author: SANDEE BRYAN MARION, Justice.

text:
    EXXONMOBIL CORP. f/k/a Mobil Oil Corp., AIG Risk Management, Inc., American Home Assurance Co., American International Group, Inc., Insurance Company of the State of Pennsylvania, National Union Fire Insurance Company of Pittsburgh, PA, Appellants, v. Lonzo KIRKENDALL & Patricia Wagner, Appellees.
    No. 04-03-00531-CV.
    Court of Appeals of Texas, San Antonio.
    Sept. 22, 2004.
    Rehearing Overruled Oct. 22, 2004.

      David M. Gunn, David J. Beck, Fields Alexander, Thomas E. Ganucheau, Beck, Redden & Secrest, L.L.P., Houston, Ben Taylor, Fulbright & Jaworski L.L.P., Robert B. Wellenberger, Thompson, Coe, Cousins & Irons, L.L.P., Dallas, Greg Smith, Ramey & Flock, P.C., Tyler, Robert Q. Keith, Keith & Weber, P.C., Johnson City, for appellants.
    John G. Werner, Curtis W. Leister, Glen W. Morgan, Bob Wortham, Reaud, Morgan & Quinn, L.L.P., James M. Harris, Jr., Harris, Lively <& Duesler, L.L.P., Lipscomb Norvell, Jr., Beckenstein, Nowell & Nathan, L.L.P., George E. Bean, Chambers, Templeton, Cashiola & Thomas, L.L.P., Beaumont, Harvey Ferguson, Chaves, Gonzales & Hoblit, L.L.P., San Antonio, for appellees.
    Sitting: PAUL W. GREEN, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

ON APPELLEE’S MOTION FOR REHEARING

Opinion by

SANDEE BRYAN MARION, Justice.

In an opinion and judgment dated July 7, 2004, we reversed the trial court’s judgment in favor of appellees, Lonzo Kirken-dale and Patricia Wagner, and rendered a take-nothing judgment in favor of appellants. The appellees filed a motion for rehearing in which they assert rendition was improper and, instead, this court should have remanded the cause for further proceedings on certain “pretermitted” causes of action. Appellants filed a response in which they objected to appellees’ requested relief. We agree with appellees and accordingly grant the motion for rehearing. Therefore, we vacate our earlier judgment, withdraw our earlier opinion, and issue this opinion and judgment in their place.

Appellants (hereinafter “Mobil”) appeal from the trial court’s judgment in favor of appellees, Lonzo Kirkendall and Patricia Wagner. At trial, appellees argued Mobil committed fraud on its employees by falsely claiming it had genuine workers’ compensation insurance. The jury agreed, and based on the jury’s findings, the trial court determined Mobil was not a subscriber under the Texas Workers’ Compensation Act (the “TWCA”). Further, the trial court concluded the TWCA’s exclusive remedy provision did not bar appel-lees’ common-law negligence claims. The jury found that Mobil’s negligence proximately caused appellees’ injuries, and awarded appellees actual and exemplary damages for their work-place injuries. However, because (1) Mobil proved its subscriber status as a matter of law and (2) appellees’ fraud claims are immaterial to that status, we reverse and render a take-nothing judgment in favor of appellants.

BACKGROUND

The underlying litigation began in 1992 in the 58th Judicial District Court of Jefferson County. The litigation originally proceeded as a class action suit, but following the trial court’s decertification of the class, it ultimately became a mass tort case with hundreds of named plaintiffs. Appel-lees Kirkendall and Wagner are the first two plaintiffs to have their cases tried, which involved injuries that occurred in the course and scope of appellees’ employment while working at Mobil’s factory in Beaumont, Texas. Appellees claimed no-fault workers’ compensation benefits for their alleged injuries and received workers’ compensation benefits for all uncon-troverted claims. Subsequent to receiving their workers’ compensation awards, ap-pellees brought this suit seeking the difference between the workers’ compensation benefits they received and the amounts they alleged they could have received under the common-law. Appellees alleged Mobil deprived them of their common-law claims by falsely representing that it was a subscriber to the TWCA, and thus not entitled to the exclusive remedy provision. In addition to Mobil, appellees also named as defendants Mobil’s insurance carriers during the years appellees were injured. During those years, Mobil obtained its workers’ compensation insurance from several different companies. Pre-1970 through 1981, Mobil’s insurer was Forum; from 1982 through 1991, Mobil’s insurer was National Union; in 1992, Mobil’s insurer was American Home Assurance Company; and, in 1998, Mobil’s insurer was ICSOP. The latter three insurers are members of the American International Group of Companies.

The trial court divided the trial into two parts. The first phase of the trial dealt with the issue of Mobil’s subscriber status and appellees’ fraud claims. During the first phase, appellees argued that, even though they received workers’ compensation benefits, Mobil deprived them of their right to bring suit under the common-law by fraudulently misrepresenting to them that it had “genuine” workers’ compensation insurance when it in fact did not. Appellees also argued that Mobil and its insurance carriers violated certain insurance regulations and that these violations caused Mobil to forfeit its subscriber status. Mobil argued that it had valid workers’ compensation insurance, and therefore, the workers’ compensation system’s exclusive remedy provision barred appel-lees’ claims. At the conclusion of the first phase of the trial, the jury answered affirmatively that Mobil committed fraud on appellees. In accordance with the jury’s answers, the trial court’s order stated that Mobil did not have “genuine” workers’ compensation insurance in place at the time of the injuries and as a result, Mobil was not entitled to the exclusive remedy provision. Based on this conclusion, the trial court proceeded with the second phase of the trial, which focused on appel-lees’ on-the-job injuries. At the conclusion of the second phase, the jury awarded appellees both actual and exemplary damages for their injuries. Appellants filed a motion to disregard the jury’s findings and a motion for judgment n.o.v., arguing that at all times, it was a subscriber. The trial court denied both motions and entered judgment in favor of appellees. This appeal by Mobil ensued.

STANDARD OF REVIEW

Mobil argues that because it proved its subscriber status as a matter of law, the trial court erred in denying its motion for judgment n.o.v. We treat the determination of an employer’s status as a subscriber as a question of law. See United E. & W. Oil Co. v. Dyer, 144 S.W.2d 989, 992 (Tex.Civ.App.-Texarkana 1940), aff'd, 139 Tex. 318, 162 S.W.2d 680 (1942). We review questions of law using a de novo standard of review. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex.1997). Further, a.trial court may render judgment n.o.v. when it could have properly granted a directed verdict. Tex.R. Civ. P. 301; Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991). Therefore, the trial court should grant a motion , for judgment n.o.v. when the evidence is conclusive and one party is entitled to judgment as a matter of law. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227-28 (Tex.1990); Quaker Petroleum Chems. Co. v. Waldrop, 75 S.W.3d 549, 553 (Tex.App.-San Antonio 2002, no pet.).

SUBSCRIBER STATUS

We must first determine if Mobil was a subscriber when appellees sustained their injuries at work. Mobil alleges it was a subscriber at all times during appel-lees’ injuries thereby precluding their common-law claims. In addition, Mobil contends the jury’s fraud findings are immaterial to its status as a subscriber.

A subscribing employer is “... a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Tex. Lab.Code ANN. § 401.011(18) (Vernon Supp.2004). “An employer may obtain workers’ compensation insurance coverage through a licensed insurance company or through self-insurance as provided by this subtitle.” Id. at § 406.003 (Vernon 1996). Therefore, in order for an employer to satisfy its burden of establishing its status as a workers’ compensation subscriber, it must prove that, at the time its employees sustained their injuries, it had workers’ compensation insurance in effect from an insurance company authorized to write workers’ compensation insurance in the State of Texas. See Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); see also Patterson v. Mobil Oil Corp., 335 F.3d 476, 488 (5th Cir.2003). In addition to obtaining authorized insurance, the TWCA requires an employer to notify its employees whether it has workers’ compensation insurance. See Tex. Lab. Code Ann. § 406.005. “Employees of subscribing employers may choose to opt out of the system and retain their common-law rights in the event they are injured on the job.” Lawrence v. CDB Servs., Inc., 44 S.W.3d 544, 552 (Tex.2001); Tex. Lab.Code ANN. § 406.034(b). However, the exclusive remedy for an employee who does not opt out is the recovery of workers’ compensation benefits for personal injuries sustained in the course of employment. Tex. Lab.Code Ann. § 408.001(a). Here, there is no dispute that Mobil provided notice to its employees and neither of the appellees opted out of the system. Therefore, if Mobil was a subscriber, the TWCA’s exclusive remedy provision bars appellees common-law negligence claims. See id.

In order to prove its subscriber status, Mobil offered (1) a copy of the policies Mobil had obtained from National Union that were in effect when Wagner sustained her injuries in 1984 and 1988 and (2) a copy of the policy Mobil had obtained from ICSOP that was in effect when Kirkendall sustained his injuries in 1993. Mobil also offered into evidence certificates, with supporting affidavits, from the Texas Commissioner of Insurance stating National Union and ICSOP had authority “to transact the business of ... workers’ compensation ... insurance within the State of Texas.” In response to this showing, appellees stipulated that both insurance companies were authorized insurers in the State of Texas. Therefore, we conclude Mobil’s evidence established, as a matter of law, that it had insurance from an authorized insurance company and, accordingly, Mobil complied with the statutory requirements to become a subscriber as a matter of law under the TWCA.

JURY’S FRAUD FINDINGS

On appeal, appellees argue that while Mobil presented proof of insurance policies, those policies themselves were merely “sham” contracts, and therefore, not valid. Appellees argue the contracts were a sham because Mobil committed fraud by: (1) failing to transfer the risk of loss to an insurer; (2) allowing its employees to adjust the claims of other Mobil employees; and (3) representing to its employees that Mobil had “genuine” workers’ compensation insurance when it did not. Therefore, according to appellees, Mobil’s fraud caused it to forfeit its status as a subscriber to the TWCA. We disagree. Instead, as discussed below, we believe the jury’s fraud findings are immaterial to an employer’s subscriber status under the TWCA.

Effect of Failure to Transfer Risk of Loss on Mobil’s Subscriber Status

Appellees first argue that Mobil forfeited its subscriber status because it structured its workers’ compensation program through a variety of side agreements with its insurance carriers in a way that failed to transfer the risk of loss to the carrier. Appellees contend that Mobil engaged in a cash-flow retrospective plan whereby Mobil had the insurer file a conventional retrospective rated insurance policy with the state, but it did not actually pay the premium indicated by the policy. Instead, Mobil payed a fraction of that premium to cover the insurer’s expected losses paid, expenses, insurance risk premium, and premium taxes. Mobil also issued letters of credit to the insurer for the difference between the conventional premium and the amount actually paid. Mobil reinsured the insurer’s risk through an offshore subsidiary. Therefore, Mobil and its reinsurance subsidiary became the true insurers of the risk associated with Mobil’s workers’ compensation program. Appel-lees argue that because this alleged scheme was pervasive throughout the process and not simply a few random occurrences, the side agreements were the real contracts, making the actual insurance policies sham contracts. Appellees assert that because Mobil and its insurers had a sham contract between them, appellees, as third parties, are entitled to deny the existence of the policies.

Mobil argues that this alleged plan did not affect its subscriber status because, under Texas law, the side agreements are immaterial. We agree. The validity of a workers’ compensation insurance policy is an issue of law judged from the policy itself. See Tankersley v. Durish, 855 S.W.2d 241, 247-48 (Tex.App.-Austin 1993, writ denied). The mere presence of an illegal side agreement does not invalidate a policy. Id; Associated Employer Lloyds v. Dillingham, 262 S.W.2d 544, 546 (Tex.Civ.App.-Fort Worth 1953, writ ref d). When the policy does not incorporate the illegal agreement, but instead is apart from it, the policy itself is valid. Brookshire Grocery Co. v. Bomer, 959 S.W.2d 673, 676 (Tex.App.-Austin 1997, pet. denied). Further, the Texas Insurance Code provides “... any contract or agreement not written into the application of the policy shall be void and of no effect ...” Tex.Rev.Civ. Stat. Ann. Insurance Code art. 5.57 (Vernon 1981). Further, any side agreement to a valid and enforceable workers’ compensation policy that violates a statutory or regulatory requirement is invalid and ineffective. Brookshire, 959 S.W.2d at 676; see also Tex.Rev.Civ. Stat. ANN. Insurance Code art. 5.57. Therefore, while Mobil’s plan most likely violates an administrative rule, nothing in Texas law provides that this violation causes an employer to forfeit its subscriber status. See Patterson, 335 F.3d at 489-90, n. 13 (noting that even though the State Board of Insurance has formally forbidden such a plan, the use of this arrangement did not affect an employer’s status as a subscriber). Because Mobil’s alleged cash-flow retrospective plan is not incorporated into any of its policies, the policies themselves remain valid. See Patterson, 335 F.3d at 490-91. Therefore, we conclude the jury’s finding that Mobil failed to transfer the risk of loss for its workers’ compensation claims to an authorized insurance carrier is immaterial to Mobil’s subscriber status.

Claims Adjusted by Employees and its Effect on Mobil’s Subscriber Status

Appellees next argue that Mobil forfeited its subscriber status by imper-missibly allowing its employees to adjust the workers’ compensation claims of other employees. Appellees base their arguments on the nature of the relationship between Mobil and its insurance carriers. Because Mobil’s insurance carriers were subsidiaries of Mobil, appellees argue that the insurance carriers’ agents were acting as Mobil employees.

An employer may not dictate the methods by which, and the terms on which, a claim is handled and settled. 28 Tex. Admin. Code § 65.10(1)(I) (2003). The TWCC deems such conduct as unethical or fraudulent and the Commission may bar a person who is guilty of unethical or fraudulent conduct from practicing before the Texas Board of Insurance. Id. at § 65.5. Appellees assert that Mobil’s use of its own employees to handle claims violates the Commission’s regulatory rule, which amounts to fraud. However, appellees do not point to any case law supporting their argument that this violation precluded Mobil from maintaining its subscriber status. Further, nowhere in the workers’ compensation system does such a violation result in an employer forfeiting its subscriber status.

Instead, the workers’ compensation system creates a level of certainty for employees by ensuring that an employer’s violation of the State’s various administrative rules and regulations will not deprive workers of the benefits under the system. See e.g. Larchmont Farms, Inc. v. Parra, 941 S.W.2d 93, 95 (Tex.1997) (concluding that Texas has an interest in maintaining a stable workers’ compensation system). Throughout the system’s provisions dealing with various violations under the TWCA or other rules, the act imposes only administrative and civil penalties or a bar from practicing before the Commission. See e.g. Tex. Lab.Code Ann. § 415.001 et seq.; 28 Tex. Admin. Code §§ 65.5, 65.10. Therefore, even though Mobil’s practices may have violated certain administrative rules, nothing in Texas law indicates, or supports, the conclusion that those violations caused Mobil to forfeit its subscriber status. See Patterson, 335 F.3d at 492. Accordingly, we conclude that the jury’s finding that Mobil committed fraud by allowing its employees to adjust the claims of other employees is immaterial to Mobil’s subscriber status.

“Genuine” Insurance

Finally, appellees argue that Mobil did not have “genuine” workers’ compensation insurance between the years of 1965 to 1981 because Mobil obtained insurance from its subsidiary, Forum. Ap-pellees argue this amounted to nothing more than self-insurance. Further, appellees argue that between the years of 1982 to 1993, Mobil did not have “genuine” insurance because it reinsured its insurance coverage through several financial devices. Although appellees repeatedly referred to “genuine” workers’ compensation insurance during the trial, submitted a question to the jury on “genuine” insurance, and argued before this court that Mobil’s policies were not “genuine,” Texas law makes no such distinction, or defines, workers’ compensation insurance as “genuine” insurance. Appellees conceded during arguments before this court that they use the term “genuine” to mean “legitimate” insurance policies. However, the determination of the policies’ “genuineness” or legality is a question of law for the court to decide. See Tankersley, 855 S.W.2d at 247-48. By statute, an employer either obtains insurance from an authorized insurance carrier or it does not. If the employer does not obtain the policy from an authorized insurer, it does not have insurance for purposes of the TWCA. Here, Mobil complied with the statutory requirements by obtaining policies from authorized insurers in the State of Texas. Therefore, because Mobil complied with the statute and the genuineness of a workers’ compensation insurance policy is a question of law, we conclude the jury’s finding that Mobil did not have “genuine” insurance is immaterial to Mobil’s subscriber status.

CONCLUSION

We believe that appellees’ fraud complaints are, in reality, allegations of regulatory violations and as such, the task of assessing the appropriate sentence for such violations lies with the agency responsible for the policing of the workers’ compensation system. However, for the purposes of determining whether the TWCA’s exclusive remedy provision bars appellees’ common-law claims, we conclude appellees’ claims of fraud are immaterial to Mobil’s subscriber status. Because Mobil satisfied the statutory requirements to become a subscriber, it is entitled to the exclusive remedy provision of the TWCA. See Tex. Lab.Code Ann. § 408.001(a); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985). Therefore, appellees’ claims for common-law negligence are barred as a matter of law.

During the first phase of trial, in addition to their negligence claims, appellees also alleged in the alternative bad-faith claims-handling practices and appeals from the TWCC’s denial of a claim by Kirken-dall and a partial award in favor of Wagner. The trial court and the parties all agreed that if Mobil was found not to be a subscriber, then phase one of the trial would proceed on appellees’ negligence claims. On the other hand, if Mobil was found to be a subscriber, then phase one would proceed on the alternate causes of action. The trial court signed a pre-trial order specifically setting forth the manner in which trial would proceed.

Because the jury determined Mobil was not a subscriber, the alternate causes of action were never tried. Our reversal of the trial court’s judgment and our determination in Mobil’s favor on the issue of its subscriber status entitles appellees to a remand to the trial court for further proceedings as set forth in the trial court’s pre-trial order. Accordingly, we reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.

      . Appellants consist of two different groups:

        The Mobil Parties:

      Mobil Oil Corp. (the employer)
      Mobil Corp. (the employer’s parent company)

        Mobil’s workers’ compensation insurance carriers:

      Forum Insurance Company (hereinafter "Forum”) (not subject to this appeal)
      National Union Fire Insurance Company of Pittsburgh (hereinafter "National Union”)
      American Home Assurance Company
      The Insurance Company of the State of Pennsylvania (hereinafter “ICSOP”)
      AIG Risk Management
      American International Group, Inc. (a parent company, hereinafter "AIG”)
      Appellees also sued Glenda Matous and Robert Gronwaldt, representatives of AIG who handled Mobil’s workers' compensation claims, individually and as agents of Mobil. The trial court did not enter judgment against them, therefore, they are not parties to this appeal.

      . In 1988, Kirkendall claimed workers’ compensation benefits from Mobil's insurance carrier, National Union, for an operation on his carpal tunnel syndrome. The insurance carrier did not controvert the claim and paid Kirkendall his benefits. In 1991, Kirkendall sought additional benefits for a general injury to his body as a result of the carpal tunnel syndrome. However, National Union controverted this claim. The Texas Workers' Compensation Commission (the "TWCC”) denied his claim and Kirkendall appealed. Kirken-dall's third and final claim involved an injury to his elbow, which he sustained in 1993. He claimed workers’ compensation benefits from Mobil’s insurance carrier, ICSOP. ICSOP did not controvert the claim and Kirkendall received his benefits. In 1984, Wagner claimed workers’ compensation benefits from National Union for an injury she sustained to her finger. National Union did not controvert the claim and paid her workers’ compensation benefits. In 1988, Wagner underwent surgery for carpal tunnel syndrome. She did not file a claim against National Union until 1993. National Union controverted the claim and the TWCC entered an award from which both National Union and Wagner appealed.
      Because the appellees’ injuries occurred in different years, the period of time involved in this litigation spans two separate workers' compensation systems. The Legislature codified the old act, adopted in 1914 and repealed in 1991, in the Texas Revised Civil Statutes Annotated articles 8306 et seq. The old act continues to govern claims for pre-1991 injuries. See Acts 1989, 71st Leg., 2nd C.S., Ch. 1, § 17.18(c),(d). The Legislature codified the current system in the Texas Labor Code sections 401 et seq. Any differences between the two acts are not material to this appeal. In addition, neither party argues the differences between the systems are controlling. Therefore, we will make all remaining references to the TWCA using the Texas Labor Code.

      . When the Legislature codified the TWCA into the Labor Code, it deleted the term "subscriber" from the TWCA and expanded the definition of "employer” to "a person who makes a contract of hire, that employs one or more employees, and that has workers’ compensation insurance coverage.” See Brown v. Aztec Rig Equip., Inc., 921 S.W.2d 835, 840 (Tex.App.-Houston [14th Dist.] 1996, writ denied). For purposes of this appeal, we will use the term "subscriber” for the sake of uniformity.


source: Caselaw Access Project

author: TERRIE LIVINGSTON, Justice.

license: Public Domain

text:
    Clifford B. RODGERS, Appellant, v. The COMMISSION FOR LAWYER DISCIPLINE, Appellee.
    No. 2-03-072-CV.
    Court of Appeals of Texas, Fort Worth.
    Sept. 23, 2004.
    Rehearing Overruled Nov. 24, 2004.

      Culp & Dyer, L.L.P., Marc S. Culp, Denton, for Appellant.
    Haynes and Boone, L.L.P., Mark R. Trachtenberg, Houston, Linda A. Acevedo, Asst. Disciplinary Counsel, Austin, for Ap-pellee.
    PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
   OPINION

TERRIE LIVINGSTON, Justice.

This is an appeal from a jury verdict finding that appellant Clifford B. Rodgers violated the State Bar of Texas rules of professional conduct regarding trade name usage, false or misleading advertising, required advertising disclosures, and filing of advertising with the State Bar. See Tex. Disciplinary R. PROf’l Conduct 7.01(a), (e), 7.02(a), 7.04(b), O'), 7.07(b), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 1998) (Tex. State BáR R. art. X, § 9). After a jury found that Rodgers violated all of these rules, the trial court determined that Rodgers should receive a two-year, fully probated suspension of his law license.

In six issues on appeal, Rodgers contends that (1 & 2) the evidence is legally and factually insufficient to support the jury’s findings that he violated the trade name and false or misleading advertising rules, (3) as a matter of law he did not violate the disclosure rule, (4) as a matter of law he did not violate the filing of advertising rule because the advertisement was either exempt from the filing requirement or because appellee the Commission for Lawyer Discipline (CLD) did not conclusively prove that it was not exempt, (5) the trial court abused its discretion in admitting the testimony of CLD’s expert, and (6) the trial court abused its discretion in assessing Rodgers’s punishment. Because we determine that the evidence is sufficient to prove that Rodgers violated the trade name and false or misleading advertising rules, that the jury’s verdict regarding whether he violated the disclosure rule controls, that the advertisement was not exempt from the fifing rule and CLD did not have the burden to prove it was, and that the trial court did not abuse its discretion in admitting the expert testimony of Lynette Fons or setting punishment, we affirm the trial court’s judgment.

Background Facts

In 1994 Rodgers began running an advertisement in the Southwestern Bell Yellow Pages under the name “Accidental Injury Hotline.” The advertisement was located in the “Attorney Referral & Information Serv” section of the book. The advertisement did not list Rodgers’s or any other attorney’s name, nor did it make any other disclosures required by the rules. See Tex. DisciplinaRy R. PROf’l Conduct 7.04. It did contain a telephone number and list of topics regarding what to do in case of accident or injury.

After pressing the code number next to one of the topic listings, the caller was directed to a prerecorded message advising the caller about that specific topic. At the end of each prerecorded message, the caller was prompted as follows: “To arrange a free, no obligation consultation about your case with an attorney, now press ‘0’.” If the caller pressed 0, the call was forwarded to Rodgers’s office, with the following recording:

Your call is being forwarded to the Fort Worth office of attorney Clifford Rodgers, the sponsor of the Accidental Injury Hotline, which is copyrighted 1994 by him.
He is licensed to practice law by the Texas Supreme Court and is not certified by the Texas Board of Legal Specialization.
This is an advertisement.

If the call took place after office hours, the caller was prompted to either press the “ * ” key for emergency matters or to leave a message.

Rodgers subsequently received a letter from the State Bar dated August 15, 1994, which indicated that the Bar had initiated a grievance committee complaint against Rodgers about the advertisement. The letter indicated that the advertisement was “alleged to be in violation of [former] Rule 7.04 Texas Disciplinary Rules of Professional Conduct, in that said rule forbids attorneys from practicing under a trade name or a name that is misleading as to the identity of the lawyer or lawyers practicing under that name.” See former Tex. DISCIPLINARY R. Peof’l Conduct 7.04, 777-778 S.W.2d (Tex. Cases) CXV (1990, superseded 1995) (current version at Tex. Disci-plinaey R. PROf’l Conduct 7.01(a)). Rodgers later received a letter indicating that an investigatory panel of the grievance committee found that he had not committed professional misconduct and that the matter had been dismissed. However, the letter also warned that “the complainant has the right to amend the complaint and refile with new information.”

In 1995, new rules of professional disciplinary conduct regulating attorney advertising became effective. 892-893 S.W.2d (Tex. Cases) XXXIII (1995) (providing that rules would become effective 120 days after judgment in Texans Against Censorship); see Texans Against Censorship, Inc. v. State Bar of Tex., 888 F.Supp. 1328 (E.D.Tex.1995) (judgment date March 31, 1995). The new rules imposed additional regulations on attorney advertising, including, among other things, prohibiting an attorney from advertising under a trade name and requiring all attorney advertising — with certain enumerated exceptions — to be filed with an advertising review committee of the State Bar. See Tex. DisciplinaRy R. Prof’l Conduct 7.01(e), 7.07. Rodgers was aware of the new rules and continued to run his advertisements. He did not send copies to the review committee for approval.

In 1997, a few days before the deadline for approving copy for the upcoming publication of the Southwestern Bell Yellow Pages, Rodgers was contacted by a representative of Southwestern Bell, who told Rodgers that — based on its communications with the Bar — it could no longer run his advertisement under the “Attorney Information Referral Service” heading.

Rodgers filed suit against the State Bar and Southwestern Bell and obtained a temporary order restraining the Bar from talking to Southwestern Bell and telling it not to run Rodgers’s advertisement and restraining Southwestern Bell from printing the directory without the advertisement in it. After a hearing, Rodgers and Southwestern Bell entered into a rule 11 agreement to run the advertisement with a disclaimer indicating that the advertisement was not a referral service, but an information service. See Tex.R. Civ. P. 11. The State Bar was not a party to the rule 11 agreement. Rodgers then nonsuited the litigation.

Rodgers subsequently ran the advertisement in the 1997 Southwestern Bell Yellow Pages, GTE Everything Pages, and Tran-swestern World Pages. CLD initiated the grievance process against Rodgers in 1998 and filed this suit in November 1999.

Whether the Law of the Case Doctrine Applies

CLD initially contends that Rodgers’s legal insufficiency challenges are barred by the law of the case doctrine. Another panel of this court has previously decided that CLD brought forward sufficient evidence to survive a no-evidence summary judgment filed by Rodgers during this litigation. See Com’n for Lawyer Discipline v. C.R., 54 S.W.3d 506, 518 (Tex.App.-Fort Worth 2001, pet. denied). CLD argues that because in order to survive a no-evidence summary judgment, the nonmovant must bring forward more than a scintilla of evidence on the challenged issue — and because in order for a jury finding to be legally sufficient there must be more than a scintilla of evidence supporting it — this court’s prior ruling in the no-evidence summary judgment portion of this case controls. We disagree.

The law of the case doctrine is defined as “that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages.” Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex.2003) (citing Hudson v. Wake-field, 711 S.W.2d 628, 630 (Tex.1986)). The doctrine prohibits relitigation of a question of law unless (1) the earlier holding is clearly erroneous or (2) the later stage of litigation presents different parties, different issues, or more fully developed facts. Id. at 716-17; Hudson, 711 S.W.2d at 630.

Here, the determination of whether more than a scintilla of evidence is shown in the record is being made at two different stages of litigation and may involve more fully developed facts at either stage. When reviewing a no-evidence summary judgment motion, we may consider only the summary judgment record. See Brookshire v. Longhorn Chevrolet Co., 788 S.W.2d 209, 213 (Tex.App.-Fort Worth 1990, no writ); see also Tex.R. Civ. P. 166a(i) & cmt.-1997 (providing that trial court must grant motion unless respondent produces “summary judgment evidence” raising a genuine issue of material fact and noting that “[t]he existing rules continue to govern the general requirements of summary judgment practice”). When reviewing the legal sufficiency of the evidence to support a jury finding, we may review only the evidence introduced at trial. See Town of Sunnyvale v. Mayhew, 905 S.W.2d 234, 258 (TexApp.-Dallas 1994), rev’d on other grounds, 964 S.W.2d 922 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); Noble Exploration, Inc. v. Nixon Drilling Co., 794 S.W.2d 589, 592 (Tex.App.-Austin 1990, no writ). It is possible that evidence considered at summary judgment may not have been introduced into the record at trial or vice versa. Thus, we do not believe the law of the case doctrine is applicable here. We will review the sufficiency of the evidence based on the evidence adduced at trial.

Legal and Factual Sufficiency of Evidence to Prove Violation of Trade Name and False or Misleading Advertising Rules

Standard of Review

In determining a “no-evidence” issue, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cazarez, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

A “no-evidence” issue may be sustained only when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998) (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999).

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

Violation of Trade Name Rule

Rule 7.01(a) provides that “[a] lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm.” Tex.R. DisciplinaRY Conduct 7.01(a). Rule 7.01(e) provides that “[a] lawyer shall not advertise in the public media or seek professional employment by written communication under a trade or fictitious name.” Id. 7.01(e). Rodgers contends that the trade name rule prohibits only the use of deceptive trade names and that rule 7.01(a) defines trade name as “a name that is misleading as to ... identity.”

We reject Rodgers’s interpretation of rule 7.01(a). By its plain language, the rule prohibits a lawyer’s use of three types of names: (1) a trade name; (2) a name that is misleading as to the lawyer’s identity; or (3) a firm name with names other than those of the lawyers in the firm. Id. 7.01(a); see Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998) (providing that “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage”). We have previously defined a “trade name” as “a designation that is adopted and used by a person either to designate a good he markets, a service he renders, or a business he conducts.” C.R., 54 S.W.3d at 515. Moreover, comment 1 to rule 7.01 notes that “[t]rade names are inherently misleading.” TEX.R. DISCIPLINARY CONDUCT 7.01 cmt. 1. And, in ruling that rule 7.01 does not infringe on the First Amendment’s protection of commercial speech, a federal district court has recognized the inherent risks of even a nondeceptive trade name used in attorney advertising because, by not identifying the name of the professional practicing under the trade name, the name frees the professional from dependence on his own personal reputation. Texans Against Censorship, Inc., 888 F.Supp. at 1350 (analogizing to United States Supreme Court opinion regarding risks of use of nondeceptive trade name in optometrists’ practices and holding rule limiting use of trade names constitutional). Thus, we conclude that to be prohibited under rule 7.01 a trade name does not have to be facially deceptive.

The evidence at trial showed that the advertisements Rodgers placed in the telephone books contained the name “Accidental Injury Hotline,” but not Rodgers’s name or any other attorney’s name. Rodgers obtained a copyright on the name “Accidental Injury Hotline,” registered a service mark for the hotline, and received more than fifty percent of his business from the hotline. Rodgers admitted to starting the hotline solely as an advertisement for his business because he thought “informational positioning,” or providing helpful information to consumers to position the provider as knowledgeable, was the best way to obtain customers through advertising. The evidence also showed that the only place Rodgers used the name was in the advertisements; however, the fact that Rodgers used the name in only one facet of his business does not outweigh the evidence that with regard to the only medium in which he advertised his business, he used the name to designate a service he rendered or a business he conducted. We hold that the evidence is both legally and factually sufficient to prove Rodgers violated rule 7.01(a) and (e). We overrule Rodgers’s second issue.

Violation of False or Misleading Advertising Rule

Rodgers further contends that the evidence is legally and factually insufficient to prove that he violated rule 7.02(a) by making a false or misleading communication. Rule 7.02 provides as follows:

(a) A lawyer shall not make a false or misleading communication about the qualifications or the services of any lawyer or firm. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate these rules or other law;
(3) compares the lawyer’s services with other lawyers’ services, unless the comparison can be substantiated by reference to verifiable, objective data;
(4) states or implies that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official; or
(5) designates one or more specific areas of practice in an advertisement in the public media or in a written solicitation unless the advertising lawyer is competent to handle legal matters in each such area of practice.

TEX.R. DISCIPLINARY Conduct 7.02(a).

Rodgers claims that federal case law regarding the Lanham Act and trademark infringement cases required CLD to introduce evidence that at least one person was actually confused by Rodgers’s advertisement. But Rodgers cites no authority applying this requirement outside the context of those cases, including the attorney disciplinary context. And the only case this court found addressing this issue in the professional disciplinary-advertising context concluded that the State of Maryland did not have to prove that a specific customer had been misled or deceived by the advertising. See Barnett v. Md. State Bd. of Dental Exam’rs, 293 Md. 361, 444 A.2d 1013, 1020 (1982).

Rule 7.02 itself does not require evidence of actual confusion. In the only other reported case from this State that we have found, Musslewhite v. State Bar of Texas, 786 S.W.2d 437 (Tex.App.-Houston [14th Dist.] 1990, writ denied), cert. denied, 501 U.S. 1251, 111 S.Ct. 2891, 115 L.Ed.2d 1056 (1991), the court held that an attorney’s press release, letters, and advertisements were false and misleading on their face because they referred to a “team of internationally renowned U.S. lawyers” but did not identify those lawyers, and the information in them was not “susceptible to reasonable verification by the public.” Id. at 441. The court did not require any showing that one or more persons had been actually confused or misled by the materials.

The purpose of the rules is to protect the public from deceptive advertising, which the Supreme Court has recognized as a substantial governmental interest. Texans Against Censorship, Inc., 888 F.Supp. at 1348 (citing Edenfield v. Fane, 507 U.S. 761, 768, 113 S.Ct. 1792, 1799, 123 L.Ed.2d 543 (1993)). A federal court has recognized that one advantage to Texas’s advertising filing requirements is that

the state bar is not required to rely on consumers, who may not have enough information about the legal system in general, or a particular lawyer, to detect false or misleading advertising from lawyers. The state bar will not be forced to rely hereafter on consumers, to find deceptive advertising or misleading solicitation letters. Instead, the filing process will enable the state bar itself to winnow false or deceptive advertising from truthful advertising.

Id. at 1364.

The evidence at trial showed that the advertisements did not identify Rodgers, the only attorney available through the hotline was Rodgers, and the caller did not learn the name of the attorney he would be referred to until he pressed “0.” Thus, the only way a person could verify which attorney’s office he would be speaking to was to actually connect to the attorney’s office. This type of advertising creates the same types of problems as the use of a trade name, which is inherently misleading: a potential consumer has no name or other information to help her evaluate whether she wants to contact a particular attorney prior to being connected to that attorney’s office. In fact, this advertisement is similar to a sample advertisement that the State Bar published as an example of a noncompliant advertisement in a 1995 Texas Bar Journal article that Rodgers included as one of this trial exhibits. That advertisement listed no attorney name or office information, just a telephone number and two trade names, “Child Support & Locating Clinic” and “Debt Relief Clinic.” 58 Tex. B.J. 664 (1995).

We hold that the evidence is legally and factually sufficient to support the jury’s finding that Rodgers made a false or misleading communication in violation of rule 7.02(a). We overrule Rodgers’s first issue.

Whether Presence of Required Disclaimers in Second Part of Message Satisfies Rule 7.04

In his third issue, Rodgers claims that as a matter of law, he did not violate rule 7.04(b) and (j), which require that an advertisement in the public media contain certain disclaimers, because even though the disclaimers were not included in the print advertisement, they were included in the audio recording once a customer pressed the button indicating he wanted to speak to an attorney. He contends that the advertisement becomes a lawyer advertisement only when the caller presses the button indicating he or she wants to speak to a lawyer. Rodgers concedes, however, that if the disclosures are to be required in the print portion of the advertisement, then he violated rule 7.04(b) and (j). Tex. DisciplinaRY R. Peof’l Conduct 7.04(b), (j).

Rodgers contends that we must determine whether the disclaimers were required in the print portion of the advertisement by applying the “anti-dissection” rule set forth in Lanham Act and trademark infringement cases. Again, Rodgers has not cited any cases indicating that these legal authorities have been applied in an attorney disciplinary case, nor do we believe they are appropriately applied to the attorney advertising context.

Comment 14 to rule 7.04 provides that the rule was meant to protect the public from being misled by attorney advertisements as to “the fees that will be charged, the location where services will be provided, or the attorney who will be performing these services.” Id. 7.04 cmt. 14. One of the purposes of the rule is to “prohibit the same sort of ‘bait and switch’ advertising tactics by lawyers that are universally condemned.” Id.

As we have previously discussed, an advertisement can be misleading by omission. In an advertisement such as Rodgers’s, a caller wishing to speak to an attorney cannot verify any information regarding that attorney before pressing the button to speak to an attorney. CLD claims that “[o]ne of the fundamental purposes behind Rule 7.04 is to allow consumers to make an informed choice before seeking legal services, by ascertaining the names (and reputations), locations, and qualifications of potential attorneys.” By not including his name or any of the required disclosures in the print portion of the advertisement, Rodgers violated this purpose. Thus, we hold that as a matter of law, the disclaimers were required to be in the printed portion of the advertisement. We overrule Rodgers’s third issue.

Whether Rodgers’s Advertisement Violated Rule 7.07(b)

The jury concluded that Rodgers violated rule 7.07(b) by failing to file the advertisement with the State Bar Advertising Review Committee (ARC) before its first dissemination. Rodgers disputes this finding on two grounds: (1) the rule does not apply to advertisements submitted before July 29, 1995 when the filing requirement first became effective and (2) it was CLD’s burden to procure a finding that the public service announcement exception to the rule did not apply, and CLD did not. Rodgers argues that because CLD did not conclusively prove the nonexistence of the exemption, he could not have violated the rule.

Whether Pre-1995 Advertisements are “Grandfathered” Out of Rule 7.07(b) Filing Requirements?

Rule 7.07(b) provides that “a lawyer shall file with [ARC], either before or concurrently with the first dissemination of an advertisement in the public media, a copy of that advertisement.” Tex. Disciplinary R. Prof’l Conduct 7.07(b). Rodgers contends that this rule does not apply to his 1997 advertisement because it was first disseminated in 1994, before the effective date of the rule. CLD contends that the phrase “first dissemination of an advertisement in the public media” means the first dissemination after the effective date of the rule.

To determine which interpretation of the rule is correct, we must employ common rules of statutory construction. See O’Quinn v. State Bar of Tex., 768 S.W.2d 897, 399 (Tex.1988) (holding that the rules of disciplinary conduct are to be treated like statutes). Our primary objective in construing a statute is to determine and give effect to the drafters’ intent. See Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex.1997) (orig.proceeding); Finley v. Steenkamp, 19 S.W.3d 533, 542 (Tex.App.-Fort Worth 2000, no pet.). If possible, we are to discern intent from the plain meaning of the words of the statute. See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999); Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex.1993); Finley, 19 S.W.3d at 542. We do not, however, interpret statutory language so rigidly “that the almost certain intent of the [drafter] is disregarded.” City of LaForte v. Barfield, 898 S.W.2d 288, 292 (Tex.1995); Finley, 19 S.W.3d at 542. Instead, the court must consider the consequences that would follow from its construction of a statute and avoid absurd results. See Tex. Gov’t Code Ann. § 311.023; Sharp v. House of Lloyd, Inc., 815 S.W.2d 245, 249 (Tex.1991); Finley, 19 S.W.3d at 542. Moreover, intent must be determined from the entire act, not from isolated portions thereof. See Jones v. Fowler, 969 S.W.2d 429, 432 (Tex.1998); Finley, 19 S.W.3d at 543.

The amendments to the advertising rules were promulgated in response to the perception that the prior rules did not adequately protect Texas citizens from false or deceptive lawyer advertising and solicitation. See Texans Against Censorship, Inc., 888 F.Supp. at 1335, 1348. As an example of the problem the State Bar faced in enforcing the advertising rules, the Texans Against Censorship case pointed to a misleading attorney solicitation letter that was sent to between 300,000 and 400,000 recipients; none of the recipients ever brought the misleading nature of the letter to the attention of the attorney or the State Bar. Id. at 1364. The court stated that “[c]learly, if a lawyer is able to distribute 300,000 to 400,000 misleading solicitation letters without reprisal, the state bar’s discernment of an enforcement problem is well-founded. Moreover, a filing system provides the state bar an effective oversight procedure to prevent consumer deception.” Id. Thus, the purpose of the filing rules is to provide a more effective mechanism for the State Bar to identify nonconforming advertisements than under the prior rules.

Although an attorney may apply for preapproval of an advertisement, pre-approval is not required. Tex.R. DisciplinaRY Conduct 7.07 cmt. 4. Rule 7.07 provides that filing may be made “concurrently with” the first dissemination of an advertisement. Id. 7.07(b). Along with a copy of the advertisement, the attorney must file “a statement of when and where the advertisement has been, is, or will be used.” Id. 7.07(b)(3) (emphasis added). Furthermore, the rule contains an extensive list of advertisements that are exempt from the filing rules, but does not explicitly exempt advertisements that were first disseminated before rule 7.07 took effect. See, e.g., Unigard Sec. Ins. Co. v. Schaefer, 572 S.W.2d 303, 307 (Tex.1978) (holding that when statute contains specific exclusions or exceptions, no others usually apply).

Considering the purpose of the rule, along with the plain language of the entire rule taken together, we construe the rule as requiring an advertisement to be filed upon its first dissemination after July 29, 1995, the effective date of the rule. Were we to hold otherwise, we would be subverting the purpose of the rule by allowing a significant amount of pre-existing advertising to be exempt from the Bar’s only effective enforcement mechanism for protecting consumers from false and misleading attorney advertising. See Tex. Gov’t Code Ann. § 311.021 (presuming that public interest is favored over private interest when statute enacted), § 311.023 (providing that in construing statute court may consider “object sought to be attained,” “circumstances under which the statute was enacted,” and “consequences of a particular construction”).

We hold that the filing requirements of rule 7.07 apply to advertisements previously submitted before the effective date of rule 7.07 that are also being submitted for the first time after the effective date of the rule.

Who Had the Burden to Prove the Advertisement was not a Public Service Announcement?

An advertisement is not subject to the filing requirement if it contains only information that “the lawyer or firm is a sponsor of a ... public service announcement.” TEX.R. DISCIPLINARY P. 7.07(d)(l)(x). The trial court’s charge asked the jury, “Do you find that [Rodgers] published advertisements indicating that he was the sponsor of a public service announcement?” The jury answered “no” as to all three advertisements. Rodgers contends the court’s charge misplaced the burden of proof, requiring Rodgers to prove that the advertisement was a public service announcement, rather than requiring CLD to prove that Rodgers did not sponsor a public service announcement. We disagree.

This case is similar to State Bar of Texas v. Dolenz, in which Dolenz was accused of violating former State Bar Rule 5-104. 3 S.W.3d 260, 266 (Tex.App.-Dallas 1999, no pet.). Former rule 5-104 provided that “[a] lawyer shall not enter into a business transaction with a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the protection of the client, unless the client has consented after full disclosure.” Tex. State Bar R., art. XII, § 8, DR 5-104(A) (Tex.Code of Profl Resp.), 34 Tex. B.J. 758 (1971, superseded 1990). There was no evidence in the record showing that Dolenz failed to disclose the situation to the client, nor was there any evidence the client refused consent. But the Bar contended that whether Dolenz made a full disclosure and whether the client consented was in the nature of an affirmative defense that Dolenz had the burden of proving. Dolenz, 3 S.W.3d at 266-67.

The court of appeals agreed with the Bar, holding that whether the client had consented after full disclosure was a matter constituting an avoidance or affirmative defense to the Bar’s allegation that Dolenz had entered into an improper business relationship with his client. Id. at 267; see Tex.R. Civ. P. 94. An affirmative defense establishes an independent reason why the plaintiff should not recover on its asserted cause of action. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 212 (Tex.1996); Aviation Composite Techs., Inc. v. CLB Corp., 131 S.W.3d 181,189 (Tex.App.Fort Worth 2004, no pet.).

Here, CLD claimed that Rodgers violated rule 7.07(b) by failing to submit the advertisement to the ARC. Rodgers admits he did not submit the advertisement for review, but contends that he was not obligated to do so because it fits one of the exceptions to the rule. Thus, Rodgers asserts an independent reason why CLD should not recover on its claim that he violated rule 7.07(b) and had the burden of proof on that issue. Because Rodgers had the burden of proof, his challenge on appeal that CLD failed to conclusively prove the advertisement was not a public service announcement fails. We overrule Rodgers’s fourth issue.

Is Fons’s Testimony Reliable?

Rodgers further complains about the trial court’s admission into evidence of the expert testimony of Lynette Fons, who opined that the advertisements violated the foregoing disciplinary rules. Rodgers claims that Fons used the wrong legal standards to determine whether violations occurred, that she was unqualified, and that her testimony is unreliable. Rodgers bases this claim on the fact that Fons’s position did not require her to — and she never attempted to in this case — have contact with the public about the advertisements she reviewed to determine if a member of the public was actually misled by the advertisement. Also, while she opined that the advertisement was not a public service announcement, she admitted she was not an expert on public service announcements.

Texas Rule of Evidence 702 governs the admissibility of expert testimony. Tex.R. Evid. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex.1995). Rule 702 provides, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Tex.R. Evid. 702.

Once the opposing party objects to proffered expert testimony, the proponent of the witness’s testimony bears the burden of demonstrating its admissibility. Guadalupe-Bianco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002); Robinson, 923 S.W.2d at 557. To be admissible, the proponent must demonstrate that (1) the expert is qualified and (2) the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807.

We review the court’s determination under an abuse-of-discretion standard. See Kraft, 77 S.W.3d at 807; Helena Chem. Co., 47 S.W.3d at 499; Robinson, 923 S.W.2d at 558. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. See Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.2002); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 241-42.

An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002); Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied). An appellate court must uphold the trial court’s evidentiary ruling if there is any legitimate basis in the record for the ruling. Owens-Coming Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998).

Fons testified that she is a lawyer in Houston and that her primary practice is trial work. She has been licensed since 1985. Since June 2002, Fons had been chairperson of the ARC. She had been a member of the committee since 1998. Fons testified that the committee meets every month and has reviewed hundreds of attorney advertisements.

Fons testified that she read and spent hours reviewing the disciplinary rules related to attorney advertising, materials the committee provides to lawyers about the advertising rules, and ethics opinions regarding attorney advertising. She has also given CLE presentations on the advertising rules. Based on the evidence before the trial court, we cannot say the trial court abused its discretion in determining that Fons was qualified.

Rodgers contends that Fons based her opinions on incorrect legal standards; these contentions correspond to his proposed interpretations of the rules. Having already rejected Rodgers’s interpretations of these rules, however, we do not believe that the fact Fons did not base her opinions on those interpretations makes her testimony unreliable. In addition, although she did testify that she was not an expert on public service announcements, CLD was not required to introduce expert testimony as to whether the advertisement qualified as a public sendee announcement. As we have previously held, it was Rodgers’s burden to do so.

Furthermore, even without considering Fons’s testimony, the evidence presented at trial is sufficient to support the jury’s findings; thus, Fons’s testimony was merely cumulative of the other evidence in the case. See Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000). Accordingly, we cannot conclude that the trial court abused its discretion in admitting Fons’s testimony. We overrule appellant’s fifth issue.

Did the Trial Court Abuse its Discretion in Setting Rodgers’s Punishment?

Rodgers contends the trial court abused its discretion in sentencing him to a two-year, fully probated suspension because, “under the circumstances of this case, the sanction imposed smacks of punishment for [Rodgers] exercising [his] legal rights to determine how the [rules] should be applied to [his] advertising approach.” According to Rodgers, the fact that he chose to litigate this issue rather than change his advertisement is justified in light of the prior State Bar ruling that his advertisement did not violate the trade name prohibition and the settlement he entered into with Southwestern Bell, and he should have received no more than a public reprimand.

Sanctions for professional misconduct may include disbarment, resignation in lieu of disbarment, indefinite disability suspension, suspension for a certain term, probation of suspension, interim suspension, public reprimand, and private reprimand. Tex.R. DisciplinaRY P. 1.06(Y), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-1 (Vernon Supp. 2004-05). A trial court has broad discretion to determine the consequences of professional misconduct. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 659 (Tex.), cert. denied, 512 U.S. 1236, 114 S.Ct. 2740, 129 L.Ed.2d 860 (1994); Curtis v. Com’n for Lawyer Discipline, 20 S.W.3d 227, 234-35 (Tex.App.-Houston [14th Dist.] 2000, no pet.); Love v. State Bar of Tex., 982 S.W.2d 939, 944 (Tex.App.-Houston [1st Dist.] 1998, no pet.). However, the judgment of a trial court in a disciplinary proceeding may be so light or heavy as to amount to an abuse of discretion. Kilpatrick, 874 S.W.2d at 659; Love, 982 S.W.2d at 944.

An appellate court should reverse the trial court’s decision only if an abuse of discretion is shown. Love, 982 S.W.2d at 944. The court must consider the following factors in determining the appropriate sanction: (1) the nature and degree of the professional misconduct for which the respondent is being sanctioned; (2) the seriousness of and circumstances surrounding the professional misconduct; (3) the loss or damage to clients; (4) the damage to the profession; (5) the assurance that those who seek legal services in the future will be insulated from the type of professional misconduct found; (6) the profit to the attorney; (7) the avoidance of repetition; (8) the deterrent effect on others; (9) the maintenance of respect for the legal profession; (10) the conduct of the respondent during the course of the CLD action; (11) the trial of the case; and (12) other relevant evidence concerning the respondent’s personal and professional background. Tex.R. Disciplinary P. 3.10; Kilpatrick, 874 S.W.2d at 659; Curtis, 20 S.W.3d at 235.

Although a prior State Bar grievance committee determined that Rodgers did not violate the version of the trade name rule in effect in 1994 — which did not include the prohibition against advertising under a trade name — a grievance committee decision not to prosecute has no res judicata or collateral estoppel effect, which Rodgers concedes. In addition, the State Bar was not a party to the 1997 settlement with Southwestern Bell, and there is no evidence that it agreed the advertisement did not violate the advertising rules. See Kilroy v. Kilroy, 137 S.W.3d 780, 787 (TexApp.-Houston [1st Dist.] 2004, no pet.) (holding that one of multiple parties who did not sign rule 11 agreement between other parties was not bound by agreement). Furthermore, the trial court noted that the ARC gave Rodgers an opportunity to submit the advertisement for review in order to comply with the filing requirement, but he refused to do so. Finally, Rodgers admitted that he probably would have changed his advertising to appease the ARC or discontinued it altogether if CLD had sued him timely. In light of the foregoing, we cannot conclude that the trial court abused its discretion in imposing a two-year, fully probated suspension against Rodgers.

Accordingly, we overrule Rodgers’s sixth issue.

Conclusion

Having overruled Rodgers’s issues on appeal, we affirm the trial court’s judgment.

      . Yet Rodgers concedes that this is not required in order for a statute placing boundaries on advertising to pass constitutional muster. See, e.g., In re R.M.J., 455 U.S. 191, 202, 102 S.Ct. 929, 937, 71 L.Ed.2d 64 (1982) (holding that regulation is permissible when an advertisement is inherently likely to deceive or has a history of being deceptive).

      . In his answer, Rodgers placed this contention under the heading of affirmative defense.

      . Rodgers does not challenge the jury's failure to find in his favor on this question.

      . See, e.g., Gonzalez v. State Bar of Texas, 904 S.W.2d 823, 830-31 (Tex.App.-San Antonio 1995, writ denied).


author: STEVE McKEITHEN, Chief Justice.

text:
    Jeffery Kyle KEY, Appellant, v. The STATE of Texas, Appellee.
    No. 09-03-503 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted on Oct. 1, 2004.
    Delivered Dec. 8, 2004.

      John D. MacDonald, II, Conroe, for appellant.
    Michael A. McDougal, Dist. Atty., Frances Madden, Sylvia Yarborough, Michael C. Young, Asst. Dist. Attys, Conroe, for state.
    Before McKEITHEN, C.J., BURGESS and GAULTNEY, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

A jury convicted appellant, Jeffery Kyle Key, of capital murder. Because ten or more of the jurors answered “No” to the first special issue, the trial court was required to sentence appellant to life in the Texas Department of Criminal Justice, Correctional Institutions Division. See Tex.Code Crim. Proc. Ann. art. 37.071, sec. 2(d)(2); (g) (Vernon Supp.2004). Along with three co-defendants, appellant was charged with capital murder alleged, in pertinent part, as follows:

Jeffery Kyle Key, ... on or about July 04, 2002, ... did then and there intentionally cause the death of an individual, namely, [S.P.], by hitting [S.P.] in the head with a piece of wood and hitting [S.P.] in the head with a metal tire tool, and the Defendant was then and there in the course of committing or attempting to commit the offense of Robbery of [S.P.], ...

Appellant raises four issues for our consideration. Finding no error, we affirm.

Issues one and two complain of the lack of legally and factually sufficient evidence to sustain the verdict of capital murder. A legal sufficiency issue requires the reviewing court to view the 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 charged beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App.2004). This standard is meant to give “full play to the [jury’s] responsibility fairly” to “draw reasonable inferences from basic facts to ultimate facts.” See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). With a factual sufficiency complaint, the reviewing court considers all of the evidence in a neutral light, and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Ross, 133 S.W.3d at 620. A person commits capital murder if he intentionally commits murder in the course of committing or attempting to commit robbery. See Tex. Pen.Code Ann. § 19.03(a)(2) (Vernon 2003); Herrin v. State, 125 S.W.3d 436, 440 (Tex.Crim.App. 2002). Under both issues, appellant’s particular complaint is that the evidence is insufficient to show he committed the murder “while committing the underlying offense of Robbery.”

To sustain the conviction, the State was required to elicit evidence that appellant was in the course of robbing or attempting to rob the victim, S.P., when he murdered him. Herrin, 125 S.W.3d at 440. This is so because, if the robbery was committed as an afterthought and unrelated to the murder, the State has not proven the murder was committed in the course of the robbery. See Alvarado v. State, 912 S.W.2d 199, 207 (Tex.Crim.App.1995). In his brief, appellant appears to concede that he participated in the murder of S.P. However, appellant argues that the evidence indicates S.P. was murdered because appellant and his co-defendants believed S.P. to be “related to Bin Laden,” or that S.P. was “one of Bin Laden’s people,” making the motive for the murder “hate” rather than to facilitate a theft.

Among the numerous witnesses testifying for the State were appellant’s co-defendants: Robert Rhodus, Willie Glenn, and Genaro Morales. As these men were accomplices to the charged offense as a matter of law, the trial court instructed the jury with regard to the proper consideration of their testimony. See Tex.Code Crim. Proc. Ann. art. 38.14 (Vernon 1979); Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim.App.2002). The trial court also instructed the jury on the law of parties by abstract definitions and by applying said law in an alternative application paragraph. See Tex. Pen.Code Ann. §§ 7.01-7.03 (Vernon 2003). We note that appellant does not contend that there was insufficient corroborating evidence so that the accomplice-witness testimony must be disregarded, nor does he argue that the evidence was either legally or factually insufficient to convict him as a party to the capital murder.

The combined testimony elicited from the accomplice witnesses indicates that, on the early evening of July 4, 2002, the four men — appellant, Rhodus, Glenn, and Morales — left appellant’s residence in a red Grand Am belonging to appellant’s wife, Brandy, for a night of hit-and-run aggravated robberies, or “jackings” per their vernacular. The four men had initially committed one aggravated robbery when, while prowling for another victim, they spotted S.P. as he was closing and locking the convenience store where he worked.

Testimony reflected that the four men parked their vehicle, and appellant and Rhodus exited while Glenn and Morales remained in the vehicle. Appellant was carrying a “Mac. 11” (or “Mac 10”) and Rhodus was carrying a .22 caliber handgun. By that time, S.P. had already entered his vehicle, a dark-colored Toyota Camry. Appellant approached the Toyota on the driver’s side and Rhodus on the passenger’s side. Rhodus recalled the situation as follows:

Q.[State]: When you and Jeffrey got out of the car, what did you do?

A.[Rhodus]: We ran down the road, and we went to the dude.

Q. You went to the dude?

A. To the car.

Q. Would that be the car that you described before in front of the Chevron station?

A. Yes, ma’am.

Q. What happened when you got to the dude?

A. We — we—we went. I went to the passenger’s side and he went to the driver’s side, and he put the gun to the window and he made him roll down the window.

Q. When you say “he,” who do you mean?

A. Jeffrey.

Q. And Jeffrey made the man roll down the window?

A. Yes.

Q. Then what happened?

A. Then he was telling him to “give me the money,” and he didn’t want him to give him no money.

Q. The dude didn’t want to give—

A. Jeffrey the money.

Q. So then, what happened?

A. Jeffrey told me to get in. And I got in. And he got in the passenger’s side, he came around and got in the passenger’s side.

Q. Where did you get?

A. In the back driver’s side.

Q. Who was driving?

A. The — the dude.

Q. And was he from this country?

A. No, ma’am.

Q. The dude? I’m sorry.

A. No, ma’am, he was like Pakistanian [sic].

Q. Or from some country around there?

A. Yeah.

Q. What did you do after you and Jeff got into the car with the dude?

A. We — he told him to back out. And we drove down West Mount Houston and we passed the other car. We—

Q. By the “other car,” which car are you talking about?

A. The Grand Prix.

Q. The red one?

A. Yes, the Grand Am.

Q. Who was in the red Grand Am?

A. Willie Joe Glenn and Genaro Morales.

Each of the accomplices further testified that S.P. was driven to a remote location in Montgomery County, stripped of his clothing, and brutally beaten and strangled. All three of the accomplices admitted to having assaulted S.P., but all three agreed that it was appellant who strangled S.P. and then beat S.P. about the face and head with a tire tool. Appellant and Rhodus then dragged S.P. to an area near the woods and covered him with debris. Following this, appellant and Rhodus left the scene in the victim’s Toyota, and Glenn and Morales left in the red Grand Am. The men returned to appellant’s trailer-home, cleaned up, and again left the residence in S.P.’s Toyota to continue their “jacking” spree. The following day, appellant decided that the victim’s Toyota had to be burned so he, Glenn, and Morales left appellant’s trailer-home and returned to Montgomery County, where appellant burned the Toyota.

The State also elicited testimony from an individual, David Perez, who first met appellant at an apartment where a group of people were “getting high.” Appellant and Perez, along with Willie Glenn, committed robberies together at some point following the murder of S.P. On the night of their initial meeting, Perez accompanied appellant to appellant’s trailer-home. Perez recounted the conversation with appellant at the trailer as follows:

Q.[State]: The second time you were at Jeff’s house, what did Jeff talk to you about?

A.[Perez]: About the Pakistani, or whatever he was, I don’t know.

Q. The Pakistani man. What did Jeff ask you about the Pakistani man? What did he tell you about the Pakistani man?

A. He had told me nothing, just kind of, just told me about what happened.

Q. What did he say happened?

A. They robbed him and killed him.

Q. Did he say who was with him?

A. He named Willie, him and Willie were there, and he said there were two other people.

Q. What, if anything, did he indicate to you about ny of the Pakistani man’s clothing?

A. About his shoes.

Q. What did he say about the shoes?

A. If I wanted to walk in a dead man’s shoes.

Q. Did he show you any shoes?

A. Yes, ma’am.

[Perez identifies State’s Exhibit No. 116 as the shoes appellant showed him.]

Q. How did he say it happened?

A. Just, they robbed him and' — ■

Q. What else?

A. And they beat him up, took him in his ear, dumped him.

Q. What else did he tell you?

A. Just how he kind of did it, that’s all, I mean.

Q. Who did Jeff say killed the guy?

A. He told — from my understanding, they twisted his neck.

Q. Who twisted his neck?

A. Supposedly he did.

Q. Who did Jeff tell you killed the guy?

A. Jeff did.

Q. That Jeff killed the guy?

A. (Witness nods head).

The State also provided the jury with testimony from appellant’s wife, Brandy Key. On the night of the murder, Mrs. Key testified that appellant, Rhodus, Glenn, and Morales had already robbed someone earlier in the evening when the men left the trailer again. She stated that the four men left the trailer driving her red Grand Am, but when they returned at approximately 1:30 a.m., they returned in two vehicles — her red Grand Am and a dark-colored Toyota Camry. When the four men entered the trailer, she noticed blood on all four of them. Appellant had blood on his left forearm. When she saw all the blood, Mrs. Key “freaked out,” at which point she and appellant went into the bedroom. Appellant then told her that the four men had “gotten into a fight” and that appellant believed “they had killed a guy.” Mrs. Key further testified that appellant related to her that the man was beaten “pretty bad,” and that the man’s head was “cracked open.” Mrs. Key also stated that appellant and the other three men brought home the man’s pants, shirt, and vehicle. Detailed testimony from Mrs. Key indicated that appellant told her that he, Rhodus, Glenn, and Morales kicked the man, hit him in the head with a gun, and hit him in the head with a pipe or tool. She then stated that appellant told her that he and the other men made the victim take off all his clothes, “robbed him, made him say he was a bitch and that he was related to Bin Laden.”

Taking the evidence in the light most favorable to the verdict, we find any rational trier of fact could have found appellant murdered S.P. in the course of committing or attempting to commit robbery. A person commits the offense of robbery if, in the course of committing a theft, the person causes bodily injury to another or the person threatens or places another in fear of imminent bodily injury or death. See Tex. Pen.Code Ann. § 29.02 (Vernon 2003). The above-referenced testimony indicates that appellant initially threatened the victim with a firearm and demanded money. When the victim refused, appellant and another armed accomplice forced their way into the victim’s vehicle, drove the victim to an isolated location, brutally murdered him, and stole his clothes and vehicle. Some of the victim’s clothes were subsequently found in appellant’s trailer-home during a search by authorities. In his conversation with Perez, appellant admitted he robbed and murdered the victim. Appellant admitted to his wife that the victim was robbed and beaten to death. While there was much more evidence in the record circumstantially tying appellant to the crime, the above-referenced testimony is direct evidence of appellant’s involvement and direct complicity in the robbery and beating-death of the victim, S.P. Furthermore, the record reflects appellant’s motive for the many robberies was his significant cocaine habit. We overrule issue one.

We now consider factual sufficiency. The only evidence we are directed to by appellant in support of his contention that S.P. was not murdered in the course of a robbery, but because of his ethnicity or nationality, is set out in the following manner in his brief:

The State presented in the testimony of Brandy Key indicating [sic] that the appellant had joined in the beating of [S.P.] because he was Pakistani and “related to Bin Laden” and because it made him feel like he “did something good for his country.” (RR.XI, 118) During the appellant’s case, testimony was offered that the appellant referred to [S.P.] as “one of Bin Laden’s people” in a conversation with David Perez. (State’s Exhibit Number 13)[sic]

While the victim’s ethnicity or nationality may have played some part in the brutality of the murder, our review of the entire record indicates that hit-and-run aggravated robbery, or “jacking,” was virtually a fixture in appellant’s life and apparently how he acquired the funds necessary to support his substantial drug habit. There is absolutely no evidence from the testimony of Rhodus, Glenn, or Morales that S.P. was chosen because of his ethnicity or nationality. Appellant and his co-defendants were out to do “jackings,” i.e., to unlawfully acquire money or property from random victims at gunpoint. The evidence that the murder was committed in the course of robbing S.P. is overwhelming. The statements attributed to appellant that the murder was representative of some sort of twisted, “patriotic” political statement by appellant does not overcome the direct evidence that the murder was indeed committed in furtherance of a robbery. We are not directed to any other evidence to the contrary. We find the record contains factually sufficient evidence to sustain appellant’s conviction for capital murder. Issue two is overruled.

Issues three and four complain of the trial court’s refusal to provide the jury with an instruction on the lesser included offense of murder. We first address issue four, as it complains of'the trial court’s refusal to provide the jury with appellant’s specially requested charge on the lesser included offense of murder. Article 36.15 of the Texas Code of Criminal Procedure provides either party in a criminal trial the opportunity to present to the trial court particular instructions and to request said instructions be given to the jury. See Tex.Code Grim. Proc. Ann. art. 36.15 (Vernon Supp.2004). The rule further allows a party to dictate the proposed instructions to the court reporter in lieu of submitting the proposed instructions in writing. The record of the instant case reflects that appellant presented written proposed instructions to the trial court. However, the text of these proposed instructions does not appear in either the reporter’s record or the clerk’s record. We overrule issue four as appellant has not presented us with an adequate record to address the issue.

The basis of appellant’s complaint under issue three is that the “hate-crime” testimony was sufficient to raise the issue that S.P. was murdered because of his ethnicity or nationality, not in the course of the commission of a robbery. The Court of Criminal Appeals has adopted a two-step test to determine when a charge on a lesser included offense should be given. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App.1985); Royster v. State, 622 S.W.2d 442, 444 (Tex.Crim.App.1981).

The first step is to decide whether the offense comes within Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). This is usually stated as “the lesser included ofi fense must be included within the proof necessary to establish the offense charged.” See, e.g., Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App.1993); Aguilar, 682 S.W.2d at 558. In the instant case, there is no dispute that murder is a lesser included offense of capital murder. See Feldman v. State, 71 S.W.3d 738, 750 (Tex.Crim.App.2002); Cardenas v. State, 30 S.W.3d 384, 392 (Tex.Crim.App.2000). The first step of the Aguilar/Rousseau test is satisfied.

The second step of the test requires an evaluation of the evidence to determine whether there is some evidence that would permit a rational jury to find that the defendant is guilty only of the lesser offense. See Schweinle v. State, 915 S.W.2d 17, 18 (Tex.Crim.App.1996); Rousseau, 855 S.W.2d at 672; Aguilar, 682 S.W.2d at 558. The evidence must be evaluated in the context of the entire record. See Ramos v. State, 865 S.W.2d 463, 465 (Tex.Crim.App.1993) (“[A] statement made by a defendant ‘cannot be plucked out of the record and examined in a vacuum’ in a lesser included offense analysis.”)(citing Godsey v. State, 719 S.W.2d 578, 584 (Tex.Crim.App.1986)). There must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser included offense; and anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994). In essence, the evidence must establish the lesser included offense as a valid rational alternative to the charged offense. See Mathis v. State, 67 S.W.3d 918, 925 (Tex.Crim.App.2002); Wesbrook v. State, 29 S.W.3d 103, 113 (Tex.Crim.App.2000).

The record contains a significant amount of evidence indicating that “jacking” people was an essential part of appellant’s life. Willie Glenn testified that he and appellant had committed approximately fifteen to twenty of these robberies. Indeed, the record indicates that, on the nighi/early morning of July 4/5, 2002, appellant and his three co-defendants committed at least four, possibly five, armed robberies, including the robbery of S.P. The fact that S.P. was the only robbery victim who was murdered that night does not rise to “some evidence” from which a rational jury could have acquitted appellant of capital murder while convicting him only of murder, even when coupled with the derogatory comments by appellant regarding S.P.’s ethnicity or nationality. The fact that appellant’s brutal treatment of S.P. may have been motivated in part by S.P.’s race or nationality does not negate the overwhelming evidence that appellant supported a significant cocaine habit by robbing people at gunpoint. See Schweinle, 915 S.W.2d at 19 (The lesser included offense may be raised if evidence either affirmatively refutes or negates an element establishing the greater offense.). The three or four “Bin Laden” remarks by appellant do not amount to evidence upon which a jury could rationally entertain a reasonable doubt that a robbery or attempted robbery had been committed in light of the events surrounding the murder of S.P. The purpose of the confrontation with S.P. was to rob him. We have absolutely no evidence indicating any other motive for S.P.’s “selection” other than “jacking.” We find appellant has failed to meet the second prong of the Aguilar/Rousseau test. Issue three is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

      . The first special issue asks whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. See Tex.Code Crim. Proc. Ann. art. 37.071, sec. (2)(b)(l) (Vernon Supp.2004).

      . The evidence indicated that S.P. was of Pakistani nationality.

      . The judgment reflects appellant's first name spelled as ''Jeffery.” However, we will not correct the reporter’s record’s use of ''Jeffrey" in the reported testimony.

      . This record-reference to “State’s Exhibit Number 13” with regard to appellant’s statement to Perez is incorrect. State’s Exhibit 13 is a photograph of the Chevron Mart store where S.P. was employed at the time of his murder.