refusal to testify as a circumstance of guilt against her husband. The record in this case will not support such a conclusion. There is nothing to indicate the State was trying to use Mrs. Collvins’ affidavit as a circumstance of guilt; only that it was attempting to rebut the defense’s implication that it had something to hide in not producing her testimony. See Roach v. State, 440 S.W.2d 72 (Tex.Cr.App.1969). Indeed, it strains credulity to suggest that the jury was led to believe that Mrs. Collvins’ testimony would be unfavorable to the defense when the record reveals that defense counsel, when the affidavit was introduced, offered in the jury’s presence to allow her to testify and tendered her to the State for that purpose. See Stewart v. State, 587 S.W.2d 148 (Tex.Cr.App.1979).

It has long been the rule in this State that when the defendant’s wife is a fact witness to the crime the State may inform the jury, either by testimony or by jury argument, that the defense can call the wife but the State cannot, and the prosecutor may make the inference that because the defense has not called her, the wife’s testimony would have been damaging to the defense. See Boles v. State, 598 S.W.2d 274 (Tex.Cr.App.1980); Fisher v. State, 511 S.W.2d 506 (Tex.Cr.App.1974); Davis v. State, 160 Tex.Cr.R. 138, 268 S.W.2d 152 (1954); Burman v. State, 61 Tex.Cr.R. 616, 135 S.W. 1175 (1911); Coffey v. State, 60 Tex.Cr.R. 73, 131 S.W. 216 (1910). At the most, what the State did here was to inform the jury that Mrs. Coll-vins chose not to testify, and it did that by using means less damaging to the defense than if it had done so by directly commenting upon the defense’s failure to call her and drawing adverse inferences, as it legitimately could have done. See Stewart v. State, supra; Roach v. State, supra. Reversal of the judgment for such an incident, where the trial has been fair and otherwise free of error, would require a hyper-technical construction of Article 38.-11 and would make a travesty of the law.

In addition, since neither the affidavit nor the motion was read to the jury, and defense counsel indicated to the jury that he was willing for Mrs. Collvins to testify, any error in the admission of the documents was harmless beyond a reasonable doubt. See Stewart v. State, supra; Clayton v. State, 465 S.W.2d 769 (Tex.Cr.App.1971); Jackson v. State, 136 Tex.Cr.R. 574, 126 S.W.2d 965 (1939).

Collvins also asserts that the evidence is insufficient because his confession was uncorroborated. A defendant’s confession must be corroborated by evidence that a crime has been committed. Adrian v. State, 587 S.W.2d 733 (Tex.Cr.App.1979). In murder cases, there must be evidence of the body of the victim, and evidence that the victim died as the result of a criminal act of another. Self v. State, 513 S.W.2d 832 (Tex.Cr.App.1974).

Here, the body of the victim was discovered and identified. An autopsy report revealed that he died from a bullet wound to the head, and evidence showed that the bullet was fired from the gun owned by the appellant which was recovered by police officers at the scene. The confession was sufficiently corroborated. Self v. State, supra.

Collvins argues there was no evidence that he killed his son intentionally or knowingly. Since a gun was used in the killing, the State benefited from the presumption that Collvins acted with the required intent. Fentis v. State, 528 S.W.2d 590 (Tex.Cr.App.1975). Where the gun itself is the only circumstance supporting specific intent, and where all other circumstances indicate that the discharge of the gun occurred as the result of a nonvolitional act, the presumption is rebutted and a conviction resting solely on the presumption cannot stand. Foster v. State, 639 S.W.2d 691 (Tex.Cr.App.1982). In this case, however, a fact issue as to Collvins’ intent existed independent of the presumption. Collvins’ statement indicates that he was displeased with his son because of his lack of support of his children. The circumstances of the shooting raise an inference that Collvins’ displeasure with his son was heightened on his son’s wedding day, and that the shooting occurred in the course of heated argument. There was sufficient evidence supporting the required intent.

The judgment of the trial court is affirmed.

      . Johnigan v. State, 482 S.W.2d 209 (Tex.Cr.App. 1972); Wall v. State, 417 S.W.2d 59 (Tex.Cr.App. 1967); Sovey v. State, 362 S.W.2d 121 (Tex.Cr. App.1962); Davis v. State, 140 Tex.Cr.R. 597, 146 S.W.2d 994 (1940).


text:
    Michelle HOWARD and Marni Howard Van De Veer, Appellants, v. Eva Mae McCULLEY, et al., Appellees.
    No. 05-84-00102-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 18, 1985.
    Rehearing Denied March 15, 1985.

      Esir Tobolowsky, Dallas, for appellants.
    E.A. Weinberg, McKinney, for appellees.
    Before GUITTARD, GUILLOT and ELLIS, JJ.
   GUILLOT, Justice.

This is an appeal from summary judgment denying probate of a will. The deceased’s heirs, Eva Mae McCulley and others, challenged the will and were granted judgment on the sole ground that the will was conditional. The will proponents, Michelle Howard and Marni Howard Van De Veer, appeal and contend that the will is not conditional and that they are entitled to take under the will. We agree with the proponents; thus, we reverse and remand with instructions to admit the will to probate in accordance with this opinion.

Edith H. Elson died leaving the self-proved will here contested. Her husband died several years before her. The execution of this will and Elson’s capacity to make a will are undisputed. Also undisputed are the facts that this is her last will and that it has not been revoked. Elson first left her estate to James Elson if he survived her, then made the following disposition:

In the event my husband, James Elson, and I are killed at the same time, or perish as the result of the same accident, or die within one week of each other as the result of an accident, and in this event only, it is my will and I direct that my estate both real, personal and mixed wheresoever situated and howsoever acquired, shall be divided in three equal parts, share and share alike between my nieces ROCHALLE HOWARD, MARNA HOWARD and HELEN MEDSKER in fee-simple. In the event any of the above named parties have predeceased me or have predeceased any of the here-inabove named beneficiaries, then I direct that the share going to that one or more shall be given to the remaining and living party or parties, equally.

No other provision is made for disposition of the estate if the husband does not survive the textatrix. Consequently, if this provision does not apply, the estate must pass by intestate succession. The evidence showed that Michelle Howard is also known as Rochalle Howard and that Marni Howard Van De Veer is also known as Mama Howard.

It was stipulated that Elson’s will met all the formal requisites. The contestants argue, however, that the language of the first sentence quoted above created a conditional will under Bagnall v. Bagnall, 148 Tex. 423, 225 S.W.2d 401, (1949) and that since none of the conditions — dying at the same time, within a week of each other, or as of the same accident — were met, the will should be denied probate. However, the conditional language of this will does not fall within the rule of Bagnall because the language does not create a condition precedent to the effectiveness of the will. The language here merely creates a conditional disposition of the property under an effective will. The language at the beginning of her will: “I ... do hereby make and publish this my last will and testament” is the language of testamentary intent and it is clearly unconditional.

In denying the will probate, the trial court apparently concluded that the nieces could not take under the will. We conclude, however, that this will may be properly construed as leaving the Elson property to the nieces since Elson’s husband did not survive her. According to the supreme court, “If the will is open to two constructions, that interpretation will be given it which will prevent intestacy.” Ferguson v. Ferguson, 121 Tex. 119, 45 S.W.2d 1096, 1097 (1931). In the circumstances shown here, we hold that the second sentence of the above quoted portion of Elson’s will creates an ambiguity, which opens this will to a second construction that will prevent intestacy. There Elson directed that if any of the above named parties predecease her then that person’s share would go to the remaining parties equally. The word parties is not defined anywhere in the will and could, in the context of this paragraph, legitimately include James Elson. If James Elson is included as a “party,” then because he predeceased Edith Elson his share goes to those who have survived, Michelle and Marni Howard. Since this construction prevents intestacy it is the proper construction to be given by the trial court. Ferguson, 121 Tex. 119, 45 S.W.2d 1096. Accordingly, we reverse the trial court’s order and remand with instructions to admit the will to probate.


author: CANTU, Justice.

text:
    UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO, Frank Harrison and Marvin Dunn, Relators, v. Honorable V. Murray JORDAN, Judge of the 198th Judicial District Court of Kerr County, Respondent.
    No. 04-84-00521-CV.
    Court of Appeals of Texas, San Antonio.
    Jan. 21, 1985.

      Philip Durst, Austin, for relators.
    Jim M. Perdue, Perdue, Turner & Berry, Houston, William Dixon Wiles, Dallas, Paul M. Green, Ron H. Mata, San Antonio, for respondent.
    Before CADENA, C.J., and CANTU and DIAL, JJ.
   OPINION

CANTU, Justice.

The University of Texas Health Science Center at San Antonio, Frank Harrison and Marvin Dunn, the President and Dean of the Medical School respectively, Relators, seek a writ of mandamus to compel Honorable V. Murray Jordan, Judge of the 198th Judicial District Court of Kerr County, to withdraw his discovery order dated November 15, 1984, entered in Cause No. 83-28-B styled, William Reid McClellan and Petti McClellan, Surviving Father and Mother of Chelsea Ann McClellan, a minor, Deceased v. Kathleen Holland, M.D. and Genene Jones, et al., requiring production and discovery of a variety of records in possession of the Medical School (UTHSC/SA).

The question presented is the applicability and scope of TEX.REV.CIV.STAT.ANN. art. 4447d, § 3 (Vernon 1976) to a medical school.

Relators argue that the statute precludes discovery of various and specifically identified documents which have been ordered produced and designated discoverable.

William Reid McClellan and wife, as the real parties in interest and as plaintiffs in the suit in which the discovery of the record has been ordered, argue that Rela-tors have not shown entitlement to the writ because of failure to comply with the rules of civil procedure relevant to mandamus proceedings in this court and because the items sought to be discovered are not protected from discovery under the provisions of Article 4447d. We agree with the Rela-tors as to a majority of the documents sought to be protected from discovery.

The McClellans, as plaintiffs, originally instituted suit against Dr. Kathleen Holland alone, alleging that nurse Genene Jones, while under the employ of Dr. Holland, inflicted injuries upon their minor child, Chelsea Ann McClellan. Plaintiffs alleged and relied upon a theory of negligent hiring and a failure to supervise Jones. Jones was subsequently added as a defendant. Prior to her employment by Dr. Holland, Jones was employed by the Bexar County Hospital Pediatric Intensive Care Unit.

Plaintiffs subsequently amended their petition to include the Bexar County Hospital District (Hospital), its top administrators (B.H. Corum and William Thornton) and one of its nursing supervisors (Patricia Belko) as defendants.

Plaintiffs alleged that these new defendants failed to advise the public in general, the medical profession and more specifically Dr. Holland of dangerous propensities on the part of nurse Jones.

Relator (UTHSC/SA) pursuant to an affiliation agreement provides medical personnel to the Hospital (now known as Medical Center Hospital) for the Pediatric Intensive Care Unit maintained by and housed in the hospital.

Plaintiffs then amended their petition to include as defendants the UTHSC/SA, its president and dean alleging that these defendants also failed to terminate and warn the public, the medical profession and Dr. Holland of nurse Jones’s “propensities”.

Prior to the filing of the lawsuit, the Bexar County District Attorney undertook an investigation into the conduct of nurse Jones during her employment at the Hospital. As a result of the investigation undertaken, the Bexar County Grand Jury subpoenaed a variety of records from numerous sources, including the Hospital and UTHSC/SA. UTHSC/SA supplied all requested information to the Grand Jury.

After the filing of the lawsuit but prior to the Hospital and UTHSC/SA being made’ defendants, the plaintiffs filed in the trial court their “Amended Motion for Production.”

The motion was directed at the then defendants Dr. Holland and nurse Jones as well as to (then non-defendant) Medical Center Hospital, Sam Millsap, District Attorney of Bexar County, and Ron Sutton, District Attorney of Kerr County.

By this motion plaintiffs sought to inspect and copy:

1. All written letters, notes or other tangible writing from GENENE JONES to KATHLEEN HOLLAND dealing with the following matters:
a. Suicide notes or similar memorandum.
b. Memorandum, notes or tangible writings relating to CHELSEA ANN McCLELLAN, which written materials are not otherwise contained in the patient’s office chart which has previously been produced.
c. All applications for employment, personnel file or other writings dealing with the employment by KATHLEEN HOLLAND of GENENE JONES.
d. AH office records, charts and other material prepared by either KATHLEEN HOLLAND or GENENE JONES relating to the treatment and care of:
(1) Brandy Lee Benites.
(2) Christopher Parker.
(3) Jimmy Pearson.
(4) Misty Reichenau.
(5) Jacob Evans.
(6) Rolinda Ruff.
2. All reports letters or correspondence from the Bexar county Hospital (Medical Center Hospital of San Antonio) from or to the Communicable Disease Center, or similar agency of the United States Department of Health relating to that agency’s analysis, investigation or inquiry into deaths which occurred at the Bexar County Hospital in the Pediatric Intensive Care Unit during the years 1978 through 1982 inclusively-
3. The personnel records of Nurse GENENE JONES maintained by the Bexar County Hospital, such record to include all matters in writing maintained in connection with the employment of GENENE JONES including performance analysis and reports, Supervisor’s Job Performance Reports and similar materials.
4. All in house investigations conducted by any individual or groups assigned to investigate, analyze or determine the explanation and cause of deaths occurring in the Pediatric Intensive Care Unit in the years 1978 through 1982 inclusively. Said “Request” is deemed to include all drafts and copies of said reports, whether such were considered the final reports, amended reports, or otherwise. Said reports include but are not limited to, the following:
a. “Report of suspicious Deaths”.
b. Conn Report.
c. Mangus Report.
5. The Patient’s Census or Log Book maintained in the Pediatric Intensive Care Unit and particularly those entries relating to deaths of infants in said unit in the years 1980, 1981, and 1982 inclusively.
6. The list or other written material prepared by Nurse Suzana Maldanodo summarizing infant deaths in the PDI-CU, which list has been turned over either to the Bexar County District Attorney or representatives of the Be-xar County Hospital.
7. All correspondence, memorandum or instruments in writing relating to the resignation or termination of Dr. James Robotham from his position as Director of the Pediatric Intensive Care Unit at the Bexar County Hospital.
8. All recommendations, letters, or other material in writing relating to the reasons for discharge and/or termination of employment of GENENE JONES and her reemployability status.
9. A list of all nurses who worked in the PDICU at the Bexar County Hospital during the year 1981.
10. All minutes of the meeting which occurred during the week of approximately January 31, 1982 between Dr. B.J. Corum, Dr. Marvin Dunn, Dr. James Robotham and others relating to the deaths occurring in the Pediatric ICU at the Bexar County Hospital. Said minutes to include the identification of all persons present as well as any other notations relating to matters considered and discussed at said meeting.
11. All letters and transmittal correspondence relating to all reports, analysis and consideration of reports prepared by individuals or groups on behalf of the Bexar County Hospital relating to the mortality rate of the Pediatric Intensive Care Unit, deaths in said unit or similar subjects.
12. A true and correct copy of the Supplemental Autopsy Report prepared by Kathleen Kagan-Hallet, M.D.

Although filed as of January 9, 1984, the motion for production was not urged until after the Hospital and UTHSC/SA had been joined as party defendants.

On November 2, 1984, UTHSC/SA, its president and dean filed objections to the plaintiffs’ amended motion for production. In the objections the Relators asserted a statutory privilege in many of the documents requested, even though requested from the Hospital and the aforementioned district attorneys. Relators invoked the provisions of Article 4447d and TEX.R. CIV.P. 166b(3)(d) as to the items sought in requests 4, 6, 7, 8, 10, and 11 of plaintiffs’ discovery motion. However, Relators’ prayer sought to protect only requests 4, 7, 8, 10, and 11 under the privilege afforded by the Statute and rule.

On November 7, 1984, a hearing was held on “Plaintiffs’ Amended Request for Production.” The Hospital produced the requested items in sealed envelopes and the Bexar County District Attorney delivered to the District Clerk of Kerr County a sealed box containing the material subpoenaed.

Respondent Jordan then conducted an in camera inspection of the items furnished by the Bexar County District Attorney and on November 15, 1984, issued the order which forms the basis of this proceeding.

The order recites that all items inspected in camera and contained within the box produced by the Bexar County District Attorney are deemed to be discoverable and that none of the items are privileged under article 4447d, section 3. The order does not mention Rule 166b(3)(d).

Relators argue that the order entered by respondent requires the production and discovery of documents not requested by plaintiffs’ motion.

Since only certain items were sought to be protected under the statute and rule and because we are asked to declare that only those items are privileged we do not concern ourselves with the scope of discovery as it affects other items examined but not complained of, even if originally not requested.

Relators have included, as exhibits to their petition for writ of mandamus, those items sought to be protected under the statute. They have been conveniently packaged in segregated envelopes marked “A” through “E”.

Each envelope contains a label identifying the contents as follows:

Envelope “A” allegedly contains the report, drafts and working papers of a Hospital Committee chaired by Dr. A.W. Conn which was established pursuant to UTHSC/SA by-laws to investigate and make recommendations concerning the quality of care provided in the Pediatric Intensive Care Unit. The items are said to correspond to plaintiffs' requested item 4(a).

Envelope “B” allegedly contains the reports, minutes and working papers of a hospital committee chaired by Dr. John Mangos, chairman of the Medical School Department of Pediatrics, which was established pursuant to UTHSC/SA by-laws to investigate and make recommendations concerning the mortality rate and causes of death of critically ill children in the Pediatric Intensive Care Unit. The items are said to correspond to plaintiffs’ requested items 4(c) and 11.

Envelope “C” allegedly contains the reports, minutes, proceedings and recommendations of the “Pediatric Intensive Care Unit Committee” chaired by Medical School Faculty Member Dr. Arthur McFee and which was established pursuant to UTHSC/SA and Hospital by-laws to coordinate and supervise all areas of care provided within the Pediatric Intensive Care Unit. These items were not included within the discovery motion filed by plaintiffs but were deemed discoverable under Respondent’s order since they were contained within the box of material provided by the Bexar County District Attorney.

Envelope “D” allegedly contains the minutes, reports and recommendations of a Hospital committee chaired by Dr. Howard Radwin and which was established as an ad hoc committee pursuant to Hospital bylaws to investigate and make recommendations concerning the quality of care in the Pediatric Intensive Care Unit in late 1981 and early 1982.

These items were not included within the discovery motion filed by plaintiffs but were deemed discoverable under Respondent’s order since they were contained within the box of material provided by the Bexar County District Attorney.

Envelope “E” allegedly contains the working papers, notes, and investigative reports performed by or at the request of members of the various committees previously identified. Relators assert a dual privilege in these documents under article 4447d as part of the work product of a hospital committee and under TEX.R. CIV.P. 166b(3)(d) as communications among agents or employees of a party, made for the purpose of investigating the events upon which a suit is based. These items were not included within the discovery motion filed by plaintiffs but were deemed discoverable under Respondent’s order since they were contained within the box of material provided by the Bexar County District Attorney.

TEX.REV.CIV.STAT.ANN. art. 4447d, § 3 provides:

The records and proceedings of any hospital committee, medical organization committee or extended care facility committee established under state or federal law or regulations or under the by-laws, rules or regulations of such organization or institution shall be confidential and shall be used by such committee and the members thereof only in the exercise of the proper functions of the committee and shall not be public records and shall not be available for court subpoena; provided, however, that nothing herein shall apply to records made or maintained in the regular course of business by a hospital or extended care facility. No physician, hospital, organization, or institution furnishing information, data, reports or records to any such committee with respect to any patient examined or treated by such physician or confined in such hospital or institution shall, by reason of furnishing such information, be liable in damages to any person. No member of such committee shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him.

TEX.R.CIV.P. 166b(3)(d) provides:

The following matters are not discoverable:
with the exception of discoverable communications prepared by or for experts, any communication passing between agents or representatives or the employees of any party to the action or communications between any party and his agents, representatives or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim has arisen; and

Relators point out that in early January of 1982, UTHSC/SA together with the administrators of the Bexar County Hospital, established several separate committees to investigate the quality of care being provided in the Pediatric Intensive Care Unit during the immediate preceding years. These committees, UTHSC/SA alleges, were comprised of members of the medical school faculty and members of the Bexar County Hospital District Staff and were organized to investigate and issue recommendations regarding improving different aspects of the quality of care provided in the Pediatric Intensive Care Unit.

Relators urge us to ascertain the applicability of Article 4447d to the various documents claimed to be privileged by first determining whether the several committees identified were established under the by-laws, rules or regulations of the institution asserting the privilege. We agree with this approach and will adhere to it in our analysis of the various documents.

We begin with Relators’ admission that the items contained within envelope “D” are the product of an ad hoc committee established pursuant to Hospital bylaws. Applying the foregoing test, the proper institution to assert the privilege is the Hospital, and the Hospital has not complained of the trial court’s ruling in the proceeding before us and presumably is no longer asserting a privilege with regard to these documents, if it ever did.

Envelopes “A” and “B”, according to Relators, contain documents which are the product of a Hospital Committee established pursuant to UTHSC/SA by-laws. Under the foregoing test these documents would enjoy the privilege asserted by Rela-tors.

Envelope “C”, Relators assert, contains documents which are the product of committee established pursuant to the bylaws of both, the Hospital and the UTHSC/SA. Such a committee would be common to both and under the holding in Texarkana Memorial Hospital, Inc. v. Jones, 551 S.W.2d 33, 35 (Tex.1977) the privilege of confidentiality afforded to records and proceedings of any medical organization committee would extend to such a committee, even if answerable to different entities.

The contents of envelope “E” are not claimed to be records and proceedings of any committee. Rather it is alleged, the documents constitute working papers, notes and investigative reports of various individuals who are also members of the committees heretofore described. Privilege is sought under Article 4447d and TEX.R.CIV.P. 166b(3)(d). Such items will be protected if they constitute work product of a committee or communications among agents or employees of a party made for the purpose of investigating the events upon which a suit is based.

We now examine the contents of each envelope to determine its entitlement to the privilege.

Envelope “A” contains the results of an on-site evaluation of the Pediatric Intensive Care Unit conducted the middle of February, 1982, by a team of visiting physicians headed by Dr. A.W. Conn at the request of Dr. B.H. Corum, Executive Director, Bexar County Hospital District and Dr. Marvin Dunn, Dean of the Medical School. Included are the on-site visit schedule, Preliminary report, final report and two memorandums from Dr. James L. Robotham detailing recommended changes. The purpose of the evaluation is listed as “improvement in the quality of care of critically ill children in Bexar County.”

Envelope “B” contains reports from a record review committee headed by Dr. John Mangos and created at the request of Dr. Corum and Dr. Dunn to follow-up on the on-site evaluation by reviewing records of patients cared for in the Pediatric Intensive Care Unit during calendar year 1981.

Envelope “C” contains memorandum of minutes and summaries of those minutes of several meetings of the Pediatric Intensive Care Unit Planning and Policy Committee headed by Dr. Arthur McFee. All the instruments are prepared by Dr. McFee for dissemination of the several members of the committee and to Dr. Corum and Dr. Dunn.

Envelope “D” contains a memorandum from Dr. Howard M. Radwin, president of the Medical-Dental Staff to Dr. Robotham, director of the Pediatric Intensive Care Unit and to a director of Nursing requesting both to look into the quality of care in the Pediatric Intensive Care Unit and to report their findings to an ad hoc committee to be chaired by Dr. Radwin. Also included are the minutes of the committee meeting wherein the findings were discussed and plans made for the on site evaluation to be conducted by Dr. Conn.

Envelope “E” contains the personal notes of individual members of the various committees established to investigate unexpected events in the Pediatric Intensive Care Unit. There are also included, memorandums from members of the committees to other members and to the chairman of the appropriate committee. These memorandums and notes are all related to the continuing investigation into the quality of care being administered by the Pediatric Intensive Care Unit of the hospital. These documents constitute the deliberations of the very group of persons sought to be protected when functioning as a committee. As such their deliberations fall within the protection of Article 4447d, § 3. Texarkana Memorial Hospital, Inc. v. Jones, supra at 35.

There are, however, included within the papers four letters written by either Dr. Robotham or Dr. Dunn which, although touching upon the events involving the internal probe into the functioning of the Pediatric Intensive Care Unit, are more of a personal nature.

These letters dated March 2, 1982, March 25, 1982, March 26, 1982, April 5, 1982, April 12, 1982 and March 4, 1983, are not the products of a committee nor related to their proper functions although they might incidentally touch upon the subject matter entrusted to an investigating committee. Nor do we think that these letters are protected by TEX.R.CIY.P. 166b(3)(d) as a communication between agents or representatives or the employees made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation or defense of the claim or the investigation of the occurrence or transaction out of which the claim arose.

The letters, plainly and simply, are Dr. Robotham’s efforts to defend his performance as chairman of the Department of Pediatrics following his replacement in that capacity by Dr. John Mangos and the response to those efforts by the Dean of the Medical School. One other letter from Dr. Dunn, to the Executive Vice Chancellor for Health Affairs, The University of Texas System, appears to be an elaborate detailing of the evaluative efforts into the Pediatric Intensive Care Unit and subsequent corrective measures taken.

The letters more accurately fall within the category of business and administrative files and papers not forming a part of the committee deliberations. Their confidentiality is not preserved by the statute or the rule. Texarkana Memorial Hospital, Inc. v. Jones, supra at 35; Butler, Hospital Peer Review Committees: Privileges of Confidentiality and Immunity, 23 S.TEX. L.J. 45 (1982).

In summary, we conclude that all the items contained in envelopes “A”, “B” and “C” are protected by the privilege of confidentiality afforded by Article 4447d § 3. The items contained in envelope “D” are also afforded the privilege of confidentiality as deliberations of a Hospital committee. The Hospital is not asserting the privilege so far as the record before us reflects. We hold that Relators may not assert the privilege for the Hospital even if the documents are also in the possession of the medical school. Inasmuch as the discovery order applies to both the Medical School and the Hospital and the Hospital appears to have complied with the subpoena request without objection we see no harm in declining to recognize Relators’ standing to assert a privilege not intended by the statute.

The contents of envelope “E” are also protected by the privilege of confidentiality with the exception of those letters previously identified and which we now segregate into our envelope “E” for identification purposes.

We, therefore, hold that the statute prevents discovery of all the items except those contained in Envelope “D” and our Envelope “E”. The order of the trial court must, therefore, be withdrawn and modified by the trial court to permit discovery only of those items not protected by the privilege as per the guidelines established in this opinion. The writ of mandamus will not issue unless the trial court fails to comply with this order.

      . Whatever infirmity the Petition for Mandamus may have had was corrected with the filing of a Supplemental Petition at the time the cause was submitted.