text:
    In re COMMITMENT OF Lonnie VANZANDT.
    No. 09-03-466 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Jan. 25, 2005.
    Decided Feb. 3, 2005.

      Daniel E. Maeso, Section Chief, State Counsel for Offenders, Nelda F. Williams, State Counsel for Offenders, Huntsville, for appellant.
    Autumn Lewis, Special Prosecution Unit, Huntsville, for appellee.

      Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

The State of Texas filed a petition to commit Lonnie VanZandt as a sexually violent predator. See Tex. Health & Safety Code Ann. §§ 841.001-.147 (Vernon 2003 & Supp.2005). A jury found VanZandt suffers from a behavioral abnormality making him likely to engage in a predatory act of sexual violence, and the appellant does not challenge the sufficiency of the evidence to support the verdict. VanZandt presents five issues in his appeal from the judgment and order of civil commitment. We find no error and affirm the judgment.

In his first issue, VanZandt contends the trial court abused its discretion in allowing rebuttal testimony by the State’s witness to exceed the proper scope of rebuttal. After the State rested and the appellant and his expert testified, the trial court permitted the State to present testimony from the therapist who conducted the clinical interview of VanZandt during the initial evaluation for civil commitment proceedings. “When it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time; provided that in a jury case no evidence on a controversial matter shall be received after the verdict of the jury.” Tex.R. Civ. P. 270. The decision to permit a party to present additional evidence after having rested is within the trial court’s discretion.

See Word of Faith World Outreach Ctr. Church, Inc. v. Oechsner, 669 S.W.2d 364, 366 (Tex.App.-Dallas 1984, no writ) (exclusion of rebuttal evidence held not abuse of discretion). We cannot reverse a judgment because the trial court permitted a party to re-open unless that decision was an abuse of discretion. In re Protection of H.W., 85 S.W.3d 348, 357-58 (Tex.App.Tyler 2002, no pet.) (citing Word of Faith World Outreach Ctr. Church, Inc., 669 S.W.2d at 367). In H.W., the reviewing court held the trial court did not abuse its discretion in permitting the State to reopen after the close of evidence. In re Protection of H.W., 85 S.W.3d at 357-58 (although the State failed to show due diligence in offering the expert testimony, the one week delay was not unreasonable and no injustice was shown). In this case, VanZandt complains that the testimony extended beyond the proper scope of rebuttal, but he neither demonstrates surprise or prejudice from permitting the State to present its testimony out of order, nor argues the evidence would have been inadmissible on case-in-chief. Issue one is overruled. The appellant’s second issue contends the judgment is void because Health and Safety Code § 841.041 violates the state constitutional prohibition on the passage of special and local laws changing the venue in civil and criminal cases. See Tex. Const, art. 3, § 56; Tex. Health & Safety Code Ann. § 841.041(a) (Vernon Supp.2005). VanZandt did not present this challenge to the trial court, and raises the issue for the first time on appeal. Therefore, no error is preserved for appellate review. In re Commitment of Johnson, 153 S.W.3d 129 (Tex.App.-Beaumont, 2004, no pet. h.)(not yet reported); Tex. R.App. P. 33.1. Issue two is overruled.

In his third issue, VanZandt argues Section 841.082(d) of the Texas Health and Safety Code is void for vagueness “in that it appears to mandate the trial judge to transfer jurisdiction ‘for purposes of appeal’ to another district court....” See Act of May 30, 1999, 76th Leg., R.S., ch. 1188 § 4.01, 1999 Tex. Gen. Laws 4122, 4148, amended by Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 24, 2003 Tex. Gen. Laws 1505, 1517 (current version at Tex. Health & Safety Code Ann. § 841.082(d) (Vernon Supp.2005)) (“Immediately after the case becomes final for purposes of appeal, the judge shall transfer jurisdiction of the ease to a district court, other than a family district court, having jurisdiction in the county in which the person is residing, except that the judge retains jurisdiction of the case with respect to a civil commitment proceeding conducted under Sub-chapters F and G.”). We considered and rejected the same argument in In re Commitment of Lowe, 151 S.W.3d 739, 741-744 (Tex.App.-Beaumont, 2004, pet. filed). We reject VanZandt’s argument for the same reasons expressed in Lowe. Issue three is overruled.

The appellant’s fourth issue claims that the trial judge showed partiality before the jury. VanZandt argues the judge displayed bias by allowing the State to present a witness after the appellant rested, by making appellant’s counsel repeat properly made objections, and by assisting the State’s attorney in offering evidence. Of the seventeen instances of error featured in his brief, none of them were the subject of the objection raised on appeal. An “objection to a trial court’s alleged improper conduct or comment must be made when it occurs if a party is to preserve error for appellate review, unless the conduct or comment cannot be rendered harmless by proper instruction.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). Issue four is overruled.

In his fifth issue, VanZandt contends the commitment requirements of Health and Safety Code Section 841.082, and the final judgment and commitment order entered in accordance with the statute, violate appellant’s due process rights because they are overly broad and vague. See Act of May 30, 1999, 76th Leg., R.S., ch. 1188 § 4.01,1999 Tex. Gen. Laws 4122, 4147-48, amended by Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 24, 2003 Tex. Gen. Laws 1505, 1516-17 (current version at Tex. Health & Safety Code Ann. § 841.082(a) (Vernon Supp.2005)). The arguments presented by VanZandt were also presented and rejected in other appeals taken under the SVP statute. See Johnson, slip op. at 4-6; In re Commitment of Castillo, 144 S.W.3d 655, 656-57 (Tex.App.-Beaumont 2004, no pet.). As the appellant presents no argument for departing from that precedent, we shall address only those arguments not considered in Johnson and Castillo.

VanZandt challenges several provisions of a document titled “Civil Commitment Requirements: Treatment and Supervision Contract.” The document was attached to VanZandt’s pre-trial motion to dismiss the State’s petition on the ground that it was unconstitutionally punitive. Although the document is attached to a pre-trial motion, VanZandt did not present the trial court with the vagueness challenge this issue involves, nor did he object to the individual requirements mentioned in his brief on appeal. Because the errors asserted on appeal were not presented to the trial court, the appellant’s arguments have not been preserved for appellate review. Castillo, 144 S.W.3d at 656; Tex.R.App. P. 33.1. Issue five is overruled. We affirm the judgment.

AFFIRMED.

      . The trial court denied the motion without a hearing.


source: Caselaw Access Project

author: Justice WHITTINGTON.

license: Public Domain

text:
    Armand Paul BOURQUE, Appellant, v. The STATE of Texas, Appellee.
    Nos. 05-04-00006-CR, 05-04-00041-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 14, 2005.

      Mark Heidenheimer, Mark Heidenheimer, P.L.L.C., McKinney, for Appellant.
    John R. Roach, Collin County District Attorney, Emily M. Johnson-Liu, McKinney, for State.
    Before Justices MORRIS,. WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice WHITTINGTON.

Armand Paul Bourque appeals his convictions for aggravated assault (cause number 05-04-00006-CR), aggravated sexual assault of a child, and indecency with a child (cause number 05-04-00041-CR). After the jury found appellant guilty, the trial judge assessed punishment at twenty years’ confinement, life confinement, and twenty years’ confinement, respectively. In addition, the jury made an affirmative finding that he used or exhibited a deadly weapon during commission of the aggravated assault. In both appeals, appellant claims he received ineffective assistance of counsel at trial. In the appeal of the aggravated sexual assault and indecency convictions, he also contends the trial judge erred in overruling his objection to hearsay. We affirm the trial court’s judgments.

Factual & PROCEDURAL HistoRy

Á grand jury, impaneled by the 380th Judicial District Court in Collin County, indicted appellant on October 10, 2002 for aggravated assault, aggravated sexual assault, and indecency with a child. The victim in all three cases, A.B., is appellant's daughter. The cases were originally assigned to the 219th Judicial District Court but later transferred pursuant to formal transfer orders to the 416th Judicial District Court. Following a four-day trial, the jury found appellant guilty of all three offenses. These appeals followed.

Hearsay

In cause number 05-04-00041-CR, appellant' claims the trial judge erred in overruling his objection to hearsay testimony. Under this argument, appellant contends the testimony of Joseph Sacco, a licensed professional counselor and therapist, was not admissible as a hearsay exception under evidentiary rule 803(4). See Tex.R. Evid. 803(4). Appellant argues the “improper admission of this hearsay testimony constitutes harm” and that we must therefore reverse his conviction and remand for new trial.

We conclude we need not address whether Sacco’s testimony qualified as an exception to the hearsay rule because, even assuming it did not and the trial judge erred in overruling appellant’s objection, the record fails to demonstrate that this error requires reversal. Texas Rule of Appellate Procedure 44.2(b) provides that we “must disregard a non-constitutional error that does not affect a criminal defendant’s ‘substantial rights.’ ” Garcia v. State, 126 S.W.3d 921, 927 (Tex.Crim.App.2004); see Tex.R.App. P. 44.2(b). Under rule 44.2(b), we may not reverse for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury’s verdict. Garcia, 126 S.W.3d at 927 (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998) and King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997)); Jones v. State, 111 S.W.3d 600, 604-05 (Tex.App.-Dallas 2003, pet. refd).

After examining the entire record of appellant’s trial, we have fair assurance that the error, if any, did not have a “substantial and injurious effect or influence in determining the jury’s verdict at the punishment phase.” See Garcia, 126 S.W.3d at 927. We base this conclusion on the considerable amount of evidence presented during trial that was substantially similar to Sacco’s, specifically A.B.’s explicit and detailed testimony of her father’s sexual abuse over a period of five years. Because the improper admission of evidence is rendered harmless when other properly admitted evidence proves the same fact, we cannot conclude the record in this case demonstrates reversible error. See Brooks v. State, 990 S.W.2d 278, 287 (Tex.Crim.App.1999) (holding any error in admitting complained-of evidence was harmless in light of other properly admitted evidence proving same fact); Jones, 111 S.W.3d. at 604-05 (same). We overrule appellant’s first ground of error in cause number 05-04-00041-CR.

Ineffective Assistance of Counsel

In both appeals, appellant argues he was denied the effective assistance of counsel at trial and that we must therefore reverse his convictions and remand for new trial. According to appellant, these cases originated in the 380th Judicial District Court but were transferred without formal transfer orders. He contends trial counsel was ineffective for failing to file a plea to the jurisdiction in each case. Appellant asserts the failure to file pleas to the jurisdiction in the trial court waived his right to complain on appeal of the lack of formal transfer orders, and that, but for this error, the “result of the proceeding would have been different” in that the cases would have been continued until proper transfer orders were entered.

We examine ineffective assistance of counsel claims under well-established standards. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App.1986). In brief, it is appellant’s burden to show by a preponderance of the evidence (i) trial counsel’s performance was deficient in that it fell below the prevailing professional norms and (ii) the deficiency prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability the result of the proceeding would have been different. See Mallett v. State, 65 S.W.3d 59, 62-63 (Tex.Crim.App.2001); Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App.1999).

The Texas Code of Criminal Procedure sets forth the organization and duties of the grand jury. See Tex.Code CRiM. PROC. Ann. arts. 19.01-20.22 (Vernon 1977 & Supp.2004-05). The grand jury is impaneled from an array selected either by grand jury commissioners appointed by the district judge or by the district judge “in the same manner as for the selection and summons of panels for the trial of civil cases in the district courts.” Tex.Code Ceim. PROC. Ann. arts. 19.01, 19.06 (Vernon Supp .2004-05); Ex parte Edone, 740 S.W.2d 446, 448 (Tex.Crim.App.1987). Once formed and impaneled by the district judge, the grand jury inquires “into all offenses liable to indictment” and hears all the testimony available before voting on whether to indict the accused. Tex.Code Crim. PROC. Ann. arts. 20.09, 20.19 (Vernon 1977); Ex parte Edone, 740 S.W.2d at 448. The grand jury’s “deliberations concerning any inquiry into presentment of an indictment are secret,” giving it a separate and independent nature from the court in which it is impaneled. Ex parte Edone, 740 S.W.2d at 448. Nevertheless, because the court exercises some “supervisory power over the grand jury, whether by impaneling, reassembling, qualifying, quashing subpoenas, or aiding investigations,” the grand jury is “often characterized as an arm of the court by which it is appointed rather than an autonomous entity.” Dallas County Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex.App.-Dallas 1998, no pet.). After the conclusion of testimony, the grand jury votes “as to the presentment of an indictment.” Tex.Code CRIM. PROC. Ann. art. 20.19 (Vernon 1977). “[I]f nine members concur in finding the bill,” the state’s attorney prepares the indictment, the grand jury foreman signs it, and it is delivered to the judge or clerk of the court. Tex.Code Crim. PROC. Ann. arts. 20.19-20.21 (Vernon 1977 & Supp.2004-05). Following presentment, the indictment is filed in a court with competent jurisdiction, i.e., jurisdiction to hear the case. See Hultin v. State, 171 Tex.Crim: 425, 435, 351 S.W.2d 248, 255 (1961).

In counties having two or more district courts, “the judges of the courts may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts.” Tex. Gov’t Code Ann. § 24.304 (Vernon 2004); see Tex. Gov’t Code Ann. § 74.093 (Vernon 1998) (addressing adoption of local rules of administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases). Thus, although a specific district court may impanel a grand jury, it does not necessarily follow that all cases returned by that grand jury are assigned to that court. See Tamez v. State, 27 S.W.3d 668, 675 n. 1 (Tex.App.-Waco 2000, pet. refd) (noting that “the judges of the Harris County district courts exercising criminal jurisdiction have adopted a procedure by which indictments are filed in each court on a rotating basis without reference to the court which empaneled the grand jury presenting the indictments.”).

Although appellant asserts he was denied the effective assistance of counsel at trial because trial counsel did not file a plea to the jurisdiction in each case, raising the lack of a transfer order from the 380th Judicial District Court, we cannot agree. The record shows the grand jury was impaneled in the 380th Judicial District Court. Following the return of appellant’s indictments, the cases were filed in the 219th Judicial District Court. Nothing in the record indicates appellant’s cases were originally filed in or appeared on the trial docket of the 380th Judicial District Court. Because the record reflects appellant’s cases were first filed in the 219th Judicial District Court, no transfer orders from the 380th Judicial District Court were required. Since no transfer orders were required, trial counsel could not be ineffective for failing to file pleas to the jurisdiction complaining of the lack of transfer orders. See Thacker v. State, 999 S.W.2d 56, 67 (Tex.App.-Houston [14th Dist.] 1999, pet. refd) (trial counsel not ineffective for failing to file motion to quash or object to indictment when indictment was legally sufficient). Because appellant faded to establish trial counsel’s performance was deficient, we conclude his complaint lacks merit. We overrule this ground of error in both cases.

We affirm the trial court’s judgments.


author: BRIAN QUINN, Justice.

text:
    Kim W. GATEWOOD, Appellant, v. The STATE of Texas, Appellee.
    No. 07-04-0247-CR.
    Court of Appeals of Texas, Amarillo.
    Feb. 14, 2005.
    David Crook, Crook & Jordan, Lubbock, for Appellant.
    Wade Jackson, Asst. Criminal District Atty., Lubbock, for Appellee.
    Before QUINN, REAVIS and CAMPBELL, JJ.
   BRIAN QUINN, Justice.

Appellant, Kim W. Gatewood, appeals his conviction for falsely identifying himself as a police officer in violation of § 37.12 of the Texas Penal Code. His two issues involve the legal and factual sufficiency of the evidence supporting his conviction. He contends that the evidence was insufficient because the prosecutor failed to establish that the Republic of Texas was an official law enforcement agency. We affirm.

Background

Appellant, a member of an organization known as the Republic of Texas, was arrested by a Lubbock police officer after observing appellant wearing a badge. The latter was circular with an inset of a large five-pointed star. On the top of the badge appeared the words “Republic of Texas,” while on the bottom appeared the word “Sheriff’. Imprinted on the star was the word “Texas.” So too was appellant found in possession of an identification card and an oath of office. The former, entitled “International Certificate of Competency,” purported to certify him as competent to operate “cars, trucks, vans, and cycles.” The latter contained an oath depicting that appellant swore to “faithfully execute the duties of the office of deputy sheriff, of the Republic of Texas.... ”

Prior to his arrest, appellant was in a local restaurant with a group of others belonging to the Republic of Texas. Furthermore, the police were summoned to the establishment when a restaurant employee saw one of the group with a firearm.

Law

The standards by which we review the legal and factual sufficiency of the evidence are found in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), Sims v. State, 99 S.W.3d 600 (Tex.Crim.App.2003), Zuliani v. State, 97 S.W.3d 589 (Tex.Crim.App.2003), and King v. State, 29 S.W.3d 556 (Tex.Crim.App.2000). We refer the parties to them for an explanation of those standards.

Next, to be convicted of falsely identifying oneself as a peace officer, the person must make, provide to another person, or possess “a card, document, badge, insignia, shoulder emblem, or other item bearing an insignia of a law enforcement agency that identifies a person as a peace officer ...” and “the person who makes, provides, or possesses the item bearing the insignia [must know] that the person so identified by the item is not commissioned as a peace officer ... as indicated on the item.” Tex. Pen.Code Ann. § 37.12(a) (Vernon 2003). According to appellant, the State failed to satisfy the first element because the badge he wore was not an insignia of an “official” law enforcement agency since the Republic of Texas was non-existent.

To the extent appellant argues that the phrase “law enforcement agency” connotes an “official” agency recognized by law, we find authority for the position. Fallin v. State, 93 S.W.3d 394, 396 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). So, it could be said that the entity which the defendant purports to represent must be an “official” law enforcement agency. And, while it may be that the Republic of Texas is not such an agency, as appellant concedes on appeal, the same is not true of the office of “Sheriff.” Indeed, state law recognizes that a sheriff is a peace officer in Texas. Tex.Code Crim. PROC. Ann. art. 2.12(1) (Vernon Supp.2004-05). Furthermore, we take judicial notice that the office of sheriff involves both administrative and law enforcement duties.

Next, “a law enforcement agency” has been defined as “an agency of the state or an agency of a political subdivision of the state authorized by law to employ peace officers.” Tex.Code Ceim. PROC. Ann. art. 59.01(5) (Vernon Supp.2004-05); see also Tex. Pen.Code Ann. § 37.08 (Vernon 2003) (False Report to Peace Officer or Law Enforcement Employee) (defining “law enforcement agency” by the definition found in article 59.01 of the Code of Criminal Procedure). And, not only are sheriffs and their deputies peace officers, Tex.Code Crim. PROC. Ann. art. 2.12(1) (Vernon Supp. 2004-05), but also the former is authorized to hire the latter. Therefore, we cannot but conclude that the office of “sheriff’ in Texas constitutes an “official” law enforcement agency. This, coupled with the evidence that the word “sheriff’ appeared on the badge appellant wore, the badge likened to others utilized by official law enforcement agencies in Texas, the badge contained a lone star (our state’s emblem), and the word “Texas” appeared in the star, constitutes sufficient evidence upon which a fact finder could rationally conclude, beyond reasonable doubt, that appellant possessed an insignia of an official law enforcement agency identifying him as a commissioned peace officer. And, that the badge may have also contained language of an entity falling outside the scope of such an agency does not require us to hold otherwise. See Davis v. State, No. 05-95-01499-CR, 1997 WL 348545, at *3, 1997 Lexis 3282 at *7-*9 (Tex.App.-Dallas June 25, 1997, no writ) (not designated for publication) (wherein the court found the evidence sufficient to support conviction because the identifying card possessed by Davis contained the words “Department of Public Safety” even though it also indicated that he held the post as an employee of a private railroad holding company). Finally, no other evidence of record, when considered alone or en masse would render the factual finding to which we allude manifestly wrong or unjust.

Accordingly, we overrule the two issues and affirm the judgment of the trial court.

      . A sheriff is a conservator of the peace in his county and shall arrest all offenders against the laws of the State in his view or hearing and take them before the proper court for examination or trial. Tex.Code Crim. Proc. Ann. art 2.17 (Vernon 1977). Thus, he is charged with investigating and enforcing the laws of the state. Robertson County v. Wymola, 17 S.W.3d 334, 341 (Tex.App.-Austin 2000, pet. denied). Unquestionably, then, a sheriff is a law enforcement official. See City of Waco v. St. Paul Fire and Marine Ins. Co., 16 S.W.3d 101, 103 (Tex.App.-Houston [1st Dist.] 2000, no pet.).


author: Justice LANG-MIERS.

text:
    James E. THOMAS and Anne Charron-Thomas, Appellants, v. OMAR INVESTMENTS, INC., d/b/a Carpet Mills of America; Waleed K. Almallah, Individually and d/b/a Carpet Mills of America; Carpet Factory Outlet-Northwest Freeway, Inc. d/b/a Carpet Mills of America; Carpet Factory Outlet-FM 1960 West, Inc., d/b/a Carpet Mills of America; Salam Investments Group, Inc., d/b/a Carpet Mills of America; Lexington Carpets, Inc., d/b/a Carpet Mills of America; Rasmi Almallah, Individually and d/b/a Carpet Mills of America; The Lexington Industry, Inc., d/b/a Carpet Mills of America; Haneen Investments, Inc., d/b/a Carpet Mills of America, Appellees.
    No. 05-03-00248-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 17, 2005.

      Carmen Blankenship, Robert H. Power & Associates, P.C., Irving, for Appellant.
    Khalid V. Hamideh, Garland, Michael Chester Diksa, Dallas, for Appellee.
    Before Justices BRIDGES, FITZGERALD, and LANG-MIERS.
   NUNC PRO TUNC OPINION

Opinion by

Justice LANG-MIERS.

On motion of appellants in this case, we issue this nunc pro tunc opinion to correct a clerical error in our March 9, 2004, opinion. We vacate our previous opinion. This is now the opinion of the Court.

This appeal is from a summary judgment granted in favor of appellees in a suit brought by appellants (the- Thomases) for breach of express and implied warranties and violations of the Texas Deceptive Trade Practices Act (DTPA). We reverse and remand.

Factual and Procedural Background

On July 17, 2000, the Thomases purchased hardwood flooring from a Carpet Mills of America retail outlet store in Lew-isville, Texas. The Thomases told one of the store’s salespersons that they had three indoor dogs and wanted a floor the dogs could not scratch. In response, the salesperson told Anne Charron-Thomas that the Anderson hardwood flooring would not be scratched by her dogs and that the flooring was so tough she could rub a Brillo pad over it without scratching it. Within one week of the floor’s installation, the flooring was severely scratched. The Thomases notified the Carpet Mills of America store where they purchased the flooring about the scratches, and the store sent representatives out to survey the damage. The store’s representatives agreed that the flooring was damaged, but the store refused to replace the flooring or pay for its repair.

On May 17, 2001, the Thomases filed a petition for monetary damages and injunc-tive relief against the Carpet Mills of America defendants. The Thomases pleaded claims for breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, breach of an express warranty, and violations of the DTPA. On July 11, 2002, the Carpet Mills of America defendants filed a combined traditional and no-evidence motion for summary judgment. The Thomases filed a response to the summary judgment motion on September 30, 2002. On October 22, 2002, the trial court signed an order granting summary judgment in favor of the Carpet Mills of America defendants. On November 18, 2002, the trial court signed an order striking all of the Carpet Mills of America defendants’ summary judgment evidence. The Thom-ases filed a motion for new trial on December 18, 2002, and the motion was denied on February 13, 2003. This appeal followed. The issue presented is whether the trial court properly granted summary judgment. Because Carpet Mills of America filed a combined traditional and no-evidence motion for summary judgment, we will address both standards of review.

STANDARDS OF REVIEW

Traditional Summary Judgment

The standard of review in traditional summary judgment cases is well established. The issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.. Tex.R. Civ. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). The movant bears the burden of proof and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). All evidence and any reasonable inferences must be viewed in the light most favorable to the nonmovant. Nixon, 690 S.W.2d at 548-49. Evidence favoring the movant’s position will not be considered unless it is not controverted: Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965).

A defendant is entitled to summary judgment if it conclusively negates an essential element of the plaintiffs case or conclusively establishes all necessary elements of an affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). A defendant must establish each element of an affirmative defense when it moves for summary judgment based on that affirmative defense. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). Summary judgment will be affirmed only if the- record establishes that the movant conclusively proved all elements of its affirmative defense as a matter of law. City of Hous ton v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

No-evidence Summary Judgment

A no-evidence summary judgment is essentially a pretrial directed verdict. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). After an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claim. See Tex R. Civ. P. 166a(i); Espalin v. Children’s Med. Ctr. of Dallas, 27 S.W.3d 675, 682-83 (Tex.App.-Dallas 2000, no pet.). A party should not move for no-evidence summary judgment based on an affirmative defense that it has the burden to prove at trial. See Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The moving party must file a motion that specifies which elements of the nonmoving party’s claim lack supporting evidence. Tex.R. Civ. P. 166a(i). Once a proper motion is filed, the burden shifts to the nonmoving party to present evidence raising any issues of material fact. Murray v. Ford Motor Co., 97 S.W.3d 888, 890-91 (Tex.App.-Dallas 2003, no pet.). We review the evidence in the light most favorable to the party against whom the summary judgment was rendered. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002).

Discussion

In their first issue, the Thomases argue that traditional summary judgment was improperly granted because the Carpet Mills of America defendants failed to negate any essential element of the Thom-ases’ claims or to establish all elements of an affirmative defense as a matter of law. We agree. The Carpet Mills of America defendants’ motion for summary judgment asserted that the Thomases could not establish any of their warranty claims because of a disclaimer contained in the sales invoice for the flooring. A disclaimer of warranty is an affirmative defense. Great Am. Prods, v. Permabond Int’l, 94 S.W.3d 675, 683 (Tex.App.-Austin 2002, pet. denied). For summary judgment purposes, affirmative defenses must be proven as a matter of law by the party asserting the defense. Cathey, 900 S.W.2d at 341.

In the present case, the Carpet Mills of America defendants submitted a sales invoice for the flooring, two affidavits, a “completion of work” certificate, and the motion for summary judgment itself in support of their motion for summary judgment. All of this supporting evidence was later stricken by the trial court as improper summary judgment evidence. All that remained was the motion for summary judgment itself. However, the motion for summary judgment is not summary judgment evidence. Bakali v. Bakali, 830 S.W.2d 251, 256 (Tex.App.-Dallas 1992, no writ). As a result, the Carpet Mills of America defendants submitted no evidence to establish the affirmative defense of disclaimer as a matter of law. We find that the trial court’s order granting traditional summary judgment was improper.

In their next five issues, the Thom-ases assert that no-evidence summary judgment was improperly granted for several reasons: (1) in their motion for summary judgment, the Carpet Mills of America defendants failed to specifically allege which elements of the Thomases’ claims lacked supporting evidence; (2) an adequate time for discovery had not passed; (3) the Thomases raised a genuine issue of fact to all elements of their claims; and (4) summary judgment was granted for causes of action that were not addressed in the motion for summary judgment. We agree that the Carpet Mills of America defendants failed to specifically allege which elements of the Thomases’ claims lacked supporting evidence and do not reach the remaining issues.

In a no-evidence motion for summary judgment, the movant must specifically state which elements of the nonmovant’s claims lack supporting evidence. Tex.R. Civ. P. 166a(i). The movant cannot rely on an affirmative defenses that it has the burden to prove at trial. See Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex.App.-Houston [14th Dist.] 2003, no pet.). The Carpet Mills of America defendants’ motion for summary judgment fails to meet the requirements of Rule 166a(i) because it does not specify any elements of the Thomases’ claims that lack supporting evidence. Rather, the motion alleges that the Thomases lack supporting evidence for their breach of warranty claims because of an affirmative defense — a disclaimer that the Carpet Mills of America defendants argue is contained in the sales agreement for the flooring. Because the Carpet Mills of America defendants’ motion for summary judgment did not specifically state which elements of the Thomases’ claims lacked supporting evidence and relied on the affirmative defense of disclaimer as a basis for no-evidence summary judgment, we find that the no-evidence summary judgment motion was improperly granted.

In their final issue, the Thomases argue that the trial court improperly limited the evidence the Thomases could use in response to the Carpet Mills of America defendants’ summary judgment motion. We do not address this issue because of our resolution of the other issues.

Conclusion

We conclude that summary judgment was improperly granted and reverse and remand this case for further proceedings.

      . The Thomases filed claims against eleven named defendants, all of which are appellees to this appeal. Two of the defendants were individually named in the Thomases' petition: (1) Waleed K. Almalláh; and (2) Rasmi Almal-lah. The remaining nine defendants were named as business entities, all doing business as Carpet Mills of America: (1) Omar Investments, Inc., (2) Waleed K. Almallah, (3) Carpet Factory Outlet-Northwest Freeway, Inc., (4) Carpet Factory Outlet-FM 1960 West, Inc., (5) Salam Investments Group, Inc., (6) Lexington Carpets, Inc., (7) Rasmi Almallah, (8) the Lexington Industry, Inc., and (9) Fla-neen Investments, Inc. For purposes of this opinion, we will refer to the appellees collectively as "the Carpet mills of America defendants.”


text:
    ARGYLE MECHANICAL, INC., Stephanie Crider, and Steve McDaniel, Appellants, v. UNIGUS STEEL, INC., Appellee.
    No. 05-04-00769-CV.
    Court of Appeals of Texas, Dallas.
    Feb. 25, 2005.

      Charles F. Holmans, III, Dallas, for appellants.
    David A. McDonald, Palmer Allen <& McTaggert, LLP, Dallas, for appellee.
    Before Justices MORRIS, WHITTINGTON, and O’NEILL.
   OPINION

Opinion by

Justice WHITTINGTON.

Argyle Mechanical, Inc., Stephanie Cri-der, and Steve McDaniel appeal a no-answer default judgment entered in favor of Unigus Steel, Inc. In three points of error, appellants claim the trial judge erred in failing to conduct a hearing on unliquidat-ed damages and awarding attorney’s fees and there is no evidence to support the award of unliquidated damages. Because we conclude the trial judge erred in awarding unliquidated damages, we affirm in part and reverse and remand in part.

BACKGROUND

Argyle is a general contractor in the construction business. Crider and McDaniel are officers of Argyle. Unigus entered into a contract with Argyle to provide labor and materials involved in the construction of a cooling tower support and access stairs at Parkland Hospital. After Argyle failed to pay all amounts due, Unigus sued Argyle for breach of contract, suit on sworn account, quantum meruit, and misapplication of trust funds, seeking $56,839, plus interest and attorney’s fees against Argyle. With respect to Crider and McDaniel, Unigus sued only for misapplication of trust funds. All issues on appeal involve damages and attorney’s fees arising from the misapplication of trust funds claim.

After appellants were served with citation and failed to file answers, Unigus obtained a default judgment. The trial judge did not conduct an evidentiary hearing prior to entry of the default judgment and later denied appellants’ motion for new trial.

Default Judgment

In their first point of error, appellants claim the trial judge erred in failing to conduct a hearing on unliquidated damages. In their second point of error, appellants contend there is no evidence to support the award of unliquidated damages. We agree with both claims.

When a default judgment is taken against non-answering defendants on an unliquidated claim, all allegations of fact contained in the petition are deemed admitted, except for the amount of damages. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992); Arenivar v. Providian Nat’l Bank, 23 S.W.3d 496, 497 (Tex.App.-Amarillo 2000, no pet.). When damages are unliquidated, the judge entering the default judgment must hear evidence on the damages. Tex.R. Civ. P. 243; Holt Atherton Indus., 835 S.W.2d at 83. The legal and factual sufficiency of evidentiary support for unliqui-dated damages may be challenged on appeal from a no-answer default judgment. Arenivar, 23 S.W.3d at 498; Dawson v. Briggs, 107 S.W.3d 739, 748 (Tex.App.-Fort Worth 2003, no pet.). If a no-evidence point is sustained as to unliquidated damages resulting from a no-answer default judgment, the appropriate disposition is to remand for a new trial on the issue of unliquidated damages. Holt Atherton Indus., 835 S.W.2d at 86; Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex.1984) (if appellate court sustains point of error, new trial should be limited to issue of damages because liability already established by default).

Construction payments are trust funds if the payments are made to a contractor or subcontractor or to an officer, director, or agent of a contractor or subcontractor under a construction contract for the improvement of specific real property in this state. Tex. PROp.Code ANN. § 162.001(a) (Vernon Supp.2004-05). A trustee misapplies trust funds if he, intentionally or knowingly or with intent to defraud, either directly or indirectly, retains, uses, disburses, or otherwise diverts trust funds without first paying all current or past due obligations incurred by the trustee to the beneficiaries of the trust funds. Tex. PROP. Code Ann. § 162.031(a) (Vernon 1987).

A legal sufficiency review requires that this Court consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). To determine whether there is evidence to support the damage award, we must first determine whether the damages arising from the misapplication of trust funds claim are liquidated or unliquidated. A claim is liquidated if the amount of damages may be accurately calculated by the trial judge from the factual as opposed to the conclusory allegations in the plaintiffs petition and the instrument in writing. Abcon Paving Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex.App.-Fort Worth 1991, no writ); Willacy County Appraisal Review Bd. v. S. Padre Land Co., 767 S.W.2d 201, 204 (Tex.App.-Corpus Christi 1989, no writ).

By failing to answer, appellants admitted the allegations in Unigus’s pleading. Arenivar, 23 S.W.3d at 498. However, Unigus’s own pleading raises questions about the amount of damages attributable to the misapplication of trust funds claim. In its original petition, Unigus states:

Upon information and belief, funds were received from the owner of the referenced property by Argyle as payment regarding the construction and/or improvement of the property and, under Sections 162.001 and 162.002 of the Tex. Prop.Code, such payments were trust funds regarding which Argyle is a trustee. Furthermore, to the extent Defendants ... Stephanie Crider and/or Steve McDaniel received these funds or had control or direction over such funds on behalf of Argyle, each such individual is also a trustee with Argyle over such funds.

Although appellants admitted by default the truth of the above allegations, Unigus did not plead or prove the amount of trust funds received by Argyle from Parkland Hospital. With respect to Crider and McDaniel, Unigus did not plead or produce evidence of the amount of trust funds they received or which came under their control or direction. Regarding damages specifically, Unigus pleaded only “that such acts have caused substantial harm to Unigus in excess of the minimum jurisdictional amounts of this Court.” Thus, the damages relating to Unigus’s misapplication of trust funds claim are unliquidated.

Because the damages are unliquidated, the trial judge was required to hear evidence in support of those damages. See Tex.R. Civ. P. 243. Because he did not do so, the trial judge erred. We sustain appellants’ first point of error. Furthermore, our review of the record shows there is no evidence to support the award of unliquidated damages. Because there is no evidence to support the damage award, we sustain appellants’ second point of error. In light of our disposition of these points, we need not address appellants’ third point of error, complaining of the award of attorney’s fees.

We reverse and remand the issues of damages and attorney’s fees relating to the misapplication of trust funds claim for new trial. See Holt Atherton Indus., 835 S.W.2d at 86 (“when an appellate court sustains a no evidence point after an uncontested hearing on unliquidated damages following a no-answer default judgment, the appropriate disposition is a remand for a new trial on the issue of unliquidated damages.”). In all other respects, we affirm the trial court’s judgment.

      . Unigus argues appellants waived any complaint regarding the lack of evidence to support unliquidated damages because this issue was not raised in the motion for new trial. In support of its argument, Unigus relies on Texas Rule of Civil Procedure 324(b), which states "a point in a motion for new trial is a prerequisite to the following complaints on appeal ... a complaint on which evidence must be heard such as ... failure to set aside a judgment by default.” Tex.R. Crv. P. 324(b). Appellants do not seek to set aside the default judgment or raise other grounds that would require evidence. Appellants challenge only the legal sufficiency of the evidence supporting damages. This is an issue to be resolved as a matter of law and does not require the presentation of evidence at a motion for new trial.


author: Justice RICHTER.

text:
    Calvin Ray BRATTON, Appellant v. The STATE of Texas, Appellee.
    Nos. 05-03-01773-CR, 05-03-01774-CR, 05-03-01775-CR.
    Court of Appeals of Texas, Dallas.
    Feb. 28, 2005.

      Gary A. Udashen, Sorrels & Udashen, Dallas, for Appellant.
    William T. (Bill) Hill, Jr., and Laura Anne Coats, Asst. Dist. Atty., Dallas, for State.
    Before Justices WRIGHT, RICHTER, and MAZZANT.
   OPINION

Opinion by

Justice RICHTER.

Calvin Ray Bratton appeals his convictions for the aggravated robberies of Raymond Velasco (appellate cause number 05-03-01773-CR), Anthony Sirmans (appellate cause number 05-03-01774-CR), and Michael Cox (appellate cause number 05-03-01775-CR). In three issues, Bratton argues the trial court erred in (a) admitting the written statements of two nontes-tifying accomplices in violation of Bratton’s right to confrontation and (b) submitting a jury instruction at the guilt-innocence phase containing language from the disapproved Geesa reasonable doubt definition. We affirm.

Background

Velasco, Sirmans, and Cox were walking toward their cars after leaving a bar in the lower Greenville area in the early morning hours of December 28, 2002 when they were approached by “four or five” hooded African-Americans. At least one of these hooded individuals robbed Velasco at gunpoint, another robbed Sir-mans, and a third robbed Cox, also at gunpoint. The robbers then fled, and Ve-lasco called 911. The police arrived and within minutes drove Velasco, Sirmans, and Cox to a location where five African-Americans were being held. These individuals had been seen speeding away in their car from the area where the robberies occurred and throwing a wallet and cards out the window before being stopped. Although one of the cards belonged to Velasco, none of the victims were able to identify these individuals as the robbers. However, three of these individuals, Luther Hargraves, Jason Ward, and Derrin Curl, subsequently gave voluntary written statements admitting to the robberies and implicating Bratton and Hargraves’s mother Shanda.

At trial, Velasco and Cox testified that because of the robbers’ hoods and the lighting where the robberies occurred, they were not able to identify any of the robbers. Van Johnson, a passerby who witnessed the robberies, also testified and acknowledged that he could not identify any of the robbers either.

Dallas police officer Genaro Hernandez testified he was working undercover in the area where the robberies occurred when he noticed a “suspicious” car parked on the wrong side of the street. The car was running but the lights were turned off, and it appeared to Hernandez that the driver was waiting for someone to return. Because of the suspicious nature of the ear, Hernandez decided to watch the car from a distance. Moments later, he saw the car, with several occupants, drive away at a high rate of speed. Hernandez radioed for back-up and began following the car. According to Hernandez, the driver ran several stop signs but stopped once uniformed officers in a marked squad car pulled the car over. Four men and a woman were in the car — Hargraves, Brat-ton, Curl, Ward, and Shanda. All cooperated but Bratton, who started running. Bratton was eventually caught, however, and arrested with the others. At the time, Bratton was not wearing a hooded jacket, although an officer did observe him “trying to get out of his clothes.”

Russell Taylor, the officer who pulled the car over, testified that he observed a wallet and cards being thrown out the window as he pulled up to the suspects’ car. According to Taylor, Shanda was driving, Bratton was in the front passenger seat, Curl was behind Shanda, Har-graves was in the middle back seat, and Ward was behind Bratton. Based on the seating arrangement, Taylor believed it was Ward who had thrown the items out the window. Taylor also testified that a search of the car revealed two stocking caps, three sets of cut pantyhose, and two firearms — one under the front passenger seat and the other under the driver’s seat.

Dallas police officer Rudy Contreras testified he obtained the statements from Hargraves, Curl, and Ward. Over objection, Curl’s and Ward’s statements were admitted into evidence and read to the jury. According to their statements, when they got out of the car to commit the robberies, Bratton got out with them. Although they suggested Bratton was with them when the robberies occurred, neither one mentioned how Bratton participated. Specifically, Curl stated,

I was at Shanda’s house sleeping. When I woke up, [Hargraves], [Bratton], and me were smoking weed. Then we went to get [Ward]. We stopped to get some gas. We went by the club, then we hit the lick. [Ward] had his gun. I had the .38. We saw the two white guys. Then we got out of the car. We all four jumped out of the car. We did the lick. I got the wallet and the cell phone. We went back to the car and burned off. I’m sorry for doing this. We shouldn’t have been there in the first place.

Ward’s statement provided a little more detail:

My girl told me that someone from Shanda’s house called looking for me, so I called them back. I asked to speak to Shanda. She said that they had been talking about getting some money. [Bratton], [Hargraves], and Curl were at Shanda’s house. They had been talking about hitting a lick. First we went to get some gas. Then we rode down Greenville. Shanda drove. [Bratton] was in the front seat. I was behind [Bratton], [Hargraves] was in the middle of the back seat. Curl was behind Shanda’s seat. [Bratton], [Hargraves], Curl and me got out of the car. We walked up to some white guys. Curl said, ‘Give me what you got.’ I saw Curl with a gun. I had the other gun in my pocket. We ran back to the car. I’m sorry for what happened. We weren’t out to hurt nobody. The pistols weren’t drawn. There were four of us and two of them. We were trying to bluff them. We were trying to scare them. We were just trying to get gas money, soap and tissue. We have only one bar of soap at the house, one roll of tissue. We’re just struggling man.

Contreras testified he also interviewed Bratton. Although Bratton admitted to him he had gotten out of the car with Hargraves, Curl, and Ward, Bratton denied any involvement or knowledge of the robberies. According to Contreras, Brat-ton explained he had gotten out so that he could “relieve himself’ and did not know what the other three did.

The State’s final witness, Hargraves, testified he had pleaded guilty to the robberies and received five years deferred adjudication. As part of the plea, he agreed to testify as a State witness in Bratton’s trial. Hargraves testified that two days before the robberies, he had heard Bratton saying he needed some money and wanted to “hit a lick.” Then, on the night of the robberies, he heard Shanda and Bratton talk about “hitting a lick” again. Although he admitted he was present when the robberies were committed, Hargraves denied playing an active role and testified that Bratton was “just ... standing like over on the side” when Curl and Ward pulled out their guns. Hargraves also testified that Bratton was not wearing a hooded jacket that night but did have on a “beanie cap.” On cross-examination, Hargraves stated that everyone in the car that night, including Bratton and Shanda, were involved in the robberies. Hargraves also stated he believed his probation might be revoked if he did not testily that Bratton was involved in the robberies.

Bratton did not testify and did not call any witnesses. He was prosecuted as a party to the ^aggravated robberies and found guilty as charged in the indictments.

Admissibility of Nontestifying Accomplices’ Statements Under Confrontation Clause

In his first two issues, Bratton asserts the court’s admission, over his objection, of Curl’s and Ward’s statements violated his right of confrontation under the Sixth Amendment of the United States Constitution. See U.S. Const, amend. VI. Relying primarily on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Bratton maintains that the statements were testimonial in nature and because neither Curl nor Ward were unavailable to testify and Bratton did not have a prior opportunity to cross-examine them, their statements were inadmissible. Brat-ton further maintains he was harmed by the admission of the statements. In response, the State argues that Crawford is inapplicable and, even if applicable, any error in the admission of the statements was harmless.

The Confrontation Clause of the Sixth Amendment of the United States Constitution, applicable to the States by virtue of the Fourteenth Amendment, guarantees that in all criminal prosecutions, an accused shall have the right “to be confronted with the witnesses against him.” U.S. CONST, amends. VI, XIV; Shelby v. State, 819 S.W.2d 544, 546 (1991). The primary interest secured by the Confrontation Clause is the right of cross-examination. Shelby, 819 S.W.2d at 546. This right is fundamental and applies not only to in-court testimony but also to out-of-court “testimonial” statements introduced at trial. Id.; Crawford, 124 S.Ct. at 1364-65. Although a comprehensive definition of “testimonial” statements has not been articulated, it applies at a minimum to police interrogations and prior testimony at a preliminary hearing, before a grand jury, or at a former trial. Crawford, 124 S.Ct. at 1374. Under the Confrontation Clause, testimonial evidence may be introduced at trial only when the declarant is unavailable and the accused has had a prior opportunity for cross-examination. Id.

In determining whether a court’s admission of a nontestifying accomplice’s statement violates the Confrontation Clause, we conduct an independent review of the record. Lilly v. Virginia, 527 U.S. 116, 136-37, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Brooks v. State, 132 S.W.3d 702, 705 (Tex.App.-Dallas 2004, pet. ref d). Because the admission of a nontestifying accomplice's statement in violation of the Confrontation Clause is constitutional error, we will affirm the conviction only if we determine beyond a reasonable doubt that the error did not contribute to the conviction. See Tex.R.App. P. 44.2(a); Brooks, 132 S.W.3d at 707-08. In making this determination, we do not focus on the propriety of the trial’s outcome but on calculating, as nearly as possible, the probable impact of the error on the jury in light of the other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App.2000). In other words, the question is not whether the legally admitted evidence is sufficient to support the conviction. McCarthy v. State, 65 S.W.3d 47, 55 (Tex.Crim.App.2001) (quoting Satterwhite v. Texas, 486 U.S. 249, 258-59, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988)). Rather, the question is whether the complained-of statement contributed to the jury’s verdict, regardless of the sufficiency of the evidence, independent of the statement, to sustain the conviction. Id. Asked in another way, the question is whether a reasonable probability exists that the error moved the jury from a state of nonpersuasion to one of persuasion as to the issue in question. Wesbrook, 29 S.W.3d at 119.

In this case, the State does not dispute Curl’s and Ward’s statements were testimonial in nature, as they were the result of police interrogation. The State maintains, however, that Crawford does not apply because Curl and Ward were “available, present, and could have been confronted” by Bratton. Indeed, the record reflects both Curl and Ward were present at trial. The record further reflects that both had pleaded guilty to the robberies. As such, they were not entitled to assert any Fifth Amendment privilege against self-incrimination and could have been called to testify. See Franco v. State, 491 S.W.2d 890, 890-91 (Tex.Crim.App.1973). Although the record does not reflect why neither the State nor Bratton called Curl and Ward to testify, the State argues that Bratton chose not to call them as a matter of trial strategy. And, because he chose not to call them as a matter of trial strategy, he cannot complain he was denied his right to confront them. However, the State provides no authority for this contention, and we find nothing in Crawford or elsewhere suggesting that a defendant waives his right to confront a witness whose testimonial statement was admitted into evidence by failing to call him as a witness at trial. See Tex.R.App. P. 38.1(h); see also State v. Cox, 876 So.2d 932 (La.Ct.App.2004) (specifically rejecting this argument and noting that if State needed to have witness’s testimonial statement admitted into evidence, State could have called witness to testify). In fact, as the party seeking to admit Curl’s and Ward’s statements, it was the State’s burden to show their statements were admissible, that is, that Curl and Ward were unavailable and that Bratton had been afforded a prior opportunity to cross-examine them. See Crawford, 124 S.Ct. at 1374; Snowden v. State, 156 Md.App. 139, 846 A.2d 36, 47 n. 31 (2004) (State did not satisfy Crawford foundational requirements where it failed to show declarant of testimonial hearsay unavailable to testify), affd, 385 Md. 64, 867 A.2d 314 (2005); see also Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App.1994) (op. on reh’g) (proponent of statement against penal interest bears burden of showing its admissibility); Meador v. State, 812 S.W.2d 330, 333 (Tex.Crim.App.1991) (same — co-conspirator’s statement). By the State’s own admission though, Curl and Ward were available to testify, and nothing in the record suggests, nor does the State contend, that Bratton was afforded a prior opportunity to cross-examine them. As such, the statements were inadmissible, and the trial court erred in not excluding them. See Crawford, 124 S.Ct. at 1364-65.

Having concluded the trial court erred in not excluding Curl’s and Ward’s statements, we now turn to whether Brat-ton was harmed. As stated, Bratton was prosecuted as a party to the aggravated robberies, which required the State to prove that, acting with intent to promote or assist the commission of the offenses, Bratton solicited, encouraged, directed, aided, or attempted to aid Hargraves, Curl, or Ward. See Tex. Pen.Code .Ann. § 7.02(a)(2) (Vernon 2003). In arguing that any error in the admission of Curl’s and Ward’s statements was harmless, the State notes that Hargraves testified Brat-ton had stated he wanted “to hit a lick,” got out of the car with Curl and Ward, who had guns, and walked with them to where the robberies were committed. Additionally, the record shows Velasco, Sir-mans, and Cox were approached by “four or five” men, at least three of whom robbed them. ' The State argues this shows the men were working together. The State also relies on the officers’ testimony concerning the flight from the scene of the robbery, the resulting chase of Brat-ton after the car was stopped, and Brat-ton’s attempt to remove his clothing. The State maintains this evidence overwhelmingly supports Bratton’s involvement.

Of course, our question is not whether the legally admitted evidence is sufficient to support the conviction. McCarthy, 65 S.W.3d at 55 (quoting Satterwhite, 486 U.S. at 258-59, 108 S.Ct. 1792). Rather, we must determine whether the admission of Curl’s and Ward’s statements moved the jury from a state of nonpersuasion to one of persuasion. Id. Aside from the inadmissible statements, the State’s evidence consisted of the testimony of the victims, the officers, and Hargraves. Of this evidence, Hargraves’s testimony provided the State’s most direct proof of Brat-ton’s involvement. His testimony was subject to scrutiny and challenged in front of the jury. Although Curl’s and Ward’s statements constituted unchallenged substantive evidence implicating Bratton in the robberies, their statements provided little, if any, additional evidence concerning Bratton’s actual involvement. Their statements, like Hargraves’s testimony, revealed an intent on Bratton’s part to commit a robbery and also his presence at the time of the robberies. However, the statements did not disclose any specific acts Bratton might have committed during the robberies, and thus, did not add to the State’s proof. Although the statements could have added credibility to Har-graves’s testimony, other evidence separately corroborated Hargraves’s testimony. For example, the victims’ testimony that they were approached and robbed by “four or five” men, at least two of whom had guns, corroborated Hargraves’s testimony that Bratton was present during and involved in the robberies. See Brooks v. State, 580 S.W.2d 825, 881 (Tex.Crim.App. [Panel Op.] 1979) (to convict someone as a party to offense, evidence must show parties were acting together at time of offense). Additionally, the officers’ testimony that (a) Bratton was in the car that was seen speeding away from the area where the robberies occurred, from which a wallet and cards were being discarded, and in which two stocking caps, three sets of cut pantyhose, and two firearms were found, along with (b) Bratton’s uncooperativeness, fleeing from the officers, and trying to remove his clothes corroborated Har-graves’s testimony that Bratton knew of the robberies and was a “part of them.” See Valdez v. State, 623 S.W.2d 317, 321 (Tex.Crim.App.1979) (op. on reh’g) (presence at scene of crime and flight from scene of crime are circumstances tending to show guilt). Given the record before us, we conclude beyond a reasonable doubt that the admission of Curl’s and Ward’s statements did not contribute to Bratton’s convictions. Compare Mendez v. State, 56 S.W.3d 880, 893 (Tex.App.-Austin 2001, pet. ref'd) (admission of nontestifying accomplice’s statement harmful where statement only evidence showing appellant planned murders, provided weapons, entered victim’s home, and fired gun) and Brooks, 132 S.W.3d at 708-11 (admission of nontestifying accomplice’s statement harmful where statement only direct proof showing appellant’s culpable mental state and active participation as party prior to and during offense) with Wall v. State, 143 S.W.3d 846, 851-52 (Tex.App.-Corpus Christi 2004, no pet.) (admission of nontes-tifying witness’s statement harmless where statement cumulative of other evidence). We resolve Bratton’s first and second issues against him.

“Reasonable Doubt” Definition

In his third issue, Bratton complains the trial court erred by improperly instructing the jury during the guilt-innocence phase of trial. Specifically, Bratton complains the trial court erred in overruling his objection to the court’s instruction that “[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s guilt.” Relying on Phillips v. State, 72 S.W.3d 719, 721 (Tex.App.-Waco 2002, no pet.), Bratton maintains this instruction violates the holding in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App.2000), that “the better practice is to give no definition of reasonable doubt at all to the jury.” However, as the State points out, we specifically, disagreed with Phillips in O’Canas v. State, 140 S.W.3d 695, 701-02 (Tex.App.-Dallas 2003, pet. ref'd), and concluded this instruction did not define reasonable doubt but “simply state[d] the legally correct proposition that the prosecution’s burden is to establish proof beyond a reasonable doubt and not all possible doubt.” Having already rejected the precise argument made here by Bratton, we resolve Bratton’s third issue against him.

We affirm the trial court’s judgments.

      . See Geesa v. State, 820 S.W.2d 154, 162 (Tex.Crim.App.1991), overruled in part by Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim.App.2000).

      . Sirmans did not testify at trial. According to the record, he had an out-of-town “business meeting he could not miss.”

      . Hargraves’s statement was not offered into evidence and is not a part of the record on appeal.

      . Crawford, was decided while the instant appeals were pending.