Opinion issued April 30, 2013.

                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                              NO. 01-11-00662-CR
                           ———————————
                   IRVIN JOSEPH WILLIAMS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 182nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1313198

                         MEMORANDUM OPINION

      A jury convicted appellant, Irvin Joseph Williams, of murder and assessed

his punishment at 52 years’ confinement. On appeal, appellant contends that (1)

the evidence is insufficient to support his conviction; (2) he should receive a new
punishment hearing because of improper jury argument by the prosecutor; (3) the

trial court erred in denying his motion for mistrial after the prosecutor elicited

evidence of an extraneous offense; and (4) he was denied due process because of

prosecutorial misconduct. We affirm.

           BACKGROUND FACTS FROM GUILT/INNOCENCE

      On March 9, 2008, Sadar Cade heard footsteps on the stairs leading to John

Brown’s apartment, which was directly over Cade’s apartment. Shortly thereafter,

he heard fighting, then three consecutive gunshots, one right after the other. Cade

then heard footsteps on the stairs leading to the parking lot, but he never saw who

was making the noise.

      When officers from nearby University of Houston arrived, they found the

body of John Brown just inside the door to his apartment. He had five gunshot

wounds—four to his arms and one to his neck. The medical examiner testified that

the shot to the neck severed a carotid artery and would have been fatal, but that the

cause of death was the cumulative blood loss caused by all of the gunshot wounds.

      A. Taravella, a crime scene investigator for the Houston Police Department

[HPD], soon arrived at the scene and found evidence indicating that Brown was a

drug dealer. In the apartment, Taravella recovered a scale, 207 grams of cocaine,

and over $8,000 in cash from a Gucci shoebox near the sofa. He also found

several rounds of handgun ammunition, but did not locate a gun.            From the

                                         2
ballistics evidence, Taravella concluded that there were two shooters. One shot

was fired from close range, struck Brown in the neck, went through the door, and

hit a nearby building. Two other shots were fired from across the room near the

television. Two cartridge casings fired from a .40 caliber gun were recovered from

this area.

       Taravella noticed several shoeboxes in the bedroom of the apartment that

appeared to have been “ransacked.” He thought that the suspects might have

handled the boxes while rummaging through them, so he dusted several of the

boxes for prints. He recovered a fingerprint from a Silver Prada shoebox.

       On July 30, 2008, the fingerprints taken from the murder scene were

identified as appellant’s prints.

       On September 5, 2008, Officers M. Smith and B. Bryan of HPD saw two

men acting suspiciously at an apartment complex in southwest Houston. Because

the complex had a criminal trespass affidavit on file, the officers attempted to

detain the men. Each time the officers approached, the two men would turn and

walk in the opposite direction. Eventually, the officers were able to detain the two

men—appellant and David Cyres. When they were searched for the officers’

safety, the police recovered a .40 caliber Glock handgun from Cyres. Cyres was

arrested, but appellant was released. Ballistics testing on the gun recovered from

Cyres showed that it was the same .40 caliber gun used to shoot Brown.

                                         3
      With fingerprint evidence placing him at the scene of the crime and evidence

placing him in the company of a person carrying the gun used in the murder,

Officers M. Miller and T. Miller, began searching for appellant.

      On October 27, 2008, Officers Miller traveled to Louisiana to look for

appellant in New Orleans, his hometown. While there, they spoke to his mother,

but were unable to locate appellant. So, the officers returned to Houston and had a

warrant issued for appellant’s arrest.

      On October 31, 2008, appellant was arrested in Louisiana, based on the

Texas warrant. Officers Miller traveled again the Louisiana, where, after being

read and waiving his statutory rights, appellant gave a voluntary statement. In his

statement, appellant told Miller that he went with Israel Hudgins to buy crack

cocaine from Brown. A person he knew only as “D,” later identified as Darryl

Pierre, drove them to Brown’s apartment in a grey Ford Focus. They purchased

cocaine, left, then returned later to purchase more.

      When they entered the apartment, appellant said that Hudgins shot Brown in

the neck, then handed a .40 caliber gun to appellant and threatened to shoot him if

appellant did not also shoot Brown. Appellant said that he then shot Brown two

times. Then, according to appellant, Hudgins went into the back to look for drugs

and money and told appellant, “Bitch, you better do something.” Appellant said

that he then intentionally touched a box and left a fingerprint “so that the detective

                                          4
could find me.” He and Hudgins then took approximately $2,000 and Brown’s .9

millimeter handgun and fled. Pierre acted as the get-away driver.

      In his statement, appellant also admitted that he was carrying the same .40

caliber gun the day that David Cyres was arrested, and that he gave Cyres the gun

so that he, appellant, would not get in trouble.

      At trial, appellant presented Pierre, who had already been convicted of this

murder, as a defense witness. Pierre testified that, on the day of the murder, he,

appellant, and Hudgins went to buy drugs at someone’s apartment. While he

waited in the car, Hudgins and appellant went inside. Pierre knew that Hudgins

had a gun, and when asked if Hudgins had shown the gun to appellant, Pierre

replied, “yeah, he got them. He handed—I knew he put one on him. I didn’t know

about the other one.” Pierre did not hear any gunshots because he was listening to

music.

      Hudgins got in the front passenger seat, threw a chrome .9 mm handgun into

his lap, and said, “come one, let’s go.” Pierre testified that Hudgins told him that

“he shot the guy in the neck with the .357 and gave [appellant] a .40 and told him

if he don’t shoot him, he was going to shoot him.”

      On cross-examination, Pierre admitted that he gave contrary information to

Officer Miller during an interview on November, 21, 2008. In that interview,

Pierre told Miller that, on the day of the murder, appellant came to Pierre’s house

                                           5
and said that “he wanted to hit a lick” or rob someone. Pierre told Miller that it

was appellant’s idea to rob Brown because he knew Brown had a lot of money.

Pierre said that both appellant and Hudgins had their own guns when they went to

Brown’s apartment. Pierre told Miller that after the men returned to the car,

appellant said, “I got $1000,” and “I had to shoot him. If we didn’t kill him, he

would have come looking for us.”

      Pierre also testified that, as he drove away from the apartment, appellant

cautioned him, “You better slow down. You’re going to make this car hot,” or

draw police attention.

      Pierre testified that he had lied to Officer Miller when he said that a robbery

was appellant’s idea. He said that he lied because he believed that it was appellant

who had implicated him in the murder. He explained that he changed his story

because he had since come to believe that it was Hudgins who had implicated him.

                     SUFFICIENCY OF THE EVIDENCE

      In four related points of error, appellant contends the evidence is insufficient

to support his conviction. Specifically, appellant argues that there is insufficient

evidence to support his conviction, either as a principal, party, or co-conspirator,

“under any of the theories of murder submitted to the jury, namely intentional

murder, serious bodily injury murder, or felony murder.” Appellant also argues

                                          6
that the evidence is legally and factually insufficient to support the jury’s negative

finding on his affirmative defense of duress.

Standard of Review

      We review a challenge to the legal sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781,

2788–89 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston

[1st Dist.] 2010, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.

Crim. App. 2010)). Under the Jackson standard, evidence is insufficient to support

a conviction if, considering all the record evidence in the light most favorable to

the verdict, no rational factfinder could have found that each essential element of

the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S.

at 317–19, 99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). Evidence is insufficient under this standard in four circumstances: (1)

the record contains no evidence probative of an element of the offense; (2) the

record contains a mere “modicum” of evidence probative of an element of the

offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the

acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S.

at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 & n. 11; Laster, 275 S.W.3d at 518;

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

                                          7
      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007); see also Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008)

(stating jury is sole judge of credibility of witnesses and weight to give their

testimony). An appellate court presumes that the factfinder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see also

Clayton, 235 S.W.3d at 778 (reviewing court must “presume that the factfinder

resolved the conflicts in favor of the prosecution and therefore defer to that

determination”).

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. In determining the sufficiency of the evidence, a

reviewing court examines “whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the

light most favorable to the verdict.” Id. (quoting Hooper v. State, 214 S.W.3d 9,

16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all the

                                          8
circumstantial evidence can be sufficient for a jury to find the accused guilty

beyond a reasonable doubt, even if every fact does not “point directly and

independently to the guilt of the accused.” See Powell v. State, 194 S.W.3d 503,

507 (Tex. Crim. App. 2006).

Applicable Law

      A person commits murder if he intentionally or knowingly causes the death

of another person or intends to cause serious bodily injury and commits an act

clearly dangerous to human life that causes the death of another. TEX. PENAL CODE

§ 19.02(b)(1),(2) (Vernon 2011). A person commits the offense of felony murder

if that person commits or attempts to commit a felony, other than manslaughter,

and in the course of and in furtherance of the commission or attempt, or in

immediate flight from the commission or attempt, that person commits or attempts

to commit an act clearly dangerous to human life that causes the death of an

individual. TEX. PENAL CODE ANN. § 19.02(b)(3) (Vernon 2011); see White v.

State, 208 S.W.3d 467, 467 (Tex. Crim. App. 2006). Here, the underlying felony

alleged was robbery. A person commits robbery if, in the course of committing

theft, and with intent to obtain or maintain control of property, he intentionally or

knowingly places another in fear of imminent bodily injury or death. TEX. PENAL

CODE ANN. § 29.02(a) (Vernon 2011). When, as here, a general verdict is returned

and alternate theories of liability alleged, we may uphold the conviction if the

                                         9
evidence is sufficient under any of the theories submitted. See Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State, 847 S.W.2d

555, 558 (Tex. Crim. App. 1992)).

Rejection of Duress Affirmative Offense

      Because most of appellant’s arguments regarding the sufficiency of the

evidence rest on his defense of duress, we address that issue first.

      The trial court instructed the jury on appellant’s affirmative defense of

duress. It is an affirmative defense to prosecution that the defendant engaged in

the proscribed conduct because he was compelled to do so by threat of imminent

death or serious bodily injury to himself or another. TEX. PENAL CODE ANN. §

8.05(a) (Vernon 2011). However, to prevail on the affirmative defense of duress,

appellant was required to show by a preponderance of the evidence that he was

compelled to engage in the proscribed conduct by threat of imminent death or

serious bodily injury to himself or another. Id. § 2.04(d); see Williams v. State, 911

S.W.2d 191, 195 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). Compulsion

exists only if the force or threat of force would render a person of reasonable

firmness incapable of resisting the pressure. See TEX. PENAL CODE ANN. § 8.05(c)

(Vernon 2011); Shaw v. State, 874 S.W.2d 115, 119 (Tex. App.—Austin 1994, pet.

ref’d). The defense of duress is unavailable if the defendant intentionally,

                                          10
knowingly, or recklessly placed himself in a situation in which it was probable that

he would be subjected to compulsion. TEX. PENAL CODE ANN. § 8.05(d).

Legal Sufficiency

      When an appellant asserts that there is no evidence to support an adverse

finding on which he had the burden of proof, we construe the issue as asserting that

the contrary position was established as a matter of law. Matlock v. State, No. PD-

0308-12, 2013 WL 690854, at *3 (Tex. Crim. App. Feb. 27, 2013). First, we

search the record for evidence favorable to the finding, disregarding all contrary

evidence unless a reasonable factfinder could not. Id. If we find no evidence

supporting the finding, we then determine whether the contrary position was

established as a matter of law. Id.

      Here, there was legally sufficient evidence to support the jury’s negative

finding on appellant’s affirmative defense of duress. By appellant’s own statement

to Miller, he shot Brown several times with a .40 caliber gun. The ballistics tests

confirm that this weapon was used to shoot Brown.           Appellant was still in

possession of that same weapon several months later, when, by his own admission

he gave it to Cyres so that he would “not get in trouble.” From this, the jury could

have concluded that the gun belonged to appellant, not Israel Hudgins as appellant

claimed. Also, appellant’s fingerprint was found on a shoe box at Brown’s

apartment in an area of the apartment that, to police, looked like it had been

                                        11
rummaged through while appellant was looking for something. The jury could

also have reasonably concluded that by participating in a drug deal at best, or a

robbery at worst, appellant placed himself in a situation in which it was likely that

he would be subject to compulsion by his co-actors. There was also evidence that,

rather than go to police and claim compulsion, appellant fled the state.

       Because there was some evidence supporting the jury’s failure to find

duress, we need not determine whether he established the defense as a matter of

law.   Id. at *6. Because appellant did not conclusively prove his affirmative

defense under the legal sufficiency standard set forth in Matlock, he is not entitled

to an acquittal. Id. at *7.

Factual Sufficiency

       “A criminal defendant might also raise a factual-sufficiency challenge to the

jury’s adverse finding on his affirmative defense.” Id. at *4. In reviewing such a

challenge, we view the entirety of the evidence in a neutral light, but do not usurp

the function of the jury by substituting our own judgment in place of the jury’s

assessment of the weight and credibility of the witnesses’ testimony. Id. We may

sustain a defendant’s factual-sufficiency claim only if, after setting out the relevant

evidence and explaining precisely how the contrary evidence greatly outweighs the

evidence supporting the verdict, we clearly state why the verdict is so much against

                                          12
the great weight of the evidence as to be manifestly unjust, conscience-shocking,

or clearly biased. Id.

      Appellant’s duress defense is based on two pieces of evidence: (1) his

November 3, 2008 interview with Officer Miller, and (2) Darryl Pierre’s testimony

at trial. We examine each to determine whether together this contrary evidence so

greatly outweighs the verdict such that the verdict is manifestly unjust.

      When Miller interviewed appellant on November 3, 2008 in New Orleans,

appellant told Miller the following:

      Me and [Hudgins] (inaudible) went up there, we scoop like a
      (inaudible) a quarter of crack and we left. Second time we came back,
      me and [Hudgins] walks in, [Brown] was closing the door, [Hudgins]
      shot him in his neck. .357. He gave me a .40 he told me if I ain’t shoot
      [Brown] that he was going to shoot me, so I pulled the trigger. Shot
      two times. After that I just stood there, [Hudgins] ran in the back to
      go look for and search for money and drugs. He told me “Bitch, you
      better do something!” so I was scared so best thing I can come up to
      do is to touch something that was going to hold, you know that was,
      so the detective could find me. That’s what I did.

The jury, as fact-finder, determines the credibility of the witnesses and what

weight to give their testimony. See Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007). The jury may choose to believe all, some, or none of the

testimony presented. Hughes v. State, 897 S.W.2d 285, 289–90 (Tex. Crim. App.

1994).

      Here, it was the jury’s prerogative to believe appellant’s statement that he

shot Brown with a .40 caliber gun, but disbelieve his statement that Hudgins gave
                                         13
him the gun and made him shoot. According to appellant’s statement, Hudgins

shot Brown, then gave appellant a gun and forced him to shoot also. However,

witnesses testified that they heard three shots fired one right after the other with no

break between the first shot and the second and third shots. The jury could also

have disbelieved appellant’s statement that he intentionally left his fingerprint so

that police could find him, especially in light of evidence that appellant made every

effort to avoid police by first giving his weapon to Cyres when approached by

police on September 5, 2008, and then, later, by fleeing to New Orleans.

      At trial, Darryl Pierre testified that on the day of the murder, Hudgins and

appellant picked him up to go “score some drugs.” He knew that Hudgins had a

gun. While he sat in the car listening to music, Hudgins and appellant went into the

drug dealer’s apartment. When they came out, Hudgins got in the passenger seat,

threw a .9mm gun in Pierre’s lap and said, “Come on, let’s go.” Pierre testified

that Hudgins told him that “he shot the guy in the neck with the .357 and gave

[appellant] a .40 and told him if he don’t shoot him, he was going to shoot him.”

      However, on cross-examination, Pierre admitted that he had made an earlier

inconsistent statement to police. In his previous statement, Pierre told police that it

was appellant’s idea to go “hit a lick,” which meant they were going to rob

someone. Pierre told police it was appellant’s idea to rob Brown because appellant

knew he had a lot of money. Pierre told Officer Miller that when appellant came

                                          14
back to the car, he said that he had gotten $1000, but that he had to shoot Brown

because if they did not kill him, Brown “would have come looking for us.”

      At trial, Pierre testified that he lied to police in his first statement because he

believed that appellant was responsible for him being arrested and sent to jail for

the same offense. However, he claimed that he was telling the truth at trial because

he now believed that Hudgins was the person responsible for sending him to jail.

He also testified that it was against his “code” to be a snitch.

      Again, it was the jury’s prerogative to disbelieve Pierre’s trial testimony,

especially in light of his inconsistent prior statement to police, in which Pierre told

police that the robbery was appellant’s idea and that appellant admitted shooting

Brown so that he would not come looking for them. The jury could also have

considered Pierre’s testimony that it was against his code to be a snitch, and

concluded that he changed his testimony at trial from that of his prior statement to

police to avoid being labeled a “snitch.”

      After reviewing all of the evidence, we cannot conclude that the evidence

supporting appellant’s affirmative defense greatly outweighs the State’s contrary

evidence.

      Accordingly, we hold that the evidence is legally and factually sufficient to

support the jury’s negative finding on the issue of duress. We overrule points of

error three and four.

                                            15
Guilt as Party or Co-Conspirator

      The jury was instructed that it could find appellant guilty either as a

principal or a party to the offense. A person is criminally responsible as a party to

the offense if it is committed by the actor’s own conduct, by the conduct of another

for which he is criminally responsible, or by both. TEX. PENAL CODE ANN. §

7.01(a) (Vernon 2011). A person is criminally responsible for an offense

committed by another if, “acting with intent to promote or assist the commission of

the offense, he solicits, encourages, directs, aids, or attempts to aid the other person

to commit the offense.” Id. § 7.02(a)(2).

      To establish guilt under the law of parties, the evidence must show that, at

the time of the offense, the parties were acting together, each contributing some

part towards the execution of their common purpose. See Ransom v. State, 920

S.W.2d 288, 302 (Tex. Crim. App. 1994); Ahrens v. State, 43 S.W.3d 630, 633–34

(Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). In determining whether a

defendant participated in an offense as a party, the fact finder may examine the

events occurring before, during, and after the commission of the offense and may

rely on actions of the defendant that show an understanding and common design to

commit the offense. Ransom, 920 S.W.2d at 302; Ahrens, 43 S.W.3d at 634. Each

fact need not point directly and independently to the guilt of the defendant, as long

as the cumulative effect of all the incriminating facts are sufficient to support the

                                            16
conviction. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004); see

Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). Circumstantial

evidence may also prove party status. Ransom, 920 S.W.2d at 302.

       Under the law of parties, a person may also be held criminally responsible

for the conduct of another who is acting as a co-conspirator. See TEX. PENAL CODE

ANN. § 7.02 (Vernon 2011). A person is guilty as a party to a felony offense

committed by a co-conspirator if (1) the offense committed by the co-conspirator is

a felony, (2) the co-conspirator committed the offense during an attempt to carry

out the conspiracy, (3) the co-conspirator committed the offense in furtherance of

the unlawful purpose of the conspiracy, and (4) the defendant should have

anticipated that the offense would result from the carrying out of the conspiracy.

See id.; Love v. State, 199 S.W.3d 447, 452 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d). A criminal conspiracy forms when two or more persons agree to engage

in conduct that would constitute a felony so long as the agreeing parties actually

intend that a felony be committed and one of them later commits an overt act in

pursuance of their agreement. TEX. PENAL CODE ANN. § 15.02(a) (Vernon 2011).

The law of parties requires proof that the other person committed the predicate

offense for which the defendant is held vicariously responsible. See id. § 7.02(a)-

(b).

                                        17
      Appellant contends that he is not guilty as either a party or a co-conspirator

because he “was present only to assist in the purchase of cocaine when Hudgins

unexpectedly shot the complainant in the neck causing his death,” and that he,

appellant, “then shot the complainant in both arms when Hudgins threatened to

shoot him.”

      However, the jury could have concluded that this was planned as a robbery,

not merely a drug purchase. According to Pierre’s testimony on direct, Hudgins

had two guns when the men went to Brown’s apartment. When asked if Hudgins

had shown the guns to appellant, Pierre replied, “yeah, he got them. He handed—I

knew he put one on him. I didn’t know about the other one.” Appellant admitted

shooting Brown, along with Hudgins, and, as stated above, there is sufficient

evidence to support the jury’s negative finding of duress.

      Appellant’s fingerprint was found on a shoebox in the Brown’s bedroom,

indicating that he had been rummaging around or ransacking the area while

looking for something to steal. The jury could have disbelieved appellant’s

testimony that he left the fingerprint on purpose so that the police could find him,

especially in light of evidence that appellant did everything possible to avoid

detection by telling Pierre to slow down or he would make the car “hot” as they

made their escape, giving the gun used in the murder to Cyres to avoid getting “in

trouble,” and fleeing to New Orleans.

                                         18
      Also, in his November 21, 2008 statement, Pierre told police that it had been

appellant’s idea to rob Brown because he knew that Brown had a lot of money.

And, in fact, money and a gun were taken from Brown’s apartment.

      Several months after the offense, appellant still possessed the gun he used to

shoot Brown. He admitted that he gave the gun to Cyres so that he, appellant,

would not get in trouble.

      Robbery at gunpoint is sufficient, standing alone, to make the shooting an

act that should have been anticipated, and, when an individual is shot, it must also

be anticipated that the person may be injured or die as a result of the shots. See

Williams v. State, 974 S.W.2d 324, 330 (Tex. App.—San Antonio 1998, pet. ref’d)

(holding that killing during pawnshop robbery was foreseeable where at least one

conspirator was present with firearm). Texas courts have consistently held that

when a murder occurs in the course of a conspiracy to commit robbery, all parties

to the robbery are guilty of murder. See Green v. State, 682 S.W.2d 271, 285–86

(Tex. Crim. App. 1984); Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.—

Houston [14th Dist.] 2004, pet. ref’d); see also Ruis v. State, 579 S.W.2d 206, 209

(Tex. Crim. App. 1979); King v. State, 502 S.W.2d 795, 797–98 (Tex. Crim. App.

1974). Courts have also consistently held that conspirators should anticipate that a

murder could occur in the course of the commission of a robbery when they have

knowledge that a co-conspirator is carrying a firearm. See Love, 199 S.W.3d at

                                        19
453; Longoria, 154 S.W.3d at 756–57. “Evidence that a defendant knew his co-

conspirators might use guns in the course of the robbery can be sufficient to

demonstrate that the defendant should have anticipated the possibility of murder

occurring during the course of the robbery.” Love, 199 S.W.3d at 453.

      Based on the evidence presented at trial, the jury could have rationally

concluded that appellant, Hudgins, and Pierre had planned to rob Brown, and that,

all involved knew that Hudgins at least was armed. Therefore, under the case law

cited above, the evidence is sufficient to convict appellant of felony murder as

either a party or a co-conspirator.

      We overrule points of error one and two.

             IMPROPER JURY ARGUMENT AT PUNISHMENT

      In points of error five through eight, appellant contends that he is entitled to

a new punishment hearing because of improper jury argument by the prosecutor at

the punishment phase of the trial.

Applicable Law

      Permissible jury argument generally falls into one of four areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) an

answer to the argument of opposing counsel; or (4) a plea for law

enforcement.     Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App.

2010); Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).

                                         20
We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. 2004); Hunt, 2012

WL 858613, at *2. When the refusal to grant a mistrial follows an objection

for improper jury argument, we balance three factors to determine whether the trial

court abused its discretion: (1) the severity of the misconduct (prejudicial effect),

(2) curative measures, and (3) the certainty of conviction or punishment absent the

misconduct. Archie     v.   State, 340   S.W.3d     734,   739    (Tex.   Crim.    App.

2011); Hawkins, 135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex.

Crim. App. 1998) ; Hunt, 2012 WL 858613, at *2. Only in extreme circumstances,

when the prejudice caused by the improper argument is incurable, that is, “so

prejudicial that expenditure of further time and expense would be wasteful and

futile,” will a mistrial be required. Hawkins, 135 S.W.3d at 77; see Archie, 340

S.W.3d 739 (“Mistrial is . . . appropriate . . . when . . . the objectionable events ‘are

so emotionally inflammatory that curative instructions are not likely to prevent the

jury from being unfairly prejudiced against the defendant.’”) (citing Young v.

State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004)). In most cases, an instruction to

disregard will cure the alleged harm. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000). This is so because we generally presume the trial court’s

instruction will be obeyed by the jury. Colburn v. State, 966 S.W.2d 511, 520 (Tex.

Crim. App. 1998).

                                           21
Statement Regarding Prosecutor’s Plea for Punishment Outside the Range

      Appellant complains about four statements by the prosecutor.         We will

address each respectively.

      In his closing argument, defense counsel asked the jury to give appellant “a

chance because he has apologized to the [complainant’s] family and because he

has a life that he also can do something with and you consider that.”           The

prosecutor responded by arguing:

      [T]he bottom line in this case, folks, is our community in 2005 opened
      our hearts, and our souls, and our wallets; and in exchange, this
      defendant opened fire. That’s the bottom line in this case. And you
      want to give him a chance? I would—I wouldn’t let him out in a
      million years.

Defense counsel objected to “improper jury argument,” the trial court sustained the

objection, but refused defense counsel’s request for an instruction to disregard.

Having obtained an adverse ruling, defense counsel did not further request a

mistrial.

      In point of error five, appellant argues that the argument was improper

because it injected the prosecutor’s personal opinion on punishment, which he then

invited the jury to adopt when he further argued that, “You shouldn’t let him out in

a million years.”

      Here, the prejudicial effect of the argument was not great. No reasonable

argument can be made that the jury believed that a “million year” sentence was a

                                        22
possibility. In fact, the prosecutor made it clear that he was seeking a life sentence,

which was in the possible range of punishment. The State’s use of hyperbole in

attempting to make its plea for law enforcement was not unduly prejudicial

because jurors are capable of understanding rhetorical hyperbole for what it

is. Erlandson v. State, 763 S.W.2d 845, 855 (Tex. App.—Houston [14th Dist.]

1988, pet. ref’d).

      Although no curative measures were taken, as we have already stated, the

jury was capable of understanding that the prosecutor was not, in fact, asking for a

sentence outside the range, but was merely asking for a lengthy sentence.

      Finally, the certainty of appellant’s punishment was not affected by the

argument.    Appellant admitted shooting Brown.         There was also punishment

evidence that appellant had participated in an aggravated robbery and had also

discharged his weapon at the victims in that case. And, despite the prosecutor’s

pleas for a life sentence, the jury assessed punishment at 53 years’ confinement,

which was in the middle of the punishment range.

      Accordingly, the trial court did not err by denying appellant’s request for an

instruction to disregard. We overrule point of error five.

Statements Regarding Argument Outside the Record

      During closing argument at punishment, the prosecutor argued that “there’s

a lot of people in jail that try to right the wrongs they’ve done.” He also argued

                                          23
“what if that bullet didn’t go through a wall and it went through a window and the

Lyn-Mar Apartments were facing the other way? Or through the defendant’s

reckless shots, went through that area, through that door, and hit a child playing?”

      Defense counsel objected that both statements were outside the record. The

trial court sustained the objections, instructed the jury to disregard the statements,

but denied defense counsel’s request for a mistrial.

      The first statement about people in jail trying to right their wrongs, while

outside the record, does not inject facts that are harmful or even relevant to the

defendant. The second comment, though speculative and outside the record, only

points out what is already obvious to most jurors—that shootings in public places

can sometimes injure innocent people, even though that was not the case here. The

effects of these remarks were not so prejudicial that the instruction to disregard

was ineffective. See Archie, 340 S.W.3d 739 (“Mistrial is . . . appropriate . . .

when . . . the objectionable events ‘are so emotionally inflammatory that curative

instructions are not likely to prevent the jury from being unfairly prejudiced

against the defendant.’”) (citing Young, 137 S.W.3d at 71). And, for the same

reasons given in our discussion of point of error five, the certainty of his

punishment was not affected by any argument outside the record by the prosecutor.

      Accordingly, we overrule issues six and seven.

                                         24
Statement Striking at Defendant over Counsel’s Shoulders

      After appellant told the jury that he would not “let appellant out in a million

years,” he followed up with the statement:

      You shouldn’t let him out in a million years. [Defense counsel] got
      up here because he’s afraid and he knows what this defendant needs,
      what he deserves.

Defense counsel objected that the prosecutor was “attacking the defendant by

attacking the defendant’s attorney saying I’m afraid of anything.” The trial court

sustained the objection, instructed the jury to disregard, but denied defense

counsel’s request for a mistrial.

      In point of error eight, appellant argues that this argument strikes at

appellant over the shoulders of counsel and implies that counsel was afraid of

appellant and knew what punishment he needed and deserved.

      When a prosecutor makes uninvited and unsubstantiated accusations of

improper conduct directed toward a defendant’s attorney, in an attempt to

prejudice the jury against the defendant, courts refer to this as striking a defendant

over the shoulders of his counsel. Phillips v. State, 130 S.W.3d 343, 355 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d) (op. on reh’g), aff'd, 193 S.W.3d 904

(Tex. Crim. App. 2006). A prosecutor risks improperly striking at a defendant

over the shoulders of counsel when the argument refers to defense counsel

personally and when the argument explicitly impugns defense counsel’s

                                         25
character. Mosley   v.   State, 983   S.W.2d    249,    259   (Tex.    Crim.    App.

1998); Davis, 268 S.W.3d at 712.

      Here, the statement that defense counsel was “afraid” and knew what the

defendant “needs” and “deserves,” does not allege improper conduct by the

attorney or impugn his character. In fact, it is not clear what the prosecutor was

saying that the defense counsel was afraid of. It could be, as the State argues, that

the prosecutor was trying to say the defense counsel was afraid that his client was

going to get a lengthy sentence because that is what he deserved.

      Even if we agreed that the comment was a strike at the defendant over the

shoulders of counsel, the statement was not so extreme or manifestly improper that

it could not be cured by an instruction to disregard. See Wesbrook, 29 S.W.3d at

115 (holding that prosecutor’s comment that defendant had to come up two

different stories, “One to [the police] and one to you” was not so flagrant that

instruction to disregard was ineffective); Tilbury v. State, 890 S.W.2d 219, 223

(Tex. App.—Fort Worth 1994, no pet.) (holding that prosecutor’s comment that

defense counsel tried to “muddy the waters” was improper as striking defendant

over shoulder of counsel, but trial court’s instruction to disregard cured error).

And, for the same reasons given in our discussion of point of error five, six, and

seven, the certainty of appellant’s punishment was not affected by any argument

striking at him over the shoulders of counsel

                                         26
      Accordingly, we overrule point of error eight.

                           EXTRANEOUS OFFENSE

      In point of error nine, appellant contends the trial court erred in denying his

motion for mistrial after a prosecution witness testified that the pistol appellant

used in this murder was also involved in a shooting on March 14, 2010.

      During Officer Miller’s testimony, the following exchange took place:

      [Prosecutor]: Now, this murder happens on March 9th of 2008. Can
      you tell us how long it was until you got a match on the fingerprint?

      [Miller]: It was July 30th, 2008.

      [Prosecutor]: So, we’ve been---March, April, May, June. You said
      July?

      [Miller]: July 30th, 2008. That’s correct.

      [Prosecutor]: So, five months later you had the fingerprint match.
      When did the gun get recovered?

      [Miller]: March 14th, 2008.

      [Prosecutor]: So, that was just a few days [after the murder]. What
      took—

      [Miller]: I’m sorry. The shooting involving the gun happened March
      14th, 2008; and the gun was recovered—

      [Prosecutor]: No, just when the gun—

      [Defense Counsel]: I’m sorry, Judge. I’m going to object. May we
      approach, please?

      [Trial Court]: Okay.

                                          27
Defense counsel objected that Miller’s testimony opened an extraneous offense.

The trial court sustained appellant’s objection, instructed the jury to disregard

Miller’s comment, but denied appellant’s motion for a mistrial.

      We review a trial court’s ruling on a motion for mistrial for an abuse of

discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Wead v.

State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004). An appellate court must

uphold the trial court’s ruling if it was within the zone of reasonable disagreement.

Wead, 129 S.W.3d at 129. A mistrial is required only in extreme circumstances

where the prejudice is incurable. Archie, 221 S.W.3d at 699. A mistrial is the trial

court’s remedy for improper conduct that is so prejudicial that expenditure of

further time and expense would be wasteful and futile. Hawkins, 135 S.W.3d at

77.

      Appellant argues that a mistrial was required because “it left the clear

impression that the appellant was involved in the shooting, and that the shooting

was without provocation or explanation.” It is well established that testimony

referring to or implying extraneous offenses can be rendered harmless by an

instruction to disregard unless they are so clearly calculated to inflame the minds

of the jury and are of such a nature as to suggest the impossibility of withdrawing

the impression produced. Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App.

1992). Whether a witness’s improper reference to an extraneous offense warrants a

                                         28
mistrial depends on the particular facts of the case. Ladd v. State, 3 S.W.3d 547,

567 (Tex. Crim. App. 1999). Because a mistrial is an extreme remedy, a trial court

should declare a mistrial only when the error or misconduct is highly prejudicial

and incurable. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003);

Hudson v. State, 179 S.W.3d 731, 738 (Tex. App.—Houston [14th Dist.] 2005, no

pet.).

         We conclude that Miller’s uninvited reference to a shooting involving the

same gun used in this case was not so inflammatory as to undermine the efficacy of

a motion to disregard. The State did not intentionally elicit the information; the

prosecutor’s question was about when the gun was recovered, not whether it had

been involved in another crime. And, Miller did not state that appellant had used

the gun in another shooting; he mentioned only that the gun was involved in a

shooting. In fact, in this case the same inference could be made that Hudgins had

been involved in another shooting, because, according to appellant, the .40 gun

was not his, but Hudgins’s. Finally, we note that the court’s charge instructed the

jury that it could consider extraneous offense evidence only if it believed beyond a

reasonable doubt that appellant committed such an act, and then only in

determining motive, opportunity, intent, preparation, plan, knowledge, identity or

absence of mistake or accident. We presume the jury followed both the instruction

                                         29
to disregard and the charge. See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim.

App. 1996).

      Accordingly, we overrule point of error nine.

                       PROSECUTORIAL MISCONDUCT

      In point of error ten, appellant contends that he was denied due process of

law because of prosecutorial misconduct. Specifically, appellant complains that

the prosecutor (1) conducted an improper opening statement because it was “not a

roadmap of the evidence to follow, but a final argument;” (2) erroneously solicited

hearsay testimony; (3) erroneously solicited extraneous offense testimony; (4)

mislead the jury regarding why appellant was arrested in New Orleans; (5)

improperly impeached Darryl Pierre; and (6) conducted an improper closing

argument. Appellant argued that, because it cannot be said beyond a reasonable

doubt that the prosecutor’s misconduct did not contribute to his conviction or

punishment, this Court should either reverse his conviction, or grant a new

punishment hearing.”

      Some of these complaints were made and sustained at trial, and subsequently

addressed here on appeal. However, appellant never made a due-process objection

or indicated to the trial court that he believed that cumulative effect of the

prosecutor’s actions had deprived him of a fair trial. There is nothing in the record

to show that the trial court was aware that appellant was making a due process

                                         30
claim. Thus, his due process complaint based on prosecutorial misconduct is

waived. See Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App. 2012) (holding

that evidentiary objections at trial did not present trial court with opportunity to

rule on due process claim raised on appeal, thus due process claim was waived).

      Accordingly, we overrule point of error ten.

                                 CONCLUSION

      We affirm the trial court’s judgment.

                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

                                        31


126 Ga. App. 595 (1972)
191 S.E.2d 484
MANHATTAN INDUSTRIES, INC.
v.
PAUL.
47242.
Court of Appeals of Georgia.
Argued May 24, 1972.
Decided June 16, 1972.
Rehearing Denied July 6, 1972.
N. Forrest Montet, for appellant.
T. J. Lewis, Jr., for appellee.
DEEN, Judge.
Where the trial court overrules the defendant's motion for summary judgment this court will not reverse unless from the entire record construed against *596 the movant it appears that there is an absence of any genuine issue as to all material facts and that the defendant is entitled to a judgment as a matter of law. Atlanta Gas Light Co. v. Roberson, 120 Ga. App. 361 (170 SE2d 587). The sole issue presented to us is whether the injured plaintiff was an employee or independent contractor under a one-shot oral engagement to pick up a rental truck for the appellant and drive it to a designated location. Plaintiff was injured on the defendant's premises prior to departure and while on his way to the front office to turn in the truck rental agreement. He was never carried on any of the defendant's records as an employee, was never paid, and indeed there is evidence that the question of compensation was not discussed in advance. The plaintiff's evidence indicates that he had no instructions beyond the place where the truck was to be delivered. Whether as an employee he is barred from recovery in a tort action because of contributory negligence, the fellow servant rule, or the exclusiveness of the remedy afforded by workmen's compensation are all questions which must await the result of a trial.
Judgment affirmed. Clark, J., concurs. Eberhardt, P. J., concurs in the judgment only.
EBERHARDT, Presiding Judge, concurring specially. There may possibly be an issue of fact for resolution in this case, and for that reason alone and under the applicable rules of summary judgment I concur in the judgment only.
The record shows a filing with the State Board of Workmen's Compensation by Mr. Paul wherein he seeks an award of compensation for his injuries in the same occurrence, alleging that he was an employee of Manhattan Shirt Company, Inc. at Americus (the correct name now *597 being asserted to be Manhattan Industries, Inc.). Counsel conceded in oral argument that it is still pending.
Unless more evidence is produced than appears in this record on which to base the claim that he was acting as an independent contractor rather than as an employee, it is my judgment that a finding of the master and servant relationship is demanded under the holding in Baird v. Travelers Ins. Co., 98 Ga. App. 882 (107 SE2d 579).


114 B.R. 430 (1990)
In re Barry GOLDSTEIN, Debtor.
Bankruptcy No. 89-10127S.
United States Bankruptcy Court, E.D. Pennsylvania.
May 24, 1990.
Marvin Krasny, Philadelphia, Pa., for debtor.
Mark S. Kenney, Philadelphia, Pa., for Fidelity Bank, Nat'l Assn.
James J. O'Connell, Asst. U.S. Trustee, Philadelphia, Pa., U.S. Trustee.
Bradford J. Lam, Philadelphia, Pa., for Coray Management.
*431 Robert T. Cohen, Philadelphia, Pa., for Germantown Sav. Bank.

OPINION
DAVID A. SCHOLL, Bankruptcy Judge.
In order to decide whether we can confirm the Debtor's Second Amended Plan of Reorganization ("the 3rd Plan") at this time, we must determine whether it is appropriate for us to disregard the vote of the Debtor's largest unsecured creditor rejecting the 3rd Plan because the Debtor's Objection to that claim, filed during the pendency of the voting period, had not yet been resolved as of the date of the confirmation hearing. We decline the Debtor's invitation to hold that the creditor's failure to expressly request that its claim be allowed for purposes of voting pursuant to Bankruptcy Rule ("B.Rule") 3018(a) requires that we not count the creditor's vote. Rather, we decide that it is appropriate to delay confirmation until we determine the merits of the objection to the creditor's claim at a hearing scheduled in the near future.
BARRY GOLDSTEIN, the Debtor ("the Debtor"), is a practicing attorney and a former principal of New York City Shoes, Inc. ("NYC Shoes"). NYC Shoes was a spectacularly successful retailer of women's shoes from 1982 until 1986, when it collapsed in the face of managerial disputes among its four principals, one of whom was the Debtor, and securities litigation filed against it. See In re New York City Shoes, Inc., 84 B.R. 947, 950-53 (Bankr.E. D.Pa.1988). The Debtor filed his instant individual Chapter 11 case on January 10, 1989.
After presenting two prior Plan drafts which were not consummated, the Debtor, on March 7, 1990, proposed the 3rd Plan. The terms of the 3rd Plan were reportedly negotiated between the Debtor and several banks which are unsecured creditors. Pursuant to the terms of the negotiated 3rd Plan, the Debtor was to cash out his interest in a building which his former law firm was selling and pay the sale proceeds to his general unsecured creditors pro rata. The only designated class of creditors other than general unsecured creditors in the 3rd Plan were unsecured creditors whose claims arose out of dealings with NYC Shoes stock. The Debtor, invoking 11 U.S.C. § 510(b), sought to subordinate the claims of these creditors to the claims of general unsecured creditors, which would result in no distribution to the said parties.
The Debtor apparently did not negotiate the terms of the 3rd Plan with Coray Management, Inc. ("Coray"). In February, 1990, Coray, previously the owner of three unsuccessful NYC Shoes franchises, filed an unsecured claim in the amount of $750,000 for losses which it attributed to, inter alia, improper actions of the Debtor. The amount of this claim was almost double the sum of the other general unsecured claims filed, including those of the banks.
Coray objected to the Debtor's First Amended Disclosure Statement because it believed that the accompanying First Amended Plan classified it as a NYC Shoes stock-sale creditor and hence as subordinated. In its Second Amended Disclosure Statement, the Debtor clearly classified Coray as a general, as opposed to a subordinated, unsecured creditor, but ominously stated that the Debtor "disputes any liability to Coray, will object to the allowance of said claim and will seek to either have it disallowed or subordinated."
Our Order approving the Second Amended Disclosure Statement, entered on March 19, 1990, required that all votes on the plan and objections to its confirmation be submitted and filed, respectively, on or before April 27, 1990, and that the confirmation hearing be held on May 3, 1990. On April 11, 1990, the Debtor filed an objection to Coray's claim. A hearing on the Objection was scheduled on May 23, 1990. Coray predictably voted against the plan. If its ballot were counted, no class would have accepted the 3rd Plan, since the subordinated class was deemed to have rejected it because no payment would be made to its members. 11 U.S.C. § 1126(g). Therefore, the 3rd Plan could not have been confirmed pursuant to, inter alia, 11 U.S.C. § 1129(a)(10), if Coray's vote were counted. *432 However, the Debtor attempted to avoid the result of denial of confirmation by arguing that Coray's ballot should not be counted, and filed a Memorandum of Law prior to the confirmation hearing supporting his position.
The Debtor's argument was based upon 11 U.S.C. §§ 1126(a) and 502(a). The former section provides that only a claimant whose claim is "allowed under section 502 of this title may accept or reject a plan." Section 502(a) provides that a claim is "deemed allowed, unless a party in interest, . . . objects." Since he did object to Coray's claim, the Debtor argues that Coray's claim must be deemed disallowed for purposes of voting.
The Debtor finds reinforcement for his reasoning in B.Rule 3018(a), which provides, in pertinent part, as follows:
(a) Persons Entitled to Accept or Reject Plan; Time for Acceptance or Rejection. A plan may be accepted or rejected by the following entities within the time fixed by the court pursuant to Rule 3017: (1) any creditor whose claim is deemed allowed pursuant to § 502 of the Code or has been allowed by the court; . . . Notwithstanding objection to a claim or interest, the court after notice and hearing may temporarily allow the claim or interest in an amount which the court deems proper for the purpose of accepting or rejecting a plan.
Invocation of the procedure established in the last sentence of B.Rule 3018(a) by Coray, presumably on its motion, was, according to the Debtor, a prerequisite for Coray's claim to be "temporarily allowed" and hence eligible to support a vote. Since Coray filed no such motion, the Debtor argued that Coray's vote should not be counted.
Armed with his supporting Memorandum, the Debtor's counsel expressed cock-suredness about the correctness of his position. When confronted with skepticism by this court about the equities of this argument, counsel cautioned this court not to reward Coray's counsel for his purported ignorance of the theory concerning the operation of B.Rule 3018(a) propounded by the Debtor.
The Debtor's counsel also suggested that Coray's own interest would not be served by rejection of the 3rd Plan because, if Coray succeeded in establishing the merits of its claim in the face of the Debtor's objection to it, Coray would receive a dividend. In light of this comment, we urged the parties to attempt to resolve their differences. In the event that they failed, we continued the hearing on Coray's objection, which the parties agreed entailed some discovery, until June 13, 1990 (and thereafter to July 5, 1990), and gave Coray until May 18, 1990, to respond to the Debtor's Memorandum.[1]
In its response, Coray argued several objections to confirmation of the Debtor's plan. However, no objections to confirmation per se have ever been filed by Coray. Moreover, had such objections been filed at the time of the filing Coray's Memorandum of Law, they would have been untimely. Therefore, these objections cannot be considered. See B.Rule 3020(b)(1); and 8 COLLIER ON BANKRUPTCY, ¶ 3010.04[1], at 3020-5 to 3020-6 (15th ed. 1990). Cf. In re Szostek, 886 F.2d 1405, 1412 (3d Cir.1989) (Chapter 13 case).
Our skepticism of the correctness of the Debtor's position arises for several reasons. Firstly, it seems unfair to allow a debtor to disenfranchise even a large creditor from voting on a plan merely by its unilateral act of filing an objection to the creditor's proof of claim. Secondly, the pertinent statute and rules do not directly support the reading urged by the Debtor. To reach this result, we would be obliged to interpret 11 U.S.C. § 502(a) as stating that, if a party objects to a claim, then it must be deemed disallowed. This Code section does not say that. It merely states that if a claim is not objected to, then it must be *433 deemed allowed. We would also be obliged to read the last sentence of B.Rule 3018(a) as precluding allowance of a claim subject to objection unless the claimant files a motion to obtain temporary allowance of the claim. The Rule does not say that. It merely provides that if, for any reason, any party or the court wishes to determine whether a claim subject to objection should be temporarily allowed for purposes of voting, a notice and hearing is first required.
One court has apparently read 11 U.S.C. § 502(a) and B.Rule 3018(a) as the Debtor proposes they should be. See In re M. Long Arabians, 103 B.R. 211, 215-16 (Bankr. 9th Cir.1989). However, while affirming the decision of the trial court disallowing the claimant's vote, the Bankruptcy Appellate Panel ("the BAP") in Long Arabians reversed a bankruptcy court decision disallowing that same claimant's objections to confirmation on their merits. Thus, the Long Arabians court was apparently influenced by the fact that the claimant, while disenfranchised, was not silenced. Here, because Coray's objections to confirmation were not properly filed, disenfranchising Coray will silence it. While a creditor who fails to meet time deadlines may properly be silenced, this disposition seems very harsh here, given Coray's diligence in monitoring the Debtor's case.
The other cases cited by the Debtor on this point, In re Orosco, 77 B.R. 246 (Bankr.N.D.Cal.1987), aff'd, 93 B.R. 203 (Bankr. 9th Cir.1988); and In re Gardinier, Inc., 55 B.R. 601 (Bankr.M.D.Fla.1985), provide even less support for his position than Long Arabians. Orosco merely holds that a debtor's filing of an objection to a creditor's claim after the voting does not reflect a waiver of the right to challenge the creditor's ability to vote. However, the Orosco court provided the creditor with an "ample opportunity" to argue the merits of its claim, and disenfranchised the creditor only after concluding that its claim could not be sustained on its merits. 77 B.R. at 250-52. In Gardinier, the court invoked B.Rule 3018(a), despite the absence of a motion, under that rule, by any party, and, considering the nature of the claim and its relationship to the success of the debtor's plan, exercised its discretion to disenfranchise the creditor. 55 B.R. at 604-05.
Neither Orosco nor Gardinier support the principle that a claimant can be disenfranchised by the mere fact that it fails to file a motion under B.Rule 3018(a), as the Debtor argues here. Instead, both decisions provide that the bankruptcy court must exercise its discretion, considering all relevant substantive factors, in determining whether it will allow a creditor to vote. They do not support the Debtor's argument that the solely procedural issue of whether the creditor filed a B.Rule 3018(a) motion is decisive.
Other decisions support a different reading of the impact of 11 U.S.C. § 502(a) and B.Rule 3018(a) than that urged by the Debtor. In In re Pizza of Hawaii, Inc., 761 F.2d 1374, 1382 (9th Cir.1985), the Ninth Circuit Court of Appeals affirmed a district court holding that a bankruptcy court is obliged to estimate a contested claim before plan feasibility can be determined. This holding, by a court whose decisions control those of the BAP which decided Long Arabians, suggests that this court is required to at least estimate, if not determine, the disputed claim of Coray if the validity of same is crucial to confirmation, irrespective of whether Coray has filed a motion under B.Rule 3018(a).
In In re Amarex, Inc., 61 B.R. 301, 302-03 (Bankr.W.D.Okla.1985), the court, while noting the impracticality of invoking B.Rule 3018(a) to estimate all disputed claims for voting purposes in a large case, simply allowed all of the holders of disputed claims to vote. Certainly, this result is inconsistent with the conclusion that a creditor whose claim is subject to an objection must invoke B.Rule 3018(a) to avoid disenfranchisement.
Finally, the court's reasoning in In re Motel Associates of Cincinnati, 50 B.R. 196 (Bankr.S.D.N.Y.1985), a case relied upon heavily by Coray, is antithetical to the Debtor's hypotheses. In refusing to recognize the Debtor's objections, at confirmation, *434 to the claims of voting creditors, the court stated, id. at 199, as follows:
Particularly where a disputed vote could control the outcome of balloting, it is inappropriate to disenfranchise a creditor who has duly filed a ballot rejecting a plan without notifying the creditor in advance of the hearing on confirmation that its vote would be challenged at that hearing.
The Debtor argues that its warning to Coray that it would object to its claim in the Second Amended Disclosure Statement, and the presence of B.Rule 3018(a) as a potential tool for Coray to obtain temporary allowance of its claim, constituted sufficient notice to Coray of the challenge to its vote which transpired at the confirmation hearing. We disagree. The Debtor does not so much as hint, in the Disclosure Statement, that Coray may be disenfranchised by his contemplated objection to its claim.
In sum, we refuse to read B.Rule 3018(a) as placing an affirmative duty upon Coray to act or lose its vote. Rather, we perceive B.Rule 3018(a), as do the Pizza of Hawaii, Motel Associates, Gardinier, and Amarex courts, as a tool which the court or any party can invoke to expedite confirmation when numerous objections to claims cloud the issue of creditors' rights to vote. Accord, 8 COLLIER supra, ¶ 3018.03[5], at 3018-10 (15th ed. 1990) ("The court, however, regardless of the circumstances, has the discretion to allow or disallow all or part of the claim for voting purposes.").
Further, we are not inclined to employ the "temporary allowance" tool here. The instant case is a small Chapter 11 case. The relatively slow pace of the case, despite our efforts to induce greater dispositional speed upon the Debtor and his counsel throughout, suggest that no particular urgency surrounds confirmation of the 3rd Plan such as would require the employment of the "temporary allowance" process of B.Rule 3018(a). A plenary hearing on the validity of Coray's claim is scheduled on July 5, 1990. It appears both in keeping with due process of law and in keeping with judicial economy by avoiding the necessity for two hearings for us to evaluate Coray's voting rights only after the hearing of July 5, 1990.
Noting that Coray's potential valid, negative vote is the only impediment to confirmation of the 3rd Plan, we will therefore continue the confirmation hearing until July 5, 1990. An appropriate Order will be entered.
NOTES
[1]  On May 23, 1990, the Debtor saw fit to submit an unsolicited Reply Memorandum to the remittance of Coray. This practice of making submissions additional to those pursuant to court orders is disfavored and may subject counsel to sanctions. See In re Jungkurth, 74 B.R. 323, 325-26 (Bankr.E.D.Pa.1987), aff'd, 87 B.R. 333 (E.D.Pa.1988).


473 N.W.2d 333 (1991)
James STINSON, Appellant,
v.
CLARK EQUIPMENT COMPANY, defendant and third-party plaintiff, Respondent.
LANO EQUIPMENT, INC., et al., Defendants and Third-Party Plaintiffs,
v.
MIDWEST BRASS & ALUMINUM, INC., Third-Party Defendant, and
Lumbermen's Underwriting Alliance, Intervenor.
No. C4-90-2626.
Court of Appeals of Minnesota.
July 23, 1991.
Review Denied September 13, 1991.
*334 Steve Gaskins and Bradley J. Ayers, Cosgrove, Flynn, Gaskins & Haskell, Minneapolis, for appellant.
David G. Martin and Michael R. Doherty, Doherty, Rumble & Butler, P.A., St. Paul, for respondent.
Considered and decided by FOLEY, P.J., and HUSPENI and AMUNDSON, JJ.

OPINION
FOLEY, Judge.
Appellant James Stinson challenges the district court's determination that a Rule 68 offer of judgment, plus costs and disbursements does not include prejudgment interest. Respondent Clark Equipment Company maintains the district court's award of costs and disbursements should be remanded or denied because the district court's findings were insufficient. We affirm in part, reverse in part and remand.

FACTS
Stinson commenced this products liability action against Clark and others not party to this appeal on January 14, 1987. He alleges he was caught between the left arm and rollover protective structure of a Bobcat Skid-Steer Loader on September 5, 1986. Stinson allegedly suffered severe abdominal injuries and was hospitalized for over two months. The Bobcat was manufactured by Melroe, a business unit of Clark.
A two-week trial was scheduled to begin December 13, 1989. On November 22, 1989, Clark served Stinson with a Rule 68 offer of judgment that provided for a $240,000 judgment to be entered against Clark plus costs and disbursements. Stinson accepted the offer in writing on December 1, 1989. The trial court entered judgment on January 18, 1990, incorporating the offer of judgment and reserving the issue of prejudgment interest and taxation of costs.
Stinson petitioned the district court for costs and disbursements of $55,262 in prejudgment interest, $31,593.14 in expert fees, $8,773.92 in deposition costs and $5,347.32 in miscellaneous costs and disbursements. By a November 12, 1990 order, the district court awarded Stinson $31,813.35 *335 in expert witness fees, $8,798.37 in deposition costs and disbursements and $4,594.16 in miscellaneous costs, and also denied prejudgment interest. Stinson appeals and Clark has filed a notice of review.

ISSUES
1. Did the Rule 68 offer of judgment, plus costs and disbursements include prejudgment interest as a cost?
2. Did the district court abuse its discretion in its award of costs and disbursements?

ANALYSIS
1. The determination of reasonableness of costs is within the district court's discretion and will not be reversed unless there has been an abuse of that discretion. Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 755 (Minn.App.1988), pet. for rev. denied (Minn. Mar. 30, 1988). A finding of fact may not be set aside unless it is clearly erroneous. Minn. R.Civ.P. 52.01. A district court's decision, however, is not binding on this court when the question is one of law. Dahlheimer v. City of Dayton, 441 N.W.2d 534, 536 (Minn.App.1989), pet for rev. denied (Minn. Aug. 15, 1989).
Stinson argues that, because the Rule 68 offer of judgment agreement is an enforceable money judgment, he is entitled to prejudgment interest. Minn.R.Civ.P. 68 provides in part:
At any time prior to ten days before the trial begins, any party may serve upon an adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued, either as to the claim of the offering party against the adverse party or as to the claim of the adverse party against the offering party. Acceptance of the offer shall be made by service of written notice of acceptance within ten days after service of the offer. If the offer is not accepted within the ten-day period, it is deemed withdrawn. During the ten-day period the offer is irrevocable. If the offer is accepted, either party may file the offer and the notice of acceptance, together with the proof of service thereof, and thereupon the court administrator shall enter judgment.
A purpose of prejudgment interest is to "promote settlements when liability and damage amounts are fairly certain and deter attempts to benefit unfairly from delays inherent in litigation." Solid Gold Realty, Inc. v. Mondry, 399 N.W.2d 681, 683 (Minn.App.1987). A valid Rule 68 offer of judgment, when accepted, is a contract. Lange v. Johnson, 295 Minn. 320, 326, 204 N.W.2d 205, 209 (1973). Where the intention of the contracting parties can be determined wholly from the writing, the contract construction is a question of law. Empire State Bank v. Devereaux, 402 N.W.2d 584, 588 (Minn.App.1987).
Here, a valid offer of judgment was accepted. Therefore, it is a contract. The offer of judgment agreement states:
James Stinson accepts the offer of defendant Melroe Company, a business unit of Clark Equipment Company, dated November 22, 1989, allowing plaintiff to take judgment in this action for $240,000, plus costs and disbursements accrued to the date of the offer. This offer of judgment is accepted on a Naig-Pierringer basis and solely against the defendant Melroe Company, a business unit of Clark Equipment Company.
Prejudgment interest was never raised, discussed or agreed upon.
The district court determined the Rule 68 offer of judgment agreement did not refer to prejudgment interest. The district court concluded prejudgment interest was not contemplated by the parties and, absent evidence to the contrary, it could not add a missing contract term. Thus, Stinson was not entitled to prejudgment interest.
Stinson maintains prejudgment interest is not a missing term. He argues "costs" include prejudgment interest and the offer of judgment agreement includes the word "costs." Stinson points to 2A Herr and Haydock, Minnesota Practice, § 54.18 (1985) as authority for the proposition that *336 prejudgment interest is a cost. The authors, however, note: "This cost should be distinguished from the awarding of interest on a judgment based on a contractual agreement." Id.
Stinson also argues that Minnesota statutes allow for prejudgment interest. Minn.Stat. § 549.09, subd. 1(b) (1990) provides:
Except as otherwise provided by contract or allowed by law, preverdict or prereport interest on pecuniary damages shall be computed * * * from the time of the commencement of the action * * *. The prevailing party shall receive interest on any judgment from the time the action was commenced or * * * until the time of verdict or report only if the amount of its offer is closer to the judgment than the amount of the opposing party's offer. * * * Except as otherwise provided by contract or allowed by law, preverdict or prereport interest shall not be awarded on the following:
* * * * * *
(3) judgments for future damages;
Minn.Stat. § 549.09 contemplates situations where a settlement offer is made and later, after the case has been tried, a judgment is entered that is more or less than the offer. In that situation two figures are needed, the settlement offer and the judgment. Here, the offer and the judgment are the same.
Stinson points to Higgins v. J.C. Penney Casualty Ins. Co., 413 N.W.2d 189 (Minn. App.1987), where this court awarded prejudgment interest on a lump sum judgment. Id. at 191. The case at hand, however, is distinguishable. In Higgins, the damages were readily ascertainable as a breach of contract award. Here, the parties agreed to damages for personal injury in the amount of $240,000 without differentiating between types of damages. We do not know if there are pecuniary damages, nor do we know the amount of future damages on which the statute explicitly disallows prejudgment interest. See Minn.Stat. § 549.09, subd. 1(b)(3). Because the types of damages are unascertainable, the amount of prejudgment interest is indeterminable. We find Minn.Stat. § 549.09 inapplicable here.
2. Clark maintains that the district court's award of costs and disbursements should be denied or remanded for more detailed findings because the award was (1) related to some claims against other clients, and (2) included excessive deposition and expert witness costs. Clark further argues that the trial court did not make specific findings. We agree.
The award of costs and disbursements is within the district court's discretion and will not be reversed on appeal unless there is an abuse of discretion. Striebel v. Minnesota State High School League, 321 N.W.2d 400, 403 (Minn.1982). The key in determining whether an abuse of discretion has occurred is whether the costs are "reasonable and necessary." Id.
Ordinarily the district court has the opportunity to hear testimony. This was not the case here. The offer of judgment agreement was made prior to trial. There is no transcript to review. While Stinson submitted exhibits showing costs, this case initially involved several other defendants. It is not clear from the district court's findings if it considered the other parties in its award or whether the costs were reasonable and necessary.
Minn.R.Civ.P. 54.04 provides:
Costs and disbursements shall be allowed as provided by statute. Costs and disbursements may be taxed by the court administrator on two days' notice, and inserted in the judgment. The disbursements shall be stated in detail and verified by affidavit, which shall be filed, and a copy of such statement and affidavit shall be served with the notice. The party objecting to any item shall specify in writing the ground thereof; a party aggrieved by the action of the court administrator may file a notice of appeal with the court administrator who shall forthwith certify the matter to the court. The appeal shall be heard upon eight days' notice and determined upon the objections so certified.
*337 (Emphasis added.) Here, the district court awarded $31,813.35 in expert witness fees, $8,798.37 in deposition transcript costs and $5,347.32 in miscellaneous costs and disbursements. The district court deleted the duplication of deposition preparation of McDowell Crane by subtracting $1,683.93 from the total claimed adjusted the amount for deposition transcripts for an error in addition. The court also
adjusted downward the miscellaneous costs and disbursements * * * by deleting unsupported claims for courier, delivery and fax services, unspecified photo copies, meals, office supplies, unspecified long distance phone calls, mileage and parking fees, and two unspecified medical exams.
The district court, however, did not make findings with respect to all these matters

A. Expert Witness Fees

A discretionary award of expert fees will only be disturbed if there has been an abuse of discretion. Carpenter v. Mattison, 300 Minn. 273, 280, 219 N.W.2d 625, 631 (1974). Rule 11 of the District Court Code of Rules provides in part:
The amount allowed shall be in such amount as is deemed reasonable for such services in the community where the trial occurred and in the field of endeavor in which the witness has qualified as an expert. No allowance shall be made for preparation or in conducting of experiments outside the courtroom by the expert. The judge in setting the fee on appeal is governed by the provisions of M.S.A. Sec. 357.25.
Minn.Stat. § 357.25 (1990) provides:
The judge of any court of record, before whom any witness is summoned or sworn and examined as an expert in any profession or calling, may allow such fees or compensation as may be just and reasonable.
Here, Rule 11 has a narrow application because we are dealing with an agreement prior to trial. Rule 11 disallows outside preparation fees which are merely for convenience, but allows fees that are necessary for testimony. Mohwinkel v. City of North St. Paul, 357 N.W.2d 174, 177 (Minn.App.1984), pet. for rev. denied (Minn. Feb. 19, 1985). The district court has discretionary authority to award expert witness fees, including compensation for testimony preparation. Id.
Minn.Stat. § 357.22 (1990) allows an expert witness's travel expenses. To determine if the district court abused its discretion, however, the costs and disbursements must be in detail and verified by affidavit. Illustrative is Spinett, Inc. v. Peoples Natural Gas Co., 385 N.W.2d 834 (Minn.App. 1986). In Spinett, this court looked at the documentation provided to the district court. The case was remanded for further findings because the evidence was inadequate for a determination on expert witness fees.
There was no evidence of the normal hourly charges of * * * experts or of the hours they actually spent at trial or preparing for trial. The record does not make clear whether the trial court followed the directives of Rule 11.
Id. at 840.
Similarly in the instant case, the record does not evidence the expert witness hourly charges or the number of hours spent on trial preparation. There was a slight modification of expert witness fees claims and some minor deduction of expenses claimed, but absent findings, we are unable to determine what is reasonable and necessary.
We are at a loss as to the proper result in this matter, unless we are to grant carte blanche authority to the district court and allow Stinson whatever he asks in the way of costs and disbursements. Neither the evidence nor the district court's findings are sufficiently detailed for us to make a determination of whether there has been an abuse of discretion. Therefore, we remand to the district court for detailed and verifiable findings.

B. Depositions

The costs of taking depositions are allowable within the district court's discretion. Reichert v. Union Fidelity Life Ins. Co., 360 N.W.2d 664, 668 (Minn.App.1985). Even if the depositions are not used, the *338 expenses of procurring depositions are taxable. Larson v. Hill's Heating & Refrig., 400 N.W.2d 777, 783 (Minn.App.1987), pet. for rev. denied (Minn. Feb. 7, 1987). If the depositions, however, are cumulative or duplicative, the costs are not allowed. Green-Glo Turf Farms, Inc. v. State, 347 N.W.2d 491, 495 (Minn.1984). Minnesota law also provides:
The legal fees paid for certified copies of the depositions of witnesses filed in any court administrator's office, or any documents or papers filed or recorded in any public office, necessarily used on trial of a cause or on the assessment of damages, shall be allowed in the taxation of costs. Any officer receiving fees shall, on demand, furnish an itemized list and receipt the same on payment. On refusal to do so, the officer shall be liable to the party paying the same for three times the amount paid. Every officer shall be entitled to the same fees for performing the same service.
Minn.Stat. § 357.31 (1990) (emphasis added).
The record lacks the requisite details to make clear if the deposition costs listed are legitimate. It is clear that an undisputed $8,000 in deposition fees has already been paid by Clark. The district court should consider this payment when determining the reasonable and necessary fees. We remand for more detailed findings.

C. Miscellaneous Costs and Disbursements

Miscellaneous costs and disbursements consist of photocopying, long distance phone calls, FAX charges, parking and courier services. While the district court has the discretion to award these costs, there is nothing here supporting its determination. Neither the district court's memorandum nor the record gives the requisite detail. There is no basis to review its accuracy. As the supreme court has noted:
The trial judge should * * * take a hard look at costs claimed. The judge is familiar with the needs of the case, its importance and the strategies involved. Romain v. Pebble Creek Partners, 310 N.W.2d 118, 124 (Minn.1981).
The district court must take a harder look at the costs here to determine through findings what is reasonable and necessary. In our view, the exacting task of reviewing and recording with particularity the items claimed is the role of the district court, not the appellate court. In order to make proper findings in this case, the district court is directed to take oral testimony of all costs and disbursements with full opportunity for both direct and cross-examination so a full record is available for review if further appeal is taken.
Finally, in Garrick v. Northland Ins. Co., 469 N.W.2d 709 (Minn.1991), the supreme court said that
"it is against the analogies of the law to allow expenses of litigation beyond the costs allowed by statute, which, * * * however inadequate, are the measure of indemnity which the law provides."
Id. at 714 (quoting Frost v. Jordan, 37 Minn. 544, 546, 36 N.W. 713, 714 (1887). In the final analysis, costs and disbursements allowed must be both reasonable and necessary.

DECISION
The district court correctly ruled that the Rule 68 offer of judgment agreement did not include prejudgment interest costs. The district court, however, did not make sufficient findings for review of reasonable and necessary costs and disbursements. In order to make proper findings in this case, the district court is directed to take oral testimony of all costs and disbursements with full opportunity for both direct and cross-examination so a full record is available for review if further appeal is taken. The trial court is not to review the matter of prejudgment interest.
Affirmed in part, reversed in part and remanded.


15 F.Supp. 927 (1936)
CENTRAL HANOVER BANK & TRUST CO.
v.
SIEMENS & HALSKE AKTIENGESELLSCHAFT et al.
District Court, S. D. New York.
April 15, 1936.
*928 Larkin, Rathbone & Perry, of New York City, for plaintiff.
Cravath, de Gersdorff, Swaine & Wood, of New York City, for defendants.
PATTERSON, District Judge.
The motion is by the plaintiff for partial summary judgment under rule 114 of the New York Rules of Civil Practice. The plaintiff is trustee for bondholders under a trust indenture securing bonds issued by the defendants, corporations under the laws of Germany. It seeks to recover judgment at law for the principal, premium, and interest on bonds now overdue and unpaid. By concession of the defendants, the amounts overdue and unpaid are $964,500 in principal, $19,290 in premium, and certain amounts of interest. The defendants' points are that certain recent laws of the German government justify nonpayment, and that in any event the plaintiff, not being a bondholder, is entitled to recover no more than nominal damages. The facts are undisputed.
The defendants, as already mentioned, are corporations organized under the laws of Germany. In 1925 they issued and sold in this country $10,000,000 bonds known as their secured sinking fund gold bonds; $5,000,000 due January 1, 1928, and $5,000,000 due January 1, 1935. The $964,500 bonds still unpaid are of the maturity of January 1, 1935. The bonds called for payment at the office of Dillon Read & Co. in New York City, in gold coin of the United States. The bonds on their face made reference to a trust indenture between the defendants and the plaintiff as trustee, for a description of the rights of the holders, the trustee and the obligors. The bonds also carried a clause to the effect that except as otherwise provided in the trust indenture all rights of action on the bonds and coupons were "vested exclusively in the trustee."
By the trust indenture certain commodities were put up as collateral security for payment of the bonds. The trust indenture contained these provisions bearing on the matters now in controversy: (1) The bonds should not be valid until authenticated by the trustee; (2) the obligors were to maintain an office or agency in New York City for the payment of principal, premium, and interest on the bonds, as well as an office here for registry, transfer, and exchange of bonds; (3) the obligors subjected themselves to the jurisdiction of the United States courts and of the New York courts as to all actions on the bonds, appointing an agent here to take the service of process, with the same effect as if the obligors existed here and were inhabitants of this district; (4) on default the trustee might proceed with a suit at law to enforce payment of the bonds; (5) on commencement of any suit to obtain judgment for principal and interest on the bonds, the obligors would waive service of process, enter voluntary appearance, and consent to entry of judgment "for such principal and premium and interest, * * * and for the lawful costs and the expenses and compensation of the Trustee and of the Trustee's agent, and for such other relief as the Trustee may be entitled to hereunder"; (6) no bondholder might commence suit to collect on any bond unless he had given written notice of default and had tendered adequate security to the trustee against expenses of suit, and unless also a majority of the bondholders had requested the trustee to take action and the trustee had "declined or failed to take such action." The indenture recited that it was executed and delivered in New York City.
The German laws pleaded as a defense are certain acts passed in 1933 and 1935. They are to the effect that debts owed by Germans to foreigners shall be paid by the debtors to the German government; that on such payment the obligations of the debtors to the foreign creditors shall be extinguished; that the government will issue certificates of indebtedness to the foreign creditors; and that foreign exchange cannot be disposed of without approval of the government. It is shown that the defendants *929 requested permission of the German government to pay these bonds on the due date, and that permission was refused.
First, as to the defense based on the German laws. Judge Learned Hand recently said that "by the law of most civilized countries the legality of the performance of a contract depends upon the law of the place of performance, and a contract is enforceable, if lawful by the law of the place of making when made, and if the performance is lawful by the law of the place of performance when due." Anglo-Continentale Treuhand v. St. Louis Southwestern Ry. Co., 81 F.(2d) 11, 12 (C. C.A.2), certiorari denied April 6, 1936, Henwood v. Anglo-Continentale Treuhand, 56 S.Ct. 675, 80 L.Ed. ___. In that case it was held that a contract by an American corporation to pay in guilders abroad was not affected by our domestic monetary resolution of June 5, 1933. By the same token a contract made here by a German corporation to pay money here is not touched by a law of Germany prohibiting such payment or purporting to discharge the debtor altogether on payment to the German government.
It is the law of the place of performance that controls matters relative to legality of performance, impossibility of performance, and other excuses for nonperformance. New York Life Ins. Co. v. Dodge, 246 U.S. 357, 38 S.Ct. 337, 62 L. Ed. 772, Ann.Cas.1918E, 593; Zimmermann v. Sutherland, 274 U.S. 253, 47 S.Ct. 625, 71 L.Ed. 1034; Louis-Dreyfus v. Paterson Steamships, 43 F.(2d) 824, 72 A.L.R. 242 (C.C.A.2); Ralli Bros. v. Compania Naviera, [1920] 2 K.B. 287; Beale on Conflict of Laws, §§ 355-372. The impossibility, illegality, or excuse relied on here is impossibility, illegality, or excuse by German law. But as the contracts were made here and were to be performed here, the German law relative to performance is of no legal significance in the courts of this country. By our law the bonds were valid when issued; by our law there is no impossibility, illegality, or other excuse for nonperformance, beyond the fact that payment in gold coin is dispensed with.
The argument is made that impossibility of performance created by foreign law is coming to be recognized both here and in England as a form of impossibility in fact and consequently as a defense to an action for breach of contract. The rule has frequently been laid down that impossibility due to change in foreign law is no excuse for breach of contract. Tweedie Trading Co. v. James P. McDonald Co., 114 F. 985 (D.C.N.Y.); Richards & Co. v. Wreschner, 174 App.Div. 484, 156 N.Y.S. 1054, 158 N.Y.S. 1129; Krulewitch v. National Importing & Trading Co., 195 App. Div. 544, 186 N.Y.S. 838; Jacobs v. Credit Lyonnais, 12 Q.B.Div. 589; Ashmore v. Cox, [1899] 1 Q.B. 436. Williston criticizes the rule as applied in cases where the change in foreign law has destroyed the means of performance fixed by the contract or the means of performance contemplated by the parties. Williston on Contracts, §§ 1938, 1951-1953. See, also, Earn Line S. S. Co. v. Sutherland S. S. Co., 254 F. 126 (D.C.N.Y.). But the Williston rule does not aid these defendants. The German laws certainly did not destroy any means of performance fixed by the contract. The defendants' engagement was to pay in New York, and it was not provided in the contract that the funds for payment were to be sent here from Germany. It may not even be maintained that the German laws destroyed the means of performance contemplated by the parties. For all that the bondholders knew or cared when they bought the bonds, the funds wherewith the defendants would pay the bonds might come from deposits maintained by the defendants in countries other than Germany or from business done outside of Germany. Over and above these matters, however, is the fact that the bondholders paid their money down and the defendants had the full benefit of it. The contract was wholly executed on the bondholders' part. Even if the defendants' further performance of their promise to pay were impossible in the eye of the law, the defendants would still be liable to repay what they had borrowed. "The performance of one who has merely contracted to pay money will not generally become excusably impossible; but this may happen when a partly performed contract is forbidden by supervening change of law. Money previously paid in such a case, for which no return has been received, should be recoverable." Williston on Contracts, § 1972. From every point of view, therefore, there is no substance in the argument that the defendants have been discharged by impossibility under the laws of Germany.
The defendants look for comfort to Canada Southern Ry. Co. v. Gebhard, 109 U.S. 527, 3 S.Ct. 363, 27 L.Ed. 1020. There *930 a Canadian railroad company issued bonds in Canada which were payable here. The company later became insolvent and was reorganized under a Canadian statute providing for the issuance of new bonds in place of the old. The great majority of bondholders assented to the reorganization. Several nonassenting bondholders brought suit here on their old bonds. The Supreme Court held that the scheme of reorganization was a type of composition or bankruptcy frequently availed of in England and Canada before the bonds in question had been issued, and that bondholders in the United States as well as those in Canada were bound by the reorganization. Whether the result is consistent with the many cases to the effect that foreign creditors who stay aloof are not bound by a debtor's discharge for insolvency under the laws of his own state is not for me to say. The rule of the Gebhard Case certainly does not extend to the present situation, where the German law invoked by the defendants is not an insolvency law applicable alike to all creditors but is rather a law that discriminates against nonresident creditors. It is safe to say that the Gebhard Case would not have been decided as it was if the Canadian reorganization had provided that one treatment should be given to Canadian creditors and another and less favorable one to all other creditors.
It is true that in the Gebhard Case broad language was used as to the extent to which creditors of foreign corporations submit themselves to the laws of the foreign government. But even in the broadest passages the submission was said to be to "such laws of the foreign government, affecting the powers and obligations of the corporation with which he voluntarily contracts, as the known and established policy of that government authorizes." 109 U.S. 527, at page 537, 3 S.Ct. 363, 370, 27 L.Ed. 1020. It certainly will not be claimed in this case that in 1925 there was a "known and established policy" of the German government to prohibit German corporations from paying their debts to creditors abroad.
The defense based on the German laws of 1933 and 1935 is insufficient. The same result has been reached in a line of cases in the New York courts at nisi prius. Perry v. Norddeutscher Lloyd, 150 Misc. 73, 268 N.Y.S. 525; Sheppard v. Hamburg-Amerikanische Packet-Fahrt-actien-Gesell-schaft, New York Law Journal, March 14, 1934; Glynn v. United Steel Works Corporation, 160 Misc. 405, 289 N.Y.S. 1037.
Second, as to the defense that the plaintiff as trustee for bondholders cannot recover more than nominal damages; that the real right of action on these bonds is vested in the bondholders as a body.
In a state of nature it would be rational to expect that suit on bonds would be brought by bondholders, and that suit to enforce the security would be brought by the trustee. But such a primitive condition has practically ceased to exist with large issues of bonds. As a rule, corporation bonds and accompanying indentures now carry provisions whose purpose, perhaps a laudable one, is to clog the right of bondholders to bring suit on the bonds and to transfer such right in large measure to the trustee.
The bonds and trust indenture involved in this case are of the type now fashionable. A review of their provisions makes it evident that on default by the obligors it was the trustee that should bring suit on the bonds; that the bondholders might sue on the bonds only under the most limited conditions. The bonds themselves gave plain notice to whoever took them that all rights of action on the bonds were "vested exclusively in the trustee," except as otherwise provided in the indenture. The only provision "otherwise" in the indenture was that a bondholder might sue on a bond provided he had first tendered security to the trustee and provided also that despite request to sue by holders of more than 50 per cent. of the bonds the trustee "declined or failed" to bring suit. The last provision itself is indicative of the right of the trustee to bring suit on the bonds. These provisions force the defendants to retreat to the position that the trustee has only a "naked right" to bring suit on the bonds, a right to recover only nominal damages. But there are other provisions in the indenture that force the defendants out of that position as well. It is provided that on default the trustee may sue at law to enforce payment of the bonds, and that on commencement of any action "to obtain judgment for the principal of and premium on, or interest on, the bonds, or for both," the defendants would consent to entry of judgment for principal, premium, interest, costs, expenses, and compensation of the trustee, "and for such other relief as the *931 trustee may be entitled to hereunder." This is a plain covenant that on suit by the trustee on the bonds the defendants would be liable for the full amount due and unpaid. The trustee will of course hold any proceeds recovered in trust for the bondholders, which is no more and no less than is the case wherever a trustee recovers money on a claim held in trust for others. In face of these provisions it is vain for the defendants to say that it was not the intention that the trustee should recover substantial damages.
The cases relied on by the defendants, Mackay v. Randolph Macon Coal Co., 178 F. 881 (C.C.A.8), In re A. J. Ellis, Inc., 242 F. 156 (D.C.N.J.), and Fitkin v. Century Oil Co. (C.C.A.) 16 F.(2d) 22, are beside the mark. In all of them the primary right to bring suit on the bonds remained with the bondholders and was not passed over to the trustee. In the Fitkin Case, for example, the provision in the indenture was that on default the trustee might bring suit to enforce its rights "under this indenture." Clearly, then, the only suits that could be brought by the trustee were suits in reference to the mortgaged property, and so it was held that the trustee could not sue directly on the bonds or file claim based on them. The present case, on the other hand, resembles In re United Cigar Stores Co., Inc., 68 F.(2d) 895 (C.C.A.2), and In re International Match Corp., 3 F.Supp. 445 (D.C.N.Y.), where the right of the trustee to file proof of claim in bankruptcy proceedings against the obligor was sustained. It also resembles several cases in which bondholders were held to have no right to maintain action on the bonds; the ground being that under the particular bonds and indentures the sole right of action on the bonds was in the trustee. Crosthwaite v. Moline Plow Co., 298 F. 466 (D.C.N.Y.); Allan v. Moline Plow Co., 14 F.(2d) 912 (C.C.A.8); Lidgerwood v. Hale & Kilburn Corporation, 47 F.(2d) 318 (D. C.N.Y.).
The defenses relied on are altogether without merit. On the undisputed facts the plaintiff is entitled to partial summary judgment. It will have judgment for $964,500 in principal amount due and unpaid, and $19,290 in premium due and unpaid, as well as for the unpaid interest on the bonds. The action may be continued as to the other sums alleged to be due. The order will be settled on two days' notice.