author: BILL VANCE, Justice.

text:
    Alvin Alexander RUSSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 10-05-00003-CR.
    Court of Appeals of Texas, Waco.
    July 6, 2005.
    Robert C. Dunn, Law Office of Robert C. Dunn, Corsicana, for appellant.
    Steve A. Keathley, Navarro County Dist. Atty., Corsicana, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Alvin Russell was convicted of sexual assault in 1996 and sentenced to twenty years’ confinement. He filed a pro se motion for DNA testing under article 64.01 of the Code of Criminal Procedure and requested counsel to assist him in the motion. The trial court appointed counsel, who filed a second motion for DNA testing in 2004. A hearing was set for November 23, 2004, but there is no record that a hearing was held. On November 23, 2004, the trial court denied Russell’s motion for DNA testing and issued findings of fact and conclusions of law. Russell argues on appeal that the trial court’s failure to hold an evidentiary hearing on his motion for DNA testing violated his due process rights.

A court may order forensic DNA testing under Chapter 64 if it finds (1) that the evidence “still exists and is in a condition making DNA testing possible;” (2) that the evidence “has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced or altered in any material respect;” and (3) that “identity was or is an issue in the case.” Tex.Code CRIM. PROC. Ann. art. 64.03 (Vernon Supp.2004-05). However, the convicted person bears the burden of establishing by a preponderance of the evidence that “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” Id.; Whitaker v. State, 160 S.W.3d 5, 6 (Tex.Crim.App.2004).

The Court of Criminal Appeals has held that “nothing in Article 64.03 requires a hearing of any sort concerning the trial court’s determination of whether a defendant is entitled to DNA testing.” Rivera v. State, 89 S.W.3d 55, 58-59 (Tex.Crim.App.2002). In determining whether to order forensic DNA testing under article 64.03, the trial court may rely on the motion, accompanying affidavits, and the State’s written response. Means v. State, 120 S.W.3d 20, 24 (Tex.App.-San Antonio 2003, pet. ref'd). Chapter 64 does not require the trial court to conduct a hearing, regardless of whether the State attaches affidavits to its response. Whitaker, 160 S.W.3d at 7.

Russell claims that, without a hearing, he is presented with “an impossible task” to present to the court the merits of the DNA motion. We disagree. Nothing prevents the convicted person from presenting affidavits in support of the motion. Indeed, article 64.01 requires that the motion be accompanied by an affidavit, sworn to by the convicted person, containing statements of fact in support of the motion. Tex.Code Crim. Proc. Ann. art. 64.01 (Vernon Supp.2004-05). The movant may also request that the trial court take judicial notice of the trial record. See Smith v. State, 165 S.W.3d 361 (Tex.Crim.App.2005).

Russell’s original pro se motion was accompanied by an affidavit in which Russell swears that DNA testing was not made available to him. Russell’s second motion for DNA testing, filed after counsel was appointed, was not accompanied by any affidavits. Neither motion requests that the trial court take judicial notice of the trial testimony and exhibits. The State did not attach affidavits to its response to the motion. Russell does not explain why it is an “impossible task” to present evidence in support of a motion through affidavits and by requesting the trial court to take judicial notice of the trial testimony and exhibits.

Russell also challenges the trial court’s findings of fact. The court found that: (1) Russell “fails to meet the requirement” that identity was or is an issue in the case; (2) Russell failed to show by a preponderance of the evidence that a reasonable probability exists that the applicant would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and (3) Russell fails to meet the requirements of article 64.03(a)(2) concerning his burden of proof. Because no hearing was held and Russell’s affidavit is the only evidence supporting the motion, the trial court is in no better position than we are to determine the credibility and demeanor of the witnesses, and thus we review the court’s findings de novo. Id. at 363.

The trial court found that Russell’s motion fails to show that identity was or is an issue in the case. Russell’s affidavit does not state that identity was an issue at trial, nor does it state any facts regarding the case that would indicate that identity was an issue at trial. Neither of Russell’s motions for DNA testing argues that, or explains how, identity was an issue at trial. On the basis of the evidence that was before the trial court and is now before us, we cannot say the trial court erred in not finding that identity was or is an issue in the case.

Under article 64.03, the convicting court may order DNA testing only if it finds, among other things, that identify was or is an issue in the case. The trial court did not find that identity was or is an issue in this case. Because we would affirm the trial court’s denial of the DNA motion on the identity finding alone, we need not address Russell’s challenges to the court’s other findings.

CONCLUSION

We overrule the issues and affirm the judgment.

      . We recognize that written "trial testimony and exhibits” may not exist. We reserve for another day the decision about how to review such testimony and exhibits.


source: Caselaw Access Project

author: BRIAN QUINN, Chief Justice.

license: Public Domain

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Jessie McGlocklin ARBELO, Appellee.
    No. 07-05-0015-CV.
    Court of Appeals of Texas, Amarillo.
    July 8, 2005.

      J. Frank Davis, Expunction Attorney, Austin, for Appellant.
    John L. Tison, Wichita Falls, for Appel-lee.
    Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.
   Opinion

BRIAN QUINN, Chief Justice.

Through a restricted appeal, the Texas Department of Public Safety (DPS) asks that we reverse an Order of Expunction signed on July 22, 2004. The subject of the order is Jessie McGlocklin Arbelo (Ar-belo). The record discloses that 1) Arbelo petitioned for expunction of all her criminal records and files on July 15, 2004, 2) a copy of the petition was sent to the DPS by certified mail, return receipt requested, and 3) the DPS received the petition on July 22, 2004, or the day the court signed the expunction order. According to the DPS, the order should be reversed because it was executed in violation of pertinent statute, ie. that the trial court failed to hold the hearing and inform the DPS of the hearing date within the parameters established by statute. We agree and reverse the order.

To be entitled to relief, one prosecuting a restricted appeal must illustrate that 1) his notice of appeal was filed within six months of the date the judgment was signed, 2) he was a party to the suit, 3) he did not participate in the hearing that resulted in the judgment or order or timely file any post-judgment motions or requests for findings of fact and conclusions of law, and 4) error appears on the face of the record. Starks v. Texas Dept.Crim. Justice, 153 S.W.3d 621, 625 (Tex.App.Amarillo 2004, no pet.). The record before us discloses that the DPS filed its notice of appeal on January 13, 2005, or within six months of the date that the trial court signed the order in question. Furthermore, Arbelo listed, in her petition, the DPS as an entity potentially having records she sought to expunge. This circumstance permits one to reasonably deem the DPS as a party to the action. And, that the governmental agency did not receive the petition until the very day that the trial court acted upon it hardly indicates that the agency participated in any hearing from which the order arose. Indeed, the DPS averred in their notice of appeal that it neither participated in any such hearing nor moved for post-judgment relief or findings of fact and conclusions of law. Moreover, the record does not belie this representation.

Next, authority holds that the failure of the trial court to abide by various provisions of the statute regulating the expunction of criminal records mandates reversal. The provisions contemplated by that authority include those relating to the time within which any hearing on the petition may be held and the prior notice of the hearing date to which the parties are entitled. See e.g., Texas Dept. Pub. Safety v. Prather, No. 04-03-00612-CV, 2004 WL 1054964,2004 Tex.App. Lexis 4253 (Tex.App.-San Antonio May 12, 2004, no pet.) (reversing the expunction order since the trial court did not abide by the statutory requirements pertaining to time and notice); Texas Dept. Pub. Safety v. Deck, 954 S.W.2d 108, 112-13 (Tex.App.-San Antonio 1997, no pet.) (reversing the order because the DPS failed to receive notice of the new hearing date). Moreover, statute specifies that a hearing on the petition cannot be held any “sooner than thirty days from the filing of the petition.... ” Tex.Code Crim. Ann. art. 55.02, § 2(c) (Vernon Supp.2005). So too does it require the trial court to “give reasonable notice of the hearing to each official or agency or other entity named in the petition by certified mail....” Id. When we compare these two statutory duties to the facts appearing on the face of the record, we cannot but hold that they were breached.

First, the hearing at bar was premature for it was held long before expiration of the 30-day period prescribed by art. 55.02, § 2(c). Second, the DPS was denied reasonable notice of the hearing for it did not even receive service of the petition until the very day the trial court acted upon it. Serving the DPS with the petition sometime during the day of July 22nd does not illustrate reasonable prior notice of the court’s intent to act on the petition that very day.

In sum, the DPS satisfied each element for obtaining relief via a restricted appeal. Thus, we reverse the Order of Expunction and remand the cause for further proceedings.


author: BILL VANCE, Justice. TOM GRAY, Chief Justice,

text:
    Reginald HOOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00265-CR.
    Court of Appeals of Texas, Waco.
    July 13, 2005.

      Albert J. Charanza, Jr., Lufkin, for appellant.
    Clyde M. Herrington, Lufkin, for appel-lee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

I. Introduction

Appellant Reginald Hooper raises three issues to challenge his conviction by a jury of being a party to the offense of aggravated assault of a public servant and the thirty-year sentence assessed by the jury. Hooper’s third issue complains of the legal sufficiency of the evidence to support his conviction. Because we hold that the evidence is legally insufficient to support Hooper’s conviction, we will reverse and render a judgment of acquittal.

II. Factual Background

Senaida Nash, the manager of the Cash 2 U store on Highway 69 in Woodville, testified that on March 17, 2004, at approximately 4:00 p.m., two men walked into the store and claimed they were conducting a cell phone survey. Nash did not see them pull up to the store in a car. One man— later identified as Carl Austin' — -was tall and thin and was wearing a red jersey, black shorts, and red and white tennis shoes. The other — later identified as Jason Nicholson — was wearing a white long-sleeve shirt. Nash testified that she knew Hooper, and neither of the men in the store was Hooper; she did not see Hooper at all that day. She knew Hooper because he had worked on the remodeling of some of Cash 2 U’s stores.

While she was talking to the two men and after turning her back to them to receive a fax, Nash turned back around, and Austin had a gun pointed at her stomach and demanded money. Nash testified that she told him that the store didn’t have any money. Austin took Nash to the back of the store and tied her hands and feet with duct tape. Nash said that Nicholson was in the front of the store and kept yelling to Austin to hurry, and then Austin told Nicholson that if he couldn’t find anything, then they would take Nash’s personal things. Austin took Nash’s driver’s license, cell phone, jewelry and $60 in cash. After gagging her, the two men left. Nash said the entire incident took no more than ten minutes.

Nash said that she was able to free her hands and feet from the duct tape, and she ran to the front of the store, just as a customer was walking in. Nash told him to call the police and that she had just been robbed. She asked him if he had seen anyone coming out of the store, and he said that he had not. The police soon arrived, and Nash gave a statement.

Betty Williams testified that on March 17, 2004, as she was pulling into a parking space in the Brookshires parking lot in Woodville (across Highway 69 from Cash 2 U, and not even a block away), a red car almost collided with her. She described the car as a red, four-door Dodge Shadow. As Williams’s daughter opened her car door, a man with his shirt rolled up ran by her car, almost hitting the open car door. Williams described the man as wearing a red and black jersey and black shorts. He got in the back seat of the red car and laid down, and the car sped out of the parking lot. Williams did not see which direction the red car went as it left the Brookshires parking lot.

Williams could not identify the driver of the red car, and she said that she saw only one man running to the car. Williams testified that she had never seen Hooper before and did not recognize him in court. Williams’s testimony about how many people were in the red car was somewhat unclear, but from our review of the record, it appears that she saw only two men — the man who was running and got into the car, and the driver.

Williams then saw police going to Cash 2 U and went over to ask if there had been a robbery. When told that there had been a robbery, Williams gave the police descriptions of the red car and the man who was running and his clothing.

Deputy Lawrence Hicks of the Tyler County Sheriffs Department responded to the call of a robbery at the Cash 2 U. He obtained a description of the suspects from Nash and then went to his patrol car to use his radio to broadcast their description. Hicks testified that Williams came up to him in the parking lot of Cash 2 U and told him that she had just seen two black males get into a red Dodge Shadow at Brookshires. On cross-examination, Hicks testified that he later obtained a written statement from Williams and that the statement indicated that she saw only one man running to the car.

Hicks then broadcast a description of the suspects’ car over his radio. He soon got a radio report from Game Warden ■Trey Shewmake that he had located the red car. Hicks also determined Shew-make’s location. During Shewmake’s radio report, Hicks heard gunfire over the radio, so he drove immediately to Shew-make’s location. When Hicks arrived, Shewmake and the red Dodge Shadow were there. Hooper was sitting in the front passenger seat of Shewmake’s truck with his hands cuffed behind his back.

Shewmake, a game warden with the Texas Parks and Wildlife Department and a certified peace officer, testified that on the afternoon of March 17, he was driving south on Highway 69 toward Woodville from Lufkin. He heard a radio dispatch of an armed robbery in Woodville involving two suspects — two black males — possibly in a red Dodge Shadow, with one suspect wearing a red jersey. Just after he had crossed the Neches River — -the county line between Tyler County and Angelina County — Shewmake said that a small red car traveling north on Highway 69 in the opposite direction passed him. Shewmake saw only one person in the car — the driver— and he was not sure if the car was a Dodge Shadow. He thus turned his game warden patrol truck around to follow the red car and get a better look at the car. He described his truck as having a large game warden decal on both doors and red and blue lights on both the front of the truck and on the headache rack along the top of the cab.

Shewmake testified that, after turning around to catch up to the red car, he had to drive over 100 m.p.h. because the red car appeared to accelerate. It took him a few minutes to catch up, and then he followed the red car for about four or five miles while going between 60 and 70 m.p.h. Shewmake did not activate his lights or siren, as he said he was just trying to get a better look at the car to see if it was the suspect ear. Shewmake was able to see that one person was in the car, and that was the driver, a black male. Shewmake was able to read the license plate number, which he radioed to the dispatcher. At the same time, the red car began to slow down to 40 to 50 m.p.h. and moved over to the right with the two right tires over the shoulder, similar to a driver moving over to let a car pass. Shewmake testified that the red car’s actions were strange and erratic and that he thus began to think that this might be the suspect car.

As the red car continued to slow down to about 25 m.p.h., Shewmake received radio confirmation that the car was in fact a Dodge. At that point, the red car completely pulled over and stopped quickly, and as it pulled over, Shewmake activated his red and blue lights. Shewmake testified that almost immediately, the heads of two other persons popped up and he realized that they had been lying down in the car and that he had a “situation.” He radioed to his dispatcher that he was going to be out of his truck with a car.

Shewmake testified that at the same time as he was getting out of his truck, the two passengers in the red car opened their doors almost simultaneously, with the rear passenger getting out a split second before the front passenger. Shewmake said that the rear passenger — Austin—was wearing a red basketball jersey and black shorts. He yelled at Austin to get back in the car, but Austin began moving to the front of the car. At the same time, the front passenger — Nicholson—was getting out of the car. Shewmake said that he realized he was in a bad situation and reached in his truck to get his radio microphone to call for help. While Shewmake was pulling his microphone toward his face and also pulling his pistol out of the holster, Nicholson, who was about twenty-five feet away, raised a pistol and shot once at Shew-make’s head but missed. The driver was still in the red car when Nicholson shot at Shewmake.

Shewmake squeezed his microphone and called for help and returned fire, all at the same time, firing eleven shots toward Nicholson until he thought that Nicholson was no longer going to shoot back. Two of Shewmake’s shots hit the car. When Shewmake began shooting, Nicholson ducked and began to move away to the front of the car, where Austin was. While Shewmake was shooting, the driver — Hooper — opened his door, dived on the ground onto his hands and knees, and looked at Shewmake and yelled, “Don’t kill me” or “Don’t shoot me.” On cross-examination Shewmake said that being on the ground was probably the safer place for Hooper to be and that Hooper appeared frightened and scared. Nicholson and Austin fled into the woods. Shewmake approached Hooper, reloading his pistol and telling Hooper to stay on the ground. When he felt sure that the other two men were not going to return and shoot at him, Shew-make handcuffed Hooper and frisked him for weapons, finding that Hooper had no weapons on his person. Shewmake said that Hooper never pulled a gun on him. Later during the official search of the car, a pistol was found on the rear floorboard behind the driver’s seat, where Austin had been.

While Shewmake was waiting for help to arrive, two citizens stopped and offered to assist. Shewmake had one of them hold on to Hooper’s handcuffs to prevent him from running while Shewmake got on his radio to report what had happened. Other officers arrived approximately eleven minutes after the shooting.

While waiting for help to arrive, Shew-make placed Hooper in his truck, securing him with a seatbelt. Shewmake got Hooper’s identification from his pocket and was able to identify him as Hooper. With the citizens watching Hooper, Shewmake then went to a nearby house to insure that Nicholson and Austin had not gone into it and that any occupants were safe. After determining that no one was home, Shew-make went back to his truck and took control of Hooper. Shewmake testified that when other officers arrived, they took Hooper out of his truck and placed him in a patrol car.

On cross-examination, Shewmake said that Hooper never tried to run, never threatened him, never gave him any problems, never resisted, and never gave a bad attitude. He testified that he told Hooper while he was handcuffing him, ‘You’re doing good.” The citizens who watched Hooper while Shewmake searched the nearby house did not report any problems with Hooper to Shewmake.

Eventually, around 100 law enforcement officers, two packs of dogs from a nearby prison, and a helicopter with a thermal-imaging camera converged on the area to assist in the manhunt for Nicholson and Austin in the woods. Nicholson surrendered that night around 10:30 p.m., and Austin surrendered the next morning around 7:05 a.m. Neither was armed when they surrendered, but a 9 mm semi-automatic pistol was found in the vicinity of Austin’s surrender. Other items found in a search of the woods were a roll of duct tape matching that used on Nash in the robbery and the set of Cash 2 U keys taken in the robbery.

III. Standard of Review

Hooper’s third issue complains of the legal sufficiency of the evidence to support his conviction as a party to the offense of aggravated assault of Shew-make. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The standard is the same for both direct and circumstantial evidence cases. Kutzner v. State, 994 S.W.2d 180, 184 (Tex.Crim.App.1999).

We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Instead, our duty is to determine if the findings of the trier of fact are rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000); Matson, 819 S.W.2d at 843.

IY. Applicable Law

Hooper was convicted of being a party to the offense of aggravated assault of a public servant.

A. Aggravated Assault of a Public Servant

A person commits the offense of aggravated assault of a public servant if the person intentionally or knowingly threatens another with imminent bodily injury and the person uses or exhibits a deadly weapon during the commission of the offense, and the offense is committed against a person who the actor knows is a public servant while the public servant is lawfully discharging an official duty. Tex. Pen. Code Ann. §§ 22.01(a)(2), 22.02(a)(2), (b)(2) (Vernon Supp.2004-05).

B. The Law of Parties

Under the law of parties, a person may be convicted as a party to an offense if the offense is committed by his own conduct or by the conduct of another for which he is criminally responsible. Id. § 7.01(a) (Vernon 2003). The penal code provides two ways by which a person may be criminally responsible for another’s conduct: (1) by being a “party” to the offense under section 7.02(a); or (2) by being part of a conspiracy to commit a felony under section 7.02(b). See id. § 7.02(a), (b).

1. Acting with Intent to Promote or Assist

Section 7.02(a)(2) provides that a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. Id. § 7.02(a)(2); see Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App.2005). To convict a defendant as a party to an aggravated offense, the State must prove that the defendant was criminally responsible for the aggravating element. Wooden v. State, 101 S.W.3d 542, 547-48 (Tex.App.-Fort Worth 2003, pet. ref'd) (citing Stephens v. State, 717 S.W.2d 338, 340 (Tex.Crim.App.1986)). In other words, the defendant must have, with intent to promote or assist the aggravated assault, solicited, encouraged, directed, aided, or attempted to aid the other person in committing the aggravated assault. Id.

When an appellant raises a legal sufficiency complaint as an offender convicted as a party, the evidence will be held sufficient to convict under the law of parties where the defendant is physically present at the commission of the offense and encourages its commission by words or other agreement. Ransom v. State, 920 S.W.2d 288, 302 (Tex.Crim.App.1994); Cordova v. State, 698 S.W.2d 107, 111 (Tex.Crim.App.1985). “In determining whether the accused participated as a party, the court may look to events occurring before, during and after the commission of the offense, and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.” Cordova, 698 S.W.2d at 111. Circumstantial evidence may be used to prove party status. Id.

The evidence must show that at the time of the offense, the parties were acting together, each contributing some part towards the execution of their common purpose. Brooks v. State, 580 S.W.2d 825, 831 (Tex.Crim.App. [Panel Op.] 1979); Armstead v. State, 977 S.W.2d 791, 797 (Tex.App.-Fort Worth 1998, pet. ref'd). For a defendant to be considered a party to an offense, he must commit some culpable act before or during the commission of the offense. See Morrison v. State, 608 S.W.2d 233, 235 (Tex.Crim.App. [Panel Op.] 1980). In determining the legal sufficiency of the evidence to show the defendant’s intent, if the record supports conflicting inferences, we “must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution.” Matson, 819 S.W.2d at 846; see also Armstead, 977 S.W.2d at 797.

2. Conspiracy

The second way that a person can be criminally responsible for another’s conduct is found in section 7.02(b), which provides that if, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. Tex. Pen.Code Ann. § 7.02(b). The term “conspiracy” is defined as an agreement between two or more persons, with intent that a felony be committed, that they, or one or more of them, engage in conduct that would constitute the offense. Id. § 15.02(a). An agreement constituting a conspiracy may be inferred from acts of the parties. Id. § 15.02(b).

Y. Analysis

The evidence clearly establishes that it was Nicholson, not Hooper, who shot at Shewmake. Plainly, no rational juror could have found beyond a reasonable doubt that Hooper shot at Shewmake; the evidence was legally insufficient to support Hooper’s conviction as a primary actor. See Tippitt v. State, 41 S.W.3d 316, 323 (Tex.App.-Fort Worth 2001, no pet.). Therefore, in finding Hooper guilty of aggravated assault of a public servant, the jury necessarily concluded either that Hooper intended to promote or assist Nicholson in the commission of the aggravated assault of Shewmake by soliciting, encouraging, directing, aiding, or attempting to aid Nicholson in the commission of the offense, or alternatively, that in facilitating a conspiracy to commit robbery, Hooper should have anticipated Nicholson’s aggravated assault of Shewmake. We find that the evidence is legally insufficient to support a finding under either theory of criminal responsibility.

A. Acting with Intent to Promote or Assist

First, the evidence is legally insufficient to establish Hooper’s promotion or assistance in Nicholson’s aggravated assault of Shewmake. See Tex. Pen.Code Ann. § 7.02(a)(2). Hooper cannot be found guilty as a party to the aggravated assault of Shewmake under section 7.02(a)(2) without legally sufficient evidence that he was present and “acting with intent to promote or assist the commission of’ aggravated assault of a public servant. See Tippitt, 41 S.W.3d at 324 (quoting Tex. Pen.Code Ann. § 7.02(a)(2) and citing Martinez v. State, 763 S.W.2d 413, 425 n. 5 (Tex.Crim.App.1988)). Hooper’s criminal responsibility for another’s conduct does not extend further than that which he specifically intended to promote in aiding Nicholson and Austin — in this case, the robbery. In other words, even if the evidence established Hooper’s criminal responsibility by aiding the robbery, his criminal responsibility for the robbery would not establish his criminal responsibility for Nicholson’s later aggravated assault of Shewmake. See id. (evidence of appellant’s plan and aid to commit robbery was legally insufficient to show his encouragement and intent to commit capital murder); see also Wooden, 101 S.W.3d at 547-49 (evidence of appellant’s intent to promote or assist attempted theft as lookout was not legally sufficient to support conviction for subsequent aggravated assault).

The direct evidence before the jury was that Hooper was driving the getaway car for the five minutes that Shewmake was observing the car, which was approximately thirty minutes after the robbery. There was no direct evidence that Hooper was at or near the scene of the robbery, i.e., the Cash 2 U premises, or that Hooper was driving the red car when Austin ran and got into it. But for purposes of our legal sufficiency review of all the evidence in the light most favorable to the verdict, we will assume that the jury made the inference that Hooper was the driver of the getaway car at the time of the robbery based on the circumstantial evidence that he was driving it about thirty minutes later and the two robbers were lying down in it.

There was no direct evidence that, before Nicholson shot at Shewmake, Hooper knew that Nicholson had a gun, and there was no direct evidence that Hooper knew there was another gun on the floorboard behind the driver’s seat. There was no evidence that Hooper acted with intent to promote or assist Nicholson in his shooting at Shewmake or that Hooper solicited, encouraged, directed, aided, or attempted to aid Nicholson in the shooting. In summary, the evidence shows that Hooper was driving the getaway car and that he was present when Nicholson shot at Shewmake. Other than Hooper’s presence and driving of the getaway car, there was no evidence of any action by Hooper or any circumstance that showed his intent to promote or assist Nicholson’s shooting at Shewmake. See id. Shewmake did testify about Hooper’s conduct at the scene of the shooting, and his conduct was directly opposite to that which would show such an intent — Nicholson shot at Shewmake and he and Austin fled, but Hooper immediately surrendered, diving to the ground and yelling at Shewmake not to shoot him.

The evidence of a plan or agreement viewed in the light most favorable to the verdict only established a plan or agreement to rob the Cash 2 U store, not a plan or agreement to shoot at pursuing law enforcement officers. While the jury could have inferred that Hooper was the driver of the getaway car and thus intended to promote or assist the robbery, we will not indulge in another inference that Hooper, by his presence and as driver of the getaway car, intended to promote or assist Nicholson’s shooting at Shewmake. Such a scenario would require us to stack an inference upon an inference, and when conducting a legal sufficiency review, a vital fact may not be established by stacking inference upon inference. Id. at 327; Richardson v. State, 834 S.W.2d 535, 537 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (op. on reh’g).

B. Conspiracy

Turning to the second basis for criminal responsibility for the conduct of another, although the evidence in the light most favorable to the verdict establishes that Hooper drove the getaway car and thus was a party to the Cash 2 U robbery, the evidence is legally insufficient to support a finding that the aggravated assault of Shewmake was an offense that was committed in furtherance of the robbery and Hooper should have anticipated that offense as a result of his agreeing to aid the robbery. See Tex. Pen.Code Ann. § 7.02(b). As a comparison, where appellate courts have found legally or factually sufficient evidence to uphold a capital murder conviction under section 7.02(b), there has been evidence that the appellant was on notice that murder was a possible result of the carrying out of a felony to commit another felony. Tippitt, 41 S.W.3d at 324-25 (detailing cases). In this case, there was no direct evidence to establish Hooper’s knowledge of Nicholson’s violent propensity or of his or Austin’s intent to evade arrest by shooting at Shewmake. Cf. id. at 325-26. Without such evidence, the evidence before the jury was legally insufficient to establish beyond a reasonable doubt that Hooper should have anticipated Nicholson’s shooting at Shewmake. Speculation would be required for the jury to infer from Hooper’s driving the getaway car that Hooper knew or should have anticipated that Nicholson would shoot at Shewmake. A jury, however, may not reach a verdict based on speculation. Johnson v. State, 673 S.W.2d 190, 196 (Tex.Crim.App.1984); Tippitt, 41 S.W.3d at 326. Additionally, Hooper’s conduct during and after the stop, as testified to by Shewmake, was directly inconsistent with one who should have anticipated or in fact did anticipate Nicholson’s shooting.

Hooper’s driving of the getaway car does not alone support a rational inference beyond a reasonable doubt that Hooper should have anticipated Nicholson’s shooting at Shewmake. See Tippitt, 41 S.W.3d at 327 (defendant’s agreement or acquiescence in robbery would not support rational inference beyond a reasonable doubt that he should have anticipated murder of robbery victim by actor). We agree with the Second Court of Appeals that robbery is not an offense of such a violent nature that murder should always be anticipated as a potential result of its commission; thus, aggravated assault of a pursuing peace officer also should not always be anticipated as a potential result of a robbery. Id. at 326.

Furthermore, to convict Hooper as a party under section 7.02(b), the jury would have to infer not only that Hooper was the driver of the getaway car at the time of the robbery, but also that he knew or was on notice — and thus should have anticipated — that Nicholson would shoot at a law enforcement officer to evade arrest. This scenario must be rejected because it would require us to impermissibly stack an inference upon an inference to establish a vital fact. Id. at 327.

VI. Conclusion

The factfinder’s determination of Hooper’s guilt beyond a reasonable doubt cannot be overturned unless it is found to be irrational. When we are faced with a record that supports conflicting inferences, we must presume that the trier of fact resolved such conflicts in favor of the prosecution and must defer to that resolution. Matson, 819 S.W.2d at 846; Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). We recognize our duty to consider all the evidence admitted at trial before deciding whether there was sufficient evidence to prove the elements of the offense. Villalon v. State, 791 S.W.2d 130, 132 (Tex.Crim.App.1990). Furthermore, we do not sit as a thirteenth juror in assessing the evidence under our legal sufficiency analysis. See Moreno, 755 S.W.2d at 867. But in this case, nothing more than speculation or impermissible inference-stacking supports the State’s contention that Hooper acted with intent to promote or assist, or should have anticipated, Nicholson’s aggravated assault of Shewmake. See id. at 326-27.

In conclusion, viewing all of the evidence in the light most favorable to the verdict and giving full play to the responsibility of the factfinder fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts, but disallowing inference stacking and speculation, we hold that no rational factfinder could have found the essential elements of the crime beyond a reasonable doubt under the law of parties. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89; Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App.1997). The evidence, as a whole, was legally insufficient for a rational factfinder to find that Hooper was a party to aggravated assault of a public servant. See, e.g., Wooden, 101 S.W.3d at 548-49; Tippitt, 41 S.W.3d at 323-28; Navarro v. State, 776 S.W.2d 710, 712 (Tex.App.-Corpus Christi 1989, pet. ref'd).

We sustain Hooper’s third issue. Because by sustaining Hooper’s third issue we must render a judgment of acquittal, we do not address his first and second issues. See Tex.R.App. P. 47.1. Having sustained Hooper s third issue, we reverse the judgment and render a judgment of acquittal.

Chief Justice GRAY, dissenting.

TOM GRAY, Chief Justice,

dissenting.

Call me, along with 12 jurors and the trial court, irrational.

Hooper was driving the getaway car. After Hooper knew he was being followed by law enforcement, his driving became somewhat erratic until he slowed and suddenly stopped before the following officer even activated his emergency lights. During this time it is undisputed that two other persons were in the car, concealing themselves from public view, one in the front side passenger area. The one in the front side passenger area exited the car, gun in hand, and shot at the officer, a game warden, who had pulled up behind them. By stopping the car at the time, manner, and location that he did, Hooper is the one who chose the timing and location of the ensuing gun battle between the front seat passenger and the game warden.

I think the inferences necessary to affirm the conviction for aggravated assault of a public servant are reasonable and firmly supported by this record. Thus, I totally disagree with the majority opinion and judgment and, more specifically, the statement by the majority that “Hooper’s conduct during and after the stop ... was directly inconsistent with one who should have anticipated or in fact did anticipate Nicholson’s shooting.” If that were the case, it would have been entirely reasonable to expect Hooper to pull into his mother’s driveway and stop for milk and cookies and his afternoon nap.

I dissent.

      . Q. Okay. Tell me about that. You saw— how many individuals did you see in the car?
      A. Two.
      Q. Okay. And you saw one individual running on foot?
      A. I did.
      Q. What was he wearing?
      A. A red and black jersey, black shorts.
      Q. Okay. And you said there were two people in the car. Who was the other individual?
      A. I don't really know because he was the driver. I was basically focusing on the one running.
      Q. So you didn’t get a good look at the driver?
      A. No, I didn't get a good look at him?

      . Nicholson was convicted of the aggravated assault of Shewmake, received a life sentence, and did not appeal that conviction. See Nicholson v. State, 162 S.W.3d 389, 391 (Tex.App.-Beaumont 2005, pet. filed) (affirming Nicholson’s convictions and life sentences for aggravated assault and attempted capital murder offenses against two other law enforcement officers that occurred in the subsequent manhunt for Nicholson and Austin).

      .In its brief, the State asserts that the jury heard testimony from Nash and Williams that placed Hooper in the driver’s seat of the red car used to flee the robbery, but the State does not cite the record in making this assertion, which in any event is simply not supported by the record. Nash, who knew Hooper, testified that she didn’t see him at all that day, that he was not one of the two robbers, and that she didn’t see the robbers’ car. Williams testified that she saw only two persons in the red car — -Austin and an unidentified driver — when she observed it across the highway from Cash 2 U after the robbery.

      . Standing alone, proof that an accused was present at the crime scene is insufficient to sustain a conviction. Thompson v. State, 697 S.W.2d 413, 417 (Tex.Crim.App.1985) (“Of course, mere presence of a person at the scene of the crime, either before, during, or after the commission of the offense, or even flight from the scene, without more, is insufficient to sustain a conviction of one as a party to the offense.”).

      . Cf. Cunningham v. State, 982 S.W.2d 513, 519-20 (Tex.App.-San Antonio 1998, pet. ref'd) (evidence of defendant’s membership in gang with the two identified shooters, park ranger’s statement and complainant’s testimony that defendant appeared to have a gun as he fled scene, and other ranger’s testimony that he saw five to seven men standing with arms outstretched and three of them with guns and defendant thus may have at least been pointing for shooters, was legally sufficient to establish that defendant at least encouraged commission of aggravated assault and thus was party to it); cf. also id. at 525-26 (Duncan, J., dissenting) (stating that inference that defendant encouraged aggravated assault was speculation but in any event was not sufficient evidence beyond a reasonable doubt' — inference was only some or a "modicum” of evidence — that defendant encouraged aggravated assault).


author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice

text:
    Abner Lee COCKE, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00056-CR.
    Court of Appeals of Texas, Waco.
    July 13, 2005.
    Rehearing Overruled Aug. 2, 2005.

      Andrew W. Lucas, Glen Rose, for appellant.
    B.J. Shepherd, Bosque County Dist. Atty., Martin L. Peterson, Asst. Dist. Atty., Meridian, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Abner Lee Cocke of burglary of a habitation and assessed his punishment at life imprisonment after Cocke pleaded “true” to enhancement allegations. Cocke contends in his sole issue that the court erred by failing to provide an accomplice-witness instruction to the jury in the guilt-innocence charge. We will reverse and remand.

The evidence establishes that five firearms and a Chevrolet pickup were stolen from Thomas Vick’s residence in Bosque County on May 16, 2003. Law enforcement officers in neighboring Coryell County discovered the stolen pickup on May 22 during an unrelated drug investigation at premises occupied by Paul Bundrant (and owned by his mother). Bundrant, David Sneed, and Sid Harmon were on the premises when the officers executed the search warrant which led to the discovery of the pickup. Bundrant was arrested on a drug charge. After the officers impounded the pickup and confirmed that it was stolen, they discovered that some firearms had also been stolen with the pickup. They returned and searched Bundrant’s property for the stolen firearms but found none.

Sneed testified that Cocke had brought the pickup to Bundrant’s property a few days before the raid. Cocke sold two firearms to Sneed on that day for $50 apiece. Sneed thought Cocke “[sjeemed like a des-parate man” with “no money, no cigarettes or nothing.” At some point during the course of the drug raid, the officers mentioned the stolen firearms. Sneed told them that he had purchased two firearms from Cocke and that he would bring them in. The firearms were identified as two of the five stolen from Vick’s residence. Vick testified that these firearms were worth $800 and $1,000 respectively. Sneed also told the investigators where two of the other stolen firearms were located on Bun-drant’s property.

Officers then obtained consent from Bundrant to search the property, where they recovered the two stolen firearms Sneed had told them about. Bundrant testified that Warner Massingill, an acquaintance of his, and Cocke, whom he had not met before, stayed on his property a few days in mid-May. Cocke returned a few days later with the stolen pickup. Cocke gave Bundrant the two firearms as “rent” for allowing Cocke to stay on his property. When Bundrant saw that Cocke and Massingill had removed the rear bumper from the pickup and were “sanding on it,” Bundrant advised them that the pickup needed to be taken elsewhere if it was stolen. Massingill told Bundrant that they would. Cocke and Massingill were gone the next day, and Bundrant did not see the pickup either.

Bundrant overheard Cocke offer to sell another firearm to Sid Harmon. Harmon’s father testified that Sid later sold him what turned out to be the last of the stolen firearms for $100.

At trial, Cocke argued that Bundrant and Sneed were accomplice witnesses because of their possession of property stolen in the Vick burglary. However, the court denied Cocke’s request to include an accomplice-witness instruction in the charge.

Cocke contends in his sole issue that the court erred by denying his request for an accomplice-witness instruction because Bundrant and Sneed are either accomplices as a matter of law or a fact issue was raised on this issue which the jury should have been instructed to resolve.

“A defendant is entitled to an instruction on [a defensive issue] if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.” Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001). The purpose of this rule is to ensure “that the jury, not the judge, will decide the relative credibility of the evidence.” Granger v. State, 3 S.W.3d 36, 38 (Tex.Crim.App.1999); Prenger v. State, 108 S.W.3d 501, 505 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted. See id.

Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.).

A defendant cannot be convicted on the testimony of an accomplice unless that testimony is corroborated by other evidence which tends to connect the defendant with the commission of the offense. Tex.Code Ceim. PROC. Ann. art. 38.14 (Vernon 2005).

“An accomplice participates with a defendant before, during, or after the commission of a crime and acts with the required culpable mental state.” Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App.2004). This participation must involve an affirmative act which promotes the commission of the crime. A person is an accomplice as a matter of law if the person “is susceptible to prosecution for the offense with which the accused is charged or a lesser included offense.” Id.

A trial court has no duty to charge the jury on the accomplice-witness rule unless there is no doubt or the evidence clearly shows that a witness is an accomplice as a matter of law. If conflicting evidence is presented on a witness’s status as an accomplice or if it is unclear whether the witness is an accomplice, “then the trial court must leave to the jury the question of whether the inculpatory witness is an accomplice witness as a matter of fact under instructions defining the term ‘accomplice.’ ” Id.

A person need not “actually participate in the commission of the offense to be criminally responsible,” nor must the person “be physically present at the commission of the offense” to be considered a party. Guevara v. State, 152 S.W.3d 45, 51-52 (Tex.Crim.App.2004). Thus, when there is independent evidence of a recent burglary, a defendant’s unexplained possession of property stolen in that burglary may constitute sufficient evidence to convict. See Christopher v. State, 833 S.W.2d 526, 527-28 (Tex.Crim.App.1992); Tabor v. State, 88 S.W.3d 783, 786 (Tex.App.-Tyler 2002, no pet.); Dixon v. State, 43 S.W.3d 548, 552 (Tex.App.-Texarkana 2001, no pet.); Jackson v. State, 12 S.W.3d 836, 839 (Tex.App.-Waco 2000, pet. ref'd).

To be sufficient, the defendant’s possession of the stolen property must be personal, recent, and unexplained. Tabor, 88 S.W.3d at 786; Sweeny v. State, 925 S.W.2d 268, 270 (Tex.App.-Corpus Christi 1996, no pet.); Dickerson v. State, 740 S.W.2d 567, 570 (Tex.App.-Fort Worth 1987, pet. ref'd). If the defendant offered an explanation for possessing the stolen property when he was first asked to explain, then the record must demonstrate that the explanation is false or unreasonable before the evidence will support a conviction. See Prodan v. State, 574 S.W.2d 100, 102 (Tex.Crim.App. [Panel Op.] 1978); Tabor, 88 S.W.3d at 786; Dixon, 43 S.W.3d at 552; Jackson, 12 S.W.3d at 839. Whether the explanation is false or unreasonable is an issue to be determined by the trier of fact. See Prodan, 574 S.W.2d at 103; Tabor, 88 S.W.3d at 786; Jackson, 12 S.W.3d at 840.

Here, the parties dispute whether Bun-drant’s and Sneed’s possession of the stolen firearms was recent or unexplained. Regarding recency, the evidence (viewed in a light most favorable to Cocke) is that Bundrant and Sneed came into possession of the stolen firearms within a few days after the burglary.

Bundrant testified that when asked he told the investigating officer that Cocke had given him two firearms and told the officer where he had stored those firearms. The State offered no evidence to refute Bundrant’s explanation of how he came into possession of the stolen firearms. Nevertheless, it was for the jury to decide whether Bundrant provided a reasonable explanation for his possession of the stolen firearms. See Prodan, 574 S.W.2d at 103; Tabor, 88 S.W.3d at 786; Jackson, 12 S.W.3d at 840.

Sneed brought the stolen firearms he had to the investigating officers and explained that he had purchased them from Cocke. As with Bundrant’s explanation, the State offered no evidence to refute Sneed’s explanation. Cocke contends that Sneed’s explanation is unreasonable because he paid far less than market value for the firearms he bought. See Billups v. State, 119 Tex.Crim. 57, 46 S.W.2d 973, 974 (1932) (defendant entitled to accomplice-witness instruction where witness had purchased stolen property from defendant for less than market value). As with Bundrandt’s explanation, it was for the jury to decide whether Sneed provided a reasonable explanation for his possession of the stolen firearms. See Prodan, 574 S.W.2d at 103; Tabor, 88 S.W.3d at 786; Jackson, 12 S.W.3d at 840.

The jury should have been instructed to determine whether Bundrant and Sneed offered reasonable explanations for their possession of the recently stolen firearms. See Prodan, 574 S.W.2d at 103; Tabor, 88 S.W.3d at 786; Jackson, 12 S.W.3d at 840. The jury should have been further instructed that, if it determined that Bun-drandt’s and Sneed’s explanations were unreasonable, it could not convict Cocke absent evidence tending to connect him to the offense. See Paredes, 129 S.W.3d at 536. Thus, the court erred by denying Cocke’s request for an accomplice-witness instruction. However, this error does not require reversal unless Cocke suffered “some harm.” Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App.2002).

A defendant is not harmed by the erroneous denial of a requested accomplice-witness instruction if: “(1) there is non-accomplice evidence, and (2) there is no rational and articulable basis for disregarding the non-accomplice evidence or finding that it fails to connect the defendant to the offense.” Id. at 633.

The non-accomplice evidence in this case cannot be characterized as “substantial.” Cf. id. (citing Medina v. State, 7 S.W.3d 633 (Tex.Crim.App.1999)). The non-accomplice evidence in this case comes from Vick, who testified that Cocke is his former son-in-law. Vick testified that the keys to the stolen pickup were removed from an antique coffee can which stayed in an inconspicuous location on top of the china cabinet with other vases, jars, and collectibles. The coffee can had been taken from the shelf it was on and emptied onto the dining room table. It did not appear that any of the other items on the shelves of the china cabinet had been disturbed. Vick opined that Cocke would likely have been familiar with the location of this coffee can and its contents, although he was not certain of this.

Because the non-accomplice evidence in this case is tenuous at best, we conclude that Cocke suffered “some harm” because of the court’s denial of his requested accomplice-witness instruction. Thus, we sustain his sole issue.

We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion.

Chief Justice GRAY concurring.

TOM GRAY, Chief Justice

concurring.

Under the authority of Billups, an instruction defining what an accomplice is and a generic accomplice-witness instruction under article 38.14 should have been given. Billups v. State, 46 S.W.2d 973 (Tex. Crim. App. 1932); Tex. Code CRIM. Peoc. Ann. art 38.14 (Vernon 2005).

Under the authority of Herron, the failure to give the instruction was some harm. Herron v. State, 86 S.W.3d 621 (Tex. Crim. App. 2002).

I concur in the judgment of the majority.

Any further discussion in the majority opinion about what should have been included in the charge and what the jury could or could not do based upon its determination of whether Bundrandt or Sneed were accomplices I do not join, because it is unsupported by the statute (art. 38.14), or the case law, is unnecessary for the disposition of this appeal, and is merely an advisory opinion which we have no jurisdiction to render.

      . Bundrant testified that Cocke brought the stolen pickup to his property between 3 and 5 days before the police raid. Sneed testified that Cocke sold him two firearms the same day. Bundrant testified that Cocke gave him the two firearms for "rent” about 1 or 2 days later.

      . Defense counsel referred to a written statement Bundrant gave the investigating officer during counsel’s cross examination of Bun-drant. From the context' of this cross examination, it appears that' Bundrant told the officer that he had initially declined Cocke’s offer to give him the firearms. However, Bun-drant’s statement was not offered in evidence.


author: FELIPE REYNA, Justice.

text:
    Carl LONG, Appellant, v. Elmer TANNER, Appellee.
    No. 10-04-00160-CV.
    Court of Appeals of Texas, Waco.
    July 13, 2005.
    Rehearing Overruled Aug. 2, 2005.

      Carl Long, Ft. Stockton, pro se.
    Steve A. Keathley, Navarro County Criminal Dist. Atty., Corsicana, for appel-lee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

After this Court affirmed Carl Long’s conviction for manufacturing methamphetamine, Long filed suit against the lead investigator in the case Elmer Tanner alleging fraud, violation of equal protection and due process, perjury, and aggravated perjury. The trial court dismissed Long’s suit as frivolous. Long presents nine issues challenging the dismissal. We will affirm.

Long contends in his first issue that the court erred by dismissing his suit. Because Long’s first issue is dispos-itive, we do not reach the remainder of his issues.

Long’s suit is governed by Chapter 14 of the Civil Practice and Remedies Code. Under section 14.003(a), a trial court may dismiss an inmate’s suit if the court finds that claims asserted therein are “frivolous or malicious.” Tex. Civ. Prac. & Rem.Code Ann. § 14.003(a)(2) (Vernon 2002). A claim is frivolous if it “has no arguable basis in law or in fact.” Id. § 14.003(b)(2) (Vernon 2002).

A court need not hold a hearing to make this determination. See id. § 14.003(c) (Vernon 2002) (“the court may hold a hearing”) (emphasis added); Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex.App.-Texarkana 2003, no pet.); Thomas v. Knight, 52 S.W.3d 292, 293 n. 2 (Tex.App.-Corpus Christi 2001, pet. denied). However, if the court determines without a hearing that a claim is frivolous, that decision may be affirmed on appeal only if the claim has no arguable basis in law. Retzlaff v. Tex. Dept. of Crim. Just., 94 S.W.3d 650, 653 (Tex.App.Houston [14th Dist.] 2002, pet. denied); Smith v. Tex. Dept. of Crim. Justice-Institutional Div., 33 S.W.3d 338, 340 (Tex.App.-Texarkana 2000, pet. denied).

We review this issue de novo. Retzlaff, 94 S.W.3d at 653; Gill v. Boyd Distrib. Ctr., 64 S.W.3d 601, 603 (Tex.App.-Texarkana 2001, pet. denied). We take the allegations of the plaintiffs petition as true. Mullins, 111 S.W.3d at 272; Jackson v. Tex. Dept. of Crim. Just., 28 S.W.3d 811, 813 (Tex.App.-Corpus Christi 2000, pet. denied). We examine the claims asserted and the relief requested “to determine whether, as a matter of law, the petition stated a cause of action that would authorize relief.” Spurlock v. Johnson, 94 S.W.3d 655, 658 (Tex.App.-San Antonio 2002, no pet.) (quoting Jackson, 28 S.W.3d at 813).

Here, Long asserts claims for fraud, violation of equal protection and due process, perjury, and aggravated perjury, contending: (1) Tanner violated his right to equal protection by sending a confidential informant to convince Long to help manufacture methamphetamine; (2) Tanner chose to arrest only Long and not another person on the premises, whom Long contends was the confidential informant; (3) Tanner relied on an invalid search warrant to enter Long’s residence on the date of the arrest; (4) Tanner made false statements in the affidavit he executed for issuance of the search warrant; and (5) Tanner provided perjured testimony in Long’s trial.

As relief, Long requests: (1) a new criminal trial; (2) a civil jury trial on the allegations of this suit; (3) $200,000 for lost wages and property; (4) punitive damages; (5) costs and attorney’s fees; and (6) general relief.

Long’s first claim is for fraud.
The elements of a cause of action for fraud are: “(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.”

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 n. 45 (Tex.2002) (quoting In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex.2001) (orig.proeeeding)).

Long does not allege that Tanner made any representations to him and does not allege that he relied on any representations Tanner made. Thus, his petition does not state an arguable claim for fraud.

We construe Long’s equal protection claim as one of selective enforcement. “To successfully bring a selective prosecution or enforcement claim, a plaintiff must prove that the government official’s acts were motivated by improper considerations, such as race, religion, or the desire to prevent the exercise of a constitutional right.” Beeler v. Rounsavall, 328 F.3d 813, 817 (5th Cir.), cert. denied, 540 U.S. 1048, 124 S.Ct. 820, 157 L.Ed.2d 697 (2003) (quoting Bryan v. City of Madison, 213 F.3d 267, 277 (5th Cir.2000)). “It must be shown that the selective enforcement ‘was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’ ” Id. (quoting Allred’s Produce v. USDA, 178 F.3d 743, 748 (5th Cir.1999) (quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962))).

Long does not assign any constitutionally impermissible bases for Tanner’s decision to arrest him and not attempt to arrest the other person on the premises. Long’s failure to do so is fatal to his equal protection claim. See Beeler, 328 F.3d at 817; Bryan, 213 F.3d at 277.

We construe Long’s “due process” claim to rest on his allegations that Tanner employed a confidential informant to “get” Long to engage in the manufacture of methamphetamine and that Tanner relied on an invalid search warrant.

The Seventh Circuit has concluded that a person may assert a private cause of action under section 1983 for a due process violation due to the manner in which a criminal investigation was conducted in very limited circumstances. See Smith v. Lang, No. 96-1951, 114 F.3d 1192, 1997 WL 253190, *2 (7th Cir. May 7, 1997) (not designated for publication). “[A] cause of action exists only where the state law violation is so extreme that it rises to the level of a due process violation, such as when the state law violation ‘create[s] a serious risk of convicting an innocent person.’ ” Id. (quoting Eaglin v. Welborn, 57 F.3d 496, 501 (7th Cir.1995)). “[Vliolations of state entrapment laws do not necessarily create such a risk because the defense of entrapment is an ‘excuse for, not a denial of, crime,’ and thus ‘does not bear on innocence.’ ” Smith, 114 F.3d 1192, 1997 WL 253190, at *2 (quoting Eaglin, 57 F.3d at 501),

Long’s conviction has been affirmed. He contends that his criminal conduct was justified; he does not deny his involvement. Thus, we hold as a matter of law that Long has not alleged an arguable claim that his right to due process has been violated.

Long also asserts causes of action for perjury and aggravated perjury. However, Texas does not recognize a civil cause of action for perjury (or aggravated perjury). See Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998); see also Spurlock, 94 S.W.3d at 658 (“the Texas Penal Code does not create private causes of action”); A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 379 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (same). Thus, we hold as a matter of law that Long has not alleged an arguable claim for perjury or aggravated perjury.

We overrule Long’s first issue and affirm the judgment.

      . See Long v. State, 137 S.W.3d 726 (Tex.App.Waco 2004, pet. ref’d).

      . Long’s first issue states, "The trial court's dismissal order is wrong and false. Trial court does not want the truth proven.”

      .Long’s remaining issues concern: (1) the trial court's finding that he raised or could have raised most of the claims asserted in his petition during the course of his criminal trial; and (2) various aspects of the manner in which the criminal investigation and his trial were conducted.


text:
    FORTIS BENEFITS, Appellant, v. Vanessa CANTU and Sundance Resources, Inc., Appellees.
    No. 10-04-00080-CV.
    Court of Appeals of Texas, Waco.
    July 13, 2005.
    Rehearing Overruled Aug. 9, 2005.

      Loren R. Smith, Kelly, Smith & Murrah, P.C., Thomas A. Laucius, Laucius & Asso., Houston, for appellant.
    Thomas B. Cowart, Windle Turley PC, Kevin J. Cook, Payne & Blanchard LLP, Dallas, for appellees.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

On April 12, 1998, Vanessa Cantu, then a minor, was severely injured and rendered a paraplegic in a motor vehicle accident. Suit was filed against, among others, the vehicle’s manufacturer (Ford Motor Company), the vehicle’s driver (Michael Patman), and Patman’s employer (Sundance Resources, Inc.). Vanessa sought to recover, among other damages, actual damages for past and future medical expenses. In March 2000, Fortis Benefits, which provided health insurance benefits to Vanessa through a health insurance policy issued to her father, intervened to recover through subrogation or reimbursement the benefits that it had paid for Vanessa’s health care as a result of the accident. After numerous delays (during which Vanessa reached majority), the case was set for trial for July 21, 2008.

At final pretrial on July 15, 2003, Fortis agreed on the record with all other parties that Fortis would be excused from attending the pretrial and trial until the post-verdict phase and that Fortis would look only to the plaintiff to resolve its subrogation or reimbursement claim. Before trial began, Vanessa settled her claims with the defendants for $1,445,000 and agreed with Sundance that she would be wholly responsible for Fortis’s intervention claims and would secure a dismissal with prejudice of Fortis’s subrogation claim against Sun-dance. Fortis was not involved in the settlement.

After being unable to reach an agreement with Fortis, Vanessa filed a motion for summary judgment, asserting that, because she had not been “made whole” in the settlement, Fortis was not entitled to recover anything on its subrogation or reimbursement claim, which at that time totaled $247,534.14. Vanessa’s summary judgment evidence included her attorney’s affidavit, which stated that her past medical expenses totaled at least $378,500 and which attached two “life care plans” that estimated Vanessa’s future medical expenses to be approximately $1.7 million and $5.3 million, respectively. In its summary judgment response, Fortis included a written objection, but it did not specifically object to the affidavit testimony on the amount of Vanessa’s past medical expenses, nor did it object on hearsay grounds to the life care plans attached to the attorney’s affidavit.

Fortis filed an affidavit of employee Cindy Drew on its contractual right to reimbursement and the amount ($247,534.14) that it had paid on Vanessa’s $378,500 in medical expenses. The Drew affidavit stated that Fortis was not conceding that Vanessa’s future medical care will be as high as the amount stated in her attorney’s affidavit. Drew’s affidavit also addressed its contingent obligations to Vanessa’s future medical expenses:

it is my opinion that unless the Court holds that Fortis is relieved of paying future benefits in this case, there is a reasonable probability that Fortis will be obligated to process Vanessa Cantu’s future medical benefits in accordance with the terms and conditions of her policy, so long as she continues to be an eligible insured as that term in defined under the policy, continues to pay the premiums on her policy, and continues to renew her policy with Fortis. As of this date, Vanessa Cantu’s policy with Fortis is in full force and effect, and Fortis continues to process her medical benefits in accordance with the terms and conditions of her policy with Fortis.

But Fortis did not provide any evidence on the specific amount ofiVanessa’s future medical expenses and thus create a fact issue as to that amount. Vanessa’s Fortis policy has a lifetime maximum benefit amount of $2 million, and $247,534.14 of that limit had been exhausted.

The trial court thus had before it uncon-troverted evidence that Vanessa’s past ($378,500) and future (the $1.7 million and $5.3 million life care plans) medical expenses alone exceeded either $2 million or $5.6 million, which Vanessa argued conclusively established that the $1,445,000 settlement and the benefits paid by Fortis had not made her whole.

After a hearing, the trial court granted Vanessa’s summary judgment motion but granted more relief than was requested by ordering that Fortis “take nothing in its intervention in this lawsuit.” Sundance then filed an amended motion for judgment, arguing that any claim by Fortis against Sundance is additionally barred by the pretrial agreement that Fortis would look only to Vanessa to satisfy its subrogation claims against the defendants. The trial court granted Sundance’s amended motion for judgment. This appeal followed. We will affirm.

In its first issue, Fortis complains that the “made-whole doctrine” does not apply to its contractual right of reimbursement from Vanessa. “An insurer is not entitled to subrogation if the insured’s loss is in excess of the amounts recovered from the insurer and the third party causing the loss.” Ortiz v. Great So. Fire & Cas. Ins. Co., 597 S.W.2d 342, 343 (Tex.1980); see also Oss v. United Serv.’s Auto. Ass’n, 807 F.2d 457, 459-60 (5th Cir.1987) (noting and citing Ortiz); Texas Ass’n of School Boards, Inc. v. Ward, 18 S.W.3d 256, 261 (Tex.App.-Waco 2000, pet. denied) (same); Esparza v. Scott & White Health Plan, 909 S.W.2d 548, 551-52 (Tex.App.Austin 1995, writ denied) (same).

While an insurance contract providing expressly for subrogation may remove from the realm of equity the question of whether the insurer has a right to subro-gation, it cannot answer the question of when the insurer is actually entitled to subrogation or how much it should receive. See Duval County Ranch Co. v. Alamo Lumber Co., 663 S.W.2d 627, 637 (Tex.App.-Amarillo 1983, writ ref'd n.r.e.); see also Shelter Ins. Co. v. Frohlich, 243 Neb. 111, 498 N.W.2d 74, 79 (1993). The principal purpose of an insurance contract is to protect the insured from loss, thereby placing the risk of loss on the insurer. Ortiz, 597 S.W.2d at 344. The insurer has accepted payments from the insured to assume this risk of loss. Therefore, if “either the insurer or the insured must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.” Id. (quoting Garrity v. Rural Mut. Ins. Co., 77 Wis.2d 537, 253 N.W.2d 512, 514 (1977)). This basic principle cannot be summarily overcome by a boiler-plate provision in an insurance contract that purports to entitle the insurer to subro-gation out of the first monies received by the insured. To find otherwise would be to defeat the fundamental contractual expectations of the average insured. Oss v. United Servs. Auto. Ass’n, 807 F.2d 457, 460 (5th Cir.1987).

Esparza, 909 S.W.2d at 551-52.

Fortis’s contractual subrogation and reimbursement rights are subject to the made-whole doctrine. Ward, 18 S.W.3d at 259-61; Esparza, 909 S.W.2d at 551-52. Moreover, the subrogation and reimbursement clause is not an assignment, which the made-whole doctrine might not apply to. See Silverthorne v. Mosley, 929 S.W.2d 680, 681 (Tex.App.-Austin 1996, writ denied) (mere promise to pay debt from designated fond does not create assignment); cf. Lexington Ins. Co. v. Gray, 775 S.W.2d 679 (Tex.App.-Austin 1989, writ denied) (distinguishing equity’s application to assignment and to subrogation), disapproved on other grounds by Amberboy v. Societe de Banque Privee, 831 S.W.2d 793 (Tex.1992). We overrule issue one.

In its third issue, Fortis asserts that the summary judgment is error because Vanessa did not demonstrate as a matter of law that she was not made whole. In response to Vanessa’s summary judgment motion, Fortis did not object to the life care plans as hearsay or to Vanessa’s attorney’s affidavit testimony that her past medical expenses were at least $378,500 and that her total past and future medical expenses exceed $2 million, based on the life care plans. Nor did Fortis file any evidence specifically relating to the amount of Vanessa’s future medical expenses to create a fact issue on whether Vanessa had been made whole by the settlement and by Fortis’s payment of health care benefits on her behalf. Fortis filed summary judgment evidence only on its contractual right to reimbursement, the amount that it had paid on Vanessa’s behalf, and its contingent obligation to “process” future benefits.

The life care plans estimate Vanessa’s future medical expenses to be approximately $1.7 million and $5.3 million, respectively. Assuming that the life care plans and the affidavit testimony on past medical expenses are hearsay, this evidence was not objected to by Fortis on this basis, and as such, it is admissible, competent, and sufficient to support summary judgment. See Tex.R. Evid. 802 (stating that hearsay not objected to has probative value); Choctaw Properties, L.L.C. v. Aledo ISD, 127 S.W.3d 235, 241 (Tex.App.Waco 2003, no pet.) (hearsay must be objected to and ruling must be obtained to preserve a complaint for appeal); Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 396 (Tex.App.-Corpus Christi 2000, no pet.) (hearsay not specifically objected to was competent to support summary judgment motion); In re J.A.M., 945 S.W.2d 320, 322 (Tex.App.-San Antonio 1997, no writ) (inadmissible hearsay in summary judgment affidavit has probative value if not objected to).

We hold that Vanessa’s summary judgment evidence that her past and future medical expenses exceed $2 million is competent and sufficient to establish as a matter of law that she was not made whole by the $1,445,000 received in settlement and the $247,534.14 in health insurance benefits paid by Fortis. And if we assume that Fortis will process and pay Vanessa’s future medical care, her Fortis policy has a lifetime maximum benefit of $2 million, of which $247,534.14 has been exhausted. Under the life care plan with a future medical expense estimate of approximately $5.3 million, even with the complete exhaustion of Vanessa’s $2.0 million lifetime maximum benefit under her Fortis policy, the summary judgment evidence established that she would not be made whole by the $1,445,000 received in settlement and the $2 million in health insurance benefits paid by Fortis.

We also hold that, under these facts, Vanessa was not required to allocate the settlement amount to her various damages because her insured interest alone — her medical expenses — exceeds the settlement and health insurance benefits under the respective life care plans. In conclusion, Vanessa established that under both life care plans, her insured interest — medical expenses- — sustained an injury in excess of the total compensation (settlement plus health insurance benefits) that she had received or might receive. We overrule issue three.

In its second issue, Fortis complains that the trial court erred in granting summary judgment by ignoring other alleged equitable issues (e.g., settling without the consent of Fortis) relating to For-tis’s subrogation rights. But based on the evidence and circumstances in this case, we do not find any inequitable conduct on Vanessa’s part that would constitute grounds for finding that she was “made whole” by the settlement or that she should otherwise share any of the settlement proceeds with Fortis. Cf. Esparza, 909 S.W.2d at 552 (affirming trial court’s award of one-half of health insurance benefits paid on behalf of plaintiff where plaintiff settled with defendant for less than policy limits, released defendant, and non-suited claim for past medical expenses). We overrule issue two.

In its fourth issue, Fortis complains about the trial court’s granting of Sun-dance’s amended motion for partial judgment on the ground that the trial court had already granted Vanessa’s summary judgment motion and had completely disposed of all of Fortis’s claims. In granting Vanessa’s motion for summary judgment and by ordering that Fortis “take nothing in its intervention in this lawsuit,” the trial court granted excess relief as to the defendants, including Sundance. However, the trial court corrected its error during its plenary power period, apparently finding that Fortis’s pretrial agreement precluded a recovery from the defendants. Furthermore, Fortis was required to bring an issue on appeal concerning the summary judgment order’s excess relief. Beathard Joint Venture v. West Houston Airport Corp., 72 S.W.3d 426, 436 (Tex.App.-Texarkana 2002, no pet.) (holding that appellant must raise as an issue on appeal that excess relief was improperly granted in summary judgment order); Toonen v. United Serv’s. Auto. Ass’n, 935 S.W.2d 937, 942 (Tex.App.-San Antonio 1996, no writ) (same). By not complaining of or briefing the summary judgment order’s excess relief, Fortis has waived any complaint, and the order cannot be reversed. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990); SMI/USA Inc. v. Profile Technologies, Inc., 38 S.W.3d 205, 208 n. 3 (Tex.App.-Waco 2001, no pet.).

Having so found, we need not consider the remainder of Fortis’s issues involving whether it had released its claims against the defendants.

The trial court’s judgment is affirmed.

Chief Justice GRAY dissents with a note: Chief Justice Gray notes that the Court’s opinion and judgment dated May 25, 2005 are being withdrawn in a separate order and replaced with this opinion and a judgment of this same date.

      . Fortis's objections were that the attorney’s affidavit did not lay a foundation to demonstrate his qualifications as an expert to give opinion testimony and that it did not "present clear, undisputed evidence, in that he does not address the issue of whether his client will have to pay for her future medical care.” In an order, the trial court overruled these objections.

      . Plainly, had Vanessa allocated the $1,445,000 settlement among her recoverable damage elements, Fortis’s position would only have worsened, especially with the severity and permanence of her injuries, and the fact that the settlement and the health insurance did not make her whole would have been much more obvious.


author: BOB McCOY, Justice.

text:
    Augustine CABRAL, Appellant, v. The STATE of Texas, State.
    No. 2-04-288-CR.
    Court of Appeals of Texas, Fort Worth.
    July 14, 2005.
    Rehearing Overruled Aug. 4, 2005.

      Donald Davidson, Bedford, for appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, Steven W. Conder, Mitchell Poe, Lori Varnell, Asst. Crim. Dist. Attys., Fort Worth, for appel-lee.
    PANEL B: HOLMAN, GARDNER, and McCOY, JJ.
   MEMORANDUM OPINION

BOB McCOY, Justice.

I. Introduction

A jury found appellant, Augustine Cabral (“Cabral”), guilty of aggravated sexual assault of a child and indecency with a child by exposure. The jury assessed punishment at fifty years’ imprisonment for aggravated assault of a child and ten years’ imprisonment for indecency with a child, and the trial court sentenced him accordingly. In two issues, Cabral contends that his convictions of both aggravated sexual assault and indecency with a child violate the Texas Penal Code and the Double Jeopardy Clause of the United States Constitution. We affirm.

II. Background Facts and Procedural History

The record reflects that Cabral was indicted for aggravated sexual assault of a child and indecency with a child by exposure. Count one of the indictment charged Cabral with aggravated sexual assault and alleged that on or about the first day of June 2000, Cabral intentionally and knowingly caused the anus of the complainant, a child younger than fourteen years of age, to contact his sexual organ. Count two of the indictment charged Cabral with indecency with a child by exposure and alleged that on or about the first day of June 2000, Cabral intentionally exposed his genitals to the complainant, a child younger than seventeen years, knowing the complainant was present and with intent to arouse or gratify his sexual desire.

At trial, the complainant testified as to incidents of abuse involving Cabral. She testified that when she was about nine years old she would stay after school with her half-brother’s grandmother, Tina Cabral, who is also Cabral’s mother. She testified that she would go into Tina’s room to play Nintendo and that Cabral would come into the room while she was there, climb on the bed, lower his shorts and rub his penis on her. She testified that on one particular occasion, Cabral rubbed his penis on her face and that he wanted her to open her mouth so he could insert his penis, but that she did not open her mouth. She testified that Cabral then tried to remove her blue jeans, but that he was unsuccessful because she was able to get up and leave the room.

She also testified about another incident when her mother sent her to Tina’s house to get her brother. She testified that after her brother left the house to return home, Cabral pulled her into his bedroom. She testified that Cabral removed all his clothing and then took her shorts off. She stated that he then rubbed his penis all over her bottom and that he tried to penetrate her anus with his penis. She testi-fled that Cabral touched her anal opening with his penis, but that he did not penetrate her anus because she clinched her bottom to keep him from doing so. She testified that she saw Cabral’s penis, that “white stuff’ came out of his penis, and that she was able to run away by “nudging him ... real hard” with her elbow.

III. Violation of the Texas Penal Code

In his first issue, citing Patterson v. State, Cabral contends that the Texas Penal Code does not permit separate convictions for both aggravated sexual assault of a child and indecency with a child by exposure when the exposure was demonstrably part of the sexual assault. See 152 S.W.3d 88, 92 (Tex.Crim.App.2004); see also Tex. Penal Code Ann. §§ 8.01, 3.03, 21.11, 22.021 (Vernon 2003). In that regard, Cabral asserts that he cannot be convicted of both offenses here because the indecent exposure was committed in preparation for the aggravated sexual assault, and thus was subsumed by the greater offense.

The State responds that Cabral was charged with separate counts of aggravated sexual assault and indecency by exposure occurring “on or about” June 1, 2000. The State asserts that this “on or about” language of the indictment allows it to present evidence of incidents prior to the presentment of the indictment as long as it falls within the statutory limitations period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App.1997). The State points out that the complainant’s testimony reflects that Cabral committed indecency by exposure and aggravated sexual assault on completely separate occasions.

Cabral acknowledges that the complainant testified about multiple incidents of sexual abuse but argues that the complainant’s testimony regarding incidents occurring on a date different from the date alleged in the indictment cannot support his convictions. He argues that convicting him based upon testimony regarding incidents occurring other than on the date alleged in the indictment violates his constitutional and statutory rights to (1) be fairly and adequately appraised of the specific offense with which he is charged, (2) not to be misled to his prejudice regarding the conduct of which he is accused, (3) be tried only on charges which have been the subject of a grand jury indictment, and (4) the right to not have the indictment modified or the offense changed without his knowledge or consent.

In his reply brief, Cabral argues that because the indictment alleged both instances occurred on the same date, both he and his trial counsel believed that counts one and two arose from a single incident. He suggests that the record reflects that the State also believed that both counts arose out of the same incident, but that in light of the court of criminal appeals decision in Patterson, the State is now attempting to argue that count two arose out of a separate incident. Cabral admits, however, that he failed to bring this issue to the attention of the trial court and that he is raising it for the first time on appeal.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex.R.App. P. 33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or the complaining party must have objected to the trial court’s refusal to rule. Tex. R.App. P. 33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex.Crim.App.2004). Except for complaints involving systemic (or absolute) requirements, or rights that are waivable only, which are not involved here, all other complaints, whether constitutional, statutory, or otherwise, are forfeited by failure to comply with Rule 33.1(a). See Mendez, 138 S.W.3d at 342. Preservation of error is a systemic requirement that this court should review on its own motion. Martinez v. State, 22 S.W.3d 504, 507 n. 7 (Tex.Crim.App.2000); Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1993) (op. on reh’g), cert. denied, 511 U.S. 1152, 114 S.Ct. 2184, 128 L.Ed.2d 902 (1994).

To the extent that Cabral’s argument is that he was denied notice of the charges against him, we note that the indictment charged Cabral with two separate offenses and that he did not file a motion to quash the indictment. Accordingly, we conclude that Cabral has failed to preserve error, if any, in the indictment. See Perkins v. State, 779 S.W.2d 918, 924-25 (Tex.App.Dallas 1989, no pet.) (holding that to the extent the indictment failed to provide appellant adequate notice, appellant waived any such error by failing to raise it in a motion to quash). Further, at no time during trial did Cabral inform the trial court of the issue he now brings on appeal. Having failed to raise this issue before the trial court, Cabral has failed to preserve this issue for our review. See Tex.R.App. P. 33.1(a)(1); Mosley, 983 S.W.2d at 265. Cabral’s first issue is overruled.

Y. Double Jeopardy

In his second point, Cabral contends that he received multiple punishments for the same offense in violation of the Double Jeopardy Clause of the United States Constitution because, under the facts of this case, indecency with a child by exposure is a lesser included offense of aggravated sexual assault. See U.S. Const, amends. V, XIV. Cabral admits, however, that he did not raise his multiple punishment claim to the trial court and that he is raising the issue for the first time on appeal.

Generally, to preserve a double jeopardy claim, a defendant must object at or before the time the charge is submitted to the jury. Gonzalez v. State, 8 S.W.3d 640, 642 (Tex.Crim.App.2000). An appellant is excused from the preservation requirement, however, when (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face of the record and (2) enforcement of usual rules of procedural default serves no legitimate state interests. Id. at 643.

The record reflects that Cabral was indicted for two separate offenses both alleged to have occurred “on or about” June 1, 2000. The record further reflects that the complainant testified regarding two separate and distinct incidents of abuse, one involving Cabral’s attempt to stick his penis in her anus, and one where Cabral rubbed his penis in her face. In that regard, Cabral admits that the “attempted anal entry” and the “face rubbing” were separate incidents which occurred on distinctly different occasions.

It is well settled that the “on or about” language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is prior to the presentation of the indictment and not so remote that prosecution is barred by the statute of limitations. Sledge, 953 S.W.2d at 256. Here, the complainant’s testimony described acts supporting each charge occurring prior to the presentation of the indictment and within the applicable statute of limitations period. Thus, we find no double jeopardy violation apparent on the face of the record. Cabral has therefore failed to meet the first prong of the exception to the preservation requirement set forth by Gonzalez. See 8 S.W.3d at 643. Accordingly, we hold that Cabral failed to preserve his double jeopardy claim for our review. See id. at 642-46 (holding that a defendant could not raise a claim of multiple punishments for the first time on appeal and that failure to bring the issue to the attention of the trial court forfeited the claim; no express waiver of double jeopardy rights was necessary). Cabral’s second issue is overruled.

VI. Conclusion

Having overruled Cabral’s two issues, we affirm the trial court’s judgment.

      . See Tex.R.App. P. 47.4.

      . Cabral is taking the position that because the indictment alleges that both offenses occurred "on or about” June 1, 2000, the indictment is alleging that both offenses occurred on the same day.

      . We come to this conclusion based on the date of the presentation of the indictment, June 27, 2002, and the complainant’s testimony that (1) she was born in 1989, and (2) the offenses occurred when she was about nine years old.

      . The limitations period for either indecency with a child or aggravated sexual assault is ten years from the complainant’s eighteenth birthday. See Tex.Code Crim. Proc. Ann. art. 12.01(5) (Vernon 2005).