author: KEASLER, J., JOHNSON, J.,

text:
    Enrique LOPEZ, Appellant, v. The STATE of Texas.
    No. 132-99.
    Court of Criminal Appeals of Texas.
    May 17, 2000.

      Robert A. McGlohon, Jr., San Antonio, for appellant.
    Edward F. Shaughnessy, III, Asst. Dist. Atty., San Antonio, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court,

which McCORMICK, P.J., and MEYERS, MANSFIELD, KELLER, PRICE, HOLLAND, and WOMACK, J.J., joined.

The court of appeals affirmed Enrique Lopez’s conviction but remanded the case to the trial court because of error in the punishment phase of trial. After sentence was pronounced on remand, Lopez filed a motion for new trial alleging error at the guilt-innocence phase of his first trial. We must decide whether the trial court had jurisdiction to consider this motion. We conclude that it did not.

Procedural History

Lopez was initially convicted of attempted capital murder and sentenced to 50 years in prison. The court of appeals held that the trial court erred in allowing an unqualified reputation witness to testify at the punishment phase of trial, and concluded that the error harmed Lopez. The court of appeals reversed the punishment verdict and remanded the case for a new punishment hearing. On remand, Lopez was sentenced to life in prison. He again appealed, and this time the court of appeals held the trial court erred in admitting evidence of an extraneous offense, and the error harmed Lopez. The court again remanded for a new punishment hearing.

On second remand, Lopez was sentenced to 99 years in prison. Within BO days of this sentence, Lopez filed a motion for new trial claiming, among other things, that he received ineffective assistance of counsel at the guilt/innocence phase of his first trial and he received ineffective assistance of counsel on his first appeal for counsel’s failure to adequately brief the claim regarding trial counsel’s ineffectiveness. The trial court denied the motion.

Lopez appealed, arguing that the trial court erred in denying the motion for new trial because he had demonstrated that he had been denied effective assistance of counsel at the guilt/innocence phase of his original trial and on his first appeal. The court of appeals overruled Lopez’s points of error, relying in part on Davila v. State and Easton v. State. In those cases, the courts of appeals held that upon remand for punishment only, a trial court has no power to grant a new trial based on errors allegedly occurring at the guilt/innocence phase. We granted Lopez’s petition for discretionary review, which asks whether a trial court has jurisdiction to consider a motion for new trial when a case is remanded for punishment only.

Analysis

A timely filed notice of appeal vests a court of appeals with jurisdiction over the case. Once the court of appeals obtains jurisdiction, the trial court loses jurisdiction. The trial court cannot thereafter regain jurisdiction unless the court of appeals returns the case to that court.

The Rules of Appellate Procedure permit a court of appeals to remand a case on punishment only. When it does so, it is essentially affirming the conviction on guiltyinnocence and reversing the conviction on punishment. In such a case, we conclude the trial court’s jurisdiction on remand is limited to issues concerning the punishment phase.

In this case, the court of appeals remanded the case to the trial court for punishment only. By doing so, it affirmed the guilt-innocence portion of the trial. As a result, the trial court no longer had any jurisdiction over that portion of the trial, and had no jurisdiction to consider Lopez’s motion for new trial concerning the guilt-innocence portion of the trial.

Lopez argues that the language of Art. 44.29(b) requires the opposite result. That statute provides, in pertinent part, as follows:

If the court of appeals or the Court of Criminal Appeals awards a new trial to a defendant ... only on the basis of an error or errors made in the punishment stage of the trial, the cause shall stand as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of the trial ...

According to Lopez, when the court of appeals remanded his case on punishment, the cause stood “as it would have stood in case the new trial had been granted by the court below, except that the court shall commence the new trial as if a finding of guilt had been returned and proceed to the punishment stage of trial.” Lopez explains that once the case proceeded to the punishment stage and the trial court assessed sentence, the Rules of Appellate Procedure came into play. Those Rules, Lopez argues, provide that a motion for new trial may be filed within 30 days from the date the trial court imposes sentence. So according to Lopez, once sentence was pronounced on remand, he was entitled under the Rules of Appellate Procedure to file a motion for new trial alleging error at guilt/innocence.

But Lopez’s argument defeats itself. If the language of Art. 44.29 is to be construed literally, then the case is placed back in the position it would have stood “in case the new trial had been granted by the court below.” So we would have to suppose that the trial court has already granted a motion for new trial, but the court commences that new trial as if a finding of guilt had already been returned. In such a case, there is no reason for a defendant to file another motion for new trial based upon the events occurring at his first trial. Once the initial motion for new trial is granted, any subsequent motion for new trial based on the same events would be superfluous.

In addition, Lopez’s theory would render Art. 44.29 meaningless. That is, the statute was enacted in order to give an appellate court the authority to remand a case on punishment only. If, after remand, the trial court has the authority to reconsider issues from the guilt-innocence portion of the trial, the appellate court’s remand “on punishment only” is rendered meaningless. We believe that to give effect to Art. 44.29(b), a remand on punishment only must limit a trial court’s jurisdiction to only punishment issues.

Finally, when the Legislature granted this Court rule-making authority, it expressly provided that the rules could not abridge, enlarge, or modify the substantive rights of a litigant. Lopez would use a rule of appellate procedure, Rule 21.4, to enlarge upon the substantive rights of a litigant provided by the Legislature in Art. 44.29. This we cannot do.

Conclusion

We conclude that when a court of appeals remands a case to the trial court on punishment only, the trial court’s jurisdiction on remand is limited to punishment issues. The trial court has no jurisdiction at that point to entertain a motion for new trial which complains of error occurring at the guilt-innocence phase of the trial.

We affirm the decision of the court of appeals.

JOHNSON, J., delivered a concurring opinion.

JOHNSON, J.,

filed a concurring opinion.

I concur in the judgment of the court.

In 1991, appellant was tried for and convicted of attempted capital murder. He appealed that conviction, complaining of jury charge error, improper jury argument, the denial of his right to voir dire a reputation witness, and ineffective assistance of counsel. Lopez v. State, 860 S.W.2d 938, 940 (Tex.App.—San Antonio 1993, no pet.)(Lopez I). In 1993, the court of appeals considered all grounds, but found for appellant only on the denial of voir dire, which occurred at the punishment hearing. The court of appeals thus reversed only as to punishment and remanded for a new punishment hearing only. Id. at 944-46.

Appellant was retried as to punishment only in November, 1994. After appellant’s appeal of the second punishment hearing, the court of appeals again reversed and ordered a third punishment hearing. Lopez v. State, No. 04-94-00855-CR, 1996 WL 195419 (Tex.App.—San Antonio, Apr. 24, 1996, no pet.)(not designated for publication)(Lopez II).

Prior to the third punishment hearing on January 17, 1997, appellant filed a motion for new trial, claiming ineffective assistance of counsel during the original trial in 1991. After a hearing, the trial court denied the motion. The trial court imposed sentence in open court on January 23, 1997. Thereafter, on February 24, 1997, appellant filed a post-trial motion for new trial on the same ground and added a complaint of ineffective assistance against his first appellate counsel for fading to “preserve a point of error on appeal.” That motion was timely filed, as February 23 fell on Sunday. Tex.R.App. P. 4.1. The trial court denied the motion without a hearing.

In his appeal of the third punishment hearing, appellant asserted that the trial court erred in (1) denying the motion for new trial based on ineffective assistance of counsel during the original trial; (2) denying the motion for new trial based on ineffective assistance of counsel on appeal from the original trial; and (3) refusing to conduct a hearing on the motion for new trial based on ineffective assistance of counsel on appeal from the original trial. Lopez v. State, No. 04-97-00319-CR, 1998 WL 741588 (Tex.App.—San Antonio, Oct. 21, 1998)(not designated for publication)(Lopez III). The court of appeals affirmed the trial court, stating that the court of appeals is “iimited to reviewing error that allegedly occurred during the punishment retrial.” Id. Because none of appellant’s complaints involved the third punishment hearing, the court of appeals declined to address those complaints and pointed out that the proper remedy is a post-conviction writ of habeas corpus. Id. This appeal followed.

Appellant had the opportunity to raise all of his complaints about the original trial in Lopez I. Any issues from guilt/innocence which were not raised in Lopez I were waived. Any complaints about ineffective assistance of counsel on appeal from the original trial could and should have been raised in Lopez II. As they were not, they also have been waived. The Court of Appeals was correct in its assessment of the limits on its authority and in its statement of proper remedy.

      . Lopez v. State, 860 S.W.2d 938, 944-45 (Tex.App.—San Antonio 1993, no pet.).

      . Id. at 947.

      . Lopez v. State, No. 04-94-00855-CR, 1996 WL 195419 (Tex.App.—San Antonio 1996, no pet.) (not designated for publication).

      . Ibid.

      . Lopez v. State, No. 04-97-00319-CR, 1998 WL 741588 (Tex.App.—San Antonio 1998) (not designated for publication).

      . 961 S.W.2d 610 (Tex.App.—San Antonio 1997, no pet.).

      . 920 S.W.2d 747 (Tex.App.—Houston [1 st Dist.] 1996, no pet.).

      . State v. Riewe, 13 S.W.3d 408 (Tex.Crim.App. 2000); Olivo v. State, 918 S.W.2d 519, 522 (Tex.Crim.App.1996).

      . Green v. State, 906 S.W.2d 937, 939 (Tex.Crim.App.1995).

      . See Green, 906 S.W.2d at 940 n. 4 (by abating the appeal, jurisdiction may be properly returned to the trial court), citing Duncan v. Evans, 653 S.W.2d 38, 40 (Tex.Crim.App.1983); see also Adkins v. State, 764 S.W.2d 782, 784 (Tex.Crim.App.1988) (remanding case to court of appeals restores jurisdiction to that court); Garrett v. State, 749 S.W.2d 784, 786-87 (Tex.Crim.App.1986) (same).

      . TexR.App. Pro. 43.2.

      . Tex.R.App. Pro. 21.4(a).

      . See Rent v. State, 982 S.W.2d 382, 385 (Tex.Crim.App.1998).

      . Lyon v. State, 872 S.W.2d 732, 735 (Tex.Crim.App.1994); TEX. GOV’T CODE § 22.108(a).

      . The trial court was correct in denying the pretrial motion for new trial; none of appellant's complaints fit within the statutory requirements of TexCode Crim. P. art. 40.001(newly discovered material evidence) or Tex.R.App. P. 21.3.

      . Counsel in the original trial were not counsel on appeal in Lopez I.

      . It appears that the original appellate counsel failed to properly brief the complaint of ineffective assistance of counsel at the original trial. This failure is now alleged as ineffective assistance on appeal.

      .The trial court was also correct in denying the post-trial motion for new trial under Tex. Code Crim. P. art. 40.001, Tex.R.App. P. 21.3., and lack of jurisdiction over counsel on appeal.


source: Caselaw Access Project

author: MEYERS, J.,

license: Public Domain

text:
    Jeffrey Lee WOOD, Appellant, v. The STATE of Texas.
    No. 73,102.
    Court of Criminal Appeals of Texas.
    May 24, 2000.

      Harold J. Danford, Kerrville, for appellant.
    E. Bruce Curry, Dist. Atty., Lucy Cava-zos, Asst. Dist. Atty., Kerrville, for the State.
   OPINION

MEYERS, J.,

delivered the unanimous opinion of the Court.

Appellant was convicted of capital murder on March 2, 1998, for committing minder in the course of robbery. Tex. Penal Code Ann. § 19.03(a)(2). Pursuant to the jury’s answers to the special issues set forth in Texas Code of Criminal Procedure article 37.071 §§ 2(b) and 2(e), the trial judge sentenced appellant to death. Art. 37.071 § 2(g). Direct appeal to this Court is automatic. Art. 37.071 § 2(h). Appellant raises ten points of error. We affirm.

In his first two points of error, appellant challenges the admission of his confession. In his first point of error, appellant argues that the trial court should have suppressed his oral statements because police refused his request for counsel. In his second point of error, appellant contends his confessions were involuntary because he was intoxicated and tired and therefore did not know the consequences of waiving his rights.

At the suppression hearing, the State introduced transcriptions of appellant’s two audio-taped confessions given on January 2 nd and 3rd, 1996. Appellant can be heal’d stating on each tape that he understood and voluntarily waived his right to counsel. Although appellant testified at the hearing that he requested counsel from several officers before he gave these statements, all five officers involved with appellant’s arrest and interrogation testified to the contrary. When asked on cross-examination why he did not state on the tapes that he had previously requested counsel, appellant replied that he had been awake for two to four days and had been drinking. The two interrogating officers testified, however, that appellant appeared “wide awake” — not tired or intoxicated.

At a hearing on appellant’s motion to suppress evidence, the trial court is the sole judge of the weight and credibility of the evidence, and the trial court’s finding may not be disturbed on appeal absent a clear abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990). In reviewing the trial court’s decision, we view the evidence in the light most favorable to the trial court’s ruling. See Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).

After hearing the testimony and reviewing appellant’s statements, the trial court found that, on each occasion, the interrogating officers apprised appellant of his right to counsel and that appellant voluntarily waived this right. The trial court also found that appellant was neither sleep-deprived nor under the influence of drugs or alcohol at the time of either statement. The trial court’s findings are supported by the testimony of the officers. The trial court did not abuse its discretion in denying appellant’s motion to suppress. See Dewberry v. State, 4 S.W.3d 735, 748 (Tex.Crim.App.1999), cert. denied, — U.S. —, 120 S.Ct. 2008, — L.Ed.2d — (2000). Appellant’s first and second points of error are overruled.

In his third point of error, appellant claims the trial court erroneously admitted hearsay testimony as to the contents of an unauthenticated videotape.

The evidence showed that appellant and Daniel Reneau, appellant’s co-defendant, robbed a Texaco station and stole the safe, the surveillance VCR, and other items. During the course of the robbery, Reneau shot the victim. Appellant and Reneau fled to appellant’s parents’ home in Devine, Texas, where they attempted to open the safe with a sledge hammer and blow torch. Appellant’s sixteen-year-old brother, Jonathan Wood, asked how they had obtained the safe, and appellant explained that they had robbed the service station and killed the attendant. When Jonathan expressed his disbelief that they had committed murder, appellant played the surveillance video showing Reneau shoot the victim. Then, pursuant to appellant’s instructions, Jonathan destroyed the video with a blow torch.

Over appellant’s objection that the State had not laid the proper predicate, Jonathan testified at trial concerning the contents of the tape:

Daniel walked into the store with a small pistol — well, fairly large, but he walked in and he pointed the gun at the dude and said something. It was blurry. I couldn’t understand it, and the next thing I know was a shot and that the dude fell out of sight and he went around the back and then [appellant] was out by ¿he truck when the shot went off, but thén he walked by the door ... and looked through the glass and then he went in and he looked over the counter and after that he went back, too, and he just cut it off.

Appellant argues that the State failed to properly authenticate the tape because Jonathan had no personal knowledge of where or when the tape was made. He further avers that “it was impossible for the state to demonstrate that the video resulted from a reliable process or system in accordance with Texas Rules of Evidence 901(b)(9).”

Texas Rule of Criminal Evidence 901 provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” See Angleton v. State, 971 S.W.2d 65, 67-68 (Tex.Crim.App.1998). Rule 901(b) provides illustrations of authentication complying with the rule. For instance, testimony by a witness with knowledge that the matter is what it is claimed to be is an acceptable method of authentication. Tex.R.Crim. Evid. 901(b)(1). Also, the matter in question may be authenticated by its “[ajppearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.” Tex. R-Cbim. Evid. 901(b)(4). Although generally the original recording is required to prove the content of a video tape, see Tex.R.CRIm. Evid.1002, “other evidence of the contents of a ... recording ... is admissible if [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” Tex. R.Crim. Evid. 1004(1).

Jonathan testified that he destroyed the tape with a blow torch; accordingly, the State was authorized to prove its contents through “other evidence.” See Tex.R.CRIm. Evid. 1004. Jonathan, who was familiar both with appellant and Reneau, identified them on the tape and possessed sufficient knowledge to testify to the tape’s contents. See Tex. R.Crim. Evid. 901(b)(1) and (4). Moreover, the circumstances surrounding Jonathan’s viewing of the tape — ie, that appellant played the tape for him to prove that they had committed murder during the course of stealing the safe — serve to authenticate its contents. See Tex.R.Crim. Evid. 901(b)(4). The State’s method of authentication satisfied the requirements of Rules 901 and 1004 in this case. The trial court did not abuse its discretion in admitting Jonathan’s testimony describing what he had viewed on the tape. See Angleton, 971 S.W.2d at 67. Point of error three is overruled.

In his fourth point of error, appellant alleges the trial court erroneously denied his motion for mistrial asserted during the second competency hearing. Specifically, he complains that he had subpoenaed the State’s expert, Dr. John Quinn, to produce “all information of any nature whatsoever relating to appellant,” but that Quinn failed to bring his “raw testing data” to the competency hearing. Appellant claims the raw data was “crucial” to appellant’s ability to cross-examine Quinn and to a determination of an explanation for the differing conclusions of the State’s and the defense’s experts.

At the competency hearing, Quinn explained that he had never seen the subpoena because it went directly to the records department at Vernon State Hospital. Quinn testified that he tendered to appellant his entire file, with the exclusion of raw data per hospital policy. Quinn further explained that he could not have released the raw data unless the subpoena had included an explicit request for “raw data.” Appellant requested a mistrial and asked that the case be reset to allow him an opportunity to obtain the raw data.

Mistrial is a remedy appropriate for a narrow class of highly prejudicial and incurable errors:

A mistrial is a device used to halt trial proceedings when error is so prejudicial that expenditure of further time and expense would be wasteful and futile. Thus, a trial court may properly exercise its discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error. Sewell v. State, 696 S.W.2d 559, 560 (Tex.Crim.App.1983). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Hernandez v. State, 805 S.W.2d 409, 413-414 (Tex.Crim.App.1990), cert. denied, 500 U.S. 960, 111 S.Ct. 2275, 114 L.Ed.2d 726 (1991). The asking of an improper question will seldom call for a mistrial, because, in most cases, any harm can be cured by an instruction to disregard. Ibid. A mistrial is required only when the improper question is clearly prejudicial to the defendant and is 'of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Ibid. A trial court’s denial of a mistrial is reviewed under an abuse of discretion standard.

Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App.1999), cert. denied, — U.S. —, 120 S.Ct. 1680, 146 L.Ed.2d 487 (2000). Assuming”raw data” was covered by appellant’s subpoena and should have been produced, mistrial would have been an inappropriate remedy in these circumstances. Appellant made no showing that the material was unobtainable. Neither did he request a continuance to allow Quinn an opportunity to obtain the material, a much less drastic remedy. The trial court did not abuse its discretion in denying appellant’s motion for a mistrial. See Sosa v. State, 769 S.W.2d 909, 912-13 (Tex.Crim.App.l989)(where appellant did not receive copy of State’s expert’s report on competency, but appellant did not request continuance to further prepare for cross-examination of, mistrial motion was properly denied and appellant not harmed or prejudiced). Point of error four is overruled.

In his fifth point of error appellant argues that the punishment-phase special issue required by Article 37.071 § 2(b)(2) is unconstitutional because it permits the jury to impose the death penalty without regard to whether appellant acted deliberately. Without further argument, appellant cites the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Article I §§ 10, 13, and 19 of the Texas Constitution, and Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) as support for this contention.

We have decided this issue adversely to appellant. In McFarland v. State, we held the anti-parties special issue constitutional because it specifically instructs the jury to consider the defendant’s behavior alone. 928 S.W.2d 482, 516-17 (Tex.Crim.App.1996)(quoting Article 37.071 § 2(b)(2) (“the defendant himself’)), cert. denied, 519 U.S. 1119, 117 S.Ct. 966, 136 L.Ed.2d 851 (1997). Appellant presents no argument compelling us to revisit McFarland. Point of error five is overruled.

In his sixth point of error, appellant claims the trial court should have granted his motion to set aside the indictment “because the Texas death penalty statute does not provide any meaningful appellate review regarding mitigation.” We decided this issue adversely to appellant in McFarland, 928 S.W.2d at 498-99, where we explained that “we cannot meaningfully review the jury’s normative decision on mitigation,” because the mitigation issue is specifically designed to take into account the jurors’ individual assessments of a capital defendant’s deathworthiness. Appellant’s sixth point of error is overruled.

In his seventh point of error, appellant contends the trial court erroneously denied his motion to require the State to exercise its strikes, both peremptory and for cause, before appellant’s strikes. We recently recognized that a trial court may allow the method urged by appellant, but has discretion in this regard:

A trial judge [presiding over voir dire in a capital case] has the discretion to decide (1) whether the State must voice both a challenge for cause or a peremptory challenge before the defendant, or (2) that both sides issue any challenges for cause before the State lodges a peremptory challenge.... Either method ... is acceptable under Article 35.13, and no error can result if either is followed.

Hughes v. State, No.73,129 slip op. at 9, 2000 WL 368930 (Tex.Crim.App. April 12, 2000) (citing Bigby v. State, 892 S.W.2d 864, 881 (Tex.Crim.App.1994) (plurality opinion), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617, 132 L.Ed.2d 860 (1995)). The trial court did not abuse its discretion in overruling appellant’s motion and requiring that both sides issue challenges for cause prior to the State’s use of a peremptory challenge. Hughes, supra. Point of error seven is overruled.

In his eighth point of error, appellant claims the trial court erroneously permitted the State’s expert witness, Dr. James Grigson, to testify because the State untimely disclosed its intention to call Grig-son. The court’s discovery order required the State to disclose all witnesses ten days before voir dire commenced. The State announced it would call Grigson four days after voir dire concluded.

We review the trial court’s decision to permit Grigson’s testimony under an abuse of discretion standard. Nobles v. State, 843 S.W.2d 503, 514 (Tex.Crim.App.1992), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). “If the trial judge allows a witness to testify who does not appear on the State’s witness fist, we consider whether the prosecutor’s actions constitute “bad faith” and whether the defendant could have reasonably anticipated the witness’ testimony.” Martinez v. State, 867 S.W.2d 30, 39 (Tex.Crim.App.1993), cert. denied, 512 U.S. 1246, 114 S.Ct. 2765, 129 L.Ed.2d 879 (1994).

The State informed appellant as soon as it anticipated calling Grigson as a witness. At the beginning of the guilt/innocence phase, the trial court conducted a hearing on appellant’s motion for continuance. Appellant’s trial counsel, Scott Monroe, testified that the prosecutor, Lucy Cavazos, announced on the first day of individual voir dire the possibility that the State might call Grigson to testify at the punishment phase. Monroe spoke with Grigson on the telephone later that week, and Grigson confirmed that the State had contacted him but that he was still unsure whether he would testify. After meeting with Grigson on the following day, Cavazos called Monroe from Dallas to inform the defense that she had decided to call Grigson. Monroe testified that, although Grigson’s name had not appeared on the witness fist, the State’s disclosure provided him with three weeks notice that Grigson might testify. We conclude the State did not act in bad faith.

In addition, appellant could have reasonably anticipated Grigson’s testimony in light of the State’s announcement on the first day of the individual voir dire that it might call Grigson to testify at punishment. See Martinez, supra (defendant could have reasonably anticipated State’s witness “in light of the widespread use of [expert] testimony [on the second punishment issue], coupled with the prosecutor’s statements regarding his desire to present this type of testimony”).

Appellant also complains the trial court abused its discretion in fading to grant his motion for a continuance to allow additional time to prepare for cross-examination of Grigson. The trial court did grant appellant additional days to prepare:

... as far as the motion for continuance, in the event [appellant] is found guilty of capital murder, if that is Tuesday, Wednesday or Thursday, whenever that is this week, I’m going to recess and start the punishment phase, if we get there, on Monday morning, to give defense counsel perhaps a couple of days at the end of the week and weekend to focus on those punishment issues, but I don’t feel comfortable going past that.

The record reflects that the guilt/innocence phase concluded on Wednesday, February 25 and the punishment phase began on Monday, March 2. Therefore, appellant had two weekdays and a weekend to prepare for Grigson’s testimony. Appellant’s motion did not specify the number of days requested for the continuance and appellant did not object to the trial court’s ruling. Appellant’s eighth point of error is overruled.

In his ninth point of error, appellant claims the reasonable-firmness standard applicable to the defense of duress under section 8.05 of the Texas Penal Code is unconstitutional as applied to him because appellant is not and never will be “a person of reasonable firmness.” Appellant argues that because he could never avail himself of the duress defense, he was denied equal protection of the laws.

The party challenging a statute on equal protection grounds bears the burden of showing that the statutory classification is not rationally related to a legitimate state interest, where interests other than fundamental rights or suspect classification are affected. Smith v. State, 898 S.W.2d 838, 847 (Tex.Crim.App.)(plurality opinion), cert. denied, 516 U.S. 843, 116 S.Ct. 131, 133 L.Ed.2d 80 (1995); see also Broxton v. State, 909 S.W.2d 912, 918-19 (Tex.Crim.App.l995)(adopting reasoning of plurality opinion in Smith on equal protection claim); FCC v. Beach Communications, Inc., 508 U.S. 307, 815, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (on rational-basis review, “those attacking the rationality of the legislative classification have the burden ‘to negative every conceivable basis which might support it’ ”). Appellant cites no authority supporting his argument that the application of section 8.05 to persons who are not of reasonable firmness violates equal protection. Neither does appellant develop his argument. He does not allege that such persons are a suspect class, subject to heightened scrutiny, or allege, if not a suspect class, why section 8.05 does not meet the rational basis test. Appellant has not met his burden of showing that he has been denied equal protection under the law. Point of error nine is overruled.

In his tenth point of error, appellant claims the trial court erroneously restricted the testimony of two defense witnesses relating statements made by appellant concerning the offense.

The court held a hearing on the State’s motion in limine to determine whether a hearsay exception applied to the defense witnesses’ testimony. At the hearing, Nadia Mireless, appellant’s former girlfriend and mother of his child, testified that about an hour before the murder, “[appellant] had told [Reneau] to leave all the guns at home. [Appellant] had told [Reneau] to leave all the guns there, that they were just going to take Joe’s truck back, that they weren’t going to go through with it.” Appellant argues that this statement was admissible under the statement-against-penal-interest and present-sense-impression exceptions to the hearsay rule.

Texas Rule of Criminal Evidence 803(24) defines a statement against interest as “a statement which ... at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable man in his position would not have made the statement unless he believed it to be true.” This exception does not apply to Mireless’ testimony which tends to absolve appellant of criminal responsibility. See Hafdahl v. State, 805 S.W.2d 396 (Tex.Crim.App.1990) (defendant’s statement that he did not know the victim was a police officer until after he shot him was inadmissible hearsay), cert. denied, 500 U.S. 948, 111 S.Ct. 2250, 114 L.Ed.2d 491 (1991). As such, the selfserving nature of appellant’s statement that he did not want to participate in the offense outweighs the minor inculpatory significance of the statement. Cf. State v. Arnold, 778 S.W.2d 68, 69 (Tex.1989) (noting that when assessing statement against interest under Texas Rule of Civil Evidence 803(24), court must balance declar-ant’s competing self-serving and contrary interests “to determine their predominant nature and ultimately the level of trustworthiness to be accorded”).

Nor is the statement a present-sense impression. Texas Rule of Criminal Evidence 803(1) defines present-sense impression as “a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Appellant has indicated neither to the trial court nor to this Court what event or condition he was perceiving when he allegedly told Reneau to leave the guns at home. Accordingly, he fails to demonstrate how the trial court’s refusal to admit the statement on this basis was an abuse of discretion. Cf. Rabbani v. State, 847 S.W.2d 555, 560 (Tex.Crim.App.1992) (statement that declarant saw defendant outside was admissible under 803(1) because the statement explained an event or condition), cert. denied, 509 U.S. 926, 113 S.Ct. 3047, 125 L.Ed.2d 731 (1993).

Appellant also argues the trial court should have admitted the statement of Linette Esensee, who was staying at appellant’s and Reneau’s house on the night of the murder. She testified at the in limine hearing that, when appellant and Reneau returned from the robbery, appellant stated that “[Reneau] had threatened to kill [appellant’s child] and [Mireless] if he didn’t go along with it.” Appellant says this statement is admissible as either a statement against interest, because appellant admitted his involvement in the crime, or as an excited utterance because he was “still under the stress, excitement and shock of the crime he had committed.”

Like the first statement, this statement tends more to exonerate than to inculpate appellant of criminal liability. Appellant clearly sought admission of this statement to support his duress defense, which if believed, would have entitled him to an acquittal. See Tex. Penal Code § 8.05. Thus, it falls outside the statement-against-interest exception.

Also, Esensee never indicated that appellant appeared excited or nervous when he allegedly told her that Reneau had threatened him. A hearsay statement is admissible as an excited utterance when it relates “to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Tex.R.Ceim. Evid. 803(2). At the hearing, the State pointed out that appellant had returned home and'spoken with Esensee in the evening, at least ten to twelve hours after the 6 a.m. robbery. During the interim, appellant and Reneau had traveled to appellant’s parents’ house, removed the money from the safe, and shopped for cars and stereos. Given the fourteen-hour delay and appellant’s activities after the robbery, we hold that the trial court did not abuse its discretion in rejecting appellant’s excited-utterance argument. Appellant’s tenth point of error is overruled.

The judgment of the trial court is affirmed.

      . Unless otherwise indicated, all future references to Articles refer to the Code of Criminal Procedure.

      . Referring to Texas Rule of Criminal Evidence 403, appellant also complains that the probative value of the video was outweighed by its prejudicial effect. Because appellant only objected on the ground that the tape had not been properly authenticated under Rule 901, appellant has waived his Rule 403 challenge. In addition, while appellant argues generally in his brief that the evidence is "hearsay” to which no exception applies, his only trial objection was based on lack of authentication. Accordingly, our analysis is limited to appellant's authentication argument.
      The Texas Rules of Criminal Evidence were amended and merged with the Texas Rules of Civil Evidence to become the Texas Rules of Evidence, effective March 1, 1998. Judgment was entered in appellant’s case on March 2, 1998, but all of appellant's points of error raising issues relating to the Rules of Evidence pertain to proceedings occurring before March 1, 1998.

      . Appellant relies on Rule of Criminal Evidence 705, which provides that, "unless the court requires otherwise” an expert may testify as to his opinion without prior disclosure of the underlying facts or data. "The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data....”

      . The jury was required to answer the following special issue pursuant to Article 37.071 § 2(b)(2):
      Do you find from the evidence beyond a reasonable doubt that JEFFREY LEE WOOD, the defendant himself, actually caused the death of Kriss Keeran, the deceased, on the occasion in question, or if he did not actually cause the deceased's death, that he intended to kill the deceased or another, or that he anticipated that a human life would be taken?

      . Because appellant neither explains how Furman supports his point nor distinguishes his rights under the Texas Constitution from that of the federal Constitution, we address only whether the anti-parties special issue violated appellant’s rights under the United States Constitution. See Dewberry, 4 S.W.3d at 744.

      . Appellant also complains, without argument, that the Eighth and Fourteenth Amendments require a factual sufficiency review of the future dangerousness special issue. This complaint renders point of error six multifarious and is inadequately briefed. Appellant further contends that the offense alone, without additional aggravating punishment-phase evidence, may be sufficient to support an affirmative answer to the future dangerousness special issue, but fails to argue how this fact renders the capital sentencing scheme unconstitutional. See TexR.App. Proc. 38.1(h). This contention also renders point of error six multifarious and is inadequately briefed.

      . Section 8.05 recognizes duress as a defense to prosecution "when the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.” Section 8.05(c), further explains that compulsion "exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.” (emphasis added). At trial, appellant requested an instruction replacing the objective standard with one tailored to appellant: "Such compulsion exists only if the threat of force is such as would render a person of similar firmness to the Defendant incapable of resisting the pressure.” (emphasis added).

      . Appellant cites to United States v. Willis, 38 F.3d 170 (1994), in which he says the "Fifth Circuit Court of Appeals considered a similar issue....” While Willis recognized that section 8.05 establishes an objective test, the defendant there did not raise an equal protection claim, nor did the Court address any equal protection concerns.

      . The Equal Protection Clause of the Fourteenth Amendment requires that "all persons similarly situated shall be treated alike” under the law. Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982). This generally means that "States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799, 117 S.Ct. 2293, 138 L.Ed.2d 834 (1997). "If a legislative classification or distinction ‘neither burdens a fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end.’ ” Id. (quoting Romer v. Evans, 517 U.S. 620, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996)). Appellant makes no argument as to whether the class of individuals he alleges is excluded by section 8.05(c), or is not a "suspect class.” Cf. City of Cleburne, Texas, et al. v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1975)( mental retardation is not quasi-suspect class).


author: ALMA L. LÓPEZ, Justice. GREEN, Justice, LOEEZ, Justice.

text:
    SERV-AIR, INC., Appellant, v. Jane E. PROFITT, Individually, and as Executrix of the Estate of Maj. Gen. Glenn A. Profitt, II, Deceased; Glenn S. Profitt; David S. Profitt; Glenn A. Profitt and Jessie L. Profitt; and Michelle Carey, a Widow, Individually and as Next Friend of Patrice Marie Carey; Shawn Thomas Carey and Chris Gordon Carey, Minors, and as Independent Executrix of the Estate of Captain Paul Edwin Carey, Deceased, Appellees.
    No. 04-97-00703-CV.
    Court of Appeals of Texas, San Antonio.
    Aug. 31, 1999.
    Concurring and Dissenting Opinion Oct. 13, 1999.
    Opinion on Rehearing Feb. 16, 2000.

      Sharon E. Callaway, Wallace B. Jefferson, Ellen B. Mitchell, Crofts, Callaway & Jefferson, P.C., San Antonio, Martin E. Rose, Rose-Walker, L.L.P., Dallas, Allison Freeman Logan, Gardere & Wynne, L.L.P., Dallas, for Appellant.
    Russell H. McMains, Law Offices of Russell H. McMains, Corpus Christi, James L. Branton, Carol P. Lomax, Bran-ton & Hall, P.C., San Antonio, Jack Pasqual, Jack D. Pasqual, Jr., Law Offices of Jack Pasqual, P.C., San Antonio, L. Rich Humpherys, Christensen & Jensen, P.C., Salt Lake City, UT, for Appellee.
    Sitting: ALMA L. LÓPEZ, Justice CATHERINE STONE, Justice PAUL W. GREEN, Justice.

      . While this appeal was pending, the Profitt appellees and Serv-Air, Inc. notified the Court that they had settled their dispute.

      . Dissenting opinion to follow.

   OPINION

Opinion by:

ALMA L. LÓPEZ, Justice.

This is a wrongful death and survivor-ship case arising from an airplane crash in which all eight aboard were killed. The Air Force Learjet C-21A crashed near Mobile, Alabama, en route from Andrews AFB to Randolph AFB. Several parties settled before and/or after the three-week trial. The jury found that Serv-Air, the maintenance contractor for the plane, was 75% negligent and SimuFlite, the pilot training contractor, was 25% negligent. The jury found no negligence on the part of Captain Carey, Learjet or Lear-Romec. The trial court entered judgment on the jury’s verdict, awarding the Carey plaintiffs $3,379,859.11 and the Profitt plaintiffs $1,862,120.38 jointly and severally against Serv-Air and SimuFlite, plus $10 million in exemplary damages against Serv-Air. Si-muFlite then settled with all of the plaintiffs and Serv-Air settled with the Profitt plaintiffs. The remaining parties before us on appeal are Serv-Air, Inc. and the survivors of co-pilot, Captain Paul Edwin Carey. Serv-Air raises eleven issues concerning evidentiary sufficiency, exemplary damages, jury questions, necessary parties, and settlement credits.

The Cause op the Ceash

A severe fuel storage imbalance in the wings caused the left wing to hold 1,800 pounds more fuel than the right wing. This made the plane uncontrollable, it went into a spin and crashed. The imbalance was caused by a malfunction of the right wing standby fuel pump. A worn bearing in that standby pump caused a surge in electricity, which resulted in the K-l relay contact points for that pump to be welded together so that the pump ran “uncommanded,” ie., even though it was not triggered by a cockpit switch. This relay is located in the fuel control relay panel. The K-l relay was described in expert testimony as having “a mountain of metal on one point, or one contact, and a valley on the other,” as a result of repeated arcing over a long period of time.

Although there were other mechanical (electrical) malfunctions that were apparent either to the flight or maintenance crew on the ground at Randolph AFB where the flight originated, en route to Wrighb-Patterson AFB, and later that day at Andrews AFB, the condition of the standby pump or the fuel control relay panel did not come to their attention.

Arriving at Andrews, the pilots documented two malfunctions: a circuit breaker problem affecting the Flight Data Recorder and a problem with the fuel system, ie., they noted that the fuel would not transfer aft from the wing tanks to the fuselage tank. Serv-Air’s maintenance contract procedures required the Serv-Air mechanic, David Amadei, at the outset of his inspection, to fill out Form 781A and place a red symbol denoting the seriousness of the conditions reported by the pilots. He did not do so and testified that he was unaware that he was suppose to make this indication at the outset of his inspection.

The significance of this procedure is that the plane could not be released as airworthy until after the condition was corrected and the red symbol was removed from this form. Amadei was in the process of troubleshooting when he and the commanding pilot discussed the status of the plane and the pilot, decided to defer further maintenance until the plane reached its home base, Randolph AFB. Had the existing conditions been recorded as “Red-X”, the phot would not have had that option. The plane would have received further troubleshooting maintenance and/or the crew would have been given another plane for the completion of their mission. At the time his troubleshooting was interrupted, Amadei had removed the fuel control panel and was going to replace it with a new one. If that did not fix the problem, the next logical step was to replace the fuel control relay panel and, thereby replace the faulty relay switch.

On the final leg of the mission, experts testified, when the pilots started the engines, the right standby pump should only have operated briefly. Because of this long-term metal buildup, however, the contacts in the K-l relay switch fused together in an “on” position, leaving the right standby fuel pump running continuously. As the severe fuel imbalance materialized, the pilots followed each of three corrective procedures outlined in the “Dash-1” manual but none of these procedures- worked. There was a fourth procedure, not included in the Dash-1, which the manufacturer had issued in 1990 which might have allowed the pilots to maintain control of the aircraft, but this procedure had not been adopted by the Air Force and was not implemented.

Proximate Cause

In its first two issues, Serv-Air argues that its acts and/or omissions did not proximately cause the crash.

1. The Standards of Review

When reviewing the legal sufficiency of the evidence, we consider only evidence and inferences tending to support the jury findings, disregarding all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). Challenges to the legal sufficiency of the evidence issues:

must be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence established conclusively the opposite of a vital fact.

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (citing Robert W. Calbert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960)), cert. denied, — U.S. —, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); see also W. Wendell Hall, Standards of Review, 29 St. Mary’s L.J. 351, 477 (1998). Thus, if we find any evidence of probative force to support the jury’s findings, the point must be overruled and the findings upheld.

A review for factual insufficiency, on the other hand, requires the court of appeals to consider, weigh, and examine all of the evidence that supports and that is contrary to the jury’s determination. See Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Where there is conflicting evidence, the jury’s verdict is conclusive. We will set aside the verdict only where we find the evidence standing alone to be so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

2. Legal Sufficiency

A finding of proximate cause requires a showing of both cause in fact and foreseeability. See Union Pump Co. v. Allbritton, 898 S.W.2d 773, 777-84 (Tex.1995) (Cornyn, J., concurring) (history of development of causation in Texas law). Serv-Air isolates the proximate cause to the condition of the standby pump for which it was not responsible for any maintenance or periodic checks because this equipment was expected to last for the life of the plane. Therefore, Serv-Air argues that its negligent maintenance of the craft on the day of the crash was neither the cause in fact nor foreseeable. The standby pump failure is too remote to ServAir’s maintenance duties to constitute a legal cause. To reach this conclusion, Serv-Air relies on its own expert "witnesses and ignores the rest of the evidence that was placed before the jury.

It is undisputed that the 1,800 pound fuel imbalance made the plane uncontrollable. A worn bearing in the right standby pump caused an electrical surge. A relay in the fuel control relay panel fused in the closed position. This caused the pump to run uncommanded, even though the pilot’s cockpit switch indicated it was in the “off’ position. This fuel control relay panel, installed by appellant, had been “cannibalized” or taken from another aircraft at Randolph AFB three months before the crash (itself a violation of Air Force regulations and Serv-Air’s contract). Jerry Hornback, Serv-Air aircraft mechanic at Randolph AFB, testified that when the part was taken out of the other plane, the mechanic did not know its history. He knew he was installing a used relay panel with unknown history in the plane that ultimately crashed. Hornback admitted that this part had an impact on the electrical system of the plane. While the plane was at Andrews AFB, Amadei, the aircraft mechanic, conducted a troubleshooting protocol because “something was not allowing the [fuel] system to work correctly.” Amadei did not understand what was wrong with the aircraft, he had not completed his troubleshooting protocol, and had not documented that his work was incomplete. Amadei testified that this plane should have been Red-Xed and that he was the person who should have grounded the plane on the day of the crash. The jury heard more than a scintilla of evidence that tied Serv-Air’s negligent maintenance practices to the proximate cause of the crash.

3. Factual Sufficiency

Following the flight from Wright Patterson AFB, Ohio to Andrews AFB, Capt. Carey filed a written report indicating mechanical discrepancies or problems experienced in-flight. Among the problems noted were: “the flight data record circuit breaker won’t reset; ... Fuel will not transfer aft. No light flash or other indications of operation.” Robert Ulrich, plaintiffs’ pilot. expert, testified that when a pilot writes up such a report upon landing, he will rely on the mechanic to address the problem, “then you basically hand the plane over to the maintenance people to take over the problem.” The pilot would then expect the mechanic to “then determine the type of symbol to place with that write-up.” Following any repairs, the pilot would expect that the maintenance work performed would also be recorded and a new status symbol placed on the sheet.

If Serv-Air had instructed its mechanics to follow the procedures required in the Air Force contract, Amadei would have Red-Xed the plane at the start of the troubleshooting process, and the plane would not have been cleared for flight until Amadei understood the underlying problem, fixed it, and cleared it with his supervisor. Serv-Air states its mechanic tested the right standby fuel pump during the troubleshooting procedures at Andrews and the pump, the relay, and the switch all worked fine. It was the worn bearings in the standby pump that caused the electrical surge, rather than the other electrically-related problems that were reported by the flight crew upon reaching Andrews. Serv-Air stresses that the various electrical systems on the plane are all separately wired, so that an electrical problem in one system would not necessarily indicate an electrical problem in another system.

Serv-Air also disagrees with appellees’ characterization that this was a fuel system problem, stressing instead that Ama-dei was troubleshooting one faulty transfer-fill switch that affected the fuselage tank only, a problem Serv-Air says did not affect the airworthiness of the plane. The jury, however, heard General L.E. Curtis, a maintenance and quality assurance expert, testify to the importance that every discrepancy be recorded as completely as possible so that ,as mechanics “troubleshoot, they can identify these linkages and interconnections as they point to a more severe underlying problem.... As you troubleshoot an aircraft you just don’t look at the discrepancy that’s written up. You’re troubleshooting the entire aircraft as an entity.” Once a pilot turns the plane over to maintenance, maintenance is “responsible and accountable for providing a full documentation of the maintenance of the aircraft to the air crew prior to the next flight.”

In addition, Serv-Air claims there were intervening causes of the crash: the commanding pilot’s decision to defer maintenance interrupted maintenance troubleshooting and the fact that the relay switch welding that caused continuous uncom-manded transfer of fuel to the left wing occurred after take-off from Andrews. Neither of these events would have occurred, however, if Serv-Air’s mechanic had followed mandatory protocol, performed a timely and accurate documentation of his troubleshooting and designated the status of the craft as “Red-X”. We do not find the evidence as a whole to be so weak as to be clearly wrong and manifestly unjust. Appellant’s first two issues are overruled.

Pilot ERROR

In its third issue, Serv-Air asserts that the jury’s finding of no negligence on the part of the pilot, Capt. Carey, is against the great weight and preponderance of the evidence. Serv-Air argues that the pilot should have realized that the cross-flow valve was open, allowing the transfer of fuel from right to left wing. If Carey had closed that valve after jettisoning excess left wing fuel during his last attempt at corrective procedures, the left wing would not have refilled with fuel causing another imbalance. Serv-Air attributes this failure to lack of pilot training and panic.

Our review of this point again requires that we examine the entire record to determine if there is some evidence to support the jury finding of no negligence. We may reverse and remand a case for new trial only when the great weight of the evidence supports an affirmative answer to the jury question. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). In 1990, Learjet published in its civilian aircraft training materials a checklist of procedures for responding to “fuel imbalance with cross-flow value closed.” These procedures were not included in the military training manual, the “Dash-1.” Nor were these procedures taught by Simu-Flite, the government contractor for military pilot training. However, a pilot expert testified that, in one of five SimuFlite pilot training seminars he attended while he served in the Air Force, he heard talk of this problem in scuttlebutt during the breaks with other pilots. It was not taught as part of the class. It is undisputed that the pilots were presented with an unexplained and confusing situation which was not corrected by following the Dash-1 procedures. The jury also heard evidence of a similar incident experienced in 1993 by a civilian pilot in Oregon who did not respond by “simply closing the cross-flow valve.” That pilot was able to land the plane and the problem was remedied by replacing the fuel control relay panel. In reviewing the entire record, we do not find that the jury’s negative finding on pilot error to be overwhelmingly against the great weight and preponderance of the evidence. Appellant’s third issue is overruled.

Design Defects

In a fourth issue, Serv-Air contends that the jury’s finding of no negligence on the part of Learjet and Lear-Romec is against the great weight and preponderance of the evidence. Serv-Air argues that the standby pump, manufactured by Lear-Romec, intended to last the lifetime of the aircraft, carried no warnings of potential wear to the bearings nor did they require regular maintenance or service checks. An electrical systems expert testified that the relay panel and contacts were not lasting the life of the plane because the electrical current exceeded the design specifications. In addition, the jury heard evidence of a design defect, ie., there was no “disagreement” light on the pump like there was on the cross-flow valve, which would have indicated that although the switch showed the pump was “off’ it was actually “on.”

Serv-Air further points to Learjet’s failure to advise the Air Force, in breach of their contract obligation, of the potential mechanical malfunction of the standby pump after it had issued a revision to the aircraft flight manual for its other equivalent models. Expert testimony stated that had the phots had the revised procedure in their Dash-1 manual, they could have solved the fuel imbalance problem and safely landed the plane.

Appellees respond that this is not a failed pump case, it is an electrical failure case. The jury heard a great deal of testimony about several electrical malfunctions reported by the pilots on this mission. With the level of reported, unsolved problems, this plane should have been grounded. Also, Learjet’s maintenance and training contract had expired, the maintenance portion had been awarded to Serv-Air, and the training portion of the contract to SimuFlite, a post-trial settling defendant. We do not find that the great weight of the evidence would require the jury to shift blame to Learjét and Lear Romee. Appellant’s fourth issue is overruled.

GROSS Negligence

In issues five, six, and seven, Serv-Air argues that there is no evidence of gross negligence to support the jury’s award of punitive damages. Objectively speaking, Serv-Air’s conduct must create “an extreme degree of risk” to support a finding of punitive damages. See Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 21-22 (Tex.1994). Remote possibilities do not meet the test, rather, the conduct must create the “likelihood of serious injury.” See Universal Servs. Co., Inc. v. Ung, 904 S.W.2d 638, 641 (Tex.1995). The risk must be defendant’s creation and unjustifiable. See Moriel, 879 S.W.2d at 19-23; Convalescent Servs., Inc. v. Schultz, 921 S.W.2d 731, 736 (Tex.App.—Houston [14th Dist.] 1996, writ denied) (extreme risk met because person’s condition -with type of ulcer at issue would definitely deteriorate to life threatening state if not given proper care). From a subjective perspective, the evidence must show that the defendant had actual, subjective awareness of the risk involved, and proceeded with conscious indifference to the rights, safety, or welfare of others. See Moriel, 879 S.W.2d at 23.

A. Legal Sufficiency

Serv-Air bases its arguments, that the evidence is legally insufficient to support punitive damages, on its pump failure theory contending it had no duty to inspect, service, or maintain the pump and, therefore, the cause is too remote to warrant punitive damages. As it had no knowledge of the bearing failure which caused the electrical surge, Serv-Air argues there was no proof of conscious indifference. This argument ignores the fact that Serv-Air’s lead mechanic, Amadei, released the aircraft from maintenance with an electrical problem that he had not fixed; he knew he had not fixed it, and worse, he had not told anyone that he had not fixed it. He says he did tell the pilots he had figured out how to transfer fuel between tanks by “tricking” the system, but he did not document any of this — all contrary to required operating, contractual procedures. He never informed the air crew of the non-airworthy status of the plane. The jury could reasonably conclude that this conduct created the likelihood of serious injury. Serv-Air’s evidence of justification attempted to point the finger at the commanding pilot, whose decision to defer further troubleshooting until the plane arrived at home base was based on the absence of the very documentation needed to properly assess the status of the plane. The jury had more than a scintilla of evidence to conclude that the act of releasing a jet plane with known electrical problems in the fuel control system that had not been resolved and that were essential to its operation while completely ignoring the documentation procedures that would have identified these issues and grounded the plane was gross and conscious indifference to the rights, safety, or welfare of others.

Many months into the new Air Force contract, Serv-Air mechanics testified that they had not reviewed the Air Force contractual requirements regarding quality assurance, safety, and standard operating procedures, and were totally unfamiliar with the forms which required red symbols (e.g., the Red-X). The jury also heard testimony that a Serv-Air employee, who had no relevant training in C-21A maintenance, was delegated the duty of performing a mandated, six-month inspection on the plane in question three weeks before the crash. Of the eight steps this employee was assigned to complete, he only did two of them — yet another Serv-Air technician certified the entire eight-step inspection on that basis. The aircraft passed the six-month inspection. The jury-heard other evidence of a Serv-Air supervisor at Randolph not following procedures involving the proper handling of a Red-X documentation, and that its Andrews maintenance crew followed work rules dramatically at odds with Air Force contract requirements. For example, Amadei testified that, pursuant to work rules adopted by Serv-Air in 1995, if he did not complete certain work because he had not yet fixed the problem, the problem did not get documented. Air Force rules require documenting the problem as soon as it is noted, not after it is fixed. Another Serv-Air witness admitted, on cross-examination, that it was in his company’s financial interest not to document unresolved maintenance problems, because non-documentation helped the company avoid liquidated damage penalties under its maintenance contract with the Air Force. An Air Force review of Serv-Air’s contractual performance reported numerous systematic maintenance quality problems. General Curtis testified that Serv-Air’s practices constituted gross negligence.

Alternatively, Serv-Air argues the evidence is legally insufficient to attribute any vice-principal’s gross negligence to Serv-Air. In other words, if Amadei’s failure to Red-X or ground the plane is gross negligence, there is no evidence that ServAir authorized or ratified it or that Amadei meets the legal definition of vice-principal, he was simply an employee. See Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 391 (Tex.1997) (grossly negligent act must be act of corporation, not act of mere servant or employee, unless so authorized or approved by corporation). Jury Question No. 5 allowed the jury to base its gross negligence finding on the acts of “Serv-Air, Inc., its agents or employees.”

Appellees respond that Serv-Air did not raise this issue at the trial level, that Serv-Air was contractually obligated to insure the adequate training of its personnel and the implementation of the maintenance procedures specified in technical orders. These are nondelegable duties. See Hammerly Oaks, 958 S.W.2d 387 (certain non-delegable duties of the corporation cannot be assigned to an employee so as to relieve the corporation of liability, supporting an award of punitive damages). The jury heard evidence that Serv-Air’s practice of non-documentation of unresolved maintenance problems was a system-wide failure in training and supervision. The nationwide practice was admitted by Serv-Air’s expert. This unwritten but wide-spread practice, at odds with its absolute contractual obligations to the Air Force, is similar to the level of gross negligence and conscious indifference found on the part of the corporate entity in Ellender. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 923 (Tex.1998) (Mobil’s policy of monitoring and protecting its own employees regarding exposure to benzene for cleaning tools was not extended to contract workers; held to be sufficient for jury to infer that Mobil knew the risks of benzene exposure yet proceeded with conscious indifference to safety and welfare of contract workers). Issues five and six are overruled.

B. Statutory Cap

Serv-Air complains the punitive damages awarded the Carey Estate were excessive as they exceed the statutory cap of “four times the amount of actual damages or $200,000, whichever is greater.” See Tex. Crv. PRAC. & Rem.Code Ann. § 41.007 (Vernon 1994). The jury awarded $5 million to the Carey family members and Estate and directed that 100% of the award go to the Estate of the deceased. The jury awarded actual damages for pain and mental anguish to the Estate of Captain Paul Edwin Carey in the amount of $150,000. Serv-Air seeks a remittitur of $4,400,000 as to the Carey Estate.

Public policy interests dictate that punitive damages are available so that juries might exact a punishment against a wrongdoer. See Moriel, 879 S.W.2d at 16. These interests are best served when the punitive damages are reasonably related to the total amount of harm that occurred as reflected by the actual damages awarded the plaintiff. See I-Gotcha, Inc. v. McInnis, 903 S.W.2d 829, 840 (Tex.App.—Fort Worth 1995, writ denied). The magnitude of wrongful conduct is the pivotal factor in assessing this award against the defendant. The statutory cap on punitive damages serves to impose a reasonable ratio between the degree of wrongful conduct and the amount of punishment to be dispensed. Where the harm inflicted was small, the statutory cap insures that the punishment will be relatively small. Where the harm inflicted is devastatingly great, the cap permits great punishment.

The focus on the level of the punishment is not on the recovery of individual plaintiffs who are harmed, as Serv-Air argues in its brief, rather it is on the degree of harm caused by the wrongful conduct of the defendant. In this case, great harm resulted from Serv-Air’s conduct. Eight people died. To focus on who is recovering how much in actual damages would improperly shift the emphasis away from what the defendant did do. It is irrelevant who gets the punitive damages in the legal sense; what matters is that the defendant is punished in relation to the harm it actually caused. Cf. I-Gotcha, Inc. v. McInnis, 903 S.W.2d at 841 (“actual damages” as used in punitive damage cap refers to damages findings by jury prior to court’s reduction for contributory negligence findings).

There are scholars, legislators, and judges who believe punitive damage awards should properly go to the State rather than to the injured parties. Such damages are designed to punish and deter the defendant — not to provide a windfall to the plaintiff who is already made whole through recovery for actual damages. See e.g.,General Resources Organization, Inc. v. Deadman, 932 S.W.2d 485 (Tex.1996) (Gonzalez, J.) (concurring opinion on denial of application for writ of error); Moriel, 879 S.W.2d at 17 & n. 7 (Cornyn, J.) (quoting W. Page Keeton, et al., PROSSER and Keeton on the Law of Torts, § 2 at 14 (5th ed.1984)). For punitive damages to be'effective, however, it really doesn’t matter who gets the money. The defendant is punished in any case.

Although, in this case, the wrongful conduct was great and the damages catastrophic, the defendant would not receive a proportionate punishment under appellant’s suggested application of the cap. This would defeat the very purpose of the punitive damage award. The jury awarded actual damages to the Carey plaintiffs in the following amounts:

Michelle Carey $3,650,000

Patrice Carey 349,000

Shawn Carey 328,000

Chris Carey 391,000

Carey Estate 150,000

Total $4,868,000

The jury assessed against Serv-Air and awarded punitive damages in the amount of $5,000,000 to the Carey plaintiffs. The jury then apportioned 100% of the punitive damages to the Carey Estate. This award is well within the ratio permitted under the statutory cap. Appellant’s seventh issue is overruled.

Double Submission of the Negligence Question

The basic negligence liability questions were submitted twice to the jury. Questions 1 & 2 are identical to questions 3 & 4 — except the latter set also inquires of the negligence of pilot/plaintiff Carey. Serv-Air claimed Carey was contributorily negligent by committing pilot error. In question 3, the jury found Carey was not negligent. Appellant argues this format suggested that Serv-Air was negligent and that Carey was not (because the issue of Carey’s negligence was not submitted in the first instance). Further, appellant argues that the double submission commented on the weight of the evidence and suggested that Serv-Air’s responsibility was greater than other parties. Serv-Air was always listed first, rather than in alphabetical order (or in the order of the pleadings). Carey’s potential liability for pilot error was not presented until Serv-Air’s had been presented three times. Serv-Air claims this misled and confused the jury and harm is demonstrated in the jury’s failure to find any negligence by Carey in the face of substantial evidence of pilot error. Serv-Air suggests the jury could have concluded that question 3 was merely redundant of question 1, where it had already found Serv-Air and SimuFlite negligent — especially where no instruction was given for question 3 that would instruct the jury not to consider its answer to any previous question when answering question 3.

Questions 1 and 2 refer to the defendants who may have proximately caused injury to the Profitt parties. The Profitt plaintiffs did not raise a cross-claim against the Careys and the issue of pilot error by Carey is not relevant to the issue of the defendants’ negligence proximately causing injury to the Profitts. Questions 3 and 4 were submitted as to the Carey parties’ claims and this set of issues reflected Serv-Air’s affirmative defense against Carey.

The jury charge did not explain or comment on the so-called double submission. The jury was instructed to “simply answer the questions and do not discuss nor concern yourself with the effect of your answers.” The jury was totally consistent in answering questions 1 and 2 and questions 3 and 4. Absent any evidence to the contrary, an appellate court must assume that a jury properly followed the trial court’s instructions. See Turner, Collie & Braden, Inc. v. Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex.1982). Issue number eight is overruled.

FAILURE TO ABATE THE CAREY ACTION

Captain Carey’s parents pursued a separate lawsuit in Dallas for wrongful death during the time his wife and children intervened in the Profitt action here. The Dallas action was filed one day before Michelle Carey intervened in the San Antonio action which is the subject of this appeal. Serv-Air noted this in its original pleading, and shortly before the first trial setting, filed a motion to abate which was denied in a pre-trial hearing. After judgment but before the motion for new trial was heard, Carey’s parents settled their claims by taking an assignment of a portion of the Carey recovery and non-suiting their Dallas claims. The trial court denied reconsideration of the motion to abate, finding that the Carey parents’ Dallas action had not been timely filed on behalf of the Carey Estate and that the San Antonio joinder was timely and filed by the independent executor and therefore properly before the court. The trial court also denied appellant’s motion to abate at the hearing on the motion for new trial.

Appellant claims it was error to proceed to trial in San Antonio when all the Carey beneficiaries had not been joined. The Texas Wrongful Death Act identifies the statutory beneficiaries of such action, namely, the surviving spouse, children, and parents of the deceased. Tex. Civ. PRAC. & Rem.Code Ann. § 71.004(a) (Vernon 1997). Texas courts have long held that all the beneficiaries named in the act are necessary parties. See Avila v. St. Luke’s Lutheran Hosp., 948 S.W.2d 841, 850 (Tex.App.—San Antonio 1997, writ denied). In Avila, three surviving adult Jimenez children sued a hospital and medical personnel for damages in connection with the medical treatment their father received. They settled the suit and entered a consent judgment. Four years later, a half-sister of the adult children, who had been born post-humously, filed a wrongful .death action against some of the same defendants. The trial court granted a summary judgment based upon collateral estoppel and this court reversed because there was no proof of privity between the adult children and the baby half-sister. The adults did not know of their sister at the time the consent judgment was entered and the baby’s mother did not know the first lawsuit had been filed and settled. See id. at 855 (Riekhoff, J., concurring).

The facts mandating reversal in Avila are distinguishable from this case. The Wrongful Death Statute provides that “one or more of the statutory beneficiaries may bring the action for the benefit of all.” See Tex. Civ. PRAc. & Rem.Code Ann. § 71.004(b). Most significantly, the adult Jimenez children did not sue on behalf of all beneficiaries of their deceased father. Their original petition does not mention Avila or any other statutory beneficiaries. Secondly, the first suit resulted in a settlement and consent judgment while this case involved a contested jury trial. Thirdly, Avila was unaware of the first lawsuit. That is not the case here where the Carey and Profitt plaintiffs invited the Carey parents to join this lawsuit and, although this invitation was declined, the Carey parents participated in extensive discovery with the other Carey parties and ultimately took an assignment of the Carey judgment and abandoned their claims in the Dallas suit.

There is another reason why the trial court ruled correctly in denying a motion to abate in this case. The Wrongful Death Act provides a window of time within which any statutory beneficiary may file an action “for the benefit of all.” See id. However, if none of them do so within three calendar months of the date of death, “his executor or administrator shall bring and prosecute the action unless requested not to by all those individuals.” Id. at § 71.004(c). Michelle Carey was appointed independent executrix of the Carey Estate three weeks after Captain Carey was killed. The time during which any statutory beneficiary could bring an action on behalf of all beneficiaries expired on July 19, 1995. The Profitt plaintiffs filed suit in Bexar County on August. 25, 1995. The Carey parents, who did not sue for the benefit of all, brought their action in Dallas on August 30, 1995, and Michelle Carey, on behalf of the Estate and the remaining statutory beneficiaries, joined the Profitt plaintiffs in the San Antonio action on August 31, 1995. The trial court found that Michelle Carey invited the Carey parents to join in the San Antonio intervention, but they declined. We find that the trial court correctly applied Section 71.004(c) to the facts of this case in its findings of fact that the proper plaintiff representative after July 19, 1995, was the executor of Captain Carey’s estate, his widow, Michelle Carey. See id. Appellant’s issue number nine is overruled.

Settlement Credits

The Careys settled separately with Learjet and with Lear-Romec prior to trial against Serv-Air. This occurred several months before trial. Michelle Carey, her children, the Carey Estate, and the Carey parents settled individually with Learjet and Lear-Romec. At trial, Serv-Air elected a dollar-for-dollar credit. The trial court apportioned the settlement credits according to the amounts ultimately received by each party. In its eleventh issue, Serv-Air complains that the trial court should have credited the entire Learjet/Lear-Romec settlement against the judgment, including the settlement accorded the Carey parents. The Carey parents received nothing by way of a jury verdict or judgment because they were never formally joined prior to judgment. They, instead, received an assignment from the Carey Estate’s executor or Michelle Carey, as the case may be, and have relinquished all causes of action against Serv-Air.

The Supreme Court has recently clarified this issue, directing a court to view the entire family, such as the Carey family, as one “claimant” for section 33.012(b)(1) purposes, and therefore, “the total of all damages to be recovered by the family must be reduced by the total of all settlements received by the family.” See Drilex Systems, Inc. v. Flores, 42 Tex. S.Ct. J. 959, 965 (July 1, 1999) [1999 WL 450793, motion for rehearing filed July 16, 1999]; see also Tex. Civ. PRAC. & Rem.Code § 33.012(b)(1) (requiring that the sum of the dollar amounts of all settlements entered into by a claimant be deducted from the amount of damages to be recovered by that claimant). We, therefore, sustain Serv-Air’s eleventh issue. Applying the Drilex formula adopted by the Supreme Court, the recovery to the Carey parties from Serv-Air is modified as follows: Michelle Carey’s recovery is reduced from $2,142,277 to $1,942,721. Patrice Carey’s recovery is increased from $192,921 to $185,774. Shawn Carey’s recovery is increased from $171,921 to $174,632. Chris Carey’s recovery is reduced from $234,921 to $208,056. The Carey Estate’s recovery is reduced from $148,959 to $79,802. Thus, the total recovery for actual damages to the Carey parties against Serv-Air shall be reduced from $2,891,000 to $2,590,985.

The judgment of the trial court is affirmed as modified.

GREEN, Justice,

concurring and dissenting.

I concur with the result reached by the majority except on the question of gross negligence.

Although the consequence of Serv-Air’s negligence was tragic and enormous, the record does not support a finding that Serv-Air acted with conscious indifference to the rights, safety or welfare of others in the face of extreme risk. SeeUniversal Services Co., Inc. v. Ung, 904 S.W.2d 638, 641 (Tex.1995). To the contrary, the record shows Serv-Air attempted to repair the aircraft, albeit negligently.

Considering what the Serv-Air maintenance personnel were told when the aircraft was turned over to them — that the flight data recorder circuit breaker would not reset and that fuel would not transfer aft — there is nothing to suggest that what they did or failed to do created an “extreme degree of risk” or the “likelihood of serious injury.” Id. Moreover, there is no evidence that Serv-Air had “actual, subjective awareness” of the risk involved; that is, that they knew the aircraft was not airworthy, but released it to the pilots anyway. Id. In short, neither the objective nor the subjective prongs of the gross negligence test have been satisfied. See id.

I therefore dissent to that part of the majority opinion and judgment that affirms the gross negligence finding and the award of punitive damages.

Opinion on Motions FOR Reheaking AND REHEARING En BANC

LOEEZ, Justice.

Michelle Carey, in her several representative capacities, filed a motion to correct the judgment in two respects to reflect the majority’s ruling to affirm the trial court judgment, and these requested corrections shall be granted. Accordingly, the judgment shall be corrected to include joint and several liability against the sureties on the supersedeas bond. The judgment shall also be corrected to award exemplary damages to Michelle Carey, individually, as well as in her representative capacities.

Carey also seeks rehearing on the settlement credit issue. The civil practice and remedies code defines “claimant” as a “party seeking recovery of damages.” Tex. Crv. Prac. & Rem.Code § 33.011(1) (emphasis added). The supreme court recently clarified the proper procedure for applying settlement credits when all of the plaintiffs are seeking damages for injury to the same person. Drilex Systems, Inc. v. Flores, 1 S.W.3d 112, 115, 120-24 (Tex.1999). In Drilex, all of the Flores family were party-plaintiffs seeking recovery of damages for the injuries suffered by Jorge Flores. Thus, they were all included in the. term “claimant” and treated as one claimant for purposes of applying the dollar-for-dollar credit. See id.; Tex. Civ. PRAC. & Rem.Code § 33.012(b).

The Carey settlement is distinguishable from Drilex, however, in that the Carey parents, who settled separately with Learjet and Lear-Romec, were never parties to the Bexar County lawsuit. They had a separate lawsuit pending in Dallas. The Carey parents do not come within the definition of “claimant” for purposes of this lawsuit and this defendant. Our original opinion, therefore, went beyond the Code and Drilex and expanded the definition of “claimant” to non-parties who also achieve settlements with whomever for whatever reason. That was not our intention. On reconsideration, Serv-Air’s eleventh issue is overruled, and Serv-Air is not entitled to a credit for any settlement amount accorded the Carey parents by Learjet and Lear-Romec.

Serv-Air’s motion for rehearing en banc is overruled. Our amended judgment of August 31, 1999, is withdrawn, and a new judgment which incorporates the changes noted in this opinion shall issue.

GREEN, Justice, concurring and dissenting.

      . The Carey plaintiffs intervened and joined three Serv-Air related defendants, who were later non-suited — two mechanics, Jerry Hornback and Lowell E. Spears, Jr., and the parent corporation, E-Systems, Inc. Original defendants, Learjet and Lear-Romec, the manufacturers, entered into a confidential settlement with plaintiffs prior to trial.

      . Dash-1 in this context refers to the Air Force operational manual for the C-21A Learjet, which is the military version of the civilian model 35A/36A Learjet.

      . This provision has since been revised and renumbered as § 41.008(b) by the 74th Legislature. See Tex. Civ. Prac. & Rem.Code § 41.008(b) (Vernon 1997). Currently, the relevant provision reads: "Exemplary damages awarded against a defendant may not exceed an amount equal to the greater of: (1)(A) two times the amount of economic damages; plus (B) an amount equal to any non-economic damages found by the jury, not to exceed $750,000; or (2) $200,000.” Id.

      . Judge Andy Míreles heard this motion in presiding court. Serv-Air’s counsel was delayed en route from Dallas and did not arrive in time for the pre-trial hearing. The court heard argument by local counsel representing co-defendant SimuFlite and opposing counsel, denied both pleas in abatement and indicated that both parties were free to present these issues on reconsideration to the judge assigned to try the case.