*1 knowledge peculiar goods or skill contracts, virtues of forward that case involved, applicable is not fact this situa- involved a agreement signed written by involving exception tion to the defense parties both and the opinion does not con- of 2.201(b)]. of the statute frauds [Section sider the issue of the respective burdens of term “merchant” is employed The the parties regarding the creation of for- significant provisions thirteen of least the ward contracts. Texas Business and Commerce Code.1 Ac- Finally, it is profes- unreasonable a cordingly, the definition of “merchant” dealer, grain experienced sional com- be a one and every must broad criterion of market, modity assume that a farmer may always broad apply definition single crop who sells a year of wheat a has given provision. This is sup-
to a view knowledge professional business ported by following comment to Section practice of employing a memorandum 2.104(a): only signed by party one to create a binding The “2. term ‘merchant’ as defined here agreement. ‘law concept roots merchant’ of a The unfortunate result of majority professional profession- business. The only decision that every farmer in al status under may the definition be “merchant,” Texas is held to abe but every upon specialized knowledge based as to individual buys who from time to time or goods, specialized knowledge as to significant sells household or personal specialized practices, business knowl- items, trailers, boats, house or automobiles edge special- as to both which kind also becomes a “merchant.” Each these knowledge may ized sufficient to es- persons would be “merchant” and would the merchant status is tablish indicated by be bound a confirming by letter sent provisions.” by nature [Em- buyer person object or seller if the did not phasis added.] to it. provision suit, involved in this Sec- 2.201(b), contemplates an awareness of STEAKLEY, McGEE, Justices professional practice of business em- join YARBROUGH in this dissent. ploying confirming signed memorandum only party binding one to create a con-
tract, notwithstanding statute goods While the dealing
frauds. act occupation may
or one’s indicate awareness practice, knowledge pecu-
of such or skill goods cannot. liar II, George OGLE, Appellant, Braddock even undisputed majority 2.104(a) fourth criterion Section Texas, Appellee. is not satisfied. STATE of Clearly, application a literal of the stat- No. 50159. majori- view support
ute does not of the Appeals Court Criminal of Texas. Further, ty. weighing of the burden on 5, Nov. 1975. bbject to every farmer letter he against buyer the burden on the receives 9, Rehearing On June 1976. signed the return of a contract does await 6, Rehearing April Denied support provide persuasive ma- Although Allenberg jority view. Cotton Pittman, 20,
Co.,
26-29,
Inc. v.
419 U.S.
(1974),
S.Ct. 2.103, 2.201, 2.205, 2.603, 2.207(b), 2.605(a)(2), 2.609(b). 1. Sections 2.314, 2.327, 2.403, 2.209(b), 2.402(b), 2.509(c),
361 Tessmer, Wright, Frank Charles W. S. Goranson, Dallas, appellant. Ronald L. Wade, Atty., Dist. and Steve Wil- Henry Ormesher, ensky, Rusty Les Eubanks and Dallas, Attys., Vollers, D. Asst. Dist. Jim Atty., McAngus, David S. Asst. State’s Austin, for Atty., State’s State. OPINION MORRISON, Judge. is kidnapping for extortion offense 1177a, V.A.P.C.; punish-
under Article ment, years. sufficiency of the evidence briefly but we
challenged, observe that old year boy twelve abducted then payment after released ransom. Through agents, the efforts appel- day arrested on the same lant was money was recovered. ransom one, three two and re- Grounds provide failure of the late court copies reports agents in the course of their in- nine FBI testified, agent each vestigation. After requested reports counsel pellant’s purposes impeachment and cross-ex- request. The court denied each amination. evidence, of the the trial At the close court reports in evidence for pur- admitted only. post the record In two poses the trial court assured hearings, the reports would be included appeal, reports record on the record part were not transmitted to an order this Court. Pursuant now us. Court, reports are before Meyer, appellant, upon clear that and which the trial court refused to inspect request, see, was entitled to let saying that he had reviewed it statements the nine FBI who and found beneficial this appel- testified, though did not through even use the lant. All Meyer’s testimony he their expressed to refresh memories. Gaskin the appellant 467; Tex.Cr.R. was “rational” when he saw him within *3 State, Tex.Cr.App., 480 Zanders v. S.W.2d hours after commission the offense. 708.1 However, Meyer’sreport contains the fol- lowing: trial allowing court erred “Dr. Kassanoff stated he appellant’s reports Ogle counsel use of the considered dur to be somewhat different in trial, his such error is harmless but when behavior from a normal individual and he entirely testimony the witness’ consistent he possibly signs indicated statement socio- with the and almost all of pathic behavior. the information contained in statement State, Tex.Cr.App., 514 S.W.2d However, in the State, Tex.Cr.App., 496 developed during the trial. ease at S.W.2d 642. bar, 927; Stein v. White somewhat abnormal. He said that it was Dr. Kassanoff stated that his contact with [*] Ogle [*] this occasion [*] [*] again [*] seemed : n references were made to a visit was brook and ity time tance before sion of this made was not a had made to Dr. Kassanoff for treatment of was from chicken as to the sole His witness duct to the dered him of his defensive supported defense as to his pox such determining appellant’s mental condition at Dr. witness, incapable either arrest. requirements offense and a within why visit was thus of vital Reedy. Throughout was that he was suffering pox encephalitis wrong. he was not called and no hours after the commis- Dr. Kassanoff’s theory. introduced State or the conforming In this defense validity of what he knew very explanation Dr. short which ren- Kassanoff appellant. evidence Dr. Hol- his con- invalid- impor- while trial, as a he propounded by only Reedy, he was occasion Dr. Kassanoff conducts a brief his he had to do so at neurological check which shows no abnor- malities. Assume— During the cross examination of Dr. seemed unconcerned with his case of the Ogle’s competency examinations indicate lems of a chicken Kassanoff and “Assume that on the keeps captioned crime committed.” appreciate right [*] opinion portion lengthy hypothetical question temporarily pox, [*] possible sociopathic thereof: but [*] prosecutor. again Ogle, from unable substantially date 3:15, [*] appointment exhibited wrong and at that [*] visits a Dr. We at time nature. quote prob- time, [*] To which repeated [APPELLANT’S COUNSEL]: references were made to his Judge, not, object, I as that’s not in evi- showing as exhibited dence. signs abnormality. no THE basing COURT: He is this on an Special Agent Meyer’s report as to his assumption, counsel. Go ahead.”
interview with Dr. Kassanoff was among immediately apparent the statements which It is that under the repeated demands see so the that he Gaskin Rule2 was entitled to might use the same in cross examining Agent Meyer’s examine report and use the (8th 1965), employee F.2d 678 1. that once federal Cir. cases We also observe cited prosecution therein. testifies in a state court pur- should be available to the accused State, supra. 2. Gaskin v. also See Jackson v. S., pose examination. Lewis v. of cross Cf. U. State, Tex.Cr.App., 506 20,1973, ary Ogle The fact that a Mr. called and in cross-examination. asked same supported ap- ain manner a car. A few minutes later a rent man insanity clearly defense of sole pellant’s in and said he was Mr. Ogle walked from the harm which resulted demonstrates reserved and that a car and stated allow cross- refusal to such court’s (It shop. his wife’s car was report. examination shown that the wife’s car was not later a small shop.) rented is reversed and the cause judgment day. gave for one automobile ad- remanded. dress as Dartbrook. The rental was DOUGLAS, J., participating. Express on an American charged credit wrote Ogle’s card. Freeman down driver’s MOTION ON STATE’S
OPINION
number.
not return
license
did
REHEARING
FOR
picked
up
car but Freeman
later at 6524
*4
family
Dartbrook where
and his
lived.
PART I
It had been driven 68
69 miles. At the
DOUGLAS, Judge.
positively
Freeman could not
identify
this cause was re-
opinion,
an
In
earlier
as
appellant
person
who rented the car.
several Federal Bureau
versed because
Taylor
Arleta
testified that she was a
Investigation
testified
and waitress at the
Springs
cook
Comanche
look at their com-
denied the
was
on North
Inn
Central and that
approxi-
at
report
purpose
for the
of cross-exami-
bined
8:30
mately
morning
20,
of February
written,
was
nation. Since
she saw
enter
motel.
100-page
a
copy of
has ordered
Court
LeFlore,
clerk,
Jewel
the desk
testified that
Investiga-
Bureau of
of the Federal
appellant rented Room
256 at
motel and
compilation
of the work of
which is
Ogle.
G.
signed
name
Braddoek
He
agents to be made available to counsel
nine
gave
address as
Dartbrook in Dal-
granted
Time
for the
appellant.
was
used
Express
las. He
the American
credit
if
filing of
briefs to determine
supplemental
gave him the key
card. She
to Room 256.
was
fail-
error
committed
reversible
calls were made
telephone
from the
Seven
available the
in the trial
ure make
registered
Room
day.
on
256 that
She
furnished,
of the
was
copyA
court.
she
him
thought
saw
leave the motel in a
both
are now before the Court.
briefs
Williams,
green
Donald
small
car.
a con-
will
if
be reviewed to see
The entire case
motel,
worker at the
struction
was
committed.
reversible
appellant leave
in
he saw
the motel
a green
appellant,
shows that
at
The evidence
the day
question.
automobile on
in
Phillip
Terry,
took
Ross
a stu-
gunpoint,
Speights, a secretary
Janice
at the North-
dent,
yard.
elementary
school
Af-
Elementary
Dallas,
Hills
wood
School
large
taking
demanded a
ter
about
morning
at
9:28 in the
boy’s
who
money
from the
father
sum
day
question
a man called
president of a
and received mon-
bank
was
Terry,
he
Kenneth
Phil
stated
boy.
of the
Most of
ey for the release
father,
Terry’s
that he
had to
money
was found in
home
taken
couple
out of school for
Phil
hours
take
sufficiency
day
kidnapping.
of the
“Richardson General had
because
called and
challenged,
the evidence
they
going
were
to have to take
said
will be set out so that
proof
statement
He
told her
have Phil meet him
tests.”
may
properly
contentions
bicycle racks.
considered.
Phillip
Terry
Ross
operated a Gulf service
Tom Freeman
age
years
and attended
on twelve
North-
agency
a Hertz Rent-a-Car
station and
Elementary
At
Hills
School. In
Highway.
response
on Northwest
wood
Preston Road
morning
principal’s
Febru-
call he
o’clock the
to a
went
office
about 8:00
was told to meet his father at
heard what
like
sounded
noise from a paper
racks. He related that man was
bicycle
got
sack. Then
man
in the car and
green
in a
automobile
at the racks
small
away.
drove
He sounded like he was count-
wearing
a ski mask
and that
the man
and all of a sudden he
get
The man told him to
and sun shades.
stopped.
got
The man
out and told Phil to
car. He started to run but the man
count
to a thousand. He drove off and
pulled a dark colored revolver and told him
circled;
came back and
he thought the man
down in the back seat
cover his
to lie
going
to run over him. The man
After the man drove the car a short
eyes.
stopped and said to hand him the tape and
distance, he turned and handed Phil some
keep
eyes
closed. Phil did as he was
eyes
and had him cover his
tape
with it.
Later
told.
he went to a nearby school and
slight
did so but left a
opening
Phil
principal.
talked
FBI agents later
bottom. He knew the area well and tried
took him to Dartbrook Street
to where a
being
sure where he was
to be
driven.
man,
Ogle,
Brad
lived and he
saw a
they
onto
Express-
knew that
drove
Central
with a
automobile
tan interior like the one
stopped, they got
The car
out and the
way.
recognized
which he had ridden. Phil
put
on his shoulder and
man
his hand
neighborhood
where
had been nearby
opened
up some stairs.
man
went
playing with other children. He had met
they went into a room that had
door and
years
some two
Mrs.
before but had
blue, different
colored
yellow,
red and
Ogle.
met Mr.
never
carpet that he could see from below
striped
days
two
after the
in ques-
Some
incident
*5
him lie down on
tape. The man made
the
tion, Phil heard a voice on television. He
yellow bedspread.
a
The
the bed which had
and
looked
saw a man.
It was the voice of
telephone
picked up
then
the
and
man
the man who had taken him in the car.
sounded like
had
dialed and his voice
he
Ogle
The man on television was
who was
in his mouth. He heard the man
something
sitting
the courtroom.
Shaw,
that he was Mr.
that he was a
say
something
or
like that and that he
Wood,
CPA
secretary
Katherine
a
to Kenneth
speak
Terry. He
asked to
to Mr.
dialed
a call
Terry,
approximately
received
at
period
a
three or four times over
some
February
10:00 o’clock on
the
and
man
before he could
twenty
to
minutes
fifteen
Shaw, CPA,
identified himself as Mr.
a
and
finally
man
Terry.
to Mr.
When the
talk
speak
Terry.
to
Mr.
wanted
The voice
telephone
the
that
Terry
Mr.
on
he said
got
strange.
be
appeared to
distorted or
She
your
and that “we have
he was Mr. Shaw
Terry
Mr.
testified that
had customers and
think,
like,
$200,000
I
‘low’
and we’d
son
the man called back several
times.
placed
ramp
to be
on a
Central
bills
call,
she asked him the nature
the
When
by the bank.” Phil talked to
Expressway
up.
he said that it was about Phil and hung
during
father
the call. The man told
his
the
They
process
checking
were in
to see
minutes
Terry
Mr.
he had some seven
any
if there were
Shaws listed as CPAs in
money.
the
to deliver
pages when
yellow
the
the man called back.
(which
Terry took this call
was a demand
the
hear workmen around
Phil could
money).
for ransom
Katherine Wood then
hammering
sawing.
building,
and
Later
the
called
school and found out that Phil
Investiga-
Federal Bureau of
Phil directed
was not there. Gordon Shanklin
the
FBI
had
agents over the route that he
Quite
money
gath-
was called.
a bit of
was
the
and then showed them
room
taken
Terry
the
ered at
bank and she watched
bedspread just
a
carpeting
and
which
money
bag
in a
paper
leave with
brown
like the ones where he
been. After
Terry
his arm.
telephone calls,
under
She
completing his
the man took
stopped
ramp
on the
of the expressway
and
out
the car and he heard sounds
him
bag
paper
set the
out on the driver’s
expressway.
from the
The
side on
apparently
were
grass.
twenty
at
ex-
About
minutes
a
stopped,
thought
he
later
car
open
green sports
car
up
and he heard
door
man drove
a
pressway,
Springs
morning
Motel that
up
money.
attorney
was not close
She
picked
the license
from Arizona.
was later shown
enough
plate.
to see
FBI
engaged in a
attorney
a
murder trial in
just
money
few minutes after
came
during
week of the kidnapping.
Arizona
picked up.
if
Ogle
kept large
was asked
he
sums of
Terry,
Terry,
of Phil
Kenneth
father
$48,000
money.
replied that he had
He
president of
First Bank and Trust
$49,000
During
there.
cash
time
Company. He testified that he received the
rationally
signed
talked
and he
the consent
said,
your
man
have
and that the
“We
call
A short time
he
form to search.
later
money.”
we
The man was
want
son
attorney
then
called an
withdrew the
strange, garbled,
a
talking in
what he
Later,
to search.
after consult-
permission
thought
disguised
a
voice. The man
attorney, Ogle again
agreed
with his
$200,000 small,
said, “We want
unmarked
found
search.
ashes
bills,”
place
money
and to
on the north
money wrappers
fireplace.
in the
paper
ramp
Expressway
Spring
Central
Val-
They
agreement
a Hertz
found
rental
Crossing. He told them not to sound an
ley
green
front area of
that showed
talked to his son Phil
Terry
over
alarm.
imprint
credit card.
Ho-
telephone
he
that he
could
gan
found a ski mask
They
did not have the
crying.
hear
gloves
furniture drawer and the
$200,000
got
money
all the
full
Room
key
room
256 was found in the
alerting
without
the tellers for fear
could
Express
American
home. The
credit card
being
he was
watched and that some-
receipt, for the room was also found and
He
thing
happen.
placed
would
what was
A
.22 caliber
introduced.
revolver and
$56,950
determined to be
in two paper
later
gloves were found.
sacks.
bank,
teller
Cope,
Ted
was shown
Terry
had known
since the summer
which
taken
had been
1971 and had talked with him in
so
pellant’s home.
identified dozen or
bank,
returning
After
Terry
office.
bills which had mark on them. Florence
car come
by and
driver
watched
*6
Hawkins,
bank,
a teller at the
marked some
get
stopped
picked up
out but
and
did
counting purposes
earlier as she
money. Terry later
the
went to
dealer-
wrappers
picked
it
she
put
ap-
in
out
ship
and identified
as
kind of
100
proximately
bills that she had marked
he had
He saw one like it at the
car
seen.
in
prior
that
been
the bank
to the time
had
George Ogle on
home of
the afternoon of
by Terry.
it was taken
kidnapping. He
that he
Neal,
attorney,
ap-
Jim
testified that
agents
when Phil
the FBI
present
directed
pellant owed
American Bank
Trust
that he
gone
the route
had
over
$90,000
agreed
some
and he
Company
had
Springs Motel on
Comanche
Central Ex-
in
It
pay
February.
to
it back
was also
pressway.
appellant
large
owed
shown that
other
FBI
Phil
agents
testified that
took
debts and was
dire financial straits. He
been
over the route that he had
them
pay
to
promised
February
had
the debts
FBI
Hogan
the motel.
James
to
wife,
Ogle,
Shirley
appellant’s
got
registration
re-
appellant
had taken
to
that she
Dr. Kassa-
Ogle’s
to
residence on
ceipts
went
Dart-
February
12th of
noff on the
that Dr.
Grubert, agent
A.
brook. Herbert
Berryman also saw him.
related
She also
of
charge of the Dallas Division
Federal
pox
that
had
appellant
chicken
on the 15th
Investigation,
testified that he
Bureau
or 16th.
at the home and he read his
appellant
saw
rights
Appellant
to him.
told
that he
Dr. Holbrook testified in
that on
effect
morning
car he had rented that
appellant
of the offense
was tem-
had
the date
Hertz Rent-a-Car. He said that he
insane. While he was
porarily
testifying,
from
stated,
prosecutor
“Let the
re-
rented a motel room at Comanche the
record
had
reading
that he is
from Dr.
fleet
Kassa-
developed
statement
during the trial.
State,
report.”
put
noff’s
The State offered to
v.
Stein
Next asserts that FBI re- Alford testified: no mention of automobiles at port made “. . .at I discretion was mere- interview and residence him time. ly following at this At his Agent Meyer trial. went a few feet direction down he had access to had told stopped made a hallway left turn question. day on the three automobiles into the door there that encloses a room.” harm is shown assertion that There the harm could no what indication was room 256.” “It evidence is without contra- been. The have included the following: “Phil rented appellant used diction that color,” bedspread yellow was a said Rent-a-Car, having ac- from Hertz was, Alford “The was not a material issue. to other cars cess *8 bedspread explained was perfectly by Phil- there was no Complaint is lip prior to our arrival there and this report Meyer mention exactly bedspread on the bed.” Magistrate inform heard U.S. all, are are These but most of against him and that charges where the instances claims that appellant give proper answers to the heard error committed the fail that the an- reversible him and questions propounded available to him appropriate. This ure make were correct and swers there be- Agent Meyer’stestimo- If be inconsistencies with the trial. was consistent tween the and the testimony, not such as their use in
are cross-examina- change
tion would the verdict from that of
guilty guilty. to not overwhelming
The evidence as to
pellant’s guilt action and in the kidnapping; having bank; taken from the leasing used kidnapping car renting part
and his the room aas of his argued
scheme. Even jury something
do with the case. viewing light
In insanity
defense of time of the of- upon encephalitis
fense based caused pox, we hold the error in the
failure to make available the beyond
harmless a reasonable doubt. grounds
The other are
overruled.2 No reversible error has been rehearing
shown. The State’s motion for
granted judgment and the is now affirmed.
ROBERTS, J., concurs in the result. COLLINS, Appellant,
Wilbur Charles
v. Texas, Appellee.
The STATE of 52961.
No.
Court of Appeals Criminal of Texas.
Nov. 1976. 4,1977. April
Certiorari Denied 1611.
See S.Ct. Eight grounds juris other error have been dis add contains that would to our Thompson State, prudence. II v. cussed Part which consists See 514 S.W.2d legal pages. publica 1974); v. (Tex.Cr.App. It Wood of seven size is not for parties. (Tex.Cr.App.), the benefit of will and Marshbum is for *9 S.W.2d 248 per (Tex.Cr.App. 1975). treated as a curiam because