text:
    Alan COHEN, Appellant, v. CLEAR LAKE CITY WATER AUTHORITY, et al., Appellee.
    No. C14-84-431CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.

      John D. Parker, Ross, Griggs & Harrison, Houston, for appellant.
    William E. Schweinle, Jr. and Mary Therese Ruffing, Leonard, Koehn & Hurt, Bellaire, for appellee.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

Appellant/Contestant brought suit in the form of an election contest against Appel-lees/Contestees, the Clear Lake City Water Authority (“Water Authority”) and its officers and directors, seeking to have declared null and void a bond election held on September 24, 1983. On September 24, 1983, the Water Authority held a bond election for the stated purpose of financing expansion of water and sewage facilities. On October 23, 1983, Appellant filed his Original Petition contesting the bond election, claiming certain irregularities took place throughout the election process which made it impossible to ascertain the true results of the election. In March 1984, Appellees filed their motion for summary judgment, contending that (1) the matters complained of by Appellant were not properly the subject of an election contest and (2) there was no genuine issue as to any material fact to be tried and Appellees were entitled to judgment as a. matter of law. In April 1984, Appellant filed a response and a cross-motion for summary judgment. After hearing both motions jointly, the trial court entered summary judgment in favor of Appellees. Appellant has duly perfected this appeal. We affirm.

Before addressing each of Appellant’s points of error individually, it is necessary for this Court to first determine whether the grounds contained in Appellant’s Notice of Intent to Contest Election are in fact within the scope of inquiry of an election contest. It is well settled in Texas that an election contest is a legislative proceeding and not an ordinary civil suit. De Shazo v. Webb, 131 Tex. 108, 113 S.W.2d 519 (1938); Gonzalez v. Rodriguez, 250 S.W.2d 253 (Tex.Civ.App. — San Antonio 1952, no writ). Therefore, a court’s jurisdiction in an election contest is limited to such subjects or grounds of contest as are expressly or impliedly authorized by the Election Code. Ortiz v. Thompson, 604 S.W.2d 443, 447 (Tex.Civ.App. — Waco 1980, no writ); Stelzer v. Huddleston, 526 S.W.2d 710, 714 (Tex.Civ.App — Tyler 1975, writ dism’d); Magnolia Petroleum Company v. Jackson County Water Control and Improvement District No. 1, 290 S.W.2d 310, 311-12 (Tex.Civ.App. — Galveston 1956, no writ).

TEX.ELEC.CODE ANN. art. 9.15 (Vernon 1967) provides:

If it appears on the trial of any contest ... that it is impossible to ascertain the true result of the election ..., either from the returns of the election or from any evidence within reach or from the returns considered in connection with other evidence ..., the court shall adjudge such election void....

Article 9.30 of the Texas Election Code extends the provisions of Article 9.15 to all contested elections.

While Appellee cites us to cases holding that an election contest pertains only to matters occurring on the day of the election, we believe the better rule is that an election contest is meant to include any type of suit in which the validity of an election or any part of the elective process is made the subject matter of the litigation. In Dickson v. Strickland, 114 Tex. 176, 265 S.W. 1012 (1924), the Texas Supreme Court addressed the question of what matters constitute an election contest, stating:

An election contest necessarily involves questions of both fact and law. It may be predicated upon a status or upon facts which existed before an election, upon what took place at the election, and perhaps in some instances upon a status or what took place after an election.

Id. at 1018. The court further stated that an election is “not a single event, but a process, and that the entire process is subject to contest.” A review of the cases reveals that this rule has been followed in other courts of this State. See Turner v. Lewie, 201 S.W.2d 86 (Tex.Civ.App. — Fort Worth 1947, writ dism’d); Rawson v. Brownsboro Independent School District, 263 S.W.2d 578 (Tex.Civ.App. — Dallas 1953, writ ref’d n.r.e.); Weinberg v. Molder, 312 S.W.2d 393 (Tex.Civ.App. — Waco 1958, writ ref d n.r.e.); Kennedy v. Burnet Independent School District, 474 S.W.2d 742 (Tex. Civ.App. — Austin 1971, no writ); Roberts v. Brownsboro Independent School District, 575 S.W.2d 371 (Tex.Civ.App. — Tyler 1978, writ dism’d). Having decided that this court has jurisdiction over matters occurring prior to election day which may have affected the election, we will now address Appellant’s points of error.

In his first point of error, Appellant contends the trial court erred in granting Appellees’ motion for summary judgment because Appellees used the election as a “subterfuge” for the enactment of zoning regulations. He argues that the disparity between the election notices published in two area newspapers, and the explanation of purpose and effect of the bond election contained in a newsletter mailed only to those registered voters in the Water Authority’s jurisdiction who actually received water and sewage bills, is such that subterfuge and/or fraud in the conduct of the election was established as a matter of law, or, at the least, a fact issue was created, precluding summary judgment for Appel-lees. Appellees contend that while Appellant’s pleadings contain allegations that the election was held as a subterfuge for zoning, the pleadings contain no reference to fraud, and Appellant’s attempt to use the two terms interchangeably on appeal is without merit. We do not feel it is necessary to determine whether the terms are synonymous. In either case, there is no evidence in the record to support Appellant’s allegations. In support of his contention, Appellant argues that excerpts from a deposition of the Water Authority’s general manager (which was taken during the course of pending litigation in federal court) and the newsletter published by the Water Authority prior to the election raise a fact issue of subterfuge and/or fraud in the conduct of the election. We disagree. While a more extensive discussion of the side results of the bond election, i.e. the 87.5%/12.5% ratio of single-family versus multi-family residences for sewage treatment capacity, is contained in the Water Authority’s newsletter, we do not believe the failure to include all of this information in the official notice of election is evidence of subterfuge or fraud. The notice of election contains at least three references to the fact that approximately 87.5 percent of the net residential acreage to be served by facilities constructed with the proceeds of the bonds would consist of single-family residences. Despite the fact that no reference is made in the notice to any “ulterior motive” by the Water Authority in establishing the allocation ratio, we are not persuaded that such omission would support Appellant’s contentions. See City of Roma v. Gonzalez, 397 S.W.2d 943, 946 (Tex.Civ. App. — San Antonio 1965, writ ref’d n.r.e.). We overrule point of error one.

In point of error two, Appellant contends the trial court erred in granting Appellees’ motion for summary judgment because, as a matter of law, there was inadequate notice of the election, or, in the alternative, there are material fact issues regarding the adequacy of the notice. We disagree. In a bond election, TEX.WATER CODE ANN. § 51.412 controls with regard to matters to be included in the notice of election. They are:

(1) maximum amount of bonds to be issued;
(2) proposed maximum interest rate;
(3) maximum maturity date;
(4) time and place for holding the election;
(5) a substantial statement of the proposition;
(6) a summary of the engineer’s estimate of the cost of the proposed improvements; and
(7) a statement of any estimate or estimates made by the board in its order calling the election.

The character, features, and purposes of the proposed bond election should be set out in sufficient detail in the proposition in order to familiarize voters with the proposal. Moore v. City of Corpus Christi, 542 S.W.2d 720, 723 (Tex.Civ.App. — Corpus Christi 1976, writ ref’d n.r.e.). The standard of review for official election notices is substantial compliance with the law requiring the notice. Greater Beauxart Garden Municipal Utility District v. Cormier, 596 S.W.2d 597, 601 (Tex.Civ.App.— Beaumont 1980, no writ); Christy v. Williams, 292 S.W.2d 348, 350 (Tex.Civ.App.— Galveston 1956, writ dism’d w.o.j.). In our opinion, Appellees have substantially complied with § 51.412 of the Water Code. However, even were we to support Appellant’s contention that the notice requirements of both Sections 51.222 and 51.412 must be complied with when a water authority conducts a bond election, our position would remain unchanged. Section 51.-222 of the Water Code requires that the purpose of the election be set forth in the election notice. The official notice of the bond election in issue states that the bonds were to be issued “for the purpose of the purchase, acquisition and construction of works, improvements, facilities, plants, equipment, and appliances for the Authority’s waterworks, sewer and drainage systems and additions, extensions and improvements .... ” We believe this to be a sufficient statement of the purpose of the election, pursuant to Section 51.222. We overrule point of error two.

In points of error three and four, Appellant contends the trial court erred in granting Appellees’ motion for summary judgment because one effect of the election was to enact zoning which was outside the Water Authority’s scope of authority. Appellant is correct in stating that the allocation ratio for sewage facilities set out in the election notice would be unenforceable and subject to injunction upon any attempt to use bond funds to impose such a ratio. That issue will be resolved when and if Appellee attempts to enforce a zoning restriction. It is undisputed that zoning is an ultra vires function for a water control and improvement district. See Tri-City Fresh Water Supply Dist. No. 2 of Harris County v. Mann, 135 Tex. 280, 142 S.W.2d 945 (1940); TEX.REV.CIV.STAT.ANN. art. 1011a (Vernon Supp.1984); TEX.WATER CODE ANN. § 51.122 (Vernon 1972). However, the 87.5%/12.5% sewage allocation ratio is only a resulting part of the overall bond issue. The principal purpose set out in the bond proposal, i.e. to purchase, acquire and construct “works, improvements, facilities, plants, equipment, and appliances for the Authority’s waterworks, sewer and drainage systems and additions,” is, in fact, a lawful purpose. As a result, we are unable to support Appellant’s contention that the election must be voided. See Nalle v. City of Austin, 85 Tex. 520, 22 S.W. 668 (1893); City of Roma v. Gonzalez, 397 S.W.2d at 945. We overrule Appellant’s third and fourth points of error.

In his fifth point of error, Appellant contends the trial court erred in refusing to admit into evidence: (1) excerpts from the deposition of Frank Burnett, general Manager of the Water Authority and (2) the Water Authority’s newsletter pertaining to the election at issue. Whether or not these exhibits should have been admitted into evidence is a matter we need not decide. After a careful review of the deposition excerpts and newsletter, we find nothing contained therein which, by its omission, caused the rendition of an improper judgment. TEX.R.CIY.P. 434. We overrule point of error five.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: J. CURTISS BROWN, Chief Justice.

license: Public Domain

text:
    Marjorie Grissom BAUER, Appellant, v. ESTATE OF Roger B. BAUER, Deceased, Appellee.
    No. A14-84-438CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.
    Rehearing Denied Feb. 28, 1985.
    Jim D. Wiginton, Angleton, for appellant.
    Craig W. Hathway, Wommack, Denman & Mauro, Lake Jackson, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

This is an appeal from the trial court’s refusal to give a jury instruction on insane delusion in a will contest. Roger Bauer, thirty-one years old and on the verge of economic success, was visiting his mother, the appellant in this case, in Green Valley, Arizona during the Christmas holidays of 1983. On December 30 he wrote a holographic will in the form of a letter to his girlfriend, Lai Lee. A few minutes later he committed suicide.

The letter contains the following statement:

“My primary reason for doing this a near complete lack of family love. It is something that will always be missing from my life. I will never be able to compensate for it no matter what.”

In later paragraphs Roger calls upon Lai to take certain actions with regard to his burial, his car, his debts, his investment properties, and the gun with which he shot himself. Among the debts he ask her to pay out of his holdings is one of $5000 to his mother (the appellant). He suggests that this money can be used to pay for an eye operation for his sister Linda which would make contacts or glasses unnecessary. The last sentence of the letter states simply, “I will everything I own to Lai W. Lee.”

The appellant/contestant claims in her sole ground of error that Roger’s belief that he had “a near complete lack of family love” was not only false or unfounded, but amounted to an insane delusion. In support of her claim she points to proof at trial that Roger suffered from “intermittent explosive disorder,” a psychological disorder. According to the expert testimony, the intermittent explosive disorder caused the several instances of violent behavior he displayed toward his mother, sister and father over a period of years. It does not cause hallucinations, but instead can cause one to build up in his mind an interpretation of a relationship with another, or of something said by that person, which could be so totally unfounded as to amount to a delusion. We affirm.

We agree with appellant that if the issue of an insane delusion is raised, and the trial court submits nothing more than the general issue of testamentary capacity, such action is reversible error. See Goans v. Green, 464 S.W.2d 104 (Tex.1970). However, it is also true that a failure to submit a jury issue is reversible only if the complaining party offered the missing special issue in substantially correct form. TEX.R.CIV.P. 279.

At the conclusion of the evidence, appellant requested the following instruction:

“You are instructed that an insane delusion as respects testamentary capacity is a belief in a state of circumstances that no rational person would accept as true. “You are further instructed that when testator’s false belief amounts in law to insane delusions in terms of his will or influence thereby, testamentary capacity is lacking even though testator might know the nature and extent of his property, effect of his will, and the natural objects of his bounty and might be able to handle complex business matters” (Emphasis added).

An insane delusion has been defined in Texas as “the belief of a state of supposed facts that do not exist, and which no rational person would believe. The contestant of a will is entitled to an instruction on insane delusion if there is any evidence of probative force which, with the inferences that may reasonably be drawn therefrom, will support a finding that the testator was laboring under such a delusion which affected the terms of his will. Lindley v. Lindley, 384 S.W.2d 676, 679 (Tex.1964) (emphasis added).

We do not believe that appellant’s issue was submitted in substantially correct form. The question is anything but trivial. The general rule is that where insanity is not shown, but only some insane delusion or monomania, the will is valid unless the terms of it appear to have been directly influenced by the infirmity. Gulf Oil Corp. v. Walker, 288 S.W.2d 173, 180 (Tex.Civ.App. — Beaumont 1956, no writ). The Gulf Oil case further elaborates the test to be followed in setting aside a will:

“A man may believe himself to be the supreme ruler of the universe and nevertheless make a perfectly sensible disposition of his property, and the courts will sustain it when it appears that his mania did not dictate its provisions. Id. at 180.

See also Rich v. Rich, 615 S.W.2d 795, 798 (Tex.Civ.App. — Houston [1st Dist.] 1981, no writ).

Nowhere in the record of this case does the testimony suggest that Roger would have made a different disposition of his property if he had not suffered from the intermittent explosive disorder. He and Lai had maintained a close relationship for six years before his death. They lived together for several years. She worked alongside him making repairs on his rental properties. When his father died he substituted Lai for his father as the primary beneficiary of his life insurance policy, listing her in his application as his “fiancee.” He told his colleagues at work that Lai was his common-law wife. He also made a specific disposition of money to his mother in his will. In view of these facts, the jury was entitled to an issue which would present an either/or choice whether Roger’s delusion in any way “affected the terms of his will,” Lindley v. Lindley, supra, or “dictated its provisions,” Gulf Oil v. Walker, supra. “Insane delusions in terms of his will or influence thereby,” the “test” offered by appellant, masks the issue to be decided behind a flaccid and uncertain phrase which fails to state a proposition.

We believe, moreover, that even if appellant had submitted a proper instruction, this case does not present the kind of false belief which amounts to an insane delusion as that term is defined in law. No mere mistake, or prejudice or ill-founded conclusion, can ever be the basis of setting aside a will. Navarro v. Rodriquez, 235 S.W.2d 665, 667 (Tex.Civ.App. — San Antonio 1950, no writ). A finding of insane delusion is conditioned on the testator’s belief in a state of supposed facts; the existence or non-existence of “family love” is a comparatively subjective phenomenon not well suited to proof within our legal system.

Appellant and Linda Bauer (Roger’s sister) claim that they loved Roger. Appellant testified that she made sacrifices over the years in his behalf. We do not doubt the sincerity of these statements. Yet we must ask: where, from Roger’s point of view, could family love have existed except in his mind? Thus if, as he reported in his will and many times before to friends, he did not feel it, if it did not express itself in him, how can we then say that he possessed it?

A distinction between facts and ideas, then, while too rough to serve as a general rule, is the proper guide to the disposition of this case. BLACK’S LAW DICTIONARY 531-2 (5th ed. 1979) defines “fact” as “[a] thing done; an action performed or an incident transpiring; an event or circumstance; an actual occurence.” We think that the tenor of this definition and of existing Texas precedents excludes the idea of “family love” from consideration as the basis of an insane delusion. Perhaps the classic Texas case on insane delusion is Rodgers v. Fleming, 3 S.W.2d 77 (Tex.Comm.App.1928, holding adopted). In Rodgers the testator believed that his nephew was going to kill him for his property. The testator had taken up carrying a pistol as a consequence of his belief. He also believed that astronomers were on the verge of discovering the location of the gates of heaven.

The false beliefs in Rodgers, then, concerned the nephew’s intent to commit a specific act and the capacity of University of Texas astronomers to locate a specific place, heaven; in other words, to perform a specific action, to cause an actual occurrence. Thus precedent only exists for declaring as an insane delusion a belief which can be judged true or false by reference to the physical world or to the realm of specific acts and intentions.

In keeping with the spirit of Rodgers is Green v. Goans, 458 S.W.2d 705 (Tex.Civ.App. — El Paso, writ ref d n.r.e. 464 S.W.2d 104 (Tex.1970). The testator in Green who had moved in to a room adjoining the house of his close friends, suddenly developed the belief that these friends were trying to kill him. Similarly, in Lindley v. Lindley, 384 S.W.2d 676 (Tex.1964), the testatrix’s son had suffered a complete mental breakdown. He was taken to a hospital where it became necessary to tie him to his bed. The testatrix, who was 93 years old, saw this happen, and when the son died shortly thereafter, she developed the notion that the hospital and her two other children had caused the son’s death and adjusted her will accordingly. The court in Lindley held that appellant was, under those facts, entitled to an instruction on insane delusion. In Spruance v. Northway, 601 S.W.2d 153 (Tex.Civ.App. — Waco 1980, writ ref’d n.r.e.), also cited by appellant, the testatrix believed that the appellee had put her in the hospital and was trying to get her property.

Unlike the insane delusions in the above cases, the term “family love” refers to an intangible sensation, an idea; it is a feeling which cannot exist independently of a positive belief in its existence. It is somewhat analogous to a gift under the law of property, which cannot be transferred — and thus cannot be a gift — unless it is actually received or delivered. A better analogy, perhaps, is provided by the law of libel, which distinguishes between facts and opinions. Facts, which can be proved true or false, are actionable; on the other hand, there is no such thing as a false idea. A.H. Belo Corp. v. Rayzor, 644 S.W.2d 71, 79 (Tex.App. — Fort Worth 1982, writ ref’d n.r.e.). In sum, a belief in a “near complete lack of family love” simply does not fall within that class of beliefs about which a judgment as to insane delusion can reasonably be made. Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.


author: CANNON, Justice.

text:
    George Vincent STANLEY, Appellant, v. STATE of Texas, Appellee.
    No. A14-84-522CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Jan. 31, 1985.
    Rehearing Denied March 21, 1985.
    Mike Hernandez, Houston, for appellant.
    Timothy Taft, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and ELLIS, JJ.
   OPINION

CANNON, Justice.

This is an appeal from an order in which the juvenile court waived exclusive jurisdiction and transferred the appellant to criminal district court for trial as an adult on two of three counts of aggravated robbery. We find that the juvenile court erred in transferring appellant to criminal district court, and vacate and remand.

The record reflects that on March 15, 1984, the district attorney filed a petition and motion alleging the appellant committed three separate counts of aggravated robbery and requesting the court to waive its exclusive jurisdiction and transfer appellant to criminal district court for trial as an adult. The court appointed counsel to represent the appellant and ordered a certification hearing after the completion of a diagnostic study, social evaluation and full investigation of appellant. After the hearing on June 5, 1984, the court granted the state’s motion as to counts two and three, thus waiving jurisdiction and transferring appellant to criminal district court, but retained jurisdiction as to count one because the state did not present evidence on that count.

In a single point of error the appellant asserts the trial court erred in waiving jurisdiction and transferring him to criminal district court in violation of TEX.FAM. CODE ANN. § 54.02(g) (Vernon 1975). This section states that “If the juvenile court retains jurisdiction, the child is not subject to criminal prosecution at any time for any offense alleged in the petition ...” Section 54.02(h) states that “If the juvenile court waives jurisdiction, it shall ... transfer the child to the appropriate court for criminal proceedings.” The appellant contends that a literal reading of § 54.02(g) requires the juvenile court to retain jurisdiction over all three counts once it retains jurisdiction as to count one, thus shielding the appellant from criminal prosecution as an adult on any of the three counts.

The question presented is apparently one of first impression: May the juvenile court retain its jurisdiction over the child as to one of the offenses alleged in the certification petition while waiving jurisdiction with regard to the other alleged offenses?

While both the appellant and state make persuasive arguments, we are convinced the statute’s language is clear and unambiguous and as such does not require an examination of legislative intent. We hold that once the juvenile court retains jurisdiction as to any count alleged in the certification petition, the child’s status is fixed as to all offenses alleged in the petition and thus the child is not subject to criminal prosecution as an adult for any offense alleged in the petition.

The appellant’s point of error is sustained. The order of the juvenile court is vacated and this cause remanded for further proceedings.


text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Victoria VLACH, Ind. & a/n/f of Victoria Ann Vlach, et al., Appellees.
    No. A14-84-396CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 7, 1985.
    Rehearing Denied March 14, 1985.

      Gordon A. Holloway, Sewell & Riggs, Houston, for appellant.
    William Mac Gann, Gann, Fried & Edwards, Travis Johnson, Robert D. Roll, Martin & Sperry, Houston, for appellees.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

J. CURTISS BROWN, Chief Justice.

Appellees, the wife and six children of the deceased Terence Paul Vlach, brought suit under the Wrongful Death Statute, TEX.REV.CIV.STAT.ANN. art. 4671 (Vernon Supp.1984) and the Survival Statute, TEX.REV.CIV.STAT.ANN. art. 5525 (Vernon 1958) against Missouri Pacific Railroad Co., appellant.

On December 6, 1977, appellant’s train struck Terence Vlach when he drove his truck into the crossing. He was hospitalized until he died on January 9, 1978. The jury found that the negligence of both appellant and Terence Vlach proximately caused Vlach’s death. The jury attributed 50% negligence to each. The trial court granted to each appellee 50% of the damages found by the jury for:

1) care, maintenance, support, services and contributions of pecuniary value that appellee would in reasonable probability have received from Terence Paul Vlach during his lifetime had he lived.
2) loss of love, advice, comfort, companionship and society that appellee has suffered since the death of Terence Paul Vlach, and which appellee will, in all reasonable probability suffer in the future.
3)grief, sorrow, emotional trauma and mental anguish which appellee has suffered in the past, as a proximate result of the death of Terence Paul Vlach and which appellee will, in all reasonable probability, suffer in the future.

The spouse was awarded 50% of the damages (in lieu of the second category stated above) for the:

loss of love, affection, solace, comfort, companionship, society, assistance and sexual relations that she has suffered since the death of her husband and which she will, in all reasonable probability, suffer in the future.

The trial court also awarded $10,000 for the conscious pain and mental anguish suffered by the deceased.

Appellant raises issues concerning: 1) the nature of damages which may be recovered by the spouse and children of the deceased under the Wrongful Death Act; 2) the kind of evidence required to recover damages for mental anguish under the Act; 3) whether prior consistent statements of witnesses were properly excluded by the trial court because the witnesses were unavailable for cross-examination. TEX.R. EVID. 801(e)(1)(B); 4) whether the evidence is sufficient to support the jury’s finding that Mr. Vlach suffered conscious physical pain and mental anguish before his death; and 5) whether the trial court erred in submitting the issue of negligence broadly because of a variance between the pleadings and evidence. TEX.R.CIV.P. 277. We find no error and accordingly affirm the judgment of the trial court.

Appellant contends in its second, fourth, fifth, and sixth points of error that the trial court erred in awarding appellees non-pecuniary damages. In Sanchez v. Schindler, 651 S.W.2d 249 (Tex.1983) the Supreme Court held that the plaintiff may recover damages for loss of society and companionship and for mental anguish for the death of his or her minor child. Appellant asserts that the Supreme Court purposely limited the kind of non-pecuniary damages that can be recovered under the statute and held that only one class of beneficiaries could recover such damages.

For the reasons stated in Cavnar v. Quality Parking Control, Inc., 678 S.W.2d 548 (Tex.App.—Houston [14th Dist.] 1984, writ granted), we disagree. We concluded in Cavnar that every class of beneficiary under the statute can recover for emotional injury. We held that the trial court erred by refusing to grant the adult children of the deceased damages for loss of society and companionship.

We further conclude that the Supreme Court also intended to allow recovery by a spouse for the loss of consortium as established in Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978). This intention is evidenced by the court’s use of loss of consortium as an analogy in Sanchez, 651 S.W.2d at 252, to establish the parent’s right to damages for the loss of companionship of a child. The correctness of our interpretation is supported by Missouri Pacific Railroad Co. v. Dawson, 662 S.W.2d 740 (Tex.App.— Corpus Christi 1983, writ ref’d n.r.e.) wherein this element of damages was allowed.

All the damages awarded appellees are recoverable under the Wrongful Death Statute and points of error two, four, five, and six are overruled.

Appellant contends in its third point of error that the trial court erred in submitting special issues on mental anguish because there is no evidence to support their submission. Appellant failed to brief and argue this point. It is well settled that points of error are required to be supported by argument and authority under Rule 418(e) of the Texas Rules of Civil Procedure, and if not supported, the points are waived. Ozuna v. Dyer Fruit Box Manufacturing Co., 606 S.W.2d 334, 337 (Tex.Civ.App.—Tyler 1980, no writ); Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358, 360 (1944).

Appellant contends in its seventh point of error that the trial court erred in including damages for loss of advice as part of the recovery for loss of society and companionship damages. Appellant contends that loss of advice has historically been classified as one of the elements of pecuniary damages. Lee v. Andrews, 545 S.W.2d 238 (Tex.Civ.App.—Amarillo 1976, writ dism’d); J.A. Robinson Sons, Inc. v. Ellis, 412 S.W.2d 728 (Tex.Civ.App.—Amarillo 1967, writ ref’d n.r.e.). Thus, to permit recovery of loss of advice as an element of loss of society and companionship damages would result in a double recovery.

The pecuniary loss issues submitted to the jury did not include loss of advice as an element. Loss of advice was referred to only in the damage issues concerning loss of society and companionship. Thus, there was no danger of double recovery. Point of error seven is overruled.

Appellant contends in its first point that the trial court erred in awarding appel-lees damages for mental anguish because there is no proof of accompanying physical injury. Appellant argues that while Sanchez allowed a mother to recover mental anguish damages for the death of her child, it did not abrogate requirement of accompanying physical injury. We disagree. We do not find in that case a requirement that proof of such physical manifestations should be a necessary predicate for recovery for mental anguish. Appellant’s first point of error is overruled.

Appellant contends in its eighth point of error that the trial court erred in refusing to admit into evidence the prior consistent statements of certain witnesses. A railroad signal crew was working at the scene of the accident. Their testimony was favorable to appellant’s defense. Appellant alleged that appellees’ attorney charged the signal crew with discussing their evidence together in a meeting before trial and argued that their testimony was orchestrated by appellant. Appellant offered the prior consistent statements of these witnesses to rebut the charges of recent fabrication. The exception to the hearsay rule relied upon by appellant is Rule 801(e)(1)(B) of the Texas Rules of Evidence which states:

A statement is not hearsay if ... The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive ... (Emphasis added.)

The trial court denied admission of the statements. This action was correct because the statements were not offered until after the witnesses had been excused from the courtroom. If the statements were admitted, appellee would not have had an opportunity to cross-examine the witnesses •concerning the statements as required by Rule 801(e)(1). The trial court acted within its discretion in excluding these prior statements under the circumstances. Point of error eight is overruled.

Appellant contends in its ninth point of error that the trial court erred in refusing to admit evidence that Mrs. Valch was receiving $100 a month from her husband’s former employer under an annuitant pension. Appellant offered this evidence to rebut testimony which allegedly stated that appellees lost the vested retirement fund of Mr. Vlach. Appellant has misinterpreted this testimony. Its import is that appellees have been deprived of the retirement benefits which would have accrued to Vlach had he lived and continued to work for the telephone company. Thus, appellant’s evidence of receipt of accrued benefits was not relevant and properly excluded by the trial court under the collateral source rule. Point of error nine is overruled.

Appellant contends in its tenth and eleventh points of error that the jury’s finding that the deceased experienced $10,-000 in damages for conscious pain and mental anguish before his death is not supported by any evidence or in the alternative, was against the great weight and preponderance of the evidence. A review of the record shows that there is ample evidence to support the jury’s finding. The nurses’s notes made during the month he was hospitalized contain numerous descriptions of Vlach’s reactions to painful stimuli and his communication through body movements upon command. Mrs. Vlach testified that she worked out communication with him through body movements in response to questions. He would squeeze her hand when she asked him if he hurt in particular areas of his body. The only contrary evidence to the jury’s finding was the testimony of Dr. Armstrong that Vlach did not reach a level of consciousness that would allow him to suffer mental anguish. We defer to the finding of the jury. It is the province of the jury to judge the credibility and weight to be given the testimony and to resolve conflicts in the testimony of the witnesses. Precision Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex.App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). The evidence supporting the jury’s finding is both legally and factually sufficient. Points of error ten and eleven are overruled.

Appellant argues under points of error twelve through twenty-two that the trial court erred in submitting the issue of appellant’s negligence broadly or in failing to give a limiting instruction because there existed a material variance between the pleadings and the evidence on this issue. Appellee offered evidence that appellant did not notify the train crew through the train orders issued to them that a signal crew would be working at the crossing on the day of the accident. Appellant asserts that this testimony established a basis on which appellant could have been found negligent and that because this theory was not pled there exists a variance between appellant’s pleadings and proof which requires reversal under Scott v. Atchison, Topeka & Santa Fe Railway Co., 572 S.W.2d 273, 277 (Tex.1978).

This testimony did not create a variance. Such background testimony does not constitute an independent ultimate ground of recovery upon which a judgment based upon findings of negligence and proximate cause could have been rendered. It constitutes mere circumstances and a condition fleshing out the allegations of negligence supported by the pleadings and the evidence. In any event such variance, if any existed, would be harmless error. Brown v. American Transfer & Storage Company, 601 S.W.2d 931, 937 (Tex.1980); Stone v. Lawyers Title Insurance Corp., 554 S.W.2d 183 (Tex.1977). Appellant’s points of error twelve through twenty-two are overruled.

Having overruled all points of error, we accordingly affirm the trial court’s judgment.


text:
    HARRIS COUNTY, Texas, Appellant, v. Marian Fleming COMSTOCK, et al, Appellee.
    No. B14-84-508CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 7, 1985.
    Rehearing Denied March 14, 1985.
    William R. Crawford, Houston, for appellant.
    Michael K. Swan, Houston, for appellees.
    Before PAUL PRESSLER, CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

Appellant, Harris County, brings this appeal to challenge an order of the trial court granting appellee’s bill of review in a condemnation proceeding. Appellant additionally raises several points of error which concern the subsequent trial. We find the trial court erroneously granted appellee’s bill of review; therefore we reverse and render.

On January 19, 1982, appellant initiated condemnation proceedings in the county court against certain property owned by appellee, Marian Fleming Comstock. The court appointed special commissioners who proceeded to conduct a hearing in April of 1982. An award of $186,971.00 was filed with the court. However, due to faulty service, appellee did not receive notice of the hearing and failed to appear. When the county attempted to take possession of the property, she filed for injunctive relief in district court. A Temporary Restraining Order was issued, followed by an Agreed Injunction, which voided all prior proceedings and ordered the commissioners to conduct a second hearing on July 20 to assess appellee’s damages. Ms. Fleming and her attorney were present at the second hearing.

The commissioners filed their second award, pursuant to the July 20 hearing, on July 22, 1982. This award was in the amount of $208,531.00. Appellee failed to file any objections to the award within the period mandated by statute. She instead waited until September 2, 1982, to file her objections. Harris County moved for entry of judgment on the award, which the court granted due to the absence of timely objections. Appellee then filed for a bill of review, which the trial court granted over objection from appellant. The cause was set for trial and at the trial, Harris County renewed its objection to the bill and resulting trial. The jury reached an award of $308,655.00. This appeal followed.

Appellant contends in its first point of error that the trial court improperly granted appellee’s bill of review and that the judgment entered on the award should not have been set aside. Two grounds were offered by appellee to support the bill of review. First, she claimed she had not received prompt notification of the filing of the award, and second, appellee alleged that the entry of the judgment was induced by fraud. We must examine each ground to determine if the trial court acted prudently in granting appellee’s bill.

The eminent domain statutes which were in effect at the time of the award did not require notice to be served upon the landowner when the commissioners filed the award. TEX.REV.CIY.STAT.ANN. arts. 3264, 3265 (Vernon 1968) (repealed 1983). Once the property owner received notification of the hearing to assess damages, he assumed the responsibility of keeping himself abreast of all subsequent actions occurring in the condemnation proceeding. Dickey v. City of Houston, 501 S.W.2d 293 (Tex.1973). Accordingly, lack of notice of the filing of an award will not suffice as grounds for a bill of review.

The second ground appellee raised to support her bill of review was that the entry of the judgment was induced by fraud. The party who moves for a bill of review in a condemnation case must establish that fraud, accident or mistake was involved in the rendition of the judgment. Dickey, 501 S.W.2d at 294; O’Bryan v. County of Harris, 583 S.W.2d 896 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.). The movant must demonstrate that the fraudulent behavior acted to deprive movant from knowing his rights or presenting them at trial. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950); See Swaim v. Texas Electric Service Company, 590 S.W.2d 788 (Tex.Civ.App.—Fort Worth 1979, writ ref’d n.r. e.). In Swaim, the landowners moved for a bill of review complaining that their failure to file timely objections to the award was due to certain false statements made by an employee of Texas Electric Service Company. They alleged the employee had stated the condemned property would not be fenced, when in fact the award expressly permitted such enclosure of the property. The court found these representations to be insufficient to support a bill of review. We find that holding to be controlling of the facts presented in this appeal.

A thorough examination of the evidence offered by appellee at the bill of review hearing reveals appellee wholly failed to establish the existence of fraud to the degree necessary to warrant a bill of review. The only evidence appellee offered on the issue of fraud was testimony of her attorney that certain parties had indicated the matter could be expedited. No evidence was offered as to the identity of the speaker or his intent in making the statement. Further, appellee failed to explain how this statement would prevent her from filing a timely objection to the award. See Swaim, 590 S.W.2d at 789. To the contrary, such a statement would more reasonably indicate the need to file objections well in advance of the normal deadline, not later.

A review of the record reveals no evidence that would entitle appellee to relief by means of a Bill of Review. We sustain appellant’s first point of error and reverse and render that the judgment entered on September 23,1982, in the amount of $208,-531.00 be reinstated. Our disposition of this point eliminates the need to consider appellant’s remaining points.

      . Eminent Domain statutes are now located at Tex.Prop.Code Ann. ch. 21 (Vernon 1984). The cited provision remains unchanged in the new Code.


author: DRAUGHN, Justice.

text:
    In the Matter of Jerry RODRIGUEZ.
    No. B14-84-541CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 7, 1985.
    Lloyd D. Stansberry, Brown, Todd, Ha-good & Davenport, Alvin, for appellant.
    Julian W. Taylor, III, Jim Turner, Asst. Dist. Attys., Angleton, for appellee.
    Before PRESSLER, MURPHY and DRAUGHN, JJ.
   OPINION

DRAUGHN, Justice.

This is an appeal, in a juvenile case, from an Order Modifying Disposition. Under the order, Jerry R. Rodriguez was committed to the Texas Youth Commission. Rodriguez, in four points of error, argues that the trial court abused its discretion in modifying its prior disposition order. We affirm.

On January 20, 1984, Rodriguez was adjudicated a juvenile delinquent for making bomb threats to Alvin Junior High School. The trial court ordered that he be placed on probation for a period of twelve months. A list of conditions of probation was attached to the Order of Disposition. One of the conditions, entitled “Curfew,” provided:

I will be home at 1818 W. Phillips between 7:00 p.m., and 7:00 a.m., Sunday through Thursday and between 10:00 p.m., and 7:00 a.m., on Friday or Saturday. (There shall be no exception to this condition unless obtained in advance and in writing from my probation officer, unless I am with my relative or guardian.)

The conditions were signed by Rodriguez.

A petition was filed to revoke the probation. One of the grounds listed in support of the application to revoke probation was that on June 28, 1984, Rodriguez had violated his curfew. After a hearing on the matter, the trial court found that the curfew had been violated. The trial judge ordered that he be “committed to the Texas Youth Commission until his 18th birthday.”

The first point of error is that “the trial court abused its discretion in modifying its prior disposition order because the evidence was legally insufficient to show that the Appellant had violated the curfew condition of his probation.” Rodriguez contends that the only evidence on whether the curfew was violated was hearsay testimony which will not support the modifying of the disposition order.

The only testimony of the alleged curfew violation was supplied by Officer Jim Truelove of the Alvin Police Department. Truelove testified that he saw Rodriguez on June 28, 1984, at 11:04 p.m., outside Captain B’s Gameroom, an establishment in Alvin. On cross-examination, Truelove explained that the time of 11:04 p.m. was determined from the log records at the Alvin Police Department and that he did not look at his watch to determine what time it was. Rodriguez's counsel moved to have the testimony struck because it was based on hearsay. The motion was overruled.

Even if we assume that the objected to testimony was hearsay, an issue we do not decide, we cannot agree that there is no evidence in the record showing that Rodriguez violated his curfew. An attack on the legal sufficiency of the evidence requires this court to consider only the evidence and inferences from the evidence which tend to support the judgment of the trial court and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Coffee v. City of Alvin, 641 S.W.2d 597 (Tex.App.—Houston [14th Dist.] 1982, writ ref'd n.r.e.).

On redirect examination, Truelove testified that on the night in question he was on duty from 6:00 p.m. until 2:00 a.m., and that when he arrived at Captain B’s gameroom it was dark. Truelove testified that he left that area at approximately 11:30 p.m. and that time was not based upon his calling or checking the dispatcher’s log. Truelove’s testimony and the inferences from such testimony support the conclusion that Rodriguez violated his curfew. Point of error one is overruled.

Point of error two is that modification of the disposition order was an abuse of discretion because the alleged curfew violation was not a violation of a reasonable order of the court. The disposition of a delinquent child may be modified so as to commit the child to the Texas Youth Commission if the child has violated a reasonable and lawful order of the court. In re D.E.P., 512 S.W.2d 789 (Tex.Civ.App.—Houston [14th Dist.] 1974, no writ); TEX. FAM.CODE ANN. § 54.05(f) (Vernon Supp.1985). The conditions which caused the violations in the D.E.P. case were out of the control of the child involved. The basis of this court’s decision in In re D.E.P. was that these uncontrollable circumstances made the order of the court unreasonable, not that a curfew is an unreasonable condition. In re D.E.P., 512 S.W.2d at 792. Given the facts in this case, the trial court’s order conditioning the child’s probation on his following the curfew was a reasonable order of the court. Point of error two is overruled.

The third point of error is that the modification of the disposition order was an abuse of discretion because “there was no evidence that the Appellant had not received permission from his probation officer to be out after curfew hours, and there is no evidence that the Appellant was not with a relative or guardian.”

Even if we accept the premise that the State had to disprove the exceptions to the curfew condition, there is some evidence that Rodriguez did not have permission and was not with a relative or guardian. The probation officer recommended that Rodriguez be committed to the Texas Youth Commission for the curfew violation. A logical inference from that fact is that the probation officer did not authorize, in writing, the curfew violation. Officer Truelove testified that he observed only one person outside the gameroom. That person was Rodriguez. We cannot say there was no evidence refuting the two exceptions of the curfew. Point of error three is overruled.

The fourth point of error is that the order committing Rodriguez to the Texas Youth Commission until his eighteenth birthday was erroneous because it constituted an invasion of the discretion of the commission. In support of this point Rodriguez cites In re A.N.M., 542 S.W.2d 916 (Tex.Civ.App.—Dallas 1976, no writ). In that case, the Dallas court found that once a court commits a child to the Texas Youth Commission, discretion as to further disposition is vested in the commission, and the court cannot invade this discretion by committing the juvenile for a definite period of time. In re A.N.M., 542 S.W.2d at 921.

This court has been informed by letter that Rodriguez has been released from the custody of the Texas Youth Commission. Since he has already been released, this point of error fails to show that the trial court’s error, if any, was harmful. TEX.R. CIV.P. 434. Point of error four is overruled.

The judgment is affirmed.


author: GUILLOT, Justice.

text:
    Alvis THOMAS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00096-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 8, 1985.

      Walter W. Steele, Jr., Dallas, for appellant.
    Gilbert P. Howard, Asst. Dist. Atty., Dallas, for appellee.
    Before SPARLING, GUILLOT and DE-VANY, JJ.
   GUILLOT, Justice.

Appellant was convicted in a bench trial of operating a motor vehicle while his driver’s license was suspended. On appeal, appellant complains that the information was fatally defective and that the trial court erred in finding that appellant’s license was suspended under the statute alleged on the date of appellant’s arrest. For the reasons set forth below, we affirm the judgment.

In his first ground of error, appellant contends that the information was fatally defective because it alleged the wrong statute. The information alleged:

[0]n or about the 24th day of March A.D., 1982, in the County of Dallas and State of Texas, did unlawfully, knowingly and intentionally drive and operate a motor vehicle on a public street and highway there situated when his Texas operators license was then and there suspended, said suspension having been theretofore ordered and effected by the Texas Department of Public Safety, under the authority and provisions of Art 6687b, Sec 24(a)(2) Vernon’s Annotated Texas Civil Statutes.

Appellant contends that, instead, his license was suspended under TEX.REV.CIV.STAT. ANN. article 6701h, § 7(3) (Vernon 1977).

State’s Exhibit Number One shows appellant’s driving record. In fact, appellant’s license was suspended on June 19, 1979, under article 6701h, section 7(3), and said suspension was continued on March 9, 1981, under article 6701h, sections 17(a) and 29(1). However, appellant also had three driving while intoxicated arrests yielding three automatic drivers license suspensions under TEX.REV.CIV.STAT. ANN. art. 6687b (Vernon 1977). Hence, if any of the driving while intoxicated suspensions were still in effect, then the State was not wrong in alleging article 6687b.

Thus, the real question in this case, raised in appellant’s second ground of error, is whether the trial court erred in finding that appellant’s license was suspended under article 6687b on the date of this alleged offense, March 24, 1982. We think not. Article 6687b, section 24(b) provides in pertinent part:

[T]he suspension ... shall in the first instance be for a period of twelve (12) months. In the event any license shall be suspended under the provision of this Section for a subsequent time, said subsequent suspension shall be for a period of eighteen (18) months.

Article 6687b, section 24(b) (emphasis added).

Appellant asserts a two part argument. First, he argues that because his three driving while intoxicated convictions were all entered, March 9, 1981, the resulting suspensions were not “subsequent.” Therefore, he contends that each was for a period of twelve months, none for eighteen months, and when he was arrested on March 24, 1982, the twelve months had expired. He arrives at the first conclusion by analogizing driving while intoxicated to enhancing punishment under the Penal Code. For enhancement, the convictions must be “for an offense that occurred subsequent to the first previous conviction having become final.” TEX.PENAL CODE ANN. § 12.42(d) (Vernon 1974 & Vernon Supp.1984).

The record, in this case, does not disclose how the convictions for the three driving while intoxicated offenses were entered, except that they were entered on the same day. It does, however, reflect that each was a separate conviction for a separate offense, and that the eighteen month suspensions were for the second and third convictions, both of which were for offenses committed subsequent to the first offense. The enhancement statute specifically provides that the second offense must have occurred after the first conviction. In contrast, article 6687b, section 24(b) provides for an eighteen month suspension if the license is suspended “for a subsequent time.” By their plain meaning, the words “said subsequent suspension” refer to “for a subsequent time.” Appellant stipulated that the second and third suspensions were for the offenses committed after the first driving while intoxicated offense. We hold that this meets the requirements of article 6687b, section 24(b).

Moreover, even if the convictions were not “subsequent” and if, therefore, there were three twelve month suspensions, appellant’s position requires a second conclusion. For all three suspensions to have expired, they must have run concurrently. Appellant's driving record, certified by the Department of Public Safety, indicates that the suspensions run concurrently. Notwithstanding this recitation, the suspensions must, as a matter of law, run consecutively. Texas Department of Public Safety v. Preble, 398 S.W.2d 785 (Tex.Civ.App.—Houston 1966, no writ); Tatum v. Texas Department of Public Safety, 241 S.W.2d 167 (Tex.Civ.App.—Austin 1951, writ ref’d). Therefore, we hold that the first suspension expired on March 9, 1982, and the second suspension began on that date. On March 24, 1982, appellant’s drivers license was suspended whether the second suspension was for eighteen months or for twelve months.

The judgment of the trial court is affirmed.


author: GUILLOT, Justice. STEPHENS, Justice,

text:
    Ronnie Louis JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 05-83-00956-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 11, 1985.

      S. Michael McColloch, David W. Coody, Dallas, for appellant.
    John Nation, Ann B. Wetherholt, Asst. Dist. Attys., Dallas, for appellee.
    Before STEPHENS, WHITHAM and GUILLOT, JJ.
   GUILLOT, Justice.

Ronnie Louis Jones appeals a conviction for felony murder. Punishment was assessed at confinement for sixty yeárs in the Texas Department of Corrections. Jones asserts three grounds of error. We overrule all grounds and affirm.

In his first ground of error, Jones contends the trial court erred in not instructing the jury on the lesser included offense of voluntary manslaughter. Jones asserts that the circumstances portrayed in his written statement, given to the police after his arrest, show that the homicide in this case was committed under the influence of sudden passion so as to require a jury instruction on voluntary manslaughter. In his statement to the police, Jones admitted that while burglarizing the deceased’s home, he was surprised by the deceased who was armed with a knife. His statement continues:

Jackie [the deceased] swung at me with the knife. I dropped the clock and ran toward the living room door. The door was locked and I could not get out. I turned around and put my hands up and fell back in a chair. I told her to let me go and Jackie said she was going to kill me because I was trying to rip her off. Jackie stabbed me in the left leg with the knife. I said woman you done stuck me, just let me go. Jackie stuck me on the right and left arms with the knife. Jackie then raised the knife up to stab me in the chest. I grabbed her as I came up out of the chair and threw her on the couch. I took the knife away from her. I started backing up and Jackie had a hold of my shirt. I was backing toward the kitchen and was going to leave out the kitchen door. When I got to the kitchen door Jackie reached to open one of the kitchen drawers to get a knife. I told her to let me go and she stated I am going to kill your ass. Everything got blurry then and I started to stab her because I thought she was going to kill me. I stabbed Jackie two or three times with the knife, I had taken away from her. Jackie let go of my shirt and I ran out the door.

A charge of voluntary manslaughter in a murder prosecution is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause. Hobson v. State, 644 S.W.2d 473, 477-478 (Tex.Crim.App.1983); Luck v. State, 588 S.W.2d 371, 374 (Tex.Crim.App.1979), cert. denied, 446 U.S. 944, 100 S.Ct. 2171, 64 L.Ed.2d 799 (1980). Manslaughter is defined by the Texas Penal Code as follows:

(a) A person commits an offense if he causes the death of an individual under circumstances that would constitute murder under Section 19.02 of this code, except that he caused the death under the immediate influence of sudden passion arising from an adequate cause.
(b) “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
(c) “Adequate cause” means cause that would commonly produce a degree of anger, rage, rensentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.

TEX.PENAL CODE ANN. § 19.04 (Vernon 1974) (emphasis added).

In the instant case, we find no evidence which would raise the issue that at the time of the offense Jones was acting under the immediate influence of sudden passion arising from an adequate cause. The only evidence with regard to the propriety of a voluntary manslaughter charge is found in Jones’ statement to the police. From that statement it is clear that Jones initiated the provocation leading to the deceased using a knife by breaking into her house to steal. The statement reads in pertinent part “... Jackie said she was going to kill me because I was trying to rip her off.” Sudden passion must be directly caused by and arise out of provocation by the deceased at the time of the offense. Passion which is solely the result of former provocation will not qualify. Hobson, 644 S.W.2d at 478.

In the case of Daniels v. State, 645 S.W.2d 459 (Tex.Crim.App.1983), a bare claim of fear was found to be insufficient to raise the issue of whether one was acting under the immediate influence of sudden passion arising from an adequate cause. In the instant case, Jones did not make a “bare claim of fear;” Jones never stated he was in any fear. Regardless of this fact, Jones contends that his statement shows “frenzied, provoked actions against a relentless attacker which enraged and frightened him to the point that everything was blurry.” Jones’ statement shows two things: (1) Jones had the knife; and (2) the drawer that deceased “reached to open” was closed. Jones’ statement assumes the deceased was reaching for a kitchen drawer for a knife. The fact that Jones surmised the deceased could reach a knife did not show the requisite fear, only a conscious awareness of danger. Because there is no showing that Jones stabbed the deceased under circumstances which would constitute the offense of voluntary manslaughter, Jones’ first ground of error is overruled.

In his second ground of error, Jones contends the trial court erred in denying the motion to dismiss his indictment for failure to comply with the Speedy Trial Act. TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984). In the present cause, Jones was indicted for the murder of Jackie Patrick on March 8,1983. The State filed its announcement of ready on March 21, 1983. The record shows that on March 21,1983, the trial court made a finding that the State was ready for trial and that the Speedy Trial Act was tolled. On this same date, Jones agreed to pass the case. The case was then set by the court coordinator for April 4, 1983. On April 4th the case was passed, by agreement, to April 15, 1983. Again, the trial court made a finding that the State was ready for trial and that the Speedy Trial Act was tolled. Because Jones did consent to the continuances between March 21, 1983, and April 15, 1983, this time period falls under the exclusions of Section 4 of the Speedy Trial Act. TEX. CODE CRIM.PROC.ANN. art. 32A.02, § 4 (Vernon Supp.1984). Furthermore, on April 14,1983, the case was passed to April 18, 1983, and on April 18, 1983, the case was passed to July 11, 1983, although no pass slips appear in the record. In the 194th Judicial District Court, the settings and passings of a case for trial is controlled by the trial court coordinator, not by the prosecutor.

The standard for dismissal under Article 32A.02, section 1, “that the State is not ready for trial,” refers to the preparedness of the prosecution for trial and does not encompass the trial court and its docket. TEX.CODE CRIM.PROC.ANN. art. 32A.02 (Vernon Supp.1984); Barfield v. State, 586 S.W.2d 538, 542 (Tex.Crim.App.1979). In addition, article 32A.02, section 3, states: “The failure of a defendant to move for discharge under the provisions of this article prior to trial or the entry of a plea of guilty constitutes a waiyer of the rights accorded by this article.” Once a defendant files a motion to dismiss for failure to adhere to the provisions of the Act, the state must declare its readiness for trial then and at the times required by the Act. This declaration is a prima facie showing of conformity to the Act, but can be rebutted by evidence submitted by the defendant demonstrating that the state was not ready for trial during the Act’s time limits. Jones, by asserting that the State could not have been ready to try the case on March 21,1983, because he was not indicted until June 14, 1983, does not rebut the State’s announcement that it was ready to try any cause that arose out of the murder of Patrick. The fact that the state filed an indictment within the prescribed time period and that when it subsequently filed a re-indictment for the same offense, announced that it was ready, and had been ready since March 21, 1983, to try all cases that arose out of that murder created a presumption of readiness which Jones did not rebut. Ward v. State, 659 S.W.2d 643, 647 (Tex.Crim.App.1983); Barfield, 586 S.W.2d 538. The time requirements of the Speedy Trial Act were tolled March 21, 1983. Consequently, we overrule Jones’ second ground of error.

In his third ground of error, Jones asserts the trial court committed reversible error by excluding the testimony of Police Chief Billy Prince after hearing his testimony outside the presence of the jury, pursuant to the state’s motion in limine. Jones argues that Prince was called to show the six officers who testified were biased against Jones.

Trial courts have considerable discretion as to how and when bias may be proved and as to what collateral evidence is material for that purpose. Cloud v. State, 567 S.W.2d 801 (Tex.Crim.App.1978).

The extent to which a witness may be cross-examined for the purpose of showing bias on a collateral matter rests on the sound discretion of the trial judge. The trial judge must balance the probative value of evidence sought to be introduced against the risk its admission may entail.

Cloud, 567 S.W.2d at 802. Such potential risks include the possibility of undue prejudice, embarrassment or harassment either to the witness or to a party, the possibility of misleading or confusing the jury, and the possibility of wasting time. Cloud, 567 S.W.2d at 803; see also Howell v. American Livestock Insurance Company, 483 F.2d 1354 (5th Cir.1973); United States v. 412.93 Acres of Land, 455 F.2d 1242 (3rd Cir.1972). The witnesses’ testimony indicates they testified only to what they saw and did at the scene of the crime. Furthermore, it is beyond dispute that the deceased was killed by multiple stab wounds and that Jones admitted his involvement.

Prince’s testimony does not show any potential for bias on the part of any of the witnesses. In essence, Jones was asking the trial court to allow him to impeach Prince on the basis of speculation as to pressure the two witnesses might have felt to testify favorably for the State. Speculation about a witness’ ulterior motives for testifying against the defendant is of little probative value as impeachment. Such speculation invites harassment of the witness, can delay the trial, and can confuse the issues and the jury. Carrillo v. State, 591 S.W.2d 876, 887 (Tex.Crim.App.1979). The trial court’s exclusion of Prince’s testimony was not an abuse of discretion. Jones’ third ground of error is overruled.

The judgment of the trial court is affirmed.

STEPHENS, J., files a dissenting opinion.

STEPHENS, Justice,

dissenting.

I respectfully dissent. The majority has determined that appellant’s written statement constitutes no evidence that he was acting under the immediate influence of sudden passion arising from an adequate cause when he inflicted stab wounds on the decedent, causing her death. I disagree.

The majority opinion correctly recites the principle that a charge of voluntary manslaughter in a murder prosecution is mandatory only when there is evidence that the defendant acted under the immediate influence of sudden passion arising from an adequate cause.

Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App.1983) (en banc). However, this principle must be considered together with other principles of law concerning lesser included offenses. In Hobson, the Court stated that the question is whether “some” evidence that the defendant was acting under such “immediate influence” is present. Hobson v. State at 478.

In reaching its decision as to the propriety of a charge on involuntary manslaughter, the trial court must consider all evidence, and if any evidence, whether contradicted or not, raises an issue that a lesser included offense may have been committed, the trial judge must include a proper instruction on the lesser included offense. Lugo v. State, 667 S.W.2d 144, 145 (Tex.Crim.App.—1984) (en banc). The evidence must be viewed objectively, through the eyes of an ordinary man. Hobson v. State at 478. Magic words, such as “sudden passion” are unnecessary, so long as the circumstances give rise to the inference that the defendant acted under “sudden passion.”

Several conclusions are reached by the majority in their analysis of appellant’s statement, with which I disagree. The majority concludes that “Jones did not even make a bare claim of fear;” that “Jones initiated the provocation leading to the deceased using a weapon by breaking into her house to steal;” and that “the fact that Jones thought the deceased could reach a knife did not show the requisite fear, only a conscious awareness of danger.” Judge Clinton, in Daniels v. State, 645 S.W.2d 459, (Tex.Crim.App.1983) (en banc), stated that “a bare claim of ‘fear’ does not demonstrate ‘sudden passion arising from adequate cause,’ ” yet, he recognized that “on the other hand ‘fear’ that rises to the level of ‘terror’ may constitute sudden passion when its cause is such that would commonly produce a degree of terror ‘sufficient to render the mind incapable of cool reflection.’ ” In Lugo, the court adopted the language used in several earlier cases for the proposition that the trial court’s judgment of the strength or weakness of the evidence is not controlling. Being the prerogative of the jury to pass upon the probative force of the evidence, the appellant has the right to have a jury and not the court decide the effect of such evidence.

With these guidelines in mind, I conclude that a rational trier of fact could have found that the appellant, upon being caught in the apartment, sought to flee without the intention of harming anyone. When cornered, he fell into a chair and, in an attempt to protect himself, wrestled the knife from his assailant. After gaining possession of the knife, he again retreated, trying to escape, but when he saw the assailant reach for the drawer he thought she was reaching for a knife. He then told her to “let him go,” to which she responded, “I am going to kill your ass.” It was at this point in time that “Everything got blurry then and I started to stab her because I thought she was going to kill me.” Under these circumstances a rational trier of fact, viewing the circumstances with the eyes of an ordinary man, could have well concluded that appellant’s fear rose to the level of terror which rendered him incapable of cool reflection, and acting under this immediate state of passion, he inflicted the fatal stab wounds.

I would reverse and remand the cause for the failure to include the lesser included offense of voluntary manslaughter in the charge.


author: PAUL PRESSLER, Justice.

text:
    Vernon Earl JONES, Appellant, v. STATE of Texas, Appellee.
    No. B14-83-848CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1985.

      Ronald Hayes, Houston, for appellant.
    Calvin Hartmann, Asst. Dist. Atty., Houston, for appellee.
    Before PAUL PRESSLER, MURPHY and DRAUGHN, JJ.
   PAUL PRESSLER, Justice.

This is an appeal from a conviction of robbery.

On January 15, 1983, appellant ate lunch at a restaurant where the relevant events occurred. The cashier testified that he requested and received change and also that she directed him to the restroom outside the restaurant. She and other witnesses testified that appellant returned a few minutes later, walking hurriedly, went behind the counter, grabbed the cashier and tried to push her toward the kitchen. He held one hand under his shirt and stated that he had a gun, was robbing the restaurant and for the customers to get on the floor. When a delivery man entered the restaurant through a back door, appellant fled on foot. The delivery man chased appellant and caught him. He testified that as he held appellant and waited for the police to arrive, appellant offered money to him and another man who joined them if they would let him go. Police officers subsequently arrived and arrested appellant.

Appellant admitted going to the restaurant but testified that the complainant short-changed him. He said that when he confronted her, four men in the restaurant “jumped” him and began hitting him. He testified that he was able to break free and run from them, but some of the men caught him and about twelve of them beat him.

The first police officer to arrive at the location where appellant was being held testified that four or five persons were present, the situation seemed to be under control, and appellant had only minor scratches.

A jury found appellant guilty of robbery. It assessed his punishment, enhanced by two prior felony convictions, at thirty years in the Texas Department of Corrections. We affirm.

In his sole ground of error, appellant contends the evidence was insufficient to prove the commission of the offense beyond a reasonable doubt. Appellant does not specify where the evidence was lacking or which elements of the offense were not proven. He merely argues that his actions were not those of one who is planning to commit a robbery and that no robbery was committed.

In reviewing a challenge to the sufficiency of the evidence, an appellate court must view the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984).

A person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or places another in fear of imminent bodily injury or death. TEX.PENAL CODE ANN. § 29.02(a)(2) (Vernon 1974). The first element of a crime is that there be a person who commits the offense. Positive in-court identification of a defendant by victims of a robbery is to be given great weight. Haywood v. State, 507 S.W.2d 756, 758 (Tex.Crim.App.1974). The evidence in Haywood included testimony by victims that the defendant had made no attempt to conceal his identity and that they had sufficient time and light to observe him at the time of the robbery.

In the instant case, four witnesses, including the cashier, positively identified appellant in court as the person who threatened them in the restaurant and told them it was a “hold up.” The first police officer to arrive on the scene likewise made a positive in-court identification. Their testimonies are sufficient to establish appellant as the person who committed the acts in question.

The second requirement of the crime is that the threat or fear created occurs “in the course of committing theft.” A person commits theft if he unlawfully appropriates property with the intent to deprive the owner of it. TEX.PENAL CODE ANN. § 31.03(a) (Vernon Supp. 1984). “In the course of” refers to “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” TEX.PENAL CODE ANN. § 29.-01(1) (Vernon 1974). Thus a person need not actually commit theft for him to be found guilty of robbery. Robinson v. State, 596 S.W.2d 130, 134 (Tex.Crim.App.1980) (en banc). Appellant’s intent is to be determined from his words, acts, and conduct. Jenke v. State, 487 S.W.2d 347, 348 (Tex.Crim.App.1972). Evidence is sufficient to show ownership if it shows that the property was taken from the care, custody and control of the complaining witness. Cross v. State, 550 S.W.2d 61, 64 (Tex.Crim.App.1977).

The complaining witness here was also the cashier, who testified that she had care, custody and control over the money in the restaurant. Witnesses testified that appellant announced to the cashier and customers that this was a “hold up,” that the customers must get on the floor, and that he had a gun. He attempted to grab the cashier and push her into the kitchen. He kept his hand beneath his shirt the entire time, and witnesses testified that they believed he could have had a gun. When a delivery man surprised him, appellant fled and continued trying to elude those chasing him. This evidence is sufficient to fulfill the second requirement of the offense and the requirements for the offense of theft.

A third element of this offense is that the person intend to obtain or maintain control of the property. Where the victim testified that appellant took property from her by exhibiting a pistol and putting her in fear of death or bodily harm, the evidence was sufficient to sustain his conviction for robbery by assault. Jenke, 487 S.W.2d at 348. Here, the evidence is clearly sufficient to sustain the intent requirement.

Finally, proof of the offense requires the State to show that appellant intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death. Where the victim testified that she feared imminent bodily injury from the time appellant approached her at the cash register until he exited, that she thought at first he had a gun, and that he threatened her with physical harm, the evidence was sufficient to show that appellant placed her in fear of imminent harm. Patterson v. State, 639 S.W.2d 695, 696 (Tex.Crim.App.1982). The testimony is sufficient here to support both the requirement of intent or knowledge and that of placing complainant in fear of injury or death.

The evidence was clearly sufficient to support a guilty verdict, as each element of the crime could have been found by the jury. Appellant’s ground of error is overruled.

We affirm.


author: SEARS, Justice.

text:
    MOODY HOUSE, INC., Appellant and Cross-Appellee, v. GALVESTON COUNTY, et al, Appellees and Cross-Appellants.
    No. C14-84-308CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Feb. 14, 1985.
    Rehearing Denied March 21, 1985.

      Thomas McQuage, Galveston, for appellant and cross-appellee.
    Elmo M. Johnson, Ronald Plackemeier, Harvey Bazaman, Galveston, for appellees and cross-appellants.
    Before JUNELL, MURPHY and SEARS, JJ.
   OPINION

SEARS, Justice.

This case concerns limited appeals by both parties and involves the attempted use of Rule 428 to supplement Appellant’s record to include matters material to Cross-Appellants’ points of error.

On January 7, 1982, Moody House, Inc. (Moody or Appellant) filed suit against the County of Galveston, the Galveston County Appraisal District, and C.R. Johnson, Tax Assessor-Collector of Galveston County and Chief Appraiser for the Galveston County Appraisal District. In turn, the County of Galveston impleaded the City of Galveston, Galveston Independent School District, Galveston County Navigation District No. 1, and Galveston College. (All of these parties will hereinafter be referred to as Galveston County or Cross-Appellants). Appellant sought a declaratory judgment to establish its status as a charitable organization, exempt from ad valorem taxation for the years 1978 through 1982 under the provisions of TEX.CONST. art. VII, § 2, TEX.REV.CIV.STAT.ANN. art. 7150, §§ 7 and 27 , and TEX.TAX CODE ANN. § 11.18 (Vernon 1982). Galveston County counterclaimed, seeking payment of taxes allegedly due for the years in question.

After a non-jury trial, the court held that Moody House, Inc. was entitled to exemption from taxation for the years 1978 through 1981. However, it denied Moody’s exemption from taxation as a charitable organization for the year 1982, due to its failure to comply with the administr.ative provisions and remedies set out in Chapters 41 and 42 of the Property Tax Code. Galveston County was awarded judgment in the sum of $204,705.11 on its counterclaim for delinquent taxes due for 1982. Both Moody House and Galveston County appeal from the judgment rendered in the court below. We reverse in part and affirm in part.

In order to more efficiently dispose of this case, we will first address Cross-Appellants’ “Motion to Supplement the Statement of Facts” which we have taken for consideration along with the appeal. We will summarize the sequence of events for clarity. On February 2, 1984, the judgment of the trial court was signed. On February 16, 1984, Appellant filed its Notice of Limited Appeal. On March 13,1984, Appellant timely requested the preparation of a partial statement of facts, TEX.R. CIV.P. 377(d), designating matters pertinent to its points of error. Appellant also included a statement of the points of error it would rely upon in this appeal. Within ten days thereof, Cross-Appellants did not file a designation of additional portions of the evidence to be included, as required by the same rule. In fact, on April 18, 1984, Cross-Appellants filed their own Notice of Limited Appeal. On May 10, 1984, it requested that the court reporter prepare additional portions of the statement of facts to support this separate appeal. The time for filing a transcript and statement of facts in this Court, pursuant to TEX.R. CIV.P. 386, expired on May 14, 1984. At no time did Cross-Appellants file a Rule 21c motion for extension of time to file their record. On June 11, 1984, Cross-Appellants filed their brief, alleging four points of error. On July 16, 1984, at least two months after the record was required to be filed, they filed a “Motion to Supplement the Statement of Facts.” In the motion, Cross-Appellants asked that this Court allow a supplemental statement of facts-to be filed, containing the following:

1. The testimony of N. Joe Helms.
2. The testimony of Robert Boening.
3. Exhibits offered in the course of testimony of N. Joe Helms and Robert Boening.

Cross-Appellants also stated in their motion that the information requested (1) was material, (2) was requested timely (but the court reporter was unable to prepare it prior to the time the motion was filed), and (3) would not cause delay.

It is apparent that Cross-Appellants intended to file their record under TEX.R.CIV.P. 428, which provides:

If anything material to either party is omitted from the transcript or statement of facts, the parties by stipulation, or the trial court, either before or after the record has been transmitted to the appellate court, or the appellate court, on a proper suggestion or on its own initiative, may direct a supplemental record to be certified and transmitted by the clerk of the trial court or the official court reporter supplying such omitted matter. If the appellate court deems the omitted matter material, it shall permit it to be filed unless the supplementation will unreasonably delay disposition of the appeal.

Under this rule, it is clearly within the power of this court to permit a party to file a supplemental record before submission of the case, if it can be shown that the omitted matter is material to the disposition of the case on appeal. See Goldsmith v. Stephenson, 634 S.W.2d 331 (Tex.App.—Dallas 1982, .no writ); TEX.R.CIV.P. 428. However, we do not believe this rule allows a party seeking to appeal from a court’s judgment to disregard TEX.R.CIV.P. 5, 386, or 21c. The courts have consistently held we may not extend the time for filing the transcript and the statement of facts, except in compliance with Rule 21c. B.D. Click Co., Inc. v. Safari Drilling Corp., 638 S.W.2d 860 (Tex.1982). We can find no authority, and Cross-Appellants cite none, for using Rule 428 to extend time for filing the record on appeal.

Cross-Appellants filed their notice of an independent appeal on April 13, 1984, approximately two months after Appellant filed its own Notice of Limited Appeal. They filed a timely cost bond on May 2, 1984, then made their first request to the court reporter for a statement of facts on May 10, 1984, only four days before the record was due to be filed. Their first motion to file this statement of facts was dated July 16, 1984, more than five months after the judgment was signed. More important, the statement of facts Cross-Appellants seek to file contains no information material to the points of error cited by Appellant or which would aid this court in ruling on that appeal. To the contrary, all testimony contained therein relates solely to those points presented by Cross-Appellants in their separate appeal.

We hold the appeals of the parties are separate, and based on different points of error, each requiring compliance with the pertinent rules. The Cross-Appellants cannot rely on Appellant’s record to support Cross-Appellants’ points of error unless that record is complete as to Cross-Appellants’ appeal. We, therefore, overrule Cross-Appellants’ “Motion to Supplement the Statement of Facts.” In the absence of the statement of facts, this court must presume that there was sufficient evidence to support the trial court’s findings. Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968); Restrepo v. Barrios, 603 S.W.2d 377 (Tex.Civ.App.—Waco 1980, no writ). We further overrule all of Cross-Appellants’ points of error.

We now address the argument of Appellant. In points of error one and two, Appellant contends the trial court erred in finding that it is barred from asserting its tax exempt status for 1982 on the ground that it failed to pursue its administrative remedies pursuant to Chapters 41 and 42 of the Property Tax Code. It claims the evidence conclusively establishes that the Chief Appraiser for the Galveston County Appraisal District took no action that required Appellant to pursue administrative remedies. We agree.

On January 7, 1982, Moody filed suit in the district court of Galveston County, seeking a declaratory judgment establishing its status as a charitable organization, exempt from ad valorem taxation, plus a permanent injunction to prevent Galveston County from assessing, levying, and collecting taxes for the years 1978 and all subsequent years. On April 27, 1982, Moody submitted its application for tax exemption for the year 1982 to William F. Ryan, Manager of the Tax Assessor’s office for Galveston County. The record indicates that at the time the application was submitted, Appellant’s attorney, Mr. Greer, and Mr. Ryan discussed the fact that there was no evidence that Moody House was a charitable organization nor had Moody submitted any supporting documentation to the tax assessor’s office to show such status. However, on that same day, following this discussion, Mr. Ryan sent a letter to Mr. Greer, stating:

Your application for tax exempt status on Moody House, Inc. is received for 1982. Please be advised that approval or disapproval is being held in abeyance pending outcome of the court suit in progress. (Emphasis added.)

After receiving the letter from Ryan, Moody took no further action on its 1982 tax exemption until the time of trial.

TEX.TAX CODE ANN. § 11.45 (Vernon 1982) provides:

(a) The chief appraiser shall determine separately each applicant’s right to an exemption. After considering the application and all relevant information, the chief appraiser shall, as the law and facts warrant:
(1) approve the application and allow the exemption;
(2) modify the exemption applied for and allow the exemption as modified;
(3) disapprove the application and request additional information from the applicant in support of the claim; or
(4) deny the application.
(b) If the chief appraiser requests additional information from an applicant, the applicant must furnish it within 30 days after the date of the request or the application is denied. However, for good cause shown the chief appraiser may extend the deadline for furnishing the information by written order for a single period not to exceed 15 days.
(c) The chief appraiser shall determine the validity of each application for exemption filed with him before he submits the appraisal records for review and determination of protests as provided by Chapter 41 of this code.
(d) If the chief appraiser modifies or denies an exemption, he shall deliver a written notice of the modification or denial to the applicant within five days after the date he makes the determination. He shall include with the notice a brief explanation of the procedures for protesting his action.

The trial court held that the Chief Appraiser’s failure to make any ruling pursuant to Section 11.45 constituted a denial of Moody’s exemption. As a result, Moody’s failure to pursue its administrative remedies for protesting such “ruling” barred it, pursuant to Section 42.09 of the Property Tax Code, from raising its defense of exemption from taxes for tax year 1982.

We find no evidence in the record to support the trial court’s finding that Galveston County’s failure to act on Moody’s application for exemption was, in effect, a denial of its request. The evidence conclusively establishes that Galveston County expressly postponed any determination of Moody’s application until the conclusion of the trial in question. In addition to the April 27th letter to Appellant stating that its application was not denied, but would be “held in abeyance” until the completion of the lawsuit, Ryan made the following comment when questioned at trial:

I use the words “held in abeyance”. I didn’t say that it was, that it is in effect a denial if you would,.... ”

Appellees attempt to persuade us that once an application has been submitted to the taxing authorities pursuant to § 11.43 of the Tax Code, the Chief Appraiser must approve, modify, disapprove, or deny the application, and any attempt to defer a decision would be unauthorized and a violation of § 11.45(c). We find no merit in this contention. While § 11.45(c) does require the Chief Appraiser to act upon the taxpayer’s application before submitting the records for review and determination of protests, we find nothing in the statute to preclude the Chief Appraiser from postponing his determination of an applicant’s tax exempt status pending the outcome of other proceedings. We do not believe such action would be in derogation of the requirements set forth in § 11.45. Appellees cannot seriously argue that, after clearly stating their intent to take no further action on the application pending the outcome of this lawsuit, it was incumbent upon Moody House to conclude that such was a denial (or disapproval) of its request, necessitating the filing of a written notice of protest. To so find would produce a harsh and unjust result. Therefore, we sustain Appellant’s points of error one and two.

The trial court’s judgment reads in part, “Moody House satisfied the requirements of Article VII § 2 of the Constitution and § 11.18 of the Property Tax Code regarding its entitlement to exemption for 1982 and would have been entitled to so qualify for exemption from taxation but, as hereinafter shown failed to adequately pursue its remedies_” (Emphasis added.)

We therefore reverse the portion of the trial court’s judgment holding that Appellant failed to adequately pursue its remedies, and we render judgment that Appellant is entitled to exemption from taxation for the year 1982.

We affirm the remainder of the trial court’s judgment.

      . Acts 1979, 66th Leg., ch. 841, repealing this article, enacts the Property Tax Code, constituting Title 1 of the Tax Code.