text:
    TAYLOR PUBLISHING COMPANY, Appellant, v. SYSTEMS MARKETING INCORPORATED, Appellee.
    No. 05-83-00664-CV.
    Court of Appeals of Texas, Dallas.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1985.

      George Lamb, III, Dallas, for appellant.
    Mark K. Glasser, Henri-Ann Nortman, Houston, for appellee.
    Before ALLEN, ROWE and SHUM-PERT, JJ.
   On Motion For Rehearing

SHUMPERT, Justice.

This appeal is from a judgment for breach of a computer lease. On original submission, in ten points of error, appellant, Taylor Publishing Co., contended that: it did not breach the lease because it was discharged from its lease obligations as a matter of law; there were neither pleadings nor evidence to support the damage award; the trial court awarded damages based on unauthorized factual findings; there was no, or insufficient, evidence to support the submission of one of the special issues; submission of certain requested special issues was improperly 'denied; a jury finding was against the great weight and preponderance of the evidence; the lease provision under which appellee, Systems Marketing, Inc. (SMI), recovered constituted an unenforceable penalty; and the requisite notice for recovery was not given.

In our original opinion we found that there was no evidence to support part of the damage award because the trial court improperly took judicial notice of the present value discount rate applicable to damages owed for future rentals. As a result, we affirmed in part and reversed and remanded that portion of the case awarding damages for the period from the time of trial until the end of the lease for an evidentiary hearing and application of the proper present value discount rate.

In its motion for rehearing appellant, Taylor Publishing Company, contends, among other things, that Rule 434 of the Texas Rules of Civil Procedure prohibits remand of only a portion of this case. Appellant argues that remand of the entire case for a new trial is fair and appropriate in light of Rule 434 and other matters raised in its motion for rehearing. In a cross point appellee, Systems Marketing Incorporated, asserts first that this court’s limited remand is fully supported by the provisions of Rule 434 and second that, in light of the context in which the discount issue arose, this court was not required to reverse and remand any portion of the trial court’s judgment.

Although we grant appellant’s motion for rehearing, we are persuaded by the authorities cited by appellee. Accordingly, we withdraw our prior opinion, dated August 9, 1984, and substitute the following in which we overrule appellant’s points of error and sustain appellee’s cross point. We affirm the trial court’s judgment in all respects except we modify the judgment by $800 because the evidence shows that the computer equipment was sold in mitigation of the damages for $10,000 rather than $10,800.

Taylor leased computer equipment from SMI. A dispute arose over a clause in the letter agreement addendum to the lease. That clause is as follows:

2. Early Termination — You shall be permitted to terminate the agreement at the conclusion of 24 months by paying a termination fee equal to $120,000 to Systems Marketing, Inc. You shall also be permitted to sublease the machine to another user for the balance of the term. However, such sublease will not relieve you of your obligations under this agreement. You shall also be permitted to terminate at the end of months without penalty for the purpose of upgrading to another system provided by SMI at terms to be negotiated, (emphasis added)

The lease was for 84 months. Approximately 44 months into the lease, Taylor decided that it wished to upgrade to different equipment. In two letters, SMI proposed terms for a new lease which included amounts expressly referred to as a penalty. Taylor responded that the lease provided for upgrade at any time without a penalty. SMI sent another letter which Taylor concedes included the penalty amount disguised as a part of the monthly rental of the new equipment although it did not contain the word penalty. Taylor then sent SMI a letter stating that because SMI refused to allow an upgrade without a penalty, Taylor considered SMI in breach of the lease, and SMI should come pick up the equipment.

Taylor contends that it should have been allowed to upgrade without a penalty at any time during the lease term after the initial twenty-four months. SMI’s position is that Taylor had only a reasonable time at the end of twenty-four months to upgrade without a penalty. Based on jury findings, stipulations, and express findings by the trial court, judgment was rendered for SMI for common law anticipatory breach of contract.

Taylor initially contends that the trial court erred in denying its motions for judgment non obstante veredicto and directed verdict because the lease provision in question permitted it to upgrade without a penalty at any time during the lease term as a matter of law, and therefore, SMI’s refusal to permit Taylor to do so constituted a breach, thereby discharging Taylor from its lease obligations. We disagree.

The phrase in question is “at the end of 24 months without penalty.” Taylor states in its brief, that “if there is anything which can be said with certainty about the meaning to be attached to the phrase ‘at the end of,’ it is that the phrase has no certain or fixed meaning.” We agree that this phrase is ambiguous. We hold that it could be construed to mean that Taylor could upgrade without a penalty within a reasonable time or at any time after the initial twenty-four months of the lease. Because the provision did not have one fixed meaning, the trial court properly admitted evidence of the circumstances surrounding the making of the contract, the intent of the parties, their understanding of the agreement, and their construction of the provision. Martin v. Davis Constructors Inc., 552 S.W.2d 873, 878 (Tex.Civ. App.—San Antonio 1977, writ ref’d n.r.e.). The jury then properly determined the ambiguous intent of the parties. Trinity Universal Insurance Co. v. Ponsford Brothers, 423 S.W.2d 571, 575 (Tex.1968); Corpus Christi National Bank v. Lowry, 662 S.W.2d 402, 405 (Tex.App.—Corpus Christi 1984, no writ). The provision did not have one meaning as a matter of law, and Taylor’s motions for judgment non obstante veredicto and directed verdict were properly denied.

Taylor next contends that there are no pleadings to support the damage award. We disagree. Pleadings are to be construed liberally in favor of the pleader. We must look to the pleader’s intendment, and the pleading will be upheld even if some element of a cause of action has not been specifically alleged. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). SMI’s pertinent pleadings were as follows:

Defendant sent to Plaintiff a letter informing Plaintiff that Defendant no longer intended to pay rent as per the terms of the Equipment Lease Agreement. ...
Defendant’s wrongful expression of intent to discontinue rental payments constitutes an anticipatory repudiation of the Equipment Lease Agreement and thus renders Defendant in default under the terms of the Lease Agreement.

We hold that SMI sufficiently pleaded the common law action of anticipatory breach of contract. See Hardin Associates Inc. v. Brummett, 613 S.W.2d 4, 6 (Tex.Civ.App. —Texarkana 1980, no writ). Further, despite its failure to specifically plead for damages for common-law anticipatory breach, SMI’s general prayer is sufficient to support an award of damages raised by the evidence and consistent with the allegations in the petition. Sherrod v. Bailey, 580 S.W.2d 24, 29 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.).

Taylor also contends that there is no, or insufficient, evidence to support the damage award. We agree that there is no evidence of the proper present value discount rate, and we agree that there is an $800 error in the judgment regarding the amount proved in mitigation of the damages. All other elements of the damages, however, were sufficiently proved.

When a party who is obligated to make future payments of money to another absolutely repudiates the obligation without just excuse, the obligee is entitled to maintain his action for damages at once for the entire breach, and is entitled in one suit to receive in damages the present value of the future payments payable to him by virtue of the contract. Universal Life & Accident Ins. Co. v. Sanders, 129 Tex. 344, 102 S.W.2d 405 (Tex.Com.App.1937, opinion adopted); Pollack v. Pollack, 39 S.W.2d 853 (Tex.Com.App.1931, holding approved), on second motion for rehearing, 46 S.W.2d 292 (Tex.Com.App.1932); Hardin, 613 S.W.2d at 6. It is undisputed that the lease was repudiated and that thirty-five months rent at $5,212 per month was not paid. It is undisputed that eighteen of the thirty-five months had passed at the time of trial. There is uncontroverted evidence that when the equipment was repossessed, it was sold for $10,000, not $10,800 as the judgment recites. When the damage components are undisputed or uncontroverted, it is unnecessary to submit a damage issue to the jury. Henshaw v. Kroenecke, 656 S.W.2d 416, 420 (Tex.1983). Consequently, the trial court was correct in calculating the rentals owed from repudiation to the time of trial and in adding six percent prejudgment interest. TEX.REV.CIV. STAT.ANN. art. 506-1.03 (Vernon Supp. 1984). We hold that the evidence is sufficient to support this portion of the damage award. We modify this part of the judgment by $800, however, to conform the judgment to the evidence.

According to our calculations, prejudgment interest on the rental payments coming due between repudiation and the time of trial was more than the $4,585 awarded by the trial court. SMI, however, does not challenge the correctness of the award by a cross point. Accordingly, we do not disturb the amount of money awarded by the trial court for prejudgment interest. Irrigation Construction Co. v. Motheral Contractors, Inc., 599 S.W.2d 336, 343 (Tex. Civ.App.—Corpus Christi 1980, no writ).

With regard to the seventeen months’ rentals due after the time of trial, there is no evidence of the proper present value discount rate. The trial judge orally stated that he took judicial notice of that rate. In Texas, however, specific evidence of the present value discount rate is not required and the trial court may determine the present value of future damages. Missouri Pacific Railroad Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283 (1960).

Taylor next contends that the trial court erred in awarding damages because its factual finding of damages was not authorized by TEX.R.CIV.P. 279. We disagree. The elements of common law anticipatory breach are:

(1) the defendant absolutely repudiated the obligation
(2) without just excuse
(3) plaintiff was damaged thereby

Hardin, 613 S.W.2d at 6. Repudiation of the obligation and the existence of damage were undisputed. It was, therefore, unnecessary to submit special issues on those elements. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex.1971); Hughett v. Dwyre, 624 S.W.2d 401, 403 (Tex.App.—Amarillo 1981, writ ref’d n.r.e.). The question then, is whether special issues two and three ask the jury for a finding on the element of “without just excuse” or whether SMI has waived recovery under common law anticipatory breach by not having submitted or requested issues on that disputed element. TEX.R.CIV.P. 279.

Those issues are as follows:

SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Systems Marketing and Taylor Publishing mutually intended their letter agreement on June 16, 1977, to permit termination for the purpose of upgrade without penalty (a) at any time following the first 24 months of their equipment lease; or (b) within a reasonable time after the 24th month of their lease agreement?
ANSWER: b.
If you have answered Special Issue No. 2 “b”, then answer Special Issue No. 3; otherwise, do not answer Special Issue No. 3.
SPECIAL ISSUE NO. 3
Do you find from a preponderance of the evidence that Taylor Publishing’s request for upgrading of the equipment, without penalty, was made within a reasonable time following the 24th month of their lease agreement?
You are instructed that “within a reasonable time” as used in the above issue means that period of time within which a reasonable person, under the same or similar circumstances as exist in this case, would have requested an upgrade of their equipment lease agreement without penalty.
ANSWER: They did not.

We hold that the submission of those issues asked the jury for a finding on the “without just excuse” element of anticipatory breach. Because upgrade without a penalty apparently would have been possible at some time, the jury finding, that Taylor was unreasonable when it did request an upgrade without a penalty, indicates that Taylor incorrectly interpreted the lease and misconstrued its legal effect in attempting to upgrade without a penalty at the time it tried to do so. It is uncontro-verted that this incorrect interpretation was the reason Taylor repudiated. Accordingly, that finding is tantamount to a finding that Taylor repudiated without just excuse. The trial judge properly rendered judgment for common law anticipatory breach because two of the elements of the cause of action were undisputed and the other was found by the jury. Because the damage components were undisputed, and only a mathematical computation was necessary to compute the damage total, no jury issue was required, Henshaw, 656 S.W.2d at 420, and the trial court properly entered a damage award.

Taylor next contends that the trial court erred in overruling its objection to special issue two and in denying submission of its first requested special issue because the evidence shows that SMI’s position at trial was that Taylor had only one day on which to upgrade the lease without a penalty, and not a reasonable time after 24 months, the alternative reflecting SMI’s position given to the jury. We disagree. The thrust of the testimony was that SMI would allow an upgrade without a penalty within a reasonable time after the first twenty-four months of the lease. Although there was some testimony which if taken out of context might indicate that SMI would have allowed an upgrade without a penalty on one day only, that testimony was qualified with the explanation that, although technically upgrade would occur at a particular time, SMI always intended to allow a reasonable time to upgrade without a penalty.

Taylor also contends that special issue number two was misleading and prejudicial. Taylor has waived these objections, however, because it failed to distinctly object to the issue on those bases. TEX. R.CIV.P. 274; Missouri-Pacific Railroad Co. v. Kimbrell, 160 Tex. 542, 334 S.W.2d 283, 285 (1960).

Taylor next argues that the trial court erred in denying submission of its requested special issues on estoppel by silence. We disagree. The principle of es-toppel by silence arises when a person is under a duty to another to speak, but refrains from doing so and thereby leads the other to act in reliance on a mistaken understanding of the facts. Storms v. Tuck, 579 S.W.2d 447, 452 (Tex.1979); A.R. Clark Investment Co. v. Green, 375 S.W.2d 425 (Tex.1964). Taylor contends that SMI did not inform it, directly prior to repudiation, that the upgrade would be with a penalty, and consequently, SMI is now estopped from asserting that position. We disagree. The evidence shows that SMI sent Taylor two letters proposing an upgrade with a penalty. Taylor responded that the lease provided for upgrade at any time without a penalty. SMI sent another letter which Taylor concedes included the penalty amount disguised as a part of the monthly rental of the new equipment although it did not contain the word penalty. Taylor then sent SMI a letter stating that because SMI refused to allow an upgrade without a penalty, Taylor considered SMI in breach of the lease, and SMI should come pick up its equipment. We hold that the mere deletion of the word penalty from SMI’s last letter does not now estop SMI from taking the position that it would only upgrade with a penalty at that time. We hold, that as a matter of law, Taylor knew that SMI was proposing an upgrade with a penalty, and therefore, Taylor did not act in reliance on a mistaken understanding of the facts (that Taylor was no longer charging a penalty). Because one element of the estoppel has been conclusively established against it, Taylor was not entitled to special issues on that defense. TEX.R.CIV.P. 279; T.A. Manning & Sons, Inc. v. Ken-Tex Oil Corp., 418 S.W.2d 324, 326 (Tex. Civ.App.—Austin 1967, writ ref’d n.r.e.).

Taylor also contends that the jury finding, that SMI did not waive its claim that the lease did not permit an upgrade without a penalty in July, 1981, was against the great weight and preponderance of the evidence. Specifically, Taylor contends that at no time prior to Taylor’s repudiation of the agreement did SMI state that the request for upgrade without a penalty was untimely. We disagree. We hold that SMI did communicate its position that Taylor’s proposal for an upgrade without a penalty was untimely, and did not intentionally relinquish or engage in intentional conduct inconsistent with claiming a known right. United States Fidelity and Guaranty Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971).

Taylor next contends that its special issues on fraud in the inducement were erroneously not submitted. We disagree. One of the elements of fraud is that a material representation must have been made. Custom Leasing, Inc. v. Texas Bank & Trust Co., 516 S.W.2d 138 (Tex. 1974). Taylor relies on a representation by the president of SMI “that SMI would permit Taylor Publishing to upgrade the computer system leased under the agreements without penalty at any time after the expiration of the first 24 months of the lease term.” There is evidence that Taylor would be able to upgrade any time after 24 months, and that Taylor could upgrade without penalty after 24 months, but no evidence that Taylor could upgrade without penalty at any time after 24 months. Accordingly, there is no evidence of anyone making the alleged misrepresentation upon which Taylor relies, and consequently, no evidence upon which to submit the fraud in the inducement issue to the jury.

Finally, Taylor contends that the trial court erred in denying its motion for judgment non obstante veredicto because the lease provision upon which SMI premised its claim for damages constitutes an unenforceable penalty and because there was no, or insufficient, evidence that the written notice, required as a condition to acceleration of the rental amounts sued for, was given. We disagree. It is immaterial whether the lease provision is’unenforceable as a penalty or whether there was conformance with the notice provisions. The trial court rendered judgment and awarded damages based on the common law action of anticipatory breach and not upon the lease provisions. Even if a contract clause is construed as an unenforceable penalty, a party may still recover its actual damages for anticipatory breach. Walter E. Heller & Company v. Allen, 412 S.W.2d 712, 719 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n.r.e.).

Appellant’s points of error are overruled and we affirm the judgment of the trial court. We modify it, however, by $800 to conform the judgment to the evidence as to the amount by which SMI was able to mitigate its damage by selling the equipment. Costs taxed four-fifths to Taylor, one-fifth to Systems Marketing Incorporated.


source: Caselaw Access Project

author: COHEN, Justice.

license: Public Domain

text:
    Charles HARRISON, Appellant, v. The STATE of Texas, Appellee.
    No. 01-83-0627-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 29, 1984.

      Catherine Greene Burnett, Janet Seymour Morrow, Houston, for appellant.
    John B. Holmes, Jr., Dist. Atty., J. Harvey Hudson, Dan Krocker, Asst. Dist. At-tys., Houston, for appellee.
    Before WARREN, LEVY and COHEN, JJ.
   OPINION

COHEN, Justice.

The appellant was convicted by a jury of aggravated rape. He pleaded true to one enhancement paragraph, and the jury assessed punishment at confinement for thirty-five years.

The first ground of error contends that the evidence, although sufficient to prove rape, was insufficient to prove aggravated rape. The indictment alleged that the appellant:

by acts, words and deeds ... did intentionally and knowingly place the Complainant in fear of serious bodily injury and death to be imminently inflicted on the Complainant.

The record shows that the complainant was an employee of the appellant, which caused them to be together at a remote rural location. The appellant made sexual advances which she refused, but the appellant persisted, finally forcing her to the ground. She testified that she screamed twice, but the appellant covered her mouth with his hand. He told her that he would “knock [her] out” and suggested that she cooperate. She testified that she feared being knocked out and thought she might die. No weapon was displayed or mentioned by the appellant at any time prior to or during the rape, although there was some discussion concerning guns after the rape as the two rode around in the appellant’s car to other locations. When they stopped for gasoline at a service station, the complainant got out of the car and refused to get back in, whereupon the appellant left and the authorities were notified.

The appellant argues that the verbal threat to “knock out” the complainant, standing alone, does not constitute sufficient evidence of aggravated rape because it is insufficient to show that she feared the imminent infliction of serious bodily injury or death.

When reviewing the sufficiency of the evidence, we view it in the light most favorable to the jury verdict in order to determine whether any rational jury could have been convinced beyond a reasonable doubt of the appellant’s guilt. Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983).

The term “serious bodily injury” is defined by statute as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex.Penal Code Ann. section 1.07(34) (Vernon 1974). The Court of Criminal Appeals has on several occasions found that serious bodily injury was caused by blows to the head. In Johnson v. State, 583 S.W.2d 399, 403 (Tex.Crim.App.1979), repeated blows to the head with a metal pipe created a substantial risk of death. In Hatfield v. State, 377 S.W.2d 647, 649 (Tex. Crim.App.1964), the defendant struck the victim in the face resulting in a cut lip and loss of teeth; and, in Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103, 105 (1924), the victim’s skull was fractured by a kick to the head. In each case, serious bodily injury resulted from a blow to the head.

Common experience indicates that a blow to the head is contemplated by one who threatens to “knock you out”. Thus, it was reasonable for the complainant, who was threatened with being knocked out, to fear that she was going to be struck in the head with sufficient force to cause her to lose consciousness. It is not unreasonable for the victim of such a threat to expect that such an attack might cause protracted loss or impairment of the function of a bodily member or organ, serious permanent disfigurement, a substantial risk of death, or even death itself. Johnson v. State, supra, Hatfield v. State, supra, Roberts v. State, supra. Thus, a rational jury could have been convinced beyond a reasonable doubt that the complainant submitted to intercourse out of a reasonable fear that she would sustain serious bodily injury if she did not submit. The first ground of error is overruled.

The third ground of error contends that the trial court erred by sustaining the State’s hearsay objection, thus refusing to allow the appellant to impeach the complainant’s testimony that she had not asked a bartender for Mandrex.

Appellant met the complainant one day before the offense at a topless bar where she was applying for a job as a waitress. Defense counsel asked the bar manager, Frank Olveda, the following:

Q: Do you know whether or not during the time she was there she had any conversation with the bartender?
A: At the time I arrived, before I arrived, I don’t know. And when I was there, not until she left.
Q: She had a conversation with the bartender when she left?
A: She asked him something.
Q: And do you know what it was she asked the bartender when she left?
A: Yes sir, I do.
Q: What was that?

The appellant then offered Olveda’s testimony that he heard the complainant ask the bartender for Mandrex, a controlled substance. The State made a hearsay objection, which the court sustained, rejecting the appellant’s argument that the testimony was not hearsay because it was offered only for impeachment, not to prove the truth of any matter asserted in the statement. The appellant suggested that the State might be entitled to a jury instruction that such testimony be considered only as impeachment, not as substantive evidence.

The State’s sole trial objection was that Olveda’s testimony was hearsay. The testimony was not hearsay because it was not an out of court statement offered in evidence to prove the truth of the matter asserted in the statement. The complainant’s. alleged statement concerning Man-drex was not an assertion of fact at all, but merely a question. Such evidence is not hearsay. Girard v. State, 631 S.W.2d 162 (Tex.Crim.App.1982); Compton v. State, 607 S.W.2d 246 (Tex.Crim.App.1979); Nixon v. State, 587 S.W.2d 709 (Tex.Crim.App. 1979); See and compare Tex.R.Evid. 801(c), (d), (e)(2)(A); Fed.R.Evid. 801(c), (d)(2)(A). Therefore, the State’s hearsay objection was without merit and should have been overruled.

The State argues on appeal that the evidence was properly excluded, not as hearsay, but because it only involved a collateral matter, and the right to impeach the credibility of a witness does not extend to such collateral matters.

The appellant testified that the complainant consented to intercourse for pay with him the day after they met at Olveda’s bar, while she was under the influence of marijuana, and then, when the appellant did not pay, she falsely claimed rape because she was afraid to return to her violent boyfriend without drug money.

Frank Olveda testified that the complainant was “high” and staggering when she applied for work, although she did not appear to have been intoxicated from alcohol use. Olveda refused her application because he thought it was unsafe for her to work in that condition. There was testimony that her “old man”, with whom she lived, was “a doper”. The appellant testified that, on the day of the offense, the complainant had initially said that she could not work because she and her boyfriend had been “loaded” the night before, but that she needed money because her boyfriend had used all their money for drugs.

Great latitude should be allowed the accused to show a witness’s motive to falsify his testimony; however, trial courts have considerable discretion as to how and when such a motive may be proved and as to what collateral evidence is material for that purpose. Cloud v. State, 567 S.W.2d 801, 802 (Tex.Crim.App.1978). The extent to which a witness may be cross-examined for the purpose of showing bias on a collateral matter rests in the sound discretion of the trial judge, who must balance the probative value of the evidence sought to be introduced against the risk its admission may entail. The potential risks include: 1) the possibility of undue prejudice, embarrassment or harassment to either a witness or a party; 2) the possibility of misleading or confusing a jury; and 3) the possibility of undue delay or waste of time. Cloud v. State, supra at 802-03. The same factors control this case, although the issue is the scope of direct examination, not cross-examination. Koehler v. State, 679 S.W.2d 6, 9-10 (Tex.Crim.App.1984); Jackson v. State, 482 S.W.2d 864, 867 (Tex.Crim.App. 1972).

Professor Ray, in his treatise, Texas Law of Evidence, sections 683-84, (West 1980), has stated:

The chief reasons for excluding contradiction on collateral matters are reasons of policy. First, too great an inconvenience would result if every alleged error could be investigated. Much time would be wasted and the issues confused. Second, it would be unfair to the witness to expect him to come prepared to meet any error that might be alleged, although entirely beyond matters in litigation.
Although the rule that error on collateral matters may not be shown is well established, the rule itself marks out no definite line of exclusion. The difficult question is left unanswered. What matters are collateral and what are not? Only one satisfactory test appears to have been devised.... In Professor Wigmore’s words it is: “Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?” ... The test is simple, definite and easy of application, yet, despite this, it has been accepted by very few jurisdictions in this country. The Texas courts appear to have no definite guide. They employ such terms as irrelevant, collateral and immaterial, and let the decision hinge on the particular circumstances of each case. So much depends on the individual opinion of the judges that about all it is possible to do here is to illustrate by specific instances some of the matters which have been held collateral and some which have not. The hope is expressed that some definite test of collateralness will soon be adopted with its application left largely to the discretion of the trial court.

The appellant relies on Harris v. State, 642 S.W.2d 471 (Tex.Crim.App.1982), and Thomas v. State, 669 S.W.2d 420 (Tex.App.—Houston [1st Dist.] 1984, pets, ref d). In Harris, a death penalty case, the defense was not allowed to cross-examine a juvenile accomplice witness to show that she was accused of the same offense for which the defendant was on trial. In Thomas, a rape of a child case, the victim denied having made false accusations of rape allegedly occurring at the same time period as the offense on trial, and the defense was not allowed to question her mother, aunt, cousin and neighbor to show that she had made false rape accusations previously. The errors in both Harris and Thomas required reversal. The type of evidence excluded in those cases was not collateral, however; it had a direct bearing on the events for which the defendant was on trial and on the complainant’s credibility concerning them.

Authorities supporting the State include Driehs v. State, 301 S.W.2d 123, 124 (Tex.Crim.App.1957) and Speck v. State, 148 Tex.Cr.R. 443, 188 S.W.2d 184, 185 (1945), both of which were reversed because the State was wrongly permitted to impeach defense witnesses on collateral matters. In Driehs, supra, a driving while intoxicated prosecution, police testified that the defendant resisted arrest, which the defendant denied. The State was allowed, over objection, to cross-examine him concerning whether he had resisted arrest during a prior arrest. When he denied this, the arresting officer on the prior offense testified that Driehs had resisted at that time. The Court rejected the claim that the evidence was admissible as impeachment. It stated:

In order to agree with such contention, it would be necessary to hold that the details of the prior offense were material in the present trial. We do not so conclude. The general rule is ... as follows: impeaching a material witness on an immaterial matter is reversible error, because, by discrediting the witness and showing the jury that upon a immaterial issue he had testified falsely, it is calculated to make the jury believe that he may have testified falsely in regard to other matters which were material. (emphasis supplied)

In Driehs, unlike the case at bar, the defendant objected when the State raised the collateral matter. More importantly, unlike the Driehs case, Olveda’s testimony did not involve any prior offense.

Similarly, in Speck v. State, supra, a driving while intoxicated case, a defense witness testified that neither she nor the defendant was drinking or drunk. On cross-examination, she was asked if she had told a prosecutor that she and the defendant had been drinking. She denied any such statement, whereupon the prosecutor testified that the witness had stated that she, not the defendant, had been drinking. The Court held that whether the defense witness was intoxicated during the offense was irrelevant to whether the defendant, Speck, was intoxicated. The Court stated:

For purposes of impeachment, anything she might have said about appellant’s intoxicated condition at the time of his arrest might have become admissible for a limited purpose, but anything relative to Miss Lane’s drinking could hardly be binding on appellant, nor have any probative force relative to his intoxicated condition....
Such testimony might have been admissible herein as an impeachment of her had the Assistant County Attorney testified that she had told him that appellant was drunk, or had been drinking, but it is to be noticed that her statement to the officer merely said that she, the witness, had been drinking, and the drinking of Ms. Lane, being an entirely collateral matter, was not admissible against appellant as a matter of impeachment. (emphasis supplied)

Applying the test advocated by Professors Wigmore and Ray, we conclude that the fact that the complainant was seeking a Mandrex tablet could have been shown independently of the contradiction. Olveda testified before the jury that the complainant was in an impaired condition, possibly due to drug intoxication, when she met the appellant on the day before the crime. The appellant testified to the complainant’s statement that she was so “loaded” the night before the offense that she was unable to work the next day and to her marijuana use just prior to the intercourse. The appellant testified that she consented to intercourse while intoxicated following the use of marijuana and did so in order to earn money to purchase drugs. Such testimony showed the complainant’s mental and physical condition on the day and night immediately preceding the offense and on the day of the offense. The testimony indicated that she was in a possibly continuous state of drug intoxication over a two day period during which time she was seeking money to buy more drugs. Olveda’s testimony that she was asking for Mandrex one day earlier, at the same time she met the appellant, thus significantly supported other defense testimony. It indicated that she was a drug user who was in need of and was seeking both drugs and money shortly before the intercourse occurred. If believed, this established a motive for her to have consented, the same motive claimed by the appellant.

In Wallace v. State, 679 S.W.2d 1 (Tex. Crim.App.1983), opinion on rehearing, October 31, 1984, the court held:

“Because it is relevant as a circumstance tending to prove the commission of the offense, evidence may always be introduced by the State which ‘fairly tends to raise an inference in favor of the existence of a motive on the part of the accused to commit the alleged offense.’ Porter v. State, 623 S.W.2d 374, 386 (Tex.Crim.App.1981).”

If the State can always show motive because it tends to prove the commission of the offense, the appellant should have been allowed to use Olveda’s excluded testimony which tended to prove the complainant’s motive to consent to intercourse.

Under these circumstances, we believe the evidence was more probative than that in Speck because it was part of a direct and continuous chain of evidence indicating the victim’s use of drugs and need for money shortly before the crime. It furnished a motive for her to prostitute herself, i.e., the need to obtain drugs. It showed a fact which, if believed, would have strengthened the defense claim of consent. The appellant was entitled to try to prove that the victim’s condition on the day and night before the crime and on the day of the crime was that of continual intoxication which could, as claimed by defense testimony, have influenced her judgment in consenting to an act of sexual intercourse. The jury should not have been deprived of this relevant information. It should have been allowed to hear Olveda’s testimony and decide whether he or the complainant was worthy of belief. This testimony, if believed by the jury, would have placed the victim in her proper perspective, influenced the jury’s impression of her credibility, which was the most vital issue in the case, and strengthened the appellant’s defensive theory.

We further conclude that Olveda’s excluded testimony was admissible for impeachment, even if it was not otherwise admissible. The policy reasons for limiting impeachment on collateral matters suggested in Cloud v. State, and by Professor Ray are not present here. The first reason was to avoid wasting time or confusing the jury. Nothing indicates that the excluded testimony would have caused undue delay or confused the jury. Olveda’s testimony before the jury occupies only 18 pages of a 588 page statement of facts. The entire description of the excluded testimony made when it was offered was that “during the time she was there, he heard her ask the bartender for Mandrex.” This does not indicate that an area was being opened up that would have created undue delay. The evidence would have created a conflict in the evidence, but nothing indicates this would have mislead or confused the jury. Juries are well equipped to resolve conflicts in the evidence. Indeed, that is their purpose.

It is true, as Professor Ray has stated, that “it would be unfair to the witness to expect him to come prepared to meet any error that might be alleged, although entirely beyond matters in litigation”; however, Olveda’s testimony was not entirely beyond the matters in litigation. It was directly linked to the initial meeting of the appellant and the complainant, one day before the offense, and concerned the same condition of drug use which defense testimony indicated continued until the day of the offense.

Finally, the question excluded was directed to Olveda, not to the complainant; therefore, it would not have caused her any undue harassment or prejudice. Olveda’s excluded testimony referred to the same events brought out without objection by the State and the appellant. If believed by the jury, it showed that the State’s one essential witness had erred or lied under oath. The probative value of such evidence was potentially great, and the risks described in Cloud v. State and by Professor Ray were either insignificant or non-existent.

Impeachment testimony like Olve-da’s should have been admitted in order to expose before the jury allegedly perjured or erroneous testimony. It was the jury’s special task to decide which was true, the complainant’s testimony or Olveda’s. The need to expose perjury is so important that even evidence obtained in violation of the United States Constitution may be used for this purpose. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). In Walder, the Court allowed a defense witness to be impeached on a clearly collateral issue in order to expose what the government claimed was perjury. This parallels the instant case, except that the argument for admission here is stronger than in Walder because Olveda’s testimony was not illegally obtained, did not reveal extraneous crimes, and was more closely related to the offense on trial. If, as held in Wald-er and Harris, even the U.S. Constitution provides no shield for alleged perjury by defense witnesses, then the court-made rule against collateral impeachment should not provide any greater protection for alleged perjury by government witnesses.

Ground of error three is sustained.

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


author: STOREY, Justice.

text:
    DALLAS BANK AND TRUST COMPANY, Appellant, v. COMMONWEALTH DEVELOPMENT CORPORATION, American Industries Investments, Inc., and Forty-Five Fifteen Corporation, Appellees.
    No. 05-83-00930-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 3, 1984.
    Rehearing Denied Feb. 27, 1985.

      Steven L. Page, Witts & Wilson, Dallas, for appellant.
    Nancy A. Thomas, Winstead, McGuire, Sechrest & Minick, John A. Price, Alan H. Cooper, Kasmir, Willingham & Krage, Dallas, for appellees.
    Before STOREY, STEWART and SHUM-PERT, JJ.
   STOREY, Justice.

This appeal arises from an interpleader action filed by Dallas Bank and Trust Company against the beneficiary of its letter of credit and its customers (the account parties) for whom the letter of credit was issued. The beneficiary, Commonwealth Mortgage Corporation (successor to United Financial Corporation, the named beneficiary), recovered summary judgment in the interpleader action for the full amount of the funds tendered. After severance of the summary judgment, the account parties, American Industries Investments, Inc., and Forty-Five Fifteen Corporation, were granted declaratory judgment absolving them from all liability to Dallas Bank, Dallas Bank’s appeals of both judgments are consolidated in this appeal. The bank contends that the summary judgment in favor of Commonwealth was error and, alternatively, that the declaratory judgment in favor of the account parties was error. We affirm.

On December 22, 1981, Dallas Bank issued its letter of credit in the following terms:

December 22, 1981
IRREVOCABLE LETTER OF CREDIT NO. 1132
United Financial Mortgage Corporation 421 E. Airport Freeway Irving, TX 75062
Re: American Industries Investments, Inc.
(Regency Condominiums)
Gentlemen:
We hereby establish our Irrevocable Letter of Credit No. 1132 in your favor, for account of American Industries Investments, Inc. for Eight Hundred Thousand and no/100 Dollars ($800,000.00) available by your draft at sight on Dallas Bank and Trust Company. Ten days notice that American Industries Investments, Inc. is at default, on the project known as “Regency Condominiums,” as determined by United Financial and/or its assigns is also required.
A draft drawn under this Letter of Credit must be marked: “Drawn under Dallas Bank and Trust Company Credit No. 1132.” The amount of the draft must be endorsed on reverse hereof by negotiating bank.
This Letter of Credit is effective as of this date, and will expire on December 22, 1982.
DALLAS BANK AND TRUST COMPANY
By: /s/ W.A. Lanfer, Sr. Vice-President

The letter was issued to assure performance of a construction contract known as “Regency Condominiums.” On December 22, 1982, Dallas Bank issued the following amendment:

December 22, 1982
United Financial Mortgage Corporation 421 E. Airport Freeway Irving, TX 75062
RE: American Industries Investments, Inc.
(Regency Condominiums)
Dallas Bank and Trust Company L/C # 1132
Gentlemen:
Please amend our L/C 1132 in your company’s favor for the account of our customer, Forty-Five Fifteen Corp. as follows:
Amend this L/C for a period of one year to expire on December 22, 1983.
All other terms and conditions remain the same.
Very truly yours,
/s/ N.L. Lester President

By letter dated March 31, 1983, Commonwealth notified Dallas Bank that American Industries was in default and that it intended to draft on the letter after ten days. On April 11, 1983, American Industries directed Dallas Bank not to honor any drafts on the letter, citing as its reasons that the letter had expired, the demand documents were non-conforming, it was not in default, and the demand was excessive. On the same day, Commonwealth presented its draft on the letter for $137,378.49. Dallas Bank neither honored nor gave notice of dishonor of the draft. Instead, on April 12, within the three-day dishonor period, TEX. BUS. & COM.CODE ANN. 5.112(a)(1) (Vernon-1968), it filed its original petition in interpleader, joining Commonwealth, American Industries, and Forty-Five Fifteen as defendants.

Dallas Bank’s petition asserted that: (1) the letter of credit had been issued in favor of Commonwealth; (2) a demand and an instruction to dishonor had been received; (3) it was unable to decide the validity of conflicting claims and was an innocent stakeholder subject to double liability; (4) it was unconditionally tendering the fund into court; (5) it claimed no interest in the fund; (6) it was not indemnified by any defendant; and (7) the fund be paid to the prevailing defendant after payment of its costs and attorney’s fees.

Commonwealth filed its answer and counterclaim on April 19 and on the same day filed a motion for summary judgment. After the motion was filed, American Industries and Forty-Five Fifteen answered the interpleader action and disclaimed any interest in the fund. Summary judgment was granted Gommonwealth on May 13, and the action between it and Dallas Bank was severed. American Industries and Forty-Five Fifteen then filed a counterclaim against Dallas Bank for a declaratory judgment establishing that they were not in default and were not liable to reimburse the bank for any amount paid by it to Commonwealth. Declaratory judgment was granted in their favor against Dallas Bank, and the bank has appealed both judgments.

INTERPLEADER

Although every reasonable doubt should be resolved in favor of the putative stakeholder’s right to interplead, Citizens National Bank of Emporia v. Socony Mobil Oil Co., 372 S.W.2d 718, 722 (Tex.Civ. App.—Amarillo 1963, writ ref’d n.r.e.), we hold that the bank’s petition did not allege proper grounds for interpleader relief. See Danner v. Aetna Life Insurance Co., 496 S.W.2d 950, 953 (Tex.Civ.App.—Fort Worth 1973, no writ); Hayes v. Norman, 383 S.W.2d 477, 478 (Tex.Civ.App. —Corpus Christi 1964, writ ref’d n.r.e.). The purpose of the interpleader procedure is to relieve an innocent stakeholder of the vexa tion and expense of multiple litigation and the risk of multiple liability. 1 R. MCDONALD TEXAS CIVIL PRACTICE 3.38 (rev. 1981). Interpleader is appropriate, therefore, only when the stakeholder is or may be exposed to multiple liability. TEX. R.CIV.P. 43; Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926, 930 (1962); Frazier v. Wynn, 492 S.W.2d 54, 58 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.); Gillespie v. Citizens National Bank of Weatherford, 97 S.W.2d 310, 313 (Tex.Civ.App.—Texarkana 1936, no writ). Because of the unique nature of the letter of credit, Dallas Bank never was in danger of suffering multiple liability.

A letter of credit transaction involves three separate and independent undertakings: one between the issuer and the beneficiary, one between the issuer and its account party, and, finally, the underlying obligation between the account party and the beneficiary. No party to one contract is responsible for performance of the obligations of another contract. See Republic National Bank v. Northwest National Bank, 578 S.W.2d 109 (Tex.1978). Thus, Dallas Bank had no duty to inquire whether American Industries was in fact in default because the letter required only that Commonwealth notify Dallas Bank that in its judgment American was in default. The letter of credit was strictly an undertaking between Dallas Bank and Commonwealth. If Commonwealth’s demand complied with the terms and conditions of the letter of credit, Dallas Bank was obligated to honor the draft without reference to the obligations of the parties to the underlying transaction. TEX.BUS. & COM.CODE ANN. 5.114(a) (Vernon 1968); Republic National Bank, 578 S.W.2d at 112. If, on the other hand, the draft did not conform to the letter of credit, Dallas Bank was entitled to dishonor it. TEX.BUS. & COM. CODE ANN. 5.114(b) (Vernon Supp.1984). Furthermore, “an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the documents....” TEX.BUS. & COM.CODE ANN. 5.114(b)(2) (Vernon Supp.1984). American Industries and Forty-Five Fifteen were not parties to the letter of credit and could not affect the bank’s decision to honor or dishonor except by seeking an injunction. See TEX.BUS. & COM.CODE ANN. 5.114(b)(2) (Vernon Supp.1984). Thus, Dallas Bank was obligated to honor or dishonor, and, although wrongful dishonor could have subjected it to liability to Commonwealth, TEX.BUS. & COM.CODE ANN. 5.115 (Vernon 1968), neither course of action could have subjected it to liability to American or Forty-Five Fifteen. In fact, both corporations disclaimed any interest in the interpleaded funds. The risk that payment of the draft might have left the bank without a right of reimbursement against the account parties was not the kind of exposure to multiple liability that would justify interpleader relief.

Despite our holding that inter-pleader was improper, the court properly adjudicated the issues between the parties. TEX.R.CIV.P. 43 expressly states that its provisions “supplement and do not in any way limit the joinder of parties permitted in other rules.” TEX.R.CIV.P. 47, 51 permitted Dallas Bank’s joinder of claims. Accordingly, all parties were properly before the trial court, the court had jurisdiction to adjudicate the dispute, and, on appeal, we will treat the purported interpleader petition as a request for a declaratory judgment pursuant to TEX.REV.CIV.STAT. ANN. art. 2524-1 (Vernon 1965 & Vernon Supp.1984). See Northshore Bank v. Commercial Credit Corp., 668 S.W.2d 787, 789 (Tex.App.—Houston [14 Dist.] 1984, writ ref’d n.r.e.); Davis v. East Texas Savings & Loan Association, 163 Tex. 361, 354 S.W.2d 926, 932 (1962). Further, because the bank unconditionally tendered the fund into court, we will, nevertheless, treat the fund as subject to disposition by the judgment.

SUMMARY JUDGMENT

Dallas Bank attacks the summary judgment on several grounds. It contends that there were issues of fact, that the grant of judgment on the pleadings without supporting affidavit was error, that the motion was untimely filed, and that it was denied the right to replead. It also attacks the court’s action in severing the Dallas Bank — Commonwealth action from the remaining action and complains of the relief granted Commonwealth in the final judgment.

Commonwealth filed its answer and counterclaim and motion for summary judgment in each of which it admitted the material allegations of Dallas Bank’s petition and asserted its exclusive right to the fund. American Industries and Forty-Five Fifteen answered, disclaiming any right to the fund; consequently, they did not respond to the motion for summary judgment. Neither Commonwealth’s motion nor Dallas Bank’s response was accompanied by supporting affidavits. The motion was granted on the pleadings.

Commonwealth argues that judgment on the pleadings was proper, and that, after award of the fund, it was properly severed and dismissed. Commonwealth further urges on appeal that by making an unconditional tender of the fund into the court, disclaiming any interest in it and praying the court to make proper disposition, Dallas Bank received the relief prayed for and, therefore, is estopped to complain of the court’s action. This contention is supported by authority. Northeast Texas Motor Lines, Inc. v. Hodges, 138 Tex. 280, 158 S.W.2d 487 (1942); Whitehead v. Traders & General Insurance Co., 128 S.W.2d 429 (Tex.Civ.App.—Amarillo 1939, no writ). We are persuaded, however, that, independent of this conclusion, the trial court properly granted summary judgment.

Commonwealth argues that by refusing to dishonor its draft and, instead, making an unconditional tender and disclaimer of the funds, the bank’s action was tantamount to an honor of the draft. Commonwealth further urges that Dallas Bank’s pleadings amounted to judicial admissions which entitled it to judgment as a matter of law. While not disagreeing with Commonwealth’s first contention, we base our holding on the second, namely, that the pleadings of all parties before the court demonstrate that Commonwealth was entitled to summary judgment as a matter of law.

Whether we consider the allegations of Dallas Bank’s petition as judicial admissions of material fact or as statements of applicable law, it is clear that those allegations established that Commonwealth was entitled to the relief it sought as a matter of law. The pleadings established that Commonwealth had a valid claim to the proceeds of its draft. Dallas Bank admitted in its pleading that it claimed no interest in the fund, that it “issued in Defendant Commonwealth’s favor a letter of credit, ...” and that Commonwealth “made demand upon Plaintiff by draft pursuant to the letter of credit, in the amount of ONE HUNDRED THIRTY-SEVEN THOUSAND THREE HUNDRED SEVENTY-EIGHT DOLLARS AND FORTY-NINE CENTS ($137,378.49).” Thus, Dallas Bank effectively admitted that Commonwealth made a timely demand or draft that complied with the terms of the letter of credit, obligating Dallas Bank to honor the demand. See TEX.BUS. & COM.CODE § 5.114(a) (Vernon 1968).

Although Dallas Bank filed a First Amended Petition in Interpleader alleging that the letters of credit were issued in favor of United Financial Mortgage Corporation and that Commonwealth did not present documents showing entitlement to the fund, that petition was filed without leave of court and over Commonwealth’s objection within seven days of the hearing and, hence, was untimely. TEX.R.CIV.P. 63. Accordingly, we cannot consider it for any purpose. See Claude Regis Vargo Enterprises, Inc. v. Bacarisse, 578 S.W.2d 524, 529 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.); Mainland Savings Association v. Wilson, 545 S.W.2d 491, 493 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ).

The pleadings also establish that Dallas Bank claimed no interest in the fund which it unconditionally tendered into court. By their pleadings, the remaining defendants disclaimed all interest. This set of circumstances left Commonwealth as the only party at interest asserting a claim to the fund. Since only one claimant prayed for and proved a right to the fund, the court correctly granted its request. See Northskore Bank, 668 S.W.2d at 789-90.

We recognize that, as a general rule, pleadings do not constitute summary judgment proof. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979); Wells Fargo Construction Co. v. Bank of Woodlake, 645 S.W.2d 913, 915 (Tex.App.—Tyler 1983, no writ); Kehoe v. Lambert, 633 S.W.2d 576, 578 (Tex.App.— Houston [14th Dist.] 1982, writ ref'd n.r.e.). If, however, a plaintiff pleads facts which affirmatively negate a cause of action, summary judgment is proper. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974); Stiver v. Texas Instruments, Inc., 615 S.W.2d 839, 843 (Tex.Civ.App.—Houston [1st Dist. 1981, no writ); Bowen v. Calallen Independent School District, 603 S.W.2d 229, 231 (Tex.Civ.App.—Corpus Christi 1980, writ ref’d n.r.e.). Dallas Bank’s allegations in its pleadings are clear and unequivocal and, accordingly, constitute judicial admissions, requiring no proof of admitted facts and disallowing the introduction of contradictory evidence. The judicial admissions negate Dallas Bank’s cause of action and authorize summary judgment. Mendoza v. Fidelity & Guaranty Insurance Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980); Davis v. Quality Pest Control, 641 S.W.2d 324, 329 (Tex.App.— Houston [14th Dist.] 1982, writ ref’d n.r.e.); Flintkote Supply Co. v. Thompson, 607 S.W.2d 41, 43 (Tex.Civ.App.—Beaumont 1980, no writ); Houchins v. Scheltz, 590 S.W.2d 745, 750 (Tex.Civ.App.— Houston [14th Dist.] 1979, no writ).

Dallas Bank additionally challenges the timeliness of Commonwealth’s motion for summary judgment. TEX.R. CIV.P. 166-A(a) provides that “A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move ... for summary judgment.” Because the motion was filed before American and Forty-Five Fifteen answered the purported interpleader, Dallas Bank argues that it was not timely. We disagree. First, the interpleader was improper, and neither American nor Forty-Five Fifteen was an adverse party with respect to Commonwealth’s motion for summary judgment. Secondly, Dallas Bank has no standing to complain that the motion was premature with respect to the other parties because any error in that respect could not have affected it adversely. Shell Petroleum Corp. v. Grays, 131 Tex. 515, 114 S.W.2d 869, 870 (1938); CNL Financial Corporation v. Hewlett, 539 S.W.2d 176, 178 (Tex.Civ.App.—Beaumont 1976, writ ref’d n.r.e.). See Northshore Bank v. Commercial Credit Corp., 668 S.W.2d 787 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).

Dallas Bank further contends that the final judgment was not supported by the pleadings and, accordingly, was void. See TEX.R.CIV.P. 301; Ex parte Fleming, 532 S.W.2d 122, 123 (Tex.Civ.App.— Dallas 1975, no writ); Douthit v. Anderson, 521 S.W.2d 127, 129 (Tex.Civ.App.—Dallas 1975, no writ). Specifically, the bank contends that since the judgment dismissed the “Interpleader action and all claims asserted by Dallas Bank against Commonwealth” and Commonwealth’s counterclaim, no affirmative pleadings on which to base a judgment were pending before the court. We disagree. Commonwealth, in answer to the interpleader petition, asserted its right to the funds deposited in the custody of the court. In its counterclaim, Commonwealth asserted, alternatively, that Dallas Bank’s actions constituted dishonor of the draft and, accordingly, that, under TEX.BUS. & COM.CODE ANN. § 5.112(a), it was entitled to $800,000.00, the entire amount of the credit. Thus, Commonwealth’s motion for summary judgment requesting, among other things, an award of the “monies tendered into the Registry of the Court” was supported by an affirmative pleading.

Dallas Bank further contends that the court erred by (1) awarding the fund before a hearing on the propriety of the interpleader; (2) dismissing its petition in interpleader; (3) failing to grant it a discharge against all parties upon disposition of the fund; and (4) overruling its Motion to Vacate or For Rehearing. We disagree. Although an interpleader ordinarily involves a preliminary action between the plaintiff and the defendants to determine whether the defendants should answer, see Grand Lodge Colored K.P. of Texas v. Cleo Lodge No. 222, Colored K.P., 189 S.W. 764 (Tex.Civ.App.—San Antonio 1916, no writ), Dallas Bank did not object to the trial court’s hearing the summary judgment and, accordingly, cannot complain of any error in this regard on appeal. See Zachary v. Overton, 157 S.W.2d 405, 407 (Tex.Civ.App.—Galveston 1941, writ ref'd w.o.m.); Smith & Sholars v. Fowler, 57 Tex.Civ.App. 356, 122 S.W. 598 (1909, no writ). Furthermore, since the interpleader was improper for the reasons already stated, the court did not err by failing to discharge Dallas Bank or by dismissing the petition in interpleader. Finally, Dallas Bank’s contention that the court erred by overruling its post-judgment motion was not supported on appeal by argument or authorities and, accordingly, was waived. Dacus v. Grimes, 624 S.W.2d 298, 300 (Tex. App.—Tyler 1981, no writ); Arrechea v. Arrechea, 609 S.W.2d 852, 855 (Tex.Civ. App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.).

Dallas Bank additionally challenges the severance of the dispute between it and Commonwealth from the controversy between it and American and Forty-Five Fifteen. Dallas Bank asserts that, as adverse claimants, American and Forty-Five Fifteen were necessary parties to the interpleader whose claims were not resolved by the summary judgment. Thus, the severance, according to Dallas Bank, subjected it to inconsistent judgments, a result the inter-pleader procedure was designed to avert.

We do not agree with Dallas Bank’s reasoning because the case was not a true interpleader. Dallas Bank’s contractual agreement with Commonwealth was separate and distinct from the bank’s underlying agreements with the account parties, and its liability to Commonwealth was independent of any right to reimbursement against them. Thus, the controversy involved more than one cause of action, the severed cause properly could have been resolved in an independent lawsuit, and the cases do not involve identical facts and issues. See St. Paul Insurance Co. v. McPeak, 641 S.W.2d 284, 289 (Tex.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.) (on rehearing); Burleson v. Finley, 581 S.W.2d 304, 308 (Tex.Civ.App.—Austin 1979, writ ref’d n.r.e.); Straughan v. Houston Citizens Bank & Trust, 580 S.W.2d 29, 33 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ).

Furthermore, in its Motion For Severance, Commonwealth alleged that good cause for severance existed in that (1) the summary judgment resolved all disputed claims to the tendered funds; (2) the claims between Dallas Bank and the account parties were unrelated to the claims between Dallas Bank and Commonwealth; (3) failure to sever would have caused unnecessary delay and deprived Commonwealth of use of the funds; and (4) severance was essential to enforce the otherwise interlocutory summary judgment. A trial court is vested with broad discretion in determining whether to sever a cause of action, and its decision will not be overturned on appeal absent an abuse of discretion. Womack v. Berry, 156 Tex. 44, 291 S.W.2d 677, 682 (1956); Fisher v. First National Bank of Memphis, Texas, 584 S.W.2d 515, 520 (Tex.Civ.App.—Amarillo 1979, no writ). We hold that the trial court did not abuse its discretion.

Dallas Bank additionally asserts that, as an innocent stakeholder, it w;as entitled to attorney’s fees assessed against the interpleaded fund. See United States v. Ray Thomas Gravel Co., 380 S.W.2d 576, 581 (Tex.1964). We disagree. Since the interpleader was improper, the Bank was not an “innocent stakeholder” and, consequently, is not entitled to recover attorney’s fees. See Orem v. Farmers National Bank in Brenham, 325 S.W.2d 149, 152 (Tex.Civ.App.—Waco 1959, writ ref’d n.r.e.); Security State Bank of Pharr v. Shanley, 182 S.W.2d 136, 138-39 (Tex.Civ. App.—San Antonio 1944, no writ).

Finally, Dallas Bank claims that, in the July 15 judgment, the court erred by awarding Commonwealth nine percent interest from May 13, 1983, the date of entry of the summary judgment. The bank argues that this award of “prejudgment” interest exceeded the legal limit. We disagree with Dallas Bank’s characterization of the award as “prejudgment.” The summary judgment, though not final for purposes of appeal, fixed Dallas Bank’s liability. Furthermore, the statute in effect at the time the summary judgment was entered provided that “[a]ll judgments of the courts of this state shall bear interest at the rate of nine percent.” Act of 1975, ch. 288, § 1 1975 Tex.Gen.Laws, Local & Spec. 730, repealed by Act of 1983, ch. 107, § 1, 1983 Tex.Gen.Laws 518. The statute does not distinguish between final and interlocutory judgments, and we cannot presume a distinction.

DECLARATORY JUDGMENT

The trial court entered a declaratory judgment that Dallas Bank take nothing from American and Forty-Five Fifteen. The judgment declared that the letter of credit expired before Commonwealth’s demand, that the demand documents did not conform to the requirements of the letter of credit, and that neither American Industries nor Forty-Five Fifteen was obligated to reimburse Dallas Bank for sums paid to Commonwealth pursuant to the summary judgment.

We affirm the judgment on two grounds. First, Dallas Bank alleged in its Second Amended Petition in Interpleader, the pleading upon which the declaratory judgment action was tried, that Commonwealth “presented no documents showing that either letter of credit was issued in its favor,” that Commonwealth had not made a “showing in the documents ... that Forty-Five Fifteen is in default,” and that “the letter of credit ... to the account of American ... expired by its own terms.” These statements are judicial admissions conclusively negating Dallas Bank’s claim that it was obligated to honor Commonwealth’s demand.

More importantly, Dallas Bank introduced no evidence at the declaratory judgment hearing of an account relationship with American Industries or Forty-Five Fifteen, of a contract or agreement requiring American Industries or Forty-Five Fifteen to reimburse the bank, or of an express or implied indemnity obligation. Thus, no evidence was before the court to indicate that either corporation was liable to Dallas Bank. Accordingly, we affirm both judgments.

Affirmed.


author: COUNTISS, Justice.

text:
    William BENNETT v. The STATE of Texas.
    No. 07-82-0256-CR.
    Court of Appeals of Texas, Amarillo.
    Dec. 31, 1984.

      E. Dean Roper, Jeff Blackburn, Amarillo, for appellant.
    Danny E. Hill, Dist. Atty., Amarillo, for appellee.
    Before REYNOLDS, C.J., and DODSON and COUNTISS, JJ.
   COUNTISS, Justice.

Appellant was convicted of murdering Phillis Fassauer and sentenced to 75 years in the penitentiary. In this Court he contends, by four grounds of error, that the confession used against him was inadmissible. We affirm.

On November 17, 1981, a friend found the bodies of Robert Phillips and Phillis Fassauer in Phillips’ home. Both had been shot to death. Two days later, appellant’s sister told police he had admitted killing them. Acting on her information, police prepared an “Affidavit for Search and Arrest Warrant.” The document failed to request an arrest warrant, however, and police were issued only a search warrant for appellant’s car. Officers then went to the residence of an individual named Jim Shelnutt to execute the warrant. Several officers began to search appellant’s car, which they found parked outside Shelnutt’s residence, while another officer went to the house and attempted to rouse the occupants. After no one responded to his knocks and yells, the officer kicked in the door. Espying appellant sitting on a couch and smoking a marijuana cigarette, the officer arrested him for murder. A few hours later, at 4:30 a.m. on November 20, 1981, after receiving appropriate admonitions and after observing that his sister was cooperating with police, appellant gave a statement admitting that he shot Phillips and Fassauer, implicating no one else and suggesting some elements of self-defense as to Phillips. Appellant was subsequently arraigned and counsel was appointed to represent him.

A week later, appellant told a jailer he wanted to talk to the officers who had taken his confession. The jailer relayed the request, but the officers did not respond. Appellant repeated the request the next day and the two officers then met with him. At that time, appellant said he wanted to tell them about Jim Shelnutt’s involvement in the murder. The officers read Bennett his rights again and, according to one of the officers, “We discussed the fact that he had a lawyer and could have him over there. And he indicated that he didn’t want his lawyer there.”

Appellant then made a second statement, more detailed than the first, admitting the murders and revealing that Shelnutt hired him to kill Phillips for $1,000 worth of “crystal.”

At the trial, the State introduced only the second statement, which the trial court found was given, after appropriate warnings, freely and voluntarily and “was not tainted by any arrest of ... [appellant] prior to the giving of the statement.” In this Court, appellant launches a dual attack on the statement. First, by grounds one and two, he argues that its admission violated the Fourth Amendment of the U.S. Constitution and Art. 1, § 9 of the Texas Constitution because appellant’s warrant-less arrest was illegal, the first statement was fatally tainted by the illegal arrest and the first statement fatally tainted the second. Next, by grounds three and four, he argues that the taking of a second statement after appellant was represented by counsel violated his rights under the Sixth Amendment of the U.S. Constitution and Art. 1, § 10 of the Texas Constitution. We will resolve the arguments in the order stated.

In determining whether the second statement was fatally tainted by the events preceding it, as asserted by grounds one and two, we will assume, without deciding, that the warrantless entry into the house where appellant was arrested was illegal and the first confession inadmissible. Also, we will resolve both constitutional challenges under one analysis, because appellant’s protections under Art. 1, § 9 are the same as his Fourth Amendment protections. Brown v. State, 657 S.W.2d 797, 798-99 (Tex.Crim.App.1983).

The controlling question, then, is whether the statement admitted into evidence was a product of appellant’s arrest and first statement, or of legal means sufficiently separate from the arrest “to be purged of the primary taint.” Duncan v. State, 639 S.W.2d 314, 317 (Tex.Crim.App. 1982).

In this problem area, each case is to be resolved on its own facts. Brown v. Illinois, 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416 (1975). The threshold question is whether the confession was voluntary under Miranda. Brown, 422 U.S. at 604, 95 S.Ct. at 2262. Other significant factors are “ ‘[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct.’ ” Taylor v. Alabama, 457 U.S. 687, 690, 102 S.Ct. 2664, 2667, 73 L.Ed.2d 314 (1982), quoting Brown, 422 U.S. at 603-04, 95 S.Ct. at 2261-62.

A case factually comparable to this one is Wicker v. State, 667 S.W.2d 137 (Tex.Crim.App.1984). In that case, the arrest was illegal because the arrest warrant was not based on probable cause. During the defendant’s detention, he gave certain written and oral statements at the outset that were not used at trial. In the interum he was given repeated Miranda warnings, was taken before a magistrate, and was not subjected to improper influence from the police. The written confession used at trial came five days after the illegal arrest. Between the giving of the statements not used and the one admitted into evidence, the defendant was allowed to meet with lawyers, his family, and a psychiatrist. Probable cause was developed after the arrest but before the last written statement. The Court of Criminal Appeals held that the last written statement “was not the result of exploitation of the arrest and prior statements. We find no causal relationship between the prior statements and the written statement admitted at trial.” Id. at 141.

In this case, ten days separated the arrest from the second confession. Appellant was given thorough Miranda warnings several times, was taken before a magistrate, and was not subjected to improper influence from the police. From the statement, we know he consulted his lawyer several days before he gave the statement. From the record we are satisfied that the immediate cause of appellant’s first confession was his confrontation with his sister and the realization that she would probably testify for the State. Finally, the State had probable cause to arrest Bennett at the time it obtained the search warrant, so that the warrantless entry, while disconcerting and generally intolerable, was not done to illegally circumvent arrest requirements. Thus, after careful consideration of all the surrounding circumstances, we conclude, consistent with Wicker, supra, that the second statement was not fatally tainted. Grounds one and two are overruled.

Having found that the second statement was not tainted, by appellant’s arrest and first statement, we must next determine whether it was obtained in violation of his state and federal rights to counsel, as he contends in his third and fourth grounds. Here, also, we apply a single analysis to both grounds. See Parker v. State, 545 S.W.2d 151, 155 (Tex.Crim.App.1977).

The filing of formal charges activates the Sixth Amendment right to counsel, Rudd v. State, 616 S.W.2d 623, 624 (Tex.Crim.App.1981), and forbids the State from eliciting incriminating statements from a defendant in the absence of his counsel. Brewer v. Williams, 430 U.S. 387, 400, 97 S.Ct. 1232, 1240 (1977). The right to counsel may be waived, however, and the standard for showing a waiver of the Sixth Amendment right to counsel is the same as that for the Fifth Amendment, once counsel has been requested: the waiver must be voluntary, knowing and intelligent. Green v. State, 667 S.W.2d 528, 532 (Tex.Crim.App.1984). The burden is on the State to show such a relinquishment of rights, and courts should indulge every reasonable presumption against such a waiver. Parker v. State, 545 S.W.2d 151, 155 (Tex. Crim.App.1977). Courts must test the waiver in light of the totality of the circumstances. Castro v. State, 562 S.W.2d 252, 258 (Tex.Crim.App.1978).

Here, appellant had his rights read to him several times before each statement was given and expressly waived his right to counsel, in writing, in the second statement. See Williams v. State, 566 S.W.2d 919, 923 (Tex.Crim.App.1978). There was also evidence that he expressly waived his right to counsel orally before the statement was prepared. Appellant’s oral and written statements are strong evidence of the validity of the waiver. Kelly v. State, 621 S.W.2d 176, 180 (Tex.Crim.App.1981).

■ Additionally, we note that appellant was twenty-five years old, had at least some high school education, and was able to read. Although he presented evidence of emotional and possibly neurological problems, nothing in the record indicates he lacked the capacity to waive his rights. Most significantly, it was appellant who made two separate requests for the interview that led to the second confession. Phifer v. State, 651 S.W.2d 774, 778 (Tex.Crim.App.1983); Kelly, 621 S.W.2d at 180. Thus, from the totality of the circumstances, the trial court did not err in finding that appellant waived his right to counsel “knowingly” and “of his free will, and that he was not denied the assistance of counsel.”

The judgment of conviction is affirmed.

      . The second statement is set out in full as "Appendix A" of this opinion.

      . We reserve the right to resolve those matters, should it later become necessary to do so, without any assumptions of impropriety. We have serious doubts about appellant’s standing to challenge the warrantless entry at the time of this arrest. See United States v. Torres, 705 F.2d 1287, 1296 (11th Cir.1983); United States v. Renton, 700 F.2d 154, 161 (5th Cir.1983); Lewis v. State, 598 S.W.2d 280, 283-84 (Tex.Crim.App. 1980); Willeford v. State, 454 S.W.2d 745, 746 (Tex.Crim.App.1970); Gaskin v. State, 365 S.W.2d 185, 186 (Tex.Crim.App.1963). See gen

        erally 3 LA FAVE, SEARCH & SEIZURE § 11.3 at 554-55 (1978).

      . Unlike the defendant in Pitts v. State, 614 S.W.2d 142, 143 (Tex.Crim.App.1981), appellant was not confronted with tainted evidence. If an impetus for confession exists, untainted by and separate from the illegal arrest, then it should be given some consideration when deciding whether the confession was a fruit of the arrest. Brewer v. State, 271 Ark. 810, 611 S.W.2d 179, 182 (1981); People v. Gabbard, 78 Ill.2d 88, 34 Ill.Dec. 751, 398 N.E.2d 574, 579 (1979); Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180, 1183-84 (1977). The question is not whether the intervening events are the sole cause of the confession, but whether the confession '"was sufficiently an act of free will to purge the primary taint.’” Brown v. Illinois, 422 U.S. at 599, 95 S.Ct. at 2259 (emphasis added in Brown), quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).


author: ROBERTSON, Justice.

text:
    Troy Zayne GORDON, Appellant, v. The STATE of Texas, Appellee.
    No. B14-84-182CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1985.
    Rehearing Denied Jan. 24, 1985.
    David P. Zavoda, Houston, for appellant.
    John B. Holmes, Dist. Atty., Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ROBERTSON, Justice.

The jury rejected appellant’s plea of not guilty to the misdemeanor offense of possession of marijuana and assessed punishment at six months confinement, to be probated, and $500.00 fine. Three grounds of error on appeal relate to the jury charge and sufficiency of the evidence. We affirm.

During the day that Hurricane Alicia struck Houston, Deputy Constable Deltz, while on patrol at about 1:20 a.m., observed appellant’s automobile on Kirkwood Drive. Deltz’s attention was attracted not only because this was the only vehicle seen by him on the streets in this vacinity but also because appellant’s car was travelling at an excessive speed for the then existing weather conditions. Deltz pursued the vehicle with his overhead lights flashing and his spotlight shining, but appellant continued to travel for a distance of a quarter mile. During the pursuit, Deltz observed three persons in the car and he saw appellant, the driver, making furtive gestures, which he described as "... leaning under the seat, leaning towards the front of the seat.” Additionally, the passenger in the back seat was “slumped down in the vehicle like he was leaning up against the back of the seat ...”

After appellant stopped his vehicle, Deltz ordered all three persons out of the automobile. He then searched the automobile out of concern for his own safety and because of the automobile occupant’s conduct during his pursuit. Under the driver’s seat, he observed a hand towel, a cassette recorder, and a brown bag. The bag was toward the rear of the driver’s seat but within the rails on which the driver’s seat rested. Deltz removed the bag and upon opening it, he observed “four plastic bags full of a green leafy substance.” The appellant and the two occupants were arrested for public intoxication. None of the occupants of the vehicle claimed ownership of the marijuana.

Appellant, in his first ground of error, asserts the evidence was insufficient for conviction of the offense. He argues that the constable failed to determine who owned the vehicle and that the facts fail to “prove that there is an affirmative link between the accused and the drug”, relying on Johnson v. State, 625 S.W.2d 330 (Tex. Crim.App.1981) and Harvey v. State, 487 S.W.2d 75 (Tex.Crim.App.1972). We disagree. In Johnson, the court found the evidence insufficient to show possession of drugs hidden in the auto and specifically noted the absence of furtive gestures or evidence of the vehicle’s ownership. In Harvey, the defendant was a passenger seated in the right rear of the vehicle. His furtive gestures were towards drug paraphernalia in the rear of the car where he was seated. The marijuana of which he was charged with possessing was located on the dashboard in front of the driver’s seat, and there was a total absence of evidence connecting him to it.

In this case, appellant was the driver of the vehicle and the marijuana was located under his seat. When the constable attempted to stop appellant, he fled and was observed making the furtive gestures towards the area where the marijuana was located. Possession need not be exclusive, and evidence which shows the accused jointly possessed the contraband with another is sufficient. Harvey, 487 S.W.2d at 77. We find the evidence sufficient to support the conviction. Appellant’s first ground of error is overruled.

In his second ground of error, appellant alleges that the charge to the jury was a comment on the weight of the evidence.

The portion of the charge to which appellant objected was:

In order for a conviction for marihuana to be sustained, possession need not be exclusive in the defendant. Therefore, you are charged that the defendant, Troy Zayne Gordon, can be found guilty of the offense of possession of marihuana if you believe beyond a reasonable doubt that he committed the offense, and not be in exclusive possession of the alleged contraband.
You are further charged that the mere presence of the defendant at a place where the alleged contraband is possessed does not, in itself, justify a finding that he is guilty of possession of marihuana. Therefore, if you believe beyond a reasonable doubt that the defendant was in the car where the alleged contraband was possessed, you are instructed that the defendant’s mere presence, if you so find, in and of itself is not enough to sustain a conviction for the offense of possession of marihuana.

Earlier in the charge, the court had instructed the jury:

By the term “possession,” as used herein, is meant the care, custody, control and management of the controlled substance, if any, in question.
Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

We are unable to agree that the above charge constituted a comment on the weight of the evidence. Indeed, the charge, viewed as a whole, was favorable to the appellant. While the jury was instructed that possession need not be exclusively in the defendant, they were instructed that to find him guilty they had to believe beyond a reasonable doubt that appellant committed the offense. The jury was further warned not to convict appellant because he was present at a place where the contraband was found. Appellant’s second ground of error is overruled.

In his third ground of error, appellant asserts the trial court erred in failing to submit his requested charge that “where the defendant ... was not in exclusive control of the car in which the contraband was found, if any, it could not be concluded that [he] had knowledge or control of the marijuana, if any, unless there are additional facts or circumstances that affirmatively link [him] to the marijuana.” This requested instruction singled out favorable testimony to himself and, as such, constituted a comment on the weight of the evidence. Hawkins v. State, 656 S.W.2d 70, 72 (Tex. Crim.App.1983). The charge furthermore assumed disputed fact issues. Therefore, the appellant’s requested charge was properly refused. Appellant’s third ground of error is overruled.

Affirmed.