author: PHIL HARDBERGER, Chief Justice. PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice,

text:
    Michael M. BUECHER, et al., Appellants, v. CENTEX HOMES, a Nevada Partnership, and Centex Real Estate Corporation d/b/a Centex Homes, Appellees.
    No. 04-99-00337-CV.
    Court of Appeals of Texas, San Antonio.
    March 31, 2000.

      Bryan A. Woods, Bayne, Snell & Krause, San Antonio, for appellant.
    Annalyn G. Smith, Bracewell & Patterson, L.L.P., San Antonio, Eugene A. Cook, Warren W. Harris, Bracewell & Patterson, L.L.P., Houston, for appellee.
    Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.
   ON APPELLEE’S MOTION FOR REHEARING AND APPELLEE’S MOTION FOR EN BANC REHEARING

Opinion by:

PHIL HARDBERGER, Chief Justice.

Can a builder cause a homeowner to waive the implied warranty of habitability and good and workmanlike construction by getting the homeowner to sign a contract of adhesion? We hold he cannot. In so holding, we affirm our belief in the continued viability of Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex.1987). Melody Home held that the implied warranty to perform repair services in a good and workmanlike manner cannot be waived.

It would be incongruous if public policy required the creation of an implied warranty, yet allowed the warranty to be disclaimed and its protection eliminated merely by a pre-printed standard form disclaimer or an unintelligible merger clause.

Melody Home, 741 S.W.2d at 355.

The homebuilder in this case argues that the anti-waiver language in Melody Home only applies to the implied warranty relating to the repair of tangible personal property, and not the implied warranty relating to the construction of new homes. We disagree. The services in question in Melody Home were repairs to a modular home. But the rational of giving the consumer certain basic protections in this most important of possessions is the same. The burden on the homebuilder is not great: only that the home be built in a workmanlike manner and be fit for human habitation. It is a minimal standard, but it cannot be contracted away by requiring the homeowner to sign a contract in which the homeowner is in an inferior bargaining position. This case is a good example. The homebuilder stated, in writing, it would not sell the home to the buyer unless the buyer agreed to give up his rights to the implied warranties of good and workmanlike construction and habitability. Why should a home buyer be forced to make such a Hobson’s choice? He shouldn’t.

Factual and PROCEDURAL History

The standard form sales agreement of the homebuilder in this case, Centex Homes and Centex Real Estate Corporation d/b/a Centex Homes (“Centex”), contains a provision that waives the implied warranties of good and workmanlike construction and habitability with regard to new homes. The waiver provision states:

“PURCHASER AGREES TO ACCEPT SAID HOMEOWNER’S WARRANTY AT CLOSING IN LIEU OF ALL OTHER WARRANTIES, WHATSOEVER, WHETHER EXPRESSED OR IMPLIED BY LAW, AND INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF GOOD WORKMANLIKE CONSTRUCTION AND HABITABILITY. PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER IS RELYING ON THIS WAIVER AND WOULD NOT SELL THE PROPERTY TO PURCHASER WITHOUT THIS WAIVER.”

In place of the implied warranties, Centex agrees to deliver its standard form Limited Home Warranty against defects in workmanship and materials, a copy of which is made available to the homeowner.

The Homeowners allege, as part of a class action, that the waiver provision violates section 17.46(b)(12) of the DTPA. The Homeowners sought an injunction that would prevent Centex from asserting that the implied warranties had been waived, from relying on the waiver in disclaiming responsibility to homeowners, and a declaration that the waiver provision is unenforceable. Centex filed special exceptions, asserting that the Homeowners’ allegations were contrary to existing law and further contending that it would be manifestly unjust to permit the Homeowners to proceed with a class action based solely on an argument for changing existing law. The trial court granted the special exceptions, striking the allegations relating to the unenforceability of the waiver provision, and dismissing the claims based thereon. The trial court severed the dismissed claims, and the Homeowners timely appealed.

STANDARD OF REVIEW

A special exception is the proper method to determine whether the plaintiff has pled a cause of action. Albright v. Texas Dept, of Human Services, 859 S.W.2d 575, 582 (Tex.App.—Houston [1st Dist.] 1993, no writ). When a trial court dismisses a case upon special exceptions for failure to state a cause of action, the appellate court’s review of this legal question is de novo. Nichols v. Jack Eckerd Corp., 908 S.W.2d 5, 7 (Tex.App.—Houston [1st Dist.] 1995, no writ); Fernandez v. City of El Paso, 876 S.W.2d 370, 372 (Tex.App.—El Paso 1993, writ denied). The appellate court is required to accept as true all factual allegations in the pleading. Nichols, 908 S.W.2d at 7; Fernandez, 876 S.W.2d at 372.

Discussion

In Humber v. Morton, 426 S.W.2d 554, 554 (Tex.1968), the widow Humber brought suit against a builder-vendor, alleging that the new home she purchased was not suitable for human habitation because an improperly constructed fireplace and chimney caused the house to catch fire. The lower courts held that the builder-vendor was not liable to Humber because the doctrine of caveat emptor applied to the sale of a new house by a builder-vendor, and consequently no implied warranty that the house was fit for human habitation arose from the sale. Id. at 555. After reviewing the trend against the application of the doctrine of caveat emptor both in Texas and other state court decisions, the Texas Supreme Court asserted:

The caveat emptor rule as applied to new houses is an anachronism patently out of harmony with modern home buying practices. It does a disservice not only to the ordinary prudent purchaser but to the industry itself by lending encouragement to the unscrupulous, flyby-night operator and purveyor of shoddy work.

Id. at 562. The court held that a builder-vendor impliedly warrants that a new home that he builds and sells is constructed in a good workmanlike manner and is suitable for human habitation. Id.

In G-W-L, Inc. v. Robichaux, 643 S.W.2d 392, 393 (Tex.1982), the Texas Supreme Court was presented with the question of what is sufficient to exclude the implied warranty of fitness created in Humber. Both parties agreed in G-W-L that the implied warranty could be waived by proper language. Id. The court held that the language waiving the implied warranty must be “clear and free from doubt.” Id. The disclaimer language in G-W-L stated that there were no warranties, express or implied, in addition to those set forth in the listed documents. Id. The court reasoned that the parties to a contract have an obligation to protect themselves by reading what they sign, and the disclaimer language met the standard necessary to exclude the Humber warranty. Id.

The permissible waiver of implied warranties was revisited by the Texas Supreme Court five years later in Melody Home Mfg. Co. v. Barnes, 741 S.W.2d at 355. In Melody Home, the court first considered whether the protection of Texas consumers required the adoption of an implied warranty that repair services of existing tangible goods or property would be performed in a good and workmanlike manner. Id. at 353. After examining the policies favoring the adoption of such an implied warranty, the court held that an implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner is available to consumers suing under the DTPA. Id. at 354. The court next considered whether the implied warranty could be waived and held that public policy precluded such a waiver by a pre-printed standard form disclaimer or an unintelligible merger clause.

Centex contends that this waiver prohibition language must be read narrowly as only prohibiting the waiver of the implied warranty with regard to repair services. Centex first notes that the waiver with regard to new homes is permissible because the Homeowners are adequately protected by the Residential Construction Liability Act (“RCLA”). However, the RCLA is not designed to supplant the implied warranty. See William T. Little & Stephen Paxson, Builder Liability of the Implied Warranties of Good Workmanship and Habitability and the Builder’s Statute of Repose, 56 Tex. B.J. 462, 462 (1993) (noting construction defect claim based upon an alleged breach of an implied warranty will generally be brought under the provisions of the DTPA or the RCLA). As noted in the article Centex cites in asserting its RCLA argument, “there is no clear authority as to the legal effect of a disclaimer of such implied warranties in connection with new construction.” Id.

Centex also argues that the waiver of implied warranties should be permitted because the express warranties provided in lieu of the implied warranties serve the “gap-filler” function which the implied warranties are designed to satisfy. Centers contention rests on its premise that the warranties are implied to fulfill this “gap-filler” function. However, the Hum-ber court noted that the purpose of the implied warranty was to discourage unscrupulous, fly-by-night operators and purveyors of shoddy work. It was this same concern with regard to discouraging shoddy workmanship that led the Melody Home court to adopt the prohibition against waiver. As the court noted, permitting disclaimers would lead to the development of adhesion “take it or leave it” contracts. The warranty provision in Cen-tex’s standard form contract exemplifies this concern because it provides: “PURCHASER ACKNOWLEDGES AND AGREES THAT SELLER IS RELYING ON THIS WAIVER AND WOULD NOT SELL THE PROPERTY TO PURCHASER WITHOUT THIS WAIVER.”

Conclusion

In 1968, the Texas Supreme Court adopted the implied warranty relating to new home construction. Humber, 426 S.W.2d at 554. In 1987, the Court reasoned that the same public policy considerations that require the creation of an implied warranty prevent the warranty from being disclaimed and its protection limited by a pre-printed standard form disclaimer. Melody Home, 741 S.W.2d at 355. We conclude that this reasoning applies with equal force to the implied warranty relating to new home construction. The trial court’s judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Concurring Opinion by: PAUL W. GREEN, Justice.

Dissenting Opinion by: SARAH B. DUNCAN, Justice, joined by Justice, KAREN ANGELINI.

PAUL W. GREEN, Justice,

concurring.

The question is whether a consumer may contract away the implied warranties of habitability and good and workmanlike performance in the construction of a new home. The majority says such warranties cannot be waived or disclaimed, relying on Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex.1987). I must reluctantly concur.

The identical question was presented to the supreme court in G-W-L, Inc. v. Robichaux, 643 S.W.2d 392 (Tex.1982). In that case, the court unanimously held that the implied warranty of fitness created by Humber v. Morton, 426 S.W.2d 554 (Tex.1968) could be disclaimed by agreement. See Robichaux, 643 S.W.2d at 393. The court split, however, over the quality of language that must be used to create an effective waiver. The majority held the language must only be “clear and free from doubt.” Id. The dissent argued that “the better rule is the waiver must be in clear and unequivocal language specifically naming the warranty that is being disclaimed.” Id. at 394 (Spears, dissenting) (emphasis in original). In this case, the purchasers agreed to accept the homeowner’s warranty “in lieu of all other warranties, whatsoever, whether expressed or implied by law, and including but not limited to the implied warranties of good workmanlike construction and habitability.” (emphasis supplied). This language satisfies even the more rigorous test advocated by the dissent in Robichaux.

Five years after deciding Robichaux, the supreme court for the first time recognized an implied warranty for services related to the repair or modification of existing tangible goods or property. See Melody Home, 741 S.W.2d at 354. The court then went further and held that this implied warranty could not be waived. Id. at 355. Moreover, and of particular importance in this case, the court suggested that Robi-chaux was inconsistent with its holding. Id. (“To the extent that it conflicts with this opinion, we overrule [Robichaux].”).

Thus, on the basis of the rationale expressed in Melody Home, the majority disregards Robichaux and holds that the Humber implied warranty for new home construction may not be waived. Although I believe this is what the supreme court intended in Melody Home, I believe the court was wrong to extend the non-waiver holding to implied warranties in new homes. However, because I am bound to follow supreme court precedent, I must concur in the result.

I write separately because I believe Melody Home should be reconsidered, at least with respect to its holding that new home implied warranties cannot be negotiated away by the parties. The reason given for the anti-waiver holding in Melody Home was the supreme court’s concern that parties in unequal bargaining positions might be forced into accepting warranty disclaimers on a “take it or leave it” basis. See Melody Home, 741 S.W.2d at 355. That may be a legitimate concern where the service provider is in a superior bargaining position to the consumer. In Melody Home, for example, the consumer • was essentially in a captive position-he purchased what was represented as a habitable mobile home and, when there were problems, he expected the manufacturer to repair the defects in a good and workmanlike manner. Although there was no disclaimer of warranty in that case, the supreme court nonetheless determined that any attempted disclaimer would have been unenforceable because the consumer, without any effective means to negotiate with the manufacturer, would have had little choice but to accept the terms of the repair service provided. Id.

But where the parties are in an equal bargaining position, there is no legitimate reason why the parties should not be allowed to freely negotiate the existence or the scope of the warranties of habitability and good and workmanlike performance. As noted above, this principle was not even questioned by the court in Robichaux. 643 S.W.2d at 393. In Robichaux, a new-home purchaser sued the seller-builder for alleged defects in the house. The purchaser had agreed to waive the implied warranties in the sales contract, but he argued that the waiver language was inadequate to be effective. The supreme court held the waiver language in the contract was enforceable, reiterating the long-held rule that “[t]he parties to a contract have an obligation to protect themselves by reading what they sign.” Id. The implication is that the court considered the parties to have been on an equal footing in their ability to negotiate the terms of their home purchase contract.

Every day throughout the state, home buyers negotiate with home sellers over the terms of the transaction. As it happens, some consumers are better negotiators than others. But they all share the position of greatest strength in the transaction-the ability to walk away from a deal they do not like. Unlike the mobile home owner in Melody Home who was, as a practical matter, forced to look to the manufacturer to repair defects in his home, a prospective new-home purchaser is not forced by circumstances or any other reason to buy a home under a contract that waives the implied warranties. To the extent the majority considers such a transaction to be a contract of adhesion, I must respectfully disagree.

Melody Home, in the course of making a good point, went much too far by broadly condemning any attempt by the parties to a new-home sale to freely negotiate an agreement that substitutes contractual warranty provisions for the legally implied warranty. The better and more practical solution seems to be that which was expressed by the supreme court in Robi-chaux-smxplj make sure that the disclaimer of implied warranties is made known to the consumer in language that is “clear and free from doubt,” or “clear and unequivocal,” or however the court chooses to express the degree of notice that must be given to the consumer.

Centex Homes argues, quite rightly, that Robichaux should control this case. And while I may agree with the reasons given, the fact remains that Robichaux was overruled by Melody Home. Accordingly, I am constrained to follow what I believe is an ill-considered extension of the Melody Home non-waiver holding to new home sales. Perhaps this case will provide a means for the supreme court to reexamine the scope of Melody Home and, hopefully, reestablish the more reasonable approach to the issue articulated in Robi-chaux.

SARAH B. DUNCAN, Justice,

dissenting, joined by Justice, KAREN ANGELINI.

I respectfully dissent. In the context of the implied warranties involved in this case, Robichaux survives Melody Home and remains the law that binds this court. I would therefore follow Robichaux. If Melody Home is to be extended, it is the prerogative of the Supreme Court of Texas, not this court.

“[A]n action for breach of warranty is not a creation of the [Texas Deceptive Trade Practices] Act.” Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex.1991). Therefore, to determine the nature and extent of the warranty at issue, we must refer to the source by which the warranty was created. Id. at 576-77. The warranty of habitability is a creature of the common law, created by the Texas Supreme Court in Humber v. Morton, 426 S.W.2d 554 (Tex.1968), and, under the common law, it may be waived. G-W-L, Inc. v. Robichaux, 643 S.W.2d 392, 393 (Tex.1982) (holding warranty was waived because disclaimer was “clear and free from doubt”); see also id. at 394-95 (Spears, J., dissenting) (advocating that the better rule would require the waiver to be in “clear and unequivocal language specifically naming the warranty that is being disclaimed”).

The majority holds the implied warranty may not be waived, relying upon the reasoning in Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex.1987). But, as the concurrence points out, Melody Home did not involve the implied warranties involved in this case. Id. (holding the implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner may not be waived and overruling Robichaux “[t]o the extent that it conflicts with this opinion”). And, unlike my colleagues, I believe we are bound by Robichaux unless and until it is overruled in material part.

      . Parenthetically, it should be noted that the anti-waiver holding of Melody Home has nothing to do with the facts of that case and is only dicta. No attempted waiver of implied warranties was involved. Moreover, the question of whether a consumer could waive an implied warranty of habitability or good and workmanlike repair was never raised by the parties. See 741 S.W.2d at 356 n. 1 (Gonzalez, concurring). The jssue before the court was purely whether the homebuilder/re-pairer had breached the Humber implied warranty of habitability, and whether a service provider was liable for breach of an implied warranty to render repair services in a good and workmanlike manner. Id. Notwithstanding that the anti-waiver holding is dicta, it is difficult to ignore the fact that the court specifically overruled Robichaux. Id. at 355.


source: Caselaw Access Project

author: DIXON'W. HOLMAN, Justice.

license: Public Domain

text:
    Dionicio Vega GARZA, Appellant, V. The STATE of Texas, State.
    No. 2-97-573-CR.
    Court of Appeals of Texas, Fort Worth.
    April 6, 2000.

      Law Office of William H. “Bill” Ray, P.C., William H. “Bill” Ray, Fort Worth, for Appellant.
    Tim Curry, Crim. Dist. Atty., Charles M. Mallín, Asst. Chief of the Appellate Section, Michael R. Casillas, Jay Lapham, and Barbara Medley, Asst. Crim. Dist. At~ tys, Fort Worth, for Appellee.
    Panel B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION ON REMAND

DIXON'W. HOLMAN, Justice.

This case of aggravated sexual assault of a child comes to us on remand. On original submission, we considered Appellant Dionicio Vega Garza’s first point and, relying on Davis v. State, 782 S.W.2d 211, 214 (Tex.Crim.App.1989), cert. denied, 495 U.S. 940, 110 S.Ct. 2193, 109 L.Ed.2d 520 (1990), held that a request for a jury shuffle must be made before the movant reviews juror information cards or biographical questionnaires. Accordingly, we ordered that Appellant’s conviction be reversed and that the case be remanded for a new trial. See Garza v. State, 988 S.W.2d 352, 358 (Tex.App.—Fort Worth), rev’d, 7 S.W.3d 164 (Tex.Crim.App.1999). The Court of Criminal Appeals reversed our holding and instructed us to consider Appellant’s remaining points. See Garza v. State, 7 S.W.3d 164, 166 (Tex.Crim.App.1999). After carefully reviewing each of those points, we affirm the trial court’s judgment.

I. BACKGROUND

CQ and her mother Susan lived together in a trailer home. Susan began dating Appellant during the summer of 1994. One afternoon, Susan went to the store to buy some cigarettes and left CQ and Appellant alone together. While Susan was away, Appellant sexually assaulted CQ by rubbing his penis against her and by penetrating her female sexual organ. CQ was seven years old at the time.

II. POINTS ON APPEAL

In his second point, Appellant complains that, during voir dire, the State improperly questioned prospective jurors by attempting to bind them to a specific set of facts. In point three, he insists that he was improperly restricted from asking CQ in court whether she had ever accused another person of committing the offense Appellant was charged with. Appellant also complains that he was not allowed to impeach a State’s witness by questioning her about a prior inconsistent statement. The fourth point contends that the trial court erred by sustaining the State’s objection when Appellant tried to ask about other suspects. Fifth, Appellant asserts it was error to exclude a document from evidence that a State’s witness had used in preparation for her testimony. In point six, Appellant questions the court’s refusal to let him impeach CQ’s credibility. Appellant argues in point seven that the trial court should not have allowed the State to impeach him with his prior inconsistent statements made to a Child Protective Services (“CPS”) employee. In point eight, Appellant argues that the court should have instructed the jury to find whether his statements to the CPS worker were voluntary. Last, Appellant claims that during closing argument the prosecutor improperly commented on Appellant’s failure to present a witness who could contradict CQ’s testimony.

A. QUESTIONING DURING VOIR DIRE

As a general rule, a trial judge is afforded broad discretion in conducting and controlling the voir dire proceeding. See Shipley v. State, 790 S.W.2d 604, 608 (Tex.Crim.App.1990) (op. on reh’g). Although it is permissible for a court to restrict voir dire in certain situations, the decision to limit voir dire is reviewed by ascertaining whether the trial court abused its discretion in limiting the questioning. See Allridge v. State, 762 S.W.2d 146, 163 (Tex.Crim.App.1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 108 L.Ed.2d 238 (1989).

In voir dire, a proper question seeks to discover a juror’s views on an issue that is applicable to the case at bar. See Shipley, 790 S.W.2d at 609. Questions seeking to elicit bias or prejudice from prospective jurors are proper. See Maddux v. State, 862 S.W.2d 590, 592 (Tex.Crim.App.1993); Osorio v. State, 994 S.W.2d 249, 253-54 (Tex.App.—Houston [14 th Dist.] 1999, pet. refd). Improper questions include those that ask potential jurors to reach conclusions based on “hypothetical facts” that mirror the case. See White v. State, 629 S.W.2d 701, 706 (Tex.Crim.App.1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1995, 72 L.Ed.2d 457 (1982). Discretion is abused when a proper question about a proper area of inquiry is prohibited. See Allridge, 762 S.W.2d at 163; Dutton v. State, 874 S.W.2d 206, 207 (Tex.App.—Houston [14th Dist.] 1994, pet. refd). When a trial court limits a litigant’s use of proper questions, the trial court prevents the party from making an intelligent decision regarding the use of peremptory challenges. See Shipley, 790 S.W.2d at 609; Allridge, 762 S.W.2d at 163.

Appellant objected that the following portion of the prosecutor’s voir dire was an impermissible attempt by the State to bind the veniremember to a specific set of facts:

One last thing, medical testimony. The State is not required to bring any medical testimony. Okay? Let me ask Ms. Bridges. Would you require the State to bring you any medical evidence?

Although a party may not bind a juror to a specific set of facts, see White, 629 S.W.2d at 706, a prosecutor is entitled to ask a prospective juror whether he or she will require evidence the law does not require for a verdict of guilty. See Robinson v. State, 985 S.W.2d 584, 587-88 (Tex.App.—Texarkana 1998, pet. refd). A conviction for sexual assault may be affirmed absent any medical evidence and solely on the testimony of the victim. See Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex.Crim.App.1991); Ruiz v. State, 891 S.W.2d 302, 304 (Tex.App.—San Antonio 1994, pet. refd); Knabe v. State, 836 S.W.2d 837, 839 (Tex.App.—Fort Worth 1992, pet. refd). We conclude that the trial court did not abuse its discretion by overruling Appellant’s objection to the prosecutor’s questions of juror Bridges.

Appellant also challenges the following portion of the pro'secutor’s voir dire that attempted to learn whether any of the veniremembers would have a problem believing a child witness. Appellant asserts that the statements and questions improperly committed the venire to a specific set of facts:

Our Constitution says — both the Texas Constitution and the Federal Constitution — that a defendant has an absolute right to face their accuser whether they are three or they are 93. Okay? So, you know, more likely than not you will hear from a child. Okay? So now my questions are kind of going along the lines of — what we are trying to do, both the State and the Defense, are trying to get fair and impartial individuals that don’t have preconceived notions.
And maybe because of someone’s life experience, because they have children or they don’t have children, they think, you know what, any kid, any child, if their head isn’t above this railing when they walk in here, I am not going to believe a word they say. Is there anybody that feels that way?
Or maybe just because they are a child, a little person, under this height, that you know what, if you bring somebody in shorter than this — let’s say a particular age, or under seven, under seven, I’m sorry, I can’t believe them.

Nevertheless, those inquiries by the prosecutor were proper for the purpose of learning whether any veniremember had bias or prejudice against a child’s testimony. The testimony of a child victim by itself is sufficient to support a conviction for sexual assault, see Ruiz, 891 S.W.2d at 304, and a potential juror who could not believe a witness simply for the fact of being a child would properly be excused for cause. See Davis v. State, 894 S.W.2d 471, 474 (Tex.App.—Fort Worth 1995, no pet.); see also Perez v. State, 960 S.W.2d 84, 88 (Tex.App.—Austin 1997, no pet.). Those inquiries by the prosecutor did not attempt to bind the venire to a specific set of facts, and we overrule Appellant’s second point.

B. RIGHT OF CONFRONTATION AND IMPEACHMENT OF WITNESSES

The Sixth Amendment insures that in “all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. Implicit within this light, as applied to the states via the Fourteenth Amendment, is the defendant’s right of cross-examination. See Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). However, this right is not absolute and can be denied where the evidence bears an indicia of reliability to protect the integrity of the fact-finding process. See Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972); Porter v. State, 578 S.W.2d 742, 745 (Tex.Crim.App.1979). Consequently, a trial court’s broad discretion to limit the extent of cross-examination requires the trial judge to carefully weigh the probative value of the evidence against the potential risks of prejudicing a party unfairly, embarrassing or harassing a witness, misleading or confusing the jury, and delaying or wasting time needlessly. See Hoyos v. State, 951 S.W.2d 503, 506 (Tex.App.—Houston [14 th Dist.] 1997), aff'd, 982 S.W.2d 419 (1998).

1. Right to Cross-Examine CQ

Appellant insists that the trial court abused its discretion by denying his Sixth Amendment right to confront CQ by asking her whether she had ever claimed that someone other than Appellant had sexually abused her. Appellant questioned CQ about this matter out of the jury’s presence and CQ testified that Appellant was the only person she had accused of molesting her. She also swore that she did not think she had ever stated otherwise. Appellant neither elicited any controverting testimony from any witness nor established that CQ had accused any other person.

Before a witness may be impeached with a prior inconsistent statement, the party offering the impeaching testimony must establish that the prior statement was made by the witness whom the party is now trying to impeach. See Tex.R. Evid. 613; Bigby v. State, 892 S.W.2d 864, 886 (Tex.Crim.App.1994), cert. denied, 515 U.S. 1162, 115 S.Ct. 2617 (1995). That can be done by calling a witness who actually heard the inconsistent statement being made. See Lafoon v. State, 543 S.W.2d 617, 621 (Tex.Crim.App.1976). In this case, a proper impeaching witness would be Paul Scott, the person to whom CQ allegedly made the prior inconsistent statement. Because Appellant never established that CQ actually made the prior inconsistent statement he sought to impeach her with, the trial court did not abuse its discretion by limiting Appellant’s right to cross-examine CQ on that matter.

2. Right to Cross-Examine Kitty Newbern

Appellant also argues that the trial court abused its discretion by denying his Sixth Amendment right to confront Kitty Newbern by cross-examining her before the jury about a prior inconsistent statement she allegedly made. Newbern testified outside the jury’s presence that Marlene Tucker never told her that CQ had been held down by her mother while Appellant sexually assaulted her. New-bern then admitted that she had testified to the contrary at a previous parental-rights termination hearing. At that point, Appellant contended that because New-bern testified inconsistently during the trial and the termination hearing, the trial court committed reversible error by excluding Newbern’s inconsistent testimony from the jury.

Although Newbern admitted that, because she failed to consult her file notes, she testified erroneously at the parental-rights termination hearing, she corrected her hearing testimony by stating that her notes confirmed that a CPS worker named Paul Scott, not Tucker, told her that CQ had been héld down and sexually molested. Newbern testified that CQ never told her that CQ’s mother held CQ while Appellant sexually assaulted her. It is improper to impeach a witness on an immaterial or collateral matter. See Flannery v. State, 676 S.W.2d 369, 370 (Tex.Crim.App.1984); Williams v. State, 542 S.W.2d 131, 138 (Tex.Crim.App.1976). Here, the substance of Newberris testimony remains the same regardless of the source — that as far as Newbern knew, only Appellant sexually assaulted CQ. We overrule point three.

C. ALLEGATIONS OF ADDITIONAL SUSPECTS

Appellant insists that the trial court abused its discretion by erroneously restricting him from questioning Detective Murphy about other suspects. Outside the jury’s presence, Detective Murphy testified that he had received third-hand information that CQ had been molested by a male in her home and that everyone assumed that it was Christopher Reinarz. The trial court sustained the State’s objection, ruling that the testimony was irrelevant. See Tex.R. Evid. 401. Appellant argues on appeal that any evidence of another suspect would certainly be relevant.

The burden of demonstrating the relevancy of proposed testimony rests on the proponent of the evidence. See Holt v. State, 912 S.W.2d 294, 301 (Tex.App.—San Antonio 1995, pet. refd). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. See Tex.R. Evid. 401; Contreras v. State, 915 S.W.2d 510, 519 (Tex.App.—El Paso 1995, pet. refd) (noting that evidence is relevant when there is a relationship between the evidence and a matter that is properly provable in the case on trial). Accordingly, courts must examine the purpose for which the evidence is offered and whether there is a direct or logical connection between the evidence and the proposition sought to be proven. See Fletcher v. State, 852 S.W.2d 271, 276-77 (Tex.App.—Dallas 1993, pet. refd).

Detective Murphy never testified that CQ had identified Reinarz as her molester or that any physical or forensic evidence pointed to him. Detective Murphy simply stated that he had only assumed that Rein-arz was a suspect and that he had no basis for his assumption other than inadmissible hearsay. While relevant evidence is always presumed to be admissible, irrelevant evidence is never admissible. See Tex.R. Evid. 402. Therefore, the trial court did not abuse its discretion by excluding Detective Murphy’s testimony regarding Reinarz as a suspect because it could have found that there was no connection other than speculation based on inadmissible hearsay finking Reinarz as a possible suspect. See id 401, 402; Nolen v. State, 872 S.W.2d 807, 812 (Tex.App.—Fort Worth 1994, pet. refd) (stating that relevancy is not established by trying to assert inference upon inference in a chain that is too attenuated). We overrule point four.

D. WRITINGS USED TO REFRESH RECOLLECTIONS

' When a witness uses a writing to refresh her memory before or during examination, the adverse party may demand to inspect the writing, to cross-examine the witness thereon, and to introduce into evidence any portion that relates to the witness’ testimony. See Tex.R. Evid. 612; Robertson v. State, 871 S.W.2d 701, 708 (Tex.Crim.App.1993), cert. denied, 513 U.S. 853, 115 S.Ct. 155, 130 L.Ed.2d 94 (1994). If the document is introduced, it is not offered for the truth of its content, but rather for the jury’s use in comparing the document to the witness’ testimony. See Robertson, 871 S.W.2d at 708. If it is claimed by the party calling the witness' that the writing contains matters not related to the subject matter of the testimony, the trial court must review the writing to determine whether it contains unrelated portions. See id. If so, those portions are redacted from the document and preserved for appellate review. See id. This rule is designed to allow the jury a means to compare the testimony of the witness to the document she relied on to refresh her memory. See id. at 709.

Appellant argues that the trial court abused its discretion by excluding from evidence an intake summary that Kelly Hutchinson, a CPS supervisor, reviewed and relied on during her testimony for the State. On cross-examination, Appellant questioned Hutchinson about the sexual abuse allegations she had investigated. Hutchinson testified that there were allegations of sexual intercourse between Appellant and CQ. Appellant then tried to introduce two sentences of the intake report: “[CQ] told her foster mother that mother’s boyfriend had had sexual intercourse with her” and “[Mother] knows about this in that [Mother] admits to walking in on Johnnie making [CQ] perform oral sex on him.” Because Appellant had a right to introduce the relevant portions of the writing under Rule 612, the trial court erred by excluding the portions that related to Hutchinson’s testimony. See Robertson, 871 S.W.2d at 708.

Because the trial court’s error is not constitutional, we will examine whether the error affected Appellant’s substantial rights. See Tex.R.App. P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence on the jury’s verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)); Coggeshall v. State, 961 S.W.2d 639, 643 (Tex.App.—Fort Worth 1998, pet. refd) (en banc).

Due to the fact that Rule 44.2(b) is virtually identical to Rule 52(a) of the Federal Rules of Criminal Procedure, we look to federal caselaw for guidance in applying this rule. See Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App.1998) (op. on reh’g), cert. denied, — U.S. —, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999); Coggeshall, 961 S.W.2d at 642-43; Umoja v. State, 965 S.W.2d 3, 11 (Tex.App.—Fort Worth 1998, no pet.) (op. on reh’g). Accordingly, we review the record as a whole to determine whether the error had a substantial influence on the jury’s verdict. See Mosley, 983 S.W.2d at 260; see also United States v. Blake, 107 F.3d 651, 653 (8 th Cir.1997); United States v. Wilson, 107 F.3d 774, 785-86 (10th Cir.1997).

We cannot say that the trial court’s-failure to admit the writing relied on by Hutchinson had a substantial influence on the jury’s verdict. The sentences Appellant sought to introduce in no way contradicted the substance of Hutchinson’s testimony. There was testimony that Appellant was CQ’s mother’s boyfriend and that they often referred to him as “Johnny.” CQ testified that Appellant penetrated her female sexual organ with his penis. Hutchinson would not have been impeached by the report, and therefore, the trial court’s error in excluding the report did not have a substantial or injurious effect on the jury’s verdict and did not affect Appellant’s substantial rights. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). Thus, we will disregard the error, see Tex.R.App. P. 44.2(b), and overrule point five.

E. CQ’S REPUTATION FOR TRUTHFULNESS

Appellant contends that the trial court abused its discretion by refusing to allow a witness to testify about CQ’s reputation for truthfulness. Appellant asserts that he asked Debra Davis, who was one of CQ’s counselors, to testify about CQ’s reputation for truthfulness and that the court’s sua sponte determination that CQ was truthful was an abuse of discretion.

Once a witness has testified, evidence pertaining to the witness’ bad reputation for truthfulness may be introduced to attack that witness’ credibility. See Tex.R. Evtd. 608(a). A reputation witness’ testimony cannot be based upon specific acts of conduct of the witness whose credibility is being attacked but rather upon a synthesis of “observations and discussions which results in a conclusion as to the individual’s reputation.” Adanandus v. State, 866 S.W.2d 210, 226 (Tex.Crim.App.1993), cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994); Wagner v. State, 687 S.W.2d 303, 313 (Tex.Crim.App.1985). To be an appropriate reputation witness, the witness must have a substantial familiarity with the reputation of the person about whom the witness is supposed to testify. See Lopez v. State, 860 S.W.2d 938, 944-45 (Tex.App.-San Antonio 1993, no pet.).

Appellant attempted to introduce Davis’ testimony to establish that she had heard that CQ had a bad reputation for being truthful. Although Davis admitted that she had heard that CQ was untruthful, Davis stated that CQ’s foster father was the only person whom she had heard that from. Davis also swore that she personally believed that CQ was truthful and that CQ’s foster father’s credibility was suspect. Because Davis had only heard about CQ’s untruthful nature from one person, the testimony Appellant sought to elicit from her was not based upon a “synthesis of observations and discussions.” Adanandus, 866 S.W.2d at 226. Therefore, because Davis was not substantially familiar with CQ’s reputation, the trial court did not err by disallowing Davis’ testimony. See id.; Lopez, 860 S.W.2d at 944-45. We overrule point six.

F. THE RIGHT TO COUNSEL AND APPELLANT’S INTERVIEW IN JAIL

1. Fifth Amendment Claim

Kelly Hutchinson, a CPS employee, met with Appellant on January 17,1996 while he was an inmate of the Tarrant County Jail. At that time, the court had appointed counsel to represent him. Hutchinson told Appellant she was there to investigate the allegations of sexual abuse concerning CQ. During their exchange, Appellant admitted that he had awakened and found CQ in bed with him. Appellant also denied sexually abusing CQ, but he stated that if any sexual contact had occurred, it must have been when he was asleep. Appellant called Hutchinson later that day or the following day and asked her if she would meet with him again. Hutchinson agreed and during this second interview, Appellant reiterated that if any sexual contact occurred, it was while he was sleeping.

Before admitting this testimony, the trial court held a Jackson v. Denno hearing and found that Hutchinson was not acting as a law enforcement officer when she interviewed Appellant in jail and that his statements were voluntary. The court then proceeded to allow Hutchinson’s testimony about the jail interview, but only if Appellant denied what he told her in jail. Appellant challenges the trial court’s ruling by arguing that Hutchinson’s testimony was improper impeachment testimony and should not have been allowed because Hutchinson failed to warn Appellant before interviewing him. The Fifth Amendment provides that no person shall be denied fife, liberty, or property without due process of law. See U.S. Const, amend. V. This privilege serves to protect persons from being compelled to incriminate themselves in all settings in which their freedom of action is curtailed in any significant manner. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

Miranda holds that when a criminal suspect is placed in custody, law enforcement personnel must comply with certain procedural safeguards in order to protect the suspect’s privilege against compulsory self-incrimination under the Fifth Amendment. See id. at 444, 86 S.Ct. at 1612. For example, in a situation where Miranda applies, a suspect must be informed of his right to an attorney, see id. at 479, 86 S.Ct. at 1630, and if the suspect invokes that right, all police questioning must halt. See Miffleton v. State, 777 S.W.2d 76, 79 (Tex.Crim.App.1989). However, Miranda’s safeguards apply only when a suspect is placed in custody and interrogated by police. See Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980); Jones v. State, 795 S.W.2d 171, 174-75 (Tex.Crim.App.1990). Because custodial interrogation includes the express questioning of a suspect, or any words or actions by the police other than those normally attendant to arrest, that the police should know are “reasonably likely to elicit an incriminating response,” Innis, 446 U.S. at 302, 100 S.Ct. at 1690; see also Townsend v. State, 813 S.W.2d 181, 186 (Tex.App.—Houston [14th Dist.] 1991, pet. ref d), we must consider whether Hutchinson was acting as an extension of the police when she interviewed Appellant.

A person who becomes an employee of a regulatory agency such as CPS does not automatically acquire the status of a law enforcement officer. See e.g., Cates v. State, 776 S.W.2d 170, 171-72 (Tex.Crim.App.1989). We must look at the record as a whole to determine whether Appellant’s admissions were the product of a calculated practice by Hutchinson as a CPS worker to attain what the police could not have lawfully accomplished themselves. See Cates, 776 S.W.2d at 172; Paez v. State, 681 S.W.2d 34, 36 (Tex.Crim.App.1984); McCrory v. State, 643 S.W.2d 725, 734 (Tex.Crim.App.1982).

In Paez, the Court of Criminal Appeals held that an investigator with the Texas Department of Human Resources (“DHR”) was not an extension of the police because she was not conducting a child abuse investigation at the time the defendant inculpated herself. See Paez, 681 S.W.2d at 38. The defendant had been charged and tried for the murder of her husband, not for child abuse. See id. at 35. The court reasoned that the DHR investigator’s motivation for questioning the defendant was not to elicit incriminating statements from her regarding child abuse, but rather to determine the well-being of the defendant’s children. See id. at 37.

The Court of Criminal Appeals was faced with an analogous situation five years later. However, the court declined to adopt a bright line rule and distinguished Paez on its facts. See Cates, 776 S.W.2d at 173. In holding that the DHR investigator in Cates was an extension of the police, the court emphasized that the defendant was the central figure of a criminal investigation for child abuse and that the investigator’s function in pursuing a child abuser was to enforce the laws of Texas by discovering abuse and reporting it to the police. See id. The court ended its discussion by noting that it was evident that the DHR investigator was conducting a criminal investigation and officially operating to assist police in enforcing the State’s criminal laws. See id. at 174.

Hutchinson testified on direct-examination that her function as a CPS investigator was to investigate allegations of abuse or neglect and to ultimately act in a manner that would provide safety for the child. She stated that the focus of her investigation was to find out what happened to CQ and she explained to Appellant that she was there because of a civil proceeding pertaining to the allegations of sexual abuse against him. On cross-examination, Hutchinson testified that she had been contacted by an investigator for the district attorney’s office prior to visiting Appellant in jail. Hutchinson knew before she interviewed Appellant that the district attorney’s office wanted the entire civil file, which would include her interview with Appellant.

Part of Hutchinson’s job as a CPS worker was to report allegations of sexual abuse. In fact, she contacted the police in November 1995 with accusations that Appellant had sexually assaulted CQ, which ultimately led to his arrest. Because the primary factors courts should consider when reviewing the record are the investigator’s motivations and the purpose for conducting the interview, see id. at 172-73, we conclude that Hutchinson was acting as an extension of the police. Although Hutchinson swore that she was not associated with law enforcement in any manner and that she was not licensed to carry a firearm, unequivocal testimony by a witness that he or she is not a law enforcement officer or that he or she does not have the power to arrest is not dispositive. See id. at 173.

Additionally, we conclude that Hutchinson deliberately elicited incriminating information in violation of Appellant’s Fifth Amendment right against self-incrimination and, as a general rule, any evidence that is obtained illegally is inadmissible. See U.S. Const, amend. IV. But, where a defendant’s direct examination is incompatible with the evidence, the self-incriminating statements may be used to impeach the defendant’s credibility as long as they were made voluntarily. See United States v. Havens, 446 U.S. 620, 627, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980); Harris v. New York, 401 U.S. 222, 226, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971).

Appellant testified that his statements were involuntary, but after reviewing the record as a whole, it is apparent that his statements were voluntary and not the result of any threat, force, or coercion by Hutchinson. Appellant testified that he agreed to speak with Hutchinson and that she did not threaten him in any manner. Hutchinson was unarmed and she did not promise Appellant anything in exchange for his cooperation. She identified herself as a CPS worker and explained that she was there to investigate allegations of sexual abuse. While Appellant claims that he would hot have spoken with Hutchinson had he known that she would inform the district attorney’s office of what he said, he admitted that he spoke to Hutchinson because he believed that she was going to help him. A defendant’s subjective belief is insufficient to render his statement involuntary, see Lykins v. State, 784 S.W.2d 32, 36-37 (Tex.Crim.App.1989), and based on the facts before us, the trial court reasonably could have found that Appellant voluntarily spoke with Hutchinson. He talked with Hutchinson freely and even called her the following day wanting to talk with her again. The trial court did not abuse its discretion by allowing the State to introduce Appellant’s statements after he testified on direct.

2. Sixth Amendment Claim

Appellant also contends that his Sixth Amendment right to counsel had attached at the time the statements were made. Under the Federal Constitution, the Sixth Amendment right to counsel attaches upon the commencement of adversarial proceedings. See Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). This is usually when a suspect is indicted or arraigned. See Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d.424 (1977). In this case, Appellant’s Sixth Amendment right to counsel had attached at the time he made the inculpatory statements. See Estelle v. Smith, 451 U.S. 454, 469, 101 S.Ct. 1866, 1876, 68 L.Ed.2d 359 (1981).

Generally, where the Sixth Amendment right to counsel has attached, any statement deliberately elicited from an accused is inadmissible at his trial. See United States v. Henry, 447 U.S. 264, 274-75, 100 S.Ct. 2183, 2189, 65 L.Ed.2d 115 (1980). Nevertheless, the Sixth Amendment does not bar the use of a defendant’s voluntary statement for impeachment where the defendant testifies at trial, even if the impeaching statements were elicited in violation of that defendant’s Sixth Amendment right to counsel. See Michigan v. Haney, 494 U.S. 344, 345-46, 110 S.Ct. 1176, 1177-78, 108 L.Ed.2d 293 (1990). Therefore, the issue here is whether Appellant’s statements were voluntary, and having already determined that they were, we overrule point seven.

G. JURY CHARGE

Where the voluntariness of a defendant’s statement is raised by the evidence, the jury, as the trier of fact, should be charged to find whether the defendant voluntarily provided the statement. See Smith v. State, 504 S.W.2d 875, 876 (Tex.Crim.App.1974). Failure to charge the jury about a disputed question of fact is reversible error, see Atkinson v. State, 923 S.W.2d 21, 23-25 (Tex.Crim.App.1996), but no error is committed by not charging on the question of voluntariness when there is no evidence that the defendant’s statement was involuntary. See McDonald v. State, 631 S.W.2d 237, 239 (Tex.App.—Fort Worth 1982, no pet.).

Appellant argues that the trial court erred by failing to charge the jury on the voluntariness of his statements to Hutchinson. In Thomas v. State, 723 S.W.2d 696 (Tex.Crim.App.1986), the Court of Criminal Appeals stated: “[a] trial court is required to include a properly worded Article 38.23 instruction in the jury charge only if there is a factual dispute as to how the evidence was obtained.” Id, at 707. In Thomas, the appellant testified but never controverted facts surrounding his refusal to provide a breath sample. See id. The court found that no instruction to the jury was necessary because there was no factual dispute as to how the evidence was obtained. See id.

Similarly, we find that the evidence here failed to raise an issue that would require the trial court to instruct the jury on voluntariness as required by article 38.22, section 7 of the Texas Code of Criminal Procedure. Appellant admitted that when he spoke with Hutchinson, he was not under the impression that he had to speak with her. Appellant agreed to speak with her without any threats or promises from her. Appellant admitted that he called Hutchinson the day after her first visit with him and asked her to meet with him again. Appellant admitted to speaking with Hutchinson freely, hoping that she might help him. In light of these facts, the trial court did not err by refusing to submit an instruction to the jury regarding the voluntariness of Appellant’s statement. We overrule point eight.

H. JURY ARGUMENT

Appellant argues that the State improperly commented on his failure to bring forth testimony during the guilt or innocence phase of the trial. Permissible jury argument falls within one of four categories: (1) summation of the evidence; (2) reasonable deductions from the evidence; (3) pleas for law enforcement; and (4) response to opposing counsel. See Felder v. State, 848 S.W.2d 85, 94-95 (Tex.Crim.App.1992), cert. denied, 510 U.S. 829, 114 S.Ct. 95, 126 L.Ed.2d 62 (1993); Alejandro v. State, 493 S.W.2d 230, 231 (Tex.Crim.App.1973).

In reviewing complaints about comments made during closing argument, appellate courts review the comments within the context of the entire argument. See Drew v. State, 743 S.W.2d 207, 220 (Tex.Crim.App.1987). When a trial court sustains an objection but denies a motion for mistrial, an appellate court will find reversible error only where the argument was so inflammatory, extreme, and manifestly improper that an instruction to disregard could not cure its prejudicial effect. See Faulkner v. State, 940 S.W.2d 308, 312 (Tex.App.—Fort Worth 1997, pet. refd) (en banc) (op. on reh’g).

The theme of Appellant’s closing argument alleged the inconsistency of the State’s case. Appellant argued that the State had not met its burden of proving his guilt beyond a reasonable doubt because the State’s evidence was inconsistent with his alleged guilt. For example, Appellant argued that CQ could not remember her age at the time of the abuse or how many times the abuse had occurred.

The State responded on rebuttal that Appellant’s own testimony was inconsistent and that CQ had named Appellant in a videotape as the perpetrator. The prosecutor’s rebuttal argument said that if CQ’s allegations were inconsistent, Appellant would have produced a witness to attest to that fact. Appropriately, the trial court instructed the jury to disregard that portion of the prosecutor’s argument. Almost any improper argument can be cured by such an instruction. See id. The State does not exceed the bounds of permissible jury argument by commenting on a defendant’s failure to call competent and material witnesses. See Rousseau v. State, 855 S.W.2d 666, 682 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S.Ct. 313, 126 L.Ed.2d 260 (1993). We are not persuaded that the trial court’s instruction to disregard failed to cure the prejudicial effect, if any, of the State’s argument in this case. See Faulkner, 940 S.W.2d at 312. We overrule point nine.

III. CONCLUSION

Because we have overruled each of Appellant’s remaining points, and because there is no error requiring reversal of his conviction, we affirm the trial court’s judgment.

      . We addressed point one in our original opinion.

      . It is well within a trial court’s discretion to impose reasonable restrictions on the exercise of voir dire examination. See Clark v. State, 608 S.W.2d 667, 669 (Tex.Crim.App. [Panel Op.] 1980). A trial court may properly (1) place reasonable time limits on the voir dire examination, (2) prevent the propounding of vexatious or repetitious questions, (3) disallow questions asked in an improper form, and (4) restrict inquiry into the personal habits of venirepersons, as opposed to inquiry into personal prejudices or moral beliefs. See Abron v. State, 523 S.W.2d 405, 408 (Tex.Crim.App.1975).

      . For example, a potential juror may be biased against the law. This is true where he or she refuses to consider or apply the relevant law. See Sadler v. State, 977 S.W.2d 140, 142 (Tex.Crim.App.1998). Bias exists when a venireperson’s beliefs or opinions "would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Riley v. State, 889 S.W.2d 290, 295 (Tex.Crim.App.1993), cert. denied, 515 U.S. 1137, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995).

      . Prejudice means the forejudgment of an issue or possessing of a preconceived opinion concerning someone’s guilt or innocence. See Black’s Law Dictionary 1179 (6th ed.1990).

      .The denial of a proper question to the veni-re is always reversible error. See Maddux, 862 S.W.2d at 592.

      . See supra note 3.

      . See supra note 4.

      . Newbern, a nurse at Catholic Charities, performed a sexual assault exam on CQ after she made her outcry.

      . Tucker was CQ’s foster mother. References to CQ’s "mother” are to her biological mother.

      .Tucker also denied making such a statement to Newbern and testified that CQ never told her (Tucker) that.

      . Rule 52(a) states: “Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.” Fed. R.Crim.P. 52(a).

      . Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908 (1964).

      . Hutchinson eventually turned over the file to the district attorney’s office.

      . The Supreme Court has not established a bright line marking when adversarial proceedings begin. See United States v. Gouveia, 467 U.S. 180, 187-89, 104 S.Ct. 2292, 2297-98, 81 L.Ed.2d 146 (1984). The Court of Criminal Appeals has also refused to declare a definitive rule. See e.g., State v. Frye, 897 S.W.2d 324, 327-28 (Tex.Crim.App.1995).


author: JOHN HILL, Justice

text:
    TEXAS INDUSTRIAL CONTRACTORS, INC., and Bayer, Corp., Appellants, v. Richard J. AMMEAN, Appellee.
    No. 09-98-073CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Sept. 23, 1999.
    Decided April 6, 2000.

      R. Brent Cooper, Michelle E. Robber-son, Cooper & Scully, P.C., Dallas, Hollis Horton, Orgain, Bell & Tucker, LLP, Beaumont, for appellants.
    Mike Jacobelfis, Tonahill, Hile, Leister & Jacobelfis, Beaumont, for appellee.
    Before BURGESS, STOVER and HILL,JJ.

       The Honorable John Hill, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1998).

   OPINION

JOHN HILL, Justice

(Assigned).

Texas Industrial Contractors, Inc., (Texas Contractors) and Bayer Corporation, successor to Miles, Inc., Polysar Rubber Division, (Bayer) appeal from a judgment in favor of Richard J. Ammean based upon his allegations that he suffered a back injury at his place of employment. Texas Contractors presents thirteen issues on appeal, while Bayer presents five issues on appeal. We reverse Ammean’s judgment against Texas Contractors and render judgment he take nothing because his claim is barred by the exclusive remedy provision of the Texas Workers’ Compensation Act. We affirm his judgment against Bayer for the reasons set forth in this opinion.

Ammean, at the time of the alleged injury, had been hired by Texas Contractors, a firm that was under contract with Bayer to act as an independent contractor doing work on Bayer premises. There was testimony at trial that Ammean injured his back when another such worker bumped the end pallet of a group of pallets upon which Ammean was working, causing Am-mean to lose his balance. Subsequently, Ammean sought and obtained workers’ compensation benefits through Texas Contractors’ insurance carrier.

Texas Contractors urges in issues numbers one through four that Ammean was precluded from recovering against it because of the exclusive remedy provision of the Texas Workers Compensation Act, in view of Ammean’s application for and receipt of compensation benefits from its workers’ compensation insurance carrier.

It is undisputed that Ammean applied for workers’ compensation benefits and has received benefits from Texas Contractors’ insurance carrier, following an award of the Texas Workers’ Compensation Commission. Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee. Tex. Lab.Code Ann. § 408.001 (Vernon 1996). Consequently, Ammean has no right of recovery for common law damages against Texas Contractors.

Ammean argues the exclusive remedy provision does not prevent him from recovering against Texas Contractors at common law because Bayer was his true employer since it controlled the details of his work and because he did not make an informed election of remedies. Where, however, a worker is hired by one company that has contracted to do work for another, that company has a workers’ compensation policy, and the worker receives benefits under that policy following an award by the Texas Workers’ Compensation Commission, the worker’s common law claim against that company is barred by the Act’s exclusive remedy provision, even if control over the details of the work is in the hands of the other company with which that company has contracted. See Chapa v. Koch Refining Co., 985 S.W.2d 158, 161 (Tex.App.—Corpus Christi 1998), rev’d on other grounds, 11 S.W.3d 153 (Tex.1999).

Ammean relies principally upon the case of Ferguson v. Hospital Corp. Int’l, Ltd., 769 F.2d 268 (5th Cir 1985). We find that case to be distinguishable. In Ferguson, two nurses were in an automobile accident in Saudi Arabia. Id. at 269. They filed workers’ compensation claims against their employer. Id. at 270. At about the same time they filed their claims, their employer, for the first time, gave oral and written notice that it had provided for payment of compensation benefits for the injuries they had sustained. Id. The Court held the employer’s failure to give an earlier notice that it had provided workers’ compensation coverage meant it was not a subscriber under the Act. Id. at 273. In view of that, the court held the employer could not assert that the nurses’ remedy was limited to the exclusive remedy of workers’ compensation. Id. The court held the nurses did not waive their common law claim by failing to notify their employer, within five days of receiving its post-accident notice, of their intention to retain the right to bring a common law claim. Id. at 274. Finally, the court held the nurses’ common law claims were not barred by the exclusive remedy provision because there was no final judgment for compensation. Id. at 275. Subsequently, the Texas Supreme Court held that a final resolution of the compensation claim is not always a necessary element of the election of remedies defense. SeeMedina v. Herrera, 927 S.W.2d 597, 605 (Tex. 1996). In any event, Ammean brought this common law claim after he had sought and obtained, with the assistance of an attorney, workers’ compensation benefits. No appeal was taken from the award. We sustain Texas Contractors’ contentions as presented in issues one, two, three, and four. In view of our determination of the contentions presented by these issues, we need not consider the issues presented in Texas Contractors’ issues five through thirteen.

Bayer urges in its first issue it is entitled to a rendition of judgment that it is not liable to Ammean on the basis of negligence because: it owed no legal duty under the express terms of its contracts with Texas Contractors; it owed no legal duty based upon an exercise of actual supervisory control over the injury-causing activity; and it owed no legal duty based upon the borrowed servant doctrine.

The jury found, in response to question four, that Bayer’s negligence proximately caused Ammean’s injury. The question contained an instruction that in order to find Bayer negligent, the jury must find that it retained part of the control of the work and that it failed to exercise its control of the work with reasonable care. We construe a part of Bayer’s argument under this issue as being that there is no evidence to support the jury’s finding in answer to question four.

When considering the legal sufficiency of the evidence, we consider only the evidence and inferences that tend to support the jury’s finding, and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 838 S.W.2d 942, 945 (Tex.1992). If there exists probative evidence to support the finding, the point will be overruled and the finding upheld. See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

Richard Ammean testified that after he was hired by Texas Contractors, he went to Bayer to work on their premises. His supervisor was Charles Anthony, a Bayer employee. Ammean was assigned to be a bale inspector, someone who checks for contamination in the rubber and picks out all such contamination. He testified that on the occasion in question, Bayer employees shut down the dryer where he was working and told him to go over to help build boxes. Ammean said that if a Bayer employee told him to go build boxes he was required to respond immediately. He testified that prior to the accident he did not know Charles Dumas, the leaderman at Bayer for Texas Contractors, and the leaderman was not present when he was doing his work. Part of the process of building boxes was gluing them. In order to glue the boxes, Ammean got a bucket of glue and the glue stick and spread the glue on top of the pallets, one at a time, as Richard Barfield slid the boxes up on the pallet.

Petitioner’s exhibit two was introduced. It is a document produced by Bayer that shows, with respect to building boxes, the materials required, the steps to go through to perform the work, and other things. Willie Lassien, another employee who was working with Ammean, testified he also considered Charles Anthony to be his foreman. Charles Anthony testified he was a supervisor and that Ammean worked under him. He had authority to tell Amme-an and others working under him when they could take their breaks. He also indicated Bayer provided all of the tools and equipment that Ammean and the others were using. Max Stevens testified he works for Bayer. He indicated Bayer trained forklift drivers, including John Barnett, the forklift driver who bumped the pallet upon which Ammean was standing. Stevens stated Barnett took the training twice, once in 1992 and once in 1994. He said that Bayer had the right to tell the forklift operators not to bump the pallets with people standing on them. Barnett said his supervisor when driving the forklift was a Bayer employee and that Bayer left it to his discretion as to whether to bump the pallets when someone was standing on them. We find the evidence is sufficient to support the jury’s answer to question four.

Bayer insists the evidence is insufficient because Ammean presented no evidence Bayer exercised actual control over the box-building activities of Texas Contractors’ employees or that they were borrowed servants in connection with the injury-causing activities. We hold that from the evidence outlined above, a reasonable jury could conclude Bayer did exercise actual control over the box-building activities of the Texas Contractor employees, including the activities of the forklift driver.

Bayer takes the position that when all of the evidence is considered, it either establishes that as a matter of law it did not exercise control, or that the jury’s finding it did exercise control is factually insufficient. Bayer reserved no right of control under its contract with Texas Contractors. Ammean testified that after filling out a job application with Texas Contractors, he underwent training on general on-the-job safety arranged for by Texas Contractors. When asked if Texas Contractors provided him with personal safety equipment, Am-mean said, “No, ... [tjhey gave them to me at the guard shack. Goggles and ... ear protection.” Evidence was presented that Texas Contractors paid Ammean. By deposition, Charles Anthony testified that Charles Dumas, Texas Contractors’ lead-erman, was there to supervise the Texas Contractors’ employees. There was also testimony that an employee of Texas Contractors trained Ammean on how to build the boxes. Ammean indicated he stood on the pallets while applying glue because it was easiest for him and, he said, he was told to do it that way. In his deposition, Charles Anthony denied Ammean and Barnett were under his supervision. He indicated, however, that if he saw someone bumping pallets while another worker was standing on them, he would speak to both of them. Robert Townsend, the senior safety officer for Bayer, testified that Charles Anthony was not a supervisor. He indicated Bayer would not consider it safe for someone to spread glue while walking on the pallets, or to push the pallets with a forklift when someone was standing on them, and that he would say something to someone if he saw them standing on the pallets. There was testimony that an employee of Texas Contractors had trained Barnett in the operation of the forklift. We disagree with Bayer’s contention that this evidence establishes as a matter of law Bayer did not exercise control over the activity which caused Am-mean’s injury.

In reviewing a factual sufficiency point, we must weigh all of the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. Considering all of the evidence, we hold the jury’s answer to question four is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Bayer relies in part upon the cases of Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985) and Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354 (Tex.1998). In Redinger, the court held when a general contractor exercises some control over a subcontractor’s work, the general contractor owes a duty to an employee of the subcontractor to exercise its supervisory control in a reasonable manner. Redinger, 689 S.W.2d at 418. We find nothing in Redinger that is inconsistent with our opinion in this case. In Hoechst-Celanese, the court held there was no evidence Hoechst-Celanese’s requirement that tools and implements were to be used in the manner for which they were intended was generally dangerous or unreasonable. Hoechst-Celanese, 967 S.W.2d at 358. We likewise find nothing in Hoechst-Celanese that is inconsistent with our finding in this case. We overrule Bayer’s contentions contained in issue one because probative evidence supports the jury’s finding that it exercised actual supervisory control over the injury-causing activity.

Bayer urges in issues two and three that Ammean waived his right to recover against it because he failed to submit the proper questions to establish its negligence liability, or its vicarious liability, arising out of an allegedly negligent activity and because the trial court failed to properly submit the disputed issue of control.

The jury found Bayer was negligent in its own right. It further found that on the occasion in question Barnett, the forklift driver, was acting as Bayer’s employee and that Bayer was negligent also for that reason. These questions were accompanied by instructions that the jury could not find Bayer negligent in its own right absent its retention of control and a failure to exercise its control with reasonable care. The jury was instructed it could not find that Barnett was Bayer’s borrowed employee unless it found that Bayer or its agents had the right to direct and control the details of the particular work inquired about.

Rule 277 of the Texas Rules of Civil Procedure provides that in all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions and submit such instructions and definitions as shall be proper to enable the jury to render a verdict. Tex.R. Civ. P. 277. We see no error in a case of this nature in submitting the negligence question to the jury, accompanied by an appropriate instruction with respect to the issue of control. Bayer relies upon the case of Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex.1997). We find that case to be distinguishable. In Olivo, the Texas Supreme Court held where one employed by an independent contractor is seeking to hold a general contractor liable for defects that exist on the premises when he entered on the premises for business purposes or that are created through some means unrelated to the activity of the injured employee or his employer, a jury charge that does not include the premise defect elements set forth in Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983), cannot support a recovery in a premises defect case. Id. at 529. Inasmuch as this is a negligent activity case, not a premises defect case, Olivo has no application.

Bayer urges that Ammean did not obtain a finding that he was an employee of Bayer or that his activity was controlled by Bayer at the time of his accident. The jury found that Ammean’s injuries were entirely caused by Barnett, the forklift driver, without any negligence on Amme-an’s part. That being the case, the issue is whether Barnett was Bayer’s employee and whether Bayer controlled the details of his work. Ammean did obtain a finding that Barnett was a borrowed employee of Bayer. The jury was instructed with respect to the issue of control.

Bayer urges that an instruction included in the jury charge that “a contract between two employers providing that one shall have the right of control over certain employees is a factor to be considered, but is not controlling” is a comment on the weight of the evidence. The court’s instruction is a correct statement of the law. See Exxon Corp. v. Perez, 842 S.W.2d 629, 630 (Tex.1992). We believe that in this situation it clarified the issue for the jury and did not constitute a comment on the weight of the evidence.

Bayer urges that Ammean did not obtain a finding Barnett was negligent. Question No. 7 asked if Bayer was negligent. It included- an instruction that an employer is liable for the negligence of its employees. In Question 6, the jury found Barnett was an employee of Bayer. Given the facts of this case, we hold the jury’s “Yes” answer to this question necessarily included a finding that on the occasion in question Barnett was negligent.

Next, Bayer argues that the trial court’s instruction in question number four with respect to control is legally incorrect regarding how the issue of control was applied to Bayer. Our record does not reflect that Bayer submitted either a correct instruction with respect to the control issue nor that it objected to the instruction given on the basis that it now asserts. Consequently, its objection to the instruction is waived. Tex. R. Civ. P. 274; M.L.C. Loan Corp. v. P.K. Foods, Inc., 541 S.W.2d 902, 905 (Tex.Civ.App.—Beaumont 1976, no writ).

Bayer also asserts there is no evidence to support the jury’s answer to question four because there is no evidence, or, alternatively, insufficient evidence, to support the jury’s finding that it was negligent. In addition to the evidence that we have already outlined, there was testimony from John Barnett, the forklift driver, that pushing up pallets with the forklift while someone is standing on the pallets is something that happens every day. He indicated that the pallets have to be pushed up or the person making the boxes cannot finish the job. We hold the evidence as we have outlined it is sufficient to support the jury’s finding that Bayer was negligent. Considering all of the evidence presented, we hold the jury’s finding of negligence on the part of Bayer is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule Bayer’s contentions as contained in issues two and three.

Bayer urges in issue four the trial court committed reversible error in instructing the jury in question number seven as to Bayer’s negligence. Question 7 was submitted as follows:

Do you find from a preponderance of the evidence that Bayer Corporation (Miles, Inc.) was negligent?
You are instructed that an employer is liable for the negligence of its employees.
Answer “Yes” or “No.”
Answer: _

Bayer complains the instruction is legally incorrect because an employer is not always liable for the negligence of its employee and because it is a comment on the weight of the evidence and a directed verdict against Bayer on the issue of Barnett’s negligence. Bayer objected to this issue on the basis that as a matter of law it was not Barnett’s employer and because Barnett was guilty of horseplay that took him out of the course and scope of his employment. The accompanying instruction to question 6 defined the term employee and also instructed the jury as to when an employee is not acting within the scope of employment. In response to that question, the jury found that Bayer was Barnett’s employer. In its answer to that question, then, the jury necessarily found that Bayer was in fact Barnett’s employer and that Barnett was not acting outside the course and scope of his employment at the time of the incident in question.

It could be that question 7 should have been conditioned upon an affirmative answer, with respect to Bayer, of question 6. We hold that in view of question 6 with its accompanying instructions, and the jury’s answer thereto, any error in including the instruction of which Bayer complains was not such an error as probably caused the rendition of an improper judgment or prevented Bayer from properly presenting its case to the court of appeals. See Tex R.App. P. 44.1.

Bayer also contends Ammean submitted the case as a premises liability case, as opposed to a negligent activity case. Question 4 asked concerning Bayer’s negligence as an owner or occupier of the premises and as a general contractor.

The definition portion of the charge defined “negligence” in the standard way as “failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.” “Negligence” was also defined, with respect to Bayer’s conduct as an owner or occupier of premises, as “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by an activity that the owner or occupier knows about, or in the exercise of ordinary care, should know about.” Bayer’s objection to the charge was that there was no evidence of premises liability, not that the charge improperly submitted the issue of a premises liability case based upon negligent activity. We hold error was not preserved because the issue on appeal differs from the objection at trial. See Weidner v. Sanchez, 14 S.W.3d 353 (Tex.App.—Houston [14th Dist.] 2000, n.p.h.) (not yet released for publication). Even if the issue was preserved, we hold the additional definition of negligence is sufficiently similar to the standard negligence definition that its inclusion in the charge did not probably cause the rendition of an improper judgment or prevent Bayer from properly presenting its case on appeal.

Bayer relies upon the case of Keetch v. Kroger Co., 845 S.W.2d 262 (Tex.1992). In Keetch, the court held that the trial court, in a premises liability case based upon a premises condition, did not err in asking the jury whether the premises owner knew of the condition because the creation of the condition by the owner did not establish, as a matter of law, that the owner had knowledge of the condition. Id. at 266. The court also held the plaintiff failed to preserve any error with respect to the use of a broad form question. Id. at 267. We find nothing in Keetch to be inconsistent with this opinion. We overrule Bayer’s contentions as contained in issue four.

Bayer insists in issue five the evidence is legally, or, alternatively, factually insufficient to support an award for future loss of earning capacity. The jury found damages for future loss of earning capacity in the amount of $100,000. In a personal injury suit the amount of a plaintiffs future loss of earning capacity is always uncertain, and must be left largely to the sound judgment and discretion of the jury. See McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712 (1943). While the jury is given much discretion, it should not be left to mere conjecture where facts appear to be available upon which the jury could base an intelligent answer. See Bonney v. San Antonio Transit Co., 160 Tex. 11, 325 S.W.2d 117, 121 (1959). The injured party is required to introduce sufficient evidence to enable the jury to reasonably measure earning capacity prior to the injury. See City of Houston v. Howard, 786 S.W.2d 391, 395-96 (Tex.App.—Houston [14th Dist.] 1990, writ denied).

Ammean was thirty-two years of age at the time of trial. He testified he had earned as much as $11.18 per hour in New Jersey in a heavy lifting job before moving to Texas and starting work for Texas Contractors at the rate of $6.17 per hour. The evidence showed Ammean had surgery after his injury and had permanent restrictions with respect to his employment. His surgeon indicated he should be able to lift in the 30-40 lb. range and would need to have a job with freedom of motion to avoid stiffness in his back. The doctor also indicated he would be better working at or above knee level and at or below shoulder level. There is evidence Ammean was earning more money after the accident than he was before the accident. Finding this is sufficient evidence to enable the jury to reasonably determine .Ammean’s future loss of earning capacity, we hold the evidence is both legally and factually sufficient to support the jury’s award. We overrule Bayer’s contentions as presented in issue five.

The judgment in favor of Richard Am-mean as to Texas Industrial Contractors, Inc. is reversed and judgment rendered that Richard Ammean take nothing as to it. The judgment of Richard Ammean as to Bayer Corporation, successor to Miles, Inc., Polysar Rubber Division, is affirmed.

REVERSED AND RENDERED IN PART; AFFIRMED IN PART.

      . At the time it was called Miles Polysar Rubber Division.