*1 ble, and, seized, without the evidence so

remaining evidence would insufficient to Appellant

support conviction. does not challenge standing

have there whether probable issue cause to the arrest war suspect

rant since she was not the named warrant. See United v. States (5th

Hunt, Cir.1974), F.2d 931 cert.

denied, 1974, 421 U.S. S.Ct. Thus, (1975).

L.Ed.2d the evidence pursuant

seized to the warrant was admis find

sible. We the evidence sufficient.

Reversed and remanded. GLASSCOCK, Appellant,

Leta J. VENTURE,

CONSOLE DRIVE JOINT

Appellee.

No. 04-82-00615-CV. Texas, Appeals

Court

San Antonio.

July 1984.

Appellant’s Motion for Rehearing

Granted Sept. 1984.

Appellee’s Rehearing Motion for Sept.

Denied Reed, Fields, Siegel D.

Robert Randall H. Fields, Antonio, for appellant. & San *2 Appellee of facts. Antonio, agreed statement Scott, appel- on an Stephen T. San open in following stipulation made the lee. true and are the exhibits court: “[T]hat DIAL, ESQUIVEL, REEVES and Before stipu- and instruments copies of correct JJ. matter contained to the truth lates of (Empha- them.” every one each and in appellee’s OPINION ours). of the exhibits One sis detainer which forcible petition for verified REEVES, Justice. “consistent that: contains the statement judgment a appeal an from This is Agreement, Lease of the the terms with plus the awarding past a lessor due rentals option its [appellee] has exercised Plaintiff ” for the present of future rentals value Judgment was terminate the lease.... to unexpired term of a lease. jointly and parties against both entered reveals agreed An statement of facts rentals. severally for future lease was a that on November one, contends point in of error appellee and Glas- entered into between appel- shows that undisputed evidence Outlets, provid- The lease Inc. scock Wine agreement was guaranty of the lease lant’s ed, sums due “payment of all rents or other alteration due to a substantial nullified Wine Out- hereunder Lessee [Glasscock shows that when the lease. The record lets, [appellee] is uncondi- to Lessor Inc.] Inc., Outlets, in fell behind Glasscock Wine tionally guaranteed by LETA J. GLAS- accepted a payments, its rental SCOCK, individually, hereinafter called Wine Out- promissory note from Glasscock Guarantor,” signed by Leta Glas- and was lets, Inc., partial satisfaction for as scock. Appellant payments. was past due rental (20) negotiations. twenty party to these The of the lease was not a term years, an to for two with renew juris applies rule of strictissimi The (10) years Rent was terms of ten each. strictly con guaranty agreement; it is to a $4,333.33 per plus month taxes and insur- beyond its not extended strued and will be ance. or im by either construction precise terms 9, 1981, lessee, By July Glasscock Wine First Bank plication. Reece v. State Outlets, Inc., (Tex.1978); Denton, in in the amount was default Inc., $24,067.31. Co., agreement An reached Virginia Mirror McKnight v. lessor, (Tex.1971). taking of a whereby appellee, accepted a cash- The 463 S.W.2d 428 $10,160.86 of time operates in as an extension ier’s check the amount of new note indebtedness, $13,906.45, original C. payable payment of the promissory a note for Supply Corp. v. First Meter in installments with interest at & G. Coin twelve 13% Conroe, 413 S.W.2d National Bank in per in of the due annum satisfaction (Tex.Civ.App. subsequently fell behind rentals. Lessee — Eastland n.r.e.), why no reason and we see writ ref’d and the payments on the note on both past due rental acceptance of a note for Appellee, payments under the lease. rental an also considered payments should not forc- delinquency, filed a response in to this payment. extension of time for to re- justice detainer action in court ible Outlets, Inc. from Wine move Glasscock long rule in this State It has been the in premises. Appellee was successful payment will of time for that an extension regained possession. this endeavor and rationale guarantor surety, or release a being as follows: stated Thereafter, instituted this lawsuit was surety, any right of the at from It is rent district court to recover back debt, maturity to Outlets, after the of the ap- time Inc. and both Glasscock Wine it, princi- proceed against pay granted pellant. A trial amendment was right impaired pal indemnity. This recovery of appellee to allow it to also seek contract if the creditor enter into a valid submitted future rentals. The cause was principal for an delinquency, with extension of notice of such or shall re- payment. The obligation time any main in deault under con- other [sic] surety strictly limited to the period terms of this dition of lease for a contract, any agreement Lessor, his valid days written or after notice principal, the creditor and the between person should other than se- Lessee *3 by position changed which his for premises, any the possession cure or of worse, discharges his liability. For thereof, this part by any of reason receiver- universally it reason held that a con- ship, other bankruptcy proceedings, or two, binding tract between the which is operation any of law in manner whatso- law, by principal in which the secures an ever, option, may Lessor at its without time, surety, extension of releases the Lessee, lease, or notice to terminate this provided surety party has not become alternative, may in Lessor reenter and by consenting to the transaction thereto. possession premises take of said re- and persons property move all and there- 578, 579-80, Phipps, v. 87 Tex. Benson 29 from, 1061, being guilty without deemed of (1895). S.W. 1061 See also Gardner Watson, 25, any trespass, of (1890); manner and relet the v. 76 Tex. 13 39 S.W. thereof, premises any part or all or Savings Commerce Association v. GGE Co., (Tex.Civ. any part term, of 539 the remainder of Management S.W.2d 71 said Lessor, App. Dist]), party satisfactory to a to at on [1st —Houston modified grounds affirmed, monthly other such may rental as Lessor with (Tex.1976); Sup diligence 862 & G. Meter C. Coin reasonable be able to secure. ply Corp. v. First National Bank in Con Should Lessor be unable to relet after roe, (Tex.Civ.App.— so, 413 S.W.2d 151 reasonable efforts to do or should East- 1967, n.r.e.); land writ ref’d 27 TEX. monthly such be rental less than the § (1961). Guaranty JUR.2d 49 obligated rental pay Lessee was to under lease, any thereof, plus or this renewal case, We can find no Texas how expense reletting, then Lessee ever, whether, which decides issue of pay deficiency shall the amount of such us, inas the case before an extension ours.) (Emphasis to Lessor. payment only portion time for a of the original obligation guarantor releases a in If a lessor elects to terminate a not, We think toto. and limit the release to lessee, by lease some due to default a portion that of the debt for which time may lessor not then recover future rentals payment was extended. See Holcombe from the v. Kelley lessee. Rohrt Manu Inc., Solinger Sons, (5th v. & 238 F.2d 495 Co., facturing 162 349 95 Tex. S.W.2d Cir.1956); Long, Klein v. 27 A.D. 50 (1961); Co., Inc., Boy, Taco Inc. v. Redelco (N.Y.App.Div.1898); N.Y.S. 419 see also 38 (Tex.Civ.App. Corpus 515 319 S.W.2d — § (1968); Annot., Guaranty AM.JUR.2d 92 1974, writ). Thus, Christi no if the sworn (1960). ap 74 A.L.R.2d holdWe appellee’s pleadings statement in justice in discharged pellant guaranty of her court, exercising option that it was its to only extent of those due rental lease, judicially appel- estops terminate the payments by evidenced the note. denying terminated, lee from had lease judgment against appellant is errone error, point in third her ous insofar as it awarded future rentals. contends the statement of that it “has exercised its to terminate the judicial The doctrine of estoppel is lease,” judicially estops appellee from re- theory party when that a has made a covering appellant. future rentals from sworn in statement the course judicial agree. We proceedings, they may not be heard after provided lease in question per- The its contrary position a ward to maintain absent part: tinent proof earlier that the statement was made mistake, If Lessee shall or inadvertently allow the rent to be in fraud du or Knox, days arrears more than 10 Long after written ress. Tex. Glas- (1956); appellant as to Deusen v. Con be reversed both Van S.W.2d Co., 514 Outlets, Insurance cannot necticut General Inc. This we scock Wine Life (Tex.Civ.App. Worth S.W.2d 951 appeal filed an Only do. Leta Glasscock —Fort writ). 1974, no only appel- is the Consequently, she bond. party estopped merely by the fact [A] lant before us. alleged in his having or admitted to ascertain We are unable pleadings proceeding in a former under for which of rentals record the amount sought contrary oath the to the assertion thus re- responsible and must appellant is necessary to made ... it is not [and] court for that case to the trial mand this party invoking this doctrine our Appellant, in view of determination. party should have been a to the former one, has no point of error determination proceeding. liability the note rentals due before *4 Knox, at 295. Long supra, brought the lease cur- and cashier’s check only sworn Here we have not Additionally, appellant, in view of rent. prior proceeding also statement at a but three, disposition point of error has our stipulation present case that the from the liability no for future rentals facts, these we statement was true. Given Outlets, Inc., date Glasscock Wine vacated conclusively hold that it was established appellee’s premises after termination that the lease had been terminated and is, however, liable for the the lease. She appellee offering precluded from con rentals which accrued these dates. between Knox, trary testimony. supra. Long v. judgment the trial Accordingly, the ap- Appellee contends the that statement court, appellant, insofar as it relates to pellee has “exercised its to termi- Glasscock, Leta J. is reversed and remand- lease,” unequivocal nate the is not a clear disposition in ac- ed to the trial court for they indication that waived their claims for opinion. cordance with this true, may future rentals. While this certainly the statement is clear and un- Rehearing Appellant’s Motion On for equivocal appellee lease that considered the Appellee’s Motion and On terminated, precludes the effect of which Rehearing for recovery Additionally, of future rentals. judicial estoppel contends was not PER CURIAM. plead may for the first not be raised Glasscock, appel- Leta J. appeal. quote appellant’s time on We Venture, lee, Console Drive Joint each have pleadings: rehearing. filed a motion for your That Defendant would show that rehearing Appellant’s motion for re- by giving Plaintiffs said Notice of Evic- modify judgment quests this court to our tion, Complaint followed their judg- and remanded the which reversed thereon, Judgment Forcible Detainer and and, thereof, ment of the trial court in lieu your Plaintiff elected under the terms of pursuant lease, judgment reverse and render

the lease to terminate the which or about TEX.R.CIV.P. 434. The remand was for termination became effective on October, Having day the 9th purpose ascertaining the amount of lease, your terminated said Defendants appellee in rent and taxes owed accordance deny is entitled to addition- that Plaintiff ruling. agreed with our A review of the 9, 1981. on and after October al rent parties statement of facts reveals that the indeed, If, any pleading required, stipulated we to the rent and taxes for the as Point of error appel- the above sufficient. deemed period hold of time in which we because of our need not be addressed two taxes. The sum lant liable for the rent and points one and three. disposition of $6,554.43. are of the stipulated We merit brief, opinion appellant’s motion has in her that appellant, that re- We note judgment of the trial court modified. judgment and that should be quests that opinion We further appel- are that rehearing

lee’s motion for is without merit

and should be denied.

Accordingly, judg- it is ordered

ment of trial court be modified and that

appellee, Venture, Console Drive Joint re- appellant,

cover of and from the Leta G.

Glasscock, $6,554.43 sum as rental

damages, future, both and that as

modified, judgment the said trial September 10,1982,

court dated is herewith

affirmed.

Eugene MILLER, Appellant, Texas, Appellee.

STATE of

No. C14-83-114CR. Texas, Appeals

Court of (14th Dist.).

Houston

July Houston, Charlton, appellant.

Michael