author: COCHRAN, J., WOMACK, J.,

text:
    Arthur Garcia SANCHEZ, Appellant, v. The STATE of Texas.
    No. PD-1230-04.
    Court of Criminal Appeals of Texas, En Banc.
    June 22, 2005.

      Stephanie L. Stevens, San Antonio, for Appellant.
    Enrico B. Valdez, Asst. District Atty., San Antonio, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

COCHRAN, J.,

delivered the opinion of the Court,

in which KELLER, P.J., PRICE, WOMACK, KEASLER and HOLCOMB, JJ„ joined.

We granted appellant’s sole question for review to decide “[w]hat is the appropriate test for harm when the State is allowed to improperly commit jurors to a set of facts?” We hold that the proper test for harm is that set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure, and that reviewing courts should use an appropriately tailored set of factors to determine whether the defendant’s substantial rights have been affected. Because the court of appeals did not expressly rely upon Rule 44.2(b) or have the benefit of a full set of factors when it determined that appellant was not harmed by the State’s purportedly improper commitment questions, we remand this case to that court for reconsideration.

I.

Appellant was charged with driving while intoxicated. During voir dire, the State, anticipating that the evidence at trial would show that appellant suffered physical disabilities from polio, asked the jury panel the following questions:

There may be some evidence in the case, you may hear some evidence about physical disability. And my question is: will anyone here who is sensitive or just thinks that their thinking process lends them to feel the need to be more protective of people with physical disabilities? Is there anyone here who thinks they may have a hard time reaching a verdict based on the fact that there may be evidence of a physical disability?

Appellant objected that the prosecutor was attempting to commit the veniremen, and the trial court overruled his objection. The prosecutor then continued:

Assuming that you have evidence beyond a reasonable doubt that a person’s lost the normal use of their physical faculties, if you’re selected as a juror— mental faculties — do you think you would have a bias in favor of or give more benefit to a person who was physically disabled? Do you think you would? Does anybody feel like they might do this or that they would do that? Anybody in the first row?

Appellant again objected and the trial court again overruled his objection. The only venireman who responded to this questioning was Ms. Nichols who said, “Not unless that there was an establishment that the disability had something to do with what led others to believe.” Ms. Nichols was juror number twenty; neither side used a peremptory strike against her because the six-member jury was complete before reaching her number.

The State’s evidence showed that a police officer stopped appellant, who was driving a green Volvo on Interstate 35 in San Antonio at 1:00 a.m., because he had a hard time staying in a single lane of traffic. The officer formed the opinion that appellant was intoxicated because of his alcohol breath, his bloodshot eyes, his slurred speech, his demeanor, and his inability to recite the alphabet correctly. According to the officer, appellant said that he is “a drunk.” The evidence showed that appellant had braces on his legs and used a cane for support as a result of polio. The officer did not ask appellant to perform any physical field sobriety tests because he noted appellant was disabled and “you need to be fair with each individual for his capability; if he has a handicap, naturally you can’t do [physical field sobriety tests].” Appellant did not present any evidence. Based on the State’s evidence, the jury convicted appellant of driving while intoxicated, and the trial judge assessed punishment at 120 days in jail probated for one year.

On appeal, appellant claimed, inter alia, that the trial court erred when it overruled appellant’s objections to the prosecutor’s alleged juror commitment questions. The court of appeals declined to address the question of whether the prosecutor’s questions were, in fact, improper commitment questions. Instead, it stated

Because [appellant] was not harmed by the trial court’s ruling, however, we need not address this issue. A defendant is harmed only if (1) he exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his request is denied, and (4) he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge. Here, the only veni-re member who responded to the prosecutor’s questions did not serve on the jury. Accordingly, [appellant] was not harmed by the trial court’s ruling.

The court of appeals affirmed the trial court’s judgment.

II.

There are three possible purposes for the voir dire examination of veniremen. The first purpose is to elicit information which would establish a basis for a challenge for cause because the venireman is legally disqualified from serving or is biased or prejudiced for or against one of the parties or some aspect of the relevant law. This function furthers the defendant’s constitutional right to (and society’s interest in) an “impartial” jury. The second purpose is said to facilitate the intelligent use of peremptory challenges which may be “exercised without a reason stated, without inquiry and without being subject to the court’s control.” This function may further both the defendant’s and prosecution’s statutory right to make peremptory challenges. And the third purpose — albeit not necessarily a legally legitimate one — is to indoctrinate the jurors on the party’s theory of the case and to establish rapport with the prospective jury members. This is of important practical interest to both the State and the defendant, but it has neither a constitutional nor a statutory basis. Voir dire for this purpose is entirely within the trial judge’s discretion, and he may permit or prohibit it as he deems appropriate.

The Texas Supreme Court has stated that the scope of a permissible voir dire examination is necessarily broad to enable litigants to discover any bias or prejudice so that they may make either challenges for cause or peremptory challenges. However, in criminal cases, questions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence, are not proper.

The defendant has a constitutional right to a trial “by an impartial jury.” Thus, the purpose for prohibiting improper commitment questions by either the State or the defendant is to ensure that the jury will listen to the evidence with an open mind — a mind that is impartial and without bias or prejudice — and render a verdict based upon that evidence. Commitment questions require a venireman to promise that he will base his verdict or course of action on some specific set of facts before he has heard any evidence, much less all of the evidence in its proper context. It is this prejudgment of the value and importance of certain evidence that is the evil to be avoided unless the law requires such a commitment.

As we explained in Standefer v. State, commitment questions are improper (a) when the law does not require the commitment, such that a juror would not be disqualified for cause by being influenced by a particular fact or by having a particular attitude or opinion, or (b) even if the question meets the challenge for cause requirement, if it also includes facts in addition to those necessary to establish a challenge for cause. An improper commitment question attempts to create a bias or prejudice in the venireman before he has heard the evidence, whereas a proper voir dire question attempts to discover a venireman’s preexisting bias or prejudice.

III.

In this case, the court of appeals never addressed whether the questions to which appellant objected were, in fact, improper commitment questions. Instead, it moved straight to the issue of harm. Appellant argues that the court of appeals erred in failing to use the harmless-error analysis set out in Rule 44.2(b) of the Texas Rules of Appellate Procedure. We agree. The court of appeals relied exclusively upon Anson v. State, which held that, when a trial court erroneously prohibits a defendant’s proper voir dire questioning or erroneously denies a defendant’s challenge for cause, reviewing courts should apply a four-prong test for harm. That test, as set out by the court of appeals, is that a defendant is harmed “only if (1) he exhausts all of his peremptory challenges, (2) he requests more challenges, (3) his request is denied, and (4) he identifies an objectionable person seated on the jury on whom he would have exercised a peremptory challenge.”

Although the Anson test may assist in deciding whether error in the State’s improper commitment questioning of an entire jury panel was harmless, it is not focused directly upon the evil to be avoided: a biased jury which has prejudged the law or facts. The problem with an Anson analysis in this context is that additional peremptory strikes would not necessarily cure Standefer error if improper commitment questions were addressed to the entire venire. For example, appellant argues that, in this case, “[t]he State committed the entire panel to follow bad law.” Were that shown to be true, then every juror who sat on the jury might, at least in theory, be biased against the defendant. Providing an extra peremptory strike clearly would not cure the problem. Further, argues appellant, “asking counsel to point out objectionable jurors is futile, because all of the jurors who agreed to the prosecutor’s improper commitment of the law were left on the panel to serve as potential jurors.” Thus, reliance solely upon the Anson test will not suffice when purportedly improper commitment questions are posed to the jury panel as a whole. Therefore, we must turn to the rule set out in Tex.R.App. P. 44.2(b).

Under Rule 44.2(b), reviewing courts should assess the potential harm of the State’s improper commitment questioning by focusing upon whether a biased juror — one who had explicitly or implicitly promised to prejudge some aspect of the case because of the State’s improper questioning — actually sat on the jury. The ultimate harm question is: was the defendant tried by an impartial jury, or, conversely, was the jury or any specific juror “poisoned” by the State’s improper commitment questions on a legal issue or fact that was important to the determination of the verdict or sentence?

There is no single, specific rule by which reviewing courts should assess this question of harm. But factors to consider in determining whether a trial court’s error in permitting the State to ask improper commitment questions to an entire jury panel over the defendant’s objection is harmful might include:

1) whether the questions were unambiguously improper and attempted to commit one or more veniremen to a specific verdict or course of action;
2) how many, if any, veniremen agreed to commit themselves to a specific verdict or course of action if the State produced certain evidence;
3) whether the veniremen who agreed to commit themselves actually served on the jury;
4) whether the defendant used peremptory challenges to eliminate any or all of those veniremen who had committed themselves;
5) whether the defendant exhausted all of his peremptory challenges upon those veniremen and requested additional peremptory challenges to compensate for their use on improperly committed veniremen;
6) whether the defendant timely asserted that a named objectionable venireman actually served on the jury because he had to waste strikes on the improperly committed jurors; and
7) whether there is a reasonable likelihood that the jury’s verdict or course of action in reaching a verdict or sentence was substantially affected by the State’s improper commitment questioning during voir dire.

This is not, of course, an exhaustive or exclusive list of factors that reviewing courts might consider. Depending upon the particular circumstances, a reviewing court might use additional or entirely different factors to assess the ultimate question of harm: was the defendant tried by a juror that had prejudged him or some aspect of his case because the State had improperly committed one or more veniremen to a verdict or course of action before hearing any evidence?

Because the court of appeals has not had the opportunity to conduct a harmless error analysis under the standard and factors we announce today, we vacate its judgment and remand this case to the court of appeals for further proceedings.

JOHNSON, J., concurred in the result.

WOMACK, J., filed a concurring opinion in which KELLER, P.J., joined.

MEYERS and HERVEY, JJ„ are not participating.

WOMACK, J.,

concurring, in which KELLER, P.J., joined.

I join the opinion of the Court with the understanding that the first two paragraphs in Part II of the opinion (ante, at 4, at-) do not say that voir dire examination is justified by the second and third of the three “possible purposes” that are mentioned. The author of the opinion has joined the view, which I have set out elsewhere, that the peremptory-challenge procedure does not justify a party’s questioning the jurors about matters other than their qualifications to serve. See Barajas v. State, 93 S.W.3d 36, 42 (Tex.Cr.App.2002) (concurring opinion). And I feel sure that no member of the Court thinks that “indoctrinat[ing] the jurors” is a legitimate purpose.

      . Tex.R.App. P. 44.2(b) (any nonconstitutional “error, defect, irregularity, or variance that does not affect substantial rights must be disregarded”).

      . Sanchez v. State, 04-02-00624-CR, 2004 WL 946704, 2004 Tex.App. LEXIS 4001 (Tex.App.-San Antonio 2004).

      . Sanchez, slip op. at 3, 2004 WL 946704 at *1, 2004 Tex.App. LEXIS 4001 at *2-3 (citation omitted).

      . Tex.Code Crim. Proc. art. 35.16; see Sadler v. State, 977 S.W.2d 140, 142 & n. 3 (Tex.Crim.App.1998) (noting that both defendant and State may challenge for cause any juror who has a bias or prejudice against the law that either party is entitled to rely upon; stating that ''[bjias against the law is refusal to consider or apply the relevant law. It exists when a venireperson’s beliefs or opinions 'would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath’ ”); Smith v. State, 907 S.W.2d 522, 529 (Tex.Crim.App.1995) (a prospective juror with bias or prejudice against the parties in the case must be excused for cause).

      . See Morgan v. Illinois, 504 U.S. 719, 727, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (stating that " ‘the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, "indifferent” jurors’ ” and that "if a jury is to be provided the defendant, regardless of whether the Sixth Amendment requires it, the jury must stand impartial and indifferent to the extent commanded by the Sixth Amendment”) (citing Turner v. Louisiana, 379 U.S. 466, 471-72, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) and quoting Irvin v. Dowd, 366 U.S. 717, 721-22, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)).

      . Swain v. Alabama, 380 U.S. 202, 220, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (noting that "[wjhile challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable. It is often exercised upon the 'sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another,’ upon a juror’s 'habits and associations,’ or upon the feeling that 'the bare questioning [a juror’s] indifference may sometimes provoke a resentment,’ ") (citations omitted).

      . Tex.Code Crim. Proc. art. 35.14; see Cannady v. State, 11 S.W.3d 205, 210 (Tex.Crim.App.2000) ("asking questions on voir dire helps a party to intelligently exercise his peremptory challenges. Likewise, not being allowed to ask proper questions hampers that exercise”); Barnes v. State, 876 S.W.2d 316, 325 (Tex.Crim.App.1994) ("Article 35.14 provides a vehicle with which to exclude potential jurors that an advocate believes are prejudiced against his cause.... Subject to the constraints of Article 35.261, we have held that party need not assign a reason for exercising his peremptory strikes”).

      . See, e.g., 5 William Dorsaneo, Texas Litigation Guide § 120.02[1] (2005). Professor Dorsa-neo notes:
      Counsel should not underestimate the importance of appearance and conduct during the voir dire, and must endeavor to create a favorable first impression. The task at hand is more than the mere gleaning of information helpful to counsel in exercising challenges against unwanted jurors. Added purposes of voir dire include setting the jurors at ease, creating a degree of rapport with them, and stating the general nature of the case, all in such a way that the jurors will be on counsel's side from the beginning.

        Id.

      . See, e.g., Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 709 (Tex.1989)("A broad latitude should be allowed to a litigant during voir dire examination. This will enable the litigant to discover any bias or prejudice by the potential jurors so that peremptory challenges may be intelligently exercised”).

      . Atkins v. State, 951 S.W.2d 787, 789 (Tex.Crim.App.1997); Allridge v. State, 850 S.W.2d 471, 480 (Tex.Crim.App.1991) ("an attorney cannot attempt to bind or commit a prospective juror to a verdict based on a hypothetical set of facts”).

      . U.S. Const. Amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury of the State and district wherein the crime shall have been committed”); Tex. Const, art. 1, § 10 ("In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury"). It has long been the policy of American law
      to afford each and eveiy person who may have a cause for trial in our courts, a fair and impartial trial. This can only be done by having the mind of each juror who sits to pass judgment upon the life, liberty or rights of a suitor entirely free from bias or prejudice. In order to determine whether the person who may be called as a juror possesses the necessary qualifications, whether he has prejudged the case, whether his mind is free from prejudice or bias, the suitor has the right to ask him questions, the answer to which may tend to show he may be challenged for cause, or disclose a state of facts from which the suitor may see proper to reject such juror peremptorily.

        Lavin v. People, 69 Ill. 303, 304-05 (1873).

      . 59 S.W.3d 177 (Tex.Crim.App.2001).

      . Standefer, 59 S.W.3d at 181 (“for a commitment question to be proper, one of the possible answers to that question must give rise to a challenge for cause”).

      . Id. at 182.

      . The State argues that the question of what harm standard should be applied in this case is irrelevant because the questions asked by the prosecution were not improper commitment questions. It notes that questions of error in the voir dire context should be addressed before harm and cites Tong v. State, 25 S.W.3d 707, 718 (Tex.Crim.App.2000). Be that as it may, the only question before us at this time is "what is the appropriate test for harm when the State is allowed to improperly commit jurors to a set of facts?”

      . See Rich v. State, 160 S.W.3d 575, 577 (Tex.Crim.App.2005) (stating that Rule 44.2(b), not Anson test, is applicable when voir dire is conducted in a group setting and defendant is prohibited from asking a proper question of the panel); see also Thompson v. State, 95 S.W.3d 537, 542 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (Applying rule 44.2(b) in deciding that error in permitting State to pose improper hypothetical to jury panel during voir dire was harmless).

      . 959 S.W.2d 203 (Tex.Crim.App.1997).

      . Sanchez, slip op. at 2; 2004 WL 946704 at *1, 2004 Tex.App. LEXIS 4001 at *2-3.

      . In some instances, it is difficult for appellate courts, much less trial judges, attorneys, or veniremen to determine whether a specific question is or is not an improper commitment question. If the question is phrased ambiguously and could be interpreted either way, the trial judge does not abuse his discretion in either permitting or prohibiting the specific question.

      . Just as the mere asking of an improper question at trial is rarely reversible error, see Brown v. State, 692 S.W.2d 497, 501 (Tex.Crim.App.1985), the mere asking of an improper commitment question during jury selection is rarely reversible error.

      . These Anson factors are relevant in assessing whether the defendant thought any veniremen had actually been improperly committed in a manner that prejudiced him, took appropriate measures to eliminate those biased veniremen from the jury, but was unable to strike all of them because he was denied sufficient peremptory strikes to do so.

      .This is the same harmless error test set out in Rich, 160 S.W.3d at 577. There we stated that
      the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury's consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case, the jury instructions, the State's theory and any defensive theories, closing arguments, voir dire, and whether the State emphasized the error. We believe these same general factors are relevant considerations in determining the harm from being denied a proper question to the venire.

        Id.


source: Caselaw Access Project

author: Justice WRIGHT.

license: Public Domain

text:
    Pat PILLITTERI, et al., Appellants, v. William V. BROWN, Appellee.
    No. 05-02-01486-CV.
    Court of Appeals of Texas, Dallas.
    April 20, 2004.
    Rehearing Overruled June 30, 2005.

      Ernest E. Figari, Jr., Figari, Davenport & Graves, L.L.P., Christopher M. Weil, Weil & Petrocchi, P.C., Jeffrey Wallace Hellberg, Jr., Dallas, for appellants.
    C. Thomas Wesner, Jr., Wesner, Coke & Clymer, P.C., for appellee.
    Before Justices MORRIS, WRIGHT, and MOSELEY.
   OPINION ON REHEARING

Opinion by

Justice WRIGHT.

Before us are three motions for rehearing filed by: (1) appellants David Green, Statestar Building Corp., and Davmol Developments, Inc.; (2) appellants Pat Pillit-teri, Patean Texas, Inc., and Patean Nevada, Inc.; and (3) appellants Statepark Colleyville, Ltd., Statepark Building Group, Ltd., and Portobello, Ltd. Among the points of error raised in their rehearing motions, is the contention that the Court erred in holding that the points of error concerning the turnover order were moot. We grant appellants’ motions for rehearing to the extent that they complain about the turnover order and we now address those points of error. We withdraw the opinion and judgment of July 31, 2003. The following is now the opinion of the Court.

Pat Pillitteri, Patean Texas, Inc., Patean Nevada, Inc., David Green, Statestar Building Corporation, Davmol Developments, Inc., Statepark Colleyville, Ltd., Statepark Building Group, Ltd., and Por-tobello, Ltd. appeal a final judgment confirming an arbitration award and a turnover order. Appellants initially contend this Court lacks jurisdiction over this appeal because the trial court’s judgment is interlocutory. Appellants also assert the trial court erred in confirming the arbitration award and in entering the turnover order. We affirm.

Background

Brown entered into two management agreements with appellants. He agreed to manage the Spring Garden townhouse project and the Portobello Phase I townhouse project. Green and Pillitteri manage the business entities behind these two projects. Additionally, Brown did work for Green and Pillitteri on the 1/4 Acre Tract and the Optioned Land, both owned by Portobello. Brown believed that he had an agreement for an interest in these two properties and the right to development fees or a portion of the sales proceeds. The Optioned Land was subsequently transferred to an entity owned by Pillit-teri, Green, and Building Group. The 1/4 Acre Tract was sold for $1,000,000. Brown did not receive any interest in the property or any of the sale proceeds.

Brown filed suit alleging causes of action for declaratory judgment and various contract and tort claims. Over Brown’s objection, the trial court ordered the dispute to arbitration pursuant to arbitration clauses contained in the management agreements. The arbitrator awarded damages to Brown and the trial court confirmed the award. This appeal timely followed.

Jurisdiction

In their first two points of error, appellants assert jurisdictional errors. Specifically, in points of error one and two, appellants contend the award of $50,000 attorney’s fees incurred to enforce and reduce the arbitrator’s award to judgment and another $50,000 for post-judgment collection efforts renders the judgment conditional and, thus, interlocutory. We disagree. A judgment is final despite the reservation of jurisdiction to consider a claim for additional attorney’s fees incurred in execution and collection of the judgment. See Medical Adm’rs, Inc. v. Koger Properties, Inc., 668 S.W.2d 719, 722 (Tex.App.-Houston [1st Dist.] 1983, no writ). We overrule appellants’ first and second points of error.

Arbitration Award

In points of error three, four, and five, appellants complain the trial court erred in confirming the arbitration award.

A trial court shall confirm an arbitrator’s award unless, on application of a party, grounds are offered for vacating the award. Tex. Civ. PRAC. & Rem.Code ANN. § 171.087 (Vernon Supp.2004); CVN Group, Inc. v. Delgado, 95 S.W.3d 234, 245 (Tex.2002). A party cannot appeal from or attack a judgment to which he has consented or agreed absent an allegation and proof of fraud. Litton Indus. Products, Inc. v. Gammage, 668 S.W.2d 319, 321-22 (Tex.1984); Gillum v. Republic Health Corp., 778 S.W.2d 558, 562 (Tex.App.-Dallas 1989, no writ). A party’s consent to a trial court’s entry of judgment waives any error, except for jurisdictional error, contained in the judgment, and that party has nothing to present for appellate review. Gillum, 778 S.W.2d at 562. If a party is displeased with a verdict, but nevertheless moves for judgment thereon, such motion is considered an acquiescence in the verdict which will preclude a subsequent attack on appeal. Gammage, 668 S.W.2d at 321-22; Texas Commerce Bank Reagan v. Lebco Constructors, Inc., 865 S.W.2d 68, 80 (Tex.App.-Corpus Christi 1993, writ denied).

On May 16, 2002, the arbitrator issued her award. After entry of her award, appellants repeatedly sought confirmation of the award. On June 19, 2002, appellants filed their motion to confirm the arbitrator’s award. In their motion, they stated:

Defendants strongly disagree with the Arbitrator’s decision. Defendants maintain that the Arbitrator made incorrect findings of fact and reached erroneous conclusions of law in issuing her decision. However, given the limited grounds for setting aside arbitration awards under both the state and federal arbitration acts, Defendants have decided to accept the Arbitrator’s Award, pay it, and seek final judgment from this Court that fully and finally resolves all claims and issues among the parties in this litigation. While they are extremely dissatisfied with the Award and believe the Arbitrator’s findings and conclusions were erroneous, Defendants wish to bring a finality to this litigation and have the parties’ claims and counterclaims fully and finally resolved,

(emphasis added).

At the hearing on appellants’ motion to dissolve the order requiring a security bond, attorney for appellants stated, “[W]e do not at this time object to the confirmation of the award.” Brown’s attorney stipulated at the hearing that “for purposes of entry of the judgment ... that all claims filed in this court were submitted to the arbitrator for decision and the arbitrator’s [sic] ruled on it and [we] withdraw all objection to the submission to the arbitration.” The appellants responded affirmatively when the trial court asked whether they accepted that stipulation and whether they wanted it to be enforced as an order of the court.

At a later hearing, the following occurred between the trial court and counsel:

[Mr. Wesner]: The judgment’s enforceable for a number of reasons. First of all, as Your Honor will recall, we had a motion before the Court for entry of judgment, and Mr. Cronenwett in open court stood up and stipulated that the judgment should be entered.
Secondly, under AAA Rule 50(c), when the parties agreed under Paragraph 5.8 of the arbitration — of the management agreements for an arbitration of issues arising therefrom, they agreed to the commercial dispute resolution procedures and rules of the AAA.
And Rule 50(c) says parties to arbitration under these rules shall be deemed to have consented that a judgment upon the arbitration award may be entered in any federal or state court having jurisdiction thereof.
Moreover, the arbitration award is a final award under the Texas — under the Texas law because the Paragraph 5.8 of the management agreements contain no provision for appeal.
[The Court]: It is my recollection that it was defendants’ request that the judgment be entered.
[Mr. Cronenwett]: It was, Your Hon- or. And there was a discussion in open court about whether the award would be reduced to a judgment, and we stipulated that the award could be reduced to a judgment.
[The Court]: And requested that the Court do that.
[Mr. Cronenwett]: Yes.
[Mr. Weil]: Your Honor, the first day I walked in this court, I think I assured the Court we were going to file a motion for new trial. I can only look at the record. The record is you entered a judgment. I do not see agreement to that judgment anywhere. There is no agreement, no — as to form or as to substance.
[The Court]: It seems to me that was on the record. Does anyone recall?
[Mr. Wesner]: Yes, it was, Your Honor. We had a stipulation on the record. It was announced in open court. And you will recall what his concern was is that Mr. Brown had interposed certain jurisdictional aspects to which Mr. Brown agreed to waive those, and the Court has recited his waiver. And that was part of the stipulation Rule 11 announced in open court, and that is binding on the parties.
[Mr. Weil]: I am familiar with Rule 11 and its nature, and the burden is not on me to dig in the record to find it. But I think if Mr. Wesner believes that that would preclude a motion for new trial, that we have to start there.
Secondly, I don’t believe that precludes a motion for new trial. Leading the Court into error may, however, and if the Court believes that counsel led the Court to believe that that judgment would never be contested, I have got to see that in the record to — to rely upon it.
[The Court]: The docket entry does indicate on June 18th that the parties stipulated to the final judgment.
[Mr. Weil]: Stipulated that it was to be final or stipulated to the final judgment entered?
[The Court]: I think we would have to review the record. I understood that there was an agreement as to the contents of the judgment.
[Mr. Wesner]: You will recall that the Court had a telephone conference concerning the form of the judgment, and the Court will recall that Mr. Cronen-wett requested that the last sentence above the date be entered, that this is a final judgment which disposes of all parties and claims brought in this litigation and/or the arbitration.
Also, Mr. Cronenwett’s comment was, is that the order should be drafted in the form that it’s drafted with a reference back to Paragraph 91 which the Court did. Paragraph 91 is attached to the judgment as Exhibit A and Exhibit B as part of the award, and that document itself specifies who is to pqy those amounts. The Court indicated at that time it was confirming the arbitrator’s decision in respect to Paragraph 91 in confirmation of the award.
We now have before this Court language specifically requested. So what they are suggesting to this Court is that the defendants themselves have invited error, and to the extent defendants themselves invited error, we know what the result of that is. So we are here on a stipulated judgment in precisely the form that Mr. Cronen — Cronenwett—
[Mr. Cronenwett]: Cronenwett.
[Mr. Wesner]:-Cronenwett requested the Court assign and enter. The Court will remember how I requested certain things, and the Court followed Mr. Cro-nenwett’s specific comments. And the Court received correspondence, letters, and then telephone conference in that regard.

Although appellants repeatedly expressed that they were not happy with the arbitrator’s award, appellants nevertheless requested the trial court to enter judgment confirming the award, stating “Defendants wish to bring a finality to this litigation and have the parties’ claims and counterclaims fully and finally resolved.” Having acquiesced in the trial court’s judgment, appellants have waived their right to complain on appeal. See Gammage, 668 S.W.2d at 321-22; Gillum, 778 S.W.2d at 562. Both sides moved the trial court to confirm the arbitrator’s award. The trial court properly confirmed the award and entered judgment. See Tex. Civ. PRAC. & Rem.Code Ann. § 171.087 (Vernon Supp. 2004). We have concluded the trial court’s judgment was final. Appellants do not allege that the judgment was procured by fraud. Accordingly, having requested and consented to the entry of the judgment, appellants have waived their right to complain about it.

Assuming there was no waiver, however, we cannot conclude that appellants would prevail. In points of error three and four, appellants complain about the award of $56,343.50 to the American Arbitration Association. If the parties’ arbitration agreement fails to provide for payment of the arbitrator’s fees and expenses, they shall be paid as provided in the arbitrator’s award. Tex. Civ. PRAC. & Rem.Code AnN. § 171.055 (Vernon Supp. 2004). “The fact that the relief granted by the arbitrators could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award.” Tex. Civ. Prao. & Rem.Code AnN. § 171.090 (Vernon Supp.2004). The arbitrator awarded the American Arbitration Association and the arbitrator their administrative fees and expenses totaling $56,343.50. Pursuant to the award, Green, Pillitteri, StatePark Building Group Ltd., Statestar Building Corp., Patean Nevada, Inc., Prevale Development, Inc., and Dav-mol Development, Inc. were jointly and severally liable for this amount. On appeal, appellants assert that the trial court erred in making the award to the AAA because it is a non-party. Although the trial court could not have granted this relief, it did not err in confirming this award of the arbitrator. See Tex. Civ. Prac. & Rem.Code Ann. § 171.090 (Vernon Supp.2004). We overrule appellants’ third and fourth points of error.

In point of error five, appellants complain about the judgment’s provision for post-judgment interest on the award. Arbitration awards earn post-judgment interest in the same manner as other judgments. See Kermacy v. First Unitarian Church of Austin, 361 S.W.2d 734, 735 (Tex.Civ.App.-Austin 1962, writ ref'd n.r.e.). We overrule appellant’s fifth point of error.

Turnover Order

In four points of error, appellants assert the trial court erred in entering the turnover order. Appellants assert the turnover order was error because it is not based on a final judgment, the trial court allowed Brown to amend his turnover application on the morning of trial, the trial court erred in disregarding one of the jury’s answers, and Brown failed to show appellants possessed or controlled the assets.

We review a trial court’s turnover order for an abuse of discretion. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991). We may reverse the trial court for abusing its discretion only when we find the court acted in an unreasonable or arbitrary manner. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).

The purpose of the turnover statute is to assist a judgment creditor in reaching certain property of a judgment debtor to obtain satisfaction on a judgment. See Commerce Sav. Ass’n v. Welch, 783 S.W.2d 668, 671 (Tex.App.-San Antonio 1989, no writ). Property may be subject to turnover if it: (1) is owned by the judgment debtor; (2) cannot be readily attached or levied on by ordinary legal process; and (3) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities. See Tex. Civ. Prac. & Rem.Code Ann. § 31.002(a)(1) & (2) (Vernon Supp.2004).

In their second point of error on the turnover order, appellants assert the trial court erred in allowing Brown to supplement his turnover application on the morning of trial. Green’s deposition was taken on July 23, 2002. At his deposition, Brown learned that Green owned 100% of the stock in GreenJack Holdings, Ltd. The following day, Brown filed his supplemental application adding GreenJack Holdings, Ltd. to the list of properties for which he sought turnover. Appellants moved to strike Brown's supplemental application. The trial court denied the motion.

Pleadings offered for filing within seven days of trial may not be filed except with leave of court. Tex.R. Civ. P. 63. Pleadings consists of a petition and an answer that sets forth a cause of action or defense. See Tex.R. Crv. P. 45(a) & (b). A pleading is distinguishable from an application requesting relief in an ancillary proceeding. See Gutierrez v. Cayman Islands Firm of Deloitte & Touche, 100 S.W.3d 261, 267 (Tex.App.-San Antonio 2002, no pet.); In re L.A.M. & Assoc., 975 S.W.2d 80, 84 (Tex.App.-San Antonio 1998, orig. proceeding). Unlike a pleading, an application for ancillary relief does not allege a cause of action or defense. In re L.A.M. & Assoc., 975 S.W.2d at 84.

Through his turnover application, Brown sought to enforce an existing judgment. He did not allege a cause of action. For these reasons, the requirement in rule 63 that a party obtain leave of court before filing a pleading within seven days of trial does not apply. We overrule appellants’ second point of error regarding the turnover order.

In their third turnover order point of error, appellants assert the trial court erred in denying the jury’s answer to question four. The following four questions were submitted to the jury:

1. Do you find by a preponderance of the evidence that David Green owns 100% of the stock of Green Jack Holdings, Ltd.?
Answer—Yes
2. Do you find from a preponderance of the evidence that Davmol Developments, Inc. owns the Florida condominium at 2515 Southeast 20th Place?
Answer—Yes
3. Do you find from a preponderance of the evidence that Pat Pillitteri owns any of the following stock or interest?
a. in Patron Contracting, Ltd. Answer-Yes
b. in Patean Nevada, Inc. Answer-Yes
c. in Patean Texas, Inc. Answer - Yes
d. in Fletchers Nevada, Inc. Answer - Yes
e. in 10 Bradwick, Inc. Answer - Yes
f. in Birchland Homes, Inc. Answer - Yes
4. For each item of property, if any, as to which you answered “yes” in response to questions nos. 1, 2, or 3, do you find that the item of property cannot be readily attached or levied on by ordinary legal process by William V. Brown?
Answer—[No as to all]

The parties conceded at trial that appellants were Canadian nationals and Canadian residents. The ordinary legal process by which property is attached or' levied upon is a writ. A writ must be addressed to a sheriff or constable in the State of Texas, and directs the official to attach and hold the defendant’s property as shall be found within his county. See Tex.R. Civ. P. 593. Accordingly, appellants’ property located in Canada and Florida cannot be attached or levied upon by ordinary legal process. The trial court did not err in disregarding the jury’s answer to question four. We overrule appellants’ third point of error regarding the turnover order.

In their final turnover order point of error, appellants assert turnover relief was improper because Brown failed to show that appellants possessed or controlled the subject properties. According to appellants, showing ownership of the property is not enough. We disagree.

Once a judgment creditor traces the assets to the judgment debtor, a presumption arises that those assets are in the debtor’s possession and the burden then shifts to the debtor to account for those assets. Beaumont Bank, 806 S.W.2d at 226. Similarly, if a judgment debtor claims that an asset is exempt, it is

the debtor’s burden to prove the exemption. Burns v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 324 (Tex.App.-Dallas 1997, pet. denied); Dale v. Finance America Corp., 929 S.W.2d 495, 498-99 (Tex.App.-Fort Worth 1996, writ denied).

Brown put forth evidence and the jury found that appellants owned the subject properties. Once Brown presented evidence that appellants owned the properties, a presumption arose that the assets were in appellants’ possession. See Beaumont Bank, 806 S.W.2d at 226. The burden then shifted to appellants to account for the assets. Id. Appellants offered no evidence at trial and, therefore, did not rebut the presumption that the properties were in their possession. We overrule appellants’ fourth point of error regarding the turnover order.

We affirm both the trial court’s judgment and turnover order.

      . Because of our holding that appellants consented to the judgment confirming the arbitration award, we do not address points of error six and seven complaining about the denial of their motion for new trial.

      . Having concluded that the trial court’s judgment is final, we do not address appellants' point of error asserting the turnover order was error because it was not based on a final judgment.


author: CATHERINE STONE, Justice.

text:
    Ronald A. EBY, Appellant, v. The STATE of Texas, Appellee.
    No. 04-04-00080-CR.
    Court of Appeals of Texas, San Antonio.
    April 6, 2005.
    Rehearing Overruled May 10, 2005.
    Discretionary Review Refused August 31, 2005.

      Steven C. Hilbig, Julie B. Pollock, Hitch-ings & Pollock, San Antonio, for appellant.
    Mary Beth Welsh, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Ronald Eby appeals his conviction and life sentence for murdering Roland Cerv-era. Because there is factually insufficient evidence to support Eby’s conviction, we reverse the trial court’s judgment and remand the cause for a new trial.

Background

In April of 1998, Roland Cervera was in the process of purchasing a piece of property in rural southeast Bexar County, Texas. Before the sale of the property was complete, Cervera, with the approval of his realtor, Constance Friesenhahn, began renovating the property. On April 8, 1998, Friesenhahn drove by Cervera’s property and noticed Cervera’s truck parked near the residence. When Friesenhahn drove by the property again on April 10, 1998, she noticed Cervera’s truck had not moved since the last time she drove by the property.

Friesenhahn contacted an adjacent landowner, Bart Moczygemba, to have him check on Cervera. Moczygemba drove to Cervera’s property on April 11, 1998. Moczygemba noticed Cervera’s truck parked in front of the garage and observed a dog chained to Cervera’s truck. Moczy-gemba, unable to enter the garage due to the dog, peered into the open garage door and saw an interior door ajar. After calling out for Cervera and receiving no response, Moczygemba left the property.

When Friesenhahn drove by Cervera’s property on April 12, 1998, she again noticed that Cervera’s truck had not moved. Finally, on April 13, 1998, Friesenhahn contacted the Bexar County Constable’s Office to check on Cervera. Later that same day, at around 6:00 p.m., Constable Reynaldo Guttierrez met Friesenhahn at Cervera’s property.

Upon arriving at the property, Constable Guttierrez smelled a foul odor coming from Cervera’s residence and saw flies on an inside window. Guttierrez immediately called for assistance. When his back-up arrived, Guttierrez entered the residence through the open door in the garage. As he did, he observed Cervera’s body lying on the ground. Pursuant to standard operating procedure, Guttierrez notified the Bexar County Sheriffs Office to report Cervera’s death.

Adrian Ramirez, an Evidence Technician from the Bexar County Sheriffs Office, was dispatched to the crime scene. When Ramirez entered the room where Cerv-era’s body was located, he observed blood splatter and blood' smears on the walls, ceiling, curtains, and windows. He also saw Cervera’s decomposing body lying on the ground near a wood stove. According to Ramirez, there were bloody footprints throughout the residence.

Authorities conducted a search of Cerv-era’s property and person. The search of Cervera’s person revealed a wallet containing his identification and one dollar. The only items collected from inside Cervera’s residence were an unopened package of Swisher Sweet cigars, a baseball cap, four unopened cans of Lone Star beer, blood samples, and kitchen tiles with bloody footprints on them. Authorities also processed Cervera’s vehicle and recovered the following items: a bottle of Old Milwaukee beer; several empty Lone Star beer cans; and two Church’s Chicken boxes containing plastic utensils. The search of Cerv-era’s property revealed a set of keys lying near the front gate of the property. Authorities were unable to locate the murder weapon.

An autopsy of Cervera’s body revealed that Cervera died of blunt force trauma to the head. Medical Examiners determined Cervera died anywhere from 48 hours to a week before his body was found. DNA testing performed on genetic material collected from Cervera’s finger nails did not produce any evidence for the authorities.

Kenneth Steward was the officer assigned to lead Cervera’s murder investigation. Based on Steward’s initial observation of the crime scene, he believed one assailant committed the crime and that the crime was not motivated by burglary or robbery. Steward interviewed various residents of the mobile home park where Cervera resided before his death, including Paul Wolds, Marion Hardin, Mary Hardin, and Bichard Houghtling. From these interviews, Steward learned that Mary Hardin saw Cervera alive on April 8, 1998 in the presence of Cervera’s acquaintance, Alvin Lindblom. According to Hardin, she saw Cervera and Alvin at Cervera’s mobile home loading a lawnmower onto a truck. Steward also learned that many of the witnesses were afraid Alvin would retaliate against them for talking to the officer. Based on the information he received from the witnesses, Steward developed Alvin as a murder suspect.

When Steward interviewed Alvin regarding the murder, Alvin denied ever having been to Cervera’s property. Alvin told Steward that he had last seen Cervera alive about a week before Cervera’s body was discovered. Following his interview with Alvin, Steward proceeded to interview Eby and his wife, Debra Gallego.

Debra informed Steward that she was previously married to Cervera and had one child with him, Timmy. She stated that she was now married to Eby. Debra informed Steward that she had helped Cerv-era work at his new property all day on April 5 and April 6, 1998. She told Steward that Eby knew she was helping Cerv-era at the property on those days. Debra also told Steward that Cervera had caught five youths trespassing on his property a couple of weeks before his death, and that the youths had threatened him.

Steward interviewed Eby on April 26, 1998. Eby provided Steward with a written statement denying any knowledge of Cervera’s murder. Eby stated that the last time he saw Cervera was in the latter part of 1997, when Cervera came by his residence for Timmy. When questioned regarding his whereabouts from April 5 to April 13, 1998, Eby stated: on April 5, he was with his children until 6:00 p.m., at which time he dropped them off at his grandmother’s house. He returned home at 7:30 p.m., where he stayed until the next morning; on April 6, he left for work at 7:45 a.m. and arrived home at 5:10 p.m., where he stayed until the next morning; on April 7th, he left for work at 7:45 a.m. and arrived home at 1:00 p.m. because he felt ill. He remained at home until the next morning; on April 8, he left for work at 7:45 a.m. and arrived home at 5:10 p.m., where he stayed until the next morning; on April 9, 1998, he left for work at 7:45 a.m. and arrived home at 5:45 p.m., where he stayed until the next morning; on April 10, he was at home all day with his wife and son cleaning their house until 8:00 p.m., at which time they left for Canyon Lake. He stayed with his family at Canyon Lake until April 12.

Steward obtained Eby’s work records from Eby’s employer, San Antonio Water System. From these records, Steward learned Eby was a field conservation technician. As a field conservation technician, Eby had his own work vehicle and worked-unsupervised throughout the day. Steward’s search of Eby’s work vehicle, however, did not produce any evidence concerning Cervera’s murder.

Steward also spoke with the shoe distributor that provides SAWS employees with their footwear. The distributor informed Steward that it sold work boots with tread patterns similar to the imprints found at the crime scene. However, none of the work boots the distributor provided to Eby had such treads. Based on Steward’s investigation, both Eby and Alvin were considered potential suspects.

Dalton Baker eventually took over Cerv-era’s murder investigation sometime during 1999. Baker, who was at the crime scene the day Cervera’s body was discovered, believed Cervera had been beaten to death by someone using a baseball bat. He began his investigation by reviewing the file prepared by Steward. He also interviewed Alvin Lindblom, Richard Houghtling, Connie Almand, Roland Al-mand, Mike Neely, John Hardin, Steven Hardin, Billy Bain, Ramiro Cervera, Ronald Lindblom, and Paul Wold. From his interviews, Baker developed Alvin Lind-blom as a suspect because Alvin had described the crime scene and Cervera’s death in detail to several of the witnesses. Baker’s investigation eventually led to Alvin’s arrest on May 5, 1999. Alvin was later indicted for Cervera’s murder. The case, however, was dismissed on September 6, 2000 for further investigation.

By June of 2002, Jeffrey Robertson of the Texas Rangers had taken over Cerv-era’s murder investigation. When he took over, Robertson reviewed all of the offense reports, witness statements, and crime scene photographs/diagrams. In examining all of the evidence, Robertson concluded one person committed the murder by striking Cervera multiple times in the head with a blunt object.

Robertson stated that he interviewed Mike Neely, Paul Wold, Richard Hough-tling, Ronald Lindblom, Eby, and Debra. None of the witnesses provided Robertson with any new information except for Debra, who stated she remembered eating Church’s Chicken with Cervera at Cerv-era’s property sometime before his death. Robertson did not re-interview Alvin, Steve Hardin, John Hardin, Mary Hardin, Connie Almand, or Roland Almand.

In November of 2002, the genetic material collected from Cervera’s fingernails was subjected to advanced DNA testing procedures. It is unclear whether this DNA evidence was actually collected from underneath Cervera’s fingernails. The DNA testing procedures revealed that Eby’s DNA matched DNA found on the fingernails. Based on this DNA evidence, Robertson concluded Eby was the perpetrator of the offense. The newly discovered DNA evidence led to Eby’s arrest and indictment for murder.

During Eby’s trial, multiple witnesses testified for both the State and the defense. Texas Ranger Robertson testified that he considered all of the offense reports, witnesses statements, and other evidence in the case before arresting Eby. He stated he considered that: Alvin indicated to his brother that he may have killed Cervera; Cervera and Alvin were seen together at Cervera’s property shortly before the murdet; Alvin showed up at Mike Neely’s home around the time of the murder with blood on his shirt and in possession of a large wad of cash, bragging about beating up a man and taking his money; Alvin was violent and a drug abuser; Alvin smoked Swisher Sweet cigars and drank Old Milwaukee beer; and a baseball bat was missing from the residence where Alvin resided at the time of the murder. According to Robertson, he did not believe there was sufficient evidence indicating Alvin was the murderer.

Robertson explained that he did not believe any of the witnesses’ statements im-pheating Alvin as the perpetrator because he found such statements to be unbelievable. Robertson stated he discredited the statements because they were made after the witnesses had an opportunity to converse about the murder. Robertson conceded, however, that he did not personally interview several of the witnesses he claimed to be unbelievable. Robertson further testified that he excluded Alvin as a suspect when he learned Alvin’s DNA did not match any of the DNA found at the crime scene.

Dr. Randall Frost, a forensic pathologist, testified an autopsy of Cervera’s body revealed that Cervera died of blunt force trauma to the head. Frost stated that Cervera suffered extensive fracturing to his head and face. He also stated Cervera had several large lacerations on the back of his head and two smaller lacerations on the front of his head. Cervera’s body, however, had no other lacerations, broken bones, or other visible injuries. Frost estimated that Cervera’s death occurred “anywhere from 48 hours on out to several more days, maybe as much as a week” before his body was found by authorities. He further testified that the perpetrator of the offense could have had Cervera’s blood transferred to him or her during the attack.

Jack McElligott, owner of Safety Shoe Distributors, testified his company sold boots with treads capable of making the imprints found at the crime scene. McEl-ligott testified that Eby purchased five different pairs of boots from his company; however, none of the boots had treads capable of making the imprints left at the crime scene.

Henry Amen, a trace evidence expert, testified that the measurement of the bloody shoe impressions left at the crime scene measured 12.1 inches in length. According to Amen, this imprint length translated into a casual or athletic shoe size range of 11 to 12.5. Amen further noted that a 12.1 imprint length would translate into a work boot size range of 8 to 10. Amen stated that he could not specifically identify the size or style of the footwear that left the imprints at the crime scene.

Humberto Ramos, an employee of SAWS, described Eby’s job at SAWS. Ramos explained that Eby had a work vehicle and worked unsupervised. According to Ramos, Eby’s job required him to travel to different sites throughout San Antonio. He stated Eby typically worked from 7:45 a.m. until 4:30 p.m. Ramos stated records from SAWS reflect that Eby took two and one half hours of leave on April 6, 1998 and five and one quarter hours of leave on April 7, 1998. He also stated Eby filed an accident report on April 14, 1998, claiming he injured his finger while handling a toilet on April 13,1998.

Dr. Carlos Porter testified he treated Eby for a laceration on his ring finger on April 13, 1998, at around 10:40 a.m. Porter stated Eby’s laceration required sutures. He estimated Eby’s injury was “definitely less than 24 hours old.”

Garon Foster, a technical leader of the forensic serology DNA section at the criminal investigation laboratory, testified about the transfer of DNA between individuals. Foster stated that a person can get DNA on his fingernails from multiple sources, including saliva, the skin from inside the mouth, blood, and semen. According to Foster, DNA can be transferred by a fingernail scratch to an individual’s skin; however, the scratch must penetrate into the person’s living tissue. Foster also stated DNA can be transferred by a fingernail scratch to an individual’s skin if there is genetic material, like saliva, on the surface of the skin.

Foster further explained that DNA can be transferred from one person to another without any direct contact between the individuals. He stated that there is no way to determine if something is secondarily transferred or not. Foster opined that it is possible for DNA to be transferred from a person to a pair of work gloves. For example, Foster indicated that DNA may be transferred from a person to a pair of work gloves if, before the individual puts on the gloves, the person wounds' his hand in some way, spits on his hands, or uses his hands to scratch himself. Foster testified that he has documented many instances of secondary DNA transfer in his career.

Ramiro Cervera, Cervera’s brother, testified. Cervera introduced him to Alvin Lindblom two weeks before his death. Ramiro stated his brother brought Alvin to his house to borrow a lawnmower. He stated Alvin made him uncomfortable and he did not want Cervera associating with Alvin.

Officer Dalton Baker was called to testify regarding his participation in the murder investigation. Based on his investigation of the crime scene and interviews with approximately ten witnesses, Baker stated he developed Alvin as a suspect. According to Baker, Alvin knew the manner and means of Cervera’s death, and consistently described the crime scene and Cervera’s death to multiple people. Consequently, Baker concluded Alvin murdered Cervera. He further concluded Alvin committed the murder with a baseball bat. Dalton stated that his investigation led to Alvin’s arrest and indictment for Cervera’s murder. Dalton admitted that at the time he made his conclusion about Alvin, he did not know Eby’s DNA was present on Cervera’s fingernails.

Connie Almand, one of Cervera’s neighbors, testified that she, along with her daughter and future husband Steven Hardin, lived with her father, Richard Houghtling,' before Cervera’s death. When Connie and her family moved out of Houghtling’s residence, her daughter left behind some of her belongings, including a baseball bat and glove. Alvin moved into Houghtling’s residence after Connie and her family moved out. Alvin stayed in Connie’s daughter’s old bedroom, where her baseball bat was kept. Connie stated she searched for her daughter’s baseball bat after learning Cervera may have been murdered with one. She testified that Alvin discovered her looking for the bat and appeared to be worried about “people searching through his stuff.” Connie stated she was unable to find her daughter’s baseball bat.

Connie also recalled that Alvin and another individual came by her residence one morning at 3:00 a.m. before Cervera’s body was discovered. According to Connie, the men were looking for her husband to help them purchase cocaine. Connie noticed that the individual with Alvin had a light red mark on his face, which she described as either a slap mark or an attempt to rub something off his face. She stated that both Alvin and his companion were drunk and bragging about being in a fight, beating somebody up, and taking all of the person’s money. Connie further testified that she remembered seeing Alvin and Paul Wold load a lawn mower onto a trailer, and saw Alvin drive off with the lawnmower. Alvin told Connie that he was helping Cervera clear his property and that Cervera “was going to pay him real good.”

Richard Houghtling, one of Cervera’s neighbors, testified that he rented a room to Alvin. Houghtling stated that when authorities came looking for Alvin after the murder, Alvin “took off before they got there.” He stated that his granddaughter’s baseball bat was missing from his residence. Houghtling indicated Alvin had a reputation for drugs and drinking, and he had observed Alvin strung out on cocaine to the point where Alvin did not know what he was doing. Houghtling also stated Alvin had a quick temper, and often appeared “beat up pretty bad.” When Alvin learned that Houghtling had talked to the authorities, Alvin threatened to physically harm Houghtling.

Eby testified on his own behalf during trial. He denied murdering Cervera. Eby stated that he knew Debra still spoke with Cervera through a pager and that Cervera had purchased a vehicle for her. According to Eby, he had never personally met Cervera or visited his property. Eby stated that he knew Cervera was purchasing a piece of property so that Timmy could visit with him. He stated he and Debra had some concerns for Timmy’s safety at the property due to its poor condition. When Debra went to help Cervera clean the property, she took a pair of his well-worn leather gloves and some of his shop rags with her. Eby never saw his gloves or rags again.

Eby testified that all of his work boots were in his closet at the time the authorities searched his residence. Eby further testified Debra was a beneficiary under Cervera’s life insurance policy, but that he did not learn she was a beneficiary until about a year after Cervera’s death. Eby could not recall how much insurance proceeds Debra received after Cervera’s death. Eby also testified that he declared bankruptcy about six months after Cerv-era’s death.

Debra also testified on Eby’s behalf. Debra testified that Cervera knew that she and Eby were married. She stated that although she and Eby were married, she still communicated with Cervera through a pager. Debra testified that Cervera purchased his property to provide a better place for his children. When Debra went to help Cervera clean the property, she took a pair of Eby’s gloves and some of Eby’s rags with her. Debra testified she used Eby’s gloves to clean debris in Cerv-era’s kitchen and that Cervera subsequently used the gloves when he cut some tall grass. Debra indicated that she worked with Cervera on both April 5 and April 6, 1998. When she left Cervera’s property on April 6, she did not take Eby’s gloves or rags with her, and never saw them again. Debra testified that she did not know she was a beneficiary under Cerv-era’s life insurance policy, and stated she received between $30,000 and $40,000 from the insurance company after his death.

After lengthy deliberations, the jury found Eby guilty of murder. Eby was sentenced to life in prison and this appeal followed.

Sufficiency of the Evidence

A. Legal Sufficiency Challenge

In his first issue, Eby contends the evidence is legally insufficient to support his conviction. The standard for reviewing a challenge to the legal sufficiency of the evidence is the same for both direct and circumstantial evidence cases. Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex.Crim.App.1984). When a party attacks the legal sufficiency of the evidence, we view the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Mason v. State, 905 S.W.2d 570, 574 (Tex.Crim.App.1995). In our review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999). Although our analysis considers all the evidence presented at trial, we may not re-evaluate the weight and credibility of the record evidence and substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App.2000); Dewberry, 4 S.W.3d at 740. If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm the trial court’s judgment. McDuff v. State, 939 S.W.2d 607, 614 (Tex.Crim.App.1997).

After reviewing the evidence in this case, we hold that the evidence is legally sufficient to support Eby’s conviction. Eby does not dispute that Cervera was murdered, see Tex. Pen.Code Ann. § 19.02 (Vernon 2003); rather, he disputes that he was the person who committed the murder. The record indicates that Eby may have had a motive to kill Cervera. Around the time of the murder, Eby was facing financial troubles that ultimately forced him to declare bankruptcy. Coincidentally, Eby’s wife, Debra, was a beneficiary under Cervera’s life insurance policy and was scheduled to receive between $30,000 and $40,000 upon Cervera’s death. The record also reveals that Eby had an opportunity to commit Cervera’s murder during the time period- it is alleged to have occurred, as Eby worked unsupervised throughout the wéek. The record further reveals that DNA consistent with Eby’s DNA was found at the crime scene on Cervera’s fingernails. Lastly, Eby’s work boot size falls within the range of sizes experts believe could have made- the imprints found at the crime scene. Examining all the evidence in the light most favorable to the verdict, we hold any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Eby’s first issue is therefore overruled.

B. Factual Sufficiency Challenge

In his second issue, Eby contends the evidence is factually insufficient to support his conviction. The standard for reviewing a challenge to the factual sufficiency of the evidence is the same for both direct and circumstantial evidence cases. King, 29 S.W.3d at 565. When reviewing the factual sufficiency of the evidence, there is only one question to be answered: considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App.2004). There are two ways in which evidence may be factually insufficient. Id. “First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not. have been met, so the guilty verdict should not stand.” Id. at 485.

In a factual sufficiency review, we give deference to the jury’s determinations, including determinations involving the credibility and demeanor of witnesses. Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the jury. Zuniga, 144 S.W.3d at 482. Moreover, we will not set aside the judgment unless the jury’s verdict was clearly wrong and manifestly unjust, i.e., where the jury’s finding “shocks the conscience” or “clearly demonstrates bias.” Id. at 481.

After reviewing all of the relevant evidence in a neutral light, it is evident that the evidence contrary to the verdict is strong enough such that the beyond-a-reasonable-doubt standard could not have been met in this case. We therefore hold that the evidence is factually insufficient to support Eby’s conviction.

The case for the prosecution was entirely circumstantial. The State believed Eby murdered Cervera sometime between the dates of April 6 and April 13, 1998, with a particular emphasis on April 6 and April 7 because Eby took leave from work on those days. The State surmised that Eby murdered Cervera for his insurance proceeds or because Cervera was having an affair with his wife. In support of its case, the State emphasized the fact that DNA consistent with Eby’s DNA was found on Cervera’s fingernails. The State theorized that this DNA likely came from the finger laceration Eby sought medical treatment for on the day Cervera’s body was discovered. The State also emphasized that the length of the bloody footprints found at the crime scene correlate to Eby’s work boot size. Lastly, the State noted that Eby purchased his footwear from a company (Safety Shoe Distributors) that sells boots with treads capable of making the imprints found at the crime scene.

With respect to this evidence, there are several points worth noting. First, it was undisputed during trial that witnesses saw Cervera alive as late as April 8, 1998. Second, there is no evidence that Debra and Cervera were having an affair, or if they were, that Eby was aware of the affair. Nor is there any evidence demonstrating that Eby knew Debra was a beneficiary under Cervera’s insurance policy at the time of the murder. Third, the record indicates that DNA may be transferred from one person to another without any direct contact between the individuals, including by way of a pair of work gloves. Fifth, the record indicates that the injury Eby sustained to his finger occurred sometime after Cervera’s death. The record reveals that Cervera’s body was discovered sometime after 6:00 p.m. on April 13,1998. According to medical testimony, Cervera died anywhere from 48 hours to as long as a week before his body was finally discovered. Eby’s injury, however, was less than 24 hours old when he sought treatment for it at 10:40 a.m. on April 13, 1998. Sixth, the witness who testified concerning the length of the footprints left at the crime scene explained that the footprints correspond to either a size 8 to 10 work boot or a size 11 to 12.5 casual/athletic shoe. According to the witness, he could not identify the actual size or style of the footwear leaving the imprints. Lastly, the record indicates that Eby never purchased a pair of work boots from Safety Shoe Distributors with treads capable of making the imprints found at the crime scene.

Besides the aforementioned evidence, the record includes evidence that Cervera was last seen in the presence of Alvin Lindblom, a violent individual with a quick temper. Around the alleged time of the murder, Alvin appeared at several of Cerv-era’s neighbor’s homes in possession of a large sum of money, bragging about beating someone up and taking the person’s money. One of the neighbors even indicated that Alvin was wearing a bloody shirt at the time he appeared at his home. In the months following this event, Alvin described the crime scene and Cervera’s death to various individuals. In fact, Alvin confessed to his brother that he bludgeoned Cervera with a baseball bat.

Finally, the record includes evidence that Alvin resided with Richard Hough-tling at the time of the murder. According to witness testimony, Alvin stayed in a bedroom where a baseball bat was kept. After Cervera’s murder was discovered, this baseball bat was discovered missing from Alvin’s room. The record indicates that Alvin appeared worried when he discovered “people searching through his stuff’ after Cervera’s murder. When Alvin learned Houghtling had talked to the authorities about the murder, Alvin threatened Houghtling with physical harm.

In light of the record before us, we must conclude that the evidence contrary to the verdict is strong enough such that the beyond-a-reasonable-doubt standard could not have been met in this case. Because we believe the jury’s verdict is clearly wrong and manifestly unjust, we hold there is factually insufficient evidence to support Eb/s conviction. See Zuniga, 144 S.W.3d at 481. We therefore sustain Eby’s second issue.

Although we have determined that the trial court’s judgment must be reversed and the cause remanded for a new trial, we deem it advisable to address several additional issues that will undoubtedly confront the trial court on remand.

Hearsay Evidence

In his third issue, Eby argues the trial court should have admitted the testimony of Officer Dalton Baker, John Hardin, and Ronald Lindblom concerning the out-of-court statements made by Alvin relating to the murder. Neither party disputes that the statements in question are hearsay. Hearsay is inadmissable unless expressly excepted or excluded from the general rule by statute or the rules of evidence. Tex.R. Evid. 802. One such exception is statements against interest. See Tex.R. Evid. 803(24). A statement against interest is a statement at the time of its making that was so far contrary to the declarant’s interest or so far tended to subject the declarant to criminal liability, a reasonable person in the declarant’s position would not have made it unless he believed it to be true. Id.

For a statement to be admissible under Rule 803(24), two requirements must be met: (1) the statement in question must expose the declarant to criminal liability; and (2) there must be corroborating circumstances that clearly indicate the trustworthiness of the statement. Bingham v. State, 987 S.W.2d 54, 57 (Tex.Crim.App.1999). The party seeking admission of the statement has the burden of producing corroborating evidence to prove the trustworthiness of the statement. Cofield v. State, 891 S.W.2d 952, 955 (Tex.Crim.App.1994). There is no definitive test to determine whether corroborating circumstances exist for purposes of Rule 803(24). “Any number of factors may be considered in this inquiry, including whether the guilt of the declarant is inconsistent with the guilt of the accused, whether the declarant was so situated that he might have committed the crime, the timing of the declaration and its spontaneity, the relationship between the declarant and the party to whom the declaration was made, and the existence of independent corroborating facts.” Davis v. State, 872 S.W.2d 743, 749 (Tex.Crim.App.1994).

The court is required to consider both circumstances which support as well as those which undermine the reliability of the declarant. Id. However, the court is not to “consider the ‘credibility of the in-court witness,’ since credibility presents an issue for the jury.” Fonseca v. State, 908 S.W.2d 519, 522 (Tex.App.-San Antonio 1995, no pet.). “The overriding consideration is that the requirement of corroboration should be utilized and construed in such a manner as to effectuate its purpose of circumventing fabrication.” Cunningham v. State, 877 S.W.2d 310, 312 (Tex.Crim.App.1994).

Eby’s defense at trial was misidentification. In support of that defense, Eby sought to introduce testimony from Officer Baker, John Hardin, and Roland Lind-blom, indicating Eby was not the perpetrator of the offense. The trial court, however, sustained the State’s objection that this testimony was inadmissible hearsay.

Eby sought to introduce testimony from Officer Baker concerning the statements he obtained from Alvin while Alvin was in police custody. During the first interview with Baker, Alvin denied murdering Cerv-era or having any knowledge of the murder. Alvin later stated, that if he did commit the crime, he did not remember it because he was “all fired up on cocaine.” Alvin admitted that he was in possession of a large sum of money around the time of Cervera’s death, but claimed he had borrowed the money from one of his brothers. He later admitted having taken the money from his brother. Alvin stated he had made up the story about beating someone up and taking the person’s money in case his brother discovered the missing money.

Alvin also denied having blood on his shirt or attempting to borrow a shirt from one of his neighbors around the time of the murder. He later admitted to having blood on his shirt from butchering an emu. Alvin later changed his story, claiming his shirt was bloody because he had just “beat up a man.” Alvin, however, again changed his story, claiming he tore his shirt himself to make it look as though he had been in a fight. Alvin told Baker that he smoked Swisher Sweet cigars and drank Old Milwaukee beer.

Eby also sought to introduce the testimony of John Hardin concerning statements Alvin made to him in November of 1998. According to Hardin, Alvin told him that an individual had hired Alvin, Alvin’s brother (Ronnie), and Clay Holsten to renovate a piece of property the individual was in the process of purchasing. When the three men went to the property to drop off a lawnmower, Alvin allegedly killed the guy with a baseball bat and stole a large sum of money from the guy. Alvin revealed that he “beat the shit out of [the guy] and crushed his face.” Alvin also stated “he beat the guy so bad that the floors, walls, and ceiling [were] covered in blood.”

After the men left the individual’s property, Alvin returned to his trailer park to get a clean shirt because his was covered in blood. Alvin attempted to borrow a shirt from one of his neighbors but the neighbor refused to loan him one. Alvin subsequently met up with his friend Benny McBain and attempted to purchase cocaine from one of Alvin’s neighbors. Hardin stated that Alvin burned his clothing and painted his truck white to hide it after the murder.

In addition, Eby sought to introduce the statements of Roland Lindblom concerning Alvin’s prior statements about Cervera’s death. Sometime around the end of April 1998, Alvin told Roland that he had repaired a lawnmower for Cervera. When Alvin returned the lawnmower to Cervera, Alvin, along with an individual named McBain, hit Cervera in the head with a baseball bat. Alvin and McBain took Cervera’s money after they knocked him out with the baseball bat. After the incident, Alvin painted the truck he used to tow the lawnmower to Cervera’s property white.

It is beyond question that the statements Alvin made to Officer Baker, Hardin, and Roland implicated Alvin in Cerv-era’s murder, and thus tended to expose him to criminal liability. The pertinent inquiry then is whether corroborating circumstances clearly indicate the trustworthiness of the statements. See Bingham, 987 S.W.2d at 57. Here, it appears that there are corroborating circumstances indicating the trustworthiness of the statements.

First, the investigating officers in this case revealed that they believed only one person committed Cervera’s murder, citing the fact that there was only one set of bloody footprints at the crime scene. Alvin’s confession of guilt was therefore inconsistent with the guilt of anyone else, including Eby, because only one person could have committed the crime. Second, the record reveals that Alvin was known to be working for Cervera at the property Cervera was purchasing. Alvin was seen in Cervera’s presence on multiple occasions, including April 8, 1998, a date right around the time the murder was alleged to have occurred. Alvin was thus situated to have committed Cervera’s murder. Third, the majority of Alvin’s statements were made at a time when the police were still investigating who had committed Cerv-era’s murder. Fourth, the majority of Alvin’s statements were spontaneous and made to either a relative or a criminal acquaintance not connected with the commission of the alleged offense.

Finally, Eby developed independent corroborative facts that verified the reliability of Alvin’s statements to Officer Baker, Roland, and Hardin. In the alleged statement to Officer Baker, Alvin admitted possessing a large sum of money and appearing at one of his neighbor’s houses with blood on his shirt around the time of the murder. The evidence in the record reveals that Alvin and another individual appeared at Connie Almand’s residence one morning bragging about stealing someone’s money. The record also reveals that Mike Neely, one of Alvin’s neighbors, told authorities Alvin appeared at his house one night around the time of the murder wearing a bloody shirt, bragging about beating someone up and taking the person’s money.

Alvin’s alleged statements to Roland and Hardin about striking Cervera with a baseball bat are consistent with the physical evidence, as Cervera’s head injuries were consistent with being struck with a blunt object like a baseball bat. The statements are further corroborated by the fact that Alvin told multiple people that he struck Cervera in the head with a baseball bat and stole his money.

In the alleged statements to Hardin, Alvin described the extent of the blood splatter on the floors, walls, and ceiling; indicated that he appeared at one of his neighbor’s houses wearing a bloody shirt; and indicated. that he went to his trailer park after the murder to purchase cocaine. The evidence in the record reveals Alvin’s statements regarding. the crime scene blood splatter were consistent with the physical evidence. The evidence also reveals that Alvin appeared at Connie Al-mand’s residence one morning around the time of the murder looking for her husband to purchase cocaine. Lastly, as previously discussed, the record indicates Alvin appeared at Mike Neely’s house around the time of the murder wearing a bloody shirt.

The record, however, also includes evidence indicating some of Alvin’s statements may be untrustworthy. Alvin’s statements to Hardin were made at a time when Alvin was allegedly intoxicated and his statements to Baker were made in response to police interrogation. Also, Alvin’s statements to Roland and Hardin were inconsistent regarding who accompanied Alvin when he went to Cervera’s property. The record indicates that Roland alleges McBain was with Alvin at the time of the murder, while Hardin alleges Ronnie Lindblom and an individual named Clay were with Alvin. Further, no murder weapon was ever recovered in this case, so it is unclear’ whether a baseball bat was in fact the weapon used to bludgeon Cerv-era.

Considering the relevant factors, it appears the corroborating evidence, even in light of evidence tending to undermine the trustworthiness of Alvin’s statements, is sufficiently convincing to indicate trustworthiness. Alvin’s statements to Officer Baker, Roland, and Hardin, if believed, could create a reasonable doubt as to Eby’s guilt. Thus, the trial court acted outside the zone of reasonable disagreement when it excluded the statements in question.

Motive

In his fourth issue, Eby argues the trial court erred by admitting testimony regarding Cervera’s life insurance policy to establish a motive for Cervera’s murder. Eby maintains that without proof he knew his wife was a beneficiary under the policy, such evidence was irrelevant and inadmissible against him.

Evidence showing an accused’s motive to murder is admissible as relevant evidence. Miranda v. State, 813 S.W.2d 724, 733 (Tex.App.-San Antonio 1991, pet. ref'd). However, such evidence is admissible only if accompanied by proof showing that, at the time of the murder, the accused had knowledge of the facts constituting the motive. Jernigan v. State, 585 S.W.2d 701, 704 (Tex.Crim.App.1979); Winn v. State, 937 S.W.2d 124, 128 (Tex.App.-Amarillo 1996, no pet.). Thus, “facts unknown to the accused cannot be proven to show motive for a killing, and that proof of facts not directly or circumstantially shown to be known to the accused at the time of the homicide is not admissible against him to show motive on his part.” Winn, 937 S.W.2d at 128.

Here, while Eby was testifying, the prosecution was permitted, over defense counsel’s objection, to develop testimony regarding Cervera’s life insurance policy.

Q. And when did you find out Debra was still a beneficiary on [Cervera’s] life insurance?
A. It was well after the fact. After he was — after he was found.
Defense Counsel: Judge, we’re going to object to the relevance of this line of questioning.
The Court: Overruled.
Q. Well, after the fact. After [Cerv-era] was murdered you found out that she was still a beneficiary on his life insurance?
A. I found out about a year later.
Q. A year later. And how much did you all collect on him?
A. I have no—
Defense Counsel: Your Honor, we’re going to object to all of this line of questioning. May we approach, Your Honor? (At the bench)
Defense Counsel: Judge, this is the exact evidence that the Court has indicated was entirely inadmissible without showing that he knew. And now she has stated as an absolute fact that they did collect insurance, and is going into the amount of insurance, in total violation of the motion in limine that this Court has already entered. And we move for a mistrial on this basis, that the prosecution has injected before this jury evidence of motive that this Court had heretofore excluded. And we object that it is highly prejudicial, violation of the limine, and the State was specifically instructed not to go into any of that without laying the proper predicate. They have laid no predicate whatsoever, and they have now injected it before this jury, both the affair and the insurance.
The Court: Overruled. (End of bench discussion).
Q. How much did you collect on the insurance?
A. I don’t recall.
Q You don’t recall?
A. No, I do not, ma’am.
Q. Well, isn’t it true that it was over $300,000?
A. I never saw that amount of money in my life, ma’am.
Q. Okay. And, in fact, you actually shortly after the murder filed for bankruptcy; isn’t it true?
Defense Counsel: Object to relevance.
Prosecution: Judge, it goes to financial motive.
Defense Counsel: Again, Your Honor, this is exactly why we are making this objection, is that she is attempting to put before this jury a motive unknown to the defendant.
The Court: Overruled. Overruled.
Q. Isn’t it true that you filed for bankruptcy shortly after this murder occurred?
A. Yes. In October of 1998.
Q. In October of 1998. When did you all collect on the insurance?
A. We didn’t get it until sometime in '99, after — well after April. It was after the arrest of Lindblom.
Q. After the arrest of Lindblom—
A. Yes.
Q. —that’s when you got it? And were you aware that [Cervera] continued to carry Debra on his health insurance as a spouse?
Defense Counsel: I’m going to object. That calls for hearsay, Judge. There’s no evidence before this jury. Object, it calls for hearsay.
Prosecution: If he knew, Judge. I’m asking if he knew.
Defense Counsel: It assumes a fact—
The Court: Overruled.
Defense Counsel: Well, Judge, we’re going to have running line of objections so I don’t have to object to every line of question where this prosecutor is phrasing the question that assumes a fact not in evidence, which they have not put any evidence before this jury through any witness. It’s calling—
The Court: The specific question, you[r] specific question objection as to that question is overruled. Let’s move on.
Q. Do you know?
A. No, I don’t.
Q. Would it surprise you to know that the human resources person was under the impression that they were still married—
Defense Counsel: I object. It calls for speculation.
The Court: Sustained as to that question.
Defense Counsel: Be instructed to— Ask the jury be instructed to disregard the statements of counsel in terms of what the person was surprised or otherwise surprised as far as her statement.
The Court: Ladies and gentlemen, please remember what the attorneys say in this case is not evidence. You may proceed.
Q. Were you—
Defense Counsel: And we also move for a mistrial in that regard, Judge.
The Court: Denied.

Before cross-examining Debra, the prosecution informed the trial court that it intended to ask Debra all the same things it had asked Eby. Defense counsel objected as follows:

And we have the same objection that we did to the defendant’s statements. That I object — the record is clear what I’m objecting to, to anything about insurance, anything about this affair. There’s no way to connect it to the defendant. The State is aware that they have no witness that could show the defendant knew. And we object to the Court allowing any questioning, even do you know or have you heard, because of the injection of this material before the State — before this jury as a matter of fact, and that’s the way the questions are being presented, which is clear from the way she questioned the defendant, did you know that the family was in shock, that assumes a fact, and did you know about the insurance.
The Court: I believe I sustained your objection to that question.
Defense Counsel: That particular one, but the whole line of questioning Judge, is what we’re objecting to.
The Court: Unless I know specifically what the question is and specifically what the objection is, I can’t rule. So go ahead.

The prosecution proceeded to cross-examine Debra as follows:

Q. Ma’am, you were listed as a beneficiary on [Cervera’s] life insurance, weren’t you?
A. I had no idea until the insurance contacted me.
Q. They contacted you?
A. Yes, ma’am.
Q. So you did not contact them two weeks after the murder and ask them when you were receiving your money?
A. No, ma’am, I did not.
Q. Okay. And were you still listed as a spouse on [Cervera’s] health insurance, weren’t you?
Defense Counsel: Same objection, Judge. It calls for hearsay and assumes matters not in evidence.
Prosecution: If she knows, Judge.
The Court: She can answer if she knows.
The Witness: Could you repeat the question, ma’am?
Q. Were you listed as a spouse on [Cervera’s] health insurance?
A. I’m not — I don’t know.
Q. You don’t know—
A. No, ma’am.
Q. —that he was still carrying you and Timothy?
Defense Counsel: Same objection. She’s testifying as if this is a fact, Judge. There’s no evidence before the jury, now she’s arguing with her.
The Court: Let’s move on.
Defense Counsel: Objection to her statements, Your Honor.
The Court: Sustained. Let’s move on.
Q. How much money did you collect on the life insurance of Roland Cervera?
A. I don’t recall off the top of my head the exact amount, because [Cerv-era]' — •
Q. Was it over a hundred thousand?
A. No, ma’am.
Q. How much was it?
A. It was 30 or $40,000, ma’am.
Q. Okay. And Roland also had accidental death insurance, didn’t he?
A. I don’t know ma’am.
Q. You don’t know. Well, you collected it.
A. I just got what the insurance sent, ma’am.

In the underlying proceeding, the State wholly failed to present any evidence, direct or circumstantial, that Eby had any knowledge that his wife was a beneficiary under Cervera’s life insurance policy. Without such evidence, the insurance motive evidence was irrelevant and should have been excluded from the consideration of the jury by the trial court. See Jernigan, 585 S.W.2d at 704 (holding evidence of a wife’s extramarital relationship was not admissible to show motive because it was never established that the defendant-husband was aware of the relationship); Winn, 937 S.W.2d at 128 (holding evidence concerning victims’ trust account was not admissible to show motive because the State never demonstrated the defendant had any knowledge that he was a beneficiary of the trust). Upon another trial, however, the State should be given the opportunity to prove, if it can, that Eby had knowledge his wife was a beneficiary under Cervera’s life insurance policy at the time of the murder.

IMPROPER Cross Examination Questions

In his fifth issue, Eby argues the trial court erred by allowing the prosecution to cross-examine him about a possible affair between Debra and Cervera. A defendant who exercises his right to testify is subject to the same rules governing examination and cross-examination as any other witness, whether he testifies at the guilt-innocence stage or at the punishment stage of the trial. Felder v. State, 848 S.W.2d 85, 99 (Tex.Crim.App.1992). The scope of cross-examination of a defendant is wide open. Id. Once the defendant testifies at trial, he opens himself up to questioning by the prosecutor on any subject matter that is relevant. Id. However, “the prosecution cannot attempt to establish a theory of [the defendant’s] actions by questions alone, with no basis in fact. Nor may the prosecution attempt to get before the jury, indirectly through [its] cross-examination, evidence in which the subject matter is inadmissible.” Hartman v. State, 507 S.W.2d 553, 556 (Tex.Crim. App.1974).

In the instant case, the State’s line of questioning was irrelevant because the State failed to introduce any direct or circumstantial evidence that Eby had any knowledge of an affair between his wife and Cervera. Therefore, it was improper for the State to explore the marital affair subject when it had no basis in fact for the inquiry. Once again, however, the State should be given the opportunity at the new trial to show, if it can, any relationship between Eby, Debra, and Cervera which would shed light on Eby’s motives and intent to kill Cervera.

Conclusion

Based on the foregoing, the judgment of the trial court is reversed and the cause is remanded for further proceedings consistent with this opinion.

      . The door led from the garage to a closed-off porch. This is where Cervera's body was eventually discovered.

      . Eby's work records indicate that Eby arrived at work two and one half hours late this day because he was registering his son at school.

      . Eby’s work records actually indicate Eby left work at 10:30 a.m., not 1:00 p.m.

      .A search of Eby’s home and personal vehicles revealed no evidence implicating Eby in Cervera’s murder. Officers compared the soles of footwear found in Eby’s home with the bloody footprints left at the crime scene. None of the soles of the footwear found in Eby’s home matched the bloody footprints.

      . The witnesses apparently repeated the same information that they had previously given to authorities. Several of the witnesses noted that they were reluctant to talk to the officer because they were afraid of Alvin and his violent disposition.

      . Alvin wears a size 11.5.

      . Eby wears a size 9.

      . Defense counsel subpoenaed Roland to testify, but he did not appear. Counsel advised the court that he would seek a writ of attachment for Roland if the court would allow his testimony. Because the court sustained the prosecution’s objection to Roland’s testimony, defense counsel introduced a written statement from Roland to demonstrate the nature of the testimony he sought to introduce through the witness.

      . Alvin made his statements to Roland several weeks after the murder and his statements to Hardin approximately six months after the murder.

      . Roland was Alvin’s brother while Hardin was Alvin's former cell mate.

      . Defense counsel introduced an additional written statement from Steve Hardin during trial to demonstrate the reliability of Alvin's statements to John Hardin. According to Steve’s statement, Alvin appeared at his residence one morning with an individual named McBain looking to purchase cocaine. When he was there, Alvin stated he “whooped up on this guy with a bat and took his money.” Alvin further indicated that the person whom he beat had hired him to clean brush at a piece of property in the country.

      . The State also points out that the proffered evidence was unreliable because the statements were not conveyed to authorities until almost a year after the murder and there was a great deal of media attention in the case. These contentions, however, relate to the credibility of the testifying witnesses. The court of criminal appeals has indicated that the credibility of in-court witnesses presents an issue for the jury, not this court or the trial judge. See Cunningham, 877 S.W.2d at 312.

      . The improper questions were asked but not answered by Eby because the trial court sustained defense counsel's objections to the questions. Eby also complains that the trial court erred by allowing the State to cross-examine his wife on the same subject. She, like Eby, did not answer the questions posed because defense counsel’s objections to the questions were sustained by the trial court.