*1 560 aff'd). Sign Co. v. Do also Hoarel by arising the contract See
comprehended 140, Equity Corp., 910 S.W.2d minion payee impliedly The from the note. 1995, writ (Tex.App. 144-145 present right promises to surrender his —Amarillo denied). payment to immediate of the demand note, by represented indebtedness debt payment claim for of the Howard’s forego during suit the extension and to of limita- by was not barred the statute impliedly promises to period; payor first issue is overruled. tions. Suzanne’s matu- pay said indebtedness on the new CONCLUSION date, up with interest
rity together event, date, pro- the rate raised on Having overruled both issues McElwee, Dwight in the note. Each of these new and appeal by vided Suzanne Joham, the consideration R. promises constitutes favor of James contract, other, the Estate of binding Independent Executor of for the note, Joham, affirmed. the terms of the as Howard E. is embodying results. by agreement, modified the new MOTION OPINION DENYING 578, 29 S.W. Phipps, Benson v. REHEARING FOR 1061, Rep. In such a 47 Am. St. 128. that, complains in a case, Dwight Huían McElwee understand the rule be we affirmance of the rehearing for agreement fact that is motion despite the said action, creates a contractual oral, trial court’s order existing right of which This is the note, obligation where none existed. to the creditor under the accrued ap this issue on first time he has raised right that another relinquished, prior to to raise this issue peal. By failing does not accrue of action for the debt submission, presentation McElwee waived promise to him until the new complaint by this and consideration of Limitation pay debtor to is breached. 205, Chan, Morrison v. Court. against run does not commence to (Tex.1985); Eagle v. Langston the debtor’s new action to enforce Co., 612, Publishing per- pay, until the time for promise n.r.e.) (on 1986, mo App. writ ref d promise arrives. formance of the new —Waco Tex.R.App. P. rehearing); see also tion Adams, 94, 81 Tex. 16 S.W. Heisch 38.1(e). rehearing motion for McElwee’s 790; Arthur Rice Mill Co. Port is denied. Mills, 514, 105 Tex. Beaumont Rice 150 S.W. S.W. 148 S.W. 629. S.W. ap- legal principles are foregoing The words present case.
plicable to January, were agreement “carried anoth- “note” was to be MENDENHALL, Craig Emmett clearly imports language This year.” er Appellant, payment to extend the time of purpose by the of the indebtedness evidenced Texas, Appellee. The STATE of From this January 1928. note to 10-98-109-CR. No. constituting as agreement, extension respec- binding the does a new contract Texas, Appeals Court engagements, to new parties tive Waco. on arose. This of action declared cause Jan. barred of action has never become cause 22, 2000. March Rehearing Overruled limitation; Article 5539 of therefore apply. does not the statutes 835, 835- Simpson,
McNeill (Tex. opinion App.1931, Comm’n. *3 Schwieger, Law Office Stan
Stan Waco, appellant. for Schwieger, Atty., Gage, County/Dist. Robert W. Fairfield, for appellee. DAVIS, Justice Justice
Before Chief (concurring). GRAY VANCE Justice OPINION DAVIS, REX D. Chief Justice. Men- Craig convicted Emmett assaulting public servant. See denhall of 22.01(b)(1) (Vernon Tex. Pen.Code pleaded true to Supp.2000). Mendenhall alleged to en- prior felony convictions two that for an habit- punishment to hance his offender, him jury sentenced ual and the He imprisonment. sixty-five years’ that the trial court claims three issues jury on by: failing erred intoxication; failing to correct- specific “the intent ly charge assault”; and de- of aggravated element that his creeing in the written consecutively prior with a run sentence proper made a having without sentence the sentence pronouncement oral consecutively. In an additional run would issue, was one of the three that the statute Julie Morrison Mendenhall asserts Menden- deputies attempting to restrain permits which trial courts to order consec- him holding from be- hall. Morrison improper sentences constitutes an utive deputies got hind. When the delegation authority judiciary of this courtroom, “locked to the door provide adequate because it does not threw the door frame and he his feet into guidelines alleged “leg- for exercise of this trying to break free.” As himself back See islative function.” Tex.Code Crim. result, pinned right Morrison’s (Vernon Supp.2000). PROC. Ann. art. 42.08 action the door frame. This against hand the bones in Morrison’s cracked one of BACKGROUND right hand. Mendenhall’s former wife sued di- trial, sought At to establish *4 vorce while he was incarcerated in the these acts while under that he committed Depart- Institutional Division the Texas hypoglycemia, a condition the influence of ment of Criminal Justice. officials TDCJ abnormally low blood brought on an County returned him to for the Freestone diagnosed with sugar level. He had been trial. At the the divorce conclusion of and one-half weeks before the diabetes five trial, presiding judge, the Honorable jailer that he divorce trial. testified Jr., Black, pronounced H.D. how he in- accord- gave Mendenhall his insulin shots tended to divide the marital estate. Men- provided by ing to the schedule TDCJ. “agitated,” dep- denhall became and three jailer re- also stated that Mendenhall uties had to restrain him. He made an special ceived a diet because of his diabe- Judge obscene remark to Black who had tes. deputies him bring to the bench where hypo- According physician, TDCJ following occurred: glycemia can cause “mental confusion” and Mendenhall, THE COURT: Mr. I need can lead to conduct such as that demon- you certifying inform that will be by Mendenhall at the conclusion of strated this record and we will send explained physician the divorce trial. The Department Texas of Criminal Jus- sugar that a normal blood level is between go your tice. This will on record. However, if a diabetic re- MENDENHALL: on go my This will any- ceives insulin but does not “receive
record? eat,” sugar go his blood level will thing to Hypoglycemia occurs when the lev- down. THE go your COURT: This will physician el reaches 60 or below. The record. very “like a agreed that emotional stress (Mr. spit Black. Judge Mendenhall disagreeable divorce” can also contribute deputy simultaneously pressed Each to this condition. their free hand over Mr. Mendenhall’s by the On cross-examination deputies began removing mouth. The physician blood testified Mendenhall’s courtroom.) Mr. Mendenhall from the sugar level would have to have been be- Okay. THE COURT: Let the record tween 40 and 50 to cause the outburst just reflect that Mr. Mendenhall has demonstrated at his divorce trial. Medical me, spit go— and that will emergency records from Mendenhall’s MENDENHALL: Bitch! God damn following visit this outburst reveal room whore! sugar reviewing level of 113. After blood transcript THE re- and a of Menden- COURT: Let the record also these records resisting argument hearing flect that Mr. Mendenhall is hall’s final at the divorce (before outburst), physician gave deputies arrest. He has three out hypo- opinion who that Mendenhall was not trying the hall are to restrain his hearing. glycemic him. at the conclusion an insulin can usually Mendenhall that he re- testified that overdose of testified that, hypoglycemia. explained ceived his insulin shot between 3:00 and lead to He administered, morning 3:30 while at TDCJ and insulin is food must be once immediately that he was fed thereafter. appropriate an blood eaten to maintain trial, he morning On the of the divorce reviewing After Mendenhall’s sugar level. injection at Mendenhall received his 7:00. records, physician observed medical this ap- him jail gave testified that officials “chronically high has oatmeal, donuts, juice for ple, coffee and than the low blood sugar” blood rather morning. breakfast that He tried the oat- sugar hypoglycemia. level associated with meal, horrible, but “it was cold and tasted portions transcript of Based on juice and He drank coffee.” [he] [his] his emer- Mendenhall’s divorce trial and during recalled feeling “queasy” morn- records, physician ex- gency room this hearing, though of the divorce he could pressed opinion that Mendenhall was definitely not “contribute it diabe- [his] suffering hypoglycemia not from at the He did not recall what was served tes.” conclusion of the divorce trial. lunch, only a couple but he “ate of bites provided additional later of it.” He testimony about his diabetic condition. “kind testified the education he received from described *5 conclusion di- blacked out” at the prison newly-diag- about then officials vorce trial that afternoon: nosed condition as follows: passing It was like out. I could hear This incident in the courtroom with low people outside around me. I remember me, of sugar blood scared the hell out I being grabbed. coming remember be- I’ll, that and state for the record TDC I of standing then was front [sic] much as far really didn’t do too as edu- Judge the bench and Black was—was They gave cation on diabetes. me I un- telling something me couldn’t me, well, main thing dietitian and told it. derstand cookies, any don’t eat moon don’t eat know, everybody told you And later pies, nothing. don’t eat happened, going me what and I’m to be evidence, After the close of honest with I feel real bad about you, the court to requests submitted written happened Judge Black. That is what insanity and involun- jury instruct the I’ll my not normal demeanor. And be tary intoxication. The court denied both me; you, honest with it scared I mean it requests. I seeing my scared me. remember wife standing my step- in the courtroom with INVOLUNTARY INTOXICATION I couldn’t daughter, and remember Mendenhall contends his first issue breathe. by failing erred to instruct that the court rebuttal, physi- In called the the State of in- the on the affirmative defense in the emer- cian who treated Mendenhall re- voluntary intoxication. The State in Judge after his outburst gency room by intoxication sponds that: physician Black’s courtroom. This stated not in Tex- prescribed drugs recognized is reac- “many hypoglycemic times [a] as; charge did not requested Mendenhall’s He thought tion is to be drunkenness.” of the nature inform the court adequately explained symptoms hypoglyce- that the the evidence does not raise request; of his generally mia do not manifest themselves if it recognized; this issue is defensive Rather, period of time. in a short by the court’s Mendenhall was not harmed usually manifest themselves symptoms requested charge. failure to submit and 60 min- period over a of between 30 that a utes, case law establishes begin appear Settled although they could must He trial court in as little as five or ten minutes. evidence, this affirmative by “re The first element of
defensive issue raised by evidence character.” defense can be satisfied gardless of its substantive (Tex. 276, State, the accused: Brown
Crim.App.1997). (cid:127) intox- ingested unaware he had substance; icating to an affirmative defendant is entitled (cid:127) force or du- every by
defensive instruction on issue an intoxicant ingested ress; regardless raised the evidence or feeble, unim- strong,
whether
(cid:127)
according
medication
prescribed
took a
contradicted,
if
peached, or
and even the
prescription.
opinion
trial court
is of the
(Tex.
State,
Heard v.
testimony is not entitled to belief. The
ref'd);
pet.
App.—Texarkana
testimony
may
defendant’s
alone
be suf-
(Tex.
State,
646, Spriggs theory requir-
ficient to raise a defensive
pet.);
no
App.—Corpus Christi
ing charge.
into the
accord
238
Pen.Code
49.01(2)(A) (Vernon
857;
Supp.2000) (empha
Aliff,
see also
567 court’s portion of the of ... The definitional “Given the substantial amount limited the in Mendenhall’s case charge was not suffer- [that evidence Mendenhall culpable mental states applicable when he assaulted three hypoglycemia from Morrison], required as Deputy and the tenuousness of the result of his conduct addition, In experience hypo- did id. Hughes [he evidence and Cook. See the trial court’s glycemia], charge we find instructed application section [involuntary failing give only in error that he could be convicted harm- instruction ... was intentionally, know- finding intoxication] a that he upon overrule Accordingly, injury less.” Id. we Men- recklessly bodily ingly, or caused point. denhall’s first Morrison. See Ann. Tex. Pen.Code 22.01(a)(1). Accordingly, § we conclude MENTAL STATE CULPABLE proper. We overrule charge that the argues in his second point. Mendenhall’s second correctly the court failed to issue mental charge culpable on the OF SENTENCES CUMULATION applicable charged.
states to the offense challenges the consti indicted Mendenhall for assault The State cumu- authorizing the statute tutionality of public a 22.01 of the servant. Section In in his third issue. lation of sentences provides person Penal that a com Code issue, challenges the manner his fourth “intentionally, offense if he know mits this court ordered that his sen which the recklessly bodily injury causes to” ingly, consecutively run with a tence in this case public “a person the actor knows is serv However, did prior sentence. public lawfully ant while the servant at the either of these contentions not raise discharging duty.” an official Pen. pronounced that his sen time the court (b)(1) (Vernon 22.01(a)(1), Code prior consecutively run with a tence would Supp.2000). or later in a motion for new trial. sentence Assault is a “result-of-conduct” preserved not these Accordingly, he has State, Kelly crime. See Tex.R.App. review. P. issues for our See State, (Tex.Crim.App.1988); Brooks v. 33.1(a)(1); Stevens (Tex.App.-—Austin S.W.2d Thus, (Tex.Crim.App.1984). we pet.); no see also Cook overrule his third and fourth issues. (Tex.Crim.App.1994) (identifying the three “conduct elements” judgment. affirm the We Penal described section 6.03 of the Code). charged the accused is with When GRAY, concurring. Justice TOM crime,
such the definitions the evidence Because I do not believe concerning applicable culpable mental involuntary intoxi- to the result of his even raised the issue of states should be limited cation, por- respectfully than cir dissent from the conduct rather the nature of or *8 opinion in it holds surrounding his conduct.1 tion of the Court’s which cumstances in refusing trial erred to Hughes v. that the court the affirmative de- 884 S.W.2d instruct Crim.App.1994); Cook v. Nevertheless, fense. because Court at 491. 6.03(b) is that his conduct is example, of the Penal conduct when he aware 1. For section knowingly, provides “person a reasonably Code acts the result.” certain to cause knowledge, respect (Vernon 1994) (em- nature 6.03(b) or with with Pen.Code Ann. conduct to surround- his or circumstances added). provides sim- phasis The Penal Code of ing his conduct when he is aware reckless, intentional, and ilar definitions for of conduct or that the circum- nature his criminally negligent conduct. Tex. Pen.Code knowingly, person stances exist. A acts (Vernon 1994). 6.03(a), (c), (d) § knowledge, respect with to a result his with of error, system accept holds that it was harmless I concur cial as a matter of law in the result. person diagnosed that it is reasonable for a with a disease for which he must receive a had been convicted of daily any inquiry medication to not make serving crime and was his sentence in a or do research into the most basic prison. transported State He was aspects of the disease. As he states in his County Freestone to attend his trial for fully Appellant’s brief “to understand divorce. in prison, While Mendenhall had claim, understanding an of the disease of diagnosed day a been as diabetic. On the necessary.” candidly diabetes is As he timing receiving of the trial of his brief, in admits “the most common medication and his meals was altered. hypoglycemia cause of an insulin reac- day Near the end of a which he took a tion, Commonly, patient ... takes the full dose of adult insulin for onset diabetes ie., insulin, medication, but, morning dose of according testimony, to his ate rela- food, then becomes sick and cannot eat.” The tively episode little he had a violent every in which a most fundamental element that dia- deputy injured. sheriffs It just immediately so betic knows or must learn is happened episode, that the violent during alleges which he to have had a that there is a direct connection between (both out,” precisely “black occurred at the mo- taking eating the medication eat). ment that court orally you you the trial rendered when eat as well what as him. judgment against specific showing Absent a that Menden- Involuntary intoxication is not a defense hall did not know and was unable to dis- available to Mendenhall on these facts. eonsequénees eating cover the of not when First, there is the issue of whether or not medication, he continued to take his I can- involuntary a hypogly- intoxication due to not hold that the trial court erred refus- recognized cemic reaction should be as an give an ing to instruction purposes affirmative For defense. of this Also, intoxication. for the additional rea- is, opinion only, I will assume that it not- voluntarily ingested that he the insulin son has not withstanding voluntarily refused or failed to eat single been able to cite a case from across him, food that was made available to I nation that a recognized has such de- would hold that the trial court did not err Second, simply fense. failed in on invol- refusing give instruction to establish the fundamental elements nec- untary intoxication. essary to the trial require court to theory on this as an affirmative
defense.
Mendenhall’s evidence was that he had diagnosed
been as a diabetic for over five acknowledges that re- weeks. He he had AVILA, Alejandro Appellant, counseling prison regarding ceived some Appellant contends that be- disease. only recently cause he had diagnosed been Texas, Appellee. STATE as diabetic that “there is reasonable 14-97-01267-CR, Nos. 14-97-01269-CR. not have inference from this he did Texas, hypo- that he would have Appeals Court Dist.). (14th glycemic shock his situation.” be- given Houston exactly lieve the inference is to the con- *9 Feb. trary. enough more than time
Five weeks is
for Mendenhall to have determined what judi-
meant to be a diabetic. He asks the