text:
    Crystal Michele BOLER, Appellant, v. The STATE of Texas, Appellee.
    No. 01-04-00234-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 7, 2005.
    Rehearing Overruled May 12, 2005.
    Discretionary Review Refused Dec. 7, 2005.

      Perry R. Stevens, Angleton, for Appellant.
    David Bosserman, Asst. Crim. Dist. Atty., for Appellee.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

Crystal Michele Boler, appellant, pleaded guilty to the murder of Emily Garrison. Appellant chose to have the jury determine her punishment. The jury assessed punishment at life imprisonment. In three points of error, appellant argues that the trial court fundamentally erred by (1) allowing a witness to invoke his Fifth Amendment right against self-incrimination; (2) refusing to allow appellant the right to present a defense witness; and (3) refusing to allow appellant the right to question a witness on re-direct examination. We affirm.

Facts

Deshone Boler, appellant’s husband, and the complainant were having an affair. Boler moved in with the complainant and the complainant’s four-year-old daughter. Shortly before the murder, Boler moved back in with appellant and appellant’s children. Over the course of several weeks, appellant made multiple telephone calls to the complainant. The complainant became increasingly frightened of appellant, but refused to borrow a gun for protection.

On the night of the murder, appellant called her friend, T. Anderson, and asked her if she wanted to go for a ride to the complainant’s apartment. Appellant stated that Boler was at home asleep with her children. She told Anderson that she took the complainant’s apartment key from Boler’s key ring. Appellant told Anderson that she was going to the complainant’s home to “hurt the b* * * * ” for messing with her family. Anderson refused to go with appellant. Anderson testified that appellant was a good mother and was not a violent person.

After the murder, appellant told her sister, S.N. Smith, that she had killed the complainant. Smith testified that appellant told her that she took the complainant’s apartment key from her husband’s key ring. Appellant told Smith that she had hit the complainant with a tire tool, bit her, shot her, and slit her throat. Appellant told Smith she did not want to use Boler’s gun, but she had no choice because she could not get a different one. Smith testified that appellant was not a violent person.

Appellant’s aunt, D. Rozell, testified that appellant told her that the complainant called appellant and asked appellant to come to her apartment. Appellant told Rozell that the complainant and appellant got into an argument. Appellant said that the complainant pulled a gun, but that appellant bit and shot the complainant. Rozell testified that appellant was not a violent person.

Dr. S. Pustilnik, the Chief Medical Examiner, testified that he performed the complainant’s autopsy. He stated that she received gunshot wounds to her head, to her left arm, to her abdomen, and two to her right thigh. Dr. Pustilnik testified that the complainant had several lacerations and bruises over her body. He stated that she had a cross-hatched pattern abrasion to the center of her forehead, probably caused by the grip of a gun. He testified that she had several fractured teeth and that one tooth had been knocked out. Dr. Pustilnik stated that the blood pattern on the complainant’s body indicated that she had been wearing a garment which had been removed. He testified that the injuries to the complainant’s hands were consistent with defensive wounds and did not indicate that she had scratched or hit anybody. Dr. Pustilnik also stated that the complainant was eight weeks pregnant when she was murdered.

Dr. Pustilnik also testified that the complainant had a bite mark on her left shoulder. He testified that the mark was made at or near the time of her death and was excised for comparison purposes. Dr. P. Marsh, a forensic odontologist, testified that he compared appellant’s dental impressions to the excised mark from the complainant. Dr. Marsh stated that he was able to determine with medical certainty that appellant was the person who bit the complainant.

Outside the presence of the jury, appellant called Boler to testify. Boler was represented by counsel. Boler’s counsel informed the trial court that he had advised Boler to invoke his Fifth Amendment right against self-incrimination. Following an off-the-record conversation between the trial court and the State, appellant’s counsel, and Boler’s counsel, appellant’s counsel began asking Boler questions. Boler asserted his Fifth Amendment right and refused to answer. Appellant’s counsel argued to the trial court that Boler was invoking his Fifth Amendment right on matters that were not incriminating. Appellant’s counsel asked to make an offer of proof and called Mike Ward, appellant’s investigator, to testify.

Ward testified that, prior to the trial, he went with appellant’s counsel and Boler’s counsel to interview Boler and that Boler cooperated freely. Ward testified that appellant’s counsel had asked Boler if he had a key to the complainant’s apartment, and Boler had answered, “No.” Appellant’s counsel had asked Boler if the complainant had a gun, and Boler had said that the complainant had told him she had gotten a gun. At that interview, Boler had also told Ward and the lawyers that appellant was not violent. Ward further testified, on cross-examination by the State, that Boler had not admitted to having a gun or giving a gun to anybody.

After Ward’s testimony and discussion with the attorneys, the trial court limited the questions Boler could be asked at trial to those that would not violate Boler’s Fifth Amendment rights. The State then objected to Ward’s testifying before the jury. It argued that Ward’s testimony would be hearsay and that any statements that Boler had made during the pre-trial interview were not statements against his penal interest. The trial court sustained the State’s objection that Ward’s testimony was hearsay. The trial court also ruled that Boler’s statements were not against his penal interest and that no other hearsay exception applied to the statements.

After a discussion off the record, the trial court allowed appellant to ask Boler specific questions on direct examination and allowed the State to ask certain questions on cross-examination. To ensure that Boler understood which questions he would be compelled to answer, the trial court permitted appellant and the State to ask the questions first outside the presence of the jury. After the State cross-examined Boler, appellant asked several questions on re-direct examination, to which Boler invoked his Fifth Amendment right. The trial court then ruled that the questions asked on direct and cross-examination would be allowed in the presence of the jury, but that the questions asked on re-direct could not be asked before the jury. Appellant’s counsel did not object. The jury was seated and only the agreed-upon questions were asked. Appellant’s counsel did not attempt to re-direct; nor did he object to not being allowed to conduct a re-direct examination.

Discussion

The crux of appellant’s appeal is that the trial court erred by not compelling Boler to testify after he invoked his Fifth Amendment right against self-incrimination.

Invoking and Waiving the Fifth Amendment

In her first point of error, appellant contends that her Sixth Amendment right of compulsory process for obtaining witnesses supersedes Boler’s Fifth Amendment right against self-incrimination. She asserts three “points of significance” to support her contention.

First, the questions put forth did not present a reasonable danger of incrimination. Second, the witness had already waived his privilege by responding to the questions during an investigative interview with his lawyer present. Third, if the witness did have a right to invoke the Fifth Amendment to the same questions answered previously, then testimony of the witness’s responses were [sic ] admissible as a hearsay exception under Rule 804 of the Texas Rules of Evidence.

Because appellant reiterates her third argument in her third point of error, we address only her first two arguments here.

(1) Reasonable Danger of Incrimination

The Sixth Amendment right to compulsory process is the right of the defendant to present his own version of the facts to the jury so that the jury may determine where the truth lies. U.S. Const, amend. VI; Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). “Generally a defendant’s right to compulsory process is denied when the State arbitrarily denies a defendant the right to put on the stand a witness whose testimony would have been relevant and material to his defense.” Suarez v. State, 31 S.W.3d 323, 328 (Tex.App.-San Antonio 2000, no pet.). However, a person’s “constitutional privilege against self-incrimination overrides a defendant’s constitutional right to compulsory process of witnesses.” Bridge v. State 726 S.W.2d 558, 567 (Tex.Crim.App.1986). A trial court “cannot compel a witness to answer unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken in asserting the privilege, and that the answer cannot possibly tend to incriminate the witness.” Grayson v. State, 684 S.W.2d 691, 696 (Tex.Crim.App.1984).

In determining whether the witness really apprehends danger in answering a question, the judge cannot permit himself to be skeptical; rather must he be acutely aware that in the deviousness of crime and its detection incrimination may be approached and achieved by obscure and unlikely lines of inquiry.

Id. When a witness invokes his Fifth Amendment right against self-incrimination on the advice of the witness’s counsel, the trial court is not obligated to make any further determination. Chennault v. State, 667 S.W.2d 299, 302 (Tex.App.-Dallas 1984, pet. ref'd) (citing Ross v. State, 486 S.W.2d 327, 328 (Tex.Crim.App.1972)).

The record before us is clear. Boler was represented by counsel when he was called to testify. His counsel informed the trial court that he had advised Boler to invoke his Fifth Amendment right. The trial court was not required to make a further determination to ascertain whether Boler’s assertion was valid. The trial court properly refused to compel Boler to testify.

(2) Waiver of Fifth Amendment Rights

Appellant makes two arguments that Boler waived his right to invoke his Fifth Amendment rights. First, appellant argues that because Boler, whose counsel was present, answered her lawyer’s questions during a pre-trial interview, he cannot now assert the Fifth Amendment privilege to the same questions. Second, appellant contends that because Boler answered some questions before the jury he waived his right and must answer all questions.

The Fifth Amendment is waived if “(1) the witness’ prior statements have created a significant likelihood that the finder of fact will be left with and prone to rely on a distorted view of the truth, and (2) that witness had reason to know that his prior statements would be interpreted as a waiver of the [F]ifth [Ajmendment’s privilege against self-incrimination.” Grayson, 684 S.W.2d at 695 (citing Klein v. Harris, 667 F.2d 274, 287 (2nd Cir.1981)).

Appellant has failed to show that Boler’s testimony left the jury with a distorted view of the truth. Boler testified that he knew appellant, that she was his wife, that they had a three-year-old son together, that both had children from previous relationships whom she cared for, and that she was a good mother. He stated that children from the community come to their house to play and she watched them. On cross-examination, Boler answered “No” when he was asked if a good mother takes her children to steal a car. Boler also answered “No” when asked if a good mother murders another mother in front of a three-year-old. Boler admitted that he had been convicted of unlawful possession of a firearm by a felon and of felony escape. The jury was instructed that “there are some other questions that each of the defense and the State have for Mr. Boler, but Mr. Boler has decided that he is going to exercise his privilege not to answer those questions.”

Appellant contends on appeal that Boler’s omitted testimony would have shown that (1) Boler was with appellant’s children on the night of the murder; (2) Boler did not have a key to the complainant’s apartment; (3) the complainant had a weapon; and (4) Boler believed appellant was not a violent person. Here, the record shows that (1) appellant admitted to Anderson that Boler was at home with her children on the night of the murder; (2) appellant told Anderson and Smith that she took the complainant’s apartment key from Boler’s key ring; (3) appellant told Rozzell that the complainant had a gun; and (4) Anderson, Smith, and Rozell each believed that appellant was not a violent person.

The record does not show that the jury was left with a distorted version of the truth. Nor does anything in the record indicate that Boler had reason to know that his prior statements would be interpreted as a waiver of his Fifth Amendment’s privilege against self-incrimination. We conclude that Boler did not waive his Fifth Amendment rights.

We overrule appellant’s first point of error.

Statements Against Penal Interest

In her third point of error, appellant contends the trial court erred by refusing to allow appellant’s investigator to testify as to what Boler stated during the pre-trial interview. Appellant argues that, if Boler had a Fifth Amendment privilege not to testify, then Boler’s statements were made against his penal interest and, therefore, fell within a hearsay exception. See Tex.R. Evid. 803(24). She argues that because the statements fell within a hearsay exception she should have been allowed to introduce the statements through the testimony of her investigator.

A hearsay statement is not admissible unless the statement falls under an exception. Tex.R, Evid. 802. One such exception is a statement

[W]hich was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant’s position would not have made the statement unless believing it to be true.

Tex.R. Evid. 803(24). In a criminal case, a statement that tends to expose a declarant to criminal liability is not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Id. The rules of evidence do not limit the exception to cases where the defendant is the declarant. Bingham v. State, 987 S.W.2d 54, 56 (Tex.Crim.App.1999).

There is a two-part requirement to determine whether a statement is admissible under rule 803(24). Bingham, 987 S.W.2d at 57. Both requirements must be met before a statement is admissible. Id. A trial court must determine first whether the statement in question tends to expose the declarant to criminal liability. Id. The statement must be sufficiently against the declarant’s interest to be reliable. Guidry v. State, 9 S.W.3d 133, 149 (Tex.Crim.App.1999). Then the trial court must determine whether corroborating circumstances exist that clearly indicate the trustworthiness of the statement. Bingham, 987 S.W.2d at 57.

We review a trial court’s decision to admit or exclude a hearsay statement offered under rule 803(24) for an abuse of discretion. Id. at 57. The trial court abuses its discretion when its decision is so arbitrary or so irrational as to fall outside the “zone of reasonable disagreement.” See Head v. State, 4 S.W.3d 258, 263 (Tex.Crim.App.1999).

First, the trial court was not obliged to make — and did not make — a determination as to whether the statements as to which Boler invoked his Fifth Amendment rights could or could not incriminate him. See Grayson, 684 S.W.2d at 696. Therefore, the first prong of the test for admission of the same statements via the investigator’s testimony — that the trial court determine whether the statement tends to expose the declarant to criminal liability — is not met. Thus, the trial court did not abuse its discretion by refusing to admit the investigator’s testimony.

We overrule appellant’s third point of error.

Re-Direct Examination

We construe appellant’s second point of error as an argument that appellant’s ability to confront the witness was improperly limited by the trial court’s refusal to allow her counsel to conduct a redirect examination of Boler.

As discussed above, the trial court permitted each side to ask Boler its questions and get his answers outside the presence of the jury. After the State cross-examined Boler, appellant’s counsel conducted a re-direct examination. On re-direct, appellant’s counsel asked Boler if he remembered the night appellant and Anderson went to pour paint on the complainant’s car. In response, Boler pled the Fifth Amendment. Counsel then asked Boler whether he had been taking care of the children on the night of the murder. Boler again invoked his Fifth Amendment privilege. The trial court ruled that appellant’s questions on re-direct could not be asked. Appellant did not object. Furthermore, appellant did not attempt to conduct a re-direct examination when Boler testified before the jury.

The general rule is that a contemporaneous objection is required to preserve error. Tex.R.App. P. 33.1(a); Blue v. State, 41 S.W.3d 129, 131 (Tex.Crim.App.2000) (plurality op.); Jaenicke v. State, 109 S.W.3d 793, 795 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Failure to preserve error generally waives the error. Hull v. State, 67 S.W.3d 215, 217-18 (Tex.Crim.App.2002); Muniz v. State, 851 S.W.2d 238, 255 (Tex.Crim.App.1993). Because appellant did not object, she did not preserve error under the general rule.

Appellant contends, however, that the trial court’s failure to allow re-direct examination is fundamental error. An appellate court may, in rare cases, “tak[e] notice of fundamental errors affecting substantial rights although they were not brought to the attention of the [trial] court.” Tex.R. Evid. 103(d); see Jasper v. State, 61 S.W.3d 413, 420 (Tex.Crim.App.2001); Blue, 41 S.W.3d at 132. No objection is required when the error is so egregious that it rises to constitutional dimensions. See Jasper, 61 S.W.3d at 421; Blue, 41 S.W.3d at 130. While claiming fundamental error, appellant cites no authority, makes no argument, and fails to brief as to why we should find fundamental error. See Tex.R.App. P. 38.1(h) (requiring appellant’s brief to “contain a clear and concise argument for the contents made, with appropriate citations to authorities and to the record.”). Therefore, appellant did not meet her burden of showing fundamental error.

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.

      . U.S. Const, amend. V.


source: Caselaw Access Project

author: ELSA ALCALA, Justice. TERRY JENNINGS, Justice,

license: Public Domain

text:
    Andre CLEVELAND, Appellant, v. The STATE of Texas, Appellee.
    No. 01-03-01040-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 7, 2005.
    Discretionary Review Refused Sept. 14, 2005.

      Henry L. Burkholder, III, Houston, for Appellant.
    Lori Deangelo Fix, Asst. Dist. Atty., Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Houston, for Appellee.
   ELSA ALCALA, Justice.

Appellant, Andre Cleveland, pleaded not guilty to the charge of murdering his wife. A jury found appellant guilty of murder, found against appellant on the special issue of sudden passion, and assessed punishment at confinement for life in prison. Appellant brings four points of error concerning the guilt-innocence phase of his trial. In his first two points of error, appellant contends that the trial court erred by denying his motion to suppress evidence of the search of his residence and by overruling his objection to closing argument by the State that allegedly commented on appellant’s post-arrest silence. In his third and fourth points of error, appellant contends that the State failed to disprove beyond a reasonable doubt that he killed his wife while acting in self-defense, and that the evidence is therefore legally and factually insufficient to sustain his murder conviction. Concerning the punishment stage of his trial, appellant’s fifth and sixth points of error assert that, although he had the burden to prove by a preponderance of the evidence that he killed his wife out of sudden passion arising out of an adequate cause, the evidence is legally and factually insufficient to sustain the jury’s negative answer to the sudden passion special issue. We affirm.

Background

Carolyn Cleveland and appellant, her husband, had been together for approximately 15 years. They lived in Spring, Harris County, Texas, with their 15-year-old daughter Andrea, Carolyn’s 20-year-old daughter, Jessica, and Jessica’s infant baby. Two firearms, a handgun and a shotgun, were kept in the house. On the afternoon of March 6, 2003, Carolyn gave the handgun and the shells for the shotgun to Jessica to hide because Carolyn planned to serve appellant with divorce papers that evening.

When appellant arrived at the house at about 6:00 p.m., Carolyn went downstairs to give appellant the divorce papers. Andrea, Jessica and Jessica’s baby were in the upstairs portion of the house. Appellant and Carolyn had been discussing matters for about an hour and a half when Jessica’s baby became hungry. Jessica walked downstairs, holding her five-month-old baby, to get the child’s formula from the refrigerator. As Jessica approached the kitchen, Jessica saw her mother seated on a sofa. Appellant was on his knees in front of her. Jessica heard appellant tell Carolyn that he wanted a divorce, but that “he would kill her before he would let her get a divorce and take the house.” When appellant saw Jessica, he cursed at her, accused her of causing problems in the marriage, and told her to go back upstairs. Jessica got the baby’s formula and began to return to her room.

As Jessica reached the top of the stairs, she heard her mother “squeal” loudly. Jessica put her baby in a room upstairs and ran downstairs to help her mother, accompanied by Andrea, who had also heard the scream. Andrea and Jessica saw appellant pin Carolyn down with one of his knees as he used one arm to beat her and the other arm to stab her. Andrea and Jessica tried to help Carolyn, but appellant “wrestled” them. Although Jessica managed to escape into the kitchen and get a knife, appellant took the knife from her and used it to stab her in the chest. When Carolyn collapsed, bleeding, on the floor by the front door, Jessica went upstairs to call 911.

Appellant scrubbed the sofa with a towel where Carolyn had been seated, but then returned to stabbing Carolyn as she remained face down on the floor. Andrea tried to help Carolyn by striking appellant with a cooking pan, but she had to back away from him when he swung at her. After Jessica called 911, she and Andrea attempted CPR on Carolyn. Appellant did not assist, scream, cry, or do anything to help Carolyn. He did, however, treat his own injury by wrapping a cloth around the small cut on his hand.

At 8:39 p.m., a Harris County deputy constable approached appellant’s house in response to a stabbing-in-progress call. Appellant walked out of the house towards the deputy and very calmly said, “I stabbed her because she always — ,” but did not complete his sentence. The deputy handcuffed appellant and took him into custody. When the deputy heard Andrea and Jessica screaming hysterically for help, he entered the house. He brought appellant with him, in handcuffs, because no other officers were present to assist. As Andrea and Jessica continued to attempt CPR on their mother, appellant appeared “very, very calm” as he observed his wife on the floor.

After emergency personnel arrived at the house and pronounced Carolyn dead, the deputy returned the handcuffed appellant to the patrol car. Harris County Sheriffs Deputy J.D. Gideon arrived at the scene and read appellant his rights. Appellant waived his rights and agreed to speak to the officers.

J. Ortiz, a deputy assigned as a crime-scene technician and latent fingerprint examiner in the identification division of the Harris County Sheriffs Department, obtained appellant’s consent to search the house. Deputy Ortiz entered the house, photographed and videotaped it, and collected evidence that included six knives. The autopsy showed that Carolyn received 22 stab wounds and died as a result of multiple, sharp-force injuries.

Appellant gave an oral statement to Deputy Gideon while in custody at the police station. In that conversation, appellant told Deputy Gideon that his wife informed him that she had filed for divorce, that she would take the house and the money, that he “lost it,” walked to the kitchen, went back to the couch, and stabbed her.

At trial, appellant testified that he did not want to divorce Carolyn and still loved her, but he acknowledged that he had previously filed for divorce and that they had discussed divorce months earlier. Appellant claimed that, when he knelt down before Carolyn in an attempt to persuade her to attend marriage counseling with him, she pulled a four-inch knife that was slightly larger than a steak knife from the side of the sofa, which caused him to fear for his life. According to appellant, Carolyn swung the knife at him once, but she did not cut him, and he quickly disarmed her. Appellant stated that, at that point, “I panicked and I started stabbing her.” Appellant described his mental state at the time of the stabbing as “in another world,” “panicking,” and in “fear of [his] life,” but he denied being upset. Appellant acknowledged that nothing prevented him from simply leaving the house after he took the knife from Carolyn and that Jessica, who cut him with a knife, inflicted the only wound that he received that night. Appellant denied stabbing Jessica and denied making any statement about stabbing his wife to the deputy constable who first arrived at the house. Appellant acknowledged that, before peace officers responded to the stabbing at his house, he spoke on the telephone to family members, his employer, and to the 911 operator, whom he told that he had stabbed his wife, but without mentioning self-defense.

Sufficiency of the Evidence to Establish Murder by Disproving Self-Defense

Because appellant raised the issue of self-defense, to convict him for murder, the State had to prove the elements of the offense beyond a reasonable doubt, and the State had to persuade the jury that appellant did not kill his wife in self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003). In his third and fourth points of error, appellant contends that the evidence is legally and factually insufficient to support his conviction for murder because the State did not rebut his assertion of self-defense beyond a reasonable doubt.

In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App.2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).

In a factual sufficiency review, we view all the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App.2004). In conducting a factual sufficiency review, we must discuss the evidence that appellant contends most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Unless the available record clearly reveals that a different result is appropriate, we must defer to the jury’s determination concerning what weight to give conflicting testimony because resolution of facts often turns on evaluation of credibility and demeanor. See Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App.2000).

A person commits the offense of murder if he intentionally or knowingly causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual. Tex. Pen.Code Ann. §§ 19.02(b)(1), 19.02(b)(2) (Vernon 2003). However, a person is generally justified in using deadly force against another if he reasonably believed that deadly force was necessary to protect himself against the other’s use or attempted use of unlawful force, and a reasonable person in the actor’s situation would not have retreated. Tex. Pen.Code Ann. §§ 9.31(a), 9.32(a) (Vernon 2003). A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani, 97 S.W.3d at 594. Once the defendant produces that evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion does not require the State to produce evidence; it requires only that the State prove its case beyond a reasonable doubt. Id. A determination of guilt by the factfinder implies a finding against the defensive theory. Id. The issue of self-defense is a fact issue to be determined by the jury, which is free to accept or reject the defensive issue. Saxton v. State, 804 S.W.2d 910, 913-14 (Tex.Crim.App.1991). As the sole judge of the weight and credibility accorded any witness’s testimony, the jury is free to believe or disbelieve the testimony of all witnesses, and to accept or reject any or all of the evidence produced by the respective parties. See Upton v. State, 853 S.W.2d 548, 552 (Tex.Crim.App.1993).

Appellant contends that the evidence is legally and factually insufficient to disprove that he acted in self-defense because he feared for his life when his wife swung at him with a knife. By his own admission, however, appellant stabbed his wife after disarming her, while she was unarmed and seated on a sofa, even though he could have easily left the house instead. Appellant acknowledged that his wife never harmed him physically in any way. From appellant’s own testimony, a rational jury could have therefore concluded that deadly force was not immediately necessary for appellant to defend himself. In addition, Andrea and Jessica both testified that appellant stabbed Carolyn in the back as she was lying face down and bleeding by the front door. A rational jury also could also have reasonably concluded that appellant’s conduct in continuing to stab his wife in the back as she lay bleeding on the floor was inconsistent with his claim of self-defense. Finally, the jury could have reasonably found appellant’s claims of self-defense incredible because he did not claim self-defense until he testified at trial.

After reviewing all of the evidence in the light most favorable to the verdict for legal sufficiency analysis, we conclude that a rational jury could have reasonably found against appellant on the issue of self-defense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Upon viewing all the evidence in a neutral light for factual sufficiency analysis, we further conclude that the jury was justified in finding appellant guilty of murder beyond a reasonable doubt by impliedly finding against him on his claim of self-defense. See Escamilla, 143 S.W.3d at 817. The evidence supporting the verdict is not so weak that the jury’s finding appellant guilty of murder beyond a reasonable doubt is clearly wrong and manifestly unjust; nor is appellant’s contrary evidence so strong that the State’s burden to disprove self-defense beyond a reasonable doubt could not have been met. See id.

We overrule appellant’s third and fourth points of error.

Motion to Suppress Evidence

In his first point of error, appellant contends that the trial court erred by allowing the State to introduce evidence of the search of appellant’s residence in violation of appellant’s federal constitutional right against unreasonable searches and seizures, because the State faded to prove that appellant consented to the search voluntarily, knowingly, and intelligently.

A search conducted with the voluntary consent of the suspect is an exception to the constitutional requirement that a search be conducted only pursuant to a warrant issued upon a finding of probable cause. See Ohio v. Robinette, 519 U.S. 33, 40, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973); Maxwell v. State, 73 S.W.3d 278, 281 (Tex.Crim.App.2002); Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App.2000). The State must prove by a preponderance of the evidence that the consent was freely and voluntarily given. Maxwell, 73 S.W.3d at 281. We examine all of the circumstances to determine whether the State met this burden. Id. To be valid, consent must not be coerced by explicit or implicit means, by implied threat, or by covert force. Schneckloth, 412 U.S. at 228, 93 S.Ct. at 2048; Carmouche, 10 S.W.3d at 331. Among the factors that determine volun-tariness are whether the consenting person is in custody, whether he was arrested at gunpoint, and whether the person was informed that he did not have to consent. Carmouche, 10 S.W.3d at 331.

We review the trial court’s ruling on a motion to suppress evidence for abuse of discretion. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). At a suppression hearing, the trial court is the sole and exclusive trier of fact and judge of the credibility of the witnesses and them testimony. Maxwell, 73 S.W.3d at 281. The appropriate standard for reviewing a trial court’s ruling on a motion to suppress is bifurcated: we defer almost totally to the trial court’s determination of historical facts and review de novo the court’s application of the law. Id.; Guzman, 955 S.W.2d at 89.

Appellant contends that he did not consent voluntarily to the search of his house because, when he gave the consent (1) he had not been given Miranda warnings; (2) he had not been told that he had the right to decline consent; (3) he had not been taken before a magistrate; and (4) he was handcuffed in the backseat of the patrol car. The record does not support appellant’s first two assertions, but shows instead that, when Deputy Gideon first approached appellant at his house on the night of the stabbing, the deputy read appellant his rights. Additionally, the written consent form that appellant signed informed him that he had a right to decline consent, as follows:

I, Andre Paul Cleveland, having been informed by the below officers of my constitutional right not to have a search made of my premises and/or vehicle hereafter mentioned without a search warrant and of my right to voluntarily consent to such a search, hereby authorize J. Ortiz and J[.] Gideon and other peace officers of the Harris County Sheriff’s Department, to conduct a complete search of [my] residence located at 2415 Woodsboro, in Harris County, Texas. These officers are authorized by me to seize any and all letters, papers, material and other property, which they desire. This consent is being given to the above peace officers freely and voluntarily and with out [sic] threats or promises of any kind and is given with my full and free consent.

Appellant correctly asserts that he was never taken before a magistrate prior to giving his consent, but cites no authority requiring that he appear before a magistrate for the consent to be voluntary. See Rosalez v. State, 875 S.W.2d 705, 722 n. 20 (Tex.App.-Dallas 1993, pet. ref'd) (“[T]he failure to take an accused before a magistrate does not in itself invalidate a consent to search unless such failure in some manner caused or contributed to bringing about the consent to search.”). Because the record shows that Deputy Gideon read appellant his rights at the scene before he gave consent, and also shows that appellant was informed, both orally and in writing, of his constitutional right not to have officers search his residence, his not receiving those warnings from a magistrate does not render his consent to search involuntary.

Appellant’s last assertion concerning the voluntariness of his consent to search is that he was handcuffed in the backseat of the patrol car before he signed the consent form. The record shows that, when Deputy Ortiz approached appellant to request his consent, the deputy read the consent-to-search form aloud to appellant, appellant indicated that he understood it and signed it after his handcuffs were removed. The record further demonstrates that the officers’ guns were not drawn when appellant consented, and that no threats were made to appellant. See Rayford v. State, 125 S.W.3d 521, 528-29 (Tex.Crim.App.2003) (“Nor is consent rendered involuntary merely because the accused is under arrest, at least when the officers’ guns are not drawn.”). Appellant’s consent was not rendered involuntary merely because he was under arrest in handcuffs in the rear seat of a patrol car before signing the consent form.

We conclude that appellant’s consent was voluntary under the circumstances demonstrated by the record, which show that the written consent form was read aloud to appellant, who understood it, that appellant was read his rights before giving his consent, that appellant was advised in writing that he had a constitutional right not to have a search made of his premises without a warrant, and that no threats or promises were made to induce appellant’s consent. Additionally, appellant’s demean- or was described as “fully cooperative,” “normal,” “seemed like he knew what he was doing,” and “functioning okay.”

Viewing the circumstances as a whole and giving deference to the trial court’s implied findings of historical fact, we hold that the State established by a preponderance of the evidence that appellant voluntarily consented to the search of his residence, and, therefore, that the trial court did not abuse its discretion by overruling appellant’s stated objections to admitting the evidence seized from his residence.

We overrule appellant’s first point of error.

Jury Argument Concerning Post-Arrest Silence

In his second point of error, appellant contends that the portion of the prosecutor’s closing argument to the jury regarding appellant’s self-defense claim “was a comment on the appellant exercising his right to remain silent under the State Constitution.” Appellant’s complaint on appeal concerns only article I, section 10 of the Texas Constitution. See Tex. Const, art. I, § 10.

Appellant complains of the following closing argument by the State’s attorney during the guilt-innocence phase of trial:

State’s attorney: ... [H]e never even uttered a word about self-defense until yesterday from that stand. That’s the first time we ever heard that ludicrous story ... Lots of chances to tell about self-defense.
State’s attorney: He talked to his momma, he talked to his sister, he talked to Boston Market, he talked to a 911 operator. He talked to Hagerty. He talked to Gideon. Not once did the word “self-defense” come out of his mouth. He got to sit right there in that chair, watch every one of the State’s witnesses come in here and tell what they had to say and then he got to formulate his defense. Unlike any other witness, he got a preview of the State’s case.

Appellant’s trial counsel objected to the argument by asserting that appellant “has a right to remain silent. I object to being improper argument on the part of counsel.” The trial court overruled the objection and allowed appellant a “continuing objection.”

Article I, section 10 of the Texas Constitution protects a defendant’s post-arrest silence even before his Miranda warnings have been administered. Heidelberg v. State, 144 S.W.3d 535, 537 (Tex.Crim.App.2004). In contrast, the Fifth Amendment of the federal constitution protects post-arrest silence made only after a defendant’s Miranda warnings have been given. Id.

Rule of Appellate Procedure 33.1(a)(1)(A) provides, in part, that for a complaint to be presented on appeal, a timely request, objection, or motion must have been made to the trial court, which “states the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” Tex.R.App. P. 33.1(a)(1)(A). Additionally, it is well-settled that the legal basis of a complaint raised on appeal cannot vary from the legal basis asserted at trial. Heidelberg, 144 S.W.3d at 537. Heidelberg held that an objection at trial, that Heidelberg’s Fifth Amendment rights were violated, was not sufficient to preserve a complaint on appeal that his rights to post-arrest silence under the Texas Constitution were violated. See id.

To preserve error concerning the greater post-arrest silence protections afforded to defendants under the Texas Constitution, a defendant’s objection must refer specifically to either the Texas Constitution or the Sanchez case. See Heidelberg, 144 S.W.3d at 537; Sanchez v. State, 707 S.W.2d 575, 582 (Tex.Crim.App.1986). Because appellant complained only generally at trial of his “right to remain silent,” without any further assertions concerning his rights to post-arrest silence under either the Texas Constitution or the Sanchez case, we hold that appellant’s trial objection was not sufficient to make the trial court aware of his complaint. See Heidelberg, 144 S.W.3d at 537; Sanchez, 707 S.W.2d at 582; Tsx.R. Evm Ann. 103(a)(1). We further hold that the specific grounds of appellant’s complaint were not apparent from the context. See Tex.R.App. P. 33.1(a)(1)(A). Appellant has not preserved this issue on appeal.

We overrule appellant’s second point of error.

Sufficiency of Evidence of Sudden Passion in Punishment Phase of Trial

Until September 1, 1994, evidence that the defendant killed a person while acting under the immediate influence of sudden passion arising from an adequate cause was raised by a defendant at the guilt-innocence phase of trial; to obtain a conviction for murder, the State had the burden to disprove the sudden passion issue beyond a reasonable doubt. Bradley, 688 S.W.2d at 851. In 1993, the Legislature changed the sudden passion issue from a guilt-innocence issue to a punishment issue, as follows: “At the punishment stage of a trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree.” See Act of May 29, 1993, 73rd Leg., R.S., ch 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614 (codified by Tex. Pen. Code Ann. § 19.02(d) (Vernon 2003)); see also Hernandez v. State, 127 S.W.3d 206, 211-12 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (holding that defendant bears burden at punishment phase of trial to prove issue of sudden passion by preponderance of evidence). The jury charge at the punishment phase of appellant’s trial contained a special issue asking the jury whether appellant proved by a preponderance of the evidence that he killed his wife out of sudden passion arising from an adequate cause. The jury’s punishment verdict was: “We do not.”

In addition to sudden passion, other offenses in our Penal Code place the burden of proof on the defendant to prove certain issues by a preponderance of the evidence. For example, the offense of aggravated kidnapping similarly places the burden of proof on the defendant in the punishment phase of trial; if the defendant proves by a preponderance of the evidence that the kidnapping victim was voluntarily released in a safe place, the defendant receives a reduced punishment range. See Tex. Pen. Code Ann. § 20.04(d) (Vernon 2003). The Penal Code also proscribes that certain defenses are affirmative defenses that the defendant must prove in the guilt-innocence phase of trial by a preponderance of the evidence. See Tex. Pen.Code Ann. § 2.04 (Vernon 2003) (stating law of affirmative defenses); see also Tex. Pen.Code Ann. § 8.01 (Vernon 2003) (insanity is affirmative defense); Tex Pen.Code Ann. § 8.05 (Vernon 2003) (duress is affirmative defense); Tex. Pen.Code Ann. § 25.05(d) (Vernon 2003) (inability to provide child support is affirmative defense for criminal nonsupport). Similarly, a defendant is presumed to be competent to stand trial unless proved incompetent by a preponderance of the evidence. See TexCode CRiM. PROC. Ann. art. 46B.003(b) (Vernon Supp.2004-2005).

The issue of sudden passion in a murder case thus places the burden of proof on the defendant to prove the issue by a preponderance of the evidence in the same manner as the following: voluntary release in an aggravated kidnapping case; the affirmative defenses of insanity and duress; the affirmative defense of inability to pay child support in a criminal nonsupport case; and proof of incompetency to stand trial.

Appellant’s fifth and sixth points of error challenge the legal and factual sufficiency of the evidence concerning the jury’s negative finding on the affirmative defense of sudden passion, which appellant had the burden to prove by a preponderance of the evidence. Tex. Pen.Code Ann. §§ 19.02(d); 20.04. Well-established law permits appellate review of the factual sufficiency of the evidence to support a jury’s negative finding on an issue for which the defendant had the burden of proof at trial. Meraz v. State, 785 S.W.2d 146, 154-55 (Tex.Crim.App.1990); Hernandez, 127 S.W.3d at 211-12; Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App.2004).

Concerning legal sufficiency challenges to a jury’s negative finding on an issue for which the defendant had the burden of proof at trial, however, in Patterson v. State, 121 S.W.3d 22, 24 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d, untimely filed), we concluded that lack of jurisdiction precluded review of these challenges. We now overrule that portion of Patterson and hold, based on the reasoning set out below, that we may properly review both types of sufficiency challenges — those by which we review the evidence as a matter of law, for legal sufficiency, and those by which we review the evidence neutrally, for factual sufficiency.

Legal Sufficiency Reviews of Sudden Passion

A. Jurisdiction

The State contends that we lack jurisdiction to conduct a legal sufficiency review of a jury’s negative finding on the sudden passion issue. See Patterson, 121 S.W.3d at 24; see also Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref'd) (“When a defendant seeks appellate review of a jury’s failure to make a finding on which the defendant has the burden of proof, such as on an affirmative defense, the defendant invokes our factual review jurisdiction.”) (emphasis added). Naasz relied on Meraz. Naasz, 974 S.W.2d at 421 (citing Meraz, 785 S.W.2d at 154-55). Meraz, however, did not hold that appellate courts have no jurisdiction to conduct legal sufficiency reviews on a jury’s negative finding of an issue that the defendant must prove. Meraz addressed only what review governs factual sufficiency reviews of a jury’s negative finding on issues that the defendant had the burden to prove. See Meraz, 785 S.W.2d at 154-55; Howard v. State, 145 S.W.3d 327, 333-34 (Tex.App.-Fort Worth 2004, no pet.).

Pursuant to article V, section 6(a) of the Texas Constitution, “Courts of Appeals shall have appellate jurisdiction ... conclusive on all questions of fact brought before them on appeal or error.” Clewis v. State, 922 S.W.2d 126, 129 & n. 4 (Tex.Crim.App.1996) (quoting Tex. Const, art. V, § 6(a)). The Constitution thus permits review of both legal and factual sufficiency of the evidence when the State has the burden of proof concerning elements of the offense. See id. at 131, n. 4 (citing Tex Const, art. V, §§ 5 & 6).

In civil cases, appellate courts have jurisdiction to review the evidence for legal sufficiency when an appellant challenges the legal sufficiency of the evidence to support the jury’s adverse answer to an issue on which he had the burden of proof. See Howard, 145 S.W.3d at 333-34 (citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989)). We discern no rational basis on which to reconcile Patterson’s conclusion, that we lack jurisdiction to review challenges to the legal sufficiency of the evidence to support a factfinder’s negative finding on an issue that a criminal defendant had to prove at trial, with Article V, section 6(a)’s conferring this Court with final, conclusive jurisdiction over factual resolutions, which jurisdiction we have consistently and unquestionably exercised to review legal and factual sufficiency challenges in criminal cases in which the State had to prove the elements of the offense at trial, and in civil cases in which either party challenges the factfinder’s negative finding on issue that the challenging party had to prove at trial. We therefore conclude and hold that Article V, Section 6(a) of the Constitution vests this Court with jurisdiction to review the evidence as a matter of law for legal sufficiency and neutrally for factual sufficiency. See Howard, 145 S.W.3d at 332. Accordingly, a majority of the en banc court overrules the portion of the Patterson opinion in which we stated that we have no jurisdiction to conduct a legal sufficiency review of the jury’s negative finding on an issue that the defendant had to prove. See Patterson, 121 S.W.3d at 24.

B. Standard of Review

We must next determine what standard of review applies for determining the legal sufficiency of the evidence concerning negative findings on issues that the defendant had to prove by a preponderance of the evidence.

We review legal and factual sufficiency of the evidence when the State has the burden of proof concerning elements of an offense as follows. Review for legal sufficiency assesses the evidence in the light most favorable to the jury’s verdict and is the minimum standard for comporting with federal due process as stated in Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. See Clewis, 922 S.W.2d at 128-29. Review for factual sufficiency assesses the evidence neutrally. See Clewis, 922 S.W.2d at 131-33. The remedies an appellant seeks and receives from the reviews also differ. If the evidence is legally insufficient to establish the elements of the offense, the appellant is acquitted and may not be retried for the offense; if the evidence is factually insufficient to establish the elements of the offense, the appellant may be retried for the offense. Id. at 131.

As stated in Meraz, in criminal cases in which a defendant challenges the factual sufficiency of the evidence to support a jury’s negative finding on an issue that the defendant had to prove, the standard is the same used in civil cases, specifically, whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Meraz, 785 S.W.2d at 154-55; Howard, 145 S.W.3d at 330-33. Although the Meraz court concluded that the proper standard for review of factual sufficiency challenges to a negative finding on an issue that the defendant had to prove is not the legal sufficiency standard used in Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89, Meraz is silent concerning what standard of review applies to evaluate the legal sufficiency of the evidence when a jury returns a negative answer on an issue that the defendant had to prove.

Consistent with our reliance on civil law for the standard of review for factual sufficiency reviews, we conclude that the proper standard in criminal cases for review of legal sufficiency challenges to a jury’s negative finding on an issue that the defendant had to prove is the same standard applied in civil cases. See Howard, 145 S.W.3d at 333 (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989)); Meraz, 785 S.W.2d at 154-55; Zuniga, 144 S.W.3d at 482. Under that standard, a criminal defendant who attacks the legal sufficiency of the evidence to support a negative finding on an issue that he had to prove must overcome two hurdles. Howard, 145 S.W.3d at 333-34 (citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991)). First, the court of appeals must examine the record for evidence that supports the finding while ignoring all evidence to the contrary. Id. at 334. Second, if no evidence supports the negative finding, the appellate court examines the entire record to determine whether it establishes the contrary proposition as a matter of law. Id. (citing Sterner, 767 S.W.2d at 690).

We hold that the Sterner standard is the proper standard by which to review a criminal defendant’s legal sufficiency challenge to the trier of fact’s negative finding of an issue that the defendant had to prove by a preponderance of the evidence. See id. Our holding today places us in line with a majority of Texas courts that apply the civil standard from Sterner to these challenges. See Howard, 145 S.W.3d at 332; Nolan v. State, 102 S.W.3d 231, 237-38 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (applying civil standard to legal sufficiency challenge to jury’s rejecting affirmative defense); Centell v. State, Nos. 07-98-0344-CR & 07-98-0345CR, 2000 WL 96246, at *4 (Tex.App.-Amarillo Jan.28, 2000, pet. ref'd) (not designated for publication) (same); Brena v. State, No. 07-97-0429-CR, 1999 WL 606681, at *2 (Tex.App.-Amarillo Aug.11, 1999, pet. ref'd) (not designated for publication) (same); Moranza v. State, 913 S.W.2d 718, 723 (Tex.App.-Waco 1995, pet. ref'd) (same); Cover v. State, 913 S.W.2d 611, 619 (Tex.App.-Tyler 1995, pet. ref'd) (same).

The Sterner standard for legal sufficiency, employed to review the jury’s negative finding on an issue that the criminal defendant had to prove, differs from the Jackson v. Virginia legal sufficiency standard. See Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2788-89. Jackson addresses a due process review of the evidence in the light most favorable to the jury’s verdict concerning the elements of the offense that the State had to prove beyond a reasonable doubt. See id. The Sterner standard for legal sufficiency review, however, applies only when reviewing the evidence to support the factfinder’s having rejected an issue that the defendant had to prove by a preponderance of the evidence. Sterner, 767 S.W.2d at 690. Additionally, although a finding of legal insufficiency of the evidence under the Jackson v. Virginia standard would require acquittal of the defendant, see 443 U.S. at 318-19, 99 S.Ct. at 2788-89, a holding of legal insufficiency of the evidence to support the jury’s negative finding on the issue of sudden passion would compel the conclusion that the defendant established sudden passion as a matter of law and therefore compel a remand for sentencing on the second-degree punishment range for sudden passion. Tex. Pen.Code Ann. § 19.02(d).

As when addressing other legal and factual sufficiency challenges in criminal cases, in applying the Sterner legal-sufficiency standard of review, we must also defer to the factfinder’s determination of the credibility of the witnesses and the weight to give evidence. See Muniz, 851 S.W.2d at 246 (stating that in conducting legal sufficiency review of evidence under the Jackson standard, appellate courts do not reevaluate weight and credibility of evidence, but ensure only that jury reached rational decision); Johnson, 23 S.W.3d at 8 (stating that appellate court conducting factual sufficiency review must defer to jury’s determination concerning what weight to give conflicting testimony because resolution often turns on evaluation of credibility and demeanor). Applying the two-part Sterner standard for legal sufficiency in criminal cases thus gives full play to the factfinder’s role as the exclusive determiner of facts.

Assuming, in a hypothetical case, that applying the first prong of the Sterner legal-sufficiency standard showed that no evidence in the record supported the jury’s negative finding on the sudden passion issue, we would then be required to examine the record under the second prong of the Sterner test. See Sterner, 767 S.W.2d at 690. Applying the second prong, we would search the entire record to determine whether the defendant established, as a matter of law, that he caused the death out of sudden passion arising out of adequate case. See id.; Tex. Pen.Code Ann. § 19.02(d). If the search of the record revealed evidence of sudden passion that was subject to a credibility assessment by the factfinder, which the jury was therefore entitled to disbelieve, we would not consider that evidence in our matter-of-law assessment. See Muniz, 851 S.W.2d at 246; Johnson, 23 S.W.3d at 8. If, however, the search of the record revealed evidence of sudden passion that was not subject to a credibility assessment by the jury, for example, a stipulation of evidence by the State and the defendant stating that the defendant caused the death of the deceased out of sudden passion arising out of an adequate cause, then the evidence would show as a matter of law that the defendant proved the issue of sudden passion.

We can envision no circumstances in which physical evidence could conclusively resolve the issue of sudden passion and acknowledge that, in most cases, sudden passion is resolved exclusively by the jury’s assessment of whether the witness is credible. The Sterner matter-of-law determination is thus left for those rare instances in which the sudden passion issue can be determined from evidence that is not subject to a credibility determination by the jury as, for example, a stipulation of evidence by the parties. Although this is a very high standard that a defendant would rarely meet, it nevertheless provides a mechanism that enables appellate courts to exercise their constitutionally vested jurisdiction and provide relief to a defendant who can conclusively establish that the jury disregarded evidence that was not subject to a credibility assessment and which conclusively established the defendant’s punishment-mitigation issue.

C. Analysis of Appellant’s Sudden Passion Facts for Legal Sufficiency

Applying the Sterner matter-of-law standard, we first examine the record solely for evidence that supports the jury’s negative finding on the issue of sudden passion, while ignoring all evidence contrary to that finding. “Sudden passion means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.” Tex. Pen.Code Ann. § 19.02(a)(2) (Vernon 2003). Adequate cause means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Tex. Pen.Code Ann. § 19.02(a)(1) (Vernon 2003).

Appellant denied being upset, angry or irate. Appellant appeared calm and did not scream, cry, or do anything to help Carolyn. The record shows no immediate influence arising out of an adequate cause when appellant stabbed his wife as she lay bleeding on the floor, after interrupting the stabbing to scrub the sofa where he had stabbed her earlier. Ignoring all evidence contrary to the jury’s negative finding on the sudden-passion issue, we conclude that some evidence in the record shows that appellant did not kill his wife out of sudden passion arising from an adequate cause. Having reached that conclusion, our legal sufficiency inquiry ends. See Sterner, 767 S.W.2d at 690; Howard, 145 S.W.3d at 333-34. We hold that the evidence concerning the jury’s negative finding on sudden passion is legally sufficient as a matter of law.

We overrule appellant’s fifth point of error.

Factual Sufficiency Review of Sudden Passion

An appellate court may properly conduct a factual sufficiency review of the jury’s negative finding on the sudden passion issue in the punishment stage of trial. Hernandez, 127 S.W.3d at 211-12 (holding that appellate court may conduct factual sufficiency review of jury’s negative answer to issue of sudden passion special issue that defendant had burden to prove by preponderance of evidence in punishment phase of trial); see Zuniga, 144 S.W.3d at 482 (stating that criminal defendant may assert factual insufficiency challenge to attack jury’s failure to find elements of affirmative defense, or issue on which defendant had burden of proof). When the defendant has asserted an affirmative defense or has the burden of proof on an issue, a reviewing court considers all the evidence and determines whether the judgment is “so against the great weight and preponderance of the evidence so as to be manifestly unjust.” Id. In our factual sufficiency review of the evidence, we review all of the evidence neutrally, but we do not intrude on the factfinder’s role as the sole judge of the weight and credibility given to any witness’s testimony. See Johnson, 23 S.W.3d at 7-8.

Appellant asserts two arguments that the evidence is factually insufficient to establish sudden passion. He first contends that the State conceded that he killed his wife out of sudden passion by stating as follows in its closing argument in the guilt-innocence phase of trial: “Well, let’s look at what evidence there is of intent to kill. 22 stab wounds in the front, in the back, on the side, in the head, on the face. That’s not intent to kill; that’s overkill. That’s hatred and that’s — that’s: If I can’t have you, nobody can.” Contrary to appellant’s assertion, the State’s closing argument and theory at trial simply demonstrated “hatred” and “overkill,” which do not categorically constitute passion arising out of an adequate cause. See Tex. Pen.Code Ann. § 19.02(a)(1) (defining adequate cause as anger, rage, resentment, or terror, in a person of ordinary temper “sufficient to render the mind incapable of cool reflection.”); Hernandez, 127 S.W.3d at 211 (holding that ordinary anger or causes of defendant’s own making are not legally adequate causes).

In his second factual sufficiency challenge, appellant asserts that he met the statutory definition of sudden passion through evidence that he felt “strange” and “upset.” We disagree. Feeling “strange” and “upset” does not constitute sudden passion arising out of adequate cause. See Tex. Pen.Code Ann. § 19.02(a)(1) (defining adequate cause as anger, rage, resentment, or terror, in a person of ordinary temper “sufficient to render the mind incapable of cool reflection.”); Gaston v. State, 930 S.W.2d 222, 226 (Tex.App.-Austin 1996, no pet.) (holding that although defendant “went blank or into a trance, stopped thinking, felt hurt and angry, and lost control of himself’ due to wife’s nagging, taunting, and promising divorce and property dispute, evidence was not adequate cause to support sudden passion jury instruction).

Appellant does not contend that the evidence is factually insufficient because he felt “panicked.” But, even if evidence of panic could constitute sudden passion here, we note further that appellant’s feeling panicked conflicts with other evidence that he was calm, not upset, not angry and not irate. Reconciling these conflicts was thus best left to the jury to resolve by credibility assessments of the witnesses’ testimony. Compare Miller v. State, 753 S.W.2d 473, 476 (Tex.App.-Houston [1st Dist.] 1988, pet. ref'd) (holding evidence of panic insufficient to raise sudden passion issue, and thus no jury instruction required) with Brunson v. State, 764 S.W.2d 888, 895 (Tex.App.-Austin 1989, no pet.) (holding evidence of panic sufficient evidence to raise issue of sudden passion requiring jury instruction on issue).

Evidence that rebuts appellant’s defense of sudden passion arising from an adequate cause includes testimony that described his demeanor as not upset, not angry, not irate, but calm, in addition to evidence that appellant continued to stab his wife as she lay bleeding on the floor, even after he stopped to scrub her blood from the sofa where he had stabbed her earlier.

After viewing all of the evidence in a neutral light, we hold that the evidence supporting the jury’s failure to find that appellant acted in sudden passion is not so against the great weight and preponderance of the evidence that the verdict is clearly wrong and manifestly unjust. See Zuniga, 144 S.W.3d at 481.

We overrule appellant’s sixth point of error.

Conclusion

We affirm the judgment of the trial court.

En Banc court consists of Chief Justice RADACK and Justices TAFT, NUCHIA, JENNINGS, KEYES, ALCALA, HANKS, HIGLEY, and BLAND.

Justice JENNINGS, concurring, joined by Justice KEYES.

TERRY JENNINGS, Justice,

concurring.

Because the en banc court errs in holding that an appellate court is to employ the same standard of review “applied in civil cases” in conducting a legal sufficiency review of a fact finder’s rejection of an accused’s defensive theory, and in overruling Patterson v. State, 121 S.W.3d 22 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d), I concur only in the judgment of the en banc court.

The en banc court holds that “the proper standard in criminal cases for review of legal-sufficiency challenges to a jury’s negative finding on an issue that the defendant had to prove is the same standard applied in civil cases.” In overruling Patterson, the majority emphasizes:

We discern no rational basis on which to reconcile Patterson’s conclusion, that we lack jurisdiction to review challenges to the legal sufficiency of the evidence to support a factfinder’s negative finding on an issue that a criminal defendant had to prove at trial.

However, the standard of review utilized in civil cases to determine the legal sufficiency of the evidence in regard to a negative finding on an issue on which a party has the burden of proof is inapplicable in the criminal law context.

In a civil case, when a party attacks the legal sufficiency of an adverse finding on an issue on which the party has the burden of proof, the party “must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (emphasis added). In reviewing a “matter of law” challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence that supports the finding, the reviewing court must then examine the entire record to determine if the contrary proposition is “established as a matter of law.” Id. A point of error should be sustained only if the contrary proposition is conclusively established. Id. Such a “matter of law” challenge is not applicable in criminal cases where the State has the burden of persuasion, not a burden of production, in disproving the defensive theories of an accused. Saxton v. State, 804 S.W.2d 910, 912-13 (Tex.Crim.App.1991).

In Saxton, the Court of Criminal Appeals reversed the court of appeals’ holding that “the State failed to produce evidence to refute [the defendant’s] claim of self-defense and that all of the evidence is uncontradicted and is consistent with self-defense.” Id. at 912 (citation omitted). The court specifically noted that the appellate court’s “implicit holding that [the defendant] established ‘as a matter of law’ that he acted in self-defense is incorrect.” Id. at 912 n. 4. The court disavowed its previous use of the “as a matter of law” language in the context of the issue of self-defense, “[g]iven that the question of whether the accused acted in self-defense is a fact issue for the trier of fact’s determination and that ‘beyond a reasonable doubt’ is the required level of proof.” Id. at 912 n. 3. In holding that the court of appeals utilized the wrong standard of review, the court emphasized:

[T]he State has the burden of persuasion in disproving the evidence of self-defense. That is not a burden of production, i.e., one which requires the State to affirmatively produce evidence refuting the self-defense claim, but rather a burden requiring the State to prove its case beyond a reasonable doubt....
[M]ore importantly, case law instructs us that the issue of self-defense is an issue of fact to be determined by the jury. Defensive evidence which is merely consistent with the physical evidence at the scene of the alleged offense will not render the State’s evidence insufficient since the credibility determination of such evidence is solely within the jury’s province and the jury is free to accept or reject the defensive evidence. A jury verdict of guilty is an implicit finding rejecting the defendant’s self-defense theory.

Id. at 918-14 (alterations in original) (citations omitted).

Accordingly, it is now well-settled law that in reviewing the legal sufficiency of the evidence in regard to a fact finder’s rejection of a defensive issue, “we look not to whether the State presented evidence which refuted appellant’s [defensive evidence], but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of [the offense] beyond a reasonable doubt and also would have found against appellant on the [defensive] issue beyond a reasonable doubt.” Id. at 914 (citations omitted).

The issue of sudden passion, like the issue of self-defense, is an issue of fact to be determined by the fact finder, and the fact finder is free to accept or reject defensive evidence on the issue. Such a defensive theory, by its very nature, cannot be conclusively established “as a matter of law” in a criminal case. The en banc court’s holding to the contrary, i.e., that we employ the legal sufficiency standard of review “applied in civil cases” to review an accused’s challenge to the fact finder’s rejection of a defensive issue in a criminal case, is in error.

      . Appellant asserts only a federal constitutional claim.

      . Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694 (1966).

      . Even if the record had shown otherwise, the reading of Miranda rights is not required as a precondition for obtaining consent to search. See Rayford v. State, 125 S.W.3d 521, 528 (Tex.Crim.App.2003) ("Contrary to appellant's claims, we know of no authority that requires informing a suspect of his rights under Miranda before obtaining a consent to search, and appellant points to none.”).

      ."Although a police officer’s failure to inform the accused that he can refuse consent is a factor to consider,” its absence "does not automatically render the accused's consent involuntary.” Johnson v. State, 68 S.W.3d 644, 653 (Tex.Crim.App.2002).

      . Patterson relied only on Naasz v. State, 974 S.W.2d 418, 421 (Tex.App.-Dallas 1998, pet. ref'd), without additional analysis or explanation concerning why a legal sufficiency review was improper. Patterson v. State, 121 S.W.3d 22, 24 (Tex.App.-Houston [1st Dist.] 2003, pet. dism’d, untimely filed).

      . A majority of Texas intermediate courts of appeals conduct legal sufficiency reviews on issues that the defendant must prove by a preponderance of the evidence. See Howard v. State, 145 S.W.3d 327, 332 (Tex.App.-Fort Worth 2004, no pet.) (additional citing references omitted).

      . Meraz was also silent concerning whether both a factual sufficiency review and a legal sufficiency review could be conducted concerning a jury’s negative finding on an issue that the defendant had to prove. But Clewis, decided six years after Meraz, held that both reviews were proper concerning the elements of the offense that the State had to prove beyond a reasonable doubt. See Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App.1996).

      . A minority of courts apply the Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) legal sufficiency analysis to the jury's negative finding on an issue that the defendant had to prove. See Roybal v. State, 2003 WL 22241629, at *1-2 (sanity offense); Cooney v. State, 803 S.W.2d 422, 425 (Tex.App.-El Paso 1991, writ ref’d) (same); Torres v. State, 976 S.W.2d 345, 347 (Tex.App.-Corpus Christi 1998, no pet.) (same). Roybal relied on Arnold v. State, 873 S.W.2d 27, 30 (Tex.Crim.App.1993), as authority for applying the Jackson standard of review. However, Arnold and Roybal involved different burdens of proof. Because Arnold had previously been declared insane, the State had the burden to prove beyond a reasonable doubt that Arnold was sane at the time of the offense, and, thus, the Court of Criminal Appeals applied the Jackson v. Virginia legal-sufficiency standard. See Arnold, 873 S.W.2d at 30 (applying Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89). Roybal, by contrast, had to prove his affirmative defense of insanity by a preponderance of the evidence. Roybal, 2003 WL 22241629, at *1-2. We are not persuaded that Arnold is pertinent to the standard that applies in reviewing legal sufficiency challenges to a jury’s negative answer to an issue that the defendant had to prove by a preponderance of the evidence.

      . In contrast, an appellate court holding that factual insufficiency of the evidence to support the jury’s negative finding on the issue of sudden passion would result in a remand for a new punishment trial with possible sentences for either first-degree murder or second-degree sudden passion. Tex. Pen.Code Ann. §§ 19.02(b)(1); (b)(2); (d) (Vernon 2003).

      . We note that even undisputed and uncon-tradicted evidence is subject to a credibility analysis by the jury, which may reasonably disbelieve and reject it. See e.g. Dashield v. State, 110 S.W.3d 111, 115 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd) (holding that fact-finder may disbelieve uncontradicted expert testimony). The same is true under the preferred standard in civil cases. See W. Wendell Hall, Standards of Review in Texas, 34 St. Mary's LJ. 1, 165-66 (2002).

      . The concurring opinion's reliance on Saxton v. State, 804 S.W.2d 910, 913 (Tex.Crim.App.1991) is misplaced for two reasons. First, the holding in Saxton pertained to a legal sufficiency review on the issue of self-defense, on which the State has the burden of proof beyond a reasonable doubt, in contrast to the issue of sudden passion, which the defendant must prove by a preponderance of the evidence. Second, Saxton’s holding is inconsistent with the concurring opinion’s analysis here. Saxton holds as follows: "In resolving the sufficiency of the evidence issue, we look not to whether the State presented evidence which refuted appellant’s self-defense testimony, but rather we determine whether after viewing all the evidence in the light most favorable to the prosecution any rational trier of fact would have found the essential elements of murder beyond a reasonable doubt and would also have found against appellant on the self-defense issue beyond a reasonable doubt.... The court of appeals' failure to use this standard of review was error.” See id. at 914 (emphasis added). The Saxton court then conducted a sufficiency-of-the evidence analysis by stating facts that were inconsistent with Saxton's claim of self-defense. Id. Thus, although the concurring opinion correctly notes that Saxton states that, when the State has the burden of persuasion at trial, rather than the burden of proof, the State need not produce any evidence to rebut a defendant’s claim of self-defense, Sax-ton held, as we hold here, that a legal sufficiency review of the evidence must still be conducted on appeal. See id.

      . In contrast, when a defendant challenges the factual sufficiency of the rejection of a defense, we review all of the evidence in a neutral light and ask whether the State’s evidence, taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003).


author: ELSA ALCALA, Justice.

text:
    Sherry M. DUNN, Appellant, v. Hershey DUNN, Appellee.
    No. 01-03-00988-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 14, 2005.

      Faye Lawana Ann Rodman and Kimberly Phillips, Gardere Wynne Sewell LLP, Houston, TX, for Appellant.
    Ned Gill III, Gill, Revack & Samaan, Bellaire, TX, for Appellee.
    Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
   OPINION

ELSA ALCALA, Justice.

Appellant, Sherry M. Dunn, appeals from the trial court’s order terminating spousal maintenance from appellee, Hershey Dunn. In three issues, appellant contends that the trial court erred by terminating spousal maintenance because (1) the trial court’s findings of fact and conclusions of law are not supported by legal or factually sufficient evidence, (2) the evidence supported the continuation of spousal maintenance, and (3) the presentation of expert testimony, an inventory and financial information sheet are not statutory or evidentiary prerequisites to the continuance of spousal maintenance. We affirm.

Background

Sherry and Hershey were married, divorced, reconciled, and remarried on June 4, 1989. Their union produced three children who were adults when the couple divorced in 2002,12 years into their second marriage. The community property acquired during their second marriage was divided by agreement. The couple disputed, however, the issue of spousal maintenance under Chapter 8 of the Family Code, which Sherry had requested in her counter-petition for divorce.

At an evidentiary hearing before an associate judge concerning the issue of spousal maintenance, Sherry produced medical documents and testimonial evidence that she was disabled and unable to be employed, but Hershey disputed those assertions. The associate judge stated on the record that Sherry was entitled to spousal maintenance at the rate of $890 per month for a period of six months, but that “pursuant to section 8.054(b) of the Texas Family Code” the Court would review that maintenance order “to see if it needs to be modified in any way.” On February 26, 2002, the trial court entered a final decree of divorce that included the spousal maintenance under the terms described by the associate judge.

The trial court conducted three separate review hearings on September 26, 2002, February 28, 2003, and May 22, 2003, and extended the spousal-maintenance order at the conclusion of each hearing. At the May 22, 2003 review hearing, at which the trial court ordered that the spousal maintenance continue through the payment due September 1, 2003, however, the trial court stated, “The Court is directing that the payee provide expert testimony and [a] financial information statement and an inventory in connection with the September 4th [2003] hearing as a condition precedent to the Court considering any further continuation of the maintenance at that time.” The court also stated that it had made a docket entry stating that “expert testimony, FIS and inventory by payee to be submitted as prerequisite to continue maintenance.”

On September 4, 2003, Sherry’s attorney orally requested a continuance to subpoena Sherry’s medical doctors, and Hershey’s attorney objected to the continuance. The trial court inquired whether Sherry had a “Financial Information Statement and an Inventory” to submit to the court. Sherry’s attorney responded that she did not have the inventory to submit to the court for the hearing, although she “probably” had it in her office. The trial court denied the motion for continuance and conducted the hearing on whether to continue the court-ordered spousal maintenance. Sherry’s attorney represented to the court that “nothing has changed” with respect to Sherry’s financial and medical condition since the trial court had initially ordered the spousal maintenance. The court ordered the maintenance discontinued, finding that “the payee has not complied with the Court’s directives of May 22, 2003.” When Sherry’s attorney requested an explanation, the trial court responded, “It’s being terminated because the Court gave specific instructions about information the Court wanted presented today at this reset hearing, and that information is not available to the Court.”

The trial court’s September 4, 2003 order stated as follows:

Pursuant to the order included in the final decree of divorce, this cause came on for hearing to determine whether the maintenance order should be continued. The Court, having considered the pleadings, the prior orders and directions of the Court, and arguments of counsel is of the opinion that the maintenance order and any withholding order should be terminated and discontinued, effective September 30, 2003.

On September 28, 2003, the trial court entered findings of fact and conclusions of law.

Sherry filed a motion for new trial, and the trial court held a hearing. Sherry testified that after the trial court discontinued the spousal maintenance, she learned from a doctor that she would be needing another surgery to her neck and lower back. Sherry also presented evidence from Dr. Thomas Diaz, who described Sherry’s diagnosis as “chronic degenerative joint disease of the lumbar spine and cervical spine.” On November 11, 2003, the trial court denied Sherry’s motion for new trial and continuance.

Spousal Maintenance

In her second and third issues, Sherry contends that the evidence is legally and factually insufficient because the evidence supported the continuation of spousal maintenance, and the trial court’s findings of fact and conclusions of law are not supported by the evidence. We review these issues together.

We review the award of spousal maintenance under an abuse of discretion standard. Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.-Dallas 2001, pet. denied). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. See Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.1998); Pickens, 62 S.W.3d at 214. Under the abuse of discretion standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but they are relevant factors in assessing whether the trial court abused its discretion. Pickens, 62 S.W.3d at 214; see also Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex.App.-El Paso 1998, no pet.) (stating that appellate court may conduct sufficiency of evidence review to determine whether trial court had sufficient evidence before it upon which to exercise its discretion).

We apply the same standards when reviewing the legal and factual sufficiency of the evidence supporting the trial court’s fact findings as we do when reviewing the evidence supporting a jury’s answer to a special issue. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Because we have a complete reporter’s record before us, the trial court’s findings of fact are not conclusive as to our review. See Swanson v. Swanson, 148 Tex. 600, 228 S.W.2d 156, 158 (1950); Mohnke v. Greenwood, 915 S.W.2d 585, 589 (Tex.App.-Houston [14th Dist.] 1996, no writ).

When a party attacks the legal sufficiency of an adverse finding on an issue on which it has the burden of proof, the party must demonstrate on appeal “that the evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001). A matter-of-law challenge requires us first to examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If, but only if, no evidence supports the finding we will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. We will sustain the matter-of-law challenge only if the contrary proposition is conclusively established. Id. When reviewing the factual sufficiency of evidence, we examine all of the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.-Dallas 1999, no pet.).

In determining whether a spouse with an incapacitating physical or mental disability should continue to receive spousal maintenance, the Family Code provides as follows:

(b) If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues. The court may order periodic review of its order, on the request of either party or on its own motion, to determine whether the disability is continuing. The continuation of spousal maintenance under these circumstances is subject to a motion to modify as provided by Section 8.057.

Tex. Fam.Code Ann. § 8.054(b) (Vernon Supp.2004-2005) (emphasis added).

At the September 4, 2003 hearing, Sherry’s attorney represented to the trial court that “nothing” had changed with respect to Sherry’s financial and medical conditions, but did not present any evidence to the trial court concerning whether Sherry’s disability was continuing. See Potter v. GMP, L.L.C, 141 S.W.3d 698, 704 (Tex.App.-San Antonio 2004, pet. granted, abated; dism’d) (holding arguments of counsel are not evidence). The trial court’s findings of fact and conclusions of law thus correctly state that, “Respondent offered no evidence in support of continuance of the maintenance order in this case,” and, “The Court finds no evidence to support the continuance of the maintenance order in this case.” Because Sherry had the burden of proof at the hearing and did not produce any evidence, we hold that the trial court did not abuse its discretion by terminating Sherry’s spousal maintenance. We overrule Sherry’s second and third issues.

Prerequisites to the Continuation of Maintenance

In her first issue, Sherry contends that the trial court erred by terminating her spousal maintenance when she failed to present expert testimony, an inventory and financial information sheet as directed by the trial court. Appellant contends that the requirements imposed by the trial court, as shown in its findings of fact and conclusions of law, are not statutory or evidentiary prerequisites to the continuance of spousal maintenance under section 8.045(b) of the Family Code, and, therefore, that the trial court abused its discretion by terminating appellant’s spousal maintenance as a consequence of not producing the evidence required by the trial court.

Except for fundamental error, which Sherry does not claim, to preserve a complaint for appellate review, a party must present to the trial court a timely and specific request, objection, or motion. Tex. R.App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 349-350 (Tex.2003). The record demonstrates that, despite many opportunities to object to the trial court’s evidentiary requirements, Sherry did not object at any point. Additionally, Sherry did not object to the trial court’s findings of fact and conclusions of law.

We hold that by failing to object to the trial court’s evidentiary requirements and by failing to object to the trial court’s findings of fact and conclusions of law, Sherry has waived any error and presents nothing for our review in regard to her first issue. Tex.R.App. P. 33.1(a); In re B.L.D., 113 S.W.3d at 350; see also In re Kajima International, Inc., 139 S.W.3d 107, 110 (Tex.App.-Corpus Christi 2004, no pet.) (stating challenges to trial court’s legal conclusions are waived by not objecting to order or underlying findings and conclusions); Piro v. Sarofim, No. 01-00-00398-CV, 2002 WL 538741, at *5 (Tex.App.-Houston [1st Dist.] April 11, 2002, no pet.) (not designated for publication) (holding that no error preserved when lawyer does not show in record where he objected to trial court’s findings or conclusions); Regan v. Lee, 879 S.W.2d 133, 136 (Tex.App.-Houston [14th Dist.] 1994, no writ) (holding that “general rule” requiring preservation of error applies to challenges to conclusions of law from nonjury trials); Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 738-39 (Tex.App.-Corpus Christi 1992, writ denied) (same).

Conclusion

We affirm the judgment of the trial court.

      . An associate judge, the Honorable Ellen K. Shelton, presided at the trial on the merits. The Honorable Doug Warne, however, presided at the review hearings and signed the final decree of divorce, order terminating maintenance, and findings of fact and conclusions of law.

      . At trial, Sherry had the burden to prove by a preponderance of the evidence that her incapacitating physical disability was continuing so as to prevent her from supporting herself through appropriate employment. See Carlin v. Carlin, 92 S.W.3d 902, 905 (Tex.App.-Beaumont 2002, no pet.).

      . The complained of finding of fact states as follows:
      2. On May 22, 2003, and pursuant to the order included in the final decree of divorce, this cause came on for a hearing to determine whether the maintenance order should be continued. At that time, both parties appeared before the Court with counsel. The Court ordered maintenance to be continued through September 1, 2003; but ordered the case be reset for review on September 4, 2003, subject to the proviso that respondent would submit expert testimony, a financial information sheet, and an inventory as a prerequisite to continued maintenance.
      The complained of conclusion of law states as follows:
      (a) in spite of adequate notice of her burden to produce evidence in support of the continuation of the maintenance order and of this Court’s intent to discontinue the order in the absence of such evidence, respondent, Sherry Marie Dunn, failed to offer any evidence as to why the maintenance order included in the February 22, 2002, final decree of divorce should be continued[J

      . On May 22, 2003, the trial court stated on the record and made a docket notation that Sherry would have to provide expert testimony and certain financial information for the September hearing if she wished to receive continued spousal maintenance. Over three months later, at the September 4, 2003 hearing, the trial court inquired about whether Sherry had any of the expert or financial evidence that the trial court had requested earlier. On September 28, 2003, the trial court entered its findings of fact and conclusions of law. Forty-four days after entering its findings of fact and conclusions of law, the trial court held a hearing on November 11, 2003 on Sherry's motion for new trial, which motion did not assert that the trial court had incorrectly imposed evidentiary requirements not required under the statute. Over the course of five months’ time and three court hearings, therefore, Sherry never asserted that the trial court had erroneously required her to produce expert and financial evidence. Additionally, although the findings of fact and conclusions of law were filed 44 days before the motion for new trial hearing, Sherry did not assert any objections to the trial court’s findings of fact and conclusions of law.

      . But see Sammons v. Elder, 940 S.W.2d 276, 280 (Tex.App.-Waco 1997, writ denied) (holding that conclusions of law in nonjury trial are reviewable by court of appeals without preservation under Rules of Appellate Procedure), and W. Wendell Hall, Standards of Review in Texas, 34 St. Mary’s L.J. 1, 188-89, 188 n. 1159, n. 1160 (2002).