text:
    Jose Maldonado GARZA, Appellant, v. STATE of Texas, Appellee.
    No. 13-84-240-CR.
    Court of Appeals of Texas, Corpus Christi.
    March 7, 1985.
    J. Manuel Banales, Corpus Christi, for appellant.
    Grant Jones, Nueces County Dist. Atty., Corpus Christi, for appellee.
    Before KENNEDY, UTTER and KEITH, JJ.

      . Associate Justice (Ret.), Court of Appeals, Ninth Supreme Judicial District, sitting by designation. TEX.REV.CIV.STAT.ANN. art. 1812(d) (Vernon Supp.1985).

   OPINION

KENNEDY, Justice.

In a jury trial appellant entered a plea of guilty to an indictment charging him with a subsequent offense of driving a motor vehicle while intoxicated. Punishment was assessed by the jury at five months’ confinement in the Nueces County Jail.

The record reflects that on October 31, 1979, appellant entered a plea of nolo con-tendere to, and was convicted of, a previous charge of driving while intoxicated. In the instant case appellant’s indictment states, as an element of the offense charged, that he was convicted of the previous misdemeanor offense of driving while intoxicated on the 31st day of October, 1979. In his first ground of error, appellant contends that the trial court erred by denying appellant’s motion to strike the “enhancing language” from the indictment. Appellant argues that the 1979 conviction was fundamentally defective (1) because the record contained no waiver of his rights to the appearance, confrontation and cross-examination of witnesses, and (2) because there was no evidence in the record to support the plea of nolo contendere that was entered in that cáse.

Appellant’s waiver of his right of confrontation need not be specifically set out in the record, especially where, as here, the previous misdemeanor conviction is merely an element of the felony offense now charged. Our decision is reinforced by analogous holdings by other courts that even the statutory admonishment of TEX. CODE CRIM.PROC. ANN. art. 26.13 (Vernon Supp.1985) need not precede the acceptance of a plea of guilty to a misdemeanor. Empy v. State, 571 S.W.2d 526 (Tex.Crim.App.1978); Hutson v. State, 652 S.W.2d 807 (Tex.App. — Tyler 1983, no pet.). Although appellant did not testify at the hearing on the motion to suppress the previous misdemeanor conviction, the prior conviction does contain a plea-of-guilty form similar to the one cited by this court in overruling an identical challenge in the case of Maxey v. State, 626 S.W.2d 180 (Tex.App. — Corpus Christi 1981, pet. ref’d).

We also reject appellant’s contention that the previous conviction was invalid because the record contained no evidence to support the previous plea of nolo conten-dere. After a plea of “guilty” or “nolo contendere” in a misdemeanor case, punishment may be assessed by the court either upon or without evidence, at the discretion of the court. TEX.CODE CRIM.PROC. ANN. art. 27.14(a) (Vernon Supp.1985). In a misdemeanor case the State is not required to offer evidence in support of a plea of guilty. Brown v. State, 507 S.W.2d 235 (Tex.Crim.App.1974); Maxey at 182. Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred by failing to properly admonish appellant after he “entered his plea of guilty to the indictment before the jury” as required by TEX.CODE CRIM.PROC.ANN. art. 26.13 (Vernon Supp.1985). The State concedes that admonishments were not given before the trial court accepted the guilty plea. The abstract portion of the court’s charge informed the jury that appellant “persisted in entering his plea of guilty notwithstanding that the court, as required by law, has admonished him of the consequences.” Similarly, the judgment states that “[bjefore his plea of guilty to the jury [appellant] had been duly admonished by the court outside the presence of the jury as to the consequences of such plea as required by law.” Had the record clearly reflected that appellant was admonished about the range of punishment for the offense to which his guilty plea was entered, there would be some question about whether the statements in the charge and judgment would be sufficient to establish that the admonishment was given. See Creeks v. State, 537 S.W.2d 29 (Tex.Crim.App. 1976); Dawson v. State, 491 S.W.2d 687 (Tex.Crim.App.1973). But see King v. State, 502 S.W.2d 800 (Tex.Crim.App.1973) (Footnote 2); Ex Parte Chavez, 482 S.W.2d 175 (Tex.Crim.App.1972). We note, however, that the record must affirmatively show admonishment as to the range of punishment, or the guilty plea will be rendered invalid; such an omission is fundamental error. An affirmative showing that appellant entered his plea with full knowledge of its consequences is constitutionally required as well. Whitten v. State, 587 S.W.2d 156 (Tex.Crim.App.1979).

Especially in light of the State’s concession of error, we will not speculate on whether the trial court actually admonished appellant “as required by law.” Appellant’s second ground of error is sustained. The judgment of the trial court is REVERSED and the cause is REMANDED.


source: Caselaw Access Project

author: BROOKSHIRE, Justice. BROOKSHIRE, Justice. BURGESS, Justice.

license: Public Domain

text:
    Jimmy TULLOS, Appellant, v. EATON CORPORATION, et al., Appellees.
    No. 09-83-240 CV.
    Court of Appeals of Texas, Beaumont.
    March 7, 1985.
    Rehearing Denied April 4, 1985.
    As Corrected March 18, 1985.

      George Chandler, Lufkin, for appellant.
    Ralph Zeleskey, Lufkin, Paul Jensen, Houston, Joe Scott Evans, Groveton, for appellees.
   OPINION

BROOKSHIRE, Justice.

Plea of privilege ease. The Appellant appeals from an adverse order transferring his alleged cause of action against James Herman Gibson to Trinity County. Tullos’ cause of action against Eaton Corporation and James Herman Gibson was filed in Angelina County. It is uncontroverted that Eaton Corporation is a private corporation and that Eaton had no agency or representative in Trinity County — the county of Tullos’ residence — at the time the cause of action arose and at that same time the suit was brought against Eaton in the county adjacent and nearest to Trinity County, being Angelina County. Said corporation, at that time, had an agency, office and representative in Lufkin. The suit is lawfully maintainable, under the existing statute at the time of filing, TEX. REV. STAT.ANN. art. 1995 subd. 23 (Vernon 1964) (repealed), in Angelina County, against Eaton. There are two defendants. TEX.REV. CIV.STAT.ANN. art. 1995, subd. 29a (Vernon 1964) (repealed) provided that such suit could be maintained against any and all necessary parties.

The record clearly demonstrates that Eaton owned the equipment which was on the job where Tullos was injured. Eaton had a branch manager in Lufkin who had the authority and power to sell and service Eaton’s logging equipment, such as Tim-berjack skidders and Prentice loaders. This branch manager had salesmen under him. He had the power to hire and fire them. Eaton had mechanics to repair and replace the logging equipment and the brake systems thereon.

Among other testimony, there is evidence that James Herman Gibson ordered a 360 Timberjack by phone from Eaton. When it was delivered, according to some testimony, the brakes were apparently defective in that, after it was unloaded, it nearly ran into a nearby church. Thereafter, Gibson was told “that the thing had a bad hydraulic leak and no brakes, that it needed to be worked on.”

A version of evidence of the surrounding events is that when one of the men, apparently a co-employee working with or under Gibson, attempted to push down a tree in the forest the brakes did not work or did not work properly. The Timbeijack could not be stopped. The tree was hurled down, hitting and injuring, apparently seriously, Tullos.

It seems reasonably clear from the Statement of Facts on the Plea of Privilege that the posture of the Plaintiff/Appellant is now, and will be, that he will attempt to establish negligence on the part of Eaton Corporation and Gibson, of various sorts. Further, the claimant will attempt to establish theories of strict liability or products liability against Eaton. Against Gibson, he has pleaded failure to provide a safe place to work and failure to provide reasonably safe tools and equipment, pleading that they are non-delegable duties.

The record reveals that there will be a question as to whether Gibson was eligible to be a subscriber under Workers’ Compensation Law of Texas. Subject to the resolving of that issue, there will probably be a number of defensive issues inquiring about the Plaintiff/Appellant’s acts. Deci-sional law has been established that, in determining whether a party is a necessary party under TEX.REV. CIV.STAT.ANN. art. 1995, subd. 29a (Vernon 1964) (repealed), the non-resident Defendant’s join-der will be necessary, if needed to afford complete relief to claimant.

Appellant has alleged that he was an employee of Gibson. Gibson concedes that Tullos pleaded that Gibson acted as an agent for Eaton in furnishing on-the-job defective equipment at the very place where Tullos was trimming branches off downed logs. Joint liability and several liability, as well as a joint cause of action, is sought to be imposed upon the Defendants/Appellees.

It is clear that on the causation questions, in reasonable probability, that both producing cause and proximate cause will be vital issues affecting liability of either or both Defendants/Appellees. We find that the Appellant has proven his cause of action against Eaton, showing the propriety of venue against Eaton in Angelina County. Actually, no contest was made by Eaton. R. McDonald, “Texas Civil Practice in District and County Courts, 1 Texas Civil Practice, see. 4.36, page 448 (Rev. 1981), approves this quote:

“Every party whose joinder in the suit is necessary to the securing of full relief in ‘such suit’ is a necessary party in the sense that term is used in subdivision 29a.”

McDonald’s footnote cites Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (1939). Accord Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616 (1951). Thereafter, the Supreme Court refined and modified this statement to the effect that a party is necessary within the subd. 29a exception: “[I]f the complete relief to which plaintiff is entitled under the facts of the case as against the defendant properly suable in that county can be obtained only in a suit to which both defendants are parties.” Union Bus Lines v. Byrd, 142 Tex. 257, 177 S.W.2d 774, 775 (1944).

Also, where the facts and circumstances are such that the negligence or fault of one defendant is imputable to the other, then the defendant to whom the fault was imputed has been held to be a necessary party under subd. 29a. Whitley v. King, 227 S.W.2d 241 (Tex.Civ.App. — Waco 1950, no writ). See Port Terminal RR. Ass’n. v. Leonhardt, 289 S.W.2d 649 (Tex.Civ.App.— Fort Worth 1956, no writ). See and compare Schwertner v. Nalco Chemical Co., 615 S.W.2d 263 (Tex.Civ.App. — Tyler 1981, writ dism’d).

We find and hold that the cause of action against each Defendant/Appellee is intimately intertwined. This is transparently true concerning the damage issue. It is manifest that this is a suit for large, alleged personal injuries and damages.

For this claimant to secure full relief, or complete relief, it is glaringly clear that he should be afforded the opportunity to have concurrently, legally correct allocation of damages under a system of judicially fashioned comparative causation. See and compare the rationale of Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984), sometimes referred to as “Duncan II Opinion”. There was a previous case, bearing the same style, Duncan v. Cessna Aircraft Co., 632 S.W.2d 375 (Tex.App. — Austin 1982, writ granted), reversed, 665 S.W.2d 414 (Tex.1984), withdrawn February 15, 1984. It has become known as “Duncan I”.

Several fairly recent judicial decisions and statutes, as well as the Duncan opinions, Duncan I and II, necessarily affect the defenses available to Appellees and drastically determine, as well, the allocation of damages to multiple defendants. Admittedly “Duncan II” is a late case, decided after this suit.

General Motors Corp. v. Simmons, 558 S.W.2d 855 (Tex.1977), involved a factual situation in which strict liability defendants, as well as negligence defendants, were involved. There, the court held that, under such facts, the case did not come within the scope of TEX.REV.CIV.STAT. ANN. art. 2212a (Vernon Supp.1985); hence, TEX.REV. CIV.ST AT. ANN. art. 2212 (Vernon 1971) controlled and governed the case. Appellant was injured in 1978. In General Motors Corp., supra, handed down on November 9, 1977, the court wrote, at page 862:

“We observe, however, that the system of comparative negligence and the apportionment of damages among negligent tortfeasors under Article 2212a is different from the division of damages among negligent and strictly liable tortfeasors under Article 2212. The present state of the statutory law permits apportioning contribution upon comparisons of negligent conduct among negligent tort-feasors. It does not provide any mechanism for comparing the causative fault or percentage causation of a strictly liable manufacturer with the negligent conduct of a negligent co-defendant. Article 2212a and the comparative causation advanced in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), portend problems which may retard the orderly trial of personal injury and property damage cases.... ”

It seems a fair comment to say that in General Motors Corp. v. Hopkins, 548 S.W.2d 344 (Tex.1977), the court considered and approached using comparative causation findings applicable in strict products liability cases. There, the plaintiff, Hopkins, had misused a product which was found to be unreasonably defective. Hopkins contributed to his own injuries and damages; the court held that when the injured plaintiffs misuse is a proximate cause of the damaging event, then the jury should determine and allocate the respective percentage which each cause contributed to the event; holding, however, that such misuse would not be an absolute bar to the claimant’s recovery. Misuse would be in the nature of a partial defense.

We readily concede that “Duncan I and II” were decided after the alleged date of this Appellant’s injuries, being July 13, 1978. Nevertheless, the decisional law existing as of the injury date in our case compellingly leads us to the conclusion that James Herman Gibson is a necessary party. The order sustaining his plea of privilege is reversed and the entire case is to be tried in the District Court of Angelina County.

ON MOTION FOR REHEARING

BROOKSHIRE, Justice.

For the first time, in his Motion for Rehearing, Appellee, James Herman Gibson, argues that the Court of Appeals lacks jurisdiction to hear the appeal of Appellant, Jimmy Tullos. Gibson argues that we erred in reviewing the trial court’s order granting Gibson’s Plea of Privilege. We hold that points of error not raised in Ap-pellee’s brief may not, thereafter, be advanced in his Motion for Rehearing. Aycockv. Travis County, 255 S.W.2d 910 (Tex.Civ.App. — Austin 1953, writ ref’d). See also STATE BAR OF TEXAS, APPELLATE PROCEDURE IN TEXAS, “Motion for Rehearing”, Sec. 23.10 at 551 (2d ed. 1979).

The hearing on the Plea of Privilege was held on April 27, 1983. Deposition testimony and in-court testimony was presented. Testimony of nine witnesses was presented along with medical records. The hearing was conducted properly prior to the 1983 amendment of TEX.REV. CIV.STAT.ANN. art. 1995 (Vernon Pamph.Supp.1985).

Appellee, Gibson, contends that this court totally lacks jurisdiction, arguing that no interlocutory appeal shall lie from such determination. Clearly, he is referring to one sentence of TEX.REV.CIV.STAT. ANN. art. 1995, sec. 4(d)(1) (Vernon Pamph.Supp.1985). The amended art. 1995 was effective September 1, 1983. Art. 1995, sec. 4(d)(1) should be construed in its entirety. It reads:

“Hearings. (1) In all venue hearings, no factual proof concerning the merits of the case shall be required to establish venue; the court shall determine venue questions from the pleadings and affidavits. No interlocutory appeal shall lie from such determination.”

We hold that it is when the trial court determines the venue questions from the pleadings and affidavits only that no interlocutory appeal shall lie, which is the current practice. The court below did not determine this plea of privilege from the pleadings and affidavits but rather after a full hearing of testimony from nine witnesses.

Gibson’s appellate brief, under Counterpoint No. 3, contains the following statements:

“The Trial Court was correct in not applying V.A.T.S., Article 1995, as amended, to the present case, since the venue law to be applied is the law in effect at the time the hearing was held.
“... [C]ases have specifically held the venue of an action to be controlled by the law in effect at the time the suit is filed.
“... As such, a defendant has a vested right in having his plea of privilege controlled by the law in effect at the time suit is filed against him.
“... Seemingly it is clear, that at the time the suit was filed and the hearing was held, all parties, and the trial court, were in agreement that the law in effect at that time was controlling. After the amendment went into effect, Plaintiff made no attempt to gain another hearing or to persuade the trial court that the amended law would control. Defendant Gibson has a vested right to have the venue in this matter controlled by the law in effect at the time the hearing was held and argued_” (Emphasis added)

In their briefs, and especially in their oral submissions, both parties took the position that the appeal was properly before us and, therefore, we had jurisdiction to determine the same. After that course of conduct, we believe it unseemly and inappropriate to allege lack of jurisdiction initially in the motion for rehearing.

The occurrence sued on took place July 13, 1978. We observe that six years and eight months have transpired. Under the prior venue statute and practice the parties are still litigating in which county courthouse, or courthouses, the merits of the case should be tried.

We overrule the Motion for Rehearing.

DISSENT ON MOTION FOR REHEARING

BURGESS, Justice.

I respectfully dissent. The majority has a disdain for the manner in which the jurisdiction question was presented to this court. In that, I agree. I must, however, dissent to the majority’s holding that the question of jurisdiction may not be advanced in the appellee’s motion for rehearing since it was not raised in his brief. As a general rule the majority is correct. The question of jurisdiction is an exception, if not the exception. The jurisdiction of this court may be raised and decided at any stage of the proceedings. St. Louis

Our court, this date, in Reserve Life Insurance Co. v. Blackstock, No. 09-83-253 CV (Tex.App. — Beaumont, April 4,1985, no writ) (not yet reported), has aligned itself with other courts of appeal which follow the rule that an interlocutory appeal only lies if the appeal was pending as of September 1, 1983. See Wells v. Metro Fina Co., 677 S.W.2d 251 (Tex.App. — El Paso 1984, no writ); Voss International, Inc., v. General Portland, Inc., 670 S.W.2d 771 (Tex.App. — Austin 1984, no writ); Grubbs v. Mercantile Texas Corp., 668 S.W.2d 429 (Tex.App. — Eastland 1984, no writ); Boyd v. Raymondville State Bank, 668 S.W.2d 466 (Tex.App. — Corpus Christi 1984, no writ); Morrison by Morrison v. Williams, 665 S.W.2d 212 (Tex.App. — San Antonio 1984, no writ). This appeal was not pending September 1, 1983. I would, therefore, dismiss the appeal.


author: RALEIGH BROWN, Justice.

text:
    SOUTHEASTERN RESOURCES CORPORATION et al., Appellants, v. Robert M. KINCAID et al., Appellees.
    No. 11-84-223-CV.
    Court of Appeals of Texas, Eastland.
    March 7, 1985.

      Scott A. Moreloek, William W. Bell, Bell & Ellis, Brownwood, for appellants.
    W.H. Hoffmann, Jr., Hoffmann and Sie-bert, Eastland, for appellees.
   RALEIGH BROWN, Justice.

This case involves the ownership of an undivided mineral interest. Southeastern Resources Corporation and the heirs of W.H. Williams, (W.H. Williams, Jr., Joseph R. Williams, Elizabeth W. Langston and Sara Alice Stevens), appellants, commenced this action to remove an alleged cloud on their title to a mineral interest asserted by Robert Kincaid and the heirs of W.L. Williams, (Cleo Williams, Dollie M. Williams, Marviline Williams Coffey, Loren Coffey, Thomas W. Williams, Leona Williams Minor, Billy Joe Minor, Emma Lee Williams Helms, Jack D. Helms and Thurmond R. Williams), appellees. The appellees filed a counterclaim seeking removal of the cloud cast on their alleged title because the heirs of W.H. Williams had executed an oil and gas lease to Southeastern Resources Corporation on the property. The jury answered a single special issue in favor of the heirs of W.L. Williams and their lessee, Robert M. Kincaid. Judgment was entered for them. The heirs of W.H. Williams and Southeastern Resources appeal. We reverse and render.

In 1918, Mr. and Mrs. Sebe Boyd executed a mineral deed. The County Clerk’s records show that this deed conveyed to W.H. Williams an undivided one-fourth oil, gas and mineral interest in a certain 160-acre tract in Eastland County, Texas. The original deed is and has been lost for several years. However, the deed was recorded in the official records of the Eastland County Clerk’s office on February 3, 1919, by typing the document from its original form. The recorded typed copy recited W.H. Williams as the grantee. The register of instruments kept by the county clerk reflects the conveyance from the Boyds to W.H. Williams of the undivided mineral interest and shows that the instrument was returned after recording to W.H. Williams.

W.H. Williams died in 1941, leaving a widow, Maggie Williams. Upon his death, the Inventory, Appraisement and List of Claims of his estate failed to list this mineral interest as part of his estate. Maggie Williams died in 1973. Her sons, Joseph R. and W.H. Williams, Jr., were named co-executors of her estate. Joseph found documents in both his parents’ handwriting which stated that the mineral interest in question was an asset of their estates. Joseph informed his brother and sisters of the mineral interest. They leased the land to Southeastern Resources Corporation on October 1, 1981.

W.L. Williams died in 1955. He was survived by his wife, Emma Bobbie Williams, and seven children. Emma passed away in 1977. W.L. Williams’ heirs contend that they became aware in 1979 that they might own a mineral interest through a conversation with now-deceased Tom Davis, a former friend of W.L. Williams. Upon learning this information, Cleo Williams, on behalf of W.L. ⅛ other heirs, spoke with Robert Kincaid. Subsequently, W.L. ⅛ heirs and Kincaid entered into a lease agreement.

After the Kincaid lease was signed and recorded, appellants initiated the instant suit against the appellees for damages and for the removal of the cloud on their title.

It is undisputed that the original 1918 mineral deed is lost. The only official record of the conveyance is the recordation of the deed as contained in the Eastland County Clerk’s office, which was recorded in 1919. The record states that W.H. Williams was the grantee of a undivided ¼⅛ mineral interest. The appellants’ pleading asserted that they were the owners of the mineral interest and that the appellees had created a cloud on the title by executing their lease to Kincaid. The appellees pled a general denial. They further asserted in a counterclaim that they were the owners of the mineral interest and that the appellants had created a cloud on their title by executing the lease with Southeastern Resources. The thrust of appellees’ position is that the county clerk erred in typing the grantee’s name. They contend that the grantee’s name should have been typed W.L. rather than W.H. Williams. Appel-lees do not seek reformation of the deed. Any such action would be barred by limitation. TEX.REY.CIV.STAT.ANN. art. 5529 (Vernon 1958); Brown v. Hovard, 593 S.W.2d 939 (Tex.1980).

The jury found, responding to a single special issue, that the grantee in the mineral deed was W.L. Williams. Judgment was therefore entered by the trial court that W.L. Williams was the grantee in a mineral deed dated November 23, 1918, by and between Sebe Boyd and wife, Lummie Boyd and W.L. Williams, same being recorded in Volume 127, page 654, Deed Records of Eastland County, Texas.

Appellants urge that the trial court erred in overruling their motion for an instructed verdict. We agree.

The rule to be applied in passing upon the propriety of granting an instructed verdict is stated in Collora v. Navarro, 574 S.W.2d 65 (Tex.1978) as follows:

The task of an appellate court in such a case is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented. The court must consider all of the evidence in the light most favorable to the party against whom the verdict was instructed, discarding all contrary evidence and inferences. Henderson v. Travelers Ins. Co., 544 S.W.2d 649 (Tex. 1976); Echols v. Wells, 510 S.W.2d 916 (Tex.1974). When reasonable minds may differ as to the truth of controlling facts, the issue must go to the jury. Najera v. Great Atlantic & Pacific Tea Co., 146 Tex. 367, 207 S.W.2d 365 (1948).

In Anderson v. Barnwell, 52 S.W.2d 96 (Tex.Civ.App. — Texarkana 1932), aff’d on other grounds, 126 Tex. 182, 86 S.W.2d 41 (Tex.Comm’n App.1935, judgment adopted) the court said:

The law intends to and does favor the recorded title, and any conveyance which is duly recorded must thereby obtain all the benefits which depend upon or flow from the fact of registration.

26 C.J.S. Deeds sec. 71 (1956) says: “The design of recording laws is to prevent fraud and to permit and require the public to act with the presumption that recorded instruments exist and are genuine.” See also TEX.R.EVID. 902(4) and 1005.

Considering all the evidence in the light most favorable to the appellees, the proof established the heirship of W.L. Williams and that all of his heirs entered into a lease agreement with Kincaid. There is proof that W.L. Williams lived in Eastland County near the Boyds and may have at one time worked for them. There is some evidence that W.L. Williams might have owned “some” mineral interest in Eastland County, but there is no proof of any recorded ownership of any minerals. We do not consider the testimony of an abstractor that sometimes an instrument might be miscopied by the county clerk’s offices as any evidence that such a mistake was made in the recordation of the mineral deed which was executed by the Boyds. There is, therefore, no evidence of any error having been made by the county clerk’s office in the discharging of its duties in recording and transcribing the deed from Sebe Boyd and wife to W.H. Williams of the undivided ¼ mineral interest. We hold, therefore, that the evidence is legally insufficient to support the jury’s verdict, and the trial court erred in not granting appellants’ motion for an instructed verdict.

The judgment of the trial court is reversed, and judgment is rendered that the cloud asserted against the title of Southeastern Resources Corporation and W.H. Williams, Jr., Joseph R. Williams, Elizabeth W. Langston and Sara Alice Stevens is removed.


author: CORNELIUS, Chief Justice.

text:
    Robert McCARTY, Appellant, v. The STATE of Texas, Appellee.
    No. 6-84-073-CR.
    Court of Appeals of Texas, Texarkana.
    March 12, 1985.
    Andrew Farkas, Dallas, for appellant.
    Tom Wells, Dist. Atty., Paris, for appel-lee.
   CORNELIUS, Chief Justice.

Robert McCarty was convicted of arson and sentenced to fifteen years confinement. The sole ground of error on appeal is that his motion for an instructed verdict of acquittal should have been granted because the State failed to prove the corpus delicti. We overrule the ground of error and affirm the conviction.

McCarty signed a confession containing the following admissions:

On Friday, 7-8-83, at approximately eight p.m. I went to my ex-wife’s house at Route 6, Paris. The house is a white brick house off farm road 906 approximately 17 miles from Paris, Texas, in Lamar County. I beat on the window on the west side of the house to unlock the window. I went inside the house and looked around and left out the front door. I went to my wife’s father’s house to kill them but decided not to and went back to my ex-wife’s house. I got a plastic bottle containing kerosene from the living room closet. I poured the kerosene on the living room floor and set it on fire. I set the house on fire to get even with my ex-wife, and I did not want another man in my house.

An extra-judicial confession alone is insufficient to support a conviction. The confession must be corroborated by evidence that a crime has been committed, i.e., the corpus delicti must be proven. To establish the corpus delicti of arson, the State must show that the house was deliberately ignited by someone. Adrian v. State, 587 S.W.2d 733 (Tex.Cr.App.1979). The State is not required, however, to negate all possible causes of the fire other than arson. Neither is the State required to corroborate the confession with direct evidence. Circumstantial evidence may be sufficient. Miller v. State, 566 S.W.2d 614 (Tex.Cr. App.1978).

In this case the State presented expert testimony that an accelerant had been poured on the living room floor of the house and that the fire was of an incendiary origin. This evidence corroborated McCarty’s statements in his confession that he poured kerosene on the living room floor and burned the house. Once sufficient evidence corroborating the corpus delicti has been shown, the State may use the confession to prove that the defendant was the person who started the fire. White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979); Self v. State, 513 S.W.2d 832 (Tex.Cr.App. 1974); Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856 (1950), on which McCarty relies, is not in point because the defendant there did not confess to the crime, and the conviction rested entirely on tenuous circumstances.

The judgment of the trial court is affirmed.


author: SPARLING, Justice.

text:
    Tony Curtis SANDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-01257-CR.
    Court of Appeals of Texas, Dallas.
    March 13, 1985.

      Fred Tinsley, Dallas, for appellant.
    Kathi Alyce Drew, Asst. Dist. Atty., Dallas, for appellee.
    Before AKIN, SPARLING and WHIT-HAM, JJ.
   SPARLING, Justice.

Tony Curtis Sanders appeals a conviction for aggravated rape in which a jury assessed punishment at 99 years imprisonment. We find no merit in any of appellant’s six grounds of error. Accordingly, we affirm.

In appellant’s first ground of error he contends that the trial court erred in denying his pre-trial motion to require the State to provide the names of witnesses it intended to present at the punishment stage of the trial. In response to the motion the State said that the law did not require its punishment witnesses’ names to be divulged before trial. The trial court agreed and overruled appellant’s motion. The State must furnish the names of punishment witnesses in response to a pre-trial motion unless the State responds that it does not know who will be called. See Young v. State, 547 S.W.2d 23, 27 (Tex. Crim.App.1977).

Although not directly on point, we find Young to be instructive. In Young, the State responded to the appellant’s pre-trial motion that it did not yet know the names of witnesses it would call during punishment. The appellant neither raised the issue again nor objected when the State presented its punishment witnesses. The Court of Criminal Appeals overruled the appellant’s ground of error, stating:

Witnesses should be disclosed if they will be used by the State at any stage in the trial. ... The State, however, did not know what punishment witnesses it would call at the time of appellant’s motion requesting this information. Appellant failed to pursue this matter at a time when the State did know what punishment witnesses it would use....

Young, 547 S.W.2d at 27 (emphasis added).

In the instant case the State responded: “Judge, I believe all the law requires us to give them is our list of witnesses in the case in chief.” The trial court mistakenly agreed. Nevertheless, nothing in Young suggests that an error by the trial court in denying this pre-trial motion would, alone, constitute reversible error. Appellant never established that the prosecutor knew what witnesses, if any, he would call at punishment, nor that appellant was harmed by not knowing the identity of the punishment witnesses at pretrial. Further, appellant had ample opportunity after his conviction but before the punishment hearing to re-urge his motion and thereby prevent any harm that might have resulted from his not having previously obtained the list of punishment witnesses. Finally, appellant did not object when the State called its witnesses at the punishment stage. See Young, 547 S.W.2d at 27. Consequently, we hold that any error by the trial court in denying the pre-trial motion was waived. Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court committed reversible error by not requiring the State to make an opening argument. TEX. CODE CRIM.PROC.ANN. art. 36.01(3) (Vernon 1981) provides that “[t]he State’s attorney shall state to the jury the nature of the accusation and the facts which are expected to be proved by the State in support thereof.” Appellant argues that the statute is mandatory and that the trial court reversibly erred in not requiring the State to make an opening statement. We disagree. In McClendon v. State, 119 Tex. Cr.R. 29, 44 S.W.2d 724, 725 (1932), the Court of Criminal Appeals interpreted an identical provision and held that the article was merely discretionary and not a ground for reversal. Further, the record here reflects that the State read the indictment to the jury, thus complying with TEX. CODE CRIM.PROC.ANN. art. 36.01(3) (Vernon 1981). Accordingly, appellant’s second ground of error is overruled.

Appellant contends in his third ground of error that the indictment is fundamentally defective in failing to allege a threat of imminent death or serious bodily injury. Appellant was charged with aggravated rape pursuant to Tex.Penal Code Ann. § 21.03(2) (1974) (repealed September 1, 1983).

The indictment alleges that appellant did unlawfully, intentionally and knowingly have sexual intercourse with [complainant], hereinafter called victim, a female not his wife without the consent of the victim and by means of force and threats the said defendant did compel the said victim to submit to the said act of sexual intercourse by acts, words and deeds that placed the said victim in fear of death and serious bodily injury; and the said defendant used and exhibited a deadly weapon to-wit: a knife, in the course of the same criminal episode. ...

Appellant argues that the failure to allege imminent harm rendered the indictment fundamentally defective. We do not agree. The indictment alleges that appellant used and exhibited a deadly weapon “to-wit: a knife” during the course of the rape. The alleged use and display of a deadly weapon in itself constitutes an allegation of the required imminent harm. Robinson v. State, 596 S.W.2d 130, 133 n. 7 (Tex.Crim. App.1980). Appellant’s third ground of error is overruled.

In his fourth ground of error appellant complains that the trial court erred in allowing the State to bolster its own witness. Appellant neither quotes or cites us to the testimony he alleges to be bolstering. However, our examination of the record reveals that the complainant identified appellant in the courtroom as the man who raped her and that over appellant’s objection she also testified she had previously identified him in a photographic lineup conducted by police shortly after the rape.

The State cannot call other witnesses to bolster the testimony of an unim-peached witness. Lyons v. State, 388 S.W.2d 950, 951 (Tex.Crim.App.1965). However, no bolstering occurs when a witness who identifies a defendant at trial also testifies that he identified the defendant in a pre-trial lineup. Wyatt v. State, 566 S.W.2d 597, 601 (Tex.Crim.App.1978); Lewis v. State, 631 S.W.2d 813, 815 (Tex.App.— Fort Worth 1982, no pet.).

The only other testimony concerning the complainant’s identification of appellant was from the police officer who conducted the photographic lineup. The officer testified only that he showed appellant’s picture, with five others, to the complainant. He did not testify that the complainant identified appellant’s photograph. This testimony, which was presented without objection, did not bolster the complainant’s earlier testimony that she identified appellant in a photographic lineup. Hastings v. State, 641 S.W.2d 332, 334 (Tex. App. — Dallas 1982, pet. ref’d). Accordingly, we overrule appellant’s fourth ground of error.

In his fifth ground of error appellant contends that his Texas and federal constitutional rights were violated by the trial court’s curtailment of his cross-examination of the complainant. The following exchange took place when appellant cross-examined the complainant:

[DEFENSE COUNSEL]: So the only people who live with you are your sisters and brothers, your mother and father? [COMPLAINANT]: Right.
[DEFENSE COUNSEL]: Now, are you married?
[COMPLAINANT]: No.
[DEFENSE COUNSEL]: Have you ever been married?
[COMPLAINANT]: Yes.
[DEFENSE COUNSEL]: Do you have any children?
[COMPLAINANT]: Yes.

The trial court sustained the State’s objection to this testimony as being irrelevant. Appellant then objected to the trial court’s ruling on the grounds that he had a right to elicit background information and that the ruling violated his right to effective confrontation of the witness as guaranteed by the United States and Texas Constitutions. Both objections were overruled and appellant did not perfect a bill of exception or offer proof to show what the excluded testimony would have been. Under such circumstances, nothing is presented for review. Passmore v. State, 617 S.W.2d 682, 685 (Tex.Crim.App.1981). Appellant’s fifth ground of error is overruled.

In Ms sixth ground of error, appellant contends that the trial judge erred by admitting, during the punishment stage of the trial, a “pen packet” which appellant claims contains “non-final convictions and extraneous offenses.” The pen packet contains a copy of a judgment of appellant’s prior conviction for unauthorized use of a vehicle, for which appellant was placed on three years’ probation. It also contains an order revoking his probation. Nothing in the pen packet describes any other extraneous offenses alleged against appellant, nor does appellant name or describe the extraneous offenses to which he refers, nor does he state why his prior conviction is not final. We conclude, therefore, that the pen packet was proper. Appellant’s sixth ground of error is overruled.

Finding no error, we affirm appellant’s conviction.

      . Tex.Code Crim.Proc. art. 642(3) (1925) (repealed 1965).


author: PER CURIAM.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Ernest PARE, et al., Appellees.
    No. 09 83 249 CV.
    Court of Appeals of Texas, Beaumont.
    March 21, 1985.
    Rehearing Denied April 9, 1985.

      Gordon R. Pate, Beaumont, for appellant.
    William T. Johnson, Beaumont, for appel-lees.
   OPINION

PER CURIAM.

This appeal results from a suit based on an automobile liability insurance policy. Default judgments were entered against Mark Melancon and Ernest Pare in a prior cause styled Doris Sztraky v. Mark Melancon, et al. Each default judgment was for $200,000.00. Doris Sztraky was the mother of Belinda Marie Sztraky, the victim killed in an automobile accident at the beach on June 7,1980. On that day Melan-con was driving the offending motor vehicle owned by Pare and with Pare’s permission. Pare had a liability policy with Allstate Insurance Company.

The Allstate policy provided, inter alia, the insured shall “immediately forward to the company every demand, notice, summons or other process received by him or his representative.” But Allstate’s policy also had an endorsement, Form 158L, reading:

“ALLSTATE INSURANCE COMPANY "A Stock Company — Home Office — Northbrook, Illinois “ENDORSEMENTS “(Texas)
“AMENDATORY ENDORSEMENT — NOTICE “Form 158L — Amendatory Endorsement — Notice “Texas Standard Automobile Endorsement “Prescribed March 1, 1973
“As respects bodily injury liability coverage and property damage liability coverage, unless the company is prejudiced by the insured’s failure to comply with the requirement, any provision of this policy requiring the insured to give notice of action, occurrence or loss, or requiring the insured to forward demands, notices, summons or other legal process, shall not bar liability under this policy.”
Appellant’s first of two points of error is:
“There was no evidence that the Plaintiffs forwarded to the insurance company the suit papers served upon them, a condition precedent to the Defendant’s [Allstate] duty to defend under the policy_” (Emphasis in original)

The proper rules of appellate review under the “no evidence” point have been followed by us. See Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.L.Rev. 361 (1960); Garwood, “The Question of Insufficient Evidence on Appeal,” 30 Tex.L.Rev. 803 (1952). We review and analyze this record with reference to Appellant’s first point of error, assiduously following the mandates of Garza v. Alviar, 395 S.W.2d 821 (Tex.1965), and In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951), as well as their legion-like progeny.

Appellant’s first point of error does not take into account the Amendatory Endorsement, Form 158L, as set out in full above. Hence, neither reversal nor remand can result from this point of error. Point one is overruled.

Appellant’s second point of error is that the jury’s answers to Special Issues Three and Six are against the great weight and preponderance of the evidence.

In deciding this point of error, being a question of fact, the reviewing court at the intermediate level must consider all the evidence. To sustain this point the evidence supporting the finding must be so weak or the evidence to the contrary must be so overwhelming that the jury’s answers must be manifestly wrong and unjust.

In Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.L. Rev. 361, 366 (1960), then Associate Justice Robert W. Calvert wrote:

“(b) A point of error asserting that a jury’s finding of the existence of a vital fact is contrary to the great weight and preponderance of the evidence means exactly what it states in very simple language. It needs no explanation. The point is an ‘insufficient evidence’ point in the sense that it asserts the insufficiency of the evidence to support a finding of the existence of a vital fact when the great preponderance of the evidence supports its non-existence.”

We also find the following at 367:

“If there is evidence of probative force tending to prove the existence of a vital fact and evidence tending to disprove its existence and the point of error is that the finding is against the great weight and preponderance of the evidence, the rule by which a Court of Civil Appeals should be guided in passing on the point is simple even if the conclusion to be reached in a particular case is difficult. If the finding of the existence of the fact, considering all of the evidence, is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust, the court should sustain the point and order a new trial; otherwise, the court should overrule the point and affirm....”

We find sufficient evidence to support the jury’s findings to Special Issues Three and Six in that the Plaintiffs’ failure to give notice of the lawsuit was not prejudicial to Allstate.

There is evidence in the record that Pare, Allstate’s insured, contacted Jay Ayers, Allstate’s sales representative, within one or two days after the death of Belinda Sztraky in June, 1980, and, thereafter, returned to discuss the accident with Ayers in either November or December of 1981 at Ayers’ office in the Sears Store. Pare told Ayers that a suit was going to be filed against Pare. Pare testified that Ayers later told him that everything in connection with the death of Belinda Sztraky had been settled. Pare verified that, in February of 1982, he again had a conversation with Ayers at his office while making a payment on his insurance policy. Again Ayers reassured him.

Pare swore that after he had notified Ayers several times and had followed Ayers’ instructions to call certain collect long distance telephone numbers to Allstate Claims Department, he trusted Allstate to take care of his business in connection with the death claim.

Geraldine Towns, Allstate’s unit claims manager, was unable to explain how Allstate was prejudiced between November 17, 1981, and the date of the first default judgment, February 3, 1982. Towns had been sent a copy of the original pleadings, although undated and unnumbered. She took no action in connection therewith. Later on, a default judgment was taken by Glen Morgan, counsel for Doris Sztraky, who notified Towns, “I’ve got a judgment.” Towns admitted that Morgan told her, “Jerri [sic], I’m surprised at you. And I said, ‘I beg your pardon?’ He said, ‘I’ve just taken default judgment.’ And he went ahead and told me and I was shocked.” Further testimony of Towns in the statement of facts reads:

“Q I ask you again. Is the substance of your testimony that you lifted not one finger to inquire one iota between the time that petition, as it turned out, was filed and the first default judgment which, I believe, — I’ll stand corrected — is February, an interroloucory [sic] judgment against Mr. Melancon?
“A No, I did not.
“Q Didn’t even make a phone call?
“A No, I didn’t.
“Q In fact, never gave it any further thought?
“A Unless you’re reading my mind, you wouldn’t know that.
“Q Who dictates what the policies of a claims adjuster will be? Do you get to make your policy up as you go or does this come from offices on high in the Allstate organization?
“A Excuse me. Allstate Insurance Company, of course, has many different areas of management and Allstate Insurance Company is the one, the home office, who dictates the practices of Allstate Insurance Company employees. This is disseminated through different managerial levels to the adjusting forces. “Q So you’re just following the procedures and policies outlined for you by the overall Allstate organization; is that correct?
“A We are also also [sic] dictated, too, —we have local, local areas, different states because different states have different laws and different areas have different practices.
“Q If handling seventy or eighty major personal injury cases renders you so busy you can’t follow up on one specific case, that’s their fault for not giving you another adjuster to share your load; is that right?
“A You’ve incorrectly stated it.
“Q How am I incorrect, please?
“A By stating that I had seventy or eighty files and did not have time. That was not ever my statement.”

The record shows that, after the filing of the lawsuit and before the taking of the default judgment, Morgan testified that he had a conversation with Towns in which they both knew and understood that there would be a settlement offer by Morgan at or below the policy limits. Morgan testified that he actually put her on notice of the lawsuit sometime in November of 1981. Subsequent to November, 1981, and prior to the taking of the first default judgment against Melancon, Morgan testified he talked with Towns, “I don’t know how many times. I know for a fact that she was in my office some time [sic] around the first of the year, 1982, and we discussed this case.”

Plaintiffs’ Exhibit No. 18, which is in evidence, is addressed to Allstate Insurance Company, “Attn: Jerri Townes [sic],” and unequivocally states, inter alia, “Enclosed please find a copy of the Original Petition filed in the above-referenced cause.”

Glaringly meaningful is Plaintiffs’ Exhibit No. 19 also admitted into evidence. It is a letter from Aetna Casualty & Surety Company, addressed to Towns, concerning Sztraky’s death action, signed by “Gerri James, Claims Representative” stating in part:

“I am in hopes that you will re-evaluate this claim upwards and make an attempt to settle this claim within your policy limits, without any further delays.
“Every effort should be made to dispose of this claim, so that our insured [Mark Melancon] will not get a judgement [sic] rendered against him and possibly an excess demand.”

Plaintiffs’ Exhibit No. 19 is dated December 9, 1981. The default judgment against Melancon was signed and entered February 5, 1982.

Morgan testified that, prior to the taking of the default judgment, Towns offered $28,000.00 to settle. Morgan swore he told Towns he wanted the jury to decide what the death of a minor child was worth. There is also testimony by Morgan that the Houston counsel for Allstate had advised that no additional money over $28,000.00 would be offered. Morgan testified that he knew of the policy limits of $50,000.00 and had offered to settle for $40,000.00, stating that the offer was made in good faith. He also testified that he had authority to settle the case within the policy limits for $40,-000.00. Morgan further testified that during the negotiations of the day of Allstate’s offer of $28,000.00 and Morgan’s counter offer of $40,000.00, Towns had knowledge that the lawsuit had been filed.

Of paramount importance is Plaintiffs’ Exhibit No. 20. It is a letter from Towns, as Senior Claim Representative, to Aetna Casualty. Because of its wording we quote it fully:

“November 19, 1981
“AETNA CASUALTY “916 Petroleum Building “Beaumont, Texas 77701 “ATTENTION: JANE WATERS
“RE: CLAIM #: 154 948268 3WGT
“YOUR INSURED: MARK MELANCON “OUR INSURED: ERNEST PARE “Needed to bring you up-to-date on the status of the remaining claim on this file.
“The mother of the deceased, BELINDA MARIE SZTRAKY, has retained Attorney, Glen W. Morgan of Beaumont
“All efforts to settle have been unfruitful as Mr. Morgan feels Mrs. Sztrakey [sic] should be compensated for the loss of companionship and affection of her daughter. Our last settlement offer was $20,000.00. Mr. Morgan has filed suit seeking $500,000.00 actual damages and $250,000.00 exemplory [sic] damages.
“I will keep you informed as events evolve.
“Cordially,
“GERRI TOWNS
“Senior Claim Representative
“GT:sj”

This letter was admitted into evidence and read before the jury. Therefore, on November 19, 1981, Towns had actual knowledge that a suit had been filed, seeking $500,000.00 in actual damages and $250,000.00 in exemplary damages.

Towns conceded that after receipt of the letter from Morgan, containing the undated Plaintiffs Original Petition, she did in fact fail to ask Morgan for a certified copy of the petition, the file number or the filing date. She further conceded that she failed to make any inquiries of either Morgan or Pare or Melancon concerning the truth or the falsity of the letter from Morgan.

Later, when asked about Form 158L, she acknowledged that it was part of Pare’s policy. After she had read into the record the first textual paragraph of Form 158L, she was asked what the meaning of that paragraph was. She replied:

“A It states as respects the B.I. and P.D. liability coverages unless the company is prejudiced by the insured’s failure to comply with their requirement any provision of the policy regarding the insured to give notice of action, occurrence or loss or requiring the insured to forward anything or other legal process shall not bar liability under this policy. I have never worked with that particular paragraph. It’s not real clear to me.”

Nevertheless, Allstate let the matter go to default against Melancon in February, 1982, and later against Pare.

Towns testified unequivocally that Allstate had all the actual notice of the accident and death itself that was required under the policy and that the accident was investigated thoroughly as a liability claim. She also stated that there was no problem with respect to the insured, Pare, having cooperated fully as well as providing any information necessary with regard to the occurrence.

The letter of December 9, 1981, Plaintiff’s Exhibit No. 19, was also read before the jury. Apparently, at least Aetna was attempting to make Mark Melancon feel as though he should say “Aetna, I’m glad I met ya!”, one of their current television advertisements. We sanguinely overrule Point two. Garza v. Alviar, supra; In re King’s Estate, supra; Calvert, “ ‘No Evidence’ and ‘Insufficient Evidence’ Points of Error,” 38 Tex.L.Rev. 361 (1960); Garwood, “The Question of Insufficient Evidence on Appeal,” 30 Tex.L.Rev. 803 (1952).

AFFIRMED.

BURGESS, J., not participating.


author: COLLEY, Justice.

text:
    K.D.B., Appellant, v. C.B.B., Appellee.
    No. 12-84-0187-CV.
    Court of Appeals of Texas, Tyler.
    March 21, 1985.
    Rehearing Denied April 25, 1985.

      Jacqueline Taylor, Houston, Charles H. Robertson, Robertson, Railsback & Shoultz, Inc., Dallas, for appellant.
    Jerry Bain, Bain, Files, Allen & Caldwell, Tyler, for appellee.
   COLLEY, Justice.

K.D.B. (wife), respondent/appellant, seeks reversal of a divorce decree rendered in a divorce suit initiated by C.B.B. (husband), petitioner/appellee. We affirm in part and reverse and remand in part.

Husband filed the suit on March 21, 1984. Wife promptly filed a written waiver of the issuance and service of process and entered her appearance in the suit on March 22,1984. The parties are parents of two sons whose present ages are five and four. Husband and wife executed an agreement incident to the divorce on May 31, 1984. Under the terms of the agreement the parties were to be appointed joint managing conservators with certain specified periods of possession. Although both parties had identical powers and duties respecting the children, the wife was to have possession of the children only on the first and third weekends of each month, and the husband was to have possession at all other times. The agreement made a division of the properties owned by the parties, both real and personal, and specified the community debts to be paid by each. The agreement provided that each party had a duty to support the children, but did not require either party to pay any sum certain during any period of time for the support of the children. On June 4, 1984, the suit was called for trial on the trial court’s uncontested calendar. Husband appeared in person and by his counsel, the Honorable George Conner. Mr. Conner had drawn the agreement and all papers filed in the suit before trial. Wife did not appear, and did not employ counsel in the suit. In the brief hearing before the trial court, the trial judge, following husband’s testimony to the effect that he was not asking the court to award “child support,” but in fact was “asking the court to not order child support,” asked husband if wife had “any income other than her salary.” Whereupon, the husband informed the court that the wife had a trust income of $6,000 per month. The trial judge then informed counsel that he was going to “order some child support.” At this point, a short recess was taken to permit Mr. Conner to confer with husband. Following the recess, the trial judge asked the husband, “What is your wife’s salary?” Husband answered, “I think it is about $600 a month over the nine months.” Without further comment from counsel, the trial judge orally pronounced, “The court approves the property settlement agreement, and grants the divorce, excepting insofar as child support is concerned. The court orders the [wife] to pay into the registry of the court for the support of the two children the sum of $1,020 per month payable ... [o]n the 15th of each month.” The decree recites that the parties entered into a written agreement respecting conservatorship and support of the children and that such agreement “is in the childrens’ best interest.” The decree expressly approves the agreement of the parties for division for their properties and incorporates such agreement into the decree. No such recitation is found in the decree respecting the agreement regarding conservatorship and support. Instead, the decree orders the wife to pay child support in accordance with the trial judge’s oral pronouncement quoted above.

Wife urges eight points of error, claiming that the trial court’s action in ordering her to pay the child support violated her due process rights as well as Section 14.-06; that the evidence is factually insufficient to support the award of child support; and since the agreement contains a provision that if the agreement is not approved by the court, “as now written,” it becomes void, the trial court abused its discretion in rendering a division of the property and determination of the conservatorship issue thereon.

We first address the wife’s claim that the procedures followed by the trial court violate the power and discretion given a trial court by the provisions of Subsection (b) of Section 14.06, TEX.FAM.CODE ANN. (Vernon 1975), which reads:

If the court finds the agreement [respecting conservatorship and support] is not in the child’s best interest, the court may request the parties to submit a revised agreement or the court may make orders for the conservatorship and support of the child.

Section 14.06 is the sole provision in the Texas Family Code addressing agreements of parties related to issues of conservatorship and support. The legislative policy established by Section 14.06(a) is clear. Amicable settlement of such issues is desired. The overall purpose of the section was obviously to promote and encourage settlement of such troublesome issues. This policy is most beneficial when the issues are presented in suits between parents of children. This is so because settlement of such disputes by parents tends to enhance the quality and stability of the continuing relationship between the estranged parents, as well as between the children and each parent. If in a trial judge’s perception, the agreement between divorcing parents for conservatorship and support of the children of the marriage “is not in the child’s best interest,” what is the judge authorized to do when he is conducting an uncontested hearing on a petition for divorce in which suit such issues have been resolved by written agreement before trial, and the petitioner is the only party present before the court? Such question calls for an interpretation of the second alternative provided by that portion of Section 14.06(b), TEX.FAM.CODE ANN. (Vernon 1975), reading, “or the court may make orders for the conservatorship and support of the child.” Applying the standards of the Code Construction Act, TEX.REV.CIV. STAT.ANN. (Vernon Supp.1985) Article 5429b-2, Sections 3.01 and 3.03, we construe the quoted provisions to mean simply that a trial judge is not bound by the agreement of the parents when he concludes that such agreement is not in a child’s best interest. This is not to say, however, that being of such a mind, the trial judge can summarily, and without affording the parties a reasonable opportunity to present evidence relevant to a proper determination of the issues, proceed in a noncontested hearing, as here, to decree that the absent spouse pay child support in a sum certain periodically contrary to the terms of the agreement. Any other construction of Subsection (b) would void the statute under Article I Section 19 of the Texas Constitution and the Due Process Clause of the U.S. Constitution. Jordan v. Jordan, 653 S.W.2d 356, 358 (Tex.App.— San Antonio 1983, no writ); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983,1994, 32 L.Ed.2d 556, 559 (1972). Wife’s points 1 and 2 are sustained.

We next address wife’s sixth point of error by which she contends that the division of property made by the trial judge must fall because it was based on the agreement which was voided under its own terms because the same was not approved by the trial court as written. No evidence was offered at the hearing below as to the character and value of the community estate of the parties. The trial judge’s division of property rests entirely on the parties’ agreement. Husband argues most eloquently that the trial judge approved the entire agreement and that the order for child support was consonant with the provisions of the agreement. Therefore, husband contends the division of property and the order that wife pay a sum certain of child support periodically rested on the subsisting agreement of the parties. Our reading of the agreement compels us to disagree with such argument. We are persuaded that the action of the trial judge in ordering the wife to pay a sum certain periodically for support of the children amounted in substance to a disapproval by the trial judge of the agreement which provided for no such child support order. Thus, we conclude that the disapproval by the trial court of the agreement “as written” voided the agreement of the wife for the division of the parties’ estate. Point 6 is sustained.

We need not address wife’s remaining points of error.

That portion of the decree divorcing the parties is severed and affirmed; otherwise, the decree is reversed and the cause is remanded for proper determination of the property, conservatorship and support issues.

      . Reported in seven pages.

      . All references to sections are to the Texas Family Code Annotated (Vernon Pham.Supp. 1985) unless otherwise indicated.

      . Professor John J. Sampson of the University of Texas School of Law interprets that portion of the statute in more colorful language to mean that the court has a "veto” power over such agreements. See John J. Sampson, “Chapter 14, Conservatorship, Possession and Support of Children.” 13 Tex.Tech.L.Rev. 927, 943 (1982).

      . See John J. Sampson, “Chapter 14, Conserva-torship, Possession and Support of Children.” 13 Tex.Tech.L.Rev. 927, 945 (1982).


text:
    Lary Joe DOUGLAS, Appellant, v. The STATE of Texas, Appellee.
    No. 6-84-068-CR.
    Court of Appeals of Texas, Texarkana.
    March 26, 1985.

      James E. Davis, Texarkana, Ark., for appellant.
    Charles M. Cobb, Charles Bialey, Mount Pleasant, for appellee.
   CORNELIUS, Chief Justice.

Lary Joe Douglas was convicted of delivery of a controlled substance by offering to sell methaqualone. Punishment was assessed at seven years in prison and a fine of $3,000.00. On appeal Douglas argues, among other things, that the conviction cannot stand because the offer to sell, as testified to by the law enforcement officers, was not corroborated by additional evidence as is required by Tex.Rev.Civ. Stat.Ann. art. 4476-15, § 1.02(8) (Vernon Supp.1985).

On April 30,1982, Douglas offered to sell 1,000 methaqualone tablets to undercover officers in Titus County. Douglas met with the officers in a parking lot on that day and actually delivered 1,000 pills which closely resembled methaqualone. He was paid $3,000.00 for the pills. In fact, the pills were not methaqualone or any other controlled substance, but only an antihistamine. In two other cases arising out of different but related events, Douglas was convicted of delivery of methaqualone and delivery of marihuana.

The Texas Controlled Substances Act provides that an offer to sell a controlled substance may constitute delivery of that substance for the purpose of constituting an offense t/the offer is corroborated by a person other than the offeree, or by evidence other than a statement of the offer-ee.

Because the pills Douglas delivered to the officers in this case contained no controlled substance and because no one other than the undercover officers (who were the offerees) heard the offer to sell, Douglas argues there was no corroboration of the offer. The State counters with the argument that the statutory requirement was met in this case, even though there was no other witness, because the counterfeit pills themselves corroborated the offer to sell methaqualone. The State relies upon Garber v. State, 671 S.W.2d 94 (Tex. App. — El Paso 1984, no pet.), in contending that evidence showing that the pills looked like methaqualone, coupled with the actual delivery of pills in the proper amount, sufficiently corroborates the offer to sell. In Garber the corroboration requirement was satisfied by proof that the defendant possessed genuine methaqualone pills. Possession of the actual drug at the time and place agreed upon was some corroboration that the defendant had made an offer of sale. But we do not have that situation in this case. Proof that Douglas possessed fake methaqualone pills at the time and place agreed upon corroborates only that he intended to defraud the officers. See Garber v. State, supra at 99. While that act could be a criminal offense, it is not delivery of a controlled substance.

The State also relies on photographs of Douglas and testimony by other officers showing him with the undercover officers at the time of the offense, but that evidence proved only that he was present, and did not in any way corroborate the offer of sale.

In view of our disposition of the first ground of error it is not necessary that we consider the other grounds of error. The judgment of the trial court is reversed and the cause is remanded for entry of a judgment of acquittal as required by Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).


author: BROOKSHIRE, Justice.

text:
    I.N.A. OF TEXAS, Appellant, v. William S. LACKEY, Appellee.
    No. 09 83 245 CV.
    Court of Appeals of Texas, Beaumont.
    March 28, 1985.
    Rehearing Denied April 18, 1985.
    Hollis Horton, Orgain, Bell & Tucker, Beaumont, for appellant.
    Greg Thompson, Walter Umphrey, Provost, Umphrey, Doyle & McPherson, Port Arthur, for appellee.
   OPINION

BROOKSHIRE, Justice.

Workers’ compensation case. Appellee sought and recovered benefits for a hernia under the workers’ compensation statute, TEX.REV CIV.STATANN. art. 8S06, sec. 12b (Vernon 1967). The jury found Lackey sustained an injury that resulted in a hernia; the hernia appeared suddenly and immediately; it did not exist before; and the hernia was accompanied by pain.

Appellant argues and advances that there is no evidence that Appellee sustained a hernia as defined by the Act or, alternatively, that the evidence is insufficient to show that Appellee suffered a com-pensable hernia. Appellant’s Motion for Directed Verdict was made on the basis that Appellee failed to show that there was a protrusion, bulging or swelling suddenly and immediately following the injury of February 3, 1982. Appellant’s attack is focused on the second element of art. 8306, sec. 12b: “That the hernia appeared suddenly and immediately following the injury.”

Appellee testified that he felt pain, a tearing pain, on February 3, 1982, and that he felt a protrusion on that same date. He swore that it felt like “something was bumping against the side of my stomach, above my belt line and protruding out.” On February 8, 1982, while working on a valve on the bottom of a tank car, he again felt great pain in his stomach. On this occasion he testified that he put his fist in the middle of his stomach and wrapped his arms around and grabbed his stomach with all the strength he had and pushed. He said he was “so relieved when this thing jumped back in.” On cross-examination he was again asked if he actually felt, on February 8, 1982, that something was sticking out. Lackey again testified that he put his hand over his stomach because it was “hurting so bad” that when he pushed it back in, he had to stand still for awhile to get strength enough to walk up the stairs and report what had happened to him.

There is other evidence of probative force on this point in the record. We find probative evidence of a protrusion on February 3, 1982. We also find ample probative evidence of a protrusion on February 8, 1982. We find, under this record, that this hernia appeared suddenly and immediately within the meaning of the statute. See Texas Employers’ Insurance Association v. Brantley, 394 S.W.2d 824 (Tex.Civ. App. — El Paso 1965, rev’d on other grounds, 402 S.W.2d 140); Great American Indemnity Company v. Gravell, 297 S.W.2d 371 (Tex.Civ.App. — San Antonio 1956, no writ).

The hernia sustained by Appellee was umbilical. We hold that, under the medical testimony in this case, a protrusion five days later would satisfy the statutory requirement of occurring “suddenly and immediately”. The medical testimony is clearly to the effect that Mr. Lackey suffered a medical umbilical hernia on February 3, 1982. Also we squarely hold that the showing of a protrusion is not a requirement in cases of umbilical hernias.

There are other interesting and, indeed, entertaining issues or questions raised by the arguments in the briefs. We have determined that they are not correctly dispos-itive of this appeal. It would be dicta to write upon them.

We affirm the judgment of the trial court.

AFFIRMED.


author: BURGESS, Justice.

text:
    Bennie Edith HAMMOND, Appellant, v. Eugene Arthur HAMMOND, Appellee.
    No. 09-84-358 CV.
    Court of Appeals of Texas, Beaumont.
    March 28, 1985.
    Rehearing Denied April 18, 1985.

      Brock Huffman, San Antonio, for appellant.
    Frederick E. Edwards, Houston, for ap-pellee.
   OPINION

BURGESS, Justice.

This is an appeal by writ of error. Eugene Hammond filed an action to dissolve his marriage to Bennie Hammond. Mrs. Hammond signed a waiver of citation, which included waiving appearance, waiving notice, waiving the making of a record and agreeing to the divorce. She also signed a property settlement agreement and she and her attorney approved the decree of divorce. On February 21, 1984, the matter was heard on the uncontested docket before a master. The decree of divorce, incorporating the property settlement agreement, was signed on March 6, 1984, by the district judge. Mrs. Hammond filed a motion for new trial on April 4, 1984, alleging there had been misrepresentations as to the value of the community estate and she had relied on these misrepresentations in agreeing to the property settlement agreement, there had been unauthorized additions to the property settlement agreement and in general, the issue of property division should be reconsidered by the court. The motion for new trial was overruled as a matter of law on May 21, 1984. A “Motion for Reconsideration of Motion for New Trial” was filed on June 5, 1984. Pursuant to that motion, the court conducted an' evidentiary hearing on the same date. Thereafter, on June 7, 1984, the court, by letter, notified the parties that “the Court has this day denied mov-ant’s Motion for a new trial.” On June 18, 1984, Mrs. Hammond requested the trial court file findings of fact and conclusions of law in regards to the “Motion for Reconsideration of the Motion for New Trial.” No findings and conclusions were ever filed.

Appellant raises three points of error. Her first point is the trial court erred in overruling the motion for new trial in that there was sufficient evidence of extrinsic fraud to support the vacating of the order incorporating the property settlement agreement. Her next point is the trial court erred in denying her a new trial where there existed proof of newly discovered evidence. The last point is the trial court’s failure to file findings of fact and conclusions of law constitutes reversible error.

Appellee initially joins the issue of the propriety of writ of error in this particular case. This must be addressed at the onset. The four elements necessary for a review by writ of error are: (1) it must be brought within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate in the actual trial either in person or by attorney and (4) error must be apparent from the face of the record. TEX.R.CIV.P. 360, Brown v. McClennan County, Etc., 627 S.W.2d 390 (Tex.1982).

Mrs. Hammond satisfied the first two elements. The landmark case on participation in the trial is Lawyers Lloyds of Texas v. Webb, 137 Tex. 107, 152 S.W.2d 1096 (1941). The pertinent language of the case, at 1097:

The actual trial of a case, as ordinarily understood by the legal profession, is the hearing in open court, leading up to the rendition of judgment, on the questions of law, if the case is disposed of on the questions of law, or on the questions of fact, if the final judgment is rendered on the facts. The statute was intended to cut off the right of appeal by writ of error of those who participate in the hearing in open court in the trial that leads to final judgment. It was not intended to cut off the right of those who discover that a judgment has been rendered against them after the judgment has been rendered, and who participate only to the extent of seeking a new trial.
There was good reason for making a distinction between those who participate in the hearing in open court, leading up to the rendition of judgment, and those who do not so participate. The statute allows a short period of time for the presentation of an appeal and a longer period for the suing out of a writ of error. Revised Civil Statutes 1925, Arts. 2253 and 2255, Vernon’s Ann.Civ.St. arts. 2253, 2255. The legislative purpose was to take away the right of appeal by writ of error from those who should reasonably use the more speedy method of appeal, (emphasis added). Those who participate in the trial leading up to the rendition of judgment are familiar with the record, and are therefore in position to prepare for appeal on short notice; whereas, those who do not so participate in the actual trial, and are therefore unfamiliar with the record. For example: One who participates in the hearing of the evidence will be familiar with the facts introduced upon the trial and can immediately begin the preparation of his appeal; whereas, one who does not so participate may have to wait until the reporter can prepare a statement of facts before he can properly prepare his appeal for presentation to the appellate court. A party who did not participate in the hearing leading up to the rendition of judgment, but merely filed a motion for new trial, would be no more familiar with the record in most instances than one who did not so file a motion' for new trial. We hold that the mere filing of a motion for new trial was not such participation in the actual trial of the ease as to defeat the plaintiffs in error’s right of appeal by writ of error.

Two courts of appeal cases are similar to the Hammond’s case and reach different conclusions. In Blankinship v. Blankinship, 572 S.W.2d 807 (Tex.Civ.App. — Houston [14th Dist.] 1978, no writ), the court held that the signing of a waiver and the signing of the judgment was “participation” to the extent to preclude review by writ of error. The court relied upon Lawyers Lloyds, supra, when it stated, at 808:

Appellant is not in the position of those who “discover that a judgment has been rendered against them after judgment has been rendered.” Appellant signed his approval of the judgment prior to an entry and we therefore presume that he read it and had knowledge of its contents prior to its entry.
Appellant here is in the category of those who “should reasonably use the more speedy method of appeal.” He was fully familiar with the findings and conclusions of the decree even prior to its entry by the trial court. Furthermore, he had waived the making of a record of the proceedings and therefore had no occasion to delay his appeal to this court pending preparation of a statement of facts, (emphasis added). The record was complete, and appellant had sufficient familiarity with the events from his participation in the proceedings to enable him to prosecute an immediate appeal if he so desired.

A different result was reached in Stubbs v. Stubbs, 654 S.W.2d 838 (Tex.App. — Dallas 1983, no writ). Here, the party seeking the writ of error had signed a waiver and a property settlement agreement which had been incorporated into the divorce decree. The court allowed appeal by writ of error, specifically disagreeing with Blankinship, supra, claiming the Blankinship court had misconstrued the rationale in Lawyers Lloyds, supra. There are other cases which speak to the issue of participation and all recognize the question of what extent of participation in the actual trial that disqualifies an appellant from review by writ of error is one of degree. Thacker v. Thacker, 496 S.W.2d 201 (Tex.Civ.App.— Amarillo 1973, writ dism’d). In Lewis v. Beaver, 588 S.W.2d 685 (Tex.Civ.App.— Houston [14th Dist.] 1979, writ ref’d n.r.e.), the court found that the approval of an agreed judgment by an attorney for a party was sufficient participation to preclude review by writ of error. There was dicta which indicated the issue of agreed judgments vis a vis judicial efficiency was strong consideration for their holding.

In the case of Mrs. Hammond, we accept the reasoning of the Blankinship court. There was absolutely nothing to preclude Mrs. Hammond from perfecting an appeal. She only had to perfect the appeal within ninety days after the judgment had been signed (this was June 4, 1984) TEX.R. CIV.P. 354, 356. She was aware there was no statement of facts available from the trial. She had ample opportunity to have a hearing on her motion for new trial. We believe she falls into that category of appellants who are excluded from using the writ of error.

There is a second reason to deny Mrs. Hammond a review by writ of error. There is no error apparent from the face of the record. The error Mrs. Hammond alleges is extrinsic fraud, but she alleges it in regards to the trial court’s failure to grant a new trial. The judgment she attempts to seek a review from is valid on its face. This situation is similar to that in Nutter v. Phares, 523 S.W.2d 292 (Tex.Civ.App.— Beaumont 1975, writ ref’d n.r.e.), wherein Justice Keith stated that an attempted appeal by writ of error is not to be used as a substitute for a bill of review, which is in the nature of a direct attack upon the judgments for defects not apparent upon the face of the judgment.

Having determined Mrs. Hammond is not entitled to bring this purported appeal in the nature of a writ of error, we do not address her assigned points of error. The appeal is dismissed.


author: REYNOLDS, Chief Justice.

text:
    Kenny Wk HO, Appellant, v. P.G. WOLFE, Appellee.
    No. 07-84-0058-CV.
    Court of Appeals of Texas, Amarillo.
    March 28, 1985.

      Gary A. Ward, McCleskey, Harriger, Brazill & Graf, Lubbock, for appellant.
    Donald M. Hunt, Carr, Evans, Fouts & Hunt, Lubbock, for appellee.
    Before REYNOLDS, C.J., and COUN-TISS and BOYD, JJ.
   REYNOLDS, Chief Justice.

P.G. Wolfe brought this action against Kenny WK Ho for payment due under a contract of sale of restaurant property and inventory entered into by Wolfe, as seller, and Ho, as purchaser. Ho appeals from a judgment, rendered after a bench trial, decreeing that he pay Wolfe $3,500 plus $1,200 in attorney’s fees. Determining that the trial court correctly rendered judgment, we affirm.

Ho and Wolfe entered into an agreement on 30 January 1981 for the sale of property and inventory of the Seven Seas restaurant, “described on Exhibit ‘A’ attached hereto and made a part hereof,” for the sum of $7,000. An Exhibit “A” was never attached to the contract, but the parties are in agreement that the property and inventory purchased was that which was located both on the restaurant premises and at Wilkerson Storage Co. Ho subsequently took possession of the restaurant and the property located therein, but he did not pay Wolfe. Wilkerson Storage attempted to deliver the items in its possession to the restaurant; however, upon discovering the absence of eleven cases of shrimp from the delivery, which Ho believed he had purchased from Wolfe, Ho refused to accept the delivery.

The evidence revealed that the shrimp, valued by Ho to be worth $300 to $350 a case, along with twelve cases of gumbo, had been removed from Wilkerson Storage by a previous manager of the restaurant prior to the execution of the contract. After a dispute arose concerning the inventory and property, Wolfe, apparently still believing and representing that the shrimp and gumbo were at Wilkerson Storage because they were listed on the 31 January 1981 storage bill, nevertheless told Ho’s banker, Marshall Vose, Jr., who Ho appointed as his agent to renegotiate the contract, that he agreed to reduce the purchase price from $7,000 to $5,000. After discussing the reduction of price with Ho, and stating that he was under the impression that Ho had agreed to accept his offer, Wolfe drafted Ho’s bank account for $5,000. However, payment of the draft was refused by Ho and Vose upon their determination that the shrimp and gumbo were no longer at Wilkerson Storage.

In its findings of fact and conclusions of law, the trial court found that Ho did not accept Wolfe’s offer to reduce the price to be paid Wolfe, and that the parties did not modify, supersede or rescind the written contract. The court further found that Ho did not receive a portion of the goods and personal property which the parties contemplated would be delivered to him, resulting in a partial failure of consideration of the reasonable value of $3,500. The court concluded that Wolfe was entitled to recover $7,000 based upon the 30 January 1981 contract less a $3,500 offset for the partial failure of consideration. The court, acting on Wolfe’s request that judicial knowledge be taken of usual and customary attorney’s fees in the cause, determined that Wolfe was entitled to a reasonable attorney’s fee of $1,200.

Ho contends in his first point of error that the contract is unenforceable because it did not include a specific description of the property or the quantity of inventory to be sold. Alternatively, Ho submits in and argues under his second point that he had a right to refuse the entire shipment from Wilkerson Storage because Wolfe failed to make a conforming tender of the delivery. In his third point Ho asserts that the trial court’s finding that the parties did not modify, supersede or rescind the 30 January contract is against the great weight and preponderance of the evidence. Last, Ho contends the trial court erred in awarding attorney’s fees to Wolfe because there is no evidence regarding the fees in the record.

It is decisive of Ho’s first point of error that since the defense of unenforce-ability because of an insufficient property description was neither raised by Ho in his pleadings nor on trial of the cause, it cannot be asserted for the first time on appeal. State of Cal. Dept, of M. Hgy. v. Bank of S.W. Nat. Ass’n, 163 Tex. 314, 354 S.W.2d 576, 581 (1962); Stewart v. Breese, 367 S.W.2d 72, 73 (Tex.Civ.App. — Dallas 1963, writ dism’d). Moreover, even if we were to reach the merits of Ho’s contention that the contract is unenforceable because it did not include specific descriptions or quantities, we would overrule the point.

Although the written contract itself did not describe the property with specificity nor provide the quantity, both parties knew, and there is no contention otherwise, that the items being sold were all of the inventory and property of the Seven Seas Restaurant located at the restaurant and Wilkerson Storage. Contemporaneous with the signing of the contract with Wolfe, Ho also executed a contract for his purchase of equipment of the same restaurant from the First National Bank of Lubbock. Ho inspected the inventory at the restaurant before signing the contracts and, rather than making an inspection of the goods in storage, he stated that he relied on Wolfe’s representations, specifically that, among other items, there were eleven cases of shrimp. A bill of sale, although whether it was ever delivered to Ho is uncertain, was executed on 10 February 1981 by South Plains Seafood, Inc. and P.G. Wolfe acknowledging the sale and delivery of “[a]ll inventory located on the premises of Seven Seas Restaurant, 1607-50th Street, Lubbock, Texas, and all inventory of Seven Seas Restaurant located at Wilkerson Cold Storage.”

Therefore, in any event, the above evidence shows there was no doubt in the minds of the parties as to the identity of the inventory and property involved, see Flow v. Friesen, 213 S.W.2d 873, 875 (Tex. Civ.App. — San Antonio 1948, writ ref d n.r. e.), and although the goods sold were not itemized, this does not make the contract unenforceable because the parol evidence and conduct of the parties removed any uncertainty as to what was purchased. Id.; Beall v. Hardwicke-Etter Company, 460 S.W.2d 516, 519 (Tex.Civ.App. — Waco 1970, writ dism’d). Point of error one is overruled.

Ho argues under his second point that he was within his rights to reject the entire delivery from Wilkerson as a nonconforming tender under section 2.601 of the Uniform Commercial Code (Vernon 1968), and therefore the judgment against him is inconsistent with section 2.601. In this connection, the Code provides that

if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may
(1) reject the whole; or
(2) accept the whole; or
(3) accept any commercial unit or units
and reject the rest.

Tex.Bus. & Com.Code Ann. § 2.601 (Vernon 1968).

Therefore, even assuming that Ho was entitled to reject the Wilkerson Storage delivery, a part of the tender of the goods sold, the evidence conclusively shows that he did take and retain possession of the tendered goods located at the restaurant. A buyer’s rejection of goods must be clear and unambiguous, Explorers Motor Home Corp. v. Aldridge, 541 S.W.2d 851, 854 (Tex.Civ.App. — Beaumont 1976, writ ref’d n.r.e.), and the determination of what actions amount to an acceptance or rejection in a particular case is generally made by the trier of fact. Wilson v. Remmel Cattle Co., Inc., 542 S.W.2d 938, 941 (Tex.Civ.App. — Amarillo 1976, writ ref’d n.r.e.); Pacific Products v. Great Western Plywood, 528 S.W.2d 286, 295 (Tex.Civ.App. — Fort Worth 1975, no writ). The receipt and retention of the goods tendered by delivery have been held sufficient to constitute an acceptance under section 2.606(a) of the Texas Business and Commerce Code Annotated (Vernon 1968). Stone v. Metro Restaurant Supply, Inc., 629 S.W.2d 254, 257 (Tex.Civ.App — Fort Worth 1982, writ ref’d n.r.e.).

The trial court found in its second finding that Ho refused to accept only “a portion” of the inventory, and in its sixth finding that Ho “did not receive a portion of the goods and personal property,” which findings remain unchallenged. Further, there is no testimony that Ho rejected the goods located at the restaurant, and there was uncontroverted testimony that Ho and Vose attempted to sell or trade some of those items. This physical possession and exercise of dominion of the goods by Ho sufficiently supports the trial court’s implied finding of a partial acceptance. See Explorers Motor Home Corp. v. Aldridge, supra at 853. Generally, a buyer must pay the contract rate for any goods accepted, Cox v. Mesa Petroleum Co., 572 S.W.2d 110,112 (Tex.Civ.App. — Amarillo 1978, writ ref’d n.r.e.), and there is no complaint that the offset of $3,500 awarded by the trial court for the partial failure of consideration is unjust or inaccurate. Point of error two is overruled.

In his third point, Ho challenges the factual sufficiency of the evidence to support the trial court’s finding of fact number five that the parties did not modify, supersede, or rescind the 30 January 1981 contract. Ho argues that the parties subsequently orally agreed to rescind the contract when Wolfe redelivered the contract to Vose, Ho’s banker and agent for the transaction, and they agreed that $5,000 would be a fair market value for the inventory. However, Vose testified that he agreed that $5,000 was a good price on the condition that the eleven cases of shrimp and twelve cases of gumbo were in storage as represented by Wolfe. Vose stated he did not authorize Wolfe to draft Ho’s bank account, and when it was determined the shrimp and gumbo were not there, the draft was returned to Wolfe unpaid. Ho did not testify to any facts evincing that a second contract was made, nor that the written agreement was rescinded. The above evidence supports the trial court’s second factual finding that Ho did not accept Wolfe’s offer to reduce the price, which unchallenged finding we are, in any event, bound to accept. Adams v. American Quarterhorse Ass’n, 583 S.W.2d 828, 833 (Tex.Civ.App. — Amarillo 1979, writ ref’d n.r.e.).

The finding that Ho rejected Wolfe’s offer to reduce the contract price vitiates his contention that the written contract was modified or rescinded. This obtains because to effect a rescission or modification there must be an acceptance of an offer therefor. Texas Gas Utilities Company v. Barrett, 460 S.W.2d 409, 414-15 (Tex.1970); Mandril v. Kasishke, 620 S.W.2d 238, 244 (Tex.Civ.App. — Amarillo 1981, writ ref’d n.r.e.). Hence, after reviewing all of the evidence we do not find that the evidence supporting the trial court’s finding that the contract was not modified or rescinded to be so weak or the evidence to the contrary so overwhelming that the finding should be set aside. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Point of error three is overruled.

Wolfe pleaded his entitlement to $1,500 as reasonable attorney’s fees in his action on the contract. On trial of the cause, Wolfe’s attorney requested, without objection by Ho, that, by the authority of article 2226, the court take judicial knowledge or notice of the work done in the file and to set whatever it considered to be a reasonable fee. No other evidence regarding attorney’s fees was presented. The court awarded Wolfe $1,200 as reasonable attorney’s fees.

The court erred in awarding attorney’s fees, Ho charges in his last point of error, because there is no evidence in the record regarding attorney’s fees. Ho does not argue that the attorney’s fees awarded by the trial court are unreasonable or excessive; rather, he contends that the trial court does not have authority to take notice of the reasonableness and amount of attorney’s fees, and that the award of fees must be based upon testimony within the record.

Although prior case law required testimony of the reasonableness of attorney’s fees, see Great American Insurance Co. v. Britton, 406 S.W.2d 901 (Tex.1966), article 2226 as amended in 1979 now provides that

where the issue of amount of attorney’s fees is submitted to the court for determination by agreement, the court may in its discretion take judicial knowledge of the usual and customary fees in such matters and of the contents of the case file without receiving further evidence.

It is clear that the legislature intended for the “judicial knowledge of the usual and customary fees ... and of the contents of the case file” to constitute some evidence on which an award of attorney’s fees may be based, accord, Coward v. Gateway Nat. Bank of Beaumont, 525 S.W.2d 857, 859 (Tex.1975); Bethel v. Butler Drilling Co., 635 S.W.2d 834, 841 (Tex.Civ.App. — Houston 1982, writ ref’d n.r.e.), as evinced by its succedent use of the phrase “without receiving further evidence.” Article 2226 (emphasis added). Thus, if, as here, the court exercises the discretion granted by the article to judicially notice the usual and customary attorney’s fees applicable to the contents of the case file, sufficient evidence exists for the court to make a determination of the amount of attorney’s fees even if no other evidence is offered. Accord, Coward v. Gateway Nat. Bank of Beaumont, supra. It follows that Ho’s no evidence complaint is unavailing. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401-02 (Tex. 1981).

Moreover, the allowance of attorney’s fees being within the sound discretion of the trial court, the judgment will not be reversed without a clear showing of abuse of discretion. Espinoza v. Victoria Bank & Trust, 572 S.W.2d 816, 828 (Tex.Civ.App. —Corpus Christi 1978, writ ref’d n.r.e.). Ho has not charged the trial court with an abuse of discretion in making the award of attorney’s fees. Point of error four is overruled.

The judgment of the trial court is affirmed.

      . Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp. 1985).

      . In submitting his contention, Ho relies on Bullock v. Foster Cathead Co., 631 S.W.2d 208 (Tex.Civ.App. — Corpus Christi 1982, no writ) and Redisco, Inc. v. Laredo Mopac Employees Credit Union, 516 S.W.2d 197 (Tex.Civ.App.— San Antonio 1974, no writ) for the proposition that the court does not have authority to adjudicate the reasonableness of attorney’s fees on judicial knowledge without the benefit of evidence. However, Bullock and Redisco involved garnishment proceedings in which article 2226 was not mentioned in addressing the issue of attorney's fees.