tag:blogger.com,1999:blog-377924502012-01-29T02:58:14.750-08:00dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.comBlogger271100tag:blogger.com,1999:blog-37792450.post-5779999757403005842009-08-22T16:05:00.000-07:002009-08-22T16:08:39.772-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /> <br /> <br />FindaCase Network <br /><br /><br /> [U] Conyers v. State<br /><br /> COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG<br /><br /> Docket Number available at www.versuslaw.com<br /> Citation Number available at www.versuslaw.com<br /> <br />May 25, 2006<br /><br />DONNIE CONYERS, APPELLANT,<br />v.<br />THE STATE OF TEXAS, APPELLEE.<br /><br />On appeal from the 319th District Court of Nueces County, Texas.<br /><br />The opinion of the court was delivered by: Justice Yañez<br /><br />MEMORANDUM OPINION<br /><br />Before Justices Hinojosa, Yañez, and Garza.<br /><br />By nine issues, appellant pro se Donnie Conyers challenges his conviction for aggravated assault*fn1 after a jury found him guilty and the trial court assessed punishment at fifteen years confinement. Specifically, appellant contends (1) the evidence is legally and factually insufficient to support his conviction (issues one and two), (2) the trial court erred in denying his motion for directed verdict (issue three), (3) the trial court erred in admitting the knife allegedly used by appellant (issue four), (4) the evidence is legally and factually insufficient to support the jury's deadly weapon finding (issue five), (5) the prosecutor engaged in prosecutorial misconduct (issues six and seven), (6) the trial court erred in admitting his pen-packet because it was not properly authenticated (issue eight), and (7) the trial court erred by overruling his Batson challenge (issue nine).*fn2 We affirm.<br /><br />Applicable Law<br /><br />The penal code provides in pertinent part:<br /><br />§ 22.02 Aggravated Assault<br /><br />(a) A person commits an offense if the person commits assault as defined in § 22.01 and the person:<br /><br />(1) causes serious bodily injury*fn3 to another, including the person's spouse; or<br /><br />(2) uses or exhibits a deadly weapon*fn4 during the commission of the assault.*fn5<br /><br />Legal and Factual Sufficiency<br /><br />Claims of legal insufficiency of evidence are reviewed by examining the evidence in the light most favorable to the verdict and determining whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.*fn6<br /><br />We measure the legal sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case.*fn7 "Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried."*fn8<br /><br />The jury, as the trier of fact, may use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when giving effect to the inferences that may be reasonably drawn from the evidence.*fn9 As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded their testimony.*fn10 The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony.*fn11<br /><br />In a factual sufficiency review, we view all of the evidence in a neutral light, and we will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met.*fn12 We are not bound to view the evidence in the light most favorable to the prosecution, and may consider the testimony of all the witnesses.*fn13<br /><br />Disagreeing with the fact finder's determination is appropriate only when the record clearly indicates that such a step is necessary to arrest the occurrence of a manifest injustice; otherwise, due deference must be accorded the fact finder's determinations, particularly those concerning the weight and credibility of the evidence.*fn14 A proper factual sufficiency review must consider the most important evidence that the appellant claims undermines the jury's verdict.*fn15<br /><br />Analysis<br /><br />By his first two issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. By issue three, appellant contends the trial court erred in denying his motion for directed verdict.*fn16<br /><br />Specifically, appellant argues that the evidence presented at trial, including the location of the victim's wounds, shows a "possibility" that the wounds "were self-inflicted." Appellant argues that the jury "was not given the opportunity to adequately entertain the reasonable alternate hypothesis" that the victim stabbed and strangled herself to ensure that appellant would be sent to prison, thereby depriving him of custody of his children. According to appellant, the evidence is factually insufficient because the victim's testimony "could not prove that her injuries were not self-inflicted."<br /><br />In his fifth issue, appellant contends the evidence is legally and factually insufficient to support the jury's finding that the knife used in the assault was a deadly weapon. Appellant argues the evidence is insufficient because he contends the victim's wounds were self-inflicted.<br /><br />At trial, the victim, appellant's wife, testified that he stabbed her in the back and chest, choked her, and continually threatened her life. She testified that this episode did not end until he saw blood on her shirt, at which time he allowed her to go to a hospital. The victim's treating physician, a trauma surgeon, testified that the four-to-six centimeter stab wounds in her back and chest and the bruises on her neck from strangulation, while not resulting in life-threatening injury, were potentially fatal because of the close proximity to the spinal column and heart. This physician and the county medical examiner, both aware of the legal definition of "deadly weapon," also expressed the opinion that the blade of the knife, while only five centimeters long, was used or intended to be used as a deadly weapon. These doctors further testified that human hands could cause serious bodily injury or death if used to strangle someone.*fn17<br /><br />Appellant presented no witnesses or evidence at trial. During closing argument, his attorney suggested that the "real issue" in the case was "whether or not [appellant] attacked [the victim] at all." However, no evidence was presented at trial in support of appellant's hypothesis that the victim's wounds were self-inflicted. The trial court correctly instructed the jury that the arguments of the attorneys were not to be considered as evidence.*fn18<br /><br />After reviewing this record in a light most favorable to the verdict, we hold that the evidence was legally sufficient to support the conviction. Likewise, viewing the evidence in a neutral light, we hold that the evidence was factually sufficient to support the verdict. A rational juror could have found the "serious bodily injury" element, as there was evidence of the victim's substantial risk of death or protracted loss or impairment of the function of her bodily members or organs.*fn19 A rational juror could have also found that the appellant's knife and hands were used or intended to be used as deadly weapons, based on the victim's testimony and the doctors' opinions.*fn20 We also conclude that proof of appellant's guilt and the deadly weapon finding is not so obviously weak as to undermine confidence in the jury's determination, nor is it greatly outweighed by contrary proof.*fn21 We overrule appellant's first, second, third, and fifth issues.<br /><br />In his fourth issue, appellant contends the trial court erred in admitting the knife into evidence because its probative value was greatly outweighed by the danger of unfair prejudice.*fn22 However, appellant's counsel stated that he had "no objection" to admitting the knife into evidence. Thus, appellant has failed to preserve any issue for our review.*fn23 We overrule appellant's fourth issue.<br /><br />In his sixth and seventh issues, appellant argues that the prosecutor engaged in "prosecutorial misconduct." Specifically, appellant complains that at the punishment phase of trial, on cross-examination of a witness for appellant, the prosecutor asked the witness the following two questions: (1) "Were you aware that he broke his second wife's jaw?" and (2) "Were you aware that he kidnapped his children for one year and hid out from his first wife?"*fn24 The record reflects that no objection was raised to the questions. Accordingly, appellant has failed to preserve any issue for review.*fn25 We overrule appellant's sixth and seventh issues.<br /><br />In his eighth issue, appellant contends the trial court erred during the punishment phase of the trial by admitting evidence that was not properly authenticated. Specifically, appellant complains that the court erred in admitting a pen-packet that was not properly authenticated. At trial, appellant objected to admission of the pen-packet under Texas Rules of Evidence 902(1) and 902(2).*fn26 On appeal, however, appellant complains that the pen-packet was "not properly authenticated under Rule 902.4 [sic] Texas Rules of Evidence." Because appellant's contention on appeal is different from his trial objection, he has waived any alleged error.*fn27<br /><br />In his brief, appellant also complains of the admission of State's Exhibits 3 and 4, contending these exhibits were not properly authenticated under Rule 902(4). At trial, appellant objected to "page 2 of Exhibit No. 3" and Exhibit 4 as "not authenticated." Assuming, without deciding, that appellant preserved the issue, we conclude that any error in the admission of Exhibits 3 and 4 was harmless. Exhibits 3 and 4 are copies of documents on file with the Sacramento Superior Court reflecting appellant's prior convictions for drug possession and trafficking. The victim testified, without objection, to the same facts that the documents reflect: that appellant was convicted of heroin possession in California, extradited from California to Florida, and convicted of conspiracy to traffic cocaine and trafficking cocaine in Florida. It is a settled rule that any error in admission of evidence is cured by admission of the same evidence elsewhere without objection.*fn28 We overrule appellant's eighth issue.<br /><br />In his ninth issue, appellant complains that the trial court erred by overruling his Batson challenge. Appellant argues that (1) the State's strikes were gender-oriented, in that eight of its ten strikes were against men and (2) "[t]he group of former jurors that had voted not guilty in other criminal cases were systematically excluded by the state which deprived the defendant due process guaranteed him under the law."<br /><br />Improper strikes based on gender are treated equally at law as strikes based on race; both are universally disapproved for identical reasons.*fn29 When reviewing a Batson challenge, we examine the record in the light most favorable to the trial judge's ruling and reverse only when the ruling is clearly erroneous.*fn30 A ruling is clearly erroneous when, after searching the record, we are left with the definite and firm conviction that a mistake has been committed.*fn31 If the trial judge's ruling is supported by the record, including the voir dire, the prosecutor's explanation of her peremptory challenges, appellant's rebuttal, and any impeaching evidence, then the ruling is not clearly erroneous.*fn32<br /><br />A Batson challenge generally gives rise to a three-step process.*fn33 First, the defendant must make a prima facie case that a venire member was peremptorily excluded on the basis of race or gender.*fn34 Next, the prosecution must come forward with race or gender-neutral reasons for the peremptory strike.*fn35 A neutral explanation in this context means an explanation that is merely based on something other than the race or gender of the juror.*fn36 Finally, the defendant has the opportunity to rebut the State's explanations.*fn37 The burden of persuasion remains with the defendant to prove purposeful discrimination.*fn38 It is in judging the trial court's decision at step three that the "clearly erroneous" standard of appellate review is applied.*fn39 In Purkett v. Elem, the United States Supreme Court explained that "unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."*fn40<br /><br />Here, the prosecutor explained why the State had exercised each of its ten strikes.*fn41<br /><br />Following the State's explanation, the following exchange occurred:<br /><br />Q: [Defense counsel]: Okay. And your purpose in exercising- the fact that more than a proportional number of males were struck, it's your testimony that that was just a coincidence?<br /><br />A: [State]: Yes. Absolutely.<br /><br />Q: [Defense counsel]: Pass the witness.<br /><br />[Court]: Okay. Anything else?<br /><br />[State]: No Your Honor.<br /><br />[Court]: All right. Anything else, [counsel]?<br /><br />[Defense counsel]: Just, we add an additional challenge, Your Honor, that the group of jurors- former jurors that have voted not guilty in criminal cases were systematically excluded by the exercise of preemptory [sic] challenges by the State which deprives the defendant of due process under the 14th amendment.<br /><br />[Court]: All right. Of anything else?<br /><br />[State]: No, Your Honor.<br /><br />[Court]: All right. And your Batson challenge is denied, and we'll proceed with the trial. And I will see you-all back here at 1:30.<br /><br />We conclude that none of the State's explanations reflect an inherently discriminatory intent. Appellant did not attempt to rebut the State's reasons. The trial court's finding that the State's explanations were gender-neutral is supported by the record and is not clearly erroneous.*fn42 We overrule appellant's ninth issue.<br /><br />Having considered all of appellant's issues, they are all either overruled or waived. The judgment of the trial court is AFFIRMED.<br /><br />LINDA REYNA YAÑEZ, Justice<br /><br />Do not publish -- TEX. R. APP. P. 47.2(b).<br /><br /> Opinion Footnotes *fn1 See TEX. PEN. CODE ANN.§ 22.02 (Vernon Supp. 2005).<br /><br />*fn2 See Batson v. Kentucky, 476 U.S. 79 (1986).<br /><br />*fn3 "Serious bodily injury' means bodily injury that creates a substantial risk of death . . . or protracted loss or impairment of the function of any bodily member or organ." TEX. PEN. CODE ANN. § 1.07(46) (Vernon Supp. 2005).<br /><br />*fn4 "Deadly weapon' means: . . . anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." TEX. PEN. CODE ANN. § 1.07(a)(17)(B) (Vernon Supp. 2005).<br /><br />*fn5 TEX. PEN. CODE ANN. § 22.02 (Vernon Supp. 2005).<br /><br />*fn6 Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).<br /><br />*fn7 See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd).<br /><br />*fn8 Malik, 953 S.W.2d at 240.<br /><br />*fn9 Booker v. State, 929 S.W.2d 57, 60 (Tex. App.-Beaumont 1996, pet. ref'd).<br /><br />*fn10 TEX. CODE CRIM. PROC. ANN. art. 38.04 (Vernon 1981); Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).<br /><br />*fn11 Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).<br /><br />*fn12 Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004)).<br /><br />*fn13 Johnson v. State, 23 S.W.3d 1, 10-12 (Tex. Crim. App. 2000).<br /><br />*fn14 Id.<br /><br />*fn15 Sims v. State, 90 S.W.3d 600, 603 (Tex. Crim. App. 2003).<br /><br />*fn16 The standard of review applicable to the denial of a motion for directed verdict is the same as that applied in reviewing the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Havard v. State, 800 S.W.2d 195, 199 (Tex. Crim. App. 1989). We view all the evidence presented during the guilt/innocence phase and if it is sufficient to support the verdict, the trial court did not err in overruling the motion for directed verdict. Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990).<br /><br />*fn17 See, e.g., Cooper v. State, 773 S.W.2d 749, 750 (Tex. App.-Corpus Christi 1989, no writ) ("A fist or hand is not a deadly weapon per se, but it can become a deadly weapon in the manner used depending on the evidence shown.").<br /><br />*fn18 See United States v. Mitchell, 166 F.3d 748, 753 (5th Cir. 1999).<br /><br />*fn19 See TEX. PEN. CODE ANN. § 17.01(a)(46) (Vernon Supp. 2005) (defining "serious bodily injury").<br /><br />*fn20 See TEX. PEN. CODE ANN. § 17.01(a)(17)(B) (Vernon Supp. 2005) (defining "deadly weapon").<br /><br />*fn21 See Escamilla, 143 S.W.3d at 817.<br /><br />*fn22 See TEX. R. EVID.403.<br /><br />*fn23 See TEX. R. APP. P. 33.1;Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000).<br /><br />*fn24 The witness answered "yes" to both questions.<br /><br />*fn25 See TEX. R. APP. P. 33.1;Blue, 41 S.W.3d at 131.<br /><br />*fn26 See TEX. R. EVID.902(1), (2).<br /><br />*fn27 An objection made at trial must mirror the contention on appeal or the point of error will be waived. See Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997); Doyle v. State, 24 S.W.3d 598, 602 (Tex. App.-Corpus Christi 2000, pet. ref'd).<br /><br />*fn28 See, e.g., Willis v. State, 785 S.W.2d 378, 383 (Tex. Crim. App. 1989).<br /><br />*fn29 See Fritz v. State, 946 S.W.2d 844, 846 (Tex. Crim. App. 1997).<br /><br />*fn30 Bausley v. State, 997 S.W.2d 313, 315 (Tex. App.-Dallas 1999, pet. ref'd).<br /><br />*fn31 Id.<br /><br />*fn32 Id.<br /><br />*fn33 Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003); Sparks v.State, 68 S.W.3d 6, 11 (Tex. App.-Dallas 2001, pet. ref'd).<br /><br />*fn34 Simpson, 119 S.W.3d at 268; Sparks, 68 S.W.3d at 11.<br /><br />*fn35 Simpson, 119 S.W.3d at 268; Sparks, 68 S.W.3d at 11.<br /><br />*fn36 Sparks, 68 S.W.3d at 11.<br /><br />*fn37 Simpson, 119 S.W.3d at 268; Sparks, 68 S.W.3d at 11.<br /><br />*fn38 Simpson, 119 S.W.3d at 268; Sparks, 68 S.W.3d at 11.<br /><br />*fn39 Sparks, 68 S.W.3d at 11.<br /><br />*fn40 Purkett v. Elem, 514 U.S. 765, 768 (1995).<br /><br />*fn41 Specifically, the State gave the following reasons for striking the venire members:<br />Juror No. 9: "because he found not guilty in a defrauding the government case" and "seemed responsive to the defense counsel in the case."<br />Juror No. 10: "there had been an arrest for a DWI, and something about there had been a criminal jury but they didn't have a case."<br />Juror No. 13: "was a criminal juror in a rape case and found not guilty."<br />Juror No. 26: "seemed rather wishy-washy in his answers" and said "he'd rather not be here."<br />Juror No. 31: "had also worked for a criminal attorney, and the State was worried about her legal expertise."<br />Juror No. 32: "said that it really would be more appropriate in family court versus in criminal court of an aggravated assault when it's a domestic dispute."<br />Juror No. 33: "had been on a criminal jury. . . . an assault case, and the person was found not guilty."<br />Juror No. 40: "knows [defense counsel]" and "also raised a lot of concerns about guns and knives being deadly weapons."<br />Juror No. 45: "had had charges with a knife brought against him."<br />Juror No. 46: "had found not guilty on an assault case with an inmate who was charging a jailer."<br /><br />*fn42 See Simpson, 119 S.W.3d at 268.<br /><br />20060525<br /><br />© 1992-2006 VersusLaw Inc.; Pat. Pending<br /><br /><br />Powered by VersusLaw, Inc.<br />Home | Advertise | About | Feedback | Terms | Privacy Policy | FAQ<br />All contents © Copyright 2008 - 2009 VersusLaw, Inc. Bellevue, WA, USA. All rights reserved<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-577999975740300584?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-38016249649160107042009-07-20T18:00:00.000-07:002009-07-20T18:01:58.345-07:00Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-09-00346-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br />IN RE: GLENN LACY DURHAM<br /><br /><br />On Petition for Writ of Mandamus.<br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Chief Justice Valdez and Justices Yañez and Benavides<br /><br />Per Curiam Memorandum Opinion (1)<br /><br />Relator, Glenn Lacy Durham, has filed a pro se petition for writ of mandamus in this Court, complaining generally the respondent, the Honorable J. Manuel Banales, the presiding judge of the 105th District Court of Kleberg County, Texas, has committed error in dismissing relator's "Motion to Set Aside Indictment" for want of jurisdiction.<br /><br />We affirmed relator's conviction for murder and first degree felony injury to a child on direct appeal. See Durham v. State, No. 13-99-00045-CR, 2001 Tex. App. LEXIS 1180, at *2 (Tex. App.-Corpus Christi Feb. 22, 2001, pet. ref'd) (en banc). Relator's petition for writ of mandamus constitutes a collateral attack on his conviction. Such an attack falls within the scope of a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008). While courts of appeals have mandamus jurisdiction in criminal matters, only the Texas Court of Criminal Appeals has jurisdiction in final post-conviction felony proceedings. See id. art. 11.07 § 3; Ater v. Eighth Court of Appeals, 802 S.W.2d 241, 243 (Tex. Crim. App. 1991) (orig. proceeding); In re McAfee, 53 S.W.3d 715, 717 (Tex. App.-Houston [1st Dist.] 2001, orig. proceeding). The Court, having examined and fully considered the petition for writ of mandamus, is of the opinion that we lack jurisdiction to consider this matter. Therefore, the petition for writ of mandamus is DISMISSED for want of jurisdiction. See Tex. R. App. P. 52.8(a).<br /><br /><br />PER CURIAM<br /><br /><br />Do not publish. See Tex. R. App. P. 47.2(b).<br /><br /><br />Memorandum Opinion delivered and filed<br /><br />this 23rd day of June, 2009.<br /><br /><br /><br />1. See Tex. R. App. P. 52.8(d) ("When denying relief, the court may hand down an opinion but is not required to do so."); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-3801624964916010704?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-68259340127763658132009-07-20T16:45:00.000-07:002009-07-20T16:47:07.873-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /><br /> Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-08-00668-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />THE STATE OF TEXAS, Appellant,<br /><br /><br />v.<br /><br /><br />DEBRA SALINAS, Appellee.<br /><br />On appeal from the 117th District Court<br /><br />of Nueces County, Texas.<br /><br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Justices Rodriguez, Garza, and Vela<br /><br />Memorandum Opinion by Justice Rodriguez<br /><br /><br />A grand jury indicted appellee Debra Salinas for the state-jail felony of prostitution. The trial court granted Salinas's motion to quash the indictment. By one issue, appellant, the State of Texas, argues that the trial court did not have the authority to hear evidence in a pre-trial hearing in order to quash a facially valid indictment. We reverse and remand.<br /><br />I. BACKGROUND<br /><br />The indictment, dated July 10, 2008, alleged that Salinas offered to engage in prostitution on or about April 23, 2008, and had previously been convicted three or more times of the same offense in the following Nueces county court cause numbers: CR-97-43636-3 on July 11, 1997; CR-97-5781-3 on September 11, 1997; CR-98-4662-2 on November 30, 1999. A pre-trial hearing on a motion to quash the indictment was held on November 5, 2008.<br /><br />As grounds for the motion to quash, Salinas attacked the prior convictions used to enhance the prostitution charge from a misdemeanor to a state-jail felony. Although Salinas conceded that the indictment alleged three prior convictions, she contended that two of the prior convictions, trial court cause numbers CR-97-43636-3 and CR-97-5781-3, pertained to the same offense because the judgment and sentencing documents listed the same offense date of June 14, 2007. As support for her contentions, Salinas tendered two exhibits, the judgment and sentencing documents for trial court cause numbers CR-97-43636-3 and CR-97-5781-3, which the trial court admitted and considered. On the basis of Salinas's exhibits, the trial court found the indictment defective and granted the motion to quash. This appeal ensued.<br /><br />II. STANDARD OF REVIEW In reviewing a motion to quash, "the sufficiency of an indictment is a question of law." State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); State v. Meadows, 170 S.W.3d 617, 619 (Tex. App.-El Paso 2005, no pet.); see also Crenshaw v. State, No. 13-05-00314-CR, 2006 Tex. App. LEXIS 7596, at *2 (Tex. App.-Corpus Christi Aug. 28, 2006, pet. ref'd) (mem. op., not designated for publication). Because the credibility of a witness is not required when resolving a question of law, the trial court is in no better position than the appellate court to make a decision. Moff, 154 S.W.3d at 601. Thus, the standard of review for a determination of the sufficiency of an indictment is de novo. Id. III. DISCUSSION In its sole issue, the State alleges that the trial court did not have authority to hear evidence in the pre-trial hearing. It is well established that an indictment returned by a legally constituted grand jury is valid on its face and is enough to warrant a trial on its merits. State v. Rosenbaum, 910 S.W.2d 934, 947 (Tex. Crim. App. 1994) (dissenting op. adopted on reh'g); Meadows, 170 S.W.3d at 620. Indictments "must be facially tested" as pleadings. Id. at 620 (citing Rosenbaum, 910 S.W.2d at 948).<br /><br />The indictment in this case alleges that Salinas had three prior prostitution convictions. A prostitution offense may be elevated from a class A misdemeanor to a state-jail felony offense if "the actor has previously been convicted three or more times of [the same] offense." Tex. Pen. Code. Ann. § 43.02 (c) (Vernon 2003). When a statute changes an offense from a misdemeanor to a felony because of prior convictions, the prior convictions do not function merely to enhance the punishment; they become an element of the new offense. See Calton v. State, 176 S.W.3d 231, 232 (Tex. Crim. App. 2005) (stating that, in a similar evading arrest statute, prior convictions were an element of the felony offense); Moore v. State, 916 S.W.2d 537, 539 (Tex. App.-Dallas 1995, no writ) (stating that, in a similar theft statute, the use of the defendant's prior convictions created a new felony offense instead of simply enhancing the misdemeanor punishment).<br /><br />The sufficiency of the elements of an offense alleged in an indictment "cannot be supported or defeated by evidence at a pre-trial hearing." Meadows, 170 S.w.3d at 620 (citing Rosenbaum, 910 S.W.2d at 948). Rather, the trial court's review in a pre-trial motion is limited to issues that can be resolved before trial. See State v. Iduarte, 268 S.W.3d 544, 551-552 (Tex. Crim. App. 2008) (citing Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005)). The court cannot address the merits of a case in a pre-trial hearing. Id. When a defendant asks the trial court in a pre-trial setting to determine the propriety of his or her prior convictions when those convictions are actually elements of the indicted offense, the defendant is asking the trial court to reach the merits of the case. See Woods, 153 S.W.3d at 415 n.7.<br /><br />In this case, the issue addressed in the pre-trial hearing was whether or not the convictions alleged in the indictment were sufficient to enhance Salinas's crime from a misdemeanor to a state-jail felony. As previously explained, previous convictions are elements of an enhanced offense when the enhancement increases the offense from a misdemeanor to a felony. See Calton, 176 S.W.3d at 232. In Meadows the indictment against the defendant alleged facially valid enhancement allegations. Meadows, 170 S.W.3d at 620. The assault statute specified what prior convictions were needed to enhance the offense from a class A misdemeanor to a third-degree felony. Id. During the pre-trial hearing on a motion to dismiss, the defendant offered into evidence a judgment and sentencing document from a previous conviction to prove that the conviction could not be used for enhancement because the document did not contain the language needed to affirm a "family violence" finding. Id. The trial court did not facially test the indictment as a pleading. Id. Instead, the trial court entertained the judgment and sentencing document, found that one of the convictions was not sufficient for enhancement, and granted the motion to dismiss. Id. The appellate court reversed the trial court stating the trial court lacked authority "to conduct a hearing to determine whether the offense used for enhancement purposes was valid." Id.; see State v. Boado, 8 S.W.3d 15, 17 (Tex. App.-Houston [1st Dist.] 1999), pet. dism'd) (holding that the trial court had no authority to test a duty alleged in the indictment during a pre-trial hearing on the defendant's motion to quash); State v. Habren, 945 S.W.2d 225, 227 (Tex. App.-Houston [1st Dist.] 1997, no writ) (holding that the trial court did not have authority to test the sufficiency of a facially valid indictment).<br /><br />The trial court similarly erred in this case. Here, the convictions alleged in the indictment are also facially valid and are elements of the state-jail felony of prostitution. The trial court cannot compel the State to offer proof of the elements of the offense to prevent the indictment from being quashed. See Meadows, 170 S.W.3d at 620; see Iduarte, 268 S.W.3d at 552 (stating that when the issue is an element of the offense itself, the issue cannot be decided by the trial court during a pre-trial hearing); Woods, 153 S.W.3d at 415 (explaining that pre-trial motions address preliminary matters, not merits of a case such as the elements of the offense). Just as the court in Meadows exceeded its authority in a pre-trial hearing when it considered a judgment and sentencing document, this trial court did the same when it considered the judgment and sentencing documents for trial court cause numbers CR-97-43636-3 and CR-97-5781-3 in deciding whether to quash the indictment. Because the trial court failed to confine its inquiry to the convictions on the face of Salinas's indictment, it made "a factual determination regarding the sufficiency of the evidence to prove the enhancement allegation." See Meadows, 170 S.W.3d at 620. Thus, the trial court's decision reached the merits of the case, which should not have been addressed in a pre-trial hearing. (1)<br /><br />See id. Thus, we conclude that the trial court erred in granting the motion to quash the facially valid indictment. The State's first issue is sustained.<br /><br />IV. Conclusion<br /><br />Accordingly, we reverse and remand for proceedings consistent with this opinion.<br /><br />NELDA V. RODRIGUEZ<br /><br />Justice<br /><br /><br />Do not publish.<br /><br />Tex. R. App. P. 47.2(b).<br /><br /><br />Memorandum Opinion delivered and<br /><br />filed this 9th day of July, 2009.<br /><br />1. The State also argues that the exception to test enhancement convictions in a pre-trial hearing is not applicable here because the enhancement is not based on a conviction that has been determined void. We agree. The Texas Court of Criminal Appeals gives defendants a narrow window to challenge facially valid indictments when enhancement is based on a voided conviction. Ex parte Patterson, 969 S.W.2d 16, 19-20 (Tex. Crim. App. 1998). In Patterson, a burglary conviction used to enhance the defendant's capital murder conviction was subsequently declared void by the Texas Criminal Court of Appeals. Id. Thus, the State could not use the voided conviction to enhance Patterson's offense. Id. However, this exception does not apply in this case because the State is not relying on a voided judgment to enhance Salinas's offense. During the pre-trial hearing, the trial court did not quash the indictment because one of the two convictions was void. The trial court simply pointed out that both convictions had the same offense date.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-6825934012776365813?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-41585902794186052722009-06-30T01:28:00.000-07:002009-06-30T01:31:37.378-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /><br /> Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-06-626-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />JUAN CARLOS LOPEZ, Appellant,<br /><br /><br />v.<br /><br /><br />THE STATE OF TEXAS, Appellee.<br /><br />On appeal from the 105th District Court of Nueces County, Texas.<br /><br /><br /><br />O P I N I O N<br /><br /><br />Before Chief Justice Valdez and Justices Yañez and Benavides<br /><br />Opinion by Justice Yañez<br /><br />Appellant, Juan Carlos Lopez, was indicted on two counts of aggravated sexual assault of a child. (1) The jury found Lopez guilty on both counts, and imposed a punishment of life imprisonment and a $10,000 fine for each count. Lopez now appeals his judgment of conviction, arguing through five issues that reversible error occurred at trial. Because we find that trial court error affected Lopez's substantial rights, we reverse and remand for a new trial.<br /><br />I. Background<br /><br />The State's factual theory of this case at trial was as follows. In the afternoon of June 21, 2004, Lopez was driving in Corpus Christi when he came across the complainant in this case (hereinafter fictitiously referred to as "John"). John, a sixteen-year-old boy, was sitting at a bus stop by himself when Lopez approached in his vehicle. Despite not knowing Lopez, John entered Lopez's vehicle. Lopez gave John a ride to a residence belonging to one of John's friends. He also gave John his cell phone number and invited John to "party" with him that night.<br /><br />Later that day, John called Lopez to discuss hanging out. Lopez then met John outside the friend's residence, and the two drove to Lopez's apartment. While at the apartment, Lopez and John drank liquor, smoked marihuana, talked, and watched television. At some point, John's eyes began burning and he fell asleep. He briefly awoke to see Lopez "sucking [his] penis." John fell asleep and then briefly awoke again, at which point he found himself being sodomized by Lopez. John did not have the strength to move during this time. When John fully awoke in the morning, he observed that (1) he was only wearing his boxers and shirt, but not his pants; (2) there appeared to be fecal stains on his shirt and the inside of his boxers; (3) his anus was sore; and (4) he felt "sperm" around his anus. John asked Lopez what happened, and Lopez only responded that John had gotten "fucked up." On September 1, 2004, John made an outcry regarding the June 21 incident. The outcry led to an investigation that resulted in Lopez's indictment and trial.<br /><br />Lopez's theory of the case was as follows. Lopez stopped near John at the bus stop because he mistook John for someone he knew. Lopez quickly realized his mistake, but he and John nevertheless began conversing. John asked Lopez for a ride, and Lopez obliged. Prior to exiting Lopez's vehicle, John asked for and received Lopez's phone number. John wanted the number because he wanted to hang out with Lopez later that day. John later called Lopez about hanging out. Lopez then picked John up and took him to his apartment, where they talked and watched television. At John's urging, the two also drank alcohol and smoked marihuana provided by Lopez, who was not aware of John's age. At some point, Lopez went to his bedroom to go to sleep, leaving John in the living room to sleep on a couch. No sexual contact occurred between them. When Lopez awoke in the morning, he saw John sitting on the couch, waiting for Lopez to awake so he could be driven to his sister's residence. Lopez did not see any stains on John's clothing. He drove John to his sister's residence, and the two did not speak to each other again.<br /><br />At trial, the State sought to convict Lopez on two counts of aggravated sexual assault. According to the State, the two sexual assaults occurred when Lopez caused John's sexual organ to contact or penetrate Lopez's mouth, (2) and when Lopez caused the penetration of John's anus. (3) At the time of the assaults, Lopez had the human immunodeficiency virus (HIV), the virus which causes acquired immune deficiency syndrome (AIDS). Furthermore, the State's theory of the case was that both sexual assaults occurred without the use of a condom, which allowed John to come into contact with Lopez's bodily fluid. The State thus alleged the aggravating element of the assaults to be the intentional and knowing use or exhibition of a deadly weapon in the course of the assaults (4)--namely, Lopez's bodily fluids, which in the manner of their use were capable of causing death and serious bodily injury. (5) Lopez was ultimately convicted on both counts of aggravated sexual assault.<br /><br />II. Expert Testimony on John's Truthfulness & Credibility<br /><br />In his first issue, Lopez argues that the trial court erred (1) when it permitted Texas Ranger Roberto Garza, an investigator, to express his opinion on John's truthfulness, and (2) when it permitted Dr. Sam Hill III, a clinical psychologist, to express an opinion as to the truthfulness of the class of persons to which John belonged.<br /><br />A. Garza's Testimony<br /><br />Garza led the investigation into John's allegations against Lopez. On direct examination, the State asked Garza: "From your experience investigating these types of cases involving teenage boys, do teenage boys want to talk about being anally raped?" Lopez's counsel objected to the question, arguing that Garza was not qualified to answer. The trial court sustained the objection and directed the State to "create a predicate." The State then asked Garza a number of questions relating to his experience in investigating child sexual assaults, which ultimately led to the following verbal exchange:<br /><br />Q [THE STATE]. In this particular case, did you believe that an anal rape had occurred?<br /><br />[LOPEZ'S COUNSEL]: Objection, Your Honor. That's completely outside the province--that is outside the realm of his expertise. It invades the province of the jury. It's irrelevant. It's prejudicial and under the Ducket (sp.ph.) Case, we object, Judge.<br /><br />THE COURT: It's as a result of his investigation. Overruled.<br /><br /><br />[GARZA]: Based on the information that we received, yes, I believed that there had been an anal sex or an anal penetration that had been [sic] or anal assault on this victim because of how he described that he felt pain or soreness in his butt, like he first said it.<br /><br /><br />Lopez argues that the trial court, in permitting Garza to give his opinion because it was the "result of his investigation," inferred that Garza was "capable of rendering an opinion on the complainant's truthfulness based on his expertise in investigating sexual assault cases." The State argues that, if viewed in the context of his earlier testimony, it is clear that Garza's complained-of testimony is not an opinion on John's truthfulness, explaining:<br /><br />The State's question to Ranger Garza as to whether he believed that an anal rape occurred . . . did not directly question the truthfulness of the victim, but only asked for Ranger Garza's deduction from the context of what was alleged and the physical evidence he had at the time of his investigation. In fact, only later did the victim reveal to Ranger Garza that he was anally raped, such that Ranger Garza could not have formed an opinion about his truthfulness at the time of his initial investigation. Accordingly, in context, it is clear that the prosecutor was merely asking whether the circumstances of the assault . . . suggested an anal rape.<br /><br /><br />We reject the State's explanation. We conclude the State asked a question that was intended to illicit an inadmissible opinion on John's truthfulness, and the question accomplished this objective.<br /><br />There was no physical evidence in this case; there was only an allegation from John that physical evidence existed before he disposed of it. The only basis for Garza's belief that an anal rape occurred was John's outcries. Moreover, contrary to the State's contention, Garza did not base his belief on evidence provided to him before he met John. Garza testified that he believed John was sexually assaulted "because of how he described that he felt pain or soreness in his butt." The only time John offered such a description was during an interview at the Children's Advocacy Center, (6) which Garza observed first-hand. Accordingly, Garza's complained-of testimony expressed an opinion on John's truthfulness, and the trial court erred in allowing this opinion to be presented to the jury. (7)<br /><br />At a later point in his direct examination, however, Garza proffered an additional opinion on John's truthfulness:<br /><br />Q [THE STATE]. Okay. Did [John] come out and say the defendant put his anus--I mean, put his penis in the victim's anus?<br /><br /><br />A [GARZA]. No, he did not.<br /><br /><br />Q. Does that mean, then, that it just didn't happen, in your opinion?<br /><br /><br />A. No, it just means that he was too embarrassed to talk about it. (8)<br /><br /><br />By affirmatively rejecting the possibility that the sexual assault did not occur, Garza expressed an opinion, without objection, on John's truthfulness. Accordingly, any error arising from Garza's complained-of testimony was rendered harmless. (9)<br /><br />B. Dr. Hill's Testimony<br /><br />Dr. Hill, a clinical psychologist, was an expert witness for the State. During direct examination, Dr. Hill testified as follows:<br /><br />Q [THE STATE]. Have you evaluated the truthfulness of teenage boy victims when they outcry about sexual assault?<br /><br /><br />[LOPEZ'S COUNSEL]: Judge, object. This is--<br /><br /><br />[THE COURT]: Overruled. You can answer that one.<br /><br /><br />A [DR. HILL]. Yes, ma'am.<br /><br /><br />Q. And what is--what has your evaluation found?<br /><br /><br />[LOPEZ'S COUNSEL]: Judge, I'd like to make an objection. Judge, I object. This is invading the province of the jury. I'd object that it is not relevant, and it's relevant--the prejudice outweighs the probative value. There is no showing that this witness is competent to say when someone is telling the truth to something that he himself has not observed.<br /><br /><br />[THE COURT]: That wasn't the question. You're overruled.<br /><br /><br />[DR. HILL]: What was the question?<br /><br /><br />Q. What is your impression when you have evaluated whether teenage boys, that their truthfulness about things like this?<br /><br /><br />A. Generally, they tell the truth.<br /><br /><br />[LOPEZ'S COUNSEL]. Judge, I'm renewing my objection. This witness can't possibly know.<br /><br /><br />THE COURT: This is based upon his study. It's his evaluation. That's all it is. Based upon his experience as a psychiatrist, psychologist.<br /><br /><br />[THE STATE]: Pass the witness. (10)<br /><br /><br />Dr. Hill's aforementioned testimony (hereinafter referred to as "truth testimony") proffered an opinion regarding the truthfulness of the class of persons to which John belonged, which crossed the line between assisting the jury and attempting to replace the jury as trier of fact with respect to John's credibility. (11) Because "[a]n expert who testifies that a class of persons to which the victim belongs is truthful is essentially telling the jury that they can believe the victim in the instant case as well," (12) we find that the trial court abused its discretion when it allowed Dr. Hill's truth testimony to go before the jury. (13)<br /><br />Though we find that Lopez preserved this error for review, we must still determine whether the error was rendered harmless by Garza's unobjected-to testimony on John's truthfulness. (14) We have reviewed what other appellate courts have done in this situation and have found mixed results. The Twelfth Court of Appeals, for instance, recently issued an opinion reversing a conviction for the sexual assault of a child because a clinical psychologist indirectly expressed her belief that the complainant's assault claim was truthful. (15) The court's harm analysis ignored whether the psychologist's testimony was rendered harmless because of the testimony of an investigator, who was permitted to testify that he believed the complainant. (16) The Fifth Court of Appeals, on the other hand, recently issued an opinion finding an investigator's opinion on a child-complainant's truthfulness to be harmless due to a detective and the complainant's grandmother expressing similar opinions without objection. (17) Lastly, the Fourteenth Court of Appeals, in In re G.M.P., determined that a police officer's opinion on the child-complainant's truthfulness was not rendered harmless by the complainant's mother, who proffered a similar opinion without objection. (18) The court based its decision on the belief that the "mother's opinion of her son's truthfulness was not the same caliber of evidence as the officer's expert testimony," which was "likely to carry exceptional weight and an aura of reliability." (19)<br /><br />We agree with the nature of In re G.M.P.'s reasoning, which was similarly employed by the court of criminal appeals in Armstrong v. State. (20) The defendant in Armstrong was found guilty of capital murder. (21) During the punishment phase, the deceased's wife testified for the State about the deceased's good character. (22) The defendant claimed the wife's testimony was admitted in error, and the court of criminal appeals agreed. (23) The State argued that the wife's testimony was rendered harmless because the same evidence was admitted elsewhere through multiple witnesses without the defendant's objection. (24) The court rejected this argument, explaining: "The glancing testimony of the other witness to deceased's niceness cannot be considered 'the same facts'; nor was it of remotely the same emotional caliber as [the wife's] testimony, in terms of likelihood of inflaming the jury's emotions." (25) Employing the reasoning used in Armstrong and In re G.M.P., we find that Dr. Hill's truth testimony was not rendered harmless by Garza's testimony, for Dr. Hill's truth testimony was likely to carry greater weight with the jury, despite the fact that both witnesses testified as experts. The reasons for this stem from (1) Lopez having rebutted the import of Garza's testimony during cross-examination, but not Dr. Hill's, and (2) the State having emphasized Dr. Hill's truth testimony to the jury during closing argument, but not Garza's.<br /><br />The admission of Dr. Hill's truth testimony is non-constitutional error, (26) and a non-constitutional error "that does not affect substantial rights must be disregarded." (27) Substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. (28) When a trial court errs by improperly admitting evidence, an appellate court determines the likelihood that the error adversely affected the jury's decision by considering everything in the record, including: (1) testimony or physical evidence admitted for the jury's consideration; (2) the nature of the evidence supporting the verdict; (3) the character of the alleged error and how it might be considered in connection with other evidence in the case; (4) the jury instructions; (5) the State's theory and any defensive theories; (6) closing arguments; (7) voir dire; and (8) whether the State emphasized the error. (29)<br /><br />As previously stated, the State asked Dr. Hill whether teenage boys are truthful when they make a sexual abuse outcry, to which he responded: "Generally, they tell the truth." Though this testimony is not an incredibly impactful endorsement of John's truthfulness, the State exacerbated its impact when it overstated the testimony during closing argument, stating: "Dr. Sam Hill told you that teenage boys are very embarrassed about [being sexually assaulted]. And most importantly, Dr. Sam Hill told you that teenage boys do not lie about these kinds of things." Lopez promptly objected to this statement and requested an instruction to disregard. The trial court sustained the objection, but declined to instruct the jury to disregard, thus nullifying any practical benefit of having sustained the objection.<br /><br />Dr. Hill's truth testimony was further bolstered by the trial court, which allowed Dr. Hill to testify as to the truthfulness of teenage boys because--as the court explained in front of the jury--his testimony was "based upon his study," "[b]ased upon his experience as a . . . psychologist." Case law clearly reveals that the trial court's rationale for admitting Dr. Hill's testimony is plainly wrong, and contrary to controlling law. As explained by the court of criminal appeals in Yount v. State:<br /><br />While a witness may possess "scientific, technical, or other specialized knowledge" concerning sexually abused children, we seriously question whether any such person also possesses "scientific, technical or other specialized knowledge," beyond the realm of the jury, regarding the truthfulness of those children. As stated by one court, "Psychologists and psychiatrists are not, and do not claim to be, experts at discerning truth. Psychiatrists are trained to accept facts provided by their patients, not to act as judges of patients' credibility." (30)<br /><br /><br />Lopez's defense at trial was that John had fabricated the sexual abuse allegations to avoid being schooled in a discipline program called the Alternative Education Program, which John began re-attending the day before he made his initial outcry. The outcome of the case thus depended on whether the jury believed John to be credible, or believed that he had fabricated the charges for the reason proffered by Lopez. Accordingly, any harm attributable to Dr. Hill's truth testimony stems from its potential to unduly tilt the jury towards believing John's testimony.<br /><br />Considering the record as a whole, we are left with a fair assurance that the trial court's error influenced the jury only slightly. Though the State emphasized Dr. Hill's truth testimony during closing argument, the trial court subsequently instructed the jury that it was "the exclusive judge of the facts proved, of the credibility of the witnesses, and of the weight to be given their testimony." The jurors had ample evidence before them through which they could form their own opinions of John's truthfulness. The jury saw and heard John testify about the sexual assault with specific detail, giving them an opportunity to evaluate his maturity and credibility. The jury also heard John's sister testify about his behavior after Lopez left him at her home. The sister testified that John appeared "dazed," "confused," and "just looked kind of thrown off." She testified that she saw a large stain on John's shirt, which coincided with John's own testimony. She also testified that John informed her of his belief that Lopez had placed something in his drink, which caused his eyes to start burning. Lastly, the jury heard from witnesses that received John's outcries. The individual who heard John's initial outcry testified that John was crying uncontrollably before and during the outcry. Witnesses who heard subsequent outcries testified that John expressed a great deal of emotion in discussing what occurred between him and Lopez.<br /><br />Judging the nature of the evidence supporting the verdict and the character of the error and its relationship with other evidence, we conclude the trial court's error did not have a substantial and injurious effect or influence in determining the jury's verdict and did not affect Lopez's substantial rights. Therefore, we disregard the trial court's non-constitutional error as harmless. We resolve Lopez's first issue against him.<br /><br />III. Improper Jury Argument<br /><br />In his fifth issue, Lopez argues that the trial court erred when it overruled his objection concerning jury argument the State made during its rebuttal closing argument at the guilt phase of the trial. The court of criminal appeals recently set out the law applicable to this issue in Brown v. State, wherein the court stated:<br /><br />It is the duty of trial counsel to confine their arguments to the record; reference to facts that are neither in evidence nor inferable from the evidence is therefore improper. Thus, proper jury argument generally falls within one of four general areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea for law enforcement. The arguments that go beyond these areas too often place before the jury unsworn, and most times believable, testimony of the attorney. Consequently, error exists when facts not supported by the record are interjected in the argument, but such error is not reversible unless, in light of the record, the argument is extreme or manifestly improper. (31)<br /><br /><br />In order to preserve the error for appellate review, however, there must be a proper objection. (32) The objection must state a specific ground to be sufficient, (33) and the ground of error asserted at trial is the only ground that may be asserted on appeal. (34)<br /><br />Lopez argues that the State "engaged in improper jury argument by inserting new and harmful facts into the trial." The pertinent portion of the prosecutor's argument is as follows:<br /><br />[THE STATE]: Look at the records of the defendant's phone calls. Notice how many times he was calling different numbers during the day, the same number. It almost looked like he was angry at someone or he'd just broken up with someone. Something was going on that day and something didn't go right for the defendant, so he turned to [John], we think, in order to--<br /><br />[LOPEZ'S COUNSEL]: Judge, I'll object. She's arguing outside the record. There's no evidence.<br /><br />[THE STATE]: Excuse me. I'm talking about the cell phone records.<br /><br />THE COURT: It's argument. Overruled.<br /><br />[THE STATE]: Okay. Look at that. Something was going on. He was upset. He couldn't get one lover, so he decided to pick on this child.<br /><br /><br />Lopez asserts "[t]he State engaged in complete speculation when it concocted a story about Lopez being unable to get over one lover and therefore, prey[ed] on the complainant."<br /><br />In response, the State first argues that any error stemming from the complained-of jury argument was not preserved for review. The State contends that Lopez's objection was not timely because it was able to state all of the following before an objection was made: "It almost looked like he was angry at someone or he'd just broken up with someone. Something was going on that day and something didn't go right for the defendant, so he turned to [John], we think, in order to--[.]" (35) Paradoxically, the State also contends that Lopez waived error by objecting too early, explaining: "Defendant fails to show or preserve error where he makes a premature objection by cutting off the prosecutor's argument in mid-sentence, when, although that argument may appear to be headed in an improper direction, the sentence might nevertheless have been completed in a permissible manner."<br /><br />We find that Lopez's objection was neither too early, nor too late. Lopez's objection was sufficiently prompt to preserve the claimed error for appellate review. The objection was not too early because the nature of the State's argument was readily perceptible at the point Lopez interjected, (36) and Lopez's perception of where the argument was heading was proven correct when the State later completed the argument. We further reject the State's contention that Lopez waived error by not objecting again after the State completed the argument. Because we find no basis for waiver, we find the claimed error was preserved for our review.<br /><br />The State next argues that the jury argument was proper. The jury argument was based, in part, on Lopez's cell phone records. The records, admitted at trial, revealed outgoing and incoming calls from Lopez's cell phone on June 21, 2004--the day Lopez and John met. More specifically, the records revealed the following: (1) from 7:36 p.m. to 8:34 p.m. on the night in question, eight outgoing phone calls were made to a number we shall hereinafter fictitiously refer to as "777-7777"; all calls lasted less than a minute; (2) at 8:34 p.m., John called Lopez's cell phone; the call lasted less than a minute; (3) from 8:37 p.m. to 9:27 p.m., fifteen outgoing phone calls were made to 777-7777; all calls lasted less than a minute; (4) at 9:43 p.m., John again called Lopez's cell phone; the call lasted less than a minute; and (5) after John's second call was received, no additional calls were made to 777-7777 for the remainder of the night or the following day.<br /><br />The possessor of the 777-7777 number was never identified at trial. The State questioned Lopez about the number, but he testified that he did not recognize the number and did not recall calling it on the night in question. In addition to Lopez's phone records, the jury argument was also based on the testimony of Jeremiah Avalos, Lopez's former lover, and Karen Garcia, Lopez's friend. Avalos testified that he and Lopez had ended their relationship on less-than-amicable terms shortly before June 2004, and Garcia testified that Lopez and Avalos's relationship was "off-and-on" in June 2004. Relying on all this evidence, the State defends the jury argument, explaining:<br /><br />[E]vidence at trial suggested that Lopez was in the process of breaking up with Avalos at the time, and that his phone records reflected numerous unexplained calls, many to the same telephone number, just before Lopez picked up and assaulted [John]. Numerous calls to the same number within a short span of time do reasonably suggest some sort of tension between the people involved. It is further reasonable to infer the possibility, or even the probability, considering the context of Lopez breaking off his homosexual relationship with Avalos and his later homosexual assault that night on [John], that this tension likewise involved a homosexual encounter of some sort. Completing this picture, it is finally also reasonable to infer that the frustration and disappointment of a failed homosexual encounter caused Lopez to then center his attention on [John] as a substitute partner. (37)<br /><br /><br />"It is . . . well established that counsel may in argument draw from the facts in evidence all inferences that are reasonable, fair, and legitimate and he will be afforded latitude without limitation in this respect so long as his argument is supported by the evidence and offered in good faith." (38) "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." (39) In the instant case, the State's suggestion that Lopez was experiencing frustration and disappointment from "a failed homosexual encounter" prior to meeting with John--thus prompting him to sexually assault John--is not a "logical consequence" that can be deduced from Lopez's recent termination of a long-term relationship and the numerous and unexplained 777-7777 calls.<br /><br />We find that the jury argument was premised on speculation--"mere theorizing or guessing about the possible meaning of facts and evidence presented." (40) The evidence at trial revealed that Lopez and Avalos had broken-up numerous times, and that it was Lopez who had recently elected to end the relationship. There was no evidence showing that Lopez had a history of violent behavior upon breaking-up with Avalos, or that Lopez's recent break-up had left him in a mentally or emotionally unstable state. There was no evidence relating to Lopez's dating habits or his sexual encounters once his relationship with Avalos ended. There was no evidence that the 777-7777 number belonged to a male homosexual that knew Lopez. There was no evidence that the 777-7777 number even belonged to an individual, as opposed to a place of business.<br /><br />Moreover, the fact that there are a limited number of explanations for the numerous 777-7777 calls does not change the speculative nature of the State's jury argument. In Felder v. State, for example, the defendant was accused of capital murder. (41) The evidence showed that the victim "was stabbed repeatedly 'back and forth' in the head and neck." (42) During closing argument, the prosecutor suggested to the jury that the defendant's motive for puncturing the victim's neck eight times--punctures that were medically proven to have not caused the victim's death--was to torture the victim or assess whether the victim was still breathing. (43) In assessing the propriety of the jury argument, the court of criminal appeals stated: "It seems clear to us that, taken as a whole, this argument invites the jury to speculate as to appellant's motive in inflicting the neck wounds." (44)<br /><br />For all these reasons, we find that the State's jury argument invited the jury to speculate as to Lopez's motive for sexually assaulting John, and that the trial court thus erred in admitting the argument over Lopez's objection. Because the trial court's error was non-constitutional in nature, (45) we must disregard it if it did not affect Lopez's substantial rights. (46) We make this determination by balancing the severity of the misconduct (i.e., the prejudicial effect), any curative measures, and the certainty of conviction absent the misconduct. (47) In evaluating the severity of the misconduct, we must assess whether the jury argument is extreme or manifestly improper by looking at the entire record of final arguments to determine if there was a willful and calculated effort on the part of the State to deprive Lopez of a fair and impartial trial. (48)<br /><br />We do not believe the jury argument was a willful and calculated effort on the part of the State to deprive Lopez of a fair and impartial trial. Though no curative measure was taken in response to the State's jury argument, the adverse effect of the error was mitigated by the fact that the State did not need to prove Lopez's motive to secure a conviction. Therefore, the certainty of conviction remains largely the same absent the misconduct. For these reasons, we find that the State's jury argument did not have a substantial and injurious effect or influence in determining the jury's verdict on guilt. We also find, though with greater difficulty, that the jury argument did not have a substantial and injurious effect or influence in determining the jury's verdict on punishment. Though in some cases, the prejudice from improper jury argument is apparent from the jury's imposition of the maximum sentence, (49) this is not one of those cases. Lopez's fifth issue is therefore overruled.IV. Extraneous Acts<br /><br />A. Introduction<br /><br />In his third issue, Lopez asserts the trial court erred in allowing the State to present extraneous misconduct through the testimony of Avalos, Lopez's ex-boyfriend. Without objection from Lopez's counsel, Avalos provided the following testimony: (1) he was sixteen-years-old when he met Lopez; (2) he is ten years younger than Lopez; (3) he was seventeen-years-old when he became sexually involved with Lopez; and (4) the sexual relationship involved Lopez performing oral and anal sex on him. The State attempted to question Avalos about having unprotected sex with Lopez, which prompted Lopez's counsel to object and request a hearing outside the jury's presence. After the jury was excused, the following discussion took place:<br /><br />THE COURT: All right. The jury is outside the courtroom. What is your objection?<br /><br />[LOPEZ'S COUNSEL]: Judge, I would object because I believe that she's going to inquire of this witness, whether my client had unprotected anal and oral sex with him without telling him that he had HIV. That, Your Honor, would be an offense. It's certainly extraneous bad conduct. We're objecting that--on the grounds that it is not relevant, and if it is relevant, that is clearly outweighed by the prejudicial effect. There's been absolutely no evidence that would justify the inclusion at this stage of the trial of extraneous offenses in this case. In fact, the victim himself hasn't even testified, so we're objecting on those grounds.<br /><br />[THE STATE]: The Court has already ruled on this matter. Furthermore, [Lopez's counsel] asked Karen Garcia if the defendant would ever do something like this, and at that time, I approached the Bench and he was allowed to go into it. So, on those grounds also, but this--this clearly goes to intent, motive, modus operandi, and we would argue that it's admissible.<br /><br />THE COURT: I believe it's admissible. I mean, I want to think about the--whether the prejudicial effect outweighs the probative value. I mean, I'm--that's the part that troubles me, frankly.<br /><br />[THE STATE]: I thought there had already been a court ruling.<br /><br />THE COURT: Well, we discussed this, but it's a matter of a limine, you know, and I said we'd wait and see how the evidence came in.<br /><br />[LOPEZ'S COUNSEL]: Judge, the reason I bring up the fact that the victim hasn't testified is because I expect, unless things have changed, that the victim is going to testify that he didn't know whether my client was wearing a condom or not.<br /><br />[THE STATE]: He can testify--I disagree.<br /><br />THE COURT: Well, I mean, if that's it--okay. The objection's overruled. Let's go. Come on, bring the jury back in.<br /><br /><br />Upon the jury returning to the courtroom, Avalos, guided by the State's questioning, testified that (1) he did not wear a condom when Lopez performed oral sex on him; (2) Lopez did not wear a condom when Lopez performed anal sex on him; and (3) Lopez did not inform him that he (Lopez) had HIV before they became sexually involved.<br /><br />On appeal, Lopez argues that, pursuant to Texas Rule of Evidence 404(b), the trial court erred in admitting this testimony (hereinafter collectively referred to as "the extraneous acts"). We find that Lopez's Rule 404(b) objection is applicable to the admission of the extraneous acts, (50) and that the objection properly preserved this issue for our review. We must now assess whether the trial court erred in admitting the extraneous acts.<br /><br />B. Did the Trial Court Err?<br /><br />To be admissible, evidence must be relevant. (51) Evidence of other crimes, wrongs, or bad acts is not admissible to show character conformity but may be admissible for other purposes, such as establishing an elemental fact, establishing an evidentiary fact that leads to an elemental fact, or rebutting a defensive theory. (52) Rule 404(b) provides that evidence of other crimes, wrongs, or bad acts may be admissible for proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (53) Further, although relevant evidence may be admissible under Rule 404(b), evidence may still be inadmissible under Texas Rule of Evidence 403. (54)<br /><br />When performing a Rule 403 balancing test, a trial court must determine if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. (55) In making this determination, the trial court should consider the following: (1) whether the ultimate issue was seriously contested by the opponent of the evidence; (2) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant; (3) the compelling nature, or lack thereof, of the evidence; and (4) the likelihood that the evidence was of such a nature as to impair the efficacy of a limiting instruction. (56) The trial court should also consider how much time the State will need to develop the extraneous offense evidence and the potential for the evidence to affect the jury in some irrational way. (57) We will reverse the trial court's ruling only upon a showing of a clear abuse of discretion. (58) An abuse of discretion is shown if the ruling was outside the zone of reasonable disagreement. (59)<br /><br />In the instant case, the State argued at trial that the extraneous acts were admissible under Rule 404(b) to show Lopez's "intent, motive, [and] modus operandi." (60) With regard to Lopez's intent, the State sought to prove at trial that he knowingly or intentionally penetrated John's anus, and that he knowingly or intentionally caused John's penis to contact his mouth. Lopez did not claim at trial, nor did the evidence suggest, that he accidentally committed these acts; therefore, the inclusion of the extraneous acts was not necessary to shore up the State's case or disprove an otherwise innocent intent. (61) Furthermore, even if Lopez had made his intent an issue at trial (i.e., by admitting to the alleged contact with John while claiming the contact was accidental), we fail to see how the extraneous acts would be relevant in negating such a defense.<br /><br />The State also argued at trial that the extraneous acts were admissible to show Lopez's motive. "[M]otive refers to an emotion that would provoke or lead to the commission of a criminal offense. Evidence to show motive is the circumstantial evidence that would appear to cause or produce the emotion." (62) On appeal, the State does not explain (1) how Lopez and Avalos's consensual sexual activity without a condom produced the emotion that provoked Lopez to sexually assault John, nor (2) how Lopez's failure to tell Avalos that he was HIV positive produced the emotion that provoked Lopez to sexually assault John. We see no relation between the extraneous acts and the State's efforts to establish Lopez's motive for committing the charged offenses. Accordingly, we find that the extraneous acts had no relevance as to motive.<br /><br />Lastly, the State argued at trial that the extraneous acts were admissible to show Lopez's modus operandi. In Owens v. State, the court of criminal appeals discussed admitting extraneous offense evidence to show a defendant's modus operandi, stating:<br /><br />[T]he terms "modus operandi" or "methodology" refer to a defendant's distinctive and idiosyncratic manner of committing criminal acts. Evidence of a defendant's particular modus operandi is a recognized exception to the general rule precluding extraneous offense evidence, if the modus operandi tends to prove a material fact at issue, other than propensity.<br /><br />. . . .<br /><br />. . . When the State seeks to admit extraneous offense evidence under a theory of "system" or modus operandi, there must be a showing that the extraneous offense which was committed by the defendant was 'so nearly identical in method to the charged offense as to earmark them as the handiwork of the accused. The State must show more than the mere repeated commission of crimes of the same type or class: The device used must be so unusual and distinctive as to be like a signature. If there is no sufficiently distinctive characteristic, then the relevancy of the evidence cannot outweigh its prejudicial value. (63)<br /><br /><br />The Ninth Court of Appeals' opinion in Cooper v. State is instructive to our resolution of this matter. (64) Cooper was convicted on two counts of aggravated sexual assault. One of the complainants, a female child, accused Cooper of using threats to make her submit to anal and vaginal intercourse. Cooper lived with the complainant and her mother for four years. At trial, the State had the complainant's mother testify about her relationship with Cooper--namely, her sexual involvement with him. (65) The mother testified, over Cooper's objection, that Cooper had anal sex with her. She further testified that she never wanted to engage in anal sex, but submitted to Cooper because of his forcefulness. Cooper argued on appeal that the trial court erred in admitting the mother's testimony. The court of appeals agreed with Cooper, and rejected the State's claim that the mother's testimony was admissible under Rule 404(b) because it went to Cooper's modus operandi. The court rejected this claim because the mother's testimony did not establish Cooper's "signature," and Cooper's identity was not an issue at trial. (66) The court also added the following: "[W]e are not prepared to concede that evidence of otherwise consensual sexual relations between an adult male and female, albeit involving anal intercourse, is relevant in the prosecution of said adult male for engaging in forcible sex acts perpetrated upon male and female children, albeit also involving anal intercourse." (67)<br /><br />As was the case in Cooper, we cannot conclude that the extraneous acts--Lopez's practice of not using a condom while engaged in consensual sex with Avalos (an adult, long-term companion), and Lopez's failure to inform Avalos of his HIV-positive status--established Lopez's "signature" for sexually assaulting a child. Lopez's failure to wear a condom and disclose his HIV status with a sexual partner does not establish a signature because most sexual assaults committed by a male perpetrator likely occur without the use of a condom and without a discussion of the perpetrator's medical history. (68) To hold that Lopez's sexual conduct with Avalos and his alleged conduct with John are "so nearly identical in method as to constitute a 'system' would run the risk of qualifying almost any two crimes of the same class and against the same type of victim as a 'system.'" (69) Moreover, Lopez's identity was not an issue at trial. There was no indication that John had difficulty identifying Lopez as the individual that sexually assaulted him, thus calling into question the State's necessity of establishing Lopez's modus operandi. Accordingly, we find the extraneous acts were entirely irrelevant to establishing Lopez's modus operandi for sexually assaulting a child.<br /><br />We find there was no admissible purpose for the admission of the extraneous acts under Rule 404(b). The extraneous acts--much like other portions of Avalos's testimony admitted without objection at trial--were presented to show the character of Lopez in order to show that he acted in conformity therewith. Because this is exactly what Rule 404(b) prohibits, we find that the trial court abused its discretion in admitting the extraneous acts. (70)<br /><br />C. Was the Error Rendered Harmless?<br /><br />1. The State's Opening Statement<br /><br />The State contends on appeal that the error was rendered harmless for a number of reasons. Addressing the State's first contention requires us to begin with a review of the State's opening statement at trial, which is where the extraneous acts were first discussed:<br /><br />[THE STATE]: We are going to bring many witnesses to you, and at the close--we are also going to share with you that the defendant knew since 1996 that he was HIV positive. You will hear from an ex-lover of the defendant, Jeremiah Avalos, that the defendant--<br /><br /><br />[LOPEZ'S COUNSEL]: Judge, we--we would object. Counsel is attempting to insert extraneous offenses in this matter. We object under 403. We object under 401. It is not relevant and its prejudicial effect clearly outweighs any relevance and it's certainly not been raised. We object to extraneous--<br /><br /><br />THE COURT: Overruled. Overruled.<br /><br /><br />[THE STATE]: Okay. Jeremiah was younger than the defendant, by ten years, and Jeremiah will share that starting when he was about seventeen or eighteen, the defendant engaged in anal sex with him and that the defendant enjoyed being the one to put his penis in the anus of Jeremiah Avalos and that the defendant repeatedly had anal sex with Jeremiah without using any kind of protection.<br /><br /><br />[LOPEZ'S COUNSEL]: Again, we object, Your Honor. Same reasons, extraneous offenses. It's not been raised, 403, 401, Judge.<br /><br /><br />THE COURT: Overruled.<br /><br /><br />[THE STATE]: That the defendant repeatedly had anal sex with Jeremiah Avalos and did not tell Jeremiah Avalos that he was HIV positive. . . .<br /><br /><br />The Texas Court of Criminal Appeals has held that "[a]n objection that such evidence is . . . an 'extraneous offense' . . . ought ordinarily to be sufficient under the circumstances to apprise the trial court of the nature of the complaint." (71) Accordingly, contrary to the State's argument on appeal, Lopez did apprise the trial court that he was objecting under Rule 404(b) when he twice objected and stated "extraneous offenses." Assuming, arguendo, that Lopez did fail to apprise the trial court of his Rule 404(b) objection, we still would not conclude this rendered harmless Avalos's later discussion of those acts. The doctrine of harmless error (or "waiver") is applicable to a situation where a court overrules "an objection to evidence after the same evidence has been admitted without objection." (72)<br /><br />The effect of the earlier-admitted evidence on appellate review of the ruling is clear: Overruling the objection usually will not be reversible error. "It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged." (73)<br /><br /><br />The State's opening statement was not "other evidence" that the jury could consider in determining Lopez's guilt or innocence; (74) therefore, Avalos's discussion of the extraneous acts, which was evidence the jury could consider, was not rendered harmless by the State's opening statement.<br /><br />2. Karen Garcia's Testimony<br /><br />Karen Garcia, Lopez's friend, was the State's first witness. On direct examination, the State did not question Garcia as to whether she had knowledge about Lopez's condom usage with Avalos. Furthermore, the State did not question Garcia as to whether, to her knowledge, Avalos was aware of Lopez's HIV status from the beginning of their sexual relationship. While under cross-examination by Lopez's counsel, however, Garcia stated the following:<br /><br />Q. [LOPEZ'S COUNSEL]. Okay. Now, Jeremiah--Jeremiah knew that [Lopez] had HIV, didn't he?<br /><br /><br />A. [GARCIA]. Yes.<br /><br /><br />Q. I mean, he knew it pretty much from the start, didn't he?<br /><br /><br />A. Yes.<br /><br /><br />Q. And Jeremiah, even though he knew that [Lopez] had HIV, still slept with him?<br /><br /><br />A. Correct.<br /><br /><br />Q. In fact, repeatedly and over time knowing basically from the start that he had HIV, isn't that true?<br /><br /><br />A. True.<br /><br /><br />Q. In fact, wouldn't Jeremiah even go to the doctor with him?<br /><br /><br />A. I'm not too sure about that, but, you know, I knew he knew that, you know, [Lopez] was sick.<br /><br /><br />The State's brief, in setting forth arguments for why Avalos's testimony was rendered harmless, draws attention to the fact that "Lopez's attorney himself had solicited testimony from Karen Garcia that Avalos knew about Lopez's HIV status from the beginning." The brief then states the following:<br /><br />Accordingly, by failing to object to prior instances where evidence came in without any 404(b) objection, Lopez waived any complaint concerning his own sexual orientation and HIV status, and his sexual relationship with Avalos, including both jury argument and testimony solicited by Lopez's attorney as to whether Avalos knew about Lopez's HIV status before they began that sexual relationship.<br /><br />Lopez thus waived any error when the prosecutor later asked the same general questions of Avalos, and specifically whether Lopez told Avalos about his HIV status before engaging in unprotected sex with him.<br /><br /><br />The State's argument is less than clear. Nevertheless, we perceive the State's argument as raising one of two possible contentions.<br /><br />The first possible contention is that Karen Garcia's testimony is same or similar evidence of the extraneous acts discussed by Avalos, thus rendering Avalos's testimony harmless. (75) We find this contention unpersuasive. Garcia's testimony that Avalos was aware of Lopez's HIV status from the start of their sexual relationship, and Avalos's testimony that he was unaware of Lopez's HIV status at the start of their sexual relationship, is not same or similar evidence. For an evidentiary error to be rendered harmless by same or similar evidence, the latter must complement the former--rather than conflict with it--in order to prove the same fact. (76) The State's second possible contention is that Karen Garcia's testimony provides an independent basis for admitting Avalos's testimony, for even if Avalos's discussion of the extraneous acts was impermissible evidence under Rule 404(b), the evidence was permissible to rebut Garcia's contradictory testimony. We find this contention unpersuasive, as well.<br /><br />If the State merely intended to rebut Garcia's testimony through Avalos's extraneous-acts testimony, the trial court should have sustained Lopez's Rule 401 and Rule 403 objections to Avalos's testimony. As already explained, Avalos's discussion of the extraneous acts was irrelevant to Lopez's intent, modus operandi, motive, or any other admissible purpose articulated under Rule 404(b). The extraneous acts were irrelevant to rebutting a defensive theory that Lopez raised at trial. Moreover, the extraneous acts were irrelevant to rebutting evidence of Lopez's good character. Garcia's testimony that Avalos was aware of Lopez's HIV status was not evidence of Lopez's good character. Though Garcia testified that Avalos knew of Lopez's HIV status at the start of their sexual relationship, she never specified whether Avalos's knowledge stemmed from Lopez, another individual, or random circumstance.<br /><br />The only "relevant" purpose of Avalos's extraneous-acts testimony was to show that Garcia was mistaken in her belief as to when Avalos became aware of Lopez's HIV status. Whether or not Garcia had a mistaken belief about this matter, however, was irrelevant to Lopez's trial; therefore, there was no relevant purpose behind Avalos's discussion of the extraneous acts. If there was any relevance to this discussion, that relevance was substantially outweighed by the danger of unfair prejudice against Lopez.<br /><br />We further find that the State cannot use Garcia's testimony to justify the admissibility of Avalos's testimony because Garcia's testimony was rebuttal evidence. To understand how we arrive at this point, we begin with a discussion of Drew v. State. (77) In Drew, the court of criminal appeals determined that the trial court erred in permitting the State to present extraneous offense evidence over Drew's objection, and held that Drew did not "open the door" to the extraneous offense evidence by later presenting rebuttal evidence. (78) The court of criminal appeals explained:<br /><br />By protesting that [extraneous offense] evidence at the first opportunity, however, appellant indicated an unwillingness to "play ball." Moreover, once he objected at the outset, any evidence of like kind which appellant presented to refute evidence admitted over his objection should not be considered belated agreement to admit specific conduct in aid of jury discretion. An accused cannot in fairness be expected to "forfeit" rebuttal of damaging evidence admitted over his objection in order to preserve error on appeal. Rather, we will presume appellant is "playing the game under protest." (79)<br /><br /><br />In holding that rebuttal evidence does not "open the door" to the evidence it seeks to refute, Drew assessed a situation in which the evidence being rebutted was presented before the rebuttal evidence. Drew's holding, however, can be logically applied to certain situations in which the evidence being rebutted is presented after the rebuttal evidence. We demonstrate this point through the following hypothetical.<br /><br />Imagine that at a trial's guilt phase, the trial court, over the defendant's objection, improperly permits the State to present extraneous offense evidence through its witness, Sam. During the defense case-in-chief, the defendant presents rebuttal evidence to meet, explain, or destroy Sam's testimony. After the defense case-in-chief, the trial court permits the State, over the defendant's objection, to reiterate the same extraneous offense evidence through Bob, a rebuttal witness. If the defendant appealed the trial court's admission of the extraneous offense evidence, the State could not reasonably argue that the defendant's rebuttal evidence "opened the door" to Bob's testimony, which was introduced after the rebuttal evidence. To believe otherwise would unfairly result in defendants being compelled to forfeit rebuttal of damaging evidence admitted over objection in order to preserve error on appeal. (80)<br /><br />The instant case is factually similar to the above hypothetical, with one critical distinction. In the hypothetical, the defendant's rebuttal evidence responds to actual evidence (i.e., Sam's testimony); in the instant case, Lopez's rebuttal evidence (i.e, Garcia's testimony) responds to the State's opening statement, which is not evidence. (81) The question that confronts us is whether this distinction is significant. Does this distinction cause Garcia's testimony to open the door to Avalos's extraneous-acts testimony? After much consideration, we answer this question in the negative.<br /><br />In Powell v. State, the court of criminal appeals determined that the State could introduce extraneous offense evidence in its case-in-chief to rebut a defensive theory that was raised in the defendant's opening statement. (82) The court of criminal appeals later made the same determination in Bass v. State, (83) explaining therein:<br /><br />Although a defensive opening statement is not itself evidence, it does inform the jury of the nature of the defenses relied upon and the facts expected to be proved in their support. When, as here, the defense chooses to make its opening statement immediately after the State's opening statement, the State may reasonably rely on this defensive opening statement as to what evidence the defense intends to present and rebut this anticipated defensive evidence during its case-in-chief as opposed to waiting until rebuttal. (84)<br /><br /><br />If the State can present extraneous offense evidence to rebut anticipated defensive evidence because it "reasonably rel[ied] on [a] defensive opening statement as to what evidence the defense intend[ed] to present," (85) then a defendant should similarly be able to rebut anticipated extraneous offense evidence based on the defendant's reasonable reliance on the State's opening statement as to what evidence the State intends to present. A defendant arguably has greater reason to rely on the State's opening statement. When the State discusses an extraneous offense in its opening statement, the State's failure to present evidence of that offense renders the State's opening statement improper, and risks affording the defendant a basis for retrial. (86) This being the case, it is reasonable for a defendant to presuppose that the State would not risk violating his substantial rights by referencing extraneous offenses that it does not fully intend to present evidence on.<br /><br />Moreover, though the State's opening statement is not evidence, it is disingenuous to believe that matters raised therein are incapable of harming a defendant. Courts have cautioned that a "prosecutor should not use the opening statement as an opportunity to poison the jury's mind against the defendant or to recite items of highly questionable value." (87) The State's references to the extraneous acts in the instant case, as will be discussed later in this opinion, had the effect of portraying Lopez as an individual of generally bad character--specifically, a callous and exploitative person with a reckless disregard for human life. We cannot fault Lopez's counsel for wanting to rebut this portrayal at the earliest opportunity, rather than allow the jurors' minds to retain this portrayal (untarnished by rebuttal) while entertaining John's testimony and assessing John's credibility. The fact of the matter is that Lopez's counsel had no obviously preferable means of responding to the State's opening-statement discussion of the extraneous acts. Even if Lopez's counsel had not presented rebuttal evidence through Garcia, and the State had not presented evidence of the extraneous acts, Lopez's counsel would still confront a complicated decision regarding how best to respond to the State's opening statement. As explained by one federal court of appeals:<br /><br />It is true, as the government points out, that during closing arguments the defense is free to call to the jury's attention the fact that the government has failed to present evidence that it promised, and to that extent its case is suspect, being weaker than the jury might originally have thought based on the prosecutor's opening statement. But this approach places an unfair burden on the defense in cases . . . where . . . defense counsel may wish to avoid reminding the jury of activities for which no evidence was offered at trial. (88)<br /><br /><br />In conclusion, the State's opening statement informed the jury as to how the State would prove Lopez committed the charged offenses, and it made clear the State's intent to rely on the extraneous acts to accomplish this objective. Under Powell and its progeny, we find it difficult to discern why Lopez could not rely on this opening statement as to what evidence the State intended to present, and rebut this anticipated prosecutorial evidence during the State's case-in-chief as opposed to waiting until his case-in-chief. We thus consider Garcia's testimony about Avalos to be proper rebuttal evidence. Accordingly, Garcia's testimony did not open the door to the extraneous acts because the former represented Lopez playing, under protest, a game that the State initiated in its opening statement. (89)<br /><br />3. Avalos's Unobjected-to Testimony<br /><br />The State further contends any error was rendered harmless for the following reason:<br /><br />[L]ong before Avalos took the stand, the jury had already heard testimony, without any 404(b) objection, that Lopez was gay, that he was HIV positive, and that he and Avalos had been in a long-term homosexual relationship. In addition, they heard unobjected-to argument that Lopez did not tell Avalos that he was HIV positive when they were having unprotected anal sex.<br /><br /><br />The State is incorrect in asserting that the jury "heard unobjected-to argument that Lopez did not tell Avalos that he was HIV positive when they were having unprotected anal sex." Lopez's counsel raised a Rule 404(b) objection to such testimony before it was admitted through Avalos. The trial court heard counsel's objection outside the presence of the jury, thus eliminating the necessity of counsel repeating the objection when the court admitted the evidence. (90) The State emphasizes that Avalos testified, without objection, that he had oral and anal sex with Lopez, and that he did "[p]retty much everything in the book" with Lopez. This testimony--along with Avalos's testimony that Lopez is a homosexual who is HIV-positive--is not "same or similar" evidence of the extraneous acts, however, because the former is critically distinguishable in two critical respects: (1) it makes no reference to the sex being unprotected; and (2) it makes no reference to Lopez subjecting Avalos to the risk of acquiring HIV from him without Avalos's knowledge. (91) Accordingly, we find the trial court's error in admitting the extraneous acts was not rendered harmless.<br /><br />D. Assessing the Error's Potential Harm<br /><br />The admission of the extraneous acts constitutes non-constitutional error, (92) which again means that we will disregard the error if it does not affect Lopez's substantial rights. (93) As fully explained in our discussion of Lopez's first issue, substantial rights are not affected by the erroneous admission of evidence if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. (94) The influence and harm that may result from a trial court's admission of a defendant's extraneous offenses or bad acts was fully discussed by the court of criminal appeals in Abdnor v. State:<br /><br />It is now axiomatic that a defendant is to be tried only on the crimes alleged in the indictment and not for being a criminal generally. Thus, evidence of extraneous offenses or bad acts committed by the defendant may not be introduced during the guilt/innocence portion of the trial to show the defendant acted in conformity with his criminal nature. This is because evidence of extraneous offenses is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. . . .<br /><br />. . . .<br /><br />We have consistently acknowledged that the introduction of extraneous offenses to the jury is inherently prejudicial, and hence, harms the defendant, because it requires the defendant to defend against not only the offense charged but also his uncharged actions. The admission of extraneous offenses also prejudices the defendant because of the jury's natural inclination to infer guilt to the charged offense from the extraneous offenses. . . .<br /><br /><br />. . . [T]he unlimited introduction of extraneous offenses similar to the charged offense harms a defendant because the jury will inevitably presume guilt from the extraneous offenses to the charged offense. We have subsequently found in a number of cases that the admission of extraneous offenses similar to the charged offense, and admitted without limiting instructions, harmed the defendant because the jury was allowed to convict on the assumption that the defendant was acting in conformity with a criminal character. (95)<br /><br /><br />Because extraneous offense evidence carries with it the inherent risk that a defendant may be convicted because of his propensity for committing crimes generally--i.e., his bad character--rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual's prior bad acts or extraneous offenses. (96)<br /><br />In the instant case, the jury heard significant discussion of Lopez's extraneous acts from the State, and, as a result, from Lopez. From the beginning of Lopez's trial, the State established its intent to make the extraneous acts an issue by referring to them during opening statement, wherein the jury was informed that Lopez "repeatedly had anal sex with Jeremiah without using any kind of protection," and that Lopez "did not tell Jeremiah Avalos that he was HIV positive." This required Lopez to rebut the extraneous acts during his cross-examination of the State's first witness, Karen Garcia, who testified that Avalos had always been aware of Lopez's HIV status. The State's fifth witness was Avalos, who testified about the extraneous acts over Lopez's objection. Avalos's testimony relating to the extraneous acts consisted of the following:<br /><br />Q [THE STATE]. Okay. And let me ask you, when you began engaging in anal sex with [Lopez], did he like to use a condom?<br /><br />A. There was [sic] no condoms used.<br /><br />Q. Okay. He did not use a condom?<br /><br />A. Huh-uh.<br /><br />Q. Okay. You never used a condom with him?<br /><br />A. I'm pretty--say like maybe once, twice, but never consistently throughout the relationship.<br /><br />Q. Okay. Why didn't he use a condom, did he ever tell you?<br /><br />A. It was never brought up. It was just from the get-go never done, so just never did it.<br /><br />Q. Okay. When he was performing oral sex on you, were you wearing a condom?<br /><br />A. No, ma'am.<br /><br />Q. Did there come a time in your relationship after you were having anal and oral sex with him that he told you or did you ever learn he was HIV positive?<br /><br />A. No, ma'am.<br /><br />Q. Okay. When did you finally learn he was HIV positive?<br /><br />A. The way it came about was we were in my bedroom, me, my mother and my brother, and my brother had blurted out that [Lopez] had AIDS and, I don't know, it came to a shock because he never told me. I found out through my brother because my cousin is his sister's best friend and that's how it came across each other that he had AIDS and it got back to me.<br /><br />Q. Okay. Did you confront the defendant?<br /><br />A. Yes, ma'am. I confronted him about it. He never told me yes or no. It was just understood that he did. Never apologized or nothing like that for it, so. . .<br /><br />Q. Okay. When you learned he was HIV positive, did you assume that you were HIV positive?<br /><br />A. Yeah. I thought my life was ruined after that. I mean, there was no need for me to go get tested or nothing like that 'cause I was with him for so long. I thought, hey, I already been in here for three years already, I know I have it. I mean, there was a lot of unprotected sex between us, so I just thought I had it. And due to my best friend, she told me that just go get tested.<br /><br />. . . .<br /><br />Q. Okay. So did you then continue to be with him--<br /><br />A. Yes, ma'am.<br /><br />Q. --thinking you must be HIV positive, too?<br /><br />A. Yes, ma'am.<br /><br />Q. What were the exact words you used with me about how you felt about yourself?<br /><br />. . . .<br /><br />A. That my life was over. There was nothing else looking forward to, just belong with him, I mean. I don't remember my exact words, but I know it was pretty much to the effect of nothing else left to live for. I mean, it was over.<br /><br />Q. Okay. So you continued to be in a relationship with him?<br /><br />A. Uh-huh, yes, ma'am.<br /><br />Q. Okay. And at some point, did you finally go to be tested for HIV?<br /><br />A. Yes. At the end of our relationship, I did do that and it came out negative. So I knew it was finito with him.<br /><br />Q. Okay. Were you surprised that you were negative?<br /><br />A. To the point of tears.<br /><br />Q. Okay. And how many times would you go to re-test yourself?<br /><br />A. Every three to four months, and then after a year passed, the--one of the workers over there had told me I could come back every six months because the results were coming out pretty much clear.<br /><br />Q. Okay. Did one of the workers kind of tell you to calm down?<br /><br />A. Uh-huh.<br /><br />Q. That you didn't have to go that much to be tested?<br /><br />A. Yes, ma'am.<br /><br /><br />Lopez then sought to rebut the extraneous acts through his cross-examination of Avalos and his own direct examination, wherein Lopez sought to establish that his HIV status was always known to Avalos. Lopez continued to rebut the extraneous acts during closing argument, at which point his counsel told the jury:<br /><br />Jeremiah Avalos. Now, here we have unrequited love, or, perhaps, lust. I don't know. But he's so oblivious to [Lopez]'s illness that he's never noticed the medications in his refrigerator, or is it just that he doesn't use butter? You know, I don't know. But you remember how he said, you know, gosh, you know, occasionally he would use a condom. Now, ladies and gentlemen--well, rephrase that, ladies, if you could not bear children and all of a sudden your husband said he was going to use a condom, wouldn't light bulbs go off? Would you have some questions? Would you wonder why? But, apparently, that escapes Avalos' attention.<br /><br /><br />As I said, this is unrequited love. [Lopez] was rejected by Jeremiah or Jeremiah--[Lopez] rejected Jeremiah and now he's going to pay him back. . . .<br /><br /><br />The State then responded to Lopez's closing by discussing the extraneous acts in its rebuttal closing argument, stating:<br /><br />Jeremiah was a virgin to anal sex, and he was a virgin to gay sex, until the defendant. Jeremiah, told us that the defendant did not tell him, at first, that he was HIV positive and has unprotected sex with Jeremiah without telling Jeremiah that he was HIV positive. As you recall, Jeremiah had to hear, I believe, through a cousin. And when he confronted the defendant, the defendant said, Oh, -- didn't really say much.<br /><br />Jeremiah, at that point, being the naive 17, 18 year old that he was, decided, I must also be HIV positive, because we've had anal sex so many times without a condom. So, at that point, he just didn't get tested, until they broke up, and then he was tested and he was very lucky and was not HIV positive. But this defendant even lied to Jeremiah.<br /><br /><br />We first observe that the extraneous acts clearly prejudiced Lopez by forcing him to defend against the offenses charged and the uncharged actions. Time was spent rebutting the extraneous acts during Garcia's, Avalos's, and Lopez's testimony, as well as during closing argument. Rebutting the extraneous acts to this extent was necessary because the State essentially presented Avalos as Lopez's second victim. The State questioned Avalos about the emotional toll placed upon him as a result of Lopez's failure to disclose his HIV status. Avalos told the jury that he felt his "life was ruined," his "life was over," "[t]here was nothing else to look forward to," and "nothing else to live for." The State's questioning prompted Avalos to testify that he was "[t]o the point of tears" when he learned he did not have HIV, but was plagued with worry during the time he continued to be retested for the virus. During closing argument, the State portrayed Avalos as one of Lopez's victims, describing him as a "naive 17 or 18 year old" who "was a virgin to gay sex, until the defendant."<br /><br />Second, the State's actions created the very real possibility that a juror would lose sight of specific issues he or she was called upon to decide, and would instead convict and punish Lopez for the extraneous acts. (97) Lopez's extraneous acts gave the jury two things to consider: (1) the harm that was (and could have been) inflicted upon Avalos; and (2) the harm that could be inflicted upon others should Lopez continue to have consensual sex without a condom while failing to inform his sexual partners of his HIV status. The State brought the latter consideration to the forefront of the jury's attention at two points in its closing argument. The first point occurred when the State raised the improper jury argument discussed earlier, wherein the State suggested that Lopez had sexually assaulted John because of a failed sexual encounter with someone earlier that day. This argument invited the jury to speculate that Lopez engages in casual sexual encounters, which would in turn invite the jury to speculate as to whether Lopez would silently subject his partners to the risk of contracting HIV. The second point in the closing was more direct; it was the final message the State had for the jury: "Lastly, the very last thing I'd like to leave with you is that your guilty verdict will keep this predator, chicken hawk off our streets and prevent him from further contributing to the increase in the epidemic of AIDS."<br /><br />Third, it is conceivable that the jury improperly relied on the extraneous acts--specifically, Lopez's practice of not using a condom during sexual activity with Avalos--to find beyond a reasonable doubt that Lopez did not use a condom in the course of sexually assaulting John. The State sought to prove to the jury that Lopez failed to wear a condom during the sexual assault in order to establish the aggravated element of the charged offenses. And the State's direct examination of Avalos--composed of five questions relating to Lopez's condom usage with Avalos--clearly demonstrated the State's intent to utilize the extraneous acts to accomplish this objective.<br /><br />Fourth, Lopez's alleged failure to inform Avalos of his HIV status prior to engaging in sexual activity evidenced Lopez's reckless disregard for human life in the course of satisfying his sexual desires--a reflection undiminished by the fact that Avalos did not acquire HIV. (98) Once the extraneous acts were before the jury, the State emphasized Lopez's disregard by having Avalos testify that he never received an apology from Lopez, and by later repeating that testimony during closing argument. Placed in the context of a trial for aggravated sexual assault of a child, such evidence was calculated to weigh heavily on the jurors' minds. (99) Under the facts of this case, the admission of Avalos's testimony regarding the extraneous acts, admissible for no other purpose than character conformity, may have had the practical effect of prejudicing any defense raised by Lopez regarding John's credibility. Such an effect would have been detrimental to Lopez, who sought to discredit John at trial by pointing out factual variances in his outcries, and by suggesting that John was motivated to fabricate the assault to avoid being schooled in the Alternative Education Program.<br /><br />Fifth, the extraneous acts adversely affected Lopez's credibility because the acts reflected Lopez's capacity to lie. The State made sure to remind the jury in its closing that Lopez "even lied to Jeremiah." This point was significant for the State in discrediting Lopez, for if Lopez was capable of lying to his long-term partner on a matter that put his partner's life at jeopardy, the jury could infer that Lopez was more than capable and willing to lie to them about the charges against him. The extraneous acts indicated to the jury that Lopez is not truthful when his sexual activity is at issue.<br /><br />The significance of this final point, however, is arguably mitigated by the fact that the jury had reason to question Lopez's truthfulness even if the extraneous acts were not admitted. Garza, the investigator, testified that he interviewed Lopez in the course of his investigation, from which he obtained a written statement from Lopez stating the following:<br /><br />I have been asked if I know a young man by the name of [John] and I do not know who that person is. I was told that he has made an allegation that in June 2004 I gave him a ride in my white Dodge Intrepid from a bus stop to some friends' house on Franklin Street in Corpus Christi. I was also told that [John] later called my cell phone and asked me to go pick him up. I was told that he stated I took him to an apartment (either 2016 or 2006) at the Sutton Place Apartments where I gave him some liquor. He claims that he passed out and I had oral sex with him and possibly anal sex.<br /><br /><br />I do not recall the name of [John] and I do not remember meeting anyone by that name. I would never pick someone up who I have never met before from a bus stop. I am not in the habit of doing that. I did not have oral sex or anal sex with [John] or anyone else. . . .<br /><br />. . . I date girls and I do not go out with guys. I do not know why this person would say that I did this to him because I did not do this to him. I did stay in apartment #1705 at the Sutton Place Apartments. The apartment was being leased by my friend, Karen Garcia. During the month of June 2004 I would occasionally go and spend the night. She later let me take over the lease on the apartment. I began to live there permanently about mid July 2004. . . .<br /><br /><br />Lopez testified at trial that he lied about his sexual preference in the statement because he did not know Garza and he is a private person. Lopez also testified that, at the time the statement was made, he did not remember hanging out with John, nor fully moving into the Sutton Place Apartments in June 2004 (rather than "mid July"), because more than three months had transpired since those events. In addition to the statement, Lopez's cell phone records revealed that, on the night in question, outgoing calls were made from his phone late into the night. Lopez, however, testified that he went to sleep before those calls were made, and neither he nor John claimed responsibility for the calls.<br /><br />E. Was the Error Harmful?<br /><br />"We are not concerned here with whether there was sufficient evidence on which [Lopez] could have been convicted without the evidence complained of. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." (100) As the United States Supreme Court explained in Kotteakos v. United States:<br /><br />[I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.<br /><br /><br />The Supreme Court has defined "grave doubt" to "mean that, in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." (101) If the reviewing court is unsure whether the error affected the outcome, the court should treat the error as harmful, that is, as having a substantial and injurious effect or influence in determining the jury's verdict. (102)<br /><br />Due to the five aforementioned concerns and the reasoning expressed therein, we have a "grave doubt" that the jury's guilty verdict was free from the substantial influence of the extraneous acts. The evidence of guilt in this case is not overwhelming--there was no physical evidence and Lopez and John were the only witnesses to the alleged assault. The record reveals that while the jury was deliberating Lopez's guilt or innocence, two jury notes were sent to the trial court requesting guidance on the meaning of "reasonable doubt"--possibly reflecting the difficulty some jurors had in finding Lopez guilty. In this case, as in almost any case, "[i]t is difficult to determine what evidence influenced the jury in reaching [its] criminal verdict, without such a judicial incursion into the mental processes of jurors." (103) This reality, coupled with the extraneous acts' great potential to disrupt the juror's orderly evaluation of the evidence, causes us to seriously question whether the jurors were properly able to apply law to facts in order to reach a just verdict. (104)<br /><br />Finally, while in no way attempting to impugn the integrity of the prosecuting attorneys throughout the State of Texas, holding such error harmless under the circumstances in the record before us could be interpreted as a signal to even the most well-intentioned prosecutor that, given the inherent subjectivity of harmless error analysis, any alleged perpetrator of such a repulsively violent crime deserves to be prosecuted as aggressively as the "law allows." We cannot deny nor fault this type of prosecutorial rationalization, but neither can we permit this Court to be an indirect participant in it. (105)<br /><br /><br />Unsure whether the erroneous admission of the extraneous acts affected the jury's verdict, we are obligated to treat the error as harmful. Lopez's third issue is therefore sustained.<br /><br />V. Cumulative Harm<br /><br />The court of criminal appeals has stated that "[a] number of errors may be found harmful in their cumulative effect." (106) In the instant case, we have already ascertained that the error raised in Lopez's third issue, by itself, creates a "grave doubt" as to whether the jury's guilty verdict was free from the substantial influence of that error. Nevertheless, we observe that this doubt becomes more grave when we consider the cumulative harm of the errors discussed in Lopez's first, third, and fifth issue.<br /><br />VI. Conclusion<br /><br />"Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly." (107) With this tenet in mind, we reverse the trial court's judgment and remand the case for a new trial. (108)<br /><br /><br /><br /><br />LINDA REYNA YAÑEZ,<br /><br />Justice<br /><br /><br /><br /><br />Publish. Tex. R. App. P. 47.2(b).<br /><br />Opinion delivered and filed this the<br /><br />26th day of March, 2009.<br /><br />1. Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2008).<br /><br />2. Id. at § 22.021(a)(1)(B)(iii).<br /><br />3. Id. at § 22.021(a)(1)(B)(i).<br /><br />4. Id. at § 22.021(a)(2)(A)(iv).<br /><br />5. See generally Mathonican v. State, 194 S.W.3d 59, 69-71 (Tex. App.-Texarkana 2006, no pet.) (finding defendant's HIV-positive seminal fluid was capable of causing death or serious bodily injury); Degrate v. State, No. 05-04-00218-CR, 2005 Tex. App. LEXIS 547, at *4-8 (Tex. App.-Dallas Jan. 26, 2005, no pet.) (mem. op., not designated for publication) (finding legally and factually sufficient evidence that the mouth of an HIV-positive defendant was a deadly weapon when defendant bit the complainant); Najera v. State, 955 S.W.2d 698, 700-01 (Tex. App.-Austin 1997, no pet.) (finding legally and factually sufficient evidence that defendant's penis and seminal fluids were capable of causing death); Weeks v. State, 834 S.W.2d 559, 561-65 (Tex. App.-Eastland 1992, pet. ref'd) (finding evidence was sufficient to sustain HIV-positive defendant's attempted murder conviction for spitting at complainant).<br /><br />6. John outcried about being anally raped before meeting with Garza, but the outcry did not entail any comment relating to the pain he felt.<br /><br />7. See Yount v. State, 872 S.W.2d 706, 712 (Tex. Crim. App. 1993) (holding that Texas Rule of Evidence 702 "does not permit an expert to give an opinion that the complainant or class of persons to which the complainant belongs is truthful").<br /><br />8. Emphasis added.<br /><br />9. See Leday v. State, 983 S.W.2d 713, 717-18 (Tex. Crim. App. 1998) (explaining that "when a court has overruled an objection to evidence, the ruling usually will not be reversible error when the same evidence is subsequently admitted without objection").<br /><br />10. Emphasis added.<br /><br />11. See Duckett v. State, 797 S.W.2d 906, 920 (Tex. Crim. App. 1990).<br /><br />12. Yount, 872 S.W.2d at 711.<br /><br />13. Id. at 712. We note that the State makes no attempt to contest this finding.<br /><br />14. See generally Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978) (noting that "[i]t is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged").<br /><br />15. Long v. State, No. 12-07-00256-CR, 2008 Tex. App. LEXIS 8885, at *12-31 (Tex. App.-Tyler Nov. 26, 2008, no pet.) (mem. op., not designated for publication).<br /><br />16. Id. at *26-31.<br /><br />17. Carter v. State, No. 05-06-01209-CR, 2008 Tex. App. LEXIS 74, at *2-5 (Tex. App.-Dallas Jan. 8, 2008, pet. ref'd) (mem. op., not designated for publication) (citing Briones v. State, 12 S.W.3d 126, 130 (Tex. App.-Fort Worth 1999, no pet.); Marles v. State, 919 S.W.2d 669, 672 (Tex. App.-San Antonio 1996, pet. ref'd)). We note that we have reviewed Briones and Marles, and have found that they are not directly on point to the matter at hand.<br /><br />18. 909 S.W.2d 198, 204-06 (Tex. App.-Houston [14th Dist.] 1995, no pet.).<br /><br />19. Id. at 206 (emphasis added).<br /><br />20. Armstrong v. State, 718 S.W.2d 686, 702 (Tex. Crim. App. 1986).<br /><br />21. Id. at 696.<br /><br />22. Id. at 696-97.<br /><br />23. Id. at 702.<br /><br />24. Id. at 701.<br /><br />25. Id. at 702 (emphasis added).<br /><br />26. See Schutz v. State, 63 S.W.3d 442, 444-46 (Tex. Crim. App. 2001) (discussing the application of non-constitutional error harm analysis to trial error involving expert witness who commented on the truthfulness of complainant's allegations).<br /><br />27. Tex. R. App. P. 44.2(b).<br /><br />28. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).<br /><br />29. Haley v. State, 173 S.W.3d 510, 518-19 (Tex. Crim. App. 2005).<br /><br />30. 872 S.W.2d at 710 (quoting State v. Moran, 728 P.2d 248, 255 (Ariz. 1986)).<br /><br />31. No. AP-75,294, 2008 Tex. Crim. App. LEXIS 852, at *13-14 (Tex. Crim. App. Sept. 24, 2008) (citations and internal quotations omitted).<br /><br />32. Nichols v. State, 754 S.W.2d 185, 199 (Tex. Crim. App. 1988).<br /><br />33. See Hougham v. State, 659 S.W.2d 410, 414 (Tex. Crim. App. 1983).<br /><br />34. Miller v. State, 566 S.W.2d 614, 619, 621 (Tex. Crim. App. 1978).<br /><br />35. See generally Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991) (discussing rules governing the preservation of error relating to the admission of evidence in criminal cases).<br /><br />36. The direction of the jury argument in this case is clearer than that discussed in other cases, wherein the appellate court determined that defense counsel's objection was premature. See, e.g., Felder v. State, 848 S.W.2d 85, 95-96 (Tex. Crim. App. 1992); Denning v. State, No. 05-96-00935-CR, 1998 Tex. App. LEXIS 684, at *8-11 (Tex. App.-Dallas Feb. 4, 1998, no pet.) (not designated for publication); Thomas v. State, 750 S.W.2d 234, 234-35 (Tex. App.-Dallas 1986, no pet.).<br /><br />37. State's Brief at 37.<br /><br />38. Griffin v. State, 554 S.W.2d 688, 690 (Tex. Crim. App. 1977) (emphasis added).<br /><br />39. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (emphasis added).<br /><br />40. Id.<br /><br />41. 848 S.W.2d at 87.<br /><br />42. Id. at 95.<br /><br />43. Id.<br /><br />44. Id. at 96.<br /><br />45. See Brown, 270 S.W.3d at 19.<br /><br />46. Tex. R. App. P. 44.2(b).<br /><br />47. Brown, 270 S.W.3d at 19-20.<br /><br />48. Id. at 20.<br /><br />49. See, e.g., Moore v. State, 530 S.W.2d 536, 537 (Tex. Crim. App. 1975) (finding that the harm stemming from the State's improper jury argument--which associated defendant with uncharged criminal conduct--was apparent from the jury's imposition of the maximum sentence for the charged offenses).<br /><br />50. See Plante v. State, 692 S.W.2d 487, 490 n.3 (Tex. Crim. App. 1985) (stating that "[t]he analysis of the admissibility of extraneous conduct is the same whenever the extraneous conduct reflects adversely on the character of the defendant, regardless of whether that conduct might give rise to criminal liability"); Bishop v. State, 837 S.W.2d 431, 435 (Tex. App.-Beaumont 1992) (rejecting State's claim that defendant's Rule 404(b) objection was inapplicable to the complained-of evidence--namely, testimony from defendant's wife, who was not the complainant, discussing details of consensual sexual acts between them), aff'd, 896 S.W.2d 342 (Tex. Crim. App. 1993); see also Atkins v. State, No. 05-07-00586, 2008 Tex. App. LEXIS 5407, *12-17 (Tex. App.-Dallas 2008 July 23, 2008, pet. ref'd) (not designated for publication) (assessing, under Rule 404(b), trial court's admission of videotapes showing HIV-positive defendant having unprotected sex with consensual adults).<br /><br />51. Tex. R. Evid. 402.<br /><br />52. Id. 404(b); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (opinion on rehearing).<br /><br />53. Tex. R. Evid. 404(b).<br /><br />54. Id. 403.<br /><br />55. Montgomery, 810 S.W.2d at 389.<br /><br />56. Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 392-93.<br /><br />57. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999).<br /><br />58. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000); Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 390.<br /><br />59. Montgomery, 810 S.W.2d at 391.<br /><br />60. The State makes no attempt on appeal to defend the admission of the extraneous acts on these grounds, or any other grounds.<br /><br />61. See Clark v. State, 726 S.W.2d 120, 124 (Tex. Crim. App. 1987).<br /><br />62. Rodriguez v. State, 486 S.W.2d 355, 358 (Tex. Crim. App. 1972).<br /><br />63. 827 S.W.2d 911, 914 (Tex. Crim. App. 1992) (citations and internal quotations and brackets omitted).<br /><br />64. 901 S.W.2d 757, 760-63 (Tex. App.-Beaumont 1995, pet. dism'd).<br /><br />65. Id. at 760.<br /><br />66. Id. at 761.<br /><br />67. Id. at 761-62.<br /><br />68. See id. at 915-16 ("We recognize that there will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous offense admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.")<br /><br />69. Id. at 915.<br /><br />70. See generally Montgomery, 810 S.W.2d at 391 ("Where the appellate court can say with confidence that by no reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the existence of a fact of consequence more or less probable than it would otherwise be, then it can be said the trial court abused its discretion to admit that evidence. Moreover, when it is clear to the appellate court that what was perceived by the trial court as common experience is really no more than the operation of a common prejudice, not borne out of reason, the trial court has abused its discretion.").<br /><br />71. Id. at 387.<br /><br />72. Leday, 983 S.W.2d at 717.<br /><br />73. Id. (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App. 1978)).<br /><br />74. See Fuller v. State, 73 S.W.3d 250, 264 (Tex. Crim. App. 2002) (stating that opening and closing arguments are not evidence).<br /><br />75. See generally Leday, 983 S.W.2d at 717-18 (explaining that "when a court has overruled an objection to evidence, the ruling usually will not be reversible error when the same evidence is subsequently admitted without objection").<br /><br />76. See Nicholas v. State, 502 S.W.2d 169, 174 (Tex. Crim. App. 1973).<br /><br />77. 777 S.W.2d 74 (Tex. Crim. App. 1989).<br /><br />78. Id. at 76.<br /><br />79. Id.<br /><br />80. See id.<br /><br />81. See Fuller, 73 S.W.3d at 264.<br /><br />82. 63 S.W.3d 435, 439 (Tex. Crim. App. 2001).<br /><br />83. 270 S.W.3d 557, 563 (Tex. Crim. App. 2008).<br /><br />84. Id. at 563 n.7 (citations and internal quotations omitted).<br /><br />85. Id.<br /><br />86. See United States v. Thomas, 114 F.3d 228, 248 (D.C. Circ. 1997) ("[W]here the prosecutor informs the jury that the government will produce certain evidence to show a defendant's guilt and then, without good cause, fails to do so, the prosecutor fails to give a proper opening statement to the jury. Otherwise, the risk to the defendant is that the jury's mindset will be tainted, resulting in an unfair trial. The risk to the government is it may have to retry the case.").<br /><br />87. United States v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988) (emphasis added; citations and internal quotations omitted) (citing United States v. DeRosa, 548 F.2d 464, 470 (3d Cir. 1977)).<br /><br />88. Thomas, 114 F.3d at 248.<br /><br />89. See Drew, 777 S.W.2d at 76. If we have misapplied Powell's holding in the instant case, we wonder what would result if Lopez's counsel had not proffered rebuttal testimony from Garcia, but had simply rebutted the extraneous acts during Lopez's opening statement. If this had occurred, would Powell operate to defend the State's admission of the extraneous acts? Furthermore, we observe that if Garcia's testimony did open the door to Avalos's testimony, the door would only be open to Avalos testifying about whether he was aware of Lopez's HIV status at the start of their sexual relationship. The door would not be open to testimony on Lopez's and Avalos's condom usage together, for Garcia never testified on this matter.<br /><br />90. Tex. R. Evid. 103(a)(1) ("When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.").<br /><br />91. See generally Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App. 1981) (reasoning inadmissible evidence was rendered harmless because same or similar evidence was introduced elsewhere without objection).<br /><br />92. See Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999) (applying non-constitutional harm analysis to defendant's claim that trial court erred in admitting extraneous offense evidence).<br /><br />93. Tex. R. App. P. 44.2(b).<br /><br />94. Motilla, 78 S.W.3d at 355.<br /><br />95. 871 S.W.2d 726, 738-39 (Tex. Crim. App. 1994) (footnotes and internal quotations omitted).<br /><br />96. Owens, 827 S.W.2d at 914.<br /><br />97. See Montgomery, 810 S.W.2d at 397.<br /><br />98. See also Atkins, 2008 Tex. App. LEXIS 5407, at *22.<br /><br />99. See Blakeney v. State, 911 S.W.2d 508, 517 (Tex. App.-Austin 1995, no pet.).<br /><br />100. Fahy v. Connecticut, 375 U.S. 85, 88 (1963).<br /><br />101. O'Neal v. McAninch, 513 U.S. 432, 434 (1995).<br /><br />102. Id.<br /><br />103. Alvarado v. State, 775 S.W.2d 851, 857 (Tex. App.-San Antonio 1989, pet. ref'd).<br /><br />104. See generally Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989) ("[T]he reviewing court should focus not on the weight of the other evidence of guilt, but rather on whether the error at issue might possibly have prejudiced the jurors' decision-making; it should ask not whether the jury reached the correct result, but rather whether the jurors were able properly to apply law to facts in order to reach a verdict.").<br /><br />105. Bishop, 837 S.W.2d at 436-37 (citation omitted).<br /><br />106. Feldman v. State, 71 S.W.3d 738, 757 (Tex. Crim. App. 2002).<br /><br />107. Brady v. Maryland, 373 U.S. 83, 87 (1963).<br /><br />108. Our disposition obviates the necessity for discussion of Lopez's second and fourth issue. These issues, which concern the denial of a motion for new trial and an error at the punishment phase of Lopez's trial, would neither add to our cumulative harm analysis, nor afford Lopez any greater relief than already afforded herein.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-4158590279418605272?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-46374328160081277892008-03-16T01:55:00.000-07:002008-03-16T02:00:10.228-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /><br /> Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-07-165-CV<br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br />IN RE: JUAN ANGEL GUERRA, DISTRICT AND COUNTY<br /><br />ATTORNEY FOR WILLACY COUNTY, STATE OF TEXAS<br /><br />On Petition for Writ of Mandamus<br /><br /><br /><br />O P I N I O N<br /><br /><br />Before Justices Yañez, Benavides, and Vela<br /><br />Opinion by Justice Yañez<br /><br />This is an original application for writ of mandamus by which the District Attorney of Willacy County, as relator, seeks to have an order entered by respondent trial judge set aside. Relator, Juan Angel Guerra, alleges respondent, Judge Migdalia Lopez of the 197th District Court of Cameron County, exceeded her authority as a magistrate by entering an order appointing Gustavo Garza as attorney pro tem. The parties have filed motions for contempt and sanctions. We conditionally grant the writ and deny the motions for contempt and sanctions.<br /><br />I. Background<br /><br />On January 11, 2007, the 197th Judicial District Grand Jury for Willacy County, July Term, asked to meet with respondent, Judge Lopez. (1) In that private meeting, the grand jury expressed concerns that relator had abused his office in several respects and requested that an attorney pro tem be appointed to assist in the grand jury's investigation of those concerns. In response to that request, respondent issued an order on January 17, appointing Gustavo Garza as attorney pro tem. Respondent had previously appointed Garza as attorney pro tem on August 2, 2006, after respondent approved relator's request to be recused in the investigation of State of Texas v. Eliseo Barnhart and State of Texas v. Andrea Espinosa, two cases pending in the Willacy County District Attorney's Office. The January 17 order, which was drafted by Garza after reviewing the reporter's record of the meeting between the grand jury and respondent, provides as follows:<br /><br />On January 11, 2007, in Willacy County, Texas, the Grand Jury for the 197th District Court, whose term was extended met in open court with District Judge Migdalia Lopez. On the record the Willacy County Grand Jury addressed various concerns regarding the District Attorney, Juan Angel Guerra and his conduct as District Attorney.<br /><br /><br />I.<br /><br />The Grand Jury expressed concern that the District Attorney, Juan A. Guerra was abusing his office and abusing his power.<br /><br />II.<br /><br />The Grand Jury was concerned with the request by the District Attorney to investigate and indict several Willacy County elected officials.<br /><br />III.<br /><br />The District Attorney requested the Grand Jury to subpoena the District Judge.<br /><br />IV.<br /><br />District Attorney, Juan A. Guerra requested indictments from this Grand Jury without presenting any evidence.<br /><br />V.<br /><br />The District Attorney ordered the Grand Jury to create a five member committee and the District Attorney named two of the committee members. This Grand Jury committee was to investigate and recommend indictment for neglect of office against the District Clerk, County Clerk, County Sheriff and other bail bond board members. This matter was a civil matter.<br /><br />VI.<br /><br />The District Attorney demanded $10,000.00 from a bail bond company. The Grand Jury suspected that a person was indicted for a sex offense in retaliation for nonpayment of the $10,000.00 demanded.<br /><br />VII.<br /><br />The District Attorney requested the Grand Jury to 'true bill' a case that the Grand Jury was in favor of a 'no bill' by stating that the suspect was going to be arrested anyway.<br /><br />VIII.<br /><br />The Grand Jury expressed concern that the District Attorney, Juan Angel Guerra uses the grand jury process to intimidate individuals or get even.<br /><br />IX.<br /><br />The Grand Jury was aware of voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004.<br /><br /><br />Because of these concerns, the Grand Jury requested the 197th District Court meet with the Grand Jury and requested that a special prosecutor be appointed to assist and guide the Grand Jury in investigating the aforementioned areas of concern and any other wrong doing involving the Willacy County District Attorney, Juan Angel Guerra.<br /><br /><br />Order<br /><br /><br />Pursuant to the request by the Willacy County Grand Jury, on this the 11th day of January, 2007, IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor to investigate and prosecute these matters referenced above and any other criminal activity connected or arising out of these allegations; the Attorney Pro Tem will be able to obtain assistance of co-counsel. Considering the fact that the Court has appointed Gustavo Ch. Garza as attorney pro tem on August 2, 2006, this Court by this Order is extending the assignment of August 2, 2006, and the Oath of Office filed with the County Clerk shall continue in full force and effect until the completion of these matters.<br /><br /><br />On February 10, Daniel Cavazos, Jr., a special investigator with the Raymondville Police Department, alleged in an affidavit that he had probable cause to believe that relator had committed certain criminal acts. In his affidavit, Cavazos requested a search warrant to investigate those acts. Garza then presented the affidavit to Judge Janet L. Leal of the 103rd District Court of Cameron County, whereupon Judge Leal issued the warrant, authorizing the search and seizure of various items within the Willacy County District Attorney's Office. (2)<br /><br />On February 11, Cavazos drafted an "affidavit for warrant of arrest" under Garza's supervision, which led to the issuance of three arrest warrants against relator. The warrants accused relator of two counts of theft by public servant and one count of attempted theft by public servant. (3) Later that day, police officers with the Raymondville Police Department, acting under Garza's direction, executed a search of the district attorney's office and seized a number of items. Relator was also arrested in the process for interfering with the search. On February 23, the complaints against relator--three felony counts of theft by public servant and the later added charge of interfering with public duties--were dismissed by Raymondville Municipal Judge Hector Huerta.<br /><br />On March 14, relator filed with this Court a "Petition for Writ of Injunction (Temporary Restraining Order)" (4) and "Motion for Stay of Execution of Order" of the 197th District Court. This Court granted relator's stay motion on March 15, (5) ordering the trial court's order of January 17 stayed and setting the matter for oral argument on April 4.<br /><br />On March 21, the aforementioned grand jury met and issued a subpoena directed to Garza; the subpoena requested the draft indictments against relator that Garza had previously prepared. Garza provided the grand jury with those indictments and the grand jury issued the indictments that same day. As a result, relator was once again arrested. (6)<br /><br />On March 22, relator filed a motion for contempt, contending that respondent and Garza had violated this Court's stay order. Respondent and Garza individually filed a motion to dismiss relator's motion for contempt, and subject thereto, a response and counter-motion for sanctions. Accordingly, this Court issued an order setting the motion for an evidentiary hearing. Respondent and Garza were ordered to appear before this Court on April 4 to respond to relator's motion and show cause why they should not be held in contempt of court and punished for their alleged failure to comply with this Court's March 15 order. (7)<br /><br />On March 31, while a decision on relator's petition was pending before this Court, relator's motion to recuse respondent in the pending criminal matters against relator was granted by Judge J. Manuel Bañales, the presiding judge of the Fifth Administrative Judicial Region. In connection with that recusal, Judge Bañales appointed himself to preside over this matter. (8) Two days prior to this, relator filed an amended petition asking that this Court (1) command respondent (who, pursuant to Judge Bañales's order is no longer the presiding judge) to vacate her January 17 order, and (2) remove Garza as attorney pro tem.<br /><br />II. The Issues<br /><br />In his petition, relator asserts the following six issues: (9) (1) this Court has jurisdiction to grant relator's writ of mandamus; (2) the trial court abused its discretion by not initially seeking to have relator temporarily removed from office through the procedures prescribed in chapter 87 of the Texas Local Government Code; (3) the trial court abused its discretion by appointing an attorney pro tem without relator's consent; (4) the trial court abused its discretion by failing to provide relator with notice and a hearing prior to the appointment; (5) the trial court abused its discretion by taking an act that caused the district attorney's office to cease all operations; and (6) the trial court abused its discretion by appointing an individual who was not a "competent attorney" because of, inter alia, bias and conflicts of interest.<br /><br />In response, respondent contends that (1) relator has adequate remedies at law, (2) she acted within her legal capacity in appointing an attorney pro tem, and (3) she has taken no action which has caused the district attorney's office to cease all operations.<br /><br />III. Mootness and Abatement<br /><br />Before discussing the merits of relator's issues on appeal, we must comment on whether this case has become moot or should be abated.<br /><br />A case is determined to be "moot" if the issues presented in the case are no longer "live" or if the parties lack a legally cognizable interest in the outcome. (10) An entire appeal does not become moot, however, simply because one issue in the case becomes moot. (11) If a case becomes moot on appeal, the appellate court must set aside all previous orders and judgments; both the appeal and the underlying cause must be dismissed. (12)<br /><br />The January 17 order appointed Garza to "investigate" matters concerning relator, which gave way to Garza's involvement with the July Term grand jury. While relator's appeal was pending, the grand jury's term expired; as a result, this portion of the order has been rendered moot. The order, however, also appointed Garza to "prosecute" certain matters--matters for which relator has been indicted. This issue is still alive. Accordingly, relator's original proceeding is not moot.<br /><br />As to the matter of abatement, this Court has considered whether, in light of respondent's recusal and the subsequent appointment of Judge Bañales, this proceeding should be abated pursuant to rule of appellate procedure 7.2(b). (13) Rule 7.2(b) states:<br /><br />If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party's decision. In all other cases, the suit will not abate, and the successor will be bound by the appellate court's judgment or order as if the successor were the original party. (14)<br /><br /><br />A "successor" in the context of rule 7.2, however, is an individual who succeeds a public officer who has ceased to hold office. (15) In the instant case, respondent has not ceased to hold office; she has simply been recused from this proceeding. Additionally, we have found no case law applying rule 7.2(b) in response to a recusal that occurred pending an original proceeding or appeal. Because we are not persuaded that the rule is applicable to this proceeding, we decline to abate.<br /><br />IV. Issue One: Jurisdiction<br /><br />Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy. (16) If the trial court's order is one within its discretionary powers, the relator must show that it is a "clear abuse of discretion." (17) A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error. (18) With respect to resolution of factual issues or matters committed to the trial court's discretion, for example, the reviewing court may not substitute its judgment for that of the trial court. (19) The relator must establish that the trial court could reasonably have reached only one decision. (20) Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. (21)<br /><br />On the other hand, review of a trial court's determination of the legal principles controlling its ruling is much less deferential. (22) A trial court has no "discretion" in determining what the law is or applying the law to the facts. (23) Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. (24) Even when a trial court is confronted with an issue of first impression in Texas, the court still has no "discretion" in determining what the law is or applying the law to the facts. (25) "Consequently, the trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion." (26)<br /><br />A writ will not issue to correct a trial court's abuse of discretion if relator fails to demonstrate that he has no adequate remedy by appeal. (27) Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. (28) The writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. (29) "The requirement that persons seeking mandamus relief establish the lack of an adequate appellate remedy is a 'fundamental tenet' of mandamus practice." (30) An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. (31)<br /><br />In her response to relator's petition, respondent contends that relator has adequate remedies "afforded to him through the criminal justice system" for the purpose of responding "to the appointment and any other issues that relate to that appointment." Respondent explains that "[s]ince the filing of these original proceedings, Relator has been indicted by a Willacy County Grand Jury. Therefore, Relator can avail himself of the criminal justice system as any accused can and address his concerns in that forum." We agree with respondent's contention to a limited extent.<br /><br />What makes this case particularly tricky is that relator comes before us wearing two different hats: the hat of a district attorney and the hat of a criminal defendant. Each hat affords relator the ability to air certain grievances--grievances that, at times, can only be properly raised under the auspices of one of the hats. The challenge before this Court is to identify which hat relator is wearing when he raises a specific argument. If we come across an argument that can only be raised under the hat of a criminal defendant, then it is incumbent upon this Court to dismiss that argument because all appropriate remedies can be obtained through the criminal justice system at this time.<br /><br />It is equally incumbent upon this Court, however, to address and provide appropriate relief when relator raises grievances while wearing the hat of a district attorney. At the time relator filed his original petition with this Court, there were no outstanding indictments against him. Relator was solely before us in his capacity as District Attorney of Willacy County--an elected official whose office is "constitutionally created and therefore constitutionally protected." (32) Relator has raised some complaints on appeal that are not characteristic of the typical criminal defendant; rather, these complaints are those of an elected official who contends that his statutorily provided powers have been unlawfully usurped by respondent's appointment of an attorney pro tem. (33)<br /><br />Guided by this framework, we find that relator does not have an adequate remedy by appeal. (34) Accordingly, we must now assess relator's remaining issues to determine whether respondent's January 17 order constitutes a clear abuse of discretion, thus entitling relator to mandamus relief.<br /><br />V. Issue Two: Chapter 87 of the Texas Local Government Code<br /><br />1. Removal Proceedings under Chapter 87<br /><br />According to the Texas Constitution, "The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution." (35) County officers are subject to this constitutional provision. (36) Accordingly, the Legislature has enacted the rules governing the trial and removal of a district attorney. (37) These rules are promulgated in chapter 87 of the Texas Local Government Code.<br /><br />Under chapter 87, a district judge may remove a county officer (e.g., a district attorney) from office for incompetency, official misconduct, or intoxication. (38) A removal proceeding begins by filing a written petition in a district court of (1) the county in which the officer resides, or (2) the county where the alleged cause of removal occurred, if that county is in the officer's judicial district. (39) This petition may be filed by any resident of this state who has lived for at least six months in the county in which the petition is to be filed and who is not currently under indictment in the county. (40) The petition must (1) be addressed to the district judge of the court in which it is filed, (2) set forth the grounds alleged for the removal of the officer in plain and intelligible language, and (3) cite the time and place of the occurrence of each act alleged as a ground for removal with as much certainty as the nature of the case permits. (41)<br /><br />After a petition for removal is filed, the person filing the petition must apply to the district judge in writing for an order requiring that the officer be served with citation and the petition. (42) If the judge refuses to issue the order for citation, the petition will be dismissed, and no appeal or writ of error can be taken from the judge's decision. (43) If the judge grants the order for citation, the clerk will then issue the citation with a certified copy of the petition. (44) The citation will order the officer to appear and answer the petition. (45) After the issuance of the order requiring citation of the officer, the district judge may temporarily suspend the officer and may appoint another person to perform his duties. (46)<br /><br />An officer may be removed only following a trial by jury. (47) In a proceeding to remove the district attorney from office, the county attorney from an adjoining county, as selected by the commissioners court of the county in which the proceeding is pending, shall represent the State. (48)<br /><br />2. Relator's Claim<br /><br />Relator asserts that when the grand jury initially notified respondent of its desire to criminally investigate relator, respondent had the option to direct the grand jurors to file a petition in a manner prescribed by chapter 87, instead of immediately appointing an attorney pro tem. If a grand juror had filed the appropriate petition, respondent could have granted the order for citation, thus allowing respondent to temporarily suspend relator and appoint an attorney pro tem in his place for the purpose of assuming all of relator's official duties. Relator contends that had respondent acted in this fashion, the Willacy County District Attorney's Office would not currently be enmeshed in the ongoing power struggle between relator and Garza. Furthermore, relator argues that respondent clearly abused her discretion in appointing an attorney pro tem without first suspending or removing relator from office under chapter 87, because the law allegedly requires that relator be removed or suspended from office prior to being indicted.<br /><br />3. Discussion<br /><br />We begin by recognizing that nothing on the face of the January 17 order indicates that respondent is attempting to formally remove relator from office. Though the order may pave the way for relator's future removal, (49) the order itself simply appoints Garza as attorney pro tem for the purpose of investigating and prosecuting relator for alleged criminal activity. (50)<br /><br />With regard to relator's claim that he must be removed from office prior to indictment, we find that chapter 87 clearly shows otherwise. Section 87.031 of the local government code states: "The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as an immediate removal from office of that officer." (51) This section reveals that conviction can precede, or occur simultaneously with, (52) removal. It thus stands to reason that an indictment, which is a preliminary necessity for pursuing a conviction, can and logically, would also precede removal. Furthermore, the Texas Supreme Court has held that a county "officer may be prosecuted criminally . . . either before or after the removal proceedings." (53)<br /><br />The code of criminal procedure clearly reflects the idea that a grand jury needs, and under the law, has the right to rely on, an "attorney representing the State" (54) (e.g., a district attorney) who will assist the grand jury in fulfilling its duties. (55) A grand jury that must seek the advice and assistance of a district attorney who is the subject of the jury's investigation is a recipe for disaster, because the rules place the district attorney in the best position for obstructing the investigation. (56) The code of criminal procedure "clearly envisions that both [the district attorney and grand jury] will work together to resolve particular matters at issue," (57) and this vision can only be safeguarded, in the sort of situation discussed herein, through the appointment of an attorney pro tem. We believe the law affords a grand jury the automatic right to have a district attorney it can work with appropriately, but this right ceases to become automatic if grand jurors are required to file a petition under chapter 87 for the purpose of acquiring an attorney pro tem's assistance.<br /><br />If a grand juror were to file a petition, the district attorney would not automatically be placed on temporary suspension with an attorney pro tem appointed in his place. The grand juror's petition would first have to be approved by a district judge, and if the judge refuses to issue citation pursuant to the petition, the grand juror would have no remedy by appeal. (58) This would seemingly run afoul of a great deal of case law, because "Texas courts have long described the grand jury as a separate tribunal, independent of the control of judges and prosecutors." (59)<br /><br />Requiring a grand juror to file a petition would also place an evidentiary burden upon a grand jury--the likes of which have never been recognized in this state. If a grand juror is required to file a petition under chapter 87, the juror would have to "set forth the grounds alleged for the removal of the officer in plain and intelligible language," as well as "cite the time and place of the occurrence of each act alleged as a ground for removal." (60) Placing this evidentiary burden on a grand jury that simply wishes to acquire competent legal assistance is utterly nonsensical, especially because no such burden is ever placed on a grand jury when it decides to initiate an inquiry. (61)<br /><br />Accordingly, we find that respondent did not commit a clear abuse of discretion by failing to temporarily suspend relator under chapter 87 prior to appointing an attorney pro tem.<br /><br />VI. Issue Three: Appointment of Attorney Pro Tem Without Relator's Consent<br /><br />1. Relator's Grand Jury Concerns<br /><br />In his petition, relator initiates discussion of this issue by asserting that respondent committed acts that violate various articles under chapter 20 of the code of criminal procedure. These acts include (1) being present in the grand jury room while the grand jury is conducting proceedings, (62) (2) addressing the grand jury about a matter before the grand jury, (63) (3) communicating with the grand jury in a manner that is not statutorily prescribed, (64) and (4) failing to preserve the secrecy of the grand jury proceedings. (65) Relator also asserts that respondent erred by allowing the grand jury to initiate a criminal investigation against him during the extended portion of its term. (66)<br /><br />We believe that relator has the capacity to assert these grievances under both hats, because this alleged judicial behavior--even when taken outside the context of this case--should give both criminal defendants and district attorneys everywhere cause for concern. Nevertheless, we also believe that these grievances, even if supported by fact and law, do not relate to the single question relator has presented for our consideration: Did respondent commit a clear abuse of discretion by issuing the January 17 order? As a result, no matter what hat relator wears, his grand jury concerns are not properly before us, and any relief sought on this basis is denied.<br /><br />In denying these claims, however, we note that we have not left relator without recourse. As a criminal defendant, relator may seek relief through the criminal justice system, where he could file motions to quash and set aside his indictments. As a district attorney, relator may seek to remedy his grievances by directing them to either the Texas State Commission on Judicial Conduct or the Texas Commission for Lawyer Discipline.<br /><br />2. Distinction Between Attorney Pro Tem and Special Prosecutor<br /><br />In returning our focus to the January 17 order, we take time to note the order's language: "IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor . . . ." Though the order treats the terms "attorney pro tem" and "special prosecutor" as if they were interchangeable, the terms are far from synonymous. A "district attorney pro tem" is appointed by the district court, and after taking the oath of office, assumes the duties of the elected district attorney and, in effect, replaces the latter in performing germane functions of office for purposes contemplated by the appointment. (67) On the other hand, a "special prosecutor" is permitted by the elected district attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office. (68) Though respondent's order used the terms interchangeably, it is clear that she sought to appoint an attorney pro tem under article 2.07, and the parties do not contend otherwise. (69)<br /><br />3. Relator's Claim<br /><br />Relator correctly asserts that a judge may only appoint an attorney pro tem when one of four circumstances exist: (1) there is no attorney for the State; (2) the district attorney is absent from the county or district; (3) the district attorney is unable to perform the duties of his office; or (4) the district attorney is disqualified to act in any case or proceeding. (70) Though the January 17 order does not tell us which circumstance the judge relied on, the factual nature of this case and the arguments of the parties direct our attention to the issue of disqualification from a case or proceeding.<br /><br />Relator contends that under article 2.07, a district attorney can only be disqualified when the attorney requests to be disqualified and a court approves that request. Relator seemingly relies on subsection (b-1) of article 2.07, which states, "An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified." (71) If relator's interpretation of subsection (b-1) is correct, the initial language of the subsection--"[a]n attorney for the state who is not disqualified to act"--is rendered meaningless. This language clearly envisions the possibility that a district attorney may be disqualified prior to any request for recusal. With that said, we must now determine the circumstances by which such a "possibility" is created.<br /><br />4. Existing Limitations on Disqualification<br /><br />In Eidson v. Edwards, the court of criminal appeals held, "[i]f there is a conflict of interests on the part of the district attorney or his assistants . . . the responsibility of recusal lies with them, not with the trial court judge." (72) Though Eidson is of questionable precedential value, (73) its "holding" was later adopted by the court of criminal appeals in a majority opinion. (74) To date, there are only two recognized exceptions to this holding. The first is derived from the court of criminal appeals' plurality opinion in Hill v. Pirtle; (75) the second comes from article 2.01 of the code of criminal procedure. (76) According to Hill, "A trial court . . . may disqualify a district attorney or his staff on the basis of a conflict of interest that . . . rises to the level of a due process violation." (77) Under the code of criminal procedure, a district attorney is disqualified from representing the State "in cases where he has been, before his election, employed adversely." (78)<br /><br />The nature of the due process concerns raised in Hill are inapplicable to the instant case, as is the limitation imposed by article 2.01. Nevertheless, it would be inappropriate to limit ourselves to these exceptions as we are confronted with a case of first impression in the State of Texas. We have found no Texas case law factually similar to the case at hand, nor have we found any case law that addresses the legal question now before us: Can a judge appoint an attorney pro tem to assist a grand jury in investigating a district attorney's conduct when the district attorney has not sought recusal?<br /><br />5. Eidson's Inapplicability<br /><br />Though we previously quoted the Eidson "holding," it is worth taking a broader look at the its contextual language at this time. The Eidson opinion reads,<br /><br />There may be instances when a prosecutor must recuse himself from the prosecution of an individual. If there is a conflict of interests on the part of the district attorney or his assistants, however, the responsibility of recusal lies with them, not with the trial court judge. We do not wish to imply that a defendant would be left without recourse if the prosecution's failure to recuse itself violated his due process rights. If, for example, a prosecutor who had previously represented a defendant later personally prosecuted the defendant in the same matter, the defendant's conviction would violate the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. (79)<br /><br /><br />This language demonstrates the inapplicability of Eidson to the case at hand. First, the Eidson plurality was focused on instances whereby a prosecutor must decide whether to recuse himself from the prosecution of an individual; it was not focused on the circumstances in which a prosecutor must decide whether to recuse himself from the prosecution of himself. Second, the Eidson plurality identified federal and state constitutional protections--safeguards that are not as readily available in this case. The plurality further argued that, "even more importantly," a district attorney's "violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant." (80)<br /><br />The safeguards espoused by the Eidson plurality provide no protection at all in the instant case. The remedy of seeking a reversal on appeal is wholly inapplicable to circumstances in which a grand jury's investigation may be thwarted or obstructed by the very individual it is investigating.<br /><br />For these reasons, we conclude that Eidson is inapplicable to the case at hand and, accordingly, does not control our disposition of the instant case. Absent controlling Texas case law, we now look to case law in other states for guidance.<br /><br />6. Outside Treatment<br /><br />In Northcutt v. Howard, (81) a Kentucky appeals court dealt with a case similar to the one before us. In Northcutt, a judge instructed a grand jury to investigate the commonwealth attorney and other elected officials and promptly appointed an attorney pro tem to assist this investigation. (82) The commonwealth attorney contested this act, requiring the judge to seek a declaration of his rights before the appeals court regarding the appointment. In the course of assessing the propriety of the judge's action, the appeals court stated:<br /><br />There can be no doubt that if the commonwealth attorney was under indictment he would be disqualified from prosecuting the case against himself, and the circuit court in such case has the right to appoint a commonwealth attorney pro tem to conduct the trial of a felony charge against the commonwealth attorney. This being true, it follows as a matter of course that when the grand jury is actually investigating such a charge against the commonwealth attorney, he is thereby automatically disqualified from assisting the grand jury in such investigation. (83)<br /><br /><br />In Commonwealth v. McHale, (84) the Pennsylvania Supreme Court upheld a trial judge's appointment of a "special district attorney." In McHale, the regular district attorney had refused to sign and send indictments to a grand jury because he claimed the indictments contained factual errors. These indictments addressed an allegation of electoral fraud--fraud that, if true, would have increased the district attorney's vote in an earlier election. (85) The trial judge provided the district attorney an opportunity to sign the indictments or to present alternative indictments, but the district attorney failed to do so. The judge then appointed an attorney to assist the grand jury. On appeal to the supreme court, it was argued that the indictments should be quashed because they were not signed by the district attorney. The court rejected this argument, stating:<br /><br />The appointment . . . was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. (86)<br /><br /><br />In Lattimore v. Vernor, (87) a county attorney sought a writ of prohibition after a district judge appointed an attorney pro tem to assist a grand jury that was investigating whether the county attorney had committed any criminal acts. (88) The Oklahoma Supreme Court held:<br /><br />A county attorney is disqualified to appear before a grand jury when said grand jury is investigating the conduct of said county attorney, and the district court has authority, under section 5745, C.O.S. 1921, to declare the disqualification of the county attorney, in so far as he is disqualified, and to appoint a special or substituted county attorney to conduct such inquiry, in so far as the county attorney is disqualified, subject to a superintending control by the Supreme Court. (89)<br /><br /><br />An Oklahoma state statute authorized a district court to appoint an attorney pro tem when the county attorney was "disqualified to act." (90) The supreme court noted, however, that even if the statute did not have the "disqualified to act" language, the district court could have utilized its "inherent power" to make the appointment. (91)<br /><br />In addition to the Oklahoma Supreme Court, the assertion that a court has the inherent power to appoint an attorney pro tem when the county elected attorney is under grand jury investigation has been embraced by the Arkansas Supreme Court, (92) Ohio Supreme Court, (93) Colorado Supreme Court, (94) Indiana Supreme Court, (95) and a California court of appeals. (96)<br /><br />7. This Court's Holding<br /><br />In an opinion authored over 140 years ago, the Texas Supreme Court held:<br /><br />It is a part of the duty of the district attorney to prepare judgments under the direction of the grand jury; but the powers and duties of the grand jury do not cease because there may happen to be no district attorney. In case of a vacancy in the office of district attorney, or in case of the district attorney's temporary disability to act, or in any particular case where there might exist special reasons why he should not act, any other competent person might act in the preparation of indictments, by the authorization of the court. (97)<br /><br /><br />We are currently confronted with a case in which there undoubtedly exist special reasons why relator should not act and why he is disqualified to act. Accordingly, respondent was authorized to appoint a competent person to act in relator's place, and we find that this authorization is explicitly derived from article 2.07 of the code of criminal procedure. (98)<br /><br />A judge has the authority, as well as an obligation, to appoint an attorney pro tem to assist a grand jury that intends to criminally investigate the district attorney. (99) In such a situation, the district attorney is deemed "disqualified to act" for purposes of article 2.07(a) of the code of criminal procedure, and disqualification need not solely arise from the attorney's own motion to recuse under subsection (b-1). (100)<br /><br />While we find that respondent's appointment of an attorney pro tem was explicitly authorized by article 2.07, we further find that such appointment was implicitly authorized by a court's inherent power. In Johnson v. State, (101) the Texas Court of Criminal Appeals held:<br /><br />In addition to specific power to act conferred by constitutional provision, statute, or common law, all courts have inherent authority to take certain actions. In Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979), our sister court noted that in addition to express grants of power, a court has inherent judicial power, which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity. Courts may also have implied authority to act, arising from specific grants of power.<br /><br />In sum, a court may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or the power to take the action arises from an inherent or implied power. (102)<br /><br /><br />Through the appointment of an attorney pro tem, respondent denied relator the opportunity to participate in the grand jury's investigation into his conduct. In doing so, the appointment served to preserve the integrity of the court and aid in the administration of justice. We thus hold that respondent did not commit a clear abuse of discretion by disqualifying relator without his consent.<br /><br />8. The Limitations of this Court's Holding<br /><br />We must make a few essential observations concerning this Court's holding. We begin by observing that, from the record before us, it appears that the grand jurors collectively approached respondent with a desire to investigate relator. The record does not reflect that respondent disqualified relator upon receiving notice that only one or a few grand jury members wanted to investigate relator. We also observe that the grand jury apparently investigated relator on its own initiative; the record does not reflect that respondent directed or prompted the commencement of the investigation. If the record regarding these circumstances reflected otherwise, we cannot say that our opinion would remain the same.<br /><br />Lastly, we held that respondent had the authority to disqualify relator because the grand jury wished to investigate relator for possible criminal conduct (e.g., "voter fraud"). When a grand jury wishes to investigate the district attorney for possible criminal wrongdoing, we have found that a judge is legally authorized to appoint an attorney pro tem to assist with the investigation because doing so is necessary to ensure that the grand jury is able to properly perform its duties. An appointment cannot be similarly justified, however, when the appointment is made to assist a grand jury in investigating a district attorney for non-criminal matters because the grand jury would be acting outside of its legally prescribed duties. It is evident under the law of Texas that a grand jury has no authority to investigate civil matters or to make any investigation into circumstances where no criminal offense is suspected or alleged. (103) Accordingly, a judge should be inclined to restrain, rather than assist, a grand jury that is investigating a matter outside the scope of its authority.<br /><br />In the instant case, respondent wrongfully assisted the grand jury in commencing an investigation into several non-criminal matters by appointing an attorney pro tem to aid in investigating said matters. These matters related to whether relator requested the grand jury to (1) investigate civil matters, (2) subpoena the District Judge, (3) investigate and indict several Willacy County elected officials, (4) present indictments without being shown supporting evidence, and (5) "true bill" a case even though the grand jury was in favor of a "no bill." These concerns fail to suggest any intelligible indicia of any criminal offense that may have been committed. While we find all this to be problematic, we do not believe that the January 17 order should be deemed voidable as a result. The order did, nonetheless, evidence the jury's desire to acquire the assistance of an attorney pro tem to investigate relator for possible criminal wrongdoing--theft, attempted theft, tampering with records, perjury, abuse of office, and voter fraud-a fact that is essential to this Court's holding.<br /><br />VII. Issue Four: Right to Notice and a Hearing<br /><br />Relator asserts that even if respondent had the power to disqualify him and to appoint an attorney pro tem, he should have been afforded notice and a hearing prior to the appointment. While this is not explicitly required by article 2.07, relator contends the law implicitly requires that notice and a hearing be afforded when a district attorney has not elected to voluntarily disqualify himself. Relator states that "[a] finding of disqualification would require that the Court conduct a hearing, allow for the presentation of evidence of disqualification, and allow the duly elected District Attorney the opportunity to present evidence and authorities showing that disqualification was not proper." Relator does not cite any law to support his assertion, and our own efforts to find law on point has again led us to look toward case law from other states.<br /><br />1. Outside Treatment<br /><br />Only a handful of courts have addressed the very contention relator asserts herein. Among these courts, we find the treatment provided by the West Virginia Supreme Court to be of great guidance.<br /><br />a. West Virginia<br /><br />In State ex rel. Matko v. Ziegler, (104) the West Virginia Supreme Court addressed a case that is nearly factually identical to the one now before us. The facts in Matko are as follows:<br /><br />On November 12, 1970, after the grand jury had returned several indictments, the foreman of the grand jury informed the special judge that some members of the grand jury desired to investigate other matters, and one grand juror, in the presence of the [elected prosecutor], stated that the matters in question related to bribery concerning [the prosecutor]. . . . [T]he court advised the jury that it could investigate the matters and in the presence of the grand jury informed [the prosecutor] that he would appoint a special prosecuting attorney to conduct the investigation as the court was of the opinion that [the prosecutor] and his assistants were disqualified from acting in the matters. The court then excused the grand jury until November 18.<br /><br /><br />. . . .<br /><br />The grand jury reconvened on November 18, and on November 23, returned [an] indictment against [the prosecutor]. Before the adjournment of the grand jury, [the prosecutor] . . . filed his petition in which he prayed that the grand jury be discharged and dismissed; . . . that the special prosecuting attorney be discharged and the order appointing him rescinded; . . . [and] that, if the grand jury were not discharged, . . . that [the prosecutor] be permitted to appear before the grand jury and give such testimony as he might desire. . . . [T]he grand jurors informed the court that they were unwilling to hear any testimony by [the prosecutor], and . . . the court refused to grant [the prosecutor's] prayer . . . . (105)<br /><br /><br />The supreme court first ruled that the judge had authority to make the appointment under West Virginia Code § 7-7-8, which provided that "if in any case the prosecuting attorney and his assistant be unable to act, or if in the opinion of the court it would be improper for him or his assistant to act, the court shall appoint some competent practicing attorney to act in such case." (106) The court then went on to reject the prosecutor's claim that he should have been afforded notice and a hearing, stating:<br /><br />The statute clearly contemplates summary action by the trial court, in which a proceeding is pending, and makes no provision for notice to the prosecuting attorney or for a hearing concerning his disqualification to act in the particular circumstances. Any provision for notice and hearing would result in delay and operate to defeat the purpose of the statute. Furthermore, notice and hearing are generally unnecessary for, as here, there is no dispute in the material facts and the court and the prosecuting attorney were entirely and equally familiar with the situation which disqualified the petitioner from acting as the prosecuting attorney in connection with the proceedings relating to his indictment and prosecution. (107)<br /><br /><br />The West Virginia Supreme Court revisited Matko eight years later in State ex rel. Preissler v. Dostert. (108) In Preissler, a judge removed the elected prosecutor from a case and appointed an attorney to act in his place. (109) The judge never received a formal request to remove the prosecutor; (110) rather, the judge predicated removal upon his belief that the prosecutor had made statements about the case that (1) violated the code of professional responsibility and (2) evidenced an intent not to prosecute. (111) The supreme court, recognizing that the judge had disqualified the prosecutor without any formal request to do so, held that the judge "was not empowered to enter the order on his own motion." (112) The court then proceeded to address the question of whether a judge had the power "to discharge summarily a publicly elected prosecutor from the performance of his duty." In addressing this question, the court compared Preissler and Matko, noting the factual distinctions that led to each elected prosecutor's disqualification:<br /><br />We note, however, that Matko involved a proceeding in the circuit court wherein the elected prosecuting attorney had been indicted by the grand jury upon a felony charge. The disqualification of the prosecutor to act resulted from his status as a criminal defendant, obvious on the face of the indictment. There was no need for a hearing since his status inherently rendered his prosecution of the case improper. Here, however, the determination of impropriety to act is not based on the status of the prosecutor but rather on the issue of the prosecutor's refusal to prosecute. Not only does the question require presentation of facts in order to enable the judge to reach an opinion on the matter, but it also requires a charge that the prosecutor is avoiding or sidestepping the duties imposed on him by the Constitution and by his office. In such a situation the circuit court judge cannot summarily override the Constitutional mandate that the prosecuting attorney perform the duties of his office without first conducting a full and proper hearing. Consequently, we would limit the holding in Matko, on this issue, to the facts in that case, and we would hold that where recusal of a prosecuting attorney from the prosecution of the criminal case under W. Va. Code § 7-7-8 is sought on the basis of his failure to perform his official duties, the circuit court judge cannot summarily recuse the prosecutor but must afford the opportunity to have a hearing on the matter. . . . (113)<br /><br /><br />Preissler thus established that, as a general rule, an elected prosecutor is entitled to notice and a hearing prior to a judicial determination that he is disqualified to act in a case or proceeding; meanwhile, Matko's holding--bound by the unique factual situation from which it was derived--was left as an exception to this rule. Preissler went on to hold that, before a prosecutor may be disqualified from acting in a particular case, "the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard." (114)<br /><br />b. Other Courts<br /><br />In State ex rel. Ilvedson v. District Court, (115) the North Dakota Supreme Court confronted a case that was factually similar to Preissler. In Ilvedson, a group of individuals presented the elected prosecutor with a petition, requesting that he take action against the county commissioners to recover a debt owed to the county. (116) When the prosecutor failed to take an action that satisfied the petition's endorsers, they requested the assistance of the district judge. (117) In response, the judge disqualified the prosecutor from undertaking any further action against the commissioners, and assigned the responsibility for all future action to an appointed attorney. (118) The judge derived his appointment authority from a statute that allowed a judge to appoint an attorney when the prosecutor failed or neglected to prosecute a case that the judge believed should be prosecuted. (119) Though the statute did not explicitly afford the prosecutor a right to notice and a hearing prior to a finding of disqualification, the prosecutor argued he was entitled to as much. The supreme court agreed with the prosecutor, stating:<br /><br />Assuming, without deciding, that the legislature may provide for a partial or limited removal of the state's attorney--removal in so far as the institution and prosecution of one particular action is concerned--clearly it may not authorize such removal except after notice and hearing. Hence, if the legislature intended to confer upon the district judge power to determine whether the state's attorney has refused or neglected to perform his duty, and to order that the state's attorney be deprived of all power and duty as such in connection with the institution and prosecution of a certain action, all without notice to the state's attorney, or opportunity to be heard on the question whether he has refused or neglected to perform his duty, then the statute is manifestly unconstitutional. But, it will not be presumed that the legislature had any such intention, unless it has clearly expressed such intention in the law itself. The presumption is that the legislature intended that the removal proceeding which it prescribed should be in accordance with the principle of due process of law. (120)<br /><br /><br />In Lattimore v. Vernor (121) and State ex rel. Thomas v. Henderson, (122) the Oklahoma Supreme Court and the Ohio Supreme Court, respectively, held that an elected prosecutor was entitled to notice and a hearing prior to being involuntarily disqualified and having an attorney pro tem subsequently appointed in his place. Both courts so held in response to a trial judge who had appointed an attorney to assist a grand jury in criminally investigating the prosecutor. In both cases, the judge, on his own initiative, empaneled the grand jury and directed the jury to investigate the prosecutor.<br /><br />c. Contrasting Matko<br /><br />Of the five cases just discussed, only Matko held that the elected prosecutor was not entitled to notice and a hearing prior to his disqualification. While Matko may appear to be inconsistent with the other cases' holdings, there are two critical facts in Matko that make its holding distinguishable, thus obviating any conflict with the other cases.<br /><br />Matko, like Lattimore and Vernor, involved a prosecutor who was disqualified as a result of being the subject of a grand jury investigation. Preissler and Ilvedson each involved a prosecutor who was disqualified for allegedly failing to perform the duties of his office (i.e., refusing to prosecute a case). (123) The difference between these two grounds for disqualification, as we previously noted from Preissler, is that the question of whether a prosecutor should be disqualified for refusing to prosecute requires not only the "presentation of facts in order to enable the judge to reach an opinion on the matter, but it also requires a charge that the prosecutor is avoiding or sidestepping the duties imposed on him by the Constitution and by his office." (124) The question of whether a prosecutor should be disqualified when he is the subject of a grand jury investigation, on the other hand, does not necessitate the "presentation of facts . . . to enable the judge to reach an opinion," nor does it require a finding that the prosecutor is "sidestepping the duties imposed on him."<br /><br />The reasoning behind this position--as viewed through the law of our state--is that even if the judge believed that the prosecutor had not committed wrongdoing, the judge's opinion would have no practical relevance because it does not provide a legally authorized basis for prohibiting the grand jury from investigating the prosecutor. (125) Additionally, the presentation of facts relating to whether the prosecutor actually committed wrongdoing is unnecessary because no evidentiary bar needs to be satisfied in order for a grand jury investigation to commence. (126) Lastly, as noted in Preissler, there is "no need for a hearing since [the prosecutor's status as a criminal defendant] inherently renders his prosecution of the case improper." (127)<br /><br />The second key factual distinction in Matko, which is not present in any of the other cases, is that in Matko:<br /><br />[I]t was members of the grand jury who approached the criminal court judge to request permission to investigate the elected prosecutor. Thus in Matko, the criminal court judge in no way initiated the proceedings, nor did he aid, abet, or encourage any activities against the prosecutor that were not forced upon him by the entreaties of third parties. (128)<br /><br /><br />In Preissler and Ilvedson, the judge was not forced by the entreaties of third parties to disqualify the prosecutor. Furthermore, in Lattimore and Thomas, the judge was responsible for initiating the grand jury investigation against the prosecutor, thus singlehandedly creating the need and the basis for the prosecutor's disqualification. This is problematic because, as articulated in Preissler, "[t]o permit a judge to invoke the jurisdiction of his court sua sponte would place him in a position of a complainant deciding the merits of his own complaint in violation of the ancient homily of the law that no man may be a judge in his own case." (129)<br /><br />2. Right to Notice and a Hearing Under Article 2.07<br /><br />We hold that article 2.07 implicitly affords a district attorney the right to notice and a hearing before he is deemed disqualified to act in any case or proceeding. We further hold, however, that this right ceases to exist in situations like the one now before us, where: (1) a grand jury, on its own initiative, sought to investigate the district attorney for possible criminal wrongdoing; (2) the judge, upon being confronted with the grand jury's desire to investigate the district attorney, disqualified the district attorney from participating in the grand jury's investigation; and (3) the judge subsequently appointed an attorney pro tem to assist the grand jury with its investigation. While our holdings are undeniably influenced by the out-of-state case law discussed herein, they are primarily predicated upon our observations of the law in this state.<br /><br />While there are various means by which a district attorney may be lawfully restricted from performing, in whole or in part, the duties of his office, these means typically afford him with notice and a hearing. For instance, under our state constitution, a district judge cannot remove the district attorney for incompetency, official misconduct, or other causes defined by law, without the attorney being found guilty of the charges against him at the conclusion of a jury hearing. (130) Additionally, in cases where a criminal defendant files a pretrial motion to disqualify the district attorney from prosecuting a case against him, the motion may not be granted without the defendant proving at a hearing that there is a conflict of interest that rises to the level of a due process violation. (131) Even in instances in which the district attorney wishes to voluntarily recuse himself, article 2.07 demands that the district attorney seek approval from the judge by showing good cause for his recusal--a requirement that necessitates some basic level of communication and interaction between the judge and district attorney prior to disqualification. (132) In light of all this, our conclusion that article 2.07 implicitly requires notice and a hearing is consistent with Texas law. (133)<br /><br />This Court's decision to not extend the right to notice and a hearing to the instant case also finds support in the law of this state. The Texas Supreme Court has recognized that an elected county official is not always entitled to notice and a hearing prior to being restricted in the performance of his duties. In Griner v. Thomas, Thomas, a district judge, signed an order temporarily suspending Griner, a county judge, from office. (134) The temporary suspension was made pending the hearing of a petition for the removal of Griner from office. On appeal, Griner complained that if Thomas had the power to temporarily suspend him, he could not have done so without first affording him notice and a hearing, which were not provided. (135) The supreme court rejected this complaint, stating:<br /><br />[I]t is argued that . . . notice and a hearing should be required before a suspension is made. It is conceded that the statute does not, in terms, require notice, but it is insisted that it is essential to that due process of law without which no one may be deprived of his property, and that the requirement of it should therefore be read into the law. But such a requirement would be inconsistent with the terms of the statute, which prescribes the only notice to be given, that of the final hearing, and authorizes the suspension at any time after the order therefor has been made. To hold that notice and a hearing were necessary before suspension would render the power futile. To the contention that suspension without notice is a deprivation of property without due process, the answer is that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination, and, hence, the application of remedies so provided for does not unduly deprive him of any property. (136)<br /><br /><br />The petition for removal in Griner does not appear to operate any differently than the modern-day petition that is filed in accordance with chapter 87 of the local government code. Chapter 87 states that pending a county officer's trial, a "district judge may temporarily suspend the officer and may appoint another person to perform the duties of the office." (137) While a judge may suspend an officer, he may not do so until (1) "[a]fter the issuance of the order requiring citation of the officer," (138) and (2) after "the person appointed to serve executes a bond, with at least two good sufficient sureties, in an amount fixed by the judge and conditioned as required by the judge." (139) It is conceivable that both of these requirements can be fulfilled prior to the officer acquiring notice through his receipt of the citation and petition; therefore, chapter 87 does not appear to guarantee that the officer will receive notice prior to his suspension. Lastly, chapter 87 clearly does not guarantee the right to a hearing prior to suspension, for it contains no statute prescribing such a requirement.<br /><br />One final notable aspect of Griner is the supreme court's response to "the contention that suspension without notice is a deprivation of property without due process." The supreme court's answer--"that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination"--reflects the idea that an individual who accepts public office takes it cum onere, (140) that is, the individual "assumes the burdens and the obligations of the office as well as its benefits, subjects himself to all constitutional and legislative provisions relating to the office, and undertakes to perform all the duties imposed on its occupant." (141)<br /><br />There is nothing incredibly novel about this Court's decision that relator was not entitled to notice and a hearing prior to his disqualification. In light of Griner, we are clearly not the first court to find that a county officer can be lawfully impeded in the performance of his official duties without first receiving notice and a hearing. This finding, moreover, is a present reality with temporary suspensions under chapter 87. Lastly, we note that in holding that relator was not entitled to notice and a hearing, we have not acted in opposition to the holdings of any out-of-state cases discussed herein--a point that was fully developed earlier in this opinion by our discussion distinguishing Matko.<br /><br />In the instant case, the grand jury notified respondent of its desire to investigate relator for possible criminal wrongdoing. Relator contends that, had he been afforded a hearing, he would have provided respondent with testimony and evidence to show that the grand jury's concerns were without merit. Even if we assume relator's contention is correct, it does not change the fact that respondent was nonetheless required to disqualify relator, given that: (1) relator's status as the subject of the investigation rendered his involvement in the investigation inherently improper; (2) respondent was not authorized to prohibit the investigation, even if she felt it was of questionable necessity; (142) (3) the grand jury was entitled, as expressed earlier in this opinion, to be assisted by an attorney that it could work with appropriately; and (4) respondent had an obligation to disqualify relator and appoint an attorney pro tem to secure the integrity of the grand jury system and the proper administration of justice. Only the grand jury could have terminated the commencement of its investigation, and whether or not relator is afforded the opportunity to address the grand jury is a matter that is decided by the jurors, (143) not by him. (144) Furthermore, any public benefit that could have derived from relator being afforded a hearing is negligible in this case, because any such benefit is trumped by the need to recognize the longstanding reasons for maintaining the secrecy of the grand jury's proceedings. (145)<br /><br />3. Conclusion<br /><br />This Court holds that a district attorney is entitled to notice and a hearing prior to his disqualification under article 2.07, but also holds that the nature of relator's disqualification presents an exception to this general rule. We have interpreted article 2.07 in a manner we believe the law requires; accordingly, we further believe that relator has no proper basis for complaining that his right to his office has been unduly impeded by either respondent or this Court. Relator, after all, accepted the office of district attorney cum onere. His hold on the office is subject to the laws of this state which allow for his termination, suspension, and disqualification; the application of such laws evolves through the statutory interpretations provided by the courts of appeals of this state. Based on the interpretation of article 2.07 we espouse today, we find that respondent did not commit a clear abuse of discretion by failing to provide relator notice and a hearing.<br /><br />VIII. Issue Five: Causing District Attorney's Office to Cease all Operations<br /><br />In his final issue, relator asserts that respondent's January 11 order constitutes a clear abuse of discretion because it has effectively placed the Willacy County District Attorney's Office in a state of disarray. To support this contention, relator primarily asserts that, as a result of the order, Garza was able to acquire the warrant that was ultimately utilized to seize computers and files within the district attorney's office, items which are essential to the office's continued operation. Relator requests that this Court quash the search warrant that was issued by Judge Leal, and order the return of the items seized. (146) Relator, however, has not equipped this Court with the pleadings, evidentiary record, and briefing needed to entertain such a request. We thus deny the relief requested.<br /><br />With regard to respondent, we do not believe the legality of her order should be predicated upon the impact the order may directly or indirectly have on the district attorney's office. The Texas Supreme Court's opinion in Poe v. State (147) largely reflects the basis for our belief. In Poe, a county sheriff was suspended by a district judge, pending a hearing on a petition for the sheriff's removal from office. (148) The sheriff was found guilty at the hearing and subsequently removed from office. (149) The sheriff then contested his removal on appeal. In addressing the judge's authority to suspend, the court commented:<br /><br />The suspension of an officer may be inconvenient and may even prove to be a great wrong to him. While the suspension is by the terms of the law only a temporary deprivation of the office, it in every case may be what it in effect was in this, a permanent deprivation of the office. . . .<br /><br />. . . The public interests as well as those of the office holder are to be regarded. The law does not compel the district judges to suspend the officer, but entrusts them with the discretion to do it, as it in the like manner trusts their discretion in many other matters equally important. The safety of the public and every citizen is found in the judicious exercise of that discretion. (150)<br /><br />In our case, the law, through article 2.07, afforded respondent the discretion to disqualify relator. While respondent's decision to disqualify has arguably inconvenienced the district attorney's office, we presume that her decision was made with the public and relator's best interests in mind. The law entrusts respondent with the safety of the public and every citizen, and despite the concerns expressed by relator, we cannot say that respondent has faltered in upholding this responsibility. Accordingly, we overrule this issue on appeal.<br /><br />IX. Issue Six: Failure to Appoint a Competent and Qualified Attorney<br /><br />Relator contends the trial court abused its discretion in appointing an individual who was not "competent" because he was not independent, unbiased, without conflicts of interest, was a witness on at least one of the concerns raised by the grand jury, and because his appointment would violate the incompatibility doctrine. Relator asserts that the standards for disqualification apply to attorneys pro tem, and further asserts that Garza was "disqualified" from acting as an attorney pro tem because, inter alia:<br /><br />1) Judge Gustavo Garza is Relator's long time political opponent who has run against Relator on four separate occasions for the post of Willacy County District Attorney, and as late as the last election for district attorney in 2004;<br /><br /><br />2) There is a tremendous amount of animosity between Relator and Judge Gustavo Garza such that it has resulted in a physical altercation between the two on at least one occasion . . .<br /><br /><br />3) Judge Gustavo Garza is the court appointed contract attorney who has been hired to represent most of the indigent defendants who have criminal cases pending in said court . . .<br /><br /><br />4) Judge Gustavo Garza is a sitting Justice of the Peace and, therefore, is disqualified from serving as an attorney pro tem (acting district attorney) due to the constitutional prohibition that no person may serve in both the judicial and executive offices at the same time, under the doctrine of incompatibility of public offices . . .<br /><br /><br />5) Judge Gustavo Garza is a witness to one of the 'concerns' raised by the Grand Jury of the 197th District Court . . .[that is,] 'voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004,' in that Judge Gustavo Garza was a candidate for district attorney opposing Relator during that same election.<br /><br /><br />Relator's arguments focus on (1) Garza's "competence" under article 2.07 of the code of criminal procedure, and (2) the general standards for disqualification of an attorney. We apply, in general, an abuse of discretion standard to the trial court's appointment of an attorney pro tem. (151)<br /><br />1. "Competent Attorney"<br /><br />Article 2.07(a) states that a "judge . . . may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state." (152) When the appointment of an attorney pro tem is necessary under article 2.07, the decision of whom to appoint lies within the discretion of the trial court." (153) The only limitation imposed by the statute is that the court appoint a "competent attorney" to serve. (154) The statute, however, does not define that term.<br /><br />The Waco Court of Appeals is the only court that has attempted to bring meaning to the term "competent" within article 2.07(a). (155) In Shea v. State, the Waco court addressed Shea's claim that the trial court had failed to appoint a "competent attorney" because the attorney pro tem was serving a federal probation for misprision of a felony. (156) The court used Webster's Dictionary to define the term "competent" as meaning "legally qualified or adequate." (157) The court then overruled appellant's claim, finding that Shea had presented no evidence that the attorney pro tem's license had been suspended or that he was not otherwise a "member in good standing" with the State Bar. (158)<br /><br />While we take no issue with the treatment given to the term "competent" in Shea, we do question whether the term actually holds any significant consequence. If, for example, we were to assume that the term "competent" was not in article 2.07, it is conceivable that Shea's claim could still be asserted through the term "attorney." For instance, a state could hardly claim to satisfy an accused's sixth amendment right "to have the assistance of counsel for his defense" (159) if the state provided the accused with an attorney that could not legally practice in the court in which the accused was to be tried. The state could not justify this action on the basis that the sixth amendment does not explicitly afford the right to "competent counsel." With that said, the meaning of the term "attorney" in article 2.07 should not be construed any less significantly.<br /><br />This Court does not believe the term "competent attorney" in article 2.07 holds any more meaningful significance than it does in section 6.30(c) of the Texas Tax Code (160) or rule 8 of the Texas Rules Governing Bar Admission. (161) The placement of the term "competent" in article 2.07, at most, serves to advise the court that it should appoint an attorney that has some knowledge of the law with which he will be dealing. Relator's factual allegations under this issue do not attack Garza's legal qualifications as an attorney or his adequacy as an attorney in general, and accordingly, we conclude that Garza is "competent" to serve as an attorney pro tem under article 2.07.<br /><br />2. Disqualification<br /><br />Relator's remaining arguments under this issue urge that Garza is disqualified to serve as attorney pro tem. It is clear that attorneys pro tem are subject to disqualification in the same manner as district attorneys. (162) A prosecutor is appointed solely to pursue the public interest, and a private attorney appointed to prosecute should be as disinterested as a public prosecutor. (163) We will address relator's arguments seriatim.<br /><br />a. Practicing Criminal Defense Counsel<br /><br />Relator asserts that Garza should not be attorney pro tem because he is currently acting as criminal defense counsel in Willacy County. This matter was somewhat addressed in an opinion from the Texas Attorney General's Office. (164) The opinion addressed whether article 2.08 of the code of criminal procedure disqualified a county attorney pro tem from acting as criminal defense counsel in an adjoining county. Article 2.08 prohibits district and county attorneys from appearing "of counsel adversely to the State in any case, in any court." (165) The stricture prevents the district and county attorney from representing a party adverse to the State in any court in the State; representing a criminal defendant constitutes being "of counsel adversely to the State." (166)<br /><br />Confronted with the question of whether article 2.08 also applies to an attorney appointed as a county or district attorney pro tem, the attorney general's office stated:<br /><br />By its plain terms, article 2.08 disqualifies district and county attorneys, i.e., constitutional district and county attorneys, from acting as counsel adversely to the state in any court. Attorneys appointed pro tem to perform the duties of a county or district attorney are not included. Although the Legislature could have written article 2.08 to also apply to an attorney appointed pro tem, it did not do so. We may "add words into a statutory provision only when necessary to give effect to clear legislative intent." Moreover, we may consider the consequences of a particular construction and will presume a feasible result was intended. If an attorney who accepts even one pro tem appointment for a single case cannot engage in criminal defense in any court in the state, then article 2.08 would effectively exclude the most qualified private attorneys--those with an ongoing defense practice--from accepting any pro tem appointments. Consequently, we conclude that article 2.08 applies to county attorneys under the constitution, but not to attorneys appointed to perform the duties of the office pro tem. (167)<br /><br /><br />This reasoning admittedly addresses a different circumstance from the one before us. The opinion dealt with an individual who did not act as an attorney pro tem and a criminal defense counsel in the same county. This is a distinction from the case before us--a distinction that is made more significant by the fact that our attorney pro tem is investigating a district attorney, and as a result, can potentially take control of sensitive information that pertains to cases he is working on as a criminal defense counsel. Despite the distinction, however, we believe the attorney general's reasoning can be adequately applied to the instant case.<br /><br />Article 2.07 states that a judge can appoint "any competent attorney." (168) The statute contains no wording from which one can derive the interpretation that a judge cannot appoint a criminal defense counsel who is practicing in the same county. Although the Legislature could have written appointment restrictions into article 2.07(a), it did not do so. Furthermore, while this Court may question, in light of the concerns expressed in the preceding paragraph, whether it was a good idea to appoint Garza for the purpose of investigating relator, we cannot say that respondent committed a clear abuse of discretion. (169)<br /><br />b. Justice of the Peace<br /><br />Relator contends that Garza is legally incompetent to act as attorney pro tem because he is a justice of the peace, and he may not hold two offices that are incompatible. Under the common law, one person cannot simultaneously hold two incompatible offices, and the general rule is that the acceptance and qualification for a second office incompatible with the first office is an implied resignation of the first office. (170) In determining incompatibility, the crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other. (171)<br /><br />Assuming that an attorney pro tem assumes an "office," we fail to see how Garza's appointment as attorney pro tem conflicts with his position as justice of the peace. We first note that Garza is an attorney pro tem serving Willacy County, while he is a justice of the peace in Cameron County. Second, relator has not demonstrated how Garza's fulfillment of these two positions will be detrimental to the public interest or how the performance of his duties as justice of the peace will interfere in any way with his duties as attorney pro tem. Accordingly, this Court fails to see any error on the part of respondent on this basis.<br /><br />c. Animosity, Bias, and Conflicting Interests<br /><br />Relator also argues that Garza was disqualified as an attorney pro tem because Garza was "not independent, unbiased, without conflicts of interest," and he was a witness to one of the concerns raised by the grand jury. According to relator, Garza has been relator's "long time political opponent who has run against relator on four separate occasions for the post of Willacy County District Attorney, and as late as the last election for district attorney in 2004." (172) Relator further asserts that "there is a tremendous amount of animosity between relator and Judge Gustavo Garza such that it has resulted in a physical altercation between the two on at least one occasion." Relator also points out that Garza was a candidate for district attorney in the same election in which, as attorney pro tem, he was investigating relator for "voter fraud." Relator argues that Garza's service as attorney pro tem raises questions about the integrity of the criminal process and creates an appearance of impropriety. (173)<br /><br />The absence of an impartial and disinterested prosecutor has been held to violate a criminal defendant's due process right to a fundamentally fair trial. (174) Put another way, the due process rights of a criminal defendant are violated when a prosecuting attorney who has a conflict of interest relevant to the defendant's case prosecutes the defendant. It is clear; however, that the trial court may not disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise to the level of a due-process violation. (175)<br /><br />The question whether there is a conflict of interest is dependent upon the circumstances of the individual case. Because there is no bright-line rule for determining whether a conflict rises to the level of a due-process violation, each case must be analyzed on the facts peculiar to it. As the United States Supreme Court has explained:<br /><br />Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise [that] must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake. (176)<br /><br /><br />The burden is on the party seeking disqualification of the prosecutor to present evidence establishing the existence of disqualifying bias or prejudice. (177) Mere allegations of wrongdoing will not suffice. (178)<br /><br />The issue of what constitutes an "impartial" prosecutor requires explanation. A prosecutor is not "partial" simply because he zealously seeks a conviction. Rather, "partiality" in this context is similar to a conflict of interest in the sense that the prosecutor has a personal interest or stake in the outcome of the criminal prosecution. Thus, "partiality" refers not to personal zeal but to a situation where the personal interests of the prosecutor generate a structural conflict of interest. (179) That is to say, a prosecutor's personal interest or partiality may present "an actual conflict of interest if its potential for misconduct is deemed intolerable." (180)<br /><br />In this regard, we would note that courts have observed that "the zeal of the prosecutor who covets higher office or who has a personal political axe to grind may well exceed the zeal of" a prosecutor who has more limited ambitions. (181) Nevertheless, a prosecutor's political ambitions alone are not enough to support a finding that a prosecutor is not sufficiently disinterested. (182) Furthermore, Texas case law clearly shows that a mere potential or perceived conflict of interest is not sufficient to warrant disqualification. (183) We do not lightly disrupt the orderly prosecution of those who have committed crimes against the State and her citizens.<br /><br />A prosecutor's "primary duty" is "not to convict, but to see that justice is done." (184) In this regard, any interest that is inconsistent with the prosecutor's duty to see that justice is done is a conflict that could potentially violate a defendant's right to fundamental fairness. For example, if a prosecutor has a financial stake in the outcome of a prosecution, the conflict between that interest and the duties of the public office clearly presents constitutional concerns. (185) Additionally, a prosecutor's potential access to or use of confidential information obtained through prior representation of the defendant could undermine the fairness of the prosecution. (186) Moreover, a conflict arising from a prosecutor's non-economic, personal interest in the case can violate a defendant's right to due process. (187) For example, certain violations of the election code can give rise to causes of action for monetary damages to the opposing candidate in a race. (188)<br /><br />In this context, relator's complaints that it was improper to appoint Garza to investigate voter fraud in an election which he lost are of significant concern. Garza knew, when he drafted the order appointing himself as attorney pro tem, that one of the allegations against relator involved election fraud, specifically "voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004." Garza was relator's opponent in that election. Accordingly, there is a potential conflict between Garza's direct personal interest in the results of the criminal investigation of these charges and Garza's duty to see that justice is done. A prosecutor should not be subject to influences that undermine confidence that the prosecution can be conducted in a disinterested fashion. We cannot have confidence in a proceeding in which an interested prosecutor plays the critical role of preparing and presenting the case for the defendant's guilt. We believe, under these circumstances, relator has been or will be prejudiced by this conflict, and such conflict rises to the level of a due process violation.<br /><br />d. Prosecutor Serving as a Witness<br /><br />Relator contends that Garza's status as a candidate in the election in which relator is accused of voter fraud "makes [relator] a witness." In determining whether counsel should be disqualified because counsel is a potential witness, Texas courts use rule 3.08 of the Texas disciplinary rules of professional conduct as a guideline. (189) The rule does not present the disqualification standard, but does provide considerations relevant to the determination. (190)<br /><br />Counsel may be disqualified under the disciplinary rules when the opposing party can demonstrate actual prejudice resulting from opposing counsel's service in the dual role of advocate-witness. (191) Allegations of one or more violations of the disciplinary rules or evidence showing only a possible future violation are not sufficient. (192) Moreover, the party seeking disqualification cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness. (193)<br /><br />Although mere allegations of a possible future violation of a disciplinary rule are not sufficient for the purposes of disqualification; the issue of disqualification can be determined early in the trial process despite the fact that "some speculation is involved." (194) Considering the issue of disqualification early in the trial process can avoid actual prejudice resulting from the opponent's service in dual roles and prevent a situation in which the opponent would experience substantial hardship if counsel were disqualified. (195) In such instances, however, the speculation cannot be unsupported or dubious. (196)<br /><br />We agree that Garza could be a material fact witness, if not the actual complainant, regarding the allegations under investigation. In the instant case, we perceive a very real probability that Garza would be called upon to testify regarding the alleged election fraud. Garza could be a material fact witness, and would be in fact the injured party if the allegations of election fraud were substantiated. If Garza were to testify, the confusion that would most likely result from Garza's multiple roles as prosecutor, witness, and interested party would substantially affect the jury's verdict. (197)<br /><br />e. Conclusion<br /><br />For the above reasons described in subsections "IX.c" and "IX.d" herein, under the facts of this case, we hold that respondent abused her discretion in appointing Garza as attorney pro tem. (198)<br /><br />Accordingly, we will conditionally issue mandamus relief with respect to relator's fourth issue.<br /><br />X. Contempt and Sanctions<br /><br />1. Motion for Contempt<br /><br />Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority. (199) Within this definition, there are two types of contempt: direct contempt and constructive contempt. (200) Direct contempt is that type of disobedience or disrespect which occurs within the presence of the court, while constructive contempt occurs outside the court's presence. The contempt alleged in this case, violation of a written court order, outside the presence of the court, is constructive contempt. A finding of contempt for disobedience to a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. (201)<br /><br />Relator filed an unverified motion for contempt with this Court, (202) alleging that respondent and Garza had violated this Court's March 15 stay order--which stayed the January 17 order appointing Garza as attorney pro tem--by meeting with the grand jury on March 21 for the purpose of handing down indictments against relator. This Court was mindful of the seriousness of charging a sitting judge with contempt. A judge's "refusal to obey the direct order of a superior court threatens the very integrity and continued validity of the State judicial system." (203) Accordingly, we scheduled a show cause hearing to ascertain the validity of relator's allegation. (204)<br /><br />Prior to the show cause hearing, respondent and Garza filed motions to dismiss relator's motion for contempt. Respondent's motion asserts that she "did not direct the Grand Jury of Willacy County to meet on March 21, 2007 and issue true bills against Relator." Garza, in his motion, similarly asserts that he "did not directly or indirectly recommend, request or direct the [grand jury] to meet on March 21, 2007 and/or to issue indictments against [relator]." Their assertions were later supported at the show cause hearing through their own testimony, as well as the testimony of the grand jury foreperson. (205) No contradictory testimony or evidence was presented. Therefore, because the evidence before us does not show beyond a reasonable doubt that respondent and Garza violated the stay order by meeting with the grand jury on March 21, 2007, we do not find respondent or Garza in contempt of this Court. (206)<br /><br />2. Motions for Sanctions<br /><br />Respondent and Garza have each requested that this Court sanction relator for the filing of his motion for contempt. Rule 52.11 of the Texas Rules of Appellate Procedure states:<br /><br />On motion of any party or on its own initiative, the court may--after notice and a reasonable opportunity to respond--impose just sanctions on a party or attorney who is not acting in good faith as indicated by any of the following:<br /><br />(a) filing a petition that is clearly groundless;<br /><br />(b) bringing the petition solely for delay of an underlying proceeding;<br /><br />(c) grossly misstating or omitting an obviously important and material fact in the petition or response; or<br /><br />(d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. (207)<br /><br /><br />In the instant case, respondent and Garza seemingly assert that relator should be sanctioned for "grossly misstating" that they were with the grand jury on March 21--"an obviously important and material fact."<br /><br />Though the evidence at the show cause hearing failed to support relator's allegation, it also failed to show that relator had not acted in good faith. A lack of good faith would be more evident if the evidence indicated that relator knew that his allegation was false and failed to take appropriate measures to apprise the Court of that fact. However, relator's counsel asserted at the hearing that he and relator did not learn that the allegation was called into question until respondent and Garza filed responses to the motion for contempt a day before the show cause hearing was scheduled to commence. Therefore, after carefully considering respondent and Garza's motions for sanctions, we find that both motions should be denied.<br /><br />3. Costs<br /><br />The Court incurred extraordinary costs of $2,210.90 and $1,016.20 in developing the evidentiary record necessary to resolve the foregoing motion for contempt and motions for sanctions. Given our disposition of the motion for contempt and motions for sanctions, the Court hereby assesses these costs against relator and Garza equally. We order these parties to pay such costs directly to this Court within thirty days of the date of this opinion. The Clerk of the Court is directed to forward the bills underlying these costs to the parties upon request.<br /><br />XI. Conclusion<br /><br />Issues one through five are overruled. We conditionally grant mandamus relief to vacate the improper past appointment of Garza as attorney pro tem due to Garza's conflict of interest in serving as attorney pro tem and the probability that Garza would have been a witness against relator had he been prosecuted for "voter fraud." The writ will issue only if the trial court fails to act in accordance with this opinion. Any pending motions filed in this cause and not specifically addressed herein are dismissed as moot.<br /><br />In so ruling, we do not address any related issues regarding the future development of this case, or what actions will be appropriate in light of Garza's removal as attorney pro tem. Such matters shall be presented to Judge Bañales for his consideration and ruling as an initial prerequisite for our further review, if any is indeed necessary.<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />LINDA REYNA YAÑEZ,<br /><br />Justice<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />Dissenting opinion by<br /><br />Justice Gina M. Benavides<br /><br /><br />Opinion delivered and filed this the<br /><br />21st day of September, 2007.<br /><br />1. The July Term grand jury was a "holdover" grand jury. See Tex. Code Crim. Proc. Ann. art. 19.07 (Vernon 2005).<br /><br />2. The warrant permitted the search and seizure of "all the computers, hard drives, flash drives, floppy discs, and any other computer device that will store information electronically." It further allowed for the seizure of "all financial records, all receipt books and any and all record books of seized property and records of expenditures of forfeited funds, including files, tapes, videos, recordings kept and contained within the Willacy County District Attorney's Office."<br /><br />3. See Tex. Penal Code Ann.<br />§ 31.03 (Vernon Supp. 2006).<br /><br />4. Despite the petition's title, relator's petition does not argue or pray for a writ of injunction. Instead, relator prays for the same general relief that he later sets out in his amended petition, which is outlined below and construed by this Court as a writ of mandamus. See In re Estate of Head, 165 S.W.3d 897, 902 (Tex. App.-Texarkana 2005, no pet.) (holding that courts "are to construe a party's pleadings liberally rather than limit the function of those pleadings according to the mere titles they are given").<br /><br />5. See Tex. R. App. P. 52.10.<br /><br />6. Relator was indicted for the following offenses: first degree felony theft, attempted theft, tampering with governmental records, perjury, and abuse of official capacity. See Tex. Penal Code Ann.<br />§§ 15.01(a), 31.03(e)(7), 31.03(e)(4), 37.02, 37.10, 39.02 (Vernon 2003 & Supp. 2006).<br /><br />7. We notified respondent and Garza that they had the right to representation by counsel at this hearing if they so desired. We ordered the relator, respondent, and Garza to file any affidavits necessary to support any facts upon which they planned to rely at the hearing to prove, deny, or excuse the alleged contempt. We further ordered that any other party to this proceeding should also file any affidavits necessary to show any relevant facts by this same date. The proceedings were recorded by a certified court reporter.<br /><br />8.<br />If any of the issues raised in this original proceeding have been presented to Judge Bañales for him to act upon as a threshold matter, the appellate record is entirely silent in that regard. The record does show, however, that Judge Bañales declined to void the January 17 order upon recusing respondent. We believe that his refusal to do so was appropriate. See Rio Grande Valley Gas Co. v. City of Pharr, 962 S.W.2d 631, 637-38 (Tex. App.-Corpus Christi 1997, pet. dism'd w.o.j.).<br /><br />9. For purposes of organization, relator's issues have been reordered and will be referred to numerically as herein sequenced.<br /><br />10. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988).<br /><br />11. See id.<br /><br />12. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863, 863 (1943).<br /><br />13. Tex. R. Civ. P. 7.2(b).<br /><br />14. Id.<br /><br />15. See id. 7.2(a).<br /><br />16. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).<br /><br />17. Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986) (orig. proceeding).<br /><br />18. Walker, 827 S.W.2d at 839.<br /><br />19. Id.<br /><br />20. Id.<br /><br />21. Id.<br /><br />22. Id.<br /><br />23. Id.<br /><br />24. Id.<br /><br />25. Huie v. DeShazo, 922 S.W.2d 920, 928 (Tex. 1996) (orig. proceeding).<br /><br />26. Id.<br /><br />27. See Walker, 827 S.W.2d at 840.<br /><br />28. Id.<br /><br />29. Id.<br /><br />30. Id.<br /><br />31. See CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996); Walker, 827 S.W.2d at 842.<br /><br />32. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990).<br /><br />33. See Tex. Code Crim. Proc. Ann.<br />art. 2.01 (Vernon 2005) ("Each district attorney shall represent the State in all criminal cases in the district courts in his district . . . ."); id. 20.03 ("The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment . . . ."); id. 20.04 ("The attorney representing the State may examine the witnesses before the grand jury and shall advise as to the proper mode of interrogating them."); id. 20.20 ("The attorney representing the State shall prepare all indictments . . . .").<br /><br />34. See Terrell v. Greene, 88 Tex. 539, 31 S.W. 631, 635 (1895) ("In the case of public officers the general rule is, that where a person holds an uncontested title to an office, mandamus may be issued to put him in possession; or where he has an undisputed right to exercise the functions of an office, and having actual and undisputed possession, he is illegally ousted or suspended from the performance of its duties, he may be restored to his rights as such officer by a writ of mandamus."); see also State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex. Crim. App. 1994) (mandamus remedy was available to district attorney to vacate district judge's order prohibiting two assistant attorneys general from serving as assistant district attorneys; no other legal mechanism short of mandamus would have allowed district attorney to challenge trial court's order and district attorney had clear legal right to have district judge vacate the order); State ex rel. Eidson, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990) (mandamus relief was available to challenge order removing district attorney from case). The intermediate appellate courts have likewise exercised mandamus jurisdiction over such situations. See In re State ex rel. Rodriguez, 166 S.W.3d 894, 897 (Tex. App.-El Paso 2005, orig. proceeding) ("[I]t has long been the law in Texas that mandamus relief is available to restore the rights of office to an official who has been illegally ousted or suspended from the performance of his duties . . . mandamus relief has been available to prosecutors who have been prohibited from representing the State in criminal cases."); see also In re Reed, 137 S.W.3d 676, 677 (Tex. App.-San Antonio 2004, orig. proceeding) (conditionally granting mandamus relief where district attorney sought to vacate an order recusing the district attorney's office from prosecuting a case); see also State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 469-70 (Tex. App.-San Antonio 1994, orig. proceeding) (conditionally granting mandamus relief where district attorney sought to vacate an order recusing the entire district attorney's office). Cf. In re Goodman, 210 S.W.3d 805, 807 (Tex. App.-Texarkana 2006, orig. proceeding) (conditionally granting mandamus relief requiring disqualification of a county attorney).<br /><br />35. Tex. Const. art. XV, § 7.<br /><br />36. Meyer v. Tunks, 360 S.W.2d 518, 520 (Tex. 1962).<br /><br />37. See id.<br /><br />38. Tex. Loc. Gov't Code Ann. §§ 87.012-.013 (Vernon 1999).<br /><br />39. Id. at § 87.015(a).<br /><br />40. Id. at § 87.015(b).<br /><br />41. Id. at § 87.015(c).<br /><br />42. Id. at § 87.016(a).<br /><br />43. Id. at § 87.016(c).<br /><br />44. Id.<br /><br />45. Id. at § 87.016(d).<br /><br />46. Id. at § 87.017(a).<br /><br />47. Id. at § 87.018(a).<br /><br />48. Id. at § 87.018(f).<br /><br />49. E.g., relator may be removed from office as a result of being convicted of a charge emanating from the indictments drafted by Garza. See Tex. Loc. Gov't Code Ann. § 87.031 (Vernon 1999).<br /><br />50. One could arguably assert that, under a strained interpretation of the court of criminal appeals' opinion in Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990), the order's removal of respondent from a criminal investigation, albeit one directed at himself, is analogous to a removal from office. Id. at 4-5. We note, however, that Eidson was a plurality opinion. While four justices endorsed the proposition that removal of a district attorney from a particular case is tantamount to removing the district attorney from his elected office, five justices explicitly rejected this proposition in their concurring and dissenting opinions. Accordingly, the aforementioned proposition is of limited or no precedential value, although we may look to plurality opinions for their persuasive value. Compare Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (holding a plurality opinion has limited or no precedential value); Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992) (noting that a plurality opinion does not have "significant precedential value"); with State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997) ("we may look to 'plurality' opinions for their persuasive value").<br /><br />51. Tex. Loc. Gov't Code Ann. § 87.031(a) (Vernon 1999).<br /><br />52. Id. at § 87.031(b) ("The court rendering judgment in such a case shall include an order removing the officer in the judgment.").<br /><br />53. Meyer, 360 S.W.2d at 520 (emphasis added).<br /><br />54. "'The attorney representing the State' means the Attorney General, district attorney, criminal district attorney, or county attorney." Tex. Code Crim. Proc. Ann.<br />art. 20.03 (Vernon 2005).<br /><br />55. The Legislature has enacted several provisions in the code of criminal procedure dealing with the office of district attorney and its interactions with the grand jury process. Under some of these provisions, a district attorney (1) "is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same," (2) "may examine the witnesses before the grand jury and . . . advise as to the proper mode of interrogating them," and (3) "shall prepare all indictments which have been found, with as little delay as possible, and deliver them to the foreman." Tex. Code Crim. Proc. Ann.<br />arts. 20.03, 20.04, 20.20 (Vernon 2005). Additional provisions permit the district attorney to participate further at the grand jury's discretion. Under these provisions, (1) a "grand jury may send for the attorney representing the state and ask his advice upon any matter of law or upon any question arising respecting the proper discharge of their duties," (2) the district attorney may issue a summons or attachment for any witness in the county; and (3) the district attorney may cause a subpoena or attachment to be issued on a witness who may provide material testimony. Id. at arts. 20.05, 20.10, 20.11.<br /><br />56. See infra note 62. The Colorado Supreme Court, in addressing the notion of a district attorney assisting a grand jury that is charged with the duty of investigating his office, has stated:<br /><br /><br />The district attorney is the legal adviser of the grand jury; it is his duty to appear before and advise them from the evidence what charges to make; what testimony is material, relevant and sufficient, and what is not; and if, prior to his presentment, no one can be substituted in his place and stead to manage an investigation in which, from the charge of the court, he is directly or indirectly implicated, it would be within his power to thwart the administration of justice by preventing the preliminary steps being taken necessary to the finding of an indictment.<br /><br /><br />People ex. rel. Lindsley v. Dist. Court, 66 P. 896, 898 (Colo. 1901). In light of the statutory provisions outlined in the previous footnote, we believe the concerns raised by the Colorado Supreme Court in Lindsley are of equal import in this state.<br /><br />57. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 426 (Tex. Crim. App. 1990).<br /><br />58. Tex. Loc. Gov't Code Ann. § 87.016 (Vernon 1999).<br /><br />59. Whittington v. State, 680 S.W.2d 505, 512 (Tex. App.-Tyler 1984, pet. ref'd).<br /><br />60. Tex. Loc. Gov't Code Ann. § 87.015 (Vernon 1999).<br /><br />61. Article 20.09 of the code of criminal procedure states that a "grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person." Tex. Code Crim. Proc. Ann.<br />art. 20.09 (Vernon 2005) (emphasis added). Nothing in this article suggests that a grand jury is precluded from inquiring into a district attorney's criminal conduct, nor does it suggest that an evidentiary bar must be satisfied in order for an inquiry to commence.<br /><br />62. See Tex. Code Crim. Proc. Ann.<br />art. 20.011 (Vernon 2005).<br /><br />63. Id. at<br />§ 20.04.<br /><br />64. Id. at<br />§ 20.06.<br /><br />65. Id. at<br />§ 20.02.<br /><br />66. See generally id. at<br />§ 19.07 (stating that a district judge may extend a grand jury's term for up to ninety days to allow the grand jury to complete an ongoing investigation that was initiated during its original term); Flournoy, et al. v. State, 187 S.W.3d 621, 624 (Tex. App.-Houston [14th Dist.] 2006, no pet.).<br /><br />67. State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, J., concurring).<br /><br />68. Id.<br /><br />69. This Court's ability to decipher an order's intent should not minimize the importance of a trial court carefully wording the order appointing an attorney pro tem and the constitutional oath, so as to distinguish between an "attorney pro tem" and a "special prosecutor." See Stephens v. State, 978 S.W.2d 728, 731 (Tex. App.-Austin 1998, pet. ref'd).<br /><br />70. See Tex. Code Crim. Proc. Ann.<br />art. 2.07(a) (Vernon 2005).<br /><br />71. Id. at art. 2.07(b-1).<br /><br />72. Eidson, 793 S.W.2d at 6. This holding has been followed by numerous courts of appeals. See, e.g., Gonzalez v. State, 115 S.W.3d 278, 286 (Tex. App.-Corpus Christi 2003, pet. ref'd); Fluellen v. State, 104 S.W.3d 152, 161 (Tex. App.-Texarkana 2003, no pet.).<br /><br />73. See In re Goodman, 210 S.W.3d 805, 815 (Tex. App.-Texarkana 2006, orig. proceeding); State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 470 (Tex. App.-San Antonio 1994, no pet.).<br /><br />74. See Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005) ("A prosecutor's refusal to recuse himself from a case cannot be corrected because the trial court has no authority to force a recusal.").<br /><br />75. Hill, 887 S.W.2d at 927.<br /><br />76. Tex. Code Crim. Proc. Ann.<br />art. 2.01 (Vernon 2005).<br /><br />77. Hill, 887 S.W.2d at 927.<br /><br />78. Tex. Code Crim. Proc. Ann.<br />art. 2.01 (Vernon 2005).<br /><br />79. Eidson, 793 S.W.2d at 6 (citations omitted).<br /><br />80. Id.<br /><br />81. See generally Northcutt v. Howard, 130 S.W.2d 70 (Ky. 1939).<br /><br />82. Id. at 71.<br /><br />83. Id. at 71-72 (emphasis added).<br /><br />84. See generally Commonwealth v. McHale, 97 Pa. 397 (1881).<br /><br />85. Id. at 406.<br /><br />86. Id. (emphasis added).<br /><br />87. Lattimore v. Vernor, 288 P. 463 (Okla. 1930).<br /><br />88. Id. at 463.<br /><br />89. Id. at 464.<br /><br />90. Id. Section 5745 of the Oklahoma statutes provided that: "The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose." See Okla. Comp. Stat. § 5745 (1921), as discussed in Lattimore.<br /><br />91. Id.<br /><br />92. Weems v. Anderson, 516 S.W.2d 895, 898 (Ark. 1974). In Weems, the supreme court stated:<br /><br /><br />Since prosecuting attorneys and other State officials may be indicted and tried for alleged criminal activities whether there is an impeachment or not, there must be some way within the framework of our State's legal system for the prosecuting attorney to be indicted and tried even when the alleged crime occurs within the same judicial district in which he is elected the prosecuting attorney. . . .<br /><br /><br />. . . .<br /><br /><br />The absence of specific statutory authority for the appointment of a special prosecuting attorney under the circumstances of this case does not mean that the court is without authority to do what justice, reason and common sense dictate must be done. In other jurisdictions where there was the same lack of statutory authority for the appointment of a special prosecuting attorney under circumstances such as those here presented, the courts have held that there is an inherent power in the courts to make such an appointment. We hold that the Arkansas Circuit Courts also have such inherent power.<br /><br /><br />Id.<br /><br />93. State ex rel. Thomas v. Henderson, 175 N.E. 865, 866-67 (Ohio 1931) (recognizing the inherent power of a court--despite "[t]here being no definite specific statutory provision for a finding of the temporary disqualification of the prosecuting attorney,"--to appoint an attorney to assist a grand jury "by reason of the prosecutor himself being under investigation," thus making "it impossible that either he or any assistant under his direction should act").<br /><br />94. Lindsley, 66 P. at 898-99. The Colorado Supreme Court stated:<br /><br /><br />If, from any source which he deems sufficiently reliable to prompt him to act, the judge obtains information implicating the district attorney in any alleged offense which he has called to the attention of the grand jury, and acting on such information, directs that body to investigate the district attorney with respect to such offense, such action ipso facto disqualifies the district attorney from acting in such matters; and the judge so doing, charged as he is with the responsibility of not knowingly permitting the channels of justice to become obstructed, has the undoubted authority, and it would be his bounden duty, to appoint an attorney to act in the place and stead of the district attorney with respect to such matters. The district court has the inherent power to protect itself, and direct investigations in a manner which will render them thorough and impartial. Reason dictates and simple justice demands that no official or individual can take part in an investigation before a grand jury the result of which may affect him, either directly or indirectly.<br /><br /><br />Id. (citations omitted).<br /><br />95. State ex rel. Spencer v. Criminal Court of Marion County, 15 N.E.2d 1020, 1022 (Ind. 1938) (discussing a court's inherent power and noting that "[i]t cannot be doubted that, where it is established that the prosecuting attorney is an interested party . . . the court may appoint an attorney to represent the interests of the state").<br /><br />96. Sloane v. Hammond, 254 P. 648, 655 (Cal. Ct. App. 1927). The California court of appeals stated:<br /><br /><br />The law is well settled, upon just considerations of public policy, as we have seen, that courts possess the inherent power to name special counsel to act in the place of disqualified public prosecutors. . . . Several of the cases to which we have pointed above are to the effect that the inherent power of the courts to appoint exists irrespective or independent of statute. . . . It cannot be questioned that it is the duty of the legislature to enact laws under which district attorneys shall be elected or appointed, and to make it the general duty of the law-making body to provide for an adequate prosecution of those cases in which district attorneys themselves are charged with crime, or in which those regular prosecutors are disqualified for some other reason.<br /><br /><br />Id.<br /><br />97. State v. Gonzales, 26 Tex. 197, 199, 1862 Tex. LEXIS 6, *3-*4 (1862) (emphasis added).<br /><br />98. Tex. Code Crim. Proc. Ann.<br />art. 2.07 (Vernon 2005).<br /><br />99. We observe that while a judge--when faced with a situation resembling respondent's--may be obligated to appoint an attorney pro tem to assist the grand jury's investigation, the judge is in no way a slave to that investigation. As noted by the court of criminal appeals in Ex Parte Edone:<br /><br /><br />the court also exerts some "control" or supervision over the grand jury under [article 20.15 of the code of criminal procedure]. The court decides if the question propounded before the grand jury is proper, and, thus, decides whether or not to aid the investigation of the grand jury by then compelling an answer. Without the action of the court the grand jury is powerless to enforce its investigative duty to gain testimony from a witness and decide on the presentment of an indictment. In this sense, the court acts independently and in a supervisory role (deciding whether to compel an answer) . . . .<br /><br /><br />Ex Parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987).<br /><br />100. Tex. Code Crim. Proc. Ann.<br />art. 2.07(a), (b-1) (Vernon 2005).<br /><br />101. State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991).<br /><br />102. Id. at 612 (footnotes omitted) (emphasis added).<br /><br />103. See Tex. Code Crim. Proc. Ann.<br />art. 20.09 (Vernon 2005); Op. Tex. Att'y Gen. No. M-1171 at *4 (1972).<br /><br />104. State ex rel. Matko v. Ziegler, 179 S.E.2d 735 (W. Va. 1971), overruled on other grounds by Smoot v. Dingess, 236 S.E.2d 468, 472 (W. Va. 1977).<br /><br />105. Id. at 737-38.<br /><br />106. Id. at 742 (emphasis added).<br /><br />107. Id.<br /><br />108. State ex rel. Preissler v. Dostert, 260 S.E.2d 279, 286-87 (W. Va. 1979).<br /><br />109. Id. at 281.<br /><br />110. Id. at 285.<br /><br />111. Id. at 285 n.8.<br /><br />112. Id. at 285.<br /><br />113. Id. at 286-87.<br /><br />114. Id. at 287.<br /><br />115. State ex rel. Ilvedson v. District Court, 291 N.W. 620 (N.D. 1940).<br /><br />116. Id. at 622.<br /><br />117. Id.<br /><br />118. Id.<br /><br />119. Id. at 623-24.<br /><br />120. Id. at 627 (citations omitted).<br /><br />121. Lattimore, 288 P. at 464-65.<br /><br />122. State ex rel. Thomas, 175 N.E. at 867.<br /><br />123. State ex rel. Preissler, 260 S.E.2d at 287; State ex rel. Ilvedson, 291 N.W. at 622.<br /><br />124. Preissler, 260 S.E.2d at 287.<br /><br />125. See Holmes, 784 S.W.2d at 426 ("There is no provision requiring or even allowing a magistrate to restrict the process by which a legally constituted grand jury considers cases . . . .").<br /><br />126. Supra note 68.<br /><br />127. Preissler, 260 S.E.2d at 286.<br /><br />128. State ex rel. Brown v. Merrifield, 389 S.E.2d 484, 486 (W. Va. 1990) (first emphasis in original, second emphasis added).<br /><br />129. Preissler, 260 S.E.2d at 285.<br /><br />130. See Tex. Const. art. V, § 24.<br /><br />131. Hill, 887 S.W.2d at 927.<br /><br />132. Tex. Code Crim. Proc. Ann.<br />art. 2.07(b-1) (Vernon 2005).<br /><br />133. We note that affording a right to notice and a hearing benefits not only the district attorney, but the public as well:<br /><br /><br />[T]he prosecuting attorney is elected by the people of the county to represent them in prosecutions against criminal offenders. Consequently, the public has a right to know why the attorney they have selected to represent them and whose salary they pay with their taxes, is unfit to prosecute a given case. . . . The court must provide every safeguard to insure the public that the business of the State is being properly conducted. A hearing on the record provides the public with an accurate record of the actions of their elected officials, upon which they may evaluate his performance.<br /><br /><br />Preissler, 260 S.E.2d at 287.<br /><br />134. Griner v. Thomas, 101 Tex. 36, 104 S.W. 1058, 1058 (1907).<br /><br />135. Id. at 1060.<br /><br />136. Id.<br /><br />137. Tex. Loc. Gov't Code Ann. § 87.017(a) (Vernon 1999).<br /><br />138. Id.<br /><br />139. Id. at § 87.017(b).<br /><br />140. The idea that an office is accepted cum onere was also reflected in Trigg v. State, 49 Tex. 645, 669 (1878). Trigg, an elected county attorney, appealed to the supreme court after he was removed from office upon being found guilty of habitual drunkenness and official misconduct. In discussing the constitutionality of Trigg's removal, the supreme court commented:<br /><br /><br />The office being elective, the qualified voters of the county have, by his election, declared in favor of his fitness for the office in those respects; but the people of the whole State have declared, by this provision of the Constitution, that he is disqualified from holding the office, notwithstanding his election, if he is found, by the means thus provided, to be guilty of habitual drunkeness. His right to the franchise is thus made subject to that limitation; and the term of his office is thus subjected to a shorter period than the two years for which he was elected. He received the office subject to its being terminated, and his place being filled by another person, in the mode pointed out by the Constitution.<br /><br /><br />Id. While implicit in Trigg and Griner, the supreme court did explicitly express this idea in Sparks v. State, 42 Tex. Crim. 374, 60 S.W. 246, 247 (1900) ("The sheriff, when he undertook the duties of the office, assumed them voluntarily and cum onere.").<br /><br />141. Preissler, 260 S.E.2d at 286.<br /><br />142. See Holmes, 784 S.W.2d at 426 ("There is no provision requiring or even allowing a magistrate to restrict the process by which a legally constituted grand jury considers cases . . . .").<br /><br />143. See Tex. Code Crim. Proc. Ann.<br />art. 20.10 (Vernon 2005) (stating that the grand jury foreman may issue a summons for any witness in the county, requiring the witness to appear).<br /><br />144. See Rogers v. State, 774 S.W.2d 247, 262 (Tex. Crim. App. 1989), overruled on other grounds by Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003) (stating that "the law does not entitle the subject of a criminal investigation to appear personally or by legal counsel before the grand jury conducting such investigation").<br /><br />145. In United States v. Proctor & Gamble Co., 356 U.S. 677 (1958), the United States Supreme Court listed the following reasons for grand jury secrecy:<br /><br /><br />(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.<br /><br /><br />Id. at 681 n.6.<br /><br />146. We acknowledge that there is debate among the parties as to whether relator is actually being denied the return of the items seized. Garza asserts that attempts have been made to returns items to relator, but that he has refused to accept the items.<br /><br />147. Poe v. State, 72 Tex. 625, 10 S.W. 737 (1889).<br /><br />148. Id. at 738.<br /><br />149. Id. at 738-39.<br /><br />150. Id. at 740.<br /><br />151. Shea v. State, 167 S.W.3d 98, 101-02 (Tex. App.-Waco 2005, pet. ref'd); cf. Loshe v. State, 160 Tex. Crim. 561, 566, 272 S.W.2d 517, 520 (1954) (op. on reh'g) (applying abuse of discretion standard to review appearance of "volunteer" special prosecutor).<br /><br />152. Tex. Code Crim. Proc. Ann.<br />art. 2.07(a) (Vernon 2005) (emphasis added).<br /><br />153. See Shea v. State, 167 S.W.3d 98, 101 (Tex. App.-Waco 2005, pet. ref'd).<br /><br />154. Tex. Code Crim. Proc. Ann.<br />art. 2.07(a) (Vernon 2005).<br /><br />155. See Shea, 167 S.W.3d at 101.<br /><br />156. Id.<br /><br />157. Id.<br /><br />158. Id. at 102.<br /><br />159. U.S. Const. amend. VI.<br /><br />160. Tex. Tax Code Ann.<br />§ 6.30(c) (Vernon 2001) ("The governing body of a taxing unit may contract with any competent attorney to represent the unit to enforce the collection of delinquent taxes.") (emphasis added).<br /><br />161. Tex. R. Govern. Bar Adm'n XIII(b)(2)(D) (2006) (West 2007) ("[A] foreign nation attorney who has not completed the law study under these Rules is eligible for an exemption from the law study requirement . . . if the attorney demonstrates to the Board that the law of such foreign nation is sufficiently comparable to the law of Texas that, in the judgment of the Board, it enables the foreign attorney to become a competent attorney in Texas without additional formal legal education . . . .") (emphasis added).<br /><br />162. See, e.g., Scarborough, 54 S.W.3d at 424-25<br /><br />163. See Young v. U.S. ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 804 (1987); Crowe v. Smith, 151 F.3d 217, 227 (5th Cir. 1998); Pirtle, 887 S.W.2d at 944 (dissenting opinion by Baird, J.).<br /><br />164. Op. Tex. Att'y Gen. No. GA-0241 (2004).<br /><br />165. Tex. Code Crim. Proc. Ann.<br />art. 2.08 (Vernon 2005) ("District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State.").<br /><br />166. Ex parte Ramsey, 642 S.W.2d 483, 484 (Tex. Crim. App. 1982).<br /><br />167. Op. Tex. Att'y Gen. No. GA-0241 at *10-11 (2004) (citations omitted).<br /><br />168. Tex. Code Crim. Proc. Ann.<br />art. 2.07(a) (Vernon 2005) (emphasis added).<br /><br />169. "The relator must establish that the trial court could reasonably have reached only one decision. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable." Walker, 827 S.W.2d at 839 (citations omitted).<br /><br />170. Hill, 887 S.W.2d at 930.<br /><br />171. Id.<br /><br />172. We would note that the 1992 election for Willacy County Attorney, wherein Garza and Guerra were opponents, resulted in an election contest which was appealed to this Court. See Guerra v. Garza, 865 S.W.2d 573 (Tex. App.-Corpus Christi 1993, writ dism'd w.o.j.). In that case, Guerra, the Democratic Party nominee, sued Garza, a write-in candidate, contesting the canvass results of the general election which declared Garza the winner. See id. at 574. Guerra alleged that Garza and his workers conspired to obtain votes and defraud the voters of Willacy County by committing multiple violations of the Texas Election Code. See id. After a bench trial, the trial court denied Guerra's contest and declared Garza the winner. Id. This Court reversed the judgment and remanded the case to the trial court with instructions to open the ballot boxes and recount the ballots in a manner consistent with our opinion. See id. at 579.<br /><br />173. Garza himself acknowledged the potential for an appearance of impropriety in his service as an attorney pro tem in the instant case. Accordingly, Garza associated an assistant attorney pro tem to prosecute the trial of any case against relator and planned not to participate in the trial himself.<br /><br />174. Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (conviction violated fundamental fairness assured by due process clause when part-time commonwealth attorney suffered impermissible conflict of interest by prosecuting defendant for criminal assault while simultaneously representing defendant's wife in divorce action).<br /><br />175. Pirtle, 887 S.W.2d at 927; Eidson, 793 S.W.2d at 6; Goodman, 210 S.W.3d at 808; Fluellen v. State, 104 S.W.3d 152, 161 (Tex. App.-Texarkana 2003, no pet.).<br /><br />176. Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 24-25 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).<br /><br />177. See Hill, 887 S.W.2d at 927; Reed, 503 S.W.2d at 776; Canady v. State, 100 S.W.3d 28, 32 (Tex. App.-Waco 2002, no pet.).<br /><br />178. See Spears v. Fourth Court of Appeals, 797 S.W.2d at 656; State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 472 (Tex. App.-San Antonio 1994, no pet.).<br /><br />179. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807-08 and n. 18 (1987); Polo Fashions v. Stock Buyers Intern., 760 F.2d 698, 705 (6th Cir. 1985); New Jersey v. Imperiale, 773 F. Supp. 747, 750 (D.N.J. 1991).<br /><br />180. Young, 481 U.S. at 807 n.18.<br /><br />181. Dick v. Scroggy, 882 F.2d 192, 196 (6th Cir. 1989).<br /><br />182. Id., Wright v. United States, 732 F.2d 1048, 1055 (2d Cir. 1984); Azzone v. United States, 341 F.2d 417, 419 (8th Cir. 1965).<br /><br />183. See Hanley v. State, 921 S.W.2d 904, 909-10 (Tex. App.-Waco 1996, pet. ref'd) (holding that the defendant could not disqualify the district attorney on the grounds that the prosecutor had a "prejudice" and "predisposition" against him without proving that his allegations rose to the level of a due process violation); Offermann v. State, 742 S.W.2d 875, 876 (Tex. App.-San Antonio, 1987, no writ) (holding that defendant could not disqualify the district attorney on the grounds that the prosecutor harbored a "personal grudge" against him because defendant failed to establish any harm as a result of the alleged "grudge").<br /><br />184. Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005).<br /><br />185.<br />See, e.g., Ganger v. Peyton, 379 F.2d 709, 712-13 (4th Cir. 1967).<br /><br />186.<br />See, e.g., Goodman, 210 S.W.3d at 810.<br /><br />187. See Commonwealth v. Balenger, 704 A.2d 1385, 1386 (Pa. Super. 1997) (granting a new trial where the prosecutor was involved in a romantic relationship with the defendant's wife), appeal denied 727 A.2d 126 (Pa. 1998).<br /><br />188. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 36 (Tex. 2000); Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 84 (Tex. App.-Dallas) ("The enforcement of this remedy is the essence of the statute and promotes compliance with the provisions of the Code, especially those that proscribe certain acts as being unlawful."), aff'd in part and rev'd in part on other grounds, 801 S.W.2d 880 (Tex. 1990).<br /><br />189. Tex. Disciplinary R. Prof'l Conduct 3.08; Gonzalez v. State, 117 S.W.3d 831, 838 (Tex. Crim. App. 2003); House v. State, 947 S.W.2d 251, 252-53 (Tex. Crim. App. 1997). Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct provides, in part:<br /><br /><br />(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless:<br /><br /><br />(1) the testimony relates to an uncontested issue;<br /><br /><br />(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;<br /><br /><br />(3) the testimony relates to the nature and value of legal services rendered in the case;<br /><br /><br />(4) the lawyer is a party to the action and is appearing pro se; or<br /><br /><br />(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.<br /><br /><br />(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.<br /><br />190. Gonzalez, 117 S.W.3d at 838.<br /><br />191. Id.; House , 947 S.W.2d at 252; Brown v. State, 921 S.W.2d 227 (Tex. Crim. App. 1996).<br /><br />192. Gonzalez, 117 S.W.3d at 838.<br /><br />193. See id.<br /><br />194. See id. at 844.<br /><br />195.<br />See id.<br /><br />196.<br />Id.<br /><br />197. See Tex. Disciplinary R. Prof'l Conduct 3.08, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9); see Powers v. State, 165 S.W.3d 357, 358 (Tex. Crim. App. 2005) ("an ethics rule may be relied upon to show that an alleged violation infringed the complaining party's right to a fair trial or otherwise affecting substantial rights;" however, "a complaining party's right is not grounded in the disciplinary rule itself.").<br /><br />198. The dissenting opinion contends that the competence or disqualification of Garza is a moot issue. The general rule is that a case becomes moot, and thus unreviewable, when it appears that one seeks to obtain relief on some alleged controversy when in reality none exists, or on some matter which, when granted, cannot have any practical legal effect on a then-existing controversy. See Tex. Dep't of Public Safety v. LaFleur, 32 S.W.3d 911, 913-14 (Tex. App.-Texarkana 2000, no pet.). We do not agree that this issue is moot.<br /><br /><br />We conclude that the "capable of repetition yet evading review" exception to the mootness doctrine applies because the challenged act, that is, the appointment of an attorney pro tem, is of such short duration that relator cannot obtain review before the issue becomes moot, and there is a reasonable expectation that the same action will occur again if the issue is not considered. See Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999).<br /><br /><br />We further conclude that the "public interest" exception to the mootness doctrine also applies. This is an issue of considerable public importance and the issue is capable of repetition between either the same parties or other members of the public. See Ngo v. Ngo, 133 S.W.3d 688, 692 (Tex. App.-Corpus Christi 2003, no pet.). The Texas Supreme Court has not yet recognized the public interest exception to the mootness doctrine and the intermediate appellate courts are not in unanimity regarding its availability, but this Court has specifically recognized this exception, as have several of our sister courts. Ngo, 133 S.W.3d at 692; see FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994) ("This Court has not previously decided the viability of the public interest exception, and we find it unnecessary to reach that issue here."); Houston Chronicle Pub. Co. v. Thomas, 196 S.W.3d 396, 399-400 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (noting split among courts regarding availability of the public interest exception); State ex rel. Cockerham v. Cockerham, 218 S.W.3d 298, 302 (Tex. App.-Texarkana 2007, no pet.) (recognizing public interest exception to the mootness doctrine); In re Guardianship of Keller, 171 S.W.3d 498, 501 (Tex. App.-Waco 2005), rev'd on other grounds, Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (same); Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 810-11 (Tex. App.-Texarkana 2003, pet. denied) (same); Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.-Austin 1993, no pet.) (same).<br /><br /><br />Finally, we would note that, on September 11, 2007, relator filed a "motion for contempt and/or motion for mandamus and/or equitable relief or in the alternative, motion for stay," supported by affidavit, in which he contends that respondent and Garza have been meeting privately with a new grand jury in relator's absence and he "is concerned that without this Court of Appeals' intervention, with this new grand jury, under the direction of [respondent] and the illegal participation of . . . Garza, Relator will once again find himself being investigated, indicted and arrested." Accordingly, based on the record as a whole and this recent motion, we conclude that the issues herein are vital and continuing in nature.<br /><br />199. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).<br /><br />200. Id.<br /><br />201. Id.<br /><br />202. Motions for contempt are typically verified; however, an unverified motion is acceptable unless a relevant statute provides otherwise. See, e.g., Ex parte Winfree, 263 S.W.2d 154, 156-58 (Tex. 1953) (verification not jurisdictional); see also Ex parte Hall, 611 S.W.2d 459, 460 (Tex. Civ. App.-Dallas 1980, orig. proceeding) (instituting contempt proceeding on unsworn complaint does not violate due process).<br /><br />203. In re Reed, 901 S.W.2d 604, 608 (Tex. App.-San Antonio 1995, orig. proceeding).<br /><br />204. The court of appeals has the authority to conduct its own evidentiary hearing on a contempt allegation or it may refer the matter of taking testimony and hearing evidence to a district court. In re Reed, 901 S.W.2d at 610 (citing Ex parte Werblud, 536 S.W.2d 542, 544-45 (Tex. 1976)). The supreme court prefers the latter course of action. Id. In this case, however, because the alleged contemnor is a sitting judge, there is no obviously appropriate district court to whom the case could have been referred. See id.<br /><br />205. The grand jury foreperson testified that the grand jury decided, on its own initiative, to meet at the Willacy County Sheriff's Office in the evening of March 21, 2007. On this day, the foreperson contacted the official court reporter for the 197th Judicial District Court and arranged for the reporter to meet the grand jury at the sheriff's office. According to the foreperson, only the court reporter and the twelve grand jurors were present while proceedings were being conducted by the grand jury; these proceedings were under the sole direction of the foreperson and the assistant foreperson.<br /><br />206. Because due process forbids the assessment of punishment for acts not brought to the alleged contemnor's attention before the hearing, this Court's contempt inquiry is limited to the sole allegation raised in relator's motion for contempt. Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996); Ex parte Parr, 505 S.W.2d 242, 245-46 (Tex. 1974).<br /><br />207. Tex. R. App. P. 52.11.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-4637432816008127789?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-24645791711154490752008-01-25T01:13:00.000-08:002008-01-25T01:15:38.515-08:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br />TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION<br />CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE<br />FastLaws™ Home<br />Penal Code Table of Contents<br />Chapter 36 Table of Contents<br />prior provision<br />next provision<br />Sec. 36.08. Gift to Public Servant by Person Subject to his Jurisdiction.<br />(a) A public servant in an agency performing regulatory functions or conducting inspections or investigations commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be subject to regulation, inspection, or investigation by the public servant or his agency.<br />(b) A public servant in an agency having custody of prisoners commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be in his custody or the custody of his agency.<br />(c) A public servant in an agency carrying on civil or criminal litigation on behalf of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person against whom the public servant knows litigation is pending or contemplated by the public servant or his agency.<br />(d) A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any contract, purchase, payment, claim, or transaction involving the exercise of his discretion.<br />(e) A public servant who has judicial or administrative authority, who is employed by or in a tribunal having judicial or administrative authority, or who participates in the enforcement of the tribunal's decision, commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any matter before the public servant or tribunal.<br />(f) A member of the legislature, the governor, the lieutenant governor, or a person employed by a member of the legislature, the governor, the lieutenant governor, or an agency of the legislature commits an offense if he solicits, accepts, or agrees to accept any benefit from any person.<br />(g) A public servant who is a hearing examiner employed by an agency performing regulatory functions and who conducts hearings in contested cases commits an offense if the public servant solicits, accepts, or agrees to accept any benefit from any person who is appearing before the agency in a contested case, who is doing business with the agency, or who the public servant knows is interested in any matter before the public servant. The exception provided by Sec. 36.10(b) does not apply to a benefit under this subsection.<br />(h) An offense under this section is a Class A misdemeanor.<br />(i) A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under this section may donate the benefit to a governmental entity that has the authority to accept the gift or may donate the benefit to a recognized tax-exempt charitable organization formed for educational, religious, or scientific purposes.<br />Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 915, ch. 342, Sec. 11, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 3238, ch. 558, Sec. 5, eff. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 304, Sec. 4.04, eff. Jan. 1, 1992; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-2464579171115449075?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-2487455866172407642007-12-28T06:39:00.000-08:002007-12-28T06:41:57.230-08:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /> Send this document to a colleague Close This Window<br /><br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> NUMBER 13-04-552-CV<br /><br /> <br /><br /> COURT OF APPEALS<br /><br /> <br /><br /> THIRTEENTH DISTRICT OF TEXAS<br /><br /> <br /><br /> CORPUS CHRISTI - EDINBURG<br /><br />___________________________________________________________________<br /><br /> <br /><br />J.A.W.R., A CHILD, Appellant,<br /><br /> <br /><br /> v.<br /><br /> <br /><br />THE STATE OF TEXAS, Appellee.<br /><br />___________________________________________________________________<br /><br /> <br /><br /> On appeal from the County Court of Refugio County, Texas.<br /><br />__________________________________________________________________<br /><br /> <br /><br /> MEMORANDUM OPINION<br /><br /> <br /><br /> Before Chief Justice Valdez and Justices Hinojosa and Rodriguez<br /><br /> Memorandum Opinion by Justice Rodriguez<br /><br /> <br /><br />Appellant, J.A.W.R., a child, was found to have engaged in delinquent conduct[1] by committing the offense of endangering a child.[2] He was committed to the Texas Youth Commission for an indeterminate period of time not to exceed his twenty-first birthday. In his sole point of error, appellant argues that the trial court abused its discretion by ordering him committed to the Texas Youth Commission. We affirm. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.<br /><br />I. STANDARD OF REVIEW<br /><br />A juvenile judge has broad discretion to determine the proper disposition of a child who has been adjudicated as engaging in delinquent behavior. In re K.J.N., 103 S.W.3d 465, 465-66 (Tex. App.BSan Antonio 2003, no pet.). Absent an abuse of discretion, we will not disturb the trial court=s determination. Id. An abuse of discretion occurs when the trial court acts unreasonably or arbitrarily and without reference to guiding rules and principles. Id. The guiding rules and principles in juvenile cases involving commitment outside the child=s home are found in the Texas Family Code. Id.; see Tex. Fam. Code Ann. ' 54.04 (Vernon Supp. 2004-05).<br /><br />The family code permits a trial judge to commit a child to the Texas Youth Commission if: (1) it is in the child=s best interest to be placed outside the home; (2) reasonable efforts have been taken to prevent or eliminate the need for the child=s removal from the home; and (3) while in the home, the child cannot receive the quality of care and level of support and supervision needed to meet the conditions of probation. Tex. Fam. Code Ann. ' 54.04(i).<br /><br /> <br /><br />II. ANALYSIS<br /><br />By his sole point of error, appellant argues that the trial court abused its discretion by ordering appellant committed to the Texas Youth Commission. Specifically, appellant argues that there is no evidence to support the trial court=s finding that Athe child, in the child=s home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.@[3] We disagree. <br /><br />At the disposition hearing the State offered into evidence the Predisposition and Social History report prepared by the juvenile department. The recommendation in the report was that appellant be placed outside the home due to his need for more structure and discipline than was being provided by his parents. The report stated that appellant had been unsuccessful on a six-month deferred adjudication and unsuccessful on the subsequent court-ordered probation. Appellant was also unsuccessful on a second court-ordered probation on another cause. He was exhibiting serious signs of mental and emotional instability as well as more serious behavioral problems than in the past. The report also stated that appellant had failed to graduate to the eleventh grade because he did not complete his makeup work or his absences. Appellant had been referred for truancy. <br /><br />Under the record in this case, we find that the trial court did not err in determining that appellant, in his home, cannot be provided the quality of care and level of support and supervision that he needs to meet the conditions of probation. We therefore conclude that the trial court did not abuse its discretion in committing appellant to the Texas Youth Commission. Appellant=s sole point of error is overruled.<br /><br />III. CONCLUSION<br /><br />Accordingly, we affirm the order of the trial court.<br /><br /> <br /><br />NELDA V. RODRIGUEZ<br /><br />Justice<br /><br /> <br /><br />Memorandum Opinion delivered and<br /><br />filed this 7th day of July, 2005.<br /><br /> <br /><br />[1] See Tex. Fam. Code Ann. ' 51.03 (Vernon Supp. 2004-05).<br /><br />[2] See Tex. Pen. Code Ann. ' 22.041(c) (Vernon 2003).<br /><br />[3] Appellant also argues that the trial court erred in making the following findings: (1) that no community-based intermediate sanction is available to adequately address the needs of the juvenile or to adequately protect the needs of the community; and (2) that the gravity of the offense requires that the juvenile be confined to a secure facility. However, these findings made by the trial court are not required by statute in order to commit a juvenile to the Texas Youth Commission. See Tex. Fam. Code Ann. ' 54.04(i) (Vernon Supp. 2004-05). Therefore, we will not address these findings as our conclusion would not affect the disposition of this appeal.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-248745586617240764?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-90736748000172375972007-11-17T05:58:00.000-08:002007-11-17T06:04:19.577-08:00Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />NUMBER 13-06-00207-CV<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,<br /><br /><br />v.<br /><br /><br />JAY BRIDGES, Appellee.<br /><br />On appeal from the County Court at Law of<br /><br />San Patricio County Texas.<br /><br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Chief Justice Valdez and Justices Benavides and Vela<br /><br />Memorandum Opinion by Chief Justice Valdez<br /><br /><br />Jay Bridge's driver's license was suspended for failure to submit a breath specimen. Tex. Trans. Code Ann. § 724.015(2) (Vernon Supp. 2006). Bridges appealed the suspension to an administrative law judge ("ALJ"), who upheld the suspension. He then appealed to the county court at law. The county court at law reversed the ALJ's suspension decision.<br /><br />The Texas Department of Public Safety ("the Department") appeals from the county court at law's order reversing the ALJ's decision. By three issues, the Department contends that (1) the trial court lacked jurisdiction because Bridges's appeal was not timely filed; (2) by not objecting to the Department's evidence at the ALJ hearing, Bridges waived his right to complain to the trial court; and (3) the trial court erroneously applied the rules of criminal procedure regarding indictments to drivers license suspension cases. We reverse the judgment of the county court and reinstate the ALJ's decision.<br /><br />I. BACKGROUND<br /><br /><br />On September 4, 2005, Officer Baudencio Lee Cardenas stopped Bridges for running a stop sign. Upon approaching Bridges, Officer Cardenas detected a strong odor of alcohol and noticed Bridges had slurred speech and bloodshot eyes. Bridges refused to perform a field sobriety test and was arrested. When they arrived at the police station, Officer Cardenas asked Bridges for a breath specimen; Bridges refused to provide one. His driver's license was then suspended.<br /><br />Bridges contested his license suspension through an administrative hearing. At the hearing, Officer Cardenas's sworn report and Bridges's driving record were admitted into evidence without objection. The ALJ found the evidence sufficient to maintain the suspension of Bridges's driver's license; she signed and issued her decision on December 19, 2005. Bridges faxed his appeal of the ALJ's decision to the County Court of San Patricio County, Texas on January 18, 2006 at 6:32 p.m.<br /><br />Before the county court at law, the Department argued that Bridges's appeal was filed a day after the deadline because offices at the courthouse closed at 5:00 p.m. The deputy clerks file-marked the appeal as filed on January 19, 2006. The Department maintained that the court lacked jurisdiction to review the ALJ's decision due to the untimeliness of Bridges's appeal. The county court at law ruled that it had jurisdiction over the matter. After hearing arguments and reviewing the record, the county court at law ruled that the license suspension was not supported by substantial evidence and reversed the administrative decision. This appeal ensued.<br /><br />II. DISCUSSION<br /><br />A. Standard of Review<br /><br />The department's first issue presents a question of statutory interpretation. We review questions of statutory interpretation de novo. In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994).<br /><br />B. Applicable Law<br /><br />The right to an appeal in a license suspension proceeding does not exist in the absence of statutory authority because the entitlement to a driver's license is not a right, but a privilege. Tex. Dep't of Pub. Safety v. Benoit, 994 S.W.2d 212, 214 (Tex. App.-Corpus Christi 1999, pet. denied). When a statute creates a privilege or right not existing at common law and prescribes a remedy to enforce the right, the courts may act only in the manner provided in the statute which created the right. Bullock v. Amoco Prod. Co., 608 S.W.2d 899, 901 (Tex. 1980).<br /><br />The Department's first issue challenges the jurisdiction of the county court at law to hear Bridge's appeal based upon his failure to adhere to statutorily imposed deadlines. Transportation code section 524.041(a) provides that "[a] person whose driver's license suspension is sustained may appeal the decision by filing a petition not later than the 30th day after the date the administrative law judge's decision is final." Tex. Transp. Code Ann. § 524.041(a) (Vernon 2007). An ALJ's decision is final when issued and signed. Id. at § 524.035(e) (Vernon 2007).<br /><br />An appellant from an administrative hearing must abide by the procedural rules that the legislature has prescribed. See generally Benoit, 994 S.W.2d at 214. Benoit, like the instant case, involved an appeal from a driver's license suspension and a challenge to the trial court's jurisdiction. Id. In Benoit, the relevant portion of the statute required that, "[a] person who files an appeal under this section shall send a copy of the petition by certified mail to the department and to the State Office of Administrative Hearings at each agency's headquarters in Austin." Tex. Transp. Code Ann. § 524.041(c). In Benoit, the trial court appellants did not serve certified copies of their petitions to the office of state administrative hearings. (1) Moreover, they conceded in their briefs that they did not serve such copies. Benoit, 994 S.W.2d at 214. We held that the county court at law was without jurisdiction to entertain the appeal because the trial court appellants failed to follow the statutory requirements. Id.<br /><br />An instrument is deemed filed when it is placed in the custody or control of the clerk. Standard Fire Ins. Co v. LaCoke, 585 S.W.2d 678, 681 (Tex. 1979); see also Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993) (reaffirming the directive that a document is filed when it is tendered to the clerk or otherwise put under the custody or control of the clerk); Strawder v. Thomas, 846 S.W.2d 51, 58 (Tex.App.-Corpus Christi 1992, no pet.) (recognizing that an instrument is effective as filed when it has been received into the custody of the clerk of the court for filing).<br /><br />C. Analysis<br /><br />In the instant case, Bridges filed his appeal with the county court at law at 6:32 p.m. on the 30th day after the ALJ's decision became final. While Bridges's appeal was no doubt sitting in the clerk's office, after closing time, on the evening of the 30th day after the ALJ's decision, we cannot determine whether a deputy clerk exercised any control or custody over the appeal. See Strawder, 846 S.W.2d 57-58 (noting that the clerk accepted a facsimile filing during business hours and file stamped it with the date and time of its receipt); accord Tex. R. Civ. P. 21a (providing that "[s]ervice by telephonic document transfer after 5:00 p.m. local time of the recipient shall be deemed served on the following day."). We hold that Bridge's appeal was not timely filed. Therefore, the county court at law did not have jurisdiction to hear Bridges's appeal. The Department's first issue is sustained. (2)<br /><br />III. CONCLUSION<br /><br />The judgment of the county court is reversed, and the ALJ's decision is reinstated.<br /><br /><br /><br /><br />_______________________<br /><br />ROGELIO VALDEZ,<br /><br />Chief Justice<br /><br /><br /><br /><br />Memorandum Opinion delivered and filed<br /><br />this the 5th day of July, 2007.<br /><br /><br />1. Benoit involved multiple individuals who had their drivers' licenses suspended. Benoit, 994 S.W.2d at 213. Their appeals were consolidated and argued together because they involved similar facts and legal issues. Id.<br /><br />2. We do not address the Department's second and third issues, for their resolution would not further affect the outcome of this appeal. Tex. R. App. P. 47.1.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-9073674800017237597?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-86078721050416906012007-11-06T01:45:00.000-08:002007-11-06T01:49:23.198-08:00Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br />IN THE COURT OF CRIMINAL APPEALS<br /><br />OF TEXAS<br /><br /><br />NO. AP-75,526<br /><br />EX PARTE EVANGELICA AGUILAR, Applicant<br /><br /><br />ON APPLICATION FOR A WRIT OF HABEAS CORPUS<br /><br />CAUSE NO. 95-CR-1739-H IN THE 347TH DISTRICT COURT<br /><br />FROM NUECES COUNTY<br /><br />Per curiam.<br /><br /><br /><br />O R D E R<br /><br /><br />Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to twenty-five years' imprisonment. The Thirteenth Court of Appeals affirmed her conviction. Aguilar v. State, No. 13-97-00348-CR (Tex. App.--Corpus Christi, delivered May 6, 1999, pet. ref'd).<br /><br />Applicant contends that trial counsel was ineffective for, among other things, eliciting and failing to object to prejudicial testimony. We order that this application be filed and set for submission to determine whether counsel's errors should be considered individually or cumulatively under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The parties shall brief the issue.<br /><br />It appears that Applicant is represented by counsel. If that is not correct, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. Tex. Code Crim. Proc. art 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing: a confirmation that Applicant is represented by counsel; the order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court on or before December 18, 2006.<br /><br /><br />Filed: October 18, 2006<br /><br />Do not publish<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-8607872105041690601?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-7586994333519092922007-08-24T00:52:00.000-07:002007-08-24T01:02:57.467-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br />~~~~~~~~~~~~~~~~~~~~~~~~~~~<br /><br /><!--MAIN Content Table Begin--> <table width="100%"> <tbody><tr> <td class="TextSmall"> <a href="mailto:?subject=An%20opinion%20from%20the%20Texas%20Judiciary%20Online:%20Thirteenth%20Court%20of%20Appeals&body=This%20opinion%20is%20from%20the%20Texas%20Thirteenth%20Court%20of%20Appeals%20web%20site.%20%20http://www.13thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=16227" class="TextSmall"> <img src="http://www.13thcoa.courts.state.tx.us/resource/opinions/images/icoEMail.gif" align="absmiddle" border="0" /> Send this document to a colleague</a> </td><td class="textSmall" align="right"> <!-- Close This Window<a href="javascript:window.close()"><img src="../resource/images/icons/close.gif" width="16" height="16" border="0" align="absmiddle" hspace="3" /></a--> Close This Window<a href="http://www.13thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=16227#" onclick="window.close()"><img src="http://www.13thcoa.courts.state.tx.us/resource/images/icons/close.gif" align="absmiddle" border="0" height="16" hspace="3" width="16" /></a> </td> </tr><tr> <td class="TextJustify" colspan="2"> <hr /> <br /><br /> <p><span style="font-size:14;"><img src="http://www.13thcoa.courts.state.tx.us/opinions/r06494-matthewsvsot-8-20-07_mtd%5Csotseal6.gif" height="91" width="92" /> </span></p> <br /><br /><p><span style="font-size:14;"><center></center> </span></p> <br /><br /><br /><br /><p><span style="font-size:14;"><center><span style="font-family:Arial;"><strong>NUMBER 13-06-494-CR</strong></span></center> </span></p> <br /><br /><p><span style="font-size:14;"></span><span style="font-size:14;"><center><span style="font-family:Arial;"><strong>COURT OF APPEALS</strong></span></center> </span></p> <p><span style="font-family:Arial;"><strong> </strong></span></p> <p><span style="font-family:Arial;"><strong><center>THIRTEENTH DISTRICT OF TEXAS</center> </strong></span></p> <br /><br /><p><span style="font-family:Arial;"><strong></strong><center><strong>CORPUS CHRISTI - EDINBURG</strong></center> </span></p> <p><span style="font-family:Arial;"><strong> </strong></span></p> <p><span style="font-family:Arial;"><strong>DAVID C. MATTHEWS, Appellant,</strong></span></p> <br /><br /><p><span style="font-family:Arial;"><strong><center>v.</center> </strong></span></p> <br /><br /><p><span style="font-family:Arial;"><strong>THE STATE OF TEXAS, Appellee.</strong></span></p> <p><span style="font-family:Arial;"><strong> </strong></span></p> <center><span style="font-family:Arial;"><strong>On appeal from the County Court at Law of Lavaca County, Texas.</strong></span></center> <p><span style="font-family:Arial;"><strong> </strong></span></p> <p><span style="font-size:14;"><center><span style="font-family:Arial;"><strong>MEMORANDUM OPINION</strong></span></center> </span></p> <br /><br /><center><span style="font-family:Arial;"><strong>Before Chief Justice Valdez and Justices Benavides, and Vela</strong></span></center> <p><span style="font-family:Arial;"><strong></strong><center><strong>Memorandum Opinion by Justice Benavides</strong><span style="font-family:Arial;"></span></center> </span></p> <br /><br /><p><span style="font-family:Arial;"> Appellant David Matthews, appearing pro se, appeals his conviction for failure to reduce his speed while passing an authorized emergency vehicle. Tex. Transp. Code Ann. § 545.157 (Vernon Supp. 2006). After a jury trial, Matthews was fined $100.00, assessed court costs of $224.00, and assessed a transaction fee of $2.00. Matthews contends (1) that the prosecutor's closing argument conclusively demonstrates that he could not have slowed down to the speed required by law, and (2) that the prosecutor committed misconduct by prosecuting Matthews with knowledge of these "extenuating circumstances" surrounding his alleged traffic violation. We affirm.</span></p> <p align="center"><span style="font-family:Arial;">I. Background</span></p> <p><span style="font-family:Arial;"> On March 19, 2006, Matthews was ticketed for failure to reduce his speed while passing an emergency vehicle. The traffic citation appears in the record, and it states that Matthews was traveling at a speed of sixty miles per hour in a seventy mile per hour zone while passing the emergency vehicle.<a href="http://www.13thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=16227#N_1_">⁽¹⁾</a></span><span style="font-family:Arial;"></span></p> <p><span style="font-family:Arial;"> Matthews contested the traffic citation in the Justice Court of Lavaca County. After a non-jury trial, the justice court found Matthews guilty and assessed a fine of $196.00. Matthews appealed that decision to the County Court of Lavaca County. There, he pleaded not guilty and requested a jury trial. A jury of six was empaneled, and the case was tried on August 28, 2006.</span></p> <p><span style="font-family:Arial;"> The jury charge and verdict appear in the clerk's record. The jury found Matthews guilty and assessed a fine of $100.00 plus court costs. The reporter's record, however, consists of only a small portion of the trial-specifically, it includes only the Lavaca County Attorney's closing argument.</span></p> <p><span style="font-family:Arial;"> The Lavaca County Attorney argued that the evidence showed that Matthews was the driver of a vehicle on public highway US 77 in Lavaca County. She argued that Matthews failed to reduce his speed while passing a state trooper's parked emergency vehicle. The state trooper, Corporal Matthew Southall, had his emergency lights on and was issuing a traffic ticket to another driver. The county attorney argued that according to Southall's testimony, Matthews was traveling at sixty miles per hour where the posted speed limit was seventy miles per hour. </span></p> <p><span style="font-family:Arial;"> The portion of the transcript that Matthews relies on for his appeal is as follows:</span></p> <p><span style="font-family:Arial;"> [The radar] hit Mr. Matthews. He said 60. He said 58 for the truck that was behind him. Common sense tells you Mr. Matthews is in front, truck's in back. Truck's going 58. Mr. Matthews has to be going faster than 58. Mr. Matthews wants you to believe that the fact - if the radar - here's Corporal Southall's car, if the radar hits him and he is already passing by it's not a legitimate offense. Yes, it is. And the corporal said it is. It is because there is no way, physically, when Mr. Matthews is approaching this stationary emergency vehicle, that he could have been going 50 miles an hour. That is what the corporal testified to. . . . Corporal said there's no way that Mr. Matthews was ever going 50 miles-an-hour when he was passing the stationary emergency vehicle. It's that simple. </span></p> <br /><br /><p><span style="font-family:Arial;"> After his conviction, Matthews filed a pro se brief with this Court. The State has not filed a brief. </span></p> <p align="center"><span style="font-family:Arial;">II. Analysis </span></p> <br /><br /><p><span style="font-family:Arial;"> Matthews's issue apparently revolves around whether the county attorney admitted a significant fact during her closing argument. He asserts that the county attorney </span></p> <p><span style="font-family:Arial;"> [i]n her closing argument . . . pointed out that the vehicle following mine was traveling at 58 mph and therefore I could not have slowed down to 50 mph traveling through the emergency scene. . . . I submit that having been fully aware of these extenuating circumstances [the county attorney] still decided to proceed to trial which in turn means that this was not a good faith prosecution. In fact, deciding to proceed against an individual in full knowledge of their innocence constitutes malicious prosecution. </span></p> <br /><br /><p><span style="font-family:Arial;"> Matthews misconstrues the county attorney's closing argument. Nowhere in the transcript does the county attorney ever say that it was impossible for Matthews to slow down to an appropriate speed while passing the emergency vehicle. Rather, the county attorney was attempting to counter Matthews's argument that, although the radar registered him as traveling at sixty miles per hour <em>after </em>he had already passed the emergency vehicle, he was actually traveling fifty miles per hour while passing. </span></p> <p><span style="font-family:Arial;"> The county attorney merely stated that it was impossible that Matthews was traveling at fifty miles per hour when he passed the trooper. Her argument was that Matthews must have been going faster because the car immediately behind him was traveling at fifty-eight miles per hour when it passed. Nothing in this statement indicates that Matthews was unable to apply his brakes and reduce his speed, as Matthews contends. If such evidence was presented by Matthews at trial, we have no knowledge of it because the record is incomplete. </span></p> <p><span style="font-family:Arial;"> Although in a civil case, we may take as true facts stated in an appellant's brief that are not contradicted by the appellee, this is a criminal case. Tex. R. App. P. 38.1(f). Even so, we are not authorized to ignore the record on appeal and reverse a lower court based on statements by the appellant that are directly contradicted by the record. The record simply does not support Matthews's argument. </span></p> <p><span style="font-family:Arial;"> Moreover, the record does not reveal any objection to the allegedly inappropriate prosecution and closing argument; no motion for a mistrial related to prosecutorial misconduct was filed. Accordingly, Matthews's two complaints were not preserved for review. Tex. R. App. P. 33.1.</span></p> <p><span style="font-family:Arial;"> Finally, even had Matthews preserved error, his brief is entirely devoid of citations to legal authority. <em>See </em>Tex. R. App. P. 38.1(h). Although we recognize that pro se litigants are entitled to greater leniency, they are not exempt from the rules of procedure. <em>Wheeler v. Green</em>, 157 S.W.3d 439, 444 (Tex. 2005). We cannot remedy deficiencies in a litigant's brief or provide an adequate record when none is presented by the appellant. <em>Green v. Kaposta</em>, 152 S.W.3d 839, 841 (Tex. App.-Dallas 2005, no pet.). Both of Matthews's issues are overruled.</span></p> <p align="center"><span style="font-family:Arial;">III. Conclusion</span></p> <p><span style="font-family:Arial;"> Finding that Matthews has not presented anything for our review, we affirm the trial court's judgment of conviction. </span><span style="font-family:Arial;"></span></p> <br /><br /><p><span style="font-family:Arial;"> __________________________</span></p> <p><span style="font-family:Arial;"> GINA M. BENAVIDES</span></p> <p><span style="font-family:Arial;"> Justice</span></p> <br /><br /><p><span style="font-family:Arial;">Do not publish.</span></p> <p><span style="font-family:Arial;"><em>See</em> Tex. R. App. P. 47.2(b).</span></p> <p><span style="font-family:Arial;">Memorandum Opinion delivered and</span></p> <p><span style="font-family:Arial;">filed this the 23rd day of August, 2007.</span><span style="font-family:Arial;"></span></p> <p><a name="N_1_">1. </a><span style="font-family:Arial;">Texas Transportation Code section 545.157(a) provides:</span><span style="font-family:Arial;"></span></p> <br /><br /><p><span style="font-family:Arial;"> </span><span style="font-family:Arial;">(a) On approaching a stationary authorized emergency vehicle using visual signals that meet the requirements of Sections 547.305 and 547.702, an operator, unless otherwise directed by a police officer, shall:<br /></span></p> <p><span style="font-family:Arial;"> (1) vacate the lane closest to the emergency vehicle when driving on a<br />highway with two or more lanes traveling in the direction of the<br />emergency vehicle; or </span></p> <br /><br /><p><span style="font-family:Arial;"> (2) slow to a speed not to exceed:<br /></span></p> <p><span style="font-family:Arial;"> (A) 20 miles per hour less than the posted speed limit when the<br />posted speed limit is 25 miles per hour or more; or</span></p> <p><span style="font-family:Arial;"> </span></p> <p><span style="font-family:Arial;"> (B) five miles per hour when the posted speed limit is less than 25<br />miles per hour. </span></p></td> </tr> </tbody></table><div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-758699433351909292?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-36040119223789131722007-08-02T23:40:00.000-07:002007-08-02T23:44:36.674-07:00Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br /><br />NUMBER 13-05-00643-CR<br /><br /><br />COURT OF APPEALS<br /><br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br /><br />CORPUS CHRISTI - EDINBURG<br /><br /><br /><br />ELIZABETH REYNOLDS, Appellant,<br /><br /><br />v.<br /><br /><br />THE STATE OF TEXAS, Appellee.<br /><br />On appeal from the 105th District Court of Kleberg County, Texas.<br /><br /><br /><br />MEMORANDUM OPINION<br /><br /><br />Before Chief Justice Valdez and Justices Benavides and Vela<br /><br />Memorandum Opinion by Chief Justice Valdez<br /><br /><br />Appellant, Elizabeth Reynolds, appeals from her conviction of criminal solicitation of capital murder. Tex. Penal Code Ann. §§ 15.03(a), 19.02(b) (Vernon 2003); § 19.03(a)(3) (Vernon Supp. 2006). A jury found Reynolds guilty and assessed punishment at life in prison. The trial court entered a judgment of conviction and punishment according to the jury's verdict. By four issues, Reynolds contends that: (1) she was denied effective assistance of counsel in two distinct instances; (2) the trial court erred in denying a motion for mistrial; and (3) the evidence is factually insufficient to support her conviction. We affirm.<br /><br />I. BACKGROUND<br /><br />On the morning of August 9, 2003, Albert Benitez was in his garage apartment with Reynolds, his girlfriend. Suddenly the couple heard a loud thumping on the door. Benitez opened the door to encounter a man, later identified as Franciso Perez, pointing a gun at him and asking if he was Albert. Benitez slammed the door and yelled for Reynolds to call 911.<br /><br />At trial, Benitez testified for the State that he held the door closed as Perez rammed into it for a few minutes. After the ramming ended, Benitez continued to hold the door until he was shot from behind by Perez. Benitez believed Perez had entered the garage apartment through Benitez's parents' attached house. Perez shot Benitez two more times before Benitez ran outside. Benitez ran into an entrance of his parent's adjoining house to find a phone and call 911. Perez chased Benitez into his parents' house and shot him for the fourth time in the kitchen. Benitez testified that he ran to the back porch and was shot a fifth time. After being shot for the fifth time, Benitez lost his balance and fell off the porch. Perez then shot him a sixth time. Benitez ran to another area outside the house and saw Perez and Reynolds slowly driving away in Benitez's green Crown Victoria.<br /><br />Benitez called 911, and the police arrived. He told the officers that he had never seen Perez before, but he was able to give the officers a description. He told them that Perez had kidnaped his girlfriend and that the two were traveling in Benitez's Crown Victoria.<br /><br />Later that morning, Reynolds approached Kingsville Police Officer John Greif in the parking lot of the Kingsville police station. Officer Greif testified for the State that Reynolds approached him crying, yelling, and claiming she needed help. Reynolds told him her boyfriend had been shot and that she was abducted at gunpoint by the shooter and forced to drive to Kingsville. Reynolds also told Officer Greif that the shooter jumped out of the vehicle on the highway at a speed of between 55 and 70 mph.<br /><br />Officer Ted Figueroa participated in the conversation between Reynolds and Officer Greif. Officer Figueroa testified Reynolds seemed upset but was not crying. He further testified that she appeared to be shaking, but when asked a question, she would stop and answer it. When asked to give a description of the shooter, Reynolds told the officers she did not know what he looked like because he was wearing a ski mask. Officer Figueroa asked Reynolds if her boyfriend had gotten any help and Reynolds told him that she did not know; she did not mention placing a 911 call. Officer Figueroa then went to the section of the highway where Reynolds said the suspect had jumped from the vehicle, but he did not find any evidence to indicate anyone had jumped from a moving vehicle.<br /><br />Texas Ranger Oscar Rivera questioned Reynolds about the shooting and testified about her responses. According to Ranger Rivera, Reynolds phoned 911 from Benitez's parents' kitchen shortly after hearing gunshots. After dialing 911, Reynolds threw the phone on the kitchen table and ran towards the garage apartment yelling for Benitez. Unable to find him, she walked outside and was taken hostage. However, Ranger Rivera testified that there was no record that Reynolds had ever placed a call to 911 and that even if she had hung up after placing a call, there would be a call record. Ranger Rivera also testified about his visit to the crime scene, observations of the bullet holes in the door, and his conclusion that based on the location of these holes, the shooter had to have been in the kitchen area of the house.<br /><br />After the shooting and alleged kidnaping, Reynolds was unable to identify Perez in a line up. On a second occasion, however, when she was shown photographs, she pointed to Perez's picture and said that he kind of looked like the shooter.<br /><br />Ranger Rivera testified as to certain forensic evidence and business records utilized in the investigation. He stated that a shirt Reynolds later identified as the one worn by the shooter was found approximately a half mile off the highway where Reynolds had said that the shooter had jumped from the vehicle. Ranger Rivera testified that the shirt was not damaged in any way. He also testified that he pulled Reynolds's cell phone records. During the three month time frame from July 2003 to September 2003, Reynolds made over one hundred phone calls to a number that belonged to Sara Perez. A review of Reynolds's bank accounts revealed that Reynolds transferred $2,000 to her checking account on the day of the shooting. The record also contains a $2,000 check dated August 10, 2003, the day after the shooting, written from Reynolds's checking account to Francisco Perez.<br /><br />The State's final witness was Sara Perez. Ms. Perez testified she was the mother of Francisco Perez. Ms. Perez said that sometime around August 9, 2003, Reynolds called her house and asked to speak to Francisco Perez. After Ms. Perez told Reynolds that Francisco was not there, Ms. Perez testified that Reynolds told her that if a Texas Ranger came to her house, she should lie and say that she was Reynolds's maid.<br /><br />After hearing the testimony and deliberating on the evidence, the jury convicted Reynolds of criminal solicitation of capital murder. After a sentencing hearing, the jury sentenced Reynolds to life in prison. The trial court entered a judgment of conviction and sentenced Reynolds to life in prison pursuant to the jury's verdict. A motion for new trial was timely filed, but denied by operation of law. (1) This appeal ensued.<br /><br />II. DISCUSSION<br /><br />A. Ineffective Assistance of Counsel<br /><br />In her first two issues, Reynolds contends that she was denied effective assistance of counsel. Reynolds's first issue contends that she was denied effective assistance of counsel because her appellate counsel miscalculated the last date on which the court could hold a hearing on Reynolds's motion for new trial. Reynolds's second ineffective assistance of counsel issue contends that trial counsel failed to present a defense to the charges brought against her.<br /><br />1. Standard of Review<br /><br />There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Strickland v. Washington, 466 U.S. 668, 689 (1984); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). If "there is at least the possibility that the conduct could have been legitimate trial strategy," then we must "defer to counsel's decision and deny relief on an ineffective assistance of counsel claim on direct appeal." Johnson v. State, 172 S.W.3d 6, 12-13 (Tex. App.-Austin 2005, pet ref'd).<br /><br />2. Applicable Law<br /><br />We apply the two-pronged Strickland test to determine whether counsel's representation was so deficient that it violated Reynolds's Sixth Amendment right to counsel. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005); see Strickland, 466 U.S. at 684; Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To show that counsel was ineffective, an appellant must show by a preponderance of the evidence that (1) counsel's representation fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 686; Hernandez, 726 S.W.2d at 55.<br /><br />Before analyzing Reynolds's ineffective assistance of counsel claims, we acknowledge that Reynolds's first issue requires a brief discussion of motions for new trial.<br /><br />3. Motion for New Trial<br /><br />"As a prerequisite to obtaining a hearing, [a motion for new trial] must be supported by an affidavit specifically showing the truth of the grounds attacked." Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002) (citing King v. State, 29 S.W.3d 556, 569 (Tex. Crim. App. 2000); Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim App. 1993)). Reynolds's motion for new trial alleged that trial counsel was ineffective because he failed to (1) properly investigate the facts and circumstances of Reynolds's case, (2) call certain witnesses who were available and were willing to testify on Reynolds's behalf, (3) tell Reynolds about any plea offers by the State, and (4) strike a prospective juror for cause after the juror stated that he knew one of the State's witnesses on a personal level. The motion also alleges that trial counsel (5) made repeated promises to Reynolds that he had the case won, and (6) continually fell asleep during the trial. Facts supporting these allegations are not part of the record. Additionally, Reynolds did not file any affidavits to support her motion for new trial.<br /><br />While the Texas Rules of Appellate Procedure do not require a motion for new trial to be supported by affidavit, a judicial requirement is found in cases where the motion is grounded on matters that are not already part of the record. Bahm v. State, 219 S.W.3d 391, 395 (Tex. Crim. App. 2007) (citing Bearden v. State, 648 S.W.2d 688, 690 (Tex. Crim. App. 1983)); see Reyes v. State, 849 S.W.2d 812, 816 (Tex. Crim. App. 1993) (en banc) (noting that an unrestricted requirement of a hearing on matters not determinable from the record could lead to "fishing expeditions"). As such, since no reasonable grounds exist in the record to support the claims in the motion, without affidavits to support the allegations in the motion for new trial, Reynolds's motion for new trial was not proper. The claim to be examined in her first issue then becomes whether Reynolds's counsel was ineffective for failing to attach supporting affidavits.<br /><br />4. Appellate Counsel was Not Ineffective for Failing to Attach Supporting Affidavits<br /><br />In her motion for new trial, Reynolds alleged that a new trial should be granted on the basis of ineffective trial counsel. There is nothing in the record to overcome the strong presumption that failing to file the affidavits was something other than a strategic plan. None of the six allegations are supported by the record, and no affidavits were filed to offer support for any of the allegations. Rylander v. State, 101 S.W.3d 107, 110 (Tex. Crim. App. 2003) (noting that in most cases the undeveloped record on direct appeal will be insufficient to satisfy the dual prongs of Strickland because the reasonableness of counsel's decisions often involves facts not appearing in the appellate record). The record does not indicate why no affidavits were filed in support of the motion for new trial.<br /><br />Additionally, Reynolds has not shown how, or from whom, she could have secured the affidavits. We therefore cannot conclude that Reynolds has satisfied the first prong of Strickland. Accordingly, Reynolds has not shown that appellate counsel's performance was ineffective. We overrule Reynold's first issue.<br /><br />5. Trial Counsel's Actions do Not Constitute Ineffective Assistance of Counsel<br /><br />In her second issue, Reynolds argues that during trial she was denied effective assistance of counsel because her trial counsel generally failed to present a defense to the charges brought against her. We review this issue applying the same standard and law as previously stated, noting additionally that in general, on direct appeal, a silent record that provides no explanation for counsel's conduct is insufficient to overcome the presumption of reasonableness. Goodspeed, 187 S.W.3d at 392. (2)<br /><br />"Trial counsel should ordinarily be afforded an opportunity to explain his actions before being denounced as ineffective." Goodspeed, 187 S.W.3d at 392 (quoting Rylander v. State, 101 S.W.3d 107, 111 (Tex. Crim. App. 2003)). Although a motion for new trial based on ineffective assistance of trial counsel was filed, the allegations in the motion are not the same as those before this court. In her motion for new trial, Reynolds stated six instances of behavior she believed exhibited ineffective conduct from her trial counsel. On appeal, she does not advance these arguments but rather contends that trial counsel failed to present a defense to the charges against her. Reynolds advances her argument that trial counsel had "no clear plan of defense" by calling into question trial counsel's opening statements, his cross examination of Ranger Rivera, and his selection of witnesses.<br /><br />Even assuming that these actions constitute error on the part of trial counsel, a trial record seldom contains enough information to permit a reviewing court to evaluate the merit of the allegations. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). Ineffective assistance of counsel claims must be "firmly rooted in the record;" we cannot speculate as to the reasons trial counsel may have had for his actions. Goodspeed, 187 S.W.3d at 392. Because there is nothing in the record to indicate that the actions of Reynolds's trial counsel were so outrageous that no competent attorney would have engaged in it, we presume that counsel acted pursuant to a reasonable trial strategy. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). We therefore overrule Reynolds's second issue.<br /><br />B. Motion for Mistrial<br /><br />Reynolds's third issue is that the trial court erred in failing to grant a mistrial when the State's witness Ranger Rivera violated a motion in limine by mentioning that Francisco Perez had been convicted for his part in the shooting.<br /><br />During direct examination, the State asked Ranger Rivera about 106 phone calls from Reynolds's cell phone to a number in Bishop, Texas. The following exchange occurred:<br /><br />Q. (By the State): And were you able to determine whose number it was?<br /><br />A. (Ranger Rivera): Yes.<br /><br />Q. Whose number was it?<br /><br />A. That's Sara Perez is the owner of the phone and that's where Frankie Perez lives.<br /><br />Q. Who is Frankie Perez?<br /><br />A. That's the suspect that was convicted in the shooting-<br /><br />(Defense Counsel): Objection. May we approach the Bench?<br /><br /><br />The trial court then excused the jury and addressed Reynolds's objection. Although the trial court denied Reynolds's motion for mistrial, an instruction to disregard the answer was immediately given to the jury when they returned.<br /><br />1. Standard of Review<br /><br />We review a trial court's denial of a motion for mistrial for abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Mistrial is appropriate for only highly prejudicial and incurable errors. Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App. 2003). Generally, a prompt instruction to the jury to disregard the objectionable testimony will cure error. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000). The determination of whether an error justifies a mistrial is made by examining the particular facts of the case. Id. A mistrial is required only when the testimony is "clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury." Westmoreland v. State, 174 S.W.3d 282, 290 (Tex. App.-Tyler 2005, pet. ref'd) (quoting Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999)).<br /><br />2. Analysis<br /><br />Although improper, the record does not indicate that Ranger Rivera's testimony was calculated to inflame the minds of the jury. Additionally, the judge promptly instructed the jury to disregard Ranger Rivera's entire answer. It is well settled that if a trial court instructs a jury to disregard, we must presume that the jury followed the trial court's instruction. Allen v. State, 202 S.W.3d 364, 370 (Tex. App.- Fort Worth 2006, pet. ref'd); Ladd v. State, 3 S.W3d 547, 567 (Tex. Crim. App. 1999).<br /><br />3. Harmless Error<br /><br />Even assuming that the trial court committed error, any such error is harmless when viewed in light of the strong evidence establishing Reynolds's guilt. Wesbrook v. State, 29 S.W.3d 103, 119-20 (Tex. Crim. App. 2000). The State presented evidence of over 100 phone calls to Ms. Perez, the mother of Francisco Perez. Ms. Perez testified that Reynolds was placing these calls to Francisco, her son. The State also presented evidence of a $2,000 check, dated the day after the shooting, written from Reynolds to Francisco Perez. Throughout the trial, there was little dispute that Perez shot Benitez. The jury heard testimony that Benitez identified Perez as the gunman in a line up. Additionally, Reynolds's primary defense was the lack of direct evidence that she solicited Perez; not that Perez was not the gunman.<br /><br />Due to the overwhelming evidence establishing Reynolds's guilt, and the fact that the jury had been exposed to strong evidence that indicated Perez was likely to have been the gunman, we cannot say that the mention of Perez's conviction harmed Reynolds. Tex. R. App. P. 44.2(a) (providing that if the appellate record in a criminal case reveals constitutional error, the appellate court must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment); see Chapman v. California, 386 U.S. 18, 23 (1967) (the critical inquiry is whether the error may have contributed to appellant's conviction or punishment). We overrule Reynolds's third issue.<br /><br />C. Factual Sufficiency<br /><br />Appellant additionally argues that the evidence is factually insufficient to support the conviction of criminal solicitation. In conducting a factual sufficiency review, we view the evidence in a neutral light to determine whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 414-17 (Tex. Crim. App. 2006).<br /><br />A person commits the offense of criminal solicitation of capital murder if, "with intent that [capital murder] be committed, he requests, commands, or attempts to induce another," Tex. Penal Code Ann. § 15.03(a), to "intentionally or knowingly cause the death of an individual," id. § 19.02(b), "for remuneration or the promise of remuneration." id. § 19.03(a)(3). Viewing all evidence in a neutral light, without favoring either party, we conclude that the evidence is factually sufficient to support the jury's verdict.<br /><br />When Benitez testified, the jury heard evidence that Perez shot Benitez multiple times; all but one of the bullet wounds appear in Benitez's torso area. Although no direct evidence links Reynolds to the crime; the State presented the jury with bank and telephone records that showed multiple phone calls and a transfer of a large sum of money from Reynolds to Perez near the time of the shooting. Moreover, the behavior exhibited by Reynolds, both during and immediately following the shooting, could have supported the jury's verdict. Benitez testified that he believed Perez entered the garage apartment through Benitez's parents' house. He also testified that Reynolds had run into the house upon hearing a knock at the door. Although Reynolds told Ranger Rivera that she called 911 at the time of the shooting, the Ranger testified that there was no record of a 911 call being placed by Reynolds. A reasonable juror could have inferred from this evidence that Reynolds let Perez into the house. Additionally, the jury heard testimony from the police and investigators who spoke to Reynolds after the shooting. Reynolds denied knowing Francisco Perez, although the bank statements and phone records prove otherwise.<br /><br />Reynolds argues that the phone calls were to her cleaning lady, Sara Perez, and that the handwriting of the name "Francisco Perez" on the front of the check seemed more likely to match the endorsement on the back than Reynolds's own writing. The jury is the sole judge of the credibility of the witnesses and the weight to be given to the evidence, and may choose to believe all, some, or none of it. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000) (en banc). Sara Perez testified that Reynolds had called her and told her to lie and say that she was her cleaning lady if she was questioned.<br /><br /><br />A reasonable jury could have convicted Reynolds of criminal solicitation of capital murder based on the circumstantial evidence presented. It is well settled that circumstantial evidence, by itself, may be enough to support a jury's verdict. See Brown v. State, 911 S.W.2d 744, 746 (Tex. Crim. App. 1995) (noting that circumstantial evidence often has equal or even greater probative value than direct evidence). Additionally, considering all of the evidence and the reasonable inferences therefrom in a neutral light, the evidence is not so weak that the conviction is clearly wrong or manifestly unjust, and the proof of guilt is not against the great weight and preponderance of evidence. Watson, 204 S.W.3d at 416-17. We therefore overrule Reynolds's fourth issue.<br /><br />III. CONCLUSION<br /><br />The judgment of the trial court is affirmed.<br /><br /><br /><br /><br />ROGELIO VALDEZ<br /><br />Chief Justice<br /><br /><br />Do not publish.<br /><br />Tex. R. App. P. 47.2(b).<br /><br /><br />Memorandum Opinion delivered and filed<br /><br />this the 2nd day of August, 2007.<br /><br />1. A hearing on the motion for new trial had been calendered for a date after the expiration of the trial court's plenary power.<br /><br />2.<br />Where the trial record is inadequate to permit review on direct appeal, an ineffective assistance of counsel claim should be raised in a post-conviction petition for writ of habeus corpus. Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Moore v. State, 700 S.W.2d 193, 204-05 (Tex. Crim. App. 1985).<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-3604011922378913172?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-23978394707156013602007-05-21T21:02:00.000-07:002007-05-21T21:06:12.553-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /><br /><br />NUMBER 13-01-00062-CV<br /><br />COURT OF APPEALS<br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br />CORPUS CHRISTI – EDINBURG<br /><br /> <br /><br />CONCEPCION SAUCEDA, ET AL., Appellants,<br /><br />v.<br /><br />GILBERT KERLIN, INDIVIDUALLY,<br /><br />GILBERT KERLIN, TRUSTEE,<br /><br />WINDWARD OIL & GAS CORPORATION,<br /><br />AND P.I. CORPORATION, Appellees.<br /><br /> <br /><br />On appeal from the 107th District Court of Cameron County, Texas.<br /><br /> <br /><br />O P I N I O N<br /><br />Before Justices Hinojosa, Yañez, and Castillo<br /><br />Opinion by Justice Hinojosa<br /><br /> Appellants, descendants of Juan Jose Balli (“Balli Claimants”), sued appellees, Gilbert Kerlin, individually and as trustee, Windward Oil and Gas Corporation, and P.I. Corporation (“Kerlin Group”), for: (1) breach of contract; (2) breach of fiduciary duty; (3) fraud; and (4) conspiracy to commit fraud and breach of fiduciary duty. The Balli Claimants also asked for a declaratory judgment, an accounting, and the imposition of a constructive trust. See Tex. R. Civ. P. 274; Morales v. Morales, 98 S.W.3d 343, 346 (Tex. App.–Corpus Christi 2003, pet. denied). After a lengthy jury trial, judgment was rendered in favor of the Balli Claimants. The Balli Claimants’ appeal raises two issues and the Kerlin Group’s cross-appeal raises twelve issues. We reverse that part of the trial court’s judgment denying an equitable accounting and remand that issue to the trial court with instructions to order an equitable accounting. We affirm the remainder of the trial court’s judgment.<br /><br />I. Background<br /><br /> In 1829, the Mexican State of Tamaulipas concluded proceedings to confirm the grant of the area now known as Padre Island to Padre Nicolas Balli and his nephew, Juan Jose Balli. The size of the grant was estimated at approximately 49,913 acres. Padre Nicolas Balli died before the grant was finalized and his interest in Padre island passed by devise to his nieces and nephews, including Juan Jose Balli.<br /><br /> On January 19, 1830, Juan Jose Balli conveyed his interest in Padre Island, which consisted of the northern one-half of the island (the “northern division”) and the portion he inherited from Padre Nicolas Balli, to Santiago Morales.<br /><br /> On March 20, 1830, Morales appeared before a judge in the city of Matamoros in the Mexican State of Tamaulipas. Morales asserted that the Padre Island grant was defective and that he did not want to invest in the property until the title to Padre Island was clear. He asked that Juan Jose Balli return the purchase money, with the understanding that the sale could be reinstated if the title was cleared. In his response, Juan Jose Balli denied that the title was defective but said he would return the purchase money if Morales desired. Both men subsequently entered into a rescission agreement.<br /><br /> Despite the existence of this rescission agreement, in 1842 Morales mortgaged the southern half of the property that he had acquired from Juan Jose Balli to Maria de los Dolores. In 1845, Morales also conveyed the remaining interest to Jose Maria Tovar. The heirs of Padre Nicolas Balli conveyed their interests in the southern half of Padre Island (the “southern division”) to Nicolas Grisante during the 1840s.<br /><br /> In 1902, the heirs of Nicolas Grisante filed suit for possession of Padre Island in the United States Circuit Court for the Southern District of Texas in Laredo. In 1905, the court rendered a judgment granting possession of Padre Island to a number of defendant parties, including Pat F. Dunn, Jno. [sic] S. McCampbell, Mrs. H.M. King, Eddie White McCampbell, Oscar W. Staples, Jay Cook, Pauline J. Wells, Eugine R. Raphael, and Mrs. Conrad Menley. See Grisanti v. Am. Trust Co. of New Jersey, No. 18 (C.C.S.D. Tex. Nov. 16, 1905).<br /><br />A. Havre v. Dunn<br /><br /> In 1923, Lizzie Havre filed a trespass to try title suit against Pat F. Dunn, Sam A. Robertson, and W. E. Callahan. Dunn, Robertson, and Callahan filed a cross-action against approximately 120 other persons for the recovery of title and possession of Padre Island, except for the southernmost 7,500 acres. Many of the cross-defendants were cited by publication, including the heirs of Padre Nicolas Balli and the heirs of Juan Jose Balli. Most of the cross-defendants cited by publication did not personally appear during the proceedings. All of the cross-defendants were represented by a single attorney ad litem, who, acting on behalf of the cross-defendants, told the court that the law and facts were in favor of Robertson and Callahan.<br /><br /> In June 1928, the 103rd District Court of Cameron County rendered a judgment in Havre v. Dunn. Havre v. Dunn, No. 12469 (103rd Dist. Ct., Cameron County, June 9, 1928). Havre’s claims against Dunn, Robertson, and Callahan were nonsuited. Dunn’s claims against the cross-defendants were nonsuited also. The district court’s judgment granted title and possession of Padre Island, except for the southernmost 7,500 acres, to Robertson and Callahan. All other parties were denied relief on their respective pleadings.<br /><br /> A petition for bill of review was timely filed by Merrill W. Staples, one of the cross-defendants cited by publication, and Joseph G. Bowen. Robertson and Callahan jointly filed answers consisting of general demurrer and general denial. Merrill W. Staples was deposed in 1931. No major action was taken in the case until October 24, 1938.<br /><br />B. Kerlin and Associates<br /><br /> In 1937, Frederic Gilbert, a partner in the law firm of Sherman & Sterling in New York City, was contacted by Elmer Johnson, a business associate. Johnson proposed a business venture in south Texas. Johnson introduced Gilbert to E.R. Fry, J.Q. Henry, A.W. Phillips, and Herman Nami. Fry, Henry, Phillips, and Nami claimed that they had found documents in the archives of Matamoros, rescinding the land sale agreement between Juan Jose Balli and Santiago Morales. Fry, Henry, Phillips, and Nami promoted the documents as evidence that the title of Juan Jose Balli might still confer valid ownership to the northern division of Padre Island.<br /><br /> Gilbert hired F.W. Seabury, an attorney in Brownsville, to research the proposed venture. Seabury expressed reservations regarding the validity of the Juan Jose Balli title. Nevertheless, Gilbert entered into a joint partnership agreement with Phillips, Fry, Nami, and Henry to assert that the rescission agreement was valid and thereafter make claim to Juan Jose Balli’s interest in Padre Island.<br /><br /> Gilbert looked to his nephew, Gilbert Kerlin, to manage the venture. Kerlin was a 1936 graduate of Harvard Law School who was working for Gilbert at Sherman and Sterling. In 1938, Gilbert directed Kerlin to travel to Brownsville to purchase Juan Jose Balli’s title to Padre Island.<br /><br /> Upon arriving in Brownsville, Kerlin contacted Primitivo Balli, an heir of Juan Jose Balli and patriarch of the Balli family. Primitivo Balli agreed to assist Kerlin in finding and acquiring all of Juan Jose Balli’s interest in Padre Island from the heirs-at-law. Tomas Tijerina, an heir of Juan Jose Balli, assisted by translating for Kerlin. Primitivo Balli’s daughter, Librada Balli, worked as a secretary for Kerlin. Kerlin explained to Primitivo and Librada Balli that he was obtaining the deeds to clear title to Padre Island and that each deed would reserve a 1/64 royalty interest in each Balli grantor. Kerlin also made assurances that each Balli grantor would receive something if Kerlin received anything through the deeds.<br /><br /> Soon thereafter, Kerlin, as trustee, obtained from the heirs of Juan Jose Balli (the “Balli Grantors”), twelve general warranty deeds to the land constituting Juan Jose Balli’s interest in Padre Island. Only eleven of the deeds were recorded, as one appeared to be a duplicate. Seabury drafted each deed. Each deed contained an oil and gas reservation clause, which contained the following or substantially similar language:<br /><br />It being my contention (sic) to convey all of the interest which I have in the here and above (sic) described premises, and each and every part thereof, by reason of my being one of the lawful heirs of said Juan Jose Balli, irrespective of the acreage or quantity thereof, save and except that there is specifically reserved to me a one-sixty-fourth (1/64th) of the royalty of one-eighth (1/8th) of any and all oil and/or gas or other minerals in, on, and under my pro rata interest in the above described premises.<br /><br />C. Re-Opening Havre v. Dunn<br /><br /> Kerlin and Gilbert decided to pursue other interests in Padre Island that would not be subject to the partnership venture with Fry, Henry, Phillips, and Nami. By the end of 1938, Kerlin had acquired a number of titles to Padre Island, each of which had been cut off by the Havre v. Dunn judgment. Kerlin intended to claim ownership of this Padre Island property by asserting the validity of the titles he held. Kerlin and Gilbert sought to accomplish this by attacking and setting aside the judgment in Havre v. Dunn.<br /><br /> Gilbert approached the widow of Joseph G. Bowen, one of the cross-defendants in Havre v. Dunn who had attempted to obtain a new trial in 1930. Gilbert and Mrs. Bowen agreed that Kerlin would acquire oil, gas, and mineral leases on Padre Island as well as a power of attorney to prosecute, at his own expense, the bill of review previously filed by Staples and Bowen in Havre v. Dunn. Seabury was retained to reopen and prosecute the suit.<br /><br /> Seabury represented multiple clients in the Havre v. Dunn case, many of whom held conflicting titles to interests on Padre Island. Seabury represented Kerlin, individually and as trustee, Mrs. Bowen, George Warren, individually and as trustee, and the heirs of Juan Jose Balli. In the Havre v. Dunn case, Seabury filed an amended motion for new trial, an answer, a cross-action, and an amended cross-action on behalf of (1) the heirs of Juan Jose Balli; (2) Kerlin, individually and as trustee; and (3) George Warren. The heirs of Juan Jose Balli were never told that Seabury had filed a cross-action on their behalf, nor did Seabury ever communicate with the Ballis.<br /><br /> The cross-action alleged in part: “this defendant [the heirs of Juan Jose Balli] owns said premises from and under the sovereignty of the soil and in particular under and by virtue of an original grant thereof made by the State of Tamaulipas, Mexico, in the year 1828, to Nicolas Balli and Juan Jose Balli whose title and rights this defendant now has.” The amended cross-action attempted to establish the validity of the Juan Jose Balli title, as well as the other titles acquired by Kerlin.<br /><br /> On December 30, 1938, the presiding judge granted the amended motion for new trial filed by Seabury in Havre v. Dunn. On January 1, 1939, the judge’s term expired and a new judge took office. The succeeding judge rescinded the order granting a new trial on the grounds that the motion for new trial had been waived, abandoned, and determined by operation of law prior to the proceedings. On appeal, it was held that the succeeding judge had erred in rescinding the order granting the new trial. See Staples v. Callahan, 138 S.W.2d 206, 208 (Tex. Civ. App.–San Antonio 1940), aff’d, Callahan v. Staples, 161 S.W.2d 489 (Tex. 1942).<br /><br />D. Additional Suits for Padre Island<br /><br /> In 1940, while the Havre v. Dunn case was pending on appeal, the State of Texas filed suit, alleging that all of Padre Island was state property. Under the circumstances, parties with opposing claims of interest to Padre Island organized to form a united defense. These conflicting chains of title, named as defendants in the case, agreed to assert their collective titles against the State. The State of Texas ultimately lost the case at the Texas Supreme Court, and the United States Supreme Court denied certiorari. State v. Balli, 190 S.W.2d 71 (Tex. 1944), cert. denied, Texas v. Balli, 328 U.S. 852 (1946).<br /><br /> In 1940, Kerlin filed suit against the King Ranch. Kerlin asserted title to 6,000 acres of land on Padre Island. During the suit, Kerlin relied on the deeds from the Balli Grantors, as well as the rescission agreement between Santiago Morales and Juan Jose Balli. The case was settled, and the King Ranch conveyed a 6,000 acre tract to Kerlin. See Kerlin v. King Ranch, No. 18,1987 (103rd Dist. Ct., Cameron County, Texas) (filed Aug. 8, 1941).<br /><br /> During the litigation of State v. Balli, a State-conducted survey by J. Stuart Boyles determined that the size of Padre Island had grown to 135,213 acres. In the summer of 1941, the United States sued to condemn 34,884 acres of Padre Island to create a bombing range. The suit named many parties as defendants, including the Balli Grantors. The suit was abated until the decision in State v. Balli was resolved on appeal. See U.S. v. 34,884 Acres, No C. A. 142 (S.D. Tex. 1948), aff’d 182 F.2d 750 (5th Cir. 1950).<br /><br />E. Settlement Negotiations in Havre v. Dunn<br /><br /> On February 28, 1940, Kerlin, Gilbert, and Seabury met with opposing parties to discuss a proposed settlement of the Havre v. Dunn case. During the meeting Seabury asserted the validity of the deeds from the Balli Grantors and proposed that his “group” should receive forty percent of the entire acreage of Padre Island.<br /><br /> On March 24, 1942, Marcellus G. Eckhardt and Harbert Davenport, attorneys for some of the parties opposing Kerlin, shared correspondence inquiring whether there was a possibility of settling with the Balli Grantors. In other correspondence, Davenport expressed concerns to other counsel that in a new trial the Balli Grantors could claim an interest in Padre Island.<br /><br /> On June 8, 1942, Seabury called Davenport and requested that a settlement conference in Havre v. Dunn be held on June 9, 1942. On June 9, 1942, Seabury submitted a written proposal to settle the case. Seabury proposed that 25,542.6 acres of Padre Island be set aside to Kerlin and associated parties. A portion of these 25,542.6 acres was described by Seabury as being:<br /><br />In Kleberg or Kenedy County, a tract of 7,444 acres lying in the extreme south end of what in the Laredo judgment was called the northern division of Padre Island. Juan Jose Balli owned one-half and one-seventh of the other half of the island, a total of 77,264 acres on the Boyles’ survey. He conveyed to Santiago Morales the north half of the island plus one-half league, which on the same figures makes 69,820 acres. The difference, 7,444 acres, is the acreage that was never divested out of Juan Jose Balli on any theory of the case. Gilbert Kerlin and Associates want this to comply with their commitments with the heirs of Juan Jose Balli whose title is now in Gilbert Kerlin, Trustee. . . .<br /><br /> <br /><br /> On June 15, 1942, Gilbert wrote Kerlin a letter setting out the terms of Seabury’s settlement proposal. As part of the proposed settlement, Gilbert described a 20,000 acre tract formed from various tracts. One of these tracts was described as 7,500 acres “[f]or the Juan Jose interest.”<br /><br /> On September 29, 1942, Davenport wrote Seabury that Dunn would agree to settle for the land described in the settlement agreement, plus a one-third mineral interest in the southern portion of the island. Davenport was sure that there was enough acreage to satisfy all the legitimate claims of Seabury’s clients because of the island’s increase in size that was discovered during State v. Balli.<br /><br /> A hearing on the motion for new trial was set in Havre v. Dunn for November 9, 1942. Kerlin, who was serving in the army, secured a three-day pass to be present in Brownsville, Texas during that period. On November 9, 1942, a stipulation was filed with the court, stating that all matters in Havre v. Dunn had been settled. Pursuant to that stipulation, Kerlin was to receive all interest in and to the minerals on and underlying 1,000 acres out of a portion of Padre Island in Nueces County. Kerlin was also to receive conveyances, assignments, and releases sufficient to vest in Kerlin, individually and as trustee, the fee simple title to 20,000 acres of land out of the southern division of Padre Island.<br /><br /> Also on November 9, 1942, Kerlin attended a meeting with Gilbert and Seabury. At the meeting, Seabury advised abandonment of the Balli claim. Kerlin, individually and in his capacity as trustee, then executed reconveyance deeds to the Balli Grantors. The reconveyance deeds specifically recited that the Balli Grantors were advised of the reconveyance. However, Kerlin never informed the Balli Grantors of the reconveyance deeds, nor were the deeds ever recorded or delivered to the Balli Grantors.<br /><br /> While he was in Brownsville during his three-day pass from the army, Kerlin visited Librada Balli’s place of employment. Kerlin told Librada Balli that he was in town to take care of a little business. He did not mention the settlement of Havre v. Dunn. In fact, none of the Balli Grantors were informed of the settlement of Havre v. Dunn by either Kerlin or Seabury.<br /><br /> After the settlement stipulation was executed, Seabury filed a motion to dismiss the claims asserted in Havre v. Dunn, including the Balli cross-action. After November 9, 1942, Gilbert also told the partners in the Balli venture that he had abandoned the Balli claim.<br /><br /> In order to effectuate the settlement in Havre v. Dunn, the parties were required to execute cross-conveyance deeds to the respective acreage each party received in the settlement. By letter dated December 12, 1942, Davenport advised Eckhardt that Seabury had agreed to not give the Balli Grantors any recordable instrument that could cast a cloud on the Dunn title. On December 19, 1942, Gilbert advised Seabury that the McCampbells, a party to the settlement agreement, could be assured that no transfer of interest would be secured from the Balli Grantors, but rather that the Balli interest would “die in Kerlin.”<br /><br />F. Post-Settlement History<br /><br /> Seabury died in 1946. Upon his death, Harbert Davenport became Kerlin’s attorney. Kerlin took all of Seabury’s papers and files concerning Padre Island and kept them in the basement of his home in New York.<br /><br /> In a letter to Gilbert, dated January 10, 1952, Elmer Johnson, the man who arranged the venture between Gilbert and Fry, Henry, Phillips, and Nami, claimed he was owed a commission for the Balli venture. Gilbert replied that Seabury had a change of vision during the trial of State v. Balli and that no recovery could be had on the basis of the Balli title.<br /><br /> On November 30, 1953 and December 17, 1953, Primitivo Balli wrote letters to Kerlin, requesting documents showing his interest in Padre Island. By letter dated December 16, 1953, Kerlin responded that he had acquired no title under the deeds from the Balli Grantors. Kerlin did not tell Primitivo about the reconveyance deeds or that Havre v. Dunn had been settled and dismissed. On May 10, 1954, Primitivo Balli wrote Kerlin acknowledging receipt of the December 16 letter and requesting that Kerlin return his birth certificate. On May 27, 1954, Primitivo Balli again requested his birth certificate, which was later returned by Kerlin.<br /><br /> On June 2, 1954, Kerlin again wrote to Primitivo Balli. Kerlin said he was unable to establish that Juan Jose Balli did not sell all of his interest in Padre Island and that the heirs of Juan Jose Balli had no basis to claim any interest in Padre Island. On June 2, 1954, Kerlin also wrote a letter to Davenport, informing him that Primitivo Balli had written and he did not know whether Primitivo’s letter was preliminary to a claim. After June 2, 1954, Kerlin had no further communication with Primitivo Balli.<br /><br /> On June 28, 1961, Kerlin sold the surface of the 20,000 acre tract that he received in the Havre v. Dunn settlement, together with other land, for $3,412,500. Kerlin and his wife also conveyed all mineral interests in Padre Island to P.I. Corporation, which was entirely owned by Kerlin. North Central Oil Corporation acquired the one-fourth interest of George de Peyster, a partner of Kerlin, in the Padre Island minerals. North Central Oil subsequently conveyed the de Peyster interest to Windward Oil & Gas Corporation, which is also wholly owned by Kerlin.<br /><br /> In 1985, Connie Sauceda, a descendant of the Balli Grantors, contacted Kerlin regarding the royalty reservations in the deeds signed by the Balli Grantors. Kerlin told Sauceda that the deeds were invalid and that she was wasting her time. Although Sauceda did not mention a lawsuit, Kerlin told Sauceda that she would have the burden of proof, an action would cost a lot of money, and that an action would take years to find out what happened.<br /><br />G. The Ensuing Lawsuit<br /><br /> In February 1993, some of the Balli Claimants filed suit against the Kerlin Group. As the suit progressed, additional Balli Claimants joined the suit, as well as intervenors asserting different causes of action from the Balli Claimants.<br /><br /> In their seventh amended petition, the Balli Claimants alleged the following causes of action: (1) breach of contract; (2) breach of fiduciary duty; (3) fraud; and (4) conspiracy to commit fraud and breach of fiduciary duty. The Balli Grantors sought compensation for their damages, declaratory judgment, accounting, constructive trust, and attorney fees. The pleading also asserted the discovery rule and fraudulent concealment. In their second amended answer, the Kerlin Group asserted several affirmative defenses, including res judicata, estoppel, statute of limitations, laches, and the statute of frauds.<br /><br /> The jury found that: (1) Kerlin was estopped from denying the validity of the Balli deeds and the royalty reservations set out therein; (2) Kerlin acquired an individual interest in the eleven Balli deeds; (3) the royalty interest intended to be collectively reserved to the Balli Grantors was 1/64 of a 1/8 royalty; (4) Kerlin and P.I. Corporation failed to comply with the fiduciary duties to each of the Balli Grantors, with respect to the royalty interests reserved in the eleven deeds; (5) Seabury breached the fiduciary duty owed to the Balli Grantors during the settlement of Havre v. Dunn; (6) Kerlin was part of a conspiracy with Seabury to breach the fiduciary duties owed to the Balli Grantors in the settlement of Havre v. Dunn; (7) Seabury committed fraud against the Balli Grantors during the settlement of Havre v. Dunn; (8) Kerlin was part of a conspiracy with Seabury to commit fraud against the Balli Grantors in the settlement of Havre v. Dunn that damaged the Balli Grantors; (9) Kerlin failed to comply with his fiduciary duty to each of the Balli Grantors with respect to the royalty interest reserved in the eleven deeds during the settlement of Havre v. Dunn; and (10) Kerlin acquired in his own name 7,500 acres of land on Padre Island for the benefit of the Balli Grantors during the settlement of Havre v. Dunn, which he did not share with the Balli Grantors.<br /><br /> The Balli Grantors subsequently filed motions to disregard some of the jury findings and for judgment notwithstanding the verdict. The trial court granted the Balli Claimants’ request to disregard the jury’s answers to Jury Charge Question Numbers 20, 21, and 22 and denied their request to disregard the jury’s answers to Jury Charge Question Numbers 2, 3, and 7. On the same day, the trial court denied the Kerlin Group’s motion for judgment notwithstanding the verdict and the Balli Claimants’ request that the court order an accounting and disgorgement of profits.<br /><br /> The trial court signed the final judgment on November 20, 2000. On December 15, 2000, the Balli Claimants filed a motion to modify the final judgment, and on December 20, 2000, the Kerlin Group filed a motion for new trial and motion to modify, correct, or reform the final judgment. On December 20, 2000, the trial court signed an order granting in part and denying in part the Balli Claimants’ motion to modify the final judgment. A modified final judgment was signed on December 20, 2000. The Kerlin Group’s motion for new trial and motion to modify, correct, or reform the judgment were overruled by operation of law. The Balli Claimants filed and duly perfected appeal. The Kerlin Group also duly perfected appeal.<br /><br />II. The Kerlin Group’s Issues on Cross-Appeal<br /><br /> By cross-appeal, the Kerlin Group raises twelve issues, including challenges to the trial court’s conclusions of law, admission of evidence, jury charge questions, sufficiency of the evidence, and damages.<br /><br />A. Conclusions of Law<br /><br /> The Kerlin Group challenges several conclusions of law made by the trial court. We review a trial court's conclusions of law de novo to determine whether the trial court drew the correct legal conclusions from the facts. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); Aguero v. Ramirez, 70 S.W.3d 372, 373 (Tex. App.–Corpus Christi 2002, pet. denied); Dallas Morning News v. Bd. of Trustees, 861 S.W.2d 532, 536 (Tex. App.–Dallas 1993, writ denied). We are not bound by the trial court's conclusions of law. An appellate court is free to draw its own legal conclusions. Aguero, 70 S.W.3d at 373.<br /><br /> Conclusions of law will not be reversed unless they are erroneous as a matter of law. Stable Energy, L.P. v. Newberry, 999 S.W.2d 538, 547 (Tex. App.–Austin 1999, pet. denied). Conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory supported by the evidence. Mack v. Landry, 22 S.W.3d 524, 528 (Tex. App.–Houston [14th Dist.] 2000, no pet.); Spiller v. Spiller, 901 S.W.2d 553, 556 (Tex. App.–San Antonio 1995, writ denied). Conclusions of law will not require reversal if the controlling finding of facts will support a correct legal theory. Long Distance Int'l, Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347, 351 (Tex. 2001); Aguero, 70 S.W.3d at 373.<br /><br />1. Stare Decisis, Res Judicata, and Collateral Estoppel<br /><br /> In its first issue, the Kerlin Group contends that the doctrines of stare decisis, res judicata, and collateral estoppel precluded the Balli Claimants’ filing of the underlying action.<br /><br />a. Stare Decisis<br /><br /> The Kerlin Group asserts that the decision in State v. Balli bars the Balli Claimants’ suit. The Kerlin Group argues that the dispute as to how the land titles of Padre Island should be interpreted has already been determined by the Texas Supreme Court in State v. Balli. Therefore, a subsequent determination is barred by the doctrine of stare decisis.<br /><br /> The doctrine of stare decisis provides that after a principle, rule, or proposition of law has been decided by the Texas Supreme Court, or the highest court of the State having jurisdiction over a particular case, the decision is accepted as binding precedent by the same court or other courts of lower rank when the point is presented in a subsequent suit between different parties. Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964). As generally applied, the doctrine governs only the determination of questions of law, and observance does not depend on the identity of the parties. Id. Stare decisis is generally not conclusive as to the determination of a disputed issue of fact when the same issue arises in another case between persons who are strangers to the record in the first suit. Id.<br /><br /> The doctrine of stare decisis applies to suits involving claims to titles of land. Robbins v. HNG Oil Co., 878 S.W.2d 351, 361 (Tex. App.–Beaumont 1994, writ dism'd w.o.j.). Where the supreme court has given definite effect to a specific writing or a particular fact situation, such as when it determines the true construction of a will or the validity of a deed, that determination is binding and conclusive in all subsequent suits involving the same subject matter, whether the parties and the property are the same or not. Case-Pomeroy Oil Corp. v. Pure Oil Co., 279 S.W.2d 886, 888 (Tex. App.–Waco 1955, writ ref'd). This is true because of the importance of establishing stability of land titles, sales, and transactions. Robbins, 878 S.W.2d at 361.<br /><br /> While in State v. Balli, the supreme court did review issues of fact that were relevant to the issue of whether the State of Texas had a valid claim to Padre Island, the court did not issue a proposition of law that bars consideration of the issues of fact in controversy in this case. Nor did the supreme court construe or give definite meaning to any ofthe twelve warranty deeds conveyed by the heirs of Juan Jose Balli to Kerlin. Finally, the ultimate question of law in State v. Balli was whether the defendant’s failure to comply with the Relinquishment Act Footnote and Section 8, Article 14 of the Texas Constitution of 1876 forfeited the land grant of Padre Island. We conclude that the question presented in State v. Balli is manifestly different from the questions of law presented in the instant case. “Clearly, we think, the decision of the former ‘question of law’ could not and should not apply to, control, or determine the latter ‘question of law’, a separate and distinct question, determinable under entirely different principles and decisions.” Joslin v. State, 146 S.W.2d 208 (Tex. Civ. App.–Austin 1940, writ ref'd). Accordingly, we hold that the doctrine of stare decisis did not bar the Balli Claimants’ claims against the Kerlin Group.<br /><br />b. Res Judicata<br /><br /> The Kerlin Group further asserts that the claims of the Balli Claimants are barred by the doctrine of res judicata. Specifically, the Kerlin Group contends that these claims are barred by the court decisions in U.S. v. 34,884 Acres and State v. Balli.<br /><br /> Res judicata, also referred to as claim preclusion, prevents the relitigation of a finally adjudicated claim and related matters that should have been litigated in a prior suit. State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Claim preclusion prevents splitting a cause of action. Barr, 837 S.W.2d at 628; Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985). The policies behind the doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery. Barr, 837 S.W.2d at 628.<br /><br /> Federal law controls the determination of whether res judicata will bar a later state court proceeding. San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 281 (Tex. 1996); Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1990). Therefore, we will review whether the doctrine of res judicata bars the claims of the Balli Claimants using two different standards of review.<br /><br />i. Res Judicata Under the Texas Standard<br /><br /> Texas follows the transactional approach to res judicata. State & County Mut. Fire Ins. Co., 52 S.W.3d at 696. This approach mandates that a defendant bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party's suit. Id. However, when the parties are co-parties rather than opposing parties, the compulsory-counterclaim rule and res judicata only act as a bar to a co-party's claim in a subsequent action if the co-parties had “issues drawn between them” in the first action. Id. (citing Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992)). For purposes of res judicata, co-parties have issues drawn between them and become adverse when one co-party files a cross-action against a second co-party. See id.<br /><br /> In State v. Balli, the heirs of Juan Jose Balli and Kerlin were co-defendants, alongside various other holders of conflicting title to Padre Island. While Kerlin did file a cross-claim against the State, Kerlin and the heirs of Juan Jose Balli remained co-parties as opposed to cross-parties during the proceedings. It was not the intent of parties defending against the suit to resolve title ownership claims. In fact, the defendants in the case actually stipulated that they waived all rights to prosecute cross-actions and controversies among themselves. The parties also stipulated that “nothing done in this case is to be considered as res adjudicata (sic) or shall prejudice the rights of said defendants as to any issues between those defendants. . . .” As there were no “issues drawn between them,” Kerlin and the heirs of Juan Jose Balli were not compelled to bring counterclaims against the other in the State v. Balli case. See id. Therefore, the claims of the Balli Claimants were not precluded by the decision in State v. Balli and the doctrine of res judicata.<br /><br />ii. Res Judicata Under the Federal Standard<br /><br /> We must apply federal law in analyzing whether the claims of the Balli Claimants are barred by the decision in U.S. v. 34,884 Acres, because that case was a federal court decision now being used to bar a state court proceeding. See San Antonio Indep. Sch. Dist., 936 S.W.2d at 281; Eagle Props., Ltd., 807 S.W.2d at 718. Under federal law, the doctrine of res judicata will apply if: (1) the parties are identical or in privity; (2) the prior judgment is rendered by a court of competent jurisdiction; (3) there is a final judgment on the merits; and (4) the same cause of action is involved in both cases. Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.), 163 F.3d 925, 934 (5th Cir. 1999); San Antonio Indep. Sch. Dist., 936 S.W.2d at 281; Eagle Props., Ltd., 807 S.W.2d at 718.<br /><br /> It is a fundamental principle of American jurisprudence that a person cannot be bound by a judgment in litigation to which he was not a party. Meza v. Gen. Battery Corp., 908 F.2d 1262, 1266 (5th Cir. 1990). Nevertheless, federal courts have held that in certain circumstances, judgments can bind persons not party to the litigation in question. Id. This applies to persons in privity with parties to the litigation. Id. For res judicata purposes, privity exists under three circumstances. First, a non-party who has succeeded to a party's interest in property is bound by any prior judgments against the party. Second, a non-party who controlled the original suit will be bound by the resulting judgment. Third, federal courts will bind a non-party whose interests were represented adequately by a party in the original suit. Id.; Southwest Airlines Co. v. Tex. Int’l Airlines, Inc., 546 F.2d 84, 95 (5th Cir. 1977).<br /><br /> The Balli Claimants stand in privity with the Balli Grantors, because they have succeeded to those parties’ interest in property bound by U.S. v. 34,884 Acres. Thus, we conclude that the first element of federal claim preclusion is satisfied.<br /><br /> The second and third elements of federal claim preclusion also appear satisfied. Neither party has questioned whether the court in U.S. v. 34,884 Acres had competent jurisdiction, and neither party has questioned the validity of the judgment in that case.<br /><br /> To determine whether two suits involve the same claim under the fourth element, the Fifth Circuit has adopted the transactional test of the Restatement (Second) of Judgments, Section 24. In re Southmark Corp., 163 F.3d at 934. The critical issue is whether the two actions under consideration are based on “the same nucleus of operative facts.” Id.<br /><br /> The Kerlin Group failed to set forth an argument demonstrating whether the present suit and the suit in U.S. v. 34,884 Acres arise out of the same nucleus of operative facts. Furthermore, it appears that the core facts from which U.S. v. 34,884 Acres and the present action arise differ. U.S. v. 34,884 Acres was a condemnation suit against all possible holders of title to Padre Island. By contrast, the core facts in the present suit concern whether Kerlin breached his fiduciary duty and committed fraud by concealing and converting property interests owed to the Balli Claimants. Although both suits are derived out of the initial grant by the State of Tamaulipas, Mexico to Juan Jose Balli and the conflicting chains of title from that grant, the “nucleus of operative facts” or facts rudimentary to discerning the claims at issue are dissimilar.<br /><br /> Thus, the Kerlin Group failed to demonstrate that federal claim preclusion barred the instant case under U.S. v. 34,884 Acres. Accordingly, we hold that res judicata does not bar the present claim under either State v. Balli or U.S. v. 34,884 Acres.<br /><br />c. Collateral Estoppel<br /><br /> The Kerlin Group asserts that the Balli Claimants were collaterally estopped from bringing the underlying suit because of U.S. v. 34,884 Acres. Collateral estoppel, or issue preclusion, prevents relitigation of particular issues already resolved in a prior suit. Barr, 837 S.W.2d at 628. The Texas Supreme Court has declined to decide whether state or federal collateral estoppel law governs the preclusive effect of a prior federal judgment on a subsequent state court action. Johnson & Higgins v. Kenneco Energy, 962 S.W.2d 507, 519 n.7 (Tex. 1998). This is because the court has determined that the standard of review for issue preclusion is the same under both the federal and state standards. Id.; John G. & Marie Stella Kenedy Mem. Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Eagle Props., Ltd., 807 S.W.2d at 721. Under both federal and Texas law, a party seeking to assert the bar of collateral estoppel must establish that: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. John G. & Marie Stella Kenedy Mem. Found., 90 S.W.3d at 288.<br /><br /> The Kerlin Group failed to provide reasons why collateral estoppel should bar the case at hand. Nevertheless, we conclude that the decision in U.S. v. 34,884 Acres does not support the imposition of collateral estoppel. It is a generally accepted proposition that collateral estoppel is not applied to an action unless the parties were adversaries in the original action. Restatement (Second) of Judgments, Section 38 provides:<br /><br />Parties who are not adversaries to each other under the pleadings in an action involving them and a third party are bound by and entitled to the benefits of issue preclusion with respect to issues they actually litigate fully and fairly as adversaries to each other and which are essential to the judgment rendered.<br /><br /> <br /><br />Restatement (Second) of Judgments § 38 (1982); see also Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 821 n.1 (Tex. 1984) (J. McGee, dissenting). In U.S. v. 34,884 Acres, Kerlin and the heirs of Juan Jose Balli were co-parties who did not maintain adversarial positions during the proceedings. The doctrine of collateral estoppel cannot be applied under these circumstances.<br /><br /> Thus, the doctrines of stare decisis, res judicata, and collateral estoppel did not bar the case at hand. Accordingly, we overrule the Kerlin Group’s first issue.<br /><br />2. Laches<br /><br /> In its sixth issue, the Kerlin Group generally asserts that the claims of the Balli Claimants were barred as a matter of law by the equitable doctrine of laches.<br /><br /> The doctrine of laches is described as a party’s unreasonable delay in asserting legal or equitable rights and another’s detrimental good-faith change in position because of the delay. Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 415 (Tex. App.–Corpus Christi 2001, pet. denied). The application of laches is limited to actions at law that are essentially equitable in character. Id. A party must establish the following two elements to claim laches: (1) unreasonable delay by one having legal or equitable rights in asserting them; and (2) a good faith change of position by another to his detriment because of the delay. Caldwell v. Barnes, 975 S.W.2d 535, 538 (Tex. 1998). A mere showing of delay does not satisfy the requirements of laches. Wayne, 52 S.W.3d at 416. The delay must have injured the defendant. Id. The party asserting laches has the burden of proving it. Brewer v. Nationsbank of Texas, 28 S.W.3d 801, 804 (Tex. App.–Corpus Christi 2000, no pet.).<br /><br /> The Kerlin Group argues that all facts and occurrences relating to the Balli Claimants were known or readily available more than fifty years before this case was filed. Assuming that the first element of laches is satisfied, we conclude that the Kerlin Group failed to show detriment or harm resulting from the delay.<br /><br /> Accordingly, we hold that laches does not bar the claims of the Balli Claimants. We overrule the Kerlin Group’s sixth issue.<br /><br />3. Statutory Tolling Defense<br /><br /> In its seventh issue, the Kerlin Group raises the following two sub-issues: (1) whether the trial court erred in holding that limitations were statutorily tolled as a matter of law; and (2) whether the trial court erred in granting the Balli Claimants’ motion for judgment notwithstanding the verdict on Jury Charge Question Numbers 21 and 22.<br /><br /> Section 16.063 of the Texas Civil Practices and Remedies Code provides: “The absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence.” Tex. Civ. Prac. & Rem. Code Ann. § 16.063 (Vernon 1997).<br /><br /> The Kerlin Group argues that the tolling provisions of section 16.063 are inapplicable in this case because the section generally does not apply to nonresidents. See Wyatt v. Lowrance, 900 S.W.2d 360, 362 (Tex. App.–Houston [14th Dist.] 1995, writ denied). However, the tolling provision does apply to a nonresident who was present in the state when the obligation arose. Howard v. Fiesta State Show Park, Inc., 980 S.W.2d 716, 723 (Tex. App.–San Antonio 1998, pet. denied); Wyatt, 900 S.W.2d at 362.<br /><br /> The Kerlin Group has failed to make a cogent argument as to why the trial court erred in applying section 16.063 in this case. Because section 16.063 appears to be a relevant and applicable rule of law in this case, we overrule the first sub-issue of the Kerlin Group’s seventh issue. We will address the second sub-issue later in this opinion.<br /><br />4. Estoppel by Deed<br /><br /> In its second and third issues, the Kerlin Group questions whether the trial court appropriately allowed submission of the theory of “estoppel by deed” to the jury.<br /><br /> Estoppel by deed stands for the general proposition that “all parties to a deed are bound by the recitals therein, which operate as an estoppel, working on the interest in the land if it be a deed of conveyance, and binding both parties and privies; privies in blood, privies in estate, and privies in law.” Wallace v. Pruitt, 20 S.W. 728, 728-29 (Tex. Civ. App.–Houston 1892, no writ). Estoppel by deed or contract precludes parties to a valid instrument from denying its force and effect. Schroeder v. Tex. Iron Works, Inc., 769 S.W.2d 625, 628-29 (Tex. App.–Corpus Christi 1989), aff'd on other grounds, 813 S.W.2d 483 (Tex. 1991). To determine whether the doctrine of estoppel by deed should apply to a deed and the recitals therein, we look to the intention of the parties to the instrument, to be determined from the writing itself by the consideration whether the recital was designed to furnish a basis of action by the parties. Wallace, 20 S.W. at 729. In other words, whether the parties intended to bind themselves, to contract, as set forth in the instrument. Id.<br /><br /> The Kerlin Group first argues that the Balli Claimants’ estoppel by deed theory was improperly brought, thus violating the “defensive character” of the doctrine of estoppel. In support, the Kerlin Group cites Southland Life Ins. Co. v. Vela, which stated:<br /><br />An estoppel is defensive in character. It does not create a cause of action. Its function is to preserve rights, and not to bring into being a cause of action.<br /><br /> <br /><br />217 S.W.2d 660, 663 (Tex. 1949).<br /><br /> However, the Kerlin Group has misconstrued the theory of estoppel by deed as applied in this case. The Balli Claimants did not allege a cause of action arising out of their claim of estoppel by deed. Rather, they pleaded estoppel by deed to block the Kerlin Group from disavowing the royalty reservations in the deeds drafted by Seabury and Kerlin. Estoppel by deed is a bar that precludes a party from denying the truth of a deed. Talley v. Howsley, 170 S.W.2d 240, 243 (Tex. Civ. App.–Eastland), aff’d, 176 S.W.2d 158 (Tex. 1943). The doctrine may be invoked in a suit concerning a right arising out of a deed. Id. As such, the use of estoppel by deed by the Balli Claimants does not act offensively, but is simply effected to prohibit the Kerlin Group from denying the existence of an agreement into which the Kerlin Group entered.<br /><br /> Secondly, the Kerlin Group argues that estoppel by deed does not conceptually apply to reservations. This proposition is incorrect. Although estoppel by deed most commonly operates upon a grantor in favor of a grantee, the doctrine may be applied against a grantee in favor of a grantor through covenants of the grantee that run with the land purportedly conveyed. Id., 170 S.W.2d at 243. The general rule is “that the grantee in a deed accepted by him is a party to the deed . . . and that he is concluded by recitals in the deed and by reservations contained therein in favor of the grantor.” Greene v. White, 153 S.W.2d 575, 583 (Tex. 1941); see also Waco Bridge Co. v. City of Waco, 20 S. W. 137, 139 (Tex. 1892). Because the deeds in question contain reservations in favor of the Balli Grantors, we conclude the trial court did not err in submitting the issue of “estoppel by deed” to the jury. We overrule the Kerlin Group’s second and third issues.<br /><br />5. Breach of Fiduciary Duty<br /><br /> In its fourth issue, the Kerlin Group contends that the trial court erred in holding as a matter of law that Gilbert Kerlin, as owner of the executive rights, owed a fiduciary duty to the Balli Grantors, non-participating royalty interest holders. Footnote<br /><br /> Texas courts generally have applied a standard of “utmost good faith” to one who exercises executive rights to lease or develop minerals. Hlavinka v. Hancock, 116 S.W.3d 412, 417 (Tex. App.–Corpus Christi 2003, pet. denied) (citing Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543, 545 (1937); Luecke v. Wallace, 951 S.W.2d 267, 274 (Tex. App.–Austin 1997, no writ)). In Manges v. Guerra, 673 S.W.2d 180 (Tex. 1984), the supreme court determined that, apart from any contract, when an executive exercises his rights, "[a] fiduciary duty arises from the relationship of the parties. . . . [T]hat duty requires the holder of the executive right to acquire for the non-executive every benefit that he exacts for himself." In re Bass, 113 S.W.3d 735, 744 (Tex. 2003) (quoting Manges, 673 S.W.2d at 183-84); see Hlavinka, 116 S.W.3d at 417. The supreme court thereby created a fiduciary duty between executive and non-executive interest holders in mineral deeds. See Bass, 113 S.W.3d at 744 (citing Manges, 673 S.W.2d at 180). However, this fiduciary duty is only imposed on an executive in conjunction with the execution of oil and gas leases. See Id. (citing Schlittler v. Smith, 128 Tex. 628, 101 S.W.2d 543, 545 (Tex. 1937)); Hlavinka, 116 S.W.3d at 420. If the executive never exercises his power, there can be no imposition or breach of a fiduciary duty. Hlavinka, 116 S.W.3d at 420.<br /><br /> In the instant case, the evidence shows that the Balli Grantors executed deeds conveying to Kerlin “all of the interest which [they] had [in Padre Island] . . . irrespective of the acreage or quantity therefore,” reserving only a royalty interest. Although the acreage of and title to the lands covered by the deeds were contested, the Kerlin Group asserted the validity of the Balli Grantors’ deeds during the settlement negotiations to resolve ownership claims to Padre Island. The evidence showed, and the jury found, that 7,500 acres of the property received by Kerlin as a result of the settlement was based on Kerlin’s assertion of the Balli deeds, and had been awarded to Kerlin for the benefit of the Balli Grantors. However, when the Balli Grantors inquired as to the status of their interests, Kerlin asserted that he had obtained no interest based on their conveyances to him. By claiming that the property he acquired as a result of the settlement agreement was not derivative of nor based on the conveyances from the Balli Grantors, Kerlin attempted to eliminate or circumvent the royalty interests reserved by the Balli Grantors. He subsequently withheld from the Balli Grantors all of the money to which they were entitled under the deeds.<br /><br /> When Kerlin executed leases on the property, he was exercising his executive right. The nonparticipating royalty interests reserved by the Balli Grantors are, by definition, non-executive interests. See Bass, 113 S.W.3d at 744. Therefore, under the supreme court’s holding in Manges, a fiduciary duty was imposed between the Balli Grantors as the non-executive and Kerlin as the executive.<br /><br /> We determine that the trial court did not err in concluding that Kerlin owed a fiduciary duty to the Balli Grantors. We overrule the Kerlin Group’s fourth issue.<br /><br />6. Conspiracy<br /><br /> As an additional issue, the Kerlin Group argues that Kerlin cannot be “charged” as a conspirator because of his status as a co-client with Seabury. In support, the Kerlin Group cites Bradt v. West, 892 S.W.2d 56 (Tex App.–Houston [1st Dist.] 1994, writ. denied).<br /><br /> The court in Bradt v. West held that a client cannot be liable for the attorney’s conduct, unless a client is implicated in some way other than merely having entrusted legal representation to the attorney. Id. The holding in Bradt v. West does not support the proposition that the Kerlin Group espouses. Because the Kerlin Group did not provide any additional references to the record or citations to authority, we conclude that the trial court committed no error with regard to this issue. Accordingly, we overrule this additional issue.<br /><br />7. Fraudulent Concealment<br /><br /> In its eighth issue, the Kerlin Group argues, in part, that the trial court erred in applying fraudulent concealment as a legal theory.<br /><br /> Fraudulent concealment is an equitable doctrine that provides defense to the bar of limitations. Santanna Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex. App.–Austin 1997, pet. denied). Under the doctrine of fraudulent concealment, the accrual of the plaintiff's cause of action is deferred because a defendant cannot be permitted to avoid liability for its actions by deceitfully concealing wrongdoing until the statute of limitations has run. Id. The essence of fraudulent concealment is first, actual knowledge that a wrong has occurred, and second, a fixed purpose to conceal the facts necessary for the plaintiff to know that the cause of action has accrued. Arabian Shield Dev. Co. v. Hunt, 808 S.W.2d 577, 584 (Tex. App.–Dallas 1991, writ denied).<br /><br /> The elements of fraudulent concealment are: (1) the existence of an underlying tort; (2) the defendant's knowledge of the tort; (3) the defendant's use of deception to conceal the tort; and (4) the plaintiff's reasonable reliance on the deception. Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App.–Fort Worth 1997, pet. denied); DiGrazia v. Old, 900 S.W.2d 499, 502 (Tex. App.–Texarkana 1995, no writ); Arabian Shield Dev. Co., 808 S.W.2d at 585. To establish the affirmative defense of fraudulent concealment, the plaintiff has the burden of putting forth proof that raises an issue of fact with respect to that claim. Santanna Natural Gas Corp., 954 S.W.2d at 890.<br /><br /> The Kerlin Group contends that fraudulent concealment is inapplicable because the disposition of Havre v. Dunn was a matter of public record. The Kerlin Group argues that when constructive notice of matters of public record is imputed, it is conclusive over any claimed lack of actual notice. Kerlin Group cites HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998), but does not provide any further argument in support of its position.<br /><br /> In HECI Exploration Co. v. Neel, the Texas Supreme Court articulated two principles that apply to the discovery rule. HECI Exploration Co., 982 S.W.2d at 886. These principles are that the nature of the injury must be inherently undiscoverable and that the injury itself must be objectively verifiable. Id. The discovery rule exception operates to defer accrual of a cause of action until the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim. Wagner & Brown v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001). However, the Kerlin Group cites HECI Exploration Co. v. Neel for a proposition affecting the application of the doctrine of fraudulent concealment. The discovery rule and fraudulent concealment are distinct concepts that exist for different reasons. Id. at 736. The courts observe a distinction between the two doctrines because each is characterized by different substantive and procedural rules. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Even the Court in HECI Exploration Co. v. Neel recognized the distinction, stating, “Although we determine whether the discovery rule applies to particular types of cases rather than to a particular case, we note that HECI gave the Neels whatever information they wanted when asked. Of course, if an operator fraudulently concealed information from a lessee, decisions of this and other courts indicate that limitations may be tolled.” HECI Exploration Co., 982 S.W.2d at 886.<br /><br /> We hold the trial court did not err in allowing the doctrine of fraudulent concealment. We overrule that part of the Kerlin Group’s eighth issue relating to fraudulent concealment.<br /><br />B. Motion for Judgment Notwithstanding the Verdict<br /><br /> In the second sub-issue of its seventh issue, the Kerlin Group questions whether the trial court erred in granting the Balli Claimants’ motion for judgment notwithstanding the verdict on Jury Charge Question Numbers 21 and 22. Question Numbers 21 and 22 concern application of the statutory tolling provision. See Tex. Civ. Prac. & Rem. Code § 16.063 (Vernon 1997).<br /><br /> Question Number 21 asked the jury:<br /><br />Do you find that Gilbert Kerlin was physically present in the State of Texas and committed any act in furtherance of the conspiracy during any time that F.W. Seabury breached his fiduciary duties to the Juan Jose Balli grantors in the settlement of Havre v. Dunn?<br /><br /> <br /><br />Question Number 22 asked the jury:<br /><br /> <br /><br />Do you find that Gilbert Kerlin was physically present in the State of Texas during any time that he breached his fiduciary duty to the Juan Jose Balli grantors in the settlement of Havre v. Dunn?<br /><br /> <br /><br />Both Questions contained the following instruction: “You are instructed that “presence” means actual physical presence within the territorial limits of the State of Texas. Presence for only part of a day is not counted as a presence for the whole day.”<br /><br /> The jury answered “no” to both Questions. In their motion for judgment notwithstanding the verdict, the Balli Claimants asserted that the undisputed evidence showed that Gilbert Kerlin was in Texas during the period from November 6, 1942 to November 9, 1942. The trial court agreed and granted the Balli Claimants’ motion for judgment notwithstanding the verdict on Jury Charge Question Numbers 21 and 22.<br /><br /> A trial court may grant a judgment notwithstanding the verdict if there is no evidence to support one or more of the jury findings on issues necessary to liability. Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex. 1998); see also Tex. R. Civ. P. 301. In determining whether there is no evidence to support the jury verdict and thus uphold the judgment notwithstanding the verdict, we consider the evidence in the light most favorable to the verdict and reasonable inferences that tend to support it. Brown, 963 S.W.2d at 513.<br /><br /> Jury Charge Question Number 21 was predicated on the jury’s answers to Question Numbers 9 and 10. In Question Number 9, the jury answered that Seabury breached his fiduciary duties during the settlement of Havre v. Dunn. In Question Number 10, the jury answered affirmatively to the question “Was Gilbert Kerlin part of a conspiracy with F.W. Seabury to breach his fiduciary duties to the Juan Jose Balli grantors in the settlement of Havre v. Dunn that damaged the Juan Jose Balli grantors?” The Kerlin Group did not challenge the jury’s answers to Question Numbers 9 or 10.<br /><br /> The undisputed evidence shows that Kerlin took a three-day leave from the army and came to Texas between November 6, 1942 and November 9, 1942. His purpose in coming to Texas was to sign the settlement agreement in Havre v. Dunn, which had been negotiated by Seabury. Accepting the jury’s unchallenged answers that Seabury breached his fiduciary duty in the settlement of Havre v. Dunn and the jury’s finding that Kerlin conspired with Seabury to breach those fiduciary duties, Kerlin’s presence in Texas to consummate the Havre v. Dunn settlement is sufficient proof to result in an affirmative finding to Question Number 21. The Kerlin Group did not set forth any contrary evidence.<br /><br /> We find no evidence in the record to support the jury’s answer to Question Number 21. Accordingly, we affirm the trial court’s order granting the Balli Grantors’ motion for judgment notwithstanding the verdict on Question Number 21.<br /><br /> Similarly, Question Number 22 was predicated on Question Number 13. In Question Number 13, the jury found that during the settlement of Havre v. Dunn, Kerlin failed to comply with his fiduciary duty to each of the Juan Jose Balli grantors arising out of the royalty reservations in deeds conveyed. By implication, Kerlin’s presence in Texas to consummate the settlement of Havre v. Dunn necessarily satisfies the question of “presence” in Question Number 22.<br /><br /> Again, the record contains no evidence to support the jury’s answer to Question Number 22. Accordingly, we affirm the trial court’s order granting the Balli Grantors’ motion for judgment notwithstanding the verdict on Question Number 22. The second sub-issue of the Kerlin Group’s seventh issue is overruled.<br /><br />C. Evidence<br /><br /> In its ninth issue, the Kerlin Group contends, in part, that the trial court erred in admitting evidence of a settlement proposal. In response, the Balli Claimants argue that the Kerlin Group waived objection to this evidence because the settlement proposal was later offered into evidence and was admitted without objection.<br /><br /> As a general rule, error in the admission of testimony is deemed harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984); Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242-43 (Tex. App.–Corpus Christi 1994, writ denied). Even though an objection to evidence is properly made, prior or subsequent presentation of essentially the same evidence without objection waives error. Atkinson Gas Co., 878 S.W.2d at 242-43; Celotex Corp. v. Tate, 797 S.W.2d 197, 201 (Tex. App.--Corpus Christi 1990, no writ); Trailways, Inc. v. Clark, 794 S.W.2d 479, 488 (Tex. App.--Corpus Christi 1990, writ denied).<br /><br /> However, a seemingly contradictory presumption has also been generally accepted that, when a party makes a proper objection to the introduction of certain testimony by a witness and is overruled, he is entitled to assume that the judge will make the same ruling as to other offers of similar evidence, and he is not required to repeat the objection. Atkinson Gas Co., 878 S.W.2d at 242-43. This is particularly true when the party has obtained a running objection concerning similar evidence elicited from the same witness. Id.<br /><br /> This Court has concluded that the determination of whether a prior objection is sufficient to cover a subsequent offer of similar evidence depends upon a case-by-case analysis, based on such considerations as the proximity of the objection to the subsequent testimony, which party has solicited the subsequent testimony, the nature and similarity of the subsequent testimony as compared to the prior testimony and objection, whether the subsequent testimony has been elicited from the same witness, whether a running objection was requested or granted, and any other circumstances which might suggest why the objection should not have to be reurged. Id.<br /><br /> The settlement proposal was offered by the Balli Claimants during Kerlin’s examination. A timely objection was raised, but the trial court overruled the objection. The Kerlin Group then requested a running objection to the evidence. Later, during the cross-examination of Kerlin, the Kerlin Group introduced the settlement proposal and referred to it at length. The Kerlin Group recited almost the entirety of the settlement proposal and accompanying cover letter. Kerlin never refuted the validity of the contents of the document. The Kerlin Group subsequently introduced other documents related to the settlement negotiations, which may have been otherwise inadmissible under the same grounds of objection.<br /><br /> We hold that the Kerlin Group waived its objection to the settlement proposal when it later introduced the same settlement proposal into evidence. We overrule that part of the Kerlin Group’s ninth issue relating to the trial court’s admission of the settlement proposal into evidence.<br /><br />D. Charge Error<br /><br /> In its fifth, seventh, eighth, ninth, and twelfth issues, the Kerlin Group contends the trial court erred in submitting and refusing to submit certain charge questions to the jury.<br /><br /> The goal of the charge is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). Toward that end, the trial judge is accorded broad discretion so long as the charge is legally correct. Id. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Kajima Int'l v. Formosa Plastics Corp., 15 S.W.3d 289, 291 (Tex. App.–Corpus Christi 2000, pet. denied).<br /><br />1. Estoppel by Deed<br /><br /> In its fifth issue, the Kerlin Group contends the trial court erred in submitting Jury Charge Question Number 1 to the jury. Question Number 1 asked the jury, in part, “Is Gilbert Kerlin estopped to deny the validity of the eleven Balli deeds and the royalty reservations contained therein?”<br /><br /> An appellant’s brief must contain a clear and concise argument for the contentions made, with appropriate citations to relevant authority and to the record. Tex. R. App. P. 38.1(h). Failure to cite authority in support of an issue on appeal waives the complaint. In re Barr, 13 S.W.3d 525, 555 (Tex. 1998). Because the Kerlin Group failed to support this contention with citations to authority or the record, we hold it is waived.<br /><br />2. Breach of Fiduciary Duty<br /><br /> Also in its fifth issue, the Kerlin Group contends the trial court erred in submitting Jury Charge Question Number 6 to the jury.<br /><br /> In Question Number 6, the trial court instructed the jury that Gilbert Kerlin, as owner of the executive rights, owed a fiduciary duty to the Balli Grantors and their heirs, as nonparticipating royalty interest holders. The jury was asked whether Gilbert Kerlin and the P.I. Corporation failed to comply with that fiduciary duty. The jury answered “yes” to Question Number 6. However, the jury found no damages arising from the failure to comply.<br /><br /> We have previously held that the trial court did not err in concluding that an executive rights owner owes a fiduciary duty to nonparticipating royalty interest holders. Accordingly, we hold the trial court did not abuse its discretion in submitting Question Number 6 to the jury.<br /><br />3. Evidence of Settlement<br /><br /> In its ninth issue, the Kerlin Group contends the trial court erred in submitting Question Number 14 to the jury because it was a direct comment on the weight of the evidence. We hold that the Kerlin Group has waived this issue on two grounds.<br /><br /> First, despite its claim to the contrary, the Kerlin Group did not object to the submission of this question on the ground that it commented on the weight of the evidence. A complaining party must object to the submission of an erroneous question, instruction, or definition. Tex. R. Civ. P. 274; Morales v. Morales, 98 S.W.3d 343, 346 (Tex. App.–Corpus Christi 2003, pet. denied). Failure to raise an objection to Question Number 14 on the grounds specified on appeal constitutes waiver. See Tex. R. Civ. P. 274; Morales, 98 S.W.3d at 346.<br /><br /> Secondly, the Kerlin Group failed to make a discernable argument regarding this issue. Failure to adequately brief an issue results in waiver. See Tex. R. App. P. 38.1(h); see also Smith v. Smith, 112 S.W.3d 275, 280 (Tex. App.–Corpus Christi 2003, pet. denied).<br /><br />4. Fraudulent Concealment<br /><br /> In its fifth and eighth issues, the Kerlin Group also contends the trial court erred in submitting questions regarding the issue of fraudulent concealment to the jury. The Kerlin Group asserts that the Balli Claimants should have submitted an issue regarding whether the Ballis knew or should have known that they might have a right of action, which is necessarily a component to a fraudulent concealment defense. In support, the Kerlin Group cites Advent Trust Co. v. Hyder, 12 S.W.3d 534 (Tex. App.–San Antonio 1999, pet. denied).<br /><br /> Advent Trust v. Hyder arose out of an oil and gas dispute. A complaint was filed with the Texas Railroad Commission that resulted in the complaining party’s settlement and surrender of interests in an oil and gas field. Id. at 537. The complainant later filed a claim against the oil and gas operator for recovery of the value of the interest surrendered. Id. at 538. The complainant alleged that the operator, who was responsible for filing required reports with the Texas Railroad Commission, negligently or fraudulently had failed to file required reports, thereby misrepresenting the nature and extent of gas in the surrendered fields. Id. The responding party answered that all claims were barred by limitations. Id. The complainant responded that the discovery rule, fraudulent concealment, and equitable estoppel applied. Id. A jury found for the complainant, but the court of appeals reversed. Id.<br /><br /> The complainant submitted questions to the jury regarding fraud, proximate cause, and damages. Id. at 541. Premised on affirmative responses to those questions, the charge asked, “On what date do you find from a preponderance of the evidence that Plaintiffs discovered, or through the exercise of reasonable care and diligence should have discovered, the fraud of . . . Ginther?” Id. at 542. The same question followed questions regarding breach of contract, negligence, and negligent misrepresentation. Id. Questions regarding fraudulent concealment were not submitted to the jury. Id. The court of appeals concluded that the questions submitted to the jury involved the substantive tort of fraud, not fraudulent concealment. Id. Thus, the respondent was not on notice of the possibility of a deemed finding on fraudulent concealment or equitable estoppel. Id.<br /><br /> The jury charge questions concerning fraudulent concealment in this case differ significantly from the charge questions in Advent Trust v. Hyder. In this case, Jury Charge Question Numbers 24 and 25 expressly concern the issue of fraudulent concealment. In Question Number 24, the jury found that Gilbert Kerlin and P.I. Corporation fraudulently concealed the fact that from January 1, 1966 through February 8, 1991, they received royalty payments that belonged to the Balli Grantors and their heirs. In Question No. 25, the jury found that from November 9, 1942 through February 8, 1991, Gilbert Kerlin fraudulently concealed the facts, details, and circumstances surrounding the settlement of the Havre v. Dunn case from the Balli Grantors and their heirs. In both charge questions, the trial court instructed the jury:<br /><br /> You are instructed that “fraudulent concealment” means actual suppression of the truth or failure to disclose where there is a duty to disclose. A duty to disclose arises in four situations: 1) Where there is a fiduciary relationship, 2) when one voluntarily discloses information, the whole truth must be disclosed, 3) when one makes a representation, new information must be disclosed when that new information makes the earlier representation misleading or untrue, and 4) when one makes a partial disclosure and conveys a false representation.<br /><br /> <br /><br /> We conclude that the charge questions are sufficient to have placed the Kerlin Group on notice of the possibility of a deemed finding of fraudulent concealment. It was, therefore, the Kerlin Group’s duty to raise an objection to the proposed charge questions. Because the Kerlin Group raised no objection comporting with the issues now raised on appeal, we hold they are waived. Tex. R. Civ. P. 274; Morales, 98 S.W.3d at 346.<br /><br />5. Attorney Fees<br /><br /> In its twelfth issue, the Kerlin Group contends the trial court erred in submitting Jury Charge Question Number 4 because it failed to segregate the causes of action for which attorney fees are recoverable from those in which attorney fees were not recoverable.<br /><br /> When one or more causes of action for which attorney fees are not permitted by statute or contract are alleged in a petition and are investigated and pursued at trial, it is incumbent upon the party asserting those causes of action to segregate them from those for which attorney fees can be recovered. Aetna Cas. & Sur. v. Wild, 944 S.W.2d 37, 40-41 (Tex. App.–Amarillo 1997, writ denied). A recognized exception to this duty to segregate arises when the attorney fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their “prosecution or defense entails proof or denial of essentially the same facts.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991). When the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are “intertwined to the point of being inseparable,” the party suing for attorney fees may recover the entire amount covering all claims. Id.<br /><br /> After reviewing the entire record, we find that the facts of this case are deeply intertwined and conclude it is very difficult to separate which set of facts or circumstances support the individual causes of action. We also note that the Kerlin Group did not make an attempt to demonstrate the factual distinctions. Accordingly, we cannot say that the trial court abused its discretion by submitting Question Number 4 to the jury.<br /><br />6. Conspiracy to Commit Fraud, Laches, and other issues<br /><br /> In its fifth issue, the Kerlin Group also contends the trial court erred in submitting jury charge questions on conspiracy to commit fraud, conspiracy to commit breach of fiduciary duty, laches, and damages. We hold this issue is waived because the Kerlin Group provided no argument in support of these contentions. Tex R. App. P. 38.1(h); see Smith, 112 S.W.3d at 280.<br /><br /> We overrule the Kerlin Group’s fifth, seventh, eighth, ninth, and twelfth issues as they relate to the jury charge.<br /><br />E. Legal and Factual Sufficiency<br /><br /> In several issues, the Kerlin Group contends the evidence is legally and factually insufficient to support the jury’s answers to certain Jury Charge Questions.<br /><br /> When we review a “no evidence” or legal sufficiency of the evidence issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). A no evidence issue will be sustained when the record discloses that: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex. 2003). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con-Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.<br /><br /> When we review an "insufficient evidence" or factual sufficiency of the evidence issue, we consider, weigh and examine all of the evidence which supports or undermines the jury's finding. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We review the evidence, keeping in mind that it is the jury's role, not ours, to judge the credibility of the witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761-62 (Tex. 2003). We then set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242; see Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).<br /><br />1. Question No. 14<br /><br /> In its tenth issue, the Kerlin Group contends the evidence is legally and factually insufficient to support the jury’s answer to Jury Charge Question Number 14. Question Number 14 asked the jury:<br /><br />During the settlement of Havre v. Dunn, did Gilbert Kerlin acquire, in his name, 7,500 acres of land on Padre Island for the benefit of the Juan Jose Balli grantors that he did not share with them?<br /><br /> <br /><br />The trial court instructed the jury:<br /><br />In answering this question, you are instructed that any evidence referring to 7,444 acres shall be treated as 7,500 acres.<br /><br /> <br /><br />The jury answered “yes” to Question Number 14.<br /><br />a. Legal Sufficiency<br /><br /> The Kerlin Group argues generally that there is no evidence in the record that Gilbert Kerlin received any property intended for the Ballis. In response, the Balli Claimants cite portions of the settlement proposal presented by Seabury on June 9, 1942. In the proposal, Seabury stated:<br /><br />Juan Jose Balli owned one-half and one-seventh of the other half of the Island, a total of 77,264 acres as per Mr. Boyles’ survey. He conveyed to Santiago Morales the north half of the Island plus one-half league, which on the same figures would make 69,820 acres. The difference, 7,444 acres, is the acreage that never was divested out of Juan Jose Balli on any theory of the case.<br /><br /> <br /><br />Seabury then stated:<br /><br /> <br /><br />Gilbert Kerlin and Associates want this to comply with their commitments with the heirs of Juan Jose Balli, whose title is now in Gilbert Kerlin, trustee.<br /><br /> <br /><br />In describing a 20,000 acre tract requested in the settlement, the settlement proposal stated that 7,500 acres was included in that tract “for the Juan Jose interest.” On November 9, 1942, a stipulation of settlement was filed with the Havre v. Dunn court. The stipulation provides that Gilbert Kerlin received a 20,000 acre tract in the southern division of Padre Island, together with 1,000 mineral acres in the northern division of the island. On December 12, 1942, Davenport wrote to Eckhardt:<br /><br />Seabury has agreed to avoid, if possible, giving the Ballis any sort of instrument which might be so recorded as to cast a cloud upon our title; and in any event, to give them nothing in writing which we have not previously seen.<br /><br /> <br /><br />Conflicting interpretations of the settlement proposal and letters between opposing counsel were argued to the jury.<br /><br /> We find more than a scintilla of evidence was presented at trial from which the jury could conclude that Gilbert Kerlin acquired 7,500 acres of land for the benefit of the Balli Grantors, which he did not share with them. Accordingly, we hold the evidence is legally sufficient to support the jury’s answer to Jury Charge Question Number 14.<br /><br />b. Factual Sufficiency<br /><br /> The Kerlin Group argues generally that the evidence in the record is factually insufficient to support the jury’s answer to Jury Charge Question Number 14. We note that the Kerlin Group has failed to cite any evidence from the record contrary to the jury finding on Jury Charge Question Number 14.<br /><br /> An appellant bears the burden of discussing its assertion of error and pointing the appellate court to the portions of the record that support its complaint. Barham v. Turner Constr. Co., 803 S.W.2d 731, 740 (Tex. App.–Dallas 1990, writ denied). A court of appeals has no duty to search a voluminous record without guidance from appellant to determine whether an asserted error is valid. Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 305 (Tex. App.–Houston [14th Dist.] 1995, no writ). Because the Kerlin Group has cited no evidence in support of its factual sufficiency challenge to the jury’s answer to Jury Charge Question Number 14, we hold it is waived. See id. We overrule the Kerlin Group’s tenth issue.<br /><br />2. Waiver of Sufficiency Challenges<br /><br /> In an additional issue, the Kerlin Group contends the evidence is legally and factually insufficient to support the jury’s findings on the Balli Claimants’ conspiracy claims against Gilbert Kerlin. However, we are unable to discern any argument correlating with the issue set out. In accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Because the issue raised is not adequately briefed, we will not address it. See Smith, 112 S.W.3d at 280.<br /><br /> In its eighth issue, the Kerlin Group also contends the evidence is legally insufficient to support the jury’s finding of fraudulent concealment. The Kerlin Group did not support this contention with references to the record or citation of authority. Accordingly, we hold that the Kerlin Group waived this portion of its eighth issue. See Tex. R. App. P. 38.1(h); Smith, 112 S.W.3d at 280.<br /><br /> <br /><br />F. Election of Remedies<br /><br /> In an additional issue, the Kerlin Group contends the trial court erred by: (1) failing to require that the Balli Claimants elect theories of recovery, and (2) failing to modify, reform, and correct the judgment accordingly.<br /><br /> The election of remedies doctrine may constitute a bar to relief when (1) one successfully exercises an informed choice (2) between two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996) (quoting Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850-52 (Tex. 1980)). An election of remedies does not occur unless a party having two or more inconsistent remedies pursues one of them to the exclusion of the others. Fina Supply v. Abilene Nat'l Bank, 726 S.W.2d 537, 541 (Tex. 1987) (citing Bocanegra, 605 S.W.2d at 851). The doctrine is designed to prevent a party who has obtained a specific form of remedy from obtaining a different and inconsistent remedy for the same wrong. Id. The doctrine is not favored, and its scope should not be extended. Am. Sav. & Loan Ass’n of Houston v. Musick, 531 S.W.2d 581, 588 (Tex. 1975).<br /><br /> The Kerlin Group argues that the election of remedies doctrine bars recovery of damages for unpaid royalty interests and recovery of damages for the sale of the surface rights to the 7,500 acres. However, each of these damages arise out of separate causes of action for separate wrongs. Accordingly, the election of remedies doctrine is not applicable as argued by the Kerlin Group. Therefore, we overrule this additional issue.<br /><br />G. Additur of Damages<br /><br /> In its eleventh issue, the Kerlin Group complains that the trial court added an additional amount of damages after it received the jury’s answer to Jury Charge Question Number 14. The Kerlin Group asserts this is error because no question of damages was submitted in conjunction with Question Number 14.<br /><br /> In response, the Balli Claimants argue that the judgment of partial accounting against Kerlin for the wrongfully retained rentals was an order of disgorgement, not an additur. They assert that the issue of profit disgorgement by a breaching fiduciary does not present a fact question and is not an issue on which a jury question is required. Furthermore, the Balli Claimants point out that the leases executed by Kerlin for the 20,000 acres received in the Havre settlement are in evidence. The leases were admitted in connection with the Balli Claimants’ request for accounting.<br /><br /> After the trial court received the jury’s answers to the Jury Charge Questions, the Balli Claimants asked the court for an order of accounting, profit disgorgement, and imposition of a constructive trust. The trial court denied the motion for accounting and profit disgorgement, but determined, based on the jury’s verdict, that the Balli Claimants were entitled to a constructive trust on mineral interests in certain lands.<br /><br /> A constructive trust is an equitable remedy used to prevent unjust enrichment. Teve Holdings, Ltd. v. Jackson, 763 S.W.2d 905, 908 (Tex. App.–Houston [1st Dist.] 1988, no writ). Although a litigant has the right to a trial by jury in an equitable action, only ultimate issues of fact are submitted for jury determination. State v. Tex. Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979). As a general rule, the jury does not determine the expediency, necessity, or propriety of equitable relief. Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999); Tex. Pet Foods, Inc., 591 S.W.2d at 803; Alamo Title Co. v. San Antonio Bar Ass’n, 360 S.W.2d 814, 816 (Tex. Civ. App.–Waco 1962, writ ref'd n.r.e.). Consistent with the rule, whether a constructive trust should be imposed must be determined by a court based on the equity of the circumstances. Burrow, 997 S.W.2d at 245. Its scope and application, within some limitations, is generally left to the discretion of the court imposing it. Wheeler v. Blacklands Prod. Credit Ass’n, 627 S.W.2d 846, 849 (Tex. App.–Fort Worth 1982, no writ).<br /><br /> We conclude the trial court committed no error in the imposition of a constructive trust and the damages emerging out of the trust. As the trial court stated in its modified final judgment, the constructive trust was premised on the fact findings of the jury. We hold the constructive trust was not a post-verdict additur of damages. The Kerlin Group’s eleventh issue is overruled.<br /><br />III. The Balli Claimants’ Issues on Appeal<br /><br /> The Balli Claimants raise two issues on appeal. They complain of the trial court’s refusal: (1) to order an accounting and disgorgement of all profits and (2) to award prejudgment interest.<br /><br />A. Accounting and Disgorgement of all Profits<br /><br /> In their first issue, the Balli Claimants contend the trial court erred in refusing to issue an order for equitable accounting and disgorgement of all profits made as a result of Kerlin’s breach of fiduciary duty. The Balli Claimants assert a claim of equity requiring a determination of what monies the Kerlin Group received from the 7,500 acres that Gilbert Kerlin took as trustee for the Balli Grantors but never shared. The Balli Claimants allege that the Kerlin Group received additional monies attributable to the 7,500 acres in the form of delay rentals and bonuses under various oil and gas and agricultural leases executed on the property.<br /><br /> An action for accounting may be a suit in equity, or it may be a particular remedy sought in conjunction with another cause of action. Michael v. Dyke, 41 S.W.3d 746, 754 (Tex. App.–Corpus Christi 2001, no pet.); compare T.F.W. Mgmt. v. Westwood Shores Prop. Owners Ass'n, 79 S.W.3d 712, 717 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) (treating an accounting as a cause of action based on alleged contractual obligations and principles of equity) with Hutchings v. Chevron U.S.A., Inc., 862 S.W.2d 752, 762 (Tex. App.–El Paso 1993, writ denied) (treating accounting as an equitable remedy for determining amount of damages). The equitable remedy of an accounting may apply under various circumstances. T.F.W. Mgmt., 79 S.W.3d at 717; Southwest Livestock & Trucking Co. v. Dooley, 884 S.W.2d 805, 809 (Tex. App.–San Antonio 1994, writ denied). The decision to grant an accounting is within the discretion of the trial court. Michael, 41 S.W.3d at 754; Dooley, 884 S.W.2d at 810. In matters of equity, a trial court abuses its discretion if it rules: (1) arbitrarily, unreasonably, or without regard to guiding legal principles; or (2) without supporting evidence. Welder v. Green, 985 S.W.2d 170, 180 (Tex. App.–Corpus Christi 1998, pet. denied).<br /><br /> An equitable accounting is proper when the facts and accounts presented are so complex that adequate relief may not be provided for at law. Hutchings, 862 S.W.2d at 762 (citing Richardson v. First Nat'l Life Ins. Co., 419 S.W.2d 836, 838 (Tex. 1967)); Michael, 41 S.W.3d at 754. When a party can obtain adequate relief at law through the use of standard discovery procedures, such as requests for production and interrogatories, a trial court does not err in not ordering an accounting. T.F.W. Mgmt., 79 S.W.3d at 718. Generally, an accounting is appropriate when there was a close a fiduciary relationship between the parties. Richardson, 419 S.W.2d at 838.<br /><br /> The case at hand demonstrates the circumstances necessary to qualify for an equitable accounting. The trial court correctly determined that Kerlin, as executive interest holder, owed a fiduciary duty to the Balli Grantors. The jury found that Kerlin had breached that duty. However, regular discovery practices are inadequate to determine the amount of profit Kerlin received as a result of this breach; the Kerlin Group denies possessing the records necessary to account for profits through ordinary discovery. The Balli Claimants could not obtain adequate relief at law through use of other legal procedures. Under the standards thus established, we conclude that the trial court abused its discretion by denying the imposition of an accounting. We sustain the Balli Claimants’ first issue.<br /><br />B. Prejudgment Interest<br /><br /> In their second issue, the Balli Claimants contend the trial court erred by refusing to award prejudgment interest on the $1,092,000 withheld by Gilbert Kerlin from the date of sale of the surface estate interests in Padre Island until the date the Balli Claimants filed suit.<br /><br /> Prejudgment interest is “compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.” Johnson & Higgins, 962 S.W.2d at 528. There are two legal sources for an award of prejudgment interest: (1) general principles of equity and (2) an enabling statute. Id.<br /><br /> In Johnson & Higgins v. Kenneco Energy, the Supreme Court of Texas held that, “under the common law, prejudgment interest begins to accrue on the earlier of (1) 180 days after the date a defendant receives written notice of a claim or (2) the date suit is filed." Id. at 531. The Balli Claimants assert that Johnson & Higgins v. Kenneco Energy should not apply to breach of fiduciary duty cases. In this case, they argue, the Kerlin Group was enriched by the breach of fiduciary duty from the day of the breach.<br /><br /> The Houston Fourteenth Court of Appeals recently addressed the issue of whether prejudgment interest should be calculated from the date a breach occurred, rather than under the standard set out in Johnson & Higgins v. Kenneco Energy. Lee v. Lee, 47 S.W.3d 767 (Tex. App.–Houston [14th Dist.] 2001, pet. denied). The Lee court held that despite prior holdings that prejudgment interest be paid from the date of the breach in breach of fiduciary duty cases, the supreme court had declared in Johnson & Higgins v. Kenneco Energy that the standard announced in that case for the award of prejudgment interest applied to all cases not falling within the statutory guidelines for prejudgment interest. Lee, 47 S.W.3d at 800. The Lee court interpreted the language in Johnson & Higgins v. Kenneco Energy to impliedly overrule all contrary cases. Id. We agree with our sister court and hold that there is no recognized exception for the imposition of prejudgment interest in breach of fiduciary duty cases. We overrule the Balli Claimants’ second issue.<br /><br />IV. Conclusion<br /><br /> We overrule all of the Kerlin Group’s issues on appeal. We sustain the Balli Claimants’ first issue and overrule their second issue.<br /><br /> We reverse that part of the trial court’s judgment denying an equitable accounting and remand that issue to the trial court with instructions to order an equitable accounting. We affirm the remainder of the trial court’s judgment.<br /><br /> <br /><br /> FEDERICO G. HINOJOSA<br /><br /> Justice<br /><br /><br />Opinion delivered and filed this the<br /><br />9th day of June, 2005.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-2397839470715601360?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com0tag:blogger.com,1999:blog-37792450.post-1175758224931316282007-04-05T00:12:00.000-07:002007-04-05T00:30:25.213-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /> Send this document to a colleague Close This Window<br /><br /><br /><br /><br /><br />NUMBER 13-00-145-CV<br /><br />COURT OF APPEALS<br /><br />THIRTEENTH DISTRICT OF TEXAS<br /><br />CORPUS CHRISTI<br /><br /><br />WAL-MART STORES, INC. , Appellant,<br /><br />v.<br /><br /><br />KARL W. COCKRELL , Appellee.<br /><br />On appeal from the 23rd District Court<br /><br />of Matagorda County, Texas.<br /><br />O P I N I O N<br /><br />Before Chief Justice Valdez and Justices Dorsey and Rodriguez<br /><br />Opinion by Justice Dorsey<br /><br />Wal-Mart Stores, Inc., appeals from a judgment, following a jury verdict, finding that it had assaulted and falsely imprisoned a suspected shoplifter, Karl Cockrell. Based upon these findings the jury awarded Cockrell $300,000 for past mental anguish. The question raised on appeal is whether the evidence is legally and factually sufficient to support the verdict. We affirm.<br /><br />I. Facts<br /><br /><br />On November 6, 1996, Karl Cockrell and his parents went to the layaway department at a Wal-Mart store. Cockrell stayed for about five minutes and decided to leave. As he was going out the front door Raymond Navarro, a loss-prevention officer, stopped him and requested that Cockrell follow him to the manager's office. Once in the office Navarro told him to pull his pants down. Cockrell put his hands between his shorts and underwear, pulled them out, and shook them. Nothing fell out. Next Navarro told him to take off his shirt. Cockrell raised his shirt, revealing a large bandage which covered a surgical wound on the right side of his abdomen. Cockrell had recently had a liver transplant. Navarro asked him to take off the bandage, despite Cockrell's explanation that the bandage maintained a sterile environment around his surgical wound. On Navarro's insistence Cockrell took down the bandage, revealing the wound. Jay Garrison and Nancy Suchomel, both Wal-Mart employees, were in the office when Cockrell lifted his shirt. Afterwards Navarro apologized and let Cockrell go.<br /><br />II. Discussion<br /><br /><br />By issues one and two Wal-Mart attacks the legal and factual sufficiency of the evidence to support the jury's findings that it had assaulted and falsely imprisoned Cockrell. In considering a "no evidence," "insufficient evidence," or an "against the great weight and preponderance" point of error we follow the well-established tests set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex. 1985); Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400 (Tex. 1981); Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L. Rev. 361 (1960).<br /><br />A. False Imprisonment<br /><br /><br />The elements of false imprisonment are: (1) a willful detention; (2) performed without consent; and (3) without the authority of law. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A person may falsely imprison another by acts alone or by words alone, or by both, operating on the person's will. J.C. Penney Co. v. Duran, 479 S.W.2d 374, 380 n.9 (Tex. Civ. App.-San Antonio 1972, writ ref'd n.r.e.).<br /><br />In a false-imprisonment case if the alleged detention was performed with the authority of law then no false imprisonment occurred. Wal-Mart Stores, Inc. v. Resendez, 962 S.W.2d 539, 540 (Tex. 1998). The plaintiff must prove the absence of authority in order to establish the third element of a false-imprisonment cause of action. Sears, Roebuck & Co. v. Castillo, 693 S.W.2d 374, 375 (Tex. 1985) (per curiam).<br /><br />A case which helps to decide this issue is H.E. Butt Grocery Co. v. Saldivar, 752 S.W.2d 701 (Tex. App.-Corpus Christi 1988, no writ). In that case Saldivar was shopping at an H.E.B. store when a clerk told Isabel Lopez, an assistant manager, that "a lady" had taken a pair of sunglasses and removed the sales tag. Lopez did not see Saldivar take the sunglasses. As Saldivar walked outside the store, an armed security guard stopped her, accused her of theft, and told her to come to a back room with him. At that point Lopez approached her and displayed a sales tag she had found which she claimed Saldivar had removed from the sunglasses. The security guard guided Saldivar back into the front of the store where she remained for several minutes. She was released after the manager determined that she had not stolen the sunglasses.<br /><br />Saldivar sued H.E.B. for false imprisonment. At trial, she testified that after she and the security guard entered the store she did not leave because she "didn't feel like [she] could." She stated that she never went near the sunglass display. A jury returned a verdict in her favor. We affirmed, finding that the facts supported a willful detention without consent and that a rational jury could have found that H.E.B. did not "reasonably believe" a theft had occurred and therefore lacked authority to detain her. Id. at 702-04.<br /><br />Analysis<br /><br /><br />1. Willful Detention and Consent<br /><br />Here Ray Navarro, the loss-prevention officer, testified that Cockrell was in his custody at the point when he escorted him to the office. When Cockrell's counsel asked Navarro, "Was it your decision as to when he [Cockrell] could leave?" he replied, "I guess." Navarro testified that he probably would have let Cockrell leave after seeing that he did not have anything under his shirt.<br /><br />Cockrell testified that he was not free to leave when Navarro stopped him and that Navarro was not going to let him go. He also testified that Navarro and two other Wal-Mart employees accompanied him to the office. When counsel asked Cockrell why he did not leave the office, he replied, "Because the impression I was getting from him, I wasn't going no place."<br /><br />We conclude that these facts are sufficient to support the jury's finding that Cockrell was willfully detained without his consent. See Saldivar, 752 S.W.2d at 702-03; see also Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 521 (Tex. App.-San Antonio 1996, writ denied) (customer's testimony that employee grabbed her as she walked out of store and subjected to a search supported jury's finding of willful detention).<br /><br />2. Authority of Law.<br /><br />Question One asked the jury whether Wal-Mart falsely imprisoned Karl Cockrell. "Falsely imprison" was defined to mean "willfully detaining another without legal justification. . . ." The court instructed the jury on the "shopkeeper's privilege." This instruction stated: "when a person reasonably believes that another has stolen or is attempting to steal property, that person has legal justification to detain the other in a reasonable manner and for a reasonable time to investigate ownership of the property." Thus the jury could only find false imprisonment if it found no justification for Wal-Mart's actions.<br /><br />A. Reasonable Belief<br /><br />Neither Raymond Navarro nor any other store employee saw Cockrell steal merchandise. However Navarro claimed he had two reasons to suspect Cockrell of shoplifting. First he said that Cockrell was acting suspiciously, because he saw him in the women's department standing very close to a rack of clothes and looking around. Later he saw Cockrell looking around and walking slowly by the cigarette aisle and then "pass out of the store." Second he saw a little "bulge" under Cockrell's shirt.<br /><br />Cockrell testified that he had done "nothing" and that there was "no way" a person could see anything under his shirt. We conclude that a rational jury could have found that Navarro did not "reasonably believe" a theft had occurred and therefore lacked authority to detain Cockrell. See Saldivar, 752 S.W.2d at 704.<br /><br />B. Reasonable Manner<br /><br />The extent to which Wal-Mart searched Cockrell compels us to address the reasonable manner of the detention. The "shopkeeper's privilege" expressly grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner. Tex. Civ. Prac. & Rem. Code Ann. § 124.001 (Vernon 1997 & Supp. 2001) (emphasis added).<br /><br />At least one appellate court has stated that when a store employee has probable cause to arrest a person for shoplifting, the employee may do so and make a "contemporaneous search" of the person and the objects within that person's control. See Raiford v. The May Dep't Stores Co., 2 S.W.3d 527, 531 (Tex. App.-Houston [14th Dist.] 1999, no pet.). As authority for this precept the Raiford Court relied in part on Douglas v. State, 695 S.W.2d 817 (Tex. App.-Waco 1985, pet. ref'd). In that case a private citizen, Melvin Jodie, discovered that someone had burglarized his home and stolen his property. A police officer told Jodie that he thought he knew who had committed the crime and that the suspect lived in a house on a certain street. Jodie went to the house, found Douglas with the stolen property, and delivered him into the officer's custody. Douglas was convicted of burglary and on appeal asserted that Jodie's citizen's arrest was illegal. The appellate court stated that article 18.16 of the Texas Code of Criminal Procedure authorized a private citizen to make a warrantless arrest of a thief when the stolen property is found in the thief's possession. Id. at 820. The court further stated that because Douglas's warrantless arrest was lawful, Jodie was authorized to conduct a contemporaneous search of his person and of the area within Douglas's immediate control. Id.<br /><br />We therefore hold that when a store employee has probable cause to arrest a person for shoplifting, the employee may do so and make a contemporaneous search of the person and objects within that person's immediate control. See Raiford, 2 S.W.3d at 531; Douglas, 695 S.W.2d at 820. The contemporaneous search is limited to instances in which a search of the body is reasonably necessary to investigate ownership of property believed stolen. Accordingly Navarro's contemporaneous search was unreasonable in scope, because he had no probable cause to believe that Cockrell had hidden any merchandise under the bandage. Removal of the bandage compromised the sterile environment surrounding the wound. Having found the evidence sufficient with respect to each of the essential elements of false imprisonment we overrule issue one.<br /><br />B. Assault<br /><br /><br />Question Two asked whether Wal-Mart assaulted Cockrell. The jury answered affirmatively. The trial court instructed the jury that a person commits an assault "if he intentionally or knowingly causes physical contact with another, when he knows or should reasonably believe that the other will regard the contact as offensive or provocative." (1) Cockrell's testimony was that as he was going out the outer set of front doors Navarro put his hands on his back and shoulder and "twisted" him around. He thought that Navarro was going to rob him. Navarro did not believe that he had touched Cockrell. We conclude that a rational jury could find that Navarro knew or should have reasonably believed that Cockrell would regard the contact as offensive or provocative. We hold that the evidence is legally and factually sufficient to support the jury's finding that Wal-Mart assaulted Cockrell. We overrule issue two.<br /><br />C. Mental Anguish.<br /><br /><br />By issue three Wal-Mart asserts that there is no evidence to support the $300,000 award for past mental anguish. Alternatively Wal-Mart argues that the award is against the great weight and preponderance of the evidence. We conclude that there is evidence to support the award.<br /><br />In Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) the court held that a mental anguish damages award requires evidence of a "high degree of mental pain and distress" that is "more than mere worry, anxiety, vexation, embarrassment, or anger." See Stevens v. National Educ. Ctrs., Inc., 11 S.W.3d 185, 185 (Tex. 2000). To recover for mental anguish a plaintiff must offer "direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' daily routine," or other evidence of "'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (quoting Parkway, 901 S.W.2d at 444). Courts should "closely scrutinize" awards of mental anguish damages. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997). There must also be evidence that the amount of mental anguish damages awarded is fair and reasonable, and the appellate court must perform a "meaningful evidentiary review" of the amount found. Saenz, 925 S.W.2d at 614.<br /><br />In Teledyne Exploration Co. v Klotz, 694 S.W.2d 109 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.) Teledyne entered upon Klotz's property and began bulldozing a sendero to facilitate running a seismic survey line. Klotz alleged that the bulldozing of his trees caused him mental anguish. We stated that the testimony that Klotz "was disorientated, shocked, felt violated and was choked up, is some evidence of mental anguish. . . ." Id. at 112.<br /><br />Evidence of Cockrell's mental anguish comes largely from the following testimony: Counsel asked Cockrell to describe his demeanor when he took down his bandage in the manager's office. He stated that Navarro:<br /><br />made me feel like I was scum, like . . . I was no part of society, that I had no say-so in the matter, that-just made me feel like a little kid on the block, like the bully beating the kid up and saying, "Well, I didn't catch you with nothing; but I'm going to humiliate him, twist a knife a little bit more into them."<br /><br />When counsel asked Cockrell how he felt when people looked at the scar he said, "Humiliated. . . . Your dignity has been stripped, been raped. All your rights have been-might as well have been taken away at that time because I had no rights back there. . . . [E]ven after it was over with, I felt like I had no rights."<br /><br />Cockrell testified that after Navarro let him go he was shaking, crying, nervous, scared, and looking around to make sure no one else was trying to stop him. When he got home his demeanor was about the same.<br /><br />Cockrell's parents saw him in the Wal-Mart store immediately after he was let go. They said he was upset, nervous, had tears in his eyes, and looked scared, pale, and badly shaken up. When he arrived at home he was crying, nervous, and still "pretty well shook up." His mother said that he stayed upset for a "long time" and would not go out of the house or go anywhere with his parents. She explained that<br /><br />he won't go out hardly. And if he does, he just goes with us. And he's always looking around if we go in a store, like he's looking over his shoulder to see if anybody's following him. And he's self-conscious of his stomach, and he feels like everybody knows it. . . .<br /><br />His father said that:<br /><br />Before this happened, he [Cockrell] and I, we were real good buddies. We went places together, you know, and we'd go to the Dairy Queen and we'd go down to the pawn shop and just shop around, you know. And after that, he was-he really didn't want to go nowhere. And I asked him one time, "Why?" He said, "I just don't want to go." And a lot of times-sometimes he might go and sometimes he might sit in the car and I go do what I want to do. But after that, he-he has just recently got out of it, really. . . . [W]e're a member of the lodge and he didn't even want to go to the lodge with me because he was so embarrassed that he might meet someone down there that would confront him with what had happened out there. And he just-recently, we'll go places together now since I retired and he's not been working for a long time. And just got buddy-buddy again, and he's finally come out of it some. But he's still not like he was.<br /><br />On cross-examination his father said that in 1997 he and Cockrell began going to the Dairy Queen sometimes once or twice a day to socialize.<br /><br />This is direct evidence of the nature, duration, and severity of Cockrell's mental anguish, thus establishing a substantial disruption in his daily routine. His mental pain and distress was more than mere worry, anxiety, vexation, embarrassment, or anger. See Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998) (plaintiffs' testimony that conduct "made me throw up . . . sick, nervous, mad," "hurt me a lot," and "my heart was broken. I was devastated, I felt physically ill" held "some evidence that conduct caused a "high degree of mental pain and distress."); Goodman v. Page, 984 S.W.2d 299, 306-07 (Tex. App.-Fort Worth 1998, pet. denied) (holding that testimony regarding stomach problems, harm to reputation, public and private humiliation, being devastated, feeling betrayed, and subjection to derogatory comments constituted high degree of mental pain and distress); America West Airlines, Inc. v. Tope, 935 S.W.2d 908, 917 (Tex. App.-El Paso 1996, no writ) (holding testimony that plaintiff was scared to death, devastated, frustrated, very angry and in therapy almost every day was sufficient to support damages for mental anguish); Teledyne Exploration Co. v Klotz, 694 S.W.2d 109, 112 (Tex. App.-Corpus Christi 1985, writ ref'd n.r.e.).<br /><br />We hold that the evidence is legally and factually sufficient to support the award of mental anguish damages. We overrule issue three.<br /><br />During oral argument Wal-Mart waived its complaint under issue four, which concerned the calculation of prejudgment interest.<br /><br />We AFFIRM the trial court's judgment.<br /><br /><br />______________________________<br /><br />J. BONNER DORSEY,<br /><br />Justice<br /><br />Publish .<br /><br />Tex. R. App. P. 47.3(b).<br /><br />Opinion delivered and filed<br /><br />this 29th day of November, 2001.<br /><br />1. The trial court did not instruct the jury on any defensive theories.<div class="blogger-post-footer"><img width='1' height='1' src='https://blogger.googleusercontent.com/tracker/37792450-117575822493131628?l=thirteenthcourtofappeals.blogspot.com' alt='' /></div>dannoynted1http://www.blogger.com/profile/14945400306838778051noreply@blogger.com1tag:blogger.com,1999:blog-37792450.post-1174975941185027042007-03-27T00:05:00.000-07:002007-03-27T00:12:21.436-07:00Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."<br /><br /> Send this document to a colleague Close This Window<br /><br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> <br /><br /> NUMBER 13-01-865-CV<br /><br /> <br /><br /> COURT OF APPEALS<br /><br /> <br /><br /> THIRTEENTH DISTRICT OF TEXAS<br /><br /> <br /><br /> CORPUS CHRISTI<br /><br /> <br /><br /> <br /><br /> IN THE MATTER OF K.E.M., JUVENILE<br /><br /> <br /><br /> <br /><br /> On appeal from the County Court at Law No. 5<br /><br /> of Nueces County, Texas.<br /><br /> <br /><br /> <br /><br /> O P I N I O N<br /><br /> <br /><br /> Before Chief Justice Valdez and Justices Rodriguez and Castillo<br /><br /> Opinion by Justice Castillo<br /><br />Appellant K.E.M. appeals denial of his application for writ of habeas corpus in which he sought release from an indeterminate commitment for attempted sexual assault, not to exceed appellant=s twenty-first birthday, to the Texas Youth Commission. Although not raised as an issue on appeal in appellant's brief, we find that the record presents a serious question of whether the juvenile court judge who presided over the habeas corpus proceeding was disqualified by reason of having served as counsel for the State in the underlying juvenile adjudication in his capacity as Nueces County Attorney.[1] We reverse and remand. <br /><br />We first examine the record, then discuss judicial disqualification as a jurisdictional issue and the circumstances that require our consideration of unassigned error. We find no direct precedent to guide our analysis of the standards we must apply to judicial disqualification in a juvenile adjudication. Hence, we survey the substantive law of judicial disqualification by reference to the available jurisprudence suggested by four sources of judicial disqualification standards: (1) Article V, Section 11 of the Constitution of the State of Texas;[2] (2) Rule 18b(1)(a) of the Texas Rules of Civil Procedure;[3] (3) Article 30.01 of the Texas Code of Criminal Procedure;[4] and (4) Canon 2A of the Texas Code of Judicial Conduct.[5] <br /><br /> I. THE RECORD<br /><br />The court at issue is a statutory county court with jurisdiction over juvenile proceedings under title 3 of the family code. Tex. Gov=t Code Ann. ' 25.1802(r)(1) (Vernon Supp. 2002). We take judicial notice that the current presiding judge of that court took the bench on October 1, 1999 and that before then he had held the office of Nueces County Attorney since 1993.[6] <br /><br />Texas law defines the duties of county attorneys:<br /><br />The county attorney shall attend the terms of court in his county below the grade of district court, and shall represent the State in all criminal cases under examination or prosecution in said county; and in the absence of the district attorney he shall represent the State alone and, when requested, shall aid the district attorney in the prosecution of any case in behalf of the State in the district court. He shall represent the State in cases he has prosecuted which are appealed. <br /><br /> <br /><br />Tex. Code. Crim. Proc. Ann. art. 2.02 (Vernon Supp. 2002).[7] <br /><br />Accordingly, the presiding judge of the juvenile court below was representing the State of Texas in his capacity as Nueces County Attorney on October 28, 1997, the date appellant=s mother reported to authorities her suspicions that appellant had sexually assaulted a younger brother. Child Protective Services and the Corpus Christi Police Department initiated an investigation. The State of Texas filed its AOriginal Petition for Adjudication@ against appellant, at the time thirteen years old, on December 11, 1997. The signature block on the original petition filed by the State of Texas shows the juvenile court judge=s printed name and identification as Nueces County Attorney and is signed by an assistant county attorney. On December 18, 1997 and again on December 22, 1997, that same assistant county attorney signed a ANotice of Setting@ as AAttorney for State.@ She also signed the AState=s First Amended Petition for Adjudication@ filed on January 13, 1998, in a signature block identical to the one printed on the original petition. The signature of the then-Nueces County Attorney does not appear on any documents in the record. <br /><br />On January 14, 1998, the State and appellant reached a plea bargain agreement, and appellant pled Atrue@ to attempted sexual assault. On that same date, the then-presiding judge approved and adopted the recommendations of a juvenile referee judge and committed appellant Ato the Texas Youth Commission for an indeterminate period of time not to exceed the time when he will be 21 years of age.@<br /><br />Thus, during the pendency of appellant=s juvenile adjudication proceedings, from initiation of the investigation in October of 1997 through adjudication in January of 1998, the presiding judge of the juvenile court below served as the Nueces County Attorney. By October 18, 1999, when appellant filed an initial application for writ of habeas corpus, the former Nueces County Attorney was the presiding judge of the juvenile court in which appellant filed the application. The juvenile court judge denied the first application without a hearing on November 16, 1999. On January 14, 2000, the judge signed an order denying appellant=s second application for writ of habeas corpus, filed on December 9, 1999, also without a hearing. On January 14, 2000, a visiting judge, sitting for a Nueces County district court, denied appellant=s third application for writ of habeas corpus.[8] On February 7, 2001, appellant filed a fourth application for writ of habeas corpus, again in the juvenile court below in which the judge presides. On August 3, 2001, the judge held an evidentiary hearing on the fourth application and on September 11, 2001, issued AFindings of Fact and Conclusions of Law and Order@ denying appellant=s fourth application.[9] This appeal ensued. <br /><br /> II. JUDICIAL DISQUALIFICATION AS A JURISDICTIONAL ISSUE<br /><br />In both criminal and civil cases, a judge=s disqualification arising from a constitutional or statutory provision Aaffects jurisdiction@ and renders the proceeding a nullity. Davis v. State, 956 S.W.2d 555, 558 (Tex. Crim. App. 1997); Lopez v. State, 57 S.W.3d 625, 627‑28 (Tex. App.BCorpus Christi 2001, pet. ref=d); see Buckholts Indep. Sch. Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982) (citations omitted) (AThe constitutional prohibition has long been held to make any order involving judicial discretion by a constitutionally disqualified judge >absolutely void,= >a nullity.=@). It follows that a criminal conviction is void if the judge was constitutionally or statutorily disqualified. Ex parte Vivier, 699 S.W.2d 862, 863-64 (Tex. Crim. App. 1985) (per curiam); Lopez, 57 S.W.3d at 628. <br /><br />Further, even if the parties consent, there can be no waiver of constitutional or statutory disqualification provisions. Ex parte Vivier, 699 S.W.2d at 863; Lee v. State, 555 S.W.2d 121, 124 (Tex. Crim. App. 1977); see Buckholts, 632 S.W.2d at 148) (A[D]isregard of the constitutional disqualification is error that can be raised at any point in the proceeding@). Therefore, we consider the issue of judicial disqualification in this case as unassigned error. <br /><br /> III. UNASSIGNED ERROR<br /><br />The court of criminal appeals has considered as unassigned error the question of a judge=s disqualification to preside over the trial of a criminal defendant because of the judge=s participation in the prosecution of the case as counsel for the State. Lee, 555 S.W.2d at 122; see Leal v. State, 626 S.W.2d 866, 867 (Tex. App.BCorpus Christi 1981, no pet.) (reversing and remanding on an unassigned error in a fatal variance between the indictment and the charge). Moreover, an appellate court may raise a judicial disqualification issue on its own motion. McElwee v. McElwee, 911 S.W.2d 182, 186 (Tex. App.BHouston [1st Dist.] 1995, writ denied). Thus, on this Court=s own motion, we consider the question of the juvenile court judge=s disqualification. <br /><br />In view of our disposition of this unassigned error, it is not necessary that we address appellant=s issue on appeal that the juvenile court abused its discretion in holding that appellant=s proof of recantation failed to demonstrate by clear and convincing evidence that appellant was entitled to relief. See Gonzalez v. State, 588 S.W.2d 574, 575 (Tex. Crim. App. [Panel Op.] 1979) (A[W]e find an unassigned error which should be reviewed in the interest of justice that is dispositive of the appeal and, accordingly, do not directly address the ground of error that is advanced.@). <br /><br />The question we face is whether the juvenile court judge who presided over the habeas corpus proceeding in this case was disqualified under Texas law by reason of having held the office of Nueces County Attorney when the underlying juvenile case was investigated and prosecuted by that office. To answer this question, we survey the substantive law of judicial disqualification. <br /><br /> IV. THE LAW OF JUDICIAL DISQUALIFICATION<br /><br /> A. The Policy Considerations<br /><br />All judges have the duty to sit and decide matters before them unless a basis exists for disqualification or recusal.[10] Monroe v. Blackmon, 946 S.W.2d 533, 536 (Tex. App.BCorpus Christi 1997, orig. proceeding) (citing Rogers v. Bradley, 909 S.W.2d 872, 879 (Tex. 1995) (Enoch, J., concurring)). Judges have as much of an obligation not to step down from a case when there is no reason to do so as they have to do so when there is a reason. Rogers, 909 S.W.2d at 879 (Enoch, J., concurring); Kirby v. Chapman, 917 S.W.2d 902, 909 (Tex. App.BFort Worth 1996, no writ). However, a judge also must avoid the appearance of impropriety. Tex. Code Jud. Conduct, Canon 2, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. B (Vernon 1998). In the context of judicial disqualification, Aavoiding the appearance of impropriety@ means that the judge must comply with the law applicable to judicial disqualification and act Ain a manner that promotes public confidence in the integrity and impartiality of the judiciary.@ Id. <br /><br /> B. Article V, Section 11 of the Texas Constitution<br /><br />Our starting point for analyzing the standards for judicial disqualification in both criminal and civil cases is the Texas Constitution:<br /><br />No judge shall sit in any case wherein the judge may be interested, or where either of the parties may be connected with the judge, either by affinity or consanguinity, within such a degree as may be prescribed by law, or when the judge shall have been counsel in the case. <br /><br /> <br /><br />Tex. Const. art. V, ' 11; see Ex parte Washington, 442 S.W.2d 391, 392-93 (Tex. Crim. App. 1969) (holding that a criminal court judge is constitutionally disqualified if the judge is related to a party or prosecuted the same case before); see also Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 623 (Tex. App.B San Antonio 2001, pet. denied) (holding that a judge who had represented a receiver in the case had not been Acounsel in the case@ because the receiver was not a party to the lawsuit and had no interest in the litigation). The Acounsel in the case@ requirement in article V, section 11 as applied to criminal cases came under early scrutiny. Johnson v. State, 29 Tex. Ct. App. 526, 526-27, 16 S.W. 418, 418 (1891). The court of appeals disqualified a district judge who, while acting as a private prosecuting attorney, prosecuted the defendant in a simple assault case before a justice of the peace. Id. The same defendant was then indicted for felony aggravated assault, and the case was filed in the district court in which the former prosecutor was presiding judge. Id. In disqualifying the judge, the Johnson court focused on the fact that the aggravated assault case arose out of the same facts as the simple assault case handled by the former prosecutor. Id.<br /><br />Further, Texas law long has held that the mere fact that a trial judge had been an assistant prosecutor at the time the alleged offenses arose or were filed does not mean that the former assistant prosecutor had acted as Acounsel in the case.@ Prince v. State, 252 S.W.2d 945, 946 (Tex. Crim. App. 1952). If, on the other hand, the judge participated in any manner in the preparation or investigation of the case as an assistant prosecutor, the judge would be considered Acounsel in the case.@ Id.<br /><br />Thus, as applied in criminal cases, the prohibition found in article V, section 11 against a judge hearing a case in which the judge had acted as a prosecutor requires that the judge had participated in the very case at issue. The court of criminal appeals underscored this requirement in Holifield v. State, 538 S.W.2d 123, 125 (Tex. Crim. App. 1976). The Holifield court noted that the record in the case showed that the judge had been the district attorney in Randall County, where two cases were pending against appellant, one in district court and another in county court. Id. At the time of the trial in Potter County of the case under appeal, the Randall County district court case had been dismissed, and the county court case was still pending. Id. <br /><br />The evidence in Holifield showed that the judge had not participated in the prosecution of the Potter County case. Id. Reasoning that the judge=s participation in the Randall County prosecutions did not make the judge Acounsel in the case@ with regard to the Potter County prosecution, the court held that the judge was not subject to disqualification under either article V, section 11 or the criminal procedure rule then in effect. Tex. Const. art. V, ' 11; Holifield, 538 S.W.2d at 125. <br /><br />In addition to interpreting the Acounsel in the case@ requirement as applicable to any case that arises out of the same set of operative facts, the court of criminal appeals in another early case read into article V, section 11 an implicit temporal component. Tex. Const. art. V, ' 11; Utzman v. State, 24 S.W. 412, 412 (Tex. Crim. App. 1893). The court noted that the judge was in office as district attorney when the alleged offense was committed but had nothing to do with the prosecution of the case, either in examining the witnesses or preparing the complaint or indictment, because he had resigned his position before an indictment was presented. Id. <br /><br />We turn next to the judicial disqualification standards in the rules of civil procedure. <br /><br /> C. The Texas Rules of Civil Procedure<br /><br />Rule 18b of the rules of civil procedure recites in relevant part the following grounds for disqualification of judges:<br /><br />Judges shall disqualify themselves in all proceedings in which:<br /><br /> <br /><br />(a) they have served as a lawyer in the matter in controversy, or a lawyer with whom they previously practiced law served during such association as a lawyer concerning the matter. . . .<br /><br /> <br /><br />Tex. R. Civ. P. 18b(1)(a). The Texas Family Code governs juvenile proceedings and requires that they be conducted under the rules of civil procedure, except as to discovery, and under the rules of evidence applicable to criminal proceedings. Tex. Fam. Code ' 51.17 (Vernon 2002); In re R.J.H., 79 S.W.3d 1, 6 (Tex. 2002).[11]<br /><br />The provisions of rule 18b apply an objective standard and are mandatory. See Monroe, 946 S.W.2d at 536 (A[W]hen there exists a reasonable question -- based on objective facts -- as to a judge's impartiality, recusal is mandated.@); see also Rogers, 909 S.W.2d at 879 (Enoch, J., concurring) (suggesting that the proper inquiry under the recusal provisions of rule 18b(2)(a) is whether a reasonable member of the public at large, knowing all the facts in the public domain concerning the judge=s conduct, would have a reasonable doubt that the judge is actually impartial).<br /><br />Moreover, by its own terms, rule 18b(1)(a) applies not only to a judge who personally Aserved as a lawyer in the matter in controversy@ but also to a judge who Apracticed law@ with another lawyer who Aserved during such association as a lawyer concerning the matter.@ Tex. R. Civ. P. 18b(1)(a). Accordingly, rule 18b(1)(a) as applied in civil cases Arecognizes that a judge is vicariously disqualified under the Constitution as having been >counsel in the case= if a lawyer with whom the judge previously practiced law served as counsel to a party concerning the matter during their association.@ In re O=Connor, 45 Sup. Ct. J. 970, 2002 Tex. LEXIS 108, 2002 WL 1379069 (June 27, 2002) (orig. proceeding) (per curiam) (not yet released for publication in the permanent law reports). <br /><br />The supreme court in In re O=Connor held that a judge whose law partner had represented one of the parties in a divorce case was constitutionally disqualified under rule 18b(1)(a) from presiding over a later modification proceeding. Tex. Const. art. V, ' 11; Tex. R. Civ. P. 18b(1)(a); In re O=Connor, 45 Sup. Ct. J. 970. Other jurisdictions also apply this knowledge-by-association imputation standard to judicial disqualifications. For example, we note that the general federal judicial disqualification statute requires that any judge of the United States Ashall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.@ 28 U.S.C. ' 455(a) (2002). More specifically, however, section 455(b) requires that the judge Ashall also disqualify himself@ in any proceeding where Ahe has served in governmental employment and in such capacity participated as counsel, adviser or material witness or expressed an opinion concerning the merits of the particular case in controversy.@ 28 U.S.C. ' 455(b)(3) (2002).[12] <br /><br />Despite the apparent limitation of this language in section 455(b)(3), the Ninth Circuit noted, in a case involving a former United States Attorney for Arizona who was<br /><br />appointed as a federal district judge in the same jurisdiction, that the statutory duty of each United States Attorney within the district was to Aprosecute for all offenses against the United States.@ United States v. Arnpriester, 37 F.3d 466, 467 (9th Cir. 1994). The Arnpriester court went on to find that the United States Attorney in the district necessarily was responsible for investigation and that there could be no prosecution unless it is preceded by investigation. Id. Concluding that other attorneys serve only as assistants to the United States Attorney, the Ninth Circuit held that the attorney responsible for the investigation of a person suspected of violating the laws of the United States reasonably would be believed not to be impartial when that person was subsequently indicted, tried, and convicted. Id. AThis analysis imputes to the United States Attorney the knowledge and acts of his assistants,@ the court reasoned:<br /><br />Such Avertical imputation@ to the head of the office is what is done by the criminal statute governing employment of a former government employee in any matter Awhich was under his official responsibility,@ 18 U.S.C. ' 207(a). It is the standard adopted in two of the leading cases on disqualification of a former government lawyer acting for a private client in a matter in which he had official responsibility, General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974); United States v. Standard Oil Co., 136 F. Supp. 345 (S.D.N.Y. 1955); see Andrew I. Kaufman, Problems In Professional Responsibility (1976) 59. What disqualifies a former government prosecutor from acting for a private client in the same matter for which he had official responsibility operates equally to disqualify him from sitting as a judge in the same matter. A United States District Judge cannot adjudicate a case that he or she as United States Attorney began.<br /><br /> <br /><br />Id. Similarly, where a district attorney signed a bill of indictment and also was responsible in a supervisory capacity for the prosecution of the charge against the defendant, the Pennsylvania Supreme Court held that the district attorney, on taking the bench, was disqualified from presiding over habeas corpus proceedings brought by the defendant. Com. ex rel. Allen v. Rundle, 189 A.2d 261, 262 (Pa. 1963). The Rundle court accordingly reversed an order entered by the former district attorney denying the petition for a writ of habeas corpus. Id. Although noting that the record was entirely free from the slightest suggestion of prejudice or impropriety on the part of the judge, the court reasoned that it was desirable to have the habeas corpus petition heard by a judge who had no previous association with either the prosecution or the defense in the trial of the case. Id.<br /><br />We note that the vicarious judicial disqualification standard incorporated into rule 18b(1)(a) is consistent with a conclusive, irrebuttable presumption, long recognized in Texas, that imputes knowledge of client confidences to all associated lawyers. In re O=Connor, 45 Sup. Ct. J. 970; Petroleum Wholesale, Inc. v. Marshall, 751 S.W.2d 295, 301 (Tex. App.BDallas 1988, orig. proceeding); see Tex. Disciplinary R. Prof=l Conduct 1.06(f), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (vicarious attorney disqualification in conflicts of interest between concurrent clients); Tex. Disciplinary R. Prof=l Conduct 1.09(b), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (vicarious attorney disqualification in conflicts of interest between former and current clients); Tex. Disciplinary R. Prof=l Conduct 1.10(b), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (vicarious attorney disqualification in conflicts of interest in successive government and private employment). <br /><br />Moreover, vertical vicarious judicial disqualification of the former head of an office comports with the duties imposed in Texas on supervisory lawyers by the rules of disciplinary conduct. See Tex. Disciplinary R. Prof=l Conduct 5.01, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (entitled AResponsibilities of a Partner or Supervising Lawyer@). Under rule 5.01(b), supervisory attorneys have an ethical duty to take reasonable remedial action to avoid or mitigate the consequences of known misconduct by the lawyers they supervise. Id. Comment 2 to rule 5.01 explains that Athe general counsel of a government agency=s legal department, or a lawyer having direct supervisory authority over specific legal work by another lawyer, occupies the position of authority contemplated by Rule 5.01(b).@ Tex. Disciplinary R. Prof=l Conduct 5.01 cmt. 2, reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. A (Vernon 1998). The court of criminal appeals has acknowledged that this supervisory function is imposed on a head prosecutor by the nature of the position: AA district attorney, unlike an assistant, is the person in authority in the office, and he cannot as such officer escape his duties and responsibilities. . . .@ Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970) (op. on reh=g). <br /><br />Appellant cites this Court to a federal habeas corpus case out of Texas, Bradshaw v. McCotter, 796 F.2d 100 (5th Cir. 1986) (op. on reh=g) (@Bradshaw II@), in support of the proposition that disqualification of the juvenile court judge below is required in this case because of an appearance of impropriety created by inclusion on the pleadings of the name and title of the former Nueces County Attorney. The opinion appellant apparently relies on is Bradshaw v. McCotter, 785 F.2d 1327 (5th Cir. 1986) (@Bradshaw I@), the result of which was modified by Bradshaw II. <br /><br />Originally, the Fifth Circuit held that the due process clause of the Fourteenth Amendment required a judge of the Texas Court of Criminal Appeals to disqualify himself because he had been the State's prosecuting attorney at the time of the petitioner's conviction. Bradshaw I, 785 F.2d at 1329. The name of the former State prosecutor had appeared on the State's appellate brief, but he had not participated in the prosecution Ain any fashion whatsoever.@ Id. His name had been added to the brief only Aas a matter of courtesy and protocol@ by the local prosecutor who had prepared it. Id. Bradshaw I ordered federal habeas corpus relief. Id. On rehearing, however, Bradshaw II denied habeas corpus relief, holding that no due process violation was shown absent evidence that the appellate judge=s vote was controlling. Bradshaw II, 796 F.2d at 101. <br /><br />The Fifth Circuit decided both Bradshaw I and Bradshaw II without reference to judicial disqualification standards applicable to criminal cases in Texas. Bradshaw II, 796 F.2d at 101; Bradshaw I, 785 F.2d at 1329.[13] This Court, however, must be mindful that juvenile cases, while civil in nature, are quasi-criminal. See In re C.O.S., 988 S.W.2d 760, 765 (Tex. 1999) (holding that the general civil rules requiring preservation of error in the trial court Acannot be applied across the board in juvenile proceedings.@); see also In re M.S., 985 S.W.2d 278, 280 (Tex. App.BCorpus Christi 1999, no pet.) (applying rules regarding restitution in criminal cases to a juvenile case). Hence, we turn our analysis to the judicial disqualification standards applicable to criminal cases in Texas. <br /><br /> D. The Texas Code of Criminal Procedure<br /><br />Article 30.01 of the code of criminal procedure recites:<br /><br />No judge or justice of the peace shall sit in any case where he may be the party injured, or where he has been of counsel for the State or the accused, or where the accused or the party injured may be connected with him by consanguinity or affinity within the third degree, as determined under Chapter 573, Government Code.<br /><br /> <br /><br />Tex. Code. Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2002); see State ex rel. Milsap v. Lazano, 692 S.W.2d 470, 474-483 (Tex. Crim. App. 1985) (orig. proceeding) (discussing historical development of constitutional and statutory judicial disqualification rules in Texas). The provisions of article 30.01 are mandatory. Ex parte Vivier, 699 S.W.2d at 863. It is a denial of a person's right to judicial impartiality in a criminal case to allow the state's attorney to later become judge in the same case. Ex parte Miller, 696 S.W.2d 908, 910 (Tex. Crim. App. 1985). An objective standard applies to judicial disqualifications decided under article 30.01. See Ex parte Vivier, 699 S.W.2d at 863 (A[I]f we were to hold that the existence or lack of knowledge was to be the determining factor in resolving cases such as the one before us, appellate courts would then be deciding cases based upon whether the judge subjectively knew of his relation to a defendant on a case by case basis. The possibility of creating an image to the public of judicial impropriety would be inherent, whether it actually existed or not. For these reasons we decline to hold that an Article 30.01 disqualification be based on the subjective knowledge of the judge.@); see also Crawford v. State, 686 So. 2d 199, 202 (Ala. Crim. App. 1996) (holding that the objective fact of the judge=s prior office as the district attorney for Mobile County at the time the appellant had been investigated and indicted controlled over the judge=s subjective denial of bias).[14] <br /><br />The court of criminal appeals has applied article 30.01 in a number of factual circumstances. Ex parte Miller, 696 S.W.2d at 910; Lee, 555 S.W.2d at 124; Carter v. State, 496 S.W.2d 603, 604 (Tex. Crim. App. 1973); Rodriguez v. State, 489 S.W.2d 121, 123 (Tex. Crim. App. 1972); Muro v. State, 387 S.W.2d 674, 676-77 (Tex. Crim. App. 1965). We find the court of criminal appeals= approaches in these cases instructive in our determination of judicial disqualification standards applicable to juvenile adjudications. <br /><br />In Lee, the court of criminal appeals found unassigned error based on a letter written to the defense attorney by the trial judge while acting as an assistant district attorney during plea negotiations in the appellant's first trial. Lee, 555 S.W.2d at 124. The trial judge in Lee was not the actual prosecutor assigned to the case and stated in the record he had no independent recollection of the case or the letter's contents. Nonetheless, the Lee court held that the record indicated participation sufficient to disqualify the trial judge. Id. at 125.<br /><br />In Ex parte Miller, the judge of the trial court personally and actively participated as a prosecutor in the applicant's conviction, a fact that was apparent from the record. Ex parte Miller, 696 S.W.2d at 910. Specifically, the trial judge's signature as assistant district attorney appeared on an application for jury waiver, a waiver of indictment and charge by information, a plea bargaining agreement, an agreed motion to modify probation, and a motion to adjudicate guilt. Id. The judge=s name also appeared on the docket sheet as the State's attorney. Id. No other attorney's name was shown as a representative of the State in the proceedings. Id. Citing both article V, section 11 of the Texas Constitution and article 30.01 of the code of criminal procedure, the Ex parte Miller court concluded that the trial judge had actively participated in applicant's trial as the State's attorney, and his involvement disqualified him from presiding as judge in a subsequent probation revocation hearing. Tex. Const. art. V, ' 11; Tex. Code. Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2002); Miller, 696 S.W.2d at 910.<br /><br /> In Carter, the court of criminal appeals held that a typewritten notation on the docket sheet that the judge had been the prosecuting attorney on the case was not enough to mandate the judge=s disqualification. The Carter court Areasoned that since there was no showing that the judge actually investigated, advised or participated in that case in any way, he was not acting >as counsel= as contemplated by@ article V, section 11 of the Texas Constitution or Aof counsel@ under article 30.01 of the code of criminal procedure. Tex. Const. art. V, ' 11; Tex. Code. Crim. Proc. Ann. art. 30.01 (Vernon Supp. 2002); Carter, 496 S.W.2d at 604; see Gamez v. State, 737 S.W.2d 315, 319 (Tex. Crim. App. 1987) (refusing to disqualify a judge whose signature stamp as a prosecutor appeared on an announcement of ready in the appellant=s case and who had acted as a third-chair prosecutor, noting that arraignments for all the district courts in that county had been held in one courtroom and could have involved in excess of 100 cases at one time). <br /><br />Further, in Rodriguez, the court of criminal appeals refused to disqualify a judge who was the first assistant criminal district attorney in Bexar County at the time the appellant was alleged to have committed the offense and at the time a complaint was filed. Rodriguez, 489 S.W.2d at 123. By the time the indictment was returned, the judge was no longer a member of the district attorney's staff. Id. He testified he had read the district attorney's file, and there was no record he had actually participated in the case. Id. The Rodriguez court held:<br /><br />It is not shown that the trial judge, even though he was the First Assistant to the Criminal District Attorney and in charge of capital prosecutions, actually investigated, advised or participated in this case in any way; it is therefore not shown that he Aacted as counsel in the case@ as contemplated by the constitutional and statutory provisions relied upon. <br /><br /> <br /><br />Id.<br /><br />In Muro, the court of criminal appeals held that the trial judge was not disqualified as a result of having served as an assistant district attorney at the time of the offense since the former prosecutor had no recollection of working on the case and, at the time the case was filed, had been assigned to work only on capital cases and to act as legal advisor to th