text:
    Benjamin Clay HAYNES, Appellant v. Donnia Lenn HAYNES, Appellee.
    No. 05-04-01007-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 5, 2006.

      James F. Newth, Dallas, for Appellant.
    Richard Robertson, Koons, Fuller, Van-den Eykel & Robertson, and Allen R. Griffin, Plano, William J. Akins and Brad M. Lamorgese, Cooper & Scully, P.C., Dallas, for Appellee.
    Before Justices WRIGHT, MOSELEY, and LANG.
   OPINION

Opinion by

Justice MOSELEY.

In this appeal, we determine whether the trial court properly entered a divorce decree based on a mediated settlement agreement. Benjamin Clay Haynes (Husband) appeals the trial court’s division of property in the divorce decree granted in this suit for divorce brought by Donnia Lenn Haynes (Wife). In a single point of error, Husband argues the trial court erred by entering a divorce decree that modified the terms of the mediated settlement agreement between Husband and Wife. We affirm the trial court’s judgment.

During the course of this divorce suit, the parties mediated and reached a written mediated settlement agreement. The agreement was signed by the parties and their attorneys, filed with the trial court, and states “THIS AGREEMENT IS NOT SUBJECT TO REVOCATION.” Attached to the agreement were several pages of terms relating to the custody and support for the parties’ minor child. Also attached was a single page spreadsheet with “Haynes v. Haynes Property division ” handwritten at the top of the page. This spreadsheet listed several assets, their net value, and contained two columns dividing the value between Husband and Wife. The total property division was approximately sixty percent to Wife and forty percent to Husband. Attached to the property division was a single sheet handwritten division of liabilities between Husband and Wife. The main settlement agreement provided that its terms would be incorporated in a final decree of divorce following the forms published in the Texas Family Law Practice Manual and prepared by Wife’s attorney. The agreement also provided that other closing documents would be prepared by the attorney for the party who would benefit thereby and would follow the practice manual forms. Any disputes regarding the interpretation or performance of the agreement, including the necessity and form of closing documents, were to be resolved by a conference call with the mediator and where possible by reference to the practice manual forms.

The primary dispute involves the division of Husband’s non-transferable employee stock options. The property division spreadsheet listed these simply as “options” with a net value that was divided sixty percent to Wife and forty percent to Husband. Wife’s attorney prepared an agreed final divorce decree containing detailed procedures for the exercise and division of the stock options and making Husband constructive trustee for the options awarded to Wife. Husband never withdrew his consent to the settlement agreement, but neither he nor his attorney signed the proposed final divorce decree. At a hearing on Wife’s motion to enter the decree, Husband objected to the procedures relating to the options because they imposed additional duties, liabilities, and burdens on him. The trial court took the case under advisement and later signed the proposed decree with some modifications. Husband appeals.

Husband argues he never agreed to the specific terms of the decree regarding the stock options such as the constructive trust, the terms relating to the exercise of the options by Wife, and the tax issues involved with exercise of the options. He states the settlement agreement is silent on these and other details included in the divorce decree. He concludes the trial court erred in entering the divorce decree because the court had no authority to enter a judgment that varied from the terms of the mediated settlement agreement. See Garcia-Udall v. Udall, 141 S.W.3d 323, 332 (Tex.App.-Dallas 2004, no pet.).

The trial court must make a just and right division of marital property in a divorce proceeding. Tex. Fam.Code AnN. § 7.001 (Vernon 1998). The trial court must also determine the rights of both spouses in any employee stock options. Id. § 7.003. The property division may be accomplished in three ways: (1) the trial court is authorized, on granting a divorce, to partition the estate of the parties; (2) a property settlement agreement may be set forth in the decree; or (3) a property settlement agreement may be incorporated by reference in the decree. Id. § 7.006; Clanin v. Clanin, 918 S.W.2d 673, 677 (Tex.App.-Fort Worth 1996, no writ). Here, the property settlement portion of the mediated settlement agreement was set out in the divorce decree.

The decree recites that the options are not transferable and may be exercised only by Husband. Husband does not dispute this fact in his brief. The decree awards Wife sixty percent of the options, but provides that the options will remain in Husbands name, with Husband as constructive trustee for Wife’s options. The decree also provides for Wife’s exercise of her options by written directions to Husband, and for various events that might affect the options such as buy-out offers, substitute options, and stock splits. The decree provides for handling any tax liability associated with the options and limits Husband’s ability to take certain actions relating to the options without Wife’s consent. The proceeds from the exercise of Wife’s options were to be paid to her after Husband deducted and paid any taxes attributable to the options and required Wife to reimburse Husband in the event the actual tax liability for the exercise of her options was more than the amount withheld from the proceeds.

Husband does not dispute the settlement agreement, but argues the divorce decree adds terms he did not agree to. However, to be an enforceable agreement:

The law does not require the parties to dictate and agree to all of the provisions to be contained in all of the documents necessary to effectuate the purposes of the agreement; it only requires the parties to reach an agreement as to all material terms of the agreement and prevents the trial court from supplying additional terms to which the parties have not agreed.

McLendon v. McLendon, 847 S.W.2d 601, 606 (Tex.App.-Dallas 1992, writ denied). Terms necessary to effectuate and implement the parties’ agreement do not affect the agreed substantive division of property and may be left to future articulation by the parties or consideration by the trial court. See id.

Here, the parties agreed to the material terms of the property division. They agreed to a specific division of their property, but they did not specify the mechanisms to implement and effectuate that division. They also agreed to execute additional documents and a divorce decree following the forms in the family practice manual. The property division spreadsheet merely allocated the value of the options between Husband and Wife. The decree includes provisions giving effect to the agreement that the non-transferable stock options would be divided between Husband and Wife. While silent on the mechanics of this division, the agreement reflects an intent to divide the options and the decree is consistent with that intent.

Similarly, the parties did not specify the manner in which their home would be conveyed, by general warranty deed, special warranty deed, or quitclaim deed; they simply agreed the home would be awarded to Wife. Husband does not challenge that the divorce decree requires him to execute a special warranty deed to Wife of his interest in the home. Nor does he complain about other provisions in the divorce decree requiring him to execute documents necessary to transfer title to vehicles or stock awarded to Wife even though these specific provisions were not mentioned in the settlement agreement. A trial court has no power to supply terms not previously agreed to by the parties; however, the parties here agreed to the material terms of their property division and nothing in the divorce decree varies from that agreement. The divorce decree’s provisions implementing and effectuating the agreed division of the options do not vary the terms of the mediated settlement agreement; rather, they carry those terms into effect. Thus, the trial court did not supply terms to which the parties had not agreed.

Husband objects to the provisions in the divorce decree regarding income tax returns for the year of divorce and indemnity for undisclosed debts and obligations. Parties agreed to sign a divorce decree incorporating the terms of the agreement and following the forms in the practice manual. The provisions in the decree regarding tax returns for the year of divorce and indemnity for any undisclosed debts follow the forms published in the practice manual. These provisions are consistent with the mediated settlement agreement.

We overrule Husband’s sole point of error. The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: Justice FRANCIS.

license: Public Domain

text:
    Shu Yung HUNG, Appellant v. Jeremy BULLOCK, Appellee.
    No. 05-05-00662-CV.
    Court of Appeals of Texas, Dallas.
    Jan. 5, 2006.
    William Chu, Law Offices of William Chu, Addison, for Appellant.
    Michael P. Delgado, Law Offices of Amis & Bell, and Kyle A. Miller, Arlington, for Appellee.
    Before Justices MORRIS, BRIDGES, and FRANCIS.
   OPINION

Opinion by

Justice FRANCIS.

The trial court dismissed Shu Yung Hung’s lawsuit against Jeremy Bullock for want of prosecution and denied Hung’s motion to reinstate. In her single issue on appeal, Hung urges the trial court abused its discretion in dismissing the case. We disagree.

Shu Yung Hung and Jeremy Bullock were involved in a motor vehicle accident on June 1, 2000. Hung sued Bullock for negligence, negligence per se, and gross negligence on January 23, 2002. Bullock subsequently filed a third party action against David Walton Warren and Hadley Auto Transport. These third party defendants prevailed in their motion for summary judgment and were dismissed from the case on December 12, 2003. The case was set for trial on February 21, 2005. On February 18, 2005, Hung filed a motion for continuance accompanied by an affidavit signed by her attorney, William Chu, stating that Chu would be out of state on “urgent personal business” and was not available for trial. Chu further testified in his affidavit that “another attorney in my firm cannot handle the trial in this cause, as I was the sole attorney who was responsible for pre-trial and trial strategy.” The trial court granted the motion for continuance and reset the trial for 9:00 a.m., March 7, 2005.

On the morning of March 7th, neither Ms. Hung nor her attorneys were present in the courtroom. At that time, counsel for Bullock moved the trial court to dismiss the case for want of prosecution but the trial court denied the motion. Chu’s associate, Glenn Lupo, arrived at court at approximately 9:30 a.m. At a brief pretrial conference, the trial court learned that Hung and Chu would not attend trial. The trial court set jury selection for 1:30 p.m. Neither Mr. Lupo, Mr. Chu, nor Ms. Hung were present in the courtroom at 1:30 p.m. Counsel for Bullock reurged his motion to dismiss the case and this time the trial court granted the motion. Two days later, Hung filed a verified motion to reinstate accompanied by Lupo’s affidavit stating he had been detained in traffic and arrived at the court at 1:34 p.m. on March 7, 2005. The trial court denied Hung’s motion to reinstate. Hung now appeals the trial court’s order to dismiss the case for want of prosecution.

The trial court’s authority to dismiss a case for want of prosecution derives from two sources: Rule 165a of the Texas Rules of Civil Procedure and the court’s inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex.1999). A trial court may dismiss under Rule 165a on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice.... ” Tex.R. Civ. P. 165a; Villarreal, 994 S.W.2d at 630. The trial court possesses the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute his or her case with due diligence. Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex.1976). A plaintiff must prosecute the case to a standard of “reasonable diligence” and in resolving the issue of reasonable diligence, the court may consider the entire trial history with no single factor being dispositive. See State v. Rotello, 671 S.W.2d 507, 509 (Tex.1984). The trial court’s decision to dismiss a case for want of prosecution may only be reversed upon a showing of abuse of discretion. See Williams, 543 S.W.2d at 90. An abuse of discretion occurs when a trial court acts arbitrarily or unreasonably without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).

The trial court in its dismissal order provided “... Plaintiff failed to appear for jury selection and styled cause should be dismissed for want of prosecution.” In response to a request for findings of fact and conclusions of law, the trial court issued a memorandum listing a series of events related to its dismissal order including: the motion for continuance submitted three days prior to the first trial date, the affidavit stating Mr. Chu was necessary for the trial, the granting of the continuance, the failure of appellant to announce ready on the morning of March 7th, the appearance of Mr. Lupo instead of Mr. Chu and Ms. Hung, Mr. Lupo’s failure to appear for jury selection, and Mr. Lupo’s failure to provide an explanation for the absence of his client and Mr. Chu on March 7, 2005.

Appellant urges the trial court abused its discretion in dismissing the case as Mr. Lupo had been delayed in traffic and consequently his failure to appear at jury selection was “not intentional or the result of conscious indifference but was due to an accident or mistake” and consequently the trial court “shall reinstate the case.” See Tex.R. Civ. PROC. 165(a)(3).

Based on the facts before the trial court, we are unable to say the trial court abused its discretion in to dismiss this three-year-old case for want of prosecution. We affirm the trial court’s order.


author:
JOHN S. ANDERSON, Justice. LESLIE BROCK YATES, Justice,
      LESLIE BROCK YATES, Justice, supplemental opinion on motion for rehearing.

text:
    In the Interest of K.M.H.
    No. 14-04-00458-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 14, 2005.
    Supplemental Opinion on Rehearing Dec. 8, 2005.

      Mary Peter Cudd, Angleton, Melissa Kite, Surside, for appellant.
    Jeffrey Douglas Kyle, Pearland, for ap-pellee.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   MAJORITY OPINION

JOHN S. ANDERSON, Justice.

Earl Leroy Hoback appeals from a judgment terminating his parental rights to his daughter, K.M.H. On appeal, Hoback complains (1) the trial court erred in denying his request for a jury trial, (2) the trial court erred in denying counsel’s request to withdraw from representation, and (3) trial counsel was ineffective. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Earl Hoback is the father, and Melissa Kite is the mother, of K.M.H., born April 8, 2003. Four days after her birth, K.M.H. was placed in protective custody. On April 14, 2003, the Brazoria County Children’s Protective Services Unit, Texas Department of Protective and Regulatory Services (“CPS”), filed a suit affecting the parent-child relationship in which CPS sought temporary conservatorship of the child and termination of the parent-child relationship between K.M.H. and both parents. After a bench trial, the trial court terminated both parents’ parental rights. Hoback files this appeal from the trial court’s judgment terminating his parental rights. The trial court filed findings of fact and conclusions of law; on appeal, Hoback does not challenge the findings of fact and conclusions of law.

The trial court’s findings and conclusions are excerpted below, in pertinent part:

Findings of Fact
1. The child who is the subject of this suit is [K.M.H.]
2. The mother of the child is [Kite] and the father of the child is [Ho-back].
3. [CPS] was named temporary managing conservator of the child on [the] 14[th of] April 2003.
4. [Kite] did not appear for trial and wholly made default.
5. [Hoback] did not appear for trial and wholly made default.
6. All counsel announced ready for . trial.
7. [Kite]- consumed alcohol and smoked marijuana regularly during her pregnancy with [K.M.H.]
8. On 04-12-03, [Kite] smoked marijuana and drank alcohol to the point of intoxication.
9. On' 04-12-03, [Kite] breast fed [K.M.H.] following her own usage of alcohol and marijuana.
10. On 04-12-03, [Kite] allowed [K.M.H.] to ride in a vehicle operated by [Hoback] who was operating the vehicle while he was intoxicated.
11. [Kite] used “crank” and cocaine during her pregnancy with [K.M.H.]
12. [Kite] knew that her use of alcohol, marijuana, “crank,” and cocaine during her pregnancy with [K.M.H.] endangered [K.M.H.]
13. [Hoback] was aware of [Kite’s] use - of alcohol, marijuana, and controlled substances during her pregnancy with [K.M.H.] and he used alcohol and drugs with her during the period of her pregnancy.
14. [Hoback] knew that [Kite’s] abuse of drugs and use of alcohol during her pregnancy with [K.M.H.] endangered the child.
15. On 04-12-03, [Hoback] operated a motor vehicle while he was intoxicated while [K.M.H.] was a passenger in the vehicle.
17. [Hoback] pleaded guilty to the offense of endangering a child by operating a motor vehicle while he was intoxicated on 04-12-03 endangering [K.M.H.]
19. The temporary orders entered in this cause on 04-22-03 specifically established the following actions [Kite] and [Hoback] needed to accomplish to obtain the return of the child: submit to a psychological assessment and follow all recommendations of the psychologist; successfully complete counseling; submit to a complete drug and alcohol abuse assessment and to follow all I'eeommendations made by facility staff for further assessment or treatment; remain drug and alcohol free during the pendency of the suit; obtain and maintain a safe and stable home; and, comply with the service plans.
22. [Hoback] failed to comply with and complete the foregoing actions necessary for him to obtain return of the child.
23. [Hoback] tested positive for marijuana on 04-23-03, 05-15-03, 06-18-03, 06-26-03, and 08-25-03.
24. [Hoback] did not exercise any visitation with [K.M.H.] from 08-29-03 through 03-15-04.
26. [Hoback] did not obtain or maintain a safe and stable home during the pendency of the case.
27. CPS provided and made the court-ordered services available to [Ho-back] and [Kite].
28. CPS[’s] plans for the child are to pursue adoption of the child by the foster family with which she has been placed since she was placed into protective custody.
29. [K.M.H.]’s needs are being met in her current placement and she is provided with a safe and stable home.
Conclusions of Law
6. CPS has had temporary managing conservatorship of [K.M.H.] in excess of nine months.
9. [Hoback] engaged in conduct that endangered the physical or emotional well-being of [K.M.H.]
10. [Hoback] knowingly placed [K.M.H.] with a person who engaged in conduct that endangered the physical or emotional well-being of [K.M.H.]
11. [Hoback] failed to comply with the provisions of the temporary orders in this cause which specifically established the actions he needed to take to obtain return of [K.M.H.]
12. [Hoback] failed to regularly visit or maintain significant contact with [K.M.H.]
13. CPS made reasonable efforts to return [K.M.H.] to Hoback.
14. [Hoback] has demonstrated an inability to provide the child with a safe environment.
15. Termination of the parent-child relationship between [Hoback] and [K.M.H.] would be in the best interests of the child.
16. It would be in the best interests of [K.M.H.] for CPS to be named the managing conservator of the child.

DISCUSSION

I. Denial of Request for Jury Trial and Denial of Motion to Withdraw

In his first and second points of error, Hoback argues the trial court erred in denying his request for a jury trial and in denying trial counsel’s motion to withdraw. At oral argument before this court, Ho-back orally waived these two points on appeal. Thus, we do not address the arguments made under these two points.

II. Ineffective Assistance of Counsel

In his third point of error, Hoback argues trial counsel failed to provide him competent representation both during and after the termination proceedings, in violation of his right to due process of law. Specifically, Hoback complains counsel was ineffective in (1) failing to preserve legal and factual sufficiency points of error, (2) failing to timely request a trial by jury, (3) failing to make any requests for discovery, (4) failing to ensure a complete record was made during significant pretrial motions, (5) failing to timely withdraw from dual representation, and (6) failing to ensure Hoback was present for trial.

A. Standard of Review

The statutory right to counsel in parental-rights termination cases embodies the right to effective counsel. See In re M.S., 115 S.W.3d 534, 544 (Tex.2003). The Texas Supreme Court has adopted the test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as the standard for ineffective assistance in civil parental-termination proceedings. In Strickland, the United States Supreme Court stated:

First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

466 U.S. at 687, 104 S.Ct. 2052. A defendant must successfully show both prongs of the Strickland inquiry to establish an ineffective assistance claim. See In re M.S., 115 S.W.3d at 545.

“With respect to whether counsel’s performance in a particular case is deficient, we must take into account all of the circumstances surrounding, the case, and must primarily focus on whether counsel performed in a ‘reasonably effective’ manner.” In re M.S., 115 S.W.3d at 545 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). “Counsel’s performance falls below acceptable levels of performance when the ‘representation is so grossly deficient as to render proceedings fundamentally unfair....’” Id. (quoting Brewer v. State, 649 S.W.2d 628, 630 (Tex.Crim.App.1983)). “In this process, we must give great deference to counsel’s performance, indulging ‘a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,’ including the possibility that counsel’s actions are strategic.” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052; Garcia v. State, 57 S.W.3d 436, 440-41 (Tex.Crim.App.2001); Gamble v. State, 916 S.W.2d 92, 93 (Tex.App.-Houston [1st Dist.] 1996, no pet.)). “It is only when ‘the conduct was so outrageous that no competent attorney would have engaged in it,’ that the challenged conduct will constitute ineffective assistance.” Id. (quoting Garcia, 57 S.W.3d at 440; Thompson v. State, 9 S.W.3d 808, 812-13 (Tex.Crim.App.1999)). Scrutiny of counsel’s performance is highly deferential, and there is a strong presumption that counsel’s actions could have been the result of sound trial strategy. Strickland, 466 U.S. at 688, 104 S.Ct. 2052; Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App.1986). Without testimony from trial counsel, we must presume counsel had a plausible reason for her conduct. Gibbs v. State, 7 S.W.3d 175, 179 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd).

With respect to the requirement under Strickland that an appellant must show counsel’s deficient performance prejudiced his defense, as explained in Mitchell v. Stale, “[t]his means that the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different.” 68 S.W.3d 640, 642 (Tex.Crim.App.2002). A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. Id. at 642.

Keeping the Strickland guidelines in mind, we review Hoback’s ineffective assistance complaints.

B. Preservation of Legal and Factual Sufficiency Points of Error

Hoback complains counsel was ineffective because she failed to preserve legal and factual sufficiency points of error by neglecting to file the appropriate motions during and after trial.

Hoback’s assertion conflicts with the record. The record shows Hoback’s counsel timely filed a motion for new trial on his behalf challenging both the legal and factual sufficiency of the evidence. Moreover, in non-jury trials, it is not necessary to preserve in the trial court a complaint about the legal and/or factual sufficiency of the evidence because such a complaint may be raised for the first time on appeal. See TEX. R. APP. P. 33.1(d). Thus, Hoback was not barred from challenging the legal and factual sufficiency of the evidence in this appeal, and counsel was not ineffective in this regard.

C. Request for Jury Trial

Hoback next argues he was denied effective assistance of counsel because neither his first or second appointed trial counsel, who represented both Hoback and Kite, requested a jury trial on his behalf. Hoback contends it is fair to assume most people in his situation would assume that the right to trial by jury is fundamental and automatic.

The Family Code provides for trial by jury upon request. See TEX. FAM. CODE ANN. § 105.002 (Vernon Supp. 2005). Unlike in criminal cases, the Family Code does not require an express waiver of trial by jury. See TEX. CODE CRIM. PROC.'ANN. art. 1.13 (Vernon 2005). Under Texas Rule of Civil Procedure 216, to make a proper request for a jury trial, a party must make a written request for a jury trial and pay the jury fee at least thirty days before the date trial is set. See TEX. R. CIV. P. 216 (“No jury trial shall be had in any civil suit, unless a written request for a jury trial is filed with the clerk of the court a reason* able time before the date set for trial of the cause on the non jury docket, but not less than thirty days in advance.”); In re V.R.W., 41 S.W.3d 183, 194 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (“In civil cases, the right of a jury trial is not automatic, but, rather, arises only where a party has demanded it and paid the applicable jury fee.”). When a party has perfected its right to a jury trial in accordance with Rule 216 but the trial court proceeds to trial without a jury, the party must, to preserve error, either object on the record to the trial court’s action or indicate afftr-matively in the record it intends to stand on its perfected right to a jury trial. Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat’l Assur. Co., 875 S.W.2d 385, 387-88 (Tex.App.-Dallas 1993, no writ). A refusal to grant a trial by jury is harmless error where the record reflects that no material issues of fact exist and an instructed verdict would have been justified. Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex.1991).

The record shows Kite and Hoback’s first appointed trial counsel filed an original answer on their behalf on January 20, 2004, but she did not file a request for a jury trial. When Kite and Hoback’s first appointed counsel later withdrew from representation, the trial court appointed a second attorney to represent Kite and Ho-back. The reporter’s record shows that at a hearing on March 9, 2004, Kite and Hoback’s second appointed trial counsel renewed an earlier oral request for a jury trial which the trial court had denied at a prior hearing (there is no record of the prior hearing). In accordance with counsel’s previous oral request for a jury trial, counsel stated at the March 9 hearing she was submitting a written request for a jury trial. The only written request for a jury trial in the record was filed on February 27, 2003, on Kite’s behalf, and the request was untimely because it was filed less than thirty days before trial. See TEX. R. CIV. P. 216. Second appointed trial counsel did not make a request for a jury trial on Hoback’s behalf.

On the first day of trial, March 15, 2004, second appointed counsel for Hoback and Kite made an oral motion to sever the two trials between Kite and Hoback. The trial court denied the oral motion to sever. Counsel did not object to proceeding without a jury.

Hoback argues counsel’s failure to timely request a jury trial on his behalf constitutes ineffective assistance. Hoback relies on In re J.C., 108 S.W.3d 914, 916-17 (Tex.App.-Texarkana 2003, no pet.) as authority for his contention that counsel was ineffective by not requesting a jury trial on his behalf; however, In re J.C., also a parental-rights termination case, is distinguishable from the facts of this case. The record in In re J.C. showed the father informed his court-appointed counsel, who was appointed eleven days before trial, of his desire for a jury trial at the first available opportunity, two days before trial was set to begin. Id. at 916. The father’s counsel filed a written request for a jury trial, but the trial court denied the request because it was untimely. Id. The court of appeals held the trial court erred in denying the jury request even though it was untimely because counsel filed the request for jury trial on behalf of the father at his first opportunity. Id. at 917. Unlike In re J.C., the record in this case does not show Hoback informed counsel of his desire to have a jury trial, no request for a jury trial was made, and we may only speculate as to why counsel did not file a jury request on Hoback’s behalf. Furthermore, even if a request had been made on Hoback’s behalf, the record reflects no material issues of fact existed and an instructed verdict would have been justified. See id. (holding error in denial of request for jury trial harmful where father testified extensively at the final hearing and repeatedly denied that termination of his parental rights would be in the best interests of his children; father’s testimony was sufficient to defeat any motion for an instructed verdict).

We may not reverse for ineffective assistance “when counsel’s actions or omissions may have been based upon tactical decisions, but the record contains no specific explanation for counsel’s decisions.” Bone v. State, 77 S.W.3d 828, 830 (Tex.Crim.App.2002). The record here does not provide an explanation for trial counsel’s failure to file a jury request. Because there is no explanation in the record for counsel’s actions, which could have been tactical, there has been no showing defeating the presumption counsel provided effective assistance. Moreover, Hoback has not shown counsel’s failure to request a jury trial prejudiced his defense. Accordingly, the failure of counsel in this case to file a timely request for a jury trial does not constitute ineffective assistance of counsel.

D. Lack of Discovery

Hoback next argues ineffective assistance of counsel is shown by trial counsel not filing any motions for discovery or motions for disclosure in this case. Ho-back claims responses to the discovery may have disclosed whether a conflict of interest arose from trial counsel’s dual representation of both Hoback and Kite.

On appeal, Hoback does not cite any authority in support of this contention. Hoback also has not shown evidence of anything his trial counsel failed to discover, and he does not explain how formal discovery would have disclosed a conflict or how it might have benefitted him. Moreover, the record does not reveal whether informal discovery by counsel had been conducted, and there is no showing in the record that discovery directed to CPS would have factually changed any of the proof at trial.

Hoback’s complaint is not firmly founded in the record; we may only speculate why counsel did not conduct formal discovery and what such discovery may have revealed. Hoback has failed to show counsel’s performance was deficient in this regard and that the deficient performance prejudiced his defense.

E. Record of Pretrial Hearings

Hoback next complains counsel was ineffective in not having three pre-trial hearings transcribed. He asserts the record does not indicate an agreement by the parties that no record be made of three pretrial hearings held on January 20, 2004, February 10, 2004, and March 3, 2004. Hoback claims he was harmed by counsel’s failure to have a record made of the hearings on these dates because he now has no evidence of any mistakes trial counsel may have made; he argues that because he cannot show harm, he was harmed.

Texas Rule of Appellate Procedure 13.1(a) requires a court reporter to attend court sessions and make a full record of the proceedings, “unless excused by agreement of the parties.” TEX. R. APP. P. 13.1(a). Here, the record does not show the parties agreed to the absence of the court reporter, but the record also does not show either party objected to the court reporter’s absence. Thus,-the record does not show whether the parties may have agreed not to have a record made of the three pretrial hearings.

We may only consider the record presented to us, and we cannot speculate on what might or might not be in the missing portions of the record. See In re M.S., 115 S.W.3d at 546. In addition to the bench trial, two pretrial hearings, held on February 24, 2004 and March 9, 2004, were recorded and included in the appellate record. Additionally, the April 27, 2004 hearing on Kite’s and Hoback’s motions for new trial was recorded and is part of the record. With regard to the three hearings appellant specifically complains of lacking a record, the court’s docket sheet reflects a permanency hearing was held on January 20, 2004; there is no notation on the docket sheet regarding February 10, 2004; and a notation dated March 3, 2004 states “Moorhead’s [(Hoback’s and Kite’s second appointed counsel)] motions denied.”

Hoback argues that if a record had been made of the January 20, 2004 permanency hearing, the “errors that would have been recorded would have been the evidence that Kite and Hoback were separated and each of their plans which was evidence of a conflict in representation” and “evidence as to whether CPS was planning to move for permanent managing conservatorship instead of termination.” Hoback does not explain how the couple’s separation creates a conflict of interest, and his other arguments as to what would have been recorded if a record had been made are not firmly founded in the record. We may not speculate as to what may have occurred during the January 20, February 10, and March 3 pretrial hearings and why the hearings were not transcribed. See In re M.S., 115 S.W.3d at 546 (stating appellate court “may only consider the record presented to it, and ... cannot speculate on what might or might not be in the missing portions of the record.”).

Hoback has not shown counsel’s performance in not ensuring the three pretrial hearings were recorded was deficient and that the deficient performance prejudiced his defense. See In re M.S., 115 S.W.3d at 546. Thus, counsel’s failure in this case to ensure the entire proceedings were recorded does not constitute ineffective assistance of counsel.

F. Dual Representation

Hoback argues counsel was ineffective due to an alleged conflict in counsel’s dual representation of both Hoback and Kite. Hoback asserts the interests of Kite and Hoback diverged because the evidence at trial showed Kite had requested permanent managing conservatorship be granted to the foster family currently taking care of K.M.H. or that the child be placed with relatives. Hoback further asserts counsel’s ineffectiveness is shown by the following: (1) Hoback’s first trial counsel filed a counterpetition only on Kite’s behalf; (2) Hoback’s second trial counsel filed three pretrial motions, a motion to extend final order date, a motion for mediation, and a request for jury trial, only on Kite’s behalf; (3) second trial counsel stated during a March 9 hearing that she did not know she represented Hoback; and (4) second trial counsel failed to explain to the trial court why she needed to withdraw from representation of Hoback at the March 9 pretrial hearing and on March 15, the first day of trial.

On March 5, 2004, Hoback’s second trial counsel filed a motion to withdraw as counsel for Hoback, listing the following grounds for withdrawal: Kite and Hoback were no longer in a romantic relationship with each other, they no longer lived together, the frequency of their participation in the services provided by CPS was not the same, and they had differences in how this case should be resolved. In addition, the motion to withdraw alleged Hoback or Kite might blame the other for conduct related to the termination and might be willing or able to separate and remain separate from the other party.

Section 107.013(b) of the Texas Family Code provides that indigent parents who are defendants in the same termination lawsuit are entitled to non-conflicted counsel. TEX. FAM. CODE ANN. § 107.013(b) (Vernon Supp.2005). In deciding whether there is a conflict of interest between parents opposing termination in a single lawsuit, the trial court must determine whether there is a substantial risk that counsel’s obligations to one parent would materially and adversely affect his or her obligations to the other parent. In re B.L.D., 113 S.W.3d 340, 343 (Tex.2003). In evaluating whether there is a substantial risk of a conflict of interest before trial, the trial court should consider the available record to determine the likelihood that the parents’ positions will be adverse to each other. Id. at 347. For example, when reviewing a record of pretrial proceedings, the trial court may consider the allegations in the petition against each parent, evidence adduced during pretrial hearings, and the parents’ statements and positions taken in the course of pretrial proceedings. A trial court’s determination of whether there was a conflict of interest is reviewed for an abuse of discretion. Id.

Hoback argues ineffectiveness is shown by trial counsel’s failure to file pre-trial motions on his behalf and her failure to explain to the trial court why she needed to withdraw from representation of Ho-back at the March 9 pre-trial hearing and on March 15, the first day of trial.

A review of the pre-trial record in this case shows no substantial risk that trial counsel’s obligations to Kite would materially and adversely affect her representation of Hoback. The petition for termination alleged grounds of endangerment against both Hoback and Kite. The allegations permitted termination based not only on each parent’s own conduct endangering K.M.H., but upon each parent’s knowing exposure of K.M.H. to the other parent’s endangering conduct. See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon 2002). Consequently, evidence regarding Hoback’s conduct could tend to prove the grounds supporting Kite’s termination, and vice versa. See In re B.L.D., 118 S.W.3d at 347.

In her counterpetition, filed January 20, 2004, Kite alleged she and Hoback “are or will be separated” and the “appointment of the parents as joint managing conservators would not be in the best interest of the child.” Kite further alleged that it would be in the best interest of the child that she be appointed sole managing conservator of the child. On January 20,- counsel filed a joint original answer on behalf of both Hoback and Kite wherein both parents entered a general denial.

Hoback has not shown his and Kite’s interests conflicted to create a substantial risk that counsel could not effectively represent each of them in the same trial. Other than the general statement in trial counsel’s motion to withdraw that Hoback and Kite had differences in how this case should be resolved, there is no evidence in the record showing Hoback’s interests were adverse to Kite’s and no evidence of an actual conflict. Moreover, even if we were to assume counsel was deficient in these regards, Hoback has not shown counsel’s errors were so serious as to deprive him of a fair trial.

Therefore, based on the record before us, we conclude appointed counsel’s obligations to Kite did not materially and adversely effect counsel’s obligations to Ho-back, and counsel’s dual representation did not constitute ineffective assistance.

G. Hoback’s Presence at Trial

Lastly, Hoback complains trial counsel was ineffective in failing to make arrangements for him to be present at trial. On the date of trial, Hoback was in boot camp in San Antonio. Hoback argues trial counsel’s failure to request a bench warrant resulted in the trial court being unable to consider whether Hoback was entitled to be present at trial.

Hoback concedes an inmate does not have an absolute right to appear in person in every court proceeding. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex.2003) (stating “an inmate does not have an absolute right to appear in person in every court proceeding”). Instead, an inmate’s access to the courts is weighed against the protection of our correctional system’s integrity. Id. at 166 (holding trial court did not abuse its discretion in overruling pro se inmate’s request for a bench warrant because the inmate failed to provide any factual information showing why his interest in appearing outweighed the impact on the correctional system). Court’s consider a variety of factors when deciding whether to grant an inmate’s request for a bench warrant, including: the cost and inconvenience of transporting the inmate to court; the security risk the inmate presents to the court and public; whether the inmate’s claims are substantial; whether the matter’s resolution can reasonably be delayed until the inmate’s release; whether the inmate can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; whether the inmate’s presence is important in judging his demeanor and credibility; whether the trial is to the court or a jury; and the inmate’s probability of success on the merits. Id. at 165-66. The key factor is whether the inmate is represented by counsel. Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex.App.-Texarkana 1994, writ denied).

Here, Hoback was represented by counsel, and he has not shown he was denied an opportunity to communicate with counsel. Hoback also has not shown the substance of any testimony he would have given, or how such testimony would have affected the trial court’s decision. See Armstrong, 881 S.W.2d at 58; see also Melancon v. State, 66 S.W.3d 375, 379 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd) (stating that without a record reflecting what facts, if any, witness could have actually provided, prejudice from counsel’s failure to subpoena the witness was not shown by trial counsel’s global and unsubstantiated characterizations that the witness, to an extent, corroborated other testimony, or that the witness’ testimony would have helped the defense).

There is no explanation in the record for counsel’s actions in not requesting a bench warrant, which could have been tactical. Thus, there has been no showing defeating the presumption counsel provided effective assistance. Additionally, Hoback has not shown counsel’s failure to request a bench warrant prejudiced his defense. We conclude counsel’s failure to request a bench warrant did not constitute ineffective assistance.

We overrule point of error three.

CONCLUSION

We have carefully studied Hoback’s brief and the record and it has not been demonstrated to us that, but for the alleged errors of trial counsel, the result of the proceeding would have been different. CPS provided a solid case for the termination of Hoback’s parental rights.

Hoback has not shown that his trial counsel’s representation was deficient; that is, it fell below an objective standard of reasonableness based on prevailing professional norms. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Hoback also has not shown that counsel’s alleged deficient performance prejudiced his defense. Id.

The judgment of the trial court is affirmed.

YATES, J., concurs and files a concurring opinion in which HUDSON, J. joins.

LESLIE BROCK YATES, Justice,

concurring.

I agree with the majority’s conclusion that Hoback failed to prove ineffective assistance of counsel in this case. However, I write separately to express my disagreement with the majority’s analysis in reaching that conclusion.

Request for Jury Trial

The majority simply states that Hoback’s second appointed trial counsel did not request a jury on his behalf. I do not think it is clear that no such request was made. The record shows that on February 10, 2004, the trial court signed an order appointing new counsel for both Ho-back and Kite. Apparently, new counsel was confused, thinking she represented only Kite, and filed a written jury request on her behalf only on February 27, 2004. At a pretrial hearing on March 9, 2004, counsel renewed her “earlier” request for a jury trial. The court clarified that counsel in fact represented both parents and then denied all her various motions, including the jury request, and the termination hearing was held on March 15, 2004. Given that the trial court denied counsel’s oral motions after clarifying that she represented both parties, the record could be interpreted that the trial court considered counsel’s request as applying to both parties.

“The right to jury trial is one of our most precious rights, holding ‘a sacred place in English and American history.’ ” Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex.1997) (orig.proceeding) (quoting White v. White, 108 Tex. 570, 196 S.W. 508, 512 (1917)). Restrictions placed on that right will be subjected to the utmost scrutiny. In re J.C., 108 S.W.3d 914, 917 (Tex.App.Texarkana 2003, no pet.). Given the ambiguous circumstances and the importance of the right to a jury trial, I would find that counsel did in fact request a jury for Hoback, albeit untimely.

Though whether to try a case to a judge or jury is a strategic choice, once the decision is made to request a jury, it should be done timely. Making an untimely jury demand is not a reasonable strategic choice. Cf. Batiste v. State, 834 S.W.2d 460, 466 (Tex.App.-Houston [14th Dist.] 1992) (finding trial counsel’s performance deficient because he did not raise his Batson challenge timely), aff'd, 888 S.W.2d 9 (Tex.Crim.App.1994). Thus, I would conclude that, because her jury request was untimely, her performance was deficient under the first prong of Strickland. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); In re M.S., 115 S.W.3d 534, 545 (Tex.2003).

Having found deficient performance, I would next analyze whether Hoback was harmed by the deficiency. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; In re M.S., 115 S.W.3d at 545; see also Johnson v. State, 169 S.W.3d 223, 230 (Tex.Crim.App.2005) (holding that Strickland harm analysis applies to all misconduct claims flowing from conduct of defense counsel unless claims involve a complete denial of counsel, a conflict of interest, or a structural defect). The majority states that Hoback was not harmed because “the record reflects no material issues of fact existed and an instructed verdict would have been justified.” While that is the harm standard for denial of a jury trial in a typical civil case, see Halsell v. Dehoyos, 810 S.W.2d 371, 372 (Tex.1991), I disagree that we should apply that standard to a claim alleging ineffective assistance of counsel based on an untimely jury request in a case involving the termination of parental rights. The parent-child relationship is one of constitutional dimension, and a termination decree is complete, final, and irrevocable. In re V.R.W., 41 S.W.3d 183, 189-90 (Tex.App.Houston [14th Dist.] 2001, no pet.). Parental rights termination cases involve inherent discretion by the fact finder to decide, even if all acts alleged in support of the termination are true, whether termination is in the best interest of the child at that point in time. Rather, I would apply the typical ineffective assistance of counsel standard and find harm if the deficient performance undermined confidence in the outcome of the proceeding. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also In re B.W., No. 14-03-00068-CV, 2004 WL 2749138, at *5 (Tex.App.-Houston [14th Dist.] Dec. 2, 2004, pet. denied) (mem.op.) (applying Strickland harm standard to ineffective assistance of counsel claim based on failure to request a jury in a parental termination case).

Even under this standard, I would conclude that Hoback has not shown harm. He does not explain how he was prejudiced by the failure to request a jury, stating only that “Hoback should not have been terminated without the benefit of a jury trial.” That is insufficient to undermine confidence in the outcome of the proceeding. Thus, I agree with the majority’s ultimate conclusion that Hoback has not shown ineffective assistance of counsel based on counsel’s untimely request for a jury trial.

Presence at Trial

The majority analyzes an inmate’s right to appear at a termination hearing under the typical standard for granting or denying a request for a bench warrant. I believe this standard does not adequately protect the rights of the parent and thus does not apply in the termination context. Termination is a serious proceeding, and a parent’s presence, or lack thereof, can be quite significant, especially for an incarcerated parent. As the Texar-kana Court of Appeals has explained,

The absence of a parent at the trial to terminate his or her parental rights is prejudicial to the parent. The parent’s absence could leave the fact-finder with the impression that the proceeding is not important to the parent. Furthermore, because of the obvious negative connotations associated with a parent who is incarcerated, it is important for the fact-finder to witness the demeanor and credibility of the parent. In short, the presence, or nonpresence, of the parent in the courtroom at his or her termination hearing is vital to the fact-finder’s decision to terminate a parent’s rights to his or her child.

In re J.D.S., 111 S.W.3d 324, 327 (Tex.App.-Texarkana 2003, no pet.). Thus, I believe that, absent extraordinary circumstances, any request on behalf of an incarcerated parent to be present at a termination hearing should be granted.

Despite the importance of a parent’s presence at a termination hearing, a strategic choice not to appear is possible. In the motion for new trial hearing, Hoback’s counsel seemed to imply that her failure to secure Hoback’s presence was an oversight or mistake. However, CPS pointed out that the record actually was silent on whether this was a tactical decision, and Hoback’s counsel did not put on any evidence to the contrary or respond to that argument in any way, though having the opportunity to do so. At best, the record conflicts regarding whether the failure to request a bench warrant was strategy or mistake, and in reviewing allegations of ineffective assistance of counsel, we presume competent performance. In re M.S., 115 S.W.3d at 545. Because the record here is insufficient to overcome the presumption of competence, I agree that Ho-back cannot show ineffective assistance of counsel based on the failure to secure his presence at the termination hearing.

LESLIE BROCK YATES, Justice, supplemental opinion on motion for rehearing.

In our original opinion, we concluded that Hoback’s counsel had waived Hobaek’s first two issues at oral argument. Hoback’s counsel then filed a motion for rehearing, stating that she did not intentionally waive these issues and intended only to waive oral argument and have the court rely on her brief. Rule 47.1 of the Texas Rules of Appellate Procedure provides that we “must ... address[ ] every issue raised and necessary to the final disposition of the appeal.” Tex.R.App. P. 47.1 (emphasis added). If it is unclear whether a party has waived an issue at oral argument, we should address it. See CSR Ltd. v. Link, 925 S.W.2d 591, 595 n. 1 (Tex.1996) (“The plaintiffs claim that CSR waived the right to contest personal jurisdiction in Texas because of admissions CSR allegedly made before the West Virginia Supreme Court during unrecorded oral argument. CSR disputes that contention. Because there is a dispute about what was said, we do not find a judicial admission that knowingly waives a constitutional right under these circumstances.” (citation omitted)); Mosley v. State, 931 S.W.2d 670, 675 n. 2 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd) (addressing a contention because “it was unclear whether the state was waiving the contention entirely or if it was simply not going to orally argue the contention”). Given that the argument was unrecorded, the two issues were fully briefed, and counsel disputes any intent to waive, we have granted rehearing to consider Hoback’s other two issues.

In his first issue, Hoback contends the trial court erred in denying his request for a jury trial. In reviewing Hoback’s claim that his counsel was ineffective in failing to make a timely jury demand, the majority and concurrence disagreed as to whether Hoback’s counsel actually requested a jury trial. However, even if there was a proper jury request, Hoback waived any error because he failed to object when the trial court proceeded with a bench trial. See In re D.R., 177 S.W.3d 574, 580 (Tex.App.-Houston [1st Dist.] 2005, pet. filed) (“[A] perfected right to a jury trial in a civil case may be waived by a party’s failure to act when the trial court proceeds with a bench trial.”); Trimble v. Tex. Dep’t of Protective & Regulatory Servs., 981 S.W.2d 211, 220 (Tex.App.-Houston [14th Dist.] 1998, no pet.) (finding that failure to object waived complaint of no jury trial, even when properly requested and paid). We therefore overrule Ho-back’s first issue.

In his second issue, Hoback complains the trial court erred in denying counsel’s request to withdraw from representation of one of the parties based on a conflict of interest. In determining whether a conflict of interest exists between parents in a termination suit, the trial court must decide “whether there is a substantial risk that the appointed counsel’s obligations to one parent would materially and adversely affect his or her obligations to the other parent.” In re B.L.D., 113 S.W.3d 340, 343 (Tex.2003). We review a trial court’s determination of whether there was a conflict of interest for an abuse of discretion. Id. at 347. In reviewing Hoback’s ineffective assistance of counsel claim based on this alleged conflict of interest, we determined that the record in this ease shows no substantial risk that counsel’s obligations to Kite would materially and adversely affect her representation of Hoback. Accordingly, we find the trial court did not abuse its discretion in denying counsel’s request to withdraw. Hoback’s second issue is overruled.

Having overruled the remainder of Ho-baek’s issues, the judgment of the trial court is affirmed.

ANDERSON, J. would deny motion for rehearing.

      . In a supplemental brief filed after submission and oral argument, Hoback further argues counsel was ineffective in failing to move for a continuance on the grounds of lack of forty-five days notice for trial. Hoback contends he did not receive forty-five days notice of the March 15, 2004 trial setting pursuant to Texas Rule of Civil Procedure 245. See Tex. R. Civ. P. 245 (providing the trial court "may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties."). The record shows that on September 30, 2003, the trial court signed an "initial permanency hearing” order notifying the parties the case was set for trial on March 16, 2004. The trial court later signed a "subsequent permanency hearing order” on January 20, 2004, again notifying the parties the case was set for trial on March 16, 2004. However, the trial actually took place a day earlier, on March 15, 2004. It is unclear from the record when the date for trial was changed from March 16 to March 15. A motion for withdrawal of counsel filed by Hoback’s attorney on March 5, 2004 references a March 15 trial setting. In addition, at the conclusion of a March 9, 2004 pretrial hearing, the trial court announced the bench trial would proceed March 15, 2004. The record does not show any party objected to the March 15, 2004 trial setting.
      Where the record is silent regarding counsel’s strategy or tactics, we will not speculate as to the basis for counsel’s decision. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Without evidence of the strategy and methods involved concerning counsel’s actions at trial, the court will presume sound trial strategy. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). Ho-back has not made the required showing of either deficient .performance or sufficient prejudice with regard to this ineffectiveness claim. See id.

      . Second appointed trial counsel untimely filed a jury trial request on Kite’s behalf, not his. .The trial court denied Kite's request for a jury trial due to the untimeliness of the request, as it was made less than thirty days before trial.

      . The record shows that on March 5, counsel filed a motion to withdraw as counsel for Hoback; thus, her statement at the March 9, 2003 hearing that she was unaware she represented Hoback conflicts with the fact she filed a motion to withdraw from representation of Hoback four days earlier.

      . On February 10, 2004, the trial court permitted Hoback and Kite’s first appointed trial counsel, M. Lesa Trombley, to withdraw as counsel of record, and Mirenda Moorhead was appointed counsel of record for Hoback and Kite.

      . Hoback argues in a supplemental brief filed after both submission of the case and oral argument that counsel was ineffective in not having him testify at the hearing on his motion for new trial. Hoback’s counsel argued at the motion for new trial hearing that appellant "is available for a hearing,” but she did not state he was present in the courtroom and there is no record of what Hoback would have said. No evidence was introduced during the hearing. We may only speculate why counsel did not call him to testify at the hearing, whether he was present or not; her reasons may have been strategic. When the record is silent as to possible trial strategies undertaken by defense counsel, we will not speculate on the reasons for those strategies. See Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App.1994). Here, the record is not sufficiently developed to overcome the strong presumption that counsel provided reasonable assistance.

      . The Court of Criminal Appeals has held that structural defects are only those so labeled by the United States Supreme Court, which does not include the errors at issue in this case. See Johnson, 169 S.W.3d at 235; Gray v. State, 159 S.W.3d 95, 96-97 (Tex.Crim.App.2005).

      . The case the majority relies upon, In re Z.L.T., 124 S.W.3d 163 (Tex.2003), involves a petition to establish paternity rather than the termination of parental rights.


author: WANDA McKEE FOWLER, Justice.

text:
    HARRIS COUNTY, Texas, Appellant, v. Frank L. VERNAGALLO, Appellee.
    No. 14-03-00619-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 28, 2005.
    Rehearing Overruled Dec. 1, 2005.

      Lisa Rice Hulsey, Nick Turner, Houston, for appellant.
    Anthony Paul Griffin, Galveston, for ap-pellee.

      Panel consists of Chief Justice HEDGES and Justices FOWLER and FROST.
   OPINION

WANDA McKEE FOWLER, Justice.

Harris County appeals the trial court’s judgment awarding Frank Vernagallo lost wages and attorney’s fees under the Texas Whistleblower Act. In three issues, the County asserts that 1) the evidence is legally and factually insufficient to support the jury’s finding that Vernagallo was terminated because he reported alleged illegal conduct; 2) the evidence is legally and factually insufficient to support the jury’s finding that Vernagallo made a “good faith” report of alleged illegal conduct on January 15, 1998; and 3) the jury’s finding — that the County would not have terminated Vernagallo based solely on information, observation, and evidence unrelated to his report — is against the great weight and preponderance of the evidence. We sustain the County’s legal sufficiency challenge to the evidence supporting causation, reverse, and render judgment that Vernagallo take nothing.

I. Factual Background

A.Summary of Vernagallo’s Employment with the County.

Vernagallo began working for the County in 1987 as a reserve deputy before becoming a full-time deputy in 1988. During his service with the County, Vernagallo received commendations and awards from his supervisors and co-workers for performing his job well; these are described in more detail below. However, Vernagal-lo’s employment with the County was punctuated by numerous complaints about his temper and treatment of fellow officers and citizens, also described more fully below. As a result, on January 8, 1998, the County informed Vernagallo that he would be required to participate in the Employee Assistance Program. Vernagallo also reported alleged illegal conduct on numerous occasions while he was employed with the County. Constable Freeman terminated Vernagallo’s employment by letter on the 8th of April, 1998.

B. Vernagallo’s Awards.

Vernagallo received many awards and commendations during his first few years of employment with the County. In August of 1988, Vernagallo was commended for his professional manner and teamwork, which resulted in an arrest for delivery of a controlled substance. In July of 1989, Vernagallo was congratulated for his part in an operation that resulted in four arrests in a neighborhood that drug dealers were known to frequent. One year later, Vernagallo was again commended for his involvement and professionalism in a felony arrest that resulted in the seizure of 2.5 kilograms of cocaine. In 1991, a private association that contracted for area law enforcement patrols wrote to the department to express their appreciation for Ver-nagallo’s loyalty and dedication to their community. Vernagallo’s awards culminated in a 1994 nomination for the “One Hundred Club Award” for his excellent handling of a bank robbery situation.

C. Complaints About Vernagallo.

Despite these awards and commendations, Vernagallo’s employment with the County was not entirely positive. The complaints about Vernagallo from citizens and fellow officers began in 1990, when a citizen filed a sworn Internal Affairs complaint, alleging that Vernagallo pulled him over while he was driving, cursed at him, and threatened to place him in jail. In 1995, a fellow officer reported that Verna-gallo had yelled and cursed at him; numerous other officers witnessed the exchange.

The following year, Vernagallo received his first reprimand about improper handling of evidence: Deputy Phillips advised Vernagallo that he was not allowed to store drug evidence in the desk drawer of court personnel. That same year, Verna-gallo’s neighbor, Delia Coy, alleged that Vernagallo had been harassing her family, arresting them for minor offenses, and threatening to place them in jail for the past two years. Chief Biehunko counseled Vernagallo about the first complaint by his neighbors. In 1996, Daniel McCool, a deputy sheriff, sent a certified letter complaining that Vernagallo had cursed, threatened, and pushed him at a union meeting. Internal Affairs reviewed these allegations but did not formally investigate because McCool did not provide a sworn account.

The number of complaints about Verna-gallo’s behavior and treatment of fellow officers and citizens increased dramatically in 1997; at lest six incidents occurred that year. In January, one citizen alleged that Vernagallo had yelled and cursed at him at a gun show. Because the citizen did not provide a sworn affidavit, there was no further follow-up. Another citizen filed an informal Internal Affairs complaint alleging that Vernagallo yelled at, cursed, and threatened her when she questioned Ver-nagallo’s arrest of her son-in-law. Sergeant McFadden counseled Vernagallo about this incident. Vernagallo’s neighbors filed another complaint, this time a formal one, about his continued harassment of them. This complaint was not sustained because the Coys’ allegations could not be “established conclusively,” although Sergeant McFadden noted that he found the circumstances “suspicious.”

During the investigation of the second Coy complaint, Sargeant McFadden discovered that Vernagallo, again, was handling and storing evidence improperly. Vernagallo continued to store evidence in a court clerk’s desk and had destroyed evidence by flushing it down a toilet. Verna-gallo was disciplined for improper handling of narcotics evidence and for failing to obey the previous order relating to his improper storage of evidence.

Two other incidents occurred in November of 1997. Jennifer Lemke, a citizen who operated a towing service, filed an informal complaint alleging that Vernagal-lo had cursed at her drivers and threatened to arrest them if they did not leave the scene of an accident. Chief Biehunko counseled Vernagallo about this incident. Thomas Johnson, another police officer, filed a sworn, formal complaint just days later. Johnson reported that Vernagallo had pulled him over in his car. Then, Vernagallo yelled at him, cursed him, and threatened him before finally pointing a gun at him. After a formal investigation, the complaint was classified as not sustained because Johnson’s allegations could neither be proven nor disproven.

Three other incidents merit discussion as well. These hostile confrontations involved Vernagallo and other law enforcement officers. In the first, Vernagallo yelled at, cursed, and threatened a fellow law enforcement officer at a political party convention. In the second, Vernagallo’s supervisor, Corporal Clausen, was called to the scene when Vernagallo had a hostile confrontation with a Houston police officer who had stopped Vernagallo while he was driving. In the last incident, Vernagallo pulled over Houston police officer Frank Stumpo. Officer Stumpo stated that Ver-nagallo yelled at him and cursed him. He also stated he thought Vernagallo would kill him. On each of these last two incidents, Vernagallo’s supervisor, Corporal Clausen, counseled Vernagallo at the scene.

D. Referral to the Employee Assistance Program at the January 8, 1998 Meeting.

Because of all of these incidents, on January 8, 1998, the County placed Verna-gallo on probation and required him to participate in an Employee Assistance Program (“EAP”) for anger management. Vernagallo’s immediate supervisor, Corporal Clausen, and Chief Biehunko were at this meeting. Constable Freeman was not present, although he authored the letter referring Vernagallo to EAP. In this letter, Constable Freeman told Vernagallo that the “number of complaints ... and the nature of the complaints” were of great concern to him. Constable Freeman also warned Vernagallo that he would be “subject to disciplinary action” that could range from “suspension to termination” if his unacceptable behavior continued. When Biehunko informed Vernagallo that he would have to participate in EAP, Biehun-ko also asked Vernagallo if he had written an anonymous letter that was sent to Mothers Against Drunk Drivers (the “anonymous letter”), and later forwarded to the District Attorney’s office. The letter described the actions of other officers who did not arrest a man who may have been driving while under the influence of alcohol. Vernagallo denied authorship during the meeting but later claimed he had written the letter.

E. Report of Alleged Illegal Conduct at the January 15, 1998 Meeting.

Days after his referral to EAP, Verna-gallo met with the Harris County District Attorney’s office to report alleged illegal conduct. This was not Vernagallo’s first report of alleged illegal conduct, but it is the report at issue in this appeal. Present at the meeting were Vernagallo, Justice of the Peace George Risner, Assistant District Attorney Chuck Noll and First Assistant to the District Attorney Don Strick-lin. Vernagallo reported three incidents of alleged illegal conduct. First, Vernagal-lo reported that a private citizen made $100 cash gifts to some of the officers, including Vernagallo, in December of 1997. Vernagallo also reported that some officers wrongfully had removed property from South Bend, an abandoned subdivision. Finally, Vernagallo told those present at the meeting that he had authored the anonymous letter about the alleged drunk driver.

Assistant District Attorney Chuck Noll contacted Sergeant McFadden, who is responsible for investigating internal affairs, to investigate the allegations in the anonymous letter about a drunk driver. Sergeant McFadden conducted an investigation and reported his conclusion by interoffice memo to Constable Freeman. In the inter-office memo, Sergeant McFadden did not identify Vernagallo as the writer of the anonymous letter, nor as the person who alerted the District Attorney’s office to the incidents described in the letter. Constable Freeman, who later fired Verna-gallo, denied knowing then that it was Vernagallo who made the January 15th report.

F. Vernagallo’s Termination.

The final complaint about Vernagallo occurred just three months later. This time, a fellow officer and a citizen both filed formal Internal Affairs complaints about Vernagallo’s behavior. Deputy Coyle witnessed Vernagallo yelling and cursing at two citizens Vernagallo had pulled over in their car. Vernagallo assaulted citizen Compuzano, and threatened citizen Laredo with jail, suggesting that Child Protective Services then would take away her child. Finally, Vernagallo ordered Compuzano to throw what appeared to be marijuana into the gutter.

Following the Internal Affairs investigation, Freeman sent the letter terminating Vernagallo’s employment. The letter recited that Vernagallo was being fired for his use of threatening or insulting language toward citizens Laredo and Compu-zano, in violation of the Departmental Policy and Ethics Manual (section 12.21). In addition, the letter recited that Vernagallo was being terminated for his improper handling and storage of the possible drug evidence found during the incident with citizens Laredo and Compuzano, in violation of the Departmental Policy and Ethics Manual (General Order # 11). Finally, the letter recited that Vernagallo’s behavior at the traffic stop of Laredo and Com-puzano was “totally unacceptable.” Constable Freeman wrote:

You yelled at and cursed at a female in the presence of her four year old child. You improperly disposed of a suspected controlled substance in the presence of two citizens as well as your trainee deputy, Scott Coyle. As his senior officer, you are supposed to set an example for the trainee, and instruct him in proper procedures. Instead, you acted inappropriately in his presence and you brought discredit to both yourself and this Department.
Once again you have allowed a minor disagreement to escalate into a major confrontation. You are unable to interact with the public and fellow employees when there is a difference of opinion without losing control of your anger.

This behavior violated section 13.2 of the Departmental Policy and Ethics Manual, which provides that, “No employee shall act or behave privately or in any official capacity in such a manner as to bring discredit upon himself or the department.”

Constable Freeman testified that he fired Vernagallo because of the incident involving citizens Laredo and Compuzano that Deputy Coyle witnessed. Chief Bie-hunko testified that any police officer would have been terminated for mistreating citizens and destroying drug evidence. Vernagallo contended the real reason he was fired was for reporting what he believed to be illegal conduct in his January 15th meeting at the District Attorney’s office.

II. Procedural Background

A. Vernagallo’s Whistleblower Suit.

Several months later, Vernagallo filed suit, alleging he was fired in violation of the Texas Whistleblower Act. The trial court initially dismissed Vernagallo’s claim for failing to exhaust the applicable grievance or appeal procedures before filing suit. Vernagallo appealed, and this court reversed and remanded his case for trial. On remand, the parties tried the case to a jury. The jury found in Vernagallo’s favor and awarded him $3,000.00 in lost wages. The County filed a motion for new trial, arguing the evidence did not support the jury’s causation and good faith findings and urging the trial judge to disregard the jury’s finding that Vernagallo would not have been fired for reasons unrelated to his report of alleged illegal conduct. The trial judge denied this motion and, in the second amended final judgment, awarded Vernagallo his lost wages, attorney’s fees, as well as pre- and post-judgment interest. The County then brought this appeal.

B. The County’s Issues on Appeal.

On appeal, the County raises three points of error. In two issues, the County argues that the evidence does not support the jury’s affirmative finding on Question One. Question One asked the jury,

Was [Vernagallo’s] report of January 15, 1998 to the Harris County District Attorney’s office made in good faith and a cause of [the] County’s terminating [Vernagallo] when it did?

In its first issue, the County asserts that Vernagallo failed to prove that his January 15th report was a cause of his termination. In its second issue, the County asserts that Vernagallo failed to prove he made the report in good faith.

In its third issue, the County asserts the jury’s “No” finding on Question Two was against the great weight and preponderance of the evidence. Question Two asked the jury,

Do you find that [the] County would have terminated [Vernagallo] based solely on information, observation, or evidence that is not related to the fact that [Vernagallo] made a report of a violation of law?

The County argues that the jury should have found in its favor on this question, which is classified as an affirmative defense to a suit under the Texas Whistle-blower Act.

III. No evidence supports the jury’s finding- that the County fired Ver-nagalio because of his January 15th report.

Question One forms the basis of the County’s first two issues on appeal. Question One asked the jury about two facts: 1) Was Vernagallo’s January 15th report made in good faith; and 2) Was that report a cause of his termination? In its first issue, the County contends the evidence is insufficient, both legally and factually, to prove that Vernagallo’s January 15th report was a cause of Vernagal-lo’s termination. In its second issue, the County contends the evidence does not prove Vernagallo made his report in good faith. Because, as we discuss below, the evidence is legally insufficient to prove causation, we do not address the County’s remaining issues.

A. Standard of Review.

The Texas Supreme Court recently considered the appropriate standard of review for a legal sufficiency challenge in City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005). As an appellate court, we consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports it. See id. at 821-22. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the verdict under review. See id. at 827-28. We credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See id. The trier of fact is the sole judge of the witnesses’ credibility and the weight to be given their testimony. See id. at 819-21; Ulmer v. Ulmer, 130 S.W.3d 294, 300 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (en banc). We cannot substitute our judgment for that of the jury, so long as the evidence falls within the zone of reasonable disagreement. See City of Kel- ler, 168 S.W.3d at 821-22. But, “if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it.” Id.

B. Proof by Circumstantial Evidence.

In a whistleblower claim, “[c]ircum-stantial evidence may be sufficient to establish a causal link between the adverse employment action and the reporting of illegal conduct.” City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000) (citing Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996)). Circumstantial evidence in this type of case includes the following:

• knowledge of the report of illegal conduct;
• expression of a negative attitude toward the employee’s report of the illegal conduct;
• failure to adhere to established company policies regarding employment decisions;
• discriminatory treatment in comparison to similarly situated employees; and
• evidence that the stated reason for the adverse employment action is false.

Id. (citing Cont'l Coffee, 937 S.W.2d at 451).

We address each type of circumstantial evidence listed by the Zimlich court below to determine whether any evidence supports a finding that Vernagallo’s January 15th report was a cause of his termination.

1. Zimlich Type One: Knowledge of the Report.

The first type of circumstantial evidence listed by the Zimlich court is knowledge of the report of illegal conduct. Id. As we explain in greater detail below, to prove that an employee’s termination was because of his report of alleged illegal conduct, the employee must show that the person who made the decision to terminate the employee knew of the employee’s report. Our inquiry is further narrowed because the jury was asked specifically about Vernagallo’s January 15th report to the District Attorney’s office. Thus, we initially determine whose knowledge is relevant, before turning to whether that person knew of Vernagallo’s January 15th report.

a. Constable Freeman must have known of Vernagallo’s January 15th report.

For a complainant to show causation in a suit alleging wrongful termination under the Whistleblower statute, the complainant must show that the person who took the adverse employment action knew of the employee’s report of illegal conduct. See id. at 70 (sustaining a legal sufficiency challenge when there was “no evidence in the record ... that the decision-maker ... knew about [the employee’s] report of ... illegal conduct”) (citing Cont'l Coffee, 937 S.W.2d at 451-52); see also Beattie v. Madison County Sch. Dist., 254 F.3d 595, 603-04 (5th Cir.2001) (noting that the school board was the final decision-maker and “if there is no evidence that the board knew of the protected activity,” the employee could not show that the activity was the reason she was fired); City of Forth Worth v. Johnson, 105 S.W.3d 154, 164 (Tex.App.-Waco 2003, no pet.) (“In particular, the employee must show that the person who ultimately made the decision to fire the employee knew of the reported violation of law made by the employee.”). This is because the decision-maker could not fire an employee because of the employee’s report of alleged illegal conduct if the decision-maker did not even know the employee made such a report. See Zimlich, 29 S.W.3d at 70; Beattie, 254 F.3d at 603-04; Johnson, 105 S.W.3d at 164.

In this case, Constable Freeman signed the letter from the County terminating Vernagallo. Constable Freeman testified that an elected constable, such as himself, has the authority to hire and fire without consulting any other person or board. Vernagallo has not contested that Constable Freeman was the final decision-maker. Thus, we look to the record for any evidence to support a finding that Constable Freeman knew of Vemangallo’s January 15th report. See id.

b. No evidence shows that Constable Freeman knew of Vernagallo’s January 15th report.

We find no direct evidence that Constable Freeman knew of Vernagallo’s January 15th report. Vernagallo seems to agree with this conclusion because he relies on circumstantial evidence to prove Constable Freeman had knowledge. However, the events that Vernagallo relies on occurred on January 8th — before the report at issue here. Because these events took place before Vernagallo’s January 15th meeting, they do not constitute evidence that Freeman knew of Vernagallo’s subsequent January 15th report to the District Attorney, as the jury found.

Vernagallo argues that Constable Freeman knew of his January 15th report because Chuck Noll, an assistant District Attorney, asked Sergeant McFadden to investigate the alleged drunk-driving incident. But, as we discuss below, no evidence in the record exists that any of the people present at the meeting told Constable Freeman that Vernagallo was the person who wrote the letter and reported the other two instances of alleged illegal conduct at the January 15th meeting.

The following people were present at the January 15th meeting and testified at trial. Justice of the Peace George Risner testified that he did not inform Constable Freeman (nor any of Vernagallo’s other supervisors) about Vernagallo’s complaints. Assistant District Attorney Chuck Noll also testified that he did not remember talking to anyone at the precinct about Vernagallo’s report on January 15th. Don Stricklin was also present at the meeting. Portions of his deposition testimony were admitted into evidence, but they do not indicate that he ever informed Constable Freeman that Vernagallo was the person who made the report. Verna-gallo also testified that he never told Constable Freeman (or Chief Biehunko or Sergeant McFadden) that he had gone to the District Attorney’s office that day. The evidence also does not support a finding that Constable Freeman discovered some other way that Vernagallo reported these incidents.

To conclude, as the jury did, that Constable Freeman knew Vernagallo submitted the January 15th report requires speculation because the record does not divulge if he knew about it. See id. (“But absent evidence supporting an inference that discrimination was a factor ... a finding of liability rests only on speculation.”); see also City of Keller, 168 S.W.3d at 813 (“In claims or defenses supported only by meager circumstantial evidence, the evidence does not rise above a scintilla (and thus is legally insufficient) if jurors would have to guess whether a vital fact exists.”). Constable Freeman may have suspected Ver-nagallo was the person who reported these incidents to the District Attorney’s office. Or, Constable Freeman may not have known, as he testified. The circumstances Vernagallo relies upon — that Assistant District Attorney Chuck Noll contacted Sergeant McFadden to investigate the incident reported in the anonymous letter and the cash gifts — are “equally consistent with either of [the] two facts.” See Cont’l Coffee, 937 S.W.2d at 450 (citing Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex.1984)). In such a case, “no more than a scintilla of evidence supports a finding and a ‘no evidence’ point must be sustained.” Id. (citing Gammage, 668 S.W.2d at 324).

Vernagallo also urges this court to uphold the jury’s finding to Question One if the County had knowledge of any of Vernagallo’s reports. However, we cannot expand our scope of review to consider issues not presented to the jury, and the jury was not asked about any of Vernagal-lo’s other reports. See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001).

2. Zimlich Type Two: Expression of a Negative Attitude.

The second type of circumstantial evidence listed by the Zimlich court is the expression of a negative attitude toward the report of alleged illegal conduct. See Zimlich, 29 S.W.3d at 69. Vernagallo claims he presented evidence of a negative attitude toward his report of alleged illegal conduct. However, despite Vernagallo’s assertion that the record contains each of the types of circumstantial evidence listed by the Zimlich court and discussed supra, Vernagallo does not identify any record evidence, nor have we found any, to support a finding that Freeman expressed a negative attitude toward Vernagallo’s January 15th report. See id.

The only evidence of a “negative attitude” toward reporting that Vernagallo cites in his brief deals with the cash gifts given to police officers. When Vernagallo asked about the gifts at work, his supervisor, Corporal Clausen, told Vernagallo that “everyone’s been getting the money,” and later stated that, “if you locked up all the corrupt MFs in this department, [then the dispatcher] would be talking to herself on the radio.”

This testimony does not support the jury’s finding for three reasons. First, Constable Freeman — the decision-maker— is not the person who expressed a negative attitude. Second, while we could fairly regard these statements as the expression of a negative attitude toward reporting in general, these statements were made on January 8th, before Vernagallo’s January 15th report. As such, they could not have been an expression of a negative attitude toward the January 15th report that is the basis of this appeal. Third, even if we attributed the statements to the later January 15th report and to Constable Freeman, the expression of a negative attitude toward a report, standing alone, cannot support the jury’s finding. See id. (“But evidence that an adverse employment action was preceded by a superior’s negative attitude toward an employee’s report of illegal conduct is not enough, standing alone, to show a causal connection between the two events. There must be more.”).

3. Zimlich Types Three and Four: Failure to Adhere To Established Policies and Discriminatory Treatment.

The third type of circumstantial evidence listed by the Zimlich court is the failure to adhere to established policies regarding employment decisions; the fourth is discriminatory treatment in comparison to similarly-situated employees. See id. In his brief, Vernagallo asserts that the County failed to adhere to established policies regarding employment decisions and treated Vernagallo differently than similarly-situated employees. Verna-gallo cites the County’s use of unverified and unsustained complaints against him to establish the required causal link between his January 15th report and his termination. However, Vernagallo does not point to any evidence in the record to support these assertions. The complaints were not sustained because the complaints “were not proven, however the complaints were also not disproved.” Constable Freeman’s letter to Vernagallo stated that Vernagallo’s violations of the Departmental Policy and Ethics Manual were the reason for his termination. Vernagallo has not identified, nor have we located record evidence of, a similarly-situated employee who was treated differently. The same is true of Vernagallo’s assertion that the County’s actions violated its own established procedures.

4. Zimlich Type Five: Evidence the Stated Reason for Termination Was False.

The final type of circumstantial evidence listed by the Zimlich court is evidence the stated reason for termination was false. See id. As with the previous categories, Vernagallo asserts in his briefing that the stated reason for his termination was false. Again, however, Verna-gallo does not cite any evidence in the record, and we have found none, to support this claim. And, as evidenced by the multitude of similar complaints about Ver-nangallo’s behavior mentioned previously, Constable Freeman’s stated reason for firing Vernagallo is not implausible. See City of Keller, 168 S.W.3d at 818 (“In discrimination cases, discharged employees will never have to prove that the reason given for termination was a pretext if no-evidence review must disregard [the stated] reason.”). Without any evidence, the jury could only speculate that the stated reason for Vernagallo’s termination was false. See Zimlich, 29 S.W.3d at 70 (“[A]bsent evidence supporting an inference ... a finding of liability rests only on speculation.”); City of Keller, 168 S.W.3d at 813 (stating evidence is legally insufficient if the evidence does not rise above a scintilla and jurors could only guess whether a vital fact exists).

Thus, the record does not contain any of the types of circumstantial evidence listed by the Zimlich court to show that the County fired Vernagallo because of his January 15th report. Nor does the record contain any direct evidence to prove that fact. We conclude the evidence is legally insufficient to support the jury’s answer to Question One, which asked whether Verna-gallo’s January 15th report was made in good faith and a cause of his termination, and sustain the County’s first point of error.

Because we have sustained the County’s legal sufficiency challenge to the evidence supporting causation, we do not address its factual sufficiency challenge to causation. See El Paso Prod. Co. v. Valence Operating Co., 112 S.W.3d 616, 625 (Tex.App.Houston [1st Dist.] 2003, pet. denied) (sustaining legal sufficiency challenge and not addressing factual sufficiency challenge); In re C.O., 65 S.W.3d 175, 183 (Tex.App.Tyler 2001, no pet.) (same); Houston Mercantile Exch. Corp. v. Dailey Petroleum Corp., 930 S.W.2d 242, 248 (Tex.App.Houston [14th Dist.] 1996, no writ) (same). For similar reasons, we also need not address Question Two, which presented the County’s affirmative defense and was predicated on an affirmative answer to Question One (Vernagallo’s whistleblower cause of action). The affirmative defense question was relevant and needed to be submitted to the jury only if Venagallo first proved his claim. Because we already have held that Vernagallo did not prove his claim, the question is moot.

IV. Conclusion

We have reviewed the record and found no evidence to support the jury’s finding that the County terminated Vernagallo’s employment because of his January 15th report to the District Attorney’s office. Thus, we reverse the trial court’s judgment, and we render judgment that Verna-gallo take nothing on his claims.

      . Although Vernagallo was nominated for the award in 1994, he did not receive the award until the 1996 awards banquet.

      . In Sergeant McFadden’s opinion, Vernagal-lo "intentionally turned over more controlled substances [to court personnel rather than the property room custodian] .,. after being told not to continue this practice...."

      . An attached fax cover page indicated that Harris County Judge Robert Eckels forwarded the anonymous letter to Constable Freeman.

      . The parties sometimes refer to Mr. Stricklin, now the Honorable Don Stricklin of the 337th District Court of Harris County, as "Don Strickland.” For simplicity, we refer to him as Don Stricklin.

      . The District Attorney’s office previously investigated this incident, but no charges were filed.

      . Sergeant McFadden was also contacted by the District Attorney’s office to investigate the allegations of $100 cash gifts to the officers.

      . At trial, Vernagallo denied that the substance was marijuana.

      . Vernagallo originally pleaded a violation of the Texas Labor Code and later amended his pleading to allege a claim under the Texas Whistleblower Act. See Tex. Gov't Code § 554.001-.010.

      . See Tex. Gov’t Code § 554.006 (requiring employee to initiate action under the grievance or appeal procedures of the employer before suing under this chapter).

      . Vernagallo v. Freeman, No. 14-99-00584—CV, 2000 WL 1357206 (Tex.App.-Houston [14th Dist.] Sept. 21, 2000, no pet.) (not designated for publication).

      . See Tex. Gov’t Code § 554.003 (specifying the relief available in a successful claim).

      . Tex. Gov’t Code § 554.004(b) ("It is an affirmative defense ... that the employing state or local governmental entity would have taken the action against the employee ... based solely on information, observation, or evidence that is not related to the fact that the employee made a report protected under this chapter of a violation of law.”). We note that, despite its characterization in the Government Code as an affirmative defense, proof under this section actually negates the causation element of a whistleblower plaintiff’s cause of action. See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.1996) (“An affirmative defense does not seek to defend merely by denying the plaintiff’s claims, but rather seeks to establish 'an independent reason why the plaintiff should not recover.' ”); Walzier v. Newton, 27 S.W.3d 561, 563-64 (Tex.App.-Amarillo 2000, no pet.) (stating that affirmative defenses are interposed to defeat a prima facie case established by the plaintiff, and sole proximate cause was not an affirmative defense because it purported to negate an element of the plaintiff's cause of action); Buls v. Fuselier, 55 S.W.3d 204, 211 (Tex.App.-Texarkana 2001, no pet.) ("[A]n affirmative defense relieves the defendant of liability even if all the elements of the plaintiff's cause of action are established.”) (citing Moulton v. Alamo Ambulance Serv., Inc., 414 S.W.2d 444, 448 (Tex.1967)); Metrocon Constr. Co., Inc. v. Gregory Constr. Co., Inc., 663 S.W.2d 460, 464 (Tex.App.-Dallas 1983, writ ref’d n.r.e.) (on reh’g) ("By an affirmative defense a defendant, rather than denying the existence of the plaintiff’s allegations, attempts to avoid the plaintiff’s allegations by proving a new, independent fact.”). Under the Whistleblower statute, proof that the governmental employer would have made the same decision solely because of a reason unrelated to the employee’s protected report negates an essential element of the whistleblower plaintiff's case, namely, that the report was a cause of the adverse employment action. If the plaintiff was fired solely for a reason unrelated to his report of illegal activity, then his report could not have been a cause of his termination. And, like two sides of the same coin, if the report was a cause of his termination, the plaintiff could not have been fired solely because of an unrelated reason.

        . See Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex.1995) ("[T]he standard of causation in whistleblower and similar cases should be that the employee’s protected conduct must be such that, without it, the employer’s prohibited conduct would not have occurred when it did.”).

      . We address the County’s legal sufficiency challenge first. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam); Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex.App.-Houston [14th Dist.] 1996, no writ) (en banc); see also City of Houston v. Cotton, No. 14-03-00637-CV, 2005 WL 646096, *4 (Tex.App.-Houston [14th Dist.] Mar. 22, 2005, no pet. h.) ("When ... both legal and factual sufficiency challenges are raised on appeal, the appellate court must first examine the legal sufficiency of the evidence.”) (citing Trimble v. Tex. Dep’t of Protective & Regulatory Servs., 981 S.W.2d 211, 217 (Tex.App.-Houston [14th Dist.] 1998, no pet.)).

      . Vernagallo does, however, urge this court to consider the knowledge of other supervisors. In his brief, Vernagallo asserts: "Employment decisions by the County were not made by Freeman alone working in a vacuum. As the Constable, Freeman oversaw the Precinct 2 office, and relied on his first-line supervisors to carry out much of the duties.”
      No record citation follows, nor have we been able to locate any evidence in the record to support this assertion. Although not specifically stated by Vernagallo, we interpret his argument as one that asks this court to uphold the County’s liability under a "conduit” theory.
      We decline to do so, in part, because the Texas Supreme Court has not adopted the "conduit” theory, which permits liability when "one supervisor makes a recommendation regarding an employee to another innocent supervisor who acts on that recommendation without conducting any independent judgment.” See Zimlich, 29 S.W.3d at 70-71 (also stating the court "need not consider ... whether liability can be based on a ‘conduit’ theory” because there was no evidence that another employee was the conduit for bad motives).
      Additionally, as in Zimlich, even assuming the viability of the theory, there is no evidence that Constable Freeman decided to fire Ver-nagallo based upon the recommendation of another supervisor without exercising any independent judgment. See id. at 71. Therefore, we consider only Constable Freeman’s purported knowledge.

      . Vernagallo relies upon the following events that occurred at his January 8th meeting in Chief Biehunko’s office to establish knowledge. At this meeting, Vernagallo was shown the anonymous letter and asked if he had written it. Vernagallo denied writing the letter. _ According to Vernagallo’s testimony, he was then handed the letter referring him to the EAP program along with a fax cover sheet from Judge Eckels addressed to Constable Freeman. Vernagallo later admitted to Bie-hunko that he had written the letter and, according to Vernagallo’s testimony, Biehun-ko then responded, "I know.” Chief Biehun-ko denied that this exchange occurred.

      . The specifics of this incident were detailed in the anonymous letter that Vernagallo claimed he had authored during his January 15th meeting at the District Attorney’s office. Sergeant McFadden was also asked to investigate the $100 cash gifts to police officers that Vernagallo reported.

      . On appeal, Vernagallo also urges this court to uphold the jury’s finding based upon his referral to EAP and his reassignment to building security and desk duties, which he asserts were other adverse employment actions. The jury was not asked, however, whether these decisions were caused by Vernagallo’s report, Therefore, we do not consider them. See Bradford, 48 S.W.3d at 754 ("Because [appellants] did not object to the jury charge, we review the sufficiency of the evidence in light of the charge submitted.”).

      . Sergeant McFadden, who was in charge of internal affairs, testified that when a complaint was "not sustained,” it meant the department could not determine "whether [the complained-of activity was] lawful or unlawful or a violation of policy or not.”

      . Constable Freeman testified that he fired Vernagallo because of the incident involving citizens Laredo and Compuzano that Deputy Coyle witnessed. Chief Biehunko testified that any police officer would have been terminated for mistreating citizens and destroying drug evidence.