text:
    Wilfred Joseph MILLER, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 13-83-062-CR.
    Court of Appeals of Texas, Corpus Christi.
    Jan. 3, 1985.
    Rehearing Denied Jan. 31, 1985.

      Joseph A. Connors, III, McAllen, for appellant.
    Robert J. Salinas, Edinburg, for appellee.
   OPINION

PER CURIAM.

In a jury trial appellant was convicted of aggravated robbery. Punishment, also determined by the jury, was assessed at twenty years’ imprisonment and a $5,000.00 fine. The case before us bore cause number CR-845-82-E at the trial court level. The offense charged by the indictment under this cause number allegedly occurred on or about April 20,1982. The complaint for the April 20th offense was signed on August 28, 1982, by Gilbert Garza, Justice of the Peace, and by Officer Alejandro Moreno, complainant. A warrant for appellant’s arrest was issued on August 28, 1982, for the offense of “Aggravated Arm [sic] Robbery”; it also named Moreno as complainant and was signed by Gilbert Garza.

The record contains another complaint which is dated August 27, 1982. It was signed by Officer Ventura Cerda, complainant, and Ponciano Cantu, Justice of the Peace. This complaint charges appellant with committing a separate aggravated robbery on or about March 25, 1982. The arrest warrant accompanying this complaint was signed on August 27, 1982, by Cerda and Cantu. Appellant was taken into custody on August 27, 1982. The pretrial hearings on suppression of evidence and voluntariness of the confession, encompassed three cause numbers, including that of the action now before us; identical motions were filed in all three cases. There was no objection that any evidence adduced during the hearings was unrelated to any of the three cases.

In his first, thirty-second, thirty-third and thirty-fourth grounds of error, appellant contends that the complaint alleged by Officer Cerda was not sufficient to support a determination of whether “probable cause” existed for appellant’s arrest; thus, the evidence obtained as a result of that arrest was inadmissible. Appellant reproduced the August 27th complaint in his brief, and alleges that he was arrested based only on that arrest warrant. Appellant ignores the August 28th arrest warrant, which was issued pursuant to the offense charged in this case, and which includes a notation that it was executed on August 30, 1982.

Appellant has made no attempt to show that the August 28th complaint and warrant arose as a result of the allegedly tainted August 27th arrest, and we refuse to speculate that that is so.

However, even if the issuance of the challenged warrant did lead to appellant’s invalid arrest and detention, we hold, for the reasons stated in determining appellant’s other grounds of error, infra, that the evidence adduced to convict appellant was either purged of its primary taint or admissible in its own right. Appellant’s first ground of error is overruled.

In his second ground of error appellant contends that the trial court erred by refusing, at the conclusion of the hearing on the motion to suppress, to allow appellant to introduce into evidence the arrest warrant and supporting affidavit concerning the March offense. The request came after both the State and appellant had presented closing argument; appellant's motion to re-open the hearing in order to offer the evidence was denied. In his third and fourth grounds of error, appellant contends that all the inculpatory evidence obtained as a result of his arrest should have been suppressed because the State failed to present either the arrest warrant or the supporting affidavit for the March offense to the trial court at the hearing on the motion to suppress.

We note first that these documents pertain to the March offense. Also, the record reflects that defense counsel was provided with copies of both the requested arrest warrant and the underlying affidavits. Counsel thoroughly cross-examined Officer Cerda with the affidavit to which he swore before Judge Cantu. At the close of the hearing, counsel sought only to have the arrest warrant and the complaint introduced into evidence. There was no objection that the documents were not expressly presented to, or considered by, the trial court, and the record will not support such a determination as a matter of law. Finally, we note that appellant did not connect the challenged documents with the warrant and affidavit issued for the alleged April offense.

Immediately after denying appellant’s request to reopen the hearing on the motion to suppress in order to introduce the arrest warrant and the underlying complaint, the trial court proceeded to hear the motion on the voluntariness of appellant’s confession. During this portion of the hearing, appellant was allowed to introduce both documents into evidence, and they are a part of the appellate record. We find no reversible error from the trial court’s actions, and appellant’s second, third, and fourth grounds of error are overruled.

In his fifth through tenth grounds of error appellant contends that the trial court erred by allowing the State to introduce “all evidence obtained as fruit of the illegal arrest.” Inter alia, appellant complains of the admission of pistols and magazine clips obtained from him; of the handbag he allegedly used to carry clothing worn during the offense; and of food stamps and cash. Appellant argues that the evidence was illegally obtained pursuant to a search without a warrant, and that he could not “legally” have voluntarily consented to the entry into his residence because he was under illegal arrest at the time.

An exception to the rule requiring a warrant and probable cause for a search is that the search was conducted with the consent of the accused. However, the consent can only be effective if the State clearly proves that the consent was freely and voluntarily given. “Whether consent to search was voluntary is a question of fact to be determined from the totality of the circumstances.” Fancher v. State, 659 S.W.2d 836 (Tex.Crim.App.1983).

This analysis presumes, however, that a search occurred at all. The .25 caliber automatic pistol and its magazine clip were “seized” after appellant pointed the weapon at the arresting officers, just before he was to be “strip-searched” at police headquarters. In addition, Officer Park testified that appellant requested that the police officers take him back to his apartment to recover some personal items; that no search of the apartment was performed; that appellant gave the officers his consent to enter his apartment; and that appellant “hand[ed] over” the .22 caliber revolver. Officer Cerda iterated that appellant’s apartment was not searched, and stated that appellant identified the .22 caliber pistol as being the one used in “the Mercedes robbery.” Officer Cerda further testified that after leaving appellant’s residence, appellant himself requested them to return because “[h]e wanted to give us some other property [including] a handbag which ... he said he used to carry the clothing that he used in the Mercedes robbery.”

We hold that the record shows that appellant voluntarily produced the items whose admission into evidence is now challenged, and appellant’s fifth through tenth grounds of error are overruled.

In his eleventh ground of error appellant contends that the trial court erred by finding that his confession was given voluntarily because the evidence showed that he was taken before a magistrate only after an unreasonable delay. Similarly, in grounds of error twelve and thirteen appellant contends that the confession, introduced into evidence as State’s Exhibit Number Nine, should have been suppressed as “a fruit of [his] illegal arrest.”

Out of the presence of the jury, the prosecutor stated that State’s Exhibit Nine “is a true and correct copy [of appellant’s confession], except that we have excised portions ... that relate to extraneous offenses.” Appellant’s counsel stipulated that the excised portions of the confession deleted any reference to extraneous offenses to the satisfaction of the defense, and renewed his pre-trial objections.

State’s Exhibit Nine contained numerous deletions. Appellant first admitted plotting to rob an HEB store at an unspecified time in March of 1982; however, the confession did not state the date on which the actual offense occurred. The confession was signed on August 27, 1982, the day before the arrest warrant in the cause before us was even issued. It is thus not entirely clear that State’s Exhibit Nine applies to the appeal now before us. At the hearing on the voluntariness of the confession, Officer Cerda testified that after appellant was arrested he was repeatedly read his rights, never requested an attorney or asked to terminate the hearing, and eventually admitted his guilt and sought to cooperate with the police. Appellant led the police to inculpatory evidence and demonstrated how one robbery was effected.

The penultimate typed paragraph of the confession states that:

“I also want to say that I cooperated with the police and took them to my house and willingly gave them the gun, money, and took them to the place where I burned the junk which I did not have use for from [deletion] robbery. I fully cooperated with the police and worked with them.”

Appellant was arrested about 11:00 a.m. on August 27, 1981;. he began leading police officers to evidence of the crime about 1:00 p.m.; and he was returned to the police station and had signed the confession by about 4:00 p.m. We hold that the trial court did not err in finding that the confession was voluntarily given. Any taint arising from the original arrest was thus removed. Gant v. State, 649 S.W.2d 30 (Tex.Crim.App.1983).

Thus, even if the arrest and detention were improper, we find no causal connection between the delay and the making of the confession. DeBolt v. State, 604 S.W.2d 164 (Tex.Crim.App.1980); Maloy v. State, 582 S.W.2d 125 (Tex.Crim.App.1979). Appellant’s eleventh, twelfth, and thirteenth grounds of error are overruled.

In his fourteenth and fifteenth grounds of error appellant contends that certain oral statements allegedly made by him should not have been admitted into evidence. Officers Ventura Cerda and Jerry Park testified as State’s witnesses that appellant admitted to them (1) “that he had burned some items from the Mercedes robbery” and (2) “that he had committed the Mercedes robbery but could not figure out how we had found out about it.”

Appellant concedes that no trial objection was made to his testimony, but argues on appeal not only that the statements were “fruits of appellant’s illegal arrest,” but also that they “were barred from admission by TEX.CODE CRIM.PROC.ANN. Art. 38.-22, § 3, (Vernon 1981).”

Section 3(a) of Article 38.22 (Vernon Supp.1982-83) provides that no oral statement made by the accused “as a result of custodial interrogation shall be admissible against [him] in a criminal proceeding” unless certain exceptions apply. Section 3(c) provides that:

“Subsection (a) of this section shall not apply to any statement which contains assertions of facts or circumstances that are found to be true and which conduce to establish the guilt of the accused, such as the finding of secreted or stolen property or the instrument with which he states the offense was committed.”

Officer Park testified that appellant voluntarily escorted police officers to the location where he had burned the “items from the Mercedes robbery,” and that he observed “a lot of ashes” at that location, which indicated that items had been burned. We think that this is the point of Section 3(c), and hold that the statement was admissible. See Marini v. State, 593 S.W.2d 709 (Tex.Crim.App.1980).

The second statement, admitting the Mercedes robbery, was made by appellant at police headquarters, after he had produced a hidden pistol and pointed it at the police officers. He made the statement while he had the pistol. We hold that the inculpatory statements were not the product of custodial interrogation, were made voluntarily, and were thus purged of any possible taint arising from the allegedly illegal arrest. Garrison v. State, 642 S.W.2d 168 (Tex.Crim.App.1982). Appellant’s fourteenth and fifteenth grounds of error are overruled.

In his sixteenth ground of error appellant contends that the trial court erred by neglecting to make findings of fact and conclusions of law after overruling appellant’s motion to suppress evidence seized in connection with his arrest. At the conclusion of the hearing the trial court stated:

“The Court overrules Defendant’s Motion to Suppress the Evidence in each of the three indictments pending before the Court.
Now, are you ready to proceed to hearing on the Voluntariness of the Confession or the Statement of the Accused?”

No findings of fact or conclusions of law were requested, and there was no objection to the trial court’s action. The hearing to determine the voluntariness of appellant’s confession immediately ensued, after which the trial court did state its complete findings, which consisted of nearly four pages in the statement of facts. Each of the cases cited by appellant discussed situations involving voluntariness of the defendant’s confession where the trial court erred by not stating its findings pursuant to the holding of the case of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). No variance from those holdings is presented here. Appellant’s sixteenth ground of error is overruled.

In grounds of error seventeen through twenty-two, appellant contends that he should have been granted his six requested jury instructions regarding the voluntariness, truthfulness, and evidentia-ry value of his confession. The State contends that the issues sought were either not raised by the evidence or were covered in the charge which was given. Appellant’s argument under this ground of error is conclusory and fails to apply the facts of this case to the holdings in the authority cited. In addition he fails to direct the Court to any portion of the fifteen volume record where any evidence supporting his requested issues might be found. These grounds of error are not properly briefed, and we deem them waived. Phillips v. State, 511 S.W.2d 22 (Tex.Crim.App.1974).

The charge did instruct the jury that:

“You are instructed that under our law a confession of a defendant made while the defendant was in jail or other place of confinement or in the custody of an officer shall be admissible in evidence if it appears that the same was freely made without compulsion or persuasion, provided, however, that it be made in writing and signed by the accused, and show that the accused has been [given his “Miranda ” warnings], prior to making such statement or confession, by the person to whom the same is made .... So, in this case, if you find from the evidence, or if you have a reasonable doubt thereof, that prior to the time the defendant gave the alleged statement or confession to Officer VENTURA CERDA, if he did give it, the said Officer VENTURA CER-DA did not warn the defendant in the respects outlined above, or as to any one of such requirements, then you will wholly disregard the alleged confession and not consider it for any purpose nor any evidence obtained as a result thereof; if, however, you find beyond a reasonable doubt that the aforementioned warning was given the defendant prior to his having made such statement, if he did make it, still, before you may consider such statement as evidence in this case, you must find from the evidence beyond a reasonable doubt that prior to and during such statement, if any, the defendant knowingly, intelligently and voluntarily waived the rights hereinabove set out in the said warning, and unless you so find, or if you have a reasonable doubt thereof, you will not consider the statement or confession for any purpose whatsoever or any evidence obtained as a result of same.”

Police Investigator Ventura Cerda testified that he arrested appellant and read him his Miranda warning rights a total of four times, and that appellant signed each page of a confession which also contained the warnings. Officer Cerda further testified that appellant placed his initials by each of the warnings; that appellant read the entire statement before he signed it; and that the statement was given freely and voluntarily. Our review of the record convinces us that appellant’s rights were properly protected by the charge, and his seventeenth through twenty-second grounds of error are overruled.

In his twenty-third and twenty-fourth grounds of error appellant contends that the State was allowed to introduce prejudicial and inflammatory testimony showing that appellant committed an extraneous offense.

Officers Jerry Park and Ventura Cerda both testified that after appellant had been arrested and transported to the police station, he was subjected to a “strip search.” As he was removing his pants, he produced a .25 caliber automatic handgun, which he pointed at the officers. Appellant was quickly convinced to surrender the weapon, however.

Had appellant produced the pistol immediately after his arrest, there is no doubt that the evidence would be admissible as res gestae of the arrest. Archer v. State, 607 S.W.2d 539 (Tex.Crim.App.1980); Milligan v. State, 554 S.W.2d 192 (Tex.Crim.App.1977). In the case before us, appellant did not produce the pistol until he had been transported to the police station, so it is unclear whether the evidence is admissible under the “res gestae” exception, although the fact that the pistol was concealed on appellant’s person would seem to mitigate in favor of admissibility. See Heflin v. State, 574 S.W.2d 554 (Tex.Crim.App.1978).

We perceive an analogy between this case and authority holding that evidence showing escape and flight is generally admissible on the issue of guilt. Rumbaugh v. State, 629 S.W.2d 747 (Tex.Crim.App.1982); McWherter v. State, 607 S.W.2d 531 (Tex.Crim.App.1980). Similarly, we note that evidence showing that appellant resisted arrest may be admissible. Arivette v. State, 513 S.W.2d 857 (Tex.Crim.App.1974); Johnson v. State, 156 Tex.Cr.R. 534, 244 S.W.2d 235 (1951). We find that the challenged testimony was probative of and relevant to the determination of appellant’s guilt. In addition, even if the testimony were improperly admitted, we would find no reasonable possibility that such evidence contributed to appellant’s conviction. Vanderbilt v. State, 629 S.W.2d 709 (Tex.Crim.App.1981). Appellant’s twenty-third and twenty-fourth grounds of error are overruled.

In his twenty-fifth ground of error appellant contends that the trial court erred by sustaining the State’s challenge-for-cause of Juror Reyes Trevino, after individual voir dire of Mr. Trevino was completed. In response to questions posed by the trial court, Mr. Trevino stated that he could not be fair, either for or against appellant. In response to the prosecutor’s questions, Mr. Trevino conceded that he “would be in favor of this Defendant” and that he “would try to get on [the Defendant’s] side right now.” The Court sustained the State’s challenge for cause. Appellant objected to the trial court’s action without stating the grounds for his objection.

Article 35.16(a)(9) of the Texas Code of Criminal Procedure (Vernon Supp.1982-83) states that either the state or the defense may challenge a juror for cause if the juror “has a bias or prejudice in favor of or against the defendant.” The authority cited by appellant does not vitiate the clear language of Article 35.16(a)(9). Appellant’s twenty-fifth ground of error is overruled.

In his twenty-sixth ground of error appellant contends that the trial court erred by “failing to instruct the jury on the law of accomplice witnesses” when Ms. Patricia Winkler testified for the State. Ms. Wink-ler admitted that she was under indictment for the same aggravated robbery for which appellant was convicted, and she adduced testimony that appellant lived with her; that she drove to the scene of the robbery with him; and that he then committed the offense. Appellant concedes that no request for the charge on accomplice witnesses was made, but argues that such a request was unnecessary because Ms. Wink-ler was an accomplice as a matter of law.

If the evidence shows that a witness is an accomplice witness as a matter of law, the court is under a duty to so instruct the jury. However, it is not always reversible error to fail to so charge the jury, even if the fact of complicity is apparent, if the testimony of the witness is not essential to the conviction. Kerns v. State, 550 S.W.2d 91 (Tex.Crim.App.1977); Miller v. State, 442 S.W.2d 340 (Tex.Crim.App.1969); Gonzales v. State, 441 S.W.2d 539 (Tex.Crim.App.1969). There is sufficient evidence in the record to support appellant’s conviction even without the accomplice testimony, and we find no reversible error from the failure to instruct the jury. Appellant’s twenty-sixth ground of error is overruled.

In his twenty-seventh and twenty-eighth grounds of error appellant contends that the State failed to prove that he obtained and maintained control over exactly $3,000.00. The indictment stated, in pertinent part, that appellant committed the aggravated element of the offense “while in the course of committing theft and with intent to obtain and maintain control of property, to-wit: $3,000 in money, from Maria Catarina Sanchez and Richard Martinez. ...”

In the case of Smallwood v. State, 607 S.W.2d 911 (Tex.Crim.App.1979), the Court of Criminal Appeals held that the present Penal Code characterizes the offense of robbery as assaultive in nature, rather than as an aggravated form of theft; “[cjonsequently, the description of the property taken is not legally essential to the validity of an indictment charging the offense of robbery.” Any unnecessary words or allegations used to describe that which is not legally essential to the validity of the indictment may be rejected as sur-plusage.

“In a robbery prosecution it is not necessary to prove that all the property alleged was taken. Proof that any part thereof was taken is sufficient.” Davis v. State, 532 S.W.2d 626 (Tex.Crim.App.1976); Sirls v. State, 511 S.W.2d 55 (Tex.Crim.App.1974). Appellant’s twenty-seventh and twenty-eighth grounds of error are overruled.

In his twenty-ninth and thirtieth grounds of error appellant contends that the evidence is insufficient to support his conviction. Appellant argues that his confession was inadmissible, and that, without the confession, the only inculpatory evidence remaining is the accomplice testimony of Ms. Winkler. However, we have previously determined that appellant’s confession was voluntarily given, and it is settled that an accused’s confession can serve to corroborate the testimony of an accomplice witness. Alonzo v. State, 591 S.W.2d 842 (Tex.Crim.App.1979). In addition, we hold that sufficient evidence, independent of both the accomplice testimony and the challenged confession, was adduced to support the conviction. Appellant’s twenty-ninth and thirtieth grounds of error are overruled.

In his thirty-first ground of error appellant contends that his indictment was fundamentally defective because it failed to commence with the phrase “In the name and by authority of the State of Texas.” On the indictment form used by the State, above the required statutory preface, is printed identifying information concerning this case, including the case style and number, the offense charged, the bond, the complaint number, the court, and the date of arrest. This information is separated from the formal indictment by a double printed line. The formal indictment does begin with the proper caption. We hold that the identifying information is not part of the indictment. Stansbury v. State, 128 Tex.Cr.R. 570, 82 S.W.2d 962 (1935); Owens v. State, 25 Tex.App. 552, 8 S.W. 658 (1888).

All of appellant’s grounds of error are overruled, and the judgment of the trial court is affirmed.

BENAVIDES, J., not participating.


source: Caselaw Access Project

author: JUNELL, Associate Justice.

license: Public Domain

text:
    John G. MIDDLETON d/b/a Middleton Oil Company, Appellant, v. KAWASAKI STEEL CORPORATION, Appellee.
    No. C14-84-410CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 3, 1985.
    Rehearing Denied Jan. 31, 1985.
    Linda L.S. Moroney, Pannill & Reynolds, Houston, for appellant.
    W. Robert Brown, Orran Lee Brown, Lid-dell, Sapp, Zivley, Brown & Laboon, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Associate Justice.

John G. Middleton, plaintiff below, appeals from a judgment dismissing Kawasaki Steel Corporation granted after the court heard a special appearance motion in which Kawasaki alleged a lack of jurisdiction over its person. The court’s decision to dismiss is based upon two grounds: (1) that Kawasaki Steel Corporation lacks minimum contacts with this forum so that exercise of jurisdiction over it would violate due process and (2) Middleton has not properly invoked the jurisdiction of the court in that it has not alleged the jurisdictional requirements of the Texas Long Arm Statute nor effected service according to that statute. We reverse and remand because we hold that: (1) Kawasaki did have minimum contacts with this forum at the time Middleton’s alleged cause of action accrued and should be subjected to suit in this state; and (2) Kawasaki’s complaints as to service amount to a motion to quash and should not have been considered by the trial court in a Rule 120a special appearance hearing. See Tex.R.Civ.P. 120a.

A brief factual background will introduce the parties and issues. In December 1979 appellant Middleton, as operator in drilling a gas well in Colorado County, Texas, set 250 lengths of steel casing into the well. Oilworld Supply Company sold the casing to Middleton. Kawaski Steel Corporation of Japan (Kawasaki) allegedly manufactured the casing. Middleton alleges that the casing separated and the well had to be plugged back at a shallower, less productive zone.

In March 1980 Oilworld sued Middleton for payment for the pipe casing. Middleton filed a counterclaim for damages against Oilworld and third-party claims against Kawasaki and Japan Cotton Company (Japan Cotton), a subsidiary of Nichi-men Co., Ltd., the Japanese trading company that had filled Oilworld’s order for Kawasaki casing.

Middleton’s claim against Kawasaki was filed May 25, 1981. In it he alleged that Kawasaki Steel Corporation was a New York Corporation authorized to do business in Texas and could be served with citation by service upon its registered agent Toshi-kazu Tomita at its registered office at 1440 Commerce Building, 914 Main Street, Houston, Texas. The return of service shows that citation was served by a Harris County constable by delivering the petition to “T. Tomita,” a “v/p of the said corp.” in person at the address alleged. If Middleton’s allegations had been correct, service on Kawasaki through Mr. Tomita would have been authorized by Tex.Bus.Corp. Act Ann. art. 8.10(A) (Vernon 1980).

Middleton’s allegations were wrong. Kawasaki Steel Corporation is and was a Japanese Corporation not licensed to do business in Texas. It has never had a registered agent for service of process in Texas. From 1975 until April 1, 1981, Kawasaki maintained an office at 1440 Commerce Building in Houston. On April 1, 1981, less than two months before Middleton’s third-party action was filed, Kawasaki Steel Corporation formed a new, wholly-owned subsidiary, Kawasaki Steel America (Kawasaki America), and transferred its American offices to the subsidiary. The general manager for Kawasaki’s Houston office, Mr. Tomita, became the general manager for Kawasaki America and all employees were transferred from the Japanese corporation to the American corporation. Kawasaki America used the same address and telephone number that had belonged to the parent. Kawasaki Steel America is a New York Corporation licensed to do business in Texas and Mr. Tomita is its registered agent for service of process at the Commerce Building address.

These facts distinguish this case from all those cited by the parties in that service of process was not even attempted through the Texas Long Arm statute, Tex.Rev.Civ. Stat.Ann. art. 2031b (Vernon 1964 & Supp. 1984).

We consider only the first six points of error proposed by appellant. Appellant sought and received leave to file a supplemental brief so that he could restate his points of error in technical compliance with the broad scope of the opinion in La Sara Grain Co. v. First National Bank, 673 S.W.2d 558, 568 (Tex.1984). This leave did not authorize him to add two new points of error, as appellant attempted to do.

Points of error one, two and five state that the trial court erred in holding that it lacked jurisdiction because Kawasaki Steel Corporation of Japan had insufficient contacts with Texas when the evidence showed conclusively that the company actively cultivated the Texas market, knew it was selling defective casing to a Texas oilfield supplier and had continuous and systematic contacts in the Houston market. Appellant argues that as a matter of law Kawasaki’s amenability to suit in Texas was established, and alternatively, that the lower court’s findings and conclusions are so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant has offered no guidance concerning the standard of review to which we must adhere. Appellee argues that in reviewing the no evidence claims, we should consider only the evidence and reasonable inferences from the evidence which, viewed in their most favorable light, support the trial court’s findings of fact and disregard all evidence and inferences to the contrary, citing Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982); Estate of Claveria v. Claveria, 615 S.W.2d 164 (Tex.1981); and Stedman v. Georgetown Savings & Loan Association, 595 S.W.2d 486 (Tex.1979). This is the general rule. However, this court is not only reviewing findings of fact, but also the conclusions of law based upon those facts. Conclusions of law are always reviewable. Muller v. Nelson, Sherrod & Carter, 563 S.W.2d 697, 702 (Tex.Civ.App.—Fort Worth 1978, no writ).

We do not agree with appellee that we must presume that sufficient evidence was introduced to support the findings and judgment of the trial court. Appellee cites Yoast v. Yoast, 649 S.W.2d 289 (Tex.1983), a case in which the appellate record contained no statement of facts. Where a statement of facts is contained in the record, as is the case here, findings of fact are not conclusive on appeal if the contrary is established as a matter of law, or if there is no evidence to support the findings. Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950); Armstrong v. Armstrong, 601 S.W.2d 724, 727 (Tex.Civ.App. — Beaumont 1980, writ ref’d n.r.e.).

When the Dallas Court of Civil Appeals reviewed a trial court’s holding that a defendant had insufficient contacts with Texas to be subject to Texas jurisdiction, it accepted all but one of the court’s findings of fact, but noted that “the court’s findings are not, however, a complete reflection of the evidence.” Wright Waterproofing Co. v. Applied Polymers, 602 S.W.2d 67, 70 (Tex.Civ.App.—Dallas), writ ref’d n.r.e. per curiam, 608 S.W.2d 164 (Tex.1980). The appellate court then proceeded to review the other undisputed evidence in the record and reversed the trial court. The court of civil appeals found that the defendant was “doing business” in Texas and that it had sufficient contacts with this forum to acquire jurisdiction over it without offending traditional notions of fair play and substantial justice. 602 S.W.2d at 70-71. See also National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ.App. — Fort Worth 1972, writ ref’d n.r.e.) (no findings of fact mentioned).

We take the same approach. We first will consider the court’s relevant findings of fact and apply the usual “no evidence” standard of review. Then we will look to the uncontroverted evidence in the record that is not reflected in the court’s findings of fact to determine whether its conclusions of law are supported by the evidence as a whole.

We also note at this point that it was Kawasaki’s burden to establish a lack of minimum contacts because it has the burden to prove that it is not amenable to the jurisdiction of a Texas court. Minexa Arizona, Inc. v. Staubach, 667 S.W.2d 563, 565 (Tex.App. — Dallas 1984, no writ); Tex. R.Civ.P. 120a. If the contacts found from the evidence in the record are more than minimum contacts, then the trial court was incorrect in its conclusions of law.

Findings of Fact 42 through 68 relate to the issue of minimum contacts. The court found that Kawasaki Steel Corporation has never maintained an inventory in Texas; does not own real estate or other assets in Texas; is not registered to do business in Texas; has no agent or representative living or stationed in Texas at the time of hearing or at the time service was attempted; does not and did not at time of service maintain an office or place of business in Texas; has no bank accounts or telephone listings in Texas; does not pay Texas taxes; does not and never did advertise its products specifically in Texas or direct advertising at Texas; and at no time solicited or accepted orders for its products directly in or from Texas nor sold any of its products directly to a customer in Texas.

The court also found that Kawasaki products, including the casing that allegedly failed, reach Texas through trading companies in Japan. A Texas customer places an order with a trading company in this country (like Japan Cotton). That trading company forwards the order to its Japanese parent company, which places the order with Kawasaki. Kawasaki has always sold its products to the Japanese trading company f.o.b. Japan and is paid in Japan.

All of these findings of fact are supported by the record. We note that most of them focus on Kawasaki’s contacts with this forum at the time of the hearing in 1984 or time of service in June of 1981. We consider the crucial period for determining Kawasaki’s amenability to process in Texas to be the time when the allegedly defective pipe was sold to Middleton and failed in a Texas gas well in 1979. At that time Kawasaki Steel Corporation did maintain an office in Houston, Texas. See Collins v. Mize, 447 S.W.2d 674, 675-76 (Tex.1969) (“We see no problem of due process when the forum state is determining a controversy arising out of a transaction consummated in the forum state at a time when the defendant himself was a resident of the forum state.”)

Concerning the crucial period, the court found:

71. Kawasaki Steel Corporation maintained an office in Houston, Texas from 1975 until April of 1981. This office was used to provide marketing research and information gathering services in the area. The office was not used to solicit or accept orders for Kawasaki Steel Corporation products.
72. At no time has Kawasaki Steel Corporation initiated a process by which its products are sold to any customer or purchaser in Texas.
77. Kawasaki Steel Corporation has done nothing purposefully to avail itself of the economic benefits of the Texas market.

Of the findings of fact quoted above, we hold that findings 71 and 72 are literally supported by the evidence. Kawasaki did not directly solicit orders from Texas customers through its office in Houston from 1975 to 1981. ' But we hold that finding of fact 77 cannot stand. The converse of the finding is established conclusively in undisputed evidence in the record.

Testimony about the operation of Kawasaki Steel Corporation’s Houston office from 1975 until April 1, 1981, is found in Mr. Tomita’s testimony at the special appearance hearing as well as in his September 1981 deposition which was also before the court as evidence. Both times Mr. To-mita stated that the Kawasaki Steel Corporation office performed essentially the same services and served the same functions as the Kawasaki Steel America office that succeeded it. Before April 1981 the office did sales promotion, marketing research and information gathering activities and after-sales service to Kawasaki Steel Corporation’s customers in North America and Mexico. It acted as liason between Kawasaki Steel Corporation and its customers. It afforded “convenience” to Kawasaki Steel Corporation personnel and others designated by Kawasaki Steel when they visited North America and Mexico. The employees of Kawasaki Steel Corporation became employees of Kawasaki America Corporation on April 1, 1981. The record does not reveal the exact number of employees in 1979, but Mr. Tomita testified at his deposition in September 1981 that 20 people worked in three offices in New York, Los Angeles and Houston.

Another deponent, Hiroaki Kinjyo, manager of Japan Cotton’s steel department, stated that Kawasaki Steel Corporation would occasionally send engineers and representatives from Japan to visit Houston customers to explain new products or the quality of its pipe.

Even if Kawasaki Steel Corporation did not directly solicit or take orders from customers in Texas, it is clear that it was conducting activities in Texas with the purpose of increasing the quantity of its products that reached Texas oil fields. What reason could there be to conduct market research and sales promotion activities in a given area if it were not to enter that market at least indirectly? The fact that Kawasaki does not sell directly, but through Japanese trading companies, does not diminish the fact that it actively sought to have its products end up in Texas. It has “engaged in an activity calculated to extract profits from the markets of Texas.” Uvalde Rock Asphalt Co. v. Consolidated Carpet Corp., 457 S.W.2d 649 (Tex.Civ.App. — Beaumont 1970, writ ref'd n.r.e.).

Both appellant and appellee agree that the analysis of the reach of Texas courts extends to the permissible limits of due process. Both agree that three elements must exist to sustain jurisdiction over Kawasaki: (1) Kawasaki must have purposefully done some act or consummated some transaction in Texas; (2) Middleton’s cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice. U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex.1977); O’Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966). Kawasaki has purposefully canvassed the oilfield market by placing employees in Houston, the center of the oil business in the United States, to do market research and sales promotion. Partly as a result of those efforts it ships to the port of Houston 210 metric tons of steel products annually. Middleton’s cause of action is connected with that purposeful activity. The pipe he purchased from Oilworld was manufactured by Kawasaki. Kawasaki’s own inspection certificates filled out in Japan list Oilworld as the customer and the port of Houston as the shipping destination. The assumption of jurisdiction in Texas does not offend traditional notions of fair play and substantial justice. Kawasaki cannot expect to maintain “eyes and ears” in Texas and yet keep the rest of its corporate self safely in Japan away from Texas plaintiffs.

The particular conclusions of law that are in error are:

42. Kawasaki Steel Corporation has had few direct contacts with the State of Texas. The primary connection between Kawasaki Steel Corporation and the State of Texas has been its maintenance of an office in Houston, Texas from 1975 until April of 1981 and rare visits by personnel of Kawasaki Steel Corporation to Texas. These contacts with this forum are insufficient to satisfy the demands of due process.
45. Kawasaki Steel Corporation has had such minimal contacts with Texas that the maintenance of this suit in this forum would offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of Kawasaki Steel Corporation’s activity in Texas, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties and the basic equities of the situation.
51. Kawasaki Steel Corporation’s contacts with the State of Texas do not suggest that it has purposefully availed itself of the benefits of this forum state.

We hold that the above conclusions of law are in error. Kawasaki should not have been dismissed. Grounds of error one, two and five are sustained.

Appellant’s points of error three, four and six raise the next issue before us: Whether the court properly dismissed Kawasaki on the ground that Middleton did not serve the defendant foreign corporation through one of the methods set out in the Texas Long Arm Statute, Tex.Rev.Civ.Stat. Ann. art. 2031b (Vernon 1964 & Supp.1984).

As noted above, Middleton’s service on Kawasaki was made on the incorrect assumption that it was a New York corporation licensed to do business in Texas. Service under 2031b was not attempted. Kawasaki argues in a cross point that failure to adhere to the statutorily authorized means for service of process deprives a court of personal jurisdiction and that this failure is reason to dismiss the defendant. We agree with Kawasaki that the concept of personal jurisdiction comprises two components: a defendant’s amenability to jurisdiction and service of process. We do not agree that the Texas Rules of Civil Procedure allow a foreign defendant to question the existence of both components in a Rule 120a special appearance.

Rule 120a is available “for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this state.” Tex.R. Civ.P. 120a (emphasis added).

We recognize that numerous courts of civil appeals have affirmed dismissals granted upon special appearance motions when the plaintiff failed to make all the necessary 2031b jurisdictional allegations or when the defendant disproved those allegations. Burgess v. Ancilliary Acceptance Corp., 543 S.W.2d 738 (Tex.Civ.App. — El Paso 1976, writ ref’d n.r.e.); Gathers v. Walpace Co., 544 S.W.2d 169 (Tex.Civ.App. —Beaumont 1976, writ ref’d n.r.e.) and Curry v. Dell Publishing Co., 438 S.W.2d 887 (Tex.Civ.App. — El Paso 1969, writ ref’d n.r.e.). Another court reluctantly affirmed a special appearance dismissal because the plaintiff on appeal was alleging a reason for asserting jurisdiction that was not alleged in his petition or raised at the trial court. TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427 (Tex.Civ.App. — Dallas 1981), writ ref'd n.r.e. per curiam, 639 S.W.2d 450 (Tex.1982).

These cases depend upon the authority of McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965). The Supreme Court in McKanna was deciding the merits of a writ of error after the defendant had suffered a default judgment. “The particularity of pleading required to sustain a default judgment against a direct attack was a critical consideration in that case.” Collins v. Mize, 447 S.W.2d 674, 675 (Tex.1969). A different situation arises when considering the pleadings and proof offered at a Rule 120a hearing. Even in McKanna, the defendant did not escape being haled into a Texas court. The case was remanded for trial because the defendant was presumed to have entered a general appearance when she filed her writ of error. 388 S.W.2d at 930.

We agree with the dissent by Associate Justice Akin in TM Productions, Inc. v. Blue Mountain Broadcasting Co., 623 S.W.2d 427, 434-435 (Tex.Civ.App. — Dallas 1981, writ ref’d n.r.e.) and the majority in Steve Tyrell Productions, Inc. v. Ray, 674 S.W.2d 430 (Tex.App. — Austin 1984, no writ). A court hearing a Rule 120a motion should only consider arguments regarding the forum’s power over the defendant, that is his amenability to process, and not any arguments concerning defects in service.

Our holding does not place a defendant like Kawasaki in the position of choosing either relief under Rule 120a or under a motion to quash service, as appellee argues. There is no reason why Kawasaki could not have limited its Rule 120a special appearance arguments to the lack of minimum contacts issue. If that had failed, it could have immediately filed a motion to quash. In fact, Kawasaki’s special appearance pleading was limited to denying amenability to process. It was only in briefs and argument to the trial court that Kawasaki brought in its claim that dismissal was proper because Middleton did not serve process under art. 2031b. Points of error three, four and six are sustained.

There is no dispute that Kawasaki has received actual notice of the suit. Mr. To-mita forwarded a copy of the process he accepted to the New York office of Kawasaki Steel America and the Tokyo headquarters of Kawasaki Steel Corporation. We remand to the trial court with instructions that Kawasaki Steel Corporation shall be deemed to have entered its appearance at ten o’clock a.m. on the Monday next after the expiration of twenty (20) days after the day on which the mandate of this court is filed in the office of the district clerk of Chambers County, Texas, and that Kawasaki Steel Corporation is deemed to have been duly served so as to require it to appear and answer at that time. See Tex. R.Civ.Pro. 122.


author: CARVER, Justice.

text:
    Charles Augustine HAWKINS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-84-00043-CR.
    Court of Appeals of Texas, Dallas.
    Jan. 8, 1985.
    Lawrence B. Mitchell, Dallas, for appellant.
    Elizabeth L. Phifer, Asst. Dist. Atty., Dallas, for appellee.
    Before CARVER, ALLEN and GUIL-LOT, JJ.
   CARVER, Justice.

Charles Augustine Hawkins appeals his conviction for unlawful possession with intent to deliver a controlled substance, namely, Pentazocine. Trial was before the court without a jury, and punishment, twice enhanced, was assessed by the trial court at twenty-five years imprisonment. In his single point of error, Hawkins asserts that there is insufficient evidence to prove intent to deliver the Pentazocine. We disagree and affirm Hawkins’ conviction.

Lawrence Cummings, an undercover narcotics officer, and Steven Scholl, the arresting officer, testified on behalf of the State. Officer Scholl testified that on September 24, 1983, he and his partner were routinely patrolling a building at 1716 Nomas Street where drug trafficking was known to take place. The officer noticed two men stand-mg inside the building, and testified that one of the men had money in his hand. When this man saw the officers, he shouted “police,” and turned and fled. Officer Scholl testified that the other man, later identified as Hawkins, threw a plastic baggie to the ground and also fled. Hawkins was apprehended immediately, and Officer Scholl retrieved the baggie, which contained twenty-five tablets of Talwin, containing Pentazocine, and twenty-five tablets of PBZ Tripelennamine.

The officers further testified that the tablets are known as “T’s and blues”; that they are taken together as a set; and that a heavy user could use four sets in a day. Officer Scholl testified that the house at 1716 Nomas Street where Hawkins was arrested was “very active” in bootlegging and drug trafficking; that he had observed drug sales taking place there; and that one of the windows in the house was specially constructed to facilitate drug transactions while hiding the participants from view. Hawkins, testifying in his own behalf, denied possession of the tablets, and stated that he was on the premises on the day in question drinking a can of beer and looking for the owner of the house.

Evidence of Intent to Deliver

Hawkins does not challenge the sufficiency of the evidence of possession. Instead, he argues that the State failed to prove his intent to deliver the drug beyond a reasonable doubt. In reviewing this contention, we must look at all of the evidence in the light most favorable to the judgment, and will uphold a conviction if any rational trier-of-fact could have found the essential elements of the offense beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). After a careful review of the record, we conclude that there is sufficient evidence to support Hawkins’ conviction.

Hawkins contends that a rational trier-of-fact is precluded from finding all of the elements of intent to deliver beyond a reasonable doubt because two equally reasonable inferences can be drawn from the evidence. He asserts that the inference that he had just purchased the drug for personal use is as reasonable as the inference of intent to deliver. He concludes that the State, therefore, failed to meet its burden of proof of intent to deliver. We disagree with Hawkins’ argument.

The State’s evidence included: (1) the arresting officer’s testimony that Hawkins was holding the drug, facing a person holding money, inside a house that was a known location for drug trafficking, and that both men fled when they realized that the police had arrived; (2) expert testimony that a typical user would buy only a small quantity of the pills at a time and could not normally afford twenty-five sets at an approximate street value of $250.00 to $300.00; (3) expert testimony that the amount of the drug possessed here would take even a heavy user over six days to consume; (4) expert testimony that Hawkins did not bear the physical characteristics of a heavy user of “T’s and blues;” and (5) Hawkins’ own testimony that he had only “tried” the drug.

In addition to this evidence, Hawkins denied possession of the drug under oath. He now urges that he possessed the drug with intent to consume it himself. These assertions are inconsistent. While the mere denial of possession does not constitute a showing of intent to deliver, Hawkins’ denial of possession in this case is inconsistent with the inference that he possessed the drug for personal use.

This Court’s opinion in Turner v. State, 681 S.W.2d 849 (Tex.App. — Dallas, 1984, no writ), is distinguishable. In Turner, the facts were as consistent with the inference of purchase for personal use as they were with the inference of possession with intent to deliver. The State failed to meet its burden by producing any evidence to show that Turner was not a user. The court therefore held that the two hypotheses were equally reasonable, and that a trier-of-fact could not find the elements of intent to deliver beyond a reasonable doubt. Here, however, evidence was offered by the State that supported the inference of intent to deliver and refuted the hypothesis of possession for personal use, so that the trial judge could find the essential elements of the offense beyond a reasonable doubt.

The elements of possession with intent to deliver are, simply, knowing possession with intent to distribute. United States v. Gonzales, 700 F.2d 196, 204 (5th Cir.1983). Knowing possession was established when the trial judge stated that he had chosen to disbelieve Hawkins’ testimony that he was innocently drinking a can of beer when the police arrived, and to believe the officer’s eyewitness testimony that Hawkins possessed the drug. Intent to deliver can be inferred from the quantity of the drugs possessed and from other circumstances such as proximity to money. Branch v. State, 599 S.W.2d 324, 325 (Tex.Crim.App.1979) (original opinion) (rev’d on rehearing on other grounds). We hold that the evidence here is sufficient to support the trial court’s finding of intent to deliver; consequently, we affirm.


author: PAUL PRESSLER, Justice.

text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY, Appellant, v. Ruth PIXLEY, Appellee.
    No. B14-84-280CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.
    Steven J. Lownds, Dallas, for appellant.
    L.H. Stu Stewart, Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from an order granting a temporary injunction. We affirm.

Sentry Construction Company (Sentry) sued certain Subcontractors including Kenneth C. Pixley under a construction contract. A bond from the Subcontractor in Sentry’s favor was required under the contract. Appellant issued the bond at the Subcontractor’s request.

A General Agreement of Indemnity (GAI) was executed by all Subcontractors as a condition of Appellant’s issuing the bond. It provided that the Subcontractors, jointly and severally, would indemnify appellant for any liability it incurred under the bond, and appellant had the right to settle any claim.

During trial appellant paid Sentry $68,-000 in settlement. Appellant then filed its Cross-Action and Third-Party Action against the Subcontractors to recover under the GAL Appellee was served with citation on June 8, 1982 and filed her answer on July 12.

On January 25, 1983, appellant obtained an Interlocutory Default Judgment based on an affidavit by its attorney stating that appellee had not answered the citation. The judgment became final on July 7. Ap-pellee’s husband testified that there was no notice of the default judgment until five months later when appellant attempted to execute the judgment by placing a lien on her farm in Oklahoma. Appellee filed a petition for Bill of Review to set aside the Default Judgment and sought a Temporary Injunction to prevent execution on the judgment. The trial court granted the temporary injunction on March 19, 1984. Appellant appeals from that order.

Appellant asserts two points of error which together allege that the temporary injunction should not have been granted because appellee presented either no evidence or insufficient evidence of a probable right of recovery on the merits in her petition for Bill of Review.

Before the hearing, the trial judge told the attorneys that it would “address itself, primarily ... to ruling whether or not a Temporary Injunction should or should not be granted.” When appellee questioned her witness about his knowledge of the settlement in order to establish appellant’s bad faith and extrinsic fraud in making the settlement, appellant’s counsel made the following objection:

I object to this line of questioning, Your Honor, as in accordance with the instruction of this Court, we were confining this Court’s investigation of this matter to the issuing of a Temporary Injunction and, clearly these questions are going to the merits of the underlying cause.

The court sustained the objection. Appel-lee claims that because of this objection by appellant she was prohibited from developing evidence showing a probable right of recovery. Appellant should not now be allowed to complain that this evidence was excluded because it was appellant who made the objection which caused it to be excluded. Where both sides and the trial judge agree to the questions to be determined at the hearing and the judgment is well within the limits of their agreement, all issues resolved by the court are tried by consent. Jones v. Garcia, 538 S.W.2d 492, 495 (Tex.Civ.App. — San Antonio 1976, no writ).

The only question to be considered on appeal is whether the trial court abused its discretion in granting the injunction. Iranian Muslim Organization v. City of San Antonio, 615 S.W.2d 202, 208 (Tex.1981); Matuszak v. Houston Oilers, 515 S.W.2d 725, 728 (Tex.Civ.App. — Houston [14th Dist.] 1974, no writ). Here the obvious intent of the trial court was to carve out the issue of the merits of appellee’s petition for another hearing. The trial court did not abuse its discretion in granting the injunction.

The bond required by the trial court fully protects appellant if appellee loses on the Bill of Review. The grant of the injunction protects appellee’s property and prevents a possible injustice.

We affirm.


author: DRAUGHN, Justice.

text:
    Norma Mims WATSON, Appellant, v. STATE of Texas, Appellee.
    No. A14-84-351CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 10, 1985.
    Rehearing Denied Feb. 7, 1985.

      Craig A. Washington, Washington & Randle, Houston, for appellant.
    Steven D. Peterson, Asst. Atty. Gen., Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

Norma Mims Watson appeals her disbarment as an attorney at law, alleging three points of error: (1) insufficient evidence to prove that she failed to carry out a contract of employment under Disciplinary Rule 7-101(A)(2); (2) insufficient evidence that she charged an excessive fee under Disciplinary Rule 2-106; and (3) trial court error in issuing a judgment too indefinite to protect the rights of the litigants involved. We affirm the trial court’s judgment.

Before considering appellant’s first and second points of error challenging the sufficiency of the evidence, we note that appellant filed only a partial statement of facts with her appeal. The rule allowing a partial statement of facts is Tex.R.Civ.P. 377(d) (Vernon Supp.1984) which states the following:

(d) Partial Statement. If appellant requests or prepares a partial statement of facts, he shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points. If such statement is filed, there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal. Appellee may designate additional portions of the evidence to be included in the statement of facts. ,

We support the application of Rule 377(d) because of the need to reduce the volume of material necessary on appeal. However, in the instant case, appellant followed Rule 377(d) only partially: she filed a partial statement of facts but apparently did not file a statement of points to be relied on for appeal. The transcript before us includes no evidence that such a document was ever filed.

This court has previously indicated that an appellant who files a partial statement of facts must comply strictly with the requirements of Rule 377(d) to benefit from its strong presumption that nothing omitted from the record is relevant to the appellant’s points of error. Dresser Industries v. Forscan Corp., 641 S.W.2d 311, 315 (Tex.App. — Houston [14th Dist.] 1982, no writ). An appellant who fails to comply must suffer the consequences of the opposite presumption that the omitted portions of the record support the judgment. Accordingly, we overrule appellant’s first and second points of error challenging the sufficiency of the evidence, because we presume that the parts of the record not included on appeal contain adequate evidence to prove violations of Disciplinary Rules 7-101(A)(2) and 2-106.

Appellant’s third point of error is that the judgment in this case is too indefinite to protect the rights of the litigants involved. In composing the judgment, the trial judge listed comprehensive findings of facts in numbered paragraphs; he then stated in separate paragraphs entitled “Conclusions of Law” that various Disciplinary Rules had been violated. The judgment concludes with detailed instructions to appellant on the steps to be taken to divest herself of her law practice, and it cautions appellant against engaging in certain conduct in the future.

Appellant’s complaint seems to be that the judge’s conclusions of Disciplinary Rule violations should have been integrated with the findings of fact to show more definitely in what manner her conduct violated the rules. She alleges that this defect rendered the judgment ambiguous, indefinite, and therefore unenforceable. Roberts v. Brittain, 659 S.W.2d 750 (Tex.App. — Tyler 1983, no writ). We disagree. The judgment as a whole is quite specific and unambiguous. The detailed findings of fact make the violations of the Disciplinary Rules abundantly clear, and further integration is unnecessary. We overrule appellant’s third point of error.

We affirm the judgment of the trial court.

      . Although Tex.R.Civ.P. 377 was amended effective April, 1984, the wording of section (d) was not altered.


author: ALLEN, Justice.

text:
    Margaret BRADLEY, Troy Edward Bradley, Paula Mae McCullough, and Judy Evyonne Burnett, Appellants, v. John BURNETT, D.O., Arthur Cording, D.O., Charles Mitchell, M.D., East Town Osteopathic Hospital, Appellees.
    No. 05-84-00453-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 14, 1985.
    Rehearing Denied Feb. 21, 1985.

      Randall A. Blake, Dallas, Dennis R. Cro-man, Irving, for appellants.
    R. Michael McCauley, Cowles, Sorrells, Patterson & Thompson, Mark A. Stinnett, Cowles, Sorrells, Patterson & Thompson, Eugene W. Brees, II, Thompson & Knight, Dallas, Fred E. Davis, Davis & Davis, Austin, Thomas L. Kelly, Jr., Patterson, Lam-berty, Kelly & Stanford, Dallas, for appel-lees.
    Before STEPHENS, ALLEN and GUIL-LOT, JJ.
   ALLEN, Justice.

Margaret Bradley, Troy Edward Bradley, Paula Mae McCullough and Judy Evyonne Burnett, appellants, appeal from a partial summary judgment which dismissed their wrongful death suit against John Burnett, D.O., Arthur Cording, D.O., Charles Mitchell, M.D., and East Town Osteopathic Hospital, appellees, on the ground that the claim was barred by the two-year statute of limitations provision provided in the Medical Liability and Insurance Improvement Act. TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1984). Appellants present five points of error on appeal. We agree with appellant’s first point, that the trial court erred in granting summary judgment because the claim was not barred by the statute of limitations in article 4590i, and therefore, it is unnecessary for us to consider the other points of error. We reverse the partial summary judgment.

On April 12, 1982, Margaret Bradley as Independent Executrix of the Estate of Troy Bradley, deceased, initiated a surviv- or’s suit against three doctors and an osteopathic hospital as a result of the medical treatment received by Troy Bradley. Bradley filed her first and second amended petitions on June 15, 1982 and July 1, 1983 respectively, asserting the same cause of action, but including the children of Troy Bradley as party plaintiffs. A third amended petition was filed on October 14, 1983 including the initial cause of action and in addition seeking damages for the wrongful death of Troy Bradley pursuant to TEX.REV.CIV.STAT.ANN. art. 4671, et seq (Vernon 1940), all claims being based on the same transactions and occurrences that formed the basis of the claim alleged in the original petition filed April 12, 1982.

Troy Bradley had his last treatment with at least one of the appellees in July, 1980 and he died in February of 1982. Thus, the third amended petition, alleging wrongful death, was filed over two years after Bradley was last medically treated by the appel-lees.

Appellees filed a motion for partial summary judgment as to the wrongful death claim maintaining that the statute of limitations for wrongful death actions, arising from medical health care treatment, must be filed within two years from the last date of treatment and not from the date of the decedent’s death. To support their contention, appellants argue that the wrongful death statute of limitations was superseded by the following Medical Liability and Insurance Improvement Act:

Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical health care treatment that is the subject of the claim is completed.

TEX.REV.CIV.STAT.ANN. art. 4590i, § 10.01 (Vernon Supp.1984).

The trial court granted the motion for partial summary judgment ruling that as a matter of law the third amended petition was filed more than two years after appel-lees last treated Troy Bradley, and therefore, the wrongful death claim was barred by the 4590i statute of limitations. Thereafter, the trial court granted the appellees motion to dismiss the survivor’s suit for want of jurisdiction. The survivor’s suit was then refiled in the probate court.

The appellants contend that April 12, 1982, the date appellant’s original petition was filed in this cause, is the controlling date for determining any statute of limitations claim. Further, appellants contend that any amendment of pleadings in the cause alleging a new cause of action, which arose out of the same transaction or occurrence as that alleged in the original petition, including an action for wrongful death, should relate back to the date of the original filing in determining any statute of limitations claim. In support of their position, appellants rely on TEX.REV.CIV. STAT.ANN. art. 5539b (Vernon 1958) which states:

Whenever any pleading is filed by any party to a suit embracing any cause of action ... and at the time of filing such pleading such cause of action ... is not subject to a plea of limitation, no subsequent amendment or supplement changing any of the facts or grounds of liability or of defense shall be subject to a plea of limitation, provided such amendment or supplement is not wholly based upon and grows out of a new, distinct or different transaction or occurrence.

We agree that article 5539b governs limitations in the instant case. A new suit will not be barred by limitations merely because it is different from the cause of action originally and timely pled, unless the new cause of action is wholly based upon and grows out of a new, distinct or different transaction and occurrence than that relied on in the original cause of action. Leonard v. Texaco, Inc., 422 S.W.2d 160 (Tex.1967); Providence Hospital v. Truly, 611 S.W.2d 127 (Tex.Civ.App.-Waco 1980, writ dism’d). We hold that the wrongful death action alleged in this cause allegedly arose out of the same transaction or occurrence as the survivors’ suit. Thus, by virtue of article 5539b, the wrongful death action relates back to on the date the survivors’ suit was filed, April 12, 1982, for purposes of computing any statute of limitations. We hold that appellant’s cause of action for wrongful death was not barred by any statute of limitations.

Further, we have reconsidered our ruling denying appellant’s motion to file a supplemental brief, and accordingly, grant leave to consider appellant’s additional point of error which urges that the trial court erred in dismissing the survivors’ suit for want of jurisdiction. Based on the recent holding of the Texas Supreme Court in Seay v. Hall, 677 S.W.2d 19 (1984), we conclude that the trial court erred in dismissing appellants’ survival action as being outside the jurisdiction of the district court. We, therefore, reverse the order of the trial court dismissing appellants’ survival action for want of jurisdiction. We hold that jurisdiction of appellants’ survival action properly lies in the District Court. Reversed and

Remanded.


author: JAMES, Justice.

text:
    Randolph Eugene ARLEDGE, Appellant, v. The STATE of Texas, Appellee.
    No. 10-84-079-CR.
    Court of Appeals of Texas, Waco.
    Jan. 17, 1985.

      ■ William L. Smith, Stewart & Smith, Cor-sicana, for appellant.
    Patrick C. Batchelor, Criminal Dist. Atty., Jennifer Judin, Asst. Criminal Dist. Atty., Corsicana, for appellee.
   OPINION

JAMES, Justice.

In this case the Appellant after pleading not guilty was convicted by a jury of murder, and his punishment, was assessed by the jury at confinement in the Texas Department of Corrections for 99 years.

The indictment alleges that Appellant on or about the 29th day of August, 1981, did in Navarro County, Texas, intentionally and knowingly cause the death of Carol Armstrong by stabbing her with a knife.

Appellant asserts three grounds of error as follows:

(1) No instruction was given in the charge as to the law of circumstantial evidence;
(2) Appellant challenges the sufficiency of the evidence to support the conviction; and
(3) The trial court erred in admitting into evidence certain testimony of witness Jimmy Johnson (hereinafter more particularly set out) over Appellant’s objections.

We overrule all of Appellant’s grounds of error and affirm.

By Appellant’s first ground of error, Appellant argues that since the case presented against Appellant was one of circumstantial evidence, that the trial court should have charged the jury on the law of circumstantial evidence. Appellant made no objections to the charge concerning the court’s failure to charge on the law of circumstantial evidence, nor did Appellant request an instruction on the law of circumstantial evidence. Therefore, Appellant has not preserved this ground of error for review. Articles 36.14 and 36.15, Code of Criminal Procedure; Martin v. State, (Tex.Cr.App.1982) 630 S.W.2d 952.

Moreover, where (as here) the jury has been properly charged on the State’s burden of proof, the presumption of innocence, and the requirement that an acquittal be entered if there exists a reasonable doubt as to Appellant’s guilt, a charge on the law of circumstantial evidence has been held to be unnecessary. Hankins v. State, (Tex.Cr.App.1981) 646 S.W.2d 191.

By his second ground of error Appellant challenges the sufficiency of the evidence to support the conviction. We overrule this point.

State’s witnesses Vickie Jernigan and James Buchanan testified that on the evening of August 29, 1981, Appellant was at a party at the Jernigan residence until after dark, around nine or ten o’clock at night. State’s witness James Gunter testified that he saw Appellant later that same evening at about eleven o’clock, driving one William Sadler’s car, by himself, in the Gibson’s parking lot in Corsicana, Texas. The Sadler car was a white Plymouth, an ex-sheriff’s car, with a spotlight on the left side.

The deceased Carol Armstrong was last seen alive by Nelda Lanier, a clerk at a Seven-Eleven Store located on Second Avenue in Corsicana, Texas, about 10:30 P.M. on August 29, 1981. Carol Armstrong’s body was found the next morning on a county road about 2.1 miles from the City of Corsicana. Her partially clothed body had forty-eight cuts and stab wounds in the areas of her neck, chest, hands and upper back. According to the autopsy, the manner of death was determined to be homicide.

James Buchanan testified that in the early morning hours of August 30, 1981, at about 2:30 A.M. to 3:00 A.M., Appellant returned to the Jernigan residence with blood on his shirt, a bite over an eye, and an open, bloody knife in his back pocket. Buchanan testified that Appellant “looked like he had been in a fight.” Buchanan asked Appellant what was wrong, to which Appellant replied, “I don’t know, man. I can’t remember.”

Shortly thereafter Appellant left for Houston where he met with Bennie Lomas on September 8, 1981. Appellant, Lomas, and a woman named Paula Lucas left Houston for Tennessee where they were subsequently arrested. On their way to Tennessee, Appellant told Lomas that he had stabbed a girl in Corsicana right before he came to Houston on September 8, 1981. Appellant showed Lomas a knife, and told him it was the one he used to stab the girl. When Appellant, Lomas, and Paula Lucas were arrested in Tennessee, this same knife was confiscated by Detective Cooper of the Cleveland, Tennessee, Police Department, and was kept by him, Cooper, until it was turned over to the Navarro County Sheriff’s Department.

Dr. Nina Hollander, the pathologist who conducted the autopsy on the deceased, testified that the knife in question was consistent with being able to inflict the wounds that the deceased Carol Armstrong received.

The Appellant offered the defense of alibi. Appellant’s two sisters and brother-in-law testified that he was at the Jernigan residence throughout the night of August 29 and into the morning hours of August 30, 1981. The jury was charged on the defense of alibi. By their verdict of guilty, the jury disregarded Appellant’s defense of alibi.

We are of the opinion and hold that the evidence is sufficient to support the conviction. Appellant’s second ground of error is overruled.

Appellant’s third ground asserts the trial court erred by admitting into evidence the following testimony by Jimmy Johnson:

Q. Mr. Johnson, after August 1981, did you have a conversation with a sister of the defendant in this case?
A. Yes, I did.
Q. And what was the basis of that conversation?
A. Pat McKee came to work one morning very upset and crying and made a statement to me that her sister was high and was babysitting her children, and she would like to leave work and go be with her, and she also said in the process of conversation, mentioned her sister has said that Randy raped a dead girl and ....

To which Appellant’s counsel objected on the ground there was no direct evidence on this and it was not in rebuttal, and moved for a mistrial. The State contended that this was to impeach the sister’s testimony. The trial court overruled the objection.

The testimony in question is hearsay and was improperly admitted. In Wilder v. State, (Tex.Cr.App.1979) 583 S.W.2d 349, it was held that the duty of the appellate court is to determine whether there is a reasonable possibility that improperly admitted evidence contributed to the conviction based upon the court’s own reading of the record and the probable impact on the minds of an average jury. It was further held in Wilder that improper admission of evidence does not constitute reversible error if the same facts are proven by other proper evidence. Id. at 363. Based upon the test laid down in Wilder, we are of the opinion and hold that the admission into evidence of the testimony in question did not contribute to the conviction, and therefore did not constitute reversible error.

Judgment of the trial court is affirmed.

AFFIRMED.


author: CANNON, Justice.

text:
    Lois HUDDLE, Appellant, v. Jack A. HUDDLE, Successor Administrator of the Estate of Jack Nelson Huddle, Appellee.
    No. A14-84-423CV
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 24, 1985.
    Rehearing Denied Feb. 21, 1985.

      H.J. Bernard, Houston, for appellant.
    Jay Floyd, Llano, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is an appeal from an order of the Probate Court determining what constituted the community property of Jack Nelson Huddle, deceased, and Appellant Lois Huddle, Jack Nelson Huddle’s wife at the time of his death. Appellee Jack A. Huddle, Jackie Huddle Clogston, and Marla Huddle were the children of the deceased by previous marriages. Appellant raises four points of error arguing that: the trial court erred in denying Appellant’s request for a jury trial and the court erred in classification and division of the estate of Jack Nelson Huddle, deceased. The trial court erred in denying the request for a jury trial. We, therefore, reverse and remand.

Appellant and the deceased were married on April 26, 1962, and lived together as man and wife until the death of the deceased on January 3, 1973. Jack Nelson Huddle died intestate. The three children of the deceased by previous marriages were declared by the Probate Court to be his legal heirs.

Appellant applied for and was appointed Administratrix of the estate. As Adminis-tratrix, Appellant filed an original inventory and appraisal of the estate. On April 14,1978, Appellant was removed as Admin-istratrix of the estate. Appellee was appointed to serve as Successor Administrator on July 14, 1978. During the time she served as Administratrix and later, Appellant filed motions to have the estate closed. Appellee filed, as Administrator of the Estate, an Account for Final Settlement. In response, Appellant filed her Motion for Final Judgment. Prior to trial, Appellant requested a jury. The trial court denied the request and trial was to the court without a jury. On March 9, 1984, the Probate Court entered an order which provided in part that Appellee, on behalf of the estate, recover from Appellant certain sums which represented Jack Nelson Huddle’s interest in community property.

The first point of error is that the “trial court erred in denying to the Appellant her timely request and demand for trial by jury.” This action was set for trial on the trial court’s nonjury docket on July 12, 1983. On June 30th, counsel for the Appellant paid a jury fee. However, no separate demand or request for a jury was made on Appellant’s behalf until July 12, 1983. The trial judge denied that request, partially because Appellant had not earlier informed the court that a jury trial was desired.

There is no doubt that parties to a contested probate proceeding are entitled to trial by jury as in other civil actions. TEX.PROB.CODE ANN. § 21 (Vernon 1980). The Texas Constitution contains two separate provisions concerning the right of trial by jury. The Bill of Rights of the Texas Constitution provides in part that “[t]he right of trial by jury shall remain inviolate.” TEX. CONST. Art. I, § 15. The Judiciary Article of the Constitution states:

In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; but no jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature.

TEX. CONST. Art. V, § 10. However, the right to trial by jury in civil cases is not absolute. Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d 344 (Tex.Civ.App. — Dallas 1968, no writ). A party requesting a jury trial in a civil case must take affirmative action to avoid a waiver of that right. Walker v. Walker, 619 S.W.2d 196 (Tex.Civ.App. — Tyler 1981, writ ref’d n.r.e.).

Rule 216 of the Texas Rules of Civil Procedure provides in part that:

No jury trial shall be had in any civil suit, unless application be made therefor and unless a fee of five dollars if in the district court, and three dollars if in the county court, be deposited by the applicant with the clerk to the use of the county on or before appearance day or, if thereafter, a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than ten days in advance.

TEX.R.CIV.P. 216. There are two basic requirements for entitlement to a jury trial in a civil case: 1) there must be an application, request, or demand for a jury trial; and 2) the correct fee must be deposited within the time set out in Rule 216. Dawson v. Jarvis, 627 S.W.2d 444, 446 (Tex.App. — Houston [1st Dist.] 1981, writ ref'd n.r.e.).

The parties in this case do not dispute that on June 30, 1983, counsel for Appellant paid the correct jury fee. The fee was deposited not less than ten days in advance of the date for trial of the cause on the non-jury docket. If both the demand and jury fee are late (less than ten days before a jury trial), the trial judge’s decision to allow or deny a jury trial is to be reviewed by an abuse of discretion standard. Lenamond v. North Shore Supply Co., 667 S.W.2d 283, 285 (Tex.App. — Houston [14th Dist.] 1984, no writ). Payment of the fee more than ten days before the date set for trial does not make the payment timely as a matter of law. Texas Oil & Gas Corp. v. Vela, 429 S.W.2d 866 (Tex.1968). If, however, the jury fee is paid more than ten days before the trial date, there is a presumption that it has been made within a reasonable time. Lenamond, 667 S.W.2d at 284-285. We, therefore, presume that the requirements of Rule 216 have been complied with.

Appellee responds that both the demand for jury trial and payment of the jury fee must be made within a reasonable time under Rule 216. See Steenland v. Texas Commerce Bank National Association, 648 S.W.2d 387, 391 (Tex.App. — Tyler 1983, no writ); Jerrell v. Jerrell, 409 S.W.2d 885 (Tex.Civ.App. — San Antonio 1966, no writ). We believe that the time limitations contained in Rule 216 apply only to the time that the jury fee must be deposited with the clerk. Appellant also argues that the mere deposit of the jury fee with the clerk does not constitute a demand for a jury. See Walker v. Walker, 619 S.W.2d at 198. Assuming a formal jury demand, separate from the payment of the jury fee, is required, Appellant has met that requirement by filing a written request for jury trial on July 12, 1983.

We hold that because the requirements of Rule 216 had been complied with, the trial court erred in denying Appellant’s request for trial by jury. Point of error one is sustained. Due to our disposition of the first point of error, we do not consider the remaining points of error.

The judgment is reversed and the cause remanded.


author: VANCE, Justice. GUILLOT, Justice,

text:
    Kenneth Edmond SAUNDERS, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00816-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 1, 1985.
    Dissenting Opinion Feb. 4, 1985.
    Rehearing Denied March 19, 1985.

      Kerry P. Fitzgerald, Dallas, for appellant.
    Dennis E. Guffey, Asst. Dist. Atty., Dallas, for appellee.
    Before STEPHENS, VANCE and GUIL-LOT, JJ.
   VANCE, Justice.

Appeal is from a conviction for murder. The jury assessed punishment at thirty years confinement in the Texas Department of Corrections. Appellant presents fifteen grounds of error. The sufficiency of the evidence is not challenged. We will address only ground of error one, in which appellant contends that the trial court erred in excluding mitigatory evidence offered during the punishment phase of the trial, which is dispositive of the appeal. Accordingly, we reverse and remand.

During the guilt-innocence phase, the State’s evidence reflected that appellant and a companion, Shoemaker, gained illegal entry into the deceased’s house. The deceased’s brother subsequently heard a voice from the deceased’s bedroom ask, “Where is the money?” The deceased answered that he did not have it. The brother then heard the deceased shout, “No, man,” and a gunshot. Appellant offered no evidence during the guilt-innocence phase; however, after the jury found him guilty of murder, appellant took the stand and attempted to recite his version of the shooting. Appellant testified that he and Shoemaker went to the deceased’s home to recover their money from an unsuccessful drug deal. Appellant stated that they gained entry through a side door of the house, and walked into the deceased’s bedroom, where they awoke him. Appellant then testified:

[Defense Counsel] Q. Did you have the gun?
A. Yes, sir, I did.
Q. Where was John Shoemaker?
A. He was to my right.
Q. Tell us what you said to him [the deceased], Kenny.
A. I asked him where my money was and then that we wanted it back.
Q. Were you trying to scare him?
A. Yes, I was.
Q. What did he say?
A. He said he didn’t know where my money was and that if I had a gun, I might better use it, and from there he stood up and grabbed my arm.
[Prosecutor]: We will object to him going into defensive matters now.
The Court: I didn’t hear the last thing he said. Read the response back.
(Whereupon, the requested testimony was read back by the Court Reporter.) The Court: I am going to carry your objection. I am going to let him finish what he was saying and then I will rule on it.
[Defense Counsel] Q. Kenny, what did you do when he did that?
A. I pulled back, and as I pulled back the gun discharged.
The Court: I am going to sustain the objection.
[Prosecutor]: And I would ask that the jury be instructed to disregard all of that last question.
The Court: I am going to sustain the objection. The jury is instructed to disregard the Defendant’s last answer. [Emphasis added].

TEX.CODE CRIM.PROC. art. 37.07(3)(a) (Vernon 1981) addresses the character of evidence heard in the punishment phase of the trial:

[E]vidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character.

In Allaben v. State, 418 S.W.2d 517, 519 (Tex.Crim.App.1967), the Court of Criminal Appeals explained article 37.07(3)(a) as follows:

Evidence to be offered at the hearing on punishment ... is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible. [Emphasis added].

TEX.PENAL CODE ANN. § 19.06 (Vernon 1974) specifically addresses the type of evidence admissible in all prosecutions for murder or voluntary manslaughter:

[T]he state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. [Emphasis added].

Appellant, relying predominently on Brazile v. State, 497 S.W.2d 302, 304 (Tex.Crim.App.1973), asserts that the testimony was admissible in mitigation of punishment as it contained “facts and circumstances surrounding the killing,” and that it's exclusion constitutes reversible error. The defendant in Brazile appealed his murder conviction, similarly arguing that notwithstanding his failure to present evidence at the guilt-innocence phase, he was entitled at the punishment phase to recite his version of the facts and circumstances surrounding the homicide. Brazile’s bill of exception reflected he would have testified that:

[H]e and the deceased got into an altercation outside a cafe, that the deceased started to pull a gun on him, and appellant grabbed it and took it away from him. Appellant went inside the cafe and sat down. The deceased entered the cafe, and appellant got up and started out. Appellant then shot him_

497 S.W.2d at 302. Relying on former TEX. PENAL CODE ANN. art. 1257a (repealed 1973) and article 37.07 § 3(a), the court in Brazile held that the evidence would have served to mitigate punishment, and that its exclusion constituted reversible error.

The State, relying on the rule that evidence of affirmative defenses which would exonerate the defendant may not be admitted at the punishment stage of the trial, endeavors to distinguish Brazile on that basis. See Nixon v. State, 572 S.W.2d 699, 701 (Tex.Crim.App.1978). The State points out that in Brazile there was no testimony at all allowed at the punishment stage from the defendant as to the circumstances surrounding the shooting, and that the excluded testimony contained no defensive matters. In contrast, the State argues that here appellant was allowed to testify to other facts and circumstances surrounding the incident, and was only restricted from asserting defensive matters, which were not admissible. The State also maintains that any potential error was rendered harmless when appellant subsequently testified to “the necessary essentials of the situation — that unprovoked, [a]ppellant shot the decedent.” The State points to the following testimony:

[Defense Counsel] Q: Mr. Saunders ... [d]id you pull that trigger?
[Appellant] A: Yes, sir, I did.
Q: Okay. Did the gun go off?
A: Yes, sir, it did.
* * * * * ajs
Q: That is not what happened. It wasn’t an accident, was it?
A: I know, but it was freak on my part, being involved in anything like that, and the fact of what happened....

The State contends that if the excluded testimony was not defensive in nature, then it said nothing not said in later testimony, and thus no error is shown.

We are not persuaded by the State’s attempts to distinguish Brazile. Both Brazile and its progeny, Marrero v. State, 500 S.W.2d 818, 820 (Tex.Crim.App.1973), were reversed for the exclusion of mitigatory evidence concerning lack of malice at the punishment stage, the rationale being that malice was relevant only with respect to punishment, and thus that was the “proper stage” to introduce such testimony. In the instant case, appellant was charged with murder under TEX. PENAL CODE § 19.02(a)(1) (Vernon 1974). As in Brazile, malice is not an element of that offense, and the presence or absence of malice related only to punishment. Contrary to the State’s argument, the excluded testimony was not an attempt to raise a defensive theory that the shooting was an accident or was in self-defense. Appellant later testified that he pulled the trigger, and that it was no accident.

Rather, we conclude that the excluded testimony was meant to show that the killing was not done with malice, but accomplished during an assault and after the deceased grabbed at appellant. The proffered testimony constituted part of the “circumstances surrounding the killing” under section 19.06, and was proper evidence in mitigation of appellant’s punishment. Furthermore, apart from the express rule of section 19.06, the general rule is that an offense does not occur in a vacuum, and all of the evidence of the surrounding facts may be properly admitted. Nixon v. State, 587 S.W.2d 709, 711 (Tex.Crim.App.1979). Additionally, although appellant was permitted to testify to other facts and circumstances surrounding the shooting, section 19.06 provides that “all relevant facts and circumstances surrounding the killing” shall be permitted. (Emphasis added). We therefore hold that the trial court erred by excluding the offered testimony, and that the error was not rendered harmless by the subsequent testimony of appellant to various other facts and circumstances surrounding the shooting.

The State further maintains that even if the excluded testimony concerned mitigating circumstances, it was inadmissible hearsay. Although no hearsay objection was made by the State, the State relies on the rule that when a trial court’s ruling on the admission of evidence is correct, although given for a wrong or insufficient reason, it will not result in reversal. See Miles v. State, 488 S.W.2d 790, 792 (Tex. Crim.App.1972).

It is well established that section 19.06 does not change the general rules of evidence regarding hearsay. Nixon, 587 S.W.2d at 711. It is also well established, however, that statements offered for the purpose of showing what was said, and not for the truth of the matter stated, do not constitute hearsay. Nixon, 587 S.W.2d at 711 — (reversed for exclusion of appellant’s testimony concerning the conversation he had with his wife at the time she was shot). We conclude that evidence of the words spoken during the events surrounding the killing was not offered to prove the matters asserted, but rather as proof that the statement was made. The statement was explanatory of the circumstances surrounding the shooting, and enabled the jury to realistically evaluate the evidence. See also Rojas v. State, 622 S.W.2d 466, 468-469 (Tex.App. — Corpus Christi 1983, pet. ref’d) and Calamaco v. State, 650 S.W.2d 913, 916-917 (Tex.App. — San Antonio 1983, pet. ref’d).

Finally, the State argues that appellant failed to show that the “rejected evidence was of a character calculated materially to change the state of the case favorably to the accused,” one standard to be followed in reviewing the exclusion of evidence. Ewalt v. State, 363 S.W.2d 279, 283-284 (Tex.Crim.App.1963). In light of the fact that appellant, who was eligible for probation, received a 30 year sentence out of a possible 99 years or life, we decline to hold that the error was harmless. Brazile, 497 S.W.2d at 304. Appellant’s first ground of error is sustained.

The judgment is reversed and remanded.

GUILLOT, J., dissents.

GUILLOT, Justice,

dissenting.

I respectfully dissent and, while I find the law in the area of what is admissible in the punishment phase of the trial to be clouded at best, I would hold that there was no error in refusing the proffered testimony.

Admitting that his testimony raises no legal defense to the charge of murder, Davis v. State, 597 S.W.2d 358, 360 (Tex.Crim. App.) (en banc), cert. denied, 449 U.S. 976, 101 S.Ct. 388, 66 L.Ed.2d 238 (1980), appellant argues that, because the evidence is not admissible for defense of the charge, it was offered to mitigate punishment. Appellant characterizes his testimony as evidence that the homicide occurred during an assault. We are not bound, however, by appellant’s characterization of the testimony.

What appellant attempted to do at the punishment phase was to testify to his version of the facts. At that point, his version is irrelevant and inadmissible. White v. State, 444 S.W.2d 921 (Tex.Crim.App.1969). Viewed in context, there is no reasonable interpretation of appellant’s testimony other than that he accidentally pulled the trigger. But evidence of the affirmative defense of accident which would exonerate appellant is not admissible at the punishment phase of the trial. Nixon v. State, 572 S.W.2d 699 (Tex.Crim.App.1978).

Furthermore, pulling the trigger cannot be an accident legally sufficient to exonerate appellant. Sargent v. State, 518 S.W.2d 807 (Tex.Crim.App.1975). Moreover, because there is no evidence to show that appellant used force to protect himself against the deceased’s “use or attempted use of unlawful force,” TEX. PENAL CODE ANN. § 9.31 (Vernon 1974), it cannot be self-defense. Hence, his testimony is inadmissible. I would affirm.

      . Article 1257a was replaced by TEX. PENAL CODE ANN. § 19.06.


author: GUITTARD, Chief Justice.

text:
    Bruce Evan FOSTER, Appellant, v. The STATE of Texas, Appellee.
    No. 05-81-00994-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 5, 1985.

      Michael P. Gibson, Burleson, Pate & Gibson, Dallas, for appellant.
    Henry Wade, Dist. Atty., R.K. Weaver, Asst. Dist. Atty., Dallas County Courthouse, Dallas, Robert Huttash, State Prosecuting Atty., Austin, for appellee.
    Before GUITTARD, C.J., and SPAR-LING and ALLEN, JJ.
   GUITTARD, Chief Justice.

We reversed and remanded appellant’s conviction for theft in Foster v. State, 648 S.W.2d 31 (Tex.App. — Dallas 1983), remanded, 677 S.W.2d 507 (Tex.Crim.App.1984). On remand from the Court of Criminal Appeals, the sole issue for determination is whether the improper admission of two written confessions was harmless error. After review of the record, we cannot say beyond a reasonable doubt that the error was harmless. Accordingly, we reverse and remand for a new trial.

On original submission of this appeal, we held that the trial court’s admission of appellant’s written confessions, which were the fruits of an illegal arrest, was constitutional error. Foster, 648 S.W.2d at 34. This holding was expressly affirmed by the Court of Criminal Appeals. Foster, 677 S.W.2d at 510. We must now determine whether the State has met its heavy burden of demonstrating that this error was harmless. The admission of improper evidence puts the burden on the State, as the beneficiary of the constitutional error, to prove beyond a reasonable doubt that this error did not contribute to appellant’s conviction. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). “The test for harmless-constitutional error is not whether a conviction could have been had without the improperly admitted evidence, but ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” Jordan v. State, 576 S.W.2d 825, 829 (Tex.Crim.App.1978) (quoting Chapman, 386 U.S. at 24, 87 S.Ct. at 828).

Applying this test, we are unable to determine beyond a reasonable doubt that, this error was harmless. Appellant was formerly employed as an assistant district attorney by Dallas County. Shortly after appellant’s employment relationship with the county was terminated, he was charged with theft of a typewriter and other property from the district attorney’s office. Other than appellant’s two written confessions, which we have already held to be inadmissible, the only evidence admitted before the jury connecting appellant with the theft of the equipment from the district attorney’s office was the testimony of Judge John C. Vance (now a justice of this court) concerning appellant’s own voluntary, extrajudicial admission of guilt. According to Judge Vance, appellant called him on the telephone, explained that he was charged with taking a typewriter and other property from the district attorney’s office, and added, “I did it. It was a silly thing to do, but I need a bond set.”

On original submission, we held that because of this testimony, the evidence was sufficient to support a conviction without the illegal confessions. Foster, 648 S.W.2d at 34. That is not to say that there is no reasonable probability that the illegal confessions contributed to the conviction. However disposed we might be to accept Judge Vance’s testimony as true, that judgment would be based on our own evaluation of Judge Vance’s credibility. The credibility of a witness is a matter for a jury, rather than this court. It seems to us that two written confessions signed by the accused might be regarded by a jury as more convincing than the testimony of any witness, however eminent, concerning oral statements made to him on the telephone, which might be subject to misunderstanding or misinterpretation. We cannot say beyond a reasonable doubt that the jury would have been just as likely to convict appellant if the illegal confessions had not been introduced. Consequently, appellant is entitled to a new trial free from this constitutional error.

Reversed and remanded.