Bloom v. Bloom
767 S.W.2d 463
Tex. App.
1989
Check Treatment

*3 judgment my property on which had JJ, CHAPA, and Before BUTTS and in been rendered cause of ac- above BISSETT, Assigned Justice. 17, August tion on any I official notice never received OPINION County from the District Clerk Bexar BISSETT, Assigned Justice.* concerning rendering of judgment a appeal by This is an a writ of error from against me. post-answer default I never knew that a trial date had been appellants C. Bloom and Alicia Robert action, in this cause of and I never set defendants, Bloom appel- Valdes were any any participated in such trial in form par- plaintiff. lee Gertrude Bloom was The whatsoever. “plaintiff” be referred ties will to as in their of er- second “defendants,” as in the ror, give plaintiff failed to contend that The principal question presented court. that, setting them notice of proper record whether the shows that no- therefore, judgment of the trial court setting provided tice of the trial disagree. should be reversed. We required by defendants as TEX.R.CIV.P. (Vernon Supp.1988). (Vernon Supp.1988) TEX.R.CIV.P. may provides the court set contested original Plaintiff filed on any party, motion or cases for trial on April alleging the breach of an motion, with reasonable the court’s own and the by oral contract refusal the defen- days ten to the notice of not less then personal items dants return certain (Vernon parties. Supp. 21a previously property delivered to defendants 1988) required gen- provides every notice safe-keeping. filed a for Defendants May 6, by than the service of cita- denial 1987. The case was the rules other eral pro- tion, expressly August except trial on the as otherwise set for merits rules, by may be served deliv- appear did not at the vided 1987. Defendants copy the notice or of the doc- ering The court on trial. case was tried agent, party, his Judgment favor to be served August of ument record, person, by plaintiff or either signed on mail, mail, any registered by certified from which decreed recover $44,401.69, by the court. in- manner as directed defendants the sum of with other * (Vernon 1988). 74.003(b) Supreme Assigned ANN. sec. the Chief Justice of the pursuant to TEX.GOV’T CODE Court Texas

A writ of error copy constitutes a di of the motion setting and the order judgment, rect attack on a default and in hearing “has been hand-delivered or appellant prevail, order for an the inval mail, mailed certified receipt return re- idity of must be disclosed quested,” to defendants at their home ad- papers on file in the case. Pace dress. The motion July was heard on Sports, Inc. v. Davis Publishing Brothers set, order, previously and an sub- Co., (Tex.1974). 514 S.W.2d 247 appel Leach, granting mitted Mr. his motion only late court will look to the record on signed July order, 1987. The file the trial court to determine the inval part, relevant reads: idity Wilson v. Industri hearing argu- After the evidence and Leasing Corp., al counsel, ment of the Court is of the [1st Dist.] - Houston notifying that Movant’s Defen- writ). presumptions judg The usual setting dants of Plaintiff’s trial for Au- validity indulged ment’s are not in a ofwrit gust 17, 1987. proceeding. error Edgar, McKanna v. IT IS THEREFORE ORDERED that *4 927, (Tex.1965). S.W.2d 929-930 LEACH, Defendants, attorney RAY for proceeding In a writ of error permitted is hereby to withdraw and is question the papers which is whether the attorney as of withdrawn record for De- (in court) on file in the case the trial fendants, ROBERT C. BLOOM and ALI- proper showed that notice of the trial set CIA IT VALDES BLOOM. IS FUR- ting provided defendant, to the recita THER ORDERED that Movant will for- judgment tion of due notice the consti copy setting ward a of Plaintiff’s trial some, conclusive, tutes but mail, Defendants certified return re- proper given, that notice was but where ceipt requested, as a condition to the judgment effectively such recitation is re granting of this order. IT IS FURTHER papers,” butted other evidence “the ORDERED that Plaintiff and her attor- Bosco, longer no is taken to be true. P. ney any of other shall execute service Lott, Nichols, Etc., Conley, Etc. v. document, pleading required or notice as 142, 1982, - Dallas Procedure, the Rules of Civil serv- ref’d writ ing the Defendants their last at known right party present to be at a residence, Grove, place of 10303 Charter fundamental, trial and be heard is and fail Antonio, Texas. San give adequate ure to notice of a trial set July, day SIGNED on the 24th 1987. ting process. constitutes lack of due Arm /S/ Carol R. Haberman Manzo, 545, strong v. 380 U.S. 85 S.Ct. PRESIDING JUDGE (1965); L.Ed.2d Morris v. Mor SUBMITTED BY: ris, (Tex.Civ.App.- 0. DEE- 1977, writ). LAW OFFICES OF JAMES Antonio San GEAR, III bar, Leach, Ray In the case at Mr. Mary’s 405 North Street St. defendants, attorney the for the filed a Building, Suite 900 Travis attorney as of record motion to withdraw Antonio, Texas 78205 San According July to the briefs 1987. (512) 224-0683 plaintiff, parties, attorney the for of both Ray By: Leach s/ 14, 1987) day (July filed a on the same RAY LEACH trial, motion to set the case for and mailed Texas Bar No. 12086200 July Leach on copy thereof to Mr. PLAINTIFF ATTORNEY FOR 1987. Leach noti- There is no evidence that Mr. The motion to withdraw as defendants’ mail, return “by certified fied defendants July 1987. The attorney was heard on otherwise, that the receipt requested,” or hearing appear did not at the August for trial for Leach, case was set although Mr. in his “Certificate the defendants Service,” There is no evidence that a true and correct certified that writing mailing date last had actual notice the that the the known address against for party set trial. the whom the taken, which certificate shall filed Defendants, in their for among papers in the cause. Immedi- error, alleged: ately upon signing judgment, of the FURTHERMORE, pro- the records of post the clerk shall mail a card notice ceedings in cause this would indicate against party thereof to the whom the LEACH, July then RAY rendered the address attorney Movant ROBERT certificate, shown in the note the BLOOM, ALICIA BLOOM and VALDES mailing fact of such on the docket.... filed a Motion Withdraw comply provisions Failure to with attorney as Defendant’s of record and on finality this rule shall not affect the July, granting 21st of said Order granted. July request was On same plaintiff Neither nor her of record day RAY LEACH which certified clerk Counsel, filed to as Withdraw Plaintiffs writing mailing last known address of EGERT, attorney, KATHLEEN filed 239a, required by the defendants as Rule Motion to on said Set Trial showing and there is copy action mailed a true thereof to attorney obeyed portion July dated RAY LEACH permitting order Mr. Leach to withdraw copy setting A order actual defendants, attorney of record for appear case for trial does not record. stated: However, shows court’s docket ... It is further ordered that Plaintiff that the case was set for trial for *5 attorney and her shall execute service of papers 1987. The file in this document, any pleading other or notice conclusively show that Mr. Leach knew of by required as the Rules of Civil Proce- setting the trial when he submitted the dure, serving at their the Defendants granting order his to as motion withdraw residence, place last of 10303 known attorney of record the defendants as Grove, Antonio, Charter Texas. San request the order states that his should granted, The “subject notifying to De- statements made defendant Robert Movant’s setting of Plaintiff’s for Au- Bloom in his for writ of error con- fendants trial gust 17, Therefore, cerning Leach of the 1987.” Mr. notice to him of the rendition the judgment knew date the case was set default are uncontradicted. permitted he to trial withdraw before support position, in of their attorney as of record for defendants. Such City v. upon Laredo rely the case of of of notice constituted notice to defendants Threadgill, (Tex.App. 734 686 S.W.2d - San setting 21a the trial under TEX.R.CIV.P. writ) proposition Antonio for the (Vernon Supp.1988). Defendant’s second comply appellee’s failure with that “the to point of is overruled. error giving clerk no 239a in the TEX.R.CIV.P. error, appellants’ weighs tice of the address point third their of heavily re- consideration.” That complain should be in the court’s court review, the case concerns denial bill versed remanded because Here, point. are plaintiff rendi- is we con notify failed to then not judgment. appeal do not an of error. tion of default We cerned with writ agree. Grayson rely further Defendants Jackson, Co., (Vernon 1976), Extinguisher Fire Inc. v. 239a at the

TEX.R.CIV.P. case, (Tex.Civ.App. this judgment time was rendered 566 S.W.2d - Dallas pertinent part, provided: n.r.e.) proposition for the ref’d writ comply failure to with an while immediately prior to the time At or error, is rule not is 239a not reversible judgment final interlocutory or default meaningless the de by denying rendered, or rendered party taking the same right reversal on writ certify to the clerk fendants his shall error. That case is point grounds since it con for relief from judgment if the appeal an judgment cerns from a default defendants are able to establish that error; there, appellants writ as have a meritorious defense to the action appellee comply serted that the failed brought against by plaintiff. them See with Rule 239a since he did not furnish the Rosser, (Tex.1964). Hanks v. S.W.2d clerk with defaulting court’s defendants’ However, remedy their is to file a bill of last known address so that the clerk could review, up and to set lack of notices as one copy appellants judg send of the default grounds. Haged See Alexander v. ment, and therefore deprived them of an orn, (1950). 148 Tex. 226 S.W.2d 996 trial; opportunity to file a motion for new appeal by In the writ of an they contended that Rule 239a manda appellant to showing is limited the invalidi tory timely comply and that the failure to ty judgment by papers on file in with that rule constituted error. reversible 322; Grayson, the case. 566 S.W.2d at appellate disagreed, The and af Liberty Co., Jaramillo v. Mutual Fire Ins. firmed the default 585, 586 (Tex.App. Corpus - purpose 239a is to af Rule ref'd Christi writ Since the judg ford a defendant notice of the default face on its in this case is not against has him ment which been rendered invalid, papers and as the file in this timely that he can so file a motion for new its invalidity, case do not show we hold that trial; designed it is administrative comply the failure with the certificate parties, convenience for and the failure provisions of and notice Rule 239a do not therein, file the certificate mentioned appeal by constitute reversible error in this give required notice of the default of error. point Defendants’ third judgment, does not er constitute reversible error is overruled. 32; Grayson, City ror. further Defendants contend their first Arney, Houston v. judg- of error that the court's trial [1st Dist.] - Houston ren- ment should be reversed and writ). nothing take dered that because particular importance to the dis Of (her original petition pleading) did position appeal in the instant case give notice them fair of the nature *6 Grayson, are the statements in made them, and, brought against the action as a at wherein was said: it consequence, they adequately could not question penalty then at is what [O]ur They defense to prepare a such action. comply for failure the taches to with argue they apprised either that were never rule? The obvious of the rule is to intent indirectly by allegations in directly or the require that immediate notice of the de they “if petitions being accused of the defaulting fault sent to the defendant tort, tort, a a an intentional non-intentional de may timely challenge that he the so contract, a violation of some breach of jurisdic the trial loses fault before court agreement, or cause of trust some other meaning tion. The rule is not rendered prepare to allow them to action sufficient less, denying appellants suggest, by as defense.” right to writ of them the reversal on file a remedy error. Their is to bill Original filed Petition Plaintiff her review, up to set notice of the and lack of Temporary Application Orders and grounds. one of judgment as the 10, 1987, as noted. These April above and bar, pleadings accompanying and the bond In the case at the failure restraining and show temporary order certify the last address to known served court order were on defendants the clerk defendants to April Defen to 1987 and consequent April the clerk and the failure of immediately retained the services the of the default dants send notice of rendition Leach, represented attorney, Ray who was an and the date the prior continuously until three weeks signed by trial afford them court would trial, Their to as hereinbefore detailed. in their fourth that the “in filed an and claim erred answer various other assessing damages hearing without ade pleadings prior to date he was that proving damages.” quate evidence those permitted attorney of to withdraw as argue They plaintiff's that because claim is however, defendants; special record for unliquidated properly proved and was not plaintiffs original exceptions petition to writing in by an that it was instrument filed In the attorney. were ever their damages to reversible error assess without special exceptions, petition absence of hearing proving damages those in liberally pleader’s will be construed required by Plaintiff Corp., favor. Title Lawyers Stone Ins. unliquidated, claim admits that her but (Tex.1977); K.W.S. argues proved properly that it was affi Manufacturing Company, Inc. v. McMa testimony. davit hon, (Tex.Civ.App.- Plaintiff, original petition, alleged: in her Waco writ ref 'd 1) she to October delivered (Vernon 1979) TEX.R.CIV.P. 45 Bloom, request, defendant C. at his Robert provides 2) November, “consist $12,713.69; sum in plain language statement in concise defendants, and she to at delivered both plaintiffs insistence, silver, cause of In the jewelry, action....” their “all of her bar, crystal at plaintiff, pleadings, totally in her re linens and items val- several $100,000.00”; 3) in plain language cited and she ued excess of in Febru- concise ary, apartment she sold her “$44,401.69” had New delivered defendants to $31,688.00 City York and delivered cash personal property and certain items of proceeds of such sale to defendant Robert her, belonging agreement to oral with the Bloom; 4) April, 1986, C. she delivered safeguard would all of sums defendants, insistence, “all both their personal of cash property and described chandelier, furniture, items, her household pleadings charge without and would vases, fixtures, light lamps, crystal, rugs, upon to plaintiff re-deliver them demand. china, brass, silver, door porcelain and plaintiff’s petition, This statement cou $250,000.00”; chimes, valued excess pled pleadings, with the remainder of her 5) agreed her and defen- between sufficient advise defendants as safeguard all dants that defendants would proof what issues were on trial and the cash, personal property, including be introduced at trial. “The would upon would to her de- redeliver them opposing test attor should be whether mand; 6) April, since she had ney competence, of reasonable with repeated upon made demands defendants pleadings him, na before can ascertain the personal property return all of her controversy ture and the basic issues of her; 7) have returned a testimony probably and the relevant.” jewelry portion of her portion *7 McDonald, practice, texas civil refused return furniture to her but have to 5.05, (1970). of the pp. 15-16 We are § remaining except sum any of the items plaintiff’s pleadings put an cash. $350.00 attorney competence on no- of reasonable plaintiff’s application In connection with suing tice that she was defendants restraining and show temporary for a order oral breach of an contract and bailment. order, plaintiff executed an affidavit cause pleadings petition Plaintiff’s and her other plaintiff she was whereby she swore that per- describing contained statements case, that she had read recovered, sought giv- property sonal to be and the contents application, and dates, ing facts which and circumstances pleading “are true and correct each to apprise defendants were sufficient knowledge.” my best against brought action them. cause of agreement point April first of error is over- On a written Defendants’ among signed parties filed by the and ruled. papers in agreed: 1) this case. It was not be sustained as a matter of law be- pay plaintiff defendants would per plaintiffs’ $350.00 cause of action is not for a living expenses, month for during pend- claim listed in TEX.CIV.PRAC. & REM. case; 2) ency of the joint inventory would (Vernon 1986). CODE ANN. 38.001 We § be taken of the contents of defendants’ disagree. home where the personal items of property TEX.CIV.PRAC. & REM.CODE ANN. cash) (except in controversy located; 38.001, pertinent part, provides: § 3) jewelry placed will safety be in a person A may recover reasonable attor- deposit box for safe-keeping. It was estab- ney’s fees if ... the claim is for: lished that the jewelry consisted of four ****** items. 1) Plaintiff testified at the trial that she (8) an oral or written contract. delivered all personal property, of the in- We hold by plaintiff that the claim asserted cash, cluding particularly in her described upon Therefore, based an oral contract. original petition defendants; 2) it was plaintiff is entitled to recover reasonable agreed between her and defendants that attorney’s point fees. Defendants’ sixth (defendants) they safeguard would all of error is overruled. these sums of personal cash and items of In their fifth property charge without to her and would assert that it was reversible error to award 3) re-deliver them to her at request; attorney’s plaintiff’s fees attorney be- repeated that she made demands to defen- cause the attorneys claim for is unliq- fees personal dants that return proper- uidated and that there is no evidence to cash, ty, including her; 4) some of the support the agree. award. We do not her; jewelry 5) was returned to none remaining Plaintiff, items in her described in paragraph original III of her original petition were returned to her petition, alleged necessary that it was defendants. attorney, secure the services of an and that pay defendants “should be ordered to rea- court, judgment, The trial in its ordered attorney’s sonable fees and should be taxed that the four jewelry, items of paid directly as costs and be ordered to the that time had deposited regis- been into the undersigned attorney.” prayer, In the court, try of the plaintiff be delivered to plaintiff attorney asked that her “be decreed that recover from de- judgment” against awarded the defendants $44,401.69 fendants principal sum of “should ordered to pay reasonable attor- with interest thereon per at the rate of 10% ney’s fees and should be taxed as costs and annum from paid. date of until paid directly undersigned be ordered to the (Vernon 1976), TEX.R.CIV.P. 243 in rele- attorney.” prayer, plaintiff asked part, provides: vant that her judgment” “be awarded If unliquidated the cause of action is against the defendants “for reasonable at- proved by be not an instrument writ- torney’s fees.” ing, the court shall hear evidence as to The statement of facts shows that no one damages render shall ... respect testified at the trial with to attor- Smith, rely Higgins Defendants fees, although plaintiffs’ attorney, ney’s 722 S.W.2d 825 [14th] - Houston statement, told the court: unsworn writ). there, point; That case is not in attorney’s I incurred fees and ... have presented evidence was to the court in $7,500.00 represent- costs excess of support Here, the court ing Bloom ... Gertrude *8 damages heard evidence as to sustained the by plaintiff; fully supports such evidence Testimony in a comes from lawsuit the point Defendants’ fourth of who, witnesses, of an under the sanction error is overruled. oath, knowledge, their relate facts within of an oath to a in their of and the administration sixth by competent a officer is a funda- attorney’s contend the award of fees can- witness

471 in the enact- requirement give which carried forward essential was mental and force, is the & REM. binding ment of TEX.CIV.PRAC. testimony the and witness’ (Vernon 1986), Sep- effective giving CODE ANN. prerequisite a to the of evidence. 17, So, 1, May (Tex.Civ.App. 1985. from Key, v. tember Cauble S.W. III, 29, 1977, 6, 1923, writ); from June August and no 37 Tex.Jur. until -Austin date, judge, Witnesses, present the trial 1979until the 653. § case, and is non-jury in a conventional case, attor the instant the while to examine the case file now authorized court, ney is an officer of the attorney’s of the amount and determine statement, if it is to be considered such examination even fees from if evidence, required to be made under support in offered further Here, oath, it absent a waiver of the oath. the award. of conclusively that is the record shown & REM.CODE ANN. TEX.CIV.PRAC. a plaintiff's attorney sworn as was not awarding of 38.004, controls the which witness, defendants, defaulting § and case, provides in fees in this attorney’s parties, not did not could and waive part: relevant “swearing attorney. in” of We hold judicial may take notice of the the attor court unsworn statement customary attorney’s fees and sup usual and ney does not constitute evidence which case ports attorney’s fees. How of the contents of the file without the award receiving in: ever, holding re further evidence does mandate a versal of the award. (1) proceeding before court

TEX.REV.CIV.STAT.ANN. art. 22261 [*] [*] [*] 3ft [*] # (now & REM. codified as TEX.CIV.PRAC. ANN. & REM.CODE TEX.CIV.PRAC. 38.001-38.006)was amend- CODE ANN. §§ 38.005 states: § 1971, effec- Legislature ed the 62nd liberally chapter This be construed shall amendment, May 17, 1971. That tive promote underlying purpose. its among provisions, provided: other 38.005) (§ exception is to the This article an court, cases, may take non-jury [T]he autho general rule that statute knowledge judicial contents of ... attorney’s pe recovery of fees rizes the determining file amount strictly con and must be nal character attorney’s necessity fees without the Ins. Co. v. strued. First See Preferred hearing further evidence. Bell, (Tex.Civ.App 587 S.W.2d . -Amar statute, While that as amended in 1971 was 1979, ref’d illo writ effect, Texas, in Supreme Court not ask the trial Although plaintiff did Gateway Bank Coward National usual judicial notice “of the court to take Beaumont, (Tex.1975), attorney’s fees customary Walker, speaking through Justice said: determining file” in of the case contents file may examine the case ... court attorney’s award fees be the amount is to make a determination attorney, plaintiff’s nor did ed if oth- attorney’s fees even amount of done formally had announce responsibili- evidence is offered. This er court, in so, may presume that the trial we judge may discharged ty judicial did take support of its trier of fact in the conven- in his role of customary attor the usual and notice of non-jury case ... tional trial the case the contents of ney’s fees attorney’s fees Leg- awarding file the 65th

Effective $7,500.00 attorney. plaintiff's islature, to Art. amount in an amendment v. Intercontinental provision in the Flint Associates above-quoted & deleted the Steel, Inc., by Pipe Legislature, & The 66th 1971 amendment. denied); Tex amendment, effective June - Dallas Peters, 463 S.W.2d Corp. v. above-quoted provision, as Securities reinstated 9(1), September Leg., eff. Repealed by § ch. Acts 69th *9 472 268, (Tex.Civ.App. 1971, 265 process Worth of law under the Fourteenth - Fort writ); no Trucking Buckaloo Co. v. John Amendment to the Constitution of the Unit-

son, 911, (Tex.Civ.App.- 913 ed They rely upon States. Peralta v. Corpus 1966, writ). Christi no Heights Center, Inc., 80, Medical 485 U.S. provision After the deletion of the in Art. 896, (1988) 108 S.Ct. sup- 99 L.Ed.2d 75 2226, 29, 1977, effective to the ef- port of their contention. fect that the trial judicial court could take procedural For the Peralta, facts of see notice of the contents the case file in Inc., Peralta Heights Center, Medical determining the amount of attorney’s fees 715 (Tex.App. S.W.2d 721 [1st evidence, - Houston further without until the 1979 1986, n.r.e.); there, writ ref’d plain Dist.] amendment became effective on June tiff February, filed suit in every proof Citation required by was positive evidence of the was “reasonableness” issued on date the same that suit was attorney’s support fees to the award of filed, but was not served defendant until attorney’s non-jury fees in a or in jury a 16, 1982, June days more than 90 after However, provision trial. after the deleted issuance. did Defendant not On answer. legislature was reinstated July the trial court a rendered provision was carried forward in the judgment against default defendant. The enactment the TEXAS CIVIL PRAC- judgment was affirmed AND TICE REMEDIES CODE in 1985. appeals, presumably but was reversed and Therefore, us legisla- it is clear to that the remanded Supreme the United States ture intended for “judicial notice of the Court. and customary attorney’s usual fees and of file,” provided the contents the case appeals, The court of in its (page Code, in 38.004 of constitute some § 722) set out the three elements of a bill on which of attorney’s an award defendant, review which the in order may Consequently, fees be based. defen- appeal, successful in plead his must claim dants’ that there no evidence to prove. court, in affirming The support attorney’s the award of fees is judgment, court’s held that the trial court merit. without rendering judgment did not err in against hold that the court’s We award of (defendant) defendant because he “failed attorney’s plaintiffs’ fees plead prove a meritorious defense” legal. Gateway Coward v. National Bank by plaintiff. brought action The Unit- 859; Beaumont, 525 at S.W.2d Smith v. and, in Supreme disagreed, ed States Court Smith, (Tex.App. 757 S.W.2d 422 - Dallas effect, Ap- held that the Texas Court of opinion); as of date this peals’ ruling judgment default ren- Co., Inc., Bethel v. Norman Furniture against party dered who has not (Tex.App. S.W.2d been [1st - Houston opin no writ as of date of this timely Dist.] served citation notice of the ion); Flint & Associates v. Intercontinen (absent brought against action him an an- Steel, Inc., 626; Pipe tal & S.W.2d pleading appearance), swer or absent Wolfe, Ho v. defense, proof of a meritorious violates 1985, writ); -Amarillo Bethel v. Butler process. constitutional due Co., (Tex. Drilling require Peralta does a reversal and App. writ ref’d Dist.] [14th - Houston It differs from the remand this case. point of Defendants’ fifth error is respects. case at bar in several First: overruled. Peralta, of citation untime- the service judgment of the trial court is af- case, timely. ly; in the instant it was Sec- firmed. Peralta, ond: in defendant did not file default

ON MOTION FOR answer before the APPELLANTS’ rendered; REHEARING here, filed an answer was rendered. before the default in their motion rehear- Peralta, provisions Third: in notice ing, contend that were denied due *10 involved; in 21a appeal, con- us in this the case before circum-

trolling is whether under the issue

stances, trial-setting to defen- notice of the prior to the time

dants’ record relieved and released as attor-

that he was notice to defen-

ney of record constituted for the case was set

dants that Peralta, Fourth: 18, 1987. review; way

appeal of bill by way of writ appeal case the

present requirements and error; procedures, appeal in an bill review

avenues are appeal by

in an writ of error different. carefully considered defen-

We have rehearing. for We adhere

dants’ motion decision, original

our rehearing is The motion for this case.

denied. is af-

The of the trial court

firmed. PROCTOR, Appellant,

Ervin Dewitt Texas, Appellee. STATE

No. 05-88-00316-CR. Texas, Appeals

Court

Dallas. 3, 1989.

Feb. Dallas, Nation, appellant.

John Noble, Atty., Dist. Asst. Poppoff Patricia Dallas, appellee. HOWELL,

Before McCLUNG ROWE, JJ.
HOWELL, Justice. trial, court con- After a bench unautho- Ervin Dewitt Proctor victed