*1 overruling court erred ROBERTS, Before ODOM and CLIN- for mistrial. motion TON, JJ. cause is The is reversed remanded. OPINION
ROBERTS, Judge. ODOM,J., dissents. guilty burgla- found ry of a vehicle. The trial court sentenced years’
him to ten confinement. following appellant complains attorney remarks made prosecuting during at the or inno- jury argument guilt stage
cence of the trial: * * * HARDMAN, Appellant, Steven HARMON:
“MR. Mr. is a crimi- Scheve [defendant’s counsel] lawyer.
nal defense doesn’t have Texas, He Appellee. The STATE of I do. He duty represents same No. 66474. his duty His see that criminal. gets putting client if it off even means Texas, Appeals Court Criminal lying. on witnesses who are No. 3. Panel Honor, we “MR. Your SCHEVE: March to that. object 15, 1981. Rehearing Denied objection. “THE I sustain the COURT: duty duty. That is his not his ly-
put witness that he knows ing. furthermore, I
“MR. And SCHEVE: would ask for a mistrial. mistrial.
“THE I’ll deny COURT: jury have that’s not instructed a correct statement law.” *2 Tatum, Nacogdoches, appellant.
Paul Huttash, Atty., Alfred State’s Robert Austin, for the Walker, Atty., Asst. State’s State. *3 DAVIS, McCORMICK G.
Before TOM TEAGUE, JJ.
OPINION DAVIS, Judge.
TOM G. revoking order taken from an Appeal is probation. 2,1978, before the in a trial
On plea court, upon convicted his appellant was Punish- of a vehicle. guilty burglary On probated. years, at 2 ment was assessed 1978, a motion to filed October the State the same probation. On appellant’s revoke filed, a war- revoke was the motion to day arrest. was issued for rant to re- hearing on the motion court held a proba- Appellant’s 1980. voke on of the was revoked at the conclusion hearing. original his appellant contends
Initially, He maintains conviction is invalid. guilty his accepting plea court erred read or se- having the indictment without reading. curing a waiver of such part: recites judgment in this case guilty pleaded and the Defendant ... “... indict- charged to the offense to the objection There was no ment. ...” matter record. This approval appeal. in this the first time raised for 26.11, V.A.C.C.P., as fol- provides lows: having been
“The name of the accused called, spoken as is suggestion, such if no Articles, be preceding four of as made, disposed being or made directed, shall the indictment before read, whether the defendant asked not, charged.” as therein guilty he is Tex.Cr.App., Clardy v. con- presented a defendant presented and it that now tention similar to was stated: “Next, appellant urges that the trial The record from plea of guilty pro- court erred in plea his accepting guilty ceeding reflects as follows: having without the indictment read to “THE right. COURT: All In view of him and securing a waiver of your plea guilty and the evidence the— reading. such He cites and relies showing you’re will guilty, Court find 26.11, V.A.C.C.P., Article and Johnson v. you And, uh, First, guilty. say let me — 118 Tex.Cr.R. range this. You’re familiar with the punishment, you I don’t believe I’ve told “The clearly case at bar this, range are familiar with the reflects that after by jury waiver punishment? Burglary In the case of the appellant arraigned open ‘was and in a Vehicle it is time of not less than two pleaded guilty charge nor more than ten a fine of years tained in the indictment.’ Such instru- $5,000.00or both fine imprison- such *4 Court, ment further reflects ‘The having ment. If you didn’t understand that you read, heard the indictment the defend- now would want your plea to withdraw thereto, ant’s plea the evidence sub- of guilty you do explain so. didn’t mitted, and argument of counsel you. that to it and you You understand * * *’ thereon still plead guilty? want to Yes.” “THE DEFENDANT: “If the recitations in the accepting plea Prior to of guilty, parts of the were record not cor- the court is to admonish the defendant of rect, then we objection observe no the range punishment attached to the approval of the record was offered 26.13(a)(1), offense. If supra. Art. the rec appellant. We further call attention to ord affirmatively does not show an admon the provisions 44.24, of Article V.A.C.C.P. range punishment, ishment as to the (Presumptions on Appeals) require guilty plea is invalid. McDade v. this Court to presume, among other Tex.Cr.App., 562 S.W.2d things, arraigned that the defendant was pleaded that he to the indictment Although gave appellant the court unless such an issue in matter was made accepting his plea, admonishment after below, the court or unless it affirmatively record further reflects that appears contrary from the record. See given option withdrawing Boening v. [Tex.Cr.App., plea following the belated admonishment 469], supra. range Appellant on the punishment. “We find from what has been said that persisted in entering plea guilty. Un been compliance with Article circumstances, der such we find the court 26.11, supra, contrary con- giving with substantially complied the re tention.” Id. and 537. quired Whitten admonishment. See We conclude that the record in the 156; State, Tex.Cr.App., 587 S.W.2d Art. instant case does support appellant’s not 26.13(c). concerning alleged contention an violation contends the Finally, appellant 26.11, Moreover, of Art. supra. in Reed v. revoking proba abused its discretion in his Tex.Cr.App., 500 S.W.2d it was tion. He maintains that the revocation held that a contention as that now such expiration held after presented may not be raised the first be probationary time on term was unauthorized appeal. appre cause of a lack effort to diligent of a Appellant original plea next contends his filing hend him of motion following the of guilty is invalid. He maintains the court to revoke. failed to admonish him on properly range of punishment compliance State, Tex.Cr.App., with Cotton v. V.A.C.C.P. the Court stated: fees, arbitrary appointed attorney’s do “Although “Pay we not condone a Court proceedings, law, we do delays cost, in revocation provided by as assessed as preserve reiterate that to such contention of $50.00 the sum of at the rate $250.00 it is incumbent commencing day on the first per month such hear- develop raise and the issue at next month of the date ing to review.” appellate secure the first day and a like sum on all his contention until of said Appellant did not raise of each month thereafter full; concerning a lack before diligence cost, inas- fee, paid assessed as Therefore, hearing. the revocation during Hartman, he, paid much Steven preserve alleged he has failed to error eight months.” period over a $0 in that it for the first be raised that he Anthony Chaviers testified time We find this contention to appeal. Nacogdoches County. probation officer be without merit. Chavi- probation, After challenge the suffi- Appellant does not the terms conditions ers discussed ciency support the evidence to the court’s did not probation with him. Chaviers Nevertheless, revoking probation. order because the supervise appellant’s probation the dissent would reverse the revocation transferred to reporting requirement was unassigned order on error the basis of was informed County. Appellant Harris theory employing estoppel under regard contacted that he would be tract law. *5 report he was to when and with whom pro- appellant’s The record reflects that Department. County Probation the Harris failing bation was revoked for to: he was the Richard Brice testified Department “Report to the Probation Judi- for the 145th chief officer monthly in between the 1st and writing introduced a The cial District Court. month, in person 10th of each day request copy placement of an intrastate so; to do inas- days within ten of notice County Proba- sent Brice to the Harris he, Hardman, much as Steven did Lyle 24, The Department April 1978. tion report person writing fail to in and in 1978; 1978; to be March, appellant’s probation April, request was for the months of restitution, 1978; June, 1978; 1978; Houston, all May, July, supervised Au- in 1978; 1978; gust, September, by appel- be mailed fees and court costs to County Probation Nacogdoches lant in to the “Pay the cost of Court in this cause of Department. copy of a letter days Finally, sum within 60 from the $65.20 he, of was in- judgment; date inasmuch Houston appellant Brice sent to in Hardman, of Lyle Steven a total paid $0 letter is dated troduced into evidence. The months; period eight over a of 1978, appellant to instructed Probation De- County fee in sum of “Pay $15.00 contact Harris per provided month as law in Article May 8 and partment between 6A, of Section of the Code Criminal he was an adult Zama testified that Peter Procedures, day on the first commencing in Zama stated probation officer Houston. the next month from the date Nacogdo- request that he from day of judgment, and on the first each appellant’s probation County ches the term of this during month thereafter County Probation supervised by the Harris he, probation; Lyle inasmuch as Steven Department. appellant in- Zama wrote Hardman, paid period eight over a $0 report time to forming him of a date and months; but, proba- reported never appellant sum “Pay restitution the total July department in Houston. per month at the rate of $25.00 $25.00 appel- supervision attempted commencing day on the first of the com- terminated. lant in Houston was he, month, inasmuch as Steven ing he had been a Brett Walker testified Hardman, period eight paid over $0 Nacogdoches County. months; officer in fee, month appellant Walker wrote to in Houston on restitution in the 7, 1978, August and informed him that he attorney’s amount of $25.00 $250.00 proba- be considered in violation of his fees at the rate a month. The $50.00 tion by failing report to the Harris Coun- admitted, objection, ty Probation Department. Appellant styled a document “Probation Record” instructed to contact a officer appellant’s probation by maintained for Houston within 10 days of letter. Depart- County Probation spaces ment. The record contains for writ- evidence thus reveals that required ten entries to be when recorded was instructed on at least four occasions to probationary payments were made. The report to a officer in Houston and record introduced does not contain en- that he never did so. The dissent would indicating by appellant tries payment report excuse failure to in Hous- fees, required costs or restitution. ton because there is no to show evidence ever received the letters pay record con- The dissent maintains the Brice, from Zama and Walker. stitutes “zero evidence” because rep- document testimony no as to what the When a letter or mail mat represent. resented or purported ter is and mailed with properly addressed record was not dissent contends that postage prepaid, pre there is a rebuttable proof must be self-proving and that there sumption of received by fact that it was patently apparent as to its contents. It addressee as soon as have been it could that the the issues dissent confused ordinary transmitted to him in course of proba- of the record and the admissibility the mails. National Aid Life Ass’n v. Dris once admitted. tive value of the record kill, (Tex.Civ.App . —East case, land writ). no In the instant consti question The record ap there was no evidence to indicate that under the tutes an official record admissible pellant never received the letters. 3731a, regard terms of Art. With V.A.C.S. *6 therefore the letters were in presumed that record, it was admissibility of that by appellant fact Houston. predicate the self-proving not in terms of Moreovér, solely ig to focus on the letters which should be established for its introduc verbally nores the fact that in Chaviers However, into there was no tion evidence. appellant concerning reporting structed the the State’s failure objection by appellant to requirement in Houston. pay to The record lay proper predicate. the appeal, not raised in this Although value probative as admitted therefore had we find the supports evidence the court’s proceeding. probation in this revocation order for revoking appellant’s probation State, Tex.Cr.App., 600 Frazier v. Moreover, failing to rule in this report. the constitutes 271. The record itself is government State is that when a unit of recited non-facts evidence of the facts or exercising governmental powers, its it is Practice, Texas Ray, therein. 1A R. subject estoppel. not to of Hutchins v. City (3rd 1980). pay the ed. We conclude Prasifka, (Tex.1970). appellant finding that supports record the The dissent further maintains that the fees, costs and required pay failed to the support the evidence is insufficient is abuse of discretion restitution. No revoking probation appellant’s court’s order pro appellant’s shown in the revocation of the failure to four violations other than bation. above, does not report. appellant As noted The is affirmed. challenge sufficiency the of the evidence support the revocation order. TEAGUE, dissenting. Judge, probation
The conditions of
order of the
an
required
appeal
him
court costs of
This is an
from
pay
$65.20
probation.
revoking appellant’s
within 60
of
trial court
days
$15.00
(3)
2, 1978,1
capias
A
or warrant
arrest issued
appellant
On
was
by the
placed
probation
years
on
for two
day.
on the same
judge
then
of the 145th Judicial
presiding
not, however,
(4)
was
arrested
Appellant
Barlett,
Court,
who
District
Hon. Thomas
9,
April
until
was
sitting
presiding
then
for the elected
16, 1980,
(5)
April
was held on
hearing
A
5,
judge, Hon.
On
Jack Pierce.
October
was re-
appellant’s probation
which
after
1978,
B. Hancock district
the Hon. Herbert
voked.
application
filed an
for revocation
attorney,
satis-
Thus,
question,
Pierce,
probation
who then
Judge
with
elements
re-
necessary
fied
four
to issue for
ordered a warrant
arrest
proba-
term of
probation after the
voking a
1980,
9,
the warrant
appellant.
April
On
remains:
expired.
question
placed
was
was
appellant
executed and
attempted to
diligently
whether the State
County jail.
hearing
A
filing
after
prosecute the motion to revoke
on
April
held
after
arrest
warrant of
of same and after the
Judge
appellant’s probation
Pierce ordered
e.,
effort to
issued,
diligent
i. was
revoked.
apprehend
between October
jurisdiction
Appellant
questions
first
9, 1980,
approximately
hold
revocation
months?
hearing
had
because
term
violation of
expired
Ordinarily,
alleged
where an
hearing.
at the time of the
proba-
term of
within the
probation occurs
Where
Court
confronted
tion,
capias
of arrest or
warrant
revoking
probation,
order
after
probationer,
for the arrest
issues
expired,
term of
issue
hearing
unduly
de-
thereafter
properly
appeal,
drawn
revoked, even
layed,
revoked,
following
nevertheless be
if the
has or would
though
the term of
are proved by
elements
the State.
hearing.
expired
have
at the time
(1)
The motion to revoke
filed
record that
no
from this
question
There is
probation;
the term of
hearing
speedy
was accorded
(2)
capias
A
within the
warrant or
issues
from the date of his arrest
term or
probationary
period;
week from that
exactly
one
conducted
pros-
(3)
diligently attempts
The State
However,
see Lynch
date.
revoke, including
ecute the motion
mere fil-
(Tex.Cr.App.1973),the
S.W.2d 740
appellant;
apprehension
with-
ing
probation,
of a motion to revoke
(4)
oc-
alleged violation
more,
revoking
out
an order
will not sustain
*7
pro-
the
the
prior
expiration
curred
intervening
Barring any
the probation.
bationary period; and
causes,
probation
has
when the term
(5) The
a
trial
holds
revocation
over
jurisdiction
the
court’s
expired,
hearing
delay.
undue
Thus, it ap-
the
is terminated.
State,
(Tex.
See Zillender v.
jurisdiction
subject,
(1955);
over the
727
probation-
S.W.2d
Bobo v.
479
hand,
er.
theOn
if it is shown there
(Tex.Cr.App.1972);
S.W.2d 947
Bryant v.
delay
not an unreasonable
in either
(Tex.Cr.App.1973);
S.W.2d
regard,
is,
the execution of the war-
(Tex.
and Coffey v.
rant or
hearing,
ques-
then there is no
Cr.App.1973);
see also Texas Digest,
regarding
jurisdiction
of the trial
982.3,
Key
Criminal Law
cases col
court to revoke
even after the
lated thereunder.
Thus,
term of
expired.
it is
The
reliance on
v.
State’s
Strickland
incumbent
part
party
seek- State,
(1975),
Tex.Cr.App.,
gations of technical violations connec- limitations. by statute of Application tion with five matters. The fact by here does with the quarrel to Revoke file bears the clerk’s mark of nothing the record did 5, 1978, appeal agents on its reflecting ap- October a fiat from of arrest issued plication was the District the time the warrant presented to sum, on same there is provides Court said date. The fiat for until was executed. what, if nothing show-cause to be set on Novem- show by this record to 7, 1978, p. ber at 1:30 m. The order of ar occurred with the warrant anything, provides further for the clerk to issue a what members rest in this interim. I find shows that capias. The record further unanimously of our said Supreme Court was issued clerk’s warrant for arrest Thomas, Rigo Manufacturing Company on 1978. The officer’s return October (Tex.1970), appropriate Butler, shows it was executed Dora of this cause as applicable disposition deputy Lightfoot, John Sheriff of hold that ground to this of error. I would Texas, Nacogdoches bearing a County, application to filing the mere of a motion or on return that the instrument came hand interrupt revoke will not or toll 9, 1980, April and was executed on probation, but to running of the term of 9, 1980, arresting the said De- proba interrupt running of the term placing fendant at him tion, *8 procuring the diligence the use of Nacogdoches County jail on required execution of the arrest warrant 9, 1980. is a why and For reasons this mandatory. Couch, law, Tex. good rule of see Buie v. appears This to me to also be a case of 565, Waco, (1939). 566 Civ.App., 126 In S.W.2d impression point. first on this addition law, find, of I would therefore as a matter Lynch, supra, the reader is directed to 562, satisfy failed in this cause to McBee v. 316 that the State 166 Tex.Cr.R. or due showing its burden in reasonable (1958); Pollard v. warrant of 39, (1962); Ex diligence Tex.Cr.R. the execution Fennell, ap sustain parte appellant, 126 Tex.Cr.R. 284 arrest for and would tions, me.” to the error for this rea contact addition pellant’s ground first of son order reversed and letters, and would the case also sent a Mr. Brett Walker above appellant. judgment rendered in favor 7,1978 L. August to “Steven a letter dated Hardman,” per “As our letter which stated: as a Although by appellant not raised report you dated were 4/24/78 error, issue in ground of there is another Department.” County Probation Harris this cause that should be considered have not justice, they me that “They interest see Sec. have notified V.A.C.C.P., and I do so. whatsoever.” had contact with any 10 days.” report to them “You are was dispute appellant There is no a viola- do considered “Failure to so 2, 1978, on placed probation.” tion of your given is no he was certain dispute there date, on that conditions Officer Zama, Probation Peter an Adult no he and was dispute assigned District Court assigned to the 174th Judicial by interviewed a officer on that Texas, he re- testified County, in Harris day, pro- same and was admonished letters, he also never above ceived the bation officer to with the conditions comply he although had met personally appellant, However, probation. apparently March, 1978. appellant “contact” with relationship end any between when occurred apparently This “contact” Chaviers, appellant Nacogdo- and Mr. Lyle he, too, wrote a letter to “Steven officer, ches County probation for Chaviers did not he Hartman,” but at the he appellant testified never thereafter saw correspondence nor such any have person. “I case.” This transferred the he a letter did he know when mailed causing “transfer” consisted of Chaviers subsequently He Hartman.” Lyle “Steven Brice, Mr. Richard Chief Probation Officer “Nacogdoches County wrote letter to the to write a letter to County, He thereafter Department.” Probation Street, one Frank J. Keegan at Caroline Lyle Hartman.” file closed his on “Steven Floor, 77002, and, Houston, Texas, 2nd among things, other the letter is entitled in- that when he Chaviers also testified “Intrastate Request,” Placement he he told terviewed requested investiga- states: “It is that an “uh, for desired anywhere could live he tion accept- be made with a view toward purposes, other employment purposes or supervision.” ance of this case for and, uh, a letter from that he should receive record nowhere reflects who or what Kee- “Also, department us.” Though gan represents. be or who he receive letter jurisdiction would in that personally Keegan know Frank head be in the letter instructions would and the Depart- the Harris Probation County Adult report.” as to when to ment, permit the law does not me to take counsel hearing, appellant’s During the judicial McCormick notice of fact. See question of whether continuously raised ed., Evidence, Practice, Texas 2nd Ray, delegation there had been an unlawful 151, p. 170. also states: The letter whether there court or power by “Mr. Hardman has been instructed to power exercise was an unlawful the week of probation department tact your employees. probation department’s Brice sent a let- May 8th-May 12th.” also Judge nor Bartlett undisputed that neither same day, April ter dated the Pierce, judge Judge nor Hartman, 110 addressed “Steven granted appellant per- matter, orally ever Houston, Texas,” stating: “Dear Bagby, Houston, much less go anywhere, mission to County Proba- the Harris Steven: Contact Texas, although the written County, Harris 8th-May May the week of Department signed by Judge Bartlett formal courtesy supervi- 12th for consideration of and with- does “Remain a resident state: sion” are located at 401 Caroline “They *9 Texas; of Tex- Houston, Harris of the State Floor, in the limits of Street, Phone: 2nd depart by as, to ques- you permitted “If are you 713-229-9661.” have unless delegate this to a offi Department.” authority probation the Court and/or Probation Appellant personally copy cer or else. McDonald v. anyone Nacogdoches instrument. Apparently, (Tex.Cr.App.1969); DeLeon judgment also County copy the formal (Tex.Cr.App.1971); 466 S.W.2d of probation.” constitutes the “conditions (Tex.Cr. Kuenstler v. on original proceedings About all the show 42.12, 5 and App.1972); and Secs. Bartlett, point Judge this is that after com- V.A.C.C.P. pletion punishment proceed- of the plea proba- only appear Not does it ings, “go proba- told with the appellant rule, all forgot officers below this but tion tion officer.” overlooked parties appear below to have So, record, following: from I find the this V.A.C.C.P., pro- 9 of Art. which on
(1) placed probation. Appellant reasons, “If, vides: and sufficient good resi- (2) go change He is to with their by probationers told the trial court desire may officer. transfer dence within the such supervis- to their by application be effected (3) He receives a of the written officer, transfer shall ing probation which, things, among subject subject to court’s consent tells him to “remain a resident and as may require regulation as the court limits Harris such officer Texas.” absence of a is trans- probationer locality to which the (4) officer tells absolutely no There should be ferred.” he desired for anywhere he could live provision question from this record purposes. or other employment purposes There cause.2 with in this complied was not (5) wrote a let- Another officer original is not a scintilla of evidence him to Keegan requesting ter to a Frank of- ever proceedings to show “with a view to- investigation make an Nacogdoches from transferred ficially for supervi- ward of this case acceptance Department The Probation County. sion.” officially accepted ap- County Harris never (6) Lyle A letter addressed to “Steven pellant probationer. telling person Hartman” was sent who officer and not some County Probation “contact” the Harris trans- probationer decides whether the “for consideration of a cour- Department are condi- fer, his actions and even then tesy supervision.” being accepted probationer tioned (7) saying sent Another such letter was department. receiving by “report” to the Harris person County Department. Probation by the writ- Here, is told Officer (8) County A Harris Probation as a “Remain that he is to ten Hart- wrote a letter to also “Steven of Harris of limits resident and within the man.” Texas, permit- are unless the State (9) All of letters were sent non-cer- these Proba- and/or depart by ted to the Court by were received they tified and whether person- then Appellant Department.” or returned is Lyle Hartman” “Steven County pro- meets with a ally adduced testimony not shown he never saw officer, who testified bation this record. “I transferred appellant again because: to, presumably, Letters are sent case.” appear All of in this cause parties Depart- Probation Adult County Harris only sight of the fact have lost make ment, they if would asking them of the case having jurisdiction trial court ac- if would later investigation they to see fix the term and condi shall determine and When probationer. as a cept appellant tions of The trial court probation. affirmatively jurisdiction, parties, the record should er and the If it is the intention of the this, court, not. person placed this record does show the time a trial probation, transferred to anoth- that he shall be *10 fruitful, Q term prove right, not All sir. believe that and investigation their did case,” judgment is that the too, presuma- the in that they, “transferred condition received, not is that bly Nacogdoches, back to but until hear- himself Defendant revoke, ing appears on motion it that to correct? from the time “transferred” A Yes. case, nothing had office uh, tell, Q Defendant you Did also further do case. to with the to he had writing that verbally and in court, was relationship $65.20 cost pay
It has been said that
date of the
sixty
from the
probationer
days
between the court and
McDonald,
nature,
supra,
judgment?
contractual
see
therein,
and
condi-
the cases cited
and that
A Yes.
clearly
tions of
should be
set
Q
Did
tell the Defendant
you also
granting
forth in the
and order
he
one,
Lyle Hardeman
Mr. Steven
probation so the
probationer and
au-
provided
per month as
pay
was to
$15.00
what the
certainty
thorities
know
by law in this cause?
Therefore,
conditions are.
based
A Yes.
law,
tract
I find
its
estopped
the State
tell him
Q
right,
you
All
Did
also
sir.
“contract,”
claiming
actions toward the
amount
he
pay
had to
restitution
report.
City
to
appellant failed
per
month
$25.00
at a rate
$25.00
Lubbock,
Green,
(5th
Texas v.
Only by employee could anyone say representative or what this document stands for or what it personal contents, (c) knowledge of its means, missing, regard, etc. isWhat in this or near the time The record question. in is “testimony,” Roberts, Judge for as speak may memorandum be offered ing Court, for a said majority entrant, custodian, qualified or other wit- Gassett v. (Tex. 532 330 S.W.2d ness, though personal even he lack Cr.App.1976): 3737e, knowledge of its contents. Art.
[******] Sec.
Lumpkin
2. v.
524
S.W.2d
302
(Tex.Cr.App.1975).
3737e,
“Business” is defined
V.T.C.A.,
sets out the well-
broadly enough
4 to include the
Sec.
recognized
exception
“business records”
law
here-
agencies
enforcement
involved
hearsay rule. Subsection 1 thereof
Coulter v.
in.
states three
prerequisites
the introduc-
tes-
tion of a
(Tex.Cr.App.1973).
permits
relevant business record or
Section
timony
(a)
memorandum:
it must have been
record
as to the absence of such a
business,
made in the regular course of
or memorandum
would seem to con-
minimum,
represents
zero evidence.
only pre-
trol
at bar. The
the situation
requisite
3 to the introduc-
(Tex.Cr.App.
stated
v.
Salas
the non-
testimony showing
of such
Door
1966); and
Co.
Steves Sash
act, event, or
existence of an
condition
Antonio,
Intern.,
San
Tex.Civ.App.,
WBH
act,
must find that such
judge
hist.).
(no writ
(1978)