source: Caselaw Access Project

author: WILLIAM C. KOCH, JR., J„

license: Public Domain

text:
    Teresa McEWEN v. TENNESSEE DEPARTMENT OF SAFETY.
    Court of Appeals of Tennessee, at Nashville.
    Assigned on Briefs Aug. 11, 2003.
    March 22, 2005.
    Published Pursuant to Tenn. Ct. App. R. 11.

      Charles R. Ray and Jeffery S. Frensley, Nashville, Tennessee, for the appellant, Teresa McEwen.
    Paul G. Summers, Attorney General and Reporter, and Michael A. Meyer, Assistant Attorney General, for the appellee, Tennessee Department of Safety.
   OPINION

WILLIAM C. KOCH, JR., J„

delivered the opinion of the court,

in which WILLIAM B. CAIN and PATRICIA J. COTTRELL, JJ., joined.

This appeal involves the forfeiture of personal property seized incident to a criminal investigation into the illegal sale of controlled substances. The owner of the property filed a claim for its recovery with the Tennessee Department of Safety. The Appeals Division of the Department of Safety, overruling an administrative law judge’s initial order, ordered the forfeiture of all the seized property except a pickup track. Thereafter, the owner filed a petition in the Chancery Court for Davidson County seeking judicial review of the Appeals Division’s forfeiture order. The trial court affirmed the forfeiture order, and the owner of the property appealed. Although we disagree with the trial court’s reasoning, we likewise affirm the forfeiture order.

I.

Between October 3 and December 4, 1997, a confidential informant working with the Metropolitan Nashville Police Department purchased controlled substances from Teresa McEwen and William Robert Allen on eight separate occasions. The informant wore a recording device during these transactions and recorded telephone calls involving other illegal drug transactions between Ms. McEwen and Mr. Allen and other customers. The informant also personally observed drug transactions between Ms. McEwen and Mr. Allen and other customers. At one point, Ms. McEwen bragged to the informant that she and Mr. Allen could obtain and sell as many illegal drugs as the informant desired.

On December 5, 1997, Officer Greg Jones arrested Ms. McEwen two blocks from her home. Officer Jones discovered $455 in cash and Schedule IV controlled substances in her purse. The authorities then arrested Mr. Allen at the residence he shared with Ms. McEwen. When Mr. Allen was arrested, he possessed $1,505 in cash and a quantity of marijuana. The authorities searched the residence pursuant to a search warrant and seized marijuana, Diazepam and Clonazepam, various items of drug paraphernalia, two firearms, $1,960 in currency, many pieces of gold and silver jewelry, audio and video equipment, a coin collection, other items of personal property, and financial records belonging to Ms. McEwen and Mr. Allen. They also searched Mr. Allen’s garage adjacent to the residence and seized eight vehicles, two race cars, two trailers, a go-cart, various automobile parts, and automotive tools and equipment.

When Ms. McEwen was arrested, she was working for Keepsake, Inc. and was earning approximately $3,800 per year. She also earned $35 per week helping Shelley Phillips clean her house. Ms. McEwen was also receiving food stamps and was on TennCare. Mr. Allen apparently earned some money repairing motor vehicles, drag racing, moving houses, and performing other odd jobs. The amount of his income was unclear because he had not filed an income tax return for twenty years. Despite their meager incomes, their household records indicated that they had spent approximately $64,000 from January through June 1997, over and above their expenditures for food, fuel and other vehicle expenses, clothing, healthcare expenses, and other similar expenses.

On January 2,1998, Ms. McEwen filed a petition with the Tennessee Department of Safety seeking to recover all of the property seized on December 5,1997. An administrative law judge conducted hearings on September 7 and November 19, 1999, and on April 20, 2000 filed an initial order directing the forfeiture of $1,960 in currency and a .22 caliber pistol and ordering the return of the remainder of the property. On May 5, 2000, the State appealed the initial order to the Appeals Division of the Department of Safety. On February 13, 2001, the Appeals Division issued an order reversing the administrative law judge and directing the forfeiture of all of the seized property except for a 1989 Chevrolet pickup truck that Ms. Phillips had given Ms. McEwen.

On April 12, 2001, Ms. McEwen filed a petition in the Chancery Court for Davidson County seeking judicial review of the Appeals Division’s February 13, 2001 order. On April 26, 2002, the trial court filed an agreed order directing the Commissioner to order the Metropolitan Police Department to return all of the seized property except for (1) $1,960 in currency, (2) certain items of gold and silver jewelry, (3) the .22 caliber pistol, (4) a 1994 Chevrolet pickup truck, and (5) a Yamaha scooter. Thereafter, on October 23, 2002, the trial court entered an order upholding the forfeiture of all of the items of personal property that had not already been returned to Ms. McEwen. Ms. McEwen has appealed.

II.

The Standard of Review For Forfeiture Proceedings

We turn our attention first to the proper standard of review for this case. Ms. McEwen asserts that judicial review of final agency decisions in forfeiture cases like this one should be governed by Tenn. Code Ann. § 27-8-101 (2000), the standard of review associated with petitions for common-law writs of certiorari. The trial court, however, assessed the sufficiency of the State’s evidence using the “substantial and material evidence” standard in Tenn. Code Ann. § 4-5-322(h)(5) (Supp.2004). Both Ms. McEwen and the trial court have chosen the wrong standard of review.

Prior to 1994, the courts reviewed administrative forfeiture decisions using the Uniform Administrative Procedures Act’s now familiar standard of review found in Tenn.Code Ann. § 4-5-322(h) (Supp.2004). This standard required reviewing courts to ascertain whether an agency’s decision is supported by substantial and material evidence. Tenn.Code Ann. § 4-5-322(h)(5). When the Tennessee General Assembly rewrote the procedures governing the forfeiture of personal property in 1994, it replaced the “substantial and material evidence” standard with the “preponderance of the evidence” standard. Tenn.Code Ann. § 40-33-213(a) (2003). Except for this change, the remaining provisions of Tenn.Code Ann. § 4-5-322(h) continue to govern the judicial review of forfeiture proceedings. Tenn.Code Ann. § 40-33-213(b).

One of the chief purposes of the Uniform Administrative Procedures Act was to provide a single method for obtaining judicial review of the decisions of state agencies. Accordingly, with several exceptions not applicable here, petitions for review have, for over thirty years now, replaced petitions for a common-law writ of certiorari as the procedural device for obtaining judicial review. Thus, in forfeiture proceedings, the standard of review in TenmCode Ann. § 4-5-322(h), as modified by TenmCode Ann. § 40-33-213(a), has supplanted the standard of review in Tenn. Code Ann. § 27-8-101. Ms. McEwen cites no authority, and we can find none, for her assertion that TenmCode Ann. § 27-8-101 still governs judicial review of an agency’s forfeiture decisions. Accordingly, we find that her reliance on TenmCode Ann. § 27-8-101 is misplaced.

By the same token, the trial court apparently overlooked the change in the standard of review wrought by Tenn. Code Ann. § 40-33-213(a). The “preponderance of evidence” standard now applies to all seizures occurring after the effective date of the amendment. Because the seizure at issue in this case occurred on December 5, 1997 — well after the effective date of TenmCode Ann. § 40-33-213(a) — the trial court erred by employing the “substantial and material evidence” standard in Tenn. Code Ann. § 4-5-322(h)(5).

Tenn.Code Ann. § 4-5-322 requires courts to engage in a three-step analysis when they review a final administrative order. The court must first determine whether the agency has identified the appropriate legal principles applicable to the case. Then, the court must examine the agency’s factual findings to determine whether they are supported by substantial and material evidence. Finally, the reviewing court must examine how the agency applied the law to the facts. This step is, of course, a highly judgmental process involving mixed questions of law and fact, and great deference must be accorded to the agency. At this stage, the court must determine whether a reasoning mind could reasonably have reached the conclusion reached by the agency, consistent with a proper application of the controlling legal principles. State Comm’n on Human Relations v. Kaydon Ring & Seal, Inc., 149 Md.App. 666, 818 A.2d 259, 275 (2003).

Courts reviewing administrative forfeiture orders use essentially the same three-step analysis. However, instead of reviewing the agency’s findings of fact using the substantial and material evidence standard in TenmCode Ann. § 4-5-322(h)(5), the courts must review the sufficiency of the State’s evidence using the preponderance of the evidence standard required by 40-33-213(a). The trial court used the wrong standard to review the Appeals Division’s final order. We will not compound the error on appeal, and accordingly, we will employ the “preponderance of evidence” standard as required by TenmCode Ann. § 40-33-213(a).

III.

Judicial Review of an Agency OrdeR That Differs from an Initial Order

Ms. McEwen takes issue with the Appeals Division’s refusal to defer to the administrative judge’s factual findings. She points out that it was the administrative judge, not the Appeals Division, who observed the demeanor of the witnesses at the hearing, and she asserts that the Appeals Division’s refusal to accept the administrative law judge’s findings and conclusions was “not only clearly self-serving but likewise arbitrary, capricious and thus illegal.” Ms. McEwen’s argument overlooks the fact that Tennessee’s Uniform Administrative Procedures Act does not require an agency to defer to the fact-finding or legal conclusions in an administrative law judge’s initial order.

Tennessee’s version of the Uniform Administrative Procedures Act allocates the bulk of the decision-making authority to the agencies themselves. Even though the original 1974 version of the Act authorized the use of “hearing examiners” and “administrative judges,” their primary responsibility was to assist the agency in conducting contested case hearings in which the agency members themselves also participated. Tenn.Code Ann. § 4-5-120(b)(1) (repealed 1982). These hearing examiners and administrative judges lacked independent decision-making authority. While they could prepare “proposed decisions” for an agency’s consideration, TenmCode Ann. § 4-5-120(a), (b)(2), the agencies themselves retained the sole authority to render final orders. The 1974 Act contained no provision permitting a proposed decision to become a final decision without first being reviewed and adopted by an agency.

The 1982 revisions to the Uniform Administrative Procedures Act modestly expanded the decision-making authority of the hearing officers and administrative judges. These revisions authorized the hearing officers and administrative judges to issue “initial orders,” Tenn.Code Ann. § 4-5-314(b) (1998), and these initial orders could become final orders by operation of law without being reviewed and approved by the agency. TenmCode Ann. § 4-5-315(a). However, if the agency reviewed an initial order, either at the request of a party or on its own motion, the agency itself was required to prepare and file its own final order. TenmCode Ann. §§ 4-5-314(a), -315(g).

In Tennessee’s administrative decision-making hierarchy, like the hierarchy in most states, the agencies remain superior to the hearing officers and administrative judges. See In re Denial of Eller Media Co.'s Applications for Outdoor Advertising Device Permits in City of Mounds View, 664 N.W.2d 1, 6-7 (Minn.2003). An agency’s decision-making authority is not circumscribed in any way by an initial order. See In re Appeal of Dell, 140 N.H. 484, 668 A.2d 1024, 1032 (1995). Because an agency possesses its own fact-finding authority, it may make its own factual determinations, Moore v. Ross, 687 F.2d 604, 608-09 (2d Cir.1982); Faulkner Radio, Inc. v. Federal Communications Comm’n, 557 F.2d 866, 870 n. 23 (D.C.Cir.1977); 2 Charles H. Koch, Jr., Administrative Law and Practice § 5.28[1], at 94 (2d ed. 1997) (“Admin. Law & Prac.”), and it may substitute its judgment for that of the hearing officer or administrative judge. Valkering, U.S.A., Inc. v. USDA, 48 F.3d 305, 308 (8th Cir.1995); Mattes v. United States, 721 F.2d 1125, 1129 (7th Cir.1983); Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 641 A.2d 899, 908 (1994). Thus, when an agency reviews an initial order, it renders its own decision, Jackson Mobilphone Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 111 (Tenn.Ct.App.1993), and it is the agency’s final order, not the initial order, that is the subject of judicial review. Parker v. Sullivan, 891 F.2d 185, 189 (7th Cir.1989); State Comm’n on Human Relations v. Kaydon Ring & Seal, Inc., 818 A.2d at 275; 2 Admin. Law & Prac. § 5.27[7], at 91.

Tennessee’s version of the Uniform Administrative Procedures Act provides only general guidance regarding the procedure that an agency must follow when reviewing an initial order. While the agency must give the parties an opportunity to submit briefs, it is not required to permit them to present oral argument. Tenn.Code Ann. § 4-5-315(e). An agency must base its findings of fact exclusively on the evidence introduced during the contested case hearing or on matters that have been officially noticed, TenmCode Ann. § 4-5-314(d); however, it is not required to prepare a transcript of the contested case proceeding before rendering its own final order. Tenn.Code Ann. § 4-5-315(f). An agency’s final order must also identify any differences between its findings of fact and conclusions of law and those in the initial order. Tenn.Code Ann. § 4 — 5—315(i). Finally, an agency’s final order must include all of the provisions required by Tenn.Code Ann. § 4-5-314(c). Tenn. Code Ann. § 4 — 5—315(i).

A reviewing court’s task becomes somewhat more complicated when an agency disagrees with the findings of fact in an initial order. See 3 Admin. Law & Prac. § 11.10[3](b), at 73. In that context, it is still the agency’s final order, not the initial order, that is reviewed. Parker v. Sullivan, 891 F.2d at 189; Drexel Burnham Lambert, Inc. v. Commodity Futures Trading Comm’n, 850 F.2d 742, 747 (D.C.Cir.1988). An agency is not bound by the hearing officer’s or administrative judge’s credibility determinations and, in fact, may make its own independent credibility determinations without hearing live testimony. Ryan v. Commodity Futures Trading Comm’n, 145 F.3d 910, 918 (7th Cir.1998); Dept. of Health & Human Servs. v. Maxwell, 156 N.C.App. 260, 576 S.E.2d 688, 691 (2003); 2 Admin. Law & Prac. § 5.64[5](d), at 240.

However, an agency should expect closer judicial scrutiny of its findings of fact when the agency disagrees with a hearing officer’s or administrative judge’s findings of fact. Dantran, Inc. v. United States Dep’t of Labor, 171 F.3d 58, 73 n. 8 (1st Cir.1999), rev’d on other grounds, 246 F.3d 36 (1st Cir.2001); 2 Admin. Law & Prac. §§ 5.27[7], at 91, 5.64[5](d), at 241. While the courts will not abandon the substantial and material evidence standard of review, they may view the evidence supporting the agency’s findings of fact as less substantial than it would otherwise be had the agency and the hearing officer or administrative judge reached the same conclusion. Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 469, 95 L.Ed. 456 (1951); Dep’t of Health & Mental Hygiene v. Shrieves, 641 A.2d at 906. The courts are particularly inclined to question an agency’s disagreements with a hearing officer or administrative law judge as to credibility determinations. 3 Admin. Law & Prac. § 11.10[3](b), at 741.

An agency should not ignore the findings of fact and credibility determinations contained in an initial order. See Universal Camera Corp. v. NLRB, 340 U.S. at 496, 71 S.Ct. at 468-69; 2 Admin. Law & Prac. 5.28[2], at 94-95. It should give appropriate deference to the hearing officer’s or administrative law judge’s credibility determinations because of their opportunity to observe the demeanor of the witnesses. Dep’t of Health & Mental Hygiene v. Shrieves, 641 A.2d at 906; 3 Admin. Law & Prac. § 12,23[4], at 213. While virtually all fact-finding involves an assessment of credibility in its broadest sense, only demeanor-based credibility determinations are entitled to special deference. Universal Camera Corp. v. NLRB, 340 U.S. at 496, 71 S.Ct. at 469; Drexel Burnham Lambert, Inc. v. Commodity Futures Trading Comm’n, 850 F.2d at 747 n. 7; Dep’t of Health & Mental Hygiene v. Shrieves, 641 A.2d at 907; In re Hopkinton Seh. Dist., 862 A.2d 45, 49 (N.H.2004); Flores v. Employees Retirement Sys. of Texas, 74 S.W.3d 532, 539 (Tex.App.2002).

The significance of the hearing officer’s or administrative judge’s credibility determinations depends largely on the importance of credibility in the particular case. Universal Camera Corp. v. NLRB, 340 U.S. at 496, 71 S.Ct. at 468-69; 2 Admin. Law & Prac. § 5.64[5](d), at 241-42. If credibility is not a central ingredient of the agency’s decision, then the hearing officer’s or administrative judge’s credibility determinations are not very significant. If, however, credibility plays a pivotal role, then the hearing officer’s or administrative judge’s credibility determinations are entitled to substantial deference. Dep’t of Health & Mental Hygiene, 641 A.2d at 907.

The initial order is a relevant and important part of the administrative record. In re Appeal of Dell, 668 A.2d at 1032. While a reviewing court must focus its attention on the agency’s final order, it may consider the initial order when determining whether the agency’s final order has sufficient evidentiary support. See 3 Admin. Law & PRAC. § 11.10[3](a), (b), at 73. If the record contains evidence sufficient to support the conflicting findings of the agency and the hearing officer or the administrative judge, the agency’s findings must be allowed to stand even though the court might have reached a different conclusion on its own. Kopack v. NLRB, 668 F.2d 946, 952 (7th Cir.1982); Dep’t of Health & Mental Hygiene v. Shrieves, 641 A.2d at 908.

IY.

The EvidentiaRY SuppoRT For the Appeals Division’s Order

Ms. McEwen’s principal issue on this appeal is that evidence does not support the Appeals Division’s conclusion that the items of disputed property were subject to forfeiture and confiscation. She argues that the reviewing courts, like the administrative judge, should accredit her testimony regarding how she and Mr. Allen acquired this property. We have determined that the State presented sufficient direct and circumstantial evidence to prove by a preponderance of the evidence that the property claimed by Ms. McEwen had been received in an illegal exchange of a controlled substance or was the proceeds of such an exchange.

A.

The State is seeking to confiscate the personal property claimed by Ms. McEwen pursuant to Tenn.Code Ann. § 53 — 11— 451(a)(6)(A) (1999). Accordingly, the State must prove by a preponderance of the evidence that each seized item of property was either “furnished, or intended to be furnished, in exchange for a controlled substance in violation of the Tennessee Drug Control Act of 1989” or that each item was “proceeds traceable to such an exchange.” TenmCode Ann. § 53-11-451(a)(6)(A). If the State failed to make out a prima facie case, the forfeiture of this property is barred, and the property must be returned immediately. Tenn. Code Ann. § 40-33-210(b)(l).

To carry its burden by a preponderance of the evidence, the State must establish that each item of disputed property, more likely than not, was exchanged or intended to be exchanged in an illegal drug transaction or that each item was traceable to such a transaction. The State may use both direct and circumstantial evidence to carry its burden of proof. Direct and circumstantial evidence is equally relevant, Neil P. Cohen et al., Tennessee Law of Evidence § 4.01[5], at 4-10 (4th ed.2000), and equally probative. See, e.g., State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App.1999); State v. Marsh, 278 Kan. 520, 102 P.3d 445, 450 (Kan.2004); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, 502 (1991); State v. Cherry, 361 S.C. 588, 606 S.E.2d 475, 481 (2004); see also 1A John H. Wigmore, Evidence § 26 (Tillers rev.1983). Accordingly, liti gants may prove any material fact by direct or circumstantial evidence or a combination of both, State v. Phillips, 138 S.W.3d at 230; Brown v. Daly, 83 S.W.3d 153, 160 (Tenn.Ct.App.2001), and in certain situations, circumstantial evidence may be more convincing than direct evidence. United States v. Robinson, 177 F.3d 643, 648 (7th Cir.1999); Estate of Brock ex rel. Yadon v. Rist, 63 S.W.3d 729, 731 (Tenn.Ct.App.2001).

B.

Ms. McEwen’s credibility played a central role in this ease, and it accounts, at least in part, for the differences between the initial order and the final order. This is not a case, however, in which the administrative judge found Ms. McEwen to be completely credible while the Appeals Division did not. In fact, both the administrative judge and the Appeals Division found significant portions of Ms. McEwen’s testimony to be incredible. The administrative judge and the Appeals Division differed as to the credibility of Ms. McEwen’s explanation regarding the acquisition of the gold and silver jewelry, the .22 caliber pistol, the Yamaha scooter, and the 1994 Chevrolet pickup truck.

Ms. McEwen’s credibility is inherently suspect. Her property was confiscated after she was caught selling illegal drugs. She is now seeking to recover as much of her property as she can, and she has every reason to lie and little reason to tell the truth about the acquisition of the property. After observing her demeanor, the administrative judge concluded that much of her testimony was not believable. In light of the lack of specifics in Ms. McEwen’s testimony, her failure to provide documents or other corroboration of her claims, and her other clearly unbelievable testimony, we decline to find that the Appeals Division acted arbitrarily or capriciously when it refused to believe Ms. McEwen’s testimony regarding the acquisition of the currency, the gold and silver jewelry, the .22 caliber pistol, the Yamaha scooter, and the 1994 Chevrolet pickup truck.

We have also concluded that Ms. McEwen’s testimony regarding her and Mr. Allen’s legitimate income is not credible. Their own financial records reveal expenditures far greater than their reported income. Ms. McEwen tried to explain this discrepancy by testifying that she and Mr. Allen were actually earning more income than they reported. However, Ms. McEwen could produce no corroboration for this testimony. In fact, one of her witnesses conceded that she had purposely overstated Ms. McEwen’s income to help her obtain a loan. Thus, instead of establishing that Ms. McEwen and Mr. Allen were using legitimate income to support themselves, their evidence underscores their untruthfulness. The record provides ample basis for a trier-of-fact to conclude that the bulk of Ms. McEwen’s and Mr. Allen’s purchases during late 1997 were not being made with funds that they had legitimately earned.

C.

We now turn to the adequacy of the State’s evidence justifying the confiscation of the property ordered forfeited by the Appeals Division. To succeed, the State’s evidence must prove that each item of property, more likely than not, was either furnished in exchange for an illegal controlled substance or that it was traceable to the illegal exchange of a controlled substance. We have concluded that the State carried its burden of proof with regard to all the seized property at issue on this appeal.

We turn first to the $455 seized from Ms. McEwen and the $1,505 seized from Mr. Allen. These funds were seized shortly after both Ms. McEwen and Mr. Allen had sold illegal drugs, and both Ms. McEwen and Mr. Allen were also possessing illegal drugs when the money was seized. Ms. McEwen herself conceded that half of the $455 was proceeds from the sale of illegal drugs. Because commingling the proceeds from the sale of illegal drugs with legitimate funds subjects the entire amount to forfeiture, United States v. One Single Family Residence, 933 F.2d 976, 982 (11th Cir.1991), the record contains sufficient evidence to support the Appeals Division’s decision to confiscate the $455 seized from Ms. McEwen.

The fact that Mr. Allen possessed both marijuana and $1,505 when he was arrested is not sufficient by itself to establish that the money had been received in exchange for a controlled substance. However, it is relevant and may be considered along with other circumstantial evidence. Lettner v. Plummer, 559 S.W.2d 785, 786 (Tenn.1977). The additional evidence is supplied by the testimony of the State’s undercover officer that he purchased illegal drugs from Mr. Allen the previous day. Mr. Allen himself never explained why he possessed such a large amount of cash, and both the administrative judge and the Appeals Division disbelieved Ms. McEwen’s explanation regarding the source of these funds. Accordingly, the record contains sufficient evidence to support the Appeals Division’s decision to confiscate the $1,505 seized from Mr. Allen.

The State seized large amounts of silver and gold jewelry from a footlocker in Ms. McEwen’s closet. One of the officers testified that jewelry of this sort is frequently used to pay for illegal drugs. Ms. McEwen claimed that the pieces of jewelry were either gifts to her fifteen-year-old daughter or part of her own inheritance. However, she provided few specifics regarding when the jewelry was purchased for her daughter or the circumstances surrounding her inheritance. Even though the administrative judge believed Ms.-McEwen’s testimony about the jewelry, we have already determined that the Appeals Division could appropriately conclude that Ms. McEwen was lying about the jewelry in the same way that she was lying about other property. Accordingly, we have concluded that the State proved that the jewelry had, more likely than not, been used by Ms. McEwen’s and Mr. Allen’s customers to purchase illegal drugs.

When the authorities searched Ms. McEwen’s house, they found a .22 caliber North American Arms revolver in the master bedroom. The weapon contained three live rounds. One of the officers testified that weapons were commonly seized along with illegal drugs because it was a common practice for drug dealers to keep firearms, presumably to enable them to protect the drugs and money earned from the sale of drugs. Ms. McEwen provided little specific information regarding when she purchased the revolver, but she insisted that she purchased it for self-protection because she and her daughter lived alone. She undermined the credibility of this explanation when she admitted that Mr. Allen, her daughter’s father, lived with them sporadically. In light of the fact that Ms. McEwen was a proven drug dealer, the Appeals Division could appropriately conclude that this weapon was subject to forfeiture.

Ms. McEwen claimed that the 1994 Chevrolet pickup truck was purchased on December 1, 1997 for $5,000 in cash. She insists that the State failed to prove by a preponderance of the evidence that proceeds from the sale of illegal drugs were used to purchase this truck. Because the State presented evidence of only eight drug transactions during late 1997 for far less than $5,000, Ms. McEwen asserts that the truck must have been purchased with legitimate income. We have already pointed out that Ms. McEwen’s testimony regarding the extent of her and Mr. Allen’s legitimate income is not believable. In addition, the State is not required to prove which specific illegal transaction provided the funds to purchase a particular item of property. It is sufficient to prove that proceeds of illegal drug sales were the most likely source of the funds used to purchase the seized property. See United States v. Four Parcels of Real Property, 941 F.2d 1428, 1440 (11th Cir.1991); United States v. Thomas, 913 F.2d 1111, 1114 (4th Cir.1990). This record supports a conclusion that Ms. McEwen and Mr. Allen sold illegal drugs on more than eight occasions during late 1997 and that they used the proceeds from these transactions to purchase the truck. Accordingly, we find that the State’s evidence is sufficient to support the Appeals Division’s decision to confiscate the 1994 Chevrolet pickup truck.

Finally, Ms. McEwen insists that she purchased the 1996 Yamaha scooter for her daughter in December 1997 using funds that she had borrowed from the Bank of Goodlettsville. While the record contains evidence that Ms. McEwen borrowed $3,130.00 from the Bank of Good-lettsville on November 19, 1997, it also reveals that she purchased a large screen television nine days later for $3,116.82 in cash. This evidence provides the trier-of-fact with a reasonable basis to disbelieve Ms. McEwen’s testimony regarding the source of the funds used to purchase the scooter. The undisputed evidence that Ms. McEwen and Mr. Allen were selling drugs illegally during this period of time, coupled with the absence of other credible evidence regarding the sources of Ms. McEwen’s legitimate income, provided the Appeals Division with sufficient evidence to conclude that the scooter had been purchased with the proceeds of illegal drug transactions.

V.

Like the trial court, we have concluded that the Appeals Division did not act arbitrarily and capriciously by disagreeing with the administrative judge’s credibility determinations. We have also concluded that the State proved by a preponderance of the evidence that the $1,960 in currency, the various pieces of jewelry, the North American Arms .22 caliber pistol, the 1994 Chevrolet pickup truck, and the 1996 Yamaha scooter seized at the residence of Teresa McEwen on December 5, 1997 were subject to forfeiture under Tenn. Code Ann. § 53 — 11—451(a)(6)(A). Accordingly, we affirm the judgment and remand the case to the trial court for whatever further proceedings may be required. We tax the costs of this appeal to Teresa McEwen and her surety for which execution, if necessary, may issue.

      . The Court of Appeals may affirm a judgment on different grounds than those relied on by the trial court when the trial court reached the correct result. Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn.1986); Arnold v. City of Chattanooga, 19 S.W.3d 779, 789 (Tenn.Ct.App.1999); Allen v. National Bank of Newport, 839 S.W.2d 763, 765 (Tenn.Ct.App.1992); Clark v. Metropolitan Gov’t, 827 S.W.2d 312, 317 (Tenn.Ct.App.1991).

      . Ms. McEwen apparently worked for Ms. Phillips off and on for nine years. According to Ms. Phillips, she paid Ms. McEwen $500 per month for two of those years, but Ms. Phillips, who was "really bad on dates,” could not remember when those years were. Ms. Phillips testified that she loaned Ms. McEwen money to purchase clothes for Ms. McEwen's children. She also stated that she gave valuable gifts to Ms. McEwen, including $3,000 to replace the roof on her house and a pickup truck to replace her old automobile.

      . Agencies may designate others to review initial orders. Tenn.Code Ann. § 4-5-315(a)(2)(C) (Supp.2004). The Commissioner of Safety has designated the Appeals Division as the entity responsible for reviewing initial orders entered in forfeiture cases. Tenn. Comp. R. & Regs. 1340-2-2-.21(l) (2001).

      . The items of gold and silver jewelry included sixteen gold and silver necklaces, two gold bracelets, twenty-seven pairs of gold and silver earrings, and seven gold pendants.

      . On July 5, 2002, Ms. McEwen filed a contempt petition against the Department and the Metropolitan Police Department because the Metropolitan Police Department had not returned the property covered by the April 26, 2002 order. Five days later, the Commissioner directed the Metropolitan Police Department to return the property. On August 8, 2002, the trial court entered an order directing the Metropolitan Police Department to return the property in five business days.

      .Act of April 20, 1994, 1994 Tenn. Pub. Acts 848.

      .The courts continued to use the standard of review in Tenn.Code Ann. § 4 — 5—322(h)(5) for forfeitures occurring before October 1, 1994. See, e.g., Ware v. Greene, 984 S.W.2d 610 (Tenn.Ct.App.1998); Cunningham v. Dep’t of Safety, No. 01A01-9509-CH-00411, 1997 WL 266851, at *1 (Tenn.Ct.App. May 21, 1997) (No Tenn. R.App. P. 11 application filed); Gordon v. Greene, No. 01A01-9511-CH-00522, 1996 WL 346674 (Tenn.Ct.App. June 26, 1996) (No Tenn. R.App. P. 11 application filed); Murphy v. State Dep’t of Safety, No. 01A01-9507-CH-00322, 1996 WL 71916 (Tenn.Ct.App. Feb.21, 1996) (No Tenn. R.App. P. 11 application filed); Young v. State Dep’t of Safety, 911 S.W.2d 729 (Tenn.Ct.App.1995); Kyte v. Tennessee Dep’t of Safety, No. 01A01-9504—CH-00150, 1995 WL 581069 (Tenn.Ct.App. Oct.4, 1995) (No Tenn. R.App. P. 11 application filed).

      . "Substantial and material evidence” consists of such relevant evidence as a reasonable mind might accept as adequate to support a rational conclusion. Substantial and material evidence furnishes a reasonably sound basis for the agency’s decision. Freedom Broadcasting of TN, Inc. v. Tenn. Dep’t of Revenue, 83 S.W.3d 776, 781 (Tenn.Ct.App.2002); Martin v. Sizemore, 78 S.W.3d 249, 276 (Tenn.Ct.App.2001).

      . See Bobbitt v. Shell, 115 S.W.3d 506, 512 (Tenn.Ct.App.2003) (courts must defer to an agency's decision when there is a sound basis for it); Martin v. Sizemore, 78 S.W.3d at 268 (courts customarily defer to adjudicatory determinations made by agencies acting within their area of specialized knowledge, experience, and expertise).

      .The "preponderance of evidence” standard mandated by Tenn.Code Ann. § 40-33-213(a) actually places a heavier burden on the State than does the "substantial and material evidence” standard in Tenn.Code Ann. § 4-5-322. See Ware v. Greene, 984 S.W.2d at 614 (substantial and material evidence is something less than a preponderance of the evidence but greater than a scintilla or glimmer).

      . Act of Mar. 29, 1974, ch. 725, 1974 Tenn. Pub. Acts 945.

      . Act of Apr. 8, 1982, ch. 874, 1982 Tenn. Pub. Acts 606.

      . Several other states have amended, their administrative procedures acts to broaden the decision-making authority of administrative law judges and to increase the effect of their decisions on the agencies' fact-finding. In Montana, an agency may not modify or reject an administrative law judge's findings of fact "unless the agency first determines from a review of the complete record and states with particularity in the order that the findings of fact were not based upon competent substantial evidence....” Mont.Code Ann. §2-4-621(3) (2003). In North Carolina, an agency must now "adopt each finding of fact contained in the administrative law judge’s decision unless the finding is clearly contrary to the preponderance of the admissible evidence, giving due regard to the opportunity of the administrative law judge to evaluate the credibility of witnesses.” N.C. Gen.Stat. § 150B-36(b) (2003); Charles E. Daye, Powers of Administrative Law Judges, Agencies, and Courts: An Analytical and Empirical Assessment, 79 N.C.L.Rev. 1571, 1581-87 (2001). Finally, the Texas Solid Waste Disposal Act provides that the agency may overturn an administrative law judge's findings of fact "only if ... [it is] not supported by the great weight of the evidence.” Texas Health & Safety Code Ann. § 361.0832(c) (2001); F. Scott McCown & Monica Leo, When Can an Agency Change the Findings or Conclusions of an Administrative Law Judge?, 50 Baylor L.Rev. 65, 80-84 (1998) ("McCown & Leo”).

      . This requirement is intended to encourage the agency to consider carefully its reasons for changing the findings of fact in the initial order. See McCown & Leo, 50 Baylor L.Rev. at 89.

      . Compliance with Tenn.Code Ann. § 4-5-314(a) is mandatory. Levy v. State Bd. of Examr's for Speech Pathology & Audiology, 553 S.W.2d 909, 911 (Tenn.1977). The statute requires final orders to include (1) findings of fact, (2) conclusions of law, (3) policy reasons for the decision, (4) an explanation of the procedures for obtaining reconsideration or further administrative review, and (5) a description of the procedures for judicial review.

      . We have already pointed out in Section II that the standard for reviewing the sufficiency of the evidence in forfeiture cases is the "preponderance of the evidence standard” required by Tenn.Code Ann. § 40-33-213(a) rather than the customary "substantial and material evidence” standard found in Tenn. Code Ann. § 4-5-322(h)(5).

      . Tenn.Code Ann. § 40-33-210(a) (2003); Tenn.Code Ann. § 53-U-201(d)(2) (1999).

      . The State is not, and indeed could not, proceed under Tenn.Code Ann. § 39 — 11— 703(a) (2003), which permits the forfeiture and confiscation of property "traceable to the proceeds from" a violation of any statute. That forfeiture proceeding is applicable only to property seized on or after June 27, 1998. State v. A Tract of Land Known as 141 Belle Forest Circle, No. M2000-01827-CCA-R3-CD, 2001 WL 1517028, at *3 (Tenn.Crim.App. Nov.29, 2001) (No Tenn. R.App. P. 11 application filed). The seizure in this case occurred on December 5, 1997.

      . Proving an allegation by a preponderance of the evidence requires a litigant to convince the trier-of-fact that the allegation is more likely true than not true. Austin v. City of Memphis, 684 S.W.2d 624, 634-35 (Tenn.Ct.App.1984). A party has proven an allegation by a preponderance of the evidence when the aggregate weight of the evidence demonstrates that the allegation is more probably true than any other factual alternative. See Rawlings v. John Hancock Mut. Life Ins. Co., 78 S.W.3d 291, 296 (Tenn.Ct.App.2001).

      . Direct evidence is evidence which, if believed, establishes the main fact at issue without inference or presumption. State v. Phillips, 138 S.W.3d 224, 231 (Tenn.Ct.App.2003).

      . Circumstantial evidence is evidence of collateral facts and circumstances from which the trier-of-fact may infer that the main fact at issue is based on reason and common experience. State v. Phillips, 138 S.W.3d at 231.

      . Even the administrative judge disbelieved Ms. McEwen's testimony regarding (1) the acquisition of the drugs that she and Mr. Allen were selling illegally, (2) the source of the $455 found in her possession, and (3) the source of the $1,505 seized from Mr. Allen. The administrative judge also noted that Ms. McEwen had lied to the Department of Human Services and the Internal Revenue Service and that she had used a false address to avoid being required to register the Yamaha scooter when she purchased it.

      . Ms. McEwen claimed that Mr. Allen had sold a truck to her employer for $1,500.

        However, her employer did not corroborate this story when she testified, and Ms. McEwen did not produce any documents, such as a bill of sale or title, to corroborate her testimony.


author: BOB McCOY, Justice.

text:
    Eric Paul MICHAEL, Appellant, v. The STATE of Texas, State.
    No. 2-04-207-CR.
    Court of Appeals of Texas, Fort Worth.
    July 14, 2005.
    Rehearing Overruled Aug. 18, 2005.
    Adam L. Seidel, Dallas, for Appellant.
    Tim Curry, Criminal District Atty., Charles M. Mallín, Asst. Criminal District Atty. and Chief of Appellate Section, James E. Cook, Lisa Callaghan, and Shannon Estrada, Asst. Criminal District Atty., Fort Worth, for Appellee.
    Panel B: HOLMAN, GARDNER, and McCOY, JJ.
   MEMORANDUM OPINION

BOB McCOY, Justice.

I.Introduction

Appellant, Eric Paul Michael (“Michael”), appeals from his convictions for aggravated sexual assault and indecency with a child. In his sole point on appeal, Michael contends that the trial court abused its discretion when it allowed the State to bolster the credibility of its essential witness. We affirm.

II.Background Facts and Procedural History

At the time of the alleged incident, the complainant, H.R., was spending the night in Michael’s home as a guest of his two daughters. H.R. and Michael’s two daughters slept in a small guestroom on a pallet of sleeping bags. H.R. testified that she awoke at 1:00 a.m. to find Michael kneeling beside her and “touching himself.” She testified that he was not wearing a shirt and that his shorts were pulled down. She indicated that she had been sleeping on her right side but that Michael had rolled her over onto her back. She stated that he then moved to her feet, pulled down her shorts, and began licking her “vagina” [sic]. She testified that after five or ten minutes he stopped, pulled up her shorts, said “thank-you,” and left the room.

H.R. did not tell anyone of this incident until several months later, when after watching an episode of “The Practice” she told her mother. The next day, H.R.’s mother called Child Protective Services and took her daughter to the Grapevine police department where they filed a report. H.R. then gave a videotaped interview. During cross-examination of H.R., Michael’s defense counsel brought out discrepancies between H.R.’s testimony at trial and the videotaped interview. In rebuttal, the State called H.R.’s foimer second grade teacher to offer testimony as to H.R.’s character for truthfulness. Michael’s defense counsel objected to this testimony on the grounds that H.R.’s character or credibility had not been attacked and that any testimony regarding her character for truthfulness would be improper “bolstering.” The trial court overruled the objection and allowed the testimony of H.R.’s second grade teacher.

III.Evidence of Truthful Character

In his sole point on appeal, Michael argues that the trial court abused its discretion by allowing the State to bolster H.R.’s credibility through opinion testimony that H.R. had good character for truth when H.R.’s credibility had not been attacked through opinion testimony or otherwise. The State responds that the testimony regarding H.R.’s good character for truthfulness was admissible because it was relevant and because Michael had attacked her character for truthfulness within the meaning of Texas Rule of Evidence 608(a)(2). See Tex.R. Evid. 608(a)(2).

A. Standard of Review

We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App.2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse. Montgomery, 810 S.W.2d at 391. We will not reverse a trial courts ruling on the admission of evidence as long as the ruling is within the zone of reasonable disagreement. Id.

B. Analysis

Rule 608(a) of the Texas Rules of Evidence provides for the impeachment and rehabilitation of a witness’s credibility. Rule 608(a) provides that:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness, and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Tex.R. Evid. 608(a) (emphasis added).

During direct examination, H.R. testified that Michael had rolled her over onto her back and that she had been lying on her right side prior to the incident. During cross-examination of H.R., Michael’s defense counsel brought out discrepancies between H.R.’s testimony at trial and her videotaped interview. In particular, it was brought out on cross-examination that contrary to her direct testimony, H.R. stated in her videotaped interview that she was lying on her left side during the entire ordeal and that she did not say anything in her videotaped interview about being rolled over.

The State points to the following part of H.R.’s cross-examination as supporting its position that H.R’s character for truthfulness was attacked by Michael:

[Defense Counsel]: Okay. Do you remember after you told your mom that you went and spoke with a lady about what had happened to you?
[H.R.]: Yes, ma’am.
[Defense Counsel] Okay. And do you remember her telling you before you started talking about this that there was a camera in the room?
[H.R.] Yes, ma’am.
[Defense Counsel]: Okay. And she told you that she was taping—
[H.R.]: Yes.
[Defense Counsel]: — the interview, right?
[H.R.]: Yes, ma’am.
[Defense Counsel]: Okay. And do you remember her talking about how important it was to tell the truth?
[H.R.]: Yes, ma’am.
[Defense Counsel]: And, in fact, she even asked you about — she even gave examples?
[H.R.]: Yes.
[Defense Counsel]: Okay. What — what would be a truth and what would be a lie?
[H.R.]: Yes.
[Defense Counsel]: Do you remember what you told her?
[H.RJ: Yes ma’am.
[Defense Counsel]: Okay. When you were talking to her, did you tell her that you were laying on your left side and that [A.M.] and [J.M.] were on either side of you?
[H.R.]: Yes, ma'am.
[Defense Counsel]: Okay. In fact, she had some little dolls,—
[H.R.]: Yes, ma’am.
[Defense Counsel]: — right? She had a female doll and a male doll?
[H.RJ: Yes, ma’am.
[Defense Counsel]: Okay. And she gave you the female doll and asked you to show her how you were laying?
[H.R.]: Yes, ma’am.
[Defense Counsel]: And you laid the doll on your left — on its left side?
[H.R.]: Yes.
[Defense Counsel]: Okay. And you — you never said anything to her about being rolled over or anything else, did you? [H.R.]: I don’t think so, no.
[Defense Counsel]: And y’all’s feet were down toward the—
[H.R.]: T
[Defense Counsel]: TV hutch. Okay. And do you recall telling the — -the—the lady that you spoke with that you — you had — you never moved off your left side?
[H.R.]: Yes, ma’am.
[Defense Counsel]: Okay. And now, were you — were you on your side when all this was going on?
[H.R.]: I think he had rolled me onto my back.
[Defense Counsel]: Okay. But you didn’t say that when you were talking to the lady?
[H.R.]: Right.
[Defense Counsel]: Okay. In fact, the lady asked you that question a couple of times, right?
[H.R.]: I think so.
[Defense Counsel]: Okay. And all — and every time you told her that, you stayed on your left side?
[H.R.]: Okay. Yes, ma’am.
[Defense Counsel]: Okay. Now, when you’re describing everything that has occurred to you, do you remember— when you talked to the — the investigator who did the tape—
[H.R.]: Yes.
[Defense Counsel]: — the lady there at CPS, okay, do you recall her asking you what Mr. Michael’s penis looked like?
[H.R.]: Yes, ma’am.
[Defense Counsel]: Okay. Do you remember what you told her?
[H.R.]: Yes, ma’am.
[Defense Counsel]: Okay. What was that?
[H.R.]: I just told her it was sticking out like-she asked me if it was sticking up or down or anything like that. I just told her it was sticking out.
[Defense Counsel]: Okay. She asked you two questions. The first question was what it looked like. Do you recall telling her it looked normal?
[H.R.]: Yes.
[Defense Counsel]: Okay. Are you sure that you told her that it was sticking out?
[H.R.]: I think I told her it was sticking down.
[Defense Counsel]: That it was hanging down?
[H.R.]: Yes.
[Defense Counsel]: Okay. So your statement a minute ago that it was sticking out was incorrect?
[H.R.]: Yes, ma’am.
[Defense Counsel]: Okay. And she asked you — do you remember her asking you the question about, well, how did this happen if your legs were here or here? Do you recall that?
[H.R.]: Yes, ma’am.
[Defense Counsel]: Okay. And do you recall telling her that you — you weren’t sure—
[H.R.]: Yes.
[Defense Counsel]: — how that happened?
[H.R.]: Yes.
[Defense Counsel]: Because of the position that you were in?
[H.R.]: Yes.
[Defense Counsel]: Okay. And you weren’t sure?
[H.R.]: Yes.
[Defense Counsel]: Okay. And — and you again stated that you still didn’t see how he could have done what he did because the room was so small?
[H.R.]: Yes.
[Defense Counsel]: And you were on your left side?
[H.R.]: Right.

The State argues the Michael’s cross-examination of H.R. by use of prior inconsistent statements aimed at impeaching her testimony amounted to an attack on H.R.’s character for truthfulness under the “otherwise” provision of Rule 608(a)(2), opening the door for rebuttal evidence as to H.R.’s character for truthfulness. Michael, on the other hand, argues that his questioning of H.R. was nothing more than a thorough cross-examination, not an attack on H.R.’s character for truthfulness. We agree with the State.

Rule 608(a) conditions the admissibility of evidence of a witness’s good character for truthfulness to situations where the character of the witness for truthfulness has been attacked. Tex.R. Evid. 608(a); see Moore v. State, 143 S.W.3d 305, 324-25 (Tex.App.-Waco 2004, pet. ref'd) (Gray, C.J., concurring and dissenting) (stating that to be “admissible to rehabilitate an impeached witness’s credibility, the method of impeachment must have attacked the witness’s character for truthfulness, not just the witness’s testimony”).

Evidence of a witness’s character for truthfulness is not admissible simply because evidence has been admitted conflicting with the witness’s testimony. See Wallace v. State, 501 S.W.2d 883, 886 (Tex.Crim.App.1973). Nor is evidence of a witness’s character for truthfulness admissible simply because the witness has been subjected to a vigorous cross-examination. Moore, 143 S.W.3d at 315. However, Texas courts have historically treated the impeachment of a witness by prior inconsistent statements as an attack on the witness’s veracity character permitting evidence of good character for truth and veracity in rebuttal. See O’Bryan v. State, 591 S.W.2d 464, 476 (Tex.Crim.App.1979) (quoting 1 McCoRmick and Ray, Texas Law of Evidence § 772 (2d ed.1956)). Thus, where a witness is placed in the position of testifying differently from that which she previously testified, i.e., where the witness is impeached by prior inconsistent statements, evidence of a witness’s veracity character is admissible in rebuttal. See Duckett v. State, 797 S.W.2d 906, 918 (Tex.Crim.App.1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817, 819 (Tex.Crim.App.1998); O’Bryan, 591 S.W.2d at 476; Adams v. State, 514 S.W.2d 262, 264 (Tex.Crim.App.1974) (citing Acker v. State, 421 S.W.2d 898, 401 (Tex.Crim.App.1967)); see also Foggle v. State, 632 S.W.2d 402, 405 (Tex.App.-Forth Worth, no pet.) (citing Wallace v. State, 501 S.W.2d 883, 886 (Tex.Crim.App.1993) (indicating that unless the State attempts to prove a defendant’s good or bad reputation for veracity, or shows contradictory statements of the defendant, defendant may not prove his reputation for truth or veracity)).

Here, H.R. was placed in a position of having testified differently than her previous statements in the videotaped interview. This discrepancy is material because in her videotaped interview H.R. admitted that she could not explain how the alleged incident could have happened while she was lying on her left side. Further, just prior to confronting H.R. with her prior inconsistent statements, Michael’s defense counsel asked H.R. if she remembered the interviewer discussing with her the importance of telling the truth and providing examples of what would be the truth and what would be a lie. Thus, after reviewing the testimony, we cannot say that the trial court abused its discretion in allowing the objected-to testimony regarding H.R.’s character for truthfulness because the trial court could have reasonably determined that Michael’s cross-examination of H.R. was an attack on her character for truthfulness, opening the door to rehabilitative character testimony pursuant to Rule 608(a). We overrule Michael’s sole point.

IV. Conclusion

Having overruled Michael’s sole issue, we affirm the trial court’s judgment.

      . See Tex.R.App. P. 47.4.

      . H.R. testified during direct examination that she had been sleeping on her right side.

      . H.R. testified during direct examination that Michael had rolled her over.


author: JOHN S. ANDERSON, Justice.

text:
    THE REACH GROUP, L.L.C., Appellant, v. THE ANGELINA GROUP, Scott Ratchinsky, and Autie McVicker, Appellees.
    No. 14-04-00911-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 18, 2005.

      Joanne M. Yorpahl, Houston, for appellant.
    Kenneth D. Hughes, Houston, for appel-lees.
    Panel consists of Justices YATES, ANDERSON, and HUDSON.
   OPINION

JOHN S. ANDERSON, Justice.

This is an accelerated appeal from the partial denial of The Reach Group, L.L.C.’s (“TRG”) request for a temporary injunction enjoining appellees, two foimer employees and the company they formed, from soliciting certain clients in violation of their employment agreements. On appeal, TRG argues (1) the covenants not to compete/non-solicitation provisions contained in the employment agreements are en-foreeable under Texas law, and (2) the trial court abused its discretion in refusing to grant a temporary injunction against ap-pellees and in favor of TRG despite undisputed evidence establishing breaches of the covenants. We affirm.

Factual and ProceduRal Background

TRG is a consulting firm in the business of performance management consulting for the international subsea oil and gas industry. TRG provides a variety of specialized services, including “technical limits” in the context of drilling operations, knowledge management, learning organization, supervisory development, performance enhancement, and facilitation.

Appellees Scott Ratchinsky and Autie McVicker are former employees of TRG. Ratchinsky was hired as a consultant for TRG in March 2000 and was involved with several significant projects for TRG. He became a project manager in December 2002. McVicker was hired by TRG in May 2002, and, as a project manager, he worked on projects for British Petroleum (“BP”), one of TRG’s biggest clients.

After Ratchinsky and McVicker had been working for TRG, they signed Employment Agreements (“agreements”) with TRG. These agreements contained covenants not to compete and non-disclosure agreements. Ratchinsky’s agreement also contained a non-recruitment clause.

On June 1, 2004, Ratchinsky resigned from TRG, and McVicker resigned a day later. On July 20, 2004, one of TRG’s clients, Transocean, notified TRG that it was hiring The Angelina Group, L.L.C. (“Angelina”) for a project TRG had been pursuing. TRG subsequently learned Ratchinsky and McVicker had formed Angelina while employed by TRG.

Three days after Transocean notified TRG the project was going to Angelina, TRG filed this lawsuit against Ratchinsky, McVicker, and Angelina, alleging breach of contract, conversion, and tortious interference, and requesting temporary and permanent injunctive relief enjoining Ratchin-sky and McVicker from soliciting certain TRG clients in violation of their employment agreements. The trial court entered a temporary restraining order against ap-pellees.

On August 6, 2004, a hearing was held on TRG’s application for temporary injunction, and a second hearing was held on August 12, 2004, in response to TRG’s emergency motion to reopen the temporary injunction hearing. On August 24, 2004, the trial court granted in part and denied in part TRG’s request for injunctive relief as follows:

After reviewing [TRG’s] Application for Temporary Injunction, [Appellees’] Response, the arguments of counsel and evidence, the Court is of the opinion that [TRG’s] Application for Temporary Injunction should be GRANTED IN PART AND DENIED IN PART. It is therefore,
ORDERED that [Angelina, Ratchin-sky, and McVicker] are required to deliver to counsel for [TRG] all documents that were obtained from [TRG], including databases and copyrighted materials, on or before August 80, 2004.
IT IS FURTHER ORDERED that [TRG]’s Application for Temporary Injunction is DENIED. IT IS FURTHER ORDERED that the Temporary Restraining Order against [Appellees] is dissolved.

TRG files this interlocutory appeal from the denial of its request for a temporary injunction. See Tex. Crv. PRAC. & Rem.Code Ann. § 51.014(a)(4) (Vernon Supp.2005). Appellees do not appeal the trial court’s order requiring them to turn over all TRG documents.

TRG’s Request for Injunctive Relief

In two issues, TRG argues (1) the provisions in Ratchinsky’s and McVicker’s agreements are enforceable because they meet the tests imposed by statute and common law; and (2) the trial court abused its discretion in denying TRG’s requested injunctive relief. Specifically, TRG asserts Ratchinsky and McVicker are bound by covenants not to solicit certain clients and prospective clients of TRG and covenants prohibiting the use or disclosure of TRG’s confidential information. TRG claims Ratchinsky and McVicker violated their agreements with TRG by soliciting Transocean and BP, TRG’s clients, for the benefit of Angelina.

Ratchinsky and McVicker argue the covenants not to compete are unenforceable because (1) McVicker and Ratchinsky were at-will employees; (2) TRG did not give appellees confidential information and there is no evidence confidential information was used; (3) TRG has an adequate remedy at law; (4) TRG’s judicial admissions in a prior lawsuit directly contradict its claims in this suit; and (5) the covenants not to compete are overly broad.

A. Scope and Standard of Review

Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002); Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 884 (TexApp.-Dallas 2003, no pet.). A reviewing court must not substitute its judgment for the trial court’s judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru, 84 S.W.3d at 204; Tom James of Dallas, Inc., 109 S.W.3d at 883.

“A temporary injunction’s purpose is to preserve the status quo of the litigation’s subject matter pending a trial on the merits.” Butnaru, 84 S.W.3d at 204. To obtain a temporary injunction, an applicant must plead and prove a cause of action against the defendant, a probable right to the relief sought, and a probable, imminent, and irreparable injury in the interim. Id.; Tom James of Dallas, Inc., 109 S.W.3d at 884. At a temporary injunction hearing, the ultimate merits of the case are not before the trial court. Tom James of Dallas, Inc., 109 S.W.3d at 884.

When a consideration of the evidence is required, we view it in the light most favorable to the trial court’s order, indulging every reasonable inference in its favor. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 696 (Tex.App.-Houston [14th Dist.] 2004, no pet.). When, as here, the trial court does not make findings of fact or conclusions of law, we must uphold the court’s order on any legal theory supported by the record. Id.

B. Irreparable Injury

In the contest of a covenant not to compete, a covenant will not be enforced by an injunction where the party seeking the injunction has failed to show that without injunctive relief he will suffer irreparable injury for which he has no adequate legal remedy. Tom James Co. v. Mendrop, 819 S.W.2d 251, 253 (Tex.App.-Fort Worth 1991, no writ). Courts generally will not enforce contractual rights by injunction, because a party can rarely establish an irreparable injury and an inadequate legal remedy when damages for breach of contract are available. Butnaru, 84 S.W.3d at 211. “An injury is irreparable if the injured party cannot be adequately compensated in damages or if the damages cannot be measured by any certain pecuniary standard.” Butnaru, 84 S.W.3d at 204; see Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 235 (Tex.App.-Houston [1st Dist.] 2003, no pet.)(quoting Butnaru, 84 S.W.3d at 204); Mendrop, 819 S.W.2d at 253 (“An injunction will not issue if damages are sufficient to compensate the plaintiff for any wrong committed by the defendant and if the damages are subject to measurement by an ascertainable pecuniary standard.”). The party requesting the injunction has the burden to establish that there is no adequate remedy at law for damages. Cardinal Health, 106 S.W.3d at 235. An adequate remedy at law is one that is as complete, practical, and efficient to the prompt administration of justice as is equitable relief. Id.

Appellees argue the denial of the injunction was proper because TRG has an adequate remedy at law. We agree. At the temporary injunction hearing, David Massey, managing director of TRG, testified that the amount of damages TRG would incur for lost revenues from the Transocean project was capable of being measured and totaled approximately $115,000.00. Massey also testified he could calculate additional damages TRG might incur based on the potential for TRG’s work with Transocean being extended for a period of two years. Moreover, Ratchinsky testified Angelina does not have a contract with Transocean. Additionally, Massey admitted any potential damages that might result from Angelina competing for BP business are also capable of being calculated. Defense counsel asked Massey whether he “can spell [the damages] out. They are not pie in the sky. You are not speculating. You have a way to calculate those numbers, right?”; Massey replied, “Yes.” Massey’s testimony clearly established that any damages resulting from appellees taking Transocean’s or BP’s business away from TRG were capable of precise measurement. Massey further testified that if appellees are allowed to continue to solicit TRG’s past, current, and potential clients, TRG could be put at “great risk.” This latter testimony, however, “established only a fear of possible injury,” and such a contingency “is not sufficient to support issuance of a temporary injunction.” See EMSL Analytical, Inc., 154 S.W.3d at 697.

Viewing the evidence in the light most favorable to the trial court’s order, we hold TRG has failed to establish it faced probable, imminent, and irreparable injury in the absence of a temporary injunction. Thus, the trial court did not abuse its discretion in denying TRG’s request for a temporary injunction, and we overrule issue two. We do not address TRG’s first issue; the validity or invalidity of TRG’s agreements with Ratchinsky and McVicker will be determined at a trial on the merits, as will computation of damages, if any, awarded to TRG. See Mendrop, 819 S.W.2d at 253-54.

Conclusion

The judgment of the trial court is affirmed.

      . The effective date of McVicker's agreement is May 20, 2002; the effective date of Ratchin-sky's agreement is January 1, 2003.

      . A few days after the August 6, 2004 hearing, TRG learned Ratchinsky had sought unauthorized access to one of TRG’s databases for use with Angelina’s work for Transocean. Ratch-insky never accessed the database.

      . Thus, in deciding this appeal from the denial of a temporary injunction, we do not reach the ultimate issue of whether the provisions in the agreements are enforceable under Texas law. See Tom James of Dallas, Inc., 109 S.W.3d at 884-85.


author: TERRIE LIVINGSTON, Justice.

text:
    Orric FREEMAN and Carole Freeman, Appellants, v. TOWN OF FLOWER MOUND, Texas, Appellee.
    No. 2-05-030-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 29, 2005.
    Hughes & Luce, L.L.P., James Hunter Birch, Dwight A. Shupe, Matthew R. Miller, Dallas, for appellants.
    Brown & Hofmeister, L.L.P., Mark E. Goldstucker, Terrence S. Welch, Robert F. Brown, Richardson, for appellee.
    PANEL B: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This case involves the interpretation of section 43.141(a) of the Texas Local Government Code. Tex. Loc. Gov’t Code Ann. § 43.141(a) (Vernon Supp.2004r-05). In one issue, Orric and Carole Freeman contend that the trial court erred in holding that they were not permitted to seek dis-annexation of their property from the Town of Flower Mound because they did not seek to disannex the entire area originally annexed by the Town and because they were not joined by a majority of voters in the entire originally annexed area. We affirm.

Background Facts

Over the property owners’ objection, the Town annexed approximately 5,044 acres of land on September 9, 1999. In July 2004, the Freemans filed a petition to disannex approximately 1,200 acres within the annexed area (the Affected Area) on the ground that the Town had faded to provide services to the Affected Area. The Town took no action on the petition, and the Freemans filed suit in September 2004. The Town filed an answer and a plea to the jurisdiction, contending, among other things, that section 43.141 does not allow for a partial disannexation; in other words, a majority of voters of the entire area originally annexed must petition for disan-nexation. Thus, the Town contended that the Freemans did not have standing to maintain a disannexation suit. The trial court granted the Town’s plea to the jurisdiction, “based on the finding that partial disannexation is not authorized by [section] 43.141.”

Analysis

The question we must answer in this case is one of simple statutory construction. When a statute is clear and unambiguous, we “should give the statute its common meaning” and seek the intent of the legislature as found in the plain and common meaning of the words and terms used. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997); In re K.L.V., 109 S.W.3d 61, 65 (Tex.App.-Fort Worth 2003, pet. denied). We do not need to resort to rules of construction or extrinsic aids to construe a statute that is clear and unambiguous. St. Luke’s Episcopal Hosp., 952 S.W.2d at 505; Cail v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983). We should not adopt a construction that would render a law or provision meaningless or absurd. Centurion Planning Corp. v. Seabrook Venture II, No. 01-02-00518-CV, 2004 WL 2823125, at *3, 176 S.W.3d 498, at 504 (Tex.App.-Houston [1st Dist.] Dec. 9, 2004, no pet.).

Section 43.141(a) provides that “[a] majority of the qualified voters of an annexed area may petition the governing body of the municipality to disannex the area if the municipality fails or refuses to provide services or to cause services to be provided to the area within the [statutorily prescribed] period.” Tex. Local Gov’t Code Ann. § 43.141(a). Here, the dispute is over the meaning of the phrase “an annexed area.” The Freemans contend that the legislature’s use of the article “an” shows an intent “that the area seeking disannexation need not be the exact area originally annexed.” The Town argues that the use of the word “an” in the statute “is simply an acknowledgement that, over a period of years, a municipality might make a number of separate annexations through separate annexation ordinances.”

The Eastland Court of Appeals has recently addressed this issue, holding that “[t]he more reasonable construction of Section 43.141(a) is that ‘[a] majority of the qualified voters of an annexed area’ means a majority of the qualified voters of the [entire area] that was previously annexed.” Smith v. City of Brownwood, 161 S.W.3d 675, 680 (Tex.App.-Eastland 2005, no pet.). In that case, the appellants relied on the same reasoning as the Freemans do in this case: that the legislature’s use of the indefinite article “an” indicates an intention that landowners in only a part of an originally annexed area could sue for disannex-ation under section 43.141. Id. at 678.

In its analysis of the statutory provision, the Eastland court noted that the term “an annexed area” must be read in context with the last part of the sentence in section 43.141(a), which states that the disannexation remedy is available “if the municipality fails or refuses to provide services or to cause services to be provided to the area within the period specified by Section 43.056 or by the service plan prepared for the area under that section.” Tex. Local Gov’t Code Ann. § 43.141(a) (emphasis added); Smith, 161 S.W.3d at 679. The court noted that the service plan in that case had been prepared for the entire originally annexed area as a whole, not just the part that the appellants were seeking to disannex. Smith, 161 S.W.3d at 679. Here, the Town’s service plan was prepared for the entire 5,044 acres, not just the property the Freemans sought to disannex.

We agree with the Eastland court’s well-reasoned opinion and hold that section 43.141(a) provides that only a majority of voters within an entire annexed area may petition for disannexation for a municipality’s failure to provide services. Accordingly, the trial court did not err in its interpretation of the statute and in concluding that the Freemans did not have standing to bring the suit. Therefore, the trial court’s granting of the Town’s plea to the jurisdiction was proper. See Bland ISD v. Blue, 34 S.W.3d 547, 553-54 (Tex.2000) (holding that the absence of standing may be raised in a plea to the jurisdiction). We overrule the Freemans’ sole issue.

Conclusion

Having overruled the Freemans’ sole issue, we affirm the trial court’s judgment.

      . The record shows that the Town has not provided water and wastewater services to the Affected Area. It does not show whether services have been provided to any other part of the originally annexed area. The service plan attached to the annexation ordinance provided for water and wastewater services to be provided to the annexed area in accordance with Town Ordinance No. 25-78 and "when requested by individual owners, residents, or developers subject to rules and regulations promulgated by the ... (TNRCC) and subject to existing certificates of convenience and necessity.” In a June 7, 2004 letter to the Freemans, the Town contended that it was not required to provide water and wastewater services to the Freemans’ property under either the local government code or the service plan.

      . This holding relates solely to a petition brought under section 43.141(a) and does not exclude or limit other rights similarly aggrieved landowners might have under the local government code, such as seeking relief by mandamus under section 43.056(Z) — formerly section 43.056(i) at the time the Affected Area was annexed — or by a quo warranto proceeding. See Smith, 161 S.W.3d at 679-80; see also Alexander Oil Co. v. Seguin, 825 S.W.2d 434, 436 (Tex.1991) (stating rule that only proper method of attacking annexation is by quo warranto unless annexation is wholly void); City of Wichita Falls v. Pearce, 33 S.W.3d 415, 417 (Tex.App.-Fort Worth 2000, no pet.) ("Absent specific legislative authorization, the only proper method for attacking the validity of a city's annexation of territory is through a quo warranto proceeding, unless the annexation is wholly void.”).


author: Opinion by Justice ROSS.

text:
    Dana HARVEY, Appellant v. The STATE of Texas, Appellee.
    No. 06-04-00095-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted June 27, 2005.
    Decided Sept. 7, 2005.

      Don Cooksey, Law Office of Don Cook-sey, Texarkana, for appellant.
    Michael Shepherd, Assistant District Attorney, Texarkana, for appellee.
    Before MORRISS, C.J., ROSS and CORNELIUS, JJ.

       William J. Cornelius, C.J., Retired, Sitting by Assignment

   OPINION

Opinion by Justice ROSS.

Dana Harvey was convicted by a jury for the felony offense of driving while intoxicated. Punishment was assessed by the court at five years’ imprisonment. Harvey was duly sentenced, after which the court ordered that, after 100 days’ imprisonment, Harvey be brought back before the court to be considered for community supervision.

Harvey raises seven points of error, which he has consolidated into five arguments. Because he failed to adequately brief it, we will not address his complaint about the trial court denying his request to have all witnesses enter the courtroom from the same door. We overrule his other points and affirm the judgment.

FAILURE TO BRIEF ISSUE PRECLUDES REVIEW

Harvey’s second point of error claims the trial court erred when it denied his motion for the State’s witnesses not to be allowed to enter the courtroom through a back door, when defense witnesses entered through a different door. Harvey contends such practice unfairly bolstered the credibility of the State’s witnesses.

Harvey provides no legal authority in support of this contention. A point of error that is conclusory and cites no authority presents nothing for review. Garcia v. State, 887 S.W.2d 862, 871 (Tex.Crim.App.1994); Pierce v. State, 777 S.W.2d 399, 418 (Tex.Crim.App.1989); Burns v. State, 923 S.W.2d 233, 237 (Tex.App.-Houston [14th Dist.] 1996, pet. ref'd). We find this point of error to be inadequately briefed and decline to address it. See Tex.R.App. P. 38.1(h); Vuong v. State, 830 S.W.2d 929, 940 (Tex.Crim.App.1992).

RIGHT TO SPEEDY TRIAL NOT VIOLATED

Harvey complains the trial court erred at the pretrial hearing 1) in denying his motion to dismiss, based on denial of a speedy trial; and 2) in precluding him from questioning the prosecutor at that hearing. Although almost four years passed between Harvey’s arrest and conviction, we hold that he suffered no constitutional deprivation.

Proceedings Relevant to Speedy Trial Issue

Harvey was arrested November 3, 2000. An indictment was returned against him February 22, 2001. Harvey testified at the pretrial hearing he had difficulty remembering events surrounding his arrest. He contended this loss of memory was prejudicial to his rights. He also testified he could no longer find a witness whose testimony he believed would be important.

Harvey retained Rick Shumaker as his attorney around April 2, 2001. Shumaker testified at the pretrial hearing that several continuances were obtained between the date of his retention and February 2004, when he withdrew — at Harvey’s request— as Harvey’s attorney.

At the pretrial hearing, the court conducted an in camera inspection of the front of the State’s file. A photocopy of what the court inspected was attached to the appellate record as a sealed exhibit. The relevant entries on that exhibit are as follows:

• 4-2-01 P/T 5-14-01
• 5-14-01 Reset P/T 6-11-01
• 6-11-01 Reset P/T [entry scratched out] 8-20-01
• 8-20-01 Trial [entry scratched out] 12/10/01 Reset l-22-01[sic] (Order PSI) Set Plea 2-4-02 per ...
• 2-4-02 Reset Plea 3-18-02
• 3-18-02 Reset Plea [entry scratched out] 4-15-02
• 4-15-02 Reset Plea [entry scratched out] 5-13-02
• 5-13-02 RSAG no (in Rehab) Reset 6-24-02
• 12-10-03 Reset Plea l-5-03[sic]
• 1-5-04 Reset Plea 2-2-04
• 2-2-04 Reset Plea in Absentia 3-15-04
• 3-15-04 Set Trial 4-12-04
• 4-12-04 Set for trial Jury Selection 4-15-04/9:00 New Boston

Shumaker’s testimony at the pretrial hearing corroborates the entries and the dates shown on the State’s file folder. He testified some of the continuances obtained during his representation of Harvey were due to Harvey “going through ... some things,” which included a twenty-eight-day stay at a residential treatment center where Harvey was treated for alcoholism. Shumaker said that, at one point during the delay in bringing Harvey to trial, about one and a half years passed -without receiving any contact from the trial court about the case being set for trial. The front of the State’s file folder confirms there was a gap of inactivity from May 13, 2002 to December 10, 2003. Shumaker said he was always able to reach an agreement with the State about resetting the case. He confirmed the note on the front of the State’s file that a presentence investigation (PSI) report was ordered August 20, 2001, and that the case was set for a plea to occur in February 2002, but was postponed to March 2002. From August 2001 to February 2004, it appears the parties anticipated the case would be resolved by a plea agreement. However, Harvey failed to appear at a scheduled hearing in May 2002, apparently because he was in the rehabilitation center. Although the trial court forfeited Harvey’s bond because of this failure to appear, Shumaker was successful in persuading the State to ask the trial court to rescind the bond forfeiture, which request the trial court granted. Shumaker confirmed at the pretrial hearing that he had agreed to inform the State when Harvey had completed his rehabilitation so the case could again be set for disposition. Shumaker was uncertain as to whether he ever did this, and stated that his last recollection on the case was a setting in late 2003 or early 2004.

In early 2004, Harvey retained Don Co-oksey as his new counsel. On February 2, 2004, Harvey filed several motions, including various requests for discovery, for applicable notices, for the withdrawal of Shu-maker as his attorney, and for dismissal, alleging a violation of Harvey’s right to a speedy trial.

Speedy Trial Analysis

In determining whether an accused has been denied his or her right to a speedy trial, a court must use a balancing test “in which the conduct of both the prosecution and the defendant are weighed.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be weighed in the balance include, but are not necessarily limited to, the length of the delay, the reason for the delay, the defendant’s assertion of his or her speedy trial right, and the prejudice to the defendant resulting from the delay. Id. No single factor is necessary or sufficient to establish a violation of the right to a speedy trial. Id. at 533, 92 S.Ct. 2182; Dragoo v. State, 96 S.W.3d 308, 313 (Tex.Crim.App.2003). If a violation of the speedy trial right is established, the only possible remedy is dismissal of the prosecution. Strunk v. United States, 412 U.S. 434, 440, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973).

Almost three and one half years passed between Harvey’s arrest and his trial. There was evidence some continuances had been obtained either at Harvey’s request or with his approval. There was also evidence the parties contemplated entering a plea agreement. While the length of the delay is enough to justify concern, the reasons for delay suggest Harvey either acquiesced in repeated postponements of the case, or did not object to such delays. He obviously did not assert his right to a speedy trial until about three years and three months after his arrest. He was tried less than three months after filing his motion for dismissal.

The possibility of ongoing plea negotiations was a consideration in the Texas Court of Criminal Appeals’ recent analysis of a speedy trial claim. Kelly v. State, 163 S.W.3d 722, 727 (Tex.Crim.App.2005). In stressing the deference an appellate court must give to a trial court’s findings, the court stated a trial court may infer the existence of plea negotiations, even in the absence of direct evidence of the same. Id. Accordingly, when analyzing the reasons for the delay in bringing Harvey to trial, we consider, as the trial court likely did, the evidence of plea negotiations. Based on the significant evidence that, for as long as two and one half years, the parties intended to resolve this case by a plea agreement, we construe these reasons for the delay against Harvey, not against the State.

Further, in conducting our Barker v. Wingo analysis, we consider whether Harvey was prejudiced by the delay. Harvey testified he believed he had suffered prejudice. He also said he had attempted to subpoena an individual named Mike James. Harvey did not, however, offer any evidence as to what testimony he anticipated James would provide. He also failed to show the efforts he had made to secure James’ testimony. Where the defendant does not present evidence of particularized prejudice suffered as a result of the passing of time between arrest and assertion of his or her right to a speedy trial, such lack of evidence will be considered against the defendant’s claim of prejudice suffered. See Harris v. State, 827 5.W.2d 949, 957 (Tex.Crim.App.1992); Holmes v. State, 938 S.W.2d 488, 491 (Tex.App.-Texarkana 1996, no pet.).

Considering the history of this case, and the evidence adduced in connection with Harvey’s claim, we hold that: the length of the delay raises a presumption of unreasonable delay; the reasons for the delay are attributable in significant part to Harvey; plea negotiations were being conducted, and the matter was set for a plea on several occasions, and these facts weigh against Harvey’s complaint; Harvey failed to affirmatively assert his right to a speedy trial for more than three years, and then received a trial within three months of his request; and there is no evidence of particularized prejudice. Based on this analysis, the trial court did not err in overruling Harvey’s motion for dismissal.

No Error in Precluding Harvey from Putting Prosecutor on Stand

Harvey attempted to call the prosecutor as a witness at the pretrial hearing on his motion to dismiss. Harvey’s stated purpose was to “introduce a copy of the outside of [the prosecutor’s] file where he kept notes regarding the proceedings in this case. I think ... in the event that this is on appeal, the appellate court would need to look at a copy of the notes on the file of the district attorney.” The State provided a copy of the front of its file, the trial court reviewed that copy in camera, and the copy was sealed and forwarded to this Court for appellate review. The trial court denied Harvey’s request to call the prosecutor to testify. Harvey now claims such denial was error.

Harvey received the relief he requested when the trial court made the copy of the prosecutor’s notes a part of the record for appellate review. Harvey failed to make any record of what else, if anything, he anticipated the prosecutor’s testimony to provide. Nothing is preserved for appellate review. Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App.1998); Greenwood v. State, 948 S.W.2d 542, 549 (Tex.App.-Fort Worth 1997, no pet.); see Tex.R.App. P. 33.2. Harvey’s points of error regarding a violation of his right to a speedy trial are overruled.

STATE PROPERLY ALLOWED TO READ JURISDICTIONAL PRIOR CONVICTIONS

Harvey contends the State should not have been permitted to read the complete indictment at trial, including the paragraphs detailing two prior DWI convictions. These two prior convictions, if proved, would elevate Harvey’s charged offense to a third degree felony. Harvey stipulated to his prior convictions, and the trial court instructed the jury that it was required to find Harvey had been previously twice convicted of DWI offenses.

This issue is controlled by the Texas Court of Criminal Appeals’ rulings in Robles and Tamez. In Robles, the appellant offered to stipulate to the existence of the two prior convictions and requested the trial court prevent the state from introducing evidence of those convictions. His request was denied. The Texas Court of Criminal Appeals held that the stipulation should have been approved and the state prevented from entering into evidence the judgments of the jurisdictional prior convictions. Robles, 85 S.W.3d at 213-14. In Tamez, the appellant offered to stipulate to his previous DWI convictions, thereby satisfying the jurisdictional requirements of Section 49.09(b). Nonetheless, the state was allowed to read the full indictment, which contained allegations of six prior DWI offense convictions, and the state was further allowed to enter into evidence judgments proving all six previous convictions. Tamez, 11 S.W.3d at 199. The Texas Court of Criminal Appeals held this was unduly prejudicial to Tamez and was reversible error. The court said, “[T]he proper balance is struck when the State reads the indictment at the beginning of trial, mentioning only the two jurisdictional prior convictions, but is foreclosed from presenting evidence of the convictions during its case-in-chief.” Tamez, 11 S.W.3d at 202.

The procedure suggested by the Texas Court of Criminal Appeals in Tamez is exactly what happened in Harvey’s trial. Harvey claims in his brief that “the State in voir dire, and throughout the guilt-innocence phase of this case referred to and tried to refer to evidence of Appellant’s prior DWI convictions which violated Appellant’s right to stipulate.” Harvey does not direct us to any place in the record where the State “referred to and tried to refer to” such evidence. From our review of the record, we have no such contravention of the procedures prescribed in Tamez and Robles. We overrule this point of error.

EVIDENCE SUFFICIENT TO SUPPORT CONVICTION

Harvey claims, in a single point of error, that the evidence was legally and factually insufficient to support the jury’s conviction. We disagree.

The Evidence

Two Texarkana police officers testified that, on November 3, 2000, at around 2:00 a.m., they were concluding a traffic stop on the side of westbound Interstate 30 when they saw Harvey, driving a black Blazer truck, pass them and briefly cross the yellow line. The officers followed Harvey and saw him cross the yellow line again, then cross the white line to the right. When Harvey crossed to the right lane, but used the turn signal indicator for a single “blink” when the vehicle was almost entirely in the new lane, the officers determined Harvey might be impaired and activated their overhead lights to stop him. The officers both testified Harvey continued driving on the interstate for a mile to a mile and a half after they activated their patrol car’s overhead lights.

Officer Greg Vickers testified he made contact with Harvey. When asked to produce his driver’s license and proof of insurance, Harvey was very slow and deliberate. Vickers said that it took Harvey four to five minutes to produce his driver’s license and that it was clear Harvey had difficulty understanding what Vickers was asking. Vickers smelled alcohol when Harvey lowered his window. When Harvey was told to exit his truck, Vickers and Officer Gerald Palmore observed Harvey stagger and lean against the truck for support. The officers testified that, when they asked Harvey to participate in field sobriety tests (FSTs), he was uncooperative. When Harvey did attempt to perform the FSTs, he did not perform well: he missed touching the tip of his nose three of four times; slurred his speech when reciting the alphabet; generally failed to follow instructions; swayed back and forth; and, at one point, Vickers had to extend his own hand to keep Harvey from falling. Palmore administered the horizontal gaze nystagmus test and testified that Harvey’s eyes showed the onset of nystagmus before Palmore’s stimulus reached the 45-degree angle. Palmore said that, based on his training and the scientific studies he had reviewed, a person with nystagmus at such points would have a blood alcohol level of at least 0.10 percent.

Based on these preliminary observations and test results, Harvey was arrested for DWI. He was taken to the police station. The interview with Harvey at this location was videotaped and introduced into evidence. In the interview, some of the FSTs are repeated. Harvey can be clearly seen leaning against a door for support while performing a one-legged lift. He also had difficulty reciting the alphabet. Harvey agreed to provide a sample of his breath for an Intoxilyzer test, and Sergeant Bill Looney was called to administer this test. In the videotape, Harvey can be seen reaching into his pocket, then hurriedly putting his hand to his mouth and begin chewing rapidly. Looney testified that, when he was commencing the test, instead of providing a breath sample, Harvey spat tobacco juice into the mouthpiece. Looney removed, cleaned, and returned the mouthpiece. On two more occasions, Harvey failed to breathe into the machine with sufficient force to provide a useable sample. Looney marked Harvey as having refused to provide a sample.

Legal Sufficiency

In our review of the legal sufficiency of the evidence, we employ the standards set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). This calls on the reviewing court to view the relevant evidence in the 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). 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). It is clear that, based on the evidence presented here, a rational jury could have found that Harvey was guilty of driving while intoxicated.

Factual Sufficiency

In a factual sufficiency review, the appellate court views all the evidence in a neutral light and determines whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex.Crim.App.2004) (citing Zuniga v. State, 144 S.W.3d 477, 486 (Tex.Crim.App.2004)). If the evidence is factually insufficient, we must reverse the conviction and remand the case for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex.Crim.App.1996).

Through cross-examination of the State’s witnesses and by his own witnesses, Harvey established he had suffered serious back injuries in the past and, at the time of this alleged offense, he was on medications for both his back and high blood pressure. At the interview at the police department, Harvey stated his last dose of medication was taken around noon. This was directly contradicted by Harvey’s testimony to the jury that he had taken a dose of his medication before going to the bar on the night of his arrest and that he also took a pill during the video interview after his arrest.

Based on the evidence adduced in this case, there is ample evidence to support the jury’s finding of guilt beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Likewise, we cannot say the contrary evidence is so strong the State could not have met its burden of proof. See id. The evidence was factually sufficient to support Harvey’s conviction. We overrule Harvey’s legal and factual sufficiency points of error.

NO ERROR IN SENTENCING

Harvey’s last two points of error claim the trial court erred in sentencing him to a period of “shock probation.” According to Harvey, the trial court’s sentence was against the great weight of the evidence. The State presented no evidence at the punishment hearing and did not cross-examine Harvey’s punishment phase witnesses (including Harvey himself). In closing arguments, the State asked the trial court to place Harvey on ten years’ community supervision and to put Harvey on “shock probation.” Harvey’s attorney asked for five years’ community supervision.

We first point out that Harvey’s sentence was clearly within the range of punishment prescribed by the Legislature for a third degree felony.

Traditionally, the trial court is accorded great discretion in assessing a defendant’s punishment. Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App.1972); see also Morano v. State, 572 S.W.2d 550, 551 (Tex.Crim.App. [Panel Op.] 1978) (‘When a defendant waives a jury trial, the trial judge has discretion to assess the punishment within the range provided by law which he finds appropriate in the circumstances.”).

While it is true the State did not present evidence or cross-examine Harvey’s witnesses at the punishment hearing, the trial court had before it all the evidence from the guilt/innocence phase of trial. See Trevino v. State, 100 S.W.3d 232, 238 (Tex.Crim.App.2003) (noting no requirement evidence from guilt/innocence be formally reoffered at sentencing). Harvey’s witnesses included his Alcoholics Anonymous sponsor and a friend, also affiliated with Alcoholics Anonymous. Harvey testified he had completed a residential, inpatient treatment program for alcoholism and attends no less than five Alcoholics Anonymous meetings per week. Harvey’s argument on appeal is that, because the PSI report generated by the local community supervision department did not mention “shock probation,” the evidence only supports a placement on community supervision, without a term of incarceration.

The recommendation in the PSI report states, in pertinent part, “the court may wish to consider the following conditions of probation ... [b]e sentenced to Ten (10) years in the Texas Department of Criminal Justice Institutional Division, but suspended and placed on probation for a period of Ten (10) years.”

As we have pointed out, sentencing is within the sound discretion of the trial court, and we review the sentence imposed by a trial court for an abuse of such discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984). Harvey has not explained how the trial court, which assessed a punishment well within the statutory range, abused its discretion in ordering Harvey to be incarcerated for 100 days and then be considered for community supervision. Such is clearly within the trial court’s discretion. The statute authorizing such procedure clearly states: “the judge of the court that imposed such sentence may ... suspend further execution of the sentence....” Tex.Code Crim. Proc. Ann. art. 42.12, § 6(a); see also State ex rel. Bryan v. McDonald, 642 S.W.2d 492, 494 (Tex.Crim.App.1982). The use of “may” creates discretionary authority in the trial court. Tex. Gov’t Code Ann. § 311.016 (Vernon 2005). A trial court will be found to have abused its discretion only if there is no evidence or factual basis for the punishment imposed. Jackson v. State, 680 S.W.2d 809, 814 (Tex.Crim.App.1984); Benjamin v. State, 874 S.W.2d 132, 135 (Tex.App.-Houston [14th Dist.] 1994, no pet.). Because the sentence imposed was within the applicable range of punishment, and based on the evidence before the trial court, we find the trial court did not abuse its discretion, and we find no merit in Harvey’s contention.

NO EVIDENCE TRIAL COURT CONSIDERED MATTERS OUTSIDE THE RECORD

As part of his complaint about the trial court’s sentence, Harvey accuses the trial court of considering matters not in the record in assessing punishment. Harvey made no objection at the trial court level about either the sentence or the trial court’s comments at sentencing. Because Harvey did not present these issues at the trial court level, he did not preserve these allegations for our review. See Tex. R.App. P. 33.1(a); Jackson v. State, 989 S.W.2d 842, 844 (Tex.App.-Texarkana 1999, no pet.). We overrule this point of error.

CONCLUSION

We hold that 1) Harvey was not denied a speedy trial; 2) the State correctly read the predicate convictions for DWI as part of the indictment; 3) the evidence was legally and factually sufficient to support Harvey’s conviction; and 4) there was no error in the trial court’s sentence.

Accordingly, we affirm the judgment.

      . After imposing a sentence committing a defendant to prison, a trial court’s jurisdiction is extended for 180 days, during which period the court may, on motion of the state, defense, or sua sponte, suspend further execution of the sentence and place the defendant on community supervision. Tex.Code Crim. Proc. Ann. art. 42.12, § 6 (Vernon Supp.2004-2005).
      This is commonly referred to as "shock probation.”

      . See generally U.S. Const, amend. VI; Tex. Const, art. I, § 10; Tex.Code Crim. Proc. Ann. arts. 1.03, 1.05 (Vernon 2005).

      . The pretrial hearing was held April 14, 2004; voir dire of the jury panel and the presentation of the State’s case-in-chief were all completed the same day.

      . Shumaker agreed at the pretrial hearing that, sometime around the time Harvey was in an alcohol rehabilitation facility, he had discussed a plea in absentia with the State, although he did not remember the details of that discussion. While it is permissible in some circumstances for a defendant to plead to a misdemeanor in absentia, no such proceeding is permissible on a felony charge. See Tex.Code Crim. Proc. Ann. art. 27.13 (Vernon 1989), art. 27.14 (Vernon Supp.2004-2005).

      . Most delays of eight months or over are considered presumptively unreasonable and prejudicial. Doggett v. United States, 505 U.S. 647, 652 n. 1, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992).

      . Harvey made application for the issuance of a subpoena to compel the appearance of “Mike Jaynes,” with a Texarkana address, to appear and testify at the trial.

      . The Texas Court of Criminal Appeals pointed to the defendant's trial occurring within two months of his speedy trial motion in finding that assertion of the right did not weigh in the defendant’s favor. Kelly, 163 S.W.3d at 729.

      . See generally Tex. Pen.Code Ann. § 49.09 (Vernon Supp.2004-2005).

      . Robles v. State, 85 S.W.3d 211 (Tex.Crim.App.2002); Tamez v. State, 11 S.W.3d 198 (Tex.Crim.App.2000).

      . This contention is based on the trial court's remarks while pronouncing sentence:
      [I]t strikes me as unrealistic to believe that the three times you were arrested for DWI just happened to be the only three times you ever got behind a wheel while you were under the influence. That would just be a remarkable coincidence to me that they actually stopped you the only three times you ever were under the influence.