author: COLEMAN, Chief Justice (Retired).

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. MEDI-RENTS, INC., Appellee.
    No. D14-84-213-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 28, 1985.

      Brock C. Akers, Vinson & Elkins, Houston, for appellant.
    James P. Wallace, Jr., Sullins, Johnston, Rohrbach & Magers, Houston, for appellee.
    Before TUNKS, C.J. (Retired), COLEMAN, C.J. (Retired), and MILLER, J. (Retired).
   OPINION

COLEMAN, Chief Justice (Retired).

This is an appeal from a judgment awarding appellee, Medi-Rents, Inc., damages and attorney’s fees. The Travelers Insurance Company, appellant, appeals. We affirm.

This suit arises out of the rental of a medical device known as a transcutaneous nerve stimulator or micro-ceptor unit. There is evidence that the unit was rented by Medi-rents to Travelers on February 15, 1979, and delivered to Ms. Brinda Smith. Smith was a workers’ compensation claimant. Marie Campbell, an employee of Travelers, entered into the rental agreement on behalf of appellant. The bills for the rentals were sent to Travelers and were paid until December, 1979. The original rent invoice for the rental contained this statement:

“All equipment will automatically be re-rented on renewal date unless notified by customer of a pickup or conversion to sale.”

There was no agreement as to the method by which the “conversion to sale” could be accomplished.

There was testimony that in October of 1979 one of Travelers employees notified Medi-rents that Travelers wished to convert this rental agreement into a sale. Rental payments in excess of the purchase price had been made and the representative of the insurance company asked that a credit be allowed on the purchase price. No definite agreement was reached on this point and the following month, after Smith filed a lawsuit in the district court for her workers’ compensation, the insurance company stopped making payments for the rental. However, the micro-ceptor unit was not returned and Medi-rents continued billing the insurance company for the monthly rental until the rental exceeded a sum of $2,686. The purchase price of the unit was $550.

The workers’ compensation suit was settled and the insurance company agreed to “assume all responsibility” for the bills from Medi-rents, Inc. Medi-rents then demanded payment and an employee of the insurance company responded by letter stating that she was recommending that appellant’s claim department purchase the unit in question. Medi-rents replied that the unit could be purchased, but that the purchase would not affect appellant’s responsibility for the past due rent. This suit resulted.

The trial was to a jury which found that subsequent to the original rental of the micro-ceptor, Medi-rents, Inc. and Travelers Insurance Company agreed to change their arrangement from a rental agreement to a purchase agreement and that Travelers owed Medi-rents the sum of $445.50. The jury also found that Medi-rents, Inc. was entitled to $3,000 in attorney fees. Judgment was entered in accordance with the jury verdict.

Travelers alleges that the trial court erred in holding plaintiff’s petition stated a proper claim as a third party beneficiary; and awarding attorney’s fees to plaintiff; and in awarding excessive attorney’s fees to the plaintiff.

While Medi-rents pled a claim against Travelers as a third party beneficiary of the contract between Travelers and Ms. Smith’s settling the compensation claim, it also asserted a claim in the form of a sworn account based on a rental between Travelers and Medi-rents. This contract contained the option to purchase which the jury found Travelers had exercised. This finding by the jury has not been attacked. Since the trial court rendered a judgment based on the contract to purchase rather than on the theory of a third party beneficiary of the Worker’s compensation settlement, Travelers third point of error has no merit.

Article 2226, REV.CIV.STAT., authorizes the recovery of attorney’s fees by a plaintiff who sued on a sworn account or whose claim is based on a contract. The record contains a stipulation, signed by the attorneys for both parties, that “Travelers received written notice of this claim more than thirty days prior to trial.” A stipulation is conclusive as to the facts stipulated. Handelman v. Handelman, 608 S.W.2d 298 (Tex.Civ.App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.). In addition the evidence conclusively shows a proper presentment of a claim under the contract in excess of the amount found by the jury. King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213 (Tex.Civ.App.—Waco 1976, writ ref’d n.r.e.).

Travelers’ offer to buy the micro-ceptor unit in August of 1982 did not extinguish the right to recover attorney’s fees because it was not an unconditional offer to pay an amount equal to or in excess of the amount finally awarded by the jury on the claim under the rental contract. No money was actually tendered to Medi-rents. Article 2226, supra, provides that after a claim is properly presented, if, at the expiration of thirty days thereafter, payment for the just amount owing is not then tendered, the claimant may, if represented by an attorney, also recover a reasonable amount as attorney’s fees. No tender was made in this case for the just amount owing. The point is without merit. Duvall County Ranch Company v. Alamo Lumber Company, 597 S.W.2d 528 (Tex.Civ.App.—Beaumont 1980, no writ history).

Travelers contends that the award of $3,000 in attorney’s fees is excessive. Ordinarily the amount to be awarded as a reasonable attorney’s fee is a fact issue to be determined by the finder of fact. Argonaut Insurance Company v. ABC Steel Products Company, 582 S.W.2d 883, 889 (Tex.Civ.App.—Texarkana 1979, writ ref’d n.r.e.). However, an appellate court has the duty to review an award of attorney’s fees claimed to be excessive. In determining whether such an award is excessive, the Court is entitled to look at the entire record and to view the matter in light of the testimony, the amount in controversy, the nature of the cause, and its common knowledge and experience as lawyers and judges. Jack Roach Ford v. DeUrdanavia, 659 S.W.2d 725 (Tex.Civ.App. Houston [14th Dist.] 1983, no writ history). Applying these factors we are unable to say that Travelers has proven the award of attorney’s fees to be excessive.

The judgment is affirmed.


source: Caselaw Access Project

author: STEPHENS, Justice.

license: Public Domain

text:
    Lewis ORTIZ SALAZAR, Appellant, v. The STATE of Texas, Appellee.
    No. 05-84-00604-CR.
    Court of Appeals of Texas, Dallas.
    March 4, 1985.

      John H. Hagler, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., Karen Chilton Beverly, Asst. Dist. Atty., Dallas, for appellee.
    Before STEPHENS, ALLEN and McCLUNG, JJ.
   STEPHENS, Justice.

Lewis Ortiz Salazar, convicted by a jury of burglary of a habitation and sentenced to life imprisonment, appeals. In three grounds of error appellant contends that: (1) the co-defendant’s confession was improperly admitted into evidence; (2) his own confession was involuntary; and (3) the court’s charge was fundamentally defective. We disagree with each contention and, accordingly, affirm.

In his first ground of error, appellant contends that the co-defendant’s confession was improperly admitted into evidence because its numerous references to “we” improperly implicated him and violated his sixth amendment right to confrontation. Although the introduction of a defendant’s extrajudicial confession implicating a co-defendant violates that co-defendant’s right of cross-examination secured by the sixth amendment, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), not every violation of this rule constitutes reversible error. Bass v. State, 527 S.W.2d 556 (Tex.Crim.App.1975). In this cause both defendants gave written confessions, the court deleted any reference to appellant’s name in the co-defendant’s confession, and the confessions were substantially similar in nature. They essentially corroborated, interlocked, and supported each other. We conclude that any error committed by admitting the co-defendant’s confession was harmless beyond a reasonable doubt. Bass, 527 S.W.2d at 562. Appellant’s first ground of error is overruled.

In his next ground of error, appellant contends that his confession was rendered involuntary because it was obtained as the result of an offer of leniency towards other persons. We disagree. A confession may become inadmissible if it is obtained as a result of promise to the defendant made or sanctioned by one in authority; however, the promise must be of such a character as would be likely to influence a defendant to speak untruthfully. Walker v. State, 626 S.W.2d 777 (Tex.Crim.App.1982). Our determination of the voluntariness of the confession is based on an examination of the totality of the circumstances. Alvarez v. State, 649 S.W.2d 613, 620 (Tex.Crim.App.1982). The record reflects that the “promise” of which appellant complains is a statement by officer Allison that the people who had the stolen items would not be arrested if they were not involved in the burglary or murder. The record further reflects that this made in response to appellant volunteering to tell Allison where the stolen items were being kept if Allison would assure him that nothing would happen to the people who had them. Further, appellant’s response was made after Allison told him that two witnesses had stated that appellant had attempted to sell them a stereo and a television. We conclude that although the promise may have induced appellant to aid the police in the recovery of the stolen goods, it did not serve as the inducement to confess. Further, we note that this is not the type of promise that would likely to influence a person to speak untruthfully. Appellant’s second ground of error is overruled.

In his final ground of error, appellant contends that the State’s attempt to amend the indictment was a legal nullity; therefore, the court’s failure to charge the jury that it must find all the elements originally alleged in the indictment to convict him caused the charge to be fundamentally defective. We disagree. The indictment originally alleged that appellant did:

... knowingly and intentionally enter a habitation without the effective consent of VOEUN BILLINGS, the owner thereof, who had a greater right to possession of the habitation than the defendant, with the intent to commit sexual assault and theft, and the said entry was without effective consent since no assent in fact was given by the owner or a person legally authorized to act for the owner. ..

After the parties announced ready, the court, on the State’s motion and without objection, physically struck the words “sexual assault and” from the indictment. The question presented, therefore, is whether the striking of these words constitutes an amendment within the meaning of and prohibited by TEX.CODE CRIM.PROC. art. 28.10 (Vernon 1975). We conclude that it does not. In order to convict appellant of this offense under TEX.PENAL CODE § 30.02 (Vernon 1973), the jury was required to find that he (1) entered a habitation, (2) without the effective consent of the owner, (3) with intent to commit a felony or theft. Where there are several ways or means by which an offense may be committed set forth in the statute and those ways or means are subject to the same punishment, they may be charged conjunctively in one count. Garcia v. State, 537 S.W.2d 930, 932 (Tex.Crim.App.1976). In this case, an allegation and proof of either of the prohibited culpable mental states is sufficient to support a conviction. Garcia, 537 S.W.2d at 930. The State merely abandoned one of its theories regarding how appellant committed the crime of which he stands accused. Abandonment does not constitute amendment, therefore, no violation of art. 28.10 is shown. Garcia, 537 S.W.2d at 930. Since the striking of the words in this instance did not amend the indictment, the charge was not fundamentally defective. Further, even if the striking of the three words was error, we conclude the error is harmless. Had the words of the indictment not been stricken, and had no evidence been < presented to show appellant’s intent to commit rape, the conviction based upon his intent to commit theft would still be sufficient. Appellant’s final ground of error is overruled.

Affirmed.


author: DUGGAN, Justice.

text:
    Michael RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 01-84-0346-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 7, 1985.

      Stephen A. Doggett, Richmond, for appellant.
    William A. Meitzen, Fort Bend Dist. Atty., Bryan K. Best, Fort Bend Asst. Dist. Atty., Richmond, for appellee.
    Before WARREN, DUGGAN and HOYT, JJ.
   OPINION

DUGGAN, Justice.

A jury convicted appellant of burglary of a habitation with intent to commit sexual assault and assessed his punishment at seven years confinement. Appellant urges four grounds of error on appeal. We affirm.

The complainant, Gracie Gutierrez, testified that she was awakened at about 2:40 a.m. by someone leaning over her bed. She immediately recognized this person as the appellant, Michael Rodriguez, whom she had known for four years. She told him to leave or she would scream for her father. The appellant, muttering that he “wanted her”, got into the bed on top of her and told her not to scream because he did not have any clothes on. He then tried to kiss her, to touch her in the vaginal area, and to remove her shorts. When she began screaming and pulling his hair, he got up, grabbed his pants and shirt, removed the pliers he had inserted in the door latch to prevent it from being opened, and ran out the bedroom door.

Guadelupe Gutierrez, the complainant’s mother, testified that when she heard Gracie screaming, she ran into the hallway. There, she recognized the appellant as he ran past her, wearing only a shirt and carrying his pants in his hand.

Amoldo Gutierrez, the complainant’s father, testified that he heard Gracie scream, ran out into the hallway, grabbed the fleeing intruder, and began struggling with him. During the struggle, Mr. Gutierrez recognized the intruder as the appellant.

All three of these witnesses testified that as appellant fled, he dropped three items in the hallway: a pair of boots, a belt with the initials “M.R.” on the buckle, and a pair of handcuffs.

Appellant’s first ground of error contends that the trial court erred in refusing to admit evidence of his prior consistent statements supporting his defense of alibi.

Appellant testified that on the night in question, he picked up the complainant’s brother, Ramon Gutierrez, who went with him to a dance at the Torez Ball Room, where appellant met Blasa Regino. Ms. Regino testified, in support of appellant’s alibi, that she was engaging in sexual intercourse with appellant in an automobile elsewhere at the time he was alleged to have been in the complainant’s bedroom. Appellant testified that he and Ramon left the dance during the evening in the complainant’s car, so that he, the appellant, could change his clothes. The two men used the complainant’s car, he said, because appellant’s own car was blocked in at the ballroom’s parking lot. They drove to appellant’s grandmother’s house, where he went inside and got a pair of jeans, a T-shirt, and a gun, since he anticipated trouble with other persons back at the ballroom. Ramon drove back to the ballroom while appellant changed clothes in the car, placing the clothes he took off into a brown paper sack which he left in the complainant’s car. He testified that he also put into the sack the boots, the belt, and the handcuffs introduced as State’s Exhibits 1, 2, and 3.

Appellant further testified that after he returned to the dance, he felt out of place wearing a T-shirt and jeans, and again went outside to the complainant’s car and changed clothes once more. He put on his “casual jeans” and a beige button-front shirt, leaving the old jeans and the T-shirt in the complainant’s car.

Appellant testified further that when the dance was over at about 2:00 a.m., he left in his car with Blasa Regino and Ramon, dropped Ramon off, and then drove with Ms. Regino to another friend’s house. This friend was not at home, but appellant and Ms. Regino stayed at this location in his car for about one hour. Appellant then took Ms. Regino back to the Torez Ball Room, dropped her off, and picked up Robert Flores. Appellant testified that he drove to Houston with Flores, and that the two men returned to Richmond before noon. Flores testified as an alibi witness concerning the trip to Houston.

On cross-examination, the prosecutor undertook to impeach appellant’s explanation as to why his boots, belt, and handcuffs were found at the complainant’s home. The State concedes that the prosecutor’s cross-examination of appellant amounted to an accusation that appellant fabricated his testimony after listening to other witnesses during trial. In an attempt to rebut the prosecutor’s claim of recent fabrication, appellant called his father to the stand to testify to what Michael had told him “a couple of days after the incident” about leaving his clothes in the complainant’s car. The state’s objection to this testimony as hearsay and self-serving was sustained, and appellant’s father was not allowed to testify before the jury. His excluded testimony was preserved by a bill of exceptions.

When a testifying defendant has been impeached or sought to be impeached by proof of contradictory statements, it is error to refuse to permit him to sustain his own testimony by proof of statements similar to those testified to at trial, and which were made shortly after the transaction and before any motive or inducement existed to fabricate. Rains v. State, 146 S.W.2d 176, 179 (Tex.Crim.App.1941). This rule is equally applicable to the impeachment of testimony by a charge of recent fabrication. However, it is equally well-settled that proof of statements in harmony with a defendant’s testimony made after a motive existed which would likely prompt him to testify falsely, cannot be introduced to support his testimony. Id.

The statements in question were made to appellant’s father “a couple of days after the incident.” While appellant had not been arrested or charged for the alleged offense when he made the statements, the record shows that he knew within hours of the incident that he was being accused of assaulting the complainant.

The assault was alleged to have occurred at about 2:40 a.m. Appellant testified that when he telephoned Manuel Ibarra from Houston that morning before dawn, Ibarra told him that Ramon Gutierrez was looking for him and had accused him of assaulting Ramon’s sister. Appellant also testified that he called Ramon when he returned to Richmond from Houston and denied assaulting the complainant. Ramon testified that he had told Steve Ibarra, Manuel’s brother, at about 3:30 a.m. that he was looking for appellant because the latter had assaulted his sister. Ramon Gutierrez testified that appellant called and told him that “he didn’t do it,” and that he wanted his boots back.

Even if appellant had made the statement at issue to his father before he knew of the accusation against him and thereby had a motive to fabricate, the error in excluding the supporting testimony was harmless in light of the overwhelming direct evidence of appellant’s guilt. Lewis v. State, 504 S.W.2d 900, 902 (Tex.Crim.App.1974). Further, appellant’s father’s testimony before the jury would have been cumulative of the testimony of (1) Blasa Regi-no, who testified that appellant left the dance to change his clothes, and that she was with him in his car at the time of the alleged assault, and (2) Ramon Gutierrez, who testified that he was with appellant when the latter changed clothes in the complainant’s car. The excluded testimony was not of such moment as to materially change the state of the case favorably to the accused; accordingly, there is no ground for reversal. Ewalt v. State, 363 S.W.2d 279, 283-84 (Tex.Crim.App.1963). Appellant’s first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in failing to submit his requested instruction limiting the jury’s consideration of extraneous offenses.

The “extraneous offenses” complained of by appellant were introduced into evidence by his own testimony, not through any direct questioning by the prosecutor as to any offense. Appellant testified on direct examination that when he went to get a change of clothes, he also picked up a gun in anticipation of trouble back at the dance. On cross-examination, the appellant volunteered that he went to Houston with Robert Flores on the night in question to buy drugs.

An accused is entitled to be tried on the accusation made in the state’s pleading, and not for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). When evidence of an extraneous offense is introduced under a recognized exception to the rule, it is incumbent upon the trial court to instruct the jury that they cannot consider the extraneous offense except for the specific purpose for which it was admitted and unless they find beyond a reasonable doubt that the defendant committed such offense. Nicholas v. State, 136 S.W.2d 221, 221-22 (Tex.Crim.App.1940).

However, when a defendant initially introduces and testifies to the details of an extraneous offense, as appellant did here, he is not entitled to an instruction limiting the jury’s consideration of the evidence. Kirkpatrick v. State, 515 S.W.2d 289, 292 (Tex.Crim.App.1974); Moss v. State, 364 S.W.2d 389, 391 (Tex.Crim.App.1963).

Appellant concedes that it is not a criminal offense to try to buy drugs, as he testified he went to Houston to do. However, he urges that he was harmed by the court’s refusal to give a limiting instruction about extraneous offenses because of his own testimony of his possession of the pistol in connection with his alibi. He asserts that the refusal penalized him for telling the whole truth. Had he omitted to tell of the weapon, and had the complainant’s brother, Ramon, testified about it, he argues that his selective omission would have been held up to the jury to further challenge his credibility. The situation appellant argues is speculative and hypothetical since Ramon did not testify, either on direct or cross-examination, that appellant carried the pistol.

We are aware of no exception entitling a defendant to a charge on extraneous offenses when he initially injects evidence of such offenses into the record because of an expectation that another witness may do so. Appellant’s second ground of error is overruled.

In his third ground of error, appellant contends that the trial court erred in failing to define in its charge the term “consent” as it relates to sexual assault.

The charge to the jury included the following definitions:

Our law provides that a person commits the offense of burglary if, without the effective consent of the owner, he enters a habitation to commit theft or any felony.
Sexual assault is a felony offense wherein a person has sexual intercourse with a female not his wife without the female’s consent.
‘Effective consent’ means assent in fact, whether express or apparent, and includes consent by a person legally authorized to act for the owner. Consent is not effective if induced by force, threats, or fraud.

Sec. 30.02 of the Penal Code, which sets out the elements of the offense of burglary, does not define the term “effective consent;” thus, a trial court must look to the general definitions section of the Code, section 1.07, for the definitions of “consent” and “effective consent.” The definition of “consent” given in the charge is that found in sections 1.07(9) and 1.07(12)(A).

However, Section 22.011 of the Penal Code, which sets out the elements of sexual assault, also defines the term “consent” or “without the consent of the other person,” as used therein:

(a) A person commits an offense if the person:
(1) intentionally or knowingly:
(A) causes the penetration of the anus or vagina of another person who is not the spouse of the actor by any means, without that person’s consent; ....
(b) A sexual assault ... is without the consent of the other person if:
(1) the actor compels the other person to submit or participate by the use of physical force or violence; [or]
(2) the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the present ability to execute the threat;....

(Emphasis added).

Appellant objected to the charge’s failure to define “consent” as it relates to sexual assault, as set out in sec. 22.011(b)(1) and (b)(2). He now argues that the failure to do so allowed the jury to determine his guilt or innocence without an instruction as to the degree of force necessary to constitute a sexual assault, and without a finding that appellant intended to use such force.

The complaint is without merit. Since appellant was indicted for burglary of a habitation with the intent to commit sexual assault, and not for the offense of sexual assault, it was unnecessary to set out the constituent elements of sexual assault as long as that offense was defined in the abstract portion of the charge, as it was here. See Young v. State, 573 S.W.2d 817 (Tex.Crim.App.1978); Taylor v. State, 630 S.W.2d 469 (Tex.App.—San Antonio 1982).

Even if the omission to define “consent” in the terms of sections 22.011(b)(1) and (b)(2) had been error, it would have been harmless since there was no contested issue of consent.

The appellant’s defensive theory was that of alibi, and not that the complainant consented to the sexual encounter. The complainant testified: (1) that she gave no one permission to enter her bedroom; (2) that she told appellant to get out of her room or she would scream for her father; and (3) that when the appellant got on top of her, touched her in the vaginal area, and tried forcibly to remove her shorts, she started screaming and pulling his hair. Since the facts present no contested issue of consent, the jury could not have been misled by the definition of consent given. Neither could the jury have found appellant guilty in a way not made penal by the statute. The error, if any, was not calculated to injure the appellant’s rights or deprive him of a fair and impartial trial. Naim v. State, 644 S.W.2d 746, 748 (Tex.Crim.App.1983). Appellant’s third ground of error is overruled.

In his fourth and final ground of error, appellant contends there was insufficient evidence to support a verdict of guilty of the offense of burglary of a habitation.

Appellant’s argument focuses on the insufficiency of the evidence to support a finding of guilt on the underlying felony of sexual assault. However, the indictment alleges burglary of a habitation with the intent to commit sexual assault, not the commission or attempted commission of sexual assault. Ford v. State, 632 S.W.2d 151, 153 (Tex.Crim.App.1982).

In reviewing the sufficiency of the evidence to sustain a criminal conviction, the appellate court must look at all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983).

The intent with which a person unlawfully enters a habitation is a fact question for the jury to be drawn from the surrounding circumstances. Stearn v. State, 571 S.W.2d 177 (Tex.Crim.App.1978). The evidence shows that the complainant was awakened by appellant leaning over her bed. She recognized him and asked him what he was doing there, to which he replied, “Be quiet and don’t say nothing.” She told him to leave or she would scream for her father. The appellant told her not to scream because he did not have any clothes on. The appellant then got into the bed on top of the complainant, told her he wanted her, started kissing her, tried to touch her vaginal area, and forcibly tried to remove her shorts. The evidence is sufficient for the jury to have found beyond a reasonable doubt that appellant entered the complainant’s home with the intent to commit sexual assault. Appellant’s fourth ground of error is overruled.

The judgment is affirmed.


author: BASS, Justice.

text:
    Don McCARLEY, Appellant, v. Royce HOPKINS, Mollie Hopkins and Travel Innovations, Inc., Appellees.
    No. 01-84-0446-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    March 7, 1985.

      Robin A. Hartman, Houston, for appellant.
    James P. Keenan, Bracewell & Patterson, Houston, for appellees.
    Before JACK SMITH, BASS and HOYT, JJ.
   OPINION

BASS, Justice.

Appellant, Don McCarley, appeals a directed verdict granted in favor of the ap-pellees, Royce and Mollie Hopkins.

We affirm.

Don McCarley and a partner owned All Seasons Travel Agency. In 1981, McCar-ley began negotiating the merger of All Seasons with Travel Innovations, Inc., which was a Texas Corporation owned and operated by Royce and Mollie Hopkins. During the negotiations, McCarley and Royce Hopkins decided that McCarley would have to buy out his partner. To do this Royce Hopkins had to replace McCar-ley’s partner as a guarantor on a bank loan that All Seasons had outstanding. Royce Hopkins also loaned McCarley $20,000 to buy out his partner and in return received a promissory note and a security interest in All Seasons. Thereafter, Travel Innovations of Texas, Inc., (TIOT) was formed for the purpose of merging All Seasons and Travel Innovations. After the assets of both agencies were transferred to TIOT, but before the merger papers were signed, a dispute arose concerning the composition of both the board of directors and the officers as well as the proposed issuance of TIOT stock. This dispute precipitated a suit by McCarley against the Hopkinses and Travel Innovations, Inc. In the suit, he alleged a breach of an express and implied contract, unjust enrichment, breach of a joint venture or partnership, fraud, wrongful appropriation, and asked for an accounting. The Hopkinses answered these allegations and asserted that they were not liable in the capacity in which they were sued, and that they did not enter into a partnership or joint venture with McCarley. Additionally, Royce Hopkins filed a counterclaim for default of the promissory note and for fraud in the execution of the promissory note.

The trial court granted a directed verdict on all causes of action asserted by McCar-ley against the Hopkinses in their individual capacity. The remaining portion of the case was submitted to the jury. The jury found for McCarley on his causes of action against Travel Innovations and for Royce Hopkins on his counterclaim for breach of the promissory note, but not for fraud in the execution of that note. In the jury’s answer to the special issues, McCarley was awarded a $128,000 verdict against Travel Innovations, and Royce Hopkins was awarded a $28,807.05 verdict against McCarley.

The appellant claims that the trial court erred in granting the directed verdict for the Hopkinses. The Hopkinses’ motion for directed verdict stated that there was a defect in McCarley’s pleadings and a lack of sufficient evidence to support any cause of action against them individually. The trial judge did not specifically state upon which grounds he was granting the directed verdict. Therefore, his ruling must be upheld if any of the stated grounds in the motion entitled the moving party to the directed verdict. Yeager v. Abrams, 480 S.W.2d 271 (Tex.Civ.App.—El Paso 1972, no writ). An instructed verdict is proper (1) when a defect in the opponent’s pleadings makes them insufficient to support a judgment, (2) when the evidence conclusively proves a fact that establishes a party’s right to judgment as a matter of law, or (3) when the evidence offered on a cause of action is insufficient to raise an issue of fact. Ottis v. Haas, 569 S.W.2d 508 (Tex.Civ.App.—Corpus Christi 1978, no writ).

In point of error number one, McCarley asserts that the record raises a fact issue concerning the personal liability of the Hopkinses. He argues that borrowing $20,000 from Royce Hopkins constitutes proof that Hopkins was involved in the merger as an individual. However, the promissory note was not conditioned on the merger, but was an independent contract between McCarley and Royce Hopkins.

McCarley also argues that Royce Hopkins’ guaranteeing of a loan, his taking a security interest in All Seasons to secure his promissory note, and the issuing 500 shares of TIOT stock to himself all demonstrates Hopkins individual involvement. However, the record shows that the guarantee transaction was made to assist McCarley in obtaining ownership of All Seasons. It was an independent transaction preceding the merger of the two business entities. As to the issuance of the stock, Royce Hopkins was to receive 500 shares of TIOT for his security interest in All Seasons.

In reviewing this evidence in a light most favorable to the appellant, we find that there is no testimony or evidence offered that an agreement to merge Travel Innovations and All Seasons was entered into between McCarley and the Hopkinses as individuals, that the Hopkinses were unjustly enriched, that the Hopkinses defrauded him in any manner, or that he and the Hopkinses agreed to form a joint venture or partnership. The Hopkinses were involved in the merger as officers and/or directors of Travel Innovations. The trial court correctly granted the motion for directed verdict, because McCarley produced no evidence that the Hopkinses were liable individually or that they were using the corporate entity as a sham. The appellant’s first point of error is overruled.

In the appellant’s second and third points of error, he argues that the trial court erred in excluding from evidence Plaintiff’s Exhibit No. 20, comprised of Travel Innovations’ corporate documents, and also in excluding from evidence the cross-examination testimony of Royce Hopkins concerning this exhibit. Exhibit 20 included the minutes of the meetings of the incorpora-tors and the initial board of directors, the by-laws, the certificate of incorporation, the statement of registered agent and registered office, the resignation of Miller E. Waslick and Marian Waslick, the annual stockholders’ meetings, the stock certificates, the resignation of Delynne Nale, the shareholder’s buy/sell agreement, and the articles of incorporation. Initially, the exhibit was offered and accepted into evidence without objection; however, the trial court withdrew the exhibit from evidence.

It is within the sound judicial discretion of the trial court to exclude evidence, and the trial court’s decision can only be overturned on a showing of a clear abuse of that discretion. See Landry v. Travelers Insurance Co., 458 S.W.2d 649 (Tex.1970). The appellant does not show how the trial court abused its discretion but simply argues that if Exhibit 20 had been in evidence he could have cross-examined Royce Hopkins with it. Thus, he alleges that he could have rebutted Travel Innovations’ cause of action for breach of contract and Royce Hopkins’ cause of action for fraud. However, the jury found that the appellant did not breach the contract with Travel Innovations, and that he did not defraud Royce Hopkins upon the execution of the promissory note. Thus, the appellant was not injured by the exclusion of this evidence, and even if the trial court abused its discretion, the trial court’s ruling on these matters was harmless error. Appellant’s second and third points of error are overruled.

In appellant’s fourth point of error, he complains that the trial court erred in excluding certain damages testimony. The court did not allow the appellant to testify on his lost benefits from discounted travel and from discounted accommodations. Appellant argues he would have received these benefits if Travel Innovations had not breached its contract with him. The appel-lees objected to this testimony on the basis that it was conjecture and speculation as to what trips, if any, McCarley would have taken. The court sustained the objection and allowed the appellant to perfect a bill of exceptions.

In Texas, a plaintiff has the burden of proving, with some degree of certainty, the factual basis that will support the amount of his damages. Schoenberg v. Forrest, 253 S.W.2d 331 (Tex.Civ.App.—San Antonio 1952, no writ); see also International Harvester Co. v. Kesey, 507 S.W.2d 195, 197 (Tex.1974). In reading the appellant's bill of exceptions, we find that he failed to show with any degree of certainty the basis of these alleged damages. He did not substantiate what trips, if any, he intended to take or the value of those trips. The excluded testimony was merely speculative. The appellant’s fourth point of error is overruled.

The judgment is affirmed.


author: SEARS, Justice.

text:
    Stephen Leroy McKIBBEN, Appellant, v. STATE of Texas, Appellee.
    No. C14-83-225CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 7, 1985.

      Gerald Fry, Houston, for appellant.
    J. Harvey Hudson, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of burglary of a habitation under TEX.PENAL CODE ANN. § 30.02(a) (Vernon 1974). His punishment was enhanced by a previous felony conviction. He was sentenced to fifty years confinement and assessed a $10,-000.00 fine. In ground of error three, Appellant alleges that the evidence is insufficient to sustain his conviction. We agree.

On April 5, 1982, at approximately 1:30 a.m., Officer Downey, of the Village Police Department, saw a car parked in the back of an unlighted church parking lot. Since the engine was warm but nobody was in or around the car, he thought it was there under “suspicious” circumstances. Officer Downey called in the license number of the car and was advised that it was not a stolen vehicle. Still suspicious, the officer conducted a search of the vehicle using the aid of an artificial light. He found the vehicle filled with trash; he found two .22 caliber bullets on the floor and an eight-inch butcher knife in the glove compartment. He used a screwdriver found in the vehicle and opened the trunk of the ear and found several other .22 caliber bullets. The officer at this time feared that unknown individuals might be hiding in the bushes watching his activity, so he entered his vehicle and left at a high rate of speed. He immediately circled the area, pulled into a back road to the church parking lot and set up surveillance on the automobile. Within a few seconds the automobile left at a high rate of speed and the officer followed. When the vehicle made a left turn without giving the proper signal, Officer Downey stopped the vehicle and questioned the driver and the Appellant, who was a passenger in the front seat. The driver, Edward Wayne Blacklock, was arrested for driving without a license, and Appellant was arrested for public intoxication and unlawfully carrying a weapon. The butcher knife previously seen in the glove compartment had been removed and was found under the passenger’s seat. Downey conducted an inventory search at the scene of the arrest and found no further evidence of any crime. He contacted a wrecker service and had the wrecker driver acknowledge an inventory form, and the car was then impounded.

The following day, Tuesday, April 6, Captain Frazier, also of the Village Police Department, investigated a burglary near the church. Since the address of the burglarized house was very near the location where Downey first observed the Blacklock car, Frazier drove to the storage yard on Wednesday, April 7, and conducted a search of the car. Frazier found a gold wedding band in a crease near the accelerator of the automobile, and in retrieving the ring, he discovered other items that had been shoved under the dashboard on the driver’s side of the car. In retrieving those items he found confederate money, an antique wrist watch with no band, two old high school class rings and an elementary school class ring. Officer Frazier testified that the car appeared to have been lived in by one or more people, contained items of clothing, all sorts of trash, papers and twenty-five other itemized items in addition to the items found stuffed under the dashboard. Appellant was then charged with a two-count indictment of burglary and theft. At time of trial the theft portion of the indictment was waived and the state elected to go to trial solely on the burglary charge.

At time of trial, the testimony revealed that the owner and occupant of the burglarized house had been away for a period of two to three months visiting her daughter in Tennessee. Her niece, the next door neighbor, testified that on Tuesday, April 6, 1982, the yard man contacted her and told her the house had been broken into through a roll-out window. The niece went to the house, found it had been ransacked and called the police. The police officers testified that the house was completely ransacked, all the pictures and paintings had been removed from the walls, all the closets had been entered, searched and the doors left opened, all drawers had been searched, two television sets and a typewriter were sitting near an exit door, the entire kitchen area had been searched, ransacked and many silver items were laid out on the table. The officers inspected the house and all surrounding grounds, including the fence between the church and the burglarized premises. Nothing was found except a pair of gloves that appeared to be a woman’s driving gloves and a small flashlight.

The niece and the complainant testified that the two high school class rings, the elementary school class ring, the wedding band, the antique watch and the confederate money belonged to complainant and were kept in the complainant’s residence. Neither party could identify a gold chain and shark’s tooth and a money clip, which had also been found with those items that were stuffed under the dashboard, as belonging to the complainant or coming from the complainant’s house. It is interesting to note that the complainant and her niece testified that a twelve-piece setting of sterling silver flatware, containing approximately one hundred pieces of silver, was missing and unrecovered. They also testified that two five-inch silver candlesticks, a pair of binoculars and a pistol were missing and had not been recovered.

Perhaps the most damaging testimony to the state came when the state’s witness, the niece, testified that she watched over the house for her aunt and had a maid come every Tuesday and a yard man every other Tuesday. She testified that she was in the house when the maid came the Tuesday prior to April 6 and everything was in order. She further testified on direct examination as follows:

Q: [W]hen was the last time before this Tuesday, ... April 6th, 1982 — when was the last time you yourself were in that house?
A: April 5th, and then I walked around the house to see if any — everything was all right.
Q: Okay. Did you go into the house on April 5th?
A: Yes, I think I did.
Q: Okay, and previous to April 5th when was the last time you had been in the house?

The witness answered “two or three days earlier,” but then changed her testimony to reflect that she had been there the previous Tuesday when the maid cleaned the house, and that everything was in order at that time. The witness further testified on cross-examination as follows:

Q: Now, and you had looked at the house the day earlier?
A: Yeah, I walked around to see and everything.
Q: Was [sic] any of the windows broken?
A: Not at the time that I saw it in the afternoon approximately, oh, mid-afternoon.
Q: Okay. Would you say around 2:00 or 3:00 o’clock? ... And this would be on April 5th, a Monday?
A: Yeah.
Q: Okay. Now, when you went in the house nothing was out of order then either?
A: No.

At the close of the state’s case, the defense moved for an instructed verdict on the basis that the Appellant was arrested at approximately 2:00 a.m. on Monday, April 5, 1982, and the complaining witness testified that she inspected the burglarized premises at 2:00 or 3:00 p.m. on that same day, some twelve hours after Appellant had been arrested, and at that time the windows were not broken and the house had not been burglarized. The court overruled the motion, the defense rested and the jury found Appellant guilty of burglary.

There are many strange elements to this case, and many unanswered questions. Both the gardener and the maid, who previously came to the home of the complainant at regular intervals, were unavailable at the time of trial. Of the items stolen in the break-in, the only items found in the vehicle in which Appellant was a passenger, were items having only sentimental value, and no monetary value. Those items that were stolen in the burglary that had any monetary value were not recovered. The automobile was searched in the church parking lot and again at the time Appellant was arrested, and none of the contraband was found at that time. However, one day after the burglary was reported, these items were allegedly found stuffed in the dashboard of the automobile. Further, Appellant was arrested at 2:00 a.m., and approximately twelve hours later the premises were inspected by the niece and were found to be in good order, the window was unbroken and the premises had not been burglarized. Although we may never find the answers to these questions, it is clear that the evidence presented by the state was insufficient to support a guilty verdict.

The state argues that Appellant’s presence at the scene of the crime coupled with his joint possession of recently stolen property are circumstances tending to show guilt. We agree that when a defendant is found in possession of recently stolen property, and at the time of arrest fails to make a reasonable explanation showing his honest acquisition of the property, the fact finder may draw an inference of guilt. See Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App.1983) (en banc), for an excellent discussion of “inference vs. presumption.” However, we must point out that this is merely a “permissible” inference. It is not sufficient for a conviction. The burden of proof is not shifted and the state must still prove each element of the crime beyond a reasonable doubt. See 19 TEX.JUR.3d Criminal Law § 1715 (1982). This inference or circumstance of guilt is not conclusive, and once this permissible inference arises, the sufficiency of the evidence must still be examined according to applicable direct or circumstantial evidence standards of Appellant’s review. Hardesty, 656 S.W.2d at 77.

In this case, there is no proof that Appellant ever entered the burglarized premises, ever acted independently or jointly with co-defendant Blackloek in an attempt to commit a burglary, nor is there any other circumstantial evidence which would tend to connect him with the commission of this crime. The only evidence presented is that of recently stolen property found in the vehicle in which Appellant was a passenger, and Appellant’s unexplained presence in a church parking lot near the burglarized premises. In order to warrant such an inference or presumption of guilt from the circumstance of possession alone, such possession must be personal, recent, unexplained and must involve a distinct and conscious assertion of right to the property by the defendant. Rodriguez v. State, 549 S.W.2d 747 (Tex.Crim.App.1977). There is no evidence that Appellant exercised personal or joint possession over the alleged stolen property, nor was there any distinct and conscious assertion of right to the property exercised by Appellant. The state has cited a series of cases that hold that evidence of a defendant’s recent and unexplained possession of stolen property is sufficient in and of itself to sustain a conviction. A review of those cases indicates that the evidence was sufficient to sustain a conviction for the offense of theft but we find no case that holds the unexplained possession of stolen property alone is sufficient in and of itself to sustain a conviction for burglary. Further, in this case, the evidence presented by the state proved that the burglary occurred after the Appellant was incarcerated, and other testimony developed at trial showed that Appellant was never released on bond but was in fact in jail from the time of his arrest until the time of trial. Appellant’s ground of error number three is sustained, and we therefore need not consider his other grounds of error.

Appellant has filed a pro se post-submission brief wherein he alleges fundamental error. While Appellant is not entitled to hybrid representation, this court can and will consider fundamental error at any time.

Appellant complains that the court, during voir dire and in the court’s charge, instructed the jury that the enhanced punishment range was not less than fifteen years nor more than ninety-nine years or life, and a fine not to exceed $10,000. The jury, in addition to the prison term, assessed a $10,000 fine in this case.

In 1979, the legislature voted to amend the provisions of TEX.PENAL CODE ANN. § 12.32 (Vernon Supp.1985), to permit assessment of both fine and prison time for the commission of a first-degree felony offense. However, it failed to amend § 12.42(c), which provides the range of punishment for a person convicted of felony offense who thereafter commits a first-degree felony offense, and that punishment range does not provide for the assessment of a fine. The error is fundamental, the judgment is void and the cause must be reversed and remanded. Bogany v. State, 661 S.W.2d 957 (Tex.Crim.App.1983) (en banc). Ground of error two in Appellant’s pro se post-submission brief is hereby sustained.

The judgment of the trial court is reversed and this cause is remanded to the trial court with instructions to find Appellant not guilty.

      . Blacklock was convicted of aggravated robbery on September 17, 1982. This panel reversed his conviction and remanded for new trial. See Blacklock v. State, 681 S.W.2d 155 (Tex.App.—Houston [14th Dist.] 1984, pet. requested).


author: TIJERINA, Justice.

text:
    Clyde C. FOWLER & City of San Antonio, Appellants, v. Andrew GARCIA, Appellee.
    No. 04-83-00481-CV.
    Court of Appeals of Texas, San Antonio.
    March 13, 1985.

      Baldemar A. Jimenez, Patrick Bernal, Steven W. Arronge, San Antonio, for appellants.
    Peter Torres, Jr., Frank Joseph Sten-berg, Phillip R. Spicer, Jr., Taylor & Spicer, San Antonio, for appellee.
    Before CANTU, TIJERINA and DIAL, JJ.
   OPINION

TIJERINA, Justice.

Appellee filed this suit seeking damages for injuries sustained in an automobile collision. He was a passenger in a van driven by Henry Idar which was struck by a police patrol car driven by appellant, Clyde C. Fowler, while Idar was making a left turn. Appellants filed a cross-action against Idar and appellee on the theory of negligence. The jury found that Idar and appellant Fowler were negligent and that their negligence was the proximate cause of the collision and the injuries suffered by appellee; damages in the total sum of $30,840.50 were awarded. Negligence was apportioned 65% to Idar and 35% to Fowler; appellee was not found to be negligent for remaining in the vehicle driven by Idar.

Appellants’ first complaint concerns the jury’s answer to Special Issue No. 4. They allege that the finding that appellee was not negligent was against the great weight and preponderance of the evidence. Special Issue No. 4 provides:

Do you find from a preponderance of the evidence that Andrew Garcia remained in the vehicle after he knew that Henry Idar was physically and mentally not capable of operating and driving said vehicle thereby constituting a danger to himself and others on the occasion in question?
Answer “We do” or “We do not.”
ANSWER: We do not.

Special Issue No. 5 instructs the jury that if they answer Special Issue No. 4 in the affirmative, they must determine whether such acts constitute negligence. Nowhere does the charge require the jury to find whether any negligence by appellee was the proximate cause of the occurrence or the injuries. Proximate cause includes foreseeability and cause in fact; both elements must be present. McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901, 903 (Tex.1980); Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975).

TEX.REV.CIV.STAT.ANN. art. 2212a (Vernon Supp.1985), the comparative negligence statute, provides that damages are to be apportioned among tort-feasors in accordance with the percentage of negligence attributable to each tort-feasor and:

(b) In a case in which there is more than one defendant, and the claimant’s negligence does not exceed the total negligence of all defendants, contribution to the damages awarded to the claimant shall be in proportion to the percentage of negligence attributable to each defendant.
(c) each defendant is jointly and severally liable for the entire amount of the judgment awarded the claimant, except that a defendant whose negligence is less than that of the claimant is liable to the claimant only for that portion of the judgment which represents the percentage of negligence attributable to him. [Emphasis added.]

Thus it would appear that the necessary, proper and complete charge on comparative negligence must inquire whether the claimant was negligent, if such negligence was the proximate cause of the occurrence, and what percentage of negligence is attributable to the claimant. See Eagle Trucking Co. v. Texas Bitulithic Co., 612 S.W.2d 503, 507 (Tex.1981). In the instant case appellants failed to request special issues on whether appellee’s negligence was the proximate cause of the accident and on what percentage of negligence is attributable to appellee. The record reflects that appellants did not object to the comparative negligence issue as submitted; therefore, appellants have waived any error in the charge. See Ford Motor Credit Co. v. Blocker, 558 S.W.2d 493, 499 (Tex.Civ.App.—El Paso 1977, writ ref’d n.r.e.); TEX.R. CIV.P. 279. We have, nevertheless, considered appellants’ complaint that the jury’s failure to find appellee negligent was against the great weight and preponderance of the evidence. We are required to weigh all the evidence and set aside the finding if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The evidence which supports the finding establishes that appellee and Idar had known each other for twenty-seven years, that Idar had not previously been involved in an automobile collision, that Idar had never been arrested for DWI, that Idar was a safe driver, and that just prior to the accident Idar was driving properly and not speeding. The contrary evidence shows that appellee and Idar, the driver of the van, spent the evening together, during which time Idar consumed five beers and two drinks. The suggestion was made that appellee knew that Idar was dangerous and incapable of driving safely since he paid for some of the drinks. The jury finding to Special Issue No. 4 was not so against the great weight and preponderance of the evidence as to be manifestly unjust or clearly wrong. Point of error one is overruled.

In their second point of error, appellants argue that there was insufficient evidence to support the jury findings that appellant Fowler was negligent as to speed and control of his vehicle, and that his negligence was a proximate cause of the injury. Appellants further complain in point of error three that such findings were against the great weight and preponderance of the evidence. An insufficient point has come to have substantially the same meaning as a point that a finding is against the great weight and preponderance of the evidence. Metropolitan Life Insurance Co. v. Duncan, 566 S.W.2d 351, 353 (Tex. Civ.App.—Fort Worth 1978, no writ). The standard of review in both instances requires that we consider and weigh all of the evidence in the case and set aside the verdict and remand for a new trial if we conclude that the verdict or finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); see also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEXAS L.REV. 361 (1960).

It was uncontroverted that Idar turned left in front of Fowler. However, appellants concede that Fowler was exceeding the speed limit before the accident, and that he was not responding to an emergency call. Fowler’s police car left approximately 200 feet of skid marks; he was unable to keep his vehicle under proper control and avoid colliding with the van. Thus, we have considered the evidence against and in support of the jury finding at issue, and in our opinion there was sufficient direct and circumstantial evidence to support the jury finding that appellant was negligent both in his speed and in his failure to keep his vehicle under proper control. Additionally, we have determined that the jury finding and the judgment are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Points of error two and three are overruled.

Lastly, appellants contend that appellee’s jury argument outside the record was reversible error. Specifically, appellants objected to appellee’s jury argument that Fowler should have used his lights and siren. The court sustained the objection; however, the record reflects that appellants failed to request an instruction to the jury to disregard. Incurable jury arguments are rare; even strong appeals to prejudice become harmless when a jury is instructed to disregard them, for which reason it is logical to require an objection and instruction. Standard Fire Insurance Co. v. Reese, 584 S.W.2d 835, 840 (Tex.1979). Any harm from appellee’s jury argument would have been cured by an instruction from the court to disregard. By failing to press for an instruction at the time of the argument, appellants have waived their complaint. Reese, 584 S.W.2d at 840-41; Turner v. Turner, 385 S.W.2d 230, 237 (Tex.1964). Appellants’ fourth point of error is overruled.

The judgment of the trial court is affirmed.


author: FENDER, Chief Justice.

text:
    George Raymond OLIVER, Appellant, v. The STATE of Texas, State.
    No. 2-82-192-CR.
    Court of Appeals of Texas, Fort Worth.
    April 3, 1985.
    Short & Martin and Bruce A. Martin, Wichita Falls, for appellant.
    Tim Curry, Dist. Atty., Fort Worth, for the State.
    Before FENDER, C.J., and ASHWORTH and JOE SPURLOCK, II, JJ.
   OPINION

FENDER, Chief Justice.

This case is back before this Court upon reversal and remand by the Court of Criminal Appeals. 685 S.W.2d 54. This Court had erroneously held that the application section of the trial court’s charge to the jury was fundamentally defective. 651 S.W.2d 384. We now must review the remainder of appellant’s allegations of error.

We first note that counsel for appellant filed what is referred to generically as a “frivolous brief.” But, true to his obligation as an attorney under such circumstance, counsel has suggested three possible errors, to-wit:

1. Permitting a witness to give “narrative” testimony in response to a general question.

2. Permitting a witness to relate a statement made by appellant on the grounds that such would be hearsay.

3. Admitting photographs of the deceased as nothing at issue was proven and the pictures were inflammatory.

Counsel on appeal states in his brief that he can find no applicable legal authority to support the first two suggested points and only cites Alcorta v. State, 294 S.W.2d 112 (Tex.Crim.App.1956) rev’d on other grounds, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1956) in support of the third point.

On the subject of the admissibility of pictures of the deceased, we note that the cited case was modified and extended in Burns v. State, 388 S.W.2d 690 (Tex.Crim.App.1965). However, Burns was specifically overruled in Martin v. State, 475 S.W.2d 265 (Tex.Crim.App.1972) over’d on other grounds, 548 S.W.2d 685, 690 (Tex.Crim.App.1977) wherein the Court of Criminal Appeals announced the rule which ob tains today, to-wit:

“We hold that if a photograph is competent, material and relevant to the issue on trial, it is not rendered inadmissible merely because it is gruesome or might tend to arouse the passions of the jury, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible.” Martin, supra at 267.

We have reviewed the record as to all three points and find them to be without merit. We find no error.

The judgment of the trial court is affirmed.


author: HILL, Justice.

text:
    ETTER’S WELDING, INC., Appellant, v. The GAINESVILLE NATIONAL BANK OF GAINESVILLE, Appellee.
    No. 2-84-202-CV.
    Court of Appeals of Texas, Fort Worth.
    April 4, 1985.

      Nall, Stagner & Pelley and Michael Wynne, James R. Fry, Sherman, for appellant.
    Sullivant, Meurer & Woodlock and Jerry W. Woodlock and D. Keith Orsburn, Gainesville, for appellee.
    Before BURDOCK, JOE SPURLOCK, II, and HILL, JJ.
   OPINION

HILL, Justice.

Etter’s Welding, Inc. appeals from a default judgment taken against it by The Gainesville National Bank of Gainesville, upon a suit brought by the bank on a promissory note and for foreclosure on certain security agreements, against Etter’s Welding, Inc. and Russell W. Etter, individually. Russell W. Etter filed an answer and obtained a stay from the bankruptcy court and no judgment has been taken against him.

We dismiss for lack of jurisdiction because the default judgment against Etter’s Welding, Inc. is an interlocutory default judgment, not a final judgment.

The general rule, with certain exceptions not applicable here, is that an appeal may only be prosecuted from a final judgment and that to be final a judgment must dispose of all issues and parties in a case. North East Independent School District v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966); Parks v. Huffington, 616 S.W.2d 641 (Tex.Civ.App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.).

The judgment in this cause does not make any disposition of the pending claim against Russell W. Etter individually, and there is nothing in the record to show that there was any severance of the two claims. It is therefore an interlocutory judgment which is not appealable. See Pohl and Hittner, Judgment by Default in Texas, 37 Sw.L.J. 421, 432 (1983). Since this was not a case regularly set for trial on the merits, the inference of a disposition of the claim against Mr. Etter, as discussed in North East Independent School District v. Aldridge, 400 S.W.2d at 896-97, may not be made.

We dismiss this appeal for want of jurisdiction.


author: DUNN, Judge. HAYES, Chief Judge,

text:
    Duker BOGARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 2, 1984.
    As Modified Nov. 9, 1984.
    Rehearing Denied Jan. 11, 1985.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court April 24, 1985.
    Richard Clay, Kevin L. Nesbitt, Clay & Clay, Danville, for appellant.

      Edward D. Hays, Sp. Asst. Atty. Gen., Sheehan, Barnett & Hays, P.S.C., Danville, for appellee.
    Before HAYES, C.J., and REYNOLDS and DUNN, JJ.
   DUNN, Judge.

Bogard was cited for DUI by Steve Tol-son, who had been hired by the City of Danville as a police officer. The Boyle County District Court dismissed the charges based on the fact that Tolson was not a qualified voter in Boyle County wherein the City of Danville was contained and, therefore, did not qualify as policeman under KRS 95.440 and, therefore, was not qualified to issue citations. On appeal to the Boyle Circuit Court this judgment was reversed. Discretionary review to this court was granted.

The issues before us are: 1) Was Tolson a qualified police officer pursuant to the provisions of KRS 95.440, and 2) if he was not, was his citation of Bogard invalid so that it was appropriate to dismiss the charges against him? We find negatively on both issues and affirm the order of the Boyle Circuit Court on the appeal to it from the District Court.

In order to decide the first issue we must consider KRS 95.440(2) as it stood in 1968, the effective date of KRS 15.335, which we must also consider, and KRS 95.440 as it stood in 1980 when it was last amended.

In pertinent part KRS 95.440(2) that was in effect in 1968 was:

(2) Each member of the police or fire department in cities of the second and third classes shall be a qualified voter of the county containing the city of employment ...

There being no constitutional provision to the contrary, it was impliedly repealed by KRS 15.335 effective in 1968 which in its entirety was and still is as follows:

Residence or voting eligibility not to disqualify peace officer. — No person shall be disqualified from holding a position as a peace officer by reason of his residence or voting eligibility, except as provided in the Constitution.

However, effective July 15, 1980, KRS 95.-440(2) was amended and in pertinent part now is as follows:

(2) Each member of the police or fire department in cities of the second or third classes and urban county governments shall be a qualified voter in the county containing the city of employment, ... (emphasis added)

Other than an addition of a new paragraph which has no application here, the only change resulting from the amendment was to add the emphasized words, “and urban county governments”, to paragraphs (1), (2), (3), and (4), each of which dealt with qualifications or other rules pertaining to police and firemen.

The Commonwealth maintains KRS 15.-335 continues to outlaw residency and voting eligibility as a peace officer qualification, and Bogard maintains the 1980 amended KRS 95.440(2) in turn impliedly repealed KRS 15.335 and that the residency and voting eligibility requirement it banned had been resurrected.

Appellee’s reliance on 1A Sutherland, Statutes and Statutory Construction, § 23.29 (4th ed. 1972) that deals with the effect of reenactment of a statute on intermediate acts is misplaced. The rules of statutory construction applicable to our situation are contained in § 23.28 of that work which is entitled “repeal and reenactment.”

The first rule is: As noted above, the voting eligibility qualifications for peace officers of the then KRS 95.440(2) was repealed by implication in 1968 by the enactment of KRS 15.335. The 1980 enactment of the amendment to KRS 95.440(2) by implication invalidates that repeal.

The reenactment of a statute which has been repealed by specific provision, or by implication from later legislation upon the subject matter invalidates the previous repeal and restores the statute to effective operation.

The second applicable rule, however, limits the repeal by implication to some extent. It provides:

.... When, however, an existing statute is reenacted by a later statute, in substantially the same terms, a repeal by implication is effectuated only of those provisions which are omitted from reenactment, while the unchanged provisions which are reiterated in the new enactment are construed as having been continuously in force....

See Grieb v. Jefferson County Fiscal Court, 249 Ky. 659, 61 S.W.2d 285 (1933). The enactment of the 1980 amendment to KRS 95.440(2) was in substantially the same terms as the then KRS 95.440(2) repealed by implication by the enactment of the 1968 KRS 15.335 concerning the voter eligibility qualification. The only change was to add police officers of urban county governments to those officers affected by the act.

At first blush, therefore, it would seem that the unchanged term of “voter eligibility” continued in force to the same degree as before, i.e. that it had been impliedly repealed by the 1968 enactment of KRS 15.335. This interpretation, however, is absurd when one considers that such would give a negative “continuing in force” effect to an affirmative “continuing in force” effect requirement of the rule.

The absurdity of this interpretation is enhanced when we consider another basic rule of statutory interpretation. It is presumed that the legislature is acquainted with the law on the subjects on which it legislates and is informed of previous legislation and of the construction that it has previously received. See Schooler v. Commonwealth, Ky.App., 628 S.W.2d 885 (1982). Where the legislature has made no exception to the positive terms of a statute, the presumption is that it intended to make none, and it is not the province of a court to introduce an exception by construction. Hawley Coal Company v. Bruce, Ky., 67 S.W.2d 703 (1934); Commonwealth v. Boarman, Ky.App., 610 S.W.2d 922 (1980).

Here, the legislature deliberately considered 3 separate paragraphs of the statute, one of which is that with which we are concerned, in adding police officers of urban county government to each. We cannot deny the application of this latter rule, when we could actually ignore indulging in the statutory speculation it creates, and still determine that the legislature was aware of the provision of: 1) voter eligibility qualification of KRS 95.440(2) before the 1968 enactment of KRS 15.135, 2) its repeal by implication, and 3) its resurrection by implied repeal of KRS 15.135 by the 1980 amendment reenactment of the pre 1968 KRS 95.440(2) voter eligibility qualification.

Another facet of the first issue is posed by another rule of statutory interpretation:

... Where two statutes deal with the same subject matter, the one treating it in a particular manner is preferred over the general. This is true where the specific statute is the latter of the two....

Heady v. Commonwealth, Ky., 597 S.W.2d 613 (1980); Schooler, supra. Here the 1980 KRS 95.440(2), the latter statute of the two, treats the subject in a particular manner, while the 1968 KRS 15.135 treats it in a general manner. Therefore, the 1980 enactment of KRS 95.440(2) is to be preferred.

We conclude that the 1980 enactment of the amendment to KRS 95.440(2) repealed by implication the provision of KRS 15.135, and Tolson, because he was not a qualified voter in Boyle County, did not qualify as a police officer of the City of Danville at the time he issued the DUI citation against Bogard.

The second issue can be dealt with in a more summary manner. If KRS 15.135 had not been impliedly repealed as we have held, there would be no question about the legality of Tolson’s issuance of the DUI citation on Bogard. Since all legal requirements would have been met by his appointment he would have functioned as a “de jure” officer. We agree with the Commonwealth in that the trial court did not find Tolson to be a “de jure” officer. In its order it stated that his actions “were those of an officer de jure” not that he functioned as one. He was a “de facto” officer — that is he was acting under color of authority and as far as the public or third persons are interested, acting as if he were a “de jure” officer. See Trimble County Fiscal Court v. Trimble County Board of Health, Ky.App., 587 S.W.2d 276 (1979). As such his official acts, performed in good faith, are made valid from motives of public policy to preserve third persons’ and the general public’s rights. His acts cannot be attacked in a collateral proceeding. Healy v. City of Covington, Ky., 202 S.W.2d 725 (1947). See also Burkhart v. Blanton, Ky., 635 S.W.2d 328 (1982). The logic of Bogard’s conclusion and argument that validating Tolson’s actions does not preserve the rights of the general public, completely escapes us. Any criminal citation or charge, including DUI, is prosecuted by the Commonwealth on behalf of the general public. Dismissal of those charges by the district court certainly was against the interests of the general public.

We conclude, therefore, that Tolson’s citation of Bogard was not invalid and the district court’s dismissal of the charges was inappropriate. Since the dismissal of the charges was pursuant to Bogard’s own preliminary motions and prior to the empaneling of a jury or an announcement of readiness, it did not constitute jeopardy. This case should be remanded to the Boyle County District Court for reinstatement and trial of the DUI charges against Bo-gard.

The order of the Boyle Circuit Court is AFFIRMED and this case is REMANDED to the Boyle County District Court for proceedings consistent with this opinion.

REYNOLDS, J., concurs.

HAYES, C.J., concurs by separate opinion.

HAYES, Chief Judge,

concurring:

I concur in the result reached by the majority. I would hold, however, that KRS 95.440(2) effective as of July 15, 1980 is constitutionally impermissible as there is no rational or reasonable basis for the “qualified voter” requirement nor is there any compelling state interest for such a requirement. Therefore, KRS 15.335 as enacted in 1968 is still effective and applies here.

      . "Officers” referred to in Section 234 of the Kentucky Constitution are only those directly named and designated in the Constitution. City of Newport v. Schindler, Ky., 449 S.W.2d 17 (1970).


author: COMBS, Judge. GUDGEL, Judge,

text:
    Daniel D. STEWART, Jr., Betsy R. Stewart, Mary Deronda Stewart Rieke, James C. Rieke and William Stewart, Appellants, v. Delma SIDDENS, Freda Siddens, Big Branch Land & Mineral Company, Inc., Robert Henry Ivey, Charlotte Ivey, Emolyne S. Churchill, Richard Gerrish III, Susan Ivey, Terry Ivey, Lorraine Risen, Plastics Universal Corporation, Ada Mining Corporation and Adams Resources & Energy, Inc., Appellees. PLASTICS UNIVERSAL CORPORATION, Ada Mining Corporation and Adams Resources & Energy, Inc., Appellants, v. Delma SIDDENS, Freda Siddens, Big Branch Land & Mineral Company, Inc., Robert Henry Ivey, Charlotte Ivey, Emolyne S. Churchill, Richard Gerrish III, Susan Ivey, Terry Ivey, Lorraine Risen, Daniel D. Stewart, Jr., Betsy R. Stewart, Mary Deronda Stewart Rieke, James C. Rieke and William Stewart, Appellees.
    Court of Appeals of Kentucky.
    Nov. 9, 1984.
    Discretionary Review Denied and Opinion Ordered Published by Supreme Court April 24, 1985.

      C. Kilmer Combs, Wyatt, Tarrant & Combs, Lexington, for Daniel D. Stewart, Jr., Betsy R. Stewart, Mary Deronda Stewart Rieke, James C. Rieke and William Stewart.
    Gordon W. Moss, Hays & Moss, Lexington, for Plastic Universal Corp., Ada Mining Corp., and Adams Resources & Energy, Inc.
    Carl R. Clontz, Clontz & Cox, Mount Vernon, for Delma Siddens, Freda Siddens, and Big Branch Land & Mineral Co., Inc.
    D.H. Robinson, Louisville, for Robert Henry Ivey, Charlotte Ivey, Emolyne S. Churchill, Richard Gerrish, III, Susan Ivey, Terry Ivey, and Lorraine Risen.
    Before COMBS, GUDGEL and HOWER-TON, JJ.
   COMBS, Judge.

This appeal concerns ownership of a tract of real property in Knox County.

Flem D. Sampson acquired a large amount of realty in Knox, Clay and Laurel counties. Prior to his wife’s death, he conveyed 157 separate tracts of land to a Trustee who conveyed the same land to Sampson and his wife. When his wife died, Sampson acquired a one-third interest for life, and the Sampson children acquired the remainder, as well as two-thirds fee simple interest in Mrs. Sampson's realty.

In 1963 at the age of 90 years, Sampson conveyed to D.D. Stewart 157 separately described tracts referring to the deed from the Trustee as his source of title. Following the descriptions and the source of title, but before the habendum clause, the deed contained the following provision:

It is agreed by and between the parties hereto that this conveyance is intended to cover all the real estate which F.D. Sampson now owns in Knox, Clay and Laurel Counties, Kentucky with the exception of approximately 300 acres, more or less, around the F.D. Sampson home on Sampson Hill near Barbourville, Knox County, Kentucky, and if any tract of land has been left out of this conveyance — by mistake or inadvertency — the party of the first part agrees to execute a separate conveyance to the party of the second part herein covering such lands at no additional costs to the parties of the second part herein.

About eleven months after Sampson made this conveyance, he was declared incompetent and his daughter was appointed as his committee. The committee filed suit to have the deed to Stewart set aside on grounds of lack of mental capacity and undue influence. Stewart answered, generally denying the allegations of the complaint and did not file a counterclaim. The suit was dismissed as settled.

The settlement agreement provided that the Sampson children would convey their inherited interests in the 157 tracts to Stewart; that Stewart would pay to the committee the amount he agreed to pay to Sampson; and Sampson's liability under the general warranty would be limited to $2.00 an acre.

Fourteen years later, the Stewart heirs leased coal on property Sampson owned when he conveyed to Stewart, but was not specifically described in the deed. Suit was filed to determine title. On motions for summary judgment, the Knox Circuit Court held that Sampson had conveyed this property through the provision quoted above, but that the settlement agreement acted as a deed from Stewart to convey the undescribed property to Sampson and his heirs.

On appeal, this Court affirmed the trial court’s interpretation of the Sampson deed, but reversed as to the effect the trial court gave the settlement agreement. The relevant portion of that opinion is as follows:

As to the court’s holding with respect to the settlement agreement, we believe that summary judgment was improperly granted. The appellants correctly argue that the agreement, which fails to name a grantee, to describe property to be conveyed or to manifest a present intent to make a conveyance is not itself a deed. On the other hand, it is well settled in our law that the doctrine of equitable estoppel extends to real estate as well as personal estate. The agreement may be evidence supporting a reasonable inference that Mr. Stewart intended thereby to relinquish any claim to land other than the 157 tracts or of his agreement that the deed was intended to convey only those tracts. But this is only one reasonable inference which could be drawn from the undisputed facts in the record. Another is that the agreement and second deed had as their sole purpose the limiting of Mr. Sampson’s liability on his warranty. Where conflicting reasonable inferences may be drawn from undisputed facts, summary judgment is not proper. [citations omitted].

On remand the circuit court adjudged the Sampson heirs owners of the property in dispute under the following conclusion of law:

The Court of Appeals has given guidance to this Court by outlining the reasonable inferences that may be drawn from this record:
1. Stewart intended to relinquish any claim to land other than the 157 Tracts, or
2. Stewart agreed that the deed was intended to convey only 157 Tracts, or
3. The sole purpose of the agreement and deed was to limit Sampson’s liability on the covenant of general warranty.
The Court concludes that taking into consideration the totality of the circumstances, the effects of the uncontradicted writings, the benefits bestowed on the Stewarts of full ownership and good title to the 157 Tracts point to inferences one and two of the three outlined by the Court of Appeals as being the more reasonable.

We agree with the trial court that Stewart agreed either to relinquish any claim to lands other than the 157 tracts or that the deed only conveyed the 157 tracts. The agreement at issue, entitled Agreement of Compromise and Settlement, was the basis of the dismissal of the committee’s action to set aside the Sampson deed. The only issue in that action was whether Stewart had any valid interest in any land owned by Sampson. There was no counterclaim and no other issue was raised by the pleadings.

At best, Stewart had only one-half interest in the 157 tracts and had he counterclaimed for Sampson’s breach of warranty, he would have remained obligated to pay about one-half of the purchase price. Mercantile Trust Co. v. South Park Residence Co., 94 Ky. 271, 22 S.W. 314 (1893); Haas v. Gahlinger, Ky., 248 S.W.2d 349 (1952). On the other hand, the Sampson children had no obligation whatsoever to Stewart.

If the appellants' contentions are correct, the Sampson children conveyed their one-half interest in the 157 tracts for no consideration. Stewart was obligated to pay the amount he agreed to pay under the agreement. He did not agree to pay the Sampson children, but Sampson’s committee. There was no counterclaim or other issue raised that would have imposed liability on Sampson. Further, the warranty provisions did not necessarily limit Sampson’s liability. If the acreage is as the appellees suggest, Sampson’s potential liability would be greater than the purchase price. Normally the purchase price is the limit of the warrantor’s liability. Haas, supra.

The inference that Stewart had agreed not to claim lands not specifically described by the deed is supported by comparing the language of the committee’s complaint and that used in the agreement. The complaint reads, in part, as follows:

... D.D. Stewart procured from Flem D. Sampson a deed dated November 2, 1963, wherein the said Flem D. Sampson purported to convey to said defendant vast boundaries of land which included all of the real estate owned by Flem D. Sampson throughout various counties in southeastern Kentucky, including Clay County, and excepting only a tract of land near Barbourville, Knox County, Kentucky, whereon the home and residence of Flem D. Sampson was located.

The agreement reads, in part, as follows:

Whereas, by deed dated November 2, 1963, Flem D. Sampson conveyed to D.D. Stewart some one hundred fifty-seven (157) tracts of land (or mineral rights, called land) ...

There is a clear inference that in settling the claim of the committee, the parties agreed that the deed conveyed the tracts specifically described rather than all of Sampson’s property in the three counties except his home.

A person is estopped from questioning the existence or effect of a contract when he has asserted its existence to his benefit or the other party’s detriment. 17 Am.Jur.2d Contracts § 9 (1964). Sampson’s Committee and his children have forsaken any claim they had to the 157 tracts of land. Stewart, rather than risking any title, has a clear title to the 157 tracts. Those in privity with Stewart, his heirs and their assigns, having received benefit from his contract to the detriment of Sampson and his heirs may not now deny the effect of his agreement.

We think it would be worthwhile for the trial court’s Master Commissioner to execute a deed to the rightful owners of all known property that Mr. Sampson owned, which was not specifically described in his deed to Stewart.

The judgment of the Knox Circuit Court is affirmed.

HOWERTON, J., concurs.

GUDGEL, J., dissents.

GUDGEL, Judge,

dissenting:

I respectfully dissent. A reading of this court’s previous opinion clearly establishes that it was not intended to finally adjudge both issues addressed in that appeal. Only one issue was finally determined, i.e. that the deed from Sampson to Stewart conveyed Mr. Sampson’s interest in all of his real estate in Knox, Clay, and Laurel Counties except 300 acres known as Sampson Hill to Mr. Stewart. The remainder of the trial court’s summary judgment was reversed. This court did indicate, however, that the defense of equitable estoppel might apply to this case, and that the settlement agreement between Stewart and the Sampson heirs was evidence which bore on the issue. Significantly, though, our opinion did not state that the settlement agreement, standing alone, was sufficient evidence to prove the defense.

As with any affirmative defense appel-lees had the burden of proof on the issue of equitable estoppel. Unfortunately on remand no further proof was adduced by either side. At the time the court entered a final judgment on the merits, therefore, the only evidence before it which bore on the issue of appellees’ defense of equitable estoppel was the settlement agreement. In my opinion that agreement, standing alone, was insufficient as a matter of law to meet appellees’ burden to prove their defense of equitable estoppel.

Accordingly, I would reverse the court’s judgment with directions that it enter a judgment in favor of the appellants in both appeals.


author: LESTER, Judge.

text:
    Larry James MACKLIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 9, 1984.
    Discretionary Review Denied April 24, 1985.
    J. David Niehaus, Daniel T. Goyette, Louisville, for appellant.
    David L. Armstrong, Atty. Gen., W. Bruce Cowden, Jr., Asst. Atty. Gen., Frankfort, for appellee.
    Before CLAYTON, HOWARD and LESTER, JJ.
   LESTER, Judge.

This is a criminal case in which Larry Macklin appeals from a judgment convicting him of second-degree burglary. He alleges three grounds for reversal: (1) that the jury was not properly instructed; (2) that the court erred in refusing his request for a transcript of the first trial; and (3) that the court erred in overruling appellant’s motion to dismiss on the grounds of former jeopardy.

On October 18, 1982, the Jefferson County Grand Jury returned an indictment charging appellant with second-degree burglary. On March 9,1983, a jury found him guilty and sentenced him to five years’ imprisonment. However, this verdict was set aside and Macklin was granted a new trial on the basis that certain information should have been disclosed by the Commonwealth prior to trial. The granting of a second trial is not questioned on appeal; however, Macklin’s counsel at the second trial, not being the same attorney who had represented him in the first proceeding, appeals from the court’s denial of his motion to obtain a transcript of the first action.

As to this issue, both sides rely on Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971). In Britt, the Supreme Court held that (1) an indigent is entitled to some form of transcript of a mistrial in order to prepare for his new trial, but (2) any equivalent alternative to an actual transcript meets this requirement. That case also established that the burden of showing that the alternative is adequate rests upon the Commonwealth.

This court has been able to find only two Kentucky cases which have previously addressed the question of whether an alternative was equivalent to an actual transcript.

In Cardine v. Commonwealth, Ky., 623 S.W.2d 895 (1981), our Supreme Court held that a narrative statement of trial proceedings was an adequate substitute for the transcript, itself. The statement, in Car-dine, was agreed upon by both parties and prepared through the joint cooperation of the trial judge, defense counsel, appellant, and the prosecutor.

In Simmons v. Commonwealth, Ky. App., 576 S.W.2d 253 (1978), this court held that the Commonwealth failed to meet its burden of showing the availability of some equivalent alternative to the trial transcript which was denied the appellant.

Neither of these cases address whether a tape recording is an adequate alternative device. Appellee, in his brief, directed our attention to U.S. v. Vandivere, 579 F.2d 1240 (10th Cir.1978), where that court held that a tape recording fulfilled the same functions as a written transcript. However, even appellee admits that in Vandi-vere, the transcript was not of a prior trial but of a preliminary examination; the same counsel represented the defendant; and only 18 days elapsed between the two events.

In the case at bar, there were two trials, separated in time by approximately seven months, with different attorneys representing the defendant at the two proceedings. If we must look to cases from other jurisdictions, we believe U.S. v. Jonas, 540 F.2d 566 (7th Cir.1976), presents a closer analogy-

The indigent appellant was represented by new counsel at the retrial, as was also the case in Jonas, supra, and Simmons, supra. The motion for a transcript of evidence from the first trial was summarily overruled. Appellant’s counsel at the second trial informed the court that the tapes were not completely audible and that he had no way of locating, with any simplicity, portions of testimony. We believe, based on all of the circumstances of this case, that a new trial should be granted. In so deciding, we quote from the Jonas opinion cited herein:

By our decision today we do not establish a per se rule that the government must provide a transcript following a mistrial. Under Britt there still may be available “an informal alternative which appears to be substantially equivalent to a transcript.” However, in the overwhelming majority of cases we do not perceive that tape recordings or judicial notes will suffice. Admittedly there may be some trials where the testimony is short, simple and straightforward so that the preparation of a transcript would be unnecessary. Or there may be collateral proceedings where a transcript is not required. But in the difficult cases we encourage the policy of ordering a free transcript as the best alternative. Mistrials are not that plentiful so that requiring a transcript would place an unusual cost or burden upon the administration of criminal justice. (Footnotes omitted). Jonas, 540 F.2d at 573.

Having thus determined that appellant Macklin is entitled to a new trial, we now turn to his claim that the second trial was barred by the prohibitions against double jeopardy.

Both parties again point to the same case as support for their respective positions. Stamps v. Commonwealth, Ky., 648 S.W.2d 868 (1983), set out the standard for applying the double jeopardy clause of the Kentucky Constitution. That case adopted the language of Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982), wherein the court held that:

the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial, (emphasis added)

Our review of the record reveals that there was no intentional prosecutorial provocation which would invoke the bar of double jeopardy. The trial judge was present at the proceedings below and made specific findings that the Commonwealth acted in good faith and that intentional provocation was absent. Stamps, supra. These findings will not be set aside unless clearly erroneous. Robinson v. Wade, 686 F.2d 298, 309 (5th Cir.1982); Hoffman v. Russell Sav. & Loan, Ky., 390 S.W.2d 644 (1965). For the above reasons, we do not find that retrial is or was barred.

Appellant’s final argument is based on the trial court’s refusal to give an instruction on receiving stolen property under $100. The trial judge based his decision on the facts that the value of the property had not been testified to, no evidence was presented to support such an instruction and opined that receiving stolen property is not a lesser included offense of burglary.

Neither side put on any evidence as to the value of the property that was stolen. Macklin correctly points out that the burden is on the Commonwealth to prove the value of the property received in a prosecution for that charge. Lee v. Commonwealth, Ky.App., 547 S.W.2d 792 (1977). However, this was not a prosecution for receiving stolen property, but rather the indictment charged appellant with burglary in the second-degree and complicity under KRS 511.030 and KRS 502.020. Receiving stolen property is a separate offense and not a lesser included offense of burglary. In fact, the Supreme Court has held that an individual may be convicted of both of these crimes if he is charged with those in the indictment. Sebastian v. Commonwealth, Ky., 623 S.W.2d 880 (1981). If such an action had happened here, appellant would most likely be protesting that result on appeal. Instructions should only present the law applicable to the facts proven and no theory of the case which is unsupported by the evidence is entitled to an instruction. Pilon v. Commonwealth, Ky., 544 S.W.2d 228 (1976); Blaine v. Commonwealth, Ky., 459 S.W.2d 759 (1970). We do not find the trial court’s determination that the evidence did not justify such an instruction to be in error.

Accordingly, the judgment must be reversed and a new trial granted the appellant.

All concur.