text:
    Daniel Gordon VANDERBURG, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-708CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 16, 1984.

      Henry Burkholder, III, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

JUNELL, Justice.

This is an appeal from a order revoking probation. Appellant was originally charged with two counts of burglary of a habitation; the state abandoned the second count of the indictment. The trial court granted the state’s motion to reduce the first count to burglary of a building, to which appellant pled guilty and received four years probation beginning August 20, 1979. We affirm the revocation of probation.

On January 3, 1980 the state filed a Motion to Revoke Probation for appellant’s failure to report, failure to pay supervisory fees, and failure to reimburse Harris County for his court-appointed attorney.

During the early part of 1980, appellant was convicted of two more felonies, one in Lubbock County and the other in Tarrant County. Subsequent to these convictions, appellant served approximately 16 months in the Texas Department of Corrections. Upon his release, appellant moved to Ohio and then to California where he was convicted for receiving stolen property and placed on probation. On March 18, 1983, the state filed an amended motion to revoke probation for the August 20, 1979 Harris ^county conviction. Appellant was extradited from California and made his first court appearance in the revocation proceeding on June 1,1983. On August 17, 1983, the state filed a Second Amended Motion to Revoke Probation, adding the Tarrant County and Lubbock County felony convictions as grounds for revocation. At the revocation hearing on October 6, 1983, the court found all of the state’s allegations of probation violations true. The court revoked appellant’s probation, sentenced him to four years confinement in the Texas Department of Corrections, and ordered him to pay restitution for extradition fees from California in the amount of $1,180 as a condition of parole.

Appellant presents eight grounds of error. Five of those grounds challenge TEX.CODE CRIM.PROC. ANN. art. 1.15 (Vernon 1977). Grounds one, two, and four argue Article 1.15 is unconstitutional for the reasons listed:

(1) violation of due process by denying appellant's federal right to compulsory process,
(2) violation of equal protection, and
(3) denial of state right to compulsory process

Along the same lines, appellant also argues in grounds three and eight the court committed fundamental error (1) in failing to advise the appellant he could not introduce evidence on his behalf in an article 1.15 proceeding and (2) in not requiring that appellant give written waiver of his right to compulsory process under an article 1.15 proceeding. We find no merit to these grounds of error. Appellant’s first, second, third, fourth and eighth grounds of error are overruled.

TEX.CODE CRIM.PROC. ANN art. 1.15 (Vernon 1977) reads as follows:

No person can be convicted of a felony except upon the verdict of a jury duly rendered and recorded, unless in felony cases less than capital, the defendant, upon entering a plea, has in open court in person waived his right of trial by jury in writing in accordance with Articles 1.13 and 1.14; provided, however, that it shall be necessary for the state to introduce evidence into the record showing the guilt of the defendant and said evidence shall be accepted by the court as the basis for its judgment and in no event shall a person charged be convicted upon his plea without sufficient evidence to support the same. The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause, (emphasis supplied).

A defendant has certain enumerated rights under the United States and Texas constitutions. Nonetheless, he may elect to waive those rights, be they rights afforded under the federal constitution (See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)) or under our own state’s constitution (See Thornton v. State, 601 S.W.2d 340 (Tex.Crim.App.1980)).

In the instant case appellant specifically waived several of his constitutional rights. He stated that he waived his right to a jury trial in response to two separate sets of questions propounded by the trial court judge. Also, prior to pleading guilty appellant signed a Waiver of Trial by Jury and a Stipulation of Evidence. Then he orally waived the reading of the indictment, his constitutional rights to have the witnesses appear in person, to confront those witnesses, and to have his attorney cross-examine them. Finally, he waived his right against self-incrimination.

We find no case or statute requiring a judge to enumerate, laundry-list style, every constitutional right that a defendant possesses and demand that the defendant note for the record his separate waiver of each. The Fifth Circuit in United States v. Frontero, 452 F.2d 406, 415 (5th Cir.1971) held,

This court is ... aware of no precedent from the Supreme Court, or elsewhere, for the proposition that due process requires that the defendant be informed of each and every right which is waived by a guilty plea ... before a guilty plea may be accepted.

There is no requirement under United States or Texas law that a defendant expressly waive his right to compulsory process. FED.RULES CRIM.PROC.RULE 11(c), 18 U.S.C. outlines a defendant’s right to a jury trial, right to counsel, right to confront and cross-examine witnesses, and the right against self-incrimination. State law requires an overt waiver of only three rights: (1) the right to a jury trial, (2) the right to confront one’s accusers, and (3) the right to refuse to testify at trial. TEX.CODE CRIM.PROC.ANN. art. 26.13 (Vernon Supp.1984); see generally Casares v. State, 478 S.W.2d 462 (Tex.Crim.App.1972).

Appellant raises the unique argument that a defendant must also expressly waive the right to compulsory process. We disagree. The right to compulsory process is not one of the fundamental rights mentioned in Boykin v. Alabama, supra. Although certain other jurisdictions include it among the constitutional rights a defendant must expressly waive, Texas does not. We refuse to extend this state’s policy to require such a waiver. Even assuming ar-guendo that the right to compulsory process should be included among those rights which must be expressly waived, our reading of the statement of facts compels us to find that appellant waived that right. When queried by the court whether he understood that he had the constitutional right to have the witnesses appear in person and that he was giving up that right, appellant twice answered, “Yes, sir.” We construe this dialogue as a waiver by appellant of his right to compulsory process. However, we do not extend our ruling to hold that an express waiver of the right to compulsory process be mandated in future criminal trials in this state.

Appellant argues TEX.CODE CRIM. PROC. ANN. art. 1.15 is unconstitutional because it requires that the state produce sufficient evidence to support a conviction based on a plea of guilty but does not afford the defendant an opportunity to rebut the state’s evidence. Appellant’s argument lacks merit.

The United States Supreme Court stated in Boykin v. Alabama, supra, that a guilty plea is more far-reaching than a confession admitting that a defendant performed certain deeds. It is a conviction with nothing remaining but for a court to render judgment and determine punishment. Article 1.15 is an additional procedural safeguard required by the State of Texas. Under this provision evidence is received to support the judgment, not to accept a plea. Thornton v. State, supra at 347.

After a defendant has entered a plea of guilty and after he has waived his right to a jury trial, the state is required to produce sufficient evidence before a judgment of guilty can be entered. Even though federal common law allows a conviction upon a guilty plea alone, Texas does not. Texas requires the judgment be supported by sufficient evidence from the state. Thornton held that Article 1.15, which forbids conviction without sufficient evidence supporting the judgment, “not only passes constitutional muster but also has little to do with admonishing an accused before accepting a guilty plea.” Id. at p. 348.

Appellant alleges the trial court is barred from considering testimony elicited on cross-examination. However he cites no cases for this contention nor can we find any. Nothing in Article 1.15 prohibits the court from considering testimony produced through cross-examination of the state’s witnesses or by the defense putting on its own evidence through rebuttal witnesses. It would, however, be illogical to allow a defendant to plead guilty and then to conduct a “mini-trial” on guilt-innocence. Any trial allowed would be on the punishment phase only, i.e., the introduction of mitigating evidence. The second sentence of Article 1.15 allows the evidence to be stipulated if the defendant consents in writing to waive the appearance, confrontation, and cross-examination of witnesses. This waiver may be done at the option of the defendant and is not required.

Section 1.15 does not bar the court from considering rebuttal evidence by the defendant, but even if it did, this would entail no violation of the appellant’s constitutional rights. The fact that Texas requires an additional procedural safeguard after the defendant has waived his right to compulsory process by pleading guilty does not mean compliance with Article 1.15 revives constitutional rights already waived by the defendant. And appellant does not suggest on appeal that his guilty plea was not voluntary.

Appellant also argues under his second ground of error that Article 1.15 is unconstitutional as a violation of equal protection. We fail to follow the logic in this argument. The article applies equally to all who, as did appellant, choose to plead guilty. Enforcement is not arbitrary, and the article is not a violation of the equal protection clause.

In his fifth ground of error appellant contends there was supposedly no evidence indicating the building he entered was "an enclosed structure.” Normally upon appealing a revocation of probation an appellant may not challenge the sufficiency of the evidence supporting the original conviction. Vaughn v. State, 608 S.W.2d 237 (Tex.Crim.App.1980). Appellant cites Dinnery v. State, 592 S.W.2d 343 (Tex.Crim.App.1980) for the proposition that a defendant may collaterally attack a conviction after a revocation if the evidence supporting the conviction was insufficient in the first place. While appellant has correctly stated a general principle of law, we do not find it applicable to his situation.

Appellant argues Jones v. State, 532 S.W.2d 596 (Tex.Crim.App.1976) holds burglary of a building is a lesser-included offense of burglary of a habitation only upon proof the building was an enclosed structure. However, in Jones the building in question was a newly constructed house not being used as a habitation. The holding in Jones is limited to its facts and does not add a new element to the statutory definition of burglary of a building.

Proof that the building entered be enclosed is not required for the offense of burglary of a building. The three elements of that offense pursuant to TEX.PENAL CODE ANN. § 30.02(a)(1) (Vernon 1974) are well established; they áre

1) a person,
2) without the effective consent of the owner,
3) enters a ... building, not then open to the public, with intent to commit a felony or theft.

Garcia v. State, 571 S.W.2d 896, 899 (Tex.Crim.App.1978). Proof the building was enclosed was not necessary in appellant’s case.

Appellant signed a Stipulation of Evidence. At trial he identified the signature on that stipulation as his and acknowledged (1) he had consulted with his attorney about it, (2) he had signed it freely and voluntarily, and (3) he understood his signing thereof meant relinquishing his right against self-incrimination.

This colloquy then ensued:

THE COURT: And, do you understand, also, that you’re ... making a judicial confession of your guilt?
THE DEFENDANT: Yes, sir.
THE COURT: And, is everything else true and correct that’s in this instrument [the stipulation]?
THE DEFENDANT: Yes, sir.
THE COURT: Very well. The Court will accept the Stipulation of Evidence as presented.

A judicial confession, such as the oral one appellant undisputedly made on August 20, 1979 as a part of his plea bargain, standing alone will sustain a conviction subsequent to a guilty plea and satisfy the prerequisites of TEX.CODE CRIM.PROC.ANN. art. 1.15 (Vernon 1977). See Dinnery, supra, at 353, and the cases cited therein. Appellant’s fifth ground of error is without merit and is therefore overruled.

Appellant’s sixth ground contends the trial court erred in overruling his motion to dismiss the revocation proceeding because Texas parole agents were not empowered to release appellant from prison, grant him permission to leave the state, and then move to revoke his probation. However, as the Second Amended Motion to Revoke Probation states, appellant’s probation was revoked for violations of four conditions of probation: (1) committing an offense against the laws of this or another state or of the United States, (2) failing to report as directed, (3) neglecting to pay his supervision fee, and (4) failing to reimburse Harris County for the compensation it had expended on his court-appointed attorney. A violation of one condition of probation provides sufficient cause for a trial court’s revocation of a defendant’s probation. Moore v. State, 605 S.W.2d 924 (Tex.Crim.App.1980).

Appellant argues that because the relationship between a trial court and a probationer is contractual in nature, the doctrine of equitable estoppel barred the state from proceeding with the revocation hearing. We agree that the relationship is contractual in nature. See Bradley v. State, 564 S.W.2d 727 (Tex.Crim.App.1978). But the evidence is clear appellant breached several clauses of that contract and made no attempt to modify or alter it by seeking the court’s permission to report by mail. The court, not an individual probation officer, has the authority to change the conditions of probation. Appellant’s obligation is to the court as the contract is judicial in nature. See Johnson v. State, 638 S.W.2d 206 (Tex.App.-Fort Worth 1982). He may not now complain thereof. We overrule appellant’s sixth ground of error.

Appellant, in his seventh ground of error, alleges the trial court abused its discretion by ordering him to pay extradition costs as a condition of his parole. The order revoking appellant’s probation contained a provision requiring him “to pay restitution for extradition fees in the amount of $1,180.00 as a condition of parole.” TEX.CODE CRIM.PROC. ANN. art. 42.12, § 15(g) (Vernon 1984) provides:

Each person to be released on parole shall be furnished ... the conditions and rules of parole. The conditions shall include the making of restitution or reparation to the victim of the prisoner’s crime,

Appellant argues that the “victim” cannot be the state itself and asks on appeal for a reformation of that portion of the judgment or a reversal and remand thereof.

The statutory language cited above authorizes the trial court to set restitution as a condition of parole. We need not reach a decision on the state’s argument that the state itself can be a “victim” for purposes of such restitution; the record contains no evidence of the amount of extradition costs. The Order Revoking Probation and Sentence contains a recital of the amount, but no evidence supports it.

In Barker v. State, 662 S.W.2d 640, 642 (Tex.App.-Houston [14th Dist.] 1983), this court held, “Due process requires sufficient evidence in the record to show the amount ordered by the trial court has a factual basis.” Such evidence is not present in the record in appellant’s case. Therefore, the restitution condition is deleted from the sentence. With this reformation of the judgment, appellant’s seventh ground of error is overruled.

The judgment of the trial court is affirmed as reformed striking the restitution provision.


source: Caselaw Access Project

author: DOYLE, Justice.

license: Public Domain

text:
    LONE STAR FORD, INC., Appellant, v. John McGLASHAN & Teresa McGlashan, Appellees.
    No. 01-84-0026-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Sept. 13, 1984.
    Rehearing Denied Nov. 21, 1984.

      Mitchell J. Buchman, Eikenburg & Stiles, Elliott M. Cin, Eikenburg & Stiles, Houston, for appellant.
    Tom L. Pettiette, Houston, for appellees.
    Before DOYLE, DUGGAN and LEVY, JJ.
   OPINION

DOYLE, Justice.

This is an appeal from a judgment rendered in favor of appellees in their suit for damages based upon appellant’s alleged deceptive trade practices. The case was tried to the court without a jury. Findings of fact and conclusions of law were filed. The trial court awarded appellees $26,-452.04 for damages and $4,500 attorneys fees and court costs.

Appellees sued appellant for breach of contract and for violations of the Texas Deceptive Trade Practices Act (DTPA), Tex.Bus. & Com.Code Ann. sec. 17.41 et seq. (Vernon Supp.1980). The appellees purchased a 1979 Ford Thunderbird vehicle from appellant on December 13, 1979. The 1979 amendments to DTPA are therefore applicable. The appellees were unaware that the vehicle had a salvage title and that this title has never been transferred into their names. Appellees remained unaware of the status of the vehicle’s title until two years after the sale, when they applied for a license for the vehicle. At this time, the State informed appellees that no license for the vehicle could be issued because a certificate of title was not issued in their name. Appellees initiated a suit against appellant for damages under D.T.P.A. and for breach of contract. Appellant brought a third-party action against Auto Products Inc.

The court found that appellant had violated sec. 17.46(b) of the DTPA and awarded appellees actual damages which were trebled under sec. 17.50(b)(1). Appellant raises twelve points of error on appeal.

In the first five points of error appellant contends that the trial court erred in finding that the appellant represented to appel-lees that appellant had good, clear, and marketable title to the automobile, and that such title would be transferred to appellees upon payment of the purchase price. Appellant maintains that there is no evidence, or alternatively, insufficient evidence that such a representation was made or that appellant “knowingly” sold appellees a car with a “salvage” title. Therefore, appellant argues that the trial court erred in finding that appellant violated secs. 17.-46(a); and 17.46(b)(2)(5), (7), and (19) of the DTPA.

These sections provide in pertinent part: Sec. 17.46 Deceptive Trade Practices Unlawful
(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful and are subject to action by the consumer protection division under Sections 17.47,17.58,17.60, and 17.61 of this code.
(b) Except as provided in Subsection (d) of this section, the term “false, misleading, or deceptive acts or practices” includes, but is not limited to, the following acts:
(1) passing off goods or services as those of another;
(2) causing confusion or 'misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
# .⅛ * • # *
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
⅝ ⅜ sfe s¡c ⅝ ⅞:
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
* ⅜ * ⅜ * ⅜
(19) representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 of the Business & Commerce Code to involve obligations in excess of those which are appropriate to the goods;

Appellant contends that it could not have possibly violated sec. 17.46(a) and (b) of the DTPA because appellant did not make any representations regarding the clear and transferable title, and appellant was not under a duty to disclose the status of the vehicle’s title, since appellant was not aware of the defect.

As authority for this contention, appellant cites Robinson v. Preston, Chrysler-Plymouth, Inc., 633 S.W.2d 500 (Tex.1982). In Robinson, plaintiffs purchased an automobile from defendants unaware that it had been previously leased, wrecked and repaired. The defendant testified that although he was aware the car had been leased, he was unaware that the car had been wrecked prior to the sale. The court found that defendant’s failure to disclose that the car had been wrecked was not a deceptive trade practice if the speaker had no knowledge of those facts. Robinson, supra at 502.

However, the court recognized a distinction between a “misrepresentation” and a “failure to disclose.” When a seller represents facts to a buyer, he is under a duty to know if his statements are true. Id. No such duty arises if the seller does not make a representation, but merely fails to disclose information which he does not know. Id. Section 17.46(b)(23) incorporates an element of intent or knowledge which most of the other subdivisions do not contain:

(23) the failure to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed. Tex.Bus. & Com. Code Ann. sec. 17.46(b)(23).

“Knowledge” of the act is only required under sec. 17.46(b) if the act falls within one of the Act’s subdivisions which require express intent or knowledge: subdivisions (9), (10), (13), (17), (22), and (23). Pennington v. Singleton, 606 S.W.2d 682 (Tex.1980). In Pennington, the Supreme Court explained that if the legislature had meant for “intent” or “knowledge” to be a requirement for all violations, the legislature would not have written it into specific items without requiring it under the other subdivision of sec. 17.46(b). Although the Pennington court mainly addressed the constitutionality of imposing treble damages and liability without a showing of intent, the court also recognized the general “strict liability” scheme of the rest of the statute. See also Curry, “The 1979 Amendments To The Deceptive Trade Practices-Consumer Protection Act,” 32 Baylor L.Rev. (1980).

A major distinction between the instant case and Robinson is that in Robinson, the jury decided only the “failure to disclose” issue. On the other hand, the instant case went to trial on the issue of whether a misrepresentation had been made, which caused appellees to suffer damages. Therefore, the Robinson case which holds that one cannot be-liable under DTPA for “failing to disclose facts” which he does not know, does not necessarily apply to a case where the seller misrepresents a fact. In a misrepresentation case, the seller is under a duty to know whether his statements are true. Robinson, supra at 502.

Once a representation is made, it becomes a “false, misleading, or deceptive” act or practice as a matter of law if it falls within the “laundry list” of acts enumerated in sec. 17.46(b) or if the trier of fact finds it to be a deceptive trade practice. Franklin v. State of Texas, 631 S.W.2d 519 (Tex.App.-El Paso 1982, no writ); Prairie Cattle Co. v. Fletcher, 610 S.W.2d 849 (Tex.Civ.App.-Amarillo 1980, no writ).

The dealer’s act of representing to used car buyers that he can provide them with a properly assigned certificate of title, and then failing to do so, has been held to be a violation of the DTPA. Franklin, supra. Furthermore, the trial judge in the instant case found that appellant’s representations amounted to four of the strict liability violations enumerated in sec. 17.46(b).

Thus, if there is sufficient evidence to support the trial judge’s findings that appellant represented that he would transfer a clear title to appellees upon payment, this court must sustain the trial court’s findings that the representation violated the DTPA.

The evidence in the record supports the trial judge’s findings. In Texas, the Texas Certificate of Title Act requires dealers of used vehicles to provide a valid certificate of title, and to transfer such certificate of title into the new owner’s name, before the vehicle can be legally sold at a subsequent sale. Texas Revised Civil Statute, art. 6687-1, sec. 33 (Vernon Supp.1980); Drake Insurance Co. v. King, 606 S.W.2d 812 (Tex.1980). Any sale made in violation of the Texas Certificate of Title Act is void; no title passes until all provisions of the Act have been complied with. Tex.Rev.Civ. StatAnn. art. 6687-1, sec. 53 (Vernon 1980).

The DTPA mandates that when a dealer represents that he can sell used cars, he necessarily represents that he can transfer a legal title to the new owner in order to consummate a valid sale. These two representations go hand in hand; otherwise, the dealer falsely represents that he can legally sell the car to consumers.

The record in the instant case reflects that appellees never received a certificate of title upon their purchase of a used vehicle from appellant. In fact, appellant admits that it never transferred the certificate of title into appellee’s name, although all papers necessary to effect such transfer were executed by appellees at the time of sale. It is undisputed that the appellant represented by its sales contract and through its agent, Mr. Wright, that it could legally sell the vehicle to the appellees. There was sufficient evidence for the trial judge to find that appellant misrepresented that he had marketable title which would be transferred to appellees upon payment of the purchase price. Appellant’s first five grounds of error are overruled.

In points of error six through eleven, appellant challenges the court’s determination of damages. First, appellant contends that the trial court improperly rendered judgment rescinding the contract and restoring the consideration paid.

Appellant argues that rescission is not a proper remedy because the appellees failed to plead two things: (1) that appellant justifiably revoked acceptance, and (2) that the car did not conform to the contract. Alternatively, appellant contends that if the trial judge’s finding of damages were based on a restoration of the consideration paid, such remedy was improper because a plaintiff may not recover both restoration of the consideration paid pursuant to 17.50(b)(3) and treble damages under 17.50(b)(1). The appellant also contends that there is insufficient evidence to support the trial court’s finding of $9,150.66 actual damages.

Appellees alleged in their pleadings that they were adversely affected by a breach of contract and certain misleading representations by the appellant concerning the transfer of the vehicle’s title. Appellees also alleged that they suffered actual damages in the amount of $8,000.

Appellees prayed that they recover actual damages, that the actual damages be trebled, that punitive damages be awarded, and that they be awarded reasonable attorney fees plus court costs.

Under sec. 17.50 of the DTPA, a consumer who proves that a merchant has committed one of the specific enumerated acts or practices of sec. 17.46(b) may recover the amount of actual damages found by the trier of fact, plus two times that portion of actual damages that does not exceed $1,000.

If the trier of fact finds that the conduct was committed knowingly, the judge may award three times the amount of actual damages in excess of $1,000. Sec. 17.-50(b)(1). The section of the DTPA under which appellees pled provides for the recovery of actual damages as are recoverable at common law. Chrysler Corp. v. Schuenemann, 618 S.W.2d 799 (Tex.Civ.App.-Houston [1st Dist.] 1981). Thus, any damages awarded must fall under this section.

The trial judge found that the automobile purchased by appellees was entirely unfit and useless for the purpose for which it was purchased, and that there was no reasonable market value for the automobile as of the date of trial. Accordingly, the trial court awarded appellees actual damages in the amount of $9,150.66. Of that sum, $7,320.30 constituted the purchase price of the vehicle, and $1,830.38 constituted interest paid on a $6000 loan appellees made to pay off the automobile. In accordance with sec. 17.50(b)(1), the trial judge also awarded appellant two times the damages under $1,000 and three times damages over $1,000:

a. $9,150.66 actual damages
b. two times damages under
$1,000 $ 2,000.00
c. three times damages over
$1,000 $24,452.04
Total $26,452.04

Under the breach of warranty theory asserted by appellee, the measure of damages is the “difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted” at the time of sale. Chrysler Corp., supra at p. 805, citing Tex.Bus. & Com.Code Ann. Paragraph 2.714(b) (Vernon 1968).

Here, the trial judge relied on the purchase price as evidence of the market value of the vehicle, if it had been as represented. In absence of other proof of the market value as warranted, the actual sales price is sufficient evidence to support a finding on that issue. Chrysler Corp., supra at 805; Smith v. Kinslow, 598 S.W.2d 910 (Tex.Civ.App.-Dallas 1980, no writ).

As a part of actual damages, the court is justified in considering the interest and finance charges which a purchaser has become bound to pay in a purchase induced by a deceptive trade practice. Chrysler Corp., supra. Regardless of which of several methods available to the trial court was used in determining the actual damages incurred by the appellees, there was sufficient evidence of probative value to support the court’s findings of fact concerning these damages. Points of error six through eleven are overruled.

Appellant contends that the trial court erred in awarding appellees treble damages under sec. 17.50(b)(1) because that portion of the judgment does not conform to the trial judge’s finding in Finding of Fact VI, which provides:

The Defendant, LONE STAR FORD, INC., by and through Charles West in deposition testimony, testified that Defendant, LONE STAR FORD, INC., could have discovered the defect in title prior to the sale of said vehicle to Plaintiffs had they performed a diligent and prudent search.

The appellant argues that the trial court’s judgment does not conform to Finding of Fact VI, because the judgment recites that the violation of sec. 17.46(b) was committed “knowingly”.

Appellant contends that the “could have discovered” language of the finding of fact could not possibly mean “knowingly” as that term is defined under DTP A sec. 17.-45(9).

Section 17.45(9) provides in pertinent part:

(9) “Knowingly” means actual awareness of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim or, in an action brought under Subdivision (2) of Subsection (a) of Section 17.50, actual awareness of the act or practice constituting the breach of warranty, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.

Appellant contends that “could have discovered” at most establishes gross negligence and not the high level of actual awareness described in sec. 17.45(9).

That part of the judgment which recites that appellant “knowingly” committed a violation of sec. 17.46(b) does not conform to the trial court’s finding that appellant “could have discovered the defect in title prior to the sale of the vehicle.” Under rule 301 of the Texas Rules of Civil Procedure, the judgment of the court should conform to its findings of fact. Mercedes Dusting Service, Inc. v. Evans, 353 S.W.2d 894 (Tex.Civ.App.1962, no writ). Appellant’s point of error twelve is sustained.

That portion of the judgment which awards the appellees three times the amount of actual damages in excess of $1000 in accordance with sec. 17.50(b)(1) of the DTPA is reversed and such amount is excluded from the total damages.

As thus reformed, the judgment of the trial court is affirmed.


author: SEARS, Justice.

text:
    Ernest Lee HARRIS, Appellant, v. STATE of Texas, Appellee.
    No. C14-82-225CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 13, 1984.
    G. Michael Cooper, J. Ronald Vercher, Houston, for appellant.
    Calvin Hartmann, Karen Zellars, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

We withdraw our original opinion in this cause and substitute the following opinion.

Appellant, Ernest Lee Harris, a/k/a Justine Delene LeBatti, was convicted of murder under TEX.PENAL CODE ANN. § 19.-02(a)(1) (Vernon 1974). The jury assessed punishment at life imprisonment and a $10,000.00 fine. We affirm.

In Appellant’s first ground of error he alleges that the evidence introduced at trial was insufficient to establish venue in Harris County. This argument, however, is made for the first time on appeal. TEX.CODE CRIM.PROC.ANN. art. 44.-24(a) (Vernon Supp.1984), instructs the court of appeals to presume that venue was proved in the trial court unless venue was either made an issue in the trial court or the record affirmatively appears to establish that venue was improper. Arnold v. State, 486 S.W.2d 345, 346. (Tex.Crim.App.1972); Valdez v. State, 156 Tex.Crim. 192, 240 S.W.2d 320, 321 (1951); Valdez v. State, 141 Tex.Crim. 52, 147 S.W.2d 246, 247 (1941). Venue can be made an issue by objecting or making a bill of exception, for each method alerts the trial court to the attack on the venue. In this case, however, Appellant neither objected nor made a bill of exception. Further, he did not affirmatively establish that venue was in another county.

Appellant cites us to a single remark in his Motion for Instructed Verdict which possibly could be related to venue. It states:

The State of Texas has proved by circumstantial evidence alone that the Defendant was one of three people who probably transported the body of the victim from somewhere and dumped the victim in a body of water in the State of Louisiana.

He failed to specifically argue that venue is incorrect; therefore, the remark is insufficient to raise a challenge to the venue. See Jojola v. State, 624 S.W.2d 338 (Tex.App.-Eastland 1981, pet ref’d); Masters v. State, 306 S.W.2d 355, 356 (Tex.Crim.App.1957). Ground of error one is overruled.

Appellant next attacks the sufficiency of the evidence to uphold his conviction. We find no merit in this argument. However, due to the nature of the crime and the long chain of circumstantial evidence, a lengthy review of the testimony is necessary. We will review the evidence basically in the order of occurrence.

The victim, Lorelei Marie Wickers, a/k/a Delta S. Lee, a teenage runaway from New York, travelled to Texas with two other girls in January 1981. Shortly thereafter, Lorelei met Appellant, a self-admitted pimp, and began working for him as one of his prostitutes. Apparently his only other “girls” were his common-law wife, Sharon (Sheri, Sherri, Cheri) Rada, and Frankie Pesina.

In the spring of 1981, Rada and Lorelei worked in a massage parlor in Austin, Texas. In May or June 1981, they moved back to Houston and, along with Pesina, began working as hostesses and dancers at the Stone Fox Nude Dance Club. The club was near Appellant’s apartment at 501 Greens Road, # 1406. George Banaduc, the owner and manager of the Stone Fox, was interviewed by Ron Adelberg, a special agent with the Houston Division of the Federal Bureau of Investigation (F.B.I.), who testified at trial. Banaduc told Adel-berg that the girls also worked as prostitutes for Appellant and that Appellant always drove them to and from work. He also told Adelberg that the last time he saw Lorelei alive was around 8:00 or 9:00 p.m. on June 3, 1981, when she, Rada and Pesina finished their shift.

On June 5, 1981, at approximately 10:00 a.m., Johnny Williams discovered Lorelei’s nude body while fishing in an alligator-infested canal in the Sabine National Wildlife Refuge in Cameron Parish, Louisiana. One ten-kilo weight was tied around her neck and one was tied around her ankles. The weights were attached with cotton rope and anchored both ends of her body; however her buttocks stuck out of the water, enabling Williams to see her. He pulled her body partially onto the shore with his fishing rod, secured it and notified the authorities, who later recovered it.

Lehrue Stevens, M.D., performed the autopsy on Lorelei. He found large and multiple bruises all over her body; marks on her chest, breast and face that he believed were caused by cigarette burns; a fractured jaw; a hemorrhage on her liver surface; a tear in the capsule of her liver; a gunshot exit wound to her skull with the entry wound in the palate area of her mouth; and bruises and powder burns on her lips, probably caused by the recoil of a gun placed and fired in her mouth. Dr. Lehrue concluded that all of the injuries were pre-mortem, that Lorelei appeared to have been beaten and that she died as a result of massive cerebral damage caused by the gunshot. Dr. Lehrue also noticed post-mortem wounds. One such wound consisted of “pressure marks” on the left side of her body which he opined were made by either a cloth or rubber floor mat. Additionally, he noted that her blood had settled in the left side of her body. He estimated Lorelei had been dead for approximately thirty to thirty-five hours before her body was discovered. (She had last been seen alive approximately thirty-seven hours before the discovery of her body).

Other indentions on the body later were observed by James Supan, a special agent with the F.B.I. in Lake Charles, Louisiana. Supan discovered very small checkered patterns which could have been made by a matted material such as carpet; a hand-print and fingerprints on her left arm, which later were found to be from the tightening grip of her own right hand; and what appeared to be zipper marks on her buttocks.

John C. Saunders, a fingerprint specialist for the F.B.I., saw the body on June 20, 1981. He took fingerprints of the victim. Later, they were matched with latent prints on Delta S. Lee’s massage license application in Austin. Delta was determined to be Lorelei Marie Wickers.

Appellant, Rada and Pesina travelled to Lake Charles, Louisiana and met Tommy Geyen and Warren Landry in front of a bar on June 4, 1981. They were in a Thunderbird which Appellant had rented in Austin. Appellant said they were just passing through and needed some place to stop and rest. Landry offered his house. At about 5:00 p.m. that day, Geyen and Landry drove one car and Appellant, Rada and Pesina drove the Thunderbird down Highway 14 towards the Gulf of Mexico. Landry later decided to return to his house to prepare dinner, and Geyen got in the Thunderbird.

Appellant, Geyen, Rada and Pesina eventually arrived at the Sabine National Wildlife Refuge where Appellant found a ramp near the canal and backed up on it. Appellant told Geyen to go to another area to start a fire. He left for about twenty minutes and attempted to start a fire. During this time, Appellant, Rada and Pesi-na were alone by the Thunderbird. Geyen returned when Appellant asked him to help inflate a raft. He told Geyen that the girls wanted to go skinny dipping and would float out on the raft. While Geyen was assisting Appellant, he saw weights and cotton rope in the car trunk. Appellant said that the weights and rope were to keep the raft from floating too far away from the shore. After the raft was inflated, Appellant instructed Geyen to take the car to a store to buy gas and beer. Pesina accompanied him on the trip which took approximately thirty to forty-five minutes. On the return trip, Geyen lost control of the car and ran into the canal near the home of John Walther, the warden of the wildlife refuge. At Geyen’s request, Walther called a wrecker to pull the car out of the canal and tow it to a storage facility. Walther also called the Cameron Sheriff Department and Deputy Archie L. Bourns arrived at the scene of the accident.

While waiting for the wrecker, Geyen and Pesina directed Walther to the place where they had left Appellant and Rada. The distance from the scene of the accident to the ramp where Appellant and Rada had remained was approximately one to one and one-half miles. Walther testified that he did not see anyone at the ramp. Geyen began gesturing and Appellant and Rada emerged from the weeds where they had been hidden from view. Walther observed that Appellant was well-dressed and carried a gear or garment bag with a long zipper.

Bourns issued two citations, one to Appellant for allowing an unlicensed driver to drive his car and one to Geyen for driving without a license. Bourns also took the names of all four people involved. None of them offered any identification to Bourns but did provide correct names and addresses. Later, a diver found Pesina’s purse, which contained her identification, near the location where the body was found.

Appellant called Landry to pick the four of them up and drive them back to Lake Charles. After Landry took Geyen home, they returned to his house and spent the night. The next day Appellant paid Landry to drive them back to Houston. The last time Landry saw them was in Houston after he had taken them to a U-Haul Truck Rental in north Houston near Appellant’s Greens Road apartment.

On the morning of June 5, the sheriffs department dispatcher informed Bourns that a body had been found in a canal in the refuge. He did not at that time connect the body with the citations he had issued. Walther made the connection, though, when he learned from the sheriffs office that the body was found at the location Geyen had led him to pick up Appellant and Rada. He passed this information on to the sheriffs department and the search for Appellant, Rada and Pesina began.

Appellant’s car was searched while it was in the salvage yard by Roger Rubrecht and James Supan, both of the P.B.I. They found Houston telephone books, a work order for the installation of a telephone for Delta Lee, carpet, a trunk liner, a utility knife package and various other items. The rope, weights and raft, which Geyen previously observed in the trunk, were no longer there. However, at that point in the investigation, the agents were unaware that those items had been seen in and removed from the car. They focused their attention on the utility knife package.

Supan determined that the knife came from White’s Auto Store in Lake Charles. After talking to the manager of the store, he learned that a raft, rope and weights also had been purchased. The receipt showed that the sale occurred on June 4, 1981, one day before Lorelei’s body was found.

Supan also talked to the two clerks who waited on the customer who made the purchase. They both described him as a well-dressed black man who wore a lot of flashy jewelry. They did not identify Appellant at trial. Further discussion with the clerks revealed that the purchaser had asked for more weights but was told that the store did not have any more. The clerks identified the raft box and pictures of the weights and ropes that were found at the scene of the crime as similar to those they had sold. Geyen also identified those items as similar to those he had seen in Appellant’s trunk. Allan T. Robillard, a special agent with the F.B.I., compared rope samples provided by White’s Auto Store with the rope used to tie the weights to Lorelei and determined that they had fairly unique composition and could have originated from the same manufacturer.

The Houston Division of the F.B.I. received the evidence from Appellant’s car and contacted the Houston Police Department (H.P.D.). These items led to Appellant’s empty apartment at 501 Greens Road, # 1406. While at Appellant’s apartment complex, Royce Logan and Ron Adel-berg, both of whom were special agents with the F.B.I., interviewed several people. While speaking to Logan, who testified at trial, Appellant’s next door neighbor described four individuals. The descriptions fit those of Appellant, Rada, Pesina and Lorelei. She also told Logan that a black woman, a white woman and two black men moved the belongings out of the apartment on the evening of either June 5 or 6, 1981. The U-Haul truck rented by Appellant on June 6, which apparently was used to move the belongings, was discovered abandoned in a vacant lot in Las Cruces, New Mexico on June 16.

The investigation of the apartment revealed that a piece of carpet and padding had been cut out of the hallway and Lorelei’s palm print was found on the left side of the lavatory in the bathroom. Officer Flowers cut samples of the carpet to match with the missing piece of carpet in the event it was found.

The matching piece of carpet was found approximately seven weeks later, on July 24, 1981, by Theos Duhon, the Chief Investigator for the Cameron Parish Sheriff Department in Louisiana. It was found in a ditch on a dead end road off of Highway 14, approximately one to two miles south of Lake Charles. Appellant and his party travelled via Highway 14 from Lake Charles to the site where Lorelei’s body was found.

The H.P.D. Crime Lab determined that the stains on the carpet were composed of human blood. James Bolding, who ran the tests, could not type the blood because of the effect the weather and exposure had on both it and the carpet. Nevertheless, Robert H. Werkentin, a Chemist and Toxicologist with H.P.D., concluded that the samples of carpet taken from Appellant’s apartment matched the piece of carpet which was found in Louisiana.

F.B.I. agent Leo Gonzales saw Rada in El Paso on July 3 and arrested her. She led Gonzales and other agents to Appellant’s house where he was arrested. They were returned to Houston for trial. Pesina has never been apprehended.

In circumstantial evidence cases the evidence must exclude every reasonable hypothesis other than guilt of the accused. Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App.1982). Each case is to be tried on its own particular set of facts. Flores v. State, 551 S.W.2d 364 (Tex.Crim.App.1977). However, the court is not to ask whether it believes the evidence established guilt beyond a reasonable doubt. Rather, it is to ask whether a rational fact finder could have found the defendant guilty beyond a reasonable doubt. Girard, 631 S.W.2d at 163.

We have carefully examined the evidence under the standard of review for convictions based on circumstantial evidence articulated in Carlsen v. State, 654 S.W.2d 444 (Tex.Crim.App.1983) (en banc). Carlsen stated that

A conviction based on circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. It is not required that the circumstances should, to a moral certainty, actually exclude every hypothesis that the act may have been committed. by another person, but that the hypothesis is a reasonable one consistent with the circumstances and the facts proved. Each fact need not point directly and independently to the guilt of the accused, as the cumulative effect of all the incriminating facts may be sufficient to support the evidence. However, proof which amounts only to strong suspicion or mere probability is insufficient.

Id. at 447 (cites omitted).

Having followed the mandates of the court of criminal appeals, we conclude that a rational trier of fact could have found from the cumulative circumstantial evidence that Appellant was guilty beyond a reasonable doubt. We further find that under the evidence introduced, every reasonable hypothesis other than the guilt of Appellant has been excluded. Ground of error two is overruled.

Appellant complains in his third ground of error that the trial court failed to apply.the law of parties to the facts of the case and that the instructions did not require the jury to find Appellant committed any of the acts listed in TEX.PENAL CODE ANN. §§ 7.01 & 7.02(a)(2) (Vernon 1974). The court’s charge read:

III.
You are instructed that all persons are parties to an offense who are guilty of acting together in the commission of an offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
A person is criminally responsible for an offense committed by the conduct of another, if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Mere presence alone does not constitute one a party to an offense.
IV.
Now if you find from the evidence beyond a reasonable doubt that on or about the 3rd day of June, 1981, in Harris County, Texas, the defendant, ERNEST LEE HARRIS, either acting alone or together with another or others as a party, as that term has been defined, did intentionally or knowingly cause the death of an individual, LORELEI MARIE WICKERS, by shooting her with a gun, then you will find the defendant guilty of murder, as charged in the indictment.
Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of murder, [emphasis added]

A similar instruction was upheld in White v. State, 385 S.W.2d 397 (Tex.Crim.App.1964). In White, the court defined the term “principal” and then told the jury that it could convict defendant only if they found that he was “acting alone or jointly as a principal, as the term principal has been defined to you Id. at 400 (emphasis added). The court held that that charge “adequately protected the rights of the appellant.” Id.

Likewise, we find no defects in this court’s charge. In Paragraph III, the court submitted the general legal principles involved by tracking the language of §§ 7.01 and 7.02(a)(2). Paragraph IV correctly applied the law to the facts by instructing the jury to acquit Appellant if they did not find that he, acting alone or as a party, “as that term [was] defined” committed the murder. We hold that this charge was proper and not erroneous.

This charge clearly does not suffer from the defects found in the charge at issue in Apodaca v. State, 589 S.W.2d 696 (Tex.Crim.App.1979), as Appellant argues. In applying the law of parties to the facts, the Apodaca jury was charged to find the defendant guilty if he, “as a principal ” (emphasis added), was found to have committed the acts requisite to conviction. No mention of finding the defendant guilty as a party was made. Ground of error three is overruled.

We affirm the conviction.


text:
    Michael Luther WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. C14-83-636CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1984.

      Bobbi L. Blackwell, Connie Brown Williams, Houston, for appellant.
    Calvin Hartmann, Houston, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant was convicted of aggravated robbery under TEX.PENAL CODE ANN. § 29.03 (Vernon 1974). His sentence, enhanced by a prior conviction, was set at thirty-six years. One of the grounds of error deals with the proper authentication of a State of Missouri pen packet. We find no error and the judgment is affirmed.

In ground of error one, Appellant alleges that the result of a pre-trial line-up should have been suppressed because he was denied his right under U.S. CONST, amend. VI to have an attorney present at that line-up. He argues that he had the right to an attorney because he was the focus of the police department’s investigation and was to be charged immediately following the line-up, relying on Escobedo v. State, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

We find the facts of Escobedo inap-posite to our facts. Escobedo held that regardless of whether charges have been brought: (1) when an investigation focuses on a particular suspect; and (2) a police officer interrogates that suspect without advising him of his right to remain silent; and (3) the suspect requests, but is denied, counsel; and (4) the suspect makes an incriminating statement; that (5) the statement will be suppressed because the suspect’s sixth amendment right to counsel has been violated. The only common elements between Escobedo and the facts in our case are that neither Escobedo nor Appellant had been charged and both were the focus of a police investigation. However, Appellant was more than a suspect in that the police were going to formally charge him immediately after the line-up. While we find this a distinguishing element not present in other similar cases, we are constrained to follow the stare decisis of this State. Appellant did not have the right to counsel at the line-up because charges had not been brought at that time. Rudd v. State, 616 S.W.2d 623, 624 (Tex.Crim.App.1981). Ground of error one is overruled.

Ground of error two contains an allegation that the in-court identification of Appellant was tainted by an “inherently unfair” pre-trial line-up. We find no error because Appellant was identified in court by a person not present at his line-up. This identification was based on an independent recollection of Appellant, and the trial judge was correct in allowing it. See Thomas v. State, 605 S.W.2d 290, 294 (Tex.Crim.App.1980) (en banc); Shannon v. State, 681 S.W.2d 139 (Tex.App.-Houston [14th Dist.] 1984, pet. requested). Ground of error two is overruled.

Appellant next contends that the trial judge erred when he allowed the prosecutor to infer that he had personal knowledge that Appellant had committed other crimes. The testimony upon which this ground of error is based was innocuous and we find no error. Further, Appellant never obtained an adverse ruling on his objection; rather, his motion for mistrial was overruled. Thus error, if any, was waived. See Cain v. State, 549 S.W.2d 707, 716 (Tex.Crim.App.1977); Bazroux v. State, 634 S.W.2d 919, 924 (Tex.App.-Houston [1st Dist.] 1982, no pet.). Ground of error three is overruled.

In ground of error four, Appellant complains that the prosecutor was allowed “to make a gross misstatement of the facts” in his closing argument, i.e. the prosecutor’s statement that “[the jury] heard no argument that there was anything wrong with that lineup [sic] procedure.” We find no harm in this remark. Ground of error four is overruled.

In ground of error five, Appellant contends that his indictment should have been quashed because it violated TEX. CODE CRIM.PROC.ANN. art. 21.24(a) (Vernon Supp.1984), by charging him with four separate offenses which did not arise out of the same criminal episode. This issue is moot because the State abandoned all but one count of the indictment and only that count was presented to the jury. See Meeks v. State, 653 S.W.2d 6, 10 (Tex.Crim.App.1983) (en banc); Shannon v. State, 681 S.W.2d 142 (Tex.App.-Houston [14th Dist.] 1984, no pet.). Ground of error five is overruled.

Appellant alleges, in ground of error six, that there was insufficient evidence to establish that he previously had been convicted of an offense which was used to enhance his sentence. He first argues that the enhancement paragraph did not allege that the Appellant had been convicted of a particular count, just ‘robbery first degree.’ This statement is patently incorrect for the enhancement paragraph specifies that the State relied on the felony of Robbery First Degree in Cause No. 78-853. Cause No. 78-853 did include two counts, but only one count alleged Robbery First Degree. Further, other instruments which were tendered into evidence constituted sufficient evidence that Appellant was convicted of the offense relied on in the enhancement paragraph.

Appellant also complains of a violation of TEX.PENAL CODE ANN. § 12.-42(d) (Vernon 1974), which applies when two prior offenses are alleged. Under § 12.42(d), the State must establish that the conviction for the first prior offense was final before the second prior offense was committed in order to use both prior offenses for enhancement. Since only one prior offense was alleged, the State did not have to establish the date the prior offense was committed; rather, it merely had to establish the date the prior conviction became final and that the primary offense occurred subsequently. The State established what was necessary to prove the prior offense for enhancement purposes. Ground of error six is overruled. See Diremiggio v. State, 637 S.W.2d 926, 928 (Tex.Crim.App.1982).

In his final ground of error, Appellant contends that there was insufficient evidence to establish that his pen packet was properly authenticated because the language in the certification referred to fingerprints, photographs and the Commitment but made no mention of the judgment or sentence. He relies on Scott v. State, 553 S.W.2d 361 (Tex.Crim.App.1977), which dealt with pen packets from Louisiana. The certifications in Scott also referred to photographs, fingerprints and the Commitment with no mention of the authenticity of the sentences.

The pen packet in this case was provided by Missouri. As previously stated, the certification page stated that the photographs, fingerprints and Commitment attached to the certificate were true and correct copies of Appellant’s original records. The Commitment itself certifies that the judgment and sentence, which are set out at the top of the page of the same instrument are correct. As pointed out in Williford v. Stewart, 355 Mo. 715, 198 S.W.2d 12, 15 (1946) (en banc), the Missouri Commitment is a certified copy of the judgment and sentence. See also State v. Hicks, 376 S.W.2d 160, 162 (Mo.1964); State v. Harrison, 276 S.W.2d 222, 226 (Mo.1955). Thus, since the Commitment was certified, the judgment and sentence necessarily were also certified.

The Scott ruling has no application to this case because the Louisiana Commitment differs from the Missouri Commitment. Louisiana apparently records the sentence on one instrument and records the judgment on another instrument, while Missouri records both sentence and judgment on a single instrument. Having found that the pen packet was properly authenticated, and was in compliance with TEX.REV.CIV.STAT.ANN. art. 3731a. (Vernon Supp.1984), we overrule ground of error seven.

The judgment is affirmed.


author: ELLIS, Justice.

text:
    James Terrell SMITH v. The STATE of Texas.
    No. B14-83-785-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1984.

      William Johnson, Houston, for appellant.
    Calvin A. Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Appellant, James Terrell Smith, appeals from a judgment of conviction of the felony offense of aggravated robbery enhanced with two prior felony convictions. Appellant entered a plea of not guilty. The jury found appellant guilty and the judge, finding the two enhancement paragraphs of the indictment true, sentenced him to sixty years confinement in the Texas Department of Corrections.

Appellant brings three grounds of error on appeal. Ground of error one claims that appellant’s punishment was improperly enhanced with a void prior conviction. Appellant’s second ground of error asserts that appellant was improperly impeached with the void prior conviction. In ground of error three appellant alleges that the trial court erred in refusing to allow appellant to elicit testimony concerning the alien status of the complainant and two other state’s witnesses, thereby denying appellant’s rights of confrontation and cross-examination.

We agree with ground of error one. We find grounds of error two and three have no merit. Therefore, we affirm and remand for resentencing.

Juan E. Guerrero, the complainant, and his two brothers, Jose and Jerrardo, testified that appellant drove alongside of the car that they were in. Appellant demanded money and fired a shot from a pistol into their car. Juan was driving the 1977 green Mercury Capri. Jose Guerrero, who was in the front passenger seat, was injured on his hand by flying glass caused by the bullet. Juan fled to a nearby house and had the police called. Appellant got out of his car and fired another shot. Appellant then grabbed Jose, put the gun to his head, and took his money. Jose ran away while appellant was asking Jerrardo for his money. Appellant then grabbed Jerrardo who was1 in the back seat of the car, took his watch, address book, and money, and then hit him on the ear with the gun. Appellant then attempted to drive away in the Guerrero car, a 1977 green Mercury Capri, leaving his red Pontiac at the scene. The police officer arrested appellant a half a block from the scene driving the Guerrero car. The police recovered from appellant’s coat pocket Jerrerado Guerrero’s watch, address book, and money. A pistol was discovered on the ground near the scene of the arrest. At the trial all three of the Guerrero brothers testified that appellant, James Terrell Smith, robbed them.

Appellant testified that he did not rob the brothers, that he had been involved in a minor traffic accident with their car, and that they offered to pay for the damages to his car. He denied having a gun at the scene. He also stated he had been drinking that day and did not remember being arrested in the Guerrero car. He also did not know how Jerrardo’s watch and address book got into his coat pocket.

The police officers testified that they arrested appellant driving the Guerrero car and that there was no evidence of a traffic accident. They also stated that they recovered a .38 caliber pistol on the ground near appellant’s arrest and recovered money, a watch, and an address book from his coat pocket.

The jury found appellant guilty. At appellant’s election, the trial court assessed punishment. At the punishment hearing, appellant plead not true to the enhancement paragraphs of the indictment, and once again sought to quash the enhancement paragraph which alleged the void 1973 robbery by assault conviction. The court found that the two enhancement paragraphs were true and assessed appellant’s punishment at sixty years.

In ground of error two, appellant asserts that the trial court erred in allowing appellant’s impeachment with a void prior conviction. Specifically, appellant claims that the 1973 conviction for robbery by assault is void because it was based on a fatally defective indictment. Additionally, appellant asserts that the 1980 possession of a firearm by a felon conviction is void because appellant’s classification as a felon arose from the void 1973 robbery by assault conviction. In Johnson v. State, 660 S.W.2d 536 (Tex.Crim.App.1983), the appellant contended that the trial court erred in overruling the appellant’s objection to the introduction of an extraneous offense. The court found that the objection should have been sustained, but the court also found reversal was not necessary in light of the uncontradicted evidence of the appellant’s guilt. In Johnson, the court held that the test for harmless error, even where the error is constitutional, is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction or affected the punishment assessed, citing Clemons v. State, 605 S.W.2d 567 (Tex.Crim.App.1980). As in Johnson, the trial court had before it overwhelming evidence of appellant’s guilt. The average juror would not have found the State’s case significantly less persuasive with the exclusion of the 1973 robbery by assault. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). Appellant was also impeached by use of a forgery conviction, a perfectly valid conviction.

Appellant states that the admission of the void 1973 robbery by assault conviction may have influenced the jury’s perception of the evidence and tainted their verdict. We find that appellant has not shown any evidence that the jurors were so influenced. The mental processes by which the jurors reach their verdict are not grounds for reversal. Daniels v. State, 600 S.W.2d 813 (Tex.Crim.App.1980); Berry v. State, 588 S.W.2d 932 (Tex.Crim.App.1979).

Appellant has failed to show that the admission of the void 1973 robbery by assault conviction was so prejudicial as to require reversal. We find that the trial court’s error here was harmless.

Appellant claims he was improperly impeached by a void 1980 conviction for possession of a firearm by a felon because his felon status derived from the void 1973 robbery by assault conviction. We find no evidence in the record to show that the 1980 conviction for possession of a firearm by a felon was based on a void conviction to determine his status as a felon in that indictment.

Allegations which are not supported by the record, will not be accepted as fact in a criminal case. Herrin v. State, 525 S.W.2d 27 (Tex.Crim.App.1975); Washington v. State, 500 S.W.2d 485 (Tex.Crim.App.1973). The court properly allowed the state to impeach appellant by this prior felony conviction.

In ground of error three, appellant alleges that his rights of confrontation and cross examination were denied when the court refused to allow appellant to elicit testimony during cross-examination concerning the alien status of the complainant and two state’s witnesses. We find that such testimony would be immaterial to the case at bar. The alien status of complainant and the two witnesses clearly has no relationship to the alleged crime. In addition, the scope of cross examination is subject to the broad discretion of the trial court. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974); Saunders v. State, 572 S.W.2d 944 (Tex.Crim.App.1978); Toler v. State, 546 S.W.2d 290 (Tex.Crim.App.1977). We find that the trial judge did not abuse his discretion.

In ground of error one, appellant alleges that his punishment was improperly enhanced with a void prior conviction. He claims that the indictment in appellant’s 1973 robbery by assault conviction is defective because the indictment failed to allege an ownership interest. Appellant filed a pre-trial motion to declare this conviction void and moved to quash the enhancement allegation based on this conviction. The trial judge denied the motion. Additionally, appellant unsuccessfully sought to quash the enhancement allegation during the punishment stage of the trial. We find the trial court erred. An indictment for robbery by assault which fails to allege ownership of the property taken is fatally defective. Lucero v. State, 502 S.W.2d 128 (Tex.Crim.App.1973). Since the indictment was fatally defective, the 1973 conviction is void. Therefore, it was improper for the trial court to consider the 1973 conviction for enhancement purposes.

A new hearing on punishment is required so that any taint from consideration of the invalid 1973 conviction is removed. Any relief short of a remand for a new hearing on punishment would allow us to improperly speculate on the degree of prejudice suffered when the trial court based its punishment determination in part on a void prior conviction. Ex parte Hunter, 616 S.W.2d 626 (Tex.Crim.App.1981); Borrego v. State, 558 S.W.2d 1 (Tex.Crim.App.1977).

We must remand this case with instructions that the trial court conduct a new punishment hearing and resentence appellant.


author: J. CURTISS BROWN, Chief Justice.

text:
    Manuel JOSEPH, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-808-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1984.
    Randy McDonald, Houston, for appellant.
    Calvin A. Hartmann, Houston, for appel-lee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

Manuel Joseph appeals from his conviction by a jury of aggravated robbery. Punishment, enhanced by two prior felony convictions, was assessed at sixty-five years confinement in the Texas Department of Corrections. Appellant’s sole ground of error is insufficiency of the evidence. We affirm.

On May 19, 1983, appellant and another man entered the premises of Ful-Line Health Foods, pulled out guns and demanded money of store employee Donna Ferguson. One of the men also brandished a gun at store manager Joyce Swarb and her daughter Fairie Gholston, who were in the back of the store when the men first entered.

In the course of the robbery the two men forced the victims to give up their jewelry. Their purses and the store's money bag were also taken.

The victims were repeatedly threatened with harm if they did not help the men find the money bag and the purses. Fairie Gholston and Joyce Swarb testified that both men pointed guns directly at them at point-blank range and said, “I’m going to have to kill you.”

The men then forced the victims to huddle in the bathroom while the men searched the store for valuables. At this point one of the men warned Fairie Gholston, “If you open the door, I’ll blow your head off.” A moment later, when Ms. Gholston tried to open the bathroom door, the man said, “I’m going to blow your head off if you don’t get in the bathroom. I told you not to touch that door.”

In her testimony Joyce Swarb described the type of weapon used in the incident as a “long-barrelled gun.” In their remaining testimony all three women simply referred to the weapons as “guns.”

The indictment charging appellant with aggravated robbery alleged that appellant committed the offense by “using and exhibiting a deadly weapon, to wit: a firearm.” Appellant contends that the State failed to prove the use of a firearm beyond a reasonable doubt. Specifically he alleges that the reference to “guns” and to a “long-barrelled gun” by the three state’s witnesses at trial were insufficient to establish that a firearm was used.

In Wright v. State, 591 S.W.2d 458 (Tex.Crim.App.1979), testimony as to a weapon alternatively referred to at trial as a gun, a pistol, and a revolver was held sufficient to prove the use of a “deadly weapon.” In Riddick v. State, 624 S.W.2d 709 (Tex.App.-Houston [14th Dist.] 1981, no pet.), we held that where a witness has positively identified a weapon as a pistol, nothing more is required to support a conviction of the use of “a deadly weapon, to wit, a firearm.” Absent any specific indication to the contrary at trial, a gun is a firearm. Appellant’s ground of error is therefore without merit and is overruled.

The judgment and order of the trial court are affirmed.


text:
    John VELA, Appellant, v. The STATE of Texas, Appellee.
    No. A14-83-847-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Sept. 20, 1984.
    Marshall Mack Arnold, Houston, for appellant.
    Calvin A. Hartmann, Houston, for appel-lee.

      Before J. CURTISS BROWN, C.J., and ROBERTSON and ELLIS, JJ.
   J. CURTISS BROWN, Chief Justice.

John Vela appeals from his conviction by a jury of possession of a short-barrel firearm. Punishment, enhanced by a prior felony conviction, was assessed by the jury at twenty-three years confinement in the Texas Department of Corrections. Appellant raises one ground of error, insufficiency of the evidence. We affirm.

On October 5, 1983, Houston Police Officers Jesse Garcia and Frank Quinn, then on patrol in' Northwest Houston, saw a car stalled in the center lane of the 9300 block of Long Point. The car’s lights were out and its hood was up. Officer Garcia pulled up behind the stalled car to see if it might be moved off the road.

As he approached the stalled car officer Garcia observed one man working under the hood, appellant sitting in the front seat of the car on the passenger side, and a third man sitting in the back seat.

Officer Garcia then noticed the appellant making a downward reaching motion. In his testimony at trial the officer characterized appellant’s movement as a “continuous motion” downward made in an effort to reach something. He immediately ordered all three men to gather in one spot behind the car with their hands out where the officer could see them.

Noting that all three men appeared intoxicated, officer Garcia placed them under arrest and conducted an inventory search of the car. In the course of his search he discovered a short-barreled shotgun underneath the front seat on the passenger’s side. He found two bandanas and two pairs of gloves under the same seat, this time underneath the driver’s side. He also found several beer cans resting on the floor of the car under the dashboard.

Appellant, in his own testimony, denied any knowledge of the existence of the shotgun. He stated that the purpose of the downward reaching motion was to place a beer can on the floor of the car so that he would not be observed holding it. Appellant also stated that he had only ridden in the car three times in the last few months. In a part of his testimony that was undisputed, it was established that the car belonged neither to appellant nor to the driver, Florencio Medrano. The car’s usual driver was another man known to appellant and Medrano as “Little Ray.”

In possessory offenses, whether the State’s theory is one of sole or of joint possession, the evidence must affirmatively link the accused to the unlawful weapon in such a manner and to such an extent that a reasonable inference may arise that defendant knew of the weapon and that he exercized control over it. Such affirmative link may be established by showing additional facts and circumstances which indicate the accused’s knowledge and control of the weapon. Dubry v. State, 582 S.W.2d 841, 843 (Tex.Crim.App.1979).

In the instant case, appellant’s knowledge and control of the shotgun are proved circumstantially by his sudden reaching gesture in the direction of the weapon and his close proximity and access to it. These facts link appellant to the weapon adequately to elevate the cumulative force of the State’s case to a level beyond proof of appellant’s simple presence at the place of possession, which by itself would be insufficient. Harrison v. State, 555 S.W.2d 736 (Tex.Crim.App.1977). In all those cases cited by appellant in which convictions in possessory offenses were overturned, the State had not established the combined elements of a furtive gesture, of close proximity, and of a high degree of access. See Dubry v. State, supra; Harrison v. State, supra; Harvey v. State, 487 S.W.2d 75 (Tex.Crim.App.1972). In reaching our result we look to Payne v. State, 480 S.W.2d 732 (Tex.Crim.App.1972), in which it is suggested that a defendant’s actions toward the contraband (here weapon) may indicate an intent to break the law, and that degree of access to the weapon may be probative as to the issue of control. See also Earvin v. State, 632 S.W.2d 920, 924 (Tex.App.-Dallas 1982, pet. ref’d). We conclude that the evidence submitted at trial of appellant’s furtive gesture toward the shotgun lying directly underneath his seat was sufficient to circumstantially prove his knowledge and control of the weapon.

Before a conviction based on circumstantial evidence can be sustained, however, the circumstances of the case must exclude every other reasonable hypothesis except that of the guilt of the accused. Dubry v. State, 582 S.W.2d 841, 844 (Tex.Crim.App.1979). Here, appellant testified that he was setting down a beer can, not reaching for a shotgun, and Officer Garcia conceded the possibility of this explanation on cross-examination.

This, however, was a fact question for the jury to resolve. The jury chose to believe Officer Garcia’s version of the incident and not appellant’s. As a reviewing court we must look at all the evidence in the light most favorable to the verdict. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984) (en banc). Given the inconsistencies present in appellant’s testimony at trial, we conclude that a rational trier of fact could have rejected appellant’s hypothesis as unreasonable and found appellant guilty beyond a reasonable doubt. Id. Appellant’s ground of error is therefore overruled.

The judgment and the order of the trial court are affirmed.


author: PER CURIAM.

text:
    EAST TEXAS OXYGEN CO., Appellant, v. The STATE of Texas, Appellee.
    No. 13893.
    Court of Appeals of Texas, Austin.
    Oct. 3, 1984.

      Sander Shapiro, Austin, for appellant.
    Jim Mattox, Atty. Gen., Gilbert J. Bernal, Jr., Asst. Atty. Gen., Austin, for appellee.
    Before PHILLIPS, C.J., and EARL W. SMITH and FLAMMAGE, JJ.
   PER CURIAM.

East Texas Oxygen Co. (ETOC) filed an action for recovery of excess sales or use taxes paid under protest to appellee Bob Bullock, Comptroller of Public Accounts, after Bullock disallowed ETOC’s claim for refund of such taxes. Art. 20.10(H) (§ 112.051).

ETOC purchased certain cylinders in question from various suppliers, and did not pay sales tax to the suppliers, but instead gave them “resale certificates.” The average cost of each cylinder to ETOC was approximately $75, and ETOC depreciates the cylinders over a useful life of fifteen years. ETOC then filled the cylinders with gas. ETOC then simultaneously leased the cylinders and sold the gas therein to various buyers. ETOC leases the cylinders at a rental of fifty cents per month, and makes the charge separate from the charges for the sale of the gas. ETOC derived 18% of its revenue during the years in question from the lease of these cylinders. Some of the buyers gave ETOC a resale certificate, and in turn sold the gas and leased the cylinders to other buyers who consumed the gas and paid to the former buyers a sales tax on the receipts from the lease of the cylinders. The other buyers consumed the gas and paid to ETOC a sales tax on ETOC’s receipts from the lease of the cylinders, which ETOC remitted to the State. The Comptroller and the district court held that ETOC was liable to pay a sales or use tax on the sales price paid by ETOC to ETOC’s suppliers for the cylinders.

A sales tax is imposed “on the receipts from the sale at retail of all taxable items within this State.” Art. 20.02 (§ 151.051). “Retail Sale” or “Sale at Retail” is defined as “any sale of a taxable item”; “taxable item” is defined as “tangible personal property.” Art. 20.01(1), (P), (W) (§§ 151.052, 151.009,151.010). An excise tax is imposed on the use of taxable items purchased from any retailer for use in this State, at the same rate as the tax imposed in art. 20.02, on the sales price of the taxable item. Art. 20.03 (§ 151.101). “Use” includes the exercise of any right or power incident to its ownership but does not include its sale in the regular course of business. Art. 20.-01(R) (§ 151.011). However, if receipts from the sale of a taxable item are required to be included in the measure of the sales tax imposed by art. 20.02, the use of that taxable item is exempted from the use tax imposed by art. 20.03. Art. 20.04(K) (§ 151.303). Every retailer is required to add to his sales price the sales tax imposed by art. 20.02, and the sales tax becomes a debt of the purchaser until paid. Art. 20.-021(A) (§ 151.052). Persons using taxable items in this State are liable to pay the art. 20.03 use tax, but can relieve this liability by paying the tax to a retailer engaged in a business in this state, and retaining a receipt from such a retailer. Art. 20.031(A) (151.102). The retailer is required to pay the sales taxes and remit the use taxes to the State. Art. 20.05(B), (D)(1), (2) (§§ 151.-410, 151.406). All gross receipts are presumed to be receipts from “sales at retail” and subject to the sales tax, and all property sold for delivery in this State is presumed to be sold for use in this State and subject to the use tax, until the seller carries his burden to prove the contrary, unless the seller takes in good faith a “resale certificate” from the purchaser. Arts. 20.-021(F); 20.031(F) (§§ 151.054, 151.104). A purchaser may give a “resale certificate” to the seller if at the time of the purchase the purchaser intends to sell, lease, or rent in the regular course of business the taxable item purchased, or is unable to determine whether he will do so or use the item for some other purpose. Arts. 20.021(G), 20.031(G) (§ 151.051). However, if a purchaser who gives a resale certificate makes any use of the tangible personal property other than retention, demonstration, or display while holding it for sale, lease, or rental in the regular course of business or for transfer as an integral part of a taxable service in the regular course of business, the use is taxable to the purchaser when the property is first so used, and the sales price of the property to the purchaser is the measure of the tax. Arts. 20.021(1), 20.031(1) (§ 151.154).

The receipts from all “sales for resale, leasing, [or] renting” are exempted from the taxes imposed by chapter twenty, i.e. the sales and use taxes imposed by arts. 20.02 and 20.03. Art. 20.04(0)(1) (§ 151.-302). “Sale for Resale” is defined as “a sale of tangible personal property to any purchaser who is purchasing said tangible personal property for the purpose of reselling it ... in the normal course of business either in the form or condition in which it is purchased, or as an attachment to, or integral part of, other tangible personal property,” or as “a sale of tangible personal property to a purchaser for the sole purpose of that purchaser’s renting or leasing ... the tangible personal property to another person_” Art. 20.01(S) (§ 151.-006). “Sale” includes any lease or rental of tangible personal property for a consideration. Art. 20.01(K)(l)(a) (§ 151.005).

The receipts of sales and the use of the following are exempt from the sales and use taxes: (1) nonreturnable containers when sold without the contents to persons who place the contents in the container and sell the contents together with the container; (2) containers when sold with the contents if the sales price of the contents is not required to be included in the measure of the sales or use tax; and (3) returnable containers when sold with the contents in connection with a retail sale of the contents or when resold for refilling. “Returnable containers” are containers “of a kind customarily returned by the buyer of the contents for reuse; all other containers are “nonreturnable containers.” Art. 20.-04(E)(3) (§ 151.322).

ETOC insists for several reasons that it is not liable to pay a sales or use tax on the sales price paid to ETOC’s suppliers for the cylinders. First, ETOC argues that its purchase of the cylinders is not a “sale at retail” subject to the sales tax under art. 20.02, but is a sale at wholesale. In connection with this argument ETOC invokes the rule that statutes imposing a tax are to be strictly construed. Second, ETOC maintains that even if its purchase is a “sale at retail” subject to the sales tax, this sale is exempted from the sales and use tax because it is a “sale for resale, leasing, [or] renting.” ETOC argues that this sale is a “sale for resale” because ETOC purchased the cylinders “for the purpose of reselling” them “in the normal course of business in the form or condition in which [they are] purchased, or as an attachment to, or integral part of, other tangible personal property.” ETOC contends that it is “reselling” the cylinders when it leases the cylinders to its buyers because the “sale” is defined to include the lease or rental of the cylinders, and because the cylinders were previously sold to ETOC. In support of its contention that it buys the cylinders for the purpose of reselling them, and not merely as a means of delivering gas to gas buyers, ETOC calls attention to the fact it derived 18% of its revenues during the years 1970-74 from cylinder rentals, notwithstanding the low rental charge, and assesses and records these charges apart from charges for the gas itself. ETOC also emphasizes that a sales tax is collected on the cylinder rentals from the ultimate consumer of the gas. Finally, ETOC argues that it did not “use” the cylinders and become liable to pay a use tax, merely by filling them with gas, because the resale of the cylinders does not constitute “use,” and the sale constitutes a “resale” even if the seller does something to the cylinders, provided that he sells it “in the form or condition in which it was purchased,” or as an attachment to or integral part of other tangible personal property.

We hold that the sale of the cylinders to ETOC is a “sale at retail,” the receipts of which are subject to the art. 20.02 sales tax unless exempted, notwithstanding that ETOC leases the cylinders after purchasing them. Although the subsequent lease may prevent this sale from constituting a retail sale in the ordinary sense of the term, “sale at retail” is statutorily defined to include “any sale of a taxable item,” that is, any sale of personal property in “any manner perceptible to the senses.” Art. 20.01(I)(1), (P), (W). The sale of cylinders to ETOC is clearly within this definition, and cannot be excluded by strict construction.

ETOC does not contend that the cylinders are not “returnable containers” within the meaning of art. 20.04(E)(3)(b) (§ 151.-322). They are, because they are “containers of a kind customarily returned by the buyer of the contents for reuse.” Neither does ETOC contend that art. 20.04(E)(3) (§ 151.322) exempts its purchase of the cylinders from the sales tax, and ETOC concedes that it does not. We agree. Article 20.04(E)(3)(a)(i) (§ 151.322(a)(2)) exempts only the receipts of sales of nonreturnable containers without the contents to persons who place the contents and sell the contents together with the container. Article 20.04(E)(3)(a)(iii) (§ 151.322(a)(3)) exempts only the receipts from the sales of returnable containers with the contents in connection with a retail sale of the contents, and receipts from resales of such containers for refilling.

We assume that the receipts of a sale of a returnable container may sometimes also be exempt from the sales tax as a “sale for resale” under art. 20.04(0) (§ 151.302). For example, if ETOC sold its cylinders filled with gas to buyers who in turn sold them to other buyers, the sale by ETOC might be exempt under art. 20.-04(E)(3)(a)(iii) (§ 151.322(a)(3)) as a sale of a returnable container in connection with a retail sale of the contents, given the broad definition of “retail sale” in art. 20.01(I)(1). The sale by ETOC might also be exempt under art. 20.04(0) (§ 151.302) as a sale for resale.

We may also assume that ETOC’s purchase of the cylinders literally constitutes a “sale for resale, leasing, or renting” within the meaning of art. 20.04(0) (§ 151.302), and is within the literal definitions of “sale for resale” stated in art. 20.01(S)(1), (2) (§ 151.006).

Nevertheless, the legislative intent clearly manifested by art. 20.-04(E)(3)(a)(iii) is that receipts from the sale of returnable containers to persons who place the contents in the container and sell the contents together with the container are subject to and not exempt from the sales tax. The manifest intent of the statute is that the sales tax be imposed at some time on the sale of each container, either on the sale of the container to the person who sells goods in the container, or on the sale of the goods and container to the consumer. If the container is nonreturnable, the seller of the goods does not pay a tax on his purchase of containers for the goods, and the consumer of the goods pays the tax on the container. This is merely a specific application of the “sale for resale” exemption, which operates to impose the sales tax only on the consumer. If the container is returnable, or if the sale of the goods to the consumer is exempt, the seller of the goods pays the tax on his purchase of the container and the consumer of the goods does not; and neither is any tax paid when the container is resold for refilling. This is an exception to the general “sale for resale” exemption and the rule that the consumer pays the sales tax. It is obviously designed to avoid imposition of multiple taxes on the value of returnable containers each time they are transferred from the seller of the goods contained therein to a buyer or back to the seller. This would constitute an unfair and discriminatory burden on sellers and consumers of goods which must be sold in returnable containers. Alternatively, this exception to the general rule is designed to insure that a sales tax is imposed at some time on the value of the returnable container. If the tax is not imposed on the seller’s purchase of the container, no tax would ever be imposed on its value, because (1) the sale of the container with the goods to the consumer is clearly exempt under art. 20.-04(E)(a)(iii), and (2) every sale of the returnable container by the seller of the goods to the buyer, or from the buyer of the goods back to the seller, would be a “sale for resale” exempt from the tax. This would create an unfair discrimination in favor of sellers and consumers of goods sold in containers.

The seller of the goods cannot claim exemption from taxation on his purchase of the returnable container, even though this is a “sale for resale” under the literal statutory definition of that term. To implement the obvious statutory purposes, it is necessary first to infer from the express exemption for sales of returnable containers in connection with retail sales of the goods, that the initial purchase of the containers by the seller of the goods is not exempt. This inference must also be made in order to give meaning and effect to the provisions of art. 20.04(E)(3) (§ 155.322) exempting the sales for empty, nonreturnable containers to one who sells goods in the containers, and the resale of returnable containers for refilling. Unless such an inference is made, these provisions are meaningless because these sales are already exempt as “sales for resales.” Eddins-Walcher Butane Co. v. Calvert, 156 Tex. 587, 298 S.W.2d 93, 96 (1957). This provision for imposition of the sales tax on the seller of the goods, while implied and not expressed, is nevertheless required by provisions specifically dealing with containers and must prevail over and constitute an exception to the general rule that “sales for resale” are exempt from the sales tax. Sam Bassett Lumber Co. v. City of Houston, 145 Tex. 492, 198 S.W.2d 879, 881 (1947). This construction is in accordance with the letter and the rationale of the rule that “tax exemptions are subject to strict construction since they are the antithesis of equality and uniformity.” Hilltop Village, Inc. v. Kerrville Ind. Sch. Dist., 426 S.W.2d 943, 948 (Tex.1968). We have already shown the inequality and lack of uniformity which would be produced by a contrary construction. The construction adopted by this Court is also in accordance with long-standing rulings by the Comptroller, which are entitled to great weight. Calvert v. Kadane, 427 S.W.2d 605, 608 (Tex.1968). Our holdings are in accord with the decisions of courts which have addressed similar questions of statutory construction. Pepsi-Cola Bottling Co. v. Peters, 189 Neb. 271, 202 N.W.2d 582 (1972); Red Fox Gingerale Co. v. Langton, 100 R.I. 531, 217 A.2d 466 (1966). See also American Transfer & Storage Co. v. Bullock, 525 S.W.2d 918, 925 (Tex.Civ.App.1975, writ ref'd).

ETOC contends, however, that its purchase of the cylinders is exempt as a “sale for resale” because ETOC leases the cylinders. The use of the leasing arrangement does avoid some of the problems discussed above underlying the exemption of the consumer’s purchase of the returnable container with the goods contained therein and the non-exemption of the seller’s initial purchase of the returnable container. For example, with the leasing arrangement, the lease of the cylinder by the buyer is not exempt as a “sale for resale,” because the buyer never sells the cylinder back to ETOC. However, the buyer’s lease of the cylinders is still exempt under art. 20.-04(E)(3)(a)(iii), because the lease would constitute a “sale” of the returnable container within the meaning of that section. Therefore, despite the leasing arrangement, no tax may be collected on the value of the cylinders unless it is imposed on the sale of the cylinders to ETOC. Also, since a seller of goods cannot avoid paying sales tax on his purchase of returnable containers for the goods if he sells the containers to the consumer, he should not be allowed to do so merely by conducting the same transaction in the form of a lease. This would provide such sellers an easy means of evading the tax on their purchases of returnable containers. In Davis-Kemp Tool Co. v. Bullock, 584 S.W.2d 579 (Tex.Civ.App.1979) writ ref’d n.r.e., 590 S.W.2d 708 (Tex.1979), the Supreme Court agreed that where a lessee of tools used these tools in providing services to its customers, its lease of the tools was not an exempt “sale for resale,” even though the lessee purported in turn to rent the tools to its customers, and charged them rent separately from the charge for the services. 584 S.W.2d at 579-80. The court of civil appeals held that “the arrangement between plaintiff and its customers was not a lease; plaintiff was simply providing a service to its customers and, incidentally, used equipment which it had leased from the owners of the tools.” Similarly, in our ease, we should not allow ETOC’s choice of the form of its arrangement with its customers regarding the cylinders to affect ETOC’s tax liability. We hold that ETOC’s purchase of the cylinders was subject to the art. 20.02 sales tax, and not exempt as a “sale for resale.”

ETOC vigorously argues the case of Schlusselberg v. Calvert, 443 S.W.2d 695 (Tex.1969), in support of its contentions. Schlusselberg does not control. In that case, a wholesaler sold goods to another for resale in Mexico. The Comptroller contended that this “sale for resale” should be taxed because other exemptions specifically applied to sales for resale outside the State, and should be deemed to state the only exemptions applicable to such transactions, and because the transaction in question did not come within their terms, they should not be held exempt under the general “sale for resale” exemption. The court did not agree that the other exemptions were the only exemptions applicable to such transactions. In fact, the court held the various exemptions “are clearly designed to deal with entirely different situations,” and therefore held that the “sale for resale” exemption could not be limited to exclude the transaction in question. The court did not hold that no specific exemption could limit the scope of the “sale for resale” exemption. Unlike Schlusselberg, in this case the sale of containers is clearly and specifically governed by art. 20.-04(E)(3)(a). The clear implication of its stated provisions is that the purchase of returnable containers by a seller for the delivery of goods therein to consumers of the goods, is subject to the sales tax. In Schlusselberg, the other exemptions did not clearly imply that the transaction was taxable notwithstanding the “sale for resale” exemption. This is sufficient to justify our holding limiting the literal scope of the “sales for resale” exemption. It is also important to note that at the time of the transactions involved in Schlusselberg, “sales at retail” subject to the sales tax were more narrowly defined than they are under the definition applicable to this case, excluding “sales for resale,” and that the definition of “sale for resale” was subsequently amended to exclude sales for resale outside the country. 1969 Tex. Gen. Laws, 2nd Called Sess., ch. 1, § 11, at 66.

Because the receipts of the sale of the cylinders to ETOC are subject to the art. 20.02 sales tax, ETOC was required to pay to its suppliers the sales tax in addition to and as part of the sales price. Art. 20.021(A) (§ 151.052). ETOC gave its suppliers “resale certificates.” Under art. 20.-021(1) (§ 151.154), if a purchaser who, after giving a resale certificate to the seller, makes any use of the property other than retention while holding it for sale, the use is taxable to the purchaser, with the tax being applied to the sales price. We will assume that even though ETOC should have paid the sales tax on the cylinders to its suppliers, under this section, after giving a resale certificate, ETOC is liable only for the use tax if it used the cylinders. We hold that ETOC used the cylinders by filling the cylinders with gas, and as a means of delivering gas to buyers. This holding is in accord with the evident intent of the legislature that the seller of goods pay a tax on the price of returnable containers purchased by it to contain goods to be sold to buyers, with the broad definition of “use” in art. 20.01(R) (§ 151.011), and with decisions of courts which have considered the question. District of Columbia v. Seven-Up Washington, 214 F.2d 197 (D.C.Cir.1954), cert. den. 347 U.S. 989, 74 S.Ct. 851, 98 L.Ed. 1123 (1954); Arkansas Beverage Co. v. Heath, 257 Ark. 991, 521 S.W.2d 835, 839-40 (1975); Pepsi-Cola, supra; Red Fox Gingerale, supra; Consumers Cooperative Association v. State Comm. of Revenue and Taxation, 174 Kan. 461, 256 P.2d 850, 855 (1953); Gay v. Canada Dry Bottling Co. of Florida, 59 So.2d 788, 790 (Fla.1952).

ETOC’s points of error are overruled and the judgment is affirmed.

      . All statute citations are to Tex.Tax.-Gen.Ann. (1969) and are followed by a citation in parentheses to the corresponding section of Tex.Tax Code (1982). The sales or uses taxed in this case occurred during the years 1970 through 1974, and the law in effect during that period determines whether or not ETOC is liable for taxes thereon.