author: CADENA, Chief Judge.

text:
    Lorellis K. Sherrill HARDIN, Appellant, v. Carl C. HARDIN, Jr., Appellee.
    No. 04-82-00468-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 31, 1984.

      Abraham D. Ribak, San Antonio, for appellant.
    Roy R. Barrera, Sr., Nicholas & Barrera, San Antonio, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

CADENA, Chief Judge.

Appellant, Lorellis K. Sherrill Hardin, complains of those portions of a divorce decree dividing the property between her and appellee, Carl C. Hardin. We affirm.

The trial court characterized as appel-lee’s separate property the beneficial interest in a Texas Dental Association Trust created by the Dental Association on January 13,1979. Appellee is the beneficiary of such trust, and the trial court determined that the benefits from the trust were a gift to appellee by the Dental Association. Appellant asserts that this characterization of the beneficial interest in the trust as the separate property of appellee was error.

Appellee, a licensed attorney, acted as legal consultant to the Dental Association for a period of approximately 33 years. During this same period he was employed by the Board of Dental Examiners of the State of Texas. A question concerning a possible conflict of interest resulting from the two employments was resolved by ap-pellee’s resignation in 1978 as legal consultant to the Dental Association. After appel-lee had terminated his employment with the Dental Association, the board of directors of the association created the trust in question. The preamble of the trust agreement contains a reference to appel-lee’s past services and an expression of the Dental Association’s appreciation. Under the terms of the trust agreement, the trustee is directed to make periodic payments to appellee, beginning at the time appellee terminates his employment with the state agency and continuing for five years or until the death of appellee, whichever event occurs first. If the trust terminates because of the expiration of the 5-year period, the corpus is to be distributed to appellee. If the trust terminates because of the death of appellee, the corpus is to be paid in accordance with the terms of appellee’s will or, if he dies intestate, in accordance with the statutes of descent and distribution.

We agree that appellee’s interest in the trust was properly characterized as his separate property.

Since the interest in the trust was acquired by appellee during the marriage, it must be considered to be community property unless he acquired it by gift, devise or descent. TEX.FAM.CODE ANN. § 5.01 (Vernon 1975). Since it is clear that the interest was not acquired by devise or descent, we need only concern ourselves with determining whether it was acquired by gift.

At the time that appellee retired, the employer had no pension, retirement or profit-sharing plan. The trust was not created because of any contract, express or implied between appellee and the employer. It was not a part of the contemplated consideration for the services rendered by ap-pellee. The trust was created, after appel-lee had retired, in appreciation for appel-lee’s previous long service which appellee had rendered without any basis for expecting anything other than his regular salary or retainer as long as he continued in such employment.

The trust was not in existence at the beginning of appellee’s employment, nor did it result from a promise to pay after a definite period of service. The payments to appellee from the trust cannot be treated as part of his salary which was deferred until appellee had served the employer for any stated period of time. Since the employer was under no obligation to establish the trust or to make any payments to ap-pellee at the time of his retirement, appel-lee’s interest in the trust can only be regarded as a gratuity.

There are, of course, many cases holding that benefits paid upon retirement are not' to be characterized as gifts which would constitute the separate property of the recipient even though the employee had made no monetary contributions into the retirement or pension plan. Herring v. Blakely, 385 S.W.2d 843, 846 (Tex.1965); Mora v. Mora, 429 S.W.2d 660, 662 (Tex.Civ.App.—San Antonio 1968, writ dism’d). In all such cases, the retirement or pension plan was in existence either at the time the retiree began his employment or was initiated before the employee retired. In such cases it can justifiably be said that the recipient’s interest in the retirement plan is an earned property right. Since it is an earned property right, it is a right which the employee can enforce and which the employer is obligated to recognize by making the payments called for by the plan when the employee has worked for the required period of time.

Retirement and pension plans are designed to decrease employee turnover, to meet competition from other employers and to increase incentive. These benefits to the employer are considered sufficient consideration to remove the payments under such plans from the category of gifts. In the case before us the employer received no such benefits, since there was never any plan during appellee’s term of service which might be considered an inducement for him not to change employment. The creation of the trust was not designed to secure any such benefits for the employer. The creation of the trust after appellee had retired was, clearly and simply, a gift from which the employer could receive no benefit. See Daigre v. Daigre, 228 La. 698, 83 So.2d 906 (1955) (on rehearing).

The record does not support appellant’s contention that the trial court abused its discretion in failing to award her an interest in other retirement benefits received or earned by appellee.

Appellee was receiving $2,198.25 each month from the Texas Employees’ Retirement System, based upon more than 41 years service as a state employee. Appellant, at the time of trial, had retirement accounts which had a combined value of $52,000.00. A portion of appellee’s retirement benefits, representing 20 years and two months of service, accrued or was earned during the marriage. The trial court awarded the retirement benefits to the person who had earned them.

Less than one-half of appellee’s retirement benefits, other than those attributable to the dental association trust, were earned during the marriage. All of appellant’s benefits were earned during the marriage. At the time of trial appellee was 67 years old and had retired. Appellant was 60 years old and she was receiving an income, and adding to her retirement benefits, as a professor of dentistry at the University of Texas Health Science Center. Under these circumstances, we cannot say that the trial court abused its discretion in awarding to each party the retirement benefits which had been earned by each and which constituted community property. See Murff v. Murff, 615 S.W.2d 696, 699 (Tex.1981). Even though retirement pay is community property, the trial court may, in its discretion, award all of it to the party earning it. Walker v. Walker, 608 S.W.2d 326, 328-29 (Tex.Civ.App.—Eastland 1980, no writ); Smith v. Manger, 449 S.W.2d 347, 349 (Tex.Civ.App.—San Antonio 1970, no writ). In the absence of a showing of a clear abuse of discretion, this Court must uphold the action of the trial court. Bell v. Bell, 513 S.W.2d 20, 22 (Tex.1974).

Appellant complains of the trial court’s failure to allow rebuttal or cross-examination after she had rested.

During the two-day trial, appellant called nine witnesses, including appellee. Extensive testimony was heard concerning the nature and value of the various assets and liabilities of the parties. After appellant rested, appellee was called to testify by his attorney. Shortly after the direct examination of appellee began, the court interrupted and asked to see both attorneys in chambers. No further proceedings were transcribed.

The judgment recites that the case was again called on a subsequent day “for trial and final determination of the division of the property and community debts of the parties,” and that the court had “further considered the argument of counsel and all testimony presented.”

The record does not support appellant’s contention that she was denied due process. She was fully allowed to present her evidence before she rested, and this evidence included testimony of appellee. It was appellee’s presentation of his case that was interrupted by the trial court’s request that the attorneys meet with the judge in chambers. The statement of facts ends at this point.

The record does not reflect that any rulings were made during the conference in chambers. The in-chamber discussions were not taken down by the court reporter, and appellant presents no bill of exception purporting to reflect what happened in chambers. Appellant did not request that she be allowed to again question appellee after she had, during the presentation of her testimony, questioned him extensively concerning the matters in dispute. When appellee was recalled to the stand after appellant had rested, the essence of his testimony before the trial judge interrupted was similar to the testimony elicited from him by appellant, and no new issues were raised.

There is nothing in the record to indicate that appellant intended to introduce any rebuttal testimony. There is nothing in the record which indicates the nature of such rebuttal testimony, nor does the record reflect that appellant requested an opportunity to offer rebuttal testimony. Appellant has failed to show that she was harmed in any way by the action of the trial court. TEX.R.CIV.P. 434. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980).

Jordan v. Jordan, 653 S.W.2d 356 (Tex.App.—San Antonio 1983, no writ) does not support appellant’s due process claim. In that case the trial court rendered judgment before either side had rested. The appealing party was given no opportunity to present any evidence whatever.

Appellant’s complaint concerning the total division of the property cannot be upheld. The complaint is based on the assertion that appellee was awarded 3½ times the value of community property awarded to her. However, in arriving at this ratio appellant includes the interest in the trust which we have held was appellee’s separate property, as well as the entire value of appellee’s state retirement benefits, although the evidence that less than one-half of such benefits were earned during the marriage. Additionally, the comparison on which appellant relies includes only a portion of the assets of the community estate. The comparison includes only the two residences owned by the community and the retirement benefits earned by each party.

While there is a disparity in the value of the two residences, appellant received all the personal property in one residence and numerous items of furniture and art work located in the other residence. She also received a note in the amount of $4,437.96, and a 1981 Oldsmobile 98 Regency automobile. Three items of property, burdened with approximately $236,000.00 in debts, were awarded to appellee.

The record discloses no clear abuse of discretion.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: REEVES, Justice.

license: Public Domain

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Jose T. OROZCO, Appellee.
    No. 04-83-00121-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 31, 1984.
    Ann Livingston, Groce, Locke & Hebdon, San Antonio, for appellant.
    Mark Smith, Mark Smith & Associates, Lubbock, for appellee.
    Before CADENA, C.J., and CANTU and REEVES, JJ.
   OPINION

REEVES, Justice.

This is an appeal from an interlocutory judgment in a worker’s compensation case which overruled appellant’s plea of privilege to be sued in the county where appel-lee’s injury occurred.

Appellant, Texas Employers’ Insurance Association (TEIA), and appellee, Jose T. Orozco (Orozco), both filed an appeal from the final order of the Industrial Accident Board. Orozco instituted his suit in Webb County on October 14, 1981, alleging that Webb County was the county of his residence. TEIA instituted its lawsuit on October 26, 1981, alleging that Lubbock County was the county where the injury occurred. TEX.REV.CIV.STAT.ANN. art. 8307, § 5 (Vernon 1984) provides that the suit may be brought in the county where Orozco’s injury occurred, or in the county where the employee resided at the time the injury occurred.

The trial court in Webb County overruled TEIA’s plea of privilege and held venue was in Webb County. TEIA perfected appeal to this court.

The trial court in Lubbock County granted Orozco’s plea of privilege and transferred the case to Webb. The Seventh District Court of Appeals affirmed in Texas Employers’ Insurance Association v. Orozco, 669 S.W.2d 427 (Tex.App.—Amarillo 1984). TEIA appealed to the Supreme Court where the case was dismissed for want of jurisdiction. Texas Employers’ Insurance Association v. Orozco, 27 Tex. Sup.Ct.J. 544 (Sept. 12, 1984) (order dismissing writ of error application for want of jurisdiction).

A final judgment rendered on a plea of privilege is conclusive on the parties as to the issue of venue. Hagemeister v. Vanity Fair Properties, 503 S.W.2d 879 (Tex.Civ.App.—Tyler 1973, writ dism’d). In Hagemeister, defendant’s plea of privilege had been denied by a district court. However, a court of appeals reversed, sustaining the plea and transferring the case to the county of defendant’s residence. Before the mandate was issued ordering the district clerk to transfer the suit, the district court granted the plaintiff a non-suit and dismissed the case. The Hagemeister court held that the order of the court of civil appeals sustaining the plea of privilege had become final and the case stood as though it had been originally filed in the county of defendant’s residence. The district court was powerless to deal with the subject matter by dismissal as the case had been ordered transferred. “A final judgment upholding such a plea and ordering transfer of the cause to the county where the defendant resides irrevocably fixes the venue of any other suit on the same subject matter.” Id. at 881.

In another decision involving a plea of privilege, Pinney v. Cook, 558 S.W.2d 33 (Tex.Civ.App.—Corpus Christi 1977, no writ), the Tyler Court of Civil Appeals overruled the trial court’s denial of defendant’s plea of privilege and ordered the case transferred to Dallas County. The Pinney court stated, “The decision irrevocably fixed venue in Dallas County as to both claims against Pinney [the defendant] in the first suit. The principle of res judicata dictates that any subsequent suit brought by Cook [the plaintiff] against Pinney should be heard in Dallas County.”

As a final judgment by the Amarillo Court of Appeals has been rendered on the venue issue, we affirm the order of the trial court overruling TEIA’s plea of privilege.


author: REEVES, Justice. TIJERINA, Justice,

text:
    The BENAVIDES INDEPENDENT SCHOOL DISTRICT, Isaac Gonzalez, Jr. and Aida G. Garza, Appellants, v. Eloy P. GUERRA, Appellee.
    No. 04-83-00198-CV.
    Court of Appeals of Texas, San Antonio.
    Oct. 31, 1984.
    Rehearing Denied Nov. 27, 1984.

      Herman H. Segovia, Peter Torres, Jr., San Antonio, for appellants.
    Raul Garcia, Alice, Abelardo Garza, San Diego, for appellee.
    Before BUTTS, TIJERINA and REEVES, JJ.
   OPINION

REEVES, Justice.

This is an appeal from an order granting a temporary injunction. The trial court ordered appellants, the Benavides Independent School District (BISD), superintendent of BISD, Isaac Gonzalez, Jr., and president of the school board of BISD, Aida G. Garza, to restore appellee Eloy P. Guerra to the status of full-time principal at full time principal pay, including back pay.

Guerra was a full-time elementary principal with BISD. He had been employed under a series of one year term contracts, the last of which ended June 20, 1981. On March 30, 1981, BISD voted to extend his contract but as a part-time elementary principal with a corresponding reduction in pay. The contract was delivered to Guerra on April 30,1981. He signed the contract but drew a line through the words “part time” and through the salary figure. Guerra met with the superintendent that same evening protesting the changes.

As a relative of a board member, related within the third degree of consanguinity, Guerra contends that appointment to a different position would violate the nepotism laws of the district and the Texas Education Agency.

Guerra requested a hearing before the school board and was notified by letter of June 10,1981, from the superintendent that his grievance hearing would be held at the regular meeting of the board on June 16, 1981. The minutes of that meeting reflect no vote was taken by the Board on that date. There was only a discussion of the grievance by the school’s attorney. Nonetheless, Guerra received a letter dated July 30, 1981, which stated that the board had decided in its meeting on June 16, 1981, that the only contract offered to Guerra was the one of April 30, 1981. Contrary to this assertion, Guerra was told by the superintendent that the Board had not made a final decision as it was awaiting an Attorney General’s opinion on the legal issues.

By form letter sent to all teaching personnel, Guerra was requested to begin work on August 5, 1981. When he received his first paycheck, he discovered his pay level had been reduced to that of a part-time principal. He filed suit in district court in October, 1981, requesting inter alia, the temporary injunction.

In five points of error, the school district argues error in the granting of the injunction because:

(1) Guerra failed to exhaust his administrative remedies.

(2) The granting of the temporary injunction changed the status quo between the parties.

(3) Enforcing the contract was error because the contract was void and against public policy.

(4) Guerra did not file a bond.

(5) The order granting the injunction fails to state the reasons for the injunction.

In temporary injunction cases, the only question presented is whether the trial court abused its discretion in issuing or refusing the injunction. Sun Oil v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968).

In discussion of its first point of error, BISD concedes that Guerra followed all of the grievance procedures outlined in the policy manual of the school district. However, BISD argues that these procedures are not exhaustive of all available administrative remedies. BISD relies upon section 11.13 of the Texas Education Code which reads, in pertinent part:

(a) Persons having any matter of dispute among them arising under the school laws of Texas or any person aggrieved by the school laws of Texas or by actions or decisions of any board of . trustees or board of education may appeal in writing to the commissioner of education who, after due notice to the parties interested, shall hold a hearing and render a decision without cost to the parties involved, but nothing contained in this section shall deprive any party of any legal remedy.
(b) The decisions of the commissioner of education shall be subject to review by the State Board of Education.

TEX.EDUC.CODE ANN. § 11.13 (Vernon 1972).

Contrary to the contention of BISD, section 11.13 does not mandate exhaustion of the administrative remedies stated therein. The language used by the legislature is permissive; “any person aggrieved ... may appeal in writing to the commissioner of education.” BISD ignores the crucial qualification contained in section 11.13(a); “... but nothing contained in this section shall deprive any party of any legal remedy.” Section 11.13 affords Guerra a right of appeal to the commissioner of education but, having exhausted those remedies set out in the BISD policy manual, he is entitled to choose to bring suit in court.

The general rule established in cases discussing section 11.13 and the earlier statute from which it was patterned is that a party must exhaust all administrative appeals before resort may be had to the courts. However, this general rule applies only when there are questions of fact to be resolved. When the facts are not in dispute, and only a question of law is presented, immediate resort to the courts is proper. Cook v. Neill, 163 Tex. 49, 59, 352 S.W.2d 258, 264 (1961); Mission Independent School District v. Diserens, 144 Tex. 107, 188 S.W.2d 568, 570 (1945). The Supreme Court in Cook discussed this exhaustion exception and held that in some instances even though only questions of fact were involved, the aggrieved party may have an election to appeal to the courts rather than the administrative authorities. Cook, 352 S.W.2d at 264-65.

In a proper ease, injunctive relief may be granted without exhausting all administrative appeals to the State authorities. Warren v. Sanger Independent School District, 116 Tex. 183, 288 S.W. 159, 160 (1926); Alvin Independent School District v. Cooper, 404 S.W.2d 76 (Tex.Civ.App.—Houston [1st Dist.] 1966, no writ).

BISD relies upon Trustees of Crosby Independent School District v. West Disinfecting Co., 121 S.W.2d 661 (Tex.Civ.App.—Dallas 1983), writ dism’d w.o.j., 135 Tex. 492, 143 S.W.2d 749 (1940); Schenker v. City of San Antonio, 369 S.W.2d 626 (Tex.Civ.App.—San Antonio 1963, writ ref’d n.r. e.); Hinojosa v. San Isidro Independent School District, 273 S.W.2d 656 (Tex.Civ.App.—San Antonio 1954, no writ) for the proposition that administrative remedies must be exhausted. However, in both West Disinfecting Co. and Hinojosa exhaustion was required because there were questions of fact to be resolved. Schenker is inapplicable; it involves a suit against a public utility, and does not involve construction of the Texas Education Code.

In Board of Trustees of Crystal City Independent School District v. Briggs, 486 S.W.2d 829 (Tex.Civ.App.—Beaumont 1972, writ ref’d n.r.e.), the school district attempted to discharge a school superintendent. The court stated:

Whether or not District was entitled to reassign Briggs under the terms of the contract was one of law urged by the District in defense of Briggs’ claim for money. The Commissioner of Education does not exercise judicial power to determine the legality of contracts or the legal rights of parties thereto. Such are matters for the courts to determine under our system of a division of powers of government.

486 S.W.2d at 835.

There is another exception recognized in Texas courts to the general rule requiring exhaustion of administrative remedies. Where a school board acts without express or implied statutory authority or in contravention of a statute, then its act is void and a direct appeal will lie to the courts. Palmer Publishing Co. v. Smith, 130 Tex. 346, 348, 109 S.W.2d 158, 159 (1937); Bear v. Donna Independent School District, 74 S.W.2d 179, 180 (Tex. Civ.App.—San Antonio 1934, writ ref’d).

The school board itself argues the illegality of the contract in point of error number three. “Where a school board acts without authority of law and contrary to express statutes, and in such a manner that its act is void, then the Courts ... may be appealed to directly without first exhausting the remedy of appeal to the school authorities.” Bear v. Donna Independent School District, 74 S.W.2d at 180. Point of error one is overruled.

The school district asserts next that the trial court erred in granting the temporary injunction because the injunction changed the status quo between the parties. A temporary injunction is issued to maintain the status quo between the parties pending a final trial of the case on the merits. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (Tex.1953). The status quo is defined as “the last, actual, peaceable, non-contested status which preceded the pending controversy.” Id. 261 S.W.2d at 553-54.

BISD asserts that the status quo to be preserved was the employment status of Guerra before the suit was filed. BISD does not state exactly what this status was; rather it argues that the position of part-time principal was the “best result” Guerra could have expected and the status of unemployment with BISD “should have been expected.”

To accept such an interpretation of the status quo would render the granting of any injunction impossible. If an act of one party alters the relationship between that party and another, and the latter contests the action, the status quo cannot be the relationship as it exists after the action. BISD contends that there was a break in employment. The facts do not support this contention.

The school board approved a contract for Guerra on March 30, 1981, three months before his contract expired. He signed this contract on April 30,1981, after delineating reference to “part-time” principal. For the next five months the parties were in a negotiating posture. Guerra pursued his grievance through the proper school authorities. He received conflicting information from the superintendent. One letter stated that the Board had voted on June 16, 1981, that the April 30, 1981 contract was the only contract he was offered. However, the superintendent told Guerra in August that the Board had not taken any final action as it was awaiting an attorney general opinion on the nepotism question. Guerra was told to report to work on August 5, 1984. Clearly, though the parties may have disputed the terms of Guerra’s contract, there was no break in employment. We hold point of error number two to be without merit.

Point of error three raised by BISD states that the trial court erred in enforcing the employment contract between the parties because the contract was void and illegal and against public policy.

The contract asserted as illegal by both parties is the contract to hire Guerra as a part-time principal. The order of the court did not require BISD to enforce this contract. Rather, the court ruled that there had been a violation of the nepotism laws and enjoined enforcement of the contract. The injunction directed reinstatement of Guerra as a full-time principal as this was the last, actual, peaceable, noncontested status which preceded the pending controversy.

Point of error number four contends that the trial court erred in granting the temporary injunction because Guerra did not file a bond pursuant to Rule 684 of the Texas Rules of Civil Procedure. The filing of a bond is required as a condition precedent to the issuance of a temporary injunction and the failure of the applicant to file such a bond renders the injunction as issued void ab initio. Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956); Nationwide Life Insurance Co. v. Nations, 654 S.W.2d 860 (Tex.App.—Houston [14th Dist.] 1983, no writ). However, the fact that a bond was not posted affects only the validity of the issuance of the temporary injunction; it has no effect on the validity of the court’s order which authorizes the injunction. See Goodwin v. Goodwin, 456 S.W.2d 885 (Tex.1970).

The school district’s fifth point of error attacks the order granting the injunction as defective on its face as it fails to state the reasons for issuing the injunction. This point is overruled as the order of the court substantially complies with the requirements of Rule 683. TEX.R.CIV.P. 683.

The judgment is affirmed. Guerra’s request for attorney’s fees is denied.

TIJERINA, Justice,

dissenting.

I respectfully dissent. The central issue arises out of a dispute over appellee’s termination as a full-time principal. He was subsequently offered employment as a part-time principal. Appellee, without exhausting his administrative remedies, filed suit and obtained an injunction against appellants.

The general rule as to whether an action for wrongful termination of a teacher’s contract is a question of law or fact was decided in Ball v. Kerrville Independent School District, 504 S.W.2d 791, 795 (Tex.Civ.App.—San Antonio 1974, writ ref’d n.r.e.), where the court stated:

... [N]o decision, as far as we know, has held that in a case involving the alleged wrongful termination of a teacher’s contract, immediate recourse to the courts is permissible. In all cases involving the alleged wrongful termination of a teacher’s contract, our courts have held that exhaustion of the administrative remedies is a condition precedent to judicial review.

Thus, it has been held that the wrongful termination of an employee of a school district presents a fact question and the employee or teacher must apply to the school authorities for relief before filing suit in the district court. See Garcia v. Pharr, San Juan, Alamo Independent School District, 513 S.W.2d 636, 641 (Tex.Civ.App.—Corpus Christi 1974, writ ref’d n.r.e.); Farrar v. Colorado Independent School District, 444 S.W.2d 204, 206 (Tex.Civ.App.—Eastland 1969, writ ref’d n.r.e.); see also TEX.EDUC.CODE ANN. § 11.13 (Vernon 1972).

The record reflects that there are questions of fact to be determined by school authorities prior to judicial review. One of the reasons given for the change in the appellee’s status as a principal was the number of teachers he supervised. It is undisputed that appellee’s sole purpose in seeking relief in the district court was to question his termination as a full-time principal. Therefore, the contract dispute in this case should be submitted for administrative determination. The trial court was clearly without jurisdiction. I would reverse the judgment and remand the cause with instructions that appellee exhaust his administrative remedies.


author: LEVY, Justice. DUGGAN, Justice,

text:
    Charles M. SPENCER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0116-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.

      Alvin Titus, Houston, for appellant.
    John B. Holmes, Jr., Harris County Dist. Atty., Roe Morris, Jack Millin, Harris County Asst. Dist. Attys., Houston, for ap-pellee.
    Before LEVY, DOYLE and DUGGAN, JJ.
   OPINION

LEVY, Justice.

This appeal arises from appellant’s conviction for two counts of aggravated robbery, one count of aggravated sexual abuse, and one count of burglary of a habitation. Trial was to the court which assessed punishment at 60 years confinement on each count.

Appellant’s second ground of error contests the sufficiency of the evidence to support the court’s verdict on the aggravated robbery of the second complainant.

All charges arose out of a single incident. The two complainants, V_ P_ and M_ L_, were watching television with another individual in the bedroom of V_ P_’s apartment. The outside door to the apartment was left unlocked in anticipation of the arrival of another friend. The three then observed appellant, a stranger, enter the bedroom carrying M_L_’s purse, which had been left in the living room. Appellant rummaged through the purse demanding money. He took money from this and from V_ P_’s purse. Appellant, unarmed at the outset, retrieved first a fork and later a butcher knife from the kitchen. Wielding the knife, he forced V_ P_ to perform oral sex on him. He then left the apartment, threatening additional harm if the incident were reported to the police.

Appellant complains that there was insufficient evidence to prove the aggravated robbery of M_L_He asserts that the evidence showed that the theft of her property and threats against her were completed by the time he armed himself with the knife and concludes that the evidence did not support the aggravating element of the offense, the use of a deadly weapon.

The second count of the indictment charged:

It is further presented that in Harris County, Texas, CHARLES MICHAEL SPENCER, hereafter styled the Defendant heretofore on or about, June 23, 1983, did then and there unlawfully while in the course of committing theft of property owned by M_ L_, hereafter styled the Complainant, and with intent to obtain and maintain control of the property, intentionally and knowingly threaten and place the Complainant in fear of imminent bodily injury and death, by using and exhibiting a deadly weapon, namely, a knife.

Although charged in the conjunctive, the state may satisfy its burden of proof by proving one element in any conjunctive phrase. Zanghetti v. State, 618 S.W.2d 383 (Tex.Crim.App.1981). Viewed in this perspective, the state could prove the offense charged by demonstrating that appellant, with the intent to maintain control of M_L_’s property, knowingly placed her in fear of imminent bodily injury by exhibiting a knife.

We find that the evidence would support such a finding, i.e., that appellant exhibited the knife with an intent to facilitate the retention of the complainant’s property knowing that this action would place her in fear of imminent bodily injury. M_L_testified that the display of the butcher knife had this effect on her. We therefore find the evidence sufficient to support the conviction. See Beasley v. State, 634 S.W.2d 320 (Tex.Crim.App.1982); Drake v. State, 634 S.W.2d 16 (Tex.App.—Eastland 1982, pet. ref’d). Appellant’s second ground is overruled.

Appellant’s first ground contends that the trial court erred in convicting him on all four counts because they were improperly joined into one indictment. Appellant asserts that only multiple offenses against property, described in Tex.Penal Code Ann. sec. 3.01 (Vernon 1974), may be so joined. This view is incorrect. The state may charge two or more offenses in separate counts of a single indictment if the offenses arise out of the same criminal transaction. Meeks v. State, 653 S.W.2d 6 (Tex.Crim.App.1983). Appellant made no motion to sever the trial of these offenses.

The question still remains whether the court could properly return convictions on all four offenses. Appellant contends that the charges of aggravated sexual abuse and burglary cannot stand because they are not part of the same “criminal episode” as defined in Penal Code sec. 3.01. See Jordan v. State, 552 S.W.2d 478 (Tex.Crim.App.1977). The state counters that the rule against multiple convictions from a single indictment was implicitly overruled with the abandonment of the carving doctrine. See Ex parte McWilliams, 634 S.W.2d 815, 822 (Tex.Crim.App.1982) (op. on reh’g.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982).

The rule prohibiting the return of multiple convictions from a single indictment has a long history in this state and we would be hesitant to find it repealed by implication. It is unnecessary for us to determine the procedural ramifications of McWilliams, however. That question has been addressed and resolved in appellant’s favor. Whenever a single indictment charges two or more distinct felonies in different counts and those offenses are not part of the same criminal episode as defined in section 3.01 of the Penal Code, the accused may be convicted of only one count. Martinez v. State, 662 S.W.2d 393 (Tex.App.—Corpus Christi 1983, pet. ref’d.).

The judgment of the trial court is reformed to show appellant was convicted for two aggravated robberies. As reformed, the judgment is affirmed.

DOYLE, J., participating.

DUGGAN, J., dissenting.

DUGGAN, Justice,

concurring in part and dissenting in part.

I concur with the majority’s action overruling appellant's second ground of error. I respectfully dissent from the action taken on appellant’s first ground of error, whereby the majority reforms the judgment below to show conviction on the two counts of aggravated robbery, but dismisses the two counts charging, aggravated sexual abuse and burglary of a habitation.

All four offenses set out in the four separate counts of the single indictment arose from a single incident or episode. Since the abolition of the carving doctrine in Ex Parte McWilliams, 634 S.W.2d 815 (Tex.Crim.App.1980) (op. on reh’g), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982), appellant may be held to answer for each of these crimes. The majority bases its reformation and dismissal of two of appellant’s four convictions on procedural grounds, citing Martinez v. State, 662 S.W.2d 393 (Tex.App.—Corpus Christi 1983, pet. ref’d). Although Martinez discusses McWilliams, it bases its decision strictly on pre-McWilliams precedent.

I believe the rule against multiple convictions from a single indictment is based on the carving doctrine. With the abandonment of carving in Ex Parte McWilliams, there is no longer any reason to prohibit such multiple convictions. I believe the proper outcome of the instant case is not found through the rule of stare decisis but in the principle that when the reason for a rule ceases to exist, so should the rule itself. I would overrule appellant’s first ground of error and affirm the judgment showing conviction on all four counts.


author: BASS, Justice.

text:
    Cecil Paul BUSH, Appellant, v. Betty Brock BELL and Harris County Democratic Executive Committee, Appellees.
    No. 01-84-00495-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Nov. 1, 1984.
    Before BULLOCK, COHEN and BASS, JJ.
   OPINION

BASS, Justice.

This is an appeal from a suit contesting the eligibility of Betty Brock Bell as a candidate for Justice of the Peace.

Appellant and Betty Brock Bell were candidates for the Democratic nomination as Justice of the Peace, Precinct 7, Position 1, in the primary election held May 7, 1984. It is undisputed that Betty Brock Bell received a majority of the votes cast in the primary election. Appellant contends that she was ineligible to be the Democratic candidate because she had not been a resident of Precinct 7 for at least six months prior to the last date for filing an application to have her name on the primary ballot, February 6, 1984. Tex.Elec.Code Ann. art. 1.05 subdiv. 1. (Vernon Supp.1984).

Appellant brought this suit to enjoin Bell from running in the November 6, 1984, general election as the Democratic candidate for Justice of the Peace Precinct 7, Position 1, and to enjoin the Harris County Democratic Executive Committee (the Committee) from certifying her as the Democratic candidate in the general election.

At trial appellant presented evidence that Bell owned a home in Precinct 6 in which she, her husband and their son had lived for many years. Appellant proved that several neighbors made pre-trial statements that Bell lived in her Precinct 6 home during the six month period before the filing deadline. There was testimony that Bell’s adult son stayed at the home after July 4th, and that all of the utilities remained connected during the six month period. The newspaper and the mail continued to be delivered there. Appellant showed that Bell visited the local pharmacy and her own doctor during that period and never informed them of a change of address. She never informed the constable for whom she worked of her new address. Bell never informed any of her creditors of her new address. Bell had also filed a sworn document with the United States Equal Employment Opportunity Commission [E.E.O.C.], on October 4, 1983, listing the Precinct 6 address as her residence. She complained to a local lawyer that the lawyer’s associate, who also lived in that neighborhood, was detracting from the appearance of her neighborhood by failing to mow his lawn. Bell’s husband continued to carpool from that address. He never told his employer that he had moved. His name continued to be listed in the city directory as an officer of the local civic club. Bell and her husband admitted that they had not taken all of their clothing, and only removed two chairs and a portable television when they moved from Precinct 6 into Precinct 7.

On the other hand, Bell testified that she moved with her husband into her mother’s home within Precinct 7 on July 4,1983 with the intention to abandon her previous residence located within Precinct 6 and to establish her residence with her mother. Her husband made the same statement. They both admitted that they agreed to change their residence because Bell was going to run for office. Clearly, July 4, 1983 was more than six months prior to February 6, 1984, the deadline for filing for candidacy. There was testimony by several people regarding her actual residence at her mother’s home, as well as regarding her verbal declarations that she intended to establish that home as her residence. A real estate broker testified that the Bells had listed their Precinct 6 home for sale on July 9, 1984; however, no prospective buyers actually inspected the home. The Bells’ adult son lived in that home for a period while it was listed. Mr. Bell testified that he had resigned from his position with the local civic club because of their move. Bell explained that the utilities remained connected after they had moved out so that the house would not appear abandoned. They also explained that it had been unnecessary to notify others of an address change because all important mail was received at their post office address. While there was contrary evidence which did raise an issue of fact as to Bell’s actual residence, the trial court found that Bell was a resident of Precinct 7 for six months prior to the February 6, 1984 filing deadline and denied appellant’s application for permanent injunctions.

In three points of error, appellant contends that the trial court incorrectly held that Bell was a qualified candidate because the proof showed that she did not meet the residency requirement.

We find that the fact that her motivation for establishing a new residence was her desire to be a candidate for public office is not relevant to the issue in this cause. Garza v. Trevino, 541 S.W.2d 524 (Tex.Civ.App. — San Antonio 1976, no writ).

The relevant portions of Tex.Elec.Code Ann. art. 1.05 are as follows:

No person shall be eligible to be a candidate for ... any public elective office ... unless he shall have resided ... for six months next proceeding such date in the ... precinct ... for which the office is to be filled;
(1) For a candidate whose name is printed on the ballot for a general (first) primary election, the applicable date is the last day on which any candidate for the office involved could file his application to have his name printed on the ballot for that primary election.

Tex.Elec.Code Art. 5.08 states that for purposes of the statute:

(a) ... “residence” means place of habitation to which he intends to return after any temporary absence.... to another place for temporary purposes only....
(d) A person shall not be considered to have gained a residence in any place to which he has come for temporary purposes only, without the intention of making such place his home....
(g) The residence of a married woman not permanently separated from her husband is considered to be the place where her husband has his residence, but a married woman not living in a household with her husband may establish a separate voting residence from that of her husband.

The district court’s decision tracks the language of the statute and manifests a proper application of the law. The court specifically found that Betty Brock Bell:

abandoned the premises located at 6002 Pebble Lane and lived continuously and exclusively at 5030 Cosby, which is within Precinct 7 of Harris County, Texas, from July 4, 1983 until [the date of trial, a period of more than one year]

The court then concluded that Bell satisfied the residency requirement of Tex.Elec. Code Ann. art. 1.05.

Appellant contends that it was error for the trial court to find that Bell met the residency requirement for candidacy when she admitted her ineligibility in a sworn statement in a public record, the E.E.O.C. complaint form. In support of this contention, appellant cites Garcia v. Carpenter, 525 S.W.2d 160 (Tex.1975), and McClelland v. Sharp, 430 S.W.2d 518 (Tex.Civ.App.—Houston [14th Dist.] 1968; no writ.). Both cases are original mandamus proceedings in which the relators sought to compel election officials to place their names on the ballot. Neither case considered the point here at issue, namely, whether the factual ruling of the district judge, made after a contested hearing on the merits, was supported by sufficient evidence.

Appellant next contends that the trial court’s finding that Betty Brock Bell met the residence requirement for candidacy was against the overwhelming weight of the evidence presented at trial.

The standard which we must apply in this appeal from the denial of a permanent injunction is the same as in all civil cases in which the appellant raises a point of error asserting that the findings were so against the overwhelming weight and degree of the evidence as to be manifestly wrong and unjust. Harrison v. Chesshir, 159 Tex. 359, 320 S.W.2d 814 (1959). As required, we have considered and weighed all of the evidence in the case and do not conclude that the judgment was so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellant’s three points of error are overruled.

The judgment of the trial court is affirmed. In view of the fact that ballots for the general election have already been printed and absentee ballots have been issued, no motion for rehearing will be entertained.


author: J. CURTISS BROWN, Chief Justice.

text:
    A. Behrooz RAMESH et al., Appellants, v. Gerald A. JOHNSON et al., Appellees.
    No. A14-83-856-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Nov. 1, 1984.

      B. Edward Williamson, Houston, for appellants.
    Daniel F. Shank, Houston, for appellees.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is an action for broker’s commissions by Gerald A. Johnson (Johnson or appellee) against A. Behooz Ramesh (Ram-esh or appellant), a buyer of real estate. The trial court entered judgment for $28,-000 in favor of appellee Johnson (the broker). Ramesh asserts two points of error on appeal, both of which challenge the application by the trial judge of the law of “procuring cause” to the facts of the case. We affirm.

The facts are largely undisputed. In January of 1979, Ramesh asked appellee Johnson to find an apartment complex in Houston with which Ramesh could effectuate a tax-deferred exchange of real estate. Ramesh had already contracted to sell an apartment complex in Dickinson, Texas which would serve as the “front end” of the exchange. His broker for the Dickinson transaction was Mr. Eugene Rushton.

Johnson succeeded in locating an apartment complex called the Alta Vista apartments, then owned by the Municipal Engineering Company (Municipal). After a period of negotiations, Johnson brought Ram-esh and Municipal together on terms under which Ramesh would pay a $532,000 purchase price for the apartments and $28,000 in commissions to Johnson “at closing.” This agreement was reduced to writing in a contract dated March 29, 1979.

The contract granted the buyer the right to rescind the transaction if, on physical inspection of the apartments, he found them unsatisfactory. Dr. Ramesh conducted such an inspection and found that the roof of the complex was in need of repair.

Concerned that the total purchase price, and especially his immediate cash outlays, should reflect the cost of roof repairs to him, Ramesh asked Johnson to submit an offer to Municipal lowering the purchase price from $532,000 to $500,000. One effect of this new offer, if accepted, would have been to lower Johnson’s commission.

Johnson did not carry through with this offer. He did, however, draft a letter on behalf of Ramesh rescinding the original contract according to the terms of the inspection clause. Appellant signed the letter, which Municipal received and accepted.

Almost immediately thereafter, and without Johnson’s knowledge, Ramesh contacted Eugene Rushton, the broker for the Dickinson transaction, and asked him to submit a $500,000 offer to Municipal which provided for a $10,000 commission to Rush-ton. Rushton did so, and the offer was rejected by Municipal, as was a later offer of $510,000.

A sale was finally consummated on April 18, 1979, one week after the signing of the letter terminating the first contract. The purchase price under the final agreement was $532,000 payable under a split financing structure (partly an assumption of Municipal’s indebtedness, partly a new note payable to Municipal).

This differed from the original (March 29) contract in that the original contract contemplated a unified “wraparound” note payable over a longer term, and at slightly higher interest, than the two notes later agreed upon. Thus Ramesh assumed a significantly lower overall interest obligation under the second contract. Ramesh agreed to pay Eugene Rushton $10,000, only $2,000 of which was in cash, for Rush-ton’s role in the post-termination negotiations.

The jury’s findings based on the above facts can be summarized as follows:

1) that appellee had been the efficient, procuring cause of the purchase by Ramesh of Alta Vista;
2) that Ramesh had not terminated the original contract in bad faith in order to deprive appellee of a commission;
3) that the terms of the original (March 29) contract and those of the April 18 contract were not substantially the same;
4) that appellee had not abandoned or waived his right to a commission.

Appellant contends in his first point of error that even with a finding by the jury that the broker was the procuring cause of the purchase, he is not entitled to a commission because the contract of March 29, having been terminated, does not satisfy the statutory requirement of a writing. While it is true that Art. 6573a, § 20(b) requires that an action by a broker for commission must be founded on a written agreement, we believe that the contract of March 29 fully meets appellee’s burden under the statute.

Appellant urges us to rule that a broker’s right to a commission hinges on his continued employment through the time of the final consummation of the purchase. This contention is contrary to well-established Texas law. Goodwin v. Gunter, 109 Tex. 56, 185 S.W. 295, 296 (Tex.1916); Volkmann v. Wortham, 189 S.W.2d 776, 779 (Tex.Civ.App.—San Antonio 1945, writ dism’d); McPherson v. Osborn, 475 S.W.2d 804 (Tex.Civ.App.—Amarillo 1971, no writ); Kelley v. Dunn, 620 S.W.2d 825, 829 (Tex.Civ.App.—Tyler 1981, no writ); Fuess v. Mueller, 630 S.W.2d 715, 717 (Tex.App.—Houston [1st Dist.] 1982, no writ).

The validity of a written agreement under Art. 6573a § 20(b) is to be determined as of the time of procurement, not consummation. Unless otherwise agreed, the broker has satisfied the statutory requirement of a writing and is entitled to a commission according to the contract if, while it is in force, he procures a seller from whom his client directly makes a purchase on terms satisfactory to himself, though different from those limited to the broker. Fuess v. Mueller, 630 S.W.2d 715, 717 (Tex.App.—Houston [1st Dist.] 1982, no writ). In the instant case such procurement is evidenced by both the March 29 contract which, while it was in force, bound Municipal to sell, and the April 18 contract by which Ramesh directly purchased the property.

Where, as here, the requirements of a procurement and a writing have been satisfied, the courts have regularly treated the broker’s rights under the contract as continuing in existence for a reasonable time after its termination by mutual rescission of the purchaser and owner so as not to deprive the broker of the commission he has earned. See, e.g., Fuess v. Mueller, 630 S.W.2d 715, 717-8 (Tex.App.—Houston [1st Dist.] 1982, no writ) (17 days); Stitt v. Royal Park Fashions, 546 S.W.2d 924, 926-7 (Tex.Civ.App.—Dallas 1977, writ ref’d n.r.e.) (the entire duration of an 8-year lease where commission was payable concurrently with rentals); Zeller v. Chipman, 474 S.W.2d 755, 756-8 (Tex.Civ.App.—San Antonio 1971, no writ) (24 days; court remanded case on other grounds); Cass v. Hurst, 329 S.W.2d 450 (Tex.Civ.App.—San Antonio 1959, no writ) (5 months; reversal of a summary judgment in favor of owner); Morgan v. Letellier, 677 S.W.2d 165 (Tex.App.—Houston [1st Dist.] 1984, writ requested) (3 months). Cf. Edwards v. Parker, 438 S.W.2d 141 (Tex.Civ.App.—Dallas 1969, no writ) (delay in excess of one year precludes recovery by broker); Maberry v. Julian, 479 S.W.2d 770 (Tex.Civ.App.—Dallas 1972, no writ) (2 years delay precludes recovery).

In the present case only a week separated the termination of the March 29 contract and the consummation of the purchase. We therefore believe these facts fall within the group of cases which extend the duration of the broker’s rights.

Appellant further contends, however, that the March 29 contract was subject to a condition and, that condition not having been met, appellee is not entitled to a commission. We agree with appellant that where the parties to a contract make the payment of a commission expressly contingent on a closing or other event, and that event does not occur, no obligation exists to pay the commission. This rule, however, is inapplicable to the present case.

The phrase in the March 29 contract making the commission payable “at closing” did not, in our opinion, make the commission contingent on consummation, but instead merely fixed a time for payment. The court in McPherson v. Osborn, 475 S.W.2d 804 (Tex.Civ.App.—Amarillo 1971, no writ) faced precisely this question and interpreted “at closing” exactly as we do. In McPherson, as in this case, the defendant himself admitted that the closing fixed a time for payment. McPherson, 475 S.W.2d at 807.

Finally, this case is unlike those cases cited by appellant in which the broker had not earned a commission because a condition necessary to the formation of a contract failed to occur. Here, a valid contract existed between purchaser and owner which adequately evidenced a successful procurement as found by the jury. Accordingly, appellant’s first point of error is overruled.

In his second point of error appellant challenges the form in which the instruction regarding “procuring cause” was given to the jury.

The trial court, in submitting special issue number one, defined procuring cause as follows:

“that cause which in a natural and continued sequence, unbroken by any new independent intervening cause, produces the event without which it would not have occurred.”

The court thereupon defined “new independent intervening cause”:

“the act or omission of a separate and independent agency not reasonably foreseeable by a party exercizing reasonable care, which destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question, and thereby becomes the immediate cause of such occurrence.”

Appellant contends that the trial court erred in excluding foreseeable intervening events or causes from its definition of “new and independent intervening cause.” Specifically he states that the court’s definition of “new and independent intervening cause” prevented the jury from considering the good-faith termination by Ramesh of the original contract and his subsequent purchase of Alta Vista through another broker as elements constituting a new and independent intervening cause of the purchase. We disagree.

The period between April 10 and April 18 was marked by three major events: Ramesh’s discovery of the weaknesses in the roof, the termination of the original contract, and the re-negotiation and final consummation of the purchase by Ramesh through Rushton. The need for roof repairs cannot be regarded as an intervening cause of the purchase. On the contrary, it stood in the way of the purchase. Similarly, a termination of a contract of purchase cannot be a cause of the purchase under any conceivable jury instruction. Thus the only real issue presented here is whether the jury was afforded sufficient opportunity to consider the role of the second broker in the transaction.

In Zeller v. Chipman, 474 S.W.2d 755 (Tex.Civ.App.—San Antonio 1971, no writ), the court reversed an award of a broker’s commission based on an improper jury instruction. The Zeller trial court had baldly asserted in its instruction regarding procuring cause: “[I]t is immaterial that the transaction is finally consummated by another broker.” (Emphasis added). This constituted reversible error because it wholly prevented the jury from assessing the role of the second broker in the transaction.

Zeller is distinguishable from the present case. The first half of the definition of procuring cause given below imposed a stiffer test for appellee to meet than the definition given by the Zeller trial court. The definition in Zeller only required the broker to have been a sine qua non of the transaction to be considered its procuring cause. Here, as noted above, the definition went much further, requiring the broker to have been a sine qua non of the transaction and also to have actually produced the event.

Irrespective of what incidental effect the definition of intervening cause given below may have had on the jury, then, the definition of procuring cause literally forced the jury to assess the role of the second broker, since under this definition either appel-lee produced the event or Rushton did. Stated conversely, the jury, by finding ap-pellee to have produced the event (the transaction), impliedly found an absence of intervening causes, foreseeable or not. We therefore, do not believe that the trial court’s instruction on procuring cause “was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the ease.” TEX.R.CIV.P. 434; Knight v. Hicks, 505 S.W.2d 638, 641 (Tex.Civ.App.—Amarillo 1974, writ ref'd n.r.e.). Accordingly, appellant’s second point of error is overruled, and the judgment of the trial court is affirmed.

      . TEX.REV.CIV.STAT.ANN. art. 6573a, § 20(b) provides as follows:
      An action may not be brought to a court in this state for the recovery of a commission for .the sale or purchase of real estate unless the promise or agreement on which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged or signed by a person lawfully authorized by him to sign it. (Emphasis added).

      . E.g. Roquemore v. Talley, 451 S.W.2d 319 (Tex.Civ.App.—Dallas 1970, writ refd n.r.e.) (failure to gain cooperation of City of Dallas left contract unformed): Toland v. Kaliff, 435 S.W.2d 260 (Tex.Civ.App.—San Antonio 1968, no writ) (no contract had been formed): In O’Boyle v. DuBose-Killeen Properties, 430 S.W.2d 273 (Tex.Civ.App.—Dallas 1968, writ refd n.r.e.), the broker had not procured a buyer ready to purchase on terms acceptable to the seller. Likewise Bayer v. McDade, 610 S.W.2d 171 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ refd n.r.e.). In Taylor v. Neal, 467 S.W.2d 197 (Tex.Civ.App.—Amarillo 1971, writ dism'd), the contract was made contingent on the consummation of another contract involving the same seller. The latter contract was never completed because it in turn was contingent on an event which never occurred. Friedlander v. Christianson, 320 S.W.2d 404 (Tex.Civ.App.—Houston 1959, no writ) (involved á listing agreement, hot a valid contract between purchaser and owner.)

      . The Zeller trial court defined procuring cause as follows:
      "[S]uch act or acts, if any, in bringing the buyers and sellers together in connection with the sale of the property in question which so far constructed to bringing about the sale that
        but for such act or acts ... the sale would not have been consummated." (Emphasis added) Zeller v. Chipman, 474 S.W.2d at 755.


author: DIAL, Justice.

text:
    Gregory Lee LABARGE, Appellant, v. The STATE of Texas, Appellee.
    No. 04-81-00296-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 7, 1984.

      Richard Langlois, San Antonio, for appellant.
    Bill White, Dist. Atty., Susan Reed, Hi-pólito Canales, Jr., Asst. Dist. Atty., James L. Bruner, Criminal District Attorney’s Office, San Antonio, for appellee.
    Before CADENA, C.J., and CANTU and DIAL, JJ.
   OPINION

DIAL, Justice.

In a jury trial presided over by the Honorable H.F. “Hippo” Garcia, appellant was convicted of murder. Punishment was assessed by the jury at seventy-five years confinement. After the trial, but before sentencing, Judge Garcia was appointed to the United States District Court and resigned as a State District Judge. The Honorable Roy R. Barrera, Jr., was appointed by the Governor to succeed Judge Garcia. Judge Barrera pronounced sentence on the appellant.

Judge Barrera had previously served as an Assistant District Attorney, and a question was raised as to whether or not he might have been of counsel for the State in some of the early stages of the prosecution. TEX. CODE CRIM.PROC.ANN. art. 30.01 (Vernon 1966). The appeal was abated to afford appellant an opportunity to develop the record on that issue. We have reviewed the supplemental record and find no evidence that Judge Barrera was ever of counsel for the State in this cause.

Appellant brings eleven grounds of error. We will discuss the facts as they apply to the various points.

Ground of error one concerns appellant’s confession. The relevant facts are not here disputed. While in the custody of Texas Ranger Adolfo Cuellar, appellant was advised of his pertinent constitutional rights, and he indicated he wished to give a statement. However, in response to a certain question, appellant said he would not answer until he saw his attorney. The ranger ceased all interrogation. When appellant was later in the custody of Deputy Sheriff Dalton Baker, he told Baker he wanted to talk about the facts in the case. After being booked in jail, the appellant told Baker he wanted to make a statement. The appellant was again given his “Miranda Warnings,” and he then gave a written confession.

Appellant’s contention is that the confession should have been inadmissible since the right to counsel had been invoked before the confession was obtained. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 1884, 68 L.Ed.2d 378, 386 (1981), held that an accused, having expressed his desire to deal with police only through counsel cannot be interrogated without counsel, “unless the accused himself initiates further communication, exchanges, or conversations with the police.” Since the record indicates that the appellant initiated the further conversations and was warned again, this constituted an intelligent and knowing relinquishment of his right to counsel. Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 395-96, 74 L.Ed.2d 214 (1983); Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405, 411-12 (1983). Ground of error one is overruled.

In ground of error number two appellant contends that the trial judge erred in failing to file written findings on the voluntariness of the confession. Judge Garcia had heard evidence on a motion to suppress the confession and then denied the motion. He resigned his office without filing the findings of fact required by TEX.CODE CRIM. PROC.ANN. art. 38.22, § 6 (Vernon 1979).

In ground of error number three appellant complains of the failure of the trial court to rule on his objections to the appellate record. Appellant specifically objected to the omission of the court reporter’s transcription of the hearing on the motion to suppress the confession.

In a supplement to the record, the State filed a transcript of the hearing on the motion to suppress and findings of fact and conclusions of law regarding that hearing prepared by Judge Barrera.

Appellant’s main objection appears to be the late supplementing of the record, relying upon Lynch v. State, 502 S.W.2d 740 (Tex.Crim.App.1973). Lynch recites the rule that the Court of Criminal Appeals will not consider belated transcripts containing material that should have been included in the original record but was omitted by oversight or non-objection by the accused or the State. Id. at 741. The opinion recognized the exception to the rule in Clewis v. State, 415 S.W.2d 654 (Tex.Crim.App.1966) and Davis v. State, 499 S.W.2d 303 (Tex.Crim.App.1973), both instances where belated transcripts reflecting trial court’s findings of voluntariness of the confession were considered by the Court of Criminal Appeals. If supplemental material represents a finding, conclusion, or order by a trial judge, the appellate court should consider the material. Otherwise the parties would be penalized for the omission by the trial judge himself. Lynch, 502 S.W.2d at 741.

There is ample authority for the successor of a trial judge who resigns or dies in office to file findings of fact and conclusions of law. Fortenberry v. Fortenberry, 545 S.W.2d 40, 43 (Tex.Civ.App.—Waco 1976, no writ); Lykes Brothers Steamship Co. v. Benben, 601 S.W.2d 418, 420-22 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.); TEX.REV.CIV.STAT.ANN. art. 2248 (Vernon 1971); TEX. R.CIV.P. 18. We realize these are civil cases applying civil rules and civil statutes. The Code of Criminal Procedure makes no provision for this particular circumstance; therefore, the Rules of Civil Procedure shall govern these proceedings. TEX.R.CRIM.APP.P. 211.

Appellant’s contention that it was error for the trial court to not rule on his objections to the record is without merit. If material is improperly omitted from the record, the remedy is an abatement of the appeál or a remand to the trial court to correct the record. Chancelor v. State, 508 S.W.2d 638, 640 (Tex.Crim.App.1974). The record now contains the material that appellant maintained should have been included. Grounds of error two and three are overruled.

Grounds of error four, five and six, relate to questions asked the appellant on cross-examination. Appellant contends that the questions interjected extraneous offenses, hearsay, and prejudice against him. Suffice to say that the questions were legitimate inquiries into any possible motive that the appellant might have had for shooting the deceased. The prosecution may always offer evidence to show motive for the commission of an offense because it is relevant as a circumstance tending to prove the commission of the offense. Rodriguez v. State, 486 S.W.2d 355, 358 (Tex.Crim.App.1972). The seventh ground of error objects to the trial court refusing a mistrial when a witness testified about a card he found on the body of the deceased. Appellant’s objection was that the card contained hearsay. The objection was sustained and the jury was instructed to disregard the answer of the witness. The jury is generally entitled to know all the circumstances surrounding a homicide under the broad exception of res gestae. If the card found at the scene did not come within that exception, the instructions by the trial court would have cured any possible error. Grounds of error four through seven are overruled.

Appellant’s last four grounds of error pertain to the prosecutor’s jury argument. On more than one occasion, the prosecutor gave her opinion that on cross-examination the appellant was not telling the truth. Objections were sustained and the court gave limiting instructions. During argument the prosecutor also told the jury that she believed the homicide was a “set up.” In this instance the objection was overruled. The prosecution is entitled to draw reasonable deductions based on the evidence in its summation before the jury. Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973). Any of the arguments that did not fall in this category were nevertheless cured by the prompt instructions from the judge. Simpkins v. State, 590 S.W.2d 129, 136 (Tex.Crim.App.1979). Grounds of error eight through eleven are overruled.

No error being shown, the judgment is affirmed.


text:
    Mary C. GILL, Appellant, v. GUY CHIPMAN COMPANY, Appellee.
    No. 04-83-00027-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 7, 1984.
    Rehearing Denied Dec. 12, 1984.

      Henry W. Christopher, Jr., Johnson & Christopher, San Antonio, for appellant.
    Calhoun Bobbitt, San Antonio, for appel-lee.
    Before CADENA, C.J., and CANTU and REEVES, JJ.
   OPINION

REEVES, Justice.

This is a suit to enforce a noncompetition clause in an employment contract. Guy Chipman Company, employer, brought suit against Mary C. Gill, employee, alleging a breach of the noncompetition clause. Trial was to the court which rendered judgment for the employer for the sum of $8,000.00 plus attorneys’ fees. Findings of fact and conclusions of law were entered by the trial court.

Appellant argues that the trial court erred in entering its conclusions of law numbers one through four,

That paragraph XV[] the employment agreement of September 20, 1979, is reasonably restricted as to time and area and is reasonably necessary to the protection of the business and goodwill of Plaintiff, is not unconscionable, and is, therefore, not void as an unreasonable restraint of trade, or otherwise, but is valid and enforceable.
That Defendant has breached paragraph XV of said employment contract by engaging in competition with Plaintiff in its existing market area of Kendall County and Northwest Bexar County, Texas, without payment to Plaintiff of Eight Thousand Dollars ($8,000.00), as specified in said agreement.
That Defendant is obligated to pay to Plaintiff the sum of Eight Thousand Dollars ($8,000.00), as specified in the employment agreement, as a consequence of Defendant’s engaging in competition with Plaintiff in its existing marketing area.
That Plaintiff is entitled to recover of and from Defendant Plaintiff’s reasonable attorneys’ fees in connection with the trial and appeal of this suit,

because (i) there was no evidence that the defendant engaged in any acts of competition with plaintiff that could be classified as “unfair competition” and could, therefore, be lawfully restrained, and (ii) there was no consideration for the noncompetition agreement.

In determining whether there was any evidence of probative force to sustain the trial court’s findings, this court is required to consider only that evidence favorable to the finding and the judgment rendered thereon and to disregard all evidence to the contrary. The judgment of a trial court will not be set aside if there is any evidence of a probative nature to support it, and this court cannot substitute its findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court’s findings. Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607, 609 (Tex.1979).

The Guy Chipman Company (hereinafter referred to as “Chipman”), is a real estate brokerage firm involved in residential, farm and ranch and commercial real estate. Its marketing area includes the north side of Bexar County and Kendall County. The company has several branch offices within the marketing area, each staffed by a manager whose functions include recruiting candidates for the sales force, selection of sales agents, management, training, motivation and goal-setting of the sales force.

Appellant applied for a sales agent position with Chipman’s branch office in Boerne, in April, 1979. She was not licensed at the time but attended school and was trained by Chipman. Appellant worked as a sales agent until September, 1979, when she was selected as the branch office manager. The general manager for Chipman explained the manager’s employment contract with the noncompetition clause to appellant and she voluntarily signed the contract. The covenant not to compete restricted competition within the marketing area of Chipman for fifteen months or provided for a payment of $8,000.00.

An article was run in the Boerne newspaper announcing her appointment as manager and her name and picture were subsequently printed in weekly advertisements.

To train her for her position of manager, Chipman paid for an extensive management training course held by a consulting firm in Detroit, Michigan. Chipman is the exclusive real estate recipient, in this particular marketing area, of this program. Appellant also received inside training with the training director for Chipman whose sole job is one-on-one training of the managers. On-going training was received in weekly managers’ meetings, conventions and seminars held by the Texas Association of Realtors, and a series of taped lectures. Chipman presented evidence at trial that the out-of-office training for appellant cost Chipman $5,271.27.

As a manager, appellant was supplied with guidebooks and manuals for the training of her sales agents. This information was developed by and for the use of Chip-man. Appellant received a manual of forms, some of which were developed by attorneys for Chipman and are unique to the company. As manager, appellant reviewed all paperwork of her sales agents and was given computer print-outs of the names of all customers and prospects generated by her branch office.

Appellant was exposed to the financial operations of Chipman, including arrangements for commissions among sales agents, salaries of all personnel, and profit and loss statements of the company.

On November 18, 1981, appellant informed the company that she was resigning to take a job with Topatio Springs Development as an on-site sales agent. Because Chipman did not handle any of the real estate in this development, it did not attempt to enforce the covenant.

Evidence was presented that appellant, while still with Chipman, contacted Gene Canavan about a local real estate company in Chipman’s marketing area which she had learned was for sale. Appellant arranged a meeting between Canavan and the owner of this real estate company. An offer was made and Canavan took over this company in November, 1981. Appellant was offered the job as manager for Canavan & Associates which she accepted January, 1982.

The manager for Chipman wrote a letter to appellant informing her that he felt she was now in violation of the covenant and requested that they meet to discuss the problem. Appellant did not respond.

Canavan was aware of the covenant in appellant’s contract with Chipman, but appellant had told him there would be no problem. Canavan testified that he hired appellant because he felt that the training she had received from Chipman was strong and she would therefore be an asset to his company. Canavan testified appellant made copies of all Chipman’s forms and had “brought her whole file” to the new agency. Canavan and appellant discussed hiring one of Chipman’s secretaries.

Chipman later learned that appellant had left Canavan & Associates and had started a real estate company with her husband, Jack Gill. Jack Gill had no previous real estate experience. The office of Jack Gill Company (hereinafter referred to as “Gill”), was opened March 28, 1982, with appellant and her husband each owning one-half of the stock. The office was located 500 feet from and on the same side of the street as Chipman. Gill deals in the same type of real estate as Chipman and is in direct competition with it.

The attorney for Chipman was contacted and wrote appellant at least two letters expressing the belief that she was in violation of the covenant. Appellant’s attorney responded with a letter stating that his client had no intention of complying with the covenant based on his opinion that such covenant was an illegal restraint of trade. Chipman then filed this lawsuit.

An agreement on the part of an employee not to compete with his employer after termination of the employment is in restraint of trade and will not be enforced in accordance with its terms unless the same are reasonable in view of the circumstances of the particular case. Where the public interest is not directly involved, the test for determining the validity of the covenant as written is whether it imposes upon the employee any greater restraint than is reasonably necessary to protect the business and good will of the employer. Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951 (1960).

This court, in Hospital Consultants, Inc. v. Potyka, 531 S.W.2d 657 (Tex.Civ.App.—San Antonio 1975, writ ref'd n.r.e.), had occasion to discuss some important purposes sought to be achieved by an employee restraint. These include the interest in retaining customers whenever the employee’s relationship with customers is such that there is a substantial risk that the employee may be able to divert all or part of the employer’s business: the important considerations being the frequency of the employee’s contacts with customers and whether they are the employer’s only contacts or relationships with such customers; the locale of the contact; and the nature of the functions performed by the employee. Id., at 661. Another important purpose sought to be achieved by an employee restraint is preventing valuable business information obtained by employees from being used by a competitor, the so-called “trade secrets” doctrine, including customer lists, sales or trade techniques, new methods, prospect lists, secret processes, corporate good will or commercial procedures. Id., at 662.

The appellant agrees the covenant not to compete is reasonable as to term of duration (15 months) and area, but argues that it is unreasonable as to the scope of the acts restrained.

However, appellant does not directly challenge findings of fact by the trial court which state Chipman has developed its own business techniques and methods, many of which are unique to it; that all such methods and techniques were imparted to appellant in connection with her employment as office manager; that as manager appellant had access to intimate knowledge of Chipman’s sources of business, actual and potential, as well as financial data regarding the company; and that the Jack Gill Company made use of Chip-man’s business forms and performed services for former clients of Chipman.

Appellant, as manager, was in a position of trust with Chipman. She actively sought the position with the company and was aware that her new contract would include the noncompetition clause. The contract specifically pointed out that the “employee, in accepting and agreeing to be bound by [the] covenant, recognizes the extensive and unique management training and other benefits offered to employee at considerable employer expense.”

Chipman extensively trained prospective managerial employees in all of its methods and techniques of operating a real estate office, recruiting, training and motivating sales agents, making available to, and instructing the manager in the use of exhaustive real estate form manuals unique to Chipman and developed over many years, making such managers privy to Chipman’s customer lists and financial arrangements between Chipman, its agents and employees, and, in general, equipping such managers to competently and professionally operate and run a competing real estate agency of their own, imparting to them training and knowledge specifically useful to them or a competitor against Chipman. The body of information acquired by appellant would not have been available to appellant except by virtue of her being a manager with Chipman.

As a matter of law, once it is determined that confidential business information has in fact been imparted to an employee, restrictive covenants have been upheld as a valid means of protecting the employer’s business. See Arrow Chemical Corp. v. Pugh, 490 S.W.2d 628 (Tex.Civ.App.—Dallas 1972, no writ); Park v. Essa Texas Corp., 315 S.W.2d 197 (Tex.Civ.App.—Austin 1958, writ ref’d n.r.e.). In this case, the trial court found that the covenant was reasonably necessary to the protection of appellee’s business and goodwill and that appellant had breached such covenant. When viewed in the light most favorable to the trial court’s judgment, we hold that there was evidence of probative force to support the trial court’s findings.

Appellant argues there was no consideration for the noncompetition agreement. This argument is without merit. The covenant not to compete was part of the employment contract signed at the inception of appellant’s employment as manager with Chipman. The employment itself and the numerous financial benefits flowing from the position as well as opportunities for training and advancement provide consideration to support the contract. This is not a case where the covenant not to compete was signed after employment began or upon termination of employment. See Chenault v. Otis Engineering Corp., 423 S.W.2d 377, 381-82 (Tex.Civ.App.—Corpus Christi 1967, writ ref’d n.r.e.).

Appellant seizes upon the following language in the noncompetition covenant to argue the covenant lacks consideration. “This covenant on the part of the Employer shall be construed as an agreement independent of any other provisions of this agreement....” Appellant interprets this provision to negate use of the remaining employment contract provisions as consideration for the covenant.

To construe this language as Gill contends would distort the plain meaning of the covenant not to compete. The fact that the covenant was expressed as an independent covenant does not mean there must be particular consideration to support it. The covenant was written as an independent promise so that a breach by Chipman of another contract provision would not release appellant from her covenant not to compete. See generally, 14 TEX.JUR.3RD Contracts § 213 (1981).

Appellant also contends that the trial court erred in entering its finding of fact number twenty-six,

That the Plaintiff suffered substantial damage as a result of competition by Defendant, although such damages are not susceptible to calculation with mathematical certainty

because (i) there was no evidence of probative force to establish that any damages were suffered, or (ii) in the alternative, the evidence was factually insufficient to establish that the appellee suffered any damages as a result of appellant’s competition.

We review the trial court’s finding under the no evidence standard previously stated. If some probative evidence exists, we turn next to assessing the sufficiency of the evidence. The trial court should not be overturned unless, considering the record as a whole, such finding can be said to be so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Miller v. Puritan Fashions Corp., 516 S.W.2d 234, 239 (Tex.Civ.App.—Waco 1974, writ ref’d n.r.e.); Murray v. Murray, 515 S.W.2d 387, 390 (Tex.Civ.App.—Waco 1974, no writ).

Chipman offered evidence that its business had declined since Gill opened its office and that Gill is a successful real estate agency, attributable at least partly to appellant’s training and past experience. Appellant took with her and imparted to the Canavan agency and then to her own company, the confidential business techniques and methods of Chipman. There was evidence that former clients were now with Gill. In cases where there has been a breach of a covenant not to compete, the amount of actual damages is rarely certain. See Mayhall v. Proskowetz, 537 S.W.2d 320 (Tex.Civ.App.—Austin 1976, writ ref’d n.r.e.).

The trial court, although finding that damages were established, found that such damages were not susceptible to calculation with mathematical certainty. In such cases, a party is not denied all right of recovery but the amount of damages is fixed by the fact finder in the exercise of sound discretion. See Texas Sanitation Co., Inc. v. Marek, 381 S.W.2d 710, 715 (Tex.Civ.App.—Corpus Christi 1964, no writ). We hold that the finding of the trial court as to damages was supported by the evidence and was not against the great weight and preponderance of the evidence.

We find no reversible error. The judgment of the trial court is affirmed.

      . Article V.

        Restrictive Covenants

        Competition. Upon termination of her employment, whether by termination of this agreement, by wrongful discharge, or otherwise, employee shall not, without prior consent by employer, directly or indirectly, within the existing marketing area of the employer in the state of Texas or any future marketing area of the employer begun during the employment under terms of this agreement, enter into or engage generally in direct competition with the employer in the business of selling, leasing or managing real estate, either as an individual on her own part or as a partner or joint venturer or as an employee or agent for any person, or as an officer, director or shareholder or otherwise, for a period of 15 months after the date of termination of her employment hereunder. The Employee, in accepting and agreeing to be bound by this covenant, recognizes the extensive and unique management training and other benefits offered to Employee at considerable Employer expense. This covenant on the part of the Employee shall be construed as an agreement independent of any other provisions of this agreement; and the existence of any claim or cause of action of Employee against. Employer, whether predicated on this agreement or otherwise, shall not constitute a defense to the enforcement by Employer of this covenant. However, this restrictive covenant will be can-celled and the Employee shall have the rights to compete against Employer during the 15 months after termination of this agreement upon paying Employer $8,000 cash or upon the payment of $3000 cash and the execution of Employee of a Promissory Note in the principal amount of $5,000 payable to Employer, to be due and payable in two annual installments of $2,500 each plus interest at 10% per annum.

      . There is no paragraph XV in the employment contract. We will presume the trial court meant paragraph V since this is the only paragraph dealing with restricting competition.

      . No injunction or restraining order issued in this case.


author: TIJERINA, Justice. CADENA, Chief Judge,

text:
    Margaret GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 04-83-00165-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 7, 1984.

      Rudy Zepeda, Sari Antonio, for appellant.
    Sam Milsap, Jr., Elizabeth H. Taylor, Thomas Maspero, Edward F. Shaughnessy, III, Asst. Crim. Dist. Attys., San Antonio, for appellee.
    Before CADENA, C.J., and REEVES and TIJERINA, JJ.
   OPINION

TIJERINA, Justice.

This is an appeal from a conviction for murder. TEX.PENAL CODE ANN. § 19.-02(a)(1) (Vernon 1974). The jury found appellant guilty as charged and the trial court assessed punishment at thirty years’ confinement.

In her first ground of error, appellant alleges that the trial court erred in failing to grant her motion for instructed verdict at the close of the State’s case in chief. Appellant did not rest with the State, but elected instead to testify in her own defense. By placing defensive evidence before the jury, appellant has waived any appellate review of the trial court’s action on her motion for instructed verdict. Kuykendall v. State, 609 S.W.2d 791, 794 (Tex.Crim.App.1980); Seals v. State, 634 S.W.2d 899, 909 (Tex.App.—San Antonio 1982, no writ). Appellant’s first ground of error is overruled.

Appellant complains of insufficient evidence to prove the cause of death and that the deceased was the infant male child of Sandra Gonzales; appellant further complains of insufficient evidence to establish the corpus delicti. TEX.PENAL CODE ANN. § 19.02 provides in pertinent part, viz:

(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death of an individual;

In this case the indictment charged as follows:

[O]n or about the 20th day of December, A.D. 1976, Margaret Gonzales did then and there intentionally and knowingly cause the death of an individual, an infant male child of Sandra Gonzales, the name of which said infant is to the Grand Jurors unknown, hereinafter called complainant, by burying the said complainant in the ground, thereby causing the said complainant to be asphyxiated....

Thus, the State’s burden was to prove that appellant intentionally and knowingly caused the death of the infant male child of Sandra Gonzales.

In reviewing a sufficiency of the evidence question, we determine, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981). In this ease the record reflects direct and circumstantial evidence establishing the essential elements of the offense. Sandra testified that she was between six and seven months pregnant when she gave birth to a baby and that her step-grandfather, Alfred Flores, severed the umbilical cord. She heard the baby cry and subsequently heard appellant tell Anna and Regina, “Go to the back and dig a hole and put it in there.” Her sister, Anna, testified that she was instructed by her step-grandfather to dig a hole in the back yard, and that after she dug the hole she reentered the house and witnessed that Sandra had given birth to a baby. Anna stated that appellant and the step-grandparents were all present, that she saw the step-grandfather sever the umbilical cord, and that she was given a bundle and told to bury it. She said she opened the bundle and saw a baby boy, alive and crying. The baby was placed in the hole. Subsequently, Anna verified the site where the remains of the infant were uncovered as the same site where she buried the baby.

Stanley Rhine, a forensic anthropologist, testified that State’s exhibit number three containing the skeletal remains uncovered from the grave site were those of a baby six to six-and-a-half months gestation. Dr. Corrie May, a forensic pathologist, testified she was personally present when the remains of the baby were exhumed and took custody of the evidence. Dr. May testified that she determined the cause of death to be asphyxia and homicide. The following testimony is relevant:

Q: How were you able to make this determination?
A: It was based on the results of the investigation, the historical information presented to me with the skeleton, the lack of any other features in the skeleton which might lean me towards another decision. It was also based on my personal experience at the scene of the excavation, and was the product of the entire investigation.

In Combs v. State, 643 S.W.2d 709, 717-18 (Tex.Crim.App.1982) (Opinion on State’s Petition for Discretionary Review), the medical doctor testified concerning his conclusions as to the cause of death, which were based on factual matters contained in the autopsy report. The court concluded that the doctor’s testimony together with the other evidence established sufficient evidence to support the conviction.

Corpus delicti in a homicide can be proved in the same manner as in any other crime. Two things must be established: (1) a criminal act; and (2) the defendant’s agency in the production of the criminal act. Williams v. State, 629 S.W.2d 791, 796 (Tex.App.—Dallas 1981, pet. ref’d). In the instant ease, the body of the deceased was found and later identified by circumstantial evidence, including the testimony of Sandra and Anna Gonzales and the expert witnesses. Anna testified that she opened the bundle given to her and saw a baby boy alive and crying. She proceeded to bury the baby and covered it with dirt; thereafter the baby stopped crying. Corpus delicti may be established by circumstantial evidence. Easley v. State, 564 S.W.2d 742, 749 (Tex.Crim.App.1978); Madden v. State, 344 S.W.2d 690, 692 (Tex.Crim.App.1961). It is not essential that every fact point directly and independently to the guilt of the accused, and the cumulative force of all the incriminating circumstances may be sufficient to support the guilty verdict. Sullivan v. State, 564 S.W.2d 698, 705 (Tex.Crim.App.1978) (On Motion for Rehearing). In Denby v. State, 654 S.W.2d 457, 464 (Tex.Crim.App.1983), the court discussed the new standard of review in circumstantial evidence cases: “[I]f the evidence supports an inference other than the guilt of the appellant, a finding of guilt beyond a reasonable doubt is not a rational finding.” In the case at bar, the evidence is sufficient to exclude every reasonable hypothesis but the guilt of appellant. Thus, we are of the opinion that the cumulative force of all the incriminating circumstances was sufficient for the jury rationally to find guilt beyond a reasonable doubt. Grounds of error two, three, and four are overruled.

In grounds of error five through seven, appellant alleges that both Sandra and Anna Gonzales were accomplice witnesses whose testimony was insufficiently corroborated. A conviction cannot be had upon the uncorroborated testimony of an accomplice. TEX.CODE CRIM.PROC. ANN. art. 38.14 (Vernon 1979).

There is no evidence that Sandra, the mother of the deceased infant, took part in the murder. Her mere knowledge that a crime was occurring did not make her an accomplice. Russell v. State, 598 S.W.2d 238, 249 (Tex.Crim.App.1980), cert. denied, 449 U.S. 1003, 103 S.Ct. 544, 66 L.Ed.2d 300 (1981); Arney v. State, 580 S.W.2d 836, 839 (Tex.Crim.App.1979). Neither did her failure to disclose the offense or her active concealment of it. Emmett v. State, 654 S.W.2d 48, 49 (Tex.Crim.App.1983); Brown v. State, 640 S.W.2d 275, 279 (Tex.Crim.App.1982). Sandra Gonzales was not an accomplice witness.

Anna Gonzales was twelve years old when she participated in the crime. A person may not be prosecuted or convicted for any act he committed when younger than fifteen years of age except perjury and motor vehicle offenses. TEX. PENAL CODE ANN. § 8.07 (Vernon Supp. 1984). One is not an accomplice witness unless he can be held criminally responsible for the offense with which the accused is charged. Harris v. State, 645 S.W.2d 447, 457 (Tex.Crim.App.1983); Carrillo v. State, 591 S.W.2d 876, 882 (Tex.Crim.App.1979). The court of criminal appeals has explicitly held that a child who is too young to be prosecuted cannot be an accomplice witness as a matter of law or fact. Komurke v. State, 562 S.W.2d 230, 233-34 (Tex.Crim.App.1978), overruled on other grounds, Cooper v. State, 631 S.W.2d 508, 514 (Tex.Crim.App.1982). Since Anna’s age at the time of the offense protects her from prosecution, she could not be an accomplice witness. Appellant’s fifth and sixth grounds of error are overruled.

Because neither Sandra nor Anna were accomplice witnesses, the corroboration requirement of TEX.CODE CRIM. PROC.ANN. art. 38.14 (Vernon 1979) is inapplicable. Accordingly, appellant’s seventh ground of error is overruled.

In her final ground of error, appellant contends that the trial court erred in charging the jury on the law of parties because the indictment did not allege that the appellant acted as a party. It is well settled that a trial court may charge on the law of parties even though there is no such allegation in the indictment. English v. State, 592 S.W.2d 949, 955 (Tex.Crim.App.1980), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1981); LeDuc v. State, 593 S.W.2d 678, 685 (Tex.Crim.App.1979); Pitts v. State, 569 S.W.2d 898, 900 (Tex.Crim.App.1978). Appellant’s eighth ground of error is overruled.

The judgment of the trial court is affirmed.

CADENA, Chief Judge,

concurring.

I agree that the conviction should be affirmed. However, I would not hold that the record establishes, as a matter of law, that Sandra was not an accomplice. Such holding is unnecessary since, even if she was an accomplice, her testimony is sufficiently corroborated by the testimony of Anna, who because of her age, cannot be characterized as an accomplice. Cooper v. State, 631 S.W.2d 508 (Tex.Crim.App.1982).