author: DON BURGESS, Justice.

text:
    Ida Marie STARK, et al., Appellants, v. Eunice R. BENCKENSTEIN, et al., Appellees.
    No. 09-03-225 CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 1, 2004.
    Decided Dec. 30, 2004.

      L. Clayton Burgess, Lafayette, LA, Louis Dugas, Orange, for appellants.
    Louis Dugas, Jr., for William H. Stark, III, Randall Stark and Lynn Marie Stark Barras.
    John Cash Smith, Bush, Lewis & Roebuck, Tommy Gunn, Gunn & Parkhurst, LLP, Orange, Kurt M. Andreason, Elizabeth C. Turley, Mehaffy Weber, PC, Kevin M. Jordan, Sheldon, Jordan & Dunham, LLP, Beaumont, Thomas L. Hanna, Thomas L. Hanna, PC, Nederland, Larry C. Hunter, Hunter Burch, LLP, Vidor, for appellees.
    Before McKEITHEN, C.J., BURGESS and HILL , JJ.

       The Honorable John Hill, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon Supp.2004).

   OPINION

DON BURGESS, Justice.

This suit arises from claims related to the estates of three decedents' — H.J. Lutcher Stark (“Lutcher”), and two of his wives, Nita Hill Stark (“Nita”), and Nelda C. Stark (“Nelda”). Appellants, who are heirs of William H. Stark II (one of Lutcher’s and Nita’s sons), contest the trial court’s grant of summary judgment against them in a declaratory judgment action. The appellants are Ida Marie Stark, individually and as independent executor of the Estate of William H. Stark II, Deceased, William H. Stark III, Randall Hill Stark, and Linda Marie Stark Barras. The appellees are Eunice R. Benckenstein, Walter G. Riedel III, and Roy Wingate, each individually and as independent co-executors of the estate of Nelda C. Stark, deceased (the “Estate”); Eunice R. Benckenstein, as successor independent executrix of the estate of H.J. Lutcher Stark, deceased; the Nelda C. and H.J. Lutcher Stark Foundation (the “Foundation”); Clyde V. McKee, Jr., individually; and the Attorney General of the State of Texas, intervenor. We will affirm.

Nita died in 1939. Her probated will named Lutcher as independent executor and divided her residuary estate between their children, William H. Stark II (“Bill”) and Homer Stark (“Homer”). As part of the final settlement of Nita’s estate, Homer and Bill executed a receipt and release in 1948 for the properties they received and disclaimed any further interest in properties of their mother’s estate.

Lutcher married Nelda in 1943. When Lutcher died in 1965, his will was admitted to probate and Nelda was appointed independent executrix pursuant to Lutcher’s will. Under the will’s terms, Homer and Bill each were entitled to legacies of $1,000,000, with the remainder of the estate being divided between Nelda and the Foundation. The legacies to Homer and Bill were, paid, and each executed a release in 1969.

Bill died in 1979. In 1988, his heirs, appellants here, filed suit against the Foundation and Nelda, individually and as independent executrix of Lutcher’s estate. As plaintiffs in this prior litigation, appellants claimed that Lutcher, as independent executor of Nita’s estate, had concealed material information regarding Nita’s alleged community property; they also asserted that Nelda and the Foundation had continued the alleged fraudulent concealment and had benefitted from Nita’s assets, which allegedly had been wrongfully diverted first to Lutcher and then to Nelda and the Foundation, all to the detriment of Bill and Homer. Bill’s heirs sought: (1) an accounting of the estates of Nita and Lutcher; (2) a constructive trust over the assets of Nita’s and Lutcher’s estates; and (3) damages. Ultimately, this prior litigation settled and plaintiffs, the appellants here, received $2,500,000 and executed a release.

Nelda died in 1999, and her will was admitted to probate, with appellees Benckenstein, Wingate, and Riedel being appointed independent co-executors. Subsequently, appellees learned appellants intended to file suit to set aside the release. Appellees filed the instant suit under the Uniform Declaratory Judgments Act (“Act”). See Tex. Civ. Prac. & RemUode §§ 37.001-011 (Vernon 1997 & Supp. 2005). Appellees sought a declaration of the effect of the release against claims based on issues adjudicated in the prior litigation.

After appellees filed a motion for summary judgment in their declaratory judgment cause, appellants filed counterclaims and third-party claims alleging breach of fiduciary duty, fraud, conversion, cancellation of release, constructive and/or resulting trust. Appellees amended their motion for summary judgment to include grounds of release, restitution, ratification, and res judicata. The trial court granted summary judgment for appellees and awarded fees and costs to appellees under the Act.

Appellants bring three issues. First, they maintain the trial court erred in granting declaratory judgment; second, they contend the trial court erred in determining res judicata applied; and third, they say the grant of attorneys’ fees was error.

Was the Declaratory Judgment Proper?

Appellants assert the trial court’s grant of declaratory judgment was improper for three reasons: (1) appellees were not entitled to a declaration of non-liability in a tort action; (2) necessary parties were not before the court; and (3) Texas courts lack subject matter jurisdiction to determine real property interests in out-of-state property.

Appellants first argue that because their own causes of action presented as counterclaims — fraud, breach of fiduciary duty, negligent misrepresentation, and conversion — sound in tort, appellees may not obtain a judicial declaration of non-liability. Appellees respond that their declaratory action only sought a declaration as to the validity of the release signed by appellants in the prior litigation and did not seek a judicial declaration of tort non-liability.

The purpose of the Declaratory Judgments Act is to declare existing rights; it is designed to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” Tex. Civ. Prac. & Rem.Code Ann. § 37.002(b) (Vernon 1997); see Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex.1993). Among other instances in which a declaratory judgment would be proper, the Act provides that an interested person under a written contract, or other writings constituting a contract, may seek a determination of any question of construction or validity arising under the instrument and may obtain a declaration of rights, status, or other legal relations thereunder. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a) (Vernon 1997). A contract may be construed either before or after a breach. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(b) (Vernon 1997).

A potential defendant may not use a declaratory judgment action to determine its potential tort liability. See Abor v. Black, 695 S.W.2d 564, 566-67 (Tex.1985). However, this rule evolves from the recognition that only plaintiffs may sue for torts. See Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 767 (Tex.App.-El Paso 1993, writ denied). In a contractual relationship, any party may breach the contract, and, thus, any party may sue for the breach and seek a judicial determination of contractual rights. Id.

As a release is a contract, Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171, 178 (Tex.1997), appellees were entitled to request a determination of questions of construction or validity arising under the instrument and to obtain a declaration of rights, status, or other legal relations thereunder. See Tex. Civ. Prac. & Rem.Code Ann. § 37.004(a)(Vernon 1997); see Hartman, 863 S.W.2d at 767.

Appellees’ petition for declaratory relief sought construction of a release instrument and a declaration of: (1) the validity of the release instrument (2) the rights and legal relations under the release instrument, (3) the full and final disposition of all claims under the release instrument, and (4) the binding effect of the release instrument. As demonstrated by their pleadings, appellees did not seek a potential tort liability determination. Rather, their suit sought a judicial determination of their rights under a contract. See Crossley v. Staley, 988 S.W.2d 791, 797 (Tex.App.-Amarillo 1999, orig. proceeding).

Appellants next argue we lack jurisdiction to decide this matter because appel-lees’ petition for declaratory judgment excludes necessary parties from the current litigation and, thus, is fatally defective. Appellants contend Bill’s brother, Homer Stark, and Homer’s family are the excluded necessary parties. The Homer Starks were plaintiffs in the prior litigation, but signed a separate, though apparently similar, release in connection with its settlement.

The failure to join parties, even those necessary and indispensable, generally is not jurisdictional. See Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200, 204 (Tex.1974). Instead, the question usually is whether the trial court should have proceeded with those who were present. Brooks v. Northglen Ass’n, 141 S.W.3d 158, 162 (Tex.2004)(citing Cooper, 513 S.W.2d at 204). A party’s absence rarely will deprive the court of jurisdiction to adjudicate the dispute between parties before it. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex.1982).

We review a trial court’s decision to proceed or not to proceed in the absence of necessary parties under an abuse of discretion standard. See Allegro Isle Condo. Ass’n v. Casa Allegro Corp., 28 S.W.3d 676, 678-79 (Tex.App.-Corpus Christi 2000, no pet.); see also MCZ, Inc. v. Smith, 707 S.W.2d 672, 675 (Tex.App.-Houston [1st Disk] 1986, writ ref d n.r.e.). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998).

Recently, the Brooks Court analyzed the interplay between the Declaratory Judgment Act and Texas Rule of Civil Procedure 39. See Brooks, 141 S.W.3d at 162-63. The Court observed that Rule 39 governs joinder of persons under the Declaratory Judgment Act. Brooks, 141 S.W.3d at 162. While both Rule 39 and section 37.006(a) of the Declaratory Judgment Act mandate joinder of persons whose interests would be affected by the judgment, a trial court’s declarations do not prejudice the rights of any person not a party to the proceeding. See Brooks, 141 S.W.3d at 162-63. Rule 39 determines if a trial court has authority to proceed without joining a mandatory party. Id.

Appellants fail to show that Rule 89 required the presence of the Homer Stark family or that the trial court abused its discretion in proceeding without them. See Tex.R. Civ. P. 89; see also Allegro Isle Condo. Ass’n, 28 S.W.3d at 678-79. Appellants further fail to explain what prevents the trial court’s judgment from being “a final and complete adjudication of the dispute for the parties who were before the court.” Brooks, 141 S.W.3d at 162. Accordingly, we find the trial court did not abuse its discretion in proceeding without the presence of the Homer Stark family.

Appellants further argue that Texas courts lack subject matter jurisdiction to adjudicate title to real property located in Louisiana. Appellants contend a “naked question of title” exists because Bill and Homer Stark are entitled to interests in Louisiana real property under that states’s forced heirship rights.

It is well-settled law that Texas courts are without power or jurisdiction to adjudicate title to land in another state. Holt v. Guerguin, 106 Tex. 185, 163 S.W. 10, 12 (1914); Kelly Oil Co., Inc. v. Svetlik, 975 S.W.2d 762, 764 (Tex.App.-Corpus Christi 1998, pet. denied); Hartman v. Sirgo Operating, Inc., 863 S.W.2d 764, 766 (Tex.App.-El Paso 1993, writ denied). However, Texas courts may require a party over whom it has jurisdiction to convey a real property interest located in another state. McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961); Hartman, 863 S.W.2d at 766. “The distinguishing factor between these two principles is whether the cause before the Court involves a naked question of title.” Hartman, 863 S.W.2d at 766 (citing Massie v. Watts, 10 U.S. (6 Cranch) 148, 3 L.Ed 181 (1810)).

We look to the facts alleged in plaintiffs petition to determine the nature of the rights and relief sought. McDowell v. McDowell, 143 S.W.3d 124, 127 (Tex.App.-San Antonio 2004, pet. denied)(citing Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774, 775 (1955)). Here, appellees sought a determination of the parties’ rights and legal obligations under the release agreement. The trial court was not required to determine ownership of Louisiana real property interests and neither was any relief sought requiring the transfer of such interests. This case does not involve a naked question of title. See Hartman, 863 S.W.2d at 766-67. We hold the trial court had subject matter jurisdiction.

Appellants’ arguments under issue one are not persuasive. Issue one is overruled.

Issue two asks: “Did the court err in granting in [sic] ruling a prior judgment is res judicata as to matters that subsequently arise?” As Barr v. Resolution Trust Corp. ex rel. Sunbelt Federal Sav., 837 S.W.2d 627, 628 (Tex.1992), explains, the doctrine of res judicata, or claim preclusion, prevents the relitigation of a claim or cause of action that a court has finally adjudicated as well as relitigation of related matters that, with the use of diligence, a party should have litigated in the first suit. Res judicata was one of the trial court’s stated grounds for granting summary judgment in appellees’ favor.

But while appellants frame issue two solely in res judicata terms, their briefing of issue two emphasizes other arguments attacking the summary judgment; in particular, they contend the release they signed in the prior litigation does not bar their claims here. We consider first whether the trial court properly granted summary judgment for appellees regarding the release’s preclusive effect.

When reviewing a summary judgment, the appellate court takes as true all evidence favorable to the nonmovant; the appellate court also indulges every reasonable inference in the nonmovant’s favor and resolves any doubts in nonmovant’s favor as well. Southwestern Elec. Power Co. v. Grant, 78 S.W.3d 211, 215 (Tex.2002); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Texas Rule of Civil Procedure 166a(e) requires the summary judgment movant to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Haase v. Glazner, 62 S.W.3d 795, 797 (Tex.2001); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). An appellate court may review and affirm on any ground the movant presented in its motion for summary judgment. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex.2004).

The release, entitled “Full, Final, and Complete Release,” provided for the payment of $2,500,000 to appellants and for entry of an order dismissing appellants’ suit with prejudice. The order of dismissal with prejudice was entered January 17, 1991. The appellants here were the releasing parties in the prior litigation. The appellees here all were either released parties in the prior litigation or are successors in interest to previously released parties.

The claims released in the prior litigation included: all claims, demands, and causes of action, known or unknown, which were or could have been alleged in plaintiffs’ several petitions; all claims, demands,, and causes of action, known or unknown, arising out of or connected with: (a) any actions or omissions by Lutcher, whether individually or in other capacities, arising at any time during his life time; (b) any acts or omissions by Nelda, whether individually or in other capacities, “arising at any time during her lifetime until the date of the execution of this release;” (c) Nita’s estate or Lutcher’s estate; (d) the operation or activities of the Foundation, or any other foundation or charity principally supported by Nelda; (e) the operation or activities of any corporation of partnership or business entity in which Lutcher or Nelda has or had a controlling interest.

The release also contained the following “non-reliance” language:

Each Releasing Party states that he or she is entering into and executing this Full, Final, and Complete Release based upon his or her own free evaluation of the facts and circumstances surrounding his or her claims, demands, and causes of action and in reliance upon the advice of his or her own attorneys. Each Releasing Party expressly states that no representations, promises or agreement other than the payment of Two Million Five Hundred Thousand $2,500,000 has been made by any Released Party and each Releasing Party expressly states that the entering into and execution of this Full, Final and Complete Release is in no way conditioned upon or in reliance upon any representations, promises, or other agreements made by any of the Released Parties.

Citing Niemeyer v. Tana Oil and Gas Corp., 39 S.W.Sd 380, 388 (Tex.App.-Austin 2001, pet. denied), appellants maintain that while the release here applies to all past and present claims existing at the time of its execution, the release does not expressly bar prospective claims that might arise as to future claims or claims involving fraud in the underlying transaction, including their claims in the current litigation. However, Niemeyer is distinguishable; there the release did not address “unknown” claims and disclaimer of reliance was not an issue. Niemeyer, 39 S.W.3d at 388-89.

On the other hand, Schlumberger is more directly on point; it involves both a release of unknown claims and a disclaimer of reliance. See Schlumberger, 959 S.W.2d at 174. It also involves presumed fraud. Id. at 178 (“Accordingly, we assume, as we must, that Schlumberger misrepresented the project’s technological feasibility and commercial viability and that such misrepresentations are actionable as fraudulent inducement.”).

In Schlumberger, a settlement agreement was reached between the Schlumber-ger Corporation and the Swansons, who were partners in a joint venture to mine diamonds on the ocean floor off the coast of South Africa. See id. at 174. Schlum-berger and the Swansons negotiated a buy-out, and, in exchange for the price paid by Schlumberger, “the Swansons relinquished all rights, claims, and interests in the offshore diamond project ... and release[d] all causes of action against Schlumberger, known or unknown.” Id. The Swansons specifically agreed in the release that “they were not relying on any statement or representation of Schlumber-ger ..., that they were relying on their own judgment, and that they had been represented by counsel who had explained the entire contents and legal consequences of the release.” Id. Later, the Swansons sued Schlumberger, claiming they were fraudulently induced into signing the contract and release and misled by Schlum-berger about the value of the project. Id.

The Schlumberger Court recognized the inherent tension between the principle that the “[pjarties should be able to bargain for and execute a release barring all further dispute,” Id. at 179, and prior authority holding that clauses in contracts, including merger and disclaimer provisions, need not bar subsequent claims of fraudulent inducement. See id. at 178-79. The court held “a release that clearly expresses the parties’ intent to waive fraudulent inducement claims, or one that disclaims reliance on representations about specific matters in dispute, can preclude a claim of fraudulent inducement,” but also emphasized that “a disclaimer of reliance or merger clause will not always bar” such a claim. Id. at 181. Because the parties should be able to rely on their negotiated disclaimer or merger clauses to resolve fully their dispute's, the question for the court was “under which circumstances such disclaimers are binding.” Id. at 179. For the answer to this question, the court looked to “[t]he contract and the circumstances surrounding its formation....” Id.

Schlumberger indicates certain factors to consider when determining whether a rebanee disclaimer is binding. That the negotiating-parties in Schlumberger were represented by counsel, were experts in the subject matter of the negotiations, and were bargaining at arm’s length were important to the Court. See id. at 180. In addition, the Court noted that at the center of the parties’ dispute was the object of the alleged misrepresentations — the value of the mining project — and that the sole purpose of the unambiguous release was to end that dispute “once and for all.” Id. The Court concluded that, based on all of the facts and circumstances surrounding the release, it was clear the release was meant to apply to representations about the value of the project, “which, after all, was the very dispute that the release was supposed to resolve.” Id. The Swansons were precluded from claiming rebanee on Schlumberger’s prior representations about the project’s value. Id. While rejecting the argument that merger or disclaimer clauses should be binding whenever parties to the agreement are represented by independent legal counsel, the Court did not require that all the Schlumberger factors be present for a reliance disclaimer to be binding. See id. at 178; Atlantic Lloyds Ins. Co. v. Butler; 137 S.W.3d 199, 216-17 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

Here the release, as in Schlumberger, covers ab claims, whether known or unknown and further disclaims rebanee on representations about the specific matter in dispute. The parties here were represented by counsel, and bargained at arm’s length over the agreement’s terms. The final agreement contained releases of claims and a payment of cash. The disclaimer language signed by the appellants case tracks the language of the disclaimer held effective in Schlumberger and similarly expresses the parties’ intent to unequivocally disclaim reliance upon appellees’ representations. And, although there is no evidence the individual appellees were “knowledgeable and sophisticated” about issues raised in the prior litigation, there is no dispute the plaintiffs were represented by “highly competent and able legal counsel” who negotiated at arm’s length with appellees’ counsel. See Butler, 137 S.W.3d at 216-17.

Appellants argue Schlumberger does not apply here because of appellees fraudulent representations. Even if we assume appellees fraudulently misrepresented material facts to appellants in the prior litigation, the release’s disclaimer language precludes appellants’ recovery here. See Schlumberger, 959 S.W.2d at 180.

Appellants further assert Schlumberger does not apply because appellees owed appellants a fiduciary duty of full and complete disclosure. For Schlumberger’s fiduciary duty exception to apply here, appellants are required to show the existence of a fiduciary relationship between themselves and appellees at the time the release was executed in 1991. Id. at 177.

Appellants complain Nelda, as independent executrix of Lutcher’s estate, knowingly and intentionally included assets and properties in his estate that belonged to Nita’s estate instead. However, any of appellants’ claims against Nelda regarding Lutcher’s estate were resolved in the prior litigation. In 1990, the trial judge granted partial summary judgment in Nelda’s favor, dismissing all of appellants’ claims against her as independent executrix of Luteher’s estate. If Nelda allegedly breached any fiduciary duty to appellants arising from her role as independent executrix of Lutcher’s estate, that issue was resolved by the 1990 partial summary judgment. Appellants fail to show how Nelda had a fiduciary duty to them in 1991, when the prior litigation was settled with the release’s execution. Appellants further fail to show how Nelda’s independent executrix, Benckenstein, or the Foundation would have a fiduciary duty to appellants in the absence of Nelda’s having such a duty.

We find the trial court’s summary judgment was proper based on the release and its disclaimer of reliance. Our findings on the release issue are dispositive of appellants’ summary judgment complaints. See Two Thirty Nine Joint Venture, 145 S.W.3d at 157.

We need not consider the remainder of appellants’ issue two arguments. Issue two is overruled.

In issue three, appellants complain ap-pellees have failed to establish the requirements for an award of attorneys’ fees under the Declaratory Judgment Act. The trial court awarded $19,491.55 in attorneys’ fees to intervenor, the Attorney General of the State of Texas and $458,411.14 in attorneys’ fees to the remainder of the ap-pellees.

When a trial court awards fees in a declaratory judgment proceeding, we review the award under an abuse of discretion standard, “subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that fees be equitable and just, which are matters of law.” Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Tex. Civ. Prac. & Rem.Code Ann. § 37.009 (Vernon 1997). A trial court abuses its discretion when it rules arbitrarily, unreasonably, or without regard to guiding legal principles or supporting evidence. Bocquet, 972 S.W.2d at 21. However, an abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision. Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

To establish that the fees were reasonable and necessary, the party seeking attorney’s fees is required to show the fees were incurred while suing the opposing party on a claim allowing recovery of such fees. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). “A recognized exception to this duty to segregate arises when the attorney’s fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their ‘prosecution or defense entails proof or denial of essentially the same facts.’ ” Id. at 11 (quoting Flint & Assoc. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624-25 (Tex.App.Dallas 1987, writ denied)). “Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are ‘intertwined to the point of being inseparable,’ the party suing for attorney’s fees may recover the entire amount covering all claims.” Id. at 11-12 (quoting Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex.App.-Houston [14th Dist.] 1989), modified, 797 S.W.2d 31 (Tex.1990)).

Appellants maintain appellees did not show the requested attorneys’ fees were reasonable, necessary, equitable, and just. Appellants say appellees only produced billing summaries rather than billing statements to support the fee amounts and that the summaries do not show who performed the work and only show the months in which it was performed. Appellants further maintain appellees should have segregated the attorneys’ fees incurred with the bringing of the declaratory judgment action from those incurred in defending the various counterclaims asserted by appellants.

Attorneys for appellees presented extensive testimony and exhibits regarding their fees, including their time spent on the case, their usual and customary rates, the difficulty of the issues, and their expertise. Appellees’ counsel of record testified regarding the reasonableness and necessity of the fees and costs incurred from the filing of the declaratory action to the summary judgment hearing. Such testimony provides sufficient evidence as to the reasonableness and necessity of the fees and also shows the justness and equity of the fees. The testimony encompassed (1) the experience of the attorneys and paralegals involved; (2) the complexity of the issues; (3) the hours worked by the attorneys and paralegals; (4) their billing rates; (5) rates for similar services in the locality; (6) fees incurred based on time and rates as well as costs, and (7) the result obtained. Ap-pellees’ counsel also testified the fees were reasonable and necessary. Further, ap-pellees also submitted invoices reflecting the tasks performed, the individuals who performed the tasks, the time spent and the hourly rate charged. That appellants’ expert witness presented conflicting testimony does not show the trial court abused its discretion. See Davis, 571 S.W.2d at 862.

Appellees show that appellants’ counterclaims not only arise out of the same transaction as the release upon which the declaratory action is based, but they also are the same claims released by appellants in the prior litigation. We find the prosecution of the declaratory action and the defense of the counterclaims are inextricably intertwined and that segregation of the fees was unnecessary.

On the record before us, we cannot say that the district court abused its discretion in awarding attorney’s fees pursuant to appellees. We overrule appellants’ third issue and affirm the trial court’s grant of summary judgment, including the award of attorneys’ fees and costs in favor of appel-lees.

AFFIRMED.

      . Appellee Clyde V. McKee, Jr., died on September 14, 2004, and a suggestion of his death was filed on September 30, 2004. The suggestion requested that the Estate of Clyde McKee, Deceased, be made an appellee in place of the decedent personally and that Larry C. Hunter, counsel of record for decedent, be designated as the estate’s personal representative for this appeal.

      . After Nita’s death, Lutcher married Ruby Childers, who died in 1941. Ruby was Nelda’s sister.

      . Section 37.006 of the Declaratory Judgment Act states that where "declaratory relief is sought, all persons who have or claim any interest that would be affected by the declaration must be made parties.” Tex Civ. Prac. & Rem.Code § 37.006(a) (Vernon 1997).

      . Rule 39 states in subparts (a) and (b) as follows:
      (a) Persons to be Joined if Feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. ...
      (b) Determination by Court Whenever Joinder Not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by' protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for non-joinder.

        Tex.R. Civ. P. 39(a), (b).

      . For informational purposes only, we note the Louisiana Third Circuit Court of Appeals, in an unpublished opinion, recently affirmed the trial court’s dismissal of appellants’ claims against appellees in the Louisiana litigation. Ancillary Succession of H.J. Lutcher Stark, No. 04-323, 885 So.2d 59 (3rd Cir. Sept. 29, 2004)(not designated for publication).

      . Generally, if a suit is dismissed with prejudice, as occurred here, res judicata applies. See Bell v. Moores, 832 S.W.2d 749, 755 (Tex.App.-Houston [14th Dist] 1992, writ denied). Or where there is a legal relationship, such as under a lease or contract as occurs here, all claims arising from that relationship generally will arise from the same subject matter and be subject to res judicata. See Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 386 (Tex.App.-Beaumont 2004, pet. denied).

      . The released parties were: Nelda Childers Stark, individually and as alleged independent executrix of the estate of H.J. Lutcher Stark, deceased; to the extent it exists, if at all, the estate of H.J. Lutcher Stark, deceased; the Nelda C. and H.J. Lutcher Stark Foundation; all officers, directors, attorneys, and employees of either the Nelda C. and H.J. Lutcher Stark Foundation or Nelda Childers Stark; any individual, corporation, organization, foundation, or other entity alleged now or in the past or in the future to be owners or possessors of or participants in any transactions involving any properly alleged to have properly belonged to but withheld from Or misappropriated in the estate of Nita Hill Stark, deceased.

      .The release agreement is not dated. But the order dismissing with prejudice was entered January 17, 1991.

      . Appellants' current claims are fraud and conversion, as well as breach of fiduciary duty; appellants further seek to cancel the release, and to impose a constructive trust.

      . In Schlumberger, the parties released all " ‘causes of action of whatsoever nature, or any other legal theory arising out of the circumstances described above, from any and all liability damages of any kind known or unknown, whether in contract or tort.’ ” Further, the Swansons disclaimed reliance upon representations by Schlmnberger, saying:
      "[E]ach of us ’ [the Swansons] ■ expressly warrants and represents and does hereby state ... and represent ... that no promise or agreement which is not herein expressed has been made to him or her in executing this release, and that none of us is relying upon any statement or representation of any agent of the parties being released hereby. Each of us is relying on his or her own judgment and each has been represented by ... legal counsel in this matter. The aforesaid legal counsel has read and explained to each of us the entire contents of this Release in Full, as well as the legal consequences of this Release .... (emphasis added)”

        Schlumberger, 959 S.W.2d at 180.

      . To support their fraud claim, appellants direct us to the sworn statements and affidavits of (1) Charles M. Kinney, a former security guard for the Stark family, (2) Clayton Newberry, also a former security guard for the Stark family, and (3) John Creswell, an employee of the Stark family for over fifty years. Appellants maintain the statements of Kinney and Newberry show appellees hid evidence during the prior litigation, while Creswell's statement shows appellees burned evidence during the prior litigation. But, Kinney testified he had only “second hand” information about documents being hidden. Newberry maintained, "to the best of [his] knowledge”, that certain documents about Stark museum assets were never provided to appellants. Creswell could identify only one type of document being burned during the prior litigation-building material tickets.

      . Other of appellants’ issue two arguments are:
      1. retention of benefits paid does not constitute ratification;
      2. statute of limitations does not bar appellants' claims;
      3. appellants’ factual claims are valid;
      4. appellants have an interest in wrongfully withheld properties and assets, namely, Big Lake and other Louisiana property; Caddo Parish, Louisiana, mineral interest; Texas timber — Wier Long-leaf lumber; and Roslyn Ranch in Colorado.


source: Caselaw Access Project

author: SUE WALKER, Justice.

license: Public Domain

text:
    TEXAS MUTUAL INSURANCE COMPANY, Appellant, v. SURETY BANK, N.A. Individually and d/b/a Surety Premium Finance, Appellee.
    No. 2-04-233-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 6, 2005.

      Graves, Dougherty, Hearon & Moody, P.C., Peter D. Kennedy, James A. Hemp-hill, Texas Mutual Insurance Company, Mary B. Nicols, Austin, Brown, Dean, Wiseman, Liser, Proctor & Hart, L.L.P., Michael L. Peck, Fort Worth, for appellant.
    Chappell, Hill & Lowrance, L.L.P., David Chappell, Marcus C. Marsden, Jr., Surety Bank, N.A., Talya Bernstein Gala-ganov, Fort Worth, for appellee.
    Panel A: HOLMAN, WALKER, and McCOY, JJ.
   OPINION

SUE WALKER, Justice.

I. Introduction

In this accelerated, interlocutory appeal, Appellant Texas Mutual Insurance Company (“Texas Mutual”) challenges a single provision in a temporary injunction obtained by Appellee Surety Bank, N.A., individually and doing business as Surety Premium Finance (“Surety Bank”). Texas Mutual claims that the challenged temporary injunction provision constitutes a pri- or restraint on speech that is unconstitutional under article one, section eight of the Texas Constitution and under the First Amendment of the United States Constitution. See Tex. Const, art. I § 8; U.S. Const amend. I. Because we hold that the challenged provision is unconstitutional, we will modify the trial court’s temporary injunction to delete it; as modified, we will affirm the temporary injunction.

II. Factual and PROCEDURAL Background

Texas Mutual is an insurance company that issues workers’ compensation insurance policies to employers. Surety Bank provides financing for insurance policies, including workers’ compensation insurance.

As a result of a dispute concerning whether Texas Mutual was required to refund unearned premiums Surety Bank had paid to Texas Mutual on behalf of a particular company, Surety Bank sued Texas Mutual. Because of this litigation, Texas Mutual decided to cease doing business with Surety Bank. In accordance with this decision, Texas Mutual notified insurance agents in Texas by a faxed letter that Texas Mutual would no longer accept Surety Bank premium finance agreements. Surety Bank then filed the present lawsuit against Texas Mutual, alleging tortious interference with prospective business relationships and business disparagement.

In connection with its lawsuit, Surety Bank sought a temporary injunction. Following an evidentiary hearing, the trial court entered a June 25, 2004 temporary injunction enjoining Texas Mutual from “(1) refusing to issue insurance or canceling insurance due to the purchasers’ financing the premiums in part or in whole through Surety [Bank]; (2) discouraging the financing of the purchase of insurance through Surety [Bank]; or (3) defaming Surety [Bank] in any way.” Texas Mutual moved to modify the temporary injunction, arguing that provisions two and three of the injunction, which prohibited Texas Mutual from “discouraging” Surety Bank financing and from “defaming Surety [Bank] in any way,” were vague, unconstitutional, and should be removed from the temporary injunction. The trial court granted Texas Mutual’s motion to modify the injunction to the extent that it modified the temporary injunction to delete provision two and to alter provision three as set forth below and to renumber it to become provision two:

Defendant Texas Mutual Insurance Company, its officers, agents, and employees are enjoined from ... (2) Communicating or implying to any insurance agent or broker or any business known to be a customer or potential customer of Surety, or an entity or individual who utilizes Surety’s financial services or such services of other financial companies or recommends such services to others (including all employees and agents of all of the foregoing businesses or individuals) that Surety is in some sort of financial trouble or that Surety has committed a misfeasance or malfea-sanee or was somehow unfit or unable to finance insurance premiums.

Texas Mutual perfected this interlocutory appeal challenging the constitutionality of this modified provision.

III. Constitutionality of Temporary Injunction’s Second Provision

Texas Mutual argues that the temporary injunction’s second provision is unconstitutional as a prior restraint on speech. Surety Bank does not dispute that the temporary injunction does prospectively enjoin speech, but contends that the enjoined speech is private, commercial speech subject to a lower level of constitutional protection. Because Texas Mutual does not challenge provision one of the temporary injunction and because Surety Bank does not dispute that modified provision two of the temporary injunction constitutes a prior restraint on speech, we accept the trial court’s unchallenged findings of fact that Surety Bank satisfied the elements necessary to obtain a temporary injunction. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) (recognizing litigant must plead and prove three specific elements to obtain a temporary injunction: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim). Therefore, we address whether the prior restraint on speech set forth in provision two of the temporary injunction is unconstitutional in light of the facts supporting issuance of the injunction.

A prior restraint on speech is an “administrative and judicial order[ ] forbidding certain communications when issued in advance of the time that such communications are to occur.” Alexander v. United States, 509 U.S. 544, 550, 113 S.Ct. 2766, 2771, 125 L.Ed.2d 441 (1993). Article one, section eight of the Texas Constitution provides that “[e]very person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege....” Tex. Const. art. I § 8. This portion of the Texas Constitution “provides greater rights of free expression than its federal equivalent.” Davenport v. Garcia, 834 S.W.2d 4, 10 (Tex.1992). Thus, prior restraints on speech are presumptively unconstitutional. See id.; San Antonio Express-News v. Roman, 861 S.W.2d 265, 267 (Tex.App.San Antonio 1993, orig. proceeding).

The Texas Constitution protects the right to speak, even to speak defamatory words, although damages are recoverable for such defamatory speech. Ex parte Tucker, 220 S.W. 75, 76, 110 Tex. 335, 337-38 (1920). In Tucker, the supreme court explained this concept:

There can be no justification for the utterance of a slander. It cannot be too strongly condemned. The law makes it a crime. But there is no power in courts to make one person speak only well of another. The Constitution leaves him free to speak well or ill; and if he wrongs another by abusing this privilege, he is responsible in damages or punishable by the criminal law.

Id. “It is well settled that Texas courts will not grant injunctive relief in defamation or business disparagement actions if the language enjoined evokes no threat of danger to anyone, even though the injury suffered often cannot easily be reduced to specific damages.” Brammer v. KB Home Lone Star, L.P., 114 S.W.3d 101, 107 (Tex.App.Austin 2003, no pet.). Thus, even defamatory statements, with the exception of those that threaten others, are provided constitutional protection in most cases. See Hajek v. Bill Mowbray Motors, Inc., 647 S.W.2d 253, 255 (Tex.1983) (dissolving temporary injunction as violative of article one, section eight of Texas Constitution); Brammer, 114 S.W.3d at 106-09 (modifying temporary injunction to delete portions enjoining speech based on content); Markel v. World Flight, Inc., 938 S.W.2d 74, 79-81 (Tex.App.-San Antonio 1996, no writ) (holding temporary injunction unconstitutional prior restraint on free expression); Pirmantgen v. Feminelli, 745 S.W.2d 576, 578-79 (Tex.App.-Corpus Christi 1988, no writ) (holding temporary injunction violated Texas Constitution); Strang v. Biggers, 252 S.W. 826, 827 (Tex.Civ.App.-Dallas 1923, no writ) (affirming dissolution of temporary injunction that violated appel-lee’s freedom of speech); see also Stansbury v. Beckstrom, 491 S.W.2d 947, 947-50 (Tex.Civ.App.-Eastland 1973, no writ) (dissolving temporary injunction infringing on appellant’s freedom of speech).

Simply put, it is generally unconstitutional for courts to require one to acquire permission to speak before speaking:

It has never been the theory of free institutions that the citizen could say only what courts or legislatures might license him to say, or that his sentiments on any subject or concerning any person should be supervised before he could utter them. Nothing could be more odious, more violative or destructive of freedom, than a system of only licensed speech or licensed printing.

Tucker, 220 S.W. at 76. Accordingly, an injunction enjoining future speech is permissible under article one, section eight of the Texas Constitution only if the trial court makes specific findings supported by the evidence that (1) an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. See Davenport, 834 S.W.2d at 10.

We begin our analysis under the second prong set forth in Davenport; that is, we examine the terms of the injunction to determine whether the “injunctive relief granted encompasses the least restrictive means of protecting against the alleged harmful effect.” See Ex parte Tucci, 859 S.W.2d 1, 6 (Tex.1993). The temporary injunction enjoins Texas Mutual from “communicating or implying” that Surety Bank is “in some sort of financial trouble, has “committed a misfeasance or malfeasance,” or “was somehow unfit or unable to finance insurance premiums.” Texas Mutual cannot “eommunicat[e] or imply[]” the above information to “any insurance agent or broker,” “any business known to be a customer or potential customer of Surety,” “an entity or individual who utilizes Surety’s financial services or such services of other financial companies,” any entity who “recommends such services to others,” or to any “employees and agents of [ ] the foregoing businesses or individuals.” The temporary injunction’s restraint on prospective speech is, on its face, too broad; it -in effect prohibits Texas Mutual from communicating with anyone concerning Surety Bank and restricts even truthful communications. Provision two clearly is not the least restrictive means of protecting against the harm alleged by Surety Bank — tortious interference with prospective business relationships and business disparagement. See, e.g., id.

Surety Bank, citing Amalgamated Acme Affiliates, Inc., v. Minton and Karamchandani v. Ground Technology, Inc., argues that prior restraints on speech are permissible when the enjoined speech is commercial speech. Amalgamated Acme Affiliates, Inc., v. Minton, 33 S.W.3d 387 (Tex.App.-Austin 2000, no pet.); Karamchandani v. Ground Technology, Inc., 678 S.W.2d 580 (Tex.App.-Houston [14th Dist.] 1984, no writ). This case, however, is distinguishable from . both Amalgamated Acme and Karamchandani.

In Amalgamated Acme, employees of University Sports called between forty and fifty of the plaintiffs customers, provided false information to the customers, and urged them to withhold payments owed to the plaintiff. As a result, several customers stopped paying the plaintiff. Amalgamated Acme, 33 S.W.3d at 391. Employees of University Sports also called the plaintiffs customers, falsely identified themselves as the plaintiff, and provided false information. to the customers. Id. Because University Sports’s “speech” was “intended to end contractual relationships between [the plaintiff] and his customers, or to prevent contractual relationships with potential customers,” the appellate court agreed that it was commercial speech. Id. at 394. Justice Bea Ann Smith explained that “[t]o enjoy any protection, commercial speech must not be false or misleading.” Id. Because University Sports’s speech was both false and misleading, the appellate court held that the trial court properly enjoined University Sports from making in the future the same communications the plaintiff proved it had made in the past. That is, the trial court enjoined University Sports from repeating to more known customers of the plaintiff and known potential customers of the plaintiff the very fraudulent and false information plaintiff proved University Sports had been disseminating to plaintiffs customers. Id.

Here, unlike in Amalgamated Acme, Surety Bank has not alleged or established that Texas Mutual made false statements. Instead, Surety Bank argued in its motion seeking a temporary injunction that Texás Mutual’s letter “gave no reason for Defendant’s action [as of June 1, 2004 ceasing to accept premium financing agreements from Surety Bank]. Thus, the agents were given the impression that Defendant’s decision to refuse to issue insurance to those financing their purchase through Plaintiff was due to some misfeasance.” The “impression” that a reader may draw from Texas Mutual’s letter is an issue that will be resolved at trial. But we decline to hold here that a possible negative interpretation or impression of factually accurate words renders speech false or misleading. Because the record before us does not establish that the speech at issue here was false or misleading, Amalgamated Acme is not on point. . Also because the record before, us does not establish that the speech at issue here was false or misleading, its classification as commercial speech or noncommercial speech is not controlling.

In Karamchandani, appellant was a shareholder in appellee, a corporation. 678 S.W.2d at 581. Appellant had filed suit seeking liquidation of appellee’s assets, and subsequently two of appellee’s customers received letters with copies of appellant’s suit. for liquidation attached. Id. Appellee sought a temporary injunction to prohibit appellant — who as a forty percent shareholder had access to information concerning appellee’s clients — from sending anymore letters to appellee’s clients. Id. The trial court granted a temporary injunction to preserve the status quo pending the outcome of the liquidation suit.,. Id. at 582. The court of appeals upheld the injunction, noting,

[tjhere was evidence which the trial court could have concluded indicated that the letters to appellee’s clients were written and sent by appellant. They were sent to appellee’s major clients and stated that liquidation of appellee’s business assets was being sought. The potential harm is obvious. The injunction was narrow and precise and prohibited only the sending of letters which could have caused irreparable harm and would have disturbed the status quo.

Id.

Here, pursuant to provisions of the temporary injunction that are unchallenged here, Texas Mutual has already faxed to all insurance agents who received its original letter a follow up letter stating that “Texas Mutual is accepting and will continue to accept applications for insurance using Surety Premium Financing as the source of funding.” And the parties agree that Texas Mutual has been and continues to accept applications for insurance using Surety Bank pending the outcome of the underlying litigation. Thus, the narrow temporary injunction in Karamchandani, implemented to preserve the status quo, does not support the broad injunction entered in this case, especially when other provisions of the injunction have effectively ensured maintenance of the status quo.

We hold that provision two in the trial court’s July 15, 2004 order on Texas Mutual’s motion to modify the temporary injunction is unconstitutional under article one, section eight of the Texas Constitution as a prior restraint on speech. See Alexander, 509 U.S. at 550, 118 S.Ct. at 2771; Tucker, 220 S.W. at 76; Market, 938 S.W.2d at 79-81. We sustain Texas Mutual’s sole issue on appeal.

IY. Conclusion

Having sustained Texas Mutual’s sole issue on appeal, we modify the trial court’s July 15, 2004 modified temporary injunction by deleting the following language,

(2) Communicating or implying to any insurance agent or broker or any business known to be a customer or potential customer of Surety, or an entity or individual who utilizes Surety’s financial services or such services of other financial companies or recommends such services to others (including all employees and agents of all of the foregoing businesses or individuals) that Surety is in some sort of financial trouble or that Surety has committed a misfeasance or malfeasance or was somehow unfit or unable to finance insurance premiums.

We affirm the trial court’s striking of provision three in its June 25, 2004 temporary injunction, and as modified, we affirm the June 25, 2004 temporary injunction and the July 15, 2004 order modifying it.

      . Texas Mutual’s letter provided:
      Effective June 1, 2004, Texas Mutual Insurance Company will no longer accept premium finance agreements from Surety Bank, (doing business as Surety Premium Finance). If we receive a premium finance agreement issued by Surety after this month, we will return the funds to Surety, and we will advise the agent to find funding from another source for the premium.
      Thank you for your cooperation in this matter. If you have any questions, please contact your Texas Mutual® marketing representative.
      We appreciate the business you have given us, and we assure you that we will continue to earn your business.

      . The trial court did not alter provision one of the temporary injunction providing that Texas Mutual may not “refus[e] to issue insurance or cancel[ ] insurance due to the purchasers' financing the premiums in part or in whole through Surety,” and Texas Mutual does not challenge this provision here.

      . At the hearing on Texas Mutual’s motion to modify the temporary injunction, Surety Bank conceded that the injunction enjoined prospective speech but argued that Texas Mutual could seek permission of the trial court prior to making such communications, "if ... he [Texas Mutual] wants to communicate it, then he can come ask the Court.”

      . In light of our holding regarding the Texas Constitution, we need not consider whether provision two of the July 15, 2004 order violates the federal constitution. See Tex.R.App. P. 47.1.


author: LEE ANN DAUPHINOT, Justice.

text:
    Ryan Anthony SOTO, Appellant, v. The STATE of Texas, State.
    No. 2-03-365-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 6, 2005.

      Terry M. Casey, Fort Worth, for appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Steven W. Conder, Barbara Griffin and Lloyd Whelchel, Asst. Criminal District Attorneys, Fort Worth, for appellee.
    PANELA: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

A jury convicted Appellant Ryan Anthony Soto of attempted capital murder, and the trial court sentenced him to twenty-four years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant brings three points on appeal, arguing that the trial court committed reversible error (1) in admitting testimony during the guilt-innocence phase of extraneous assaults against the complainant and the complainant’s mother and (2) in accepting the jury’s finding that a deadly weapon was used in the commission of the offense. Because we hold that the trial court did not err, we affirm the trial court’s judgment.

Background Facts

In April 2002, Appellant was living with his girlfriend, LaNelle Shope, and her fifteen-month-old son, Hayden, the complainant. On April 28, 2002, Appellant took Hayden into the bedroom to change his diaper and to try to get him to go to sleep. When Shope noticed that it had gotten quiet in the bedroom, she went in to check on Appellant and her son. Appellant and Hayden were on the bed. Appellant was straddling the child. Hayden had turned blue, and his eyes were rolled back in his head. Shope testified that she saw a pillow get tossed from the bed onto the floor when she entered the room.

Shope grabbed her son up from the bed and went to call 911. Appellant grabbed the phone from her and broke it, so Shope went outside and used an emergency phone to call 911. The two officers who arrived at the scene both testified that the complainant was bluish with his eyes rolled back in his head and that his breathing was shallow and unresponsive. The officers also testified that Shope was screaming that Appellant had tried to Mil her baby.

Appellant was arrested while the complainant was being transported to the hospital, where he was treated and later released. Dr. Jayme Coffman, testifying for the State, stated that the complainant’s coloration, eye rolling, and cessation of breathing indicated suffocation, and that, in her opinion, a pillow placed and held down over a child’s face could be a deadly weapon.

Shope also testified to two prior instances of violence by Appellant, one resulting in Appellant hitting Shope and the other involving Appellant hitting the complainant because he was crying and would not stop.

EXTRANEOUS OFFENSES

In his first point, Appellant argues that the trial court erred in admitting an extraneous offense that Appellant committed against Shope, the complainant’s mother. In his second point, Appellant argues that the trial erred in admitting evidence of his prior assault against the complainant, Hayden.

We review the trial court’s admission of evidence under an abuse of discretion standard. If the trial court’s decision to admit the evidence lies within the zone of reasonable disagreement, then the decision must be upheld. In situations such as this, we will affirm the decision of the trial court if there is any valid ground upon which the decision could have been made. Article 38.36 of the Texas Code of Criminal Procedure provides, in relevant part:

(а) In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

“Former Texas Penal Code section 19.06 was virtually identical to Article 38.36(a).” Former section 19.06 applied to capital murder prosecutions. It also applied to attempted murder prosecutions. Consequently, we hold that article 38.36(a) applies to attempted capital murder prosecutions.

Evidence admitted under article 38.36 is still subject to the extraneous offense rules of 403 and 404(b). That is, extraneous offense evidence is inadmissible if offered solely to prove character conformity or if it is unduly prejudicial. If, however, the evidence is offered for the purpose of showing and does show the relationship between the parties, the evidence is admissible under rule 38.86 unless it is unduly prejudicial. Rule 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The State offered the evidence of the prior assault on the complainant for purposes of motive and intent. The trial court admitted the evidence over Appellant’s objections. The trial court stated, out of the presence of the jury, “I’m going to allow the reaction to the crying. That you said how he acted on that. I am also going to allow what she identified as a mark, him crying.” On appeal, the State argues that the admission of the evidence is within the zone of reasonable disagreement to show Appellant’s intent, motive, and state of mind in commission of the offense at bar. The State argues that “the prior incident shows the Appellant’s inability to control his response to the baby’s crying and his intent to use physical means to stop it.”

The evidence that Appellant complains of regarding Shope is that Appellant hit her because she wanted to let Hayden sleep with them when he woke up in the middle of the night and was crying. The trial court admitted the evidence apparently for the purposes for which it was offered — to show motive and intent. On appeal, the State argues that this evidence shows Appellant’s “hostile response when Hayden’s wants and needs were put ahead of his own wants and needs.” The State also argues that this evidence shows Appellant’s “intent, motive, and state of mind in attempting to suffocate Hayden with a pillow when he would not stop crying.”

The State’s argument regarding the admission of the extraneous offenses is extremely close to an argument that the State should be allowed to show the prior relationship of the parties. We note that article 38.36 and rule 404(b) are both limited internally to relevant evidence. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Neither article 38.36 nor rule 404(b) permits evidence of extraneous acts of misconduct to prove mere character conformity.

As the State points out, Appellant had a limited history of overreacting to Hayden’s crying. On one occasion, he struck him. On another occasion, he struck Hayden’s mother because she insisted on placing the child in the bed with them when the child awoke and cried. We conclude that this evidence is relevant under rule 404(b) as evidence of Appellant’s pattern or course of conduct, intent, and lack of accident. We further conclude that the evidence is relevant under article 38.36 as evidence of the relationship of Appellant and Hayden or of Appellant’s state of mind at the time of the offense.

Rule 403 provides that even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” As the State points out, it is not mere prejudice that will render the evidence inadmissible. It is doubtful that the State would offer evidence that did not in some way prejudice a defendant in a criminal case. The question is whether the admission of the evidence is unfairly prejudicial. Evidence is unfairly prejudicial if it inflames and prejudices the jury to the point that it creates an undue tendency to suggest a verdict on an improper basis, such as an emotional basis. The rule favors admissibility over exclusion. Factors that trial courts should consider in the rule 403 balancing test include:

(1) how compellirigly the extraneous offense evidence serves to make a fact of consequence more or less probable — a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way”;
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense;
(4) the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.

In the case now before this court, there was no direct evidence of the manner and means of attempting to cause Hayden’s death. There was no evidence that the child was struck. There were no broken bones. There were no signs of scalding. The only thing Shope saw was a pillow being tossed onto the floor. The medical evidence was that the child’s symptoms were consistent with being smothered. Smothering, however, can be accidental. The State needed the evidence of the extraneous offenses, which took little time to develop and had little likelihood of impressing a jury in an irrational way, to show Appellant’s intent and to show that the complainant’s injury was not the result of an accident. The evidence of the extraneous offenses showed specifically that Appellant had demonstrated in the past an intent to injure the child, ’ and he had shown a willingness to injure the mother when she tried to protect the child when he was crying. Based on the appropriate factors, we hold that the evidence’s probative value is not substantially outweighed by the danger of unfair prejudice. Because the admission of the evidence was permissible under rules 403 and 404(b), as well as article 38.36, the trial court did not abuse its discretion in admitting the evidence. We overrule Appellant’s first and second points.

Deadly Weapon Finding

In his third point, Appellant argues that the evidence is legally insuffi-eient to establish that the pillow used to smother Hayden was a deadly weapon. A deadly weapon means anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Police officer Brent Hudson testified that, as the State theorized the pillow was used, it was a deadly weapon. Dr. Jayme Coffman testified that a pillow, if used as the State theorized it was used, was a deadly weapon.

Appellant argues that because neither was provided the definition of a deadly weapon, their evidence was insufficient to establish that the pillow was a deadly weapon, as the standard each used in making his or her determination is unknown. Appellant points to the fact that Hayden did not die as a result of being smothered with a pillow. Although a police officer testified that he felt like the child was close to death, Appellant argues that there was no competent medical evidence that Hayden suffered serious bodily injury.

The evidence shows that Hayden was a purple-blue color and limp, and his eyes had rolled back. Dr. Coffman testified that Hayden’s bluish color, his rolled-back eyes, and the cessation of breathing indicated suffocation. The only evidence that Hayden had stopped breathing was his mother’s testimony that she could not tell whether he was breathing. Dr. Coffman testified that the description of Hayden’s condition was consistent with suffocation. It is common knowledge that suffocation, if it lasts long enough, may cause death. No expert testimony is necessary to prove this fact, just as no expert testimony is necessary to prove that drowning can cause death. Admittedly, these two deadly acts are exceptions to the general requirement that expert testimony is required.

Applying the appropriate standard of review for legal sufficiency, we hold that the evidence is legally sufficient to support the jury’s finding that the pillow used in the case now before this court was, in the manner of its use and intended use, capable of causing death and serious bodily injury and that the pillow, therefore, was a deadly weapon. We overrule Appellant’s third point.

Conclusion

Having overruled Appellant’s three points, we affirm the trial court’s judgment.

      . Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g).

      . Id. at 391; Rankin v. State, 974 S.W.2d 707, 718 (Tex.Crim.App.1998) (op. on reh’g).

      . State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000).

      . Tex.Code Crim. Proc. Ann. art. 38.36 (Vernon Supp.2004-05).

      . Ex parte Varelas, 45 S.W.3d 627, 649 (Tex.Crim.App.2001) (Holland, J., concurring op. to den. of State’s mot. for reh’g).

      . Lamb v. State, 680 S.W.2d 11, 16-17 (Tex.Crim.App.1984), cert. denied, 470 U.S. 1009, 105 S.Ct. 1372, 84 L.Ed.2d 391 (1985).

      . Hall v. State, 640 S.W.2d 307, 309 (Tex.Crim.App.1982).

      . Smith v. State, 5 S.W.3d 673, 679 (Tex.Crim.App.1999).

      . Tex.R. Evid. 403, 404(b).

      . Smith, 5 S.W.3d at 679.

      . Tex.R. Evid. 404(b).

      . See Tex.Code Crim. Proc. Ann. art. 38.36.

      . Tex.R. Evid. 404(b); Tex.Code Crim. Proc. Ann. art. 38.36.

      . Tex.R. Evid. 401; Rankin, 974 S.W.2d at 718.

      . See Tex.R. Evid. 404(b).

      . See Tex.Code Crim. Proc. Ann. art. 38.36.

      . Tex.R. Evid. 403.

      . Montgomery, 810 S.W.2d at 378.

      . Id. at 389.

      . Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997) (footnote omitted) (quoting Montgomery, 810 S.W.2d at 389-90).

      . Santellan, 939 S.W.2d at 169.

      . Tex Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp.2004-05).

      . See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App.2001); Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).


author: JOHN CAYCE, Chief Justice.

text:
    Joseph MANGONE, Appellant, v. The STATE of Texas, State.
    No. 2-03-198-CR.
    Court of Appeals of Texas, Fort Worth.
    Jan. 6, 2005.

      L. Patrick Davis, Fort Worth, for appellant.
    Tim Curry, Criminal District Attorney, Charles M. Mallín, Danielle A. LeGault, Jay Lapham, Asst. Criminal District Attorneys, Fort Worth, for state.
    PANELA: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.
   OPINION

JOHN CAYCE, Chief Justice.

Appellant Joseph Mangone complains that a visiting judge assigned to hear his case was without statutory authority to act after the jury was impaneled and sworn, and that, consequently, appellant’s subsequent convictions are void and a new trial would violate his double jeopardy protections. Appellant requests that we set aside his convictions and order an acquittal. Because we hold that the visiting judge was authorized to preside over appellant’s trial, we affirm the trial court’s judgment.

On April 7, 2003, a jury was legally empaneled and sworn by visiting Judge David Cleveland of the 396th District Court, Tarrant County. Three days later, the jury found appellant guilty of one count of aggravated sexual assault of a child and two counts of indecency with a child. The jury returned verdicts of not guilty for the remaining counts of aggravated sexual assault of a child and sexual assault of a child.

Prior to commencement of the punishment phase on April 11, 2003, appellant discovered that the ending date of Judge Cleveland’s assignment, order had been changed from April 7, 2003 to April 11, 2003, and that visiting Judge C.C. “Kit” Cooke had been assigned to the court for the same time period, “beginning April 7th, 2003 and ending April 11th, 2003.” Based on this information, appellant filed a motion for mistrial for lack of jurisdiction and a writ of prohibition petitioning Judge George Gallagher, the sitting judge of the 396th District Court, to order Judge Cleveland to “cease and desist” acting in the case.

At the hearing on appellant’s motion for mistrial and writ of prohibition, Ouida Stevens, administrative assistant to the Honorable Jeff Walker, presiding judge of the Eighth Administrative Judicial Region, testified that under an order signed by-Judge Walker on March 24, 2003, Judge Cooke was assigned to the 396th District Court beginning the week of April 7, 2003 and ending April 11, 2003. However, Stevens said that prior to the commencement of the trial of this case on April 7, Judge Cooke asked to be relieved from his assigned duties to take care of “some medical problems.” Stevens then immediately made arrangements to assign Judge Cleveland to the court. After contacting Judge Cleveland and determining that he would be available to sit, Stevens prepared a written assignment order that showed April 7, 2003 as both its beginning and its ending date. When Stevens learned later that morning that Cooke would not be returning to finish the trial, she changed the ending date of Judge Cleveland’s order by whiting out the original April 7 ending date, typing in the new April 11 date, and initialing the change. In the meantime, Judge Cleveland had commenced voir dire on the basis of “a verbal order.” The written order with Stevens’s initialed change was signed by Judge Walker later that afternoon.

After the hearing, Judge Gallagher denied the motion for mistrial and presided over the remainder of the jury trial without objection by appellant. The jury assessed appellant’s punishment at five years’ confinement for one count of aggravated sexual assault of a child and two years’ confinement for each of two counts of indecency with a child. The trial court sentenced him accordingly, with all sentences to run concurrently. This appeal followed.

In a single issue, appellant alleges:

POINT OF ERROR
JUDGE GEORGE GALLAGHER’S ACT OF RESUMING CONTROL OF THE 396TH CRIMINAL DISTRICT COURT BY RELIEVING VISITING JUDGE DAVID CLEVELAND OF HIS PURPORTED AUTHORITY TO ACT OVER THE REMAINDER OF DEFENDANT’S TRIAL AFFIRMATIVELY DEMONSTRATED PROPER EXTRAORDINARY REMEDY OF PROHIBITION WHERE ASSIGNED JUDGE WAS WITHOUT STATUTORY AUTHORITY TO ACT IN DEFENDANT’S CASE AFTER JURY WAS LEGALLY EMPANELED AND SWORN, THUS VOIDING APPELLANT’S CONVICTION AND INVOKING DOUBLE JEOPARDY AND ITS PROTECTIONS.

The presiding judge of an administrative region is authorized to assign judges in the region to “try cases and dispose of accumulated business.” Generally, visiting judges are assigned either to a particular case or for a period of time. The terms of the assignment order control the extent of the visiting judge’s authority and when it terminates. Typical assignment orders provide that the visiting judge’s authority terminates on a date specified in the assignment order, or upon the occurrence of a specific event such as the completion of trial, the signing of a judgment, or a ruling on a motion for new trial.

It is undisputed that Judge Cleveland was originally assigned by written order to the 396th District Court, Tarrant County, Texas “for the period beginning April 7th, 2003,” the date he began the trial of this case. The order, however, contained the following printed language concerning the length of the assignment:

[t]he assignment shall continue thereafter so long as may be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new trial and all other matters growing out of the cause heard by the assigned judge during such period.

Thus, according to the express terms of the written order, Judge Cleveland’s assignment continued in force and effect “so long as may be necessary for [Judge Cleveland] to complete the trial of any cause begun during such period.”

Because the trial of this case began during Judge Cleveland’s assigned time period, Judge Cleveland was authorized by the written order to complete the trial of the case. The fact that Stevens and Judge Walker changed the ending date of the written order after Judge Cleveland began the trial did not, as appellant contends, render the order null and void or deprive Judge Cleveland of the authority to, complete the trial commenced on the beginning date of his assignment, which was unchanged.

Appellant argues that Judge Gallagher’s “overt act of returning to and resuming the bench of his Court for the remainder of Defendant’s trial affirmed Defendant’s argument that Cleveland was without statutory authority to act and perfected [the] extraordinary remedy of prohibition,” entitling him to an acquittal. We disagree. Under Texas law, two or more judges may exercise authority over a single case. Judge Gallagher’s decision to preside, over the punishment phase of the trial after the appellant challenged Judge Cleveland’s authority to do so is irrelevant to Judge Cleveland’s lawful authority to preside over the case in Judge Gallagher’s absence.

For the foregoing reasons, we hold that Judge Cleveland’s actions were undertaken with appropriate authority and are valid. We overrule appellant’s sole point on appeal and affirm the trial court’s judgment.

      . Stevens stated that her duties as administrative assistant for Judge Walker include assigning "under Judge Walker’s supervision, [visiting] judges for 18 counties.”

      . Although the original, unaltered order was not in the clerk's record, we ordered that the order be forwarded to this court for inspection. See Tex.R.App. P. 34.5(c)(1), (f) (providing that appellate court may order clerk’s record be supplemented with "relevant items” and "original documents”).

      . Tex Gov’t Code Ann. § 74.056(a) (Vernon 1998). A judge assigned under this statute has all the powers of the presiding judge of the court to which he or she is assigned. Taiwan Shrimp Farm Village Ass’n v. U.S.A. Shrimp Farm Dev., Inc., 915 S.W.2d 61, 67 (Tex.App.-Corpus Christi 1996, writ denied).

      . In re Republic Parking Sys., Inc., 60 S.W.3d 877, 879 (Tex.App.-Houston [14th Dist.] 2001, orig. proceeding); see In re Canales, 52 S.W.3d 698, 700 (Tex.2001) (orig. proceeding) (noting that visiting judge was first assigned by general assignment and later by specific assignment).

      . See Ex parte Eastland, 811 S.W.2d 571, 572 (Tex. 1991) (orig. proceeding).

      . Beard v. Beard, 49 S.W.3d 40, 49 (Tex.App.-Waco 2001, pet. denied).

      . See Davis v. Crist Indus., Inc., 98 S.W.3d 338, 341 (Tex.App.-Fort Worth 2003, pet. denied).

      . Id.; see Tex Const. art. V, § 11; Davila v. State, 651 S.W.2d 797, 799 (Tex.Crim.App.1983); see also Tex. Gov’t Code Ann. § 74.094(a) (Vernon Supp.2004-05) (providing that a district judge may hear and determine matters pending in any district court in the county regardless of whether the matter is preliminary or final or whether there is a judgment in the .matter, and his judgments, orders, or actions are valid and binding as if the case were pending in his own court).

      . See Davis, 98 S.W.3d at 341.