author: TOM B. RAMEY, Jr., Chief Justice.

text:
    PROCOM ENERGY, L.L.A., Mike Chandler, John Cummings, Appellant, v. R. Byron ROACH, Appellee.
    No. 12-98-00138-CV.
    Court of Appeals of Texas, Tyler.
    Jan. 26, 2000.
    Rehearing Overruled May 24, 2000.

      James S. Robertson, Jr., Tyler, for Appellant.
    Robert A. Anderson, Longview, for Ap-pellee.
    Panel consisted of RAMEY, Jr., C.J., HADDEN, J., and WORTHEN, J.
   OPINION ON MOTIONS FOR REHEARING

TOM B. RAMEY, Jr., Chief Justice.

Both sides have filed motions for rehearing. The motions for rehearing are granted. The opinion issued by this Court on September 30, 1999, is withdrawn, and the following opinion is substituted.

After a jury verdict favorable to Appel-lee, R. Byron Roach, Trustee, (“Roach”), the Appellants, Procom Energy, L.L.A., Mike Chandler and John Cummings challenge the trial court’s judgment that imposed a constructive trust on Procom’s interest in the A.H. Tubbs lease in Gregg County. Procom, Chandler and Cummings (hereinafter sometimes referred to as “Procom”) present seven issues and Roach asserts two cross-issues. Procom contends that the court’s imposition of a constructive trust arising out of claimed oral promises between the parties was erroneous and in contravention of the Statute of Frauds. We hold, inter alia, that because Texas law recognizes that a constructive trust of an interest in land may arise from the breach of an oral promise of a party in a confidential or fiduciary relationship with another or predicated upon the perpetration of fraud against the other party, we will affirm the trial court’s judgment.

Background

Procom was primarily interested in production in the Woodbine zone (approximately 4,000 feet under the surface), while Roach generally explored gas prospects deeper than 4,000 feet. There was evidence that in December 1993, and the early part of 1994, Procom and Roach discussed the joint acquisition of two separate mineral estates, the Loden leases and the Tubbs lease. It is undisputed that Roach and Chandler decided in December 1993 that they would work together to acquire the Loden leases. Roach advanced $24,000 to Chandler to acquire the Loden leases from their owner, Desana Development. The cash consideration Procom actually paid to Desana was $17,-000. The evidence was unclear whether any part of the remaining $7,000 was used in the procurement of the Tubbs lease.

The principal dispute here concerns the acquisition of an overriding royalty interest in the Tubbs lease. This interest was owned by Don Bullard (“Bullard”). After the Loden transaction was consummated, discussions about the Tubbs lease took place in January, February and March 1994. The parties’ versions of the Tubbs conversations differed. Roach testified that they decided to work together to acquire the Tubbs interest, and that, if successful, he would receive a net 75% revenue interest with the parties splitting the remaining overriding royalty below the base of the Woodbine as had been the agreement on Loden. Chandler, on the other hand, denied unequivocally that he ever promised to work with Roach to acquire the interest in Tubbs. Chandler testified that he consistently informed Roach that he had other commitments regarding the Tubbs lease and could not participate with him in that project.

The Bullard assignment was ultimately negotiated by Lawrence Smith (“Smith”), Procom’s landman, and the Bullard interest was conveyed to Smith as Trustee on March 24, 1994. The cash consideration was $5,000. This interest was then assigned by Smith to Procom, but no transfer of an interest was made to Roach. It was learned during the course of the Tubbs negotiations that Bullard had reserved a large overriding royalty interest below the Woodbine of ¾ of ⅞ below the Woodbine.

Roach asserted ownership of the working interest in the Tubbs property below 4,000 feet through an unrelated chain of title. Roach had earlier pooled the Tubbs lease into a 700 acre gas unit, for which he acted as operator. No proceeds from unit production have been paid to Procom for its interests in either the Tubbs or Loden tracts.

Initially, Roach filed this suit seeking judicial construction of an assignment in his chain of title to the working interest. The trial court, in a partial summary judgment, construed the disputed assignment as contended by Roach. No appeal has been taken of this order.

Procom then counterclaimed seeking payment for production attributable to its full ⅛ of ⅞ override interest as conveyed in the Tubbs assignment from Bullard. Roach, thereafter, amended his petition to assert his cause of action based upon the claimed oral promise by Chandler to apportion the parties’ interests in the Tubbs lease in accordance with their claimed agreement. Roach alleged three grounds for the imposition of a constructive trust upon Procom’s overriding royalty interest in the Tubbs lease: (1) the abuse of a confidential or fiduciary relationship, (2) fraud, and (3) resulting trust. Roach makes no claim that Procom breached an oral contract to convey the property. There is no assertion that Procom held the Bullard assignment in an express trust for Roach. After a jury trial on the merits, the trial court entered judgment ordering imposition of a constructive trust on Pro-com’s Tubbs interest based upon the jury’s answers on each of the grounds asserted by Roach.

Procom’s Issues on Appeal

Procom’s first issue is that the trial court erred in imposing a constructive trust on its interest in the Bullard assignment to enforce the claimed promise by Chandler to acquire the Tubbs interest for their mutual benefit. In answer to the first jury question, the jury affirmatively found that Chandler abused “a confidential or fiduciary relationship with Roach by representing or promising to work with Roach in acquiring the Tubbs lease for their joint benefit and then failing to perform on his promise or representation.” In answer to the fourth question, the jury found that if the parties acquired the Tubbs interest, Roach would receive such overriding royalty below 4,000 feet that would provide him with a net 75% revenue interest and the parties would equally divide the remaining overriding royalty. Thus, as stated, the jury found the principal factual issues in Roach’s favor: that Roach and Chandler did promise to work together to acquire the Tubbs interest, that a confidential or fiduciary relationship existed between Roach and Chandler in the acquisition of the Tubbs property and that this relationship was abused by Pro-com’s refusal to convey the promised interest to Roach. It is Procom’s contention that the imposition of a constructive trust in this transaction based upon an alleged oral promise is in derogation of the Statute of Frauds, which prohibits enforcement of a parol promise pertaining to the ownership of land. Tex. Bus. & ComlCode Ann. § 26.01 (Vernon 1987). A working interest and an overriding royalty interest in an oil and gas lease come within the ambit of the Statute of Frauds. Consolidated Gas & Equipment Co. v. Thompson, 405 S.W.2d 333, 336 (Tex.1966).

A constructive trust is a legal fiction, a creation of equity to prevent a wrongdoer from profiting from his wrongful acts. Ginther v. Taub, 675 S.W.2d 724, 728 (Tex.1984). Such trusts are remedial in character and have the broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice. Meadows v. Bierschwale, 516 S.W.2d 125,131 (Tex.1974). There is longstanding precedent that recognizes that the Statute of Frauds is not a bar to the creation of a constructive trust arising from an abuse of a confidential or fiduciary relationship in the context of a parol transaction. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 560 (1962); Smith v. Bolin, 153 Tex. 486, 271 S.W.2d 93, 96-97 (1954); Fitz-Gerald v. Hull, 150 Tex. 39, 237 S.W.2d 256, 261 (1951); Grace v. Zimmerman, 853 S.W.2d 92, 97 (Tex.App.— Houston [14th Dist.] 1993, no writ). A constructive trust arising out of such abuse of a prior confidential relationship which results in unfair conduct or unjust enrichment escapes the Statute of Frauds. Ginther, 675 S.W.2d at 728.

Procom contends that the relationship between the parties here does not give rise to a constructive trust. As stated, however, the jury found the parties’ relationship to have been “fiduciary” or “confidential.” Procom contends that a constructive trust arising from the abuse of a confidential or fiduciary relationship requires the existence of a partnership or a joint venture between the parties. Neither party here asserts that they were engaged in a partnership or joint venture. The Texas Supreme Court, however, has not required that the contracting parties be engaged in a partnership or a joint venture as a predicate to the imposition of a constructive trust. Gaines, 358 S.W.2d at 560-61. The supreme court approved language in the Fitz-Gerald case that an abuse of confidence that renders unconscionable the retention of property by a party suffices generally to invoke equitable relief that gives rise to a constructive trust; it may be “an abuse of either a technical fiduciary relationship or of an informal relationship where one person trusts in and relies upon another, whether the relationship is a moral, social, domestic, or merely personal one.” Fitz-Gerald, 237 S.W.2d at 261. The rule applies to all persons regardless of whether the relationship may be characterized as fiduciary where the purchaser has a duty to perform inconsistent with his character as purchaser. Ibid, at 262.

Chandler specifically pled that he had “a fiduciary or confiden-confidenrelationship” with Roach in the parties’ prior acquisition, the Loden leases. The discussions regarding the Tubbs lease be-beafter the Loden transaction was com-comThe proposed division of the inter-interbetween the parties was substantially identical in the two acquisitions. There was no evidence of a change of the rela-relabetween the two transactions. In all essential respects, the transactions were the same. Admissions contained in unretracted pleadings are judicial admis-admiswhich are legally binding on the par-parmaking them. Blankenship v. County of Galveston, 775 S.W.2d 439, 440-41 (Tex. App.—Houston [1st Dist.] 1989, no writ).

Furthermore, the supreme court has held that the imposition of a constructive trust must not be limited by a narrow definition of a “confidential or fiduciary relationship.” Smith, 271 S.W.2d at 97; Weaver v. Stewart, 825 S.W.2d 183, 185-86 (Tex.App.—Houston [14th Dist.] 1992, writ denied). It has been repeatedly held that a jury properly must decide whether a relationship between parties is a confidential relationship. Carr v. Weiss, 984 S.W.2d 753, 765 (Tex.App.—Amarillo 1999, writ denied); Smith, 271 S.W.2d at 97; MacDonald v. Follett, 142 Tex. 616, 180 S.W.2d at 334, 337 (1944). As stated, the jury here found that a confidential or fiduciary relationship existed between Procom and Roach in the Tubbs lease transaction. [8]Additionally, where an issue is raised as to the fairness of a confidant or fiduciary in this type of transaction, the burden of proof is imposed upon that individual who refuses to convey the withheld interest to fully disclose the facts and circumstances that would demonstrate his good faith in his conduct. Fitz-Gerald, 237 S.W.2d at 261. The presumptive unfairness of Procom in not conveying the promised interest to Roach is not explained by Procom; its burden has not been satisfied in that respect. Texas Bank & Trust Co., 595 S.W.2d at 507.

Procom also argues that to escape the general rule that land titles must not rest in parol, there must be strict proof of a prior and separate confidential or fiduciary relationship. Ginther, 675 S.W.2d at 728; Consolidated GaS & Equipment Co., 405 S.W.2d at 336. As stated, Chandler has admitted in his live pleadings the existence of a fiduciary or confidential relationship with Roach in the Loden lease transaction. The Loden transaction was prior to and separate from the conversations concerning the Tubbs lease. Although the prior relationship had not endured over an extended period of time, we are unable to agree that there was no prior and separate relationship between the parties preceding the Tubbs transaction.

Procom assiduously contends that the trial court erred in imposing the constructive trust to the Tubbs transaction because the essential terms of the agreement are in dispute and have been proven solely by parol evidence. The controversy in this case centered upon whether the parties had agreed to work together to acquire the Tubbs lease. If the jury had agreed with Procom, Procom would have retained the interest conveyed to them in the Tubbs’ acquisition. The jury, however, found that Roach’s version of the transaction was correct; a constructive trust was imposed and the parties’ interests were divided as stated in the trial court judgment here. As the Supreme Court stated in Gaines v. Hamman, “ [i]t is further no objection to the theory of constructive trust that the parties may have contemplated a division of property in the form of overrides or something similar thereto rather than a division of profits in the form of money.” Gaines, 858 S.W.2d at 560. Here, the evidence showed that if the parties had agreed to work together to acquire Tubbs, they had agreed that Roach and Procom would be assigned equal overrides after Roach received his alleged requirement of a 75% net working interest. This division was the same as the parties had agreed earlier in the prior acquisition of the Loden leases. There was no alternative scheme for the division of the acquired property presented. As stated, the jury agreed with Roach’s contention as to the existence of the elements of a constructive trust as to the Tubbs’ overriding royalty; the division of the overrides followed as in Gaines. Ibid. For the reasons stated, we conclude that the trial court did not err in imposing a constructive trust on Procom’s overriding royalty predicated upon the jury’s finding that Chandler had abused a confidential relationship with Roach.

Secondly, the trial court judgment imposed a constructive trust upon Pro-com’s Tubbs interest predicated on the jury finding of Chandler’s fraud in his dealings with Roach in this transaction. The claimed fraudulent conduct arose out of the same Tubbs lease acquisition discussions between the parties, and Pro-com’s failure thereafter to deliver the agreed interest to Roach. Again, Pro-com’s alleged failure to comply with Chandler’s promise to convey Roach’s interest in the Tubbs assignment, as found by the jury, constituted the misrepresentation underlying the jury’s finding of fraud. Thei’e was evidence that Roach relied upon Chandler’s representations and did not undertake independently to procure the assignment from Bullard. There was also evidence that he divulged various title and geological information to Chandler in reliance upon Chandler’s promise to work together on the Tubbs acquisition found by the jury.

It is noted that the parties do not disagree that fraud is a recognized basis for the imposition of a constructive trust. Ginther, 675 S.W.2d at 727-28; Blankenship v. Citizens National Bank of Lubbock, 449 S.W.2d 77, 79 (Tex.Civ.App.— Amarillo 1969, writ refd n.r.e.). We conclude that fraud likewise is a ground for the imposition of a constructive trust in spite of the Statute of Frauds. Procom’s first issue is therefore overruled. In view of our holdings as to the imposition of a constructive trust based upon an abuse of a fiduciary or confidential relationship and upon the fraud findings, it will not be necessary for us to address Roach’s third theory, a resulting trust.

In its second issue, Procom asserts that there is no evidence, or alternatively, insufficient evidence, to support the jury’s findings discussed in the first issue. In reviewing no evidence or legal insufficiency points, we are required to consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 895 S.W.2d 821, 823 (Tex.1965). In reviewing a factual insufficiency challenge, we must consider all the evidence and set aside a finding only if the evidence is so weak or the evidence to the contrary so overwhelming that the finding must be set aside. Id. If, after applying that test, we find the evidence factually insufficient, we must detail the relevant evidence and clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance of the evidence as to be manifestly unjust, why it shocks the conscience, or clearly demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).

As stated, the underlying eviden-tiary dispute was whether there was an oral promise by the parties to work together toward the acquisition of the Tubbs lease. The parties did not agree in their version of the discussions pertaining to the mutual promises to jointly acquire the Bui-lard interest. Deb Ziegler, Roach’s office employee, testified to having received three telephone calls from Chandler to discuss the Tubbs negotiations. One recorded message on March 14 stated: “Deal is coming together. Price seems to be good.” She said that the terms of the negotiations were discussed in the various calls. Ziegler testified that Chandler’s secretary delivered a form for the proposed lease assignment to the Roach office on March 15, which she, in turn, faxed to Roach in Colorado. Roach’s wife, Anda, who also worked in Roach’s office, likewise testified to numerous conversations with Chandler about the progress of the Tubbs trade. She stated that Chandler told her that the terms of the Tubbs assignment were the same as the Loden leases. Anda faxed the proposed wording for the Tubbs assignment to Roach, who responded with the terminology he desired to be included in the Tubbs lease. We conclude that there is sufficient evidence that Procom often conferred with Roach and his associates about the progress of the negotiations in acquiring the Tubbs lease, which supports the jury’s finding that the parties promised to work jointly upon the project. Procom has sought to explain the discussions about the Tubbs negotiations by asserting that after they acquired the Tubbs interest, they had hoped to farm it out to Roach. Since the subject interest is an overriding royalty, however, a farmout of the interest to Roach would not have been appropriate.

As stated, there was legally and factually sufficient evidence of a confidential or fiduciary relationship between the parties as to the Tubbs acquisition; Procom’s judicial admission in pleading the existence of such relationship on the Loden prospect and the testimony that Roach shared title and geological information with Procom supports the jury’s finding of a confidential or fiduciary relationship between the parties.

Next, we consider whether the evidence is legally or factually sufficient to support the jury finding of fraud. Here, Procom’s sole contention is that the finding of fraud is not supported by the evidence because the Tubbs promises between the parties as urged by Roach were not enforceable because they were in derogation of the Statute of Frauds. Procom asserts that the claimed oral agreement to work together on Tubbs is also the basis for the fraud theory of recovery and that if the oral promise cannot stand in contravention of the Statute of Frauds, then the fraud cause of action must also fail. Furthermore, Procom urges that there is no evidence, or the evidence is legally insufficient to support the verdict because the court was barred from giving weight to the only evidence offered to prove the vital fact, the oral promises. Procom contends that it was therefore error to submit the fraud question to the jury, as was the trial court’s denial of both its motion for instructed verdict and its motion for judgment notwithstanding the verdict.

We have heretofore held that a constructive trust imposed upon Procom’s Tubbs interests predicated upon both the abuse of a confidential or fiduciary relationship and fraud circumvents the Statute of Frauds and validates the alleged oral agreement under the circumstances presented here. Procom does not attack the evidence supporting the other specific elements of a fraud cause of action. Pro-com’s second issue is overruled.

By their third issue, Procom asserts that there is no evidence, or alternatively, insufficient evidence to support the jury’s finding of a resulting trust. As stated, that issue need not be addressed.

Likewise, in their fourth issue, Procom complains that the trial court erred in failing to confirm its record title to the full overriding royalty interest conveyed in the Bullard assignment and ordering payment of $83,000 damages to Procom. Contrarily, their fifth issue asserts that there is no evidence or insufficient evidence to support the jury’s award of $24,000 damages due Procom. There is evidence to support both recoveries. The calculation of $83,-000 damages, however, is predicated upon Procom prevailing on the Statute of Frauds defense. It is undisputed that Procom’s recovery of $24,000 is calculated by reducing its $83,000 recovery by the interest the jury found should have been assigned by Procom, to Roach. As explained, we have held that the trial court did not err in imposing the constructive trust upon Procom’sj ownership thereby authorizing the reduction in Procom’s recovery on Tubbs to $24,000. We must therefore overrule Procom’s fourth and fifth issues.

Procom’s sixth issue complains that the trial court erred in assessing exemplary damages against Chandler because Roach sustained no actual damages from the transaction. The jury awarded Roach $24,000 in exemplary damages, which the jury found to be predicated upon the finding that Chandler had committed fraud against him.

Procom contends that the recovery of actual damages is a prerequisite to an award of exemplary damages. See Nabours v. Longview Savings and Loan Assn., 700 S.W.2d 901, 903 (Tex.1985); Doubleday & Company, Inc. v. Rogers, 674 S.W.2d 751, 753-54 (Tex.1984). It is required that the party seeking punitive damages must allege, prove, and secure jury findings on the right to recover and the amount of his actual damages. Nabours, 700 S.W.2d at 903; Martin v. Texas Dental Plans, Inc. 948 S.W.2d 799, 805 (Tex.App.—San Antonio 1977, writ denied). The jury did not find that Roach sustained actual damages in this transaction.

Roach, however, contends that Texas courts will not deny such punitive damages when an action sounds in equity as here. Nabours, 700 S.W.2d at 905. Note 3 of the Nabours opinion authorizes punitive damages where these damages are incident to equitable relief when it involves the return of property. Nabours, 700 S.W.2d at 904. Here, Roach’s equitable relief does not pertain to the return of property. The “return of property” exception, however, is not as narrow as Nabours seems to imply. In International Bankers Life v. Holloway, 368 S.W.2d 567, 584 (Tex.1963), the court sanctioned the recovery of punitive damages in an equitable action in which the plaintiff sought to recover usurped corporate profits. The court held that, “[i]t is consistent with equitable principles for equity to exact ... an additional exaction for unconscionable conduct. There should be a deterrent to conduct which equity condemns and for which it will grant relief.” Id. Thus, under the Holloway opinion, we conclude that punitive damages may be recoverable where equitable relief is granted and the promised interest has not been conveyed, despite the absence of jury findings of actual damages. Procom’s sixth issue is overruled.

Procom’s seventh issue is conditional. If our holding here had been to decline to enforce Procom’s alleged oral promises, we should reduce Roach’s $31,000 attorneys’ fee award in the trial court judgment. As we have upheld the trial court’s enforcement of Chandler’s oral promise to convey an overriding royalty to Roach, this seventh issue must be overruled.

Roach’s Cross-Issues

In Cross-Appellant’s first issue, Roach asserts that the trial court erred in awarding Procom $15,500 in attorney’s fees. The trial court reduced by one-half the jury’s finding of Appellants’ attorneys fees in the amount of $31,000 in accordance with the parties’ agreement that attorney’s fees should be so reduced to eliminate fees attributable to Procom’s working interest claim upon which Roach had prevailed previously. Roach ardently argues that since there is no producing well on the Tubbs tract, Procom is not entitled to participate in the unit absent a contractual agreement with the party paying the production proceeds attributable to Procom’s overriding royalty interest. Superior Oil Company v. Roberts, 398 S.W.2d 276, 278 (Tex.1966).

In Superior Oil, the plaintiffs were one-half interest owners of individual lots who declined to execute a mineral lease on their property and thus had no contractual relationship with the lessee; their co-tenants had executed oil and gas leases to the oil company. The Supreme Court held that since there was no contractual relationship between the plaintiffs and the lessee and there were no wells drilled on or near their property, they were not tenants in common and were not entitled to recover proceeds from unit production. Here, the heart of the suit is Roach’s admitted relationship and agreement with Procom and the parties’ promises, though not found to be contractual, to jointly acquire the Tubbs overriding royalty interest and, Roach contends, to assign the ownership of those interests in accordance with their mutual promises. Roach testified that he was the payor of production from the subject gas unit. He has paid Procom nothing from production from this gas unit. Unlike Superior Oil, the jury specifically found that Roach owed Procom $24,000 for production proceeds from the ownership of its overriding royalty interest in Tubbs. This jury finding has not been challenged by Roach on appeal. We conclude that the evidence and findings of the jury distinguish the holding in Superior Oil from the instant case.

Further, Roach contends that no monies nor attorneys’ fees are owed Pro-com because Procom has asserted a claim to the Tubbs lease working interest. As stated, Roach owns his working interest through an unrelated chain of title. Pro-com earlier claimed the working interest in Tubbs but that assertion was concluded by an adverse summary judgment prior to the jury trial; no appeal has been perfected by Procom on this ruling and it is not before us. Roach additionally complains that Procom has sought to recover the entire override it received in the Bullard assignment and that under Tex. Nat. Res.Gode Ann. § 91.402(b) a payor may withhold payments where there is a dispute as to the payee’s interest. The trial court judgment provided that Procom recover only a 6.25% overriding royalty interest and the proceeds from it. As stated, Roach has not contested that Procom is owed that specific interest in Tubbs; in fact, at trial Roach conceded that he owes the $24,000 in proceeds from production to Procom. Procom’s 6.25% override does not affect Roach’s 75% net working interest. Pro-com, as recognized owners of a 6.25% overriding royalty interest, has been entitled to recover that undisputed interest and the proceeds from that interest. It was appropriate for Procom to seek to recover his undisputed claim for the proceeds. We overrule Roach’s first cross-issue.

Roach’s second cross-issue pertains to Procom’s recovery of production proceeds from the Loden leases. He asserts that the evidence was legally and factually insufficient to support the jury finding that Chandler made valuable improvements to the Loden leases. The jury awarded $26,000 to Procom for unpaid proceeds from its overriding royalty interest in the Loden leases. An exception to the Statute of Frauds, for the purpose of preventing actual fraud, is the making of valuable and permanent improvements to the property by the party seeking to avoid the invocation of the Statute. Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1117 (1921). The parties agree that there is a dearth of authority as to requisite proof of such improvements in this context.

Roach testified that before he and Chandler agreed that they would seek to quiet title to the Loden leases, there were various claimants to the Woodbine production on the Loden leases that held the Loden leases. Roach asserted that it appeared that the various claims “were destined for a lawsuit”. Chandler agreed to acquire the Loden leases which he did. Chandler shut-in the Woodbine wells and took the appropriate steps to eliminate the various claims under the old leases. Roach then re-leased the Loden tract for the deeper Cotton Valley production. Three wells were drilled, the leases were pooled into the Roach’s Stinchcomb Cotton Valley gas unit and at the time of trial, Roach had received 2.2 million dollars in proceeds from production. The Loden leases were significantly more valuable than the Woodbine leases that had held the prior leases. Chandler testified that he continued to be liable for more than $15,000 in plugging costs in eliminating the prior Woodbine leases. We conclude that Chandler’s services in clearing the leasehold interests in the Loden tracts constituted valuable and permanent improvements to the Loden and were sufficient legal and factual evidence to support the jury’s damage award to Procom for unpaid proceeds for its undisputed overriding royalty interest in the Loden leases. Roach’s second cross-issue is overruled.

The judgment of the trial court is affirmed.

      . See also Tex. Prop.Code Ann. §§ 112.004 and 5.021 (Vernon 1984).


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    In the Interest of A.Y., Y.Y., D.M.Y.
    No. 08-98-00358-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 24, 2000.

      John T. Garcia, El Paso, for Appellant.
    Jose R. Rodriguez, County Atty., Clinton Cross, Asst. County Atty., El Paso, for State.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from an order terminating the parental rights of Dennis Bon-don. In his sole point of error, Bondon complains that he received inadequate notice of the termination suit. Finding no error, we affirm.

SUMMARY OF THE EVIDENCE

Suit was brought by the Texas Department of Protective and Regulatory Services to terminate the parent-child relationship between Dennis Bondon and his children A.Y., Y.Y., and D.M.Y. In its third amended petition, the Department alleged that it did not know the date of birth, place of birth, Social Security number, or present residence of Bondon. The petition also stated that the Department would continue to search for his whereabouts. Claudia Munoz, the caseworker assigned to the suit, discovered that Bon-don had lived in Memphis, Tennessee. She attempted to locate Bondon by contacting the public utilities and a former employer. Munoz was unable to locate him.

The Department filed a motion for substituted service, and an affidavit for citation by publication executed by Munoz. The motion was granted by the trial court on February 18, 1998. Citation was published in El Paso Inc. on March 8, 1998. Bondon did not respond to the citation. Pursuant to Tex.R.Cxv.P. 244, the trial court appointed counsel to represent Bon-don’s interests in the termination suit. A bench trial ensued on August 26, 1998, and a final decree terminating Bondon’s parental rights was signed on August 26, 1998. Counsel for Bondon filed a motion for new trial complaining that Bondon received inadequate notice of the termination suit. The trial court denied the motion, and this appeal follows.

ADEQUACY OF NOTICE

In his sole point of error, counsel for Bondon complains that the citation was inadequate to give Bondon notice of the termination suit. Counsel argues that publication should have been made in Memphis, Tennessee, the last known place that Bondon lived.

“The general rule is that the legislature in its discretion may prescribe what notice shall be given to a defendant in a suit, subject to the condition that the notice prescribed must conform to the requirement of due process of law. The requirement of due process of law is met if the notice prescribed affords the party a fair opportunity to appear and defend his interests.” Sgitcovich v. Sgitcovich, 150 Tex. 898, 241 S.W.2d 142, 146 (1951), cert. denied, 342 U.S. 903, 72 S.Ct. 291, 96 L.Ed. 676 (1952). The Texas Legislature has declared that in suits affecting the parent-child relationship, citation by publication may be served as in other civil cases. See Tex.Fam.Code Ann. § 102.010(a)(Vernon 1996). When a statute directs that citation by publication be issued or served as in other civil cases, the requisites of the Rules of Civil Procedure govern, unless the statute expressly provides otherwise. See Tex.R.Civ.P. 110. Generally, a nonresident defendant is entitled to the same notice as a resident defendant. See Tex.R.Civ.P. 108. In all suits which do not involve the title to land or the partition of real estate, citation by publication shall be made in the county where the suit is pending. See Tex.R.Civ.P. 116.

First we note that counsel’s brief raises purely a question of law. Counsel contends that because the evidence shows that Bondon’s last known residence was somewhere in Memphis, Tennessee, the trial court should have ordered that citation be published in a Memphis newspaper. To support his contention, counsel cites Leithold, v. Plass, 488 S.W.2d 159,164 (Tex.Civ.App.—Houston [14th Dist.] 1972, writ refd n.r.e.) for the proposition that the trial court has a duty to determine the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant before granting a judgment on constructive service by publication. See also Tex.R.Civ.P. 109; In the Matter of the Marriage of Peace, 681 S.W.2d 790, 792 (Tex.App.— Amarillo 1982, no writ). From this authority, counsel infers that when there is evidence showing that a defendant last resided in a city outside the State of Texas, citation by publication would only be proper at that place. We disagree.

The Family Code allows for citation by publication as in other civil cases. See Tex.Fam.Code Ann. § 102.010(a). Therefore, the Rules of Civil Procedure apply and Rule 116 makes citation by publication proper if published in the county where suit is pending. See Tex.R.Civ.P. 108, 110, and 116. Citation was published in El Paso County, and the suit to terminate Bondon’s parental rights was filed in El Paso County.

Next, counsel complains that the trial court could not have found due diligence after Munoz testified that Bondon’s last known address was somewhere in Memphis. See Tex.R.Civ.P. 109. Again we disagree. The Rules of Civil Procedure do not make any presumptions concerning the best place to locate persons whose addresses are unknown. Instead, Rule 109 requires the trial court to determine the diligence used by the plaintiff in trying to locate the defendant’s residence. If the trial court finds a lack of diligence, then the plaintiff must undertake additional efforts to comply with Rule 109. If the plaintiff is successful in his efforts to locate the defendant, then regular service of process is required. See TexR.CivP. 106 and 108.

In the present case, the record reveals that the trial court questioned Munoz about the efforts she made to locate Bon-don. Munoz testified that she tried to locate Bondon by contacting a former employer and the public utilities in Memphis. She was unable to obtain any information concerning Bondon’s present residence. The trial court ruled that reasonable efforts had been made by the Department, and that the notice given was proper and sufficient. We conclude that counsel has not demonstrated an abuse of discretion by the trial court. See Lindsey v. Lindsey, 965 S.W.2d 589, 591 (Tex.App.—El Paso 1998, no pet.).

We also conclude that Bondon has been afforded a fair opportunity to appear and defend his interests. Sgitcovich, 241 S.W.2d at 146. While notice by publication is unlikely to make a defendant aware of pending litigation, it has long been recognized as a constitutionally permissible form of notice where there are no other means available to put on notice a defendant who cannot be found. See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-16, 70 S.Ct. 652, 657-59, 94 L.Ed. 865 (1950). Counsel urges us to consider the weight of the interests at stake here—termination of parental rights. While we are well aware of the constitutional protections favoring the parent-child relationship, and although common sense dictates caution in reviewing a termination action, the record reveals that Bondon has not seen, communicated with, nor supported the children for many years. We conclude that his due process rights have not been violated.

Accordingly, we overrule Point of Error No. One and affirm the judgment of the trial court.

      . El Paso Inc. is a newspaper published in the city and county of El Paso.


text:
    Joyce Marie DOYLE, Appellant, v. THE TEXAS DEPARTMENT OF PROTECTIVE AND REGULATORY SERVICES, Appellee.
    No. 08-99-00037-CV.
    Court of Appeals of Texas, El Paso.
    Feb. 25, 2000.
    Rehearing Overruled May 3, 2000.

      Mara Asya Blatt, Law Offices of Mara Asya Blatt, Stuart L. Leeds, El Paso, for Appellant.
    Maria B. Ramirez, Jose R. Rodriguez, County Atty., Michael J. Alvarez, El Paso, for Appellee.
    Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

“Now this Court is faced with the question of, should a person sell their parental rights for a monthly adoption subsidy? And what price should a person put on their parental rights?”

With these words, trial counsel for Joyce Marie Doyle set the stage in defense of this suit to terminate her parental rights to T.D. and J.D., two of her four children. Finding the evidence legally insufficient to support termination under either of the statutory grounds enunciated in the trial court’s order, we reverse and render.

FACTUAL SUMMARY

Doyle is the mother of four children, eighteen-year-old L.D., seventeen-year-old P.D., sixteen-year-old T.D., and fourteen-year-old J.D. After L.D. alleged in September 1995 that Doyle had physically abused her, the Texas Department of Protective and Regulatory Services (“Department”) became involved with this family. Although that allegation was not validated, the Department validated a subsequent complaint the next month involving extensive bruises on L.D. which were likely caused by a belt. The Department removed L.D. from the home at that time, but it did not attempt removal of the other children because there was no concern that Doyle would harm them.

During the course of the next three years, all four children were removed and placed outside of the home due to allegations of physical abuse and neglect, and concerns about Doyle’s purported alcoholism. Doyle complied with some aspects of the service plan designed for family preservation, but ultimately, the Department was unable to reunify the family due to Doyle’s alleged failure to provide a stable home.

T.D. and J.D. were eventually placed with a maternal niece in St. Louis, Missouri. The children adjusted well to that placement and the niece agreed to not only provide for the children’s needs until they reach eighteen years of age but also to adopt the children. The niece additionally agreed to allow Doyle contact with the children so that the familial bond was not broken. On November 10, 1998, the Department filed suit for termination of Doyle’s parental rights to T.D. and J.D. on the grounds of physical and emotional endangerment. See Tex.Fam.Code Ann. § 161.00100(D), (E)(Vemon Supp.2000). Following a bench trial, Doyle’s parental rights to T.D. and J.D. were terminated.

SUFFICIENCY OF THE EVIDENCE

In her sole issue for review, Doyle complains that the evidence is legally and factually insufficient to establish the statutory requisites for involuntary termination. The natural right that exists between parents and their children is one of constitutional dimension. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Clark v. Dearen,

715 S.W.2d 364, 366 (Tex.App. — Houston [1st Dist.] 1986, no writ). For this reason, statutes authorizing involuntary termination are construed in favor of the parent and any effort by the State to terminate the relationship is strictly scrutinized. Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985); Ybarra v. Texas Department of Human Services, 869 S.W.2d 574, 576 (Tex.App. — Corpus Christi 1993, no writ); Clark, 715 S.W.2d at 368. Section 161.001 of the Texas Family Code sets forth the grounds upon which the court may involuntarily terminate a parent-child relationship. Tex.Fam.Code Ann. § 161.001. Relevant to this appeal, Section 161.001(1) allows termination if the parent has:

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child.

Tex.Fam.Code Ann. § 161.001(1)(D), (E).

In addition to establishing one or more of the grounds under Section 161.001(1), the petitioner must establish that termination is in the best interest of the child. Tex.Fam.Code Ann. § 161.001(2). Each of these elements must be established by clear and convincing evidence. Tex.Fam.Code Ann. § 161.001; see Holick, 685 S.W.2d at 20; In the Interest of B.R., 950 S.W.2d 113, 117 (Tex.App. — El Paso 1997, no writ). “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam.Code Ann. § 101.007 (Vernon 1996); B.R., 950 S.W.2d at 117. It is an intermediate standard of proof, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. B.R., 950 S.W.2d at 117. In this case, the trial court found the evidence sufficient on both of the alleged grounds. Therefore, we will affirm if legally and factually sufficient evidence supports either of those two grounds and the finding that termination is in the best interest of the children.

Standard of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. There are basically two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law”. When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding”. See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207 (Tex.App. — Fort Worth 1987, no writ). The standard of review requires a determination by the appellate court as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof in a light most favorable to such findings and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Southwest Craft Center v. Heilner, 670 S.W.2d 651 (Tex.App. — San Antonio 1984, writ refd n.r.e.); Terminix v. Lucci, 670 S.W.2d 657 (Tex.App. — San Antonio 1984, writ refd n.r.e.); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670 (Tex.App. — Houston [1st Dist.] 1986, writ refd n.r.e.). If more than a scintilla of evidence supports the finding, the “no evidence” point fails. Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso, 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App. — El Paso 1994, writ denied).

Section 161.001(D) & (E)

For purposes of Section 161.001(1)(D) and (E), “endanger” means to expose to loss or injury or to jeopardize a child’s emotional or physical health. Texas Department of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex.1987); Hann v. Texas Department of Protective and Regulatory Services, 969 S.W.2d 77, 82 (Tex.App. — El Paso 1998, writ denied); Edwards v. Texas Department of Protective and Regulatory Services, 946 S.W.2d 130, 138 (Tex.App. — -El Paso 1997, no writ). While “endanger” means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at 533.

Environmental Endangerment

Section 161.001(1)(D) requires a showing that the environment in which the child is placed endangered the child’s physical or emotional well-being. Hann, 969 S.W.2d at 82; In the Interest of H.C. and S.C., 942 S.W.2d 661, 664 (Tex.App.— San Antonio 1997, no writ). This provision addresses the child’s surroundings and environment rather than parental misconduct, which is the subject of Section 161.001(1)(E). See Ybarra, 869 S.W.2d at 577. In support of this ground, the Department relies solely on evidence pertaining to the home in which the children lived in July 1995. When the Department first became involved with the family in 1995, Doyle and the children shared a small one- or two-bedroom apartment with eight to ten other people. The apartment was infested with roaches and the oven and stove were inoperable. Doyle admitted to an investigator for Child Protective Services that the crowded living conditions and resulting stress caused her to strike L.D. on one occasion. Doyle acknowledged that the home was an inappropriate place for the children to live but she rejected suggested alternatives, including the Salvation Army, the Rescue Mission, and the Transitional Living Center, as being “beneath her.” With the assistance of the Department, the family eventually moved out of this apartment in November of 1995.

The Department offered no testimony, expert or otherwise, to establish that the conditions in this home endangered the physical or emotional well-being of the children. While there is evidence that the family lived in an over-crowded home and that this stressor caused Doyle to strike her eldest daughter on one occasion, this evidence is not legally sufficient to demonstrate endangerment to the remaining children. This is particularly true in light of the following testimony by Wayne Brock, the Child Protective Services specialist assigned to the investigations unit:

QUESTION BY THE AD LITEM: Now, you stated that when you investigated, you only removed [L.DJ; is that correct?
ANSWER BY WAYNE BROCK: That’s correct.
Q: So obviously you weren’t afraid that Ms. Doyle was going to hurt the other children since you didn’t remove the other children, correct?
A: That’s correct.

Similarly, the evidence demonstrating that the apartment was roach-infested and that the stove and oven did not work, while certainly not an ideal environment for children, does not rise to the level of endangerment to the physical well-being of T.D. and J.D. sufficient to establish a violation of the statute. The Department offered no evidence that the children were malnourished as a result of not having a stove in the home or that conditions in the apartment were so unsanitary or otherwise inadequate that the children’s health was threatened. Compare In re M.C., D.C. and C.W., 917 S.W.2d 268, 270 (Tex.1996)(mother jeopardized her children’s health by allowing them to live in extraordinarily unsanitary conditions where evidence showed that home was infested with roaches, the children ate food off the floor and out of the garbage, floor and furniture were littered with food, dirty clothes, garbage, and feces, and children were extremely unclean to the point that they often wore soiled diapers and clothes, and sometimes had dried food, feces, and mucus on their skin and clothes). In fact, Wayne Brock testified that while the apartment was not neat and orderly, “it wasn’t like a neglectful situation where there was soiled clothing or food all over. It was in fairly good condition.” Moreover, Doyle resolved the housing deficiencies by moving from the apartment with the children three full years before the Department ever filed the termination suit. Accordingly, we find the evidence legally insufficient to establish a violation of Section 161.001(1)(D).

Endangerment by Parental Act or Omission

Under Section 161.001(1)(E), the cause of the danger to the child must be the parent’s conduct alone, as evidenced not only by the parent’s actions but also by the parent’s omission or failure to act. Hann, 969 S.W.2d at 82; Edwards, 946 S.W.2d at 138. In support of this ground, the Department relies on testimony that Doyle physically abused T.D. and J.D. or placed them with other persons who abused them, neglected them, and failed to provide them with a stable home.

Wflien Doyle moved from the overcrowded apartment, she and the children lived with her cousin, Patricia Doyle. On November 21, 1995, the Department received an intake that Patricia Doyle had physically abused T.D. Doyle and the caseworker, Domase Britton, decided that the family should move to the Rey-nold’s House. A few weeks later, Doyle left the children at the Reynold’s House while she went to Albuquerque, New Mexico, to visit her father who had fallen ill from a stroke. When Britton discovered that Doyle had left the children unattended, she placed them in foster care with Doyle’s sister, Mary Doyle Hall. Doyle had no contact with her children during her 'absence. After Doyle returned to El Paso on January 8, 1996, she was not permitted to resume her residence at the Reynold’s House because she had violated its mies by drinking alcoholic beverages in her room. Consequently, Britton placed T.D. and J.D. at the Child Crisis Center for approximately two weeks. Other facilities refused to accept the children because of an unfavorable history with Doyle, so Britton eventually placed both children with their maternal grandmother, Mildred Doyle. During this time, Doyle did not have a stable residence but she occasionally stayed with her mother. When Doyle obtained an apartment which the Department considered appropriate, the children returned to live with her. Within a short time, however, Britton received a subsequent intake alleging that Doyle had struck L.D. with a wooden spoon and that she had struck P.D. with a leather strap. As a result, the Department filed a petition for removal, and on May 17, 1996, L.D. and P.D. were removed from the home. The Department did not try to remove the two younger children, T.D. and J.D., because Doyle had obtained suitable housing, the younger children were not in immediate danger, and both had a strong bond with their mother. In June of 1996, Doyle attended a service plan meeting with the Department and indicated her willingness to comply with the elements of the plan, including enrolling in counseling sessions and submitting to a psychological evaluation.

Following a hearing on July 11, 1996, the trial court ordered Doyle to find employment within thirty days, to refrain from using alcohol, and to submit to breathalyzer testing. Doyle did not submit to any of the fifteen breathalyzer exams scheduled for her between July and the next hearing in December of 1996 because Doyle obtained a chemical assessment which revealed that she was not chemically dependent on either drugs or alcohol. She also did not obtain employment as ordered. Also in July 1996, Doyle threw T.D. out of their home so that the child was forced to live with a cousin. When T.D. returned to live with her mother in mid-July, Doyle allegedly struck her on two different occasions. T.D. reportedly had bruises and scratches from the second incident. That same month, T.D. reported the two incidents to Claudia Munoz, the then-current caseworker, and stated that she was afraid to go back home because of what Doyle might do upon finding out that the child had reported it. When confronted by Munoz, Doyle denied striking T.D. but admitted pushing her. The Department removed T.D. and J.D. from the home and placed them in the Child Crisis Center for a few days and then in a foster home before finally placing them in the El Paso Center for Children in September of 1996 where they remained until June of 1998.

While in the El Paso Center for Children, the children received counseling from Warren Brown, director of the foster care program. Brown observed that T.D. and J.D. had what he termed developmental and environmental problems as well as a lack of socialization skills. J.D. “acted out” by stealing and T.D. had “intermittent explosive disorder with some depression also.” More specifically, T.D. destroyed property and acted aggressively toward younger children in the foster homes. According to Brown, improvements in the children’s behavior occurred during the periods when they did not have contact with Doyle. He viewed Doyle’s sporadic visitation with the children as provoking further difficulty for both children in the context of their foster care because she acted as their rescuer so they did not have to accept the natural and logical consequences of their behavior. The children were strongly bonded with their mother and she gave them the message that they did not need to bond with anyone else. Following these visits, the foster parents reported that the children had increased anxiety because Doyle had told them that they would be able to return to live with her. As a result of these difficulties, T.D. had fifteen different placements while J.D. had to be moved five times because the foster parents could not work with them.

While the children were in foster care, Doyle moved into a home which she shared with one or two of her brothers. Following a drug raid at the home in which drugs were found in the possession of one of the other residents, the Department decided against reunification. Doyle later moved into a different home with one of her mother’s friends and Patricia Doyle. The Department refused to allow the children to return to that home so long as Patricia resided there. During this entire time period, Doyle made little effort to secure employment despite encouragement from her caseworker and even though it was a condition of her service plan. On June 26, 1998, the children were placed with Doyle’s niece and her husband, LaQuita and John Downing, in St. Louis, Missouri. They remained there until the time of trial.

Physical Abuse

With regard to the allegations of physical abuse, the evidence reveals validated claims that Doyle struck L.D. in October 1995 and in April 1996. There was additionally a validated claim that Doyle struck P.D. with a leather strap in April 1996. However, termination was not sought as to either of these children. There were no allegations of physical abuse toward J.D. As for T.D., although the child later denied it, she related to a caseworker a description of a physical confrontation at worst and physical discipline at best. Although Doyle denied striking T.D., she admittedly pushed her. And while there were no allegations of physical abuse after July 1996, it does not appear that any of the children resided with Doyle after that date.

Nevertheless, despite these allegations, the Department did not seek termination until more than two years later. In fact, even at trial, the Department was not relying upon these instances of physical force as a basis for termination. One of the caseworkers, Claudia Munoz, testified that the Department pursued a plan of family reunification up until September 1997. The obstacle to reunification with the mother was that “Ms. Doyle has not been able to demonstrate to the Department that she’s able to provide a stable home for the children and that she’s able to keep a stable job and provide for the children’s needs.” The State emphasized stability, not physical abuse, in its final argument:

The focus of the Family Code ... is permanency. And as you well know, the policy of this Court is that permanent foster care is not a permanency plan. There is no way that the Department can advocate that a 13-year-old child remain in foster care for five more years.

While we certainly do not condone the physical abuse directed by Doyle toward her children, neither do we believe that the Department can rely upon a handful of instances more than two years before trial when in the intervening months, Doyle completed counseling and nurturing classes and- submitted to a psychological evaluation. We must also confess that we are troubled by the caseworker’s testimony that the Department did not even pursue termination until ordered to do so by an associate judge and only then as a result of the drug raid at the home in which Doyle lived, not as a result of any physical abuse.' We turn now to the stability argument.

Stability

The Department next urges that Doyle’s failure to locate and maintain stable employment so that she could provide for the children’s needs and her failure to provide-a stable home for the children violates Section 161.001(1)(E). Ordinarily, the stability of the home is one of the factors that should be examined in ascertaining the best interest of a child. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); Hann, 969 S.W.2d at 83. Depending on the evidence, it is possible that a parent’s failure to provide a stable home and otherwise provide for the children’s needs may contribute to a finding that termination is appropriate. See Ziegler v. Tarrant County Child Welfare Unit, 680 S.W.2d 674, 678-79 (Tex.App. — Fort Worth 1984, writ refd n.r.e.)(repeated and severe abuse of one child by both of mother’s husbands, coupled with mother’s history of general instability, her inability to hold a job, her general insecurity, and her propensity for dependency upon men she knew to be wife and child abusers, supported termination of mother’s rights to all of her children). We are not presented with those kinds of facts in this case.

It is undisputed that Doyle did not obtain stable employment during the Department’s early involvement with her family, and consequently, the family had a presumably meager income. The Department did not, however, offer any evidence to establish the level of the family’s income or show how the family’s poverty impacted the children either physically or emotionally. For example, there is no evidence that the children were not adequately fed or clothed as a result of Doyle’s failure to obtain employment and we have already determined that the evidence is legally insufficient to support a finding of endangerment from the children’s environment. In the absence of such evidence, we will not conclude that a showing of poverty, standing alone, demonstrates endangerment under this section. See Clark, 715 S.W.2d at 366-68 (absent medical or psychological evidence of harm, extreme poverty is not a sufficient ground for termination of parental rights); see also Ybarra, 869 S.W.2d at 578-80 (absent medical or psychological testimony to establish effect on children, evidence of extreme poverty is factually insufficient to show endangerment from environment). While there is evidence that T.D. and J.D. experienced developmental and behavioral problems, there was no testimony relating the children’s difficulties to their poverty or to Doyle’s alleged failure to provide for their physical needs or to provide them with a stable home.

In fact, the record reveals that by the time of trial in December 1998, Doyle was earning §643 a month babysitting her niece’s children. She had been steadily working since October 1997. She had completed nurturing classes, had attended therapy sessions, had been successfully discharged from therapy, and had completed her high school equivalency degree. As a result of her efforts, she anticipated the return of her children. But as Doyle’s attorney commented in his opening statement, the tables were turned:

But the bottom line is that at this point in this case, it’s all about money. Because Joyce Doyle, the mother of these children, agreed to have those children placed in a relative placement, to be placed with her niece in St. Louis, Missouri, the Department wanted her to do that and she did it. And they told her, We won’t terminate your rights, or, We won’t seek termination if you agree to this relative placement. And she did so. Now they are reneging on their contract. They are reneging on them promise.
She entered into that contract in good faith, and she agreed and is fulfilling her part of it. She signed off and allowed her kids to go to St. Louis just like the Department wanted them to.
Again, the county attorney had said, You either relinquish your rights or you pay child support.
She said, I can’t. I can’t afford to pay child support. You told me to get a house. The little money I make goes to that. Now you want me to pay child support. She said, I can’t afford both. And then, finally, she came around and said, Okay, I’ll pay child support.
At that point the County Attorney’s office got mad, and they said, No, forget it. It’s no longer or [sic] pay child support. It’s now relinquish or terminate.

Despite the fact that the State did not seek termination on the basis of her nonpayment of child support, it nevertheless focused on the support issue in its final argument:

The Respondent Mother, yes, she complied with most of the elements of her service plan. But it is a basic part of being a parent to be able to provide a suitable home and to provide for the children financially. And there has been no effort on behalf of the Respondent Mother. In two years, not one penny of child support paid.

Not surprisingly, Doyle’s attorney framed the issue somewhat differently: “The only reason we are here is that this lady refuses to relinquish her parental rights in exchange for an adoption subsidy.” The following testimony of Claudia Munoz, one of the caseworkers, reflects the debate of stability vs. subsidy:

QUESTION BY THE STATE: Ms. Munoz, in light of your testimony that the Respondent Mother and the children are significantly bonded, why is it your position that it’s in the best interest of the children to terminate parental rights?
ANSWER BY CLAUDIA MUNOZ: Because the Department has been involved for over two years now. The children are now in the home of a relative who is willing to provide the kids for their needs until they age out. They are also willing to adopt the children if they become legally free. And they are in agreement with Ms. Doyle keeping contact with the kids, which would allow the children to keep that bond that they have with Ms. Doyle.
Q: Then why not just name the relative as permanent managing conservator without termination?
A: Because it would be a financial hardship for the family.
Q: How would termination remedy that problem?
A: They could receive adoption subsidies.
QUESTION BY DOYLE’S COUNSEL: And basically, what it comes down to is the adoption subsidy; isn’t that correct?
ANSWER BY CLAUDIA MUNOZ: Basically, what it comes down to is that the kids need to be in a stable home.
Q: They are, right?
A: Yes. And that the Department does not need to stay involved in their lives until they are 18.
Q: So the Department wants out of this case?
A: I don’t think there is any need for us to stay in the case if there is a stable home for them.
Q: Is that a reason to terminate her parental rights, because the Department doesn’t see a need to stay in the case?
A: Ms. Doyle hasn’t demonstrated that she can take her kids back at this time.
Q: That’s not what I’m asking you. I’m asking you, when the county attorney asked you to articulate the reasons why it was in the best interest to terminate, I believe you stated that it came down to the adoption subsidy?
A: It came down to providing stability for the kids.
Q: The kids already have stability, right?
A: Well, if the Department stays involved, there is a risk that the kids could be removed from that home later.
Q: Okay. You are suggesting that the Department should not stay involved in this case?
A: I’m suggesting that if there is a home for the kids and there’s a family who is willing to adopt the kids, that the kids deserve that opportunity.
Q: But these kids don’t want to be adopted, do they?
A: They want to go back to their mother.
QUESTION BY THE AD LITEM: Now, the children have stability right now with a relative placement; is that correct?
ANSWER BY CLAUDIA MUNOZ: Yes.
Q: If the Department does not want to be involved in their lives anymore, you can dismiss the case and you can make the relative permanent managing conservator of the children; is that correct?
A: Yes.
Q: And that would mean no more Department intervention, correct?
A: Correct.
Q: But the reason that you are moving for termination is because you want that relative placement to get a monthly stipend, correct?
A: It would be a financial hardship for them.
Q: And the only way to do that is either adoption, correct?
A: Yes.
Q: And there’s another way to do that, correct? If the Department were managing — permanent managing conservator, then you could leave the children in that placement and you could provide a monthly stipend to that relative placement, correct?
A: Yes.
Q: So the mother’s, rights do not have to be terminated in order for the children to have stability and in order for the children to be financially stable, correct?
A: They don’t have to be terminated for us to get PMC and for them to get foster care reimbursement.

While Doyle’s efforts, or lack thereof, may well have justified the Department’s decision not to pursue family reunification, we are not persuaded that the State has established that Doyle’s instability endangered the physical or emotional well-being of her children.

Abandonment

Finally, the Department asks us to infer physical and emotional endangerment from Doyle’s conduct in leaving the children unattended at the Reynold’s House for a period of three weeks between December 17, 1995 and January 8, 1996. It did not, however, offer any evidence that the children were subjected to physical or emotional endangerment from this conduct. We recognize that there is a potential for physical and emotional endangerment when a parent leaves a child alone for several weeks. But even the Department did not believe that to be the case at the time:

QUESTION BY THE STATE: Did you ask her with whom she had left her children?
ANSWER BY DORNASE BRITTON: Yes. And she had not left them with anyone. They were left at the Rey-nold’s Home.
Q: Now, at that time you still had not filed a petition, is that correct?
A: That’s correct.
Q: Why?
A: Due to the situation, the crisis with her father, I wanted to consider her feelings and emotional things she could have been going through at that time. I did inform her, however, it was not appropriate for her to have left the children without any supervision whatsoever, and that was one of the reasons as well that she was kicked out of the Reynold’s Home.

There is no allegation that Doyle left the children unsupervised on any other occasion. And the Department anticipated family reunification until September 1997, when it determined that Doyle could not provide a stable home environment. It did not pursue termination until November 1998, some thirty-four months later, and only when ordered to do so, not as a result of this event but because of a drug raid at the home in which Doyle was living. Under these circumstances, we find the potential endangerment inadequate to establish a violation of Section 161.001(1)(E). For all of these reasons, there is no more than a scintilla of evidence to establish a violation of Section 161.001(1)(E).

CONCLUSION

Doyle’s sole point of error is sustained and the order terminating Doyle’s parental rights to T.D. and J.D. is reversed and judgment is rendered that the parental rights of Appellant be reinstated.

      . The children's father, James Doe, has not been involved in the lives of the children and he did not appear at the termination hearing. The trial court also terminated his parental rights to both children.

      .The clerk’s record contains only the third amended petition, which was filed on November 10, 1998. Our review of the docket sheet indicates that the second amended petition, filed on December 2, 1997, sought termination and/or managing conservatorship. We cannot ascertain whether the Department sought termination as to Doyle, the children’s father, or both in the earlier pleading. Further, the docket sheet does not indicate the nature of the relief sought in the first amended petition, which was filed October 15, 1997.

      . Claudia Munoz, a caseworker, testified that the Department was ordered by the associate judge to file a petition for termination.

      . P.D. was placed in High Frontier Residential Treatment Center in October of 1996 where he remained until December 14, 1998, the day before the termination trial. The Department did not seek termination of Doyle’s parental rights to P.D.; instead, it sought permanent managing conservatorship which the trial court granted in the same order. Doyle does not appeal that portion of the order.

      . Wayne Brock testified that he ultimately transferred this case to family preservation. Domase Britton was assigned as the in-home preservation caseworker in November 1995.

      . Claudia Munoz took over the case in June 1996.

      .At trial, T.D. denied that her mother had hit her. "And it wasn’t true what I said. And the reason why I said it was because, I don’t know, that day I had got a report card or something. I got my progress report, and I was scared because I had got bad grades, and I didn’t want my mom to hit me. And I told Claudia a lot of things that wasn’t true, and she took us away from my mom.”

      . The children were not living in the home at the time of the raid. Although the caseworker could not remember whether Doyle was there at the time, she was certain that Doyle was not involved with the drugs and she was never charged with an offense.

      . L.D. was 18 by the time of trial. As for P.D., the caseworker testified: [P.D.] is 16. He’s about to be 17 in March. He’s older. I believe that he would benefit from receiving services for preparation for adult living, as well as receiving the benefits of staying in foster care until he's 18.


text:
    Miguel Angel GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 08-97-00239-CR.
    Court of Appeals of Texas, El Paso.
    Feb. 29, 2000.

      Francisco F. Macias, El Paso, for Appellant.
    Jaime E. Esparza, Dist. Atty., John L. Davis, Asst. Dist. Atty., El Paso, for State.
    Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Miguel Angel Garcia appeals his conviction for capital murder of a child under six years of age. Upon the jury’s finding of guilt, the trial court assessed mandatory punishment at life imprisonment in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

LEGAL SUFFICIENCY

Appellant was convicted of the capital murder of his three-month-old daughter, Cassandra. By four points of error, he challenges his conviction. We address his fourth point first since it challenges the legal sufficiency of the evidence to support his conviction.

Standard of Review

In reviewing the sufficiency of the evidence to support a criminal conviction, we must review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Jones v. State, 833 S.W.2d 118, 122 (Tex.Crim.App.1992). Our role is not to ascertain whether the evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990). Nor do we resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App.1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App.1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.

Evidence at Trial

The evidence reveals that on May 20, 1996, Maria Garcia, Cassandra’s mother, was taking a shower when she heard the baby crying. When she got out of the bath to check on the baby, she found Cassandra with Appellant. At the time, Appellant told her that he did not know what happened — that the baby just started crying all of a sudden. In the early morning hours of May 21, 1996, Maria was awakened by the baby’s crying. Cassandra appeared very pale and limp. Appellant shook the baby in an attempt to revive her. The parents then took Cassandra to R.E. Thomason Hospital in El Paso. At the hospital, Appellant told Maria that Cassandra had fallen out of his arms and hit her head on the bassinet. He also told her that he had a criminal record and the baby would be taken away from them unless Maria said that she had dropped Cassandra. Maria agreed and took responsibility for dropping the baby.

Appellant subsequently told Maria that Cassandra had really fallen to the floor and not just to the bassinet. This is consistent with the testimony of Dr. Carl Gel-er, Chief of Neurosurgery at Thomason, who testified that Cassandra had a skull fracture and was bleeding inside her brain. Merely bumping Cassandra against the side of the bassinet would not have caused the skull fracture.

On July 21, 1996, Maria went to work at approximately 9:45 a.m., leaving Cassandra with Appellant. Maria testified that Cassandra was fine when she left. Later that afternoon, Cassandra was rushed by ambulance to Providence Hospital in El Paso. She was not breathing and had no pulse. Efforts to resuscitate her were fruitless and she was pronounced dead by Dr. Jacob Patrick Vigil. At the time, Dr. Vigil noted that Cassandra had blood on her forehead and her nose was bruised.

After Cassandra died, detectives from the Crimes Against Persons division took a statement from Appellant. Beginning his statement in Spanish, Appellant acknowledged that he was taking care of Cassandra while Maria was at work. While he was bathing the baby, she slipped out of his hands and bumped the back of her head. Cassandra slept a little after that, then awoke crying. Appellant fixed her a bottle, but she did not want to eat. All of a sudden, Cassandra went limp. He tried to give her mouth to mouth resuscitation and he squeezed her.

Appellant admitted that several times he had grabbed or held Cassandra because she would not stop crying and that he had squeezed her violently. At this point, Appellant began speaking in English. He stated that he was the one that caused several of the injuries to Cassandra. Every time he was with her, she would begin to cry and he would “lose it.” He grabbed her by her chest and shook her in order to get her to stop crying. He would also grab her by her collarbone and shake and squeeze her hard in order to keep her from crying. He caused most of her injuries by shaking her “real hard and squeezing her. I hardly ever hit her with my fist. I do have a very violent temper and sometimes I do lose it with my daughter Cassandra....”

Appellant also admitted to being the one who dropped Cassandra in May 1996, and the one who caused her injuries on July 21, 1996, the date of her death.

I wish to say that it was I who dropped Cassandra on the 19th day of May 1996 and not my wife. We took Cassandra to the hospital on the next day. I had her by her feet and her head hit the floor. She had been crying a lot that day that I dropped her. I picked her up and lost control of her because she was struggling and I dropped her.... [Tjoday, around 1:00 p.m., Cassandra began to cry a lot and I got angry with her. I yelled at her to stop and I shook her by holding her chest and then her arms. I did hit her with the palm of my hand in the area of her stomach and chest and that was because I was frustrated and then again when she lost consciousness and I became scared. Again, I want to say that it is I who had hurt my daughter Cassandra and not my wife. I am willing to pay for what I have done to my daughter, but again, it was because I am really frustrated with my life and the way my life is going. I did hit my daughter today with my right fist on the chest and stomach and with a karate type chop to the nose area.

Dr. Juan Contin, El Paso County Chief Medical Examiner, testified that the injuries sustained by Cassandra were consistent with shaking. He also confirmed that she had a subarachnoid hemorrhage on the surface of her brain and healing rib and clavicle fractures. Dr. Harry Wilson, an expert in pediatric pathology as it relates to child abuse and child abuse deaths, testified that Cassandra died as a result of Shaken Infant Syndrome. He further testified that Cassandra died within an hour or two of the infliction of her injuries.

Analysis

Texas case law is replete with holdings that when an adult defendant has had sole access to a child at the time its injuries are sustained, the evidence is sufficient to support a conviction for injury to a child, or murder if the child dies. See Bryant v. State, 909 S.W.2d 579, 583 (Tex.App.— Tyler 1995, no pet.)(where evidence showed child had been left alone with defendant and injuries to child occurred approximately thirty minutes prior to child being brought to emergency room, evidence was sufficient to support conviction); Elledge v. State, 890 S.W.2d 843, 846 (Tex. App. — Austin 1994, pet. refd)(undisputed medical testimony placing adult defendant alone with child when fatal injuries were sustained supported conviction for injury to a child); Butts v. State, 835 S.W.2d 147, 151 (Tex.App. — Corpus Christi 1992, pet. refd)(injuries sustained by child established by medical testimony to have occurred at time adult defendant admitted to sole possession of child).

Here, the capital murder indictment alleged that Appellant caused the death of Cassandra, a child younger than six years of age, by shaking her. The evidence demonstrated that Appellant was alone with Cassandra when her injuries were sustained. Further, Appellant admitted to shaking Cassandra, to punching her in the stomach, and delivering a karate-type chop to her nose. We find that the evidence is sufficient for a rational trier of fact to conclude that Appellant caused his daughter’s death. Appellant’s fourth point of error is overruled.

POST-SENTENCE VICTIM ALLOCUTION

After punishment has been assessed and sentence pronounced, a court shall permit a victim, close relative of a deceased victim, or guardian of a victim to appear in person to present to the court and to the defendant a statement of the person’s views about the offense, the defendant, and the effect of the offense on the victim. The person making the statement may not direct questions to the defendant nor may the court reporter transcribe the statement. Tex.Code Crim.Proc.Ann. art. 42.03, § 1 (Vernon Supp.2000). In his first and second points of error, Appellant complains that it was error for the trial court to allow Maria to exercise her rights under Article 42.03 because it violated Appellant’s rights to due process and subjected him to double jeopardy and cruel and unusual punishment. Initially, we look at whether Appellant has preserved his complaint for appellate review.

Preservation of Error

Appellant complains that his due process rights were violated because the court did not allow the court reporter to transcribe Maria’s statement and because Maria was allowed to direct questions at him in violation of Article 42.03, sec. 1(b). Tex.Code Crim.Proc.Ann. art. 42.03, § 1(b). In order to preserve a complaint for appellate review, the record must reflect that a timely objection was made to the trial court and that the complaining party received a ruling from the trial court on the objection. Tex.R.App.P. 33.1(a). While objecting to the court allowing the statement and ordering the Appellant to be present for the statement, Appellant made the following arguments:

APPELLANT: [B]eeause I will make an objection to. It says in my estimation, the Court shall permit, okay, to address. And permit is like you know, you can or you can’t. You don’t have to if you don’t want to. The Court shall, you don’t. The Court has to do it in my opinion because there has been—
COURT: Shall admit. Says shall be present, too.
APPELLANT: It says, that a person may present to the Court and so the defendant, — a statement, okay. It shall permit, I mean that doesn’t mean you have to permit to do this and if requested no other word other than shall is enumerated there. And if you, the operative word is permit, Your Honor. I would, I would, I would certainly object to, especially to this. The court reporter shall not transcribe the testimony. I mean that’s not—
COURT: Say may not, which is interesting.
APPELLANT: Well, the court reporter may not transcribe this statement.
COURT: That sounds kind of wishy-washy.

It appears that Appellant and the court were discussing the mandatory language of “shall” vis-a-vis the permissive language of “may” in the context of the transcription of the testimony. At no time did Appellant formally object to the lack of transcription. Although Appellant complained on the record about Maria’s statement and her demeanor, he did not tender a bill of exceptions regarding what questions, if any, she directed to Appellant. Appellant has failed to preserve his complaint for appellate review. See Tex.R.App,P. 33.1(a)(1).

We recognize, however, that to some extent Appellant has been placed in a classic “Catch-22” predicament. On the one hand, he wants to complain about the failure of the reporter to transcribe Maria’s statement; on the other, he needs to demonstrate that he preserved error by timely objecting to the questions Maria directed toward him. In the interest of justice, we will address his specific contentions.

Double Jeopardy

The double jeopardy clause of the United States Constitution embodies three protections: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. Illinois v. Vitale, 447 U.S. 410, 415, 100 S.Ct. 2260, 2264, 65 L.Ed.2d 228, 235 (1980); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969); Ex parte Broxton, 888 S.W.2d 23, 25 (Tex.Crim.App.1994). Since Appellant was not acquitted, nor was a second prosecution instituted after his conviction, it appears that Appellant is complaining that by subjecting him to the post-sentence victim allocution, he is suffering from multiple punishments for the same offense. However, even assuming that post-sentencing victim allocution is a form of punishment, there has been no violation of the double jeopardy clause.

Double jeopardy describes the risk against the imposition of multiple criminal punishments for the same offense, but only when such occurs in successive proceedings. Hudson v. U.S., 522 U.S. 93, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997). In a single proceeding, the multiple-punishment issue is limited to ensuring that the total punishment did not exceed that authorized by the legislature. U.S. v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487, 503 (1989). Since a legislature may authorize cumulative punishment under two statutes for a single course of conduct, the multiple-punishment inquiry in the context of a single proceeding focuses on whether the legislature actually authorized the cumulative punishment. Id. at 1903 n. 10.

The punishment for capital murder where the State has not sought the death penalty is automatically set at life in prison. TexJPenal Code Ann. § 12.31(a)(Ver-non 1994). In addition, post-sentence victim allocution has been authorized by the Texas Legislature in all felony cases. Tex. Code CRIm.PROC.Ann. art. 42.03(b). Therefore, pursuant to statute, once Appellant had been found guilty of capital murder, the trial court was mandated to sentence him to life in prison and to allow the post-sentence victim allocution. Since the trial court did not exceed the punishment as allowed by the legislature, there was no violation of the double jeopardy clause.

Cruel and Unusual Punishment

Appellant’s final complaint against post-sentence victim allocution is that it is cruel and unusual punishment under both the Texas and United States Constitutions. We disagree.

What is necessary to show sufficient harm for purposes of the cruel and unusual punishment clause depends upon the claim at issue. Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156, 167 (1992). “The general requirement that an Eighth Amendment claimant allege and prove the unnecessary and wanton infliction of pain should ... be applied with due regard for differences in the kind of conduct against which an Eighth- Amendment objection is lodged.” Id.; Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251, 261 (1986). Further, the Eighth Amendment’s prohibition of cruel and unusual punishments “ ‘draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society,’ ” and so admits of few absolute limitations. Hudson, 503 U.S. at 8, 112 S.Ct. at 1000, 117 L.Ed.2d at 167; Rhodes v. Chapman, 452 U.S. 337, 346, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59, 68 (1981).

The objective component of an Eighth Amendment claim is therefore contextual and responsive to “contemporary standards of decency.” Hudson, 503 U.S. at 8, 112 S.Ct. at 1000, 117 L.Ed.2d at 167; Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 290, 50 L.Ed.2d 251 (1976). Because routine discomfort is part of the penalty that criminal offenders pay for their offenses against society, only those deprivations denying the minimal civilized measure of life’s necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson, 503 U.S. at 8, 112 S.Ct. at 1000, 117 L.Ed.2d at 167.

We find no case law regarding cruel and unusual punishment as it relates to post-sentence victim allocution. However, in the closely related area of the admission of victim-impact evidence at the punishment phase of criminal trials, the Supreme Court has held that the Eighth Amendment does not constitute a per se bar. Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, 736 (1991). The Court reaffirmed the view expressed by Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934): “[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Payne, 501 U.S. at 827, 111 S.Ct. at 2609,115 L.Ed.2d at 736.

The Texas Legislature specifically enacted Article 42.03 to allow victim statements only after sentencing in order to alleviate any risk that the statement would affect the partiality of the fact finder at the punishment phase. See Nicholson, 26 St. MaRy’s L.J. at 1114-15. Since the Supreme Court has determined that allowing victim impact evidence prior to sentencing does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment, we are hard-pressed to conclude that posi-sentence victim allocution is a violation. Accordingly, Appellant’s first and second points of error are overruled.

CHALLENGE FOR CAUSE

In his third point of error, Appellant complains that the court erred in fading to grant a challenge for cause during voir dire. At the outset, we note that Appellant has failed to preserve error for review. In order to preserve error in the criminal context, an Appellant must: (1) use all of his peremptory strikes; (2) ask for and be refused additional peremptory strikes; and (3) be forced to take an identified objectionable juror whom Appellant would not otherwise have accepted had the trial court granted his challenge for cause or granted him additional peremptory strikes. Davila v. State, 930 S.W.2d 641, 648 (Tex.App. — El Paso 1996, pet. refd).

From a careful review of the record, it appears that Appellant used only eight of his ten peremptory strikes. Further, Appellant did not identify an objectionable juror whom he would not have otherwise accepted. Appellant’s third point of error is overruled.

Having overruled all points of error, we affirm the judgment of conviction.

      . Texas appears to be the only state which allows victims to speak after sentence has been pronounced. See Keith D. Nicholson, Would. You Like Some More Salt With That Wound? Post-Sentence Victim Allocution in Texas, 26 St. Mary’s L.J. 1103, 1106 n. 9.

      . Appellant proffers no argument or authority as to the protection offered by the Texas Constitution or how that protection differs from that guaranteed by the United States Constitution. Without such argument or authority, Appellant’s point is inadequately briefed. Matchett v. State, 941 S.W.2d 922, 934 (Tex.Crim.App.1996); Narvaiz v. State, 840 S.W.2d 415 (Tex.Crim.App.1992), cert. denied, 507 U.S. 975, 113 S.Ct. 1422, 122 L.Ed.2d 791 (1993).